PCRLJ 2004 Judgments

2004 P Cr. L J 20

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, CJ

Mst. PARVEEN IQBAL‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.60/K and Criminal Appeal No.41‑K of 2003, decided on 25th September, 2003.

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

‑‑‑‑S. 426‑‑‑Penal Code (XLV of 1860), S.395‑‑‑Suspension of sentence‑‑‑Accused had a suckling baby of about nine months with her in jail‑‑‑Jails in the country did not normally provide the facilities needed for upbringing of small children particularly the infants‑‑‑Welfare of the child demanded that his mother should be kept in better environment she should 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‑‑‑Holy Prophet Muhammad (p.b.u.h.) was pleased to suspend the sentence of a pregnant woman in the case of "Ghamidiyyah" not only till delivery of the child but for the period of Riza at as well, basically for welfare of the child‑‑‑Operation of the impugned judgment was suspended in circumstances and the accused was released on bail accordingly.

Ghamidiyyah's case; Mst. Nusrat v. The State 1996 SCMR 973; Liaqat and another v. The State 1999 PCr.LJ 1004; Mst. Nasree v. The State 1998 MLD 1350; Mst. Ansar Jan v. The 'State and another 2000 PCr.LJ 586 and Hazoor Bakhsh v. Federation of Pakistan PLD 1981 FSC 145 fol.

Raja Sikandar Khan Yasir for Applicant.

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

2004 P Cr. L J 42

[Federal Shariat Court]

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

ASHRAF and 4 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.7/K of 2002, decided on 25th September, 2003.

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

‑‑‑S. 342(1)‑‑‑Power to examine the accused‑‑‑Compliance with the provisions of S.342, Cr.P.C. in accordance with its terms is essential and departure there from is not permissible if some prejudice is shown to have been caused to the accused‑‑‑Examination of accused is mandatory and not discretionary‑‑‑Trial Court cannot take into account any incriminating circumstance appearing in evidence against the accused without questioning him on that point.

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

‑‑‑‑S. 342(1)‑‑‑Power to examine the accused‑‑‑Object‑‑‑Object of the examination of the accused is to give him an opportunity of explaining the circumstances which tend to incriminate him or likely to influence the mind of the Judge in arriving at a conclusion adverse to him‑‑‑Examination of the accused is a necessity and not a mere formality.

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

‑‑‑‑S. 342(1)‑‑‑Power to examine the accused‑‑‑Non‑compliance vitiates the trial‑‑‑Where the accused is not questioned or his attention is not drawn to an important piece of evidence implicating him in the case, such omission is fatal for prosecution.

Munir Ahmad alias Munni v. The State 2001 SCMR 56; Asif Ali Zardari and another v. The State PLD 2001 SC 568; Rattan Singh v. State of H.P. AIR 1997 SC 768; Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622 and State of Maharasthra v. Sukhdeo Singh 1992 Cr.LJ 3454 ref.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 396/397‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4.)‑‑‑Criminal Procedure Code (V of 1898), S.342(1)‑‑‑Non‑compliance of S.342(1), Cr.P.C.‑‑‑Case remanded‑‑‑Trial Court had not adopted mandatory procedure in conducting the trial and had failed to question the accused on material points of the case including the recovery of weapons of offence from them as required by S.342(1), Cr.P.C.‑‑‑Impugned judgment was consequently set aside and the case was remanded to Trial Court with consent of the parties for fresh decision in accordance with law after re‑examining the accused properly under S.342(1), Cr.P.C.

Munir Ahmad alias Munni v. The State 2001 SCMR 56; Asif Ali Zardari and another v. The State PLD 2001 SC 568; Rattan Singh v. State of H.P. AIR 1997 SC 768; Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622 and State of Maharasthra v. Sukbdeo Singh 1992 Cr.LJ 3454 ref.

Allah Bachayo Soomro for. Appellants.

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

Date of hearing: 25th September, 2003.

2004 P Cr. L J 78

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, CJ

ZAMAN‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Revision No.3/Q of 2003, decided on 26th June, 2003.

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

‑‑‑‑S. 17(3)‑‑‑Penal Code (XLV of 1860), S.365‑‑‑Revision‑‑­Confiscation of the vehicle by the Trial Court‑‑‑Validity‑‑‑Trial Court while convicting and sentencing the accused for the offences charged with had also ordered for confiscation of the vehicle allegedly used in the crime‑‑‑Neither any notice before passing the impugned order was issued or served on the petitioner, nor any attempt was made by the Trial Court to find out as to who was owner of the vehicle‑‑‑Before proceeding to decide as to whether the vehicle was‑ liable to confiscation or not it was incumbent on the Trial Court to have served notice on the owner of the vehicle or the claimant, whosoever he was, calling upon him to show cause as to why the vehicle be not confiscated‑‑‑Since there was no claimant of the vehicle and its ownership was not disputed by the accused persons, there was no need to search for the owner and service of notice upon the petitioner was a must‑‑‑Trial Court had failed to adopt the proper procedure and had passed the impugned order without affording opportunity of hearing to the affected person‑‑‑Order of Trial Court to the extent of confiscation of the vehicle was consequently set aside and the case was remanded to the Trial Court with consent of parties for its decision afresh in accordance with law.

Haji Abdul Razzak v. Pakuta PLD 1974 SC 5; Iqbal Elahi v. The State 1987 SCMR 1274; Muhammad Yousaf v. The State 1998 MLD 755 and Haji Ziauddin v. The State 1990 PCr.LJ 1213 ref.

(b) Natural justice, principles of‑‑‑--

‑‑‑‑Audi alteram partem‑‑‑Discretion to deprive a person of his property has to be exercised in a judicial manner having regard to the legal maxim "audi alteram partem" (nobody should be condemned unheard) and the person affected has to be served with a notice to show cause before any action is taken against him.

Haji Abdul Razzak v. Pakuta PLD 1974 SC 5; Iqbal Elahi v. The State 1987 SCMR 1274; Muhammad Yousaf v. The State 1998 MLD 755 and Haji Ziauddin v. The State 1990 PCr.LJ 1213 ref.

Tahir Hussain Khan for Petitioner

Ghulam Mustafa Mengal, Addl. A.‑G. for the State.

Date of hearing: 26th June, 2003.

2004 P Cr. L J 105

[Federal Shariat Court]

Before Zafar Pasha Chaudhary, J

JAVED IQBAL‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Revision No. 10/L of 2003, decided on 24th July, 2003

(a) Juvenile Justice System Ordinance (XXII of 2000)‑‑‑

‑-----S. 7‑‑‑Age, determination of‑‑‑Intent and import‑‑‑Determination of age of a child under S.7 of the Juvenile Justice System Ordinance, 2000, has been unambiguously left to the judgment of Trial Court, but in the event of inquiry medical report has to be compulsorily obtained which would be of extreme importance.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10‑‑‑Juvenile Justice System Ordinance (XXII of 2000), S.7‑‑­Constitution of Pakistan (1973), Art.203‑DD‑‑‑Trial Court had rightly not accepted the authenticity of the Birth Certificate produced by the accused and being not fully satisfied even with the report of Senior Medical Officer had obtained the report from the Medical Board which had established that the accused was major and was not child within the meaning of Juvenile Justice System Ordinance, 2000‑‑‑Guidelines provided by S.7 of the said Ordinance for determination of age had rightly been followed by the Trial Court and the "impugned finding was neither arbitrary nor against the record‑‑‑Accused, in order to take his case out of pale of jurisdiction of ordinary Court, was legally bound to discharge the onus which was not done‑‑‑Apart from the report of Medical Board other documentary evidence was also present on record to indicate that the accused was not a child at the time of occurrence‑‑­Revision petition was dismissed accordingly.

Muhammad Ishaq v. Muhammad Nadeem 2002 SCMR 440; Muhammad Akram v. Muhammad Haleem 2002 PCr.LJ 633; Hassan Zafar v. The State 2001 PCr.LJ 1939 and Muhammad Yousaf v. The State 1975 PCr.LJ 936 ref.

Asghar Ali Gill for Petitioner.

Mian Abdul Qayum Anjum for the State.

Ghulam Nabi Bhatti for the Complainant.

Date of hearing: 24th July, 2003.

2004 P Cr. L J 161

[Federal Shariat Court]

Before Zafar Pasha Chaudhary and S.A. Rabbani, JJ

MUHAMMAD ASHRAF and 2 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.136/I, 179/I and 206/I of 2002, decided on 12th September, 2003.

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

‑‑‑‑S. 12‑‑‑Penal Code (XLV of 1860), S.377‑‑‑Appreciation of evidence.‑‑Statement of the victim in respect of his kidnapping or abduction, was not supported by any other piece of evidence or circumstance.‑‑‑Although the witnesses did not have any enmity or motive to falsely implicate the accused yet to discharge onus of proving the charge it was imperative for the prosecution to prove all its ingredients‑‑­Victim being not less than 16 years of age,' charge of kidnapping was not proved, nor any force or deceitful means having been employed to compel him to accompany the accused the charge of abduction was also not proved‑‑‑Accused was consequently acquitted of the charge under S.12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979‑‑­Victim had categorically stated that all the three accused had committed sodomy with him and he had no motive or reason for their false implication in the case‑‑‑Anal swabs obtained by the Medical Officer at the time of examination of the victim were found to be stained with semen‑‑‑Statement of the victim, thus, was amply supported by the medical evidence‑‑‑Conviction of accused under S.377, P.P.C. was, therefore, maintained‑‑‑Victim was quite mature seemingly more than 16 years of age‑‑‑One accused was a young boy of 17/18 years and the other two accused were aged about 23 years each who were all first offenders‑‑‑Sentence of accused of 10 years' R.I. each was reduced to 5 years' R.I. each in circumstances.

(b) Criminal trial‑‑‑

‑‑‑‑Evidence‑‑‑Appreciation of evidence‑‑‑Corroboration‑‑‑Safe administration of justice requires corroboration of a statement except where the evidence of a witness is of unimpeachable character and inspires confidence which can be relied upon without corroboration.

M. Abdul Hayee Alvi, Sardar Abdul Razzaq Khan and Manzoor Hussain Mughal for Appellants.

Muhammad Sharif Janjua for the State.

Date of hearing: 10th September, 2003.

2004 P Cr. L J 188

[Federal Shariat Court]

Before Zafar Pasha Chaudhary, J

MUSTAFA‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.70/L of 2003, decided on 24th July, 2603.

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

‑‑‑‑Ss. 10(3)/18‑‑‑Appreciation of evidence‑‑‑Statements of the prosecutrix and her brother coupled with the recovery of torn clothes and the result of investigation had proved the case against the accused beyond any doubt‑‑‑Compromise between the parties had, no doubt, taken place which had been attested by them and their counsel, but offence under S.18 read with S.10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, being not compoundable, no order of acquittal could be passed merely on account of compromise‑‑‑Parties were related inter se and a lenient view in the case could help in reducing the bad blood between them‑‑‑Conciliation and repentance expressed by the accused was treated as a mitigating circumstance‑‑‑Sentence of five years' R.I. awarded to accused was reduced to two years' R.I. with benefit of S.382‑B, Cr.P.C. in circumstances.

Ch. Muhammad Amjad for Appellant.

Mian Abdul Qayyum Anjum for the State.

Dale of hearing: 24th July, 2003.

2004 P Cr. L J 193

[Federal Shariat Court]

Before Zafar Pasha Chaudhary and S.A. Rabbani, JJ

MUHAMMAD IQBAL---Appellant

Versus

Mst. SIANI and another---Respondents

Criminal Appeal No. 185/1 of 2001, decided on 15th September, 2003.

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

----S. 10(2)---Penal Code (XLV of 1860), Ss.468/471---Constitution of Pakistan (1973), Art.203-DD---Appeal against acquittal---Parties were married having grown-up children from their respective marriages--­Marriage of the accused inter se had been duly solemnized and registered with the relevant Union Council---Alleged marriage between the complainant and the female accused was neither registered, nor any Rukhsati had taken place nor she had joined the complainant as his wife ---Finding of acquittal of accused by the Trial Court was supported by cogent reasons and relevant circumstances---Complainant had set up his claim of marriage with the female accused after an extremely long period with malicious intention in order to satisfy his personal vendetta---Such marriage even if had been performed through guardians stood repudiated on exercise of option of puberty by the female accused who had neither admitted her marriage nor accepted or ratified the same---Said marriage admittedly was never consummated---Filing of the suit-by the accused seeking declaration that she was not wedded wife of the complainant was in a way an exercise of option of puberty by her---Islamic Law required very strict proof for adultery which was totally lacking in the case---Convicting the accused for adultery would amount to declare her children as illegitimate--­Acquittal of accused by Trial Court was not only unexceptionable but was also just and equitable---Appeal was dismissed accordingly.

Rehmat Khan and 3 others v. Rehmat Khan and others PLD 1991 SC 275 and Muhammad Bakhsh v. Crown and others PLD 195,0 Lah. 203 ref.

Nemo for Appellant.

Javed Saleem Shorish for Respondents.

Muhammad Sharif Janjua for the State.

Date of hearing: 15th September, 2003.

2004 P Cr. L J 201

[Federal Shariat Court]

Before Zafar Pasha Chaudhary, J

MUHAMMAD ASGHAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.41/L of 2003, decided on 23rd July, 2003

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

----Ss. 10(3) & 10(2)---Appreciation of evidence---Complainant and the victim girl had no enmity, motive or any other malice against the accused for his false implication in the case---Statement of the victim regarding her having been subjected to sexual intercourse was supported by medical report---Vaginal swabs of the victim were found stained with semen--­Victim girl did not appear before the Investigating Officer for more than six days and no marks of violence were found on any part of her body--­No weapon was recovered from the accused---Cumulative effect of the said facts and circumstances could lead to the only inference that the victim was a consenting party to the commission of Zina and she having attained puberty was adult within the meaning of S.2(a) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Conviction of accused under S.10(3) of the said Ordinance was consequently altered to S.10(2) thereof and his sentence was reduced to the imprisonment already undergone by him in ,circumstances which was more than two years--­, Appeal was disposed of accordingly.

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

---Ss. 10(3) & 10(2)---Appreciation of evidence---Police opinion--­Opinion of police is neither binding on the Court nor the same can be treated as evidence, however it may be considered as one of the circumstances in support of the observation or examination carried out by the Experts such as Medical Officer and Chemical Examiner.

Miss Gulzar Butt for Appellant.

Abdul Karim Sheikh for the Complainant.

Ch. Nazir Ahmad for the State.

Date of hearing: 23rd July, 2003.

2004 P Cr. L J 218

[Federal Shariat Court]

Before Sardar Muhammad Dogar, J

MANZOOR HUSSAIN ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.56/L of 2002, decided on 30th April, 2002

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

----Arts. 3/4---Appreciation of evidence---None of the prosecution witnesses who had deposed ocular evidence, had stated that they had seen the accused selling or. Transporting Charas---No witness was examined at the trial to state that he had purchased Charas from the accused on the day of occurrence---No cash was recovered from the accused during personal search to consider that said money could have been the sale price of Charas, sold by the accused---Conviction of accused under Art.3 of Prohibition (Enforcement of Hadd) Order, 1979, in circumstances, was not maintainable, conviction of accused under Art-4 of Prohibition (Enforcement of Hadd) Order, 1979 was however, maintained considering the consistent statements, made by prosecution witnesses against the accused---No enmity of accused with anyone of said witnesses was shown---Counsel for accused himself had not challenged the 'conviction of accused under Art.4 of Prohibition,(Enforcement of Hadd) Order, 1979---Conviction and sentence of accused under Art.4 were maintained---Sentence of fine of Rs.1,00,000, being excessive, same was reduced to Rs.25,000.

Abdul Aziz Khan Niazi for Appellant

Miss Nausheen Taskeen for the State

Date of hearing: 30th April, 2002.

2004 P Cr. L J 246

[Federal Shariat Court]

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

ASAD KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 152/I and Criminal Revision No. 19/I of 2003, decided on 3rd December, 2003.

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

----Art. 203-DD---Penal Code (XLV of 1860), S.377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.12 & 20--­Criminal Procedure Code (V of 1998), Ss.5(1), 28, 233, 237 & 238--­Revisional and other jurisdictions of Federal Shariat Court ---Scope--­Accused, in the present case, had been charged under the substantive provision of 5.377, P.P.C. only---Appeal to the Federal Shariat Court--­Maintainability---Where neither the accused had been charged under any of the provisions of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 nor had he been convicted or tried thereunder, an appeal against the order/judgment of the Court of the first instance, shall not lie to the Federal Shariat Court---Principles.

Though in pursuance of Article 203-DD of the Constitution appellate jurisdiction against the order of Sessions Judge working under the "Hudood Ordinance" has been conferred upon the Federal Shariat Court yet, in all those cases in which neither the accused has been charged under any of the provisions of the "Hudood Ordinance" nor has he been convicted or tried thereunder, an appeal against the order/judgment of the Court of the first instance, shall not lie to the Federal Shariat Court. Section 5(1) of the Cr.P.C. though prescribes that all offences, under the Penal Code, have to be investigated, inquired into, tried, and otherwise be dealt with in accordance with the provisions of the Code yet, subsection (2) thereof makes it incumbent that all offences, under other laws, have to be investigated, inquired into, tried and otherwise, be dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigation, inquiry or trial.

A bare perusal of sections 28 and 29. Cr.P.C. would lead to the clear inference that where all offences under the Penal Code are required to be tried by the Courts constituted thereunder, the offences under other laws must be tried by the Courts mentioned or specified by the relevant laws, having jurisdiction to, try the offence or if no such Court is so mentioned then by the Court which is mentioned in the Eighth Column of the Second Schedule, meaning thereby that provisions of the general law, to the extent of repugnancy, must yield to special law.

Since, no separate procedure for investigation or inquiry has been provided under the "Hudood Ordinance" and the provisions of the Cr.P.C., by virtue of section 20 of "the Ordinance", come into play straightaway, therefore, in most of the cases it is really hard to differentiate "as to under which of the enactments the inquiry or trial has been conducted particularly when the offences are culpable by different laws and forums of trial prescribed thereunder, though different, are yet, alike, as it is in the case of Sessions Judge who is competent to hold trial under "the Code" as well as "the Hudood Laws" therefore, forum of appeal has to be determined on the basis of the charge framed. Though primarily, averments in the complaint/F.F.R. give jurisdiction to the Court yet, for the purpose of taking cognizance and framing charge, material available on record may also be evaluated and if prima facie it reveals the commission of several or any of the offences, culpable by different or any particular enactment, then it would be for the Court to decide "as to under which of the law/laws the offence or offences are made out". In the wake of above, it thus proceeds that when in a case charge is not framed under any particular law, trial cannot be deemed to have been conducted thereunder. Having regard to the express terms on section 233, Cr.P.C. which provide that for every distinct offence there, shall be a separate charge, it may be mentioned here that conviction fox an offence with which the accused is not charged is an exception to the general rule and the provisions of section 237, Cr.P.C., whereunder person charged with one offence -may be convicted for another of section 238, Cr.P.C. which enables the Courts to convict an accuse person for such minor offence which was either cognate to, or a part or or was an attempt to commit the principal offence, with which the, accused was originally charged, must be construed strictly.

Though first proviso tagged to section 20 of the Offence of Zing (Enforcement of Hudood) Ordinance, 1979 provides that the Court constituted under the Ordinance is competent to try other offences as well and award punishment therefor, yet, same could not have been done in the present case, because firstly; the accused having been charged under the substantive provisions of P.P.C. only could not have been convicted under the Hudood Ordinance because no corresponding or parallel provision to the above quoted proviso is available in the Cr.P.C. and secondly the punishment provided for the offence under section 12 of the Ordinance, being more and severe, the accused having been charged for the minor offence i.e. under section 377, P.P.C., could not have been convicted for the major offence.

Trial Judge, in the present case, while rejecting application filed by the complainant seeking amendment of charge had observed that since on the basis of the material available on record no case of kidnapping or abduction of the victim was made out and the intention of the accused only was to commit sodomy, therefore, he could not have been charged under section 12 of the Hudood Ordinance, Court at this stage, did not deem it appropriate to indulge in assessing sufficiency or otherwise of the reasons, which weighed with the trial Judge in rejecting the application under reference, lest it might prejudice the case of either of the parties at any subsequent stage, yet the fact was that in the instant case, the accused had not been ostensibly charged for any offence punishable under the Hudood Ordinance. Therefore, the appeal against the impugned judgment was not maintainable before the Federal Shariat Court. If, a Court, even not possessed of jurisdiction to try a case, assumes jurisdiction wrongly and exercises power, not vested in ,it, then appeal from its decision would be in the same manner, 'as an appeal would lie from a decision made with jurisdiction.

A party aggrieved of the decision passed without jurisdiction may raise the controversy before the appellate forum in the same hierarchy and if appellate forum came to the conclusion that the decision so made was without jurisdiction, it could set aside the judgment on the ground of illegal assumption of jurisdiction leaving the option with the concerned authorities to have the matter decided by the original forum of competent jurisdiction and that on the basis of wrong exercise of jurisdiction by the trial Court its judgment could not be assailed before any appellate forum, other than the one prescribed under the law, against the judgment of the Court of first instance.

Federal Shariat Court though in its revisional jurisdiction is competent to call for and examine record of any case decided by any criminal Court, under any law, relating to the Enforcement of Hudood, for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by, and also as to the regularity of any proceedings of, such Court yet, keeping in view the fact that trial in the present case having been concluded and judgment pronounced, the impugned order/judgment at such stage could not be interfered with because in revision a direction to alter the charge so as to include an offence for which the accused was not originally charged could be given only if the trial Court itself could have taken such action. Obviously the trial Court, after pronouncement of the impugned judgment itself has become functus officio and therefore, clock, at this belated stage, could not be turned back unless the impugned judgment was set aside by a Court of competent jurisdiction.

Appeal being not maintainable before the Federal Shariat Court, the same was returned to the appellant for its presentation before the proper forum.

Muhammad Ishfaq v. The State PLD 1973 SC 368 and Rasool Bakhsh and others v. The State and others 1998 PCr.LJ 438 ref.

(b) Jurisdiction---

---- If, a Court, even not possessed of jurisdiction to try a case, assumes jurisdiction wrongly, and exercises power not vested in it, then appeal from its decision would be in the same manner, as an appeal would lie from a decision made with jurisdiction---Principles.

The accused had not been ostensibly charged for any offence punishable under the Hudood Ordinance. Therefore, the appeal against the impugned judgment was not maintainable before the Federal Shariat Court. If, a Court, not possessing jurisdiction to try a case, assumes jurisdiction wrongly and exercises power not vested in it, then appeal from its decision would lie in the same manner, as an appeal would lie from a decision made with jurisdiction.

A party aggrieved of the decision passed without jurisdiction may raise the controversy before the appellate forum in the same hierarchy and if appellate forum comes to the conclusion that the decision so made was without jurisdiction, it may set aside the judgment on the ground of illegal assumption of jurisdiction leaving the option with the concerned authorities to have the matter decided by the original forum of competent jurisdiction and that on the basis of wrong exercise of jurisdiction by the trial Court its judgment cannot be assailed before any appellate forum, other than the one prescribed under the law, against the judgment of the Court of first instance.

Muhammad Ishfaq v. The State PLD 1973 SC 368; Rasool Bakhsh and others v. The State and others 1998 PCr.LJ 438 ref.

Fazal-i-Haq Abbasi for Appellant.

Gul Sherin Khan Jadoon for the Complainant.

Muhammad Sharif Janjua for the State.

Date of hearing :3rd December 2003.

2004 P Cr. L J 371

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, C.J., Dr. Fida Muhammad Khan and Saeed-ur-Rehman Farrukh, JJ

MUHAMMAD ARSHAD NASEEM --- Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 71/I of 2003, decided on 28th October, 2003.

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

----S.7---Appreciation of evidence---Application wherein the allegation regarding Zina was levelled against the complainant was not exhibited at the trial and a photostat copy of the same produced before the Magistrate at inquiry stage could not have formed a basis for conviction of the accused---Trial Court had charged the accused under S.3 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, which merely contained definition of "Qazf" and did not provide for penal consequences, whereas the offence of Qazf was punishable under S.7 of the said, Ordinance, therefore, Trial Court notwithstanding the fact that the complaint itself was filed under S.3 of the said Ordinance ought to have charged the accused under its S.7, if it had decided to proceed against him---Trial in the case, thus, had not been conducted in the proper manner---Impugned judgment was consequently set aside and the case was remanded to the Trial Court for its decision afresh in accordance with law.

Abdul Qayyum v. Muhammad Rafique 2001 SCMR 1651; Muhammad Azam v. Muhammad Iqbal and another PLD 1984 SC 192; Fazal Muhammad v. Mst. Chohara and others 1992 SCMR 2182; Bishwanath v. Sachhidanand AIR 1971 SC 1949; Om Prakash v. Unit Trust of India and others AIR 1983 Bom. 1 and Rajwati Devi v. Joint Director, Consolidation, Government of Bihar, Patna and others AIR 1989 Pat. 66 ref.

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

----Arts. 2(c)(ii), 72, 73 & 75---Documentary evidence, proof of--­Although documents not formally admitted in evidence and available on Court's record or elsewhere may, for the purpose of elucidation of certain facts, be looked into, yet the same by no stretch of imagination can be termed or regarded as "evidence" unless proved and exhibited at the trial in accordance with law---Since documents do not prove themselves and truth of the contents of the documents cannot be proved by merely producing the same for inspection of the Court within the purview of Art. 2(c)(ii) of the Qanun-e-Shahadat, 1984, the document upon which a party relies must at first be placed before the Court and then be got proved by calling the witness or witnesses.

Abdul Qayyum v. Muhammad Rafique 2001 SCMR 1651; Muhammad Azam v. Muhammad Iqbal and another PLD 1984 SC 192; Fazal Muhammad v. Mst. Chohara and others 1992 SCMR 2182; Bishwanath v. Sachhidanand AIR 1971 SC 1949; Om Prakash v. Unit Trust of India and others AIR 1983 Bom. 1 and Rajwati Devi v. Joint Director, Consolidation, Government of Bihar, Patna and others AIR 1989 Pat. 66 ref.

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

----S. 237---Person charged with one offence can be convicted of another---Section 237, Cr.P.C. is an exception to the general rule that no person can be convicted for an offence for which he is not charged--­Section 237, Cr.P.C., therefore, must be construed strictly and be applied in those cases only where either the offences allegedly committed are cognate or it is doubtful as to what offence is made out of the act or acts allegedly committed by the accused.

Mehdi Khan Chohan for Appellant.

Chaudhary Abdul Aziz for the Complainant.

Muhammad Sharif Janjua for the State.

Date of hearing: 28th October, 2003.

2004 P Cr. L J 426

[Federal Shariat Court]

Before Ch. Ijaz Yousaf, CJ

HUSNAIN RAZA alias JANI and another‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Application No.501/L of 2003 in Criminal Appeal No.351/L of 2003, decided on 3rd January, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 377‑‑‑Juvenile Justice System Ordinance (XXII of 2000), Ss.12(a) & 2(b)‑‑‑Criminal Procedure Code (V of 1898), S.426‑‑‑Suspension of sentence‑‑‑Accused persons„ who were about 16 years old were convicted under S.377, P.P.C. and sentenced to undergo rigorous imprisonment for two and a half years each with fine‑‑‑Contention of the accused persons was that at the time of occurrence' they were "children" within the purview of S.2(b) of the Juvenile Justice System Ordinance, ‑2000 and thus could not have been sentenced to undergo rigorous imprisonment in view of S. 12(a) of the said Ordinance and that the sentence of imprisonment inflicted on the accused persons being short and they having already undergone substantial portion thereof i.e. about nine months' imprisonment each, deserved to be released on bail as there was no likelihood of the appeal being heard in near future‑‑‑Validity‑‑‑No child while in custody, put in Borstal or any other institution can be ordered to labour or given, corporal punishment‑‑‑Infliction of the sentences of rigorous imprisonment, in the present case, being patently in violation of S.12, Juvenile Justice System Ordinance, 2000, the sentences inflicted on the accused being short and they had already undergone substantial portions thereof, ex facie, a case for suspension of sentences was made out‑‑‑Federal Shariat Court ordered the suspension of the operation of the impugned judgment and ordered the release of the accused persons on bail on their furnishing bail bonds in the sum of Rs.one lac each with two sureties each and P.R. Bonds each in the like amount to the satisfaction of the Trial Court.

(b) Juvenile justice System Ordinance (XXII of 2000)‑‑‑

‑‑‑‑S. 12(a) & Preamble‑‑‑Object and purpose of Juvenile Justice System Ordinance, 2000‑‑‑No child while in custody, put in Borstal or any other institution can be ordered to labour or given corporal punishment.

As is evident from its preamble, the Juvenile Justice System Ordinance, 2000 has been promulgated primarily for protection of children and also for their rehabilitation in society. Since the purpose is to treat and reform delinquents and to keep them away from the destructive impact of prison which otherwise, has to tell its toll therefore, the Juveniles are normally incarcerated as a last resort. In the wake of section 12(a) of "the Ordinance" it is provided that no child while in custody, put in Borstal or any other institution can be ordered to labour or given corporal punishment.

Syed Zawar Hussain Shirazi for Applicants.

Raja Abdur Rehman, Asstt. A.‑G., Punjab with Raja Akhtar Nawaz for the State.

Date of hearing: 3rd January; 2004.

2004 P Cr. L J 622

[Federal Shariat Court]

Before Saeed‑ur‑Rehman Farrukh, J

TARIQ MASIH‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Jail Criminal Appeals Nos.269/I of 2002 and 6/I of 2003, decided on 12th January, 2004.

(a) Islamic Jurisprudence‑‑‑

‑‑‑‑ Conversion‑‑‑Conversion of non‑Muslim to Islam‑‑‑Essentials‑‑-Faith is personal to any individual and. if he or she openly professes to believe or follow a particular faith no further inquiry or evidence would be called to verify its correctness‑‑‑No rituals of specific nature are required to be undergone by a non‑Muslim before he or she is to be treated to have renounced his or her' earlier faith and joined the ranks of believers in Islam‑‑‑All that is necessary is a declaration in this behalf and recitation of Kalma, belief in one God, the finality of Holy Prophet Muhammad (peace be upon him) and the Holy Qur'an‑‑‑True Muslim must also declare his or her faith about the earlier Prophets, the Divine Books revealed unto them and the day of Judgment.

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

‑‑‑‑Ss. 16 & 10(2)‑‑‑Appreciation of evidence‑‑‑Pre‑requisites of embracing Islam having been fulfilled by both the accused, they were no longer non‑Muslims by faith‑‑‑Lady accused was no longer the legally‑wedded wife of the complainant who continued to follow his original religion‑‑‑Marital relationship between the lady accused and the complainant having been severed perpetually, she was legally free to enter into marriage with her co‑accused as both of them had embraced Islam‑‑‑Nikahnama evidencing marriage of both the accused inter se was placed on record‑‑‑No cognizable offence, thus, had been committed by the accused‑‑‑Accused were acquitted accordingly.

PLD 2000 Lah. 594; Salamat Ali v. The State PCr.LJ 1989 FSC 978; Sardar Masih v. Haider Masih and others PLD 1988 FSC 78 and Mst. Zarina and another, v. The State PLD 1988 FSC 105 ref.

(c) Islamic Jurisprudence‑‑‑

‑‑‑‑ Marriage‑‑‑Marriage between non‑Muslims stands ipso facto annulled as a result of their embracing Islam.

Salamat Ali v. The State PCr.LJ 1989 FSC 978; Sardar Masih v. Haider Masih and others PLD 1988 FSC 78 and Mst. Zarina and another v. The State PLD 1988 FSC 105 ref.

(d) Islamic Jurisprudence‑‑

‑‑‑‑ Marriage‑‑‑Marriage in Islam is in the nature of civil contract entered into between man and Woman and no formal deed, as per Sharia, is necessary to be drawn to prove that a valid marriage has come into being.

Javed Aziz Sindhu for Appellant.

Arif Ali Zafar Chohan for the State.

Date of hearing: 12th January, 2003.

2004 P Cr. L J 640

[Federal Shariat Court]

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

GHULAM SHABBIR‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.276/L, 329/L and Criminal Revision 54/L of 2001, decided on 7th July, 2003.

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

‑‑‑‑Ss. 10(3) & 10(2)‑‑‑Appreciation of evidence‑‑‑No mark of violence was found on the body of the alleged abductee who was habitual to sexual intercourse according to her medico‑legal report‑‑‑Chemical Examiner's report was positive‑‑‑Abductee had been moving freely with the accused from place to place without raising any alarm so as to escape from his clutches‑‑‑Presumption was that the victim was neither forcibly abducted nor subjected to Zina‑bil‑Jabr and that she had been indulging in sexual intercourse with the accused willingly‑‑‑Conviction of accused under S.10(3) of the Offence, of Zina (Enforcement of Hudood) Ordinance, 1979, was consequently altered to S.10(2) of the said Ordinance and his sentence of ten years' R.I. was reduced to five years' R.I. in circumstances.

Dost Muhammad Kahoot for Appellant.

Ch. Ishtiaq Ahmad Minhas for the State.

Date of hearing: 7th July, 2003.

2004 P Cr. L J 677

[Federal Shariat Court]

Before Saeed‑ur‑Rehman Farrukh, J

KHAWAND BAKHSH alias KHAWANDO‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 110/Q of 2002, decided on 14th January; 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 392‑‑‑Appreciation of evidence‑‑‑None of the accused was identified by anybody at the spot due to their muffled faces‑‑‑Recovery of pistol, live bullets and wrist watch did not connect the accused with the crime as nobody during the trial had claimed them‑‑‑Accused was not even proceeded against for keeping an unlicensed pistol with him‑‑­Judicial confession made by the accused before the Magistrate was the only incriminating evidence against him, which was retracted by him at the earliest opportunity‑‑‑Accused was convicted for committing dacoity thereby impinging on the rights of individuals‑‑‑Judicial confession made by accused in the light of Sunnah of Holy Prophet (peace be upon him) was not in violation of rights of Allah and his retraction from the satire, therefore, did not by itself absolve him of the confessed guilt‑‑‑In order to sustain conviction of accused on the basis of retracted confession, corroboration from other direct or circumstantial evidence was called for, which was not available on record and he could not be legally convicted for the offence under S.392, P.P.C.‑‑‑Accused was acquitted accordingly.

Qur'anic Verse 4:135 ; Verse 75:15; Bukhari Vo1.8 p.535 English translation; Arabistan and others v. The State 1992 SCMR 754; Ali Akbar v. The State 2001 PCr. LJ 890 and Ch. Muhammad Yaqoob and others v. The State 1992 SCMR 1983 ref.

(b) Islamic Jurisprudence‑‑‑

‑‑‑‑Crime and punishment‑‑‑Confession‑‑‑Confession of an accused in Islamic Criminal Justice System is used in the meaning of acknowledgment‑‑‑Confession is, thus, the total acknowledgment of one's guilt‑Technically, confession means the evidence of a person against himself which is one of the strongest source of proof in Islamic Criminal Justice System and is termed as Sayeedul Hujaj i.e. king of all sources of proof‑‑‑The Holy Qur'an and Sunnah of the Holy Prophet (peace be upon him) recognize confession as a source of proof of crime and rights and regarding its legality, the Jurists have derived arguments from the Qur'anic Verses and traditions of the Holy Prophet (peace be upon him).

Qur'anic Verse 4:135 ; Verse 75:15; Bukhari Vo1.8 p.535 English translation and Arabistan and others v. The State 1992 SCMR 754 ref.

(e) Confession‑‑

‑‑‑Confession before Court‑‑‑When a confessor confesses before the Court, then the offence shall be considered as proved on the basis of his confession and not by the‑evidence of the witnesses.

(d) Confession‑‑‑

‑‑‑‑ Retraction from confession‑‑‑Admissibility‑‑‑Retraction from confession in matters where the right of Allah is predominant like Zina and drinking wine, is admissible before or after the announcement of judgment or during the execution of the punishment.

(e) Penal Code (XLV of 1860)‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Retracted confession‑‑‑Retracted confession may be treated to be sufficient to sustain a conviction for a capital offence if the same is found to be voluntary and true, but as a rule of prudence the same should not be acted upon unless corroborated by some other reliable evidence in material details.

Arabistan and others v. The State 1992 SCMR 754; Ali Akbar v. The State 2001 PCr.LJ 890 and Ch. Muhammad Yaqoob and others v. The State 1992 SCMR 1983 ref.

Ammanullah Kanrani for Appellant.

Qari Abdul Rashid for the State.

Date of hearing: 14th January, 2004.

2004 P Cr. L J 703

[Federal Shariat Court]

Before Zafar Pasha Chaudhary, J

MUHAMMAD BASHIR‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Jail Criminal Appeal No.246/I of 2003, decided on 23rd January, 2004.

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

‑‑‑‑Arts. 3 & 4‑‑‑Appreciation of evidence‑‑‑Accused having been proved on record to be present in the truck as its conductor, could not be absolved of his responsibility of transporting the narcotics and he was bound to explain as to how the same were being transported‑‑‑Production of case property in the Court, no doubt, was ordinarily considered necessary, but in the present case a long period of thirteen years was consumed in conclusion of the trial and the contraband articles could not be retained for an indefinite period and the same must have been destroyed‑‑‑Non‑production of the order to destroy the narcotics was a serious lapse on the part of the Investigating Officer, but such lapse could not falsify or nullify the whole prosecution case‑‑‑Conviction and sentence of accused under Art.3 of the Prohibition (Enforcement of Hadd) Order, 1979, was maintained in circumstances‑‑‑Conviction and sentence of accused under Art.4 of the said Order were, however, set aside being illegal as conviction under both the said Articles could not be lawfully recorded.

1991 SCMR 895; 1993 SCMR 1608 and 1996 PCr.LJ 1856 ref.

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

‑‑‑‑Arts. 3 & 4‑‑‑Conviction‑‑‑Conviction cannot be recorded both under Arts.3 & 4 of the Prohibition (Enforcement of Hadd) Order, 1979, against an accused at one and the same time in a case.

1991 SCMR 895; 1993 SCMR 1608 and 1996 PCr.LJ 1856 ref.

M. Saliheen Mugal for Appellant

M. Sharif Janjua for the State.

Date of hearing: 23rd January, 2004.

2004 P Cr. L J 716

[Federal Shariat Court]

Before Zafar Pasha Chaudhary, J

MUHAMMAD ZAFAR NAEEM‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.233/L of 2003, decided on 8th January, 2004.

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

‑‑‑‑S. 10(3)‑‑‑Appreciation of evidence‑‑‑Statement of the victim girl inspired full confidence which was supported on all material points by medical report as well as by the report of the Chemical Examiner‑‑‑None of the witnesses including the victim or the complainant had any motive or malice to falsely implicate the accused and exonerate the real culprit‑‑­F.I.R. had been lodged without any notable delay‑‑‑Prosecution evidence was consistent‑‑‑Prosecution case could not be thrown out merely on the alleged lapse of non‑production of the clothes of the victim before the Chemical Examiner‑‑‑Conviction and sentence of accused were maintained in circumstances.

M. Yaqoob Khan for Appellant.

Raja Abdul Rehman, A.A.‑G. assisted by Sardar M. Farooq Khan for the State.

Date of hearing: 8th January, 2004.

2004 P Cr. L J 754

[Federal Shariat Court]

Before S.A. Manan and S.A. Rabbani, JJ

ANSAR MEHMOOD and 2 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Jail Criminal Appeal No.221/I and Criminal Appeal No.23‑P of 2003, decided on 16th February, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Medical evidence did not directly connect the accused with the commission of the offence‑‑­Magistrate who recorded the confessional statements of the accused had made contradictory statements and no reliance could be placed on the said confessions‑‑‑Motive reflected from the confessions was also not credible‑‑‑Retracted confessions could not be made sole basis for conviction‑‑‑No other evidence was available against the accused on record‑‑‑Accused were acquitted in circumstances.

M. Yousaf Zia for Appellants.

M. Sharif Janjua for the State.

Date of hearing: 16th February, 2004.

2004 P Cr. L J 795

[Federal Shariat Court]

Before S.A. Rabbani, J

JAWED---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 19-K of 2003, decided on 24th November, 2003.

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

----Ss. 392/397/34---Appreciation of evidence---Accused was not apprehended on the spot where the cash was snatched---Recovery of the cash from the accused was not proved---Accused, according to the complainant himself, had muffled their faces at the time of occurrence--­Nothing was available on record to show that the accused was amongst the culprits who had robbed the complainant---Previous judgment whereby co-accused had been convicted and sentenced had no prejudicial effect on the present case as in that case the accused was not a party--­Charge against the accused did not stand proved and he was acquitted accordingly.

Allah Waraya v. The State 1996 PCr.LJ 1683 ref.

M.M. Aqil Awan for Appellant.

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

Date of hearing: 18th November, 2003.

2004 P Cr. L J 843

[Federal Shariat Court]

Before Zafar Pasha Chaudhary, J

MUHAMMAD HANIF---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 108-L of 2003, decided on 16th January, 2004.

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

----Ss. 7 & 10(3)---Appreciation of evidence---Not only complainant, himself was eye-witness in the case, but statement of victim girl who was dumb since birth, was equally important as she had made a very natural statement---Statement of mother of victim girl was equally important as she had made a very material statement---Mother of victim girl had taken the girl to field and she being dumb correctly picked up accused (boy) pointing out her finger towards him---Victim girl being young and disabled child could not have implicated the accused falsely---Other prosecution witness had also lent support to the prosecution evidence as tie claimed having seen the accused running away from near the place of occurrence which had established that accused was present at the time of occurrence---Most important witness was who in her statement had clearly proved that victim girl was subjected to Zina--Doctor's report was supported by report of Chemical Examiner--­ Accused Was aged 14/15 years old at the time of occurrence and was student of 8th class---Lenient view though had always been taken regarding youngsters and the students, but in the present case, a very heinous offence had been committed by subjecting a child who was born dumb, to Zina-bil-Jabr---Victim girl kept on suffering both physically and mentally---Accused had already been awarded five years R.I. keeping his age in view---Conviction of accused was maintained under Ss.7 & 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, but his sentence was reduced from five years' ,R.I. to three years R.I. accordingly.

Rana Amjad Ali Shaheen for Appellant.

Shoaib Zafar for the State.

Date of hearing: 16th January, 2004.

2004 P Cr. L J 899

[Federal Shariat Court]

Before Saeed-ur-Rehman Farrukh, J

MUHAMMAD SAFEER---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No. 175-I of 2002, decided on 18th September, 2003.

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

----Arts. 203-D & 203-DD---Powers, jurisdiction and functions of Federal Shariat Court---Scope.

Initially, powers, jurisdiction and functions of the Federal Shariat Court were confined vide Article 203-D to the examination of laws, detailed therein, both Federal as well as Provincial, on the touchstone of Holy Qur'an and Sunnah and declaration of any law or prevision of law as repugnant to the Injunctions of Islam, with the consequential effects, flowing therefrom, as enumerated by this Article.

It is with effect from March, 22, 1982, that vide 'Constitution (Second Amendment) Order, 1982 (P.O. No.5 of 1982) Article 203-DD was added to the Constitution, thereby enlarging the jurisdiction of Federal Shariat Court.

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

----Art. 203-DD ---Revisional jurisdiction of Federal Shariat Court--­Cases falling under Hudood Laws ---Revisional jurisdiction to examine correctness, legality or propriety of orders passed by Sessions Judge or Additional Sessions Judge, was exclusively conferred on Federal Shariat Court and revisional or inherent jurisdiction of High Court in such matters was taken away.

Iqbal Hussain v. The State PLD 1985 Lah. 65 ref.

(c) Constitution of Pakistan (1973)------

----Arts. 203-DD(3), 203-F(2-A), 203-F(2-B), 203-G & 199---Appeal to Supreme Curt---only remedy available to an aggrieved person against the decision/judgment of Federal Shariat Court in Hudood case, was to approach Supreme Court of Pakistan by way of appeal or petition for leave to appeal under Art.203-F(2-A), or Art.203-F(2-B) of the Constitution as the case might be and such ether- jurisdictions that might be conferred upon Federal Shariat Court by or under any law vide Art.203-DD(3) of Constitution---Exclusive jurisdiction, appellate as well as revisional, vested in Federal Shariat Court, exercise whereof could be assailed only before Supreme Court under Art.203-F(2-A) or Art.203-F(2-B) of the Constitution---By taking into consideration the cumulative effect of said provisions of Constitution, High Court stood denuded of powers to exercise Constitutional jurisdiction under Art. 199 of the Constitution in respect of any matter falling within jurisdiction of Federal Shariat Court---Matter would become clear by perusing Art.203-G of constitution, which had ousted the jurisdiction of all other Courts or Tribunals, except Supreme Court of Pakistan to interfere with the judgment or decision of Federal Shariat Court in exercise of its powers under Chapter 3-A of Constitution.

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

----Arts. 199, 203-A, 203-D, 203-DD---Civil procedure Code (V of 1908), S.9---Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979), Ss.3, 7 & 11---Specific Relief Act (I of 1877), S.42 --- Appeal to Federal Shariat Court---During proceedings of complaint case filed by respondent Lady against appellant under Ss.3 & 7 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 it was brought to the notice of Trial Court that a civil suit seeking a declaration that child in dispute was not legitimate issue born out of the wedlock between panics, filed by appellant was pending before Civil Court, Trial Court adjourned proceedings of complaint case sine die so as to await the decision of said civil suit---On filing Constitutional petition against order of Trial Court by respondent, High Court issued direction to Trial Court to conclude trial in complaint case within one month and Trial Court despite pendency of civil suit filed by appellant, proceeded to pronounce judgment holding appellant to be guilty of offence under S.11 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 and sentenced appellant to two years' R.I. with fine---Appellant had filed appeal to Federal Shariat Court against said judgment---Validity---High Court had no jurisdiction to entertain Constitutional petition filed by respondent lady to complaint case qua the earlier order of Trial Court about stay of its proceedings so as to await the decision of civil suit filed by appellant which was pending adjudication---Law did not postulate the prejudging of civil suit in criminal proceedings between same parties as in that event jurisdictional foundation of Civil Courts would be irreparably shaken--­Trial Court on direction of High Court should not have decided complaint case pending civil suit, to pre-empt the judgment of Civil Court which being Court of plenary jurisdiction under S.9, C.P.C. was exclusively competent to finally adjudicate upon declaratory suit pending before it.

Ahmed v. Abdul Aziz PLD 1989 SC 771; Syed Mazhar Hussain Bokhari v. The Secretary, Government of Punjab, Local Government and Rural Development Department, Lahore and others 1998 SCMR 1948; Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Khalid Mehmood Wattoo v. Government of. Punjab and others 1998 SCMR 2280; Sajjad Ahmed Javed Bhatti v. Secretary Establishment Division 1999 SCMR 2186 and Pervaiz Alam v. Ilyas Hussain Shah 1995 SCMR 784 ref.

(e) Approbate and reprobate---

---- A suitor could not be allowed to approbate and reprobate at the same time.

(f) Practice and Procedure---

----If the basic order was held to be void, the superstructure built thereon would automatically fall down.

Muhammad Aslant Uns for Appellant.

Muhammad Sharif Janjua for the State.

Sardar Zaheer Ahmed Khan for Respondent No.2.

Date of hearing: 18th September, 2003.

2004 P Cr. L J 929

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, C.J.

Mst. NAHEED AKHTAR---Petitioner

Versus

AMJAD MAHMOOD AKHTAR and others---Respondents

Criminal Revision No.26/I of 2003, decided on 8th January, 2004.

Criminal Procedure Code (V of 1898)---

----S 497, Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979)---Ss.7 & 11---Constitution of Pakistan (1973), Art.203-DD--- Bail, grant of---Revision had been directed against order of Trial Court whereby bail was granted to the accused---Reason primarily weighing with Trial Court in allowing bail to accused was that since F.I.R. was registered under S.7 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1971, it was yet to be determined as to Whether case was covered by said S.7 or would fall within ambit of S.11 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979---Trial Court had found that it being a case of further inquiry, prohibitory clause of S.497, Cr.P.C. was not attracted---Section 7 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 having not provided for imposition of any other kind of sentence, including sentence of imprisonment, except sentence of stripes, proper course for Trial Court was to release accused on bail pending trial of case, because even if there was likelihood of the case being turned out to be one under S.11 of the said Ordinance, it was not wise to detain accused because sentence could not be inflicted in anticipation---Withholding of concession of bail, in circumstances, would have been harsh because accused having been charged under S.7 of Offence of Qazf (Enforcement of Hadd) Ordinance 1979, if ultimately they were to be convicted thereunder, then at the most sentence of stripes could have been inflicted on them and sentence of imprisonment having been excluded, then how accused were to be imprisoned during trial, if they were prepared to give surety for their appearance---Revision petition against judgment of, Trial Court being misconceived, was dismissed.

Ch. Naseer Ahmad Tahir for Petitioner.

Muhammad Sharif Janjua for the State.

Date of hearing: 8th January, 2004.

2004 P Cr. L J 984

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, CJ

KHALID MEHMOOD‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.263/L of 2003, decided on.26th December, 2003.

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

‑‑‑‑S. 12‑‑‑Penal Code (XLV of 1860), S.377‑‑‑Criminal Procedure Code (V of 1898), S.367‑‑‑Provisions of S.367, Cr.P.C. violated by Trial Court‑‑‑Case remanded‑‑‑Trial Court, without formulating the points for determination or appraising the prosecution evidence, had convicted the accused by merely pointing out defects and weaknesses in the defence evidence‑‑‑Such omission was not only in glaring violation of the mandatory provisions of law contained in S.367, Cr.P.C. but also appeared to be in disregard of the settled rules of the administration of criminal justice‑‑‑Unless presumption of innocence imputed to the accused was dislodged by the force of prosecution evidence at the trial, defence evidence was not required to be looked, into, what to speak of convicting him on the ground of weakness in his defence‑‑‑Convictions and sentences of accused were consequently set aside and the case was remanded to Trial Court for rewriting judgment in accordance with law.

Rab Nawaz and another v. The State PLD 1994 SC 858; Mst. Shamshad v. The State 1998 SCMR 854; Safdar Ali v. The Crown PLD 1953 FC 93; Hakim Ali and another v. The State 1971 SCMR 432; Nadeem‑ul‑Haq Khan and another v. The State 1985 SCMR 510; P. Durugappa v. State of Mysore AIR 1956 Mysore 40 (V. 43, C 17 May); Bharadwaj Singh v. State AIR 1952 Cal. 616; Abdur Rashid Munshi and 3 others v. The State PLD 1967 SC 498; Ashiq Hussain and another v. The State and 2 others 2003 SCMR 698 and Abdul Sattar v. Sher Amjad and another 2004 YLR 580 ref.

(b) Criminal trial‑‑‑-

‑‑‑‑Burden of proof‑‑‑Burden to prove all the ingredients of the charge always lies on the prosecution and it never shifts to the accused who is entitled to be presumed innocent under the law till such presumption is dislodged‑‑‑Even in a case where the defence plea on its face appears to be sham, prosecution is not absolved of the duty to prove its case.

Rab Nawaz and another v. The State PLD 1994 SC 858; Mst. Shamshad v. The State 1998 SCMR 854; Safdar Ali v. The Crown PLD 1953 FC 93; Hakim Ali and another v. The State 1971 SCMR 432; Nadeem‑ul‑Haq Khan and another v. The State 1985 SCMR 510; P. Durugappa v. State of Mysore AIR 1956 Mysore 40 (V. 43, C 17 May); Bharadwaj Singh v. State AIR 1952 Cal. 616.

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

‑‑‑‑S. 367‑‑‑Language and contents of judgment‑‑‑Section 367, Cr.P.C. is not permissive but imperative and compliance of its terms is mandatory.

Iftikhar Shahid for Appellant.

Akhtar Nawaz for the State.

Date of hearing: 26th December, 2003.

2004 P Cr. L J 1017

[Federal Shariat Court]

Before Saeed‑ur‑Rehman Farrukh, J

TARIQ MASIH‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Jail Criminal Appeals Nos.269/I of 2002 and 6/I of 2003, decided on 12th January, 2004.

(a) Islamic jurisprudence‑‑‑--

‑‑‑‑Embracing of Islam‑‑‑Pre‑requisites‑‑‑No rituals of specific nature in Islam are required to be undergone by a non‑Muslim for embracing Islam‑‑‑All that is necessary is a declaration in this behalf with recitation of "Kalma", belief in one God, the finality of Prophethood of Holy Prophet (peace be upon him) and the Holy Qur'an‑‑‑True Muslim must also declare his/her faith about the earlier Prophets, the divine books revealed unto them and the Day of Judgment.

(b) Islamic jurisprudence‑‑‑-

‑‑‑‑Embracing of Islam‑‑‑Effect‑‑‑Marriage between Christian as a result of embracing Islam stands ipso facto annulled.

Salamat Ali v. The State 1989 PCr.LJ 978; Sardar Masih v. Haider Masih and others PLD 1988 FSC 78 and Mst. Zarina and another v. The State PLD 1988 FSC 105 ref.

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

‑‑‑‑Ss. 10(b) & 16‑‑‑Appreciation of evidence‑‑‑Female accused, who was a Christian after embracing Islam had no longer remained a legally wedded wife of the complainant who continued to follow his original religion of Christiananity Marital relationship between the said accused and the complainant having been severed perpetually she was legally free to enter into marriage with her co accused who had also embraced Islam Marriage in Islam being in the nature of civil contract entered into between man and a woman no formal deed as per “Sharia” was necessary to be drawn to prove that a valid marriage had come into being but in the instant case a “Nikahnama” was also available on record evidencing the marriage of the accused inter se ---No offence cognizable in law, thus, had been committed by the accused ----Accused were acquitted in circumstances.

PLD 2000 Lah. 594; Salamat Ali v. The State 1989 PCr.LJ 978; Sardar Masih v. Haider Masih and others PLD 1988 FSC 78 and Mst. Zarina and another v. The State PLD 1988 FSC 105 ref.

(d) Islamic law‑‑‑

‑‑‑‑Marriage‑‑‑Marriage in Islam is in the nature of a civil contract entered into between man and woman and no formal deed, as per "Sharia", is necessary to be drawn to prove that a valid marriage has come into being.

Javed Aziz Sindhu for Appellant.

Arif Ali Zafar Chohan for the State.

Date of hearing: 12th January, 2004.

2004 P Cr. L J 1039

[Federal Shariat Court]

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

SHABBIR alias KUKKU and 2 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.234/L, 307/L and Criminal Revision No.70/L of 2002, decided on 18th December, 2003.

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

-----Ss. 10(3) & 16 ---Penal Code (XLV of 1860), S.343-----Appreciation of evidence Defence plea that the abductee was a girl of easy virtue and in habit of roaming about after leaving her parents house was not substantiated on record Abductee was a young virgin girl and no earthly reason was available as to why she would go to the extent of putting her own honour and dignity at stake besides ruining the respect of her entire family in the village by leveling false allegation of rape upon her by the accused‑‑‑Account of the fiendish treatment meted out to the abductee by the three accused furnished by her was truthful and was fully supported by medical evidence‑‑‑Solitary statement of the victim if found truthful and confidence‑inspiring in a rape case under the law was sufficient to base conviction‑‑‑Convictions of the accused were maintained in circumstances with some reduction in their sentence.

Muhammad Umar v. The State 1999 PCr.LJ 699; Mst. Nasreen v. Fayaz Khan and others PLD 1991 SC 412 and Muhammad Akram v. The State PLD 1989 SC 742 ref.

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

‑‑‑‑Ss. 10(3) & 16‑‑‑Appreciation of evidence‑‑‑Rape‑‑‑Victim's statement when sufficient for conviction‑‑‑Conviction can be based in a rape case on the solitary statement of the victim if the same is found truthful and confidence‑inspiring.

Muhammad Umar v: The State 1999 PCr.LJ 699; Mst. Nasreen v. Fayaz Khan and others PLD 1991 SC 412 and Muhammad Akram v. The State PLD 1989 SC 742 ref.

Zaka‑ur‑Rehman and M. Irshad Chaudhry for Appellants.

Muhammad Saeed Ansari for the Complainant.

Raja Abdur Rehman, A.A.‑G. with Ch. Muhammad Ayub for the State.

Date of hearing: 18th December, 2003.

2004 P Cr. L J 1071

[Federal Shariat Court]

Before Saeed‑ur‑Rehman Farrukh, J

MUHAMMAD ANWAR ‑‑‑Petitioner

Versus

Mst. SHAGUFTA AHMAD and 2 others‑‑‑Respondents

Criminal Revision No.70/L of 2003, decided on 18th March, 2004.

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

‑‑‑‑S. 265‑K‑‑‑Power of Court to acquit accused‑‑‑Scope‑‑‑No embargo had been placed on the powers of the Trial Court to acquit accused at any stage‑‑‑Such power can be exercised even on the first date of hearing when accused entered appearance, subject, of course, to the condition that Court was satisfied, on the basis of material placed before it, that charge was groundless or that no possibility existed of ultimate conviction of accused.

Muhammad Tufail v. Muhammad Suleman PLD 1995 Lah. 293; Yasin Khan Babar v. The State 1995 PCr.LJ 1426 and Muhammad Tahir v. The State 1991 Per. LJ 644 ref.

(b) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑--

‑‑‑‑S. 5 & Sched‑‑‑"Suit for dissolution of marriage" and "suit for jactitation"‑‑‑Distinction‑‑‑Marked difference existed between suit for dissolution of marriage and suit for jactitation‑‑‑In suit for dissolution of marriage, existence of valid marriage was admitted by wife and decree was sought by her for its dissolution from Qazi/Judge Family Court on one or more grounds, enumerated in "Dissolution of Muslim Marriage Act, 1939"‑‑‑In suit for jactitation, Qazi/Judge Family Court was asked to declare that at no point of time marriage had taken place, thereby putting a permanent restraint on the opponent from claiming the lady to be his lawful wedded wife.

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

‑‑‑‑S. 265‑K‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10‑‑‑Acquittal of accused‑‑‑Charge against accused was wholly groundless and no possibility existed of their conviction, even if full‑fledged trial was allowed to be held‑‑‑Trial Court, in circumstances, did not commit any illegality in acquitting accused at the initial stage of case.

Arif Javed Qureshi for Petitioner.

Rana Ibrar Ahmed Khan for Respondents.

Rana Muhammad Younis for the State.

Date of hearing: 18th March, 2004.

2004 P Cr. L J 1102

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, C. J. Dr. Fida Muhammad Khan and Saeed‑ur‑Rehman Farrukh, JJ

KHADIM HUSSAIN ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Jail Criminal Appeal No.20/Q of 2001, decided on 14th January, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(c)/404‑‑‑Appreciation of evidence‑‑‑Circumstantial evidence‑‑­Significance‑‑‑Occurrence, in the present case, no doubt was unseen, but conviction could be based on circumstantial evidence alone‑‑‑Absence of direct evidence, would not mean that guilt of accused could not be fixed‑‑‑Circumstantial evidence was the evidence of basic facts wherefrom, further fact, inference or natural conclusion, according to reason and logic, could be deduced‑‑‑Strength of such evidence as per circumstances of the case, however, could vary‑‑‑Circumstantial evidence, often was stronger and more satisfactory than direct evidence because it was not liable to delusion or fraud‑‑‑Where direct evidence was either not available or witnesses were not deemed wholly, credible, circumstantial evidence, could be more convincing‑‑‑Test was that it should not only be relevant, but consistent and conclusive as well and should be so convincing that circumstances or facts proved on record, must lead to a single conclusion‑‑‑In order to carry conviction, however, it must be incompatible with any reasonable hypothesis of innocence of accused‑‑‑Where either direct evidence was not available or had not been found trustworthy, conviction could be recorded on the basis of circumstantial evidence alone subject to the condition that all the circumstances must lead to the guilt of accused and no link in the chain should be missing‑‑‑Events, in the present case, which took place subsequently, i.e. chase of accused and recovery of robbed property from possession of accused alongwith crime weapon, had established veracity of statements of prosecution witnesses‑‑‑One of the prosecution witnesses was an independent witness and in absence of any enmity or motive to falsely implicate accused with the crime, his statement too, could not be doubted‑‑‑Since empties recovered from the place of occurrence wedded with the crime weapon, it was rightly inferred by the Trial Court that accused was responsible for commission of offence.

Talib Hussain v. The State 1995 SCMR 1538; Muhammad Arshad v. The State 1992 SCMR 1187; Muhammad Fayyaz alias Shako v. The State PLD 1984 SC 445; Khuda Bakh'sh v. The State 2003 SD 690; Daulat Ali v. Muhammad Aslam and others 1999 SCMR 845; Siraj v. The Crown PLD 1956 FC 123; Allah Ditta v. The State PLD 1958 SC 290; The State v. Manzoor Ahmad PLD 1966 SC 664 and Karamat Hussain v. The State 1977 SCMR 15 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302 & 404‑‑‑Appreciation of evidence‑‑‑Sentence‑‑‑Accused had been found responsible to commit offence of murder with robbery‑‑‑Trial Court appeared to have been misled in convicting accused under S.404, P.P.C. because it was not a case of dishonest misappropriation of property possessed by deceased, but was a simple case of robbery in course whereof murder was also committed‑‑‑Trial Court also was not justified in convicting accused under S.302(c), P.P.C. for committing murder because accused neither being a minor or insane nor a descendant or ascendent of the deceased within the purview of S.306, P.P.C., his case was not covered by subsection (c) of S.302, P.P.C.‑‑‑If case of accused did not fall within the ambit of subsection (a) of S.302, P.P.C., for want of proof of Qatl‑e‑Amad liable to Qisas, then Trial Court ought to have convicted accused under subsection (b) of S.302, P.P.C.‑‑‑Person guilty of Qatl‑e‑Amad, could be punished with death as Qisas whereas under subsection (b) of S.302; P.P.C. a person guilty of Qatl‑e­Amad could be punished with death or imprisonment for life as Ta'zir, having regard to the facts and circumstances of the case, if proof in either of forms specified under S.304, P.P.C. was not available ­Subsection (c) of S.302, P.P.C. dealt with cases of entirely different categories e.g. of minors, insane persons, descendant or ascendents, who, by virtue of S.306, P.P.C., were immuned from punishment under S.302(a), P.P.C.‑‑‑Conviction of accused was altered from under S.302(c), P.P.C. to that of under S.302(b), P.P.C. and sentence of 14 years imprisonment inflicted on him by Trial Court for committing murder of deceased, was maintained‑‑‑Conviction and sentence recorded against accused under S.404, P.P.C., however, was set aside and instead he was convicted under S.392, P.P.C. and was sentenced accordingly.

Muhammad Sharif Janjua for Appellant.

Qari Abdul Rashid for the State.

Date of hearing: 14th January, 2004.

2004 P. Cr. L J 1117

[Federal Shariat Court]

Before Saeed‑ur‑Rehman Farrukh and Zafar Pasha Chaudhary, JJ

SAJIDA PARVEEN‑‑‑Appellant

Versus

MUHAMMAD BASHIR and another‑‑‑Respondents

Criminal Appeal No.41/I of 2002, decided on 24th March, 2004.

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

‑‑‑‑S. 10(3)‑‑‑Criminal Procedure Code (V of 1898), S.417‑‑‑Appeal against acquittal‑‑‑Principles‑‑‑Girl had leveled allegation of commission of Zina with her by her real father and that, too repeatedly over a period of seven/eight years‑‑‑Re‑appraisal of evidence in case of appeal against acquittal was not permissible and impugned judgment could be interfered with only in the case if it was found to be perverse or the outcome of gross misreading or non‑reading of material evidence available on record or finding sought to be interfered with was found to be wholly artificial, shocking or ridiculous‑‑‑Judgment of Trial Court was not sustainable in law as it not only suffered from non‑reading of material evidence, but also from the failure on part of Trial Court to appraise evidence by following settled principles for appreciation of testimony of prosecution witnesses in a criminal case‑‑‑Trial Court was unjustifiably swayed by the fact that it was highly improbable for a father to commit rape with his own daughter; that was despite the fact that there was evidence of un‑impeachable character available on record to prove guilt of accused beyond doubt‑‑‑Appeal against acquittal passed by Trial Court was set aside and accused was convicted for offence under S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to undergo ten years' R.I.

Khadim Hussain v. Manzoor Hussain Shah and others 2002 SCMR 261 ref.

Malik Jawad Khalid for Appellant.

Raja Muhammad Farooq for Respondents.

Muhammad Sharif Janjua for the State.

Date of hearing: 25th February, 2004.

2004 P Cr. L J 1199

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan S.A. Manan and Zafar Pasha Chaudhary, JJ

MUHAMMAD YOUNAS and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 128/L, 141/L and Murder Reference No. 16/L of 2003, decided on 18th March, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)/34‑‑‑Appreciation of evidence‑‑‑Sentence, reduction in‑‑­Reliable and believable evidence regarding the abduction of deceased and her last seen with the accused having come on record, defence was duty bound to explain as to how and in what manner the deceased was done to death‑‑‑In absence of any explanation the legal as well as equitable presumption would be that the abductor had murdered the deceased‑‑­Deceased was abducted by the accused who had a motive to do the same and in between her abduction and murder nobody had seen her alive‑‑­Mere claim by accused of having been falsely implicated in the case was not acceptable qua murder of the deceased‑‑‑Conviction of accused was maintained accordingly‑‑‑Fact whether the accused alone was responsible for the murder of the deceased or his companions also contributed in the murder had remained in the dark and in such a situation benefit of lesser sentence could be given to the accused‑‑‑Sentence of death of accused was reduced to imprisonment for life in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑S. 302(b)/34‑‑‑Appreciation of evidence‑‑‑Circumstantial evidence‑‑­Legal presumption is also a piece of circumstantial evidence among other pieces of evidence.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)/34‑‑‑Appreciation of evidence‑‑‑Accused being a young boy of 15/16 years at the time of occurrence, his collaboration with his maternal‑uncle to abduct the deceased for illicit purpose did not appeal to reason‑‑‑Accused had no motive to abduct the‑ deceased or thereafter to murder her ‑‑‑Co‑accused had obtained the services of two or three other persons and as such association of accused in the crime was hardly required‑‑‑Medical evidence or motive did not directly connect the accused with the commission of offence‑‑‑Accused was acquitted on benefit of doubt in circumstances.

Muhammad Asif Bhatti for Appellant (in Criminal Appeal No. 128/L of 2003).

Muhammad Hayat Khan for the State (in Criminal Appeal No. 128/L of 2003).

Rai Muhammad Zafar Bhatti for Appellant (in Criminal Appeal No.141/L of 2003).

Muhammad Hayat Khan for the State (in Criminal Appeal No. 141/L of 2003).

Date of hearing: 18th March, 2004.

2004 P Cr. L J 1231

[Federal Shariat Court]

Before Saeed‑ur‑Rehman Farrukh and S.A. Rabbani, JJ

Dr. WASEEM ANSARI‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.6/K, Criminal Revision No.8/K and Criminal S.M Notice No. 1/K of 2002, decided on 5th March, 2004.

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

‑‑‑‑S. 10(3)‑‑‑Appreciation of evidence‑‑‑Extraordinary delay of 47 days in lodging the F.I.R. had no explanation‑‑‑Complainant had a motive to falsely involve the accused in the case‑‑‑Admittedly the complainant after losing all hopes to marry the accused had gone to police with a story of rape by the accused‑‑‑Story of sexual assault as set up by the complainant was not only improbable but was absurd too which was not supported by any direct evidence‑‑‑Conduct of the complainant at the time of alleged sexual assault on her by the accused was not believable‑‑‑Investigating Officer had rightly reached the conclusion that the complainant after having become disappointed in her efforts to marry the accused, had got the case registered against him‑‑‑Accused was acquitted in circumstances.

Shaukat Hussain Zubedi for Appellant.

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

Date of hearing: 5th March, 2004.

2004 P Cr. L J 1257

[Federal Shariat Court]

Before Zafar Pasha Chaudhry and S.A. Rabbani, JJ

PATHAN and another‑‑‑Appellants

Versus

NASEER MUHAMMAD and another‑‑‑Respondents

Criminal Appeal No.42/K of 2000, decided on 5th December, 2003.

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

‑‑‑‑S. 12‑‑‑Penal Code (XLV of 1860), Ss.342 & 377‑‑‑Appreciation of evidence‑‑‑Evidence of complainant, corroborated by Medical evidence and Chemical Examiner's report had proved that complainant was subjected to sodomy by accused persons‑‑‑Even in view of evidence of complainant himself. no charge of kidnapping or wrongful confinement was proved on record‑‑‑Conviction of accused under S.12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and S.342, P.P.C. had been set aside‑‑‑Since charge of sodomy was proved against accused persons, they were convicted under S.377, P.P.C..‑‑‑Accused were convicted after six years of commission of offence and were in jail for the last about 3‑1/2 years‑‑‑Before that accused also remained in custody for certain periods during the trial‑‑‑Accused in circumstances were sentenced to the imprisonment already suffered by them accordingly.

Masood Shehryar for Appellants.

Qasim Mir Jat for the State.

Date of hearing: 5th December, 2003.

2004 P Cr. L J 1292

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, C.J. Dr. Fida Muhammad Khan and Saeed‑ur‑Rehman Farrukh, JJ

MUHAMMAD JAVAID and others‑‑‑Appellants

Versus

THE STATE and others‑‑‑Respondents

Jail Criminal Appeal No.89/I and Criminal Appeal No.86/I of 2000 and Murder Reference No.21/I of 2002, decided on 26th January, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11‑‑‑Appreciation of evidence‑‑‑Complainant, abductee and the sister of the complainant were natural witnesses of the occurrence who were admittedly present in their house where the incident had taken place‑‑‑Ocular testimony was consistent in material particulars which had remained unrebutted and was trustworthy and confidence‑inspiring and the same could not be brushed aside merely on the ground of inter se relationship‑‑‑Medical evidence had fully corroborated the ocular version regarding the murder of the deceased‑‑‑Motive for the occurrence had been established ‑‑‑F.I.R. was promptly lodged‑‑‑Incident had taken place in broad‑daylight‑‑‑Accused was well‑known to the whole family‑‑‑Single shot injury which had proved fatal was attributed directly to the accused who had fired at the vital parts of the body of the deceased lady with a carbine when she had come forward only to rescue her daughter‑‑‑Murder was followed by series of offences including abduction‑‑‑No mitigating circumstance was available to favour of accused‑‑‑Convictions and sentences of accused were maintained in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11‑‑‑Appreciation of evidence‑‑‑Related witness‑‑­Principles‑‑‑Relationship of a witness with deceased by itself may not be sufficient to discredit his testimony where ruthless murder of his very close relative has taken place, particularly when he has no motive to falsely involve an innocent person as an accused.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Constitution of Pakistan (1973), Art.203‑DD‑‑‑Appeal against acquittal‑‑‑Record did not show that the accused had shared the common intention of the principal accused in causing murder of the deceased lady‑‑‑Allegation that the accused armed with a rifle was present at the scene of occurrence and had raised a "Lalkara" to the inmates of the house was neither present in the F.I.R., nor in the statements of prosecution witnesses under S.161, Cr.P.C.‑‑‑Eye­witnesses had also not mentioned the presence of accused on the spot at the relevant time‑‑‑Accused after his acquittal had gained double presumption of innocence and the evidence brought on record did not lead to the only conclusion of his guilt‑‑‑Appeal against acquittal of accused was dismissed accordingly.

Malik Abdul Haq for Appellant (in Jail Criminal Appeal No.89/I of 2000).

Sardar Muhammad Ishaque for Appellant (in Criminal Appeal No.86/I of 2000).

Muhammad Sharif Januja for the State.

Dates of hearing: 12th and 26th January, 2004.

2004 P Cr. L J 1379

[Federal Shariat Court]

Before S.A. Manan, J

Mst. SAJIDA alias SHAZIA and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.3911 of 2004, decided on 29th April. 2004.

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

‑‑‑‑S. 10(2)‑‑‑Appreciation of evidence‑‑‑Eye‑witnesses who were actually the informers, according to F.I.R., had entered the house of accused and seen them committing Zina‑‑‑Both the said witnesses were summoned in the Court at the time of arguments and were asked to explain as to under what law, they had trespassed into the house of accused and why they had violated the privacy of their home, but they could not offer any sufficient explanation‑‑‑Both these witnesses were also not the residents of the locality of the occurrence‑‑‑None ,of the inhabitants of the locality had come forward to support the prosecution story‑‑‑Medical evidence and also the negative reports of the Chemical Examiner had unmistakably proved that the offence of Zina had not been committed and the accused ladies had been falsely implicated in the case‑‑‑Accused were acquitted in circumstances‑‑‑Eye‑witnesses had admitted their, guilt and tendered unqualified apology for having made false statements with the undertaking not to repeat the same in future who were directed to furnish surety bonds in this respect and suo moth notice against them was discharged accordingly.

Abdul Qayyum v. The State 1991 PCr.LJ 568; Riaz v. S.H.O. Police Station Jhang City and 2 others PLD 1988 Lah. 35 and Khawaja Ahmad Tariq Rahim v. Federation of Pakistan and another PLD 1991 Lah. 78 ref.

Muhammad Yousaf Zia for Appellants.

Shafqat Munir Asstt. A.‑G. and M. Rafaqat Ali for the State.

Date of hearing: 29th April, 2004.

2004 P Cr. L J 1394

[Federal Shariat Court]

Before Ch. Ejaz Yousdf, C. J. Dr. Fida Muhammad Khan and Saeed‑ur‑Rehman Farrukh, JJ

GUL BAHAR‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 106/Q of 2000 L/W and Criminal Reference No.5/I of 2000, decided on 12th April, 2004.

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

‑‑‑‑S. 17(3)‑‑‑Penal Code (XLV of 1860), S.392‑‑‑Appreciation of evidence‑‑‑None of the witnesses having been subjected to the requirement of Tazkiya‑tush‑Shuhud as envisaged by S.7 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, no Hadd punishment could be inflicted on the accused‑‑‑Prosecution witnesses including the complainant were all independent witnesses who had made consistent statements and their testimony inspired confidence ‑‑‑Eye­witnesses had also identified the accused as one of the culprits who had snatched their motorcycle‑‑‑Defence plea was hot substantiated on record by the accused‑‑‑Case against accused was of simple robbery‑‑­Conviction and sentence of accused under S.17(3) of the Ordinance were consequently set aside and he was convicted under S.392, P.P.C.‑‑­Accused was 18 years of age when he had made his statement under S.‑W, Cr.P.C.‑‑‑Accused was sentenced to five years' R. I. with a fine of Rs.1,000 in circumstances.

Abdul Jamal Mandokhail for Appellant.

Abdul Karim Khan Yousafzai for the State. .

Date of hearing: 12th April, 2004.

2004 P Cr. L J 1412

[Federal Shariat Court]

Before Ch. Ejaz Yousaf C.J., Dr. Fida Muhammad Khan and Saeed-ur-Rehman Farrukh, JJ

JAN MUHAMMAD ---Appellant

Versus

THE STATE ---Respondent

Criminal Appeal No. 109/Q and Criminal Revision No. 11/Q of 2000, decided on 13th April, 2004.

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

----S. 342---Power to examine the accused---Intent and import---Section 342, Cr.P.C. is based on maxim "audi alteram partem", namely that nobody should be condemned unheard---Accused has an inalienable right to be heard and given a chance to offer his explanation qua every bit of incriminating evidence/circumstances brought on record during the course of trial---Circumstances or items of evidence appearing on record against the accused must necessarily be put to him if they or any of them could singly or read in juxtaposition with other evidence form basis of conviction, and failure to do so would cause miscarriage of justice---In such a situation the omission to ask question about the said evidence or circumstances' would constitute fatal infirmity rendering the trial to be vitiated or necessitating retrial, depending on the circumstances of each case.

Syed Inayat Hussain Shah v. The Crown PLD 1954 Sind 256; Rahim Bakhsh v. The Crown PLD 1952 FC 1; Aminul Haqe's case; Din Muhammad v. The Crown 1969 SCMR 777; Munir Ahmad alias Munni v. The State 2001 SCMR 56; Asif Ali Zardari and another v. The State PLD 2001 SC 568 and Ashraf and others v. The State 2004 PCr.LJ 42 ref.

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

----Ss. 302(b) & 392---Criminal Procedure Code (V of 1898), S.342--­Statement of accused under S.342, Cr.P.C. not properly recorded---Case remanded---Testimony of a prosecution witness, whatever evidentiary worth it might carry, was an important incriminating piece of evidence against the accused---Allegation of the prosecution that the accused had brought the car of the deceased to the workshop, of the prosecution witness was not put to the accused in his examination under S.342, Cr.P.C.---Accused was also not questioned as to whether at the time of raid by the police at the workshop he was present there and that how he came to possess the vehicle and its documents and also that he had led to the recovery of said documents---Accused, thus, was gravely prejudiced due to his defective and illegal, examination and his trial stood vitiated---Conviction and sentences of accused were consequently set aside and the case was remanded to the Trial Court for trial afresh from the stage of recording the statement of accused under S.342, Cr.P.C. in accordance with law.

Syed Inayat Hussain Shah v. Crown PLD 1954 Sind 256; Rahim Bakhsh v. The Crown PLD 1952 FC 1; Aminul Haqe's case; Din Muhammad v. The Crown 1969 SCMR 777; Munir Ahmad alias Munni v. The State 2001 SCMR 56; Asif Ali Zardari and another v. The State PLD 2001 SC 568 and Ashraf and others v. The State 2004 PCr.LJ 42 ref.

Muhammad Aslam Chishti for Appellant.

S.A.M. Qadri for the Complainant.

Abdul Karim Khan Yousafzai for the State.

Date of hearing: 13th April, 2004.

2004 P Cr. L J 1433

[Federal Shariat Court]

Before S.A. Manan, J

TASAWAR ALI ---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No.299/I of 2002, decided on 30th January, 2004.

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

----S. 16---Appreciation of evidence---Accused had allegedly enticed away the victim girl who remained with him for one day, but she was admittedly neither subjected to Zina-bil-Jabr nor he did any indecent act with her---No such occurrence as stated by the prosecution, thus, had ever taken place and provisions of S.16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, were not attracted in the case ---F.I.R. had been lodged by the brother-in-law of the alleged abductee after six days of the occurrence without any explanation for the delay, who had cooked up the entire case as he was not willing to get the accused married with the victim who happened to be his sister-in-law--­Trial Court had failed to consider the entire evidence in its true perspective which had resulted in complete failure of justice to the accused who was subjected to hazard litigation against him---Accused was acquitted in circumstances.

Syed Muzahir Naqvi for Appellant.

Ch. Rafaqat Ali for the State.

Date of hearing: 30th January, 2004.

2004 P Cr. L J 1474

[Federal Shariat Court]

Before Zafar Pasha Chaudhary, J

GHULAM SHABBIR KHAN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.52/L and 57/I of 2003, decided on 2nd April, 2004.

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

----Arts. 3 & 4---Appreciation of evidence---Police witnesses--­Credibility-- Principles---Police Officer or a Government official is as good a witness as anyone else unless he is proved to have a motive or malice to falsely implicate an innocent person.

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

----Arts. 3 & 4---Appreciation of evidence---Fifteen officials of different ranks and positions belonging to police and Anti-Narcotics Force constituting the raiding party could not be expected to have joined hands merely to falsely implicate the accused---Deposition of the said witnesses was, supported by the recovery of huge quantity of illicit liquor comprising of 400 bottles from the accused which could not be falsely planted on them---Recovered bottles as per Chemical Examiner's report contained liquor which was being transported in a rickshaw---Conviction and sentence of accused under Art.3 of the Prohibition (Enforcement of Hadd) Order, 1979, were maintained in circumstances---obviously if some narcotic was kept for sale then the element of possession by the holder was necessarily present---Conviction of accused under Art.4 of the Prohibition (Enforcement of Hadd) Order, 1979, therefore, was neither legal nor appropriate and the same alongwith its sentence was set aside accordingly.

1992 SCMR 108 and 1996 PCr.LJ 1856 ref.

Muhammad Sharif Janjua and Haji Fazal-ur-Rehman for Appellants.

M. Rafaqat Chaudhry for the State.

Date of hearing: 2nd April, 2004.

2004 P Cr. L J 1513

[Federal Shariat Court

Before Zafar Pasha Chaudhry, J

ABDUR RAZZAQ---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No.62/I of 2003, decided on 29th March, 2004.

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

----Ss. 10(3) & 7---Penal Code (XLV of 1860). S.364-A---Appreciation of evidence---Accused was proved on record to have kidnapped the victim girl and to have subjected to her to Zina-bil-Jabr subsequently--­School leaving certificate of the accused and his confinement in Juvenile Jail had established that he was a minor at the time of the commission of the offence---Conviction of accused under S.10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was therefore, altered to one under S.7 of the said Ordinance---Accused though was not an adult, yet he was a grown up boy and he had subjected a minor girl to Zina-bil­-Jabr--- Accused, thus, did not deserve any leniency and he was sentenced to undergo five years R.I.---Sentence of fine of accused was set aside as admittedly he was a pauper---Forcible or deceitful abduction of the girl having not been proved, conviction and sentence of accused under S.364-A, P.P.C. were set aside and he was acquitted of the said charge in circumstances.

Prof. Musharaf Ali Jami for Appellant.

Fazal-ur-Rehman Rana for the State.

Date of hearing: 29th March, 2004.

2004 P Cr. L J 1547

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan, S.A. Manan and Zafar Pasha Chaudhry, JJ

MUHAMMAD SHARIF and 3 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.39/L, 51/L of 1998 L.W. Criminal Murder Reference No.6/L of 1998, decided on 11th March, 2004.

Penal Code (XLV of 1860)---

----S 302(b)/34--Appreciation of evidence---Defence plea stood falsified by medical evidence---All the wounds sustained by the deceased, according to medical evidence, had been caused by only one shot--­Accused had motive for the occurrence and he was proved to have alone fired a shot from his gun on the chest of the deceased which proved fatal---Incident having taken place in daylight there was no mistaken identity---Conviction of accused was upheld accordingly--­Occurrence had taken place in front of the shop of accused and he did not repeat the fire---Motive alleged by the prosecution was too vague and unconvincing---Sentence of death of accused was altered to imprisonment for life in circumstances---Participation of three co­ accused in the incident was not established on record and they were consequently acquitted of the charge.

Aftab Farrukh and Mian Muhammad Nawaz for Appellants.

Sardar Khurram Latif Khosa for the Complainant.

Abdul Majeed Chishti for the State.

Dates of hearing: 10th and 11th March, 2004.

2004 P Cr. L J 1580

[Federal Shariat Court]

Before S.A. Manan and S.A. Rabbani, JJ

MUHAMMAD IQBAL and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.24/1 of 2004, decided on 21st April, 2004.

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

----S. 10(3)---Appreciation of evidence---Mother of victim girl after death of her husband married one of the accused persons---Alleged victim before registration of case was carrying on pregnancy of 29 weeks/about six months---On her allegation that her step-father had committed Zina-bil-Jabr with her, maternal uncle of victim who was cousin of deceased husband of mother of victim got F.I.R. registered against accused---No other direct or indirect evidence was available to connect accused with commission of crime except .bare version of victim who herself seemed to be a girl of easy virtue and that fact was supported by evidence of Lady Doctor who deposed that hymen of victim was torn completely from all sides which had shown that alleged victim was used for sex activities more often---Prosecution witness had admitted in cross-examination that a civil litigation was pending between him and mother of victim and also a criminal complaint against him---Mother of alleged victim who denied commission of offence with victim had alleged that after death of her husband, she entered wedlock with accused against consent of complainant who was cousin of deceased. and he was unhappy with that marriage and he did not allow her to settle in the house of her deceased husband---Lady alleged that she demanded her share in the house and other belongings of her deceased husband, but complainant did not give it to her---Further allegation by the lady was that case was lodged by complainant because of grudge over her second marriage with accused and because of her demand for share in the estate of deceased---Conduct of victim and her character was not free from doubt and she had been roaming about freely---Victim was not residing with her mother, but had been visiting her aunt who herself was involved in Hudood case---No reliance could be placed on statement of victim who concealed pregnancy for more than six months---Prosecution having failed to prove its case beyond any reasonable doubt, conviction and sentence recorded against accused by Trial Court, were set aside and they were ordered to be released:

Qazi Sadar-ud-Din Alvi, for Appellants.

Anees M. Shehzad for the State.

Date of hearing: 21st April, 2004.

2004 P Cr. L J 1598

[Federal Shariat Court]

Before S.A Manan and S.A. Rabbani, JJ

NAEEM-UD-DIN BUTT --- Appellant

Versus

QALB-E-ABBAS and another---Respondents

Criminal Appeal No. 164/I of 2003, decided on 8th April, 2004.

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

----S.12--Penal Code (XLV of 1860), S.377---Constitution of the (1973), Art.203-DD---Appeal against acquittal---Complainant could not witness the occurrence from the roof top of his house---No eye-witness was available in the case---Evidence regarding the occurrence was contradictory---Statements of the victim and the complainant did no, inspire confidence---Money dispute existed between the parties---Nothing was available on record to even show that the accused had kidnapped the victim---Accused was not medically examined to prove his potency and prosecution was bound to suffer due to such default and negligence of police---Trial Court after having considered the case from all angles had. rightly acquitted the accused on benefit of doubt---Appeal against acquittal of accused was dismissed accordingly.

Mst. Jallan v. Muhammad Riaz and others PLD 2003 SC 644; , Nazir and others v. The State PLD 1962 SC 269; Ghulam Sikandar and another v. Mamraiz Khan and others PLD 1985 SC 11; Iqbal alias Bhala and 2 others v. The State 1994 SCMR 1; Abdul Ghafoor v. The State 2000 SCMR 919; Raqib Khan v. The State and another 2000 SCMR 163; Muhammad Amin v. The State 2000 SCMR 1784; Muhammad Safdar v the State PLD 2002 SC 781; Muhammad Shafique v. Akhtar Shah and 8 others 1997 SD SC 756 and Duran Bibi v. Jehanzeb and others PLD 2001 Quetta 103 ref

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

------Art. 203-DD---Appeal against acquittal---Guidelines---Accused after his acquittal by the Trial Court enjoys double presumption of innocence and the Appellate court while examining the case of such accused must be very careful and cautious in interference with the acquittal order--­Normally order of acquittal should not be set aside merely because some other view is possible---Interference with the order of acquittal, however, can be made where Trial Court either has misread the evidence or it has received the evidence illegally.

Mst Jallan v. Muhammad Riaz and others PLD 2003 SC.644; Nazir and others v. The State PLD 1962 SC 269; Ghulam Sikandar anti another v Mamraiz Khan and others PLD 1985 SC 11; Iqbal alias Bhals and 2 others v. The State 1994 SCMR 1; Abdul Ghafoor v. The State 2000 SCMR 919; Raqib Khan v. The State and another 2000 SCMR 163; Muhammad Amin v. The State 2000 SCMR 1784; Muhammad Safdar v. the State PLD 2002 SC 781; Muhammad Shafique v. Akhtar Shah and 8 others 1997 SCMR 1964 and Duran Bibi v Jehanzeb .and others PLD 2001 Quetta 103 ref.

Basharat Ullah Khan for Appellant.

Syed Abdul Aziz Sh or Respondent.

M. Shartf Janjuua for the State.

Date of hearing: 8th April, 2004.

2004 P Cr. L J 1616

[Federal Shariat Court]

Before Saeed-ur-Rehman Farrukh, J

Malik MUHAMMAD HAYAT and another---Appellants

Versus

THE STATE---Respondent

Jail Cr. Appeal No.264/I of 2003 and Cr. Suo Motu Revision No.2/I of 2004, decided on 14th May, 2004.

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

----Ss. 10(2) & 16---Appreciation of evidence---F.I.R. was lodged after two years of the alleged occurrence with a false explanation which had adversely reflected upon the genuineness of the prosecution story--­Prosecution had failed to explain as to why the documentary evidence available in the form of the ex parte decree of dissolution of marriage between the complainant and the female accused, was not produced during the trial and had relied on the bald assertion of the complainant that the suit for dissolution of marriage filed by the female accused was dismissed---Trial Court had completely omitted to notice the said judgment exhibited on record, otherwise in the face of such irrefutable documentary evidence it could not have recorded a finding against the accused---Accused were acquitted in circumstances.

(b) Criminal trial---

----Evidence---Where documentary evidence is available it has to be produced in Court to prove the crucial facts involved in the case and oral evidence in respect thereof is rendered inadmissible.

Ch. Shafique Ahmad Khan for Appellants.

Fazal-ur-Rehman Rana for the State.

Date of hearing: 14th May, 2004.

2004 P Cr. L J 1625

[Federal Shariat Court]

Before S.A. Manan, J

MUHAMMAD RAFIQUE alias BAGHELA and 2 others---Appellants

Versus

THE STATE---Respondent

Jail Criminal Appeal No. 152/I of 2002, decided on 6th June, 2003.

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

----Ss. 10(2) & 16---Appreciation of evidence---Long delay of 50 days in reporting case was not explained which was fatal to the case of prosecution---Prosecution witnesses who were relatives of complainant were chance witnesses as they were not residing in near about houses of complainant and it was not possible to believe as to how they suddenly appeared---Evidence of such witnesses could not be safely relied upon--­Alleged abductee had many occasions when she could release herself from the clutches of accused, but she herself could not avail said occasions---Female prosecution witness also gave no help to prosecution, who was confronted with her earlier statement under S.161, Cr.P.C. where she admitted some of important events not earlier recorded--­Medical evidence did not show that there were signs of violence on the person of alleged abductee---Prosecution having failed to prove case against accused, sentence and conviction awarded to them by Trial Court being unjustified in law were liable to be set aside.

M. Saliheen Mughal for Appellants.

Syed Muzahir Naqvi for the State.

Date of hearing; 6th June, 2003.

2004 P Cr. L J 1632

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan, J

SHAHID IQBAL and another---Appellants

Versus

THE STATE---Respondent

Jail Criminal Appeals Nos.26/I and 32/I of 2002, decided on 17th June, 2003.

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

----S. 10(2)---Appreciation of evidence---Delay of 11 days in lodging F.I.R. was not satisfactorily explained with plausible reasons---Mere delay, per se though was not sufficient to disbelieve case of prosecution and falsify testimony of witnesses, but other circumstances in the case were to be taken into consideration and given due weight---Accused had filed suit for dissolution of marriage against complainant two days before lodging of F.I.R. ---Contents of the plaint fully supported defence plea taken by accused in her statement made under S.342, Cr.P.C.---No other evidence was on record to show that somebody had seen both accused committing Zina with each other---No Medico-Legal Report or Chemical Examiner's report was obtained to support allegation of Zina---Accused lady was not recovered from the company of her co-accused---Case being of no evidence and prosecution having not been able to bring home guilt of both accused conviction and sentences awarded to them by Trial Court were, set aside and they were acquitted of the charge, in circumstances.

Syed Muzahir Naqvi for Appellant (in Jail Criminal Appeal No.26/I of 2002).

Shabbir Alam for, Appellant (in Jail Criminal Appeal No. 212/I of 2002).

Nadeem Mukhtar Chaudhry for the State.

Date of hearing: 17th March, 2003.

2004 P Cr. L J 1641

[Federal Shariat Court]

Before S.A. Manan, J

MUHAMMAD ZAMEER---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No.276/I of 2002, decided on 16th October, 2003.

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

----Ss. 10(3)/18----Appreciation of evidence---Sentence, reduction in--­Trial Court had convicted accused on the ground that he had entered the house of complainant and made attempt to commit Zina-bil-Jabr with her but on the arrival of witnesses he fled away---Finding of Trial Court showed that case was not where Zina-bil-Jabr had actually been committed---Trial Court in that view of the matter, held the accused guilty and convicted him under Ss.18 and 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Accused had requested that sentence of two years awarded to him be reduced to what he had already undergone---Accepting request of accused sentence of two years' R.I. awarded by Trial Court, was reduced from two years R.I. to what he had already undergone and accused was directed to be released.

Saliheen Mughal for Appellant.

M. Sharif Janjua for the State.

Date of hearing; 16th October, 2003.

2004 P Cr. L J 1651

[Federal Shariat Court]

Before Saeed-ur-Rehman Farrukh, J

MUHAMMAD TARIQ---Petitioner

Versus

THE STATE and another---Respondents

Crl. Rev. No. 110/L of 2003, decided on 8th December, 2003.

Penal Code (XLV of 1860)---

----S. 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12 Qanun-e-Shahadat (10 of 1984), Art.73---Constitution of Pakistan (1973), Art.203.DD---Appreciation of evidence---Application for summoning of carbon copy of report of Chemical Examiner---While trial of case was underway, it was found that report of Chemical Examiner-allegedly sent to police, was not available on record--­Application moved by accused for summoning carbon copy of said report having been rejected by Trial Court, accused had filed revision against rejection of his application---Cause of justice could not be permitted to be scarified at the alter of technicalities---Anal swabs of alleged victim were sent to Chemical Examiner for report which report was prepared by him, but same appeared to have been lost---Said report was likely to have important bearing on outcome of the case---Prosecution was duty bound to tender same in the Court during the trial and question whether original report reached the Investigating Officer or was misplaced by police while preparing the final challan report was inconsequential---Prosecution in all fairness should not have opposed prayer of accused to bring on record certified copy of the report of Chemical Examiner---Court was to ensure that all the relevant evidence/material was brought on record before adjudicating upon the case---Photostat copy of original report of Chemical Examiner fell under the purview of Art. 73 of Qanun-e-­Shahadat, 1984 and since the original was proved to be lost, it was only just and fair that same was ordered to be placed on record arid duly exhibited---Trial Court had failed to notice settled principle that no one could be permitted to put premium on its own lapse--While rejecting application of accused for summoning carbon copy of report of Chemical Examiner, it was not ensured that no prejudice would be caused to accused due to future of prosecution to produce that material piece of evidence on, record--- Federal Shariat Court accepting revision set aside order of Trial Court with the direction to summon concerned officer from the office of Chemical Examiner and ensure that certified/carbon copy of report of Chemical Examiner was duly brought on record and exhibited.

Ch. Muhammad Anwar-ul-Haq for Petitioner

Muhammad Younas Rana for the State.

Tanvir Iqbal Sand for the Complainant.

Date of hearing; 8th December, 2003.

2004 P Cr. L J 1661

[Federal Shariat Court]

Before Zafar Pasha Chaudhary and S.A. Rabbani, JJ

RASHEED AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 133/L of 2003, decided on 3rd June, 2004.

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

----Ss. 10(2) & 10(3)---Zina---Essential ingredient---Penetration is necessary to constitute an offence of Zina, but it is not essential that the penetration must be complete---Mere penetration is sufficient to make out a case of Zina.

1993 PCr.LJ 1852(FSC); 1986 SCMR 148; PLD 1984 FSC 121; 1985 PCr.LJ 110 and 1993 SCMR 1660 ref.

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

----Ss. 10(3) & 11---Appreciation of evidence---Eye-witnesses were independent witnesses of the occurrence who had no grudge or malice against the accused to falsely implicate him---Matter had been promptly reported to the police levelling allegations against the accused with precision and exactitude---Ocular account was fully supported by medical evidence and also supplemented by the Chemical Examiner's report--­Victim, a deaf and dumb girl of eight years, who could not speak, had pointed out the accused as culprit to the Investigating Officer identifying him as the one who had committed Zina with her---Victim girl had also explained the incident through signals to the said Police Officer Which Were interpreted by her father---Conviction of accused was upheld under S.10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, in circumstances---Accused, however, was a first offender and father of a daughter and had been leading throughout a moral life---Under Islamic Jurisprudence, to afford an opportunity for reformation was considered as commendable-- -Sentence of 25 years' R.I. awarded to accused thereunder was reduced to 15 years' R.I accordingly---Accused was acquitted of the charge under S.11 of the said Ordinance in the absence of any tangible evidence either of abduction or kidnapping on the record.

1993 PCr.LJ 1852 (FSC); 1986 SCMR 148; PLD 1984 FSC 121; 1985 PCr.LJ 1.10 ; PLD 1983 FSC 33; PLD 1992 FSC 87; 1994 SCMR 2102 and 1993 SCMR 1660 ref.

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

----Ss. 10(3) & 11---Appreciation of evidence---Benefit of doubt--­Presumption, however, strong it may be cannot be legally accepted as evidence-.--In spite of heinousness of the offence, absence of any evidence in this behalf or any doubt in this regard, the benefit should- go to the accused and not to the prosecution.

Malik Rab Nawaz Noon for Appellant.

Saliheen Mughal for the Complainant.

M Sharif Janjua for the State.

Date of hearing: 7th May 2004.

2004 P Cr. L J 1674

[Federal Shariat Court]

Before Zafar Pasha Chaudhary, J

FAYYAZ --- Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No.224/I of 2002, decided on 26th September, 2003.

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

----S. 10(2)(3)---Appreciation of evidence--Accused was a young man of 26 years of age whereas victim was a Widow aged more than 50 years having grown up children---Occurrence allegedly took place m the garden where normally commission of Zina-bil-Jabr could not have been committed unless both the partners were willing---From the record it was not spelt out that any resistance was made by the alleged victim as no mark of violence was on any part of her body and her clothes were intact---Use of force as alleged by victim was that she was held by the arm and accused tried to throttle her neck and thereafter she was dragged to the place of occurrence---Said part of statement of victim not at all was supported by medical evidence, no scratches were observed on the back, no mark or abrasion or signs of throttling or pressing the throat of victim, were found by the Doctor---Occurrence allegedly took place in the broad-daylight when a number of people were all around---Conviction of accused under S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was not justified and offence, in circumstances, was covered undo: S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1971 and maximum sentence provided under said section was five years R.I.---Accused had already undergone more than three years R.I. and accused since occurrence which took place in 1995 had been undergoing, agony and ordeals---Sentence of imprisonment already undergone by accused, was sufficient to meet the ends of justice—­Conviction of accused under S.10(3) of Offence of Zina (Enforcement of Hudood Ordinance, 1979 was set aside and same was recorded under S.10(2) of said Ordinance and accused was sentenced to the period. of imprisonment already undergone by him.

Saliheen Mughal for Appellant.

M. Sharif Janjua for the State.

Date of hearing: 26th September, 2003.

2004 P Cr. L J 1680

[Federal Shariat Court]

Before Fazal Ilahi Khan, C.J.

GHULAM MUSTAFA and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.76/Q, 81/Q and 238/I of 2001, decided on 27th September, 2002.

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

----S. 12---Penal Code (XLV of 1860), S.337-J/34---Appreciation of evidence---Trial Court had not framed a proper charge as no reference had been made to the ingredients which constituted offence under S.12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979--­Similarly instead of referring to commission of offence of sodomy, Trial Court had used the word "Zina"---Trial Court had failed to examine accused under. S.342, Cr.P.C in the tight of prosecution evidence by not putting incriminating evidence to accused---Accepting appeal judgment of Trial Court was set aside and case was remanded to be decided afresh, in accordance with law.

Kamran Murtaza, Malik Rab Nawaz Noon and Saliheen Mughal for Appellants.

Muhammad Sharif Janjua for the State.

Date of hearing: 27th September, 2002.

2004 P Cr. L J 1694

[Federal Shariat Court]

Before Ali Muhammad Baloch, J

MUHAMMAD RAMZAN---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No. 174/I of 2001, decided on 9th May, 2002.

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

----Ss. 10(3) & 18---Appreciation of evidence---Sentence, reduction in--­Prosecution witnesses had corroborated statement of victim girl---Defence plea put forward by accused, who neither had examined himself as his own witness under S.340(2), Cr. P.C. nor had produced any witness in his defence, was afterthought and it did not get any support from record of the case nor same appeared believable---Accused, was rightly convicted and sentenced---In order to give accused a chance to improve and live the life of a useful citizen in future, his sentence was slightly reduced---Sentence of imprisonment to the extent of 3 years R.I. was awarded to meet the ends of justice.

Muhammad Saliheen Mughal for Appellant.

Nadeem Mukhtar Chaudhary for the State.

Date of hearing: 9th May, 2002.

2004 P Cr. L J 1734

[Federal Shariat Court]

Before S.A. Rabbani, J

ALLAH BUX---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.46/K of 2002, decided on 20th June, 2003.

Penal Code (XLV of 1860)---

----S. 394---Appreciation of evidence---Prosecution story suffered from many infirmities and case against accused was doubtful---Prosecution had stated that the accused were armed and they had gone to commit robbery of cattle of complainant, but they did not do so---No reason was shown as to why accused went away without taking away cattle of complainant if they had gone to that place for that purpose---Trial Court had acquitted all other co-accused, but had convicted accused merely on basis that he was found present at the house of complainant, whereas accused had fully explained his presence at the house of complainant which had also been admitted by complainant himself---Beyond that no other evidence was available for proof of alleged commission of offence by accused---Case against accused being doubtful, he was entitled to benefit of doubt--­Conviction and sentence awarded to accused by Trial -Court were set aside and he was released in the case.

Maula Bakhsh Khoso for Appellant.

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

Date of hearing: 20th June, 2003.

2004 P Cr. L J 1740

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan, J

JAFFAR ALI KHAN DURANI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.51/K of 2002, decided on 19th June, 2003.

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

----S. 10(3)---Appreciation of evidence---Victim lady reported the matter to police on next day of occurrence and her deposition did not provide sufficient nexus of accused with the commission of offence---Statement of victim before the Trial Court was at variance with, her statement, which was made basis of F.I.R.---Alleged eye-witness of occurrence had stated that he could not say if accused present in the Court was the same as due to .darkness of night he could not see him properly---Said witness had candidly conceded that he could not identify the accused at the place of Wardat as he was facing his back when accused was running from the scene of offence---Both prosecution witnesses, stated that children of complainant/victim were present at the time of occurrence, but none of them had been produced to support version made by complainant---Case of prosecution, in circumstances, was not free from doubt---Accused was entitled to get benefit of such doubt---Conviction and sentence recorded against accused by Trial Court, were set aside and he was acquitted of charge.

Muhammad Iqbal Aqeel for Appellant.

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

Date of hearing; 16th May, 2003.

2004 P Cr. L J 1747

[Federal Shariat Court]

Before Zafar Pasha Chaudhary, J

GHULAM SARWAR---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No.71/I of 2004, decided on 31st May, 2004.

Penal Code (XLV of 1860)---

----S. 394---Appreciation of evidence---Reduction in sentence---Case against accused remained pending in various Courts for about 22 years--­Accused was taken into custody and then was released on bail, but again was taken into custody so on and so forth during said long period of 22 years---Taking into consideration extraordinary exceptional circumstances, it was considered that term of imprisonment already suffered by accused should be treated sufficient in the interest of justice---To obtain expeditious justice was a right of every citizen but, unfortunately accused constantly remained either on bail or confined in jail during long period of 22 years--:Even during bail, his liberty was curtailed and he remained under bond to present himself whenever he was required by the Court or other competent officer---Sentence awarded to accused was reduced to the term of imprisonment already undergone by him.

Miss Aisha Tasneem Khan for Appellant.

M. Shoaib Abbasi for the State.

Date of hearing: 31st May, 2004.

2004 P Cr. L J 1756

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, C.J.

TAHIR MEHMOOD and 2 others---Appellants

Versus

THE STATE---Respondent

Jail Criminal Appeal No.74/I of 2004, decided on 14th May, 2004.

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

----Ss. 20 & 24---Penal Code (XLV of 1860), S.412---Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 25---Criminal Procedure Code (V of 1898), Ss.28(c) & 29(1)(2)---Appeal before Federal Shariat Court--­Competency---Court, though by dint of Proviso one to S. 24 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, while holding trial under the Ordinance, was competent to try and punish offender under any other law, for different offence, if from evidence it so appeared and judgment so passed could be assailed before Federal Shariat Court, but in the present case since charge along with the provisions of the Ordinance was also framed under S.7 of Anti-­Terrorism Act, 1997 and the judgment had been pronounced-by the Trial Court as Judge, Anti-Terrorism Court., appeal against impugned judgment, would not lie to Federal Shariat Court in view of S.25 of Anti-Terrorism Act, 1997, whereby a final judgment of Anti-Terrorism Court could be assailed in appeal only before High Court---Appeal being not maintainable before Federal Shariat Court, was returned to appellants for availing remedy at the proper forum, if they so desired.

(b) Jurisdiction---

---- If a Court not possessed of jurisdiction to try a case, would wrongly assume jurisdiction and exercised power not vested in it, appeal from its decision would lie in the same manner as an appeal would lie from a decision made with jurisdiction---Party aggrieved of decision passed without jurisdiction, could raise the controversy before Appellate forum in the same hierarchy and if Appellate forum would come to the conclusion that decision so made was without jurisdiction, it could set aside the same on the ground of illegal assumption of jurisdiction, leaving the option with concerned parties to have the matter decided by original forum of competent jurisdiction.---On the basis of wrong exercise of jurisdiction by a Trial Court, its judgment could not be assailed before any Appellate forum other than the one prescribed under the law against the judgment of the Court of first instance.

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

Date of hearing: 14th May, 2004.

2004 P Cr. L J 1769

[Federal Shariat Court]

Before S.A. Rabbani, J

NASEER AHMAD alias NASRO---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No.41/I of 2004, decided on 22nd April, 2004.

Penal Code (XLV of 1860)---

----S. 377---Appreciation of evidence-- -Trial Court had convicted accused on the basis of statement of alleged victim coupled with medical evidence---Alleged victim was not a truthful witness as he had himself admitted that he falsely involved the accused on direction of his father--­Other prosecution witness was also not reliable witness as he had given specific date when alleged victim was allegedly abducted, but that date was different from the one given by victim himself---Medical evidence, also did not connect accused with commission of offence of sodomy because Medical Officer did not unequivocally said that sodomy was committed with alleged victim---Said Medical Officer had given opinion that something had been introduced into the anus of alleged victim--­Chemical Examiner's report was also not believable and Trial Court did not summon Chemical Examiner to explain as to how he found semen on the swabs after four days of alleged incident as it was not possible. to find out semen stains or the swabs after four days of commission of sodomy---Motive for false implication put forward by accused before the Trial Court, had not been rebutted by person concerned who was father of alleged victim who neither was cited as a witness for prosecution nor was examined by Trial Court---No credible evidence being on record to connect accused with the commission of offence, accused was acquitted.

Imtiaz Ahmad and others v. The State 1996 MLD 457; Muhammad Akram and others v. The State 1995 MLD 950 and Muhammad Anwar v. The State 1996 PCr.LJ 1195 ref.

M. Yousaf Zia for Appellant.

Fazal-ur-Rehman Rana for the State.

Date of hearing: 22nd April, 2004.

2004 P Cr. L J 1779

[Federal Shariat Court]

Before Khan Riaz-ud-Din Ahmad, J

MIRAJ-UD-DIN---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No.121/I of 2002, decided on 25th November, 2002.

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

----Arts. 3 & 4---Appreciation of evidence---Sentence, reduction in--­Deposition by complainant police officer being coherent and consistent, was reliable---Statements of witness had carried sanctity of having been made by an independent Witness, who had no animus at all against accused so as to falsely implicate him in the crime---Testimony furnished by witness stood duly corroborated by evidence rendered by other police official who had duly testified the recovery memo. of Charas---Case of prosecution was further corroborated by positive report of Chemical Examiner with regard to Charas---Plea of substitution for a real culprit who was let off by police, was of no help to the accused Who being a stranger, was not even known to the police party---Plea of accused was frivolous---Evidence produced by prosecution inspired confidence and was sufficient to base conviction of accused under Art.3 of Prohibition (Enforcement of Hadd) Order, 1979 as accused was found transporting contraband. while travelling in the coach but conviction and sentence under Art.4 of the Order, being redundant in view of observations of Supreme Court in case reported as PLD 1994 S.C. 255, were set aside---Accused who was stated to be first offender of the crime and being sole bread-earner of poor family, deserved leniency in sentence---Sentence of five years' R.I. was reduced to three years' R .I.

Muhammad Saliheen Mughal for Appellant.

Malik Ahmad Jan, Deputy Advocate-General, N.-W. F. P. for the State.

Date of hearing: 25th November, 2002.

2004 P Cr. L J 1794

[Federal Shariat Court]

Before Ch. Ejaz Yousaf and Ali Muhammad Baloch, JJ

ZULFIQAR alias SHERA and another---Appellants

Versus

THE STATE---Respondent

Jail Criminal Appeal No.94/I of 2002, decided on 10th December, 2002.

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

----S. 10(3)---Appreciation of evidence---Reduction in sentence--Accused was convicted and sentenced for actual commission of offence of Zina whereas co-accused was sentenced for abetment---Evidence of victim was confirmed and supported by prosecution witness who was mother of victim---Said witness had given ocular evidence and accused who were neighbours of victim and witness were previously known to them and they were identified in the light which was lit at the time of incident---Appellants did not. press their appeal on merits, but had prayed for reduction in sentence of imprisonment awarded to main accused who was awarded twenty years' R.I.---Co-accused was about 15 years of age while accused was about 17 years old at the time of incident---Both accused being of immature age at the relevant time possibility that they were not fully aware of the consequences of their acts, could not be ruled out---Sentence of twenty years R.I. awarded to accused, was harsh and excessive---Sentence of twenty years awarded to accused was reduced to 10 years' R.I.

M. Saliheen Mughal for Appellants.

Fazal-ur-Rehman Rana for the State.

Date of hearing: 10th December, 2002.

2004 P Cr. L J 1804

[Federal Shariat Court]

Before Sardar Muhammad Dogar, J

MUHAMMAD HUSSAIN ----Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No.247/I of 2001, decided on 7th June, 2002.

Penal Code (XLV of 1860)---

----S. 377---Appreciation of evidence---Reduction in sentence---Young boy aged 13 years had been subjected to sodomy by two persons, while third had remained standing there---No serious enmity existed between accused and prosecution family---Statement made by victim which inspired confidence, was also corroborated by positive report received from the Chemical Examiner---Nothing was on record warranting interference in the judgment of conviction recorded by Trial Court--­Conviction of accused was maintained, but accused being below the age of 15 years, his sentence of seven years' R.I. was reduced to three years' R.I. and amount of fine was also reduced accordingly in view of financial condition of parents of accused.

Saliheen Mughal for Appellant.

Aftab Ahmad Khan for the State.

Date of hearing: 7th June, 2002.

2004 P Cr. LJ 1817

[Federal Shariat Court]

Before S.A. Manan, J

MUDASSIR HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 141/I of 2003, decided on 22nd July, 2004.

Penal Code (XLV of 1860)----

----S. 377---Appreciation of evidence---Prompt F.I.R. was recorded on the day of occurrence---Statement of the victim, a minor boy aged 11/12 years, was reliable and trustworthy---Doctor's statement and the positive report of the Chemical Examiner about the anal swabs being stained with semen, had corroborated the statement of the victim and any contradiction therein would not make the whole prosecution case unbelievable---Defence plea taken by accused was not proved---No enmity was shown between the parties---Conviction of accused was maintained in circumstances, but in view of his young age and previous non-conviction his sentence of ten years' R.I. was reduced to eight years' R.I.

Mst. Nasreen v. Fayyaz Khan and another PLD 1991 SC 412; Rana Shahbaz Ahmad and 2 others v. The State 2002 SCMR 303 and Shahzad alias Shaddu and others v. The State 2002 SCMR 1009 ref.

Muhammad Munir Peracha for Appellant.

Nemo for the State.

Date of hearing: 1st April, 2004.

2004 P Cr. L J 1827

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, Actg. C.J. and Dr. Fida Muhammad Khan, J

QAISER IQBAL and 3 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 131/L of 2002, decided on 5th March, 2003.

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

---S. 11---Appreciation of evidence ---F.I.R. showed that four accused persons were alleged to have dragged the abductee and confined her in a house; but the abductee in her statement recorded under S. 164, Cr.P.C. had not nominated three accused out of four. and also there was no indication that said three accused persons were present at the time of occurrence and participated in the crime---Stand taken by the abductee in her statement had not only materially contradicted prosecution version qua the participation of said three accused persons, but it belied the stand taken by prosecution witnesses---Investigating Officer had also confirmed statement of the abductee and he declared said three accused persons innocent---Complainant and his companion prosecution witness had no first hand knowledge of the incident, but had relied on statement of other prosecution witness---Three- accused in circumstances could not be convicted and sentenced on contradictory statements of the abductee and other witness---Conviction and sentence recorded against said three accused persons were set aside and they were acquitted of the charge.

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

----S. 11---Penal Code (XLV of 1860), S. 365---Appreciation of evidence---Out of four accused persons nominated in F.I. R., alleged abductee in her statement recorded under S. 164, Cr.P.C. had not nominated the three accused persons---Abductee not only had charged fourth accused for commission of offence, but at the trial had also given a coherent and rational account thereof---Statement of abductee was not only consistent with prosecution version, but was in line and harmonious with her earlier statements recorded under S. 161 and under S. 164, Cr.P.C.---Testimony of the abductee found support from other evidence as well and appeared to be trustworthy qua the fourth accused---Said fourth accused though was nominated by the abductee, but no allegation of commission of Zina or of attempt to commission of Zina was brought against him---Case against said accused at the most was covered by S.365, P.P.C. and he could not be convicted and sentenced under S.11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979--­Conviction recorded against said fourth accused was maintained, but same was altered to that of under S. 365, P.P.C. and was sentenced accordingly.

M. Saleheen Mughal for Appellants.

Ijaz Anwar for the Complainant.

Muhammad Sharif Janjua for the State.

Date of hearing: 5th March, 2003.

2004 P Cr. L J 51

[Karachi]

Before Muhammad Ashraf Leghari, J

Malik MUHAMMAD NOOR KHAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent, Criminal Appeal No. 168 of 1999, decided on 3rd June, 2003.

Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑S. 320‑-‑Appreciation of evidence‑‑‑Incident allegedly was witnessed by two police officials and had taken place in a thickly‑populated area, but no private person was examined‑‑‑One of the said two prosecution witnesses had not stated in his deposition that accused was driving the vehicle rashly and negligently‑‑‑Other witness though had stated that accused was driving rashly and negligently, but his evidence was not corroborated by any private witness or any circumstance‑‑‑Accused examined himself on oath and denied the prosecution case‑‑‑Medical evidence could not be treated to be a corroborative piece of evidence to the ocular evidence as it only showed that man died due to injuries‑‑­Private witness did not support prosecution case and was declared hostile‑‑‑Evidence of complainant was of no consequence as he was not an eye‑witness‑‑‑Alleged witnesses who were police officials did not take accused .into custody in the ,first instance when they saw the incident, but let him escaped from the scene of offence‑‑‑Prosecution having failed to prove its case against accused beyond reasonable doubt, sentence awarded to accused by Trial Court was set aside;' in circumstances.

Miss Masooda Siraj and M. Riaz Abbasi for Appellant.

Arshad Lodhi, A.A.‑G. for the State.

Date of hearing: 3rd June, 2003.

2004 P Cr. L J 90

[Karachi]

Before Muhammad Afzal Soomro, J

PUNHAL and 2 others‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.337 of 2003, decided on 26th June, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.460‑‑‑Bail, grant of‑‑‑Accused remained in custody as under trial prisoners for three years, seven months and eight days, but not a single witness had been examined by the Trial Court‑‑‑Case, after framing charges had not proceeded‑‑‑Accused was not responsible for causing delay in the trial of case‑‑‑Such being clear case of hardship and accused having been able to make out a case for bail, they were granted bail.

Abdul Hameed v. State 2003 MLD 19 and Behram v. State 2003 PCr.LJ 73 ref.

Muhammad Ayaz Soomro for Applicants.

Mushtaq Ahmed Kourejo for the State.

2004 P Cr. L J 99

[Karachi]

Before Wahid Bux Brohi, J

KATPAR and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.66 of 2003, decided on 31st March, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑----S. 497(2)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑­Further inquiry‑‑‑Five co‑accused had already been released on bail by the Trial Court ‑‑‑F.I.R. had shown that prosecution witnesses were attracted to the scene on hearing cries and fire‑arm reports‑‑‑Ocular evidence about causing of the fatal injuries to deceased was that of complainant alone which was not supported by medical evidence as far the role of accused was concerned‑‑‑Medical Officer had admitted in his evidence that no gunshot injury was found on the body of deceased‑­'Where as many as, nine assailants had been involved and medical evidence did not subscribe to the solitary ocular version, case of accused required further inquiry‑‑‑No objection was raised on behalf of the State by grant bail to accused‑‑‑Accused was admitted to bail, in circumstances.

Behram v. The State 2002 PCr. LJ 73 and 2003 PCr. LJ 73 ref.

Khalid Iqbal Memon for Applicants.

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

Date of hearing: 31st March, 2003.

2004 P Cr. L J 102

[Karachi]

Before Muhammad Ashraf Leghari, J

JAVED IQBAL‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Special Criminal Bail Application No. 10 of 2003, decided on 30th May, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Customs Act (IV of 1969), S. 156(1)(8)(9)(14) & (86)‑‑‑Bail, grant of‑‑‑Documents declared the consignment in question to be Plastic Toys Rings, but in fact, it was the explosive material which had exploded and took eighteen human lives‑‑‑Such act amounted to smuggling of explosive material which was an offence punishable under cl.(8) of S.156 of Customs Act, 1969 which had provided punishment of 14 years‑‑­Material on record had shown that accused was the only person who imported said consignment to Pakistan‑‑‑Such being one of the white collar crimes which were usually committed in planned manner by well ­organized persons and they work by underhand mechanism, the standard of evidence normally available in the ordinary criminal cases could not be expected‑‑‑Accused was prima facie a person concerned with the offence, he did not deserve concession of bail.

Saeed Ahmed v. The State 1996 SCMR 1132 and Ayaz Ahmed v. The State 2003 PCr.LJ 1340 ref.

Ilyas Khan for Applicant.

Mahmood A. Rizvi, Standing Counsel for the Complainant.

Date of hearing: 30th May, 2003.

2004 P Cr. L J 114

[Karachi]

Before Ghulam Nabi Soomro, J

BAHADUR KHAN‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.47 of 2001, decided on 18th August, 2003.

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

‑‑‑‑S. 497(1), first proviso‑‑‑Penal Code (XLV of 1860), Ss.324/148/149‑‑‑Grant of bail on ground of sickness‑‑‑Accused seeking bail on ground of sickness had 'produced on record Medical Report of Chief Medical Officer, Central Prison, showing seriousness of his sickness‑‑‑Besides said Medical Report there were other documents relating to sickness, of accused which pertained to medical history, check­up of accused and prescriptions given by well‑known hospital‑‑‑Accused who was in a seriously injured condition, was in custody for last about nine months‑‑‑Accused needed specialized treatment which was not available inside the jail‑‑‑Accused was entitled to bail, in circumstances.

1986 SCMR 847; 1982 SCMR 975; 1997 MLD 2484; 1999 PCr.LJ 1237 and 1995 PCr.LJ 1613 ref.

Shahadat Awan for Applicant.

M.A. Kazi for the Complainant.

Suleman Habibullah, Addl. A.‑G. for the State.

Date of hearing: 18th August, 2003.

2004 P Cr. L J 126

[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‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.4‑‑‑Bail, grant of‑‑‑Accused who was charged with having 250 grams of heroin, was behind the bars for the, last five years‑‑‑Accused, even if was found guilty and convicted, maximum punishment would be seven years‑‑‑Case had not proceeded and evidence of witnesses had also not been recorded‑‑‑Bail was granted to accused, in circumstances.

Muhammad Ayaz Soomro for Applicant.

Shevak Ram for the State.

Date of hearing: 29th May, 2003.

2004 P Cr. L J 157

[Karachi]

Before Wahid Bux Brohi, J

BADLO and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.224 of 2003, decided on 6th May, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(2)(4)‑‑‑Penal Code.(XLV of 1860), S.396‑‑Bail, grant of‑‑‑Identification .test was held after 10 days of the arrest of accused and no plausible reason was offered to explain such delay‑‑‑Such test was a joint identification test and witnesses did not specifically state as to what role was played by each accused‑‑‑No fire­arm had been recovered and only Lathis had been secured from the accused‑‑‑Further statement of complainant had shown that he had named the accused on the basis of hearsay evidence received by him, in that view of the matter the value of identification test through complainant, had rightly been questioned as it had been conducted in respect of nominated accused person‑‑‑Applicability of S.396, P.P.C. was also open to question as it was not made out that five persons conjointly had committed the offence of dacoity and further statement of complainant was silent in that regard‑‑‑No objection was extended on behalf of the State to the grant of bail to accused‑‑‑Accused were admitted to bail, in circumstances.

Imamdin v. Pathan 2001 PCr.LJ 1892, Shafique Ahmed v. The State 2002 PCr.LJ 518 and Mehmood Ahmed v. The State 1995 SCMR 127 ref.

Khalid Iqbal Memon for Applicants.

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

Date of hearing: 6th May, 2003.

2004 P Cr. L J 159

[Karachi]

Before Sarmad Jalal Osmany, J

Syed RAFIQ KHAN‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Revision Application No. 107 of 2003, decided on 31st October, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 516‑A‑‑‑Penal Code (XLV of 1860), S.323‑‑‑Custody of vehicle, application for‑‑‑Owner of the vehicle allegedly used in the crime of robbery and murder‑‑‑Liability of the owner of vehicle used in the crime‑‑‑Extent‑‑‑Owner of the vehicle at the most could be burdened with payment of Diyat amount, in case the accused was unable to do so as the owner of vehicle would be "Aqila" of the accused‑‑‑Crime having been committed in the vehicle of applicant/owner of the vehicle and he being willing to submit surety for Diyat, amount, it would be in the interest of justice to grant his application for custody of vehicle upon submission of such surety to the satisfaction of Nazir of the Court.

Raja Muhammad Basharat for Applicant.

Mrs. Rehana Akhtar for the State.

Date of hearing: 17th October, 2003.

2004 P Cr. L J 181

[Karachi]

Before Wahid Bux Brohi and Muhammad Moosa K. Leghari, JJ

QASSIM and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Anti‑Terrorism Jail Appeal No.81 of 1999, decided on 29th January, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(a)/392/397/398‑‑‑Appreciation of evidence‑‑‑Accused were not put to identification test despite they were strangers to the prosecution witnesses ‑‑‑F.I.R. was registered on the basis of information conveyed by prosecution witness on telephone to police and none of two prosecution witnesses who allegedly witnessed the incident came forward to lodge F.I.R.‑‑‑No credible evidence was available to connect accused with commission of crime in absence of identification test‑‑‑Evidence of recovery of crime weapon suffered from infirmities‑‑‑Crime empties recovered from place of Vardat and crime weapon recovered from accused were sent to Fire‑arm Expert after about two and half months of their recovery and both articles were dispatched to Fire‑arm Expert simultaneously‑‑‑Such facts had rendered ballistic report of little consequence to support case of the prosecution‑Case of prosecution was that two different weapons were used in commission of crime, while only one T.T. Pistol ‑was recovered and report of Fire‑arm Expert had, shown that two shots were fired from said pistol‑‑‑Conduct of prosecution witnesses was unnatural‑‑‑One of prosecution witnesses who himself was victim of robbery had not conveyed information of offence to the police, but went to his house quietly‑‑‑In view of delay in lodging F.I.R., absence of identification of accused; lack of establishment of recovery of crime weapon coupled with delay and apparent conflict in Ballistic Report and prosecution version, case of prosecution was marred by serious infirmity‑‑‑Prosecution having failed to bring home the guilt of accused, judgment of conviction and sentence passed by Trial Court against accused, being not sustainable; was set aside and accused ordered to be released.

State through Advocate‑General, Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1 ref.

Syed Mahmood Alam Razvi for Appellants.

Amanullah Khan and Habib. Ahmed, A.A.‑G. for the State.

Date of hearing: 23rd January, 2003.

2004 P Cr. L J 212

[Karachi]

Before Muhammad Roshan Essani, J

Mst. SONI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-366 of 2003, decided on 24th July, 2003.

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

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10, 11 & 14--Bail---Accused, a lady, had sought bail on the sole ground of pregnancy---Report of the Civil Surgeon, Civil Hospital, revealed that the accused was in advanced stage of pregnancy---Accused was continuously in custody for the last about four months---Bail was allowed to accused in circumstances.

Mst. Shamim AKhtar v. The State 1991 PCr.LJ 1079 and Mst. Zarina v. The State 1991 MLD 518 ref.

Manzoor Ahmed Junejo for Applicant

Haji Abdullah for the Complainant.

Moula Bux Khoso on behalf of A.-G. for the State.

2004 P Cr. L J 240

[Karachi]

Before Muhammad Roshan Essani, J

ABDUL RAZZAQUE and others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.382 and 407 of 2003, decided on 24th July, 2003.

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

----S. 497---Penal Code (XLV of 1860), Ss.354/452/464/467/468/469/ 466/471/474/420/406/147/506(2)/504---Bail---Sections 467, 468, 469, 466, 471 & 504, P.P.C. were non-cognizable while Ss.354, 420 & 147, P.P.C. were bailable ---Record did not show any property of the complainant having been entrusted to the accused and misappropriated by him, S.406, P.P.C., thus, was not attracted in the case---Section 506(2), P.P.C. was not hit by the prohibitory clause of S.497(1), Cr.P.C.--­Offence having not been committed inside a dwelling place, S.452, P.P.C. had been misapplied ---Factum of Nikah had been denied by the accused---No plausible explanation had been furnished by the complainant for inordinate delay of 19 hours in lodging the F.I.R.---Case against accused necessitated further inquiry as contemplated under S.497(2), Cr.P.C. in circumstances--Bail was allowed to accused accordingly.

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

Mumtaz Ali Siddiqui for Applicant (in Criminal Bail Application No.382 of 2003).

Imdad Ali Awan for Applicants (in Criminal Bail Application No.407 of 2003).

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

Nizamuddin Baloch for the Complainant.

2004 P Cr. L J 259

[Karachi]

Before Muhammad Roshan Essani, J

AHMAD KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 166 of 2003, decided on 23rd July, 2003.

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

----S. 498---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16---Bail, confirmation of---Principal accused was employee of co-accused who was a doctor and there was no allegation in the F.I.R. that co-accused/doctor had kidnapped the prosecutrix nor there was any allegation against him that he had any illicit intimacy with prosecutrix or had committed Zina with her---Only allegation against said co-accused was that the principal accused was serving in the private hospital of co ­accused and that co-accused had assured the complainant to help him for restoration of prosecutrix, but he showed his inability to do so---One could not be dubbed as privy to commission of offence for assurance of help, in circumstances---Order confirming bail of accused passed by Court below not suffering from any illegality or infirmity and being in consonance with law and facts of the case, was upheld and notice issued to co-accused was recalled.

Abdul Fattah Malik for Applicant.

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

2004 P Cr. L J 273

[Karachi]

Before Muhammad Roshan Essani, J

Syed TASSADAQ HUSSAIN SHAH---Applicant

Versus

SESSIONS JUDGE, SUKKUR and 2 others---Respondents

Criminal Miscellaneous Application No.84 of 2003, decided on July, 2003.

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

---------Ss. 514 & 561-A Forfeiture of bond Accused for whom applicant stood surety failed to appear before the Trial Court despite several adjournments were granted to him to produce ,the accused---Even on the last date of he4ring neither the accused nor the surety appeared before the Court---Trial Court and Appellate Court concurrently imposed penalty of forfeiture of surety bond of surety for his failure to produce accused in Court---Applicant/surety requested that penalty imposed upon him be reduced which was refused---No illegality or impropriety had been pointed out in concurrent judgment of the Courts--­ No mitigating circumstances had been indicated for the reduction of surety amount---Application of surety, was dismissed, in circumstances.

Muhammad Safeer v. Fakeer Khan and 2 others 2000 SCMR 312 ref.

Shaikh Amanullah-for Applicant.

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

2004 P Cr. L J 278

[Karachi]

Before Muhammad Roshan Essani, J

Mst. SALMA---Appellant

Versus

ZAMIR AHMAD HUSSAIN and another---Respondents

Criminal Acquittal Appeal No. 15 of 2003, decided on 24th July, 2003.

Criminal Procedure Code (V of 1898)---

----S. 417---Muslim Family Laws Ordinance (VIII of 1961), S.6---Appeal against acquittal---Accused , who was convicted and sentenced by Magistrate on direct complaint, filed appeal before Sessions Judge which was allowed solely on ground that the complainant was not competent to file the complaint---Appeal by complainant against judgment of Appellate Court/Sessions Judge was admitted to regular hearing by High Court--­Accused as well as Additional Advocate-General conceded to the request of complainant that case be remanded to Sessions Judge for adjudication on merits---By consent of parties judgment passed by Sessions Judge accepting appeal of accused was set aside and appeal was remanded to Sessions Judge for deciding the same according to law on merits.

Abdul Qadir Shaikh for Appellant.

Ghulam Sarwar Korai for Respondents.

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

2004 P Cr. L J 285

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

ABDUL QADIR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.506 of 2003, decided on 5th November, 2003.

(a) Criminal trial----

---- Every accused would be presumed to be innocent unless and until he is found guilty of the charge.

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

----S. 498---Penal Code (XLV of 1860); Ss. 420/468/471/477-A---Pre­arrest bail---Prosecution story was clouded under doubt---F.I.R. was not registered by the Anti-Corruption Department, but a regular F.I.R. was registered under the directions of D.P.O.---State Counsel had conceded to the grant of pre-arrest bail to the accused---Accused was to be humiliated, disgraced and subjected to torture by the police if he was arrested in the case---Pre-arrest bail was granted to accused in circumstances.

Muhammad Saleem Jessar for Applicant.

Muhammad Ismail Bhutto for the State.

2004 P Cr. L J 290

[Karachi]

Before Mushir Alam and Syed Zawwar Hussain Jaffery, JJ

RIAZ HUSSAIN KALHORO---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.D-81 of 2002, decided on 9th October, 2003.

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

----S. 13-D---Appreciation of evidence ---K.K. rifle and seven live bullets allegedly recovered from the accused were not sealed by the police on the spot---Police Officer being aware of the place to be searched well in time did not join respectable persons from the locality in recovery proceedings, nor did he furnish any explanation for the omission and thus, had violated the mandatory provisions of 5.103, Cr.P.C.---Accused had already been acquitted in the main case---Weapon of offence after recovery was not dispatched to the Ballistic Expert---Non-production of the entry in the Roznamcha by the prosecution in Court to prove the movement of police from the police station to the place of recovery of the weapon had cut at the root of the prosecution-case making the same doubtful and unbelievable---Conviction under S.13-D of the Arms Ordinance could not be maintained unless the weapon allegedly recovered from the accused was sealed at the spot and the opinion of the Forensic/ Ballistic Expert was produced on record to prove that the- same was functional and was a kalashnikov---Accused was acquitted in circumstances.

Manjhi Khan v. State PLD 1996 Kar.. 345; Fareed Ahmed Langra v. The State 1998 PCr.LJ 1368; Abdul Sattar v. State PLO 2001 Kar. 181; Loung v.-State 1999 PCr.LJ 595; Abdul Sattar v. State 2002 PCr.LJ 51; Ashiq Ali v. State 2002 PCr.LJ 450 and Muhammad Azam v. State PLD 1996 SC 67 ref.

Muhammad Saleem Jessar for Appellant.

Mushtaq Ahmed Kourejo for the State

Date of hearing: 26th September, 2003.

2004 P Cr. L J 304

[Karachi]

Before Khilji Arif Hussain, J

AHMED ---Applicant

versus

THE STATE---Respondent

Criminal Revision Application' No.14 of 2003; decided on 24th June, 2003.

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

----Ss. 200, 203 & 436---Direct complaint---Dismissal of direct complaint---Accused, in case of such complaint, at preliminary: stage of inquiry had no locus standi to participate in the proceedings---If proceedings had been terminated by way of dismissal of direct complaint, presence of accused was not necessary---Accused was not necessary party to be joined as respondent in case where process had not been issued to accused pursuant to direct complaint---Additional, Sessions Judge dismissed direct complaint without assigning any reason simply stating that complaint .vas an outcome of matrimonial dispute and also dispute over landed property and that allegations in the complaint had been introduced by complainant simply to aggravate the situation and did not appear true---Additional Sessions Judge had not given any reason for said finding---Non-speaking order of Additional Sessions Judge, thus, could not sustain.

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

----Ss. 156(3) & 200---Direct complaint---Magistrate after examining the complainant in. private complaint under S.200., Cr.P.C., must proceed in accordance with provisions of Chap. XVI, Cr.P.C. or after receiving private complaint if same disclosed some cognizable offence, could send it to Police for investigation under S.156(3), Cr.P.C.---After witness had been examined by the Magistrate, he could not refer the matter to Police under S.156(3), Cr.P.C.

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

----Ss. 190, 200, 203 & 2,04--m-Private complaint---Cognizance of offence by Magistrate---Intention of Legislature under Ss.190 & 200, Cr.P.C. was that while providing remedy to file private complaint also to save public against frivolous or vexatious complaints filed against them .in Criminal Courts---Courts must not lightly accept written complaints until it was satisfied that prima facie case was made out against the accused---Order passed for not taking cognizance under S.203; Cr..P.C. and/or taking cognizance under S.204, Cr.P:C. on 'the private complaint, should not only be a speaking order, but should also demonstrate that before, passing the order judicious mind jhad been applied.

Muhammad Khan, v. The State PI.D 1998 Kar. 116 ref.

Syed Madad Ali Shah for Applicant.

Masood Noorani, Addl. A.-G.

Date of hearing; 24th June, 2003.

2004 P .Cr. L J 326

[Karachi]

Before Muhammad Roshan Essani, J

ATTAULLAH---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.57 of 2002, decided on 15th September, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/504/114/147/148--­Juvenile Justice System Ordinance (XXII of 2000), Ss.2(b), 10 & 12--­Bail, grant of---Accused who claimed to be a "child" at the time of commission of offence having not attained the age of 18 years, was referred by Trial Court to Medical Superintendent for determination of his age---Medical Board consisting of Head of Departments of Surgery, Forensic .Medicine, Medicines, Radiology and Orthopaedic after examining the accused opined that at the time of examination age of accused was about 18 years which would mean that at the time of commission of offence, accused was about 16-1/2 years of age---"Child" under S.2(b) of Juvenile Justice System Ordinance, 2000 had been defined as a person who, at the time of commission of offence, had not attained age of 18 years and under S.12 of the said Ordinance---Sentence of death could not be awarded to a child and under S:10(7), proviso (a) of the Ordinance a child who, for commission of an offence, had been detained, would be released on bail, if being accused of an offence punishable with death had been detained for a continuous period exceeding one year and whose trial for such an offence had not been concluded---Accused being child having remained in jail for more than a year, was granted bail.

Muhammad Ahmed alias Anjum v. State PLD 1974 Kar. 459; Sirajuddin v. Sageeruddin alias Goga and another 1970 SCMR 30; Yousif v. The State 1975 PCr.LJ 936; Raja Amanullah and others v. The State 2002 MLD 1817; Mansoor Ahmed and others v. The State 2002 PCr.LJ 657 and Asghar Ali v. The State 2002 MLD 1566 ref.

Rasool Bux Unar for Applicant.

Hidayatullah Abbasi for the Complainant.

Ali Akbar Lakho on behalf of A.A.-G. for the State.

Date of hearing: 25th August, 2003.

2004 P Cr. L J 349

[Karachi]

Before Muhammad Sadiq Leghari, J

Mst. SHER BANG and another---Applicants

versus

THE STATE and others--Respondents

Criminal Miscellaneous No. 13 of 2003, decided on 24th April, 2003.

Criminal Procedure Code (V of 1898)---

----S.561-A.---Offence of Zina (Enforcement of Hudood),Ordinance (VII of 1979), S.11--Application for quashing of proceedings -Prosecution case was that alleged abductee was abducted from her father's house in presence of her nearest relatives, but had the relatives of complainant and alleged abductee fully supported the prosecution, even then accused could not be convicted for the reason that alleged abductee had denied the happening of incident and her abduction and she had pleaded to have herself left the house and had married the accused---Proceedings in cases for the offence of abduction were quashed when alleged victim lady had herself denied the happening of incident claiming to have herself performed Nikah willingly---Possibility of conviction of accused in the case could be safely, excluded, in circumstances and further proceedings in case would be nothing but an exercise in futility---Quashing of proceedings in case was justified.

Shabbir Ahmed and 6 others v. S.H.O., Police Station City, Burewala District Vehari and 2 others 2001 MLD 1468; Mst. Shahida Nadeem and another v. S.H.O., Police Station Saddar, Chichawatni, District Sahiwal and others 1999 MLD 3092 and Mst. Rukhsana v. S.H.O., Police Station Belo, Mirpur Mathelo and others 1999 PCr.LJ 638 ref.

Ch. A. Rasheed for Applicants.

Sh. F.M. Javaid for Respondents Nos.2 to 8.

Sardaruddin Qureshi State Counsel.

Complainant in person.

Date of hearing: 24th April, 2003.

2004 P Cr. L J 356

[Karachi]

Before Saiyed Saeed Ashhad, C. J. and S. Ali Aslam Jafri, J

DAWOOD and another---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU (SINDH) and others---Respondents

Constitutional Petition No. D-1993 of 2002, heard on 25th February, 2003.

Constitution of Pakistan (1973)---

---Art. 199---Constitutional petition---Maintainability---Petition required decision on disputed intricate and controverted questions of fact which could not be decided without recording evidence of the parties and/or witnesses---Recording of evidence was not undertaken by High Court while deciding Constitutional petition---Petitioners, in the present case, had not approached the High Court with clean hands as they had ­concealed the vital and material facts which, if disclosed, would disentitle them to the equitable and discretionary relief under Art. 199 of the Constitution.

Khawaja Sharful Islam for Petitioners.

H.K. Sohail Rana, Additional Prosecutor, NAB for Respondent No. 1.

Date of hearing: 25th February, 2003.

2004 P Cr. L J 365

[Karachi]

Before Rahmat Hussain Jafferi, J

ROSHAN ALI --- Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.S-27 of 2003, decided on 24th July, 2003.

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

----S. 13-D, 14 & 14-A---Criminal Procedure Code (V of 1898), Ss.6, 29 & 31---Jurisdiction of Sessions Judge to try case---Repeal of Suppression of Terrorist Activities Act, 1975, effect of---Appreciation of evidence--­Accused who was alleged to possess unlicensed klashnikov was convicted by Sessions Judge under S.13-D of West Pakistan Arms Ordinance, 1965 and was sentenced to suffer R.I. for five years---Accused who had filed appeal against judgment of Sessions Judge, had questioned jurisdiction of Sessions Judge to try the case contending that after repeal of Suppression of Terrorist Activities Act, 1975, Sessions Judge had no jurisdiction to try the case---Offence against accused being scheduled offence of Suppression of Terrorist Activities Act, 1975 and was to be tried by Special Judge under said Act but same had been repealed vide Ordinance XXXIX of 2001---Provisions of S.14-A of West Pakistan Arms Ordinance, 1965 had revealed that cases -under Ss. 13 & 14 of said Ordinance., were triable by Court of Magistrate except cases mentioned in provisions to S.13 of said Ordinance as cases mentioned in said two provisions had been specifically excluded from jurisdiction of Magistrate---Only Court of Session was competent to pass sentence mentioned under S.13 of West Pakistan Arms Ordinance, 1965 in view of S.31, Cr.P.C.---Court of Session, in circumstances had jurisdiction to try case against accused as klashnikov and its ammunition were secured from him---Case against accused having fully been proved, he was rightly convicted and sentenced by Trial Court/Sessions Judge.

Appellant in person.

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

Date of hearing: 24th July, 2003.

2004 P Cr. L J 409

[Karachi]

Before Shabbir Ahmed and Azizullah M. Memon, JJ

SHAHZAD ABID‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Revision Application No. 13 of 2003, decided on 8th April, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 540/435/439‑‑‑Penal Code (XLV of 1860), Ss.403 & 406‑‑‑Power to summon material witness‑‑‑Complainant, who at the relevant time was working as Chief Manager of Bank concerned, got registered F.I.R. against accused/petitioner for the offence of embezzlement and misappropriation of huge amount of Bank‑‑‑Said complainant subsequently had himself committed fraud/misappropriation of Bank money and absconded‑‑‑Due to non‑availability of complainant, prosecution had moved application for permission to examine a witness in place of the absconded complainant and Trial Court allowed the said application, against which accused/petitioner had filed revision petition‑‑­Validity‑‑‑Petitioner could not point out as to what prejudice was caused to him by the impugned order of Trial Court whereby Court had allowed to examine witness in place of original complainant‑‑‑Original complainant had not got registered case against petitioner/accused in his personal capacity, but in the discharge of his official duties which were cast on him in that behalf‑‑‑Successor‑in‑office in Bank, in such‑like cases had to discharge the very same duties which were then cast by law on his predecessor in the chair‑‑‑Only because the original complainant was not found available for any reason, petitioner/accused could not be allowed to take the benefit of such absence of complainant/witness‑‑‑Law enjoined upon Trial Court to fully take care of such situation and to examine all necessary witnesses‑‑‑Policy of law was to see that all accused persons who were proved .to have committed any offence were punished according to law and should not go unpunished on technical grounds‑‑‑Trial Court, in circumstances, had rightly allowed request of prosecution to examine witness in place of absconded original complainant when said witness was fully conversant with the case‑‑‑Order of Trial Court, in circumstances, could not be interfered with in revision.

Abdul Salam v. The State 2000 SCMR 102 and Dildar v. The State PLD 2001 SC 384 ref.

Muhammad Tarique Siddiqui for Applicant.

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

2004 PCr. LJ 419

[Karachi]

Before Ghulam Nabi Soomro and Muhammad Afzal Soomro, JJ

MANTHAR KOLACHI‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.D‑392 of 2002, decided on 29th October, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 4.97‑‑‑Penal Code (XLV of 1860), Ss.365‑A/337‑H(ii)/148/149‑­Anti‑Terrorism Act (XXVII of 1997), S.7‑B‑‑‑Bail, grant of ‑‑‑Abductees after kidnapping were taken to jungle where they remained captive for 17 days without any access or knowledge of their relatives ‑‑‑Abductees could not possibly make any arrangement for lodging F.I.R.‑‑‑Delay in lodging F.I.R., in circumstances, had materially been explained‑‑­Accused, as per statement recorded under S.164, Cr.P.C. used to visit dacoits kidnappers in forest and provide information to them persuading them not to release abductees unless ransom amount was received by them‑‑‑Bail application of the accused was dismissed, in circumstances.

Sajjad Hussain Kolachi for Applicant.

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

Date of hearing: 29th October, 2002.

2004 P Cr. L J 450

[Karachi]

Before Wahid Bux Brohi, J

MUHAMMAD SIDDIQUE and another‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.307 of 2003, decided on 16th July, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Pre‑arrest bail, grant of‑‑‑Judicial confession of accused had superseded the earlier extra­judicial confession which did not conform to the story regarding their role and the same would better be considered at the trial‑‑‑Accused in view of the said evidence were not present at the time of the commission of murder‑‑‑Allegation of instigation against the accused was founded on presumption and not on any direct evidence‑‑‑Accused appeared to have been implicated in the case with mala fide intention as discerned from the material on record‑‑‑Case of accused called for further inquiry ‑‑‑Pre-­arrest bail was allowed to accused in circumstances.

Meeran Bux v. The State and another PLD 1989 SC 347 and Afzal Chohan v. The State 2003 PCr.LJ 142 ref:

Muhammad Ishaq Khoso for Applicants.

Mashooq Ali Samo, Asstt. A.‑G.

Date of hearing: 16th July, 2003.

2004 P Cr. L J 480

[Karachi]

Before Wahid Bux Brohi, J

AZEEM and another‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.265 of 2003, decided on 7th July, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.324/353/147/148/149‑‑­Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)‑‑‑Bail, refusal of‑‑‑Allegation that the police constable was also given Lathi blows was not supported by medical evidence‑‑­Blows were ascribed to both accused, but only one injury caused by hard and blunt weapon was sustained by the victim‑‑‑No weapon had been recovered from accused and his case required further inquiry and he was admitted to bail in circumstances‑‑‑Hatchet had been recovered from co-­accused‑‑‑Injury on the forehead of the victim which was a vital part of the body could not be overlooked‑‑‑Bail was refused to co‑accused accordingly.

Muhammad Ishaque Khoso for Applicants.

Mashooq Ali Sarno, Asstt. A.‑G. for the State.

Date of hearing: 7th July, 2003

2004 P Cr. L J 495

[Karachi]

Before Wahid Bux Brohi, J

GHULAM HUSSAIN ‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.83 of 2003, decided on 21st July, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/201/109‑‑‑Bail, refusal of‑‑‑Accused had a strong motive to commit the offence‑‑‑Prosecution witnesses had stated that the accused had been found guilty of having illicit terms with the wife of the deceased who was a co‑accused in the case and for which she had apologized‑‑‑Was too early to draw an inference against the prosecution case at such stage‑‑‑Bail plea was premature and the same was rejected accordingly.

Ehtesham Yousuf v. State 1997 PCr.LJ 1615; Afzal Chohan v. State 2003 PCr.LJ 142 and Criminal Bail Application No.591 of 2000 distinguished.

Muhammad Ishaque Khoso for Applicant.

Nisar Ahmed Unar for the Complainant.

Rasheed A. Qureshi, Asstt. A.‑G.

Date of hearing: 21st July, 2003.

2004 P Cr. L J 503

[Karachi]

Before Muhammad Afzal Soomro, J

ALLAH BUX SHAIKH and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.68, 69 and 87 of 1991, decided on 4th July, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 409, 420, 468, 471 & 109‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Cooperative Societies A& (VII of 1925), Ss.17‑A, 43, 44, 44‑A, 44‑B, 50‑A, 55 & 70‑A‑‑‑Appreciation of evidence‑‑‑Trial Court while passing the impugned judgment had violated certain provisions of Cooperative Societies Act, 1925, inasmuch as on the death of the co‑accused during the trial who was the Chairman and main functionary of the Society, accused ought to have been acquitted but they were convicted‑‑‑Case against the accused pertained to the year 1981 and they were convicted and sentenced in the year 1991‑‑‑Since then the accused were involved in the .appeals uptil now and all this period was more than 22 years‑‑‑Accused were acquitted in circumstances.

Khanzada Hidayat Ali (Khan v. Mazhar Ali Khan and others 1985 PCr.LJ 2871; Muzaffar Ali Shah and others v. Registrar, Cooperative Societies and another PLD 1968 Kar. 422; Pir Illahi Bux Cooperative Housing Society Ltd.. v. K.B. Sanaullah and others PLD 1968 Kar. 680 and Quetta Cooperative Store Ltd. v. Province of Balochistan and 2 others PLD 1979 Quetta 60 ref.

Abdul Fateh Malik, Abdul Rehman, Bullo, Gul Bahar Korai, Muhammad baud Baloch, Abdul Ghafoor Mirani and Asadullah Bhutto for Appellants.

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

Dates of hearing: 29th and 30th May, 2003.

2004 P Cr. L J 512

[Karachi]

Before Muhammad Ashraf Leghari, J

SALEH ‑‑‑ Applicant

versus

ABDULLAH and another‑‑‑Respondents

Criminal Miscellaneous No.47 of 2003, decided on 25th August, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), Ss.324/337-A(ii)/337‑F(i)/ 337‑H(ii)/504/34‑‑‑Bail, cancellation of‑‑‑Accused were nominated in the F.I.R. who, while armed with pistols, had allegedly directly fired at the son of the complainant causing six injuries on various parts of his body‑‑­Incident had taken place in broad daylight which was supported by three eye‑witnesses‑‑‑Pistol, two live bullets and a magazine had been recovered from the accused‑‑‑Delay of four hours in lodging the F.I.R. had been explained‑‑‑Case of accused was hit by the prohibitory clause of S.497(1), Cr.P.C. and was not a case of further inquiry‑‑‑Bail had been granted to accused by trial Court on frivolous grounds in improper exercise of its discretion‑‑‑Sufficient evidence was‑ available on record to directly implicate the accused in the case‑‑‑Bail allowed to accused was cancelled in circumstances.

Muhammad Ismail Memon for Applicant.

Habibur Rashid, State Counsel.

Date of hearing: 25th August, 2003.

2004 P Cr. L J 526

[Karachi]

Before Wahid Bux Brohi, J

RAJOO and another‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.226 of 2003, decided on 7th July, 2003.

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

‑‑‑‑S. 497‑‑Penal Code (XLV of 1860), Ss.324/504/34‑‑‑Bail‑‑‑Accused according to the unanimous version had the grudge and, prima facie, he had the motive to commit the offence under S.324, P.P.C. in which he had used the hatchet at odd hours of the night after having come prepared‑‑‑Such allegations could not be discarded at this early stage, unless evidence would come on record to the contrary‑‑‑Bail was declined to accused in circumstances.

Syed Abdul Baqi Shah v. The State 1997 SCMR 32; Haji Maa Din and another v. The State and another 1998 SCMR 1528 and Muhammad Naseem v. The State 2002 PCr.LJ 438 ref.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.324/504/34‑‑‑Bail, grant of‑‑­Accused was not present when first part of the incident had taken place and even at ‑the crucial time after snatching the hatchet, as per allegations, he had intentionally avoided to use its sharp side‑‑‑Case against accused, thus, required further inquiry‑‑‑Accused was admitted to bail accordingly.

Noor Nabi G. Memon for Applicants.

Muhammad Azim Panwhar for the State.

Date of hearing: 7th July, 2003.

2004 P Cr. L J 535

[Karachi]

Before Muhammad Ashraf Leghari, J

MUHAMMAD IMRAN‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.907 of 2003, decided on 25th August, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.392/34‑‑‑Bail, refusal of‑‑‑Accused was named in the promptly lodged F.I.R.‑‑‑Occurrence had taken place at day time‑‑‑Accused had been apprehended at the spot by the Mohalla people‑‑‑No‑ enmity was alleged against the complainant or other prosecution witnesses‑‑‑Case fell within the prohibition contained in S.497(1), Cr.P.C.‑‑‑Sufficient ocular evidence was available on record to prima facie involve the accused in the commission of the offence of robbery‑‑‑No scope of further inquiry was available in the case‑‑‑Bail was declined to accused in circumstances.

Muhammad Sharif v. State and others 1999 MLD 692; Amjad Hussain v. State 1999 MLD 438 and Muhammad Asif Mumtaz v. State 1.999 PCr‑.LJ 283 ref.

Zafar Warraich for Applicant

Mrs. Shamim Hashmi for the State

Date of Bearing: 25th August, 2003

2004 P Cr. L J 548

[Karachi]

Before Wahid Bux Brohi, J

MUHAMMAD ASLAM‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 173 of 2003, decided on 15th July, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 197.9), Ss.11/16‑‑‑Bail, , refusal of‑‑‑Affidavits of prosecution witnesses exonerating the accused in the presence of‑statement of the abductee on the record would not damage the prosecution case at this stage‑‑­Abductee; in her statement under S.164,.Cr.P.C. had charged the accused with forcible abduction, Zina and wrongful confinement‑‑Absence of marks of violence on the body of the abductee was of no material significance as she had allegedly been confined for a number of days at the point of fire‑arms‑‑‑Bail was declined to accused in circumstances.

Muhammad Ismail. v. .The State 1994 PCr:LJ, 910; Khan Muhammad v. The State 1994 PCr.LJ 2542; Muhammad Nawaz alias Najja v. The State 1991 SCMR 111 and Atiq‑ur‑Rehman v. The State 1995 MLD 1073 ref.

Noor Ahmed Memon for Applicant.

Anwar A. Ansari for the State.

Date of hearing: 15th July, 2003.

2004 P Cr. L J 556

[Karachi]

Before Muhammad Afzal Soomro, J

SABIR ALI ‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.61 of 2003, decided on 27th June, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/34‑‑‑Bail, grant of‑‑­Accused, according to F.I.R., while armed with a pistol had participated .in the occurrence alongwith other‑accused persons who were also armed with a pistol and a rifle and besides instigation they all had fired collectively hitting the deceased ‑‑‑Co‑accused armed with the rifle was assigned specific role of having fired at the deceased which had hit him‑‑­Only one crime‑empty of rifle was recovered from the spot whereas the accused was allegedly armed with a pistol‑‑‑Which of the accused had caused fatal injury to the deceased was to be determined at the trial‑‑‑One prosecution witness in his statement under 5.164, Cr.P.C. had not implicated the accused in the case which was of cross‑versions‑‑‑Version favourable to accused was tentatively to be accepted in case of two versions‑‑‑Prosecution case apparently called for further inquiry‑‑­Accused was admitted to bail in circumstances.

Shahbaz Gul v. The State 1984 PCr.LJ 2495; Jaffar and others v. The State PLD 1980 SC 786; Mahfooz‑ur‑Rehman and others v. The 'State 2001 PCr.LJ .1692 and Aslam and others v. State 1999 MLD 1033 ref.

Zia Ahmed Jalbani for Applicant.

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

Date of hearing: 13th June, 2003.

2004 P Cr. L J 566

[Karachi]

Before Wahid Bux Brohi, J

DADAN and 2 others‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.294 of 2003, decided on 18th July, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/149‑‑‑Bail‑‑‑Main allegation against the accused was that they had resisted the police, but admittedly according to the F.I.R. the police had succeeded in capturing the accused who had made the firing and only thereafter the present accused had put in resistance‑‑‑Accused were not alleged to have attempted to fire at the deceased‑‑‑No crime weapon was recovered from the accused‑‑‑Bail was allowed to accused in circumstances.

Attaullah and 3 others v. The State 1999 SCMR 1320 and Faraz Akram v. The State 1999 SCMR 1360 ref.

Muhammad Sharif Siyal for Applicants.

Anwar H. Ansari for the State.

Date of hearing: 18th July, 2003.

2004 P Cr. I. J 568

[Karachi]

Before Wahid Bux Brohi and Muhammad Moosa K. Leghari, JJ

AMAN KHAN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Special Anti‑Terrorism Appeal No.2 of 2001, decided on 28th January, 2003.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b) & 302(c)‑‑‑Offence of Zina (Enforcement Ordinance (VII of 1979), S.10(3)‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.6(c)‑‑‑Appreciation of evidence‑‑‑Flat from where the dead body of the deceased girl was recovered was in the exclusive possession of the accused‑‑‑Recovery of the blood‑stained dagger and blood‑stained clothes on the pointation of the accused was established‑‑‑Merely because the said articles were recovered in the presence of the police witnesses was not sufficient to disbelieve the recovery‑‑‑Chemical report in respect of the aforesaid articles was in positive‑‑‑Said recovery was not disproved by the defence‑‑‑Guilt of the accused with regard to the murder of the girl was proved on record‑‑‑Prosecution had neither set up any motive for the occurrence nor had proved it and the same was shrouded in mystery‑‑‑Conviction of accused under S.302(b), P.P.C. was altered to S.302(c), P.P.C. in circumstances and his sentence of imprisonment for life was reduced to 10 years' R.I.

Abdul Haq v. The State PLD 1996 SC 1; Ali Muhammad v. Ali Muhammad PLD 1906 SC 274; Bilal Ahmed v. The State 1999 SCMR 869 and Gul Muhammad Gondal v. Muhammad Nawaz 2002 SCMR 1188 ref.

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

‑‑‑‑S. 10(3)‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.6(c)‑‑‑Vaginal swabs of the deceased girl were not sent for chemical examination and no other positive evidence was available to connect the accused with the commission of Zina with her‑‑‑Conviction of accused under S.10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with S.6(c) of the Anti‑Terrorism Act, 1997, was consequently set aside and he was acquitted of that charge accordingly.

Salahuddin Khan Gandapur for Appellant.

Habib Ahmed, A.A.‑G. for the State.

Date of hearing: 22nd January, 2003..

2004 P Cr. L J 573

[Karachi]

Before Wahid Bux Brohi, J

SHABBIR HUSSAIN and another‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.101, 103 and 94 of 2000, decided on 18th October, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 395, 324 & 353‑‑‑Constitution of Pakistan (1973), Art.203DD‑‑­Criminal Procedure Code (V of 1898), S.561‑A‑‑‑Competency of appeals before High Court‑‑‑Case before the High Court was neither one of exercise of revisional jurisdiction nor of powers under inherent jurisdiction within the meaning ofS.561‑A, Cr.P.C.‑‑‑Appeals had arisen out of the judgment whereby the accused had been convicted for an offence under S.395, P.P.C. as Ta'zir and sentenced to five years' R.I.‑‑­Trial Court had observed that it could not convict the accused for the offence of "Haraba" liable to Hadd and, therefore, it had imposed punishment as Ta'zir‑‑‑Ostensibly it was done within the scope of S.20 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, and on that score the appellate forum was the, Federal Shariat Court as contemplated under S.24 of the said Ordinance‑‑‑Appeals, thus, would be to the Federal Shariat Court and not to High Court and the same were dismissed for want of jurisdiction accordingly.

Ghulam Muhammad v. State 2000 PCr. W 1155; Falaksher v. State 1996 PCr.LJ 804; Pirak v. State 1997 PCr.LJ 1900; Sakhi Dost Jan v. Pakistan. Narcotics Control Board 1998 SCMR 1798; Allah Ditto v. Ishtiaque Ahmed Soomro 1999 PCr.LJ 1996; Sardarullah v. State 1998 PCr.LJ 2001; Khursheed v. State 1990 PCr.LJ 409; Umar Dad Khan v. Tila Muhammad Khan PLD 1970 SC 288; Bibi Gurdevi v. Muhammad Bakhsh AIR 1943 Lah. 65 and Rasool Bakhsh v. State 1998 PCr.LJ 438 ref.

Salahuddin Khan Gandapur for Appellants (in Criminal Appeal No. 101 of 2000).

S.M. Iqbal for Appellant (in Criminal Appeal No.103 of 2000).

Ashraf Ali Butt for Appellant (in Criminal Appeal No.94‑ of 2000)

Mahmood A. Qureshi: Amicus curiae.

Javed Akhtar State Counsel.

Date of hearing: 9th September, 2002.

2004 P Cr. L J 584

[Karachi]

Before Wahid Bux Brohi, J

HAMEED alias ABDUL HAMEED and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 110 of 2003, decided on 10th April, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.364/452/458/147/148/337‑H(ii)/506‑‑‑Bail, refusal of‑‑‑Lady had been abducted in the presence of the eye‑witnesses‑‑‑Although for the time being no evidence of the murder of the lady was available, but prima facie the allegations showed that the offences under Ss.364 & 458, P.P.C. besides other offences mentioned in the F.I.R. had been committed‑‑‑Premature to presume that the case called for further inquiry‑‑‑Bail was refused to accused in circumstances.

1989 PCr.LJ 667 ref.

Ali Nawaz Ghanghro for Applicants.

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

Date of hearing: 10th April, 2003.

2004 P Cr. L J 611

[Karachi]

Before Muhammad Sadiq Leghari, J

MUHAMMAD RAEES‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 198 of 2003, decided on 24th April, 2003.

Criminal Procedure Code (V of 1898)‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.392/34‑‑‑Bail, grant of‑‑­Recovery of some of robbed jewellery though was said to have been made from the accused, but same was made many days after incident‑‑­No identification parade was held to ascertain whether accused was among the culprits who had committed robbery‑‑Embargo put by S.497, Cr.P.C. was not applicable to the case in absence of evidence against accused that he possessed robbed articles and that offence against accused itself being not punishable with imprisonment for 10 years or more‑‑‑Accused had remained in jail for one year, but not a single witness had been examined nor charge had been framed‑ ‑‑Accused, in circumstances deserved concession of bail.

Mumtaz Ali Deshmukh for Applicant.

Chaudhri Fazul Rehman Awan for the State.

2004 P Cr. L J 618

[Karachi]

Before Muhammad Ashraf Leghari, J

NADEEM‑UL‑HAQUE‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 121 of 2003, decided on 10th March, 2003.

Criminal Procedure Code (V of 1898)‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.392‑‑‑Bail, grant of‑‑‑Accused was in jail for about five years, but out of eight witnesses, only three could be examined so far‑‑‑Maximum sentence provided under S.392, P.P.C. was 10 years‑‑‑Accused had served out major portion of maximum sentence‑‑‑Detention period of accused as under-trial prisoner was shocking to conscience‑‑‑People could not be allowed to remain in custody for indefinite period‑‑‑Co‑accused had been granted bail by Trial Court‑‑‑Accused was admitted to bail, in circumstances.

Mumtaz Ali Khan Deshmukh for Applicant.

Habib‑ur‑Rasheed for the State.

2004 P Cr. L J 632

[Karachi]

Before Muhammad Sadiq Leghari, J

MUHAMMAD AMIR‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.897 and M.A. Nos.2850, 467 of 2003, decided on 2nd September, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.397/34‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑D‑‑‑Bail, refusal of‑‑‑Evidence on record showed that accused was one of the bandits having robbed the complainant of cash and then made him hostage‑‑‑Accused was captured while running after arrival of police on the cries of victim/complainant‑‑­Identification was also arranged and complainant had rightly picked up the accused in presence of the Magistrate‑‑‑Acquittal of accused in the case under S.13‑D of West Pakistan Arms Ordinance, 1965 for non­-production of evidence before Trial Court, would not justify grant of bail to accused in the case.

Mst. Riffat for Applicant.

Mumtaz Ali Khan Deshmukh for the State.

2004 P Cr. L J 635

[Karachi]

Before Wahid Bux Brohi, J

VAKIL AHMED ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Applications Nos. 1261, 1237 of 2001, heard on 1st October, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑West Pakistan Arms Ordinance (XX of 1965) S. 13‑D‑‑‑Surrender of Illicit Arms Act (XXI of 1991), Ss.4, 5 & 7‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Predominant requirement for bringing offence within domain of S.7 of Surrender of Illicit Arms Act, 1991 was contravention of S.4 or 5 of the said Act‑‑‑Section 4 of Surrender of Illicit Arms Act, 1991 called upon all persons in possession or control of any illicit arms to surrender such arms within time notified by Federal Government, but no such Notification was issued up to the date of commission of offence‑‑‑No apparent contravention was made of S.4 of Surrender of Illicit Arms Act, 1991 on the date of commission of alleged offence‑‑‑Contention of accused that ex facie essential requirement of the offence under S.7(1) of Surrender of Illicit Arms Act, 1991, was lacking, carried much weight‑‑‑Prosecution had to establish at the trial if the offence was made out‑‑‑Case of accused called for further inquiry‑‑‑Case against accused under S.13‑D of West Pakistan Arms Ordinance, 1965 did not fall within prohibitory clause of S.497(1), Cr.P.C.‑‑‑Accused was admitted to bail, in circumstances.

M. Habib Jalib, Mumtaz Ali Khan, Raza Hashmi, Dilawar Hussain and Nisar Ahmed Dogar for Applicant.

Sharafat Ali Khan for the State.

Date of hearing: 1st October, 2001.

2004 P Cr. L J 644

[Karachi]

Before Muhammad Sadiq Leghari, J

SHAHZAD AHMED‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.298 of 2002, decided on 4th February, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 324‑‑‑Appreciation of evidence‑‑‑Complainant/victim lady though had deposed that due to frequent quarrels between her and her accused husband over his illicit connections with another lady, he had set her on fire after pouring kerosene on upon her, but her evidence could not be believed safely in the light of evidence of Doctor concerned and prosecution witnesses‑‑‑Doctor who had examined complainant/victim lady, had deposed that she stated before him that she was burnt accidentally and that she never blamed her husband for burning her‑‑‑One of the prosecution witnesses who timely entered the house first of all by scaling over the wall, had deposed that when he entered the house of complainant after hearing her cries, her husband was found to have put blanket upon the complainant‑‑‑Nothing was available to evidence of said witness, that her husband set her on fire‑‑‑Other prosecution witness also did not allege that complainant had ever alleged that her husband had ser her on fire‑‑‑Evidence of said witness had only shown that accused had not made attempt to extinguish fire before his entry in the house of complainant, but evidence of said witness was in conflict with evidence of other prosecution witness who had deposed that accused had put blanket upon complainant to extinguish fire‑‑‑Prosecution evidence was not of such standard which could be made basis for conviction of the accused‑‑‑Accused deserved benefit of doubt and his conviction could not be sustained‑‑‑Conviction and sentence recorded against accused by Trial Court were set aside and he was set at liberty.

Mumtaz Ali Khan Deshmukh for Appellant.

Fazal‑ur‑Rehman Awan for the State.

Date of hearing: 16th December, 2002.

2004 P Cr. L J 649

[Karachi]

Before Muhammad Afzal Soomro, J

MUHAMMAD HASSAN ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.179 of 2003, decided on 12th February, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Bail, grant of‑‑‑Accused allegedly was an aged person, very weak and having disease of piles on account of which blood was oozing and treatment by way of operation was very necessary for him‑‑‑No independent witness was cited in the case and both witnesses, were interested being related to the deceased‑‑‑If prosecution version was believed to the extent that accused had killed the deceased because of illicit terms with his daughter, case of accused would come within definition of sudden and grave provocation‑‑‑Accused had remained in jail for more than three and half years, but Trial Court had not framed charge so far‑‑‑Case was fit where accused was entitled to grant of bail‑‑‑State Counsel did not oppose grant of bail on grounds of illness and hardship caused to accused by remaining in custody for more than 3‑1/2 years‑‑‑Accused having been able to make out a case for bail, he was admitted to bail.

Khadim Hussain Solangi for Applicant.

2004 P Cr. L J 668

[Karachi]

Before Muhammad Sadiq Leghari, J

WASIM RIAZ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.1316 of 2002, decided on 4th November, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.392/34‑‑‑Bail, grant of‑‑­F.I.R. was delayed and explanation advanced in respect of said delay was not convincing‑‑‑Remote Control allegedly produced by accused could have been easily foisted upon him as its price was only Rs.100 to 200 and same was available in the market‑‑‑No valuable article was recovered from accused‑‑‑Case of accused, was fit for grant of bail, in circumstances.

Mumtaz Ali Khan Deshmukh for Applicant.

Habeeb‑ur‑Rasheed for the State.

2004 P Cr. L J 669

[Karachi]

Before Rahmat Hussain Jafferi, J

HUSSAIN AHMED ‑‑‑Applicant

Versus

THE STATE‑-‑Respondent

Criminal Bail Application No.508 of 2002, decided on 22nd 2003.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Bail, grant of‑‑‑Accused, during investigation was found involved in the case by collecting several pieces of evidence including his confession‑‑‑Role of causing fire-arm, injury to the deceased had been assigned to the accused, which he had confessed in his judicial confession which was to be scrutinized at the stage of final decision in the light of evidence of the Magistrate and other pieces of evidence produced at the trial‑‑‑Evidence of eye‑witnesses and recovery of pistol from possession of accused had prima facie made out a case against accused and reasonable grounds were available to believe that accused was involved in the case‑‑‑Accused was not entitled to concession of bail on merits‑‑‑Third and fourth provisos to S.497, Cr.P.C. having been repealed at the time when the required period of two years had not expired, statutory ground of delay in disposal of the case for two years, was not available to accused‑‑‑Bail on ground of delay could be granted in appropriate cases, if delay had caused abuse of process of law, but delay per se was not a sufficient ground for grant of bail in murder cases‑‑‑Ground of delay was no more available to accused as statutory right after omission of third and fourth provisos to S.497(1), Cr.P.C.

Ali Akbar v. State 1988 MLD 186; Mst. Maryam v. State PLD 1961 Kar. 731; Criminal Bail Application No.605 of 1998; Mahmood and another v. State Criminal Bail Application No. 140 of 1989 Karamatullah v. State Criminal Bail Application No.774 of 2002 Ahmed v. State Criminal Bail Application No.71 of 2002, Saindad v. State and Criminal Bail Application No.513 of 2002 Ahrar Muhammad v. State PLD 1974 SC 224 and Barkhurdar v. Liaquat Ali and 2 others PLD 1977 SC 434 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Bifurcation of case‑‑‑One of the duties of the Court was to see that case should be proceeded with at an early date and for such purpose case of accused persons who were not attending the Court, could be bifurcated‑‑‑Where more than one accused was involved, commencement of proceedings should not be held up till all the wanted persons were apprehended, but case should be proceeded with as soon as the principal accused was secured, excepting exceptional circumstances with the special permission of District Magistrate concerned.

Ghulamullah Mahoto for Applicant.

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

Date of hearing: 22nd January, 2003.

2004 P Cr. L J 685

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

MUHAMMAD YOUSUF‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.60 of 2001, decided on 3rd October, 2003.

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

‑‑‑‑S. 9(c)‑‑‑Appreciation of evidence‑‑‑Out of five prosecution witnesses only one was private independent Mashir and he did not support the prosecution case‑‑‑Statements of other prosecution witnesses were contradictory to each other‑‑‑Complainant. Police Officer, who had no concern with Police Station in jurisdiction of which incident had taken place and case was registered, had investigated case and said police officer could not produce any letter from Competent Authority to show that investigation was transferred from relevant police station to his police station‑‑‑Investigation conducted by an officer not authorized by law, though would not vitiate trial as provided under S.156(2), Cr.P.C., but undue interest demonstrated by complainant police officer in the case had clearly shown that case was investigated by him with mala fide intention‑‑‑Doubt had been created with regard to prosecution story, particularly from the statement of sole private independent Mashir‑‑‑Said Mashir who did not support prosecution case with regard to recovery of Charas from possession of accused, was declared hostile and District Attorney cross‑examined him‑‑‑Case of prosecution was put to said Mashir in cross‑examination, but he denied the same‑‑‑Evidence of said Mashir had adversely affected not only prosecution story, but also the veracity of statements of police officials‑‑‑Case of prosecution against accused being highly doubtful, accused was entitled to benefit of such doubt, and same was accordingly extended to him‑‑‑Conviction and sentence awarded to accused by Trial Court were set aside and he was acquitted and set at liberty.

Tariq Pervez v. State 1995 SCMR 1345 and Iltaf Hussain v. State 1990 SCMR 167 ref.

Shabadat Awan for Appellant.

Jawaid Akhtar for the State.

Date of hearing: 3rd October, 2003.

2004 P Cr. L J 697

[Karachi]

Before Muhammad Sadiq Leghari, J

LAIQ SHAH‑‑‑Applicant.

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.244 of 2003, heard on 12th March, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

-----S. 497‑‑‑Penal Code (XLV of 1860), S.395‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑D‑‑‑Bail, refusal of‑‑‑Accused was named in the F.I.R.‑‑‑Accused was captured by complainant party, but later on his companions got him released after threatening complainant party‑‑­Three other cases were pending against' accused‑‑‑Complainant and prosecution witness though had not identified the accused under S. 13‑D of West Pakistan Arms Ordinance, 1965, but that would not mean that they would also not depose against him in case against accused under S.395, P.P.C.‑‑‑F.I.R. was signed by complainant but he resiled from the contents thereof and as such, action could be initiated against him‑‑­Accused was involved in heinous case of dacoity which was covered by prohibitory clause of S.497(1), Cr.P.C.‑‑‑Cash amount of Rs.4,000 was recovered from the possession of accused and ocular evidence as per contents of F.I.R. was available against him‑‑‑Case had not yet proceeded‑‑‑Accused at that stage did not deserve bail.

Muhammad Shafi Khan for Applicant.

Mumtaz Ali Khan Deshmukh for the State.

2004 P Cr. L J 699

[Karachi]

Before Azizullah M. Memon, J

MUHAMMAD YOUNUS‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Revision Application No.43 of 2003, decided on 1st July, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 540‑‑‑Application to recall Investigating Officer for further cross- examination‑‑‑Application prayed for recalling Investigating Officer for his further cross‑examination on the ground that his deposition was recorded during the trial of case earlier than those of prosecution witnesses‑‑‑Application of applicant having been dismissed, he had filed revision against judgment of Trial Court‑‑‑Validity‑‑‑Provisions of S.540, Cr.P.C. had .empowered the Court at any stage of inquiry or any other proceeding to summon any person as a witness or recall and re‑examine any person already examined and it was obligatory for the Court to summon and examine any person if his evidence appeared to it essential for , the just decision of the case‑‑‑Witnesses in the present case, were to be confronted with their statements under S.161, Cr.P.C. before the Investigating Officer and to see whether they had deposed truthfully for the just and proper decision of the case‑‑‑High Court allowing revision petition set aside order of Trial Court with direction to re‑summon Investigating Officer and to allow a fair opportunity to accused for the purpose of his cross‑examination with regard to particular pieces of evidence of prosecution witness and further to proceed with the case and to decide the same according to law.

Shah Nawaz and others v. The State PLD 1959 (W.P.) Kar. 383; Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95; Syed Ali Nawaz Gardezi v. Lt.‑Col. Muhammad Yusuf PLD 1963 SC 51; The State v. Maulvi Muhammad Jamil and others PLD 1965 SC 881; Rashid Ahmad v. The State PLD 1971 SC 709; Bashir Ahmed v. The State and another 1975 SCMR 171 and Yasim alias Cheema and another v. The State 1980 SCMR 575 ref.

Jawaid Haider Kazmi for Applicant.

Habib‑ur‑Rasheed for the State.

Date of hearing: 1st July, 2003.

2004 P Cr. L J 707

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

BASHIR AHMED ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.438 of 2003, decided on 4th June, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑­Neither the accused nor any witness was named in the F.I.R.‑‑‑F.I.R. was lodged after a delay of fifteen days‑‑‑No direct evidence was available in the case‑‑‑Belated circumstantial evidence collected by the investigating agency haring been belied by the medical evidence appeared to be fabricated‑‑‑Recovery of incriminating article at the behest of accused was not contemporaneous with the utterance of disclosure as both the elements were separated by long passage of time and it was yet to be determined by the Trial Court whether such recovery in the shape of circumstantial evidence was acceptable or not‑‑‑Guilt of accused required further inquiry‑‑‑Accused was admitted to bail accordingly.

Yousuf v. The State 1975 PCr.LJ 936; Bonay Khan v. The State 1975 PCr.LJ 453; Khudr Ali Abbasi v. The State PCr.LJ 634; Umer Hayat v. Jehangir and others 2002 SCMR 629 and Muhammad Ishaq v. Muhammad Nadeem and others 2002 SCMR 440 ref.

S. Jawaid Haider Kazmi for Applicant.

Fazlur Rehman for the State.

2004 P Cr. L J 711

[Karachi]

Before Muhammad Sadiq Leghari, J

ZULFIQAR‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.403 of 2003, decided on 29th April, 2003.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.392/34‑‑‑Bail, refusal of‑‑­Accused was captured and the robbed motorcycle and crime weapon/pistol were recovered from him‑‑‑‑Recovery of robbed motorcycle from accused within less than an hour's time, had connected the accused prima facie with offence of robbery‑‑‑Evidence on record had furnished reasonable grounds to believe that accused was guilty of charge of robbery of motorcycle‑‑‑Arguments about non‑compliance of provisions of S.103, Cr.P.C. and identification test had no force in circumstances‑‑­Identification test could be arranged, but same was not arranged due to lapse on the part of Investigating Officer‑‑‑Other material evidence would not lose its importance for said lapse‑‑‑Bail was declined to the accused in circumstances.

State through Advocate‑General, Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1 and State through Advocate‑General, Sindh v. Bashir and others PLD 1997 SC 408 ref.

Ashiq Muhammad for Applicant.

Mumtaz Ali Khan Deshmukh for the State.

2004 P Cr. L J 713

[Karachi]

Before S. Ali Aslam Jafri, J

MUHAMMAD ARIF‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.370 of 2003, decided on 5th May, 2003.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, refusal of‑‑­Case of accused was distinguishable from that of co‑accused already bailed out by Trial Court‑‑‑Evidence was available to prima facie link the accused with the commission of the offence‑‑‑Case having been repeatedly adjourned on behalf of accused, despite the witnesses being available, delay in disposal of the same within the specified time given by High Court, could not make him entitled to grant of bail and it could not be deemed to be a fresh ground for bail‑‑‑Assessment and appraisal of the evidence of the prosecution witnesses examined by the Trial Court was not permissible in law at bail stage‑‑‑Bail was declined to accused in circumstances.

Ali Ahmed Junejo for Applicant.

Qazi Khalid Ali, Addl. A.‑G. for the State.

Muhammad Kasir for the Complainant.

2004 P Cr. L J 722

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

AFTAB‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Bail Application No.224 of 2003, decided on 20th March, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), Ss.336/337‑A(iii)/337‑A(i)/504‑‑‑Pre‑arrest bail, cancellation of‑‑‑Charge‑sheet had already been filed during pendency of bail application before the Sessions Judge‑‑­F.I.R., showed the name of accused nominated with specific role and there was corroboration of medical evidence to support version of the complainant‑‑‑Not a single instance had been placed on record nor it had been argued that accused had been involved falsely‑‑‑Points raised in support of merits of case, could only be examined by Trial Court if accused would surrender himself before Court‑‑‑Accused having failed to make out a, case of confirmation of bail, interim bail granted to accused was recalled and he was directed to surrender himself before Trial Court or before proper Authorities.

Muhammad Shafi v. The State 1999 SD 577; Muhammad Yar alias Kali and another v. The State 2001 YLR 581; Abdul Jabbar and others v. The State 2001 PCr.LJ 1956 and Murad Khan v. Fazle Subhan PLD 1983 SC 82 ref.

Miss Razia Khan Afridi for Applicant.

Mohsin Imam for the State.

Date of hearing: 20th March, 2003.

2004 P Cr. L J 725

[Karachi]

Before Muhammad Sadiq Leghari, J

Mst. NADIA ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Application No.62 of 2003, decided on 8th August, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 561‑A‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 13, 14 & 18‑‑‑Quashing of proceedings‑‑‑Only evidence against applicant/accused was that she was going with a person who allegedly was involved in prostitution business and that said person had admitted before Police that he was taking the applicant for supplying to a customer‑‑‑Applicant having been simply seen in the company of said person, could not override the presumption of innocence of the applicant‑‑‑If said person had made some admission before police implicating the applicant, that was not the evidence admissible under law‑‑‑If applicant was not found to be virgin in the result of Medical Check up, that by itself could not be used as evidence justifying her conviction in the case‑‑‑No possibility of conviction of applicant thus existed‑‑‑Proceedings against applicant, in circumstances, were liable to be quashed being abuse of process of law.

S. Jawaid Haider Kazmi for Applicant.

Miss Akhtar Rehana for the State.

2004 P Cr. L J 727

[Karachi]

Before Zahid Kurban Alvi and Sarmad Jalal Osmany, JJ

Mst. ZAKIA DADA‑‑‑Petitioner

Versus

GOVERNMENT OF SINDH through Secretary to the Government of Sindh and others‑‑‑Respondents

Constitutional Petition No.847 of 2002, heard on 8th July, 2002.

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

‑‑‑‑S. 382‑B‑‑‑Constitution of Pakistan (1973), Art.25‑‑‑Grant of benefit of remission‑‑‑ Benefit of remission which was normally granted to a convict, should also be extended to an under‑trial prisoner as he was deprived of his liberty and conviction for the offence with which such accused was charged, would begin from the date of his arrest‑‑‑Such accused should be treated at par with other accused who had been convicted and were being given benefit of remission and not to do so would be violative of Art.25 of Constitution of Pakistan, (1973) which had guaranteed equality before the law to all citizens.

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

‑‑‑‑S. 382‑B‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Remission, whether should be counted from the date of conviction or from the date of arrest‑‑‑Conflict between judgments of two Division Benches of High Court‑‑‑One of the Division Bench of High Court in its earlier decision had held that under all eventuality remissions were to be counted from date of conviction of accused, whereas in another case Division Bench had reached the contrary conclusion holding that remission should be counted from date of arrest of accused‑‑‑High Court in view of said difference of opinion, directed that matter alongwith aforementioned cases be placed before the Chief Justice in order to seek his direction whether a larger Bench be constituted so that matter of remissions being counted from date of arrest or from date of conviction could be resolved.

Muhammad Mobeen Khan v. The State (Criminal Miscellaneous No.275 of 2001); Mian Muneer Ahmed v. The State (Criminal Accountability Appeal No.4 of 2001); Muhammad Rafeeq v. The State 1995 SCMR 1525; Ghulam Murtaza v. The State PLD 1998 SC 152 ref.

Rashid A. Rizvi for Petitioner.

Sarwar Khan, A.A.‑G. for Respondent.

Date of hearing: 8th July, 2002.

2004 P Cr. L J 736

[Karachi]

Before Ghulam Nabi Soomro and Muhammad Afzal Soomro, JJ

Rana DIL MUHAMMAD ‑‑‑Applicant

Versus

THE STATE‑ ‑‑Respondent

Special Anti-Terrorism Rev. No.61 of 2003, decided on 31st January, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 345, 435 & 439‑‑‑Penal Code (XLV of 1860), Ss.302(b), 311 & 324‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7(1)(a)‑‑‑Compromise‑‑­Application for‑‑‑Application was filed by accused wherein prayer was made to allow parties to enter compromise‑‑‑Said application was dismissed by Trial Court observing that though S.302, P.P.C. was compoundable, but S.7(1)(a) of Anti‑Terrorism Act, 1997 under which accused had also been convicted and had been sentenced to death was not compoundable ‑‑‑Even though the accused were sentenced to suffer imprisonment for committing offence under Anti‑Terrorism Act, 1997, in the event of parties entering into compromise pertaining to substantive/main offence of such a case, the compromise so entered into by parties, could be entertained in accordance with law‑‑‑If compromise was competently and generally entered into by parties, same could be allowed even though conviction could have been awarded under one or more sections of Anti‑Terrorism Act, 1997‑‑­Accused having not been convicted separately for offence under S.7(1)(a) of Anti‑Terrorism Act and further detailed reasons were to be recorded later on, High Court set aside order of the Trial Court whereby application of accused for entering into compromise was dismissed, with direction to the Trial Court to dispose of compromise application of accused in accordance with law, keeping in view provisions of S.311, P.P.C. after holding necessary inquiry in relation to genuineness of compromise.

Ghulam Shabbir and 2 others v. The State 2003 SCMR 553 ref.

Nayyar Ziauddin for Applicant.

Habib Ahmed, A.A:‑G. for the State.

Date of hearing: 21st November, 2003.

2004 P Cr. L J 746

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

Khan MUHAMMAD KHAN‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Revision No.53 of 2003, decided on 9th October, 2003.

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

‑‑‑‑Ss. 9(c), 32 & 33‑‑‑Criminal Procedure Code (V of 1898), Ss.516‑A & 517‑‑‑Confiscation of car used in offence‑‑‑Application to recall confiscation order‑‑‑Car allegedly used in commission of offence was ordered by the Special Court to be confiscated and auctioned‑‑‑Applicant who claimed to be owner of said car filed application to recall such confiscation order‑‑‑Evidence on record had shown that vehicle in question was sold by applicant and part payment of the sale consideration was received by him‑‑‑Applicant had handed over possession of the same to the accused who plied it by exercising all lawful rights as owner after having purchased the same from the applicant‑Applicant, though in view of the registration papers, could claim to be the owner, but admitted position was that car in question was sold out on instalments and practically in view of practice in vogue, ownership of car had passed to accused/purchaser and only legal formalities etc. in the record were yet to be completed on account of recoverable balance amount—Term 'owner' used in S.32 of Control of Narcotic Substances Act. 1997, on the face of it, would deem to include the new owner to whom car was sold and its possession delivered‑‑‑Car used in commission of offence, in circumstances, was liable to confiscation‑‑‑Order of Special Court with regard to confiscation and auction of car used in the commission of offence, could not be interfered with.

Haji Abdul Razzak v. Pakistan PLD 1974 SC 5 ref.

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

‑‑‑‑Preamble, Ss.4, 6, 7, 8, 9, 10, 12 & 14‑‑‑Intent and object behind enacting Control of Narcotic Substances Act, 1997, inter alia, was to control the production, processing and trafficking of narcotics etc. and the Act being a special law the effective provisions thereof could not be defeated on technicalities.

Latifur Rehman Sarwari for Applicant.

Javed Akhtar for the State.

2004 P Cr. L J 749

[Karachi]

Before Muhammad Afzal Soomro, J

ABDUL QADAR QURESHI‑‑‑Applicant

Versus

MASOODUDDIN and 4 others‑‑‑Respondents

Criminal Miscellaneous Application No. 173 of 2003, decided on 20th November, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.561‑A & 439‑A‑‑‑Penal Code (XLV of 1860), S.408/34‑‑‑Qanun‑e­-Shahadat (10 of 1984), Arts. 158 & 161‑‑‑Inherent powers of High Court under S.561‑A, Cr.P.C., exercise of‑‑‑Scope‑‑‑Applicant/accused had approached the High Court by filing application under S.561‑A, Cr.P.C. for setting aside order passed by Sessions Judge on review application of the respondent‑‑‑Application under S.561‑A, Cr.P.C. was not maintainable in view of the fact that according to S.439‑A, Cr.P.C. Sessions Judge or Additional Sessions Judge had been empowered to exercise any of powers conferred on High Court and subsection (4) of S.439‑A, Cr.P.C. had barred jurisdiction of High Court to entertain any proceedings in revision with respect to an order made by Sessions Judge under S.439‑A, Cr.P.C.‑‑‑Provisions of S.561‑A, Cr.P.C. could not be invoked to circumvent or bypass any express provisions of the Cr.P.C.‑‑­Powers conferred under S.561‑A, Cr.P.C. though were far and wide, but resort to said powers could be had in exceptional cases, when it was necessary to prevent abuse of the process of the Court or to secure ends of justice‑‑‑If application filed by applicant under S.561‑A, Cr.P.C. was allowed, same would tantamount to entertaining a second revision against order of Sessions Judge passed under S.439‑A, Cr.P.C.‑‑‑High Court under S.561‑A, Cr.P.C. could only interfere with order/judgment passed by Sessions Judge under S.439‑A, Cr.P.C. when extraordinary circumstances i.e. finding conviction based on no evidence at all etc., were brought to the knowledge of the Court‑‑‑Documents sought to be produced by respondent and refused to be accepted by Trial Court, in the present case, being material and relevant to the fact in issue and the fate of the case, could be decided by Sessions Judge on basis of the same which was decided accordingly, in review application of the respondent.

Rajo v. Muhammad Qasim 1978 PCr.LJ 706 and Burewala Textile Mills Limited v. The State PLD 1978 Lah. 287 ref.

Miss Rehana Akhtar for Applicants.

Habibur Rasheed for the State.

Rashid Ahmed Gabol for Respondent No. 1.

Date of hearing: 20th November, 2003.

2004 P Cr. L J 819

[Karachi]

Before Ghulam Nabi Soomro, J

MUHAMMAD SHAHID ---Applicant

versus

THE STATE---Respondent

Bail Application No. 1522 of 2003, decided on 10th March, 2004.

Criminal Procedure Code (V of 1898)---

----S. 392/34---Bail, grant of---Accused had remained in custody for more than two and eleven months and complainant had not implicated him in his evidence---Case of accused did not seem to be concluding in near future as not a single witness had been examined so far---State Counsel did not oppose bail application of accused---Accused was entitled to be released on bail, in circumstances.

Muhammad Irfan for Applicant.

Habibur Rashid for the State.

2004 P Cr. L J 846

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

SHAFIQUE AHMED ---Applicant

versus

THE STATE---Respondent

Criminal Bail No. 1392 of 2003, decided on 13th December, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss .409/420/468/471/34---Prevention of Corruption Act (II of 1947), S.5(2)---Bail, grant of--­Further inquiry---Accused being Manager of the Branch of Bank concerned, had processed documents in accordance with normal procedure and rules and had initially allowed release of 10 % of whole L.C. amount and then after receiving requisite advice from the Bank of the importer in Germany he released remaining amount after receiving Telex message in confirmation---Bank of which the accused was Manager being only the negotiating Bank, accused was not required to probe as to whether goods had actually been shipped or not---Accused, in ordinary course of business, seemed to have believed the customer to have produced genuine documents carrying valid entries---Role ,of, accused as to whether he connived in releasing the L.C amount on: forged documents, called for further enquiry---Accused was entitled to grant of bail.

Sardar Shere Afzal Khan for Applicant.

Khursheed Hashmi, 15.A.-G. for the State.

Date of hearing: 12th December, 2003.

2004 P Cr. L J 857

[Karachi]

Before Muhammad Roshan Essani, J

QADIR BUX BHATTI---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.28 of 2003, decided on 15th September, 2003.

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

----S. 561-A---Inherent powers of High Court---Scope---Powers given to High Court by S.561-A, Cr.P.C., were to be exercised sparingly looking towards the peculiar facts and circumstances of each case and not as a matter -of routine---Such powers could not be utilized to divert the ordinary course of Criminal Procedure Code, 1898---Inherent jurisdiction of High Court was not an alternate or additional jurisdiction, but same was to be exercised only in the interest of justice to redress grievances for which no other procedure was available--­Powers given by S.561-A, Cr.P.C. were not to be so utilized as to interrupt or divert the normal course of procedure as laid down in the relevant statutes---High Court would not in its discretionary jurisdiction short circuit the normal procedure of trial as provided by law---Powers under S.561-A, Cr.P.C. were not meant to stifle prosecution case as to interrupt or divert the ordinary course of criminal procedure as laid down in Procedural Statutes, but instead prosecution was to be allowed opportunity to prove it.

Shah Nawaz Junejo v. The State Criminal Miscellaneous Application No.224 of 2001; Muhammad Yaseen and others v. The State and another Criminal Miscellaneous Application No.135 of 1998; Agha Ghazanfar Ali v. Shaukat Ali and another 1996 SCMR 509; Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353; Altaf Hussain v. Abdul Samad and others 2000 SCMR 1945 and The State v. Asif Ali and another PLD 2001 SC 536 ref.

Qurban Ali H. Chohan for Petitioner.

Rasheed A. Qureshi, Asst. A.-G. for the State.

Date of hearing: 1st September, 2003.

2004 P Cr. L J 886

[Karachi]

Before Muhammad Afzal Soomro, J

SAMEER---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.25 of 2000, decided on 25th August, 2003.

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

----Arts. 3/4---Criminal Procedure Code (V of 1898), S.103--­Appreciation of evidence---Complainant Police Officer, not only was party to the case himself, but was also Investigating Officer and a witness in the case---Complainant had admitted in his cross-examination that maternal uncle of accused had moved an application against him and other police officials---Other prosecution witness who also was Police Official was working with the complainant---Presence of external witnesses, in circumstances was necessary as the requirement of law was that recovery of incriminating articles should be made in presence of two or, more respectable inhabitants of the locality and same would be defeated if the recoveries were made by police officials themselves and none of the witnesses was associated in the process of recovery---Alleged recovery, though had been made from a public place, but no attempt was made to associate any member of public in the recovery proceedings--­Police officials, no doubt, were as good witnesses as any other prosecution witnesses, but their evidence had to be seen in the peculiar circumstances of the case---Alleged recovered heroin, without being weighed at the spot was sent to Chemical Examiner, seventeen days after its recovery and said delay was quite unexplained---No evidence was available on record about the safe custody of parcel containing recovered powder as the official with whom parcel remained in custody and the person who took the parcel to the Chemical Laboratory, had not been examined---For giving benefit of doubt to accused, it was not necessary that there should be many circumstances creating doubts---If there was a circumstance which created reasonable doubt in the prudent mind about the guilt of accused, then accused would be entitled to the benefit not as a matter of grace and concession, but as a matter of right---There being no satisfactory basis for upholding conviction and sentence of accused, conviction and sentence recorded by Trial Court against accused were set aside and he was acquitted of charge.

Muhammad Arif v. The State 1993 PCr.LJ 1953; Rehmat Ali v. The State 1994 PCr.LJ 475; Shabbir Ahmed and others v. The State 1994 PCr.LJ 478; Tariq Pervez v. The State 1995 SCMR 1345; Nazir Ahmed alias Haji and another v. The State 1995 SCMR 1347; Muhammad Mureed v. The State 1995 PCr.LJ 1987; Mian Iftikhar Ahmed Sukhera v. Munawar Hussain Shah, M.I.C. Illaqa Magistrate Gulberg, Lahore and 3 others 1996 PCr.LJ 444 and Qutubuddin v. The State 1999 PCr.LJ 1572 ref.

(b) Criminal trial----

---- Benefit of doubt---For giving accused benefit of doubt, it was not necessary that there should be many circumstances creating doubt---If there was a circumstance which created reasonable doubt in a prudent mind about the guilt of accused, then accused would be entitled to the benefit of doubt not as a matter of grace and concession, but as a matter of right.

Fazlur Rehman for Appellant.

Sardaruddin for Respondent.

Date of hearing: 25th August, 2003.

2004 P Cr. L J 910

[Karachi]

Before Ghulam Nabi Soomro, J

Syed SHABHAT RAZA ZAIDI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.177 of 2004, decided on 18th March, 2004.

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

----S. 497(2)---Penal Code. (XLV of 1860), S.302---Bail, grant of--­Further inquiry---Record of prosecution file, in its tentative assessment, did not rule out the possibility of the case being one of suicide---Was yet to be determined at the time of trial when evidence would be recorded, whether deceased died as a result of suicide or she was killed by setting fire to her by accused---Provisions of S.497(2) being attracted in case, accused was entitled to bail.

Shahadat Awan for Applicant.

Habib Rasheed for the State.

2004 P Cr. L J 912

[Karachi]

Before Muhammad Mujeebullah Siddiqui and Anwar Zaheer Jamali, JJ

FAYYAZ ALI ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 129 of 2004, decided on 24th March, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(b)--Bail, grant of---Further inquiry---Recovery of Charas, though had been shown from accused an hour earlier to lodging of F.I.R., but names of Mashirs, who were stated to be police personnel had not been disclosed in the F.I.R.---Such lapse on the part of prosecution had created reasonable doubt about the authenticity of Mashirnama of recovery---Benefit of such lapse could be extended to accused even at bail stage---Case against accused needing further inquiry, he was entitled for bail.

Zafar A. Rajput for Applicant.

Anwar Ansari for the State.

2004 P Cr. L J 917

[Karachi]

Before Amir Hani Muslim, J

Dr. GHULAM MURTAZA and another---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Applications Nos.62 and 89 of 2003, decided on 8th September, 2003.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), S.224---Application for quashing of order---Accused had sought quashing of order passed by Sessions Judge whereby he had directed registration of case against them on ground of alleged abscondence from lawful custody of the Court--­Pursuant to direction of Sessions Judge case under 5.224, P.P.C. was registered against accused---Earlier, accused had approached Sessions Judge for anticipatory bail, who ordered notice, but no interim bail was granted to accused and matter was adjourned number of times and finally anticipatory bail applications were fixed before Sessions Judge---Accused appeared on the first call, but on the second call they were restrained from appearing before Sessions Judge on account of the fact that Court room of Sessions Judge was guarded by Police and they apprehended their arrest at the hands of Police as Additional Sessions Judge though had adjourned the matter at number of times but had not admitted the accused to interim bail---Accused by way of abundant caution sent statement/application to Sessions Judge through their relatives informing the Sessions Judge that accused were being restrained from appearing in Court as Police had guarded entire Court room---Sessions Judge dismissed application of accused for non-prosecution and ordered registration of case against them under S.224, P.P.C. which order had been sought to be quashed---Validity---Initially, if a notice was issued on bail before arrest application, in normal circumstances, accused was to be enlarged on interim bail---Several adjournments were granted by Additional Sessions Judge without passing interim orders which ex facie would amount to dismissing application for bail before arrest---Once it was brought to notice of Sessions Judge that accused apprehended their arrest on account of Police guarding the Court, Sessions Judge was obliged, in law, to depute any officer to ensure that fact and thereafter, should have granted interim bail to procure attendance of accused in Court---Dismissal of bail applications of accused for non-prosecutions was foreign to criminal law---Courts were bound to pass orders on merits, irrespective of absence of the party, whereas reasonable explanation for non-appearing in Court was given by accused---High Court allowing applications of accused set aside orders of Sessions Judge.

Sadiq Ali v. The State PLD 1966 SC 589 ref.

(b) Administration of justice----

----Duty of Judicial Officers and functions of Public Authorities--­Judicial Officers should behave in the manner as to restore the confidence of general public in Institutions instead of inviting unwarranted trouble to the litigants by passing orders which law did not recognize---Excessive use of lawful powers was itself unlawful---Powers conferred on the Public Authorities should not be pushed too far for such conferment would imply a restraint in operating those powers so as to exercise same justly and reasonably---Judicial Officers should not be negligent while exercising judicial powers.

Independent Newspapers Corporation (Pvt.) Ltd. v. Chairman Fourth Wage Board 1993 S C M R 1533 ref.

Sadiq Ali v. The State PLD 1966 SC 589 ref.

Ghulam Shabbir Memon for Applicant (in Criminal Miscellaneous Application No.62 of 2003).

Basharat Ahmed Jatt for Applicant (in Criminal Miscellaneous No.89 of 2003).

Anwar Ansari for the State.

Date of hearing: 8th September, 2003.

2004 P Cr. L J 925

[Karachi]

Before Muhammad Afzal Soomro, J

MURAD ALI Shah---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.984 of 2003, decided on 18th September, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Prevention and Control of Human Trafficking Ordinance (LIX of 2002), Ss.2(h), 3 & 4---Bail, grant of ---F.I.R.- revealed that accused was off loaded by F.I.A. Authorities while he was attempting to carry passengers abroad on the basis of false and forged travel documents against payment of huge amount for providing them employment thus he had committed offence of human trafficking---Court, at bail stage was to see as to whether prosecution had brought sufficient evidence for levelling such allegations inasmuch as allegations itself had shown that accused was at the most involved in taking out persons from Pakistan for the purpose of finding them employment overseas and that could not, by any stretch of imagination, be construed as human trafficking per definition of same given in S.2(h) of Prevention and Control of Human Trafficking Ordinance, 2002---Prima facie accused could not be connected with alleged crime for the reason that provisions of Ss.3 & 4 of Prevention and Control of Human Trafficking Ordinance, 2002 would not prevail upon as no evidence was available with prosecution for human trafficking and statement of accused before Police Officer could not be termed as confessional statement---Trial Court was yet to see the prosecution evidence that if an accused was charged under two different Statutes or Laws then he could only be tried for offence under the law which provided lesser sentence provided that offences were alike or similar in nature---Prosecution had failed to establish that accused prima facie was found guilty of offence punishable with death, imprisonment for life or ten years and no reasonable grounds existed to believe that accused was guilty of such an offence---Accused was entitled to grant of bail, in circumstances.

Muhammad Younus and another v. The State 2001 PCr.LJ 157 and 2001 PCr.LJ 794 ref.

Ejaz Khattak for Applicant.

Mehmood Alam Rizvi for the State.

Date of hearing: 18th September, 2003.

2004 P Cr. L J 932

[Karachi]

Before Amir Hani Muslim, J

MUHAMMAD HAROON and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.149, 150 and 151 of 2000, decided on 8th September, 2003.

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

----Ss. 420, 468, 471 & 489(b)(c)---Appreciation of evidence---No material was available before Trial Court which could reflect that tampering of the Prize Bonds was done by accused---Mere possession of tampered Prize Bonds itself, was hardly a ground to convict accused--­Trial Court in absence of such evidence which could connect accused with tampering, was not justified in convicting and awarding sentence to accused---Charge framed by Trial Court also appeared to be defective as nothing was on record to show that any permission was sought to prosecute accused in- non-cognizable offence---Prosecution had failed to discharge burden to prove guilt of accused beyond reasonable doubt and evidence was not sufficient to convict accused---Conviction and sentence recorded against accused by Trial Court were set aside and accused were acquitted of charge.

Ali Asghar v. The State 1992 PCr.LJ 1913 ref.

Allah Bachayo Soomro for Appellants.

Anwar H. Ansari for the State.

Date of hearing; 8th September, 2003.

2004 P Cr. L J 942

[Karachi]

Before Sarmad Jalal Osmany, J

RASHID ALI SHAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.34 of 2001, decided on 22nd September, 2003.

(a) Penal Code (XLV of 1868)-----

----Ss. 97, 100 & 102---Private defence, right of---Scope---Burden to prove---Burden of proving the right of private defence was not a heavy one upon accused and overall circumstances of the case were to be looked into for the purpose of coming to a conclusion whether such right was available to accused or not---Where a doubt had been created in the mind of the Court as to the likelihood of the existence of such right, benefit of such doubt must go to accused---Right of private defence in S.97, P.P.C. had provided that every person had a right to defence his own body and the body of any other person against any offence affecting the human body and also any movable or immovable property belonging to himself or any other person against any act of theft, robbery, mischief or criminal trespass or an attempt to do so---Section 100, P.P.C. had further provided that the right of private defence of the body extended to using death or any other harm to the assailant where the assault could -her reasonably cause the apprehension of death, grievous hurt, rape gratification of unnatural lust, kidnapping or abduction or wrongful confinement---Finally S.102, P.P.C. had provided that the right of private defence of the body would commence as soon as a reasonable apprehension of danger to the body would arise from an attempt or threat to commit the offence though the offence had not been committed; and would continue as long as such apprehension of danger to the body continued.

Zarid Khan v Gulsher 1972 SCMR 597; Ahmad Din v. Faiz Ahmad 1972 SCMR 549; Gulabat Khan v. The State PLD 1971 Pesh. 7; Sadiq v. The State PLD 1967 SC 356; Samoo v. The State PLD 1962 Kar. 495; Sultan Muhammad v. The Crown 1970 PCr.LJ 670; Muhammad Shareef v. The State 1992 PCr.LJ 1219; Ejaz Ahmed alias Gandhi v. State PLJ 1999 Lah. 306 ref.

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

----S. 302---Appreciation of evidence---Accused had also received two injuries with a hard and blunt substance which had been verified through medical evidence on the record, but no evidence was available to suggest whether said injuries were received by accused prior to the knife blows caused to the deceased by accused or afterwards and whether deceased had caused accused the injuries---Death of deceased occurred over a petty issue, which was non-payment of a few rupees to complainant by accused---Complainant and accused had been arguing about that matter for 10 to 15 minutes before deceased arrived on the scene---Prosecution had totally failed to explain injuries sustained by accused which had been proved through medical evidence---Prosecution witnesses, in fact had tried to suppress said injuries by denying a suggestion in cross ­examination that it was the complainant and deceased who had given said injuries to accused---Plea of private defence taken by accused when put in juxtaposition with prosecution case, had led to the conclusion that accused did receive injuries at the scene of crime in question--- Reasonable doubt in the facts and circumstances of the case, had been created regarding availability of right of private defence to accused, the benefit of which must go to accused---High Court allowing appeal, acquitted accused.

Shaukat H. Zubedi for Appellant

Fazal-ur-Rehman for the State.

Date of hearing: 11th December, 2002.

2004 P Cr. L J 974

[Karachi]

Before Nazim Hussain Siddiqui, C.J. and Ghulam Rabbani, J

AKHTAR MUHAMMAD ‑‑‑Petitioner

Versus

FEDERATION OF PAKISTAN through Federal Secretary Interior, Islamabad and 11 others‑‑‑Respondents

Constitutional Petition No. D‑1627 of 1999, heard on 18th January, 2000.

Constitution of Pakistan (1973)‑‑‑--

‑‑‑‑Art. 199‑‑‑Customs Act (IV of 1969), Ss.156(i)(14)(77)(81)(82) & 185‑A(6)‑‑‑Sales Tax Act (VII of 1990), Ss.3, 6, 33, 34 & 36‑‑­Constitutional petition‑‑‑Quashing of proceedings‑‑‑Accused/petitioner alongwith other co‑accused had been challaned before Special Judge (Customs & Taxation) to face trial under Ss.156(i)(14)(77)(81)(82) of Customs Act, 1969 and other provisions of Sales Tax Act, 1990‑‑­Prosecution at said initial stage, could not be stopped from proceedings against accused when serious allegations of cheating by fraud in taxes were against him‑‑‑Constitutional petition filed by petitioner/accused, was dismissed in circumstances.

Isaaq Ali Qazi and Aqueel Ahmed Abbasi for Petitioner.

Raja M. Iqbal for Respondent No.5.

Naimur Rehman, Dy.A.‑G. for the State.

Date of hearing: 18th January, 2000.

2004 P Cr. L J 989

[Karachi]

Before Muhammad Moosa K. Leghari and Khilji Arif Hussain, JJ

MUHARRAM‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 118 of 2004, decided on 26th February, 2004.

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

‑‑‑‑S. 497‑‑‑Control of Narcotic Substances Act (XXV of 1997), S.9(a)‑‑‑Bail, grant of‑‑‑Accused was arrested from near a shrine on having been found in possession of 95 grams of "Charas"‑‑‑No private person was associated to witness the recovery‑‑‑Enmity with the Excise police officials was alleged by the accused‑‑‑Offence being punishable with two years' R.I., case was pending before the Magistrate‑‑‑Accused was behind the bars for the last more than four months‑‑‑Bail was granted to accused in circumstances.

Khadim Hussain Solangi for Applicant.

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

2004 P Cr. L J 1023

[Karachi]

Before Muhammad Sadiq Leghari, J

FAROOQ SUMAR and others‑‑‑Applicants

Versus

THE STATE and others‑‑‑Respondents

Criminal Miscellaneous No.272 of 2002, decided on 24th October, 2003.

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

‑‑‑‑Ss. 173 & 190(1) (b)‑‑‑Submission of challan/report before Magistrate‑‑‑Powers of Magistrate on report submitted by Investigating Officer‑‑‑Magistrate could pass an order as he would think fit‑‑­Magistrate could agree or not with Investigating Officer and he could refuse to cancel the case and order further investigation or to take cognizance on the basis of said police report under S.190(1)(b), Cr.P.C.‑‑‑Order which Magistrate passed on report submitted by Investigating Officer under S.173, Cr.P.C. was an administrative order, but while passing such order, Magistrate was required to examine the report judicially and he had to act fairly, justly and honestly‑‑‑Report of Investigating Officer having been prepared on basis of material collected during investigation, justice and fairness required Magistrate to examine, that material and then pass order under S.173(3), Cr.P.C.

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

‑‑‑Ss. 561‑A & 173‑‑‑Penal Code (XLV of 1860), Ss.342/34/109‑‑­Quashing of proceedings‑‑‑Order passed by Magistrate on report submitted by Investigating Officer, did not indicate that Magistrate had considered material on record and found it to be sufficient for proceedings against accused‑‑‑Magistrate passed order for verification of the facts from the complainant and by so doing he assigned himself the role of Investigating Officer which was not the scope of S.173(3), Cr.P.C.‑‑‑After that Magistrate went beyond the scope of that order also and examined complainant and his three witnesses on oath and then passed another order and that also after hearing the advocate of complainant and Prosecuting Sub‑Inspector‑‑‑Magistrate referred to statements of complainant and his witnesses in the said order ignoring material collected during investigation and ordered registration of case against accused for offences under Ss.342/109, P.P.C.‑‑‑By the same order Magistrate also issued bailable warrants against accused‑‑‑Such exercise was entirely outside the scope of S.173(3), Cr.P.C.‑‑‑Order passed by Magistrate on report submitted by Investigating Officer under S.173, Cr.P.C. and exercise undertaken by him by way of recording statements of complainant and his witnesses and then passing another order, were all without lawful authority and were amenable to inherent jurisdiction of High Court under S.561‑A, Cr.P.C.‑‑Order passed by Magistrate and further proceedings were quashed in circumstances.

Bahadur and another v. The State and another PLD 1985 SC 62; Saith Jalal and two others v. The State 1972 SCMR 516; Hussain Ahmed v. Mst. Irshad Bibi and others 1997 SCMR 1503 and Soofi Abdul Qadir v. The State and others 2000 PCr.LJ 520 ref.

Mrs. Ismat Mehdi for Applicants.

Adnan‑ul‑Karim for the Complainant.

Fazal‑ur‑Rehman for Respondent.

Date of hearing: 2nd October, 2003.

2004 P Cr. L J 1192

[Karachi]

Before Wahid Bux Brohi, J

NIAZ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.S‑639 of 2003, decided on 20th January, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(1)‑‑‑Penal Code (XLV of 1860), Ss.324/ 337‑H(ii)/34 & 353‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑D‑‑‑Bail, refusal of‑‑‑Accused was said to have removed the key from the switch board, caught hold of prosecution witness from the neck and pulled him for the purpose of snatching the motorcycle, while other accused fired in the air and when police party reached the scene, fires were made at police also‑‑‑Empties of cartridges as well as bullets had been secured, which prima facie, had supported case of prosecution‑‑­Mere fact that case of attempt to commit robbery would not fall within the prohibitory clause of S.497, Cr.P.C., was no ground for grant of bail as an encounter was with police also and fires were made at police and complainant party‑‑‑Bail plea of accused, could not be sustained.

Muhammad Asif Mumtaz v. State 1999 PCr.LJ 283 and Muhammad Azeem v. State 1999 PCr.LJ 308 ref.

Amanullah Shaikh for Applicant.

Muhammad Ismail Bhuttoo for the State.

Date of hearing: 20th January, 2004.

2004 P Cr. L J 1222

[Karachi]

Before Muhammad Ashraf Leghari, J

Mir FAIZ MUHAMMAD TALPUR ‑‑‑ Applicant

Versus

THE STATE‑-‑Respondent

Criminal Bail Application No.525 of 2003, decided on 3rd November, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV‑of 1860), Ss.420, 469, 272, 273 & 471‑‑­Bail, refusal of‑‑‑Forged and fabricated voucher‑‑‑Fabricated letter with a forged stamp were recovered from possession of accused in presence of Mashirs‑‑‑Subsequently accused led the police to his house wherefrom accused. produced certain articles including stamps for preparing forged and fabricated documents‑‑‑Said material was also recovered in presence of same Mashirs‑‑‑Sufficient material was available on record to show prima facie that accused was involved in commission of offence‑‑­Offence with which accused stood charged was covered by prohibitory clause, contained under S.497(1), Cr.P.C.‑‑‑Bail plea of accused stood rejected, in circumstances.

Muhammad Aslam Bhat for Applicant.

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

2004 P Cr. L J 1246

[Karachi]

Before Wahid Bux Brohi, J

IRSHAD‑-‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.S‑611 of 2003, decided on 20th January, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860); Ss.302/147/148/149‑‑‑Bail, grant of‑‑‑Eye-witnesses whose names were mentioned in the F.I.R., were not examined under S.161, Cr.P.C. on the very day, but their statements were recorded after two months and eleven days‑‑­Mashirnama of place of occurrence displayed a different picture of scene describing two locations in respect of place of occurrence‑‑‑Lady residing in the adjoining house had also given a version about illicit terms between deceased and some ladies‑‑‑Said lady though was not an eye‑witness, but in view of said circumstances, version of said lady recorded under S.161, Cr.P.C. could not altogether be ignored, because bail plea was to be examined in the light of material collected during investigation‑‑‑Delay in recording of statements under S.161, Cr.P.C. of eye‑witnesses, was of material significance for the purpose of bail‑‑‑State Counsel had also conceded to grant of bail‑‑‑Accused was admitted to bail, in circumstances.

Muhammad Shah v. State 1993 SCMR 550 and Wali Muhammad v. State 1982 PCr.LJ 798 ref.

Sardar Khan Lashari for Applicant.

Muhammad Ismail Bhutto for the State.

Date of hearing: 20th January, 2004.

2004 P Cr. L J 1261

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

YOUSIF ALI‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.202 of 1993, decided on 26th September, 2003.

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

‑‑‑‑S. 13(d)‑‑‑Appreciation of evidence‑‑‑Prosecution had examined two witnesses, one Mashir and other Investigating Officer ‑‑‑Mashir did not support case of prosecution and he disowned his signature on Mashirnama‑‑‑Prosecution did not declare the Mashir hostile‑‑‑Statement of Investigating Officer, who was complainant, had shown that accused led police and Mashirs to his house and produced an unlicensed gun in presence of Mashirs‑‑‑Statement of accused was neither supported nor corroborated by Mashirs‑‑‑Mashirs had falsified stand taken by Investigating Officer and prosecution had not examined co‑Mashir‑‑‑Case of prosecution being highly doubtful, accused was entitled to benefit of doubt‑‑‑Conviction and sentence awarded to accused by Trial Court, were set aside and accused was acquitted of charge and was set at liberty.

Khawaja Naveed Ahmed for Appellant.

Jawed Akhtar for the State.

Date of hearing: 26th. September, 2003.

2004 P Cr. L J 1278

[Karachi]

Before Wahid Bux Brohi, J

BASHIR and 2 others‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.439 of 2003, decided on 12th January, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 129‑‑‑Bail, refusal of‑‑‑Application for‑‑‑Accused were nominated in F.I.R. and direct allegation was against them that they snatched cattle on the point of arms after giving blows to nephew of complainant and his son and after dacoity they were captured alongwith property robbed by them‑‑‑Prima facie, case against accused could be considered within meaning of Art. 129 illustration (a) of Qanun‑e‑Shahadat, 1984‑‑­Premature to hold that the culprits were simply taking away the stolen property‑‑‑Accused were produced at the Police Station alongwith their arms and stolen property‑‑‑Bail plea of accused could not be sustained.

Nawab Khan v. State 1986 PCr.LJ 2854 and Rab Nawaz v. State 1988 PCr.LJ 1269 ref.

Nadeem Ahmed Tonyo for Applicants.

Muhammad Iqbal Mahar for the Complainant

Mushtaq Ahmed Kourejo for the State

Date of hearing; 12th January, 2004.

2004 P Cr. L. J 1283

[Karachi]

Before Wahid Bux Brohi, J

MAKORO and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.460 of 2003, decided on 21st January, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(4)‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Most important evidence in case was of alleged victim, but she had been joined as an accused in the case‑‑‑Affidavit attributed to alleged victim had, been filed in Court which had gone uncontroverted‑‑‑Case was dependant on evidence of complainant and his brother whose names transpired as accused in other case‑‑‑All said circumstances would require proof at the trial, but for the time being at least in the backdrop of said circumstances, a case of further inquiry was made out‑‑‑Accused were admitted to bail, in circumstances.

Shamsuddin N. Kobhar for Applicants.

M.I. Bhutto for the State.

Date of hearing: 21st January, 2004.

2004 P Cr. L J 1288

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

MUHAMMAD ABDUL SADIQ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Bail Application No.779 of 2003 decided on 13th August, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.419/420/511/34‑‑‑Bail, grant of‑‑‑Accused was in custody since his arrest‑‑‑Offence alleged against accused being an attempt to commit offences punishable within meaning of Ss.419 & 420, P.P.C., would carry maximum punishment for 3‑1/2 years on each count out of which accused had already remained in jail for a period of more than 7 months and trial had made no progress‑‑‑Fair and expeditious trial was right of an accused and bail could not be withheld as punishment‑‑‑Accused was admitted to bail, in circumstances.

Younas v. The State 2000 PCr.LJ 721; Saeed Ahmed v. The State 1996 SCMR 1113 and Muhammad Saeed Mehdi's case 2002 SCMR 282 ref.

Khaleeq Ahmad for Applicant.

Khurshid Hashmi, D.A.‑G. and Javed Akhtar for the State.

1. P Cr. L J 1304

[Karachi]

Before Shabbir Ahmed, J

ASHFAQ AHMED KHAWAJA‑‑‑Appellant

Versus

THE STATE‑‑‑ Respondent

Special Criminal Appeal No.54 of 1997, decided on 12th August, 2002.

Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 156(1)(8)‑‑‑Appreciation of evidence‑‑‑Role assigned to accused was that he was found entering the Departure Lounge of Airport alongwith co‑accused‑‑‑Entrance in Departure Lounge itself was not an offence, more particularly when accused himself was an employee of Airport Security Force, unless his complicity with co‑accused, in the crime was established‑‑‑Mere entrance of accused at the same time when co‑accused was entering could not be of any penal consequences‑‑­Confessional statement of co‑accused had been discarded by Special Judge‑‑‑Prosecution having failed to prove charge against accused, he was entitled to acquittal‑‑‑Conviction and sentence recorded by Special Judge, were set aside, in circumstances.

Rana, M. Shamim for Appellant.

Nemo for the State.

Date of hearing: 6th August, 2002.

2004 P Cr. L J 1321

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

GHULAM ABBAS‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.646 of 2003, decided on 27th April, 2004.

(a) 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)‑‑‑Constitution of Pakistan (1973), Art.9‑‑‑Bail in offences against the society and the Country for money‑‑­Guidelines‑‑‑People commit offences detrimental to the society and the country for money‑‑‑Some of the holders of public offices commit or facilitate commission of offences for monetary consideration‑‑‑Courts' approach in such scenario should be reformation oriented with the desire to suppress the evil‑‑‑Courts, in order to achieve this objective, must apply strictly the laws designed and intended to eradicate the said national evils, but without causing any miscarriage of justice and overlooking Article 9 of the Constitution relating to the fundamental right which guarantees life and liberty of every person‑‑‑Life, inter alia, includes the right to have access to a fair and independent judicial forum for redress‑‑‑A balance has to be struck between national and individual interest or right.

Imtiaz Ahmed v. State PLD 1997 SC 545 ref.

(b) 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, refusal of‑‑‑Accused being a Store‑keeper was entrusted with the protection of public property and he, according to the inquiry report, was actively involved in the embezzlement of the store items‑‑‑By having remained an absconder for a period of three years accused had further failed in his duty to cooperate in the inquiry/investigation and his conduct, prima facie, did not show him an innocent person as alleged‑‑‑Offence alleged against the accused being a white collar crime against the society and nation, he was not entitled to concession of bail‑‑‑Bail was declined to accused accordingly.

Imtiaz Ahmed v. State PLD 1997 SC 545 and Zeeshan Kazmi v. State PLD 1997 SC 267 ref.

Hidayatullah A. Abbasi for Applicant.

Ahmed Ali Shaikh, Standing Counsel for D.A.‑G. for the State.

2004 P Cr. L J 1347

[Karachi]

Before Ghulam Nabi Soomro, J

MUHAMMAD ARIF‑‑‑Applicant

versus

TIE STATE‑‑‑Respondent

Criminal Bail Application No.637 of 2001, decided on 9th January, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.324/353/392/34‑‑‑Bail, grant of‑‑‑ Broad‑daylight incident‑‑‑Though exchange of fire was alleged, but no injury was received by any of the parties‑ ‑‑Nothing was secured from the possession of accused, who was shown to have been arrested on the spot‑‑‑Case was of ineffective firing‑‑‑Accused was admitted to bail, in circumstances.

PLD 1972 SC 277 and 19777 SCMR 326 ref.

Shahdad Awan for Applicant.

Muhammad Ismail Memon for the State.

2004 P Cr. L J 1385

[Karachi]

Before Zahid Kurban AM, J

SAJJAN ‑‑‑ Applicant

versus

THE STATE‑‑‑Respondent

Crl. Bail Application No.507 of 2003, decided on 20th October, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV 6T 1860), Ss.324/34‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Names of accused were not mentioned in F.I.R. nor description of their features or their stature was given‑‑‑Accused had not been identified and their identification test took place two‑ months after incident‑‑‑Alleged identification of accused was based on flashing of torch light which was a weak form of identification ‑‑‑Co‑accused had been granted bail‑‑‑Case against accused being of further inquiry, they were admitted to bail.

Muhammad Akbar v. The State 1983 PCr.LJ 1677; Ayoob v. The State 1994 PCr.LJ.1057; Hussain Ahmed v. The State 1996 PCr.LJ 130; Gulab v. The State 1974 PCr.LJ 74; Liaquat Ali v. The State 1986 PCr.LJ 2317; Shafique Ahmed v. The State 2002 PCr.LJ 518; Riaz v. The State 1998 PCr.LJ 1613 and Abdul Khalique v. The State 1996 SCMR 1553 ref.

Assardass D. Hemnane for Applicant.

Ubedullah Malano for the Complainant.

Mumtaz Ali Siddiqui for the State.

Date of hearing: 20th October, 2003. '.

2004 P Cr. L J 1391

[Karachi]

Before Muhammad Ashraf Leghari, J

MUHAMMAD RAFIQ‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Applications Nos.567 of 2002 and 71 of 2003, decided on 3rd November, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.377‑‑‑Bail, refusal of‑‑‑Name of accused transpired in F.I.R. and he had been ascribed specific role of committing sodomy upon victim and so also causing cigarette scorches‑‑­Accused was armed with weapons and not only had forcibly committed sodomy, but also had robbed victim of Rs.2000‑‑‑Roznamcha entry was recorded by police wherein though fact of sodomy was not disclosed, but in the matter when honour of a person or family was involved, man whose honour or dignity was at stake, would take considerable time to take a final decision in the matter‑‑‑No much importance to time factor or such type of minor discrepancies could be given‑‑‑Doctor who examined victim had opined that anal intercourse had been committed on victim‑‑‑Board of Doctors had concurred with report of the Medical Officer‑‑‑Accused could not prove that he had been involved in the case due to enmity‑‑‑Offence with which accused had been charged, was covered by prohibitory clause of S.497, Cr.P.C.‑‑‑Ample evidence was available on record to connect accused with commission of crime and no mala fides apparently appeared on the record‑‑‑Act of accused appeared to be cruel and brutal‑‑‑Bail application of accused was dismissed, in circumstances.

Muharram G. Balouch for Applicant.

Rasheed. A. Qureshi; Asstt. A.‑G. for the State.

Anwar A. Khan for the Complainant.

Date of hearing: 3rd November, 2003.

2004 P Cr. L J 1397

[Karachi]

Before Muhammad Ashraf Leghari, J

HUSSAIN BUX alias BABU CHACHAR and another‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail Applications Nos.672 and 673 of 2003, decided on 19th December, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), Ss.449, 451, 452‑‑‑Interim pre­-arrest bail, confirmation of‑‑‑Allegations against accused in the F.I.R. were based on hypothesis and conjectures‑‑‑No overt act had been attributed to accused in the F.I.R.‑‑‑Accused persons simply trespassed in the house of complainant and were found standing near the cot of a female‑‑‑Accused neither had outraged the modesty of said lady nor any other allegation was levelled against them that they tried to commit any other criminal offence‑‑‑Application of S.449, P.P.C. was still in mystery and it was yet to be established by prosecution that offence against accused fell under Ss.449, 451 & 452, P.P.C.‑‑‑Section 451 & 452, P.P.C. were not covered by prohibitory clause of S.497, Cr.P.C.‑‑‑Such type of allegations could easily be levelled in F.I.R. against any person‑‑­Would not be proper, in circumstances to keep person behind the bars without any substantive allegations, of criminal act against them‑‑­Apparently registration of F.I.R. against accused was for some ulterior motives and for those reasons arrest of accused would be mala fide‑‑­Interim bail granted earlier to accused was confirmed on same terms and conditions.

Shafi Muhammad Memon for Applicants.

Rasheed Ahmed Qureshi, Asstt. A.‑G.

2004 P Cr. L J 1422

[Karachi]

Before Muhammad Afzal Soomro, J

ASIF---Applicant

Versus

THE STATE---Respondent

Crl. Bail Application No. 1102 of 2003, decided on 6th October, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.392/34---Bail, grant of--­Accused was arrested after 9 days of alleged occurrence and identification test was held after about 22 days---Name of accused was not mentioned in the F.I.R.---Accused was admitted to bail, in circumstances.

Dr. Behram Khan v. Naseer Ahmed alias Bacha Khan PLD 1986 Quetta 72; Gulzar and 4 others v. The State 1987 MLD 1830; Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Tahir Abbas v. The State 2003 SCMR 426 ref.

Abdul Naeem Memon for Applicant.

Sardruddin Qureshi for the State.

2004 P Cr. L J 1431

[Karachi]

Before Anwar Zaheer Jamali, J

ATTA MUHAMMAD---Applicant

Versus

THE STATE- -Respondent

Crl. Bail Application No. 1478 of 2003 decided on 19th January, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 395---Bail, grant of--­Further inquiry---Accused was not nominated in F.I.R. and no identification test of accused had been held .by police---Articles recovered from accused were of general nature---Case of accused needing further inquiry as to his guilt, he was granted bail.

Abdul Naeem Memon for Applicant.

Sardaruddin Qureshi, A.A.-G. Sindh.

2004 P Cr. L J 1438

[Karachi]

Before Khilji Arif Hussain, J

MUHAMMAD ASLAM and another---Applicants

Versus

THE STATE---Respondent

Cr. B. Appln. No.737 of 2002, decided on 24th June, 2003.

Criminal Procedure Code (V of 1898)--

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, refusal of--­Mere delay in recording statements of prosecution witnesses under S.161, Cr.P.C. by itself was not sufficient for admitting accused to bail, especially when eye-witnesses had, given reasons for recording their statements with such a delay---Accused led police party for recovery of weapons the very day when they were arrested---Accused were arrested two days after lodging of F.I.R, and recoveries were effected from them on their pointation---Blood-stained clothes were also recovered by police---As trial was likely to be concluded, bail application was dismissed with direction to Trial Court to conclude the trial within specified period.

Fiaz Ahmed v. State 1999 YLR 1077; Malik Muhammad Iqbal v. Syed Abid Hussain NLR 1997 Cr.LJ 569; Abdul Ghani v. State 1994 MLD 862; State v. Maqbool Ahmed 1983 PCr.LJ 1140; Tariq v. State 1984 PCr.LJ 1967; Asfandyar Wali v. State PLD 1978 Pesh. 38; Muhammad Khan v. Maula Bakhsh 1998 SCMR 570; Ghulam Rasool v. State 1984 PCr.LJ 2702; Ghulam Muhammad v. State 1997 MLD 1550; Imtiaz Ahmed v. State PLD 1997 SC 545 and Muhammad Nawaz v. State 2002 SCMR 1381 ref.

S. Hamad Ali Shah for Applicants.

S. Madad Ali Shah for the Complainant.

Masood A. Noorani, Addl. A.-G.

2004 P Cr. L J 1444

[Karachi]

Before S. Ali Aslam Jafri, J

MUHAMMAD ALI ---Appellant

Versus

THE STATE---Respondent

M. A. No.40 of 2001 in Crl. Appeal No. 199 of 2000, decided on 30th. January, 2001.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.320 & 337-A(i)---Suspension of sentence---Suspension of sentence had been prayed till the disposal of appeal against judgment of Trial Court by accused on the ground that during trial no expert had been examined to establish whether it was the fault of accused or the driver of bus in which injured and deceased were travelling---Further contention was that two injured witnesses who were examined before Trial Court, had not implicated accused to be an accused in the case---State counsel had not opposed the prayer of accused for suspension of sentence---Conviction and sentence awarded to accused by Trial Court was suspended till decision of appeal.

Hussain v. The State PLD 1995 Kar. 209 and Abdul Hameed v. Muhammad Abdullah and others 1999 SCMR 2589 ref.

Madad Ali Shah Syed for Appellant.

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

2004 P Cr. L J 1447

[Karachi]

Before Abdul Inam, J

MUHAMMAD BOOTA---Applicant

Versus

ABDUL HAMID and 3 others---Respondents

Cr. Misc. Application No.25 of 1993, decided on 3rd March, 1998.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/326/325/147/148/149---Bail, grant of--Factor which weighed with Trial Court for grant of bail to accused was that counter-version of the incident and question as to who was the aggressor, could only be determined at the trial--­Considerations in grant of bail to accused were altogether different than in a case where cancellation of bail was sought by complainant---Unless exceptionally strong grounds, such as abuse/misuse of concession of bail existed for cancellation of bail, High Court would not interfere with order of grant of bail passed by Trial Court---Accused, in the present case were availing concession of bail and no allegation was against them in respect of misuse of concession of bail---Accused, in circumstances had rightly been enlarged on bail by Trial Court---Application filed by complainant for cancellation of bail being without substance, was dismissed.

1992 SCMR 501; PLD 1984 SC 56; 1996 SCMR 1845; 1997 SCMR 251; 1997 SCMR 251; 1992 SCMR 1418; 1998 SCMR 1129; PLD 1989 SC 347 and PLD 1996 SC 241 ref.

Abdul Jabbar for the Applicant.

Syed Madad Ali Shah for Respondents.

Agha Khuda Bux Khan for the State.

2004 P Cr. L J 1455

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

NOOR AHMED and 3 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 148 of 2000 decided on 24th May, 2004.

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

----S. 302/34---Motive---Principles---Motive in every case is not required to be proved---Where, however, a motive is alleged and evidence is led thereon by one or both the sides, then it is incumbent on the Court to examine whether there is sufficient motive for the ,commission of the offence or for false implication of the accused.

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

----S. 302/34---Appreciation of evidence---Lodging of F.I.R. within six hours of the incident was natural in circumstances and led to no adverse inference---Presence of eye-witnesses with the deceased at the time and place of occurrence was established who had supported the prosecution case on material points---Inconsistencies in the statements of eye­witnesses were not material, which were bound to occur in the natural course as the same were recorded after more than eight years of the incident---Unimpeachable ocular testimony was fully corroborated by the medical evidence---Promptly lodged F.I.R. contained the material prosecution facts including the specific role attributed to each accused---Motive for the occurrence had been proved---Exclusion of the evidence of recovery of crime-empties from the spot and the hatchet from one accused, had no adverse effect on the prosecution case--­Conviction and sentence of each accused were upheld in circumstances.

Wajid Ali Khan v. Sheikh Murtaza Ali 2003 SCMR 1419; Yousif v. The State PLD 1988 Kar. 521; Syed Saeed Muhammad Shah v. The State 1993 SCMR 550; Sardar Baig v. The State 1978 PCr.LJ 690; Muhammad Shafi and another v. State PLD 1968 Lah. 869; Ashiq Hussain alias Muhammad Ashraf v. The State PLD 1994 SC 879; The State through Advocate-General, Province of Balochistan, Quetta v. Jamil Iqbal PLD 1974 Quetta 28 and Amir Zaman v. Mehboob and others 1985 SCMR 685 ref.

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

----S. 302/34---Appreciation of evidence---Discarding of a particular category of evidence---Effect---Exclusion or discarding of a particular category of evidence or an aspect of evidence as unreliable or unworthy of credence only means that it does not conform to the standard of evidence required for safe administration of justice.

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

----S. 302/34---Appreciation of evidence---Criterion---Main criterion orgy acquittal of accused is the satisfaction of the Court itself, but such satisfaction should always be objective and not subjective.

Syed Saeed Muhammad Shah v. The State 1993 SCMR 550 ref.

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

----S. 302/34---Appreciation of evidence---Contradictions and minor inconsistencies---Distinction---Statements either destructive of each other or totally different being incapable to reconcile each other, are contradictory statements which shall always lead to the benefit of accused persons entailing their acquittal---However, variance in the testimony of witnesses or inconsistencies on immaterial points shall not lead to such conclusion.

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

----S. 302/34---Appreciation of evidence---Minor inconsistencies--­Perceptions, faculties of memory and retention and the capability of narrating the details of an incident, differ from person to person---Minor inconsistencies and variances in evidence on immaterial points, therefore, are to be ignored.

Aijaz Ahmed Shaikh for Appellants Nos. 1 and 2.

Allah Bachayo Soomro for Appellants Nos.3 and 4.

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

Dates of hearing: 16th and 20th April, 2004.

2004 P Cr. L J 1479

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

SANGO and another---Appellants

Versus

THE STATE---Respondent

Cr. Appeal No.4 of 2000, decided 28th May, 2004.

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

----S. 302---Appreciation of evidence---Circumstantial evidence--­Value---Conviction---Conviction and even death sentence can be passed on circumstantial evidence provided all circumstances constitute a continuous chain without any link missing with the combined effect of the guilt of the accused having been established beyond any shadow of doubt.

Muhammad Amjad v. The State PLD 2003 SC 704 ref.

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

----Ss. 302/34 & 201/34---Appreciation of evidence---Prosecution case simply rested on circumstantial evidence---Dead body of the deceased was recovered on the pointation of one accused and the incriminating amount alongwith chits of accounts was recovered at the instance of other accused---Said places of recovery were not known to the Investigating Officer and the witnesses and the discoveries at the pointation of the two accused had led to the irresistible conclusion that both of them were involved in the murder of the deceased---Trial Court was fully justified in convicting and sentencing the accused on the basis of aforementioned discoveries---Appeal was dismissed accordingly.

Sodho and others v. The State SBLR 2002 Sindh 1522; Shaikh Muhammad Amjad v. The State 2002 PCr.LJ 1317; Mst. Gallan v. The State 1999 PCr.LJ 647; Ketab Ali v. The State 1970 PCr.LJ (Dacca) 415; Fareed Muhammad v. The State PLD 1959 Pesh. 12; Allahditta v. The State PLD 1958 SC 290; Bill Moria v. The State PLD 1958 SC 313; Faiz Ahmed v. The State PLD 1960 SC 8; Abdul Samad v. The State PLD 1964 SC 167 and Muhammad Amjad v. The State PLD 2003 SC 704 ref.

Moharram G. Baloch, Allah Bachayo Soomro and Ayaz Hussain­Tunio for Appellants.

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

Date of hearing: 26th April, 2004.

2004 P Cr. L J 1492

[Karachi]

Before Ghulam Nabi Soomro and Sarmad Jalal Osmany, JJ

FAHIM-UL-HAQ and others---Appellants

Versus

THE STATE---Respondent

Cr. Appeals Nos. 62 of 1996, 202 and 208 of 1995, decided on 6th April, 2004.

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

----Ss. 302/34, 307/34 & 394---Appreciation of evidence---Five prosecution witnesses had identified both the accused in the identification parade conducted by the Magistrate and had also correctly picked them out before the Trial Court ---Accused according to eye-witnesses had entered into the house on the night of incident, remained there for over two hours, committed robbery of various articles and finally shot at all the eight male members of the family killing seven of them in cold-­blood---Eye-witnesses due to the heinous nature of the crime would have retained a photographic memory of the accused for all times to come and the accused being unknown to them they had no reason for their false implication---Ocular testimony, thus, was believable which was corroborated by the report of the Fingerprint Bureau according to which the finger prints lifted from the scene of crime had matched with those of the accused---Robbed articles were also recovered from the flat of the accused---Pistol recovered from one accused had matched with the crime-empties secured from the spot---Convictions and sentences of accused were upheld in circumstances.

Saeed Muhammad Shah v. The State 1993 SCMR 550; Muhammad Sadiq v. Muhammad Sarwar 1979 SCMR 214; Ayab Masih v. The State PLD 2002 SC 1048; Said Ahmed v. Zammarrud Hussain 1981 SCMR 795; Maqbool Hussain v. The State PLD 1960 SC 382; Joygun Bibi v. State PLD 1960 SC 313; Shabiul Hasan v. State PLD 1991 SC 898; Wazir v. The State PLD 1960 Kar. 674; Syed Abid Hussain Shah v. The State 1983 PCr.LJ 882; Amanatullah v. The State 1986 PCr.LJ 523; Fatch Shah v. Muhammad Hassan 1983 PCr.LJ 1893; State v. Lal Muhammad PLD 1973. Pesh. 135; Sahib Dad v. The State 1993 PCr.LJ 1778; Ziaullah Khan v. The Government of Punjab PLD 1989 Lah. 554; Government of Punjab v. Ziaullah Khan 1992 SCMR 602; Ah9an Ali v. The District Judge PLD 1969 SC 167; Ch. Khan Ali v. The State 1969 SCMR 42; Muhammad Afzal v. The State 1982 SCMR 129; Khawand Bux v. The State 1997 PCr.LJ 280; Solat Ali Khan v. The State 2002 SCMR 820; Maj. (Retd.) Tariq Mehmood v. The State 2002 SCMR 1493; Gokal Chand v. Emperor AIR 1934 Lah. 477; Hakim All v. the State PLD 1960 (W.P.) Lah. 31; Muhammad Sabir v. The State 1989 PCr.LJ 2047; Akhtar Ali v. The Crown PLD 1954- Lah. 210; Barendra Kumar Ghosh v. Emperor AIR 1925 PC 1; Fazal v. The State 1970 Cr.LJ 1073; Pir Mazhar-ul-Haq v. The State 1992 PCr. LJ 1910; The State v. Zahid Hussain 1990 SCMR 164; Abdul Ghaffar v. Mst. Mumtaz PLD 1982 SC 88; Haji Muhammad Ashraf v. The State 1999 MLD 330; Khan Muhammad v. The State 1999 SCMR 1818; Raza Muhammad v. The State PLD 2002 SC 56; Atir Zaman v. The State 2003 PCr.LJ 35; Major (Rtd.) v. The State 2002 SCMR 1493; Ahmed Hassan v. The State 2001 SCMR 505; Doulat Khan v. The State 1998 MLD 944; Birey Singh v. The State AIR 1953 All. 735; Muhammad Karim v. The State PLD 1976 Pesh. 135; Sain Gull Wali Khan v. The State 2003 PCr.LJ 234; Hazrat Bilal v. The State 2000 PCr.LJ 865; Muhammad Karim v. The State 1998 PCr.LJ 1543; Khanzada Mir v. The State PLD 1979 Pesh. 215; Shahnawaz v. The State PLD 1986 FSC 245; Muhammad Hussain v. The State PLD 1986 Lah. 34; Muhammad Ashraf v. The State 1989 PCr.LJ 1803; Haq Nawaz v. The State 2000 SCMR 785; Muhammad Aslam v. The ' State 1972 SCMR 194; Mohabbat Ali v. The State 19&5 SCMR 662 and Waqar Zaheer v. The State PLD 1991 SC 447 ref.

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

----S. 164---Judicial confession---Lapses of Magistrate recording the confession---Effect---Delay or lapses made on the administrative side by the Magistrate regarding the confession may not be fatal to its evidentiary value, provided the Court is satisfied that such lapses have not in any way adversely affected the voluntary and truthful nature of the confession.

Haq Nawaz v. The State 2000 SCMR 785 and Tariq Mahmood v: The State 2002 SCMR 1493 ref.

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

----Ss. 302/34, 307/34, 394 & 109/34---Appreciation of evidence--­Confessional statements of the accused which suffered from many infirmities were kept out of consideration---Only link between the crime in question and the recoveries effected at the behest of accused were their confessional statements as well as those of co-accused---Said confessional statements having not inspired confidence, accused could not be connected with the recoveries of the robbed articles---Accused were acquitted do circumstances---Case of accused who was an absconder and had been convicted after trial in absentia by the Trial Court, was at par with the case of co-accused who had been acquitted and he was consequently also acquitted.

Saeed Muhammad Shah v. The State 1993 SCMR 550; Muhammad Sadiq v. Muhammad Sarwar 1979 SCMR 214; Ayab Masih v. The State PLD 2002 SC 1048; Said Ahmed N Zammarrud Hussain 1981 SCMR 795; Maqbool Hussain v. The State PLD 1960 SC 382; Joygun Bibi v. State PLD 1960 SC 313; Shabiul Hasan v State PLD 1991 SC 898; Wazir v. The State PLD 1960 Kar. 674; Syed Abid Hussain Shah v. The State 1983 PCr. LJ 882; Amanatullah. The State 1986 PCr.LJ 523; Fateh Shah v. Muhammad Hassan 1983 PCr.LJ 1893; State v. Lal Muhammad PLD 1973 Pesh. 135; Sahib Dad v. The State 1.993 PCr.LJ 1778 Ziaullah Khan v. The Government of Punjab PLD 1989 Lah. 554; Government of Punjab v. Ziaullah Khan 1992 SCMR 602; Ahsan Ali v. The District Judge PLD 1969 SC 167; Ch. Khan Ali v. The State 1969 SCMR 42; Muhammad Afzal v. The State 1982 SCMR 129; Khawand Bux v. The State 1997 PCr.LJ 280; Solat Ali Khan v. The State 2002 SCMR 820: Maj (Retd.) Tariq Mehmood v. The state 2002 SCMR 1493; Gokal Chand v. Emperor AIR 1934 Lah. 477; Hakim Ali v. the State PLD 1960 (W.P.) Lah. 31: Muhammad Sabir v. The State 1989 PCr.LJ 2047; Akhtar Ali v. The Crown PLD 1954 Lah. 210; Barendra Kumar Ghosh v Emperor AIR 1925 PC 1; Fazal v. The State 1970 Cr.LJ 1073; Pir Mazhar-ul-Haq v. The State 1992 PCr.LJ 1910; The State v. Zahid Hussain 1990 SCMR 164; Abdul Ghaffar v. Mst. Mumtaz PLD 1982 SC 88; Haji Muhammad Ashraf v. The State 1999 MLD 330; Khan Muhammad v. The State 1999 SCMR 1818; Raza Muhammad v. The State PLD 2002 SC 56; Atir Zaman v. The State 2003 PCr.LJ 35; Major (Rtd.) v. The State 2002 SCMR 1493; Ahmed Hassan v. The State 2001 SCMR 505; Doulat Khan v The State 1998 MLD 944; Birey Singh v. The State AIR 1953 All 735; Muhammad Karim v. The State PLD 1976 Pesh. 135; Sain Gull Wali Khan v. The State 2003 PCr.LJ 234 Hazrat Bilal v. The State 2000 PCr.LJ 865; Muhammad Karim v. The State 1998 PCr.LJ 1543; Khanzada Mir v. The State PLD 1979 Pesh. 215; Shahnawaz v. The State PLD 1986 FSC 245; Muhammad Hussain v. The State PLD 1986 Lah.34; Muhammad, Ashraf v. The State 1989 PCr.LJ 1803; Haq Nawaz v. The State 2000 SCMR 785; Muhammad Aslam v. The State 1972 SCMR 194; Mohabbat Ali v. The State 1985 SCMR 662 and Waqar Zaheer v. The State PLD 1991 SC 447 ref.

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

----Ss. 302/34, 307/34, 394 & 109/34---Appreciation of evidence---Rule of consistency applicable to non-appealing accused---Where no appeal has been filed by a co-accused and the other accused placed in the same circumstances have been acquitted, the non-appealing accused can also be acquitted.

Muhammad Aslam v. The State 197.2 SCMR 194; Mohabbat Ali v. The State 1985 SCMR 662 and Waqar Zaheer v. The State PLD 1991 SC 447 ref.

M.A. Kazi for Appellants (in Cr. Appeal No.202 of 1995).

Azizullah Shaikh for Appellants (in Cr. Appeal No.202 of 1995).

Mian Khan for Appellant (in Cr. Appeal No.208 of 1995).

M.A. Kazi for Appellant (in Cr. Appeal No.62 of 1996).

Muhammad Sarwar Khan, Addl. A.-G. assisted by S. Nasir Hussain Jafferi for the State.

Dates of hearing: 26th February, 5th March, 16th, 17th, 18th, 23rd, 30th April, 2nd May, 19th August, 9th, 23rd September, 14th, 21st October, 18th November, 16th December, 2002, 10th January, 2003 and 22nd March, 2004.

2004 P Cr. L J 1518

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

Naik MUHAMMAD YAQOOB---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.364 of 2002, decided on 4th May, 2004.

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

----S. 302(b)---Appreciation of evidence---Ocular testimony inspired confidence and statements of eye-witnesses were believable ---Eye­witnesses had no motive to falsely implicate the accused to the heinous crime---Identification test was not essential in the case as the prosecution witnesses had not only ample opportunity to have seen the face of the accused very clearly but were also able to remember his face and the accused had been arrested on the pointation of the complainant---Record did not indicate that the accused had been provoked at the time of incident, nor any such plea had been taken by him during his trial---No case of sudden and grave provocation was, thus, made out in favour of accused---Conviction and sentence of accused were upheld in circumstances.

Federation of Pakistan v. Gul Hassan Khan PLD 1989 SC 633 ref.

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

----S. 302(c)---Provocation---Connotation---Provocation is a psychological matter and it mainly consists of three elements, namely, the act of provocation, the loss of self-control both actual and reasonable and retaliation proportionate to the provocation.

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

----S. 302(c)---Conditions for bringing the case of accused under the ambit of provocation: (i) deceased must have given provocation to the accused, (ii) provocation must be grave, (iii) provocation must be sudden, (iv) accused due to said provocation should have been deprived of his power of self-control and killed the deceased during the continuance of the deprivation of power of control and (v) the accused must have caused the death of the person who had given the provocation.

Federation of Pakistan v. Gul Hassan Khan PLD 1989 SC 633 ref.

Nazar Abbas Malik for Appellant.

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

Date of hearing: 28th April, 2004.

2004 P Cr. L J 1523

[Karachi]

Before Rahmat Hussain Jafferi, J

Mst. SHAZIA---Petitioner

Versus

STATION HOUSE OFFICER and others---Respondents

C.P. No.92 of 2004, decided on 24th April, 2004.

(a) Constitution or Pakistan (1973)---

----Art. 199---Constitutional petition for saving the petitioner and her husband from being subjected to Jirga system---Petitioner had complained to the police to protect her life and the life of her husband but when she could not get a proper response and on the contrary site and her family members were being harassed, she approached the High Court to save her life and that of her husband---Duty was cast upon the Court to save the life of the citizens---Respondents had not controverted the said allegations by denying the same in their written statements or by filing their own affidavits---Factual aspect of the allegations of the petitioner thus stood proved ---Jirga system being not a creation of Constitution or law, Jirga was not a Parliament and they could not declare a valid marriage contracted under the provisions of the relevant law as invalid or unlawful---Supreme Court had already held that for contracting a marriage consent of parents was not essential if the parties were sui juris---Boy and girl having become husband and wife through a valid marriage could not be declared as "Karo Kari" during the subsistence of their marriage---Persons participating in such a Jirga would expose themselves to appropriate action to be taken against them---All executive and judicial authorities throughout the country were duty bound to come in aid of Supreme Court and its decision was to be protected, preserved and implemented by all concerned---Duty of the police was to act swiftly and to preserve the basic fabric of the society, Injunctions of Islam, law of the land and decision of the Supreme Court---Decision of Jirga declaring a valid piece of law as unlawful amounted to legislation and usurping the powers of parliament---After the repeal of the West Pakistan Criminal Law (Amendment) Act, 1963, trials known as Jirga trials were not permissible ---Jirga system, thus, was unlawful and illegal, the same being against the provisions of` the Constitution and the law of the land---Police was duty bound to take appropriate action to prevent the holding of Jirgas---Official respondents were consequently directed to provide due protection to the-petitioner to save her life and the life of her husband by invoking the provisions of the Criminal Procedure Code, 1898, relating to the prevention of offences or after commission of offences, the provisions of Police Order, 2002 and other enabling provisions of laws---Constitutional petition was disposed of accordingly.

PLD 1983 Quetta 52; PLD 1995 SC 530; Muhammad Shafiq v. Additional District Judge 1990 CLC 1108; Ghulam Mustafa v. Mehran University of Engineering and Technology 1986 CLC 1056; Muhammad Farooq v. Government of Sindh 1986 CLC 1408; Hafiz Abdul Waheed v. Asma Jehangir Appeal No.98 of 1997; Muhammad Iqbal v. S.H.O. Police Station Batala Colony Civil Appeal No.563 of 1997 and suo motu case No.4 of 2003 ref.

(b) Jirga---

----Jirga system is not a creation of the Constitution or law ---Jirga, therefore, is not a Parliament and they cannot declare a valid marriage contracted under the provisions of the relevant law as invalid or unlawful.

Hafiz Abdul Waheed v. Asma Jehangir Appeal No.98 of 1997 and Muhammad Iqbal v. S.H.O. Police Station Batala Colony Civil Appeal No.563 of 1997 ref.

(c) Jirga---

----Not protected by any law---Functions which are exclusively to be performed by the Courts of law are being performed by the Jirgas thereby usurping the power of the Courts ---Jirgas as such are a parallel judicial system which by themselves are unlawful and illegal and are not protected by any law---Decision of Jirgas being final no appeal is filed against them which is also against the principle of natural justice.

(d) Jirga---

----Compromise effected by Jirga has no protection of law---Matters referred to a Jirga to settle the dispute or effect a compromise between the .parties without the permission of the Court will not be protected by the law as such Jirga will not be having blessing or backing of the Court.

(e) Jirga---

----Execution of the orders of Jirga---Not permissible under the Constitution or the law---Execution of the orders is the function of State Agencies----Private persons have no authority to execute the decisions of Jirg-as, nor the Jirgas have the authority to execute their own decisions through their own sources---If such decisions are carried out and executed by killing persons, then the offence of murder will be committed and they will be liable to be proceeded against as per law--­Jirgas have also usurped the powers of the executing authorities which is not permissible under the Constitution or the law.

(f) Jirga---

----Constitution undermined---Jirgas are against the trichotomy powers of the Constitution and are exercising the power of Legislature, 'Judiciary and executive enshrined therein and in this way are undermining or attempting to undermine the provisions of the Constitution.

(g) Jirga---

----Duties of police---Assembly in Jirgas in the first instance may be lawful, but the purpose for which they assemble is unlawful and then they conspire to commit some offences and expose themselves for action as provided under various relevant provisions of the Penal Code---Police in such a situation is duty bound to act swiftly and exercise their powers to curb the offences being committed or book the offenders---If nobody comes forward to lodge the F.I.R., then the police on their own can file such F.I.Rs. as are, being filed in the cases of unlicensed arms and ammunition and Narcotics---Is also one of the public duties of the police to protect the life of the citizens when complained to them.

Ghulam Shabir Shah for Petitioner.

Tariq Hanif Gul Mangi, Sarfraz A. Akhund, Ghulam Dastgir, A.A.-G., Abdul Fateh Malik and Nizamuddin Baloch amicus curiae for the Respondents.

Date of hearing; 15th March, 2004.

2004 P Cr. L J 1604

[Karachi]

Before Zahid Kurban Alvi and Maqbool Baqar, JJ

SULTAN SHAH---Applicant

Versus

SUPERINTENDENT, CENTRAL PRISION-I SUKKUR and another---Respondents

Crl. Misc. Application No. 122 of 2003, decided on 7th October, 2003.

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

----Art. 9---Fundamental Rights---Life and liberty of person---No person would be deprived of life or liberty save in accordance with law---State had to act within the limits of law wherever the life or liberty of an individual was affected.

Muhammad Tufail Khokhar v. The Inspector-General of Prisons, Punjab, Lahore and 3 others PLD 1980 Lah. 162; Zia-ud-Din v. Superintendent, Camp Jail, Lahore and another PLD 1976 Lah. 93; Ali Mahmood v. The State 1974 PCr.LJ 249; Lt.-Col. G.L. Battacharya v. The State and others PLD 1964 SC 503;F.A. Khan v. The Government of Pakistan PLD 1964 SC 520; Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693 and Government of Sindh through the Chief Secretary, Karachi and 4 others v. Raeesa Farooq and 5 others 1994 SCMR 1283 ref.

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

----S. 491---Habeas corpus---Enough time had been given not only to Home Department, but also to police concerned to come up with proper documentation if accused was really required under law or he was supposed to have been involved, but they failed to do so---Letter was also issued to the concerned Authorities clearly stating that in case documentations were not received within stipulated time, accused would be released---Authorities having failed to produce any documentation in time, no legal justification existed for continued detention bf accused in jail and his such detention would be illegal.

Maqbool Ahmed Awan for Applicant.

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

Date of hearing: 7th October, 2003.

2004 P Cr. L J 1614

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

WAZIR ALI and others----Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-498 of 2003, decided on 3rd November, 2003.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-A(i), (ii), 337-F(1), 504, 114, 147 & 148---Pre-arrest bail, grant of ---F.I.R., alleged that accused had caused Lathi blows to complainant, but it was not stated that who caused which injury to the complainant---One of accused persons had lodged F.I.R. against complainant party for attempting to commit sodomy---Reasonable grounds existed for grant of pre-arrest bail as prosecution was motivated to involve accused in the case---Accused persons having made out a case for grant of pre-arrest bail, they were admitted to pre-arrest bail, in circumstances.

Jai Jai Veshno Mange Ram for Applicants.

Muhammad Ismail Bhutto for the State.

Date of hearing: 3rd November, 2003.

2004 P Cr. L J 1746

[Karachi]

Before Muhammad Afzal Soomro, J

M.A. KAZMI---Appellant

Versus

NOSHEEN and others---Respondents

Crl. Acquittal Appeal No.280 of 2004, decided on 25th May, 2004.

Criminal Procedure Code (V of 1898)---

----Ss. 249-A & 417---Appeal against acquittal---Order passed under S.249-A, Cr.P.C., could not be challenged in appeal as Appellate Court would not be in a position to convert the findings of acquittal into conviction because normally such orders were passed without recording the full evidence of the prosecution---Perusal of impugned order had revealed that statements of witnesses recorded under S. 164, Cr.P.C., did not support the contents of F.I.R. inasmuch as the witnesses disclosed that incident took place four months prior to registration of F. I. R. --Complaint had itself shown that the dispute arose over the outstanding amount and recovery of money which was purely question of civil nature and complainant, just to create harassment for accused, had lodged said F.I.R., contents of which were not corroborated by the statement of any of witnesses recorded under S.164, C.P.C.---Appeal against acquittal being not maintainable and also being without merits, was dismissed.

Muhammad Yasin v. Muhammad Hanif and others 1997 PCr.LJ 1626 ref.

Waqar Shah for Appellant.

M.A. Khan for Respondents.

Date of hearing: 24th May, 2004.

2004 P Cr. L J 1753

[Karachi]

Before Anwar Zaheer Jamali, J

RUSTAM alias HOTO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-25 of 2002, decided on 23rd January, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/147/148/504/114---Bail, grant of---Further inquiry---Accused was stated to be an aged man and father of co-accused and was in custody since his arrest---Only role assigned to the accused was that of instigation and even the prosecution did not dispute that accused though armed with Lathi, did not play any active role in the commission of crime--­Allegations of prosecution that accused instigated other accused, were yet to stand the test of scrutiny at the time of trial---Case of accused in such circumstances needed further inquiry as to his being guilt of instigation---Accused was admitted to bail, in circumstances.

Mumtaz Hussain and others v. The State 1996 SCMR 1125; Muhammad Saddiq and another v. The State 1996 SCMR 1654 and Farzand Ali v. Taj and 2 others 2000 SCMR 1854 ref.

Nisar Ahmed G. Abro for Applicant.

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

2004 P Cr. L J 1765

[Karachi]

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

SAHIB DINO alias SABOO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.D-355 of 2001, decided on 31st May, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---West Pakistan Arms Ordinance (XX of 1965), S. 13(e)--­Bail, grant of---Accused was behind the bars for the last more than two years and offence under S. 13(e) of West Pakistan Arms Ordinance, 1965 was punishable at the most seven years maximum and minimum three years---Offence against accused was not covered by prohibitory clause of S. 497(1), Cr.P.C. and State Counsel had no objection if bail was granted to the accused---Accused was admitted to bail, in circumstances.

Nisar Ahmed G. Abro for Applicant.

Abdul Fatah Mughal for the State.

2004 P Cr. L J 1775

[Karachi]

Before Syed Zawwar Hussain Jaffery and Muhammad Afzal Soomro, JJ

NADEEM---Petitioner

Versus

SANAULLAH SANGI, A.S.-I., POLICE STATION MAHOTA and 3 others---Respondents

Const. Petition No.D-77 of 2002, decided on 28th February, 2002.

Criminal Procedure Code (V of 1898)---

----Ss. 491 & 497---Penal Code (XLV of 1860), Ss.380/382--­Constitution of Pakistan (1973); Art.199---Constitutional petition--­Unlawful detention---On paying surprise visit at Police Station concerned for the purpose of securing unlawful custody of detenu, it was found that detenu was wanted as suspect accused in offences under Ss.380/382, P.P.C.---Detenu had stated that' he was maltreated at the hands of police---Marks of violence were visible on the body of detenue and he was referred to the Medical Superintendent for examination and certificate ---Detenu who was arrested in substantive offence and a remand had been obtained from the competent Court, could seek further relief from the said Court ---Detenu was already on bail granted by High Court and he had furnished surety, he was required to appear before Investigating Officer as and when asked---Constitutional petition was disposed of accordingly.

Nisar Ahmed G. Abro for Petitioner.

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

Detenue Nisar Ahmed Solangi present on bail.

Respondent No.1 A.S.-I. Sanaullah Sangi along with S.I.P Imdad Ali of Police Station Mahota present.

2004 P Cr. L J 1785

[Karachi]

Before Gulzar Ahmed and Maqbool Baqar, JJ

ALLAH DINO ---Applicant

Versus

THE STATE---Respondent

Cr. Bail A. No.D-510 of 2003, decided on 2nd April, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/380/457---Bail, grant of---F.I.R. did not contain allegations that complainant had seen the accused coming in his house and taking away buffaloes, but according to F.I.R. complainant along with the co-accused family members chased the accused and found him along with the co-accused taking away buffaloes near a watercourse and the deceased was injured at that place--­Complaint as well as the statements under Ss.161 & 164, Cr.P.C. had not attributed direct role of commission of any offence attracting capital punishment---Abscondence of accused alone should not come in the way of grant of bail---No doubt a fugitive from law would lose some of his rights, but he would not lose right of bail forever---Accused had suffered imprisonment for sufficient period, without trial---Accused having made out a case for grant of bail was released on bail, in circumstances.

Ali Nawaz v. State 1988 PCr.LJ 1736; Sharbat v. State 2003 MLD 1191 and Sher Ali alias Sheri v. State 1998 SCMR 190 ref.

Nisar Ahmed Abro for Applicant.

Ahsan Ahmed Qureshi for the Complainant.

Muhammad Ismail Bhutto for the State.

2004 P Cr. L J 1793

[Karachi]

Before Wahid Bux Brohi, J

JHANDO KHAN---Applicant

Versus

THE STATE---Respondent

Crl. Bail Appln. No. 121 of 2004, decided on 23rd July, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.402/353/324/337-H(ii)/149--­Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Bail, grant of---Accused vas in custody for more than one year and two months, but. even the charge' had not yet been framed in the case---Case was of ineffective firing and although the incident had occurred during day time, yet nobody had received any injury on either side---State Counsel in view of delay in trial had not opposed grant of bail to accused---Bail was allowed to accused in circumstances.

Khalid Hussain Shahani for Applicant.

Mushtaq Ahmed Kourejo for the State.

2004 P Cr. L J 1823

[Karachi]

Before Wahid Bux Brohi and Maqbool Baqar, JJ

DUROO alias DARYO KHAN---Applicant

Versus

THE STATE---Respondent

Crl. Bail Appln. No.D-22 of 2004, decided on 30th January, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324/353/149---Explosive Substances Act (VI of 1908), Ss.3/4---Bail, grant of---Further inquiry--­Case against accused was that of ineffective firing and thus was of further inquiry ---Co-accused having been released on bail, under rule of consistency. accused was also entitled to grant of bail---Accused was admitted to bail, in circumstances.

Muhammad Ayaz Soomro for Applicant.

Mushtaq Ahmed Kourejo for the State.

2004 P Cr. L J 1836

[Karachi]

Before Mushir Alam, J

NAMDAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.422 of 2004, decided on 12th July, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/403/147/148---Bail, grant of---Accused had been alleged causing Lathi blow on the deceased, whereas specific allegation of causing hatchet blow and inflicting blow on head of deceased, had been made against the co-accused---Medical evidence had shown three injuries on the head of deceased---Accused was behind the bars since his arrest while co-accused were at large--­Accused was admitted to bail, in circumstances.

Muhammad Ayaz Soomro for Applicant.

Syed Mehboob Ali Shah for the State.

2004 P Cr. L J 1839

[Karachi]

Before Wahid Bux Brohi, J

KHALKOO alias ABDUL KHALIQ and another---Applicants

Versus

THE STATE---Respondent

Cr. Bail A. No.S-228 of 2004, decided on 20th July 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860). Ss.302/201/147/149---Bail, grant of---State Counsel conceded to the grant of bail to accused as no evidence could be collected in the case directly involving the accused--­No ocular or medical evidence was available and dead bodies of both the deceased had not been 'recovered---If another case had been registered about causing; disappearance of dead bodies, it was a separate offence and was still under investigation---Investigating Agency had not collected any evidence to establish that accused were involved directly in the offence or were seen either causing injuries or burying the dead bodies--­Dead bodies could not be secured by Investigating Agency, while second case founded on allegation of removal of dead bodies from the alleged graves, was still under investigation---In absence of tangible evidence prima facie connecting accused with the crime, sole evidence based on spy information, was not enough to deprive accused of concession of bail---Accused were admitted to bail, in circumstances.

Muhammad Ayaz Soomro for Applicants.

Muhammad Ismail Bhutto for the State.

2004 P Cr. L J 1971

[Karachi]

Before Ghulam Rabbani, J

FARHAN SHAH---Applicant

Versus

THE STATE---Respondent

Cr. B.A. No.408 of 2004, decided on 5th August, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 11/16---Bail, grant of---Further inquiry---Alleged abductee during course of investigation was produced before Judicial Magistrate where she in her statement under S.164, Cr.P.C. had stated that she had gone to Karachi to see her maternal aunt and that she neither was abducted nor she was subjected to sexual intercourse by accused---Girl had further stated that she had gone out from her house of her own will and that her brother had lodged a false F.I.R.---State Counsel had stated that matter being of further inquiry he had no objection to grant the bail to accused---Bail was granted to accused, in circumstances.

Syed Jehangir Hussain Shah for Applicant.

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

2004 P Cr. L J 1972

[Karachi]

Before Khilji Arif Hussain, J

HASNAIN ALI and another---Applicants

Versus

THE STATE---Respondent

Cr. Bail Application No. 313 of 2004, decided on 8th July, 2004.

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

----S. 354-A---Assault or use of criminal force against woman and stripping her of her clothes-- -Scope and application of S.354-A, P. P. C.--­Section 354-A, P.P.C. has been incorporated to protect the modesty and honour of the woman---Where a person exposes a woman to public view in a way in which she would not like to appear in public by stripping her of clothes, he is liable to be prosecuted under S.354-A, P.P.C.---Making the woman completely nude is not necessary---Tearing off a- substantial portion of the dress of a woman exposing her body to general public so as to humiliate her in such condition attracts the applicability of S.354-A, P.P.C. --Stripping off the clothes of a woman and compelling her in such condition to view of the public are the requirements of the section.

Abdul Latif and another v. The State 1991 PCr.LJ 194 and Mst. Abida Jabeen v. Imtiaz Ahmed and others 1997 PCr.LJ 600 dissented from.

(b) Interpretation of statutes---

---- Statute should be interpreted in such a way that it should advance the remedy and suppress the mischief.

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

----S. 497(2)---Penal Code (XLV of 1860), S.354-A/504/34---Bail, grant of---Accused were not alleged in the F.I.R. to have assaulted the victim, stripped her of her clothes and in that condition exposed her to the public view, which were the essential ingredients of S.354-A, P.P.C. and the same, prima facie, was not attracted in the case---Affidavits of the complainant and grandfather of the victim who claimed to be present on the spot, showed that they had not identified the accused persons---Case against accused needed further inquiry as envisaged by S.497(2), Cr.P.C.---Accused were admitted to bail accordingly.

Abdul Latif and another v. The State 1991 PCr.LJ 194 and Mst. Abida Jabeen v. Imtiaz Ahmed and others 1997 PCr.LJ 600 dissented from.

Imdad Ali Awan for Applicants.

Zubair Ahmed Rajput for the State.

Date of hearing: 8th July, 2004.

2004 P Cr. L J 1991

[Karachi]

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

MUHAMMAD alias MANDO MALLAH---Applicant

Versus

THE STATE---Respondent

Crl. Bail Applications Nos.36 and 633 of 2004 decided on 13th July, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Bail, grant of---Further inquiry---Bail was sought mainly on the grounds that accused neither was arrested from the spot nor anything was recovered from his person so as to connect him with the commission of alleged offence---Accused had further contended that despite having received spy information, no private person was associated as Mashir though alleged incident was shown to have taken place during the day­time in a town area; that story as narrated in the F.I.R. did not inspire confidence and it called for further inquiry---State counsel keeping in view facts and circumstances of the case had rightly conceded to the grant of bail---Accused was released on bail, in circumstances.

Shafi Muhammad Memon for Applicant.

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

2004 P Cr. L J 1994

[Karachi]

Before Anwar Zaheer Jamali and Maqbool Baqar, JJ

Qazi MUHAMMAD SHAMIM---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and 2 others---Respondents

C.Ps. Nos.D-467, D-502, D-503, D-627 and D-628 of 2004, decided on 28th August, 2004.

Criminal Procedure Code (V of 1898)---

----Ss. 497/561-A---Penal Code (XLV of 1860), Ss.409/420/468/471/109/34---Prevention of Corruption Act (II of 1947), S.5(2)---Constitution of Pakistan (1973), Art. 199---Constitutional petitions---Bail, grant of--­Involvement of accused was based either on the statement of co-accused who at the relevant time, was holding the office of the Accountant of the Cantonment Board concerned or signing of some Accounts Registers with reference to certain bank vouchers received by the accused which were purportedly managed by the main accused in connivance with another accused, an employee of the bank---Accused were not shown involved in the commission of the crime as per contents of the F.I.R. lodged by the Sub-inspector after the commission of the offence as unearthed by the Audit party---First challan submitted before the Special Court also did not show the accused involved in the commission of the crime---Record at this stage, prima facie, did not reveal the involvement of accused in the offence for which they had been charged and their case needed further inquiry---Challan had been submitted in the NAB Court after completion of investigation and there was no possibility of tampering with the evidence---Accused were admitted to bail in circumstances.

Imtiaz Ahmed v. The State PLD 1997 SC 545; Chowdhary Zulfiqar v. The State PLD 2002 SCMR 546 and Haji Ghulam Ali v. The State 2003 SCMR 597 ref.

Shahadat Awan, Ghulam Mustafa Memon and Akhlaq Ahmed for Petitioners.

Amanullah Khan Special Prosecutor, NAB on behalf of Respondents.

2004 P Cr. LJ 2002

[Karachi]

Before Mushir Alam, J

SHAFI MUHAMMAD ---Applicant

Versus

THE STATE---Respondent

Crl. Bail Appln. No.452 of 2004, decided on 16th August, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/147/148/149/504/114--­Bail, grant of---Accused allegedly had caused injury on the left hand of deceased---Fatal injury was attributed to co-accused who was still at large---Accused was arrested on 25-6-2003 and case did not proceed any further till 16-8-2004---Question of common intention could only be determined at the trial and not at bail stage---Accused was admitted to bail, in circumstances.

Jai Jai Veshno for Applicant.

Abdul Ghafoor Magsi for the State.

2004 P Cr. L J 2003

[Karachi]

Before Muhammad Afzal Soomro, J

Dr. ABDUL ALEEM --- Applicant

Versus

THE STATE---Respondent

Cr.B.A. No. 1521 of 2003, decided on 1st June, 2004.

Criminal Procedure Code (V of 1898)---

----S. 498---Passports Act (XX of 1974), S.6(1)(g) --- Emigration Ordinance (XVIII of 1979), Ss. 17 & 22---Pre-arrest bail, grant of--­Offence with which the accused was charged did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Mala fide conduct of prosecution was evident from the diary of the file ---F.I.A. police just to harass and humiliate the accused had caused delay in producing the police file before the High Court which had no evidence against the accused--­Interim pre-arrest bail granted to accused was confirmed in circumstances.

Rehan Rashid v. The State 1994 PCr.LJ 1689; Ghulam Hussain v. The State and others 1997 PCr.LJ 1782; Liaqat Ali v. The State 1999 PCr.LJ 1469 and Gul Zaman v. The State NLR 1999 Criminal 384 ref.

Iqbal Solangi for Applicant.

S. Mehmood Alain Rizvi, Standing Counsel.

Date of hearing: 24th May, 2004.

62004 P Cr. L J 2006

[Karachi]

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

MUHAMMAD alias MANDO MALLAH---Applicant

Versus

THE STATE---Respondent

Cr. Bail Appln. No.57 of 2004 (Hyd.) Crl. Bail Appln. No.634 of 2004(Khi.), decided on 13th July, 2004.

Criminal Procedure Code (V of 1898)---

----Ss. 497, 513 & 514---Bail, grant of---Conversion of order furnishing security to that of furnishing surety---Accused, who was granted bail subject to furnishing security in the sum of Rs.1,00,000, had prayed for conversion of order from security to surety contending that he was a poor man and unable to manage depositing of such huge amount of security---State Counsel conceded and had recorded no objection if accused was directed to furnish surety by deposit of title deeds instead of security--­Court being competent to convert nature of security and ask for surety, accepted application of accused and directed him to furnish surety accordingly.

Khadim Hussain v. The State PLD 2004 Kar. 191 ref.

Shafi Muhammad Memon for Applicant.

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

2004 P Cr. L J 2011

[Karachi]

Before Mushir Alam, J

ALI MURAD --- Applicant

Versus

THE STATE---Respondent

Cr.B.A. No.395 of 2004, M.As. Nos.864 and 865 of 2004, decided on 12th July, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/337-A(ii), F(i)/147/148/114---Bail, grant of---Co-accused was granted bail and case of accused was identical to that of co-accused---Charge in the case had not been framed---Allegation against accused was of Lathi blow on person of deceased who allegedly had received four injuries and only one injury was attributed to accused---State Counsel conceded to grant of bail to accused on ground of delay---Accused was granted bail on plea of hardship and delay.

Jai Jai Vehsnu for Applicant.

Sayed Mehboob Ali Shah State Counsel.

2004 P Cr. L J 2012

[Karachi]

Before Sarmad Jalal Osmany and Rahmat Hussain Jafferi, JJ

Mian MUNIR AHMED ---Appellant

Versus

THE STATE---Respondent

Crl. Accountability Appeal No.4 of 2001, decided on 27th October, 2003.

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

----S. 5(r)---Wilful default---Essential ingredients to prove wilful default are; (i) there should be a person within the meaning of National Accountability Ordinance, 1999; (ii) there should be a Bank, Financial Institution, Cooperative Society, Government Department, Statutory Body or an Authority established or controlled by a Government; (iii) there should be an amount taken by the person from any institution as mentioned in No.(ii); (iv) there should be dues; (v) that such persons did not pay, or continues not to pay, or return or repay such dues on the date the same became due as per agreement containing an obligation to pay, return or repay the same according to laws, rules, regulations or instructions issued or notified by the State Bank of Pakistan and other above mentioned institutions and (vi) that a period of 30 days has expired thereafter.

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

----Ss. 10(a) & 5(r)---Wilful default---Appreciation of evidence--­Accounts between the parties were not settled from the year 1994 even before the promulgation of the National Accountability Ordinance 1999, and the dispute concerning the settlement of accounts was sub judice before the Court of law---Dues having not been determined so far, the accused could not be termed as a wilful defaulter within the meaning of S.5(r) of the Ordinance---Accused was acquitted in circumstances.

Agricultural Development Bank of Pakistan v. Sanaullah Khan PLD 1988 SC 67; Abdul Latif v. Government of West Pakistan PLD 1962 SC 384 and Abdul Shakoor Kaloodi v. The State 2003 PCr. LJ 626 ref.

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

----S. 18---Cognizance of offences---Initiation of proceedings---Amount due against the borrower should be determined and adjudicated upon before initiating the recovery proceedings against him.

Agricultural Development Bank of Pakistan v. Sanaullah Khan PLD 1988 SC 67 and Abdul Latif v. Government of West Pakistan PLD 1962 SC 384 ref.

Aitzaz Ahsan for Appellant.

M. Anwar Tariq, D.P.G. for the State.

Date of hearing: 10th April, 2003.

2004 P Cr. L J 2022

[Karachi]

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

MUMTAZ ---Applicant

Versus

THE STATE---Respondent

Crl. Bail Appln.No.388 of 2004 (Hyd.)/631 of 2004(Karachi), decided on 13th July, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S. 9(b)---Bail, grant of---Further inquiry---Bail was sought mainly on grounds that offence against accused did not fall within the prohibitory clause as it was punishable with a maximum imprisonment upto 7 years that despite receiving spy information well in advance no one was either associated or tried to be associated as a Mashir from the locality, so that the arrest and recovery proceedings could become authenticated; that accused had been involved in case due to some enmity with local police and that it was a case of further inquiry---State counsel in view of fact and circumstances had rightly conceded to grant of bail---Accused was released on bail, in circumstances.

Shah Muhammad Memon for Applicant.

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

2004 P Cr. L J 2031

[Karachi]

Before Ghulam Nabi Soomro and Muhammad Mujeebullah Siddiqui, JJ

LEEMON and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Revision Application No. 149 of 2003 and Spl. Anti-Terrorism Appeal No.42 of 2003, decided on 19th. February, 2004.

Penal Code (XLV of 1860)---

----Ss. 365-A, 148 & 149---Anti-Terrorism Act (XXVII of 1997), Ss.19(12) & 7---Criminal Procedure Code (V of 1898), S.439---Accused admittedly had voluntarily surrendered before the Trial Court after their conviction in absentia within the period of sixty days as prescribed by section 19(12) of the Anti-Terrorism Act, 1997, and prayed for their retrial---Record did not show service on the accused in any manner whatsoever for their appearance in the Court to face their trial---Accused had been released at the conclusion of investigation on having been found innocent and the case against them had been disposed of under B-Summary---Accused, had neither absconded nor concealed themselves to avoid the proceedings against them---Conviction and sentences of accused recorded in absentia were consequently set aside with the direction to Trial Court to put them on fresh trial in accordance with law---Revision petition was allowed accordingly.

Abdul Haleem Pirzada for Applicants.

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

Date of hearing: 19th February, 2004.

2004 P Cr. L J 2034

[Karachi]

Before Mushir Alam, J

SHOUKAT---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 396 of 2004, decided on 9th August, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-H(2)/457/459/511---Bail, grant of ---F.I.R. was lodged after about 10 days delay and accused was arrested after about more than one month from lodging of F.I.R.--­Charge had not yet been framed for no fault of accused---Injury attributed to accused was punishable with three years---Accused was behind the bars for the last about 15 months---Accused was granted bail.

Jai Jai Veshno Mange Ram for Applicant.

Mushtaq Ahmed Kourejo for the State.

2004 P Cr. L J 2035

[Karachi]

Before Anwar Zaheer Jamali and Muhammad Mujeebullah Siddiqui, JJ

RIAZ AHMED ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 189 of 2004, decided on 24th March, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(b)--­Bail, grant of---Accused had alleged that due to enmity with police, he had been falsely implicated in the crime---State counsel, in view of small quantity of Charas recovered from accused which was 130 grams, and other facts, did not oppose bail application filed by accused---Accused was admitted to bail, in circumstances.

Shafi Muhammad Memon for Applicant.

Anwar Ansari for the State.

2004 P Cr. L J 2040

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

MUHAMMAD ASIF---Appellant

Versus

THE STATE---Respondent

Special Anti-Terrorism Appeal No. 56 of 2000, decided on 22nd April, 2004.

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

---S. 10(3)---Qanun-e-Shahadat (10 of 1984), Art. 129, Illustration (a)---Appreciation of evidence---Lady Doctor had opined that the victim baby girl was subjected to fresh act of sexual intercourse---Chemical Examiner's report had confirmed presence of semen on the "Shalwar" of accused---Accused according to medical report was potent and capable of performing act of sexual intercourse---Sister of the victim girl had given details precisely conforming to the prosecution story which had been supported by other prosecution witnesses---Blood was noted in front of the door of the house of the accused and blood drops also led to the room where an attempt had been made to wash the same---All the links in the chain had been proved step by step at the trial---Testimony of the complainant was not open to any doubt---Plea of alibi taken by accused was belied by the defence evidence itself---Victim girl having been found in possession of accused soon after the incident of rape, inference could be drawn on the analogy of Illustration (a) of Article 129 of Qanun-e-­Shahadat, 1984, that it was the accused who had committed rape upon the victim, because such presumption could be extended to even more aggravated offence---Conviction of accused along with his sentence of imprisonment and compensation was maintained in circumstances--­Sentence of whipping having been abolished was, however, set aside--­Appeal was disposed of accordingly.

Jamnadas Tharoomal v. Emperor AIR 1940 Sindh 42; Pritam Singh v. State AIR 1954 Punjab 201; Dukhi Dei v. The State AIR 1965 Orissa 33; Emperor v. Sheikh Neamatulla 17 Cal. WN 1077; Emperor v. Chintamoni Shahu AIR 1930 Cal. 379 (2); Ramprashad Makundram v. The Crown AIR 1949 Nag. 277; State v. Motia AIR 1955 Raj. 82 and Pritam Singh's AIR 1954 Punjab 201 ref.

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

----Art. 129, Illustration (a)---Presumption extendable to other more aggravated crimes including murder---Possession of stolen goods after their recent loss my be indicative not merely of the offence of larceny or of receiving with guilty knowledge, but of any other more aggravated crime connected with theft---Said particular fact of presumption only forms also a material piece of evidence in cases of murder, special application of which has often been emphatically recognized.

Emperor v. Sheikh Neamatulla 17 Cal. WN 1077; Emperor v. Chintamoni Shahu AIR 1930 Cal. 379 (2); Ramprashad Makundram v. The Crown AIR 1949 Nag. 277; State v. Motia AIR 1955 Raj. 82 and Pritam Singh's AIR 1954 Punjab 201 ref.

Umer Farooq Khan for Appellant.

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

Date of hearing: 22nd April, 2004.

2004 P Cr. L J 2048

[Karachi]

Before Mushir Alam and Gulzar Ahmed, JJ

ASGHAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.D-95 of 2003 and M.A. No.999 of 2003, decided on 2nd September, 2004.

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

----S. 13(d)---Appreciation of evidence---Same set of witnesses was disbelieved by same Court while recording acquittal in other case whereas same set of witnesses was relied upon for inflicting conviction in the present case---Station. Diary was not produced by prosecution to substantiate its plea that police officials were on patrol duty---Accused had remained behind the bar for over 18 months---If benefit of remission was taken into consideration, accused had earned more than 5/6 months of remission which would make total period of his confinement to two years, whereas maximum punishment was seven years for offence against accused---Sentence awarded to accused by Trial Court was reduced to what he had already undergone, .in circumstances and fine was also reduced accordingly.

Jai Jai Vishnu for Appellant.

Muhammad Ismail Bhutto for the State.

2004 P Cr. L J 2050

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

MUHAMMAD RAFIQ BEHALAM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 98 of 2004, decided on 27th January, 2004.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.379---Prevention of Anti-­National Activities Act (VII of 1974), S.13---Pre-arrest bail, grant of--­F.I.R. had only alleged that accused and other co-accused tried to steal oil, but no direct evidence for committing alleged theft was available--­Only certain pipes rods and iron bars were found at the place of incident, at the time of investigation, which indicated that attempt was made for stealing oil---Such circumstantial piece of evidence is respect of commission of offence could not be used against the accused---Case having been made out for grant of pre-arrest bail, bail already granted to accused was confirmed in circumstances.

Saathi M. Ishaque for Applicant.

Ms. Akhtar Rehana for the State.

2004 P Cr. L J 2060

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

SHAREEF KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Revision No. 115 of 2003, decided on 23rd December, 2003.

Criminal Procedure Code (V of 1898)---

----Ss. 516-A & 439---Control of Narcotic Substances Act (XXV of 1997), Ss.9(b), 32 & 33(1)---Custody of motorcycle on Superdari--­Evidence, prima facie, was available on record to support the contention of the applicant that he was the owner of the motorcycle and not the accused from whose possession the narcotic concealed in it was allegedly secured---Motorcycle could only be confiscated under S.32 of the Control of Narcotic Substances Act, 1997, when the owner was proved to know that the offence was or was being committed and a judicial decision thereon was passed as required by S.33(1) of the said Act---Investigating Officer was yet to be examined in the case, but the document furnished on record had, prima facie, showed that the applicant had a case to support his plea at the trial about his ignorance about the commission of the alleged offence---All such points were to be thrashed and decided at the trial---Applicant at such stage was apparently entitled to the temporary custody of the motorcycle which was given to him accordingly.

S.H. Ghulam Sabir Niazi for Applicant.

Javed Akhtar for the State.

Date of hearing: 23rd December, 2003.

2004 P Cr. L J 2062

[Karachi]

Before Muhammad Afzal Soomro, J

SHER DIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 758 of 2004, decided on 30th August, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4---Bail, grant of---Alleged incident took place at 11.00 a.m. near a Petrol Pump where in addition to vehicles, drivers, passengers, staff working there was available but police did not make any of them either as Mashir of recovery of alleged one K.G. `Bhang' from possession of accused nor of his arrest---Mashirs of arrest and recovery being subordinate of complainant, their evidence would not be fair and free from doubts---Accused, in circumstances having successfully made out a case for grant of bail was admitted to bail.

Syed Zahir Hussain Chishti for Applicant.

Habibur Rasheed for the State.

2004 P Cr. L J 2064

[Karachi]

Before Sarmad Jalal Osmany, J

Haji HAYDER and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 414 and M.A. No. 874 of 2004, decided on 17th August, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/504/34---Bail, grant of---Further inquiry---Accused were alleged only to be present in vehicle in which main accused was also sitting who thereafter killed deceased by firing with his mouser---Question of vicarious liability and common intention of accused persons would require further inquiry in circumstances of the case---Accused were admitted to bail, in circumstances.

Shafi Muhammad Memon for Applicants.

Anwar H. Ansari for the State.

2004 P Cr. L J 1

[Lahore]

Before Muhammad Ghani, J

MUHAMMAD AKMAL SHAH‑‑‑Petitioner

Versus

D.S.P. and others‑‑‑Respondents

Writ Petition No. 12886 of 2003, heard on 26th September, 2003.

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

‑‑‑‑S. 516‑A‑‑‑Penal Code (XLV of 1860), S.406‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Cancellation of Superdari‑‑‑Validity‑‑‑Superdari of the car in dispute in favour of the petitioner had been cancelled by the Magistrate on the ground of breach of the undertaking on which the car was given to him and proceedings against him under S.406, P.P.C. were ordered to be initiated‑‑‑Order of Sueprdari in favour of the petitioner was interlocutory in nature and amenable to be recalled on breach of express conditions‑‑‑Car was given on Superdari to the petitioner with an express and unequivocal mandate from the Court that he was obliged to produce the same as and when required to do so, which was in trust with him‑‑‑Petitioner had admittedly already sold away the car in breach of the said condition and now was unable to produce it in Court‑‑‑Assumption that the petitioner was ostensible owner of the car was bereft of any valid foundation‑‑‑Even the question as to who was entitled to the ultimate possession of the vehicle was yet to be decided at the conclusion of the trial, whereas the question of its ownership was yet to be determined by the Civil Court‑‑‑Act of the petitioner, thus, attracted the provisions of S.406, P.P.C.‑‑‑Petitioner had approached High Court with unclean hands, rather with a sinister background and he was not entitled to the discretionary relief and the petition was liable to be dismissed on this ground as well‑‑­Constitutional petition was dismissed in limine in circumstances.

Humayoun Azam v. Ch. Sadiq Inspector/S.H.O., Police Station Kunjah 1999 MLD 1636 and Babu Khan v. Crown 1970 SCMR 107 ref.

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

‑‑‑‑S. 516‑A‑‑‑Custody and disposal of property pending trial‑‑‑Order under S.516‑A, Cr.P.C. is of interlocutory nature resorted to for the purpose of temporary arrangement so that the case property is saved from decay and is handed over to the person ex facie found entitled to its possession which inures till final order is made under S.517, Cr.P.C.

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

‑‑‑‑Ss. 516‑A & 517‑‑‑Disposal of property‑‑‑Criminal Courts are not competent to determine question of title or ownership of the property which falls within the exclusive domain of the Civil Court of plenary jurisdiction.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 381‑A‑‑‑Criminal Procedure Code (V of 1898), Ss.516‑A & 517‑‑­Theft of a car or other motor vehicles‑‑‑Custody and disposal of property pending trial‑‑‑Prevailing conditions with regard to investigation, recovery, custody and disposal of property deprecated by the High Court.

Majid Ali Wajid for Petitioner.

Tahir Qureshi for Respondents.

Date of hearing: 26th September, 2003.

2004 P Cr. L J 10

[Lahore]

Before Tassaduq Hussain Jilani and Bashir A. Mujahid, JJ

Dr. AHMAD JAVED KHAWAJA and another‑‑‑Petitioners

Versus

THE STATE and others‑‑‑Respondents

Writ Petition No.2262 of 2003, decided on 5th April, 2003.

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

‑‑‑‑S. 15‑‑‑Criminal Procedure Code (V of 1898), Ss. 5(2), 177, 178 & 344‑‑‑Security of Pakistan Act (XXX of 1952), S.3‑‑‑Penal Code (XLV of 1860), Ss.324/353/148/149‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Holding of trial in jail premises‑‑‑Special Public Prosecutor filed application before Trial Court under S.377, Cr.P.C. praying that accused could not be directed to appear before the Court and that case be adjourned for three months as public appearance of accused could create a law and order situation‑‑‑Said application was turned down by Trial Court with observation that there was no provision in law which could empower Trial Court to keep under trial accused in judicial lock‑up for a period of three months‑‑‑Subsequently the Public Prosecutor moved another application in which Court was apprised of the fact that Home Department vide Notification had directed that trial of accused be held in jail premises and the Court could pass an appropriate order giving effect to the said direction‑‑‑Said application of Public Prosecutor was allowed by the Court‑‑‑Validity‑‑‑Accused were facing trial under Anti‑Terrorism Act, 1997 and S.15 of said Act had provided that Anti‑Terrorism Court would ordinarily sit at place including jail premises‑‑‑Criminal Procedure Code itself in its S.5(2) had created exception insofar as special laws were concerned‑‑‑Case or a class of cases might come, trial of which at ordinary place of sitting could be hazardous to public security‑‑‑In present difficult times there was a worldwide trend to enact Special Laws for trial of offences which had been declared to be scheduled offences under those laws‑‑‑Such laws had empowered the Government or the Court to specify the place of trial on account of nature of case or circumstances surrounding it and that could be necessary for the security of the Court, of the parties, their witnesses and for any other valid reasons which could weigh with the Competent Authority‑‑‑Order/direction of Home Secretary, though did not spell out reasons, but that was not a mandatory requirement under S.15 of Anti­ Terrorism Act, 1997 to do so and omission to spell out reasons in circumstances, by itself would not make order/direction of Home Secretary unlawful in absence of any apparent mala fides‑‑‑No jurisdictional defect was found, in circumstances, to warrant interference under Art.199 of Constitution of Pakistan (1973) in direction of Home Secretary.

Asif Ali Zardari v. Special Judge (Offences in Banks) and 10 others PLD 1992 Kar. 437; Muhammad Ashfaq Chief v. Government of Sindh and others PLD 1996 Kar. 326; Mahram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through the Minister and another PLD 1989 Kar. 404; In re: Reference made by sessions Judge, Larkana for Transfer of Cases 1990 PCr.LJ 1687; Kehar Singh and others v. The State PSC 1989 SC 533; The State v. Islamuddin alias Changha 1984 PCr.LJ 273; Sar Khan v. The State and another PLD 1967 Pesh. 314; Sheikh Hafeez Ahmad v. The State through Secretary (Home), Government of the Punjab, Lahore PLD 1975 Lah. 1453 and Inayat Hussain v. The State AIR 1956 All. 448 ref.

Pervaiz Inayat Malik for Petitioners.

Syed Shabbar Raza Rizvi, A.‑G., Punjab assisted by Syed Muhammad Jalal‑ud‑Din Khuled for the State.

Date of hearing: 5th April, 2003.

2004 P Cr. L J 27

[Lahore]

Before Muhammad Farrukh Mahmud and Ch. Iftikhar Hussain, JJ

NAZIR AHMAD‑‑‑Petitioner

Versus

THE STATE‑ ‑Respondent

Criminal Miscellaneous No.692/B of 2002, decided on 26th March, 2002.

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

‑‑‑‑S. 497(2)‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑No recovery was effected from accused and he was also not apprehended at the spot‑‑‑Dera where the accused allegedly was present at the time of raid, did not belong to him, but belonged to another person‑‑‑Question that whether confessional statement made by co‑accused before police could be used against accused or that of involvement of accused in the matter, needed serious consideration‑‑‑Prima facie no offence having appeared to have been made out against accused, no reasonable grounds existed to believe that accused, in circumstances, had committed non‑bailable offence and rather, grounds were available for further inquiry into the guilt of accused‑‑‑Embargo contained in S.51 of Control of Narcotic Substances Act, 1997, in such a situation, would not be attracted‑‑‑State Counsel could not show that accused was convicted in any of criminal cases allegedly registered against him and plea of accused‑that he was acquitted in said cases, had not been controverted by 'the State Counsel‑‑‑Case for enlargement on bail having been made out, accused was admitted to bail.

Tariq Zulfiqar Ahmad Chaudhary for Petitioner.

Tariq Murtaza for the State.

Date of hearing: 26th March, 2002

2004 P Cr. L J 35

[Lahore]

Before Muhammad Khalid Alvi, J

BASHIR AHMED ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Nos.724/B alongwith 883/B of 2002, decided on 6th May, 2002.

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

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/109‑‑‑Bail, grant of‑‑­Further inquiry‑‑‑Accused were not named in F.I.R., but Were impleaded as accused in supplementary statement of complainant recorded after about one and half months of the occurrence ‑‑‑Challan though had been submitted and case was fixed for hearing, but case of accused appeared to be one of further inquiry which was covered under subsection (2) of S.497, Cr.P.C.‑‑‑Accused, in circumstances, were entitled to be released on bail.

1985 SCMR 195 and PLD 1989 SC 585 ref.

Ch. Pervaiz Aftab, Ayaz Ahmad Chaudhry and Nadeem Ahmad Tarar for Petitioner.

Tariq Zulfiqar Ahmad Chaudhry for the Complainant.

Sh. Abdul Rahim for the State.

Date of hearing: 6th May, 2002.

2004 P Cr. L J 47

[Lahore]

Before Khawaja Muhammad Sharif and Bashir A. Mujahid, JJ

QAMAR EHSAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.863 and Murder Reference No.466 of 1998, decided on 18th February, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Reduction in sentence‑‑‑Matter was reported to local police after two and half hours of the occurrence and accused was nominated in F.I.R.‑‑‑Both complainant and prosecution witness had no previous enmity for false implication of accused or substitution by letting off the real culprits‑‑‑Ocular account furnished by both eye‑witnesses had fully been corroborated by medical evidence and recovery of pistol‑‑‑Occurrence had taken place inside the stop of accused and it was for him to explain as to how the occurrence had taken place‑‑‑Accused had not examined any witness in support of his plea that deceased had come to him for removing bullet from his pistol‑‑Prosecution case having been established against the accused beyond any shadow of doubt conviction recorded against accused by Trial Court could not be interfered with, but case against accused was not of capital punishment‑‑F.I.R. showed that deceased was quarrelling with accused when eye‑witnesses saw the occurrence‑‑‑Accused had not repeated the fire and case of complainant was that he alongwith prosecution witness to intervene when accused fired at the deceased‑‑‑Nothing been brought on record to show as to what had transpired the deceased and accused immediately before occurrence‑‑‑Case against accused being' not of capital punishment, maintaining his conviction, sentence of death awarded to accused by Trial Court, was reduced to imprisonment for life, accordingly, to meet the ends of justice.

S.D. Qureshi for Appellant (at State expenses).

Mrs. Tausheen Taskeen for the State.

Date of hearing: 18th February, 2003.

2004 P Cr. L J 54

[Lahore]

Before Muhammad Khalid Alvi, J

MUHAMMAD SHAFIQ alias RAFIQUE‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1602/B of 2002, decided on 2nd July, 2002.

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

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/34/109‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑No sufficient evidence was available with prosecution to connect accused with commission of crime as no motive was alleged against the accused‑‑‑No recovery was effected from accused and he was not named in F.I.R.‑‑‑Active participation of accused in actual crime was not believed by police itself‑‑‑Supplementary statement of complainant in which accused was involved was recorded after about one and half months from occurrence‑‑‑Extra‑judicial confession allegedly made by accused before `Punchayat" was a weak type of evidence‑‑‑Case against accused being of further inquiry, he was admitted to bail.

Tariq Zulfiqar Ahmad Chaudhary for Petitioner.

Ghulam Muhammad for the State.

Date of hearing: 2nd July, 2002.

2004 P Cr. L J 87

[Lahore]

Before Mian Muhammad Jehangir, J

JAVAID IQBAL‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Nos.582/B and 740/B of 2003, decided on 17th February, 2003.

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

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/109/148/149‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Prosecution story showed that the accused was present at the spot on the day of occurrence, whereas factual position as provided on record was that on the day of occurrence he was under arrest in another case‑‑‑Such fact was verified by Investigating Officer and the same was found to be correct, and accused was declared innocent in the case‑‑‑Prosecution version having been negated by documentary evidence, case of further inquiry to the extent of the accused‑‑‑Opinion of local police to the extent of co‑accused being not based upon any sound material he was released on bail.

Muhammad Sadiq v. Sadiq, and others PLD 1985 SC 182; Dr. Muhammad Aslam v. The State 1993 SCMR 2288; Muhammad Aslam v. The State 1982 PCr.LJ 529; Noor Ahmad v. The State 1993 PCr.LJ 1517; Gulzar Ahmad v. The State 1994 SCMR 1728 and Jan Muhammad v. Abdul Latif and 3 others 2003 MLD 72 ref.

Sh. Najam‑ul‑Hassan for Petitioner.

Muhammad Ahsan Bhone for the Complainant.

Rai Zameer‑ul‑Hassan Kharal for the Complainant (in Criminal Miscellaneous No.740/B of 2003).

Azhar Abbas Kazmi for the State.

Date of hearing: 17th February, 2003.

2004 P Cr. L J 96

[Lahore]

Before Muhammad Farrukh Mahmud, J

ZAFAR IQBAL and others‑‑‑Petitioners

Versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous No. 1233/B of 2002, decided on 6th June, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.337‑L(ii), 354 & 354‑A‑‑­Bail, grant of ‑‑‑Challan submitted before Trial Court did not contain provisions of S.354‑A, P.P.C.‑‑‑Statement of victim recorded by police showed that she was dragged by accused, but no allegation existed that string of her Shalwar was cut or she was denuded in public‑‑‑Whether any offence under S.354‑A, P.P.C. was committed or not would be determined by Trial Court after recording of some evidence‑‑‑Offence under S.354, P.P.C. was bailable and under S.337‑L(ii), P.P.C. was not punishable with ten years or more‑‑‑Accused were admitted to bail, in circumstances.

Muhammad Amir v. The State PLD 1972 SC 277 ref.

Tariq Zulfiqar Ahmad Chaudhry for Petitioners.

Taj Muhammad Khan for the Complainant.

Muhammad Shaukat Riaz for the State.

Date of hearing: 6th June, 2002.

2004 P Cr. L J 101

[Lahore]

Before Muhammad Farrukh Mahmud, J

KHADIM HUSSAIN and others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1200/B of 2002, decided on 20th May, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16‑‑‑Ad interim pre‑arrest bail, confirmation of‑‑‑Accused had joined investigation and had claimed. to be husband and wife while alleged co‑accused was younger brother of the male accused‑‑‑Claim of accused was based on Nikahnama according to which both accused had married after divorce of female accused from her ex‑husband‑‑­Allegations as levelled against accused in F.I.R. needed further probe and inquiry‑‑‑Except for the admission of Nikah of accused, no evidence was available on record to show that accused were committing Zina‑‑‑Ad interim pre‑arrest bail already granted to accused, was confirmed, in circumstances.

Tariq Zulfiqar Ahmad Chaudhry for Petitioners.

Tahir Ali Qureshi for the State.

Date of hearing: 20th May, 2002.

2004 P Cr. L J 121

[Lahore]

Before Bashir A. Mujahid and Mian Muhammad Jehangir, JJ

AMIR ZAMAN and others‑‑‑Appellants

Versus

Syed AMER ABBAS and others‑‑‑Respondents

Criminal Appeals Nos.41‑T, 433‑T of 2002 and Criminal Revision No. 133 of 1999, decided on 24th April, 2002.

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

‑‑‑‑S. 417(2‑A)‑‑‑ Anti‑Terrorism Act (XXVII of 1997), Ss.6, 7, 8 & 25(4)‑‑‑Penal Code (XLV of 1860), Ss.302/341/342/353/365/365‑A/392/394/412/34‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑‑­Appeal against acquittal and revision for enhancement of sentence‑‑­Under provisions of subsection (4) of S.25 of Anti‑Terrorism Act, 1997 only Attorney‑General, Deputy Attorney‑General, Standing Counsel, an Advocate‑General or an Advocate of High Court or Supreme Court appointed as Public Prosecutor, Additional Public Prosecutor or a Special Public Prosecutor, could file an appeal against acquittal within 15 days of the order of acquittal‑‑‑Right of appeal against acquittal having been created by a statute, could not be resorted to by implication or by inference‑‑‑Police constable, in the present case, in his official capacity had got criminal case registered against the accused who were acquitted of the charge by Trial Court‑‑‑Only the State could file appeal against acquittal and complainant being not included in the category, of officers mentioned in subsection (4) of S.25 of Anti‑Terrorism Act, 1997, could not file appeal against acquittal of accused‑‑‑Words used `any Court' in S.417(2‑A), Cr.P.C. were only relevant to the Courts functioning under Criminal Procedure Code, 1898 and it would not extend or refer to Special Courts established under special laws like Anti‑Terrorism Act, 1997 and right of appeal could not be read in the Statute which did not specifically provide for‑‑‑By not providing right to appeal against acquittal to private complainant, no fundamental right had been infringed‑‑‑Equality of a citizen before law was to be seen under the particular law‑‑‑Appeal filed against acquittal and revision for enhancement of punishment, were dismissed being incompetent.

Faiz Muhammad v. Mehrab Shah and others PLD 1991 Pesh. 166; Faizur Rehman v. The State and others PLD 2002 Pesh. 6; Quaid‑e-Azam v. The State 2000 PCr.LJ 216 and NLR 1998 Criminal 369 ref.

Basharatullah Khan for Petitioner (in Criminal Revision No.133 of 1999).

Z. Muhammad Babar Khan, for Appellant (in Criminal Appeal No.41‑T of 2002).

Sabah M. Sharifuddin Khan for Appellant (in Criminal Appeal No.433‑T of 2002).

Malik Muhammad Rafique Khan for Respondent.

Syed Sajjad Shah, A.A.‑G. for the State.

Date of hearing: 24th April, 2002.

2004 P Cr. L J 129

[Lahore]

Before M. Naeemullah Khan Sherwani, J

Rana MUHAMMAD ANWAR ‑‑‑Petitioner

Versus

D.I.‑G. and others‑‑‑Respondents

Writ Petition No. 4141 of 2002, decided on 12th March, 2003.

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

‑‑‑‑Ss. 6, 9(c) & 21‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4/28‑‑‑Criminal Procedure Code (V of 1898), S.87‑‑‑Re­investigation of case‑‑‑Proceedings against Police Officer‑‑‑During pendency of trial against accused, father of accused filed application to Deputy Inspector‑General of Police wherein he stated that case against his son was false and requested for re‑investigation of the case of his son through an independent, impartial and straightforward Police Official‑‑­Application was accepted and re‑investigation of the case was ordered and Police Officer who re‑investigated the case after fullest evaluation of facts and circumstances of the case concluded that accused was innocent and in supplementary challan placed the accused in Column No.2‑‑­Deputy Inspector‑General agreeing with re‑investigation, ordered to proceed against Assistant Sub‑Inspector of Police who had earlier investigated the case and also ordered to submit the challan against him and to place him in Column No.3 of supplementary Challan‑‑‑Trial Court proceeded against the said Police Officer‑‑‑Validity‑‑‑No legal bar existed on re‑investigation of the case even after submission of final report under S.173, Cr.P.C. and police was competent under law to carry out fresh investigation and submit its report to the Court‑‑‑Order passed by Deputy Inspector‑General for re‑investigation of case, was perfectly legal and did not call for interference‑‑‑Crime of fabricating false evidence and false cases against innocent persons had become dangerously frequent in the country, which of course had to be taken notice of by the Courts and senior most officials.

Muhammad Yousaf v. The State and others 2000 SCMR 453 ref.

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

‑‑‑‑Ss. 6/9(c)/21/72‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4 & 28‑‑‑Proceedings against Assistant Sub‑Inspector of Police‑‑‑ Claim for indemnity under S.28, Prohibition (Enforcement of Hadd) Order, 1979‑‑‑During pendency of trial before Additional Sessions Judge, Public Prosecutor brought to the notice of the Trial Court that by dint of application of S.21 of Control of Narcotic Substances Act, 1997, Trial Court had no jurisdiction to try the case and same be entrusted to the Court of Magistrate for trial‑‑‑Validity‑‑‑Provisions of S.21 of Control of Narcotic Substances Act, 1997 did not envisage that if case had been registered or investigated by an Assistant Sub‑Inspector of Police, then trial would be held by Magistrate and not by a Special Court constituted under Control of Narcotic Substances Act, 1997‑‑‑Sessions Judge was directed to withdraw the case from Magistrate and to conclude the trial of the case himself‑‑‑Accused/Assistant Sub‑Inspector had claimed that his case was fully covered under indemnity clause of Art.28 of Prohibition. (Enforcement of Hadd) Order, 1979‑‑‑Claim of accused was rejected because as case was to be tried by Sessions Judge/Special Court, created under Control of Narcotic Substances Act, 1997, accused could not claim indemnity under Art.28 of Prohibition (Enforcement of Hadd) Order, 1979.

The State through Collector of Customs v., Naseem Amin Butt and others 2001 SCMR 1083 and Mahmood Khan v. The State 2002 PCr.LJ 1402 ref.

(c) Criminal trial‑‑‑

‑‑‑‑ Practice and procedure‑‑‑When two theories propounded by police officials are put before the Court, pertaining to same offence and same victim, one going against one accused and other against a different accused, most appropriate procedure to be followed by a Court should be that two trials should be separately conducted, one after the other and judgment in both the cases be separately pronounced on the same day‑‑­Sessions Judge would exercise much care that he would confine his judgment in one case only to the evidence produced in that particular case.

Haji Dildar Khan for Petitioner.

Najeeb Faisal Chaudhry, Addl. A.‑G. for Respondents.

Date of hearing: 12th March, 2003.

2004 P Cr. L J 145

[Lahore]

Before Asif Saeed Khan Khosa, J

AZEEM and others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Nos.3377/B, 3439/1 and 3460/C.B. of 2003, decided on 23rd June, 2003.

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

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/412/460/34‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Occurrence had taken place during the dead of night‑‑‑Accused had not been named in F.I.R. as perpetrators of alleged offences, but their names had surfaced in the case for the first time through a supplementary statement made by complainant‑‑‑Even according to that statement complainant had been told about names of accused by someone who made a statement before police to the effect that he had seen accused running away from the spot after incident‑‑‑No identification parade had been held so as to positively incriminate accused‑‑‑Accused had not taken any active part in alleged incident of firing at deceased and involvement of accused in case had remained unwitnessed‑‑-Articles allegedly recovered from possession of accused during investigation had never properly been identified by complainant party to‑ be the articles which had been stolen during alleged occurrence ‑‑‑Co‑accused had already been admitted to bail by Trial Court and petition filed by complainant seeking cancellation of his bail had already been dismissed‑‑‑Cases of co‑accused and accused were almost identical‑‑‑Investigation of case having already been finalized and a challan having already been submitted, physical custody of accused was no more required for purpose of investigation‑‑‑Case against accused, in circumstances, called for further inquiry into their guilt within purview of subsection (2) of S.497, Cr.P.C. and in a case calling for further inquiry, bail was to be granted to accused as of right and not by way of grace or concession.

Maqbool Ahmad Bhatti for Petitioners.

Ghulam Nabi Bhatti for the Complainant.

Miss Najma Rashid for the State.

Date of hearing: 23rd June, 2003.

2004 P Cr. L J 186

[Lahore]

Before Mian Muhammad Jahangir, J

RAQIAS SHAH‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3036/B of 2003, decided on 23rd June, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.420/468/471‑‑‑Bail, grant of‑‑‑Vehicle in question allegedly having bogus number plate was in possession of accused and his co‑accused, was in custody of police‑‑‑Accused who allegedly posed to be owner of vehicle in question was not a previous convict‑‑‑Case of accused was identical to co‑accused who had been granted bail and no exceptional circumstances existed to refuse bail to him‑‑‑Accused was admitted to bail, in circumstances.

Malik Mukhtar Ahmad Talokar for Petitioner.

Asif Khan for the State.

Date of hearing: 23rd June, 2003.

2004 P Cr. L J 191

[Lahore]

Before Khawaja Muhammad Sharif, J

YOUNUS‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1385/B of 2003, decided on 27th March, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/34‑‑‑Baik grant of‑‑­Only simple injury on the person of injured prosecution witness was attributed to accused who had not touched the deceased‑‑‑Accused and his two co‑accused were also injured, but their injuries were suppressed by the prosecution‑‑‑Investigating Officer after investigation had ordered that a cross‑version should also be registered against complainant party‑‑­Accused was allowed bail, in circumstances.

Ch. Muhammad Hussain Chhachar for Petitioner.

M. Yaseen Farrukh Kamboh for the Complainant.

Date of hearing: 27th March, 2003.

2004 P Cr. L J 200

[Lahore]

Before Asif Saeed Khan Khosa, J

JAVAID AKHTAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2348/B of 2003, decided on 19th May; 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.395/411/454/337-F(i)/ 337-F(ii)/148/149---Bail, grant of---Slight delay in lodging the F.I.R. had fully been explained in F.I.R. itself---Accused had specifically been nominated in F.I.R. as one of perpetrators of alleged offence and an active participation in alleged incident had been attributed to him ---Eye­witnesses including injured complainant had fully implicated accused in alleged offence in their statement made before police---Accused was brother-in-law of complainant and no reason had been brought on record as " to why complainant would falsely implicate accused in case of such nature---Accused had himself admitted his presence at the spot at relevant time---Section 395, P.P.C. attracted prohibitory clause contained in S.497(1), Cr.P.C.---Challan had been submitted in Court against the accused---Accused was also found involved in a murder case as well as, in A case for .possession of illicit arms---Prima facie reasonable grounds existed to believe involvement of accused in, alleged offences---Bail application filed by accused was dismissed, in circumstances.

Ch. Ahmad Saifullah Khatana for Petitioner.

Zafar Iqbal Chauhan for the Complainant.

Muhammad Hanif Chaudhry for the State.

Date of hearing: 19th May, 2003.

2004 P Cr. L J 208

[Lahore]

Before Nasim Sabir Ch., J

Mst. AFSHAN PERVEEN---Petitioner

Versus

S.H.O., POLICE STATION QUTABPUR, MULTAN and 2 others---Respondents

Writ Petition No. 133/Q of 2003, decided on 2nd October, 2003.

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

----S. 11---Constitution of Pakistan (1973); Art. 199--Constitutional petition---Quashing of F.I.R.---Allegation in F.I.R. was that co-accused alongwith others had abducted the victim girl for the purpose of committing Zina---Petitioner/accused had contended that she being sui juris had contracted marriage with co-accused and Nikahnama was duly registered---Medical report revealed that accused was a sui juris and had reached the age of majority---Accused being sui juris had lawfully married with co-accused of her own choice, of her own accord and free-will, no offence as alleged in the F.I.R. thus had been made out against him---Conviction of accused in circumstances was not possible and continuation of investigation against accused would simply amount to unnecessary harassment---Law did mot prohibit a sui juris girl from marrying a person of her own choice- and living with him as a legally­ wedded wife--Such was her Constitutional guarantee which could not be taken away---High Court, in Constitutional jurisdiction could interfere in larger interest of justice and could quash criminal, investigation if it would come to the conclusion that 'continuation of criminal investigation would not serve any purpose ---F.I.R. registered against accused was quashed, in circumstances.

Ch. Muhammad Jamil for Petitioner.

Syed Hashmat Hussain Naqvi for the State.

2004 P Cr. L J 210

[Lahore]

Before Asif Saeed Khan Khosa and Ch. Iftikhar Hussain, JJ

SHAUKAT ALI ---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.715 of 2003, heard on 21st October, 2003.

Penal Code (XLV of 1860)---

----Ss. 365-A/302/34/109---Anti-Teirorism Act (XXVII of 1997), Ss.7 & 6---Revision---Application of accused, who claimed himself to be a "child" for transfer of his case to a Juvenile Court for trial, was dismissed by the Anti-Terrorism Court by means of the impugned order---Specific "design" or "purpose" contemplated by the provisions of S.6(1)(b) or (c) was not discernible from the F.I.R. and the case, thus, was not one of "terrorism" as envisaged by S.6 of the Anti-Terrorism Act, 1997 arid the same .was to be tried by a Court of ordinary jurisdiction---Question of juvenility of the accused vis-a-vis the forum of his trial, therefore, was irrelevant as the case was now to be sent to a Court of ordinary jurisdiction and if the accused was a juvenile then such Court had to be a Juvenile Court and no other Court---Impugned order was consequently set aside with the direction to Anti-Terrorism 'Court to transmit the record of the case forthwith to the Court competent to try the case of accused---Revision petition was allowed accordingly.

Mazhar v. The State PLD 2003 Lah. 267 ref.

Muhammad Nawaz Shah for Petitioner.

Tariq Shamim for the State.

Date of hearing: 21st October, 2003.

2004 P Cr. L J 216

[Lahore]

Before Abdul Shakoor Paracha, J

ABDUL HAMEED---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No. 126 of 2003, decided on 30th September, 2003.

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

----S. 514---Contract Act (IX of 1872), S.126---Offence of Zina enforcement of Hudood) Ordinance (VII of 1979), S.10---Proceedings under S.514, Cr.P.C. initiated against the witness of the bail bonds--­Validity---Trial Court apart from initiating proceedings under 5.514, Cr.P.C. against the surety had also proceeded against the witness (petitioner) directing him to produce the surety in the Court---Petitioner, admittedly, was not surety and he had simply signed the surety bond as an attesting witness---No agreement or undertaking existed on behalf of the petitioner regarding production of the accused before the Court who had jumped bail---Witness on the surety bond could not be termed as far surety under S.126 of the Contract Act and he was not responsible for the appearance of accused---No proceedings, therefore, could be initiated against the petitioner under S.514, Cr.P.C.---Proceedings of issuing Notice against the petitioner and subsequent proceedings taken against by the Trial Court were set aside being illegal in circumstances.

Mumtaz Ahmed v. The State 1999 PCr.LJ 1079 and PLD 1972 Arad J&K 42 ref.

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

---S. 514---Forfeiture of bond---Witness on surety bond not liable for proceedings---Where accused had jumped bail, surety is under obligation to either produce him or face the consequences---Person resting bail bond is not responsible for appearance of accused and as such no proceedings under S.514, Cr.P.C. can be initiated against him.

Mumtaz Ahmed v. The State 1999 PCr.LJ 1079 and PLD 1972 Azad J&K 42 ref.

Sardar Muhammad Hafeez Khan for Petitioner.

Babar Bilal for the State.

2004 P Cr. L J 222

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD RIAZ and another-----Petitioners

Versus

THE STATE---Respondent

Miscellaneous No.601/B of 2003, decided on 13th October, 2003.

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

----S. 498---Offence of Zina (Enforcement of Hudood) Ordinance (VII of. 1979), Ss.10(3)/ 16---.Pre-arrest bail, grant of---Matter was reported to the Police after 14 days---Alleged abductee in her statement made before Investigating Officer, in presence of prosecution witnesses, had stated that no one had committed Zina with her---Complainant had also submitted an affidavit before Investigating Officer wherein she had stated that she got the case registered against the accused due to some misunderstanding---Accused had already joined the investigation and nothing was to be recovered from them---Both the complainant and abductee had been making divergent statements before the Police---Grant of pre-arrest bail was salutary principle of law which was exercised to save the innocent persons from the torture of police and humiliation---Ad interim pre-arrest bail already granted to accused, was confirmed, in circumstances.

Dilshad Ali Khan for Petitioners.

Sardar Shamim Ahmad Khan for the Complainant.

Abdul Ghani for the State.

Date of hearing: 13th October, 2003.

2004 P Cr. L J 224

[Lahore]

Before Ch. Iftikhar Hussain, J

NAZEER AHMAD.-----Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Revision No. 316 -of 2003, decided on 2nd September, 2003

Juvenile Justice System Ordinance (XXII of 2000)-----

----S. 7---Penal Code (XLV of 1860), Ss. 302/34/109---Determination of age of accused---Separate trial of accused as juvenile, application for--­Two of the accused persons, in their application, had prayed that they being less than 18 years of age at the time of alleged incident, were entitled to be tried separately from their co-accused as per scheme of Juvenile Justice System Ordinance, 2000---Complainant side resisted application of accused contending that at least one of the said accused persons was more than 18 years o f age at the relevant time---Trial Court, in view of said difference, referred matter to Medical Board and Medical Board, after examining said accused persons declared the accused persons to be less than 18 years of age---Trial Court holding further inquiry into the matter, directed to prepare separate challan against accused for their trial separately from their co-accused---Medical opinion in respect of age of accused being more preferable and reliable, Trial Court had not erred in law in holding age of accused to be less than 18 years at the time of alleged incident and directing their separate trial from their co-accused--­Order of Trial Court could not be interfered with by High Court in exercise of its revisional jurisdiction.

Muhammad Akram v. Muhammad Haleem 2002 PCr.LJ 633 ref.

Tahir Mehmood for Petitioner

2004 P Cr. L J 229

[Lahore]

Before Zafar Pasha Chaudhary, J

MUHAMMAD KHALID---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1585/B of 1997, decided on 16th October, 1997.

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

----S. 497(2)---Penal Code (XLV of 1860), S.381-A---Bail, grant of--­Prosecution story had revealed that during checking, two persons were seen coming on motorcycle who were in receipted by the police and their motorcycle was found to be stolen property---Accused was stated to be riding at the back seat of motorcycle---Sitting at the back seat of motorcycle was not sufficient to prove the accused guilty unless there was some other evidence connecting him with commission of crime---Case against accused had become that of further inquiry---Accused was stated to be previously non-convict and he was not required in any criminal case---Accused was a young boy working as an Assistant in workshop--­Accused was admitted to bail, in circumstances.

Mrs. Saeeda Asif for Petitioner.

Kanwar Riaz Ahmad for the State.

Date of hearing: 16th October, 1997.

2004 P Cr. L J 230

[Lahore]

Before Pervaiz Ahmad and Rustam Ali Malik, JJ

MUHAMMAD TASAWAR and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.1583, 1668 and Murder Reference No.80-T of 2002, heard on 23rd October, 2003.

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

----Ss. 302/324/353---Anti-Terrorism Act (XXVII of 1997), S.7(a)--­Appreciation of evidence---No description of accused was given in the F.I.R.---Features of none of the accused were mentioned in F.I.R. nor it was mentioned therein that either the complainant or prosecution witness had identified or had even properly seen the accused from the opposite side---Occurrence had taken place at night and accused allegedly had fled away after firing at the deceased---Weapons of offence were not recovered from the accused during investigation---Prosecution story was full of inconsistencies, contradictions and improbabilities--Eye-witnesses had made improvements in their statements on a number of material points---On the basis of evidence of such nature, conviction could not be recorded on capital charge---Eye-witnesses had failed to establish that they had actually seen the culprits clearly at the time of occurrence or had remembered their features---Subsequent identification of accused by eye-witnesses during identification parade, in circumstances, was without any legal importance---Medical evidence was merely a corroborative piece of evidence and in absence of reliable ocular account, medical evidence could not be considered as corroborative piece of evidence--­Prosecution story being full of improbabilities, doubts and improvements, benefit of doubt had to go to the accused--­Conviction and sentence recorded against accused by Trial Court, were set aside and giving them benefit of doubt, they were acquitted of the charge.

State through Advocate-General, Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1; Lal Pasand v. The State PLD 1981 SC 142 and Abdul Sattar and others v. The State 1981 SCMR 678 ref.

Naseer Ahmed Bhutta and Malik Noor Muhammad Awan for Appellants.

Rana Javed Anwar for the State.

Muhammad Ahsan Bhoon for the Complainant

Date of hearing: 23rd October, 2003.

2004 P Cr. L J 244

[Lahore]

Before Mian Muhammad Akram Baitu, J

ABDUL REHMAN and 4 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos.2523/B and 2571/B of 2003, decided on 13th October, 2003.

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

----S. 498---Penal Code (XLV of 1860), Ss.379/440/148/149---Pre-arrest bail, confirmation of---Main accused had already been discharged by Area Magistrate who had observed in his order that complainant was not owner in possession of the property in dispute---Case of accused in circumstances needed further inquiry into their guilt---Accused had joined investigation---Pre-arrest bail already granted to accused was confirmed, in circumstances.

1996 MLD 1444 ref.

Khan Dil Muhammad Khan Alizai for Petitioners.

Mehr Ashfaq Ahmad Utra for the State.

Date of hearing: 13th October, 2003.

2004 P Cr. L J 256

[Lahore]

Before Ch. Iftikhar Hussain, J

Syed IQBAL HUSSAIN ---Petitioner

Versus

DISTRICT POLICE OFFICER, HAFIZABAD and 5 others---Respondents

Writ Petition No. 13787 of 2003, decided on 5th November, 2003.

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

----S. 22-A---Penal Code (XLV of 1860), S.182---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of orders--­Petitioner moved application to the Sessions Judge for registration of case against persons mentioned in the said application for having committed Qatl-e-Amd of his uncle---Sessions Judge called for report from S.H.O. concerned who reported that allegation contained in the application were false and frivolous---Sessions Judge on the basis of said report, without issuing any show-cause notice to petitioner, directed for initiation of proceedings against petitioner under S.182, P.P.C.---Validity---For taking action under S.182, P.P.C., a show-cause notice had to be given to the person against whom proposed action was .to be taken and proceedings initiated without such notice would be illegal---Proceedings under S.182, P.P.C. could not be initiated against the petitioner as neither any case was registered nor investigated---Prerogative to proceed under S.182, P.P.C. lay only with Police Officer and no other Authority could direct Police Officer to proceed against the first informant who had given. the false information---Sessions Judge, in circumstances, was not competent to direct initiation of proceedings against petitioner under 5.182, P.P.C.---Order initiating proceedings against petitioner under S.182, P.P.C., was set aside.

Muhammad Murad v. The State 1983 PCr.LJ 1097; Nasim Akhtar Soofi v. The State 1990 PCr.LJ 336 and Haji Muhammad Aslam v. Inspector-General and others PLD 2001_ Lah. 84 ref.

Zulfiqar Ali Noon for Petitioner.

Ch. Jamshed Hussain, A.A. -G. for Respondents Nos, 1 and 2.

Ch. Abdul Hameed Gondal for Respondents Nos.3 to 6.

2004 P Cr. L J 262

[Lahore]

Before Mian Muhammad Akram Baitu, J

GHULAM AKBAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1447/B of 2003, decided on 8th September, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.392/411/109---Bail, grant of---Allegation against accused was only of abetment ---Nothing had been recovered from the accused and he was also not named in the F.I.R.---No sufficient material was on record to connect accused with crime alleged against him---Accused was no more required by police for further investigation---Further detention of accused in judicial lock-up would not serve any useful purpose---Accused was admitted to bail, in circumstances.

Khan Dil Muhammad Khan Alizai for Petitioner:

Syed Altaf Hussain Bokhari for the State.

Date of hearing: 8th September; 2003.

2004 P Cr. L J 263

[Lahore]

Before Muhammad Akhtar Shabbir, J

AFAF RAHIM---Petitioner

Versus

NISAR AHMAD and 2 others---Respondents

Writ Petition No. 11256 of 2003, decided on 13th November, 2003.

(a) Interpretation of statutes---

---- Promulgation of statute when to become effective---Any Act or Statute promulgated by the Legislature, would be effective immediately from the date of enforcement and it would have no retrospective effect unless so provided in law.

Province of East Pakistan v. Sharafatullah P L D 1970 SC 514 and The Chief Land Commissioner, Sindh v. Ghulam Haider Shah 1988 SCMR 715 ref.

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

S. 489-F [as amended by Criminal Law (Amendment) Ordinance (LXXXV of 2002)]---Constitution of Pakistan (1973), Art.199--­Consiitutional petition---Quashing of F.I.R.---Offence under S.489-F, P.P.C. was not provided in the Penal Code when the cheques in question were issued and dishonoured--Amending Ordinance whereby said offence had been added in the Penal Code was issued and enforced much after the alleged occurrence---Case against accused, in circumstances; was not covered within the ambit of provisions of S.489-F, P.P.C.---No other offence having been added in the F.I.R., High Court accepting the petition, quashed F.I.R. against petitioner/accused.

Ch. Pervaiz Elahi v. Federation of Pakistan and others 1995 MLD 615 and Mirza Ishtiaq Hussain v. Syed Abdul Qadir 1970 Law Notes 757 ref;

Ahmad Shahzad.Farooq for Petitioner

Nadeem Mahmood Mian for the Complainant

Muhammad Sohail Dar, A.A.-G.

2004 P Cr. L J 268

[Lahore]

Before Syed Zahid Hussain, J

MUHAMMAD RAFIQUE---Petitioner

Versus

THE STATE and 17 others---Respondents

Writ Petition No.13074 of 2003, decided on 12th November, 2003.

Police Order (22 of 2002)-----

----Art. 18---Criminal Procedure Code (V of 1898), Ss. 154 & 156--­Constitution of Pakistan (1973), Art.199---Constitutional petition--­Successive investigations---Limits---Petitioner/complainant feeling aggrieved of successive investigations, earlier filed Constitutional petition with the prayer that order for investigating the case for the fourth time be declared to be illegal with direction to the police to put up challan---High Court disposed of the Constitutional petition on the report of S.P./Range Crime that all accused had been found guilty of offence and case file was sent back to S.H.O. concerned with the direction to submit challan against the accused---Complainant thereafter made application before Sessions Judge for direction to police to submit challan, but Sessions Judge passed order on said application that case was still under investigation and concerned DSP had been directed to submit the challan expeditiously- --Complainant had assailed said order of Sessions Judge in the present Constitutional petition---Validity---Matter of investigation, in view of the report earlier submitted by S.P./Range Crime on the basis of which earlier Constitutional petition was disposed of, ought to .have ended and challan submitted before Court concerned but same was dragged and lingered on and petitioner/complainant had to again approach the High Court clamouring for justice---Besides provisions of Art.18 of Police Order, 2002 which had limited the number 'and transfer of investigations, there was no scope left for any other investigation after statement was made before High Court that investigation had been completed and file had been sent for submission of challan to the S.H.O. concerned--Any statement made or undertaking given during course of proceedings before the Court by a party, particularly when the matter was disposed of by the Court, in view thereof, would bind the party and acquired sanctity and it would become duty of party to honour and respect the same---Any deviation therefrom by a party to the litigation could not be .ordinarily ignored or overlooked---Any order of transfer of investigation passed after order passed in earlier Constitutional petition or the conduct of further investigation could not, but be regarded as militating against order earlier passed by High Court and was of no legal effect.

Ustad M. Iqbal for Petitioner.

Ijaz Hassan Ghouri for Respondents.

Fazal Meeran Chohan, Addl. A.-G.

2004 P Cr. L J 271

[Lahore]

Before Mian Muhammad Akram Baitu, J

GHULAM AKBAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1484/B of 2003, decided on 8th September, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code_(XLV of 1860), S.401---Bail, grant of---Offence complained against accused did not fall within prohibitory clause of S.497, Cr.P.C.---Alleged recovery had already been effected and accused was no more required by police for further investigation---Accused was not a previous convict---Further detention of accused in judicial lock-up would not serve any useful purpose---Accused was admitted to bail, in circumstances.

Khan Dil Muhammad Khan Alizai for Petitioner

Syed Altaf Hussain Bokhari for the State.

Date of hearing: 8th September, 2003.

2004 P Cr. L J 275

[Lahore]

Before Sh. Hakim Ali, J

ABDUL AZIZ and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.965/B of 2003, decided on 24th September, 2003.

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

---S.497(5)---Bail, cancellation of---After extending concession of bail to accused, it could be withdrawn when there was abuse of bail granted to accused.

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

----S.497---Penal Code (XLV of 1860), S.435---Bail, grant of---Bail granted to accused by Magistrate was cancelled by Additional Sessions Judge on the ground that accused had hurled threats of dire consequences to the complainant as well as to the witnesses and had tried to tamper with the prosecution evidence---Neither affidavits of the witnesses nor any report from those witnesses who were allegedly given threats were produced alongwith the application for cancellation cancellation of bail-I-Bail was granted to accused, in circumstances.

Dilshad Ali Khan for Petitioners.

Mirza Muhammad Nadeem Asif for the State.

Date of the hearing: 24th September, 2003.

2004 P Cr. L J 277

[Lahore]

Before Bashir A. Mujahid, J

Malik MUHAMMAD ASHRAF---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.356/B of 2003, decided on 27th 2003.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss-379/406 --- Pre-arrest grant of---Accused, who was allowed ad interim bail, had investigation and there was no allegation against him for mis concession of bail---Offence alleged against accused did not fall t prohibitory clause of 5.497, Cr.P.C. and there was no chance abscondence---Ad interim pre-arrest bail granted to accused confirmed in circumstances.

Zafar Iqbal Chohan for Petitioner.

Ch. Muhammad Younas for the Complainant.

Sh. Khurshid Iqbal for the State.

Date of hearing; 27th January, 2003.

2004 P Cr. L J 282

[Lahore]

Before Asif Saeed Khan Khosa, J

Mst. GHULAM FATIMA --- Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4597/B of 2002, decided on, 19th July, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.3021324/148/149 --- Bail, grant of---Further inquiry ---F.I.R. in the case had been lodged with noticeable delay ---F.I.R. showed that the accused had not caused any injury to deceased but attributed raising Lalkara and causing a Sota blow on the back of complainant---Question of sharing of common object by accused with his co-accused and also question regarding vicarious liability of accused for the offences allegedly committed by her co­ accused, called for further probe at the time of trial--Accused being a woman, her case attracted provisions of first proviso to subsection (1) of S.497, Cr.P.C.---Challan had already been submitted after completion of investigation---Continued custody of accused in jail was not likely to serve any beneficial purpose in circumstances---Concession of bail ought not to be withheld by way of premature punishment.

Zafar Iqbal Chohan for Petitioner.

Tariq Mehmood Chaudhry Kamboh for the State.

Date of hearing: 19th July, 2002.

2004 P Cr. L J 284

[Lahore]

Before Muhammad Farrukh Mahmud, J

ALLAH BAKHSH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1308/B of 2003; decided on 8th October, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.419/420/468/471---Bail, grant of---Accused was not principal accused---Offence against accused did not attract prohibitory clause of S.497, Cr.P.C.---Nothing was on record to show that accused was previously involved in any criminal activity--­Grant of bail, in such-like cases, was a rule and refusal an exception--­Accused was admitted to bail, in circumstances.

Muhammad Amir v. The State 1973 PCr.LJ 205 ref.

Dilshad Ali Khan Nadeem and Sardar Muhammad Shamim Khan for Petitioner.

Malik Manzoor Ahmad Misson for the Complainant.

Muhammad Munir Gondal for the State.

Date of hearing: 8th October, 2003.

2004 P Cr. L J 287

[Lahore]

Before Muhammad Farrukh Mahmud, J

SABIR HUSSAIN ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.597/B of 2003; decided on 26th June, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.392---Bail, grant of---Accused ' was 'confined in judicial lock-up for more than one year even after completion of investigation---No recovery was -effected from the accused---Nothing was on record to show that accused was previously involved in any criminal activity---Not a single witness had been examined by trial Court---Accused was admitted to bail, in circumstances.

Dilshad Ali Khan Nadeem for Petitioner.

Muhammad Nadeem Asif for the State.

Date of hearing: 26th June, 2003.

2004 P Cr. L J 288

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

GHULAM HUSSAIN ---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.57/B of 2003, decided on 27th February 2003.

Criminal Procedure Code (V of 1898)---

------S. 497(2)---Penal Code (XLV of 1860), Ss.302/364/201---Bail, grant of---Further inquiry---Delay of 1-1/2 months in lodging F.I.R. was not explained---Investigating Officers had submitted that according to statements of prosecution witnesses co-accused had fired at the deceased, killed him and threw his dead body in canal and accused was present with co-accused at the relevant time---Investigating Officers had further submitted that none of the witnesses had made statements that they had last seen the deceased with accused ---Co-accused was found innocent during investigation---Accused was in judicial lock-up since long, but trial had not commenced---Case against accused being of further inquiry, he was admitted to bail.

Malik Sadiq Mahmood Khurram for Petitioner.

Ch. Abdul Ghani for the State.

Date of hearing; 27th February, 2003.

2004 P Cr. L J 295

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD YAQOOB and another---Petitioners

versus

THE STATE---Respondent

Criminal Miscellaneous Nos.817/B and 1030/13 of 2003, decided on 13th October, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/I1---Bail, grant of---Further inquiry---Matter was reported to police after a considerable delay- -Allegations levelled in F.I.R, were found to be incorrect during the investigation-- -Co-accused were also found to be innocent during investigation---Allegation against accused, in, circumstances, needed further, probe within the ambit of subsection (2) of 5.497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Dilshad Ali Khan Nadeem and Sardar Zafar Iqbal Khan Tareen for Petitioner.

Mirza Muhammad Nadeem Asif for the State.

Date of hearing; 13th October, 2003.

2004 P Cr. L J 296

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

GHULAM MURTAZA---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.573/B of 2003, decided on 15th July, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/447/109/148/149---Bail, grant of---Prosecution case was that the accused and his co-accused reached the spot on a tractor and accused was driving tractor at the relevant time---Accused was not armed with any weapon at the time of occurrence----No injury to deceased-or prosecution witnesses had been attributed to accused ---Co-accused was allowed bail---Case of accused was identical with the case of co-accused---Accused was admitted to bail, in circumstances.

Sadiq Mehmud Khurram for Petitioner.

Zahid-ur-Rehman Tayyab for the Complainant.

Ghazanfar Ali Khan for the State.

Date of hearing: 15th July, 2003.

2004 P Cr. L J 301

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and M. Naeemullah Khan Sherwani, JJ

MUHAMMAD YAQOOB---Appellant

versus

THE STATE and 3 others---Respondents

Criminal Appeal No. 1308 of 2000, heard on 7th October, 2003.

Criminal Procedure Code (V of 1898)---

----S. 417-A---Penal Code (XLV of 1860), Ss.365/337-A(ii)/337-L(ii)/ 148/ 149---Appeal against acquittal---After submission of challan in the case, charge was framed and supplementary challan was submitted after about one year from submission of earlier challan and Trial Court on basis of said supplementary challan, acquitted the accused---Court, after taking cognizance, could take a supplementary challan as an additional evidence, .but same could not be made a basis for discharge or acquittal of accused---Order acquitting accused having no sanctity, was not sustainable---Acquittal order was set-aside and case was remanded to Trial Court to be re-decided after hearing parties.

Naveed Inayat Malik for Appellant.

Tariq Majeed Khan for Respondents.

Date of hearing: 7th October, 2003.

2004 P Cr. L J 302

[Lahore]

Before Nazir Ahmad Siddiqui, J

SARFRAZ alias PUNNUN---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.611/B of 2003, decided on 8th July, 2003.

Criminal Procedure Code (V of 1898)---

-----S. 497---Penal Code (XLV of 1860), Ss.392/411-A---Bail, grant of—F.­I.R. was lodged with a delay of three days---Motorcycle in question was not recovered from accused---No identification parade was held and accused was involved simply on the bases of suspicion---Accused was behind the bars since his arrest and there was no likelihood of commencement of trial in a near future---Accused was admitted to bail, in circumstances.

Khizar Abbas and another v. State KLR 2001 Criminal Cases 334, Ghulam Dastagir v. State 2001 PCr.LJ 235 and Muhammad Suleman v. Riasat Ali and another 2002 SCMR 1304 ref.

Malik Sadiq Mahmud Khurram for Petitioner.

Chaudhry Abdul Ghani for the State.

Date of hearing: 8th July, 2003.

2004 P Cr. L J 308

[Lahore]

Before M. Naeemullah Khan Sherwani, J

ATTA ULLAH and another---Petitioners

versus

THE STATE.---Respondent

Criminal Miscellaneous No.5748/B of 2003, decided on 13th October, 2003.

(a) Criminal trial---

---- If a person after acquiring full knowledge of an incident kept mum, he was to be considered as a privy to the-prime ---Said conduct of witness was by itself criminal.

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

----S. 498---Penal Code (XLV of 1860), Ss.302/148/149---Presarrest bail, grant of--Accused had been regularly joining investigation, but police failed to recover any incriminating weapon from them---None from the locality of occurrence ever put up appearance before Investigating Agency to depose against accused---Such circumstances had cast doubt upon genuineness of the theory propounded by police---Mere fact that an eye-witness whose name was mentioned in FA.R. had gone hostile, would in no way indicate criminality of accused---Case of further probe into allegations against accused having been made out, pre-arrest bail was granted to him.

Arif Chaudhary for Petitioners.

Najeeb Faisal Chaudhary, Addl. Advocate-General and Rizwan Afzal for the State.

Date of hearing: 13th October, 2003

2004 P Cr. L J 311

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and M. Naeemullah Khan Sherwani, JJ

ASHIQ HUSSAIN ---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.5369/B of 2003, decided on 9th October, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Bail, grant of---Complainant, police official who was on visiting terms with the accused, Was forbidden to visit any more because of his objectionable activities which caused annoyance to the accused---Said police official/complainant due to that reason became inimical towards the accused and behaved like being cobra, to sting accused---Only the police people had been cited as witnesses in the case and no independent, disinterested witness was brought forward to support theory propounded by police, party---Allegation brought against accused called for a further probe---Accused was not a previous convict and there was no likelihood of his jumping the bail---Maximum sentence provided for offence against accused was seven years---Accused was admitted to bail, in' circumstances.

Liaqat Ali Malik for Petitioner.

Ch. Muhammad Hafeez for the State.

Date of-hearing: 9th October, 2003.

2004 P Cr. L J 320

[Lahore]

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

SHAHZAD AHMAD KHAN---Appellant

versus

THE STATE---Respondent

Criminal Appeals Nos.262 of 1999, 393 of 1999 and Murder Reference No.201 of 1999, heard on 21st May, 2003.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Occurrence had taken place in broad daylight and F.I.R. was promptly lodged---Both eye-witnesses who deposed against the accused though were closely related to the deceased being his brother and maternal uncle, but they had no enmity whatsoever against the accused---Mere relationship of a witness with the deceased, was no criteria to discard his testimony if otherwise it was trustworthy--­Testimony of both prosecution witnesses had fully been corroborated by the medical evidence--Both said eye-witnesses could not be termed as chance witnesses for the reason that there was Mela and people in the village and even in cities do come to attend Mela and it was natural on the part of two eye-witnesses to have come to attend, Mela-Motive had been admitted by the accused in his statement under S.342, Cr.P.C:--­Prosecution had been successful in proving its case against accused up to the hilt beyond any shadow of doubt---Case against accused was of single shot and single shot alongwith other circumstances had been treated to be a mitigating circumstance---Conviction of accused was maintained, but sentence of death awarded to him was altered into imprisonment for life with benefit of S.382-B, Cr.P.C.

PLD 1996 -SC 122 ref.

M.Z. Babar Awan for Appellant.

f Miss Tasneem Amin with Sohail Dar, A.A. -G. for the State.

Tariq Ahmad Khan for the Complainant.

Date of hearing: 21st May, 2003.

2004 P Cr. L J 325

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD YASEEN---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 1208/13 of 2002, decided on 3rd June, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-A(i) & (ii)/337-F(i) (iii)/34---Bail, grant of---Accused and his co-accused, according to the F.I.R., had caused injuries on face, left foot and other parts of the body of the complainant---Accused also allegedly caused injuries on the right hand finger and palm of complainant- --Except injury on nose of the complainant, rest of injuries were simple in nature and same had not, been specified as to who had caused them---Allegations against accused and co-accused were .similar in nature ---Co-accused having already been granted bail, accused also deserved his release on bail on the principle of consistency---Accused was admitted to bail, in circumstances.

Khan Dil Muhammad Khan Arzai for Petitioner.

Khan Abdul Waheed Khan Tareen for the State.

Date of hearing: 3rd June, 2002.

2004 P Cr. L J 332

[Lahore]

Before Rustam Ali Malik, J

MUDASSAR SHAHZAD---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 8, Criminal Appeal No. 123/J and Criminal Revision No. 176 of 2001 decided on 5th June, 2003.

Penal Code (XLV of 1860)---

----Ss. 302(b)/109 & 302(b)---Appreciation of evidence---Statements of prosecution witnesses that they had seen and heard the accused requiring the principal accused to kill the deceased had remained uncorroborated and did not inspire confidence---Parties were admittedly inimical to each other and being not on visiting terms prior to the, occurrence, claim of complainant of having been called by the deceased for compromise did not appeal to reason---Eye-witnesses were chance witnesses and their presence at the scene of occurrence -was not established on record by any independent evidence---Motive on the part of accused to commit the offence was not proved---Crime empties and the rifle were sent to Forensic Science Laboratory after the recovery of the rifle---Prosecution evidence suffered from material contradictions and inconsistencies and did not inspire confidence at all---Accused were acquitted in circumstances.

Waseem Butt and Barrister Ch. M. Abdus Saleem for Appellant.

Sh. M. Shafique for the Complainant

Saifullah Khalid for the State.

Date of hearing: 5th June, 2003.

2004 P Cr. L J 345

[Lahore]

Before Khawaja Muhammad Sharif, J

QASIM alias NAEEM---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 134 of 2003 and Criminal Revision No.92 of 2002, heard on 11th November, 2003.

Penal Code (XLV of 1860)---

----Ss. 302(b)/148---Appreciation of evidence---Eye-witnesses were closely related to the deceased and were not the residents of the place of occurrence---Previous enmity existed between the parties---Possibility of false implication of accused in the case, thus, was not ruled out---Five co-accused in the case had been acquitted by the Trial Court and the appeal filed by the complainant against their acquittal had also been dismissed by the High Court--Case of accused was at par at least with the case of three acquitted co-accused and no independent corroboration, either in the shape of motive or positive report of the Fire-arms Expert, was available on record against him---No crime empty was recovered from the spot---Deceased was involved in. many criminal cases ---Accused was acquitted on the rule of consistency in circumstances.

1994 SCMR 1148 and 1995 SCMR 599 ref.

Raja Muhammad Anwar for Appellant.

Abdur Rehman Khalil for the Complainant.

S.D. Qureshi for the State.

Date of hearing: 11th November, 2003.

2004 P Cr. L J 352

[Lahore]

Before Khawaja Muhammad Sharif, J

NASRA---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.373, 1002 and Criminal Revision No.247 of 2002, heard on 10th November, 2003.

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

----S. 302(b)---Appreciation of evidence---Case of accused was similar and at par with the case of acquitted co-accused---Appeal against the Acquittal of said co-accused had been dismissed by High Court---Accused according to F.I.R. was armed with a 7 mm rifle but during investigation 8 mm licensed rifle was recovered from him---Accused was acquitted on the rule of consistency accordingly.

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

----Ss. 302(b) & 337-F(iii)----Appreciation of evidence---Accused had not caused any injury to the deceased but had allegedly caused only one injury to the prosecution witness who did not even appear before the Trial Court---On the basis of abscondence alone conviction of accused could not be maintained in the absence of other sufficient material on record to convict him with the commission of offence---Accused was acquitted on benefit of, doubt in circumstances.

1998 SCMR 198 eel.

Rab Nawaz Niazi for Appellant.

Saleem Shad for the State.

Date of hearing: 10th November, 2003.

2004 P Cr. L J 361

[Lahore]

Before Raja Muhammad Sabir and Sh. Abdur Rashid, JJ

RIASAT ALI --- Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.297 of 2001, heard on 30th September, 2003.

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

----Arts. 3/4---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Criminal Procedure Code (V of 1898), S.342---Appreciation of evidence---Prosecution evidence was silent about the fate of narcotics allegedly recovered from the accused---Was not known as to where said narcotics were kept by the police in Malkhana and same had not been produced in the Court during trial---Unless the recovered narcotics were produced in Court it could not be found that accused was carrying them on his person and were recovered from him---Non-production of case property in the Court was fatal to prosecution case and would destroy its very foundation---Report of Chemical Examiner which had declared contents of sample in sealed parcels- to be that of opium and Charas, was main incriminating material against accused and was also a basis of prosecution case, but said report had not been put to accused in his statement under S.342, Cr.P.C.---Accused thus, had not been afforded an opportunity to explain the said incriminating evidence appearing against him---Where an incriminating piece of evidence was not put to accused in his statement under S.342, Cr.P.C. then it could not be read against him for his conviction---If said report was discarded, 'then prosecution was left with no case against the accused---Prosecution having failed to prove its case against accused, order of conviction and sentence passed against him, was set aside and he was acquitted of the charge against him.

M. Iqbal Bhatti for Appellant.

A.H. Masood for the State.

Date of hearing: 30th September, 2003.

2004 P Cr. L J 385

[Lahore]

Before Bashir A. Mujahid, J

MUHAMMAD ASHRAF‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Revision No.494 of 2003, decided on 23rd June, 2003

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 540, 173 & 439‑‑‑Summoning of Court witnesses‑‑‑Revision petition‑ ‑‑Report under S.173, Cr.P.C. was submitted and two Police Officers who partly investigated the case, were cited as prosecution witnesses in calendar of witnesses in the said report‑‑‑Said witnesses were given up by prosecution, but on application of accused they were summoned to be examined as Court‑witnesses‑‑‑Order had been challenged by prosecution on ground that the Police Officers as Investigating Officers declared the accused innocent without arresting them and without associating them in 'investigation, without any legal justification‑‑‑Order of Trial Court calling said police officials as Court-­witnesses by allowing application of accused, was fully in accord with the law‑‑‑If the said police officials were examined as Court‑witnesses, complainant would also have a right to cross‑examine the witnesses and his case was not to be prejudiced in any manner‑‑‑Trial Court having rightly exercised its discretion for just decision of the case, no interference in revision was called for.

Feroze Din v. Bahadur Ali 1991 CLC 2110; Painda Gul and another v. The State and another 1987 SCMR 886; Nazir Ahmad and 2 others v. The State 2001 MLD 1585; Khadim Hussain v. The State 2000 YLR 1562; Haji Rasheed Ahmad and 2 others v. The State 1998 2059; Moonda and others v. The State PLD 1958 SC (Pak.) 275; Ali and 2 others v. The State 1992 SCMR 2055; Muhammad others v. The State 1997 .Law Notes 626 and Bashir Ahmad v. 1988 MLD 2435 ref.

Khawaja Mehmood Ahmad for Petitioner.

Ch. Farooq Haider for the State

Najeeb Faisal Chaudhary, Addl. A.‑G

2004 P Cr. L J 387

[Lahore]

Before Rustam Ali Malik, J

ABDUR RAUF‑‑‑Petitioner

versus

THE STATE and another‑‑‑Respondents

Writ Petition No 5325 of 2002, decided on 27th June, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 155, 156 & 173‑‑‑Penal Code (XLV of 1860), Ss.420/468/471­Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition­-Quashing of F.I.R.‑‑‑Investigation in cognizable and non‑cognizable offences‑‑‑Petitioner/accused had contended that Investigating Officer having conducted investigation without permission of Magistrate had violated provisions of S.155(2), Cr.P.C. and had prepared report under S.173, Cr.P.C. against law‑‑‑Plea of petitioner was that entire investigation conducted in the case was liable to be quashed as Investigating Officer was' not competent to investigate case without permission of Magistrate as offences under Ss.468/471, P.P.C. against him were .non‑cognizable‑‑‑Validity‑‑‑Case against petitioner/ accused was not only registered under Ss.468/471, P.P.C. but under S.420, P.P.C. which was clearly cognizable offence‑‑‑When a case was registered against accused relating to facts entailing commission of both cognizable and non‑cognizable offences, provisions of S.155(2), Cr.P.C. would not attract and police could investigate such a case without permission of the Magistrate‑‑‑Petition seeking order for quashing the F.I.R. in question against petitioner and proceedings based thereon, being without any basis was dismissed, in circumstances.

Peroo v. The State 1982 PCr.LJ 795; Hussain Bakhsh v. The State PLD 1963 (W.P.) Lah. 46; Qudrat Hussain v. The State 1996 PCt.LJ 735; Muhammad Aslam v. The State 1993 PCr.LJ 205 and Muhammad Jamil v. S.H.O. and others 1998 PCr.LJ 1718 ref.

Barkat Ali Chaudhry for Petitioner.

Akbar Tarar, Addl. A.‑G.

Date of hearing: 27th June, 2003.

2004 P Cr. L J 391

[Lahore]

Before Mian Muhammad Jehangir, J

Ch. WAZIR ALI ‑‑‑Petitioner

versus

SAUD AZIZ‑‑‑Respondent

Criminal Original Nos.406/W in 13/W of 2003 in Writ Petition No. 14165 of 2002, decided on 16th June, 2003.

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

‑‑‑‑Ss. 3/4‑‑‑Constitution of Pakistan (1973), Art.204‑‑‑Criminal Procedure Code (V of 1898), Ss. 154 & 157‑‑‑Contempt of Court‑‑­Petitioner in his earlier Constitutional petition had alleged that police employee while apprehending his son broke his legs by assaulting and giving him physical beating‑‑‑Petitioner was asked by the High Court in the said petition to provide the copy of said Constitutional petition to S.S.P. concerned who would proceed in the matter strictly in accordance with law‑‑‑Petitioner approached the S.S.P. who did not register case, but ordered inquiry into the allegations as .provided under S.1'57(I), Cr.P.C.‑‑‑Petitioner considering said conduct of S,S.P. as contempt of Court for not complying with the order of High Court passed in earlier Constitutional petition moved petition for contempt of Court against the S.S.P.‑‑‑Injuries on the person of son of the petitioner having not been denied, local police first of all should proceed in the matter under S.154, Cr.P.C. and thereafter, if information provided by the petitioner/ complainant was found false, case should have been cancelled and proceedings against complainant, should have been, initiated in accordance with law as directed by High Court in its order passed in earlier Constitutional petition‑‑‑Proceedings under Contempt of Court Act, 1976 could be initiated in case of non‑compliance of the order of the High Court.

Ch. Muhammad Arshad Ramay for Petitioner.

2004 P Cr. L J 394

[Lahore]

Before M. Naeemullah Khan Sherwani, J

JAVAID‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 3615/B of 2003, decided on 11th July, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/34‑‑‑Bail, grant of‑‑­Further inquiry‑‑‑Conflicting opinions of Investigating Officers‑‑­Motive‑‑‑Omission of material facts‑‑‑Night time occurrence ‑‑‑ F.I.R. was registered about four hours after the occurrence‑‑‑Facts stated in F.I.R. were not supported by two other persons who were also sleeping at the place of occurrence‑‑‑Accused was found innocent in first three investigations but was declared guilty in the fourth investigation‑‑­Effect ‑‑‑Opinion expressed by police regarding guilt or innocence of the accused was no evidence in the case, yet it had made prosecution case needing further inquiry about its veracity‑‑‑Whenever there were conflicting opinions furnished by police, benefit of the same was allowed to the accused‑‑‑Motive was just a piece of evidence and not an element of crime‑‑‑Omission of material fact had cast serious doubt upon veracity of prosecution story and the allegations against the accused called for further probe‑‑‑Bail was allowed in circumstances.

Hafiz Muhammad Hanif Raza for Petitioner.

Miss Zarqa Bashir for the State.

2004 P Cr. L J 397

[Lahore]

Before Bashir A. Mujahid, J

MUHAMMAD HAYAT‑‑‑Petitioner

versus

SABIR SULTAN, ADDITIONAL SESSIONS JUDGE and others‑‑‑Respondents

Criminal Revision No.472 of 2003, decided on 3rd July, 2003.

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

‑‑‑‑Ss. 4(c) & 221‑‑‑'`Charge"‑‑‑Meaning and purpose‑‑‑Charge was precise formation of specific accusation made against a person who was entitled 'to know its nature at the earliest stage‑‑‑Purpose of a charge was to tell an accused as precisely and concisely as possible the matter in which he was charged and must convey to him with sufficient clearances and certainty what the prosecution intended to prove against him and of which he would have to clear himself.

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

‑‑‑‑Ss. 227, 228, 229 & 231‑‑‑Penal Code (XLV of 1860), Ss.302/34/ 109/ 148/ 149‑‑‑Altering charge and recalling of witnesses‑‑‑Constitutional petition by complainant for early conclusion of trial in the case‑‑‑High Court called report from the Trial Court and on receiving report, High Court directed the Trial Court to conclude trial within specified period‑‑­Trial Court, during pendency of said Constitutional petition altered charge and instead of S.34, P. P. C., Ss.148/149, P. P. C. were mentioned in the charge and re‑summoned the prosecution witnesses‑‑‑Application of complainant with the request to continue with the trial without recalling witnesses was dismissed by Trial Court‑‑‑Validity‑‑‑Time, date and place of occurrence and accused in original charge as well as in amended charge were the same‑‑‑Mere difference in original charge and in amended charge was of addition of Ss.148/149, P.P.C.‑‑‑After amendment in the charge no one had requested the Trial Court to summon the witnesses already examined by Trial Court‑‑‑Witnesses recalled by Trial Court were formal in nature‑‑‑Only chief examination of material witnesses/eye‑witnesses had been recorded and. they were yet to be cross‑examined by defence‑‑‑Neither case of accused nor of prosecution was prejudiced as a result of Trial Court having proceeded with trial without recalling witnesses, in circumstances‑‑‑Early conclusion of trial was not only the right of accused, but also of complainant‑‑‑Order of Trial Court was set aside.

Nadir Shah v. State 1980 SCMR 402; Muhammad Afzal v. State 1990 SCMR 267; Muhammad Bakhsh v. State 1968 PCr.LJ 1901; S. Hifazat Hussain v. The State 1987 PCr.LJ 403; Ghulam Muhammad Lutfee v. The. State 1986 PCr.LJ 1236; Syed Deedar Ali v. State 1987 MLD ‑1509 and Noor‑ul‑Islam Azeezi v. Crown PLD 1950 Dhaka 9 ref.

Mian Muhammad Sikandar Hayat for Petitioner.

Masood Mirza for Respondents.

Miss Afzala Qureshi for the State.

2004 P Cr. L J 401

[Lahore]

Before Khawaja Muhammad Sharif, J

AURANGZEB‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.456 of 2002, heard on 19th June, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 308‑‑‑Appreciation of evidence‑ ‑‑Deceased in her dying declaration had fully implicated accused in the case‑‑‑Dying declaration recorded by police official was attested by Doctor who also verified that deceased at the relevant time was fit to make statement‑‑‑No reason whatsoever was there to falsely implicate accused either by the deceased or prosecution witnesses‑‑‑Ocular account in the case was fully corroborated by medical evidence and also by dying declaration of the deceased‑‑‑If both versions one put forward by accused in his statement recorded under S.342, Cr.P.C. and other put forward by prosecution, were placed in a juxtaposition then version of prosecution seemed to be more plausible, convincing and nearer to truth than the version of the accused which appeared to be totally false‑‑‑Prosecution having proved its case against accused through .dying declaration, and statements of prosecution witnesses which were corroborated by medical evidence, appeal against conviction and sentence filed by accused, was dismissed.

Muhammad Afzal Lone for Appellant.

Muhammad Sharif Cheema for the State.

Date of hearing: 19th June, 2003.

2004 P Cr. L J 406

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

MUHAMMAD ASLAM‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.487/B of 2003, decided on 24th September, 2003. "

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/109/34‑‑‑Bail, grant of‑‑‑Further inquiry ‑‑‑F.I.R. revealed that complainant and prosecution witnesses found the accused alongwith an unknown person running away from the Dera of deceased, but during investigation no other person had been challaned‑‑‑None, according to F.I.R. had seen the accused causing injuries on the person of deceased‑‑‑Occurrence had allegedly taken place at 4‑00 a.m. and complainant had not mentioned any source of light in the F.I.R.‑‑‑Case against accused, in circumstances, was that of further inquiry‑‑‑Trial Court had accepted application of accused in which he had prayed that he being aged about 16‑1/2 years at the time of occurrence, should be tried under Juvenile Justice System Ordinance, 2000‑‑‑Trial Court had declared the accused as juvenile and his case had been separated for trial‑‑‑Accused was in judicial lock‑up since his arrest and his case was fixed for framing the charge after about one and half years‑‑‑Accused was admitted to bail, in circumstances.

Mian Muhammad Tayyib Wattoo for Petitioner.

Mirza Muhammad Azam for the Complainant.

Mirza Muhammad Nadeem Asif for the State.

2004 PCr.LJ 414

[Lahore]

Before Asif Saeed Khan Khosa, and Ch. Iftikhar Hussain, JJ

LIAQAT ALI alias KAKKA and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 1306, 1305 and Murder Reference No.97‑T of 2002, decided on 14th October, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b)/109 & 324‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7(a)‑‑‑Appreciation of evidence‑‑‑Accused were proved on record to be confined in Jail at the relevant time after having been duly arrested in some other criminal case‑‑‑Reasons prevailing with Trial Court for convicting the accused for providing behind the scene abetment, were nothing but conjectures based upon surmises 'without any evidence brought on record‑‑‑Trial Court on the one hand had convicted the accused for abetting their co‑accused regarding the murders, but on the other hand had convicted the same accused under S.324, P.P.C. for actually causing injuries to the injured witnesses in this case at the spot, which findings were mutually incompatible and destructive of each other‑‑‑Trial Court, in its zeal to convict the accused against whom it probably felt morally convinced, had outrun its discretion and travelled beyond the record of the case by diving deep into the realm of conjectures without realizing that such an approach ran counter to the ends of justice which it was apparently motivated to foster‑‑‑Accused were acquitted in circumstances.

Rana Ijaz Ahmad Khan and Kh. Wasim Abbas for Appellants.

Muhammad Sohail Dar, Asstt.,A.‑G. for the State.

Date of hearing: 14th October, 2003.

2004 P Cr. L J 422

[Lahore]

Before Abdul Shakoor Paracha, J

ABDUL QAYYUM‑‑‑Appellant

versus

AZIZ‑UR‑REHMAN SHAH and another‑‑‑Respondents

Criminal Appeal No. 170 of 2001, decided on 1st October, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 417(2‑A)‑‑‑Pakistan Criminal Law Amendment Act (XL of 1958), S. 10‑Prevention of Corruption Act (II of 1947), S.5‑‑‑Penal Code (XLV of 1860); S.161‑‑‑Appeal against acquittal‑‑‑Maintainability‑‑‑Accused was Secretary, Union Council and was tried by Special Judge Anti-­Corruption and ultimately acquitted‑‑‑Complainant had challenged the acquittal of accused under S.417(2‑A), Cr.P.C.‑‑‑Held, for filing an appeal against acquittal passed by the Special Judge, direction by the Federal Government to the Public Prosecutor to present appeal before the High Court was a condition precedent and unless the appeal was filed by the Public Prosecutor on the direction of the Federal Government, the same was not entertainable‑‑­Provisions of Pakistan Criminal Law Amendment Act, 1958, were to prevail upon the provisions of Criminal Procedure Code, 1898, which was a general law‑‑‑Appeal filed by the complainant against acquittal of accused, thus, was not maintainable and the same was dismissed accordingly.

Rasool Khan and 9 others v. Haji Banaras Khan and 5 others 2002 PCr.LJ 286; Hazoor Bakhsh v. Riaz Ali Abbassi and another PLD 2063 Kar. 340; Utility Store Corporation, Government of Pakistan through Regional Manager, Utility Store Corporation, Rawalpindi Region, Model Town, Islamabad v. Muhammad Nazir Khan 2003 PCr.LJ 185; Ashiq Muhammad and another v. Khuda Bakhsh and others PLD 1998 Pesh. 68; Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan v. Syed Bazlur Rahman and others PLD 1960 Dacca 200 and State v. Muhammad Hussain PLD 1968 SC 265 ref.

Sardar Abdul Raziq Khan for Appellant.

Ch. Saleem Murtaza Mughal for Respondent.

Zafar Abbas Mir, State Counsel.

2004 P Cr. L J 428

[Lahore]

Before Ali Nawaz Chowhan, J

EVON DILBAR‑‑‑Petitioner

versus

INNOCENT DILBAR FEROZE and another‑‑‑Respondents

Criminal Miscellaneous 'No.75/Q of. 2003, decided on 18th November 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 561‑A‑‑‑Penal Code (XLV of 1860), S.182‑‑‑Quashing of proceedings‑‑‑Prosecution had not produced its evidence despite many dates were given for the purpose and the Magistrate kept on adjourning the case‑‑‑Application moved by the accused under S.249‑A, Cr.P.C. was even not decided by the Court for a whole year and the same was still pending‑‑‑Trial Court without giving a show‑cause notice had recalled the bail order passed in favour of accused when she did not appear in Court only on one date, forgetting about its own working and the delay which it was itself causing‑‑‑Magistrate had put the prosecution in an advantageous position and the accused in a disadvantageous position throughout and kept on postponing her application under S.249‑A, Cr.P.C. despite being oblivious of her hardships' and sufferings‑‑‑Case against accused was a classical example of inaction and abuse of power by the Trial Court and the torturous and unending proceedings pending therein deserved to be quashed in the absence of any proof forthcoming on behalf of the prosecution‑‑‑Proceedings were quashed accordingly.

Ms. Ayila Abbas Mirza for Petitioner.

Raja Ayub Kiani for the State.

2004 P Cr. L J 440

[Lahore]

Before Bashir A. Mujahid, J

TAJ MUHAMMAD and 3 others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.608, 714, 715 and Criminal Revision No.302 of 2001, heard on 22nd September, 2003.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(0), 308, 364, 109 & 34‑‑‑Appreciation of evidence‑‑‑Accused claiming themselves to be minors at the time of occurrence and stressing that their trial with adult co‑accused stood vitiated, had not moved the Trial Court for separation of their trial, which had already taken a lenient view while convicting them under S.308, P.P.C. instead of 5.302, P.P.C.‑‑‑No prejudice, thus, had been caused to the said accused by the joint trial and no useful purpose could be served by remanding the case for retrial at such belated stage‑‑‑Objection raised on behalf of the accused, therefore, was overruled‑‑‑Complainant had fully explained the delay in lodging the F.I.R.‑‑‑Prosecution case was based on circumstantial evidence comprising mainly of the last‑seen evidence‑‑­Prosecution witnesses, though closely related to the complainant and to the deceased, had no previous enmity against the accused for their false implication in the case‑‑‑Prosecution witnesses were consistent in their statements regarding the deceased having been seen for the last time in the company of the accused, who were truthful witnesses and their testimony was fully corroborated by medical evidence and the recovery of the dead body‑‑‑Convictions and sentences of accused were maintained in circumstances‑‑‑Since acquittal of accused under S.302; P.P.C. was not challenged by the complainant or prosecution, sentences awarded to accused were ordered to run concurrently with benefit of S.382‑B, Cr.P.C.

The State v. Manzoor Ahmad PLD 1966 SC 664 and Rehmat alias Rahman alias Waryam alias Badshah v. The State PLD 1977 SC 515 ref. '

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b), 364, 109 & 34‑‑‑Appreciacion of evidence‑‑‑Accused were fathers of co‑accused and were not nominated in the F.I.R.‑‑­Complainant had implicated the accused in his supplementary statement‑‑­No evidence had been brought on the record by the prosecution to link the accused with the commission of the crime‑‑No evidence of abetment had been recorded during the trial‑‑‑Mere pointation of place of burial of the dead body by one accused or recovery of "Kassi" at the instance of other accused did not connect them with the murder of the deceased‑‑‑Accused were acquitted on benefit of doubt in circumstances.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Motive‑‑‑Motive is not essential for commission of crime as even without motive people take lives of others‑‑‑Absence or weakness of the motive is no ground for awarding lesser penalty.

Manzoor Hussain Basra for Appellants.

Muhammad Yousaf Asim for the Complainant.

'Ms. Iram Sajjad Gill for the. State.

Date of hearing; 22nd September, 2003.

2004 P Cr. L J 452

[Lahore]

Before Asif Saeed Khan Khosa and M. Bilal Khan, JJ

ZAKAULLAH and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.1274, Criminal Revision No.778 and Murder Reference No.549 of 2000, heard on 2nd December, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)/34‑‑‑Appreciation of evidence‑‑‑Glaring contradiction existed between ocular account and medical evidence‑‑‑Gum allegedly recovered from the accused was not sent to Forensic Science Laboratory‑‑‑No crime‑empty was recovered from the place of occurrence and no matching report was available on the record‑‑‑Motive as alleged in the F.I.R. was far‑fetched and was not believable‑‑­Occurrence had taken place at night and the medical opinion that the injuries on the person of the deceased could have been caused by one fire shot, had raised serious doubt qua the culpability of the accused‑‑‑Benefit of doubt was extended to the accused and he was acquitted accordingly.

Ch. Muhammad Afzal Wahlah for Appellants.

Ms. Iram Sajjad Gull for the State.

Date of hearing; 2nd December, 2003.

2004 P Cr. L J 464

[Lahore]

Before Maulvi Anwarul Haq, J

Ch. MUHAMMAD ASIF‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.500/B of 2003, decided on 1st September, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S: 498‑‑‑Penal Code (XLV of 1860), Ss.380/409‑‑‑Banking Tribunals Ordinance (LVIII of 1984), Ss.2(d) & 5(6)‑‑‑Bail, grant of‑‑‑Jurisdiction of Banking Court‑‑‑Scope‑‑‑Allegation against accused was that because of his alleged act, the complainant had been deprived of property kept in the locker of the Bank‑‑‑Locker in question had been rented out by Bank to complainant lady and her articles lying in said locker were found stolen‑‑‑Bank had not undertaken any obligation regarding safe keeping of goods lying in the locker‑‑‑Bank and for that matter, prima facie, accused who was employee of the Bank, could not have the knowledge of contents of the locker‑‑‑No loss had been caused to the Bank and Bank had not come forward with any allegation against accused‑‑‑Contents of F.I.R., in circumstances, did not constitute a scheduled offence as defined in S.2(d) of Banking Tribunals Ordinance, 1984 and Special Court appointed under the said Ordinance, would not be having jurisdiction in the matter‑‑‑Interim bail granted to accused was vacated and withdrawn and he was directed to appear before Sessions Judge with appropriate application for grant of bail which application, if filed, would be decided in accordance with law after hearing all concerned.

M.A. Rashid v. The State 1996 PCr.LJ 1279 and Ali Hussain and 2 others v. Presiding Officer, Special Court for Offences in Respect of Banks, Karachi and 3 others PLD 1989 Kar. 157 ref.

Sardar Asmat Ullah Khan and Taufiq Asif for Petitioner.

Sardar M. Ashfaq Abbasi for the Complainant.

Sher Zaman Bhatti for the State.

2004 P Cr. L J 470

[Lahore]

Before Sh. Hakim Ali, J

IMTIAZ ALI ‑‑‑Petitioner

versus

DISTRICT POLICE OFFICER and others‑‑‑Respondents

Writ Petition No.3890 of 2003/BWP, decided on 6th January, 2004.

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

‑‑‑‑S. 154‑‑‑Penal Code (XLV of 1860), 5.302/34‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Recording of second F.I.R. after quashing the first F.I.R.‑‑‑Complainant had sought the recording of an F.I.R. regarding the occurrence as set down by him in his application attached with the Constitutional petition and the quashment of the earlier F.I.R. recorded by the S.H.O. of the police station concerned under S.302/34, P.P.C., allegedly upon his statement‑‑‑Both the parties were sticking to their versions and the case had become of two versions i.e. "police versus informant"; it was, therefore, essential that both the said versions should remain on the record for decision by the Court as to which of them was reported correctly by the complainant‑‑‑Said controversy being within the ambit of factual inquiry could not be decided by the High Court and even otherwise any verdict in this regard by the High Court could prejudice the case of either party ‑‑‑Quashment of the first F.I.R. already recorded by the police would deprive the Investigating Agency as well as the persons involved therein or in the second F.I.R. from its beneficial use‑‑­Matter was, thus, left open for adjudication by a competent Court where the parties would be at liberty to prove the truth or falsehood of the earlier and subsequent .F.I.Rs. and the fact whether the earlier F.I.R. was also got registered by the complainant or not‑‑‑Police was directed to record the second F.I.R. as reported by the complainant in his writing and to investigate both the versions, which was necessary for fixing the responsibility‑‑‑Constitutional petition was disposed of with the aforesaid observations and directions.

Wajid Ali Khan Durrani and others v. Government of Sindh and others 2001 SCMR 1556; Muhammad Anwar,' Sub‑Inspector, Railway Police, Lahore v. Station House Officer, Railway Police, Kasur and 2 others PLD 1999 Lah. 50; Mulazim Hussain, Inspector/S.H.O., Police Station Waris Khan, Rawalpindi and another v. Maulana Abdul Jalil PLD 1999 Lah. 39; M. Anwar, Barrister‑at‑Law v. the Station House Officer, Civil Line Police Station, Lahore and another PLD 1972 Lah. 493; Muhammad Ishaque v. S.P., Jaffarabad and another PLJ 1998 Quetta 1; Abbas Ali v. The State and another 2000 YLR 1591; Muhammad Ilyas v. S.H.O., Police Station Baddomalhi, District Narowal and 3 others 1997 MLD 1527; Malik Muhammad Anwar Khan v. The State and 4 others 1988 PCr.LJ 986; Dilbar Hussain and others v. Riasat Javed Bajwa, S.H.O., Ferozewala and others 1994 MLD 1736 and Kaura v. The State and others 1983 SCMR 436 ref.

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

‑‑‑‑Ss. 154 to 173‑‑‑Information to the police and their powers to investigate‑‑‑Summary‑‑‑By laying an information law is set in motion and the police comes into action, sites are inspected, persons are interrogated, statements are recorded, evidence is collected, accused are arrested, innocents are discharged while guilty are sent up to the Court concerned to face the trial.

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

‑‑‑‑S. 154‑‑‑Registration of second F. I. R. ‑‑‑Registration of a second F.I.R. by the police is not barred by any provision of the Code of Criminal Procedure‑‑‑Propriety, however, demands that there should be only one first information report to move the police, but the different course can only be adopted in exceptional circumstances by order of the superior Courts.

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

‑‑‑‑S. 154‑‑‑Information in cognizable cases‑‑‑Second F.I.R.‑‑‑In the multifaceted versions, especially when the first reported version is denied, the latter version can be taken into consideration through its registration to fix the responsibility upon the informant.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Other adequate remedy‑‑‑Complaint' would not be an efficacious or effective remedy in cases of recovery of weapons of offence, articles of theft, robbery or dacoity or any such necessity when police action is found necessary in a case.

Muhammad Yaqub Khan for Petitioner.

Ahmad Mansoor Chishti, A.A.‑G. assisted by Mian Muhammad Mohsin Rasheed for Respondents Nos. l and 2.

A.R. Tayyib for Respondents Nos.4 to 6, 9 and 10.

Date of hearing: 23rd December, 2003.

2004 P Cr. L J 476

[Lahore]

Before Khawaja Muhammad Sharif, J

ATTA MUHAMMAD ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1337 and Criminal Revision No.978 of 2002, heard on 10th November, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Real brother of the deceased while appearing as Court‑witness had not supported the complainant's version‑‑‑Prosecution witnesses alleged to be present at the scene of occurrence had kept mum for nine months‑‑‑Accused having been`cl6sely related to the main accused, who had been attributed injuries on the person of the deceased, possibility of his false implication in the case could not be ruled out ‑‑‑Co‑accused armed with a Sota had been acquitted by the Trial Court and case of accused who did not commit any overt act qua the deceased was on a better footing than his case‑‑‑No evidence was available on record to connect the accused with the murder of the deceased‑‑‑Accused was acquitted on benefit of doubt in circumstances.

Shamim Abbas Buh :uri for Appellant.

Muhammad Khan Ranjha and Malik Waseem for the Complainant.

Bashir Ahmad Gill for the State.

Date of hearing:, 10th November, 2003.

2004 P Cr. L J 482

[Lahore]

Before Asif Saeed Khan Khosa and M. Bilal Khan, JJ

EHSANULLAH ‑‑‑ Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.803 and 805 of 1999, Criminal Revisions Nos.46 and 63 of 2000 and Murder Reference No.355 of 1999, heard on.9th December, 2003.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b)/34 & 379‑‑‑Appreciation of evidence‑‑‑Eye‑witnesses besides being closely related to the deceased were also chance witnesses and in view of the material contradictions in their statements their presence at the scene of occurrence was highly doubtful‑‑‑Recovery of incriminating articles from the accused had already been discarded by the Trial Court for valid and convincing reasons‑‑‑No independent witness was associated ‑with the recovery proceedings in violation of S.103, Cr.P.C.‑‑‑Medical evidence was contradictory to ocular testimony‑‑‑Mere fact that the complainant had no apparent reason for false implication of accused was not, by itself, sufficient to maintain their conviction and sentence‑‑‑Prosecution was bound to prove its case beyond any reasonable doubt‑‑‑Prosecution story was shrouded in mystery and was full of doubts appearing at every step‑‑‑Even otherwise, when the substantive evidence in the shape of eye‑witness account was not free from doubt, then the corroborative evidence of recovery etc., even if plausible, was of no avail to the prosecution‑‑‑Accused were extended the benefit of doubt and acquitted in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)/34‑‑‑Appreciation of evidence‑‑‑Principles‑‑‑When the eye­witness account is not free from doubt, then the corroborative evidence of recovery etc., even if plausible, is of no avail to the prosecution.

Gohar Razzaq Awan for Appellant.

Sanaullah Khan Gandapur, Syed Iqbal Hussain Shah Gillani and Muhammad Ehsan Wyne for the Complainant.

Shehzad Saleem Khawaja for the State.

Date of hearing: 9th December, 2003.

2004 P Cr. L J 492

[Lahore]

Before Ch. Iftikhar Hussain, J

MUMTAZ HUSSAIN ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.5256/B of 2003, decided on 6th October, 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 alongwith his two brothers, mother and wife of one of his brother, had enticed away wife of complainant for Zina‑‑‑Accused by producing copy of Nikahnama issued by Registrar Union Committee, had claimed the alleged abductee as his legally‑wedded wife‑‑­Complainant also alleged the abductee to be his wife‑‑‑Alleged abductee appeared to have gone to the competent Family Court with suit for jactitation of marriage and she had filed certified copy of plaint of said suit‑‑‑Question that which of two Nikahs was correct or genuine, was a matter which needed inquiry‑‑‑Case against accused .was found false during investigation and report for cancellation of the same was prepared and also for discharge of accused, but same was not agreed to by the Magistrate‑‑‑Two of co‑accused stood acquitted by Trial Court under S.265‑K, Cr.P.C.‑‑‑Case against accused was open to further inquiry into his guilt and was covered under subsection (2) of S.497, Cr.P.C.‑‑‑Accused was previous non‑convict‑‑‑Accused was entitled to bail, in circumstances.

Ghulam Hussain Malik for Petitioner.

Sardar Zahid Gull for the State.

Khalid Masood Rana for the Complainant.

2004 P Cr. L J 497

[Lahore]

Before Khawaja Muhammad Sharif, J

MOHSIN ABBAS ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.353 and Criminal Revision No.343 of 2002, heard on 11th November, 2003.

Penal Code (XLV of 1860)

‑‑‑‑S. 302(b)/34‑‑‑Appreciation of evidence‑‑‑Accused was not named in the F.I.R.‑‑‑No identification parade was held in the case‑‑‑Complainant had not disclosed the source of his knowledge about the involvement of accused in the case in his supplementary statement‑‑‑Injury attributed to accused on the right arm of the deceased was a continuation wound of another injury attributed to another accused‑‑‑No crime‑empty having been recovered from the place of occurrence alleged recovery of the crime weapon from the accused was of no consequence in the absence of positive report of the Fire‑arms Expert‑‑‑Accused had no motive to commit the offence‑‑‑Benefit of doubt was extended to accused in circumstances and he was acquitted. accordingly.

Ch. Muhammad Amin Javed for Appellant.

.

Maqbool Ahmad Qureshi for the State.

Date of hearing. 11th November, 2003.

1. P Cr. L J 500

[Lahore]

Before Sh. Hakim Ali, J

SHERA‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1165 of 2003, decided, on 20th November, 2003.

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

‑‑‑‑S. 497‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4‑‑‑Bail, refusal of‑‑‑Accused was involved in more than eleven cases of the like nature and in some cases he even stood convicted and sentenced, but he did not leave his profession and continued with the same in an obstinate manner‑‑‑Court even in the offences which did not fall within the prohibitory clause of S.497(1), Cr.P.C. and were bailable, had the jurisdiction to refuse bail if such course of action was compulsive in nature and required to be adopted in such case‑‑‑Accused was a habitual offender and the‑repetition of the offence had marred the fate of his case‑‑‑Concession of bail could not‑be extended to the accused who had bad record to his score especially in cases where such concession was going to be misused‑‑‑Bail was declined to accused in circumstances.

Afzaal Ahmad v. The State 2003 SCMR 573 ref.

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

‑‑‑‑S. 497‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4‑‑‑Refusal of bail in bailable offence‑‑‑Court even in the offences which do not fall within the prohibitory clause of S.497(1), Cr.P.C. and are bailable, has jurisdiction to refuse bail of such course of action is compulsive in nature and requires to be adopted in such case‑‑­Concession of bail cannot be extended to a person having bad record to his score especially‑in those cases where the same is going to be misused.

Afzaal Ahmad v. The State 2003 SCMR 573 ref.

Ch. Muhammad Amjad Khan for Petitioner.

Kamran Ahmad Somra for the State.

2004 P Cr. L J 507

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD RAMZAN alias HEERA‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.6907/B of 2003, decided on 11th December, 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‑‑Allegations against the accused and co-­accused already admitted to bail mere identical‑‑‑Complainant was not an eye‑witness of the occurrence and she had lodged the F.I.R. on the information supplied by the eye‑witnesses who in their statements under S.161, CI.P.C. had saddled the accused and his said co‑accused with the same responsibility‑‑‑Case of accused was not distinguishable from that of his co‑accused and was pre‑eminently one of further inquiry within the meaning of S.497(2), Cr.P.C. and according to the rule of consistency he Was also entitled to bail‑‑‑Accused was admitted to bail accordingly.

Ch. Riaz Hussain Bhullar for Petitioner.

Asif Saeed for the State.

2004 P Cr. L J 509

[Lahore]

Before Khawaja Muhammad Sharif, J

BABAR MASIH‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.711 of 2002, heard on 10th November, 2003

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Three unknown persons were mentioned as accused in the F.I.R. without any description‑‑‑No identification parade was held in the case‑‑Occurrence was an unwitnessed one‑‑‑Pistol was allegedly recovered from the accused but no post‑mortem of the dead body of the deceased was conducted to prove that he had received a pistol shot‑‑‑Neither any crime‑empty was recovered from the spot nor any report of Fire‑arms Expert was available on record‑‑‑Extra‑judicial confession made by accused before three witnesses in police station in the presence of Police Officers had no evidentiary value‑‑‑Prosecution case was full of doubts benefit of which go to the accused not as a matter of grace but as a matter of Accused was acquitted in circumstances.

Muhammad Afzal Wahla for Appellant

A.H. Masood for the State

Date of hearing: 10th November, 2003

2004 P Cr. L J 514

[Lahore]

Before Asif Saeed Khan Khosa and M.A. Shahid Siddiqui, JJ

MUHAMMAD AKBAR and another‑‑‑Appellants

versus

THE STATE and another‑‑‑Respondents

Criminal Appeals Nos.663 and 810 of 2001, heard on 20th January, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Qanun‑e-Shahadat‑ (10 of 1984), Art. 113‑‑‑Criminal trial‑‑­Appreciation of evidence‑‑‑Accused had admitted to have killed the deceased in his statement under S.342, Cr.P.C.‑‑‑Two questions of paramount importance arise in a criminal case i.e. firstly as to who has committed the alleged crime and secondly, whether the person committing the crime had any legal or factual justification for committing the same‑‑‑Onus on the general issue regarding the first question is always on the prosecution but the moment an accused person admits committing the crime the said onus on the prosecution is discharged because by virtue of Art.113 of the Qanun‑e‑Shahadat, 1984, a fact which is admitted may not be proved.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302 & 100‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.121‑‑­Appreciation of evidence‑‑‑Plea of exercise of right of private defence‑‑­Burden of proof‑‑‑When an accused person advances a plea based upon any general or special exception contained in the Penal Code, 1860 the burden of proving the existence of circumstances bringing the case within such general or special exception is upon him and the Court is to presume the absence of such circumstances unless so proved by him‑‑‑Accused, in the present case, had failed to bring any circumstance on the record which could support his plea of exercise of right of private defence; he had only mentioned in his statement under S.342, Cr.P.C. that the deceased had brought a rifle for the purpose of committing his (accused's) murder but that rifle had been snatched by him and then used by the accused for killing the deceased resulting in his death ‑‑‑Validity‑‑­Mere asserting carrying a rifle by the deceased at the relevant time without any further ado could not possibly be treated by the accused to be an assault for the purpose of 5.100, P.P.C. so as to entitle him to cause the deceased's murder in exercise of right of private defence‑‑‑Principles.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 100 & 302‑‑Private defence, right to exercise‑‑‑Extent‑‑‑Accused, in the present case, having admitted killing the deceased had failed to advance any factual or legal justification for doing the same and plea in respect of exercise of his right of private defence was nothing but an afterthought meeting outright rejection‑‑‑Normal wages of a crime of murder was death and in circumstances the accused deserved no less‑‑­Appeal of accused was dismissed and his conviction and sentence recorded by the Trial Court were upheld and maintained with a clarification that the accused shall be deemed to have been convicted and sentenced under S.302(b), P.P.C. by way of Tazir and the sentence of fine passed against him by the Trial Court shall be treated as an order regarding payment of compensation by him under S.544‑A, Cr.P.C. to the heirs of the deceased failing which he shall suffer simple imprisonment for six months.

According to the provisions of section 100, P.P.C. a right of private defence of the body extends to the voluntary causing of death or any other harm to the assailant if the assailant launches an assault upon the accused and such assault has to be of the kind mentioned in the said provisions. An assault' has been defined in section 351, P.P.C according to which "whoever makes any gesture, or any preparation intending or knowing it to be likely that any such gesture or preparation will cause any person to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault". Mere assertion of carrying a rifle by the deceased at the relevant time without any further ado could not possibly be treated by accused to be an assault for the purposes of section 100, P.P.C. so as to entitle him to cause murder in exercise of right of private defence. It could well be that the deceased was carrying a rifle at the relevant time, if at all, for his own protection against a possible assault by the accused himself. In the present case there was not even an iota of evidence. brought on the record by the accused showing or even hinting at any aggression displayed by the deceased against him Witnesses who had claimed to be eye witnesses of the occurrence had not uttered even word in this regard. The accused had also failed to advance this plea during the investigation of the case and this was amply evident from the statement of the, Investigating Officer. In these circumstances the plea advanced by the accused in respect of exercise of his right of private defence had been found to be nothing but an afterthought meriting outright rejection. The accused had admitted killing the deceased and he has failed to advance any factual or legal justification for doing the same The normal wages of a crime of murder is death and to the circumstances of the present case the accused deserved no less. Appeal preferred by the accused was, therefore, dismissed and his conviction and, sentence recorded by the trial Court were upheld and maintained with a clarification that he shall be deemed to have been convicted and sentenced under section 302(b), P.P.C. by way of Ta'zir and the sentence of fine passed against him by the trial Court shall be treated as an order regarding payment of compensation by him under section 544‑A, Cr.P.C to the heirs of the deceasedfailing which he shall suffer simple imprisonment for six months.

(d) Penal Code‑ (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Criminal Procedure Code (V of 1898), 5.417‑‑‑Appeal against acquittal‑‑‑Medical report had revealed that all the fire‑arm injuries sustained by the deceased had been caused from the same angle arid a possibility could not be ruled out that the same had been caused by one and the same fire‑arm‑‑‑No weapon had been recovered from the acquitted accused's possession during the investigation and different police officers investigating the case had consistently opined about his innocence‑‑‑Benefit of doubt, in circumstances, was extended to the accused by the Trial Court with his resultant acquittal which was not found by the High Court to be open to any legitimate exception‑‑‑Appeal against acquittal of the accused was dismissed.

Rana Muhammad Arshid Khan for Appellant (in Criminal Appeal No.663 of 2001).

Abdul Wajid Malik for Appellant (in Criminal Appeal No.810 of 2001)

Abdul Wajid Malik for the State (in Criminal Appeal No.663 of 2001)

Rana Muhammad Arshid Khan for Respondent (in Criminal Appeal No.810 of 2001).

. Date of hearing: 20th January, 2004.

2004 P Cr. L J 522

[Lahore]

Before Khawaja Muhammad Sharif, J

KHALID MEHMOOD SIAL‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.957 of 2003, heard on 12th November, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 319‑‑‑Appreciation of evidence‑‑‑Occurrence having taken place in broad daylight and there being no previous background of enmity between the parties, no question of mistaken or false implication of accused could arise in the case‑‑‑Complainant had stuck to his version‑‑­Ocular testimony was corroborated by medical evidence‑‑‑Accused having taken a specific plea, onus lay upon him to prove the same which he had failed to do‑‑‑Trial Court had not given any cogent reason for converting the offence from S.302(b), P.P.C. to S.319, P.P.C. and neither the State nor the complainant had challenged the acquittal of accused under S.302(b), P.P.C.‑‑‑Conviction and sentence of accused were maintained in circumstances.

Muhammad Akbar Cheema for Appellant.

Ms. Aneela Bano for the State.

Date of hearing: 12th November, 2003.

2004 P Cr. L J 528

[Lahore]

Before Sh. Abdul Rashid, J

HABIB ULLAH and 2 others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.6894/B of 2003, decided on 3rd December, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/201/34‑‑‑Bail, grant of‑‑­Extra‑judicial confession allegedly made by the accused before the prosecution witnesses about one and a half years after the occurrence was the only incriminating material against them‑‑‑Accused, prima facie, had no necessity to go to the prosecution witnesses and to make the said confession before them after such a long time and even if it was so, it was highly improbable for the said witnesses to keep quiet for ten months‑‑‑Evidence linking the accused with the occurrence being a tainted one, their case needed further inquiry‑‑‑Accused were admitted to bail in circumstances.

M. Asghar Rokhri for Petitioners.

Muhammad Ameer Khan Niazi for the Complainant.

Ilyas Ghummat for the State.

2004 P Cr. L J 530

[Lahore]

Before Maulvi Anwarul Haq and Abdul Shakoor Paracha, JJ

SIKANDAR HAYAT and another‑‑‑Petitioners

versus

ALLAH DITTA and 9 others‑‑‑Respondents

Criminal Revision No. 157 of 2003, heard on 29th September, 2003.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34 & 309‑‑‑Criminal Procedure Code (V of 1898), S.345‑‑­Compromise ‑‑‑Accused had been convicted and sentenced by the Trial Court as Ta'zir‑‑‑One of the sons of the deceased alone had compromised with the accused foregoing his right of Qisas and without any compensation, whereas the widow of the deceased and other legal heirs who were major had denied having entered into any compromise with the accused‑‑‑Sessions Court, in circumstances, while acting in accordance with law had rightly dismissed the application of accused for setting aside their death sentence and imposing alternate sentence‑‑‑Revision petition was dismissed accordingly.

Federation of Pakistan v. Gull Hassan Khan PLD 1989 SC 633; Sh. Muhammad Aslam and another v. Shaukat Ali alias Shauka and others 1997 SCMR 1307; Muhammad Arshad alias Pappu v. Additional Sessions Judge, Lahore and 3 others PLD 2003 SC 547; Muhammad Saleem v. The State PLD 2003 SC 512 and Safdar Ali and others v. State and another PLD 1991 SC 202 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 309 & 302/34‑‑‑Criminal Procedure Code (V of 1898), S.345‑‑­Compromise‑‑Where punishment has been imposed on the accused by way of Ta'zir, the matter can be compromised only in terms of S.345, Cr.P.C. i.e. when all the heirs/Walis of the deceased had entered into compromise.

Federation of Pakistan v. Gull Hassan Khan PLD 1989 SC 633; Sh. Muhammad Aslam and another v. Shaukat Ali alias Shauka and others 1997 SCMR 1307; Muhammad Arshad alias Pappu v. Additional Sessions Judge, Lahore and 3 others 2003 PLD SC 547; Muhammad Saleem v. The State PLD 2003 SC 512 and Safdar Ali and others v. State arid another PLD 1991 SC 202 ref.

Ch. Fawad Hussain for Petitioners.

Tanvir Iqbal, A.A.‑G. for the State.

Dates of hearing: 18th and 29th September, 2003.

2004 P Cr. L J 537

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD RAMZAN alias PHANNA‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.472, 481 and Criminal Revision No.462 of 2002, heard on 12th November, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)/34‑‑‑Appreciation of evidence‑‑‑" Last seen" evidence was of no help to prosecution as the prosecution witnesses did not know the person who had taken the deceased with .him from his shop‑‑‑Fair identification parade having not been held by the prosecution, the objection of accused of having been shown to the witnesses by the police had assumed significance and the same could not be used against him‑‑­Extra‑judicial confession allegedly made by accused after five months of the incident was doubtful, particularly when the witnesses were neither related to the complainant nor they had any influence over the police to let him off from the case‑‑‑Medical evidence was unable to lend any corroboration to the said extra‑judicial confession of the accused‑‑­Accused having not been linked with the motorcycle by the prosecution, its recovery also did not give any support to his confession‑‑‑Ballistic Expert's report being in the negative, recovery of the crime weapons from the accused was not of any consequence‑‑‑Benefit of doubt was extended to the accused in circumstances and they were acquitted accordingly.

Kirir v. State PLD 1996 Kar. 246 ref.

Muhammad Khalid Arshad for Appellant (in Criminal Appeal No.472 of 2002).

Rana Muhammad Arshad Khan for Appellant (in Criminal Appeal No.481 of 2002).

Muhammad Iqbal Bhatti for, Petitioner/Complainant (in Criminal Revision No.462 of 2002).

Ms. Rabia Bajwa for the State (in Criminal Appeal No.472 of 2002)

Sh. Khalid Habib for the State (in Criminal Appeal No.481 of 2002) and for Respondent No.3 (in Criminal Revision No.462 of 2002).

Dates of hearing: 11th and 12th November, 2003.

2004 P Cr. L J 545

[Lahore]

Before Khawaja Muhammad Sharif, J

MOEEN BUTT‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.4871/B of 2003, decided on 23rd September; ' 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑.Penal Code (XLV of 1860), . S.302/34‑ ‑Bail –Medical evidence was in conflict with ocular evidence‑‑‑Nothing, incriminating was recovered from the accused during police investigation‑‑‑No motive for the occurrence was attributed to accused‑‑‑Finding of police was even adverse to the case of prosecution‑‑‑Further inquiry, thus, was‑'required into the guilt of the accused as' envisaged by subsection (2) of S.497, Cr.P.C.‑‑‑‑Accused was admitted to bail in circumstances.

1980 SCMR 203; 2002 SCMR 13$1; 1996 PCr.LJ 745; PLD 1989 SC‑585; 2002.PCr.LJ 394; 1985 SCMR 195; 1995 SCMR 1765; 2000 SCMR 257; Manzoor and 4 others v. The State PLD 1972 SC 81 and Amir v. The State PLD 1972 SC 277 ref.

Miss Gulzar Butt for Petitioner.

Syed Raza Hussain Naqvi for the Complainant.

Ch. Liaqat Ali for the State.

2004 P Cr. L J 550

[Lahore]

Before Ijaz Ahmad Chaudhry, J

AMJAD HUSSAIN ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Nos.2846/B and 2912/B of 2003, decided on 6th November, 2003.

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

‑‑‑‑S. 498‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10(4)/11‑‑‑Penal Code (XLV of 1860), Ss.365/342/109‑‑‑Pre­arrest bail‑‑‑Bail before arrest was meant to protect the innocent citizens if they were found to have been involved due to mala fides or, ulterior motive's for Accused had not alleged any mala fides or ulterior motives for their false implication in the case by the complainant, witnesses or the police‑‑‑Accused seemed to have misused the concession of extraordinary relief for pressurizing the complainant to resile from the earlier version and only when they had succeeded in' obtaining her affidavits in this regard, they had approached the High Court, otherwise their conduct before the lower Court was different as after obtaining interim bail they did not bother to appear in that Court on final hearing and their bail applications were dismissed for non‑prosecution‑‑‑One of the accused was a police constable and prosecution evidence was likely, to be tampered with‑‑‑Affidavits could not be given the status of evidence at such stage‑‑‑Accused were involved in .a case of heinous offence with serious allegations against them‑‑‑No reason for false implication of accused having' appeared, they were not entitled to any discretionary relief‑‑‑Pre‑arrest bail was‑refused to accused accordingly.

PLD1977 Lah. 1261; 1995 MLD 1254 and PLD 1990 SC 83 ref.

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

‑‑‑‑S. 498‑‑‑Bail before arrest‑‑‑Intent„ and purpose‑‑‑Pre‑arrest bail is meant to protect the innocent citizens if they are found ‑to have been involved due to mala fides or ulterior motives.

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

‑‑‑‑Ss. 497/498‑‑‑Bail‑‑‑Affidavits‑‑‑Affidavits sworn in favour of accused cannot be given the status of evidence at bail stage.

PLD 1977 Lah. 1261; 1995 MLD 1254 and PLD 1990 SC 83 ref.

Muhammad Javed Iqbal Adum for Petitioner (in Criminal Miscellaneous No.2846/B of 2003).

Abdul Latif Rao for Petitioner (in Criminal Miscellaneous, No.2912/B of 2003).

Syed Altaf Hussairi Bokhari for the Complainant.

Sheikh Imtiaz Ahmad for the State (in Criminal Miscellaneous No.2846/B of 2003).

Masood Sabir for the State (in Criminal Miscellaneous No.2912/B of 2003).

2004 P Cr. L J 555

[Lahore]

Before Maulvi Anwarul Haq, J

NISAR‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.61/B and Miscellaneous Application No. 125 of 2003, decided on 16th September, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.324‑‑‑Bail, grant of‑‑‑F. I. R. revealed that injury was located on the front of middle of right thigh of injured with corresponding exit on the back of middle of the right thigh ‑‑Challan of case had been prepared and submitted, but charge had not been framed‑‑‑Four months' incarceration without trial, in circumstances, was sufficient punishment‑‑‑Bail could not be refused by way of punishment‑‑‑Accused was admitted to bail, in circumstances.

Muhammad Afsar v. The State 1994 SCMR 2051 ref.

Raja Ahsan Mahmood Satti for Petitioner.

Ghulam Rabbani Qureshi for the Complainant.

Ch. M. Hussain for the State.

2004 P Cr. L J 560

[Lahore]

Before Maulvi Anwarul Haq, J

Capt. Syed JAMIL ALI SHAH‑‑‑Petitioner

versus

FEDERAL GOVERNMENT MINISTRY OF DEFENCE

through Chief of the Army Staff, G.H.Q., Rawalpindi‑‑‑Respondent

Writ Petition No.913 of 2002, decided on 14th November, 2003

(a) Pakistan Army Act (XXXI of 1952)‑‑‑

‑‑‑‑Preamble‑‑‑Courts Martial are a part of ordinary law of the land and are not to be confused with Martial Law Courts which are created on suspension of ordinary law‑‑‑Such Courts are established institution with well‑known procedure which cannot be described arbitrary, perverse or lacking in fairness in any manner‑‑‑Procedure prescribed for trial before the Military Court is nowhere contrary to the concept of fair trial in a criminal case.

Mrs. Shahida Zahir Abbasi v. President of Pakistan and others PLD 1996 SC 632 ref.

(b) Pakistan Army Act (XXXI of 1952)‑‑‑

‑‑‑‑S. 59‑‑‑Constitution of Pakistan (1973) Art.199‑‑‑Constitutional petition‑‑‑Accused was subject to Pakistan Army Act, 1952‑‑‑Murder of the deceased was an unseen occurrence which was attributed to the accused‑‑‑Court Martial on circumstantial evidence led by the prosecution convicted and sentenced the accused‑‑‑Sentence of accused was, however, reduced in revision‑‑‑Proceedings conducted in the case were not violative of the prescribed procedure‑‑‑Conviction and sentence awarded to accused were also neither without jurisdiction or coram non judice nor did the same suffer from any mala fides either in fact or in law‑‑‑High Court in exercise of its Constitutional jurisdiction could not interfere merely because a different view in the case was possible‑‑‑Constitutional petition was dismissed in circumstances.

Federation of Pakistan and another v. Ghulam Mustafa Khar PLD 1989 SC 26; Mrs. Shahida Zahir Abbasi v. President of Pakistan and others PLD 1996. SC 632; Sardar Farooq Ahmad Khan Leghari and others v. Federation of Pakistan and others PLD 1999 SC 57; S.R. Bommai and others v. Union of India and others AIR 1994 SC 1918; Ex‑Sowar Muhammad Saghir Khan v. Federal Government, Ministry of Defence through C.O.A:S., G.H.Q., Rawalpindi, Ex,‑Lt.­Col. Anwar Aziz v. Federation of Pakistan through Secretary, Ministry of Defence PLD 2001 SC 549; W.P. No.1150 of 1995 and Federal Government, Ministry of Defence v. Sepoy Liaqat Ali C.A. No.662‑of 2002 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Ouster clause pertaining to jurisdiction of superior Courts would not take effect where an act or proceedings is without jurisdiction, coram non judice or mala fide.

Col. Muhammad Akram for Petitioner

Ch. Sultan Mansoor, D.A.‑G. Lt.‑Col. Iqbal Hashmi, A.J.A.G for. Respondent.

Dates of hearing; 10th, 17th and 31st October, 2003.

2004 P Cr. L J 578

[Lahore]

Before Ch. Iftikhar Hussain, J

Mst. FAZLAN BIBI‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.480 of 2003, decided on 19th November, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Nobody had seen the accused administering poison in tea to her deceased son‑in‑law‑‑‑Dying declaration allegedly made by the deceased was not reliable as the Investigating Officer had recorded the same himself in the absence of the doctor and without calling any Magistrate‑‑‑Doctor had contradicted the statement of the Investigating Officer that the dying declaration was recorded in his presence‑‑‑Motive having not been proved by the prosecution on record, the same could not be considered as a corroborative piece of evidence to the dying declaration‑‑‑Investigation alone, in circumstances, could not lend any support to the case of prosecution‑‑‑Accused was acquitted accordingly on benefit of doubt.

Abdul Majid alias Majha v. The State 1976 PCr.LJ 545 and Niamat Ali v. The State 1981 SCMR 61 ref.

Qazi Muhammad Salem for Appellant.

Miss Nosheen Taskeen for the State.

Date of hearing: 17th November, 2003.

2004 P Cr. L J 586

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD IQBAL alias KALI and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.318/J of 2002, heard on 1st December, 2003.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b)/34 & 201/34‑‑‑Appreciation of evidence‑‑‑Case against accused was based only on circumstantial evidence‑‑‑Statement of the complainant regarding deceased accompanying accused having been based on hearsay evidence carried no value in the eyes of law‑‑‑Complainant had not disclosed the motive in the F.I.R. but had introduced the same at the trial after 7/8 months which was an improvement obviously to strengthen the prosecution case‑‑‑Widow of the deceased also had not stated before the police at the initial stage that her deceased husband had left the house with the accused and she had dishonestly improved her statement at the trial simply to link the accused with the missing deceased‑‑‑Evidence of "last‑seen" thus, was of no consequence‑‑‑Extra­-judicial confession having been made by the accused jointly was not admissible in evidence‑‑‑Dead body being not identifiable according to medical evidence could not be said with certainty to be that of the deceased in the case‑‑‑Cause of death of the deceased according to the Doctor could not be ascertained‑‑‑Medical evidence, therefore, had not supported the circumstantial evidence‑‑‑Abscondence of accused after the occurrence was not proved on record‑‑‑Recovery of the pistol of the deceased from his house was of no consequence as the same neither belonged to any of the accused, nor was shown to have been used during the commission of the crime‑‑‑Investigation alone, in the absence of any reliable evidence against the accused, could not be used to support the prosecution case‑‑‑Accused were acquitted on benefit of doubt in circumstances.

Tayyab Hussain Shah v. The State 2000 SCMR 683 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b)/34 & 201/34‑‑‑Appreciation of evidence‑‑‑Extra judicial confession‑‑ Extra‑judicial confession being a weak type of evidence cannot be made basis to determine the question of guilt or innocence of accused till the same is corroborated by any other incriminating and confirmatory evidence.

Tayyab Hussain Shah v. The State 2000 SCMR 683 ref.

Irshad Hussain Bhatti for Appellants.

Mrs. Tasneem Ameen for the State.

Date of hearing: 1st December, 2003.

2004 P Cr. L J 593

[Lahore]

Before Abdul Shakoor Paracha, J

ABDUL SHAHID QURESHI‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Revision No. 136 of 2003, decided on 25th August, 2003.

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

‑‑‑‑Ss. 9(c), 14, 15 & 47‑‑‑Criminal Procedure Code (V of 1898), Ss. 173, 190, 435, 439 & 561‑A‑‑‑Appreciation of evidence‑‑‑Summoning-‑‑Petitioner had challenged order of Special Court whereby petitioner was summoned as an accused under Ss.9(c), 14 & 15, Control of Narcotic Substances Act, 1997, contending that he was initially a witness in the report, under S.173, Cr.P.C., as no prima facie case existed against him on the file‑‑‑Trial Court in pursuance of order of High Court examined two Investigating Officers and on the basis of statements of said officers and documents produced by them, came to conclusion that a prima facie case under Ss.9(c), 14 & 15 of Control of Narcotic Substances Act, 1997 was made out against the accused and co­-accused‑‑‑Judge, Special Court having power to summon any person who was cited as a witness in the final report under S.173, Cr.P.C., had rightly and legally exercised his jurisdiction in summoning petitioner and his well‑reasoned order could not be interfered with in revision.

Falaksher v. The State PLD 1967 SC 425; Muhammad Nawaz Khan v. Noor Muhammad and another PL.D 1967 Lah. 176; Muhammad Akbar v. The State 1972 SCMR 335; Safdar Ali v. Zafar Iqbal and others 2002 SCMR 63; Mehrab v. Emperor 26 Cr.LJ 181 and Lal Bihari Singh v. Emperor 31 Cr.LJ 55 ref.

M. Ikram Chaudhry for Petitioner.

2004 P Cr. L J 596

[Lahore]

Before Ch. Iftikhar Hussain, J

ZAREEN KHAN‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.5338/B of 2003, decided on 6th October, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), S.381‑A‑‑‑Bail, grant of‑‑­Further inquiry‑‑‑Accused, who was not named in F.I.R., was also not put to identification test‑‑‑Case of accused, in circumstances, was covered under subsection (2) of S.497, Cr.P.C. requiring further inquiry into his guilt‑‑‑If it was accepted that recovery of stolen car complainant was recovered from the accused, same would attract offence under S. 411, P.P.C. which did not fall within prohibitory clause of S.497(1), Cr.P.C.‑‑‑Accused according to report of Medical Officer was sick in jail, which report had suggested that accused was unable to stand and walk independently and had also no control over urination‑‑­Accused was also examined by Neuro Surgeon and treatment suggested by him was being given to the accused‑‑‑Accused being sick, first proviso to S.497(1), Cr.P.C., was attracted to his case‑‑‑Accused was stated to be previous non‑convict‑‑‑Accused was admitted to bail, in circumstances.

Muhammad Saleem Cheema for Petitioner.

Mian Abdul Qayyum Anjum for the State.

2004 P Cr. L J 598

[Lahore]

Before Abdul Shakoor Paracha, J

SHAHID MAHMOOD and 4 others‑‑‑Appellants

Versus

THE STATE‑‑-Respondent

Criminal Appeal No.364 of 2000, heard on 17th October, 2003.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 311, 324, 148 & 337‑F(ii)‑‑‑Jurisdiction of Sessions Court challenged‑‑Legal heirs of the deceased before the commencement of the trial had entered into compromise with the accused compounding the offence under S.302, P.P.C.‑‑‑Sessions Court thereafter framed the charge under Ss.311, 324, 148 & 149, P.P.C. and convicted and sentenced them accordingly‑‑‑Section 311, P.P.C. having direct nexus with S.302, P.P.C. charge could not have been framed after the acquittal of the accused in the main murder case under S.311, P.P.C.‑‑‑Offences under Ss.324 & 148, P.P.C. were triable by the Magistrate and Sessions Court had also no jurisdiction to frame the charge against the accused thereunder‑‑‑Convictions and sentences of accused were consequently set aside being without jurisdiction and the case was remanded to the Sessions Judge for entrusment to a Magistrate having jurisdiction in the matter.

Mansab Ali v. Amir and 3 others PLD 1971 SC 124; Rashid Ahmad v. The State PLD 1972 SC 271; Chittaranjan Cotton Mills Ltd. v. Staff Union PLD 1971 SC 197 and Chief Kwame Asante Tredahone v. Chief Kwame 9 DLR 686 (PC) ref.

(b) Criminal trial‑‑‑

‑‑‑‑Jurisdiction‑‑‑Objection relating to jurisdiction‑‑‑Legal questions relating to jurisdiction can be raised at any stage, of the proceedings.

Mansab Ali v. Amir and 3 others PLD 1971 SC 124; Rashid Ahmad v. The State PLD 1972 SC 271; Chittaranjan Cotton Mills Ltd. v. Staff Union PLD 1971 SC 197 and Chief Kwame Asante Tredahone v. Chief Kwame 9 DLR 686 (PC) ref.

(c) Jurisdiction‑--

‑‑‑‑ Lack of jurisdiction‑‑‑Effect‑‑‑If a mandatory condition for the exercise of jurisdiction before a Court, Tribunal or Authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction.

Rashid Ahmad v. The State PLD 1972 SC 271; Chittaranjan Cotton Mills Ltd. v. Staff Union PLD 1971 SC 197 and Chief Kwame Asante Tredahone v. Chief Kwame 9 DLR 686 (P C) ref.

Sardar Muhammad Ishaq Khan‑I for Appellants.

Malik Muhammad Nawaz Khan‑I for the Complainant.

Muhammad Ayub Kiani for the State.

Date of hearing: 17th October, 2003.

2004 P Cr. L J 602

[Lahore]

Before Khawaja Muhammad Sharif, J

Syed IBN‑E‑HASSAN‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.5010/B of 2003, decided on 30th September, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/34/107‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Prosecution could not produce any evidence to prove alleged abetment against accused‑‑‑Name of witnesses, time, date and place had not been mentioned in the F.I.R.‑‑‑Case of accused was one of further inquiry within meaning of subsection (2) of S.497, Cr.P.C.‑‑‑Accused was admitted to bail, in circumstances.

PLD 1996 SC 241 ref.

Syed Shakir Ali Rizvi for Petitioner.

Rai Shabbir Ahmad for the Complainant.

Walayat Umar for the State.

2004 P Cr. L J 604

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

ZUBAIR HUSSAIN ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.836/B of 2003, decided on 25th September, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/337‑A(ii)/337‑F(vi)/337‑ D/337‑L/34‑‑‑Bail, grant of‑‑‑Allegation against accused was that he caused injury on the left arm of complainant with a hatchet, but as per Medico‑legal Report said injury was with a blunt weapon‑‑‑No injury to deceased had been attributed to the accused‑‑‑Complainant party had also been challaned in cross case and complainant and prosecution witness had been challaned under Ss.324/337‑A(ii)/337‑F(vi)/337‑L(ii)/34, P.P.C.‑‑­Co‑accused had been granted bail and at the time of disposal of bail application of said co‑accused, counsel for complainant too submitted that he had no objection if accused was released on bail‑‑‑Accused was in judicial lock‑up since his arrest, but no evidence had been recorded so far‑‑‑Accused was admitted to bail, in circumstances.

Mumtaz Hussain Bazmi for Petitioner.

Noor Hassan for the Complainant.

Mirza M. Nadeem Asif for the State.

2004 P Cr. L J 606

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Mst. SHAMIM‑‑‑Petitioner

Versus

DISTRICT POLICE OFFICER, DISTRICT KHANEWAL and 2 others‑‑‑Respondents

Writ Petition No.9407 of 2002, heard on 6th November, 2003.

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

‑‑‑‑Ss. 10/11‑‑‑Constitution of Pakistan (1973), Art. 199‑Constitutional petition‑‑‑Quashing of F.I.R.‑‑‑Accused had contracted marriage with her co‑accused out of her free‑will and consent being sui juris while her Nikah with another person as claimed in the F.I.R. had not been proved‑‑‑Pendency of the criminal proceedings in the Trial Court as a result of the impugned F.I.R., in circumstances, would be abuse of process of law‑‑‑Accused after submission of report under S.173, Cr.P.C. no doubt, had an alternate remedy by filing an application under S.265‑K, Cr.P.C. before the Trial Court, but in the attending circumstances any recourse to same would have been sheer wastage of time when High Court was fully competent to quash the F.I.R. in suitable cases‑‑‑Impugned F.I.R. alongwith consequent proceedings pending before the Trial Court was consequently quashed and the Constitutional petition was accepted accordingly.

Muhammad Azam v. The State PLD 1984 SC 95 and 2000 SCMR 122 ref.

Sh. Muhammad Rahim for Petitioner.

Nemo for Respondents.

Date of hearing: 6th November, 2003.

2004 P Cr. L J 609

[Lahore]

Before Khawaja Muhammad Sharif, J

Dr. SHABBIR HUSSAIN‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3856/B of 2003, decided on 24th July, 2003.

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 fired at three deceased persons‑‑‑Only five crime empties were recovered from the spot whereas fourteen accused were shown to be present at the spot while one had been shown as accused of abetment ‑‑‑Accused was not connected with the motive of the case‑‑‑No recovery had been effected from accused‑‑‑Role attributed to accused was that of Lalkara‑‑‑Case of accused‑in circumstances, was one of further inquiry within meaning of subsection (2) of S.497, Cr.P.C.‑‑‑Accused was admitted to bail.

PLD 1979 Kar. 5.83; 1978 PCr.LJ 150; 1993 PCr.LJ 2112 PLD 1967 SC 340; 2002 PCr.LJ 289; 2001 PCr.LJ 134 and Tariq Bashir v. The State PLD 1995 SC 34 ref.

Mian Shahid Iqbal for Petitioner.

Rai Bashir Ahmad for the Complainant.

Muhammad Faheem Bashir for the State.

2004 P Cr. L J 613

[Lahore]

Before Mian Muhammad Najum‑uz‑Zaman, J

SHAHID ALI‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.2051 and Criminal Revision No.921 of 2001, heard on 24th April, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Time, place of occurrence and weapon used during occurrence were admitted fact ‑‑‑Evidence of one of prosecution witnesses was to the extent of last' seen‑‑‑Other prosecution witness was present with deceased at the time of occurrence and he received fire‑arm injuries‑‑‑Said prosecution witness was examined on the day of occurrence within half an‑hour of the registration of the case‑‑­Injury on person of said witness was not proved to be self‑inflicted and nature and duration of injury on person of said prosecution witness found support from medical evidence and his presence at the spot stood established from the record of the case‑‑‑Accused had failed to point out any circumstances to show that prosecution witnesses had any personal enmity against him to falsely implicate him in the case‑‑Statement of both prosecution witnesses were self‑explanatory, rang true and were persuasive in nature‑‑‑Facts about incident narrated by prosecution witnesses were closer to truth and found corroboration from circumstances of case, whereas defence plea was not persuasive‑‑‑No other independent corroborative piece of evidence, except oral statements of two prosecution witnesses was in support of motive part of prosecution case‑‑‑Trial Court while passing sentence had rightly taken lenient view and criminal revision seeking enhancement of sentence of accused; was dismissed.

Ch. Naseer Ahmad Sindhu for Appellant.

Ch. Muhammad Afzal Wahla for the Complainant.

Ms. Nausheen Taskeen for the State.

Date of hearing: 24th April, 2003.

2004 P Cr. L J 620

[Lahore]

Before Asif Saeed Khan Khosa, J

Mst. NIGHAT ABBAS and others‑‑‑Petitioners

Versus

MUHAMMAD YOUSAF and others‑-‑Respondents

Writ Petition No. 13340 of 2003, decided on 3rd October, 2003.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10/11‑‑‑Constitutional petition‑‑‑Quashing of F.I.R; --­Alleged abductee had categorically maintained before the Court that she had never been abducted or enticed away by any person as alleged in the F.I.R. and that she had contracted marriage with co‑accused of her own free will and volition by a registered Nikahnama‑‑‑Complainant/father of alleged abductee had maintained that petitioner/accused was previously married to another person through registered Nikahnama and that she could not contract marriage with co‑accused during subsistence of her earlier marriage‑‑‑Impugned F.I.R. showed that no such earlier marriage of the petitioner with any person had been referred to and alleged Nikah of petitioner with said other person could be a subsequent contrivance‑‑­Question as to which Nikahnama was valid, was a subject fit for a Family Court to adjudicate upon before the same was made a basis of criminal prosecution of petitioner/accused‑‑‑Impugned F.I.R. was based upon nothing but frustration and malice on the part of complainant who had tried to convert and transform a matrimonial issue into a criminal case‑‑­Allowing such an F.I.R. to continue to hold the field would amount to an abuse of process of law which could not be allowed to be perpetuated‑‑­F.I.R. was quashed, in circumstances.

Ch. Ghulam Mustafa Bandesha for Petitioners.

Inayat Ullah Niazi for Respondent No. 1.

Najeeb Faisal Chaudhary, Addl. A.‑G. for Respondents Nos.2 and No. 3.

Date of hearing: 3rd October, 2003.

2004 P Cr. L J 629

[Lahore]

Before Muhammad Farrukh Mahmud, J

FARMAN ALI and another‑ ‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.483‑B of 2003/BWP decided on 8th July, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑­Despite the fact that two prosecution witnesses had informed the complainant that they had seen the accused throwing his brother in the canal, he did not report the matter to the police for ten days and continued his private search‑‑‑Accused according to F.I.R. had grudge against the complainant and not against his brother‑‑‑Involvement of accused in the crime could only be determined by Trial Court after recording evidence‑‑‑Allegations against accused requiring further probe as envisaged by S.497(2), Cr.P.C. they were admitted to bail in circumstances.

Ch. Abdul Ghaffar Bhutta and Muhammad Sharif Bhatti for Petitioners.

Malik Siddique Sikandar for the Complainant.

Ghazanfar Ali Khan for the State.

2004 P Cr. L J 633

[Lahore]

Before M. Naeemullah Khan Sherwani, J

SHAHBAZ FAROOQ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 2709‑B of 2003 decided on 30th June, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(4)‑‑‑Penal Code (XLV of 1860), S.452/34 ‑‑‑ Bail ‑‑‑ No allegation of commission of Zina was made against the accused‑‑‑Accused had allegedly simply entered into the compound of the house where in a room the prosecutrix was sexually assaulted by co‑accused‑‑­Accused was behind the bars for the last more than a year‑‑‑Challan had already been submitted in the Court and trial was likely to consume a sufficient long time‑‑‑Presence of accused at the spot and his vicarious liability in the matter was yet to be determined by the Trial Court after recording some material evidence in the case‑‑‑Further probe into the guilt of accused was necessary‑‑‑Accused was admitted to bail in circumstances.

Nazir Ahmad Ghazi for Petitioner.

Nasim Sabir Chaudhry, Addl. A.‑G. assisted by Aamir Feroze for the State.

2004 P Cr. L J 638

[Lahore]

Before Asif Saeed Khan Khosa, J

KHADIM HUSSAIN and another‑‑‑Appellants

Versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No.408 of 2002, decided on 28th May, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 228‑‑‑Appreciation of evidence‑‑‑Allegation against accused persons, police officials, was that they had arrested and detained a person in connection with a criminal case at a time when said accused had already been admitted to bail in same case and allegedly by so doing had insulted Court which had granted bail to said person‑‑‑Act of arresting said person by accused might be a result of negligence and carelessness on the part of accused, but said act was surely not committed with any intention to insult Court which had admitted said person to bail‑‑‑Accused were not posted at the relevant police station when said person had been admitted to bail‑‑‑Said person had not produced any order of bail before accused when they arrested and detained him‑‑‑Said person had pardoned accused and had depicted no intention to prosecute them for his wrongful confinement‑‑‑Nothing was available on record regarding any intention on the part of accused to commit crime or to insult any Court‑‑‑Applicability of provisions of S.228, P.P.C. to the case, by itself was quite suspect‑‑­Conviction and sentence of accused were set aside and they were acquitted of charge.

Ghulam Nabi Nagi for Appellant.

Syed Nazim Hussain Shah for the State.

Nemo for Respondent No.2.

Date of hearing: 28th May, 2003.

2004 P Cr. L J 647

[Lahore]

Before M. Naeemullah Khan Sherwani, J

MUKHTAR HUSSAIN ‑‑‑ Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.6960/B of 2003, decided on 18th December, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.420/468/471‑‑‑Bail, grant of‑‑‑Samples of handwriting or signatures of accused were never sent to Handwriting Expert for comparison‑‑‑Imperative upon prosecution to have got disputed document compared with his hand‑writing/signatures sample to prove allegations against accused‑‑‑Grave conflict existed between recovery memo and circumstances narrated in F.I.R. which had made the affair extremely doubtful‑‑‑Accused was no longer required for further investigation and no further offence was to be discovered from him and his further detention in jail was not likely to serve any useful purpose to the case of prosecution‑‑‑Offences alleged to have been committed by accused could entail maximum punishment of seven years if prosecution succeeded in proving its case up to the hilt‑‑‑No likelihood existed of jumping bail by the accused in any manner‑‑‑Accused was admitted to bail; in circumstances.

Pervaiz Jnayat Malik for Petitioner.

Tariq Khan for the State.

Date of hearing: 18th December, 2003.

2004 P Cr. L J 652

[Lahore]

Before Tanvir Bashir Ansari, J

ABDUL RASHEED‑‑‑Petitioner

Versus

THE STATE and others‑‑‑Respondents

Writ Petition No.5921‑Q of 2000/BWP, decided on 18th January, 2002.

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

‑‑‑‑S. 16‑‑‑Criminal Procedure Code (V of 1898), Ss.155 & 156‑‑­Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Quashing of F.I.R.‑‑‑Offence under S.16 of the West Pakistan Maintenance of Public Order Ordinance, 1960, being a non‑cognizable offence, F.I.R. thereunder could not be registered and no investigation thereon could take place without the prior permission of the Magistrate as provided by Ss.155 & 156, Cr. P.C. ‑‑‑Prosecution had conceded to the said legal proposition admitting that the complaint had been registered without the prior permission of the Magistrate‑‑‑F.I.R. was quashed accordingly.

Ch. Abdul Ghaffar Bhutta for Petitioner.

M.M. Bashir, A.A.‑G. for the State.

2004 P Cr. L J 732

[Lahore]

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

MUNIR AHMAD‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1756 of 2002 and Criminal Revision No. 1122 of 2002, heard on 3rd June, 2003.

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

‑‑‑‑Ss. 9(c) & 25‑‑‑Criminal Procedure Code (V of 1898), S.103‑‑­Appreciation of evidence‑‑‑Recovery proceedings‑‑‑Accused was apprehended red‑handed by police party while in possession of a huge quantity of narcotics‑‑‑Report submitted by Chemical Examiner regarding a sample of the recovered substances, was in the positive‑‑‑Both prosecution witnesses were public servants performing their official duties and accused had failed to point out any background of bitterness and ill‑will between him and said witnesses so as to prompt them to falsely implicate accused in a case of such nature‑‑‑By virtue of provisions of S.25 of Control of Narcotic Substances Act, 1997 provisions of S.103, Cr.P.C. did not apply to cases under Control of Narcotic Substances Act, 1997, provisions of S.103, Cr.P.C. thus could not be said to have been violated in the case‑‑‑Many people though had gathered at the place of recovery, but none of them had shown willingness to become witness in the case‑‑‑Non‑inclusion of any private witness as a witness of recovery was not a defect serious enough to vitiate conviction of accused‑‑‑Official witnesses produced in the case had made consistent statements and alleged contradictions in their statements had been found to be minor and not of much significance‑‑‑Prosecution having succeeded in proving guilt of accused beyond reasonable doubt, conviction and sentences recorded by Trial Court against accused were upheld and maintained.

Kamil Zaman v. The State 1999 PCr.LJ 1546; Irshad Ahmad Malik v. The State 2001 YLR 1123 and Hakim Ali v. The State 2001 PCr.LJ 1865 ref.

Q.M. Saleem for Appellant.

Muhammad Azam for the State.

Date of hearing: 3rd June, 2003.

2004 P Cr. L J 742

[Lahore]

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

MUMTAZ HUSSAIN ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.1204 of 1999 and Murder Reference No.444 of 1999, heard on 19th May, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b), 310 & 311‑‑‑Criminal Procedure Code (V of 1898), S.345‑‑‑Compromise‑‑‑‑All the legal heirs of the deceased had effected compromise with accused alter forgiving him in the name of Almighty Allah and also had waved their right of Qisas and Diyat without any pressure or compulsion from any quarter‑‑‑Accused had also transferred land as Badl‑e‑Sulah‑‑‑ Compromise arrived at between the parties was proved to be without any pressure or coercion, rather same with own free will of legal heirs of deceased‑‑‑Compromise being genuine and offence against accused being compoundable with permission of the Court, appeal filed by Accused was accepted and conviction and sentence recorded against him by Trial Court, were set aside and accused was acquitted of the charge of murder.

Khawar Mehmood for Appellant.

Abdul Qayyum Anjam for the State.

Date of hearing: 19th May, 2003.

2004 P Cr. L J 743

[Lahore]

Before Ali Nawaz Chowhan and Rustam Ali Malik, JJ

MUHAMMAD YAQOOB alias MNSHA‑‑‑Appellant

Versus

THE STATE ‑‑‑Respondent

Criminal Appeal No.449 of 2002 heard on 12th February, 2004.

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

‑‑‑‑S. 9(b)‑‑‑Sentence‑‑‑Quantum-‑‑Principles‑‑‑Trial Court, in the present case, had given the accused a very harsh sentence of 5 years against the recovery of a very small quantity of opium (180 grams)‑‑­Accused having already undergone some part of the sentence, High Court reduced the same to one undergone and reduced the fine to Rs.500 against Rs.30,000‑‑‑High Court observed that sentencing was not totally discretionary and the Trial Court had acted with impulse and not with a judicial mind‑‑‑Sentence was structured by the case‑law, by the circumstances and also by the perception, while the social and economic conditions and grounds realities help in appreciating criminology‑‑‑Judge is considered to be an expert in this area and not an arbiter who acts capriciously and beyond proportions‑‑‑Balances were to be kept even in the matter of crime and punishment‑‑‑High Court disapproved hasty and impulsive decisions and expected the subordinate judiciary to take a breath after an order of conviction was made and then to ponder over the quantum of sentence with cool head while keeping in view the rationale of a crime and principles of sentencing.

(b) Crime and punishment‑‑‑

----Sentence ‑‑‑ Quantum ‑‑‑ Principle--Sentence was structured by the case‑law, by the circumstances and also by the perception, while the social and economic conditions and grounds realities help in appreciating criminology‑‑‑Judge is considered to be an expert in this area and not an arbiter who acts capriciously and beyond proportions‑‑‑Balances were to be kept even in the matter of crime and punishment‑‑‑High Court disapproved hasty and impulsive decisions and expected the subordinate judiciary to take a breath after an order of conviction was made and then to ponder over the quantum of sentence with cool head while keeping in view the rationale of a crime and principles of sentencing.

Ch. Nisar Ahmad Dhillon for Appellant.

S.D. Qureshi for the State.

Date of hearing: 12th February, 2004.

2004 P Cr. L J 752

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD RAMZAN‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.5074/B of 2003, decided on 7th October, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑B‑‑­Bail, grant of‑‑‑Further inquiry‑‑‑Conduct of the police functionaries particularly the Investigating Officer in the present case needed to be deprecated, inasmuch as he did not care to send the weapon to Fire‑arms Expert for his opinion though the offence with which accused had been charged entailed life imprisonment‑‑‑Since there was no report available on the file as to what was the nature of weapon and as to whether offence under S. 13‑B of West Pakistan Arms Ordinance, 1965 was made out or not, case was one of further inquiry within subsection (2) of S.497, Cr.P.C.‑‑‑Bail was granted in circumstances.

Ch. Ghulam Mustafa Bandesha for Petitioner.

Abdul Hafeez for the State.

Date of hearing: 7th October, 2003.

2004 P Cr. L J 758

[Lahore]

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

MUHAMMAD MAZHAR HUSSAIN and another‑‑‑Appellants

Versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No. 1364 of 1999 and Murder Reference No.481 of 1999, heard on 3rd June, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Complainant who was brother of the deceased, was an Advocate by profession‑‑‑Day on which occurrence had taken place, was a working day and complainant had completely failed to establish reason for his presence with his deceased brother at place of occurrence at the relevant time as he was ordinarily expected to be busy with his professional pursuits as an Advocate at such time of the day‑‑‑Complainant surely was a chance witness as he could not establish his presence at place of occurrence at the relevant time‑‑­Other prosecution witness was also a chance witness who too had utterly failed to provide any explanation for his presence at a roadside outside factory of deceased at the relevant time‑‑‑Place of occurrence was surrounded by different shops, but prosecution had failed to produce any independent witness from the vicinity‑‑‑Prosecution witnesses had completely failed to receive any independent corroboration from any independent source‑‑‑Motive as set up by prosecution had remained far from being established‑‑‑Medical evidence produced by prosecution had completely shattered ocular account instead of providing support to the same‑‑‑Post‑mortem examination of dead body , of deceased had been conducted not on the same day, but for some undisclosed reason was conducted on next day‑‑‑Only two injuries had been mentioned in relevant Column of inquest report, but subsequently four more injuries were added in the said Column‑‑‑Alleged recovery of pistol from possession of accused during investigation and subsequent matching of said pistol with four crime empties recovered from the spot, had also failed to inspire confidence‑‑‑Prosecution case against accused being replete with serious doubts, benefit of such doubts must be extended to accused‑‑‑Conviction and sentence recorded against accused by Trial Court, were set aside, and he was acquitted of the charge.

Ch. Wasi Zafar for Appellants.

Fazal Hussain Joya for the State.

Date of hearing; 3rd June, 2003.

2004 P Cr. L J 778

[Lahore]

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

WASEEM alias BUTT and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.263 of 1999 and Murder Reference No.202 of 1999, heard on 29th April, 2003.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Occurrence though had taken place during a night, yet it had been mentioned in F.I.R. itself that electric light was available at the place of occurrence facilitating the eye­witnesses in recognizing the culprits ---F.I.R. was lodged with reasonable promptitude and accused had been specifically nominated therein as the culprit who had fired fatal shot at deceased---Complainant was a natural witness as occurrence had taken place in street outside her house and at the time when she was expected to be present at her house in the normal circumstances---Prosecution witness though was a chance witness who lived about one mile away from place of occurrence, but he had advanced a specific reason for his presence at the place of occurrence at relevant time and said reason had not been seriously questioned by accused during cross-examination---Complainant and prosecution witness though were brother and sister of deceased, but mere relationship of a witness with deceased did not by itself disqualify such a witness from being a complainant and reliable witness---Both said eye-witnesses had no enmity or animus of such a nature against accused so as to prompt them to falsely implicate accused in a case of such nature involving murder of their brother---Both said eye-witnesses had made consistent statements before Trial Court regarding main incident which was confidence inspiring and had impressed the trial Court---No reason existed for not placing implicit reliance upon statements of such eye-witnesses regarding culpability of accused---Motive set up by prosecution had been proved--­Accused remained fugitive for over a year after incident---Medical evidence produced by prosecution had also provided ample support to ocular account---Date, time of occurrence, weapon used and locale of the injury sustained by deceased stated by eye-witness had all been confirmed by medical evidence---Prosecution had succeeded in proving the guilt of accused beyond any reasonable doubt---In absence of any mitigating circumstances for reducing sentence of accused, conviction and sentence recorded by Trial Court against accused were upheld and maintained.

Kh. Awais Mushtaq for Appellants.

Mrs. Erum Sajjad Gul for the State.

Date of hearing: 29th April, 2003.

2004 P Cr. L J 785

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ASLAM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.595 of 2002, heard on 25th June, 2003.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Statement of doctor who conducted medical examination on person of deceased before his death showed that there were two injuries on his person---Doctor who conducted post-mortem examination on dead body of the deceased stated that there were two entry wounds on person of the deceased and that there were two injuries on person of the deceased---Only ineffective firing was attributed to the accused and no injury was attributed to him--­No recovery was effected from the accused---Conviction and sentence­ awarded to accused by Trial Court were set aside granting him benefit of doubt.

Syed Iqbal Hussain Gillani for Appellant.

Ch. Nazir Ahmad for the State.

Date of hearing: 25th June, 2003.

2004 P Cr. L J 805

[Lahore]

Before Bashir A. Mujahid and Ch. Iftikhar Hussain, JJ

ARIF BAIG---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 741 of 1997 and Murder Reference No. 160 of 1998, decided on 27th January, 2004.

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

----Ss. 302(b) & 324/34---Appreciation of evidence---F. I. R. was promptly lodged nominating the accused with specific role leaving no chance for deliberations or consultations---Three eye-witnesses had received grievous fire-arm injuries which could not be fabricated or self­ suffered and their presence at the spot could not be doubted---One eye­witness though related to the complainant had no previous enmity with the accused and the other two eye-witnesses were independent witnesses who had furnished sufficient explanation for their presence at the scene of occurrence and they were truthful witnesses---If the Investigating Officer had not taken the blood-stained earth from the places where the said witnesses had received injuries or had not taken their blood-stained clothes into possession, it might be due to his inefficiency, but their presence at the place of incident could not be doubted---Ocular account was fully corroborated by medical evidence---Accused had participated in the occurrence duly armed with rifle and caused successive injuries to the deceased and the prosecution witnesses and he did not deserve any leniency under the cover that the occurrence took place at the spur of the moment or that he might have acted under the command of his father--­No mitigating circumstance was available in favour of accused for awarding lesser sentence---Conviction and sentences of accused were upheld in circumstances.

Gul Khan and another v. State 2000 SCMR 400; Feroze Khan v. State 2002 SCMR 99; Jehanzeb and another v. State and others 2003 SCMR 98; Mirza Zaheer Ahmad v. State 2003 SCMR 1164; Zia Ullah v. The State 1993 SCMR 155; Mrs. Hafeezan Bibi v. Muhammad Tufail and others 1995 SCMR 256 and Nazir Ahmad v. The State 1999 SCMR 396 ref.

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

----Ss. 302(b) & 324/34---Sentence---Motive---Weakness or absence of motive is no ground for awarding lesser punishment.

S.M. Latif Khan Khosa for Appellant.

Khalid Habib Sheikh for the State.

Date of hearing: 26th January, 2004.

2004 P Cr. L J 826

[Lahore]

Before Bashir A. Mujahid, J

ALI ASGHAR and others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.688 and Criminal Revision No.380 of 2001, heard on 6th February, 2004.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Appreciation of evidence---Motive as alleged by the complainant for the occurrence was not established---Enmity between the parties was admitted---Presence of eye-witnesses on the spot was not proved---Occurrence was an unwitnessed one---Possibility could not be ruled out that only one of the accused, might be responsible for the incident and the complainant party had widened the net to implicate all the four real brothers in the case which had created serious doubt about the prosecution story---Ocular testimony was not corroborated by any independent evidence, rather it was contradicted by medical evidence---No incriminating material was recovered from the accused---Accused were extended the benefit of doubt and acquitted in circumstances.

A. Karim Malik, Naseeruddin Nayyer and Sher Asghar for Appellants.

S.M. Latif Khan Khosa for the Complainant.

Abdul Qayum Anjum for the State.

Date of hearing: 6th February, 2004

2004 P Cr. L J 853

[Lahore]

Before Rustam Ali Malik, J

MUMTAZ AHMED ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2080/B of 2002, decided on 12th April, 2002.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/34/109---Bail, grant of---Further inquiry---Allegation against accused as per F.I.R. was that he was holding legs 'of the deceased while his co-accused had put a piece of cloth around his neck ---Inspector/S.H.O. in report under S.173, Cr.P.C. had observed that in course of investigation statements of complainant and his eye-witness did not find support---Benefit of doubt thus could be extended to accused even at bail stage ---Co-accused had already been admitted to bail---Roles attributed to accused and co-accused were similar, though not exactly the same---Case was of further inquiry into guilt of accused---Accused, in circumstances, was entitled to concession of bail.

PLD 1972 SC 277 ref.

Chaudhry Muhammad Afzal Wahla with Zafar Iqbal Chohan for Petitioner.

Chaudhry M. Munir for the State.

Date of hearing: 12th April, 2002.

2004 P Cr. L J 874

[Lahore]

Before Muhammad Farrukh Mahmud and Syed Sakhi Hussain Bokhari, JJ

MUJAHID HUSSAIN ---Appellant

Versus

THE STATE --- Respondent

Criminal Appeal No.20 and Criminal Revision No.13 of 1997/BWP, decided on 23rd April, 2003.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S.382-B---Juvenile Justice System Ordinance (XXII of 2000), Ss.2(b) & 12---Appreciation of evidence---Benefit of S.382-B, Cr.P.C.---Entitlement---Enhancement of punishment---Trial Court had rightly convicted accused on basis of evidence of extra-judicial confession and recovery of photo-copy of Identity Card of accused on the very first day from place of occurrence---Case was not that of direct evidence and accused on the date of occurrence being less than 16 years old, was juvenile according to Juvenile Justice System Ordinance, 2000, and capital punishment could not be imposed on juvenile---Appeal being continuation of trial, benefit of provisions of Juvenile Justice System Ordinance, 2000 was to be extended to the accused---Sentence awarded to accused could not be enhanced as prayed by the complainant---Provisions of S.382-B, Cr.P.C. being mandatory, benefit of same could be extended to accused on each count---Maintaining conviction of accused, he was awarded punishment accordingly.

Ch. Abdul Ghaffar Bhuttoa for Appellant.

Raja Muhammad Sohail Iftikhar for the Complainant.

M.A. Farazi for the State.

Date of hearing: 23rd April, 2003.

2004 P Cr. L J 896

[Lahore]

Before Khawaja Muhammad Sharif, J

ATTA MUHAMMAD ---Petitioner

Versus

IRFAN alias TOFI and another---Respondents

Criminal Miscellaneous No.2370/B of 2003, decided on 16th May, 2003.

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

----S. 497(1)(5)---Penal Code (XLV of 1860), S.324---Bail, cancellation of---Accused, who was armed with hatchet, first he gave an injury on the head of injured prosecution witness and thereafter he repeated the same while hitting his nasal bone---Accused was 19 years of age at the time of occurrence---Offence alleged against accused - fell within prohibitory clause of S.497(1), Cr.P.C. wherein sentence was 10 years' imprisonment---Accused had repeated the offence---Case against accused being not that of bail, which was cancelled by the High Court and accused was ordered to be taken into custody.

1999 PCr.LJ 1074 and NLR (Crl.) Vol. XVIII ref.

Ch. Jameel Ahmad Sindhu for Petitioner.

Sohail Tariq for the State.

Dr. Muhammad Irtiza Awan for Respondents.

Date of hearing: 16th May, 2003.

2004 P Cr. L J 897

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD YOUSAF and another---Petitioners

Versus

THE STATE ---Respondent

Criminal Miscellaneous Nos.3556/B and 3638/B of 2003, decided on 14th July, 2003.

Criminal Procedure Code (V of 1898)--

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10(2)/13/14---Bail, grant of---Raid in question had been conducted by Local Police on the pretext of apprehending a proclaimed offender---Raiding party had failed to apprehend said proclaimed offender, but it had found the accused indulging in Zina with different ladies---Such a practice on part of police was deprecated by the High Court---Female accused allegedly involved in the case were never got medically examined and no vaginal swabs of said ladies had ever been sent to office of Chemical Examiner for detection of semen so as to establish commission of Zina by them---Investigation of case had already been completed and a challan had been submitted--­Physical custody of accused, in circumstances was no more required for purpose of investigation---Accused were admitted to bail, in circumstances.

Muhammad Naeem and another v. The State 1999 PCr.LJ 463 ref.

Zafar Iqbal Chohan for Petitioner (in Criminal Miscellaneous No.3556/B of 2003).

Mian Arshad Ali Mahar for Petitioner (in Criminal Miscellaneous No.3638/B of 2003).

Sand-ul-Hassan for the State.

Date of hearing: 14th July, 2003.

2004 P Cr. L J 914

[Lahore]

Before Bashir A. Mujahid, J

SHAHZAD AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1629/B of 2002, decided on 26th March, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-A(iii)/337-L(ii)/34--­Bail, grant of---Accused was attributed injury on the nose of complainant, but no X-Ray report was obtained to prove that the injury attributed to accused was grievous and the nasal bone of the victim was fractured---Case of accused thus could not be said to be falling under prohibitory clause of S.497(1), Cr.P.C.---Case of accused was also at par with his co-accused who had been released on bail--Accused was admitted to bail, in circumstances.

Zafar Iqbal Chohan for Petitioner.

Ch. Ghulam Mustafa Bandesha for the Complainant.

Abdul Haq Awan for the State.

Date of hearing; 26th March, 2002.

2004 P Cr. L J 921

[Lahore]

Before Raja Muhammad Sabir, J

MUHAMMAD ARSHAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.570/B of 2003, decided an 27th February, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324/34/109---Bail, refusal of---Accused who was named in the F.I.R. and specific role was attributed to him, had caused injury at the right buttock of the brother of the complainant with .222 rifle---Version set up in F.I.R. was supported by Medico Legal Report---Contention of accused that his participating in the occurrence was found doubtful by last Investigating Officer and that injury being on non-vital part of body, had brought his case within purview of further inquiry, was repelled---Injured prosecution witness and complainant had specifically alleged that accused had fired on the injured and caused injury to him---Opinion of Investigating Officer given in Zimni in presence of statement of injured prosecution witness, was of little significance---Police opinion was not binding on the Court unless same was supported by material on record---Accused was arrested about five months back and accused had not been able to show any valid ground for his release on bail.

Ch. Fawad Hussain for Petitioner.

Muhammad Tahir Chaudhry for Respondent.

Tariq Javed for the Complainant.

Kh. Shaukat Ali for the State.

Date of hearing: 27th February, 2003.

2004 P Cr. L J 923

[Lahore]

Before Khawaja Muhammad Sharif, J

MAZHAR IQBAL and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2633/B of 2003, decided on 16th May, 2003.

Criminal Procedure Code (V of 1898)---

----S. 498---Pre-arrest bail, confirmation of---Complainant had forgiven the accused---Trial Court which had not confirmed pre-arrest bail of accused, had mentioned in its order that compromise had been effected between complainant and accused, but as the offence was heinous one, bail could not be confirmed---Validity---Complainant having forgiven the accused and he had no objection if pre-arrest bail already granted to accused was confirmed, pre-arrest bail already granted to accused, was confirmed.

1995 PCr.LJ 1107 and 1998 SCMR 466 ref.

Zafar Iqbal Chohan for Petitioners.

Asghar Hashmi for the State.

Date of hearing: 16th May, 2003.

2004 P Cr. L J 949

[Lahore]

Before Ali Nawaz Chowhan, J

MUHAMMAD IQBAL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1775 of 2000 and Criminal Revision No. 138 of 2001, decided on 22nd May, 2002.

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

----Ss. 308 & 302(c)---Criminal Procedure Code (V of 1898), S.544-A--­Appreciation of evidence---Real facts had been suppressed by the complainant---Investigation in the case was not properly made--­Occurrence had taken place in day time in which cross-firing appeared to have been resorted to both the parties were aggressive against each other---Factors such as provocation and heat of passions could not get consideration on account of suppression of true facts---Conviction of accused under S.308, P.P.C. was altered to S.302(c), P.P.C. in circumstances and he was sentenced to undergo 14 years' R.I. and to pay a sum of Rs.2,00,000 as compensation to the legal heirs of the deceased under S.544-A, Cr.P.C.---Complainant was not entitled to Diyyat in circumstances.

Rana Muhammad Arshad for Appellant.

Zafar Iqbal Chuhan for the Complainant.

Mirza Abdullah Baig for the State.

Date of hearing: 22nd May, 2002.

2004 P Cr. L J 962

[Lahore]

Before Khawaja Muhammad Sharif, J

LIAQAT ALI ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 187/B of 2003, decided on 29th January, 2003.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.324‑‑‑Bail, refusal of‑‑­Accused, who was armed with gun, fired a shot which hit on the thigh of injured prosecution witness, who was also present in the Court‑‑­Provisions of S.324, P.P.C. were fully applicable in the case as once an accused would press the trigger, 5.324, P.P.C. would come into play‑‑‑ At least on 3/4 dates of hearing witnesses including injured prosecution witnesses were available on judicial record, but case was adjourned on one pretext or the other‑‑‑Bail application was dismissed with direction to conclude the trial within two months.

Ch. Azmat Khan for Petitioner.

Zafar Iqbal Chowhan for the Complainant.

Mian Muhammad Rafi for the State.

Date of hearing: 29th January, 2003.

2004 P Cr. L J 976

[Lahore]

Before Tanvir Bashir Ansari, J

MUKHTAR KHAN‑‑‑Petitioner

Versus

S.H.O. POLICE STATION WARIS KHAN DISTRICT RAWALPINDI and another‑‑‑Respondents

Writ Petition No.3475 of 2002, heard on 19th February, 2004.

Constitution of Pakistan (1973)‑‑‑--

‑‑‑‑Art. 199‑‑‑Criminal Procedure Code (V of 1898), S.154‑‑‑West Pakistan Anti‑Corruption Establishment Ordinance (XX of 1961), S.8‑‑­Punjab Anti‑Corruption Establishment Rules, 1985, Rr.6, 7 & 8‑‑‑Penal Code (XLV of 1860), Ss.409/420/468/471‑‑‑Constitutional petition‑‑­Quashing of F.I.R.‑‑‑Petitioner had sought quashing of F.I.R. mainly on the ground that S.H.O. concerned had no jurisdiction in the matter and that entire proceedings commenced by him were coram non judice‑‑­According to Provisions of S.8 of West Pakistan Anti‑Corruption Establishment Ordinance, 1961, Provisions of said Ordinance were in addition to and not in derogation of any other law for the time being in force‑‑‑Such fact would clearly show that Provisions of Criminal Procedure Code were meant to be kept intact‑‑‑Rules 6, 7 & 8 of Punjab Anti‑Corruption Establishment Rules, 1985; in circumstances could not be interpreted to have an overriding effect upon the provisions of S.154, Cr.P.C‑‑Punjab Anti‑Corruption Establishment Rules, 1985, could not supersede, super impose or be construed in excess of all the parameters laid down in parent Ordinance, viz S.8 of West Pakistan Anti ­Corruption Establishment Ordinance, 1961‑‑‑Provisions of Rules, 6, 7 & 8 of Punjab Anti‑Corruption Establishment Rules, 1985 being subordinate legislation, could not control or override S.8 of West Pakistan Anti‑Corruption Establishment Ordinance, 1961 or S.154, Cr.P.C.

Muhammad Sharif v. S.H.O. PLD 1999 Lah. 692; Muhammad Afzal v. Muhammad Siddiq 1992 MLD 311; Aasia v. The State PLD 1996 Lah. 45; Muhammad Iqbal, A.‑S.I. v. S.H.O. 2000 PCr.LJ 1924; Mirza Muhammad Iqbal v. Government of Punjab PLD 1999 Lah. 109 and Shafqat Hussain and another v. Malik Sarfraz, Inspector Circle Office A.C.E. Hafizabad and another 2000 PCr.LJ 1995 ref.

Syed Hamid Ali Bokhari for Petitioner.

Tanvir Iqbal Khan Asstt. A.‑G. for the Respondents.

Date of hearing; 19th February, 2004.

2004 P Cr. L J 983

[Lahore]

Before Maulvi Anwarul Haq, J

ZAMURRAD PERVAIZ and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.214/B of 2004, decided on 3rd March, 2004.

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

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(2)‑‑‑Bail, .grant of‑‑‑Accused according to the F.I.R. itself were lawfully married and their Nikahnama was available ‑‑‑Nikah Registrar had no authority to cancel the Nikahnama‑‑­Marriage could only be dissolved either by the husband by pronouncing divorce in the prescribed manner or by the Family Court on the application of the wife‑‑‑Allegation that the existing wife had not consented to the said marriage was only an offence under the Muslim Family Laws Ordinance, 1961, which was not cognizable by police and Court could take cognizance and proceed in the matter only upon the complaint of the existing wife‑‑‑Accused were admitted to bail in circumstances.

Syed Zulfiqar Abbas Naqvi for Petitioners.

Ch. Riaz Hussain for the State.

2004 P Cr. L J 990

[Lahore]

Before Khawaja Muhammad Sharif Ch. Iftikhar Hussain, JJ

LIAQAT ALI and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.747 and Murder Reference No.483 of 2000, heard on 14th January, 2004.

Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑S. 302(b)/34‑‑‑Appreciation of evidence ‑‑‑F.I.R. was not recorded at Police Station, but had been registered in connivance with the police after consultation and deliberation‑‑‑Eye‑witnesses being not residents of the place of occurrence were chance witnesses and they had not seen the occurrence‑‑‑Motive set up by the prosecution was not proved‑‑­Medical evidence was in conflict with ocular testimony‑‑‑Despite alleged firing by six accused no crime‑empty was recovered from the spot and recovery of rifle at the instance of accused was of no consequence in absence of such recovery‑‑‑Accused were acquitted in circumstances.

Syed Zahid Hussain Bukhari and Dr. Shaukat Hussain for Appellants.

Muhammad Azam Malik for the State.

Date of hearing: 14th January, 2004.

2004 P Cr. L J 1007

[Lahore]

Before Sh. Hakim Ali, J

Rana SHAHID FAROOQ and others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.331/B of 2004/BWP decided on 25th March, 2004.

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

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), Ss.324/337‑H(ii)/148/149‑‑‑Pre­arrest bail, grant of‑‑‑Principles‑‑‑For claiming concession of bail before arrest, accused had to show that police was out to arrest them with mala fide intention‑‑‑Period between registration of case against accused and filing of bail application of accused which was more than two months, in the present case, had negated mala fides on part of police/prosecution because if police had motive to falsely involve accused, it would have arrested them in the beginning and had not spared them to remain free for a period of more than two months‑‑‑Trial Court declined pre‑arrest bail to accused, but said denial would not motivate or activate police to arrest accused‑‑‑Such uninterested ness of police, had also supported the conclusion that police was not chasing accused‑‑‑Alleged ground of contradiction in the Medico Legal Report qua the story narrated in F.I.R., was not tenable as Medico Legal Report had shown that alleged injury could be inflicted by Fire‑arm weapon‑‑‑Ground of alleged contradiction had disappeared after finding and report of Doctor‑‑‑Even such fact needed a deeper examination and could not be appreciated at bail stage‑‑‑Accused alleged fight between parties and claimed that informant party was aggressor‑‑‑Question as to who was aggressor, would be decided by police during its investigation and before such opinion of the police was given it could not be held that accused were completely innocent‑‑‑1n absence of exceptional and extraordinary circumstances for grant of pre‑arrest bail to accused, their application could not be accepted.

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

‑‑‑‑S. 498‑‑‑Pre‑arrest bail, grant of‑‑‑Grounds‑‑‑Principles‑‑‑To get concession of pre‑arrest bail, mala fides on the part of prosecution, especially the police, had to be shown through some cogent reasons‑‑­Immediate apprehension of arrest was also another ground for grant of concession of pre‑arrest bail‑‑‑Where innocent and respectable person was going to be involved in a case so as to humiliate him and degrade him in the eyes of the Society to gain some advantage and to take indirect benefit, it was also a ground necessary for grant of concession of pre‑arrest bail‑‑‑Concession of pre‑arrest bail was a remedy of an exceptional and extraordinary nature which had to be granted in exceptional cases and discretion had to be used with care and caution in given circumstances‑‑‑If in all cases, concession of pre‑arrest bail was allowed to each and every accused of a case, process of investigation would be strangulated and police would not be able to complete its investigation in a smooth way.

Mumtaz Hussain Bazmi for Petitioners.

2004 P Cr. L J 1012

[Lahore]

Before Khawaja Muhammad Sharif Ch. Iflikhar Hussain, JJ

SHAUKAT ALI ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1438 and Criminal Revision No.762 of 2000, heard on 14th January, 2004.

Penal Code (XLV of 1860)‑‑‑--

‑‑‑S. 302‑‑‑Appreciation of evidence ‑‑‑F.I.R. was lodged with a delay of 12 hours though distance between the place of occurrence and police station was five kilometers only‑‑‑Complainant had been taking different stands at different stages‑‑‑Police did not join in investigation the shopkeeper from whom the accused had purchased the poisonous pills, nor took into possession the utensils in which the tea was administered to the deceased‑‑‑Sister of the deceased had negated the presence of the complainant at the house when the deceased was brought there‑‑­Possibility of the deceased having committed suicide could not be ruled out‑‑‑Prosecution story that the accused after giving poisonous pills to the deceased had himself brought him to his house to create evidence against him, did not appeal to reason‑‑‑Motive for the murder of the deceased that he owed Rs.150 to the accused, was not believable‑‑‑Medical evidence did not support the time of occurrence given by the prosecution‑‑‑Glaring doubts were apparent on the face of the record‑‑‑Accused was acquitted on benefit of doubt in circumstances.

Ch. Muhammad Nawaz Sulehria for Appellant.

Fazal Hussain Jafree for the State.

Date of hearing: 14th January, 2004.

2004 P Cr. L J 1028

[Lahore]

Before Khawaja Muhammad Sharif, J

KHALID MAQSOOD‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.7464/B of 2003, decided on 13th January, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Bail, grant of‑‑­Complainant, father of the deceased woman, was not an eye‑witness of the occurrence‑‑‑Deceased had signed a paper in which she had categorically stated that she had got her burnt by sprinkling kerosene oil on her body and that the accused wag also burnt in an effort to save her‑‑‑Dying declaration, made by the deceased was found to be ‑doubtful in police investigation and the case against accused was also found to be false‑‑Guilt of accused needed further probe as envisaged by S.497(2), Cr.P.C.‑‑‑Accused was admitted to bail in circumstances.

Ch. Naseer Ahmad Bhutta for Petitioner.

Sh. Asghar Ali for the State.

2004 P Cr. L J 1035

[Lahore]

Before Sh. Hakim Ali, J

MUHAMMAD ANSAR‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1491 of 2003/BWP, decided on 15th March, 2004.

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

‑‑‑--S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/34‑‑‑Bail, grant of‑‑­Accused was not attributed the role of catching hold of collar of deceased from the reverse or the front side near the neck of deceased or pressing it which caused death of deceased‑‑‑Prima facie, it appeared that occurrence was not preplanned, but had taken place at the spur of the moment‑‑‑No lethal weapon was brought to the place of incident which fact itself, was presenting the true picture of the intention of the accused‑‑‑Use of abusive language when continued unrestrained, then the consequences and its repercussion, appeared in the shape of reported incident‑‑‑Keeping accused in jail for an indefinite period would serve no purpose as trial had not yet commenced‑‑‑Accused was admitted to bail, in circumstances.

Ali Asghar and another v. The State PLD 1985 Kar. 609; Shaukat Ali and others v. The State 1986 PCr.LJ 2585; M. Hayat and others v. The State 1983 PCr.LJ 260; Muhammad Afzal v. The State 1990 PCr.LJ 928; Nasrullah v. The State 1990 MLD 140; Moula Dad v. The State 2000 PCr.LJ 1096; Munawar v. The State 1981 SCMR 1092; Khadim Hussain and others v. Shabbir Afzal and another 2002 PCr.LJ 794; Rana Muhammad Safdar v. Gulzar Ali alias Papoo and another 1999 PCr.LJ 1; Muhammad Shahid v. The State 2002 SCMR 247 and Syed Sameer Rauf v. The State 2002 MLD 1311 ref.

Ch. Abdul Ghaffar Bhuttoa for Petitioner.

Javed Iqbal for the State.

Mumtaz Mustafa for the Complainant.

2004 P Cr. L J 1055

[Lahore]

Before Khawaja Muhammad Sharif and Ch. Iftikhar Hussain, JJ

SIKANDAR HAYAT‑‑‑Petitioner

Versus

THE STATE‑‑Respondent

Criminal Miscellaneous No.7418/B of 2003, decided on 12th January, 2004.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Bail, refusal of‑‑­Accused being Superintendent of the Jail was Incharge of the same‑‑­Occurrence had taken place in the jail when its inspection by the Sessions Judge was scheduled and his visit was very much in the knowledge of the accused‑‑‑Leave of accused on the day of occurrence spoke volumes against him‑‑Seven witnesses including the Jail Doctor, Head Warder and the accused detained in the jail at the relevant time, had implicated the accused‑‑‑Complainant had specifically alleged in the F.I.R. that the occurrence had taken place due to active connivance of the Jail. Authorities, because in absence thereof ammunition could not have reached inside the jail‑‑‑Four Judicial Officers had been murdered in the occurrence‑‑‑Case of accused by no, stretch of imagination was covered by S.322, P.P.C. which definitely was hit by the prohibitory clause of S.497(1), Cr.P.C.‑‑‑Bail was declined to accused in circumstances.

Aftab Ahmad Bajwa for Petitioner.

Syed Ghulam Abbas Shah with Tahir Tahir Faroow Cheema for the Complainant.

M. Muhammad Hanif Khatana, Addl.A.‑G. for the State.

2004 P Cr. L J 1062

[Lahore]

Before Khawaja Muhammad Sharif and Ch. Iftikhar Hussain, JJ

MUHAMMAD ZAHID and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.73 and 76 of 2000 and Murder Reference No.29 of 2000 heard on 17th November, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b)/34, 201/34 & 364‑‑‑Appreciation of evidence‑‑‑Occurrence was reported to the police after two days‑‑‑Concocted motive was introduced later on to falsely implicate the accused‑‑‑Prosecution witnesses had made many improvements at the trial‑‑‑Ocular account was not compatible with medical evidence‑‑‑Extra judicial confession allegedly made by accused in police custody before the complainant was not credible‑‑‑Recoveries of the holdings of the deceased from the accused were not believable‑‑‑Prosecution had, to stand on its own legs and not to take benefit of weakness of the defence‑‑‑Murder. of the deceased was a blind murder and case against accused was of no evidence‑‑‑Conviction could be awarded or maintained only on evidence coming from an unimpeachable source‑‑‑Accused were acquitted in circumstances.

Syed Azhar Hussain Shah and Hafiz Muhammad Yousaf for Appellants.

Fazal Hussain Jafree for the State.

Ch. Muhammad Ramzan for the Complainant.

Date of hearing: 17th November. 2003.

2004 P Cr. L J 1076

[Lahore]

Before Muhammad Farrukh Mahmud and Sh. Hakim Ali, JJ

MUZAFFAR MAHMOOD alias ZAFRI‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 106 of 2001/(BWP), decided on 1st April, 2004.

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

‑‑‑‑Ss. 9(c) & 25‑‑‑Criminal Procedure Code (V of 1898), S.103‑‑­Appreciation of evidence‑‑‑Search‑‑‑Reduction in sentence‑‑‑Mitigating circumstances‑‑‑Contradiction appeared in two statements of Police Officer one made in‑Court as prosecution witness and other made by him in F.I.R.‑‑‑F.I.R., showed that bag contained two separate black shoppers, one of which had 8 K.G. of Charas and other contained 3 K.G. opium‑‑‑Said Police Officer while appearing in Court as prosecution witness had deposed in his examination‑in‑chief that both these articles were wrapped in polythene papers, but no value could be given to said alleged contradiction as alleged statement was not confronted with ,previous statement in F.I.R.‑‑‑No independent public witness was associated during search of accused, but on that basis, case of accused could not be considered a case of acquittal because S.25 of Control of Narcotic Substances Act, 1997 had exempted application of mandatory provision of S.103, Cr.P.C. to all those searches and arrests‑‑‑Police officials were as good witnesses as the Public‑‑­Statement of all prosecution witnesses had been found consistent and confidence inspiring‑‑‑Conviction of accused was maintained‑‑‑Accused was first offender and had no previous record‑‑Case of accused had mitigating circumstances for which he could be granted remission in his sentence‑‑‑Maximum imprisonment of 14 years awarded to accused was reduced to 10 years' R.I. accordingly.

Shams‑ul‑Qamar Khattak for Appellant.

Ghazanfar Ali Khan for Respondent.

Date of hearing: 1st April, 2004.

2004 P Cr. L J 1084

[Lahore]

Before Muhammad Farrukh Mahmud, J

Mst. NASIM MAI ‑‑‑ Petitioner

Versus

THE STATE‑‑‑Respondent

Writ Petition No.311 of 2004/BWP, decided on 17th February, 2004.

Constitution of Pakistan (1973)‑‑‑--

‑‑‑‑Arts. 9, 15 & 25‑‑‑ Criminal Procedure Code (V of 1898), S.491‑‑­Habeas corpus petition‑‑‑Petitioner, who was sent. to Dar‑ul‑Aman' by order of Judicial Magistrate, moved an application under S.491, Cr.P.C. before Sessions Judge wherein she sought her release from 'Dar‑ul-­Aman', which application having been dismissed, petitioner had .filed Constitutional petition against said dismissal order‑‑‑Petitioner was sui juris and her consistent stand was that she did not want to accompany her parents as she apprehended a danger to her life at their hands‑‑­Article 25 of Constitution provided that all citizens were equal before law and entitled to equal protection of law and there would be no discrimination on the basis of sex alone‑‑‑Under Articles 9 & 15 of Constitution no citizen could be deprived of liberty and no restriction could be imposed on the freedom of citizen‑‑‑Sessions Judge being aware of legal status of petitioner, while passing impugned order, observed that petitioner could be sent to Dar‑ul‑Aman if she liked so‑‑‑Impugned order of Sessions Judge was ambiguous in nature as on the one hand Sessions Judge had imposed a condition on petitioner that she could only accompany the relative relating to her within the prohibited degree and on the other hand he ordered that she could be sent toDar‑ul‑Aman' if so liked‑‑‑Petitioner, in circumstances was never given a choice as she had filed petition with prayer to be set free‑‑‑No restriction on the movement of petitioner could be imposed by Sessions Judge‑‑‑High Court allowing petition, set aside order of Sessions Judge to the extent of restriction imposed‑‑‑Petitioner being sui juris citizen of Pakistan, was set free and she could lead a life of her own choice.

Mst. Afshan Bibi v. State 1998 SCMR 6 ref.

Qazi Fayyaz Ahmad for Petitioner.

Ahmad Mansoor Chishti, A.A.‑G. for the State.

Ghulam Haider Channer for Respondent No.4.

Date of hearing: 17th February, 2004.

2004 P Cr. L J 1089

[Lahore]

Before Sardar Muhammad Aslam, J

Makhdoom MUHAMMAD JAVED HASHMI‑‑‑Petitioner

Versus

CHIEF COMMISSIONER, ISLAMABAD‑‑‑Respondent

Writ Petition No.3432 of 2003, heard on 13th February, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 9(2)‑‑‑Islamabad Capital Territory (Administration) Order (18 of 1980), Art.2‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Jail trial‑order of‑‑‑Jurisdiction of Chief Commissioner/Administrator of Islamabad‑‑‑Accused was a political leader and was arrested under Ss.124‑A, 131, 468, 469,471, 500, 500‑A and 109, P.P.C.‑‑‑‑On the appearance of the accused in the Trial Court, law and order situation had been created by unruly supporters of the accused‑‑‑Chief Commissioner/Administrator of Islamabad directed trial of the accused in jail and the order of the authorities was supplemented by Trial Court‑‑‑Plea raised by the accused was that Chief Commissioner could not direct trial of the accused in jail as the jurisdiction under S.9(2), Cr.P.C. could only be exercised by Provincial Government ‑‑‑Validity‑‑­Chief Commissioner/Administrator of Islamabad was empowered under. Art.2 of Islamabad Capital Territory (Administration) Order, 1980, to exercise all the powers and duties conferred or imposed on Provincial Government under any law for the time being in force in Islamabad Capital Territory‑‑Chief Commissioner/Administrator of Islamabad was a Provincial Government and under S.9(2), Cr.P.C. was empowered to direct holding of trial of a case in jail premises‑‑‑District Magistrate, Home Department or Home Secretary for reasons of security or law and order situation or for any other valid reasons, might conduct the inquiry and place the matter before Trial Court which alone was competent to determine as to whether the trial should be held in: open Court or in jail premises and the Provincial Government in suitable cases could pass an order for trial of a case at a particular place if the reasons were bona fide‑‑‑Order of Chief Commissioner/Administrator of Islamabad directing jail trial was supplemented by the order of Trial Court itself‑‑‑Trial Court disapproved the situation and was of the opinion that normal trial in Court‑room would not be conducive to open trial and could not be held in a peaceful atmosphere‑‑‑Petition was dismissed in circumstances.

Shaikh Hafeez Ahmad v. The State through Secretary (Home), Government of the Punjab, Lahore PLD 1975 Lah. 1453; Akhlaq Ahmad v. Government of Punjab and others 1991 MLD 739; Asif Ali Zardari v. Special Judge, (Offences in Banks) and 10 others PLD 1992 Kar. 437; Shaukat Hayat v. Government of Sindh and another 1987 MLD 2783; Abdul Fatah and others v. The State 1990 MLD 1087; Reference made by Sessions Judge, Larkana for transfer of cases: 1990 PCr. LJ 1687; PLD 1992 Kar. 437; PLD 2003 Lah. 450 and 1990 MLD 1994 ref.

Sardar Muhammad Latif Khan Khosa and Muhammad Munir Paracha for Petitioner.

Munir Ahmad Bhatti, Special Prosecutor for Respondent.

Date of hearing: 13th February, 2004.

2004 P Cr. L J 1110

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD RAEES AKHTAR‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.122/B of 2004, decided on 28th January, 2004.

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

‑‑‑‑S. 498‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)‑‑‑Pre‑arrest bail, refusal of‑‑‑Allegation against accused was that he committed Zina‑bil‑Jabr with 11 years old daughter of his tenant‑‑‑Case had been registered at the statement of victim girl herself, who had no motive to involve accused in a false case‑‑‑Complainant and witnesses mentioned in F.I.R., had fully supported prosecution version‑‑­Offence was heinous and attracted provisions of prohibitory clause of S.497, Cr.P.C.‑‑‑Case of accused did not qualify for concession of pre­ arrest bail.

Murad Khan v. Fazal‑e‑Subhan and another PLD 1983 SC 82 ref.

Ch. Riaz Ahmad for Petitioner.

2004 P Cr. L J 1114

[Lahore]

Before Nasim Sabir, J

ABDUL MAJEED‑‑‑Petitioner

Versus

ABDUL REHMAN and another‑‑‑Respondents

Criminal Miscellaneous No.5/CB of 2004, decided on 24th February, 2004.

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

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), Ss.337‑F(i)/337‑F(ii)/337‑A(ii)/34‑‑‑Bail, cancellation of‑‑‑Bail application initially filed by accused before Magistrate having been dismissed on merits, he filed another bail application before Additional Sessions Judge which too was dismissed‑‑‑Accused thereafter filed bail application before, High Court, but same was dismissed having been withdrawn‑‑‑Accused had a right to approach High Court again provided any fresh ground was available to him, but instead of filing bail application before High Court, accused had adopted a short course and again approached Magistrate who granted bail to accused within the span of only 15 days on ground that now the challan had been submitted in the Court‑‑­Though no bar existed against repeating bail applications but that could only be done on availability of afresh ground‑‑‑Bail application filed by accused before Magistrate was not competent as no fresh ground was available to him to move Magistrate again‑‑‑Bail granting order of Magistrate being unsustainable in the eye of law, illegal and un­warranted was set aside.

PLD 1989 SC 585; 1999 YLR 2635 and 1996 PCr.LJ 810 ref.

Mian Ahmad Mehmood for Petitioner.

Farooq Ahmad for the State. .

Rae, Muhammad Anwar for Respondent No.2.

2004 P Cr. L J 1127

[Lahore]

Before Ijaz Ahmad Chaudhry, J

GHULAM HAIDER ‑‑‑Petitioner

Versus

THE STATE and 4 others‑‑‑Respondents

Writ Petition No.755 of 2004, decided on 24th February, 2004.

Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑S. 302(6)‑‑‑Criminal Procedure Code (V of 1898), Ss.425 & 426(3)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Alternate remedy‑‑‑Implementation of judgment of Trial Court‑‑‑Trial Court had convicted accused/ respondents under S.302(b), P.P.C. and such conviction was upheld up to High Court‑‑­Petitioner/complainant in his Constitutional petition had sought a direction to the Police to arrest convicts in implementation of judgment of High Court‑‑‑Accused/convicts were on bail after suspension of their sentence when their appeal was dismissed by High Court‑‑‑Under provisions of S.425, Cr.P.C., copy of judgment of High Court was to be certified to the lower Court which had originally passed judgment and same Court had to act upon directions/findings of High Court given in appeal‑‑‑Section 426(3), Cr.P.C. provided that period during which convicts were released after suspension of their sentence would be excluded in computing the term for which they were so sentenced‑‑­Petitioner, in circumstance had an alternate remedy by moving Trial Court or Sessions Judge to act in accordance with provisions of Ss.425 & 426(3), Cr.P.C., who were duty bound to issue warrants of commitment against convicts on receiving copy of judgment of High Court passed in appeal‑‑‑Petitioner had alternate remedy and Constitutional petition being misconceived, was not maintainable.

Rafique Ahmad Malik for Petitioner.

2004 P Cr. L J 1135

[Lahore]

Before Ijaz Ahmad Chaudhry, J

QAISAR MEHMOOD‑‑‑Petitioner

Versus

MUHAMMAD ASLAM and 2 others‑‑‑Respondents

Criminal Miscellaneous No.253/CB of 2003, decided on 16th February, 2004.

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

‑‑‑‑Ss. 497(5) & 498‑‑Application for cancellation of pre‑arrest bail granted to accused‑‑‑Police during investigation came to the conclusion that accused persons had not caused any injury with any weapon on the person of injured while other accused was found guilty‑‑‑Police also had prepared a discharge report of said accused on basis of result of investigation‑‑‑Police opinion though was not binding on Court, but same could be considered at bail stage‑‑‑Application for cancellation of bail of the accused, was dismissed.

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

‑‑‑‑S. 497‑‑‑Bail‑‑‑Police opinion‑‑‑Police opinion though was not bind­ing on Courts, yet same could be considered at bail stage.

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

‑‑‑‑Ss. 497(5) & 498‑‑‑Penal Code (XLV of 1860), Ss.337‑A(ii), 337‑F(v) & 337‑A(i)/34‑‑‑Bail before arrest, cancellation of‑‑‑Accused was named in F.I.R. with specific role of causing injury with hatchet on the head of injured which was vital part of the body‑‑‑Accused was also found guilty during investigation‑‑‑No reason existed for false implication of the accused‑‑‑Bail before arrest was only meant to protect innocent citizens, if they were found to be involved in a case with mala fide intention or ulterior motive‑‑‑Recovery was yet to be effected from the accused‑‑‑Case of the accused being not fit for grant of bail, discretion was not properly exercised by Trial Court in granting bail to him‑‑‑Application for cancellation of bail was accepted and pre‑arrest bail granted to him was cancelled.

Muhammad Qadir Asif Toor for Petitioner.

Ghulam Mustafa Chohan for Respondents Nos. 1 and 2.

Shaukat Ali Kharal for the State.

2004 P Cr. L J 1144

[Lahore]

Before Ch. Iftikhar Hussain, J

MAZHAR ABBAS‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Criminal Revision No, 193 of 2004, decided on 17th March, 2004

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 200‑‑‑Penal Code (XLV of 1860), Ss.324/337‑A(i)/ 337‑F(iii)/34----Private complaint‑‑‑Summoning of accused‑‑‑Complainant brought private complaint against accused before Judicial Magistrate‑‑­Complainant led preliminary evidence and Judicial Magistrate who was seized of the matter, after inquiry found that offence against accused had been made out and submitted case to Additional Sessions Judge alongwith his inquiry report‑‑‑Additional Sessions .nudge observing that accused prima facie were connected with alleged offence on basis of preliminary evidence brought on record, ordered their summoning to face trial‑‑Accused had alleged that complaint against them, in fact was a counterblast and that Medico‑legal Reports produced by complainant in support of her plea in private complaint were bogus and on basis of the same petitioners could not be summoned by Court‑‑‑Complainant, besides herself had produced three witnesses in support of her allegations against petitioners and Additional Sessions Judge after perusing report submitted by Judicial Magistrate, had observed that prima facie sufficient material was available on record to connect petitioners with offence allegedly committed by them‑‑‑Plea of petitioners that complaint against them was counter‑blast and that Medico‑legal Reports were bogus required to be proved in due course of trial‑‑‑Petitioners, ought to have agitated such questions before the Court concerned in a proper way‑‑­Petitioners, in circumstances, were rightly summoned‑‑‑No case for interference with order of Sessions Judge having been made out, revision petition filed by petitioners, was dismissed.

Mian Aman Ullah Khan Chaughata for Petitioner.

2004 P Cr. L J 1151

[Lahore]

Before Nasim Sabir, J

MUHAMMAD IQBAL‑‑‑Petitioner

Versus

HAKEEM MUSHTAQ and 9 others‑‑‑Respondents

Criminal Appeal No.677 of 2003, decided on 16th February, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 417 & 249‑A‑‑‑Penal Code (XLV of 1860), Ss.420/468/471/109­‑‑Appeal against acquittal ‑‑‑Application filed by accused under S.249‑A, Cr.P.C. for their acquittal was dismissed by Trial Court, but Appellate Court on filing revision, acquitted accused under S.249‑A, Cr.P.C.‑‑­Previously, father of complainant had got a criminal case registered against acquitted accused under the same provision of P.P.C., but after due investigation case having been found false and baseless, accused were discharged from the case‑‑‑After discharge from earlier case, complainant who was son of the complainant ‑in earlier case and was living with his father, got the present case registered against accused persons against whom earlier case was discharged, on same set of facts and against same set of accused persons‑‑Dispute between parties was with regard to legitimacy of a child about which civil cases were pending adjudication, before civil Courts which would be decided by Courts of competent jurisdiction after recording evidence and same could not be decided by criminal Courts‑‑‑Accused had suffered the agony of protracted trial since 1995 when first case was got registered against them by father of complainant and it could not be hoped that present case would be concluded in near future‑‑‑Outcome of civil proceedings pending in civil Courts between parties, would be the basis of, criminal proceedings‑‑‑If Civil Court would come to the conclusion that document with regard to birth of child was forged and that on the basis of said document, mutation of inheritance had been manoeuvred, then even Civil Court could order registration of case against person responsible for commission of any offence‑‑‑Appellant had failed to point out any illegality or infirmity in order passed by Appellate Court whereby accused were acquitted under S.249‑A, Cr.P.C.‑‑‑In absence of any perversity of reasoning in the order of Appellate Court below, same, could not be interfered with by High Court.

Baha‑ud‑Din v. Mehr Ahmad Raza. Additional Sessions Judge Jhang PLD 1993 SC 399 ref.

Altaf Ibrahim Qureshi for Petitioner.

Muhammad Azam for the State.

Rashid Rehman for the Complainant.

2004 P Cr. L J 1158

[Lahore]

Before Mian Muhammad Akram Baitu, J

ASHIQ MUHAMMAD‑‑‑Appellant

Versus

SHAUKAT ALI and others‑‑‑Respondents

Criminal Appeal No. 108 of 1995, heard on 12th February, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 417(2) & 492‑‑‑Central Law Officers Ordinance (VII of 1970), S.4‑A [as inserted by. Central Law Officers (Amendment) Act [(XVII of 1985)]‑‑‑Pakistan Criminal Law Amendment Act (XL of 1958), S.10(ii)‑‑‑Penal Code (XLV of 1860), Ss.409/420/468/471‑‑‑Appeal against acquittal‑‑‑Appeal was filed by a private counsel and was not presented by Public Prosecutor within the meaning of S.492, Cr.P.C.‑‑­Additional Attorney General, Deputy Attorney General and Standing Counsel, who also had been notified to be the Public Prosecutor, had the authority to institute, file and conduct any proceedings on behalf of Federal Government under provisions of S.4‑A of Central Law Officers Ordinance, 1970‑‑‑Appeal against acquittal having not arisen the judgment of Special Judge Anti‑Corruption (Central), but had come out of judgment of Special Judge Anti‑Corruption, Punjab, only Public Prosecutor was competent to institute, file and conduct proceedings including appeal and revision on behalf, of Provincial Government in view of relevant provisions of subsection (ii) of S.10 of Pakistan Criminal Law Amendment Act, 1958‑‑‑Appeal against acquittal having not been signed by any of Public Prosecutors, but having been signed by private counsel, who was not competent to file said appeal, appeal stood dismissed being not maintainable.

1998 PCr.LJ 1503 and 1989 PCr.LJ 1842 ref.

Sardar Muhammad Latif Khan Khosa for Appellant.

Nishat Ahmed Siddiqui for Respondent.

Muhammad Sabir Qureshi for the State.

Date of hearing: 12th February, 2004.

2004 P Cr. L J 1163

[Lahore]

Before Muhammad Khalid Alvi and M.A. Shahid Siddiqui, JJ

Mian MUHAMMAD IDREES and others‑‑‑Petitioners

Versus

THE STATE and others‑‑‑Respondents

Writ Petition No. 5633 of 2003, heard on 25th March, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 352‑‑‑Control of Narcotic Substances Act (XXV of 1997), S.9(c)‑‑‑High Court (Lahore) Rules and Orders, Vol. III, Chap. I, Part A(3)‑‑‑Place for holding Criminal Court for trial‑‑‑Criminal trial should always be held in an open Court where general public could have an easy access; in exceptional circumstances, Presiding Judge or Magistrate, however, could deny access to public in general or any particular person‑‑‑Similar provision was contained in Volume III, Chapter 1, Part A(3) in Rules and Orders of (Lahore) High Court, which had given discretion to Presiding Officer alone to hold trial in jail and for that purpose, Trial Court had to make a reference to obtain the sanction of Government.

Sardar Muhammad Latif Khan Khosa assisted by Ch. Pervaiz Aftab for Petitioners.

Muhammad Mumtaz Malik for Respondents.

Date of hearing: 25th March, 2004.

2004 P Cr. L J 1166

[Lahore]

Before Abdul Shakoor Paracha, J

MUHAMMAD KHAN‑‑‑Petitioner

Versus

MUHAMMAD IJAZ and another‑‑‑Respondents

Criminal Miscellaneous No. 528/BC/2004, decided on 11th March, 2004.

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

‑‑‑‑S. 497(5)‑‑‑Bail, cancellation of‑‑‑Maintainability of the petition for bail, directly before High Court‑‑‑Ordinarily, where the accused, after release on bail, misuses the same, interferes in the trial proceedings, extends threats to the witnesses or hinders in conclusion of the trial, the Court granting bail can cancel the same, on the basis of evidence before it, but if the bail granting order is without jurisdiction having been passed without observing the mandatory provisions of law or law laid down by superior Courts, the High Court has jurisdiction to entertain the application under section 497(5), Cr.P.C. directly for cancellation of bail of the accused.

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

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), Ss.324/109/337‑F(iii) & (vi)‑‑‑Bail, cancellation of‑‑‑Sessions Court had released the accused on bail only on the ground that the Trial Court had not concluded the trial within the period specified by it‑‑‑Record had revealed that both the parties had contributed in delay in disposal of the case‑‑‑Bail under S.497, Cr.P.C. could only be granted to accused by the Court after recording a definite finding that no reasonable grounds existed to believe his involvement in the case and that further inquiry was needed therein‑‑­Accused was nominated in the F.I.R. with a specific role of firing and causing eight fire‑arm injuries to the victim‑‑‑Offence under S.324, P.P.C. was hit by the prohibitory clause of S.497(1), Cr.P.C.‑‑‑Order granting bail to accused, thus, was illegal and without jurisdiction and the same was recalled accordingly.

Mirza Khan v. Lal Khan and another 1976 PCr.LJ 324; Barkat Ahmad v. Said Akbar and 2 others 1981 PCr.LJ 1208; The State v. Zahid Rasool 1990 PCr.LJ 340; Nazir v. Amir Din and another 1971 SCMR 637 and Arbab Ali v. Khamiso and others 1985 SCMR 195 ref.

Malik Muhammad Azam Awan for Petitioner.

Muhammad Shan Gul for Respondent No. 1.

Dil Muhammad for the State.

2004 P Cr. L J 1169

[Lahore]

Before Muhammad Muzammal Khan, J

TARIQ NAVEED AHMED ‑‑‑Petitioner

Versus

ALLAH DITTA and 2 others‑‑‑Respondents

Writ Petition No. 14581 of 2003, decided on 19th February, 2004.

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

‑‑‑‑Ss. 516‑A & 517‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Criminal case against the petitioner ‑‑‑Superdari of a tractor, as case property, given to the respondent by the Magistrate‑‑‑Dismissal of application for Superdari of tractor by petitioner claiming himself as the owner‑‑‑Criminal Court is not competent to determine question of title or ownership of the property, as it can only be decided after the recording of evidence, and for this purpose civil Court is the proper forum.

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

‑‑‑‑Ss. 516‑A & 517‑‑‑West Pakistan Civil Courts Ordinance (II of 1962), Ss.10 & 15‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Jurisdiction for Superdari of tractor by petitioner‑‑‑Dismissal of application‑‑‑Magistrate, powers and jurisdiction of‑‑‑Limits of territorial jurisdiction‑‑‑Contention of the petitioner that the Senior Civil Judge/Magistrate S.30, who decided the Superdari application, had no jurisdiction to deal with the cases of the police station, where the F.I.R. was registered, as that police, station was excluded from the control of the said Magistrate by an administrative order of the Sessions Judge‑‑‑Validity‑‑‑Every Civil Judge has jurisdiction throughout the District where he is posted and on the basis of mere administrative distribution of work by the Sessions Judge, it cannot be said that the order if any, passed by him with regard to police station not given in his control, is without jurisdiction‑‑‑Civil Judge posted in some District has jurisdiction over the entire District, and the allocation of specified areas for work by the Sessions Judge is only for convenience and administrative purposes.

Jamil Ahmad v. Sayed Muhammad Ali and another PLD 1977 Kar. 901 ref.

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

‑‑‑‑Ss. 516‑A & 517‑‑‑Civil Procedure Code (V of 1908), O.IX, R.4‑‑­Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition ‑‑­Superdari of a tractor, as case property, given to the respondent by the Magistrate‑‑‑Dismissal of application for Superdari of the said tractor by the petitioner‑‑‑Contention of the petitioner was that the tractor was recovered from him with regard to a criminal case, however, he was later acquitted from the said case, therefore, he was the owner of the tractor and possession of the same should be given to him‑‑‑Acquittal of the petitioner from the criminal case by the Magistrate did not ipso facto prove that he was the owner of the tractor.

(d) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. IX, R.4‑‑‑Dismissal of suit under O.IX, R.4, C.P.C.‑‑‑Contention of the petitioner was that the respondent's suit for declaration with regard to the title of tractor was dismissed by the Court, therefore, he was not owner of the tractor‑‑‑Dismissal of respondent's suit for declaration with regard to tractor, under O.IX, R.4, C.P.C. due to non­-deposit of process fee, did not convey that the petitioner was the owner‑‑‑Dismissal of suit under O.IX, R.4, C.P.C. was no determination, created no title and not deprive the plaintiff of the rights claimed in the suit because under said provisions plaintiff had been given a right to have the suit revived or to file any fresh suit, on the same cause of action, subject to the period of limitation.

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

‑‑‑‑Ss. 516‑A, 517 & 561‑A‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Maintainability‑‑‑Superdari of a tractor, as case property, given to the respondent by the Magistrate‑‑‑Application for Superdari of tractor by petitioner, dismissal of‑‑‑Objection of the respondent was that the petitioner could not have filed a Constitutional petition in criminal proceedings, in presence of remedy provided by Criminal Procedure Code, 1898, by way of a petition under S.561‑A‑‑­Validity‑‑‑Exercise of Constitutional jurisdiction by the High Court in criminal prosecution was not proper, .particularly when remedy had been provided under relevant statute‑‑‑Petition was dismissed.

Sindh Quality Control Board of Drug and. another v. Messrs Pioneer Laboratories, Karachi and 6 others 1993 SCMR 1177 ref.

Ch. Irshad Ullah Chatta for the Petitioner.

Mian Muhammad Nawaz for Respondent No. 1.

2004 P Cr. L J 1175

[Lahore]

Before Muhammad Farrukh Mahmud, J

Mst. RAZIA BIBI‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Writ Petition No. 3820 of 2001, heard on 18th February, 2004.

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

‑‑‑‑Ss. 4, 10(2) & 11‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Quashing of F.I.R.‑‑‑Petitioner/alleged abductee and co‑accused had contracted marriage through a Nikah Nama, which had presumption of truth and both were living as husband and wife and in said wedlock, two children had born‑‑‑Petitioner did not support prosecution case and had categorically stated that she was not abducted, but she had contracted marriage with co‑accused with her free consent‑‑­Petitioner was more than 18 years at time she contracted marriage with co‑accused according to age certificate issued by Board of Doctors‑‑­Petitioner, in circumstances was sui juris at the time of her marriage and could not be said to have committed Zina‑‑‑High Court allowing petition quashed F.I.R. as well as proceedings pending before Trial Court.

Mian Muhammad Tayyib Wattoo for Petitioner.

M.A. Farazi for Respondents.

Date of hearing: 18th February, 2004.

2004 P Cr. L J 1179

[Lahore]

Before M. Javed Buttar and Muhammad Muzammal Khan, JJ

MUHAMMAD HUSSAIN ‑‑‑ Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.909 of 2002, heard on 24th February, 2004.

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

‑‑‑‑S. 9(c)‑‑‑Appreciation of evidence‑‑‑Recovery of huge quantity of narcotics from the accused was proved on record by all the five prosecution witnesses who had no malice or enmity against him‑‑­Minor discrepancies in prosecution evidence due to lapse of time had neither vitiated the trial nor made the recovery doubtful‑‑­Recovered, narcotics were certified by the Chemical Examiner to be "Charas" and heroin‑‑‑State functionaries, who had supported the prosecution case, were trustworthy and reliable like private witnesses as they had no interest to falsely depose against the accused and conviction on the basis of their statements could lawfully be passed‑­‑Defence plea taken by accused was not corroborated by any evidence on record and the same alone could not refute the impact of prosecution testimony‑‑‑Conviction and sentence of accused were upheld in circumstances.

Shahmore v. The State PLD 2003 Kar. 230; Dris v. The State 2001 YLR 3078; Iltaf Hussain v. The State 1996 SCMR 167; Maulvi Ghulam Rasool v. Administrator Auqaf, Sindh and another 1976 SCMR 73; Sikandar and 2 others v. The State PLD 1978 SC 185; Gul Nawaz v. The State 1998 PCr.LJ 1730; Feroze Shah v. The State 2002‑PCr.LJ 1470 and Mirza Shah v. The State 1992 SCMR 1475 ref.

Ashiq Hussain Malik and Nadeem Kausar for Appellant.

Ch. Muhammad Suleman, Addl. A.‑G. for the State

Date of hearing: 24th February, 2004.

2004 P Cr. L J 1214

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD ASLAM‑‑‑Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and others‑‑‑Respondents

Writ Petition No.5007 of 2004, decided on 22nd April, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 22‑A & 154‑‑‑Constitution of Pakistan (1973), Art.199‑‑Constitutional petition‑‑‑Hearing of accused not necessary in proceeding under Ss.154 & 22‑A, Cr.P.C.‑‑‑Police Officer is under statutory obligation under S.154, Cr.P.C., to register a case on receiving information relating to commission of a cognizable offence without entering into inquiry and without hearing the accused persons‑‑‑Failure of the concerned Police Officer to register a complaint so made amounts to failure to discharge statutory obligations which attracts provisions of S.22‑A, Cr.P.C.‑‑‑Since no hearing was needed for proceeding under S.154, Cr.P.C., consequently the Sessions Court was under no obligation to hear the accused while seeking enforcement of the said provisions‑‑‑Impugned order did not suffer from any legal infirmity‑‑‑Constitutional petition was dismissed accordingly.

Saeed Ahmed and‑others v. Naseer Ahmed and others PLD 2000 Lah. 208; Sana Ullah v. S.H.O. Police Station Civil Lines, Gujrat and 3 others PLD 2003 Lah. 228 and Mst. Gul Reza and others v. The State and others 2002 PCr. LJ 9 ref.

Ghulam Hussain Malik for Petitioner.

Taffazul H. Rizvi for Respondent No.4.

2004 P Cr. L J 1228

[Lahore]

Before Ch. Iftikhar Hussain, J

SHAKIL HAIDER and 3 others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1477/B of 2004; decided on 5th May, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/324/148/149‑‑‑Bail, grant of‑‑‑Further inquiry ‑‑‑F.I.R., showed that accused persons in main incident were simply raising Lalkara and firing in the air‑‑‑Accused neither had caused any injury nor aimed firing at anyone and they had also not been attributed any overt act‑‑‑Accused during investigation by different officers had been found to be not involved in the matter‑‑­Report of Investigating Officer revealed that complainant had avoided to appear before him and failed to produce eye‑witnesses during investigation and had not cooperated‑ ‑‑Report for discharge of accused from case prepared by police was not agreed to by the Magistrate concerned‑‑‑Police in that report had opined that accused were innocent in the matter and their names had been placed in Column No.2 of that report‑‑‑No empty had been recovered from the spot and even no recovery of crime weapon was effected from any of them‑‑‑Opinion of police though was not binding upon the Court, but still it was relevant to be taken into consideration while deciding question of grant or otherwise of bail‑‑‑Finding of innocence of accused was based upon material available on the record and it was not without any basis‑‑‑No reason existed to believe that accused had committed a non‑bailable offence and there was a ground for further inquiry into guilt of accused‑‑Case of accused, in circumstances was covered under S.497(2), Cr.P.C:‑‑‑Trial of case had not commenced‑‑‑Accused were found entitled to bail, in circumstances.

Abdul Rehman v. Javed and 2 others 2002 SCMR 1415; Dr. Muhammad Aslam v. The State 1993 SCMR 2288; Nek Muhammad v. The State 1991 SCMR 1630 ref.

Munir Ahmad Bhatti for Petitioners.

Bashir Ahmad Gill for the State.

Ehtesham Qadir Shah for the Complainant.

2004 P Cr. L J 1254

[Lahore]

Before Ch. Iftikhar Hussain, J

JEHANGIR‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2389/B of 2004, decided on 7th May, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/324/109/148/149‑‑­Bail, grant of‑‑‑Further inquiry ‑‑‑F.I.R., showed that accused had fired shot with 8 mm. Rifle at deceased which hit at his left hip joint‑‑‑Two injuries on the body of deceased had been found on the post‑mortem examination‑‑‑One of those injuries was entry wound and the other its exit‑‑‑Exit wound had been described as injury No.2 in the report and same was at left hip joint‑‑‑Apparently same was not an independent injury‑‑‑Conflict was found in ocular version in respect of role of accused‑‑‑During investigation by local police accused had been found to be innocent and according to Range Crime Police he had not participated in the occurrence‑‑‑Opinion of police though was not binding upon Court, but it was relevant circumstance to be taken into consideration while determining such question‑‑‑Nothing had been recovered from accused‑‑‑All said facts definitely rendered his case as one of further inquiry into his guilt covered under subsection (2) of S.497, Cr.P.C.‑‑­Accused was stated to be previous non‑convict‑‑‑Accused was admitted to bail, in circumstances.

Abid Saqi for Petitioner.

Mrs. Sadia Altaf Khan for the State.

Ghulam Mustafa Shehzad for the Complainant.

2004 P Cr. L J 1259

[Lahore]

Before Asif Saeed Khan Khosa, J

NASIR MEHMOOD‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.6352/B of 2003, decided on 21st November, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), S.354‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18‑‑‑Bail, grant of‑‑‑Further inquiry ‑‑‑F.I.R. had been lodged with a delay of three days and case was one of attempt only which had remained abortive‑‑‑Alleged victim had never been medically examined‑‑‑Complainant party had not claimed that the clothes of alleged victim had been torn during the alleged incident or that her clothes had been taken off so as to commit Zina or Zina‑bil‑Jabr with her‑‑‑No attempt had been made at penetration which was the basic ingredient of offence of Zina or Zina‑bil‑Jabr‑‑ ­Question whether allegations contained in F.I.R. attracted provisions of S.18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 or the provisions of S.354, P.P.C., was a question which called for further probe and same would be attended to by Trial Court at the time of trial on the basis of evidence to be led before it‑‑‑Record showed that accused had sustained as many as six injuries including some serious ones during alleged occurrence and he was got medically examined by police itself and accused had already advanced a counter‑version of the incident‑‑­Challan in the case had already been submitted after completion of investigation‑‑‑Continued custody of accused in jail, was not likely to serve any beneficial purpose, in circumstances‑‑‑Case against accused calling for further inquiry into his guilt within purview of subsection (2) of S.497, Cr.P.C., he was admitted to bail, in circumstances.

Muhammad Aurang Zeb Mir for Petitioner.

Zeeshan Aslam for the State.

Date of hearing: 21st November, 2003.

2004 P Cr. L J 1273

[Lahore]

Before M. Javed Buttar and Muhammad Muzammal Khan, JJ

JOSHUA CHIGBOGU‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.2195 of 2003, heard on 10th February, 2004.

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

‑‑‑‑Ss. 9 & 15‑‑‑Appreciation of evidence‑‑‑Prosecution had established its case against accused. beyond reasonable doubt‑‑‑Trial Court, in circumstances had correctly recorded conviction of accused‑‑‑Accused had not assailed his conviction, but had prayed for reduction in sentence on the grounds that he was a foreigner and keeping him in jail would not serve any useful purpose and that he wanted to leave the country‑‑­Validity‑‑‑No distinction could be made between a foreigner and a local in sentencing such an accused‑‑‑Control of Narcotic Substances Act, 1997 which was a special jaw, did not create any such distinction and it was equally applicable to the foreigners as well as to the locals‑‑­Creation of such a special distinction and lenient dealing with the foreigners in matters of awarding sentences would amount to encouraging foreigners to indulge in narcotics smuggling in Pakistan‑‑­Law would cease to be a deterrent for foreigners, if they were sentenced leniently‑‑‑Such a distinction would defeat the objectives of law.

Obic Funs Emaruel v. The State 1991 PCr.LJ 1705; Khushnood Ahmad v. The State 1991 PCr. LJ 1920; Saleh Dowson v. The State 1991 PCr.LJ Note 123; Ahmad Kabix v. The State 1.983 PCr.LJ 2299 and Haji Naik Muhammad v. The State 2001 PCr.LJ 1160 ref.

Abdul Lateef Chaudhry for Appellant.

Ch. Muhammad Suleman A.A.‑G. for Respondent.

Date of hearing: 10th February, 2004.

2004 P Cr. L J 1280

[Lahore]

Before Tassaduq Hussain Jilani and Muhammad Sayeed Akhtar, JJ

FARID AHMED alias BOBI‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.270 of 1999, heard on 4th March, 2004.

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

‑‑‑‑Arts. 3/4‑‑‑Appreciation of evidence‑‑‑Recovery witnesses were subjected to cross‑examination, but they remained consistent on all material particulars i.e. timing of occurrence, place and manner of recovery of narcotics in question‑‑‑Said witnesses of recovery were not attributed any enmity neither during cross‑examination nor in statement of accused under S.342, Cr.P.C.‑‑‑Testimony of said witnesses inspired confidence and was worthy of credit‑‑‑No reason was shown as to why said witnesses should falsely implicate accused in such a serious case‑‑­Prosecution having succeeded in proving its case beyond doubt to sustain conviction, appeal against conviction and sentence awarded to accused by Trial Court, was dismissed.

Erum Sajjad Gul for Appellant.

Muhammad Azam for the State.

Date of hearing: 4th March, 2004.

2004 P Cr. L J 1285

[Lahore]

Before Syed Zahid Hussain, J

JEHANGIR BADAR‑‑‑Petitioner

Versus

FEDERATION OF PAKISTAN‑‑‑Respondent

Writ petition No. 15406 of 2003, decided on 20th November, 2003.

Exit from Pakistan (Control) Ordinance (XLVI of 1981)‑‑‑

‑‑‑‑S. 2‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Deletion of name from the Exit Control List‑‑‑Name of the petitioner had been placed on the Exit Control List under S.2 of Exit from Pakistan (Control) Ordinance; 1981, against whom National Accountability Bureau References were pending‑‑‑Said Ordinance provided for a review/representation to the Federal Government qua any order passed under S.2 thereof and the petitioner had already made such a representation seeking the deletion of his name from the Exit Control List and he should pursue that remedy‑‑‑Petitioner had also applied for permission to go to Saudi Arabia in order to perform "Umra" in the days left of the Holy month of Ramzan and he deserved to be granted permission for that purpose subject to undertaking by him to return‑‑­Government itself had granted permissions to many persons on the Exit Control List and the Court itself by making orders subject to certain conditions‑‑‑Petitioner was accordingly granted one time permission to go to the Holy cities of Mecca and Medina for a period of 15 days subject to his furnishing the required bond ensuring and undertaking his return to the country‑‑‑Constitutional petition and the application of the petitioner were disposed of accordingly.

Muhammad Jahangir Badar v. The State and others PLD 2003 SC 525 ref.

Munir Ahmed Khan for Petitioner.

Sher Zaman Khan, D.A.G. and Zafar Iqbal Chaudhry, Advocate for Respondent.

2004 P Cr. L J 1290

[Lahore]

Before Asif Saeed Khan Khosa, J

BAKHAT WADI ‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous No.58/Q of 2004, decided on 7th April, 2004.

(a) Jurisdiction‑‑‑

‑‑‑Jurisdictional objection‑‑‑Practice and procedure‑‑‑Objection regarding jurisdiction should ordinarily be taken before the concerned forum in the first instance before taking the same before High Court.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 182‑‑‑Criminal Procedure Code (V of 1898), S.561‑A‑‑‑Quashing of proceedings‑‑‑Proceedings pending before the Magistrate under S.182. P.P.C. against the accused were assailed on the ground of being without jurisdiction as the same had not been initiated by the Police Officer before whom the accused had submitted the application containing her allegations‑‑‑Objection regarding jurisdiction ordinarily should have been taken in the first instance before the concerned forum before taking the same before‑ the High Court‑‑‑Accused when confronted with this situation withdrew her petition in order to take it to the Magistrate concerned, who was directed to decide the jurisdictional objection before proceeding further in the matter‑‑‑Petition was disposed of as having been withdrawn with the said observation.

M.A. Zafar for Petitioner.

3004 P Cr. L J 1353

[Lahore]

Before Sh. Abdul Rashid, J

GULZAR HOSSAIN‑‑Petitioner

versus

ADDITIONAL SESSIONS JUDGE, JHANG and 4 others‑‑‑Respondents

Criminal Revision No. [043 of 2003, decided on 8th December, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 265‑A & 265‑F(2)‑‑‑Penal Code (XLV of 1860), Ss.302/109/148/ 149‑‑‑Evidence for prosecution‑‑‑Section 265‑A, Cr.P.C. and S.265‑F(2) read together would mean that in cases instituted upon police report, the Court would ascertain from the Public Prosecutor the names of the persons whom he wished to produce as prosecution witnesses and would summon said persons to give evidence; whereas the word "complainant" figuring in S.265‑F(2), Cr.P.C. meant the complainant in the complaint case‑‑‑Only in the case instituted upon private complaint it was prerogative of the Complainant to name the witnesses whom he would intend to produce, whereas in the case instituted upon police report under S.173, Cr.P.C. Public Prosecutor had the right to name the persons to be produced as prosecution witnesses‑‑‑Present case had been instituted against the accused on a police report‑‑‑Complainant ‑ through his application intended to give up the Investigating Officers as prosecution witnesses whom the Deputy District Attorney considered necessary to e produced in order to bring the entire facts and material on record and not to withhold some part of it, to facilitate the Trial Court to reach‑a just decision‑‑‑Trial Court, therefore, had rightly dismissed the application of the complainant‑‑‑Revision petition was dismissed in limine accordingly.

Sardar Khurram Lafif Khan Khosa for Petitioner.

2004 P Cr. L J 1365

[Lahore]

Before Sh. Abdur Rashid and M. Bilal Khan, JJ

MUHAMMAD AFZAL‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 181 and Murder Reference No.381 of 1999, heard on 10th March, 2004.

Penal Code (XLV of 1860)‑‑

‑‑‑‑Ss. 302(b) & 337‑F(i)‑‑‑Appreciation of evidence‑‑‑Eye‑witnesses were the natural witnesses of the occurrence who had furnished a convincing and confidence‑inspiring account of the incident ‑‑‑F.I.R. was lodged without any delay by the complainant who was the real brother of the accused‑‑‑Gun was recovered from the custody of accused which had matched with the crime‑empties collected from the spot‑‑‑Ocular testimony was corroborated by medical evidence, recovery of weapon of offence and the motive furnished by the complainant‑‑‑Relationship of eye‑witnesses with the deceased could not make their evidence incredible when their presence at‑ the spot at the time of incident was not open to any doubt‑‑‑Case was of single accused‑‑‑Occurrence had taken place at day time‑‑‑Witnesses were fully acquainted with the accused‑‑‑Defence plea on the face of it appeared to be a cooked up story.‑‑‑No mitigating circumstance was available on record in favour of accused for awarding lesser sentence‑‑‑Convictions and sentences of accused including the sentence‑ of death were affirmed in circumstances.

Syed B.H. Shah for Appellant.

Tanvir Iqbal, Asstt. A.‑G. for the State.

Date of hearing: 10th March, 2004.

2004 P Cr. L J 1403

[Lahore]

Before Sh. Abdur Rashid and M. Bilal Khan, JJ

ARSHAD ALI ---Appellant

Versus

THE STATE---Respondent

Crl. As. Nos.40, 65, Crl. Rev. No.35 and M.R. No.257 of 1999, heard on 15th March, 2004.

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

----S. 302---Appreciation of evidence---Principles---Where the statement of a prosecution witness is in consonance with the probabilities fitting in the circumstances of the case and inspires, confidence in the mind of a reasonable and prudent man then the same, even of the worst enemy of the accused, may be accepted without corroboration and where the said elements are missing then the statement of a pious man may be rejected without second thought.

Haroon alias Harooni v. The State and another 1995 SCMR 1627 ref.

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

----S. 302---Appreciation of evidence---Complainant had tried to improve his case on various material aspects and his statement suffered from material infirmities---Crime-empty was not proved to nave been fired at the place of occurrence and, thus, recovery of the licensed rifle did not corroborate the ocular testimony ---Possibility of the F.I.R. having been recorded after initial investigation could not be ruled out---Motive as set up by the prosecution was not proved---Presence of eye-witnesses at the scene of occurrence was not proved on record who were closely related to the deceased and whose conduct throughout the alleged transaction had been quite doubtful, unnatural and improbable---Accused was acquitted in circumstances.

Haroon alias Harooni v. The State and another 1995 SCMR 1627 and Riaz Masih and Mithoo v. The State 1995 SCMR 1730 ref.

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

----S. 302---Appreciation of evidence---Principles---One single reason would be sufficient to discard the statement of a witness if it creates reasonable doubt in a reasonable mind regarding his presence at the spot.

Riaz Masih and Mithoo v. The State 1995 SCMR 1730 ref.

Malik Rab Nawaz for Appellant.

Sardar Tariq Masood Khan for the Complainant.

Tanvir Iqbal, Asstt. A.-G. for the State.

Date of hearing: 15th March, 2004.

2004 P Cr. L J 1424

[Lahore]

Before Sh. Abdur Rashid and M. Bilal Khan, JJ

JAHANGIR MUHAMMAD KHAN and others---Appellants

Versus

THE STATE---Respondent

Crl. A. No. 26 of 2002, heard on 18th March, 2004.

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

----S. 9(c)---Appreciation of evidence---Sentence, reduction in---Accused had led to the recovery of the narcotics after opening the store room and the boxes lying therein by using the keys which were in their possession---After recovery of the said keys and the narcotics on the pointation of accused the onus had shifted to them under S.29 of the Control of Narcotic Substances Act, 1997, to explain their position qua the recovery---Accused had not denied the recovery of narcotics during the search but their plea was that the same did not belong to them--­Accused could not explain as to how they had possessed the keys which was an extremely incriminating piece of evidence against them---Defence plea taken by accused did not at all appeal to reason---No animosity or ill-will of the raiding party against the accused was pointed out---Prosecution evidence was absolutely consistent and coherent--No serious defect in the investigation was even pointed out except some minor lapses which did not affect the validity of the trial---Conviction of accused was upheld in circumstances---Accused were in death cell for the last more than two years and the present case appeared to be the first case against them---Sentence of death of one accused was reduced to imprisonment for life and of other accused was reduced to ten years' R.I. from whom narcotics were recovered in lesser quantity---Appeal was disposed of accordingly.

M.D. Mosaddar Hoque and another v. The State PLD 1958 SC (Pak.) 131 and Noor Ahmad v. The State PLD 1964 SC 120 distinguished.

Sardar Muhammad Ishaque Khan for Appellants.

Tanveer Iqbal Asstt. A.-G. for the State.

Mirza Viqas Rauf, Special Prosecutor for A.N.F.

Date of hearing: 18th March, 2004.

2004 P Cr. L J 1441

[Lahore]

Before Bashir A. Mujahid, J

MUHAMMAD FAYYAZ---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No.2053/B of 2004, decided on 9th April, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/337-A(i)(ii), F(iv)/148/149---Bail, refusal of---Accused was nominated in promptly recorded F.I.R. with specific role of causing injuries with hatchet to three prosecution witnesses which had been fully corroborated by medical evidence---Accused had already been declared more than 18 years of age when occurrence took place and his petition for trial under Juvenile Justice System Ordinance Contradictions pointed out by accused in operational notes and Medico Legal Reports, required deeper appreciation of evidence which was not possible at bail stage---Injured prosecution witnesses, had supported prosecution story for involvement of accused---Delay in conclusion of trial was being caused by accused ---Extraordinary relief of grant of bail, could not be granted to accused, in circumstances.

Umar Mahmood Kasuri for Petitioner.

Abdur Rehman Masud for the State with Gulzan Ahmad, A.S.-I.

M. Akram Qureshi for the Complainant.

2004 P Cr. L.J 1451

[Lahore]

Before Bashir A. Mujahid, J

Mst. RABIA BIBI---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No.2554/B of 2004, decided on 26th April, 2004.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 561-A---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(2)---Constitution of Pakistan (1973), Art. 14---Bail application converted into quashment petition---F. I. R. revealed that complainant and two other persons at midnight peeped through the window of the "Baithak" of co-accused and saw in the light of electric bulb the accused and her co-accused busy in committing Zina­-bil-Raza with each other---Contents of the F.I.R. were in violation of the fundamental rights as guaranteed under Art. 14 of the Constitution which provided protection of privacy and inviolability of a person and intrusion in anyone's house in order to find out commission of an act/crime which was in violations of Injunctions of Islam---Conduct of the complainant was violative of Art. 14(1) of the Constitution and if the F.I.R. remained in the field proceedings in pursuance thereof would amount to sheer wastage of time and abuse of the process of the Court---F. I. R. was quashed by High Court in circumstances in exercise of its inherent jurisdiction.

Riaz v. Station House Officer PLD 1998 Lah. 35; Muhammad Bilal v. Superintendent of Police PLD 1999 Lah. 297; Ghulam Sakina v. State 1991 PCr.LJ 568; Translation of Surah An-Nur Versus 27 and 28 by Abdullah Yousif Ali, Surah Al-Hujrat and Abdul Qayum v. The State 1991 PSC 820 ref.

Miss Nosheen Taskeen for Petitioner.

Najeeb Faisal Chaudhary, Addl. A.-G. and Rana Javed Anwar Khan for the State.

Fazal Ali complainant in person with Muhammad Jamil S.-I.

2004 P Cr. L J 1489

[Lahore]

Before Bashir A. Mujahid, J

MUHAMMAD RAFI---Petitioner

Versus

S.P. and others---Respondents

W .P. No. 14186 of 2003, decided on 14th April, 2004.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Allegation of high-handedness of police---Petition for registration of criminal case against police officials---Report was called on application against high-handedness of Police, which was submitted by S.H.O. of Police Station concerned who denied the allegations in. his Para-wise comments and reply--­Subsequently report was summoned from Capital City Police Officer which was received and according to said report an inquiry was conducted and in the inquiry police officials were found guilty of misusing their official powers and bringing a female of petitioner's side to C.I.A. without any lawful justification; it was further stated in the report that S.P. C.I.A. had been directed to proceed against said police officials under Punjab Removal From Service (Special Powers Ordinance, 2000 for the misconduct---Validity---Mere departmental action against police officials under Punjab Removal From Service (Special Powers) Ordinance, 2000 was not sufficient in view of high­-handedness of the police officials---Capital City Police Officer was directed to get a criminal case registered against said ,police officials under relevant provisions of law as per allegations levelled by petitioner in his application and S.S.P. Investigation was to investigate case under his personal supervision.

Awan Muhammad Hanif Khan for Petitioner.

Najeeb Faisal Chaudhry, Addl. A.-G.

Rana Muhammad Lateef, Inspector Legal.

Muhammad Iqbal S.I. with record

2004 P Cr. L J 1545

[Lahore]

Before Sardar Muhammad Aslam, J

MUKHTAR ALI QURESHI---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION WESTRIDGE. RAWALPINDI and another---Respondents

Writ Petition No.2184 of 2003, decided on 9th April, 2004.

Constitution of Pakistan (1973)---

----Arts. 12 & 199---Penal Code (XLV of 1860), S.489-F [As inserted vide Criminal Law (Amendment) Ordinance (LXXXV of 2002)]--­Constitutional petition---Quashing of F.I.R.---Cheques issued by accused were allegedly dishonoured on 3-10-2001 whereas S.489-F, P.P.C. was inserted on 25-10-2002 whereby offence was made punishable--­On date of issuance of cheque by accused, offence under S.489-F, P P.C. being not on the Statute Book, accused could not be punished in view of provisions of Art. 12 of the Constitution according to which, no law would authorize punishment of a person for an act not punishable at the time of its commission and restriction had been imposed on Legislature by Art. 12 that it could not punish by retrospective Legislation for an act which was not offence at the time it was done--­Continuation of prosecution in such case would be mere abuse of the process of law ---F.I.R. registered against accused under S.489-F, P.P.C. was quashed, in circumstances---Present order, however, would have no bearing on civil proceedings pending between the parties which were to be adjudicated on merits without being influenced by observations made herein.

Afaf Rahim v. Nisar Ahmed and 2 others 2004 PCr.LJ 263 ref.

M. Ikhlaque Awan for Petitioner.

Raja Muhammad Tariq for the Complainant.

Syed Sajjad Hussain, A.A.-G.

2004 P Cr. L J 1561

[Lahore]

Before Khawaja Muhammad Sharif and Ch. Iftikhar Hussain, JJ

ALI IMRAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.2147 of 2002, heard on 22nd December, 2003.

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

----S. 7(a)--Appreciation of evidence---Benefit of doubt---Accused was neither named in the F.I.R., nor his features were furnished therein--­None of the prosecution witnesses had claimed before the trial Court to have identified the accused in the identification parade without being shown to him in the police station---Identification of accused, thus, was highly doubtful---No fire-arm having been recovered from the accused, recovery of crime-empties from the spot was of no avail to prosecution--­Benefit of doubt was granted to accused in circumstances and he was acquitted accordingly.

1985 SCMR 721 and PLD 1995 SC 1 ref.

Mazhar Ali Akbar Naqvi for Appellant.

Fawwad Malik, A.A.-G. for the State.

Date of hearing: 22nd December, 2003.

2004 P Cr. L J 1575

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD AKBAR---Appellant

Versus

THE STATE---Respondent

Crl-Appeal No. 1453 of 2002 and Crl. Revision No.946 of 2002, heard on 11th December, 2003.

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

----Ss. 302(b) & 302(c)---Appreciation of evidence--Accused had allegedly caused one injury each on the head of the deceased with iron pipe and Danda which was not fully supported by medical evidence--­Accused had specifically taken the plea of right of self-defence--­Complainant party had received seven injuries while accused party had sustained eight injuries during the occurrence---One accused himself had received three injuries which had been suppressed by the prosecution--­Accused, no doubt, had acted in self-defence, but they had exceeded the same---Conviction of accused under S.302(b), P.P.C. was consequently converted to S.302(c), P.P.C. and their sentence of imprisonment for life was reduced to seven years' R.I. each in circumstances---Since no compensation could be awarded to the legal heirs of the deceased in cases of right of self-defence, order regarding the same was set aside.

Meraj Begum v. Ijaz Anwar and others PLD 1982 SC 294 ref.

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

----S. 544-A---Compensation to the heirs of the person killed, etc.---Plea of self-defence---No compensation to the heirs of the victim can be awarded in cases of right of self-defence.

Meraj Begum v. Ijaz Anwar and others PLD 1982 SC 294 ref.

Chaudhry Sardar Ali-I for Appellant.

Ch. Muhammad Nazir for the State.

Ch. Muhammad Younis Gujjar for the Complainant.

Date of hearing: 11th December. 2003.

2004 P Cr. L J 1586

[Lahore]

Before Tassaduq Hussain Jilani and Muhammad Sayeed Akhtar, JJ

Dr. Agha IJAZ ALI PATHAN ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1749 of 2000, decided on 17th May, 2004.

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

----S. 9---Corruption and corrupt practices--Mere retention of Government property/funds would not constitute an offence, unless it is accompanied by a criminal intent.

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

---S. 10---Appreciation of evidence---Criminal misappropriation-Sentence, reduction in---Unauthorized withdrawal of the amount, unauthorized investments of the same and retention of the amount for the indicated period, had all been proved on record against the accused--­Return of the amount at a belated stage by the accused after initiation of inquiry against him and in fact after his arrest, were circumstances betraying the criminal intent and would not absolve him of the criminal liability in circumstances of the case---Retention of the Government funds and failure to produce the public money even for a short period would amount to criminal misappropriation---Conviction of accused was upheld accordingly---However, the sentence of imprisonment and fine had to be proportionate to the gravity of the offence and to the gain made by the accused or the loss suffered by the Government---Accused was a Medical Doctor and he had joined civil .service as an Assistant Commissioner through competitive examination---Accused had .got married a year before his arrest---No loss admittedly had accrued to the Government- --Conviction itself would be quite a punishment for a person of accused's background---Sentence of accused was substantially ed in circumstances.

Nadir Shah v. The State 1980 SCMR 402; Rex v. Krishan AIR 1940 Mad 329; Ashfaq Ahmad v. The State PLD 1968 Lah. 1124 and Jahan-ud-Din v. The State 1971 SCMR 71 ref.

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

----S. 9---Corruption and corrupt practices--Criminal misappropriation-­Retention of Government funds and failure to produce the public money even for a short period would amount to criminal misappropriation.

Jahan-ud-Din v. The State 1971 SCMR 71 ref.

(d) Criminal trial--­----

--------Sentence---Principles---Classical principles in respect of sentence can be summed up in four categories, namely retribution, deterrence. prevention and rehabilitation---Sentence has to be proportionate to the gravity of the offence.

Kh. Haris Ahmad for Appellant.

Muhammad Akram Qureshi for NAB.

Date of hearing: 27th April, 2004.

2004 P Cr. L J 1610

[Lahore]

Before Khawaja Muhammad Sharif, J

THE STATE---Petitioner

Versus

MUHAMMAD JAWWAD GHANI---Respondent

Crl. Misc. No.7125/C/B of 2003 (Suo motu) and Crl. Misc. No.2190/M of 2003, decided on 22nd December, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.418/420/468/471---Bail, cancellation of---Father of the complainant, now deceased, had allegedly sold out 67 Acres of land to accused through the sale agreement in dispute---Report of the Handwriting Expert revealed that the said sale agreement did not bear the thumb-impressions of the complainant's father---Land in dispute had already been given on lease by complainant's father to another person and it was not understandable that only within five days of that transaction he would agree to sell the same land to the accused---Such types of incidents being on the peak were required to be curbed with iron hand---Bail granted to accused by Sessions Court was cancelled accordingly.

Ch. Abdul Ghaffar.

2004 P Cr. L J 1622

[Lahore]

Before Muhammad Khalid Alvi and M.A. Shahid Siddiqui, JJ

GHULAM SARWAR---Petitioner

Versus

THE STATE and another---Respondents

W. P. No. 149 of 2004, decided on 19th April, 2004.

Criminal Procedure Code (V of 1898)---

----Ss. 35 & 561-A---Penal Code (XLV of 1860), Ss.302/324/148/149--­Constitution of Pakistan (1973), Art.199---Constitutional petition--­Awarding of sentence in case of conviction of several offences at one trial---Trial Court convicted accused under 5.302, P.P.C. and awarded death sentence with payment of compensation---Trial Court also convicted accused under S.324, P.P.C. and sentenced him to seven years R.I.---High Court on appeal observed that case was of family honour and taking lenient view converted death sentence to life imprisonment and accused was also extended benefit of S.382-B, Cr.P.C.---Accused had prayed that sentences awarded to him be directed to run concurrently as Bench hearing his appeal against judgment of Trial Court though had converted his death sentence into imprisonment for life, but had omitted to make any observation with nature of sentences, whether same would run consecutively or concurrently as required under S.35, Cr.P.C.--­Validity---Neither accused could point out at relevant time nor High Court itself attended to that aspect of case which had escaped sight of the Court and same deserved to be attended to---Provisions of S.35, Cr.P.C. required that if Court intended that the ,sentences should run concurrently, a specific order should be passed in that regard, but that had not been done in the present case---Such was a bona fide omission which required to be taken note of to meet ends of justice for which High Court .had inherent power under S.561-A, Cr.P.C.---High Court while exercising said power, directed that sentences awarded to accused under. Ss.302 and 324, P.P.C. would run concurrently.

2002 MLD 1435 ref.

Muhammad Irshad Khan for Petitioner.

Muhammad Jahangir Arshad, A.A.-G. for the State.

2004 P Cr. L J 1630

[Lahore]

Before Ijaz Ahmad Chaudhry, J

IMRAN alias GOGI---Petitioner

Versus

THE STATE---Respondent

Cr. Misc. No.3315/B of 2003, decided on 28th January, 2004.

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---Bail, grant of--­Accused was behind the bars for the last about .one year and seven months and in spite of direction issued to Trial Court for conclusion of trial within six months, trial of case could not be completed due to non ­availability of Presiding Officer---Accused could not be kept in jail for indefinite period as a punishment, when no progress was made in trial of case without any fault of accused --Accused was admitted to bail, in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Abdul Hameed Khokhar for the State.

Date of hearing; 28th January, 2004.

2004 P Cr. L J 1638

[Lahore]

Before M.A. Shahid Siddiqui, J

NASIR JALIL---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No.3375/B of 2003, decided on 11th March, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/109/34---Bail, refusal of---Accused though was empty-handed at the spot and had not caused any injury to deceased, but High Court while dealing with earlier bail application of accused had observed that there existed reasonable grounds to believe that accused had activily participated in occurrence---Motive had also been ascribed to accused---On merit no exception could be taken to such observation---Trial of case had commenced and case was fixed for evidence---Criminal petition was stated to have been filed before Supreme Court which had not yet been set down in motion---Considering from the date of arrest of accused, it could not be said that inordinate delay had occurred in commencement of trial---Grant of bail on ground of delay was not available to accused, in circumstance --Bail application of accused was dismissed.

1994 PCr.LJ 12 and PLD 2003 Kar. 393 ref.

Mian Nazar Hussain Bhatti assisted by Muhammad Tariq Usman Joyia for Petitioner.

Sheikh Muhammad Junaid Riaz for the State assisted by Mian Arshad Latif for the Complainant.

Date of hearing; 11th March, 2004.

2004 P Cr. L J 1644

[Lahore]

Before Mian Muhammad Akram Baitu, J

SADAQAT HUSSAIN ---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No. 176/B of 2004, decided on 10th February, 2004.

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---Accused though was named in F. I. R. and allegations of abduction and commission of Zina were levelled against him, but alleged abductee had already filed a suit for jactitation of marriage against person who claimed himself to be her husband and that case was pending for adjudication---Alleged abductee in her statement recorded in the Court of Sessions Judge had categorically deposed that she was wife of accused and that fact had also been mentioned in the order of Sessions Judge---Accused was behind the bars for the last about five months, but trial against him had not commenced---Speedy trial of accused was his recognized right and in case of delay in the trial, accused was justified for asking relief of his post-arrest bail---Sufficient reasons were to believe that case of accused needed further inquiry into his guilt which fell under subsection (2) of S.497, Cr.P.C.---Further detention of accused in judicial lock-up would not serve any useful purpose---Accused; in circumstances was granted bail.

Rana Muhammad Asif Saeed Khan for Petitioner.

Muhammad Sarwar Awan for the State.

Date of hearing: 10th February, 2004.

2004 P Cr. L J 1649

[Lahore]

Before Asif Saeed Khan Khosa, J

AMEER ALI ---Petitioner

Versus

THE STATE---Respondent

Criminal Misc. No. 1236/B of 2004 decided on 9th March, 2004.

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

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of--­Further inquiry---Occurrence which had taken place during night time remained unwitnessed---No culprit had been nominated in F.I.R.---No direct evidence was available in the case positively incriminating accused in alleged offence-and prosecution was mainly relying upon a confession allegedly made by accused before police and recovery of a motorcycle from his custody during investigation of case---Confession made by accused during his custody with the police was inadmissible in evidence---Motorcycle allegedly recovered from possession of accused during investigation did not belong to deceased--Worth and evidentiary value of such a recovery, would be gone into by Trial Court at the time of trial and same would call for further probe ---Co-accused had already been admitted to post-arrest bail and case of said co ­accused was not dissimilar to or distinguishable from case against accused so far as merits of case were concerned---No reason' was shown as to why accused could not be treated in the matter of bail in the same manner as said co-accused---Accused was admitted to bail, in circumstances.

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

----Art. 38---Criminal Procedure Code (V of 1898), S.164---Confession made during custody with police---Admissibility of---Confession made by an accused during his custody with Police, was inadmissible in evidence.

Aftab Ahmad Bajwa for Petitioner.

Badar Munir Malik for the State.

2004 P Cr. L J 1654

[Lahore]

Before Bashir A Mujahid, J

MUHAMMAD SALEEM---Petitioner

Versus

THE STATE---Respondent

Cr. Misc. No. 1687/B of 2003, decided on 8th April. 2003.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss 381-A & 406---Pre-arrest bail, grant of---Accused had joined investigation and stolen vehicle had already been recovered- --Accused had placed on record copy of application moved by him against complainant prior to the registration of the case---Registration of criminal case against accused, prima facie, was outcome of ulterior motive---Accused had no criminal history ---Ad­ interim pre-arrest bail already granted to accused was confirmed, in circumstances.

Zafar Iqbal Chohan for Petitioner.

Shahzad Hassan for the State.

Date of hearing: 8th April, 2003.

2004 P Cr. L J 1659

[Lahore]

Before M. Naeemullah Khan Sherwani, J

ALLAH WASAYA---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No. 1133/B of 2004 decided on 26th February, 2004.

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

----S. 497(2)---Penal Code (XLV of 1860), S.392---Bail, grant of--­Further inquiry---Names of accused persons did not figure in F.I.R.--­Prosecution without any reason had failed to hold test identification parade to fix up identity of accused---Holding of test identification parade would become all the more essential in cases where names of accused were not provided in F.I.R.---Holding of test identification parade could not be dispensed with simply for the reason that accused committing robbery had subsequently been found in possession of robbed goods--­Whether the provisions of S.103, Cr.P.C. were fully complied with by Investigating Officer in its letter and spirit, was to be seen at trial--­Allegations against accused fell within the ambit of further inquiry--­Accused was admitted to bail, in circumstances.

2002 SCMR 1304 ref.

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

----Art. 22---Identification parade, holding of---Holding of test identification parade would become all the more essential in cases where names of accused were not provided in the F.I.R. ---Holding of such identification parade was a check against false implication and it was a good piece of evidence against the real culprits---If witnesses were fair a test identification parade, that would go a tong way to prove that story put forth by them was true---Holding of test identification parade could not be dispensed with simply for the reason that accused committing robbery had subsequently been found in possession of robbed goods.

N.A. Butt and Waheed Anwar for Petitioner.

Muntazir Mehdi for the State.

2004 P Cr. L J 1670

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Rustam Ali Malik, JJ

ZAKIR ALI---Petitioner

Versus

THE STATE---Respondent

Cr. Misc. No.266/B of 2003, decided on 28th January, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(b) & 6/9---Bail, grant of---Accused had no criminal history and was not involved in any criminal case of like nature---Accused did not have notoriety as drug pusher either---Being first offender and also for the reason that quantity of narcotics recovered from his possession, would make out a case under S. 9(b) of Control of Narcotic Substances Act, 1997 against accused, he was admitted to bail, in circumstances.

Zafar Iqbal Chohan for Petitioner.

Liaqat Ali Sial for the State.

Date of hearing: 28th January, 2003.

2004 P Cr. L J 1682

[Lahore]

Before Bashir A. Mujahid and Abdul Shakoor Paracha, JJ

SAIFULLAH---Appellant

Versus

THE STATE---Respondent

Crl. Appeal No. 1092 of 2003, decided on 17th February, 2004.

Penal Code (XLV of 1860)---

----S. 193---Appreciation of evidence---Accused was declared hostile at very initial stage when he had not even completed his examination-in ­chief---Accused, in reply to show-cause notice had clarified that it was the first time that he had appeared as witness before any Court of law and he was confused and could not reply the question correctly and he had not committed any perjury intentionally---Accused, in circumstances had not intentionally made any concession in favour of accused or given false evidence ---Mens rea which was an essential ingredient of every criminal offence, was lacking in the case---Case against accused having not been proved beyond any shadow of doubt, he was acquitted of, the charge against him giving him benefit of doubt.

1993 PCr.LJ 547 ref.

Saiful Malook for Appellant.

S.D. Qureshi for the State.

Date of hearing: 17th February, 2004.

2004 P Cr. L J 1692

[Lahore]

Before Ali Nawaz Chowhan, J

Mst. SABEELA---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No.2071/B of 2004, decided on 8th April, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/440/448/452/109/148/149---Bail, grant of---Accused being a female had a suckling baby with her in jail---No allegation was made against her for causing any injury to deceased---Even in F.I.R. complainant party admitted fight between parties, but had suppressed the true facts leading to said fight--­Usually women would not commit aggression when male members were available---Some of the members of accused's side were injured and accused suffered a fire-arm injury and according to the doctor pellets were found at her forehead and her medical certificate was referred to in that respect---Accused was admitted to bail, in circumstances.

Nasim Mai alias Akbari v. The State 2003 YLR 3029; Mst. Surayya Bibi v. The State 2004 MLD 199; Mst. Zahida Bibi and others v. The State 2002 PCr.LJ 1035; Maqbool Hussain v. The State KLR 1991 Cr.C. 233; Mahmood Ahmed v. The State KLR 1994 Cr.C 338 ref.

Nasir Ahmed Qureshi for Petitioner.

Altaf Hussain Qureshi for the Complainant.

Muhammad Ilyas Jhammat for the State.

Date of hearing: 8th April, 2004.

2004 P Cr. L J 1697

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD IMRAN and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.2049 and 2119 of 2002, heard on 17th June, 2004.

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

----S. 302(b)---Appreciation of evidence---Complainant was real brother of the deceased---Occurrence had taken place in broad-daylight in a village place surrounded by houses ---F.I. R. was lodged without any delay---No previous background of enmity existed between the accused and the complainant---Complainant had fully implicated both the accused for having caused two dagger blow each on the person of the deceased---Medical evidence, positive reports of the Chemical Examiner and the Serologist and the evidence of recovery had corroborated the ocular testimony---Motive for the occurrence stood proved---Convictions and sentences of accused were upheld in circumstances.

Allah Bakhsh v. Shammi and others PLD 1980 SC 225 ref.

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

----S. 302(b)---Appreciation of evidence---Conviction even in a murder case can be based on the testimony of a single witness if he is found reliable by the Court---Emphasis is only on the quality of evidence and not on its quantity.

Allah Bakhsh v. Shammi and others PLD 1980 SC 225 ref.

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

----S. 302(b)---Sentence---Normal sentence for an offence of murder is death which is to be awarded as a matter of course except where the Court finds souse mitigating circumstance which may warrant imposition of lesser sentence.

Ch. Muhammad Aslam Sindhu for Appellants.

Ch. Nazir Ahmad for the State.

Date of hearing: 17th June, 2004.

2004 P Cr. L J 1706

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD SHAFIQ --- Appellant

Versus

THE STATE---Respondent

Appeal No. 1688 of 2002, heard on 16th June, 2004.

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

----S. 302(b)---Appreciation of evidence---Accused and the deceased were first cousins---Accused according to F.I.R itself was not armed with any weapon at the time of occurrence--Fire-arm was being carried by the complainant party---Despite three eye-witnesses having been named to the F.I.R., only father of the complainant was examined at the trial--­Defence version seemed to be more plausible and nearer to the truth which was even found to be correct by the police officials who had declared the accused as innocent during investigation---Incident being a chance encounter between the accused and' the complainant party there was no premeditation on the part of the accused---Accused was given the benefit of doubt in circumstances and he was acquitted accordingly.

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

---S. 302(b)---Appreciation of evidence---Conviction can be ordered or maintained on the solitary statement of a witness if it is corroborated by other evidence coming from an unimpeachable source.

Ch. Muhammad Ibrahim for Appellant.

Muhammad Hanif Saleemi for the State.

Date of hearing: 16th June, 2004.

2004 P Cr. L J 1725

[Lahore]

Before Farrukh Lateef, J

MUHAMMAD AMJAD---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION SARGOHDHA ROAD, FAISALABAD and another---Respondents

W. P. No. 9110 of 2004, heard on 7th July, 2004.

Constitution of Pakistan (1973)---

----Art. 199---Penal Code (XLV of 1860), Ss.380/411/457--­Constitutional petition---Quashing of F.I.R.---F.I.R. in question was lodged against accused regarding an occurrence of theft which had taken place more than a year ago without any plausible explanation for the delay in lodging the same---Even date of occurrence was not mentioned .in the F.I.R. and articles mentioned in F.I.R., like perfumes, shampoos, lotions, make-up item etc. were all manufactured branded products, which were available in the open market---Item of each category being identical, was neither distinguishable nor identifiable from other piece, it could not be proved that items recovered from accused were the same which were stolen from shop of the complainant---Identification made by complainant after more than one year of alleged theft regarding manufactured branded counter sale items, was meaningless inasmuch as it could not be established that articles in question were in fact the same which were allegedly stolen from the complainant's shop---Similar was the case with cash---Complainant had not mentioned numbers of currency notes which were stolen---Question of recovery of stolen money also would not arise, in circumstances ---Rapat in question was the basis of F.I.R. which had already been held as false and fabricated and circumstances in which F.I.R. was lodged on the basis of said Rapat, had clearly reflected mala fides on the part of local police ---F.I.R, prima facie, was bogus inasmuch as from contents thereof no offence appeared to be made out against accused.

Muhammad Aslam Zar for Petitioner.

Akhtar Ali, A; A.-G. for Respondent No. 1.

Ghulam Mustafa A.S.-I. Police Station Sargodha Road, Faisalabad with Record.

Azeem Sarwar for Respondent No.2.

Date of hearing: 7th July, 2004.

2004 P Cr. L J 1728

[Lahore]

Before Mian Muhammad Akram Baitu, J

GHULAM MUSTAFA---Appellant

Versus

THE STATE---Respondent

Crl. Appeal No. 152 of 1992, decided on 25th October, 2003.

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

----S. 302(b)---Appreciation of evidence---Motive for commission of crime was that accused who had a bird character used to force and persuade deceased to have friendly relations with him to commit sodomy with him---Deceased having refused to do so, accused due to that grudge had committed murder of deceased---Accused had strong motive against deceased to commit his murder---Contention of accused that procession had failed to establish allegation of motive against accused, was devoid force---Complainant who was father of deceased and other prosecution witness who also was nearest relative of complainant had given ocular account of occurrence which was consistent, cogent and natural---Despite lengthy cross-examination of said witnesses nothing could be brought on record which could have militated against their credibility or veracity of version put forth by them---Mere relationship of said eye-witnesses with deceased, in the absence of any animus on their part against accused, could not be made the basis to brush aside their testimony, which otherwise was convincing and natural---Presence of said eye-witnesses near the venue of occurrence at relevant time, was not just by chance, but was natural as same was the common route---Even a chance and interested witness, could render truthful version and his testimony could be believed in circumstances of a particular case---Accused had not been able to suggest or prove any kind of hostility of such witnesses towards him which could be said to have promoted them to implicate him falsely in the case of heinous nature---Ocular evidence found full corroboration from Medical evidence and it could not be said that Medical evidence was in conflict with ocular evidence---Recovery of Chhuri had also corroborated testimony of eye-witnesses---Conviction and sentence passed by Trial Court against accused, did not call for interference and same was maintained.

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

----S. 302(b)---Appreciation of evidence---Relationship of eye-witnesses with deceased---Mere relationship of eye-witnesses with deceased, in absence of any animus on their part against accused, could not be made the basis to brush aside their testimony which otherwise was convincing and natural.

PLD 1971 SC 751 and 1969 SCMR 64 ref.

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

----S. 302(b)---Appreciation of evidence---Chance and, interested witness---Even a chance and interested witness could render truthful version and his testimony could be believed in circumstances of each case.

PLD 1971 Lah. 410 ref.

Sardar Muhammad Latif Khosa for Appellant.

Malik Muhammad Salim for the Complainant.

Nemo for the State.

Date of hearing: 25th September, 2003.

2004 P Cr. L J 1745

[Lahore]

Before Bashir A. Mujahid, J

ABDUL REHMAN alias PILLU---Petitioner

Versus

THE STATE---Respondent

Cr. Misc. No.3678/B of 2003, decided on 7th July, 2003.

Criminal Procedure Code (V of 1898)---

---S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4---Bail, grant of---Accused had no previous criminal history and offence alleged against him did not fall under prohibitory clause of S.497, Cr.P.C.---Challan of the case had already been submitted, but no material progress was in sight---No useful purpose could be served by keeping accused behind the bars for an indefinite period---Accused was admitted to bail, in circumstances.

Zafar Iqbal Chohan for Petitioner.

Ch. Muhammad Ayub for the State.

Date of hearing: 7th July, 2003.

2004 P Cr. L J 1751

[Lahore]

Before Khawaja Muhammad Sharif, J

QAISAR RAFIQUE---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. 3493/B and W.P. No.6292/Q of 2004, decided on 27th May, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of proceedings---Application---Bail, refusal of--­Record had shown that petitioner belonged to "Qabza Group" and alleged agreement to sell placed on record by petitioner, on the face of it, was a fake document---Poor lady had been deprived of her bungalow and she had undergone mental torture and she was running from Court to Court in order to get justice---Such type of persons were not entitled to any leniency---What to talk of bail before arrest, his case was not even a bail after arrest.

Sultan Mehmood Dar for Petitioner.

Qasim Raza Bukhari for the Complainant.

Muhammad Hanif Khatana, Addl. A.-G. for the State with Siddiq S.-I.

2004 P Cr. L J 1755

[Lahore]

Before Maulvi Anwarul Haq, J

JOHN DENEYS VANRENEN TAYLOR---Petitioner

Versus

THE STATE and another---Respondents

W. P. No. 245 of 2004, decided on 12th February, 2004.

Foreigners Act (XXXI of 1946)---

----S. 14---Pakistan Citizenship Act (II of 1951), S.3---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of F.I.R.--­Case against accused was registered under S.14 of Foreigner Act, 1946 as Passport issued to him by U.K. Government, did not contain a visa entry---Contention of accused was that his mother having born, died and buried in Pakistan, he was citizen of Pakistan and that F.I.R. registered against him was without lawful authority and was liable to be quashed--­Accused stated that his previous passport was stolen and a fresh passport was issued to him by U.K. Government through High Commission in Islamabad---Police Official had confirmed that accused had provided birth certificate and also death entry of his mother who died and buried in Pakistan---Constitutional petition filed by accused was disposed of with direction that Investigating Officer would verify certificate provided by accused and in case it was found to be genuine, F.I.R. registered against him would stand quashed and he would be released immediately from the jail.

Sahibzada Anwar Hamid for Petitioner

Syed Sajjad Hussain Shah, A.A.-G. for the State.

2004 P Cr. L J 1760

[Lahore]

Before Bashir A. Mujahid, J

MUHAMMAD BASHIR and others---Petitioners

Versus

THE STATE---Respondent

Crl. Misc. No.3088/B of 2004, decided on 26th May, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/109/148/149---Bail, refusal of ---F.I.R. was lodged without delay---Accused were pominated with specific role---Day light occurrence---Parties knew each other prior to occurrence, no question of mistaken identity arose and also there was no reason for false implication of accused by letting off real culprits as substitution was a rare phenomena in murder cases---Mere non-recovery of weapon of offence was no ground to grant, bail---No sufficient material was available with Investigating Officer to declare accused persons innocent---Conviction against accused could be recorded even on the basis of statements of the eye-witnesses as no previous deep rooted enmity existed for their false involvement---Alleged contradiction in medical evidence and ocular account, required deeper appreciation of evidence which was not possible at bail stage---Trial in the case had already been commenced---Bail application of accused having no force, stood dismissed.

Salabat v. State 1975 PCr.LJ 451. Muhammad Ilyas v. State 1992 SCMR 1857; Mukhtar v. Mohsin Ali Shah and another 1987 SCMR 1721; Rauf and another v. State and another 1975 PCr.LJ 594; Ghulam Rasul v. State and 4 others 1982 SCMR 440; Muhammad Saleem v. State 1989 Criminal 517; Ibrahim v. State 1969 PCr.LJ 111; Muhammad Hussain v. State PLJ 1996 SC 795; Abdul Manan alias Billa v. State PLD 1999 Lah. 74; Muhammad Hayat v. State 1974 PCr.LJ; 450; Syed Abdul Baqi Shah v. State 1997 SCMR 32; Haji Maa Din and another v. State and another 1998 SCMR 1528; Mohsin v. State 1977 PCr.LJ 159; Allah Bakhsh and another v. State 1971 PCr.LJ 1051; Misal Din v. State' PLD 1996 Lah. 192; Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845; Falak Sher and another v. State 1979 SCMR 103; Ch. Abdul Malik v. State PLD 1968 SC 349; Allah Dad and others v. State 1983 PCr.LJ 2394(2); Amir v. State PLD 1972 SC 277; Mahmood Ahmad and another v. State 1988 MLD 2713; Mazhar Hussain Shah v. State 1986 PCr.LJ 2359; Malkoo v. State 2003 PCr.LJ 1760; Nadeem Butt v. State 2001 PCr.LJ 1817; Muhammad Yousaf v. State 2001 PSC Criminal 29; Naqi Hussain Shah v. State NLR 1992 Criminal 166; Muhammad Hanif, and others v. State 2001 Criminal 401; Muhammad Hassan and 2 others v. State 2000-C.Cr.C. 524; Wazir Khan and another v. State 1987 PCr.LJ 532; Sajjad Hussain alias Basarar v. Faqir Muhammad and another 1987 PCr.LJ 1898; Khalid Mehmood and others v. State 2003 CrLJ 481 and Mst. Qudrat Bibi v. Muhammad Iqbal and another 2003 SCMR 68 ref.

Mubashir Latif Ahmad for Petitioners.

Ch. Farooq Haider for the State.

2004 P Cr. L J 1766

[Lahore]

Before Ch. Iftikhar Hussain, J

MUNIR AHMAD and 10 others---Petitioners

Versus

THE STATE---Respondent

Crl. Misc. No.5032/B of 2003, decided on 1st October, 2003.

Criminal Procedure Code (V of 1898)---

---S. 497(2)---Penal Code (XLV of 1860), Ss.324/148/149/337-A(ii)/ 337-F(iii)/337-L(ii)--Bail, grant of---Four accused had been ascribed only' the role of ineffective firing in the commission of the crime---Two persons from accused’s side, had also received seven fire-arm and one sharp-edged weapon injuries on their bodies which had not been mentioned in the F. I. R.---Counter-version on. behalf of accused had been brought on record making the case of two versions and it was yet to be determined at the trial as to which of the versions was correct---Case against accused fell within the ambit of S.497(2), Cr.P.C. calling for further inquiry into their guilt---Accused were admitted to bail in circumstances.

Sh. Naveed Shaharyar for Petitioners.

Muhammad Azam for the State.

Fateh Muhammad, S.-I. with police record.

2004 P Cr. L J 1772

[Lahore]

Before Ch. Iftikhar Hussain, J

SULTAN AHMAD---Petitioner

Versus

MUSHTAQ AHMAD and 3 others---Respondents

Crl. Misc. No. 124/CB of 2003, decided on 27th June, 2003.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/365/324/452/109/148/149---Bail, cancellation of---No role of any kind was specifically attributed to the accused in the F.I.R. in the commission of crime---Question of vicarious liability of accused for the murder of the deceased was to be gone into at the time of trial---Guilt of accused required further inquiry---One reason alone recognized in law was sufficient to furnish base for an order or finding of Court in a judicial matter and many reasons therefore were not required---No case for cancellation of bail was made out---Petition was dismissed in limine accordingly.

(b) Criminal trial---

----Appreciation of evidence---One reason recognized in law alone is sufficient to furnish a base for an order or finding of Court in a judicial matter and for that object many reasons are not required.

Altaf Ibrahim Qureshi for Petitioner.

2004 P Cr. L J 1777

[Lahore]

Before Ch. Iftikhar Hussain, J

SOBA---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No. 1377/B of 2003, decided on 1st July, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)---Bail---Accused had allegedly entered into the house of the complainant after scaling over the wall and committed Zina-bil-Jabr with his wife---Delay of two days in making the F.I.R. had been explained---Medical report revealed that the accused was capable of performing sexual intercourse---Material available on record had, prima facie, connected the accused with the alleged offence, which fell within the prohibitory clause of S.497(1), Cr.P.C.---Trial in the case had commenced---Bail was declined to accused in circumstances.

Khadim Nadeem Malik for Petitioner.

Haji Javed Iqbal for the State.

Kanwar Muhammad Younis for the Complainant.

Muhammad Yaseen, S.-I. with police record.

2004 P Cr. L J 1783

[Lahore]

Before Ch. Iftikhar Hussain, J

AZIZ AHMAD---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No. 1802/B of 2003, decided on 29th July, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11---Penal Code (XLV of 1860), S.511/337-H(ii)/148/149--­Bail---Accused along with his co-accused while variously armed had allegedly attempted to abduct the girl, but they could not succeed in their design due to attraction of the people at the spot---Eye-witnesses in their affidavits filed with the petition had exonerated the accused of the charge---Case against accused being merely of an attempt was covered under S.497(2), Cr.P.C. calling for further inquiry into his guilt--­Accused was behind the bars and a previous non-convict---Accused was admitted to bail in circumstances.

Tanvir Haider Buzdar for Petitioner.

Masood Sabir for the State.

Habib Ahmad, S.-I. with record.

2004 P Cr. L J 1788

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD RAMZAN --- Petitioner

Versus

THE STATE---Respondent

Crl. Misc. 1 of 2003 in Crl. Appeal No.264 of 2002, decided on 28th July, 2003.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S.308(2)---Suspension of sentence---Accused had been sentenced to imprisonment for life under S.308(2), P.P.C. by the Trial Court, whereas sentence of imprisonment provided thereunder was to the extent of 14 years' R.I. as Tazir, which was an error of law---Sentence of accused was suspended in circumstances and he was released on bail accordingly.

Allah Ditta Khan v. The State PLD 2002 SC 845 rel.

Zafar Khan Magsi for Petitioner.

Nemo for the State.

2004 P Cr. L J 1791

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD AKRAM---Petitioner

Versus

THE STATE and another---Respondents

Crl. Misc. No. 128/CB of 2003, decided on 1st July, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.324/34---Bail, cancellation of---Sessions Court had granted bail to accused on the grounds that he had not repeated the fire and the injured witness had sustained injuries on his legs, i.e. non-vital parts of his body, as such the question of application of S.324, P.P.C. to the case needed serious consideration--­View formed by Sessions Court was not incorrect---Even one reason recognised in law was sufficient to grant relief to the accused---No case for cancellation of bail was made out---Petition was dismissed in limine accordingly.

Faiz Zahid Ameeq for Petitioner.

2004 P Cr. L J 1798

[Lahore]

Before Ch. Iftikhar Hussain, J

NAIK MUHAMMAD ---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No. 1306/B of 2003, decided on 15th July, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Juvenile Justice System Ordinance (XXII of 2000), Ss.2(b) & 10(7)(a)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Penal Code (XLV of 1860), S.377---Bail---Accused, according to the finding of the Sessions Court was less than 18 years of age at the time of commission of offence and. was, thus, a child in view of S.2(b) of the Juvenile Justice System Ordinance, 2000---Trial of accused admittedly had not yet commenced and he being behind the bars for the last sixteen months, was entitled to the benefit of S.10(7)(a) of the said Ordinance---Accused was not stated to be a previous convict--­Bail was allowed to accused in circumstances.

Mehr Abdul Majeed for Petitioner.

Sh. Arshad Ali for the State.

Tahir Hussain for the Complainant.

Ahmad Yar Khan, S.-I. with police record.

2004 P Cr. L J 1802

[Lahore]

Before Ch. Iftikhar Hussain, J

GUL MUHAMMAD ---Petitioner

Versus

THE STATE and another---Respondents

Crl. Misc. No.328/M of 2003, decided on 29th July, 2003.

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

----Ss. 382-B & 561-A---Penal Code (XLV of 1860), S.302(b)--­Extension of benefit of S.382-B, Cr.P.C.---Accused had been convicted under S.302(b), P.P.C. and sentenced to imprisonment for life with fine by the Trial Court, but he did not challenge the same before High Court---Accused now had asked for the extension of benefit of S.382-B, Cr.P.C. to him---Question being purely a legal one could be decided just after hearing the petitioner without issuing any notice to the respondent, particularly when it was obligatory upon the Trial Court to have extended the benefit of S.382-B, Cr.P.C. to the accused unless it could be declined for reasons to be recorded---Trial Court had not at all touched or discussed this question---High Court in exercise of its inherent powers was competent to extend the said relief to the accused--­Benefit of S.382-B, Cr.P.C. was extended to the accused accordingly with the direction that the period of his detention as under-trial prisoner would be counted towards his sentence.

Muhammad Ilyas v. The State 1991 PCr.LJ 90; Sabir Ahmad v. The State 1989 ALD 559 and Jiwan Khan v. The State 1998 PCr.LJ 1797 ref.

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

----Ss. 561-A & 382-B---Inherent jurisdiction of High Court---Benefit of S.382-B, Cr.P.C. extension of---High Court is competent to extend the benefit of S.382-B, Cr.P.C. to the accused in exercise of its inherent jurisdiction under S.561-A, Cr.P.C.

Muhammad Ilyas v. The State 1991 PCr.LJ 90; Sabir Ahmad v. The State 1989 ALD 559 and Jiwan Khan v. The State 1998 PCr.LJ 1797 ref.

Ch. Muhammad Jameel for Petitioner.

2004 P Cr. L J 1810

[Lahore]

Before Ch. Iftikhar Hussain, J

RASHEED AHMAD and 2 others---Petitioners

Versus

THE STATE---Respondent

Crl. Misc. 1344/B of 2003, decided on 30th July, 2003.

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

---S. 497---Penal Code (XLV of 1860), Ss.302/324/109/34---Bail--­Police opinion, relevancy of ---Ipsi dixit of police, no doubt, is not binding upon the Court, but the same is a relevant circumstance to be taken into consideration while deciding the question of grant or otherwise of bail.

Dr. Muhammad Aslam v. The State 1993 SCMR 2288, Muhammad Shabbir v. The State 1997 PCr. LJ 1570; Muhammad Rafique v. The State 2003 PCr.LJ 1151 and Maqsood Javed v. The State 2001 PCr.LJ 2065 ref.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/109/34---Bail--­Finding of innocence in favour of accused by the police and existence of a report of discharge from the case registered against them had made their case one of further inquiry into their guilt as contemplated by S.497(2), Cr.P.C.--- Ipsi dixit of police although was not binding upon the Court, yet it was a relevant circumstance to be considered while deciding a bail matter---Accused were admitted to bail in circumstances.

Dr. Muhammad Aslam v. The State 1993 SCMR 2288; Muhammad Shabbir v. The State 1997 PCr.LJ 1570; Muhammad Rafique v. The State 2003 PCr.LJ 1151 and Maqsood Javed v. The State 2001 PCr. LJ 2065 ref.

Muhammad Ameer Bhatti for Petitioners.

Muhammad Sarwar Bhatti, A.A.-G. assisted by Pervez Akhtar Gujjar for the State.

Qazi Khalid Pervaiz for the Complainant.

Asghar Ali, A.S.-I. with police record.

2004 P Cr. L J 1813

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD RAMZAN---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No.4029/B of 2004, decided on 1st July, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Emigration .Ordinance (XVIII of 1979), Ss. 17/22---Bail, grant of---Evidence of prosecution witnesses though had revealed that accused had received disputed amount on different occasions on pretext of sending son of complainant abroad, but statements of said witnesses were absolutely silent with regard to time, date and year when amount in dispute was allegedly .paid to accused by complainant---Nothing was recovered from accused who was behind the bars for the last more than three months and he was no more required for any further investigation---Challan in the case had not been submitted---Accused was admitted to bail, in circumstances.

Rana Tassawar Ali Khan for Petitioner.

Sh. Javed Sarfraz for Respondent.

Date of hearing: 1st July, 2004.

2004 P Cr. L J 1814

[Lahore]

Before Ch. Iftikhar Hussain, J

ALLAH RAKHA and another---Petitioners

Versus

THE STATE and another---Respondents

Crl. Misc. 524/B of 2003, decided on 2nd July, 2003.

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

----Ss. 497 & 561-A---Penal Code (XLV of 1860), Ss.302/34 & 331---Bail---Accused had served out `their entire substantive sentences after earning remission and were now confined and suffering simple imprisonment alone for want of payment of Diyat---Accused were stated to be financially weak and not in a position to pay the amount of Diyat in lump sum---Accused, in circumstances, were directed to be released on bail on their furnishing bail bonds in the, sum equal to the amount of Diyat with one surety in the like amount and with the undertaking to pay the Diyat amount within the prescribed period.

Muhammad Afzal v. The State 1994 PCr.LJ 934 and Muhammad Saeed v. the Superintendent of Central Jail, Faisalabad 2000 PCr.LJ2 ref.

Malik Muhammad Baqir Awan for Petitioners.

Kamran Bin Latif for the State.

Muhammad Mumtaz Sargana, S.-I. Police Station Basti Malook, Multan with police record.

2004 P Cr. L J 1822

[Lahore]

Before Ch. Iftikhar Hussain, J

ABDUL JABBAR---Applicant

Versus

THE STATE---Respondent

Crl. Misc. No.1 of 2003 in Crl. Appeal No.491 of 2002, decided on 15th July, 2003.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S.302(b)---Suspension of sentence---Accused had been ascribed an injury to the deceased--­Contentions raised on behalf of accused required deeper appreciation of evidence which was neither permissible nor desirable at such stage, lest it might prejudice the case of either party at the final hearing of appeal--­Petition for suspension of sentence of accused was dismissed in circumstances.

Molvi Muhammad Soltan Alam for Applicant.

Yousaf Syed for the State.

2004 P Cr. L J 1824

[Lahore]

Before Ch. Iftikhar Hussain, J

ALLAH YAR KHAN---Appellant

Versus

THE STATE and 2 others---Respondents

Crl. Appeal No.397 of 2003, decided on 1st July, 2003.

Penal Code (XLV of 1860)----

----S. 406---Criminal Procedure Code (V of 1898), Ss.417(2-A) & 249-A---Appeal against acquittal---Allegation against the accused was that they had not paid to the complainant his labour charges in the shape of wheat as agreed between them---Complainant had not entrusted any property to the accused which they had misappropriated or converted to their own use---Accused thus, had not committed an offence under S.406. P.P.C. on which they could possibly be convicted---Trial Court, therefore, had rightly exercised its power under S.249-A, Cr.P.C. and acquitted the accused of the charge---Appeal against acquittal of accused was dismissed summarily.

Athar Rehman Khan for Appellant.

2004 P Cr. L J 1833

[Lahore]

Before Ch. Iftikhar Hussain, J

ABDUL REHMAN alias REHMI and another---Petitioners

Versus

THE STATE---Respondent

Crl. Misc. No. 1501/B of 2003, decided on 16th July, 2003.

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

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11---Penal Code (XLV of 1860), S.380---Bail---Accused and the alleged abductee had entered into Nikah with each other prior to the stated incident ---Abductee had admitted in the Court her Nikah with the accused of her free consent stating that nobody had abducted her or stolen away any ornaments and cash from the house, of her father---Lady accused, in her statement recorded under S.164, Cr.P.C. before the Magistrate had refuted the allegation of her abduction as contained in the F.I.R.---Abductee had also previously filed a writ petition seeking protection against illegal harassment being caused to her and her husband---No allegation of Zina was made against the accused---Case against accused called for further inquiry as envisaged by S.497(2), Cr.P.C.---Accused were admitted to bail accordingly.

Ahmad Raza for Petitioners.

Ahmad Nadim Gull for the State.

Abdul Hameed S.-I. with record.

2004 P Cr. L J 1837

[Lahore]

Before Ch. Iftikhar Hussain, J

INAYAT HUSSAIN ---Petitioner

Versus

S.H.O. POLICE STATION UMAR KOT, DISTRICT RAJANPUR and others---Respondents

W.P. No.2792 of 2003, decided on 3rd July, 2003.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Quashing of Sessions Court's order---Petitioner had challenged the order of the Sessions Court whereby the application brought by him under S.491, Cr.P.C. for the recovery of his daughter-in-law had been dismissed with the observation that the same had been filed simply to hamper the proceedings in the criminal case got registered in respect of the abduction of the said girl--­Alleged detenue admittedly was presently living with her father and uncle who had got registered a case against the petitioner's son etc. under S. 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Girl was not shown to be in illegal and improper custody of the said respondents--Petition was dismissed in limine in circumstances.

Sardar Abid Khan Jatoi for Petitioner.

2004 P Cr. L J 1841

[Lahore]

Before Ch. Iftikhar Hussain, J

AKHTAR ALI ---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No.6071/B of 2003, decided on 6th November, 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 ---Abductee according to the police record had eloped with the accused of her own will and thereafter had indulged in Zina with him with her consent and she was stated to have been arrayed as an accused in the case---No evidence except the statement of the alleged abductee was available on the record against the accused---Case of accused, thus, was open to further inquiry into his guilt as contemplated under S.497(2), Cr.P.C.---Accused was stated to be a previous non-convict---Bail was allowed to accused in circumstances.

Ikhtiar Gul and 2 others v. The State 1996 SCMR 1130(2); Muhammad Sajid v. The State 2000 PCr.LJ 1948 and Ghulam Murtaza v. The State 2001 Crl.J 16 ref.

Nazar Abbas Syed for Petitioner.

Muhammad Haris Chaudhry for the State.

Zafar Iqbal, S.-I. with police record.

2004 P Cr. L J 1851

[Lahore]

Before Ch. Iftikhar Hussain, J

SHAHZAD alias MEER ---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No.6174/B of 2003, decided on 5th November, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324/337-A(ii)/337-H(ii)/34---Bail, grant of---Further inquiry---Accused had been ascribed ineffective firing at the scene of occurrence and no injury to the injured was ascribed to him---Motive was also not directly ascribed to the accused---No crime weapon was recovered from accused---Was yet to be seen whether the accused could ultimately be held for alleged offence or not---Case of accused, in circumstances, was covered under subsection (2) of S.497, Cr.P.C. requiring further inquiry into his guilt---Accused, who was behind the bars for the last more than five months, was a previous non-convict ---Challan had been submitted in the Court---Case for enlargement on bail having been made out, accused was admitted to bail.

Kashif Nawaz Bajwa for Petitioner.

Irfan Qadir for the State.

Jafar Mehmood Malik for the Complainant.

Muhammad Aslam A.S.-I. with record.

2004 P Cr. L J 1853

[Lahore]

Before Khawaja Muhammad Sharif, J

NASIR MAHBOOB---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No.3092/B of 2004, decided on 21st May, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Bail before arrest, refusal of---Broad-daylight- occurrence with promptly lodged F.I.R.---Accused was named in F.I.R. with specific role---Without going into deeper appreciation and touching e the merits of case, High Court declined- to confirm interim bail before arrest---Interim bail already granted to accused was withdrawn.

1975 SCMR 151; 1975 SCMR 219; 1986 PCr.LJ 1091; PLD 1990 Lah. 161; PLJ 1997 SC (AJ&K) 349 and PLD 1990 SC 83 ref.

Azam Nazir Tarar for Petitioner.

Ch. Muhammad Hanif Khatana Addl. A.-G.

Nawab Pervaiz Akhtar for the State.

Sardar Khurram Latif Khan Khosa for the Complainant.

Muhammad Nazir S.-I. with record.

2004 P Cr. L J 1855

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD SHAFIQUE and 2 others---Petitioners

Versus

THE STATE---Respondent

Crl. Misc. No.6080/B of 2003, decided on 3rd November, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Bail., grant of--­Further inquiry---Accused were not named in the F. I. R.---Except the statement of two prosecution witnesses under S.161, Cr.P.C. regarding alleged extra-Judicial confession of accused, no other evidence was on record to connect accused with the crime---Said two witnesses in their affidavit had disowned that accused had made any such confession of their guilt before them---Case against accused, in circumstances, had become as one of further inquiry into their guilt covered under subsection (2) of S.497, Cr.P.C.---Accused were admitted to bail, in circumstances.

S.K. Chaudhary for Petitioners.

Maqbool Ahmad Qureshi for the State.

Muhammad Ashraf A.S.-I. with police record.

2004 P Cr. L J 1857

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD BOOTA---Petitioner

Versus

THE STATE---Respondent

CH. Misc. No.2336/B of 2004, decided on 29the June, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/147/149/109---Bail, refusal of---Eye-witnesses including the complainant had fully implicated the accused in the crime---Specific role of having caused a serious injury on the forehead of the deceased by an axe was attributed to accused which was fully supported by the post-mortem report---Police officer holding the accused to be innocent during investigation on the basis of Qasm/Nian had been departmentally proceeded against for conducting a defective and dishonest investigation---Name of accused was, however, mentioned in Column No.2 of the challan and he had been summoned by the Trial Court to face the trial which had commenced---Bail was declined to accused in circumstances.

Imtiaz Ahmad and others v. The State 1986 SCMR 192; Zulfiqar Ali v. The State 1996 MLD 1457 and Muhammad Arif Hussain v. The State 1999 MLD 939 ref.

Ch. M.S. Shad for Petitioner.

Mian Pervaiz Hussain for the Complainant.

Malik Manzoor Ahmad, for the State.

Ghulam Murtaza A.S.-I. with police file.

2004 P Cr. L J 1860

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD MUNIR and another---Petitioners

Versus

THE STATE---Respondent

Crl. Misc. No.6028/B of 2003, decided on 5th November, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-A(i)(ii)(iii)/337-F(i)/337-L (ii)/148/149---Bail, giant of---No specific injury either to the complainant or to his son was attributed to accused---Was not clear as to who had caused the injury on the nose of complainant resulting into the fracture of the bone---Was yet to be seen whether offence under 5.337-A(iii), P.P.C. could be attributed to the accused or not, while the rest of the offences with which accused were charged did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Four co-accused had been extended bail on the ground that they were found innocent during the investigation while role assigned to all accused persons in the F.I.R. was almost one and the same---Case of accused, on that count was not distinguishable from co-accused who had been admitted to bail---Accused who were behind the bars for the last more than two months, were stated to be previous non-convicts---Nothing was on record to show that accused in fact were desperate persons-- -Accused were admitted to bail, in circumstances.

Ch. Abdul Wadood and Mirza Aamer Baig for Petitioners.

S.D. Qureshi for the State.

Sh. Najam-ul-Hassan for the Complainant.

M. Mansha, A.S.-I. with police record.

2004 P Cr. L J 1862

[Lahore]

Before Sh. Abdur Rashid, J

MUHAMMAD YOUSAF alias KALAY KHAN---Petitioner

Versus

THE STATE---Respondent

CH. Misc. No.3340/B of 2004, decided on 7th July, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324/34---Bail, grant of--­Accused had no previous enmity or motive to attack the complainant party---Occurrence had proceeded from cutting of jokes to which the complainant's brother took an offence---Accused had only fired one shot hitting the victim on front of his thigh and did not repeat the same--­Injury suffered by the victim fell within the purview of S.337-F(iii), P.P.C. which was primarily punishable with "Daman" and also with imprisonment extending to three years as Tazir---Case of accused regarding award of sentence of Tazir required further inquiry---Accused was in jail for the last more than nine months---Two co-accused to whom specific roles had been assigned had been found innocent in the case which showed that prosecution version as narrated in the F.I.R. was not the whole truth---Accused was admitted to bail in circumstances.

Shaukat Ali for Petitioner.

Syeda Huma Kokab for the State with Jaffar Hussain, A.S.-I

2004 P Cr. L J 1864

[Lahore]

Before Muhammad Muzammal Khan, J

RAFAQAT HUSSAIN SHAH---Petitioner

Versus

A.S.P. (S.D.P.O.) CANTT., RAWALPINDI and 5 others---Respondents

W. P. No. 183 of 2004, decided on 14th June, 2004.

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

----S. 154---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Registration of F. I. R. ---Assertions of the petitioner were supported by unanimous opinion of the Medical Board and further affirmed by the judicial inquiry report. which had made out a cognizable offence attracting the provisions of S.154, Cr.P.C.---Provisions of S.154, Cr.P.C. being mandatory had made it obligatory for the concerned police official to register a criminal case leaving no room for escape to discharge his statutory obligations on the lame excuses--­Statutory obligations which were to be discharged by the respondent police official his own were being avoided without any just cause or reason in spite of a speaking order passed by the Sessions Court--­Availability of an alternative remedy to the petitioner by way of filing a complaint under S.200, Cr.P.C. in itself did not exclude the jurisdiction of High Court vested in it under Art. 199 of the Constitution being its prerogative to adopt the same or not in order to regulate its Constitutional jurisdiction---High Court could not close its eyes to the glaring exercise of excess of jurisdiction or use of colourful authority by the State functionaries and,, thus, even in the presence of an alternative remedy High Court could assume jurisdiction according to the circumstances of the case---Accused officials had acted beyond the sphere of their authority fixed by law which they were exercising in an unbecoming. manner to the disadvantage of the poor citizens of the country and the case, therefore, was the most appropriate one for invoking the Constitutional jurisdiction---Respondent Police Officer was consequently, directed to comply with the said order of the Sessions Court in letter and spirit by registering a criminal case against the accused police officials---Constitutional petition was accepted accordingly.

Riaz Ahmad and 3 others v. The State PLD 1994 Lah. 485; Abdul Aziz v. S.H.O. Police Station Qutabpur, Multan and 7 others 1997 MLD 1270; Syed Match Company Ltd. through Managing Director v. Authority under Payment of Wages Act and others 2003 SCMR 1493 and Farzand Raza Naqvi and 5 others v. Muhammad Din through Legal Heirs and others 2004 SCMR 400 ref.

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

----Art. 199---Constitutional jurisdiction---Scope---Alternative remedy--­Availability of---Effect---Availability of alternative remedy in itself does not exclude the jurisdiction of High Court vested in it under Art. 199 of the Constitution as this is the prerogative of the High Court to adopt it or not in order to regulate its Constitutional jurisdiction---High Court cannot close its eyes to glaring exercise of excess of jurisdiction or use of colourful authority by the State Functionaries and, thus, even in the presence of an alternative remedy, High Court can assume jurisdiction according to the circumstances of the case.

Syed Match Company Ltd. through Managing Director v. Authority under Payment of Wages Act and others 2003 SCMR 1493 and Farzand Raza Naqvi and 5 others v. Muhammad, Din through Legal Heirs and others 2004 SCMR 400 ref.

Malik Tahir Mehmood for Petitioner.

Malik Waheed Anjam for Respondents Nos.3 to 6.

2004 P Cr. L J 1869

[Lahore]

Before Asif Saeed Khan Khosa, J

GHULAM MUSTAFA---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.400 of 2004, head on 2nd June, 2004.

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

----Ss. 279 & 337-G---Appreciation of evidence---Rash or negligent driving---Accused was not nominated in the F.I.R. as the person who was driving the Truck at the time of the occurrence---Record did not show as to how the accused had been implicated in the case ---Eye­witnesses did not know the accused personally and the person who was driving the Truck at the time of incident had run away from the spot--­No identification parade was held in the case so as to positively incriminate the accused as the person who was actually driving the Truck at the time of occurrence--- Pointing of accusing fingers towards the accused by. the eye-witnesses during the trial held after 4/5 years of the occurrence was hardly sufficient to clinch the matter in that regard all by itself as during this period they had ample opportunities to have a good look at the accused not only during investigation but also before the Trial Court at pre-trial stages---Even otherwise, the essential ingredient of "rash and negligent driving" of both the offences allegedly committed by the accused, had not been independently proved by the prosecution---Simple assertion by some witnesses before the Trial Court that the Truck was being driven carelessly and negligently or that it was being driven at a fast speed, did not by itself suffice to establish rash and negligent driving---No evidence was brought on record even to show that proper care and caution had not been exercised by the driver in driving the said Truck---Accused was acquitted in circumstances.

Faqir Muhammad v. The State 1984 PCr.LJ 676; Muhammad Yaqub Rathoie v. The State 1968 PCr.LJ 1438; Muhammad Bakhsh v. The State 1976 PCr.LJ 405; Mst. Shafiq Begum v. The State and another 1976 PCr.LJ 356; Abdullah v. The State 1968 PCr.LJ 1416; Noor Khan v. The State 1974 PCr.LJ 56; Ali Muhammad v. The State PLD 1973 Kar. 427; Muhammad Saddaq v. The State 1985 PCr.LJ 2794; Muhammad Sadiq v. The State 1984 PCr.LJ 2574; Sher Zaman v. The State 1983 PCr.LJ 610; Muhammad Akhtar v. The State 1980 PCr.LJ 103; Taj Muhammad v. The State 1979 PCR.LJ 985; Rogers v. The State 1977 PCr.LJ 138; Muhammad Afzal v. The State 1975 PCr.LJ 1353; Abdul Ghani v. The State 1975 PCr.LJ 515; Terence Anthony D'Casta v. The State 1969 PCr.LJ 1228; Issa Khan v. The State PLD 1975 Kar. 723; Umara Khan and another v. Member, Board of Revenue, West Pakistan Lahore and another PLD 1965 (W.P.) Pesh. 104 and Ghulam Muhammad v. The Crown PLD 1953 Lah. 260; Mushtaq alias Niku v. The State 1998 PCr.LJ 158 and Muhammad Hussain v. The State KLR 1994 Criminal Cases 226 ref.

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

----Ss. 279 & 337-G---Appreciation of evidence---Rash or negligent driving---Mere assertion by prosecution witnesses that the accused was driving the vehicle rashly or negligently at the relevant time does not suffice by itself to establish the charge in that regard.

Faqir Muhammad v. The State 1984 PCr.LJ 676; Muhammad Yaqub Rathore v. The State 1968 PCr.LJ 1438; Muhammad Bakhsh v. The State 1976 PCr.LJ 405; Mst. Shafiq Begum v. The State and another 1976 PCr.LJ 356; Abdullah v. The State 1968 PCr.LJ 1416; Noor Khan v. The State 1974 PCr.LJ 56 and Ali Muhammad v. The State PLD 1973 Kar. 427 ref.

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

--Ss. 279 & 337-G---Appreciation of evidence---Rash or negligent driving---Mere fast speed of a vehicle does not by itself establish that it was being driven rashly or negligently.

Muhammad Saddaq v. The State 1985 PCr.LJ 2794; Muhammad Sadiq v. The State 1984 PCr.LJ 2574; Sher Zaman v. The State 1983 PCr.LJ 610; Muhammad Akhtar v. The State 1980 PCr.LJ 103; Taj Muhammad v. The State 1979 PCr.LJ 985; Rogers v. The State 1977 PCr.LJ 138; Abdullah v. The State 1968 PCr.LJ 1416; Muhammad Afzal v. The State 1975 PCr.LJ 1353; Abdul Ghani v. The State 1975 PCr.LJ 515; Muhammad Bakhsh v. The State 19.76 PCr.LJ 405; Terence Anthony D'Casta v. The State 1969 PCr.LJ 1228; Issa Khan v. The State PLD 1975 Kar. 723; Umara Khan and another v. Member, Board of Revenue, West Pakistan Lahore and another PLD 1965 (W.P.) Peshawar 104 and Ghulam Muhammad v. The Crown PLD 1953 Lah. 260; Mushtaq alias Niku v. The State 1998 PCr.LJ 158 and Muhammad Hussain v. The State KLR 1994 Criminal Cases 226 ref.

Rana Muhammad Afzal for Petitioner.

Riasat Ali for the State.

Date of hearing: 2nd June, 2004.

2004 P Cr. L J 1875

[Lahore]

Before Rustam Ali Malik, J

MUHAMMAD MUMTAZ---Petitioner

Versus

THE STATE---Respondent

Crl. Miss. No. 1581-B of 2003, decided on 9th April, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.324---Bail, grant of--­Further inquiry---Injury though was allegedly caused by accused with a fire-arm but it was on non-vital part of body of victim and accused had not repeated the shot though victim was at his mercy---Accused was under detention for about six months---Case against accused being of further inquiry, he was entitled to concession of bail---Accused was admitted to bail, in circumstances.

Muhammad Arshad v. The State 1997 Crl.LJ 433 and Muhammad Riaz v. The State 2000 Crl.LJ 681 ref.

Ameer Khan Niazi for Petitioner.

Hafiz Maqsood Ahmad for the State.

Aftab, A.S.-I.

2004 P Cr. L J 1876

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

MUHAMMAD ARSHAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3190/B of 2004, decided on 28th May, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11---Bail, refusal of---According to prosecution case, accused along with his co-accused had abducted alleged abductee---Allegation against accused was that he committed Zina-bil-Jabr with the alleged abductee who Was an unmarried girl---Accused had failed to explain as to why case was registered against him---Charge had already been framed and case was fixed for prosecution evidence---Case was not fit for grant of bail to accused.

Mumtaz Ahmad Mangat for Petitioner.

Muhammad Awais for the State.

Sikandar Hayat, A.S.-I. with record.

2004 P Cr. L J 1878

[Lahore]

Before Asif Saeed Khan Khosa and Ch. Iftikhar Hussain, JJ

SHAHID JAMEEL---Petitioner

Versus

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

Writ Petition No.2630 of 2004, heard on 31st May, 2004.

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

----Ss. 6, 7 & 23---Penal Code (XLV of 1860), Ss.302/395/396/412----Application for transfer of case from Anti-Terrorism Court to the Court of ordinary jurisdiction---Cases registered against applicant/accused pertained to dacoity with murders committed only for the purpose of private gains and regarding retention of stolen property---Offences in question had not peen committed with the design' or the purpose contemplated by provisions of S. 6(1)(b) or (c) of Anti-Terrorism Act, 1997---If the actus reus of an accused was not committed with mens rea specified in S.6(1)(b) or (c) of Anti-Terrorism Act, 1997, then a special Court constituted under the said Act, had no jurisdiction to try such a case---Requisite mens rea was clearly missing in cases registered against accused so as to brand the acts attributed to him and his co-accused asterrorism'---Application filed by accused under S. 23 of Anti-Terrorism Act, 1997 for transfer of cases, was accepted and cases against accused which were triable by a Court of ordinary jurisdiction, were directed to be transferred as prayed for by applicant/accused.

Basharat Ali v. Special Judge, Anti-Terrorism Court-II Gujranwala PLD 2004 Lah. 199 ref.

Muhammad Hanif Chaudhry for Petitioner.

Akhtar Ali Kureshi, Asstt. A.-G. for Respondents Nos. 1 and 3.

Munir Ahmad Bhatti for Respondent No.2.

Date of hearing: 31st May, 2004.

2004 P Cr. L J 1880

[Lahore]

Before Sh. Abdur Rashid and M. Bilal Khan, JJ

PHOOLAN BIBI---Appellant

Versus

ALAU-UD-DIN and 11 others---Respondents

Criminal Appeal No.447 of 2004, decided on 29th June, 2004.

Penal Code (XLV of 1860)---

----Ss. 302/324/506/186/148/149---Criminal Procedure Code (V of 1898), Ss.497, 345 & 417(2-A)---Appeal against acquittal on the basis of compromise---Names of the legal heirs of the deceased were mentioned in the impugned judgment who during the course of hearing of a bail petition settled Diyat amount of Rs.3,00,000 which was paid to them and then they had waived their right of Qisas and got recorded their statements before the Trial Court to the effect that they had effected compromise with the accused, who were consequently enlarged on bail--­Legal heirs of the deceased after .having effected compromise and received the Diyat amount could not be allowed to withdraw from the compromise---Trial Court had rightly acquitted the accused on the statements regarding compromise of the legal heirs of the deceased recorded during bail proceedings---Appeal against acquittal of accused was dismissed in limine accordingly.

Ch. Ali Muhammad for Appellant.

2004 P Cr. L J 1881

[Lahore]

Before Tassaduq Hussain Jilani, J

ABAIDULLAH---Petitioner

Versus

SESSIONS JUDGE, JHANG and 2 others---Respondents

Criminal Revision No.513 of 2004, heard on 1st July, 2004.

Penal Code (XLV of 1860)---

----S. 302---Juvenile Justice System Ordinance (XXII of 2000), S.7--­Determination of age of accused---Medical Board constituted under the orders of the Trial Court with the consent of the parties which consisted of five Doctors including a Radiologist, had unanimously held that the age of the accused was about 21 years to 22 years---Age of accused according to the said medical report was between 19/20 years on the date of occurrence and if a margin of one year was given even then it came to between 18/19 years--Such finding was corroborative of the entries made in the Birth Register of the accused---Impugned order of the Sessions Court was consequently set aside and the accused was declared to be above 18 years of age on the day of occurrence.

2000 PCr.LJ 1985 (Kar.); Muhammad Zakir v. The State and another 2004 SCMR 121; Jamshed v. Agha Suhail and another PLD 1998 Kar. 142; Umar Hayat v. Jahangir and another 2002 SCMR 629 and Hassan Zafar v. The State 2001 PCr. LJ 1939 ref.

Masood Mirza for Petitioner.

Muhammad Jahangir Wahla for Respondent No.2.

Ch. Khurshid Anwar Bhinder, Addl. A.-G.

Date of hearing: 1st July, 2004.

2004 P Cr. L J 1884

[Lahore]

Before Asif Saeed Khan Khosa and Ch. Iftikhar Hussain, JJ

SAEED AKHTAR---Petitioner

Versus

MUHAMMAD ANWAR and another---Respondents

Criminal Revision No.204 of 2003, heard on 29 June, 2004.

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

---S. 302---Criminal Procedure Code (V of 1898), S.345---Partial compromise---Partial compromise is not permissible in a case of "Tazir".

Sh. Muhammad Aslam and another v. Shaukat Ali alias Shauka and others 1997 SCMR 1307; Muhammad Saleem v. The State PLD 2003 SC 512; Muhammad Arshad alias Pappu v. Additional Sessions Judge, Lahore and 3 others PLD 2003 SC 547; Riaz Ahmad v. The State 2003 SCMR 1067; Niaz Ahmad v. The State PLD 2003 SC 635 and Bashir Ahmad v. The State 2004 SCMR 236 ref.

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

----S. 302---Criminal Procedure Code (V of 1898), Ss.345 & 439--­Partial compromise---Validity---Accused had been sentenced to death as Qisas on two counts by the Trial Court---Word "Qisas" had been mentioned by the Trial Court in its judgment simply due to an oversight and inadvertence---High Court, however, had clarified that the sentences of death passed against the accused by the Trial Court on both the counts under S.302, P.P.C. would be deemed to be sentences of Tazir and, thus, any partial compromise, if at all, between the heirs of the deceased and the accused was of no legal consequence.

Sh. Muhammad Aslam and another v. Shaukat Ali alias Shauka and others 1997 SCMR 1307; Muhammad Saleem v. The State PLD 2003 SC 512; Muhammad Arshad alias Pappu v. Additional Sessions Judge, Lahore and 3 others PLD 2003 SC 547; Riaz Ahmad v. The State 2003 SCMR 1067; Niaz Ahmad v. The State PLD 2003 SC 635; Bashir Ahmad v. The State 2004 SCMR 236; Faqir Ullah v. Khalil-uz-Zaman and others 1999 SCMR 2203 and Khalil-uz-Zaman v. Supreme Appellate Court, Lahore and 4 others PLD 1994 SC 885 ref.

Ch. Muhammad Amin Javaid for Petitioner.

Rao Munawar Khan for Respondent No. 1.

Mirza Abdullah Baig for Respondent No.2.

Date of hearing: 29th June, 2004.

2004 P Cr. L J 1888

[Lahore]

Before Muhammad Muzammal Khan, J

FAISAL KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No. 107 of 2004, heard on 9th June, 2004.

Penal Code (XLV of 1860)---

----S. 302/34---Juvenile Justice System Ordinance (XXII of 2000), S.7--­Determination of age of accused---Method---Principles---School Leaving Certificate of accused had tampering in the column of birth regarding which a criminal case had already been registered against him under Ss.420, 468 & 471, P.P.C. and this document did not furnish a lawful basis for declaring him as juvenile---Birth entry of accused recorded in the Register of the Union Council after the date of occurrence was not worth reliance---Medical Board constituted under the orders of the Trial Court had declared the accused of 20 years of age meaning thereby that he was more than 18 years old on the date of occurrence---Examination of teeth of person was one of the modes of determining his age which was acknowledged by Medical Scholars---No defect was pointed out in the ossification test done by the Medical Board---Order of the Trial Court holding the accused being more than 18 years old on the date of incident did not suffer from any error of law in circumstances---Revision petition was dismissed accordingly.

Naseer Ahmad v. State PLD 2000 SC 813 and Muhammad Akram v. Muhammad Haleem alias Hamayun and others 2004 SCMR 218 ref.

Kamran Shahzad for Petitioner.

Khurshid Ahmed Mirza for the State.

Sh. Waqar Ahmed for Respondent No.2.

Date of hearing: 9th June, 2004.

2004 P Cr. L J 1890

[Lahore]

Before Tanvir Bashir Ansari, J

MUHAMMAD GULZAR---Petitioner

Versus

MUHAMMAD HABIB and 5 others---Respondents

Criminal Miscellaneous No.372/M of 2003, decided on 15th June, 2004.

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

----S. 3---Contempt of Court---Wilful breach of a valid undertaking given to a Court amounts to contempt of Court under S.3 of the Contempt of Court Act, 1976.

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

----S. 5---Jurisdiction---Exercise of---Jurisdiction contemplated in S.5 of the Contempt of Court Act, 1976, regarding High Court or the Supreme Court is to be exercised either on its own information or as laid before it by any person and it shall be thereafter that the concerned High Court may exercise the jurisdiction in respect of contempt of Courts subordinate to it as it exercises in respect of contempt of itself.

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

----Ss. 3, 4 & 5---Criminal Procedure Code (V of 1898), S. 561-A--­Contempt of Court---Reference to High Court---No information had been directly brought to the notice of High Court in respect of the alleged contempt of the subordinate Court of the concerned Civil Judge--­Petitioner had filed an application under Ss.3, 4 & 5 of the Contempt of Court Act, 1976, before the Trial Court, which in order to satisfy itself whether any contempt had indeed been committed, had proceeded o frame the issues and record the evidence---If the Trial Court after recording such evidence would come to the conclusion that a prima facie case of contempt was established, then the question of making a reference to High Court would arise---Impugned order and proceedings of the Trial Court, thus, did not suffer from any illegality and the petition was dismissed accordingly.

Said Muhammad v. Sultan Ahmed and 7 others 2000 CLC 387 distinguished.

Sardar Abdul Raziq Khan for Petitioner.

Mukhtar Ahmed Gondal for the State.

Ch. Muhammad Yousaf for Respondents Nos.1 to 5.

2004 P Cr. L J 1895

[Lahore]

Before Muhammad Akhtar Shabbir, J

Raja MUHAMMAD YOUNAS---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 104 of 2003, heard on 8th June, 2004.

Penal Code (XLV of 1860)---

----S. 168---Appreciation of evidence---Word "trade" used in S.168, P.P.C. indicated a process of buying and selling, but did not include industry or class of skilled labour---Purchase and sale of goods for a consideration or exchange of goods was an essential ingredient of trade and business---Part time job or employment was not included in the definition of "trade" and had not been made an offence---Accused while, serving in Army Public School being a public servant as Teacher in the Education Department, had not committed an offence punishable under S.168, P.P.C.---Accused was acquitted of the charge accordingly.

Kitabistan 21st Century Practical Dictionary; Halsubury's Laws of England (Edition 2, Volume XXXIII) p.303); Wharton's Law Lexicon and Aiyyar in his Law Lexicon of British India ref.

M. Bashir Kayani for Appellant.

Tanvir Iqbal, A.A.-G. with Ch. Rubani State Counsel for Respondent.

Date of hearing: 8th June, 2004.

2004 P Cr. L J 1906

[Lahore]

Before Nazir Ahmad Siddiqui and Sh. Hakim Ali, JJ

MUHAMMAD ABDULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 121 and Murder Reference No.30 of 1999/BWP, decided on 23rd June, 2004.

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

----S. 302---Appreciation of evidence---Soundness of motive, which otherwise did not appeal to reason had not been proved by prosecution--­Extra-judicial confession of accused -was tried to be proved through statements of two witnesses, which had not fulfilled the requirements of the proof to prove extra-judicial confession---Both said witnesses, ere related to victim and to the complainant and they had shown strange conduct as after having known the murder of deceased they let accused to proceed to any place without asking him to accompany, them to the legal heirs of deceased---Both the said witnesses being related to the deceased as well as to complainant and there being no other corroborative evidence to prove their truth, evidence of said extra­judicial confession, could not be believed in given circumstances--­Incident was an unseen occurrence---Whether "Chhuri" was used while committing alleged murder of deceased, was not proved by prosecution through any cogent evidence, it could not thus be said that alleged recovered Chhuri was the weapon of offence and used in the alleged murder---Not believable that Chhuri had been kept by accused with blood-stained earth in such a safe position and place so as to get it recovered even after one month of the killing of deceased---After giving up main witness, solitary statement of other prosecution witness did not inspire confidence---Prosecution had failed to prove beyond any shadow of doubt that the skeleton was that of slain deceased---Accused was acquitted of charge of murder of deceased extending him benefit of doubt.

Fazal Rahman v. The State and others PLD 2004 SC 250; Muhammad Yousuf v. Muhammad Idrees and others 2004 MLD 910 and Sarfraz Khan v. the State d t 1996 SCMR 188 ref.

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

---Art 37---Extra-judicial confession---Evidentiary value---Extra-judicial confession was the weakest piece of evidence to convict an accused solely on its bases---Such evidence had to be corroborated by cogent, convincing, impartial and independent evidence.

(c) Administration of justice---

---- Was better to acquit ten guilty persons than to convict one innocent man.

Zafar Iqbal Awan for Appellant.

M.A. Farazi for Respondent.

Date of hearing: 23rd June, 2004.

2004 P Cr. L J 1915

[Lahore]

Before Ali Nawaz Chowhan and Rustam Ali Malik, JJ

MUHAMMAD ISMAIL and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.171, 179 of 1999/BWP and Murder Reference No.4 of 2000, heard on 15th June, 2004.

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

----S. 302/34---Appreciation of evidence---Deceased having involved himself amorously with a married woman, was not a man of good character and, therefore, was not "Masoom-ud-Dam"--- Eye-witnesses had no reason for false implication of accused in the case---Inmates of the house who had also been injured at the time of incident appeared to be present on the spot---Belated statements from the witnesses had come when they were no more occupied with the medical care of the injured prosecution witnesses and the deceased---Presence of acid burns on the victims and the occurrence which admittedly had taken place in the house of the deceased had established the involvement of at least two persons in the crime---Prosecution witnesses were related to the accused---Motive for the occurrence was proved---Conviction of both the accused on both the counts, therefore, was maintained---Keeping all the possible situations and probabilities for drawing just conclusions in view and the balance of justice even, sentence of death awarded to each accused on each count was altered to imprisonment for life---Appeal was disposed of accordingly.

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

----S. 367---Judgment---Methodology---Court while writing a judgment has to ponder over all possible situations and probabilities for drawing just conclusions and in doing so it cannot act like resolving a mathematical proposition---Human affairs are complex whether in the shape of good or evil and daily new patterns of human behaviour and new situations emerge---Balance in which the facts, are weighed, thus, has to be kept even.

Azam Nazeer Tarar for Appellants.

Kazim Iqbal Bhango for the State.

Malik Muhammad Aslam for the Complainant.

Dates of hearing: 14th and 15th June, 2004.

2004 P Cr. L J 1932

[Lahore]

Before Tassaduq Hussain Jilani and Muhammad Sayeed Akhtar, JJ

REHMAT SHAH AFRIDI---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 1067 and 297-J of 2001, heard on 3rd June, 2004.

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

----Ss. 9(c) & 15---Appreciation of evidence---Recovery witnesses who had no reason to falsely depose against the accused had corroborated each other---Chemical Examiner's report had confirmed that the narcotics recovered from the accused was "Charas"---Huge quantity of "Charas" weighing 651 Kilograms was recovered from the Truck which was in exclusive possession of the accused who had led to the recovery of the same from a hidden safe behind the wooden plank of the said Truck---Accused in disproof of the presumption under S.29 of the Control of Narcotic Substances Act, 1997, had neither appeared himself nor produced any witness in defence---Conviction of accused was upheld in circumstances---However, since the principal accused was not a previous convict and only "Charas" was recovered in the case, his sentence of death was converted into imprisonment for life.

Nek Muhammad and another v. The State PLD 2003 Pesh. 130; Syed Karim v. Anti-Narcotics Force PLD 2003 Kar. 606 and Nasir Khan and another v. The State 1988 SCMR 1899 ref.

Syed Ehsan Qadir Shah, Syed Hassan Qadir Shah and M. Iqbal Bhatti for Appellants (in Criminal Appeal No. 1067 of 2001).

Mrs. Erum Sajjad Gul and Abdul Malik and Missal Khan for Appellants (in Criminal Appeal No. 297-J of 20001) on State Expense.

Khawaja Sultan Ahmad Special Prosecutor and Chaudhry Muhammad Suleman, Additional Advocate-General, Punjab for the State.

Dates of hearing: 19th, 20th and 26th May, 2nd and 3rd June, 2004.

2004 P Cr. L J 1944

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD SALEEM alias NANNA and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 1364 and Criminal Revision No.802 of 2002, heard on 23rd September, 2003.

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

----Ss. 302(b)/34 & 392/34---Appreciation of evidence---Prosecution case mainly rested upon the testimony of the complainant and son of the deceased, last seen evidence, extra-judicial confession, recoveries and the evidence of the Investigating Officers---Complainant and the son of the deceased were not found to have reached the place of occurrence as claimed by them---Delay of 42 days in the disclosure of the story of the deceased having been last seen in the company of the accused by the witness was not acceptable to reason and seemed to be an afterthought and fabricated one to provide support to the prosecution story--­Evidence in respect of the extra-judicial confession allegedly made by the accused had no value as the same was brought forth after a delay of two months, which even otherwise being a joint one was not admissible in evidence---Recoveries of incriminating articles from the accused being of common pattern were of no consequence---Medical evidence had revealed that the death of the deceased had occurred in circumstances other than those appearing in the prosecution evidence on record--­Accused were given the benefit of doubt and acquitted in circumstances.

Liaqat Ali v. The State 1995 PCr.LJ 905; Mst. Robina v. State 2001 MLD 1587; Mulazim Hussain alias Dr. Kashif alias Dr. Abdali alias Nadeem and 8 others v. The State 2002 PCr.LJ 1015; Sabir v. State 1998 PCr.LJ 1941 Quetta and Haji Muhammad and another v. The State 1979 PCr.LJ Lah. DB 460 ref.

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

---Ss. 302(b)/34 & 392/34---Appreciation of evidence---Extra-judicial confession---Evidence of extra-judicial confession is the weakest type of evidence and not worthy of credit unless supported by an independent evidence coming from an unimpeachable source.

Liaqat Ali v. The State 1995 PCr.LJ 905; Mst. Robina v. State 2001 MLD 1587; Mulazim Hussain alias Dr. Kashif alias Dr. Abdali alias Nadeem and 8 others v. The State 2002 PCr.LJ 1015; Sabir v. State 1998 PCr.LJ 1941 Quetta ref.

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

----Ss. 302(b)/34 & 392/34---Appreciation of evidence---Joint extra­-judicial confession---Extra-judicial confession made jointly by accused carries no value in the eye of law.

Haji Muhammad and another v. The State 1979 PCr.LJ 460 ref.

Rana Shakeel Ahmad Khan for the Appellants (in Criminal Appeal No. 1364 of 2002).

Hameed-ud-Din Bhatti for the State in both the matters.

Sh. Zia Ullah for the Petitioner/Complainant (in Criminal Revision No.802 of 2002).

Date of hearing: 23rd September, 2003.

2004 P Cr. L J 1958

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD FAROOQ---Petitioner

Versus

MUHAMMAD MUBEEN AKHTAR and 7 others---Respondents

Writ Petitions Nos. 5519 and 5529 of 2003, decided on 1st April, 2004.

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

----Ss. 168 & 171---Criminal Procedure Code (V of 1898), S.537--­Seizure of goods---Scope---Goods possessed in contravention of the provisions of Customs Act, 1969 could be seized, of which notice in writing would be given to person concerned-- Seizure of goods by Customs authority without determining its liability to confiscation would be illegal---Provisions of S.171 of Customs Act, 1969 were mandatory and non-compliance thereof would not be curable under S.537, Cr.P.C.---Proceedings under Customs Act, 1969 would not sustain in absence of notice under S.171 thereof.

Collector of Customs v. S.M. Yousuf 1973 SCMR 411; Salooka Steels Ltd. v. Director General, Coast Guards of Pakistan PLD 1981 Quetta 1; Muhammad Saleem v. The State 1988 PCr.LJ 1188 and Mian Iftikhar v. The State 1988 PCr.LJ 1445 rel.

(b) Administration of justice---

---- Provision of law requiring execution of a matter in a specified manner---Effect---Will of Legislature should be carried into effect.

Noorul Hassan v. The State 1989 PCr.LJ631 fol.

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

----Ss.168, 171 & 180---Constitution~of Pakistan (1973), Art.199--­Constitutional petition---Seizure of registered vehicle on basis of report of Registration Authority that its record was not traceable and on basis of certificate of Forensic Science Laboratory obtained in absence of petitioner that its chassis number was tampered with---Validity---Such report and certificate were not sufficient to believe that disputed vehicle had been smuggled or imported without payment of customs duty--­Question of disputed vehicle being smuggled item was yet to be determined by Adjudicating Authority, after which those would be liable to confiscation---Registration of vehicle in petitioner's name had not been denied---Notice under S.171 of Customs Act, 1969 had not been issued to petitioner---Nothing on record was available to prove that petitioner had smuggled disputed vehicle---No proceedings had been initiated against petitioner claiming to be owner of disputed vehicles--­Notice under S.180 of Customs Act, 1969 issued to a person, who was neither owner of vehicle nor same had been seized from his possession, would have no legal consequence or bearing on petitioner---Court on basis of such ex parte certificate could not leave peaceful/innocent citizen at the mercy of Customs Department---Open licence could not be given to Government functionaries to harass and cause mental agony to citizens, who would be afforded full protection by Courts in such a situation---High Court accepted Constitutional petition by declaring such action of authority to be illegal and without lawful authority.

Collector of Customs and another v. S.M. Yusuf 1973 SCMR 411; S: M. Yusuf v. Collector of Customs and others PLD 1968 Kar. 599; Abdur Rauf Khan v. Collector Excise and Land Customs, Peshawar and 3 others 1980 SCMR 114; Collector of Customs Lahore v. Azeem Ahmad 2003 P'I'D 960; Collector of Customs Multan v. Muhammad Tasleem 2002 MLD 296; Muhammad Yaqoob v. Pakistan through Secretary. Ministry of finance' Islamabad and 3 others 2002 PTD 2885; Mst. Kaniz Fatima through legal heirs v. Muhammad Salim 2001 SCMR 1493; Khalid Mahmood v. Collector of Customs, Customs House, Lahore 1999 SCMR 1881: Shah Wali v. Ferozuddin 2000 SCMR 718 and Noorul Hassan v. State 1989 PCr.LJ 631 ref.

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

----Art. 199--Constitution petition---Maintainability---Mala fide and illegal actions of pubic functionaries---Constitutional jurisdiction of High Court could be invoked against such actions causing mental and financial loss to petitioner.

Chairman Central Board of Revenue, Islamabad v. Messrs Pak Saudi Fertilizer Ltd. 2000 P'T'E) 3748; Ghazi Fabrics International Ltd. Gulberg III, Lahore through Chief Executive v. WAPDA PLD 2000 Lah. 349 and Gatron (industries) Limited v. Government of Pakistan and others 1999 SCMR 1072 rel.

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

----Ss. 168 & 171---Seizure of vehicle on basis of report of Forensic Science Laboratory that its chassis number was fake---Validity--­Seizing authority would give notice to owner or person from whose possession vehicle was taken into possession about date on which vehicle would be examined in Laboratory---Forensic Science Laboratory would submit report after examining vehicle in presence of concerned person/party---Ex parte report would not be accepted.

Mian Abdul Ghaffar for Petitioner.

Ch. Saghir Ahmad; Standing Counsel for Respondents.

Date of hearing: 22nd March, 2004.

2004 P Cr: L J 1967

[Lahore]

Before Tassaduq Hussain Jilani and Asif Saeed Khan Khosa, JJ

Mst. AZRA BIBI---Petitioner

Versus

THE STATE through Special Judge, Anti-Terrorism Court, Faisalabad and another---Respondents

Writ Petition No.4795 of 2002, decided on 8th April, 2002.

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

----Ss. 6(1)(b), 2(d), 21-C(4)(7)(c) & 14(5) [as amended by Anti­-Terrorism (Second Amendment) Ordinance, 2002]---Juvenile Justice System Ordinance (XXII of 2000), S.5---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Seven accused armed with fire-arms, described in the F.I.R., overpowered gunmen at a jewellery shop in a busy street, in the broad-daylight, robbed the owner of the shop of valuable jewellery and a cash of Rs.3,50,000 and decamped from the spot--- Contentions of the petitioner was that she was a minor and she had to be tried in terms of the Juvenile Justice System Ordinance, 2000 which stipulated separate trial for a child and that even if the Court constituted under the Anti-Terrorism Act, 1997 had jurisdiction to try the present case it could be tried only by a Court constituted under amended S.14(5) of the Anti-Terrorism Act, 1997 and since the "Court" as contemplated under S.14(5) [as amended] had not been constituted on account of the stay order granted by the High Court, Anti-Terrorism Court already functioning in terms of the un-amended Act could not try the case--­Validity---Story as described in the F.I.R., would prima facie bring the case of the petitioner within the ambit of S.6(1)(b) & 2(d) of the Anti­-Terrorism Act, 1997 and trial of the case by the Special Court already functioning was not exceptional to Warrant interference--Principles.

Munir Ahmad Bhatti for Petitioner.

M. Bilal Khan, Addl. A.-G. and Mrs. Yasmin Sehgal, Asstt. A.-G. for the State with Zafar S.-I. with Record.

2004 P Cr. L.J 1978

[Lahore]

Before Ali Nawaz Chowhan and Rustam Ali Malik, JJ

MUHAMMAD IQBAL and others---Appellants

Versus

THE STATE---Respondent

Cr. As. Nos.301/J, 1237 and Murder Reference No.72/T of 2002, decided on 30th September, 2004.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7---Appreciation of evidence---Maxim: Res Ipsa Loquitur (the thing speaks for itself no proof is required)---Applicability---Principle that benefit of doubt must be given to the accused---Exception---Statements under S.342, Cr.P.C.--­Case of accused persons was one of denial but they gave no alternate story and merely explained that occurrence had taken place due to police negligence---Seven persons were involved in the occurrence, out of them five persons were charged, one remained proclaimed offender while another met his death during investigation---No enmity existed between the injured prosecution witnesses who were police officials and the accused, under-trial persons; the possibility of substitution, which was even otherwise a rare phenomenon, was, therefore, excluded--­Recoveries effected from the accused should not be a matter of surprise in view of peculiar circumstances of the present case involving desperate criminals, whereby, the police was put to difficulty in effecting the recoveries at one go from the same sugarcane field; prosecution story, therefore, appeared natural, truthful and plausible---Throwing chillies on the police constables and firing on them by the under-trial prisoners in the police van had its overall effect of creating a panic without injuring the eyes of the passengers 'and, therefore, the Doctor did not notice any such injuries---Held, people having a special knowledge of any event did owe a burden of offering an explanation and when someone speaks of explanation, that meant a plausible explanation not "a mere denial simplicitor---Of course, such explanation was not meant to shift the burden of proof which always rested with the prosecution and it was only meant to create an impact for giving rise to an inference suggestive of other probabilities and doubts regarding the prosecution story---Burden of explanation, in the present case, however, was discharged through the process of cross-examination and statements made under S.342, Cr.P.C.---Many episodes do speak for themselves and give rise to a presumption, until these were effectively rebutted---Some doubts were inherent in a case, some arise because of presumption and third category of doubt was on:, which was created but the doubts were not created merely through a callous and bald denial as had happened in the present case---Principle that benefit of doubt must be given to the accused was trot applicable, to the case where after considering the entire evidence the Court was convinced beyond all reasonable doubts that the prosecution case was acceptable---Prosecution was supposed to establish the guilt of accused; but the doubt the benefit of which accused was entitled to, must be such as rationally thinking sensible men may fairly and reasonably entertain and it would not bring within its ambit doubts of a vacillating mind and based on idea skepticism---Doubt, therefore, should be a doubt which may be honestly and conscientiously entertainable---Ocular account in the present case, made a plausible story which was believable--­Prosecution having established its case fully, High Court dismissed the appeal, upheld the judgment of the Trial Court and returned the reference in the positive.

Gobald Motor Service Ltd. and another v. R.M.K. Veluswami and others AIR 1962. SC 1: 2 All ER 460: Prabhoo's case AIR 1965 All. 417 and Bharosa and others v. The State AIR 1941 All. 402 ref.

(b) Maxim---

----"Res Ipsa Loquitur" (the thing speaks for itself no proof is required)-­-Applicability.

Gobald Motor Service Ltd. and another v. R.M.K. Veluswami and others AIR 1962 SC 1 and 2 All ER 460 ref.

M. Asghar Rokhari assisted by A. Rehman Iqbal for Appellants.

Malik Fawad A.A.-G., Tahir 6ondal, A.A.-G. and Miss Naureen Saleem for the State.

Dates of hearing: 22nd and 23rd September, 2004.

2004 P Cr. L J 17

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

FEROZ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Nos.1017 and 1036 of 2003, decided on 13th October, 2003.

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

‑‑‑‑S. 497‑‑‑Bail, grant or refusal of‑‑‑Practice and procedure‑‑‑Question of grant/refusal of bail was to be determined judiciously having regard to the facts and circumstances of each case‑‑‑Where the prosecution would satisfy the Court that reasonable grounds existed to believe that accused had committed offence falling in the first category, the Court must refuse bail‑‑‑Where accused would satisfy the Court that reasonable grounds existed to believe that he was not guilty of such offence, then Court must release him on bail‑‑‑For arriving at the conclusion as to whether or not reasonable grounds existed for such belief, the Court would not conduct preliminary inquiry/trial, but would only have tentative assessment i.e. would look at the material collected by police for and against accused and be, prima facie, satisfied that some tangible evidence could be offered which, if left un rebutted could lead to inference of guilt‑‑‑Deeper appreciation of evidence and circumstances appearing in the case, were neither, desirable nor permissible at bail stage‑‑‑Court would not minutely examine the merits of the case on plea of defence at bail stage.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.399/400/401/148/149/170/171‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑‑‑Explosive Substances Act (VI of 1908), S.6‑‑‑Bail, grant of‑‑‑Accused had been apprehended from deserted house during a raid conducted by local police‑‑‑Accused were found wearing police uniform‑‑‑Large quantity of arms and ammunition had been recovered from possession of accused‑‑­In absence of enmity or bitterness between accused and prosecution witnesses, it was difficult to believe that massive arms and ammunition were foisted upon accused‑‑‑All such circumstances were sufficient to prove grounds for believing that accused, prima facie, were connected with offence falling under prohibitory clause of S.497; Cr.P.C.‑‑­Accused did not deserve to be released on bail‑‑‑Bail application of accused was dismissed in circumstances.

Rahat Shah and 3 others v: The State 2002 PCr.LJ 1309; Munsib Khan v. The State 1999 PCr.LJ 1264, Ihsanullah v. The State PLD 1995 Pesh. 106 and Ali Anwar v. The State 2003 PCr.LJ 974 ref.

Tafseel Khan Afridi for Petitioner.

Fayyaz Khan Chamkani for the State.

Date of hearing : 13th October, 2003.

2004 P Cr. L J 22

[Peshawar]

Before Tariq Parvez and Shahzad Akbar Khan, JJ

NAZEEM KHAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.470 of 2003, decided on 25th September, 2003.

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

‑‑‑‑S. 9(c)‑‑‑Appreciation of evidence‑‑‑Both prosecution witnesses were consistent regarding premises from where contraband was recovered and both were consistent that at the time of recovery accused was present at place of recovery of contraband‑‑‑Accused had not denied his arrest and also had not denied the recovery of US Dollars, and Pakistani Currency, but he had only denied the venue of the‑crime ‑‑‑Accused had never challenged his address recorded at the time when charge was framed against him, even the site plan had indicated that house was situated at place which was recorded in the charge‑‑‑No evidence was led that house in question was inhabited by others‑‑‑False implication of accused was not possible as huge quantity of narcotics had been recovered from him‑‑­Possibility in some cases could be that police might be motivated to involve some innocent persons, but such object could be achieved conveniently by planting few grams of heroin, but not quantity like 35 Kgs. of heroin as was in the case., of the accused‑‑‑Prosecution had produced sufficient evidence which remained unshaken in the very lengthy cross‑examination and because accused was arrested on the spot, case against him stood proved‑‑‑Conviction and sentence recorded by Trial Court against accused were maintained and his appeal against conviction was dismissed‑‑‑Sentence awarded to accused being not illegal, in absence of any good reason, same could not be enhanced.

Muhammad Jamil Khan for Appellant.

Tariq Khan Kakar for the State.

Date of hearing: 25th September, 2003.

2004 P Cr. L J 30

[Peshawar]

Before Ejaz Afzal Khan, J

AMIR MOINULLAH KHAN‑‑‑Appellant

Versus

Mst. SABAR JANA and another‑‑‑Respondents

Criminal Appeal No.7 and Murder Reference No.1 of 2003, decided on 9th April, 2003.

Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Presence of sole eye‑witness at the scene of occurrence was highly doubtful as she could not plausibly account for her presence in the vicinity‑‑‑Flour Machine Operator who could be a natural witness of occurrence was abandoned as being unnecessary‑‑‑Non‑production of other witness who was mentioned to have witnessed the occurrence, according to F.I.R., was another Machine Operator, which had cast doubt on prosecution version‑‑‑Motive though had not been seriously disputed by the defence, but it being double‑edged sword, would cut both ways, could equally be a reason for commission of the crime as well as false implication‑‑‑Narration with regard to venue of occurrence as given by sole eyewitness in the Court was drastically different from the one given in the F.I.R.‑‑‑Not safe to maintain conviction of accused much less a death sentence on such‑like evidence‑‑­Where a witness whose presence on the scene of occurrence was quite natural had been abandoned without any reason and instead a witness was examined whose presence was not only unnatural, but highly doubtful, same would certainly give rise to the presumption that had such witness been .produced be would have deposed against the prosecution‑‑‑Charge against accused having not been proved beyond any shadow of doubt, conviction and sentence awarded to him by Trial Court were set aside and accused was released.

Mehboob Ali v. The State 2000 SCMR 152; Walayat v. The State 2002 SCMR 53 and Saeed Akhtar and others v. The State 2000 SCMR 383 ref.

Abdul Latif Khan Baloch for Appellant.

Shaukat Hayat Khan, Dy.A.‑G. for the State.

Nasrullah Khan Gandapur for the Complainant.

Date of hearing: 7th April, 2003.

2004 P Cr. L J 37

[Peshawar]

Before Tariq Parvez and Ijaz‑ul‑Hassan Khan, JJ

KARIM and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.334 of 2002, decided on 17th September, 2003.

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

‑‑---Arts. 3/4‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss.6/7/8‑‑‑Appreciation of evidence‑‑‑Statements of two prosecution witnesses, who were police officials, were full of contradictions, infirmities and discrepancies‑‑‑Courts of law were under no compulsion to accept such contradictory statements blindly and that too in a case involving capital punishment‑‑‑Such statements could not be made basis for conviction of accused‑‑‑Cross‑examination of said prosecution witnesses had revealed that investigation in case harp not been carried properly and fairly‑‑‑Each and every aspect of prosecution case was highly doubtful and the requirements of S.103, Cr.P.C. were flagrantly violated in proof of alleged recovery and despite prior information and availability of independent witnesses same were not associated with recovery proceedings‑‑‑Departure of police from Police Station had not been shown in the Daily Diary‑‑‑Truck containing contraband was apprehended at night and there was no electric light‑‑‑Spot was thickly­ populated area‑‑‑Shops were open and many persons were present there, but they were not asked to associate with recovery proceedings‑‑‑Onus to prove guilt of accused was always on prosecution which was to prove that it was the accused who had perpetrated the offence and prosecution was to independently discharge that onus irrespective of the plea taken by accused‑‑‑Mere fact that police witnesses had no enmity or grudge or motive to falsely implicate accused persons, by itself, was not a strong circumstance to hold that whatever had been alleged by prosecution should be implicitly relied upon without asking for supporting evidence‑‑­Accused were not found in direct conscious possession of heroin in question and had no concern with it‑‑‑Extending benefit of doubt, conviction and sentence awarded to accused by Trial Court, were set aside, in circumstances.

Mst. Yasmeen v. The State 2003 YLR 2675 ref.

Javed A. Khan for Appellants.

Akhtar Naveed, D.A.‑G. for the State.

Date of hearing: 17th September, 2003.

2004 P Cr. L J 56

[Peshawar]

Before Talaat Qayum Qureshi, J

IRSHAD‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Bail Petition No.725 of 2003, decided on 28th August, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Control of Narcotic Substances Act (XXV of 1997), S.9‑‑­Bail, grant of‑One thousand grams of opium was recovered from the possession of accused‑‑‑Recovery was witnessed by two police officials, who were as good witnesses as any other persons‑‑‑No ill‑will or enmity was shown between accused and marginal witnesses of recovery memo. who fully supported the .case of prosecution‑‑‑Forensic Science Laboratory. Report was in the positive‑‑‑Case of accused; though fell within cl.(b) of S.9 of Control of Narcotic Substances Act, 1997 and maximum punishment provided therefor was seven years, but keeping in view the present milieu and the threat, menace and mischief caused by narcotics smugglers to the society at large and particularly to the youth of the country, accused could not be released on bail‑‑‑Bail application of accused was dismissed, in circumstances.

Muhammad Ashraf Islam for Petitioner.

Ahmad Jan, A.A.‑G. for the State.

Date of hearing: 28th August, 2003.

2004 P Cr. L J 68

[Peshawar]

Before Malik Hamid Saeed and Talaat Qayum Qureshi, JJ

JAN ALAM‑‑‑--Appellant

Versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No.63 and Criminal Revision No.31 of 2001, decided on 22nd May, 2003.

(a) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence ‑‑‑Time of occurrence in the case was doubtful‑‑ ‑Neither any crime‑empty was recovered from the spot nor any blood‑stained earth was taken into possession from the place of occurrence; venue of incident, therefore, was also doubtful‑‑‑Preparation of site plan on the following day of the occurrence in the absence of explanation therefor had made the prosecution version doubtful‑‑‑Nature of the weapon of offence used in the commission of crime was not disclosed by any prosecution witness‑‑‑Complainant did not appear to be present on the spot at the time of incident and the other eye‑witness had been abandoned by the prosecution for no good reasons‑‑‑Medical reports and the statements of the two doctors examined by the prosecution were contradictory inter se and in conflict with ocular version‑‑‑Specific motive set forth by the prosecution was not proved‑‑‑Prosecution case was replete with doubts and contradictions‑‑‑Trial Court had failed to appreciate the evidence available on record in its true perspective‑‑­Accused was acquitted in circumstances.

Riaz Masih alias Mitto v. The State 1995 SCMR 1730 and Saeedullah v. Shah Nazar and others 2001 PCr.LJ 1740 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Benefit of doubt‑‑‑One reason creating reasonable doubt in the prudent mind alone is sufficient for discarding the prosecution witnesses.

Riaz Masih alias Mitto v. The State 1995 SCMR 1730 and Saeedullah v. Shah Nazar and others 2001 PCr.LJ 1740 ref.

Asadullah Chamkani and Imtiazur Rehman for Appellant.

Ahmad Jan, D.A.‑G. and Mazullah Barkandi for the Complainant.

Date of hearing: 22nd May, 2003.

2004 P Cr. L J 82

[Peshawar]

Before Mian Shakirullah Jan, CJ and Dost Muhammad Khan, J

ZUBAIR ‑‑‑ Appellant

Versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No.22 of 2002, decided on 29th April, 2003.

(a) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Accused had admitted the report made by him to the police‑‑‑Accused had further admitted that he and the deceased only were present in the house when the crime was committed‑‑‑Presence of accused on the spot at the relevant time, thus, stood' established‑‑‑Plea of accused that his deceased wife was killed by the acquitted co‑accused in his presence by firing at her with a pistol, was falsified and completely dislodged by the medical evidence on record‑‑‑Report lodged by the deceased with the police some time before the occurrence that she was fearing threat to her life at the hands of the accused and his brothers and proceedings against them under S.107/151, Cr.P.C. be taken, was not challenged, which was a legal piece of strong circumstantial evidence connecting the accused with the offence‑‑­Accused after his admission that at the time of occurrence he alone was with the deceased in the house, was required to explain by giving evidence that it was not he, but somebody else who had committed the murder, but when asked under S.342, Cr.P.C. he refused to discharge the burden so shifted to him‑‑‑Motive exclusively lay with the accused to commit the crime‑‑‑Accused had tried to kill two birds with one stone by killing the deceased and sending the acquitted co‑accused to gallows‑‑‑Time spent by the accused in between 2 to 4 hours in not shifting the deceased, then injured, to hospital and not reporting the matter promptly to police, was another strong circumstance reflecting upon his conduct‑‑‑Accused had killed a poor and defenceless lady‑‑‑Conviction and sentence of accused were upheld in circumstances.

Shah Wali and another v. The State PLD 1993 SC 32 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑---S. 302(b) ‑Appreciation of evidence‑‑‑Circumstantial evidence‑‑‑‑To record conviction for a murder charge circumstantial evidence must be of a high value and degree which must be interlinked to connect the accused with the commission of the crime and incompatible with his innocence.

Haji Gharib Gul Kaskar for Appellant.

Abdur Rauf Gandapur for the State.

Date of hearing: 29th April, 2003.

2004 P Cr. L J 92

[Peshawar]

Before Shah Jehan Khan and Ijaz‑ul‑Hassan Khan, JJ

ABDUL KHANAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.333 of 2003, decided on 30th July, 2003.

(a) Criminal trial‑‑‑

‑‑‑‑ Benefit of doubt‑‑‑Prosecution primarily was bound to establish guilt against accused, without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the Court to draw conclusion whether prosecution had succeeded in establishing accusation against accused or not‑If the Court had come to the conclusion that the charges against accused had not been proved beyond reasonable doubt, then accused would become entitled for his release on benefit of doubt in the prosecution case.

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

‑‑‑‑S. 13‑‑‑Appreciation of evidence‑‑‑Case of prosecution was that in consequence of raid conducted on Hujra of accused he was apprehended and a .30 bore pistol with 39 rounds of same bore was recovered from his possession and a further search led to recovery of three Kalashnikovs, a .12 bore shot gun with 18 cartridges and .12 bore repeater with four cartridges‑ ‑‑Said weapons were stated to have been concealed under a quilt‑‑‑Licence copies regarding pistol, .12 bore shot gun and .12 bore repeater were produced by the accused to Investigating Officer which were duly taken into possession through a recovery memo. signed by marginal witnesses, but Kalashnikovs were found unlicensed‑‑­Prosecution had produced nothing to indicate that said Kalashnikovs were of accused and that he had concealed the same under a quilt‑‑‑On relevant night there was marriage of son of accused and aerial firing was made in jubilation to celebrate said marriage and a large number of guests were invited who had come out of Hujra of accused after recovery of weapons‑‑‑Connecting link between accused and unlicensed Kalashnikovs, was conspicuously missing in the case‑‑‑Case property was not produced in the Court‑‑‑Court was to verify whether incriminating material had been produced in the Court by prosecution or not‑‑‑Court could not convict any accused merely on statements of witnesses without production of incriminating material‑‑‑Evidence produced by prosecution being highly discrepant, Trial Court had no jurisdiction to place implicit reliance on it and make the same a basis for conviction of accused‑‑‑Prosecution having failed to connect accused with commission 'of crime, judgment of conviction passed by Trial Court against accused was set aside and he was acquitted of the charge brought against him.

Abdul Wadood v. The State 2001 PCr.LJ 173; Islam Gul v. The State 1977 PCr. LJ 225 and Aaqil and another v. The State 1999 PCr. LJ 1754 ref.

Asadullah Khan Chamkani and Mazullah Khan Barkandi for Appellant.

Tariq Javed, D.A.‑G. for the State.

Date of hearing: 23rd July, 2003.

2004 P Cr. L J 110

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

ABDUS SAMAD KHAN‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous Bail Petition No.221 of 2003, decided on 15th September, 2003.

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

‑‑‑‑S. 497‑‑‑Bail, grant of‑‑‑Principles‑‑‑Neither elaborate nor deep assessment of evidence on record nor detailed discussion on various items of evidence which the prosecution intended to produce at the trial, was possible at the bail stage‑‑‑Admittedly whatever was alleged in the F.I.R., could not in all cases be taken as gospel truth‑‑‑If allegations in F.I.R., prima facie were negated by other material patent on record, then that could also be taken into consideration for the purpose of bail‑‑‑Such defects and doubts in the prosecution case, could not be totally ignored merely because accused was directly charged in the F.I.R.‑‑‑Where prosecution would convince the Court that reasonable grounds existed to believe that accused had committed the crime charged with, then the Court must refuse to extend the concession of bail to accused.

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

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/337‑A(ii)/506/34‑‑­Bail, grant of‑‑‑Further inquiry‑‑‑Accused alongwith his brothers had specifically been named in promptly lodged report as one of perpetrators of crime‑‑‑Medical evidence and witnesses of occurrence had fully supported charge against accused‑‑‑Some scope in case though was for further inquiry qua the guilt for accused, but in every criminal case and on that consideration alone, bail could not be claimed by accused as a matter of right‑‑‑Sufficient material being available on file to show that there existed reasonable grounds for believing that accused had been guilty of offence punishable with death, imprisonment for life or imprisonment for ten years, bail was declined to accused.

Arbab Ali v. Khamiso and others 1985 SCMR 195 and Suleman Khan and another v. Buner Khan and another 2003 YLR 181 ref.

Syed Zafar Abbas Zaidi for Petitioner.

Syed Manzoor Ahmad for the State.

M. Tariq Javed, Dy. Attorney‑General assisted by Pir Liaqat Ali Complainant.

Date of hearing: 15th September, 2003.

2004 P Cr. L J 117

[Peshawar]

Before Malik Hamid Saeed, J

Malik NASEER HUSSAIN and 2 others‑‑‑Petitioner

Versus

THE STATE and 2 others‑‑‑Respondents

Criminal Miscellaneous No.97 of 2003, decided on 12th September, 2003.

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

‑‑‑‑Ss. 169, 249‑A, 439‑A & 561‑A‑‑‑Penal Code (XLV of 1860), Ss.182. & 436‑‑‑Quashing of order‑‑‑Discharge of accused‑‑‑Discharge of an' accused under S.169, Cr.P.C. was an administrative act of Magistrate and it would not amount to an acquittal of accused‑‑‑Order of discharge could be recalled by the Magistrate subsequently and accused could also be summoned by Trial Court to face the trial ‑‑‑F.I.R., in the present was registered against the accused under S.436, P.P.C. and during bail before arrest, complainant filed before Trial Court to the effect that Jirga of locality having satisfied him about non‑involvement of accused, he would have no objection if pre‑arrest bail granted to accused be confirmed‑‑‑Bail was confirmed and later accused were also discharged under S.169, Cr.P.C.‑‑‑Accused, after sufficient time, moved application against complainant for registration' of case against them under S.182, P.P.C. as complainant had levelled a false charge against the accused ‑‑‑Validity‑‑­Affidavit given by complainant was only related to his no objection over confirmation of bail before arrest of accused and in view of existence of F.I.R. filed by complainant under S.436, P.P.C., no case under S.182, P.P.C. could be registered against complainant unless Court would come to the conclusion that the case against accused was malicious, false, vexatious or frivolous‑‑‑Simply on the basis of discharge of accused under S.169, Cr.P.C. no cause of action would accrue to the accused to prosecute the complainant under S.182, P.P.C.‑‑Whole proceedings against complainant were premature and not warranted under law‑‑­Orders passed by Judicial Magistrate and Additional Sessions Judge, were quashed and complaint registered against the complainant was declared as not maintainable.

PLD 2001 Lah. 84 ref.

Naveed Maqsood for Petitioners.

Malik Ahmad Jan, D.A.‑G. for the State.

Mehmood Abbas for Respondents Nos. 2 and 3.

Date of hearing: 12th September, 2003.

2004 P Cr. L J 127

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

ZARGHUN SHAH‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous No.518 of 2003, decided on 15th September, 2003.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/337(i)/34‑‑‑Bail, grant of‑‑‑Accused Was directly charged in promptly lodged report for murder of deceased and' attempted murder. of the complainant‑‑‑Medical report and witnesses of occurrence had fully supported the charge against accused‑‑‑Mere filing‑of cross‑case against each other could not considered a good ground for release of accused on bail, unless an element of genuineness was there‑‑‑In cases of counter­ version, rule to be followed was that if one party was granted bail, other party was also entitled to the same relief, but that rule would be applicable only in cases of genuine counter‑version‑‑‑Accused having not succeeded to make out a case for grant of bail, his bail application was dismissed.

Muhammad Hussain v. The State 1993 PCr.LJ 623; 1992 501 and 1995 SCMR 860 ref.

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

‑‑‑‑S. 497‑‑‑Bail, grant of‑‑‑Counter‑version‑‑‑Rule to be followed was that if one party was granted bail, the other party was also entitled to the same relief, but that rule would be applicable in cases of genuine counter ­version.

Mian Fazli Amir Khan for Petitioner.

Manzoor Ahmad for the State.

Date of hearing: 15th September, 2003.

2004 P Cr. L J 143

[Peshawar]

Before Talaat Qayum Qureshi, J

MUHAMMAD TAHIR‑‑‑Petitioner

Versus

TARIQ PERVEZ and 2 others‑‑‑Respondents

Bail Cancellation Application No.617 of 2003, decided on 25th August, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Application for cancellation of bail‑‑‑No one was charged by the complainant in F.I.R., but on the following day statement of complainant under S.161, Cr.P.C. was recorded wherein he charged five persons including two accused for committing murder of his brother and mother‑‑‑Both complainant and his brother in their statements made under S.164, Cr.P.C. on the same day, had stated to have seen the occurrence, whereas in F.I.R. they did not state to have seen the same‑‑‑Case of further inquiry, in circumstances, was made out to examine as to whether complainant as well as his brother were present on the spot at the time of occurrence‑‑‑Whenever reasonable doubt would arise with regard to participation of an accused person in the crime or about the truth/probability of prosecution case and the evidence proposed to be produced in support of the charge, accused should not be deprived of benefit of doubt‑‑‑Accused in such a situation, to be kept on bail than in jail during the trial‑‑‑No allegation was made either in application or in arguments of complainant that accused had misused concession of bail by making some efforts to hamper investigation or to tamper with evidence or that accused had used violation against prosecution witnesses‑‑‑Grounds given by Court below for granting bail to accused, were convincing and cogent and same were neither fanciful, arbitrary or perverse, warranting interference‑‑‑No extraordinary circumstances were shown to exist to compel High Court to cancel bail by competent Court below‑‑‑Application to cancel bail was in circumstances.

Muhammad Amin Khattak Lachi for Petitioner.

Malik Fakhri Azam for Respondents.

Imtiaz Ali, A.A.‑G. for the State.

Date of hearing: 25th August, 2003.

2004 P Cr. L J 227

[Peshawar]

Before Muhammad Qaim Jan Khan, J

QALAB ABBAS MULTANI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.589 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---Offence with which accused was charged, did not fall under barring provision of S.497, Cr.P.C.---Accused through an application had resiled from his affidavit alleging that same was result of duress and coercion---Accused had also given a statement .in the Family Court with regard to the genuineness of Nikah---Case of accused, in circumstances had become one of further inquiry---Accused was admitted to bail, in circumstances.

S. Muhammad Haseeb Khan for Petitioner.

Ghulam Younis Khan Tanoli for the State.

Iftikhar Tanoli for the Complainant.

Date of hearing: 10th February, 2003.

2004 P Cr. L J 266

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

FAISAL MUHAMMAD HASSAN and 2 others---Petitioners

Versus

THE STATE---Respondent

Bail Application No.967 of 2003, decided on 26th September, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.170/171/419/420/468/471--­Bail, grant of---Accused were in jail since their arrest and were no more required for the purpose of investigation---Charges against accused did not fall under the prohibitory clause of S.497, Cr.P.C. and withholding of bail as a measure of advance punishment, would neither promote the cause of justice nor object of law---Element of fraud or dishonesty on the part of accused was yet to be determined during the trial---Investigation of the case was complete and challan of the case was likely to be put into the Court shortly---Conclusion of trial of accused would take some time---Accused were admitted to bail, in circumstances.

Badrey and 3 others v. The State and another 2000 PCr.LJ 1914 and Abdul Qadir v. The State 1987 PCr.LJ 582ref.

Fida Gul for Petitioners.

Miss Naleem Khan for the State.

Date of hearing; 26th September, 2003.

2004 P Cr. L J 280

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

MUHAMMAD IDRIS---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.913 of 2003, decided on 24th October, 2003.

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

----S. 497(2)---Bail, grant of---Principles---Further inquiry---Accused would only be entitled to the discretionary relief of bail, when on the tentative assessment of material brought on record, the Court would reach the conclusion that no reasonable grounds existed to believe 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 such finding, the Court was debarred to hold that the case was of further inquiry entitling accused to bail within the meanings of S.497(2), Cr.P.C.---Deeper appreciation of evidence at bail stage, though was not 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.302/404/34---Bail, grant of--Though no one had been charged in the F.I.R. for the murder of deceased, but complainant in his statement had implicated the accused--­Accused was real uncle of the complainant and apparently no enmity existed between complainant party and accused which could have prompted the complainant to implicate the accused---Accused had yet to stand the test of scrutiny on the basis of evidence which was to be recorded by the Trial Court---Bail application of accused was dismissed in circumstances.

Muhammad Shaheen and others v. Arshad Siddique and 2 others 1997 SCM P 18 29 and Safirullah v. The State and another 2003 PCr. LJ 691 ref.

Khalid Khan and Bashir Ahmad Khan Tangi for Petitioner.

Muhammad Fayaz Khan Chamkani for the State.

Javed A. Khan for the Complainant.

Date of hearing: 24th October, 2003.

2004 P Cr. L J 298

[Peshawar]

Before Talaat Qayum Qureshi, J

MADAD KHAN---Petitioner

versus

THE STATE and another---Respondents

Criminal Bail Application No. 1066 of 2003, heard on 3rd November, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324---Bail, grant of--­Accused was charged in F.I.R. for effective firing and causing injuries on the private /delicate parts of body of the deceased---Prima facie, evidence connected the accused with commission of said offence--­Multiple injuries were found on the body of deceased and medical evidence had lent full support to the prosecution case---Accused remained absconder for sufficient long time and due to said abscondence, accused had lost some of the normal rights granted by the procedural as well as substantive law for bail---Abscondence of accused was unexplained ---Challan of the case had been submitted in the Court and the trial was likely to conclude in the near future---Bail application of accused was dismissed, in circumstances.

Muhammad Akram v. The State PLD 1993 Pesh. 175; Sher Ali alias Sheri v. The State 1998 SCMR 190 and Khial Gul and another v. The State and another 2002 PCr.LJ 1054 ref.

Abdul Latif Afridi for Petitioner.

Shah Nawaz Khan Chamkani for the State.

Asadullah for the Complainant.

Date of hearing; 3rd November, 2003.

2004 P Cr. L J 313

[Peshawar]

Before Talaat Qayum Qureshi and Ijaz-ul-Hassan Khan, JJ

AJMAL KHAN---Appellant

versus

THE STATE--Respondent.

Jail Criminal Appeal No.456 of 2002, decided on 16th October, 2003.

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

----Ss. 302/324---Appreciation of evidence---Matter was reported to the police promptly---Accused had been directly nominated in the report and a specific role of firing had been attributed to him---Witnesses from the spot had fully supported the prosecution case and said witnesses had justified their presence at the spot---Prosecution witnesses without any omission or addition had narrated prosecution version as contained in the F:I.R. which stood corroborated by medical evidence and recovery of crime empties from the spot---Prosecution version was- supported by natural and independent witnesses including daughter of the deceased who bore stamp of injuries on her person- '-Defence, despite lengthy cross-examination had not been able to dislodge the presence of witnesses either in the village on the day of occurrence or near the place of occurrence---Mere fact that said witnesses were closely related to the deceased, by itself was not sufficient to discard their testimony as mere relationship between the witnesses and the deceased was not enough to discard their evidence unless witness had motive to falsely implicate the accused---Medical evidence was in line with the ocular testimony---No such serious enmity existed which could be served as a motivating factor to falsely involve accused in such like offence and why the real culprit should be spared as substitution was a rare phenomenon---Prosecution had brought sufficient evidence on record to connect accused with commission of crime and evidence had been evaluated and assessed in the right direction---Minor contradictions and omission pointed out in testimony of eye-witnesses were insignificant and did not damage the prosecution case---Accused had been rightly found guilty for the crime and judgment passed by Trial Court being unexceptionable warranted no interference of High Court.

Kaura v. The State PLD 1978 BJ 39; Muhammad Muslim v. Mazhar Malik 1999 SCMR 103 and Jafar Shah v. Mian Yahya Shah 1999 SCMR 20 ref.

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

----Ss. 302/324---Appreciation of evidence---Benefit of doubt--­Entitlement---Prosecution primarily was bound to establish guilt against accused without shadow of doubt by producing trustworthy, convincing and coherent evidence enabling the Court to draw conclusion whether or not prosecution had succeeded in establishing accusation against the accused---If Court would come to the conclusion that charges imputed against accused had not been proved beyond reasonable doubt, then accused would become entitled to be acquitted on getting benefit of doubt in prosecution case.

Kamran Arif for Appellant.

Jamshed Khan for the State.

Date of hearing: 16th October, 2003.

2004 P Cr. L J 343

[Peshawar]

Before Qazi Ehsanullah Qureshi, J

BAKHTIAR --- Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous Bail Application No.985 of 2003, decided on 29th September, 2003.

Criminal Procedure Code (V of 1898)---

---S. 497---Penal Code (XLV of 1860), S.489-F---Bail, grant of---Case against accused prima facie was covered by S.489-F, P.P.C. and maximum punishment for it was provided for a term which could extend to five years or with fine---Accused was admitted to bail, in circumstances.

Sohail Akhtar for Petitioner.

Said Manzoor Ahmad for the State.

Date of hearing; 29th September, 2003.

2004 P Cr. L J 377

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

AWAIS and another‑‑‑Appellants

Versus

THE STATE and another‑‑‑Respondents

Criminal Appeals Nos.469, 550 and Criminal Revision No.97 of 2003, decided on 24th October, 2003.

(a) Penal Code (XLV of 1860)‑‑‑

----Ss. 324/337/‑A(i)---Appreciation of evidence---Complainant/victim had fully supported the prosecution version and fully charged her brother and his friend for causing her fire‑arm injuries‑‑‑Complainant was subjected to lengthy and searching cross‑examination, but nothing could be elicited to shatter her testimony‑‑Alleged discrepancies in statement of complainant/victim were inconsequential and not fatal to the case‑‑­Occurrence had taken place in a broad daylight‑ on a working day and in a busy street of the city‑‑‑F.I.R. in the case was lodged without much delay and both accused were specifically named therein‑‑‑Said facts by themselves would rule out the possibility of false implication of accused in the case‑‑‑Large number of people from locality though were stated to have seen the occurrence and no independent and disinterested witness from the locality had been produced at the trial to lend support to prosecution version, but in view of the social conditions prevalent in the society, strangers avoid to poke their nose in the affairs of other people-‑­Non‑collection of blood or recovery of empties from the spot was not fatal to prosecution case as Investigating Officer having visited spot after about fourteen days of occurrence, possibility of blood and empties having vanished or destroyed, could not be excluded‑‑‑Ocular account of incident was not in, conflict with medical evidence‑‑Contention that complainant being not on good terms with her husband, possibility was that her husband had a hand in the affair, was repelled because nothing was on file giving the slightest indication to that effect‑‑‑Strong motive had been set up in the F.I.R. leading accused to commit the crime and said motive had been successfully proved‑‑‑Trial Court in circumstances, had rightly convicted and sentenced accused‑‑‑In absence of any illegality by way of misreading or non‑reading of evidence or jurisdictional error or illegality, finding of Trial Court could not be interfered with.

Yaqoob Shah v. The State PLD 1976 SC 53 and Muhammad Iqbal v. The State PLD 1976 SC 291 ref.

(b) Criminal trial‑‑‑

‑‑‑‑Rule of corroboration‑‑-Rule of corroboration was to be applied by way of abundant caution and mandatory rule to be always and necessarily insisted in each case‑‑‑True test was that if the direct evidence furnished by the witnesses contained exaggerations and was of doubtful veracity, independent corroboration should be insisted‑‑‑Rule of corroboration was also attracted in a case in which the evidence was creditworthy, but not of such a degree as to result in conviction of accused‑‑‑Requirement of corroboration would depend upon the facts and circumstances of each case and on the nature of evidence in the case‑‑‑If the evidence did not suffer from any major or significant contradiction, corroboration was not insisted, but in a case of interested evidence, corroboration either from direct or from circumstantial source was sought and in such case, corroboration by medical evidence, motive and recovery of weapon of offence were enough to maintain the conviction.

Muhammad Afzal and 2 others v. The State 2003 SCMR 1678 ref.

(c) Criminal trial‑‑‑

‑‑‑‑ Conviction on solitary statement of complainant‑‑‑Conviction could be awarded on basis of solitary statement of complainant/victim provided it rang true and inspired confidence.

Mali v. State 1969 SCMR 76; Muhammad Siddique alias Ashraf Alias Achhi and 3 others v. State 1971 SCMR 659; Allah Bakhsh v. Shammi and others PLD 1980 SC 225 and Riaz Hussain v. State 2001 SCMR 177 ref.

Afridi Khan for Appellants.

Miss Musarrat Hilali, A.A.‑G. for the State.

Muhammad Ashraf Khan for the Complainant.

Date of hearing: 13th October, 2003.

2004 P Cr. LJ 468

[Peshawar]

Before Talaat Qayum Qureshi, J YAR MAT KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 138/Q of 2003, heard on 18th November, 2003.

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

S. 561-A-Quashing of Sessions Court's order dismissing the revision petition for non-prosecution---Revision petition filed by the petitioner against the order of the Magistrate had been admitted to regular hearing by the Sessions Court and the petitioner and his counsel had been appearing in Court on each date---Case on the relevant date was fixed for receipt of the record and attendance of the complainant, when it was dismissed for non-prosecution---Sessions Court ought to have adjourned the date and on receipt of the record and after attendance of the complainant, should have decided the revision petition on merits--- Criminal revision after its admission to regular hearing could not be dismissed for non-prosecution---Impugned order was consequently set aside and the criminal revision, petition was restored on the file of the Sessions Court for decision on merits in accordance with law.

Muhammad Hanif v. The State 1991 PCr.LJ 1353 ref.

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

----Ss. 439 & 439-A---Revision petition, dismissal for non-prosecution--- Revision after it is admitted to regular hearing by the Court, cannot be dismissed for non-prosecution.

Muhammad Hanif v. The State 1991 PCr.LJ 1353 ref.

Javed A. Khan for Petitioner.

Jamshed Khan for the State.

Date of hearing: 18th November, 2003

2004 P Cr. L J 490

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

AZIZ KHAN and another‑‑‑Petitioners

versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous No. 1025 of 2003, decided on 7th November, 2003.

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

‑‑‑‑Ss. 497 & 345(1)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12‑‑‑Penal Code (XLV of 1860), 5.377/34‑‑­Bail, grant of‑‑‑Settlement between the parties‑‑‑Complainant, brother of the victim, had stated that a compromise had been effected between the parties and they were no more interested to proceed with the matter‑‑­Offences under S.12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and under 5.377, P.P.C. were not compoundable under S.345(1), Cr.P.C.‑‑‑Fact that the parties had themselves voluntarily forgiven the crime and had entered into an outside Court settlement, could be considered as a ground for releasing the accused on bail in the interest of justice and equity‑‑‑Accused were allowed bail accordingly.

Muhammad Akram v. The State 1995 MLD 1826; Mst. Musarrat Elahi alias Bibi v. The State 1997 PCr.LJ 1193; Ghulam Ali v. The State 1997 SCMR 1411 and Mukhtar Ahmad and 3 others v. The State 1999 PCr.LJ 1107 ref.

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

‑‑‑‑Ss. 497 & 345(1)‑‑‑Penal Code (XLV of 1860), S.377/34‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12‑‑‑Bail in non‑bailable and non‑compoundable offence due to compromise‑‑‑Fact that the parties have themselves voluntarily forgotten and forgiven a certain crime and have entered into an outside Court settlement, may be considered as a ground for release of the accused person on bail in the interest of justice and equity.

Muhammad Akram v. The State 1995 MLD 1826; Mst. Musarrat Elahi alias Bibi v. The State 1997 PCr.LJ 1193; Ghulam Ali v. The State 1997 SCMR 1411 and Mukhtar Ahmad and 3 others v. The State 1999 PCr.LJ 1107 ref.

Shah Nawaz Khan for Petitioner.

Khalid Tanveer for the State.

Complainant in person.

Date of hearing: 7th November, 2003.

2004 P Cr. L J 692

[Peshawar]

Before Mian Shakirullah Jan, C.J. and Ijaz‑ul‑Hassan Khan, J

Mst. ANWAR BIBI‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.307 of 2001, decided on 6th March, 2003.

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

‑‑‑‑Ss. 9(c) & 25‑‑‑Criminal Procedure Code (V of 1898), S.103‑‑­Appreciation of evidence‑‑‑Recovery of heroin ‑‑‑Factum of arrest of accused had not been denied‑‑‑Both prosecution witnesses who were police officials, had made consistent statements on material points and accused had failed to point out any discrepancy in their statements‑‑­Minor discrepancies which had been pointed out were not sufficient to discredit statements of prosecution witnesses which were otherwise consistent and natural‑‑‑No enmity or grudge had been alleged against the prosecution witnesses to falsely implicate accused in the case‑‑­Statements of witnesses were worthy of reliance as no material contradiction had been pointed out to their statements‑‑‑No mala fide had been alleged against complainant or any other witness to falsely implicate accused‑‑‑Such huge quantity of heroin could not be thrust upon lady accused in absence of tangible, cogent and concrete enmity and that had not been proved by the accused‑‑‑Contention that mandatory provisions of S.103, Cr.P.C. had not been complied with as no disinterested and unconnected witness from locality had been associated with proceeding which had rendered recovery highly doubtful, was repelled in view of S.25 of Control of Narcotic Substances Act, 1997‑‑‑One of prosecution witnesses who was marginal witness to the recovery memo,' had fully supported recovery of heroin and no reason was shown to discredit his testimony simply because he was a police witness‑‑‑No presumption existed that police witnesses were liars and their testimony thus, could not be excluded except for valid reason and there seemed to be no justification to exclude their evidence from consideration‑‑‑Prosecution having brought sufficient material on record to connect accused with commission of crime and consequential guilt, their conviction as recorded by Trial Court, was upheld, but sentence of fine was reduced.

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

‑‑‑‑Ss. 9(c) & 25‑‑‑Appreciation of evidence‑‑‑Evidence of police official‑‑‑No presumption existed that police witnesses were liars‑‑­Presumption that a person acted honestly, would apply as much in favour of a police official as of other person and their testimony could not be excluded except for valid reasons when there seemed to be no justification to exclude their evidence from consideration.

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

‑‑‑‑Ss. 9(c) & 36‑‑‑Appreciation of evidence‑‑‑Quantity of recovered substance to be sent for Chemical Examination‑‑‑Contention of the accused was that out of entire lot i.e. 13‑1/2 Kgs. heroin only a negligible quantity had been dispatched to the Chemical Examiner by police and report though was in positive, should be considered to that extent only‑‑‑Contention was repelled in view of S.36 of Control of Narcotic Substances Act, 1997 as sample was always part of the total and it would not require that whole quantity should be sent to examiner for the purpose of test.

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

‑‑‑‑S. 9(c)‑‑‑Appreciation of evidence‑‑‑Combining dual functions of complainant as well as investigator‑‑‑Contention that complainant in combining in himself dual functions of complainant as well as investigator, had prejudiced interest of accused, was repelled because no prejudice appeared to have been caused to accused in the case and investigation on such account could not be depreciated and looked with suspicious eye.

Noor Alam Khan for Appellant.

Hamid Farooq Durrani, D.A.‑G. for the State.

Date of hearing: 6th March, 2003.

2004 P Cr. L J 788

[Peshawar]

Before Malik Hamid Saeed and Talaat Qayum Qureshi, JJ

AHMAD ALI ---Appellant

Versus

ABDUL HANAN and another---Respondents

Jail Criminal Appeal No. 14 of 2003, decided on 11th November, 2003

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

----Ss. 302 & 307---Appreciation of evidence---Correct identification of accused in moonlight in view of the distance between the accused and the eye-witnesses was very difficult, what to say about singling out of a particular accused for the fatal shot out of the three accused standing side by side at the time of firing---Ocular testimony was discrepant and contradictory which had made the prosecution case doubtful at least to the extent of firing the fatal shot by the accused---Delay of eleven hours in reporting the matter to the police in the given circumstances was questionable---Despite the alleged firing of 40/50 shots only one crime ­empty was recovered from the spot which according to the report of Ballistic Expert was not even fired from the rifle attributed to accused--­Motive for the occurrence was not established by the prosecution and the charge against the accused seemed to be the result of mala fide intention of the complainant ---Abscondence of accused per se was not sufficient to establish his guilt in the absence of prosecution evidence of unimpeachable nature---Accused was acquitted in circumstances.

Medical Jurisprudence and Toxicology by Modi, 1963 Edn. p.60; Muzaffar v. The State PLJ 1975 Cr.C. (Lah.) 244; Anara v. The State 1988 MLD 237 and 1968 PCr.LJ 1077 ref.

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

----Ss. 302 & 307---Appreciation of evidence ---Abscondence of accused---Principles---Mere abscondence per se is not sufficient for establishing the guilt of an accused person unless the prosecution is able to establish its case through unimpeachable evidence.

Abdul Fayyaz Khan and Qazi Zakiuddin for Appellant.

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

Muhammad Hussain for the Complainant.

Date of hearing: 6th November, 2003.

2004 P Cr. L J 799

[Peshawar]

Before Mian Shakirullah Jan, CJ. and Shahzad Akbar Khan, J

KHANZADA and another---Petitioners

Versus

ASSISTANT POLITICAL AGENT F.R., KOHAT and 3 others---Respondents

Writ Petition No. 1173 of 2003, decided on 23rd December, 2003.

Frontier Crimes Regulation (III of 1901)-----

----Ss. 9(b) & 8(3)(d)---Constitution of Pakistan (1973), Art.199--­Constitutional petition---Arrest of petitioners in execution of money decree---Validity---Decree for recovery of money passed against the petitioners having attained finality, they had been arrested during execution proceedings on a warrant issued under S.9(b) of the Frontier Crimes Regulation, 1901---Decree passed under S.8, subsection (3) clause (d) of the said Regulation had the same effect as a decree of a Civil Court of ultimate resort and was to be enforced in the same manner as a decree of Civil Court---Petitioners had already been released on Fail by High Court---Decree-holder was neither interested nor he pressed for the arrest of the petitioners, provided they appeared before the Executing Authority in connection with the execution proceedings---Since decree against the petitioners was not denied by them they could not escape from its execution---Executing Authority, therefore, was directed to proceed with the execution proceedings strictly in accordance with law--­Arrest being not the underlying object of execution of the decree, if the Executing Authority felt that the decree could more effectively be executed by proceeding against the property of the judgment debtors in the settled area then it would be more appropriate and akin to the object of execution of decree to send it for its execution to the Court/Authority where their property was situated and to avoid their unnecessary arrest---Constitutional petition was disposed of accordingly.

Syed Khalid Bacha v. Deputy Commissioner, Mardan and 6 others 2002 PCr.LJ 1390 distinguished.

Wali Khan Afridi for Petitioners.

Abdul Latif Afridi and Sardar Shaukat Hayat, D.A.G. for Respondents.

Date of hearing: 9th December, 2003.

2004 P Cr. L J 813

[Peshawar]

Before Ejaz Afzal Khan and Fazlur Rehman Khan, JJ

KAMAL HUSSAIN ---Appellant

versus

THE STATE and another---Respondents

Criminal Appeals Nos.176, 174 of 1999 and Criminal Revision No.Nil, decided on 4th December, 2003.

Penal Code (XL.V of 1860)---

----S. 302(b)-Appreciation of evidence---Presence of eve-witnesses on the spot at the crucial moments being highly doubtful and their testimony having been belied by the medical evidence, the same was neither credible nor reliable---Injured witnesses were withheld by the prosecution whose evidence was essential rather indispensable in view of the inconsistent testimony of the partisan evidence of prosecution witnesses and their non-production had led to adverse inference against the case of prosecution---Bullet recovered from the dead body of the deceased was not sent to Serologist to ascertain whether it was stained with human blood of the same group and it, thus, was not established that it was in fact recovered from the dead body of the deceased---Said bullet was also dispatched to the Ballistic Expert twice with two different seals---Positive report of the Ballistic Expert, therefore, did not improve the prosecution case that the said bullet was fired from the Kalashnikov recovered from the accused---Accused was acquitted in circumstances.

Umar Hayat v. The State PLD 1995 SC 526; Abdul Khaliq v. The State 1996 SC 1553; Muhammad Iqbal v. Abid Hussain alias Mithu and others 1994 SCMR 1928; Qadir Bakhsh v. The State PLD 2002 Quetta 97; Abdul Ghafoor v. The State 2000 SCMR 919; Ghaus Muhammad alias Ghausia and another v. The State 1979 SCMR 579; Ghulamullah and another v. The State 1996 SCMR 1887; Mardan Ali v. Gulilstan and others 1980 SCMR 889; Saindad and others v. The State 1972 SCMR 74 and Saeedullah Khan v. The State 1986 SCMR 1027 ref.

Mirza Abdullah Jan and Mujtaba Ali Hamdani for Appellant.

Muhammad Sardar Khan, Asadullah Khan Chamkani and Ishtiaq Ibrahim for the Complainant.

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

Dates of hearing; 2nd and 4th December, 2003.

2004 P Cr. L J 821

[Peshawar]

Before Talaat Qayum Qureshi, J

AMIR ULLAH --- Petitioner

versus

THE STATE and 2 others---Respondents

Criminal Miscellaneous No.714 of 2003, decided on 25th August, 2003.

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

----S. 97---Self-defence, right of---Scope---Right of self-defence can be used as a shield to ward off an unwanted attack to person or property, but it cannot be used as a vehicle for provoking the attack, meaning thereby that it is to be exercised as a preventive measure and not for launching an attack for retaliatory purpose.

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

----Art. 9---Security of person---Duty of police---Police officials are to act in aid of enforcement of Art.9 of the Constitution which guarantees a fundamental right that no person shall be deprived of life or liberty save in accordance with law---Public functionaries like police, therefore, are to act in aid of enforcement of the said Constitutional provisions rather than to violate the same and to expose themselves to criminal prosecution.

Ch. Muhammad Yaqoob and others v. The State an others 1992 SCMR 1983 ref.

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

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, refusal of--­Accused was charged for effective firing---Contention that the accused at the relevant time was driving the vehicle and he could not make firing had no force, because according to F.I.R. police party after colliding the coach had deboarded from their official pick-up and started firing with which the deceased was hit and died after a few moments---Specific role attributed to accused was supported by the post-mortem report and other circumstantial evidence---Bail was declined to accused in circumstances

Ch. Muhammad Yaqoob and others v. The State and others 1992 SCMR 1983 ref.

Shakeel Ahmad for Petitioner.

Waheedullah Khan for the State.

Asadullah Khan Chamkani for the Complainant.

Date of hearing: 19th August, 2003.

2004 P Cr. L J 834

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

UMAR ALI and another---Petitioners

versus

THE STATE --- Respondent.

Criminal Revision Petition No.40 of 2003, decided on 12th March, 2004.

Criminal Procedure Code (V of 1898)---

----Ss. 514 & 439---Penal Code (XLV of 1860), Ss.302/324/429/148/ 149--Forfeiture of surety bond--Accused for whom petitioners stood sureties having failed to appear before Trial Court, show-cause notice was served on petitioners/sureties---Said sureties in their reply to show­cause notice having expressed their inability to produce accused before the Court, Trial Court keeping in view their financial status, of sureties reduced the surety amount from Rupees three lacs to Rupees one lac and sureties were directed to pay the said surety amount upto the specified date---Validity---Petitioners/sureties were under. legal obligation to discharge their liability under bond furnished by them--­After undertaking liability to pay surety amount, it would not lie in their mouths to say that on account of their financial condition they could not .pay amount of surety bond executed by them and that they stood surety of accused out of benevolence without any monetary gain--­No legal embargo existed against forfeiting entire bail bond---Where an accused had jumped bail entire surety amount could be confiscated--­Surety was liable to produce accused in Court in view of his undertaking---Trial Court having already taken a lenient view by reducing amount of surety bond, no good ground/reason existed to further reduce amount of surety bond---Impugned order of Trial Court being correct, proper and legal, same did not call for interference of High Court in its revisional jurisdiction.

Zeshan Kazmi v.. The State PLD 1997 SC 267 and Muhammad Aslam and another v. The State 2004 SCMR 211ref.

Yousaf Haroon for Petitioners.

Malik Ehsanul Haq for the State.

Date of-hearing; 12th March, 2004.

2004 P Cr. L J 861

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

MUHAMMAD ISHAQUE---Appellant

Versus

SARDAR ALI and another---Respondents

Criminal Appeal No. 15 of 2004, decided on 25th March, 2004

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

----Ss. 410 & 417(2-A)---"Appeal against acquittal" and "appeal against conviction"---Distinction---Standard of assessing evidence in appeal against acquittal was quite different from that laid down for appeal against conviction---Marked difference existed between appraisement of evidence in the appeal against conviction and in appeal against acquittal---Appraisal of evidence in appeal against conviction was done strictly and in appeal against acquittal, same rigid method of appraisement was not to be applied as there was already finding of acquittal given by the Trial Court after proper analysis of record--­Interference in the appeal against acquittal was made only when it appeared that there had been gross misreading of the evidence which amounted to miscarriage of justice---Ordinary scope of appeal against acquittal was considerably narrow and limited.

Muhammad Usman and 2 others v. The State 1992 SCMR 498 and The State v. Muhammad Sharif and others 1995 SCMR 635 ref.

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

----S. 417(2-A)---Penal Code (XLV of 1860), S.379/34---Appeal against acquittal---Evidence in the present case was highly doubtful regarding involvement of accused in commission of crime---Trial Court had advanced valid and cogent reasons for passing a finding of acquittal in favour of accused and no legal justification existed to disturb said finding---Acquittal of accused did not suffer from any illegality so as to call for interference with judgment of Trial Court in that regard---One substantial doubt was enough to acquit the accused---Appeal against acquittal, was dismissed, in circumstances.

Abdul Aziz Khan Dalokhel for Appellant.

2004 P Cr. L J 869

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

PAYOO KHAN and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No.26 of 2004, decided on 25th March, 2004.

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

----S. 497(2)---Bail, grant of---Principles---Accused would only be entitled to the discretionary relief of bail when on the tentative assessment of materials brought before the Court, it reached 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 case was of further inquiry entitling accused to bail within meaning of S.497(2), Cr.P.C.--­Deeper appreciation of evidence at bail stage, no doubt was not the requirement of law, 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(2)---Bail, grant of---Principles---Further inquiry---Provisions of S.497(2), Cr.P.C. had provided that if it appeared to the Court at any stage that no reasonable grounds existed for believing that accused had committed a non-bailable offence, but sufficient grounds existed for further inquiry into his guilt, such accused would be released on bail--­What would constitute as sufficient grounds for further inquiry, would depend upon peculiar facts of each case and no hard and, fast rule could be laid down for that purpose---Every hypothetical question which could be imagined, would trot make it a case of further inquiry simply for the reason that it could be answered by the Trial Court subsequently after evaluation of evidence---Condition laid down in cl.(2) of S.497, Cr.P.C., was to the effect that sufficient grounds existed to exist for further inquiry into the guilt of accused which had nexus with the result of the case and could show or tend to show that accused was not guilty of the offence with which he was charged; for example, if the accused was charged for offence under S.302, P.P.C., but there were grounds for further inquiry which could show that he could not be convicted of charge under S.302, P.P.C. and acquitted or convicted for a lesser offence.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/324/148/149---Bail, grant of---Further inquiry---Accused, no doubt were directly nominated in promptly lodged report for the commission of crime and a definite role of firing had been attributed to them, but in statement of injured prosecution witness recorded under S.161, Cr.P.C., said accused had neither been charged nor, their presence had been shown at the spot at the time of occurrence---Case of accused, in circumstance necessitated further probe---Statement of said injured prosecution witness had also been recorded under S.164, Cr.P.C. wherein too, accused had not been charged---Injured stranger/passerby, had not charged anyone for firing which too had made the case of prosecution doubtful even at bail stage, leaving a lot to be inquired at the trial---Police, during investigation, had also admitted the innocence of accused for not being present at the spot at the time of alleged occurrence and it was evident from investigational proceedings that police/Investigating Agency had no other option in attendant circumstances, but to place the names of accused in Column No.2 of the complete challan---Case for grant of bail having been made out, accused were admitted to bail, in circumstances.

1999 SCMR 127; 1999 MLD 939; 2001 MLD 180; 2002 PCr.LJ 844 and PLD 1998 SC 1 ref.

Gohar Zaman Khan Kundi for Petitioners.

Muhammad Sharif Chaudhry, D.A.-G. for the State

Abdul Latif Khan Baloch for the Complainant.

Date of hearing: 19th March, 2004.

2004 P Cr. L J 878

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

NOOR SULEMAN---Petitioner

Versus

DARAY KHAN and another---Respondents

Criminal Miscellaneous Bail Cancellation Nos.215 and 282 of 2003, decided on 18th March, 2004.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/324/34---Application for cancellation of bail---Trial Court was quite justified to hold that the matter needed a thorough probe---Concession of bail had rightly been extended to accused in case by invoking the concept of further inquiry--­Applicant seeking cancellation of bail had not been able to convince that bail granting order was violative of legal norms and had resulted in miscarriage of justice---No extraordinary circumstance had been pointed out which could constitute an impediment in the way of granting bail to accused---Discrepancy between ocular and medical evidence could only be settled at trial, accused, therefore, could remain on bail---Present case was not a fit case wherein interference should be made under S.497(5), Cr.P.C. which otherwise was discretionary and not mandatory--­Application for cancellation of bail, was dismissed, in circumstances.

1986 SCMR 1027; 1996 SCMR 555; 1999 PCr.LJ 403; Shahnaz Bibi v. Gul Khan alias Haji Khan and another 1999 PCr.LJ 868 and Bahadur Khan v. Ajmal Khan and another 1998 PCr.LJ 728 ref.

Muhammad Karim Anjum for Petitioner.

Muhammad Yaqoob Khan Marwat for Respondent.

Farooq Akhtar for the State

Date of hearing: 18th March, 2004.

2004 P Cr. L J 968

[Peshawar]

Before Abdur Rauf Khan Lughmani, J

MUHAMMAD SHAFIQ‑‑‑Petitioner

Versus

MUHAMMAD MIR KHAN and 3 others‑‑‑Respondents

Criminal Miscellaneous Bail Cancellation Petition No. 155 of 2003, decided on 17th October, 2003.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302 & 324‑‑‑Bail, grant of‑‑­Murder and hurt‑‑‑Notice to aggrieved/complainant party ‑‑‑Scope‑‑­Notice in such cases at bail stage must be given to aggrieved/complainant party.

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

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail‑‑‑Bail granted to accused by Sessions Judge without giving notice to complainant/injured party‑‑‑Validity‑‑‑High Court had earlier cancelled bail granted to an accused in another case by same Sessions Judge without notice to complainant and injured party‑‑‑Same Sessions Judge was still following his own notion and had turned blind eye to such settled principle of law‑‑‑High Court cancelled bail granted to accused and entrusted the bail application to Additional Sessions Judge for its decision in accordance with law, after hearing both the parties.

M. Yaqoob Khan Marwat for Petitioner.

Sanaullah Khan Gandapur for Respondents.

Dy. A.‑G. for the State.

Date of hearing: 17th October, 2003.

2004 PCr.LJ 1011

[Peshawar]

Before Tariq Parvez and Ijaz‑ul‑Hassan Khan, JJ

NAZIF KHAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.79 of 2003, decided on 19th December, 2003.

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

‑‑‑‑S. 13‑‑‑Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.7‑‑‑Appreciation of evidence‑‑‑Recovery of unlicensed Kalashnikov with live bullets from house of accused during raid to arrest proclaimed offender‑‑‑Witnesses examined by prosecution were all police officials‑‑‑House of accused was within Village Abadi, but Investigating Officer had not associated any notable of the area during recovery process‑‑‑Not conceivable that if proclaimed offender had escaped on getting information about arrival of police, accused would still keep ‑Kalashnikov in his possession instead of either concealing same in house by disarming himself or by trying to escape‑‑‑House of accused was occupied by other inhabitants‑‑‑Conviction and sentence awarded to accused were set aside giving him benefit of doubt and he was acquitted of the charge.

Muhammad Yaqoob Khan Marwat for Appellant.

Salimullah Ramzai for the State.

Date of 19th December, 2003.

2004 P Cr. L J 1033

[Peshawar]

Before Shah Jehan Khan and Qazi Ehsanullah Qureshi, JJ

DARYA KHAN‑‑‑Appellant

Versus

THE STATE and 2 others‑‑‑Respondents

Criminal Appeal No.51 of 2003, decided on 8th December, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 324‑‑‑Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.7‑‑‑Appreciation of evidence‑‑‑Statements of eye‑witnesses were materially contradictory‑‑‑Injured prosecution witness had not charged any person for firing‑‑‑No incriminating article had been recovered from spot‑‑‑Accused had been arrested from his house‑‑‑Statement of other prosecution witnesses were inconsistent to each other‑‑‑Case of prosecution was full of contradictions and discrepancies creating doubts, benefit of which would go to accused‑‑‑Conviction and sentence of accused were set aside and he was acquitted of the charge in circumstances.

Muhammad Yaqub Khan Marwat for appellant.

Shaukat Hayat Khan, D.A.‑G. for the State.

Respondents Nos.2 and 3 in person.

Date of hearing: 8th December, 2003.

2004 P Cr. L J 1068

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

GHULAM SADIQ‑‑‑Appellant

Versus

MUHAMMAD ARIF and another‑‑‑Respondents

Criminal Appeal No.26 of 2004, decided on 8th April, 2004.

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

‑‑‑‑S. 249‑A‑‑‑Acquittal of accused‑‑‑Powers of Magistrate‑‑Words "at any stage" as used in S.249‑A, Cr.P.C.‑‑‑Connotation‑‑‑Trial Magistrate under S.249‑A, Cr.P.C. had been given powers of acquitting an accused at any stage of the case if, after hearing prosecutor and accused and for reasons to be recorded, he considered, that charge against accused was groundless or there was no probability of his conviction of any offence‑‑­Use of words "at any stage" indicated the intention of Legislature that such order could be passed even before recording of evidence, if the facts of the case were such that the Court was satisfied that no useful purpose would be served by prosecuting further in the matter.

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

‑‑‑‑S. 417‑‑‑Penal Code (XLV of 1860), Ss.337‑A(i)/506/34‑‑‑Appeal against acquittal‑‑‑Accused case was acquitted by Trial Court by invoking provisions of S.249‑A, Cr.P.C.‑‑‑Conclusion drawn by Trial Court was neither arbitrary or fanciful nor artificial in nature‑‑­Appellate Court would be slow in disturbing the finding of fact arrived at by Trial Court who had the advantage of seeing witness‑‑‑Acquittal judgment was not to be interfered with lightly and due consideration and weight was to be attached to observations made in acquittal judgment‑‑­Such rule was to be followed more strictly if the acquittal judgment was recorded by Trial Court which had the opportunity of examining witnesses and observing their demeanour in the Court‑‑Order of acquittal was passed after 12 years of registration of case against accused and accused had suffered the agonies of protracted trial for 12 years‑‑‑Was not proper at such stage to remand the case for retrial‑‑­Such reasoned order of acquittal did not suffer from any legal infirmity or arbitrariness so as to render same open to any exception‑‑‑Appeal against acquittal was dismissed in circumstances.

Muhammad Akram and others v. The State 1995 SCMR 1359 and Munawar Shah v. Liaqat Hussain and others 2002 SCMR 713 ref.

Muhammad Ayaz Chaudhary for Appellant.

2004 P Cr. L J 1087

[Peshawar]

Before Talaat Qayum Qureshi, J

MALANG SAID‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous No.26 of 2004, heard on 2nd April, 2004.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.324/34, 337/334‑‑‑Bail, refusal of‑‑‑Injuries on the person of complainant allegedly caused by accused were found to be grievous‑‑‑Victim Was deprived of his left testicle for all times to come‑‑‑Provisions of Ss.337/334, P.P.C. would also be attracted in the case‑‑‑Since accused had been named in F.I.R. with a specific role of firing at the complainant and said injuries sustained by complainant could cause his death, accused was not entitled to be released on bail‑‑‑Role attributed to other three co‑accused .who had been released on bail, was distinguishable‑‑‑Accused had been attributed specific role of firing at the complainant‑‑‑Principle of consistency was not attracted in case of accused‑‑‑Bail application filed by accused was dismissed, in circumstances.

Dildar and others v. The State 1998 SCMR 358; Riaz Shah v. Mubarik Shah 2000 PCr.LJ 1167 and Khaliq Dad v. The State 2002 PCr.LJ 201 ref.

Muhammad Amin Khattak Lachi for Petitioner.

Ilyas Ahmad Qureshi for the State.

Shah Nawaz Khan for the Complainant.

Date of hearing: 2nd April, 2004.

2004 P Cr. L J 1111

[Peshawar]

Before Talaat Qayum Qureshi, J

IQBAL alias BALEY (IQBAL HUSSAIN) and others‑‑‑Petitioners

Versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous No.68 of 2004, decided on 27th February, 2004

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/34‑‑‑Bail, grant of‑‑‑ Nature of arms which accused and absconding co‑accused were carrying were not mentioned in F.I.R.‑‑‑No allegation was made against accused that they had also used any "Aslah Atsheen"‑‑‑Accused had not even been charged for aerial firing‑‑‑Seven accused had been assigned the role of grappling with the complainant their case stood at lower pedestal than that of actual accused who had been assigned the role of effective firing and who was still absconding‑‑‑Possibility of roping accuses persons into case who were real brothers of absconding co‑accused, could not be ruled out ‑‑‑Vicarious liability of accused would be determined at trial after recording evidence‑‑‑At the moment accused only stood charged for grappling with complainant and eye‑witness and not for firing at the deceased‑‑‑Accused were admitted to bail in circumstances.

Paraz Akram v. The State 1999 SCMR 1360 ref.

Safirullah Khan for Petitioners.

Waheedullah Khan for the State.

Ms. S. Naz Muhammadzai for the Complainant.

Date of hearing: 27th February, 2004.

2004 P Cr. L J 1129

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

RAHIM SHAH‑‑‑Appellant

Versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No. 611 and Criminal Revision No. 17 of 2003, decided on 29th December, 2003.

(a) Penal Code (XLV of 1860)‑‑--

‑‑‑‑Ss. 324/337‑F(v)‑‑‑Appreciation of evidence‑‑‑Corroboration, rule of‑‑‑Applicability‑‑‑Complainant/victim had fully supported prosecution version and charged accused for causing him fire‑arm injuries‑‑­Complainant was subjected to lengthy and searching cross‑examination, but nothing could be elicited to shatter his testimony‑‑‑Discrepancies in statement of complainant were inconsequential and not fatal to prosecution case‑‑‑Report had been made to police promptly without much delay and accused was specifically named therein‑‑‑Rule of corroboration was to be applied as an abundant caution and was not a mandatory rule to be always and necessarily insisted in each case‑‑­Requirement of corroboration depended upon the facts and circumstances of each case and in the nature of evidence in said case‑‑‑If the evidence did not suffer from any major or significant contradiction, the corroboration was not insisted‑‑‑Prosecution case, though largely depended on solitary statement of complainant, but conviction could be awarded on the basis of solitary statement of the victim provided it rang true and inspired confidence‑‑‑Quality of evidence and not quantity which was to be considered‑‑‑Accused could not prove that medical evidence was in conflict with prosecution story and that victim had concealed material fact from the Court‑‑‑Preparation of site‑plan on the following day of occurrence at the pointation of prosecution witness or non‑association of complainant was not fatal to prosecution case‑‑‑Two empties of .12 bore and blood‑stained earth recovered from the spot, had fully established the venue of occurrence‑‑‑Accused remained fugitive from law for about ‑ 10 months without any plausible and reasonable explanation ‑‑‑Abscondence though by itself was not sufficient to convict accused, but it was a strong piece of corroborative evidence of direct and circumstantial evidence in the case‑‑‑Conduct of accused after occurrence was indicative of his guilt when considered in conjunction with ocular and circumstantial evidence in the case ‑‑­Complainant in addition to receipt of injury on the right hand, also had sustained injury on his thigh, resulting into fracture to femur‑‑‑Accused, in circumstances had rightly been convicted under S.337‑F(v), P.P.C.‑‑­Mere fact that no charge under S.337‑F(v), P.P.C. had been framed, but sentence had been awarded thereunder, was inconsequential and provided no ground for upsetting order of conviction‑‑‑Strong malice set up in F.I.R., had successfully been proved‑‑‑Trial Court, in circumstances, had rightly convicted and sentenced accused and in absence of any misreading or non‑reading of evidence, judgment of two Courts could not be interfered with‑‑‑No case for enhancement of sentence having been made out, submission of State Counsel that order qua sentence of accused was bad in the eye of law and was not sustainable, did not carry weight‑‑‑Accused having been awarded legal and appropriate sentence, case did not call for interference.

Ramzan v. The State 1975 PCr.LJ 1210; Najeebullah Khan v. The State and others 2002 MLD 872 and Mst. Roheeda v. Khan Bahadur and another 1992 SCMR 1036 ref.

(b) Criminal trial‑‑‑--

‑‑‑‑Evidence‑‑‑Rule of corroboration‑‑‑Rule of corroboration was applied by way of abundant caution and was not a mandatory rule to be always and necessarily insisted in each case‑‑‑Requirement of corroboration depended upon the facts and circumstances of each case and the nature of evidence therein‑‑‑If the evidence did not suffer from any major or significant contradiction, the corroboration was not insisted.

(c) Criminal trial‑‑‑--

‑‑‑‑ Appreciation of evidence‑‑‑Conviction could be awarded on the basis of solitary statement of the victim, provided it rang true and inspired confidence‑‑‑Quality of evidence and not quantity which was to be considered.

Mali v. The State 1969 SCMR 76; Muhammad Siddique alias Ashraf alias Achhi and 3 others v. The State 1971 SCMR 659; Allah Bakhsh v. Shammi and others PLD 1980 SC 225 and Riaz Hussain v. State 2001 SCMR 177 ref.

(d) Criminal trial‑‑‑--

‑‑‑‑ Abscondence of accused ‑‑‑Abscondence, no doubt, by itself was not sufficient to convict an accused person, but was a strong piece of corroborative evidence of the direct and circumstantial evidence to the case.

Zahoorul Haq for Appellant.

Muhammad Jamshed Khan for the State.

Mian Qamar Gul Kakakhel for the Complainant.

Date of hearing: 12th December, 2003.

2004 P Cr. L J 1138

[Peshawar]

Before Shah Jehan Khan and Ijaz‑ul‑Hassan Khan, JJ

ARAB GUL‑‑‑Appellant

Versus

MIR SHAH BAZ and another‑‑‑Respondents

Criminal Appeal No.59 of 2003, decided on 31st March, 2003.

(a) Penal Code (XLV of 1860)‑‑‑------

‑‑‑‑S. 324‑‑‑Appreciation of evidence‑‑‑Sufficient material was on record to establish that accused while armed with Kalashnikov, fired at the complainant as a result of which complainant sustained serious injuries on his person‑‑‑No discrepancy or conflict was found between the version of complainant and medical evidence‑‑‑Objection that statement of complainant was not in consonance with medical evidence, was misconceived, in circumstances‑‑‑During investigation, four empties of 7.62 bore discharging fresh smell and three spent bullets were recovered by Investigating Officer from the spot, which recovery also lent support to prosecution‑ case ‑‑‑Prosecution case though largely depended on solitary statement of complainant; but conviction could be awarded on the basis of solitary statement of victim provided it rang true and inspired confidence‑‑‑Quality of evidence and not the quantity was to be considered‑‑‑Motive as furnished in F.I.R as well as in statement of complainant, was established satisfactorily‑‑‑Mere absence or weakness of motive would not come in the way of prosecution, if same was otherwise proved by reliable evidence‑‑‑Motive was not considered a sine qua non for proving the offence and mere absence of motive was no ground to doubt the truth of prosecution version‑‑­Abscondence of accused at the most could be taken as corroborative piece of evidence and not the evidence of change and in absence of any other corroborative evidence, said evidence, even if found convincing, would not be sufficient by itself to warrant the conviction of accused‑‑­Abscondence would go a long way to corroborate and strengthen the truth of the prosecution version‑‑‑Prosecution had succeeded in proving its case against accused beyond reasonable doubt and judgment of Trial Court was not tainted with any vitiating factor so as to warrant interference by High Court in appeal‑‑‑Judgment of Trial Court was maintained in appeal, in circumstances‑‑‑Accused was awarded appropriate sentence and no case had been made out for lesser sentence.

Mali v. The State 1969 SCMR 76; Muhammad Siddique alias Ashraf alias Achhi and 3 others v. State 1971 SCMR 659; Allah Bakhsh v. Shammi and others PLD 1980 SC 225 Riaz Hussain v. State 2001 SCMR 177 and Aminullah v. The State PLD 1976 SC 632 ref.

(b) Criminal Trial‑‑‑-----

‑‑‑‑ Appreciation of evidence‑‑‑Conviction could be awarded on the basis of solitary statement of the victim provided it rang true and inspired confidence‑‑‑Quality of evidence and not the quantity was to be considered.

(c) Criminal Trial‑‑-----

‑‑‑‑Motive‑‑‑Mere absence or weakness of motive would not come in the way of prosecution if the case was otherwise proved by reliable evidence‑‑‑Motive is not considered a sine qua non for proving the offence and mere absence of motive was no ground to doubt the truth of prosecution case.

Government of Sindh v. Sobharo 1993 SCMR 585 ref.

(d) Criminal Trial‑‑‑------

‑‑‑‑ Abscondence of accused‑‑‑Abscondence of accused at the most could be taken as corroboration of the charge and not the evidence of the charge and in absence of any other corroborative evidence, said evidence even if found convincing, would not be sufficient by itself to warrant the conviction of accused.

Khawaja Nawaz Khan for Appellant.

Muhammad Saleem Khan Gandapur for the State

Complainant in person.

Date of hearing: 29th March, 2004

2004 P Cr. L J 1146

[Peshawar]

Before Ejaz Afzal Khan and Fazlur Rehman Khan, JJ

SIKANDAR SHAH‑‑‑Appellant

Versus

DIN MUHAMMAD and 2 others‑‑‑Respondents

Criminal Appeals Nos.9 and 11 of 2003, decided on 8th April, 2003.

Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑Ss. 365‑A/109/148/149‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑‑­Appreciation of evidence‑‑‑Entire affair from the very inception seemed to be a `Drama' rather than an actual occurrence‑‑‑When alleged abductee himself neither charged nor expressed suspicion against anybody, what was that extraordinary thing for which police continued its pursuit to trace and track down the person responsible for commission of alleged crime‑‑‑Over excitement of police had led them to put crime on a person/accused whose participation in the crime was a physical impossibility when according to confessional statement recorded by Magistrate accused had been in the police custody during the period of occurrence‑‑‑Reasons justifying suspicion as to the complicity of accused in the crime wee not known‑‑‑Such action of police was nothing, but a wild goose chase‑‑‑Prosecution ,was bound to explain circumstances justifying suspicion even though person suspected turned out to be an actual culprit particularly when charge against accused emanated from no other source except his confessional statement‑‑‑When evidence in the behalf was woefully lacking, only inference which could reasonably be drawn was that Investigating Officers after failing to find out actual culprit, found a scapegoat, in, accused to show their performance and efficiency‑‑‑Identification of accused during identification parade, in no way would improve case of prosecution when prosecution witness had opportunity of seeing accused before such exercise was held‑‑‑Story as to alleged ransom also appeared to be no better than cock and bull story ‑‑‑Confessional statement of accused which was the only evidence allegedly connecting accused with crime, also did not appear to be free from the taint of torture, duress and manipulation as accused was again taken into custody and alleged confessional statement was recorded after his prolonged custody of 17 days‑‑‑Ocular account of occurrence did not tend to incriminate any of accused persons, besides the fact that it was bristling with doubts and infirmities‑‑‑Prosecution having failed to prove the guilt of accused beyond any shadow of doubt, conviction and sentence recorded against accused by Trial Court, were set aside and they were directed to be released.

Raz Muhammad v. The State PLD 2002 SC 56 ref.

Abdul Latif Khan Baloch for Appellant.

Shaukat Hayat Khan Khakwani, Dy. A.‑G. for the State.

Respondents Nos.1 and 2 in person.

Date of hearing: 8th April, 2003.

2004 P Cr. L J 1154

[Peshawar]

Before Qazi Ehsanullah Qureshi, J

MUHAMMAD NISAR KHAN‑‑‑Petitioner

Versus

THE STATEY and 2 others‑‑‑Respondents

Criminal Miscellaneous Bail No.3 and 201 of 2003, decided on 9th May, 2003.

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

‑‑‑S. 497(2)‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Two versions arising from the same incident, one given by complainant in F.I.R. and other by apposite party‑‑‑Bail was normally granted in such case on the ground of further inquiry for the reason that question as to which version was correct, was to be decided by Trial Court which was supposed to record evidence and also appraise same in order to come to a final conclusion in that regard.

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

‑‑‑‑S. 497(2)‑‑‑Penal Code (V of 1860), Ss.302/324/34‑‑‑Bail, grant of‑‑­Further inquiry‑‑‑Out of four accused persons, three had been released on bail by Trial Court‑‑‑Accused was behind the bars for the last about 8/9 months‑‑‑Investigation in the case was completed and accused was no more required for further investigation besides the fact that accused party of cross‑case was already on bail ‑‑‑F.I.R. had revealed that complainant alongwith others was proceeding towards police lines for duty when incident took place and it was nowhere clear from F.I.R. as well as from the police record as to who was the employee of the police, whether all or anyone of them‑‑‑Record had not mentioned that it was duty hour or otherwise‑‑‑Prosecution had not yet confirmed from concerned quarters the said fact‑‑‑Such circumstances had made out a case of further inquiry‑‑‑Accused was admitted to bail, in circumstances.

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

‑‑‑‑S. 497(5)‑‑‑Application for cancellation of bail‑‑‑One of co‑accused was granted bail‑on ground of minority as according to his school leaving certificate, he was under sixteen years on the day of occurrence‑‑‑No allegation of misuse of the concession of bail or tampering with the evidence or absconsion was against the accused‑‑‑Bail granted to said co‑accused could not be cancelled.

Sanaullah Khan Gandapur and Abdul Latif Khan Baloch for Petitioner.

Dy.A.‑G. for the State.

Pir Liaqat Ali Shah for the Complainant.

Date of hearing: 9th May, 2003.

2004 P Cr. L J 1161

[Peshawar]

Before Malik Hamid Saeed and Fazlur Rehman Khan, JJ

SHAHZULLAH‑‑‑Appellant

Versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No. 2 of 2002, decided on 3rd February, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Prosecution case entirely rested upon the statement of prosecution witness who was not an eye­witness of occurrence, but he had furnished `last seen evidence of deceased in the company of accused and no other evidence was available from any independent source to connect accused with commission of offence‑‑‑Said last seen evidence was in the nature of "circumstantial evidence" and in such evidence rule was that no link in the chain should be broken and circumstances should be such as could‑not be explained away on any hypothesis other than the guilt of accused‑‑­Accused, in circumstances, was acquitted giving him benefit of doubt.

1972 SCMR 15; PLD 1991 SC 718; 1994 PCr.LJ 956 and PLD 1996 SC 305 ref.

Abdul Latif Baloch for Appellant.

Rajab Ali for the State.

Waheed Anjum for the Complainant.

Date of hearing: 3rd February, 2003.

2004 P Cr. L J 1177

[Peshawar]

Before Qazi Ehsanullah Qureshi, J

MUHAMMAD TARIQ‑‑‑Petitioner

Versus

Malik GOHAR REHMAN and another‑‑‑Respondents

Criminal Miscellaneous No. 100 of 2001, decided on 8th October, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.411/420/458/471‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14‑‑‑Bail, grant of‑‑‑Accused after his arrest had made a voluntary confessional statement admitting his guilt and that of his co‑accused‑‑­Accused was also involved in many other cases of such‑like nature and he seemed to be a habitual offender which had made the conduct of accused doubtful‑‑‑Prima facie reasonable grounds existed for believing that accused appeared to be connected with crime with which he was charged‑‑‑Co‑accused was main accused in the case at whose instance and behest the crime was committed and said co‑accused was granted bail by Trial Court‑‑‑Keeping in view the role played by said co‑accused in the commission of crime, suo motu notice was issued to him as to why his bail should not be cancelled.

Faroddon Khan Jadoon, for Petitioner.

Muhammad Ayub Khan, D.A.‑G./Special Prosecutor of A.N.F. for Respondents.

Malik Masoodur Rehman Awan for the Complainant.

Date of hearing: 8th October, 2001.

2004 P Cr. L J 1194

[Peshawar]

Before Shah Jehan Khan and Ijaz‑ul‑Hassan Khan, JJ

AKBAR KHAN‑‑‑Appellant

Versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No. 111 of 2003, decided on 1st April, 2004.

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

‑‑‑‑S. 9‑‑‑Appreciation of evidence‑‑‑Chemical Examiner's report was in positive‑‑‑Recovery of Charas from the accused had been proved by the S.H.O. and a police constable who had no enmity or malice against him for his false implication and had fully supported the prosecution case‑‑­Presence of the accused at the spot was not denied‑‑‑Defence plea was not impressive‑‑‑Section 103, Cr.P.C. being not applicable to the provisions under the Control of Narcotic Substances Act, 1997, non­compliance thereof had not made the trial of accused bad in the eye of law‑‑‑Discrepancies pointed' out it prosecution evidence were insignificant‑‑Functioning of the Investigating Officer as the complainant and as a witness in the case had not cast any doubt on the prosecution case‑‑‑Conviction and sentence of accused were upheld in circumstances.

Abdul Waheed v. The State 1999 PCr.LJ 1595; Budho Malghani v. The State 2002 MLD 1293; Muhammad Khan v. The State 1994 SCMR 1543; Buner Gul v. The State 1999 PCr.LJ 728; Fida Jan v. The State 2001 SCMR 36 and State through Advocate‑General Sindh v. Bashir and others PLD 1997 SC 408 ref.

(b) Interpretation of statutes‑‑‑

‑‑‑‑Special and general law‑‑‑When in an enactment a special procedure has been laid down and a special provision has been made on a particular subject, then general provision does not apply to the subject.

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

‑‑‑‑S. 9‑‑‑Appreciation of evidence‑‑‑Recovery‑‑‑Police witnesses‑‑­Principle‑‑‑Official witnesses are as good as private witnesses‑‑‑Police officials are competent witnesses to attest a recovery memo and their testimony cannot be discarded on the ground that they belong to police Department.

Fida Jan v. The State 2001 SCMR 36 ref.

Khawaja Nawaz Khan for Appellant.

Muhammad Sharif Chaudhry, D.A.‑G. for the State.

Date of hearing: 1st April, 2004.

2004 P Cr. L J 1209

[Peshawar]

Before Ejaz Afzal Khan, J

SAMIULLAH alias SAMI‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.20 of 2003, decided on 10th October, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 377‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12‑‑‑Appreciation of evidence ‑‑‑Res gestae‑‑‑Occurrence was not witnessed by any of the prosecution witnesses‑‑‑Even mother and uncle of victim child, who appeared as witnesses, had not witnessed occurrence‑‑‑Whatever was stated by witnesses in the Court was based on account narrated by the victim soon after the occurrence‑‑‑Victim though appeared in witness‑box, but he did not depose about incident because Trial Court after making preliminary query to test his capacity as a witness, declared him unfit to stand the test of cross‑examination on account of his tender age‑‑‑Court, in circumstances was left only with evidence of res gestae‑‑‑Circumstances, facts and declarations which spontaneously grow out of main fact and serve to illustrate its character being res gestae, were admissible provided they were so contemporaneous with main fact as to exclude the possibility of deliberation and fabrication‑ ‑‑Such declarations being part of res gestae, were admissible in evidence even though declarant was incompetent to testify or was not produced in the Court altogether‑‑‑Spontaneous declaration of a child too young to be permitted to testify, could be admissible as part of res gestae‑‑‑Such un-sworn declaration was to be treated at par with sworn declaration‑‑‑Conviction on the basis of res gestae alone under no circumstances, could be recorded without corroboration‑‑‑Prosecution having failed to prove case against accused beyond any shadow of doubt, conviction and sentence recorded by Trial Court, were set aside and he was set free.

Muhammad Aslam Shah v. The State 1993 PCr.LJ 704; Sameeullah Khan v. State 2000 PCr.LJ 769; Muhammad Din and 2 others v. The State 1988 PCr.LJ 238; Abdullah Shah v. The State 1968 SCMR 852; Umar v. The State 1969 SCMR 600; Swal Das v. State of Bihar AIR 1974 SC 778; Faqir Muhammad v. The State PLD 1971 Lah. 929 and Muhammad Sugal Mamasan Rer Alalah v. The King AIR (33) 1946 PC 3 ref.

Saifur Rehman Khan for Appellant.

Shaukat Hayat Khan. D.A.‑G. for the State.

Ghazanfar Abbas Sandala for the Complainant.

Date of hearing: 10th October, 2003.

2004 P Cr. L J 1224

[Peshawar]

Before Shah Jehan Khan and Ijaz‑ul‑Hassan Khan, JJ

SAWAR JAN‑-‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 118 of 2003, decided on 6th April, 2004.

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

‑‑‑‑S. 9‑‑‑Appreciation of evidence‑‑‑Mere fact that the police witnesses had no enmity or motive to falsely implicate the accused, by itself, was not a strong circumstance to hold that whatever had been alleged by the prosecution should be implicitly relied upon without asking for, supporting evidence‑‑‑Prosecution was bound to independently prove beyond doubt that it was the accused who had perpetrated the offence‑‑­House from where the recovery was made was a house in joint possession and the accused was not residing alone in it‑‑Accused was not present in the house at the time of recovery and he was arrested. subsequently‑ ‑‑Accused, thus, was not in direct conscious possession of the recovered narcotics and had no concern with the same‑‑‑Besides, parcels of the alleged Charas and opium were sent for analysis after 15/16 days of the recovery and the prosecution had failed to explain as to in whose possession the same had remained for such time‑‑‑Possibility of the substitution of the recovered intoxicant, therefore, could not be ruled out‑‑‑Accused was acquitted on benefit of doubt in circumstances.

Tila Muhammad v. The State 2003 PCr.LJ 1379; Mst. Shamim v. The State 2003 PCr.LJ 1529 and Mst. Iqbal Bibi v. State 2000 PCr.LJ 1812 ref.

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

‑‑‑‑S. 9‑‑‑Burden of proof‑‑‑Onus to prove guilt is always on the prosecution which is to prove that it is the accused person who has perpetrated the offence‑‑‑Prosecution is to independently discharge the onus irrespective of any plea taken by accused‑‑‑Mere fact that the police witnesses had no enmity or grudge to falsely implicate the accused, by itself, is not a strong circumstance to hold that whatever has been alleged by the prosecution should be implicitly relied upon without asking for supporting evidence‑‑‑Prosecution is not absolved of its initial duty to prove its case beyond reasonable doubt in circumstances.

Ashiq Hussain Khan and Saleemullah Khan Ranazai for Appellant.

Gohar Ali Zaidi for the State.

Date of hearing: 1st April, 2004.

2004 P Cr. L J 1239

[Peshawar]

Before Ejaz Afzal Khan and Fazlur Rehman Khan, JJ

JAMSHED alias JAMMI‑‑‑Appellant

Versus

THE STATE and others‑‑-Respondents

Criminal Appeal No. 12 of 2001, decided on 15h April, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation‑ of evidence‑‑‑None of the witnesses charged accused for having committed crime, except one and that too in his cross‑examination made by counsel for prosecution after he was declared hostile‑‑‑No doubt a witness who had been declared hostile, would not become unworthy of reliance and his evidence could not be brushed aside if found true and credible, but since said witness had spoken in two different voices and two different tones his evidence had to be assessed with much more care and circumspection‑‑‑No independent or un­impeachable evidence being on record which could tend to lend support to the testimony of hostile witness, his testimony in circumstances of case could not be‑considered for holding accused guilty of offence he was charged with‑‑‑F.I.R. in the case having been recorded after preliminary investigation would lose its sanctity and even probative worth because where F.I.R. was recorded after preliminary investigation, it, could neither be treated sacrosanct nor authentic‑‑­Prosecution witnesses neither were natural nor probable nor their presence at the crucial time appealed to reason‑‑‑Alleged confessional statement of accused was neither voluntary nor the Magistrate who recorded same had fulfilled necessary formalities‑‑‑Even otherwise alleged confessional statement being inconsistent with prosecution version could not be held either voluntary or true‑‑‑Not safe to record conviction on such piece of evidence‑‑‑Prosecution having failed to bring home guilt to accused beyond any shadow of doubt, his conviction and sentence were set aside and he was acquitted of charge.

Mashal Khan and others v. The State 1997 PCr.LJ 478; Baz Gul v. The State 2001 PCr.LJ 1442; Muhammad Israr Khan v. The State 2002 SD 512; Mst. Robina Bibi v. The State 2001 SCMR 1914; State v. Abdul Ghafar 1996 SCMR 678; Raz Muhammad v. The State PLD 2002 SC 56 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 150‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Hostile witness‑‑­Witness who had been declared hostile, would not become unworthy of reliance and his evidence could not be brushed aside if found true and credible, but where he had spoken in two different voices and in two different tones his evidence had to be assessed with much greater care and circumspection‑‑‑May be he was telling truth when exonerating accused or may be he was telling truth when charging him‑‑‑Only those voices and tones of witnesses could be considered worthy of reliance which were supported by sources essentially unimpeachable because one tainted piece of evidence could not corroborate another tainted piece of evidence.

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

‑‑‑S. 154‑‑‑F.I.R.‑‑‑Authenticity of‑‑‑F.I.R. being the basic document in criminal case was vested with much greater sanctity, but where it was recorded after preliminary investigation, it would lose its sanctity and probate worth and would become a suspect document rather than one giving a natural, spontaneous and straightforward account of occurrence‑‑‑F.I.R. recorded after preliminary investigation, could not be treated either sacrosanct or authentic.

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

‑‑‑‑S. 164‑‑‑Confessional statement‑‑‑Voluntariness of‑‑‑Record should contain a full account of steps taken to ensure the voluntariness of confession because purpose behind preliminaries to recording a confession was not merely to satisfy the Magistrate, but also the Court which would hear the case‑‑‑Where neither the record nor the statement of Magistrate recorded in the Court had shown that accused was given sufficient time to compose himself, it could not be held to be voluntary statement.

State v. Muhammad Naseer 1993 SCMR 1822 and Ghulam Muhammad v. The State PLD 1971 Lah. 850 ref.

Saifur Rehman for Appellant.

Rajab Ali for the State.

Allah Nawaz Khan for the Complainant.

Date of hearing: 10th April, 2003.

2004 P Cr. L J 1252

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

ASGHAR KHAN‑‑‑Petitioner

Versus

THE STATE and 2 others‑‑‑Respondents

Criminal Miscellaneous Bail Petition No. 119 of 2004, decided on 14th May, 2004.

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

‑‑‑‑S. 497‑‑‑Bail, grant of‑‑Principles‑‑‑Court at bail stage had only to see whether accused was connected with commission of crime or not and for that purpose, only tentative assessment of evidence was to be made and deeper appreciation of evidence was not called for‑‑‑Mind of the Court had to be satisfied that case under its consideration was fit for grant of bail in line with guidelines provided by superior Courts.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/109/120‑B/34‑‑­West Pakistan Arms Ordinance (XX of 1965), S.13‑‑‑Bail, refusal of‑‑­Name of accused though did not figure in F.I.R. and no one was charged in report of murder of deceased and injury to complainant, but sufficient material had been collected by police during investigation of case to connect accused with commission of crime‑‑‑Accused was arrested after fifteen days of occurrence and a .30 bore pistol alongwith charger containing four live cartridges of .30 bore was recovered from his possession‑‑‑Report of Fire‑arms Expert with regard to pistol and crime empties was positive‑‑‑Mere fact that co‑accused had been released on bail, by itself, was no good ground to treat accused similarly‑‑‑Roles attributed to co‑accused were quite different qua the role assigned to accused‑‑‑Reasonable grounds were available to believe that accused was apparently associated with commission of crime, which would not entitle him to benefit of bail‑‑‑Bail having been refused to accused for valid reasons, no justification was there to take a contrary view and enlarge accused on bail‑‑‑Bail application was dismissed, in circumstances.

2002 PCr.LJ 605 and 2001 YLR 2346 ref.

Gohar Zaman Khan Kundi for Petitioner.

S. Abid Hussain Shah for the State.

Respondent No.3 in person.

Date of hearing: 14th May, 2004.

2004 P Cr. L J 1318

[Peshawar]

Before Talaat Qayum Qureshi, J

PERVAIZ‑‑‑Petitioner

Versus

THE STATE and 2 others‑‑‑Respondents

Criminal Miscellaneous No. 362 of 2004, decided on 21st May, 2004.

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

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), S.324/34‑‑‑Bail, grant of‑‑­Further inquiry‑‑‑Earlier, bail was granted to accused by Judicial Magistrate, but same having been cancelled by Sessions Judge, accused had filed application for bail in the High Court‑‑‑Bail granting order passed by Judicial Magistrate was a detailed order and Judicial Magistrate had appreciated that neither any weapon of offence was mentioned in F.I.R. nor any empty was recovered from the spot nor weapon of offence was recovered from possession of accused‑‑‑Medico­legal report had also shown that complainant had received injury on non­-vital part of his body judicial Magistrate, in circumstances had rightly reached at tile conclusion that case of accused was that of further inquiry and he had rightly released accused on bail‑‑‑Sessions Judge was not justified in circumstances to cancel bail granted to accused by Judicial Magistrate‑‑‑Since case of accused was that of further inquiry, accused was admitted to bail.

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

‑‑‑‑S. 497(5)‑‑‑‑Bail, cancellation of‑‑‑Principles‑‑‑Once the Court of competent jurisdiction would pass, grant of bail order, bail could be cancelled/withdrawn on very strong and exceptional grounds‑‑‑Bail could be cancelled where a person on bail, either tried to tamper with the evidence; or committed acts of violation against prosecution witnesses or repeated offence or hampered or created obstacle in the way of investigation or nail granting order was perverse, fanciful or arbitrary and same had been procured by practising fraud or misrepresentation.

Muhammad Saleem Toru for Petitioner.

Muhammad Saeed Khan, Addl. A.‑G. for the State.

Asad Kamal for the Complainant.

Date of hearing: 21st May, 2004.

2004 P Cr. L J 1336

[Peshawar]

Before Shahzad Akbar Khan, J

ISLAM PARVEZ alias ASLAM PARVEZ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.234 of 2004, decided on 23rd April, 2004.

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

‑‑‑‑S. 5(2)‑‑‑Penal Code (XLV of 1860), S.161‑‑‑Appreciation of evidence‑‑‑Accused had not denied receiving of amount recovered from his possession by raiding party, but he had explained, that it was never received by him as bribe/illegal gratification, but same in fact it was recovery of public money in the form of agricultural tax due from father of the complainant‑‑‑Accused to prove his version had produced two defence witnesses who were cross‑examined, but credence of their testimony could not be shattered‑‑‑Statements of said two defence witnesses had found strong support from the record as the list of owners of Mauza concerned pertaining to relevant years was produced by accused wherein name of father of complainant was appearing which indicated that amount of agricultural tax was outstanding against him‑‑­Mere recovery of tainted money would not be sufficient to establish guilt of accused on charge of receiving illegal gratification‑‑‑Hearing of conversation between accused and complainant was essential because accused had taken the stance which radically ran counter to charge of receiving illegal gratification, but no such conversation was heard by members of raiding party‑‑‑Defence version, in circumstances was more congruous and in harmony with natural probabilities and bore great weight as compared to prosecution evidence‑‑‑Prosecution having failed to prove its case against accused on the charge of receiving illegal gratification, conviction and sentence recorded against accused by Trial Court, were set aside, in circumstances.

Muhammad Ashraf v. The State 1996 SCMR 181 and Allah Diwaya v. The State 1973 PCr.LJ 1036 ref.

Mian Mohibullah Kakakhel and Amjid Ali for Appellants.

Zakir Hayat for the State.

Date of hearing: 23rd April, 2004.

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2004 P Cr. L J 653

[Quetta]

Before Raja Fayyaz Ahmed, C.J. and Akhtar Zaman Malghani, J

Haji BEHRAM KHAN ACHAKZAI and others‑‑Appellants

Versus

THE STATE through National Accountability Bureau and others‑‑‑Respondents

Suo Motu Action and proceeding in Ehtesab Appeals Nos.6 of 2001, 9 of 2000, 45 and 46 of 2001, decided on 28th August, 2003.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction ‑‑‑Scope‑‑‑Suo motu powers‑‑­High Court under Art.199 of the Constitution has no jurisdiction to register a Constitutional petition suo motu and grant relief to a party.

2001 SCMR 1822 ref.

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

‑‑‑‑S. 9(a)(vi)/10(a)‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition on suo motu action taken by High Court‑‑­Validity‑‑‑State through‑ NAB Authorities had not challenged the impugned order passed by the Chief Executive of the Province/Governor, pursuant to which the accused was released on parole, by filing petition under Art. 199 of the Constitution, 1973 for issuance of writ in the nature of certiorari and seeking for appropriate direction of the Court by invoking Constitutional jurisdiction within the specified parameters of Art. 199 of the Constitution; rather, after quite some time during pendency of the suo motu proceedings taken by High Court, DPG/NAB had filed an application in the appeals seeking direction of the Court that the accused be taken into custody as his release on parole was illegal on the grounds which could not be equated to a Constitutional petition and in the said application even the order passed by the Chief Executive of the Province/Governor was not challenged‑‑‑In absence of an application filed by an aggrieved person on any allegation of excess or absence of jurisdiction or exercise of jurisdiction not vesting in such Authority, the suo motu proceedings initiated by High Court being incompetent, were dropped and the notice issued in pursuance thereof was consequently discharged.

PLD 1993 Quetta 9; Mian Nawaz Sharif and others v. Muhammad Habib Wahab‑al‑Khairi and others 2000 SCMR 1046; 2001 SCMR 1822; Mst. Zubeda A. Sattar and others v. Karachi Building Control Authority and others 1999 SCMR 243; Muhammad Nawaz and another v. The State 1987 SCMR 1399 Fazl‑e‑Haq, Accountant‑General, West Pakistan v. The State PLD 1960 SC (Pak.) 260; The Tariq Transport Company v. Sargodha Bhera Bus Service and others PLD 1958 SC (Pak.) 437; The State of Pakistan and another v. Mehrajuddin PLD 1959 SC (Pak.) 147; Akhtar Abbas and others v. Nayyar Hussain and others 1982 SCMR 549; Fazl‑e‑Haq, A.‑G. West Pakistan v. The State PLD 1960 SC (Pak.) 295; Shehnaz Begum v. The Honourable Judges of High Court, Sindh and Balochistan and another PLD 1971 SC 677; and Haji Muhammad Sadiq and others v. Khairati 1984 CLC 2239 ref.

Muhammad Riaz Ahmed for Appellants (in Ehtesab Appeals Nos.6 of 2001, 9 of 2000 and 45 of 2001).

M.S. Rakhshani DPG, NAB, Salahuddin Mengal, A.‑G., Balochistan, K.N. Kohli, Dy. A.‑G. for Respondent (in Ehtesab Appeals Nos. 6 of 2001, 9 of 2000 and 45 of 2001).

Date of hearing: 29th July, 2003.

2004 P Cr. L J 764

[Quetta]

Before Raja Fayyaz Ahmed, C. J. and Akhtar Zaman Malgani, J

MUHAMMAD ZAHIR alias TIKO‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Application No.786 of 2002 in Criminal Appeal No.332 of 1998, decided on 13th August, 2003.

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

‑‑‑‑S. 382‑B‑‑‑Period of detention to be considered while awarding sentence of imprisonment‑‑‑Scope‑‑‑Section 382‑B, Cr.P.C. is mandatory and ordinarily its benefit is to be extended to the accused for the period he remained or detained in custody as an under trial prisoner at the time of awarding him sentence of imprisonment by the Trial Court in the normal course, unless the case is of exceptional facts and circumstances or the conduct of accused warrants denial of such benefit to him.

1995 SCMR 671; PLD 1998 SC 152; 1999 SCMR 2765; 2001 SCMR 1987; PLD 1984 Lah. 461; 1991 PCr.LJ 90; 1994 PCr.LJ 438; 1991 SCMR 151; 1993 SCMR 224; 1994 PCr.LJ 2115; 2001 SCMR 416; Criminal Appeal No. 113 of 1989 and Murder Reference No. 189 of 1989; 2001 SCMR 1987; 1995 SCMR 1525; Mukhtaruddin v. The State 1997 SCMR 55; Liaqat Ali v. The State PLD 1995 SC 485 ref.

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

‑‑‑‑Ss. 561‑A & 382‑B‑‑‑High Court's competency to give effect to S.382‑B, Cr.P.C. under its inherent jurisdiction‑‑‑High Court in exercise of its inherent jurisdiction under S.561‑A, Cr.P.C. invocable at any stage of time by a convict undergoing term of imprisonment awarded by a Court can recall or alter order, if any, passed by it or by the Trial Court in order to give effect to the mandatory provisions of the law having been violated or omitted to have been considered by inadvertence or otherwise, by taking into consideration conduct of the prisoner during trial, nature and gravity of the illegal act committed by him, the role played by him and the quantum of sentence of imprisonment awarded to him.

1995 SCMR 671; PLD 1998 SC 152; 1999 SCMR 2765; 2001 SCMR 1987; PLD 1984 Lah. 461; 1991 PCr.LJ 90; 1994 PCr.LJ 438­1991 SCMR 151; 1993 SCMR 224; 1994 PCr.LJ 2115; 2001 SCMR 416; Criminal Appeal No. 113 of 1989 and Murder Reference No. 189 of 1989; 2001 SCMR 1987; 1995 SCMR 1525; Mukhtaruddin v. The State 1997 SCMR 55; Liaqat Ali v. The State PLD 1995 SC 485 ref.

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

‑‑‑‑S. 382‑B‑‑‑Scope‑‑‑Extent of the benefit of S.382‑B, Cr.P.C. to which an accused may be found entitled, sentenced to any term of imprisonment, has also been made determinable by the Court sentencing the accused, keeping in view his conduct during the trial etc., having nexus with the object of the said provision of law.

1995 SCMR 671; PLD 1998 SC 152; 1999 SCMR 2755; 2001 SCMR 1987; PLD 1984 Lah. 461; 1991 PCr.LJ 90; 1994 PCr.LJ 438: 1991 SCMR 151; 1993 SCMR 224; 1994 PCr.LJ 2115; 2001 SCMR 416; Criminal Appeal No. 113 of 1989 and Murder Reference No. 189 of 1989; 2001 SCMR 1987; 1995 SCMR 1525; Mukhtaruddin v. The State 1997 SCMR 55; Liaqat Ali v. The State PLD 1995 SC 485 ref.

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

‑‑‑‑Sa. 382‑B & 561‑A‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Benefit of S.382‑B, Cr.P.C. to accused refused‑‑‑Accused alongwith his co-­accused was found guilty for causing Qatl‑i‑Amd of two innocent persons and causing serious bullet injuries to a prosecution witness‑‑‑After commission of offence the accused had absconded and could not be arrested for a considerable time‑‑‑Said barbaric and gruesome offence was committed by the accused in the month of Ramzan only 15 minutes before "Aftar" time‑‑‑Accused in view of the gravity of the offence and his conduct was not found entitled to the benefit of S.382‑B, Cr.P.C.‑‑­Application was dismissed accordingly.

1995 SCMR 671; PLD 1998 SC 152; 1999 SCMR 2765; 2001 SCMR 1987; PLD 1'984 Lah. 461; 1991 PCr.LJ 90; 1994 PCr.LJ 438; 1991 SCMR 151; 1993 SCMR 224; 1994 PCr.LJ 2115; 2001 SCMR 416; Criminal Appeal No. 113 of 1989 and Murder Reference No. 189 of 1989; 2001 SCMR 1987; 1995 SCMR 1525; Mukhtaruddin v. The State 1997 SCMR 55; Liaqat Ali v. The State PLD 1995 SC 485 ref.

Imran‑ul‑Haq for Applicant.

Salahuddin Mengal, A.‑G. for the State.

Date of hearing: 19th March, 2003.

2004 P Cr. L J 1308

[Quetta]