PCRLJ 2003 Judgments

2003 P Cr. L J 252

[Federal Shariat Court]

Before Sardar Muhammad Dogar, J

NAZAR HUSSAIN ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.247/L of 2002, decided on 14th November, 2002.

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

‑‑‑‑Art. 4‑‑‑Penal Code (XLV of 1860), Ss. 166 & 193‑‑‑Joinder of charges‑‑‑Joint trial‑‑‑Validity‑‑‑Separate challans had been submitted to Court against two accused persons and they were not only tried together but had been charged together and prosecution evidence was recorded during the same trial‑‑‑Offence had been committed by both the accused independently without any pre‑concert or planning‑‑‑Joint trial, thus, had obviously caused prejudice to the accused which was illegal‑‑‑Impugned judgment was consequently set aside and the case was remanded to Trial Court for retrial in accordance with law.

Noor Din v. The State PLD 1952 Lah. 185; Almas Ali Khan v. The State PLD 1959 Dacca 711; Ali Nawaz v. The State PLD 1960 (W.P.) Kar. 287; 1970 PCr.LJ 133; PLD 1964 SC 120; AIR 1955 All. 620; AIR 1927 520; PLD 1996 (sic) 529; 1996 MLD 1639 and Muhammad Abdul Rauf v. The State PLD 1958 SC (Pak.) 131 ref.

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

‑‑‑‑Ss. 233 to 239‑‑‑Joint trial‑‑‑Prejudiced‑‑‑Where the accused is found to have been prejudiced due to joint trial or on the basis of joint charges, the judgment cannot be maintained due to such illegality.

Noor Din v. The State PLD 1952 Lah. 185; Almas Ali Khan v. The State PLD 1959 Dacca 711; Ali Nawaz v. The State PLD 1960 (W.P.) Kar. 287; 1970 PCr.LJ 133; PLD 1964 SC 120; AIR 1955 All. 620; AIR 1927 (sic) 520; PLD 1996 (sic) 529; 1996 MLD 1639 and Muhammad Abdul Rauf v. The State PLD 1958 SC (Pak.) 131 ref.

Syed Almas Haider Kazmi for Appellant.

Muhammad Akbar Tarrar, Asstt. A.‑G. with Asghar Ali Hashmi for the State.

Date of hearing: 14th November, 2002.

2003 P Cr. L J 402

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, Actg. C.J.

Mst. SITARA BIBI---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1/P in Criminal Appeal No.2/P of 2003, decided on 3rd February; 2003.

Criminal Procedure Code (V of 1898)---

----S. 426---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10, 11 & 19---Penal Code (XLV of 1860), S.494---Suspension of sentence---Contention of the female accused was that since a suckling child had been kept in jail where he was suffering for want of proper care and medical facilities as the Jails in Pakistan did not cater for the needs of infants and sentence recorded against the accused was short, therefore, pending decision of her appeal, the accused be released on bail--­Validity---Jails in Pakistan did not normally provide for, the facilities which were needed for the upbringing of small children and babies--­Welfare of baby, therefore, demanded that his mother was to be kept in better living conditions/environment, where she was not only be able to take care of herself but look after and bring her child up according to the modern living standards, besides, providing suitable medical facilities to him in the hour of need which was not possible in jail---Federal Shariat Court allowed the application for suspension of the operation of impugned judgment and accused lady was released on bail on her furnishing surety in the sum of Rs.20,000 with one surety and P.R. Bond in the like amount to the satisfaction of the Trial Court.

Mst. Nusrat v. The State 1996 SCMR 973; Liaqat and another v. The State 1999 PCr.LJ 1004; Mst. Nasreen v. The State 1998 MLD 1350; Mst. Ansar Jan v. The State and another 2000 PCr.LJ 586; Abdul Hameed v. Muhammad Abdullah and others 1999 SCMR 2587 and Ghamidiyyah, Decision made by Holy Prophet Muhammad (s.a.w.) ref.

Bakhat Sherwan for Applicant.

Muhammad Sharif Janjua for the State.

2003 P Cr. L J 531

[Federal Shariat Court]

Before Fazal Ilahi Khan, C.J. and Ch. Ejaz Yousaf, J

KHAN SAID and 3 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.150‑I and 30‑P of 2001, decided on 20th May, 2002.

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

‑‑‑‑Ss. 10(3) & 11‑‑‑Penal Code (XLV of 1860), S.149‑‑‑Criminal Procedure Code (V of 1898), S.345‑‑‑Compromise‑‑‑Victim girl as well as her father (complainant) had forgiven the accused and compromised the matter and prayed for reduction in the sentences awarded to accused by Trial Court‑‑‑Federal Shariat Court keeping in view the submissions made by the counsel for the parties, facts of the case and better future relations of both sides maintained the convictions of accused, but substantially reduced their sentences from 15 years' R.I. to 4 years' R.I. and from imprisonment for life to that of already undergone with reduction in fine‑‑‑Sentences of stripes inflicted on the accused were, however, set aside in view of the Abolition of Punishment of Whipping Act, 1996‑‑‑Appeals were disposed of accordingly.

Allah Ditto v. The State 1988 SCMR 1459; Pervez Iqbal v. The State PLD 1985 FSC 134 and Ghulam Rasool and another v. The State 1999 MLD 3085 fol.

Malik Rob Nawaz Noon and Imdad Hussain Adil for Appellants.

M. Sharif Janjua for the State.

Date of hearing: 20th May, 2002.

2003 P Cr. L J 557

[Federal Shariat Court]

Before Sardar Muhammad Dogar, J

MANZOOR AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.286/L of 2002, decided on 22nd October, 2002.

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

----Ss. 10(2) & 16---Appreciation of evidence---None of the prosecution witnesses had stated about the commission of Zina by the accused with the abductee---Statement made by the abductee (acquitted co-accused) under S.342, Cr.P.C. could not have been used against the accused for the reason that she had not made that statement on oath nor was the accused afforded an opportunity to cross-examine her---Said statement, even otherwise, was exculpatory---Conviction of accused under S.10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was consequently set aside---Statement of the abducted regarding her abduction, however, was corroborated by other prosecution witnesses who had no enmity with the accused in any manner--­Conviction of accused under S.16 of the said Ordinance, therefore, warranted no interference and the, same was upheld, but his sentence was substantially reduced in view of the facts and circumstances of the case.

Naveed Inayat Malik for Appellant.

M. Mazhar Sher Awan, Asstt. A.-G. and Saifullah Khan Khalid for the State.

Date of hearing: 22nd October, 2002.

2003 P Cr. L J 593

[Federal Shariat Court]

Before Sardar Muhammad Dogar, J

MUHAMMAD SIDDIQUE and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent `

Criminal Appeal No.240/L of 2000 and Jail Criminal Appeal No.60/I of 2002, decided on 29th April, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑‑Ss. 395 & 412‑‑‑Appreciation of evidence‑‑No identification parade was held in the case‑‑‑Complainant while deposing at the trial did not state that the accused present in Court were the same persons who had robbed him of his car and other articles‑‑‑No evidence was available on record connecting the accused with the commission of offence under S.395, P.P.C. and they were thus acquitted of the said charge‑‑‑Accused, however, had been arrested while travelling in the car of the complainant and incriminating recoveries had been effected from them which had been proved on record‑‑‑Police Officer who had attested the recovery memos had no concern with the complainant and he not being the Investigating Officer was not to earn any credit for arresting the accused‑‑‑Simple and straightforward statement of the said Police Officer was corroborated by other prosecution witnesses and he had also identified the accused present in the Court‑‑‑Number of the car was mentioned in the F.I.R. and the documents pertaining to the same had also been recovered from the accused‑‑‑Conviction of accused under S.412, P.P.C. was consequently, upheld, but their sentence of five years' R.I. was reduced to three years' R.I. with reduction in fine in circumstances‑‑‑Appeals were disposed of accordingly.

Abdul Aziz Khan Niazi and A.H. Masood for Appellants.

Muhammad Ashraf, Asstt. A.‑G. and Miss Naushin Taskeen for the State.

Date of hearing: 29th April, 2002.

2003 P Cr. L J 624

[Federal Shariat Court]

Before Sardar Muhammad Dogar, J

ABBAS and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Revision No.30/L of 2002, decided on 30th May, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 540‑‑‑Constitution of Pakistan (1973), Art.203‑DD‑‑Revision petition‑‑‑Witnesses re‑summoned by Trial Court for correcting error in their statements about time of occurrence‑‑‑Validity‑‑‑Neither the Criminal Procedure Code, 1898, nor the Qanun‑e‑Shahadat, 1984, contained any provision for recalling a witness for examination about a mistake made by him while appearing at the trial, even if such mistake was inadvertently made‑‑‑Authors of law in their wisdom had not added such a provision because that would have amounted to giving a licence to the prosecution to request for recalling any witness for correcting any portion of his statement detrimental to its case‑‑‑Witness, however, could be recalled if he was not examined on some issue pertaining to the case‑‑­State Counsel was also unable to defend the impugned order and the same was set aside accordingly‑‑‑Trial Court, however, had all the powers to interpret any piece of evidence in any manner ,it would feel just after hearing arguments of the parties at the end of the trial‑‑‑Revision petition was accepted.

Mian Muhammad Waheed Akhtar for Petitioners.

Mian Abdul Qayyum Anjum for the State.

Date of hearing: 30th May, 2002.

2003 P Cr. L J 671

[Federal Shariat Court]

Before Ali Muhammad Baloch, J

SARFRAZ KHAN and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Constitutional Revision No.6/K of 1999, decided on 15th March, 2001.

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

‑‑‑Art. 203‑DD‑‑‑Revisional jurisdiction of Federal Shariat Court‑‑­ scope ‑‑‑Revisional jurisdiction of Federal Shariat Court under Art.203‑DD of the Constitution would extend to the examination of correctness, legality or propriety of any finding‑‑‑Federal Shariat Court could examine the record of the case and could pass such order as deemed fit‑‑‑Such power of the Federal Shariat Court was analogous to the power of criminal revision provided under Criminal Procedure Code, 1898.

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

‑‑‑‑Arts. 3/4‑‑‑Control of Narcotic Substances Ordinance (XIII of 1996), Ss.63 & 65‑‑‑Constitution of Pakistan (1973), Art.203‑DD‑‑‑Appreciation of evidence‑‑‑Return of case to Special Court‑‑‑Allegation against the accused was that 22 Kilograms opium was recovered from him‑‑‑Trial Court framed charge against the accused and examined witnesses, but before conclusion of the case, returned the case to the concerned police official with direction to submit the challan within three days to the Special Court constituted under Control of Narcotic Substances Ordinance, 1996‑‑Validity‑‑ Occurrence had taken place at the time when Control of Narcotic Substances Ordinance, 1997 was in field‑‑­Finding of Trial Court with regard to return of the case was based on the fact that quantity of opium alleged to have been recovered from the accused was 22 kilograms and law governing Control of Narcotic Substances was a special law and S.63 of Control of Narcotic Substances Ordinance, 1996 had provided that irrespective of existence of other laws, offences falling under said Ordinance were to be tried under provision of said Ordinance‑‑‑Trial Court in returning the case to Special Court had not committed any illegality‑‑‑In absence of any illegality in the order of Trial Court, same could not be interfered with in revision by the Federal Shariat Court.

Rasool Bakhsh and others v. The State 1998 PCr.LJ 438 ref.

Shaikh Ghulam Sabir Niazi for Petitioners.

Fazal‑ur‑Rehman Awan for the State.

Date of hearing: 15th March, 2001.

2003 P Cr. L J 839

[Federal Shariat Court]

Before Fazal Ilahi Khan, CJ

SHAH NAWAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 148-I of 2002, decided on 9th September, 2002.

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

----S. 10(2)---Appreciation of evidence---Version given by complainant in Court with regard to occurrence was quite different from ocular evidence furnished by him before Investigating Officer and said version had materially contradicted contents of F.I.R.---Improbable that accused could have dared to subject, alleged victim girl, to Zina-bil-Jabr at a place where complainant who was her maternal uncle was busy in cutting grass in same field---Credibility of statement of complainant was further shattered by the fact that he had stated in the F.I.R. that prosecution witnesses were also cutting grass in the field at the relevant time while he had changed his version in his statement in Court by stating that said prosecution witnesses were attracted to the spot from their houses on hearing hue and cry of the victim---Statement of Investigating Officer with regard to arrest of accused was also contradictory---Statement of victim was not supported by medical report and report of Chemical Examiner was also in the negative---Medical report coupled with report of Chemical Examiner had fully supported the contention of accused that alleged victim had not been subjected to Zina-bil-labr on the day of occurrence---Solitary statement of victim which was not supported by medical evidence and report of Chemical Examiner, which was not confidence-inspiring, could not be relied upon for conviction of accused in a heinous offence---Prosecution having failed to prove its case against the accused beyond any reasonable doubt, judgment and order of Trial Court were set aside and the accused was acquitted of the charge.

Muhammad Aslam Khaki for Appellant

M. Sharif Janjua for the State.

Date of hearing: 9th September, 2002.

2003 P Cr. L J 918

[Federal Shariat Court]

Before Fazal Ilahi Khan, C.J, and Ch. Eajz Yousaf, J

Mst. MUNIRA KHATOON---Appellant

Versus

ASHFAQUE ZAI and others---Respondents

Criminal Appeal No.33/K of 1999, decided on 24th April, 2002.

Criminal Procedure Code (V of 1898)---

----Ss. 145, 200, 202 & 249-A---Penal Code (XLV of 1860), Ss.448/456/34---Offences Against Property (Enforcement of Hudood), Ordinance (VI of 1979), S.14---Constitution of Pakistan (1973), Art.203-DD--­Appeal against acquittal---Private complaint against the accused was dismissed and accused were acquitted of the charge under S.249-A, Cr.P.C. and complainant had filed appeal against said acquittal--­Proceedings under S.145, Cr.P.C. with regard to property in dispute were pending in Criminal Court and petition of accused for quashing of said proceedings was dismissed by High Court holding that parties should be given full opportunity to lead their evidence whereafter the Trial Court had to give its decision on merits---Accused had claimed that dispute between parties with regard to property was of civil nature and that they had obtained a decree from the Civil Court in their favour, but they could not place on record such decree---Incumbent on the Trial Court to have recorded full evidence of both the parties in the proceedings under S.145, Cr.P.C. to determine as to which of the parties was then in possession of specific property within two months next before the complaint and after such determination to pass an order provided under S.145, Cr.P.C. one way or the other---Fate of complaint/criminal case under Ss.448/454/456/34, P.P.C. and under S.14 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 would depend on such determination---Federal Shariat Court accepting appeal against acquittal set aside judgment and order of Trial Court and remanded the case to Trial Court for affording full opportunity to complainant to lead her evidence and to give decision on merits within specified period.

Javed Haider Kazmi for Appellant.

Ghulam Nabi Sheikh for Respondents.

Fazal-ur-Rehman Awan for the State.

Date of hearing: 24th April, 2001.

2003 P Cr. L J 1041

[Federal Shariat Court]

Before Fazal Ilahi Khan, CJ

MUHAMMAD IRSHAD and others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Revision No. 19-T of 2002, decided on 18th September, 2002.

Criminal Procedure Code (V of 1898)---

----Ss. 200, 202, 203 & 204---Penal Code (XLV of 1860). Ss. 302/325--­Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11---Constitution of Pakistan (1973), Art.203-DD---Complaint case--­Procedure---Appreciation of evidence---Complainant had alleged that accused persons had administered poison to the deceased and that Local Police without any cogent reasons had not arrayed those persons as accused in the challan and they were not even shown in Column No.2 of the challan---Complainant had prayed that said persons be summoned, tried and case be decided against them on merits as sufficient evidence was available against, them---Trial Court on receipt of complaint treated the same simply as an application for summoning of those persons instead of treating same as complaint---Trial Court did not apply its mind to the contents of application filed by the complainant which in fact was a complaint and should have been treated as such---Procedure adopted by the Trial Court was unwarranted under the law as on receipt of said application it should have been treated as complaint and proceedings should have been taken by Trial Court under S.200 to S.204, Cr.P.C.--­Trial Court having not adopted said procedure, its order was set aside by Federal Shariat Court in revision and case was sent back to Trial Court for proceeding in accordance with law.

Nur Elahi v. State and others PLD 1966 SC 708 and Kalu and others v. The State and others PLJ 1999 Cr.C. (Lahore) 422 ref.

Malik Muhammad Aslam for Petitioners.

Respondent No.2 in person.

Muhammad Sharif Janjua for the State.

Date of hearing: 18th September, 2002.

2003 P Cr. L J 1076

[Federal Shariat Court]

Before Ali Muhammad Baloch, J

Mst. MANZOORAN BIBI and another---Appellants

Versus

THE STATE---Respondent

Jail Criminal Appeals Nos. 13-K and 18-K of 2002 decided on 17th May, 2002.

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

----Ss. 10(2) & 16---Appreciation of. evidence---Complainant who claimed to be husband of the female accused, after lodging the F.I.R. was living at Karachi while accused had gone to Quetta where she ultimately got judgment from the Court for dissolution of her marriage and it was thereafter that Nikahnama between her and the co-accused took place--­Complainant in his evidence at no place had pointed out that earlier to Nikah of accused with co-accused they were living as husband and wife---Merely on presumption it could not be said that accused had committed Zina-bil-Raza before performance of their Nikah--­Accused had proved by producing Nikahnama that they had married each other and after Nikah at Quetta they were living as husband and wife---Evidence on record could not prove offence against the accused under Ss.10(2) & 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Judgment of Trial Court that accused had committed Zina-bil-Raza based on presumption and not based on evidence, could not be sustained---Conviction and sentence recorded by Trial Court against the accused were set aside and they were acquitted of the charge.

Mrs. Saleha Naeem Ghazala for Appellant (in Jail Criminal Appeal No. 13/K of 2001).

Arshad Lodhi, Asstt. A.-G., Sindh for the State (in Jail Criminal Appeals Nos. 13/K and 18/K of 2001).

Masood Shaher Yar for Appellant (in Jail Criminal Appeal No. 18/K of 2001).

Date of hearing: 17th May, 2002.

2003 P Cr. L J 1212

[Federal Shariat Court]

Present: Ch. Ejaz Yousaf Actg. C.J., Dr. Fida Muhammad Khan and Khan Riaz-ud-Din Ahmed, JJ

SHUJA-UR-REHMAN and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.44/I, 45/I 53/I, 132/I and Criminal Revision No.7/I of 2001, decided on 30th January, 2003.

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

----Art.37---Penal Code (XLV of 1860), S.302/34---Confession made by an accused would be irrelevant, only if, making of the same appeared to the Court to have been caused by any inducement, threat or promise upon the evidence before it.

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

----Art. 91---Penal Code (XLV of 1860), S.302/34---Confession---Presumption of truth was attached to the documents produced as record of evidence and statement of an accused made under S.164, Cr.P.C. being well within the ambit of Art.91, Qanun-e-Shahdat, 1984, was duly taken in accordance with law---Provision of S.364, Cr.P.C. cast a duty upon the Magistrate to certify that the record contained a full and true account of the statement made by the accused, therefore, unless proved to the contrary the confession must be presumed to have been made voluntarily.

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

---Arts. 37, 91, 117 & 119---Penal Code (XLV of 1860), S.302/34--­Confession ---Retraction---Provision of Art.37 of the Qanun-e-Shahadat, 1984 which determines the admissibility of confession is an exception to the rule embodied in Art.91 of the Qanun-e-Shahadat, 1984, therefore, an accused person who, at the trial, retracts his confession, alleging that it was the outcome of ill-treatment must prove his allegation because Arts.117 & 119 of the Qanun-e-Shahadat, 1984 require that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence.

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

----Art.37---Penal Code (XLV of 1860), S.302/34---Confession--­Determination of the question of admissibility or otherwise of a confession was left solely with the Court and since the test of admissibility of a confession was its voluntariness, the question as to whether a confession was voluntary, being purely a question of fact, had to be determined keeping in view the facts and circumstances of each case and no hard and fast rule of general application could be laid down.

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

----Art. 37---Penal Code (XLV of 1860), S.302/34---Confession--­Inducement or threat---Allegation of beating by the police made by the accused making the confession---Statements of the accused left the inference that the alleged beating, if any, was not for the purpose of extracting confession rather it was subsequent to the admission of guilt by the accused-persons ---Fact that not a single question was put to the Magistrate as well as the Investigating Officer to the effect that the confessions were the result of torture also subscribed to the conclusion that, there was no torture for extracting the confession---.Judicial Magistrate who had recorded the confessional statements himself was of the opinion that voluntariness of the confessional statements, despite beating allegedly given to the accused persons, was not affected and he having been satisfied that the accused persons were making the confessions voluntarily, had recorded the same---Confessional statements of the accused persons, in circumstances, were rightly taken into consideration by the Trial Court and no different view could be taken, particularly, when the accused persons had, at the trial, failed to substantiate the defence plea.

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

----S. 103---Qanun-e-Shahadat (10 of 1984), Art.40---Penal Code (XLV of 1860), S.302/34---Recovery--Associating respectables of the locality---Necessity---Need to associate two or more respectable witnesses of the locality, to attend the search, arose only if the search was to be made by the police of its own under Chap, XVII, Cr.P.C.---If, however, anything in consequence of the information conveyed by the accused was recovered then such requirement could safely be dispensed with because recovery of anything or fact discovered in consequence of the information received from an accused person would otherwise be relevant under Art.40, Qanun-e-Shahadat, 1984.

The State v. Shankar 1997 SCMR 1000; Muhammad Akbar v. The State 1995 SCMR 693; Ballia and another v. The State 1985 SCMR 854; Kashif-ur-Rehman and others v. The State 1996 PCr.LJ 1689; Muhammad Maskin v. Satbar Khan alias Lajbar Khan and another 2001 PCr.LJ 1932 and Yousuf v. The State and another 2000 PCr.LJ 1386 rel.

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

----S. 103---Recovery---Associating respectables as witnesses---Stress under S.103, Cr.P.C. was on the respectability of witnesses and not on the condition that they must be inhabitants of the locality.

Ballia's case 1985 SCMR 854 fol.

(h) Bankers' Books Evidence Act (XVIII of 1891)---

----S. 4---Qanun-e-Shahadat (10 of 1984), Art.76---Penal Code (XLV of 1860); S.302/34---Criminal trial---Certified copy of the document could be received in legal proceedings as evidence under S.4 of the Bankers' Books Evidence Act, 1891 and under Art.76, Qanun-e-Shahadat, 1984 copies of documents made from the original by means of microfilming or other modern devices may be given of the existence, condition to contents of the document---Non-production of the original cheque to substantiate a plea, therefore, was not fatal towards the prosecution case, particularly when the evidence in question was not the only piece of evidence against the accused but was simply a link in the chain of the circumstantial evidence.

(i) Juvenile Justice System Ordinance (XVII of 2000)---

----Preamble---Occurrence having taken place prior to the promulgation of the Ordinance, accused would be tried under the relevant law.

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

---S.302/34--Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Qanun-e-Shahadat (10 of 1984), Arts.37, 91, 117 & 119---Criminal Procedure Code (V of 1898), 5.103---Appreciation of evidence---Deceased was found murdered and the occurrence was unseen---Cheque opened a clue when the complainant, having found that some cheques were torn from the cheque book recovered from the house of the deceased visited the Bank and came to know that a cheque in the sum of Rs.50,000 was got encashed by the accused---Enquiry revealed that neither any money was due to the accused from the deceased, on any count nor he was entitled to receive the same, complainant, therefore, became suspicious and inquired about the accused and as a result of the inquiry it transpired that the said accused had a dubious character and had also links with notorious persons, he therefore reported the matter to the police---Accused after his arrest was interrogated and resultantly it came to light that the other accused persons were also involved in the crime---Original signatures were found on the cheque and it was established on record that the Cashier himself, after having satisfied that the holder of the cheque was a genuine person, had disbursed the amount to the accused after keeping on record photostat copy of the National Identity Card and a part of the amount received by him was also recovered from the possession of the other accused persons and two of them had also confessed their guilt, therefore, the Trial Court concluded that the prosecution version was true---Trial Court further concluded that since the confessional statements, at the trial, were proved to have been made voluntarily and circumstantial evidence as well as the recovery of the crime weapon and other articles also rendered strong corroboration thereto, therefore, the accused persons in fact were responsible for the crime---Complainant (brother of the deceased) or any other relative of the deceased had neither any enmity against the accused nor had they any motive to falsely implicate them---Fact that none was mentioned in the F.I.R. too, gave rise to the presumption that the complainant had neither any cause to falsely involve any person in the crime nor he wanted to settle the score with the accused persons on any count therefore, the prosecution evidence was rightly believed---Findings recorded by the Trial Court had the support of evidence and were well-reasoned, therefore, impugned judgment called for no interference; since on the basis of evidence on record it could not have been definitely concluded that any particular accused was responsible for the crime but the murder was the outcome of various acts committed by all the accused persons, therefore, sentence of the accused could not be enhanced.

Abdullah Tanoli for Appellant (in Criminal Appeal No.44/I of 2001).

Ghulam Mujtaba Khan Jadoon for Appellant (in Criminal Appeal No.45/I of 2001).

M. Yousaf Zia for Appellant (in Criminal Appeal No.53/I of 2001).

Shabbir Alam for Appellant (in Criminal Appeal No. 132/I of 2001).

Barrister Zahoorul Haq for the Complainant (in Criminal Revision No.7/I of 2001).

Date of hearing: 30th January, 2003.

2003 P Cr. L J 1321

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, Actg. C.J. and Khan Riaz-ud-Din Ahmad, J

Mst. NASREEN AKHTAR---Appellant

Versus

HUSNAIN MEHDI and 6 others---Respondents

Criminal Appeal No.206/I, Criminal Revisions. Nos.15/I and 16/I of 1996, decided on 17th February, 2003.

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

----Ss. 265-D & 202---Complaint---Framing of charge---Stage---If after perusing the complaint and all other documents, which in case of a complaint would obviously include the gist of evidence likely to be adduced at the trial, the Court is of the opinion that there are grounds for proceeding with trial of the accused, Court shall frame charge but if the situation is other way round then the Court may, having regard to the express provision of S.202, Cr.P.C., either inquire into the case itself or direct an enquiry or investigation---No such direction in view of S.201, proviso, Cr.P.C., however, can be made unless the complainant is examined on oath under S.200, Cr.P.C.

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

----Ss. 202, 265-C(2)(a)(1) & 265-D---Complaint---Court, for the purpose of ascertaining the truth or falsehood of complaint may, under S.202, Cr.P.C. by postponing the issue of process for compelling the attendance of the person complained against, inquire into the case itself or direct an inquiry or investigation---Court may call and examine any person if he i.e. the witness had any knowledge of the crime, yet, having regard to the express provisions of Ss.265-C(2)(a)(1) and 265-D, Cr.P.C. it cannot be done unless the witnesses or at least some of them, likely to be produced at the trial by the complainant, are examined---If the evidence produced by the complainant at line stage of preliminary inquiry is found deficient or the Court is unable to make its mind regarding truthfulness or otherwise of the accusation only then further evidence may be called.

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

----S. 200---Complaint---While enquiring into a complaint, full and ample opportunity, even at a preliminary enquiry stage, has to be given to the complainant to prove the allegations and such opportunity is all the more necessary where persons complained against are public servants especially the Police Officer.

Abdul Jabbar alias Achhar v. The State and 4 others 1974 PCr.LJ Note 110 at p.69; Fateh Sher v. Khan Yaseen Khan, A.S.-I. and others PLD 1959 Lah. 660; Mahim Chandra Roy v. A.H. Watson (1929) 30 Cr.LJ 407 and Purosattam v. Ram Das and others (1925) 26 Cr.LJ 561 fol.

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

----Ss. 200, 202, 265-C, 265-D & 436---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10(3) & 11---Penal Code (XLV of 1860), Ss.166/167, 165/163, 342/348 & 109---Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979), S.7---Complaint--­Appreciation of evidence---Trial Court while deciding fate of the complaint had primarily relied upon the statements of the Court­ witnesses and had failed to assess or apprise the statements of the witnesses produced by the complainant and had discarded the same simply by saying that the Court could not give preference to the statements of witnesses over the statements of the Court-witnesses--­Validity ---Impugned order/judgment of the Court could not sustain which was set aside, however, having regard to the provision of S.436, Cr.P.C., Federal Shariat Court, remanded the cases to the Trial Court with the direction that at first, statements of the rest of the witnesses, whose names had been mentioned in the schedule of witnesses annexed with the complaint, be recorded and thereafter the complaint be processed with, in accordance with law---Cases of Qazf shall, however, remain stayed till fate of the complaint was decided.

Muhammad Aslam Uns for Appellant.

Sardar Muhammad Ghazi for Respondents.

Nadeem Mukhtar Chaudhry for the State.

Date of hearing: 29th October, 2002.

2003 P Cr. L J 1816

[Federal Shariat Court]

Before S.A. Manan and Saeed-ur-Rehman Farrukh, JJ

MUHAMMAD MUNAWAR---Petitioner

Versus

KASUAR PARVEEN and another---Respondents

Criminal Revision No.82/L of 1995, decided on 4th July, 2003.

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

----S. 17---Criminal Procedure Code (V of 1898), S.417(2)---Where a private complaint under the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, is rejected, then the only remedy left for the complainant is to file a petition for special leave to appeal before the Federal Shariat Court to assail the rejection order---Direct appeal against the acquittal judgment in a complaint case is not competent.

Muhammad Nawaz v. Fazil and 4 others 1994 PCr.LJ 2288; Abdul Latif v. Mst. Bilquees Begum and another 1983 PCr.LJ 1451; Subedar (Retd.) Noor Gul and others v. The State and another 1987 PCr.LJ 1671; Muhammad Bakhsh v. Iqbal Ahmad alias Ahmad and another 1980 PCr.LJ 191; Mst. Nasreen Akhtar v. Husnain Mehdi and others Criminal Revision No.206/I of 1996; Kh. Babar Saleem and others v. Hasnain Mehdi and another Criminal Appeal No.15/I of 1996 and Bashir Ahmad v. The State 1990 PCr.LJ 780 ref.

(b) Administration of justice---

---- Practice and procedure---If law mandates doing of an act in a particular manner, it has to be done in that manner and no deviation or departure, there from, is permissible.

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

----Ss. 7 & 17---Criminal Procedure Code (V of 1898), S.417(2)--­Constitution of Pakistan (1973), Art.203-DD---Revision petition--­Revision petition filed by the petitioner under Art.203-DD of the Constitution was misconceived having been brought against the mandatory provisions of S.417(2), Cr.P.C. and was liable to be dismissed summarily---Petitioner could not be allowed to put premium on his own lapse and claim exemption from the legal requirement of filing petition for leave to appeal---Objection about maintainability of a "lis" could be raised even at the stage of its final hearing---Even otherwise, respondent, while appearing as her own witness in the maintenance suit, had not levelled any allegation of adultery against the petitioner--­Pleadings in the civil suit did not form substantive piece of evidence and if the petitioner wished to gain benefit from it, he ought to have confronted the respondent with the same during the course of her cross­ examination so as to enable her to offer explanation, if any, with regard thereto, but he failed to do so and now he was legally debarred from relying on such averment and claim conviction of the respondent thereon---Complaint filed by the petitioner was motivated only to malign and intimidate the respondent so as to dissuade her from seeking her remedies before Civil Courts---Revision petition was consequently dismissed both on the ground of non-maintainability as well as on merits.

Muhammad Nawaz v. Fazil and 4 others 1994 PCr.LJ 2288; Abdul Latif v. Mst. Bilquees Begum and another 1983 PCr.LJ 1451; Subedar (Retd.) Noor Gul and others v. The State and another 1987 PCr.LJ 1671; Muhammad Bakhsh v. Iqbal Ahmad alias Ahmad and another 1980 PCr.LJ 191; Mst. Nasreen Akhtar v. Husnain Mehdi and others Criminal Appeal No.206/I of 1996; Kh. Babar Saleem and others v. Hasnain Mehdi and another Criminal Revision No. 15/1 of 1996 and Bashir Ahmad v. The State 1990 PCr.LJ 780 ref.

Qazi Muhammad Salim for Petitioner

Rana Abdul Hamid Khan for Respondent No. 1.

Raja Abdul Rehman, Asstt. A.-G. with Miss Najma Rashid for ,the State.

Date of hearing: 30th June, 2003.

2003 P Cr. L J 1928

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, CJ

WAHID IQBAL‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.284‑I of 2002, decided on 22nd May, 2003.

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

‑‑‑‑Ss. 10(3) & 11‑‑‑Allegation of kidnapping, abducting or inducing a girl to compel for marriage and Zina‑‑‑Appreciation of evidence‑‑‑Name of the accused was not mentioned in the F.I.R. ‑‑‑Prosecution case was that, prior to lodging of the F.I.R., the complainant had met the prosecution witness and other persons who had allegedly informed him that they had seen the abducted girl going in a taxi alongwith the accused persons‑‑‑Omission to name the accused in the F.I.R., however, suggested that either the accused was not involved in the crime or was not present in the taxi otherwise he would have been straightaway nominated‑‑‑Said omission, therefore, cast serious doubt on the veracity of the statements of prosecution witnesses‑‑‑Accused being admittedly not previously known to the abductee nor had she seen him before the occurrence, and abductee in her statement having confirmed that accused had never come across her nor had she seen his photograph and prosecution witnesses as well as the abductee had only fleeing glimpses of the accused, non‑holding of identification test parade was fatal to the prosecution case.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 22 & 2(c)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10(3) & 11‑‑‑Allegation of kidnapping, abducting or inducing a girl to compel for marriage and Zina‑‑­Appreciation of evidence‑‑‑Identification test parade‑‑‑When essential to hold‑‑‑Principles‑‑‑Statement made in the Court by a witness was the substantive evidence within the purview of Art.2(c) of the Qanun‑e-­Shahadat, 1984 and identification made by a witness at the test parade was only corroboratory in nature yet, where the accused was not previously known to the witness and he i.e. the witness had only a fleeing glimpse of the accused, holding of the test identification parade was essential and vital because normally statements of witnesses were recorded in Courts much after the occurrence and therefore, possibility that a witness might not have mistakenly nominated or pointed out somebody could not be ruled out‑‑‑Evidence of identification of an accused person at the trial for the first time, therefore, was considered to be inherently of a very weak character and the prosecution in order to carry conviction must establish that the accused was correctly and properly identified by the witness at the time of occurrence and the goal could not be achieved unless evidence furnished by the prosecution at the trial was capable to provide answers to certain question e.g. as to how long did the witness have the accused under observation, at what distance, in what light and was the observation impeded in any way and that had the witness ever seen the accused before, how often and if only occasionally, had he any special reason for remembering the accused etc.‑‑‑Needful could not be done unless the suspect was put to identification test at the first opportunity because human beings have their own limitations and memory fade by the lapse of time.

Danial Boyd (Muslim name Saifullah) and another's case 1992 SCMR 196 and State through Advocate‑General, Sindh v. Farman Hussain and others PLD 1985 SC 1 ref.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 22‑‑‑Criminal Procedure Code (V of 1898), S.161‑‑‑Identification parade‑‑‑When accused was charged in the F.I.R. and in statements under S.161, Cr.P.C. by the description of their structure, then identification in a formal parade was a "must".

Danial Boyd (Muslim name Saifullah) and another's case 1992 SCMR 196 fol.

(d) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 22‑‑‑Identification parade‑If a witness gets momentary glimpse of an accused and claims that he would be able to identify him then after his arrest identification test becomes very essential which is to be conducted strictly according to guidelines and legal requirements enunciated by law.

State through Advocate‑General, Sindh v. Farman Hussain and others PLD 1985 SC 1 fol.

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

‑‑‑‑Art. 22‑‑‑Police Rules, 1934, R.26.32‑‑Identification parade‑‑­Nature‑‑‑Procedure to be followed in holding the identification test parade.

Identification parade is not only, the preferred and approved method of identification of suspects by Courts but is also requirement of the, Police Rules as well. Rule 26.32 of the Police Rules, 1934 is explicit in this regard. Under sub‑rule (1) thereof it has been provided that the rules shall be strictly observed in confronting arrested suspects with such witnesses, who claim to be able to identify them and under rule 1(c) it has been made obligatory for the Police Officers to arrange for identification test of the suspects soon after their arrest. Sub‑rule (2) provides that though, it is not the duty of the officer conducting them or of the independent witnesses to record statements or cross‑examine either suspects or identifying witnesses yet, they should be requested to question the latter as to the circumstances in which they saw the suspect whom they claim to identify.

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

‑‑‑‑Ss. 10(3) & 11‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts.22 & 2(c)‑‑­Allegation of kidnapping, abducting or inducing a girl to compel for marriage and Zina‑‑‑Appreciation of evidence‑‑‑Accused allegedly was accompanying the absconding accused while she was carried in the taxi yet, he had alighted there from in the way‑‑‑No overt act in addition to the said allegation had been attributed to him‑‑‑Accused was not previously known to the prosecution witnesses nor had they seen him prior to the incident, therefore, in the absence of the identification test parade or any other incriminating piece of evidence, it was highly unsafe to record conviction against the accused on the basis of solitary statement of the abductee with whom too, he had allegedly remained for a while, in the condition that she herself was covered with a blanket‑‑‑In the absence of corroboration from any material source i.e. recovery of crime weapon or the vehicle or the abductee the accused could not have been convicted for the offence‑‑‑Prosecution having failed to make out its case against the accused beyond any shadow of doubt, Federal Shariat Court, accepted the appeal of the accused and acquitted him of the charge.

Muhammad Munir Peracha for Appellant.

Muhammad Sharif Janjua for the State.

Date of hearing: 22nd May, 2003.

2003 P Cr. L J 17

[Karachi]

Before S. Ali Aslam Jafri, J

MOULA BUX‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application‑No.153 of 2002, decided on 20th July 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11/16‑‑‑Bail‑‑‑Nikahnama showing the marriage of the accuse with the alleged abductee appeared to be not genuine ‑‑‑Abductee in her statement under S.164, Cr.P.C. had denied her Nikah with the accused and fully implicated him for her abduction in the Rickshaw‑‑‑Accused as named in the F.I.R.‑‑‑No reasonable grounds were available on cord to believe that the accused had not committed the offence with which he was charged‑‑‑Bail was declined to accused in circumstances.

Shaukat Ali Shaikh v. The State 1989 PCr.LJ 1941; Muhammad Tariq v. The State 1987 PCr.LJ 1846; Muhammad Arshad v. The State 1989 PCr.LJ 1398 and Ateeq Ahmed and others v. The State 1994 P Cr. L J 2217 ref.

A.R. Farooque Pirzada for Applicant.

G.D. Shahani, Addl. A.‑G.

2003 P Cr. L J 33

[Karachi]

Before Muhammad Roshan Essani, J

HAZAR KHAN alias HAZARD‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.327 of 2002, decided on 23rd July, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.11/16‑‑‑Penal Code (XLV of 1860), S.342/147‑‑‑Bail‑‑‑Two months' delay in lodging the F. I. R. was not plausibly explained‑‑‑Despite the alleged occurrence having taken place in broad daylight in a thickly. populated area, no independent person from the locality was cited or examined as a witness during the investigation to substantiate the allegation of forcible abduction‑‑‑Not a single male person from the family of the complainant went in pursuit of the alleged abductee or reported the matter to the police ‑‑‑Abductee was not recovered from the accused, but she of her own accord had appeared at the police station on one fine morning‑‑‑No mark of violence was found on the person of the abductee‑‑‑Case against accused had necessitated further inquiry as contemplated under S.497(2), Cr.P.C. in circumstances and he was admitted to bail accordingly.

Abdul Hakeem Bijarani for Applicant.

Ghulam Sarwar Korai for the State.

2003 P Cr. L J 73

[Karachi]

Before Muhammad Moosa K. Leghari, J

BEHRAM‑‑‑Applicant/Accused

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application NQ.110 of 2002, decided on 5th July, 2002.

(a) Criminal trial‑‑‑--

‑‑‑‑ Fair and expeditious trial is the fundamental right of an accused person which cannot be denied to him.

Manzoor Ahmed Wattoo v. The State 2000 SCMR 107 ref.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/459/460/337‑H(ii)/34‑‑­Bail‑‑‑Despite direction of High Court issued about two years back trial had not yet commenced‑‑‑Since the charge could not be framed within the last 18 months, period required for conclusion of the trial was not difficult to be predicted‑‑‑Fair and expeditious trial was the fundamental right of the accused which could not be denied‑‑‑Hardship suffered by the accused an account of delay was quite obvious and the same could not be overlooked‑‑‑Bail was allowed to accused in circumstances.

Manzoor Ahmed Wattoo v. The State 2000 SCMR 107 ref.

Ubadullah M. Abro for Applicant.

Muhammad Ismail Bhutto for the State.

2003 P Cr. L J 94

[Karachi]

Before S. Ali Aslam Jafri, J

Mst. NADRA SHIREEN alias ROBINA‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.832 of 2002, decided on 3rd July, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10(2)/16‑‑‑Bail‑‑‑F.I.R. suffered from an unexplained inordinate delay of 25 days‑‑‑Accused having been found innocent in first police investigation was let off under S.169, Cr.P.C. as the case was found to be false‑‑‑No ocular evidence in respect of the commission of Zina was available‑‑‑Medical certificate in support of the prosecution case appeared to be doubtful‑‑‑Accused and her husband (complainant) had strained relations which had resulted in dissolution of marriage between them‑‑‑Case of accused, thus, called for further inquiry into her guilt‑‑‑Bail was allowed to accused in circumstances.

Khawaja Naveed Ahmed for Applicant.

Fazlur Rehman Awan for the State.

2003 P Cr. L J 103

[Karachi]

Before Muhammad Roshan Essani, J

MUHAMMAD HASHIM and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.310 of 2002, decided on 24th July, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/324/148/149‑‑‑Bail‑­Allegation against the accused that they were inciting the main culprits to commit the crime was not supported by the record‑‑‑Accused admittedly were not present on the spot at the time of incident‑‑‑Enmity existed between the parties‑‑‑Case of accused had necessitated further inquiry as contemplated under S.497(2), Cr.P.C.‑‑‑Accused were admitted to bail in circumstances.

Abdul Sattar Soomro for Applicants.

Liaquat Ali Shar for the Complainant.

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

Date of hearing: 24th July, 2002.

2003 P Cr. L J 117

[Karachi]

Before Muhammad Roshan Essani, Actg. CJ, MANZOOR ALI‑and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail No.972 of 2002, decided on 31st July. 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.392/34‑‑‑Bail‑‑‑F. I. R. had been lodged promptly with the description of prominent features of the culprits‑‑‑Complainant and the eye‑witness had correctly picked up the accused in the identification test held before the Judicial Magistrate‑‑­Record did not show any enmity of tae prosecution witnesses with the accused‑‑‑Accused had robbed the complainant at the point of fire‑arm‑‑­Bail was declined to accused in circumstances.

Azizur Rehman Akhund for Applicants.

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

Date of hearing: 31st July, 2002.

2003 P Cr. L J 121

[Karachi]

Before Muhammad Roshan Essani and Muhammad Mujeebullah Siddiqui, JJ

IMAM BUX and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.33 of 1996, decided on 29th July, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑Interested witness‑‑­Corroboration‑‑‑Conviction cannot be based in a capital offence upon the, sole evidence of interested persons without strong corroborative evidence.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Criminal Procedure Code (V of 1898), S.164‑‑­Appreciation of evidence‑‑‑Retracted judicial confessions of accused being defective in many respects were ruled out of consideration‑‑‑Motive being a double‑edged weapon cuts both ways and the same, however, strong it might be, could not provide corroboration to ocular evidence which was partisan and highly interested and unable to form basis of conviction‑‑‑Accused were acquitted on benefit of doubt in circumstances.

(c) Penal Code (XLV of 1860)‑‑‑-

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑Ocular testimony was corroborated by the recovery of gun from the accused which had matched with the crime‑empty found from the scene of offence according to the report of the Ballistic Expert‑‑‑Conviction of accused was consequently upheld‑‑‑Trial of the case and decision of appeal had, however, taken more than twenty years and in view of such a prolonged trial death sentence awarded to accused was not called for and the same was reduced to imprisonment for life.

A.Q. Halepota for Appellants.

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

Shaukat Hussain Zubedi for the Complainant.

Date of hearing: 3rd April, 2002.

2003 P Cr. L J 135

[Karachi]

Before Syed Zawwar Hussain Jafri, J

ALLAHDINO and 6 others‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 495 of 2002, decided on 20th August, 2002.

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

‑‑‑‑S. 498‑‑‑Penal Code (XI.V of 1860), Ss.324/337‑F(i)(ii)/148/149‑‑­Pre‑arrest bail‑‑‑Two F.I.Rs. had been registered but the accused and the complainant party in both of them had not accepted their presence and receipt of injuries‑‑‑Accused could not take any benefit from their own F.I.R. when they had not admitted that there was a counter‑case‑‑‑Evidence of they injured witnesses including the complainant was corroborated by medical evidence‑‑‑Reinvestigation report could not be considered as a solid proof of innocence of accused‑‑­ Accused were nominated in the F.I.R. with specific role of causing injuries‑‑‑Both the parties had not disclosed about inflicting injuries to the other side in both the F.I.Rs. and had suppressed the happening of incident in both cases‑‑‑No ulterior motive had been shown for false implication of accused‑‑‑Pre‑arrest bail was refused to accused in circumstances.

Muhammad Ashraf and another v. State 1982,PCr. LJ 1286: Aftab Khan v. Haamid Hussain and another 1995 PCr.LJ 552; Taja alias Tajo v. State 1975 PCr.LJ 1265; Dr. Muhammad Shoaib Suddle. D.I.­G.P., Karachi and others v. State 1997 SCMR 1234: Badshah Gul v. State and another 1999 PCr. LJ 691: Murad Khan v. Fazal‑e‑Subhan, and another PLD 1983 SC 82; Ali Muhammad v. Yamin and another 1981 SCMR 1139; Ch. Zahur Ilahi v. State 1981 SCMR 935 and Crown v. Khushi Muhammad PLD 1953 FC 170 ref.

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

‑‑‑Ss. 497/498‑‑‑Bail‑‑‑Police opinion‑‑‑Opinion of ‑police recorded during the course of investigation and reinvestigation can only he looked into at the time of trial. but not at the stage of bail application.

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

‑‑‑S.498‑‑‑Pre‑arrest bail‑‑‑Principle‑‑‑Pre‑arrest bail can only be granted if there are ulterior motives, humiliation, unjustified harassment and apprehension of irreparable loss to the reputation and liberty of a citizen motivated by malice on the part of prosecution.

Murad Khan v. Fazal‑e‑Subhan and another PLD 1983 SC 82; Ali Muhammad v. Yamin and another 1981 SCMR 1139; Ch. Zahur Ilahi v. State 1981 SCMR 935 and Crown v. Khushi Muhammad PLD 1953 FC 170 ref.

Azizul Haq Solangi for Applicants.

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

Asif Ali Abdul Razak Soomro for the Complainant.

Date of hearing: 20th August, 2002.

2003 P Cr. L J 142

[Karachi]

Before Sarmad Jalal Osmany, J

AFZAL CHOHAN‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Applications Nos.658, 1509 and Miscellaneous Application No. 1284 of 2002, decided on 9th July, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail‑‑‑Sole judicial confession of co‑accused could not form the basis for convicting the accused and at the bail stage to that extent it could net be used to refuse bail to him‑‑‑Accused was admitted to bail in circumstances.

Miss Shahina Khan alongwith Iqbal Solangi for Applicant.

Fazalur Rehman Awan for the State.

2003 P Cr. L J 145

[Karachi]

Before S. Ali Aslam Jafri, J

ABDUL KARIM and 3 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 51 of 2001, heard on 27th May, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34 & 324/34‑‑‑Appreciation of evidence‑‑‑Injured witness who was the best and natural witness of the occurrence had not supported the prosecution case‑‑‑Statement of the complainant had also become doubtful as according to the injured witness he was not present in the house at the time of incident and had gone to some other village‑‑‑Non‑examination of second Mashir by the prosecution was fatal to the prosecution case as corroborative evidence in the form of arrest and recovery of the accused did not stand proved‑‑‑Medical evidence had only established the unnatural death of the deceased and the injuries caused to the witness at the relevant time and date, but it could not point out the assailants‑‑‑Accused were acquitted in circumstances.

Ali Nawaz Ghanghro and Shahbaz Ali Brohi for Appellants.

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

Date of hearing: 27th May, 2002.

2003 P Cr. L J 154

[Karachi]

Before Muhammad Roshan Essani and Muhammad Mujeebullah Siddiqui, JJ

HAKIM ALI ZARDART ‑‑‑ Appellant

Versus

THE STATE‑‑‑Respondent

Miscellaneous Applications Nos. 1775 and 2108 of 2002 in Criminal Accountability Appeal No.60 of 2002 decided on 3rd September, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 426‑‑‑National Accountability Bureau Ordinance (XVIII of 1999), 5.10‑‑‑Suspension of sentence‑‑‑Accused according to his medical reports was at present almost a crippled person who was not able to perform his ordinary persuits of life on his own‑‑‑Accused required re‑do surgery of his left hip joint which was not possible in sub‑jail and his keeping in jail was detrimental to his health‑‑‑Sentences of imprisonment awarded to the accused by the Trial Court were suspended till final disposal of his appeal m circumstances and he was directed to be released on bail accordingly.

Malik Muhammad Yousafullah Khan v. The State PLD 1995 SC 58; Zakhim Khan Masood v. Special Judge, Central, Rawalpindi 1998 SCMR 1065; Mian Manzoor Ahmad Wattoo v. The State 2000 SCMR 107; Muhammad Saeed Medhi v. The State 2002 SCMR 282 and State v. Dr. Usman Farooqui PLD 1998 Kar. 148 ref.

Azizullah K. Shaikh for Applicant

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

Date of hearing: 28th August, 2002.

2003 P Cr. L J 161

[Karachi]

Before Sarmad Jalal Osmany and Mushir Alam, JJ

MUHAMMAD HANIF and another‑‑‑Appellants

Versus

THE STATE through Chairman, National Accountability Bureau, Karachi‑‑‑Respondent

Miscellaneous Application No.797 of 2002 in Criminal Accountability Appeal No.20 of 2000, Miscellaneous Application No.583 of 2002 in Criminal Acct. Appeal No.3 of 2001 and Miscellaneous Application No. 1168 of 2002 in Criminal Acct. Appeal No. 19 of 2000, decided on 6th August, 2002.

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

‑‑‑‑S. 426‑‑‑Suspension of sentence‑‑‑Principle‑‑‑Sentence is usually suspended where it is short and there is no immediate hopes for the main appeal to be decided‑‑‑Similarly in appropriate cases where the balance period remaining to be served out by the accused is a short one, its suspension can be considered on the ground that the main appeal would take some time in its decision.

Adnan A. Khawaja v. The State Criminal Petition No.281 of 2001 and Zulfiqar Ali v. The State 1994 SCMR 548 ref.

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

‑‑‑‑S. 426‑‑‑National Accountability Bureau Ordinance (XVIII of 1999), S.10‑‑‑Suspension of sentence‑‑‑Sentences awarded to accused by Trial Court were lengthy ones even taking into consideration the periods of imprisonment already served out by them plus the remission earned‑‑‑No case was made out for suspension of sentences of accused solely on the ground that the major portion thereof had been undergone by them‑‑­Petitions were dismissed accordingly.

Adnan A. Khawaja v. The State Criminal Petition No.281 o, 2001; Zulfiqar Ali v. The State 1994 SCMR 548; M. Riaz Fatima v. The State Criminal Accountability Appeal No. 1784 of 2001; M. Riaz Fatiana v. The State Criminal Accountability Appeal No.1136 of 2001; Ali v. The State Criminal Accountability Appeal No.752 of 2001; Yousuf v. The State 1991 SCMR 958 and Muhammad Akram v. The State 1994 SCMR 277 ref.

M.A. Kazi for Appellants (in Criminal Accountability Appeals Nos. 20 and 3 of 2000).

M.L. Shahani for Appellant (in Criminal Accountability Appeal No. 19 of 2000).

S.M. Zaki, Dy. A.‑G. for NAB (in Criminal Accountability Appeals Nos.3 of 2001 and 19 of 2000).

A. Ghafoor Khan for NAB (in Criminal Accountability Appeal No‑20 of 2000).

Dates of hearing: 18th and 30th July, 2002.

2003 P Cr. L J 170

[Karachi]

Before Muhammad Roshan Essani and Muhammad Mujeebullah Siddiqui, JJ

MUHAMMAD ZAFAR IQBAL‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.660 of 2002, decided on 17th August, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑National Accountability Bureau Ordinance (XVIII of 1999). Ss.9/10‑‑‑Bail‑‑‑Material collected by the prosecution showed that, prima facie, the accused had committed such acts which amounted to abetment of the offence of corruption and corrupt practices by the principal accused‑‑‑Reasonable grounds. thus, existed to connect the accused with the commission of the offence charged with‑‑‑Bail was declined to accused in circumstances.

Imitaz Ahmed and others v. The State PLD 1997 SC 545 and Zeeshan Kazmi v. The State PLD 1997 SC 267 ref.

Syed Mahmood Alam Rizvi for Applicant.

Naveed Rasool Mirza and Muhammad Ghani for the State.

Date of. hearing: 9th August. 2002.

2003 P Cr. L J 179

[Karachi]

Before Wahid Bux Brohi, J

NAVEED AHMED ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.1042 of 2002, decided on 27th August, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.392‑‑‑Bail‑‑‑Accused was involved in a case of daylight robbery accompanied by use of technical methods‑‑‑Sufficient evidence was available on record to show that on hot pursuit the accused was captured immediately with the help of police and he crime weapon was secured from him‑‑‑Incidents of robberies had reached alarming increase in the city and innocent citizens were not safe‑‑‑Accused was refused bail in circumstances.

Manzoor A. Bhutta for Applicant.

Fazalur Rahman Awan, State Counsel.

Date of hearing: 27th August, 2002.

2003 P Cr. L J 192

[Karachi]

Before Sarmad Jalal Osmany and Mushir Alam, JJ

QURBAN ALI JATOI‑‑‑Applicant

Versus

THE STATE through Chairman, National Accountability Bureau, Karachi and another‑‑‑Respondents

Criminal Miscellaneous Application No. 244 of 2002, decided on 30th July, 2002.

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

‑‑‑‑S. 561‑A‑‑‑Inherent power of High Court, exercise of‑‑‑Before exercising the powers under S.561‑A, Cr.P.C. High Court should come to a conclusion that allowing the impugned judicial proceedings to continue would defeat the ends of justice or would either operate or perpetuate an injustice viz. it would be an abuse of the process of law and a perversion of the administration of justice so as to cause harassment to an innocent party‑‑‑To be established that as a matter of law even if the allegations against the accused were accepted, he could never be convicted or that there was no sufficient evidence before the Trial Court to ever convict the accused of the charges levelled against him‑‑‑Powers under S.561‑A, Cr.P.C. should not be resorted to readily but only in the above circumstances as the said section is not meant to stifle the prosecution but is intended to prevent the abuse of the process of Court.

Mian Muneer Ahmed v. State 1985 SCMR 257; Mairaj Khan v. Gull Ahmed 2000 SCMR 122, State v. Gulzar Muhammad 1998 SCMR 873; Muhammad Latif v. Sharifan Bibi 1998 SCMR 660; Skahnaz Begum v. Honourable Judges of the High Court PLD 1971 SC 677; Anwar Ahmed Khan v. State 1986 SCMR 292 and Yasin Siddiqui v. The State 2001 PCr. LJ 1331 ref.

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

‑‑‑‑Ss. 9/10‑‑‑Criminal Procedure Code (V of 1898), S.561‑A‑‑‑Quashing of proceedings‑‑‑All prosecution witnesses had deposed against the accused and the case against him could not be said to be of no evidence and not liable to conviction‑‑‑Prosecution had satisfactorily established that the accused or other .persons on his behalf possessed properties beyond his known sources of income whereafter the burden of proof had shifted upon the accused and now it was for him to prove that such properties which stood in the names of his dependants, associates and other Benamidars had been acquired from legitimate resources‑‑­Accountability Court had rightly issued notices to the accused and others and directed them to establish that the properties in question were acquired by them from their own lawful means and not by the moneys accumulated by the accused through corruption and corrupt practices‑‑­Contention that the said notices could only be issued once the property of the alleged Benamidars was frozen had no force‑‑‑Petition was dismissed accordingly.

NAB v. Zahida Sattar PLD 2001 Kar. 256; Zahida Sattar v. The federation of Pakistan PLD 2002 SC 408; Ghulam Muhammad v. Muzammil Khan PLD 1967 SC 317; Raja Khushbakhtoor v. The State 1985 SCMR 1314; Khushi Muhammad v. The State 1979 SCMR 94; Yasin Siddiqui v. The State 2001 PCr.LJ 1331; Shaikh Majibur Rehman v: The State PLD 1967 Dacca 484; Mian Muneer Ahmed v. The State 1985 SCMR 257; Mairaj Khan v. Gull Ahmed 2000 SCMR 122, The State v. Gulzar Muhammad 1998 SCMR 873; Muhammad Latif v. Sharifan Bibi 1998 SCMR 660; Shahnaz Begum v. Hon'ble Judges of the High Court PLD 1971 SC 67'; Anwar Ahmed Khan v. The State 1986 SCMR 292 and Yasin Siddiqui v. The State 2001 PCr.LJ 1331 and Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 ref.

Azizullah K. Shaikh for Applicant.

Muhammad Anwar Tarique, D.P.G. for NAB.

Date of hearing: 30th July, 2002.

2003 P Cr. L J 216

[Karachi]

Before Muhammad Roshan Essani and Muhammad Mujeebullah Siddiqui, JJ

THE STATE‑ ‑‑Appellant

Versus

MUHAMMAD UMAR alias CHOTOO‑‑‑Respondent

Special Anti‑Terrorism Appeal No.56 of 2002, decided on 19th August, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑---‑‑Ss. 302/324‑‑‑Anti‑Terrorism Act (XXVII of 1997), Ss.6, 7, 8, 19(10) & 25(4)‑‑‑Criminal Procedure Code (V of 1898), Ss.417, 439 & 561‑A‑‑‑Acquittal of accused tried in absentia‑‑‑Validity‑‑‑Prosecution itself had prayed Anti‑Terrorism Court to try accused in absentia, which had tried him accordingly with law governing trial before Anti‑Terrorism Court‑‑‑Not open to prosecution to contend now that Trial Court ought to have separated the case of accused from other arrested accused and ought not have framed charge against him and tried him in absentia as no evidence was available against him‑‑‑Absconding accused could be tried in absentia by Anti‑Terrorism Court under S.19(10) of Anti‑Terrorism Act, 1997‑‑‑Prosecution itself had not produced any material before Trial Court warranting conviction of accused, thus, his acquittal was fully justified‑‑‑Judgment of acquittal was not open to exception for simple reason that memo. of appeal itself contained that prosecution had not been able to collect any material against accused and there, was no evidence whatsoever connecting him with offence for which he had been challenged to face trial‑‑‑High Court dismissed appeal in limine.

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

‑‑‑‑S. 512‑‑‑Trial in absentia‑‑‑Procedure:

In a normal trial under Criminal Procedure Code, 1898 an accused person cannot be tried in his absence and Court can merely record the evidence against an absconding accused person under section 512, Cr.P.C. and after arrest of accused, fresh trial takes place. In this manner, the trial of an absconding accused is separated from the trial of accused. appearing before Court.

However, if prosecution adopts a course, whereby an accused person has been challaned in absentia and trial in absentia is permissible under relevant law for the time being in force, and Court adopts the course suggested/proposed by prosecution; then prosecution is debarred from raising objection to such course adopted by Court.

(c) Approbate and reprobate‑‑‑‑‑‑‑

Nobody/party could be allowed to blow hot and cold at the same time‑‑‑No person could be allowed to approbate and reprobate in same matter.

(d) Criminal trial‑‑‑--

‑‑‑‑ Charge framed by Court at instance of prosecution ‑‑‑Validity‑‑‑Accused could take exception to such framing of charge, but prosecution could not be allowed to raise any objection to framing of charge against accused, who had been sent up by prosecution to face trial.

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

‑‑‑‑S. 512‑‑‑Challan by prosecution‑‑‑Submission of challans against arrested accused and absconding accused/suspects‑‑‑Procedure.

If in a particular case, certain accused persons have been arrested and investigation is conducted against them, while some other suspects are still at large and investigation is not closed against them, therefore, instead of submitting challan against such suspects, it is always open to prosecution to submit charge‑sheet against such accused persons only in respect of whom prosecution is able to collect sufficient evidence. It can be observed in a charge‑sheet that there are other suspects also against whom sufficient evidence has not been collected and prosecution reserves its right to investigate the case against other suspects/absconding accused persons as and when apprehended. By adopting such course, prosecution can conduct investigation against such persons as and when arrested and they can be separately charge‑sheeted, if in subsequent investigation sufficient evidence is collected against them.

However, if prosecution adopts a course, whereby an accused person has been challaned in absentia and trial in absentia is permissible under relevant law for the time being in force, and Court adopts the course suggested/proposed by prosecution, then prosecution is debarred from raising objection to such course adopted by trial Court.

(f) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑Ss. 302/324‑‑‑Anti‑Terrorism Act (XXVII of 1997), Ss. 6, 7, 8, 19(10) & 25(4)‑‑‑Criminal Procedure Code (V of 1898), Ss. 417, 439 & 561‑A‑‑‑Appeal against acquittal of accused tried in absentia alongwith arrested accused‑‑‑Contention of prosecution was that such acquittal was not on merits, but was mere technical acquittal, which could not create any right in favour of accused‑respondent for not being tried again for same evidence‑‑‑Validity‑‑‑High Court declined to consider such point in appeal directed against acquittal of accused by Trial Court which was left open‑‑‑Parties would be at liberty to raise same in appropriate proceedings, if so advised.

Habib Ahmed, A.A.‑G. for Appellant.

Nemo for Respondent.

Date of hearing: 19th August, 2002.

2003 P Cr. L J 229

[Karachi]

Before Muhammad Roshan Essani and Muhammad Mujeebullah Siddiqui, JJ

Mst NASIMA BEGUM‑‑‑Petitioner

Versus

GOVERNMENT OF SINDH‑‑‑Respondent

Constitutional Petition No. D‑1354 pf 2002, decided on 5th August 2002.

Constitution of Pakistan (1973)‑‑‑-

‑‑‑‑Art. 199 & 45‑‑‑Penal Code (XLV of 1860), Ss. 302/324/34‑‑‑West Pakistan Arms Ordinance (XX of 1965), S. 13‑D‑‑‑Constitutional petition‑‑‑Prayer for staying execution of death sentence of petitioner till final decision on his mercy petition pending with President of Pakistan‑‑­Validity‑‑‑Supreme Court had dismissed appeal of petitioner against his conviction and sentence‑‑‑High Court in exercise of its powers under Art.199 of the Constitution could not sit over decision of apex Court‑‑­Petitioner's case was not that legal heirs of deceased had‑ compromised with him or he had paid any blood money to legal heirs of deceased or they had pardoned him‑‑‑Petitioner in view of his acquittal by Judicial Magistrate in the case under S.13‑D of West Pakistan Arms Ordinance, 1965 could not claim reappraisal of evidence in main case "and stay of execution of sentence‑‑‑President of Pakistan had already considered and dismissed one mercy petition filed by the petitioner‑‑‑High Court dismissed Constitutional petition, in limine.

Amir Bux v. Secretary‑General, Ministry of Interior, Government of Pakistan 1984 PCr.LJ 1741 and Amir Bakhsh v. Secretary‑General Ministry of Interior Government of Pakistan PLD 1985 Kar.. 610 ref.

Syed. Saeed Hussain for Petitioner.

2003 P Cr. L J 236

[Karachi]

Before Sabihuddin Ahmed and Zia Perwez, J

ABDUL MAJEED BROHI‑‑‑Petitioner

Versus

FEDERATION OF PAKISTAN and others‑‑‑Respondents

Constitutional Petition No.D‑278 and Miscellaneous Applications Nos.675, 878 and 1705 of 2002, decided on 19th July, 2002.

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

‑‑‑‑Ss. 5(m)(iv)(v)(vi) & 12 [as amended]‑‑‑Pakistan Army Act (XXXIX of 1952), Ss. 8, 9, 10, 11, 12, 13, 14 & 15‑‑‑Constitution of Pakistan (1973), Arts. 199, 243 & 244‑‑‑Constitutional petition‑‑‑Freezing of assets‑‑‑Jurisdiction of National Accountability Bureau‑‑‑Plea of bar‑‑­Commission to Armed Forces, grant of‑‑‑Procedure‑‑‑Civilian Gazetted Officer in Armed Forces‑‑‑Status‑‑‑Contention of the petitioner was that he being a civilian Gazetted Officer. in Pakistan Army, the Chairman, National Accountability Bureau could not freeze his assets as he was a member of Armed Forces‑‑‑Validity‑‑‑Only after completion of the prescribed period of probation on administration of oath or affirmation in front of his corps or union, or such portion thereof as may be present or by any other prescribed persons in the prescribed form. in pursuance of the provisions of S.15 of Pakistan .Army Act, 1952 that an Officer is attested‑‑‑Commission is granted by the President in pursuance of Art.243 of the Constitution after attestation of an Officer in pursuance of S.15 of Pakistan Army Act, 1952 which confers upon an Officer, the status of a member of Armed Forces‑‑‑Petitioner in spite of being a Gazetted Officer was neither attested nor commissioned in pursuance of the provisions of S.15 of Pakistan Army Act, 1952 and Art. 243 of the Constitution, such Officer merely being a Gazetted Officer and subject to Field General Court Martial did not make him a Member of Armed Forces so as to attract the bar to the operation of National Accountability Bureau Ordinance, 1999‑‑‑Case of the petitioner was not beyond the jurisdiction of Accountability Court‑‑‑Bar to jurisdiction was restricted only to such‑ Officers who were the members of Armed Forces‑‑‑High Court declined to interfere with the order passed by the Chairman, National Accountability Bureau regarding freezing of the assets of the petitioner‑‑‑Constitutional petition was dismissed in circumstances.

O.K.A. Nair v. Union of India AIR 1976 SC 1179; Gopal Upadhyaya v. Union of India AIR' 1987 SC 413; Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Federation of Pakistan and 2 others v. Khursheed Ahmed and another 1999 SCMR 664; Mrs. Naheed Maqsood v: Federation of Pakistan 1999 SCMR 2078 and Zakim Khan Mehsoob v. Accountability Court No.3 and others Writ Petition No .909 of 2001 ref.

Muhammad Ashraf Kazi for Petitioner.

Muhammad Anwar Tariq, D.P. G. for NAB.'

Lt.‑Col. Inamur Rehim, Asstt. Judge, A.‑G. (on Court's Notice).

Date of hearing: 17th May, 2002.

2003 P Cr. L J 277

[Karachi]

Before Dr. Ghous Muhammad, J

NAUSHABA KAZI, XII CIVIL JUDGE, KARACHI (SOUTH)‑‑‑Complainant.

Versus

MEHJABEEN FARZANA, ADVOCATE‑‑‑Respondent

Criminal Original Miscellaneous No.1 of 1999, decided on 21st October, 1999.

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

‑‑‑Art. 264‑‑‑Repeal of laws‑‑‑Effect‑‑‑Principles‑‑‑Where an Ordinance being a temporary legislation having the effect of repealing an earlier permanent Enactment expires, the earlier permanent Enactment would automatically stand revived.

Government of Punjab v. Zia Ali Khan 1992 SCMR 602; Statutory Construction by Crawford, 1940 Edn., p.659; Cotlins v. Smith (pa.) 6 What 294; Interpretation of Statutes by Maxwell, 12th Edn., 1969, p.19; Phillips v. Hopwood (1829) 10 B & C 39; Tattle v. Grimwood (1826) 3 Bing. 493; Fuller v. Redman (1859) 29 LJ Ch. 324; Eton College v. Minister of Agriculture (1964) Ch. 274; Butcher v. Henderson (1868) LR 3 QB 335; Muhammad Arif v. State 1993 SCMR 1589; Crown v. Haveli PLD 1949 Lah. 550; Arbab Muhammad Hasham Khan v. The Crown PLD 1953 Pesh. 72; State v. Muhammad Sharif PLD 1960 Lah. 236; Jibendra Kishore v. The Province of East Pakistan PLD 1957 SC 9; Pakistan Tanneries Ltd. v. Sardar Hidayatullah Mokal PLD 1972 Lah. 880; Abdul Ghani v. Province of Balochistan PLD 1982 Quetta 63; CIT v. Ebrahim D. Ahmed and others (1992) 66 Taxation 1 (SC Pak.); .Principles of Statutory Interpretation by Justice G.P. Singly 5th Edn., 1992, p.368; Gooderham and Works Ltd. v. Canadian Broadcasting Corporation AIR 1949 PC 90; Patel Kana Kachra v. JRdtja Bhikhubha Pathubha AIR 1953 Sau. 195; Union of India v. R.C. Jall of Indore AIR 1958 Madh. Pra. 425; R.C. Jall v. Union of India AIR 1962 SC 1281; State of Orissa v. Bhupendra Kumar Bose AIR 1962 SC 945 AIR 1960 Orissa 46; Warren v. Windle (1803) 102 ER 576 and R v. Rogers (1809) 13 ER 891 . ref.

(b) Contempt of Court‑‑‑-

‑‑‑‑ Law of contempt‑‑‑Intent and import‑‑‑Law of contempt is essential to protect Judges from insult, violence and scandal and it ensures a smooth functioning of judicial system and the judiciary‑‑‑Legal system without the law of contempt would have the tendency of creating chaos and malfunction in a proper dispensation of justice which cannot be the intention of the Legislature.

Zainab v. Kamal PLD 1990 SC 1051; Kamran Industries v. Collector of Customs PLD 1996 Kar. 68; Province of East , Pakistan v. Sirajul Haque Patwari PLD 1966 SC 854; Multiline Associate v. Ardeshir Cowasjee PLD 1995 SC 423; Ardeshir Cowasjee and others v. K.B.C.A. and others Civil Appeal No.1888 of 1996 and Masroor Ahsan v. Aredshir Cowasjee PLD 1998 SC 823 ref.

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

‑‑‑Preamble‑‑‑Contempt of Court Ordinance (X of 1998), preamble‑‑­Revival of the Contempt of Court Act, 1976‑‑‑After the lapse of the Contempt of Court Ordinance, 1998; the Contempt of Court Act, 1976, holds the field and has automatically revived.

Government of Punjab v. Zia Ali Khan 1992 SCMR 602; Statutory Construction by Crawford, 1940 Edn., p.659; Cotlins v: Smith (pa.) 6 What 294; Interpretation of Statutes by Maxwell, 12th Edn., 1969, p.19; Phillips v. Hopwood (1829) 10 B & C 39; Tattle v. Grimwood (1826) 3 Bing. 493; Fuller v. Redman (1859) 29. LJ Ch. 324; Eton College v. Minister of Agriculture (1964) Ch. 274; Butcher v. Henderson (1868) LR 3 QB 335; Muhammad Arif v. State 1993 SCMR 1589; Crown v. Haveli PLD 1949 Lah. 550; Arbab Muhammad Hasham Khan v. The Crown PLD 1953 Pesh. 72; State v. Muhammad Sharif PLD 1960 Lah. 236; Jibendra Kishore v. The Province of East Pakistan PLD 1957 SC 9; Pakistan Tanneries Ltd. v. Sardar Hidayatullah Mokal PLD 1972 Lah. 880; Abdul Ghani v. Province of Balochistan PLD 1982 Quetta 63; CIT v. Ebrahim D. Ahmed and others 1992 PTD 1353; Principles of Statutory Interpretation by Justice G.P. Singh, 5th Edn., 1992, p.368; Gooderham and Works Ltd. v. Canadian Broadcasting Corporation AIR 1949 PC 90; Patel Kana Kachra v. Jadeja Bhikhubha Pathubha AIR 1953 Sau. 195; Union of India v. R .C. Jall of Indore AIR 1958 Madh. Pra. 425; R.C. Jall v. Union of India AIR 1962 SC 1281; State of Orissa v. Bhupendra Kumar Bose AIR 1962 SC 945; AIR 1960 Orissa 46; Warren v. Windle (1803) 102 ER 576; R v. Rogers (1809) 13 ER 891; Surjan Singh v. East Punj. Government AIR 1957 Punj. 265; Zainab v. Kamal PLD 1990 SC 1051; Kamran Industries v. Collector of Customs PLD 1996 Kar, 68; Province of East Pakistan v. Sirajul Haque Patwari PLD 1966 SC 854; Multiline Associate v. Ardeshir Cowasjee PLD 1995 SC 423; Ardeshir Cowasjee and others v. K.B.C.A. and others Civil Appeal No.1888 of 1996 and Masroor Ahsan v. Ardeshir Cowasjee PLD 1998 SC 823 ref.

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

‑‑‑‑S. 6‑‑‑Penal Code (XLV of 1860), S.228‑‑‑Bar of jurisdiction‑‑‑Act of the accused may constitute an offence punishable under S.228, P.P.C., but since S.228, P.P.C. did not prescribe an offence of contempt of Court, the bar contained in S.6 of the Contempt of Court Act, 1976, was not applicable.

Abdur Rasheed v. Mehr Falak Sher PLD 1955 FC 198; State v. Abdul Aziz PLD 1962 Lah. 335 and Syed Saghir Ahmed Naqvi v. Ziauddin 1999 PCr.LJ 72 ref.

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

‑‑‑‑Ss. 3, 4 & 6‑‑‑West Pakistan Family Courts Act (XXXV of 1964), S.16‑‑‑Bar to take cognizance‑‑‑Section 16 of the West Pakistan Family Courts. Act, 1964, no doubt empowers the Family Court to punish a contemner, but the same does not exclude the proceedings which are in the form of cognizance under the Contempt of Court Act, 1976‑‑‑Bar contained in S.6 of the Contempt of Court Act, 1976, is in relation to the offences which may constitute a Contempt of Court under the Penal Code and cannot be extended by any analogy to include the West Pakistan Family Courts Act, 1964.

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

‑‑‑‑Ss. 3/4‑‑‑Constitution of Pakistan (1973), Art. 14 ‑‑‑Judge's Chamber, privacy of‑‑‑Judge's chamber is not part of a Court room and lawyers or members of the public should not enter without prior permission‑‑­Entering the Judge's Chamber without permission by itself constitutes a contempt of Court‑‑‑Article 14 of the Constitution also provides a right of privacy to the Judge's Chamber.

The Oxford Companion to Law by David M. Walker, p.200 (Calendar Press Oxford, 1980); The Law of Contempt by Negel Lowe and Brenda Sufrin (Butterworths London, 1996), Third Edn. p.341 Re: Johnson (1987) 20 QBD 68; Words and Phrases by St. Paul, Minn, West Publishing Co., Permanent Edn., Vol. 6A, pp.140 and 141; Verdigris Conservancy Dist. 280, pp.966, 968, 131 Kan : 214; Morehead v. Alien 63 SE 507. 510, 131 Ga. 807; Hoskins v. Baxters 66 NW 969 970. 64 Minn. 226; Kirby v. Chicago, R.I.& P. Ry. Co. 116 pp.150, 151, 51 Colo 82, citing Rap. & L.Law Dict. Bouvier; Atchison T. & S.F. Rv. Co. v. Long 251 p.486, 491. 122 Okl. 86; Chapman v. Chattooga Oil Mills Co. 96 SE 579, 580, 22 Ga. App. 446; National Salt Co. v. United Salt Co. 11 Ohio Dee, 348, 354, 8 Ohio NP 325; Wheeler v. Taft. C.C.A. La. 261 F. 978, 980; Pittsburgh, Ft. W. & O.R. Co. v. Hurd 17 Ohio St. 144, 146; Morehead v. Allen 56 SE 745, 747, 748, 127 Ga. 669; Civ. Code 1805 & 3172, 4864; Mc. Gowan v. Luftborrow 9 SE 427, 82, Ga 523, 14 Am. .St. Rep. 178; Skinner v. Robberts 17 SE 353, 92 Ga. 366; Von Schmidt v. Widber, 34 p.109, 110, 99 Cal. 511; Neagle 30 F. 833, 855, 5 LRA 78; Criminal Miscellaneous No.19‑K of 1994; Muhammad Ilyas Khan v. Asad Ali Bilgrami 1997 SCMR 569; Ghulam Murtaza Azad, Islamic Research Institute International Islamic University, Islamabad, 1st Edn., 1987; AI‑Wawardi (d.450 A.H.) Al Ahkam Al‑Sultaniyah, Cairo, 1298 A.H. translated in Urdu by Mufti Intizamullah Shahabi, Karachi. N.D., A1 Marghinani (d.593 A.H.); Hidaya, English translation by Charles Hamilton, Lahore 1957 AD 334; Arif al Kindi Al‑Qada `Fi'1 Islam, Damascus, 1361 A.H. 6; Islamic Nizam‑a‑Adalat, Karachi, 1978 by Justice (Retd.) Dr. Tanzil‑ur‑Rehman, Judge; Dawn 15 October, 1999; Badai‑us‑Sanai by Allama Abu Bakar Allaudin Al‑Kasani, Urdu translation by Prof. Khan Muhammad Chawla ref.

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

‑‑‑‑Ss. 3/4‑‑‑Defence evidence was inconsistent as well irrelevant and being unworthy of credit could not be relied upon‑‑‑Prosecution testimony of eye‑witnesses on the other hand was unassailable‑‑­Accused Lady Advocate was proved on record to have entered the Chamber of the Lady Family Judge without her permission and thereafter abused and misbehaved with her‑‑‑Accused had not only pulled the blazer cloth of the complainant's table, but had also unjustifiably kept the call bell and other stationery items of the complainant's chamber with her‑‑‑Accused, thus, was found guilty of contempt of Court and was convicted under S.3 read with S.4 of the Contempt of Court Act, 1976‑‑‑Accused Advocate, however, had a standing of 20 years at the Bar and was a female and sick and thus was sentenced to remain in the Court till its rising with a fine.of Rs.5,000, in default whereof she was to undergo one week's S.I.‑‑‑Accused was also debarred from practice in the High Court and in the subordinate Courts for a period of six months:

Government of Punjab v. Zia Ali Khan 1992 SCMR 602; Statutory Construction by Crawford, 1940 Edn., p. 659; Cotlins v. Smith (pa.) 6 What 294; Interpretation of Statutes by Maxwell, 12th Edn. 1969 p.19; Phillips v. Hopwood (1829) 10 B & C 39; Tattle v. Grimwood (1826) 3 Bing. 493; Fuller v. Redman (1859) 29 LJ Ch. 324; Eton College v. Minister of Agriculture (1964) Ch. 274; Butcher v. Henderson (1868) LR 3 QB 335; Muhammad Arif v. State 1993 SCMR 1589; Crown v. Haveli PLD 1949 Lah. 550; Arbab Muhammad Hasham Khan v. The Crown PLD 1953 Pesh. 72; State v. Muhammad Sharif PLD 1960 Lah. 236; Jibendra Kishore v. The Province of East Pakistan PLD 1957 SC 9; Pakistan Tanneries Ltd. v. Sardar Hidayatullah Mokal PLD 1972 Lah. 880; Abdul Ghani v. Province of Balochistan PLD 1982 Quetta 63; CIT v. Ebrahim D. Ahmed and others 1992 PTD 1353; Principles of Statutory Interpretation by Justice G.P. Singh, 5th Edn. 1992 p.368; Gooderham and Works Ltd. v. Candian Broadcasting Corporation AIR 1949 PC 90; Patel Kana Kachra v. Jadeja Bhikhubha Pathubha AIR 1953 Sau. 195; Union of India v. R.C. Jall of Indore AIR 1958 Madh. Pra. 425; R.C. Jall v. Union of India AIR 1962 SC 1281; State of Orissa v. Bhupendra Kumar Bose AIR 1962 SC 945; AIR 1960 Orissa 46; Warren v. Windle (1803) 102 ER 576; R v. Rogers (1809) 13 ER 891; Surjan Singh v. East Punjab Government AIR 1957 Punj.‑265; Zainab v. Kamal PLD 1990 SC 1051 Kamran Industries v. Collector of Customs PLD 1996 Kar. 68 province of East Pakistan v. Sirajul Haque Patwari PLD 1966 SC 854: Aultiline Associate v. Ardeshir Cowasjee PLD 1995 SC 423; Ardeshs Cowasjee and others v. K.B.C.A. and others Civil Appeal No.1888 of 1996; Masroor Ahsan v. Ardeshir Cowasjee PLD 1998 SC 823; Abdur Rasheed v. Mehr Falak Sher PLD 1955 FC 198; State v. Abdul Aziz PLD 1962 Lah. 335; Syed Saghir Ahmed Naqvi v. Ziauddin 1999 PCr.LJ 72; Javed Malik v. State 1998 MLD 1400; Muhammad Saleem v. Altaf Hussain 1998 CLC 1883; PLD 1998 (sic) p.1738; PLD 1995 SC 450 Ramdas v. Berinadat PLD 1998 Kar. 48; 1998 SCMR 857; Muhammad Younas v. State 1992 SCMR 1592; 1990 PCr.LJ 1738; Shahnaz Bibi v Muhammad Akram 1995 PCr.LJ 307; PLD 1962 SC 335; 1998 SCMR 2265; Amir Abdullah v. State 1980 SCMR 51; Mazhar Mir v. State 1991 PCr. L J 454; Sakhi Muhammad v. Muhammad Nasir Bashir 1999 CLC 454; Muhammad Murtaza Qazi. v. University of Sindh PLD 1960 Kar 500 ; Jan Muhammad v. Abdur Rehman 1998 CLC 266; Muhammad Din v. State PLD 1959 SC 491; The Oxford Companion to Law by David M Walker, p.200 (Clrendar Press of Oxford, 1980); The Law of Contempt by Negel Lowe and Brenda Sufrin (Butterworths London, 1996; Re Johnson (1987) 20 QBD 68; Words and Phrases by St. Paul, Minn, West Publishing Co., (Permanent Edition), Vol. 6A, p.140, p.341; Verdigris Conservancy Dist. 280 p.966, 968, 131 Kan : 214; Morehead v. Alien 63 SE 507. 510, 131 Ga. 807; Hoskins v. Baxters 66 H.W. 969, 970, 64 Minn. 226; Kirby v. Chicago, R.I.& P. Ry. Co. 116 p.150, 151, 51 Colo 32, citing Rap. & L.Law Dict. Bouvier; Atchison T. & S.F. Rv. Co. v Long 251 p.486, 491, 122 Okl. 86; Chapman v. Chattooga Oil Mills Co 96 SE 579, 580, 22 Ga. App. 446; National Salt Co. v. United Salt Co 11 Ohio Dee, 348, 354, 8 Ohio N.P. 325; Wheeler v. Taft. C.C.A. La., 261 F. 978, 980; Pittsburgh, Ft. W. & O.R. Co. v. Hurd 17 Ohio St 144, 146; Morehead v. Allen 56 )E 745, 747, 748, 127 Ga. 669; Civ Code 1805 & 3172, 4864; Mc.Gowan v. Luftborrow 9 SE 427, 82 Ga 523, 14 Am. St. Rep. 178; Skinner v. Robberts 17 SE 353, 92 Ga. 366 Von Schmidt v. Widber, 34 p.109, 110, 99 Cal. 511; Neagle '30 F. 833, 855, 5 LRA 78; Criminal Miscellaneous No. 19‑K of .1994; Muhammad Ilyas Khan v. Asad Ali Bilgrami 1997 SCMR 569; Ghulam Murtaza Azad, Islamic Research Institute International Islamic University, Islamabad, 1st Edn., 1987; Al‑Wawardi (d.450 A.H.) Al Ahkam Al ­Sultaniyah, Cairo, 1298 A.H. translated in Urdu by Mufti Intizamullah Shahabi, Karachi. N.D., A1 Marghinani (d.593 A.H.); Hidaya, English Translation by Charles Hamilton, Lahore, 1957 A.D. 334; Arif al Kind Al‑QadaFi'1 Islam, Damascus 1361 A.H. 6; Islamic Nizam‑a‑Adalat, Karachi by Justice (Retd.) Dr. Tanzi‑lur‑Rehman; Judge, Dawn 15th October, 1999; Badai‑us‑Sanai by Allama Abu Bakar Allaudin Al‑Kasani Urdu translation by Prof. Khan Muhammad Chawla ref.

Habib Ahmad A.A.‑G. for the Complainant.

Accused in person with Mansoob Ali, Advocate.

Date of hearing: 23rd August, 1999.

2003 P Cr. L J 314

[Karachi]

Before Amir Hani Muslim and Maqbool Baqar, JJ

SOMLO‑‑‑Petitioner

Versus

A.S.‑I. ATTA MUHAMMAD and others‑‑‑Respondents

Constitutional Petition No.D‑349 of 2002, decided on 2nd October, 2002.

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

‑‑‑S. 10(3)‑‑‑Constitution of Pakistan (1973)., Art. 199‑‑‑Constitutional petition‑‑‑In view of the allegations and counter‑allegations made by the accused and the police against each other lady accused had been granted bail by the High Court in the case registered against her‑‑District Judge concerned was also directed to hold an inquiry into the said allegations and counter‑allegations allowing both the parties to examine witnesses in support of their respective versions and to initiate appropriate action against the party found guilty‑‑‑Petition was disposed of accordingly.

Ms. Nuzhat Pathan for Petitioner.

Masood Noorani, Addl. A.‑G. for the State.

Date of hearing: 2nd; October, 2002

2003 P Cr. L J 319

[Karachi]

Before S. Ahmed Sarwana, J

Maulvi SHAHZADO DREHO‑‑‑Petitioner

Versus

KHALID MAHMOOD SOOMRO and others‑‑‑Respondents

Constitutional Petition No.S‑715 of 1999, decided on 22nd October, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑S. 154‑‑‑Constitution of Pakistan (1973), Arts.4 & 199‑‑­Constitutional petition‑‑‑Petitioner had prayed that he having been harassed and maltreated by the Deputy Commissioner and Senior Police Officer and other police officials, F.I.R. ordered to be lodged against them‑‑‑Petition was resisted on the ground that if petitioner was aggrieved by action of said officers he could file a private complaint before a Magistrate or a suit for damages‑‑‑Validity‑‑‑Petitioner though was at liberty to file a private complaint or a civil suit, but law had nowhere prohibited or disentitled a person from filing a complaint with police against any person who in his opinion had committed a penal offence‑‑‑Verb "shall" used in S.154; Cr.P.C. had clearly indicated that the same had been used in mandatory sense and did not allow any discretionary powers to officer‑in‑charge of a police station and if the information given was cognizable S.H.O. had no choice, but to register complaint and enter the same in book prescribed by law‑‑‑Private complaint would not be an appropriate and adequate remedy for the petitioner in view of allegations made against officers concerned‑‑­Petitioner had right to ask officer‑in‑charge of police station to record F.I.R. against said officers who had committed a cognizable offence‑‑­Petitioner had fundamental right to require Police Officer to act in accordance with law‑‑‑No one could deprive petitioner of his right guaranteed under the Constitution to be treated in accordance with law.

Altaf Hussain v. Government of Sindh PLD 1997 Kar. 6001 and Muhammad Ilyas v. Senior Superintendent of Police 1989 PCr.LJ 1129 ref.

(b) Precedent‑‑‑

‑‑‑‑ Earlier judgment of a Division Bench of High Court on same point was binding upon subsequent Division Bench of the same High Court.

Multiline Associates v. Aredshir Cowasjee and others 1995 SCMR 362; Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883 and Multiline Associates v. Ardeshir Cowasjee and others PLD 1995 SC 423 ref.

Petitioner in person.

G.D. Shahani, Addl. A.‑G. for Respondents.

Date of hearing: 22nd October, 2001.

2003 P Cr. L J 338

[Karachi]

Before Wahid Bux Brohi, J

BASHIR and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.561 of 2001, decided on 13th December, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)‑‑‑Bail, grant of‑‑Further inquiry‑‑‑­F. I. R. lodged with delay‑‑‑Since faces of culprits were muffled, identity as culprits, in absence of other positive evidence, would require further inquiry‑‑‑Fact of recovery of motorcycle after two years would at the most constitute an offence‑ under S.411, P.P.C. which was punishable with three years only and did not fall within the prohibitoy clause of S.497(1), Cr.P.C.‑‑‑Accused had been involved in the case on basis of statement of co‑accused made during interrogation which was inadmissible in evidence‑‑‑Accused were entitled to grant of bail, in circumstances.

David Daufer v. State SBLR 2001 SC 132 and 2001 PCr.R 1578. ref.

Muzaffar Ali Leghari for Applicants.

Mukhtiar Ahmed Khanzada for the State.

Date of hearing: 13th December, 2001.

2003 P Cr. L J 344

[Karachi]

Before S. Ahmad Sarwana, J

NOOR MUHAMMAD MAHAR ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.723‑S of 2001, decided on 20th December, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), 5.459/34‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑D‑‑‑Bail, grant of‑‑‑Documents produced on record showed that no delay was found in having the accused identified by complainant in identification parade‑‑‑Complainant, in identification, had unequivocally stated that accused was the same person who had fired with a pistol hitting him on the shoulder, it could not, in circumstances, be said that no role was' assigned to the accused‑‑­Complainant had identified only one person and also had described his role of injuring complainant in the shoulder with a pistol shot‑‑‑Affidavits filed by two prosecution witnesses which had stated that accused was innocent and was not involved in the crime, were mala fide and could not be relied upon‑‑‑Trial 'Court, in circumstances had, rightly dismissed bail application of accused‑‑‑Order of Trial Court could not be interfered with in absence of any illegality or misapplication of law.

1981 PCr.LJ 1225; 1989 PCr.LJ 1123; 1995 SCMR 127; Muhammad Ahmed v. The State 1995 SCMR 1237 and Naseer Ahmed v. The State PLD 1997 SC 347 ref.

Maqbool Ahmed Awan for Applicant.

Abdul Sattar Soomro for the State.

Dates of hearing: 10th and 11th December, 2001.

2003 P Cr. L J 350

[Karachi]

Before Faiz Muhammad Qureshi, J

Dr. SHAUKAT ZAMAN KHAN‑‑‑Appellant

Versus

MUHAMMAD NAIM and another‑‑‑Respondents

Criminal Acquittal Appeal No. 176 of 2000, decided on 1st April, 2001.

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

‑‑‑‑Ss. 200, 249‑A & 417‑‑‑West Pakistan Pure Food Ordinance (VII of 1960), Ss. 6 & 32‑‑‑Direct .complaint‑‑‑Appeal against acquittal‑‑akcquittal by unauthorized person ‑‑‑Effect‑‑‑Bailable warrants were issued against accused, on a direct complaint, who appeared and furnished surety to face trial‑‑‑Accused was acquitted by Trial Court on his application under S.249‑A, Cr.P.C. and appeal was filed against such acquittal‑-‑Director‑General, Health Services empowered under S.32 of West Pakistan Pure Food Ordinance, 1960 had authorized a doctor other than the complainant/appellant to launch prosecution against food offenders within the area concerned‑‑‑Doctor so appointed was an aggrieved person by virtue of S.417(2‑A), Cr. P.C. who only could file appeal against acquittal of accused‑‑‑Appellant who by no means had been authorized in the case was incompetent to file complaint and appeal‑‑‑Appeal against acquittal filed by unauthorized person even otherwise being barred by time, was dismissed, in circumstances.

Ali Manzoor Ahmed for Appellant.

Adil Beg for Respondent No. 1

Arshad Lodhi, Asstt. A.‑G. for Respondent No. 2.

Date of hearing: 11th April, 2001.

2003 P Cr. L J 359

[Karachi]

Before S. Ali Aslam Jaferi, J

WAZIR‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Revision No.40 of 2002, heard on 21st October, 2002.

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

‑‑‑‑S. 103‑‑‑Recovery proceedings‑‑‑Non‑association of private respectable persons of locality‑‑‑Effect‑‑‑Non‑association of private respectable persons of locality could not be considered to be fatal for the recovery made where accused himself would lead to a particular place and got articles recovered‑‑‑Recovery could not be deemed to be in violation of S.103, Cr.P.C.

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

‑‑‑‑S. 13‑E‑‑‑Appreciation of evidence‑‑‑Crime weapon and cartridges allegedly recovered from accused were not sealed at the spot by Investigating Officer and same were not referred to Ballistic Expert so as to justify that said 'weapon was in working condition‑‑‑Alleged crime weapon was not shown or put .to accused at the stage of recording his statement under S.342, Cr.P.C.‑‑‑Entry kept by Investigating Officer in Station Diary of Police Station before leaving for making recovery, was not produced and it was only after statement of accused that same was taken on record by Trial Court without examining person concerned to produce the same‑‑‑Accused, in circumstances stood deprived of his right of cross‑examination so far as entry was concerned‑‑‑Non‑sealing of weapon allegedly recovered from accused and non‑referring the same to Ballistic Expert had caused dents in the prosecution case ‑‑‑Non­ production of Station Diary at relevant time showing the departure of Police from police station on specified date and time for making recovery could not be ignored as it was the duty of prosecution to have produced such important piece of evidence at proper time‑‑‑Conviction awarded to accused by Court below was set aside and accused was acquitted in case.

Loung v. The State 1999 PCr.LJ 595; Abdul Sattar and others v. The State 2002 PCr.LJ 51; Ashique Ali v. The State 2002 PCr.LJ 450 and Mir Muhammad v. The State 1995 SCMR 614 ref.

Muhammad Sharif H. Qazi for Applicant.

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

2003 P Cr. L J 365

(Karachi)

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

MUHAMMAD IQBAL and others‑‑ ‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Revisions Nos. 146, 165 to 174 and 181 of 2001, decided on 6th February, 2002.

Anti‑Terrorism Act (XXVII of 1997)‑‑‑

‑‑‑‑Ss. 6 & 39‑C(2)(e) (as amended by Anti‑Terrorism (Amendment) Ordinance (XXXIX of 2001)]‑‑‑Cases relating to vehicle‑snatching and criminal trespass (illegal Qabza)‑‑‑Transfer of cases to Court of Session‑‑Cases of vehicle snatching and criminal trespass (illegal Qabza) after amendment made in Anti‑Terrorism Act, 1997 by Anti‑Terrorism (Amendment) Ordinance, 2001 having been made triable by Courts of Session or such other Court of competent jurisdiction, such cases pending in Anti‑Terrorism Court or Special Court were ordered to be transferred .o respective Sessions Courts for further proceedings in accordance with law.

Khawaja Naveed Ahmed for Applicant (in Criminal Revision No. 181 of 2001).

Obaidur Rehman for Applicant (in Criminal Revision No. 146 of 2001):

S. Mehmood Alam Rizvi for Applicant (in Criminal Revisions Nos. 165 to 174 of 2001).

Habib Ahmed, A.A.‑G. for the State.

Date of hearing: 6th February, 2002.

2003 P Cr. L J 371

[Karachi]

Before Ata‑ur‑Rehman, J

ROSHAN and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.S‑633 of 2001, decided on 18th September, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.337‑F(i), 147, 148 &, 504‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Fight between two groups and two F.I. Rs. were filed by both the parties against each other‑‑‑Both sides received injuries and counter ‑ version was recorded by each party and it was yet to be decided as to who was the aggressor in the matter‑‑­Case against accused being of further inquiry, they were allowed bail.

Shoaib Mehmood Butt v. Iftikhar‑ul‑Haq and 3 others 1996 SCMR 1845 ref.

Muhammad Ayaz Soomro for Applicants.

Altaf Hussain Surahio for the State.

2003 P Cr. L J 379

[Karachi]

Before S. Ali Aslam Jafari, J

ALI BAKHSH BABAR‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.516 of 2002, heard on 21st October, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑L Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.11/16‑‑‑Penal Code (XLV of 1860), Ss. 147, 148 & 149‑‑­Bail, grant of‑‑‑Further inquiry‑‑‑Report against accused was lodged after about 22 days of incident and no explanation was coming forth for such delay ‑‑‑Prosecutrix was produced before the Magistrate about four days after, her return to house of her parents‑‑‑Prima facie chance of tutoring during that period of four days could not be ruled out under circumstances of the case‑‑‑Affidavit of prosecutrix to the effect that she had neither been abducted nor enticed away by any person and she had left the house of her parents on her own, her Nikahnama, coupled with factum of delay in lodging F.I.R., had made it a case of further inquiry‑‑­Bail was granted to‑the accused.

Abdul Rasool Abbasi for Applicant.

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

Altaf Hussain Surahio for the Complainant., Date of hearing: 21st October, 2002.

2003 P Cr. L J 383

[Karachi]

Before Mushir Alam, J

HAJI JAR0 and 2 others‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.425 of 2000, decided on 5th October, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302(a)/504/34‑‑‑Bail, grant ‑‑‑Accused were specifically mentioned in F.I.R. with respective capons ‑‑Accused were seen by complainant and other witnesses duly armed after they rushed to the place of incident where brother of complainant was found dead on account of fire‑arm and hatchet injuries a his person ‑‑‑F.I. R. had shown that old enmity existed between the parties‑‑‑Contention of accused that they. had been implicated in the case on account of enmity between parties, could not be ruled out, but enmity was a double‑edged weapon which would cut both ways and that could very well be a motive for accused for committing crime and that could be determined at trial‑‑‑Since recovery had been effected from the accused and even Medical. Report had shown that deceased had received fire‑arm injury and hatchet injuries on his person, it could not be said at the bail stage that medical evidence did not corroborate the ocular evidence‑‑­Case being recent one and no evidence had been recorded, Trial Court had rightly rejected the bail application of accused.

Allah Bachayo Baloch for Applicants.

Ali Azhar Tunio, Asstt. A.‑G.

2003 P Cr. L J 387

[Karachi]

Before Ghulam Rabbani, J

GHULAM RASOOL ‑‑‑ Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.8 of 2000, decided on 21st February, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), Ss.380/457‑‑‑Pre‑arrest bail, confirmation of‑‑‑Complainant party was alleged to be inimical to accused who was poor Hari and that complainant party in connivance with police acting mala-fidely had falsely involved accused in the case‑‑­F.I.R. in the case had been allegedly lodged after inordinate delay of about four months of alleged occurrence‑‑‑Both Ss.380/457, P.P.C. applied against accused were not punishable with sentence of death, imprisonment for life or even for ten years and that police was making vigorous efforts at the instance of complainant party to arrest, humiliate and maltreat accused and accused apprehended his imminent arrest ‑‑‑Pre-­arrest bail earlier having been granted to accused without touching merits of case, present bail application could be heard by High Court‑‑‑State Counsel had recorded his no objection to confirmation of bail so granted to accused‑‑‑Pre‑arrest bail granted to accused was confirmed on same terms and conditions.

Shafi Muhammad Memon for Applicant.

Bahadur Ali Baloch, State Counsel.

2003 P Cr. L J 391

[Karachi]

Before Zahid Kurban Alvi, J

ABBAS and Another‑‑‑Applicants

Versus

THE STATE‑‑‑Opponent

Criminal Bail Application No.517 of 2002, decided on 4th October, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.324/34‑‑‑Bail, grant of‑‑­Accused could not make out a case for grant of bail as F.I.R. had clearly shown that two men/accused persons, got down from their motorcycle and fired straight at the victim‑‑‑Accused might have come with intention to kill, but victim fortunately had merely received injuries‑‑‑Bail was declined in circumstances.

Shafi Muhammad Memon for Applicants.

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

2003 P Cr. L J 394

[Karachi]

Before Muhammad Moosa K. Leghari, J

MOULA BUX and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 194 of 2002, decided 6th May, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)‑‑‑Bail, grant of‑‑‑Further inquiry‑‑­F.I.R. was registered after delay of 43 days and such delay had been explained‑‑‑Delay per se in registration of F.I. R. could not be a ground to make case against accused doubtful if there was other incriminating evidence against him ‑‑‑Challan against accused had been submitted‑‑‑Nothing had been recovered from accused and no incriminating evidence existed to connect accused with commission of crime, except that they had been nominated in the F.I.R.‑‑‑Nomination of accused in inordinately delayed F.I.R. had rendered case against them of further inquiry‑‑‑Accused, in circumstances, were entitled to grant of bail.

1998 PCr.LJ 319; 2000 PCr.LJ 159; 2001 MLD 1475; 2001 PCr.LJ 403 and 2000 PCr.LJ 408 ref.

Madad Ali Shah Syed for Applicants.

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

2003 P Cr. L J 398

[Karachi]

Before S. Ali Aslam Jaferi, J

ABDUL SATTAR NAREJO‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.319 of 2002, decided on 2nd November, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), Ss.302/324/337‑A(i), F(i), 403/147/148/149/114/109‑‑‑Interim pre‑arrest bail, confirmation of‑‑­Case of accused was distinguishable from that of co‑accused‑‑‑Accused was an elderly person of the locality and headman of his family‑‑‑Arrest of accused could cause insult and humiliation to him as well as to his family‑‑‑No useful purpose would be served if he was taken in custody by Police or the Trial Court and subsequently released on bail‑‑‑Interim pre­-arrest bail granted to accused was confirmed on the same terms and conditions.

1985 SCMR 194; 1995 SCMR 310; Criminal Bail Application No.443 of 2001; 1990 SCMR 83; 1990 SCMR 578 and 1999 PCr.LJ 175 ref.

Azizullah M. Buriro for Applicant.

Muhammad Sharif H. Qazi for the Complainant."

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

2003 P Cr. L J 408

[Karachi]

Before Muhammad Moosa K. Leghari, J

DODO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.427 of 2002, decided on 2nd September, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/504/147/148---Bail, grant of ---F.I.R. had revealed that deceased died due to gunshot injury caused by co-accused---Accused and co-accused though were armed with hatchets, but no overt act had been attributed to them ---Co-accused having been granted bail, following the rule of consistency accused was also admitted to bail.

Abdul Rasool Abbasi for Applicant.

Muhammad Azim Panwhar for the State.

2003 P Cr. L J 411

[Karachi]

Before Wahid Bux Brohi, J

MUSHTAQUE---Applicant

Versus

THE STATE- --Respondent

Criminal Bail Application No.357 of 2002, decided on 26th March, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.380/411/34---Bail, grant of ---Further inquiry---Offence allegedly committed by accused did not fall within prohibitory clause of S.497, Cr.P.C.---Delay in lodging F.I.R.---No active role of commission of theft was assigned to accused--Recovery was joint and not from exclusive possession of accused and even on basis of statements of witnesses, the guilt of accused would call for further inquiry---Bail was granted to accused, in circumstances.

Syed Jawaid Haider Kazmi for Applicant.

Miss Masooda Siraj for the State.

2003 P Cr. L J 414

[Karachi]

Before Mushir Alam, J

NAZARO alias NAZAR MUHAMMAD and 7 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.527 of 2002, decided on 4th November, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/337-F(vi)/337-L(2)/ 504/147/148/149---Bail, grant of---Accused were alleged to have caused Lathis and hatchet blows on complainant party ---Counter-cases were lodged in respect of same incident in which both parties had received injuries ---Complainant party being also at large, benefit of bail was extended to the accused.

Shoib Muhammad v. Iftikhar-ul-Haq 1996 SCMR 1845 ref.

Madad Ali Shah Syed for Applicants.

Muhammad Azeem Panhwar for A.-G. for the State.

2003 P Cr. L J 418

[Karachi]

Before S. Zawwar Hussain Jaffari, J

NAZEER---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-484 of 2002, decided on 6th September, 2002.

Criminal Procedure Code (V of 1898)---

----S.498---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Interim pre-arrest bail, confirmation of---Main accused against whom complainant had alleged that they had committed the offence, had been released on bail and case of accused was on better footing than that of said co-accused--­Prosecution had not opposed confirmation of bail---Accused was serving as Primary School Teacher and if bail was not confirmed he would lose his liberty and reputation---Bail was confirmed on same terms and conditions.

Abdul Rasool for Applicant.

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

2003 P Cr. L J 421

[Karachi]

Before Syed Zawwar Hussain Jafri, J

ABDUL GHANI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.575 of 2001, decided on 27th November, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497-Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Penal Code (XLV of 1860). Ss.302, 307, 324, 336, 460 & 147---West Pakistan Arms Ordinance (XX of 1965), S.13-D---Bail, grant of---Accused was nominated in F.I.R. and he armed with deadly weapons fired at deceased committed Harabah and forcibly, on show of weapons, took away cattle of complainant and thereafter he absconded---Accused, who was shown as proclaimed offender by Trial Court, was arrested after ten years when his co-accused were tried and acquitted by Trial Court---Accused did not surrender before Court of law or before acquittal order of co-accused; but remained absconded even when a compromise was arrived at between two communities---Accused was not entitled for concession of bail, in circumstances.

Baloo alias Piyar Ali v. The State 2001 PCr.LJ 372; Nasrullah and 2 others v. The State PLD 2000 Quetta 72; Ali Nawaz v. The State 1995 PCr.LJ 1316 and Zulfiqar and others v. The State and 10 others 1996 SCMR 326 ref.

Manzoor Ahmed Junejo for Applicant.

Ghulam Sarwar Korai for the State.

Date of hearing: 27th November, 2001.

2003 P Cr. L J 426

[Karachi]

Before Faiz Muhammad Qureshi, J

ABDUL SATTAR---Appellant

Versus

THE STATE and another---Respondents

Criminal Acquittal Appeal No.231 of 2000, decided on 20th August, 2001.

Criminal Procedure Code (V of 1898)--

----S. 417(2-A)---Penal Code (XLV of 1860), S.380---Qanun-e-Shahadat (10 of 1984) Art. 38---Appeal against acquittal---Prosecution had come forward with evidence against accused in shape .of extra judicial confession of accused and evidence of key maker---Extra-judicial confession of accused before police had got no evidentiary value in view of Art.38 of Qanun-e-Shahadat, 1984---Evidence in shape of extra-­judicial confession was the weakest type of evidence---Key maker was examined by Police five days after recording the statement of accused and that delay had not been explained by prosecution---No wrong was found in judgment of Trial Court whereby accused was acquitted which judgment was passed after properly considering evidence on record---Appeal against acquittal having no merits, was dismissed.

Khawaja Naveed Ahmed for Appellant.

Ghulam Ali Shaikh for Respondent No.2.

Habibur Rashid for the State.

Date of hearing: 20th August, 2001.

2003 P Cr. L J 434

[Karachi]

Before Muhammad Roshan Essani, J

Haji TALIB and 4 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.668 and Miscellaneous Application No. 1277 of 2001, decided on 25th February, 2002.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-F(vi), 337-L(i), 337-F(i), 337-A(i) & 504---Bail before arrest, confirmation of---Alleged incident appeared to be outcome of sudden flare up---Allegations-made in F.I.R. were of general nature---F.I.R. had not specified as to which of the accused had caused injury to injured, punishable under S.337-F(vi), P.P.C.---Alleged injury was not on vital part of the body and offence against accused was not punishable with death, imprisonment for life or for ten years---Accused, in circumstances, were entitled to bail---Interim bail before arrest already granted to accused, was confirmed on the same terms and conditions.

Shafi Muhammad Memon for Applicants.

Muhammad Azim Panwhar for the State.

2003 P Cr. L J 440

[Karachi]

Before Ghulam Nabi Soomro and M. Ashraf Leghari, JJ

NIGERIAN NATIONAL---Appellant

Versus

THE STATE---Respondent

Criminal T.A. No.233 of 2001, decided on 24th January, 2002.

Criminal Procedure Code (V of 1898)---

----S. 412---Control of Narcotic Substances Act (XXV of 1997), S.9--­Appreciation of evidence---Appeal for reduction of sentence---Accused, a foreign national was found carrying in his belly 58 capsules of heroin powder weighing about 956 grams and was apprehended and later was challaned for trial before Special Court---Accused pleaded guilty to the charge and was punished with R.I. for five years and fine and accused in his appeal had prayed for reduction of sentence---In view of quantity of narcotics recovered from accused and keeping in view, the fact that crime was being repeated since some years in the past, in that fashion, sentence recorded against accused was proper---Maximum punishment provided for offence committed by accused under law was R.I. for seven years and fine---In absence of any legal flaw in the judgment passed by Trial Court, appeal filed by accused for reduction of sentence was dismissed.

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

Date of hearing: 24th January, 2002.

2003 P Cr. L J 447

[Karachi]

Before Zahid Kurban Alvi, J

GHULAM NABI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-688 of 2001, decided on 7th November, 2001.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.409---Prevention of Corruption Act (II of 1947), S.5(2)---Pre-arrest bail, grant of ---F.I.R. was lodged two years after the alleged incident and such delay in lodging F.I.R. had not been explained, which on the face of it appeared to be mala fide---Possibility existed that during that period, evidence might have been tampered with or exploited by prosecution---Case against accused being that of further inquiry, bail was granted to accused.

Ali Nawaz Ghanghro for Applicant.

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

Date of hearing: 7th November, 2001.

2003 P Cr. L J 454

[Karachi]

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

GHULAM NABI‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1 of 2000, decided on 21st May, 2002.

(a) Administration of justice‑‑‑

‑‑‑‑ Criminal trial‑‑‑Illiterate and poor person involved in a criminal case was not able to afford an Advocate and remained un-represented during trial‑‑‑Duty of Trial Court in interest of justice was to come to rescue of such person who on the face of record was victimized at the hands of police and local Zamindar.

(b) 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‑‑‑Appellant was neither named in the F.I.R. nor was real offender‑‑‑Station House Officer of the police station had given explanation in challan that appellant was real offender, bus complainant at the time of lodging F.I.R. had by mistake given the name of his brother instead of the appellant‑‑‑Father's name and caste of brother of appellant as given in the challan were different from that of appellant‑‑‑Two persons having different castes could not be brothers inter se‑‑‑False implication of accused by substituting his name for real offender was very much apparent‑‑‑Police official during trial had not stated even a single word about such mistake‑‑‑False implication of appellant in case by the police official was beyond doubt‑‑‑Appellant had throughout remained un-represented as he being a poor person was not able to afford an Advocate‑‑‑Trial Court was duty bound to come to the rescue of appellant, who had been victimized at the hands of police and local Zamindar‑‑‑Trial Court had not taken trouble of going through contents of challan, otherwise, it would have clarified position from witnesses‑‑‑Trial Court had acted in an imprudent manner and proceeded to convict an innocent person without his guilt being established beyond reasonable doubt, on the basis of concocted version supported by surmises, but not substantiated by evidence‑‑‑High Court warned the trial Judge to be careful in future and refrain from deciding matters on whims of prosecution‑‑‑Conviction and sentence awarded to appellant by Trial Court was set aside and he was acquitted of the charge.

(c) Legal precept‑‑‑

‑‑‑‑ Falsehood leaves its terms.

Allah Bachayo Soomro for Appellant.

Rasheed A. Qureshi, Asstt. A.‑G., Sindh for the State.

Date of hearing: 21st May, 2002.

2003 P Cr. L J 473

[Karachi]

Before Muhammad Roshan Essani and Muhammad Mujeebullah Siddiqui, JJ

AKHTAR HASSAN ANSARI‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.310 of 2002, decided on 20th March, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑National Accountability Bureau Ordinance (XVIII of 1999), S.9‑‑‑Bail‑‑‑Allegation against accused was that he had misused his authority‑‑‑Record did not show that the accused had himself dishonestly and fraudulently in collusion with other accused derived any benefit or pecuniary advantage or allowed the others to do so by misusing his lawful authority and committed offences of corruption and corrupt practices by causing loss to public exchequer with motivation to favour any person, or made any grant, concession or caused benefit to any person or his relative as defined in S.9 of the NAB Ordinance‑‑­Prosecution could also not point out that what Rules or Office Orders were violated by the accused‑‑‑Case against accused, thus necessitated further inquiry as contemplated under S.497(2), Cr.P.C. making him entitled to concession of bail‑‑‑Accused was admitted to bail accordingly.

S. Mehmood Alam Rizvi for Applicant.

Amir Raza Naqvi, Addl. Dy. Prosecutor‑General, NAB for the State.

Date of hearing: 20th March, 2002.

2003 P Cr. L J 505

[Karachi]

Before Muhammad, Sadiq Leghari, J

ALI HAIDER alias SHAHZAD ALI ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1135 of 2002, heard on 30th August, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.379/411/472 ‑‑‑ Bail ‑‑‑ F. I. R. contained vague allegations that seals and documents were recovered from the personal search of the accused and search of the car without any clarification as to which of the articles and documents were recovered from the accused arid which from the car‑‑‑State Counsel was unable to show any direct evidence connecting the accused with the snatching of the car and managing the preparation of documents thereof‑‑‑Stolen car was allegedly recovered from the possession of accused, but the evidence was that he was available by the side of that car‑‑‑Bail was allowed to accused in circumstances.

Zakir Hussain Khaskheli for Applicant.

Habib Rasheed, State Counsel.

Date of hearing: 30th August, 2002.

2003 P Cr. L J 540

[Karachi]

Before Zahid Kurban Alvi and Muhammad Afzal Soomro, JJ

ASIF ALI ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Narcotic Bail Application No.556 of 2002, decided on 26th September, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Control of Narcotic Substances Act (XXV of 1997), S.9(c)‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4‑‑‑Bail, grant of‑‑‑From the personal search of the accused, 1 Kg. of Charas had been found as he was stopped by the police while going in a car‑‑‑From within the car police had also found 5 Kgs. of Bhang which was claimed by co‑accused as kept by him‑‑‑Accused had claimed that the raiding party were subordinates of the complainant and no effort had been made by the complainant to get independent private witnesses despite the fact that the police claimed spy information earlier given to them‑‑‑Accused was granted bail in the circumstances.

Gul Hassan Dero v. The State 2000 PCr.LJ 657 and Muhammad Saleem v. The State 2002 MLD 1123 ref.

Abdul Rasool Abbasi for Applicant.

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

2003 P Cr. L J 546

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

SAEED AHMED ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Revision Application No.S‑75 of 2002, decided on 18th December, 2002.

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

‑‑‑‑Art. 203‑DD ‑‑‑Revisional and other jurisdiction of Federal Shariat Court‑‑‑"Case decided"‑‑‑Connotation‑‑‑Phrase "case decided" includes an interlocutory order and is not restricted to the final adjudication of the whole case‑‑‑Said phrase is of very wide import to mean any set of facts juridically considered and its meaning is large enough o include a decision of any substantial question in controversy between the parties affecting their rights, even though such order is passed in the course of trial of a case.

Syed Maskin Shah v. The State 1994 MLD 190 ref.

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

‑‑‑‑Art. 203‑DD ‑‑‑Revisional jurisdiction‑‑‑Court whose order is amenable to the Revisional, jurisdiction of Federal Shariat Court envisaged by Art.203‑DD of the Constitution is "any criminal Court".

(c) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 203‑DD ‑‑‑Revisional jurisdiction of Federal Shariat Court‑‑­Revisional jurisdiction in respect of the cases decided by the Courts trying the Hudood cases lies with the Federal Shariat Court and not the High Court.

Syed Maskin Shah v. The State 1994 MLD 190; Darya Khan v. State PLD 1989 Kar. 115; 1988 PCr.LJ 680; 1988 PCr.LJ 1606; 1988 PCr.LJ 1804; 1988 PCr.LJ 2031; Khan Badshah v. The State 1986 PCr.LJ 2609; Qadeer Akhtar v. The State 1986 PCr.LJ 1334; Rahim Jan v. Ahmed Jan and others 1986 PCr.LJ 122; Nazir, Masih v. The State 1986 PCr.LJ 1224; 1985 PCr.LJ 578; 1971 SCMR 618 and Liaquat Ali v. The State PLD 1989 SC 481 ref.

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

‑‑‑‑Arts. 3 & 4‑‑‑Constitution of Pakistan (1973), Art.203‑DD‑‑­lurisdiction of Federal Shariat Court‑‑‑Scope‑‑‑No Court or Tribunal including Supreme Court and High Court could entertain a proceeding or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of Federal Shariat Court‑‑‑High Court, thus, had no revisional jurisdiction and only Federal Shariat Court had such jurisdiction under Art.203‑DD of the Constitution.

Liaquat Ali v. State PLD 1989 SC 481 ref.

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

‑‑‑‑S. 561‑A‑‑‑Constitution of Pakistan (1973), Art.203‑DD‑‑‑Prohibition Enforcement of Hadd) Order (4 of 1979), Arts. 3 & 4‑‑Quashing of proceeding‑‑‑Jurisdiction‑‑‑Federal Shariat Court has not been conferred the jurisdiction to quash the proceeding under S.561‑A, Cr.P.C.‑‑­However, jurisdiction of High Court to entertain a petition under said section has not been excluded.

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

‑‑‑‑Arts. 3/4‑‑‑Constitution of Pakistan (1973), Art.203‑DD‑‑‑Revision petition‑‑ Maintainability‑‑‑Federal Shariat Court alone had the Revisional jurisdiction in Hudood cases and High Court had no such jurisdiction‑‑‑Revision petition filed in High Court, thus, was not maintainable and the same was returned to the applicant for submission before the Federal Shariat Court, if so advised.

Syed Maskin Shah v. The State 1994 MLD 190; Darya Khan v. State PLD 1989 Kar. 115; 1988 PCr.LJ 680; 1988 PCr.LJ 1606; 1988 PCr.LJ 1804; 1988 PCr.LJ 2031; 1986 PCr.LJ 2609; Qadeer Akhtar v. The State 1986 PCr.LJ 1334; Rahim Jan v. Ahmed Jan and others 1986 PCr.LJ 122; Nazir Masih v. The State 1986 PCr.LJ 1224; 1985 PCr.LJ 578; 1971 SCMR 618 and Liaquat Ali v. The State PLD 1989 SC 481 ref.

Ghulam Muhammad Khan Durani for Applicant.

Shafqat Hussain Shaikh, State Counsel.

Date of hearing: 18th December, 2002.

2003 P Cr. L J 552

[Karachi]

Before Muhammad Moosa K. Leghari, J

DILDAR alias DILOO LEGHARI‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Bail Application No.633 of 2002, decided on 2nd December, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 497‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Bail, grant of‑‑‑F. I. R. had been lodged after a delay of about two months‑‑‑Allegation of direct firing upon the deceased vas against the co‑accused‑‑­Allegation against the present accused was that he while armed with rifle had fired upon the prosecution witnesses‑‑‑Neither anybody was injured nor empties of rifle bullets had been recovered from the place of occurrence‑‑‑Case of accused calling for further inquiry, he was granted bail.

Abdul Rasool Abbasi for Applicant.

Muhammad Azeem Panwhar for the State.

2003 P Cr. L J 562

[Karachi]

Before S. Ali Aslam Jaffari and Muhammad Afzal Soomro, JJ

HUSSAIN BAKHSH and 5 others‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Special Narcotic Bail Applications No.644 and 645 of 2002, decided on 24th October, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Control of Narcotic Substances Act (XXV of 1997), S.9(c)‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4‑‑‑Bail, grant of‑‑‑Case of accused was governed by the rule of consistency as co‑accused with a similar role under similar circumstances and in the same crime had been granted bail by the same Court‑‑­Prosecution had conceded that the case of the accused was identical to that of their co‑accused and it had no objection if bail was granted to the accused‑‑‑Accused were granted bail following the rule of consistency:

Gul Hassan Dero v. The State 2000 PCr.LJ 657 and Muhammad Saleem v. The State 2002 MLD 1123 ref.

Abdul Rasool Abbasi for Applicants.

Muhammad Ramzan Khushk for Applicants (in Criminal Bail Application No.645 of 2002).

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

2003 P Cr. L J 576

[Karachi]

Before Muhammad Afzal Soomro, J

JAVED IQBAL and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1527 of 2001, decided on 29th November, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Passports Act (XX of 1974), S.6(1)(a)(e)(f)‑‑‑Bail‑‑­Prosecution had failed to establish that the accused was, prima facie, guilty of an offence punishable with death, imprisonment for life or ten years' R.I.‑‑‑No reasonable grounds were available to believe tile accused being guilty of such an offence‑‑‑Accused were admitted to bail in circumstances.

Zara Khan v. The State 1991 PCr.LJ Note 205 at p.147;

Muhammad Younus v. The State 2001 PCr.LJ 157 and Criminal Bail Application No. 1281 of 2001 ref.

Abdul Jabbar Korai for Applicants.

S. Tariq Ali, Standing Counsel.

Date of hearing: 29th November, 2001.

2003 P Cr. L J 578

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

MUHAMMAD PUNHAL‑‑‑Applicant

Versus

Dr. ABDUL WAHID ABBASI and another‑‑‑Respondents

Criminal Revision Application No.52 of 2001, decided on 11th December, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 420/466/467/468/471‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Criminal Procedure Code (V of 1898), Ss.200, 202, 203 & 439‑‑‑Revision‑‑‑Trial Court after recording the statement of the complainant under S.200, Cr.P.C. did not record the reasons for postponing the issue of process and holding of preliminary enquiry as required under S.202, Cr.P.C.‑‑‑Trial Court had also ignored the mandatory requirement of law under S.203, Cr.P.C. of giving reasons for dismissing the complaint‑‑‑Course adopted by the Trial Court in dismissing the complaint against the accused impliedly by virtue of the impugned order being silent regarding issuance of process against him was totally unwarranted which was in flagrant violation of mandatory requirements of law‑‑‑Nothing was available on record to show that the accused had committed any cheating forgery of record, forgery of any document or used any false document as genuine and either demanded or accepted any illegal gratification‑‑‑Complainant in his statement under S. 200, Cr.P.C. had not stated even a single word regarding the commission of any such offence by the accused‑‑‑Medical Board had also opined that the Radiologist opinion given by the accused was correct‑‑‑No purpose, therefore; could be served by remanding the case to the Trial Court which would have caused harassment to the accused who was a senior doctor in the Civil Hospital‑‑‑Complainant had closed his side without examining any witness in the preliminary enquiry directed by the Trial Court and he had not prayed for direction of any further inquiry‑‑­Registration of the case against the accused or remand of the case to the Trial Court for fresh orders was not justified in circumstances‑‑‑Revision petition was dismissed accordingly.

Manzoor Ahmed v. Nisar Ahmed 1994 CLC 2443 and Allahwadayo v. Wali Muhammad 2001 PCr.LJ 914 ref.

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

‑‑‑‑S. 439‑‑‑Revisional jurisdiction‑‑‑Revisional jurisdiction conferred on High Court is a corrective jurisdiction and it should always be exercised in furtherance of justice and not in aid of abuse of law‑‑‑If any injustice is found to have been committed by the inferior Criminal Court, the Revisional Court shall exercise the discretion to remove the injustice and maintain the purpose of law‑‑‑Besides, no body should be made to suffer on account of any negligence, inefficiency or illegality on the part of a Court.

Gul Bahar Korai for Applicant.

Imdad Ali Awan for Respondent No. 1.

Abdul Sattar Soomro for Respondent No.2.

Date of hearing: 11th December, 2002.

2003 P Cr. L J 603

[Karachi]

Before Sarmad Jalal Omsani and Mushir Alam, JJ

NAZEER AHMED ‑‑‑Applicant

Versus

THE STATE and another‑‑‑Respondents

Criminal Revision Application No.132 of 2002, decided on 19th July, 2002.

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

‑‑‑‑S. 9‑‑‑Penal Code (XLV of 1860), S.193‑‑‑Crimina: Procedure Code (V of 1898), S.439‑‑‑Revision‑‑‑Expungement of remarks of Trial Court for registering a case against the Investigating Officer for initiating false prosecution‑‑‑Trial Court while granting bail to principal accused from whom 2500 grams of Charas was recovered discharged the co‑accused from whom only a sum of Rs.70 was recovered and passed the impugned order whereby the Investigating Officer was directed to be prosecuted for having unlawfully kept the said co‑accused in wrongful confinement for about eight months only on the basis of recovery of Rs.70 from him‑‑­Held, until and unless the entire matter was heard by the Trial Court, it could not be said with any degree of certainty that the said co‑accused was not involved in the case or whether he was kept under wrongful confinement by the Investigating Officer on account of any, enmity‑‑­Impugned direction of the Trial Court was consequently expunged from the record and the proceedings, if any, instituted against the applicant Investigating Officer by virtue of the said order were discharged with the direction to Trial Court that it would be free to pass an appropriate order after the conclusion of the case‑‑‑Revision petition was allowed accordingly.

Muhammad Sharif Sial for Applicant.

Habib Ahmed, A.A.‑G.

Date of hearing: 11th July, 2002.

2003 P Cr. L J 609

[Karachi]

Before Sarmad Jalal Osmany, J

SADDIQUE and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Jail Appeal No. 134 of 1998 and Criminal Appeal No.2 of 1999, decided on 13th April, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Eye‑witnesses had specifically imputed the accused to have tired the fatal shot at the deceased from his gun‑‑‑Ocular version was supported by medical evidence‑‑‑Motive of matrimonial dispute leading to the occurrence had been established on record by the prosecution‑‑‑No mala fides could be attached to the testimony of eye‑witnesses who were inmates of the house of occurrence which was worthy of credence‑‑Conviction and sentence of accused were Maintained in circumstances.

Muhammad Muslim v. Mazhar Malik 1999 SCMR 103; Jaffar Shah v. Mian Yahya Shah 1999 SCMR 20 and Dur Muhammad v. The State 1996 PCr. LJ 435 ref.

Sher Muhammad K. Shaikh for Appellants.

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

Dates of hearing: 17th and 29th October, 2001.

2003 P Cr. L J 626

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

ABDUL SHAKOOR KALOODI and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Accountability Revision No.83 of 2002, decided on 11th July, 2002.

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

‑‑‑‑Ss. 9/10, 25‑A & 32(c)(d)‑‑‑Revision petition‑‑‑Payment of loans etc. ‑‑‑Settlement of disputes‑‑‑Stay of criminal proceedings‑‑­Section 25‑A of the National Accountability Bureau Ordinance, 1999, served only a limited purpose and the rights and liabilities between Bankers and borrowers could only be determined by the Banking Courts‑‑‑Request of the accused for reference to Conciliation Committee was only made for the limited purpose of securing their release or avoiding prosecution under the NAB Ordinance and did not in any manner affect the power of the competent Banking Court to determine the rights and liabilities of the parties to the suits‑‑‑When a bona fide dispute as to the existence of liability was pending before 3 competent Court, it would not be proper to treat a party as wilful defaulter for the purpose of criminal prosecution‑‑‑If the accused had filed a suit for accounts after investigation into the offence of wilful default had commenced, it might have been possible to conclude that such proceedings were instituted only by way of attempt to forestall prosecution and no stay was justified‑‑‑­Nevertheless, suit of accused for recovery was prior in time both to the Bank's suit as well as the promulgation of the NAB Ordinance‑‑­Proceedings under the NAB Ordinance, therefore, ought to be stayed until the accused were found liable to pay any amount to the Bank and were defaulters in such payment according to the provisions of the Ordinance‑‑‑Proceedings before the Accountability Court were stayed accordingly.

Agricultural Development Bank of Pakistan v. Sanaullah Khan PLD 1988 SC 67; Muhammad Akbar v. State and another PLD 1968 SC 281; Abdul Latif v. Government of West Pakistan PLD 1962 SC 384; Asfand Yar Wali, v. Federation of Pakistan PLD 2001 SC 607; Shahida Faisal v. Federation of Pakistan PLD 2000 Lah. 508 and Syed Muhammad Ahmed v. The State 1972 SCMR 85 ref.

Abdul Hafeez Lakho for Applicants.

Muhammad Anwar Tariq, Deputy Prosecutor‑General for the State.

Dates of hearing: 19th and 21st June, 2002.

2003 P Cr. L J 643

[Karachi]

Before Wahid Bux Brohi and Rehmat Hussain Jafferi, JJ

IMAM BUX alias MAMA alias AKHTAR and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Special Anti‑Terrorism Appeals Nos.49 and 50 of 2001, decided on 2nd November. 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 392/34‑‑‑Anti‑Terrorism Act (XXVII of 1997), Ss.6(d) & 7(iii)—­Appreciation of evidence‑‑‑Ocular testimony was unanimous on each and every aspect of the case and the same was not discredited in cross-­examination‑‑‑Accused had been correctly picked up by the eye‑witnesses in the identification parade‑‑‑Vehicle snatched by the accused from the complainant had been recovered from their possession‑‑‑Eye‑witnesses were natural witnesses whose presence at the place of incident was not doubtful which was not even challenged by the accused and they hart no cause or motive to falsely implicate the accused‑‑‑Vehicle had been snatched by the accused from the complainant on pistol point by putting him under fear of instant death or instant hurt which was punishable under S.392, P.P.C. up to ten years' R.I. whereas the offence of vehicle snatching defined under S.6(d) of the Anti-­Terrorism Act, 1997, was punishable under S.17(iii) of the said Act up to seven years' R.I.‑‑‑Under the law when a matter was covered by general law as well as by special law then the provisions of special law would prevail and thus the provisions of S.7(iii) of the Anti‑Terrorism Act, 1997, would prevail over S.392, P.P.C.‑‑‑In consequence the appeal of accused was dismissed with the exception that their sentence of imprisonment was reduced from 10 years' R.I. each to 7 years' R.I. each.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 392/34‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑‑‑Appreciation of evidence‑‑ Principle‑‑‑Mere relationship between the witnesses and the victim is not enough to discard their evidence unless they have motive to falsely implicate the accused.

(c) Administration of justice‑‑‑

‑‑‑‑ General Law and Special Law‑‑‑Applicability‑‑‑Principle‑‑‑When a matter is covered by General Law as well as by Special Law then the provisions of the Special Law shall prevail over the provisions of General Law.

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

‑‑‑‑S. 13‑D‑‑‑Anti‑Terrorism Act (XXVII of 1997), Ss.6 & 17‑‑­Jurisdiction of Special Court‑‑‑Validity‑‑‑Prosecution had not led any evidence to show that the pistol secured from the possession of the accused was the same pistol which was used in the commission of the offence of vehicle‑snatching‑‑‑Offence under S.13‑D of the Arms Ordinance, 1965, therefore, was, not conjointly committed with the offence of vehicle‑snatching‑‑‑Trial conducted by the Anti‑Terrorism Court in respect of the offence punishable under S.13‑D of the Arms Ordinance, 1965, was without jurisdiction in circumstances‑‑‑Conviction and sentence of accused were consequently set aside and the case was remanded to the Trial Court for forwarding the same to the Court of Magistrate competent to try the offence.

Mrs. Salima Nasiruddin for Appellants.

Habib Ahmad, A.A.‑G. for the State.

Dates of hearing: 3rd and 22nd October, 2002.

2003 P Cr. L J 661

[Karachi]

Before Muhammad Roshan Essani and Sarmad Jalal Osmani, JJ

SHAHZAD ABID‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.3 of 2002, decided on 9th May, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(1), third and fourth provisos [as omitted by Code of Criminal Procedure (Amendment) Ordinance (LIV of 2001)]‑‑‑Penal Code (XLV of 1860), Ss.409/420/468/408/471‑‑‑Bail, grant of‑‑‑Statutory delay‑‑‑Bail application filed by accused on ground of statutory delay, was dismissed on the ground that third and fourth provisos to S.497, Cr.P.C. had been omitted by the Code of Criminal Procedure (Amendment) Ordinance, 2001‑‑‑Amended Ordinance, 2001 dealing with the enforcement of amended clause had clearly stated that the Ordinance would come into force at once which would mean that it would operate prospectively and not retrospectively‑‑‑Amending Ordinance. 2001 thus would not affect cases where applications for bail under S.497, Cr.P.C. were pending disposal at the time when the said Ordinance was promulgated‑‑‑Bail application being already pending at the time of promulgation of Amending Ordinance, could not be dismissed on ground of omission of third proviso to S.497(1), Cr.P.C. dealing with delay‑‑‑Accused was behind the bars from the date of his arrest and delay in conclusion of trial was not caused due to any act or omission on his part or any other person acting on his behalf‑‑‑Accused was entitled to grant of bail, in circumstances.

Asif Ali Zardari v. The State 1993 PCr.LJ 781 ref.

Shaukat Hayat for Applicant.

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

2003 P Cr. L J 689

[Karachi]

Before Syed Zawar Hussain Jafferi, J

MOHSIN ‑‑‑ Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.502 of 2002, decided on 12th November, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss. 302/337‑H(ii)/148/149/114‑‑‑Bail, grant of‑‑‑Accused was named in the F.I.R. and he was specifically attributed causing fire‑arm injury to the deceased‑‑‑Injuries attributed to accused though were borne out from the Medical Certificate and pistol was also recovered from him, but complainant in his statement made before Trial Court had clearly stated that police obtained his thumb­impression on the paper which was not read over to him‑‑‑Complainant lad further stated that he did not see any assailant firing at the deceased and that he had not named any accused in F.I.R. and that accused was innocent as he was not seen by him at place of incident‑‑Other prosecution witnesses had also exonerated the accused from the charge framed against the accused‑‑‑Case against accused being of further inquiry under S.497(2), Cr.P.C. he was entitled to grant of bail.

Zahid Khan v. The State 1998 PCr.LJ 2063; Fayyaz Ahmed v. The State 1997 PCr.LJ 847; Malik Amanullah v. The State 1998 PCr.LJ 914; Muhammad Ismail v. Muhammad Rafique 1989 SCMR 997; Muhammad Ismail v. Muhammad Rafique PLD 1989 SC 588 and Mehmood Ahmed and others v. The State 1995 SCMR 1247ref.

Habibullah Ghouri for Applicant.

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

Date of hearing: 12th November, 2002.

2003 P Cr. L J 709

[Karachi]

Before Rehmat Hussain Jafferi, J

HABIB‑UR‑REMAN LEGHARI ‑‑‑ Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.779 of 2002, decided on 31st December 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Pre‑arrest bail ‑‑‑F.I.R. suffered from a delay of more than one month‑‑‑Explanation furnished by the complainant for the said delay could be thrashed out at the time of trial‑‑‑Accused had been implicated in the case only on the basis of suspicion‑‑‑No post‑mortem examination of the deceased had been conducted and no visceras were sent to Chemical Examiner to find out if the deceased was poisoned or not‑‑‑Investigating Officer had not so far collected any evidence to connect the accused with the crime‑‑‑Cause of death of accused was not even ascertained‑‑‑Bail before arrest was granted to accused in circumstances.

Abdul Rasool Abbasi for Applicant.

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

2003 P Cr. L J 715

[Karachi]

Before Shabbir Ahmed and Muhammad Sadiq Laghari, JJ

NAVEED AHMED and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 125 of 1994, decided on 12th November, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 423‑‑‑Penal Code (XLV of 1860), Ss.467/478/489‑A/489‑B/489‑C/489‑D‑ ‑Issuance of suo motu notice to acquitted accused in absence of any appeal against his acquittal‑‑‑Court of appeal issued suo motu notice to accused who were acquitted by Trial Court despite no appeal was filed against their acquittal‑‑‑Validity‑‑‑When an order of acquittal was to be converted into an order of conviction, it would amount to a reversal of the order‑‑‑Where conviction under one section was altered to a conviction under the other section maintaining the sentence or reducing it or altering it, same would amount merely an alteration of finding and not a reversal of finding‑‑‑Subsection (1)(b) of S.423, Cr.P.C. was not applicable to a case where there was an express order of acquittal and no appeal from acquittal was pending before the Appellate Court‑‑‑Appellate Court in such a case had no power to reverse the finding at all‑‑‑Court could not by convicting the accused of the offence of which he had been acquitted, reverse the finding by recording it as if it was merely an alteration of the finding ‑‑‑Suo motu notice issued to acquitted accused, in circumstance, was a futile exercise and was not available to Court under S.423, Cr.P.C.

Mahi Singh v. Mangal Khanda 12 Cr.LJR 529; Ma Mya Khin v. Maurig Po Htwa AIR 1933 Rang. 288; C. Dum v. King‑Emperor AIR 1922 All. 107; Shera v. The Crown PLD 1954 FC 141; Nazir Ahmed v. The King‑Emperor II.R 1936 Lah. 629; Sundar Singh v. State of Punjab AIR 1962 SC 1211; Dr. R.V. Murthy v. State of Karnataka AIR 1982 SC 677; Krishna Singh v. King‑Emperor ILR 50 All. 722; Emperor v. Sheo Darshan Singh AIR 1922 All. 487 and Jado Rahim v. Emperor AIR 1938 Sind 202 ref.

Azizullah K. Sheikh for Appellant.

Muhammad Ilyas Khan for Acquitted Accused.

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

2003 P Cr. L J 727

[Karachi]

Before Zahid Kurban Alavi, J

GULZAR alias GULZAR AHMED ‑‑‑ Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.783 of 2002, decided on 3rd January, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.354‑A/337‑A(i)/504/34‑‑­Bail‑‑‑Case against accused, according to his counsel, did not fall under S.354‑A, P.P.C. as the victim was not exposed to public view in a naked condition and his intention being only to outrage her modesty S.354, P.P.C. was attracted in the case which was punishable with two years' R.I.‑‑‑Husband of the victim lady had received only a simple injury‑‑­Bail was allowed to accused in circumstances.

Muhammad Ajmal alias Teddy v. The State 1994 PCr.LJ 132 ref.

Abdul Rasool Abbasi for Applicant.

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

2003 P Cr. L J 738

[Karachi]

Before Syed Zawwar Hussain Jafferi, J

SAFFAR and 3 others‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.S‑710 of 2002, decided on 20th November, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), Ss.302/324/114/504/109/34‑‑­Pre‑arrest bail‑‑‑No .evidence was available on record to show that the accused were being involved in the case mala fide and falsely and that they would be humiliated or disgraced with ulterior motives of maltreatment at the instance of the complainant party‑‑‑Pre‑arrest bail was refused to accused in circumstances.

Zia‑ul‑Hassan v. The State PLD 1984 SC 192 ref.

Azizullah M. Buriro for Applicants.

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

2003 P Cr. L J 747

[Karachi]

Before Azizullah M. Memon, J

PASSAND and 3 others‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.584 of 2002, decided on 23rd December, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/337/147/148/149/ 504‑‑‑Bail‑‑‑Accused were not alleged to have caused any injury to the deceased‑‑‑No fire‑arm injury was even attributed to accused on the persons of prosecution witnesses who had allegedly given blows to the said witnesses by Lathis, backside of hatchets and butts of the guns‑‑­Investigating Officer had recorded the statements of the prosecution witnesses under S.161, Cr.P.C. after an inordinate delay of 23 days without any plausible explanation for the same‑‑‑Accused were admitted to bail in circumstances.

1996 SCMR 1125 ref.

Muhammad Hashim A. Chandio for Applicants.

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

2003 P Cr. L J 756

[Karachi]

Before Azizullah M. Memon, J

SANWAN ‑‑‑ Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.741 of 2002, decided on 23rd December, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/ 147/148/149/114/504/34‑‑ Bail‑‑‑Case was of two conflicting versions regarding the culpability of the accused who had participated in the incident and it was yet to be determined as to which of the two versions was correct‑‑­Accused was admitted to bail in circumstances.

Muhammad Jaffar v. The State 1987 PCr.LJ 1338 and Criminal Petition No.76‑K of 1978 (Criminal Appeal No. 1‑K of 1985) ref.

Muhammad Hashim Chandio for Applicant.

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

2003 P Cr. L J 762

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

THE STATE‑‑‑Appellant

Versus

AZEEM SHAKIR alias TARA and another‑‑‑Respondents

Special Anti‑Terrorism Acquittal Appeal No. 106 of 2000, decided on 31st October, 2002.

Anti‑Terrorism Act (XXVII of 1997)‑‑‑

‑‑‑‑Ss. 7(iii), 6(d), Sched., Items (1), (4) & 25(4)‑‑‑Penal Code (XLV of 1860), Ss.386/324/353/34‑‑‑Criminal Procedure Code (V of 1898), S.417(1)‑‑‑Appeal against acquittal‑‑‑Eye‑witnesses including the complainant had fully supported the prosecution case at the trial in respect of charging. "Bhatta" against the accused giving the same details of the incident as disclosed in the F.I.R.‑‑‑Ocular testimony could not be discredited in cross‑examination‑‑‑Accused had admitted his presence at the scene of incident and the receipt of injuries by him at the hands of police taking a different stand which stood falsified by the material available on record‑‑‑Trial Court had also believed the statements of eye­witnesses on the point of charging "Bhatta", but had wrongly concluded that attempt of charging "Bhatta" was not covered by S.6(d) of the Anti­Terrorism Act, 1997‑‑‑Offence of charging "Bhatta" as defined in S.6(d) of the said Act was punishable under S.7(iii) and a perusal of those provisions together with Items Nos.(1) and (4) of the schedule of offences appended to the said Act would show that the attempt of charging "Bhatta" was a scheduled offence triable by the Anti‑Terrorists Court‑‑­Accused was consequently convicted under S.7(iii) of the Anti‑Terrorism Act, 1997, for having made an attempt of charging "Bhatta" and sentenced to undergo three years' R.I. with a tine of Rs.20,000 and benefit of S.382‑B. Cr.P.C. and his acquittal by Trial Court on the said charge was set aside‑‑‑Acquittal of accused under Ss.386/324/353/34, P.P.C. was, however, maintained as the same was based on the appraisal of evidence by the Trial Court in accordance with the settled principles of criminal administration of justice‑‑‑Appeal against acquittal was partly allowed accordingly.

Habib Ahmad for the State.

Date of hearing: 15th October, 2002.

2003 P Cr. L J 775

[Karachi]

Before Anwar Zaheer Jamali, J

MUHAMMAD QASIM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.647 of 2002. decided on 3rd December, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/353/147/148/149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail---Only role assigned to accused was that he was armed with a gun---No other overt act had been attributed to accused--­Deceased constable had not received any fire-arm injuries.--Vicarious liability of accused in the case was a matter of further inquiry entitling him to the concession of bail---Accused was admitted to bail in circumstances.

1996 SCMR 1654; 1999 SCMR 1320 and 1999 SCMR 1360 ref.

Allah Bachayo Soomro for Applicant.

Anwar Ansari for A.-G. for the State.

2003 P Cr. L J 785

[Karachi]

Before Anwar Zaheer Jamali, J

MANZOOR AHMED ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.668 of 2002, decided on 17th December, 2002.

Criminal Procedure Code (V of 1898)---

----S. 498---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Penal Code (XLV of 1860), S.337­F(i)/34---Pre-arrest bail---Accused was nominated in the F.I.R. with a specific role attributed to him in the occurrence---Delay in lodging the F.I.R. had been explained---Several injuries sustained by the complainant were duly supported by the record---Nothing was available on the file to show any previous enmity of the complainant with the accused to justify allegations of his mala fides in naming the accused for the commission of the crime---Pre-arrest bail was declined to accused in circumstances.

Niaz Hussain Panhwar for Applicant.

Abdul Jabbar Khaskheli for the State.

2003 P Cr. L J 789

[Karachi]

Before Shabbir Ahmed and Muhammad Sadiq Leghari, JJ

WAQAR KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.886 of 2002. decided on 29th October, 2002

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(c)---Prohibition (Enforcement of Hadd) Order (4 of 1979). Arts.3/4---Bail---Recovery of the narcotics having been made at the pointation of the accused himself by leading the police party to the place of recovery, it was not search of the place and as such no search warrant was required to be obtained by the Police officer from the Court--­Offence relating to narcotics could be tried only under the provisions of the Control of Narcotic Substances Act, 1997; in a Court established thereunder to the exclusion of the Court established under any other law---Seizure, search, arrest and investigation by a Police Officer inferior in rank to the rank of the Police Officer as required by the said Act, is a curable irregularity and it would not affect the powers and jurisdiction of the Court to try such case---Such irregularity would not affect the instrinsic quality of the evidence and would not vitiate the trial proceedings and the results thereof---Technicalities could not be permitted to stand in the way of the object and scheme of the law--­Delay, if any, in the despatch of the stuff to the Chemical Examiner was not material when the defence had denied the recovery---Accused being in custody, delay in sending the report to the police station was not of much significance for the purpose of bail which was to be explained during the trial---Bail was declined to accused in circumstances.

State through Collector of Customs v. Nasim Amir Butt and others 2001 SCMR 1083; The State v. Muhammad Hussain HNR Rishbed and others v. State of Delhi PLD 1968 SC 265; AIR 1955 SC 196 and Tasliem Khan v. The State PLD 1990 SC 1088 ref.

(b) Criminal trial------

----Appreciation of evidence---Technicalities not to be allowed to frustrate the object and scheme of law---Object has to be achieved---If some substantial act is performed towards the achievement of the object in the way not exactly as required by the provisions, that does not become valueless.

The State v. Muhammad Hussain HNR Rishbed and others v State of Delhi PLD 1968 SC 265 and AIR 1955 SC 196 ref.

Umar Farooq Khan for Applicant.

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

2003 P Cr. L J 811

[Karachi]

Before Shabbir Ahmed and Muhammad Sadiq Leghari, JJ

KHAWAR and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.195 and 177 of 2001, heard on 23rd October, 2002.

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

----S. 9(c)---Appreciation of evidence---All three prosecution witnesses though belonged to the same organization, but they were as good witnesses as any one else, especially when no enmity between the prosecution witnesses -and the accused was proved to have been existing prior to the incident---Inconsistencies in the evidence `of the witnesses highlighted by the defence were not of much significance as such inconsistencies occurred in the oral version of prosecution witnesses recorded about 18 months after the occurrence---Question was put to the prosecution witness in cross-examination, about the colour of heroin powder available in Court to which he replied that it was light brown--­Such question itself amounted to admission of presence of heroin powder in the car at the time of examination of the witnesses --- Report a out chemical examination of the stuff was signed by officer who was ,full competent to examine said stuff and sign the report being incharge of the Laboratory---Defence did not allege specifically or claimed the stuff to be something other than the heroin---Number of Roznamcha entry about the departure of Police party from Police Station concerned, though was not given by witnesses nor entry was produced, but that omission itself would not affect the substantial, direct and supporting evidence about seizure of stuff and arrest of the accused---Six Kgs. heroin had been seized in the present case and had the case been of foisting the stuff, that could be done with small quantity---One car having also been seized from the custody of the accused, it was extremely difficult to foist car together with stuff only for the purpose of implicating the accused--­Recovery of six Kgs. heroin powder from possession of the accused having fully been established, Trial Court had rightly convicted the accused, but sentence of imprisonment of 14 years awarded to the accused by the Trial Court being too severe, same was reduced to 8 years' R.I.

(b) Oaths Act (X of 1873)---

----S. 8---Applicability of S.8 of Oaths Act, 1873---Section 8 of Oaths Act, 1873, did not relate to the depositions of the witnesses in a criminal case in ordinary course.

Amanullah Khan for Appellants.

M. Nasrullah Siddiqui for the State.

Date of hearing: 23rd October, 2002.

2003 P Cr. L J 815

[Karachi]

Before Sarmad Jalal Osmany, J

HUSSAIN alias HUSSAINI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 145 of 1999, decided on 29th January, 2003.

Penal Code (XLV of 1860)---

----Ss. 302/307/452/34---Appreciation of evidence---Incident had occurred in day time and was witnessed by at least three persons who were members of the same family---All said three eye-witnesses being inhabitants of house of the deceased were natural witnesses and they had steadfastly testified that accused had entered their house and shot dead the deceased---Testimony of said eye-witnesses remained unshaken under cross-examination and said witnesses were not inimical towards the accused---Testimony of an independent Witness who saw the accused coming out from the house of deceased with a pistol in his hand where deceased was found dead, also was not shaken in cross-examination--­Medical evidence on record had corroborated ocular account---Delay of about six hours in lodging F.I.R. had fully been explained---Conviction and sentence awarded to accused by Trial Court, were maintained, in circumstances.

Mehmood and others v. The State 1995 SCMR 127; Ghulam Nabi Shah v. The State 1969 SCMR 629; Nooran v. The State PLD 1966 (W . P.) Lah. 383; Muhammad v. The State PLD 1979 Kar. 583; Abdul Khaliq v. The State 1996 SCMR 1553; Buxal and another v. The State 1990 PCr.LJ 2001; Iftikhar Ali v. The State 1998 PCr.LJ 2022; Dilshad v. The State 1995 PCr.LJ 248; Abdul Majeed v. The State 2001 MLD 1200; The State v. Tassawar Hussain NLR 1999 SD 751 and Sher Khan v. The State 1976 PCr.LJ 68 ref.

Muhammad Farooque for Appellant.

Habibur Rasheed for the State.

Dates of hearing: 1st and 2nd October, 2002.

2003 P Cr. L J 825

[Karachi]

Before Mushir Alam, J

MAKHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application. No.291 of 2002, decided on 1st November, 2002.

Criminal Procedure Code (V of 1898)---

----S.497---Offence of, Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 11/16---Bail, grant of---Allegation against the accused was that he alongwith co-accused had abducted the daughter of the complainant--­One of the co-accused had claimed that he had married with alleged abductee and in proof of his claim had produced copies of affidavit of free Will and Nikahnama---Case had not proceeded on account of abscondence of accused and even proceedings under Ss.87 & 88, Cr.P.C. had not been commenced and trial was not likely to take place---Since no charge had been framed since the apprehension of the accused and matter was not likely to conclude in near future as Trial Court Was on leave, accused was admitted to bail, in circumstances.

Murad v. The State 1989 MLD 643; Mst. Razia Nawaz alias Razia Bano v. The State and 2 others PLD 2001 Lah. 421 and Muhammad Ali v. The State 2001 YLR 2843 ref.

Haji Abdul Majeed for Applicant, Anwar Ansari for the State.

2003 P Cr. L J 830

[Karachi]

Before Sarmad Jalal Osmany, J

GHULAM NABI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1235 of 2002, decided on 17th October, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.382/394/395/34---Bail, grant of---Further inquiry---Delay of about 16 hours in lodging F.I.R. had not been explained by prosecution though Police Station was only 1 Km. away from the place of incident---Some dispute existed between the parties over ownership of buffaloes in question---Recovery of said buffaloes was made from the road side which had cast shadow of doubt upon prosecution version---If buffaloes were stolen those would have been kept in some safe place and should not be left roaming on the road side---No identification test was carried out though all the accused were strangers to the complainant party---Case being of further inquiry, accused was admitted to bail.

Muhammad Jameel for Applicant.

Fazalur Rehman Awan for the State.

2003 P Cr. L J 837

[Karachi]

Before Ghulam Nabi Soomro, J

GHULAM SARWAR alias LALOO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-306 of 2002, decided on 14th September, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302---Bail, grant of--­Further inquiry---Only piece of evidence against the accused was his dying statement in presence of his mother before his death---Said dying statement was not mentioned in the F.I.R., but was disclosed after more than three weeks---Such disclosure in dying statement had created a scope of further enquiry as contemplated under S.497(2), Cr.P.C.---Accused was entitled to grant of bail in circumstances.

1998 SCMR 526; 1997 SCMR 462 and 1998 SCMR 1578 ref.

Manzoor Ahmed Junejo for Applicant.

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

2003 P Cr. L J 844

[Karachi]

Before Muhammad Roshan Essani, J

KHALID JAVED---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Application No.292 of 2002, decided on 14th October, 2002.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 516-A---Penal Code (XLV of 1860), Ss.406/420/ 506-B---Petition against rejection of application for custody of vehicle in dispute---Application for custody of car in question was rejected by Trial Court on ground that as both the parties were claiming to be real owners of car in question it was difficult for the Trial Court to determine as to who was its real owner---Trial Court found that as dispute was between both the parties was with regard to entitlement/ownership of car in question, parties .should approach the Civil Court to decide ownership of car in question on basis of evidence produced by the parties---Appellate Court upheld order of Trial Court---Validity---Both parties were claiming ownership of vehicle in question---Dispute being with regard to entitlement of vehicle in question, entitlement/ownership could only be established by adducing evidence before proper forum provided under law---.Concurrent orders passed by two Courts not suffering from any illegality or material irregularity, could not be interfered with by High Court.

Adnan-Ahmed for Applicant.

Javed Akhtar for A.-G. for the State.

2003 P Cr. L J 855

[Karachi]

Before Zahid Kurban Alvi, J

SUFIAN SHAIKHANI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 1109 of 2002, decided on 24th September, 2002.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324---Bail, grant of--­Medical grounds---Case of counter-version---Enough material had been placed on record to show that accused was suffering from cardiac problem and had got other serious medical problems---Documents brought on record with regard to illness of the accused had been signed by top Surgeons and Doctors of a renowned Hospital of the city and other medical institutions---Credence could be given to said documents whilst deciding case of the accused for grant of bail---Besides the medical ground, the accused was also entitled to concession of bail on ground of counter version---Concept behind granting concession of bail to the accused despite prohibition under S.497, Cr.P.C., was that if accused was able to show to the Court that more than one version of the incident was available, then a doubt would be created as to whether prima facie a case existed against the accused or not---Three F.I.Rs. had been lodged in the present case and same incident had been shown in three different versions which would, in circumstances, necessitate recording of evidence before it could be decided whether the accused was guilty or not---Bail was granted to the accused.

Sirajuddin v. Raisuddin and another 1980 PCr.LJ 1066; Abdul Aziz v. Bashir Ahmad and another PLD 1966 SC 658; Rai Attaullah Khan v. Raja Anar Khan 1979 SCMR 471; Muhammad Ashraf Khan v. The State 1990 PCr.LJ 169; Abdul Hameed v. The State 1992 MLD 414; Mian Muhammad Aslam Goraya and others v. The State 1977 PCr.LJ 394; Malik Muhammad Yousafullah Khan v. The State PLD 1995 SC 58; Muhammad Sachal v. The State 1998 PCr.LJ 1597; Abbas v. The State 2000 SCMR 212; Zakhim Khan Masood v. Special Judge, Central, Rawalpindi and 3 others 1998 SCMR 1065; Fazal Muhammad v. Ali Ahmad and 3 others 1976 SCMR 391; Shoaib Mehmood Butt v. Iftikhar­ul-Haq and 3 others 1996 SCMR 1845; Muhammad Aslam and another v. The State 1997 SCMR 251 and Zafar Iqbal v. The State 1999 PCr.LJ 1840 ref.

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

----S. 497---Concept behind grant of concession of bail---Concept behind granting concession of bail, in spite of prohibition under 5.497, Cr.P.C., \vas that if the accused was able to show to the Court that more than one version of the incident was available then a doubt would be created as to whether prima facie a case existed against the accused or not.

Muhammad Saleem Samo and Waseem Sarno for Applicant

Khawaja Naveed Ahmed for the Complainant.

A.A.-G. for the State.

2003 P Cr. L J 862

[Karachi]

Before Zahid Kurban Alvi, J

SHAM MUHAMMAD and 8 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.737 of 2002, decided on 8th January, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860) Ss.324/337-A(i)/337-F(i)/504/ 148/149---Bail, grant of---Where a large crowd collectively participated in a fight and all types of methods were used to inflict injuries and specially when such fight occurred in the middle of the village, it would be difficult to establish the actual person who inflicted the injuries---Such was situation in case of the accused---Delay in recording of the F.I.R., all prosecution witnesses were members of the same family and a counter complaint was also registered by one of the accused who had received injuries in the same incident---Fake implication of accused in case could not be ruled out and it was yet to be determined at the trial as to which party was the aggressor---Concession of bail was extended to the accused, in circumstances.

Muhammad Ayaz Soomro for Applicants.

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

2003 P Cr. L J 865

[Karachi]

Before Shabbir Ahmed and Azizullah M. Memon, JJ

Mian MUHAMMAD ARSHAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeals No. 111 and Criminal Jail Appeal 129 of 2001, decided on 20th November, 2002.

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

----S. 9(c)---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4---Appreciation of evidence---Evidence of prosecution witnesses was contradictory and discrepant---One of the prosecution witnesses was a stock witness who had been appearing in cases of Excise Police as a prosecution witness prior to the present case---Appearance of said witness at the place of occurrence was doubtful---Two other prosecution witnesses had contradicted each other on the manner in which incident had taken place on material point i,e. in respect of Nakabandi--­Contradiction also existed in statements of prosecution witness and Investigating Officer with regard to place of occurrence---Investigating Officer had stated that Mashir was present at Nakabandi whereas according to Mashir he reached at Wardat noticing the crowd and found the accused in the custody of two constables---Such contradictions particularly with regard to the place of incident, had made the prosecution case highly doubtful---Nothing was on record to suggest that the prosecution had proved the conscious possession of the accused in respect of alleged contraband narcotics---No doubt huge quantity of contraband narcotics was allegedly recovered, but that factum alone could not be made basis for conviction of the accused---In absence of satisfactory basis for upholding conviction and sentence of the accused awarded to him by Trial Court, he was acquitted of the charge and was released.

Sakindar v. The State PLD 1963 SC 17; Abdul Hameed v. The State NLR 1986 SD 144; Ashiq Hussain v. The State 1975 PCr.LJ 675, Muhammad Yousuf v. The State 1994 PCr.LJ 2518; Hamza v. The State 2000 PCr.LJ 1760; Ali Hasan v. The State PLD 2001 Kar. 639; Mushtaq v. The State 2002 PCr.LJ 1312; Ejaz Khan v. The State 2001 YLR 2039; Tariq Pervez v. The State 1995 SCMR 1345; Mushtaq . Ahmed v. The State ELD 1996 SC 574 and State v. Bashir PLD 1997 SC 408 ref.

Sarfraz Ahmed Tanoli for Appellant.

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

Date of hearing: 2nd October, 2002.

2003 P Cr. L J 884

[Karachi]

Before Atta-ur-Rehman, J

Qari NAZEER and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application. No.1600 of 2002, decided on 27th December, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16---Bail, grant of---Further inquiry---Medical report in respect of victim did not show any mark of violence on her person to assume that she was in fact, subjected to sexual intercourse by the accused forcibly ---was yet to be determined at trial whether accused had committed the offence as alleged by the prosecution---Case of further inquiry having been made out against the accused, they were entitled to bail.

S. Farid Alam for Applicants.

Habibur Rasheed for the State.

Muhammad Jamil for the Complainant.

2003 P Cr. L J 890

[Karachi]

Before Muhammad Roshan Essani, J

MUHAMMAD SIDDIQ AWAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 1309 of 2002, decided on 11th November, 2002.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.468/4671471/448/454/506-B---Pre-arrest bail, grant of---Grounds for grant of bail before arrest were .quite different from grounds for -bail after arrest---Accused, in the case of bail before arrest, had to show mala fides on the part of complainant party---Nothing had been placed on record from which it could be deduced that case against the accused was an outcome of enmity of complainant or any prosecution witness was biased against the accused---Merely because the offence was not punishable with death, imprisonment for life or 10 years' imprisonment, was no ground for grant of pre-arrest bail in each and every case---Reasonable grounds were available to believe that the accused was prima facie guilty of offence---Application for bail before arrest stood dismissed, in circumstances.

Adnan Ahmed for Applicant.

Qazi Wali Muhammad for the State.

2003 P Cr. L J 897

[Karachi]

Before Muhammad Sadiq Laghari, J

SHER MUHAMMAD and another---Applicants

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.83 of 2002, decided on 7th March, 2003.

Criminal Procedure Code (V of 1898)---

------S. 561-A---Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.4---Quashing of proceedings---Residence of the accused was raided basis of information that one lady was available there for commission Zina, but after raid and investigation it was proved that lady present with the accused in his house was his own wife---Only allegation left according to prosecution case was that couple was drunk and also had liquor in their possession, but in a result of medical examination none of them was found to have taken liquor---Stuff which prosecution claimed to alcohol was not found to be so---Taking of swabs of lady who happened to be wife of the accused, was absolutely unnecessary as she could never be charged for Zina with her own husband---Possibility of conviction of couple in presence of two negative reports, could safely be excluded---Proceedings challenged by accused, were liable to be quashed.

Moula Bux Khoso for Applicants.

Riazuddin Siddiqui for the State.

Date of hearing: 7th March, 2003.

2003 P Cr. L J 902

[Karachi]

Before Muhammad Sadiq Laghari, J

SHER MUHAMMAD and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.111 and Criminal Jail Appeal No. 117 of 2000, decided on 3rd March, 2003.

Penal Code (XLV of 1860)---

----Ss. 302/337-F/34---Appreciation of evidence---All the four eye­witnesses including two injured were the natural witnesses of the incident, being residents of the house within same enclosure by the side whereof the incident happened---Accused had not denied their presence at the time of incident and they also could not deny the presence of injured witnesses---All four witnesses were cross-examined at length, but nothing was extracted which could render their substantial evidence on the question of injuries received by the deceased and two of them, unbelievable and doubtful---Evidence on prosecution side had proved participation of both the accused in the incident and causing of hatchet injuries to deceased and prosecution witnesses---Both parties anticipated the fight and were not only prepared for that, but were determined to have a trial of strength---Accused were the provoking party---When two parties met each other, the encounter took place---Such type of incidents were always a free fight and each participant was responsible for his own individual act and parties could not claim right of self-defence against each other---Accused, in circumstances, had rightly been convicted under 5.302, P.P.C. for murder of deceased and sentence of imprisonment for life awarded to him was maintained but his conviction and sentence under S.337-F(ii), P.P.C. for injuries to prosecution witnesses, were set aside and he was acquitted of that charge---Co-accused having proved to have caused injuries to prosecution witnesses, his conviction and sentence under S.337-F(ii), P.P.C. were maintained, but sentence awarded to him for offence under S.302, P.P.C., was set aside and he was acquitted of the charge of murder of the deceased.

Aijaz Ahmed alias Gandhi and another v. The State 1999 PCr.LJ 439; Sardar Khan v. The State 1987 PCr.LJ 2164 and Ahmed Ali and 2 others v. The State PLD 1986 Lah. 154 ref.

Muhammad Ishaque Khoso for Appellants.

Anwar H. Ansari for the State.

Date of hearing: 21st January, 2003.

2003 P Cr. L J 923

[Karachi]

Before Wahid Bux Brohi and Rehmat Hussain Jafferi, JJ

ATA-UR-REHMAN---Appellant

Versus

THE STATE---Respondent

Special A.T.A. Criminal Appeals Nos.66 and 67 of 2001, decided on 30th October, 2002.

Penal Code (XLV of 1860)---

----Ss. 353/394/34---Surrender of Illicit Arms Act (XXI of 1991), S.7--­West Pakistan Arms Ordinance (XX of 1965), S.13-D --- Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Appreciation of evidence---Complainant who was examined on point of snatching of his motorcycle did not state anything with regard to exchange of fire-arm shots between Police and the accused as complainant did not follow the accused, but remained at the place where information of the incident was narrated to the Police--­Evidence of complainant, in circumstances, was immaterial with regard to recovery of pistol from possession of the accused---Ocular testimony was in conflict with medical evidence---Statement of Doctor made by him on Oath with regard to bringing of the injured accused in the hospital, was accepted despite there was no clarification in examination-in-chief or re-examination about time mentioned by Doctor--No explanation was forthcoming from the side of prosecution as to where remained the ­accused in between alleged incident and their production before Medical Officer---Case of prosecution was that the accused were on their motor­cycles when Police Officials were chasing them on their motorcycles; as both accused were driving their motorcycles in high speed when they were being chased by Police, it was highly improbable rather difficult for the accused to fire from their pistols on Police party from motorcycle running at such high speed---Prosecution had failed to explain discrepancies in evidence---Case of prosecution being highly doubtful, benefit of doubt was to be given to the accused---Conviction and sentence awarded to the accused by the Trial Court, were set aside, in circumstances.

Sarfraz Khan Tanoli and Mehmood A. Qureshi for Appellants.

Habib Ahmad for the State.

Date of hearing: 18th September, 2002.

2003 P Cr. L J 933

[Karachi]

Before Muhammad Ashraf Laghari, J

DOSOO --- Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 1363 of 2002, decided on 6th January, 2003.

Criminal Procedure Code (V of 1898)---

----Ss. 87, 88 & 497---Bail, grant of---Accused on an earlier occasion was granted bail on merits and he was released on bail but he jumped the bail and remained absconder, subsequently he appeared before the Court and he was remanded to custody and action was taken against the accused and his surety---Accused after his remand was in jail for the last about eight months---Accused having sufficiently been punished, he was released on bail in the interest of justice.

Nooruddin Sarki for Applicant.

Habibur Rashid, State Counsel.

2003 P Cr. L J 938

[Karachi]

Before Ghulam Nabi Soomro, J

ALI MUHAMMAD and 3 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.423 of 2002, decided on 19th September, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497--Penal Code (XLV of 1860), S.324---West Pakistan Arms Ordinance (XX of 1965), S.13-D---Bail---Parties had statedly shifted from their village to an unknown place and most of their members had gone underground--Absconding accused were not likely to be arrested in near future and prosecution had an apprehension that the accused if allowed bail would also go away and join the team of the absconders--­Offences with which the accused were charged fell within the prohibition contained in S.497(1), Cr.P.C.---Crime was likely to be repeated -if the accused were admitted to bail---Bail was declined to accused in circumstances.

Manzoor Ahmed Junejo for Applicants.

Maqbool Ahmed Awan for the Complainant.

Nidamuddin Brohi for the State.

2003 P Cr. L J 949

[Karachi]

Before Anwar Zahir Jamali and Mushir Alam JJ

Mst. SHER BANO---Petitioner

Versus

GOVERNMENT OF SINDH and others---Respondents

Constitutional Petition No.D-2483 of 2001, decided on 19th August, 2002.

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

----S. 497(5)---Penal Code (XLV of 1860), S.302---Bail, cancellation of---Order granting bail to the accused had been sought to be recalled on ground that order had been obtained by suppression and misstatement of material facts---Prosecution stated that sufficient material was available with the prosecution to connect the accused with commission of crime--­Order granting bail was modified to the effect that bail granted to the accused would be considered as protective bail to the accused up to the specified date where-after it would cease to have force and in the meantime accused could approach the Trial Court for grant of bail---If an application for grant of bail was moved before Trial Court, the same would be decided strictly on merits.

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

----Art. 199---Jurisdiction of High Court---Scope---Jurisdiction of High Court-under Art.199 of the Constitution could not be exercised in aid of injustice or to distract some proceedings pending before a Court of law.

Nemo for Petitioner.

Jawaid Haider Kazmi for, the Complainant.

Sarwar Khan, Addl. A.-G., Sindh.

2003 P Cr. L J 957

[Karachi]

Before Azizullah M. Memon, J

YOUNUS RANGWALA --- Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 1148 of 2002, decided on 16th September, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16---Bail, grant of---Unexplained delay of 14 days was in lodging F. I. R.---Alleged abductee had not made any allegation of Zina against accused and she had returned to the house of complainant on her own accord---Alleged abductee was said to have been taken to various places, but nobody was named as a witness of the occurrence--­Accused was in judicial custody for almost three months and was no more required by the Police---Accused was admitted to bail, in circumstances.

2002 PCr.LJ 12 and 1994 PCr.LJ 914 ref.

Syed Jawaid Haider Kazmi for Applicant.

Fazal-ur-Rehman Awan for the State.

2003 P Cr. L J 964

[Karachi]

Before Gulzar Ahmad, J

GULFIROSH ABBASI and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.1183 of 2002, decided on 1st October, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497(1), first proviso (2)---Penal Code (XLV of 1860), S.380--­Juvenile Justice System Ordinance (XXII of 2000), S.10(7)(c)---Bail, grant of---Further inquiry---Accused were less than 18 years of age and they were in continuous custody for more than four months and the trial of the case had not concluded---Contents of F.I.R. did not disclose that offence alleged against accused was serious, heinous or gruesome---Case being of further inquiry and that of a statutory concession as provided under S.10(7)(c) of Juvenile Justice System Ordinance, 2000, accused were admitted to bail, in circumstances.

Mansoor Ahmed v. The State 2002 PCr. LJ 657 and Afsar Zameen v. The State PLD 2002 Kar. 18 ref.

Mehmood A. Qureshi for Applicant

Khadim Hussain for the State.

2003 P Cr. L J 974

[Karachi]

Before Zahid Kurban Alvi, J

ALI ANWAR ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-468 of 2002, decided on 8th November, 2002.

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 103---Penal Code (XLV of 1860), Ss. 402/148/149--­Bail, grant of---Further inquiry---Six persons were allegedly found duly armed with deadly weapons, but only two including the accused were apprehended by the Police---No overt act was attributed to any of the accused---Offence under S.402, P.P.C. being punishable up to seven years' R.I., case against accused did not come under prohibitory clause of S.497, Cr.P.C.---Police which had prior information, was in a position to comply with provisions of S.103, Cr.P.C. which was overlooked---Case against the accused being of further inquiry, he was admitted to bail.

Mushtaq Ahmad Kourejo for Applicant.

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

2003 P Cr. L J 980

[Karachi]

Before Sarmad Jalal Osmany, J

ALI GUL---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 1576 of 2002, decided on 13th January, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.365/34---Bail, grant of--­Case against accused was of further inquiry as complaint had been lodged after an unexplained delay of nine months---Complainant himself changed his story in his Police statement---Bail was granted to the accused, in circumstances.

Shahadat Awan for Applicant.

Fazlur Rehman for the State.

2003 P Cr. L J 1229

[Karachi]

Before Sarmad Jalal Osmany and Ghulam Nabi Soomro, JJ

AHMAD SAEED alias SAEED BHARAM and others---Appellants

Versus

THE STATE---Respondent

A.T.C. Appeals Nos.114 to 116 of 1999, decided on 17th February, 2003.

Penal Code (XLV of 1860)---

----S. 302---Criminal Procedure Code (V of 1898), Ss. 164 & 510---West Pakistan Arms Ordinance (XX of 1965), S.13-D---Appreciation of evidence---Confessional statements of accused though had been made in accordance with law, but same had been retracted---As a matter of abundant caution and prudence said statements were not to be acted upon unless corroborated through same other reliable and cogent evidence-­Prosecution witnesses who after the incident, went away to another city due to fear, had only surfaced one and half years thereafter when their statements were recorded under S.164, Cr.P.C.---Only explanation given for said delay was that they were frightened and decided to return to their village as they did not want to act as witnesses to crime in question---Such was an insufficient explanation for delay and their eye­witness account could not be accepted---Such doubt could be satisfied by other corroborative material---Identification test held about one and half years after occurrence, could not be accepted as positive identification of accused by eye-witnesses---Unexplained delay of three to six months in sending weapon recovered from accused and empties recovered from place of occurrence for ballistic test had raised some doubt as to whether those were same weapons which were seized from accused---Ballistic report, in circumstances, could not be taken into consideration as positive corroborative material---Prosecution, in circumstances, having failed to prove case against accused beyond reasonable doubt, accused stood acquitted in that case---Conviction of accused in offence under S.13-D of West Pakistan Arms Ordinance, 1965, however was recorded by Trial Court on basis of recovery of weapons in question which was witnessed by two independent witnesses---Testimony of complainant with regard to recovery of weapon from accused had gone un-rebutted---Evidence adduced by prosecution having clearly established guilt of accused under S.13-D of West Pakistan Arms Ordinance, 1965, accused were rightly convicted and sentenced in that case.

Ghulam Rasool v. The State 1988 SCMR 557; Mehmood Ahmed v. The State 1995 SCMR 127; Muhammad Khan v. Moula Bukhsh 1998 SCMR 521; Daniel Boyd v. The State 1992 SCMR 196; Wazir v. The State PLD 1960 (W.P.) Kar. 674; Allahando v. The State 1969,SCMR 714; Khan Muhammad v. The State 1999 SCMR 1818; Muhammad Gul v. The State 1991 SCMR 942; Nabi Bakhsh v. The State 1999 SCMR 1972; Fazal Mahmood v. The State 1999 SCMR 2040; Haq Nawaz v. The State 2000 SCMR 785; Ahmad Hassan v. The State 2001 SCMR 505; Pinyo v. The State 1975 PCr.LJ 1304; Abdul Khaliq v. The State 1996 SCMR 1553; Solat Ali Khan v. State Criminal Appeal No.366 of 2000; Mst. Naseem Akhtar v. State 1999 SCMR 1744; Muhammad Yaqoob v. The State 1992 SCMR 1983; Naseem Akhtar v. The State 1999 SCMR 1744; Muhammad Khan v. Moula Bux 1998 SCMR 570; Mahmood Ahmad v. The State 1995 SCMR 147 and Sajid Ahmad v. The State 1992 SCMR 408 ref.

Azizullah K. Shaikh for Appellants.

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

Dates of hearing: 27th February; 6th to 8th, 18th March; 18th, 23rd, 30th April; 2nd, 3rd, 6th, 13, 20th and 27th May, 2002.

2003 P Cr. L J 1242

[Karachi]

Before Rehmat Ali Jafferi, J

ABDUL NABI and another---Petitioners

Versus

Syed MUKHTAR and another---Respondents

Criminal Miscellaneous Application No.S-64 of 2002, decided on 27th January, 2003.

Criminal Procedure Code (V of 1898)---

---Ss. 195(1)(a)(b) & 561-A---Penal Code (XLV of 1860), Ss. 199 & 200---Quashing of proceedings---Application for---Direct complaint against applicants on allegation that applicants had sworn false affidavits---Court issued process against the applicants for an offence punishable under Ss.199 & 200 P.P.C.---Under mandatory provisions of S.195(1)(a)(b), Cr.P.C., in offences punishable under Ss.199 & 200, P.P.C., no cognizance could be taken by any Court except upon complaint in writing of such Court where said offences were committed or some other Courts to which such Court was subordinate---Private person had no authority to file a complaint in view of provisions of S.195(1)(a)(b), Cr.P.C.---Court to which private complaint was filed having no jurisdiction to take cognizance on such complaint, proceedings before said Court being abuse of process of Court, same were quashed, in circumstances.

Noor Muhammad v. The State PLD 2002 Lah. 183; Haji Muhammad Aslam v. Inspector-General PLD 2001 Lah. 84; Ali Ahmad v. The State 1984 PCr.LJ 772 and Mansab Ali v. The State PLD 1971 SC 124 ref.

Altaf Hussain Surahiyo "for Appellants.

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

Date of hearing; 27th January, 2003.

2003 P Cr. L J 1247

[Karachi]

Before S.A. Rabbani, J

MUHAMMAD TANVEER ALI ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.65 of 2001, decided on 25th January, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 380/454---Bail, grant of--­Person named in F.I.R. as a witness, had not been mentioned in charge-sheet by Investigating Officer---Stolen property having been recovered and employment of accused could be considered as a circumstances to ensure that there was no probability of his abscondence---Accused was admitted to bail, in circumstances.

Luqman-ul-Haque for Applicant.

Habibur Rashid for the State.

Date of hearing: 25th January, 2001.

2003 P Cr. L J 1250

[Karachi]

Before Shabbir Ahmed and Muhammad Sadiq Leghari, JJ

MEHBOOBUR REHMAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail No. 1358 of 2002, decided on 7th November, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.6/9/12/13 & 15---Bail, grant of---Accused earlier was granted bail and since then he was attending hearing and remained on bail for about four and half years, but thereafter bail granted to accused was cancelled solely on ground that accused would jump bail without giving any cogent reasons in that respect---Validity---Bail could neither be withheld nor cancelled as punishment---Accused having not absented himself during period of his bail for about four and half years, withholding of concession of bail enjoyed by accused for such a long period, was unwarranted---Accused was admitted to bail, in circumstances.

Tariq Bashir v. The State PLD 1995 SC 34; Syed Azmatullah v The State PLD 1996 SC 241; Government of Sindh v Raeesa Farooq Abdul Malik v. The State PLD 1968 SC 349; The State v. Hussain PLD 2002 Kar. 1 and Amanullah Shah v. The State PLD 1996 SC 241 ref.

Rasheed A. Rizvi for Applicant.

Shoib Ashraf, Special Prosecutor, A.N.F. for the State.

Date of hearing: 7th November, 2002.

2003 P Cr. L J 1282

[Karachi]

Before Rehmat Hussain Jafferi, J

ALLAH BUX---Petitioner

Versus

S.H.O., POLICE STATION DRIGH and others---Respondents

Constitutional Petition No.S-11 of 2003, decided on 27th February, 2003.

Criminal Procedure Code (V of 1898)---

----Ss. 61, 154, 156, 157, 159, 167 & 173---Penal Code (XLV of 1860), S.324/34---Constitution of Pakistan (1973), Art.199---Constitutional petition---Investigation of case---Petitioner/complainant filed F.I.R. against some accused persons, but police officers concerned failed to complete investigation and submit the challan of the case within 15 days as required by law---Petitioner had prayed for giving direction to the police officers concerned to conclude investigation and submit challan before the Court of law---Validity---Every investigation was to be completed without unnecessary delay and as soon as it was completed, Officer Incharge of police station was required to submit challan through Public Prosecutor, but not later than 14 days---If investigation was not completed within stipulated period of 14 days from date of recording of F.I.R., then Officer Incharge of Police Station, within three days of expiration of such period, forward to Magistrate through Public Prosecutor an interim report stating therein the result of investigation made till then and Court would commence the trial on the basis of such interim report, unless for reasons to be recorded, Court decided that trial should not so commence---Direction of law, in circumstances, that police was required to complete investigation within 24 hours as required under S.61, Cr.P.C. read with S.167, Cr.P.C. or within 14 days from date of registration of F.I.R. and after completing investigation, submit challan in Court as required under S.173, Cr.P.C.---Magistrate could grant further time to police on application of Police showing reasons for grant of further period to complete investigation and such further time could be granted by Magistrate on cogent grounds with direction to police to complete investigation within said period---Investigation should be completed within time fixed by law and should not be left at the mercy of police to their own sweet will to complete the same---If police failed to discharge their duties, then Magistrate should check police and compel it to submit challan or interim challan so that case should proceed expeditiously---Adequate remedy by approaching Magistrate being available to petitioner/complainant, Constitutional petition was not maintainable.

Akhshoy Kumar v. Jogesh Chandra AIR 1956 Cal. 76; AIR 1959 Assam 231; Munawar Khan v. Muhammad Ishaque PLD 1975 Lah. 577; Munir Ahmed v. State 1990 PCr.LJ 1547; Mumtaz Ahmed v. State PLD 2002 SC 590 and Mazhar Hussain v. Ishtiaq Hussain and another PLD 1990 Lah. 249 ref.

Sarfraz Khan Jatoi for Petitioner.

Muhammad Bachal Tonyo, Addl. A.-G.

Date of hearing: 15th January, 2003.

2003 P Cr. L J 1340

[Karachi]

Before Shabbir Ahmed, J

AYAZ AHMED ---Applicant

Versus

THE STATE---Respondent

Special Criminal Bail No.28 of 2002, decided on 29th August, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497---Customs Act (IV of 1969), Ss.2(s), 16, 32(1)(2), 78 & 156(1)(8)(14)(77)---Bail, grant of---Allegation against accused was that he attempted to smuggle 'Black Kenya Tea' by misdeclaring its description, value, weight and classification under guise of import of 'raw wool"---In order to be "smuggled goods" the goods had to fall in one of the categories listed in sub-clauses (i) & (ii) of S.2(s) of Customs Act, 1969---To contend that imported cargo of "Black Tea" was a smuggled item, same had to be found notified item in a notification issued by Federal Government for purpose of later part of cl.(ii) of S.2(s) of Customs Act, 1969 to attract penal consequences of S.156(1)(8) of Customs Act, 1969---In absence of said notification, act of accused was short of 'smuggling' and penal consequences of S.156(8) of Customs Act, 1969 would not be attracted and offence of accused at the most would fall under cls.(9), (14), (77) of S.156 of Customs Act, 1969 which was not punishable with imprisonment exceeding throe years and fine--­Accused was entitled for concession of bail.

Muhammad Bashir v. The State 1978 PCr.LJ 837 fol.

Muhammad Anwar Tariq for Applicant.

S. Tariq Ali, Federal Counsel for the State.

Date of hearing: 23rd August, 2002.

2003 P Cr. L J 1353

[Karachi]

Before Wahid Bux Brohi and Rehmat Hussain Jafferi, JJ

Agha WAZIR ABBAS and others---Appellants

Versus

THE STATE---Respondent

Criminal Acquittal Appeals Nos.31 and 32 of 2002, decided on 8th February, 2003.

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

----Ss. 9 & 10---Appreciation of evidence---Allegation against one of- the accused persons was that he, serving as Assistant Excise and Taxation Officer, had prepared a false and forged Import Permit by putting his signature over it and by said act of forgery he had caused loss to public exchequer---Allegation against other accused was that being Manager of a company he had sent forged eleven Transport Permits and by so doing had caused huge loss to public exchequer---Cases against accused persons were based upon. documentary and oral evidence---Import Permit and Transport Permits though had been proved to be false documents, but prosecution had failed to prove that said documents were signed by the accused---Prosecution witnesses, who were examined to prove signatures of accused on alleged documents, had admitted that accused had not signed said documents in their presence and that they were not Handwriting Expert---Prosecution had also failed to prove that co-accused was working as Manager of Company at the relevant time who allegedly had sent eleven Transport Permits--­Prosecution having failed to prove case against accused persons by oral as well as by documentary evidence, they were acquitted of the charge.

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

----Arts. 59, 61, 78, 79 & 84---Methods for proving signatures or handwriting of a person---Five methods for proving a signature or handwriting of a person were: (i) by admission or examining the person who had signed document; (ii) by examining the person before whom the alleged document was signed; (iii) by referring disputed document and specimen signatures of the person or admitted signatures to the Handwriting Expert for his opinions; (iv) by examining the person who was conversant with the signatures; and (v) by comparison of signatures on disputed document and on admitted document by Court.

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

----Art. 71---Oral evidence---Incumbent upon a witness that when he entered into a witness-box before stating any fact he must say that either he saw that fact or he heard it from some one about said fact, and then he would give evidence so that Court could assess evidence of said witnesses and form an opinion as to the category in which the witness fell---Without proving the facts that the witness had either seen or heard the fact, his further statement could not be judged properly---Witness without first disclosing his source of information, was not legally competent to depose the fact as it was hit by Art.71 of Qanun-e-­Shahadat, 1984.

M. Ilyas Khan for Appellant (in Appeal No.31 of 2002).

Raza Hashmi for Appellant (in Appeal No.32 of 2002).

Nisar Ahmed Tarar, A.D.G.P. for the State.

Dates of hearing: 4th and 11th December, 2002.

2003 P Cr. L J 1416

[Karachi]

Before S. Zawwar Hussain Jaffri, J

ANWAR and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.270 and 271 of 2003, decided on 29th May, 2003.

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

----S. 497---Penal Code (XLV of 1860), Ss.354-A/338-F(i)/147/148/149/109---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18---Bail, grant of---Bail applications earlier filed by accused in the High Court were not pressed by accused on merits and High Court directed the Trial Court to examine complainant and two prosecution witnesses within specified period, but Trial Court could not comply with said direction of the High Court---Accused persons were in continuous custody for more than two and half years and they were not responsible for delaying the trial---Freedom of individual being a precious right, accused persons could not be detained for indefinite period ---F.I.R. was lodged with delay of 15 days---Trial Court had delayed disposal of case and accused were in custody for more than two and half years---Accused persons having made out a case for grant of bail, they were granted bail.

1997 SCMR 207; Muhammad Sadiq v. Muhammad Shafi and another 1973 SCMR 212; Sher Zaman v. Muhammad Azad and another 1978 SCMR 248; Manzoor Khan v. Kamir and 4 others 1972 SCMR 207; 1994 PCr.LJ 12; Ashok v. The State 1997 SCMR 436 ref.

Ali Nawaz Dehraj for Applicants.

Behram Khan Ujjan (absent) for the Complainant.

Ghulam Rasool Rind for the State.

2003 P Cr. L J 1429

[Karachi]

Before Wahid Bux Brohi, J

ABDUL RAUF---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 111 of 2003, decided on 25th March, 2003.

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

----S. 497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail, grant of---Earlier accused was granted bail by Court of competent jurisdiction. but subsequently accused, having remained absent without intimation, on date of hearing, Trial Court ordered issuance of non-bailable warrants for his arrest and also notice to his surety---Accused appeared voluntarily before Court and he was taken into custody as his bail had already been cancelled--­Validity---Bail earlier granted to accused was cancelled without notice to the accused under provisions of S.497(5), Cr. P. C, ---Case, in circumstances, at the most was of an accused remaining absent without intimation, which could immediately warrant forfeiture of his bond and also of his surety---In that event, unless bail was cancelled after issuing notice to the accused, immediate course would be that he should be asked to furnish fresh surety---Requirement of notice could not be dispensed with as a matter of routine---Accused was allowed to remain on bail, as earlier granted by Trial Court and he could furnish fresh surety---Course of action against surety was to be adopted separately by Trial Court in accordance with law.

Nisar Ahmed G. Abro for Applicant.

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

Date of hearing: 25th March, 2003.

2003 P Cr. L J 1436

[Karachi]

Before Wahid Bux Brohi, J

AKBAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-777 of 2002, decided on 26th March, 2003.

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

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10, 11 & 16---Bail, grant of---Though inordinate delay of one year was made in lodging of F. I. R. , but an explanation for such delay had been offered in the F.I.R. itself---Despite indulgence of headman of the tribe, abductee had not been returned---Accused was nominated in F. I. R. and abductee in her statements under Ss. 161 & 164, Cr.P.C. had implicated the accused saying that he was amongst culprits who had abducted her and kept her under control ---Abductee was found pregnant after recovery---She remained in captivity for a period of one year---Prima facie, evidence of victim, coupled with ocular evidence of complainant and other witnesses on the point of abduction and medical evidence, had connected the accused with crime---Bail plea of accused being premature, was rejected and his application was dismissed.

Mehboob Ahmad v. State 1999 SCMR 1102 and Hazar Khan v. State 2003 P Cr. L J 33 ref.

Abdul Rehman A. Bhutto for Applicant.

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

Date of hearing: 26th March, 2003.

2003 P Cr. LJ 1440

[Karachi]

Before Wahid Bux Brohi, J

TALIB HUSSAIN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 119 of 2003, decided on 25th March, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-A(i), (ii), F-(i), F(v), 114, 147 & 148---Bail, grant of---Case was of two versions and both F.I.Rs. filed by opposing parties had revealed that there was a fight between 8 persons on one side and 7 on the other, majority of them were armed with Lathis and the bone of contention was also common in both cases---Incident was almost a free fight---Medical report revealed that one of injuries attributed to accused was ' Shajah-e-Madiah' punishable with Qisas, Arsh and imprisonment for 5 years while other injury was "Ghayr Jaifah Damiah" punishable with Daman and imprisonment for one year---Injury attributed to other accused according to Medical Certificate was 'Jurh Ghayr Jaifah Damiah'---Offence against accused did not. fall within prohibitory clause of S.497, Cr.P.C. and point of aggression was yet to be determined at the trial---Accused were in custody for a period of more than 9 months---Accused were admitted to bail, in circumstances.

Shamsuddin A. Soomro for Applicants.

2003 P Cr. L J 1446

[Karachi]

Before M. Ashraf Leghari, J

ZAR WALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.316 of 2003, decided on 31st-March, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.395/34---Bail, grant of---In previous bail application which was not pressed by accused, directions were given to the Trial Court to examine remaining witnesses within shortest possible time, but Trial Court could not examine a single witness during the last about nine months---Case diaries showed that accused were not being produced by Jail Authorities, despite time and again show-cause notices had been issued against the Jail Authorities---Eleven witnesses were yet to be examined by prosecution---Accused was in custody for the last about 32 months and trial of case was not in sight--­Offence though was an heinous one, but accused could not be kept behind the bars for indefinite period without progress in the case---Accused was admitted to bail, in circumstances.

Shoukatullah Khan Bettani for Applicant.

Fazlur Rehman Awan for the State.

Date of hearing: 31st March, 2003.

2003 P Cr. L J 1452

[Karachi]

Before Rehmat Hussain Jaffery, J

HAMEER---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.S-80 of 2002, heard on 27th December, 2002.

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

----S. 13-D---Appreciation of evidence---Both prosecution .witnesses who were police officials were independent and natural witnesses as they left police station concerned in connection with the investigation of a crime--­No enmity existed between accused and said police officials---No motive or any cause was present with prosecution witnesses to falsely implicate accused---Both prosecution witnesses were cross-examined by accused, but except denial of involvement of accused in the case no other question was put to the said witnesses---Evidence of both prosecution witnesses in circumstances went unchallenged---Evidence of both prosecution witnesses which was natural and trustworthy, had rightly been relied upon by Trial Court---Accused had contended that he was not represented by any counsel before Trial Court as he could not engage an Advocate--­Accused had himself furnished explanation for not engaging, the Advocate---Even otherwise sufficient time was given to accused to engage Advocate, but he did not avail the said opportunity---For default of accused, prosecution could not be blamed---No major discrepancies or infirmities were found - in evidence of prosecution, except two discrepancies, one was non-production of entries in Roznamcha about departure of police from police station and second was non-sealing of property at spot---Entire evidence of prosecution could not be brushed aside solely on said two minor discrepancies particularly when statements of prosecution witnesses went unchallenged----Even otherwise sealing of property at Wardat was essential when crime weapon was used in commission of crime and from scene of offence empties were recover6d in order to connect weapon with empties, but in the present case no evidence existed that weapon secured from possession of accused was used in commission of any crime---Non-sealing of property, in circumstances was not the requirement of law---Mere possession of unlicensed arms and ammunition was an offence covered by Ss.13-D & 13-E of West Pakistan Arms Ordinance, 1965 under which it was not necessary that weapon should be in working condition---Objection that weapon secured from accused was not sent, to Ballistic Expert, had no force at, all---Contention was that provisions of S.103, Cr.P.C. had not been complied with as private persons were not associated in search proceedings---Provisions of S.103, Cr.P.C. were applicable when search was made in respect of a house but in the present case no search of house was involved as accused was apprehended near road where weapon was secured from him---Minor contradictions in evidence could be overlooked in circumstances of case---Prosecution having proved its case against accused beyond any shadow of doubt, accused was rightly convicted and sentenced by Trial Court.

Abdul Sattar v. The State 2002 PCr.LJ 51; Ashiq Ali v. The State 2002 PCr.LJ 450 and Stdte v. Muhammad Ameen 1999 SCMR 1367 ref.

Ali Akbar Kalhoro for Appellant

Ali Azhar Tunio, Assistant Advocate-General for the State.

Date of hearing: 27th December, 2002.

2003 P Cr. LJ 1459

[Karachi]

Before Zahid Kurban Alvi, J

NADIR and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.226 of 2003, decided on 28th May, 2003.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324/148/149---Bail, grant of---Long delay in trial which was not due to any fault on the part of accused persons or any person acting on their behalf---Trial was mistakenly conducted by Special Court who at the later stage returned the same for retrial for want of jurisdiction which was pending before Sessions Judge and even charge had not yet been framed and accused were languishing in jail for the last five years without trial---Such inordinate delay in prosecution of case would amount to abuse of due process of law which could be a sufficient ground for granting of bail--­Hardship and agony having been caused W the accused persons, they were granted bail.

1998 PCr.LJ 948; 1996 PCr.LJ 1818; Criminal Bail Applications Nos.393 of 2002, 173 of 2003, 185 of 2002 and 117 of 2003 and Ahrar Muhammad v. The State PLD 1974 SC 224 ref.

Muhammad Ayaz Soomro for Applicants.

Syed Mehboob Ali Shah for the State.

Date of hearing: 28th May, 2003.

2003 P Cr. L J 1468

[Karachi]

Before Sarmad Jalal Osmany, and Rahmat Hussain Jafferi, JJ

S.-I. Kazi SHAHID ALI ---Appellant

Versus

THE STATE---Respondent

Special A.T.A. No.72 of 2002, decided on 22nd May, 2003.

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

----Ss. 19(1)(2)(14), 21-K, 25 & 32---Contempt of Court---Summary procedure---Accused being police officer was investigating a criminal case, but he, having not completed investigation within time as provided under S.19(1) of Anti-Terrorism Act, 1997, moved the Trial Court for extension of time which was granted from time to time---Lastly on relevant date accused moved another application for extension of time which was dismissed and accused was simultaneously convicted as he was found guilty of not submitting challan within time which fell within ambit of contempt of Court in terms of S.19(2) of Anti-Terrorism Act, 1997--­Accused was convicted and sentenced to suffer simple imprisonment for seven days without issuing him any show-cause notice or framing charge against him and without recording his evidence or statement under provisions of S.32 of Anti-Terrorism Act, 1997---Provisions of Criminal Procedure Code, 1898 were applicable before Anti-Terrorism Court, if those were not inconsistent with the provisions of Anti-Terrorism Act, 1997---Separate procedure in the shape of summary trial had been provided under provisions of S.21-K of Anti-Terrorism Act, 1997 for the trial of offences which were punishable for not more than six months--­Accused, in view of said separate procedure, having been sentenced to suffer simple imprisonment for only seven days, procedure of Chap. XXII-A of Criminal Procedure Code, 1898 was not applicable ---Anti ­Terrorism Court being Court of Session, could invoke provisions of Chap. XXII of Criminal Procedure Code, 1898 for trial of class of cases mentioned in S.21-K of Anti-Terrorism Act, 1997 8 Ss.262 to 265 of Chap. XXII of Criminal Procedure Code, 1898 were not inconsistent with any provision of the said Act---No such procedure having been adopted in convicting and sentencing accused, conviction and sentence awarded to him by Trial Court were set aside and case was remanded to Trial Court for further proceedings and trial in accordance with law.

Javaid Chattari for Appellant.

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

Date of hearing: 15th April, 2003.

2003 P Cr. L J 1477

[Karachi]

Before Muhammad Afzal Soomro, J

JHUR--------Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.305 of 2003, decided on 10th June, 2003.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/364-A/201/147/148/149---Bail, grant of---Case against accused appeared to be false in view of background of enmity between the parties ---Co-accused had been granted bail and case of accused was identical---Accused remained in custody for more than two years and forty days---State Counsel had no objection, to the grant of bail to accused---Accused was admitted to bail in circumstances.

Muhammad Ayaz Soomro for Applicant.

Mushtaq Ahmad Kourejo for the State.

2003 P Cr. L J 1487

[Karachi]

Before M. Ashraf Leghari, J

ZAHID HUSSAIN ---Petitioner

Versus

THE STATE---Respondent

Criminal Bail Application No.63 of 2003, decided on 28th January, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497, third & fourth provisos [as omitted by Code of Criminal] Procedure (Amendment) Ordinance (LIV of 2001)]---Bail grant of---Case of accused was identical to the case of co-accused who had been granted bail by Trial Court on ground of statutory delay---Accused had completed his two years detention prior to the date when third & fourth provisos of S.497. Cr.P.C. were omitted---Right of bail on ground of statutory delay having already accrued to the accused prior to omission of third proviso of S.497, Cr.P.C. case of accused was at pat with that of co­ accused who had been granted bail on ground of statutory delay--­Accused was also entitled for the same concession which was extended to co-accused. and thus he was entitled for grant of bail on principle of consistency.

Hassan Ali for Applicant.

Fazlur Rehman Awan for the State.

2003 P Cr. L J 1492

[Karachi]

Before Muhammad Sadiq Leghari, J

Haji JATOI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 101 of 1999, decided on 5th June, 2003.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Arts.38, 39 & 40--­Appreciation of evidence---Accused appeared before S.H.O. of Police Station concerned and confessed by stating that one of the deceased who was- his maternal uncle's daughter had illicit connection .with the other deceased and, when he saw them in one bed, he ,slaughtered both of them---Confessional statement to the extent of a fact discovered in consequence thereof, was admissible under Art.40 of Qanun-e-Shahadat, 1984---Even otherwise, in the present case, evidence needed no detailed discussion as facts discovered a result of statement of accused were the place of incident and presence of dead bodies there having hatchet injuries on their bodies which fact had not been disputed or challenged by the defence---Judicial confession of accused though was recorded about 13 days after his arrest, but mere delay would not affect evidentiary value thereof---No time limit was fixed for recording judicial confession, it was only the voluntariness and truthfulness of confession which were ,to be seen---Judicial confession of accused bore thumb-impression of accused and Magistrate who had recorded confession of accused had no personal interest in the case nor he had any ill-will against the accused--­Magistrate had 'recorded certificate to the effect that confession of accused had been recorded after completing all the formalities--­Confessional statement of accused was also in complete conformity with undisputed material facts of case specially the date and venue of incident, particulars of deceased couple, nature of injuries on them and the weapon used---Confession of accused, in circumstances, was voluntary and true--­evidence of doctor who conducted post-mortem of the deceased, not only had proved unnatural death of both deceased, but also was in conformity with other prosecution evidence specially the judicial confession of accused, rim; of incident, manner of killing and weapon used in occurrence---Said evidence of doctor was not challenged through cross-examination despite opportunity was provided in that respect---Tradition of killing "Karo Kari" which by itself was motive behind the double murder, was very strong corroboration---Such killing had become a tradition which was rooted very deeply, and in such situation ordinary standards of proof required in criminal case. were not to be insisted upon---Entire .evidence had established beyond any reasonable doubt that accused had killed both deceased intentionally with premeditation---Accused had rightly been convicted and sentenced.

Javed Iqbal v. The State PLD 1975 Pesh. 230; Abdul alias Abdul Karim and another v. The State 1975 PCr.LJ 1077; Mst. Naseem Akhtar and another v. The State 1999 SCMR 1744 and Munawar Hussain alias Babu and 2 others v. The State 1993 SCMR 785 ref.

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

----Arts.38, 39, 40 & 42---Confession---Conviction on judicial confession---Law did not prohibit from basing conviction of accused on judicial confession alone even, if retracted, provided it was true and voluntary--Conviction, in case . of capital punishment, could be based only on retracted judicial confession if it was true and voluntary.

Wazir Khan v. The State 1989 SCMR 446 ref.

Manzoor Ahmad Z.. Siddiqui for Appellant.

Anwar H. Ansari for the State.

Date of hearing: 11th March, 2003.

2003 P Cr. L J 1503

[Karachi]

Before Muhammad Sadiq Leghari, J

Mst. SAIMA BIBI---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous No.44 and Miscellaneous Application No.930 of 2003, decided on 13th June, 2003.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 164 & 169---Penal Code (XLV of 1860), S.363---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(2)--­Application for quashing of order---Applicant, a female was among witnesses named in the charge-sheet submitted under S.169, Cr.P.C. for offences exclusively triable by Court of Session, but Judicial Magistrate while sending case to Court of Session for trial, hats joined applicant as accused despite the fact that she neither was nominated in F.I.R. as accused nor she was among accused persons in report submitted under S.169, Cr.P.C.---Order of Additional Sessions Judge had also given clear impression that applicant had been joined as accused and was sent for trial together with the accused persons---Report submitted under S.169, Cr.P.C. clearly mentioned that applicant due to excess committed by accused on her had attempted to commit suicide---Applicant in her statement made under S.164, Cr.P.C. also had alleged that she had forcibly been kidnapped and subjected to Zina by accused---Conclusion of Judicial Magistrate, in presence of said evidence, that statement of applicant was false and that she, was consenting party to the offence of Zina and passing order that applicant be tried together with accused persons, was without jurisdiction---When complaint was presented before the Judicial Magistrate, he had limited jurisdiction for taking cognizance of case only to the extent of application of mind as to whether contents of the complaint had disclosed commission of offence which was triable by the Court of Session exclusively---Judicial Magistrate having come to the conclusion that contents of complaint had disclosed offence triable exclusively by Court of Session, he had to stop there and send complaint to the Court of Session---Order passed by Judicial Magistrate against the applicant was without jurisdiction and void and also was an abuse of process of law and Additional Sessions Judge had also acted illegally by maintaining such an order---Both orders were quashed, in circumstances.

Nisar Ahmed Dogar for Applicant.

Fazal Rehman Awan for the State.

Date of hearing: 23rd April, 2003.

2003 P Cr. L J 1510

[Karachi]

Before Zahid Kurban Alvi, J

DADAN alias DAD MUHAMMAD ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-269 of 2003, decided on 2nd June, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/114/147/149/34--­Bail, grant of---Further inquiry---Occurrence was reported to police after delay of 10 hours---Name of accused did not appear in F.I.R., but it was brought later on in the wake of statements of prosecution witnesses recorded under Ss.161 & 164, Cr.P.C.---Major contradictions had appeared in evidence of prosecution witnesses with regard to date, place and time of incident---Some other contradictions with regard to number of accused and part assigned to them were found in the evidence--­Prosecution case was of-two versions, which called for further enquiry--­Prosecution had failed to bring home guilt of accused while accused had been able to make out a case for bail---Accused was admitted to bail, in circumstances.

2001 PCr.LJ 1628; 1976 SCMR 366; 2002 PCr.LJ 564; 1987 PCr.LJ 1338; 2002 PCr.LJ 564; 1997 PCr.LJ 1319; 1984 PCr.LJ 2495; 1999 SCMR 1377; 2002 PCr.LJ 29 and 2002 MLD 1395 ref.

Muhammad Ayaz Soomro for Applicant.

Syed Mehboob Ali Shah for the State.

Date of hearing: 2nd June, 2003.

2003 P Cr. L J 1521

[Karachi]

Before Zahid Kurban Alvi, J

SHABIR and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 117 of 2003, decided on 28th May, 2003.

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

----S. 497---Bail, grant of---Principles---Bail was aright in a bailable case and grace and concession in a non-bailable offence---Person was presumed innocent unless proved guilty---Court should try and dispose of case as early as possible as delay was detrimental to accused--­Concession of bail on ground of delay should be considered by Court--­Reason for delay, in the present case, could not be attributed to the accused---Court whilst considering delay had even considered the past efficiency of Trial Court and had accordingly computed how long it would take to complete the trial---Hardship could also be looked into by Court considering the age of accused, his physical condition and the condition of the jails---Bail should be granted in cases of hardship, if some of the said principles were, applicable.

Bago and 2 others 1996 PCr.LJ 1818; Ali Murad v. The State PLD 1995 Kar. 137; Eijaz Ahmed v. The State 1994 SCMR 658; Khalid v. The State 1994 PCr.LJ 12; Riasat Ali -v. Ghulam Muhammad PLD 1968 SC 353; Riasat Ali and others v. The State PLD 1977 SC 480; Sher Zaman v. Muhammad Azad and another 1978 SCMR 248; Barkhurdar v. Liaquat Ali PLD 1977 SC 434; Manzoor Khan v. Kameer 1972 SCMR 207; Manzoor Ahmed v. The State PLD 1972 SC 81; Muhammad Sadiq v. Muhammad Shafi 1973 SCMR 212; Ahrar Muhammad v. The State PLD 1974 SC 224; Ghulam Jilani v. The S.H.O., Police Station Gulbarg PLD 1975 Lah. 210; Muhammad Umar v. The State 2002 PCr.LJ 1; Mumtaz and 13 others v. The State 1992 PCr.LJ 2325; Tariq Bashir v. The State PLD 1995 SC 34; Muhammad Arshad v. The State 1993 PCr.LJ 2432; Muhammad Yousif v. The State 2000 SCMR 79; Mian Manzoor Ahmed Wattoo's case 2000 SCMR 107; Bahrain v. The State 2003 PCr.LJ 73; Abdul Hameed v. The State 2003 MLD 19; Muhammad Aslam v. The State 1999 SCMR 2147; Haq Nawaz v. The State 2002 MLD 493; Anwar Ali and others v. The State 2002 PCr.LJ 186 and Fida Hussain v. The State PLD 2002 SC 46 ref.

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

----S...497---Penal Code (XLV of 1860), Ss.302/324/353/114/34--­Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(2)(4)---Bail, grant of---Accused though had sought bail mainly on ground of hardship, but other substantial grounds were also urged by them which could be considered for purpose of granting of bail---Accused had produced certified copies of. case diaries to substantiate stand that case had not been pursued by the prosecution with due diligence to no fault of accused ---Accused, in circumstances, were entitled to grant of bail.

Muhammad Ayaz Soomro for Applicants.

Muhammad Murad Chachar for the Complainant (in Criminal Bail Application No. 117 of 2003).

Sardar Khan Lashari for the Complainant (in Criminal Bail Application No.173 of 2003).

Asif Ali Abdul Razzak Soomro for the Complainant (in Criminal Bail Application No.393 of 2003).

Ali Azhar Tunio, Asstt. A.-G.

Syed Mehboob Ali Shah for the State.

Date of hearing: 26th May, 2003.

2003 P Cr. L J 1599

[Karachi]

Before Muhammad Mujibullah Siddiqui and Anwar Zaheer Jamali, JJ

KHALID MUKHTAR---Applicant

Versus

THE STATE and 2 others---Respondents

Criminal Miscellaneous Applications Nos.24, 35 and 36 of 2003, decided on 12th June, 2003.

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

----S. 9---Customs Act (IV of 1969), S.156(1)(14) & (82)---Criminal Procedure Code (V of 1898), S.561-A---Corruption and corrupt practices---Application for quashing of proceedings---Challan, in the present case, was initially submitted in the Court of Special Judge (Customs and Taxation) in the year 1992, and subsequently, on establishment of Accountability Court the case was referred to that Court---Contention of the accused was that three identical F.I.Rs. were lodged by the complainant and accused was not named in them and when the joint interim challan was filed before the Special Judge (Customs and Taxation) he was again not implicated therein but in the final challan his name was included as accused on the allegation that in the year 1991 an account was opened in the name of one of the co-accused on his introduction (as Bank Manager) wherein a Bank draft was deposited at the behest of another co-accused and the amount was subsequently withdrawn---Sole allegation against the accused applicant was that he, as a Manager of the Bank, had opened an account of the co-accused in his Bank---Validity---Prosecution, in the present case, had totally failed to show if the opening of an account, per se, amounted to commission of any offence---Question of abetment would not arise as the account was opened much after the offence allegedly committed by the accused Custom Officials, exporters and the bankers, was already completed in all---No evidence whatsoever was available against the and no material was on the record to even remotely him with the commission of alleged offence and therefore there no probability of his conviction for any offence whatsoever---of proceedings against the applicant/accused before the Court thus amounted to sheer harassment and abuse of the of the Court---High Court, in order to secure the ends of justice ordered to quash the proceedings.

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

-----S. 9---Customs Act (IV of 1969), S.156(1)(14) & (82)---Corruption and corrupt practice---Administration of justice---High Court observed that providing protection to the persons actively engaged in the conspiracy of causing huge loss to the public exchequer and letting them off the hook by the Government functionaries could adversely affect the entire system which was to be scrupulously avoided.

The Customs Officials and the bankers who were initially alleged to be actively engaged in the conspiracy of causing huge loss to the public exchequer had been provided protection and had been let off the hook for the reasons best known to the prosecution and the authorities concerned. Since the High Court had no seisin over the matters pertaining to the Customs Officials and the Bank Officials therefore, in their absence the Court refrained to make any further observation in this regard except that letting off the persons allegedly involved actively in using huge loss to the public exchequer and prosecuting the innocent persons declared so by the Adjudicating Authority of Customs Department, did not augur well of any system of administration of justice and particularly, pertaining to accountability process. On one hand it militated against the principle of across the board accountability, and on the other it ignored the salutary principle that the prosecution of innocent persons amounted to their persecution, adversely affecting the entire system, which should be scrupulously avoided.

Khalid Anwar for Applicant.

M. Anwar Tariq, D.P.G.A. for Respondents.

Date of hearing: 9th June, 2003.

2003 P Cr. L J 1619

[Karachi]

Before S. Ahmed Sarwana, Muhammad Afzal Soomro and Muhammad Mujeebullah Siddiqui, JJ

KHAN MUHAMMAD and another---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeal No.101 and Confirmation Case No.5 of 1998, decided on 28th May, 2003.

Per Muhammad Afzal Soomro, J.---

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

----S.302(c)---Provocation, doctrine of explained.

The defence of provocation may arise where a person does intend to kill or inflict grievous bodily harm but his intention to do so arises from sudden passion involving loss of self-control by reason of provocation. An illustration is to be found in the case of a man finding his wife in the act of adultery who kills her or her paramour, and the law has always regarded that, although an intentional act, as amounting only to manslaughter by reason of the provocation received.

Provocation in law consists mainly of three elements; the act of provocation, the loss of self-control, both actual and reasonable and the retaliation proportionate to the provocation. Their relationship to each other, particularly in point of time, whether there was time for passion to cool, is of the first importance. The point to emphasis is that provocation in law means more than a provocative incident.

The law, is not concerned with the brain but with the `mind', in the sense that mind is ordinarily used, the mental faculties of reason, memory and understanding.

It is not all provocation that will reduce the crime of murder to manslaughter. Provocation, to have that result, must be such as temporarily deprives the person provoked of the power of self-control as the result of which he commits the unlawful act which causes death. In deciding the question whether this was or was not the case, regard must be had to the nature of the act by which the offender causes death, to the time which elapsed between the provocation and the act which caused death, to the offender's conduct during that interval, and to all other circumstances tending to show the state of his mind.

The rationale of the doctrine of provocation, then, is that `homicide is owing to a sudden transport of passion, which, through the benignity of the law, is imputed to human infirmity'.

One has to consider the mental state of the wrong-doer, not in relation to mens rea (for the blow he struck was voluntary, and he intended to kill by means of it), but in relation to the criminality of the actus itself.

It is for this reason that if the wrong-doer had sufficient time for the blood to cool and the reason to resume its seat', provocation, however, grave was not treated as an excuse.

Muhammad Yousuf v. The State 1981 SCMR 422; Nazir Ahmed v. Muhammaduddin 1981 SCMR 415; Muhammad Afzal v. The State 1987 SCMR 1864; Viscount Simon in Holmes (1946) AC 588; Lee Chun Chuen (1963) AC 220; Kumarasinghege Don John Perera (1953) AC 200; R v. Kemp 1957 QB 399; Mancini v. Director of Public Prosecutions (1942) ABC 1; R. v. Camplin (1978) AC 705; The Mental Element in Crimes at Common Law and The Principles and Practice of Criminal Law by Seymour F. Harris, 15th Edn., pp.201 - 202 ref.

Per S. Ahmed Sarwana, J. Muhammad Mujeebullah Siddiqui, J. agreeing---

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

----Ss. 302(c) & 34---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 121--­Reduction in sentence---Mitigating circumstance---Plea of provocation--­Allegation of Karo Kari---Burden of proof ---Factum of murder having been proved, the burden for bringing the case within the special exception for a lenient view in the sentence was upon the accused persons who should have proved that whilst deprived of the power of self-control by grave and sudden provocation they caused the death of the person who gave the provocation---Accused, in the present case, had neither produced any evidence to prove that the deceased did any act or conducted himself in any particular manner or was found in such a compromising position which suddenly provoked them to cause his death nor was there any evidence on record or circumstance which indicated that the accused persons were deprived of the power of self-control by grave and sudden provocation caused by the deceased---Statements of the prosecution witnesses neither proved the existence of illicit connection between the deceased and the lady as alleged, nor any act leading to any suspicion or doubt was mentioned---Mere suspicion or doubt expressed by the accused persons could not lead to any grave and sudden provocation which could have deprived the accused of the power of self-control without any overt act on the part of the deceased or connected with any suspicion or doubt---Burden of proof, in circumstances, having shifted on the accused they should have adduced evidence of fact or circumstance to lay the foundation of suspicion or doubt which suddenly provoked them gravely to murder the deceased--­Accused persons neither had examined themselves nor produced any witness---If simple uttrances of doubt of illicit relationship by one person killing another were taken as evidence of suspicion depriving a person of the power of self-control to justify lesser punishment, the same would provide a very convenient tool to avoid punishment of death for premeditated murder by loudly uttering or shouting the words within the hearing distance of witnesses while murdering a person "that I am killing this person as I suspect him or he is suspected of having illicit relations with so and so"---Such easy method of avoiding death sentence was patently mala fide, unjustified and inhumane and must be strongly deprecated and rejected outright---Islamic Law under any Fiqah had not permitted any citizen to take the law into his own hands and had obligated the State to protect the life and liberty of every citizen and severely punish the person who did so---Acceptance of the ground of mere suspicion of illicit relation (Kayo/Kari) to kill would amount to giving to the members of the Society an unfettered licence to kill any person they dislike, abhor, hate, or who had annoyed them in any way—­Principles.

Per Muhammad Mujeebullah Siddiqui, J.

Said Amir Shah v. The State 1969 PCr.LJ 1589; Muhammad Yunus v. The State 1981 SCMR 422; Nazir Ahmed v. Muhammad Din and others 1981 SCMR 415; Matiur Rehman and another v. The State and others 1985 SCMR 489; Muhammad Afzal v. The State and another 1987 SCMR 1864; Abdul Rashid v. The State 1989 SCMR 165; Zafar Ali v. The State 1990 SCMR 595; Ghulam Abbas v. Mazher Abbas and another PLD 1991 SC 1059; Muhammad Ashraf Khan Tareen v. The State and another 1996 SCMR 1747; Naubahar v. The State 1999 SCMR 637; Muhammad Yaqoob alias Qooba v. The State 1999 SCMR 1138; Imran Ashraf and 7 others v. The State 2001 SCMR 424; Muhammad Aslam and others v. The State and others 2001 SCMR 223; Nawaz Ali and another v. The State 2001 SCMR 726; Miss Najiba v. Ahmed Sultan 2001 SCMR 988; Noor Muhammad v. The State 1999 SCMR 2722; Waris Khan v. The State 2001 SCMR 387; Abdul Wahab v. The State 1999 SCMR 1668; Ali Khan v. The State PLD 1963 Kar. 1042; Saeed Iqbal Bhatti v. The State 2000 MLD 2023; Munawar Ali v. The State 2001 SCMR 614 and Muhammad Akram Khan v. The State PLD 2001 SC 96 ref.

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

----S. 302/34---Qanun-e-Shahadat (10 of 1984), Art. 117---Appreciation of evidence---Plea of vindicating family honour---When a mitigating circumstance for lenient view in the matter of sentence?---Motive---Proof of motive or previous ill-will was not necessary to sustain a conviction for murder in a case where a person was coolly barbarically put to death or when the offender was caught red-handed---Where the fact of murder had been clearly established, it was by no means incumbent on the prosecution to show as to what particular motive actuated the criminal's mind and induced him to commit the particular crime---Accused, in the present case, having admitted the fact of murder, it was not necessary to prove any motive, ill-will or enmity---Bare taking the plea of vindicating family honour would not lay the foundation for taking a lenient view to reduce the death sentence to life imprisonment---Accused should have produced evidence to support their plea to bring their case within the exception---Accused having failed to make out a case for reduction of sentence, sentence of death awarded by the Trial Court was in accordance with law and circumstances of the case.

Muhammad Yunus v. The State 1981 SCMR 422 and Nazir Ahmed v. Muhammad Din and others 1981 SCMR 415 and Muhammad Afzal v. The State 1987 SCMR 1864 distinguished.

Holems by Viscount Simon (1946) AC 588 and Chun-Chen's case 1963 AC 220 ref.

Per Muhammad Afzal Soomro, J. contra.---

Per Muhammad Mujeebullah Siddiqui, J. agreeing with S. Ahmad Sarwana, J.---

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

----S. 302---Offence having been committed in the year 1989 and S.302, P.P.C. having been amended in the year 1990, the amended S.302, P.P.C. was not relevant to the present case ---Unamended S.302, P.P.C. was to be considered and the case was to be decided in accordance with the said provision of law.

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

----S. 302---Appreciation of evidence---Motive---Value---Weakness of motive or its absence or where alleged but not proved would not constitute mitigating circumstance for alteration of sentence from death to the imprisonment for life---Principles.

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

----S. 302/34---Appreciation of evidence---Plea of provocation---When a mitigating circumstance justifying lesser awarding of sentence---Mere shouting/declaring by the assailants/accused that they suspected any male/female to be Karo/Kari, although there was no immediate circumstance for entertaining such suspicion or inciting of emotion, could not be treated to be a provocation arousing impulse of passion, sufficiently grave in nature justifying awarding of lesser sentence--­Principles.

(g) Islamic Jurisprudence---

---- Protections afforded by Islam ---Maqasid-ul-Sharia envisage Hifz-ud­-Din (protection of religion); Hifz-ul-Nafs (protection of life); Hifz-ul-Aql (protection of mental faculty); Hifz-ul-Mal (protection of property) and Hifz-ul-Ird (protection of honour).

Habibullah Shaikh for Appellants.

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

Date of hearing: 23rd August, 2001.

2003 P Cr. L J 1700

[Karachi]

Before Muhammad Mujeebullah Siddiqui and Muhammad Anwar Zaheer Jamali, JJ

MUHAMMAD LATEEF---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.615 of 2003, decided on 11th June, 2003.

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

----S. 497---Control of Narcotic Substances Act (XXVII of 1997), Ss.6, 7, 8, 9, 12, 13, 14, 15 & 37---Bail, grant of---Contention of the accused was that although according to Mashirnama 4 Kgs. of Charas was alleged to have been recovered from the possession of accused, but, out of total alleged recovery, only 200 grams of Charas was taken as sample and separately sealed for chemical examination and test and the remaining material was separately sealed, which was not sent to the Chemical Examiner, therefore the culpability of the accused .was confined to 200 grams of Charas only which brought the offence within the purview of S.9(b) of the Control of Narcotic Substances Act, 1997 which provided maximum sentence of 7 years and did not fall under the prohibitory clause of S.497, Cr.P.C. and therefore the accused was entitled to be released on bail---Validity---Where the accused had not challenged that the substance so recovered was not narcotic substance, it would not be necessary to have sent the entire case property to the Chemical Examiner for examination---If the accused had challenged the recovery to be not narcotic substance then it would have been necessary for the prosecution to have sent the entire case property so recovered for chemical examination-Just and proper course was that reasonable quantity of the narcotic drug was sent to the Chemical Examiner for analysis considering that in some cases the case property could be in huge quantity which could cause great hardship, inconvenience in sending and transporting the same and would also cause delay in getting the report, so also in disposal of the cases---Recovery of Charas having been proved from the accused and they having not challenged the nature and contents of the substance as being not Charas or narcotic substance, accused could not turn around and say that because only small quantity of case property was sent to Chemical Examiner, they were entitled to bail---Bail application of accused, was refused in circumstances. ---[Shahmore v. The State PLD 2003 Kar. 230 and Farid Gul v. The State 2002 PCr.LJ 1810 overruled].

Shamore v. The State PLD 2003 Kar. 230 and Farid Gul v. The State 2002 PCr.LJ 1810 overruled.

Nadir Khan and others v. The State 1988 SCMR 1989 and Ali Muhammad and another v. The State 2003 SCMR 54 fol.

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

----Art. 189---Decision of Supreme Court to the extent that it decided the question of law or was based upon or enunciated a principle of law was binding on all other Courts in Pakistan---Where, in a case, Division Bench of the High Court had not followed the principle of law enunciated by the Supreme Court but had given a contrary view, in order to overrule such judgment of the High Court constitution of Full Bench of the High Court was not required---Principles.---[ Shamore v. The State PLD 2003 Kar. 230 and Farid Gul v. The State 2002 PCr. LJ 1810 overruled].

Shamore v. The State PLD 2003 Kar. 230 and Farid Gul v. The State 2002 PCr.LJ 1810 overruled.

Amir Saeed for Applicant.

Shoaib M. Ashraf for A.N.F.

Date of hearing: 11th June, 2003.

2003 P Cr. L J 1841

[Karachi]

Before Muhammad Ashraf Leghari, J

ABDUL RASHID and another---Applicants

Versus

THE STATE---Respondent

Special Criminal Bail Applications Nos. 11 and 12 of 2003, decided on 13th June, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Sales Tax Act (VII of 1990), Ss.37-A(3)/37-A(5)/37-C--­Bail, grant of---Accused were Director and Chief Executive respectively of a Company registered with Collectorate of Sales Tax and Central Excise---Monthly returns for the period spreading over about three years, had declared no sale and purchase by the Company---Company, admittedly had not produced relevant registers and other record including invoices and Bank accounts except few invoices which were also not in sequence---Documents including large number of invoices were withheld which act by itself had shown that company wanted to conceal actual evasion instead of disclosing the same---Huge documentary evidence collected by prosecution had furnished reasonable grounds to believe that accused persons were involved in the commission of offence of tax fraud regularly, constantly and repeatedly---Offence though was punishable with five years, but same being an organised and planned white collar crime affecting the society at large accused were not admitted to bail.

Saeed Ahmed v. The State 1996 SCMR 1132; Ayaz Ahmed v. The State 2003 PCr.LJ 1340; Imtiaz Ahmed and another v. The State PLD 1997 SC 545 and Afzal, Ahmed v. The State 2003 SCMR 573 ref.

Khalid Javed Khan, M. Ilyas Khan and Muhammad Farooq, for Applicants.

Mahmood A. Rizvi, Standing Counsel.

K.M. Ansari for the Customs.

Ahsan Ali Shah, Assistant Collector, Sales Tax.

Date of hearing: 25th May, 2003.

2003 P Cr. L J 1847

[Karachi]

Before Shabbir Ahmed and Azizullah M. Memon, JJ

ABDUL HUSSAIN ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.40 of 2001 and Criminal Jail Appeal No.41 of 2001, decided on 31st January, 2003.

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

----Ss. 302(a), 302(b) & 304---Appreciation of evidence---Sentence of death by Qisas---Alteration of sentence into Ta'zir---Validity---In absence of proof of Qatl-i-Amd in the form prescribed under S.304, P.P.C. or where witnesses did not qualify standard of competent witnesses as prescribed by Islamic Injunctions, sentence of death by Qisas could not be awarded---Conviction, however could be recorded under S.302(b), P.P.C. by way of Ta'zir---Section 302(b), P.P.C. prescribed punishment of death or imprisonment for life as Ta'zir---High Court had the power to modify sentence under S.302(a),. P.P.C. to 302(b), P.P.C.

Manzoor v. The State 1992 SCMR 2037; Sanaullah v. The State PLD 1991 FSC 186; Ghulam Ali v. The State PLD 1986 SC 741 and Muhammad Saleem v. The State PLD 2002 SC 558 ref.

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

----S. 369---Powers of High Court to alter judgment---Scope---High Court had no power under law to alter judgment except only where some clerical error was to be corrected--High Court could only correct its own error and not that of any subordinate Court.

The Crown v. Saidu PLD 1952 Lah. 560 ref.

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

----S. 302(a)---Appreciation of evidence---Medical evidence ---Medical evidence could furnish corroboration, but could neither establish identity of assailant nor connect him with the crime.

Muhammad Iqbal v. Abdul Hussain 1994 SCMR 1928 and Muhammad Ahmed v. The State 1995 SCMR 127 ref.

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

----S. 302(a)---Motive---Motive, no doubt was one of the relevant pieces of evidence which furnished support to prosecution case, as to involvement of accused in. the offence, but it was double-edged weapon--­While motive could be a sufficient reason for commission of offence by accused, it could equally be a reason for false involvement of accused in the crime--Where prosecution case would rest solely on testimony of interested witnesses, it would not be safe to seek corroboration from the same witness, regarding motive.

Muhammad Sharif v. The State 1995 SCMR 635 and Muhammad Ashraf v. The State 1992 SCMR 279 ref.

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

----S. 302(a)---Appreciation-of evidence---Motive alleged against accused had not been proved through independent evidence to corroborate interested testimony of eye-witnesses---Acceptance of motive through such witnesses would not be safe for corroboration ---Crime empty which was seized from the place of Wardat after four days of arrest of accused and after 22 days of occurrence, was not sent to Ballistic Expert for examination---Recovery of pistol had not been proved by prosecution witnesses---Such recovery could not be relied upon to furnish corroboration as pistol recovered was not sent for examination---Houses of persons who were attracted to Wardat, were in the same street, but they were not examined during the investigation and at the trial---Ocular testimony furnished by brother and cousin of the deceased, was not corroborated by any independent piece of evidence and story tailored by them did not fit in circumstances of the case---Neither motive had been proved from the independent source nor recovery of crime weapon could furnish corroboration to evidence of said witnesses and had been disbelieved to the extent of co-accused---Case of prosecution, in circumstances, was not free from doubt---Possibility could not be ruled out that deceased had been done to death in the manner other than as stated by the prosecution witnesses --- Accused, was entitled to benefit of doubt which was withheld by Trial Court without support of sound reasons---Basic principle of Sharia was that conviction must be based on evidence beyond any shadow of doubt---Prosecution having failed to prove its case against accuse beyond any shadow of doubt, conviction recorded by Trial. Court, was set aside, in circumstances.

Atta Muhammad v. The State 1995 SCMR 599; Muhammad Rashid v. Maqbool Ahmed PLD (sic) Kar. 356; Ishaq v. The State PLD 1985 Kar. 596 and Zafar Hayat v. The State 1995 SCMR 896 ref.

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

----S. 302(a)---Appreciation of evidence---Benefit of doubt---Rule of prudence---Rule of benefit of doubt which was described as golden rule, was essentially the rule of prudence which could not be ignored while dispensing the justice according to law---Such rule was based on maxim "it is better that ten guilty persons be acquitted rather than one innocent person be convicted"---Said rule occupied a pivotal place in Islamic Law and was enforced vigorously in view of saying of Holy Prophet (p.b.u.h.) that "mistake of Qazi in releasing a criminal was better than his mistake in punishing an innocent".

Ayub Masih v. The State PLD 2002 SC 1048 ref.

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

----Ss. 374, 375, 376 & 418---Penal Code (XLV of 1860), S.302 --- Sindh Courts Criminal Circular, Chap: VII, Para. 7(2), Cl. (xxvi)---Death sentence, confirmation of---Reference---No reference was made for confirmation of death sentence by Sessions Judge in the present case--Such steps by Sessions Judge were not in conformity either with provisions of S.374, Cr.P.C. or in terms of Cl. (xxvi) of Para. 7(2) of Chap. VII of Sindh Courts Criminal Circular---Reference was a proceedings independent of appeal---Appeal was a right conferred on convict under S.418, Cr.P.C. whereas S.374, Cr.P.C. enjoined upon the Sessions Judge for submission of proceedings, wherein he had passed death sentence for its confirmation by the High Court, which was a statutory duty---Confirmation or otherwise of death sentence, was statutory duty and in absence of any period of limitation prescribed for reference, High Court, could require Sessions Judge concerned to submit proceedings to enable it to discharge an onerous, but statutory duty--­Provisions of Cl.(xxvi) of sub-para. (2) of para.7 of Chap.VII of Sindh Courts Criminal Circular, required that Sessions Judge would submit proceedings to High Court within 14 days of judgment with record detailed therein---In absence of a period prescribed in Limitation Act, 1908 or Criminal Procedure Code, 1898 reference after period prescribed in the said Circular, would not deter High Court from discharging its statutory duty.

Gul v. Emper AIR 1921 Sindh 84; Emperor v. Bankatram Lachiram 6 Bom. LR 379 and Parcho Kewal Ram v. Emperor AIR 1944 Sindh 83 ref.

A.Q. Halepota or Appellant.

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

Dates of hearing: 30th and 31st January, 2003.

2003 P Cr. L J 1869

[Karachi]

Before Zahid Kurban Alvi and Muhammad Mujeebullah Siddiqui, JJ

ALI BUX---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 16 of 2002, decided on 29th May, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497--- Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 9, 12, 14 & 15---Bail, grant of---Accused had been behind the bars for the last five years on the charge of having 250 grams of heroin---Case against the accused had not been proceeded and evidence of witnesses had also not been recorded---Accused, if found guilty, maximum punishment was seven years---Bail was granted to the accused in circumstances.

Muhammad Ayaz Soomro for Applicant.

Shevak Ram for the State.

2003 P Cr. L J 1872

[Karachi]

Before Muhammad Afzal Soomro, J

JAN MUHAMMAD ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.316 of 2003, decided on 25th June, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-A(i)/337-F(ii)/34---Bail, grant of---Contention of accused was that case against him was false and he had been involved in the case in background of enmity as disclosed in the F. I. R. ---Accused further contended that it was a case of three versions which required. Adjudication no specific part was assigned to him and that it was a case of general allegation ---F.I.R. had revealed that only `Lathis' were used in the occurrence and no automatic or semi­automatic weapon of any common pattern was used in the commission of crime---Nothing incriminating had been secured from possession of accused---Offence alleged against accused was not punishable, beyond seven years and was out of prohibition contained in S.497(1), Cr.P.C.--­Co-accused had been granted bail and case of accused was identical to the case of co-accused---Accused was entitled to grant of bail in view of principle of consistency---State Counsel had conceded to contentions of accused and had no objection if bail was granted---Accused was admitted to bail, in circumstances.

Muhammad Ayaz Soomro for Applicant.

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

2003 P Cr. L J 1878

[Karachi

Before Muhammad Mujeebullah Siddiqui, J

BAKHT HUSSAIN --- Applicant

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.407 and 408 of 2001, decided on 15th January, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of- 1860), S.302/34---Bail, grant of--­Complainant had not shown any suspicion on anybody including accused and had stated in F.I.R. that deceased was murdered by some unknown persons and that he had no suspicion on any particular person---Statement of prosecution witnesses under S.161; Cr.P.C. in which it had been stated that there was gosip that deceased had been killed by her wife/accused alongwith other co-accused, was recorded after one month and three days of the incident---No report was available on record to show that blood stains on the clothes of accused- matched with the blood stains on the clothes of the deceased---Prosecution had not been able to produce any evidence from which reasonable grounds could be discerned to prove that accused were guilty of offence punishable with death or imprisonment for life--;Case of the accused was fit for grant of bail, in circumstances.

Madad Ali Shah for Applicants.

Muhammad Azeem Panhwar for the State.

2003 P Cr. L J 1892

[Karachi]

Before S.A. Rabbani, J

ASLAM AKBAR KAZI and 3 others---Applicants

Versus

GULZAR AHMAD CHANNA and another---Respondents

Criminal Miscellaneous Application No.29 of 1996, decided on 1st April, 2002.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 198-A---Penal Code (XLV of 1860), S.501---Application for quashing .of proceedings and order---Complainant who was Superintendent, Central Prison, had alleged that accused had published a news regarding commission of sodomy by warder of Jail on an under trial prisoner which news was baseless and amounted to defamation against complainant as public servant and if it was a case of defamation against the complainant as public servant complaint should have been filed by Public Prosecutor under S.198-A, Cr.P.C. with previous sanction of Government, but it had not been done so---Neither complaint was filed by a person authorized by law or one allegedly defamed, nor the Magistrate had mentioned that he found that offence was committed, impugned proceedings and order passed by the Magistrate were not in accordance with law---Order as well as proceedings before Magistrate, were quashed in circumstances.

Madad Ali Shah Syed for Applicants.

Respondent No. 1 in person.

Muhammad Azeem Panhwar for A.-G. for the State.

2003 P Cr. L J 1897

[Karachi]

Before Wahid Bux Brohi, J

NIZAMUDDIN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 162 of 2003, decided on 5th May, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324/337-F(iii)/34--­Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail, grant of---.Further inquiry---One of prosecution witnesses was a police man and identification test was delayed for five days for which no plausible reason had been stated---Ratio of dummies to accused should have been nine to one, but said aspect had been ignored without any valid reason---Unopposed contentions of accused persons had brought their case within purview of further inquiry---Bail application was allowed, in circumstances.

Ghulam Nabi v. The State 1992 PCr.LJ 1852 and Shafique Ahmed v. State 2002 PCr.LJ 518 ref.

Muhammad Sharif Qazi for Applicants.

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

2003 P Cr. L J 1903

[Karachi]

Before Muhammad Afzal Soomro, J

MIR JAN---Applicant

versus

THE STATE---Respondent

Bail Application No.642 of 2002, decided on 29th May, 2002.

(a) Criminal trial---

---- When an accused was charged under two different Statutes or laws, then he could only be tried for offences under the law which provided lesser sentence provided that offences were alike or similar in nature.

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

----S. 497---Penal Code (XLV of 1860), Ss.419/420/468/471/109/34--­Foreigners Act.(XXXI of 1946), Ss.3(2)(a)(b)/13/14---Bail, grant of--- Prosecution had failed to establish that accused was prima facie guilty of an offence punishable with death, imprisonment for life or ten years--­Accused, was entitled to grant of bail, in circumstances.

Naseemuddin alias Naseem Qamar for Applicant

Syed Ziauddin Nasir; Dy.A.-G. for the State.

2003 P Cr. L J 1909

[Karachi]

Before Ghulam Rabbani, J

Mst. ZUHRA BIBI and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No. 1578 of 2001, decided on 24th April; 2002.

Criminal Procedure Code (V of 1898)---

---S. 497---Penal Code (XLV of 1860), Ss.302/364/364-A/34---Bail, grant of---F.I.R. had been lodged after an. unexplained delay of about 12 hours though distance between the lace of incident and Police Station was only one hundred yards---Name of the co-accused did not find place in F. I. R. ---Complainant was not an eye-witness of abduction or murder--­Three eye-witnesses on whose information complainant had lodged the F. I. R., in their statements under S.161, Cr.P.C., had assigned no role to the two accused ladies about the occurrence of the incident---No recovery of any incriminating article had been made from the possession of accused or on their pointation---Accused had not made judicial or extra­-judicial confession---One of the accused lady had a suckling child and other was an old one and they both were in jail for the last one and a half years---State Counsel who did not controvert facts of the case; did not object to the grant of bail to the accused and had submitted that no specific allegation could be leveled against both accused ladies about the abduction or killing of the deceased---Accused were admitted to bail, in circumstances.

Makhdoam Mujtaba Shah for Petitioners.

Kazi Wali Muhammad for the State.

Shoukat H. Zubedi: Amicus curiae.

Date of hearing: 18th March, 2002.

2003 P Cr. L J 1916

[Karachi]

Before Muhammad Sadiq Leghari, J

HANIF and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No-1072 of 2002, decided on 6th September, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.295-B & 506---Bail; grant of---Contents of F.I.R. and copy of Faisla signed by District Nazim, did not indicate offence under S.295-B, P.P.C.---Statements of witnesses recorded under S.161, Cr.P.C. had also shown that none of the witnesses had seen act of defiling etc. of any copy of Holy Qur'an---Said witnesses had simply stated that copies of Holy Qur'an were available in the mosque---Commission of offence under S.295-B, P.P.C., in circumstances, was yet to be proved through evidence during the trial--­Offences against accused under S.506, P.P.C. being punishable with imprisonment for sever' years, embargo under S.497, Cr.P.C. was not attracted---Remaining offences against accused were bailable ---Bail was granted to accused, in circumstances.

Abdul Shakoor A. Abbasi for Applicants:

Qazi Wali Muhammad for the State.

2003 P Cr. L J 1921

[Karachi]

Before Syed Zawwar Hussain Jafferi, J

UBEDULLAH‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1291 of 2002, decided on 16th December, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), Ss.420/406/506‑‑‑Interim pre ­arrest bail, confirmation of‑‑‑Dispute between complainant and accused was of civil nature and complainant had motivated criminal proceedings to pressurize the accused‑‑‑Pre‑arrest interim bail granted earlier to the accused, was confirmed, in circumstances.

Abdul Jabbar Korai for Applicant.

Kazi Wali Muhammad for the State.

2003 P Cr. L J 1925

[Karachi]

Before Syed Zawwar Hussain Jafferi, J

MUHAMMAD AKRAM‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1158 of 2002, decided on 23rd September, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.392‑‑‑Bail, grant of‑‑­Identification test of accused was held through prosecution witnesses and place from where robbed property was recovered was pointed out by the accused‑‑‑Rule of consistency was not applicable in the case of accused as co‑accused was released on bail and no identification test was carried in his case by the eye‑witnesses‑‑‑Bail application, earlier filed by accused, was dismissed by High Court and its dismissal was not challenged before the Supreme Court‑‑‑No fresh material having been brought, High Court declined to consider the application of accused‑‑‑Sufficient evidence was available with the prosecution in respect of accomplicity of accused‑‑­Trial Court had framed charge against accused and tried to proceed with case by issuing bailable warrants to prosecution witnesses in order to procure their attendance‑‑‑No material was on record to show that accused had been involved, on basis of enmity‑‑‑Bail application of accused, was dismissed, in circumstances.

Zahid Hussain Shah v. The State PLD 1995 SC 49; Naveed v. The State PLD 2002 Kar. 320; Nazeer Nadeem v. The State 2002 PCr.LJ 160; Khadim Hussain v. The State 1994 PCr.LJ 1408 and Muhammad Yasir v. The State 1991 PCr.LJ 1217 ref.

Makhdoom Mujtaba Shah for Applicant.

Fazlur Rehman for the State.

2003 P Cr. L J 1960

[Karachi]

Before Wahid Bux Brohi and Rehmat Hussain Jafferi, JJ

YARD and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Special Anti‑Terrorism Jail Appeal No.80 of 2002, decided on 8th November 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 392/411/34‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7(b)‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑D‑‑‑Appreciation of evidence‑‑‑Snatching of vehicle‑‑‑Case against accused was based upon ocular testimony and recovery of property‑‑‑Complainant, as prosecution witness fully supported prosecution case as disclosed in the F.I.R.‑‑­Accused were apprehended in the presence of complainant just after the incident‑‑‑Two Rangers Personnel who were examined as prosecution witnesses had fully supported and corroborated the complainant and their evidence was further supported by Mushir and Investigating Officer before whom accused and the property were produced‑‑‑Statement of complainant was further supported and corroborated by two independent witnesses‑--‑Evidence on record had established beyond any shadow of doubt that vehicle in question was snatched from the complainant on pistol point by three accused persons who were chased by complainant and then by Rangers, just after the incident‑‑‑Vehicle in question was secured from the accused persons and a pistol and six live cartridges were also secured from the possession of main accused‑‑‑All the witnesses were subjected to cross‑examination, but nothing had come on record to discredit their evidence‑‑‑Said witnesses were natural and independent and they had no enmity whatsoever with the accused nor any enmity was suggested to them in cross‑examination‑‑‑Witnesses had no reason, cause or motive to falsely implicate the accused persons with commission of crime‑‑‑Non‑preparation of Mushirnama of arrest and recovery at the place of incident by Rangers Personnel who neither were Police Officers nor they were investigating the case, was not fatal to prosecution case‑‑­Contradictions pointed out by defence were minor in nature and had nothing to do with the main offence and story of prosecution had not been changed through such contradictions‑‑‑Such contradictions had no adverse effect on the prosecution‑‑‑Accused having been apprehended just after the incident, in presence of complainant, identification test was not required to be held and the same carried no weight‑‑‑Quality and not the quantity of evidence would decide the fate of case‑‑‑No adverse inference could be drawn for non‑examination of the taxi driver on whose vehicle the accused were chased‑‑‑Vehicle, in the present case, was snatched on pistol point on the Highway by putting the complainant under fear of instant death or instant hurt‑‑‑Ingredients of robbery as defined under S.390, P.P.C. punishable under S.392, P.P.C. were attracted in the case‑‑Such offence had also been defined under S.7(a) of Anti‑Terrorism Act, 1997 punishable under S.7(b) thereof‑‑‑Exclusive jurisdiction having been conferred upon the Anti‑Terrorism Court to try the offence' of vehicle‑snatching, ordinary Court had no jurisdiction to try the said offence‑‑‑Provisions of Anti‑Terrorism Act, 1997 were to prevail over the general law‑‑‑High Court upheld the conviction of accused in circumstances.

Nazar Ali v. The State PLD 1992 Kar. 140; Muhammad Sadiq Umrani v. Government of Sindh and 3 others PLD 1993 Kar. 735 and Abdul Rasheed v. The State PLD 1996 Kar. 16 ref.

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

‑‑‑‑S. 235(2)‑‑‑Anti‑terrorism Act (XXVII of 1997, S.7(a) & (b)‑‑‑Penal Code (XLV of 1860), Ss.390 & 392‑‑‑Joinder of charges‑‑‑When the offence fell within two or more separate definitions of any law, accused could be charged and tried for each of such offences.

(c) General Clauses Act (X of 1897)‑‑‑

‑‑‑‑S. 26‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7(a) & (b)‑‑‑Penal Code (XLV of 1860), Ss.390 & 392‑‑‑Criminal trial‑‑‑Act or omission if constituted an offence under two or more enactments‑‑‑Offender would be liable to be prosecuted and punished Under either or any of those enactments but would .not be liable to be punished twice for the same offence.

Abdul Shakoor Abbasi for Appellants.

Habib Ahmad, A.A.‑G. for the State.

Dates of hearing: 29th and 31st October, 2002.

2003 P Cr. L J 1971

[Karachi]

Before S. Ali Aslam Jafferi, J

ABDUL QADIR‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Revision No.29 of 2002 and Criminal Revision No.4 of 2001, decided on 23rd October, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 561‑A & 514‑‑‑Application for recalling of order‑‑‑Applicant had sought recalling of order passed by the High Court dismissing revision petition "as not pressed" ‑‑‑Applicant had contended that he had never authorised his counsel not to press revision petition‑‑‑Validity‑‑‑Advocate who was a recognized agent of a party, had right to perform his duties as an agent‑‑‑Nothing was on record to show that Advocate was forbidden by applicant to make any statement‑‑‑Even otherwise order sought to be recalled had shown that statement was not given by the counsel of applicant at the very outset, but he had argued the matter at length and thereafter perhaps being confronted with legal implication in the matter, he made the. said statement‑‑‑No occasion thus, had arisen for filing application for recalling order which on the face of it was misconceived‑‑‑Application merited no consideration and was dismissed.

Applicant in person.

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

2003 P Cr. L J 2031

[Karachi]

Before Sarmad Jalal Osmany, J

Mrs. RAFIA AJAZ and others‑‑‑Petitioners

Versus

Haji MUHAMMAD SHAFI and others‑‑‑Respondents

Criminal Miscellaneous No. 179 of 2001, decided on 24th January, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 145 & 561‑A‑‑‑Application for quashing of proceedings‑‑­Complainant, in his complaint under S.145, Cr.P.C., had stated that an agreement of sale of house owned by applicant was arrived at between him and applicant and that applicant received considerable amount out of total amount of consideration from the complainant and gave possession of the house in question to the complainant and balance of consideration was to be paid at the time of execution of sale‑deed‑ ‑‑Complainant had alleged that applicant had dispossessed him from the house forcibly and. that he was threatened with dire‑consequences, in case, any claim in respect of house was made by the complainant‑‑‑Magistrate issued notice to applicants for their appearance and proceeded to record evidence‑‑­Applicants filed application under S.561‑A, Cr.P.C. for quashing of said proceedings alleging that it was a case of no evidence‑‑‑Applicant had alleged that complainant had failed to pay balance amount of consideration up to the stipulated date‑‑‑Complainant on the other hand could not mention as to when he was given possession of the house which had prima facie shown that possession of house was not at all given to the complainant‑‑‑Order under S.145(1), Cr.P.C. was passed by the Magistrate about one year and nine months prior to the alleged dispossession of the complainant‑‑‑No order for restoration of possession of house could be passed by Magistrate and proceedings before Magistrate could not possibly result in any order for possession and same to that extent would become infructuous‑‑‑Complainant in his cross­ examination had very candidly admitted that he was never given possession at all and also that only his personal effects were lying in the premises‑‑‑Complainant, in circumstance, could not be said to have ever been given possession of house by the applicant‑‑‑Complainant having failed to prove that possession of the house was ever given to him by applicant, no useful purpose would be served to keep the matter lingering on before the Magistrate‑‑‑High Court allowing application; quashed proceedings pending before the Trial Court.

Muhammad Hussain and another v. Muhammad Latif PLD.1984 SC (AJ&K) 19; Muhammad Shafique and others v. Abdul Hayee and others 1987 SCMR 1371; Rafique Ahmad Awan v. The State 1993 MLD 832; Abdul Haque v. The State and another 1973 PCr.LJ 945; Muhammad Uris v. The State 1990 MLD 1583; Muhammad Sharif and others v. Mst. Aisha Bibi 1990 PCr.LJ 811; Muhammad Iqbal Jaffer v. The State and 6 others 1989 PCr.LJ 1089; Muhammad Adam and 2 others v. The State 1993 PCr.LJ 504; Gul Muhammad and others v. Mst. Kubra Begum PLD 1961 (W.P.) Pesh. 76; Nawabuddin v. The State 1968 PCr.LJ 335; Shahra Khan v. Abdul Ghafoor 1968 PCr.LJ 339; Muhammad Shafi v. Additional District and Sessions Judge and others 2002 SCMR 1208 and Noor Muhammad v. The State PLD 1971 Lah. 766 ref.

Z. U. Mujahid for Applicants.

Abdus Salam Baloch for Respondents.

Ejaz Ahmed Memon for the State.

Dates of hearing: 12th December, 2002; 16th and 24th January,

2003 P Cr. L J 12

[Lahore]

Before M.A. Shahid Siddiqui, J, GHULAM HAIDER alias GAAMI‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Revision No.728 of 2001, heard on 28th May, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑Ss. 249‑A. 265‑K, 345, 439 & 517‑‑‑Penal Code (XLV of 1860) S.302/34‑‑‑Acquittal of accused on the basis of compromise‑‑‑Nature cope, status and effect of such acquittal‑‑‑Return of case property‑­accused who was acquitted on the basis of compromise filed application for return of case property/licensed weapons which were taken into possession by police during investigation‑‑‑Said application was dismissed firstly on the ground that the weapons were used in commission of crime and secondly that acquittal of accused being based on compromise and not on merit; accused was not entitled to claim restoration of weapons‑‑­No evidence was available on record that weapons recovered by police from the accused were actually used in commission of crime‑‑‑Acquittal of accused was acquittal whether it was on basis of declaration by a Court on conclusion of trial that some one was not guilty of charges or at any stage under S.249‑A or S.265‑K, Cr.P.C. or on basis of compromise under S.345, Cr.P.C.‑‑‑No distinction thus could be drawn between an acquittal by way of benefit of doubt, acquittal on basis of compromise or under S.249‑A or S.265‑K, Cr.P.C.‑‑‑Whenever a compromise was arrived at with permission of the Court, it had effect of acquittal of accused‑‑‑Accused, acquitted by Trial Court would be entitled to get case property restored‑‑‑Case property was ordered to be delivered to acquitted accused.

Dr. Muhammad Islam v. Government of N.‑W.F.P. and others 1998 SCMR 1993 and 1997 PCr.LJ 500 ref.

Sardar Abdul Majeed Dogar for Petitioner.

Kazim Iqbal Bhangoo for the State.

Date of hearing: 28th May, 2002.

2003 P Cr. L J 30

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman and Bashir A. Mujahid, JJ

MUHAMMAD JAHANGIR‑‑‑Petitioner

Versus

SPECIAL JUDGE, ANTI TERRORISM COURT NO. I, LAHORE and another‑‑‑Respondents

Writ Petition No. 1092 of 2002, decided on 18th September, 2002.

Penal Code (XLV of 1860)‑‑‑-

‑‑‑‑Ss. 302/324/394/ 109/ 148/ 149‑‑‑Anti‑Terrorism Act (XXV II of 1997 ) S.7‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Application for transfer of case from Special Court constituted under Anti‑Terrorist Activities Act, 1997 to an ordinary Court‑‑‑Occurrence had taken place in a thickly populated area in which 8 persons were done to death in 3 different houses at night time while sleeping‑‑‑Act was not of a kind which would not create terror and horror in the locality or any section of the public‑‑‑Such crime did not remain unnoticed in the area to which it was committed or even in the country on account of the print and electronic media‑‑‑Venue of the commission of crime, time of occurrence, motive which had led to the commission of the crime and the act whether the said crime had or had not been witnessed by the public at large were not the only factors to determine jurisdiction‑‑‑Crucial question was whether the said crime had or had not the effect of striking terror or creating fear and insecurity in the public‑‑‑Circumstances of the case were sufficient to bring the case within the jurisdiction of the Special Court‑‑‑High Court in circumstances dismissed the petition.

Syed Zahid Hussain Bokhari for Petitioner.

M.S. Shad for Respondent.

2003 P Cr. L J 47

[Lahore]

Before Bashir A. Mujahid and Mian Muhammad Jahangir, JJ

MUHAMMAD NADEEM‑---Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.250 of 2001, heard on 16th May. 2002.

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

‑‑Arts. 3/4‑‑‑Control of Narcotic Substances Ordinance (VI of 1995) SS.9(C) & 16(2)‑‑‑Appreciation of evidence‑‑‑Punishment in lieu of default of payment of fine‑‑‑Reduction‑‑‑Accused was sentenced to life imprisonment and fine of Rupees one million and in default of payment of amount of fine, he had to undergo 3 years' R.I.‑‑‑Accused who had already served out his entire sentence and was undergoing sentence fur non‑payment of amount of fine, had prayed that punishment of fine be reduced adequately as same was too harsh‑‑‑Accused was alleged to card Charas weighing 1450 grams‑‑‑Keeping in view quantity and nature of narcotics recovered from possession of accused which was not dangerous, accused, deserved leniency in the matter of punishment‑‑ Punishment in lieu of fine which was six years and three months, was converted into that was already undergone by the accused as he had already suffered enough.

Malik Abdul Qayyum Khan for Appellant.

Raja Muhammad Saeed Akram and Syed Sajjad Hussain Shah Asstt. A.-G. for the State.

Date of hearing: 16th May, 2002.

2003 P Cr. L J 56

[Lahore]

Before Ch. Ijaz Ahmad and Syed Sakhi Hussain Rukhari, JJ

MUHAMMAD ASLAM‑‑‑Appellant

Versus

DEPUTY COMMISSIONER, SIALKOT and 2 others‑‑‑Respondents

Intra‑Court Appeal No.319 in Writ Petition No.9546 of 1995, decided on 20th March, 2002.

(a) Punjab Anti‑Corruption Establishment Rules, 1985‑‑‑

‑‑‑‑Rr. 5, 6, 7 & 8‑‑‑Constitution of Pakistan (1973), Arts.13 & 199‑‑­Law Reforms Ordinance (XII of 1972), S.3‑‑‑Intra‑Court Appeal‑‑­Successive inquiries initiated against appellant were dropped‑‑=Direction of Authority to register case against appellant was challenged in Constitutional petition‑‑‑High Court dismissed Constitutional petition observing that investigation was always in the nature of an enquiry, and appellant had not alleged that Authority directing registration of case had in law no power to do so‑‑‑Validity‑‑‑Impugned order showed that matter was , still at a preliminary stage, thus, High Court had no jurisdiction to entertain Constitutional petition ‑‑‑Intra‑Court Appeal was disposed of with directions to Investigating Officer to record counter­ version of appellant and then proceed in the matter in accordance with law.

Turaj Ahmad Khan v. D.I.‑G. Police PLD 1982 Lah. 464 and Anwar Ali Khan v. Wahid Bux 1991 SCMR 1608 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court ‑‑‑Scope‑‑­Investigating Agency, role of‑‑‑High Court has jurisdiction only to interpret the law, but has no jurisdiction whatsoever to take the role of an Investigating Agency.

Zia‑ur‑Rehman's case PLD 1973 SC 49 ref.

(c) Words and phrases‑‑‑

-----“Prosecution “ means judicial determination of the guilt or innocence of an accused.

Naqibullah and another v. The State PLD 1978 SC 121; Muhammad Abbas v. The State PLD 1990 SC 642 and Ismail A. Rehman v. Muhammad Sadiq PLD 1990 Kar. 286 ref.

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

‑‑‑‑S. 156‑‑‑Investigation‑‑‑Duty of Investigating Officer/Agency‑‑‑Not to investigate the matter in such a manner as to connect the accused with offence, but to proceed in a way as to bring the truth to surface to save innocent persons from agony of endless investigation and trial.

Malik Noor Muhammad Awan for Appellant.

Nemo for Respondents.

Date of hearing: 20th March, 2002.

2003 P Cr. L J 60

[Lahore]

Before Ijaz Ahmad Chaudhry, J

ALTAF HUSSAIN and another‑‑‑Appellants

Versus

MUHAMMAD BUX and 4 others‑‑‑Respondents

Criminal Appeal No.786 of 2001, heard on 18th September, 2002.

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

‑‑‑‑S. 417‑‑Penal Code (XLV of 1860), Ss.337‑A(4)/337‑L(2)/34‑‑­Appeal against acquittal‑‑‑Contradictions were borne out from the statements of the complainant and the eye‑witness‑‑‑Such contradictions were not minor discrepancies but related to material points, viz. the exact place of occurrence and the seeing of occurrence by three other witnesses who had been attracted to the occurrence‑‑‑No recovery had been effected from the accused during investigation‑‑‑No material was available to support the ocular account which was also not consistent‑‑‑High Court declined to interfere with order of acquittal passed by the Trial Court for the reasons that criteria laid down for the appeal against acquittal was entirely different from that of appeal against conviction and as per principle laid down by the Supreme Court:

State through Advocate‑General, Sindh. Karachi v. Farman Hussain and others PLD 1995 SC 1 and State v. Muhammad Sharif and 3 others 1995 SCMR 635 ref.

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

‑‑‑‑S. 417‑‑‑Appeal against acquittal‑‑‑Principle‑‑‑Presumption of double innocence arises after the acquittal of the accused in his favour‑‑‑Order of acquittal can only be interfered with if miscarriage of justice has been done and reappraisement of evidence will not be sufficient for interference in appeal.

Muhammad Usman and 2 others v. The State 1992 SCMR 489 ref.

Khan Khuda Bakhsh Khan for Appellants.

Nemo for Respondents.

Date of hearing: 18th September, 2002.

2003 P Cr. L J 75

[Lahore]

Before Ch. Ijaz Ahmad, J

JEREMY FRANKEL, GENERAL MANAGER, AVARI HOTEL, LAHORE-Petitioner

Versus

THE STATE- -Respondent

Criminal Revisions Nos.232 and 231of 1998, decided on 29th April, 2002.

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

----Ss. 439(5) & 412---Revision, maintainability of---Under provisions of S.439(5), Cr.P.C. though no revision could be entertained at the instance of a party who could have appealed, where appeal lay under Criminal Procedure Code, but where appeal was barred in cases such as where accused was convicted on his plea of guilty revision would be entertained---Revision pending before Court since long could not be dismissed on technical grounds.

Bulo khan and another v. The State PLD 1967 Kar. 608; Jamal Din and another v. The State 1975 PCr.LJ 650 and Karam Ilahi v. The State 1975 PCr.LJ 902 ref.

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

----Ss. 164, 242 & 243---Confession, recording of---Need for care and caution---Principles---Scheme of law (Ss.242 & 243, Cr.P.C.) suggests to take necessary precautions while recording confession of accused because same was likely to result in his conviction---Confession by itself having not been deemed sufficient, Legislature had ensured that words uttered by accused should be reduced into writing to assess whether such words or language was compatible with alleged charge so as to constitute confession and Court had the discretion to convict accused on such confession or to proceed to record evidence---Such precautions were enforced as occasionally confession was made under pressure, coercion, temptations and influences of external forces---Court had to be alert and careful while recording conviction of accused on basis of confession.

(c) West Pakistan Pure Food Ordinance (VII of 1960)---

----Ss. 8(23) & 23(1)11---Criminal Procedure Code (V of 1898), Ss.242, 243 & 439---Appreciation of evidence---Conviction on confession--­Accused was present in Court at the time the charge was framed against him and accused pleaded guilty and statement of accused in that respect was recorded---Questions were put to the accused to the effect as to whether he had heard and understood substance of charge framed against him and his reply was in the positive---Accused at no stage of case raised any objection or otherwise indicated that he pleaded guilty to charge under any pressure, inducement, threat, or misunderstanding regarding any question of fact---If an accused voluntarily pleaded guilty to a charge, Trial Court could accept the same and act upon it and convict him without recording prosecution evidence---Accused in circumstances was rightly convicted and sentenced.

Abdul Rashid v. The State 1989 PCr.LJ 2203; Muhammad Latif v. The State 1989 PCr.LJ 1252; Tariq alias Babu v. The State 1992 PCr. LJ 1575 and Nazar Ahmad v. The State PLD 1975 Lah. 304 ref.

(d) Criminal trial---

---- Plea of guilty----Conviction of accused---If an accused had voluntarily pleaded guilty to a charge Trial Court could accept and act upon the same and convict him without recording prosecution evidence.

Tariq Kamal for Petitioner.

Kh. Muhammad Afzal for Respondents.

2003 P Cr. L J 87

[Lahore]

Before Tassaduq Hussain Jilani and Asif Saeed Khan Khosa, JJ

BEGUM RIFFAT AHAD‑‑‑Petitioner

Versus

NAB through Chairman and 4 others‑‑‑ Respondents

Writ Petition No. 16893 of 2002, heard on 2nd October, 2002.

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

‑‑‑‑S. 5‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Declaration was sought by the petitioner that the arrest of her husband and his continued detention was without lawful authority‑‑­Validity‑‑‑No reference had been filed by the State Bank of Pakistan against the petitioner's husband nor any issue was pending with the State Bank rather the question of recovery of defaulted loan was pending before the Cooperative Judge who could determine the final liability of the petitioner's husband‑‑‑Sum of Rs.28,00,000 had been deposited by the petitioner's husband on account of which his nomination papers were accepted and he was allowed to contest the General Elections‑‑­Contention that the petitioner's husband was not provided with the grounds and substance on the basis of which he was arrested had been controverted specifically by the Deputy Prosecutor‑General NAB but copies of those grounds had not been placed on record,‑Lather the same had not even been brought on record as to who was the complainant in the case which was likely to be filed against the petitioner's husband‑‑­Deputy Prosecutor‑General NAB, on a Court query had submitted that the detenu secured loan on insufficient securities and the Enquiry officer would like to lay his hands on those documents for completion of Reference‑‑‑Earlier application filed by the Punjab Cooperative Board for Liquidation had clearly shown that the Board was in full knowledge of all the documents on the basis of which loan was secured‑‑‑Not taking exception to the fact that the Enquiry Officer could always associate the detenu in any enquiry or investigation, High Court allowed the petition and issued orders to release the detenu as no useful purpose would be served for keeping him in detention any further and prima facie the procedure adopted and the detention were not in accord with the mandate of law.

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

‑‑‑‑S. 24(d)‑‑‑Constitution of Pakistan (1973), Arts.199 & 10‑‑­Constitutional petition‑‑‑Essential prerequisite of arrest‑‑ ‑Furnishing of grounds of arrest is not only a requirement of S.24(d) of the NAB Ordinance but is also mandated in Art. 10 of the Constitution of Pakistan (1973) which is mandatory in nature and has to be complied with in letter and spirit.

Messrs Kaloodi International v. Federation of Pakistan PLD 2001 Kar. 311; Rashid Ahmad v. The State PLD 1972 SC 271; Abdul Qadir v. Federation of Pakistan 2000 SCMR 1478 and Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 ref.

S.M. Zafar for Petitioner.

Jawaid Shaukat Malik, Deputy Prosecutor‑General, NAB for Respondents.

Date of hearing: 2nd October, 2002.

2003 P Cr. L J 97

[Lahore]

Before Ijaz Ahmad Chaudhry, J

SIKANDAR HAYAT‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 156 of 2000, heard on 28th August, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Grave and sudden provocation, plea of‑‑‑Prosecution had succeeded in proving the case against the accused that he while armed with Khanjar like knife had given single blow on the left side of the chest of the deceased which was sufficient to cause death in the ordinary course of nature‑‑‑Eye‑witnesses were residents of the same locality. having no previous enmity to falsely implicate the accused‑‑‑Accused had admitted his presence at‑the spot and causing of injury ‑with Chhuri on the person of the deceased but only with difference of circumstances‑‑‑Defence had sought alteration of conviction of accused under S.302(b), P.P.C. to that under S.302(c), P.P.C. on ground of grave and sudden provocation‑‑‑Contention of the defence was repelled as the accused had not appeared before the police immediately after the occurrence and remained absent for eight days and then raised the plea that altercation had taken place on the matter of a woman but had not given the details before the Investigating Officer as had been given subsequently at the trial by him‑‑‑Accused had not stated before the Investigating Officer that he had snatched the Chhuri from the deceased and had given a single blow with the said Chhuri‑‑‑Record, on the other hand established that the accused had been in possession of Chhuri in his Naifa and had given a fatal blow on the person of the deceased‑‑‑Most of the questions regarding the defence plea were stated to be incorrect by the Investigating Officer‑‑‑Improved version given by the accused during the trial could not be accepted unless supported by some material or record‑‑‑Defence plea was not borne out from the record‑‑‑Defence had failed to gain anything as regards plea of grave and sudden provocation from the cross‑examination of the prosecution witnesses‑‑‑Trial Court had already taken lenient view by not awarding capital punishment to the accused in circumstances‑‑‑Conviction and sentence awarded to the accused was maintained.

Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274; Muhammad Amjad v. The State 2000 MLD 20; Abdul Wahab alias Rehra v. The State 1999 SCMR 1668; Raza Mohsin Qazilbash and others v. Muhammad Usman Malik and another 1999 SCMR 1794; Mohib Ali v. The State 1985 SCMR 2055 and Ghafoor Ahmad v. The State 1995 SCMR 236 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.119‑‑‑Defence plea‑‑­Burden of proof‑‑‑Accused is not expected to prove the defence plea in the manner the prosecution has to prove its case but it has to bring something on record which should substantiate his plea of defence if it is not borne out from the evidence as the onus under. Art.119 of Qanun‑e­ Shahadat, 1984 is upon him as he has alleged that the occurrence had taken place in a different manner than what has been stated by the prosecution witnesses.

Asghar Ali for Appellant.

Anwar Tiwana assisted by War Iqbal Chaudhry for the Complainant.

Date of hearing: 28th August, 2000.

2003 P Cr. L J 110

[Lahore]

Before Ijaz Ahmad Chaudhry and M.A. Shahid Siddiqui, JJ

SAFDAR JAMEEL‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1183 of 1999 and 24/J of 2000, ,heard on 4th September, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/397/34‑‑‑Appreciation of evidence‑‑‑Eye‑witnesses were consistent on material points and had stood the test of cross­-examination‑‑‑Both the eye‑witnesses were residents of the same locality and their presence at the spot was not at all. doubtful‑‑‑Eye‑witnesses had no motive to falsely implicate the accused persons‑‑‑Ocular evidence had been corroborated by a promptly lodged F.I.R. ‑‑‑Consequent upon the lodging of F.I.R. a wireless message had been immediately conveyed which was received by different raiding parties who were standing at the barriers and apprehended the accused on the same day immediately after the occurrence while in possession of the weapons which had been used by them during the occurrence‑‑‑Separate F.I.R. had been registered in that connection against two of the accused persons at a different police station‑‑‑Weapons recovered from two of the accused persons were positively connected with the crime‑empties recovered from the spot as per Forensic Science Laboratory's Report‑‑Medical evidence was not in contradiction with the ocular account as it was not possible to see with bare eyes that how many shots had actually hit the deceased out of the total fired with rifle and then from pistol‑‑‑Merely because all 9 fire‑arm injuries found on the person of the deceased were not entry wounds as the prosecution witnesses had specifically stated that nine shots were fired and hit the deceased, medical evidence could not be said to be in contradiction with the ocular evidence as it could not be said with certainty with bare eyes as to how many fires had actually hit the deceased‑‑‑No mitigating circumstances were available on the record‑‑‑Accused had acted in a cruel manner; conviction and sentences passed against the accused were maintained in circumstances.

Haji Muhammad Rafi Siddiqui and Malik Muhammad Azam for Appellants (at State expenses).

Mian Maqbool Alam for the Complainant.

Date of hearing: 4th September, 2002.

2003 P Cr. L J 119

[Lahore]

Before Ch. Iftikhar Hussain. J

RASOOL BAKHSH‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1842/B of 2002, decided on 15th August, 2002.

Criminal Procedure Code (V of 1898)—­

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑­ Accused had not been named in the F.I.R. and was incriminated. Through a supplementary statement made by the complainant‑‑‑No overt act qua the deceased had been attributed to the accused who was shown armed with a pistol at the spot at the time of occurrence‑‑‑Police investigation had found the accused innocent as regards the incident‑‑‑No recovery had been effected from the accused‑‑‑Case of the accused calling for further enquiry into his guilt, he was granted bail.

Zafar Iqbal v. The State 2000 YLR 2091 ref.

Tariq Mehmood Farrukh for Petitioner.

Ejaz Ahmad Khan for the State.

2003 P Cr. L J 130

[Lahore]

Before Ijaz Ahmad Chaudhry, J

ABDUL HAMEED KHALID‑‑‑Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Home Secretary, Civil Secretariat, Lahore and another‑‑‑Respondents

Writ Petition No. 13790 of 2002, decided on 26th August, 2002.

West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)‑‑‑

‑‑-‑S. 5‑‑‑Constitutibn of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Preventive detention‑‑‑Petitioner had challenged detention order passed by Home Secretary of the Provincial Government ‑‑‑Validity‑‑­Petitioner had been put in preventive custody on account of a report dated 23‑2‑2002 made by the S.H.O. according to, which, the Petitioner had allegedly arranged a meeting of a banned religious organization secretly during which it was mutually agreed to paralyse the District Administration on a certain day‑‑‑Said report was based on secret information received by the S.H.O.‑‑‑Other reports were also of similar type‑‑‑Detention of the petitioner on basis of the said report was not sustainable as it had reflected only an ‑apprehension of the S.H.O., which was subsequently found incorrect as no action had been taken by the petitioner in order to paralyse the District Administration on the said day‑‑‑No material had been placed on record to show that in pursuance of the secret meeting any terrorist activity had been made by any member of the said religious organization nor any suspect had been arrested who was engaged in such activities‑‑‑No document had been placed on, record to show that any action was ever taken by the petitioner to endanger public peace and tranquillity‑‑‑Report in question was earlier in time than the illegal detention dated 18‑7‑2001 by the S.H.O. for about 5 days whereby the petitioner had been released on the application of his father under S. 491, Cr.P.C. before the District and Sessions Judge Who ‑had found his detention illegal and unlawful‑‑‑Possibility was that the father of the petitioner who had filed the petition had incurred the wrath of the S.H.O., who in turn, in order to teach a lesson to the petitioner and his father, had made a report to the Home Department for detention of the petitioner‑‑‑Criminal case pending against the petitioner alone could not be made basis for passing the impugned order‑‑‑No sufficient material had been placed on record for maintaining the order of detention of the petitioner‑‑‑Impugned order had been passed on extraneous grounds‑‑‑High Court in circumstances declared the impugned order as illegal and coram non judice and consequently set it aside.

Muhammad Ayaz Khan and 6 others v. District Magistrate 1995 PCr.LJ 587 rel.

Masal Khan v. District Magistrate PLD 1997 Pesh. 148 ref.

Malik Noor Muhammad Awan for Petitioner.

Muhammad Shan Gul for A.‑G.

2003 P Cr. L J 140

[Lahore]

Before Ch. Iftikhar Hussain, J

Mst. NAUREEN‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 2080‑B of 2002. decided on 15th August, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence. of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18‑‑‑Bail, grant of‑‑‑Bare reading of the F.I.R. had shown that the allegation against the accused simply constituted preparation to commit Zina‑‑‑Preparation stage being prior to attempt to commit Zina, offence under S.18 would only be constituted when there was an attempt‑‑‑Was yet to be seen if the accused could be held liable of the offence under S.18 of the said Ordinance or come other offence‑‑‑Case of the accused called for further enquiry into her guilt‑‑‑Age of the accused as per School Leaving Certificate produced before the Court was less than 12 years at the time of the alleged incident‑‑‑On the ground of facts as well as her being under 16 years, first proviso to S.497(1), Cr.P.C. was also attracted‑‑‑Accused was accordingly granted bail.

Saif Ullah Khan and Muhammad Nawaz Khan for the Petitioner.

Syed Altaf Hussain Bukhari for the State.

2003 P Cr. L J 151

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD SALEEM alias PASHA and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1003‑B of 2002, decided on 27th June, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.324/34‑‑‑Bail, grant of‑‑­Accused had been found innocent in the investigation by S.P. Range Crimes as well as A.S.P./S.D.P.O.‑‑‑Said officials had found the complainant to be in fact the real culprit‑‑‑Perusal of the copy of the order passed by Additional Sessions Judge had reveled that the said Additional Sessions Judge, while declining pre‑arrest bail to the complainant in the case had ,observed that the complainant had subsequently been found by the police to be the' actual culprit as he had made fire shot which hit the injured of ‑the case‑‑‑No reasonable grounds existed to believe that the accused persons had committed a non‑bailable offence‑‑‑Case of the accused persons called for further enquiry under 5.497(2), Cr.P.C., they were granted bail.

Mian Muhammad Ashraf Salimi for Petitioners.

Tariq Mehmood Joiya for the Complainant.

Syed Altaf Hussain Bukhari for the State:

2005 P Cr. L J 159

[Lahore]

Before M.A. Shahid Siddiqui, J

MUKHTARAN BIBI alias KALO BIBI‑‑‑Petitioner

Versus

S.H.O., POLICE STATION PHOOL NAGAR DISTRICT KASUR and 2 others‑‑‑Respondents

Writ Petition No. 14742 and Civil Miscellaneous Application No.3 of 2002, decided on 28th August, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Recovery of minor‑‑‑Petitioner had sought recovery of her suckling daughter aged 1‑1/4 years from the custody of her ex‑husband and it was not possible to determine the exact age of the alleged abductee but she was not more than 2 years of age as admitted by the respondent's father himself‑‑‑Minor, should not be deprived of the natural love and affection of her real mother‑‑‑Right of the minor to be in the custody of her mother even if it was assumed that the petitioner herself had relinquished the custody of her minor daughter for obtaining divorce‑‑‑Minor's right. to remain in the custody of her mother does not terminate unless she is held disentitled to retain the custody of the minor‑‑‑High Court, in circumstances, ordered the minor to be given in the custody of the petitioner immediately and allowed the petition.

Sheikh Hamad Danish for Petitioner.

Kashif Nawaz for Respondent No.3.

2003 P Cr. L J 167

[Lahore]

Before Ch. Iftikhar Hussain. J

MUHAMMAD JAMSHED‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.1921/B of 2002, decided on 15th August 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10 & 16‑‑‑Bail, grant of‑ ‑‑Prosecution had alleged that the accused had enticed away a married woman and both had indulged in Zina‑‑‑Accused had contended that the said woman was not married to any one else except to him‑ ‑Both sides had produced Nikahnamas to support their contentions and it was a case of two Nikahs‑‑‑Lady had gone to competent Family Court for declaration of her Nikah with the person other than the accused ‑as forged and fictitious and thus ineffective‑‑‑Family Court had yet to deliver verdict in respect of the same ‑‑‑Co‑accused had also owned her Nikah with the accused‑‑‑No direct evidence of Zina was available against the accused‑‑‑Question whether accused ‑could be held liable for the alleged offence or not was open to further enquiry and as such case of the accused was covered under S.497(2), Cr.P.C.‑‑‑Accused was accordingly granted bail.

Muhammad Javed Iqbal Adum for Petitioner.

Muhammad Shahzad for the State.

2003 P Cr. L J 175

[Lahore]

Before Ch. Iftikhar Hussain, J

NAZAR MUHAMMAD‑‑---Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.1974/B of 2002, decided on 15th August, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑ Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Penal Code (XLV of 1860), 5.161‑‑‑Bail, grant of‑‑‑Accused had been behind the bars for the last about one month and 20 days‑‑‑Accused was no more required for further investigation by the police‑‑‑Offence alleged against accused did not fall within the prohibitory clause of S.497(1), Cr.P.C.‑‑‑Challan against the accused had not yet been submitted in the Trial Court‑‑‑Accused was accordingly granted bail by the High Court.

Muhammad Shabbir v. The State 1986 PCr.L1 197; Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Kodomal and another v. The State 2001 PCr. LJ 1789; Pirzada Bashir Ahmad Shah v. The State 2002 PCr.LJ 168; 1975 SCMR 244; Muhammad Akram. and another v. The State 1993 PCr.LJ 1333; Gulzar Hussain Noon v. The State 1992 PCr.LJ 628 and Imtiaz Ahmad and others v. The State PLD 1997 SC 545 ref.

Sardar Mehboob for Petitioner.

Zafar Mahmood Anjum for the State.

2003 P Cr. L J 180

[Lahore]

Before Ijaz Ahmad Chaudhry, J

GHULAM ABBAS ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 255 and Criminal Revision No. 182 of 1997, heard 3n‑ 27th August, 2002.

Penal Code (XLY of 1860)‑‑‑

‑‑Ss. 302/148/149‑‑‑Appreciation of evidence‑‑‑ Deceased was brother of the complainant and both had been accused in a murder case of the brother of the accused/appellant and his co‑accused who were tried for the same but acquitted on account of compromise effected between the parties in lieu of payment of money as Badl‑e‑Sulh and demand of the hand of a lady‑‑‑Motive as alleged in the F.I.R. was the only reason for the commission of the offence‑‑‑Enmity had been established between the parties and it seemed that some dispute had arisen about the giving of hand of said lady and suit for dissolution of marriage had also been filed‑‑‑Statements of the eye‑witnesses could only be relied upon if independent corroboration was available on record to substantiate their, evidence connecting the accused with the commission of the crime‑‑­Recovery of pistol itself could not provide independent corroboration as empties had not been recovered from the spot‑‑‑Brother‑in‑law of the deceased who had been cited as an eye‑witness in the F.I.R. and real sister of the deceased had made statements before the D.S.P./ S.D.P.O. that the occurrence had not taken place in the manner stated in the F. I. R. ‑‑‑Presence of the prosecution witnesses at the place of occurrence was doubtful and there was contradiction in their statements‑‑‑In the absence of any corroborative evidence, it was not safe to rely upon the statements of eye‑witnesses for the conviction of the accused on the charge of capital punishment upon the same evidence which had not been relied upon for the conviction of the other co‑accused who had already been acquitted by the Trial Court‑‑‑Prosecution having failed to prove the case against the accused beyond any doubt. High Court acquitted the accused giving him benefit of doubt.

Bashir Abbas Khan on behalf of Masood Mirza for Appellant.

Ch. Muhammad Afzal Wahla for the Complainant.

Date of hearing. 27th August, 2002.

2003 P Cr. L J 185

[Lahore]

Before Mian Muhammad Jehangir, J

UTILITY STORE CORPORATION, GOVERNMENT OF PAKISTAN through Regional Manager, Utility Store Corporation, Rawalpindi Region, Mode) Town, Islamabad‑‑‑Appellant

Versus

MUHAMMAD NAZIR KHAN and another‑‑‑Respondents

Criminal Appeal No. 206 of 2002, heard on 7th August, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 409‑‑‑Criminal Procedure Code (V of 1898), Ss.417 & 540‑‑­Appeal against acquittal‑‑‑Accused had allegedly embezzled Rs.21,38,941.45 in the store during his tenure‑‑‑Trial Court had found that the material ingredients of S.405, P.P.C. could not be proved; that it could not be established from the record as to when exactly the accused left the store while proceeding on leave; that who thereafter had been running and operating the store‑‑‑Prosecution had failed to establish entrustment of articles to the accused and did not prod6ce incharge of the warehouse who had handed over the articles to the truck driver who in turn had delivered the same to the accused‑‑‑Such persons were not even associated in investigation nor cited as prosecution witnesses in the calendar of witnesses and that the lists of articles in token of receipt of goods had not been rendered in investigation and when these short­comings in the prosecution case had been brought into picture by the defence counsel then applications under S.540, Cr.P.C. had been moved at the belated stage‑‑‑Trial Court had found that prosecution had failed to bring on record convincing evidence to connect the accused with the commission of offence and that mere shortage in the store was not sufficient to constitute the entrustment and misappropriation personally and physically by the accused alone‑‑‑Perusal of the record had shown that first application moved by the prosecution under S. 540, Cr.P.C. had not mentioned any witness who could prove that at different stages who had supplied the articles of the store running under the supervision of the accused even the truck driver who had brought (lie articles at the store was not mentioned. similarly the statements. showing delivery and receipts of the articles had not been mentioned‑‑‑Second application under S.540, Cr.P.C. had been moved by the prosecution after submission of final arguments stating therein that the store accountant alongwith the documents in question could not be produced. therefore, for the just decision of the case the Store accountant alongwith the documents he allowed to be produced ‑‑‑High Court set aside tire order of the. Trial Court with direction to decide the case afresh for the reasons that if the articles had been delivered to tile accused from the warehouse through the truck driver, then oral and documentary evidence was available and even such type of material directly or indirectly seemed to be available on the record. but it could not be summoned because of negligence‑‑‑Duty of the Courts under S.540. Cr.P.C. was to sift grain from. the chaff because there could be no other responsible for misappropriation except the incharge of the warehouse or the incharge of tire store‑‑‑Court must record the statements of such witnesses even as Court witnesses in evidence of tile witnesses appeared to be essential for first decision of the case and by doing so an opportunity to both tile parties should be given tier cross‑examining the witnesses and if' any incriminating material came on the record it should he put to the accused by recording supplementary statement under S.342. Cr.P.C.

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

‑‑S. 540‑‑‑Interpi‑eiati, n of 5.540. Cr.P.C.‑‑‑Summoning of witnesses as Court witnesses‑‑‑Powers of the Court‑‑‑So far as the first part of 5.540. Cr.P.C. is concerned the word "may" has been used to reflect on the discretion of the Court showing that the Court is empowered to summon any person as a witness during an inquiry, trial or other proceedings‑‑‑" During at any inquiry, trial or other proceedings" means at any stage before tile conclusion of the inquiry or trial which would mean that when an application is moved by any party for summoning; a person as a witness it should not be observed that the application has been moved at the belated stage and such observation may he recorded if inquiry and trial have been concluded‑‑‑So fair as the second part is concerned, the word "‑shall" has been used for summoning a person as a witness if it appears that the evidence of such a person is essential to the just decision of the case meaning thereby that if' there is a material witness whose evidence would Have effect on the fate of the case, such ,witness must he summoned before the conclusion of inquiry and trial‑‑‑If the arguments are heard during inquiry and trial it dotes not mean the inquiry and trial or other proceedings have been concluded‑‑‑Such aspects would be considered to be concluded if the judgment or order is announced.

Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95; State v. Muhammad Yaqoob and others 2001 SCMR 308: Muhammad Mehdi v. State and 4 others 2000 MLD 193: Makhhoor Hussain and 2 others v. Tazarab Hussain and another 2001 PCr.LJ 1046; Manzoor Ali v. State 1998 PCr.LJ 2042; Bashir Ahmad v. State 1985 PCr.LJ 864; Khalid Hamid v. The State 1985 PCr.LJ 836: The Sate v. Attaullah 1990 PCr.LJ 163 and Mst. Safdar Jan v. State and another 1997 PCr.LJ 1553 ref.

Muhammad Bashir Kiyani for Appellant.

Raja Altaf Hussain Satti for Respondent No. 1.

Ch. Ghulam Muhammad for the State.

Date of hearing: 7th August, 2002.

2003 P Cr. L J 202

[Lahore]

Before Mian Muhammad Jahangier, J

ABDUL SHAHID QURESHI‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No 633/13 of 2002, decided on 30th July, 2002.

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

‑‑‑‑Ss. 51 & 9(c)‑‑‑Criminal Procedure Code (V of 1898), S.497‑‑‑Bail, grant of‑‑‑Jurisdiction‑‑‑Perusal of S.51 of the Control of Narcotic Substances Act, 1997 shows that there is a bar on grant of bail in an offence which is exclusively punishable with death‑‑‑When the upper limit of the punishment is death and the lower limit is 14 years' imprisonment 'as in the offence under S.9(c) of the said Act there is no bar on the grant of bail‑‑‑Bail is barred when the offence under Control of Narcotic Substances Act, 1997 or under any law connected with the narcotics is exclusively punishable with death.

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

‑‑‑‑S. 497‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss.9(c)/ 14/ 15‑‑‑Bail, grant of‑‑‑Investigating Agency had cited both the accused as prosecution witnesses despite the fact that all necessary Export Documents were provided by both the accused‑‑‑Trial Court at the time of framing of the charge had observed that in fact these two persons were accused in the case on basis of the tentative assessment‑‑‑No denial from both the accused that they had not provided the Export Documents to their co‑accused from whose possession a huge quantity of narcotics was recovered‑‑‑Prima facie both the accused were connected with allegation of facilitating the commission of offence under S.9(c) of the Act which being so had attracted the provisions of Ss. 14 & 15 of the said Act‑‑‑Offence alleged against the accused falling within the prohibitory clause of S.497, Cr.P.C., they were refused bail by the High Court.

Muhammad Hanif Khan v. The State 2001 PCr.LJ 19: Shaukat Ali Shah v. The State 1999 YLR 1286; Maqbool Ahmad and another v. The State and another 1997 PCr. LJ 1074; Ghulam Sarwar V. The State NLR 1985 UC 396; Muhammad Aslam v. The State 2002 PCr. LJ 110 and Rafaqat Ahmed v. The State 1999 YLR 2627 ref.

Mumtaz Hussain Bazmi for Petitioner.

Taufique Asif for Petitioner (in Criminal Miscellaneous No.712‑B of 2002).

Mirza Abdul Rahman. Special Prosecutor, A. N. F.

M.D. Shehzad for the State.

2003 P Cr. L J 206

[Lahore]

Before Rustam Ali Malik, J

DILSHAD HUSSAIN ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 47 of 1992, heard on 31st July, 2002.

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

‑‑‑‑S. 464‑‑‑Penal Code (XLV of 1860), S.295‑B‑‑‑ Procedure in case of accused being lunatic‑‑‑Non‑compliance, effect‑‑‑Trial Magistrate had admitted the accused to bail by relying on the Medical Certificate issued by the Medical Superintendent but had not adopted the procedure prescribed under Chap. XXXIV of the Cr.P.C.‑‑‑Contention that during the trial no one had brought the said provision of law to the notice of the trial Magistrate was repelled as the trial Magistrate was himself expected to be aware of the procedural law‑‑‑During the trial the accused or his counsel had not taken the plea that the accused was of unsound mind and consequently was incapable of making his defence‑‑‑Accused had replied in cross‑examination that he was perfectly alright and was not having the fits of insanity although he was having some mental ailment and had remained under treatment‑‑‑Nothing was on record to the effect that during the trial the accused was incapable of making his defence‑‑‑Period of more than 12 years having already elapsed after .the occurrence, it appeared appropriate to decide the case on merits, on the basis of the evidence on record rather than sending same back for a re‑trial‑‑‑Only evidence available with the prosecution was that of extra‑judicial confession before the prosecution witnesses‑‑‑Said witnesses had stated that they had not themselves seen the accused throwing away copy of the Qur'an‑e‑Pak in the nullah‑‑‑Such was another reason for not remanding the case to the Trial Court because if it had been done, only evidence which the prosecution might be producing again, would be that of `extra‑judicial confession'‑‑‑No prejudice had been caused to the prosecution, if the Trial Court had not followed the prescribed procedure, while from the side of the accused re‑trial had not been requested‑‑‑High Court proceeded to decide the appeal on merits on the basis of the evidence on record rather than sending the same back for a retrial.

(b) Penal Code (XLV of 1860)‑‑‑--

‑--‑‑Ss. 295‑B & 84‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 40‑‑­Appreciation of evidence‑‑‑Retracted confession‑‑‑Case against the accused was of retracted confession in. which no other evidence was available on record to prove the charge‑‑‑Question was as to whether conviction could be recorded on the basis of a retracted confession if there was no other corroborative evidence on record‑‑‑Not permissible in Islam to inflict punishment on an accused person ‑if he retracted from the confession allegedly made by him‑‑‑Accused had taken the plea that he was a true Muslim and could not even think of defiling the Holy Qur'an‑‑‑Convicting a Muslim on the charge under S.295‑B, P.P.C. to imprisonment for life when he had clearly denied the charge and claimed that he was a true Muslim and could not even think of such an act and when the only evidence available with the prosecution was that of extra­ judicial confession, would be clearly without any lawful justification‑‑‑No Muslim could even think of saying or claiming before his fellow Muslims that he had shown any disrespect to the Holy Qur'an, if any one did so such a person could not be in sound mental health-‑‑Report of the Medical, Superintendent had lent support to the view that if it was believed that accused had actually made such a statement before the witnesses, he must be suffering from a fit of insanity at that particular lime which was covered by S.84, P.P.C.‑‑‑Prosecution had not been able to prove the charge against the accused beyond reasonable doubt‑‑‑High Court issued orders to acquit the accused by giving him benefit of doubt.

Ijaz Ahmed Chaudhry for Appellant.

Mian Muhammad Bashir, A.A.‑G. with Niaz Ahmed Shah for the State.

Date of hearing: 31st July, 2002.

2003 P Cr. L J 221

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman and Bashir A. Mujahid, JJ

GHULAM MUSTAFA‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 565 in Murder Reference No. 317 of 1998, heard on 18th September, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

----S. 302/34‑‑‑Appreciation of evidence‑‑‑Witness‑‑‑Credibility of‑‑‑Test of credibility of a witness is neither his relationship or friendship with either side nor his mere presence at the scene of offence at the time of occurrence but it is the worth of his testimony valued on the established judicial norms which finally proves or disproves his partiality or impartiality as a witness.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑Eye‑witnesses alongwith the deceased had visited the house of the sister of the deceased to inquire about her health which was a very natural conduct and their presence at the spot was normal and plausible‑‑‑Presence of the eye‑witnesses at the time of occurrence was proved beyond any shadow of doubt‑‑‑Medical evidence had also supported the ocular account as the duration, nature and locale of the injuries as narrated by the witnesses had stood affirmed by the medial evidence‑‑‑Promptness in lodging of the F.I.R. giving all details of the occurrence also corroborated the prosecution case‑‑­Recovery effected from the accused in the shape of his licensed pistol had also matched with the crime empties recovered from the spot‑‑‑High Court, in the peculiar circumstances of the case, upheld the death sentence awarded to accused by the trial Court, and conviction of the accused was maintained.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑S. 302/34‑‑-Appreciation of evidence‑‑‑Motive‑‑‑Significance‑‑‑When premeditated and cold‑blooded murder is committed and the same is established by irrefutable evidence, motive does not play any active role‑‑‑Even if the. motive is not proved it could not be ground to discard the unimpeachable evidence‑‑‑Proof of motive is not a legal requirement for awarding maximum sentence‑‑‑Contention of the accused that since the prosecution had failed to prove the motive part of its case, the maximum sentence of death could not be awarded, was repelled in circumstances.

Muhammad Ilyas v. State PLD 2001 SC 333 and Imtiaz Ahmad The State 2001 SCMR 1334 ref.

Muhammad Ahmad Saleemi for Appellant.

Sh. Khalid Habib for the State.

Date of hearing: 18th September, 2002.

2003 P Cr. L J 233

[Lahore]

Before Mian Muhammad Jahangir, J

Sardar MUHAMMAD AMIR KHAN, ADVOCATE‑‑‑Petitioner

Versus

DISTRICT AND SESSIONS JUDGE, ATTOCK and another‑‑‑Respondents

Criminal Miscellaneous No. 20‑T of 2002, decided on 29th August, 2002.

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

‑‑‑‑Ss. 526 & 561‑A‑‑‑Penal Code (XLV of 1860), S.506‑‑‑Transfer of bail application‑‑‑Bail application of the accused pending in the Court of Additional Sessions Judge, was sought to be transferred to any Court of competent jurisdiction outside the District‑‑‑Petitioner had alleged that the judiciary in the entire District was under influence of the District Na4m and was thus against the accused‑‑‑Involvement of District Nazim and the position of the accused as President of the Bar Association might have created bitter situation outside the Court but the District Nazim could not have any influence over any Judicial Officer nor could it be expected that the Judicial Officer would be having social contacts with the political figures in the District‑‑‑High Court found that the ground urged by the accused for transfer of his bail application was devoid of any force and allegations made were baseless‑‑‑High Court transferred the bail application of the accused to the Court of the Sessions Judge with a direction to dispose of the same after hearing both the parties.

Khuda Bakhsh v. The State 1997 SCMR 1383 and Tahir Mahmood v. The State 1997 PCr.LJ 565 ref.

(b) Administration of justice‑‑‑-

-----Responsibility of the Sessions Judge‑‑‑Whenever the‑situation is tense in view of the facts and circumstances of the case it is the responsibility of the Sessions Judge to proceed in the matter with iron hand and should not transfer or allocate such‑like cases to an Additional District and Sessions Judge, but he should jump into the river himself.

Razzaq A. Mirza for Petitioner.

Sardar Zaheer Ahmad Khan for the Complainant.

2003 P Cr. L J 242

[Lahore]

Before Ch. Iftikhar Hussain and Muhammad Khalid Alvi, JJ

Mst. MANAN alias NAZIR MAI ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1 in Criminal Appeal No. 278 of 2002, decided on 19th September, 2002.

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

‑‑‑‑Ss. 426 & 497‑‑‑Control of Narcotic Substances Act (XXV of 1997), 9(b)‑‑‑Application for suspension of sentence‑‑‑Accused being a woman had already been granted post‑arrest bail by the High. Court on the ground that her husband had been murdered and she had 5 children to look after, eldest of them at the time being hardly 13 years old‑‑­Principles which governed grant of bail under S.497, Cr.P.C. would be applicable to the convict under S.426, Cr.P.C. for suspension of sentence‑‑‑High Court, in circumstances, allowed the petition and suspended the sentence of the convict pending disposal of her appeal.

Mst. Zahida Bibi and others v. State 2002 PCr.LJ 1035 ref.

Mian Riaz Hussain for Petitioner/Appellant

Syed Anwar‑ul‑Haq Shah for the State. .

2003 P Cr. L J 244

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

RASOOL BUX‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.200/Q/BWP of 2001, heard on 7th October. 2002.

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

‑‑‑‑S. 173‑‑‑"Challan"‑‑‑Connotation‑‑‑Courts should not be hampered with the technicalities of a challan or a final report of investigation under 5.173, Cr.P.C., both are one and the same thing according to the scheme of things in Cr.P.C.‑‑‑Term "challan" does not exist anywhere in the Cr.P.C.‑‑‑Final report of investigation which police is liable to submit before Criminal Court is spoken of in S.173, Cr.P.C.‑‑‑Generally this final report of investigation is known or referred to as "challan"‑‑­Whatever may be the finding of Investigation Agency about the innocence or otherwise of the accused, the same is to be produced before the Criminal Court by preparing or filing report under S.173. Cr.P.C.‑‑‑In an appropriate case Court can take cognizance of the case and summon the accused person to face trial even if the police has not recommended for his trial under S.173, Cr.P.C. [p. 247] A (b) Criminal Procedure Code (V of 1898)‑‑­‑‑‑‑S. 561‑A‑‑‑Penal Code (XLV o; i860), S.302/34‑‑‑Quashing of proceedings‑‑‑Accused had been found innocent during police investigation, but the police had submitted report under S.173, Cr.P.C. against the accused placing !hem in Column No.2 of the challan report‑‑­Accused had submitted application under S.265‑K, Cr.P.C. which had been dismissed by the Additional Sessions Judge‑‑‑Validity‑‑‑High Court had earlier allowed a writ petition directing that the accused be challaned before the Court of Session‑=‑By moving the present petition accused had practically sought to review the order so passed in the said Constitutional petition which was not open for' review‑‑‑Order so passed by the High Court had not been challenged before the Supreme Court‑‑‑Even if said order passed by the High Court had been tentative in nature yet the order requiring the accused to be challaned and tried before the Court of Sessions had become final and was not open to review by the High Court‑‑‑Trial Court has to decide the case on its own merits on conclusion. of trial‑‑‑Impugned order passed by the Additional Sessions Judge not suffering from any illegality, High Court dismissed the petition.

Mahfooz Ahmad v. Additional Sessions Judge PLD 2000 Lah. 136; PLD 1985 SC 62 and Ahmad Nawaz v. State 2001 MLD 1330 ref.

Mumtaz Hussain Bazmi for Petitioner.

Abdul Rasheed Rashid for the Complainant.

M.A. Farazi for the State.

Date of hearing: 7th October, 2002.

2003 P Cr. L J 248

[Lahore]

Before Muhammad Farrukh Mahmud and Farrukh Lateef, JJ

MUHAMMAD TARIQ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.505 of 2002, decided on 20th August, 2002.

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

‑‑‑‑S. 9(b)‑‑‑Appreciation of evidence‑‑‑Investigating Officer had admitted in his cross‑examination that when he reached the place of occurrence complainant/A. S.‑1. had produced before him two parcels of opium which he had inspected and found that the seals had not been affixed on the said parcels‑‑‑Complainant had stated that after drifting the complaint he had handed over the same to a constable and had sent him to police station for registration of F.I.R.‑‑‑Time of recovery mentioned in the complaint was 8‑25 p.m. while according to the F.I.R. the same had been registered at 9‑00 p.m. within 35 minutes‑‑‑Perusal of the F.I.R. had shown that the distance between the place of recovery and the police station was about 13 miles‑‑‑Investigating Officer in his examination‑in‑chief had stated that the complaint had been handed over to him while he was on patrolling duty and he had received the information at about 9‑30 p.m. ‑‑‑Prosecution witness who had been sent to the police station for registration, of F.I.R. had not said anything about receiving of complaint and taking the same to the police station‑‑‑Said prosecution witness had not mentioned about his meeting with the Investigating Officer who had ostensibly completed the investigation on the night of occurrence‑‑­Prosecution witnesses had come out with different and fantastic answers as regards the service of light‑‑‑No private individual had been made a witness of the recovery proceedings although place of recovery was close to a Government tubewell‑‑‑Police had fabricated the complaint, F.I.R. and recovery memo. and no proceedings had been recorded at the place of recovery‑‑‑Time of registration of F.I.R. had also been manipulated‑‑‑Material contradictions existed in the statements of the prosecution witnesses who were all police officials‑‑‑Prosecution evidence was replete with doubts‑‑‑Conviction and sentence passed against the accused were set aside and he was acquitted of the charge by giving him benefit of doubt.

Abdul Rasheed Bodla for Appellant.

Iftikhar Ibrahim Tahir for the State..

Date of hearing: 20th August, 2002.

2003 P Cr. L J 260

[Lahore]

Before Muhammad Farrukh Mahmud, J

ALLAH WASAYA‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent , Criminal Appeal No.523 of,2001, heard on 16th August, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/324/34‑‑‑Appreciation of evidence‑‑‑Both the eye‑witnesses were residents of a place situated at a distance of 23 miles from the place of occurrence‑‑‑Such witnesses were unable to advance any reason as to why they made up their minds to visit the deceased on the fateful night‑‑­Both the eye‑witnesses had not stated that the accused knew about the conspiracy‑‑‑Nothing was on record to show that the accused had the knowledge that his brother had made up his mind to kill the deceased on the fateful" night‑‑‑Prosecution had failed to bring on record any evidence that the accused knew .or shared the intention of the principal accused, his elder brother‑‑‑Both the eye‑witnesses had never met the accused earlier to the occurrence and had never previously visited the house where the occurrence took place ‑‑‑F.I.R. had been registered after a delay of about 5/6 hours‑‑‑Eye‑witnesses were closely related to the deceased and had not acted in a natural manner at the time of occurrence as they had stood silent and had not attempted to save the life of the deceased‑‑‑Not a single witness had been cited from the neighbourhood or the locality‑‑‑Dying declaration of the deceased woman had not advanced‑the case of the prosecution qua the accused as she had not ascribed any overt act to the accused‑‑‑Accused was acquitted in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/324/34‑‑‑Appreciation of evidence‑‑‑Motive‑‑‑No independent witness had been cited to support the motive‑‑‑Eye‑witnesses had stated about the motive, they had not named the accused specifically in the F.I.R. that he had a motive, on the other hand during cross‑examination it had been suggested that the main co‑accused on the night of occurrence had discovered the deceased man to be present in the room of the deceased lady his brother's wife, therefore, due to sudden provocation while armed with pistol he had fired at them‑‑‑Male deceased could not escape and was hit when he was in the compound‑‑‑Place of occurrence had not been challenged‑‑‑Blood‑stained earth had also been collected from the place of occurrence‑‑‑Evidence showed that on the night of occurrence husband of the deceased woman was not sleeping in the room with her . rather he had been sleeping in the cattle‑shed‑‑­Medical evidence and recovery‑‑‑Medical evidence had not supported the case of the prosecution vis‑a‑vis the accused who had not fired at any one‑‑‑No recovery had been effected from the accused‑‑‑Conviction and sentence passed against the accused was set aside in the circumstances and he was acquitted of the charge.

Sardar Altaf Hussain Khan for Appellant.

Masood Sabir for the State.

Date of hearing: 16th August, 2002.

2003 P Cr. L J 266

[Lahore]

Before Tassaduq Hussain Jilani and Asif Saeed Khan Khosa, JJ

Makhdoom JAVED HASHMI‑‑‑Petitioner

Versus

THE STATE and 2 others‑‑‑Respondents

Writ Petition No. 18067 of 2002, decided on 11th November, 2002.

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

‑‑‑‑Preamble‑‑‑Object of the‑National Accountability Bureau Ordinance, 1999‑‑‑Natural justice, canons of‑‑‑Applicability‑‑‑Accountability of holders of public office is a commendable endeavour‑‑‑Notwithstanding the noble objectives reflected in the preamble of the NAB Ordinance, if the exercise is to inspire confidence it must be across the board, transparent and regulated by canons of natural justice and the law declared by the superior Courts‑‑‑Accused is presumed to be innocent unless proved otherwise‑‑‑Initial burden of proof; in a trial under the NAB Ordinance, continues to be on the prosecution and it is only when it has rendered a reasonable ,proof before the Trial Court qua the guilt of an accused that the onus shifts on the accused to prove his innocence by showing that the properties were acquired through lawful means.

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

‑‑‑‑Ss. 9(v) & 16‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Bail, grant of‑‑‑Corruption and corrupt practices‑‑‑Accused had been in custody for the last more than one year and out of sixty‑one witnesses cited by ~ the prosecution only nineteen witnesses had been examined thus for notwithstanding the explicit provision of S.16 of the NAB Ordinance which provided that the case would be heard from day to day and disposed of within 30 days‑‑‑Seven out of thirteen charges against the accused pertained to "Benamidars"‑‑­Deputy Prosecutor‑General was not sure as to how many prosecution witnesses would be given up and how many would be examined‑‑‑Only after the recording of the entire prosecution evidence the accused would put up his defence‑‑‑Even the "Benamidars" might have to be produced in defence or made a party in view of the judgment of ‑the Supreme Court‑‑‑When the prosecution had yet to ermine a major part of its evidence or the petitioner had yet to enter his defence, the fate of the trial would hang in balance‑‑‑Accused during his period of custody had contested the election for the seat of National Assembly, his nomination papers had been scrutinized, objections had been repelled and he had stood elected as member of the National Assembly‑‑­Accused had to attend the Session of the National Assembly as a legislator and had to represent his constituency‑‑‑If the opportunity to attend the Session of the Parliament was not given to the accused it would be denial of his right to represent the people and his constituents would go unrepresented, which would be violative of their Constitutional rights ‑‑‑Accused's name had already been placed on the Exit Control List, therefore, there were no chances of absconding of the accused‑‑­Accused was granted bail by the High Court in the peculiar circumstances of the case.

(c) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑--

‑---‑S. 9(b)‑‑‑Criminal Procedure Code (V of 1898), Ss.426, 491, 497, 498 & 561‑A‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional jurisdiction of High Court ‑‑‑Scope‑‑‑Vires of Constitution‑‑‑High Court can exercise its powers under Art. 199 of the Constitution to grant bail in appropriate cases‑‑‑Ouster clause of the National Accountability Bureau Ordinance, 1999 had been specifically attended to by the Supreme Court and it had categorically reiterated that the powers of the superior Courts under Art. 199 of the Constitution remained available to them to their full extent notwithstanding anything contained in any legislative instrument enacted by the Chief Executive of Pakistan whereas S.9(b) of the NAB Ordinance purported to deny in all Courts, including the High Courts, the jurisdiction under Ss.426, 491, 497, 498 & 561‑A or any other provision of the Code of Criminal Procedure or any other law for the time being in force to grave bail to any person accused of an offence under the NAB Ordinance‑‑‑Superior Courts had the power to grant bail under Art. 199 of the Constitution independently of any statutory source of jurisdiction such as S.497 of the Cr.P.C.‑‑‑Section 9(b) of the NAB Ordinance to that extent was ultra vires the Constitution.

Khan Asfandyar Wali and, others v. Federation of Pakistan and others PLD 2001 SC 607 rel.

(d) Bail‑‑‑

‑‑‑‑Concept‑‑‑Concept of pre‑trial release of the accused was developed on three presumptions; firstly the accused was presumed to be innocent till he was found guilty; secondly the accused should have a right to prepare his defence and prove his innocence before the Court of trial; and thirdly the accused should not be punished before the finding of his conviction was rendered by the Court.

Shahida Faisal v. NAB 2001 SCMR 294; Syed Mehdi v. NAB 2002 SCMR 282; Ch. Tanveer Khan v. Chairman, National Accountability Bureau PLD 2002 SC, 572; Anwar Saifullah v. The State and others PLD 2000 Lah. 564; Anwar Saif Ullah Khan v. The State 2001 SCMR 1040 and Khan Asfandyar Wali and others v. Federation of Pakistan and others PLD 2001 SC 607 ref.

Muhammad Akram Sheikh for Petitioner.

Javaid Shaukat Malik, Dy. Prosecutor‑General, NAB.

2003 P Cr. L J 273

[Lahore]

Before Iftikhar Hussain Chaudhry, J

MUHAMMAD JAVAID‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 155 of 2001, heard on 9th July, 2002.

Penal Code (XLV of 1860)‑‑‑-

‑‑‑Ss. 302(b)/324/148/149‑‑‑Appreciation of evidence‑‑‑Prosecution case vas supported by evidence of motive‑‑‑Ocular account of incident was furnished by two prosecution witnesses‑‑‑One pf those prosecution 1tnesses had a shop near the place of occurrence, was a young person and did not have any relations with complainant party and had no enmity with accused either and in those circumstances his testimony could not be rejected on any count‑‑‑Testimony of said witness alone was sufficient for recording conviction of accused‑‑‑Testimony of said independent witness coupled with other evidence sufficed to establish affirmatively prosecution case against accused‑‑‑Conviction and sentence recorded by Trial Court was found to be appropriate in the facts and circumstances of the case.

N.A. Butt for Appellant.

Haji Muhammad Akram Nasir for the State.

M. Asghar Khan Rokhari for the Complainant.

Date of hearing: 9th July, 2002.

2003 P Cr. L J 310

[Lahore]

Before Khawaja Muhammad Sharif, J

SIKANDER HAYAT and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.326‑J and Criminal Revision No.800 of 2001, heard on 15th August, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b)/394/201/404‑‑‑Appreciation of evidence‑‑‑Dead body of the deceased was recovered after two months when he was taken by one of the accused with him on the pretext that deceased wanted to purchase a motorcycle‑‑‑Real brother of deceased who alongwith prosecution witness had last seen the deceased, neither lodged any report at any police station for recovery of his missing (deceased) brother for a long period of two months nor approached the High Court through Constitutional petition for registration of case against culprits‑‑‑Brother of deceased did not submit any application to any higher Police Officer in that regard, even F.I.R. in the case was lodged by a stranger after two months and not by real, brother of the deceased‑‑‑Such fact had demolished the prosecution story‑‑‑All prosecution witnesses were closely related to the deceased and no independent witness had been produced by the prosecution‑‑‑Dead body was not recovered on pointation of the accused‑‑‑Conduct of witnesses of extra‑judicial confession allegedly made by accused was most unnatural‑‑‑Registration book, identity card allegedly recovered from the accused seemed to be planted on him‑‑‑Real brother of deceased in his statement recorded under, S.161, Cr.P.C. did not mention recovery of silver ring and clothes of the deceased‑‑‑Even State Counsel did not support prosecution case whole‑heartedly‑‑‑Case was full of doubts and benefit of doubt would always go to accused not as a grace, but as a right‑‑‑Extending benefit of doubt to accused order passed by: Trial Court was set aside and accused were ordered to be released.

Siddiqa Altaf Khan for Appellants.

Mian Sikandar Hayat for the Complainant.

Kh. Shaukat Ali for the State.

Date of hearing: 15th August, 2002.

2003 P Cr. L J 318

[Lahore]

Before Rustam Ali Malik, J

Mst. SAKINA BIBI‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3481/B of 2002, decided on 11th June, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(1), first and second provisos‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/13/14/18‑‑‑Bail, grant of‑‑­Accused had not been apprehended at the spot as she allegedly managed to escape‑‑‑Boy and girl found in the house of accused who allegedly were trying to commit Zina had already been admitted to bail‑‑‑Accused being a woman was also entitled to concession of bail on that ground as well‑‑‑Case of accused was one of further inquiry‑‑‑No useful purpose could be served by keeping accused in judicial lock‑up for an indefinite period‑‑‑Accused was admitted to bail.

Nafeer A. Malik for Petitioner.

Muhammad Ali Dogar for the State.

Date of hearing: 11th June, 2002.

2003 P Cr. L J 324

[Lahore]

Before Karamat Nazir Bhandari and Ijaz Ahmad Chaudhry, JJ

SHAUKAT KHAN and 2 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.72/J and 365 of 2001, heard on 5th June, 2002.

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

‑‑‑‑S. 9(c)‑‑‑Appreciation of evidence‑‑‑Both prosecution witnesses had made consistent statements on material points‑‑‑Counsel for accused had failed to point out any discrepancy on material points in statements of said witnesses and minor discrepancies pointed out in their statements were not sufficient to discredit their statements which otherwise were consistent and natural‑‑‑No enmity or grudge had been alleged against those witnesses to falsely implicate accused in the case‑‑‑Accused had been apprehended at the spot and factum of recovery of 75 kilograms Charas and 8 kilograms of opium had been proved‑‑‑Accused who was driver of car from which narcotics were recovered had taken a specific stand; he had admitted his presence at the scene of recovery and had also admitted that he was the driver of the car‑‑‑Said accused had stated that co‑accused who ran away from the spot had taken him from his house to ‑accompany him and that when they were going in the car, Charas and opium in question were recovered from underneath rear seat and from the carbon of the doors‑‑‑Accused who was driving the car being aware of presence of Charas and opium being transported on the car, his conviction under S.9(c) of Control of Narcotic Substances Act, 1997 was maintained‑‑‑Accused who was driver of the car and not proved to be owner of recovered Charas and opium, at the most had played role of carrier and real owner had not been apprehended by police; taking lenient view his death sentence was reduced to life imprisonment ‑‑‑Co‑accused two ladies who were also travelling in the car had stated that they had simply took lift on car and were not aware of fact on of presence of Charas and opium in that car‑‑‑Their statements were supported by statement of prosecution during cross‑examination‑‑‑Prosecution having failed to prove case against said two ladies by producing witness about their involvement in the case alongwith other co‑accused, they were acquitted of charge.

1997 SCMR 15 and 2000 PCr.LJ 1536 ref.

Nek Nawaz Klan for Appellants.

Syed Mukhtar Sheerazi for the State.

Date of hearing: 5th June, 2002.

2003 P Cr. L J 329

[Lahore]

Before Raja Muhammad Sabir, J

Ch. MUHAMMAD ASLAM‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous N0.934/B of 2000, decided on 15th November, 2000.

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

‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.392/412‑‑‑Offence Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Accused who was 59 years of age had not participated in the occurrence‑‑‑Only a computer was recovered from the accused during investigation‑‑‑Investigating Officer had stated that accused was not involved in any other case‑‑‑Accused who was an aged man was behind the bars for the last more than a month‑‑­Trial of. case was likely to take considerable long period‑‑‑Question whether offence under S.412 or 411, P.P.C. was attracted in the case, would only be determined after recording evidence by Trial Court‑‑‑Case being that of further inquiry qua involvement of the accused, accused was admitted to bail, in circumstances.

Ghazanfar Ali Khan for Petitioner.

Tariq Bilal for the State.

Date of hearing: 15th November, 2000.

2003 P Cr. L J 331

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeem Ullah Khan Sherwani, JJ

RIASTA alias NANHA‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.249 of 1997 and Murder Reference No.397 of 1998, heard on 1st August, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑S. 302(a)‑‑‑Appreciation of evidence‑‑‑Both eye‑witnesses in their statements had stated with exactitude about the time and circumstance: under which deceased was taken away by accused‑‑‑Eye‑witnesses made no material contradiction in their statements‑‑‑Eye‑witnesses did not appear to be tutored witnesses, and they had sufficient means for gaining correct information of the incident‑‑‑Defence counsel in cross­ examination of eye‑witnesses tried to elicit facts favourable to the case of accused, but he failed to create any serious dent in evidence of eye­witnesses‑‑‑Eye‑witnesses had sufficiently explained their behaviour and presence at the spot‑‑‑Holding deceased by co‑accused not appearing reasonable, statements of eye‑witnesses in that regard were not acted upon out of abundant caution and they were extended benefit of doubt‑‑­Accused, who was carrying a carbine, made a straight shot at deceased hitting his chest‑‑‑Accused made only one shot and did not repeat act of firing‑‑‑Motive appeared to be very weak‑‑‑Recovery evidence was no, creditworthy and had been wrongly acted upon by Trial Court‑‑‑Eye witnesses being natural and having justification to be available at .spot. were wholly reliable‑‑‑Accused was rightly adjudged guilty by Trial Court, but his conviction under S.302(a), P.P.C. was not legal and was converted into one under S.302(b), P.P.C.‑‑‑Sentence awarded to accused vas somewhat severe‑‑‑Case was of single shot with no background o seep rooted enmity‑‑‑Both recovery and motive were not proved ‑‑‑Death sentence awarded to accused was converted into imprisonment for life it circumstances.

Muhammad Arshad and others v. The State PLD 1996 SC 122 ref.

Ch. Muhammad Hussain Chhachhar and Mazhar Iqbal Sindhu for Appellant.

Abaid‑ur‑Rehman Masood for the State.

Date of hearing: 1st August, 2002.

2003 P Cr. L J 340

[Lahore]

Before Ijaz Ahmad Chaudhry, J

WAJEHUL HAQ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2197/B of 2002, decided on 7th May, 2002:

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.295‑A, 295‑C, 298 & 298‑A‑‑‑Bail, grant of‑‑‑Serious. allegation was made against accused who was named in F.I,R.‑‑‑Offence under 5.295‑C, P.P.C. was punishable with death‑‑‑Letters addressed to complainant allegedly written by accused in which filthy abusive language had been used against Holy Prophet (p.b.u.h.) were sent to Handwriting Expert with specimen of handwriting obtained from accused and report had been received back which was positive‑‑Other evidence was statements of witnesses who had deposed before Court as prosecution witnesses about extra‑judicial confession made by accused‑‑‑Other evidence produced by prosecution had provided sufficient ground to believe that accused, prima facie, was guilty of offence falling within purview of S.497(1), Cr. P.C. and accused had failed to bring it within purview of S.497(2), Cr.P.C.‑‑‑Accused also having remained fugitive from law, had lost his normal rights and about half of prosecution witnesses had been recorded by Trial Court‑‑‑Bail application having no merits, was dismissed.

2001 PLR 1438 and 201 PCr.LJ 1003 ref.

Pervez Aslam Ch. for Petitioner.

Syed Mukhtar Sherazi for the State.

Muhammad Ismail Qureshi in person.

Date of hearing: 7th May, 2002.

2003 P Cr. L J 347

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD YOUSAF‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Revision No.412 of 2002, decided on 14th May, 2002.

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

‑‑‑‑S. 514‑‑‑Abscondence of accused‑‑‑Forfeiture of surety bond‑‑­Procedure‑‑‑Non‑observance or violation of procedure‑‑‑Effect‑‑‑Accused having absconded, Court, without issuing formal show‑cause notice to surety of accused requiring him to explain as to why a penalty should not be imposed upon him, straightaway issued non‑bailable warrant for arrest of surety and warrant of attachment of his immovable property, which was against provisions of S.514, Cr.P.C.‑‑‑Provision of S.514, Cr.P.C. had contemplated attachment of only movable property of surety‑‑­Different steps as contemplated by S.514, Cr.P.C. also were not taken by Trial Court‑‑‑Procedure contemplated under S.514, Cr.P.C. was meant to safeguard the interests of a citizen so that he could advance proper explanation in the matter and could seek indulgence of Court in given circumstance of a particular case‑‑‑Procedure contemplated by provisions of S.514, Cr.P.C. was mandatory in nature and non‑observance or violation of said procedure, would set at naught the order passed thereunder‑‑‑Procedure adopted by Court in the case could not be defended as the same had clearly militated against express and mandatory requirements of 5.514; Cr.P.C.‑‑‑Order passed by Trial Court was set aside and case was remanded for holding proceedings against surety under S.514, Cr.P.C. afresh.

Sanwan and another v. The State PLD 1965 (W.P.) Kar. 516; Wilayat Hussain v. The State PLD 1967 Kar. 826; Mst. Sairan alias Saleema v. The State PLD 1970 SC 56 and Abdul Razzaq v. The State PLD 1978 Kar. 579 ref.

(b) Administration of justice‑‑‑-

‑‑‑‑ Nobody should try to be wiser than law‑‑‑Where law required a thing to be done in a particular manner, it must be done in that manner alone or not at all.

Ch. Ali Muhammad for Petitioner.

Ishaq Ahmad Chaudhry for the State.

Date of hearing: 14th May, 2002.

2003 P Cr. L J 354

[Lahore]

Before Bashir A. Mujahid and M.A. Shahid Siddiqui, JJ

MANZOOR AHMAD ‑‑‑ Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.372 of 1995, and Murder Reference No.327 of 1997, heard on 19th February, 2002.

Penal Code (XLV of 1864)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Sentence, reduction in‑‑­Accused was nominated in promptly recorded F. I. R. ‑‑‑Complainant and prosecution witness though were closely related inter se, but had no animosity against accused for his false implication or substitution by letting off real culprit‑‑‑Both witnesses were consistent in their statements, and in their lengthy cross‑examination, no material discrepancy had been brought on record to discard their testimony‑‑­Evidence of truthful witnesses could not be discarded on basis of their mere relationship inter se‑‑‑Deposition of eye‑witnesses had been corroborated by medical evidence‑‑‑Contention of accused that it was an unwitnessed night occurrence had no force‑‑‑Recovery of weapon of offence was immaterial as no empty was taken into possession by Investigating Officer from the spot and gun recovered from accused was also not found in working condition as per report of Forensic Science Laboratory‑‑‑Recovery of gnn, in circumstances, was of no consequence‑‑‑Prosecution case had otherwise been established against accused by ocular account furnished by prosecution witnesses fully corroborated by medical evidence‑‑‑Conviction recorded against accused by Trial Court could not be interfered with, in circumstances‑‑‑Motive as alleged had not been proved‑‑‑Absence or weakness of motive was not considered as ground for awarding lesser penalty, but when motive had been set up by prosecution, then onus lay upon the prosecution to prove the same‑‑‑Investigating officer having not investigated motive properly and F.I.R. also having not been recorded at Police Station straightaway, presumption was that same was registered after preliminary investigation‑‑‑No independent/impartial witness from neighbourhood was examined by prosecution‑‑‑Case against accused was not fit to maintain capital punishment of death in circumstances‑‑‑Maintaining conviction, death sentence awarded to accused by Trial Court was altered to imprisonment for life to meet ends of justice.

Feroze Khan v. The State 2002 SCMR 99 .ref.

Eram Sajjad Gull for Appellant (on State expenses).

Muhammad Aslam Khokhar for the State.

Date of hearing: 19th February, 2002,

2003 P Cr. L J 363

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD EJAZ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2506/B of 2001, decided on 12th November, 2001.

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

‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.337‑A(i), 337‑A(iii) & 337‑H(ii)‑‑‑Bail, grant of‑‑‑None of the offences mentioned in F.I.R. fell within ambit of prohibitory clause of S.497, Cr.P.C.‑‑‑Grant of bail, in such cases; should be a rule and refusal an exception‑‑‑Accused was admitted to bail, in circumstances.

Tariq Bashir v. State PLD 1995 SC 34 ref.

Rana Jahanzeb Khan for Petitioner.

Muhammad Aslam Budh for the State.

Date of hearing: 12th November, 2001.

2003 P Cr. L J 369

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD IQBAL‑‑‑Petitioner

Versus

THE STATE and 2 others‑‑‑Respondents

Criminal Miscellaneous No.7576/C/B of 2001, decided on 7th January, 2002.

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

‑‑‑‑Ss. 497 & 498‑‑‑Grant of bail before arrest and after arrest‑‑­Considerations for‑‑‑Considerations for grant of bail before arrest and after arrest are totally different.

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

‑‑‑‑S. 497(5)‑‑‑Bail, cancellation of‑‑‑Considerations‑‑‑Three considerations were available before Trial Court while granting bail to accused persons that accused were found, innocent and were placed in a Column No.2 of the challans that no crime empty was taken into possession from the spot; and that no recovery of any fire‑arm was effected from the accused persons‑‑‑High Court would not interfere in discretionary order passed by Trial Court, unless same was arbitrary, capricious and against record which defects were not present in the present case‑‑‑In absence of any ground for interference in judgment of Trial Court, petition for cancellation of bail granted to accused, was dismissed.

Pervaiz Inayat Malik for Petitioner.

Date of hearing: 7th January, 2002.

2003 P Cr. L J 372

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman, J

ASMA BIBI‑‑‑Petitioner

Versus

SUPERINTENDENT OF POLICE, GUJRANWALA and 8 others‑ ‑Respondents

Writ Petition No. 15254 of 2002, decided on 1st November, 2002.

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

‑‑‑Ss. 4 & 10‑‑‑Constitution of Pakistan (1973), Art. 199 ‑‑‑ Constitutional petition‑‑‑Quashing of F.I.R.‑‑‑Petitioner had prayed for quashing the F.I.R. on the ground that she had been neither abducted nor subjected to Zina‑bil‑Jabr by anybody; that the petitioner being sui juris had contracted marriage with the respondent with her own free‑will and consent and that her Nikahnama had been duly registered at the relevant office‑‑‑Petitioner had alleged that the impugned F.I.R. had been got registered mala fidely by her father after distorting true facts‑‑‑Petitioner had filed her affidavit in support of her plea‑‑‑Record had established that the petitioner was real niece of the wife of the respondent and that the respondent had contracted second marriage with the petitioner during the existence of his first marriage‑‑‑Question was as to whether a person could contract second marriage with the niece of his wife who was still in his Nikah and that consummation of said marriage would make them guilty of offence falling within the ambit of S.10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979‑‑‑Applying the formula that if one of the said two ladies was presumed io be a male then Nikah between both of them would be invalid, marriage of the petitioner with the respondent which was later in time was not a valid marriage‑‑‑Prima facie the act of sexual intercourse committed by the petitioner with the respondent in lieu of said Nikaii was nothing but commission of Zina falling within the purview of S.4 read with S.10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979‑‑‑Grounds for quashing of F.I.R. were devoid of force‑‑‑Constitutional petition was dismissed in circumstances.

Holy Qur'an: Surah‑Al‑Nisa, Verse 23; Sahih Bukhari Sharif, vol. III translated by Hafiz Qari Muhammad Adil Khan Naqshbandi and Qari Muhammad Fazal Qureshi, Chap. No.57; Maarf‑ul‑Qur'an by Aaulana Mufti Muhammad Shafie Vo1.II, p.362; Nukaat‑ul‑Qur'an, Vol. II, p.1077 by Maulana Abdur Rehman, lamia Ashrafia, Lahore; Tafheem‑ul‑Qur'an, Vol.I p.339 by Maulana Abul A'la Maudoodi; Dars­ul‑Qur'an by Idara Islaaho Tableegh, Lahore, p.528; Al‑Qur'an Kareem printed by Shah Fehd Qur'an Kareem Printing Complex, Kingdom of Saudi Arabia and Kunzul Eiman Fil Tarjamat‑ul‑Qur'an, p.817 by Maulana Ahmad Raza Khan Qadri ref.

Muhammad Shareef for Petitioner. .

Ch. Muhammad Abdul Saleem for Respondent No.3.

Sardar Muhammad Ramzan vice Zahid Saleem for Respondent No.4.

M. Bilal Khan, Addl. A.‑G.

2003 P Cr. L J 382

[Lahore]

Before Bashir A. Mujahid, J

MUHAMMAD ASLAM‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.6650/B of 2002, decided on 14th October 2002.

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

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/11‑‑‑Bail, grant, of‑‑‑Allegations against the accused had been found to be false during the police investigation‑‑‑Discharge report qua, the accused had already been prepared and submitted before a Court of competent jurisdiction‑‑‑Case of the accused requiring further inquiry, he was granted bail.

Amir Shahbaz Mir for Petitioner.

Sardar Bilal Ahmad for the State.

2003 P Cr. L J 385

[Lahore]

Before Asif Saeed Khan Khosa, J

AKBAR ALI ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.5183/B of 2002, decided on 13th September, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10, 11 & 16‑‑‑Penal Code (XLV of 1860), S.380‑‑‑Bail, grant of‑‑‑Allegation regarding forcible abduction of a woman prima facie appeared to be inconsistent with the factum of alleged illicit liaison between the accused and‑the alleged enticee/abductee as mentioned by the complainant in the F.I.R. itself and the fact that the woman in question had allegedly taken some jewellary and cash with her while leaving the complainant's house‑‑‑Medical‑legal certificate as to allegations of Zina­-bil‑Jabr had not disclosed any marks of violence on any part of woman's body‑‑‑Positive report of the Chemical Examiner regarding the said woman's vaginal swabs was not of much avail to the prosecution as the said lady was admittedly a married woman living with her husband‑‑­Alleged abductee had secured her release privately and had appeared before the Investigating Officer on her own‑‑‑No stolen article had been recovered from the custody of the accused‑‑‑Mere travelling of a person with a lady in a rickshaw in a crowded place does not by itself give rise to inference regarding such lady's enticement or abduction‑‑‑Statement of the alleged abductee under S.164, Cr.P.C. had been recorded after a delay of four days after her private recovery‑‑‑Allegations of Zina‑bil-Jabr with the lady were levelled only by the lady herself‑‑‑Alleged abductee, according to her statement under S.164, Cr.P.C. had been travelling with the accused and his co‑accused and had stayed with them at crowded places without raising alarm‑‑‑Conduct of the woman (alleged victim) had cast a doubt on the entire prosecution story ‑‑‑Challan of the accused had already been submitted‑‑‑Accused was granted bail in circumstances.

Ch. Imran Rana Chaddar for Petitioner.

Kabir Ahmad Chaudhry for the Complainant:

Muhammad Hanif Saleemi for the State.

2003 P Cr. L J 389

[Lahore]

Before Asif Saeed Khan Khosa, J

AMBREEN GUL‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.6467/B of 2002, decided on 1st October, 2002.

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

‑‑‑‑S. 498‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10‑‑‑Bail, grant of‑‑‑No date or time of the alleged occurrence had been mentioned in the F.I.R.‑‑‑Accused had been depicted in the F.I.R. as a victim rather than an offender‑‑‑Accused was a minor girl aged about 13/14 years‑‑‑Minority as well as gender of the accused attracted provisions of first proviso to S.497, Cr.P.C. which envisaged a concession of bail for minor and female accused persons irrespective of the gravity of offence alleged against them‑‑‑Allegations of mala fides against the local police appeared not to be without any substance or foundation in the peculiar circumstances of the case‑‑‑Accused being a minor, lacked, requisite maturity or legal capacity to give consent to an act of sexual intercourse‑‑‑Ad interim pre‑arrest bail already allowed to the accused was confirmed in the circumstances.

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

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10‑‑‑Bail, grant of‑‑‑Minor female lacks the requisite maturity or legal capacity to give consent to an act of sexual intercourse with her‑‑Even if she had been a consenting party to sexual intercourse with her still on account of her legal incapacity in that regard she would not be treated as an accused person as in that situation it may be a case of a statutory rape.

Jan Nisar Balouch for Petitioner.

Rana Muhammad Zahid, Addl. A.‑G. for the State.

2003 P Cr. L J 393

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD ASHFAQ alias ACHHI‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1745/B of 2002, decided on 16th September, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Prohibition of (Enforcement of Hadd) Order (4 of 1979), Arts. 3 & 4‑‑‑Bail, grant of‑‑‑Allegation against the accused was that from his possession plastic can containing four litres Desi liquor was recovered‑‑-Question of application of Art. 3 of Prohibition (Enforcement of Hadd) Order, 1979 against the accused needed serious consideration‑‑­Offence alleged against the accused did not fall within the prohibitory clause of S.497, Cr.P.C.‑‑‑Accused was not a previous convict and had been behind the bars for some time, he was accordingly granted bail.

Malik Mumtaz Akhtar for Petitioner.

Syed Altaf Hussain Bukhari for the State.

2003 P Cr. L J 397

[Lahore]

Before Ch. Iftikhar Hussain, J

Mst. KAUSAR PERVEEN alias KAUSAR BIBI‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2461/B of 2002, decided on 26th September, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979). Ss. 10(2)/16‑‑‑Bail, grant of‑‑‑Accused, being a lady, S.497, Cr.P.C., first proviso was attracted to her case under which a lady accused was ordinarily entitled to bail‑‑‑Accused had been behind the bars and was not a previous convict‑‑‑Accused was granted bail in circumstances.

Sher Muhammad v. Muhammad Sadiq and 2 others 1984 PCr.LJ 3126 and Mst. Sakina Bibi v. The State 1984 PCr.LJ 1010 ref.

Ch. Faqir Muhammad for Petitioner.

Nasrullah Khan Kakar for the State.

2003 P Cr. L J 405

[Lahore]

Before Muhammad Farrukh Mahmud and Farrukh Lateef, JJ

NOOR MUHAMMAD ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.383 of 2002, heard on 19th August, 2002.

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

----S. 9(b)---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4---Criminal Procedure Code (V of 1898), S.403---Appreciation of evidence---Double jeopardy---Prior to the present case, accused was involved in another case relating to recovery of heroin---Time lapsed in recovery of heroin leading to registration of said earlier case and recovery of Charas which had been made basis for registration of present case was hardly a few minutes or so---On the same date, same place and almost at the same time heroin and Charas were recovered from the accused, both the items fell within the definition of "narcotics"--­Registration of another case (present case) was unjustified and it appeared to be an overplay by the police---Two cases having been carved out from recovery of narcotics from accused at the same time and accused had already been finally convicted, he could not be convicted twice for the same offence in the light of S.403, Cr.P.C.---Conviction and sentence of accused recorded by Trial Court, were set aside, in circumstances and accused was acquitted of the charge.

Mian M. Nawaz Nazar Dhuddi for Appellant.

Iftikhar Ibrahim Tahir for the State.

Date of hearing: 19th August, 2002.

2003 P Cr. L J 409

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUNAWAR HUSSAIN SHAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1830/B of 2002, decided on 30th August, 2002.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.420---Interim pre-arrest bail, confirmation of---Matter was reported to police after a delay of more than 8-1/2 months---Accused had joined investigation ---Co-accused who had posed himself as owner in possession of disputed tractor received amount from complainant after executing a receipt had been granted post-arrest bail and both complainant and D.D.A. did not oppose grant of bail to co-­accused---Case of accused wag at much lesser footing as compared to that of co-accused---Offence under S.420. P.P.C. was bailable while other offences did not attract prohibitory clause of S.497, Cr.P.C.---No useful purpose would be served if accused was sent to jail who was likely to be granted bail after a few days on principle of consistency as one of co­-accused had already been granted bail while other stood acquitted--­Interim pre-arrest bail already granted to accused was confirmed, in circumstances.

Muhammad Ramzan v. Zafar Ullah and another 1986 SCMR 1380 ref.

Muhammad Arif Alvi for Petitioner.

Ch. Faqir Muhammad for the Complainant.

Tanvir Haider Buzdar for the State.

2003 P Cr. L J 413

[Lahore]

Before Muhammad Farrukh Mahmud, J

ABDULLAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1992/B of 2002, decided on 26th August, 2002.

Criminal procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/34---Bail, grant of--­Accused was behind the bars for more than three years, but not a single public witness had been examined by Trial Court---Last witness was examined about two years back who was a draftsman---All legal heirs of deceased, except one had entered into compromise with the accused---No one could be detained in jail for unlimited period---Such long delay in conclusion of trial by itself was an abuse of process of Court---Accused was admitted to bail, in circumstances.

Mrs. Saeeda Asif for Petitioner.

Pervaiz Akhtar Gujjar for the State.

2003 P Cr. L J 416

[Lahore]

Before Muhammad Farrukh Mahmud, J

ALTAF HUSSAIN ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No.298 of 2002, heard on 11th September, 2002.

Criminal Procedure Code (V of 1898)---

----Ss. 265-F(7) & 439---Application for issuance of process for compelling attendance of witness---Defence witness for whose attendance issuance of process was sought by applicant/accused, had issued a certificate in favour of applicant which had supported applicant's plea of alibi and said witness was still in service---Trial Court could refuse summoning of defence witnesses through process of Court only if Trial Court considered that purpose of application for summoning of defence witnesses was to cause vexation or delay or to defeat the ends of justice, by recording such grounds in writing---Order refusing to issue process for compelling attendance of witness passed by Trial Court did not show such reasons, but application was dismissed by Trial Court for extraneous reasons---High Court set aside order of Trial Court with direction to summon the witness sought to be summoned by applicant.

Syed Shahbaz Ali Rizvi for Petitioner".

Muhammad Anwar for the State.

Date of hearing: 11th September, 2002.

2003 P Cr. L J 419

[Lahore]

Before Muhammad Farrukh Mahmud, J

NAZIRAN BIBI alias JEERO---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.2083/B of 2002, decided on 2nd September, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497(1), first proviso---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.13/14/18---Bail, grant of---Complainant had no sanction of law to trespass into the house of accused---Bald allegations had been levelled against accused and other persons---Police officer raided the house of accused without obtaining any search warrant---Accused was a woman and her case fell within first proviso to S.497(1), Cr.P.C.---Accused was admitted to bail, in circumstances.

Riaz v. Station House Officer PLD 1998 Lah. 35 ref.

Ch. Sarfraz Ahmad Zia for Petitioner.

Syed Altaf Hussain Bukhari for the State.

2003 P Cr. L J 424

[Lahore]

Before Muhammad Farrukh Mahmud, J

QAMAR ABDUL SATTAR BAJWA---Appellant

Versus

ALLAH DITTA---Respondent

Petition for Special Leave to Appeal No.22 of 2002, decided on 12th September, 2002.

Criminal Procedure Code (V of 1898)---

----S. 417(2)---Penal Code (XLV of 1860), S.380---Special Leave to Appeal before High Court---Appeal against acquittal---Complainant and the prosecution witnesses had conceded that they had not seen the respondents committing the offence---Complainant had conceded that in fact he had informed one of the two other prosecution witnesses about the occurrence---Prosecution witnesses had proved to be inimical towards the respondents during trial---Chain of litigation was pending between the parties and the parties had been contesting suits pending before different Courts---No independent witness had been produced to support the allegations during trial---Was hard to believe that with the said ground of hostility, respondents would spend a night in the house of the complainant---Prosecution witnesses had contradicted each other on material points--No proof of ownership of gold ornaments had been placed on the record nor any description of gold ornaments had been given during the trial---Respondents were closely related to each other and had strained relations with the complainant---Judgment of acquittal rendered by the Trial Court was neither arbitrary nor perverse and was based on valid reasons---Findings of the Trial Court could not be brushed aside lightly on mere assumption that a different conclusion was possible---High Court dismissed the petition and leave to appeal was refused accordingly.

Ghulam Sikander v. Mamraiz Khan PLD 1985 SC 11 and Muhammad Iqbal v. Sanaullah and others PLD 1997 SC 569 ref.

Tariq Zulfiqar Ahmad Chaudhry for Applicant.

2003 P Cr. L J 430

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ASGHAR and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.83 and Criminal Miscellaneous No.1052 of 2002, heard on 16th October, 2002.

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

----Ss. 10(4)/11/20(1)---Penal Code (XLV of 1860), Ss.109/201/468/471---Constitution of Pakistan (1973), Art. 203-D---Federal Shariat Court, Appellate jurisdiction---Scope- -Complainant had filed appeal against acquittal of the accused persons in the Federal Shariat Court in offences under Offence of Zina (Enforcement of Hudood) Ordinance, 1979 while the accused persons/appellants had filed appeal against conviction in the High Court---Maintainability---Accused had been tried inter alia, under Ss.10(4) & 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 but were convicted under S.354, P.P.C.--­Section 20 of the said Ordinance, 1979 had provided that the provisions of Code of Criminal Procedure, 1898 would apply mutatis mutandis in respect of the cases under the said Ordinance---Second proviso to S.20(1) of the said Ordinance had provided that the offences punishable under the said Ordinance would be triable by a Court of Session and not by a Magistrate under S.30 of the Cr.P.C. and an appeal thereof would tie to the Federal Shariat Court---First proviso to S.20(1) had laid down that if it appeared in evidence that the offender had committed a different offence under any other law, he might be tried for the same if the Court was competent to try that offence---Appeal was to lie to the Federal Shariat Court from the order to be passed by a Court of Session while trying an offence punishable under the said Ordinance---Consequently, present appeal filed against conviction under S.354, P.P.C. in the High Court under S.410, Cr.P.C. was not maintainable and the Federal Shariat Court had the jurisdiction by virtue of the said proviso to S.20 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 to pass an order in respect of an offence other than the offences under the Ordinance, and the same was directed to be sent to the Federal Shariat Court.

Qudratullah alias Rudhi v. Siddiq Ahmad and 17 others 1991 PCr.LJ 1520; Muhammad Ilyas v. The State 1986 PCr.LJ 344 and Attaullah v. Abdur Razak and another PLD 2002 SC 534 ref.

Basharatullah Khan for Appellant.

Malik Rab Nawaz Noon for Applicant (in Criminal Miscellaneous No. 1052 of 2002).

Nadeem Akhtar for the State.

Date of hearing: 16th October, 2002.

2003 P Cr. L J 436

[Lahore]

Before Tanvir Bashir Ansari and Abdul Shakoor Paracha, JJ

HAFIZ ULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 16 of 2002, decided on 8th October, 2002.

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

----S. 9(c)---Appreciation of evidence---Prosecution evidence was cogent and consistent---Eye-witnesses had corroborated each other in respect of recovery of Charas---Defence had failed to show any mala fides against the police employees for false implication of accused in the offence---Chemical Examiner's report regarding the recovered material being "Charas" was not controverted by accused---Charas was admittedly recovered from the vehicle being driven by the accused--­Findings of the Trial Court did not suffer from any legal infirmity--­Conviction and sentence of accused were maintained in circumstances--­Order regarding confiscation of the vehicle warranted interference --­Charas weighing 3 Kgs. was recovered from the vehicle of the accused, for which he had been sentenced to three years' R.I. with a fine of Rs.10,000---To order confiscation of the vehicle was not a judicious exercise of discretion in circumstances and the same was set aside accordingly.

Haji Abdul Razzaq v. Pakistan PLD 1974 SC 5 ref.

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

----Ss. 19 & 32(2)---Forfeiture of assets of the offender---In the situation mentioned in S.19 of the Control of Narcotic Substances Act, 1997, the assets "shall stand forfeited", whereas in the situation mentioned in S.32(2) of the said Act the vehicle etc. are merely "liable to confiscation"---Phrase "liable to confiscation' is not equated with the term "shall be confiscated"---Where an article is made only liable to confiscation a discretion is given, but such discretion has to be exercised on sound judicial principles.

Haji Abdul Razzaq v. Pakistan PLD 1974 SC 5 ref.

Malik Shehzad Ahmed for Appellant.

Nemo for the State.

Date of hearing: 7th October, 2002.

2003 P Cr. L J 442

[Lahore]

Before Raja Muhammad Sabir and M. Naeemullah Khan Sherwani, JJ

ABID KHAN- --Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.434 and Murder Reference No.259 of 1998, heard October, 2002.

Penal Code (XLV of 1860)----

----S. 302---Appreciation of evidence---Sentence, reduction in---Ocular account had been furnished by truthful and natural witnesses who-were residents of the same locality and had given true account of the incident---Ocular evidence had been duly supported by the medical evidence ---F. I. R. had been promptly lodged after the incident--­Complainant had no motive to falsely implicate the accused---Defence had been unable to shake the credibility of the prosecution witnesses during cross-examination---Accused in his statement under S.342. Cr.P.C. before the Trial Court, had given his age as 20/21 years meaning thereby that the accused was aged 17/18 years at the time of occurrence---Age stated by the accused in the Trial Court had not been challenged by the prosecution at any stage---Acquitted co-accused had opened the fire which missed the target and thereafter ordered the appellant (son) a young boy of 17/18 years to kill the deceased---Accused had tired at the deceased under the command of his father and had not repeated the tire---Death sentence to the accused, in the light of the circumstances, was trot warranted---High Court altered the death sentence to life imprisonment---Benefit of S.382-B, was granted to the accused.

Liaqat Shah and others v. The State 1985 SCMR 1415: Alam Khan and others v. The State 1976 SCMR 128; Mst. Hafeezan Bibi v. Muhammad Tufail and others 1995 SCMR 256 and Abdul Qadoos v. The State 1999 PCr.LJ 93 ref.

Asghar Khan Bokhari for Appellant.

Ishfaq Ahmad Chaudhry for the State.

Date of hearing: 9th October, 2002.

2003 P Cr. L J 449

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD FAROOQ and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 156 and Criminal Revision No. 116 of 1999, decided on 8th October, 2002.

Penal Code (XLV of 1860)---

---Ss. 324, 334, 336, 337-A(i), 337-A(ii), 337-F(iv) & 337-F(v)--­Appreciation of evidence---Evidence of the injured prosecution witness had no credence as regards the involvement of the accused in peculiar circumstances of the case---One of the accused who had been convicted was never mentioned by the complainant in the F.I.R. and had been replaced in place of another accused who had allegedly opened attack on person of the injured prosecution witness---Prosecution story was replete with doubts as regards the involvement of the accused coupled with the fact that there was no public witness cited as far as recoveries were concerned which had been allegedly effected on pointation of the accused---None of the recoveries had been found stained with blood--­Hands of the injured prosecution witness could not have been amputated in the position in which he had been, as stated in the F.I.R.---Fact that there had been no previous enmity between the parties should not come in the way of grant of benefit of doubt to the accused persons---Conviction and sentence passed against the accused persons was set aside in circumstances and they were acquitted giving them benefit of doubt.

Akhtar Masood Khan for Appellant.

Ch. Zafar Iqbal Sulehria for the State.

Syed Shamim Abbas Bokhari for the Complainant.

Date of hearing: 8th October, 2002.

2003 P Cr. L J 464

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman, J

ZAHID MAHMOOD and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1443 of 2000, heard on 28th June, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b)/459/34‑‑‑Appreciation of evidence‑‑‑Both accused were named in the F.I.R. with the role that they being armed with fire‑arms alongwith other co‑accused in the furtherance of their common intention committed murder of deceased‑‑‑Specific allegation against accused was that he caused fire‑arm injuries to deceased on the back‑‑‑Occurrence was witnessed by two eye‑witnesses who were brother and cousin of the deceased‑‑‑Both said witnesses whose presence at the spot at relevant time was very natural, witnessed the occurrence in the light of bulb‑‑­Said witnesses had deposed in a natural manner and had given a version which was neither inconsistent nor contrary to each other‑‑‑Ocular account narrated by both the witnesses also stood corroborated by medical evidence‑‑‑Nature, location and duration of injuries as narrated by said eye‑witnesses stood confirmed by medical evidence ‑‑‑Long­standing enmity between the parties was motive for the commission of offence and eye‑witnesses were closely related to the deceased‑‑‑Both eye‑witnesses could fall within category of interested witnesses and to rely upon testimony of such‑like witnesses, one must look for independent strong corroborative piece of evidence‑‑‑Weapon of crime recovered from the accused had matched with empties recovered from the spot‑‑‑Said piece of evidence was sufficient to lend ample support to the ocular account and to uphold conviction of the accused‑‑‑Though 30 bore pistol was recovered at the instance of co‑accused with empties from the spot, but facts available on record had created doubt about authenticity of said piece of evidence‑‑‑Crime empties were recovered from inside the room where deceased was done to death, but according to prosecution's own case, co‑accused neither entered the said room nor made any firing from inside the room‑‑‑Crime weapon allegedly recovered at the instance of co‑accused remained lying with police for more than one month when the same alongwith crime empties was sent to the Office of Forensic Science Laboratory for its comparison‑‑­Possibility that evidence of recovery relied upon by prosecution to connect co‑accused, was fabricated during investigation, could not be ruled out‑‑‑No allegation was available against co‑accused of causing any injury to deceased‑‑‑Ocular account relied upon by the prosecution had no support from any independent corroborative piece of evidence to the extent of co‑accused‑‑‑Co‑accused was entitled to get benefit of doubt in circumstances‑ Conviction and sentence awarded to the co‑accused were set aside and he was directed to be released and conviction and sentence awarded to accused were maintained.

Ghulam Mustafa v. The State 1995 SCMR 175 ref.

Mian Muzaffar for Appellants.

Abdul Majeed Chishti for the State.

Date of hearing: 28th June, 2002.

2003 P Cr. L J 480

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeemullah Khan Sherwani, JJ

RASHID AHMAD‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 174 and Murder Reference No. 85 of 1998, heard on 27th June, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(a)(b)‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts.17 & 46‑‑­Appreciation of evidence‑‑‑Deceased himself lodged F.I.R. before his death when he was fully conscious‑‑‑Deceased met his death in hospital on the following day of the occurrence‑‑‑Accused was fully known to the deceased‑‑‑Deceased in his statement not only had given full particulars of the accused, but also had described the event fully well‑‑‑Deceased dictated his statement about the incident, the way in which it happened and the part played by the accused‑‑‑Deceased also furnished reasons behind the occurrence‑‑‑Statement made by deceased before his death was not only relevant, but also admissible in evidence under Art. 46 of Qanun‑e‑Shahadat, 1984 and was free from outside prompting‑‑‑No previous enmity existed between the deceased and the accused and there was no reason as to why accused should have been falsely and maliciously implicated by the deceased‑‑‑Story narrated in statement of deceased rang true and not the least element of doubt existed with regard to genuineness and correctness of said statement‑‑‑Eye‑witness whose presence at the spot could not be doubted also did not have the slightest reason to depose falsely against the accused in order to cause him serious harm‑‑‑Eye‑witness who had offered plausible explanation as to how he was available at the spot, was wholly reliable witness‑‑‑Blood‑stained Chhuri recovered at the pointation of accused was despatched to the office of Chemical Examiner who found the same stained with human blood‑‑‑Crime was committed by accused out of an elaborate planning and for a definite motive as such same could not be said as motiveless crime‑‑‑Prosecution, in circumstances, had fully established charge against accused by producing highly reliable evidence, but conviction of accused under S.302(a), P.P.C. was against law because in order to convict a person by dint of application of said section essential elements to be proved were that accused made before a Court competent to try the offence, a voluntary and true confession of commission of offence or by the evidence as provided in Art.17 of Qanun‑e‑Shahadat, 1984‑‑‑In absence of said element conviction of accused was altered from S.302(a) to S.302(b), P.P.C. with no alteration in quantum of sentence‑‑‑Death sentence awarded to accused was confirmed and murder reference answered in affirmative.

Malik Munsaf Awan for Appellant.

Kazim Iqbal Bhangoo for the State.

Date of hearing: 27th June, 2002.

2003 P Cr. L J 499

[Lahore]

Before Khawaja Muhammad Sharif. J

LIAQUAT ALI ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1850.and Criminal Revision No.929 of 2000, heard on 2nd July, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑‑Ss. 302(b)/337‑L(ii)‑‑Appreciation of evidence‑‑‑Case was of promptly lodged F.I.R. and names of accused persons, weapons of Offence they were carrying and roles they played were mentioned in details‑‑‑Besides the deceased, there were three injured witnesses who also appeared before the Trial Court‑‑‑Ocular account was fully corroborated by medical evidence furnished by Doctor who conducted post‑mortem examination on dead body of deceased‑‑‑Duration given by Doctor between death and post‑mortem report coincided with time of occurrence given by prosecution‑‑‑Prior to the present occurrence accused had broken legs of the deceased and had killed him with fire‑arm n the present incident which had shown highhandedness on the part of accused was broad daylight occurrence and weapon of offence was recovered from accused‑‑‑Prosecution having successfully proved its case against accused to its hilt conviction and sentence recorded by Trial Court against accused could not be interfered with.

Naeem‑ul‑Hassan Sherazi for Appellant.

Bashir Ahmad Gill for the State.

Muhammad Arif Bhindar for the Complainant.

Date of hearing: 2nd July, 2002.

2003 P Cr. L J 508

[Lahore]

Before Asif Saeed Khan Khosa, J

KHADIM HUSSAIN and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.191/B of 2001, decided on 6th February 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/16‑‑‑Penal Code (XLV of 1860), Ss.467/468/471 ‑‑‑ Bail grant of‑‑‑Further inquiry ‑‑‑F.I.R. had been lodged after a delay of about thirteen months‑‑‑Alleged enticee previously had lodged F.I.R. at ill, same Police Station alleging that complainant had abducted her against her wishes‑‑‑Said lady had also made a statement under S.164, Cr.P.C. before Magistrate in support of said allegations levelled by her in said F. I. R. ‑‑‑Alleged enticee had already filed a suit for jactitation of marriage against the complainant which matter was still pending before the Family Court‑‑‑Lady had throughout been maintaining that she had contracted valid marriage with the co‑accused and that her marriage with complainant was sham and bogus‑‑‑Lady had stated that she had been living with co‑accused who was her husband since her marriage with him and from said wedlock a child now aged about 8/9 months had already taken birth‑‑‑Role alleged against accused persons in F.I.R. was secondary in nature and alleged enticee had not been recovered from the custody of accused persons during investigation of case‑‑‑Accused were in judicial lock‑up and their custody was no longer required for purpose of investigation‑‑‑Case against accused calling for further inquiry within purview of S.497(2), Cr.P.C., they were admitted to bail, in circumstances.

Arshad Ali Chauhan for Petitioners.

Amjad Mumtaz for the State.

Date of hearing: 6th February, 2002.

2003 P Cr. L J 523

[Lahore]

Before Tassaduq Hussain Jillani and Asif Saeed Khan Khosa, JJ

MUZAFFAR IQBAL‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.101/J of 2002 and Murder Reference No.44/T of 2001, heard on 3rd July, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b), 324 & 109‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7(3)‑‑‑Appreciation of evidence‑‑‑Occurrence had taken place in chamber of an Advocate and deceased was clerk of the said Advocate‑‑­Complainant who was son of deceased was junior of the said ‑Advocate‑‑Both Advocate and complainant who were natural eye‑witnesses made consistent statements on all material particulars‑‑‑Another eye‑witness who was petition writer and was working in the Court premises, was also present in the chamber in question when occurrence took place‑‑‑All said witnesses were consistent as to what happened and in what manner it happened‑‑‑Ocular account and arrest of accused as the spot was further corroborated by medical evidence and recovery of pistol‑‑‑Pistol alongwith empties was sent to Forensic Science Expert and report received from him was positive and pistol stood connected with the crime‑‑‑Motive part of prosecution story was not only proved by prosecution witness, but was admitted even by accused in his statement recorded under S.342, Cr. P.C.‑‑‑Defence plea of accused that he had been falsely implicated on account of strained relations between him and his wife who was daughter of deceased was not tenable firstly because complainant party had taken recourse to legal proceedings by filing suit for maintenance against accused which was pending decision before Court of competent jurisdiction; secondly ocular account of prosecution case was furnished by independent witnesses who were neither related to complainant party nor they had any enmity with accused to falsely implicate him; thirdly arrest of accused at the spot had ruled out any chance of mistaken identity or substitution‑‑‑Prosecution case against accused had fully been proved, in circumstances‑‑‑Accused who came to the spot armed with a pistol and was dare devil enough to fire at deceased in the Court premises in busy hours, had acted in a calculated and desperate manner by repeating fire even on prosecution witness‑‑­Such desperate disposition leading to occurrence which stood proved beyond reasonable doubt, would not entitle him for any lesser sentence‑‑­Sentence of death awarded to accused by Trial Court was confirmed by the High Court.

Ms. Sadiqa Iltaf Khan for Appellant (on State expense).

S.D. Qureshi for the State.

Wasi Zafar for the Complainant.

Date of hearing: 3rd July, 2002.

2003 P Cr. L J 537

[Lahore]

Before Ijaz Ahmad Chaudhry, J

BABAR HUSSAIN and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.5217/B of 2002, decided on 15th August, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 13 & 14‑‑‑Surrender of Illicit Arms Ordinance (XX of 1991), Ss.7/21/79‑‑‑Customs Act (IV of 1969), S.156‑‑‑Bail, grant of‑‑‑Earlier bail application was dismissed and ground taken in subsequently filed application was that DSP/SDPO who re‑investigated the case had found that Nikahnama showing accused husband and wife, was genuine‑‑­Accused at the time of their arrest neither had claimed to be husband and wife nor had produced any Nikahnama though accused were produced by Police before the Courts‑‑‑Plea of Nikah was introduced by the accused after one month and 16 days of their arrest ‑‑‑Nikahnama otherwise was not proved to be genuine‑‑‑Earlier Police Officer round Nikahnama as fake and false, but subsequently some other Police Officer had given different opinion, which fact proved that second opinion regarding Nikahnama had been given under pressure of some higher officer ‑‑‑Challan in the case had been submitted and delay if any in disposal of trial was due to efforts made by accused for declaring them innocent by the police‑‑‑Bail could not be granted on ground of delay, in circumstances‑‑‑Application for grant of bail, was dismissed.

Aftab Gul for Petitioners.

Tariq Rashid Chaudhry for the State.

Date of hearing: 15th August, 2002.

2003 P Cr. L J 542

[Lahore]

Before Khawaja Muhammad Sharif, J

SHABBIR AHMAD‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1545 of 2001, heard on 12th July, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(c)‑‑‑Appreciation of evidence‑‑‑Accused was real son of deceased lady and was tried with his father who was accused of abetment and was acquitted by the Trial Court‑‑‑Post‑mortem examination, showed three injuries on the body of deceased which meant that accused not only caused one injury, but had caused three injuries‑‑‑All eye‑witnesses were natural witnesses because they were residents of the house where occurrence had taken place‑‑‑No possibility of false implication was present, in circumstances‑‑‑Trial Court had already taken a very lenient view of the‑matter‑‑‑Such type of occurrence could not be encouraged in the Society‑‑‑Accused who had committed murder of his real mother in a very brutal and gruesome manner, was rightly convicted and sentenced by Trial Court.

Shabbir Ahmad Khan for Appellant.

Mirza Abdullah Baig for the State.

Date of hearing: 12th July, 2002.

2003 P Cr. L J 551

[Lahore]

Before Rustam Ali Malik, J

Rao NOOR ALAM‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Nos.3353/B and 4793/B of 2002, decided on 31st October, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.420/468/471‑‑‑Bail, grant of ‑‑Allegation against the accused regarding preparation of fresh forged deed was vague ‑‑‑F.I.R. had not mentioned as to whether the accused had defrauded the complainant or anybody else on the basis of the said forged deed or whether he had produced the same before any Court‑‑­Dispute between the parties was of a civil nature which could be definitely resolved by carrying out demarcation at the spot through the Revenue Officials‑‑‑Case against the accused being of further inquiry accused were granted bail.

Muhammad Akram Javed and afar Iqbal Chohan for Petitioner.

Mian Saeed‑ud‑Din Ahmad for the State.

Partas Felix for the Complainant.

2003 P Cr. L J 554

[Lahore]

Before Tassaduq Hussain Jillani, J

ZAIGHUM through his mother and others‑‑‑Petitioners

Versus

THE STATE and others‑‑‑Respondents

Criminal Revision No.491 of 2000, heard on 15th August, 2002.

Penal Code (XLV of 1860)‑‑

‑‑‑‑Ss. 302/109/34‑‑‑Criminal Procedure Code (V of 1898), S.439‑‑­Petition for enhancement of sentence‑‑‑Appreciation of evidence‑‑‑No overt act had been attributed to the two accused persons and the role attributed to one of them was that she had clasped the deceased and facilitated the main‑accused to cause fatal blow‑‑‑Both the said two accused were husband and wife and the female accused was sister‑in‑law of the deceased‑‑‑Only one blow had been given by the main accused‑‑­No other visible injury was found on the body of the deceased‑‑‑Had the deceased been clasped by the female accused there would have been other injuries also on the person of the deceased and even otherwise it was repellent to common sense that in the presence of her husband, female accused would perform that kind of act‑‑Mother of the deceased having already‑forgiven the main accused and had appeared as defence witness to say so, Trial Court in view of the attending circumstances had rightly sentenced the two accused persons to Diyat amount to the extent of legally inheritable share by the minor son and widow of the deceased‑‑‑Petition to the extent of the main accused, was dismissed as not pressed and with regard to the above two accused was dismissed accordingly.

Rana Muhammad Nawaz for Appellant.

Muhammad Akram Javaid for Respondents.

Date of hearing: 15th August, 2002.

2003 P Cr. L J 561

[Lahore]

Before Muhammad Khalid Alvi, J

SAEED AHMAD‑‑‑Petitioner

Versus

S.H.O., POLICE STATION MAKHDOOM RASHID DISTRICT MULTAN and 3

others‑‑‑Respondents

Writ Petition No.2582/H of 2002, decided on 9th May, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 491‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑Recovery of minor‑‑‑Minor had stated "before the Court that she had been residing with her mother and wanted to live with her‑‑­Minor had admitted that the petitioner was her father‑‑‑Petitioner had not wanted the minor to be removed from the custody of her mother and his only grievance was that he be allowed to see the minor once a week‑‑­Validity‑High Court directed that minor be handed over to the petitioner on every Friday at 9‑00 a.m. and she be returned by the petitioner to her mother at 9‑00 p.m. on the same day‑‑‑Such an arrangement was acceptable to both the parties‑‑Constitutional petition was disposed of accordingly.

Mian Fazal Rauf Joyia for Petitioner.

Muhammad Zafar Khan Sial for Respondents.

2003 P Cr. L J 564

[Lahore]

Before Ali Nawaz Chowhan, J

FEROZE KHAN and 3 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 150 of 1992 and Criminal Revision No.22 of 1993, decided on 11th February, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34, 304, Part II, 323/34 & 323‑‑‑Appreciation of evidence‑‑­Case being of the year 1988 fell within the old provisions of the Pakistan Penal Code‑‑‑Occurrence having taken place because of a sudden quarrel, each accused was responsible for his individual act‑‑‑Sticks had been used in the incident in which both sides had suffered injuries and nothing unusual had been attributed to any of the sides‑‑‑Conviction of two accused under. S.302/34, P. P. C. was consequently converted to S.304, Part II, P.P.C. and in view of their individual role during the quarrel they were sentenced to ten years' R.I. each with a fine of Rs.50,000‑‑­Other accused were found to, have caused simple injuries to the witnesses and their convictions and sentences under Ss.323/34 & 323, P.P.C. being proper were upheld‑‑‑Appeal was disposed of accordingly.

Malik Rab Nawaz Noon for Appellants.

Ch. Zahoor Hussain and Ch. Aafrasiab Khan for Respondents.

Date of hearing: 17th January, 2002.

2003 P Cr. L J 591

[Lahore]

Before Iftikhar Hussain Chaudhry and Zafar Pasha Chaudhry, JJ

THE STATE‑‑‑Appellant

Versus

SARDAR and another‑‑‑Respondents

Criminal Appeal No. 1244 of 1980, decided on 1st March, 2001.

Criminal Procedure Code (V of 1898)‑‑

‑‑‑‑S. 417‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Appeal against acquittal‑‑‑Trial Court had acquitted accused extending him benefit of doubt about 25 years back‑‑‑Adequate justification had been furnished by Trial Court in support of order of acquittal‑‑‑Order of acquittal was not to be ordinarily interfered with unless same was found to be arbitrary or perverse and no such ingredient could be noticed in the present case‑‑­Occurrence had taken place 25 years back and in order to convert order of acquittal into conviction, Court had to be extra‑cautious to determine built or innocence of accused‑‑‑Order of acquittal in favour of accused could not be held to be arbitrary or perverse‑‑‑Mere fact that another view could possibly be taken by Court, itself was not sufficient to convert order of acquittal into conviction‑‑‑Contention that compensation could be awarded to heirs of deceased, was repelled because if order of acquittal was not sustainable then mere award of compensation would not be a legal punishment.

Salma Malik, A.A.‑G., Punjab for Appellant.

Sardar Shoukat Ali for Respondents.

Date of hearing: 1st March, 2001.

2003 P Cr. L J 600

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeem Ullah Khan Sherwani, JJ

SHABBIR AHMAD alias MUHAMMAD AKRAM and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.582 of 2000 and Murder Reference No.301 of 2000, heard on 24th April, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b)/309/310‑‑‑Criminal Procedure Code (V of 1898), S.345(2)‑‑‑Compromise between accused and legal heirs of the deceased‑‑‑During pendency of appeal against conviction and sentence awarded to accused by Trial Court, a compromise was arrived at between the accused and legal heirs of the deceased‑‑‑Three sons of deceased were minors and their paternal‑uncle was appointed guardian of persons and property of minors by Guardian Judge‑‑‑Guardian of minor legal heirs of deceased appeared in Court and confirmed the fact of compromise with accused and stated that offence had been compounded on behalf of legal heirs of deceased after "Badl‑e‑Sulh" i.e. a house from accused and he expressed his no objection if accused were acquitted of charge of murder of his deceased brother‑‑‑Sessions Judge in his report had verified compromise, receipt of "Badl‑e‑Sulh" by legal heirs of the deceased‑‑­Interest of minors having fully been protected and parties having compounded offence of their own free will and without any coercion from any side, compromise was allowed and accused were acquitted and released accordingly.

Ch. Inayat Ullah Cheema for Appellants.

M. Azam for the State.

Date of hearing: 24th April, 2002.

2003 P Cr. L J 605

[Lahore]

Before Khawaja Muhammad Sharif, J

SULTAN MEHMOOD alias COOK‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.242/J of 2001, decided on 22nd August, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Accused armed with fire‑arm alongwith his co‑accused had committed murder of deceased‑‑‑Accused was the member of unlawful assembly and murder was committed in prosecution of common object‑‑‑Incident was a broad daylight occurrence and F.I.R. was promptly lodged‑‑‑Accused, who was armed with .12 bore gun had caused injuries on the left eyebrow, face and left ear of the deceased‑‑‑Ocular account was fully corroborated by the medical evidence‑‑‑Duration given by Doctor in his post‑mortem report of the deceased was in line with the time of occurrence‑‑‑Accused remained fugitive from law for about four months‑‑‑Nothing had come on record that there was any direct previous enmity of eye‑witnesses with the accused‑‑‑Two eye‑witnesses though were related to the deceased, but they could not be termed as interested witnesses as they had no animus they could not be termed as interested witnesses as they had no animus with the accused‑‑‑Case was not of mistaken identity‑‑‑Prosecution having fully proved its case against the accused beyond any reasonable doubt his conviction and sentence awarded by Trial Court was maintained.

Saifullah Khalid for Petitioner (at State expenses).

Sadaqat Butt for the State.

Date of hearing: 22nd August, 2002.

2003 P Cr. L J 623

[Lahore]

Before Tanvir Bashir Ansari, J

IMTIAZ HUSSAIN ‑‑‑Petitioner

Versus

MUHAMMAD AZAM, S.H.O. DISTRICT OKARA and 3 others‑‑‑Respondents

Writ Petition No. 12156 of 2002, decided on 30th July, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199(1)(b)(i)‑‑‑Constitutional petition‑‑‑Illegal confinement‑‑­Petitioner had alleged that accused was enlarged on bail, but was again arrested on the same day in pursuance of another F.I.R. got registered against the accused by same Police Officer‑‑‑Petitioner stated that accused was kept in illegal confinement from the day of his re‑arrest up to the grant of bail to him subsequently‑‑‑Petitioner had alleged that accused was falsely involved in the case by the police with mala fide intention ‑‑‑Challan in both the cases against accused had been submitted to the Court of competent jurisdiction and petitioner could seek his appropriate remedy there under the law‑‑‑Superintendent of Police, however, was directed to probe into the allegation levelled by the petitioner against the concerned Police Official and submit his report in the Court in that respect within specified period.

Muhammad Iqbal Vehniwal for Petitioner.

Ch. Imitaz Elahi for A.‑G. for official Respondent.

Date of hearing: 30th July, 2002.

2003 P Cr. L J 638

[Lahore]

Before Khawaja Muhammad Sharif and Rustam Ali Malik, JJ

KHALID alias KHALDI‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.393 of 1997, 18 of 1998 and Murder Reference No.22 of 1999, heard on 21st October, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Occurrence was not denied by the accused‑‑‑Ocular testimony was corroborated by the medical evidence as well as by the motive‑‑‑Conviction of accused was maintained in circumstances‑‑‑Some mitigating circumstances were, however, available on record for awarding lesser punishment to accused, e.g., Jeep of the accused with broken screen was taken into possession by the police just after the occurrence, accused had remained present at the spot after the occurrence which showed that something was suppressed by the prosecution, deceased had died 36 days after the occurrence who had received only one injury on his person and the accused had not repeated the shot‑‑‑Sentence of death of accused was reduced to imprisonment for life in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Criminal Procedure Code (V of 1898), S.417(2‑A)‑‑­Appeal against acquittal‑‑‑Accused had been found innocent in police investigation‑‑‑Reasons advanced by the Trial Court for acquitting the accused were supported by the evidence on record which were not open to any exception‑‑‑Appeal against acquittal of accused was dismissed accordingly.

Sahibzada Farooq Ali Khan for Appellant.

Masood Sabir for the State.

Date of hearing: 21st October, 2002.

2003 P Cr. L J 657

[Lahore]

Before Khawaja Muhammad Sharif, J

ARSHAD ALI and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1047 of 2001, heard on 19th November, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Names of accused were not mentioned in the F.I.R. and were supplied by the complainant in his supplementary statement after fifteen days of the occurrence‑‑‑Motive for the occurrence given in the F.I.R. was totally different from that given in the complaint filed against the accused by the widow of the deceased‑‑­Five co‑accused in the case had been acquitted by the Trial Court‑‑­Medical evidence had not supported the ocular testimony‑‑‑No crime empty having been secured from the spot, recovery of weapon at the instance of accused did not advance the prosecution case‑‑‑No independent corroboration of ocular account was available on record to sustain conviction of accused‑‑‑State Counsel had rightly conceded to the submission of the defence counsel‑‑‑Accused were acquitted in circumstances.

Falak Sher v. The State 1995 SCMR 1350 and PLD 2002 Lah. 110 ref.

Aazam Nazir Taseer for Appellants.

Miss Nausheen Taskeen for the State.

Date of hearing: 19th November, 2002.

2003 P Cr. L J 667

[Lahore]

Before Khawaja Muhammad Sharif and Rustam Ali Malik, JJ

HABIB‑UR‑REHMAN and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.187, 188 and 190 of 1997, heard on 21st October, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Witnesses of extra‑judicial confession allegedly made by the accused did not support the prosecution case‑‑‑Husband of the accused although had come to know about the murder of three deceased on the same night, yet he never reported the matter either to the police or to any other person including the complainant and kept mum for so many days and his silence had made his statement doubtful‑‑‑Accused could not be convicted on the basis of judicial confession made by co‑accused‑‑‑Participation of accused in the occurrence was doubtful and she was acquitted on benefit of doubt accordingly.

Faqir Ahmad v. Khalil‑uz‑Zaman and others 1999 SCMR 2203 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b), 308 & 307(c)‑‑‑Appreciation of evidence‑‑‑Accused had made a judicial confession about his guilt‑‑‑Accused, however, was "Wali" of the three deceased persons and his case was covered by S.307(c), P.P.C.‑‑‑State Counsel had also conceded to the situation‑‑­Death sentence awarded to accused on three counts was consequently set aside and he was convicted under S.308, P.P.C. and sentenced to 14 years' R.I. on three counts and to pay Diyat amount on each count to legal heirs of the deceased‑‑‑Sentences were directed to run consecutively with benefit of S.382‑B, Cr.P.C.

Ch. Muhammad Yaqoob Kung for Appellant.

Tanvir Haider Bazdar for the State.

Date of hearing: 21st October, 2002.

2003 P Cr. L J 676

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD MUSHTAQ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.366 and 388 of 1997, heard on 13th December, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 468/34 & 471/34‑‑‑Appreciation of evidence‑‑‑Accused who were Headmaster and a Teacher in the school had allegedly issued four bogus certificates in favour of four students to the effect that they had passed their Middle School Examination from the Education Department‑‑­Accused had not denied before the Trial Court their signatures and writing on the bogus certificates, but the stand taken by them of having signed on blank papers or under coercion was unbelievable and an afterthought‑‑‑Convictions of accused were maintained in circumstances‑‑‑However, the case related to the year 1994 and their sentence of imprisonment was reduced to twelve days' R.I. each with fine, in circumstances.

M.A. Zafar for Appellant.

Mukhtar Sherazi for the State.

Date of hearing: 13th December, 2002.

2003 P Cr. L J 685

[Lahore]

Before Khawaja Muhammad Sharif, J

RAFAQAT ALI ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1652 and Criminal Revision No.789 of 2001, heard on 11th October, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Occurrence had not taken place at the time as alleged by the prosecution ‑‑‑F.I.R. was delayed and the matter was not reported to the police even after admission of the deceased in the Rural Health Centre‑‑‑Eye‑witnesses were closely related to the deceased and no independent witness was produced by the prosecution‑‑­No crime‑empty was recovered from the spot and only the recovery of the gun at the instance of accused did not advance the prosecution case which according to the report of the Fire‑arms Expert was in working order‑‑‑Complainant had improved the story of motive at the trial‑‑­Occurrence was an un-witnessed one‑‑‑Eye‑witnesses were not present at the scene of occurrence‑‑‑Accused was given the benefit of doubt and acquitted in circumstances.

Syed Ehsan Qadir Shah for Appellant.

Ch. Muhammad Nazir for the State.

Nemo for the Complainant.

2003 P Cr. L J 694

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman, J

WALI MUHAMMAD alias WALI DAD‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.963 of 2001, decided on 4th October, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(c)‑‑‑Appreciation of evidence‑‑‑Statements of eye‑witnesses whose presence at the spot had been established from the record had shown that occurrence had taken place on the spur of moment and it was not a case of pre‑planned or intentional murder‑‑‑Statement of eye­witnesses showed that at the time of occurrence both accused and his co-­accused were armed with Sotas whereas complainant party was empty­handed‑‑‑If accused had any intention to commit murder he could have caused more injuries to the deceased but facts of case had revealed that accused felt contented by causing only single injury as a result of which deceased died after twenty days‑‑‑Conviction of accused under S.302(b). P.P.C. was not sustainable‑‑‑Setting aside conviction of accused under S.302(b). P.P.C., he stood convicted under S.302(c), P.P.C. and was sentenced to 14 years' R.I. accordingly.

Saiful Haq Zaiy for Appellant.

Mirza Abdullah Baig for the State.

Date of hearing: 4th October, 2002.

2003 P Cr. L J 711

[Lahore]

Before Iftikhar Hussain Chaudhry, J

MUHAMMAD NASIR‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 118 of 2001, decided on 9th July, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b), 302(c) & 308‑‑‑Appreciation of evidence‑‑‑Incident was admitted by the accused who was less than 18 years of age at the relevant time‑‑‑Accused had killed his real uncle by inflicting many dagger blows on his person and he did not feel contented by infliction of a single blow‑‑‑Death had been caused with vengeance which showed that the accused had attained sufficient maturity at the time of occurrence‑‑‑Conviction of accused under S.302(b) P.P.C. was consequently set aside and instead he was convicted 'under section 302(c), P.P.C. read with S.308, P.P.C.‑‑‑Accused was now sentenced to pay Diyat amounting to Rs.2,69,176 and to undergo 14 years' R.I. as Tazir with benefit of S.382‑B, Cr.P.C. in circumstances.

Muhammad Inayat Ullah Cheema for Appellant.

Muhammad Anwar Tiwana for the State.

Syed Samar Hussain Shah for the Complainant.

Date of hearing: 9th July, 2002.

2003 P Cr. L J 724

[Lahore]

Before Khawaja Muhammad Sharif, J

LATIF ULLAH alias SABRI‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Revision No.867 of 2002, decided on 27th September, 2002.

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

‑‑‑‑S. 510‑‑‑Report of Chemical Examiner, Serologist etc.‑‑‑Scope‑‑­Prosecution can only tender in evidence the documents mentioned in S.510, Cr‑P.C. at the time of closing its case and it cannot be allowed to tender in evidence any other documents which were not part of the record or were not opinions of Experts.

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

‑‑‑‑Ss. 540 & 439‑‑‑Revision‑‑‑Prosecution allowed to submit documentary evidence after closing the case‑‑‑Validity‑‑‑Case of prosecution had been closed, statement of accused recorded and the defence evidence in rebuttal had also been recorded‑‑‑Prosecution at such stage could not be allowed to submit documentary evidence, as done by the Trial Court‑‑‑Impugned order of the Trial Court was illegal and the same was consequently set aside‑‑‑Revision petition was accepted accordingly.

2000 SCMR 468: 2000 SCMR 1969 and PLD 2000 SC 384 ref.

Muhammad Sana Ullah Khan for Petitioner.

Malik Ijaz Hussain Gorcha for the Complainant.

Muhammad Jahangir Wahla, A.A.‑G. for the State.

2003 P Cr. L J 729

[Lahore]

Before Bashir A. Mujahid, J

Mst. SUGHRAN BEGUM and others‑‑‑Petitioners

Versus

THE STATE and others‑‑‑Respondents

Criminal Miscellaneous No. 153/Q of 2002, heard on 17th October, 2002.

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

‑‑‑‑S. 561‑A‑‑‑Penal Code (XLV of 1860), Ss.420/468/471‑‑‑Petition for quashment of criminal proceedings‑‑‑Respondents who were real sisters of the petitioner, residing at place "G" had allegedly agreed to give their share of ancestral land situated at place "S", where petitioner was residing to him in exchange of his share of land situated at place "G"‑‑­Mutual mutations for exchange of land in favour of each party had been attested and registered at respective party's place of residence‑‑­Respondents had moved an application to the concerned Authorities at place "G" alleging that petitioner had defrauded them and deprived them of their land, consequently, an F.I.R. had been registered at place "G" and challan had been presented in the Court‑‑‑Prior to the registration of F.I.R., petitioner had filed a civil suit at place "S" defending the mutation of exchange in his favour which was still pending‑‑‑Held, respondents had disowned by moving application to the effect that they ever accepted the exchange or appeared before the Revenue Officer‑‑­During enquiry both the witnesses who had allegedly identified the respondents before the Revenue Officer when mutation in favour of the respondents had been attested had also supported the version of the respondents‑‑‑One of the two witnesses stated that he had never appeared before the Revenue Officer to identify the respondents while the other had stated that both the respondents were clad in Burqa (veil) and he was not sure about their identity‑‑‑Both the mutations were interlinked and fraud had been specifically alleged regarding the particular mutation in favour of the respondents registered at place "G"‑‑‑Contentions of the petitioner regarding jurisdictional defect in registration of criminal case at place "G" were repelled in the circumstances‑‑‑Objection regarding jurisdiction could however, be raised before the Trial Court at the first instance‑‑‑Petitioner's wife, herself a petitioner alongwith her husband had not been attributed any role; she could seek remedy by moving application under S.249‑A, Cr.P.C. at any stage during trial‑‑‑Plea of the petitioner for stay of criminal proceedings during pendency of civil suit could not be accepted to in the instant case as in the civil suit pending at place "S" other mutation in favour of the petitioner by the respondents was being defended which was not relevant in the criminal proceedings‑‑­High Court dismissed the petition accordingly.

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

‑‑‑‑S. 561‑A‑‑‑Inherent power of High Court‑‑‑Powers under S.561‑A, Cr.P.C. are not meant to stifle the prosecution case but instead prosecution is to be allowed opportunity to prove it.

The State v. Asif Ali and another PLD 2001 SC 536 rel.

Muhammad Akbar v. State and another PLD 1968 SC 281; N Manak Ji v. Fakhar Iqbal and another 1969 SCMR 198; Miraj Khan v. Gul Ahmad and 3 others 2000 SCMR 122 and Mst. Irshad v. Rashid Ahmad PLD 1907 Lah. 554 ref.

Ch. Muhammad Yaqoob Sidhu for Petitioners.

Muhammad Arshad Khan for Respondents Nos.3 and 4.

Muhammad Akbar Tarar, A.A.‑G. for Respondents Nos. 1, 2 and 5.

Date of hearing: 17th October, 2002.

2003 P Cr. L J 733

[Lahore]

Before Khawaja Muhammad Sharif and Rustam Ali Malik, JJ

FAYYAZ AHMAD‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 142, Criminal Revision No. 133 of 1997 and Murder Reference No. 172 of 1998, heard on 1st October, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Medical evidence had belied the prosecution version regarding seats of injuries on the person of the deceased‑‑‑Eye‑witnesses were not present at the spot at the time of incident‑‑‑Motive set up by the prosecution was not established on record‑‑‑Crime‑empties were sent to the Fire‑arms Expert after the recovery of the gun from the accused which proved that after recovery of gun, shots had been fired from the gun and then the empties were sent to the Fire‑arms Expert for comparison‑‑‑Report of the Fire‑arms Expert being a maneouvred and concocted one could not be relied upon‑‑­Accused was extended benefit of doubt and acquitted in circumstances.

1995 SCMR 1668; 2001 SCMR 387 and PLD 2001 SC 458 ref.

Masood‑ur‑Rehman Mirza for Appellant.

Masood Sadiq Mirza for the State.

S.M. Latif Khan Khosa for the Complainant.

Date of hearing: 1st October, 2002.

JUDGMENT

2002 P Cr. L J 739

[Lahore]

Before Ijaz Ahmad Chaudhry, J

HAQ NAWAZ MALIK ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.4369/B of 2002, decided on 31st July, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑S. 497‑‑‑penal Code (XLV of 1860), Ss.419/420/468/471/467/409‑‑‑Bail‑‑‑Accused from the record could easily be inferred to be a habitual offender in opening accounts of fake persons in the Bank and he in collusion with co‑accused had got huge amount misappropriated from the Benevolent Fund meant for legal heirs of the deceased Government employees‑‑‑Prima facie, accused was connected with the commission of an heinous offence‑‑‑Bail was declined to accused in circumstances.

Criminal Petition No. 143 of 2002 ref.

M.A. Zafar for Petitioner.

Rai Haider Ali Khan for the State.

2003 P Cr. L J 742

[Lahore]

Before Khawaja Muhammad Sharif and Rustam Ali Malik, JJ

ABDUR RASHID ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.104/J and Murder Reference No.49/T of 2002, heard on 2nd October, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b) & 324‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7(a)‑‑­Appreciation of evidence‑‑‑Supplementary statement made by the complainant 18 days after the occurrence was not worth reliance‑‑‑Presence of the complainant at the scene of occurrence was doubtful‑‑­Crime‑empties had been sent to the Fire‑arms Expert after one month and seven days of the occurrence‑‑‑Positive, report of the Fire‑arms Expert being concocted did not advance the prosecution case‑‑‑Ocular testimony furnished by the complainant and the injured witness was contradictory regarding firing by the assailants‑‑‑Description of the assailants was not given in the F. I. R.‑‑‑Identification parade was not held in accordance with the prescribed Rules‑‑‑Defence had created dents in the prosecution case, benefit of which had to be given to the accused‑‑‑Accused was acquitted in circumstances.

Muhammad Sharif Butt for Appellant.

M. Jahangir Wahla, A.A.‑G. with Ashfaq Ahmad Chaudhry for the State.

Date of hearing: 2nd October, 2002.

2003 P Cr. L J 751

[Lahore]

Before Ijaz Ahmad Chaudhry, J

TANVEER SHAHZAD‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Revision No.422 of 2002, decided on 12th December, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 540 & 439‑‑‑Penal Code (XLV of 1860); S.409 ‑‑‑ Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Revision petition‑‑‑Summoning of witnesses after the close of prosecution case‑‑‑Validity‑‑‑Applications for summoning the witnesses had been moved by the prosecution after closing its case and even after the final arguments had been made by both the parties and the case was fixed for announcement of judgment‑‑‑Said applications obviously had been made to fill up the lacunas in the prosecution evidence‑‑‑Powers under S.540, Cr.P.C., no doubt, could be exercised by the Court at any stage, but the witnesses could not be summoned there-under to fill up the lacunas in the evidence‑‑‑Impugned orders allowing the, said two applications moved by the prosecution were consequently set aside and the applications were dismissed‑‑ Revision petition was accepted accordingly.

2002 PCr.LJ 372 and 2002 SCMR 1455 ref.

Nishat Ahmad Siddiqui for Petitioner.

Syed Altaf Hussain Bukhari for the State.

2003 P Cr. L J 753

[Lahore]

Before Khawaja Muhammad Sharif, J

IRFAN ALI ‑‑‑ Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.414 and Criminal Revision No.189 of 2001, heard on 12th August, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Witnesses of extra‑judicial confession allegedly made by accused were closely related to the deceased who had neither apprehended him nor produced him before the police, rather their statements were recorded by the investigating Officer after 15/20 days‑‑‑Conduct of the said witnesses being most unnatural, evidence of extra‑judicial confession could not be retied upon‑‑‑Pistol recovered at the behest of accused was his licensed one and the report of the Fire‑arm Expert was only to the effect that it was working condition‑‑‑No crime empty was recovered from the spot‑‑‑No other evidence was available on record to connect the accused with the commission of the crime‑‑‑Accused was acquitted in circumstances.

Khubaib Ahmad v. The State 092 SCMR 398 and Manzooran v. The State 1989 MLD 832 ref.

M. Aslam Riaz for Appellant.

Mirza Abdullah Baig for the State.

Shahid Zaheer Syed for the Complainant.

Date of hearing: 12th August, 2002.

2003 P Cr. L J 758

[Lahore]

Before M. Naeemullah Khan Sherwani, J

MUNIR AHMAD‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.7780/B of 2002, decided on 9th December, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), S.395‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17‑‑­Bail ‑‑‑No identification parade qua the accused had been held by the prosecution in the case after his arrest which had brought his case within the purview of S.497(2), Cr.P.C. making it one of further inquiry‑‑­Accused was released on bail in circumstances.

Muhammad Suleman v. The State 2002 SCMR 1304 rel.

Munir Ahmad Khan Zai for Petitioner.

Muhammad Ashraf Khokhar for the State.

2003 P Cr. L J 760

[Lahore]

Before Khawaja Muhammad Sharif and Rustam Ali Malik, JJ

IMRAN SHAH‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.687 of 1998 and Murder Reference No.589 of 2000, heard on 30th October, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Criminal Procedure Code (V of 1898), S.345‑‑‑Partial compounding of offence‑‑‑Effect‑‑‑Father and mother of the deceased had not compromised with the accused‑‑‑Widow, son and daughter of the deceased, however, had forgiven the accused. in the name of Almighty Allah after having waived their right of Qisas which was a mitigating circumstance in favour of accused‑‑‑Sentence of death of accused was reduced to imprisonment for life in circumstances.

Criminal Petition No.776/L of 2001 rel.

M. Asghar Rokhari for Appellant.

Masood Sadiq Mirza for the State.

Date of hearing: 30th October, 2002.

2003 P Cr. L J 768

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Mst. BAHISHT BIBI ‑‑‑Petitioner

Versus

MAQBOOL AHMAD and 5 others‑‑‑Respondents

Criminal Revision No.248 of 2000, heard on 16th December, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 200, 249‑A, 417, 435 & 439‑A‑‑‑Penal Code (XLV of 1860), Ss.337‑H(ii), 337‑A(i), 337‑L(ii), 354, 148 & 149‑‑‑Revision against acquittal‑ ‑Maintainability‑‑‑Accused against whom private complaint was lodged by complainant, having been acquitted, complainant had filed revision petition under. Ss.435 & 439‑A, Cr.P.C. against order of acquittal‑‑‑Validity‑‑‑Complainant against acquittal order had a remedy under S.417(2), Cr.P.C. before High Court by filing petition for special leave to appeal, but complainant instead of filing such application had opted to tile revision petition in the Court of Sessions Judge and after dismissal of said petition, he had filed revision petition before the High Court which was not maintainable under S.439(5), Cr.P.C.‑‑‑Request of complainant to treat revision petition as an application under S.'417(2), Cr.P.C. was also not tenable as under S.417(3), Cr.P.C. no application for grant of leave to appeal from order of acquittal would be entertained by High Court after expiry of sixty days from order of acquittal whereas in the present case revision against acquittal order passed by Sessions Judge was filed after more than ten months from acquittal order and after about three months from order passed by Sessions Judge, which was hopelessly time‑barred‑‑‑Prayer of complainant for treating revision petition as petition under S.417(2), Cr.P.C. was declined as in an appeal against order of acquittal delay of each day had to be explained.

Ch. Sagheer Ahmad for Petitioner.

Mahr Abdul Razzaq for Respondents.

Naseem Rashid for the State.

Date of hearing: 16th December, 2002.

2003 P Cr. L J 770

[Lahore]

Before Khawaja Muhammad Sharif and Rustam Ali Malik, JJ

THE STATE---Appellant

Versus

SULTAN AHMAD and others---Respondents

Criminal Appeal No.260 of 1990 heard on 19th November, 2002.

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

----S. 302(b)-Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal---Delay in lodging the F.I.R. had been reasonably explained by the complainant---Inquest report had been prepared after the registration of the F.I.R. ---Parties being known to each other, no question of mistaken identity could arise---Accused had the motive for the occurrence---Presence of the complainant at the scene of occurrence was established whose name was mentioned in the column of relatives of the M.L.R. and who after the occurrence had taken his brother to the hospital---Hatchets recovered at the behest of accused were found stained with human blood-Ocular account was fully corroborated by medical evidence, motive and recoveries---Impugned judgment acquitting the accused was passed by Trial Court on conjectures and surmises against the evidence on record---Acquittal of accused was consequently set aside and they were convicted under S.302(b), P.P.C.---Occurrence having taken place 14 years ago, accused were not awarded death sentence and were sentenced to imprisonment for life each with benefit of S.382-B Cr.P.C.

Imtiaz Ahmad Chaudhry for the State.

Muhammad Sharif Khokhar for Respondents Nos. 1 and 3.

Muhammad Ilyas for the Complainant.

Date of hearing: 19th November, 2002.

2003 P Cr. L J 779

[Lahore]

Before Ch. Iftikhar Hussain, J

AMANAT ALI ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3288/B of 2002, decided on 12th December. 2002.

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

----S. 497(2)---Penal Code (XLV of 1860). S.302/34---Bail, grant of--­Further inquiry---Accused had not been ascribed role of raising Lalkara, ineffective tiring or dragging the deceased to Dera of co-accused--­Accused had caused no injury to deceased or to anybody else--­Investigation revealed that accused was not present at the spot at the relevant time---Ample scope of further inquiry existed as regard question of involvement of accused and particularly in the occurrence and vicarious liability for murder of the deceased---Case against accused thus fell within purview of S.497(2), C.P.C.---Accused who was behind the bars and was not a previous convict was entitled to bail.

Muhammad v. The State 1998 SCMR 454 and Muhammad Sadiq and another v. The State 1996 SCMR 1654 ref.

Muhammad Arif Alvi and Arshad Ali Chauhan for Petitioner.

Javed Iqbal for the State.

2003 P Cr. L J 781

[Lahore]

Before Khawaja Muhammad Sharif, J

HASSAN SHAH and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.1717 and 306/J of 2002, heard on 1st November, 2002.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Occurrence was an unwitnessed one---Matter had been reported to the police after a considerable delay---Occurrence had not taken place at the time mentioned in the F.I.R.---Complainant had been changing his version according to his whims---Prosecution evidence was not coming from an unimpeachable source---Ocular account was fully contradicted by medical evidence---Motive alleged by the prosecution was not proved---Accused were acquitted on benefit of doubt in circumstances.

Rana Ghulam Sarwar for Appellants.

Majeed Akhtar Shah for the State.

Date of hearing: 1st November, 2002.

2003 P Cr. L J 787

[Lahore]

Before Ch. Iftikhar Hussain, J

DOST MUHAMMAD ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2544/B of 2002, decided on 15th October, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/16---Bail, grant of---Further inquiry---Two and a half months' delay occurred in lodging the F.I.R.---Victim lady though in her statement under S.161, Cr.P.C. recorded before Police had leveled allegation against accused of Zina with her, but she was also made an accused in the case being a consenting party of Zina---Except statement of said lady no other evidence of Zina was on record against the accused---Was yet to be seen as to whether on statement of lady alone, accused could be held liable for the alleged offence---Case of accused was open to further inquiry---Accused who was behind the bars for the last about six months and was not a previous convict was granted bail in circumstances.

Mehr Muhammad Naeem Arshad for Petitioner.

Amjad Mumtaz for the State.

Raja Sultan Khurrum-uz-Zaman for the Complainant.

2003 P Cr. L J 793

[Lahore]

Before Khawaja Muhammad Sharif arid Rustam Ali Malik, JJ

AKHIAR-UL-HASSAN and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.97/T. 268/T, Criminal Revision No.69 and Murder Reference No.747/T of 2000, heard on 4th November, 2002.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 148---Appreciation of evidence---Complainant, Assistant Commissioner, who was present at the scene of occurrence and other eye-witnesses from the public had not supported the prosecution case--­No enmity existed between the police officials and the accused, but admittedly all the police witnesses being the subordinates of .the deceased D.S.P. had to toe the line stated in the F. I. R. ---Medical evidence had falsified the prosecution story---Positive report of the Fire-arms Expert alone could not be a basis for maintaining conviction of accused specially when eye-witness account was disbelieved---Recovery of only three crime-empties from the spot after alleged firing of at least 50/60 shots had also created doubt about the prosecution version--­Prosecution case being replete with doubts, accused were entitled to benefit of doubt as a matter of right---Accused were acquitted in circumstances.

Ch. Muhammad Iqbal, Raja Muhammad Anwar, Javed Kasuri Muhammad Anwar Raja and M. Arif Raja for Appellants.

Ch. Imtiaz Ahmad for the State.

Nemo for the Complainant.

Date of hearing: 4th November, 2002

2003 P Cr. L J 801

[Lahore]

Before Ch. Iftikhar Hussain, J

BASHIR AHMED ---Petitioner

Versus

THE STATE --- Respondent

Criminal Miscellaneous No.2499/B of 2002, decided on 15th October, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV. of 1860), Ss.420/468/471---Bail, grant of---Further inquiry---F.I.R. against accused was lodged with the delay of about nine years---Allegation against accused was that his brother in connivance with the accused and other co-accused had forged Nikahnama in dispute---Beneficiary of said Nikahnama could be her brother and not the accused---Liability of accused in the alleged offence, needed consideration which could be done at trial---Case required further inquiry into the guilt of accused---Offence alleged against accused did not fall within prohibitory clause of S.497(1), Cr.P.C. and grant of bail in such­like cases was a rule and refusal was an exception and no exceptional circumstances had been put forth to justify the refusal of bail--­Accused who was behind the liars for the last about 2 months was entitled to grant of bail.

Malik Naseer Ahmad Thaheem for Petitioner.

Ghulam Muhammad for the State.

Ch. Muhammad Jamil for the Complainant.

2003 P Cr. L J 803

[Lahore]

Before Khawaja Muhammad Sharif, J

ARSHAD MAHMOOD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.327.of 2001, decided on 7th November, 22002.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Eye-witnesses resided at a distance of 40/50 miles from the place of occurrence and their conduct was not natural---Trial Court had rightly disbelieved the presence of eye­witnesses on the spot at the relevant time---Star-witness who was the cause of motive and had seen the occurrence had been withheld by the prosecution and not produced at the trial-- -Conviction of accused could not be recorded merely on the basis of the F.I.R.---Accused was acquitted in circumstances.

Muhammad Rashid Bhatti for Appellant.

Jahangir Wahla, A.A.-G. with Mrs. Siddiqa Altaf Khan for the State.

Date of hearing: 7th November, 2002.

2003 P Cr. L J 807

[Lahore]

Before Tanvir Bashir Ansari, J

ABDUR RASHID ---Petitioner

Versus

MUHAMMAD GULZAR and another---Respondents

Criminal Revision No.8 of 2003, decided on 10th February, 2003.

Criminal Procedure Code (V of 1898)---

----Ss. 154 & 200---Lodging of F.I.R. and filing of private complaint---If a complainant, who had initiated the prosecution machinery of the State through lodging an F.I.R., was not satisfied with the investigative process carried out by the police, he could file a private complaint in respect of the same occurrence.

Noor Illahi v. The State and 2 others PLD 1966 SC 708; Raja Khushbakhtur Rehman and another v. The State 1985 SCMR 1314; Zulfiqar Ali Bhutto v. The State PLD 1979 SC 53 and Rasheed Ahmed v. Asghar Ali and others PLD 1986 SC 737 ref.

Tariq Azam Choudhary for Petitioner.

Sardar Tariq Masud Khan for Respondents.

2003 P Cr. L J 821

[Lahore]

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

SAEED AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos.565-B, 858/B and 1070/B of 2003, decided on 25th March, 2003.

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

----S. 51---Bail---Bar contained in S.51, Control of Narcotic Substances Act 1997 elucidated---Circumstances making the case fit for bail---Bail cannot be granted to accused if the offence committed by him under the Control of Narcotic Substances Act, 1997, is punishable with death and in cases of all other offences punishable under the said Act bail is normally not to be granted unless the Court is of the opinion that it is a fit case for grant of bail---Words "other offences punishable under this Act" used in subsection (2) of S.51 of the said Act include even an offence under S.9(a) of the said Act which is attracted to cases of recovery of narcotic substance weighing 100 grams or less---Quantity of the recovered narcotic substance, therefore, is not to be treated as a yardstick or a criterion for considering whether a particular. case is a fit case for grant of bail or not---Such fitness is to be gathered from other circumstances of the case, e.g., a background of ill-will or bitterness between the accused and the local police, minority, old age or gender of the accused,- illness, doubts regarding merits of the case, unconscionable delay in the trial or any other peculiarity of the case satisfying the Court that grant of bail would advance the interests of justice.

Nazar Hussain v. The State 2002 PCr.LJ 440 ref.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 51---Bail---Contention that fitness of a case for grant of bail was to be determined with reference to the quantity of the narcotic substance recovered from the accused was not impressive---Accused had been caught red-handed while in possession of various quantities of narcotic substances---Reports of Chemical Examiner in respect of the samples of the said narcotics were in positive---No special circumstance could. be pointed out on behalf of the accused to convince the Court that the case was fit for grant them bail---Reasonable grounds, prima facie, existed to believe the involvement of accused in the offences alleged against them--­Bail was declined to accused in, circumstances.

Nazar Hussain v. The State 2002 PCr.LJ 440 ref, Ahmad Nawaz Wattoo for Petitioner.

Mrs. Tasneem Amin for the State.

2003 P Cr. L J 826

[Lahore]

Before Bashir A. Mujahid, J

MUHAMMAD ASHRAF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.23-J of 2001, decided on 1st November, 2002.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Day light occurrence and no previous enmity existed between accused and witnesses to involve accused falsely by letting off real culprit---Both eye-witnesses had sufficiently explained their presence at the spot---Mere relationship of eye-witnesses with the deceased was no ground to discard their testimony unless it was shown that they were inimical and interested against the accused to depose against him falsely as no previous enmity existed between the parties---Mere non-mentioning of number of injuries correctly, would not show that occurrence was not witnessed by them as photographic picture was not possible to be given by prosecution witnesses---Accused was found guilty during the trial---Injuries attributed to the accused had been fully corroborated by post-mortem ,report--­Prosecution case had further been corroborated by recovery of weapon of offence---Trial Court had already taken a lenient view in awarding sentence to the accused---In absence of any illegality or infirmity of the reasons, misreading or mis appreciation of evidence, well reasoned judgment of Trial Court could not be interfered with in appeal.

Allah Ditta Arif Chaudhry for Appellant (on State expenses).

B2rshir Ahmad Gill for the State.

Date of hearing: 1st November, 2002.

2003 P Cr. L J 832

[Lahore]

Before Khawaja Muhammad Sharif, J

ASGHAR ALI ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1213 of 2000, heard on 13th January, 2003.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Out of four eye-witnesses mentioned in F.I.R., three were produced by prosecution before Trial -Court and out of three, complainant and other eye-witness who was brother of complainant and deceased, were declared hostile as they had not supported the prosecution case---Remaining eye-witness was resident of district other than the one where occurrence had taken place and his residence was at a distance of 10 to 15 K.Ms. away from place of occurrence---Contradiction existed between record and statements of eye­witnesses with regard to place of recording of F.I.R.---No person from the locality had been produced by prosecution to support prosecution case---Dead body, according to the eye-witnesses, remained in Police Station for the whole night while according to Investigating Officer dead body was removed to the mortuary the same night---Empties were recovered on the very date of occurrence which took place on 31-1-1998 and according to Investigating Officer recovery of gun was effected from the accused on 13-12-1998, but concerned official took the gun and empty cartridge on 22-12-1998 for further action in the' matter---Report of Forensic Science Laboratory had shown that gun and empty cartridge were received on 31-12-1998---Even said recovery was not believable because both the gun and empty cartridge were sent together---Only one fire 'was shot by the accused as per the case of prosecution---If only one fire was shot at the spot, the empty could not have come out from the gun unless other fire was shot---Motive had been disbelieved by Trial Court and presence of alleged eye-witness at the spot, was doubtful--­Prosecution had not been able to prove its case beyond any shadow of doubt---Conviction and sentence awarded to accused by Trial Court, were set aside granting benefit of doubt to him.

Syed Zahid Hussain Bukhari for Appellant.

Miss Tasneem Amin for the State

Date of hearing: 13th January, 2003

2003 P Cr. L J 847

[Lahore]

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

MAJID ALI SHAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.410, 869 of 2001 and Murder Reference No.44-T of 2002, decided on 20th March, 2003.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 337-A(i), 392/412, 337-J, 302/109, 324/109, 337-A(i)/ 109 & 337-J/109---Anti-Terrorism Act (XXVII of 1997), S.7--­Appreciation of evidence---Star-witness of the case had not only received injuries during the incident, but he had also been recovered in an unconscious state by the complainant and others from the house of occurrence---Said witness had provided .elaborate details about the manner in which a gruesome blood-bath had taken place in the-house of the deceased during the night and also about the roles played by the accused in the said grisly incident---Said witness had absolutely no ill­ will or animosity against the accused so as to prompt him to falsely implicate them in such a grave case---Ocular account was consistent and inspired confidence---Improvements pointed out by the defence in that regard were minor and insignificant having no bearing upon the fate of the case---Statement of the said injured eye-witness was fully supported by the medical evidence, motive and the recoveries of incriminating nature---Accused- had been overheard hatching the conspiracy and seen together outside the relevant house soon after the incident---Recovery of the dead bodies by the police at the behest of the accused from the places exclusively in -their knowledge had further supported the prosecution case---One accused had the requisite motive to do away with the victims and the other accused had acted as a mercenary for his friend and comrade---Defence evidence which was riot corroborated by any independent evidence was a belated, futile and last-ditch effort by a sister to save her - brother from the gallows---Case was one of callous, brutal and merciless butchery and carnage of six innocent persons and seriously injuring of another in cold blood in a premeditated and calculated manner---No ground for mitigation of sentences of accused was available on record---Convictions and sentences of accused were upheld in circumstances with the modification that their conviction and sentences recorded by Trial Court for offences under Ss.302, P.P.C & 302/109, P.P.C. on each count by way of "Qisas" would be treated as convictions and sentences by way of "Tazir".

Ch. Faqir Muhammad for Appellant (in Criminal Appeal No.410 of 2001).

Muhammad Yaqoob Kung for Appellant (in Criminal Appeal No.869 of 2001).

Mirza Abdullah Baig for the State.

Malik Fazal Karim for the Complainant.

Date of hearing: 20th March, 2003.

2003 P Cr. L J 860

[Lahore]

Before Ch. Iftikhar Hussain, J

Haji NOOR AHMAD and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2351/13 of 2002, decided on 16th October, 2002

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.337-A(ii)(iii)(v)/337-F(i) (v)/337-L(ii)/148/149---Bail, grant of---Further inquiry---Cross-version of alleged incident was in shape of private complaint brought by co-accused against complainant and others under Ss.365/342/337-A(i)/ 337-F(i)/337-L(ii)/382/148/149, P.P.C. in respect of the same occurrence and complainant party had been summoned by Magistrate considering that prima facie case under said sections had been made out against the complainant and others---Was yet to be seen that as to who was the aggressor and who was aggressed upon and same could be done at the trial---Case was covered under subsection (2) of 5.497, Cr.P.C. requiring further inquiry into their guilt---Accused who were behind the bars for the last about nine months, were previous non-convict---Accused were entitled to grant of bail, in circumstances.

Tariq Muhammad Iqbal for Petitioners.

Mehr Muhan A Ramzan Sial for the State.

2003 P Cr. L J 864

[Lahore]

Before Iftikhar Hussain Chaudhry and M. Akhtar Shabbir, JJ

THE STATE---Appellant

Versus

Rao JAVAID IQBAL---Respondent

Criminal Appeal No.45 of 1998, decided on 10th October, 2002.

Criminal Procedure Code (V of 1898)---

----S. 492---Appeal filed by Assistant Advocate-General ---Competency--­Appeal filed by Assistant Advocate-General was objected to on the ground that Assistant Advocate General being not Public Prosecutor in terms of provisions of S.492, Cr.P.C. was not competent to file appeal--­Validity---Both Advocate-General and Assistant Advocate-General had duly been notified as Public Prosecutors through notifications---Assistant Advocate-General having duly been notified as Public Prosecutor, could competently file the appeal---Objection with regard to competency of appeal was overruled.

State v. Rana Muhammad Saleem 2001 PCr.LJ 1465 ref.

Mian Muhammad Bashir, A.A.-G. for the State.

Muhammad Sharif Bhatti for Respondent.

2003 P Cr. L J 887

[Lahore]

Before Muhammad Farrukh Mahmud, J

FIDA HUSSAIN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal. No.483 of 2001, heard on 29th March, 2002.

Penal Code (XLV of 1860)---

----S. 392---Appreciation of evidence---Reduction in amount of fine--­Accused had not challenged their conviction, but had requested for reduction in amount of fine---Prosecution having proved its case against the accused beyond any doubt, conviction and sentence of imprisonment awarded to accused by Trial Court, were maintained---Accused had suffered a long time in Jail---Motorcycle allegedly robbed by the accused had already been recovered and delivered to the complainant and accused did not cause any injury to the complainant at the time of robbery--­Amount of fine awarded to the accused by the Trial Court, was reduced from Rs.10,000 to Rs.1,000 each.

Aqeel Ahmad Chughtai for Appellants.

Azmat Ali Khan Tagga for the State.

Date of hearing: 29th March, 2002.

2003 PCr. LJ 894

[Lahore]

Before Ch. Iftikhar Hussain, J

TARIQ HASSAN ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2968/B of 2002, decided on 14th November, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.336/34---Bail, grant of--­Further inquiry---According to F.I.R. accused had caused injuries with Sota to the injured hitting him on his head, forehead, eye, ear and neck--­Specific attribution of injuries to injured did not include the injury on mouth and lip or any related part of body of the injured ---Co-accused had been attributed injuries with Sota on different parts of injured---Narration in the F.I.R. definitely had shown that injury which ultimately had been declared as `Itlaf-i-Salahiyyat-i-Udw' had not been specifically attributed to any of the accused nominated in F.I.R. while the rest of the injuries did not attract an offence falling within the prohibitory clause of 5.497, Cr.P.C.---Injury 'Itlaf-i-Salahiyyat-i-Udw' of injured having not been specifically attributed to accused, his case was open to further inquiry covered under subsection (2) of S.497, Cr.P.C.---Accused who was behind the bars was previous non-convict---Bail was granted to the accused, in circumstances.

Irshad Hussain Jaffari for Petitioner.

Malik Abdul Hameed Khokhar for the State.

Ch. Muhammad Anwar-ul-Haq for the Complainant.

2003 P Cr. L J 908

[Lahore]

Before Ch. Iftikhar Hussain, J

SAEED AHMAD alias WAHEED and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2807/B of 2002, decided on 18th November, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497---Emigration Ordinance (XVIII of 1979), Ss.17 & 22---Bail, grant of---Allegations against accused were that they alongwith their father and brother in connivance with each other had secured huge amount alongwith passports and identity cards from their eleven relatives in order to get them visas and employment abroad, but accused neither provided visas and employment for the victims nor had returned their amount---Delay in lodging F.I.R. against the accused had been explained---Accused who had asserted that they had strained relations with their father for quite a few years and that they had no concern at all with his activities, had produced no proof of their strained relations with their father---Accused prima facie were connected with the alleged offence which fell within prohibitory clause of S.497, Cr.P.C.---Accused were not entitled to bail, in circumstances.

Muhammad Nawaz v. The State 1986 MLD 2678 and Riaz, Ahmad v. The State 2000 YLR 2028 ref.

Muhammad Asghar Bhutta for Petitioners.

Mian Abdul Ghaffar for the State.

2003 P Cr. L J 910

[Lahore]

Before Tassaduq Hussain Jilani, J

HAMMAD and others---Petitioners

Versus

THE STATE---Respondent

Criminal Revisions Nos.550 to 552 of 2002, decided on 18th September, 2002.

Penal Code (XLV of 1860)---

----S. 392---West Pakistan Arms Ordinance (XX of 1965), S.13--- Appreciation of evidence---Main case against all the three accused under S.392, P.P.C. was that they entered into the house of -complainant and robbed the inmates of articles mentioned in the F.I.R. and that a dagger was recovered from two of the three accused persons---Eye-witnesses .of main occurrence had made statements consistent with the F.I.R. and no material inconsistency was found between their statements before police and in the Court---No reason existed as to why the accused persons would be falsely implicated by the prosecution witnesses---Statements of prosecution witnesses had been corroborated by the factum of recovery and accused persons were found guilty during investigation as well--­Main case against accused in circumstances, stood fully proved---As for the case of two accused who were arrested at the spot under S.13 of West Pakistan Arms Ordinance, 1965, no reason existed for the police to receive a spy information on subsequent day raiding the premises, arresting the accused and recovering weapons in question from the accused---No public witness appeared to support the prosecution case in that respect---Prosecution case against said accused being not free from doubt, revision filed by, accused against their conviction was allowed and they were acquitted of charges under S.13 of West Pakistan Arms Ordinance, 1965.

Muhammad Aurangzeb Mir for Petitioners.

M. Bilal Khan, Addl. A.-G: for the State.

Date of heating: 18th September, 2002.

2003 P Cr. L J 916

[Lahore]

Before Ch. Iftikhar Hussain, J

SAJJAD HUSSAIN and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2650/B of 2002, decided on 16th October, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10/16---Bail, grant of---Further inquiry---Allegation against accused persons was that they enticed away complainant/victim lady and then had subjected her to Zina-bil-Jabr--- Complainant and her husband had filed their affidavits wherein they had deposed that they were satisfied that accused were not the real culprits and that they were innocent and that complainant did not want to pursue the case against the accused---Husband of complainant had deposed in the affidavit that his wife (complainant) had told him that accused were not the real culprits--­Case against accused had become one of further inquiry which was covered untie, subsection (2) of S.497, Cr.P.C.---Accused who were behind the bars were stated to be previous non-convicts---Accused were entitled to bail, in circumstances.

Ch. Imran Khalid Amratsari for Petitioners.

Malik Muhammad Riaz Aora for the State.

2003 P Cr. L J 921

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD RAMZAN--Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.39/B of 2003, decided on 21st January, 2003.

Criminal Procedure Code (V of 1898)---

-----S. 497(2)---Penal Code (XLV of 1860), S.363---Bail---Abducted minor child was with his grandfather and the accused was his real brother---Mother (complainant) of the child had moved the Guardian Judge for the custody of her son against the grandfather, which petition was still pending adjudication---Child was not recovered from the accused who was behind the bars for the last more than three months and was not ­a previous convict---Case against accused, in circumstances, required further inquiry as envisaged by S.497(2), Cr.P.C.---Accused was released on bail accordingly.

Mehr Nasir Hussain for Petitioner.

Tahir Ali Qureshi for the State.

2003 P Cr. L J 931

[Lahore]

Before Ch. Iftikhar Hussain, J

Mst. ZAHIDA MAI and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1 of 2002 in Criminal Appeal No.613 of 2002, decided on 24th January, 2003.

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

----Ss.426 & 497(1)---Penal Code (XLV of 1860); S.302(b)/34--­Suspension of sentence---Accused was a woman who had eight children, eldest of whom was a 16 years old daughter, and they were allegedly badly suffering due to detention of their mother in jail for the last more than one year---Suspension of sentence and grant of bail under S.426, Cr.P.C. was controlled and guided by the provisions of S.497(1), Cr.P.C.---Sentence of imprisonment for life of accused was suspended in circumstances and she was released on bail accordingly.

Mst. Zahida Bibi and others v. The State 2002 PCr.LJ 1035; Maqsood Ahmad and others v. The State 1994 PCr.LJ 514 and Mst. Shafqat Tahira v. The State 2000 PCr.LJ 912 ref.

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

----Ss. 426 & 497(1)---Suspension of sentence---Practice and procedure--­Suspension of sentence and grant of trail under S.426, Cr.P.C. is controlled and guided by the provisions of S.497(1), Cr.P.C.

Mst. Zahida Bibi and others v. The State 2002 PCr.LJ 1035 ref.

Sahibzada Farooq Ali for Petitioners.

Ghulam Muhammad for the State.

2003 P Cr. L J 934

[Lahore]

Before Khawaja Muhammad Sharif, J

Mst. MANZOORAN BIBI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 594 of 2001, heard on 18th November, 2002.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Fatal injury in the F.I.R. had been attributed to co-accused who alongwith other accused was found innocent during investigation except the present accused---Accused had retracted from her judicial confession recorded under S.164, Cr.P.C. in which she had admitted to have murdered the deceased under grave and sudden provocation on his having committed Zina-bil-Jabr with her--­Except the said retracted confessional statement no other evidence was available on record against the accused---Accused was acquitted on benefit of doubt in circumstances.

Mumtaz Ahmad Khan Niazi for Appellant.

Muhammad Siddique Minhas for the State.

Date of hearing: 18th November, 2002.

2003 P Cr. L J 940

[Lahore]

Before Khawaja Muhammad Sharif and Rustam Ali Malik, JJ

MUMTAZ and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.64 and f Murder Reference No.7 of 1998, heard on 30th October, 2002.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Appreciation of evidence---Prosecution had failed to prove the motive as alleged in the F.I.R.---Eye-witnesses were related to the deceased and were chance witnesses of the occurrence and their presence at the spot was doubtful---Inordinate delay in conducting the post-mortem examination of the deceased had cast doubts on the veracity of the prosecution story---Occurrence appeared & have taken place in dark hours of the night and was an un-witnessed one---None of the eye­witnesses had signed the inquest report---Cycles on which the prosecution witnesses and the deceased were allegedly coming had neither been taken into possession by the police, nor the same were mentioned in the inquest report or the site plans---Blood-stained clothes of the accused taken into possession by the Investigating Officer were not sent to Chemical Examiner for determination of the origin of blood--­Recovery witnesses resided 15 miles away from the place of occurrence and no person from the vicinity was joined in recovery proceedings--­Accused were given the benefit of doubt and acquitted in circumstances.

1980 SCMR 899; 1999 SCMR 1220; 1998 PCr. LJ 114; 2001 PCr.LJ 1932; PLD 2002 SC 52; PLD 2002 SC 62; 2002 SCMR 1155 and 1998 SCMR 1778 ref.

Masood Mirza with Bashir Abbas Khan for Appellants.

Mrs. Iram Sajjad Gul for the State.

Sayed Zahid Hussain Bukhari for the Complainant.

Date of hearing: 30th October, 2002.

2003 P Cr. L J 951

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD NAVEED and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.377 and 336 of 2001, heard on 8th July, 2002.

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

---S. 302(c)/34---Appreciation of evidence---Parties had not approached the Court with clean hands and had suppressed their roles played by them at the time of occurrence---Fight had taken place only between the accused and the deceased in which accused had fired the fatal shot at the deceased---Accused had already been awarded maximum punishment of 25 years' R.I. under S.302(c)/34, P.P.C. by the Trial Court which could not be enhanced to death sentence as no appeal had been filed by the State or the complainant against his acquittal under S.302(a) or 302(b), P.P.C.---Conviction and sentence of accused were upheld in circumstances.

PLD 1996 SC 274 ref.

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

----S. 302(c)/34---Appreciation of evidence--- No effective role was attributed to accused in the occurrence-- -None of the seven crime-empties secured from the spot had matched with any weapon recovered at the behest of the accused---Motive part of the evidence had rightly been disbelieved by the Trial Court---Accused were acquitted in circumstances.

Mian Muhammad Sikandar Hayat for Appellant.

Badar Munir Malik for the State.

M. Iqbal Bhatti for the Complainant.

Date of hearing: 8th July, 2002.

2003 P Cr. L J 960

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD RAFIQ‑‑‑Appellant

Versus

THE STATE ‑‑‑Respondent

Criminal Appeal No.2016 of 2001, heard on 19th November, 2002.

Penal Code (XLV of 1860)‑‑

‑‑‑‑Ss. 302 & 452‑‑‑Appreciation of evidence‑‑‑Thirteen co‑accused had been acquitted by Trial Court on the same evidence‑‑‑Real brother of the accused who had been assigned a specific role in the occurrence had also been acquitted‑‑‑Crime‑empties secured from the spot were not sent to the Fire‑arm Expert‑‑‑Gun recovered from the accused, according to the report of Fire‑arm Expert, was not in working condition‑‑‑Appeal filed against acquittal of the said 13 co‑accused had been dismissed by High Court for non‑prosecution‑‑‑Evidence against accused was not corroborated by any independent evidence‑‑‑Accused was acquitted in circumstances.

Ch. Amjad Ali Chattha for Appellant.

Ch. Muhammad Nazir for the State.

Date of hearing: 19th November, 2002.

2003 P Cr. L J 966

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeem Ullah Khan Sherwani, JJ

MUHAMMAD BOOTA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1040 of 1996 Criminal Revision No. 21 of 1997 and Murder Reference No. 20 of 1997, heard on 31st July, 2002.

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

----S. 302---Appreciation of evidence---Eye-witnesses including the complainant were not found to be present on the spot at the relevant time ---F.I.R. was lodged after due deliberation and consultation---Nine persons had been implicated by the complainant in the case, but police never arrested eight accused persons and arrested only the present accused for whom there could be no surety regarding his true involvement by the complainant---Crime-empties according to the Fire­ Arm Expert were not fired from the rifle recovered from the accused--­Medical evidence had contradicted the ocular testimony---Motive for the could not be proved by the prosecution---Defence version put forward by the accused seemed to, be more plausible than the prosecution version---Accused was acquitted in circumstances.

1997 SCMR 89 ref.

S.M. Latif Khan Khosa for Appellant.

Nisar Ahmad Baig for the Complainant.

Muhammad Jahangir for the State.

Date of hearing: 31st July, 2002.

2003 P Cr. L J 976

[Lahore]

Before Khawaja Muhammad Sharif and Rustam Ali Malik, JJ

MUHAMMAD AMIR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No 1507 of 2000, heard on 11th November, 2002.

Penal Code (XLV of 18860)---

----S. 302(b)---Appreciation of evidence---Prosecution had failed to prove the motive against the accused---Eye-witnesses did not appear to be present on the scene of occurrence---Conflict between ocular account and medical evidence could not be reconciled---Despite alleged indiscriminate firing by six persons not a single crime-empty was recovered from the spot and mere recovery of gun at the instance of accused could not advance the prosecution case---Delay of 8-1/2 hours in lodging the F. I. R. had made the prosecution version doubtful which seemed to have been recorded after due deliberation and consultation---Accused was acquitted in circumstances.

Syed Imdad Hussain Hamdani for Appellant.

Najam-ul-Hassan Gill for the State.

Date of hearing: 11th November, 2002.

2003 P Cr. L J 981

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD RAFIQ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.434/J and Criminal Revision No.859 of 2001, heard on 1st November, 2002.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence ---F.I.R. was recorded after due deliberation and consultation---Ocular account was in conflict with medical evidence regarding the seats of injuries---Eye-witnesses were contradicted by the Investigating Officer on material points--­Prosecution had failed to prove the motive for the occurrence ---Crime ­empty and the gun recovered in the case had been sent together to the Fire-arms Expert---Report of the Fire-arms Expert was negative--­Accused was given the benefit of doubt and acquitted in circumstances.

Naseer-ud-Din Nayyar for Appellant.

Zulfiqar Ali for the Complainant.

Ch. Muhammad Nazir for the State.

Date of hearing: 1st November, 2002.

2003 P Cr. L J 986

[Lahore]

Before Khawaja Muhammad Sharif, J

MUBARAK ALI ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1978 and Criminal Revision No. 56 of 2000, heard on 29th October, 2002.

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

----S. 302(b)---Appreciation of evidence---Despite the parties being known to each other neither the name nor any description of accused was given in the F.I.R. or even in the inquest report or the site plan--­ Occurrence had taken place during night but no source of light was mentioned in the F.I.R.---Law did not provide for any supplementary statement which was always recorded to fill the lacunas of the prosecution case---No reason for the murder of the deceased was disclosed in the F.I.R.---Crime-empties collected from the spot were sent to Fire-arm Expert after 25 days of the occurrence---Incident was an unwitnessed one---Prosecution case was replete with doubts, benefit of which was to go, to accused as his right---Accused was acquitted in circumstances.

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

----S. 154---Information in cognizable cases---Supplementary statement--­No provision exists in the Criminal Procedure Code about the supplementary statement which is always recorded in order to fill the lacunas in the prosecution case.

Akhtar Masood Khan for Appellant.

Ms. Zarqa Bashir for the State.

Tayyab Mehmood Jafree for the Complainant

Date of hearing: 29th October, 2002

2003 P Cr. L J 990

[Lahore]

Before Bashir A. Mujahid, J

MUHAMMAD HUSSAIN ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos.7352/B of 2001 and 3/B of 2002, decided on 14th January, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss 365/452/302/324/337-H(2)/ 109/148/149---Bail, grant of---Accused were not mentioned in F.I.R., but were nominated after a period of more than one month on a supplementary statement of complainant---Even in said statement, it was stated that accused was driving the truck wherein alleged abductee in the company of other co-accused was traveling---Role attributed to accused was not distinguishable from their co-accused who had already been allowed bail---Submission of challan in Court, was no ground to refuse bail---Accused were admitted to bail, in circumstances.

Mian Anwaar-ul-Haq Ramay and Maqbool Ahmad Bhatti for Petitioners.

Sh. Muhammad Latif for the State.

Ch. Azmat Khan for the Complainant.

2003 P Cr. L J 992

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD IQBAL and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.217/B of 2002, decided on 21st January, 2002.

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 498---Penal Code. (XLV of 1860), Ss.337-H(ii)/440/ 447/506/148/149---Ad-interim pre-arrest bail, confirmation of---Further inquiry---Long-standing civil litigation existed between the parties--­F.I.R. was got registered after a delay of six-days for which no plausible explanation had been given---Nothing was on record to show that weapons recovered from the accused were in fact used during the occurrence as alleged in the F.I.R:---Offence allegedly committed by the accused did not fall within prohibitory clause of S.497, Cr.P.C.---Mala fides of Police/complainant was very much apparent from the record which had brought the case of accused within ambit of further inquiry entitling them to concession of bail---Ad-interim pre-arrest bail already granted to accused, stood confirmed, in circumstances.

Maqbool Ahmad Bhatti for Petitioners.

Abdul Haq for the State.

2003 P Cr. L J 993

[Lahore]

Before Ijaz Ahmad Chaudhry, J

IDREES SHAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4406/B of 2001, decided on 26th October, 2001.

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

----S. 497---Penal Code (XLV of 1860), Ss.406/420/119---Bail, grant of---Accused admittedly was owner of Tractor Trolly in question and had in his possession original documents in respect thereof---Whether accused had sold said Tractor Trolly to and had received some amount as earnest money from the complainant and had handed over Tractor Trolly to him, were questions which were yet to be decided after thorough investigation by the Police---Prima facie it seemed that complainant in connivance with the Police had converted civil dispute into criminal offence---Accused being not involved in the case falling under prohibitory clause of S.497, Cr.P.C. and having made out a case for grant of bail was allowed bail.

Ch. Khan Muhammad Bajwa for Petitioner.

Ms. Tasnim Amin for the State.

2003 P Cr. L J 995

[Lahore]

Before Tassaduq Hussain Jillani and Mian Muhammad Najum-uz-Zaman, JJ

MASSAN alias MASSU---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.7380/B of 2001, decided on 26th December, 2001.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.324/353/224/225/148/ 149/337-A(ii)/337-L---Anti-Terrorism Act (XXVII of 1997), S.7---Bail, grant of---Further inquiry---No allegation was leveled against accused (petitioner) that he resisted his arrest---Accused was neither armed nor any role was attributed to him---Accused party had a counter-version regarding which they had filed a private complaint---Two women of accused's family were also injured during the occurrence---Question of guilt of petitioner, in circumstances, would require further inquiry---Bail was granted to the accused, in circumstances.

Allah Bakhsh Gondel for Petitioner.

Rana Jabbar Khan for the State.

2003 P Cr. L J 997

[Lahore]

Before Khawaja Muhammad Sharif, J

JEHANGIR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6427/B of 2001, decided on 26th November, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11---Bail, grant of---Accused was behind the bars for the last about one year, but challan which was to be submitted by Police within 2. weeks had not been submitted---All co-accused, except one were absconders---No allegation of Zina had been made against the accused--­Alleged abductee had herself filed Constitutional petition in which she had placed on record her affidavit stating thereunder that she was never abducted by anyone---Accused was admitted to bail, in circumstances.

Pervaiz Aslam Chaudhary for Petitioner.

Mibarak Ali for the State.

2003 P Cr. L J 998

[Lahore]

Before Bashir A. Mujahid, J

MUKHTAR AHMAD alias MUKHOO---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.328-J of 2001, decided on 28th October, 2002.

Penal Code (XLV of 1860)----

----Ss. 302/311/34---Criminal Procedure Code (V of 1898), S.345---Appreciation of evidence---Sentence, reduction in---Compounding of offence---All legal heirs of deceased except his mother had compounded the offence with the accused and had waived their right of Qisas and Diyat---Compromise was accepted and conviction under S.311, P.P.C. was recorded with order to pay 1/6th share of Diyat amount to mother of deceased and accused was also sentenced to 14 years' R.I. on the ground that accused was a hardened and habitual offender---Accused had not challenged conviction recorded against him, but had prayed that his sentence be reduced adequately---Conviction recorded against the accused by Trial Court could not be interfered with---Most of the legal heirs of deceased except his mother having patched up with accused and had forgiven him by waiving their right of Qisas and Diyat, maintaining conviction and sentence of 1/6th share of Diyat amount, substantive sentence of 14 .years' R.I : awarded to the accused was reduced to 10 years' R.I. which would meet the ends of justice.

Ahmad Arslan for Appellant (at State expenses)

Bashir Ahmad Gill for the State.

Date of hearing: 28th October, 2002.

2003 P Cr. L J 1002

[Lahore]

Before Mian Muhammad Najum-uz-Zaman­ and Bashir A., Mujahid, JJ

MAHBOOB alias BOOBA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.245 and Murder Reference No.294 of 1998, heard on 17th October, 2002.

Penal Code (XLV of 1860)---

----Ss. 302(a)(b) & 304---Appreciation of evidence---Sentence, reduction in---One of the prosecution witnesses who was also complainant was father of the deceased and other was distantly related to complainant party and had Come, to see complainant---Presence of witnesses at the spot, in circumstances, was very natural and plausible---Both said witnesses were subjected to lengthy cross-examination before the Trial Court, but they remained steadfast and nothing was on record to doubt the credibility of those witnesses---None of the witnesses had any enmity with the accused to falsely implicate him in the case---Ocular account narrated by said witnesses also stood corroborated by Medico-legal Report as duration, location and nature of injury as narrated by eye­witnesses stood affirmed by said piece of evidence---Promptness ' in lodging F.I.R. was another factor to strengthen prosecution case--­Statements of both the eye-witnesses coupled with surrounding circumstances were sufficient to render credibility to prosecution story and to rely upon same for upholding conviction of the accused---Defence plea taken by accused was that he committed murder of deceased in order to protect the honour of his sister, but sister of accused had never appeared before the Police Officer in support of defence plea and for the first time she made statement before the Court as defence witness--­Venue of occurrence and the circumstances showed that immediately before occurrence something else had happened which had been concealed by both the parties and that fact was sufficient to take a lenient view about quantum of sentence of the accused---Nothing being on record to show that during trial, Court had complied with provisions of S.304, P.P.C., conviction of the accused under S.302(a), P.P.C. was not correct and same stood converted into S.302(b), P.P.C. and sentence was converted accordingly.

Hafiz Khalil Ahmad for Appellant.

Iram Sajjad Gull for the State.

Date of hearing: 17th October, 2002.

2003 P Cr. L J 1008

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD PERVAIZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1194 of 2001, heard on 16th October, 2002.

(a) Evidence---

---Appreciation of evidence- --Court has to see the quality of evidence and not the quantity.

(b) Criminal trial---

----Witness---Police witnesses were as good witnesses as public witnesses.

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

----S.13---Explosive Substances Act (XI of 1908), Ss.4 & 5-A--­Appreciation of evidence---No enmity was found on part of prosecution witnesses who were produced by prosecution against the accused---No person from the public in such-like cases dares to appear as a witness--­Statement of Assistant Sub-Inspector of Police was corroborated with statement of Sub-Inspector/S.H.O.---Defence witness was mother of the accused who naturally would support her son---No person from the public was produced---No mala fide on part of prosecution witnesses was shown by the prosecution---Appeal against judgment of Trial Court, was dismissed, in circumstances.

Munsif Awan for Appellant.

Tariq Mehmood Chaudhry Kamboh for the State.

Date of hearing: 16th October, 2002.

2003 P Cr. L J 1011

[Lahore]

Before Asif Saeed Khan Khosa, J

NASIR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.73 of 2001, heard on 29th November, 2002.

Penal Code (XLV of 1860)---

--S. 302(b)---Appreciation of evidence---Complainant had died before Commencement of the trial and one of the prosecution witnesses who was brother of the complainant was interested against the accused and he had admitted before Trial Court that he had not made any statement before Police during investigation---Statement of another prosecution witness did not inspire confidence and other prosecution witness had said nothing about fire of accused hitting the deceased---Accused had not caused any injury to the deceased and injury sustained by prosecution witness as well as the fatal injury received by other deceased were not attributed to the accused---Prosecution's own case was that co-accused alone had launched the initial aggression against complainant party and the accused was not even accompanying the co-accused when incident had started--­Prosecution's own case was that the accused had been attracted to the spot after deceased had already received his injuries at the hands of co­ accused---Prosecution had failed to prove motive set up by it---No weapon had been recovered from the possession of accused---Doctor who conducted post-mortem examination of dead bodies of deceased had not been produced by prosecution before Trial Court---Role attributed to the accused could well be a result of exaggeration on part of complainant party---Accused, in circumstances, was entitled to be extended benefit of doubt---Conviction and sentence awarded to the accused by Trial Court were set aside and he was acquitted of the charge.

Arif Chaudhry for Appellant.

Ishfaq Ahmad Chaudhry for the State.

Date of hearing: 29th November, 2002.

2003 P Cr. L J 1015

[Lahore]

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

MUHAMMAD HUSSAIN and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.881 of 1998 and Murder Reference No.4 of 1999, heard on 15th April, 2003.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Occurrence had taken place during daylight and the F.I.R. in that respect had been lodged with reasonable promptitude giving therein all the necessary details about the offences as well as the offenders---Murder had taken place in the main Chowk of the village rendering the incident well nigh impossible to believe that the occurrence in question could have remained unwitnessed and the perpetrator of the same would have gone unnoticed or unidentified---Claim of eye-witnesses regarding their presence at the spot at the relevant time had not been found to be unreasonable or unbelievable as they, were statedly proceeding at that time from their Dera to their house in the village---Route of the eye-witnesses between their Dera and their house was not disputed and their going to their house at that time was neither unnatural nor unusual---Both the said eye­witnesses had made consistent statements regarding the main incident and their forthright and straightforward statements had not only impressed the Trial Court but the same were confidence-inspiring---Both the eye­witnesses, though closely related to the deceased but at the same time it was equally true that mere relationship with the deceased was never to be considered as a sufficient ground per se for discarding testimonies of eye­witnesses on that score alone---Parties to the case were inimical towards each other and, in such circumstances, the Court had to scrutinize the statements of the witnesses with necessary care and caution ---Co-accused, in the present case, was injured in the motive incident and was the star witness against the complainant party of the present case---If the eye­witnesses in the present case were to get even with the co-accused in connection with the motive case then they could have conveniently attributed the main role in the present case to the said co-accused but they did not do so which was an indication of truthfulness of eye-witnesses produced by the prosecution in the present case---Ocular account furnished by the prosecution, in the present case, had received sufficient corroboration from the motive set up by the prosecution inasmuch as pitched enmity between the parties to the present case had been sufficiently established on the record and in the criminal case forming the motive for the present occurrence the accused was the complainant and the deceased was one of the accused persons---Said co-accused was the injured victim in the said motive case and it was available on the record that the said co-accused was a servant of the present accused---Present accused therefore was the one who was the main defender of the co­ accused and others and in the past too it was he who was championing and expounding their cause and grievance---Motivation on the part of the accused, in such background, to commit the murder of the deceased had not appeared to be in serious doubt---Record also showed that throughout the year following the motive incident altercation had been taking place between the complainant party and the accused party of the present case keeping the flame of hatred and enmity burning---Injured victim of the motive case was a servant of the present accused and keeping in view the notions of prestige and honour of landlords in Pakistan, it was quite believable that the accused had taken upon himself to vindicate his prestige and honour in the village by himself avenging the injury and insult of his servant---Eye-witnesses, in the present case, produced by the prosecution, had also received ample support from the medical evidence inasmuch as the same had confirmed the time of occurrence, the weapon used and the locale of injuries sustained by the deceased as stated by the said eye-witnesses---No weapon though had been recovered from the accused's possession during the investigation of the present case yet such failure on the part of the Investigating Officer was a part of his manifest design to screen the accused by shifting the burden on to his servant, the co-accused from whom fire-arm had been recovered in the case---Record showed that during the investigation of the present case, co-accused who was established to be a servant of the accused, had made an attempt to come to the rescue of his master by volunteering and coming forward with a stand that it ,was he (the Co-accused) and not the accused (his master) who had fired the fatal shot at the deceased, however, in the circumstances in which such stand had been taken by the co-accused (servant of the accused) before the Investigating Officer and subsequently before the Trial Court appeared to be indicative of a wicked stratagem on the part of the Investigating Officer of the present case to screen the accused from the grave change in the case and to pass on the burden in that regard to his volunteering servant which contrivance too, was not an unusual phenomenon in Pakistan---Such a ruse was employed for deflecting the course of justice and it was for this reason that the Trial Court had discarded such aspect of the matter and rightly so---Plea of alibi advanced by the accused had not been established through any independent or reliable evidence inasmuch as the same had been supported not by any documentary evidence but only by the oral testimony of defence witness who had admitted being a fast friend of the accused---Said plea of the accused was not worthy of any serious consideration in the absence of any other independent confirmatory evidence or circumstances in that regard---Held, prosecution had indeed succeeded in proving its case against the accused beyond reasonable doubt---Accused had not only done the deceased to death in cold blood after sitting in ambush but had also tried to deflect the course of justice by setting up his own servant as the main culprit---No mitigating circumstance existed in the case so. as to warrant reduction of accused’s sentence---Normal wages of a crime of murder was death and, in the circumstances, the accused deserved no less---Conviction and sentence of the accused recorded by the Trial Court were upheld and maintained by the High Court with a modification that instead of S.302(a), P.P.C., the accused's conviction shall be deemed to be a conviction under S. 302(b), P.P.C. by way of Ta'zir and the sentence of fine passed by the Trial Court against the accused shall .be treated as an order regarding payment of compensation by the accused to the heirs of the deceased and in case of failure of the accused to pay the same he shall suffer simple imprisonment for six months .instead of rigorous imprisonment ordered by the Trial Court.

Syed Zahid Hussain Bukhari for Appellant.

Miss Siddiqua Altaf Khan for the State.

Date of hearing: 15th April, 2003.

2003 P Cr. L J 1023

[Lahore]

Before Muhammad Nawaz Abbasi and Muhammad Saeed Akhtar, JJ

SHABBIR AHMAD alias SHABBIRA and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 148-T of 1999, heard on 1st October, 2001.

Penal Code (XLV of 1860)---

----Ss. 302/353/186/34---Appreciation of evidence---Material facts relating to the taking place of the occurrence in a street and killing of deceased police officer while he was on duty, were not deniable--­Presence of constables being on duty with deceased at the relevant time was established---None of the witnesses had personal motive or grudge against any of the accused persons who were not even previously known by any of the said witnesses---Deceased police officer and police constables having raided on basis of information regarding activities of the accused, truthfulness of the prosecution story through the testimony of natural witnesses, could not be doubted---Occurrence had taken place in a broad daylight in a street near Bazar and number of people though must have gathered at the spot, but non-production of any of the persons of the locality was understandable as no one could dare to make statement against the accused who had a criminal history and was peddler in the narcotics---Deceased `after the occurrence was taken to the hospital by fellow constables and nothing was on record to suggest that either said constables were not on duty with deceased police officer or they were introduced as eye-witnesses ' of the occurrence subsequently ---Eye­ witnesses account furnished by the companion constables of the deceased, except minor discrepancies and contradictions was consistent, truthful and of unimpeachable character---Said witnesses being stranger to the accused, had no reason either to make a false statement or substitute them for unknown culprits ---Co-accused in his statement under S. 342, Cr.P.C. had admitted that he was dealing in narcotics and that the police used to receive 'Bhatta' from him---Such admission would support prosecution story to the extent that deceased on receipt of information of the activities of the accused raided on him---Evidence of recovery of empty and its matching with the pistol recovered from the accused, even if excluded from consideration, still the prosecution case would be proved through the direct evidence of independent and natural evidence of constables---Ocular account would alone be sufficient to charge against the accused without any supporting Court, in circumstances, had rightly convicted and sentenced the accused under S.302(b), P.P.C.---In. absence of any mitigating circumstance, conviction and sentence awarded to the accused by the Trial Court, were maintained---Case of the co-accused was distinguishable to that of the accused as role assigned to co-accused was only that of instigating the accused and catching hold of the deceased--­Manner in which occurrence had taken place had shown that firing by the accused at the deceased was his individual act---Extending benefit of doubt, co-accused was acquitted of the charge by setting aside his conviction and sentence.

Malik Rab Nawaz Noon for Appellants.

Aftab Ahmad Gujjar for the State.

Date of hearing: 1st October, 2001.

2003 P Cr. L J 1032

[Lahore]

Before Asif Saeed Khan Khosa, J

ALLAH YAR---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, KHUSHAB and others---Respondents

Writ Petition No.971 of 1997, decided on 6th May, 2002.

Criminal Procedure Code (V of 1898)---

----S. 227---Penal Code (XLV of 1860), Ss.337-A(ii)/337-A(iv)/337-F(i)/ 337-F(iii)/337-F(v)/337-F(vi)/148/149---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Amendment of charge---Charge in the case had already been framed and statement of prosecution witness was being recorded by the Trial Court---Upon completion of examination-in- chief of prosecution witness, the complainant filed application before the Trial Court seeking amendment of charge to the effect that S. 324, P.P.C. be added to the charge---Said application was dismissed by the Trial Court and revision filed against dismissal order was also dismissed by Revisional Court and the complainant had filed Constitutional petition against such concurrent orders ---F.I.R. showed that the accused party was equipped with unconventional weapons and not with deadlier weapons---Complainant had not mentioned in the F.I.R. that the accused party had any intention to kill any person and during investigation of the case, complainant had not insisted that S.324, P.P.C. should also be added to the F.I.R. or to be included in the challan submitted by the Police---Complainant for the first time, after completion of examinationin-chief of prosecution witness, had sought to add charge under S.324, P.P.C.---Trial Court as well as revisional Court, after attending to all aspects of the mater, had rightly dismissed application- filed by complainant for adding the charge---Reasonable and just order passed by two Courts below could not be interfered with in Constitutional petition by High Court.

Muhammad Mehmood Ali v. The State 1987 PCr.LJ 312; Yahya Bakhtiar, Advocate v. The State through the Secretary, Ministry of Interior, Government of Pakistan, Islamabad PLD 1983 SC 291; Muhammad Ibrahim and another v. Qudratullah Rudhly and another PLD 1986 Lah. 256 and Muhammad Khan v. Haji Ghulam Qadir Brohi and another 1996 PCr.LJ 99 ref.

Zahid Hussain Khan for Petitioner.

Ishfaq Ahmad Chaudhry for Respondents Nos. 1, 2 and 10, Nemo for Respondents Nos. 3 to 9

Date of hearing: 6th May, 2002.

2003 P Cr. L J 1036

[Lahore]

Before Muhammad Nawaz Abbasi and Maulvi Anwarul Haq, JJ

ZULFIQAR HAIDER ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.274-T of 1999, heard on 5th September, 2001.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 201---Appreciation of evidence---Occurrence was unseen and it was not known that in what manner and at what place deceased was done to death---Recovery of dead body of the deceased on the pointation of the accused was not confidence-inspiring as the police officials who remained associated with investigation, had made contradictory statements---No witness from the locality. of the place of recovery of pistol was associated in recovery proceedings---Accused was in custody. of police on the day when empty was recovered and sent to Forensic Science Laboratory---Possibility of tampering with empty and recovery of pistol before the despatch of the same being not ruled out, positive result of Fire-arm. Expert would not be helpful to the prosecution---No direct or circumstantial evidence was available on record to connect the accused with the commission of offence---Was not known under what circumstances deceased. was killed and who was the assailant---Whether the deceased was fired at the place of recovery of dead body or he was killed at some other place and dead body was thrown in the jungle was also not known---Material fact relating to commission of offence being shrouded in mystery, the recovery of dead body on pointation of the accused even if believed, would only be relevant for purpose of S. 201, P.P.C. and would not be an evidence to establish the charge of murder--­Evidence of recovery of weapon of offence being not confidence­ inspiring, would not be an incriminating evidence to be used against the accused---Prosecution having not been able to discharge the onus of proving the guilt of the accused satisfactorily beyond reasonable doubt, conviction and sentence awarded to the accused by the Trial Court, were set aside extending him benefit of doubt.

Malik. Rab Nawaz Noon for Appellant.

Mirza Farooq Ahmad for the State.

Date of hearing: 5th September, 2001.

2003 P Cr. L J 1044

[Lahore]

Before Mian Muhammad Najum-uz-Zaman and Rustam Ali Malik, JJ

MUHAMMAD SARFRAZ and 3 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 1093, Criminal Revision No.791 of 2000 and Murder Reference No.467 of 2001, heard on 14th January, 2003.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Appreciation of evidence---Case of, two versions and time and place of occurrence as well as weapons with which the deceased was done to death were admitted facts but matter was reported to the police almost after 34 hours of the occurrence---Occurrence had taken place at a thoroughfare at about 10 a.m. and at the time of occurrence besides the complainant, many others were also present at the spot who had witnessed the occurrence, but none of them bothered to inform the police about the occurrence if complainant allegedly remained busy for medical treatment of the deceased---Such inordinate delay in reporting matter to the police had established that F.I.R. was prepared after deliberation---Explanation of the complainant about delay in lodging F.I.R., in circumstances, was of no value and such delay had given strength to the argument of the accused that time was consumed by the prosecution to concoct and fabricate the story for false implication of innocent people---Both eye-witnesses relied upon by the prosecution in support of its case who were related to the deceased, though had supported the prosecution case, but .inordinate delay in lodging the F.I.R. was sufficient to doubt their presence at the spot as well as their credibility---Story narrated by witnesses on the face of ,it was not plausible---Prosecution case was also belied by Investigating Officer and other Police Officials as deceased was done to death under different circumstances than narrated by them---Defence plea that at the time of occurrence, the deceased, who was a man of bad character, attempted to forcibly abduct real sister of the accused, but at the nick of time the accused alongwith others intercepted and got released her from the clutches of the deceased after causing fire-arm injuries to him, stood established from the statements of Investigating Officer, victim girl and other defence witnesses---Details of incident narrated by the defence which was more closer to the truth, should have been accepted while ignoring the prosecution case--Charge against the accused under S.302(b), P.P.C., having not been made out, his conviction and sentence under said section was set aside and instead he stood convicted under S.302(c), P.P.C. and was sentenced accordingly---Conviction and sentence of co-accused were set aside and they all were acquitted from the charges against them.

Ch. Ghulam Murtaza Khan for Appellants.

Mian Muhammad Aslam Arain for the Complainant.

Malik Muhammad Aslam for the State

Date of hearing: 14th January, 2003.

2003 P Cr. L J 1052

[Lahore]

Before Bashir A. Mujahid, J

MUHAMMAD AKRAM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.916 and Criminal Revision No.435 of 2001, heard on 24th January, 2003.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 302(c)---Appreciation of evidence---Accused was nominated as main culprit in promptly recorded F.I.R.---Complainant party and accused being residents of the same locality, there was no possibility of mistaken identity---Accused had caused fatal injury to the deceased with the rifle and motive was also alleged against him---Accused had been found guilty during the investigation---Complainant party had no previous enmity for false implication of the accused or substitution by letting off the real culprits--Complainant was though real father of the deceased and the prosecution witness was real cousin of the deceased, but mere relationship of prosecution witnesses with the deceased was no ground to discard their testimony unless they were proved to be inimical and interested witnesses and no such evidence had been brought on record by the defence to prove that they were inimical towards the accused---Ocular account furnished by complainant and prosecution witness had fully been corroborated by the medical evidence---Prosecution case against the accused, in circumstances, had fully been established beyond any shadow of doubt---Contention that at the most, case against the accused fell under S.302(c), P.P.C. instead of S.302(b), P.P.C., had no force as according to prosecution story the accused way-laid armed with rifle and launched the attack---Suggestion of-­the defence that occurrence had taken place in the fields, was also without any basis because blood-stained earth was taken into possession where, according to the prosecution, occurrence took place---Conviction and sentence recorded by the Trial Court against the accused, could not be interfered with, in circumstances.

M.A. Zafar and Zafar Iqbal Chauhan for Appellant.

Abdur Rauf Farooqi for the Complainant.

Saeed Ahmad for the State.

Dates of hearing: 23rd and 24th January, 2003.

2003 P Cr. L J 1057

[Lahore]

Before Ch. Iftikhar Hussain, J

MUKHTIYAR AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2763/B of 2002, decided on 23rd October, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10/ 16---Bail, grant of---Further inquiry---Allegation against the accused was that he allegedly had enticed away the complainant and had subjected her to Zina-bil-Jabr--- Accused denied the allegation and contended that complainant of her -own accord had entered into a valid Nikah with him and that she had been living with him as his wife and subsequently she under the pressure of her parents had been forced to change .her stand---Accused had brought suit for restitution of conjugal rights against the complainant which was pending adjudication before Family Court---Police Record had revealed that in the ultimate investigation, it had been found that the complainant was consenting party and eloped with the accused of her own accord---Was yet to be seen that whether statement of the complainant could attract any credence as against the accused while she had exculpated herself from the charge--­Case of the accused, in circumstances, required further inquiry into his guilt---Case of the accused falling under subsection (2) of S..497, Cr.P.C., he was admitted to bail.

Ch. Muhammad Anwar-ul-Haq for Petitioner.

Iftikhar Ibrahim Qureshi for the State assisted by Malik Altaf Hussain Rawn for the Complainant.

Date of hearing: 23rd October, 2002.

2003 P Cr. L J 1059

[Lahore]

Before Mian Muhammad Najum-uz-Zaman and Rustam Ali Malik, JJ

ABDUL QAYYUM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.323 of 1997 and Murder Reference No.475 of 1998, heard on 21st January, 2003.

Penal Code (XLV of 1860)----

----Ss. 302(b)/324/337-F(ii)/34---Sentence, reduction in---Appreciation of evidence---Presence of both eye-witnesses at the spot was beyond any shadow of doubt---Duration of fire-arm injury on person of the injured prosecution witness tallied with the time of occurrence, his presence, at the spot thus could not be doubted---Both eye-witnesses had deposed in a very natural manner---Evidence of both eye-witnesses which rang true and inspired confidence, could be relied upon to uphold conviction of the, accused persons---Prosecution, however, had failed to prove motive part of its case and immediate cause for murder of the deceased was shrouded in mystery---Accused did not challenge his conviction, but had prayed for reduction in his sentence on grounds that motive for occurrence was' never proved by prosecution during the trial and that at the time of occurrence the accused was minor---Record proved that on the day of occurrence, the accused was minor---Awarding of capital sentence to the accused, in circumstances, was not appropriate---Maintaining conviction of the accused, his sentence was reduced from death to imprisonment for life with benefit of S.382-B, Cr.P.C.

Muhammad Iqbal Bhatti for Appellant.

Ch. Muhammad Zahoor Nasir for the Complainant.

Ch. Imtiaz Ahmed for the State.

Date of hearing: 21st January, 2003.

2003 P Cr. L J 1065

[Lahore]

Before M. Naeemullah Khan Sherwani, J

MUHAMMAD IQBAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.55/B of 2003, decided on 20th January, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/324/337-A(i)/337-F(i), (iii)/34/109---Bail, grant of ---F.I,R. was lodged promptly---Both sides being fully acquainted with each other, there was no doubt with regard to identity of the assailants---Not only the complainant, but prosecution witnesses had also wholeheartedly supported F.I.R. version during course of investigation---Injured prosecution witness who was brother of the deceased, was not expected to make a false statement implicating the accused wrongly for murder of his real brother---Opinion of the police, was no legal evidence in the case---Plea of innocence of the accused, was to be scrutinized by the Trial Court after recording of some material evidence in the case---Prima facie reasonable grounds appeared for believing that the accused was guilty of an offence punishable with death or imprisonment for life ---Challan in the case had already been submitted before the Trial Court after making addition of S.324, P.P.C. in the list of offences---In absence of good reason to allow bail to the accused, application for bail filed by the accused, was dismissed being meritless.

C.M. Sarwar for Petitioner.

A.H. Masood for the State.

Date of hearing: 20th January, 2003.

2003 P Cr. L J 1067

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD AFZAL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1230 of 1998 and Criminal Revision No.128 of 1999, heard on 24th January, 2003.

Penal Code (XLV of 1860)----

----Ss. 302(b) & 302(c)---Appreciation of evidence---Case was of two versions; one put forward by the accused and the other introduced by the complainant---Accused, no doubt, had, not taken the specific plea of self ­defence in his statement under S.342, Cr.P.C., but the fact remained that three persons from the side of accused including the accused himself were seriously injured---Injuries on the person of the accused were suppressed by the prosecution---Both parties had not come to the Court with clean hands and they had suppressed the real facts and it could safely be said, in circumstances, that the accused had acted in right of self-defence--­Case of the accused, in circumstances, was covered by provisions of S.302(c), P.P.C. and not under S. 302(b), P.P.C.---Conviction of the accused was altered from S.302(b), P.P.C. to one under S.302(c), P.P.C. and was sentenced accordingly.

Kh. Haris Ahmad for Appellant.

Muhammad Aslam Khokhar for the State.

Muhammad Akram Awan for the Complainant.

Date of hearing: 24th January, 2003.

2003 P Cr. L J 1080

[Lahore]

Before Khawaja Muhammad Sharif and Mian Muhammad Jahangir, JJ

MALOOK HUSSAIN ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.380 of 1997 and Murder Reference No.236 of 1999, heard on 28th January, 2003.

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

----S. 302(b), 310 & 311---Criminal Procedure Code (V of 1898), S.345---Appreciation of evidence---Compounding of offence---Motive in the case was double-edged weapon as murder of deceased was committed in order to take revenge of murder of one who was earlier murdered by the complainant party---Occurrence had taken place in the broad daylight and matter was reported on the same day without delay---No possibility of false implication existed ---Co-accused were rightly acquitted by the Trial Court as no injury was attributed to them---Case against the accused though had fully been proved, but some mitigating circumstances existed as the case was of single shot which was not repeated and compromise was arrived at between the accused and the legal heirs of the deceased--­Conviction of the accused was maintained, but death sentence awarded to the accused by the Trial Court, was converted to life imprisonment.

PLD 1996 SC 122 ref.

Mian Nusrat Ullah for Appellant.

Mrs. Tasneem Amin for the State.

Date of hearing: 28th January, 2003

2003 P Cr. LJ 1097

[Lahore]

Before Tassaduq Hussain Jilani and Bashir A. Mujahid, JJ

Mirza ABID HUSSAIN BEG---Petitioner

Versus

FEDERATION OF PAKISTAN through Chairman, National Accountability Bureau, Chief Executive, Secretariat, Islamabad---Respondent

Writ Petition No. 44 of 2002, heard on 21st April, 2003.

Criminal Procedure Code (V of 1898)---

----S.497, first proviso---Constitution of Pakistan (1973), Art. 199---Grant of bail on medical ground---Accused who was above seventy-five years of age had sought bail on medical ground---Accused who was behind the bars for more than other year, had appended several documents to indicate that even prior to his detention, he not only was heart patient, but also had diabetes and other ailments---Two reports, one issued by Punjab Institute of Cardiology and other issued by Board of Doctors of Children's Hospital, had indicated that accused could not be treated in jail---No likelihood was of abscondence of the accused---Accused was entitled to grant of bail in circumstances.

Mian Manzoor Ahmed Wattoo v. The State 2000 SCMR 107; Muhammad Saeed Mehdi v. The State and 2 others 2002 SCMR 282; Zakhim Khan Masood v. The State 1998 SCMR 1065; Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607; Major (Rtd.) Mushtaq Ahmed v. The State Criminal Miscellaneous No.503-B of 2002; Ch. Zulfiqar Ali v. The State PLD 2002 SC 546 and Haji Nek Muhammad v. The State Criminal Miscellaneous No.28-L of 2001 in Cr.P. L.A. No.214-L of 2001 ref.

Ghazanfar Ali Syed for Petitioner

M. Bilal Khan for the NAB.

Date of hearing: 21st April, 2003.

2003 P Cr. L J 1101

[Lahore]

Before Ch. Iftikhar Hussain, J

FIDA HUSSAIN ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.649/B of 2002, decides on 20th March, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 395/411---Bail, grant of--­Further inquiry---Accused was behind the bars for almost one year and three months and was not put to any identification pest---Nothing was recovered from the accused---Case of accused calling for further inquiry into his guilt---No doubt some cases of similar nature were registered against the accused, but he was previously a non-convict---Merely due to registration of cases against the accused, he could not be held dangerous, desperate or hardened criminal---Accused, was entitled to the grant of bail, in circumstances.

Khan Dil Muhammad Khan Alizai for Petitioner.

Muhammad Ajmal Qureshi for the State.

Date of hearing: 20th March, 2002.

2003 P Cr. L J 1106

[Lahore]

Before Raja Muhammad Sabir, J

MUHAMMAD BAKHSH alias BILA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.630-B of 2002, decided on 21st March, 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), Ss. 201 & 338(c)---Bail, grant of---Accused was father of the girl who allegedly delivered an illegitimate baby---Role attributed to the accused was that he helped in burial of said newly born baby and in so doing he caused disappearance of evidence of the offence---No other allegation was leveled against the accused, who had not been charged with any offence falling with in the prohibitory clause of S.497, Cr.P.C.---Trial of the case was to take considerable long time---Accused was admitted to bail, in circumstances.

Syed Shehbaz Ali for Petitioner.

Jamil Ahmad Chohan for the State.

Date of hearing: 21st March, 2002.

2003 P Cr. L J 1108

[Lahore]

Before M. Naeem Ullah Khan Sherwani and Mian Muhammad Jahangir, JJ

AMAN ULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1884 of 2001, heard on 15th January, 2003.

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

----S. 9(c)---Sentence, reduction in---Appreciation of evidence---Evidence produced by prosecution against the accused was very convincing and no justification existed to falsely involve the accused in a case of recovery of heavy quantity of the narcotics---Defence version advanced by the accused was totally afterthought and worth no reliance---Accused was facing the agony of trial since 11-3-2001 and was behind the bars--­Conviction passed by the Trial Court against accused was maintained, but sentence of ten years awarded to him by the Trial Court was reduced to seven years.

Ch. Shahid Tabassum for Appellant.

Maqbool Ahmad Qureshi for the State.

Date of hearing: 15th January, 2003.

2003 P Cr. L J 1115

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

FATEH MUHAMMAD ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.324/B of 2003, decided on 3rd February, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 409---Prevention of Corruption Act (II of 1947), S. 5(2)---Bail, grant of---Allegation against the accused who was Patwari of Halqa concerned was that in his official capacity he received amount of agricultural tax for the relevant year from inhabitants, much more than the amount fixed by Revenue Department, but deposited less amount with the Government Treasury and misappropriated rest of the amount---Prima facie, circumstances were sufficient to show the involvement of the- accused in the commission of the offence falling within, the prohibitory clause of S.497, Cr.P.C.---Bail was refused in circumstances.

Pervaiz Inayat Malik for Petitioner.

Mian Abdul Qayum Anjum for the State.

Asim Iftikhar, Circle Officer.

Date of hearing: 3rd February, 2003.

2003 P Cr. L J 1117

[Lahore]

Before Muhammad Farrukh Mahmud, J

FAIZ MUHAMMAD --- Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1263/B of 2001, decided on 3rd July, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (3CLV of 1860), Ss. 302/324/148/149/109--­Bail, grant of---Further inquiry---Accused did not cause any injury to the deceased as he died because of fire-arm injury, while the accused was allegedly armed with Sota---Precise allegation against the accused was that he caused simple injuries to the prosecution witnesses, but according to Medico-Legal Report prosecution witnesses had received one injury each---Accused who was aged about 70/75 years though was present at place of occurrence, but he did not participate in the occurrence in any manner and no recovery had been effected from him---Accused had not premeditated the offence and it was the complainant party who had come to the land which was admittedly in possession of the accused party and was in dispute---Question of vicarious liability of the accused would be determined by the Trial Court after recording of evidence---Injuries attributed to the accused were simple in nature and question whether he shared common intention with the other accused, needed further probe and inquiry within purview of S.497(2), Cr.P.C.---Accused was granted bail.

Syed Shahbaz Ali Rizvi for Petitioner.

Muhammad Ibrahim Farooq for the State.

Date of hearing: 3rd July, 2001.

2003 P Cr. L J 1119

[Lahore]

Before Tassaduq Hussain Jilani, J

ARSHAD BUTT---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos. 2085-B, 2238-B, 2068-B and 2086-B of 2003, decided on 29th April, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 436, 427 & 109--Explosive Substances Act (XI of 1908), Ss. 4 & 5---Bail---Sudden explosion of an imported container containing contraband fireworks at the time of unloading AM inspection by the Customs Officials resulting in death of 16 persons and injury to more than 30 persons at the Dry Port—import and Clearing Agent had dishonestly mentioned in the relevant papers that there were cosmetic goods in the container and got the container desealed through Security Staff whose duty was to deseal the container after a requisite verification and in the presence of the clearing agent who had applied for the clearance---Had there been correct declaration in the requisite documents that these were firework, the container could have not been imported, even if at the Dry Port Clearing Agent, the concerned Officials and the Security Supervisor had been honest to their duty, the entire container and the fireworks would have been confiscated, the security arrangements would have been better and the tragedy could have been averted--­Reasonable grounds, in circumstances, thus existed to believe that the accused persons (petitioners) were connected with the alleged offence---High Court dismissed the bail applications of the accused persons.

Muhammad Ahsan Bhoon for Petitioner (in Criminal Miscellaneous Nos.2085-B and 2086-B of 2003).

Munir Ahmed Bhatti with Malik Abdul Aziz Kenwal for Petitioner (in Criminal Miscellaneous No.208-B of 2003).

Khawaja Sultan Ahmed for Petitioner (in Criminal Miscellaneous No-2238-B of 2003).

M. Bilal Khan, Addl. A.-G. assisted by Abdul Salam Sindhu for the State.

Khan Muhammad Varik for the Custom Department with Sarfraz Ahmed Cheema.

2003 P Cr. L J 1128

[Lahore]

Before M. Naeem Ullah Khan Sherwani and Mian Muhammad Jahangier, JJ

AMANULLAH---Appellant

versus

THE STATE---Respondent

Criminal. Appeal No.640 of 2001, heard on 13th, January, 2003

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

----S. 9(c)---Appreciation of evidence---Police officials who were prosecution witnesses had deposed about apprehending the accused and recovery of '3 Kilograms Charas from him and taking same into possession by S.H.O., faced the test of cross-examination, but no material discrepancy could come on the record---Said S.H.O. having gone abroad, his signatures were identified by a Police Official who worked, with S.H.O. And was member of raiding party---Said Police Official could depose that he identified the writing of S.H.O.---If S.H.O. could not be examined, it had no adverse effect on the prosecution case---Report of Chemical Examiner was positive in nature---Defence advanced by the accused appeared to be afterthought and documents brought by him on the record could not provide any strength to defence version---Prosecution's case having been established and there being no misreading and non-reading of evidence on part of Trial Court, judgment whereby accused was convicted and sentenced, did not call for any interference---Conviction and sentence passed by the Trial Court, were maintained.

Muhammad Sanaullah Khan for Appellant.

M.B. Badar Sarmadi for the State.

Date of hearing: 13th January, 2003

2003 P Cr. L J 1131

[Lahore]

Before Khawaja Muhammad Sharif ahd Rustam Ali Malik, JJ

KHALID---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.3/J of 1999, Criminal Appeal No. 100/J and Murder Reference No.344 of 1998, heard on 17th December, .2002.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Appreciation of evidence---Accused, who was named in the F.I.R., was armed with a gun of .12-bore at time of occurrence and had fired two shots at the deceased as a result of which he had fallen down and later on had expired in the hospital---While witnessing an occurrence of such a nature, the eye-witness could not be expected to be able to notice as to which of the pellets was hitting which part of the body of the victim---Discrepancy, if any, in that respect, in circumstances, would not be of such a nature as to strike down prosecution story from its very foundation ---F.I.R. was promptly lodged---Doctor who conducted post-mortem of the deceased stated that post-mortem was delayed because persons who identified the dead body of the deceased asked the doctor to conduct port-mortem examination on arrival of father of the deceased---Such tact could be considered only a concession given by doctor to the accused---Doctor was to conduct post­mortem examination with promptitude and should not have postponed it .on request of persons who hadidentified the dead body---Father of deceased would not like to substitute accused for the actual culprits and both prosecution witnesses who, were father and brother of the deceased could not be considered as chance witnesses and their testimony which otherwise inspired confidence, could not be excluded from consideration merely on account of their relationship with the deceased---Weapon of .offence and live cartridges were also recovered from house of the accused on his pointation---Motive of occurrence was also established--­Prosecution, in circumstances, having fully established charge against the accused under S. 302(b); P.P.C., he was rightly convicted --- Co-accused though was present at the time of occurrence armed with revolver and also had fired a shot with the same at the deceased, but that shot had missed and hit the wall---No injury on the person of the deceased was attributed to the .co-accused---Had the co-accused common intention with the accused to cause Qatl-e-Amd, of the deceased,' he could have fired the second shot on the deceased, but he did -not do so---Since prosecution had failed to prove that co-accused was having common intention with the accused, co-accused could not be convicted on charge under S.302/34, P.P.C.---Conviction recorded against co­ accused by Trial Court was set aside extending him benefit of doubt.

Ehsan Qadir Shah for Appellant.

Mrs. Iram Sajjad Gul for the State.

Date of hearing: 17th December, 2002.

2003 P Cr. L J 1141

[Lahore]

Before M. Naeemullah Khan Sherwani, J

GHULAM SHABBIR and 4 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.36 of 1993, decided on 9th January, 2003.

Penal Code (XLV of 1860)----

-----Ss. 302/149—Appreciation of evidence ---Four accused persons were arrested at the spot and police officer who arrested them in his exhaustive statement had narrated the manner and modes of their arrest and such statement of Police officer which inspired confidence was further corroborated by statement of other prosecution witness—Spot arrest of accused had spoken of involvement of the accused in the commission of crime in question in high tone---recovery of weapons was also made from possession of the accused at the time of their arrest---Police secured eight empties of bullets and cartridges from the spot---Such piece of evidence afforded maximum corroboration regarding the guilt of the accused---Police though did not dispatch the recovered weapons to the Forensic science Laboratory for comparison purposes, but fact was that same were recovered from possession of the accused at the time of their arrest--- Independent witness produced by the prosecution had no adverse interest against the accused and had no reason to furnish false voucher against the accused to implicate the accused wrongly in the case---Presence of said witness produced by the prosecution had no adverse interest against the accused and had no reason to furnish false voucher against the accused and had no reason to furnish false voucher against the accused to implicate the accuse wrongly in the case---Presence of said witnesses at the spot could no be doubted and they all supported F.I.R. version whole heartedly---All said witnesses attributed fatal injury to the accuse on head of the deceased and part played by the accused coincided with medical evidence---Deceased was husband of sister of complainant and it could not be imagined that complainant would spare actual killer of his brother-in-law just to involve another innocent person---Participation of complainant in occurrence o n the strength of ocular account, medical evidence and motive was fully proved---Mere fact that remaining accused had earned acquittal on the basis of multifarious reasons would not constitute ground to smash case of prosecution qua the accused---F.I.R. was promptly lodged---Alleged contradictions of improvement made by witnesses would not materially affect case of prosecution as said witnesses had made statement after more that three years of the occurrence---Even otherwise contradictions by themselves would not lead result that whatever witnesses had stated on salient features of the case and which conformed to other evidence on record, was to be thrown out---Evidence of prosecution witness which inspired confidence, was rightly believed by Trial Court while holding the accuse guilty of the charges against them---Prosecution, in circumstances, had successfully proved charges against the accused and accused had miserably filed to point out circumstances relaying upon which their sentences could be reduced---Conviction had sentence awarded to he accused by the Trial Court, were maintained, in circumstances.

Pir S.A. Rashid for Appellants.

A.H. Masood for the State.

Ch. Naseed Ahmed Sandhu for the Complaint.

Date of hearing: 16th December, 2002.

2003 P Cr. L J 1151

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD RAFIQUE---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No..3250/B of 2002, decided on 13th January,2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302 & 319---Bail, grant of---Further inquiry---Framing of formal charge against the accused--Opinion of police ---F.I.R. showed that the accused due, to suspicion of illicit intimacy between his wife and the deceased, had fired straight shot of at the deceased---Superintendent of Police concerned, in investigation, had found that death of the deceased had occurred due to fire having hit the deceased accidentally and that the accused had committed offence under S.319, P.P.C. and not under S.302, P.P.C.---Accused, on submission of challan, requested to the Trial Court to frame formal charge against him under S. 319, P.P.C., but his request was declined by Trial Court observing that initially the formal charge would be framed under S. 302 P.P C.---Constitutional petition filed by, the accused against order of Trial court, was dismissed by the High Court---Framing of formal charge against the accused was another thing and question of grant, or otherwise of bail him with reference to existence of prima facie case against him or the scope of further inquiry into his guilt, was another---Trial Court though had observed that initially formal charge against the accused would be under S. 302, P.P.C., but in view of the opinion of police officer of the rank of S.P. that is was offence under S.319, P.P.C,. it was yet to be seen as to under which offence accused would be ultimately liable---Opinion of the Police through was not binding upon the Court, but at the same time was relevant circumstance to be taken into consideration while deciding bail application---Co-accused had been declared innocent in the case---Case against the accused calling for further inquiry, he was admitted to bail.

Muhmmad Khalid Abdullah Changwani for Prtitioner.

Sh. Arshad Ali for the State, Date of hearing 13th Junuary, 2003.

2003 P Cr. L J 1154

[Lahore]

Before M. Naeem Ullah Khan Sherwani and Mian Muhammad Jahangier, JJ

MUHAMMAD JAFFAR SALEEM and another--- Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.263 of 2000, heard on 22nd January, 2003.

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

----Ss. 302(b)/324/34---Appreciation of evidence---F.I.R. was promptly lodged in the case and ocular account- furnished by prosecution witnesses found full corroboration from medical evidence---While cross-examining prosecution witnesses, no material discrepancy had come on record due to which their testimony could be doubted---Statements of said witnesses inspired confidence and same were worth reliance---Motive behind the occurrence was also proved through statements of eye-witnesses who though were related to the deceased, but no long standing enmity could be brought on the record due to which it could be believed that they had advanced a false motive or that they substituted the real culprits in the case---Defence version advanced by one of the accused persons proved to be afterthought and in case of other accused no sound evidence could be brought on record to prove that he was not present at the shot---Trial Court had discussed each and every aspect of the prosecution case and defence version in detail which appeared to be convincing and called for no interference---Judgment passed by Trial Court convicting and sentencing the accused, could not be interfered with, in circumstances.

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

----Ss. 302(b)/324/34---Appreciation of evidence---Site plan---Site plan, no doubt, was a substantive piece of evidence, but the facts and circumstances of each case should be taken into consideration to arrive at a just decision.

Dr. A. Basit for Appellants.

Sadaqat Mehmood Butt for the State.

Date of hearing: 22nd January, 2003.

2003 P Cr. L J 1164

[Lahore]

Before Asif Saeed Khan Khosa, J

PHULLAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1966/B of 2001, decided on 6th September, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/34/109---Bail, grant of---Further inquiry ---Accused had not been nominated in the F.I.R. as one of the perpetrators of the offences in question---Investigating Officer had allegedly recovered a bicycle, an empty cartridge and some burnt pieces of cigarettes at the instance of the accused---Statement of one woman was recorded by Investigating Officer after 16 days of occurrence to the effect that she had seen the accused running away at a place in the outskirts of the village soon after the occurrence and that the accused at that time was empty-handed---In absence of any direct evidence, prosecution was relying upon said circumstantial evidence so as to connect accused with the offence---Worth and evidentiary value of said circumstantial evidence would be gone into by Trial Court at the time of trial on bases of evidence to be led before it---Investigation regarding the accused had already been finalized and the accused was behind the bars for the last about eighteen months---Case against the accused calling for further inquiry, he was admitted to bail.

Khan Dil Muhammad Khan Alizai for Petitioner.

Syed Anwar-ul-Haq for the State.

Date of hearing: 6th September, 2001.

2003 P Cr. L J 1170

[Lahore]

Before M. Naeem Ullah Khan Sherwani and Mian Muhammad Jahangier, JJ

NAIMAT ULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1271 of 2002, heard on 8th January, 2003.

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

----Ss. 9-A & 9-B---Sentence, reduction in---Appreciation of evidence--­Accused being known at the time of raid, there was no confusion about identification of the accused, especially when raid was conducted in the day light---Prosecution witness was cross-examined at length but his statement was not proved to be contradictory with statement of other prosecution witnesses---Statements of both recovery witnesses were consistent to each other and provide strength to prosecution version--­Report of Chemical Examiner was corroborative piece of evidence, whereas defence version was an afterthought as the accused could not prove enmity with the police---Conviction of the accused was maintained, but the accused having already undergone sufficient period of his sentence, taking lenient view, his sentence was reduced to already undergone.

Aman Ullah Khan Niazi for Appellant.

Awais Azeem for the State.

Date of hearing: 8th January, 2003.

2003 P Cr. L J 1174

[Lahore]

Before Bashir A. Mujahid, J

SHAHADAT---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4454/B of 2001, decided on 10th September 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10(2)---Bail, grant of---F.I.R. was lodged with four days unexplained delay---Since arrest of the accused no material progress had been made in conclusion of the trial---All the alleged eye-witnesses of the occurrence were real brothers---Prima facie allegation against the accused had not been corroborated by any other independent witness---No useful purpose could be served by keeping the accused behind the bars for an indefinite period---Accused was admitted to bail, in circumstance.

Shah Ahmad Baloch for Petitioner.

Muhammad Iqbal for the State.

Date of hearing: 10th September, 2001.

2003 P Cr. L J 1175

[Lahore]

Before Tassaduq Hussain Jilani, J

Mst. NOOR BAKHT---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION, BHAWANA and 13 others---Respondents

Writ Petition No.4592 of 2003, heard on 18th April, 2003.

Criminal Procedure Code (V of 1898)---

----Ss. 173 & 235---Penal Code (XLV of 1860), Ss.302/364/34/109--­Cohstitution of Pakistan (1973), Art.199---Constitutional petition---Four minor children were allegedly abducted and case under S.364, P.P.C. was registered at Police Station in District `S' with regard to said occurrence---Very next day two out of four minor children having been murdered, case under Ss.302/34/109, P.P.C. was registered about the murder at Police Station in District 'J'---Both cases (under Ss.364, 302/34 & 109, P.P.C.) were registered in two different Districts 'S' and 'J' on account of different places of alleged crimes ---Challan in case of double murder registered under Ss.302/34/109, P.P.C. in District 'J' was duly submitted in Trial Court at District 'J' which was seized of the same, but despite a lapse of almost two years challan in abduction case under S.364, P.P.C., was not submitted---Petitioner in petition filed under Art.199 of the Constitution had prayed that direction be issued to Police Officer concerned to submit challan in case registered under S.364, P.P.C. before Trial Court which had seized double murder case of abducted children---Surrounding circumstances in both the cases had reflected a series of acts and were so connected that they, prima facie had constituted same transaction---State had no objection if challan under S.173, Cr.P.C. in abduction case under S.364, P.P.C. be directed to be submitted before the same Court which was trying double murder case under Ss.302/34/109, P.P.C.---District Police Officer of District 'S' was directed by the High Court to ensure that challan under S.173, Cr.P.C. in case registered under S.364, P.P.C., was submitted before Trial Court in District 'J' which had seized of trial in case under Ss.302/34/109, P.P.C., within specified period---Offences being heinous, Trial Court to which challan was submitted, was directed to ensure that trial of both cases was conducted together and was concluded within five months of receipt of order.

Ch. Zubairul Haq Rajoka for Petitioner.

M. Bilal Khan, Addl. A.-G. with Mian Nawaz, D.S.P. (Legal), Sargodha for Respondents.

Date of hearing: 18th April, 2003.

2003 P Cr. L J 1179

[Lahore]

Before Ch. Iftikhar Hussain, J

GHULAM HAIDER and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.605/B of 2003, decided on 14th April, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.380/411/457---Bail, grant of---Further inquiry-Complainant had laid suspicion against accused persons that they had trespassed his house and had stolen away his certain articles and cash amount---Said items had not been recovered from the accused and instead they allegedly had paid amount to complainant as price or compensation of the said articles---Question that if in such circumstances of case, accused persons could be held liable for alleged offence, needed consideration---Case against accused persons was covered under subsection (2) of S.497, Cr.P.C. calling for further inquiry into their guilt---Accused were behind bars since their arrest and were previous non-convicts---Accused were admitted to bail, in circumstances.

Malik Muhammad Latif Khokhar for Petitioners.

Mehr Khalil-ur-Rehman for the State.

2003 P Cr. L J 1180

[Lahore]

Before Khawaja Muhammad Sharif, J

MUJAHID HUSSAIN alias ZAHID HUSSAIN ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1554 and Criminal Revision No.751 of 2001, heard on 2nd April, 2003.

Penal Code (XLV of 1860)---

----Ss. 302(c) & 100---Appreciation of evidence---Private defence, right of---Both complainant and other eye-witness produced by prosecution were brother and father of deceased---No independent witness had been produced from locality despite place of occurrence was surrounded by many houses---Case was of two versions---Version of complainant was that murder of deceased was committed by accused intentionally while version of the accused was that he had acted while using his right of self­defence---Accused had asserted that his intention behind his fire was not to commit murder of deceased, but it was only to injure him to save his life---Version of accused seemed to be more plausible and convincing one---Investigating Officer in his cross-examination had admitted whole version of accused which was already made by accused at the very outset at the time of his arrest---First version of accused was always taken to be very important for just decision of a case---Even finding of Trial Court was that accused had acted while using his right of self-defence--­Statement of the doctor, revealed that shot was fired from distance of 2 to 3 feet while in the site plan distance between deceased and accused was given as one foot---Accused having acted while using his right of self­defence as indicated in sub-clause first of S.100, P.P.C., sentence of accused awarded to him under S.302(c), P.P.C. was converted to period which accused had already undergone---No compensation and fine could be awarded, in cases of right of self-defence or grave and sudden provocation therefore, sentence of fine awarded to accused, was also set aside.

Muhammad Yaqub v. The State PLD 1969 Lah. 548 and Mehraj Begum v. Ijaz Ahmad and others PLD 1982 SC 294 ref.

Iqbal Hussain for Appellant (on State expenses).

Amjad Hussain for the Complainant.

Mirza Abdullah Baig for the State.

Date of hearing: 2nd April, 2003.

2003 P Cr. L J 1186

[Lahore]

Before Mian Muhammad Najum-uz-Zaman and Rustam Ali Malik, JJ

MUHAMMAD RIAZ and 3 others---Appellants, Versus

THE STATE---Respondent

Criminal Appeal No.456 and Murder Reference No.162 of 1998, heard on 31st March, 2003.

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

----S. 302(b)/34---Appreciation of evidence---Neither any empty was recovered from the spot nor the weapon recovered at the instance of accused was sent to Forensic Science Laboratory for its examination--­Nothing, in circumstances, was on record to show that the weapon recovered from accused was the same which was used during occurrence---Said piece of evidence relied upon by prosecution, had no value and same could not be taken into consideration---Long standing enmity between parties stood established from statement of complainant as well as from statement of eye-witnesses---Possibility of false implication of accused persons, could not be ruled out in circumstances--­Medico-Legal Report had revealed that deceased at the relevant time was semi-conscious, his blood pressure and pulse were nil, in view of said condition of deceased, it could not be believed that he would be in a position to make statement or narrate circumstances under which he had received injuries---Dying declaration of deceased allegedly made by him before complainant whose presence at the spot was also doubtful, could not be relied upon for upholding conviction of accused on charge of capital sentence---Ocular account was narrated by prosecution witnesses who were related inter se as well as to the complainant party and also had a long-standing enmity with accused---Presence of prosecution witnesses at the time of occurrence was also doubtful and statements made by said witnesses were in conflict with Medico-Legal Report on the point of location of injuries allegedly caused by accused---Statements of said witnesses, in absence of any independent corroborative piece of evidence, could not be relied upon---Unexplained delay of 17 hours in lodging F.I.R., was another factor to throw doubt on the credibility of prosecution case---Three accused were found innocent during investigation conducted by many Police Officials---Opinion of Police, though was not a proof of innocence or guilt of accused, but impact of such an opinion could not be thrown away to winds altogether---Record of case had revealed that deceased was a man of bad character--­Statement of Police Officer had revealed that name of deceased as well as complainant found mentioned in list of bundle 'A' of the police station and that they had many enemies---Accused, in circumstances, were entitled to get benefit of doubt---Conviction and sentence awarded to accused by Trial Court were set aside and they were ordered to be released.

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

---S.302(b)/34---Motive---Motive was a double-edged weapon which cut both sides---Particular motive could persuade a person to commit an offence, but same motive could also be used by prosecution to falsely implicate an innocent person.

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

----S. 302(b)/34---Opinion of police---Opinion of Police Officer, no doubt, was not a proof of innocence or guilt of an accused, but factum of impact of such an opinion, could not be thrown away to winds altogether.

Muhammad Naeem alias Gogi and others v. The State 1990 PCr.LJ 1607 and Ashiq Ali v. The State 1996 MLD 1484 ref.

M.A. Zafar for Appellants.

Sardar Muhammad Latif Khan Khosa for the Complainant.

Kazim Iqbal Bhangoo for the State.

Date of hearing: 31st March, 2003.

2003 P Cr. L J 1194

[Lahore]

Before Maulvi Anwarul Haq, J

GHULAM HUSSAIN --- Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.298 and Criminal Revision No.111 of 2000, heard on 18th November, 2002.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Case as set up in the original report had been duly proved through complainant as also other eye­witness---Medico-legal Report was in complete accord with the ocular evidence---Delay in lodging F.I.R. had fully been explained---Delayed arrest of accused and consequent recovery of hatchet, would not matter at all as name and particulars of accused were very much present in first report and manner in which occurrence had taken place had also been stated---Prosecution evidence was consistent---Trial Court in circumstances had rightly concluded that offence as alleged, had been committed by accused and it had been so proved by prosecution---Motive of occurrence having remained shrouded in mystery, Trial Court had rightly awarded lesser punishment to accused.

Ch. Naseer Ahmad Tahir for Appellant.

Ajmal Kamal Mirza for the Complainant.

Imran Ahmad Khan for the State.

Date of hearing: 18th November, 2002.

2003 P Cr. L J 1198

[Lahore]

Before Ali Nawaz Chowhan and Rustam Ali Malik, JJ

MUSTAFA alias MOHSIN alias MUSI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal. No. 1901 of 2001, decided on 20th May, 2002.

Criminal Procedure Code (V of 1898)---

----S. 426---Suspension of sentence---Accused had prayed for suspension of his sentence contending that he was not nominated in the F.I.R. and that main accusations were made against co-accused and not against him and that recovery effected from accused was not relied upon by the Trial Court---Case against accused was one which called for further consideration---No likelihood of appeal to be heard in near future---Sentence was suspended accordingly, in circumstances.

Rai Muhammad Tufail Khan Kharal for Petitioner.

Syed Mukhtar Sherazi for the State.

2003 P Cr. L J 1200

[Lahore]

Before Maulvi Anwarul Haq and Tanvir Bashir Ansari, JJ

MUHAMMAD TUFAIL and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal Revision No. 167 of 2000, heard on 8th April, 2003.

Criminal Procedure Code (V of 1898)---

----S. 514---Penal Code (XLV of 1860), Ss.302/324/148/149---Forfeiture of surety bond---Accused for whom petitioners stood sureties, kept on appearing throughout the trial, but slipped away and absconded at the time when Court was about to announce final judgment in the case--­Petitioners/sureties were proceeded against in terms of S.514, Cr.P.C. and were burdened with a penalty by forfeiture of entire surety bonds--­Petitioners had filed bonds in the Court of Additional Sessions Judge undertaking that accused persons would appear in the said Court---Later on case against accused was transferred to Special Court and neither accused were ever called upon to file fresh bonds nor did petitioners file any bonds/undertaking that accused would keep on appearing in transferee/Special Court---Order forfeiting surety bonds and imposing penalty upon petitioners/sureties was set aside and petitioners were discharged of their liability under said surety bonds.

Muhammad Amanullah v. The State PLD 1992 Lah. 34-7; Khan Bahadur v. The State 1992 PCr.LJ 2238; Farman Ali v. The State 1999 PCr.LJ 2102 and Shafiq Ahmad and others v. The state 1982 PCr.LJ 623 ref.

Sardar Zaheer Ahmad Khan for Petitioners.

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

Date of hearing: 8th April, 2003.

2003 P Cr. L J 1240

[Lahore]

Before Muhammad Farrukh Mahmud, J

SHOUKAT ALI alias MADH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1036/B of 2002/BWP, decided November, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.392/411/109---Bail, grant of---Further inquiry---Police in three consistent investigations had come to the conclusion that the accused was not present at the scene of occurrence as alleged in the F.I.R. and had only abetted the offence---No recovery had been effected from the accused---No evidence was on record about alleged abetment of the accused---Opinion of the police though was not binding upon the Court, but same was always considered relevant for the purposes of grant or refusal of bail---Accused was not previous convict ---Co-accused who was shown to be present at the scene of occurrence, was found to be innocent during investigation---Allegation against the accused needing further probe within ambit of subsection (2) of S.497, Cr.P.C., he was admitted to bail.

Chaudhry Masood Ahmad Bajwa for petitioner.

Syed Niaz Ahmad Shah for the State.

Chaudhry Muhammad Ashraf Mohandra for the Complainant.

2003 P Cr. L J 1245

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD SHAHBAZ---Petitioner

Versus

MUHAMMAD NASEEM, RECOVERY OFFICER, SMALL BUSINESS FINANCE CORPORATION and others---Respondents

Criminal Miscellaneous No.761/H of 2002, decided on 24th May, 2002.

Criminal Procedure Code (V of 1898)---

----S. 491---People's Finance Corporation Act (XXIX of 1972), S.22--­Recovery ---Habeas corpus petition ---Detenu stood guarantor for loanee who obtained loan from the Bank and did not repay the same according to promise ---Detenu made payment of principal amount to the Bank, but he was again arrested for non-payment of interest on the principal amount---Guarantor had already paid the principal amount to the Bank but the Recovery Officer was pressurising the guarantor instead of putting pressure on loanee to make payment which had shown mala fides of the Recovery Officer---Authorities concerned were ordered by the High Court to release the detenu immediately with direction that he would not be arrested unless matter was resolved between loanee and Bank---Authorities, however, could take action against the guarantor if the matter was not settled between loanee and the Bank.

Dr. Ehsan-ul-Haq Khan for Petitioner.

Ahsan Rasool Chattah for Respondent.

2003 P Cr. L J 1248

[Lahore]

Before Muhammad Farrukh Mahmud, J

MAZHAR HUSSAIN ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.939/B of 2002/BWP, decided on 14th October, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11---Bail, grant of---Further inquiry---Complainant had alleged that accused and his wife had abducted complainant with intention to commit Zina with her---No allegation was on the record that accused had committed Zina with complainant and it was most unlikely that wife of accused would accompany her husband when her husband had a design to commit Zina with the complainant---Complainant remained in company of accused and his wife for three days---Allegation against accused, in circumstances, needed further probe and inquiry within ambit of subsection (2) of S.497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Ch. Muhammad Ashraf Mohandra for Petitioner.

Syed Niaz Ahmad Shah for the State.

Date of hearing: 14th October, 2002.

2003 P Cr. L J 1255

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD NAEEM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1153/B of 2002, decided on 28th November, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16---Bail, grant of---Matter was reported to the Police after the delay of eight days ---F.I.R. revealed that alleged abductees had developed intimacy with accused and his co-accused---Alleged abductees were not found in the custody of accused at the time of his arrest and were still at large---Offence under S.16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, did not attract prohibitory clause of S.497, Cr.P.C.---Bail could not be withheld as punishment and no one could be confined in jail for unlimited time---Accused was admitted to bail, in circumstances.

Ch. Muhammad Arshad Mohandra for Petitioner.

Iqbal Hussain Khakwani for the State.

Date of hearing: 28th November, 2002.

2003 P Cr. L J 1256

[Lahore]

Before Muhammad Akhtar Shabbir, J

ABDUL RAZZAQUE---Petitioner

Versus

THE STATE---Respondent

Criminal Appeal (ATC) No.2 of 2001/BWP, decided on 28th March, 2002.

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

----S. 10(3)---Penal Code (XLV of 1860), S.382---Abolition of the Punishment of Whipping Act (VII of 1996), S.3---Appreciation of evidence---Occurrence had been proved by statement of victim girl, which was supported by statements of eye-witnesses and also was corroborated by medical opinion, Chemical Examiner's report and recovery of blood-stained Shalwar of the victim---Identification parade of accused though had not been conducted, but holding of such parade was only a check against false implication of an accused, whereas the witnesses when heard the cries of victim girl, they reached the spot and had seen accused who on seeing them ran away---Both victim girl and the girl accompanying the victim girl, had recognized accused in the Court---Occurrence had not taken place at the night time in which identification parade was required---Prosecution having successfully proved its case against accused by producing ocular, recovery and medical evidence, no extenuating circumstances could be urged in favour of accused who could not prove his innocence even by producing defence witnesses---Prosecution evidence was weighty as against defence evidence and no material contradictions and discrepancies had been pointed out by the accused---Solitary statement of victim girl, supported by ocular/medical evidence was sufficient to maintain conviction of accused, whereas in the present case statement of victim was supported by very strong and convincing evidence alongwith ocular, Medical Expert's opinion and recovery of blood-stained Shalwar of victim---Trial Court, in circumstances, had rightly convicted accused, but accused having not been punished with Hadd, in view of S.3 of Abolition of Punishment of Whipping Act, 1996, sentence of 30 stripes awarded to accused by Trial Court, was set aside.

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

----Art. 22---Identification parade, holding of---Necessity--­Identification parade was to be held not as a rule of law, but as a rule of prudence to eliminate possibility of any mistake---Holding of such parade/test was not only a check against false implication, but was also a good piece of evidence against genuine culprits.

A.R. Tayyib for Appellant.

Mian Muhammad Bashir, A.A.-G. for the State.

Date of hearing: 28th March, 2002.

2003 P Cr. L J 1264

[Lahore]

Before Ali Nawaz Chowhan and Tanvir Bashir Ansari, JJ

Sain GUL WALI KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 36 and Murder Reference No. 126 of 1997, heard on 14th November, 2002.

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

----Ss. 302/457/382/34---Criminal Procedure Code (V of 1898), S.164--­Qanun-e-Shahadat (10 of 1984), Art.39---Appreciation of evidence--­Making of judicial confession by accused while in police custody--­Retraction---Trial Court's reliance on such confession for conviction--­Validity---Magistrates who had also appeared as prosecution witnesses had fulfilled the requirements of law substantially in recording the confessional statements of the accused persons---Accused had not brought on the record any such evidence whereby it could be inferred that the confessional statements were the result of any illegality, coercion or police highhandedness---Mere fact that accused persons remained in police custody before making the confession would not lead to the conclusion that the confession was tutored and the result of coercion or police torture---Trial Court, in circumstances, had correctly placed reliance upon the confessional statements and convicted the accused.

Syed Sharifuddin Pirzada v. Sohbat Khan PLD 1972 SC 363 fol.

Sayed Ali Shah alias Shahji v. The State 1993 PCr.LJ 1118; Bijar and 4 others v. State 1994 PCr.LJ 144; Munir Ahmad and others v. The State 1988 PCr.LJ 116.; Asfandyar Wali v. The State PLD 1978 Pesh. 38; State v. Sohail Sardar 1997 SCMR 1180; Muhammad Israr and another v. The State 2002 PCr.LJ 1072; Syed Sharifuddin Pirzada v. Sohbat Khan and 3 others PLD 1972 SC 363; Muhammad Gul and others v. The State 1991 SCMR 942; Muhammad Din Meher Din v. Emperor AIR 1938 Lah. 2002; Joygun Bibi v. The State PLD 1960 SC (Pak.) 313 and Muhammad Rafique v. The State 1977, SCMR 457 ref.

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

----S. 164---Penal Code (XLV of 1860), Ss. 302/457/382/34---Judicial confession---Retraction---Effect---If voluntariness and truth of confession is established from the record, retraction even if made, shall not affect the said judicial confession and retraction would be wholly immaterial---Where the accused person had done nothing to retract lawfully from their confessional statements and did not move for retraction till such time that their statement under S. 342, Cr.P.C. was recorded, such a delayed denial of the confession would not amount to a retracted confession.

Yoygun Bibi v. The State PLD 1960 313 rel.

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

----Art. 43---Penal Code (XLV of 1860), Ss.302/457/382/34---Criminal Procedure Code (V of 1898), S. 103---Judicial confession---Evidentiary value of such confession made by accused individually and its effect on co-accused in the case---Sufficient material was available on the record to corroborate the confession---Recoveries had been effected from the accused persons---Mere fact that the recoveries were not attested by witnesses from the public would not be sufficient by itself to discredit the recoveries made by the police officials---Judicial confession of each of the accused shall have the effect of implicating and corroborating the charge as against the co-accused to the extent confessed.

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

----Ss. 302/457/460/382/34---Appreciation of evidence---Conviction of the accused, persons was based on confessional statements of the co-­accused---Accused was not specifically implicated in any of the judicial confessions made by the co-accused---Actual participation of the accused in murder was though not proved but he was fully implicated in common criminal conspiracy' alongwith other accused to commit the offence--­Accused was proved to have acted in furtherance of the common intention of the other co-accused and had actively planned the same alongwith them---Accused was also guilty under S. 460, P.P.C. for committing lurking house trespass and house-breaking by night whereby the murder was committed---Death sentence of the accused was converted to life imprisonment by the High Court in circumstances.

Malik Rab Nawaz Noon and Syeda B.H. Shah for Appellant.

Sardar Muhammad Ishaq for the Complainant.

Raja Muhammad Ayub Kiani for the State.

Date of hearing: 14th November, 2002.

2003 P Cr. L J 1293

[Lahore]

Before Muhammad Akhtar Shabbir, J

Chaudhry MASEETAY KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No. 102 of 1998/BWP, decided on 10th April, 2002.

Criminal Procedure Code (V of 1898)---

----S. 514---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.11/16---Forfeiture of surety bond---Accused on the relevant date of hearing having absented himself from the Court, his bail was cancelled and warrant of arrest of the accused and show-cause notice against surety of the accused were issued---Surety having not been served, Court passed order forfeiting his surety bonds---Nothing was on record to show that show-cause notice issued to the surety was served upon him---Court without hearing the objections of the surety and affording him an opportunity of hearing, imposed upon him penalty of forfeiting his bail bonds---Record showed that order forfeiting surety bonds was passed against surety in his absence by the Court without satisfying that surety had been served---Statement of the process-server had not been recorded to the effect that the surety was served in a proper manner---Order passed against surety in violation of principle of natural justice, was not sustainable in law---Trial Court's order forfeiting bail bond of the surety was set aside and case was remanded for its decision afresh after affording surety an opportunity of being heard.

Syed Jamil Anwar Shah for Petitioner.

2003 P Cr. L J 1298

[Lahore]

Before Bashir A. Mujahid and M.A. Shahid Siddiqui, JJ

ABDUL RAHMAN and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.795 and Murder Reference No.335-T of 1999 decided on 20th February, 2002.

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

----Ss. 10(3)(4) & 6(c)---Anti-Terrorism Act (XXVII of 1997), S.7--­Appreciation of evidence---Victim girl was aged 15/16 years and was unmarried---Commission of Zina with the victim had been proved by he ­statement corroborated by report of Chemical Examiner and there was no reason for false implication of the accused---Statement of victim was corroborated by medical evidence wherein swabs were found stained with semen and the accused had not givers any plausible reason for their false implication---Solitary statement of the victim which was confidence-inspiring was sufficient to record conviction of the accused--­Prosecution had proved its case against the accused beyond any shadow of doubt---No marks of violence were found on the victim when she was medically examined; she arrived at her house on her own and the matter was not reported to the police for her abduction by her father---Semen of the accused were not sent to Serologist for grouping/comparison--­Possibility, in circumstance, could not be ruled out that alleged victim was a consenting party with one of the accused and was tutored before the registration of the case---Conviction of the accused under S.10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was not legal and proper and same was altered to under S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and the accused were sentenced to 10 years' R.I. each accordingly.

Mian Muhammad Bashir for Appellants.

S.D. Qureshi for the State.

Date of hearing: 20th February, 2002.

2003 P Cr. L J 1306

[Lahore]

Before Rustam Ali Malik, J

NASIR BAIG---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2673-B of 2002, decided on 3rd May, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, grant of--­Mother of deceased who had made statement in the Court that she had compounded the offence and had forgiven accused and also had waived the right of Qisas and Diyat, was not only legal heir of the deceased, but deceased had also left behind a widow and his children---Complainant who was brother of accused, though had filed an affidavit in favour of accused and prosecution witness who had also filed an affidavit to the effect that he had not witnessed the occurrence, but there were other eye­witnesses also in the field---Deceased was real brother of accused and situation in which mother of deceased had filed an affidavit in favour of accused, was quite understandable---Complainant was also the brother of deceased as well as of accused---Accused was alleged to have fired the fatal shot at deceased---No justification for grant of bail to accused, existed, bail application was dismissed.

Ch. Shazib Saeed for Petitioner.

Malik Shahid Riaz for the State.

N.A. Butt for the Complainant.

2003 P Cr. L J 1318

[Lahore]

Before Muhammad Akhtar Shabbir, J

Syed ABID SHAH---Petitioner

Versus

ZAFAR IQBAL and others---Respondents

Criminal Miscellaneous No.56/CB of 2002/BWP, decided on 18th March, 2002.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.324/327/341/148/149--­Bail cancellation of---Accused persons who formed an unlawful assembly in furtherance of their common intention, had been named in the F.I.R---Police after investigation had declared the accused as guilty---Medico Legal Report revealed that the complainant had sustained four fractures on his legs and he was operated twice and his right leg had been grafted---Doctor had reported that left ankle of the complainant was still fixed and complainant was unable to move---Offence under S.324, P.P.C. which was proved against the accused was covered within prohibitory clause of S.497. Cr.P.C., but Trial Court while granting bail to the accused, had omitted to mention offence under S.324. P.P.C. without any reason---Two injuries on person of the complainant were on vital parts of his body---Accused by giving 20 injuries on the person of the complainant had made the complainant incapacitated/invalidated--­Accused who were involved in a heinous offence under S.324, P.P.C: which fell within prohibitory clause of S.497, Cr.P.C., were not entitled to any concession of bail---Accused were vicariously liable for the commission of offence punishable with 10 years' imprisonment by forming an unlawful assembly---Trial Court While granting bail to the accused having not applied its mind to said aspects of the case, order granting bail to the accused passed by the Trial Court, was not sustainable in law---Order allowing bail to the accused was recalled and post-arrest bail granted to the accused, was cancelled.

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

----Art. 204---Contempt of Court---During proceedings of cancellation of bail, certain unknown persons entered in the Court-room and started beating the accused whose bail was cancelled by the Court and injured the accused---Said persons created rowdyism and hooliganism in the face of the Court and disturbed the Court proceedings; they were directed to be taken into custody and prosecuted under Art. 204 of the Constitution---Deputy Registrar of the Court was directed to register a separate criminal original petition against the said persons.

Syed Jamil Anwar Shah for Petitioner.

Syed Muhammad Tariq Shah for Respondents Nos. 1 to 4.

Mirza Nadeem Asif for the State.

2003 P Cr. L J 1331

[Lahore]

Before Muhammad Farrukh Mahmud and Syed Sakhi Hussain Bukhari, JJ

MUHAMMAD YASIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.67 and Murder Reference No. 25 of 1991, decided on 25th November, 2062.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Reduction in sentence---Accused who allegedly had committed double murder, was convicted by the Trial Court on two counts and was sentenced to death on two counts---On filing appeal by the accused against judgment of the Trial Court, conviction of the accused was upheld by the High Court, but death sentences awarded to the accused were converted into life imprisonment in each case---Accused filed appeal before Supreme Court against judgment of High Court and Supreme Court after about 9 years accepted appeal, remanded case for proceeding afresh and to decide murder reference afresh---Accused had not challenged judgment of High Court on merits, but had prayed that in awarding sentence the Court should take into consideration the expectancy of life ensured to him on account of conviction previously recorded by High Court whereby only imprisonment for life was awarded to him---Accused who had undergone a substantial part of his punishment, with the decision of Supreme Court, practically for a period of 9 years had entertained expectancy of life and freedom from being sent to gallows following award of lesser punishment and that fact would be mitigating circumstance for not awarding him death sentence---Ends of justice thus would be sufficiently met if conviction and sentence originally awarded by High Court in its earlier judgment, were restored---Death sentence awarded to the accused was converted into life imprisonment upholding his conviction under S.302, P.P.C. in view of fact that prosecution case had fully been proved by evidence on record.

Abdul Ghaffar Bhuttoa for Appellant.

Mian Muhammad Bashir, A.A.-G. for the State.

Mian Muhammad Tayyab Wattoo for the Complainant.

Date of hearing: 20th November, 2002.

2003 P Cr. L J 1335

[Lahore]

Before Bashir A. Mujahid and M.A. Shahid Siddiqui, JJ

MUHAMMAD HUSSAIN and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No-1115 and Murder Reference No.448/T of 1998, decided on 21st February, 2002.

Penal Code (XLV of 1860)---

----Ss. 302/324/34---Explosive Substances Act (VI of 1908), Ss.3/4--­Appreciation of evidence---Accused was nominated in promptly recorded F.I.R.---Motive alleged against the accused was proved---Complainant had no previous enmity against the accused for his false implication or substitution by letting off the real culprit---Prosecution case against the accused was established by the statement of the complainant corroborated by prosecution witnesses who were also injured in the same occurrence and their presence at the spot could not be doubted---Prosecution case had further been corroborated against the accused by his abscondence and ocular account had further been corroborated by medical evidence--­Accused was undoubtedly the real culprit for commission of heinous offence wherein one person was murdered and four innocent persons received injuries---Conviction to the extent of the accused was maintained and' sentence awarded to him by the Trial Court was confirmed---Co-accused neither was nominated in the F.I.R. nor his description or features were given in the F.I.R. and he was implicated through an application moved by the complainant subsequently and such supplementary statement had no evidentiary value---Statements of eye­witnesses against the co-accused were also discrepant---Prosecution witnesses had failed to identify the co-accused by his role during identification parade and they merely picked him out as accused in the occurrence---Prosecution case, in circumstances had not been proved against co-accused beyond doubt---Benefit of doubt, in circumstances, was extended to the co-accused and conviction and sentence awarded to him by the Trial Court, were set aside and he was directed to be released forthwith.

1995 SCMR 1350 fol.

A.H. Masood for Appellants (at State expenses).

Mian Abdul Qayum Anjum for the State.

Date of hearing: 21st February, 2002.

2003 P Cr. L J 1346

[Lahore]

Before Bashir A. Mujahid and Mian Muhammad Jehangir, JJ

MUHAMMAD USMAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.104-T and Murder Reference No.26/T of 2002, decided on 17th April, 2002.

Penal Code (XLV of 1860)---

----Ss. 302/353---Anti-Terrorism Act (XXVII of 1997), S.7--­Appreciation of evidence---Occurrence had taken place in the dark night and the prosecution had failed to prove availability of electric bulb at the spot---Complainant and prosecution witness had admitted that the deceased who was a police officer, was not in police uniform at the place of occurrence and Investigating Officer had failed to show that deceased had gone to perform his official duty at the relevant time---Prosecution witness having admitted that on relevant time it was raining, it was not possible to take into possession the blood through cotton from the spot--­Occurrence had taken place in open public place but none of the public witness was cited or examined by the prosecution which had created serious doubt about the occurrence that it had not taken place as had been alleged by the prosecution---No features/particulars of the accused were given by the complainant or prosecution witness, except the body structure of the accused---Accused were not identified by the role allegedly played by them---Accused were already arrested in some other case and both the eye-witnesses being the police employees, possibility could not be ruled out that they had seen the accused before identification parade---Identification parade, in circumstances, could not be relied upon to maintain the conviction of the accused---Pistol was recovered from a house of the accused of which key was already with Investigating Officer and the house was also opened by Investigating Officer and no public witness from the locality was associated in the recovery proceedings---Provisions of S.103, Cr.P.C. having been violated in recovery proceedings, recovery of pistol could not be relied upon---Prosecution having failed to establish its case against the accused beyond any shadow of doubt, the accused were acquitted extending them benefit of doubt.

Ghulam Rasool v. State 1988 SCMR 557; Yaqub Khan v. State PLD 1996 SC 97; Mehmood Ahmad and others v. The State 1995 SCMR 127; 1995 SCMR 127 and Khadim Hussain v. State 1985 SCMR 721 ref.

Ibad-ur-Rehman Lodhi for Appellant.

Sajid Hamdani for the: State.

Date of hearing: 17th April, 2002.

2003 P Cr. L J 1364

[Lahore]

Before Tanvir Bashir Ansari, J

QADIR BAKHSH alias QADIRA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.241-B of 2002/BWP, decided on 5th April, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, grant of--­Accused had been named in the F.I.R. and a specific roll had been attributed to him---Father of the accused who had fired the Fatal shot at the deceased being fugitive from law, apprehensions of abscondence of tae accused, could not be ruled out---Complete challan had been submitted in the Court, the charge had since been framed against the accused and the trial was in progress---Accused, in circumstances, was not entitled to concession of bail.

Syed M. Tariq Shah for Petitioner.

Syed M. Jamil Anwar Shah for the Complainant

Ghazanfar Ali Khan for the State.

2003 P Cr. L J 1372

[Lahore]

Before Iftikhar Hussain Chaudhry, C.J.

and Pervaiz Ahmad, J

ABDUR RAZZAQ alias NANNA and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1203 of 1998, Murder Reference No.54 and Criminal Revision No. 171 of 1999, heard on 31st March, 2003.

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

----S: 302(b)/34---Appreciation of evidence---One of the accused persons claimed that he was aged 18 years when his statement under S.3-42, Cr.P.C. was recorded but could not lead evidence in proof of his claim despite `Court had never declined his- request to lead. evidence--­Contention of accused that he wanted to lead evidence in his defence but he was not afforded any opportunity to make further statement or to lead evidence, was rejected being totally untenable---Both eye-witnesses had clearly testified that occurrence had taken place at a hotel which deceased had obtained on rent---Place of occurrence had been proved to be that very hotel which was being run by deceased and his brothers---Defence plea to the contrary that occurrence had taken place at other hotel, did not have support of any material on record---Motive of occurrence was stated to be the demand for return of loan on which accused became furious and hot words were exchanged between them and due to that grievance accused had caused death to deceased---Even if said aspect of the matter was not proved, it 'could be inferred that incident had taken place due to some other reasons,. but that itself would not lessen the gravity of the offence of accused---Absence of motive per se would not affect prosecution case in any manner.---No direct enmity of a degree existed between the accused and the complainant which could have prompted the complainant to involve. accused in the case---Accused, in circumstances, were not falsely involved in the case as was claimed by them---Involvement of accused in the case had fully been established--­Place where incident took place was a Bazar and incident would have/ been seen by a large number of persons; in such a situation false involvement of accused virtually was impossible---Evidence of recovery had further corroborated prosecution case against accused---Report of Forensic Science Laboratory in respect of gun recovered from accused had shown that same was used in occurrence---Contention that accused was minor at time of commission of offence, was fully belied by Birth Certificate---Case against accused having fully been proved, he was rightly convicted and sentenced by Trial Court ---Co-accused was assigned role that he had come to the spot alongwith his brother/accused and except that he did nothing ---Co-accused was acquitted of charge extending him benefit of doubt---Appeal to the extent of co-accused was allowed while appeal of accused was rejected and his sentence of death was affirmed.

Kh. Sultan Ahmad, Sher Afgan Asadi and Malik Rabnawaz Khan Niazi for Appellants.

M. Asghar Khan Rokhri for the Complainant.

Ch. Muhammad Ayyub for the State.

Date of hearing: 31st March, 2003.

2003 P Cr. L J 1384

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD IBRAHIM ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1825 of 2001 and Criminal Revision No.94 of 2002, heard on 14th April, 2003.

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

----S. 302(b)---Appreciation of evidence---Accused and his five co­ accused were nominated in the F.I.R.---One person was murdered and another was injured in the occurrence---Two of co-accused were acquitted by Trial Court, two were awarded 3 and 2 years' R.I. while. fifth co­accused was at large and accused who had been convicted and sentenced to undergo life imprisonment was behind the bars since his arrest---Only one injury attributed to the accused was on left leg of deceased according to medical report---Case, of prosecution was that one of acquitted co­accused who was armed with fire-arm, fired in the air and also gave injuries to deceased with butt of his gun on his left leg---Only one 'injury was on leg of deceased---Said co-accused was acquitted by Trial Court only on the ground that police had found him innocent---Role of accused was on similar footing as that of said acquitted co-accused---Case of accused was on better footing than that of said acquitted co-accused who was attributed a butt injury---Doctor who, had conducted Medico-legal Report and post-mortem examination on dead body of deceased; had never stated in whole of his statement that said injury proved fatal, but according to opinion of Doctor, cause of death was blunt tromma in abdomen and its complications---Injury which was alleged to have been caused by accused on left leg of the deceased, had nothing to do with abdomen of the deceased---Case against accused being doubtful one, benefit of doubt was granted to accused and he was acquitted , of the charge against him.

Ch. Din Muhammad Meo for Appellant.

Muhammad Waseem for the State.

Date of hearing: 14th April, 2003.

2003 P Cr. L J 1390

[Lahore]

Before Ch. Iftikhar Hussain, J

RASHID ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3314/B of 2002, decided on 7th May, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/109/34---Bail, grant of---Further inquiry---Only role of ineffective firing was attributed to accused and question of his vicarious liability for murder of deceased was to be seen- at the time of trial---Case against accused, in circumstances, was covered under, subsection (2) of S.497, Cr.P.C. calling for further inquiry into his guilt---Accused was behind the bars for the last about two years and his trial had not even commenced---Case for enlargement of accused on bail having been made out, he was admitted to bail.

Mian Qamar-ud-Din Safeer for Petitioner.

Tanveer Haider Buzdar for the State.

2003 P Cr. L J 1396

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Rustam Ali Malik, JJ

MUHAMMAD RAFIQUE --- Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.754 and Murder Reference No.254 of 1998, heard on 21st April, 2003.

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

----Ss. 302/148/149-- Appreciation of evidence---Both the deceased who were real brother and sister, were done to death during day light hours--­Complainant and other eye-witness were residents of the same area and had their houses. near place of occurrence---Presence of said two witnesses at the spot at the relevant time of occurrence, was natural and plausible---Said witnesses were related inter se as well as to deceased, but nothing was on record to show that they had any previous enmity with accused to falsely implicate him in the case---Matter was promptly reported to police and day, .time and kind of weapon used during occurrence were admitted facts---Ocular account narrated by prosecution witnesses found support from medical evidence---Nature and as narrated by eye-witnesses, stood affirmed by medical evidence---Medical evidence in that regard had supported ocular evidence---Contradiction in two stands taken by accused before Trial Court to prove his plea of self-defence, were sufficient to doubt credibility of plea of self-defence of accused---Occurrence had taken place in Thickly populated area, but accused neither had produced any defence witnesses nor had made any statement under S.340(2),Cr.P.C.--­Statements of both eye-witnesses inspired confidence and rang true which could be relied upon safely to uphold conviction and sentence of accused---Appeal of accused against his conviction and sentence, was dismissed, in circumstances ---Co-accused in case were rightly acquitted by Trial Court as four of accused persons did not cause any injury to deceased and during investigation nothing was recovered from them--­ Ample evidence was on record to show that remaining co-accused was not present at the spot at the time of occurrence and even statements of two defence witnesses had sufficiently established the plea of alibi of said co-accused---Reasons given by Trial Court while acquitting co-accused being neither perverse nor fanciful, same could not be interfered with by High Court in its appellate jurisdiction---Appeal against acquittal of co­ accused, also stood dismissed.

(b) Criminal trial---

---- Site plan---Site plan was only a supporting document and was not of any substantial value---Same could not be given preference over evidence of truthful and natural witnesses.

Sardar Khan and others v.. The State 1998 SCMR 1823 ref.

Mian Abdul Qadoos or Appellant.

Ch. Muhammad Anwar Bhore for the Complainant.

Mian Abdul Qayyum Anjum for the State.

Date of hearing: 21st April 2003.

2003 P Cr. L J 1409

[Lahore]

Before Ali Nawaz Chowhan and Mian Muhammad Jahangier, JJ

RAFTAR MAHMOOD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.322 and Murder Reference No. 135 of 1999, heard on 16th April, 2003.

Penal Code (XLV of 1860)---

----Ss. 302(c)/34---Appreciation of evidence---Prosecution version to the extent of dragging and causing injury by hatchet on person of deceased by accused, was negated by medical evidence as no marks of dragging and injury allegedly caused by hatchet was found on the head of the deceased---Presence of accused persons having not been shown in the site plan, presumption was that accused persons were not present at the spot---Contention on the basis of site plan and other evidence brought on record was that the place of occurrence did not fall on the way which was being used by complainant side ---Explanation ought to have been offered about presence of accused in the house of deceased, but upon failure of prosecution to explain that essential fact, plea of defence and version advanced by defence would have to be taken into consideration for coming to a right conclusion---Version of accused was that the deceased at the relevant time was attempting and taking away his sister-­in-law, inside the room of the house for outraging her modesty and when accused saw that, he was provoked and fired at the deceased with licensed rifle of his brother because of `Ghairat' (family honour) ---Sister-­in-law of accused had corroborated the version of accused---Motive part of story and facts narrated showing as follow the occurrence took place, were not persuasive at all, whereas possibility existed that defence version, even if it was exaggerated or twisted and had some facts which were suppressed, would speak of a probability and failure of prosecution to establish its own case---Deceased being unarmed and firing at him was an over-doing even if question of Ghairat was involved---Provision of S.302(c); P.P.C. being attracted in the case, accused was convicted accordingly and death sentence awarded to accused, was reduced to 10 years' R.I.---Co-accused were rightly acquitted as they had been proved to have been falsely implicated.

Sh Naveed Shehryar alongwith Mrs. Khalida Perveen for Appellant.

Masood Sadiq Mirza for the State.

Date of hearing: 16th April, 2003.

2003 PCr. LJ 1420

[Lahore]

Before Ali Nawaz Chowhan and Mian Muhammad Jahangier, JJ

FAIZ AHMAD and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.773 and Murder Reference No.386 of 1999, heard on 14th April, 2003.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Appreciation of evidence ---F.I.R. was promptly lodged and time, date and place of occurrence was admitted---Complainant who was father of the deceased girl, though had died before recording his statement at trial but no impact of his death was made on the case because Investigating Officer had stated that F.I. R. was recorded according to the true deposition made by complainant and that it was read over to complainant who thumb-marked the same in token of its correctness ---F.I.R., in circumstances, was brought on record by prosecution in a lawful way which introduced the motive behind the occurrence and ocular account furnished .by father of deceased lady and also discussed therein that two residents of village had witnessed the occurrence---Eye-witnesses who had furnished ocular account were residents of the same village and in no way it could be urged that said witnesses were chance witnesses because it was daily life of villagers to be present here and there in the fields---Prosecution witnesses furnished ocular account in line with contents of F.I. R. , but injury attributed to co­ accused had found no mention any where and that injuries attributed to accused found mention in statement of Medical Officer---Ocular account furnished by two prosecution witnesses found corroboration from medical evidence to the extent of accused only---Even otherwise two empties were recovered from the spot which indicated that only two fire shots were made by the accused---Recovery of crime weapon was effected from accused whereas no weapon was recovered from the co-accused---When injury attributed to co-accused did not exist in medical evidence, benefit of doubt should have been given to co-accused and merely because of motive or abscondence alleged against co-accused, he could not be convicted and sentenced in the case---Defence could not prove that deceased lady was of bad character---Defence version to the extent of accused seemed to be afterthought and worth no reliance---Conviction and sentence awarded to accused by Trial Court was upheld in appeal, whereas accepting appeal of co-accused, he was acquitted extending him benefit of doubt---Murder reference in case of the accused was answered in affirmative.

Sardar Muhammad Latif Khan Khosa for Appellant

Mushtaq Ahmad Mohal for the State

Date of hearing: 14th April, 2003.

2003 P Cr. L J 1431

[Lahore]

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

MUHAMMAD RAFIQUE and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.228 and Murder Reference No.312 of 1999, heard on 24th April, 2003.

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

----S. 302(b)/34---Appreciation of evidence---Reduction in sentence---Case of prosecution against accused was supported by complainant and prosecution witness who had made consistent statements before Trial Court qua culpability of accused and their statements had received ample corroboration from the motive and had also received sufficient support from medical evidence---Accused, in circumstances, was quite justified in not challenging his conviction as he was rightly convicted by Trial Court---Accused had prayed only for reduction of sentence awarded to him by Trial Court---Parties were immediate neighbours of each other and prior to the present occurrence, there was absolutely no background. of ill-will or bitterness between the parties and they had enjoyed good and cordial neighbourly relations with each other---Even according to F.I.R. itself occurrence had erupted all of a sudden without any premeditation on part of accused---Case was not of a cold-blooded murder after premeditation and planning---High Court, in circumstances, exercising its discretion, reduced sentence of death awarded to accused by Trial Court to one of imprisonment for life.

Muhammad Yar Khan Daha fog Appellants.

Muhammad Sohail Dar, Assistant Advocate-General with Mrs. Erum Sajjad Gul for the State.

Date of hearing: 24th April, 2003.

2003 P Cr. L J 1439

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD ISHAQ---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 1 of 2003 in Criminal Appeal No.97 of 2001, decided on 14th April, 2003.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S.302(b)---Juvenile Justice System Ordinance (XXII of 2000), S.4(4)—Application for suspension of sentence---Contention of petitioner/accused was that he was about 17-1/2 years old at the time of occurrence and that fact had been mentioned by Trial Court in its judgment; that according to S.4(4) of Juvenile Justice System Ordinance, 2000 all cases pending before Trial Court in which a child was accused of an offence, would stand transferred to Juvenile Court of competent jurisdiction; that he being child, his case should have been transferred to Juvenile Court and tried there, but it had not been done so---Application by accused was accepted and his sentence was suspended and pending disposal of his appeal he was admitted to bail.

Mehr Muhammad Saleem Akhtar for Petitioner.

Saleem Shakoor for the State.

2003 P Cr. L J 1442

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD ZULFIQAR---Petitioner

Versus

MUHAMMAD ASLAM and 7 others---Respondents

Criminal Revision No.22 of 2002, heard 2nd April, 2003.

(a) Criminal trial---

---- Opinion of police---Evidentiary value---Opinion of police was not binding on Courts having no evidentiary value and could not be made basis for dismissal of private complaint.

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

----Ss. 302/324/337-A(ii)/148/149---Criminal Procedure Code (V of 1898), Ss.200 & 202---Private complaint---Cross-version---F.I.R. was registered under Ss.302/324/337-A(ii)/148/149, P.P.C. with allegations of committing Qatl-i-Amd of deceased and causing injuries to others--­Accused party having also received injuries in the same occurrence, a cross-version was recorded during investigation of the case against accused party---Investigation remained pending for more than about 2/3 years and finally cross-version of accused party having been declared incorrect, challan was submitted against them and charge was framed--­Accused also filed a private' complaint for same incident wherein statement of accused was recorded as complainant and matter was referred to the Magistrate for inquiry under S.202, Cr.P.C.---Private complaint for cross-version filed by accused, having been dismissed, accused filed revision petition against dismissal order---Cross-version and private complaint filed by accused were rejected by Trial Court without taking into consideration injuries received by accused party in the same occurrence---Delay in lodging private complaint could not be held fatal in facts and circumstances of the case as cross-version was recorded just 26 days after occurrence while injured witnesses were examined on the day of occurrence---Trial Court had exceeded its jurisdiction while deeply discussing merits of case which could also affect case of accused and his co-accused who were facing trial in murder case---Only tentative assessment of evidence had to be made at the time of summoning of accused in a private complaint and if prima facie case was made out, accused could be summoned---Evidence produced in private complaint showed that a prima facie case .had been made out against complainant party necessitating issuance of process against them to face trial---Order dismissing private complaint filed by accused, was set aside and private complaint was remanded to Trial Court for its disposal in accordance with law after issuing process to the other party to face trial.

Azmat Ali Tagga for Petitioner.

Abdul Aziz Niazi for Respondents.

Muhammad Qasim Khan, A.A.-G.

Date of hearing: 2nd April, 2003.

2003 P Cr. L J 1448

[Lahore]

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

HIDAYAT ULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.544 and Murder Reference No.205 of 1999, heard on 28th April. 2003.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Matter was reported to police promptly---The only accused had fired a shot on the person of deceased which hit on vital part of his body which proved fatal---Ocular account furnished by prosecution witnesses was fully corroborated by medical evidence---Time of occurrence as given by complainant and eye­witnesses, fitted in with prosecution story---Occurrence had taken place in broad-daylight---Both eye-witnesses had no enmity whatsoever to depose falsely against accused---No immediate cause of murder was known in the case---Ocular account having been corroborated by medical evidence, Trial Court had rightly convicted the accused---Evidence on record had fully proved that accused was legs than 18 years of age at the time of occurrence---Maintaining conviction of accused, death sentence awarded to him by Trial Court was converted to imprisonment for life with benefit of S.382-B, Cr.P.C.

Ch. Ghulam Hussain for Appellant.

Abdul Qayyum Anjum for the State.

Date of hearing: 28th April, 2003.

2003 P Cr. L J 1458

[Lahore]

Before Khawaja Muhammad Sharif, J

IJAZ AHMAD---Petitioner

Versus

MUHAMMAD AZAM---Respondent

Criminal Miscellaneous No.60/Q of 2003, decided on 22nd April, 2003.

Criminal Procedure Code (V of 1898)---

----Ss. 196 & 561-A---Penal Code (XLV of 1860), Ss.295-A & 295-C--­Quashing of proceedings---Contention of complainant was that in fact the complaint was filed under S.295-C, P.P.C. against accused and his co-accused, but the Magistrate after inquiry had submitted a report that case under S.295-A, P.P.C. was made out, which conclusion was incorrect and that case made out against him and his co-accused under S.295-A, P.P.C. was not cognizable by the Court---Validity---No Court under provisions of S.196, Cr.P.C. could take cognizance of any offence punishable under Chap. VI, P.P.C. (Offences against the State) and specially under S.295-A, P.P.C. wherein the accused had been summoned by Trial Court---Proceedings before Trial Court were quashed, in circumstances.

1993 SCMR 1718 ref.

Muhammad Shan Gul for petitioner.

Muhammad Ismaeel Qureshy for Respondent No. 1.

Muhammad Hanif Khatana, Additional Advocate-General.

Date of hearing: 22nd April, 2003.

2003 P Cr. L J 1462

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

FAZL-E-HAQ---Appellant

Versus

THE STATE --- Respondent

Criminal Appeal No.309 of 2001, heard on 2nd May, 2003.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 302(c)---Appreciation of evidence---Time, place of occurrence and weapon used for the murder of deceased were admitted facts---Only question to be resolved was whether the deceased was done to death under circumstances as narrated by the prosecution witnesses or the defence plea of grave and sudden provocation put forth by the accused under S.342, Cr.P.C., was to be relied upon ---Purpose of visit of complainant and deceased in the house of accused was to settle dispute between father-in-law of accused and another co-villager over some piece of agricultural land about which deceased was interested to effect reconciliation between them---Father-in-law of accused was residing in the house situated opposite to the place of occurrence---Father-in-law of accused statedly was also present in the house of accused, but site plans prepared by Investigating Officer and Draftsman, were silent about the presence of father-in-law of accused in the house of accused---Even otherwise when dispute was between father-in-law of accused and other villagers, natural conduct on part of complainant and deceased would have been to visit the house of father-in-law of accused which was situated just opposite to the house of accused where occurrence had taken place---Nothing was on record to suggest as to why deceased and complainant opted to visit the house of accused for reconciliation instead of visiting house of father-in-law of the accused---Father-in-law of accused and other co-villagers were never asked to join investigation and no independent evidence was on record to show that any dispute existed between them---Presence of complainant/eye-witness at the relevant time seemed to be doubtful, in circumstances---Prosecution claimed that while passing by the house of accused the witness heard the commotion and saw the occurrence, but stand of prosecution before police was that said witness reached at the spot after hearing the fire reports---House of said witness was about three acres from the place of occurrence, but he could not prove his presence at the spot satisfactorily---Other prosecution witness was never produced by prosecution and was given up as unnecessary; it was difficult, in circumstances, to rely upon evidence of every witness of the prosecution---Defence plea of grave and sudden provocation raised by accused, was to be relied upon in totality which was also supported by police official who appeared as prosecution witness---Conviction of accused under S.302(b), P.P.C. was not sustainable, same was set aside and accused stood convicted under S.302(c), P.P.C. and was sentenced to 10 years' R.I.

Inayat Ullah Khan Niazi for Appellant.

Tariq Lateef for Complainant.

Mustafa Kamal Khosa for the State.

Date of hearing: 2nd May, 2003.

2003 P Cr. L J 1473

[Lahore]

Before Khawaja Muhammad Sharif, J

YAQOOB SHAHZAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 170/J of 2002, decided on 6th May, 2003.

Penal Code (XLV of 1860)---

----S. 302(b)(c)---Appreciation of evidence---Allegation against accused was that he fired at deceased when his father came in the way and stopped accused not to fire and received injury and thereafter accused fired another shot which hit the deceased---Case was of two versions; one had come from the mouth of two prosecution witnesses who were real brothers and material nephews of deceased respectively, while other version had been introduced by accused in his statement under S.342, Cr.P.C.---Version put forward by accused was more plausible and convincing for the reason that occurrence had taken place just in front of house of accused and moreover father of accused was also killed in the occurrence---As to why accused who wanted to kill another person would also fire at his real father was not understandable---Medico-Legal Report had shown that name of person who had taken injured to the hospital, did not find mention in the relevant column of `name of relative or friend'--­Accused had stated that he himself appeared before police on the day of occurrence, but his arrest was shown on the next day---First version of accused was the same which he submitted before Trial Court in his statement .under S.342, Cr.P.C. and said version was of great importance---Record showed that complainant party was dealing in narcotics---Case being full of doubts, benefit of doubt was granted to accused and conviction and sentence recorded against him by Trial Court were set aside and he was acquitted of charge.

Mirza Abdullah Baig for Appellant.

Ashfaq Ahmad Chaudhry for the State.

Date of hearing: 6th May, 2003.

2003 P Cr. L J 1479

[Lahore]

Before Bashir A. Mujahid, J

MUHAMMAD AZAM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.229 of 2001, decided on 9th May, 2003.

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

----S. 302(b)---Appreciation of evidence ---F.I.R. in which accused was nominated was promptly lodged and no delay was made in initiation of investigation---Both prosecution witnesses had sufficiently explained their presence at the place of occurrence and they could not be termed as chance witnesses---Mere relationship of said prosecution witnesses with the deceased was no ground to discard their testimony as they could be interested, but were not inimical towards accused for his false implication or substitution by letting off the real culprit---Such witnesses were consistent in their statements and contradiction as pointed out by the accused was immaterial---Both prosecution witnesses stated that accused made indiscriminate firing hitting the deceased and that fact had been corroborated by medical- evidence as well as by the inquest report--­Empties and teaspoonful blood-stained earth were taken into possession from place where alleged occurrence took place which had established the place of occurrence as alleged by prosecution and had not .been contradicted from defence side---Case was of single accused---Both prosecution witnesses proved to be truthful and confidence-inspiring witnesses and no reason existed to discard their testimony---Occurrence being daylight, identity of accused was neither disputed nor there was any reason for substitution---Weakness or absence of motive was not fatal to prosecution case---Both eye-witnesses having stated that accused had dispute with the deceased over payment of rent of the premises---If some independent persons from the locality gathered at the spot were not examined by Investigating Officer. that was no ground to disbelieve eye­witnesses as there was general trend in the society that neutral persons do not come forward to depose against accused due to fear of their lives--­Report of Forensic Science Laboratory was in the negative as empties taken into possession from the spot did not tally with pistol/mauser got recovered from accused, which had shown that pistol recovered from accused was not the same weapon of offence used by him for commission of murder of deceased and he . got recovered some other weapon knowingly /dishonestly to destroy the case of prosecution---Prosecution case having been established against accused beyond shadow of doubt, conviction and sentence awarded to accused by Trial Court were maintained.

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

----S. 302(b)---Appreciation of evidence---Chance witness---One could not be termed as a chance witness if he reasonably explained his presence at the spot and his narration regarding occurrence inspired confidence--­Even a chance witness could be natural witness if occurrence took place at a public place.

A.G. Tariq Chaudhary for Appellant.

Ch. Muhammad Abdus Saleem for the Complainant.

Masood Sadiq Mirza for the State.

Date of hearing: 9th May, 2003.

2003 P Cr. L J 1488

[Lahore]

Before Maulvi Anwarul Hag, J

MUHAMMAD TUFAIL---Petitioner

Versus

SESSIONS JUDGE, ATTOCK and 2 others---Respondents

Writ Petition No. 1038 of 2003, decided on 25th April, 2003.

Criminal Procedure Code (V of 1898)---

----S. 544-A---Penal Code (XLV of 1860), 5.324---Payment of compensation to victim---Responsibility of accused---Trial Court convicted accused and sentenced him to four years' R.I. with fine---With direction to pay sum of'Rs.1,00,000 to the victim as compensation and in default thereof to undergo six months' S. I.---Appellate Court maintained conviction and sentence of accused awarded by Trial Court, but reduced the amount of compensation from Rs.1,00,000 to Rs.50,000---High Court upheld judgment of Appellate Court and observed that since accused had served his entire sentence, he should be released---Victim who had not been paid compensation as reduced by the Appellate Court and upheld by High Court, filed application for its payment before Trial Magistrate which was dismissed, but in revision same was allowed by Appellate Court---Contention of accused was that he had served out substantive sentence and since he was ordered to be released, the effect was that he stood absolved of his liability to pay compensation---Contention of accused was repelled because under provisions of S.544-A(3) payment of compensation would be in addition to any sentence which Court could impose---Compensation directed to be paid by accused to victim, was relatable to conviction of- accused irrespective of sentence that had been imposed on him---High Court had only reduced sentence to the one already undergone by the accused, but compensation payable by accused was in addition to any sentence and would remain payable---Compensation was to be paid by accused and same was to be recovered as arrears of land revenue.

Sh. Zamir Hussain for Petitioner.

2003 P Cr. L J 1500

[Lahore]

before Tanvir Bashir Ansari, J

MUHAMMAD ASLAM---Petitioner

Versus

JUDICIAL MAGISTRATE, POLICE STATION JATLI and 6 others---Respondents

Writ Petition No.238 of 2003, decided on-29th April, 2003.

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

----Ss. 190, 154, 156, 157 & 173---Penal Code (XLV of, 1860), S.302/34---Constitution of Pakistan (1973), Art.199---Constitutional petition---Discharge -of accused---Police after investigation, prepared, discharge report of accused without considering evidence produced by the complainant---Magistrate received said report and without addressing to questions involved in the case and without conscious application of mind, proceeded to discharge accused by non-speaking order---Despite the fact that Investigating Officer in his report had found accused to be prima facie not guilty, said report was not binding on Court and despite recommendation of Investigating Officer regarding cancellation of the case and discharge of accused, Magistrate could decline to discharge accused and could proceed to take cognizance as provided under S.190, Cr.P.C. and summon accused to face trial, but that had not been done in the present case---Order of discharge, no doubt could be lawfully made by Magistrate, but while doing so he was obliged to consider all aspects of the case and to pass a meaningful and speaking order giving reasons for discharge of accused---No such reasons were spelt out from the order of Magistrate---Order passed by Magistrate was set aside by the High Court with direction to proceed in accordance with law after giving full opportunity to the complainant to establish its case in accordance with law.

Muhammad Siddique v. S.H.O. Saddar, Sialkot and 4 others PLD 1994 Lah. 407 and Talib Hussain and another v. Muhammad Aslam and another 1997 PCr.LJ 56 ref.

Raja Ikram Ameen Minhas for Petitioner, Raja Zahur Ahmed for the Complainant.

Tanveer Iqbal Khan, A.A.-G.

2003 P Cr. L J 1507

[Lahore]

Before Syed Sakhi Hussain Bukhari, J

Mst. SHABANA KAUSAR---Petitioner

Versus

FARHAN AHMAD---Respondent

Criminal Revision No. 150 of 2002/BWP; decided on 9th May, 2003.

Penal Code (XLV of 1860)---

----S. 302---Juvenile Justice System Ordinance (XXII of 2000), S.7--­Appreciation of evidence---Determination of age of accused---Accused, during pendency of case, filed application for .determination of his age which application was accepted by Trial Court and it was found that accused was juvenile and his trial should be conducted in accordance with Juvenile Justice System Ordinance, 2000---Revision against order of Trial Court---Accused had claimed that according to School Leaving Certificate and Form `B' of Registration Department his age was below 18 years whereas case of complainant was that on the day of occurrence age of accused was more than 18 years---With consent of the parties Medical Superintendent of the Hospital was directed to constitute Medical Board for determination of age of accused---Medical Board concluded that age of the accused was 20 to 22 years---Medical Board having been constituted with concurrence of the parties, accused could not raise objection to the report of Medical Board and thus it was established that at the time of occurrence age of accused was more than 18 years---Accused even from his general appearance appeared to be more than 18 years of age---High Court set aside order of Trial Court.

Hassan Zafar v. The State 2001 PCr.LJ 1939 ref.

Sardar Mehmud Iqbal Khakwani for Petitioner.

Abdul Ghaffar Bhutto and Mian Muhammad Tayyib Wattoo for Respondent No. 1.

M.A. Farazi for the State.

Date of hearing: 9th May, 2003.

2003 P Cr. L J 1512

[Lahore]

Before Maulvi Anwarul Haq and Tanvir Bashir Ansari, JJ

TARIQ MEHMOOD---Petitioner

Versus

Air Cdre. (R) NAYYAR Q. KHAWAJA and 4 others---Respondents

Writ Petitions Nos.3654 and 3668 of 2002, decided on 7th May, 2003.

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

----S. 9---Penal Code (XLV of 1860), S.40---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Issuance of notice by National Accountability Bureau---Validity---Petitioners had challenged notice issued to them by National Accountability Bureau, alleging that said notice had been issued to them at the behest of the complainant illegally---Application filed by the complainant on basis of which notice was issued to petitioners, had expressed his personal grievances with relation to acts allegedly committed by petitioners with regard to his person, reputation and his property---Ingredients of various clauses of S.9(a) of National Accountability Ordinance, 1999 though did not stand or even spelt out from the said complaint, but complaint did disclose commission of offences punishable under Penal Code, 1860 within meaning of S.40, P.P.C.---High Court directed that concerned Police Officers would proceed further in the matter and carry out their investigation in accordance with law keeping in view the contention of both the parties and if any information was available that some offences, as defined in National Accountability Ordinance, 1999, had been committed by the petitioners and some inquiry was necessary in that matter, there would be no bar upon National Accountability Bureau to proceed further in the matter strictly in accordance with National Accountability Ordinance, 1999.

Dr. Z. Babar Awan for Petitioner.

Abdul Baseer Qureshi, Deputy Prosecutor-General.

2003 P Cr. L J 1515

[Lahore]

Before Muhammad Akhtar Shabbir and Tanvir Bashir Ansari, JJ

JAN GUL and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.342 of 2002, heard on 29th April, 2003.

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

----Ss. 9(c) & 25---Appreciation of evidence---Prosecution had substantiated its case through production of oral and documentary evidence---No material contradiction had been found either in prosecution version as given in F.I.R. or the deposition made by prosecution witnesses---Prosecution witnesses had been cross-examined but nothing had been elicited which could detract from their statements---Defence witness produced by the accused had not made any confidence-inspiring statement which could displace and diminish the effect of prosecution evidence brought on the record---No delay had taken place in preparation of challan by police and delay in actual submission of challan to the Court had not been shown to have caused any prejudice to the accused--­Contention that recoveries had been effected in violation of S.103, Cr.P.C., was repelled because recovery of narcotic substances had been made in view of provisions of S.25 of Control of Narcotic Substances Act, 1997 which had specifically excluded application of S.103, Cr.P.C.---Evidence of recovery in respect of quantity of narcotic substances recovered and that sent for chemical analysis was consistently established by different prosecution witnesses---Report of Chemical Analyst in respect of substance was positive---Accused could not show prejudice, if any, which had been caused to them by mere fact that Sub­ Inspector of Police who had lodged complaint was also Investigating Officer of the case---Judgment of Trial Court could not be interfered with, in circumstances.

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

----Ss. 9(c) & 25---Appreciation of evidence---Police Officials competent witnesses---Police officials were competent testimony could not be discarded merely for the Police employees.

Muhammad Azam v. The State PLD 1996 SC 67 ref.

Nadeem Mumtaz Khan for Appellants.

Mukhtar Ahmed Gondal for the State.

Date of hearing: 29th April, 2003.

2003 P Cr. L J 1529

[Lahore]

Before Muhammad Akhtar Shabbir and Syed Sakhi Hussain Bukhari, JJ

Mst. SHAMIM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.231 of 2001/BWP, heard on 21st April, 2003.

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

----S. 9(c)---Appreciation of evidence---Prosecution case was that two accused persons got recovered opium and Charas from their house and that accused who was wife of one of said two accused persons had produced keys of Almirah and got recovered opium and some amount--­Prosecution's case showed that accused being wife of one of accused persons at relevant time was living with her husband in the same house--­Question whether said two accused persons were in possession of the house and case property allegedly recovered at the instance of accused/wife of one of two accused persons belonged to her husband and she was not responsible for the same was to be considered--­Prosecution's case was not that the lady accused was found selling or transporting opium from house of her husband to any other place---Case of the lady accused thus was not free from doubt---To say that only opium weighing 2 Kgs. was in possession of the lady accused whereas huge quantity of Charas and opium was recovered at. the instance of her husband and other accused from the same house did not sound natural--­Accused seemed to have been challaned only because she was wife of one of the accused persons---Prosecution having failed to prove its case against the lady accused beyond any shadow of doubt, conviction and sentence awarded to her by the Trial Court were set aside and she was acquitted of the charge against her.

Mian Muhammad Tayyib Wattoo for Appellant.

Ghazanfar Ali Khan for the State.

Date of hearing: 21st April, 2003.

2003 P Cr. L J 1532

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Rustam Ali Malik, JJ

ARSHAD MEHMOOD alias BHOLLA----Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.29/J and Murder Reference No.49 of 1999, heard on 22nd April, 2003.

Penal Code (XLV of 1860)---

----Ss. 302(b)/337-A(i)---Appreciation of evidence--- Sentence, reduction in---Complainant, who was also injured in the occurrence, was mother of the deceased and it was not believable that complainant would make a false statement to help the actual culprit---Presence of one of prosecution witnesses in the house of complainant in the absence of her husband could not be described as improbable---Accused being close relative of the husband of complainant and eye-witnesses they, could not be in any doubt about the identity of accused---Accused had not produced any evidence to establish his alleged enmity with prosecution witnesses ­Defence version that murder of deceased had taken place during occurrence of a dacoity in house of complainant was clearly an afterthought as no such suggestion had been put to the prosecution witnesses nor accused had taken any such plea in his statement under S.342, Cr.P.C.---Statements of defence witnesses were not consistent with defence plea---Plea of self-defence as put to complainant in course of cross-examination in form of suggestion, was not taken by accused in his statement under 5.342, Cr.P.C.---Prosecution no doubt had to prove its own case rather than taking advantage of weaknesses of defence, but it was also not open to defence to take contradictory pleas during the trial--­Ocular account as furnished by complainant and prosecution witness was fully corroborated by medical evidence and was further corroborated by recovery of Churri on pointation of accused---Prosecution though was not able to prove existence of motive and though it had not been established beyond reasonable doubt as to what had actually happened before occurrence which had led to Qatl-i-Amd of deceased, but prosecution had succeeded in establishing beyond reasonable doubt that it was the accused who had caused injuries to deceased as well as to the injured prosecution witness and injuries caused by him to deceased had resulted in her death---Conviction of accused under Ss.302(b) & 337-A(i), P.P.C. for causing Qatl-i-Amd of deceased and also for causing injuries to injured prosecution witness was upheld---Prosecution being unable to establish-as to what actually happened immediately before the occurrence, lesser sentence could be awarded to the accused in the interest of safe administration of justice---Upholding conviction of accused, death sentence awarded to him by Trial Court was converted to imprisonment for life accordingly.

Sardar Muhammad Lateef Khan Khosa for Appellant.

Iram Sajjad Gull for the Complainant.

Bashir Ahmad Gill for the State.

Date of hearing: 22nd April, 2003.

2003 P Cr. L J 1543

[Lahore]

Before Ch. Ijaz Ahmad, J

ZULFIQAR ALI ---Petitioner

Versus

DIRECTOR, ANTI-CORRUPTION ESTABLISHMENT PUNJAB, LAHORE and 6 others --- Respondents

Writ Petition No. 12021 of 2002 and Criminal Miscellaneous No.240 of 2003, decided on 3rd April, 2003.

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

----S. 463---Constitution of Pakistan (1973), Art. 199---Constitutional petition-- Allegation of forgery---Contention of the petitioner was that Anti-Corruption Authorities had no jurisdiction to take cognizance of the matter, in presence of pendency of the civil suit qua the same subject-matter and relief---Validity---Cause of action for proceeding against the forger arose immediately when the offence of forgery as defined in S.463, P.P.C. was committed.

Muhammad Shafi's case PLD 1992 Lah. 178 rel.

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

----S. 463---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Allegation of forgery---Matter was still pending before the Director, Anti-Corruption Establishment---High Court had only power to interpret the law and had no power to take the role of the investigating agency.

Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473 and The State v. Zia-ur-Rehman and others PLD 1973 SC 49 rel.

Muhammad Islam Sheikh for Petitioner.

Muhammad Hanif Khatana, Additional Advocate-General for Respondents Nos. 1 to 4 alongwith Mian Ghulam Murtaza, Assistant Director, Anti-Corruption, Lahore Region.

Muhammad Ghani for Respondents Nos.5 to 7.

Date of hearing: 3rd April, 2003.

2003 P Cr. L J 1548

[Lahore]

Before Abdul Shakoor Paracha, J

MUHAMMAD MUMTAZ --- Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.346 of 2001, heard on 21st May, 2003.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Appreciation of evidence---Accused had not caused any injury on the body of deceased as allegation against him in F.I.R. was that his fire missed---Fatal injury was attributed to the co-accused--­Element of common intention---Determination-- Principles---Haveli from where all the accused persons allegedly emerged to the scene of the occurrence did not belong to the accused---Accused had no occasion to be present at Haveli owned by the co-accused---Statement of Court-witness had clearly shown that accused had no intention to fire at the deceased--­Had there been any intention to do so, there was no hurdle in the way of accused to murder the deceased by firing more shots---No empty was recovered at the scene of occurrence---Accused could not have been convicted on sole ground of relationship with the co-accused---Apparently a larger net had been thrown by prosecution to involve three persons for one fatal injury attributed to the co-accused---Conviction could not corded on mere ground of abscondence of accused---Participation of accused in occurrence by sharing common intention under S.34, P.P.C. being doubtful, he was given benefit of doubt and was acquitted of charge by setting aside his conviction and sentence awarded to him by Trial Court.

Wasal Qamar v. Noor Dad and others 2000 PCr.LJ 2038; Ghulam Farid v. The State 1992 SCMR 1258; Sher Ali alias Sheri v. The State 1998 SCMR 190; Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182; 1997 PCr.LJ 259 and Qamar Ali Khan v. Zardad Khan and others 1992 PCr.LJ 362 ref.

Shaukat Aziz Siddiqui for Appellant.

Malik Rab Nawaz Noon and Malik Anwarul Haq for the Complainant.

Zafar Abbas Mir for the State.

Date of hearing: 21st May, 2003.

2003 P Cr. L J 1558

[Lahore]

Before Raja Muhammad Sabir, J

Mrs. AMATUL JALIL KHAWAJA---Petitioner

Versus

Syed IJAZ SHAH, HOME SECRETARY, GOVERNMENT OF PUNJAB, LAHORE and 4 others---Respondents

Criminal Original No. 153/W in Writ Petition No.62 of 2003, decided on 12th May, 2003.

Constitution of Pakistan (1973)---

----Art. 204---Contempt of Court Act (LXIV of 1976), Ss.3/4---Security of Pakistan Act (XXXV of 1952), S.3---West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S.3---Contempt of Court--­Three detenus were taken into custody by the officials of Federal Investigating Agency---Court directed for production of said three detenus but they were not produced on the ground that they had been detained under S.3 of Security of Pakistan Act. 1952---Petition against detention was allowed and when bailiff went to the concerned jail, he was told that detenus could not be released as there was another detention order against them---Petition for initiation of contempt proceedings was moved by the petitioner for not releasing detenus in compliance with order of Court---Authorities in their parawise comments had submitted that detenus who earlier were detained under Security of Pakistan Act 1952 by Federal Government (as it was a Federal Law) had been detained for a period of three months by Government of Punjab. Home Department in exercise of powers conferred on it under S.3 of West Pakistan Maintenance of Public Order Ordinance, 1960 which was a Provincial Law---Record showed that subsequent detention order passed under S.3 of West Pakistan Maintenance of Public Order Ordinance, 1960, was duly served on detenus on the same date---Allegation that said order of detention was not served on the detenus, was negated by the official record containing-their signatures thereon---Authorities, however in good faith, bona-fidely withdrew the said order of detention---Action or conduct of Authorities did not constitute defiance of order of the Court--­Authorities were competent to pass detention order under S.3 of West Pakistan Maintenance of Public Order Ordinance, 1960 as earlier detention order was passed by the Federal Government under Security of Pakistan Act, 1952---Both Governments had independent jurisdiction for passing of order under their respective laws---Provincial Government had not disobeyed order of the Court and in fact had acted under West Pakistan Maintenance of Public Order Ordinance, 1960---Petitioner having failed to adduce any material on record to establish any violation of the order of the Court by respondents, petition for contempt of Court, was dismissed.

West Pakistan Water and Power Development Authority through its Chairman v. Chairman, National Industrial Relations Commission PLD 1979 SC 912 and Saif-ul-Haq Ziay v. Majid Nizami and others 1999 MLD 2503 ref.

Pervaiz Inayat Malik for Petitioner.

Syed Shabbar Raza Rizvi, A.-G., Punjab.

2003 P Cr. L J 1563

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and M. Naeemullah Khan Sherwani, JJ

Hafiz MUHAMMAD NASEEM (MUHAMMAD WASEEM alias NASEEM) and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1320 and Murder Reference No.40/T of 2001, heard on 5th May, 2003.

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

----Ss. 302(b)/392/34---Anti-Terrorism Act (XXVII of 1997) S.7(i)(a) (ii)---Appreciation of evidence---F.I.R. regarding the occurrence having been expeditiously registered, chances of fabrication of a fictitious tale of occurrence after deliberation and consultation were ruled out altogether ---F.I.R. was prompt and straightforward based upon genuine facts of case---Hearts of people were engulfed with fear, freight and horror because of terrorist activities committed by the accused persons-­Police officials proved their worth as they intercepted armed terrorist who were endeavouring their best to make good their escape after having killed many innocent persons--Spot arrest of accused persons alongwith weapons and other incriminating articles had furnished a solid proof of their guilt---Case against accused persons had been lodged on sound basis and story was real, natural and confidence-inspiring---Weapons secure by police at the spot from accused and empties seized were dispatched to Office of Forensic Science Laboratory, which after comparison furnished positive report---Prosecution witnesses described event at greater length---Such witnesses made consistent statements with regard to date time and place of occurrence and corroborated each other's statement on all material facts of the case---Prosecution witnesses had no grudge grouse, malice or spite against accused persons and they stated a material facts honestly, plainly and with exactitude---Small discrepancies or some omissions appearing in statements of witnesses could not be sufficient to brush aside their solid testimony, especially when the presence at the spot was natural---Accused had behaved like dare devils and desperadoes and committed atrocious crime against human beings an took to their heals to escape arrest---Medical evidence was in line wit ocular account---Prosecution had successfully brought home the guilt to accused by production of reliable eye-witnesses, recovery of weapons, report of Forensic Science Laboratory and medical evidence---No extenuating circumstances were available in view of grave crimes committed by the accused---Accused were rightly convicted and sentenced---Death sentence awarded to accused was confirmed.

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

----Ss. 302(b)/392/34---Appreciation of evidence---Police witnesses--­Police officials were as good witnesses as any other citizen, unless and until malice, bias or animosity was established against them---Conviction on statements of police witnesses when natural, could be safely made.

Yaqoob Shah's case PLD 1976 SC 53 ref.

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

----Ss. 302(b)/392/34---Appreciation of evidence---Principles---Mere suggestions would not constitute legal proof of facts suggested--­Suggestion put before witnesses that accused were never arrested from the spot nor occurrence was witnessed by witnesses, was not sufficient to controvert evidence of prosecution witnesses---Best thing should have been to produce evidence in defence to demolish prosecution version--­Accused were expected to endeavour hard to establish their case or defence if it was a good one---Total failure of the accused to produce what evidence they could have produced, if it existed, was open to inference that it did not exist at all.

Muzaffar Ahmad for Appellants.

Imtiaz Ahmad Chaudhry for the State.

Date of hearing: 5th May, 2003.

2003 P Cr. L J 1573

[Lahore]

Before Ch. Iftikhar Hussain, J

Mst. SALMA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.809/B of 2003, decided on 20th May, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497, first proviso---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Bail, grant of---Accused was mother of four children and was behind the bars for the last about six months and was stated to be previous non-convict---High Court exercising discretion in favour of accused, admitted her to bail.

Ch. Muhammad Sharif for Petitioner.

Masood Sabir for the State.

2003 P Cr. L J 1576

[Lahore]

Before Ch. Iftikhar Hussain, J

ZAHOOR AHMED ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.749/B of 2003, decided on 7th May, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Bail, grant of---Further inquiry---Allegation against accused was that he subjected victim boy aged about 13/14 years to sodomy in his shop---Case against the accused was found to be false by S.H.O. concerned and D.S.P. during investigation and cancellation of case was recommended by them---Report for discharge of accused from case was prepared, but it was not agreed to by the Magistrate concerned---Medico-legal Report of alleged victim boy showed that his external anal area was normal--­Report of Chemical Examiner was also to the effect that anal swabs of victim boy were not stained with semen---Case against accused, in circumstances, had become as one of further inquiry into his guilt covered under S.497(2), Cr.P.C.---Accused, who was behind the bars for the last about four months, was previous non-convict---Accused was entitled to grant of bail, in circumstances.

Malik Javaid Akhtar Wains for Petitioner.

Ramzan Sial for the State.

2003 P Cr. L J 1582

[Lahore]

Before Ch. Iftikhar Hussain, J

ZAHID NASEER---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1136/B of 2003, decided on 21st May, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), 337-F(iv)---Bail, grant of---Accused was behind the bars for the last about six months and investigation was complete---Offence under Ss.337-A(i) & 337-F(i), P.P.C. was bailable one and S.337-F(iv) P.P.C. was not covered under prohibitory clause of S.497(1), Cr.P.C.---Grant of bail in such-like cases was a rule and refusal an exception---No exceptional circumstances existed in the present case to warrant refusal of bail---Accused was stated to be previous non-convict---Accused was admitted to bail, in circumstances.

Sh. Mubarak Ahmad for Petitioner.

Sh. Arshad Ali for the State.

2003 P Cr. L J 1587

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD NASIR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.925/B of 2003, decided on 20th May, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Bail grant of--­Further inquiry---Accused, who was not named in the F.I.R., was alleged to have made extra-judicial confession---Accused was merely present with his co-accused who had fired at the deceased and accused had committed no overt act qua the deceased---Question of vicarious liability of accused for murder of deceased was to be gone into at the time of trial---Case of accused, in circumstances, was covered under S.497(2), Cr.P.C. requiring further inquiry into his guilt---Accused had been stated to be a previous non-convict---Accused was entitled to bail, in circumstances.

Ch. Faqir Muhammad for Petitioner.

Pervaiz Akhtar Gujjar for the State.

2003 P Cr. L J 1588

[Lahore]

Before Ijaz Ahmad Chaudhry and Ch. Iftikhar Hussain, JJ

UMAR HAYAT and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.6/SAC/L of 1994, 132 and 133 of 1995, heard on 17th April, 2003.

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

----Ss. 302(b)/392/427/34---Appreciation of evidence---Evidence on record had sufficiently proved that F.I.R. was lodged with promptitude which had eliminated possibility of any deliberation or consultation for fabrication of any story---Names of accused persons alongwith acquitted accused were duly mentioned in the said F.I.R. besides the eye­witnesses---Presence of eye-witnesses alongwith deceased and complainant was quite natural as deceased was on election compaign and during said compaign candidates usually were accompanied by their supporters and near relatives ---All three witnesses were subjected to lengthy cross-examination, but nothing could be brought on record by defence to doubt their presence at the spot at the time of occurrence--­Prosecution witnesses who had reiterated story with each and every detail at the trial, had no previous ill-will or enmity to falsely implicate accused in the case and they had even not been suggested any motive for false implication of accused during cross-examination---Such witnesses were consistent on material points and their statements were not contradictory to each other---Ocular account furnished by such independent and natural witnesses could not be discarded---Accused had contended that prosecution had not been able to prove any motive against them---Not necessary always to prove motive as sometimes killings were made without any reason only to cause harassment---Medical evidence was also not in contradiction with ocular account---Acquittal of two co-accused was not sufficient to discard ocular account to the extent of accused as they had been attributed specific role at the trial and their case was distinguishable from acquitted accused---Report of Forensic Science Laboratory in respect of empty recovered from underneath the dead body of deceased from place of occurrence was positive---Case was of target killing committed after premeditation and accused persons had shared intention in murder of deceased---Event was a daylight occurrence and accused did not claim that they were not previously known to prosecution witnesses---Trial Court, in circumstances, had not committed any illegality in convicting accused persons---Conviction of three accused under Ss.302/34, P.P.C. was maintained not under Qisas, but under Ta'zir as prosecution evidence was net sufficient to meet required standard provided under S.304, P.P.C.---Accused who had been attributed specific fatal fire-arm injury on vital part of deceased, having not been able to bring on record any mitigating circumstance calling for lesser punishment his death sentence was maintained---Other two accused who, though had been proved to have shared common intention in the occurrence, but were not attributed any fatal injury to deceased, their death sentence, by way of abundant caution, was converted to life imprisonment---Other co-accused were rightly acquitted.

Anwaar Hussain v. The State 2000 SCMR 105 ref.

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

----S. 417---Appeal against acquittal---Criteria for interference in appeal against acquittal was entirely different from that of appeal against conviction---View adopted by Trial Court to the extent of acquittal of accused could be formed from the evidence on the record---Interference could not be made merely on ground that from reappraisal of evidence view other than adopted by Trial Court could also be formed, unless it was proved that acquittal had resulted in miscarriage of justice.

Sardar Muhammad Latif Khan Khosa for Appellants.

Ch. Pervaiz Aftab for Respondents (in Criminal Appeal No.133 of 1995).

Aftab Farrukh for the Complainant/Appellant (in Criminal Appeal No. 133 of 1995).

Masood Sabir for the State.

Date of hearing: 17th April, 2003.

2003 P Cr. L J 1606

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD YOUNUS---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.775/B of 2003, decided on 7th May, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/16---Bail, grant of---Further inquiry---Allegation against accused was that he had abetted his co-accused in enticement or abduction of a lady and thereafter had also subjected her to Zina-bil-­Jabr--- Alleged abductee in her affidavit had denied allegation of her enticement or Zina with her by anyone---Copy of plaint in suit for dissolution of marriage brought by alleged abductee against her husband, had also been produced on record where she did not level any allegation of that sort against anyone---Divergent statements were available on Police Record in respect of the matter---Was yet to be seen whether accused had abetted his co-accused in enticement or taking away the alleged abductee or had committed Zina-bil­-Jabr with her---Case of accused was covered under subsection (2) of 5.497, Cr.P.C. requiring further inquiry into guilt of accused---Accused being previous non-convict was entitled to grant of bail, in circumstances.

Mahar Tanvir Ahmad Jangla for Petitioner.

Yousaf Syed for the State.

2003 P Cr. L J 1608

[Lahore]

Before Muhammad Farrukh Mahmud, J

GANGOO RAM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.58 of 1992, heard on 8th and 9th May, 2003.

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

----Ss. 302/201---Criminal Procedure Code (V of 1898), Ss. 164 & 364--­Appreciation of evidence---Confessional statement of accused, recording of---Trial Court had convicted accused on the basis of the confessional statement made by accused before a Magistrate---Provisions of S.164(3), Cr.P.C. were not adhered to by the Magistrate while recording confessional statement of accused as it was never explained to him that he was not bound to make any such statement---Recorded order showed that the accused was asked twice as to whether he wanted to make a confession or not---Police remaining present during that time, accused was hardly in a position to say no in such a situation, specially when accused was never assured that after recording of his statement he was not to be handed over to the police---Magistrate concerned had admitted during his cross-examination that during recording of confessional statement handcuffs of accused were not removed nor he had recorded any certificate at the foot of confession as envisaged by S.364, Cr.P.C.--­Said Magistrate, instead of making accused aware of the fact in clear terms that he was not bound to make any confession and what would be the consequence of making confession, thought it proper that 45 minutes time was enough to ensure voluntariness of confession of accused---Trial Court had completely lost sight of the fact that during the time which was allotted to accused for reflecting over the matter, police remained present in Court-room and handcuffs of accused were never removed--­Magistrate never assured the accused that he would not be handed back to the police---Such confession which could not be termed as voluntary was inadmissible in evidence---High Court allowing appeal set aside judgment of Trial Court and acquitted accused.

Ghulam Muhammad v. The State PLD 1971 Lah. 850; Syed Azeem Shah v. The State PLD 1987 Quetta 96; Wazir and others v. The State PLD 1960 (W.P.) Kar. 674; Hakeem Gul v. The State PLD 1964 (W.P.) Pesh. 1 and Sarwan Singh Rattan Singh v. State of Punjab AIR 1957 SC 637 ref.

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

----Ss. 164 & 364---Guidelines provided by law to Magistrate to ensure that confession being made by accused was voluntary, detailed.

A.R. Tayyab for Appellant.

M.A. Farazi for the State.

Dates of hearing: 8th and 9th May, 2003.

2003 P Cr. L J 1617

[Lahore]

Before Ch. Iftikhar Hussain, J

ABDULLAH alias SINDHI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1103/B of 2003, decided on 20th May, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.399/402---Bail, grant of ---Co­-accused in the case had been allowed bail and on merits case of the accused was identical to the co-accused---Accused had been refused bail mainly on ground that he was involved in other case of different type while he admittedly was not, previous convict---Mere involvement of not disentitle him to relief of bail in a case---In view of grant of bail to co-accused, accused was also entitled to same relief as per rule of consistency---Accused was behind the bars for the last more than five months---Accused, in circumstances, was entitled to bail.

Athar Rehman Khan for Petitioner.

Asfar Tariq Lodhi for the State.

2003 P Cr. L J 1658

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD SIDDIQUE---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.45 of 2001, heard on 8th May, 2003.

Penal Code (XLV of 1860)---

----S. 302(c)/34---Appreciation of evidence---Accused was convicted on the basis of his statement recorded under S.342, Cr.P.C. and prosecution version was rejected in toto as same was found to be untrue---Occurrence had taken place in the mid of very cold night of the month of November and both deceased (man and woman) were done to death in the house of accused---Inquest report showed that dead bodies of both deceased were lying on one cot and a Kassi' (offence weapon) was also lying nearby--­Version of prosecution witnesses who were father and cousin of the deceased, did not appeal to reason in circumstances of case whereas version of accused appeared to be natural---Both prosecution witnesses had stated that acquitted co-accused not only were present at the scene of occurrence, but they had caused injuries to both the deceased---Acquittal of said co-accused had not been challenged either by State or by the complainant which had attained finality--If evidence of eye-witness had been found false or doubtful in respect of acquitted co-accused, it was necessary for the Court to look after additional strong circumstantial evidence in the nature of corroborative testimony against accused who was sought to be convicted upon testimony of same witnesses 'whose evidence was not acted upon in respect of acquitted accused---Trial Court had rightly not placed any reliance on recovery of blood-stained hatchet from possession of accused---Presence of blood-stainedKassi' had been mentioned at Sr. No.3 in Column No.24 of Inquest Report and in normal circumstances, same had been taken into possession by Investigating Officer when he visited place of occurrence---Accused had only prayed for reduction in sentence and remittance of compensation---Trial Court had rightly rejected prosecution case and had correctly based conviction of accused on his statement recorded under S.342, Cr.P.C.---Statement of accused, in circumstances, was to be accepted as a whole which was to the effect that he committed murder of both deceased who were found to be lying together by him at time of occurrence----One of the deceased was wife of accused---Conviction of accused under S.302(c), P.P.C. on two counts was maintained, but sentence of accused from rigorous imprisonment for 25 years was reduced to 10 years' R.I. on each count which would serve the ends of justice, in circumstances of case---Amount of compensation imposed upon accused under S.544-A, Cr.P.C., was also remitted as both deceased at relevant time had been found committing Zina, and as such their heirs were not entitled to any compensation.

Feroze Khan v. Fateh Khan and 2 others 1991 SCMR 2220; The State v. Muhammad Sharif 1995 SCMR 635; The State v. Muhammad Hanif and 5 others 1992 SCMR 2047; Ghulam Murtaza v. The State 1985 PCr.LJ 1191; Maqsood Ahmad v. The State 1985 PCr.LJ 2236; Muhammad Bakhsh v. The State 1990 MLD 1996 and Muhammad Saleh v. The State PLD 1965 SC 466 ref.

Sardar Ahmad Khan for Appellant.

A.R. Tayyib for the Complainant.

Abdul Ghani for the State.

Dates of hearing: 7th and 8th May, 2003.

2003 P Cr. L J 1664

[Lahore]

Before Ch. Iftikhar Hussain, J

ABDUL SATTAR and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.864/B of 2003, decided on 8th May, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324/148/149---Bail, grant of---Further inquiry---Allegation against accused persons was that they and their two co-accused, who had been found innocent, and other two persons were substituted for said two co-accused, had caused Sota blows to husband of complainant at his legs and other parts of his body---No specific injury on the body of injured was ascribed to accused persons--­Enmity between parties was admitted---Case against accused persons, in circumstances needed further inquiry into their guilt and their case was covered under subsection (2) of S.497, Cr.P.C.---Photo copy of birth entry of one of accused persons had shown that he, at the time of incident, was less than 16 years of age while other accused was younger than him---Accused were entitled to bail on that score also--­Accused, who were behind the bars for the last more than one year, were previous non-convicts---Accused were admitted to bail, in circumstances.

Mehr Tanweer Ahmad Jangla for Petitioners.

Mehr Saleem Akhtar for the State.

2003 P Cr. L J 1666

[Lahore]

Before Muhammad Farrukh Mahmud, J

HAMID---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 114 of 1997/BWP, heard on 8th April, 2003.

Penal Code (XLV of 1860)---

----S. 302(c)---Appreciation of evidence---Prosecution witness who had furnished ocular account and had stated about recoveries, neither was related to the deceased nor had any ill-will towards accused so as to involve him in a false case---Despite lengthy cross-examination, evidence of said prosecution witness remained undented---Complainant though was related to the deceased, had given a straightforward account which rang true---Ocular account was fully corroborated by promptly lodged F.I. R. as well as by factum of recovery of rifle as recovered empty tallied with said rifle---Medical evidence also had supported version of prosecution--­Accused having rightly been convicted by Trial Court, he was justified in not pressing appeal against judgment of Trial Court on merits---Accused was aged about 20/21 years at the time of occurrence---No previous enmity or ill-will existed between the deceased and accused--.Accused was disgraced in the company of friends and guests by indecent joke made by deceased about accused, who was gravely provocated--­Provocation was not only grave, but also sudden which blurred the reasoning of accused who came out with rifle lying in his room and fired at deceased---Accused who had not pressed appeal against judgment of Trial Court on merits, simply had prayed for reduction in sentence--­Conviction of accused under S.302(b), P.P.C. was altered to under S.302(c), P.P.C. and his sentence was reduced to period already served by him.

Qamar Hameed Hashmi for Appellant.

Ghazanfar Ali Khan for the State.

Date of hearing: 8th April, 2003.

2003 P Cr. L J 1670

[Lahore]

Before Ch. Iftikhar Hussain, J

ABDUL RASHEED---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 488/B of 2003, decided on 6th May, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/11--Bail, grant of---Further inquiry---Allegation against accused was that he alongwith other unknown persons had forcibly abducted sister-in-law of complainant and thereafter he subjected her to Zina-bil-Jabr---Alleged abductee was a dumb girl and through signs indicated that she was subjected to Zina-bil-Jabr by accused---Alleged abduetee had been arrayed as an accused in the case being consenting party to the affair---State Counsel had conceded that there was no direct evidence of Zina or Zina-bil-Jabr against the accused---Question that in such circumstances, if the accused could be held liable for alleged offence, needed serious consideration---Case of accused, in circumstances, was covered under subsection (2) of S.497, Cr.P.C. calling for further inquiry into his guilt---Accused was behind the bars for the last about 8 months and was a previous non-convict---Accused, in circumstances was entitled to concession of bail.

Mian Fazal Rauf Joya for Petitioner

Nasrullah Khan Kakar for the State

Sikandar Javed for the Complainant

2003 P Cr. L J 1672

[Lahore]

Before Muhammad Farrukh Mahmud, J

RIAZ AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.59 of 2000/BWP, heard on 31st March, 2003.

Penal Code (XLV of 1860)---

----S. 302(c)---Appreciation of evidence---Statement of complainant was recorded by police at the hospital who had no time to concoct a false story---Complainant and prosecution witness hack given a straightforward account of occurrence and despite cross-examination no dent could be caused to their testimony---Ocular account vas fully supported by medical evidence---No evidence was on record to show that any ill-will existed between the accused and complainant party prior to the occurrence---Only one injury was caused by the accused on person of deceased by a weapon which did not qualify as lethal weapon---Evidence on record and circumstances, of case had fully established that occurrence had taken place without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and accused had not taken undue advantage or acted in a cruel or unusual manner---Accused had not pressed his appeal against judgment of Trial Court on merits, but had prayed for reduction of sentence---Conviction and sentence awarded to accused under S.302(b), P.P.C was converted to S.302(c), P.P.C. and sentence of life imprisonment awarded to accused by Trial Court was altered with sentence, to the period already served out by accused as same would serve ends of justice in circumstances of case.

Ali Muhammad v. Ali Muhammad PLD 1996 SC 274 ref.

Sardar Muhammad Aslam Khan for Appellant.

Mirza Muhammad Nadeed Asif for the Sate.

Dates of hearing: 27th, 28th and 31st March, 2003.

2003 P Cr. L J 1688

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD HANIF and 2 others---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.346/B of 2003, decided on 8th May, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/148/149---Bail, grant of---Two of the accused persons had caused injuries only to the complainant with Sotas and they had been assigned no injury to deceased and third accused had allegedly caught hold of complainant when said two accused were inflicting Sota blows to complainant and had also fired in air with his gun---Said third accused too had not been ascribed any overt act qua the deceased---Question of vicarious liability of accused persons were to be gone into at the time of trial---Accused were stated to be previous non-convict---Case for enlargement of accused on bail, having been made out, they were admitted to bail.

Mehmood Akhtar and another v. Haji Nazir Ahmad and 4 others 1995 SCMR 310; Mumtaz Hussain and 5 others v. The State 1996 SCMR 1125; Atta Ullah and 3 others v. The State and another 1999 SCMR 1320; Muhammad Sadiq and another v. The State 1996 SCMR 1654 and Ghulam Nabi and another v. The State 2001 YLR 1309(2) ref.

Ch. Muhammad Ashfaq for Petitioners.

Sheikh Arshad Ali for the State.

Mian Riaz Hussain for the Complainant.

2003 P Cr. L J 1695

[Lahore]

Before Ch. Iftikhar Hussain, J

MUNIR AHMAD alias SAIEN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.9 of 1993, decided on 7th May, 2003.

Penal Code (XLV of 1860)---

----Ss. 377/511---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Appreciation of evidence---Complainant/alleged victim and other prosecution witness had narrated incident and complainant had stuck to his version as contained in the F.I.R.---No enmity was found between complainant and accused persons prior to the alleged incident and complainant had no reason to falsely involve accused in the case and to depose against them ---Testimony of complainant stood corroborated by evidence of prosecution witness and said prosecution witness though was related to complainant, but such fact by itself was not sufficient to discard his testimony---Said prosecution witness did not have any motive to depose falsely against accused persons---Testimony of prosecution witness, in circumstances, could not be discarded, especially when his evidence had established presence of two accused at the spot at the relevant time---Fact that accused had attempted to commit sodomy upon complainant/victim was fully established and medical evidence had also corroborated the same---Charge under S.377, P.P.C. read with S.511, P.P.C. having stood proved against the accused beyond any shadow of doubt, he was rightly convicted for the same---Sentence awarded to accused already being shorter one, no reason was shown to further reduce it.

Ch. Muhammad Saleem Akhtar for Appellant No.2.

Syed Asad Abbas for the State.

2003 P Cr. L J 1708

[Lahore]

Before Ijaz Ahmad Chaudhry and Ch. Iftikhar Hussain, JJ

MEERA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.31 of 1998, heard on 16th April, 2003.

Penal Code (XLV of 1860)---

----Ss. 302(b)/324/353/148/149---Appreciation of evidence---Complainant, Police Inspector had prepared complaint immediately after occurrence and had supported the same at the trial---Complainant was subjected to lengthy cross-examination, but nothing could be gained by defence from him, except a minor contradiction of no importance which could not be termed more than a lapse committed by him during lengthy cross-examination---Complainant had been supported by other eye­-witness who was also one of members of the raiding party like complainant---Both had established their presence at the spot at the time of commission of offence by accused---No contradictions or discrepancies were appearing in statements of said eye-witnesses on material points with each other or with other witnesses---Both said witnesses had no motive to falsely implicate accused in the case and no question of substitution had arisen in the case---Both of them had seen occurrence and had remained consistent on each and every detail of the matter---Both witnesses were consistent that shot fired by accused hit deceased in front of his chest resulting in his death which was supported by medical evidence---Report of Forensic Science Laboratory had shown that empties recovered from the spot were fired from the rifle recovered from accused---Ocular account to the extent of involvement of accused in commission of crime, in circumstances, was also corroborated by recovery of empties---Prosecution had been able to bring home guilt to the accused beyond any shadow of doubt---Accused could not be given benefit of acquittal of co-accused as they were not attributed any active role or injury to deceased or any of prosecution witnesses, while accused had been attributed single fatal shot in chest of deceased--­Conviction of accused under S.302(b), P.P.C. was maintained---In absence of any mitigating circumstances calling for lesser sentence to accused, death sentence awarded to him by Trial Court, was confirmed.

Allah Dad and another v. The State 1995 SCMR 142 ref.

Malik Muntazir Mehdi for Appellant.

Sh. Muhammad Raheem for the State.

Date of hearing: 16th April, 2003.

2003 P Cr. L J 1714

[Lahore]

Before Ch. Iftikhar Hussain, J

GHULAM SARWAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1 in Criminal Appeal No.288 of 2003, decided on 21st May, 2003.

Criminal Procedure Code (V of 1898)---

----Ss. 426 & 497---Penal Code (XLV of 1860), Ss.420/468/471--­Prevention of Corruption Act (II of 1947), S.5(2)---Application for suspension of sentence---Accused was convicted under S.471, P.P.C. and was sentenced to two years' R.I. with fine---Said offence according to Second Schedule to Criminal Procedure Code, 1898 was bailable ---Same principles would govern question of suspension or otherwise of the sentence as were relevant for grant of bail to the accused under S.497, Cr.P.C.---Case for suspension of sentence having been made out, application of accused was accepted and sentence of accused was suspended pending disposal of his appeal and he was directed to be released on bail.

Sardar Altaf Hussain Khan for Petitioner.

Rana Tahir Mehmood for the State.

2003 P Cr. L J 1716

[Lahore]

Before Asif Saeed Khan Khosa and Muhammad Farrukh Mahmud, JJ

MUHAMMAD ASLAM and 4 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1 of 2001 in Criminal Appeal No. 211 of 1999, decided on 30th October, 2001.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S.302(b)---Suspension of sentence application for---Trial Court in its judgment had itself concluded that conduct of accused and his family had shown that they had no aggressive designs against the rival party---Place of occurrence was the house of accused--Version of incident advanced by prosecution witness, did not inspire confidence---Lodging of F.I.R. by complainant was shrouded in mystery---Reliance on evidence produced by prosecution, therefore, was not safe in circumstances---Explanation given by accused party regarding incident was more plausible---Earlier applications filed by accused for suspension of their sentences though were dismissed, but more than one year had passed since then and no prospect was in sight of early hearing of appeals even after 2-1/2 years of their conviction--­Question as to which version advanced by rival parties was correct, would be considered by High Court at the time of hearing of main appeals---Sentences of imprisonment passed against accused, were suspended and they were admitted to bail.

Sahibzada Farooq Ali Khan for Petitioners (in Criminal Miscellaneous No.1 of 2001 and Criminal Appeal No.211 of 1999).

Mian Rasheed Ahmad for Petitioners (in Criminal Miscellaneous No. 1 of 2001 and Criminal Appeal No.204 of 1999).

Muhammad Riaz Aura for the State.

Date of hearing: 30th October, 2001.

2003 P Cr. L J 1718

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD AMIN ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.618/B of 2003, decided on 6th May, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.409---Prevention of Corruption Act (II of 1947), S.5---Bail, grant of---Further inquiry--­Allegation against accused was that he had received not only illegal gratification from the public in connection with mutations, but also had mis-appropriated official fees for the same received by him from the people---Prosecution had conceded that all official fees received by accused stood deposited in Government Treasury---Accused had been departmentally punished by way of reduction in his pay--Question whether in such circumstances, accused could be held liable for alleged offence, needed serious consideration---Case of accused was covered under subsection (2) of S.497, Cr.P.C. requiring further inquiry into his guilt---Accused was behind the bars for the last about one year and was a previous non-convict---Accused was entitled to bail, in circumstances.

Syed Athar Hasan Shah Bukhari for Petitioner.

Syed Nadeem Haider for the State.

2003 P Cr. L J 1720

[Lahore]

Before Bashir A. Mujahid and Khawaja Muhammad Sharif, JJ

SARFRAZ alias MIDO---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.253 and Murder Reference No. 104 of 1998, decided on 24th September, 2002.

Penal Code (XLV of 1860)---

----Ss. 302(b)/324/337-F(iii)---Appreciation of evidence ---F.I.R. was promptly recorded and accused was nominated with specific role--­Motive, though was double-edged weapon, but participation in occurrence had been admitted by the accused---Presence of prosecution witness at the spot, who was injured in occurrence, could not be doubted---Defence plea that complainant party was the aggressor, was not believable as nobody was injured from accused side---Injury attributed to accused was corroborated by medical evidence---By keeping prosecution case and defence plea in juxtaposition prosecution case had been established against accused beyond any shadow of doubt---No reason appeared to interfere in conviction recorded by Trial Court against accused---Prosecution witness had attributed fatal injury caused to the deceased to acquitted accused and not to the accused---Same witnesses having been disbelieved against acquitted co-accused, it was not a case for capital punishment on the principles of safe administration of justice---Maintaining conviction of accused, death sentence awarded to him by Trial Court was reduced from death to imprisonment for life--­Injury of prosecution witness having not been attributed to accused his conviction and sentence under Ss.324 & 337, P.P.C., were set aside--­Murder reference was answered in negative.

Masood Mirza and Bashir Abbas Khan for Appellant.

A.H. Masood for the State.

Date of hearing: 24th September, 2002.

2003 P Cr. L J 1726

[Lahore]

Before Ch. Iftikhar Hussain, J

ATHAR and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.904/B of 2003, decided on 7th May, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/34---Bail, grant of--­Further inquiry---Allegation against accused persons was that they alongwith their co-accused had administered some poisonous material to the deceased which resulted into his death---No direct evidence was available against the accused persons that they had administered any such poisonous material to deceased, which resulted into his death---No motive was ascribed to accused and they in investigation by S.H.O. and D.S.P., had been found innocent and were left at the mercy of the Court---All such facts had made the case of accused persons as one of further inquiry into their guilt which was covered under subsection (2) of S.497, Cr.P.C.---Accused were stated to be previous non-convicts---Accused were granted bail, in circumstances.

Sahibzada Farooq Ali Khan for Petitioners.

Sh. Arshad Ali for the State.

2003 P Cr. L J 1728

[Lahore]

Before Ijaz Ahmad Chaudhry, J

AURANGZEB---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3554/B of 2002, decided on 17th June, 2002.

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

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of--­Further inquiry- -Police in its findings during investigation conducted by senior Police Officers i.e. A.S.P. and---Additional S.P., had come to definite conclusion that accused was not present at the spot alongwith his co-accused and that he had not fired at the deceased---Allegation against accused had been found false, but as prosecution witnesses insisted upon involvement of accused, he had been placed in Column No.2 of the Challan by putting him at the mercy of the Court---Though the findings of police were not binding upon the Courts, but same could be considered in peculiar circumstances of case if those were based on statements of witnesses recorded during investigation and were not based on surmises and conjectures---Benefit of opinion given by Police was given to accused alongwith material factor that accused was attributed only single injury on non-vital part of body of deceased which was simple in nature--­Possibility of levelling of false allegation by complainant party implicating accused in the case due to previous enmity between the parties, as attributed in F.I.R., could not be ruled out, in circumstances---Accused was behind the bars since long and challan had not been submitted after conclusion of investigation---Accused had succeeded to make out case for bail after arrest---Bail could not be withheld as a punishment and case of accused fell within the purview of further inquiry covered by subsection (2) of S.497, Cr.P.C.---Accused was admitted to bail, in circumstances.

1999 PCr.LJ 184; PLD 1983 Sh.C. (AJ&K) 1 and 1998 SCMR 1743 ref.

(b) Criminal trial---

---- Finding of police---Binding force of ---Finding of Police though was not binding upon the Courts, but same could be considered in peculiar circumstances of case if it was based on statements of witnesses recorded during investigation and was not based on surmises and conjectures.

Tariq Shamim for Petitioner.

Qazi Muhammad Saleem for the Complainant.

Ms. Shagufta Kausar for the State.

2003 PCr.LJ 1731

[Lahore]

Before Ch. Iftikhar Hussain, J

Mst. HASAN BIBI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.906/B of 2003, decided on 8th May, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.380/411/457---Bail, grant of---Further inquiry---Allegation against accused was that she, in absence of complainant, had committed theft in the house of complainant with whom accused was living---As accused was living with complainant, question of application of offence under S.457, P.P.C. against her needed serious consideration---Case of accused, in circumstances, was covered under subsection (2) of S.497, Cr.P.C. needing further inquiry-Alleged recovery stood effected---Offences under Ss.380 & 411, P.P.C. were not covered by prohibitory clause of S.497(1), Cr.P.C.---Accused being a woman and was behind the bars for the last about seven months and was a previous non-convict was entitled to bail, in circumstances.

Muhammad Altaf Hussain Mohal for Petitioner.

Masood Sabir for the State.

2003 PCr.LJ 1733

[Lahore]

Before Mian Muhammad Jahangier, J

MANZOOR HUSSAIN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.219 and Criminal Revision No.109 of 2001, heard on 17th March, 2003.

Penal Code (XLV of 1860)---

----Ss. 302(b)/334---Appreciation of evidence---Common intention Motive behind the occurrence was established by prosecution---Ocular account had been furnished by two injured witnesses and their statements found full corroboration from medical evidence---Said witnesses though were related to the deceased and protracted enmity existed between the parties, but careful examination of their statements had shown them to be confidence-inspiring and that despite absence of any independent witness, ocular account furnished by them could be believed---When occurrence had taken place on road side, it was not essential that people living around would have come out from their houses to see the occurrence---Recovery of crime weapon from accused were additional piece of corroboration---Prosecution could not prove that co-accused at the time of occurrence was minor---Defence version carried no importance---Trial Court after properly appreciating evidence on record, had arrived to a correct conclusion in assessing that accused had shared the common intention with co-accused who was yet an absconder---Judgment passed by Trial Court called for no interference---Appeal against judgment of Trial Court being without merits, was dismissed.

Mujeeb-ur-Rehman for Appellants.

Sardar Muhammad Ishaque Khan and Nadeem Akhtar Bhatti for the State.

Date of hearing: 17th March, 2003.

2003 P Cr. L J 1738

[Lahore]

Before Ch. Iftikhar Hussain, J

GHULAM NABI alias WALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.876/B of 2003, decided on 21st May, 2003.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/148/149---Bail, grant of---Further inquiry---No specific injury to any of deceased persons was attributed to the accused and general role of firing alongwith his co­ accused at deceased persons had been ascribed to, the accused---No recovery, whatsoever, had been effected from the accused---Accused had also been found innocent in three successive investigations---In view of said facts and particularly finding of innocence recorded by three different police Officers in favour of accused, case of accused was covered by subsection (2) of S.497, Cr.P.C. requiring further inquiry into guilt of accused---Accused, who was also previous non-convict was admitted to bail, in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Mian Kamran-Bin-Latif for the State.

2003 PCr.LJ 1740

[Lahore]

Before Falak Sher, CJ. and Ijaz Ahmad Chaudhry, J

PERVAIZ AKHTAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5535/B of 2002, decided on 27th August, 2002.

Criminal Procedure Code (V of 1898)---

---S. 498---Control of Narcotic Substances Act (XXV of 1997), Ss. 6/9(c)---Pre-arrest bail, grant of---Police during investigation had collected material against accused through inculpatory statement made by his own son to the effect that accused was also involved in narcotics business alongwith him---Accused was residing in the same house from where 19 Kgs. of Charas was being taken away and was stored---Accused was previously involved in 18 cases of recovery of narcotics and had failed to show any reason for his false implication in the present case or any mala fides on part of police---No case for bail before arrest was made out on merits---Bail before arrest was meant to protect innocent citizens from false implication by the police with mala fide intention and ulterior motives---Accused having failed to substantiate his plea of false implication, his application for pre-arrest bail was dismissed.

N.A. Butt for Petitioner.

Imtiaz Ahmad for the State.

2003 P Cr. L J 1742

[Lahore]

Before Ch. Iftikhar Hussain, J

Mst. RUKHSANA KAUSAR and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.546/B of 2003, decided on 14th April, 2003.

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 498---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/16---Interim pre-arrest bail, confirmation of---Further inquiry---Allegation against accused persons was that male accused alongwith others had enticed away female accused who was legally wedded wife of complainant and that thereafter they both had indulged in Zina with each other---Female accused present in the Court had stated that she was never married to the complainant and had lawfully married the male accused; she had brought suit for jactitation of marriage against the complainant before Family Court which was pending adjudication and that she had also filed Constitutional petition for quashment of criminal case against her which was pending adjudication--­Female accused had also stated that nobody had enticed or taken her away and that she was living happily with the male accused of her own free-will, and consent---Case being of two Nikahnamas as to which out of those was genuine, was a question which could be more appropriate gone into by the Family Court---Police function was only to collect material/evidence and not to opine about validity or otherwise of Nikahnama---Case of accused persons, in circumstances, was fully covered under subsection (2) of S.497, Cr.P.C. calling for further inquiry into their guilt---Accused had joined investigation---Interim pre­ arrest bail already granted to accused, was confirmed, in circumstances.

Tariq Zulfiqar Ahmad Chaudhary for Petitioners.

Faheem Mumtaz for the State.

Ch. Bashir Ahmad for the Complainant.

2003 P Cr. L J 1745

[Lahore]

Before M.A. Shahid Siddiqui, J

BASHIR AHMED and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2637/B of 2002, decided on 5th November, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of--­Further inquiry---Sister of complainant, according to the F.I.R., who was wife of co-accused had instituted a suit for dissolution of marriage against co-accused who was son of accused and on the date when judgment in said suit was to be announced both accused persons went to the house of complainant and took father of complainant from his house and went to a place and co-accused fired and killed him---Accused were empty-handed and allegation against accused persons was that they collapsed the deceased before he was fired at by the co-accused---Case against accused fell within ambit of S.497(2), Cr.P.C. calling for further inquiry keeping in view role of accused and their plea before police---Accused were allowed bail, in circumstances.

Arif Alvi for Petitioners.

Muhammad Ramzan Sial for the State.

Date of hearing: 5th November, 2002.

2003 P Cr. L J 1747

[Lahore]

before Ch. Iftikhar Hussain, J

Mst. HAJIRAN BIBI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.840/B of 2003, decided on 7th May, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10/ 16---Bail, grant of---Further inquiry---Accused allegedly was enticed away by her co-accused and case against accused was got registered after about 13 days from alleged incident---Accused alongwith her bail application had attached copy of plaint of suit for dissolution of marriage brought by accused against complainant 9 days prior to registration of criminal case against accused---Accused, in the said plaint had averred that complainant had kicked her out from his house about 2-1/2 years prior to institution of suit for dissolution of marriage against complainant---Said suit was pending adjudication before competent Family Court---No direct evidence of Zina was against accused and it was yet to be seen if she could be held liable for alleged offence of Zina---Case of accused, in circumstances, was covered under subsection (2) of S.497, Cr.P.C, calling for further inquiry---Accused was mother of five children---Case for enlargement of accused on bail having been made out, she was granted bail.

Manzoor Ahmad v. The State 2001 PCr.LJ 1419 and Mst. Kausar Parveen alias Kausar Bibi v. The State 2003 PCr.LJ 397 ref.

Mian Fakhar Hayat Wattoo and Mian Fazal Rauf Joya for Petitioner.

Sh. Arshad Ali for the State.

2003 P Cr. L J 1749

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ARSHAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1212 of 2001, heard on 31st January, 2003.

Penal Code (XLV of 1860)----

-----S. 302(c)---Appreciation of evidence---Case was of two versions, one forwarded by prosecution and other given by the accused---Version of accused had been supported by Investigating Officer as well as by sister of accused who appeared before the Trial Court -Investigating Officer had stated in cross-examination that prosecution lead failed to prove votive against accused---Occurrence had taken place in dark hours of the night, and no electric light had been shown at the time of occurrence---Presence of eye-witnesses at the spot seemed to he unnatural---Story given in F.I.R. and presence of eye-witnesses at the spot, was unbelievable and doubtful---When version of prosecution was disbelieved by the Court, then statement of accused should be accepted in totality--trial Court in case had not convicted accused under S.302(b). P.P.C. and taking it a case of grave and sudden provocation, it had convicted him finder S.302(c), P.P.C, but neither the State nor complainant had moved the High Court against acquittal of accused under S.302(b), P.P.C.--­accused had been able to prove his version before Trial Court and same was also accepted by the High Court---Accused though was convicted under S.302(c), P.P.C., but his sentence was reduced from 18 years R.I. to 7 years' R.I. with benefit of S.382-B, Cr.P.C. accordingly.

Mairaj Begum v. Ejaz Anwar and others PLD 1982 SC 294 ref.

Muhammad Ahsan Bhoon for Appellant.

Ch. Muhammad Ahsan for the State.

Date of hearing: 31st January, 2003.

2003 PCr. LJ 1754

[Lahore]

Before Ch. Iftikhar Hussain, J

KHALIL AHMAD and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.938/B of 2003, decided on 22nd May, 2003.

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 161---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Further inquiry---Accused were neither named in the F.I.R. nor put to any identification test---No incriminating article was recovered from them---Only evidence against accused was in the form of statements of three persons recorded under S.161, Cr.P.C. in which it was shown that accused were connected with the crime which was not only heinous in nature, but was also covered under prohibitory clause of S.497(1), Cr.P.C.---Such statements, however, had shown that persons making statements had not seen accused committing the crime---Question whether accused, on basis of such statements alone, could be held liable for alleged offence, required further inquiry---Case against accused falling under subsection (2) of S.497, Cr.P.C. and they being previous non ­convicts were entitled to bail in circumstances.

Ch. Pervez Aftab for Petitioners.

Muhammad Irshad Dogar for the State.

Muhammad Ramzan Khalid Joyia for the Complainant.

2003 P Cr. L J 1756

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MEHAR-UN-NISA---Petitioner

Versus

S.H.O., POLICE STATION CHEHLYAK, DISTRICT MULTAN and another---Respondents

Criminal Miscellaneous No.45-H of 2003, decided on 24th April, 2003.

Criminal Procedure Code (V of 1898)---

----S. 491---Petition for recovery of minor children by their mother--­Petitioner, had submitted that she was married with respondent and three daughters were born in said wedlock---Petitioner had alleged that her husband was in habit of contracting marriages and that she apprehended that her elder daughter would be married in exchange as her husband was interested to marry with a lady---Petitioner further stated that her husband had visited house in the company of dangerous persons and forcibly snatched detenus/her three daughters from her custody and kicked her out of the house after giving her severe beating---Petitioner had claimed that for the sake of her minor daughters she did not leave the house, but he alongwith his companions had forcibly took away detenus/three minor daughters and removed them to some secret place--­Petitioner was mother of detenus/children and all three daughters who were studying in school, had stated in Court that they wanted to live with their mother---Respondent after removal of children from custody of petitioner, had not got them admitted in any school---Petitioner, in circumstances, was entitled to custody of children as she was their real mother and she was ready and willing to reside with the children in her own house, and in that way study of children could be continued--­Custody of minor children, was handed over to petitioner, in circumstances.

PLD 1997 SC 852; 1996 SC MR 268; 1997 MLD 197 and PLJ 2000 Lah. 553 ref.

Muhammad Ramzan Khalid Joyia for Petitioner.

Muhammad Akhtar Khan for Respondent No.2.

Muhammad Riaz Aura for A.-G.

Date of hearing: 24th April, 2003.

2003 P Cr. L J 1760

[Lahore]

Before Ch. Iftikhar Hussain, J

MALKOO---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.797/B of 2003, decided on 7th May, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/148/109---Bail, grant of---Further inquiry---Allegation against accused according to F.I.R., was that he alongwith his co-accused had killed his wife by pressing her throat ---F.I.R. revealed that a bottle of poisonous medicine/drug was lying under the cot of the deceased and signs of such medicines were present on her mouth---Admittedly, no direct evidence was available on police record showing that accused had administered any poisonous medicine or drug to the deceased or anyone had made her to take the same ---Post-mortem report of deceased showed no, mark of fingers on the neck of the deceased---Accused was found innocent during investigation and his discharge report was prepared though it was not agreed to by the Magistrate--All such facts had rendered case of accused as one of further inquiry into his guilt---Case of accused was covered under subsection (2) of S.497, Cr.P.C.---Accused had been stated to be previous non ­convict---Accused was entitled to grant of bail, in circumstances.

Ahmad Nadeem Khan Chandio for Petitioner.

Syed Asad Abbas for the State.

2003 P Cr. L J 1762

[Lahore]

Before Khawaja Muhammad Sharif, J

AURANGZEB alias ZAIBI and another---Appellants

Versus

THE STATE ---Respondent

Criminal Appeal No.696 and Criminal Revisions Nors.641, and 930 of 2001, heard on 31st January, 2003.

Penal Code (XLV of 1860)---

----S. 302/34---Appreciation of evidence---Contradiction appearing with regard to place of injuries on person of deceased in F.I.R. and post­mortem report---Inquest report was recorded later on after getting post­mortem report and alterations with regard to place of injuries on person of deceased were made by Investigating Officer in order to bring it in dine with the statements of witnesses with the post-mortem report---Two persons allegedly had fired at the spot, but no crime empty was recovered---No recovery was effected from co-accused and he was also found innocent by three/four Investigating Agencies---Opinion of police though was not binding on the Court, but due to peculiar circumstances of the case it had become relevant for the acquittal of accused---Case of co-accused was doubtful---Complainant party had been changing its version regarding place of injury on person of deceased before Courts below i.e. Special Court where case was earlier heard and then on remand of the case to Trial Court---Dishonest improvement was made prosecution witness who was real son of deceased in order to statement in line with post-mortem report ---Possibility of being unwitnessed, could not be ruled out- --Prosecution had failed prove motive in the case and in absence of motive, no reason available with accused to commit murder of the deceased---No previous background of enmity existed between the parties and presence of eye­witnesses at the spot being totally doubtful, conviction could not be awarded or maintained on capital charge on that short ground---No other prosecution witness from village was produced by prosecution---Many doubts appearing in the case, benefit of such doubts would go to not as a matter of grace, but as a matter of right---Conviction and sentence awarded to accused by Trial Court, were set aside granting them benefit of doubts.

Sardar Dildar Khan for Appellants.

Miss Nausheen Taskeen for the State.

G.M. Sarwar for the Complainant.

Date of hearing: 31st January, 2003.

2003 P Cr. L J 1767

[Lahore]

Before Ch. Iftikhar Hussain, J

MAQSOOD AHMAD and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.730/B of 2003, decided on 21st May, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324/337-A(i)/337-A(ii)/ 337-F(i)/337-F(vi)/148/149---Bail, grant of---Further inquiry ---Cross ­version from side of accused in respect of injuries to their five persons---Existence of cross-version was borne out from the record as police had opted to challan five persons of the complainant party including the complainant himself---Was yet to be ascertained as to who was aggressor and who was aggressed upon, which had rendered case against accused open to further inquiry as envisaged by subsection (2) of S.497, Cr.P.C.---Accused who were behind the bars for the last about seven months, were previous non-convict were admitted to bail, in circumstances.

Ch. Tariq Mehmood Farrukh for Petitioners.

Rana Muhammad Shakil for the State.

2003 PCr.LJ 1769

[Lahore]

Before Sayed Zahid Hussain, J

AFTAB SAHGAL---Petitioner

Versus

KHURAM---Respondent

Writ Petition No.284 of 1998, decided on 22nd September, 2000.

Criminal Procedure Code (V of 1898)---

----S. 476---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application under S.476, Cr.P.C.---Suit for specific performance, declaration and permanent injunction filed by petitioner against respondent was resisted by respondent and on filing, application by respondent under OVII, Rr.10 & 11, C.P.C., Civil Court returned the plaint holding that suit was not maintainable and Civil Court had no jurisdiction in the matter---Said order of Civil Court had attained finality as the same was, not challenged any further by the petitioner---Petitioner, however, had filed application against respondent under S.476, Cr.P.C.---When Court had no jurisdiction in the matter at all, proceedings taken by it would be regarded as ultra vires, illegal, null and void and provisions of S.476, Cr.P.C. would not be invocable---Respondent, in the present case, from the very initial stage had been objecting to the jurisdiction of Civil Court in the matter which objection ultimately was upheld and plaint was returned for lack of jurisdiction by the Court---Same was wholly an unwarranted exercise under S.476, Cr.P.C. which finally ended in acquittal of respondent.

Ch. Feroze Din v. Dr. K.M. Munir and another 1970 SCMR 10; Abdul Rashid Khan v. Mst. Hassan Jan and 7 others 1999 Cr.LJ 1321; Ghulam Shabbir and 5 others v. The State 1990 PCr.LJ 97; Sumat Prasad v. Emperor AIR 1942 All. 11 and Narain Singh v. Emperor AIR 1948 All 287 ref.

Shahid Maqbool for Petitioner.

Tariq Shamim for Respondent.

Date of hearing: 22nd September, 2000.

2003 P Cr. L J 1773

[Lahore]

Before Ch. Iftikhar Hussain, J

MAZHAR HUSSAIN and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal. Miscellaneous No. 1094/B of 2003, decided on 20th May, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), , Ss.324/334/336/452/148/149---Bail, grant of---Further inquiry---Accused allegedly had caused hatchet blow to injured lady. on her left ankle---Accused did not repeat blow to injured lady and injury attributed to him was on non-vital part of her body---Motive' was not directly relatable to accused ---Co-accused were alleged to have trespassed into house of complainant and had amputed right arm and right leg of victim lady and presence of accused alongwith others at relevant time was not proved---Single injury having been assigned to accused to injured lady and that too on non-vital part of her body, it was yet to be seen if the accused could be held liable for the alleged offence---Case of accused was covered under subsection (2) of S.497, Cr.P.C. requiring further inquiry into his guilt---Accused was behind the bars for the last about one year and was a previous non­ convict---Trial of accused had not commenced---Accused was entitled to bail, in circumstances.

Malik Naseer Ahmad Thaheem for Petitioners.

Atif Sajjad for the State.

2003 P Cr. L J 1776

[Lahore]

Before Ch. Ifiikhar Hussain and Ijaz Ahmad Chaudhry, JJ

ABDUL MUTALIB---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1570/B of 2003, decided on 8th May, 2003.

Criminal Procedure Code (V of 1898)—

----S.497--Control of Narcotic Substances Act (XXV of 1997), S.9(c)--- Bail, grant of---Huge quantity of Charas weighing 6 Kgs. and opium 600 grams had been recovered from the Jeep which was being driven by the accused---Prima facie accused was involved in the case falling within prohibitory clause of S.497(1), Cr.P.C.---Bail application was moved by the accused, when after the submission of report under S.173;.Ci.P.C. in the Court of competent jurisdiction, charge had already been framed and trial had commenced---Trial Court, in circumstances, was not empowered to record statement of co-accused and admit affidavits sworn in favour of accused---Prosecution story revealed that accused alone was apprehended in the Jeep alongwith narcotic substance and no mala fide had been for false implication of accused in the case---No ground for grant of bail having ,been made out, bail application was dismissed in circumstances.

Lt.-Genl. (Rtd.) Fazal Haq v. The State 1989 SCMR 2071 ref.

Ch. Pervaiz Aftab and Ch. Faqir Muhammad for Petitioner.

Muhammad Mumtaz Malik, Special Public Prosecutor, Anti-Narcotic Force for the State.

2003 P Cr. L J 1788

[Lahore]

Before Tanvir Bashir Ansari, J

HABIB ULLAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1292/B of 2002, decided on 13th November 2002.

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

----S. 497---Explosive Substances Act (VI of 1908), Ss.4/5---Juvenile Justice System Ordinance (XXII of 2000), Ss.2(b) & 10---Bail, grant of---Age of accused---Allegation against accused was that two live hand­ grenades were recovered from him---Bail was sought on the ground that accused was less than 18 years of age and fell under definition of "child" under S.2(b) of Juvenile Justice System Ordinance, 2000 and was entitled to bail under S.10 of the said Ordinance---Section 10, proviso of Juvenile Justice System Ordinance, 2000 provided that where a child of age of 15 years or above was arrested, Court could refuse to grant bail if reasonable grounds existed to believe that such child was involved in an offence which in its opinion was serious, heinous, gruesome, brutal or was sensational in character---Accused was almost 17 years of age and he had to be overpowered by police in order to recover two live hand­ grenades---Contention that offence of accused did not fall under S.4 of Explosive Substances Act, 1908 was not prima facie correct---Accused having failed to make out case for grant of, bail his bail application was dismissed.

Mansoor Ahmad and others v. The State 2002 PCr.LJ 657 and Raja Amanullah and another v. The State 2002 MLD 1817 ref.

Sanaullah Zahid for Petitioner.

Date of hearing: 13th November, 2002.

2003 P Cr. L J 1808

[Lahore]

Before Khawaja Muhammad Sharif and Bashir A. Mujahid, JJ

SHAKIL AHMAD and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.681 and Murder Reference No.59/T of 2002, decided on 17th February, 2003.

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

----Ss. 7(a), 7(b) & 7(c)---Appreciation of evidence---F.I.R. was promptly lodged---All four prosecution-witnesses including two injured prosecution witnesses had fully supported the prosecution case before the Trial Court---Despite lengthy cross-examination, defence had failed to create any dent in the story of prosecution---No previous background of enmity between the parties existed and false implication of accused persons was not possible---Record had proved that none of the witnesses had any enmity whatsoever against any of the accused---All injuries on the persons of injured prosecution witnesses according to opinion of Doctor, were with fire-arms ---Seventeen injuries on persons of five deceased had shown that no exaggeration was made in that respect as number of injuries coincided with number of accused---One of accused persons remained absconded for many months and other accused was also arrested after many months of occurrence and he got recovered kalashnikov and also live bullets of kalashnikov, pistol and other material---Story of prosecution seemed to be more plausible and convincing and version introduced by one of the accused persons, was an afterthought just in order to make a case of grave and sudden provocation and to save lives of his co-accused---Crime empties matched with kalashnikov recovered on pointation of one of the accused persons and there was no possibility of fabrication of report of Fire-Arms Expert--­All accused persons were identified during identification parade--­Prosecution had successfully proved its case beyond any shadow of doubt against accused persons---Conviction and sentence awarded by Trial Court against accused persons, were maintained in toto---Death sentence awarded to them by Trial Court was confirmed and murder reference was answered in affirmative.

Khurshid Ahmad Sodhi for Appellants.

Muhammad Jahangir Wahla, A.A.-G. with Mirza Abdullah Baig for the State.

Date of hearing: 10th February, 2003.

2003 P Cr. L J 1826

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD RAFIQUE---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1779 of 2002, heard on 12th November, 2002.

Penal Code (XLV of 1860)---

----Ss. 302/109/34---Appreciation of evidence---Trial Court disbelieved statements of prosecution witnesses qua co-accused, but convicted the accused mainly on ground that recovery evidence i.e. blood-stained Ramba' at the instance of accused during investigation was proved---SaidRamba' was produced by accused after almost three months of the occurrence---Normally after such a long time blood stains on offensive weapon automatically disappear- --Report of Chemical Examiner in that respect was not free from doubt---Prosecution witnesses at the time of occurrence had stated that they were ploughing land and deceased was supervising them while standing on `Watt', but site plans prepared by Investigating Officer as well as by draftsman, had revealed that occurrence had taken place in almost middle of the field---Site plans did not show the presence of eye-witnesses, signs of ploughing and presence of tractor---Record had established that neither place of occurrence was owned nor same was in physical possession of the complainant at the time of occurrence---Inquest report prepared by the Investigating Officer was also silent about the presence of both the witnesses who claimed to have seen the occurrence---Contradiction existed in ocular account and Medico-legal Report with regard to number of injuries on person of deceased---Such circumstances were sufficient to doubt the presence of alleged eye-witnesses at the time of occurrence---Statements of prosecution witnesses who had already been disbelieved by Trial Court qua co-accused, would be of no value, in absence of any independent corroborative piece of evidence---Conviction and sentence awarded to accused by Trial Court, were not sustainable in circumstances and were set aside and. he was acquitted of the charge.

Hasnat Ahmad Khan and Malik Muhammad Azam for Appellant.

Sardar Khurram Lateef Khan Khosa for the Complainant.

Najum-ul-Hassan Gill for the State.

Date of hearing: 12th November, 2002.

2003 P Cr. L J 1835

[Lahore]

Before Khawaja Muhammad Sharif, J

MUSHTAQ AHMAD alias PAPPU and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.785 and 763 of 1997, decided on 14th May, 2002.

Penal Code (XLV of 1860)---

----Ss. 392/411/457---Appreciation of evidence---Both complainant and his wife had identified the accused in identification parade which was held in jail and also before the Trial Court---Recovery of golden ornaments and household were effected from the accused persons and same was verified by the complainant and his wife---Ocular account was fully corroborated by recovery effected from the accused persons---No previous background of enmity existed between the parties--No possibility of false implication of accused existed---Contention of accused that they had been made scapegoat was repelled---No evidence was on record which could show that eye-witnesses had deposed falsely against the accused---Prosecution had proved its case against accused beyond any shadow of doubt---No mitigating circumstance was present in the case--­Conviction and sentence recorded by Trial Court against accused were maintained.

Sadaqat Ali for Appellants.

M. Jahangir Wahla, A.A.-G. for the State.

Abdullah Baig for the Complainant.

Date of hearing: 14th May, 2002.

2003 P Cr. L J 1839

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD PERVAIZ and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1271/B of 2003, decided on 26th June, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---penal Code (XLV of 1860), Ss.399/402---Bail grant of--­Further inquiry---Allegation contained in F.I.R. against accused persons was that they assembled at a place while armed with lethal weapons in ­order to commit dacoity---Said allegation, even if, could be taken as true, fell under S.402, P.P.C. and offence under S.402, P.P.C. was not covered by prohibitory clause of S.497(1), Cr.P.C.---Question of application of offence under S.399, P.P.C. in the case needed consideration---Case against accused was covered under subsection (2) of S.497, Cr.P.C. requiring further inquiry into their guilt---Accused were stated to be previous non-convicts---Accused were entitled to bail, in circumstances.

Muhammad Arif Alvi for Petitioners

Amjad Mumtaz for the State.

2003 P Cr. L J 1845

[Lahore]

Before Ch. Iftikhar Hussain, J

SHAHID alias SHELLO alias IMRAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1322/B of 2003; decided on 1st July, 2003.

Criminal Procedure Code (V of 1898)---

---S.497(2)--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11---Bail, grant of---Further inquiry---Allegation against accused was that he abducted 14 years old daughter of the complainant for Zina---Alleged abductee was not recovered from the accused---Girl in her statement made under S.164, Cr.P.C. did not level any allegation of Zina against the accused, she alone was apprehended by the Railway Police at Railway Station and lodged her in Trust there and thereafter her paternal aunt had brought her back from-there---was yet to be seen that if accused could be held to be liable for alleged offence or not---Case of accused, in, circumstances was covered under subsection (2) of S.497, Cr.P.C. calling for further inquiry into his guilt---Accused was stated to be previous non-convict---Accused remained absconder for quite some time---Case of accused having been found to be one of further inquiry into his guilt, his alleged abscondence would not come in his way to grant of bail when his case lad been found to be one for bail---Accused was admitted to bail, in circumstances.

Ch. Faqir Muhammad for Petitioner.

Mehr Khalil-ur-Rehman for the State.

2003 P Cr. L J 1866

[Lahore]

Before Ch. Iftikhar Hussain, J

NAVEED BAIG---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.733/B of 2003, decided on 20th May, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/201/34---Bail, grant of--­Accused alongwith his co-accused was tried for offence under S.365-A, P.P.C. by Special Court, constituted under Suppression of Terrorist Activities Act, 1975 and was sentenced to imprisonment for life---Special Court in its judgment of conviction and sentence of accused had observed that separate challan against accused in the offence under Ss.302/201/34, P.P.C. could be submitted before competent Court and in consequence of the same accused presently was facing trial in the case under Ss.302/201/34, P.P.C.---Accused who was arrested in the present case in 1991, since then had continuously been detained---Period of detention of accused as under trial prisoner in the offence under Ss.302/201/34, P.P.C. was about 13 years---Accused, due to such long detention and that conclusion of his trial in near future being not in sight, was entitled to relief of bail---Accused was admitted to bail, in circumstances.

Muhammad Feroze Ahmad Khan and Sheikh Dilawar Hussain for Petitioner.

Ch. Ghulam Muhammad for the State

Syed Muzammal Hussain for the Complainant

2003 P Cr. L J 1870

[Lahore]

Before Ch. Iftikhar Hussain, J

NAZIR AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.330/B of 2003, decided on 25th June, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.420/467/468/471--­Prevention of Corruption Act (II of 1947), S.5(2)---Bail, grant of--­Further inquiry ---F.I.R. showed the allegation against accused that he alongwith his co-accused in connivance with concerned staff of Record Room of D.C. Office, had tampered record and entered the name of a wrong person therein---Said record was in the custody of the Officials of Record Room and date and time of such tampering with that record had not been mentioned in the F.I.R.---Alleged tampered record being in custody of Staff of Record Room, guilt of accused in the matter needed serious consideration---Case of accused required further inquiry into his guilt and was covered under subsection (2) of S.497, Cr.P.C.---Alleged abscondence of the accused, in circumstances, would not come in his way to the grant of bail to him---Accused was behind the bars for the last about eight months and was previous non-convict---Case for enlargement of bail of accused having been made out, he was admitted to bail.

Muhammad Ghias-ul-Haq Sheikh for Petitioner:

Sheikh Arshad Ali for the State.

Ch. Muhammad Ashraf Sindhu for the Complainant.

2003 P Cr. L J 1875

[Lahore]

Before Ch. Iftikhar Hussain, J

ZAFAR ALI ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1023/B of 2003, decided on- 19th June, 2003.

Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/337-A(i)(ii)(iii)/ 337-D/337-F(i)(v)/324/452---Bail, grant of---Further inquiry---Accused had allegedly caused injury on complainant on left side of his head and did not repeat the same---Accused had not been attributed injury to the deceased---Cross-version from side of accused had been brought .forth, but same did not find favour with the police---Question of vicarious liability of accused for Qatl-e-Amd of deceased, was to be seen at the time of trial---Was yet to be seen as to who was aggressor and who was aggressed upon---Case against accused called for further inquiry into his (2) of S.497, Cr.P.C.---Accused according to his School Leaving Certificate, was less than 13 years of age at the time of incident---First proviso to S.497(1), Cr.P.C. was attracted to the case of accused---Accused was previous non-convict, he was entitled to bail, in circumstances.

Abid Hussain Bhuttah for Petitioner.

Sh. Arshad Ali for the State.

Muhammad Arif Alvi for the Complainant.

2003 P Cr. L J 1881

[Lahore]

Before Ch. Iftikhar Hussain and Ijaz Ahmad Chaudhry, JJ

HAJI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.126, Murder Reference No.166 and Criminal Revision No. 81 of 1999, heard on 13th May, 2003.

Penal Code (XLV of 1860)---

----Ss.302(a)---Appreciation of evidence---Complainant and other prosecution witness who had furnished ocular account, though were related inter se and to the deceased, but they had no enmity with accused prior to the occurrence---Nothing was in their evidence to show that they in any way were inimical towards accused---Mere relationship inter se or with deceased was no ground to discard their testimony---Said witnesses being independent, were reliable---Witnesses were consistent to each' other with regard to all material particulars of prosecution i.e. the date, time, venue and mode of occurrence and no major discrepancy was found in their testimony---Occurrence had taken place at day time and prosecution witnesses had given explanation of their presence at the spot at the relevant time---Presence of prosecution witnesses at the spot was probable---Contention of accused that occurrence was unwitnessed, was repelled---When two eye-witnesses had lands on lease adjacent to that of deceased and their evidence had inspired confidence, non-production of any other witness from that place, was of no adverse or material effect to prosecution case---One of prosecution witnesses was not produced by the prosecution in views of the fact that he was nephew of acquitted accused---Non-production of said witness by prosecution as having been won-over by accused, was not abnormal---Medical evidence had fully corroborated ocular account---Motive part of story furnished by prosecution witnesses also inspired confidence---Recovery of crime weapon from the accused and empties from the spot was also a strong circumstance to corroborate the ocular account---Report of. Forensic Science Laboratory had also confirmed that gun recovered from the accused was used and crime empties were fired from the same---Report of Chemical Examiner and that of Serologist had also confirmed the ocular evidence---Prosecution, in circumstances, had fully proved charge of Qatl-e-Amd of deceased against accused beyond any shadow of reasonable doubt---Accused having repeated shots with fire-arm 'to the deceased, and said shots having hit vital parts of body of deceased, accused deserved no lesser punishment than death---Sentence of death awarded to the accused being adequate and not at all harsh, same was confirmed---Conviction of accused under S.302(a), P.P.C., however was not proper as proof required for the same was not available---Conviction of accused under S.302(a), P.P.C., was altered to one under S.302(b), P.P.C., in circumstances.

Sardar Balakh Sher Khan Khosa and Khan Atta Ullah Khan Tareen for Appellant (in Criminal Appeal No.126 of 1999) and for Respondent No. 1 in (Criminal Revision No. 81 of 1999).

Sahibzada Farooq Ali Khan for the Complainant.

Mehr Muhammad Saleem Akhtar for the State.

Date of hearing: 13th May, 2003.

2003 P Cr. L J 1894

[Lahore]

Before Ijaz Ahmad Chaudhry, J

ATTA MUHAMMAD ---Petitioner

Versus

THE STATE and 5 others---Respondents

Criminal Revision No. 105 of 2003, decided on 8th May, 2003.

Criminal Procedure Code (V of 1898)---

----Ss. 439(5), 561-A, 417(2-A) & 403(1)---Penal Code (XLV of 1860), Ss.302/148/149/109---Acquittal of accused---Petitioner/complainant had sought setting aside the order passed by Trial Court whereby in view of acquittal order passed in private complaint, the challan case regarding the same occurrence had been consigned to record declaring that no further proceedings were required therein---Accused persons in the case had already faced trial for murder of deceased in the private complaint filed by the complainant---Witnesses examined during the investigation of police case got recorded on statement of complainant, were also examined and recorded as Court witnesses only; where after accused nominated in private complaint challaned in police case, were acquitted--­Since challan case related to the same set of accused/witnesses including private complaint, commencement of trial in police case would definitely be hit by principle of double jeopardy---No illegality existed in order of acquittal of accused passed by Trial Court in accordance with law---Revision against said acquittal order in view of provisions of subsection (2-A) of S.417, Cr.P.C., was not maintainable under S.439(5), Cr.P.C.

Noor Elahi's case PLD 1966 SC 708 and Syed Muhammad Hussain Shah and 5 others v. Abdul Hamid and others 1981 SCMR 361 ref.

Sardar Manzoor Ahmad Khan for Petitioner.

2003 P Cr. L J 1898

[Lahore]

Before Ch. Iftikhar Hussain, J

ALTAF HUSSAIN ---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No. 116 of 2003, decided on 21st May, 2003.

Penal Code (XLV of 1860)----

----Ss. 302/109---Juvenile Justice System Ordinance (XXII of 200x), S.2(b)---Determination of age of accused---Police in an earlier case registered against the accused mentioned the age of accused as 15/16 years at the time of alleged occurrence---Complainant filed application before Trial Court for determination of age of accused---Complainant with his said application had appended copy of birth entry in support of his assertion that accused was an adult and not "child" within meaning assigned to the word in S.2(b), Juvenile Justice System Ordinance, 2000---Accused who relied upon his Matriculation Certificate issued by the Board of Intermediate and Secondary Education concerned, had prayed that for determination of his age Medical Board be constituted--­Trial Court accepted application of complainant and observed that accused was more than 18 years of age at the time of alleged incident--- Validity---Mention of age of accused by police was hardly of any material consequence---Indication of age by police normally was on saying of the accused which often was approximately mentioned from external appearance of accused which normally was not exact age of the accused-­-Birth entry in respect of age of accused which was incorporated in relevant record of Union Council concerned about twenty years ago, was most authentic and reliable proof of the age of accused, especially when no convincing reason had been advanced to show that such entry was forged or fabricated one---Was quite natural that twenty years ago when said entry was incorporated in the relevant record, nobody could ever know that same could be used for any particular purpose---Trial Court on basis of birth entry had rightly determined that accused was more than 18 years of age at the time of alleged incident---In absence of any illegality `or impropriety, order of Trial Court, could not be interfered with in revision.

Hassan Zafar v. The State 2001 PCr.LJ 1939; Nazir Ahmad alias Kala v. District and Sessions Judge, Kasur and 2 others PLJ 2002 Cr.C. (Lahore) 195; Muhammad Hayat. v. The State and another 2002 YLR 711; Muhammad Akram v. Muhammad Haleem 2002 PCr.LJ 633 and Muhammad Hayat v. The State and another 2002 YLR 711 ref.

Aurangzaib Alamgeer for Petitioner.

M. Sarwar Bhatti, A.A.-G. for the State.

Sheikh Muhammad Farooq and Mehr Muhammad Saleem Akhtar for the Complainant.

Date of hearing: 20th May, 2003.

2003 P Cr. L J 1906

[Lahore]

Before Ch. Iftikhar Hussain, J

Mst. FATIMA ---Petitioner

versus

NAWAB DIN and 2 others---Respondents

Criminal Revision No.453 of 2002, decided on 8th May, 2003.

Criminal Procedure Code (V of 1898)---

----Ss. 417, 439(5) & 345---Penal Code (XLV of 1860), S.302--­Acquittal of accused on basis of compromise---Application for recalling the order of acquittal---On application of father of deceased for permitting him to compound the case, Trial Court after recording statement of applicant/father of deceased that he had forgiven accused in the name of Allah, accepted compromise and proceeded 'to acquit the accused---Petitioner who was mother of deceased moved an application for recalling the judgment of acquittal on ground that she had been kept out of the compromise while she was not prepared to forgive the accused­--Said application was dismissed by Trial Court with observation that same was not competent as appeal under S.417, Cr.P.C. lay to High Court against the order/judgment of acquittal---Validity---Accused having been acquitted, in view of statement regarding compromise, appeal would lay to High Court against judgment of acquittal passed by Trial Court under S.417, Cr.P.C. and application filed by petitioner for recalling of judgment of acquittal was not competent before Trial Court as Trial Court could not review or recall its judgment---Petitioner being aggrieved person could have appealed against the judgment of acquittal of accused and proceedings in revision could not be initiated at the instance of petitioner/mother of deceased in view of S.439(5), Cr.P.C.

Muhammad Yaqoob v. The State 1997 PCr.LJ 1979 ref.

Syed Shahbaz Ali Rizvi for Petitioner.

Khalid Ashraf Khan for Respondent No. 1

Muhammad Sabir for Respondent No.2.

Nemo for Respondent No.3.

2003 P Cr. L J 1912

[Lahore]

Before Ch. Iftikhar Hussain and M.A. Shahid Siddiqui, JJ

TAHIR NADEEM‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.317 of 2002, heard on 10th June, 2003.

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

‑‑‑‑Arts. 3/4‑‑‑Control of Narcotic Substances Act (XXV of 1997), S.9(c)‑‑‑Appreciation of evidence‑‑‑Alleged narcotic was not recovered from the possession of accused as according to the Investigating Officer, accused ran away after throwing away black colour shopper containing alleged narcotic and was, not apprehended at the spot‑‑‑Prosecution witnesses had admitted that it was dark at the time of alleged occurrence and that they could not identify the accused when he ran away from the spot‑‑‑Police Officers who were members of the raiding party had stated that they did not know the accused personally‑‑‑identity of accused, in such situation was not possible‑‑‑Question of identity of accused, in circumstances, remaining not above doubt‑‑‑Such fact, alone would entitle the accused to be acquitted giving him the benefit of doubt‑‑‑Prosecution having failed to prove its case against accused beyond any shadow of doubt, conviction and sentence awarded to accused by Trial Court were set aside and he was acquitted of the charge.

Ameen‑ud‑Din Khan for Appellant.

Sheikh Muhammad Rahim for the State.

Date of hearing: 10th June, 2003.

2003 P Cr. L J 1918

[Lahore]

Before Ch. Iftikhar Hussain and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD IQBAL alias BALA ---Petitioner

versus

THE STATE---Respondent

Criminal Revision No. 155 of 2003, decided on 22nd May, 2003

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

----Arts. 3/4---Criminal Procedure Code (V of 1898), Ss.340(2), 342 & 439--- Accused on the date when case was fixed for final arguments, made application to the Trial Court for de-sealing of parcel of heroin and sending same to Chemical Examiner for analysis and his report- --Accused also requested for permitting time to make statement on oath as required under S.340(2),Cr.P.C.---Said application having been dismissed by Trial Court, accused filed revision against the said order ---Validity—­Application for de-sealing the parcel of heroin and sending sample from the same to Expert for analysis and his report had rightly been refused by Trial Court on account of the fact that prosecution evidence had stood concluded in his case and that his examination under S.342, Cr.P.C. was recorded--Accused not only had denied to produce any evidence in his defence, but had also denied to depose on oath as required under S.340(2), Cr.P.C.---Accused right from the commencement of the trial against him till his examination under S.342, Cr.P.C. had not at all made any such request while he could easily do so if he genuinely had intended it---At very belated stage when case was fixed for final arguments, such an effort on part of accused was an afterthought perhaps to prolong the conclusion of trial--Request of accused for permitting him to make statement on oath under S.340(2), Cr.P.C. had also rightly been declined by Trial Court ,because when accused was examined under 5.342, Cr.P.C., he had denied to do so---Law had prescribed a procedure for doing an act and also a stage for the same---Accused could not be allowed to do an act at his own whims, as to when and where he would like it particularly when he lead denied to do so at the relevant time---Orders of Trial Court not suffering from any infirmity or impropriety, could not be interfered with in revision.

Ch. Muhammad Ashfaq for Petitioner.

2003 P Cr. L J 1922

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD RAMZAN‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1265/B of 2003, decided on 12th June, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10(2)/11‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Allegation against accused was that he alongwith his co‑accused had abducted daughter of complainant aged 17/18 years for Zina‑‑‑Alleged abductee had been arrayed as an accused in the case being consenting party to Zina‑‑‑Alleged abductee, in her application for bail, had pleaded that she was legally wedded wife of the accused and her Nikah with her alleged husband had never been performed‑‑‑Lady had also mentioned in her bail application that she had filed suit for jactitation of marriage against her alleged husband which was pending before competent Family Court‑‑­Alleged abductee was granted bail by Trial Court with the observation that in view of two versions her case certainly needed further inquiry into her guilt‑‑‑Alleged abductee also had made statement before Superintendent of Darul Aman to the effect that she was legally wedded wife of accused and disowned her Nikah with her alleged husband‑‑‑Was yet to be seed; as to whether accused could be held liable for alleged forcible abduction or enticement or Zina‑bil‑Raza with her in view of the plea of accused of valid marriage‑‑‑Case of accused was covered under subsection (2) of S.497, Cr.P.C. calling for further inquiry into his guilt‑‑‑Accused was stated to be previous non‑convict and was entitled to bail, in circumstances.

Mian Muhammad Akram for Petitioner.

Syed Anwar‑ul‑Haq Shah for the State.

2003 P Cr. L J 1944

[Lahore]

Before M.A. Shahid Siddiqui, J

Haji ABDUL GHAFOOR KHAN and 2 others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2178/B of 2002, decided on 18th September, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/324/34‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Case was of two versions in which different Police Officers had given different findings‑‑‑Version of accused was brought on record on the very first day and was accepted not only by local police, but also by other Police Officers as well which could not, in circumstances, be ignored‑‑‑One of accused persons had not been ascribed any role while other two accused persons had not caused any injury to the deceased‑‑‑Case against accused being of further inquiry under subsection (2) of S.497, Cr.P.C., they were admitted to bail.

Abdul Aziz Khan Niazi for Petitioners.

Sheikh Muhammad Farooq for the Complainant.

Saleem Shakoor for the State.

Date of hearing: 18th September, 2002.

2003 P Cr. L J 1957

[Lahore]

Before Ch. Iftikhar Hussain, J

ANSAR ALI ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.936/B of 2003, decided on 18th June, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑‑Further inquiry ‑‑‑F.I.R. revealed that accused had fired straight shot with .222 bore rifle at deceased hitting on his upper side of knee of left thigh while in private complaint in respect of same occurrence, it was not so mentioned‑‑‑Conflict, in circumstances, existed in the narration of F.I.R, and story in private complaint with regard to role of accused in the occurrence which had necessitated further inquiry into the guilt of accused‑‑‑Case of accused, in circumstances, was covered under subsection (2) of S.497, Cr.P.C.‑‑‑Accused was behind the bars for the last about one year and his trial had not commenced so far‑‑‑Accused was stated to be previous non‑convict‑‑‑Accused was entitled to grant of bail.

Arshad Ali Chowhan for Petitioner.

Sh. Nasim Rashid for the State.

Sardar Muhammad Irshad Dogar for the Complainant.

2003 P Cr. L J 1968

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD IBRAHIM ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1279/B of 2003, decided on 30th June, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/16‑‑‑Penal Code (XLV of 1860), Ss.420/468/471‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Allegation against accused was that he had witnessed Nikah solemnized between alleged abductee who was wife of complainant and co‑accused‑‑‑Report submitted against accused, co­ accused, alleged abductee and another, had shown that alleged abductee was arrayed as an accused in the case ‑‑‑F.I.R. also showed that during investigation, it had been found that accused had no connection with enticement or taking away of alleged abductee or of Zina with her‑‑­F.I.R. revealed further that accused was simply a witness of Nikah of co ­accused with alleged abductee‑‑‑Accused with his application for bail had filed certified copy of suit for jactitation of marriage brought by alleged abductee against complainant and according to the same complainant had divorced the alleged abductee in writing and thereafter she had entered into a valid Nikah with co‑accused‑‑‑Said suit was pending adjudication before Family Court‑‑‑Question of subsistence or otherwise of marriage of alleged abductee with complainant was still to be determined‑-‑Case against accused, in circumstance, fell within purview of further inquiry as envisaged by subsection (2) of S.497, Cr.P.C.‑‑‑Accused was stated to be previous non‑convict and. was entitled to bail, in circumstances.

Ch. Muhammad Anwar‑ul‑Haq for Petitioner.

Sh. Arshad Ali for the State.

Nishat Ahmad Siddiqui for the Complainant

2003 P Cr. L J 1973

[Lahore]

Before Ch. Iftikhar Hussain, J

Mrs. HAMIDA ALTAF‑‑‑Appellant

Versus

LIAQAT ALI and 2 others‑‑‑Respondents

Criminal Appeal No.291 of 2003, decided on 22nd May, 2003.

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

‑‑‑‑Ss. 417(2‑A) & 249‑A‑‑‑Penal Code (XLV of 1860), Ss.408, 511 & 109‑‑‑Appeal against acquittal‑‑‑Allegation against accused was that he got prepared duplicate keys of lockers and almirahs of the college and gave the same to watchman of the College to bring out the cheque books and other documents from the same and hand them over to him‑‑‑Said keys were neither used nor anything was brought out of the lockers and almirahs‑‑‑Offence of attempt to commit the crime as envisaged by S.511, P.P.C. was not complete, so as to constitute the offence as mentioned in S.511, P.P.C.‑‑Something constructive towards accomplishment of the design should have been done‑‑‑Accused, in the present case, had allegedly handed over the keys of lockers and almirahs to watchman who did not commit any further act in that direction‑‑‑Mere intention on part of accused though could be attributed to him but not an attempt to commit offence so as to make him liable for the abetment punishable under S.109, P.P.C.‑‑‑Accused could also not be held liable for offence under S.408, P.P.C. as he being clerk or servant of the College was not entrusted with any property in his capacity as clerk and as such no question of his having committed or attempted to commit criminal breach of trust in respect of such property could arise‑‑‑Accused thus, could not be convicted for such an offence‑‑‑Even otherwise two main prosecution witnesses did not support prosecution version and they were declared hostile‑‑‑Accused could not be convicted on evidence of third witness alone‑‑‑No possibility of conviction existed even if remaining prosecution evidence could be brought on record‑‑‑Trial Court, in circumstances, rightly invoked its jurisdiction under S.249‑A, Cr.P.C. in acquitting the accused‑‑‑Judgment of Trial Court neither being perverse nor arbitrary, appeal against such judgment, was dismissed.

(b) Administration of justice‑‑‑

‑‑‑‑Even one ground, cogent and recognized in law could furnish base for an order of Court.

Rana Abdul Aziz Khan for Appellant.

2003 P Cr. L J 1977

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ISLAM‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.274 and Criminal Revision No. 168 of 2002, heard on 2nd June, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑ Two eye‑witnesses had improved their statements‑‑‑Occurrence had taken place in dark hours of the night‑‑‑Had the eye‑witnesses been present at the spot, they must have stated the correct number of injuries on the person of deceased, but that had not been done in the case‑‑‑Three crime‑empties were recovered from the spot, but none of those matched with rifle recovered on the pointation of accused, which was also a circumstance which went in favour of the accused‑‑‑Motive was not alleged to the accused, but was alleged to the person other than him ‑‑‑Co‑accused had been acquitted by Trial Court on the same evidence and appeal against his acquittal was dismissed by High Court‑‑‑Neither the pillow which was found stained with blood nor cot on which deceased was lying were taken into possession by Investigating Officer‑‑‑Even Doctor during cross‑examination had admitted that alleged injury could not be caused while lying straight‑‑‑At time of post­ mortem examination, when papers were produced by police, F.I.R. was not produced‑‑‑Presence of eye‑witnesses had not been mentioned in the site plan‑‑‑Report of Fire Arm Expert was negative‑‑‑Case against accused being highly doubtful, conviction and sentence awarded to accused by Trial Court were set aside and accused was ordered to he released.

Sardar Shaukat Ali for Appellant.

Saeed Ahmad Malik for the State.

Date of hearing: 2nd June, 2003.

2003 P Cr. L J 1981

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD ASHFAQ‑‑‑Petitioner

Versus

S.H.O., POLICE STATION QUTABPUR and others‑‑‑Respondents

Writ Petition No.768/Q of 2003, decided on 12th June, 2003.

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

‑‑‑--Ss. 10(3)/11‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Quashing of F.I.R. ‑‑‑Complainant in her F.I.R. had alleged that accused had abducted her forcibly and under duress had obtained her thumb‑impression on some papers and had got favourable statement from her in the Court‑‑‑Accused had claimed her to be his legally‑wedded wife and in support of the same had placed reliance on Nikahnama which was disowned by complainant‑‑‑Investigation in the case was in progress and Investigating Officer as yet had not reached to any conclusion qua the truth or falsity of allegation leveled by complainant against the accused in F.I.R.‑‑‑Question that allegation contained in the F.I.R. was not true or that same was based on mala fide could not possibly be determined‑‑‑Resolution of such question required probe and evidence‑‑‑Constitutional petition filed by accused for quashing of F.I.R. having no merits, was dismissed, in circumstances.

Ch. Muhammad Ali for Petitioner

Zafar Khan Magsi for Respondent No.2

2003 P Cr. L J 1984

[Lahore]

Before Khawaja Muhammad Sharif, J

MOAZZAM AMIN and others‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 184 and 209 of 2002, heard on 19th June, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Eight persons including two accused persons were named in the F.I.R.‑‑‑Out of said eight persons, one was still proclaimed offender and five others were acquitted of the charge by Trial Court‑‑‑Proclaimed offender was attributed role of Lalkara while acquitted accused were charged with offence of abetment‑‑­No appeal against acquittal of said accused was filed either by the State or the complainant‑‑‑Occurrence had taken place when it was dark and prosecution could not prove that electric bulb existed at the time of occurrence‑‑‑Possibility existed that the electric bulb was shown in order to corroborate version of complainant given in the written complaint‑‑­Contradiction with regard to time of occurrence in ocular and medical evidence existed‑‑‑Prosecution case was that 5/6 shots were fired by accused persons which hit the deceased, but State Counsel did not exceed the number of shots from three‑‑‑Complainant had also stated before Trial Court that some of the bullets hit the wall of Haveli, but no bullet mark was either shown in the first inspection note of site or in site plan‑‑­Accused remained on physical remand, but nothing incriminating weapon was recovered from them and they were also found innocent by police and were placed in Column No.2 of the report under S.173, Cr.P.C.‑‑­Opinion of police though was not binding upon the Court, but in the peculiar facts and circumstances of case, it was a relevant fact‑‑‑No motive whatsoever having been attributed to accused persons, there was no reason for them to participate in the occurrence‑‑‑Only fault of accused was that they were related to acquitted accused against whom motive was laid‑‑‑Five co‑accused had been acquitted on the same set of evidence‑‑‑One pair of shoes was recovered by police from place of occurrence, but it was never investigated as to whom the same belonged‑‑‑Case of prosecution to the extent of accused persons was of doubtful nature and accused were acquitted giving them benefit of said doubt‑‑‑Conviction and sentence awarded to accused by Trial Court were set aside and they were ordered to be released.

Muhammad Farooq Bedar for Appellants.

Mujtaba Jamal for the State.

Date of hearing: 19th June, 2003.

2003 P Cr. L J 1990

[Lahore]

Before Bashir A. Mujahid, J

IJAZ BAIG‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3257/B of 2003, decided on 25th June, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.337‑F(v)/148/149‑‑‑Bail, grant of‑‑‑Accused had caused incised wound injury measuring 8 c.m. x 3 c.m. on the right leg of the complainant and bone was exposed ‑‑‑Medico­ legal report showed that there was corresponding cut on the Shalwar of victim‑‑‑Accused had been attributed specific injury and weapon of offence was also recovered from his possession‑‑‑Offence against accused though did not fall under prohibitory clause of S.497, Cr.P.C. but he being involved in a heinous offence, could not claim bail as a matter of right‑‑‑Movement and capacity to use right leg of complainant had also been curtailed‑‑‑Accused, in circumstance, was not entitled for concession of bail.

Tariq Bashir and 5 others v. The State and others PLD 1995 SC 34 and Muhammad Siddique v. Imtiaz Begum 2002 SCMR 442 ref.

Saleem Khan Chaichee for Petitioner.

Saif Ullah Khalid for the State.

2003 P Cr. L J 1991

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD IQBAL‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1124/B of 2003, decided on 17th June, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12‑‑‑Penal Code (XLV of 1860), S.377‑‑‑Juvenile Justice System Ordinance (XXII of 2000), S.10(7‑b)‑‑‑Bail, grant of‑‑‑Allegation against the accused was that he subjected victim boy to sodomy in his shop when victim boy went to grocery shop of accused to purchase some thing‑‑‑School Leaving Certificate showed that the age of accused at the time of alleged occurrence was about fifteen years, one month and twenty‑one days and as per Medico‑legal Report he was aged about sixteen years‑‑‑Police record showed the age of accused as about 17/18 years, which could be a tentative assessment of his age and not exact one while as compared to the same, his School Leaving Certificate and Medico‑legal Report were more preferable as regards the question of age of accused‑‑‑Question of application of S.12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 against the accused needed serious consideration as he neither had been shown to have kidnapped the victim boy nor taken him away anywhere for the purpose of committing sodomy upon him‑‑‑Offence under S.377, P.P.C. was punishable with imprisonment for life or a term which would not be less than two years nor more than ten years and would also be liable to fine‑‑‑Accused had continuously been detained for a period exceeding six months and trial had not commenced‑‑‑Case of accused, if at all prosecution allegations against him could be taken as true, was covered under S.377, P. P. C. and not under S.12 of Offence of Zina (Enforcement of Hudood) Ordinance. 1979 ‑‑‑Accused was entitled to be released on bail in view of subsection 7(b) of S.10 of Juvenile Justice System Ordinance, 2000‑‑­Accused was stated to be previous non‑convict.

Muhammad Tariq Nadeem for Petitioner.

Muhammad Rafique Rajput for the State.

2003 P Cr. L J 1994

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD NUSRULLAH‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1081/B of 2003, decided on 20th May, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10‑‑‑Bail, grant of‑‑‑Accused was found indulging in commission of Zina with co‑accused in his house in the night time‑‑‑No specific mala fides had been alleged against the witnesses for their falsely involving accused in the case‑‑‑Commission of intercourse between men and women not united in marriage was an offence and to prove the same, witnesses would be required who would have seen the accused in such a position with their own eyes or accused could confess their guilt‑‑­Commission of Zina was an offence not only against the society but also against Hudood Allah‑‑‑When female co‑accused of the same village had entered the Baithak of accused in the night time and did not return for a considerable period, prosecution witnesses being residents of the same village knowing that both accused were not related with each other, suspected some foul play‑‑‑Islam had not permitted free association of men and women and accused involved in such type of heinous offences were not entitled to any concession‑‑‑Offences against accused fell within prohibitory clause of S.497, Cr.P.C. and he had failed to make out a case of further inquiry‑‑‑Case of accused was not at par with his co‑accused as she had been granted bail being a woman and due to her tender age whose case fell within first proviso to S.497, Cr.P.C.‑‑‑Bail application of accused was dismissed, in circumstances.

Muhammad Arif Alvi for Petitioner.

Muhammad Rafique Rajpoot for the State.

2003 P Cr. L J 1997

[Lahore]

Before Ch. Iftikhar Hussain and M.A. Shahid Siddiqui, JJ

Prof. ALLAH RAKHA‑‑‑Appellant

Versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No.310 of 2003, decided on 3rd June, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 417 & 421‑‑‑Penal Code (XLV of 1860), Ss.302(b) & 34‑‑‑Appeal against acquittal‑‑‑Allegation against accused was that as occurrence had taken place in her house, she could not be absolved of her liability for Qatl‑e‑Amd of deceased‑‑‑Trial Court, while acquitting accused, had observed that accused had played no role in commission of Qatl‑e‑Amd of the deceased‑‑‑Occurrence though had taken place in the house of accused, but by such fact alone she could not be sufficiently and satisfactorily connected with charge of Qatl‑e‑Amd‑‑‑Trial Court had also observed that nothing incriminating appeared in the statement of prosecution witnesses against the accused‑‑‑Entire prosecution evidence on record, had not revealed anything showing that accused had played any role in commission of crime constituting abetment or conspiracy on her part‑‑‑Finding of acquittal of accused, was neither perverse nor arbitrary‑‑‑Judgment to the extent of acquittal of accused, which was based on record, neither being absurd nor artificial and fanciful, was maintained.

Malik Muhammad Qasim Awan for Appellant.

2003 P Cr. L J 2000

[Lahore]

Before Raja Muhammad Sabir, J

AMEER AFZAL BAIG ‑‑‑ Petitioner

Versus

AHSAN ULLAH BAIG and 3 others‑‑‑Respondents

Writ Petition No.6588 of 2003, decided on 7th July, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 176‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Application for exhumation of dead body‑‑‑Applicant who was son of the deceased had nourished suspicion that his mother had killed his father by administering poison to him with conspiracy of respondent with whom she allegedly had illicit relations‑‑‑Special Judicial Magistrate, ordered for disinterment of dead body ‑‑‑Respondent moved application before Sessions Judge, who ordered the transfer of tile case to another Judicial Magistrate and said Magistrate, after recording the evidence and hearing the parties, dismissed the application for exhumation of dead body‑‑‑Aggrieved of said order applicant filed revision before Additional Sessions Judge who, after hearing the parties, set aside order of Judicial Magistrate and restored that of Special Magistrate whereby application for exhumation of dead body was allowed‑‑‑Validity‑‑‑Grounds urged in the Constitutional petition against order passed in revision, was relatable to the assessment of evidence produced by parties in the Court of Judicial Magistrate‑‑‑High Court, under its Constitutional jurisdiction would not sit in appeal, to assess evidence and give its own findings‑‑‑Constitutional jurisdiction was to be exercised in the aid of justice‑‑‑Applicant having suspected that his deceased father was administered poison by respondent, mere submission of application after nine months of death of his father, bras not sufficient to dismiss said application ‑‑‑Disinterment of dead body was to determine cause of death of father of applicant‑‑‑Order of Additional Sessions Judge passed in revision was just and fair and would advance cause of justice‑‑‑Said order not suffering from any jurisdictional or legal defect, could not be interfered with by High Court, in exercise of its Constitutional jurisdiction.

Ghulam Nabi v. D.M., Okara 1989 MLD 4147 ref.

Nazir Ahmad Ghazi for Petitioner.

Kh. Mahmud Ahmad for Respondents Nos.2 and 3.

Muhammad Akbar Tarrar, Addl. A.‑G. for the State.

Date of hearing: 7th July, 2003.

2003 P Cr. L J 2014

[Lahore]

Before Muhammad Sayeed Akhtar and Bashir A. Mujahid, JJ

ALLAH DITTA‑‑‑Appellant

Versus

ZAFAR IQBAL and others‑‑‑Respondents

Criminal Appeal No.107, Murder Reference No.147 and Criminal Revision No.91 of 1997, decided on 27th June, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑Appreciation of evidence‑‑‑None of accused were nominated in the F.I.R. and case of prosecution against them was based on circumstantial evidence which could only be made basis for conviction when it excluded all hypothesis of innocence of accused and no link in the chain was found missing‑‑‑Evidence against accused was only in the statement of prosecution witness who was real brother of deceased and son of complainant‑‑‑Statement of said witness was with regard to last seen of deceased with accused which could not be considered enough to sustain conviction on murder charge when witness had some connection with deceased‑‑‑Independent corroboration was required to rely upon such evidence, but the same was lacking in the present case‑‑‑Last seen evidence was a weak type of circumstantial evidence, to base conviction on‑‑‑No sufficient evidence, in circumstances, was available on record to maintain the conviction of accused on murder charge‑‑‑Only evidence against co‑accused was his judicial confession which was recorded after seven days of the arrest of co‑accused‑‑‑No satisfactory explanation had been furnished for delayed recording of confessional statement and accused was also not told by the Magistrate that he would not be sent in police custody after his statement‑‑‑Judicial confession of co‑accused was not recorded after observing legal formalities by Magistrate ‑‑‑Co‑accused remained in police custody‑‑‑Judicial confession of co‑accused, could not be relied upon, in circumstances‑‑‑Prosecution having failed to establish its case against accused persons beyond any shadow of doubt, accused were acquitted of charge by extending them benefit of doubt and their conviction and sentences were set aside.

Ch. Barkat Ali v. Major Karam Elahi Zia 1992 SCMR 1047; Muhammad Fayaz v. The State PLD 1984 SC 445; Ali Khan v. The State 1999 SCMR 955; Ghulam Mustafa v. The State PLD 1991 SC 718; Naqeeb Ullah v. The State PLD 1979 SC 21; Azeem Shah v. The State PLD 1987 Quetta 96; Liaqat Bahadur v. The State PLD 1987 FSC 43 and Abdul Latif v. The State PLD 1999 SC 264 ref.

Razaq A. Mirza for Appellant.

Tariq Azam Chaudhry and Ch, Muhammad Iqbal for Respondents.

Zafar Hussain Janjua for the State.

Date of hearing: 27th June, 2002.

2003 P Cr. L J 2029

[Lahore]

Before Ch. Iftikhar Hussain, J

RAFAQAT ALI and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3212/B of 2002, decided on 10th December, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑­Further inquiry‑‑‑Accused as per F.I.R. was armed with Sota, but he did not cause any injury to the deceased ‑‑‑Co‑accused was empty‑handed at the time of incident‑‑‑Mere Lalkara had been ascribed to the accused persons in the commission of crime and no overt act was ascribed to them‑‑‑Question of their sharing common intention with the co‑accused in the murder of deceased was to be seen at the trial‑‑‑Case of accused, in circumstances was covered under subsection (2) of S.497, Cr.P.C. requiring further inquiry into their guilt‑‑‑Accused were behind the bars for the last about six months and were stated to be previous non ­convict‑‑‑Accused were admitted to bail, in circumstances.

Tariq Zulfiqar Ahmad Chaudhary for Petitioners.

Iftikhar Ibrahim Qureshi for the State.

Date of hearing 10th December, 2002.

2003 P Cr. L J 2036

[Lahore]

Before Asif Saeed Khan Khosa, J

JAHANGIR‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2234/B of 2003, decided on 16th May, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/324/148/149‑‑‑Bail grant of‑‑‑Further inquiry‑‑‑Three versions of same incident had been advanced during investigation of the case and as to which version was actually correct, was a matter which would be decided by Trial Court on the basis of evidence to be led before it during trial‑‑‑Matter regarding culpability of accused required further probe‑‑‑Accused was not directly connected with the motive set up in. the F.I.R. or the cross‑version‑‑­Medical evidence had contradicted allegation against accused inasmuch as according to cross‑version, accused was armed with gun, but post­ mortem examination of dead body of deceased had shown that a bullet had been recovered from the dead body‑‑‑Affidavit sworn by the brother of the deceased revealed that allegation against the accused was incorrect‑‑‑Investigation of case having already been finalized, continued custody of accused in jail was not likely to serve any beneficial purpose‑‑‑Case against accused calling for further inquiry into his guilt within purview of subsection (2) of S.497, Cr.P.C., accused was admitted to bail, in circumstances.

Rai M. Tufail Khan Kharal for Petitioner.

Miss Foazia Sultana for the State.

Date of hearing: 16th May, 2003.

2003 P Cr. L J 2037

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD IQBAL and others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.630/B of 2003, decided on 10th February, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), S.324/34‑‑‑Bail, grant of‑‑­Further inquiry‑‑‑Case was of two versions as three persons from the side of accused were injured during the occurrence and their injuries had been suppressed by the prosecution‑‑‑Accused who had been sent to judicial lock‑up, their case was of further inquiry falling under S.497(2), Cr.P.C.‑‑‑Accused were admitted to bail in circumstances.

Hafiz Khalil Ahmad for Petitioners.

Sajjad Jafri for the State.

Date of hearing: 10th February, 2003

2003 P Cr. L J 2039

[Lahore]

Before Ijaz Ahmad, Chaudhry, J

NAZIR AHMAD and others‑‑‑Petitioners

Versus

S.H.O., POLICE STATION GAGGU, DISTRICT VEHARI and others‑‑‑Respondents

Writ Petition No.9107 of 1998, decided on 19th February, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 337‑F(i)(v)/337‑A(i)/337‑H(ii)/427/148/149‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Quashing of F.I.R.‑‑F.I.R. earlier registered under Ss.454/380/427/34, P.P.C. for the same occurrence, having been cancelled due to registration of the present F.I.R., ground for quashing of present F.I.R. was not available to the petitioners‑‑‑Petitioners had contended that they were declared innocent by the police during investigation‑‑‑Contention was repelled because police opinion was neither binding on the Court nor on the basis of the same F.I.R. could be quashed‑‑‑Investigating officer had failed to conclude investigation despite the same was not stayed and only direction was given that accused should not be illegally harassed and accused were directed to join the investigation‑‑‑No ground having been made out for quashing of F.I.R., petition for quashing the same was dismissed.

Qazi Khalid Pervaiz for Petitioners.

Tariq Zulfiqar Ahmad Chaudhry for Respondents.

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

Date of hearing: 19th February, 2003.

2003 P Cr. L J 2040

[Lahore]

Before M. Naeemullah Khan, Sherwani, J

ABDUL GHAFOOR‑‑‑Petitioner

Versus

YASMEEN BIBI‑‑‑Respondent

Criminal Miscellaneous No.279/C/B of 2003, decided on 14th January, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), Ss.302/109/148/149‑‑‑Bail, cancellation of‑‑‑Name of accused did not figure in the F.I.R. and her name was introduced as an accused at a belated stage through supplementary statement which could hardly be given any weight under the law‑‑‑Allegation was that accused alongwith others had caught hold the deceased and co‑accused fired at the waist of deceased by means of a gun‑‑‑Such allegation if viewed in the light of contents of the post ­mortem report, did not seem to be wholly true‑‑‑Nobody could catch hold of the man, when he Was likely to make a shot at the victim by a gun and no one would take the risk of being hit by the discharge of a gun‑fire‑‑­Such allegation, in circumstances, was doubtful‑‑‑Accused being a woman her case was fully covered under proviso to subsection (1) of S.497. Cr.P.C.‑‑‑Conscientious judicial discretion in granting bail to accused exercised by Trial Court, which was governed by law, did not call for any interference‑‑‑Petition for cancellation of bail, was dismissed, in circumstances.

Syed Mumtaz Ali Shah Hamdani for Petitioner.

Date of hearing: 14th January, 2003.

2003 P Cr. L J 1

[Peshawar]

Before Malik Hamid Saeed and Abdur Rauf Khan Lughmani, JJ

MEHMOOD HUSSAIN------Appellant

Versus

THE STATE and another‑‑‑Respondents

Ehtesab Criminal Appeal No.6 and Writ Petition No.339 of 2002, decided on 23rd September, 2002.

(a) Benami transaction‑‑‑

‑‑‑‑ Benamidar‑‑‑"Benamidar" denotes a person who has nominal title to the property‑‑‑Person who purchases the property in the name of "Benamidar" has the real title to such property.

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

‑‑‑‑S. 14(c)‑‑‑Benami transaction‑‑‑Tests for determination of‑‑‑Tests for determining the Benami nature of a transaction are: source of consideration; from whose custody the original title deed and other documents came in evidence; who is in possession of the suit property, and motive of Benami transaction.

Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703 ref.

(c) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑-

‑‑‑S. 10‑‑‑Appreciation of evidence‑‑‑No direct or indirect evidence was available on record to show that the accused was a corrupt official and had amassed huge wealth by using his official position or he was living beyond his means‑‑‑Record also did not prove that the alleged Benamidars were holding the properties mentioned in the charge/reference as Benamidars and that they were dependent upon the accused‑‑‑Prosecution had failed to prove any of the determining factors of Benami transaction like source of consideration, possession or motive although the onus probandi lay on it‑‑‑Alleged Benamidars as against this had furnished reasonable account for purchasing and holding the properties in question through lawful means‑‑‑Accused _was acquitted in circumstances.

Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703 ref.

Muhammad Anwar for Appellant.

Rashidul Haq and Mian Fasihul Mulk, Deputy Prosecutor for NAB.

Dates of hearing: 11th, 12th, 13th June, 2002.

2003 P Cr. L J 35

[Peshawar]

Before Tariq Parvez Khan and Muhammad Qaim Jan Khan; JJ

ATIF ZAMAN‑‑‑Appellant

Versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No. 269 and Murder Reference No. 13 of 2002, decided on 19th September, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b) & 377‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑‑‑Appreciation of evidence‑‑‑Minority of accused ‑‑‑Sentence‑‑­Documentary evidence and Court observation revealed the age of accused being less than 18 years‑‑‑Judicial confession made by accused was voluntary and all the details contained therein regarding occurrence were confirmed by the circumstantial evidence connecting the accused with the offence‑‑‑Convictions and sentences of accused were upheld in circumstances except the sentence of death which was reduced to imprisonment for life in view of his age being less than 18 years.

Faqirullah v. Khalil‑uz‑Zaman and others 1999 SCMR 2203; Muhammad Saleem v. State 2001 SCMR 536 and 2002 SCMR 629 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b) & 377‑‑‑Confession‑‑‑Retracted confession would not mean that it was not made and when it is supported by circumstantial evidence and appears to be straightforward and voluntary, it, by itself, is sufficient for recording conviction.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302 & 53‑‑‑Qatl‑e‑Amd‑‑‑Sentence‑‑‑Offence of Qtal‑e‑Amd, according to the provisions of Ss.53 & 302, P.P.C., is punishable with death which can be either by way of Qisas or by way of Ta'zir and the two sentences of death are independent of each other.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b) & 304‑‑‑Sentence‑‑Offender not an adult‑‑‑Where the accused is not an adult and had committed the offence of Qatl‑e‑Amd which is proved against him otherwise and there is no evidence as required under S.304, P.P.C., he can still be awarded sentence of death not as Qisas but as Ta'zir which is the legal sentence under S.302(b), P.P.C.

Faqirullah v. Khalil‑uz‑Zaman and others 1999 SCMR 2203; Muhammad Saleem v. State 2001 SCMR 536 and 2002 SCMR 629 ref.

Qazi Muhammad Arshad for Appellant.

Akhtar Naveed, Dy.A.‑G. (P) for the State.

Fazli Haq Abbasi for the Complainant.

Date of hearing: 28th August, 2002.

2003 P Cr. L J 64

[Peshawar]

Before Shah Jehan Khan and Shahzad Akbar Khan, JJ

MUHAMMAD FAYYAZ and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 33 and Criminal Revision No. 17 of 1999, decided on 5th July, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Interested witness‑‑‑Testimony of an interested eye‑witness cannot be rejected outright and it can be made basis of conviction, provided it receives corroboration through other circumstantial evidence.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Sufficient light being available at the place of occurrence, question of identification of accused had become insignificant‑‑‑Eye‑witnesses had unanimously charged the accused for firing at the deceased and they were also unanimous on all other material points‑‑‑Presence of eye‑witnesses on the spot at the relevant time was not open to any doubt‑‑‑Ocular testimony was unimpeachable and confidence‑inspiring which was strongly supported by medical evidence, positive report of blood by the Chemical Examiner, motive for the occurrence and the unexplained abscondence of accused for four to five years‑‑‑Conviction and sentence of accused were upheld in circumstances.

Muhammad Zubair v. The State 2002 SCMR 1141; PLD 1980 SC 109; PLD 1971 Pesh. 32; PLD 1974 Pesh. 113 and NLR 1985 330 ref.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Abscondence‑‑‑Effect‑‑‑In determining the effect of abscondence, the antecedents of the absconder, his occupational habits and limitations, period of abscondence and specific explanation for abscondence have to be considered in juxtaposition with other evidence on the record.

PLD 1980 SC 109 ref.

Saeed Akhtar Khan for Appellant.

Muhammad Ayub, Dy.A.‑G. for the State.

M. Idris for the Complainant.

Dates of hearing: 3rd and 4th July, 2002.

2003 P Cr. L J 82

[Peshawar]

Before Tariq Parvez Khan and Ijaz‑ul‑Hasan, JJ

Mst. AJAB SULTANA and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 104 of 2002, decided on 4th July, 2002.

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

‑‑‑‑S. 9‑‑‑Appreciation of evidence‑‑‑No misreading or non‑reading of evidence resulting into miscarriage of justice was pointed out in the impugned judgment‑‑‑Accused had not clarified their position about being in possession of 16000 grams of "Charas" and their solitary word of having been falsely charged without a positive attempt to substantive the same was of no consequence‑‑‑Police Officer, who was a witness to the commission of offence, was not legally prohibited to be a complainant as well as an Investigating Officer in the case so long as it did not in any way prejudice the accused and such fact, by, itself, was no ground to deprecate tote investigation and vitiate the trial‑‑‑Conviction of accused was maintained in circumstances‑‑‑Accused ladies were first offenders and the narcotic recovered from them was less than ten kilograms‑‑­Sentence awarded to accused being too harsh and not in consonance with the provisions of S.9(c) of the Control of Narcotic Substances Act, 1997, was substantially reduced.

Zahoor Ahmad Awan and another v. The State 1997 SCMR 543; Asghar Ali v. The State 1996 SCMR 1541; Munawar Hussain and 2 others v. The State 1993 SCMR 785; Muhammad Hanif v. The State PLD 2002 Lah. 200; Fida Jan v. The State 2001 SCMR 36; Tariq Pervaiz v. The State 1995 SCMR 1345 and Sohrab v. The State 2002 PCr. LJ 344 ref.

Imran Saeed v. The State 2001 PCr. LJ 1365 distinguished.

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

‑‑‑‑S. 9‑‑‑Police Officer competent to be a complainant and an Investigating Officer in the case‑‑‑Trial not vitiated‑‑‑No legal prohibition for a Police Officer to be a complainant if he is a witness to the commission of an offence and also to be an Investigating Officer so long as it does not in any way prejudice the accused‑‑‑Mere fact that ‑Police Officer, was also complainant and Investigating Officer would afford no ground to deprecate the investigation and vitiate the trial.

Sohrab v. The State 2002 PCr.LJ 344 ref.

Noor Alam Khan for Appellants.

Muhammad Jamil Qamar for the State.

Date of hearing: 4th July, 2002.

2003 P Cr. L J 106

[Peshawar]

Before Tariq Parvez Khan and Ijaz‑ul‑Hassan, JJ

REHMAN‑UD‑DIN and others‑---Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 165 of 2002, decided 11th September, 2002.

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

‑‑‑‑S. 13‑‑‑Appreciation of evidence ‑‑‑No ill‑will between the accused and the police witnesses so as to prompt the latter to falsely involve the accused was pointed out‑‑‑ Deposition of police officials could not be brushed aside simply because they belonged to the Police Department‑‑­Police Constable had fully supported the recovery from the accused‑‑­Mere fact that no independent and disinterested witness from public had been associated with the proceedings, by itself, could not render the recovery of the arms doubtful‑‑‑Preponderant evidence on record had proved the guilt against the accused‑‑‑Appeal was dismissed accordingly.

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

‑‑‑‑S. 13‑‑‑Criminal Procedure Code (V of 1898), S.103‑‑‑Appreciation of evidence ‑‑‑Recovery‑ Police Officials are as good witnesses as any other citizens unless any mala fides is established against them‑‑­Recovery cannot be treated as violative of the provisions of S. 103, Cr.P.C. unless any enmity or ill‑will on the part of the police witnesses was shown for false implication of accused.

Muhammad Usman Khan Tarlandi for Appellant.

Malik Ahmad Toor, Dy.A.‑G. for the State.

Date of hearing: 11th September, 2002.

2003 P Cr. L J 470

[Peshawar]

Before Ijaz‑ul‑Hassan, J

NEK MUHAMMAD ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Bail Application No.1443 of 2002, decided on 31st December, 2002.

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

‑‑‑‑S. 497‑‑‑Control of Narcotic Substances Act (XXV of 1997), S.9‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4 ‑‑‑ Bail, refusal of ‑‑‑Charas weighing 40 grams had been recovered from the possession of the accused through a fake customer (police constable in white clothes) whereas Charas weighing 1000 grams had been recovered from the house of the accused during raid conducted by the local police‑‑‑Nothing was available on file to demonstrate that the accused had been falsely implicated on account of ulterior motive or ill‑will by the police‑‑‑Prima facie, reasonable grounds did exist to believe in, the accused's involvement in the offence alleged against him ‑‑‑Challan against the accused had been submitted in Court and trial was likely to commence in near future ‑‑‑Accused was refused bail in the circumstances.

2000 P Cr. L J 657 ref.

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

‑‑‑‑S. 497‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 20‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979). Arts.3/4‑‑­Bail‑‑‑Accused had contended that mandatory provisions of S.20 of the Control of Narcotic Substances Act, 1997 had been flagrantly violated‑‑­Validity‑‑‑Such a submission could not be taken into consideration at bail stage.

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

‑‑‑‑Ss. 497 & 103‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 25‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Ars.3/4‑‑‑Bail‑‑‑Plea of the accused was with regard to non‑compliance with provisions of S.103, Cr.P.C.‑‑‑Validity‑‑‑Plea of the accused was without substance in view of the provisions contained in S.25 of the Control of Narcotic Substances Act, 1997.

Muhammad Ijaz Khan Hoti for Petitioner.

Tariq Javed, Dy.A.‑G. for the State.

Date of hearing: 31st December, 2002.

2003 P Cr. L J 478

[Peshawar]

Before Ijaz‑ul‑Hassan, J

FAZAL MIR ‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous No. 1061 of 2002, decided on 15th November, 2002.

Criminal Procedure Code (V of 1898)---

‑‑S. 497‑‑‑Penal Code (XLV of 1860) Ss.302/324‑‑‑Bail, grant of‑‑­Accused was one of the persons charged for murder‑‑‑Complainant was stated to have gone abroad and his whereabouts were not known‑‑‑Co‑accused had already been granted bail in the case‑‑­Accused could not be discriminated and had to be treated fairly and equally with other accused‑‑‑Accused was granted bail in the circumstances.

Fazil Khaliq alias Hafiz v. The State 1996 SCMR 364 ref.

Attaullah Khan for Petitioner.

Malik Akhtar Khan for the State.

Abdul Fayaz Khan for the Complainant.

Date of hearing: 15th November, 2002.

2003 P Cr. L J 486

[Peshawar]

Before Ijaz‑ul‑Hassan, J

RAB NAWAZ‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous No.1340 of 2002, decided on 16th December, 2002.

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

‑‑‑‑S. 497‑‑‑Bail‑‑‑Further inquiry‑‑‑Scope‑‑‑Particular case would only fall within the scope of further inquiry under S.497(2), Cr.P.C. if the Court reaches a conclusion that on the material before it, there are no reasonable grounds to believe that the accused is guilty of a non‑bailable offence or an offence punishable with death, imprisonment for life or imprisonment for 10 years‑‑‑In the absence of finding to this effect, there will be no occasion for the Court to hold that the case is one of further inquiry‑‑‑In order to ascertain that no reasonable ground exists to believe that the accused is guilty of a non‑bailable offence or offence punishable with death, life imprisonment or imprisonment for 10 years, the Court if the case is still at the stage of investigation will make a tentative assessment of the allegations against accused person in the light of material so far collected by the Investigation Agency to connect trim with the offence.

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

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/148/149‑‑‑Bail, grant of‑‑‑Accused was one of the persons charged with firing culminating into the murder of the deceased‑‑‑Fact that in the F.I.R. and in the statements of the prosecution witnesses there was joint allegation of firing and no specific injury on the deceased was attributed to the accused would not make the case against him one of further inquiry‑‑­Accused had been mentioned in the F.I.R. as one of the culprits with a clear role in commission of crime‑‑‑Sufficient material thus was available on file to associate the accused with the offence‑‑‑No prima facie case had been made for grant of bail‑‑‑Accused was denied bail in the circumstances.

Shahzaman and 2 others v. State and another PLD 1994 SC 65; Tanveer Ahmed v. Muhammad Saqib and 2 others PLD 1994 SC 88 and Syed Qamar Ahmad and others v. Anjum Zafar and others 1994 SCMR 65 rel.

1995 SCMR 310; 1996 SCMR 1125; 2002 MLD 52; 1988 SCMR 281; 1998 SCMR 354; 1998 SCMR 496 and 1996 SCMR 555 ref.

Sher Nawaz Khattak for Petitioner.

Abdul Karim Khan for the State.

Malik Fakhare Azam for the Complainant.

2003 P Cr. L J 497

[Peshawar]

Before Talaat Qayyum Qureshi, J

GULZAR KHAN and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Revision No.101 of 2002, heard on 11th December, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

-‑‑Ss. 514 & 439‑‑‑Penal Code (XLV of 1860), Ss.400/401/420/468/411‑‑‑Petitioners had stood sureties for the accused and executed bail bonds in the sum of Rs.80,000 for the attendance of the accused before the Court of the Judicial Magistrate‑‑‑When summoned, accused had failed to attend the Court to face trial, therefore, the petitioners had been called upon to show‑cause as to why they should not be proceeded against under S.514 Cr.P.C. and the amount of bail bonds be realized from them‑‑‑Additional Sessions Judge had forfeited the amount of bail bonds and directed each of the petitioners to deposit Rs.80,000‑‑Validity‑‑‑Perusal of bail granting order showed that the petitioners were liable to pay Rs.80,000 but since they had stood sureties on humanitarian grounds only and had not taken any, benefit out of the sureties bonds. Therefore, the impugned order of the Additional Sessions Judge was too harsh‑‑‑Criminal revision was accordingly allowed and the sureties amount was reduced to half, equivalent to Rs.40,000 which was to be recovered from the petitioners in accordance with law.

Muhammad Amin Khattak Lachi for Petitioner.

Muhammad Jamil Qamar for the State.

Date of hearing: 11th December, 2002.

2003 P Cr. L J 502

[Peshawar]

Before Ijaz‑ul‑Hassan, J

MUHAMMAD ILYAS‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.1259 of 2002, decided on 2nd December, 2002.

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

‑‑‑‑‑Ss. 497 & 103‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 25‑‑‑Non‑compliance with provisions of S.103, Cr.P.C.‑‑­Complainant was claimed to have effected recovery on the basis of a prior information and no witness from the locality was associated with the recovery proceedings but it was equally true that the provisions of S.103, Cr.P.C. had no application to the narcotics cases as per provision contained under S.25 of the Control of Narcotic Substances Act, 1997‑‑­Plea of non‑compliance for formalities under S.103, Cr.P.C. was not available to the accused‑‑‑Police officials were as good witnesses as any person from the public provided no animosity was alleged and proved against them‑‑‑Nothing was available on file to show that the accused had been falsely roped in due to ill‑will or animosity of the police officials‑‑­Contention of the accused in this regard was repelled in circumstances.

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

‑‑‑‑‑S. 497‑‑‑Control of Narcotic Substances Act (XXV of 1997), S.9‑‑­Bail, refusal of‑‑‑Large quantity of Charas weighing 1500 grams had been recovered from immediate possession of the accused and he had been apprehended red‑handed‑‑‑Recovery memo to this effect had been prepared at the spot which was duly witnessed by police constables stated to have accompanied the complainant at the time of apprehension of accused and recovery of Charas in question‑‑‑Data collected by the prosecution was sufficient to provide reasonable ground for believing that a prima facie case existed against the accused‑‑‑Bail petition was dismissed in circumstances.

Tahir v. The State 2000 PCr.LJ 949; Nauroz Khan v. The State 2000 PCr.LJ 1222; Akhtar. Hussain v. The State 1999 PCr.LJ 225; Nasibullah v. The State 2002 MLD 241 and Abdullah Shah v. The State 2002 PCr.LJ 1386 ref.

Khanzada Ajmal Zeb Khan for Petitioner.

Abdul Rauf Gandapur for the State.

Date of hearing: 2nd December, 2002.

2003 P Cr. L J 506

[Peshawar]

Before Talaat Qayyum Qureshi, J

NASEER KHAN‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.242 of 2002, decided on 11th December, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 561‑A, 523 & 550‑‑‑Superdari of a vehicle‑‑‑Petitioner had sought quashing of order of Additional Sessions Judge whereby his application tier Superdari of vehicle had been dismissed‑‑‑Validity‑‑‑Admittedly no case had been registered to date against any of the persons who had owned the said vehicle in turn at different times though the vehicle in question was in custody of the police for four months‑‑‑Vehicle in question was taken into possession under Ss.523 & 550, Cr.P.C. but no inquiry could be completed in four months' time and there was no allegation that the said vehicle was either stolen or was used in any crime‑‑‑Police Authorities had sent the vehicle to the concerned Customs Officials who had confirmed that it was the same vehicle which was auctioned by the Customs Department‑‑‑No justification existed with the police to detain the vehicle‑‑‑Petitioner was admittedly bona fide purchaser of the vehicle in question and there was no rival claimant‑‑­Vehicle had been taken from the possession of the driver of the petitioner, therefore, being the last possessor petitioner was also entitled for interim custody of the seized vehicle‑‑‑High Court allowed the petition in circumstances.

Attaullah Khan for Petitioner.

Jamil Qamar for the State.

Date of hearing: 11th December, 2002.

2003 P Cr. L J 510

[Peshawar]

Before Ijaz‑ul‑Hassan, J

MUHAMMAD KHAN‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1232 of 2002, decided on 15th November, 2002.

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

‑‑‑‑‑S. 497‑‑‑Control of Narcotic Substances Act (XXV of 1997), S.9‑‑­Bail, refusal of ‑‑‑Large quantity of heroin weighing 800 grams had been recovered from the car driven by the accused at the time of interception by the Anti‑Narcotic Staff‑‑‑Prima facie accused was associated with the guilt‑‑‑Accused was denied bail in circumstances.

Nazan Shah v. The State 1998 PCr.LJ 1540 and Gul Said v. The State 2002 PCr.LJ 1680 ref.

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

‑‑‑‑‑S. 497‑‑‑Bail‑‑‑Offences not falling within prohibitory clause of S. 497, Cr.P.C.‑‑‑Courts may decline to admit an accused to bail if there exists recognized exceptional circumstances.

Imtiaz Ahmad v. The State PLD 1997 SC 545 ref.

Syed Sardar Hussain for Petitioner.

Malik Akhtar Khan for Respondent.

Tariq Kakar for A.N.F.

Date of hearing: 15th November, 2002.

2003 P Cr. L J 518

[Peshawar]

Before Ijaz‑ul‑Hassan, J

FAQIR HUSSAIN ‑‑‑Petitioner

Versus

ASAD ALI KHAN and another‑‑‑Respondents

Criminal Miscellaneous No. 1274 of 2002, decided on 22nd November, 2002.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.320, 324, 459, 148 & 149‑‑­Anti‑Terrorism Act. (XVII of 1997), Ss.6(a)(b) & 7‑‑‑Bail, grant of‑‑­Principles‑‑‑Bail not to be refused as a punishment merely on the allegation that the accused had committed offence punishable with death or imprisonment for life unless reasonable grounds appeared to exist to disclose his complicity.

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

‑‑‑‑S. 497‑‑‑Bail, grant of‑‑‑Appreciation of evidence‑‑‑Material, available on record was to be taken into consideration at the bail granting stage and deeper appreciation or evaluation of evidence was not permissible for grant or refusal of bail‑‑‑Only tentative assessment was to be made.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/459/148/149‑‑‑Anti-­Terrorism Act (XVII of 1997), Ss.6(a)(b)/7‑‑‑Bail, grant of‑‑‑Accused had Been nominated as one of the accused persons in the F.I.R. but role of firing leading to the murder of the two deceased had been assigned to the principal accused‑‑‑Allegation against the accused was that he alongwith others duly armed, had encircled the house of the complainant possibly in order to foil their attempt to resist possession of land‑‑­Accused was charged with vicarious liability which could be appropriately dealt with by the Trial Court after recording of evidence‑‑­Plea of alibi raised on behalf of the accused was also left to the Trial Court to decide‑‑‑Accused had succeeded to make out a prima facie case for grant of bail‑‑‑Accused was granted bail by the High Court in circumstances.

Akram Khan v. The State and another 1978 SCMR 242; Ali Akbar v. The State 1991 MLD 2208; Mehmood Akhtar v. The State 1995 SCMR 310; Basharat Hussain v. Ghulam Hussain 1978 SCMR 357; Shahid v. The State 1994 SCMR 393; Muhammad Haleem Khan v. The State 1986 PCr.LJ 1457; Mst. Barkat Bibi v. Gulzar 1979 SCMR 65; Munawar v. The State 1981 SCMR 1092; Muhammad Rasheed v. The State 1979 SCMR 92; Hafiz Imam Bux v. Muhammad Bux 1979 SCMR 197; Gul Khan v. Gul Daraz Khan 1995 SCMR 1765 and Shah Zaman v. The State PLD 1994 SC 65 ref.

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

‑‑‑‑S. 497‑‑‑Bail‑‑‑Vicarious liability, consideration of‑‑‑Facts to be looked into‑‑‑Issue of vicarious liability can also be considered at the bail granting stage provided the material placed before the Court justifies the same.

Muhammad Rashid v. State 1979 SCMR 92 ref.

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

‑‑‑‑S. 497‑‑‑Bail‑‑‑Benefit of doubt‑‑‑Question of benefit of reasonable doubt is necessarily to be determined not only while deciding the question of guilt of an accused but also while considering the question of bail‑‑‑Benefit of reasonable doubt about occurrence itself, identity of the accused; part allegedly played by him in the occurrence; his presence on the spot and on the question of his vicarious liability, would go to him even at bail stage.

PLD 1995 SC 34 ref.

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

‑‑‑‑S. 497‑‑‑Bail‑‑‑Precedents, value of‑‑‑Bail application, has its own circumstances and facts‑‑‑Bail is granted under those particular circumstances and except broad principles ‑ laid down by the superior Courts no other example is attracted and cannot be considered to be a deciding factor for the purpose of disposing of the bail application.

Sikandar Khan for Petitioner.

Malik Akhtar Khan for the State.

Qasim Khan Muhdzai for the Complainant.

Date of hearing: 22nd November, 2002.

2003 P Cr. L J 528

[Peshawar]

Before Ijaz‑ul‑Hassan, J

SHER AHMAD and 5 others‑‑‑Petitioners

Versus

JAN FAQIR and another‑‑‑Respondents

Criminal Miscellaneous No.1055 of 2002, decided on 18th November, 2002.

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

‑‑‑‑S. 497‑‑‑Bail, grant of‑‑‑Principle‑‑‑Before releasing the accused on bail, the Court is required to apply its mind keeping in view the provisions contained in subsection (1) of S.497 and subsection (2) of S.497, Cr.P.C. in its 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 as provided in subsections (1) & (2) of S.497, Cr.P.C. or to prevent the abuse of the process of Court or to do justice, keeping in view the particular facts of each case‑‑‑Bail in cases of commission of non‑bailable offences and particularly falling in the prohibitory clause in subsection (1) of S.497, Cr.P.C. is not to be granted as a matter of course, with a simple sentence that it is a case of further inquiry and without keeping in view the entire provisions of S.497, Cr.P.C.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss. 324/429/148/149 ... Explosive Substances Act (VI of 1908), Ss.3/4‑‑‑Bail, refusal of‑‑‑Accused had been alleged to have opened indiscriminate firing on the house of the complainant from the nearby hillock‑-‑Sufficient incriminating material was available on file to implicate the accused with the guilt and the unexplained noticeable abscondence disentitled the accused to the concession of bail notwithstanding the merits of the case‑‑‑Accused were denied bail in circumstances.

Tariq Bashir v. The State PLD 1995 SC 34; Awal Gul v. Zawar Khan and others PLD 1985 SC 402; Raees Khan v. Said Hanif and another 1979 SCMR 90; Azhar Hussain and another v. The State 1983 SCMR 978 and Nauroz Khan v. The State and another 1999 PCr.LJ 698 ref.

Khawaja Muhammad Khan for Petitioner.

Malik Haroon Iqbal for Respondent.

Muhammad Habib Qureshi for the State.

Date of hearing: 18th November, 2002.

2003 P Cr. L J 544

[Peshawar]

Before Ijaz‑ul‑Hassan, J

SALAMAT‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1166 of 2002, decided on 15th November, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.381‑A‑‑‑Bail, grant of‑‑­Nothing was on record to implicate the accused with the guilt except the solitary statement of one person involved in another criminal case registered under Ss.411/419/420/109, P.P.C.‑‑‑Case of the accused required further probe to determine his guilt within the meaning of subsection (2) of S.497, Cr.P.C.‑‑‑Accused was granted bail in the circumstances.

Fida Gul for Petitioner.

Malik Akhtar Khan for the State.

Date of hearing: 15th November, 2002.

2003 P Cr. L J 651

[Peshawar]

Before Tariq Parvez Khan and Abdul Rauf Khan Lughmani, JJ

MUHAMMAD HALEEM‑‑‑Appellant

Versus

SAHIB DIN and another‑‑‑Respondents

Criminal Appeal No.222 of 1996 and Criminal Jail Appeal No. 39 of 2000, decided on 18th December, 2002.

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

‑‑‑‑S. 417‑‑‑Appeal against acquittal‑‑‑Double presumption of innocence in favour of accused after acquittal by Trial Court‑‑‑Meaning and import‑‑‑The moment the Trial Court forms an opinion on the basis of evidence that prosecution has proved the charge, the first presumption of innocence in favour of accused disappears‑‑‑Second presumption of innocence after obtaining an order of acquittal from the Trial Court does not absolve the accused because his acquittal is always open to challenge in view of the statutory right given to the State as well as to the complainant under S.417, Cr.P.C. to challenge the same.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑Ss. 302/34 & 324/34‑‑‑Criminal Procedure Code (V of 1898), S.417(2‑A)‑‑‑Appeal against acquittal‑‑‑Previous enmity could not be a ground to discard the testimony outright‑‑‑Eye‑witness who had sustained fire‑arm injuries during the occurrence had made the report within 45 minutes‑‑‑Testimony of the said witness was corroborated by medical evidence as to the number of shots received and direction of injuries which was supported by the site plan showing the places where the accused, the deceased and the complainant were present‑‑‑Ocular testimony was also supported by the motive and abscondence of the accused‑‑‑Such evidence on record had sufficiently proved the charge of murder as well as attempted murder against the accused‑‑‑Judgment of Trial Court acquitting the accused was consequently set aside and the accused were convicted under Ss.302/34 & 324/34. P.P.C. and sentenced to undergo imprisonment for life and seven years' R.I. each with fine respectively in circumstances‑‑‑Sentences were directed to run concurrently.

Muzammil Shah Khattak for Appellant.

M. Amin Khattak for Respondents.

Tariq Javed, Dy.A.‑G. (P) for the State.

Date of hearing: 18th December, 2002.

2003 P Cr. L J 680

[Peshawar]

Before Nasir‑ul‑Mulk and Ijaz‑ul‑Hassan, JJ

JOHAR ALI and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 197 of 2002, decided on 12th December, 2002.

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

‑‑‑‑S. 29‑‑‑Presumption arising from possession of illicit articles‑‑­Section 29 of the Control of Narcotic Substances Act, 1997, does not absolve the prosecution of its primary duty to prove its case beyond doubt‑‑‑Burden shifts to the accused only after the prosecution has established the recovery beyond doubt.

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

‑‑‑‑S. 9‑‑‑Appreciation of evidence‑‑‑Evidence of recovery of the narcotics from the accused was contradictory and the prosecution had failed to prove the recovery‑‑‑Specimen parcels had been sent to the Chemical Laboratory after a considerable delay and record did not disclose the person in whose custody the said parcels remained during such period‑‑‑No implicit reliance, thus, could be placed on the Chemical Examiner's Report‑‑‑Accused were acquitted in circumstances.

Mst. Iqbal Bibi v. The State 2000 PCr.LJ 1812; Mushtaq v. The State 2002 PCr.LJ 1312 and Munawar Hussain and others v. The State 1993 SCMR 789 ref.

Sohail Akhtar for Appellants.

Abdur Rauf Gandapur for the State.

Date of hearing: 10th December, 2002.

2003 P Cr. L J 699

[Peshawar]

Before Malik Hamid Saeed and Ijaz‑ul‑Hassan, JJ

SAHIBZAR‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.217 of 2000, decided on 21st November, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)/34‑‑‑Appreciation of evidence‑‑‑Burden of proof‑‑‑Onus of proof in murder case always lies on the prosecution which is bound to prove its case against the accused beyond any reasonable doubt.

Ghulam Abbas and others v. The State 2001 PCr.LJ 1672; Tariq Parvez v. The State 1995 SCMR 1345 and Hakim Ali and others v. The State 1971 SCMR 432 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)/34‑‑‑Appreciation of evidence‑‑‑Promptly lodged F.I.R. contained all the relevant details of the occurrence including the names of the accused and the role played by them during the incident‑‑­Complainant had fully justified her presence at the spot who had given a straightforward and faithful account of the tragedy and her solitary statement was sufficient to sustain the conviction of accused‑‑­Relationship of the complainant with the deceased was not sufficient to discard her testimony which inspired confidence and remained unshaken in cross‑examination‑‑‑Medical evidence being an expert opinion could not outweigh the ocular testimony which was consistent and trustworthy ‑‑‑Abscondence for three years was not satisfactorily explained by the accused which had pointed out his guilt and exhibited his guilty conscience‑‑‑Motive for the occurrence had been highlighted in the F.I.R. as well as to the statement of the complainant, but its absence or weakness would not prejudice the prosecution case which otherwise was proved by reliable evidence‑‑‑Minor contradictions and omissions in the complainant's testimony were insignificant which were supported by medical evidence recoveries, motive and abscondence of accused‑‑­Conviction and sentence of accused were upheld in circumstances.

Muhammad Ilyas v. The State 1997 SCMR 25: Asghar v. The State PLD 1970 Lah. 878; Mehboobur Rehman v. The State 1996 PCr.LJ 238; Gul Muhammad v. The State 2002 PCr.LJ 1177: Dosa and others v. The State 2002 SCMR 1578; Abdul Ghafoor v. The State 2000 SCMR 919; Muhammad Amin v. The State 2000 SCMR 1784; Jan Muhammad v. Muhammad Ali and 3 others 2002 SCMR 1586; The State v. Mushtaq Ahmad PLD 1973 SC 418; Allah Bakhsh v. Ghulam Rasool and others 1999 SCMR 223; Ghulam Abbas and others v. The State 2001 PCr.LJ 1672; Tariq Parvez v. The State 1995 SCMR 1345; Hakim Ali and others v. The State 1971 SCMR 432; Muhammad Hanif v. The State PLD 1993 SC 895: Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758: Allah Bakhsh v. Shami and others PLD 1980 SC 225: Mehboob Shah v. The State PLD 1987 SC (AJ&K) 47; Aminullah v. The State PLD 1976 SC 632; Government of Sindh v. Sobharo 1993 SCMR 585; Muhammad Ramzan v. The State PLD 1992 SC 302(1) and Shabir Ahmad v. The State 1997 PCr.LJ 1539 ref.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)/34‑‑‑Appreciation of evidence‑‑‑Expert opinion‑‑­Principle‑‑‑Expert's evidence is always treated to be of confirmatory nature qua the ocular testimony and it will not outweigh the trustworthy, consistent and confidence‑inspiring ocular evidence.

Muhammad Hanif v. The State PLD 1993 SC 895 and Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758 ref.

(d) Criminal trial‑‑‑

‑‑‑‑ Prosecution evidence‑‑‑Number of witnesses‑‑‑Prosecution is required to produce best kind of evidence to establish accusation against the accused facing trial, but it is under no obligation to produce a good number of witnesses because it has an option to produce as many witnesses as are considered by it sufficient to prove the prosecution case‑‑‑Quality of evidence and not the quantity which matters.

Allah Bakhsh v. Shammi and others PLD 1980 SC 225 and Mehboob Shah v. The State PLD 1987 SC (AJ&K) 47 ref.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)/34‑‑‑Appreciation of evidence‑‑‑Motive‑‑‑Motive is not a sine qua non for proving, the offence of murder and mere absence of motive is no ground to doubt the truth of the prosecution case.

Government of Sindh v. Sobharo 1993 SCMR 585; Muhammad Ramzan v. The State PLD 1992 SC 302(1) and Shabir Ahmad v. The State 1997 PCr.LJ 1539 ref.

(f) Penal Code (XLV of 1860)‑‑‑

‑‑ ‑S. 302(b)/34‑‑‑Appreciation of evidence‑‑‑Solitary related witness‑‑­Conviction can be maintained on the basis of solitary statement of an eye‑witness and his close relationship with the deceased, by itself, is no ground to exclude his statement from consideration.

Javed Akram for Appellant.

Miss Musrrat Hilali, Addl. A.‑G. for the State.

Asadullah Khan Chamkani for the Complainant.

Date of hearing: 21st November, 2002.

2003 P Cr. L J 900

[Peshawar]

Before Abdur Rauf Lughmani, J

WAZIR KHAN---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.42 of 2002, decided on 30th September, 2002.

Penal Code (XLV of 1860)---

----S. 382---Appreciation of evidence---Star witness of prosecution who was also maker of F.I.R. had made somewhat deviation at the trial---Said witness did not name accused in the initial report---No direct or circumstantial evidence was available to show that accused had hatched up any conspiracy or had consultation with the other six persons---No evidence existed to prove that other six persons shared common knowledge or common intention with the accused---Simply the fact that six persons boarded in the pick-up of complainant, was not enough to burden the accused with commission of crime---Vehicle in question was also not recovered from the accused---Owner of vehicle, during examination-in-chief gave wrong impression that he was also traveling by same vehicle when occurrence took place---Cleaner of vehicle who was with complainant at the time of occurrence was not produced and no explanation had been given as to why he was not produced---Prosecution had miserably failed to bring home guilt to accused beyond any shadow of doubt---Accused was acquitted, in circumstances.

Shujaullah Khan Gandapur for Appellant.

Ihsan-ul-Malik for the Complainant.

Shaukat Hayat Khakwani, D.A.-G. for the State.

Date of hearing: 30th September, 2002.

2003 P Cr. L J 914

[Peshawar]

Before Ejaz Afzal Khan, J

TAHIR WASEEM---Petitioner

Versus

THE STATE---Respondent

Criminal Bail Petition. No.33 of 2002, decided on 27th March, 2002.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.382/452/506---Bail, grant of---Further inquiry---Accused was not named in the F.I.R. and description of accused as to his height etc. did not tally with that of accused as given in the papers of his arrest---In absence of any detail about the kind, weight and other details of ornaments, it could not be said that ornaments sold to goldsmith were stolen ornaments---Such questions requiring further inquiry, accused was admitted to bail.

Shujaullah Khan Gandapur for Petitioner.

Shaukat Hayat Khan Khakwani, D.A.-G. for the State.

Minhajud Din Alvi for the Complainant.

Date of hearing: 19th March, 2002.

2003 P Cr. L J 1071

[Peshawar]

Before Malik Hamid Saeed and Shah Jehan Khan Yousufzai, JJ

AKBAR KHAN---Appellant

Versus

THE STATE and another---Respondents

Jail Criminal Appeal No. 128 of 2001, decided on 27th February, 2003.

Penal Code (XLV of 1860)---

----S. 302---Criminal Procedure Code (V of 1898), Ss.161 & 164--­Appreciation of evidence---Evidence produced by prosecution had revealed that there was no ocular evidence to bring home guilt to accused and prosecution had solely relied upon recoveries effected from spot; production of Kalashnikov by accused; positive report of Arms Expert about empties and Kalashnikov as crime weapon and statement of widow of deceased, recorded during investigation---Statement of widow of deceased recorded under Ss.161 & 164, Cr.P.C. during investigation was of no use for prosecution because her statement under S.164, Cr.P.C. was recorded in absence of accused who was already under arrest in case while she did not appear to face cross-examination and her statement was based on mala fides against accused due to matrimonial difference Venue of occurrence was already known to Investigating Officer and site plan was prepared and place of occurrence, was examined in initial investigation at pointation of accused and no additions 'were made in alleged subsequent pointation of accused---Circumstance that accused led police party to venue of occurrence during interrogation, was of no significance, in circumstances---Positive report of Arms Expert regarding empties and rifle produced by accused, was also not believable because said articles were received in Laboratory by Arms Expert after 8 days from the date those were sent to Laboratory and no explanation was forthcoming from prosecution as to where said empties and crime weapon remained lying for 8 days---Case of prosecution which rested upon circumstantial evidence required to be so transparent that by no hypothesis there could be any doubt regarding any chain of circumstantial evidence, but prosecution had not successfully established guilt of accused---Prosecution had failed to establish motive on part of accused to commit' murder of deceased---Arms Expert was not brought and examined in Trial Court and accused was deprived of a right to cross-examine witness on whose report conviction of accused was recorded---Prosecution having failed to prove case against accused, he was acquitted from charge of murder.

Noor Alam Khan for Appellant.

Jamil Ahmed for the State.

Date of hearing: 27th February, 2003.

2003 P Cr. L J 1086

[Peshawar]

Before Tariq Pervez Khan and Muhammad Qaim Jan, JJ

MIR ZAMAN---Appellant

Versus

ZUBAIR and another---Respondents

Criminal Appeals Nos. 211 to 216 of 2002, decided on 14th January, 2003.

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

----Ss. 12, 13(4), 17, 19, 23 & 28---Jurisdiction of Anti-Terrorism Court---Transfer of case to Anti-Terrorism Court-- -Government having regard to the facts and circumstances of the case, if satisfied that in order to ensure a fair trial or for protection and safety of witnesses any scheduled offence would be tried by an Anti-Terrorism Court not within the territorial jurisdiction of which the offence was committed, but in any other area, Government was empowered to make a declaration to that effect---Whenever such declaration was made, the prosecution in respect of such offence, was to be instituted before that Anti-Terrorism Court with regard to which declaration was made---If one Anti-Terrorism Court having territorial jurisdiction had already commenced the trial, on making declaration by the Government the case would stand transferred to the other Anti-Terrorism Court and on such transfer, the case would proceed from the stage it was pending before the first Court-.-­Similar powers were vested in Administrative Judge of a High Court so nominated while exercising powers under S.13(4) of Anti-Terrorism Act, 1997---Under S.17 of Anti-Terrorism Act, 1997, Anti-Terrorism Court while trying scheduled offence could also try any other offence other than scheduled offence---Anti-Terrorism Court was empowered under S.23 of Anti-Terrorism Act, 1997 to transfer a case to a regular Court, where after taking cognizance the Court was of the opinion that offence was not a scheduled offence, but there was no express provision whereunder an ordinary Court, seized of the matter could send/transfer case to Anti­ Terrorism Court.

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

----S.17(3)(4)---West Pakistan Arms Ordinance (XX of 1965), S.13--­Penal Code (XLV of 1860), Ss.397/412/149---Anti-Terrorism Act (XXVII of 1997), Ss.6, 7, 12, 19, 23, 25 & 28---Appreciation of evidence---Transfer of case to Anti-Terrorism Court ---Challan of case was filed in the Court of Special Judge constituted under Suppression of Terrorist Activities Act, 1975, but later on when Anti-Terrorism Court was established and constituted in the Province, case was transferred to Anti-Terrorism Court---Anti-Terrorism Court could try scheduled offences, but none of the offences against accused persons was scheduled offence---Anti-Terrorism Court to which case was transferred, though could not try the case against accused, but as under provisions of S.19, Anti-Terrorism Act, 1997 Anti-Terrorism Court could directly take cognizance of case, once file was sent to it and it was of the opinion that offence committed by accused fell within purview of S.6 of Anti­ Terrorism Act, 1997 and the moment such opinion was formulated, offence would become one falling within jurisdiction of Anti-Terrorism Court on the basis of S.12 of the said Act---Cognizance taken by Anti­ Terrorism Court on receipt of file from Special Court constituted under Suppression of Terrorist Activities Act, 1975 would not be illegal--­Eleven prosecution witnesses were examined by Judge Special Court and on the basis of offences for which charge was framed, it was a Court of competent jurisdiction because at the relevant time no Anti-Terrorism Court was established in the Province---Cognizance, in circumstances, was rightly taken and so was charge framed and evidence recorded--­Evidence of eleven witnesses recorded by Special Court of competent jurisdiction on basis of charge framed by it, would be legal evidence and Anti-Terrorism Court having taken cognizance, though at later stage, would be justified to proceed from the stage. it took cognizance and could act on evidence already recorded---As offences for which accused were charged under Suppression of Terrorist Activities (Special Courts) Act, 1975, were not scheduled offences, but by virtue of definition as contained in S.6 of Anti-Terrorism Act, 1997 such acts had become act of 'terrorism, it was incumbent upon Anti-Terrorism Court to have refrained charge under Ss.6 & 7 of Anti-Terrorism Act; 1997---Appeals were accepted and conviction and sentence recorded on basis of charge framed by Special Court and conviction and sentence recorded for such offences which were not specifically mentioned in Schedule to Anti ­Terrorism Act, 1997, were set aside and case was remanded to decide afresh after refraining charge and affording parties opportunity of hearing.

PLD 1998 Central Statutes p.3 ref.

Khawaja Muhammad Khan and Gohar Rehman Khattak for Appellant.

Jehanzeb Rahim A.-G. for Respondents

Date of hearing: 8th October, 2002.

2003 P Cr. L J 1103

[Peshawar]

Before Ijaz-ul-Hassan, J

SALEH SHAH alias SAWALI SHAH alias Sawali Badhshah alias Misli Shah---Appellant

Versus

THE STATE and another ---Respondents

Criminal Appeal No. 458 and Criminal Revision No. 141 of 2002, decided on 3rd March, 2003.

Penal Code (XLV of 1860)---

----S. 377---Appreciation of evidence---Accused was directly charged in the report for having committed act of unnatural offence with his co­ villager, a minor boy of 5/6 years of age---Statement of the victim was duly corroborated by medical evidence and motive shown for false implication of accused hardly appealed to reason---Solitary word of the victim corroborated by medical evidence in such-like cases' was considered sufficient to form basis of conviction of accused---Sufficient evidence was on record to connect accused with guilt and prosecution had succeeded to establish its case against accused beyond any reasonable doubt---Accused was rightly convicted by Trial Court, but sentence of 8 years' R.I. awarded to accused being not legal, same was reduced to 6 years' R.I.

Amir Fida Peracha v. Wajahat Ikram and another 1997 PCr.LJ 449 ref.

M. Sohail Akhtar for Appellant.

Tariq Javed, D.A.-G. for the State.

Muzamal Shah Khattak for the Complainant.

Date of hearing: 12th February, 2003.

2003 P Cr. L J 1110

[Peshawar]

Before Ijaz-ul-Hassan, J

OMER KHAN and another---Petitioners

Versus

KHALID MEHMOOD and another---Respondents

Criminal Miscellaneous No.62 of 2003, decided on 17th March, 2003.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/34---Bail in the matter of an accused involved in a non-bailable offence---Considerations to be kept in view by the Court---Mere filing of affidavits for establishing the plea of alibi would not constitute a ground for bail either before the Investigating Officer or the out---Plea of alibi has to be established before the Trial Court.

To consider a bail matter of an Accused involved in a non­ bailable offence, if there appear reasonable grounds for believing that he is guilty of an offence punishable with death or imprisonment for life, he shall not be released on bail unless the case is covered by any of the provisions under subsection (1) of section 497, Cr.P.C. But if it appears to the Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence but there are sufficient grounds for further inquiry into his guilt, the accused shall be released on bail under subsection (2) of section 497, Cr.P.C. The power conferred by section 497, Cr.P.C. is not arbitrary power. It has to be exercised by reference to material placed before the Court and as to what that material shall be. The material would consist of accusation made in the report to the police, nature and credentials of evidence with the prosecution proposed to lead in the case and all such relevant circumstances surrounding the evidence.

At the bail stage a deep scrutiny of evidence ocular or circumstantial is neither possible nor desirable. The close scrutiny of evidence is only possible and admissible after the statements of witnesses are recorded at the trial and they are subjected to cross-examination. At the bail stage if that is a matter which, if remains un-rebutted, prima facie, connects the accused person with an offence punishable with death or imprisonment for life, he must be refused the concession of bail.

Mere filing of affidavits for establishing the plea of alibi would not constitute a ground for bail either before the Investigating Officer or the Court. Such plea has to be established before the Trial Court.

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

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324/34---Bail, refusal of ---Plea of alibi---Effect---Accused alongwith two absconding co­ accused were directly nominated in the promptly lodged report for causing fire-arm injuries to the victim resulting into his death in the hospital---Eye-witnesses had fully supported the charge and medical evidence was in, consonance with the ocular account of the incident--­Sufficient material on the record therefore was available which satisfied the mind of the Court regarding participation of the accused in the murder of the deceased and attempted murder of the complainant and his aunt---Plea of alibi raised by the accused though could not be rejected out rightly and could be gone into for the purpose of grant or refusal of bail but it was equally true that in the present case, the theory of alibi could not be considered sufficient for grant of bail---Plea of alibi was still to stand the test of scrutiny on the basis of evidence---No case for grant of bail having been made out, the Courts below rightly declined the bail for solid reasons which did not call for interference of the High Court.

Malik Muhammad Salheen and others v. Arshad Siddiqi and 2 others 1997 SCMR 1829 ref.

Shaukat Hussain for Petitioner

Mrs. Mussrat Hilali, Addl.-A.-G. for the State.

Muhammad Amin Lachi for the Complainant.

Date of hearing 17th March, 2003.

2003 P Cr. L J 1123

[Peshawar]

Before Mian Shakirullah Jan, CJ and Ijaz-ul-Hassan, J

BAKHT JAMAL---Appellant

versus

THE .STATE ---Respondent

Criminal Appeal No. 325 of 2001, decided on 4th March, 2003.

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

----Ss.6, 7, 8 & 9(c)---Customs Act (IV of 1969), Ss.2(s) & 156(1) (8)(89)---Appreciation of evidence---No contradiction on material points in the statements of prosecution witnesses had been found---Said witnesses were put to lengthy cross-examination by the defence, but they withstood the test on all material and relevant aspects---Nothing favourable to the accused could be elicited from the mouth of said prosecution witnesses so as to cause dent in prosecution case---Nothing had been brought on record by the accused to substantiate his assertion to the effect that he had been implicated in the case falsely and real culprit had been brought on record by the accused to substantiate his assertion to the effect that he had been implicated in the case falsely and real culprit had been allowed an opportunity to make good his escape in the nearby jungle by complainant police officer---No suggestion to such assertion was put to the witnesses when they were in the witness-box---When a specific plea was advanced by the accused, then burden shifted to him to prove same, but he failed, to do. so---Huge quantity of Charas could not

be thrust upon the accused in absence of any tangible cogent and concrete enmity, which had not been proved, by the accused---No proper defence had been set up before Trial Court by the accused---Prosecution having proved its case beyond reasonable doubt against the accused,, conviction and sentence recorded by Trial Court against the accused, could not be interfered with in appeal, especially, when accused had failed to point out any illegality by way of misreading or non-reading of . evidence by the Trial Court, warranting interference by High Court in its Appellate jurisdiction.

Muhammad Ismail and others v. The State 2002 YLR 1743 ref.

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

----S.397---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8 & 9(c)---Customs Act (IV of 1969), Ss.2(s) & 156(1)(8)(80)---Benefit of S.397, Cr.P.C.---Claim for---Accused had asserted that Trial Court in subsequent trial had failed to give him benefit of 5.397, Cr.P.C. in violation of codified law---Validity---Accused in the present case had been convicted and sentenced for two different offences and Court under S.397; Cr.P.C. was empowered to direct separate sentences in separate trials to run concurrently when accused was already undergoing a sentence of imprisonment---Accused had failed to show that the Trial Court was requited' to give benefit of S.397, Cr.P.C. and by refusing same it had violated law as asserted by the accused---Assertion of the accused was misconceived, in circumstances.

(c) Criminal trial---

---- Specific plea by accused--- Burden to prove---When a specific plea was advanced by the .accused burden then shifts to him to prove the same.

Malik Haroon lqbal for Appellant.

Hamid Farooq Durrani, D.A.-G. for the State.

Date of hearing: 4th March, 2003.

2003 P Cr.L J 1139

[Peshawar]

Before Ejaz Afzal Khan, J

JAMEEL KHAN----Petitioner

Versus

THE STATE-----Respondent

Criminal Miscellaneous No.44 of 2003 decided on 28th February 2003.

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

----S.497---Control of Narcotic Substances Act (XXV of 1997), Ss.6,7, 9 & 21---Bail, grant of---Search and consequent recovery in case having been made in contravention of provisions of S.21 of Control of Narcotic Substances Act, 1997, such fact alone would entitle accused to be released on bail.

Nasrullah v. The State PLD 2001 Pesh. 152 and Gharibullah v. The State 2002 PCr.LJ 677 ref.

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

----S.21---Contravention of provisions of S.21 of Control of Narcotic Substances Act, 1997---Failure to conduct search in compliance with the provisions of S.21 of Control of Narcotic Substances Act, 1997, no doubt could result in release on bail and later on acquittal of accused and thereby could defeat the very purpose of the statute it was enacted for, but the Courts of law were bound to implement the statute otherwise it would amount to be more loyal than the king by importing what was not in the statute---If any anomaly was created through its strict interpretation the very purpose of the statute would be defeated--­Legislature though could well get it amended but so long as it was a part of the statute, it had to be interpreted as it was.

Bahlol Khattak for Petitioner.

Malik Akhtar Khan for the State.

Date of hearing: 28th February, 2003.

2003 P Cr. L J 1149

[Peshawar]

Before Ejaz Afzal Khan, J

SHER KHAN and 2 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 66 of 2003, decided on 17th March, 2003.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.324 & 34---Bail, grant of--­Further inquiry---Three persons had been charged for causing two injuries on the person of the complainant---Whether it could be the doing of one person or more than one; whose fire turned effective, if at all they were present and whether they could be saddled with the intention to kill the complainant when the injuries were not on the vital part of the body, were the questions which essentially required further inquiry particularly when the probability of false implication in view of the tendency of the people to throw wide net of implication to rope, in even those who had no Land in the commission of the crime, could not be, ruled out---Accused were directed to be released on bail in circumstances.

Suhail Akhtar for Petitioners.

Abdul Karim for the State.

Zar Muhammad Afridi for the Complainant.

Date of hearing :17th March 2003

2003 P Cr. L J 1165

[Peshawar]

Before Mian Shakirullah Jan, C.J. and Ijaz Afzal Khan, J

MAQSOOD KHAN---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No. 52 and Murder Reference No.3 of 2002, decided on 4th March, 2003.

Penal Code (XLV of 1860)--

----S. 302(b)---Appreciation of evidence ---F.I.R. which subsequently was treated as a `dying declaration' had shown that deceased before his death had given a simple and straightforward account of the occurrence, though he had not mentioned the details about the origin of the altercation and cause thereof---Only witness in the case, had also given a simple and straightforward narration of the occurrence which inspired confidence---Ocular account, as spelt out from dying declaration and statement of prosecution witness was, perfectly in accord with the medical evidence---Contention that dying declaration was not free from tinge of prompting, was repelled, because nothing was on record to show that persons accompanying deceased to the Police Station had a motive to falsely implicate accused---Absence of enmity between the parties, was another factor which had ruled out possibility of prompting deceased to falsely implicate the accused---Possibility of substitution was reduced to nil as accused was single and occurrence had taken place in broad ­daylight---Distance shown in the site-plan could not be of much consequence as site-plan was not a substantive piece of evidence, unless the witnesses admitted when confronted with its details, that it was prepared at their instance, but in the present case eye-witness was not confronted therewith---Prolonged, noticeable and unexplained abscondence of accused for more than four years, would go a long way to corroborate and strengthen the truth of prosecution version---Charge against accused having been proved beyond any shadow of reasonable doubt, accused had rightly been convicted by the Trial Court--­Cause of altercation or what preceded it as a factor constituting motive to kill deceased, was shrouded in mystery as none of the witnesses including dying declaration of deceased had shed sufficient light on that aspect of case---Accused despite being armed with Klashnikov, did not hit any vital part of the body of deceased and did not repeat fire notwithstanding the fact that there was none to intervene--­Case against accused in circumstances was not such where an extreme penalty of death could be awarded---Death sentence awarded to accused by Trial Court, was converted into imprisonment for life, in circumstances.

Zarif Khan v. The State PLD 1977 SC 612 ref

Muhammad Zahoorul Haq for Appellant.

Ejaz Khan for the State.

Qazi Muhammad Anwar for the Complainant.

Date of hearing: 18th February, 2003.

2003 P Cr. L J 1202

[Peshawar]

Before Qazi Ehsanullah Qureshi and Ejaz Afzal Khan, JJ

MUHAMMAD NAZIR KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Quashment Petition No.19 of 2001, decided on 24th January, 2002.

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

----Ss. 514, 498 & 561-A---Penal Code (XLV of 1860), Ss.302/324/148/ 149---Forfeiture of surety bond---Petitioner after getting successive transitory pre-arrest bail orders from different Courts appeared before Trial Court on the date fixed for his appearance in last bail order---Trial Court initiated proceedings against petitioner and his sureties under S.514, Cr.P.C., for his failure to appear on the date fixed in such first bail order---Validity---Record showed that on expiry of period of one order passed by one Court, petitioner had obtained another order from another Court of competent jurisdiction---Petitioner had neither tried to abscond or misuse process of Court nor he or his sureties had violated terms of bond---Trial Court had declined relief of pre-arrest bail to petitioner without seeing its record and giving him an opportunity to justify his claim---Such conduct of Trial Court was not in harmony with dignity and decorum of Courts, which are sanctuaries meant to protect rights of liberties of people, and not to curb and curtail them by resorting to a process unbecoming of them High Court accepted petition and quashed impugned proceedings.

(b) Administration of justice---

----Courts are sanctuaries meant to protect rights and liberties of people, and not to curb and curtail them by resorting to a process unbecoming of them.

Saleemullah Khan Ranazai for Petitioner.

Shaukat Hayat Khan Khakwani, Dy. A.-G. for the State.

Date of hearing: 23rd January, 2001.

2003 P Cr. L J 1295

[Peshawar]

Before Shah Jehan Khan and Ijaz-ul-Hasan, JJ

MURID KHAN and another---Appellants

Versus

THE STATE---Respondent

Jail Criminal Appeal No. 45 of 2003, decided on 2nd April, 2003.

Penal Code (XLV of 1860)---

----Ss. 302/324/148/149---Appreciation of evidence ---Abscondence--­Motive---Accused and acquitted co-accused had been assigned similar role of firing culminating in murder of deceased and no recognizable difference was in roles assigned to accused and acquitted co-accused--­Benefit of judgment whereby co-accused were acquitted, would also go to accused---Prolonged noticeable abscondence of accused per se would 'not prove case of prosecution against accused because abscondence at the most could be taken as corroborative of charge and not evidence of charge---In absence of any other corroborative evidence, evidence of abscondence, even if found convincing, would not be sufficient by itself to warrant conviction of accused on a charge of murder ---Abscondence in the present case though was for a very long time, but abscondence alone, could not be a substitute for real evidence---Motive attributed to accused persons had not been satisfactorily proved---Even otherwise motive alone was not sufficient to lay, foundation for conviction of an accused on capital charge of murder---Judgment of Trial Court was set aside and accused were acquitted of the charge.

Talib Hussain and another v. The State PLD 1958 (W.P.) Kar. 383, Siraj Din v. Kala and another PLD 1964 SC 26 and Taj Muhammad v. Resham Khan and others 1986 SCMR 823 ref.

Abdul Fayaz Khan for Appellants.

Muhammad Jamil Qamar for the State.

Date of hearing: 27th March, 2003.

2003 P Cr. L J 1302

[Peshawar]

Before Ijaz-ul-Hassan, J

ABDUL HAMEED KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.77 of 2003, decided on 3rd March, 2003.

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

----Ss. 496 & 497---Grant of bail in bailable and non-bailable offences--­Principle---Admission of accused on bail in bailable offence was a right and not favour, whereas in non-bailable offences grant of bail was not a right, but was concession/grace---Grant of bail was a rule and refusal an exception in non-bailable offences falling in second category (punishable with imprisonment for less than 10 years).

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.419/420/4681471---Prevention of Corruption Act (II of 1947), S.5(2)---Bail, grant if--­Further inquiry---Accused though was directly nominated as of accused persons in F.I.R. and a special role had been attributed to him in commission of crime, but co-accused who was assigned similar ; ole qua accused, had already been enlarged on bail by Trial Court and plea of accused for bail had been refused---Mere fact that large number of cases of similar nature were pending against accused in different Courts, by itself could not be considered a good ground to refuse relief of bail to accused---Offences attributed to accused were not covered by prohibitory clause of S.497, Cr.P.C.---Co-accused assigned similar role qua accused having already been enlarged on bail, accused was also entitled to bail in view of principle of consistency---Case of accused necessitated further inquiry as contemplated under S.497(2), Cr.P.C.---Accused having succeeded to make out a case for grant of bail, he was ordered to be released on bail.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Muhammad Sadiq Javeed v. The State PLD 1969 Pesh. 12; Imtiaz Ahmad and another v. The State PLD 1997 SC 545 and Tubbasam Ahmad Qureshi v. The State 2000 PCr.LJ 105 ref.

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

----S. 497---Grant of bail---Principles---Evidence or material brought on record by prosecution, at bail stage, was not to be appreciated in its minute details, rather same was to be taken view of tentatively--­Appreciation of evidence and drawing of conclusion therefrom, was exclusive function of Trial Court.

Qazi Muhammad Anwar for Petitioner.

Tariq Javed, Dy. A.-G. for the State.

Date of hearing: 3rd March, 2003.

2003 P Cr. L J 1309

[Peshawar]

Before Tariq Parvez Khan and Ijaz-ul-Hassan, JJ

FAZAL WAHID---Appellant

Versus

FIDA MUHAMMAD and another---Respondents

Criminal Appeal No.61 of 2000, decided on 27th February, 2003.

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

----S. 302/34---Appreciation of evidence---Essential requirement for the Court was to satisfy itself whether the eye-witnesses were natural and their presence on the spot could reasonably be believed and that whether their testimony was free from any kind of intrinsic improbabilities and in case of an interested witness whether any independent corroboration was forthcoming---Testimony of an interested eye-witness could not outrightly be rejected and in certain circumstances it could be made basis of conviction of an accused provided it received corroboration through other circumstantial evidence---Unless substantive or direct evidence was available, conviction could not be based on any other type of evidence, however, convincing it might be---In absence of any other corroborative evidence, the evidence, of eye-witnesses, even if found convincing would not be sufficient by itself to warrant the conviction of the accused on a charge of murder---Prosecution was duty bound to prove its case to the hilt by producing cogent and unimpeachable evidence.

1991 SCMR 643 and 1997 SCMR 290 ref.

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

----S. 302/34---Appreciation of evidence---Claim of complainant and prosecution witness that they were accompanying the deceased at the time of occurrence and had seen the accused firing at the deceased, stood belied by a host of circumstances---Both the said witnesses had made improvements in order to 'lend strength to the prosecution story--­Murasila' at police post at the instance of the complainant showed that the weapons of offence allegedly carried and used by the accused in the commission of crime, were not specified in the F.I.R. and purpose of the complainant party for meeting in theBaithak' of the father of prosecution witness was also not given---Prosecution witnesses had claimed that they had identified the accused in the light of electric bulbs, which were shedding light at the time of occurrence, but existence of electric bulbs had not been mentioned in the said report---Improvements appeared to have been made in order to exclude the chances of mistaken identity---Medical evidence and site plan prepared also falsified the claim of the complainant having seen the occurrence---Sizes of wounds found on the person of the deceased during post mortem examination, had clearly indicated that weapons of different calibres were used in the commission of crime---Empties recovered from the distance of nine paces from the place of the occurrence had not been sent to Fire Arm Expert to ascertain as to whether same had been fired from one or more weapons---Such lapse on the part of the prosecution was fatal and had caused dent to the prosecution case---Occurrence had not taken place as alleged and it appeared that deceased was done to death by some unknown assailants and the accused and acquitted co-accused were charged on mere suspicion---Evidence led by the prosecution was highly discrepant and no implicit reliance could be placed thereon--­Abscondence in case though was for a very long time for about three years, but abscondence alone could not be a substitute for real evidence ---Abscondence would be taken as corroborative piece of evidence only when there was convincing and unchallenged evidence led by prosecution---Conviction and sentences recorded against the accused by the Trial Court, were set aside and he was acquitted of the charge--­Acquittal of co-accused by the Trial Court not suffering from any illegality, could not be interfered with by High Court and it could not be said that a grave miscarriage of justice had occurred or Trial Court had exercised jurisdiction illegally or with material irregularity.

Pesham Khan and 7 others v. The State PLD 1984 Pesh. 156; Zaley Mir alias Zaley v. State PLJ 1999 Cr.C. Pesh. 1022 and Muhammad Aslam v. State 1997 PCr.LJ 2052 ref.

(c) Abscondence---

----Abscondence would be taken as corroborative piece of evidence only when there was convincing and unchallenged evidence led by prosecution.

PLD 1964 SC 26; PLD 1990 SC 201 and 1986 SCMR 823 ref.

Asadullah Khan Chamkani for Appellant.

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

Muhammad Salim Khan for the Complainant.

Date of hearing: 21st January, 2003.

2003 P Cr. L J 1366

[Peshawar]

Before Khalida Rachid, J

THE STATE---Appellant

Versus

QADAR GUL and another---Respondents

Criminal Appeal No.89 of 1993, decided on 9th June, 2003.

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

----S. 417---Customs Act (IV of 1969), Ss.2(s), 156(1)(89), 157, 165 & 178---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4--­Appeal against acquittal---Allegation against accused persons was that heroin powder of foreign origin weighing 5.700 Kilograms and 190 yards cloth of foreign origin were recovered from the secret compartments of bus driven by the accused---Special. Judge acquitted the accused from charge concluding that both the seized items were not proved to be of foreign origin---Accused in their confessional statements recorded by Customs Official under S.165 of Customs Act, 1969 had admitted their guilt---Prosecution had reasonable suspicion and belief that accused were carrying heroin specified in S.2(s) of Customs Act, 1969 and notified thereunder, declaring the same to be smuggled---Not necessary for prosecution, in circumstances, to prove that heroin recovered from the accused was of foreign origin---Accused had to produce evidence to rebut prosecution version, but they failed to do so---Trial Court found accused to be in possession of seized goods, but released them simply concluding that seized items could not be proved to be of foreign origin---Accused having been found in possession of heroin powder duly notified under S:2(s) of Customs Act, 1969, appeal against acquittal of accused was allowed and accused were convicted under S.156(1)(89) of Customs Act, 1969 and sentenced to 6 years R.I.

State v. Umar Hayat and another PLD 1992 SC 393 Muhammad Farooq Afridi v. State 2002 PCr.LJ 196 ref.

Salahuddin Khan, Dy. A.-G. for the State.

Muhammad Tehmash Khan for Respondents

Date of hearing: 14th April, 2003.

2003 PCr. LJ 1379

[Peshawar]

Before Nasir-ul-Mulk and Qazi Ehsanullah Qureshi, JJ

TILA MUHAMMAD ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.185 of 2002, decided on 5th June, 2003

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

----Ss. 6, 7, 8 & 9---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4---Appreciation of evidence---Prosecution had not been able to establish with any reasonable certainty as to whether all or which of the three accused persons could be attributed the physical or constructive possession of narcotics---Investigating Officer stated that narcotic substance was recovered from residential room of accused, but in cross-examination he had stated that though the narcotics were not in physical possession of any of -the accused, but they were present at the tithe of recovery from the residential room of .accused---Said statement did not connect all or any of the accused persons with possession of the contrabands---Apart from statement of Investigating Officer that room from which recovery was effected was the bedroom of accused or all of the three accused jointly, no other evidence was on the record in that respect---Prosecution having not been able to prove case against accused beyond reasonable doubt, accused was entitled to benefit of doubt.

Noor Alam Khan and S. Wilayat Ali Shah for Appellant.

Tariq Javed Khan, A.A.-G. for the State.

Date of hearing: 5th June, 2003.

2003 P Cr. L J 1387

[Peshawar]

Before Tariq Parvez Khan and Qazi Ehsanullah Qureshi, JJ

SARWAR---Appellant

Versus

STATE---Respondent

Jail Criminal Appeal No.230 of 2002, decided on 22nd May, 2003

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

----S. 9(c)---Appreciation of evidence---Allegation against accused was that while travelling in a bus, Charas was recovered from a wooden box of which accused had claimed ownership and which box was opened by the key supplied by accused---Police officer as prosecution witness had admitted in his cross-examination that absconding accused was real person who was owner of the Charas and that the said absconding accused was a notoriously known person---Prosecution witness had also admitted that during interrogation stand taken by accused was that accused was brought to bus stand by the said absconding accused who also arranged ticket for him---Admission so made by the prosecution witness had found -total corroboration from the confession of accused--­Confession of accused appeared to be exculpatory and accused had shown his total ignorance about contents of wooden box and such version was supported by Investigating Officer---Possession of narcotics with conscious knowledge, could not be attributed to the accused, in circumstances---Accused was a man of advance age of more than seventy years---Benefit of doubt was extended to the accused in. absence of any evidence showing that accused himself was involved in the drug trafficking---Conviction and sentence awarded to accused by Trial Court were set aside and he was acquitted of charge.

Noor Alam Khan for Appellant.

Tariq Khan Kakar for the State.

Date of hearing: 22nd May, 2003.

2003 P Cr. L J 1392

[Peshawar]

Before Dost Muhammad Khan, J

ZAR GUL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.315 of 2003, decided on 23rd May, 2003.

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

----Ss. 9, 20, 21 & 25---Search proceedings---Accused from whom more than 2 Kgs. Charas had allegedly been recovered had contended that despite having ample opportunity to procure and cite two witnesses from the public, no effort was made by raiding officer in that respect--­Provisions of Ss.21 & 25 of Control of Narcotic Substances Act, 1997 though had provided exception to universal principle of law on question of search of any building, enclosure etc. by police officer but Legislature in its wisdom, keeping in view gravity and menace as well as evil effects of tremendous increase- in trafficking and sale of narcotics had created exceptions which were justified; but still judicial emphasis had long been that to give credibility to search and recovery made by police officer, association of two respectable persons from locality was not. an unessential formality---Exceptional powers given to police officer of rank of Sub-Inspector under S.21 of Control of Narcotic Substances Act, 1997 were not absolutely unqualified because it had been made mandatory for such officer to show that in case of obtaining search warrant as required under S.20 of the said Act, either narcotics could have been concealed or destroyed or evidence to that effect could have been caused to disappear or that adopting such process might have resulted in escape of offender--­Legislature had not given a free licence/authority to such police officer to conduct search in private buildings like residential houses, according to his own whims and wishes---Such actions of Police Officer were definitely controlled by check and balance system---Such officer, while exercising exceptional powers, was required to act strictly within the ambit of S.21 of Control of Narcotic Substances Act, 1997, otherwise his action would be susceptible to serious doubts besides attracting mischief of irregularity to such proceedings.

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

----Art. 4---Meaning and import---Abiding by law or complying with law---To abide by law or to comply with law being synonymous terms, was a firm command of the Constitution which meant and required complete obedience and full compliance thereof---No one was permitted to be selective by making pick and choose in that regard nor piecemeal application of law was allowed.

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

-----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.9, 20, 21 & 25---Bail, grant, of---Further inquiry---More than 2 Kgs. of Charas was allegedly recovered from residential house of accused, but police, despite having an ample opportunity to procure and cite two witnesses from locality, had made no effort to do that and no reasons as required under subsection (2) of S.21 of Control of Narcotic Substances Act, 1997 had been recorded to justify action taken under colour of so ­called urgency/emergency---No arrest card of accused was available nor any point had been given to the place of arrest of accused in the site ­plan---House in question from where Charas was allegedly recovered, consisted of four residential rooms and strong probability was that accused alone was not the sole inmate of house---Exclusive liability of accused for recovered Charas, was a matter which required further inquiry--Alternate punishment provided for offence was 14 years' R.I. at the most and in given circumstances awarding of maximum punishment was equally a matter of doubt---Accused was granted bail, in circumstances.

Muhammad Siddique Haider Qureshi for Appellant.

Ghulam Shoaib Jalli for the State.

Date of hearing: 23rd May, 2003.

2003 P Cr. L J 1404

[Peshawar]

Before Ijazul Hassan, J

ZAR GULAB and 6 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.272 of 2003, decided on 19th May, 2003.

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

----S. 497---Bail, grant of---Principles---Duty of Court --- Abscondence of accused---Effect---Court before releasing accused on bail was required to apply its mind keeping in view provisions contained in subsections (1) & (2) of 5.497, Cr.P.C. in their totality---Sine qua non, for releasing an accused on bail was that Court should come to the conclusion that no reasonable grounds existed to believe that he had committed a non­ bailable offence as provided in subsections (1) & (2) of S.497, Cr.P.C. or to prevent the abuse of process of Court or to do justice, keeping in view the particular facts of each case---Bail in the case of commission of a non-bailable offence and particularly falling in prohibitory clause in subsection (1) of 5.497, Cr.P.C. was not to be granted as a matter of course, by simply observing that it was a case of further inquiry and without keeping in view entire provisions of S.497, Cr.P.C.---Material available on record at the bail granting stage was to be sifted in order to establish whether prima facie accused before Court could be connected with the crime in question and hence no detailed inquiry was to be made by the Court---Evidence of parties could not be assessed/tested in depth at the bail stage---Purpose of the principle was to avoid expression of opinion one way or the other on merits of the case---Fugitive from law would lose some of normal rights granted by procedural and substantive law and noticeable abscondence of accused would disentitle the absconder to concession of bail notwithstanding merits of case---High Court normally would not interfere with exercise of discretion in the matter of bail, but when interference was inevitable, it was under duty to do so in order to secure ends of justice and to do complete and substantial justice to the parties.

(b) Criminal trial---

---- Procedure-After receiving evidence it was for Trial Court to give weight to prosecution evidence in its own wisdom.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/109/148/149---Bail, grant of---Further inquiry ---Abscondence- of accused---Effect---Accused had been mentioned in F.I.R. for commission of offence and were charged for firing culminating into murder of deceased---Said allegations were surely sufficient to demonstrate that case against accused was -not of further inquiry within meaning of S.497(2), Cr.P.C. for admission of accused to bail---One of accused persons had sought bail on plea of alibi, but said plea was still to stand the test of scrutiny on basis of evidence and could not at all be gone into for purpose of grant or refusal of bail--­Accused, in the present case, disappeared from village after occurrence and were arrested subsequently---Accused being fugitive from law would lose some of their normal rights granted by procedural and substantive laws and their noticeable abscondence would disentitle them to concession of bail notwithstanding merits of case---Orders passed by Courts below refusing bail to accused were neither illegal nor perverse warranting interference of High Court---Bail had been declined to accused persons by Trial Court for valid and cogent reasons and accused had not been able to successfully demonstrate existence of circumstances justifying grant of bail---Mere fact that deceased was involved in a number of murder cases and he was declared a proclaimed offender, would not permit any person to take law into his own hands and kill him---Bail application of accused was dismissed, in circumstances.

Muhammad Shafique v. Muhammad Hanif and another 1970 SCMR 143 ref.

Asadullah Khan Chamkani for Petitioners

M. Waheedullah Khan for the State.

Khawaja Muhammad Khan for the Complainant.

Date of hearing: 19th May, 2003.

2003 P Cr. L J 1574

[Peshawar]

Before Malik Hamid Saeed, J

JAN ALAM---Petitioner

Versus

MUNTAZIR alias MUTAZIR and another---Respondents

Criminal Revision No.59 of 2001, decided on 16th June, 2003.

Penal Code (XLV of 1860)---

----Ss. 324/334/337-R---Awarding of compensation for hurt---Right leg of complainant-had been removed as a result of fire-arm injury caused to him by accused---Trial Court held accused guilty of charge and convicted him, but had not awarded proper compensation to be given by accused to complainant as provided under second part of S.324, P.P.C. for hurt caused by accused to complainant---Injury inflicted by accused having caused permanent paralyzation and incapacitation to the complainant, Trial Court while awarding conviction and sentence to accused under S.324, P.P.C., was required to have kept in mind provisions contained in second part of said section which had provided compensation to victim for hurt caused---Provisions of Ss. 334 & 337-R, P.P.C. had provided that offender would be liable to payment of Arsh, which was half of Diyat amount---Number of accused persons, in the present case, being four, each accused was liable to payment of 1/4th of half of Diyat amount as Arsh to victim/complainant---In view of permanent nature of disability of complainant to pursue his ordinary pursuits of life, no mitigating circumstance existed in favour of accused for not allowing compensation to complainant for hurt caused to him as required under S.324, P.P.C.---Accused was directed to deposit amount of Arsh in Trial Court within specified period to be given to the complainant.

Muhammad Iqbal Taurangzai for Petitioner.

S. Mir Muhammad Khan for Respondent.

Malik Akhtar for the State.

Date of hearing: 16th June, 2003.

2003 P Cr. L J 1578

[Peshawar]

Before Tariq Pervez Khan and Ijaz-ul-Hassan, JJ

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

Versus

GUL FARAZ---Respondent

Criminal Appeal No.205 of 1994, decided on 3rd June, 2003.

Penal Code (XLV of 1860) ---

----Ss. 302/324/34---Criminal Procedure Code (V of 1898), S.417--­Appeal against acquittal---Trial Court, in view of ocular, medical and recovery evidence on record, had rightly concluded that testimony of complainant, who was father of deceased and that of prosecution witness who was brother of deceased, were contradictory and discrepant qua the accused---Trial Court hid rightly discarded such evidence---Prosecution primarily was supposed to establish guilt against accused beyond shadow of reasonable doubt by bringing trustworthy, convincing evidence for the purpose of awarding conviction---To convict a person on a capital charge, evidence should be of very high quality and of good standard, which was not available in the present case---Reasons recorded by Trial Court for acquittal of accused were based on correct appraisal of evidence which did not provide any ground for interference of High Court in appeal.

Elahi Bakhsh v. Rab Nawaz and another 2002 SCMR 1842; Muhammad Younas and another v. The State and others 1990 SCMR 1272 and Mst. Roheeda v. Khan Bahadur and another 1992 SCMR 1036 ref.

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

Lal Jan Khattak for Respondent.

Date of hearing: 3rd June, 2003.

2003 P Cr. L J 1584

[Peshawar]

Before Mrs. Khalida Rachid, J

RAZ MUHAMMAD alias RAM JANEY---Petitioner

Versus

THE STATE and another---Respondents

Bail Application No. 331 of 2003, decided on 16th June, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(1), third proviso [since omitted by Code of Criminal Procedure (Amendment) Ordinance (LIV of 2001)]---Penal Code (XLV of 1860), Ss.302/324/34---Bail on ground of statutory delay---Bail had been sought in case on two grounds; firstly that accused was arrested prior to amendment whereby third proviso to S.497(1), Cr.P.C. regarding statutory delay was deleted and secondly that co-accused having been granted bail, accused was also entitled to same treatment as per rule of consistency---Both contentions of accused were misconceived and ill­-founded as accused was arrested after his abscondence for a period of six years---Though at time of arrest of accused said third proviso to S.497(1), Cr.P.C. was in existence, but by the time, accused matured his continuous detention of two years in jail, third proviso stood omitted through amendment---Rule of consistency too was not attracted in circumstances of case as situation in case of accused was absolutely different---Benefit of third proviso to S.497(1), Cr.P.C. being not available to accused, his bail application was dismissed.

Asif Ali Zardari v. The State 1993 PCr.LJ 781; Naseer Khan v. Mairaj Nabi Criminal Miscellaneous No. 1135 of 2001 and Bahar Gul and another v. The State Criminal Miscellaneous No. 134 of 2002 ref.

Abdul Fayaz Khan for Petitioner.

Zafar Abbas Mirza for the State.

Imdad Hussain Adil for the Complainant.

Date of hearing: 9th June, 2003.

2003 P Cr. L J 1678

[Peshawar]

Before Mian Shakirullah Jan, C.J. and Dost Muhammad Khan, J

MUHAMMAD ALI ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.341 and Murder Reference No.22 of 2002, decided on 12th June, 2003.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Besides ocular testimony of complainant, evidence of two prosecution witnesses who apprehended the accused then and there after commission of crime, possessed a high degree, of credibility---Both said prosecution witnesses were subjected to taxing and searching cross-examination, but their testimony could not be shattered in any manner---Presence of said witnesses at place of occurrence and arresting of accused with crime weapon, had fully been established---Recovery of crime-empties from the spot had provided further corroboration to prosecution version---Recovery of motorbike of accused from crime spot was yet another circumstance fully endorsing prosecution version---Said motorbike had been attributed by prosecution witnesses to accused which version too had gone unchallenged--­Complainant whose presence at place of occurrence had fully been established had given sufficient details of occurrence and had also explained post occurrence events including the arrest of accused which took place in quick succession---Testimony of complainant which otherwise went un-shattered, could not be doubted on any premises--­Recovery of three crime empties from the spot was fairly established and facts on record had excluded possibility of fabrication and plantation--­Mere delay in sending empties and pistol to Expert by itself was not sufficient to discard their evidentiary value when no serious suggestion had been put to Incharge of Investigation about its substitution or tampering with the same---Prosecution, in circumstances, having succeeded in proving guilt of accused beyond any reasonable doubt, he had rightly been convicted by the Trial Court---Accused alongwith his absconding co-accused had acted desperately and in a cruel manner, not only by causing murder of deceased who was their real target, but also causing murder of another innocent person and also inflicting injuries on other innocent victims---In absence of any mitigating circumstance, death sentence awarded to accused could not be reduced--­Death sentence awarded to accused by Trial Court was maintained and reference for confirmation of death sentence sent by Trial Court was confirmed.

Asadullah Khan Chamkani for Appellant.

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

M. Maqsood Aziz for the Complainant.

Date of hearing: 12th June, 2003.

2003 P Cr. L J 1684

[Peshawar]

Before Mian Shakirullah Jan, C.J. and Dost Muhammad Khan, J

YOUNAS KHAN---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.489 and Murder Reference No.45 of 2002, decided on 30th April, 2003.

Penal Code (XLV of 1860)---

----S. 302---Criminal Procedure Code (V of 1898), Ss.265-E, 265-F & 364---Appreciation of evidence---Trial of case---Recording of confession of accused---After completion of investigation, charge-sheet against accused was framed which was denied by accused and he claimed trial--­Subsequently for unknown reasons, accused disclosed before Trial Court that he wanted to plead guilty to charge and to that effect his short statement was recorded---After recording statement of accused, case was posted on which date accused was convicted and sentenced to death on two counts---Accused, in circumstances, was convicted and sentenced on plea of guilty recorded by Trial Court---Validity---When accused would deny the charge and claim trial, then the Court was essentially required to hold the trial and stage of recording the plea of guilt of accused was over and was no more available to the Court---Right of an accused to claim trial was an indefeasible right and it was for the accused alone to forfeit or surrender such right at a later stage of trial and if he communicated to the Court to that effect and intended to admit his guilt, then the proper legal procedure was to record a full statement/confession of accused as nearly as possible in the same manner as laid down in S.364, Cr.P.C.---Court would also probe into the mind of accused as to what were the reasons which had prompted or induced him to making a confession at a later stage when he had earlier denied the charge against him---Said exercise must be carried out because of the requirements of principles of justice as the Court must be satisfied that subsequent confession made by accused at a later stage of trial was free from any promptness or other inducing cause both from inside and outside quarters and then Court would be within its jurisdiction to record conviction, but Court was debarred from re-embarking on premises of S.265-E, Cr.P.C. when accused would admit his guilt at a later stage of the trial because recording of conviction on a plea of guilt was confined and limited to the stage of framing and explaining formal charge to an accused---Court, in a case/offence carrying capital punishment, would not record conviction on mere plea of guilt of accused made at a stage of framing of formal charge against accused, but would further satisfy its judicial mind about the guilt of accused by recording prosecution evidence---Trial Court in the case of accused having failed to comply with said mandatory provisions of law and settled principles of justice, conviction and sentence of accused awarded by it were not sustainable in law---Conviction and sentence of accused were set aside and case was remanded for trial de novo.

Afridi Khan for Appellant.

Ejaz Khan for the State.

Date of hearing: 30th April, 2003.

2003 P Cr. L J 1691

[Peshawar]

Before Ijaz-ul-Hassan, J

SAFIR ULLAH---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Application No.392 of 2003, decided on 6th June, 2003.

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

----S. 497---Grant of bail, principles of---Further inquiry---Accused would only be entitled to the discretionary relief of bail when on tentative assessment of material on record, Court would reach the conclusion that no reasonable grounds existed for believing that accused was guilty of a non-bailable offence or an offence punishable with death, imprisonment for life or imprisonment for ten years---In absence of any such finding, the Court was debarred to hold that the case was of further inquiry entitling the accused to bail within meaning of S.497(2), Cr.P.C.--­Deeper appreciation of evidence at bail stage, though was not the requirement of law pertaining to bail matters, but cases regarding bail were not and could not be decided in vacuum---Court had to form a view by assessing the evidence on record tentatively.

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

----S. 497----Penal Code (XLV of 1860), Ss.302/324/34---Bail, grant of--­Accused was nominated in F.I.R. which was lodged without any delay---Accused was attributed a clear role of firing---Medical evidence and the witnesses on the spot, had fully supported prosecution version---Accused remained fugitive from law for more than four years---Mere fact that one entry wound was found on the dead body of the deceased whereas four persons had been nominated it the F.I.R. for firing, could not be held a good ground for release of accused on bail---Plea of alibi taken by accused could not be pressed into service at bail stage as alleged theory of alibi had still to stand the test of scrutiny on the basis of evidence yet to be recorded by Trial Court ---Co-accused though had been acquitted, but he had been acquitted under S.265-K, Cr.P.C. and not on merits---Said acquittal was of no help to the accused---Application of bail filed by accused was dismissed, in circumstances.

Khawaja Noor v. Mumtalah Khan and another 2003 YLR 151; Sher Bahadur v. Haji Ghafar Ali Khan and another 1999 PCr.LJ 403; Malik Muhammad Shaheen and others v. Arshad Siddique and 2 others 1997 SCMR 1829 and Bahadur v. Muhammad Latif and others 1987 SCMR 788 ref.

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

----S. 497---Bail---Abscondence---Fugitive from law and Courts, would lose some of his normal rights granted by procedural as also substantial law---Unexplained noticeable abscondence would disentitle a person to the concession of bail notwithstanding the merits of the case.

Safirullah Khan for Petitioner.

Sardar Shaukat Hayat, A.A.-G. for the State.

Mumraz Khan for the Complainant.

Date of hearing: 6th June, 2003.

2003 P Cr. L J 1831

[Peshawar]

Before Malik Hamid Saeed and Qazi Ehsanullah Qureshi, JJ

MUHAMMAD NAEEM---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.219 of 2001, decided on 29th May, 2003.

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

----Ss. 302(b) & 449/34---Appreciation of evidence---Eye-witnesses including the complainant had contradicted each other on material points and the discrepancies appearing in their statements had militated against their credibility warranting rejection of their testimony---Possibility could not be ruled out that the complainant on having received information about the incident after the occurrence went to the spot and took the dead body of his father to the police station and lodged the F.I.R. after due deliberations involving the accused even by giving different time of incident to cover the delay ---Abscondence of accused alone could not be taken into consideration when sufficient evidence was not available on record to prove the prosecution case---Nobody had seen the accused firing at the deceased---Eye-witnesses had claimed only to have seen the accused decamping from the spot---Incident undoubtedly had not taken place in the manner asserted by the prosecution---Accused was acquitted in circumstances.

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

----S. 302---Appreciation of evidence ---Abscondence---Abscondence of an accused is a weak type of evidence and an accused charged for a murder cannot be convicted on the sole basis of abscondence.

Nek Nawaz Khan Awan for Appellant.

Abdur Rauf Gandapur for the State.

Muhammad Ayaz Khan for the Complainant.

Date of hearing: 29th May, 2003.

2003 P Cr. L J 1955

[Peshawar]

Before Muhammad Qaim Jan Khan, J

SURWAIZ‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous No.428 of 2002, decided on 10th February, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.419/420/468/471‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Accused was posing himself as the husband of daughter of the complainant ‑‑‑Nikah Khawan had given an affidavit in the Court that he had received a sum of Rs.1,000 in lieu of Nikahnama and that daughter of complainant was not present when he was scribing the said Nikahnama‑‑‑Said Nikah Khawan, later on, sent an application to the Superintendent, District Jail and resiled from the affidavit alleging that same was obtained under duress and pressure of local Police‑‑‑Case of accused, in circumstances, had become one of, further inquiry‑‑­Offence with which accused was charged, did not fall under prohibitory clause of S.497, Cr.P.C.‑‑‑Accused was admitted to bail, in circumstances.

Sardar Hafeez‑ur‑Rehman Abbasi for Petitioner.

Ghulam Younis Khan Tanoli and Iftikhar Tanoli for the Complainant.

Date of hearing: 10th February, 2003.

2003 P Cr. L J 461

[Quetta]

Before Amanullah Khan Yasinzai and Muhammad Nadir Khan, J

MUHAMMAD RAMZAN‑‑‑Petitioner

Versus

MUHAMMAD ALAM and 3 others ‑‑‑Respondents‑

Constitutional Petition No. 16 of 2002, decided on 9th October, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 514‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑ Forfeiture of bail bond‑‑‑Auction of immovable property of surety‑‑‑Accused for whom surety had executed bail bond having absconded, bail bond of surety was forfeited' and immovable property of surety was ordered to be‑auctioned ‑‑‑Petitioner was successful bidder and property was entered in his name‑‑‑Surety being aggrieved by said auction, preferred revision before Sessions Judge which was allowed and order of auction of property was set aside and property was ordered to be restored to the surety as he fulfilled his obligation by producing the accused before the Trial Court‑‑‑Section 514, Cr.P.C. provided that only the movable property of surety could be attached and sold to recover forfeited .amount of bond and not immovable property‑‑‑Order of attachment and sale of immovable property of surety having been passed in violation of provisions of S.514, Cr.P.C., auction of property of surety, would not confer any valid/legal title or right in favour of the petitioner/auction‑purchaser and his claim being based on an illegal order, could not be enforced at all‑‑‑Petitioner could only approach the competent Court for refund of amount deposited by him for purchase of property in auction‑‑‑Constitutional petition being devoid of any substance was dismissed

Anwar‑ul‑Haq for petitioner.

Asstt. A.‑G. for Respondents.

Date of hearing: 5th October, 2002.

2003 P Cr. L J 872

[Quetta]

Before Muhammad Nadir Khan, J

ASHRAFULLAH KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeals (A.T.A.) Nos.78 and 80 of 2002, decided on 27th September 2002.

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

----S. 27---Improper and defective investigation ---Punishment--­Application before Assistant District Administrative Officer, with regard to the occurrence was marked to accused/Naib Tehsildar on whose report F.I.R. under Ss.4/5 of Explosive Substances Act, 1908 and S.427, P.P.C. was registered against unknown persons---Investigation was taken in hand by the said accused/Naib Tehsildar who arrested six persons against whom no evidence was available---Not only proper and diligent investigation to trace out and arrest the real culprits involved in incident was made by the accused, but innocent persons were arrested and sent up for trial who had suffered a lot till their acquittal---Investigation in the case by the accused was improper, defective and was in violation of law---Investigation was carried out by one accused under supervision of the other---Responsibility of same, in circumstances, would rest on both the accused---Charge under S.27 of Anti-Terrorism Act, 1997, in circumstances, stood proved against both the accused---Conviction awarded to accused by Trial Court being in accordance with law, was upheld---Both the accused being Government Officers and their conviction would entail consequences which 'would have effect on their service as well, sentence of six months' R.I. awarded to accused by Trial Court was reduced to two months---Subject to said modification in quantum of sentence of imprisonment, conviction of accused was maintained.

Shakeel Ahmed for Appellant (in Criminal Appeal (A.T.A.) No.78 of 2002).

Jamshed Malik for Respondent (in Criminal Appeal (A.T.A.) No.78 of 2002).

Amir Rana for Appellant , (in Criminal Appeal (A.T.A.) No.80 of 2002).

Jamshed Malik for Respondent (in Criminal Appeal (A.T.A.) No.80 of 2002).

Date of hearing: 12th September, 2002.

2003 P Cr. L J 1205

[Quetta]

Before Amanullah Khan Yasinzai and Ahmed Khan Lashari, JJ

Haji NADIR KHAN and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.38 and Criminal Revision No.20 of 2001, decided on 12th March, 2003.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Appreciation of evidence---Recovery of pistol and an empty from the place of incident could not be used as corroborative piece of evidence as both the said articles were not sent to Ballistic Expert for report, besides the attesting witness had also not supported said recovery---Complainant had not witnessed the incident and he did not disclose as to who informed him about the incident---Persons who had brought the dead body to house of complainant and the only witness who was shown an eye-witness, had not been examined---Prosecution witnesses were introduced on fourth or fifth day of incident and their statements under S.161, Cr.P.C. were recorded on the sixth day of the incident---Said prosecution witnesses whose conduct otherwise was improbable and unnatural, could not be relied upon especially when their presence at the place of incident was doubtful---Prosecution witnesses had not given any account of incident in the manner, it took place and they had deposed generally that deceased was attacked by accused persons and contradictions existed in statements of said witnesses--­Trial Court had erroneously relied upon statements of prosecution witnesses holding that their statements had received corroboration from medical evidence and recovery---Prosecution having failed to bring home charge to accused, they were acquitted giving benefit of doubt.

Muhammad Khan v. Moula Bakhsh and another 1998 SCMR 570 ref.

M. Aslam Chishti and Muhammad Zafar for Appellants.

Malik Sultan Mehmood, A.A.-G. for the State.

Date of hearing: 3rd March, 2003.

2003 P Cr. L J 1278

[Quetta]

Before Akhtar Zaman Malghani, J

NEHAL KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.(S)37 of 2002, decided on 5th October, 2002.

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

----S. 337-D---Criminal Procedure Code (V of 1898), Ss.221, 225, 243, 412, 439 & 537(b)---Appreciation of evidence---Omission or defect in the charge---Accused, having pleaded guilty, Judicial Magistrate convicted him under S.337-D, P.P.C. and sentenced him accordingly--­Charge against accused had not been framed in accordance with provisions of S.221, Cr.P.C. and basic ingredients of S.337-D, P.P.C. were also missing in the case---Any omission or defect in charge, normally was not sufficient to vitiate the trial but when a person was convicted on plea of guilt, then contents of charge were to be construed strictly---If any defect was found in the charge, conviction order was liable to be set aside because prejudice would be a natural result of such defect or omission---Person could not be convicted under S.243, Cr.P.C. on admission of facts from which a fact essential to constitute offence was missing, nor prosecution could urge that such omission was curable under Ss.225 & 537(b), Cr.P.C. because accused pleaded not to a section of law, but to facts which purported to disclose an offence under said section---Basic ingredient of offence punishable under S.337-D, P.P.C. being missing in the charge to which accused pleaded guilty, conviction of accused was illegal and liable to be set aside---Powers of High Court were wide enough to consider legality of conviction by exercising its jurisdiction under S.439, Cr.P.C.---High Court while exercising its power in revisional jurisdiction, was competent to interfere in judgment of Appellate Court, no matter whether appeal had been decided by Appellate Court on merits or dismissed being not maintainable more particularly when it came to conclusion that illegality or irregularity had been committed by Trial Court while reaching to a conclusion---Charge against accused being defective and accused having been misled by same, conviction based on plea of guilt in consequence of said charge, was not sustainable---High Court converting appeal into revision, set aside conviction of accused and remanded case to Judicial Magistrate for fresh trial from the stage of charge.

Kevishan Chandra v. Emperor AIR 1943 Pat. 313 and Muhammad Razzaq-ul-Islam v. State 1969 PCr.LJ 373, ref.

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

---S. 439---Revision---Scope---Powers of High Court were wide enough to consider legality of conviction by exercising its jurisdiction under S.439, Cr.P.C.---High Court while exercising its power in revisional jurisdiction, was competent to interfere in judgment of Appellate Court, no matter whether appeal had been decided by Appellate Court on merits or dismissed being not maintainable more particularly when it came to conclusion that illegality or irregularity had been committed by Trial Court while reaching to a conclusion.

Appellant through Jail.

Ikhtiar Khan Marghazani for the State.

Date of hearing: 28th September, 2002.

2003 P Cr. L J 1778

[Quetta]

Before Raja Fayyaz Ahmed and Akhtar Zaman Malghani. JJ

MUHAMMAD KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.303 of 2000, decided on 12th May, 2003.

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

----S. 154---First Information Report---Nature and scope---F.I.R. is not a substantive piece of evidence and can only be used to corroborate or contradict its maker, but at the same time its importance cannot be ignored because it depicts the initial version set up by the prosecution and if prosecution does not stick to the version set up in the F.I.R. and introduces a new version during investigation or during the trial or at a later stage Courts always see such deviation with doubt unless and until prosecution brings on record strong circumstances justifying the same.

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

----S. 302(b)---Appreciation of evidence---Prosecution had totally changed its initial version given in the F.I.R. at the trial taking an absolutely new stand through eye-witnesses summoned on application moved under S.540, Cr.P.C.---No explanation, whatsoever, had been furnished by prosecution for introducing the new version---Admittedly no statement under S.161, Cr.P.C. of the said eye-witnesses was, recorded by the police during investigation---Deceased according to the site plan had been fired from a distance of 3000 yards which had made the identification of the culprits next to impossible---Aforesaid newly introduced witnesses had even changed the venue of occurrence in order to justify their presence at the spot and their claim of having identified the culprits by whose firing the deceased had died--- Ocular testimony was not corroborated by any evidence---No medical evidence was available on record to prove the actual cause of death of the deceased, nor the Investigating Officer could prepare his injury statement as we deceased had been buried before his reaching the house of deceased---No weapon of offence or empties were seized by the police during investigation ---Abscondence of accused could not be used as corroboratory evidence against him as it was not put to him in his examination under S.342, Cr.P.C.---Eye-witnesses were residents of a place about 100 kilometres away from the place o: occurrence and their presence on the spot was doubtful, particularly when they had failed to timely report the matter to the police or to make their statements before the Investigating Officer---Accused was - acquitted in circumstances.

PLD 2000 SC 1 ref.

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

----S. 540---Power to summon material witness---Trial Court although has wide power to call any person to give evidence if it finds evidence of such witness essential for just decision of the case, but such powers have not to be exercised to fill in the lacuna left by any party to the proceedings.

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

----S. 156---Investigation into cognizable case---Site plan, preparation of---Evidentiary value---Site plan is not a substantive piece of evidence, nor it can be used for discarding the evidence of a witness whose statement appears to be truthful and reliable, but at the same time site plan is not a piece of waste paper and it cannot be lightly ignored, because it reveals the circumstances which have been noticed by the Investigating Officer at the place of occurrence after his immediate arrival.

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

----S. 302(b)---Appreciation of evidence---Indivisibility of the testimony of a witness---Principles---Rule "Falsus in uno falsus in omnibus" is not recognized by the Courts of law in the country and grain is to be sifted from the chaff, but when on the same evidence one set of accused persons has been acquitted, in order to base conviction on the said evidence Courts always look for independent corroboration.

PLD 2000 SC 1 ref.

Amanullah Kanrani for Appellant.

Raja Amir Abbas for the State.

Date of hearing: 21st April, 2003.

2003 P Cr. L J 1790

[Quetta]