PCRLJ 2005 Judgments

2005 P Cr. L J 45

[Federal Shariat Court]

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

DILWAR---Appellant

Versus

THE STATE---Respondent.

Criminal Appeal No. 10-K of 2004, decided on 19th August, 2004.

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

----Arts. 3/4---Control of Narcotic Substances Act (XXV of 1997), S.9--­Criminal Procedure Code (V of 1898), S.537---Appreciation of evidence---Accused at the commencement of trial was charge-sheeted for offences under Arts.3 & 4 of Prohibition (Enforcement of Hadd) Order, 1979 by Sessions Judge, but before any substantial step could be taken in the trial, Sessions Judge framed another charge-sheet, purportedly, against accused in his capacity as Special Judge Narcotics under S.9 of Control of Narcotic Substances Act, 1997---Validity---Charge-sheet framed under S.9 of Control 'of Narcotic Substances Act, 1997 related to an offence that allegedly took place long before enforcement of said Act and it was wholly illegal---Sessions Judge though, ultimately convicted accused under Art.3 of Prohibition (Enforcement of Hadd) Order 1979, but he had mentioned his designation as Special Judge Narcotics---Such a course of action was not permissible in law---Framing of charge-sheet under S.9 of Control of Narcotic Substances Act, 1997, in the fact and circumstances of case, was not curable under S.537, Cr.P.C.---Impugned judgment, in circumstances was not maintainable in law as possibility that accused might have misled in defence due to illegal charge-sheet, could not be excluded---Impugned judgment of Sessions Judge vas set aside and case was remanded to be decided afresh after granting opportunity to accused to lead defence evidence---Trial Court, after hearing parties would pronounce fresh judgment on basis of original charge-sheet framed under Arts.3/4 of Prohibition (Enforcement of Hadd) Order, 1979.

Salahuddin Panhwar for Appellant.

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

Date of hearing: 19th August, 2004.

2005 P Cr. L J 48

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, C.J., Dr. Fida Muhammad Khan and Zafar Pasha Chaudhary, JJ

ASHIQ ALI ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.36/K of 2003 and Murder Reference No.2/K of 2003, decided on 27th May, 2004.

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

----S. 342---Examination of accused---Object---Object of examination of accused was to give him opportunity of explaining the circumstances which were likely to influence mind of Judge in arriving at a conclusion adverse to him---Attention of accused must have been invited to the inculpatory pieces of evidence or circumstances surfaced on record--­Since examination of accused under S.342, Cr.P.C. was not a mere formality, but a necessity so that principle contained in judicial Maxim "Audi Alteram Pattern" was fully complied with, howsoever scanty or weak the prosecution evidence in regard to certain incriminating material might be, it was duty of the Court to seek explanation of accused by confronting him with same---Use of word "shall" in later part of subsection (1) of S.342, Cr.P.C. suggested that the Court while examining accused thereunder was not only bound to question him on material points of the case, but was under legal obligation to confront him with all those pieces of evidence which could tend to criminate him.

Munir Ahmad alias Munni v. The State 2001 SCMR 56; Asif Ali Zardari and another v. The State PLD 2001 SC 568; Din Muhammad v. Crown 1969 SCMR 777; Munawar Ahmed v. The State PLD 1956 SC 300; Abdul Salam v. Crown PLD 1955 FC 129; Abdul Latif v. Crown PLD 1952 FC 113; Abdul Wahab v. Crown PLD 1955 FC 88; Rattan Singh v. State of H.P. AIR 1997 SC 768; Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622; State of Maharashtra v. Sukhdeo Singh 1992 Cr.LJ 3454 (SC); Tanviben Pankaj Kumar Divetia v. State of Gujarat AIR 1997 SC 2193 and Ranjit Mondal v. State of West Bengal 1997 Crl.LJ 1586 ref.

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

----Ss. 302/392---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17---Criminal Procedure Code (V of 1898), S.342---Appreciation of evidence---Examination of accused---Trial Court had not adopted mandatory procedure in the conduct of trial and had failed to question accused on material points of case and thereby inference, adverse to accused were drawn---Judgment passed by Trial Court, was set aside with consent of parties and case was remanded to Trial Court for its decision afresh in accordance with law with direction that accused be re-examined under S.342, Cr.P.C. and confronted with all incriminating circumstances/evidence available on record.

Syed Saeed Hasan Zaidi for Appellant.

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

Date of hearing; 27th May, 2004.

2005 P Cr. L J 57

[Federal Shariat Court]

Before Zafar Pasha Chaudhary, J

LIAQAT---Appellant

Versus

THE STATE---Respondent

J. Cr. Appeal No. 123/I of 2003, decided on 16th February, 2004.

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

----Ss. 10(2) & 16---Appreciation of evidence---Statement of abductee that accused had committed sexual intercourse with her, was 'supported by Medical evidence---Commission of offence of Zina had stood established against accused, but facts and circumstances of case had abundantly reflected that alleged abductee was a consenting party---Age of the girl having been given by Doctor as 18 years, Trial Court, had rightly convicted accused under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Accused was a young man aged about 22 years and alleged abductee why, according to observation of Lady Doctor, was 18 years of age was also adult but, she had not been proceeded against though she was party to the act---Sentence awarded to accused alone under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was excessive and did not commensurate with gravity of offence---Such sentence being severe, was reduced to term of imprisonment already undergone by accused---Accused being pauper, his amount of fine was also reduced accordingly---Complainant had been proved to have accompanied accused of her own free will and consent--­Element of enticement being lacking in the case, conviction of accused under S.16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 could not be sustained and was set aside.

Saleheen Mughal for Appellant.

Fazal-ur-Rehman Rana for the State.

Date of hearing: 16th February, 2004.

2005 P Cr. L J 74

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, C.J. and Saeed-ur-Rehman Farrukh, J

MUHAMMAD AFZAL---Appellant

Versus

THE STATE---Respondent

Crl. Misc. A. No. 17/I of 2004 m Criminal Appeal No. 18/I of 2004, decided on 29th January, 2004.

Criminal Procedure Code (V of 1898)---

----S. 426--- Offence of Zina (Enforcement. of Hudood) Ordinance (VII of 1979), S.12---Penal Code (XLV of 1860), S.377---Suspension of sentence pending appeal---Record through statement of complainant showed that accused had not kidnapped or abducted the complainant, but in order to satisfy their lust had taken complainant to a nearby room in the same vicinity---Medical evidence was also at variance with prosecution version---Ex facie a case for suspension of sentences of accused, had been made out---Operation of impugned judgment was suspended and accused was released on bail.

M. Saliheen Mughal for Applicant

Muhammad Sharif Janjua for the State.

2005 P Cr. L J 81

[Federal Shariut Court]

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

SAEED alias PHULOO---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No.98/Q of 2002, decided on 23rd September, 2003.

Penal Code (XLV of 1860)---

----S. 377---Appreciation of evidence---Reduction of sentence---Trial Court examined two Doctors who had examined accused, victim minor boy, complainant, two other witnesses and Investigating Officer---All said witnesses had supported prosecution case and their evidence appeared to be confidence inspiring---Counsel for accused had submitted that in view of evidence on record, it was not a case of acquittal, but he had submitted that in view of young age of accused, reduction in sentence would be in the interest of justice---State counsel conceded to reduction in sentence---Sentence of fourteen years awarded to accused by Trial Court was reduced to ten years R.I. ---Punishment of fine and benefit of S.382-B, Cr.P.C. was maintained.

Saleheen Mughal for Appellant.

Muhammad Sharif Januja for the State.

Date of hearing: 23rd September, 2003.

2005 P Cr. L J 83

[Federal Shariat Court]

Before Saeed-ur-Rehman Farrukh, J

ALLAH YAR and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 196/I of 2001, decided on 16th September, 2003.

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

----Ss. 10(2), 15, 16 & 19(2)---Penal Code (XLV of 1860), Ss.465/467/468/471/494---Appreciation of evidence---Complainant had claimed to be lawfully wedded husband of female accused, but she in her statement under S.342, Cr.P.C. had denied said marriage with complainant and instead had insisted that she was married to the co-accused---Apart from statement of complainant and alleged Nikah Nama, nothing was on record in the nature of direct evidence to prove prosecution case---Many flaws in prosecution case were highlighted during arguments, but no satisfactory answer was furnished by the complainant---Alleged Nikah Nama showing marriage of complainant with female-accused and witnesses of said Nikah Nama were withheld---Statement of female accused under S.164, Cr.P.C. in which she denied her marriage with complainant, was also withheld by complainant which had given rise to adverse presumption---Report of Expert showing dubbing of alleged Nikah Nama between complainant and female accused as forged, had gone unchallenged---No counter evidence of some other expert was produced by complainant---Burden to prove offence levelled against accused always was heavily on prosecution in .criminal cases and in case doubt would arise qua the evidence on record, its benefit, had to go to accused---Prosecution could not seek conviction by picking holes in the defence evidence/version--­Evidence led by complainant to show that there was no valid Nikah between female accused and her co-accused, was of little consequence--­Sufficiently strong doubt existed in the version/evidence of prosecution regarding marriage of complainant with female accused---Trial Court had erred in holding two accused as guilty of offences of forgery and living adulterous life as no evidence was on record for reaching such conclusion---Prosecution having failed to prove its case beyond doubt, judgment of Trial Court was not maintainable in law---Setting aside judgment of Trial Court accused were acquitted of the charges against them.

(b) Criminal Trial---

----Burden of proof---Burden to prove offence levelling against accused always lay heavily on prosecution in criminal case and in case doubt arose qua evidence on record, its benefit, per force had to go to the accused.

Malik Rab Nawaz Noon for Appellants.

M. Hamid Ullah Khan for the Complainant.

Fazal-ur-Rehman Rana for the State.

Date of hearing: 12th September, 2003.

2005 P Cr. L J 93

[Federal Shariat Court]

Before Saeed-ur-Rehman Farrukh, J

GHAFOOR---Appellant

Versus

THE STATE---Respondent

Jail Crl. Appeal No. 158/I of 2003, decided on 29th January, 2004.

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

----S. 10(2)---Penal Code (XLV of 1860), Ss.337-A(ii)/337-F(i)/452---Appreciation of evidence---Record established through unimpeachable evidence of victim and prosecution witnesses that accused at the dead of night trespassed into the house of victim/complainant and committed Zina-bil-Jabr with her under threat of life and on raising hue and cry, inmates of house of victim woke up and they secured accused when he attacked one person with knife causing injury on his head and managed to make good his escape---Plea taken by the accused in his statement under S.342, Cr.P.C. that he had been involved due to enmity and that victim/complainant used to extort money from him, was nothing but sheer concoction as no proof of said plea was on record---No previous enmity existed between parties which could have provided motive for false implication of accused---Accused, in circumstances had rightly been convicted by Trial Court ---Co-accused had rightly been acquitted as no incriminating material was on record to connect them with the crime---Sentence awarded to accused, being harsh, in view of facts and circumstances of the case, maintaining conviction of accused, same was reduced to that already undergone by him---Sentences awarded to accused under other offences were also reduced accordingly and he was held liable to pay amount of Arsh in terms of S.337-A(ii), P.P.C.

M. Saliheen Mughal for Appellant.

Ch. Muhammad Rafaqat Ali for the State.

Date of hearing: 29th January, 2004.

2005 P Cr. L J 97

[Federal Shariat Court]

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

ASGHAR alias ASGHARI---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No.80/I of 2004, decided on 20th May, 2004.

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

^----Ss. 377, 363 & 511---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Appreciation of evidence---Delay of about 24 hours in lodging F.I.R. had been explained ---Co-accused was acquitted of the charge not because the statements of prosecution witnesses were found false, but for the reason that he having not actually participated-in crime and his presence, at the spot; being doubtful, his case was found clearly distinguishable by Trial Court---Since reasons weighed with Trial Court in acquitting co-accused were cogent and sound and case of accused was altogether on different footings, contention of accused that he too could not have been convicted, was repelled--­Solitary statement of victim had fully been corroborated by medical evidence---Conviction could be based on solitary statement of victim if otherwise it was confidence inspiring because in cases of Zina and sodomy occurrence was hardly seen by any person---Place wherefrom abductee for the purpose of sodomy was forcibly taken to place of occurrence was situated at a distance of more than one kilometer, case of accused squarely fell within the ambit of S.363, P.P.C.---Contention of accused that his conviction under S.12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was not maintainable, was repelled--Victim had unequivocally charged accused for his abduction---Even otherwise symptoms on body of victim, especially on his private parts, had proved on record that victim was subjected to sodomy---Veracity of statement of victim being not at stake, in absence of any enmity or motive to falsely implicate accused in crime, accused was rightly convicted by Trial Court---Accused being first offender and bread earner of his poor family, his conviction under S.12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was maintained, but his sentence of twenty five years' R.I. was reduced to ten years' R.I. accordingly.

Muhammad Abbas and another v. The State PLD 2003 SC 863; Rana Shahbaz Ahmad and 2 others v. The State 2002 SCMR 303; Shahzad alias Shaddu and others v. the State 2002 SCMR 1009; Mst. Nasreen v. Fayaz Khan and others PLD 1991 SC 412; Muhammad Akram v. The State PLD 1989 SC 742; Muhammad Ashraf v. The State 2000 SCMR 741; Muhammad Akhtar Ali v. The State 2000 SCMR 727; Saeed Akhtar. v. The State 2000 SCMR 383; Muhammad Ahmad and another v. The State 1997 SC MR 89; Ziaullah v. The State 1993 SCMR 155; Zar Bahadur v. the State 1978 SCMR 136; The State v. Mushtaq Ahmad PLD 1973 SCMR 418; Allah Yar v. Crown PLD 1952 Federal Shariat Court 148; Malik Khan v. King Emperor 721 A 305 Privy Council; Shams Saeed Ahmad Khan v. Shafaullah and another 1985 SCMR 1822 and Muhammad Akhtar v. Muhammad Shafique 1986 SCMR 533 ref.

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

----Ss. 377, 363 & 511---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Appreciation of evidence---Statement of solitary witness---Not the number of witnesses, but quality and credibility of evidence was to be considered---Though, at times, keeping in view the principle of "safe administration of justice", the statement of a solitary witness was not considered enough to base conviction thereon, but generally where a witness was found completely independent and wholly reliable, his testimony, ipso facto, was believed and corroboration thereof was sought for as a matter of prudence only.

Gulistan and others v. The State 1995 SCMR 1789; Allah Bakhsh v. Shamsi and another PLD 1980 SC 225; Bacha Said v. The State PLD 1978 SC 102; Ramzan and another v. The State 1973 SCMR 245; Muhammad Khari v. Ahmad and 2 others 1972, SCMR 620; Shah Wali v. Crown 1971 SCMR 273; Muhammad Ashraf v. The State 1971 SCMR 530; Muhammad Siddique alias Ashraf and 3 others v. The State 1971 SCMR 659; Mali v. The State 1969 SCMR 76; Ali Ahmad alias Ali Ahmad Mia v. The State PLD 1962 SC 102 and Shabbir alias Kaku and 2 others v. The State 2004 PCr.LJ 1039 ref.

Bilal Saeed for Appellant.

Shafqat Munir Malik, Asstt. A.-G. for the State.

Date of hearing: 20th May, 2004.

2005 P Cr. L J 107

[Federal Shariat Court]

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

MUHAMMAD JEHANGIR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.304/I of 2002, decided on 20th April, 2004.

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

----Ss. 10, 11 & 16---Appreciation of evidence---Prosecution version that the girl had been abducted forcibly, was falsified, rather nullified by relevant attending circumstances---Allegation that the alleged abductee would have been taken out to the fields at odd hours of night and she did not suspect any foul play did not appeal to reason---No resistance or even hesitation was shown by the alleged abductee---Girl was taken from place to place in cars and railway train arid also was kept in the hotel, etc., but during all that period despite opportunities she neither resisted nor raised any hue and cry in order to save herself from clutches of the accused, especially when accused was not carrying weapon with him all the time in front of public eyes---Alleged abductee did not demonstrate her unwillingness or helplessness when she was allegedly made to thumb­mark various papers and documents---Conduct of the girl and behaviour throughout the course of incident, had shown that she remained the willing partner and she had not come forward with the whole truth--­Statement and evidence of alleged abductee, had to be accepted with great care and circumspection---Alleged abductee had stated that she was 13/14 years of age at the time of her abduction, but medical evidence had left no doubt to infer that she had attained puberty---Girl was quite grown up and was not such a young girl or minor who would be unable to contribute to the commission of offence ---Alleged abductee though was not proved to have been abducted forcibly, but she being a young girl was not mature enough to understand the consequences of her act--­Element of enticing her away by accused, in circumstances could not be held to be non-existent---Offence committed by accused was more appropriately covered by S. 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 rather than under S. 11 of said Ordinance--­Conviction of accused was accordingly altered to one under S. 16 instead of S.11 of the Ordinance---Alleged abductee, according to Clinical Examination, had been subjected to sexual intercourse---Appellant claimed that alleged abductee was his wife, but he could not prove the same by producing any document or other reliable evidence on record--­Mere verbal assertion in absence of necessary supporting document, plea of accused that alleged abductee was his wedded wife, could not be accepted---Alleged abductee being a consenting party, for safe administration of justice, conviction of accused was recorded under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 instead of S. 10(3) of the Ordinance---Accused was sentenced to suffer five years R.I. under S. 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and seven years R.I. under S. 10(2) of said Ordinance.

Ajmal Khan Mirza for Appellant.

Syed Muzahir Naqvi for the State.

Date of hearing; 20th April, 2004.

2005 P Cr. L J 113

[Federal Shariat Court]

Before Saeed-ur-Rehman Farrukh, J

MUHAMMAD SHARIF---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No.28-I of 2004, decided on 2nd June, 2004.

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

----Ss. 10(3) & 16---Appreciation of evidence---Complainant had admitted that complaint was drafted by a clerk of an Advocate---Delay of two days in lodging complaint was not satisfactorily explained--­Investigating Officer had conceded that co-accused were found innocent and his investigation was verified- by D.S.P. also---By the fact that three accused were found innocent and were acquitted, prosecution story had suffered irreparable loss of credibility---Alleged victim stood exposed as liar as in her statement under S.164, Cr.P.C., she had implicated acquitted co-accused alongwith accused and said version of occurrence was disbelieved by Trial Court---No reliance could be placed on her testimony in circumstances---Accused though was son-in-law of the complainant, but complainant could not pocket humiliation and disgrace suffered by him in the village community as without the help of accused alleged victim could not have succeeded in approaching the Court to get divorce from her husband who was a crippled man and alleged victim did not like the marital union---Seemed highly improbable that accused would have abducted his sister-in-law, take her to places and commit Zina with her ---Wajtakar evidence of prosecution witness was nothing, but vain attempt on the part of prosecution to bolster up its case against accused--­Prosecution having failed to prove its case against accused beyond doubt; judgment of Trial Court passed against accused was set aside and he was acquitted of charge against him.

Saliheen Mughal for Appellant.

Fazal-ur-Rehman Rana for the State.

Date of hearing: 2nd June, 2004.

2005 P Cr. L J 123

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, C.J. and Saeed-ur-Rehman Farrukh, J

MUHAMMAD ASHRAF alias NAIK MUHAMMAD Appellant

V0ersus

THE STATE -Respondent

Jail Cr. Appeal No. 133-I of 2003, decided on 20th October, 2004.

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

----S. 302(b)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)---Appreciation of evidence---Only incriminating piece of evidence against accused was statement of a witness who deposed that accused while in custody appeared before him and Lamberdar (not produced) and made extra judicial confession about murdering a woman after committing Zina with her---Said witness had made considerable improvements upon his statement before Police---Said witness who was an ordinary agriculturist and was not a person holding a position of authority, had conceded that accused was not his co-villager---It seemed highly improbable that accused would go to a stranger living in another village and make confession regarding alleged crime and that too without ascertaining as to whether he was in a position to render him any help in seeking pardon from legal heirs of deceased---Prosecution withheld said Lamberdar though according to witness confession was made by accused before him in his parlour---Legal presumption, due to non-production of Lamberdar would be that had he been produced in Court he would not have supported prosecution version---Accused at time he allegedly made confession was not a free person to make extra judicial confession as he was brought to parlour while he was in custody---No reliance in circumstances could be placed on incriminating statement of said witness for convicting accused---Extra judicial confession, ascribed to accused was nothing, but a crude attempt, on part of police to create false evidence so as to foist case upon accused---No other evidence/material was on record to connect accused with the crime---Conviction and sentences recorded against accused were set aside and he was acquitted of charge against him and was ordered to be released.

(b) Qanun-e-Shahadat (10 of 1384)---

----Arts. 37 & 39---Extra judicial confession---Extra judicial confession made before a person not known to the alleged confessor who was neither a Lamberdar nor a BD member and was not in a position to help accused, could not be relied upon for convicting him---Extra judicial confession at the best was a weak piece of evidence and in order to form sole basis of conviction, it must be supported by exceptional circumstances to create a belief that same was really made and was true---Extra judicial confession must be received with utmost caution.

Gul Muhammad v. The State PLD 1958 (W.P.) Kar. 133; Abdul Latif v. The Crown PLD 1952 FC 113; Ahmed v. The Crown PLD 1951 FC 107 and Allah Ditta v. The State 1977 SCMR 251 ref.

Muhammad Akram Gondal for Appellant.

Ch. Rafaqat Ali for the State.

Date of hearing: 20th October, 2004.

2005 P Cr. L J 129

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan and Saeed-ur-Rehman Farrukh, JJ

KAMRAN KHAN and another---Appellants

Versus

THE STATE---Respondent

Crl. Appeal No.45-P of 2002, decided on 26th October, 2004.

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

----Ss. 302(b) & 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Appreciation of evidence---Remand of case---Four prosecution witnesses whose statements were recorded under S.164, Cr.P.C. before Magistrate were not examined by prosecution in trial---Whatever the worth of their deposition during the trial and its effect on the ultimate outcome of the case, one could not shut one's eyes to such important development which took place during the course of investigation---Legal obligation of prosecution was to put statements of said four witnesses and thereafter Trial Court should have allowed defence to cross-examine them with reference to same, but that having not been done, trial stood vitiated---Trial of case having not been conducted in a lawful manner, judgment passed against accused was not maintainable---Impugned judgment was set aside and case stood remitted to Trial Court with direction to record statements of said four witnesses---Prosecution would be obliged to put statements of those witnesses recorded by Illaqa Judicial Magistrate under S.164, Cr.P.C. to them with liberty to accused to cross-examine them qua same and Trial Court thereafter would pronounce fresh judgment on basis of evidence/material brought on record.

(b) Islamic Jurisprudence---

----Crime and punishment---Under Islamic System of dispensation of justice in a criminal trial, the prosecution was required to produce all the evidence collected by it during the course of investigation before Trial Court for determination of the guilt or otherwise of accused---Prosecution could not be permitted to skip over/withhold any material piece of evidence and ask Trial Court to pronounce its judgment in the case, which would be against a course of action mandated by Holy Qur'an and Sunnah.

Muhammad Ijaz Khan for Appellant.

Muhammad Ali Saif for the State.

Date of hearing: 26th October, 2004.

2005 P Cr. L J 138

[Federal Shariat Court]

Before Zafar Pasha Chaudhary, J

KASHIF IKRAM --- Appellant

Versus

THE STATE---Respondent

J. Criminal Appeal No.235/I of 2004, decided on 25th October, 2004.

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

----S. 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Appreciation of evidence---Victim boy was subjected to fairly long cross-examination, but he could not be detracted from his statement and nothing could be extracted to damage prosecution case--­Complainant, who was father of victim boy, was examined, he reiterated contents of application made by him to S.H.O., but at the end of his examination-in-chief he stated that accused present in the Court had not committed unnatural offence with his son---Complainant was got declared hostile and was subjected to cross-examination---Statement of complainant did not lose its significance and relevancy---Complainant during his cross-examination had admitted having apprehended accused and also that he had complained that accused had committed sodomy with his son---Accused appeared to have put some pressure on complainant and had tried to extract concession but such concession was not of any help to accused as complainant being not an eye-witness, his stance in the Court that accused had not committed unnatural offence, could not be regarded as damaging to prosecution---Victim boy had made consistent and coherent statement and his evidence was very convincing and it fully inspired confidence---Victim boy or any one of his family had no motive or any reason to falsely implicate accused---Statement of victim boy was supported by Medical evidence---Non-detection of semen on anal swabs would not in any manner belie statement of victim especially when his medical examination was conducted after about- 6 days of occurrence---Prosecution having successfully proved charge against accused, he was rightly convicted and sentenced---Punishment imposed on accused was not excessive, but was fully commensurate with gravity of offence---Sentence recorded against accused was maintained.

(b) Criminal trial---

----Evidence---To weigh and assess an evidence, the entire statement comprising of examination-in-chief and cross-examination, had to be taken into account.

(c) Administration of justice---

---- Courts were not mere spectators rather were expected to consider and examine all relevant and pertinent pieces of evidence in order to arrive at just conclusion.

Nadeem Mukhtar Chaudhry for Appellant.

Shafqat Munir Malik, Asstt. A.-G. for the State.

Date of hearing; 25th October, 2004.

2005 P Cr. L J 149

[Federal Shariat Court]

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

ABDUL REHMAN alias NIKKA and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.255-I and Criminal Revision No.31/I of 2003, decided on 31st March, 2004.

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

----Ss. 11 & 18---Penal Code (XLV of 1860), S.354---Appreciation of evidence---Outraging the modesty of girls---Prosecution case stood proved beyond doubt through testimony of two female witnesses who had given consistent account of the occurrence and their testimony had the ring of truth---Minor discrepancies/omissions in statements of said witnesses and their statement given before police, were inconsequential--­Alleged delay in F.I.R., by itself did not constitute sufficient ground :o discredit prosecution version---In view of social values in the society, particularly in the rural areas, in such-like cases, parents hesitate to straightaway rush to the police and get a case registered---In almost every case accused party tries to prevail upon the complainant side to agree to compromise---Evidence in the present case, was about such attempt as deposed by complainant, father of victim, which could not fructify for one reason or the other---Objection of accused in that respect was repelled---Sister of complainant was married to one of real brothers of accused who left house of her husband and was living with family of complainant and was divorced after occurrence---Present case could not be said to have foisted upon accused to secure divorce for sister of complainant who was paternal aunt of victim as a father would not like his younger daughter to be embroiled in such-like litigation which was definitely going to cause ignominy to her for rest of her life besides lowering the family as a whole in the estimation of village community--­Prosecution, in circumstances of case had failed to prove commission of offence under Ss. 11 & 18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Evidence on record had revealed that accused were successful in outraging the modesty of victim as they caught hold of her and dragged her for some distance---Accused, in circumstances had committed offence under S.354, P.P.C.---After- setting aside their conviction under Ss.11 & 18 of Offence of Zina (Enforcement of Hudood) Ordinance 1979, they were convicted under S.354, P.P.C.---In view of role played by accused, particularly that they had faced protracted litigation and remained incarcerated in jail for about 2-1/2 months, sentence already undergone by accused would be sufficient, in the interest of justice, for the offence under S.354, P.P.C.---Order accordingly.

Awan Muhammad Hanif Khan for Appellants.

Saliheen Mughal for the Complainant.

Fazal-ur-Rehman Rana for the State.

Date of hearing: 31st March, 2004.

2005 P Cr. L J 158

[Federal Shariat Court]

Before Zafar Pasha Chaudhary, J

MUHAMMAD SABIR---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No.268/I of 2004, decided on 28th October, 2004.

Penal Code (XLV of 1860)---

----S. 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Appreciation of evidence---Prosecution evidence mainly comprising of the victim supported by medical evidence and. supplemented by Chemical Examiner's Report, had proved beyond doubt that accused did commit offence of sodomy---Element of commission of offence forcibly or abducting victim against his will being lacking, Trial Court had rightly acquitted accused from charge under S.12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Plea that victim was a willing partner could not be ruled out---Consent of victim in a case of unnatural offence, though was of no consequence vis-a-vis conviction of offender, but same would furnish a mitigating circumstance in favour of accused---Conviction of accused, in view of facts and circumstances did not call for any interference and same was maintained, but sentence imposed by Trial Court on accused was reduced from three years' R.I. to two years R.I.

Aftab Ahmad Khan for Appellant.

Sher Zaman Bhatti for the State.

Date of hearing: 28th October, 2004.

2005 P Cr. L J 167

[Federal Shariat Court]

Before Zafar Pasha Chaudhary, J

Mst. GUL HAMIDA---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No.222/I of 2004, decided on 8th October, 2004.

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

----S. 10(2)---Penal Code (XLV of 1860), S.201---Appreciation of evidence---No witness was produced by prosecution against accused who had witnessed the occurrence or stated that she was consenting party----As regards fact of pregnancy of accused, same had been disclosed by her at the very initiation of proceedings i.e. by lodging F.I.R.---Accused unequivocally stated that she had been subjected to Zina-bil-Jabr by both male accused and on account of same she attained pregnancy---Victim also explained the reasons for not disclosing matter earlier and she quite truthfully explained that on account of fear and shame she could not inform her parents or any other person---Trial Court had proceeded on hypothesis that attaining of pregnancy by any unmarried girl by itself was a conclusive proof that she committed Zina and conceived therefrom---To draw the inference merely from factum of pregnancy would not only be erroneous rather it would be highly unjust and cruel---In absence of any positive evidence merely on the basis of pregnancy it could not be presumed that victim girl was a willing partner---To record conviction under the Ordinance, evidence of an unimpeachable character was required---Islamic law recognized the principle that an accused would be presumed to be innocent unless proved guilty through testimony of credible witnesses or reliable evidence---To convict a person and that too a female was highly violative and contrary to the principles of Islamic jurisprudence and it appeared rather paradoxical that two male accused had been acquitted for lack of evidence, but on the same set of evidence accused, who being female, was entitled to more care and caution, had been convicted---Conviction of accused being not maintainable, at all was set aside and she was acquitted of the charge.

Muhammad Tariq v. The State PLD 1982 FSC 113 and Muhammad Ashraf v. The State 1997 PCr.LJ 1351 ref.

(b) Criminal trial---

---- Appreciation of evidence---Circumstantial evidence---No doubt conviction could be based on strength of circumstantial evidence, but circumstances should be of such a nature which were unexceptionable and which led to no other inference or hypothesis except the guilt of accused and commission of offence---Presumption, however strong could be, same could not be treated as a substitute of evidence.

(c) Evidence---

---- Presumption---Presumption, however strong could not be treated a substitute of evidence.

Saliheen Mughal for Appellant.

Aftab Ahmad Khan for the State.

Date of hearing: 8th October, 2004.

2005 P Cr. L J 182

[Federal Shariat Court]

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

ABDUL HAKEEM and another---Appellants

Versus

THE STATE---Respondent

Jail Criminal Appeal No. 163/I of 2004, decided on 4th October, 2004.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S.537---Conviction under S.302(b), P.P.C. without framing charge under the said section--­Effect---Offence under S.302(b), P,P.C. was more grave than the offence of robbery or harrabah---Conviction under S.302(b), P.P.C. without framing. a distinct charge thereunder and examining accused on that charge suffered from material illegality, which was not curable by S.53.7, Cr.P.C.---Case was remanded to Trial Court for framing charge afresh accordingly.

1981 SCMR 961 ref.

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

---Ss. 302(b) & 392---Offence Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Appreciation of evidence--­Complainant/prosecution witness was an independent witness and also an employee---He had no reason or any other motive to falsely depose against accused and his oral statement was supported by extremely credible circumstances---Complainant not only had seen accused inflicting injuries on the person of deceased, but he also went forward to rescue deceased---Complainant chased accused along with other witnesses, and succeeded in apprehending accused after a short chase and one of accused person tried to cause injuries on his person---Accused were apprehended practically at the scene of occurrence and dagger was recovered from their possession and robbed motorcycle was also retrieved from them--­Complainant submitted a formal complaint describing incident as witnessed by him and forwarded same to Naib Tehsildar for entering upon investigation---Oral statement of complainant was amply supported by factum of recovery of stolen property i.e. the Motorcycle, apprehension of offenders and also by fact that same was reduced into writing as a complaint on the basis of which final F.I.R. was registered--­Statement of complainant was also supported by other prosecution witnesses who had not any background of enmity or ill-will against either of accused persons---All the four prosecution witnesses made consistent statements and corroborated each other on all material points---Details of incident had been truly furnished by said witnesses---Injuries were caused on the vital parts of the body of deceased such as head, neck and pericardial region which were sufficient to cause death of deceased--­Conviction and sentence awarded to accused by Trial Court under Ss.302(b) & 392, P.P.C. being unexceptionable, were upheld and maintained, in circumstances.

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

----Ss. 302(b) & 392---Appreciation of evidence --- Post-mortem examination-- Post-mortem examination ordinarily was though treated as an authentic and credible evidence regarding cause of death of deceased, but if in remote areas where facility regarding post-mortem examination was not available, it would be unjust to let off all culprits merely due to lack of facility of post-mortem available to prosecution.

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

----Ss. 302(b) & 392---Appreciation of evidence---Benefit of doubt--­Benefit of any doubt or suspicion, no doubt had to go to accused, but if on the basis of evidence and data available with the Court, it could reliably be believed that death was caused as a result of injuries received by the victim, then it would be unjust to deceased and to prosecution to acquit an offender for no fault on the part of prosecution.

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

----S. 302(b)---Qatl-i-Amd---To constitute an offence of Qatl-i-Amd, it was not necessary that injury should be caused with intention to cause death--If somebody inflicted injuries with intention to cause bodily injuries which in ordinary course of nature was likely to cause death or with knowledge that his act was so imminently dangerous that it must result in death, it would be murder---Injuries in the present case were caused on vital parts of the body of victim such as head, neck and pericardial region---When the result of the injuries was assessed objectively then said injuries had in fact resulted in the dearth of deceased---Contention that no intention was to cause death of deceased and that conviction under S.302(b), P.P.C. was not sustainable, had not much force---Intention or knowledge of offence had to be gathered from the object for which injuries were being caused---Purpose or object of accused was to rob motorcycle of deceased and during course of robbery or Harrabah, accused caused such a severe and grave injuries, which ultimately resulted in death of victim.

Miss Ghazala Shereen for Appellants.

M. Shoaib Abbasi for the State.

Date of hearing: 4th October, 2004.

2005 P Cr. L J 193

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, C.J.

RAFIQUE AHMAD alias SHIKA---Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Application 230/I of 2004 in Criminal Appeal No.271/I of 2004, decided on 8th October, 2004.

Criminal Procedure Code (V of 1898)---

‑‑‑‑Ss. 426, 496 & 497‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.4‑‑‑Suspension of sentence and grant of bail pending appeal against conviction and sentence‑‑‑Application for‑‑‑Applicant/accused had contended that since sentence inflicted on him was short i.e. only three years, there being no likelihood of appeal being heard in near future and offence against accused being bailable, he could be released on bail pending disposal of his appeal‑‑‑Validity‑‑‑Bail could not be claimed as of right after conviction, even in cases of bailable offences because upon conviction presumption of innocence attached to accused was substantially dislodged and he was relegated to the status of a `convict'‑‑­Power available under S.426, Cr.P.C. which enabled Court to suspend sentence inflicted on accused pending disposal of their appeals, could not be regulated, rather suspended by provisions of Ss.496 & 497, Cr.P.C.‑‑­Bail to a convicted person was not a matter of right, irrespective of fact that offence for which he had been found guilty, was bailable or non-­bailable‑‑‑Language used in S.426, Cr.P.C. had made it abundantly clear that Legislature wanted the Court of appeal to apply its mind independently to the question of bail‑‑‑Since upon conviction status of an "accused" was altogether changed, while exercising power under S.426, Cr.P.C., basic principle; that judgment of Trial Court, in appeal, was not to be, normally, suspended unless some glaring illegality or patent error was found, had to be kept in mind though while exercising such discretion the person convicted of a bailable offence could be dealt with leniently‑‑‑Bail was granted to accused in view of the fact that he was found guilty under Art.4 of Prohibition (Enforcement of Hadd) Order, 1979 which provided imprisonment of a maximum sentence of two years imprisonment‑‑‑Sentence inflicted on accused otherwise being short and there being no likelihood of appeal being heard in near future, application filed under S.426, Cr.P.C. was allowed and applicant/accused was released on bail.

Hata and others v. The State PLD 1967 Lah. 1302; Shah Hussain v. The State PLD 1995 Kar. 209; Abdul Samad v. The State 1999 SD 432; The State v. Shah Swar 1969 SCMR 151; Khalid Segol v. The State PLD 1962 SC 4.95; Abdul Karim v. The State 1969 SCMR 312; Babar Khan v. The State 1969 SCMR 81; Jamshed Azam v. The State 1990 SCMR 1393; Abdullah Khan v. Karam Dad Khan 1968 SCMR 1064; Maqsud v. Ali Muhammad 1971 SCMR 657; Abdul Ghafoor v. Anwarul Hassan 1978 SCMR 149; Faqir Muhammad v. Akbar 1979 SCMR 270 and Haji Mir Aftab v. The State 1979 SCMR 320 ref.

Malik Riaz Ahmad Khakhi for Applicant.

Shafqat Munir Malik, Asstt. A.‑G. for the State.

2005 P Cr. L J 200

[Federal Shariat Court]

Before S.A. Manan, J

MUKHTAR AHMAD alias TARA and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Jail Criminal Appeal No.219/I of 2004, decided on 30th September, 2004.

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

‑‑‑‑S. 10(2)‑‑‑Appreciation of evidence‑‑‑Complainant who was husband of female accused had alleged in F.I.R. that he found both accused committing Zina‑bil‑Raza‑‑‑ Complainant had admitted that he had strained relations with his wife/female accused for the last 8 years and that he told her many times to refrain from relationship with the male accused‑‑‑Relations between complainant and female accused were such that they could not reside under one roof‑‑‑After considering entire evidence on record it appeared that allegations of complainant against both accused seemed to be correct‑‑‑In view of allegations and counter allegations both complainant and his wife/female accused were to blame‑‑‑During arguments a question was debated to make co­-accused/male‑accused responsible for the whole disaster, but female accused could not be completely absolved of her relations with her paramour‑‑‑Trial Court believed evidence of complainant and thereafter convicted and sentenced both accused‑‑‑Conviction of female accused was maintained in view of the facts and circumstances of case, but her sentence was reduced to having already undergone and conviction and sentence' awarded to co‑accused/male accused by Trial Court were maintained.

M. Javed Aziz Sandhu for Appellants.

Shafqat Munir Malik, Asstt. A.‑G. for the State.

Date of hearing: 30th September, 2004.

2005 P Cr. L J 219

[Federal Shariat Court]

Before Zafar Pasha Chaudhary, J

Mst. NISA BEGUM and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Jail Criminal Appeals Nos.92/I of 2004 (L.W.) 195/I of 2004, decided on 16th September, 2004.

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

‑‑‑‑Ss. 10/16‑‑‑Penal Code (XLV of 1860), S.109‑‑‑Appreciation of evidence‑‑‑Both male and female accused had contended that female accused was given in marriage to another person in exchange of marriage of her brother/complainant with niece of said other person and when niece of said other person was divorced by complainant/brother of female accused, said other person in reaction, turned out the female accused out of his house and thereafter he divorced her‑‑‑Later on complainant who was brother of female accused married sister of male accused and in lieu of that complainant got married female accused to male accused‑‑‑Both accused claimed that they were enjoying peaceful matrimonial life, but due to some internal dispute, complainant at the instant of father of both complainant and female accused had falsely involved accused in the present case‑‑‑Claim of accused appeared to be genuine and bona fide in view of the fact that marriages between families of parties were ordinarily organized as exchange marriages‑‑‑Both male and female accused being sui juris having admitted that they were married to each other and their assertion not appearing to be mere excuse, same had to be accepted unless there was any cogent and reliable material available to negate their assertion‑‑‑Claim of accused being genuine and bona fide, benefit of doubt was to be extended to them‑‑‑Valid circumstances were available in the present case to show that accused persons got married to each other‑‑‑No question was of commission of any Zina or adultery‑‑­Conviction of accused under S.10 or 16 of Offence of Zina (Enforcement of Hudood), 1979, could not be maintained‑‑‑Conviction and sentence awarded to accused by Trial Court were set aside and they were acquitted of charges.

M. Aslam Uns for Appellants.

Sher Zaman Bhatti for the State.

Date of hearing: 16th September, 2004.

2005 P Cr. L J 261

[Federal Shariat Court]

Before Saeed‑ur‑Rehman Farrukh, J

MUHAMMAD SALEEM‑‑‑Petitioner

Versus

ZAFAR WARAICH and 7 others‑‑‑Respondents

Criminal Revision No. 17‑K of 2000, decided on 23rd August, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 200, 202, 190(2), 435, 439 & 537‑‑‑Penal Code (XLV of 1860), Ss.427/504/506‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)‑‑‑Complaint case‑‑‑Dismissal of complaint‑‑‑Complaint was filed by complainant before Judicial Magistrate, but same was forwarded by Magistrate to Sessions Judge as Offence under S.17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was exclusively triable by Sessions Court‑‑­Additional Sessions Judge to whom complaint was entrusted by Sessions Judge, proceeded to record statement of complainant under S.200, Cr.P.C. and sent complaint back to Judicial Magistrate for further inquiry who, after conducting some proceedings, placed matter before Additional Sessions Judge who passed an order directing accused in complaint case to appear before him and "assign reasons" as to why complaint filed by complainant against them should not be brought on record and registered against them‑‑‑Said accused appeared and filed their objections in writing and ultimately complaint was dismissed by Additional Sessions Judge‑‑‑Validity‑‑‑Under provisions of S.202, Cr.P.C. Trial Court (Additional Sessions Judge) till such time it was satisfied with the result of inquiry conducted by Judicial Magistrate, could not have summoned accused to appear before him in any capacity whatsoever and it was wholly illegal on part of Additional Sessions Judge to call upon respondent/alleged accused during course of inquiry under S.202, Cr.P.C. to join proceedings so as to provide them an opportunity to raise objections qua the complaint in which they were arrayed as accused‑‑‑Mode of disposal of case adopted by Additional Sessions Judge would amount to mini trial which was not contemplated/permitted bylaw‑‑‑Impugned order was not sustainable in law and could not be termed to be mere illegality curable under S.537, Cr.P.C.‑‑‑Accepting revisions impugned order was set aside and complaint of petitioner/complainant was to be deemed pending as Trial Judge had already held inquiry under S.202, Cr.P.C., he would take note of same and after excluding from consideration the objections filed by respondents/alleged accused, would pass, speaking order as to whether or not respondents were to be summoned as accused or not.

Mst. Fatima Bibi's case 1988 PCr.LJ 864 and Riaz Ahmad's case 1995 PCr.LJ 14 ref.

Imam Bakhsh Baloch for Petitioner.

Amir Malik for Respondents.

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

Date of hearing: 23rd August, 2004.

2005 P Cr. L J 355

[Federal Shariat Court]

Before Zafar Pasha Chaudhary, J

MUHAMMAD ANWAR ‑‑‑Appellant

Versus

THE STATE--‑Respondent

Crl. Appeal No. 171/L of 2004, decided on 30th September, 2004.

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

‑‑‑‑Ss. 10(3)/18‑‑‑Appreciation of evidence‑‑‑Accused had alleged that the charge framed was defective which had caused a material prejudice to him‑‑‑Accused had contended that charge had, been framed under S.18 of offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with S.10(3) thereof and offence under S.10(3) was more grave in nature and punishment prescribed thereunder was two times as under S.18 read with S:10(3) for which accused had no previous notice‑‑‑Validity‑‑‑Without even demonstrating any prejudice, accused was entitled for retrial‑‑­Impugned order was set aside and case was remitted to Trial Court for framing of proper charge and thereafter proceeding with the trial according to law.

Parvez Inayat Malik for Appellant.

Ishtiaq Ahmad Minhas for the State.

Date of hearing: 30th September, 2004.

2005 P Cr. L J 359

[Federal Shariat Court]

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

HAMEED MASIH‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Jail/Criminal Appeal No. 172/I of 2002, decided on 12th June, 2003.

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

‑‑‑‑Ss. 10/11/16‑‑‑Appreciation of evidence‑‑‑Element of abduction its well as commission of illicit intercourse with victim by accused had been established by prosecution through reliable evidence‑‑‑Statement of victim that she was subjected to sexual intercourse had been proved through medical evidence and report of Chemical Examiner‑‑‑Victim/abductee was proved to have remained in custody and clutches of accused‑‑­Prosecution witness or victim girl had no reason or motive to falsely implicate accused especially when he happened to be their relative‑‑­Prosecution had discharged its onus in bringing home the guilt to accused‑‑‑Facts and circumstances of the case undoubtedly having attracted S.16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, conviction of accused under S.11 of said Ordinance, was set aside‑‑‑Victim having remained with accused for considerable period, possibility that victim was a consenting party to sexual intercourse, could not be ruled out‑‑‑Benefit of doubt even in interpreting of charging section had to be extended to accused‑‑‑Conviction of accused was recorded under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and he was sentenced accordingly.

Saliheen Mughal for Appellant.

Fazal‑ul‑Rehman for the State.

Date of hearing: 12th June, 2003.

2005 P Cr. L J 384

[Federal Shariat Court]

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

SHER MUHAMMAD alias SHAIRA and 2 others‑‑‑Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.56/I of 2003 L.W. Jail Criminal Appeal No.58/I of 2003 L.W. Criminal Murder Reference No. 10/I of 2003, decided on 6th October, 2004.

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

‑‑‑‑S. 10(4)‑‑‑Penal Code (XLV of 1860), Ss.452 & 458‑‑‑Criminal Procedure Code (V of 1898), Ss.200, 202 & 540‑A‑‑‑Appreciation of evidence‑‑‑Filing of complaint case pending challan case‑‑‑Examination of witnesses‑‑‑Earlier, on report of complainant, police recorded F.I.R. under S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with S.452, P.P.C., but since local police was not prepared to redress the grievance of complainant, she was constrained to file complaint case‑‑‑Said complaint was sent to Judicial Magistrate for inquiry under S.202, Cr.P.C. and on receiving report from Judicial Magistrate, Trial Court summoned accused to face trial under S.10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and S.458, P.P.C. and stayed the proceedings in earlier challan case‑‑‑Complainant, at the trial after producing two witnesses and after getting herself examined as prosecution witness, closed prosecution evidence‑‑‑Trial Court after hearing parties convicted and sentenced accused‑‑‑In challan case which was stayed, names of nine witnesses including three examined by complainant at trial in complaint case, were given in the Schedule, but none of them were called and examined by Trial Court after close of evidence of complainant‑‑‑Complainant though was at liberty to examine as many witnesses of her choice as were deemed appropriate, to substantiate the charge, but since challan case with regard to same incident was also pending before the Court and proceedings therein were stayed by Trial Court, it was necessary that case should have been decided after consideration of whole/entire material relied upon by parties‑‑‑After close of prosecution evidence by complainant in complaint case, witnesses mentioned in challan case should have also been examined under S.540‑A, Cr.P.C., if they were not already examined by complainant‑‑‑Judgment passed by Trial Court was set aside and case with consent of parties was remanded to Trial Court for its decision afresh in accordance with law after summoning and examining witnesses whose names were mentioned in challan case, but were not examined.

Ali and others v. The Crown PLD 1954 Lah. 183; Noor Ahmad v. The State and Rahim Bakhsh v. The State PLD 1964 SC 120; Mst. Naziran v. Saifal and others 1998 PCr.LJ 1689 and Mst. Kausar Shaheen v. Said Rasool and 3 others 2001 PCr.LJ 244 ref.

Ch. Zahoor Hussain for Appellants (in Criminal Appeal No.56/I of 2003).

Fazal‑ur‑Rehman Rana for Appellant (in Criminal Appeal No.58/I of 2003).

Anis M. Shahzad for the State.

Date of hearing: 6th October, 2004.

2005 P Cr. L J 397

[Federal Shariat Court]

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

GHULAM RASOOL and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.144/I of 2003 L. W. and Jail Criminal Appeal No. 132/I of 2003, decided on 4th December, 2003.

(a) Criminal trial—

----Appreciation of evidence‑‑‑Defer evidence‑‑‑Consideration of‑‑‑Duty of Court‑‑‑Court while deciding a case at trial, must evaluate prosecution evidence and see as to whether it had the capacity to bring home charge against accused and if answer was in the affirmative, only then plea of accused along with defence evidence, if any, could be weighed so as to reach at a definite conclusion‑‑‑Perusal of defence plea/evidence could eventuate in convincing the Court of innocence of accused or it could cause the Court to doubt in which case accused would be entitled to acquittal or it could at some time strengthen the case for prosecution‑‑­Unless presumption of innocence imputed to accused was thrown out by the force of evidence produced by prosecution at the trial, defence evidence was not required to be looked into‑‑‑Court was required to come to a conclusion on the whole of evidence led before it and not on plea of accused alone and that exercise had to be done systematically.

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

‑‑‑S. 11‑‑‑Appreciation of evidence‑‑‑Alleged abductee/victim who, was star witness of crime had not been produced at the trial and no evidence was led to prove that alleged abductee was forcibly taken away or subjected to Zina‑bil‑Jabr‑‑‑ Alleged abductee was murdered after registration of case and her recovery, but record was silent as to when her murder took place and for what reason or as to who was responsible for her murder‑‑‑Statement of victim in cases of Zina, particularly of Zina‑bil‑Jabr, was of immense importance and of great evidentiary value because in such cases, other evidence being merely corroborative, conviction in practice, almost entirely would depend on her statement and credibility, so far as essential ingredients were concerned‑‑‑Trial Court though had not bothered to assess or evaluate prosecution evidence to see as to whether it was sufficient to have conviction thereon, but a photostat copy of statement of alleged abductee was placed on record by prosecution to prove the charge, which was of no help to prosecution‑‑­Testimony of rest of witnesses was purely of confirmatory and corroboratory in nature‑‑‑Unless substantive or direct evidence was available, conviction of accused could not be based on any other type of evidence, howsoever convincing it might be‑‑‑Occurrence, in the present case, had not taken place in the manner as suggested by prosecution‑‑‑Prosecution had failed to produce confirmatory evidence‑‑­There being room of doubt, benefit of such doubt must go to accused‑‑‑Conviction and sentences recorded against accused by Trial Court were set aside and they were acquitted and released, in circumstances.

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. The State of Mysor AIR 1956 Mys. 40; Bharadqaj Singh v. State AIR 1952 Cal. 616; Zahoor Ahmad v. The State 1995 SCMR 1338: Mamand and another v. Emperor AIR (33) 1946 PC; Nisar Muhammad v. Khanzali and another PLD 1959 (W.P.) Pesh. 115; Mahomed Khan and another v. Emperor AIR 1930 Sind 308; Salehon v. The State 1971 PCr.LJ 224; Abdul Ghani v. The State PLD 1963 (W.P.) Lah. (?) Muhammad Noor v. Member‑I, Board of Revenue, Balochistan and others 1991 SCMR 463 and Qalb‑e‑Abbas alias Nehola v. The State 1997 SCMR 290 ref.

Abdul Karim Khan Kundi and Nadeem Mukhtar Chaudhary, for Appellants.

Muhammad Sharif Janjua for the State.

Date of hearing: 4th December, 2003.

2005 P Cr. L J 407

[Federal Shariat Court]

Before S. A. Rabbani, J

FAISAL IJAZ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Jail Criminal Appeal No. 311‑I of 2004, decided 13th December, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 377‑‑‑Appreciation of evidence‑‑‑Evidence placed on record proved that an attempt of sodomy was committed by accused upon the victim boy‑‑‑Charge of commission of sodomy, as an offence completed, was not proved‑‑‑Case being of an attempt conviction and sentence awarded to accused by Trial Court, were set aside‑‑‑Since accused was a young man, aged about 24 years and nothing was on record to show that he had a past criminal history, a lenient view was justifiable‑‑‑Accused was sentenced to one year's rigorous imprisonment, with fine of Rs.5,000.

M. Shoaib Abbasi for Appellant.

Nadeem Mukhtar Chaudhry for the State.

Date of hearing: 13th December, 2004.

2005 P Cr. L J 426

[Federal Shariat Court]

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

BASHIR AHMAD alias SHERO‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Jail Criminal Appeal No.204/I of 2004, decided on 7th December, 2004.

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

‑‑‑‑S. 16‑‑‑Appreciation of evidence‑‑‑Story as put forth by alleged abductee was wholly incredible and could not be relied upon‑‑‑Record showed that complainant was a person of dubious character and that all accused persons had falsely been involved in the case‑‑‑Trial Court had unequivocally held in its impugned judgment that no case of Zina was made out and all accused had been acquitted from the charge under S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979‑‑­No justification existed, in circumstances for the Trial Court to have believed the story of alleged abductee that she was taken to various places‑‑‑No evidence was available to hold that anyone of accused had committed any intercourse or they were willing to do so and it was amply demonstrated that alleged abductee was neither taken away nor enticed for the purpose for which accused had been punished‑‑‑Two co-­accused had been sentenced for facilitating the commission of offence by accused, but Trial Court had failed to apply its mind as to how said co­-accused were interested in facilitating commission of offence‑‑‑Two accused had been acquitted of the charges by giving them the benefit of doubt‑‑‑Impugned judgment of Trial Court suffered from major contradictions and no basis was to convict accused‑‑‑One of accused aged about 68 years, who was brother of accused, was owner of Ihata where complainant and his family were accommodated' by said owner on sympathetic grounds, but they hit back their own benefactor‑‑‑Both complainant and his alleged abducted wife had concealed the facts of the case‑‑‑Complainant had already recorded two similar F.I.Rs. in which alleged accused were acquitted, which Pad shown that complainant was a liar of highest order‑‑‑F.I.R. was got registered by complainant after lapes of about seven months and no reasonable explanation was given of said delay‑‑‑Fact that complainant in connivance with his wife was involving innocent people in criminal case was proved‑‑‑Impugned judgment of Trial Court convicting and sentencing accused, was set aside and accused was acquitted of charges and was released.

(b) Criminal Trial‑‑‑

‑‑‑‑ Appreciation of evidence‑‑‑Duty of the Court‑‑‑When a criminal case was decided, it carried with its punishment and it was duty of Trial Court to be extra vigilant and see to it that no injustice was done to accused for lack of proper examination of evidence‑‑‑If Trial Court applied its mind to the most essential facts of case, then there would be no occasion for any conviction and subsequent litigation on the part of accused persons to get themselves free.

Musharaf Ali Jami for Appellant.

Complainant in person.

Anees Muhammad Shahzad for the State.

Date of hearing: 7th December, 2004.

2005 P Cr. L J 455

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, C.J.

RAB NAWAZ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.3/Q of 2002, decided on 27th October, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 456 & 457‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/18‑‑‑Appreciation of evidence‑‑‑Accused, at the trial, had not denied his presence, recovery and arrest from a room of house belonging to complainant, but had raised plea that he was taken and confined in the room on gun‑point by complainant and his son‑‑­Accused or defence witness who was nephew of accused, neither had lodged any report regarding alleged `abduction' of accused by complainant or his soil nor any other step was taken by defence witness to get his uncle "rescued" from clutches of complainant and his son‑‑­Stand taken by accused, at the trial, was inconsistent with his defence plea‑‑‑Defence plea taken by accused which appeared to be an afterthought, had rightly been rejected by Trial Court‑‑‑Accused was supposed to place before Trial Court the true facts of the case if he considered that version of occurrence as given by prosecution witnesses was incorrect and special plea with regard to existence of a particular fact was advanced‑‑‑Accused was obliged to prove that he was deceitfully taken away by complainant and was confined in the house, but he failed to do so‑‑‑Accused had rightly been convicted by Trial Court, but as allegation regarding commission of Zina by him with daughter of complainant could not have been established at the trial and it was also not proved by prosecution that accused had entered the house of complainant in order to commit any offence punishable with imprisonment, provisions of S.457, P.P.C. were not attracted to the case of accused and instead he should have been convicted under S.456, P.P.C. for committing lurking house trespass by night and infliction of sentence of one year's R.I. on him would have been sufficient to meet the ends of justice‑‑‑Conviction and sentence recorded against accused under S.457, P.P.C. were set aside and he was convicted under S.456, P.P.C. and was sentenced to undergo R.‑I. for one year.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 456 & 457‑‑‑Prasumption of innocence‑‑‑When no prima facie case was made out then it would be open to accused to rely on the presumption of innocence or on the discrepancies, deficiencies and infirmities of prosecution evidence, but once prima facie case was made out and presumption of innocence was ruled out then force of suspicious circumstances was intensified particularly when accused attempted no explanation of facts which he could reasonably be presumed to be able and interested to make‑‑‑Accused was supposed to place before Trial Court the true facts of the case if he considered that version of occurrence as given by prosecution witnesses was incorrect and special plea with regard to existence of a particular fact was advanced.

Abdul Haque v. The State and another PLD 1996 SC 1; Navid Akhtar and others v. Muhammad Saeed Khan and another 2004 SCMR 1469; Abdul Wahid v. The State 2003 SCMR 668; Noorul Haq v. The State 1992 SCMR 1451; Kotan Khan v. The State 1992 MLD 1944; Shrikant Anandrao Bhosale v. State of Maharashtra AIR 2002 SC 3399; Dulal Nayek v. State 1987 Cr.LJ 1561; Hari Narayan Chandra and others v. Emperor, AIR 1928; Leda Bhaget v. Emperor, 1931 Patna 384; Ghanshyam Singh and others v. Emperor AIR 1928 Patna 100; The Public Prosecutor v. Budipiti Devaskikamani 106 Ind. Cases 559; Ashraf Ali v. Emperor, 43 Ind. Cases 241 and Muhammad Nabi Khan and another v. Emperor AIR 1934 Oudh 251 ref.

Muhammad Hassan Bilal Buzdar for Appellant.

Sheikh Ghulam Ahmad for the State.

Date of hearing: 27th October, 2004.

2005 P Cr. L J 520

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, C. J.

Haji KHUDAI DOST and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.270/I of 2003, decided on 26th October, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 34, 38 & 392‑‑‑Joint liability‑‑‑Principles‑‑‑Scope and application of S.34, P.P.C.‑‑‑Section 34, P.P.C. was a convenient form of giving notice to accused that principle of joint liability was sought to be invoked‑‑‑Said section was only rule of evidence and did not create a substantive offence and by virtue thereof only rule of constructive liability was applied‑‑‑Since object of a charge was to warn accused of the case he was to answer ‑‑‑Omission to mention S.34, P.P.C. in the charge could not affect the case unless prejudice was shown to have resulted in consequence thereof‑‑‑By way of abundant caution, it was better to frame a specific charge in all those cases where S.34, P.P.C. was applied‑‑‑No prejudice having been shown to have been caused to the accused nor it was conspicuous on record that they were misled in their defence by absence of specific charge under S.34, P.P.C., such omission was not fatal‑‑‑Provisions of S.34, P.P.C. would be applicable to those cases only in which it could be difficult to distinguish between acts of individual members of a party who acted in furtherance of common intention of all or to prove exactly what part was played by each of them otherwise S.38, P.P.C. would come into play‑‑‑None of the prosecution witnesses having uttered a single word about a preconceived plan on the part of accused to commit offence of robbery or that they had acted in furtherance of common intention of all, in absence of requisite proof, S.34, P.P.C. could not have been applied to the case and accused were liable for acts done by them individually within purview of S.38, P.P.C.‑‑‑In all those cases, in which occurrence took place all of a sudden on account of chance encounter between parties, as happened in the present case, application of principle of vicarious criminal liability would be out of question.

Khadim Hussain and 3 others v. The State 1991 PCr.LJ 2323; Sabuz Hussain Shah and 3 others v. The State PLD 1987 Pesh. 164; Muhammad Sharif and 2 others v. The State PLD 1981 Lah. 191; Iqbal and others v. The State 1990 ALD 471(2) and Misbahuddin and others v. The State 1983 PSC 72 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 392, 379 & 426‑‑‑Appreciation of evidence‑‑‑Sentence, reduction in‑‑‑Occurrence had not taken place in the manner as suggested by prosecution‑‑‑Trial Court though had convicted accused persons for committing offence of robbery and truck in question was also allegedly taken away by one of accused persons, but from the evidence, case did not appear to be patent case of robbery, because it had come on record that while some of accused persons forcibly alighted complainant from the truck, main accused and his companions smashed wind screen of vehicle by giving Danda blows‑‑‑If intention of accused Was to commit robbery then neither was any need nor occasion to smash wind screen of truck‑‑‑Said truck according to prosecution version, was subsequently recovered from the house of accused parked therein‑‑‑Complainant had himself stated that occurrence took place in front of house of accused, and if intention of accused persons was to commit robbery then there was no need to bring truck back to place of occurrence and park the same there again‑‑‑From sequence of events, it appeared that there was no element of pre‑meditation and occurrence appeared to be the result of blockage of way by tractor allegedly driven by one of accused persons‑‑­None of prosecution witnesses, including complainant had stated at the trial that accused persons were sharing common intention to commit offence and acts done by all of them were in furtherance of their common intention‑‑‑No overt act towards commission of offence of beating complainant or theft was attributed against accused, though the truck in question was subsequently found in his house‑‑‑Occurrence having taken place in front of house of accused, recovery of truck would hardly saddle accused with liability of theft or dishonestly taking possession of stolen property‑‑‑Accused, in circumstances, at the most was guilty of committing mischief, culpable under S.426, P.P.C.‑‑­Conviction and sentence recorded against accused under S.392, P.P.C., were set aside, and instead he was convicted and sentenced under S.426, P.P.C. and keeping in view his old age, sentence already undergone by him was sufficient to meet the ends of justice‑‑‑Conviction and sentence awarded to accused under S.392, P.P.C. were also set aside as at the most he could be convicted and sentenced under S.379, P.P.C.‑‑‑Co­-accused was convicted and sentenced under S.379, P.P.C. accordingly.

B.N. Srikantiah, Siddiah and another v. State of Mysore AIR 1958 SC 672; Willie (Williom) Salney v. State of Madhya Pradesh AIR 1956 SC 116; Waryam Singh Arur Singh v. Emperor AIR 1941 Lah. 214 and Jaikrishnadas Manohardas Desai and another v. State of Bombay AIR 1960 SC 889 ref.

M. Zafar and Faizullah Khan Sargarhi for Appellants.

Kamran Murtaza for the Complainant.

Sheikh Ghulam Ahmad for the State.

Date of hearing: 26th October, 2004.

2005 P Cr. L J 617

[Federal Shariat Court]

Before Saeed-ur-Rehman Farrukh, Zafar Pasha Chaudhary, JJ

KARAM HUSSAIN alias KARMA----Appellant

versus

THE STATE---Respondent

Jail Criminal Appeal No.294/I of 2004, decided on 15th December, 2004.

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

----S. 377---Appreciation of evidence---Fact that victim was subjected to sodomy, was amply proved by the medical evidence itself---To constitute offence under S. 377, P.P.C., mere penetration was sufficient---Oral examination of victim had fully proved that victim had been subjected to commission of unnatural offence---Victim boy had made consistent and coherent statement in which he had fully implicated the accused for commission of unnatural offence with him; his statement was fully supported by medical evidence and same was further supplemented by the report of Chemical Examiner---Even in absence of Chemical Examiner's report commission of sodomy against accused was proved beyond doubt---Statement of victim was supported by two private witnesses---Defence put forward by accused was totally incredible being vague and general in nature and it was not believable that victim or complainant party would have fabricated a false case and that too of sodomy in order to falsely implicate accused at the instance of employer of victim---Prosecution, in circumstances had successfully discharged its onus by proving charge under S. 377, P.P.C. against accused---Conviction of accused was upheld and maintained---Sentence of 10 years R.I. with fine recorded against accused by Trial Court, did not appear to be excessive keeping in view the age of victim who was only 10/11 years old and he was brutally subjected to unnatural offence---Appeal of accused to the extent of conviction and sentence under S. 377, P.P.C. was dismissed.

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

----S. 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Appreciation of evidence--Same evidence of abduction in order to attract S. 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 had been adduced against the acquitted accused persons which had been produced against the accused---Trial Court while disbelieving the evidence or material vis-a-vis two acquitted co-accused, proceeded to convict accused on the strength of same material under S.12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Evidence had though shown that place of occurrence was at quite some distance from the place of work of victim boy, but no positive and concrete evidence was available in that regard showing that victim was taken or removed forcibly or he was enticed away by accused---Prosecution was bound under law to prove charge beyond doubt and any doubt arising out of prosecution version, had to be extended to accused---Absence of a direct and concrete evidence, about abduction or kidnapping of victim, would make conviction of accused unsafe for offence under S. 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Victim was though subjected to unnatural offence subsequently, and he was brought for same purpose, but abduction or kidnapping being independent offence required legal proof to sustain a conviction thereunder---Rule of care and caution demanded that though there were circumstances pointing and indicating that victim must have been brought to the field under some allurement or some force, but no positive or tangible evidence was brought on the record in that respect---Conviction of accused under S. 12 of Offence of Zina (Enforcement of Hudood) Ordinance, was set aside while sentence under S.377, P.P.C. was maintained.

Arshad Ali Chaudhry for Appellant.

Shafqat Munir Malik Asstt. A.-G. for the State.

Date of hearing: 15th December, 2004.

2005 P Cr. L J 701

[Federal Shariat Court]

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

ISHFAQ HUSSAIN and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.244/I of 2003 and Criminal Revision No.17/I of 2002, decided on 12th January, 2005.

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

----Ss. 10(2)/16---Appreciation of evidence---Prosecution case was that female accused who was daughter of complainant was already married with other person and it was during subsistence of said marriage, that she went away with male accused and started living an adulterous life with him; on the other hand consistent plea taken at the earliest by both accused was that female accused was never married to said other person---According to accused persons female accused being sui juris left her house against the wishes of her father/complainant and accompanied male accused to Karachi where they entered into a lawful marriage and were living as a married couple and that two kids were born in the said wedlock---In absence of positive evidence, it could not be said that male accused had enticed away co-accused female---Prosecution could not prove alleged Nikah of female accused with other person by any evidence and alleged Nikahnama proved to be false document which was prepared solely with a view to boost prosecution case which was motivated by complainant/father of female accused due to her marriage with male accused without his permission---Complainant proved to be a liar in material details during course of his examination as a witness in Court; he concocted false story of forcible abduction of her daughter by accused---Nobody could be permitted to be benefited by his own fraud and fraud would vitiate most solemn proceedings---Stance of both accused from the very beginning was that female accused was never married earlier to other person and that she left her house on her own accord and they had contracted valid marriage---Statement of accused at the earliest opportunity before police during course of investigation, carried weight---Male accused had taken up plea right from the beginning that he did not know that female accused was married with other person---Proof of mens rea of an accused was necessary before holding him guilty for a crime---Prosecution having failed to prove charge under S. 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, against accused, they were acquitted of the charge.

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

----Art. 199---Constitutional jurisdiction---Scope---High Court in Constitutional jurisdiction could neither appraise evidence nor record findings on disputed question of fact---Constitutional jurisdiction empowered High Court only to set at naught a judgment given by a Court of competent jurisdiction, which was found to be without lawful authority. [p. 712] F

Basharatullah Khan for Appellants.

Ch. Afrasiab Khan for the Complainant.

Shafuat Munir Malik, Asstt. A.-G. and Aftab Ahmad Khan for the State.

Date of hearing: 20th October, 2004.

2005 P Cr. L J 721

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, C.J., Dr. Fida Muhammad Khan and S.A. Rabbani, JJ

PIR IMTIAZ and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.32/K of 2002 L.W. Murder Reference No.2/K of 2002, decided on 13th January, 2005.

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

----S. 10(3)(4)---Criminal Procedure Code (V of 1898), Ss. 233, 236, 237 & 238---Appreciation of evidence---Charging accused with one offence, but convicting for another---Accused persons were charged under S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 for committing Zina-bil-Jabr liable to Tazir, but were convicted under S.10(4) of said Ordinance without alteration of charge which omission was fatal---Marked difference existed between provisions of Ss.10(3) & 10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 as application of S.10(4) of said Ordinance was limited to those cases only, in which rule of constructive liability was required to be applied and besides that said section was a major offence in comparison with S.10(3) of said Ordinance because it carried sentence of death as against sentence of twenty five years rigorous imprisonment provided under S.10(3) of Ordinance---Accused charged with one offence though could under S.237 or 238, Cr.P.C. be convicted of another, but since both said provisions were exceptions to general rule contained in S.233, Cr.P.C., for every distinct offence there should be, separate charge---Person charged with one offence, could not be convicted of another, unless it was doubtful as to what offence was made out against accused and offence was cognate to, or a part of or attempt to commit principal offence with which accused was originally charged as provided under Ss.236 & 238, Cr.P.C.---Accused having not been charged under S.10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 which was a graver offence in relation to S.10(3) of said Ordinance, and thereunder entirely different facts were required to be given prominence, conviction and sentence recorded against accused under S.10(4) of Ordinance, on charge framed, could not sustain---Impugned order passed by Trial Court, was set aside and with consent of parties, case was remanded to Trial Court for its trial and decision afresh in accordance with law.

Sultan Ahmed and others v. The State PLD 1960 SC (Pak.) 173; Sangaraboina Sreenu v. State of Andhra Pradesh AIR 1997 SC 3233; Shanmugham and another v. State 1989 Crl.LJ 203; Asad Khan v. The State 2004 PCr.LJ 245; Mazullah v. The State 2000 PCr.LJ 534; Said Bahadur Shah and another v. The State 2000 PCr.LJ 850; Mangloo v. Emperor AIR 1930 Lah. 544; Saubaraub Lal v. Emperor AIR 1935 Pat. 431; Balmukan and others v. State AIR 1952 Rajasthan 123; Ghulam v. The State PLD 1955 BJ 9; Ahmed Din v. The State PLD 1959 (W.P.) Lah. 760; Fateh Muhammad v. The State PLD 1961 (W.P.) Lah. 212; Ahmad Yar and another v. The State 1991 PCr.LJ 369 and Habib-ul-Wahab-ul-Khairi v. Prof. Dr. Saad Rana 2002 YLR 234 ref.

Shaukat Hussain Zubedi for Appellants.

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

Date of hearing: 13th January, 2005.

2005 P Cr. L J 729

[Federal Shariat Court]

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

IBRAR HUSSAIN---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.328/L of 2002, decided on 6th January, 2005.

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

----S. 10(3)---Appreciation of evidence---Statement of victim girl was duly corroborated by extra judicial confession made by accused---Victim was a sane person and a competent witness to depose about occurrence---Statement of complainant who was cross-examined at great length, as a whole was found confidence inspiring---Complainant refuted all the suggestions put by accused to exonerate himself---Testimony of Lady Doctor who examined victim girl and report of Chemical Examiner lent full support to statement of victim---Reply given by accused during his statement under S.342, Cr.P.C., had shown that he himself was not clear as to what specific plea to take to prove his innocence---Faltering reply of accused lent indirect support to prosecution case---Indirect admission of his guilt in suggestions put to him was also available---Accused did not lead any defence evidence and he also failed to enter the witness-box and depose on Oath in support of his plea of innocence---None of prosecution witnesses had any motive to falsely implicate accused in such serious crime---Prosecution, in circumstances had succeeded in proving its case against accused beyond any doubt---Accused, was rightly convicted by Trial Court under S. 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and substantive sentence imposed on him was fully commensurate with gravity of crime and same was maintained---Accused was also not entitled to benefit of S.382-B, Cr.P.C. given to him by Trial Court which benefit was withdrawn.

Ghulam Murtaza v. The State PLD 1998 SC 152; Mukhtiar-ud-Din v. The State 1997 SCMR 55 and Muhammad Rafiq v. The State 1995 PSC (Crl.) 830 ref.

Mian Muhammad Saeed for Appellant.

Raja Akhtar Nawaz for the State.

Date of hearing; 6th January, 2005.

2005 P Cr. L J 758

[Federal Shariat Court]

Before S.A. Manan, J

ALTAF HUSSAIN---Petitioner

versus

THE STATE and 3 others---Respondents

Criminal Revision No.50/L of 2004, decided on 25th June, 2004.

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

----S. 7---Criminal Procedure Code (V of 1898), S.203---Dismissal of complaint---Complainant/petitioner, as prosecution witness had deposed that respondent in his application filed before D.S.P. had levelled allegations of Zina against the complainant---Other two prosecution witnesses had corroborated statement of the complainant---Respondent stated in the Court that he did not file any application before police levelling allegations of Zina against the complainant---Application allegedly filed by respondent in verbatim had been reproduced in para.2 of the complaint, but Trial Court did not consider the same and only after recording evidence of complainant, dismissed the complaint---Validity---Trial Court did not examine the whole case with due care and caution---Application filed by respondent having been produced in verbatim, it was bounded duty of Trial Court to have gone through the complaint---Facts stated in complaint were crucial for decision of the case---No positive finding was given on allegations contained in the complaint and entire record being not before the Trial Court, order dismissing complaint passed by Trial Court suffered from misreading of important evidence---Order dismissing complaint, was set aside and complaint was restored with direction that respondent be summoned to face trial in the complaint which would be concluded within specified period.

Mahmood Alwari for Petitioner.

Mian Muhammad Nawaz for Respondents.

Masood Sadiq Mirza for the State.

Date of hearing: 24th June, 2004.

2005 P Cr. L J 764

[Federal Shariat Court ]

Before S.A. Rabbani, J

ABID HUSSAIN and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.36/K of 2002 and Jail Criminal Appeal No.54/K of 2002, decided on 17th June, 2003.

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

----Art. 4---Appreciation of evidence---Accused were allegedly apprehended from a populated area and at a business time, but no independent witness was involved to prove recovery of 'heroin' powder from the possession of accused---All three witnesses examined in case were police officials---Said witnesses stated that wrappers recovered from possession of accused were of equal weight of five grams, but they did not clearly state as to how they weighed alleged 'heroin' powder and whether it was actually weighed at all---Police officials though were witnesses like any other witness, but, in circumstances, their evidence was to be scrutinized with a good deal of scepticism because possibility of false involvement by police just to show their efficiency, could not be ruled out---Absence of independent witnesses, other than police officials themselves, would make case doubtful and benefit of doubt would go to accused---Conviction and sentence awarded to accused by Trial Court, were set aside and they were ordered to be released.

Abdul Ghaffar Samo and Zaheer Ahmad Qureshi for Appellants.

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

Date of hearing: 17th June, 2003.

2005 P Cr. L J 806

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, C.J.

MUHAMMAD ALI BABAR---Petitioner

versus

THE STATE and another---Respondents

Criminal Revision No.30/I of 2003, decided on 14th January, 2004.

Criminal Procedure Code (V of 1898)---

----Ss. 154 & 200---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10, 11 & 15---Challan case and complaint case---Stay of proceedings in challan case---Sister of wife of petitioner lodged F.I.R. against petitioner that he abducted her and had committed Zina with her, but at trial said complainant had resiled from her earlier statement made in F.I.R. and instead stated that petitioner, after divorcing her real sister, had contracted marriage with her and that she was neither abducted nor she was subjected to Zina by petitioner---Wife of petitioner had filed private complaint alleging that she was in wedlock with petitioner and while her marriage was still subsisting, petitioner had contracted second marriage with her real sister who was complainant in earlier challan case and that since said marriage was void both petitioner and her sister were guilty of offence of Zina---Though altogether two different versions had been introduced in the two cases, but allegation contained in earlier challan case as well as in subsequently filed complaint case, in pith and substance, was one and the same i.e. commission of Zina by petitioner with sister of his wife---Once challan case as well as complaint case with regard to same occurrence or arising out of same transaction were constituted, then in order to avoid double jeopardy and conflicting judgments, it would be highly appropriate to see that both cases were tried by same Court in the manner that prejudice was not caused to any of the parties---Where prosecution versions in police challan case and complaint case were considerably different and case set up in complaint case was at variance with that of police challan case, it would be appropriate to stay proceedings in challan case and proceed with complaint case at first---Trial Court on application of wife of petitioner who had filed complaint case, had rightly stayed proceedings in earlier challan case because otherwise there was likelihood that either of the parties would have been prejudiced---Revision petition against order of Trial Court which was proper one, was dismissed, in circumstances.

Karim Bakhsh v. Zulfiqar and 4 others 1997 SCMR 334; Raja Khushbakht-ur-Rehman and another v. The State 1985 SCMR 1314; Zulfiqar Ali Bhutto v. The State PLD 1979 SC 53; Khetrabasi Samual and others v. The State of Orissa 1969(2) SCC 571; Kewal Krishan v. Sura Bhan and another AIR 1980 SC 1780; Shaikh Sumir and others v. Beni Madhab Gope and another AIR 1923 Cal. 644 and Jagabandu Behera v. Khetrabasi Samual and others AIR 1978 Orissa 26 (V 55 C 11) ref.

M. Bashir Khan for Petitioner.

Muhammad Ilyas Siddiqui for Respondent.

Muhammad Sharif Janjua for the State.

Date of hearing: 14th January, 2004.

2005 P Cr. L J 868

[Federal Shariat Court]

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

LIAQAT ALI---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.211/L of 2004, decided on 4th March, 2005.

Penal Code (XLV of 1860)---

----Ss. 302(b), 201 & 34---Appreciation of evidence---Prosecution evidence comprised of three categories; evidence of last seen; evidence of recovery of dead body from the courtyard of accused; and medical evidence as supporting material---Evidence of last seen had been furnished by prosecution witness who had no enmity or any other grouse against accused to depose against him falsely---Said witness had seen deceased being taken by accused into his house and said witness informed father of deceased about that---Said witness was subjected to a detailed and gruesome cross-examination, but he could not be detracted from his statement---Father of deceased, who was complainant, was related to accused, his veracity could not be doubted and his statement inspired confidence and same appeared to be truthful---In view of statement of prosecution witness as well as statement of complainant/ father of deceased, there was no doubt that deceased was last seen in the company of accused---Evidence of prosecution witness before whom accused had confessed his guilt in detail was supported by another prosecution witness who heard conversation between accused and his accomplice who had absconded---Extra judicial confession, no doubt, had to be considered and assessed with care and caution, but if statement is supported by subsequent events as disclosed by accused, then same could be safely relied upon---Both witnesses of extra judicial confession of accused, having no motive to falsely implicate him, their assertion that accused had confessed his guilt before them, could not be ignored---Even otherwise when credible suspicion was found against accused, his making confessional statement before witnesses, could not be termed as unnatural or improbable---Dead body of deceased was found buried right inside the courtyard of house of accused which was recovered after digging out earth on pointation of accused---Ditch from where dead body was recovered was about 3-1/2 X 4 feet and said recovery was made in presence of prosecution witnesses---Place of burial was levelled after burying deceased therein and said house belonged to accused---No one else could have detected that deceased had been buried in the courtyard of house unless same was pointed out by accused---From recovery of dead body of deceased which was examined, had fully proved that accused after committing rape with deceased, throttled her to death and in order to screen the evidence of murder he had buried dead-body in his courtyard---Accused could not prove that on day of occurrence he was not present but had left his house to attend funeral of his father-in-law who had died a few days before occurrence---Dead body was fully identified to be that of deceased---Mere fact that dead body was decomposed or putrefied, would not, by itself, lead to conclusion that it was unidentified; it having been fully proved that accused had committed murder of deceased, he had been rightly convicted and sentenced---Accused had not been awarded normal sentence of death, but had been punished with alternate sentence of imprisonment for life---Accused, in circumstances had been dealt with leniently---Conviction and sentences awarded to accused by Trial Court being unexceptionable, were maintained.

Ehtasham Qadir Shah and Mansoor Ahmed Mian for Appellant.

Raja Akhtar Nawaz for the State.

Date of hearing: 24th February, 2005.

2005 P Cr. L J 887

[Federal Shariat Court]

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

ABDUL GHAFFAR and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.32/L of 2004, decided on 1st February, 2005.

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

----S. 10(3)---Appreciation of evidence---Sentence---Determination---Principles---Victim girl though was of an extremely young age being about 11 years old, but her conduct and behaviour throughout appeared to be quite natural and realistic and supported her version in the Court---Trial Court found her capable of making rational statement---Victim girl made a consistent statement indicting accused for commission of Zina-bil-Jabr with her---Even if from attitude of victim girl or circumstances it could emerge that she was a consenting party, but same could not be of any benefit to accused---Victim girl was subjected to a very searching and tough cross-examination, but she stood the test and her testimony or credibility could not be vitiated---No apprehension existed of any tutoring of victim girl, in circumstances---Accusation made by victim or allegations levelled by her were fully supported by Medical evidence and she appeared to have been consistently subjected to sexual intercourse---Medical evidence was further supported rather strengthened by report of Chemical Examiner whereby swabs were found to be stained with semen---Prosecution, in circumstances had proved beyond doubt commission of Zina-bil-Jabr against the accused---Conviction of accused under S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was unexceptionable---In order to determine quantum of sentence, necessary attending circumstances and facts had to be taken into consideration---Accused no doubt had committed heinous offence, but he was a young man, whose entire future was in front of him and as per record he had no previous history of any criminal or immoral antecedents---Culprit should not go unpunished, but possibility of his reformation and mending the future behaviour should not be ignored---Accused had earnestly expressed his deep penitence and remorse over the sin committed by him and he assured that he would mend his future behaviour and requested some leniency in punishment---Imposition of maximum sentence on accused was very harsh---Sentence of 25 years R.I. was reduced to 15 years R.I. as same would meet ends of justice.

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

----S. 10(3)---Penal Code (XLV of 1860), S.109---Appreciation of evidence---Benefit of doubt---Extension of---Co-accused was real sister of main accused and allegation against co-accused was that she abetted or facilitated commission of rape by her brother with victim girl---Evidence in that behalf was of solitary statement of victim girl---Victim girl though had no enmity or any proved malice against co-accused, but fact remained that co-accused was step-mother of victim girl---Displeasure or even annoyance on part of maternal parents of victim girl towards co-accused was quite evident from record---Possibility that girl would have been prompted by her maternal relations to involve and implicate co-accused, could not be totally ruled out---Apart from bald allegation of abetment or facilitation of commission of offence, no other material or even a circumstance was to show that in fact she abetted her brother/main accused in accomplishment of his design---Allegation of abetment against co-accused was not supported by any corroborative piece of evidence---Rule of safe administration of justice demanded that benefit of doubt should by extended to co-accused---Allegation, however, strong or heinous could be, but conviction could not be recorded in absence of credible and tangible evidence---Conviction and sentence awarded to co-accused by Trial Court were set aside---Appeal to extent of co-accused was allowed.

Rana Ejaz Ahmad Khan for Appellants.

Sardar Ahmed Abid for the State.

Date of hearing: 1st February, 2005.

2005 P Cr. L J 899

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, C.J.

WAHEED ULLAH HABIB and 2 others---Petitioners

versus

THE STATE and another---Respondents

Criminal Miscellaneous Application No.190/I of 2004, decided on 15th February, 2005.

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

----Ss. 154 & 155---Information about cognizable and non-cognizable cases---Recording of---Officer Incharge of Police Station on receiving information relating to the commission of an offence, was bound under S.154, Cr.P.C. to reduce same into writing and investigate the matter, but pre-requisite for registration of F.I.R. was that the information so received should be with regard to a cognizable offence otherwise it could be simply entered in a book, kept for the purpose and informant be referred to Magistrate as provided by S. 155, Cr.P.C.---Criminal proceedings instituted against accused must be taken to logical conclusion and should not be interfered with at initial or interlocutory stage, unless the allegations contained in F.I.R. or the complaint at their face value did not disclose a cognizable offence or were not capable to constitute the offence alleged or were so illogical that no sensible person could ever reach to the conclusion that accused could be proceeded against on the basis thereof or complaint was intended to settle score on account of any personal grudge or the prosecution of the accused was barred by any law---In appropriate cases, where it was apparent that police had transgressed its statutory power and apprehension was that continuation of proceedings would be an exercise in futility or wastage of time and could result in abuse of process of the Court, it could, in order to secure ends of justice, be interdicted.

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

----Ss. 249-A, 265-K, 561-A & 154---Inherent powers of the Courts---Scope---Though no clog of time was on exercise of inherent powers by the Courts which could be used at any stage, but since power of the Trial Court under S. 249-A, Cr.P.C. and under S. 265-K, Cr.P.C. was co-extensive with similar power of High Court under S. 561-A, Cr.P.C., F.I.R., if required, should be quashed at pre-trial stage only when cognizance was not taken by the Court otherwise the matter should be left at the discretion of Trial Court.

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

----S. 561-A---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.13 & 14---Foreigners Act (XXXI of 1946), S.14---Quashing of proceedings---Allegations against accused in F.I.R. were only to the extent that at the time of raid accused were found in house in question in semi-naked condition---No allegation was levelled that accused at the relevant time, were either committing Zina or had any intention to do so---Even there was no allegation that accused were found kissing or embracing or were close to each other---No money was recovered from the possession of woman against whom allegation was that she was running the brothel house---Except allegation contained in F.I.R., neither any witness had seen accused persons committing Zina or even attempting to do so---At the time of raid no witness of the locality was associated to testify that house in question was being used as a prostitution den---Material collected by prosecution including the statements of prosecution witnesses recorded under S. 161, Cr.P.C., was not likely to improve the case as disclosed in F.I.R. nor on the basis of allegations contained in F.I.R. as well as material collected by prosecution, any cognizable offence was made out---Challan in case had not so far been submitted despite the fact that F.I.R. was registered way back in July, 2004---Continuation of proceedings in case would be mere an exercise in futility---F.I.R. registered against accused was quashed, in circumstances.

Miraj Khan v. Gul Ahmad and 3 others 2000 SCMR 122; Punhal Shah and others v. The State PLD 1984 SC 22; Syed Murad Ali Shah v. Government of Sindh PLD 2002 Kar. 464; Altaf Hussain v. Government of Sindh PLD 1997 Kar. 600; Safia Sultana v. The Station House Officer, Police Station Nawankot, Lahore PLD 1988 Lah. 714; Muhammad Younas v. The State PLD 1987 Lah. 7; Mukhtar Ahmad and others v. The State 1984 PCr.LJ 92; Qaiser Saleem v. Hasham Hussain and another 1987 PCr.LJ 133; Karam Khan v. Khuda Bakhsh 1983 PCr.LJ 2004; S.M. Dutta v. State of Gujrat and another AIR 2001 SC 3253; T.T. Anthoni and others v. State of Kerala and others 2001(5) Supreme 131; Satish Mehra v. Dehli Administration and another 1996(5) Supreme 742; Muhammad Bilal v. S.P. and others PLD 1999 Lah. 297; V.A. Khanna v. Jambo Electronics 1984 Cr.LJ 1967; Mian Munir Ahmad v. The State 1985 SCMR 257; Mst. Sukhan v. The State 1985 PCr.LJ 110; Muhammad Saleem and another's case 1988 PCr.LJ 2321 and Mst. Shakeela v. The State 2001 PCr.LJ 43 ref.

Malik Rab Nawaz Noon for Petitioners.

Shafqat Munir Malik, Asstt. A.-G. for the State.

Date of hearing: 7th October, 2004.

2005 P Cr. L J 925

[Federal Shariat Court]

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

ZIMAN ABBAS and 4 others---Applicants

versus

THE STATE---Respondent

Criminal Miscellaneous Application No.83/L of 2004 in Criminal Appeal No.6/L of 2004, decided on 2nd February, 2005.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.302, 201, 364, 452, 337-H(ii), 337-L(b) & 109---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10 & 16---Suspension of sentence---Application for---F.I.R. was lodged promptly and names of all accused were not only given therein, but specific roles to each of them were also attributed---Statements of witnesses of extra-judicial confession under S.161, Cr.P.C. though were recorded after about three months, but in peculiar circumstances of the case, accused could not take advantage of such delay because both witnesses had categorically stated at the trial that since accused had threatened them of dire consequences, if they gave evidence, they had to keep quiet---Contention that since accused at the time of occurrence remained outside the house, they could not be held responsible for the offence, was repelled because as per statement of prosecution witness the compound wall of the house was three and a half feet high and accused being allegedly armed with fire-arm, it could not have been concluded with certainty that presence of accused being outside house was of no significance---Even otherwise all contentions raised by accused required re-appraisal of evidence, which was not deemed expedient---While deciding application under S. 426, Cr.P.C. a perusal of evidence in depth was neither warranted nor desirable---Operation of impugned judgment could be suspended only when on perusal of evidence detailed in judgment, Appellate Court came to the conclusion that impugned judgment, due to any legal error could not sustain---Appeal in all probabilities, was likely to be heard in near future---Application for suspension of sentence, was dismissed.

Adil Bashir v. The State 2003 SCMR 407; Allah Ditta Khan v. The State PLD 2002 SC 845; Farhat Azeem v. Waheed Rasool and others PLD 2000 SC 18; Ahmad Din and 2 others v. Muhammad Tazeem and another SC (AJ&K) 2004 PCr.LJ 956; Abdur Rashid v. The State 1998 SCMR 149; Bashir Ahmad v. Zulfiqar and another PLD 1992 SC 463 and Jamshed Azam v. The State 1990 SCMR 1393 ref.

Sh. Khizar Hayat for Applicants.

Muhammad Masood Chishti for the Complainant.

Muhammad Sharif Janjua for the State.

Date of hearing: 2nd February, 2005.

2005 P Cr. L J 952

[Federal Shariat Court]

Before Zafar Pasha Chaudhary, J

DAULAT KHAN---Petitioner

versus

THE STATE---Respondent

Criminal Revision No.5/P of 2003, decided on 10th February, 2005.

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

----Art. 14---Criminal Procedure Code (V of 1898), S.439---Confiscation of truck allegedly involved in the case---Driver and cleaner of truck in question were convicted and sentenced under Arts. 3 & 4 of Prohibition (Enforcement of Hadd) Order, 1979, and truck in question was confiscated by Trial Court under Art.14, Prohibition (Enforcement of Hadd) Order, 1979---Petitioner, who was owner of truck in question and had obtained Superdari of said truck, had stated that he had no knowledge of nor had nexus with the commission of alleged offence---Held, in order to confiscate a vehicle allegedly used in offence, owner of vehicle should be shown, in some way, to be concerned with commission of offence---If vehicles were confiscated in cases where owners of vehicles were not even aware of the criminal activities carried on by their servants or drivers, then it would not only be unjust, but could be prejudicial to entire community in business of transport---In absence of any mens rea, to penalize a person would be unjust and also contrary to principles laid down under Islamic Jurisprudence for every action the intention of doer had to be kept in view---Petitioner was stated to have no criminal antecedents and he, throughout his life, did not indulge in any activity of carrying or transporting the narcotics---State counsel had not been able to contradict or refute said contentions of petitioner---Prosecution when enquired whether any query or probe was made by raiding party or Investigating Officer to trace out that petitioner/owner of truck in question had any knowledge of transporting the narcotics, Court was informed that nothing had been done in that regard and no one ever adverted to that aspect---Packet of heroin was recovered from underneath the bonnet of the engine and there was no pocket or any other secret column constructed within the body of the truck, which could indicate or suggest that same could not have been done without knowledge or permission of the owner---Confiscation of petitioner's truck, was unjust and improper in circumstances---Judgment of Trial Court in that respect, was set aside in revision by High Court.

Muhammad Ijaz Khan for Petitioner.

M. Sharif Janjua for the State.

Date of hearing; 10th February, 2005.

2005 P Cr. L J 969

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, CJ

BABO EIDAL KHAN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.32/Q of 2003, decided on 25th May, 2004.

Penal Code (XLV of 1860)---

----S. 392---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Appreciation of evidence---Only piece of evidence available on record against accused was their identification at the test identification parade as well as in Court---All prosecution witnesses, except one i.e. the complainant, had stated that accused, at the time of occurrence, had muffled their faces---Neither looted property or any part thereof was recovered from possession of accused nor any other incriminating material was available on record to believe that accused were involved in the offence---If all six accused who, at time of occurrence, had allegedly muffled their faces and were not seen by witnesses, how the witnesses were able to identify them at the test identification parade---Logical inference, in circumstances would be that none of eye-witnesses was able to identify the accused---Only complainant had claimed that he was able to see face of one of accused persons, but prosecution version was that accused were identified by witnesses in the course of their test identification parade---If only the face of one accused was seen as to how witnesses were able to identify all accused persons and that too in absence of details about physical description of accused---In cases of dacoity or robbery conviction could be based on evidence of identification, but legal requirement was that it must be convincing, though its value could vary with circumstances established in each case---Accused were allegedly caught on suspicion but it had not been pointed out as to how they became suspicious as neither they were seen by anybody nor physical description by appearance of any of accused was available---In absence of any proof, accused could not have been convicted for offence merely on suspicion and conviction of accused could not be based solely on identification of a single witness---No evidence direct or circumstantial having available to connect accused with the crime, prosecution had failed to bring home charge against accused---Convictions and sentences recorded against accused by Trial Court were set aside giving benefit of doubt to them---Accused were acquitted of charge and were released.

Lal Pasand v. The State PLD 1981 SC 142; Zulfiqar v. The State 1991 PCr.LJ 1145; Muhammad Nawaz v. The State 2000 PCr.LJ 2064; Emperor v. Maqbool Ahmad Khan AIR 1932 Oudh 317 and Nebi Dusadh v. Emperor 1956 Cr.LJ 95 ref.

Syed Muhammad Tahir for Appellants.

Sheikh Ghulam Ahmed for the State.

Date of hearing: 25th May, 2004.

2005 P Cr. L J 1005

[Federal Shariat Court]

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

MUHAMMAD SARWAR‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Revision No.29/I of 2004, decided on 1st April, 2005.

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

‑‑‑‑Arts. 3 & 14‑‑‑Control of Narcotic Substances Act (XXV of 1997), S.32‑‑‑Constitution of Pakistan (1973), Art. 203‑DD‑‑‑Confiscation of truck carrying the narcotics‑‑‑Validity‑‑‑Article 14 of the Prohibition (Enforcement of Hadd) Order, 1979 and S.32 of the Control of Narcotic Substances Act, 1997 had been couched in similar and identical language‑‑‑Principle laid down in proviso to S.32 of the said Act could be pressed into service while confiscating the vehicle in the interest of justice, contents of which were also fully in conformity with the principles of natural justice‑‑Truck in question was a valuable property and confiscation of the same amounted to a severe punishment to a person who had no direct or even indirect connection with the commission of the offence and would lead to grave miscarriage of justice‑‑‑Confiscation of the truck had been ordered without determining whether the petitioner, who claimed to be its owner, was involved in the commission of the offence‑‑‑Punishment awarded, in absence of actus reus, was not only illegal but also violative of the fundamental rights conferred by the Constitution‑‑‑No direct or indirect evidence or even a circumstance emerged from the record to show that the owner of the truck had, in any manner knowledge of commission of the offence‑‑­Impugned order of confiscating the truck was consequently set aside and the matter was remanded to Trial Court to pass an appropriate order regarding its delivery after determining as to who was entitled to possession of the truck‑‑‑Revision petition was accepted accordingly.

Arif Hussain and Miss Farzana Baig for Petitioner.

M. Sharif Janjua for the State.

Date of hearing: 15th March, 2005.

2005 P Cr. L J 1010

[Federal Shariat Court]

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

NADEEM‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 205‑I of 2002 and Criminal Murder Reference No.6‑I of 2003, decided on 24th March, 2004.

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

‑‑‑‑S. 12‑‑‑Penal Code (XLV of 1860), Ss.302(a), 377 & 201‑‑-­Appreciation of evidence‑‑‑Case of prosecution rested on circumstantial evidence which consisted of; last seen evidence; conduct of accused soon after alleged occurrence; recovery of dead body at the pointation of accused; recovery of shoes of deceased; and medical evidence‑‑‑Evidence of prosecution witness about having last seen deceased in the company of accused was impressive and truthful‑‑‑Said witness had no motive to falsely implicate accused in the case‑‑‑No reason existed to differ with finding of Trial Court to the effect that veracity of the testimony of said witness was not open to any doubt‑‑‑Implication of accused in the case, besides being based on the last seen evidence, found support from the conduct of accused soon after occurrence‑‑‑Accused, who previously was seen accompanying deceased, subsequently came back alone and on being questioned to disclose the whereabouts of deceased child, accused became nervous‑‑‑Instead of giving any reply, he ran away and disappeared in the bushes; his such conduct had lent great deal of support to prosecution version about his implication in the crime‑‑‑Recoveries of last worn shoes of deceased and dead body of deceased at the pointation of accused, were yet other weighty circumstances to prove his guilt‑‑‑Medical evidence had fully supported prosecution version that deceased was subjected to sodomy and was then strangulated to death‑‑‑Chemical Examiner's report had shown that anal swabs were stained with semen‑‑‑Chain of events, in the case, from the point of time when deceased was abducted by accused upto the recovery of dead body and shoes of deceased at his instance, remained unbroken‑‑‑Said pieces of evidence had provided complete and conclusive proof of guilt of accused‑‑‑Accused did not lead any defence evidence and also did not enter the witness‑box to depose on Oath in support of his plea of innocence‑‑‑Case was a shocking one in which accused had acted like a fiend and subjected a child of seven years to his unnatural lust and then killed him; accused threw dead body of deceased in the canal in an attempt to cover up his crime‑‑‑Accused, in absence of any mitigating circumstances, deserved the extreme penalty of death which was awarded to him by Trial Court‑‑‑Convictions and sentences recorded against accused by Trial Court being fully justified, were upheld.

Sh. Muhammad Amjad v. The State PLD 2003 SC 704; Mst. Reshman Bibi v. Sheerin Khan 1997 SCMR 1416; Jafar Ali v. The State 1998 SCMR 2669 and Mst. Robina Bibi v. The State 2001 SCMR 1914 ref.

Saliheen Mughal for Appellant.

Muhammad Sharif Janjua for the State.

Date of hearing; 24th March, 2004.

2005 P Cr. L J 1027

[Federal Shariat Court]

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

QAISER and 4 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.237/L, 260/L and 289/L of 2004, decided on 1st March, 2005.

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

‑‑‑‑Ss. 10(3), 11 & 16‑‑‑Appreciation of evidence‑‑‑Story of forcible abduction as narrated by victim girl was totally unbelievable‑‑‑Had there been any forcible abduction and that too during day light at about 2‑00 p.m. (afternoon) she would have resisted same by raising alarm and also by using possible force in order to avert her forcible abduction‑‑­Statement of victim in that regard was rampant with inconsistencies and improbabilities‑‑‑According to prosecution witness, he was attracted to scene of occurrence and saw victim girl being dragged into the car standing there‑‑‑Said prosecution witness, after seeing the girl being forcibly dragged, did not make any attempt to rescue her‑‑‑Had he Been the incident, he or for that matter, any human being would have raised alarm and would make possible attempt to rescue the victim‑‑‑Said witness, after seeing alleged incident, left away and did not event inform any one‑‑‑Victim girl, in her cross-examination, had admitted that at relevant time all her family members were present in the house‑‑‑Had she offered any resistance or at least made some hue and cry her inmates or neighbours would have been attracted to the scene and would have tried to thwart the alleged abduction, but nothing was done‑‑‑Said circumstances had abundantly reflected that victim girl was not abducted by accused as alleged by her‑‑‑Accused had claimed that victim girl had entered into Nikah with him, but girl had not accepted validity of her Nikah with him‑‑‑Victim girl had fully proved that she did not marry with accused, but had proved that she was subjected to forcible sexual intercourse‑‑‑Though forcible abduction of girl in the manner as alleged by prosecution could not be true, but element of enticement on part of accused could not be ruled out‑‑‑Girl was not willing to leave house of her parents, but she was made to desert them by accused and subsequently he subjected her to sexual intercourse against her will‑‑­Offence under S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, in circumstances was squarely established against accused‑‑‑Ingredients of S.11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 having not been fulfilled, conviction of accused under said section was not maintainable‑‑‑Case of accused had come within the purview of S. 16 of the Ordinance as element of enticing away girl did exist and had been successfully proved by prosecution against accused‑‑Case against co‑accused being not free from doubt, they were acquitted of charge against them and were released from jail‑‑­Sentence of 25 years' R.I. awarded to accused being excessive considering gravity of offence, was reduced to 10 years' R.I. and as conviction of accused under S.11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was altered to one under S.16 of the Ordinance, his sentence was also reduced accordingly, in circumstances.

Mian Sarfraz‑ul‑Hassan and Mian Muhammad Ismail for Appellants.

Raja Akhtar Nawaz for the State.

Date of hearing: 1st March, 2005.

2005 P Cr. L J 1039

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan, J

LIAQAT ALI alias KALA‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Jail Criminal Appeal No. 103/I of 2004, decided on 26th October, 2004.

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

‑‑‑‑S. 10(3)‑‑‑Appreciation of evidence‑‑‑Delay in registration of case was natural because complainant, who was father of alleged victim was not present at the place of occurrence at relevant time but had gone to other village to condole the death of his near relative and had returned in the night 'and he was informed by his daughter about occurrence‑‑‑Both complainant and alleged victim had improved their versions and material discrepancy in statements of said prosecution witnesses could not be easily overlooked and said glaring material discrepancies had made case of prosecution highly doubtful, improved and incredible‑‑‑Alleged eye­witness had not seen occurrence and complainant was also not an eye‑witness of occurrence and he had simply registered F.I.R. according to information given to him by his daughter/victim‑‑‑Though even a solitary statement could be sufficient to warrant conviction of any accused if it inspired confidence and found necessary corroboration from some independent source but in the present case alleged victim was solitary witness, who had not come out with truth, but had improved her initial version and by so doing she had rendered her testimony doubtful‑‑‑Medical report submitted by Lady Doctor was also making case of prosecution highly doubtful‑‑‑Case of prosecution against accused being highly doubtful; he was entitled to its benefit‑‑­Conviction and sentence recorded against accused by Trial Court were set aside and he was acquitted of charge and was released.

M. Saliheen Mughal for Appellant.

Aftab Ahmed Khan for the State.

Date of hearing; 6th September, 2004.

2005 P Cr. L J 1053

[Federal Shariat Court]

Before S.A. Manan, J

Mst. RUKHSANA and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.223‑L and 259‑L of 2003, decided on 24th November, 2003.

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

‑‑‑‑S. 10(2)‑‑‑Appreciation of evidence‑‑‑No search warrant having been obtained by police, its action to enter the private house of accused was not only highly objectionable, but also not legally sustainable‑‑‑Police could not violate the privacy of the citizen in a highly arbitrary and despotic manner‑‑‑Such action of police could not be countenanced by any system of law otherwise there would be Chaos‑‑‑Every citizen had a right to enjoy the freedom of his house subject to reasonable restrictions‑‑‑Police, in the present case, had acted without any authority in raiding the house without any search warrants‑‑‑Such aspect of the case had not been considered by Trial Court in its proper perspective‑‑­Impugned order of Trial Court being not legally maintainable, appeals filed by accused, were accepted.

Ras Tariq Chaudhry for Appellants (in Criminal Appeal No.223/L of 2003).

Zahid Hussain Khan for Appellant (in Criminal Appeal No.259‑L of 2003).

Masood Sadiq Mirza for the State.

Date of hearing: 24th November, 2003.

2005 P Cr. L J 1065

[Federal Shariat Court]

Before Zafar Pasha Chaudhary, J

MUKHTAR AHMAD ‑‑‑ Appellant

Versus

THE STATE‑‑‑Respondent

Jail Criminal Appeal No.307/I of 2004, decided on 17th December, 2004.

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

‑‑‑‑S. 10‑‑‑Appreciation of evidence‑‑‑Prosecution version was extremely doubtful and unacceptable‑‑‑Victim woman had stated that she was subjected to sexual intercourse forcibly, but accused was not possessed with any weapon or any other instrument which compelled her to desire of accused‑‑‑Application for registration of case against accused was filed after about three weeks of occurrence and F.I.R. was recorded after about two months from alleged occurrence‑‑‑Occurrence was alleged to have taken place in an inhabited place, but not a single witness came to support any link of prosecution story‑‑‑One of prosecution witnesses was given up as unnecessary‑‑‑Medical report as well as report of Chemical Examiner, though was positive; but same would practically become inconsequential because alleged victim was a married woman and was medically examined after about more than two and a half month of occurrence‑‑‑Vaginal swabs obtained from alleged victim woman, were found to be stained with semen, but no comparison of semen was made with the semen of accused‑‑‑Fact that semen on the swab was that of accused could not in circumstances be accepted with certainty‑‑‑Even Trial Court did not believe version qua commission of Zina‑bil‑Jabr,, but it found accused guilty of commission of Zina‑bil‑Raza and convicted accused accordingly‑‑‑Both victim and offender in such a situation, were accomplices in commission of offence‑‑‑Evidence of accomplice had to be relied upon only if a strong and credible corroboration was available, but same was totally lacking in the case‑‑‑Evidence produced in the case did not inspire confidence; it was not safe, in circumstance to maintain conviction of accused‑‑‑Conviction and sentence awarded to accused by Trial Court, were set aside and he was acquitted of charge against him and was released from jail.

M. Saleheen Mughal for Appellant.

Sardar Ahmad Abid for the State.

Date of hearing: 17th December, 2004.

2005 P Cr. L J 1071

[Federal Shariat Court]

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

ABDUS SAMAD and another‑‑ ‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.70/P and Criminal Revision No.32/I of 2003, decided on 22nd September, 2004.

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

‑‑‑‑Ss. 5, 10(3), 11 & 16‑‑‑Penal Code (XLV of 1860), S. 368‑‑­Appreciation of evidence‑‑‑Conviction and sentence‑‑‑Accused, who claimed victim, girl to be his legally wedded wife with whom he had contracted marriage about three years back, before the occurrence, filed suit for restitution of conjugal rights against victim girl‑‑‑Family Court, after thorough consideration, came to conclusion that no Nikah or marriage was ever solemnized between the parties and dismissed suit filed by accused‑‑‑Such order of Court had negated the plea of accused regarding his valid marriage with victim girl‑‑‑There remained no doubt about his commission of sexual intercourse with the victim girl‑‑­Medico‑legal‑report, Chemical Examiner's report and other circumstances along with deposition made by victim girl, accused had been found guilty of offence under Ss. 5 & 10 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979‑‑‑Prosecution, in circumstances had brought home guilt of accused beyond any reasonable doubt‑‑‑Appeal to the extent of said accused was dismissed and conviction and sentences of imprisonment recorded against him by Trial Court under Ss.10(3), 11 & 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, were maintained‑‑‑Since sentence of fine was not provided under S. 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, same was set aside.

Muhammad Azam v. The State PLD 1984 SC 95 ref.

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

‑‑‑‑Ss. 5, 10(3), 11 & 16‑‑‑Penal Code (XLV of 1860), S. 368‑‑­Appreciation of evidence‑‑‑Benefit of doubt‑‑‑Extension of‑‑‑Nothing was on record which could implicate co‑accused in the case‑‑‑No evidence had been brought on record by prosecution to prove that he was a party to abduction of victim girl ‑‑‑Co‑accused, who was closely related to main accused, might have bonafidely given shelter to main accused and might not have had any criminal intention as an evidence was on record to show that he had any role in the matter‑‑‑Case of prosecution against said co-­accused, in circumstances, was not established beyond any reasonable doubt‑‑‑Co‑accused was entitled to get benefit of doubt‑‑‑Conviction and sentences inflicted on said co‑accused were set aside and he was acquitted of charge‑‑‑Appeal to the extent of co‑accused was allowed.

Assad Ullah Khan Chamkani and S. Naz Muhammad Zia for Appelllants.

Muhammad Saleheen Mughal for Petitioner.

Muhammad Sharif Janjua for the State.

Date of hearing: 22nd September, 2004.

2005 P Cr. L J 1083

[Federal Shariat Court]

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

MUHAMMAD RAFIQUE and 3 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.37/I of 2004, decided on 6th October, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302 & 34‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10(3)‑‑‑Juvenile Justice System Ordinance (XXII of 2000), Ss. 2(e), 5, 6 & 11‑‑‑Appreciation of evidence‑‑‑Trial of minors‑‑­Out of four accused persons who were convicted and sentenced only one was adult while three others were minors as they had not attained age of 18 years at the time of occurrence‑‑‑Under provisions of Juvenile Justice System Ordinance, 2000 one child could be charged with or tried for, an offence together with, an adult and S. 11 of said Ordinance had expressly provided a beneficial treatment to a Juvenile; in view of said special provision of law it could not be said that no prejudice had been caused to three minor accused by trying them with one adult accused‑‑‑Child offender was entitled to said beneficial treatment and if trial was not conducted accordingly, then prejudice was quite obvious‑‑‑Trial conducted by Trial Court, in circumstances was illegal and without jurisdiction‑‑‑Conviction recorded against said three minors could not be maintained‑‑‑Case was remanded to Trial Court to hold trial of accused afresh either itself or by entrusting same for retrial to another Additional Sessions Judge who had been vested with powers of Juvenile, Court.

M. Shoaib Shaheen and Saliheen Mughal for Appellants.

Shafqat Munir Malik and M. Sharif Janjua for the State.

Date of hearing: 6th October, 2004.

2005 P Cr. L J 1091

[Federal Shariat Court]

Before S.A. Rabbani, J

MUHAMMAD SARWAR alias SARA‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 189‑I of 2004, decided on 5th November, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 377‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 12‑‑‑Appreciation of evidence-‑Conduct of complainant in making allegations about commission of offence, had rendered case highly doubtful, because in F.I.R. he nominated two persons with details of their parentage, caste and address‑‑‑F.I.R., though was lodged on the next day and sufficient time was available to complainant to inquire from his child about person who committed offence, but complainant made supplementary statement after some time in which he substituted both accused persons with another two persons and at the evidence stage, he exonerated even one of them leaving present accused alone‑‑­Complainant, in evidence before the Court, had stated that accused along with one unknown person took his son with them‑‑‑Complainant had totally exonerated other accused and denied that he had mentioned his name in his supplementary statement‑‑‑Another prosecution witness was brother of complainant and his evidence was also not reliable because of his changing versions and contradictions with the evidence of alleged victim‑‑‑Even victim himself did not corroborate version of said witness‑‑‑Statement of alleged victim was also not beyond doubt and it appeared that he was carefully tutored by the complainant and he gave evidence accordingly‑‑‑Prosecution evidence was not confidence inspiring and witnesses were not reliable‑‑‑Prosecution case against accused being highly doubtful, he was entitled to benefit of doubt‑‑‑Accused was acquitted of the charge giving him benefit of doubt‑‑‑Conviction and sentence recorded against accused by Trial Court, were set aside and he was released.

M. Saliheen Mughal for Appellant.

Aftab Ahmad Khan for the State.

Date of hearing: 5th November, 2004.

2005 P Cr. L J 1108

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan, J

MUHAMMAD JAMIL‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Jail Criminal Appeal No. 162/I of 2004, decided on 4th October, 2004.

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

-‑‑S. 10(3)‑‑‑Appreciation of evidence‑‑‑Reduction in sentence‑‑‑Accused did not press appeal filed by him against order of conviction and sentence passed against him by Trial Court, but had requested for reduction in sentence of imprisonment on ground that he was a first offender, he belonged to poor family and deserved mercy‑‑‑Accused had further submitted that fine which was imposed on him, was not legally required under S. 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, which could be set aside‑‑‑State Counsel also agreed to the request of accused‑‑‑In view of facts, circumstances and material available on record, sentence awarded to accused by Trial Court could be educed in the interest of justice‑‑‑Sentence of 10 years' R.I warded to accused by Trial Court was reduced to five years' R.I. and sentence of fine imposed upon him, was, also set aside as not legally required.

Muhammad Saliheen Mughal for Appellant.

Shafqat Munir Malik, Asstt. A.‑G. and Muhammad Sharif Janjua, for the State.

Date of hearing: 4th October, 2004.

2005 P Cr. L J 1116

[Federal Shariat Court]

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

EJAZ AHMAD‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Jail Criminal Appeal No.2‑I of 2004, decided on 13th September, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b) & 377‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 12‑‑‑Appreciation of evidence‑‑‑No direct evidence was available against accused‑‑‑Evidence about extra‑judicial confession had not been believed by the Trial Court for lack of corroboration‑‑‑Evidence of deceased/victim child having been last seen with accused, comprised the version of one witness‑‑‑According to said witness another person had also seen victim child going on bicycle with accused, but that other person had not been examined and it was reported that he was no more alive‑‑‑Sole witness of last seen had admitted that he was a relative of the complainant and was working as a driver with him‑‑­Such was a very weak piece of evidence‑‑‑Recovery of bicycle on which accused and victim boy were last seen and recovery of razor allegedly used in offence, did not make it certain that said articles were used in crime as no specific description thereof was ever mentioned which was also a weak piece of evidence and said two pieces of evidence did not lead to a definite conclusion that accused had committed offence‑‑‑Trial Court itself was not satisfied with quality of evidence produced against accused‑‑‑Evidence brought on record to connect accused with commission of offence being not adequate for proof of guilt of accused, he was entitled to benefit of doubt‑‑‑Conviction and sentence awarded to accused by Trial Court, were set aside giving him benefit of doubt.

Saliheen Mughal for Appellant.

Fazal‑ur‑Rehman Rana for the State.

Date of hearing: 13th September, 2004.

2005 P Cr. L J 1121

[Federal Shariat Court]

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

Mst. ATIA‑‑‑Appellant

Versus

THE STATE and 2 others‑‑‑Respondents

Criminal Appeal No. 199/L of 1996, decided on 11th November, 2004.

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

‑‑‑‑S. 10‑‑‑Penal Code (XLV of 1860), S.452‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.76‑‑‑Criminal Procedure Code (V of 1898), S.417‑‑‑Appeal against acquittal‑‑‑Prosecution witness had fully supported statement of eye‑witness in all material details‑‑‑Said eye‑witness was also subjected to lengthy cross‑examination, but nothing useful could be gleaned by defence therefrom‑‑‑Critical examination of impugned judgment of acquittal had shown that same was the outcome of non‑reading and misreading of material piece of evidence on the record‑‑‑Besides, the reasoning given by the Trial Court to disbelieve the prosecution story was not merely artificial, but also bordered on perversity of approach‑‑‑Minor discrepancies/variations which naturally cropped up between testimony w prosecution witnesses were blown out of proportion for discarding the Prosecution version as a whole‑‑‑Medical evidence was shut out from consideration for wholly misconceived rather illegal reasons‑‑‑Legal requirement of production of secondary evidence stood duly fulfilled as postulated by Art.76 of Qanun‑e‑Shahadat, 1984‑‑‑Report of lady doctor about the examination of victim, which was piece of corroborative evidence qua the testimony of victim and eye‑witnesses, was not adverted to by Trial Court, especially when defence did not raise any objection, about the proof of Medico‑legal Certificate‑‑‑Another important corroborative piece of evidence which lost sight of by Trial Court was report of Chemical Examiner, which had shown that anal and Shalwar of victim were found to be stained with semen and blood‑‑‑Trial Court also tell in error in law by advancing reasons to disbelieve prosecution story which conduct was not only fallacious, but also artificial‑‑‑Deliberate effort was made by Trial Judge to discard the ocular testimony of both prosecution witnesses‑‑‑Delay, per se in lodging F.I.R. had never been considered to be a ground for disbelieving prosecution story, particularly in a case where family of victim went into deep‑shock on seeing plight victim‑‑‑Impugned judgment had presented a classic case of perversity of approach adopted for determination of fate of case‑‑‑No other conclusion than the guilt of accused could have been reached in the case of such overwhelming evidence on record‑‑‑Appeal against acquittal was accepted and after setting aside impugned judgment of Trial Court, accused were convicted under S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and were awarded sentence of seven years' R.I.‑‑‑Accused, however, were not found entitled to benefit of S.382‑B, Cr.P.C. in view of brutal conduct of accused.

Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11; Abdul Subhan's case PLD 1994 SC 178; Mir Hassan's case 1999 SCMR 1418 and Muhammad Iqbal's case 1994 SCMR 1928 ref.

Sadaqat Mehmood Butt for Appellant.

Sh. Muhammad Siddiq and Allah Bakhsh Gondal for Respondents.

Raja Abdur Rehman, A.A.‑G. with Tariq Mehmood Ch. Kamboh for the State.

Date of hearing: 11th November, 2004.

2005 P Cr. L J 1232

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, C.J. and Zafar Pasha Chaudhary, J

PERVAIZ MASIH---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No.194/I of 2004, decided on 18th April, 2005.

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

----S. 302---Qanun-e-Shahadat (10 of 1984), Art.38---Appreciation of evidence---Occurrence was unseen and neither anybody was named in the F.I.R. nor suspected---No clue was available as to who was responsible for murder of the deceased---Accused who was already in custody of police in some other case, allegedly had confessed his guilt and had made disclosure to police regarding murder of the deceased--Accused in view of bar contained in Art. 38 of Qanun-e-Shahadat, 1984 had challenged admissibility of confession allegedly made by accused before Police Officer---Under Art. 38 of Qanun-e-Shahadat, 1984 no confession made to Police Officer could be proved against accused of any offence---Evidence of recovery of crime weapon itself being evidence of purely of corroboratory nature, in absence of any direct or substantive evidence same, was not sufficient to bring home charge against accused, particularly when neither Serologist nor Chemical Examiner's reports were produced or tendered in evidence so as to prove that `Chhuri' was blood-stained and if it was so, it had human blood on it and was of same group as was of the deceased---Unless substantive or direct evidence was available, conviction could not be based on any other type of evidence, howsoever, convincing it might be---Prosecution had miserably failed to prove its case against accused and room of doubt being there, benefit of same must go to accused---Conviction and sentence recorded against accused could not be maintained and same was set aside and accused was acquitted of the charge.

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

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

----Art. 40---Penal Code (XLV of 1860), S.302---Information from accused in custody of Police Officer--Proof---Provisions of Art.40 of Qanun-e-Shahadat, 1984 would be pressed into service when recovery of any incriminating article or dead body of deceased in case of murder was recovered by Police Officer at the instance of accused and in consequence of information received from him which, at time, might tantamount to confession as well but if nothing in pursuance of information so received was recovered or information received was not connected with the recovery made, then such information, whether it amounted to confession or not, would be inadmissible---Police Officer was not allowed to place on record merely the fact of his having received some information, unless such information related to discovery of the "fact", which would mean that information so received must directly connect accused with the object recovered.

Bilal Saeed for Appellant.

Aftab Ahmad Khan for the State.

Date of hearing: 18th April, 2005.

2005 P Cr. L J 1316

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, C. J., Dr. Fida Muhammad Khan and S.A. Rabbani, JJ

SHEHZAD AHMAD alias MITHU and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.46/L of 2004, decided on 27th April, 2005.

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

---Ss. 345 & 544-A---Penal Code (XEV of 1860), Ss.302(b) & 310---Compromise between accused and legal heirs of the deceased---Compensation to the heirs of deceased---Legal heirs of deceased, present in the Court, had confirmed execution of compromise deed---Same was accepted by Court and convictions and sentences recorded against accused under S.302(b), P.P.C. were set aside and they were acquitted of charge subject to furnishing surety bonds/undertakings to the effect that they would pay amount of compensation within specified period---Compensation under S.544-A, Cr.P.C. was to be paid for causing death, hurt, injury or mental anguish or psychological damage to any person or for destruction of his property---Use of word "shall" in subsection (1) of S.544-A, Cr.P.C., had denoted that compliance with said provision was not permissive, but imperative and payment of compensation thereunder, was in addition to punishment awarded for the offence---Since "Diyat" was not a sort of compensation, but was a "punishment" as defined in S.53, P.P.C., payment thereof, whether in lieu of sentence of imprisonment or otherwise, would not absolve accused from their responsibility to pay amount of compensation as required under S.544-A, Cr.P.C.---Since payment of compensation under S.544-A, Cr.P.C. was mandatory and was in addition to the sentences inflicted on accused, notwithstanding the fact that accused had already deposited Diyat amount in the name of minor, they were bound to pay amount of compensation---Fact that accused being poor and had meagre monetary resources, amount of compensation was reduced by the Federal Shariat Court accordingly with the direction to accused to deposit amount of compensation in four quarterly instalments within specified period.

Mst. Sarwar Jan v. Ayub and another 1995 SCMR 1679; Muhammad Tufail v. Sessions Judge, Attock and 2 others PLD 2004 SC 89; Muhammad Younis v. The State 2002 SCMR 1308; Muhammad Ameer v. The State 2001 PCr.LJ 1530; Umer Hayat v. The State 1990 PCr.LJ 125 and Muhammad. Hanif v. Abdur Rahman and others 1977 SCMR 471 ref.

Kausar Pervaiz for Appellants.

Anees Muhammad Shehzad for the State.

Date of hearing: 27th April, 2005.

2005 P Cr. L J 1329

[Federal Shariat Court]

Before Sardar Muhammad Dogar, J

QAIM and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeal No.77/K and Jail Criminal Appeal No.161/I of 2000, decided on 2nd August, 2001.

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

----S. 14---Penal Code (XLV of 1860), S.411---Appreciation of evidence---Statements made by complainant and other prosecution witness about accused persons and their absconding co-accused, having committed Haraba and of having taken away buffalo from the house of complainant, did not inspire confidence for the reasons that their statements that in spite of chasing accused on seeing them taking away buffalo, which they had stolen within their view, they failed to apprehend them or recover same in spite of chasing them upto a mile---Complainant had stated that two accused were armed with fire-arms but no allegation was levelled by complainant in the F.I.R. that any of them had fired at them---Complainant though had stated at the trial that one absconding accused had fired a shot at the spot, but that was, not only a glaring improvement, but also found no corroboration from the statement made by prosecution witness---Statements of both complainant and prosecution witness did not inspire confidence and could not be relied upon for maintaining conviction under S.14 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979---Conviction of all accused persons under S.14 of Offences Against Property (Enforcement of Hudood) Ordinance 1979 along with sentences, were set aside---Nothing was recovered from one of accused and he was not shown to be with absconding accused and other accused persons when buffalo was recovered---Said accused could not be held liable for having committed any offence---Another accused was also not claimed to be present when recovery of buffalo was effected, though he was arrested on the day of recovery, but at a different time and at a different place---Recovery of hatchet from said accused did not connect him with the offence of stealing away the buffalo---Buffalo was taken into possession from accused in Jail while being taken away by him and his co-accused (absconder)---Hatched was also found in his possession--Prosecution witness, who made statement on oath about recovery of buffalo from the possession of said accused, was neither inimical to said accused nor related to complainant---Said accused was held guilty of having committed offence under S.411, P.P.C. and sentenced to undergo R.I. for one and half year and period spent by him in jail during trial, would be deducted from sentence awarded to him---Other two accused were acquitted.

Farid Ahmad A. Dayo for Appellants (in Criminal Appeal No.77/K of 2000).

Abdul Waheed Siddiqui for Appellant (in Jail Criminal Appeal No.161/I of 2000).

Fazal-ur-Rehman Awan for the State.

Date of hearing: 2nd August, 2001.

2005 P Cr. L J 1339

[Federal Shariat Court]

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

IFTIKHAR ALI ISANI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No.5-K of 2003, decided on 24th August, 2004.

Criminal Procedure Code (V of 1898)---

----Ss. 200 & 202---Constitution of Pakistan (1973), Art.203-DD---Revision petition---Complaint to Magistrate---Issuance of process---Court while passing order for summoning any person as accused was obliged to take into consideration only the complaint and the evidence/material collected/brought on record during the course of preliminary inquiry under S.202, Cr.P.C.---Any document not forming part of record of inquiry had to be treated to be extraneous and excluded from consideration---Not an iota of incriminating evidence having been brought on record of inquiry proceedings, qua petitioner, it was wholly illegal on the part of Trial Court to pass order for summoning petitioner as accused in the complaint case---Trial Court had acted mechanically and impugned order being outcome of lack of conscious mind to the facts of case, could not be maintained---Revision petition was accepted and impugned order to the extent of summoning petitioner as accused in complaint case, was set aside.

Fareed Ahmed Dayo for Petitioner.

Respondent in person.

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

Date of hearing; 24th August, 2004.

2005 P Cr. L J 1467

[Federal Shariat Court]

Before S.A. Manan, J

ZAHID SAEED---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No. 147-L of 2004, decided on 21st December, 2004.

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

----Ss. 10(2) & 14---Li'an proceedings---Revision had been filed by petitioner against order of Trial Court ordering for Li'an proceedings between petitioner and his wife---Petitioner, in a belated F.I.R. had made allegation that co-accused used to come to his house and had enticed away his wife for purpose of Zina---Contents of F.I.R. had clearly shown that petitioner had levelled serious allegations of Zina against his wife and same were repeated before the High Court---Respondent lady was taken to hospital for her medical examination---Such a plea of petitioner was only made to make allegations of Zina against her without any ambiguity---Final medical report was that respondent lady had given birth to a child and it had been proved beyond any shadow of doubt that petitioner had levelled imputation of Zina against his wife---Trial Court, in circumstances was legally correct to order Li'an proceedings against petitioner under S.14 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979---In absence of any infirmity, order of Trial Court could not be interfered with in revision.

Bakhtiar Said Muhammad v. Mst. Dur-e-Shawar PLD 1986 FSC 187 and 1999 SCMR 935 ref.

Sh. Muhammad Saeed for Petitioner.

Nemo for the State.

Date of hearing: 21st December, 2004.

2005 P Cr. L J 1480

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, C.J., Dr. Fida Muhammad Khan and S.A. Rabbani, JJ

JEHANDAD and 2 others---Applicants/appellants

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.77/I of 2004 in Criminal Appeal No.147/I of 2001, decided on 12th May, 2005.

Constitution of Pakistan (1973)---

----Art. 203-D---Application for summoning of entire record of Military Court---Validity---Trial/proceedings carried out by Special Military Court having been set aside by High Court, which was upheld by Supreme Court and proceedings before Military Court were declared as without lawful authority and of no legal effect, and accused/appellants had been charged and tried afresh by the Sessions Judge, all evidence was recorded again and fate of case hinged on evidence recorded at subsequent trial, prayer contained in application of applicant could not be granted.

Fazal Ellahi Siddiqui for Appellants.

Sher Bahadar Khan for the Complainant.

Sardar Abdul Majeed, Federal Counsel assisted by Muhammad Sharif Janjua, for the State and Lt.-Col. Iqbal Hashmi, Officer Incharge Litigation Cell, G.H.Q.

2005 P Cr. L J 1582

[Federal Shariat Court]

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

Master KHURSHID ALAM---Appellant

Versus

INDRIAS MASIH and 3 others---Respondents

Criminal Appeal No.187-L of 2004, decided 3rd June, 2005.

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

----Ss.10(3), 11 & 16---Constitutional of Pakistan (1973), Art.203-DD---Appeal against acquittal---Alleged victim had alleged that she was subjected to Zina-bil-Jabr by accused, but -she did not express her willingness to get herself medically examined and no explanation was forthcoming in that behalf---No cogent evidence was available that Zina­bil-Jabr was committed with her by the accused---Statement of alleged victim made in Court had shown that she alleged commission of Zina-bil-Jabr against accused at various places, whereas in her statement under S.164, Cr.P.C. she had alleged that it was only during her stay at one place that accused had committed said crime---Such discrepancy had further made prosecution case doubtful---Inordinate delay of two months had taken place in lodging F.I.R. for which no plausible explanation was forthcoming on the record which had shown that F.I.R. was lodged after deliberation and possibility of false involvement of accused, could not be excluded---Dispute had taken place over lease of land between accused and complainant, in lieu of amount received by complainant from accused and thus he was falsely implicated in case---Prosecution had failed to bring home the guilt of accused and they, were rightly acquitted---Appellant could not. point out any misreading/non-reading of material piece of evidence which could have vitiated impugned judgment---No perversity of approach was apparent from record---Prosecution having failed to prove its case against accused beyond doubt, Trial Court had acted justly and fairly in acquitting accused.

Justin Gill for Appellant.

Date of hearing: 3rd June, 2005.

2005 P Cr. L J 1596

[Federal Shariat Court]

Before S.A. Manan, J

MUHAMMAD IMRAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.362/L of 2003, decided on 17th March, 2005.

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

-.--Ss. 4 & 18---Constitution of Pakistan (1973), Art. 14---Appreciation of evidence---Police Officer had only gone to the building to arrest a proclaimed offender and thereafter entered into the room where accused were allegedly residing---Police Officer stated that accused were preparing to commit Zina in the said room---Case was of over indulgence, high-handedness and misuse of power on the part of the police---Police Officer had no authority whatsoever to enter into the room of accused which was separately located; it was amply demonstrated and was clear from the facts that not even one of the ingredients of S.4 of Offence of Zina (Enforcement of Hudood) Ordinance; 1979 was present in the case and police officer had acted without lawful authority and without jurisdiction to register case against accused---Police officer had violated privacy of the accused which was forbidden under Art.14 of the Constitution---Police' officer had transgressed, disregarded and violated provisions of the Constitution, by invading privacy of accused---State Counsel was also of the view that facts of the case did not constitute offence allegedly committed by accused---Police Officer could not enter the house of a private citizen unless possessed with warrants of arrest---No single reason was advanced by the Trial Court for the conviction and sentence of the accused---Issuance of warrants of arrest against co-accused was also without jurisdiction and not legally maintainable---Impugned judgment was set aside, bail bonds of accused were discharged and warrants of arrest issued against co-accused were also discharged.

Nemo for Appellant.

Raja Akhtar Nawaz for the State.

Date of hearing: 17th March, 2005.

2005 P Cr. L J 1722

[Federal Shariat Court]

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

MUHAMMAD ASIF and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeals Nos.94/L, 107/L, 111/L and Criminal Revision No.37/L of 2003, decided on 20th June, 2005.

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

---S. 10(2)---Appreciation of evidence---Statement of the victim regarding occurrence was directly in conflict with the facts stated in the F.I.R.---Non-recovery of the pistol and the motorcycle allegedly used in the occurrence from the accused had falsified the prosecution case---Statement of the victim on which Trial Court had convicted the accused was not convincing, trustworthy and confidence-inspiring---Story of abduction was a lie---Nobody had seen any accused committing Zina with the victim---Victim girl was not recovered from anyone of the accused---None of the accused was proved to have any physical contact with the prosecutrix---Chemical Examiner's report regarding the vaginal swabs of the victim was not a conclusive proof in the absence of other corroborative evidence---No evidence was available on record to connect the accused with the commission of the offence---Accused were acquitted accordingly.

Ch. M.S. Shad for Appellant (in Criminal Appeal No.94/L of 2003).

Khawaja Javaid Ahmad for Appellant " (in Criminal Appeal No. 107/L of 2003).

Justin Gill for Appellant (in Criminal Appeal No.111/L of 2003).

Malik Saeed Hassan and Saleem_ Khan Chaichee for Petitioner (in Criminal Revision No.37/L of 2003).

Raja Abdul Rehman, A.A.-G. assisted by Raja Akhtar Nawaz for the State.

Date of hearing: 26th April, 2005.

2005 P Cr. L J 1747

[Federal Shariat Court]

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

TARIQ MAHMOOD---Applicant

Versus

MEHFOOZ HUSSAIN and 3 others---Respondents

Criminal Miscellaneous Application No.93-I of 2005 in Criminal Appeal No.84/I of 2005, decided on 19th May, 2005.

Criminal Procedure Code (V of 1898)---

----S. 417---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10 & 11---Limitation Act (IX of 1908), Ss. 5 & 29(2)(a)---Appeal against acquittal---Delay, condonation of---Applicant/appellant, had contended that since at the time of passing impugned judgment he was in abroad and no sooner he received the information regarding decision of the case, he rushed back, made application for obtaining certified copy of impugned judgment, but despite his best efforts same were not supplied to him and he had to prefer appeal without the same---Applicant had prayed that delay if any, in filing appeal, could be condoned---Documents attached with application for condonation of delay, including Photostat copy of passport of applicant, had shown that at the time of passing impugned judgment, applicant was away to U.K. and on coming back to Pakistan, applicant had immediately made application for obtaining certified copy of impugned judgment, which had not been supplied to him---Applicant having been diligently pursuing the matter, application for condonation of delay in filing appeal, was allowed and delay was condoned.

State v Zahid Hussain 1990 SCMR 164 ref.

Ansar Nawaz Mirza for Applicant.

Ch. Shafique Ahmad for Respondents.

Shafqat Munir Malik, Asstt. A.-G. for the State.

Date of hearing: 19th May, 2005.

2005 P Cr. L J 1805

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, CJ

GHULAM MUHAMMAD---Petitioner

Versus

THE STATE and 3 others---Respondents

Criminal Revision No.4/Q of 2005, decided on 15th June, 2005.

Juvenile Justice System Ordinance (XXII of 2000)----

----S. 7---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Penal Code (XLV of 1860), Ss.212, 214 & 411---Transfer of case to Juvenile Court ---Application for--Accused, who claimed that at time of occurrence he was not adult, filed application for transfer of his case to Juvenile Court which application was dismissed by the Court observing that since no consistency appeared between accused and report of Medical Board, case of accused did not require to be tried by a Juvenile Court---Since trial of accused was dependant upon determination of his age, Trial Court was bound to record, "finding" within the purview of S.7 of Juvenile Justice System Ordinance, 2000 which had provided, in explicit tern, that inquiry "shall" include a medical report---Trial Court had no option to dispense with, substitute or ignore medical evidence in determining age of accused though certain other factors could contribute to the "finding" and help the Court in reaching at a definite conclusion qua the age of accused---Court was obliged to call for and consider medical report---Primary object of inquiry under S.7 of Juvenile Justice System Ordinance, 2000 was that Court would be able to satisfy itself that a person was really a minor and though the goal could be achieved through various modes i.e. by calling witnesses, perusing birth and educational certificates or Passport etc. of accused, but there appeared logic in calling for medical evidence because same, despite its incapability to determine one's "definite age", could still hint at "Probable age" of accused---No doubt, under S.7 of Juvenile Justice System Ordinance, 2000, duty was cast upon the Court to give its `finding' regarding age of accused, but doing so, a Judge should not ordinarily express himself or use his own knowledge gained otherwise by the means allowed to him by law---Such practice had never been approved---Even in those matters, in which the Court otherwise. was empowered, it was never desired that Judge should take upon him such a duty---If Judge was not satisfied with report of Medical Board or had any doubt regarding age of accused, he should have, instead of abruptly forming an opinion himself, further inquired into the matter or had referred the case again to Medical Board for a second opinion---Impugned order of Trial Court was set aside and with consent of parties, case was remanded to Trial Court for decision of application filed by accused under S.7 of Juvenile Justice System Ordinance, 2000 afresh in accordance with law.

Sultan Ahmad v. Additional Sessions Judge-I PLD 2004 SC 758; Muhammad Zakir v. The State and another 2004 SCMR 121; Hassan Zafar v. The State 2001 PCr.LJ 1930; PLD 1972 Pesh. 27; Sirbaland v. Allah Loke and others 1996 SCMR 575; State (Delhi Administration) v. Pali Ram AIR 1979 SC 14; Dars.1an Singh v. Parbhu Singh and others AIR (33) 1946 Allah. 67; Konda Sesha Reddy and others v. Muthayala China Pullaiah and another AIR 1958 Andh. Pra. 595 (V 45 171); Superintendent and Remembrancer Legal Affairs, Bengal, Purna Chandra Ghosh AIR 1924 Cal. 611; Mt. Bibi Kaniz Zainab and others v. Syed Mobarak Hossain and others AIR 1924 Pat. 284; Azmat Ullah Khan and another v. M. Shiam Lal and another AIR (34) 1947 All. 411 and Akamat Ali Khandakar and another v. Abdul Hai Kazi and others PLD 1957 Dacca 165 ref.

Najeeb Ullah Khan for Petitioner.

Sheikh Ghulam Muhammad for the State.

Date of hearing: 15th June, 2005.

2005 P Cr. L J 1933

[Federal Shariat Court]

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

SHAHZAD ASHRAF and another---Appellants

Versus

THE STATE---Respondent

Jail Criminal Appeal No.182/L of 2003, Criminal Appeal No.250/L of 2003 and Criminal Revision No.84/L of 2003, decided on 17th January, 2005.

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

----S. 10(3)---Appreciation of evidence---Accused pleaded in his statement under S.342, Cr.P.C. that he had validly contracted Nikah with victim girl---Complainant lodged F.I.R. at Woman Police Station at "F" while alleged Nikah took place within area of Police Station at "S"---F.I.R. was lodged 14 days prior to alleged Nikah which had clearly proved case of prosecution that after abduction, alleged Nikah was performed and it was abundantly proved that accused was committing Zina with the victim without she being his valid wife---Plea of accused that he had contracted a valid Nikah with victim, fell to ground, in circumstances---Co-accused who appeared on behalf of victim in alleged Nikah, had also proved to have abetted commission of offence---Documentary evidence on record revealed that, it was amply proved that judgment of Trial Court convicting and sentencing accused and his co-accused was valid and no legal infirmity was found in the impugned judgment---Jail appeal jointly filed by accused and co-accused, was rejected, in circumstances.

Shahid Zaheer Syed for Appellant (in Jail Criminal Appeal No.182/L of 2003).

Zafar Iqbal Chohan for Appellant/Petitioner (in Criminal Appeal No.250/L of 2003 and Criminal Revision No.84/L of 2003).

Miss Marina Parveen Chaudhry for the State.

Date of hearing: 17th January, 2005.

2005 P Cr. L J 1970

[Federal Shariat Court]

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

TORDI KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.87/I of 2005 in Criminal Appeal No.57/I of 2005, decided on 19th September, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 428 & 172---Qanun-e-Shahadat (10 of 1984), Art.2(c)---Application to bring on record daily progress reports of police as additional evidence---Applicant had prayed that daily progress reports of police being essential for just decision of case, could be allowed to be brought on record as additional evidence---Validity---Documents not formally admitted in evidence and available on judicial file, police file or elsewhere even, could, for the purpose of elucidation of certain facts, be looked into, but progress reports sought to be taken as additional evidence, which were characterized as "Special Diaries" could, by no stretch of imagination, be termed as "evidence" within purview of Art.2(c) of Qanun-e-Shahadat, 1984 and allowed to be placed, on record, in view of bar contained in S.172, Cr.P.C.---Police diaries although could be used in a case under trial by the Court for the limited purpose of seeing as to what was the time of investigation of a case and at times it could also be used for clearing up obscurities in the case, but it could not be used to test the correctness of statements by witnesses on oath nor could it be taken as evidence in a case because it being merely opinion of police officer, could not be made basis for finding of the Court; but could be looked into at proper stage and time, if deemed appropriate by the Court.

Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95 and Muhammad Arshad Naseem v. The State 2004 PCr.LJ 371 ref.

Sardar Muhammad Ishaq Khan for Applicant/Appellant.

Shafqat Munir Malik, Asstt. A.-G. for the State.

Date of hearing: 19th September, 2005.

2005 P Cr. L J 1988

[Federal Shariat Court ]

Before Ch. Ejaz Yousaf, CJ

ADAM KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.15/I of 2005, decided 22nd September, 2005.

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

----S. 516-A---Penal Code (XLV of 1860), S.395---Obtaining case property on Superdari---Revision had been directed against judgment of Trial Court whereby four accused were convicted for committing dacoity with the order that case property i.e. gold ornaments, cash and watches etc. be 'kept intact till arrest and trial of proclaimed offenders-Contention of petitioner was that as case property belonged to him, Trial Court while deciding case, ought to have returned same to him---Petitioner had admitted that during trial, an application for Superdari was made by him, but subsequently it was withdrawn by him and that thereafter he had not approached the Court in that respect---Trial Court while ordering for keeping case property in custody till arrest and trial of proclaimed offenders, had in fact deferred its decision regarding disposal of case property and rightly so because at relevant time there was no claimant before it---Had application for custody of property on Superdari, filed by petitioner, not been withdrawn, Trial Court would have certainly passed some order thereon either while passing impugned judgment or separately because case being not "finally decided" and pending against proclaimed offenders, jurisdiction of Trial Court to their extent was definitely intact---Court, while dealing with "case", had to take cognizance of "offences" and not of "offenders"---If the case to the extent of a particular accused was decided then it could not be said that the Court ceased to have jurisdiction over the matter with regard to remaining accused persons as well.

(b) Words and phrases---

----"Case"---Connotation---In legal sense though the words case',cause' or action' were interchangeable terms, but in common parlance the wordcase' was more comprehensive and enfolded not only a decision on a particular issue or with regard to an accused, but also included determination of matters ancillary thereto or connected therewith.

Shah Nawaz Asim for Petitioner.

Muhammad Sharif Janjua for the State.

Date of hearing: 22nd September, 2005.

2005 P Cr. L J 1

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

NASIR KHAN and others---Appellants

Versus

THE STATE---Respondent

Crl. J. A. No. 130 of 2002, decided on 28th April, 2004.

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

----Ss. 428 & 516-A---Control of Narcotic Substances Act (XXV of 1997), Ss.47 & 48---Additional evidence---Production of---If Appellate Court, while dealing with appeal, would think that additional evidence was necessary, it would record its reasons and could either take such evidence itself or direct it to be taken by Magistrate or where Appellate Court was High Court, by a Court of Session or Magistrate---Documents sought to be produced in case as additional evidence, were concerning the destruction of the property and were also essential to the just decision of the case---Non-production of samples of property recovered and related documents in the Court, having caused a failure of justice same was to be rectified---Additional evidence in the case being necessary and essential to the just decision of case, was allowed to be produced accordingly.

Jamil Khan Afridi v. State 2004 MLD 542 ref.

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

----S. 428---Production of additional evidence---Object of S.428, Cr.P.C.---Main object of S.428, Cr.P.C. relating to production of additional evidence was that a guilty person should not escape through carelessness or ignorant proceedings of the Trial Court, or innocent person should not be wrongly accused when the Court, through same carelessness of ignorance, had omitted to record the circumstances essential to explain or reach at the truth---Another object of said section was. to save public time by taking any additional evidence necessary instead of remanding whole case for examining again 'the witnesses already examined---Section 428, Cr.P.C. was not meant for either of the parties to a criminal case, but its object was to see that justice was done---Section 428, Cr.P.C. could be pressed into service for the ends of justice whenever it was required either for prosecution or for defence, keeping to view requirement of Society because before a criminal Court there was always a third-party namely the Society.

Akhtar Hussain v. Emperor AIR 1925 Pat. 526; State v. Jai Parkash AIR 1954 All. 129; 18 W.R. 31 and Ishwar Prasad v. Emperor AIR 1918 All. 133 ref.

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

----S. 428---Production of additional evidence---Powers of High Court--­Object of S.428, Cr.P.C. was to empower the Appellate Court to see that justice was done between prosecution and prosecuted and if Appellate Court found that certain evidence was necessary for the correct finding, it would take action---Essential ingredients of S.428, Cr.P.C. was that when the Court would think that additional evidence was necessary, then for reaching that opinion, reasons were to be recorded---Word `necessary' appearing in S.428, Cr.P.C. would not mean that it was impossible to pronounce judgment without additional evidence---Power to record additional evidence at the appellate stage was to be exercised only where additional evidence either was not available at the Trial or party concerned was prevented from producing same by circumstances beyond its control or by reason of misunderstanding or a mistake.

Dildar v. The State PLD 2001 SC 384; Fazal Ilahi v. Crown PLD 1952 Lah. 388 and Barkat Ali v. Crown 1969 SCMR 448 ref.

Nadeem Shah, Special Prosecutor, A.N.F.

Date of hearing; 28th April, 2004.

2005 P Cr. L J 12

[Karachi]

Before Zahid Kurban Alvi, J

AMANULLAH --- Applicant

Versus

THE STATE---Respondent

Crl. Rev. Appln. No.S-13 of 2001, decided on 23rd April, 2001.

Criminal Procedure Code (V of 1898)---

----Ss. 435, 439 & 514---Constitution of P4kistan (1973), Art.203-DD--­Revisional jurisdiction of High Court---Scope---Revision petition filed before High Court against order of Sessions Judge imposing penalty upon petitioner who stood surety for accused, was challenged on ground that only Federal Shariat Court had revisional jurisdiction in respect of cases decided by any Criminal Court in connection with law relating to Enforcement of Hudood---Validity---Matter in the case was not stricto senso pertaining to the case decided under Hudood Laws, but revision was filed against order of Sessions Judge whereby penalty was imposed on petitioner/a surety of accused who could not produce the accused and his bail bond was forfeited---Imposition of penalty on petitioner being Arsh, objection was set aside and notice was issued, so that matter could be disposed of on merits.

Sakhi Dost Jan v. Pakistan Narcotic Control Board 1998 SCMR 1798 ref.

Altaf Hussain Surahio for Applicant.

Mushtaque Ahmed Korejo for the State.

Date of hearing; 23rd April, 2001.

2005 P Cr. L J 16

[Karachi]

Before Zahid Kurban Alvi, J

JAMAL---Applicant

Versus

THE STATE---Respondent

Crl. Bail Application No.636 of 2002, decided on 30th May, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324---Bail, grant of--­Absconder ---F.I.R. showed that complainant had attributed injury caused to him to a person other than the accused---Only role attributed to accused was that he was also present at the time of incident---Bail application of accused was dismissed by Trial Court on the ground that accused was an absconder and was not entitled to concession of bail--­Even if accused was absconder, but if he applied for bail subsequently after being arrested, then the Court had to consider whether he was entitled to bail on the facts relating to incident or not---No overt role had been attributed to accused---Accused, held, was entitled to bail, especially when he remained behind the bars without any proceedings in the case for more than a year.

Jai Jai Veshno for Applicant.

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

Date of hearing: 30th May, 2003.

2005 P Cr. L J 17

[Karachi]

Before Ghulam Nabi Soomro, J

ABDUL KAREEM alias KAREEM BUX and 4 others---Applicants

Versus

THE STATE---Respondent

Crl. Misc. Appln. No.S-146 of 2002, decided on 25th April, 2003.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.302/114/148/149---Pre-arrest bail, grant and confirmation of---Three Investigating Agencies, declared accused innocent and they were released under Ss.497 and 169, Cr.P.C. prior to submission of challan---Out of four, opinion of three Investigating Officers, was in favour of accused---Courts though were not bound by the ipsi dixit of police, but their findings could be considered and scrutinized in relation to its weight---Incident occurred at 7.45 p.m. in the month of May and prosecution witnesses were stated to be having each, a torch in his hand in the light of which they saw deceased sitting on the ground, which fact had shown that sunlight was not available at time of occurrence---All accused, except one, being Government servants, were not likely to abscond---Interim bail granted to accused, was confirmed on the same terms and conditions, in circumstances.

1978 SCMR 242; 1986 SCMR 1978; 1986 PCr.LJ 460; 1991 SCMR 1630; 1992 SCMR 600; 1993 SCMR 2288; 1994 PSC 570; PLD 1996 SC 589; 1997 SCMR 1829; PLD 1966 SC 589; PLD 1974 SC 83; 1979 SCMR 101; PLD 1985 SC 1949; PLD 1985 SC 402; 1988 SCMR 1; 1988 SCMR 1743 and PLD 1998 SC 97 ref.

Imdad Ali Awan and Rana Asif Kamal for Applicants.

Habibullah Shaikh for the Complainant.

Ghulam Shabbeer Shar for the State.

2005 P Cr. L J 31

[Karachi]

Before Rahmat Hussain Jafferi, J

AYAZ AL -Petitioner

Versus

THE STATE -Respondent

Crl. Bail Application No.S-297 of 2004, decided on 29th June, 2004.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/16---Pre-arrest bail, grant of---Further inquiry---Alleged abductee had not supported prosecution case and instead she clearly stated in her statement made under S.164, Cr.P.C. that she was not abducted by the accused and that she was wife of the accused---Nikah Nama produced on record had shown that alleged abductee and accused had contracted marriage---Police had recommended the case to be disposed of under B-class and the summary was pending before Magistrate for passing orders---Complainant could not prove that alleged abductee was already married to a person other than the accused---Said point, however could be examined at the time of trial when parties would lead evidence on their respective points---Case of accused requiring further inquiry within the meaning of S.497(2), Cr.P.C., accused was entitled to concession of bail.

Jai Jai Veshnu Mange Ram for Petitioner.

M.I. Bhutto for the State.

Date of hearing: 29th June, 2004.

2005 P Cr. L J 38

[Karachi]

Before Maqbool Baqar, J

SHABIR alias GHULAM SHABIR---Applicant

Versus

THE STATE---Respondent

Crl. Bail Appln. No.S-83 of 2004, decided on 12th April, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/34---Bail, grant of--­No overt act had been assigned to accused---Accused, who, was not armed, had merely been stated to be accompanying a person who allegedly fired direct shot at the father of complainant which proved fatal---Vicarious liability of accused could be established only after recording the evidence---Accused was in custody since 2000 and case had made no progress inasmuch as even charge had not been framed--­Accused was admitted to bail, in circumstances.

Jai Jai Veshno, Mange Ram and Asif Kamal R. Nara for Applicant.

Abdul Sattar Soomro for the State.

Date of hearing; 12th April, 2004.

2005 P Cr. L J 60

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

REHMATULLAH and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 104, 39, 206 of 2001 and Criminal Jail Appeals Nos.31 and 205 of 2001, decided on 16th April, 2004.

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

----S. 396---Appreciation of evidence---Complainant was cousin of the two prosecution witnesses---All prosecution witnesses were related inter se---Statements of prosecution witnesses were contradictory to each other and it appeared that they were suppressing true facts so as to make their presence at the land in question from the start of rotation of water---Time with regard to occurrence, as given by witnesses was not fitting in the circumstances of case---Complainant in the beginning had disclosed that he was driving motorcycle on which deceased was sitting on the rear seat---Complainant deposed such facts in his examination-in-chief, but subsequently he changed his version by disclosing that deceased was driving the motorcycle and he was sitting on its rear seat---Both complainant and deceased were sitting on motorcycle when firing was made by accused on deceased, but surprisingly only deceased had received injuries and complainant did not receive any injury or any damage was caused to motorcycle---All three prosecution witnesses gave different versions which were not fitting in the circumstances of case--­Seat of injuries as given by Medical Officer were not corresponding with seat of injuries given by witnesses---Ocular testimony, in circumstances was in direct conflict with medical evidence and was not fitting in circumstances of case---Scrutiny of evidence had revealed that ocular testimony was highly doubtful and it was very unsafe to rely upon such type of evidence---Contention of defence that witnesses were not present on the date, time and place of incident, was not unfounded---Complainant did not state that he was present at the place of arrest of accused or that accused was arrested in his presence and in presence of other prosecution witness, but he had deposed that when he reached the place of incident along with police prosecution witness was already present there--­Investigating Officer appeared to be highly interested in the matter and he collected evidence which was hearsay and was not supported or corroborated by other piece of evidence which had created doubt in fairness of investigation---Ballistic Expert's report had shown that he received articles after one year of recoveries, and no explanation was furnished by prosecution for such delay---As prosecution had failed to prove its case, and evidence given in defence when taken into consideration in juxta-position with prosecution story, story furnished by accused appeared to be more plausible and genuine and same could be taken into consideration---One of co-accused was found innocent and case against him and other co-accused was found doubtful---Case of prosecution being highly doubtful, accused were entitled to benefit of doubt---Conviction, and sentence awarded to accused by Trial Court were set aside and they were acquitted of the charge and were set at liberty.

Karim Bibi v. Station House Officer, P.S. Rajana 1985 PCr.LJ 213; Muhammad Irshad v. State 1999 SCMR 1030; Yameen Kumbhar v. State PLD 1990 Kar. 275; Allahando v. State 1969 SCMR 714; Naubat v. State 1981 PCr.LJ 131 and Muhammad Mushtaq v. State PLD 2001 SC 107 ref.

(b) Criminal trial---

---- Benefit of doubt---Doubt was always to be resolved in favour of accused.

Nooruddin Sarki, Khaldoon Ishaq and Ubedullah Abro for the Appellants.

Wahid Bux Baloch for the Complainant.

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

2005 P Cr. L J 89

[Karachi]

Before S. Ahmed Sarwana and Muhammad Afzal Soomro, JJ

Mian ABDUL MANAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.D-277 of 2001, decided on 28th June, 2002.

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

----S. 498---Penal Code (XLV of 1860), Ss.109/114---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/11/16---Pre-arrest bail, grant of---F.I.R. was lodged with the delay of more than three and half months for which no plausible explanation was furnished--Incident according to F.I.R., though took place in broad-daylight in the heart of town near police station, but instead of parents of alleged abducted girl, S.H.O. of concerned police station lodged F.I..R. and that too with a delay of more than three and half months---Excuse regarding non-lodging the F.I.R. by parents of alleged abductee due to fear, did not appear to be a justifiable ground as delay of one to 24 hours had consistently, been considered doubtful in cases, like the present one---Accused had apprehended imminent danger of his arrest at the hands of police as police had raided his house for so many times since last few days with mala fide intention on politically motivated grounds for ulterior motives and intended to cause damage to his reputation, respect and honour---Interim bail granted to accused was confirmed, in circumstances.

State v. Syed Qaim Ali Shah 1992 SCMR 2192; Sardar Imdad Khan v. The State 1996 PCr.LJ 272; Dr. Muhammad Shoaib Suddle, D.I.-G. Police Karachi and others v. The State 1997 SCMR 1234; Muhammad Gul and another v. The State 1985 PCr.LJ 205; Nadeem Hamid v. The State PLD 1997 Kar. 494; Mirza Jawad Beg v. The State PLD 1975 Kar. 628; Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82 ref.

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

----S. 497(2)---Bail, basic conception of---Further inquiry---Basic conception of bail was that no innocent person's liberty was to be curtailed, until and unless proved otherwise---Principle of law was that every accused was an innocent person until his guilt was proved which required further inquiry.

Imdad Ali Awan and Rana Asif Kamal for Applicant.

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

Date of hearing: 28th June, 2002.

2005 P Cr. L J 105

[Karachi]

Before Ghulam Nabi Soomro and Muhammad Afzal Soomro, JJ

ABDUL KAREEM---Applicant

Versus

SPECIAL JUDGE, ANTI-TERRORISM ACTIVITIES COURT, LARKANA and Sukkur Division at Sukkur and another---Respondents

Criminal Miscellaneous Application No.D-234 of 2001, decided on 27th May, 2003.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Anti-Terrorism Act (XXVII of 1997), S.25(3)---Contempt of Court Act (LXIV of 1976), S.3---Setting aside order of conviction--­Converting petition into appeal---Provision of appeal having been provided in Anti-Terrorism Act, 1997, petition for setting aside order filed under S.561-A, Cr.P.C. was converted into appeal under S.25(3) of Anti-Terrorism Act, 1997---Appellant/petitioner being an Advocate while acting as defence Advocate purportedly made statement before Trial Court that one of prosecution witnesses, despite being available on his shop, did not appear before the Court to give evidence---Document filed by complainant had shown that said prosecution witness on relevant day/date of hearing had appeared in M.B.,B.S. examination at other place L' in view of said documents, Trial Court issued show-cause notice to appellant calling upon him to explain why he should not be sentenced for contempt---Appellant submitted reply of said show-cause notice on the same day wherein he repeated that said prosecution witness despite being available had avoided to appear before the Court--­Appellant prayed for mercy and unconditional apology, which was not accepted by the Court and appellant was convicted and sentenced---Said prosecution witness was to appear at other placeL' in his M.B.,B.S. examination which was to commence from 2 p.m. to 5 p.m. and not earlier and could be available in the Court at place M' in the morning hours and he could also reach at placeL'/place of his examination within about two hours thereafter as examination was to start at 2 p.m.---Appeal was accepted and order convicting and sentencing passed by Trial Court against appellant, was set aside---Amount of fine recovered from accused was ordered to be returned to him.

Imdad Ali Awan and Rana Asif Kamal for Appellant.

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

Date of hearing: 27th May, 2003.

2005 P Cr. L J 147

[Karachi]

Before Sarmad Jalal Osmany and S. Ali Aslam Jafri, JJ

GUL BEG alias NANGI---Applicant

Versus

THE STATE---Respondent

Cr. Bail A. No.286 of 2003, decided on 15th January, 2004.

Criminal Procedure Code (V of 1398)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/337-H(ii)/147/148/149---Bail, grant of---Accused was continuously in custody for the last more than four years and trial of his case had not been concluded---Delay per se, though was no ground for grant of bail, but in cases where it appeared to be shocking and scandalous, as in the present case the Court could exercise its discretion in favour of accused---Case for grant of bail having been made out, accused was admitted to bail.

Riasat Ali and another v. The State PLD 1977 SC 480; Sanam Shah and 10 others v. The State 1986 PCr.LJ 2947; Mumtaz and 13 others v. The State 1992 PCr.LJ 2325 and Muhammad Sadiq v. Muhammad Shafi and others 1973 SCMR 212 ref.

Jai Jai Veshno for Applicant.

Mushtaq Ahmed Kourejo for the State.

Date of hearing: 20th November, 2003.

2005 P Cr. L J 162

[Karachi]

Before Mushir Alam and Muhammad Sadiq Leghari, JJ

ABDUL RAUF---Appellant

Versus

THE STATE---Respondent

Special Anti-Terrorism Appeal No.20 of 2001, decided on 26th August, 2004.

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

----S. 401---Penal Code (XLV of 1860), S.392---Anti-Terrorism Act (XXVII of 1997), S.6---Remission of sentence---Applicant had alleged that due to grant of remission for about more than three years, he had completed sentence by remaining in jail since January, 2001, but he was not being released by Jail Authorities---Jail Roll of accused, showed that remissions allowed to applicant till the start of June, 2001 were only ten months and twenty days which benefit was extended to him---Applicant had yet to serve out three years, three months and twenty seven days as unexpired sentence---Applicant having failed to place on record any material showing grant of remission more than what was shown in the Jail Roll, his application being meritless, was dismissed.

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

----S. 400---Return of warrant on execution of sentence---Under provisions of S.400, Cr.P.C., entire period of sentence served out by a convict together with the details of remissions awarded to him was to be submitted before the Court which initially had convicted accused and sent him with warrant of conviction---Warrant had to be returned after sentence had been duly executed---Controversy, if any, relating to execution of warrant of conviction had to be dealt with by that Court in accordance with law---Practice of rushing to High Court not to be encouraged or approved.

Khawaja Naveed Ahmed for Appellant.

Habib Ahmed, Asstt. A.-G. Sindh for Respondent.

Date of hearing: 2nd July, 2004.

2005 P Cr. L J 191

[Karachi]

Before Amir Hani Muslim, J

MIANDAD---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No.96 of 2001, decided on 4th August, 2004.

Criminal Procedure Code (V of 1898)---

----Ss.161, 435 & 439---Fxamining Investigating Officer first---Grievance of applicant was that Investigating Officer had been examined prior to 13 other prosecution witnesses and that Trial Court had given its mind that once Investigating Officer was examined, applicant would not be allowed to recall Investigating Officer even on making of application---Investigating Officer normally was examined in last in order to give accused opportunity to confront prosecution witnesses or their testimony with 161, Cr.P.C. statements recorded by investigating Officer during investigation---No prejudice would be caused to the either party if Investigating Officer, who was examined before other prosecution witnesses, was recalled on application of accused---Trial Court could examine witnesses in order of precedence as the prosecution intended to, but if Investigating Officer was allowed to be examined prior to other prosecution witnesses, applicant would have the right to make appropriate application on conclusion of prosecution evidence for recalling Investigating Officer in order to confront him with evidence of prosecution witnesses recorded by him under S.161, Cr.P.C.---Law did not debar applicant from making such application if need would so arise---Direction was given to Trial Court that applicant would have right to recall Investigating Officer for the purpose of confronting him with evidence of prosecution witnesses with 161, Cr.P.C. statement recorded by him.

Shaukat H. Zubedi for Applicant.

Sadaruddin Qureshi for A.-G. for the State.

Date of hearing: 4th August, 2004.

ORDER

Learned counsel for the State concedes to the proposition that in the normal course the Investigating Officer is examined in the last but there is no bar in law to examine the Investigating Officer before other prosecution witnesses are examined and it is within the domain of the party leading evidence to chose the order of precedence of its witness. However, in criminal trial the Investigating Officer is examined normally in last in order to give the accused opportunity to confront the prosecution witnesses or their testimony with the 161, Cr.P.C. statements recorded by the Investigating Officer during investigation. There is no prejudice caused to either party if the Investigating Officer, who is examined before other prosecution witness, is recalled on application of the accused.

The grievance of the applicant appears to be that the Investigating Officer has been examined prior to 13 others prosecution witnesses and the learned trial Court has given its mind that once the Investigating officer is examined the applicant will not be allowed to recall the Investigating officer even on making of such application. According to the learned counsel for the applicant that if the applicant is denied the opportunity of recalling the Investigating Officer in order to confront him with the evidence of the prosecution witnesses and statements under section 161, Cr.P.C. recorded by him, it will be unjust. The trial Court may examine the witness in order of precedence as the prosecution intends to but at the same time, if the Investigating Officer is allowed to be examined prior to other prosecution witnesses the applicant shall have the right to make appropriate application on conclusion of the prosecution evidence for recalling the Investigating Officer in order to confront him with the evidence of prosecution witnesses with the 161, Cr.P.C. statements of the prosecution witnesses recorded by him. The law does not debar the applicant from making such application if need so arises. This criminal miscellaneous application along with the listed application is disposed of with the direction to the trial Court that if the prosecution witnesses are examined subsequent to the examination of the Investigating Officer, the applicant shall have right to recall the Investigating Officer for the purpose of confronting him with the evidence of the prosecution witnesses with the 161, Cr.P.C. statements recorded by him.

H.B.T./M‑142/K Order accordingly.

2005 P Cr. L J 208

[Karachi]

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

NOORUDDIN and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.73, 74 and 75 of 2003, decided on 26th February, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 365 & 324‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13(d)‑‑‑Appreciation of evidence‑‑‑All witnesses excluding two private persons, were police officials and said two private persons had .not implicated accused by any cogent and concrete evidence‑‑‑Trial Court had disbelieved version of prosecution in respect of acquitted co‑accused against whom allegation was that he overpowered driver of coach in question, took possession of driving seat and drove coach toward Agricultural Farm‑‑‑Trial Court, on the one hand had ordered that sentence awarded to accused would run concurrently and on the other hand it calculated entire sentence awarded to accused and gave a specific total figure of sentence as 38 years‑‑‑Apparently judgment was not passed by Trial Court with complete presence of mind‑‑‑Trial Court in its overzeal awarded sentence of ten years to accused for no offence allegedly committed by them‑‑‑More than one circumstances were in the case creating doubt in prosecution story‑‑‑Even a single circumstance creating a doubt in the prudent mind, would be sufficient to extend benefit of doubt to accused which was to be given to them as a matter of right‑‑‑No concrete evidence being available on record to maintain judgment of Trial Court and to uphold conviction of accused, same was set, aside and accused were acquitted.

Allah Bachayo Soomro for Appellants.

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

Date of hearing: 26th February, 2004.

2005 P Cr. L J 215

[Karachi]

Before Muhammad Afzal Soomro, J

ABDUL GHANI and others‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.554 of 2004, decided on 31st August, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Explosive Substances Act (VI of 1908), Ss.4/5‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑‑‑Bail, refusal of‑‑‑Accused were arrested red‑handed while they were making plan for creating chaos in the city through terrorism which was increasing day by day and the lives of the innocent persons had been exposed to serious risk‑‑­Incriminating articles recovered from the possession of accused were dangerous explosive material which could easily be used for terrorism‑‑­Prosecution had applied West Pakistan Arms Ordinance, 1965 upon incriminating articles i.e. mouser and pistol etc. recovered from accused whereas provisions of Explosive Substances Act, 1908 had been applied on recovery of hand grenades from accused‑‑‑Bail application was dismissed in circumstances.

Muhammad Younus and another v. The State 2001 PCr.LJ 157; Bihar Ali v. The State 2002 PCr.LJ 124 and Aftab Ahmed v. The State 2004 MLD 1337 ref:

Muhammad Ilyas Khan for Applicants.

Habibur Rasheed for the State.

Date of hearing: 25th August, 2004.

2005 P Cr. L J 237

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

ABDUL RAZZAK‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Cr. Jail Misc. No.94 of 2004, heard on 14th September, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 397‑‑‑Penal Code (XLV of 1860), S.318‑A‑‑‑Sentences to run concurrently‑‑‑ Applicant/accused in his application had requested that sentences awarded to him in three cases be ordered to run concurrently‑‑­Accused was tried in three different cases and in each case he was convicted for an offence of punishable under S.318‑A, P.P.C. and was sentenced‑‑‑Trial Court took into consideration provisions of S.397, Cr.P.C. and rejecting application of accused refrained from allowing such benefit‑‑‑Validity‑‑‑Accused had faced trial in three distinct and different offences which were committed on different dates‑‑‑Cases against accused related to theft of motor cycles, which was an alarming menace for middle class people‑‑‑Trial Court, in circumstances was justified in declining benefit of S.397, Cr.P.C. to accused while pronouncing second judgment‑‑‑No reason was available to interfere with order of Trial Court‑‑‑In absence of any new ground calling for exercise of discretion within the meaning of S.397, Cr.P.C., application filed by accused was dismissed.

Gulzar Muhammad v. Crown PLD 1950 Lah. 497; Bashir v. The ­State PLD 1991 SC 1145 and Sikandar Ali alias Sikooo Sheikh v. The State 2003 Kar. 260 ref.

Applicant present in custody.

Habib Ahmed, A.A. ‑G. for the State.

Date of hearing: 14th September, 2004.

2005 P Cr. L J 241

[Karachi]

Before Ghulam Nabi Soomro, J

MUHAMMAD SHAHBAZ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.401 of 2002, decided on 14th November, 2003.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 392‑‑‑Appreciation of evidence‑‑‑Head Constable of Police Station who was on duty near place of incident when found some persons following accused who ran after committing robbery also followed accused and succeeded in apprehending him and also recovered from him robbed money‑‑‑Head Constable also acted as Mashir of arrest and recovery‑‑‑No enmity was alleged between accused and prosecution witnesses nor any motive for false implication of accused was disclosed‑‑­Non‑examination of complainant would not be fatal to prosecution because other employee of Institution concerned who was also eye­witness had deposed what complainant would have also deposed‑‑‑Private person having acted as Mashir of arrest and recovery, contention regarding non‑compliance of S.103, Cr.P.C., was repelled‑‑‑Evidence brought on record being sufficient to prove his guilt, Trial Court had rightly convicted and sentenced accused.

Raja Sikandar Khan Yasir for Appellant.

Jalil A. Zubedi for the State.

Date of hearing: 14th November, 2003.

2005 P Cr. L J 248

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

LUQMAN RAJI ADEWUNMI‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.992 of 2003, decided on 23rd April, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Control of Narcotic Substances Act (XXV of 1997), S.9(c)‑‑­Bail, refusal of‑‑‑Question raised about identity of accused through Passport and other documents, would required deeper appreciation of evidence which could not be done at bail stage and affidavit of wife of accused about his identification could better be considered by Trial Court at trial‑‑‑Non‑association of private and independent witness in the case by itself was no ground for bail, particularly when it was said that efforts were made for procuring person, from public, but they declined‑‑‑Delay in submission of challan within the period prescribed under S.173, Cr.P.C., though was acceptable as a ground for bail, but it could not be accepted when prima facie sufficient evidence was available to connect the accused with offence of possession of 7 Kgs. of heroin‑‑­Bail plea raised by accused being without merits, same was dismissed.

Muhammad Shafi v. Muhammad Anwar 1975 SCMR 219; Gul Hassan Dero v. State 2000 PCr.LJ 657; Liaquat Ali v. State 2000 PCr.LJ 1317; Hadi Bux v. State 2000 PCr.LJ 714; Amir Hayat v. State 1999 PCr.LJ 1529; Muhammad Yasin v. State 1999 PCr.LJ 1295; Muhammad Adam v. State 1997 PCr.LJ 1736; Asif Ali v. State 2003 PCr.LJ 540; Tariq Bashir v. State PLD 1995 SC 34; Muhammad Hanif v. State 2003 SCMR 1237; Gul Zaman's case 1999 SCMR 1271; Aslam Khan's case 1999 PCr.LJ 582 and Amir's case PLD 1972 SC 277 ref.

Rana M. Shamim for Applicant.

Mehmood Alam, Rizvi, Special Prosecutor, A.N.F. for the State.

2005 P Cr. L J 259

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

JIANDAL SHAH and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Cr. B.A. No.744 of 2004, decided on 29th November, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4‑‑‑Pre‑arrest bail, grant of‑‑‑Article 3 of Prohibition (Enforcement of Hadd) Order 1979, prima facie was not applicable against accused whereas Art.4 of said order was bailable ‑‑‑Allegation in the F.I.R. was that accused succeeded in escaping from clutches of raiding party which consisted of 7 persons‑‑‑Accused had succeeded in escaping from clutches of raiding party at the relevant time did not appeal to reasons‑‑‑Pre‑arrest bail already granted to accused, was confirmed on the same terms and conditions‑‑‑Accused, however were directed to join Trial Court.

Irfan Ahmed Qureshi for Applicants.

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

2005 P Cr. L J 272

[Karachi]

Before Ata‑ur‑Rehman and Sarmad Jalal Osmany, JJ

ASHRAF alias ASHROO and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 174 of 1996, decided on 31st August, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34‑‑‑Appreciation of evidence‑‑‑Major contradiction was found among some of the eye‑witnesses regarding the arrival/presence of police party (available in the police mobile) at the scene of the incident‑‑­Encounter having lasted for about 10 to 15 minutes, it would be quite difficult to recognize culprits in the light of the moon as the culprits were firing from the sugarcane cultivation‑‑‑At least six police personnel and three culprits allegedly took part in the encounter, but only a few empties were recovered and no harm came to the camels and neither police mobile was damaged‑‑‑Said contradictions in the prosecution case plus the fact that it was a night time incident, had raised grave doubts in the matter‑‑‑Identification test of one of accused was held after a delay of one week from his arrest and of other accused was held after more than two weeks of his arrest and there were chances that all the witnesses who had picked up accused in identification test, had seen accused before identification test‑‑‑Such identification test could not be accepted as a good piece of evidence in order to convict accused‑ ‑‑Prosecution having not been able to fully prove the charges against accused beyond any reasonable doubt, appeal against order of Trial Court whereby accused were convicted and sentenced, was allowed.

Amanullah v. The State PLD 1978 Kar. 792; Lal Pasand v. The State PLD 1981 SC 142; Malhi v. The State 1968 SCMR 1077 and Kirir v. The State PLD 1996 Kar. 246 ref.

Hidayatullah Abbasi for Appellants.

Muhammad Azeem Panhwar for the State.

Date of hearing: 11th August, 2004.

2005 P Cr. L J 367

[Karachi]

Before Muhammad Moosa K. Leghari, J

GHULAM HUSSAIN and .2 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

M.A. No. 1905 of 2000 in Cr. Appeal No. 188 of 2000, decided on 13th December, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 426‑‑‑Penal Code (XLV of 1860), Ss. 337‑A(i), (ii), 337‑F(i) & 337‑L(ii)‑‑‑Suspension of sentences‑‑‑Application for‑‑‑Out of seven accused persons one was absconding and six were tried and out of said six accused persons three were acquitted by giving them benefit of doubt‑‑‑Punishment provided under S.337‑L(ii), P.P.C. was two years, but Trial Court had awarded punishment of three years to accused persons which was not warranted by law‑‑‑Appeal filed by accused had been admitted to regular hearing and hearing was likely to take some time‑‑‑Good reasons were available for suspension of execution of sentence appealed against, as accused were confined in jail‑‑‑Execution of sentences awarded to accused, was ordered to be suspended and accused were released on bail.

1999 SCMR 2589; PLD 1980 SC 295 and PLD 1997 SC 1 ref.

Syed Madad Ali Shah for Appellant.

Muhammad Azam Panhwar for the State.

2005 P Cr. L J 373

[Karachi]

Before Zia Perwaz and Azizullah M. Memon, JJ

WARRIS‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Cr. Bail A. No.D‑70 of 2004, decided on 5th November, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Bail, grant of‑‑‑Accused and his co‑accused were sent up to the Court as absconders out of whom some were subsequently arrested and were produced before the Court with a supplementary challan and trial proceeded against such subsequently arrested accused‑‑‑Material witnesses examined by Trial Court deposed that the accused were not those who were named in F.I.R. as well as in challan‑‑‑Father's name of accused was not made available by prosecution‑‑‑Many other persons could be by name of the accused‑‑‑Was yet to be seen as to whether accused was or was not, actual culprit in the case‑‑‑Accused, in circumstances, deserved to be admitted to bail‑‑‑Bail was granted to accused.

Muhammad Sulleman v. Nasib‑ud‑Din and others 1985 SCMR 1709 and Inayatullah v. The State PLD 2003 Kar. 416 ref.

S. Madad Ali Shah for Applicant.

Muhammad Azeem Panhwar for the State.

2005 P Cr. L J 487

[Karachi]

Before Ghulam Nabi Soomro, J

SHAH NAWAZ‑‑‑Petitioner

Versus

Raja TANVEER and 7 others‑‑‑Respondents

C.P. No.S‑623 of 2003 decided on 20th October, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 22‑A & 25 [as added and amended by Code of Criminal Procedure (Third Amendment) Ordinance (CXXXI of 2002)‑‑­Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Maintainability‑‑‑Registration of criminal case‑‑‑Direction to police‑‑­Petitioner had sought directions to Police Officers for registration of a criminal case‑‑‑Validity‑‑‑Under provisions of S.22‑A(6), Cr.P.C. complaint regarding non‑registration of criminal case could be made before ex officio Justice Of the Peace which under S.25, Cr.P.C. was Sessions Judge‑‑‑Petitioner could approach Court of Sessions Judge concerned, if he had any more grievance‑‑‑Constitutional petition was not maintainable in view of alternate/adequate remedy available under law.

A.M. Naqvi for Petitioner.

Ms. Akhtar Rehana for the State along with S.‑I. Badar, Police Station Boat Basin, Karachi.

Date of hearing: 20th October, 2003.

2005 P Cr. L J 492

[Karachi]

Before Muhammad Afzal Soomro, J

MUREED and others‑‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Cr. Appeal No.3 of 2003, decided on 8th January, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(c)/34‑‑‑Appreciation of evidence ‑‑‑F.I.R., in the case was promptly lodged and same had sought corroboration from independent sources i.e. medical evidence, motive in shape of admitted enmity, recovery of unlicensed pistols from accused persons and unshaken oral evidence of complainant as well as of prosecution witness and of Medical Officer‑‑‑Evidence of Doctor who conducted post‑mortem of both the deceased on, the factum of number, nature, duration of injuries, weapons used and seats of injuries on deceased as also on person of one of accused persons, was in consonance with ocular version‑‑‑Investigating Officer had given details of investigation with regard to effecting recoveries of crime weapons from accused and their arrest‑‑‑All witnesses, including complainant, were cross‑examined, but their statements could not be shaken‑‑‑Conduct of one of accused persons had revealed that he shared common intention with co‑accused in commission of murder of deceased and pistol used in crime was also recovered from him‑‑‑Not only ocular testimony was corroborated by medical evidence, but recovery of pistol and motive also stood proved in view of admitted enmity between parties with regard to an earlier murder case‑‑‑Incident was a broad‑daylight occurrence and question of mistaken identity was out of question‑‑‑Ocular account was also corroborated by circumstantial evidence of recoveries such as pistols‑‑‑Prosecution having successfully been able to make out its case beyond any shadow of doubt, accused were rightly convicted and sentenced under Ss.302(c)/34, P.P.C. by Trial Court.

Muhammad Hanif v. The State PLD 1993 Lah. 434; Shah Muhammad and 3 others v. The State 2000 PCr.LJ 390; Bholu and another v. The State 2002 PCr.LJ 690 and Arshad Mehmood v. The State 2003 PCr.LJ 803 ref.

Abdul Mujeeb Pirzada for Appellants.

Habibur Rasheed for the State.

Dates of hearing: 24th November and 3rd December, 2003.

2005 P Cr. L J 505

[Karachi]

Before Rahmat Hussain Jafferi, J

NOOR NABI and 3 others‑‑‑‑Applicants

Versus

THE STATE‑‑-Respondent

Cr.B.A. No.S‑82 of 2004, decided on 16th March, 2004.

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

‑‑‑‑Preamble‑‑‑Scheme of Criminal Procedure Code, 1898, relating to institution of case, issuing of process and ultimate trial, examined in details.

Raghunath Purl v. Emperor AIR 1932 Pat. 72 and Muhammad Aslam v. Additional Secretary, Government of N.‑W.F.P. PLD 1987 SC 103 ref.

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

‑‑‑‑S. 91‑‑‑Power to take bond for appearance‑‑‑When a person was present in response to summons or warrant before the officer presiding any Court who was empowered to issue summons or warrants, then such officer could direct said person to execute a bond with or without sureties for his appearance in such Court‑‑‑Usually under S.91, Cr.P.C. when complainant or witness appeared before the Court in response to summons issued to them and case was adjourned then bonds with or without sureties were taken from those persons for their appearance on next date of hearing.

(c) Words and phrases‑‑‑

--------"Supplementary", meaning and connotation.

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

‑‑‑‑Ss. 496, 497, 91 & 204‑‑‑Bail, grant of‑‑‑Procedure‑‑‑Under provisions of Ss.496 & 497, Cr.P.C., an order granting bail was to be passed before releasing an accused who appeared or was brought before the Court and who was involved in a bailable or non‑bailable offence‑‑­Without grant of bail, such person could not be released‑‑‑Bonds were to be executed after grant of bail‑‑‑If S.91, Cr.P.C. was read with Ss.496 & 497, Cr.P.C. then it could be held, that when an accused involved in a case of bailable or non‑bailable offence against whom process was issued under S.204, Cr.P.C., appeared before Court, then he was to be released on bail within the meanings of S.496 or 497, Cr.P.C. as the case might be and then he would execute bonds with or without surety‑‑‑Once accused was brought or appeared before the Court in pursuance of process under S.204, Cr.P.C. issued either on a police report, direct complaint or on Magistrate's own personal information, then the Court was required to decide as to whether offences were bailable or non­-bailable‑‑‑If the offences were bailable then the Court would release accused on bail within the meaning of S.496, Cr.P.C. by passing appropriate order‑‑‑If, however, offences were non‑bailable, then accused was required to be remanded to judicial custody or the Court might grant bail to them within the meaning of S.497, Cr.P.C. after complying requirements of said section by passing a speaking order.

Sadiq Ali v. The State PLD 1966 SC 589 and Muhammad Ayoob v. Muhammad Yakoob, PLD 1966 SC 1003 ref.

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

‑‑‑‑Ss. 497, 91 & 204‑‑‑Releasing accused on affidavit filed by surety‑‑­Offences against accused were non‑bailable‑‑‑When accused appeared before Trial Court in pursuance of bailable warrants issued under S.204, Cr.P.C. for their appearance, Trial Court without granting bail within the meaning of S.497, Cr.P.C., released them on affidavits filed by surety‑‑‑Such procedure was not justified under S.497, Cr.P.C.‑‑‑Trial Court was required to comply with provisions of S.497, Cr.P.C. in the direct complaint case.

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

‑‑‑‑Ss. 498 & 497(2)‑‑‑Pre‑arrest bail, grant of‑‑‑Further inquiry‑‑­Counter‑cases between parties with regard to same incident‑‑‑Both parties claimed that other party was the aggressor‑‑‑Dispute was between parties over agricultural land on which incident took place‑‑‑Both parties claimed to be in possession and owners of disputed land‑‑‑All such points could not be properly thrashed out at bail stage as it required evidence to prove each assertion and that had to be scrutinized at the time of trial‑‑‑Such process involved deeper appreciation of evidence which could not be undertaken at bail stage‑‑‑Case requiring further inquiry within the meaning of S.497(2), Cr.P.C., accused were granted bail.

1986 PCr.LJ 2359 ref.

M. Mahmood S. Khan Yousifi for Applicants.

Muhammad Iqbal Memon on behalf of the Add. A.‑G. for the State.

Date of hearing: 8th March, 2004.

2005 P Cr. L J 519

[Karachi]

Before Muhammad Afzal Soomro, J

HIDAYATULLAH alias HIDOO‑‑‑Applicant

Versus

THE STATE‑-‑Respondent

Criminal Bail Application No.S‑670 of 2004, decided on 23rd November, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)‑‑‑Penal Code (XLV of 1860), Ss.34/148/149‑‑‑Bail, grant of‑‑‑Delay of 45 days in lodging F.I.R. and star witnesses of incident had exonerated accused from commission of crime by filing affidavit‑‑‑Identification of accused in the light of Motorcycle, was a weaker source‑‑‑Accused having been able to make out a case for bail, he was admitted to bail, in circumstances.

Jai Jai Vishno Mange Ram for Applicant.

Muhammad Ismail Bhutto State Counsel.

2005 P Cr. L J 529

[Karachi]

Before Wahid Bux Brohi, J

BASHIR AHMED ‑‑‑Applicant

Versus

MUHAMMAD MITHAL and another‑‑‑Respondents

Criminal Miscellaneous Application No.30 of 2003, decided on 19th January, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), Ss.302/34/109‑‑‑Bail, grant of‑‑‑Bail was granted to accused on the ground that the only allegation against him for commission of offence of Oatl‑i‑Amd was of conspiracy but neither he was present at the spot nor he played any active role anywhere‑‑‑Bail was sought to be cancelled on the ground that the version given in the F.I.R. and also by the witnesses that deceased at the time of occurrence cried that `he was being killed in consequence of conspiracy hatched by accused and his co‑accused'‑‑‑Enmity arising out of money matter, would react both ways and since accused was not present at the spot, sole version recorded in F.I.R. by itself was not enough to establish the guilt of accused‑‑‑Case of a conspirator or abettor, who was not present at the spot, would stand at a lower footing than that of accused instigating his companion to commit crime being himself present at the spot‑‑‑Such conspiracy could very easily be set up when parties were inimically disposed towards each other as possibility of false implication of opponent was very much there‑‑‑Case being not fit for cancellation of bail granted to accused application in this behalf was dismissed.

Amanullah Shah v. State PLD 1996 SC 241 ref.

Ali Nawaz Ghanghro for Applicant.

Asif Ali Abdul Razak Soomro for Respondent No. 1.

Mushtaq Ahmed Kourejo for the State.

Date of hearing: 19th January, 2004.

2005 P Cr. L J 532

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

ALI MADAD‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Cr.B.A. No.341 of 2003, decided on 1st September, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, refusal of‑‑­Prima facie overwhelming evidence was available with prosecution to substantiate charge against accused‑‑‑Specific part of infliction of hatchet blow on deceased was attributed to accused‑‑‑Co‑accused was released on bail on statutory ground whereas accused remained fugitive from law for a period of more than eight years‑‑‑Accused, after his arrest had sought ten adjournments and delayed prosecution case‑‑­Prosecution witnesses were in attendance on different dates of hearing and due to acts of accused case was being adjourned by Trial Court‑‑­Delay in trial was on the part of accused and not on the part of prosecution‑‑‑Bail application of accused was dismissed, in circumstances.

Sharbat v. State 2003 MLD 1191; Anwar Ali v. State 2002 PCr.LJ 186; Ahrar Muhammad v. State PLD 1974 SC 224 and Sher Ali alias Sheri v. State 1998 SCMR 190 ref.

Abdul Qadir Abro for Applicant.

Syed Mahboob Ali Shah for the State.

Date of hearing: 1st September, 2003.

2005 P Cr. L J 544

[Karachi]

Before Ghulam Nabi Soomro, J

AMANULLAH‑‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Cr. Bail Appln. No.575 of 2003, decided on 26th December, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/504/147/149‑‑‑Bail, grant of‑‑‑One of co‑accused had taken leading role by firing first from his K.K. at deceased, whereas remaining co‑accused including the accused were alleged to have followed suit‑‑‑Main accused who fired at deceased was granted bail and one other co‑accused was also granted bail‑‑‑Accused was in custody for last about two and half years without charge‑‑‑Case, in circumstances was one of grant of bail under rule of consistency‑‑‑Bail was allowed to accused.

Muhammad Ayaz Soomro for Applicant.

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

Date of hearing: 26th December, 2003.

2005 P Cr. L J 550

[Karachi]

Before Ghulam Rabbani, J

WAHID BUX‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.416 of 2004, decided on 6th September, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/337‑A(i)/337‑F(i)/ 147/1.48/149/114‑‑‑Bail, refusal of‑‑‑Accused though was confined in jail for about one year and eight and half months, but he was responsible for causing death of deceased by giving him Lathi blow on vital part of his body‑‑‑Confinement of accused had not rendered his case that of hardship as he being ‑responsible for causing death of deceased‑‑‑Bail application of accused was rejected, in circumstances.

Muhammad Aslam v. State 1999 SCMR 2147; Abdul Nadeem v. State 2003 MLD 1504; Muhammad Yousuf v. State 2004 YLR 843 and Ali Muhammad v. State 2004 YLR 1557 ref.

Sher Muhammad Shar for Applicant.

Abdul Sattar Soomro on behalf of Addl. A.‑G. for the State.

Date of hearing: 20th August, 2004.

2005 P Cr. L J 555

[Karachi]

Before Wahid Bux Brohi, J

AARAB alias KATOO‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Crl. Bail Application No.54 of 2004, decided on 18th February, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/148/149‑‑‑Bail, grant of‑‑‑Plea of hardship‑‑Bail plea was advanced by accused solely on the ground of hardship suffered by him as he was in custody for a period of three years, nine months and eighteen days without trial‑‑‑Trial had not taken or set for no fault on the part of accused‑‑‑State Counsel had conceded to grant bail to accused‑‑‑Accused was admitted to bail, in circumstances.

Muhammad Aslam v. The State 1999 SCMR 2147; Behram v. The State 2003 PCr.LJ 73; Manzoor. Wattoo's case 2000 SCMR 107; Abdul Hameed v. The State 2003 MLD 19; Punhel v. The State 2004 PCr.LJ 90 and Shabbir v. State 2003 PCr.LJ 1521 ref.

Muhammad Iqbal Mahar for Applicant.

Muhammad Is mail Bhutto for the State.

Date of hearing: 18th February, 2004

2005 P Cr. L J 560

[Karachi]

Before Gulzar Ahmed, J

JEO‑‑‑Applicant

versus

ALI NAWAZ and another‑‑‑Respondents.

Criminal Miscellaneous Application No.S‑16 of 2004, decided on 4th June, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 173, 190, 497 & 561‑A‑‑‑Penal Code (XLV of 1860), Ss.302/ 504/34‑‑‑Submission of challan by ‑Investigating Agency to Magistrate‑‑­Powers of Magistrate‑‑‑Challenging order of Magistrate‑‑‑On filing complaint by complainant, Investigating Agency after investigation, submitted challan under S.173, Cr.P.C. in which one of accused was shown under custody, while another was shown as absconder‑‑‑Said both accused persons were challaned while applicant/ accused was released under 5.497, Cr.P.C. and his name was placed in Column No.2 of the challan‑‑‑Magistrate disagreeing with report/challan. submitted by Investigating Agency, issued show‑cause notice to applicant/accused as to why he should not be joined to face trial‑‑‑Applicant/accused appeared and submitted his reply and Magistrate after hearing complainant and applicant, took cognizance of offence against all accused persons including the applicant and took applicant in custody, remanded him to jail and sent papers to the Court of‑ Sessions Judge‑‑‑Applicant in his application had challenged order of Magistrate, alleging that Magistrate was not competent to order taking applicant in custody and remanding him to jail‑‑‑Magistrate; under provisions of S.190, Cr.P.C., could take cognizance of any offence; (a) upon a complaint; (b) upon a police report; (c) upon information received by himself‑‑‑Magistrate was not bound by the report submitted by police under ‑S.173. Cr.P.C. and Magistrate could not agree with conclusions reached by Investigating Officer‑‑‑Nothing was provided in S.190, Cr.P.C. to prevent a Magistrate from „taking cognizance of case under cl. (b) of S.190, Cr.P.C. in spite of police report‑‑‑Magistrate was required by law to apply his independent mind to material placed before him and farm his own opinion about the matter‑‑‑Magistrate, in process of applying his mind, was required to conduct inquiry and while conducting inquiry, could remand accused to custody‑‑‑Magistrate was entitled to summon a person placed in Column No.2 of the challan and array him as accused‑‑­Magistrate was not bound by action of Investigating Agency of letting of applicant under S.497, Cr.P.C.‑‑‑Magistrate would further decide keeping in view nature of offence as to whether applicant was to be let off on bond and surety or had to be taken in custody as no limitation was placed on powers of Magistrate in that regard under S.190, Cr.P.C.‑‑‑In absence of any illegality in the order of Magistrate, application filed by applicant under S.561‑A, Cr.P.C. for setting aside order of Magistrate whereby applicant was taken into custody, was dismissed.

Inayatullah and 4 others v. The State arid another 1999 PCr.LJ 731; Shahbaz Ali and another v. The State and another 2002 YLR 3595; Arif Ali Khan and another v. The State and 6 others 1993 SCMR 187; Hussain Ahmad v. Mst..Irshad Bibi and others 1997 SCMR 1503; Akhtar Ali Khan v. The State and others 2004 Cr.LJ 247; The State v. Nathe Khan and 5 others 1969 PCr.LJ 378; Farooq Sumar and others v. The State and others 2004 PCr.LJ 1023; Khalid Iqbal v. The State 1991 PCr.LJ 443; Muhammad Haneef and another v. The State 1979 PCr.LJ 1078; Raja Khushbatkhtur Rehman and another v. The State 1985 SCMR 1314; Sajid Jalal and 2 others v; The State and another 1972 SCMR 516; Falak ,Sher and another v. The State PLD 1967 SC 425; Federation of Pakistan v. Malik Mumtaz Hussain and 4 others 1997 SCMR 299;iSafdar All v. Zafar lqbal and others 2002 SCMA 63, 2000 PCr.LJ 520; Mehar Khan v. Yakub Khan 1981 SCMR 267; Mehrab v

Emperor 26 Cr.LJ 181 and Lal Bihari Singh v. Emperor 31 Cr.LJ 55 ref.

Azizullah Buriro and Asif Ali Abdul Razak Soomro for Applicant.

Altaf Hussain Surahiyo for the Complainant.

Mushtaque Ahmed Kourejo for the State.

2005 P Cr. L J 572

[Karachi]

Before Wahid Bux Brohi, J

DATERDINO and 3 others‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Cr. Bail Appln. No:589 of 2003, decided on 5th January, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.324/114/147/148‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Role assigned to main accused was of ineffective firing whereas others, who were allegedly armed with hatchets, did not cause any injury to complainant party‑‑‑Accused despite being armed with gun and hatchets did not inflict any injury although complainant party was ‑lying on the ground‑‑‑When complainant party fell on the ground, main accused could conveniently aim at the target by making repeated. fires, but none had received any fire injury‑‑‑Other accused who were armed with hatchets also did not inflict any injury to them with their hatchets‑‑‑Role of accused persons as regards murderous assault would require further inquiry‑‑‑Complainant whose deposition was recorded during trial gave a straightforward version saying that he had compromised the matter with accused and he had no objection, if accused were acquitted‑‑‑Accused were admitted to bail, in circumstances.

Ibrahim v. Hayat Gul 1985 SCMR 382; Sharbat v. State 2003 MLD 1191 and Ali Nawaz v. State 1995 PCr.LJ 1316 ref.

Abdul Rehman,Bhutto for Applicants.

Muhammad Ismail Bhutto for the State.

Date of hearing: 5th January, 2004.

2005 P Cr. L J 575

[Karachi]

Before Wahid Bux Brohi, J

WALI MUHAMMAD and 2 others‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Crl. Bail Appln. No.640 of 2003, decided on 5th January, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.324‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)‑‑­Bail, grant of‑‑‑Complainants in their depositions recorded at the trial had completely exonerated accused persons saying that they were not the real culprits‑‑‑In view of said versions of complainants, it could hardly be said that accused should be still kept behind the bars on the ground that Motorcycle was recovered from their possession during investigation‑‑‑Accused had remained in jail for a period of more than two years and eight months and State Counsel also had conceded to the grant of bail‑‑‑Accused were released on bail, in circumstances.

Muhammad Iqbal Mahar for Applicant:

Muhammad Ismail Bhutto for the State

Date of hearing: 5th January 2004

2005 P Cr. L J 578

[Karachi]

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

GHULAM QADIR DAYO---Appellant

versus

THE STATE---Respondent

Cr. J. Appeal No.22 of 1998, decided on 10th March, 2004.

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

----S. 302(b)---Appreciation of evidence---Infirmities in the identification test had rendered the identification of the accused inconsequential---Recovery witness had not supported the recovery of crime-weapon from the accused---No ballistic report regarding the revolver allegedly recovered from the possession of accused was available on record---Crime weapon was not shown to the accused at the time of recording his statement under S.342, Cr.P.C.---Incident was an unwitnessed one---F.I.R. was lodged by the complainant on the basis of the story narrated to him by the prosecution witnesses---Criminal conspiracy and the motive alleged against the accused by the prosecution were not proved---Accused had been implicated by the co-accused in her confessional statement which was disbelieved by the Trial Court in toto being illegal and she had been acquitted being innocent---Accused was acquitted in circumstances.

Tariq Pervez v. State 1995 SCMR 1345 ref.

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

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Principles---Single circumstance creating a doubt in a prudent mind is sufficient to entitle accused to have benefit of doubt as a matter of right.

Tariq Pervez v. State 1995 SCMR 1345 ref.

S. Javed I. Bukhari for Appellant.

Muhammad Azeem Panhwar for Respondent.

Date of hearing: 23rd December, 2002.

2005 P Cr. L J 609

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

YOUNIS HABIB---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.5 of 1996, decided on 8th November, 2004.

Penal Code (XLV of 1860)---

----Ss. 409 & 109---Criminal Procedure Code (V of 1898), S. 439---Appreciation of evidence---Trial Court convicted accused but acquitted the co-accused---High Court after going through evidence on record and impugned order of the Trial Court found it necessary to examine case of acquitted co-accused as it appeared that Trial Court did not appreciate evidence available on record against acquitted co-accused on principles laid down by superior Courts---Validity---Held, before passing any order it was expedient in the interest of justice that a notice be issued to acquitted co-accused to show cause as to why impugned judgment in his respect should not be set aside and his case be remanded to the Trial Court for decision in accordance with law.

Abdul Majeed Pirzada for Appellant.

S.M. Alam Rizvi Standing Counsel for the State.

Date of hearing: 20th October, 2004.

2005 P Cr. L J 626

[Karachi]

Before Rahmat Hussain Jafferi, J

KHATOOR---Applicant

versus

THE STATE---Respondent

Cr.B.A. No.S.16 of 2005, decided on 18th January, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.9---Bail, grant of---Principle of consistency---Co-accused had been granted bail and case of accused was similar to that of co-accused who had been granted bail---Accused, in circumstances was also entitled to concession of bail on the rule of consistency.

Muhammad Ayaz Soomro for Applicant.

Muhammad Ismail Bhutto for the State.

2005 P Cr. L J 630

[Karachi]

Before Sarmad Jalal Osmany, J

MITHAL----Applicant

versus

THE STATE---Respondent

Cr. Bail Appln. No.331 of 2004, decided on 1st October, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302 & 324/34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Bail, grant of---Further inquiry---Prosecution case was that crime was committed at night time and that prosecution witnesses were able to recognize accused from head light of motorcycle---Prima facie that would be difficult as at relevant time firing was going on---Accused had been picked up in identification test without any role being ascribed to him---Accused did not participate in the crime of murder at all, and his liability on the theory of common intention would be a question of further inquiry which would be established only at the trial---Case against accused being of further inquiry, he was granted bail.

Abdul Aziz v. The State 1996 SCMR 1693 and Faraz Akram v. The State 1999 SCMR 1360 ref.

Muhammad Iqbal Kalhoro for Applicant.

Mashooq Ali Sammo, Asstt. A.-G. for the State.

2005 P Cr. L J 636

[Karachi]

Before Muhammad Afzal Soomro, J

MUHAMMAD SHARIF---Applicant

versus

THE STATE---Respondent

Cr. B.A. No.542 of 2004, heard on 1st November, 2004.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 345---Penal Code (XLV of 1860), Ss. 302/310/324---Bail, grant of---Compromise between parties---Parties had settled their dispute and had patched up their differences and as a consequence thereof all prosecution witnesses appeared before Trial Court exculpating accused from commission of offence---Legal heirs of deceased by affidavits had forgiven accused in the name of God and had no objection if application of accused for grant of bail was accepted---State Counsel also had no objection to the same---Accused was admitted to bail.

Muhammad Ayaz Soomro for Applicant.

Mushtaque Ahmad Kourejo, State Counsel.

2005 P Cr. L J 643

[Karachi]

Before Gulzar Ahmed and Maqbool Baqar, JJ

MUMTAZ ALI---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.D-616 of 2003, decided on 15th April, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of---Further inquiry---Chemical Examiner in his report had stated that he had found that substance received by him for examination had ‘traces of Charas’ and Chemical Examiner present in Court had explained that ‘traces’ mean that there was less than one per cent. of Charas in the substance examined by him---Question of recovery of Charas from accused appeared to be that of further inquiry---Accused, in circumstances, was granted bail.

Asif Ali Abdul Razak Soomro for Applicant.

Muhammad Ismail Bhutto for the State.

2005 P Cr. L J 652

[Karachi]

Before Muhammad Afzal Soomro, J

NISAR AHMED and another---Applicants

versus

THE STATE---Respondent

Cr. B.A. No.S-655 of 2004, decided on 20th October, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Accused had contended that case against them was false as they had been involved in the case in background of enmity and suspicion and that though accused were duly armed with T.T. pistol but no overt act was attributed to them---No other allegation having been levelled against accused, it was a fit case where accused could be enlarged on bail---State Counsel conceded to said legal position, and had raised no objection if bail was granted to accused---Accused were granted bail, in circumstances.

Muhammad Ayaz Soomro for Applicants.

Muhammad Ismail Bhutto for the State.

2005 P Cr. L J 657

[Karachi]

Before Wahid Bux Brohi, J

NAZEER AHMED and 2 others---Applicants

versus

THE STATE---Respondent

Criminal Miscellaneous Applications Nos.212 and 247 of 2003 in Criminal Appeals Nos.28 and 38 of 2003, decided on 9th April, 2003.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.221/223/224---Suspension of sentence---Sentences awarded to accused were short (five years) and hearing of his appeal could take some time---Sentences awarded to accused were suspended and he was released on bail.

Abdul Hameed v. Muhammad Abdullah 1999 SCMR 2589 ref.

Ali Nawaz Ghanghro for Appellants (in Criminal Appeal No.28 of 2003).

Abdul Rasool Abbasi for Appellant (in Criminal Appeal No.38 of 2003).

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

2005 P Cr. L J 663

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

AHSAN KHAIRI---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.960 of 2004, decided on 24th November, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 406/420/468/471/34---Bail, grant of---Further inquiry---No direct evidence had been collected by investigating agency to establish that cheque in question was forged and counterfeit instrument and in that regard it had relied only on a letter issued by the Bank whereby cheque was returned being forged/ counterfeit one---Statement of author of said letter had not been recorded---Despite availing sufficient time, it was stated in the Court that none had been examined from the staff of the Bank---Guilt of accused, in circumstances required further inquiry---Accused was granted bail, in circumstances.

Khaleeq Ahmed for Applicant.

Syed Ziauddin Nasir Standing Counsel for the State.

Date of hearing: 24th November, 2004.

2005 P Cr. L J 674

[Karachi]

Before S. Ali Aslam Jafri, J

MUHAMMAD PERVAIZ KHAN---Applicant

versus

THE STATE and another---Respondents

Cr. Misc. Application No.165 2001, decided on 3rd September, 2001.

Criminal Procedure Code (V of 1898)---

----Ss. 497(5) & 498---Penal Code (XLV of 1860), Ss. 365/34/109---Pre-arrest bail, cancellation of---Principles---Report of disappearance of alleged abductee was entered in Roznamcha of Police Station---No suspicion was shown on anybody by complainant/applicant for alleged abduction of his son---After five days of said report F.I.R. was lodged and names of suspects were mentioned therein---Alleged abductee returned home a few days after the report---Two statements were made by alleged abductee one under S.161, Cr.P.C. and other under S.164 which was recorded through Judicial Magistrate---Both statements were at variance with each other---Judicial Magistrate had recorded statement of alleged abductee under S. 164, Cr.P.C. in English language though he was shown to be speaking Urdu language as well as Hindko---Such practice on part of Magistrate could not be approved---Circumstances of case had shown that alleged abductee had left his house on his own---Principles for cancellation of bail were altogether different from the principles for grant of a bail---Material available on record showed that impugned order granting bail to accused could not be considered to be illegal, perverse or without jurisdiction---No harm in granting pre-arrest bail to an accused if otherwise his case was fit and appropriate for being enlarged on bail after arrest---No useful purpose would be served if bail granted to accused was cancelled on any technical ground, if he could be allowed bail on merits after his arrest---No case, in circumstances was made out for cancellation of pre-arrest bail granted by Trial Court to respondent/accused.

Muhammad Ramzan v. Zafarullah and another 1986 SCMR 1380 ref.

Sami Ahsan for Applicant.

Saathi M. Ishque for Respondent No.1/State.

M. Sarfraz Khan for Respondent No.2.

2005 P Cr. L J 679

[Karachi]

Before Ghulam Nabi Soomro and Syed Zawwar Hussain Jafri, JJ

ZAKIR HUSSAIN---Applicant

versus

THE STATE---Respondent

Cr. Bail Application No.1313 of 2000, decided on 31st October, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 302---Bail, grant of---Further inquiry---Accused was not named in F.I.R. and prosecution witness had also not implicated him in his evidence before the Court---Other prosecution witnesses had also not implicated accused in their statements under S.164, Cr.P.C.---Accused was in custody since last more than one and half a year---Case against accused, in circumstances fell within the ambit of subsection (2) of S.497 requiring further inquiry---Accused was admitted to bail, in circumstances.

Saathi M. Ishaque for Applicant.

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

2005 P Cr. L J 698

[Karachi]

Before Muhammad Afzal Soomro, J

ALLAH BAKHSH---Applicant

versus

THE STATE---Respondent

Cr. B.A. No.S.662 of 2004, decided on 10th November, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/109/34---Bail, grant of---Nothing incriminating was secured from the possession of accused---Only one empty had been recovered---No specific role was assigned to accused, except role of general allegation---State Counsel conceded to such legal position---Accused having been able to make out a case for bail, same was allowed to him, in circumstances.

Muhammad Ayaz Soomro for Applicant.

Muhammad Ismail Bhutto for the State.

2005 P Cr. L J 699

[Karachi]

Before Muhammad Afzal Soomro, J

RAHIB HUSSAIN---Applicant

versus

THE STATE---Respondent

Cr. B.A. No.790 of 2004, decided on 8th December, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/114/34---Bail, grant of---High Court earlier while declining bail to accused had issued direction to the Trial Court for conclusion of trial within stipulated period, but same could not be concluded according to direction though more than two and half years had passed---Delay in trial being not on the part of accused, benefit of same could be extended to him ---Accused was released on bail, in circumstances.

Muhammad Ayaz Soomro for Applicant.

Muhammad Ismail Bhutto State Counsel.

2005 P Cr. L J 715

[Karachi]

Before Muhammad Afzal Soomro, J

GULOO alias GUL HASSAN---Applicant

versus

THE STATE---Respondent

Cr.B.A. No.534 of 2004, heard on 2nd November, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/324/337-H---Bail, grant of---Ground of hardship---Accused had remained in custody for a period of four years nine months and nine days---Accused had been able to make out case for bail on ground of hardship---Concession of bail was extended to accused, in circumstances.

Muhammad Ayaz Soomro for Applicant.

Muhammad Ismail Bhutto State Counsel.

2005 P Cr. L J 811

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

THE STATE---Appellant

versus

KHAN MUHAMMAD alias KHANAN and others---Respondents

Criminal Acquittal Appeal No.52 of 2000, decided on 29th October, 2004.

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

----Ss. 302(b)/149 & 148---Criminal Procedure Code (V of 1898), S.417---Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.7---Appeal against acquittal---Motive for the occurrence had been proved against accused---Eye-witnesses being related to deceased were not only interested but admittedly were hostile and inimical to the accused, but their presence at the scene of incident and their having actually seen the occurrence was established beyond any doubt who had identified two accused at the spot---Complainant had promptly lodged the F.I.R. specifically naming the eye-witnesses and the accused with their roles in the commission of the crime---Ocular account regarding occurrence was not exaggerated and having been corroborated by medical evidence and incriminating recoveries was safely reliable---Disinterested witnesses, although available, did not come forward to depose against the accused, as usually now-a-days people did not want to be inimical to any group and to put their lives in danger in such type of heinous cases and their non-examination was not fatal to the prosecution case---Evidence of Mashir of recovery had been discarded by the Trial Court on the basis of his being an interested witness, but said evidence was supported and corroborated by the Investigating Officer who had no enmity whatsoever with the accused---Kalashnikov recovered at the instance of main accused had matched with the four crime-empties secured from the spot---Acquittal of the said accused in the case under S.13(e) of the Arms Ordinance, 1965, in a separate trial had no bearing on the evidence and decision recorded in the present main case---Case against two accused, thus, stood proved beyond any shadow of doubt for the murder of the deceased and they were convicted under S.302(b), P.P.C. accordingly---Specific role of causing fire-arm injuries to the deceased having been assigned to the main accused, he was sentenced to death---Other accused who had only facilitated the commission of the murder by aiming his pistol at the prosecution witnesses, was sentenced to imprisonment for life---Both the accused along with three unknown persons armed with deadly weapons having formed an unlawful assembly, had caused the murder of the deceased in prosecution of their common object and they were also convicted under S.148, P.P.C. and sentenced to suffer two years' R.I. each---Appeal against acquittal was partly allowed in circumstances.

Sambasivam v. Public Prosecutor Federation of Malaya PLD 1950 PC 23; Dosa v. State 1988 SCMR 1532; Muhammad Afzal v. State 1983 SCMR 1; Khan v. Crown PLD 1955 Sind 65; Bagha Ali v. Muhammad Anwar 1983 SCMR 1292; NLR 1991 SC 291; Yaqub Shah v. State 1995 SCMR 1293; Muhammad Ashfaq v. State 1995 SCMR 1321; Rasool Bux v. State 1980 SCMR 225; Niaz v. State PLD 1960 SC 387; Nazir v. State PLD 1962 SC 269; Muhammad Ismail v. Khushi Muhammad PLD 1974 SC 37; Abdul Rashid v. Umid Ali PLD 1975 SC 227; Muhammad Ali v. State 1985 SCMR 203; Sharif v. State 1973 SCMR 83; Roshan v. State PLD 1977 Sc 55; Gul Khan v. State 1999 SCMR 304; Yakoob Shah v. State PLD 1976 SC 53; State v. Muhammad Amin 1999 SCMR 1367 and Maqbool Ahmed v. State 1987 SCMR 1059 ref.

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

----S. 302(b)---Appreciation of evidence---Interested witnesses---Corroboration---Principles---Independent corroboration is not an inflexible rule in relying upon an interested witness---Uncorroborated testimony of interested witnesses can be relied upon in context with other relevant circumstances of a particular case.

Nazir v. State PLD 1962 SC 269; Muhammad Ismail v. Khushi Muhammad PLD 1974 SC 37; Abdul Rashid v. Umid Ali PLD 1975 SC 227 and Muhammad Ali v. State 1985 SCMR 203 ref.

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

----S. 302(b)---Appreciation of evidence---Interested witnesses---Corroboration---Principles---Interested and partisan witnesses need corroboration but it need not be such as would by itself justify conviction---Corroboration may be afforded by anything in the circumstances of the case which tends to satisfy the mind of the Court.

Sharif v. State 1973 SCMR 83 and Roshan v. State PLD 1977 SC 55 rel.

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

----S. 302(b)---Appreciation of evidence---Interested witnesses---Corroboration---Principles---Independent corroboration is not always to be insisted upon while relying upon interested witnesses---Value attached to the statements of interested witnesses depends on facts and circumstances of each case.

Gul Khan v. State 1999 SCMR 304 rel.

(e) Criminal trial---

----While deciding a criminal case evidence recorded in another case cannot be taken into consideration and the case should be decided on the evidence available on its own record.

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

----Ss. 302(b)/149 & 148---Criminal Procedure Code (V of 1898), S.417---Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.7---Appeal against acquittal---Accused were not identified by prosecution witnesses at the place of incident and they were put to identification test, where prosecution witnesses had identified them to be the culprits of the crime---Non-examination of the Magistrate had materially and adversely affected the identification test and the same was not proved in accordance with law and appeared to be highly doubtful---No case, therefore, had been made out against the accused and they had been rightly acquitted by the Trial Court---Appeal against acquittal of accused was dismissed accordingly.

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

Azizullah K. Shaikh for the Complainant.

A.Q. Halepoto for Respondents.

Date of 15th April, 2004.

2005 P Cr. L J 846

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

MAZHAR AHMED---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.D-655 of 2004, decided on 12th November, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51---Bail, refusal of---Accused was apprehended while going on a motorcycle and one and half kilograms of opium was recovered from his personal search in the presence of witnesses which he had tied around his waist in two bags---Witnesses had supported the prosecution case---Report of Chemical Examiner regarding the sample of the recovered narcotics was in positive---No enmity between the accused and the Investigating Officer was shown---Reasonable grounds, thus, existed to believe that accused was involved in the case which fell within the prohibitory clause of S.51 of the Control of Narcotic Substances Act, 1997, and he was not entitled to bail on merits---Delay in disposal of the case was due to fact that there were only two Courts in Karachi to deal with such cases which due to increased pendency of cases, could not possibly cope with the work---Case being an old one was, therefore, transferred from the Special Court (C.N.S.) to the Special Court presided over by the Sessions Judge for disposal in accordance with law---Prosecution was directed to produce all the witnesses before the said Court within two months for disposal of the case within shortest possible time---Bail application was dismissed accordingly.

Sayed Muhammad Nehal Hasmi for Applicant.

Special Prosecutor A.N.F., Habib Ahmed, A.A.-G. Standing Counsel for the Federal Government.

Azizullah Shaikh and Shoukat H. Zubedi, D.P.G. NAB as amicus curie.

Date of hearing: 23rd September, 2004.

2005 P Cr. L J 877

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

THE STATE---Appellant

versus

KHALID ALI FARIDI---Respondent

Criminal Acquittal Appeal No.97 of 2004, decided on 23rd November, 2004.

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

----Ss. 13(d) & 2---Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.7(2)---Limitation Act (IX of 1908), Ss.5 & 29---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal---Appeal was barred by time as the time limit provided by S.7(2) of the Suppression of Terrorist Activities (Special Courts) Act, 1975, was 30 days but the same was filed after three months of the passing of the impugned order---Section 5 of the Limitation Act was not applicable in the present case having been barred by S.29 thereof---Even otherwise no cogent ground was shown for condoning the delay and the appeal was liable to be dismissed as being barred by time---Trial Court, however, had acquitted the accused under S.249-A, Cr.P.C. by misreading the evidence on record, but despite that accused was authorized to carry the rifle in question by virtue of his appointment and such authority was not withdrawn by the Government---Mere transfer of accused from one place to another or his suspension being a public servant, would not by itself deprive him of the said privilege---Section 2 of the West Pakistan Arms Ordinance, 1965, had also barred the applicability of the provisions of the Ordinance to the cases of public servants carrying arms and ammunition authorized by the Government---Accused, thus, had committed no offence and had been rightly acquitted.

Abdul Kadir v. Atique Ahmed PLD 2004 Kar. 555 ref.

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

Respondent in person.

Date of hearing: 7th September, 2004.

2005 P Cr. L J 928

[Karachi]

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

M. YOUNIS HABIB---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.5 of 1996, decided on 8th November, 2004.

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

----Arts. 59, 61, 78, 79, 81 & 84---Penal Code (XLV of 1860), S.409---Criminal breach of trust---Proof of signature of accused---Opinion of Handwriting Expert---Relevance---Other modes of proof of such signature---Special Court (Offences in Banks) had acquitted the accused on the ground that his initials on vouchers were not sent to Handwriting Expert; specimen signatures of the said accused were neither taken nor sent to any Handwriting Expert, therefore, on the strength of said initials of the accused his involvement was not proved---Validity---Held, the Judge Special Court (Offences in Banks), apparently was of the opinion that to prove signature of any person the only mode was through Handwriting Expert but under Arts.59, 61, 78, 79, 81 and 84, Qanun-e-Shahadat, 1984 there were other modes of proving the signature or writing of a person which were enumerated---Where the Trial Court had failed to consider such provisions of law and did not appreciate the evidence in accordance with settled rule and law on the subject, High Court, in exercise of its revisional powers, directed that a notice be issued to the acquitted accused to show cause as to why the impugned judgment in this respect should not be set aside and his case be remanded to the Trial Court for decision in accordance with law.

Muhammad Malik Iqbal v. State PLJ 1988 Cr.C. (Kar.) 39; Saeed Muneer v. State PLD 1964 Pesh. 194 and Muhammad Akhtar v. Muna 2001 SCMR 1700 ref.

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

----Arts. 59, 61, 78, 79, 81 & 84---Modes for proving the signature or writing of any person other than through the Handwriting Expert enlisted.

Under Articles 59, 61, 78, 81 and 84 of the Qanun-e-Shahadat there are other modes (than the Handwriting Expert's opinion) for proving the signature or writing of any person viz.:

(i) By admission or examining the person who signed the document (Articles 78 and 81).

(ii) By examining the person before whom the alleged document was signed (Article 79).

(iii) By referring the disputed document and the specimen signature of the person or admitted signature to the handwriting expert for his opinion (Article 59).

(iv) By examining the person who is conversant with the signature in question (Article 61).

(v) By comparison of the signature on the disputed document and on admitted documents by the Court itself. (Article 84).

Muhammad Malik Iqbal v. State PLJ 1988 Cr.C. (Kar.) 39; Saeed Muneer v. State PLD 1964 Pesh. 194 and Muhammad Akhtar v. Muna 2001 SCMR 1700 ref.

Abdul Mujeeb Pirzada for Appellant.

S.M. Alam Rizvi, Standing Counsel for Respondent.

Date of hearing: 20th October, 2004.

2005 P Cr. L J 978

[Karachi]

Before Rahmat Hussain Jafferi, J

JABBAR alias ABDUL JABBAR‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.816 of 2004, decided on 16th February, 2005.

Criminal Procedure Code (V of 1898)‑‑‑

----S. 498---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)‑‑‑Bail before arrest‑‑‑Separating case of accused from other, co‑accused‑‑‑Accused had stated that he would be satisfied if the Trial Court was directed to frame charge and record statement of complainant when case was fixed‑‑‑Trial Court was directed by the High Court to frame charge against accused by separating his case from other co‑accused, if they were absconders and then record statement of complainant and after recording of statement of complainant, accused could file bail application before Trial Court on the grounds whatever available to him‑‑‑Complainant was directed to appear before Trial Court on fixed date for recording his statement.

Ali Nawaz Ghanghro holding brief on behalf of Jai Jai Veshno Mange Ram for, Applicant.

Muhammad Ismail Bhutto for the State.

2005 P Cr. L J 985

[Karachi]

Before Syed Zawwar Hussain Jafri, J

ABID KHAN‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.974 of 2004, heard on 24th January, 2005.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss. 408, 468 & 471‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Alleged embezzlement had taken place between 2‑10‑2003 to 18‑2‑2004 and F.I.R. was lodged on 26‑5‑2004 and such inordinate delay remained unexplained‑‑‑Nothing was on record indicating that show‑cause notice was issued to accused before termination of his service‑‑‑Four witnesses of alleged allegation in the charge‑sheet against accused were employees of the Factory‑‑‑Case of accused had not proceeded in Trial Court and it was yet to be determined whether accused had committed the alleged offence‑‑‑Examination of witnesses would take some time‑‑‑Case against accused required further inquiry as contemplated under S.497(2), Cr.P.C.‑‑‑Bail was granted to accused, in circumstances.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

Dr. Imran Liaquat Hussain for Applicant.

Khalid Mehmood Siddiqui, State Counsel.

Date of hearing: 24th January, 2005.

2005 P Cr. L J 1046

[Karachi]

Before Azizullah M. Memon, J

Malik MUSHEER‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Revision Application No.42 of 2004, decided on 24th May, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 439‑‑‑Revision application‑‑‑Maintainability of‑‑‑Applicant had not approached the Trial Court at the first instance and had directly filed criminal revision application in the High Court‑‑‑Revision application was not maintainable for said reason, but propriety of impugned order itself needed to be scrutinized, as Trial Court had not made reference to the guidelines laid down by High Court in PLD 2001 Kar. 211 and had acted in a stereotyped manner‑‑‑Impugned order was set aside with a direction to Trial Court that prosecution should be heard invariably in all such cases, as referred to in the said decision of High Court.

Arshad Hussain v. The State PLD 2001 Kar. 211 ref.

S. Jawaid Haider Kazmi for Applicant.

Habibur Rashid State Counsel.

2005 P Cr. L J 1051

[Karachi]

Before Khilji Arif Hussain, J

SAMANDER‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. S‑10 of 2005, decided on 19th April, 2005.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.324, 114 & 34‑‑‑Bail, grant of‑‑‑Bail applications earlier filed by accused on different dates were dismissed only on the ground that Final Medical Report of injured had not been received‑‑‑Neither injured appeared before Medical Officer nor final Medical Certificate had been produced for the last about two years‑‑‑Delay of more than one year in submission of Medical Report was sufficient ground for extending bail to accused‑‑‑Accused was behind the bars for the last about two years, but no Final Medical Certificate had been issued and injured had himself failed to appear before Police Surgeon‑‑‑Accused was admitted to bail, in circumstances.

Jai Jai Veshnu for Applicant.

Shaikh Habib‑ur‑Rehman, Asstt. A.‑G. for the State.

2005 P Cr. L J 1058

[Karachi]

Before Ghulam Rabbani, J

ASHIQ ALI ‑‑‑Applicant

Versus

MUHAMMAD YOUSUF MAGSI and another‑‑‑Respondents

Criminal Miscellaneous Application No.27 of 2004, decided on 19th April, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Cancellation of bail, application for‑‑‑Medical certificate and admission of prosecution witness who was son of deceased, had reflected that deceased was kidney patient‑‑‑Scuffle, as per prosecution story, ensued when deceased found accused cutting the tree which could not have been possible without any sharp cutting equipment/weapon‑‑‑Had there been an intention on the part of accused to cause the death of deceased, he could have used the sharp cutting weapon, but no such allegation was found against accused‑‑­Statement of complainant that accused had caused kicks and fists blows to applicant's/complainant's father whereafter he fell down, was apparently subject to further inquiry as his other brother had not supported him in his evidence‑‑‑Counsel for complainant and State counsel also failed to confirm, if any sharp cutting weapon/equipment with which accused was seen cutting the tree, was recovered‑‑‑Impugned bail granting order not suffering from any infirmity, application for cancellation of bail was dismissed.

M. Suleman Junejo for Applicant.

Iqbal Ahmad Solangi for Respondent No. 1.

Sohail Jabbar State Counsel.

2005 P Cr. L J 1080

[Karachi]

Before Sarmad Jalal Osmany and Azizullah M. Memon, JJ

Haji ABDUL MANAN‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 118 of 2005, decided on 24th February, 2005.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9, 21 & 22‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Where Assistant Sub-­Inspector was Incharge of concerned police station, raid conducted by him and thereafter his investigating in the matter, particularly when prima facie no prejudice had been caused to accused, could not be made a ground for bail‑‑‑Arrest and recovery, though was made allegedly at the instance of one who was the rival of accused, but no proof in support of his assertion had been placed before Court at all‑‑‑During re‑investigation of the matter, however, some doubt had been caused about the place of arrest and also regarding actual departure of the police party from the concerned police station‑‑‑Weight of Charas was stated to be approximately 1 K.G, but entire quantity was not sent for chemical analysis and weighment etc. to confirm whether or not the weight of allegedly recovered Charas was 1 Kg. or less‑‑‑Case being for further inquiry entitling accused to concession of bail, he was admitted to bail.

Mumtaz Ali v. The State 2001 YLR 1847; Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Muhammad Hanif v. The State 2003 SCMR 1237 ref.

Ashraf Ali Butt along with Muhammad Imran Butt for Applicant.

Habib Ahmed, A.A.‑G. for the State.

Date of hearing: 24th February, 2005.

2005 P Cr. L J 1171

[Karachi]

Before Amir Hani Muslim, J

MUHAMMAD HAMID QURESHI and another---Applicants

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.48 and M.A. No.1004 of 2004, decided on 20th July, 2004.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 169 & 265-K---Setting aside order of Trial Court---Application made by Investigating Officer with the concurrence of P.D.S.P. and S.P. Investigation, was submitted before Magistrate concerned who transmitted same to Trial Court---On basis of said report, applicant moved Trial Court under S.265-K, Cr.P.C. but Trial Court dismissed said application without referring the report made under S.169, Cr.P.C.---Trial Court thus, had overlooked report under S.169, Cr.P.C. while rejecting application of applicant made under S.265-K, Cr.P.C.---Investigating Officer had stated that applicants were named in F.I.R. on the basis of statement of co-accused, which statement had not been substantiated by any other material during investigation---Impugned order was set aside and Trial Court was directed to decide matter in the light of report made under S. 169, Cr.P.C. as that aspect had been completely overlooked while passing impugned order---There had to be specific finding on that point, which had not been taken care by the Trial Court.

Saathi M. Ishaque for Applicants.

Fazalur Rahman Awan for the State along with Inspector Gohar Zaman.

2005 P Cr. L J 1176

[Karachi]

Before Sarmad Jalal Osmany and Azizullah M. Memon, JJ

FAQEER MUHAMMAD---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1147 of 2004, decided on 29th March, 2005.

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

---S. 497---Pakistan Coastguards Act (XVIII of 1973), S.14(1)---Control of Narcotic Substances Act (XXV of 1997), S.8---Customs Act (IV of 1969), S.6---Bail, refusal of---F.I.R. registered by Pakistan Coastguards showed that accused was arrested at Railway Station on suspicion of smuggling upon prior spy information---Submission of accused was that Coastguard Authority did not have any jurisdiction to arrest the accused and seize alleged narcotic substance at the Railway Station---Railway Station where accused was arrested though not within the Port area, fell under jurisdiction of Pakistan Coastguards in view of provisions of S.14(1) of Pakistan Coastguards Act, 1973---Arrest and seizure in question could not be challenged on ground of jurisdiction---Per evidence on record, prima facie, it had been established that a huge quantity of narcotics viz. Hashish, was recovered containing in 74 packets and having a total weight of 78 Kgs.---Even if samples from two packets were sent for Chemical Examination, accused could ultimately be convicted for the quantity contained in those two packets---Since it was not stated anywhere in Control of Narcotic Substances Act, 1997 or the Rules made thereunder as to how much quantity from the seized narcotics should be sent for the purpose of Chemical Analysis, a reasonable quantity should be sent---When 58 grams were sent as a sample from each packet weighing approximately one kilogram each, that would be sufficient in circumstances of the case---Accused, prima facie, could-be connected to crime in question---Bail application filed by accused was dismissed with direction to Trial Court to dispose of the case expeditiously.

Shujauddin v. Pakistan Coastguards PLD 1978 Kar. 1110; Muhammad Mehfooz v. Collector of Customs PLD 1986 Kar. 28; Collector of Customs v. Muhammad Mehfooz PLD 1991 SC 630; Farid Gul v. The State 2002 PCr.LJ 1810; Hadi Bux v. The State 2000 PCr.LJ 714; Nasir Khan v. The State 1997 MLD 1473; Muhammad Chattal v. The State 2001 YLR 654; Mst. Hajira v. The State 2000 YLR 53 and Ali Muhammad v. The State 2003 SCMR 54 ref.

M. Shahid Qadeer for Applicant.

Mehmood Alam Rizvi, Special Prosecutor for A.N.F. for Respondent.

Dates of hearing; 17th February and 10th March, 2005.

2005 P Cr. L J 1405

[Karachi]

Before Rahmat Hussain Jafferi, J

ALLAH DAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.109 of 1998, decided on 1st September, 2004.

Penal Code (XLV of 1860)---

----Ss. 324, 353 & 377-D---Appreciation of evidence---Ocular testimony furnished by prosecution witness was hearsay evidence which being inadmissible evidence, was discarded---If said piece of evidence was taken out of consideration then it would appear that the prosecution witness did not witness the incident---Statement of complainant appeared to be doubtful as according to him other three culprits also fired at him which made holes in his clothes---Evidence of medical officer had revealed that no such holes were found in the clothes of complainant---Only one empty cartridge was secured from the place of incident and no other empty cartridges were secured from there-Statement of the complainant to that extent was neither supported nor corroborated by any other piece of evidence---Plea of accused was that the Police could not apprehend real culprit and that he had been falsely implicated in the case due to enmity---Evidence of defence witnesses had revealed that none of accused persons was present at the time of incident---Both said witnesses were cross-examined by prosecution, but their statements remained firm---If any piece of evidence was not challenged by other side, it would be presumed to be accepted by said party---Such presumption could fairly be drawn in the present case---Two theories were available on record, one favouring prosecution and other the accused; if two theories emerged from evidence, then the theory favourable to accused, was to be accepted---Defence theory having been proved in the case, prosecution case had been shattered and had to be discarded, in circumstances---Even otherwise case of prosecution being highly doubtful, accused was entitled to benefit of doubt---Accused was acquitted giving him benefit of doubt.

Ashiq Hussain v. State 1993 SCMR 417 ref. Jawaid Hyder Kazmi for Appellant.

Habib-ur-Rashid for the State.

Date of hearing: 25th August, 2004.

2005 P Cr. L J 1418

[Karachi]

Before Sarmad Jalal Osmany, J

ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-421 of 2003, decided on 15th October, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 395---Bail, grant of---Further inquiry---Case was of two versions---Delay of five days in registration of F.I.R. had not been explained by prosecution---Alleged confession of accused was recorded on fourth day of arrest of accused, which had not been explained as well---Co-accused, whose case was identical to that of accused had been released on bail---As case of accused was of further inquiry, he was admitted to bail.

Salabast v. State 1975 PCr.LJ 451; Muhammad Waseem v. State 1998 PCr.LJ 435; Abdul Aziz v. State 1996 SCMR 1693 and Tariq Hussain Shah v. State 2003 SCMR 938 ref.

Qurban Ali Chohan for Applicant.

Mashooq Ali Samo, Asstt. A.-G. for the State.

Date of hearing: 28th September, 2004.

2005 P Cr. L J 1489

[Karachi]

Before Ata-ur-Rehman and Sarmad Jalal Osmany, JJ

ASHRAR alias ASHROO and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.174 of 1996, decided on 31st August, 2004.

Penal Code (XLV of 1860)---

----Ss. 302 & 34---Appreciation of evidence---Eye-witness account on which entire prosecution case rested, coupled with identification test, was not free from doubt primarily as per prosecution witnesses themselves who had stated that they had opportunity to have a good look at the accused before identification test was conducted---Delay of one week was made in conducting identification parade---Identification of accused in moonlight on the day of incident which corresponded to 18th of Shawwal, would be quite difficult since. on that date Moon would be only up to the shoulder level above the Eastern horizon, especially when accused were allegedly firing behind the bushes---Identification of accused in the lights of police mobile would also be very difficult---All prosecution witnesses had given contradictory statements with regard to number of accused and their respective roles---In view of said contradictory statements of prosecution witnesses, prosecution had not been able to fully prove charges against accused beyond any reasonable doubt---Appeal was allowed against impugned judgment of Trial Court.

Amanullah v. The State PLD 1978 Kar. 792; Malhi v. The State 1968 SCMR 1077 and Kirir v. The State PLD 1996 Kar. 246 ref.

Hidayatullah Abbasi for Appellants.

Muhammad Azeem Panhwar for the State.

Date of hearing: 11th August, 2004.

2005 P Cr. L J 1510

[Karachi]

Before Rahmat Hussain Jafferi, J

AJJAB KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.8 of 2005, decided on 16th March, 2005.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Order for custody and disposal of property pending trial---Trial Court had ordered for the return of the bus to the applicant owner on furnishing surety in the sum of forty lac rupees---Bus had been detained as a result of an accident with a coach---Driver of the Bus would be prosecuted for causing hurt or death of persons by rash and negligent driving, but the vehicle could not be said to have been used by the accused for the commission of such offence---Owner of the Bus in the case of accident had done nothing to advance the commission of any offence, but it was his driver who was liable for the offence---Owner of the Bus was being penalized by detaining the same and depriving him of exercising his legal right to use his own property---Leaving the Bus in police custody would not serve any purpose, rather it would reduce its utility---Law did not require the owner in such a case to furnish the surety and the Court was required to release the vehicle on merely executing P.R. bond of a reasonable amount---Impugned order passed by Trial Court was consequently modified to the extent that the vehicle be returned to the applicant owner on executing his P.R. bond in the sum of Rs.50,000 before the Trial Court---Petition was allowed accordingly.

Phulla Singh v. Emperor AIR 1931 Lah. 565; Emperor v. Illahi Bakhsh (1904) 4 PLR 1904; Syed Razi Shah v. The State 1971 PCr.LJ 19; Rai Bashir Ahmed v. The State 1971 PCr.LJ 255; Sheraz Illahi v. The State 1984 PCr.LJ 1935; Barka Mal v. The State 1989 PCr.LJ 1110 and Ali Muhammad Kalhoro v. The State 2004 YLR 943 ref.

Saeed Ahmed B. Bijarani for Applicant.

Mushtaque Ahmed Kourejo for the State.

Date of hearing: 14th March, 2005.

2005 P Cr. L J 1566

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

MUHAMMAD MUNAF---Applicant

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31 and 32 of 2005, decided on 1st July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Customs Act (IV of 1969), S.156(1)(8), (14), (77), (86) & (89)---Bail, refusal of---Offence with which the accused was charged pertained to import of smuggled goods on the strength of fake and forged documents coupled with evasion of State Revenue which was a white collar crime---Importers and donees were all ladies and were not traceable---Documents of import were reported to be forged---Pay orders through which the accused had allegedly received the amount of duty and taxes had not been produced---Accused, a clearing agent, had made the payment through his deposit account maintained with the Custom House---Person through whom fake/forged documents had been received by the accused was not traceable---Accused himself appeared to be the beneficiary---Bail was declined to accused in circumstances.

Salooka Steels Ltd. v. Director-General Coast Guards of Pakistan PLD 1981 Quetta 1; Saeed Ahmed v. The State 1996 SCMR 1132; Muhammad Shafique v. State 1999 PCr.LJ 830 and Muhammad Mustaqeem v. State 2004 YLR 68 distinguished.

Imtiaz Ahmed v. State PLD 1997 SC 545 rel. -Muhammad Ilyas Khan for Applicant.

S. Ziauddin Nasir Standing Counsel and Haider Iqbal Wahaniwal for Custom Department.

Date of hearing: 22nd June, 2005.

2005 P Cr. L J 1599

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

Rana SHABBIR HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.181 of 2003, decided on 17th June, 2005.

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

----Ss. 392, 397, 342 & 506---Criminal Procedure Code (V of 1898), S.103-Appreciation of evidence---Identification parade was not held in the case which was essential in order to ascertain the identity of the accused--Recovery of incriminating articles at the instance of accused was violative of the provisions of S.103, Cr.P.C.---No identification test was held in respect of the recovered golden ear-rings in order to find out if the same was actually a robbed property---Investigating Officers Having been examined prior to the examination of the eye-witnesses and the recovery witnesses in the case, the defence was deprived of the right to confront the Investigating Officers with the contradictions in the statements of the eye-witnesses and the recovery witness at the trial and their statements recorded under S.161, Cr.P.C.---Evidence of recovery of incriminating articles having not been put to the accused while recording his statement under S.342, Cr.P.C., the same could not be used against him for his conviction---Conviction of accused under S.392, P.P.C. after his conviction under S.397, P.P.C. was bad in law and not sustainable as the same amounted to his conviction twice for the commission of the same offence---Accused was acquitted in circumstances.

(b) Administration of justice---

----Crime and punishment---Courts are supposed to administer justice and not to sit with vindictive attitude---Such conduct is highly deprecated---Trial Courts must not be swayed by emotions while passing the judgment and should always act within the parameters of the law.

Abdul Wahab Ansari for Appellant.

Akhtar Saeed for Respondent.

Date of hearing: 17th June, 2005.

2005 P Cr. L J 1626

[Karachi]

Before Muhammad Mujeebullah Siddiqui and Maqbool Baqar, JJ

JAM SAQI and another---Petitioners

Versus

PROVINCE OF SINDH through Secretary, Home Department, Karachi and 6 others---Respondents

Constitutional Petition No.D-637 of 2005, decided on 13th June, 2005.

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

----Art. 199---Constitutional jurisdiction---Scope---High Court under Art.199 of the Constitution is duty bound to take extraordinary measures to protect the life, liberty, honour and dignity of every citizen---Where the statute law is not sufficient to meet a situation and provide protection to the citizens, the said extraordinary jurisdiction of High Court must come to the aid of citizens.

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

----Art. 199---Constitutional jurisdiction---Scope---Mala fide actions of State Functionaries to be struck down---Any action taken by the State Functionaries with mala fide intentions cannot be treated to have been taken in the exercise of powers with bona fide intentions in the ordinary course---High Court while exercising jurisdiction under Art.199 of the Constitution and confronted with the question of liberty of citizens, is bound to ensure that the powers conferred on the State Functionaries are exercised in accordance with the spirit of the law in a bona fide manner and not otherwise---Even the most sacrosanct actions are bound to be struck down if mala fide is apparent on the record.

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

----Art. 199---Constitutional petition---Petitioner and his wife had sought protection against their alleged victimization on political considerations---Arrest of the wife of the petitioner in an F.I.R. recorded in the year 1999 smacked of mala fides---High Court had always taken adverse view of the action taken after a lapse of five or six years without explanation---Question pertained to the protection of honour and dignity of the petitioner and his wife which were being violated for extraneous considerations by misuse of the police authority---Appropriate direction, therefore, had to be issued to the police administration keeping in view the rights guaranteed to the citizens under the Constitution and the Islamic dispensation---Entire police administration in the whole of the Province was consequently directed not to arrest the petitioner and his wife in any blind F.I.R. or in any F.I.R. pending for more than one year against them until and unless the necessary particulars of the F.I.R. were placed before the High Court for seeking appropriate orders thereon---Constitutional petition was disposed of accordingly.

Commissioner of Income Tax, Peshawar Zone, Peshawar v. Messrs Siemen A.G. PLD 1991 SC 368 ref.

Rasheed A. Rizvi and Iqbal Haider for Petitioners. Habib Ahmed, A.A.-G. for Respondents.

Date of hearing: 13th June, 2005.

2005 P Cr. L J 1631

[Karachi]

Before Ghulam Rabbani, J

SAEED AHMED---Applicant, Versus

ABDUL SHAKOOR and another---Respondents

Criminal Revision No.69 of 2002, heard on 6th May, 2005.

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

----Ss. 200, 203 & 439---Criminal revision---Second direct complaint, on the same facts after dismissal of the first complaint under S.203, Cr.P.C., maintainability of---First complaint had been dismissed by the Trail Court under S.203, Cr.P.C. without any final determination on merits and ,without appreciation of evidence available on record---Accused nominated in the direct complaint were neither discharged nor acquitted---Evidence of four witnesses who were allowed to be examined was yet to be recorded---On the day when the previous complaint was dismissed, complainant was present and on his request the case was kept to waiting as his counsel was yet to come---Trial Court, however, dismissed the complaint at 11-05 a.m. without even considering the evidence/material before it---Second complaint filed by the complainant on the same facts was maintainable in circumstances---Impugned order dismissing the second complaint was consequently set aside and the case was remanded to Trial Court to proceed further in the matter and decide the same in accordance with law.

Gulab Khan v. Fazal Hussain PLD 1967 SC 340; Muslim Miah v. Mansur Ali 1969 PCr.LJ 849; Sher Adat Khan v. Sahib Din 1989 PCr.LJ 1299; Atta Muhammad v. Iqrar Ahmed 1991 PCr.LJ 274; Allah Ditta v. Karam Bakhsh AIR 1930 Lah. 8.79 and Emperor V. Kiri 19 Cr.LJ 364 ref.

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

----Ss. 200, 203, 369 & 403---Second complaint after dismissal of first complaint under S.203, Cr.P.C. not barred---Order of dismissal of complaint under S.203, Cr.P.C. is no bar to the entertainment of the second complaint on the same facts---Sections 369 and 403, Cr.P.C. also do not operate as a bar to second complaint.

Allah Ditta v. Karam Bakhsh AIR 1930 Lah. 879 and Emperor v. Kiri 19 Cr.LJ 364 ref.

Bhajandas Tejwani for Applicant.

Noor Hassan Malik holding brief for Abdul Fattah Malik for Respondents.

Muhammad Mahmood S. Khan Yousafi, Asstt. A.-G.

Date of hearing; 6th May, 2005.

2005 P Cr. L J 1638

[Karachi]

Before Amir Hani Muslim, J

Dr. GHULAM MUSTAFA SOLANGI and 5 others---Applicants

Versus

THE STATE---Respondent

Criminal Miscellaneous No.170 of 2004, decided on 14th July, 2004.

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

----Ss. 11 & 16---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Criminal Procedure Code .(V of 1898), S.561-A---Quashing of proceedings---Contents of the Nikahnama having been admitted by the husband and the wife, validity of the same could not be gone into in the present proceedings---Legality or validity of the Nikahnama 'could only be challenged before a Civil Court of competent jurisdiction---Marriage of the accused could not be declared invalid on the ground that the Nikahnama did not disclose the correct addresses of the parties or that the column in the Nikahnama requiring disclosure of marital status of the husband was blank---Challan had been submitted unauthorisedly before the Magistrate under the signatures of the unauthorized police officials, apparently under the influence of the Deputy District Attorney, which had no legal value and its acceptance by the Magistrate could not cure the inherent defect---Statement of the wife of accused in the Court and her Nikahnama had belied the prosecution story as narrated in the F.I.R. which was concocted and could not be believed---Accused was proved to have lawfully married his wife who was sui juris---Case against accused, even according to the report of Investigation Officer had been falsely registered---Accused could not be convicted even if the entire evidence was brought on record---Proceedings pending before the Trial Court pursuant to the F.I.R. lodged by the complainant were quashed in circumstances.

1998 SCMR 370; 1998 SCMR 1016 and PLD 1984 SC 91 ref.

(b) Islamic law-----

--.-Marriage---Nikahnama---Validity---Nikahnama can only be objected to by the parties who were allegedly signatory to it---Law does not permit a stranger to challenge the validity of a Nikahnama when its contents are admitted by the husband and his wife.

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

----S. 154---First information report---Contents of F.I.R.---Prosecution story given in the F.I.R. is either to be believed or disbelieved, it cannot be accepted partly.

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

----Ss. 561-A, 249-A & 265-K---Inherent jurisdiction---High Court in exercise of its inherent jurisdiction under S.56I-A, Cr.P.C. has ample power to quash proceedings if it finds that even after recording the entire evidence the accused would not be possibly convicted, irrespective of the fact that they had not approached the Trial Court either under S.249-A, Cr.P.C. or S.265-K, Cr.P.C.

Iqbal Haider and Malik Muhammad Ejaz for Applicants.

Abdul Latif Channa for the Complainant.

Fazalur Rehman Awan for the State.

2005 P Cr. L J 1648

[Karachi]

Before Rahmat Hussain Jafferi, J

ATTA MUHAMMAD---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.225 of 2005, decided on 14th April, 2005.

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

----S. 497---Penal Code (XLV of 1860), Ss.322/427/279---Bail, refusal of---Accused, while driving a bus, had allegedly caused an accident in which a Police Officer going on a motorcycle was killed at the spot and some cars passing on the road side were damaged---Driving licence of the accused having expired, his driving of a public service transport vehicle was unlawful and he had, prima facie, committed an offence punishable under S.322, P.P.C. which was non-bailable and he could not claim bail as of right---Discretion in bail matters had to be exercised judiciously keeping in view the nature of the offence, its impact on the society and the persons directly affected thereby---Offences of accidents were increasing day by day particularly at the hands of the drivers who ply transport vehicles without a licence or a valid or effective licence Eye-witness had supported the prosecution case and reasonable grounds existed to believe that accused was involved in the case---Bail was declined to accused in circumstances.

Yousuf Khan v. The State 2000 PCr.LJ 203; Munir Hussain v. The State 1994 PCr.LJ 406 and Muhammad Siddique v. Imtiaz Begum 2002 SCMR 442 ref.

(b) Provincial Motor Vehicles Ordinance (XIX of 1965)---

----Ss. 3 & 11---Penal Code (XLV of 1860), Ss.,322, 427, 279, 107 & 114---Qatl-bis-Sabab---Abetment---Qatl-bis-Sabab by person not holding "licence" or "effective licence"---Owner or person incharge of the vehicle would also be charged under S.114, P.P.C. along with such person.

(c) Provincial Motor Vehicles Ordinance (XIX of 1965)---

----Sched. I, Form B, Cl.(6)---Issuance of Driving Licence---Ascertainment of facts by the Medical Officer---Medical Officer should get the various tests conducted and blood examination report to verify as to whether the driver showed any evidence of being addicted to, excessive use of alcohol, tobacco or drugs---Such report should be attached to the certificate, so that the driving licence Issuing Authority could determine as to whether or not the person was addicted to any intoxicant substances or drug.

G.M. Bhutto for Applicant.

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

Professor Umar Farooq Khan for the Complainant.

2005 P Cr. L J 1657

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

AURANGZEB---Applicant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.133 of 2002, decided on 6th May, 2005.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Incident had taken place in broad-daylight---Eye-witnesses including an independent witness had no enmity whatsoever with accused to falsely implicate him in the case leaving the actual culprit---Ocular testimony was natural, trustworthy and confidence-inspiring and did not suffer from any infirmity---Medical evidence had corroborated the eye-witness account along with the circumstantial evidence---Direct role had been attributed to accused that he caught hold of the deceased, abused him, hit him and then fired at him with a pistol, which had been proved beyond doubt on record by the prosecution---Conviction and sentence of imprisonment for life awarded to accused by Trial Court were maintained in circumstances.

PLD 1963 (W.P.) Kar. 92; 1969 PCr.LJ 187; 1974 PCr.LJ 385; 1972 SCMR 578 and PLD 1954 FC 197 ref.

Khalid Mehmood for Appellant.

Sardaruddin on behalf of the A.-G. Sindh for the State.

2005 P Cr. L J 1674

[Karachi]

Before Rahmat Hussain Jafferi, J

MUHAMMAD KHOKHAN and another---Applicants

Versus

THE STATE---Respondent

C.M.A. No.728 of 2005 in Criminal Bail Application No.925 of 2004, decided on 28th March, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.302/34---Reduction of surety amount---Guidelines---Amount of bail fixed should not be excessive and the security required should be in accordance with the position in life of the person to be released on bail---Basic idea demanding security was not to penalize the accused, but to ensure his presence in the Court---Accused, despite having been granted bail about four months earlier, had not been able to arrange the required surety for the amount of Rs.2,00,000 each fixed by the Court and were in jail---One accused had also been granted, bail in another case under S.302/34, P.P.C. in the sum of Rs.50,000---Keeping in view the position of accused in life the surety amount of Rs.2,00,000 was reduced to Rs.50,000 each to meet the ends of justice.

M.B. Shakeel for Applicants.

Ghulam Rasool Mangi for the State.

2005 P Cr. L J 1679

[Karachi]

Before Ata-ur-Rehman and Mushir Alam, JJ

AHMER RAZI---Applicant

Versus

THE STATE---Respondent

Criminal Revision No.73 of 2005, decided on 13th July, 2005.

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

----S. 6---"Terrorism"---Scope---Transfer of case from Anti-Terrorism Court to the Court of Session---Case against accused did not fall within the ambit of S.6 of Anti-Terrorism Act, 1997 as there was no allegation of threat of any action as provided under said section---Actions as enumerated under subsection (2) to S.6 of Anti-Terrorism Act, 1997 were offences under Penal Code itself and such offences per se, were not triable by Anti-Terrorism Court---Such actions would only be cognizable by Anti-Terrorism Court if any of enumerated offences under subsection (2) of S.6 of Anti-Terrorism Act, 1997 had any nexus with purpose and object as defined under subsection (1) of S.6, Anti-Terrorism Act, 1997---Revision application was allowed and impugned order was set aside and case was transferred to concerned Court of Session for disposal according to law.

Shahadat Awan for Applicant.

Habib Ahmed, A.A.-G.

2005 P Cr. L J 1683

[Karachi]

Before Muhammad Moosa K. Leghari and Zia Pervvaz, JJ

ZAHID HUSSAIN and another---Appellants

Versus

THE STATE---Respondent

Special Criminal A.T.A. Appeals Nos.43, 90 and 93 of 2002, decided on 27th August, 2002.

Penal Code (XLV of 1860)---

---Ss. 295-A, 353 & 34-West Pakistan Arms Ordinance (XX of 1965), Ss.13(d)(e)---Anti-Terrorism Act (XXVII of 1997), S.7(b)---Appreciation of evidence---F.I.R. did not contain any allegation with regard to assault or use of criminal force by accused to deter police from discharging its duty---Enough evidence was on record to show that accused had obeyed orders of police---Conviction of accused under S. 353, P.P.C., in circumstances, was patently illegal---Conviction of accused under S.295-A, P.P.C. was recorded on sole statement of complainant, who made such allegation on basis of spy information---No evidence, whatsoever, was produced by prosecution to substantiate charge that accused had attempted to insult religion or religious beliefs of any class/sect---Even if version of complainant that accused were carrying illicit arms for selling same to sectarian group, was accepted to be gospel truth, how selling of illicit arms to undisclosed sectarian group could tantamount to outraging religious feeling of any class of citizen of the country or an attempt to insult religion or religious beliefs---Such was nothing more than a mere conjecture not warranting conviction of accused---Conviction awarded to accused under S. 13(e) of West Pakistan Arms Ordinance, 1965 and S.7 of Anti-Terrorism Act, 1997 was also illegal, because it was neither substantiated by evidence on record nor it was based on legal foundation---Conviction recorded to accused under Ss.353, & 295-P, P.P.C. and under S.7 of Anti-Terrorism Act, 1997 and S. 13(e) of West Pakistan Arms Ordinance, 1965 was without evidence, violative of law and illegal---Weapons allegedly recovered from accused under S. 13(d) of West Pakistan Arms Ordinance, 1965 were neither sealed on the spot nor those were sent to Ballistic Expert for soliciting his opinion as to whether such weapons were in operational and functional condition and whether those fell within the category of weapons exclusively triable by Anti-Terrorism Court---Besides weapons so recovered were neither produced in the Court nor were exhibited---Judgment of Trial Court convicting and sentencing accused being perverse, capricious and absolutely illegal, could not be maintained, and same was set aside, and accused were acquitted.

Allah Bachayo Soomro for Appellants.

Muhammad Azeem Panhwar for the State.

Date of hearing: 27th August, 2002.

2005 P Cr. L J 1741

[Karachi]

Before Muhammad Sadiq Leghari, J

LIAQUAT ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.676 of 2004, decided on 3rd August, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 429, 148, 149 & 114---Bail, grant of---Two deceased had 17 fire-arm injuries which were directly attributed to three accused persons including accused and one of them had been released on bail---Accused was in jail since 10-11-2001 and complainant, who was eye-witness in the case, was absconding as accused in another case---Progress in trial, in circumstances had become uncertain and it was not known as to when trial would be concluded---Accused, in circumstances was allowed bail.

Muhammad Saleem Jesar for Applicant.

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

2005 P Cr. L J 1842

[Karachi]

Before Sarmad Jalal Osmany and Azizullah M. Memon, JJ

MUHAMMAD AKBAR and another---Appellants

Versus

THE STATE---Respondent

Special A.T.As. Nos.56 and 57 of 2003, decided on 3rd June, 2005.

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

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), Ss.6(2)(e)/7(e)---Appreciation of evidence ---Abductee, the most important eye-witness, had identified both the accused in the Court and also picked them out in the identification test, giving the graphic details of his ordeal---All the three eye-witnesses who were natural witnesses of occurrence and whose presence at the scene of crime could not be doubted, had given the identical sequence of events and had fully corroborated each other as to the date, time of occurrence and their respective locations at the scene---One accused being already known to the family of the complainant, had been identified by the eye-witnesses in the Court and on his pointation the abductee was recovered---Delay of about 36 hours in lodging the F.I.R. had been explained and was of no significance---Eye-witnesses had also correctly identified the other accused in the identification test though without ascribing any role to him, but it would not negate the positive evidence against him furnished by the eye-witnesses during which they had described his role in great detail---Minor discrepancies could be ignored in view of the overwhelming evidence on the record regarding abduction of the abductee with no other purpose than to forcibly recover the outstanduig amount which the complainant allegedly owed to the absconding accused---Convictions and sentences of accused were upheld in circumstances.

Mehmood Ahmed v. The State 1995 SCMR 127 distinguished.

Ishaq v. The State PLD 1985 Kar. 595; Abdul Sattar v. The State 1981 SCMR 678; Lal Pasand v. The State PLD 1981 SC 142; Ismail v. The State 1983 PCr.LJ 823; State v. Farman Hussain PLD 1995 SC 1; Asghar Ali v. Saba 1992 SCMR 2088; Abdul Sattar v. The State 1988 SCMR 557; Ramzan and others v. Emperor AIR 1929 Sindh 149; Ayub Masih v. The State PLD 2002 SC 1048; Muhanunad Akbar v. The State 1998 SCMR 2538; Khawaja Hasanullah v. The State 1999 MLD 514; The State v. Haider Zaidi 2001 SCMR 1919; Ali Muhammad v. The State 1985 SCMR 1834; Yaqoob Khan v. State PLD 1996 SC 97 and Solat Ali Khan v. The State 2002 SCMR 820 ref.

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

----Art. 9---Identification parade---Holding of identification parade is not a requirement of law.

Muhammad Akbar v. The State 1998 SCMR 2538 ref.

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

----S. 365-A---Kidnapping or abduction for extorting property etc.---Determining factor in a case of kidnapping for ransom etc. is the object behind the same; hence the fact that no ransom demand was ever received by the victim's family cannot be given any weight.

State v. Farman Hussain PLD 1995 SC 1 ref.

A.Q. Halepota for Appellants.

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

Dates of hearing: 22nd, 23rd, 24th, 25th February, 1st, 4th, 9th, 10th, 15th and 18th March, 2005,

2005 P Cr. L J 1884

[Karachi]

Before Muhammad Moosa K. Leghari and Zia Perwaz, JJ

MUHAMMAD SHAFQUAT---Appellant\

Versus

THE STATE---Respondent

Criminal J. Appeal No.123 and Confirmation Case No.8 of 1998, decided on 3rd September, 2001.

Penal Code (XLV of 1860)---

----Ss. 302, 324 & 380---Criminal Procedure Code (V of 1898), Ss. 243, 265-E & 265-F---Appreciation or evidence---Plea of guilt---Accused having pleaded guilty, said plea of guilt was recorded and on,-basis of said plea of guilt, accused was convicted and punished---Accused was convicted and was awarded capital punishment on basis of his plea of guilt, but judgment was silent as to whether charge was explained to accused and whether any question was asked from accused as to whether he was pleading guilty voluntarily or under some duress or inducement---Conviction on admission was to be governed by provisions of S. 243, Cr.P.C.---Trial Court relied upon confession of accused recorded before Magistrate---Said confession was not produced on record in accordance with law---Accused was not even confronted with said confession allegedly made by him---Trial Court was under obligation to require accused to show as to why he was pleading guilty---Nothing was on the record to show that admission of guilt by accused was voluntary and that no element of, inducement or duress was involved---Impugned judgment of conviction and sentence recorded in derogation of law, was not maintainable---Said judgment was set aside and case was remanded to Trial Court for trial after framing of charge---If accused would plead guilty, his plea of guilt would be recorded in accordance with law and some material evidence be brought on record and matter should be decided after hearing the parties.

Mehmood Khan v. The State 1991 PCr.LJ 2158; Habib-ur-Rehman v. The State 1997 PCr.LJ 1930; Loung v. The State 1976 PCr.LJ 204 and Tariq, Mehmood v. The State 2000 PCr.LJ 837 ref.

Allah Bachayo Soomro for Appellant.

Muhammad Azeem Panhwar for the State.

Date of hearing: 3rd September, 2001.

2005 P Cr. L J 1889

[Karachi]

Before Rahmat Hussain Jafferi and Wahid Bux Brohi, JJ

NOOR MUHAMMAD KHATTI and others---Appellants

Versus

THE STATE---Respondent

Criminal Accountability Appeals Nos.15 of 2000; 47 of 2001; 4, 21, 43, 62 of 2002, 4, 5, 13, 14, 15 of 2003, 4, 11 and 12 of 2004, decided on 25th November, 2004.

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

----Ss. 10, 18(g) & 31-A---Constitution of Pakistan (1973), Art. 9---Trial in absentia---No procedure had been provided for trial and conviction of accused who had absconded or had avoided service of warrants---Legislature already knew that accused could be tried and convicted in absentia', if so permitted---Detailed procedure had been provided in earlier enactments, but departure had been made in National Accountability Ordinance, 1999 from procedure mentioned in said other earlier enactments which had clearly demonstrated the intention of Legislature that procedure for trial of accused or proceedings in absentia were not permissible under National Accountability Ordinance, 1999---Courts were duty bound to carry out the intention of Legislature while deciding cases---Trial in absentia would violate provisions of Art. 9 of Constitution of Pakistan (1973).

Muharam Ali v. Federation of Pakistan PLD 1998 SC 1445 ref.

(b) Interpretation of statutes---

----Categories of laws---Substantive law and procedural law---Law could be categorized in two categories: substantive law and adjective or procedural law---Under substantive law, acts and omissions had been made offences and punishable; such as Pakistan Penal Code, 1860---Whereas procedural law provided machinery for the punishment of offences against substantive law; such as in Code of Criminal Procedure, 1898---Penal Statute must be construed strictly---Courts were required to be more anxious to protect the liberty of the citizen and to see that an innocent man did not suffer rather than consider question of policy---Where an act involved the freedom of the citizen, the Court was unwilling to give a construction taking away such freedom, whereas procedural law or adjective laws were meant to be used in favour of citizen and for furtherance of justice and not as a means of pressure---Criminal Procedure Code, 1898 being a Code of procedure, like all procedural laws, was designed to further the ends of justice and not to frustrate them by introducing endless technicalities---When there was no provision to the contrary in the special or penal statute, procedure under Criminal Procedure Code would apply for trial of offence under said Statute.

Ganash Narain's case 13 Bombay 590; Abdul Rahman's case 16 Bombay 580; Kola's case 18,Cal. 214; Lakshmi Chand's case 1901 PR 24; Bhupendra v. Secretary, 51 Cr.L.J. 169 and Javery v. Bhagwati 51 Crl.L.J. 736 ref.

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

----S. 17(a)(c)---Applicability of Criminal Procedure Code, 1898---Provisions of Criminal Procedure Code, 1898, which was a self-contained Code for holding of criminal trial, had been made applicable to proceedings under National Accountability Ordinance, 1999 as provided by S. 17(a) of said Ordinance---Where a special Act made special offence and prescribed a special procedure for prosecution of offence, prosecution not in accordance with that special procedure was barred---Section 17(c) of National Accountability Ordinance, 1999, had authorized Accountability Court to dispense with procedure mentioned in Criminal Procedure Code, 1898 and had further authorized the Court to adopt any procedure as deemed fit in circumstances of case on the condition that for dispensing with said procedure, Accountability Court was required to record reasons for doing so---Dispensation of provisions of Criminal Procedure Code, 1898 and following any procedure, would not mean that arbitrary and capricious or procedure against natural justice should be adopted.

Abdul Sattar Molla v. Crown PLD 1953 FC 145 ref.

(d) Criminal trial---

----Natural justice, principles of---Applicability---Scope---Basic principle for trial of any offence was that procedure of trial should be in consonance with natural justice, which was part and parcel of every statute---Principle of "audi alteram partem" (no person should be condemned unheard) was presumed to be included in every statute, in absence- of any provision to the contrary---Natural justice required that accused should be tried by a competent Court---Accused should be told and clearly made to understand the nature of offence for which he was being tried and case against him should be fully and fairly explained to him---Accused should be afforded a full and fair opportunity of defending himself.

Province of East Pakistan v. Nur Khan PLD 1964 SC 451; Maker Wal Callierus Ltd. v. Government of N.-W.F.P. 1993 SCMR 1140; Superintendent of Police v. Abubakar 1972 SCMR 154 and Muhammad v. State PLD 1961 Kar. 709 ref.

(e) Criminal trial---

----If substantial compliance with the outward form of law was made, then mere mistake in procedure, mere inconsequential errors and omissions in the trial would be regarded as venial and the trial would not be vitiated, unless accused could show substantial prejudice caused to him by the same---Criminal Courts existed for administration of justice: and the Courts had inherent powers to mould procedure, subject to the statutory provisions applicable to the matter in hand, to enable them to discharge their functions as Courts of justice---Said power was not capriciously and arbitrarily exercised---Same was to be exercised ex debito justitiae to do real and substantial justice for administration of which alone Courts exist.

Zamir Qasim v. Emperor AIR 1944 All. 137; Imam's case 10 All. 150; Raghubhai v. Bai Arbinda AIR 1937 Cal. 334; Pulim Bhari Das 16 CWN 1105; Bhudhu Lal v. Chutta Gope 44 Cal. 816; Pigol v. Ali Muhammad AIR 1921 Cal. 30; Rahim Shaikh's case 52 Cal. 872 and Md. Majulal Haque v. Bisseswar AIR 1940 3 Cal. 361 ref.

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

----Ss. 10, 17, 18(g) & 31-A---Appreciation of evidence---Trial in absentia---For trial of offence punishable under S. 31-A of National Accountability Ordinance, 1999, no separate procedure having been provided, for the trial of said offence, procedure provided under S. 17(b) of the Ordinance, was required to be followed unless for reasons to be recorded, said procedure was dispensed with---Trial Court in the present case had deviated from well-recognized procedure of trial of offences as mandated by S. 17(b) of National Accountability Ordinance, 1999, without recording reasons for dispensing with said procedure---Provisions of S.31-A of National Accountability Ordinance, 1999 had revealed that prosecution was required to prove firstly that accused was absconder, secondly that Court or any Authority or officer had issued process under said Ordinance, thirdly that accused had absconded with intention to avoid being served with such process, fourthly, the manner in which he evaded or avoided service on himself or concealed himself' with intention to screen himself from proceedings or punishment under said Ordinance---Provisions of S.31-A of National Accountability Ordinance, 1999 being penal in nature, were to be construed strictly---Trial in absentia was not a "trial" within meaning of law.

Iqbal Ahmed Turabi v. State PLD 2004 SC 830; Abdul Qadir v. Atiq Ahmed PLD 2004 Kar. 555; Muhammad Shafi v. Mushtaq Ahmed 1996 SCMR 856; Ali Muhammad v. Hussain Bakhsh PLD 1976 SC 37; Ch. Altaf Hussain and others v. The Chief Settlement Commissioner PLD 1965 SC 68; Sayed Ali Abbas and others v. Vishan Singh and others PLD 1967 SC 294; Malik Khawaja Muhammad and others v. Marduman Baber Kahol and others 1987 SCMR 1543; Mst. Rehmat Bibi and others v. Punun Khan and others 1986° SCMR 962; Allah Dino v. Faqir Muhammad PLD 1969 SC 582; N.M.V. Vellayappa Chettiar v. Alagappa Chettiar AIR 1942 Mad. 289 and Muhammad Ramzan v. State 1991 PCr.LJ 2059 ref.

(g) Interpretation of statutes---

----Basic rule for interpretation of statutes was that sections falling within the Chapter should be interpreted with reference to the matter dealt with by the Chapter.

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

---Ss. 87 & 88---Declaring accused absconder---Person could not be declared absconder for the purpose of issuing proclamation under 5.87, Cr.P.C. if he had already left the country or had no knowledge of issuance of non-bailable warrants against him by the Court.

Abdul Qadir Halepoto, Abdul Haleem Pirzada, M.A. Kazi, Raja Qureshi, Fareed Ahmed A. Dayo, Ms. Asmat Mehdi, Khalid Ahmed, Khuwaja Naveed Ahmed and Ali Ahmed Junejo for Appellants.

Shoukat H. Zubedi, D.P.G., NAB assisted by Amanullah Khan for the State.

Date of hearing: 25th November, 2004.

2005 P Cr. L J 1954

[Karachi]

Before Muhammad Afzal Soomro, J

AMANULLAH SHAIKH and others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.405 to 407 of 2005, decided on 20th June, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.467, 468, 471, 477 & 34---Prevention of Corruption Act (II of 1947), S.5(2)---Bail, grant of---Delay of two years was found in lodging F.I.R. and no plausible explanation had been given for such delay---Most of sections of Penal Code applied in the present case were non-cognizable and some were bailable---Only S.5(2) of Prevention of Corruption Act, 1947 was punishable with imprisonment which could extend to seven years or fine or both and it also did not come under prohibitory clause of S.497(1), Cr.P.C.---State Counsel had conceded to grant of bail to accused---Accused were granted bail, in circumstances.

Saeed Ahmed v. The State 1996 SCMR 1132; Choudhry Muhammad Aslam v. The State 1992 MLD 880 ref.

Asif Ali Abdul Razak Soomro for Applicants.

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

2005 P Cr. L J 1963

[Karachi]

Before Rahmat Hussain Jafferi, J

MUHAMMAD SALEEM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.260 of 2005, decided on 14th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Bail, refusal of---Identification test was conducted by Judicial Officer through two eye-witnesses before alleged torture upon accused in which said two witnesses had picked out accused to be one of culprits---Another piece of evidence against accused was recovery of rifle---Said evidence though was collected after alleged torture, but that evidence could be examined at the trial when entire evidence would be brought before Trial Court including the evidence of alleged torture on the accused, which required deeper appreciation of evidence, but at bail stage only tentative assessment of evidence was required to be conducted---If some benefit of recovery of rifle be given to accused even then there was evidence of identification test of two eye-witnesses which connected accused with commission of crime---Reasonable grounds being available to believe that accused was involved in the case which fell under prohibitory clause of S.497, Cr.P.C., accused was not entitled to concession of, bail, bail application of accused was dismissed.

S. Mushtaque Hussain Shah for Applicant.

Muhammad Mahmood Khan Yousifi, A.A.-G. for the State.

2005 P Cr. L J 1976

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

MANZOOR HUSSAIN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-187 of 2005, decided on 15th June, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.465/466/467/471/34---Prevention of Corruption Act (II of 1947), S.5(2)---Bail, grant of---Prosecution case entirely depended upon documentary evidence which being in possession of the prosecution, tampering with the same was not possible---Vendees according to the sale-deed were the owners of the land---Allegation against the accused regarding fabrication of the documents would be established by the Trial Court after recording evidence and their complicity in the same was yet to be determined---Offence against the accused did not fall within the prohibitory clause except S.467, P.P.C. which was yet to be proved---Accused were no more required for further investigation---Two co-accused had already been granted bail by the Trial Court---Accused were admitted to bail in circumstances.

Saeed Ahmed v. The State 1996 SCMR 1132; Fazal Illahi and another v. The State 2004 SCMR 235; Saeed Ahmed v. The State 1995 SCMR 170 and Sharafuddin v. The State 2001 YLR 812 ref.

Imdad Ali Awan and Shoukat Ayaz Awan for Applicants.

Muhammad Mehmood S. Khan Yousifi, Assn. A.-G. along with Abdul Rehman Memon, the then Circle Officer, and S. Rafique Muhammad Shah, Circle Officer, Anti-Corruption Establishment, Sukkur.

2005 P Cr. L J 1998

[Karachi]

Before Sarmad Jalal Osmany and Azizullah M. Memon, JJ

ABU BAKAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.393 of 2004, decided on 21st June, 2005.

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

----S. 9(b)---Criminal Procedure Code (V of 1898), S.537---Appreciation of evidence---Sentence, reduction in---Accused had not denied his arrest on the day of incident---Pleas taken by accused regarding his mala fide arrest by the police due to enmity and his refusal to pay the demanded money, were not substantiated by him through any cogent evidence--Suggestions put to the prosecution witnesses on behalf of the accused were denied by them---Besides the complainant two other Police Officers, examined as prosecution witnesses, had fully corroborated each other, against whom no mala fide intention was established by the accused---Arrest of accused in the case by an officer below the rank of an A.S.-I. could not vitiate the trial which was an irregularity curable under S.537, Cr.P.C.---Accused having been arrested in the evening by the police party during routine patrolling, search warrant could hardly be obtained by the complainant---Delay in sending the sample to the Chemical Laboratory was of no significance as no question were put to the prosecution witnesses in cross-examination regarding the case property either having been tampered with or the sample thereof having not been sent to the Chemical Examiner for analysis---Accused even had not disputed that the case property produced in the Court was not the same which was recovered from him---Conviction of accused was maintained in circumstances, but since he was a first offender and only 150 grams of "Charas" was recovered from him, his sentence of three years' R.I. was reduced to the imprisonment already undergone by him.

State v. Hemjoo 2003 SCMR 881 distinguished.

Khan Muhammad v. The State PLD 2004 Kar. 681; Muhammad Hashim v. The State PLD 2004 SC 856; Shamore v. The State PLD 2003 Kar. 230; Sarwar Jan v. The State 2004 PCr.LJ 1224; Tariq Pervez v. State 1995 SCMR 1345; Mian Muhammad Arshad v. The State 2003 PCr.LJ 865; Muhammad Hanif v. The State 2003 SCMR 1237; Ali Muhammad v. The State 2003 SCMR 54; Muhammad Ali v. The State 2002 PCr.LJ 976 and Gharibullah v. The State 2002 YLR 3822 ref.

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

----Ss. 9(b), 21 & 22---Criminal Procedure Code (V of 1898), 5.537-Violation of Ss.21 & 22 of the C.N.S. Act does not vitiate the trial---Arrest of accused by an officer below the rank of A.S.-I. in violation of the provisions of Ss.21 & 22 of the Control of Narcotic Substances Act, 1997, would not vitiate the trial of accused, but is a mere irregularity curable under S.537, Cr.P.C.

Muhammad Hanif v. The State 2003 SCMR 1237 ref.

Qadir Khan for Appellant.

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

Date of hearing: 16th February, 2005.

2005 P Cr. L J 2004

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

GHULAM SARWAR and 16 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.112 of 2005, decided on 20th June, 2005.

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

----S. 497---Penal Code (XLV of 1860), Ss.221/222/223/128/225(iii)---Police Order (22 of 2002), Art.155(c)(d)---Bail, grant of---Three F.I.Rs. were registered in the case---Narration of the incident in two F.I.Rs. was common, but in the third F.I.R. different version was given for the same crime at the same police station---Complainant was not the eye-witness of the incident, but he had reached there after hearing the fire-shot reports---Statements of the prosecution witnesses were recorded after a delay of eight days, although all of them belonged to police force and no plausible explanation was furnished thereof---Four police officials were let off during investigation, but on the basis of same evidence one accused who had sustained injuries at the time of occurrence had been charge-sheeted---Accused being working police officials were not likely to abscond---Prosecution evidence also was not likely to be tampered with, as the complainant and the prosecution witnesses all were police officials---Accused were admitted to bail in circumstances.

Syed Amanullah v. The State and others PLD 1996 SC 241; Shoaib Mehmood Butt v. Iftikhar-ul-Haque and 3 others 1996 SCMR 1845; Muhammad Saleem v. The State 1998 PCr.LJ 1894; Manzoor Hussain v. The State 2004 YLR 3271 and Tarique Bashir v. The State PLD 1995 SC 34 ref.

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

----S. 497---Bail, grant of---Principle---Freedom of an individual is his precious right---Whenever reasonable doubt arises with regard to the participation of an accused in the crime or about the truth/probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail---In such situation, it would be better to keep the accused on bail than in jail.

Syed Amanullah v. The State and others PLD 1996 SC 241 ref.

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

----S. 497(2)---Bail, grant of---Further inquiry---Counter-version normally makes the case of further inquiry---In case of counter-version arising from the same incident, one given by the complainant in the F.I.R. and the other given by the opposite party, bail is normally granted on the ground of further inquiry as contemplated under S.497(2), Cr.P.C. because it is yet to be decided by the Trial Court as to which version is correct and which party has acted in aggression.

Shoaib Mehmood Butt v. Iftikhar-ul-Haque and 3 others 1996 SCMR 1845 ref.

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

----S. 497---Bail, grant or refusal of---Principles---Section 497, Cr.P.C. has divided non-bailable offences into two categories i.e. (i) offences punishable with death, imprisonment for life or imprisonment for ten years, and (ii) offences punishable with imprisonment for less than ten years---Inn non-bailable offences falling in the second category grant of bail is a rule and refusal an exception---Bail in such offences will be declined only in extraordinary and exceptional cases, for example where there is a likelihood of abscondence of accused, where there is apprehension of the accused tampering with the prosecution evidence, where there is danger of the offence being repeated if the accused is released on bail, or where the accused is a previous convict.

Tarique Bashir v. The State PED 1995 SC 34 ref.

Imdad Ali Awan for all the Applicants except Applicant No.12.

Abdul Latif Channa for Applicant No.12.

Zubair Ahmed Rajput for the State.

2005 P Cr. L J 2027

[Karachi]

Before Muhammad Moosa K. Leghari, J

HAJI KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.294 of 2005, decided on 23rd May, 2005.

(a) Criminal trial---

----Appreciation of evidence---Police witnesses---Principle---No doubt, police officials are not restricted to act as witnesses, but simultaneously they are not altogether immune from the test of credibility---Evidence of police officials has to be considered with due care and extra caution.

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

----S. 497---Penal Code (XLV of 1860), S.399/402---Bail, grant of---Despite only a "Lathi" allegedly having been recovered from the possession of accused, he was refused bail by the Sessions Court by taking into consideration the conduct of other accused persons, that too on the basis of police report, which was absolutely irrelevant and uncalled for---Such practice was highly undesirable and deprecable---Paramount consideration would be whether a person found in the rural area with a "Lathi" in hand during night time could be accused of the offence of making preparations to commit dacoity---Police admittedly had not recovered anything else either from the accused or from the place of Wardat---Despite that Sessions Court, instead of proceeding with the bail application on the basis of material available on record, proceeded to call for the report from the police, giving an impression of lack of confidence and courage to act independently, and decide judiciously---Accused being entitled to grant of bail was granted same , accordingly.

Muzafar Ali Leghari for Applicant.

Anwar H. Ansari for the State.

2005 P Cr. L J 2032

[Karachi]

Before Muhammad Sadiq Leghari, J

REHMATULLAH alias REHMAT ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.253 of 2005, decided on 20th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497-Penal Code (XLV of 1860), S. 302---Bail, grant of---Eye­witnesses though had implicated accused, but neither dead body was recovered by police during entire exercise of investigation nor any crime weapon was alleged to have been recovered from accused---Second investigation also proved accused to be innocent---Accused who had a case for bail, was granted same, in circumstances.

Muhammad Ayaz Soomro for Applicant.

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

2005 P Cr. L J 135

[Lahore]

Before M.A. Shahid Siddiqui, J

KHAN MUHAMMAD ---Appellant

Versus

THE STATE--Respondent

Criminal Appeal No.348 of 2003, heard on 5th May, 2004.

Penal Code (XLV of 1860)---

----Ss. 302/308---Appreciation of evidence---Fate of the case against accused hinged on the testimony of two witnesses---One of said witnesses in his examination-in-chief did depose about occurrence, but in his cross-­examination he disclosed that occurrence was in fact narrated to him by his deceased father---Other prosecution witness, who was father of deceased lady was declared hostile as he had not deposed about occurrence---In absence of any evidence about the occurrence recovery of hatchet and medical evidence furnished by Lady Doctor, had become inconsequential---Occurrence though had certainly taken place in the house of accused, but that fact alone would not prove that deceased was assaulted and injured by accused---Prosecution having failed to discharge the onus, conviction and sentence recorded against accused by Trial Court, were set aside and accused was acquitted of charge and was set at liberty.

Muhammad Ramzan Khokhar for Appellant.

Sh. Arshad Ali for the State.

Date of hearing: 5th May, 2004.

2005 P Cr. L J 144

[Lahore]

Before Tanvir Bashir Ansari, J

Sheikh MUREED HUSSAIN ---Petitioner

Versus

S.H.O. POLICE STATION KOHSAR, ISLAMABAD and 2 others---Respondents

W.P. No.841 of 2004, heard on 13th April, 2004.

Penal Code (XLV of 1860)---

----S. 489-F---Constitution of Pakistan (1973), Art. 199---Quashing of F.I.R.---Petition for---Notice placed on record issued through counsel on behalf of petitioner to respondent, had explained circumstances in which cheque in dispute was issued---Even according to investigation carried out by police, petitioner/accused had been found prima facie innocent--­Lodging of F.I.R. was the result of ulterior motive which had been negatived even during police investigation---Constitutional petition for quashing of F.I.R. was allowed and F.I.R. registered under S.489-F, P.P.C. was directed to be quashed.

Malik Rab Nawaz Noon for Petitioner.

Muhammad Munir Peracha for Respondent No.3/Complainant

Muhammad Tanvir Iqbal A.A.-G along with Muhammad Arshad, S.-I. for Respondents.

Date of hearing: 13th April, 2004.

2005 P Cr. L J 154

[Lahore]

Before Nasim Sabir, J

ZULFIQAR ALI and another---Petitioners

Versus

THE STATE---Respondent

Crl. Misc. No.1566-B of 2004, decided on 23rd June, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.337-A(i)/337-A(ii)/337-L (2)/337-F(ii)/337-C/324/34---Bail, grant of---Further inquiry---Case of cross-version-- Both parties had suffered injuries and it could not be determined at bail stage as to which party was aggressor---Such cases were covered for grant of bail on the ground of further inquiry under S.497(2), Cr.P.C. and normally, bail was granted on such ground for the reason that question as to which of the versions was correct, was to be decided by the Trial Court after recording evidence and also appraising same in order to come to a final conclusion in that regard---Case against accused not falling within prohibitory clause of S.497, Cr.P.C., he was entitled to be released on bail.

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

Altaf Ibrahim Qureshi for Petitioners.

Farooq Ahmed for the State.

Date of hearing: 23rd June, 2004.

2005 P Cr. L J 157

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD SIDDIQUE---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No. 1241-B of 2004, decided on 11th May, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/337-A(ii)/337-F (i)(v)/337-L(ii)/148/149---Bail, grant of---Further inquiry---No specific injury either to deceased or to anyone else had been ascribed to accused in F.I.R.---Both parties had fired at each other and during same, deceased and others from both sides had sustained injuries ---Question of vicarious liability of accused was to be gone into at trial---Case of accused, in circumstances, was one of further inquiry into his guilt covered under subsection (2) of S.497, Cr.P.C.---Accused, in circumstances was admitted to bail.

Abdul Salam Alvi for Petitioner.

Miss Asia Abbasi for the State.

Nadeem Ahmad Tarar, for the Complainant.

Date of hearing: 11th May, 2004.

2005 P Cr. L J 164

[Lahore]

Before Nasim Sabir, J

Mst. AFSAR BIBI---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No.580-B of 2004, decided on 15th March, 2004.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.324/334/337-A(ii)/337­F(i)/148/149--Bail, grant of---Further inquiry---Prosecution version as given in F.I.R. had been belied by supplementary statement made by victim recorded after one month and six days of occurrence---Question as to which of the two versions was correct, was yet to be decided after recording of evidence at the trial stage---Third version had also been put forward by accused herself where she had stated that she was subjected to rape and in order to save herself, she had used knife and had injured victim, which resulted in chopping off his penis---Case against accused was not free from doubt and fell under ambit of further inquiry---Accused being lady, her case was covered under first Proviso to S.497, Cr.P.C., entitling her to be released on bail---Wisdom behind said Proviso to S.497, Cr.P.C. was to protect women from the rigors of imprisonment before trial and also to save women from atmosphere of jail which was not congenial to women, children, minors and old age persons---Case against accused falling under the ambit of further inquiry, she was directed to be released on bail.

Altaf Ibrahim Qureshi for Petitioner.

Rao Amjad for the State.

Ch. Saghir Ahmad Bhatti for the Complainant.

Muhammad Aslam, S.-I. with police record.

Date of hearing: 15th March, 2004.

2005 P Cr. L J 172

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD RAFIQUE and 4 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.69, 70, 121 and Criminal Revision No.55 of 2000, heard on 17th February, 2004.

Penal Code (XLV of 1860)----

----Ss. 302(b)/148/149---Appreciation of evidence---All three eye­witnesses were closely related inter se and with deceased---Was established on record that both parties were inimical to each other and that eye-witnesses were not independent witnesses---Motive was always a double-edged weapon---If accused had motive to murder deceased, eye-witnesses had also motive to falsely implicate accused---One prosecution witness, during cross-examination, had stated that police had recorded statement of the other prosecution witness at the spot, it had become doubtful, in circumstances that F.I.R. was lodged at the Police Station immediately after incident---Other two prosecution witnesses had also stated that their statements were not recorded by police---Other prosecution witness had also failed to identify articles lying at a distance of 10 feet in the Court room---Said witness had also failed to point out seat of injuries on person of female deceased---Said witness was established to have weak eye-sight and possibility could not be ruled out that he could not identify culprits and witness occurrence, but made statement against accused due to previous enmity---Statement of complainant was also not worthy of reliance as he was resident of six Biggas away from place of occurrence and had failed to show his presence at the spot by giving plausible reasons---One prosecution witness had tried to suppress certain facts which otherwise were proved on record by submission of documentary evidence by prosecution and said documents were duly accepted---All three eye-witnesses were inimical towards accused and no evidence was to provide independent corroboration to their statements, it was thus, not safe to rely upon oral statements of such eye-witnesses alone to maintain conviction of accused in a case of capital charge---Case was of two versions, one was given in F.I.R. and other came on record during investigation---Finding of police, no doubt was not binding on the Court, but it could not be ignored that six police officers had declared accused as innocent during successive investigations and number of persons appeared in support of innocence of accused---Prosecution having failed to bring home guilt of accused beyond any shadow of doubt, impugned judgment of conviction and sentence was set aside and accused were acquitted of charge by extending them benefit of doubt:

Sh. Muhammad Farooq for Appellants.

Sh. Jamshed Hayat for the Complainant.

Anwar-ul-Haq for the State.

Dates of hearing; 16th and 17th February, 2004.

2005 P Cr. L J 197

[Lahore]

Before Muhammad Akram Baitu, J

SAIF‑UR‑REHMAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Crl. A. No.37 of 1998, heard on 21st June, 2004.

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

‑‑‑‑S. 5(2)‑‑‑Penal Code (XLV of 1860), S.161-‑‑Appreciation of evidence‑‑‑One of prosecution witnesses had admitted in his cross­-examination that he had not seen complainant passing on money to accused‑‑‑Said witness had further admitted that he had also not heard conversation between complainant and accused‑‑‑Special Magistrate while appearing as prosecution witness had admitted during cross‑examination that he could not see complainant actually handing over bribe money to accused from place where he was present‑‑‑Said prosecution witness had further admitted that he also could not overhear conversation between complainant and accused‑‑‑Complainant while appearing as prosecution witness had deposed that raiding Magistrate recorded proceedings at Police Station‑‑‑Prosecution in view of testimony of said prosecution witnesses had failed to bring home charge against accused beyond any shadow of doubt‑‑‑Trial Court in circumstances was not justified in believing upon such‑like evidence to pass impugned conviction and sentence of accused‑‑‑Conviction and sentence recorded by Trial Court against accused were set aside and he was acquitted of charge by giving him benefit of doubt.

Muhammad Zafar v. The State PLJ 1996 Cr.C. (Lahore) 263 ref.

Sh. Jamshed Hayat for Appellant.

Rao Atif Nawaz for the State.

Date of hearing: 21st June, 2004.

2005 P Cr. L J 205

[Lahore]

Before Nasim Sabir, J

MUNIR AHMED‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No. 1446‑B of 2004, decided on 4th June, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.334/337‑A(ii)/337‑L(ii)/34‑‑‑Bail, grant of‑‑Further inquiry‑‑‑Accused was not armed with knife at the time of occurrence and he allegedly had injured the ear of complainant by biting‑‑‑According to Investigating Officer S.334, P.P.C. was not attracted in the case and fell under Ss.337‑A(ii)/337‑L(ii)/34, P.P.C. which did not fall within the prohibitory clause of S.497, Cr.P.C.‑‑‑No knife had been recovered from accused despite lie remained under a lengthy judicial remand‑‑‑Accused, who was behind the bars since his arrest, was no more required by police for further investigation‑‑‑Co‑accused had already been released on bail‑‑‑Case against accused falling within the ‑ambit of further inquiry, he was released on bail.

Muhammad Tariq Nadeem for Petitioner.

Atif Nawaz for the State.

Date of hearing: 4th June, 2004.

2005 P Cr. L J 207

[Lahore]

Before Tassaduq Hussain Jilani and Muhammad Sayeed Akhtar, JJ

MUHAMMAD BILAL‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No.2150‑B of 2004, decided on 26th April, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss.6/9‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Case of prosecution was that a bag containing "Posst" weighing 50 Kgs. was recovered from accused who allegedly admitted to have carried said bag at the asking of his father to be delivered to some other person‑‑‑Father of accused or said other person were not joined in investigation‑‑‑Accused, who was between 13/14 years of age, could not carry such a heavy bag‑‑‑Non‑association of father of accused and said other person to whom said bag was to be delivered, had made question of accused's guilt a matter of further inquiry‑‑‑Accused was admitted to bail, in circumstances.

Mushtaq Ahmad Chaudhry for Petitioner.

Mushtaq Ahmad Bhatti for the State.

Date of hearing: 26th April, 2004.

2005 P Cr. L J 213

[Lahore]

Before Muhammad Akram Baitu, J

MUHAMMAD ARSHAD‑‑‑Petitioner

Versus

THE STATE and others‑‑‑Respondents

Cr. Rev. No.451 of 2003, decided on 24‑2‑2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 435/439‑‑‑Direction to register criminal case‑‑‑Parties in the case were husband and wife and suit for dissolution of marriage filed by wife against petitioner was pending adjudication before competent Court‑‑­Wife filed application before Additional Sessions Judge that petitioner and others forcibly entered into house of her parents where she was residing and had looted certain household articles on gun point‑‑‑Wife prayed that direction be given to police to register criminal case against petitioner‑‑‑Additional Sessions Judge accepting her application directed police to register criminal case against petitioner without hearing him‑‑­Petitioner had challenged direction of Additional Sessions Judge in his revision petition before High Court‑‑‑In inquiry held by police it had been found that story of wife of petitioner was false, concocted and frivolous‑‑‑Additional Sessions Judge, therefore, was not justified to pass impugned order without hearing petitioner‑‑‑Police after conducting inquiries having found story of wife as false, concocted and frivolous and petitioner having been condemned unheard, impugned order would not stand in the eye of law and it called for interference of High Court in revision‑‑‑High Court accepting revision petition filed by petitioner, set aside impugned order.

Muhammad Rahman Khokhar for Petitioner.

Ch. Muhammad Akram for Respondent No.3.

Date of hearing: 24th February, 2004.

2005 P Cr. L J 240

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD MATTEEN‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No. 1367/B of 2004, decided on 20th May, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/16‑‑‑Penal Code (XLV of 1860), S.380‑‑‑Bail, grant of‑‑­Further inquiry‑‑‑Accused had claimed that co‑accused was his legally wedded wife and that Nikahnama shown by complainant showing Nikah of co‑accused with other one was fabricated one‑‑‑Case was of two Nikahnamas and question that which of them was correct, needed consideration‑‑‑Case against accused in circumstances required further inquiry into guilt of accused under S.497(2), Cr.P.C.‑‑‑Accused who was behind the bars since long was a previous non‑convict‑‑‑Accused was admitted to bail, in circumstances.

Abdul Salam Alvi for Petitioner.

Muhammad Sabir Qureshi for the State.

Date of hearing: 20th May, 2004.

2005 P Cr. L J 252

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Mst. SADDAN‑‑‑Appellant

Versus

THE STATE and 2 others‑‑‑Respondents

Criminal Appeal No.887 of 2003, decided on 27th April, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 249‑A, 417(2‑A), 561‑A‑‑‑Penal Code (XLV of 1860), Ss.379/440/148/149‑‑‑ Appeal against acquittal‑‑‑Case against accused was at the stage of investigation and accused were only produced for further remand when they were acquitted of the charge‑‑‑Such was not the stage to exercise powers under S.249‑A, Cr.P.C.‑‑‑Accused could be acquitted of charge under S.249‑A, Cr.P.C. at any stage of the case, but during pendency of trial which initiated after submission of report under S.173, Cr.P.C.‑‑‑Trial Court, in circumstances had committed material illegality in passing impugned acquittal order‑‑‑Magistrate under S.249‑A, Cr.P.C. was bound to issue notice to the State and that discretion could only be exercised after hearing both parties, but after submission of challan in the Court‑‑‑Police had also found the case false during investigation and recommended for cancellation of same as claimed by accused, and if any report in that regard was produced before Magistrate, it was directed that Magistrate would pass orders thereon in accordance with law‑‑‑Accepting appeal impugned order of acquittal was set aside and case was remanded for decision afresh.

Altaf Ibrahim Qureshi for Appellant.

Ch. Muhammad Akram for Respondents Nos.2 and 3.

Muhammad Qasim Khan, A.A.‑G.

Date of hearing: 27th April, 2004.

2005 P Cr. L J 265

[Lahore]

Before Asif Saeed Khan Khosa and Sardar Muhammad Aslam, JJ

INAYAT and another‑‑‑Appellants

Versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No. 104‑J and Murder Reference No. 127 of 2000, heard on 18th October, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Accused had admitted that he had committed murder of his wife and his cousin but had maintained in his statement that he had committed said murders on account of Ghairat' after finding two deceased indulging in sexual intercourse with each other ‑‑‑Accused had failed to produce any evidence to establish plea of grave and sudden provocation orGhairat' advanced by him before Trial Court‑‑‑Plea of accused that case against him attracted provisions of S.302(c), P.P.C. and not those of S.302(b), P.P.C., could not be accepted‑‑‑Legal heirs of deceased wife of accused had entered into a compromise with accused and they had offered no objection to acquittal of accused on said count‑‑‑Trial 'Court to which matter of compromise was referred, had felt satisfaction with the genuineness, voluntariness and completion of acclaimed compromise between accused and heirs of his deceased wife‑‑‑Criminal appeal of accused to the extent of conviction and sentence of accused pertaining to murder of his deceased wife was allowed and his conviction and sentence were set aside on account of compromise arrived at between accused and legal heirs of his deceased wife and he was acquitted of the charge to that extent.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Conviction and sentence of accused to the extent of murder of his wife were set aside in view of compromise arrived at between accused and legal heirs of deceased wife, but there being no compromise between accused and legal heirs of the other deceased (cousin of accused), conviction of accused to the extent of murder of cousin of accused was maintained and upheld‑‑‑Sentence of death passed by Trial Court against accused for murder of his cousin, however, was reduced to imprisonment for life as he had not committed murder of deceased with any premeditation‑‑‑As said deceased had lost his .life in pursuance of an immoral and illegal purpose; order passed by Trial Court regarding payment of compensation by accused to heirs of said deceased, was set aside.

Ch. Sajjad Tabassam with Mian Saeed‑ud‑Din Ahmad (Defence Counsel) for Appellant (at State expense).

Ch. Muhammad Nazir for the State.

Date of hearing: 18th October, 2004.

2005 P Cr. L J 292

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD TARIQ QURESHI‑‑‑Petitioner

Versus

SHAHID KHAN, DIRECTOR‑GENERAL LAHORE DEVELOPMENT AUTHORITY and 4 others‑‑‑Respondents

Crl. Orgs. Nos.243/W and 450/W of 2003 in Writ Petition No.6971 of 1994, decided on 21st October, 2004.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 204, 4, 5(2), 189, 190 & 201‑‑‑Contempt of Court‑‑‑Obedience to Constitution‑‑‑Duty and function of public functionaries‑‑‑Everybody was bound to obey command of Constitution in view of Art.5(2) of Constitution‑‑‑Nobody should be penalized by inaction of public functionaries and public functionaries were also duty bound to act in accordance with law in view of Arts.4, 189, 190 & 201 of the Constitution‑‑‑Laws were made to act within the frame‑work of law and Constitution and not merely on Statute Book‑‑‑Constitution .was based on Trichotomy ‑‑‑Public functionaries if allowed to bye‑pass the direction of High Court, then it would create chaos, which would bring a situation minimizing the State concept of Sovereign Islamic State minus a strong and independent judiciary which was unimaginable‑‑‑If the judiciary of the country was stripped of, its power, the country would cease to exist as free nation‑‑‑Everybody had to, work within the command of Constitution and law and should not hesitate to discharge his duties in accordance with law and Constitution otherwise the rule of Jungle would prevail which was not in the interest of country and nation‑‑ People of Pakistan must be provided justice by all organs of State and everybody has to work honestly, fairly and justly for purpose of building of national character.

Pir Bakhsh v. The Chairman Allotment Committee and others PLD 1987 SC 145; Ahmad Latif Qureshi v. Controller of Examiner, Board of Intermediate and Secondary Education, Lahore PLD 1994 Lah. 3; Ch. Zahoor Elahi's case PLD 1975 SC 383; Messrs Nishat Mills Limited v. Government of Pakistan and others 1989 CLC 1692; Works Cooperative Housing. Society and another v. The Karachi Development Authority PLD 1969 SC 430; Capt. (R.) Abdul Qayyum Executive Engineer v. Muhammad Iqbal Khokhar and 4 others PLD 1992 SC 184; N.E.D. University of Engineering and Technology v. Imtiaz Ali 2001 SCMR 832; State v. Tariq Aziz and 6 others 2000 SCMR 751; Messrs Airport Support Service v. The Airport Manager, Karachi 1998 SCMR 2268; Shaukat Ali and others v. Government of Pakistan Ministry of Railways and others PLD 1997 SC 342; Supreme Court Bat Association of Pakistan v. Federation of Pakistan and others PLD 2003 SC 82; Mst. Safia Bibi v. Mst. Aisha Bibi 1982 SCMR 494; Tarit Kanti Biswas's case AIR 1918 Cal. 988 and Mst. Amina Begum and others v. Mehr Ghulam Dastgir PLD 1978 SC 220 ref.

Ch. Riasat Ali for Petitioner.

Mian Muzaffar Hussain for Respondents.

2005 P Cr. L J 306

[Lahore]

Before Ch. Iftikhar Hussain, J

ZAFAR IQBAL‑‑‑Petitioner

Versus

IMTIAZ AHMAD and another‑‑‑Respondents

Criminal Miscellaneous No.4215/CB of 2004, decided on 17th June 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), Ss.337‑A(i)(ii)/337‑L(ii)/34‑‑‑Bail, grant of‑‑‑Delay of about 28 hours in conducting medical examination of injured and five days' delay in lodging F.I.R. which had not been explained, had created doubt qua the truth of prosecution story contained in F.I.R.‑‑‑Real brother and mother of accused had been found innocent by the police although they were assigned one injury each specifically to the injured‑‑‑Such finding of their innocence had given rise to the element of doubt in respect of the story as contained in F.I.R. and such benefit of doubt was to be given to other accused‑‑‑Accused had remained in jail and offence alleged against him did not fall within the prohibitory clause of S.497, Cr.P.C.‑‑‑Complainant could not prove that accused had extended threat to his life‑‑‑Reasons advanced by Trial Court in granting bail to accused were sound and legal‑‑‑Application for cancellation of bail, was dismissed in circumstances.

Afzal Ahmad v. The State 2003 SCMR 573 and Piaro v. The State and another 1984 PCr.LJ 149 ref.

Ch. Muhammad Lehrasib Khan Gondal for Petitioner.

2005 P Cr. L J 323

[Lahore]

Before Sh. Abdul Rashid and M. Bilal Khan, JJ

MUHAMMAD SHAHZAD‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No.6242/B of 2004, decided on 18th October, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss.6/9‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Inspector/S.H.O. had frankly conceded that F.I.R. and recovery memos whereby intoxicants had been recovered from ‑ accused and his co‑accused were allegedly drafted by him, were not in his handwriting and, that he had merely signed those documents‑‑‑Inspector was unable to name the person or police official who had drafted F.I.R. and both recovery memos‑‑‑Very drafting of F.I.R. and recovery memos whereby narcotics substances were recovered from accused and his co‑accused had been rendered doubtful which had made recovery of intoxicants from accused a matter of further inquiry‑‑­Bail was allowed to accused, in circumstance.

Aazir Latif Khan for Petitioner.

Najeeb Faisal Chaudhry,. Addl. A.‑G. with Malik Muhammad Arif Bara for the State.

Date of hearing: 18th October, 2004.

2005 P Cr. L J 333

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD KHALID JAVAID and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.372 and Criminal Revision No.311 of 2003, heard on 24th May, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(c)/34‑‑‑Appreciation of evidence‑‑Complainant party had received only five injuries whereas the accused party had sustained sixteen injuries, some of them on the hands; during the occurrence‑‑­Accused had been medically examined on the very day of the incident‑‑­Injuries on the persons of the accused were suppressed in the F.I.R. and, also before the Trial Court‑‑‑A party having approached the Court with unclean hands was not entitled to any relief‑‑‑Accused had been aggressed by the complainant party and the number and seats of injuries on their person, had clearly demonstrated that they had acted in the right of self‑defense and did not exceed the same‑‑‑Accused were acquitted in circumstances.

Mian Mukhtar Ahmad for Appellants.

Amjad Iqbal for the State.

Munir Ahmad Bhatti for the Complainant.

Date of hearing: 24th May, 2004.

2005 P Cr. L J 346

[Lahore]

Before Khawaja Muhammad Sharif, J

ABDUL GHAFOOR alias GOORA‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.2056 of 2002, 835 and Criminal Revision No.448 of 2004, heard on 31st May. 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 324‑‑‑Appreciation of evidence‑‑‑Nothing was available on record except the oral testimony about weapon with which the deceased was injured‑‑‑Medical evidence did not specify any weapon of offence used on the victim‑‑‑Presence of eye‑witnesses on the spot at the relevant time was not free from doubt‑‑‑No weapon of offence was recovered from the accused during investigation‑‑‑Despite alleged indiscriminate firing by five accused persons not even a single crime‑empty was secured from the place of occurrence‑‑‑Best witness for the motive having not stated anything in this regard before the Court, motive as alleged was disbelieved‑‑‑Except the oral testimony of the two eye-witnesses, whose presence at the scene of occurrence was not established, no corroboration from any source whatsoever was available on record against the accused‑‑‑Accused was acquitted on benefit of doubt in circumstances.

Naveed Inayat Malik for Appellant.

S.D. Qureshi for the State.

Nusrat Javed Bajwa for the Complainant.

Date of hearing: 31st May, 2004.

2005 P Cr. L J 357

[Lahore]

Before M.A. Shahid Siddiqui, J

Pir ABDUL QAYYUM SHAH‑‑‑Petitioner

Versus

S.H.O. and 4 others‑‑‑Respondents

Crl. Revision No. 171 of 2004, decided on 26th May, 2004.

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

‑‑‑‑Ss. 22‑A & 6‑‑‑Justice of the peace not a Court‑‑‑Office of the Justice of the peace is not a Court as envisaged under S.6, Cr.P.C.

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

‑‑‑‑Ss. 22‑A, 25, 435 & 439‑‑‑Revision petition ‑‑‑Competency‑­--Additional Sessions Judge entertaining an application under S.22‑A, Cr.P.C. did not act as an inferior Criminal Court within the meaning of S.435, Cr.P.C.‑‑‑Impugned order passed by the Additional Sessions Judge dismissing the complainant's application moved under S.22‑A, Cr.P.C., was in fact an order passed by a Justice of the Peace under Ss.22‑A and 25 Cr.P.C. which being an administrative or supervisory in nature was not amenable to the Revisional jurisdiction of High Court‑‑­Revision petition was dismissed accordingly.

Pir Muhammad Asif Rafi for Petitioner.

2005 P Cr. L J 364

[Lahore]

Before Khawaja Muhammad Sharif, J

MUNAWAR IQBAL‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1544 of 2002, heard on 4th June, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Out of three eye‑witnesses only one witness was examined by the prosecution who was not resident of the place of occurrence‑‑‑Accused according to F.I.R. was armed with a .12 bore gun but during investigation a carbine was recovered from him‑‑­Crime‑empty recovered from the spot appeared to have been maneuvered to match with the said carbine‑‑‑Incident had occurred in dark hours of the night‑‑‑Statement of the eye‑witness was not corroborated by any source‑‑‑Motive for the occurrence was disbelieved‑‑‑Co‑accused who was attributed the same role as attributed to accused in causing injury to the deceased had been acquitted by the Trial Court and his acquittal was not challenged by the prosecution or the complainant‑‑‑Prosecution case was replete with doubts, benefit of which was to go to the accused‑‑­Accused was acquitted in circumstances.

Syed Zahid Hussain Bukhari for Appellant.

Malik Suleman Awan for the State.

Date of hearing: 4th June, 2004.

2005 P Cr. L J 369

[Lahore]

Before M.A. Shahid Siddiqui and Nasim Sabir Ch., JJ

GHULAM HUSSAIN ‑‑‑Appellant

Versus

HAIDER ALI alias HAIDRI and 2 others‑‑‑Respondents

Cr. A. No. 14‑ATA of.2003, decided on 1st December, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 417‑‑‑Explosive Substances Act (VI of 1908), S.4‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.25‑‑‑Appeal against acquittal‑‑‑Accused were tried by Anti‑Terrorism Court under S.4 of Explosive Substances Act, 1908 on complaint/statement of appellant, but accused were acquitted of charge against them and appellant/complainant filed appeal against acquittal order‑‑‑Accused having been tried under Anti‑Terrorism Act, 1997, judgment of Anti‑Terrorism Court in case of conviction could be challenged in appeal by accused under subsection (3) of S.25 of Anti­-Terrorism Act, 1997 within seven days of passing of sentence and in case of acquittal, Attorney General, Deputy Attorney General, Standing Counsel, Public Prosecutor or Special Prosecutor, etc. were competent to file appeal under subsection (4) of S.25 of Anti‑Terrorism Act, 1997‑‑­Appellant/complainant was not competent to file appeal against acquittal order in his private capacity‑‑‑Appeal filed by appellant/complainant being incompetent, was dismissed.

Tariq Zulfiqar Ahmed Choudhary for Appellant.

2005 P Cr. L J 370

[Lahore]

Before Ali Nawaz Chowhan and Rustam Ali Malik, JJ

SANAF GUL alias SUNNY‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.364 and 365 of 1999, heard on 1st December, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 397, 234 & 561‑A‑‑‑Control of Narcotic Substances Act (XXV of 1997), S.9‑C‑‑‑Penal Code (XLV of 1860), S.57‑‑‑Conviction of accused in two cases‑‑‑Sentences in two cases whether to run consecutively or concurrently‑‑‑Accused was convicted in two different cases, but under same kind of offences and was sentenced for 6 years R.I. in each case‑‑‑Trial Court had not stated anything about two sentences whether would run consecutively or concurrently‑‑‑High Court could always take curative measures in view of powers bestowed to it under S.57, P.P.C., read with Ss.234, 397 & 561‑A, Cr.P.C. in such an eventuality and it would serve the interest of justice if sentences in both cases were to run concurrently‑‑‑High Court ordered accordingly.

Shah Muhammad alias Manna v. The State 1994 SCMR 582; Muhammad Ittefaq v. The State 1986 SCMR 1627; Falak Sher v. I.‑G. and others 2002 MLD 1435; Altaf Hussain v. The State 1987 PCr.LJ 2169; Zakir Ali v. The State PLD 1977 Kar. 833; Nagappa Vyankappa Sali v. Emperor AIR 1931 Bom. 529(1); Jumma Khan v. The State 1986 SCMR 1573; Khan Zaman v. The State 1987 SCMR 1382 and Hayee Khan v. The State 1992 PLC SC 14 ref.

Miss Nighat Saeed for Appellant.

Sh. Mumtaz Ali for the State.

Date of hearing; 1st December, 2004.

2005 P Cr. L J 409

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD LATIF alias MITHU and others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Cr. Misc. Nos.6519/B and 7175/B of 2004, decided on 14th December, 2004.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/148/149‑‑‑Bail, refusal of‑‑‑Accused caused fire shot injury to deceased on the back side of his right 'shoulder which injury had duly been noted in post‑mortem examination report‑‑‑Principle of consistency was not applicable to case of accused inasmuch as case of co‑accused, who had been granted bail, was entirely different as he, in three successive investigations, had been held innocent‑‑‑Mere fact that no injury had been ascribed to accused on deceased, would not advance his plea of bail as accused had also been charged under S.324, P.P.C. for causing serious injury to injured‑‑‑Apart from that, the manner in which accused was stated to have conducted himself, was prima facie sufficient to burden him with vicarious liability, which would finally be determined by trial Court‑‑‑By no stretch of imagination, case of accused could be termed as being at par with or on better footing than case of co‑accused who had been granted bail‑‑­Application of accused was accordingly dismissed.

Zulfiqar Ali v. The State 1996 MLD 1457; Manzoor Ahmad and others v. State PLJ 1999 Cr.C. Lahore 570; Muhammad Saleem v. The State 2003 MLD 145; Nisar Ahmad v. The State 2004 MLD 741; Yaroo v. The State 2004 SCMR 864 ref.

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

‑‑‑‑S. 497(2)‑‑‑Penal Code (LXV of 1860), Ss.302/324/148/149‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Accused according to F.I.R. and statements of prosecution witnesses was empty handed‑‑‑Alleged recovery of pump action gun, which was licensed weapon admittedly belonged to co-­accused, who had been granted bail, and it had been effected from premises owned by said co‑accused‑‑‑No allegation was levelled to the effect that accused caused any injury either to deceased or to any of witnesses, his culpability including vicarious liability in given facts and circumstances thus calling called for further probe within the meanings of subsection (2) of S.497, Cr.P.C.‑‑‑Accused was admitted to bail.

Rana Muhammad Safdar v. Gulzar Ali alias Papoo and another 1999 PCr.LJ 1 ref.

Zubair Afzal Rana for Petitioners (in Criminal Miscellaneous No.6519/B of 2004).

Arshad Nazir Mirza for Petitioners (in Criminal Miscellaneous No.7175/B of 2004).

Malik Muhammad Akram Awan for the Complainant.

Sohail Arshad Waraich for the State (in Criminal Miscellaneous No.6519/B of 2004).

Muhammad Ali Dogar for the State (in Criminal Miscellaneous. No.7175/B of 2004).

Sultan Ali, S.‑I: with Record.

2005 P Cr. L J 413

[Lahore]

Before Asif Saeed Khan Khosa, J

Rana MUHAMMAD AYUB‑‑-Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No.4368/B of 2004, decided on 7th July, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Immigration Ordinance (XVIII of 1979), S.17(22)‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Allegations levelled against accused in the F.I.R. as well as in statements recorded under S.161, Cr.P.C., were merely general and collective in nature‑‑‑Complainant party had failed to specify as to when accused had received any money from complainant, how much money was received by petitioner and where such money was paid to the petitioner‑‑‑No documentary evidence was available on record so as to substantiate vague and general allegations levelled against accused by complainant party‑‑‑Role allegedly played by accused during entire transaction was merely secondary in nature to that allegedly played by co‑accused who had already been admitted to post‑arrest bail on basis of a compromise between him and complainant party‑‑‑Nothing had been recovered from possession of accused during investigation of case‑‑­Investigation of case having already been finalized to the extent of accused, his physical custody was no longer required for purpose of investigation‑‑‑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.

Ch. Imran Raza Chadhar for Petitioner.

Javed Sarfraz Sheikh, Standing Counsel for the State.

Date of hearing: 7th July, 2004.

2005 P Cr. L J 424

[Lahore]

Before Ch. Iftikhar Hussain, J

NIAMAT ALI ‑‑‑Petitioner

Versus

ALI MUHAMMAD alias MANGTA and 2 others‑‑‑Respondents

Crl. Misc. No.6468/CB of 2004, decided on 15th September, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), S002/201/34/109‑‑­Application for cancellation of bail‑‑‑No one was named as an accused in F.I.R.‑‑‑Petitioner/complainant had not been able to controvert the position that he and accused had divergent pleas/versions in respect of murder of deceased‑‑‑Such fact had brought, case of accused/respondents within purview of subsection (2) of S.497, Cr.P.C. calling for further inquiry into guilt of accused‑‑‑Trial Court, in circumstances had not at all erred in exercise of its discretion in allowing accused bail‑‑­Petition for cancellation of bail being devoid of any force, was dismissed.

Muhammad Akram Gondal for Petitioner.

2005 P Cr. L J 431

[Lahore]

Before M. Bilal Khan, J

FAZAL ABBAS ‑‑‑Petitioner

Versus

MUSHTAQ and another‑‑‑Respondents

Crl. Misc. No.4844/B of 2003, decided on 4th November, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), Ss.324/337‑A(i)/337‑A(vi)‑‑­Bail, cancellation of‑‑‑According to report of Radiologist injury sustained by victim was Shajjah‑i‑Damighah attracting S.337‑A(vi), P.P.C. which was punishable with 14 years imprisonment‑‑‑F. I. R. showed that the accused had acted in a very callous and cruel manner and repeated hatched blows for three times‑‑‑Even if accused was a Juvenile, which question was yet to be determined, it was incumbent upon Trial Court to have seen the gravity of offence and the manner in which accused had conducted himself‑‑‑Trial Court had omitted to appreciate important‑ Proviso to S.10 of Juvenile Justice System Ordinance, 2000 whereby bail could be refused to minor if he was found involved in offence which was serious, heinous, gruesome, brutal, sensational in character or shocking to public morality‑‑‑Trial Court had also failed to consider the motive of accused party‑‑‑Discretion exercised by Trial Court militated against well‑established principles for grant of bail‑‑‑Order whereby accused was granted post‑arrest bail by Trial Court, was recalled.

Zafar Iqbal Chohan for Petitioner/complainant.

Chaudhry Nisar Ahmad Dhillon for Respondent No. 1.

Abdul Majeed Chishti for the State.

Date of hearing: 4th November, 2003.

2005 P Cr. L J 434

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD RAMZAN and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Crl. Misc. Nos. 1535/B and 1613/B of 2004, decided on 7th June, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/337‑A(i)/337‑F(i)/34‑‑­Bail, grant of‑‑‑Accused although had allegedly given a dagger blow to the deceased, yet he himself was seriously injured during the occurrence and he did not repeat the blow‑‑‑In the cross‑version got recorded on the direction of the Sessions Court, accused had taken the plea that the complainant party was aggressor and he had acted in self‑defence‑‑‑Many persons had been involved in the cross‑case for having caused injuries to the aforesaid accused‑‑‑Both the sides had received injuries at the hands of‑each other and they had come forward with different versions‑‑‑Guilt or innocence of each party would be determined only at the trial after recording evidence‑‑‑Accused were admitted to bail in circumstances.

1996 SCMR 1645 and 1978 SCMR 235 ref.

Sh. Muhammad Faheem for Petitioner (in Criminal Miscellaneous No. 1613/B of 2004).

Mian Arshad Latif for Petitioners (in Criminal Miscellaneous No. 1535/B of 2004).

Faheem Mumtaz and Syed Altaf Hussain for the State (in Bail Petitions).

Shaukat Hussain S.‑I. with record.

2005 P Cr. L J 437

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD ASLAM and 2 others‑‑‑Petitioners

Versus

THE STATE‑ ‑‑Respondent

Crl. Misc. No.5274/B of 2004, decided on 13th September, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.324/109/148/149‑‑‑Bail, grant of‑‑‑further inquiry‑‑‑Accused though were nominated in F.I.R. with the role that they, while armed with lethal weapons, had resorted to firing at the complainant, but no person had been injured due to same­---Such fact heavily ‑recoiled on the version of complainant and that fact alone had necessitated further inquiry into the guilt of accused‑‑‑Case against accused fell within purview of subsection (2) of S.497, Cr.P.C.‑‑‑Due to mere heinousness of offence, not necessarily always a person or group of persons could be said to be either desperate or dangerous criminals, unless it was proved that they, had record of previous involvements or convictions‑‑‑Accused who were behind the bars for the last more than five months, were previous non‑convicts‑‑­Accused were admitted to bail, in circumstances.

Muhammad Saleem v. The State PLD 1989 Lah. 233; Ghulam Murtaza v. The State 2001 PCr.LJ 1691; Illahi Bux v. The State 2003 MLD 1044 and Mehrab v. The State 2004 MLD 631 ref.

Chaudhry Muhammad Asif Ranjha for Petitioners.

Malik Muhammad Akbar Awan for the State.

Muhammad Saleem Virk for the Complainant.

Muhammad Sadiq, S.‑I. with police record.

2005 P Cr. L J 440

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD ASHIQ HUSSAIN ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No.860/B of 2003/BWP, decided on 23rd September, 2003.

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

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/460/34‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Name of accused was not mentioned in F.I.R.‑‑­Both prosecution witnesses who posed to be eye‑witnesses, at the first instance supported story as given in F.I.R., but subsequently they changed their mind‑‑‑Prosecution witnesses who were closely related to the deceased and complainant had claimed that they had over‑heard conspiracy of murder of deceased, but they did not report same either to complainant or deceased till the occurrence took place‑‑‑Alleged extra judicial confession was made by father of accused and other co‑accused rather than accused‑‑‑Father would' take his three sons to make confession which could be used against them could not be swallowed‑‑­Story of Wajtakar would hardly enhance prosecution case‑‑‑Nothing had been recovered from accused‑‑‑Accused was found to be innocent in one of the investigations conducted by DSP‑‑‑Accused was never declared absconder and his late arrest could not be used as evidence against him‑‑‑Mere heinousness of offence could not be made basis to ,reject bail‑‑‑Bail could not be withheld as a punishment‑‑‑Benefit, if any, even at bail stage was to be given to accused‑‑‑Allegation against accused needing further probe and inquiry within meaning of subsection (2) of S.497, Cr.P.C., accused was admitted to bail.

Manzoor and 4 others v. The State PLD 1972 SC 81 ref.

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

‑‑‑‑S. 497‑‑‑Grant of bail‑‑‑Deeper appreciation of evidence at bail stage‑‑‑Propriety‑‑‑Court should not indulge in deeper analysis of evidence at bail stage; but it was also true that in order to reach fair decision, the Court had to tentatively assess the evidence.

Khalid Javed Gillani v. The State PLD 1978 SC 256 ref.

Sardar Ahmad Khan for Petitioner.

Syed Jamil Anwar Shah for the Complainant.

M.A. Farazi for the State.

Date of hearing: 23rd September, 2003.

2005 P Cr. L J 444

[Lahore]

Before M. Bilal Khan, J

ASGHAR ALI ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No.844/B of 2004, decided on 25th March, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Emigration Ordinance (XVIII of 1979), Ss.17/22 ‑‑‑ Bail, grant of‑‑‑No investigation whatsoever had been held in the case for the last almost six months and the file was lying absolutely dormant‑‑‑Even basic contention of accused that it was some other named person who had issued the cheque, had not been got verified by Investigating Officer despite the fact it was a simple exercise and same could have been verified from the Bank easily‑‑‑Prosecution was not interested in investigation at all and was just buying time on one pretext or the other with a view to ensuring that accused was kept in jail as a measure of punishment‑‑‑Accused could not be retained in custody indefinitely‑‑­Accused was admitted to bail, in circumstances.

Gorsi Muhammad Din Chaudhry for Petitioner.

Ch. Tariq Javaid assisted by Ch Sohail Tariq for the Complainant.

Sh. Javaid Sarfraz for the State.

Date of hearing: 25th march, 2004.

2005 P Cr. L J 447

[Lahore]

Before Ch. Iftikhar Hussain, J

WALAYAT‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Crl. Appeal No.382 of 2002, heard on 9th October, 2003.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Trial Court had not relied on the ocular evidence, medical evidence and motive for the occurrence and had depended on the statement of the accused recorded under S.342, Cr.P.C., incriminating recoveries effected from him and his abscondence; for his conviction‑‑‑Accused in his statement did not admit that he had directly fired at the deceased as according to him he had fired in the air and Trial Court, therefore, could not use his such statement in believing his guilt in the murder of the deceased‑‑‑Evidence of recovery of crime weapon, its magazine and live bullets from the accused could not be used for his conviction in the absence of any other incriminating corroborative evidence, which even otherwise was not believable due to the recovery having been effected after eight months of the incident‑‑‑No incriminating evidence being available on record against the accused, his alleged abscondence could not be used as a corroborative circumstance against him‑‑‑Accused was acquitted in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Recovery‑‑‑Principle‑‑­Recovery of incriminating articles can only be used to corroborate the ocular evidence or any other incriminating circumstance in the evidence against him and the same alone itself cannot be used to base his conviction.

Ch. Liaqat Ali Sindhu for Appellant.

A.H. Masood for the State.

Date of hearing; 9th October, 2003.

2005 P Cr. L J 453

[Lahore]

Before Muhammad Farrukh Mahmud, J

NOOR AHMAD alias NOORI‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl.Misc. No.403/B of 2003/BWP decided on 24th April, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4‑‑‑Pre‑arrest bail, grant of‑‑‑No search warrant was obtained by complainant police officer concerned‑‑‑No one from public was associated during proceedings and no raw material was taken into possession which had rooted out the story of distilling of liquor‑‑‑Ad­interim pre‑arrest bail already granted to accused was confirmed, in circumstances.

Nadeem Iqbal Chaudhry for Petitioner.

Wajid Aftab Misson for the State.

2005 P Cr. L J 454

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD AKRAM‑‑‑Petitioner

Versus

THE STA'T'E‑‑‑Respondent

Crl. Misc. No.3733/B of 2004, decided on 29thy June, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3/4‑‑‑Bail, grant of‑‑‑Accused was in custody for the last more than six months, but trial had not commenced‑‑‑Investigating Officer had not been able to point out that accused was a previous record‑holder or involved in a case of similar nature‑‑‑Place wherefrom alleged recovery had been effected did not belong to the accused and possibility that accused had gone there as a visitor, could not be ruled out‑‑‑Offence with which accused was charged did not fall within prohibitory clause of S.497(1), Cr.P.C.‑‑‑Trial of case having not commenced, accused could not be retained in custody as a measure of punishment‑‑‑Accused was admitted to bail in circumstances.

Imran Asmat Chaudhry for Petitioner.

Walayat Umar for the State.

Date of hearing: 29th June, 2004.

2005 P Cr. L J 462

[Lahore]

Before Ch. Iftikhar Hussain, J

KASHIF‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.5687/B of 2003, decided on 22nd October, 2003.

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

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/324/148/149‑‑‑Bail, grant of‑‑‑Accused according to F.I.R. had fired with a gun at a prosecution witness hitting on the left side of his abdomen‑‑‑Three Investigating Officers had found that the accused had caused injury to none and was merely present at the spot empty‑handed ‑‑‑Ipsi dixit of the police, though not binding on the Court, was relevant for taking into consideration while deciding such question‑‑­Participation or involvement of accused in the matter required further inquiry as envisaged by S.497(2), Cr.P.C.‑‑‑Accused was a previous non‑convict‑‑‑Bail was allowed to accused in circumstances.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/148/149‑‑‑Bail, grant of‑‑‑Police opinion ‑‑‑Ipsi dixit of the police though is not binding on the Court, yet it is a relevant circumstance to be taken into consideration while deciding such‑like question.

Rana Muhammad Arshad Khan for the Petitioner.

Mian Saeed‑ud‑Din Ahmad for the State.

Muhammad Riaz, A.S.‑I with police record.

2005 P Cr. L J 516

[Lahore]

Before M. Bilal Khan, J

ASHIQ ALI ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No. 6934/B of 2003 decided on 11th February, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Delay of more than five months in lodging F.I.R. had not satisfactorily been explained‑‑‑Alleged abductee in her statement made under S.161, Cr.P.C. had not levelled any allegation of Zina or abduction against accused and she had simply stated that she was administered some intoxicant whereafter she became unconscious‑‑‑Case of accused appeared to be on a better footing than that of his co‑accused who had since been extended concession of bail‑‑‑In view of said peculiar facts and circumstances, case of accused appeared to be one of further inquiry within the meanings of subsection (2) of S.497, Cr.P.C.‑‑‑Accused was admitted to bail, in circumstances.

Ch. Abdus Saleem for Petitioner.

Qazi Zafar Iqbal for the State.

2005 P Cr. L J 531

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD KAZIM‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Crl. Misc. No.4135/B of 2004, decided on 1st July, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.392/395/411/458‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Accused was not named in F. I. R. and he had not been put to any identification test‑‑‑Question of involvement of accused in the case needing serious consideration, case was covered under subsection (2) of S.497, Cr.P.C. calling for further inquiry into the guilt of accused‑‑‑Disk in question was recovered from the accused after more than one and half months of alleged occurrence‑‑‑Case against accused attracted offence under S.411, P.P.C. which was not .covered under prohibitory clause of S.497(1), Cr.P.C.‑‑‑Accused was stated to be previous non‑convict‑‑‑Accused was granted bail, in circumstances.

Mushtaq Ahmad Mohal for Petitioner.

Tabassum Ansar for the State.

Date of hearing: 1st July, 2004.

2005 P Cr. L J 541

[Lahore]

Before M. Bilal Khan, J

FAIZ AHMAD and another‑‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Cr. Misc. No.5607/B of 2004, decided on 13th September, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑Penal Code (XLV of 1860), Ss.302/427/148/149‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Both accused had been declared innocent in initial investigation of police‑-‑According to Doctor who conducted post mortem examination, deceased had received only one fire shot injury‑‑­General allegation that accused persons had fired with their respective firearms causing more injuries to deceased, did not prima facie find support from material available on record‑‑‑State Counsel had conceded that case of accused pre‑eminently was one of further inquiry‑‑‑Vicarious liability of accused was to be determined at the time of trial‑‑‑In peculiar facts and circumstances of case culpability of accused merited further probe within meaning of subsection (2) of S.497, Cr.P.C.‑‑‑Accused were admitted to bail, in circumstances.

Ch. Farooq Haider for Petitioners.

Ms. Fauzia Sultana for the State.

Muhammad Yousaf S.‑I. P.S. Kunjah, District Gujrat.

2005 P Cr. L J 553

[Lahore]

Before Ali Nawaz Chowhan, J

SOHAIL ASHRAF FAROOQ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Crl. M. No. 3019/13 of 2003, decided on 20th June, 2003.

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

‑‑‑‑Ss. 498 & 550‑‑‑Penal Code (XLV of 1860), Ss.411/420/468/471‑‑­Pre‑arrest bail, grant of‑‑‑Handing over of seized vehicle on Supurdari‑‑­Application filed by applicant basically was bail application, applicant therein also had raised the plea that as his car was in wrongful custody of police, same should be returned to him‑‑‑Applicant though had not made a specific prayer for grant of car on Supurdari, but he did make a prayer that he could be granted any relief to which he could be entitled in law‑‑‑Entire case having been discussed before High Court, applicant wished to make prayer that car in question be given to applicant on Supurdari there being no other contestant‑‑‑Accepting verbal prayer of applicant covered by his request already made in general terms in his application, High Court directed, Investigating Officer to hand over car on Supurdari to applicant‑‑‑Applicant being no longer required by police and he had claimed to be a bona fide purchaser, High Court confirmed his bail‑‑‑Applicant would continue joining investigation whenever required by police

Ch. Muhammad Abdul Saleem for Petitioner.

Qazi Zafar Iqbal for the State.

2005 P Cr. L J 557

[Lahore]

Before M. Bilal Khan, J

JAGDAY‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Crl. Misc. No.4839/B of 2004, decided on 15th September, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/148/149‑‑‑Bail, grant of‑‑‑More than 26 months had elapsed since arrest of accused, but no worthwhile progress had been made in trial‑‑‑According to report of Trial Court, prosecution alone was responsible for said inordinate delay which had taken place in disposal of Trial and accused had contributed nothing towards delay of trial‑‑‑Statutory provisions recognizing right of accused to claim bail on account of delay though had been repealed, but repeal of said provisions would not give a carte blanche to prosecution to prolong the trial at its whims adding to the agonies of under‑trial prisoners and their dependants‑‑‑No progress had been made in trial due to dilatory tactics adopted by prosecution despite direction of High Court for early trial and assurance extended by Trial Court‑‑‑Accused, who was in captivity for the last more than 26 months, could not be retained as such as a measure of punishment‑‑‑Accused was admitted to bail, in circumstances.

Ghulam Sabir for ‑Petitioner.

Malik Muhammad Awais Khalid for the State

Zulfiqar Ali, A.S.-I., P.S. Khurrianwala District Faisalabad with police file.

2005 P Cr. L J 568

[Lahore]

Before Ali Nawaz Chowhan and Rustam Ali Malik, JJ

ALLAH DITTA‑‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Crl. Misc. No.4723/B of 2003, decided on 19th January, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss.9, 21 & 25‑‑‑Bail, grant of‑‑‑Contention was that accused who was found in possession of two Kgs. of poppy‑straws at the time of his arrest, was unaware of the fact whether poppy‑straws would fall under definition of "narcotic substances" because same indigenously were available and were used by quacks for, medical purpose‑‑‑No mens rea was attached, in circumstances‑‑‑Even raid was illegal because it was conducted by an A.S.‑I. which was forbidden by S.21 of Control of Narcotic Substances Act, 1997‑‑‑Accused was in lock‑up since July, 2003 and trial was not in sight‑‑‑Accused was allowed bail, in circumstances.

Aftab Ahmad Bajwa for Petitioner.

Malik Shahid Mahmood. for the State.

Date of hearing: 19th January, 2004.

2005 P Cr. L J 570

[Lahore]

Before M. Bilal Khan, J

RAJADA ‑‑‑‑ Petitioner

versus

THE STATE‑‑‑Respondent

Crl. Misc. No.1195/B of 2004, decided on 21st July, 2004.

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

‑‑‑‑Ss. 87, 88 & 497‑‑‑Proclamation for person absconding‑‑‑Bail, grant of‑‑‑For purpose of bail, accused, who, had absconded, could be considered to be a proclaimed offender without technical satisfaction of requirements of Ss.87/88, Cr.P.C.‑‑‑Contention that unless formal proceedings were taken under Ss.87/88 of Cr.P.C., accused could not be treated as a proclaimed offender, was repelled‑‑‑Mere abscondence of co‑accused, however, would not deter Court from extending concession of bail if otherwise, he was found entitled to same.

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

‑‑‑‑S. 497‑‑‑Bail, grant of‑‑‑Abscondence‑‑‑Effect‑‑‑ Mere abscondence of co‑accused would not deter Court from extending concession of bail if otherwise, he was found entitled to same.

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

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.337‑A(i), 337‑A(iii), 337‑F(i), 337‑F(v), 337‑H(ii), 337‑L(2) & 452/148/149‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Accused had been arrested about ten months back, but despite that no tangible progress had been made in trial of accused‑‑­Accused was an elderly man of about 70 years and offence with which he was charged did not attract prohibitory clause of S.497(1), Cr.P.C.‑‑‑No specific allegation of any‑ particular injury having been attributed to accused, his culpability and vicarious liability needed further probe within the meaning of subsection (2) of S.497, Cr.P.C.‑‑‑Accused could not be retained in custody with a view to pressurize him to produce absconding co‑accused‑‑‑Accused was admitted to bail, in circumstances.

Muhammad Anwar Bhaur for Petitioner.

Miss Raisa Sarwat for the State.

Muhammad Ishaq, S.‑I. with record.

2005 P Cr. L J 574

[Lahore]

Before Ali Nawaz Chowhan and Rustam Ali Malik, JJ

MUHAMMAD RIAZ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Crl. Misc. No.7682/B of 2003, decided on 12th January, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss.6/9‑‑‑Bail, grant of‑‑‑Allegation against accused was that he was found in possession of 200 grams of indigenous charas ‑‑‑ Maximum sentence in case would not fall under prohibitory clause and his case would come under S.9(b) of Control of Narcotic Substances Act, 1997‑‑­Accused was in lock‑up since his arrest and trial had yet to commence‑‑­Accused was admitted to bail, in circumstances.

N.A. Butt for Petitioner.

Syed Nadeem Anjum for the State.

2005 P Cr. L J 577

[Lahore]

Before Muhammad Akram Baitu, J

GHULAM HUSSAIN---Petitioner

versus

THE STATE---Respondent

Crl. Misc. No.1788/B of 2003, decided on 18th September, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324/452---Bail, grant of---Further inquiry---More than ten day’s delay occurred in lodging F.I.R. for which no plausible explanation was forthcoming on the record---No overt act had been attributed to accused nor any injury had been ascribed to him---Alleged commanding Lalkara attributed to accused at the time of commission of alleged crime, could not be determined at bail stage, but would be seen at the time of trial---Accused was at the age of octogenerarian---Case of accused was covered under proviso to S.497, Cr.P.C.---Part of accused taken in crime as alleged in F.I.R. was that he aimed with his weapon at the relevant time which weapon was snatched---Case of accused needed further inquiry into his guilt and same fell under S.497(2), Cr.P.C.---Further detention of accused in judicial lock-up would not serve any useful purpose---Accused, in circumstances was entitled for concession of bail.

Abdul Aziz Khan Niazi for Petitioner.

Ch. Pervaiz Aftab for the Complainant.

Muhammad Anwar-ul-Haq for the State.

Date of hearing: 18th September, 2003.

2005 P Cr. L J 582

[Lahore]

Before M. Bilal Khan, J

KHURSHEED ALAM and another---Petitioners

versus

THE STATE---Respondent

Crl. Misc. Nos.4205/B and 4317/B of 2004 of decided on 20th July, 2004.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/148/149---Bail, grant of---Further inquiry---Police had opined that accused was not armed at the time of occurrence and such opinion appeared to be quite well reasoned---On basis of said opinion case of accused had become one of further inquiry within the meaning of S.497(2), Cr.P.C.---Enmity existed between parties and dispute about distribution of agricultural land was admitted by complainant herself---Challan though had been submitted and charge had been framed, but not even single witness had been examined---Complainant had also filed a private complain in which accused persons were likely to be summoned---Conclusion of trial, in circumstances would take some time---In medical report sent by Senior Medical Officer of District Jail, it had been stated that accused was an old case of Ischaemic Heart Disease and was taking medicines for said disease continuously---According to the Doctor continuous tension and stress due to detention could prove fatal for accused---Accused being a sick and infirm person of more than sixty years of age, would be entitled to concession of bail as envisaged by 1st Proviso to S.497, Cr.P.C.---No overt act had been attributed to co-accused and only allegation against him was that he was present at the scene while armed with an iron rod which he did not use---Co-accused was only an employee of accused and his vicarious liability would be determined at the time of trial---If the Court would come to the conclusion that accused otherwise were entitled to bail, the fact that trial had commenced and evidence was being recorded would not stand in the way of grant of bail to accused---Accused were admitted to bail, in circumstances.

Zakhim Khan Masood v. The State 1998 SCMR 1065; Mumtaz Hussain and 5 others v. The State 1996 SCMR 1125; Attaullah and 3 others v. The State 1999 SCMR 1320 and Faraz Akram v. The State 1999 SCMR 1360 ref.

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

----Ss. 302/324/148/149---Appreciation of evidence---Opinion of Investigating Officer or police---Binding effect on the Court---Opinion of Investigating Officer or police though was not binding on the Court, but said opinion being adverse to prosecution would create doubt about the veracity of prosecution case especially so if said opinion had been recorded as a result of investigation which could not be labelled as arbitrary or fanciful.

Muhammad Afzal v. Nazir Ahmad and others 1984 SCMR 429; Ameer Ali and another v. The State 1984 SCMR 521 and Zulfiqar Ali v. The State 1996 MLD 1457 ref.

Ijaz Ahmad Chadhar for Petitioner.

Fayyaz Ahmad Meer for Petitioner No.2.

Syed Mujahid Hussain Gilani for the Complainant.

S.A. Irshad for the State.

Ghulam Askari, S.-I. P.S. Saddar Toba Tek Singh.

2005 P Cr. L J 588

[Lahore]

Before Zafar Pasha Chaudhary, J

Haji GHULAM RASUL---Petitioner

versus

MUHAMMAD ABBAS and another---Respondents

Crl. Misc. No. 3170-CB of 2000, decided on 24th April, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.420/406/506---Bail, cancellation of---Investigating Officer was summoned in order to ascertain whether accused had criminal history to his discredit or not---Investigating Officer had stated that two similar applications moved by two different persons against accused wherein similar allegations of fraud and cheating had been made---Regular cases though had not been registered, but it was indicative of the fact that accused was not a clean person---Magistrate proceeded to admit accused to bail on ground that S.406, P.P.C. was not applicable though from order of Additional Sessions Judge it was clear that accused stood involved in the case, meaning thereby that S.406, P.P.C. was applicable---Magistrate by admitting accused to bail just after few days after rejection of his bail, had not only acted illegally, but also it was suggestive of something else as well---Bail granting order neither being lawful nor justifiable, was withdrawn---Bail allowed to accused was cancelled, in circumstances.

Masood Sadiq Mirza for Petitioner.

Mian Abdul Qayyum Anjum for the State.

Syed Ghulam Nabi Shah for Respondent No.1

Date of hearing: 24th April, 2001.

2005 P Cr. L J 591

[Lahore]

Before Sh. Abdur Rashid, J

MUHAMMAD RIAZ and others---Petitioners

versus

THE STATE---Respondent

Crl. Misc. Nos.7840-B and 8756-B of 2004, decided on 9th December, 2004.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.295-B---Pre-arrest bail, grant of---Allegation against accused was that they were found recycling and reprocessing old copies of Holly Qur’an to turn the same into paper and board in their factory which amounted to desecration and by so doing prima facie had committed offence which fell within the ambit of S.295-B, P.P.C.---Question as to whether alleged recycling and reprocessing of old copies of Holy Qur’an would institute its desecration or profanation, had been given by Council of Islamic Ideology in its opinion to the Government and in view of Council of Islamic Ideology, prima facie, it could not be held that accused by recycling and reprocessing old copies of Holy Book (Qur’an) intended to defile or desecrate the copies of Holy Qur’an---Case of accused, in circumstances was a matter of further inquiry---Interim bail already allowed to accused, was confirmed, in circumstances.

Naveed Rasool Mirza for Petitioner.

Shahzib Saeed for Nazir Hussain eye-witness.

M. Bilal Nazami for the State.

Syed Ghulam Nabi Shah for the State (in Criminal Miscellaneous No.8756/B of 2004).

Muhammad Mansha, S.-I. P.S. Phoolnagar.

2005 P Cr. L J 596

[Lahore]

Before Nazir Ahmad Siddiqui, J

MUHAMMAD AKRAM---Petitioner

versus

THE STATE---Respondent

Crl. Misc. No. 1025-B of 2003/BWP, decided on 15th October, 2003

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/337-A(iii)/337-L(ii)/ 452/148/149---Bail, grant of---Accused had not been attributed any injury to deceased and even no overt act towards causing of death of deceased was alleged against him---No evidence was produced to establish that accused shared any common intention with other co-accused---Injury attributed to accused on complainant fell either in S.337-A(i) or 337-A(ii), P.P.C. to which prohibitory clause of S.497, Cr.P.C. was not attracted and said injury had been declared as Shajjah-i-Khafifah---Accused was behind the bars for the last almost six months and no progress was in the trial---No motive had been attributed to accused for participating in alleged occurrence or injuring complainant---Accused was admitted to bail, in circumstances.

Sadiq Mahmud Khurram for Petitioner.

Mirza Nadeem Asif for the State.

Date of hearing: 15th October, 2003.

2005 P Cr. L J 597

[Lahore]

Before Muhammad Farrukh Mahmud, J

GHULAM AZAM---Petitioner

versus

THE STATE---Respondent

Cr. Misc. No.444-B of 2004/BWP decided on 1st July, 2004.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.324/334---Release of convict from jail---Accused was in prison on account of non-payment of Arsh and had already served out his substantive sentence---Keeping accused behind the bars would not benefit the victim---Accused was released---Accused would pay amount of Arsh in lump sum or in instalments within a period of three years. [p. 599] A

Ch. Abdul Ghaffar Butoa for Petitioner.

Ahmad Mansoor Chishti A.A.-G. assisted by Wajid Aftab Misson for the State.

2005 P Cr. L J 599

[Lahore]

Before Sh. Hakim Ali, J

NASEEM TAHIRA---Petitioner

versus

THE STATE---Respondent

Crl. Misc: No.2758 of 2004, decided on 28th September, 2004.

Criminal Procedure Code (V of 1898)---

----S. 498---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16---Pre-arrest bail, grant of---F.I.R. had been filed with an un-explained delay of 27 days---Prima facie, it seemed to be a case of pressurizing the woman to return to the house of the informant, who, due to strained relations, had obtained dissolution decree against the informant---Filing of suit for dissolution of marriage, six days prior to lodging of F.I.R., had supported that view---Accused being a woman was also entitled to grant of bail, especially when it had been admitted that she was a retired teacher having the age of more than 55 years---Co-accused having been granted bail, rule of consistency also required that accused should also be dealt with same treatment---Great difference of age was found between the alleged co-accused and accused who were stated to be of twenty and sixty years of age respectively---Ad interim pre-arrest bail earlier granted to accused was confirmed, in circumstances.

Mehar Muhammad Saleem Akhtar for Petitioner.

Mahmoodul Hassan Qureshi with Fayyaz, S.-I. for the State.

Sheikh Abdul Rasheed for Complainant.

2005 P Cr. L J 602

[Lahore]

Before Muhammad Farrukh Mahmud, J

NAZIM HUSSAIN and others---Petitioners

versus

THE STATE---Respondent

Cr. M. No. 1483-B-2003/BWP decided on 12th January, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4---Bail, grant of---Complainant had violated provisions of S.103, Cr.P.C. with impunity by not associating any respectable person from the locality during raid---Offence in question did not attract prohibitory clause of S.497, Cr.P.C.---No record was available against accused to the effect that they were previously involved in any criminal case---Accused, were admitted to bail, in circumstances.

Muhammad Aslam for Petitioners.

Irfan Majeed Rehmani for State.

2005 P Cr. L J 603

[Lahore]

Before M.A. Shahid Siddiqui and Nasim Sabir Ch., JJ

MUHAMMAD IJAZ---Petitioner

versus

THE STATE---Respondent

Crl. Misc. No. 1940-B of 2004, decided on 26th July, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 15---Bail, grant of---House from where narcotics were allegedly recovered did not belong to accused, but belonged to co-accused---Nothing was recovered at the instance of accused---Prosecution had yet to prove at the trial that accused was the agent of co-accused---Accused was admitted to bail, in circumstances.

Khan Dil Muhammad Khan Alizai for Petitioner.

Muhammad Mumtaz Malik for A.N.F., Multan.

2005 P Cr. L J 604

[Lahore]

Before Muhammad Farrukh Mahmud, J

Mst. KHALIDA PERVEEN and others---Petitioners

versus

THE STATE---Respondent

Cr.M.No.945-B of 2003 decided on 22nd September, 2004.

Criminal Procedure Code (V of 1898)---

----S. 498---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10(2)/16---Pre-arrest bail, grant and confirmation of---Accused had claimed that they were husband and wife and in that regard Nikahnama was registered---Female accused had denied that she was ever married to the person other than her co-accused and she had alleged that Nikahnama showing her marriage with said other person was fake and bogus---Accused had joined investigation and their statement had been recorded---Matter was reported to police after a delay of one month---Accused having surrendered themselves before Superior Court, they could not be termed as absconders---Statement of said other person with whom Nikah of female accused had been alleged in F.I.R., had not been recorded by Investigating Officer---Ad interim pre-arrest bail already granted to accused, was confirmed, in circumstances.

Hakeem Mumtaz’s case PLD 2002 SC 590 ref.

Ch. M. Ashraf Mohandra for Petitioners.

M.A. Farazi with Anwar, A.S.-I. for the State.

Syed Asad Ali for Complainant.

2005 P Cr. L J 607

[Lahore]

Before Syed Shabbar Raza Rizvi, J

Syed SAKHAWAT HUSSAIN SHAH---Petitioner

versus

S.H.O. POLICE STATION KALLAR SYEDAN RAWALPINDI---Respondent

Writ Petition No.96 of 2005, decided on 13th January, 2005.

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

----Ss. 22-A & 22-B---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Contentions of the petitioner were that his application disclosed commission of a cognizable offence, therefore, Station House Officer of the Police Station was bound to register a case under the relevant provision of law and that his application filed under S.22-A, Cr.P.C. should have been accepted by the Additional Sessions Judge instead of dismissing the same---Additional Sessions Judge had observed in his order that there was a land dispute of graveyard between the parties, hence no cognizable offence was made out and referred to the report submitted by the S.H.O. who had inquired the matter on direction of the Additional Sessions Judge---Validity---Held---Order of the Additional Sessions Judge was well reasoned and should have been given due respect and consideration---Sessions Judges/Additional Sessions Judges exercise the jurisdiction on behalf of High Court, therefore, there was no point firstly that the applications should be entertained by the Sessions Judge/Additional Sessions Judge under Ss.22-A, 22-B, Cr.P.C. and then by the High Court under Art.199 of the Constitution on the same subject and by this way the purpose of empowering Sessions Judge was being stultified and baulked at---Sessions Judges/Additional Sessions Judges had been conferred powers under Ss. 22-A & 22-B, Cr.P.C. to lessen the burden of High Court but apparently it seemed that it had increased---Adequate remedy being available in form of complaint in the present case, finding of Additional Sessions Judge in the controversy/subject-matter of Constitutional petition could not be brushed aside---Constitutional petition was dismissed in circumstances.

1993 SCMR 550; PLD 1995 Lah. 417; 2001 SCMR 1556; 2002 MLD 280; PLD 2002 Lah. 78; 2004 PCr.LJ 1214; Fida Hussain v. The State 1975 SCMR 150; Altaf Hussain v. Government of Sindh PLD 1997 Kar. 600 and Malik Khalid Mehmood v. Inspector-General of Police 2002 PCr.LJ 1613 ref.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Relief under Art. 199 of the Constitution is discretionary---High Court has to be satisfied for issuance of an appropriate writ, which cannot be issued in every case as a matter of policy or routine---Every case has to be adjudged on its own merits and facts.

Fida Hussain v. The State 1975 SCMR 150; Altaf Hussain v. Government of Sindh PLD 1997 Kar. 600 and Malik Khalid Mehmood v. Inspector-General of Police 2002 PCr.LJ 1613 ref.

Sardar Abdul Raziq Khan for Petitioner.

2005 P Cr. L J 627

[Lahore]

Before Sheikh Abdur Rashid and M. Bilal Khan, JJ

MIAN KHAN---Petitioner

versus

GOVERNMENT OF THE PUNJAB throughSecretary Home Department, Civil Secretariat, Lahore and others---Respondents

Writ Petition No.8863 of 2002, decided on 10th February, 2004.

Penal Code (XLV of 1860)---

----Ss. 302, 307, 65, 69, 148 & 149---Pakistan Prison Rules, 1978, R.44---Conversion of death sentence into life imprisonment---Limit of imprisonment for non-payment of fine---Termination of imprisonment on payment of proportional part of fine---Sentence of death penalty awarded to accused by Trial Court under S. 302, P.P.C. on four counts was converted into life imprisonment, which was to run concurrently with all benefits of S. 382-B, P.P.C.---Sentence awarded to accused under S.307, P.P.C. for 10 years on each count was also to run concurrently along with life imprisonment---If worked out on consecutive basis, sentence of accused in lieu of default in payment of fine on all counts would come to 28 years and if accused was made to suffer said 28 years of sentence then it would be violative of S. 65, P.P.C. which had stipulated that term of imprisonment in default in payment of fine would not exceed 1/4th of term of imprisonment which was the maximum fixed for the offences, if the offence be punished with imprisonment as well as fine---Accused, in the present case, had been awarded the maximum sentence of life imprisonment---Sentence in lieu of default in payment of fine could not exceed its 1/4th---Sentence of imprisonment awarded to accused in lieu of default in payment of fine on each count would also run concurrently so as not to exceed 1/4th of the term of imprisonment substantially awarded to him---Sentence of imprisonment awarded to accused in lieu of default in the payment of fine on all counts, after he had served out his substantial sentence of imprisonment, would run concurrently---If accused, before expiration of the term of imprisonment fixed in default of payment, offered to pay proportionate amount of fine for the un-expired period of sentence, then respondent Authorities would, in compliance with S. 69, P.P.C. and R. 44 of Pakistan Prison Rules, make requisite calculations of fine and upon its payment, would release accused from jail in case if he was not required in any other case.

Malik Khizar Hayat Khan for Petitioner.

Ch. Jamshed Hussain, A.A.-G. for Respondent.

Date of hearing: 10th February, 2004.

2005 P Cr. L J 632

[Lahore]

Before Syed Shabbar Raza Rizvi, J

EX PA 33756 Lieut MUHAMMAD ASJID IQBAL----Petitioner

versus

FEDERAL GOVERNMENT SECRETARY-GENERAL MINISTRY OF DEFENCE, RAWALPINDI through Chief of the Army Staff, General Headquarters, Rawalpindi---Respondent

Writ Petition No.2914 of 2003, heard on 11th January, 2005.

(a) Pakistan Army Act (XXXIX of 1952)---

----S. 84---Constitution of Pakistan (1973), Art.199(3)---Constitutional petition---Maintainability---Field General Court Martial---Petitioner, in the present case, was serving as officer of the Pakistan Army when the alleged offences were committed by him, therefore, he was fully amenable to the Pakistan Army Act, 1952---Record did not show that the required procedure was not followed in his trial---Article 199(3) of the Constitution was attracted to the case of the petitioner and thus jurisdiction of High Court was barred with regard to the conviction recorded and sentences awarded by the Field General Court Martial.

Federal Government, Ministry of Defence v. Sepoy Liaqat Ali 2004 SCMR 1676 fol.

Brig. F.B. Ali’s case PLD 1975 SC 506; Saboor Rehman v. Government of Sindh PLD 1996 SC 801; Shaheda Zaheer Abbasi’s case PLD 1996 SC 632; Federation of Pakistan v. Khurshid Ahmad 1999 SCMR 664 and Capt. Syed Jamil Ali Shah v. Federation of Pakistan 2004 PCr.LJ 560 distinguished.

(b) Pakistan Army Act (XXXIX of 1952)---

----S. 82---Constitution of Pakistan (1973), Art. 199(5)---Constitutional jurisdiction of High Court---Scope---Field General Court Martial---Article 199(5) of the Constitution excludes from the definition of “person” (against whom the Constitutional/writ jurisdiction can be exercised) the Supreme Court, a High Court and a Court established under the law relating to the Armed Forces---Petitioner, who was convicted by a Court i.e. Field General Court Martial established under Pakistan Army Act, 1952 thus was not covered by the expression “person” in view of Art. 199(5) of the Constitution, hence jurisdiction of High Court was barred.

Col. Muhammad Akram for Petitioner.

Ch. Muhammad Tariq, Dy.A.-G. along with Lt. Col. Iqbal Hashmi, AJAG for the State.

Date of hearing: 11th January, 2005.

2005 P Cr. L J 638

[Lahore]

Before Abdul Shakoor Paracha, J

ABDUL QUDDUS CHISHTI----Petitioner

versus

THE STATE---Respondent

Criminal Revisions No.236 of 2004 and 4 of 2005, decided on 3rd February, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 540 & 439---Summoning any person as a Court witness or examining any person though not summoned as a witness---Accused/applicant filed application under S. 540, Cr.P.C. for summoning Assistant Sub-Inspector of Police as Court witness, who was given up by the prosecution---Other application was filed by applicant for summoning of a Crime Reporter of newspaper and A.S.P. City Circle---Application filed for summoning A.S.-I. was accepted by Trial Court, but second application for summoning Crime Reporter of the newspaper and A.S.P. City Circle was rejected---Applicant/accused who was involved in a murder case had filed revision against order of Trial Court---News item appeared with reference to disclosure made by A.S.P. City Circle to Crime Reporter of the daily newspaper that applicant/accused was arrested for murder of deceased and weapon of offence was recovered from him---Police Inspector sought to be summoned by applicant was cited as witness by prosecution in report under S.173, Cr.P.C., but he was not examined by prosecution---Validity---Prejudice was caused to applicant/accused for not examining the said A.S.-I.---Application of accused was rightly accepted by Trial Court in that respect---Regarding summoning of Crime Reporter of daily newspaper and A.S.P., their plea would also come on record and keeping in view stand of accused and prosecution side by side, the Court would be able to resolve controversy in accordance with law---Revision filed by accused assailing order of Trial Court through which his application filed under S.540, Cr.P.C. for summoning A.S.P. City Circle and Crime Reporter concerned as Court witness, had been dismissed, was allowed and order of Trial Court to that extent was set aside by High Court in revision---Trial Court having passed a valid order regarding summoning A.S.-I. as Court witness under S. 540, Cr.P.C., revision filed by complainant against said order of Trial Court was dismissed.

Mehrzad Khan v. The State PLD 1991 SC 430; Muhammad Ayub v. The State 1987 PCr.LJ 779; Ghulam Abbas v. M. Sadiq and others 2004 MLD 1900; Wajid Hussain v. The State 1998 MLD 257; Shabbir Ahmad v. Khalid Mehmood and others 1992 PCr.LJ 2392; Muhammad Ashraf Khan Tareen v. The State 1995 PCr.LJ 313 and The State v. Muhammad Yaqoob and others 2001 SCMR 308 ref.

Sabah Mohy-ud-Din for Petitioner (in Criminal Revision No.236 of 2004) and for Respondent (in Criminal Revision No.4 of 2005).

Malik Muhammad Rafiq Khan for Respondent (in Criminal Revision No.236 of 2004 and for Petitioner (in Criminal Revision No.4 of 2005).

Raja M. Shafaat for the State.

2005 P Cr. L J 644

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD SALEEM and another---Appellants

versus

THE STATE---Respondent

Criminal Appeals Nos.619 and 239 of 2004, decided on 26th November, 2004.

Penal Code (XLV of 1860)---

----S. 392---Anti-Terrorism Act (XXVII of 1997), S. 7(h)---Surrender of Illicit Arms Act (XXI of 1991), S. 7---Appreciation of evidence---Out of four prosecution witnesses, two were the victims of offence who were robbed by accused; their statements were the best evidence to connect accused with alleged commission of offence---Said prosecution witnesses had fully corroborated statements of each other and their testimony could not be shaken, despite lengthy cross-examination and they remained trustworthy so far as material particulars of the case were concerned---Looted money from both accused persons was also recovered which had fully connected them with the commission of offence---All eye-witnesses, including Police Officers, were independent, natural, disinterested witnesses having no background of enmity against accused persons---Not even a single suggestion was put to said eye-witnesses as to why they were so deposing against accused---Question of false implication or substitution was repelled, in circumstances---Factors i.e. apprehension of one accused at the spot who was caught red-handed; recovery of looted money, motorcycle and recovery of pistol .30 bore from his possession coupled with recovery of looted money from other accused would lead to an irresistible conclusion that case was fully proved against accused persons and that Trial Court had rightly convicted them for the offence committed by them---Minor discrepancies in the statement of witnesses were natural ones---Court had to see intrinsic value of the statements of witnesses---Approach of the Court should be dynamic one notwithstanding any inefficiency or negligence on the part of Investigating Agency and if the Court was satisfied that statements made by eye-witnesses were natural, unbiased, and disinterested then minor technicalities and discrepancies could be ignored---Name of accused was mentioned in F.I.R. and he was identified by eye-witness in Trial Court---Holding of identification parade was not needed in circumstances---Accused was arrested three months after occurrence and he was also declared proclaimed offender which was also a corroborative piece of evidence against accused---Prosecution had proved its case against both accused persons beyond an iota of doubt to sustain their conviction---Conviction and sentences awarded to accused by Trial Court could not be interfered with by High Court, in circumstances.

Allah Bakhsh v. Shammi PLD 1980 SC 225; State through Advocate-General, Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1; Muhammad Afzal and another v. The State 1982 SCMR 129 and Muhammad Yusuf Zai v. The State PLD 1988 Kar. 539 ref.

Syed Baqir Ali Naqvi for Appellant (in Criminal Appeal No.619 of 2004).

Rana Habibur Rehman Khan for Appellant (in Criminal Appeal No.239 of 2004).

Syed Ameer Ali for the Complainant.

Liaqat Ali Siyal for the State.

Date of hearing: 26th November, 2004.

2005 P Cr. L J 654

[Lahore]

Before M. Bilal Khan, J

Mian SAGHIR AHMAD and another---Petitioners

versus

THE STATE---Respondent

Crl. Misc. No.9500-B of 2004, decided on 7th February, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.302/34---Pre-arrest bail, refusal of---Validity---Earlier pre-arrest bail was declined to accused on merits and not simply on account of lack of mala fides---All the contentions which had been raised by accused in the bail application, had also been urged by him in earlier application---If pre-arrest bail was declined on merits and not simply on account of mala fides, then post-arrest bail, could also be refused---Even otherwise both accused had been held guilty by Investigating Officers and recoveries of weapons of offence were also effected from them---Bail application of accused was dismissed, in circumstances.

Yaroo v. The State 2004 SCMR 864; Ghulam Qadir v. The State 2004 YLR 1548; Hozaifa and others v. The State 2002 YLR 1196; Sabir Ali v. The State 2004 PCr.LJ 556 and Muhammad Nawaz v. The State 1990 ALD 650 ref.

Nazir Ahmad Ghazi for Petitioner.

Rasheed Ahmad Qaisrani for the Complainant.

Malik Manzoor Ahmed for the State.

Ali Asghar S.-I. P.S. Saddar Faisalabad with police file.

2005 P Cr. L J 658

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD RIAZ and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.956 of 1998, heard on 31st January, 2005.

Penal Code (XLV of 1860)---

----S. 302/34---Appreciation of evidence---Fatal shot was attributed to the absconding co-accused and motive also lay with him---Accused were empty-handed at the time of occurrence and were assigned only the role of raising Lalkara---Nothing was recovered from the accused---Father of the deceased in an application addressed to the S.H.O. concerned had stated that he did not want to get a criminal case registered against anyone for the murder of his son---Case against accused was doubtful in circumstances and they were acquitted accordingly.

Raja Nadeem Haider for Appellants.

Ch. Muhammad Nazir for the State.

Date of hearing: 31st January, 2005.

2005 P Cr. L J 660

[Lahore]

Before Bashir A. Mujahid, J

BABAR MASIH---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.3495/B of 2004, decided on 2nd July, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 392---Bail, grant of---Further inquiry---Complainant himself was not the eye-witness of occurrence---Accused was to be identified by servant of complainant who was eye-witness of occurrence, but accused was not identified by servant of complainant which had made case of accused of further inquiry---Accused was admitted to bail, in circumstances.

Muhammad Aurang Zeb Mir for Petitioner.

Tayeba Zamir Qureshi for the State.

Date of hearing: 2nd July, 2004.

2005 P Cr. L J 661

[Lahore]

Before Ch. Iftikhar Hussain, J

MUSTAQEEM---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.329/B of 2005, decided on 2nd February, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/149/148---Bail, grant of---Earlier bail application of accused was dismissed by High Court having not been pressed and the same was never decided on merits---Factum of not pressing his earlier bail application by the accused did not create a bar for considering his request for bail on merits---Ineffective firing only was attributed to accused and his vicarious liability was to be determined at the trial---Case of accused, thus, was covered by S.497(2), Cr.P.C. requiring further inquiry into his guilt---Accused was a previous non-convict and was behind the bars for the last seven months---Accused was admitted to bail in circumstances.

Ali Hassan v. The State 2001 SCMR 1047 ref.

Ch. Muhammad Ashraf for Petitioner.

Zia Ullah Ghuman for the State.

Masud Ahmad Zafar for the Complainant.

Bashir Ahmad, A.S.-I. with police record.

2005 P Cr. L J 667

[Lahore]

Before Khawaja Muhammad Sharif and Tanvir Bashir Ansari, JJ

MUHAMMAD HANIF and others---Appellants

versus

THE STATE and others---Respondents

Criminal Appeals Nos.1092, 1089, Criminal Revisions Nos.492, 529 and Murder Reference No.479 of 2000, heard on 19th January, 2005.

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

----Ss. 302(b), 324, 337-A & 337-D---Appreciation of evidence---Accused were named in the F.I.R. attributing them their respective roles in the occurrence---Ocular testimony was corroborated by medical evidence---Father of the deceased having been injured in the incident was a natural eye-witness who had fully implicated all the three accused in the crime and his evidence inspired confidence---Testimony of the said eye-witness who had no enmity or ill-will to falsely implicate the accused in the case, could not be discarded simply due to his close relationship with the deceased---Parties being known to each other and the accused having been named in the F.I.R. with their specific roles, no question regarding their identification could arise, particularly when the torch which was the source of light had been taken into possession by the police---Motive for the occurrence having not been challenged, stood proved---No mitigating circumstance for awarding lesser sentence to accused, convicted under S.302(b), P.P.C. was available on record---Conviction and sentences of accused were maintained in circumstances.

AIR 1958 All. 255; 1996 PCr.LJ 231 and PLD 1983 SC 28 ref.

(b) Administration of justice---

----Principles---Approach of the Court should always be dynamic and while doing justice the technicalities should not be given much weight and the case should always be decided keeping in view the facts bearing effects on the merits of the case.

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

----S. 302---Sentence---Death sentence has to be awarded to the accused by the Trial Court in a murder case on its proof unless strong reasons exist in his favour for award of lesser sentence.

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

----S. 302---Appreciation of evidence---Principles---Quality and not the quantity of evidence should weigh with the Court while evaluating evidence brought from both the sides on the record.

Sardar Mashkoor Ahmad and Imran Aziz Qureshi for Appellants.

Sh. Asif Hussain for the State.

Date of hearing: 19th January, 2005.

2005 P Cr. L J 677

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD AKBAR---Petitioner

versus

THE STATE---Respondent

Crl. Misc. No.8534/B of 2004, decided on 21st December, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 420, 489-F & 506---Bail, grant of---Further inquiry---Business transactions had been taking place between parties and allegation of complainant that disputed cheque had been issued only for a single transaction, called for further inquiry---Was yet to be seen during course of trial as to when disputed cheques had been issued and as to whether S. 489-F, P.P.C. had been brought on Statute Book on the crucial date---Facts and circumstances of case demanded, further probe within the meaning of subsection (2) of S.497, Cr.P.C.---Offence did not attract prohibitory clause of S. 497(1), Cr.P.C.---Principal accused in the case had since been allowed bail by Trial Court which had not been challenged by complainant---Accused was admitted to bail, in circumstances.

Imtiaz Ahmad and another v. The State PLD 1997 SC 545; Muhammad Siddique v. Imtiaz Begum and 2 others 2002 SCMR 442; Muhammad Sadiq v. Muhammad Nisar and 7 others 2003 PCr.LJ 20 and Mehrban Ali v. The State and another 2004 SCMR 229 ref.

Shahid Iqbal Mian for Petitioner

Ghulam Haider Bhatti for the Complainant.

Mian Liaqat Ali for the State.

Date of hearing: 2nd December, 2004.

2005 P Cr. L J 681

[Lahore]

Before M. Bilal Khan, J

ASIA PERVEEN---Petitioner

versus

STATION HOUSE OFFICER, POLICE STATION CHINIOT SADDAR DISTRICT JHANG and 2 others---Respondents

Writ Petition No.5859 of 2004, heard on 11th February, 2005.

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

----Ss. 10 & 11---Criminal Procedure Code (V of 1898), S. 497--- Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Petitioner had claimed that she being sui juris had contracted a lawful marriage with co-accused of her own free-will and volition and that while she was living with her husband happily and was enjoying peaceful life, respondent fabricated and manoeuvred an earlier Nikah Nama whereupon she filed a suit for jactitation of marriage which was pending adjudication in Family Court---Petitioner had alleged that respondent with connivance with S.H.O. got registered F.I.R. for offences under Ss.10 & 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 against her husband/accused---Petitioner had sought quashing of said F.I.R. in her petition filed under Art.199 of the Constitution---Earlier alleged marriage of petitioner with respondent had been under close scrutiny before Family Court---Best forum to decide whether Nikah of petitioner with respondent was genuine or false, was Family Court, wherein both parties would be at liberty to lead evidence for and against and Family Court after properly examining issue would pronounce judgment---High Court, without quashing the proceedings stopped proceedings on F.I.R. till decision of Family Court or in case any appeal was filed till disposal of that appeal---Co-accused, who was arrested in said criminal case, was admitted to bail---No justification existed to quash F.I.R., therefore, Constitutional petition was disposed of accordingly.

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

Q.M. Saleem assisted by Ahmad Raza Malik for Petitioner.

Ch. Aamir Rehman, Addl. A.-G. assisted by Tanvir Ahmad Shami for the State with Muhammad Nawaz, S.-I., Muhammad Shafi A.S.-I. and Mrs. Naseem Bokhari, Deputy Superintendent, Dar-ul-Aman, Lahore for Respondents.

Muhammad Saeed Ahmad for Respondents Nos.2 and 3.

Date of hearing: 11th February, 2005.

2005 P Cr. L J 684

[Lahore]

Before Muhammad Farrukh Mahmud, J

ABDUL REHMAN---Petitioner

versus

STATION HOUSE OFFICER and another---Respondents

Writ Petition No.1507 of 2004/BWP, heard on 21st July, 2004.

Penal Code (XLV of 1860)---

----S. 489-F [as amended by Criminal Law (Amendment) Ordinance (LXXXV of 2002)---Criminal Procedure Code (V of 1898), S. 22-A---Constitution of Pakistan (1973), Art. 270-AA [as amended by Constitution (Seventeenth Amendment) Act (III of 2003)]---Registration of case---Application for---Application was filed under S. 22-A, Cr.P.C. for registration of criminal case against respondent, who had issued a cheque in favour of applicant, which was bounced---Application was dismissed by Additional Sessions Judge on the ground that Criminal Law (Amendment) Ordinance (LXXXV of 2002) which had introduced offence under S. 489-F, P.P.C., had died its natural death as same was not put before the Parliament within four months---Validity---Offence under S. 489-F, P.P.C. which was introduced through Criminal Law (Amendment) Ordinance, 2002, was very much alive as the same was protected under provisions of Art.270-AA of the Constitution as substituted by Constitution (Seventeenth Amendment) Act, 2003 promulgated on 31-12-2003---Criminal Law (Amendment) Ordinance, 2002 through which S. 489-F, P.P.C. was inserted was promulgated by the President on 25-10-2002 while all laws made/promulgated between 12-10-1999 to 31-12-2003 were protected by Constitution (Seventeenth Amendment), Act, 2003---Provisions of S.489-F, P.P.C. as introduced therefore, were alive and in force---Impugned order passed by Additional Sessions Judge was set aside declaring same to be without lawful authority and of no legal effect---Application under S.22-A, Cr.P.C. would be deemed to be pending before Additional Sessions Judge who would decide the same after hearing parties according to law and merits of case.

Shahtaj Sugar Mills Limited v. Province of Punjab through Secretary Food, Civil Secretariat, Lahore and 3 others 1998 CLC 1912; Abu Farida Khan v. The Province of East Pakistan and 2 others PLD 1964 Dacca 473; Sheikh Atta Muhammad v. Mian Muhammad Abdullah and 10 others PLD 1971 Lah. 210; S.A. Rafi and another v. Government of West Pakistan through the Secretary to the Government of West Pakistan, Lahore and 4 others PLD 1973 Lah. 539; Usman Ltd. v. The Collector of Customs (Appraisement), Customs House, Quetta and another PLD 1990 Quetta 1; and Ch. Zulfiqar Ali v. Chairman, NAB and others PLD 2003 Lah. 593 ref.

Ch. Muhammad Shafi Meo for Petitioner.

Malik Sajid Faroze for Respondent No.2.

Ahmad Mansoor Chishti, A.A.-G. with Tahir Khan, S.-I./ S.H.O. with record.

Date of hearing: 21st July, 2004.

2005 P Cr. L J 696

[Lahore]

Before M. Bilal Khan, J

SAJJAD HUSSAIN---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.257 of 2004, decided on 30th November, 2004.

Penal Code (XLV of 1860)---

----Ss. 324/337-F(iv), (v), (vi)---Criminal Procedure Code (V of 1898), S.345---Appreciation of evidence---Compromise between parties---Effect---During pendency of appeal an application under S. 345, Cr.P.C. duly supported by affidavits of complainant and injured prosecution witnesses was filed on behalf of accused seeking his acquittal on basis of compromise arrived at between parties---Complainant and injured prosecution witness appeared in Court and affirmed the factum of compromise arrived at between parties---Complainant party had stated that they had forgiven accused in the name of Allah and had no objection if accused was acquitted of the charge---Court being satisfied with genuineness and correctness of compromise arrived at between parties, set aside conviction and sentence awarded to accused by Trial Court and acquitted him of the charge and he was directed to be released.

Sh. Naveed Shehryar for Appellant.

Muhammad Aslam Malik for the State.

Date of hearing: 30th November, 2004.

2005 P Cr. L J 717

[Lahore]

Before Khawaja Muhammad Sharif, J

THE STATE ---Appellant

versus

TANVEER ANJUM and 2 others---Respondents

Criminal Miscellaneous No.9072/CB of 2004 (suo motu), decided on 28th January, 2005.

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

----S. 497(5)---Penal Code (XLV of 1860), S.392---Bail, cancellation of---Accused was not named in the F.I.R. and was involved in the case through a supplementary statement in which he was not connected even with the main part of snatching the car---Recovery of the car alleged against the accused was a joint one---Notice issued to accused by High Court for cancellation of his bail was withdrawn in circumstances.

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

----S. 497(5)---Penal Code (XLV of 1860), S.392---Bail, cancellation of---Accused were named in the F.I.R. with the specific role of having snatched the taxi of the complainant while taking the same on rent on the pretext of providing medical aid to a fake patient in the Hospital---Articles belonging to the complainant were recovered from the accused---Complainant had no animus or motive for false implication of accused in the case---Offence against the accused fell within the prohibitory clause of S.497(1), Cr.P.C.---Reasons advanced by Sessions Court for granting bail to accused were against the principles settled by the superior Courts---Bail granted to accused by Sessions Court was withdrawn in circumstances.

Sardar Munir Ahmad Dogar v. The State PLD 2004 SC 822 ref.

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

----S. 497(2)---Bail---Further inquiry---Principles---Discretionary relief of bail can only be extended to the accused on satisfaction by the Court about their being not connected at all with the commission of the offence---Ground of the case of accused being of further inquiry without any legal basis alone would not mean that he should be released on bail---Every case, more or less, is of further inquiry which does not make every accused entitled to be released on bail.

Sardar Munir Ahmad Dogar v. The State PLD 2004 SC 822 ref.

Malik Mubarik Ali for the State with Haji Qasim S.-I. with record.

Mian Muhammad Bashir for Respondent No.2 and Abdul Rashid Malik for Respondent No.1.

Respondent No.3 in person.

2005 P Cr. L J 726

[Lahore]

Before Sardar Muhammad Aslam and Sh. Azmat Saeed, JJ

MUHAMMAD SIDDIQUE alias BHERIA---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.1709 of 2004, heard on 3rd February, 2005.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 510---Appreciation of evidence---In order to prove the guilt of accused under S.9(c) of Control of Narcotic Substances Act, 1997, prosecution was duty bound to have proved in evidence that substance recovered from accused was in fact ‘Charas’---Prosecution, in that context had relied upon the report of Chemical Examiner---Record in case had revealed that instead of original, only a photocopy of report of Chemical Examiner was produced by prosecution, which did not in any manner cater for the requirement of S.510, Cr.P.C.; in such eventuality, no steps appeared to have been taken to prove the report of Chemical Examiner by production of Chemical Examiner as a witness---Copy of Chemical Examiner’s report, in circumstances, could not furnish the basis for conviction in the case and due to such salient feature of infirmities appearing in the case, High Court accepted appeal, set aside conviction and sentence recorded against accused by Trial Court and acquitted him of the charge.

Zahoorul Islam and 2 others v. The State 1995 PCr.LJ 484 and Gul v. The State PLD 1977 Kar. 1019 ref.

Syed Ehtesham Qadir Shah for Appellant.

Masood Sadiq Mirza for the State.

Date of hearing: 3rd February, 2005.

2005 P Cr. L J 736

[Lahore]

Before Ali Nawaz Chowhan, J

ZAFAR IQBAL alias KAKA---Petitioner

versus

ADDITIONAL SESSIONS JUDGE, PATTOKI DISTRICT KASUR and 3 others---Respondents

Writ Petition No.2044 of 2005, decided 17th February, 2004.

Criminal Procedure Code (V of 1898)---

----S. 176(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Disinterment of body of deceased---Application for---Respondent, who was brother of deceased, after 11 months of death of deceased, filed application under S. 176(2), Cr.P.C. for disinterment of body of deceased for Forensic testing and location of cause of death of deceased---Said application having been accepted by Sessions Judge, petitioner, who was nephew of deceased, had challenged said order of Sessions Judge alleging that application had been filed by brother of deceased after 11 months of death of deceased with mala fide intention simply to harass the petitioner---Medico-legal report was not available because body of deceased was never sent for examination purposes---Death certificate of deceased had shown that deceased remained sick for seven days before his death and reason for death of deceased was given as heart attack---No F.I.R. was got registered against any person regarding unnatural death of deceased---Complainant had to assert a motive and had also to assert the ground on which he was basing his suspicion regarding death of deceased---Once complainant was able to substantiate same while also informing the Court about justification of delay of 11 months, a case would have been registered and it was only after registration of case, the police had to collect evidence for purpose of proceeding further on the ground that a crime was committed---Order of Sessions Judge, could not be acted upon---High Court by not closing an opportunity of disinterment, observed that it should only be exercised in case complainant succeeded in making a persuasive accusation after explaining delay and then moved for disinterment of the body through police who had then to collect evidence---Being Muslims, one had to respect a dead body and only against serious accusation should allow disinterment.

Imran Humayun for Petitioner.

Sardar Muhammad Zubair Dogar for Respondent No.3.

Rana Naeem Sarwar, Addl. A.-G.

2005 P Cr. L J 744

[Lahore]

Before M. Bilal Khan, J

SABIR HUSSAIN and 3 others---Petitioners

versus

THE STATE---Respondent

Criminal Miscellaneous No.9069/B of 2004, decided on 26th January, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/109---Bail, grant of---Contention that the supplementary statement of the complainant involving the accused in the case had been ante-dated, could not be repelled outright in view of the statement of the draftsman visiting the spot---Story narrated by the conspiracy witnesses regarding overhearing the name of the deceased could not be taken as correct on its face value which needed further probe---Role of conspiracy/abetment attributed to the accused in the supplementary statement required further inquiry within the contemplation of S.497(2), Cr.P.C.---Early commencement of the trial was no ground to refuse concession of bail to accused if otherwise they deserved such concession on merits---Bail was allowed to accused in circumstances.

Syed Amanullah Shah v. State and another PLD 1996 SC 241 and Muhammad Akhtar v. The State 1998 Cr.LJ 682 ref.

Ch. Farooq Haider for Petitioner.

Sheikh Naveed Shehryar assisted by Iftikhar Ahmad Mian for the Complainant.

Ijaz Ahmad Bajwa for the State with Manzoor Ahmad, S.-I.

2005 P Cr. L J 754

[Lahore]

Before Sh. Azmat Saeed, J

IKRAM-UL-HAQ---Petitioner

versus

INSPECTOR-GENERAL OF POLICE, PUNJAB, LAHORE and 12 others---Respondents

Writ Petition No.1292 of 2005, decided on 11th February, 2005.

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

----Ss. 302, 324, 148 & 149---Police Order (22 of 2002), Art.18(6)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Second change of investigation---Earlier, as a consequence of Constitutional petition filed by complainant, Additional Inspector-General of Police changed investigation of case and transferred the same to Regional Investigation Branch where investigation was concluded, challan was filed and trial had also commenced---One of accused persons filed application before Inspector-General of Police, Punjab for transfer of investigation who directed transfer of investigation and pursuant thereto impugned notice was issued to parties for joining investigation on specified date before Investigating Officer---Complainant/petitioner had challenged summons for appearance on two grounds; firstly, that since challan had been submitted and trial had commenced, no investigation could take place, secondly that order of transfer of investigation by Inspector-General of Police, was illegal and ultra vires of Art.18(6) of Police Order, 2002---Validity---First objection of complainant/ petitioner was misconceived because no legal bar existed for the conduct of investigation of a case even after filing of report under S.173, Cr.P.C., and Police was authorized under law to carry out fresh investigation and submit its report to the Court---Second objection with regard to jurisdiction of Inspector-General of Police, was correct because in terms of Art.18(6) of Police Order, 2002---Inspector-General of Police, had no power to transfer investigation of a case except on recommendation of Board constituted under Art.18(6) of Police Order, 2002---No independent powers of transfer of investigation had been conferred upon Inspector-General of Police of the Province without recommendation of Board constituted for the purpose---Order of transfer of investigation passed by Inspector-General of police, being illegal and ultra vires of the Police Order, 2002, was set aside along with notice of appearance issued to petitioner/complainant.

Muhammad Yousaf v. The State 2000 SCMR 453 and Kaneez Fatima v. Inspector-General of Police Punjab, Lahore and others 2004 MLD 1520 ref.

(b) Interpretation of statutes---

----Proviso in a statute---Scope---Proviso in a statute generally could not travel beyond the scope of main enactment---Proviso was ordinarily subordinate to main clause and must be read along with the same.

Commissioner of Income Tax v. Messrs West Punjab Factories Ltd., Okara PLD 1966 (W.P.) Lah. 236 and Province of Punjab v. Nadeem & Company, Lahore PLD 1976 Lah. 1273 ref.

Muhammad Aslam Zar for Petitioner.

Muhammad Sohail Dar, A.A.-G. for Respondents.

2005 P Cr. L J 761

[Lahore]

Before Ali Nawaz Chowhan and Rustam Ali Malik, JJ

MUHAMMAD ASHFAQ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.361 of 2000, C.M. No.103/M of 2005, decided on 2nd February, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 35, 397 & 561-A---Penal Code (XLV of 1860), Ss.302/34/392---Running of sentences concurrently---Accused was convicted and sentenced for offences under Ss.302 & 392, P.P.C.---Accused under S.302 was sentenced to death with compensation to be made to legal heirs of deceased and under S. 392 to 14 years’ R.I. with fine---Sentence of death awarded to accused by Trial Court subsequently was reduced to life imprisonment by High Court---Accused had applied that sentences in both offences be ordered to run concurrently in the interest of justice---Provisions of S. 397, Cr.P.C. being applicable, sentences would run concurrently---Appellate Court being fully empowered to exercise powers under S.397, Cr.P.C., High Court directed that sentences in both counts and tried together, would run concurrently.

AIR 1929 All. 585; AIR 1931 Bom. 529(1); AIR 1961 Pat. 138; AIR 1964 Andhra Pradesh 449; Zakir Ali v. The State PLD 1977 Kar. 833. Altaf Hussain v. The State 1987 PCr.LJ 719; Khan Zaman and others v. The State 1987 SCMR 1382; Gul Muhammad and others v. State 1999 SCMR 2756; Javed Sheikh v. The State 1984 SCMR 153 and Juma Khan and another v. The State 1986 SCMR 1573 ref.

Ikram-ud-Din Khan for Petitioner.

Ms. Salma Malik, Asstt. A.-G. for the State.

2005 P Cr. L J 766

[Lahore]

Before Ch. Iftikhar Hussain, J

Mian ASIM FARID and another---Petitioners

versus

INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN and 4 others---Respondents

Writ Petition No.1181 and C.M. No.2 of 2004, decided on 23rd December, 2004.

Penal Code (XLV of 1860)---

----Ss. 379/406/420---Constitution of Pakistan (1973), Art.199---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.7(4)---Constitutional petition---Quashing of F.I.R.---F.I.R. registered with police on written application of one of the officers of the Bank was sought to be quashed on the ground that case could not be registered against petitioner as according to S.7(4) of Financial Institutions (Recovery of Finances) Ordinance, 2001, cognizance of offence under the said Ordinance could only be taken by a Banking Court and that too on the complaint in writing of person authorized by the bank in that behalf---Validity---Registration of case with the police on written application of Bank’s Officer, was not in accordance with law on the subject because cognizance of offence in case could only be taken by Banking Court and that too on the complaint in writing by a person authorized by the Financial Institution/Bank---Continuance of F.I.R. in the case would amount to nothing, but mere abuse of process of law---F.I.R., was quashed, in circumstances.

Sajid Mahmood Sheikh for Petitioners.

Shoaib Zafar for Respondents Nos.1 and 4.

Ch. Jamshaid Hussain, A.A.-G. for Respondents Nos.2 and 3.

Ijaz Ahmad, S.-I. with Record.

2005 P Cr. L J 768

[Lahore]

Before Khawaja Muhammad Sharif and Tanvir Bashir Ansari, JJ

Malik MUHAMMAD IQBAL and others---Petitioners

versus

THE STATE---Respondent

Criminal Miscellaneous No.8382/B of 2004,. Decided on 26th January, 2005.

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

----Ss. 204, 205, 91 & 190---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Summoning of accused under S.204, Cr.P.C. in a complaint case---Procedure.

Section 204, Cr.P.C. deals with question of issuance of process to accused when a Court taking cognizance of an offence in a complaint case is of the opinion that there is sufficient ground for proceeding further with the matter. This, in no way, deals with an offence, the cognizance of which is taken on a report made by a Police Officer of facts constituting an offence.

Present case, against accused had proceeded on the report made by the Police Officer concerned. The cognizance of such an offence is taken by Magistrate under section 190, Cr.P.C. An Anti-Terrorism Court has powers of Court of Magistrate as well as that of Sessions Court. Subsection 1(b) of S.190, Cr.P.C. suggests that any Magistrate may take cognizance of an offence upon report in writing of such facts made by Police Officer. There was no complaint before the Anti-Terrorism Court in the matter. The Judge, Anti-Terrorism Court had taken cognizance of the offence on the incomplete challan submitted by the Police Officer concerned. It was thus, the case one under section 190 (1)(b), Cr.P.C. and not under section 204, Cr.P.C. So, the view that he had acted under section 204, Cr.P.C. while issuing process to these accused persons was fallacious and wrong. A Magistrate can take cognizance of an offence, even in case of negative report submitted by Police that accusation is baseless and no case is made out against accused. The same is the position about taking cognizance of an offence under section 190, Cr.P.C. Where the Court had recorded statement under section 200, Cr.P.C. and after finding prima facie case had taken cognizance of the matter, it was under Chapter XVII, Cr.P.C. and then sections 204 and 205, Cr.P.C. would come into operation. Judge, Anti Terrorism Court had erred in holding that he took cognizance of the matter under section 204, Cr.P.C. in issuing process to these accused.

Criminal Miscellaneous No.3264/BC of 2004; Safdar Ali v. Zafar Iqbal and others 2002 SCMR 63; Azmat Bibi and another v. Asifa Riaz and 3 others PLD 2002 SC 687 and Mazhar Hussain Shah v. The State 1986 PCr.LJ 2359 ref.

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

----S. 497---Penal Code (XLV of 1860), S.302---Bail, grant of---Grounds---First information Report is recorded to set the machinery of law into motion---Merely the fact that names of the accused were not stated in the F.I.R. does not make out a case for bail.

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

----S. 497---Penal Code (XLV of 1860), S.302---Bail---Court, at bail stage has to make tentative assessment of the evidence on record and evaluation of evidence is not permissible in finding out whether or not reasonable grounds existed for belief in accused’s guilt for involvement in an offence punishable with death or imprisonment for life---Trial Court has prerogative, after recording of evidence to see as to which offence is made out.

Mazhar Hussain Shah v. The State 1986 PCr.LJ 2359 ref.

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

----S. 21-D---Criminal Procedure Code (V of 1898), S.497---Penal Code (XLV of 1860), Ss.41 & 302---Bail---Procedure---First Information Report, in the present case, had mentioned Ss.6 & 7, Anti Terrorism Act, 1997---Anti Terrorism Act, 1997 was a special law within the meaning of S.41, P.P.C. and where a statute had created a special procedure for the trial of such offence, it was that procedure that must be followed and not the ordinary procedure.

Writ Petition No.8962 of 2001 ref.

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

----Ss. 497 & 498---Penal Code (XLV of 1860), S.302---Bail---Grant of “bail before arrest” and “after arrest”---Different considerations.

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

----S. 21-D, 19, 6 & 7---Penal Code (XLV of 1860), S.302---Criminal Procedure Code (V of 1898), S.498---Bail, before arrest, refusal of---Police Officers were the accused in the present case, who, during the operation in a jail, had resorted to indiscriminate firing killing a number of persons; prima facie no caution, care or tactics were adopted to carry out the operation; investigation was carried out in a partial and dishonest manner; clothes and crime weapons were not taken into custody just to spoil the case of the prosecution; Site plan had not shown as to from where the police party had fired; doctor who had examined one of the deceased had given report showing favour to the police party; trial Court was yet to decide as to whether operation was undertaken in good faith or not after recording evidence; State Counsel could not refute that it was not only gross criminal negligence of the accused who had ordered for the operation and by implication, S.302, P.P.C. still held the field---All the accused police officers were present at the spot at the time of operation---No case of bail before arrest, in favour of petitioners accused was made out in circumstances---Bail petition of the accused was dismissed---Another accused who came in the jail premises along with mother of one of the under-trial prisoners, used filthy language about the accused under-trial prisoners and it was then that they were infuriated---Said accused also remained absconder for sufficiently long time and there was apprehension that he will abscond after he was allowed bail, the provisions of S.21D, Anti-Terrorism Act, 1997 were also attracted to his case, his bail application was also dismissed.

PLD 1970 SC 173; PLJ 2000 Cr.C. 991; 2003 SCMR 1419; PLJ 1989 SC 526; PLD 2002 SC 687; 2002 SCMR 63; PLD 2003 Lah. 588; 1985 PCr.LJ 325; PLD 2001 Lah. 127; Writ Petition No.20988 of 2002; AIR 1930 Lah. 266; AIR 1940 Lah. 210; 1996 SCMR 931; 1978 PCr.LJ 321; Muhammad Yousaf v. Malik Muhammad Iqbal and others Criminal Miscellaneous No.3264/BC of 2004; Safdar Ali v. Zafar Iqbal and others 2002 SCMR 63; Azmat Bibi and another v. Asifa Riaz and 3 others PLD 2002 SC 687; Mazhar Hussain Shah v. The State 1986 PCr.LJ 2359; The State v. Zulfiqar Ali Bhutto 1978 PCr.LJ 321; Writ Petition No.8962 of 2001; Muhammad Amin alias Irfan and another v. State 2004 SCMR 1560; The State v. Hamtho 1971 SCMR 686; Muhammad Nawaz v. The State 2002 SCMR 1381 and Dr. Muhammad Shoaib Suddle, D.I.-G., Police Karachi and others v. The State 1997 SCMR 1234 ref.

Syed Mazahar Ali Akbar, Malik Amjad Pervaiz and Mr. Naveed Rasool Mirza for Petitioners.

Syed Ghulam Abbass Bokhari, Ch: Tahir Farooq Cheema, Ch: Mushtaq Ahmad Cheema, M. Azhar Chaudhary and Mr. Liaqat Ali Sandhu for the Complainant.

Mrs. Yasmeen Seghal, A.A.-G. with Basharat Ahmad SI/SHO, Ghulam Rasool A.S.-I. from P.S. Civil Lines Sialkot.

2005 P Cr. L J 825

[Lahore]

Before Umar Ata Bandial, J

KAMRAN KHAN---Petitioner

versus

STATION HOUSE OFFICER, POLICE STATION MODEL TOWN GUJRANWALA and 2 others---Respondents

Writ Petition No.500 of 2005, decided on 10th February, 2005.

Criminal Procedure Code (V of 1898)---

----S. 154---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of FIR---Recovery of leased vehicle by financial institution---Leased vehicle was sold by lessee to complainant, who had been depositing lease rentals with the financial institution but the same were being wrongly credited to a different account---Petitioner being an employee of the financial institution took over the possession of the leased vehicle---Complainant claiming himself to be the bona fide purchaser of the vehicle had lodged FIR against the petitioner---Validity---Allegations made in FIR were neither baseless nor motivated solely by malice, therefore, the facts did not disclose a case for quashment of FIR---Complainant was in possession of the leased vehicle without being its registered owner in the registration book of the vehicle---Lessee as well as the subsequent persons in possession of the vehicle affirmed the lease agreement as being binding upon them because each of them accepted the obligation to pay lease rentals according to the lease agreement---Knowledge of subsequent persons, of rights and interest of the lessor in the vehicle, according to the terms of the lease agreement could not be ignored---Use and dealings of third persons with the vehicle was in violation of the lease agreement---Enforcement of a contractual right by lessor could not be converted into a criminal offence---Police authorities were bound to exercise statutory powers and functions strictly in accordance with law and they could not be permitted to defeat the spirit and nature of the commercial transactions between the lessor and its customer as they might have misconstrued and miscarried the transaction as contemplated by the lease agreement itself---High Court declined to quash the F.I.R.---Petition was disposed of accordingly.

Mian Tahir Maqsood for Petitioner.

Ghulam Ali, A.S.-I. Police Station Model Town Gujranwala with record.

Respondent No.3 in person.

2005 P Cr. L J 906

[Lahore]

Before Sh. Abdur Rashid, J

MUHAMMAD AZAM---Petitioner

versus

THE STATE and 2 others---Respondents

Writ Petition No.651 of 2005, decided on 3rd March, 2005.

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

----Ss. 419, 420, 467, 468, 471, 506 & 109---Constitution of Pakistan (1973), Art.199---Quashing of F.I.R.---Case of complainant was that besides forging the agreement to sell, petitioner had also extended threats to kill him which had constituted offence under S.506, P.P.C. which was a cognizable offence---Plea of petitioner was that even if entire prosecution allegations were accepted to be true, act of petitioner only fell within Ist Clause of S. 464, P.P.C. which offence was punishable under S. 468, P.P.C. and was non-cognizable offence---Petitioner further contended that F.I.R. could not be registered in non-cognizable offences and investigation could not take place in such like cases without prior permission of Magistrate and even arrest could not be made before obtaining warrants of arrest from him---Validity---No allegation existed on the record against petitioner that he, in any manner, by cheating, had dishonestly induced either complainant or owner/vendor of property in dispute to deliver any property to any person---Prima facie application of S.420, P.P.C. to the facts of the case was not attracted---No allegation was levelled against the petitioner that he in any manner forged any document which purported to be valuable security or a will---Prima facie application of S.467, P.P.C. was also not attracted in the case---Allegation against petitioner was that he allegedly signed, prepared and executed an agreement to sell by forging signatures of owner of property in dispute---Petitioner's act, in circumstances clearly fell within the purview of Ist clause of S.464, P.P.C. which offence was punishable under S.468, P.P.C. and was non-cognizable one---Allegation that petitioner had extended threats to kill complainant, was consequence of act of forging an agreement to sell by petitioner which was main offence---Threat was only verbal one and F.I.R. had revealed that while giving alleged threats to complainant, petitioner was not armed with any weapon---Mere verbal threat would not take case of petitioner within the purview of S.506 Part II, P.P.C., but would fall within ambit of S.506 Part I, P.P.C., which was also non-cognizable offence---Proper procedure having not been followed in the case, the manner in which F.I.R. in question had been recorded and proceeded, was not legally tenable---F.I.R. was quashed in circumstances.

1994 PLR 1017 Lahore ref.

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

----Ss. 154, 155 & 156---Recording of information in cognizable cases and in non-cognizable cases---Under provisions of S.154, Cr.P.C., a statutory duty had been cast upon officer incharge of Police Station to enter information regarding commission of any cognizable offence in a register the form of which was prescribed by Provincial Government which was known as "F.I.R. Parlance"---For recording of information of commission of a non-cognizable offence another book was prescribed which was known as 'Roznamcha' or Station Diary in which information relating to commission of non-cognizable offence was recorded---Police on such information generally did not initiate any action and complainant or informant after being given a copy of report so entered, was sent away---However, if S.H.O. would deem fit to initiate investigation, then under subsection (2) of S.155, Cr.P.C. he had to obtain order from Magistrate and if any arrest was to be effected then it could only be made after obtaining warrant of arrest from Magistrate under S.155(3), Cr.P.C.---Section 156(1), Cr.P.C. empowered an officer-in-charge of a Police Station to investigate any cognizable offence without any order of Magistrate.

M.M. Alam for Petitioner.

Najeeb Faisal Chaudhry, Addl. A.-G. with Rana Javaid Anwar, Muhammad Arif, S.-I. and Muhammad Iqbal S.-I.

Mian Muhammad Saeed for Respondents.

2005 P Cr. L J 937

[Lahore]

Before Ali Nawaz Chowhan and Rustam Ali Malik, JJ

MUHAMMAD NAWAZ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.71/J and Murder Reference No.133 of 2000, heard on 17th February, 2005.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Sentence, reduction---Testimony of eye-witness was corroborated by prosecution witness---Accused in his examination under S. 342, Cr.P.C. took plea that he fired at deceased out of Ghairat as at relevant time his sister was with him at the place of occurrence---Accused did not opt to appear as his own witness under S. 340(2), Cr.P.C., but produced defence witness---Facts of case had shown that a question of family honour somehow was involved in the case, but question was as to why accused had spared his sister---No Court would encourage honour killings---Case having fully been proved against accused, order of his conviction was upheld, but in view of entire back ground and circumstances of the case and also judicial standards used for choosing an appropriate sentence, it was proper that sentence of death awarded to accused by Trial Court, be reduced to 14 years R.I.---Sentence of death was altered to 14 years R.I., in circumstances.

Irrum Sajjad Gul for Appellant.

Malik Mahmood Ahmad for the Complainant.

S.D. Qureshi for the State.

Date of hearing; 17th February, 2005.

2005 P Cr. L J 957

[Lahore]

Before Maulvi Anwarul Haq and Muhammad Nawaz Bhatti, JJ

MUHAMMAD IKRAM and another---Petitioners

versus

JUDGE, SPECIAL COURT-I, and 2 others---Respondents

Writ Petition No.5795 of 2004, heard on 10th February, 2005.

Penal Code (XLV of 1860)---

----Ss. 302, 380, 411 & 34---Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 23---Constitution of Pakistan (1973), Art.199---Constitutional petition---Transfer of case from Special Court to Court of ordinary criminal jurisdiction---Challan of case in which a woman and a child aged 3/4 years were killed had been submitted before Judge Special Court under Anti-Terrorism Act, 1997---Application of accused filed under S. 23 of Anti-Terrorism Act, 1997 for transfer of case from Special Court to Court of ordinary criminal jurisdiction for trial having been rejected, accused had filed Constitutional petition against rejection order passed by Special Court---Validity---Section 6(1) of Anti-Terrorism Act, 1997, had provided a criterion to determine where a criminal act was designed to create a sense of fear or insecurity in the minds of general public disturbing even tempo of life and tranquility of Society, which could be treated to be a terrorist act---Ordinary crimes were not to be dealt with under Anti-Terrorism Act, 1997---Physical harm to the victim was not the sole criterion to determine the question of terrorism---What was to be seen was the psychological effect produced by violent action or having the potential of producing such an effect on the society as a whole or a section thereof---Where a criminal act was designed to create a sense of fear or insecurity in the minds of the general public disturbing even tempo of life and tranquility of the society, same could be treated to be a terrorist act---Occurrence, in the present case, had taken place inside the house and a private motive was also ascribed---Offence committed in the case though certainly was most heinous in nature, but it did not mean that it did qualify to be a terrorist act within contemplation of S. 6 of Anti-Terrorist Act, 1997 or the Schedule thereof---Reasons stated by Special Court in the impugned order did not appear to be very sound---High Court accepting Constitutional petition, declared impugned order without lawful authority and of no legal effect and set aside the same---Judge Anti-Terrorism Court was directed to transmit record of petitioner’s case to Sessions Judge concerned.

Ch. Bashir Ahmad v. Naveed Iqbal and 7 others PLD 2001 SC 521; Muhammad Mushtaq v. Muhammad Ashiq and others PLD 2002 SC 841; Basharat Ali v. Special Judge, Anti-Terrorism Court-II, Gujranwala PLD 2004 Lah. 199; Abdul Ghafoor Bhatti v. Muhammad Saleem and others 2003 SCMR 1934; Jahangir Akhtar Awan and 2 others v. The State and 8 others PLD 2000 Kar. 89; Shaikh Muhammad Amjad v. The State 2002 PCr.LJ 1317 and Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 ref.

Ch. Faqir Muhammad for Petitioners.

Ch. Pervaiz Aftab for the Respondent/Complainant.

M.R. Khalid Malik, Addl. A.-G. and Muhammad Yasin, S.-I.

Date of hearing; 10th February, 2005.

2005 P Cr. L J 963

[Lahore]

Before Khawaja Muhammad Sharif, J

IQRAR alias QARI---Petitioner

Versus

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

Writ Petition No.17146 of 2004, head on 23rd February, 2005.

Penal Code (XLV of 1860)---

----S. 324/34---Anti-Terrorism Act (XXVII of 1997), S.7---Constitution of Pakistan (1973), Art.199---Constitutional petition---Transfer of case from Anti-terrorism Court to ordinary Court, refusal of---Accused had made direct firing on an Advocate on the road around the District Courts when he was busy in his professional engagements---Victim had received seven fire-arm injuries which showed the tenor and intention of the accused, however, he had luckily survived---Firing at such a large scale must have created insecurity and panic in the minds of the people present at the place of occurrence which was admittedly a public place and same feeling must have been entertained by the persons engaged with the legal profession---Occurrence having taken place around the District Courts and the victim being an Advocate, the same must have engaged the attention of the media in consequence whereof public-at-large must have also felt the same feelings---Offence in question, thus, had nexus with the object of Anti-Terrorism Act, 1997 and being covered by its Ss.6, 7 & 8 was liable to be tried by the Anti-Terrorism Court---Trial Court had rightly declined to transfer the case to the Court of ordinary jurisdiction---Constitutional petition was dismissed accordingly.

PLD 2004 Lah. 199; Ziaullah v. Special Judge, Anti-Terrorist Court, Faisalabad and 7 others 2002 SCMR 1225 and Muhammad Farooq v. Ibrar and 5 others PLD 2004 SC 917 ref.

Umar Farooq Sial and Ch. Muhammad Riaz for Petitioner.

Tahir Mehmood Gondal Asstt. A.-G. for the State.

Hafiz Muhammad Yousaf for the Complainant.

Date of hearing; 23rd February, 2005.

2005 P Cr. L J 967

[Lahore]

Before Muhammad Nawaz Bhatti, J

BASHIR AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3742/B of 2004, decided on 14th February, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324/148/149---Bail, grant of---Accused had been declared innocent during investigation---Although Court was not bound by the ipsi dixit of police, yet the same was relevant at bail stage especially when the finding was with regard to the innocence of accused---“Kassi” as alleged in the F.I.R. was not recovered from the accused, rather a Sota had been recovered from him---Kassi blow according to investigation had been attributed to co-accused and the accused though present at the spot was not found to have committed any overt act in the occurrence---Case against accused, in the circumstances, needed further probe into his guilt---Accused was admitted to bail accordingly.

Zafar Iqbal v. The State 2002 MLD 454; Dr. Muhammad Aslam v. The State 1993 SCMR 2288; Muhammad Ilyas v. Ijaz Ahmad Butt and another 1992 SCMR 1857; Manzoor and others v. The State PLD 1972 SC 81 ref.

Ch. Pervaiz Aftab for Petitioner.

Farrukh Pervaiz Cheema for the Complainant.

Atif Nawaz for the State with Ghulam Rasul, A.S.-I. with record.

2005 P Cr. L J 975

[Lahore]

Before Khawaja Muhammad Sharif, J

ARSHAD and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.993 of 2003, heard on 17th December, 2004.

Penal Code (XLV of 1860)--‑

‑‑‑‑Ss. 334, 337‑D & 34‑‑‑Appreciation of evidence‑‑‑Left hand of complainant/victim was amputated and manner in which hand was amputated was callous and brutal one‑‑‑One of accused, after having taken injured into his "Japha", had thrown victim on the ground to enable other accused to inflict `Bughda' blow in consequence whereof left hand of victim was amputated‑‑‑Accused did not remain content on having amputated victim's hand only but picked same and had thrown it in a nearby field which had shown their state of mind‑‑‑Ocular account was corroborated by Medical evidence and there was no need to further corroborate prosecution case‑‑‑Trial Court having already taken a lenient view while awarding sentence to accused persons, there was no reason to further take any lenient view regarding the quantum of sentence‑‑­Prosecution having succeeded to prove its case against accused beyond any shadow of doubt, appeal filed by them against their conviction and sentences, was dismissed having no merit and conviction and sentences awarded to them by Trial Court were maintained in totality.

1987 SCMR 333; 2004 SCMR 1723; 2004 PCr.LJ 1906; 2004 MLD 1457; PLJ 2004 Crl. Cases Lahore 986 and 1993 PCr.LJ 366 ref.

Sittar Sahil for Appellants.

Ch. Muhammad Hanif Khatana, A.‑G. Punjab for the State.

Mian Tasneem Anwar for the Complainant.

Date of hearing: 17th December, 2004.

2005 P Cr. L J 979

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD AFZAL and others‑‑‑Petitioners

Versus

HAJI AHMED and others‑‑‑Respondents

Criminal Miscellaneous No.34/Q of 2005, decided on 30th March, 2005.

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

‑‑‑‑S. 561‑A‑‑‑Delay of several years in filing complaint‑‑‑Quashing of such proceedings‑ ‑‑Scope‑‑‑Mere delay by itself would not be a ground to quash proceedings.

Rehmat Sindhu and 5 others v. The State 1999 MLD 1632 and State v. Gulzar Muhammad and others 1998 SCMR 873 rel.

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

‑‑‑‑S. 561‑A‑‑‑Interference by High Court at pre‑trial stage of proceedings‑‑‑Scope‑‑‑Normally, prosecution should be given full chance to prove its case‑‑‑Interference at pre‑trial stage deprecated.

Khalid iftikhar v. The State PLD 1997 SC 275 fol.

Rehmat Sindhu and 5 others v. The State 1999 MLD 1632 and The State v. Asif Ali Zardari and, another 1994 SCMR 798 distinguished.

M. Asghar Khan for Petitioner.

2005 P Cr. L J 997

[Lahore]

Before Sh. Javaid Sarfraz, J

M. ASGHAR‑‑‑Petitioner

Versus

ADDITIONAL DISTRICT JUDGE‑‑‑Respondent

Writ Petition No.20144 of 2004, decided on 15th December, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

-‑‑Ss. 22‑A & 22‑B‑‑‑Constitution of Pakistan (1973), Art.199‑­onstitutional petition‑‑‑Registration of case‑‑‑Petitioner had alleged that respondents armed with deadly weapons criminally trespassed into his house, caused injuries to him and took golden ornaments and cash amounting to Rs.20,000‑‑‑Petitioner had submitted that he moved application for registration of case, but the respondent before whom said application was filed had not taken any action thereon‑‑‑Petitioner had further submitted that he moved application under Ss.22‑A & 22‑B Cr.P.C. before Sessions Judge who called for police report and according to police report submitted before Additional Sessions Judge earlier on F.I.R. under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 a case stood registered against petitioner party and that allegations levelled by petitioner were baseless and that he had submitted application as a counterblast against case registered against him‑‑‑Validity‑‑‑Petitioner could file a private complaint to redress his grievance against respondents, if so advised‑‑‑Constitutional petition was disposed of accordingly.

Muhammad Naveed Shabbir Goraya for Petitioner.

Najeeb Faisal Chaudhry, Addl. A.‑G. along with Ch. Safdar Ali Wahla, A.A.‑G. on Court's call.

2005 P Cr. L J 998

[Lahore]

Before Asif Saeed Khan Khosa and M.A. Shahid Siddiqui, JJ

ZAHID KARIM and others‑‑‑Appellants

Versus

THE STATE and others‑‑‑Respondents

Criminal Appeals Nos.9, 10, 11 and Murder Reference No.4 of 1999, heard on 28th March, 2005.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34, 324/34 & 337‑A(i)/34‑‑‑Criminal Procedure Code (V of 1898), Ss.353 & 537‑‑‑Trial held in absence of accused at a place other than the notified place‑‑‑Validity‑‑‑Trial Court had recorded the statements of five prosecution witnesses in the absence of accused and at a place other than the notified place of the trial, i.e., Central Jail, in violation of the mandatory provisions of S.353, Cr.P.C.‑‑‑Such contravention of the provisions of S.353, Cr.P.C. could not be termed as an error, omission or irregularity so as to be curable under S.537, Cr.P.C., as it was nothing but a downright illegality vitiating the relevant proceedings of the trial of accused‑‑‑Convictions and sentences of accused were set aside in circumstances and the case was remanded to the Trial Court for recording the statements of the said five prosecution witnesses afresh within the premises of the relevant jail in the presence of accused and then to decide the case afresh in accordance with law.

Muhammad Asghar Khan Rokhari for Appellants (in all the three appeals).

Ch. Ghulam Hussain, for the State (in all the three appeals) with Malik Zia Ullah Superintendent, New Central Jail, Multan with the relevant record.

Date of hearing: 28th March, 2005.

2005 P Cr. L J 1002

[Lahore]

Before Tassaduq Hussain Jillani and Bashir A. Mujahid, JJ

MUHAMMAD SHAHBAZ and others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondents

C. M. Nos.2 of 2003 and 1 of 2004 in Criminal Appeal No.447 of 2002 decided on 23rd June, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

-‑‑S. 426‑‑‑Penal Code (XLV of 1860), Ss.302, 324, 148 & 149‑‑­Suspension of sentence‑‑‑Petitioners/accused were not attributed any jury to the deceased‑‑‑Only role attributed to petitioner was a simple ire‑arm injury on person of complainant and according to Medical report of Board of Doctors the accused was 23 years old at time of Medical examination which would mean that at time of occurrence he was below 18 years‑‑‑Initial report under S.173, Cr.P.C. showed that accused persons were declared innocent, however in subsequent Investigation and in supplementary challan they both were held guilty‑‑­Third accused was 65 years of age and he was declared innocent in two successive investigations on basis of which in the initial report under S.173, Cr.P.C. he was placed in Column No. 2 and it was only in subsequent investigation that he was found involved‑‑‑Said accused remained on bail during trial on account of his age and the fact that he was suffering from Pulmonary Tuberculosis‑‑‑Allowing petitions, sentences of petitioners were suspended till the final disposal of their appeals.

Safdar Hussain Tarar and Pervez Iqbal Tarar for Petitioners.

Mian Abdul Qayyum Anjum and Mrs. Tehseen Irfan for the State.

2005 P Cr. L J 1008

[Lahore]

Before Muhammad Nawaz Bhatti, J

Mst. SHAREEFAN BIBI‑‑‑Petitioner

Versus

MANZOOR HUSSAIN and others‑‑‑Respondents

Criminal Miscellaneous No.88/CB of 2005, decided on 11th April, 2005.

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

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), Ss.354, 452 & 34‑‑­Application for cancellation of bail ‑‑‑Un‑explained delay of one month and 26 days was in lodging F. I. R. and case of accused did not fall within prohibitory clause of S.497, Cr.P.C.‑‑‑Accused, at the time of occurrence had been shown empty‑handed‑‑‑Impugned bail granting order had shown previous enmity between the parties and due to that reason case was registered against accused‑‑‑In absence of any valid ground for cancellation of bail, petition for its cancellation was, dismissed.

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

‑‑‑‑S. 497(5)‑‑‑Cancellation of bail‑‑‑Considerations‑‑‑Considerations for cancellation of bail were different from the considerations for grant of bail‑‑‑Court could cancel bail granted to accused which was granted by a Court having no jurisdiction to grant; accused on bail had committed same offence for which he was being tried or had been convicted; accused on bail hampered the investigation; accused on bail had tampered with evidence; accused absconded after grant of bail; accused got bail on the basis of false averments regarding his age or illness, etc.; accused was impleaded as the principal offender in several cases which badly affected people at large as in the case of heroin smuggling; grant of bail to an accused would become a foundation of revenge against complainant party, prosecution or the witnesses and bail order of Subordinate Court was devoid of reasoning while granting bail and facts of case were fully implicating accused for attracting S.497(i), Cr.P.C.‑‑‑Strong and exceptional grounds were needed for cancellation of bail when bail was granted by a competent Court.

Muhammad Ramzan v. Taj Muhammad and another 1996 PCr.LJ 2006 and Bashir Ahmad v. Mirza Muhammad Ayub 1991 MLD 579 ref.

Hafiz Muhammad Naveed Akhtar for Petitioner.

2005 P Cr. L J 1022

[Lahore]

Before Khawaja Muhammad Sharif J

TAHIR WAHEED and others‑‑‑Petitioners

Versus

THE STATE and another‑‑‑Respondents

Criminal Revision No. 795 of 2004, decided on 11th October, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 324/353/34‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.140‑‑‑Criminal Procedure Code (V of 1898) Ss.540, 161 & 162‑‑‑Cross‑examination as to previous statements in writing‑‑‑Cross‑version in a challan case and a complaint case about the murders of two persons were pending in Trial Court‑‑‑During the cross‑examination of Court‑witnesses a question arose whether they could not be confronted with their previous statements recorded under S.161, Cr.P.C.‑‑‑Two persons had lost their lives in police encounter‑‑‑All the witnesses were police officials including the complainant‑‑‑Truth was to be elucidated from the witnesses‑‑‑Provisions of S.540, Cr.P.C. could not be interpreted so as to defeat other provisions of the Criminal Procedure Code, 1898‑‑‑Witness called and examined or recalled or re‑examined under S.540, Cr.P.C, retained his character as a prosecution or a defence witness and he would be a Court-­witness simpliciter if he was cited neither a prosecution witness nor a defence witness‑‑‑Given up prosecution witness if examined under S.540, Cr.P.C., therefore, could be confronted with his police statement in terms of S.162, Cr. P. C.‑‑‑Impugned order passed by the Trial Court was upheld in circumstances.

Ghulam Haider v. The State PLD 1957 Lah. 519; 1980 PCr.LJ 570; 1980 PCr.LJ 128 and Noor Elahi's case PLD 1966 SC 708 ref.

Jewan and others v. The State 1980 PCr. LJ 570 rel.

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

‑‑‑‑Ss. 540 & 162‑‑‑Penal Code (XLV of 1860), Ss.324/353/34‑‑‑Use of previous statement in evidence ‑‑‑Given up prosecution witness if examined under S.540, Cr.P.C. can be confronted' with his police statement in terms of S.162, Cr.P.C.

Jewan and others v. The State 1980 PCr.LJ 570 ref.

Ch. Zafar Iqbal for Petitioners.

Ch. Muhammad Hanif Khatana, Addl. A.‑G. for the State.

Mirza Aziz‑ur‑Rehman assisted by Miss Nosheen Taskeen for Respondents.

Date of hearing: 11th October, 2004.

2005 P Cr. L J 1025

[Lahore]

Before Syed Shabbar Raza Rizvi, J

NOOR MUHAMMAD KHAN‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1049/B of 2005, decided on 7th April, 2005.

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

‑‑‑‑S. 498‑‑‑Pre‑arrest bail‑‑‑Essentials‑‑‑Pre‑arrest bail is awarded in extraordinary circumstances, e.g.; when by a bare reading of the F.I.R. no case is made out, when obvious mala fides exist on part of the police or the complainant; political victimization on part of the Government is obvious or when the finding of the Investigating Officer is not in accord with overwhelming evidence.

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

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), Ss.406/420‑‑‑Pre‑arrest bail, refusal of‑‑‑Accused was nominated in the F.I.R.‑‑‑No mala fides were alleged even against the police‑‑‑Accused was found to have committed the offence in the inquiry conducted by the Regional Chief Manager of me Bank‑‑‑Case against accused was not fit for grant of extraordinary concession of bail before arrest‑‑‑Application for pre‑arrest bail was dismissed accordingly.

Ch. Munir Ahmad for Petitioner.

Shahid Shabbir for the Complainant.

Qazi Zafar Iqbal for the State.

Nazir, A. S. I.

2005 P Cr. L J 1035

[Lahore]

Before Muhammad Muzammal Khan, J

RASHEED MASIH‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2082/B of 2005, decided on 8th April, 2005.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.337‑A(ii), 337‑F(i), 148 & 149‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑No injury with sharp edged weapon was found on person of complainant and medical evidence was at variance with ocular stance of prosecution ‑‑‑F.I.R. in the case was registered with an unexplained delay of 24 hours despite the fact that Police Station was closely located to the place of occurrence‑‑‑Injuries on persons from accused's party had not been mentioned in the F.I.R. and said suppression had negatively reflected on prosecution story‑‑Complainant, though had mentioned in the F.I.R. that accused took the complainant out of his house and assaulted him in a street, but scuffle was undisputedly occasioned in a public thoroughfare and no evidence was on file to show that who, out of the parties, was aggressor and that fact would be decided by the Trial Court after recording of evidence‑‑Such facts had made the case of accused that of further inquiry‑‑‑Accused joined police investigation while on physical remand and his further remand was no more needed for investigation purpose‑‑‑No probability existed of abscondence of accused or his tampering with the prosecution evidence‑‑‑Bail could not be withheld as punishment and further detention of accused would not advance prosecution case any more‑‑‑Accused would face the sentence if ultimately convicted by Trial Court at the conclusion of case‑‑‑Accused having made out a case for his post‑arrest bail in the case registered against him, he was admitted to bail, in circumstances.

Justin Gill for Petitioner.

Riaz Qadeer Khan Lodhi for the State with Muhammad Amin, S.H.O.

2005 P Cr. L J 1037

[Lahore]

Before Nasim Sabir Ch., J

IFTIKHAR alias AATA‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.914/B of 2004, decided on 13‑4‑2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.395/412‑‑‑Bail, grant of‑‑­Possibility of accused having been shown‑ to the prosecution witness before conducting identification parade could not be ruled out‑‑‑‑Pendency of twelve cases against the accused without conviction in any of them was of no avail to prosecution‑‑‑Commission of offence was reported to the police after twenty days without any explanation for the delay by the prosecution‑‑‑No independent witness was associated with the recovery proceedings‑‑‑Recovery was effected from the accused after four days of his arrest without any specific marks of identification‑‑‑Accused was behind the bars for the last more than one year without any progress in his trial‑‑‑Case against accused needed further inquiry in circumstances and he was admitted to bail accordingly.

Altaf Ibrahim Qureshi for Petitioner.

Mehr Ashfaq for the State.

Rana Muhammad Nazir Saeed for the Complainant.

Date of hearing; 13th April, 2004.

2005 P Cr. L J 1048

[Lahore]

Before Syed Shabbar Raza Rizvi, J

SAGHEER AHMAD alias BHOLA‑‑‑Petitioner

Versus

SHAHBANA QADIR and 2 others‑‑‑Respondents

Writ Petition No. 3049 of 2005, decided on 27th April, 2005.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 145‑‑‑Dispute as to shop causing breach of peace‑‑‑Shop could be treated as "land" as defined in S.145(2), Cr.P.C. but the commodity lying in the shop, as in the present case, could not be said to be its produce and therefore could not be subject to attachment or sealing under S.145, Cr.P.C.‑‑‑Principles.

Sheikh Sarwar Ali v. The State PLD 1987 Lah. 633 fol.

Muhammad Amjad Pervez for Petitioner.

Malik Muhammad Suleman Awan for Respondent No. 1.

Ch. Khurshid Anwar Bhinder, Addl. A.‑G.

2005 P Cr. L J 1056

[Lahore]

Before Ch. Ijaz Ahmad, Actg. C. J.

MUHAMMAD NAZIR‑‑‑Petitioner

Versus

SAFDAR JAVED SYED, SENIOR MEMBER, BOARD OF REVENUE, PUNJAB and 6 others‑‑‑Respondents

Criminal Original Nos. 1155/W and 1156/W of 2004 in Writ Petitions Nos. 13152 and 3784 of 2004, decided on 25th April, 2005.

Contempt of Court‑‑‑

‑‑‑‑Application by petitioner for issuing contempt notice to the Authority on the basis of alleged non‑compliance of order of the High Court‑‑‑High Court in a Constitutional petition, had only directed to the alleged contemner, the Authority, to decide the representation of the petitioner, who had decided the same and referred the case to the Departmental Promotion/Selection Committee with the direction to convene the meeting within one month and meeting was held and case of the petitioner was deferred against which the petitioner had also filed appeal before the Higher Authority which was pending adjudication‑‑‑High Court, in circumstances, declined to issue the contempt notice to the Authority‑‑­Contempt was always between the contemner and the Court‑‑‑Petition was dismissed in circumstances.

Nazir Ahmad for Petitioner.

Muhammad Hanif Khatana, Addl. A.‑G. for Respondents.

2005 P Cr. L J 1061

[Lahore]

Before Fazal‑e‑Miran Chauhan, J

Mst. GULZAR MAI ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.262/B of 2005, decided on 14th March, 2005.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑­Accused was stated to have made an extra‑judicial confession before the complainant, brother of the deceased, implicating herself along with her co‑accused‑‑‑No incriminating recovery had been effected from the accused‑‑‑Confessional statement of accused could be used as a corroborative piece of evidence but could not be independently made a basis for conviction‑‑‑No direct evidence was available to connect the accused with the offence and her case was one of further inquiry‑‑‑Accused being a female was also entitled to the discretion of Court for the purpose of her admission to bail under proviso 1 of S.497, Cr.P.C.‑‑‑Accused was admitted to bail in circumstances.

1982 PCr. LJ 529 and PLJ 1999 Criminal Case (Lahore) 1 ref.

Ch. Faqir Muhammad for Petitioner.

Rao Atif Nawaz, State Counsel with Muhammad Latif Ahmad, S.‑I. Police Station Gulgahsht, Multan.

2005 P Cr. L J 1063

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Haji GUL MUHAMMAD‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.1045/B of 2004/BWP, decided on 21st September, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), Ss.382/109‑‑‑Pre‑arrest bail, grant of‑‑‑Ten days delay in lodging the F.I.R. was not explained‑‑­Accused was alleged to have taken away the stolen buffaloes of the complainant‑‑‑In five successive investigations the accused was found innocent by the police, but in the last investigation he was found involved only for the abetment of the commission of the offence‑‑‑No time and place for hatching up the conspiracy was mentioned by the witnesses and no evidence was collected by the last Investigating Officer in this regard‑‑‑Possibility of false implication of accused in the case could not be ruled out‑‑‑Pre‑arrest bail was granted to accused in circumstances.

Syed Jamil Anwar Shah for Petitioner.

Tanvir Ahmad Bhutta for the State.

Date of hearing: 21st September, 2004.

2005 P Cr. L J 1069

[Lahore]

Before Fazal‑e‑Miran Chauhan, J

MUHAMMAD IMRAN KHALID‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.25/B of 2005, decided on 14th March, 2005.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.362/201/34‑‑‑Bail, grant of‑‑­Accused had been continuously detained for a period of 14 years in jail and there was no possibility of completion of his trial in the near future‑‑­Delay in conclusion of the trial could not be attributed to the accused as was apparent from the record‑‑‑Such inordinate delay spreading over a period of 14 years had entitled the accused to bail‑‑‑Co‑accused had already been released on bail by High Court and the case of accused being identical to that of co‑accused, he was also entitled to the benefit of the same as per rule‑ of consistency‑‑‑Accused was admitted to bail in circumstances.

Abdul Aziz Khan Niazi for Petitioner.

Mohibul Hasnain, State Counsel with Muhammad Ashraf, S.‑I. Police Station New Multan.

2005 P Cr. L J 1086

[Lahore]

Before Khawaja Muhammad Sharif and Ch. Iftikhar Hussain, JJ

MUHAMMAD LATIF‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.559 and Murder Reference No.311 of 2000, decided on 19th October, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(d)‑‑‑Appreciation of evidence‑‑‑Sentence, reduction in‑‑‑Two eye‑witnesses had fully implicated accused with the charge against him‑‑­Said witnesses were unanimous that accused on the relevant date, time and place had fired two rifle shots at the deceased, who died instantaneously as a result thereof‑‑‑No inconsistency at all had been found between said witnesses on any major detail of incident‑-‑Witnesses were independent ones and their testimony had inspired confidence-‑­Accused, in circumstances had rightly not assailed his conviction and had only prayed for reduction in sentence‑‑‑Accused had himself admitted in his statement under S.342, Cr.P.C. that he fired two shots with rifle at the deceased‑‑‑Accused though had taken plea that deceased wanted to commit sodomy with him, but there was absolutely no substance available on record in support of said plea of accused‑‑‑Accused did not produce any evidence in proof of his said version‑‑‑Medical evidence had furnished complete supporting and corroboratory evidence to ocular testimony as testimony of doctor was in complete harmony with ocular account and there had not been the least contradiction in any manner between the two‑‑‑Story of motive furnished by prosecution witness, who was father of deceased, was also worthy of belief and there were further supporting circumstances to ocular testimony‑‑‑Said pieces of evidence of prosecution on record had established guilt of accused on the record beyond any shadow of doubt‑‑‑Accused, in circumstances was rightly convicted‑‑‑According to version of complainant himself accused' had acted under command of his father, that constituted mitigating circumstance in awarding lesser sentence to accused‑‑‑Sentence of death awarded to accused by Trial Court, was reduced to imprisonment for life.

Pervaiz Aslam Chaudhry for Appellant.

Ijaz Ahmad Bajwa for the State.

Date of hearing: 19th October, 2004.

2005 P Cr. L J 1095

[Lahore]

Before Ali Nawaz Chowhan and Rustam Ali Malik, JJ

ABDUL REHMAN and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.301‑J, 1237 of 2002 and Murder Reference No.72‑T of 2002 decided on 30th September, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b), 324, 392, 395, 411, 412, 224, 225, 353, 34, 148 & 149‑‑­Anti‑Terrorism Act (XXVII of 1997), S.7(a)(c)‑‑‑Appreciation of evidence‑‑‑Except accused who allegedly had passed on chillies and weapons to accused persons, rest of them were in the police van at time of occurrence as they were under‑trial prisoners‑‑‑No denial about occurrence and no enmity existed between injured prosecution witnesses, who were police officials, and accused, who were under‑trial prisoners‑‑­Possibility of substitution, which otherwise is a rare phenomenon, was excluded, in circumstances‑‑‑Principle that benefit of doubt must be given to accused, was not applicable to the case where, after considering entire evidence, Court was convinced beyond all reasonable doubt that prosecution case was acceptable‑‑‑Manner in which recoveries were effected from accused should not be a matter of surprise in view of peculiar circumstances of case involving desperate criminals‑‑­Prosecution story, in circumstances, appeared natural, truthful and plausible and ocular account had made it a plausible cause which could be believed‑‑‑Accused in police van were also witnesses of occurrence and were in a position to place on record facts advancing their case of different probabilities‑‑‑Prosecution having established its case fully, appeal filed by accused against Judgment of Trial Court was dismissed‑‑­Judgment of Trial Court was upheld and murder reference was returned in positive.

Gobald Motor Service Ltd. and another v. R.M.K. Veluswami and others AIR 1962 SC 1; Prabhoo's case AIR 1965 All. 417; Bharosa and others v. The State AIR 1941 All. 402 and Wali Muhammad v. The State PLD 1957 Lah. 261 ref.

Asghar Rokhri assisted by A. Rehman Iqbal Shah and Nazeer Ahmad for Appellants.

Malik Fawad, A.A.‑G. Tahir Gondal, A.A.‑G. and Miss Naureen Saleem for the State.

Dates of hearing: 22nd and 23rd September, 2004.

2005 P Cr. L J 1112

[Lahore]

Before Bashir A. Mujahid, J

Mst. RAZIA SULTANA‑‑‑Petitioner

Versus

SUPERINTENDENT OF POLICE and others‑‑‑Respondents

Writ Petition No. 11955 of 2001 decided on 13th October, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 420, 468 & 471‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Quashing of F.I.R.‑‑‑Petitioner had sought quashing of F.I.R. registered against her, by the person who had died, with the allegations that he being attorney of one, had sold land in dispute and petitioner forged Hiba Nama in respect of land in dispute in her favour in connivance of co‑accused and in that way petitioner had committed offence of fraud‑‑‑Civil litigation was pending between the parties with regard to property in dispute and it was to be determined by Civil Court that whether said Hiba Nama in favour of petitioner was genuine or not‑‑‑Case had been got registered under order of Sub­ Registrar, but said order was set aside by District Officer (Revenue)‑‑­Though ordinarily criminal and civil proceedings could proceed independently, but in the present case title between parties over property in dispute was to be determined by Civil Court and complainant himself knowing fully well that he could not get criminal case registered, moved Sub‑Registrar and obtained an order which had been set aside by higher authorities‑‑‑Allowing F.I.R. or proceedings on basis of order of Sub‑Registrar, was clear misuse of process of Court‑‑­High Court allowing petition, quashed F.I.R. along with proceedings against petitioner registered against her under Ss.420, 448 & 471, P.P.C.

Iftikhar Ahmad and another v. S.H.O. Police Station Kohsar, Islamabad and 2 others PLD 2001 Lah. 399 ref.

Ghulam Sabir and Ejaz Feroze for Petitioner.

Tanvir Ahmad Shami for Respondent No. 1.

Qazi Muhammad Arshad Bhatti for Respondent No.2.

2005 P Cr. L J 1119

[Lahore]

Before Muhammad Sayeed Akhtar, J

Mst. ZAREENA BIBI‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Writ Petition No.7784 of 2004, decided on 8th June, 2004.

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.‑‑‑Lady petitioner appeared in person and stated that she had contracted marriage with the male petitioner of her own free‑will and that she was not abducted by anyone or forced or seduced to illicit intercourse and that case under S.11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 against her was false‑‑­Nikahnama had been placed on record‑‑‑Lady petitioner appearing to be sui juris and having contracted marriage of her own free volition, F.I.R. registered against her was quashed, in circumstances.

Zafar Iqbal Chauhan for Petitioner.

Fazal‑e‑Miran Chauhan, Addl. A.‑G. for the State.

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2005 P Cr. L J 1160

[Lahore]

Before Maulvi Anwarul Haq, J

ABDUL SHAKOOR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.87/T.A. of 2004, heard on 15th December, 2004.

Criminal Procedure Code (V of 1898)---

----S. 526---Penal Code (XLV of 1860); Ss.302/337-A(i)/337-A(ii)/ 337-L(2)/148/149---Transfer of case---Main case constituting in cross-version of the F.I.R. was pending in the Sessions Court whereas the F.I.R. case itself was pending in the Court of Judicial Magistrate---Was not only appropriate but necessary that both the cases should be tried and decided by the same Court to avoid conflicting judgments---Even otherwise, the rule of prudence required the trial of cross-cases together by the same Court unless by such procedure any party was likely to be prejudiced---Case , pending before the Judicial Magistrate was consequently transferred to the said Sessions Court---Transfer application was allowed accordingly.

Humayun and others v. The State 1986 PCr.LJ 989 ref.

M. Khalid Farooq for Petitioner.

M. Qasim, A.A.-G. for the State.

Date of hearing: 15th December, 2004.

2005 P Cr. L J 1162

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Mst. AMNA BIBI---Petitioner

Versus

THE STATE and 3 others---Respondents

Writ Petition No.5153/Q of 2004, heard on 3rd November, 2004.

Penal Code (XLV of 1860)---

----S. 338-C---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Accused in the plaint of her suit for dissolution of marriage filed on 30-6-2004 had specifically alleged that she had been turned out of the house by the complainant about four months earlier and no issue was born out of their wed-lock, whereas complainant in the F.I.R. had alleged that two months earlier the accused had left his house which would come near about 9-7-2004 and at that time his version that she was conceiving pregnancy of eight months was proved to be false---Impugned F.I.R., thus, had been lodged by the complainant with mala fide intention and ulterior motive to restrain the accused petitioner from the prosecution of her suit for dissolution of marriage already filed against him---No offence of "Isqat-i-Janin" was prima facie made out and the allegation levelled in the F.I.R. was groundless---Further proceedings in the F.I.R. would be abuse of process of law which could not be allowed to continue---F.I.R. was consequently quashed and the Constitutional petition was accepted accordingly.

Malik Naseer Ahmad Thaheem for Petitioner.

Muhammad Bilal Masood for Respondent No.4.

M.R. Khalid Malik, Addl. A.-G. and Manzoor Ahmad A.S.-I with record for the State.

Date of hearing: 3rd November, 2004.

2005 P Cr. L J 1166

[Lahore]

Before Muhammad Nawaz Bhatti, J

MUHAMMAD SHARIF---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.347/B of 2005, decided on 22nd March, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/148/149---Bail, grant of---None of the accused involved in the case was identified by the prosecution witnesses---Accused had been involved only due to suspicion---Even the injured witness, who had filed a private complaint regarding the same occurrence, had not named the accused therein---Such fact itself was a sound ground to make the case of accused one of further inquiry---Accused was allowed bail in circumstances.

Javaid Ahmad Khan for Petitioner.

Rana Khalid Mehmood for the State.

Javed Ashraf, S.-I. with record.

2005 P Cr. L J 1167

[Lahore]

Before Khawaja Muhammad Sharif and Mian Muhammad Najam-uz-Zaman, JJ

ABDUL GHAFOOR and 7 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.26 of 2001, heard on 14th April, 2005.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 302/109---Appreciation of evidence---Both the main accused were not named in the F.I.R. by the complainant, but they were involved in the case later on, on the basis of the statement of the son of the deceased made under S.161, Cr.P.C.---Inquest reports prepared by the Investigating Officer at the spot were silent about the involvement of the accused---Had the said son of the deceased, who was an eye-witness of the occurrence, been present at the spot, he would have been made a recovery witness, but his name was not mentioned in the recovery memos. about the recovery from the spot---Fire-arms recovered from the accused were not shown on record to be the same weapons which were used during the occurrence---Motive for the occurrence was not attributable to the accused---Name of the prosecution witness who had deposed about the conspiracy hatched for the commission of the offence by the other accused, was not mentioned in the F.I.R. and he had already been disbelieved by the Trial Court while acquitting co-accused---Sole statement of the said prosecution witness, in the absence of any corroborative evidence, could not be relied upon---Accused were acquitted in circumstances.

Shahid Zaheer Syed and Mirza Abdullah Baig for Appellants.

Ch. Imtiaz Ahmad for the State.

Date of hearing; 14th April, 2005.

2005 P Cr. L J 1181

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD USMAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3249/B of 2005, decided on 31st May, 2005.

Criminal Procedure Code (V of 1898)---

---Ss. 498 & 345---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Penal Code (XLV of 1860), S.380---Pre-arrest bail, refusal of---Allegation of complainant was that accused, after scaling outer wall of the house of complainant, had committed Zina with her daughter; caused injuries to her and her daughter (victim) and also forcibly took away jewellary pieces of the victim---Accused had contended that the parties had compromised and the complainant also endorsed the contention of the accused---Validity---Held, compromise in such-like case was not permitted under S.345, Cr.P.C. as Offence of Zina was an offence not against the individual only but it was also against the good conscience of the society and said offence had not been included in. the list of offences which were compoundable---Allegation in the F.I.R. was of very serious nature and the accused had not urged grounds which were normally considered for granting extraordinary concession of pre-arrest bail except that complainant and her daughter had compromised with the accused---High Court, in view of the seriousness of the offence declined the bail to accused.

Ch. Shahid Pervaiz Kahloon for Petitioner.

Saleem Shad for the State.

Dilawar Hussain, A.S.-I.

2005 P Cr. L J 1187

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD ISMAIL TARIQ---Petitioner

Versus

THE STATE and 3 others---Respondents

Writ Petition No.4906 of 2005, decided on 9th May, 2005.

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

----Ss. 169 & 173---Police opinion---Value---Opinion of a Police Officer/Investigating Officer has its own value and importance, particularly when it is supported by sufficient and unbiased material---Police Officer/Investigating Officer forms opinion after inspecting scene of occurrence immediately after the occurrence and recording statements of persons who had seen the occurrence---Such police officer also gets opportunity to examine another circumstantial evidence and to effect recoveries etc.---If a police officer/Investigating Officer performs his functions honestly and efficiently, he forms his opinion on the basis of material which is not available to any other person---Despite the fact that the opinion of such police officer is not binding on the Court, still it has a lot of relevancy and becomes a basis for important decision---Similarly, when a police officer/Investigating Officer recommends cancellation of an F.I.R., he reaches to this conclusion after a thorough and complete investigation---Cancellation report in the absence of any mala fide, bias etc. should, therefore, be given due consideration and should only be rejected when there are reasons to believe that the cancellation report has been prepared under any extraneous influence or on the basis of bias, prejudice etc.

Altaf Hussain v. The State PLD 2002 Lah. 216 ref.

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

----Ss. 380 & 457-Criminal Procedure Code (V of 1898), S.169---Constitution of Pakistan (1973), Art.199---Constitutional petition---Magistrate disagreeing with police cancellation report---Validity---Magistrate had not referred to any material which he considered sufficient against the accused---Cancellation report contained sufficient and convincing material---Magistrate should have pointed out the material on the basis of which he had disagreed and rejected the opinion of the concerned police/Investigating Officer---Magistrate had passed a brief order without, giving his reasons and without making any categorical reference to the material which he considered sufficient---Impugned order rejecting the cancellation report was set aside in circumstances and the matter was remanded to the Magistrate for reconsideration and de novo decision in accordance with law.

Altaf Hussain v. The State PLD 2002 Lah. 216 ref.

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

----S. 169---Police Rules, 1934, R.24.7---Police Order (22 of 2002), Preamble---Cancellation of F.I.R.---Police Rules, 1934, have a force of law and have not been replaced despite enforcement of Police Order, 2002---Cancellation of an F.I.R. is not provided in the Code of Criminal Procedure, but it has been so provided in Rule 24.7 of Police Rules, 1934---Purpose of Rule 24.7 of Police Rules, 1934, is to empower a Magistrate to cancel an F.I.R. when it is so recommended by the concerned police authorities---F.I.R. should normally be cancelled when it is so recommended unless strong reasons to be recorded exist for refusal to cancel the same.

Arshad Nazir Mirza for Petitoner.

Ch. Khurshid Anwar Bhinder, Addl. A.-G. for the State.

2005 P Cr. L J 1193

[Lahore]

Before Syed Shabbar Raza Rizvi, J

AMANULLAH---Petitioner

Versus

PROVINCIAL POLICE OFFICER ((IGP) PUNJAB, LAHORE and 4 others---Respondents

Writ Petition No.2766 of 2005, heard on 13th April, 2005.

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

----Ss. 452/337-A(ii)/148/149---Police Order (22 of 2002), Art.18(6)--Constitution of Pakistan (1973), Art.199---Constitutional petition---Change of investigation---Five police officers including the S.D.P.O. and S.P. (Investigation) had declared the accused innocent---Investigation by the S.P. (Investigation), according to the Additional Inspector-General of Police, Head of Investigation Punjab, was improper and uncalled for and he did not recognize the same and. consequently considered another investigation ordered by him as first change of investigation---If the order of taking over investigation by SP (Investigation) was improper or uncalled for some action had to be taken against him and if he had taken cognizance of case improperly or illegally, the accused could not be penalized for that---Police officials could not be allowed to be benefited from their own illegality and mistake---If the complainant was dissatisfied with the aforesaid five investigations he could be compensated by investigation ordered by the Additional Inspector General of Police, Head of Investigation Punjab, the same treatment should also be awarded to the accused as being dissatisfied by the last investigation ordered by the said Additional Inspector-General of Police, which would be appropriate and consistent with Article 18(6) of the Police Order, 2002---Justification submitted by the Additional Inspector General of Police, Head of Investigation Punjab, for passing an order for the last investigation was not satisfactory and the Additional Advocate-General, Punjab, had also very fairly shown his dissatisfaction on the said report---Provincial Police Officer (IGP) Punjab, was therefore directed to order for second change of investigation in the interest of justice---Constitutional petition was allowed accordingly.

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

----S. 156---Police Order [22 of 2002], Art.18(6)---Repeated investigations---Feasibility---Duty of Courts---Guidelines stated---Too many investigations are deprecated by the Superior Courts, that was the idea behind the latest Legislation, but the desired objective has not been achieved for reason of too much interference from different quarters which practice should be discouraged---Investigation should only be intervened to save fundamental and legal rights of the parties or where mala fide and excess of jurisdiction is patent on the record---High Court may also interfere in matters of investigation under the Constitutional jurisdiction where a statutory functionary is found exercising his power not for the purpose for which it was conferred or wherefrom bare reading of F.I.R. it becomes obvious that the facts mentioned therein did not constitute an offence.

Malik Khizar Hayat Khan for Petitioner.

Shahid Nazir Khan along with Khursheed Anwar Bhinder, Addl. A.-G. for the State.

Aslam Khan, A.S.I.

Date of hearing: 13th April, 2005.

2005 P Cr. L J 1204

[Lahore]

Before Abdul Shakoor Paracha, J

ZAFAR AWAN, ADVOCATE---Petitioner

Versus

THE DISTRICT/SESSIONS JUDGE, CHAKWAL and another---Respondents

Writ Petition No.3173 and Criminal Revision No.206 of 2003, heard on 15th March, 2005.

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

---Ss. 9 & 526---Court of Session---Regular place of sitting not to be altered---Sessions Court or High Court cannot alter the regular place of sitting of any Sessions Court from the place directed by the Government under S.9, Cr.P.C., except by invoking jurisdiction under. S.526, Cr.P.C. by the High Court.

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

----S. 9(1)---Court of Session---In a Sessions Division there is only one Court by the name of "Court of Session" which is presided over by the Sessions Judge---Additional Sessions Judges are appointed to exercise jurisdiction in the Court of Session while deciding the Sessions cases.

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

---Ss. 302/324/148/149---Criminal Procedure Code (V of 1898), Ss.9(1) & 190(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Transfer of case by Sessions Judge from one Sessions Division to another Sessions Division---Validity---Talagang had been created as Sessions Division by the Government of Punjab vide Notification dated 8th November, 1995, issued under S.9(1), Cr.P.C. and at that time an Additional District and Sessions Judge was appointed to be the Judge in Session at Talagang---Magistrate as such had to forward the case to the Sessions Judge at Talagang and not to the Sessions Judge, District Headquarters at Chakwal---Challan had not been legally sent up by the Magistrate on the mandate of S.190(2), Cr.P.C. to the Sessions Division, Talagang---Sessions Judge Chakwal, therefore, had no power to withdraw the case from the file of Additional Sessions Judge, Talgang and transfer the ,same to the file of Additional Sessions Judge Chakwal for disposal---Impugned order of the Sessions Judge was consequently declared to be without lawful authority and was set aside accordingly---Magistrate was directed to send the Challan on the mandate of 5.190, Cr.P.C. to the Court of the Additional Sessions Judge, Talagang, created under S.9(1), Cr.P.C.

Petitioner in person.

Tanvir Iqbal, A.A.-G. for Respondents.

Date of hearing: 15th March, 2005.

2005 P Cr. L J 1219

[Lahore]

Before Muhammad Muzammal Khan and Syed Shabbar Raza Rizvi, JJ

PERVAIZ AKHTAR and 3 others---Appellants

Versus

THE STATE through Circle Officer Anti-Corruption Department T.T. Singh---Respondent

Intra-Court Appeal No.79 in Writ Petition No.190 of 2005, decided on 13th April, 2005.

(a) Law Reforms Ordinance (XII of 1972)-----

----S. 3---Intra-Court appeal---Proceedings include F.I.R.---Word "proceedings" mentioned in proviso (1) of S.3 of Law Reforms Ordinance, 1972, includes the F.I.R.

Nawazul Haq Chowhan v. The State and others 2003 SCMR 1597 rel.

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

---Ss. 409/420---Prevention of Corruption Act (II of 1947), S.5(2)---Law Reforms Ordinance (XII of 1972), S.3---Constitution of Pakistan (1973), Art.189---Intra-Court Appeal---Maintainability---Quashing of F.I.R.---Single Bench of High Court in a writ petition had refused quashing of the F.I.R. registered against the accused, by means of the impugned order---Word "proceedings" mentioned in proviso (1) of S.3 of Law Reforms Ordinance, 1972, included the F.I.R.---Whether the Single Bench of High Court had allowed registration of a case or refused the same was not relevant---Relevant point was that the controversy related to F.I.R. and in such circumstances the Intra-Court Appeal was not maintainable---Intra-Court appeal was dismissed accordingly.

Nawazul Haq Chowhan v. The State and others 2003 SCMR 1597; Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344; Settlement Commissioner (L) and others v. Mauj Din and others 1989 SCMR 1351 and Iftikhar Hussain and others v. Government of Pakistan and others PLD 1996 Lah. 82 ref.

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

----Art. 189---Decision of Supreme Court to the extent that it decided a question of law, was binding upon all the others Courts.

Iftikhar Hussain and others v. Government of Pakistan and others PLD 1996 Lah. 82 ref.

Sher Afghan Asadi for Appellants.

2005 P Cr. L J 1242

[Lahore]

Before Khawaja Muhammad Sharif, J

MUMTAZ AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.2094 of 2003 and Criminal Revision No.52 of 2004, heard on 25th January, 2005.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Prosecution case was an exaggerated one---Date of the statement of the prosecution witness recorded by the police had been tampered with to fit in the prosecution story---Eye-witnesses had failed to establish their presence at the place of occurrence at the relevant time---Statements of the said witnesses had been recorded by the police after either four days or one month and four days of the occurrence, but during such period they neither informed the complainant nor the police about the same---Eye-witnesses would have immediately done so if they had actually seen the occurrence---Case against accused was highly doubtful and he was acquitted in circumstances.

Rana Muhammad Anwar for Appellant.

Nasir Khan Bannusai for the State.

Shahid Azeem for the Complainant.

Date of hearing: 25th January, 2005.

2005 P Cr. L J 1265

[Lahore]

Before Sardar Muhammad Aslam, J

Messrs ASKARI LEASING LIMITED through Branch Manager---Petitioner

Versus

Rana MUHAMMAD ASIF and 2 others---Respondents

Criminal Miscellaneous No.886/CB of 2005, decided on 20th April, 2005.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.489-F & 406---Pre-arrest bail, cancellation of---Offence under S.489-F, P.P.C. was non-bailable---No allegation of false implication of accused at the behest of police or the complainant for ulterior motives to disgrace him, was ever made---Accused had been granted pre-arrest bail in violation of the law laid down by the superior Courts for such relief---Pre-arrest bail allowed to accused was cancelled in circumstances.

Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82 rel.

Zia-ul-Hassan v. The State PLD 1984 SC 192; Muhammad Mukhtiar v. Sajjad Hussain and 2 others 2004 YLR 2227; Rana Ehsan v. The State 2004 YLR 2675; Muhammad Akhtar v. The State 1984 PCr.LJ 2340; Arshad Mahmood v. The State 1985 PCr.LJ 2048; Shafqat Ali v. The State 1987 PCr.LJ 971; Shakil Hussain Rashi v. The State 1992 MLD 99 and Hafiz Ahmad Khan v. The State 1988 PCr.LJ 338 ref.

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

----S. 497(1)---Prohibition for grant of bail---Offence providing an alternative sentence of fine only or imprisonment exceeding 10 years' R.I. will fall within the ambit of prohibition contained in S.497(1), Cr.P.C.

Hafiz Ahmad Khan v. The State 1988 PCr.LJ 338 fol.

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

----S. 498---Pre-arrest bail---Essentials for grant of---Showing arrest for ulterior motives, prosecution motivated so as to cause irreparable injury to reputation and liberty and motivation of police on political consideration, are the requisite essentials for grant of bail before arrest.

Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82 ref.

Sardar Mashkoor Ahmad for Petitioner.

Raja Akhtar Nawaz for the State.

Malik Muhammad Jamil Awan for Respondent No.1.

2005 P Cr. L J 1273

[Lahore]

Before Khawaja Muhammad Sharif and Tanvir Bashir Ansari, JJ

Haji ALLAH BAKHSH---Appellant

Versus

INTISAR AHMAD and others---Respondents

Criminal Appeal No.556 of 1998, heard on 11th January, 2005.

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

----S. 302(b)/34---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal---Occurrence had taker- place in broad-daylight and was witnessed by the father of the deceased and an independent witness--Complainant had no enmity with the accused and his testimony could not be discarded on the ground of being father of the deceased---Ocular account of occurrence was corroborated by medical evidence---Defence version regarding the case being one of free fight was belied by the fact that not even a scratch was received by the accused party in the incident---Prosecution had proved its case against both the accused without a shadow of doubt---Impugned judgment acquitting the accused was consequently set aside and the accused' were convicted under S.302(b)/34, P.P.C.---Accused had faced the agony of trial and pendency of appeal for more than ten years and were also under the legitimate expectancy of life after their acquittal by a Court of competent jurisdiction, which was a mitigating circumstance in their favour---Accused were sentenced to imprisonment for life each in circumstances with the direction to pay a compensation of Rs.1,00,000 to the legal heirs of the deceased---Appeal against acquittal was allowed accordingly.

Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 272 distinguished.

Bundoo v. Mukhtar Ahmad and another PLD 2004 SC 379; Dildar Hussain v. Muhammad Afzaal alias Chala and 3 others PLD 2004 SC 663 and Waris Khan v. The State 2001 SCMR 387 ref.

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

---S. 302(b)/34---Appreciation of evidence---Medical evidence---Corroboration---Effect---When the ocular account is corroborated by the medical evidence, then the case is proved against the accused.

Bundoo v. Mukhtar Ahmad and another PLD 2004 SC 379 rel.

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

----S. 302(b)/34---Appreciation of evidence---Related witness, credibility of---Principles---Relationship of a witness either with the deceased or the complainant is not sufficient to discard his testimony unless he is proved to have an ulterior motive or any enmity for false implication of accused in the commission of the offence.

Dildar Hussain v. Muhammad Afzaal alias Chala and 3 others PLD 2004 SC 663 ref.

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

----S. 302(b)/34---Appreciation of evidence---Motive---Principles---Existence of or non-existence of motive, its proving or non-proving by the prosecution, is not fatal to the prosecution case---Conviction can be passed if the case is proved through ocular account and the medical evidence.

Waris Khan v. The State 2001 SCMR 387 ref.

Sardar Muhammad Latif Khan Khosa for Appellant.

Syed Ehsan Qadir Shan for Respondents Nos.8 and 9.

Date of hearing: 11th January, 2005.

2005 P Cr. L J 1289

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

MUHAMMAD RAMZAN and another---Petitioners

Versus

MUHAMMAD MUKHTIAR and another---Respondents

Criminal Miscellaneous No.616/Q of 2002/BWP, decided on 8th July, 2002.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 249-A---Penal Code (XLV of 1860), Ss.337-A(ii), 452, 506-B, 109, 148 & 149---Quashing of complaint---Second petition for---Earlier petition filed under S.561-A, Cr.P.C. for quashing of summoning order passed by Magistrate against petitioner in a, complaint filed by respondent under Ss. 506-B, 452, 148, 149, 337-A(ii) & 109, P.P.C. was dismissed and thereafter application filed under S.249-A, Cr.P.C. and later on revision was also dismissed--Petitioner had started second round for quashing of complaint by filing an application under S.249-A, Cr.P.C. before Trial Court---No fresh ground having been shown to have arisen for filing second application under S.561-A, Cr.P.C. same was also dismissed.

M. Abdul Rasheed Rashid for Petitioners.

2005 P Cr. L J 1290

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD AKRAM alias KALA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.10 of 2005, heard on 15th February, 2005.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 201---Qanun-e-Shahadat (10 of 1984), Art.40---Appreciation of evidence---F.I.R. was registered 10/11 months after the occurrence---Case was of an unwitnessed occurrence and was based on the evidence of last seen and extra-judicial confession---Names of the witnesses of extra-judicial confession were not even mentioned in the delayed F.I.R.---Evidence of last-seen was furnished by a relative of the complainant which was a weak type of evidence unless corroboration by unimpeachable sources---Pointation of the place of recovery of the dead body by the accused in police custody was inadmissible under Art.40 of the Qanun-e-Shahadat, 1984---Two accused had already been acquitted by the Trial Court on the same set of evidence---Statements of the witnesses of extra-judicial confession who were closely related to the complainant could not be safely relied upon without corroboration through some independent evidence---Accused was acquitted in circumstances.

Mian Mehmood Rashid assisted by Abdul Rashid Hijazi for Appellant.

Syed Faisal Raza Bokhari for the State.

Date of hearing: 15th February, 2005.

2005 P Cr. L J 1312

[Lahore]

Before Syed Shabbar Raza Rizvi, J

Mst. ZEENAT BIBI and another---Petitioners

Versus

THE STATE and 2 others---Respondents

Writ Petition No.2548 of 2005, decided on 6th May, 2005.

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.---Petitioners had sought quashing of F.I.R. registered against them contending that petitioner was sui juris and that she had married with her free consent and that she had not been abducted by. anyone---Claim of petitioners was that she had contracted marriage with the other petitioner for which she was legally competent being a pubert girl---Contention of complainant was that girl being only 12 years and 7 months old, was not legally competent to execute Nikah with the boy---Complainant stated that girl being neither major nor. sui juris her Nikah was invalid and was not recognized by law---Complainant had also asserted that F.I.R. had rightly been registered and same could not be quashed under Constitutional jurisdiction---Petitioners (girl and boy) had also contended that a pubert woman was competent to contract a valid marriage and it would be deemed a marriage of a sui juris girl---Petitioners had further submitted that Islamic Law having recognized said fact, girl being pubert had contracted a valid marriage even at the age of 12 years and 7 months-Complainant had submitted that under Offences of Zina (Enforcement of Hudood) Ordinance, 1979, sixteen years was a minimum age to attain majority---Validity---Held, according to known books on the subject, puberty would start with menstruation---High Court declared the marriage in question to be valid and observed that petitioners could not be deemed as accused persons of committing offence under S.11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Allowing the Constitutional petition, F.I.R. recorded against accused/petitioners under S.11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was quashed declaring the same to be unlawful and of no legal effect.

Abdul Ghaffar v. Ishtiaq Ahmad Khan 1997 PCr.LJ 1150; Mauj Ali v. Syed Safdar Hussain Shah 1970 SCMR 437; Hafiz Abdul Waheed v. 'Mrs. Asma Jehangir PLD 2004 SC 219; Muhammad Imtiaz and another v. The State PLD 1981 FSC 308; Arif Hussain and Azra Perveen v. The State PLD 1982 FSC 42; Muhammad Ramzan v. The State PLD 1984 FSC 93 and Muhammad Yaqoob and another v. The State and 3 others 1985 PCr.LJ 1064 ref.

Ch. Azeem Sarwar for Petitioners.

Ihsan Qadir Sial for Respondent No.3.

Ch. Khurshid Anwar Bhinder, Addl. A.-G. for the State.

M. Riaz, A.S.-I.

2005 P Cr. L J 1321

[Lahore]

Before Khawaja Muhammad Sharif and Sh. Javaid Sarfraz, JJ

MUHAMMAD ASHRAF and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1756 of 2000, Murder Reference No.41 of 2001 and Criminal Revision No.915 of 2000, heard on 13th December, 2004.

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

----Ss. 302/324/148/149---Appreciation of evidence---All three accused persons were attributed specific injuries and injury attributed to one of them, proved to be fatal---Duration between injury and medical examination as given by the Doctor had tallied with the time of occurrence and duration between injuries and death of deceased and between death and post-mortem examination of dead body of deceased as given by Doctor who conducted post-mortem examination of deceased also tallied with time of occurrence--No direct enmity existed between accused and complainant party---Star witness in the case was injured in occurrence and injuries suffered by him on his. abdomen could not be termed as self-suffered---Number of injuries on the person of deceased had shown that it was job of more than one person---Ocular account was corroborated by medical evidence---Injured person, who was a student of 7th class, had no direct enmity with the accused persons---No question of false implication of accused existed in circumstances---Statement of said injured was recorded in the hospital on the next morning and he had fully implicated accused with their specific role and had fully supported prosecution case to bring home guilt to accused---Trial Court after having applied independent judicial mind and having sifted grain from the chaff, had considered that no mitigating circumstance existed in favour of any of three accused---Convictions and sentences awarded to accused by the Trial Court, were maintained in their totality---Sentence of death awarded to main accused was confirmed and murder reference was answered in affirmative.

PLD 1959 SC 109; 1984 SCMR 1069; 1973 PCr.LJ 896 and 2003 SCMR 1230 ref.

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

----Ss. 302/324/148/149-Appreciation of evidence---Duty of Court---Principle in cases of murder was to sift grain from the chaff and the Court should not go into technicalities---Approach of the Court should always be dynamic.

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

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

---Ss. 302/324/148/149---Motive---Weakness or absence of motive---When eye-witness account was worthy of credence, unimpeachable, confidence inspiring and accusation was established beyond shadow of doubt, weakness of motive or its absence or when alleged, but not proved, would hardly make any difference in awarding death sentence and would not constitute mitigating circumstances---Weakness and insufficiency of motive or absence of motive in murder cases, could not be considered as a mitigating circumstances for awarding lesser punishment.

Waris Khan v. The State 2001 SCMR 387 and Saeed and 2 others v. The State 2003 SCMR 747 ref.

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

----Ss. 302/324/148/149---Appreciation of evidence---Courts had to weigh the quality of evidence and not the quantity---Even in a murder case conviction could be based on the testimony of a single witness, if Court was satisfied that he was reliable.

Allah Bakhsh v. Shamji and others PLD 1980 SC 225 ref.

M.A. Zafar for Appellants.

Abdul Qayyum Anjum for the State.

Muhammad Asghar Khan Rokhari for the Complainant.

Date of hearing: 13th December, 2004.

2005 P Cr. L J 1335

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD HAFEEZ alias BABU---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1691/B of 2005, decided on 6th May, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.302, 324 & 34---Pre-arrest bail, refusal of---Prima facie accused had not been able to substantiate his claim that he had not been named in the F.I.R.---Serious allegations were levelled against accused and his co-accused---Even if plea of alibi of accused was accepted, his involvement as an abettor or a conspirator could not, right away, be ruled out---Case had been registered as far back as on 2-11-2004 and accused had so far cleverly been able to elude the process of law---Plea of alibi of accused could not at such stage be gone into as it would amount to entering into realm of deeper appreciation of material available on record---Extending extraordinary relief of pre-arrest bail would amount to smothering the, investigation which was the statutory right of police.

Iqbalur Rehman v. The State PLD 1974 SC 83; Waqar-ul-Haq v. The State 1985 SCMR 974; Bahadur v. Muhammad Latif and others 1987 SCMR 788 and Jan Muhammad v. Abdul Latif and 3 others 2003 MLD 72 ref.

Dr. Khalid Ranjha for Petitioner.

Abdul Sattar Chughtai for the Complainant.

M. Saleem Shad for the State with Abbas Ali, S.-I.

2005 P Cr. L J 1342

[Lahore]

Before Khawaja Muhammad Sharif and Mian Muhammad Najam-uz-Zaman, JJ

MUHAMMAD IQBAL---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.238, 357, 359, 305 of 2000 and Murder Reference No.124 of 2000, heard on 21st February, 2004.

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

---S. 302(b)/34---Appreciation of evidence---F.I.R. was registered after due deliberation and consultation---Previous enmity existed between the parties---Motive was not proved against the accused---No crime-empty secured from the spot had matched with the gun recovered at the behest of accused---Toka ascribed to the other accused in the F.I.R. was not recovered from him---Ocular testimony was not corroborated by the medical evidence---Presence of eye-witnesses at the scene of occurrence was not natural---State Counsel did not defend the impugned judgment---Accused were acquitted on benefit of doubt in circumstances.

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

----S. 302(b)/34---Criminal Procedure Code (V of 1898), S.417(2-A)---Appeal against acquittal---Medical evidence had contradicted the ocular account of occurrence---Both the accused had been found innocent by the police during the course of successive investigations---Appeal against acquittal of accused by Trial Court was dismissed in circumstances.

Sardar Muhammad Latif Khosa with M. Siddique Bajwa for Appellant.

Syed Fazal Hussain Jafree for the State.

Malik Amjad Pervaiz for the Complainant.

Date of hearing: 21st February, 2004.

2005 P Cr. L J 1368

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD AZAM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1312 of 2003, heard on 31st January, 2005.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Accused was not named in the F.I.R.---Description of two accused was given in the F.I.R. but no identification parade was held in the case---Complainant in his statement before the Trial Court had named three persons as accused---No recovery was effected from the accused---Medical evidence was in conflict with ocular testimony---Benefit of doubt was extended to accused in circumstances and he was acquitted accordingly.

Ch. Lehrasap Khan Gondal for Appellant.

Asif Hussain Sheikh for the State.

Date of hearing; 31st January, 2005.

2005 P Cr. L J 1378

[Lahore]

Before Khawaja Muhammad Sharif, J

TANVIR AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1814 of 2001, heard on 22nd December, 2004.

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

----S. 302(b)---Appreciation of evidence---Eye-witnesses were closely related to the deceased---Ocular testimony was not corroborated by medical evidence---Accused had been found innocent in successive investigations---Neither any weapon of offence was recovered from the accused, nor any crime-empty of the rifle allegedly used by him, was recovered from the spot to connect him with the commission of the offence---Motive for the occurrence was not proved against the accused--Accused was acquitted in circumstances.

Ashiq Hussain v. The State 1993 SCMR 417; Abdul Subhan v. Raheem Bakhsh and another PLD 1994 SC 178 and Javaid v. The State PLD 1994 SC 679 ref.

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

----S. 302(b)---Burden of proof---Prosecution has to prove its case against the accused beyond any shadow of doubt and it cannot derive benefit from the defence case.

Ashiq Hussain v. The State 1993 SCMR 417; Abdul Subhan v. Raheem Bakhsh and another PLD 1994 SC 178 and Javaid v. The State PLD 1994 SC 679 ref.

Shamim Abbas Bokhari for Appellant.

Muhammad Suleman for the State.

Ch. Ali Muhammad for the Complainant.

Date of hearing: 22nd December, 2004.

2005 P Cr. L J 1403

[Lahore]

Before Syed Shabbar Raza Rizvi, J

ABID HUSSAIN---Petitioner

Versus

IKRAM-UL-HAQ CHAUDHRY and another---Respondents

Writ Petition No.7534 of 2005, decided on 9th May, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 167 & 169---Penal Code (XLV of 1860), S.380---Constitution of Pakistan (1973), Art.199---Constitutional petition---Refusal to grant remand and discharge of accused from the F.I.R.---If the Magistrate had no jurisdiction to try accused produced before him for remand, he could authorize the detention, but if he considered the detention unnecessary, he could order the accused to be forwarded to a Magistrate having such jurisdiction---Impugned order whereby remand was refused and accused was discharged from F.I.R., was passed by Duty Magistrate on Sunday---Said Magistrate did not have the jurisdiction to try the accused---If said Magistrate thought that further detention was unnecessary, he could have forwarded the accused to the Magistrate having jurisdiction to try him---Impugned order had been passed by the Magistrate without jurisdiction and same was void ab initio---Provisions of S.167, Cr.P.C. did not contemplate a discharge which was provided only under S.169, Cr.P.C.---Magistrate being not competent to pass order of discharge of accused while exercising powers under S.167, Cr.P.C., High Court accepting Constitutional petition set aside order being illegal, unjustified and untenable.

Imran Sattar v. Judicial Magistrate 2001 PCr. Review 498 ref.

Rana Nauman Khalid for Petitioner.

Ch. Khurshid Anwar Bhinder, Addl. A.-G.

2005 P Cr. L J 1425

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD MAHI and another---Petitioners

Versus

MANZOOR and 2 others---Respondents

Criminal Revision No.387 and Criminal Appeal No.1 of 2003, decided on 6th April, 2005.

Penal Code (XLV of 1860)---

----Ss. 302(c), 324 & 34---Appreciation of evidence---Night time occurrence which allegedly was witnessed in the light of torch---Torch though was mentioned in FIR., but same was never taken into possession during the course of investigation---Blood-stained earth was also not taken into possession during investigation---Accused were never arrested by police during the course of investigation because from the very beginning of investigation accused were never involved in the case---In five successive investigations conducted by different Investigating Officers accused were found to be innocent---Even during course of two investigations conducted later on, one under orders of D.I.-G. and other under direction of High Court, accused were found not involved in the case---Deputy Superintendent of Police as Court witness remained consistent on his point that he found accused persons to be innocent during his investigation---Nothing incriminating, like the weapon of offence, was recovered from any of the two accused---No doubt one of the injured prosecution witnesses appeared, but mere presence of injuries on the person of prosecution witness was not sufficient to declare him a truthful witness if same was not believed from other circumstances available on record---On same set of evidence five accused persons were acquitted from the case and neither the State nor complainant preferred appeal against their acquittal---In view of the enmity between parties over a murder in an earlier case sole statements of the closely related witnesses could not be relied upon---Both eye-witnesses of case, were real sons of deceased and their statements remained uncorroborated through some independent evidence and thus, same could not be accredited with truth---Prosecution, in circumstances, had failed to prove its case against accused beyond a shadow of doubt to sustain conviction of accused---Prosecution case was full of doubts and on basis of such a shaking evidence, which could not be believed at all, conviction and sentence awarded to accused could not be maintained---Impugned judgment of Trial Court, which otherwise was wrongly passed under S.302(c), P.P.C., was set aside and accused were acquitted from the case and were set at liberty.

2003 SCMR 528; 2003 PCr.LJ 1186; PLJ 1988 SC 543 and Iftikhar Hussain and another v. State 2004 SCMR 1185 ref.

Masood Mirza assisted by Bashir Abbas Khan for Appellants.

Nazir Ahmad Kamboh for the Complainant.

Noor Muhammad Qaiser Karyar for the State.

Date of hearing: 6th April, 2005.

2005 P Cr. L J 1435

[Lahore]

Before Muhammad Muzammal Khan and Syed Shabbar Raza Rizvi, JJ

AMAN ULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Miscellaneous No.254/M of 2005 in Criminal Appeal No.1320 of 2004, heard on 13th June, 2005.

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

----Ss. 6, 7, 9, 12, 17, 28, 30, 31, 32 & 34---Scope and applicability of Ss.6, 7, 9, 12, 28, 30, 31, 32 & 34, Cr.P.C.---Surveyed.

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

----S. 408(b) [as amended by Law Reforms Ordinance (XII of 1972)]---If a person is convicted by any Magistrate, including Magistrate Section 30 and if the term of the sentence exceeds 4 years, appeal shall lie to the Court of the Session---If a sentence is passed by an Assistant Sessions Judge exceeding 7 years, appeal against such order cannot be filed before a Sessions Judge since they were part of a one Court---High Court, however observed that a lot of confusion would have been avoided, had the legislature itself provided in S.408(b), Cr.P.C. that appeal shall lie before a Sessions Court against an order of Magistrate Section 30, if it passes a sentence of imprisonment for a term exceeding four years---Principles.

Section 408(b), Cr.P.C. reads, "when in any case an Assistant Sessions Judge passes any sentence of imprisonment for a term exceeding four years, the appeal of all or any of the accused convicted at such trial shall lie to the High Court". Reading of both forms of section 408 shows that words "or a Magistrate specially empowered under section 30" have been omitted in section 408(b). This omission is understandable and consistent with provisions of sections 6, 7, 9, 12, 17, 28, 30, 31, 32 and 34 of Code of Criminal Procedure. All the three Courts i.e. Assistant Sessions Judge, Additional Sessions Judge and Sessions Judge are but one Court exercising jurisdiction in the same Sessions Division. The reason and logic of the amendment is that if a sentence is passed by an Assistant Sessions Judge exceeding 7 years, appeal against an order of Assistant Sessions Judge cannot be filed before a Sessions Judge since they are part of a one Court as noted above. Whereas, a Court of Magistrate may it be Magistrate of Section 30, is not part of Court of Session; the Court of Magistrate Section 30 belongs to a class of Magistrates. Therefore, appeal against the decision of Magistrate Section 30 lies before a Court of Session which is an immediate superior Court. A lot of confusion would have been avoided had Legislature itself provided in section 408(b) that appeal shall lie before a Sessions Court against an order of Magistrate Section 30 if it passes a sentence of imprisonment for a term exceeding four years.

Criminal Appeal No.24 of 2004/BWP and 1994 PCr.LJ 2507 rel.

1998 PCr.LJ 350 ref.

Ghulam Hussain Malik and Malik Matiullah for Petitioner.

Hashim Sabir Raja, A.A.-G. for the State.

Date of hearing: 13th June, 2005.

2005 P Cr. L J 1462

[Lahore]

Before Syed Shabbar Raza Rizvi, J

Major (Retd.) IJAZ AHMED BHATTI---Petitioner

Versus

THE STATE and 3 others---Respondents

Writ Petitions Nos.3465 and 7261 of 2005, heard on 14th June, 2005.

Penal Code (XLV of 1860)---

----S. 489-F---Constitution of Pakistan (1973), Arts.189, 89 & 270-AA---Constitutional petition--Contention of the petitioner was that S.489-F, P.P.C. had been inserted in the Penal Code, 1860 through an Ordinance which had lapsed after expiry of four months, as was contemplated by the provision of Art.89 of the Constitution and thus S.489-F, P.P.C. was no longer a part of Pakistan Penal Code, 1860---Validity---Held, Ordinance by which S.489-F was inserted in the Penal Code was issued by the President/Chief Executive under Provisional Constitution Order, 1999 read with Provisional Constitution (Amendment) Order, 1999 and not under Art.89 of the Constitution---Under Art.270-AA of the Constitution all Presidential Orders including all other laws made between 12-10-1999 and the date on which Art.270-AA of the Constitution came into force (31-12-2003) were accordingly affirmed, adopted and declared to have been validly made by the competent authority notwithstanding anything contained in the Constitution---Section 489-F, P.P.C., therefore, was declared as valid and living law--Principles.

Mian Hussain Ahmad Hyder v. S.H.O. and others 2005 YLR 1565 mentioned.

Dr. Tariq Nawaz v. Government of Pakistan 2000 SCMR 1956 fol.

Tahir Mehmood Butt for Petitioner.

Ch. Khursheed Anwar Bhindar, Addl. A.-G. for the State. Date of hearing; 14th June, 2005.

2005 P Cr. L J 1472

[Lahore]

Before Sh. Abdur Rashid and Syed Shabbar Raza Rizvi, JJ

NABEELA BIBI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2726/B of 2005, decided on 1st June, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 561-A---Control of Narcotic Substances Act (XXV of 1997), S.9---Bail application---Conversion into petition for quashing of F.I.R.---Complaint, recovery memo. and statement under S.161, Cr.P.C. were not drafted by Investigating Officer himself, but were drafted by a constable who was not even present at the time when raid was conducted and alleged narcotic substance was recovered---Investigating Officer who had only signed said documents, had stated that his right hand was infirm and he was not able to write with the same---Police record, however, did not reveal said fact---Entire case, in circumstances had been built up on the basis of false investigational record and said dubious and false record would not furnish any legal basis for trial of accused---Bail application, in circumstances was converted into petition for quashing of F.I.R.---F.I.R. was quashed and accused was released from jail.

Javed Iqbal Rana for Petitioner.

Malik Muhammad Aslam for the State with Muhammad Sarwar Inspector.

2005 P Cr. L J 1477

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD NAWAZ---Petitioner

Versus

SUPERINTENDENT OF POLICE INVESTIGATION, DISTRICT SHEIKHUPURA and 2 others---Respondents

Writ Petition No.6978 of 2005, decided on 13th May, 2005.

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

----S. 156---Constitution of Pakistan (1973), Art.199---Constitutional petition---Investigation into cognizable case---Petitioners had an alternative remedy under S.22-A(b)(ii), Cr.P.C. regarding investigation in the case and the Constitutional petition, therefore, was not maintainable---By virtue of the earlier Constitutional petition filed by the petitioner investigation in the case had been transferred and in the present second Constitutional petition qua the same allegation discretion in his favour was not to be exercised---Constitutional petition was dismissed accordingly.

Ghulam Ali alias Sadoro and others v. S.H.O. Police Station Veehar, District Larkana and others 2003 YLR 2168; Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236; Abdul Latif case 1999 PCr.LJ 1357 and Iftikhar Ahmad's case 1999 PCr.LJ 1831 ref.

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

----S. 156---Investigation into cognizable case---Duty of the Investigating. Agency---Investigating Agency is duty bound not only to investigate the matter in a manner to connect the accused with the commission of the offence but also to bring the truth on the surface to save the innocent persons from the endless agony of investigation and trial.

Ch. Muhammad Anwar Khan for Petitioner.

Muhammad Hanif Khatana, Addl. A.-G. for Respondents.

2005 P Cr. L J 1482

[Lahore]

Before Muhammad Farrukh Mahmud, J

MANZOOR AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.72 and Criminal Revision No.27 of 1999/BWP, heard on 12th May, 2005.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 302(c)---Appreciation of evidence---Dishonest improvements had been made by the prosecution witnesses in their statements after a lot of consultation---Presence of eye-witnesses at the scene of occurrence was not established beyond doubt---Both the, deceased had been murdered inside the house of accused and their dead bodies were recovered from there---Accused had taken the plea of grave and sudden provocation during trial while his statement was being recorded---Said plea was borne out from the circumstances of the case to the extent that the accused had seen his wife and the other deceased together in the house---Accused, even in his statement recorded by the police at the time of his arrest, had taken the plea of sudden and grave provocation---Allegation of the accused that he had seen both the deceased in compromising position was not made out from the circumstances of the case because both the deceased were wearing shirts and Shalwars and the vaginal swabs were not found to be stained with semen---Conviction of accused under S.302(b), P.P.C. was altered to S.302(c), P.P.C. on each count and his sentence of imprisonment for life on each count was reduced to 14 years' R.I. in circumstances with the direction for the sentences to run concurrently.

Chaudhry Masood Ahmad Bajwa for Appellant.

M.A. Farazi for the State.

Muhammad Zahid Khan for the Complainant.

Date of hearing; 12th May, 2005.

2005 P Cr. L J 1496

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD TAYYAB ABU BAKAR---Petitioner

Versus

Rana MASOOD AKHTAR, ADDITIONAL SESSIONS JUDGE BAHAWALPUR and 2 others---Respondents

Criminal Revision No.32 of 2005/BWP, decided on 18th May, 2005.

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

----Ss. 193 & 190(2)(3)---Cognizance of offences by Courts of Session---Sessions Judge cannot take cognizance of any offence as a Court of original jurisdiction unless the same has been sent to him by a Magistrate under S.190(2) or 190(3), Cr.P.C.

Riffat Hayat v. Judge, Special Court for Suppression of Terrorists Activities, Lahore and another 1994 SCMR 2177; Bismillah Khan and another v. The State 2001 PCr.LJ 481; Talib Hussain and another v. Muhammad Aslam and another 1997 PCr.LJ 56 and Muhammad Aslam and 2 others v. Mst. Natho Bibi PLD 1977 Lah. 535 ref.

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

----Ss. 302/148/149---Criminal Procedure Code (V of 1898), Ss.193 & 439---Criminal Revision---Jurisdiction of Trial Court challenged---Sessions Judge was not competent to entertain or take direct cognizance of the complaint filed by the complainant without having been sent upto him by the Magistrate as required under S.190 read with S.193, Cr.P.C.---All the proceedings taken by the Sessions Judge, Additional Sessions Judge and the Magistrate in making inquiry, were consequently declared to be without jurisdiction and without lawful authority and the same were quashed---Complaint filed by the complainant directly and entertained by the Sessions Judge was dismissed---Complainant, however, could file a fresh complaint by following the procedure as laid down in S.190, Cr.P.C.---Revision petition was accepted accordingly.

Riffat Hayat v. Judge, Special Court for Suppressions of Terrorist Activities, Lahore and. another 1994 SCMR 2177; Bismillah Khan and another v. The State 2001 PCr.LJ 481; Talib Hussain and another v. Muhammad Aslam and another 1997 PCr.LJ 56 and Muhammad Aslam and 2 others v. Mst. Natho Bibi PLD 1977 Lah. 535 ref.

Mst. Mariam Sultana v. The State PLD 2000 Quetta 12 dissented from.

Muhammad Saeed and 6 others v. The State and others PLD 1984 SC 29 distinguished.

Syed Asim Ali for Petitioner.

Aslam Javed Minhas for Respondent No.2.

M.A. Farazi for the State.

2005 P Cr. L J 1502

[Lahore]

Before Muhammad Jehangir Arshad, J

ZIAULLAH KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No.75 of 2005/BWP, decided on 9th May, 2005.

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

----Ss. 302/364/201/109---Private complaint was dismissed due to non-appearance of complainant---Validity---Magistrate in his inquiry report had prima facie, found sufficient ground for proceeding further in the complaint case---Sessions Court, in the absence of the complainant or his counsel, could himself decide about the issuance of process for attendance of accused or otherwise---Even if the Trial Court was keen to hear the complainant or his counsel, the best way would have been to grant adjournment giving one more opportunity to the complainant, especially when he being dissatisfied with the police conduct had sought shelter from the Court by filing the private complaint for the murder of his brother and in this way no injustice would have been done, rather it must have been a step towards the advancement of cause of justice---Complainant could also have been directed to produce medical certificate for his non-appearance on the relevant date---Prima facie, no justification appeared for the Trial Court to proceed in such a hasty manner---Case should have been decided on merits without allowing the procedural irregularity or illegality to come in the way---Trial Court should have shown restraint because in either eventuality the trial of the challan case had to be postponed till the decision of the private complaint---Impugned order was consequently set aside being not maintainable with the direction to Trial Court to decide the question of issuance of process for the attendance of accused in the light of the report submitted by the Magistrate in the private complaint---Revision petition was accepted accordingly.

Bashir Ahmad v. Akbar and others 1995 PCr.LJ 995 and Noor Elahi's case PLD 1966 SC 708 ref.

(b) Administration of justice---

----Matters should always be decided on merits and procedural irregularity or illegality should not come in the way of deciding the same.

M. Mukhtar Ahmad for Petitioner.

M.A. Farazi for the State.

2005 P Cr. L J 1507

[Lahore]

Before Ch. Ijaz Ahmad, J

HUSSAIN BIBI---Petitioner

Versus

SUPERINTENDENT OF POLICE, DISTRICT GUJRAT and 9 others---Respondents

Writ Petition No.8357 of 2005, decided on 17th May, 2005.

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

----S. 154---Constitution of Pakistan (1973), Art.199---Constitutional petition---Registration of F.I.R.---Constitutional petition not maintainable in presence of alternative efficacious remedy---Complainant had more than one alternative and efficacious remedies either to file a complaint in the Court of justice of peace in view of S.22-A(6), Cr.P.C. or to file a direct complaint under S.200, Cr.P.C. before the competent Court---Constitutional petition, therefore, was not maintainable and the same was dismissed as such.

Ghulam Ali alias Sadro v. S.H.O. Police Station Veehar, District Larkhana 2003 YLR 2168; Jamshaid Ahmad v. Muhammad Akram Khan 1975 SCMR 149; Mst. Aisha Bibi v. Deputy Inspector-General, Multan PLD 1997 Lah. 184; Altaf Hussain v. Government of Sindh and others PLD 1997 Kar. 600; Zia-ur-Rehman's case PLD 1973 SC 49; Mian Nawaz Sharif's case PLD 1993 SC 473 and Zahoor Elahi's case PLD 1975 SC 383 ref.

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

----Art. 199---Constitutional jurisdiction---Court has only jurisdiction to interpret the law and has no jurisdiction whatsoever to take the role of Investigating Agency.

Zia-ur-Rehman's case PLD 1973 SC 49; Mian Nawaz Sharif's case PLD 1993 SC 473 ref.

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

----Art. 5(2)---Obedience to Constitution---Every person is duty bound to obey the command of the Constitution.

Zahoor Elahi's case PLD 1975 SC 383 ref.

Sanaullah Khan for Petitioner.

Muhammad Hanif Khatana, Addl. A.-G. on Court's call for Respondents.

2005 P Cr. L J 1517

[Lahore]

Before M. Bilal Khan, J

ASMA JAHANGIR, CHAIRPERSON HUMAN RIGHTS COMMISSION OF PAKISTAN---Petitioner

Versus

SENIOR SUPERINTENDENT OF POLICE (OPERATIONS), LAHORE and 3 others---Respondents

Writ Petition No.8714 of 2005, decided on 20th May, 2005.

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

----Ss. 154, 22-A. & 22-B---Constitution of Pakistan (1973), Art.199---Constitutional petition---Registration of criminal case against police officials--S.H.O., no doubt, on having received information regarding commission of a cognizable offence was bound to register a case, if the allegation were found by him to be prima facie correct---High Court, however, could not prohibit the S.H.O. concerned from investigating the case---If the police were not favourably inclined towards the petitioner/complainant on account of any interest in the accused persons, they were likely to spoil her case in the first few Zimnies which they were bound to record after registration of the case---Issuing a direction for registration of case, in such circumstances, would not serve any useful purpose and the insistence of the petitioner (complainant) to get a criminal case registered would be quite unrealistic---According to the dictates of realism remedy by filing a private complaint directly before the Magistrate would be more effective and appropriate---Sessions Judge in his capacity as ex officio Justice of the Peace could also provide another equally efficacious and speedy remedy under Ss.22-A & 22-B, Cr.P.C. and grant the requisite relief to the petitioner---Constitutional petition was dismissed in limine with the said observations.

Mst. Bashiran Bibi v. Station House Officer Police Station Shorkot and another PLD 1978 Lah. 1323 and Muhammad Masood v. S.S.P., Railways, Rawalpindi and others 2000 PCr.LJ 67 ref.

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

----S. 154---Constitution of Pakistan (1973), Art.199---Constitutional petition---Registration of criminal case against police officials---Filing of a private complaint most efficacious remedy---High Court even after directing registration of a criminal case against the police officials cannot control and regulate the investigation-Most efficacious remedy available to the complainant, therefore, is to file a private complaint against the police officials.

Mst. Bashiran Bibi v. Station House Officer Police Station Shorkot and another PLD 1978 Lah. 1323 and Muhammad Masood v. S.S.P., Railways, Rawalpindi and others 2000 PCr.LJ 67 ref.

Azam Nazeer Tarar for Petitioner.

Ch. Aamir Rehman, Addl. A.-G. assisted by Tanvir Ahmad Shami (on Court's call).

2005 P Cr. L J 1520

[Lahore]

Before Sh. Abdur Rashid and M. Bilal Khan, JJ

NAZAR HUSSAIN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1015 of 2001, heard on 10th May, 2005.

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

----S. 9(c)---Appreciation of evidence---Inspector/S.H.O. who was complainant of the case and had also drafted all the important investigational documents whereby the narcotic substance was allegedly recovered from each accused, was not examined by the prosecution at the trial---Complaint as well as the recovery memos., thus, were not validly proved on the file---Evidence of other Police Officer who had narrated the prosecution story or his mere attestation of the recovery memos. was not sufficient to establish the prosecution case---Another Police Officer who had conducted the subsequent investigation in the case and had recorded the statements of all the prosecution witnesses under S.161, Cr.P.C. had also not been produced in the case to confirm that the allegations against the accused were found correct---Even none of the witnesses appearing before the Court had stated that the report under S.173, Cr.P.C. had been submitted by him against the accused---Non-production of most important prosecution witnesses in the case had, thus, left a big dent in the prosecution case---Co-accused with the allegations of identical nature had already been acquitted by the Trial Court under S.265-K, Cr.P.C. and the same evidence could not be believed against the accused without any independent corroboration which did not exist in the case---Conviction of the accused was based merely on presumption---Entire prosecution evidence was not only doubtful but extremely deficient and did not in any manner establish the case against the accused---Accused were acquitted accordingly.

Ch. Imran Raza Chadhar and Sardar Muhammad Latif Khan Khosa for Appellants.

Syed Fazal Hussain Jafri for the State.

Date of hearing: 10th May, 2005.

2005 P Cr. L J 1529

[Lahore]

Before Ali Nawaz Chowhan and Umar Ata Bandial, JJ

AZMATULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.541 and 564 of 1998 and Murder Reference No.316 of 1998, heard on 8th June, 2005.

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

----S. 302/34---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Locale of the injury on the deceased was head where the dastardly fire shot had caused the death of the deceased---Accused was young person at the time of occurrence, and exhortation had stimulated his impulse---Witnesses were related and there was enmity inter se the parties which had further added to the merit of the argument of mitigation---Prosecution having established the case against the accused without any doubt, High Court upheld the order of conviction but keeping in view the circumstances of the case, reduced the sentence from death to life imprisonment---Benefit accruing under S.382-B, Cr.P.C. shall also be available to the accused.

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

----S. 417---Penal Code (XLV of 1860), S.302/34---Appeal against acquittal---Order of acquittal did not suffer from any infirmity because the probabilities on the basis of which accused was acquitted by the trial Court were possible---No miscarriage of justice at the end of trial Court arriving at the conclusion were found---Appeal against acquittal was dismissed.

Sardar Latif Khan Khosa for Appellant.

Ch. Imtiaz Ahmad for the State.

Inayat Ullah Cheema for the Complainant.

Date of hearing: 8th June, 2005.

2005 P Cr. L J 1546

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD IQBAL---Petitioner

Versus

ILLAQA MAGISTRATE/SENIOR CIVIL JUDGE, FAISALABAD and 5 others---Respondents

Criminal Miscellaneous No.821/M of 2005, decided 26th May, 2005.

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

----Ss. 561-A, 516-A & 439---General Clauses Act (X of 1897), S.24-A---Quashing of orders---Special Judge Anti-Corruption had passed order oil revision petition filed by petitioner without judicial application of mind which was condition precedent---Public functionaries were duty bound and obliged to decide cases without fear, favour, with reasons and within reasonable time---Impugned order was passed in revision in such a manner that petitioner had become remediless, which was not within the parameters of law.---Impugned order being result of misreading and non-reading of record, was set aside---Revision petition by petitioner before Special Judge Anti-Corruption would be deemed pending adjudication---Petitioner, though had filed revision petition, but Special Judge was directed to consider same as application filed by petitioner under S. 516-A, Cr.P.C. and to decide the same accordingly after application of mind.

Mollah Ejahar Ali v. Government of East Pakistan PLD 1970 SC 173 and Messrs Airport Support Services's case 1998 SCMR 2268 ref.

Ch. Azeem Sarwar for Petitioner.

Muhammad Banff Khatana, Addl. A.-G. on Court's call.

2005 P Cr. L J 1549

[Lahore]

Before Sardar Muhammad Dogar and Khalil-ur-Rehman Ramday, JJ

GHULAM HUSSAIN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.100 and Murder Reference No.9 of 1989/BWP decided on 22nd July, 1992.

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

----Ss. 302, 307 & 34---Appreciation of evidence---Wife of deceased, who herself had received injuries in occurrence, was one of inmates of house where occurrence had taken place; her presence at the place of occurrence at relevant time, in circumstances, was beyond any doubt; she, no doubt was widow of deceased and mother of deceased baby, but she was also the real sister of one of the accused and Mamuzad (cousin) of other one---Defence had failed to bring out even slightest possible ill-will or animosity which could have prompted her to maliciously secure the death of her own blood by falsely substituting them for the real killers of her husband and her son---Solitary statement of said witness appeared to be sufficient to hold accused persons guilty of charge levelled against them---Witness was supported by another prosecution witness who was again another inmate of the house which was the scene of crime---Said other witness though was a real sister of deceased, but defence had failed to demonstrate any reason which could have led her to falsely involve accused in the crime---Statement of deceased made immediately after occurrence which statement became F.I.R. of the case and which qualified his dying declaration, was another factor corroborating widow of deceased---Chemical Examiner, through his report had opined that liquid in can, was sulphuric acid which allegedly, was thrown over the deceased and injured accused persons---Said report was in further confirmation of accusations levelled by prosecution against accused---Occurrence in question though had taken place in the darkness of night, but on account of extremely close relationship of eye- witnesses with accused persons, claim of eye-witnesses regarding identification of accused by them, would be a claim open to no serious exception---Two accused, in circumstances had rightly been convicted of the charges levelled against them and said conviction was unexceptionable.

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

----Ss. 302, 307, 308,, 309, 310, 338-H & 34---Appreciation of evidence---Compromise---Grant of Afw to accused---Father of deceased had (lied prior to the occurrence, while his mother died after the said occurrence---Widow and two daughters, were the only descendent left behind by deceased---Apart from them deceased had one brother and three sisters, who had survived the deceased---Since deceased had not been survived by any male issue, besides his widow and two daughters, his only brother and three sisters also became his heirs according to Shariah---Other deceased had been survived only by his mother and two sisters---Brother of deceased and his two sisters had granted Afw to accused persons in the name of Allah whereas third. sister of deceased,. had not granted Afw to any of accused for murder of her brother nor she was willing or prepared to compound said offence-Similarly widow of deceased, stated on her behalf as also on behalf of her two minor daughters that she neither granted Afw to accused for murder of her husband and minor son nor she had forgiven them with respect to injuries that accused had caused on her person and on the person of her minor daughter--Two accused having not been granted Afw in respect of charge wider Ss. 307 & 34, P.P.C., said offence did not stand compounded---Conviction and punishment recorded against said accused by Trial Court on charge under Ss.307 & 34, P.F.C., were maintained---Some of Walis of deceased had granted Afw to accused, while others had refused to compound the offence in question---Present case was not governed by provisions of 5.308, P.P.C.,. but clause (c) of S:302, P.P.C. was available to regulate said case which had provided that where punishment of Qisas was not applicable according to Injunctions of Islam, offender could be punished with imprisonment of either description for a term extending up to 25 years---In view of fact that some of Walis of deceased had granted Afw to accused, sentences of death could not be enforced against them, but they would be liable to pay to the Walis, not granting Afw, their share in Diyyat and accused would also be liable to be punished with imprisonment extending up to 25 years by way of Tazeer according to Injunctions of Islam as envisaged by provisions of S.302(c), P.P.C.---All sentences of imprisonment awarded to accused under Ss.302, 307 & 34, P.P.C. would run concurrently and benefit of provisions of S.382-B, Cr.P.C. would also be allowed to them.

A.R. Tayyab for Appellants.

Shaheen Masood Rizvi for the State.

Masud Ahmad Gillani for the Complainant.

Dates of hearing: 19th and 22nd July, 1992.

2005 P Cr. L J 1559

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

SHAHID RASHID and others---Petitioners

Versus

STATION HOUSE OFFICER and others---Respondents

Writ Petition No. 1375/Q of 2005, decided on 2nd June, 2005.

Penal Code (XLV of 1860)---

----Ss. 337-H(ii), 452, 506, 148 & 149---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of F.I.R.---Respondent got registered criminal case against petitioners, but during investigation case was found to be false and discharge report was accordingly prepared---Illaqa Magistrate, however, disagreed with report and directed police to submit challan---Petitioners had prayed for quashing of F.I.R.---Police Officer present in the Court had stated that Investigating Officer had found petitioners to be innocent; that thereafter investigation was verified by Incharge Investigation and that complainant did not appear before D.S.P. (Investigation) despite directions were issued in this behalf---Report prepared by S.H.O. Police Station had shown that during investigation no empty was recovered nor complainant produced same before Investigating Officer---Residents of locality and "Mohallah" had stated that no such occurrence had taken place and that complainant got registered. a false case against petitioners---Accused/petitioners having been found to be innocent, F.I.R. registered against them was quashed.

Waheed Afzal Malik and Jamshed Ali Sehgal for Petitioners.

Rai Shabbir Ahmad for Respondent No.3/Complainant.

Ch. Muhammad Suleman, Addl. A.-G. and Qadir Bakhsh, A.S.-I. along with record.

2005 P Cr. L J 1573

[Lahore]

Before Ali Nawaz Chowhan and Rustam Ali Malik, J

MUHAMMAD NAEEM KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.1232 and 1233 of 2003, heard on 27th May, 2004.

Penal Code (XLV of 1860)---

----Ss. 409, 420, 468, 471, 411 & 109---National Accountability Ordinance (XVIII of 1999), Ss. 10, 11 & 15---Appreciation of evidence---Reduction in sentences---Accused who had not argued case on merits, had stated that he was invoking the principle of equality with respect to sentence awarded to co-accused and in that connection he had referred to the judgment given by another Bench of High Court against co-accused of accused when co-accused were awarded less sentences and even those sentences were reduced to three years each and fine awarded to said co-accused was also reduced accordingly---Counsel appearing on behalf of National Accountability Bureau, referred to provisions of S.11 of National Accountability Ordinance, 1999 and submitted that fine had to correspond to ill-gotten gains made by accused and could not be reduced in case of conviction---Accused had stated that the Court may follow provisions of S.11 of National Accountability Ordinance, 1999 on the aspect of fine---Sentence of imprisonment awarded to accused, was reduced to three years' R.I., but upheld decision of Trial Court with regard to quantum of fine.

Chaudhry Abdul Ghaffar for Appellant.

Waqar Hassan Mir, D.P.G., N.A.B. for the State.

Date of hearing: 27th May, 2004.

2005 P Cr. L J 1579

[Lahore]

Before Fazal-e-Miran Chauhan, J

MUHAMMAD RAMZAN---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE/JUSTICE OF PEACE, KABIRWALA, DISTRICT KHANEWAL and 6 others---Respondents

Writ Petition No.3774 of 2005, decided on 27th June, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 154, 22-A & 22-B---Constitution of Pakistan (1973). Art. 199---Constitutional petition---Maintainability of---Petitioner had sought registration of criminal case against respondents, who, allegedly, had forcibly snatched bags of wheat from him on gun point---Petitioner had alleged that Additional Sessions Judge/Justice of the Peace had dismissed his application for registration of case against respondents in routine without applying its judicious mind to facts and circumstances of the case---Justice of the Peace on application of petitioner, sought comments from S.H.O. concerned, who, in his comments, had stated that no alleged occurrence had taken place as per his investigation---S.H.O. also stated that there was dispute between the parties regarding payment of some amount---Validity---If petitioner had any evidence against respondents for commission of criminal offence, it would be appropriate for him to file a private complaint before Court of competent jurisdiction instead of running after police who was not prepared to accept his contention---Only a Court of competent jurisdiction, after recording convincing evidence of petitioner, could issue summons against respondents and if found them guilty, could punish them in accordance with law.

M. Zafar Khan Sial for Petitioner.

2005 P Cr. L J 1587

[Lahore]

Before Sh. Javaid Sarfraz, J

NOOR MUHAMMAD and another---Petitioners

Versus

THE STATE---Respondent

Criminal Revisions Nos.457 and 459 of 2004, decided on 2nd February, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 514, 435 & 439---Penal Code (XLV of 1860), Ss.337-F(v), 337-A(i) & 34---Forfeiture of surety bond---Accused in the case were granted pre-arrest bail and petitioners stood sureties for them---On date of hearing, accused appeared in Court on first call, but subsequently did not turn up despite the fact that Court waited till the closing hours---Bail petitions of accused were dismissed for non-prosecution and bail bonds of petitioners/sureties were forfeited and show-cause notices under S.514, Cr.P.C. were issued to petitioners, which they duly replied---Submission of petitioners that their responsibility was only till the bail petition was argued, was not well-founded because till the disposal of bail petition, it was duty of sureties to ensure that accused appeared in the Court whenever the case was called upon; it was to secure attendance of accused in the Court that bail bonds from sureties were obtained---Duty of petitioners/sureties was to ensure that accused were present in the Court when the case was called again---Lenient view had already been taken by Trial Court directing petitioner to pay Rs.10,000 each instead of Rs.25,000 each.

1993 PCr.LJ 1727; 1996 PCr.LJ 1999; 2000 PCr.LJ 2063; 2000 PCr.LJ 94; 1997 PCr.LJ 1927; 1996 PCr.LJ 1028; Muhammad Safeer v. Faqir Khan and 2 others 2000 SCMR 312 and Abbas Ali v. The State 2004 SCMR 879 ref.

Tahir Mahmood for Petitioners.

Ch. Muhammad Akbar for the State.

2005 P Cr. L J 1594

[Lahore]

Before Asif Saeed Khan Khosa, J

Rana NASIR ZAHEER---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4924-B of 2004, decided on 27th July, 2004.

Criminal Procedure Code (V of 1898)-

-----S. 497(2)-Emigration Ordinance (XVIII of 1979), Ss. 17 & 22---Bail, grant of---Further inquiry---F.I.R. had been lodged with a delay of about three years---Complainant, in his application submitted before F.I.A., had maintained that he had paid certain amount to another person in respect of sending his son abroad for the purpose of providing him employment there and subsequently' complainant had paid amount to accused in that regard---Said stand taken by complainant in his application, was diametrically opposed to his stand taken earlier in a written statement filed by him in a suit filed by said other person---Complainant, in the written statement, had not named accused in any capacity whatsoever and had maintained therein that it was the other person who had obtained entire sum from complainant for sending his son abroad---Case against accused, in circumstances was one of further probe---Nothing had been recovered from possession of accused during investigation of case---Investigation had already been finalized---Continued custody of accused in jail, was not likely to serve any beneficial purpose---Case against accused calling for further inquiry into his guilt within purview of subsection (2) of S.497, Cr.P.C., he was admitted to bail.

Fayyaz Ahmad Mehr for Petitioner.

Javed Sarfraz Shaikh, Standing Counsel for the Federation of Pakistan with Shaukat Ali, Inspector, F.I.A. with record.

2005 P Cr. L J 1604

[Lahore]

Before Muhammad Muzammal Khan, J

PERVAIZ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2083/B of 2005, decided on 8th April, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 337-A(ii), 337-F(i), 148 & 149---Bail, grant of---Further inquiry---No injury was found with sharp-edged weapon on the person of complainant and medical evidence was at variance with ocular stance of prosecution---F.I.R. was registered with an unexplained delay of 24 hours despite the fact that Police Station was closely located to the place of occurrence---Injury on the person of accused and other injured persons of his party had not been explained in the F.I.R. and that suppression had negatively reflected on prosecution story---Complainant though had mentioned in the F.I.R. that accused took complainant out of his house and assaulted him in a street, but the scuffle was undisputedly occasioned in a public thoroughfare and no evidence was on file to show that which of the parties, was aggressor and that fact would be decided by the Trial Court after recording of evidence---Such factor had made case of accused of further inquiry---Accused joined police investigation while on physical remand and his person was no more needed for investigation purpose---No probability existed of abscondence of accused or his tampering with prosecution evidence---Bail was not to be withheld as punishment and further detention of accused would not advance prosecution case any snore---Accused would face the sentence if ultimately convicted by Trial Court at the conclusion of the, case---Accused having made out a case for his post-arrest bail in case registered against him, he was allowed bail pending its trial.

Justin Gil for Petitioner.

Riaz Qadeer Khan Lodhi for the State with Muhammad Amin S.H.O.

2005 P Cr. L J 1624

[Lahore]

Before Asif Saeed Khan Khosa, J

ASIM WAQAR DOGAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.663/B of 2004, decided on 8th March, 2004.

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

-----S. 497(2)---Emigration Ordinance (XVIII of 1979), Ss. 17 & 22---Bail, grant of---Further inquiry---No independent evidence had been collected by Investigating Agency in case apart from mere oral statements of complainant and his witnesses---Nothing had been recovered from possession of accused during investigation of the case---Background of a business dispute existed between parties arising out of dissolution of a partnership and in that backdrop, false implication of accused could not be ruled out of consideration---investigation of case had already been completed qua accused and an incomplete challan had already been submitted before Trial Court---Physical custody of accused was no longer required for purpose of investigation---Alleged payment of money had been made by complainant to accused at a time when parties were already engaged in winding up of their partnership on account of serious differences---Handing over of huge amount of money by complainant to accused at such a stage for sending complainant abroad, appeared to be prima facie improbable---Factual controversy between parties required elaborate evidence to be recorded by Trial Court in that regard and that stage had not so far arrived in the case---Case against accused called for further inquiry into his guilt within purview of subsection (2) of S.497, Cr.P.C., he was admitted to bail.

Fayyaz Ahmad Mehr for Petitioner.

Javed Sarfraz Sheikh, Standing Counsel for the Federation of Pakistan with Ajmal Farooq, S.-I. F.I.A., Lahore with record.

Kamil Hussain Naqvi for the Complainant.

Ch. Ghulam Shabbir for the State.

2005 P Cr. L. J 1636

[Lahore]

Before Tassaduq Hussain Jillani, J

ANWAR MASIH-Petitioner

Versus

THE STATE-Respondent

Criminal Miscellaneous No.2581/B of 2004, decided on 4th June, 2004.

Criminal Procedure Code (V of 1898)---

-----S. 497(2)---Penal Code (XLV of 1860), Ss. 295 & 295-A---Bail, grant of---Further inquiry---Case against accused had been registered on the statement of complainant who converted himself from Christianity to Islam only three months prior to occurrence---Law Officer had conceded that except complainant there was no other eye-witness of the occurrence---Prima facie some old ill-will existed between accused and complainant---In a previous criminal case father of accused .was an eye-witness against complainant---Accused had no previous criminal history and he was a poor labourer having three children to look after---Question of guilt of accused would require further inquiry---Accused was admitted to bail, in circumstances.

Justin Gill and Akbar Munawar Durrani for Petitioner.

Ch. Khurshid Anwar Bhinder, Addl. A.-G. and Muhammad Altaf, S.-I. for the State.

2005 P Cr. L J 1656

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD SADIQ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6236/B of 2004, decided on 21st September, 2004.

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

-----S. 497(2)-Emigration Ordinance (XVIII of 1979), Ss. 17 & 22---Bail, grant of---Further inquiry---Allegation against .accused was that about 3/4 years ago he received amount from complainant on the pretext of sending his brother to London for employment; that accused allegedly took brother of complainant to South Africa and while leaving him there came back to Pakistan and in that way complainant had been defrauded by accused---Brother of complainant had not returned to Pakistan from South Africa where he travelled along with accused---During investigation neither any travelling document was received from accused nor any kind of evidence showing that accused travelled to South Africa along with brother of complainant as alleged in F.I.R., had been brought on record---Why brother of complainant had not come to Pakistan and whether he had got any job in any foreign country, was a question which was to be answered by prosecution during trial---Story narrated in F.I.R. as well as facts available on record, prima facie were sufficient to bring case of accused within folds of further inquiry entitling him to concession of bail---Accused was admitted to bail, in circumstances.

Fayyaz Ahmed Mehr for Petitioner.

S.D. Qureshi for the State.

Gull Snober Khan, Inspector.

2005 P Cr. L J 1681

[Lahore]

Before Muhammad Nawaz Bhatti, J

MUHAMMAD SHOAIB---Petitioner

Versus

S.H.O., POLICE STATION NEW MULTAN and another---Respondents

Writ Petition No.952/Q of 2005, decided on 21st April, 2005.

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

---Ss. 10(2), 13 & 14---Criminal Procedure Code (V of 1898), Ss.249-A & 265-K---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Factual controversy could not be taken into consideration through Constitutional petition---Proceedings would be quashed by High Court on having been satisfied by cogent material that the prosecution was launched for improper motives merely to harass the accused or its continuance would be an abuse of the process and that to allow the prosecution to continue would not be in the ends of justice---Constitutional petition would even not be maintainable when alternative remedy was available to the accused under S.249-A or 265-K, Cr.P.C.---No illegality or mala fides and jurisdictional error was found in the case---Constitutional petition was dismissed accordingly.

Naseem Beg v. M. Iqbal and others 1981 SCMR 315 and Ghulam Muhammad v. Muzammal Khan and others PLD 1967 SC 317 ref.

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

----Art. 199---Constitutional jurisdiction---Scope---Quashing of proceedings---Principles---High Court can quash proceedings if satisfied from cogent material that the prosecution was launched for improper motives merely to harass the accused or its continuance would amount to an abuse of the process and if it concludes that it would not be in the ends of justice to allow the prosecution to continue.

Naseem Beg v. M. Iqbal and others 1981 SCMR 315 ref.

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

----Art. 199---Criminal Procedure Code (V of 1898), Ss.249-A & 265-K---Constitutional petition---Maintainability---Availability of alternative remedy---Constitutional petition would not lie if alternative remedy is available to the petitioner under S.249-A or 265-K, Cr.P.C.

Ghulam Muhammad v. Muzammal Khan and others PLD 1967 SC 317 ref.

Rana Muhammad Hussain for Petitioner.

Malik Muhammad Baqir Awan for the Complainant.

Muhammad Ashraf S.-I. with record.

2005 P Cr. L J 1703

[Lahore]

Before Khawaja Muhammad Sharif, J

BILAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.7071/B of 2004, decided on 19th October, 2004.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Bail, grant of---Further inquiry---Name of accused was not mentioned in supplementary statement as an accused---Police Officer, who appeared in the Court along with record, had stated in the Court that three persons had implicated accused in the case---Statements of said three persons recorded under S.161, Cr. P. C. , had shown that neither of them had implicated accused in the case---Case of accused in view of evidence on record, was of further inquiry falling under subsection (2) of S.497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Fayyaz Ahmad Mehr for Petitioner.

Ashfaq Ahmad Chaudhry with Idrees S.-I. with Record for the State.

2005 P Cr. L J 1705

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD RIAZ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6187/B of 2004, decided on 8th October, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Emigration Ordinance (XVIII of 1979), Ss. 17 & 22---Bail, grant of---Entire case of prosecution against accused was in the form of oral evidence and nothing was recovered from accused during investigation---One of prosecution witnesses was real maternal aunt of accused who had some family dispute with father of accused and allegedly at the behest of her husband false case had been concocted against the accused---Investigation of case was complete and accused, who was behind the bars for the last more than six months, was no more required for said purpose---Challan in the case though had already been submitted, but no progress had been made in the matter pending before Trial Court---Further incarceration of accused, in circumstances, would not serve any purpose---Accused was admitted to bail, in circumstances.

Fayyaz Ahmad Mehr for Petitioner.

Sh. Javed Sarfraz Standing Counsel for the State.

Shahid Habib, S.-I. F.I.A.

2005 P Cr. L J 1706

[Lahore]

Before Maulvi Anwarul Haq, J

ZIA-UR-REHMAN SAJID---Petitioner

Versus

MUHAMMAD ASLAM and another---Respondents

Criminal Miscellaneous No.126/CB of 2005, decided on 30th June, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 496, 497(5), 498, 561-A & 91---Cancellation of bail---Application for---Accused, who was granted pre-arrest bail, having absented himself on relevant date, his pre-arrest bail was withdrawn by Trial Court, and non-bailable warrants of his arrest were issued for specified date---On said date Trial Court observed that an Advocate had produced accused and accused was taken into custody---Trial Court had further observed -that as accused had himself put up his appearance, accused was directed to submit surety bonds as required under S.91, Cr.P.C.---Validity---Provisions of S.91, Cr.P.C. were to be read in conjunction with provisions of Ss. 496 & 497, Cr.P.C. and despite fact that accused had put in appearance before Trial Court, provisions of Ss. 496 & 497, Cr.P.C. had not been rendered ineffective---Trial Court had acted without lawful authority in assuming that accused was entitled to automatic admission to bail---No power was vesting in Trial Court to release accused after taking him into custody without passing an order in terms of S.497, Cr.P.C.---High Court treated criminal miscellaneous as an application under S.561-A, Cr.P.C. and allowing same, set aside impugned order of Trial Court.

Noor Nabi and 3 others v. The State 2005 PCr.LJ 505 ref.

Sardar M. Akarm Khan Pitafi for Petitioner.

Zafar Ullah Khan Khakwani, A.A.-G. for the State.

Ayaz Ahmad Chaudhry along with Respondent No.1 in person.

Ghulam Hashim, S.-I. with Record.

2005 P Cr. L J 1709

[Lahore]

Before Fazal-e-Miran Chauhan, J

MISBAH-UL-HASSAN---Petitioner

Versus

THE STATE and 3 others---Respondents

Writ Petition No.1072 of 2005, heard on 4th April, 2005.

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

----S. 167---Remand---Grant or refusal of physical remand by Magistrate is a judicial function.

Riaz-ul-Haq and another v. Muhammad Naveed and another 2005 YLR 805; Ghulam Sarwar and another v. The State 1984 PCr.LJ 288 and Muhammad Rafi v. The State and others 1969 PCr.LJ 873 ref.

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

----S. 167---Penal Code (XLV of 1860), 5.379---Constitution of Pakistan (1973), Art.199---Constitutional petition---Refusal of further remand by Magistrate---Validity---Magistrate, no doubt, was empowered to grant physical remand of the accused for a maximum period of 14 days under S.167, Cr.P.C., but he could not be compelled to give full 14 days remand, if for 6/8 days the police could not give any progress in the case---Investigating Agency had full time to investigate the case and the said situation had reflected adversely upon the efficiency of the Investigating Officer---Sessions Court had rightly observed in its order passed in revision that the order of the Magistrate refusing to extend the period of physical remand of the accused was not wrong---Constitutional petition was dismissed in circumstances.

Sundar Singh v. Emperor AIR 1930 Lah. 945; Bal Krishna v. Emperor AIR 1931 Lah. 99; 1984 PCr.LJ 2472; 1984 PCr.LJ 2588; 1989 PCr.LJ 1993; PLD 1969 Lah. 1020; 2000 PCr.LJ 520; 2001 MLD 1459; Riaz-ul-Haq and another 'v. Muhammad Naveed and another 2005 YLR 805; Ghulam Sarwar and another v. The State 1984 PCr.L,J 288 and Muhammad Rafi v. The State and others 1969 PCr.LJ 873 ref.

Sh. Shahid Mehmood for Petitioner.

Syed Jaffar Bokhari and Muhammad Qasim Khan, A.A.-G. for the State.

Date, of hearing: 4th April, 2005.

2005 P Cr. L J 1713

[Lahore]

Before Muhammad Nawaz Bhatti, J

Raja ZAHOOR AHMED---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Miscellaneous No.238/CB of 2004, decided on 5th April, 2005.

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

----S. 497(5)---Cancellation of bail---Guiding principles enunciated---Bail is liable to be cancelled on the grounds (1) if bail had been granted by a Court having no jurisdiction to grant it, (2) if the accused on bail commits the same offence again, (3), if the accused on bail hampers the investigation, (4) if the accused on bail tampers with the evidence, (5) if the accused absconds after grant of bail, (6) if the accused had got bail on the basis of false averments regarding his age or illness etc., (7) if the accused was implicated as the principal offender in several cases which badly affect the society at large like smuggling of narcotics, (8) if the grant of bail to an accused would become a foundation of revenge against the complainant party, prosecution or the witnesses and (9) if the bail order was devoid of reasoning and the facts of the case were fully implicating the accused attracting S.497(1), Cr.P.C.

Muhammad Ramzan v. Taj Muhammad and another 1996 'PCr.LJ 2006 ref.

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

---S. 497(5)---Cancellation of bail---Principles---Strong and exceptional grounds are needed for cancellation of bail granted by a Court of competent jurisdiction.

Bashir Ahmad v. Mirza Muhammad Ayub 1991 MLD 579 ref.

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

----S. 497(5)---Penal Code (XLV of 1860), S.380---Cancellation of pre-arrest bail, refusal of---Complainant had given two buffaloes to the accused on Batai and for usurping the same he had instigated the police with mala fide intention, lodged the F.I.R. and recovered the said buffaloes---Mala fide was apparent on the part of the complainant and the police to implicate the accused in the case---No allegation of misusing the concession of pre-arrest bail had been made against the accused---Sessions Court had exercised the discretion in accordance with law and impugned order had no illegality---Petition for cancellation of bail was dismissed in circumstances.

Muhammad Ramzan v. Taj Muhammad and another 1996 PCr.LJ 2006 and Bashir Ahmad v. Mirza Muhammad Ayub 1991 MLD 579 ref.

Tariq Zulfiqar Ahmad Chaudhry for Petitioner.

Muhammad Iqbal Khan Khattak for Respondents.

Ata-ul-Manan for the State.

Muhammad Zia, A.S.-I.

2005 P Cr. L J 1716

[Lahore]

Before Sh. Javaid Sarfraz and Fazal-e-Miran Chauhan, JJ

NAZAR MUHAMMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1517/B of 2005, decided on 31st May, 2005.

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

----S. 498---National Accountability Ordinance (XVIII of 1999), S.31-A---Interim protective bail, grant of---Accused after having been declared as an absconder had been sentenced under S.31-A of the National Accountability Ordinance, 1999, and his appeal was pending before the High Court of Sindh at Karachi---Accused had sought interim protective bail enabling him to apply for bail before the competent Courts at Karachi---High Court of a Province had the power to grant protective bail to an accused in a case registered in another Province---Interim protective bail was consequently granted to accused for a specified period of fifteen days to enable him to proceed to Karachi and apply for bail before the Courts competent jurisdiction.

1990 PCr.LJ 617; 1989 PCr.LJ 2152; PLD 2003 SC 668 and PLD 2002 SC 546 ref.

Ghulam Nabi Soomro for Petitioner with Nazar Muhammad, petitioner, identified by the learned counsel.

2005 P Cr. L J 1718

[Lahore]

Before M.A. Shahid Siddiqui, J

FAZAL HUSSAIN and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2742/B of 2003, decided on 6th November, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324/452/34---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18---Bail, grant of---All the prosecution witnesses including the complainant and the injured witnesses had appeared before the Sessions Court and submitted their affidavits exculpating the accused from the commission of the crime as a result of compromise arrived at between the parties---Conviction of accused in circumstances being not possible, their further detention in jail was not likely to serve any purpose---Accused were admitted to bail accordingly.

Habib Ullah Shakir for Petitioner.

Raja Khurram Sultan for the State with Sadiq Hussain, A.S.-I.

2005 P Cr. L J 1719

[Lahore]

Before Maulvi Anwarul Haq, J

NAUMAN YOUSAF---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No.68 of 2005, heard on 5th May, 2005.

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

----S. 302---Juvenile Justice System Ordinance (XXII of 2000), S.7---Determination of age of accused---Sessions Court, after having entertained the application of accused regarding his being juvenile at the time of occurrence, proceeded with the trial and recorded prosecution evidence, statement of the accused and defence evidence---Side by side the Sessions Court conducted proceedings on the said application---No reason recognized by law was given by the Trial Court for disbelieving the Birth Certificate and the Nikah Nama---Entries in the Birth Certificate had sanctity in law and unless and until the same were proved to be forged or fabricated, they constituted evidence of the contents---Age recorded in the Matriculation Certificate was not conclusive evidence of age---Trial Court was duty bound to have summoned the record pertaining to the Birth Certificate, Nikah Nama and the Matriculation Certificate in order to satisfy itself as to their genuineness---Impugned order whereby the aforesaid application of the accused was dismissed, was consequently set aside and the Trial Court was directed to proceed further in the matter in the light of observations and directions made by the High Court--Criminal Revision was allowed accordingly.

Malik Ghulam Dastgir v. S.M.A. Kazmi, Secretary, Government of West Pakistan, Food Department, Lahore and another PLD 1970 Lah. 33 and Sultan Ahmad v. Additional Sessions Judge-I, Mianwali and others PLD 2004 SC 758 ref.

(b) Juvenile Justice System Ordinance (XXII of 2000)---

----S. 7---Determination of age---Matriculation Certificate---Age recorded in the Matriculation Certificate is not conclusive evidence of age.

Malik Ghulam Dastgir v. S.M.A. Kazmi, Secretary, Government of West Pakistan, Food Department, Lahore and another PLD 1970 Lah. 33 ref.

Sh. Muhammad Rafiq Goreja for Petitioner.

Ch. Faqir Muhammad for Respondent No.2.

Date of hearing: 5th May, 2005.

2005 P Cr. L J 1731

[Lahore]

Before Ch. Ijaz Ahmad, J

SKYWAYS URBAN TRANSPORT (PRIVATE) LIMITED---Petitioner

Versus

THE ADMINISTRATOR GENERAL BUS STAND, LAHORE and 5 others---Respondents

Writ Petitions Nos.11961, 11962 and 11963 of 2005, decided on 5th July, 2005.

(a) Traffic Offences (Special Courts) Ordinance (XXXIX of 1981)----

---Ss. 3, 4 & 6---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability of---Alternative remedy---Availability of---Petitioner had alternative remedy with regard to the action taken by Authorities against petitioner qua submission of challan before Special Court---Any offence committed by any person qua traffic was triable by a Special Court constituted under provisions of Traffic Offences (Special Courts) Ordinance, 1981---Competent Authority had power to constitute a Special Court under S.3 of Traffic Offences (Special Courts) Ordinance, 1981 and provisions of Criminal Procedure Code, 1898 were applicable in view of S.3(4)(5)(6) of said Ordinance---Jurisdiction of Special Court was also specified in S.4 of Traffic Offences (Special Courts) Ordinance, 1981---If the Special Court had passed any order, then aggrieved party had a right of appeal in the Court of Session in terms of S.6 of Traffic Offences (Special Courts) Ordinance, 1981---Constitutional petition was not maintainable to the extent of clhallan which had already been submitted before Special Court---Constitutional petitions were not maintainable in presence of said alternative remedy.

Arshad Mehmood and others v. Government of Punjab PLD 2005 SC 193; Tariq Transport Company's case PLD 1958 SC (Pak.) 437; Kh. Fazal Karim's case PLD 1976 SC 461; Sher Khan's case 1968 SCMR 62; Ghulam Muhammad's case PLD 1967 SC 317; Pir Sabir Shah v. Shad Muhammad Khan N.-W.F.P. and another PLD 1955 SC 66; The Collector, Customs, Karachi v. Messrs New Electronics (Pvt.) Limited and others PLD 1994 SC 363; Rifaat Askari v. State PLD 1997 Lah. 285 and Muhammad Muzaffar Khan's'case PLD 1959 SC 9 ref.

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

----Arts. 4 & 5(2)---General Clauses Act (X of 1897), S. 24-A---Duty and obligation of public functionaries---Public functionaries were duty bound to act in accordance with law without fear, favour and nepotism---Public functionaries deriving authority from or under law, were obliged to act justly, fairly, equitably and reasonably without any element of discrimination within parameters of law---Duty and obligation of public functionaries to decide controversy between the parties after application of mind as was envisaged by Arts. 4 & 5(2) of the Constitution and S.24-A in General Clauses Act, 1897.

Zainyar Khan v. The Chief Engineer, WAPDA and others 1998 SCMR 2419; Messrs Airport Support Service v. The Airport Manager, Karachi 1998 SCMR 2268; Ahmed Latif Qureshi v. Controller of Examination, Board of Intermediate, Lahore PLD 1994 Lah. 3; Shaukat Ali and others v. Government of Pakistan and others PLD 1997 SC 342; Chairman R.T.A's case PLD 1991 SC 14; Manzoor Ellahi',s case PLD 1975 SC 66 and Zahid Aklltar's case PLD 1995 SC 530 ref.

Aitzaz Ahsan and Uzair Karamat Bhandari for Petitioner.

M. Hanif Khatana, Addl. A.-G. for Respondents Nos.2, 3 and 4.

Chaudhry Muhammad Suleman, Addl. A.-G. for Respondents Nos.5 and 6 with Kamran Shujah and Muhammad Akram Khan Law Officers.

Kh. Muhammad Afzal for City District Government.

Ch. Muhammad Arshad Zahid, Secretary, District R.T.A.

Ahmed Ali Kamboh, Administrator-General Bus Stand.

2005 P Cr. L J 1742

[Lahore]

Before Muhammad Nawaz Bhatti, J

HABIBULLAH---Petitioner

Versus

THE STATE and 4 others---Respondents

Criminal Revision No. 174 of 2005, decided on 21st June, 2005.

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

----Ss. 202 & 203---Purpose of inquiry---Purpose of inquiry under S.202, Cr,P.C. was to see whether sufficient material was available to put a person complained against to trial or not---Section 202, ,Cr.P.C. itself negated the assertion that each and every complaint irrespective of the merits must be got inquired into until the Court concerned would think otherwise---Such was also not the object of S.203, Cr.P.C. that in every case an inquiry must be held.

Muhammad Akram v. The State and others 1999 PCr.LJ 1725; Mushtaq Ahmad v. Muhammad Saleem and others 1995 PCr.LJ 1900 and Ghulam Muhammad v. Muzammal Khan and others PLD 1967 SC 317 ref.

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

----Ss. 200, 202, 203 & 439---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Revision---Complaint case---Dismissal of complaint---Petitioner/complainant had prayed that impugned order whereby Additional Sessions Judge had dismissed his private complaint against respondents, be set aside and Trial Court be directed to summon respondents/accused in said criminal complaint---As a matter of prudence, revisional Court could not lightly discard assessment of evidence by the Court of first instance, unless it was found palpably erroneous---Additional Sessions Judge was not bound to accept report of Inquiry Magistrate---Dismissal of complaint on the report of inquiry under S. 202, Cr.P.C. had to be taken into consideration---Scope of inquiry under S. 202, Cr.P.C. was related to finding out the truth or otherwise in complaint in order to determine whether process should be issued or not---Section 203, Cr.P.C. had laid down as to what material was to be considered for the purpose---Additional Sessions Judge while disagreeing with the report of Magistrate, was not bound to act mechanically rather he had to apply judicious mind before process was issued.

Vedilal Panchal v. Datta Traya Dulaji Ghadigaonkar and another AIR 1960 SC 1113; Pramatha Nath Talukdar and others v. Saroj Ranjan Sarkar AIR 1962 SC 876; Ali Khan v. Lai Khan and others 1984 PCr.LJ 318 and Muhammad Shafi v. Khushi Muhammad 1982 PCr.LJ 498 ref.

Rana Mehboob Ali for Petitioner.

Syed Hashmat Hussain Naqvi, vice A.-G. Punjab.

2005 P Cr. L J 1750

[Lahore]

Before Sardar Muhammad Aslam, J

IRFAN and another-Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.9576/B of 2004, decided on 12th January, 2005.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.377, 511 & 292---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Bail, grant of---Further inquiry---According to State Counsel, offence under S.12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, having been deleted, only offence remained against accused was under Ss:377, 511 & 292, P.P.C.---Allegation against accused being of an attempt to commit sodomy, his case did not fall within prohibitory clause of 5.497, Cr.P.C.---Accused was sufficiently younger in age than victim and accused had lodged F.I.R. against victim/complainant and others wherein he complained of sodomy committed with him---Possibility of securing registration of false case against accused could not be excluded on account of accused's lodging report before Police Station of occurrence much prior in time against complainant---Case of accused in circumstances being open to further inquiry, he was admitted to bail.

Zafar Iqbal Chohan for Petitioners.

Muhammad Sarwar Awan for the State.

Date of hearing: 12th January, 2005.

2005 P Cr. L J 1751

[Lahore]

Before Khawaja Muhammad Sharif, J

BAGHA alias BAGHEE---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.588/B of 2005, decided on 8th February, 2005.

Criminal Procedure Code (V of 1898)---

---- S. 497---Penal Code (XLV of 1860), Ss.302, 324 & 34---Bail, refusal of---Accused though was not named in F.I.R., but he was named in statement made on the next day of the occurrence by complainant and all three eye-witnesses---Recovery had been effected from accused who was already involved in three other cases, two of theft and one of causing hurt---Accused had been found guilty by police, challan had been submitted, charge had been framed and evidence had been summoned---No case for grant of bail having been made out, bail petition was dismissed in circumstances.

Zahid Hussain for Petitioner.

Naveed Shabbir Goraya for the State.

Khadim Hussain, A.S.-I. with record.

2005 P Cr. L J 1752

[Lahore]

Before Sh. Abdur Rashid, J

SHAHBAZ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6419/B of 2004, decided on 1st December, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.395 & 412---Bail, grant of---Delay of four months in lodging F.I.R. remained unexplained---Not mentioned in F.I.R. as to how complainant learnt about accused being one of culprits---Cash amount of R.500 though had been recovered from accused upon his arrest, but it could not be stated with judicial certainty that said cash amount was snatched by accused during occurrence because it was highly unlikely that accused after snatching said cash amount would keep same in his custody unspent in order to produce before Police after he was arrested---Facts mentioned in F.I.R. itself had made case of accused regarding his involvement in occurrence, matter of further inquiry---Accused was admitted to bail, in circumstances.

Zafar Iqbal Chowhan for Petitioner.

Malik Muhairunad Aslam Khokhar for the State with Sabir Hussain, A.S.-I. with record.

2005 P Cr. L J 1754

[Lahore]

Before Sh. Javaid Sarfraz, J

BASHIR AHMAD and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 11-95/B of 2005, decided on 3rd June, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Bail, grant of---Despite the case having been registered six and a half months back, police had not so far obtained the Chemical Examiner's report regarding the liquor allegedly recovered from the accused---Case, thus, needed further probe into the guilt of accused as contemplated under S.497(2), Cr.P.C.---Offence under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, was bailable whereas under Art.3(1) thereof the offence did not fall within the prohibitory clause of S.497(1), Cr.P.C.---In bailable offence accused were entitled to bail as a right and in offences not falling within the prohibitory clause of S.497, Cr.P.C. grant of bail was a rule and its refusal an exception---Accused were admitted to bail in circumstances.

PLD 1995 SC 34 ref.

Syed Salah-ud-Din Gillani for Petitioners.

M. Yousuf Syed for the State with Abdul Rashid, S.-I. with record.

2005 P Cr. L J 1756

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ARIF and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 1163 and 499/J of 2003, decided on 24th March, 2005.

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

----S. 365-A/34---Appreciation of evidence---Delay in lodging F.I.R., which otherwise, was explained, was of no consequence and defence could not get any benefit out of that---Non-production of alleged abductee in Court was also of no consequence because she was only 3-1/2 years old and it was not possible for her to make a statement either before police or before Trial Court---Statements of two material witnesses, who were not proved to have any animosity with accused, were confidence inspiring---Prosecution had proved its case against said accused beyond any shadow of doubt---Conviction and sentence awarded to him by Trial Court was maintained and his appeal was dismissed.

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

----Ss. 365-A & 34---Appreciation of evidence---Case against accused being of doubtful nature, he was granted benefit of doubt---Appeal to his extent was accepted and conviction and sentence awarded to him by Trial Court, was set aside and he was released.

Dr. Sh. Magsood Ahmad Qadri for Appellant (in Criminal Appeal No. 1163 of 2003).

Ijaz Ahmad Bajwa for Appellant (in Criminal Appeal No.499/J of 2003) at State expenses.

Mian Muhammad Aslam for the State.

Date of hearing: 24th March, 2005.

2005 P Cr. L J 1760

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD ABBAS---Petitioner

Versus

THE STATE and others---Respondents

Writ Petition No. 4227 of 2004/BWP, decided bn 31st January, 2005.

(a) Islamic Law-----

----Marriage---Marriage contracted during the period of "Iddat" is invalid and not even irregular.

Allah Dad v. Mukhtar 1992 SCMR 1273 ref.

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

----Art. 199---Criminal Procedure Code (V of 1898), S.491---Constitutional jurisdiction---Scope---High Court while sitting in Constitutional jurisdiction does not function in vacuum and it must take due notice of prevailing social and moral environments prevailing in community, such as tendency on the part of some young men to abuse provisions of S.491, Cr.P.C. in furtherance of their illicit love affairs.

Shaukat Ali v. Altaf Hussain Qureshi and another 1972 SCMR 398 ref.

(c) 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., refusal of---Accused had neither in the earlier writ petition nor in the present writ petition disclosed the factum of his being married with the real maternal-aunt of his wife, both females of prohibited degree, nor the fact of alleged divorce given by him to the said maternal-aunt before entering into marriage with. his wife was disclosed---If the claim of accused of having divorced the maternal-aunt of his wife be admitted, even then his marriage with his wife before the expiry of Iddat of her real maternal-aunt was not valid ---Mala fide of the accused by concealing the said important facts had made the petition liable to be dismissed---Accused had filed the frivolous petition with the object of furtherance of his illicit affair with the aforesaid alleged wife and he had not only wasted the precious time of the Court, but had also acted in a most unfair and immoral manner---Constitutional petition was dismissed with costs of Rs.5,000 in circumstances.

Abdul Waheed Ropari v. Asma Jehangir PLD 2004 SC 219; Allah Dad v. Mukhtar 1992 SCMR 1273; Shaukat Ali v. Altaf Hussain Qureshi and another 1972 SCMR 398 and Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 ref.

Ghulam Abbas Baloch for Petitioner.

Muhammad Asif Rasheed for Respondents.

2005 P Cr. L J 1764

[Lahore]

Before Muhammad Sayeed Akhtar, J

ZAFAR ULLAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2174/13 of 2005, decided on 26th April, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 16---Bail, grant of---Further inquiry---No evidence had been recorded by Trial Court---Veracity of both `Nikahnamas' was yet to be determined by Trial Court--- Alleged abductee claimed to be wife of accused---Case was that of further inquiry, in circumstances---No useful purpose would be served by keeping accused behind the bars.

Rai Muhammad Tufail Khan Kharal for Petitioner.

Ch. Jamshed Hussain, A.A.-G. with Muneer Ahmad, A.S.-I. for Respondents.

Date of hearing: 26th of April, 2005.

2005 P Cr. L J 1765

[Lahore]

Before Muhammad Nawaz Bhatti, J

ALLAH DITTA---Petitioner

Versus

THE STATE and 2 others---Respondents

Writ Petition No.3672 of 2004, decided on 31st May, 2005.

Criminal Procedure Code (V of 1898)---

----S. 514---Penal Code (XLV of 1860), Ss.324/452/427/337-L(ii)/148/149---Constitution of Pakistan (1973), Art.199 --Constitutional petition--- Order issuing warrant for attachment and sale of property of the petitioner surety for recovery of entire amount of Rs.50,000 of penalty, challenged---Although the accused for whom the petitioner had stood surety was declared innocent during investigation and challaned in Column No.2, yet he was bound to attend the Court on each and every date of hearing of pre-arrest bail till its final disposal---However, accused after having been declared innocent by the police, due to some misunderstanding, failed to attend the Court to pursue his bail petition---Balance should have been kept between undue leniency and undue severity by taking into consideration the financial status of the petitioner as well as the facts of the case---Impugned orders did not call for any interference and the same were maintained and the Constitutional petition was dismissed accordingly---However, in view of the peculiar circumstances of the case, the amount of penalty was reduced from Rs.50,000 to Rs.25,000 in the interest of justice.

Lal v. The State 1x990 PCr.LJ 1371 and Muhammad Khan v. The State 1986 PCr.LJ 1028 ref.

Mehr Haq Nawaz Humayun for Petitioner.

Syed Hashmat Hussain Naqvi vice A.-G., Punjab.

2005 P Cr. L J 1768

[Lahore]

Before Rustam Ali Malik, J

SAJID and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1784/13 of 2005, decided on 26th April, 2005.

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

----S. 498---Penal Code (XLV of 1860), Ss.337-F(iv). 337-F(i), 337-A(i), 337-L(ii) & 34---Pre-arrest bail, grant of---One of accused persons though was named in F.I.R. as one of culprits, but he was stated to be about 70 years of age---Accused had himself received as many as seven injuries on his person during occurrence and had submitted application before S.H.O. for registration of case against complainant party---Said accused, who himself was injured in occurrence and was an aged and infirm person, was entitled to concession of bail---Pre-arrest bail earlier granted to him was confirmed.

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

----S. 498---Penal Code (XLV of 1860), Ss.337-F(iv), 337-F(i), 337-A(i), 337-L(ii) & 34---Pre-arrest bail, refusal of---Two accused persons were specifically named in F.I.R. and a specific role was attributed to them---One of said accused was allegedly armed with an Iron Rod at the time of occurrence with which he gave a blow on head of brother of complainant and had given second blow on his face and thereafter another below on the right side of his face---Second accused person was allegedly armed with an Iron Pipe at the time of occurrence and had hit injured below his right eye and had given another blow on his head---Accused had also given a blow with the Iron Pipe on back of injured prosecution witness---Even though there was cross-version of occurrence in the case, but under peculiar circumstances of the case, said accused did not appear to be entitled to extraordinary concession of pre-arrest bail---Pre-arrest bail earlier granted to said accused persons was withdrawn, in circumstances.

Zafar Iqbal Chowhan for Petitioners.

Ahmed Khan Nizami for the Complainant.

Saif Ullah Khalid for the State.

Date of hearing: 26th April, 2005.

2005 P Cr. L J 1770

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Mst. TASLIM MAI---Petitioner

Versus

STATION HOUSE OFFICER. POLICE STATION KHAN GARH, DISTRICT MUZAFFARGARH and another---Respondents

Writ Petition No.2933/Q of 2005, decided on 15th June, 2005.

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

----S. 16---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Evidence of enticement of the petitioner collected by the police had categorically been denied by her---Woman could not be accused of her own abduction, enticement or elopement---Petitioner had already filed a suit for dissolution of marriage against the complainant and the possibility of registration of the false F.I.R. subsequently, by him could not be ruled out---Petitioner, the alleged abductee, had denied the allegation of her abduction as well as the contents of the F.I.R.---Petitioner could not be forced to live with the complainant as his wife against her wishes who was sui juris, by use of criminal. process of law---No offence, prima facie, having been made out, continuation of further proceedings under the impugned F.I.R. would be abuse of process of law, as the same could not be allowed to be used as a lever for putting pressure on the petitioner to live with the complainant ---F.I.R. was quashed in circumstances.

Syed Irfan Haider Shamsi for Petitioner.

Rana Mehboob Ali for Respondent No.2.

M.R. Khalid Malik, Addl. A.-G. for the State along with Munir Hussain, A.S.-I. with record.

2005 P Cr. L J 1773

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

ALI MURTAZA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1252/B of 2005, decided on 24th March, 2005 .

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

----S. 498---Penal Code (XLV of 1860), S. 489-F---Pre-arrest bail, grant of---Fact that accused had issued a cheque, stood established from the record, investigation of case was complete and challan had been submitted before Trial Court---During investigation nothing was recovered from accused and he was no more required for any further investigation---Offence allegedly committed by accused was punishable only with three years' R.I. which did not fall within the prohibitory clause of S.497, Cr.P.C.---Grant of bail in such-like cases was a rule and refusal was an exception---Ad interim pre-arrest bail already granted to accused was confirmed against same surety bond.

Zahid Hussain Kharl for Petitioner.

Muhammad Khalid Kashmiri for the Complainant.

Malik Khalid Akmal for the State.

Ghulam Abbas, A.S.-I.

2005 P Cr. L J 1774

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD RAMZAN alias DHURLA---Petitioner

Versus

THE STATE --- Respondent

Criminal Miscellaneous No.1 of 2005 in Criminal Appeal No.43 of 2004, decided on 18th April, 2005.

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

----S.426---Penal Code (XLV of 1860), Ss.302, 201 & 34---Suspension of sentence pending appeal---Appreciation of evidence---Dead body which was recovered from reeds with National Identify Card lying nearby, was in form of headless skeleton---According to Doctor death must have taken place one to two months to reach the stage of putrefaction in which it had been found---Nothing was on record to establish identity of the deceased---Accused was convicted on joint extra-judicial confession---Material on basis of which conviction of accused had been recorded, needed reappraisal at the time of final hearing of appeal, which was likely to take some time---Sentence awarded to accused was suspended, in circumstances.

Malik Amir Ahmad Joya for Petitioner.

Tanvir Ahmad Shami for the State.

Date of hearing; 18th April, 2005.

2005 P Cr. L J 1776

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD ALLAUDDIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.301 and Criminal Revision No.224 of 1999, heard on 26th May, 2005.

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

----S. 382-B---Penal Code (XLV of 1860), S.302(b)---Benefit of S.382-B, Cr.P.C., grant of---Defence counsel did not challenge the conviction and sentence of accused in appeal and simply prayed for calculation of the period served by him as under-trial prisoner towards his sentence---Benefit of S.382-B, Cr.P.C. had been refused to accused by the Trial Court on the ground that he had been hampering with the disposal of the case by adopting delaying tactics---Provisions of S.382-B, Cr.P.C. being mandatory in nature the same could not be disallowed to the accused for the reason that he was responsible for delay in the trial, because what purpose was derived by him out of it except that he remained behind the bars---Accused had been sentenced to imprisonment for life which being the maximum period of imprisonment provided by the offence, period undergone by him as under-trial prisoner should have been counted towards his sentence awarded by the Trial Court as denial of the same would amount to bind him to serve more sentence provided for the offence by the law---Accused was awarded benefit of S.382-B, Cr.P.C. accordingly.

Aloo v. The State 2000 SCMR 1655 ref.

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

---S. 382-B---Period of detention to be considered while awarding sentence of imprisonment---Sentence---Principles---Accused cannot be bound to serve the sentence more than provided for the offence by the law, by refusing him the benefit of S.382-B, Cr.P.C.

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

----S. 302(b)---Sentence---Enhancement refused---Occurrence was the result of sudden flare up without any premeditation---Accused was aged 24/25 years and he had only fired a single shot---Accused and the deceased were closely related to each other and had no previous enmity---Sentence of imprisonment for life of accused was not enhanced to death in circumstances.

Sahibzada Farooq Ali for Appellant.

Rao Atif Nawaz for the State.

Muhammad Siddique Dogar for the Complainant.

Date of hearing: 26th May, 2005.

2005 P Cr. L J 1779

[Lahore]

Before Rustam Ali Malik and Sardar Muhammad Aslam, JJ

MUHAMMAD FAROOQ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1218/13 of 2005, decided on 15th March, 2005.

Criminal Procedure Code (V of 1898)-

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Bail, grant of---On personal search of accused, 500 grams of Charas had allegedly been recovered from his possession---Case of accused did not fall within prohibitory clause of S.497, Cr.P.C.---Accused was admitted to bail in circumstances.

Zafar Iqbal Chohan for Petitioner.

Arif Saleh Gill for the State.

Date of Hearing: 15h March, 2005.

2005 P Cr. L J 1780

[Lahore]

Before Muhammad Nawaz Bhatti, J

Mst. SYEDAN BIBI---Petitioner

Versus

DISTRICT AND SESSIONS JUDGE, KHANEWAL and 2 others---Respondents

Criminal Revision No. 80 of 2005, heard on 24th May, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 491 & 439---Revision---Custody of the minors---Father of the minors had contracted second marriage and therefore, welfare of the minors did not lie with him---However, at the same time custody of the minors with their real father was not illegal and the Sessions Judge under S.491, Cr.P.C. had rightly exercised his power while dismissing the petition of the mother of the minors for their custody and directing her to approach the Guardian Judge for redressal of her grievance---Revision petition filed by the mother was dismissed accordingly with the observation that she might approach the Guardian Judge for the custody of the minors, if so advised.

Mst. Musarrat Parveen v. Muhammad Akram 1991 PCr.LJ 878 rel.

Nisar Muhammad and another v. Sultan Zari PLD 1997 SC 852 ref.

Abdul Aziz Khan Niazi for Petitioner.

Malik Aftab Abbas Khan for Respondent No.3.

Date of hearing: 24th May, 2005.

2005 P Cr. L J 1782

[Lahore]

Before Sardar Muhammad Aslam, J

ANSAR ABBAS---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.9352/B of 2004, decided on 18th January, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code. (XLV of 1860), Ss. 324 & 452---Pre-arrest bail, refusal of---Accused had not disclosed in his bail application factum of dismissal of his earlier bail petitions twice before Trial Court as well as before High Court---Bail petition was dismissed for such concealment.

Khawar_Mehmood for Petitioner.

Zafar Iqbal Chowhan for the Complainant.

Azhar Abbas Kazim along with Muhammad Riaz, A.S.-I. with record.

Date of hearing: 18th January, 2005.

2005 P Cr. L J 1783

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD NAZIR---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No. 575 of 2004, heard on 30th June, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 540 & 439---Penal Code (XLV of 1860), Ss.409/420/467/468/471---Revision---Complainant not allowed to be summoned for cross­ examination---Such valuable right of accused not to be taken away on trivialities ---Accused's right to cross-examine the complainant had been closed by the Trial Court only because he had applied for adjournment but he had not appended the cause list of the High Court in order to support his claim that his counsel had to appear in the High Court---Right to cross-examine a witness had to be guided by equitable and fair conditions and such valuable right of accused could not be taken away on trivialities---Production of defence counsel was not a facility as observed by the Trial Court, but was a cherished and valuable Constitutional right of an accused person---Impugned order dismissing the application of accused under S.540, Cr.P.C. for summoning the complainant for cross-examination, was set aside with the direction to Trial Court to afford a reasonable opportunity to accused to cross-examine the complainant---Revision petition was allowed accordingly.

Rafique Javed Butt for Petitioner.

Ch. Aamir Rehman, Addl. A.-G. for the State.

Muhammad Ishtiaq, A.S.-I. Police Station Cantonment Sargodha.

Date of hearing: 30th June, 2005.

2005 P Cr. L J 1785

[Lahore]

Before Rustam Ali Malik, J

ALLAH NAWAZ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.606/13 of 2005, decided on 18th March, 2005.

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

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, refusal of---Trial of case was underway and statements of as many as four prosecution witnesses had already been recorded---Was not appropriate to grant bail to accused at the stage when trial had commenced and statement of alleged eye-witnesses were yet to be recorded---Direction was issued to Trial Court to expedite proceedings of trial.

Inayat Ullah Khan Niazi for Petitioner.

Zafar Iqbal Chohan for the Complainant.

Mian Muhammad Bashir for the State.

Date of hearing: 18th March, 2005.

2005 P Cr. L J 1786

[Lahore]

Before Muhammad Nawaz Bhatti , J

Mehr MUHAMMAD YOUSAF---Petitioner

Versus

ADDITIONAL DIRECTOR, A.C.E., MULTAN---Respondent

Writ Petition No.967/Q of 2005, decided on 12th July, 2005.

Penal Code (XLV of 1860)---

----Ss. 420 & 109---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal Procedure Code (V of 1898), S.249-A---Punjab Anti-Corruption Establishment Rules, 1985, R.6---Constitution of Pakistan (1973), Art. 199 --- Constitutional petition ---Maintainablity---Quashing of F.I.R.---Petitioner/accused through Constitutional petition had sought quashing of F.I.R. registered against him---Petitioner had not joined preliminary inquiry conducted against him and he was declared proclaimed offender---Petitioner even did not bother to appear before Trial Court to defend himself and trial was lingering on due to his irresponsible conduct---Absconder would lose his right of audience---Even otherwise, challan in case had been submitted in the Court of competent jurisdiction and petitioner had an alternate remedy for redressal of his grievance under S.249-A, Cr.P.C.---Propriety demanded that petitioner should have approached Trial Court first which being in possession of whole evidence collected by prosecution during investigation, would be in a better position to appreciate grounds taken in the Constitutional petition---Even otherwise issuing a writ under Art.199 of the Constitution was discretionary and Court had to be satisfied first regarding the matter---Alternate remedy being available to petitioner, Constitutional petition filed by him, was not maintainable.

Iftikhar Ahmad v. S.H.O. and others PLD 2001, Lah. 399; Mairaj Begum v. Ejaz Anwar and others PLD 1982 SC 294; Ghulam Muhammad v. Muzammal Khan and others PLD 1967 SC 317; Kh. Fazal Karim v. State and another PLD 1976 SC 461; Malik Khalid Mehmood v, Inspector-General of Police, Punjab and others 2002 PCr.LJ 1613 and Fida Hussain. v. The State 1975 SCMR 150 ref.

Sardar Tariq Sher Khan for Petitioner.

Zafar Ullah Khan Khakwani, A.A.-G.

Abdul Ghaffar Joya, Deputy Director, A.C.E., Multan.

Muhammad Aslam Circle Officer, A.C.E., D.G. Khan.

2005 P Cr. L J 1789

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD SALEEM AKHTAR---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION CHOTIANA and 3 others -Respondents

Writ Petition No.4858 of 2005, decided on 5th July, 2005.

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

----Ss. 452/354/420/468/471/419/148/149---Criminal Procedure Code (V of 1898), S.154---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of second F.I.R.---First F.I.R., after its registration, was duly investigated and was proposed to be cancelled by the Investigating Officer, which was cancelled by the Magistrate---Complainant, thereafter, could have filed a private complaint or could have further challenged the order of cancellation, but he, by ignoring these remedies opted to register a second F.I.R. after about six months---Second F.I.R. was verbatim reproduction of the first F.I.R.---Once the accused had been declared to be innocent, having not committed any cognizable offence, provisions of S. 154, Cr.P.C. were not available for re-embarking upon the matter on the same facts and allegations---However, had there been any malpractice by the police or anybody else in registration of the first F.I.R., subsequent registration of the case could have been made, but no such circumstance had cropped up in the present case--,-Registration of the second F.I.R. on the face of it was misuse of process of law and the same was quashed accordingly.

Ch. Waheed-uz-Zaman v. Jamil and others 1997 PCr.LJ 1167; Wajid Ali Khan Durani and others v. Government of Sindh and others 2001 SCMR 1556 and Jamshed Ahmed v. Muhammad Akram Khan and another 1975 SCMR 149 ref.

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

----Ss. 154 & 173---Second F.I.R., registration of---Second F.I.R. is not permissible on the basis of same occurrence, facts and allegations, especially when the earlier F.I.R. stood cancelled on the police report under S.173, Cr.P.C.

Ch. Waheed-uz-Zaman v. Jamil and others 1997.PCr.LJ 1167 and Jamshed Ahmed v. Muhammad Akram Khan and another 1975 SCMR 149 ref.

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

----S. 154---Subsequent F.I.R., registration of---Had there been any malpractice by the police or anybody else in registration of the first F.I.R., subsequent F.I.R. could be registered in the matter.

Wajid Ali Khan Durani and others v. Government of Sindh and others 2001 SCMR 1556 ref.

Syed Zulfiqar Ali Bokhari for Petitioner.

M.A. Ghaffar-ul-Haq for Respondents.

2005 P Cr. L J 1791

[Lahore]

Before Asif Saeed Khan Khosa, J

GHULAM MUSTAFA---Petitioner

Versus

MUHAMMAD REHTAS KHAN and another---Respondents

Criminal Miscellaneous No.9296/BC of 2004, decided on 15th February, 2005.

Criminal Procedure Code (V of 1398)---

---Ss. 497(5) & 498---Penal Code (XLV of 1860), Ss.324 & 337-F(ii)---Petition for cancellation of pre-arrest bail ---F.I.R. itself showed, that respondent/accused had fired at victim outside his own house in early hours of morning ---D.S.P./S.D.P.O. had found that complainant party's version regarding alleged motive as well as main occurrence was false and that respondent/accused had acted in exercise of right of private defence as alleged victim had entered the house of accused in early hours of morning in furtherance of illicit liaison with wife of accused---Tenor of order passed by Trial Court had shown that prima facie version of complainant party of alleged incident was not found by Trial Court to be bona fide and in such circumstances Trial Court deemed it proper to admit accused to pre-arrest bail- Consideration for grant of bail and those for cancellation, were entirely different---No argument had been addressed by petitioner/complainant regarding any misuse or abuse of concession or bail by respondent/accused ---Challan of the case had already been submitted before Trial Court after completion of investigation---Weapon of offence had been recovered from possession of accused and his arrest was no longer required by police in connection with investigation---Bail of accused could not be cancelled merely for wreaking vengeance of complainant party on accused---Even otherwise High. Court generally was slow in cancelling bail of accused after completion of investigation and submission of challan---Petition for cancellation, of bail, was dismissed in circumstances.

Zia Ullah Khan Niazi for Petitioner.

Zafar Iqbal Chohan for Respondent No.1

Miss Noreen Fatima with Hameedullah, S.-I. with record.

Date of hearing; 15th February, 2005.

2005 P Cr. L J 1794

[Lahore]

Before Muhammad Nawaz Bhatti, J

Malik MUHAMMAD ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.263/M of 2005, decided on 27th June, 2005.

Criminal Procedure Code (V of 1898)-

---S. 561-A---Penal Code (XLV of 1860), Ss.379, 468, 471, 420 & 406---Police Rules, 1934, Vol.III, Chap.25, R.25.56---Quashing of order---Petitioner had assailed order passed by Magistrate whereby he agreed with cancellation report submitted by Investigating Officer in the case and petitioner had prayed for setting aside same and had also sought direction to S.H.O. concerned to proceed with investigation of case and to act under R.25.56 of Chap.25, Vol.III of Police Rules, 1934---Petitioner had further alleged that impugned order was passed behind his brick in violation of principles of natural justice and fair play and that impugned order was passed on wrong premises of law and facts involved in the case---Order in question was passed after about nine years of registration of case---Case was investigated by investigating agency and same was sought to be cancelled, cancellation report was prepared which was agreed to by Magistrate vide impugned order---During course of investigation it appeared that accused had not prepared any forged document---Magistrate had passed speaking order which did not call for any interference---Petition being without any substance, stood dismissed.

Arif Ali khan and another v. The State and others 1993 SCMR 187 and Bahadur and another v. The State and another PLD 1985 SC 62 ref.

Ch. Pervaiz Aftab for Petitioner.

Mubashar Latif Gill, A.A.-G. for the State.

Shaukat Ali, S.-I.

2005 P Cr. L J 1797

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD KHAN -Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2097/B of 2005, decided on 4th July, 2005.

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

---S. 497---Penal Code (XLV of 1860), Ss.324/337-F(i)/337-L(1)/l48/149/109---Bail, refusal of---High Court already had not only declined the pre-arrest bail to accused on account of lack of mala fides, but the merits of the case had also been taken into consideration---If pre-arrest bail was refused to an-accused person on merits and not simply on account of lack of mala fides, the post-arrest bail could also not be granted to him---Even otherwise, the accused in the investigation conducted by the D.S.P. on the orders of High Court, had been found to be a great schemer and he had manoeuvred the murderous assault on the complainant party with perfection ---Challan had been submitted in the Trial Court and delay in commencement of trial had so far been occasioned due to the conduct of the accused himself who had, been running away from justice for more than thirteen months---Injured, a young man of 23/24 years of age, had been rendered paralyzed waist downwards on account of the injuries received by him and was now bed-bound---Provisions of S.324, P.P.C. attracted the prohibitory clause of S.497(1), Cr.P.C.---Bail was declined to accused in circumstances.

Sher Khan v. The State 2003 PCr.LJ 1149; Bashir Ahmad and 2 others v. The State 1994 SCMR 1147; Wajid Ali v. Mumtaz Ali Khan and another 2000 MLD 1172; Hafiz Abdul Malik v. The State 2000 MLD 1808 and Muhammad Nawaz V. The State 1990 ALD 650 ref.

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

----S. 497---Bail---Principles---Post-arrest bail not to be granted after refusal of pre-arrest bail on merits---Where pre-arrest bail is declined on merits and not simply on account of lack of mala fides, post-arrest bail can also not been granted.

Muhammad Nawaz v. The State 1990 ALD 650 ref.

A.G. Tariq Chaudhry for Petitioner.

Azam Nazeer Tarar for the Complainant.

Ms. Raeesa Sarwat for the State with Muhammad Nawaz A.S.-I.

2005 P Cr. L J 1803

[Lahore]

Before Syed Shabbar Raza Rizvi, J

JAVED AHMAD and 5 others---Petitioners

Versus

THE State and 2 others---Respondents

Writ Petition No. 11171 of 2005, decided on 20th July, 2005.

Penal Code (XLV of 1860)---

---Ss. 420, 468, 471 & 419---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing or F.I.R.---Question involved in the case was determination of certain facts; firstly, whether document for cancellation of agreement to sell was forged one; secondly, if said document was forged, who forged it; and thirdly, what was the exact date of forgery---Said three questions needed a thorough investigation which was neither permissible nor possible for High Court under the Constitutional jurisdiction---Authority to investigate a criminal case vested in police and not in the High Court---Constitutional petition was disposed or with direction to S.P. Investigation to investigate to determine the three points---Parties could proceed further in the wake of outcome of such investigation.

Muhammad Shafi v. Deputy Superintendent of Police, Narowal and 5 others PLD 1992 Lah. 178; Brig. (R) Imtiaz Ahmad v. Government of Pakistan 1994 SCMR 2142 and Emperor v. Khawaja Nazir Ahmad AIR (32) 1945 PC 18 ref.

Muhammad Kazim Khan for Petitioner.

Rana Muhanunad Arif for Respondent No.3.

2005 P Cr. L J 1809

[Lahore]

Before Muhammad Nawaz Bhatti, J

ALI RAZA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.293/M of 2005, decided on 4th July, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 397 & 35---Penal Code (XLV of 1860), Ss. 381-A, 420, 468 & 471---Conviction and sentence in different cases---Running sentences concurrently---Accused was convicted and sentenced in five cases, but Trial Court while awarding sentences to petitioner, had not mentioned whether sentences awarded to accused in the different five cases would run concurrently or consecutively---Contention of accused was that where there was no such mentioning, sentences would run concurrently---High Court accepting petition, set aside orders passed by Courts below and directed that sentences awarded to accused would run concurrently.

Nagappa Vyankappa Sali v. Emperor AIR 1931 Bom. 529(1); Jainta Kcanar Banerjee v. The State AIR 1955 Cal. 632; Sanaf Gul alias Sunny v. The State 2005 PCr.LJ 370 and Muhammad Asif v. The State PLD 2003 Lah. 512 ref.

Muhammad Arif Alvi for Petitioner.

Mubashar Latif Gill, A.A.-G. for the State.

2005 P Cr. L J 1812

[Lahore]

Before Ijaz Ahmad Chaudhry, J

GUL MUHAMMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.98 of 2005, decided on 6th April, 2005.

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

----S. 382-B---West Pakistan Arms Ordinance (XX of 1965), S.13---Benefit of S.382-B, Cr.P.C., grant of---Courts, while awarding sentence of imprisonment to an accused, were under obligation to consider the period already undergone by him as under-trial prisoner---Impugned judgment did not indicate that lesser punishment had been awarded to accused in the case keeping in view his earlier detention---Relief under S.382-B, Cr.P.C. could not be denied to accused on the ground, taken by the Courts below, of having used the weapon of offence in a heinous offence of road side dacoity, as it would bind the accused to serve the sentence over and above awarded to him---Benefit of S.382-B, Cr.P.C. was awarded to accused accordingly.

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

----S. 382-B---Period of detention to be considered while awarding sentence of imprisonment---Provision mandatory---Courts are under obligation to take into consideration the period already undergone by an accused as under-trial prisoner, while awarding him sentence of imprisonment.

Bashir Ahmad Chaudhry for Petitioner.

M.R. Khalid Malik, Addl. A.-G. on Court's call.

2005 P Cr. L J 1814

[Lahore]

Before Sh. Javaid Sarfraz, J

MUHAMMAD AFZAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1047/B of 2005, decided on 24th May, 2005.

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

----S. 497---Prevention of Corruption Act (II of 1947), S.5(2)---Penal Code (XLV of 1860), S.161---Bail, grant of---Bribe amount at the time of raid was not recovered from the accused, but was recovered from another person present in the room---Said person had filed an affidavit and also made a statement before the Special Court to the effect that the said amount was paid to him by the complainant---Case of further inquiry, thus, was made out by the accused---Accused was behind the bars for the last two months and ten days where he could not be kept for an indefinite period---Bail could not be refused to accused as a punishment---Trial of accused would-take a long time to conclude---Offences did not fall within the prohibitory clause of S.497(1), Cr.P.C. and grant of bail in such cases was a rule and refusal thereof was an exception---Accused being a Government servant was not likely to abscond---Bail was allowed to accused in circumstances.

1995 MLD 766; 2003 PCr.LJ 175; 2000 PCr.LJ 1903 and PLD 1995 SC 34 ref.

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

---S. 497---Prevention of Corruption Act (II of 1947), S.5(2)---Penal Code (XLV of 1860), S.161---Bail---Principle---When offences do not fall within the prohibitory clause of S.497(1), Cr.P.C., accused is entitled to grant of bail---Grant of bail in such-like cases is a rule and its refusal is an exception.

PLD 1995 SC 34 rel.

Nafees Ahmad Ansari for Petitioner.

Muhammad Shahzad Khan for the State with Sajjad Hussain, A.S.-I., Police Station Anti-Corruption Establishment, Multan.

2005 P Cr. L J 1816

[Lahore]

Before Ijaz Ahmad Chaudhry, J

AKBAR ALI---Petitioner

Versus

NAZIM HUSSAIN and 2 others---Respondents

Criminal Miscellaneous No.221/CB of 2004, decided on 18th May, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 497(5) & 498---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11---Pre-arrest bail, cancellation of---Birth certificate of the child born to the first wife of the accused from him and m n-sending of the copy of the divorce deed to the Union Council by the accused; had falsified his stand of having divorced the first wife prior to contracting second marriage with her real sister---Both the accused respondents were guilty of having contracted a void marriage, because a person could not contract Nikah with two real sisters at the same time--Grant of pre-arrest bail to the accused had hampered the investigation---Living of the accused together would amount to continuation of commission of Zina-bil-Raza by them---Conduct of the accused had disentitled them to grant of bail before arrest as both, prima facie, were guilty of an immoral act by deceiving the earlier wife and other close relatives---Pre-arrest bail granted to accused was cancelled in circumstances.

Mian Ahmad Mahmud for Petitioner.

Sh. Muhammad Raheem for Respondents Nos. 1 and 2.

Muhanunad Sarwar Awan for the State.

Shabbir Ahmad, A.S.-I.

2005 P Cr. L J 1819

[Lahore]

Before Sh. Javaid Sarfraz, J

Mst. MALOOKAN and another---Petitioners

Versus

THE STATE and 2 others---Respondents

Writ Petitions Nos.2436/Q and 2635 of 2005, decided on 31st May, 2005.

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

----Ss. 16/10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Lady accused appeared in the Court and categorically stated that she was neither abducted by her previous husband or by any other, person, nor anybody had committed Zina with her---Father of the said lady had also stated that she was residing with him ever since her present husband had turned her out of his house--Case against accused had also been found false in police investigation---False and frivolous F.I.R. had been lodged in the case with mala fide intention and ulterior motives---Conviction in the case was not possible and further investigation, if allowed to continue, would serve no purpose except causing harassment to the petitioner---F.I.R. was quashed in circumstances.

Muhammad Ashraf Qureshi for Petitioners.

Rana Sajjad Ahmad Noon for Respondent No.3.

2005 P Cr. L J 1821

[Lahore]

Before Fazal-e-Miran Chauhan, J

MUNAWAR IQBAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.536/B of 2005, decided on 29th March, 2005.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.399/402/170/171---Bail, grant of---Prosecution material did not indicate whether the accused had made any pre-preparation for committing the offence as contemplated under S.399, P.P.C.---Mere presence of accused along with his co-accused at a specific place did not constitute an offence under S.399, P.P.C. and S.402, P.P.C.---Case of accused, thus, required further probe as envisaged by S.497(2), Cr.P.C.---Accused was not a previous convict and his trial was not likely to commence soon---Bail was allowed to accused in circumstances.

1999 MLD 1840 and 2003 PCr.LJ 1839 ref.

M. Meharban Ranjha for Petitioner.

Ch. M. Akram, State Counsel with Karam Hussain, S.-I. Police Station "A" Division, D.G. Khan.

2005 P Cr. L J 1823

[Lahore]

Before Rustam Ali Malik and Sardar Muhammad Aslam, JJ

FAZAL ABBAS---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.353 of 2005, heard on 18th July, 2005.

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

----S. 9(b)---Conviction recorded on confession---Validity---Accused had neither denied his confession in memo. of appeal nor before the Court---Accused had admitted his guilt on his own without any pressure, coercion, inducement or promise and he could not turn around now to question his admission and wriggle out of it---Heroin weighing 507 grams was recovered from the possession of accused---Report of Chemical Examiner was positive---Sentence of two years' R.I. with a fine of Rs.3,000 was neither harsh nor excessive---No appeal was provided against conviction based on confession except to question the quantum of sentence---Accused, thus, was not entitled to challenged legality of the sentence---Appeal was dismissed accordingly.

Khizar Hayat alias Khiru v. The State 2001 MLD 1145; Muhammad Jehangir v. The State and another 1999 MLD 2450; Shera v. The State 1991 PCr.LJ 365; Nazir Ahmad v. The State PLD 1975 Lah. 304 and Jehanzeb v. The State and another 2002 PCr.LJ 1929 ref.

Malik Muhammad Imtiaz Mahal for Appellant.

Syeda Huma Kaukab Bukhari for the State.

Date of hearing: 18th July, 2005.

2005 P Cr. L J 1825

[Lahore]

Before Syed Shabbar Raza Rizvi, J

SHAUKAT ALI alias BOOTA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4421/B of 2005, decided on 20th July, 2005.

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---Complainant/ alleged victim in her statement recorded by Magistrate under S. 164, Cr.P.C. had clearly stated that she was neither abducted by accused nor subjected to Zina by him; that her signatures were obtained on plain papers on the promise that some land would be transferred in her name and that she made an application that the case be cancelled against the accused---Since investigation in the case was complete and accused was not required for the purpose of investigation or for recovery, no useful purpose would be served if he was kept in imprisonment---Accused was already behind the bars since his arrest---In view of statement of complainant/alleged victim under S.164, Cr.P.C., sufficient grounds were available to believe that case against accused was of further inquiry---Accused was admitted to bail in circumstances.

Hafiz Muhammad Hanif Zafar for Petitioner.

Naveed Shabbir Goraya for the State.

Shaukat Ali, A.S.-I.

2005 P Cr. L J 1827

[Lahore]

Before Asif Saeed Khan Khosa, J

SAIF ULLAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5300/B of 2005, decided on 28th July, 2005.

Criminal Procedure Code (V of 1898)---

---S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324 & 34--Bail, grant of---Further inquiry---Accused who was empty-handed, had not caused any injury to any person' during the alleged occurrence--- F.I.R. showed that accused had raised only a Lalkara and had done nothing more---Complainant party itself had approached the place of occurrence---During investigation, a cross-version had been advanced by accused party according to which, it was complainant party who was the aggressor and had caused injuries to two persons belonging to accused party including accused himself---Injuries sustained by accused during same occurrence had been completely suppressed in the F.I.R.---Accused was not directly connected with the motive set up in F.I.R. ---Question regarding sharing of common intention by accused with his co-accused as also question regarding vicarious liability for offences allegedly committed by his co-accused, were questions which required further inquiry within purview of subsection (2) of S.497, Cr.P.C. --Accused was admitted to bail in circumstances.

Rai Zamir-ur-Hassan for Petitioner.

Muhammad Naveed Shabbir Goraya for the State with Muhammad Hussain A.S.-I. with record.

2005 P Cr. L J 1829

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and M. Naeem Ullah Khan Sherwani, JJ

ABDUL WAHEED---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 184, 381 and Murder Reference No. 102 of 1999, heard on 3rd December, 2003.

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

----S. 302(b)---Appreciation of evidence---Presence of eye-witnesses on the spot at the relevant time was natural and plausible---Eye-witnesses had no malice or grievance against the accused for his false implication and they had made consistent statements---Ocular testimony was corroborated by medical evidence---Promptly lodged F.I.R. containing all the minor details of the occurrence had ruled out the possibility of consultation and fabrication---Conviction of accused was upheld in circumstances---However, weapon of offence recovered from the accused was not shown to have been used in the occurrence, accused at the time of incident was a teenager, accused had fired only one shot and recent cause for the murder of the deceased was shrouded in mystery---Sentence of death of accused was reduced to imprisonment for life in circumstances.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S.417(2-A)---Appeal against acquittal---Accused were only alleged to have abetted the commission of the offence---Accused had been acquitted by Trial Court on benefit of doubt---No misreading or non-reading of evidence by the Trial Court was pointed out---Reasons given by the Trial Court for acquitting the accused were neither perverse nor artificial or arbitrary---Appeal against acquittal of accused was dismissed accordingly.

Mian Dilawar Mahmood and Ejaz Hussain Gorcha for Appellant.

Syed Zahid Hussain Bokhari for the Complainant.

Sheikh Khalid Habib for the State.

Date of hearing: 3rd December, 2003.

2005 P Cr. L J 1835

[Lahore]

Before Asif Saeed Khan Khosa and Ch. Iftikhar Hussain, JJ

GHULAM ABBAS and another---Appellants

Versus

THE STATE---Respondent

Criminal, Appeal No.904, Criminal Revision No.459, and Murder Reference No.348 of 1999, heard on 4th November, 2003.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Appreciation of evidence---Occurrence had taken place during the dead of night---Accused were not nominated in the F.I.R.---No identification parade was held in the case to positively incriminate the accused---Presence of complainant and other eye-witness at the scene of occurrence was highly doubtful---Changed version of the incident at the trial by the eye-witnesses did not inspire confidence which had come at a subsequent stage just to justify the mala fide motives---Extra-judicial confession made by the lady accused was unbelievable---No crime-empty having been secured from the spot, licensed gun recovered from the accused during investigation was inconsequential---No motive was alleged against the accused in the F.I.R. and the belatedly alleged motive was not established---Accused were acquitted in circumstances.

Rai Muhairnnad Zafar Bhatti for Appellants.

Amir Abdullah Khan for the Complainant.

Mrs. Erum Sajjad Gul for the State.

Date or hearing: 4th November, 2003.

2005 P Cr. L J 1906

[Lahore]

Before Iftikhar Hussain Chaudhry, C.J. and Sh. Abdur Rashid, J

NAZIR AHMAD and 3 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 169 and Murder Reference No. 175 of 1998, heard on 8th December, 2003.

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

----Ss. 302(b)/34 & 302(c)/34---Appreciation of evidence---Motive---Motive alleged by the prosecution in definite terms becomes an integral part of the prosecution story and failure of the prosecution to prove that integral part reacts on the entire prosecution version which then requires deeper scrutiny and appreciation of the testimony of the witnesses with greater care and caution.

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

---Ss. 302(b)/34 & 302(c)/34---Appreciation of evidence---Complainant and the eye-witnesses had fabricated false motive to rope in the accused---Eye-witnesses besides being chance witnesses were closely related to the deceased---Evidence coming from independent source, instead of lending corroboration to the ocular testimony had completely contradicted and belied the same---Accused were acquitted in circumstances.

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

----Ss. 302(b)/34 & 302(c)/34---Appreciation of evidence---Chance witnesses need corroboration---When eye-witnesses claim their presence at the scene of occurrence as per chance, then their corroboration from independent source is required to place reliance on their evidence.

Sardar Muhammad Latif Khan Khosa for Appellants.

Muhammad Afzal Siddiqui for the Complainant.

M. Aslam Malik for the State.

Date of hearing: 8th December, 2003.

2005 P Cr. L J 1914

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and M. Naeemullah Khan Sherwani, JJ

MUHAMMAD YAQOOB alias UNCLE---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 166/J of 1998 and 595 of 1997, heard on 28th October, 2003.

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

----Ss. 308 & 302(b)---Appreciation of evidence---Complainant side had no time to enter into deliberations and consultations to fabricate a fictitious tale of occurrence and introduce false facts in the F.I.R.---No chance of mistaken identity was available, nor substitution of the accused for the actual culprit was possible---Presence of eye-witnesses at the spot during the occurrence was not open to any doubt who had consistently and clearly described the manner, mode and place of occurrence making specific allegations of causing wounds on both the deceased against the accused---Scandalous, false and frivolous plea had been raised by the accused in his defence defaming his in-laws to the maximum extent---Opinion furnished by the Doctor could be tested by the Court---Possibility of the Doctor of having made a wrong assessment of any injury could not be ruled out---Conviction of accused under S.308, P.P.C. was consequently set aside and he was convicted under S.302(b), P.P.C. and sentenced to death on both counts in circumstances.

Faqir Ullah v. Khalil-uz-Zaman and others 1999 SCMR 2203; Muhammad Akram v. The State 2003 SCMR 855 and Glaster's Medical Jurisprudence and Toxicology, 13th Edition p.276 ref.

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

---S.302---Appreciation or evidence---Expert opinion---Opinion furnished by an Expert is required to be tested by the Court.

Miss Nausheen Taskeen for Appellant.

Muhammad Iqbal Bhatti for the Complainant.

Ghulam Asghar Qadri for the State.

Date of hearing: 28th October, 2003.

2005 P Cr. L J 1922

[Lahore]

Before Khawaja Muhammad Sharif and Mian Muhammad Jahangier, JJ

MUHAMMAD ASHRAF alias ACCHU alias MUHAMMAD ASLAM and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.277, 291, Criminal Revision No.195 and Murder Reference No.225 of 1998, heard on 29th January, 2003.

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

------S. 302(b)---Appreciation of evidence---Lady accused was the real sister of male co-accused and she was not required to raise any "Lalkara" in order to cause the murder of the deceased---No other allegation was made against the lady accused except the making of a "Lalkara" at the time of occurrence---Case against the co-accused was only of single shot---Accused was given the benefit of doubt and acquitted in circumstances.

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

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---Motive for the murder as set up by the prosecution through two prosecution witnesses before the Trial Court was not believable---Presence of eye-witnesses at the scene of occurrence was believed---Accused had failed to prove the plea of provocation taken by him at the Trial---Accused had fired only one shot and he did not repeat the same---Motive in the occurrence was shrouded in mystery and immediate cause of death of the deceased was not known---Conviction of accused was upheld but his sentence of death was reduced to imprisonment for life in circumstances.

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

---Ss. 242 & 342---Statements of accused under Ss.242 & 342, Cr.P.C.---Recording of age of accused while their making statements under Ss.242 & 342, Cr.P.C.---Accused persons, while making statements stated their age lesser, in order to save themselves from capital punishment---Court recorded the age as stated by accused without receiving any documentary proof---Validity---High Court directed that Court may record what the accused said, but should make a tentative assessment or observation about the age.

Nazir Ahmad Ghazi for Appellants.

Ch. Irshad Ullah Chatha for the Complainant.

Muhammad Sharif Cheema for the State.

Date of hearing: 29th January, 2003.

2005 P Cr. L J 1927

[Lahore]

Before Raja Muhammad Sabir and Sh. Abdur Rashid, JJ

GULZAR AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1939 of 2000, heard on 22nd October, 2003.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Presence of the solitary eye- witness at the scene of occurrence was highly improbable---Even otherwise, the said eye-witness was a chance witness and his testimony was not corroborated by any independent evidence---Case of accused was not distinguishable from the case of acquitted co-accused---Accused could not be convicted only on the basis of his abscondance after the occurrence---Trial Court had erred in law in partly disbelieving the ocular testimony against the acquitted co-accused and partly believing the same against the accused without any material corroboration---Accused was acquitted in circumstances.

Kh. Sultan Mehmood for Appellant.

Mehmood H. Mirza for the State.

Date of hearing: 22nd October, 2003.

2005 P Cr. L J 1947

[Lahore]

Before Muhammad Akhtar Shabbir and Abdul Shakoor Paracha, JJ

AKHTAR ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos.607/B and 692/B of 2005, decided on 27th June, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 14, 15 & 51---Bail, grant of---Further inquiry---`Charas' in question had been recovered from suit-case lying in the vehicle which was hired by co-accused---Prosecution had yet to prove at the trial that accused in any way had any link with chief culprit or they were agents of said co-accused---Prosecution, prima facie, had failed to produce any direct or indirect piece of evidence, connecting accused with commission of offence---Nothing incriminating was found against accused despite prohibition contained in S.51 of Control of Narcotic Substances Act, 1997---High Court, in circumstances, had the powers to grant bail to accused---Participation of accused in occurrence and their association with co-accused was yet to be determined by the Court after recording prosecution evidence---Accused would be presumed to be innocent unless he was proved guilty beyond reasonable doubt by prosecution---Reasonable grounds existing to believe false involvement of accused in commission of offence---Case was fit for grant of bail to accused---No likelihood existed of early conclusion of trial of case of accused---All said circumstances were sufficient to bring case of accused within the ambit of further inquiry---Accused were admitted to bail, in circumstances.

The State v. Syed Abdul Qayyum 2001 SCMR 14 ref.

Syed Zulfiqar Abbas Naqvi for Petitioner.

Mirza Waqas Rauf, Special Prosecutor for A.N.F.

M.D. Shahzad State Counsel.

2005 P Cr. L J 2022

[Lahore]

Before Syed Shabbar Raza Rizvi, J

Dr. SHEHZAD MUNEER through Malik Sher Muhammad---Petitioner

versus

STATION HOUSE OFFICER, POLICE STATION TOWNSHIP, LAHORE and another---Respondents

Writ Petition No.11093 of 2005, decided on 26th July, 2005.

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

----Art. 199---Constitutional jurisdiction---Nature and scope---Constitutional jurisdiction under Art.199 of the Constitution is an original Constitutional jurisdiction which pertains to civil as well as other matters---Whether a proceeding is of civil nature or not, depends on the nature of the subject-matter of the proceedings and its object.

Hussain Bakhsh v. Settlement Commissioner PLD 1970 SC 1 ref.

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

----S. 380---Criminal Procedure Code (V of 1898), Preamble---Police Rules, 1934, Preamble---Civil Procedure Code (V of 1908), Preamble---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Registration of F.I.R. and its quashment basically related to the provisions of Code of Criminal Procedure, 1898 and Police Rules, 1934, therefore, Civil Procedure Code was not applicable---Accused had remedies under the Code of Criminal Procedure, 1898 and other laws by surrendering himself before the concerned Court or authorities and might avail the same---Accused had left the country after registration of the case and was not ready to surrender and submit before the law and wanted to reap benefit of law by invoking Constitutional jurisdiction of High Court---Such paradoxical stand and behaviour could not be countenanced and such kind of attitude could also be described as approaching High Court with unclean hands---Accused had avoided to appear before the Investigating Officer and did not join the police investigation---Judicial discretion could not be exercised in favour of a fugitive from justice who had lost even some normal rights granted by procedural and substantive law---Constitutional petition was dismissed accordingly.

PLD 1987 Lah. 288 distinguished.

Hussain Bakhsh v. Settlement Commissioner PLD 1970 SC 1; Naeem Jaffar v. Senior Superintendent of Police 1997 MLD 1198; PLD 1997 Lah. 385 and PLD 1985 SC 402 ref.

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

----Art. 199---Constitutional jurisdiction---Nature and scope---Jurisdiction under Art.199 of the Constitution is a discretionary jurisdiction which High Court may exercise if it is satisfied that no other adequate remedy is available---Satisfaction, therefore, is a pre-requisite for exercise of the said jurisdiction which High Court may exercise in its discretion judiciously.

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

----Art. 199---Constitutional jurisdiction---Scope---High Court before exercising its extraordinary Constitutional jurisdiction must be satisfied about the non-availability of any other adequate remedy provided by law to the petitioner---Constitutional jurisdiction of High Court is neither meant to supersede and render redundant the alternate remedies already provided by law, nor is meant as an alternate jurisdiction.

Naeem Jaffar v. Senior Superintendent of Police 1997 MLD 1198 ref.

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

----Ss. 249-A, 265-K, 551, 63 & 190---Police Rules, 1934, R.24.7---Constitution of Pakistan (1973), Art.199---Quashing of F.I.R.---Constitutional jurisdiction---Scope---Remedies to be resorted to before invoking said jurisdiction---To begin with the remedy is available before the Investigating Officer where the accused can plead his innocence---If not satisfied the accused can approach the higher Police Officer, who, by virtue of S.551, Cr.P.C. have all the powers of officers incharge of the police stations---Section 63, Cr.P.C. authorizes Magistrates to discharge the accused---Rule 24.7 of the Police Rules, 1934, provides for cancellation of cases during the course of investigation under the order of the Magistrate---After investigation is over, accused can again plead his innocence before Magistrate under S.190, Cr.P.C. where he can refuse to take cognizance of the case---Accused can demand his discharge or acquittal during the course of judicial proceedings, under S.249-A, Cr.P.C. or 265-K, Cr.P.C.---In the presence of such a large number of remedies available to an accused, it would be difficult for the High Court to hold that he while calling an F.I.R. in question by invoking the jurisdiction under Article 199 of the Constitution, would be an aggrieved person without any adequate or alternate remedy being available to him.

Syed Kazam Bokhari for Petitioner.

Khurshid Anwar Bhindar, Addl. A.-G. with Sajjad S.-I.

2005 P Cr. L J 8

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

BASHIR AHMAD and another---Petitioners

Versus

THE STATE and another---Respondents

Cr. Bail Petition No.208 of 2004, decided on 25th October, 2004.

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

----S. 497--Penal Code (XLV of 1860), Ss.302/148/149---Bail, grant of---Principles---Duty of Court---Court, before releasing accused on bail, was required to apply its mind keeping in view provisions contained in subsections (1) (2) of S.497, Cr.P.C. in its totality and the sine qua non for releasing an accused on bail was that Court should come to the conclusion that no reasonable grounds were available to believe that he had committed a non-bailable offence as provided in said subsection (1)(2) of, S.497, Cr.P.C. or to prevent abuse of process of Court or to do justice, keeping in view particular facts of each case---Bail in case of commission of a non-bailable offence and particularly falling in prohibitory clause in subsection (1) of S.497, Cr.P.C. was not to be granted as a matter of course, with the simple words that it was a case of further inquiry and without keeping in view entire provisions of S.497, Cr.P.C.---Material available on record at bail granting stage was to be sifted through in order to establish whether prima facie accused could be connected with crime in question and hence, no detailed inquiry was to be made by Court---Competent Criminal Court had the discretion to grant bail to accused, even in appropriate murder cases---Court, however, were under heavy duty to exercise their discretion fairly, justly and properly, which, in any case, should be based on good grounds to meet the ends of justice---Evidence of parties could not be accessed/tested in depth at bail stage---purpose was to avoid expression of opinion one way or the other on merits of case---Law decided in a particular case especially in bail natters, had small applicability to the facts of other cases--If bail was granted in one criminal case, it was not necessary that same should be granted in other case.

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

----S. 497--Penal Code (XLV of 1860), Ss.302/148/149---Bail, refusal of---Accused had been directly nominated in F.I.R. for commission of offence---Medical evidence, recovery of empties from the spot, motive and unexplained abscondence of accused extending over one year, fully supported charge against accused---Prosecution's allegations were surely sufficient on face of them to demonstrate that case was not of further inquiry within the meaning of S.497(2), Cr.P.C. for admission of accused on bail---After receiving evidence, it was for Trial Court to give weight to prosecution evidence in its own wisdom---Trial in the case having commenced and merits of case also being such from which a case could not be made out for further inquiry, Court would not exercise its discretion in favour of accused---Bail application of accused, was dismissed, in circumstances.

Shafi Muhammad v. The State 2002 PCr.LJ 494; Aftab Hussain v. The State 2004 SCMR 1467; Geraz Khan v. The State and another PLD 2004 Pesh. 160; Khan Sherin v. The State PLD 2004 Pesh. 101 and Abdus Samad Khan v. The State and another 2004 PCr.LJ 110 ref.

Salahuddin Khan Gandapur for Petitioners.

Muhammad Sharif Chaudhry, D.A.-G. for the State.

Muhammad Zahid for the Complainant.

Date of hearing: 25th October, 2004.

2005 P Cr. L J 13

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

RAB NAWAZ and another---Petitioners

Versus

THE STATE and another---Respondents

Cr. M. No.274 of 2004, decided on 18th October, 2004.

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

----S. 497---Bail, grant of ---Non-bailable offence---Principles---To consider bail matter of an accused involved to a non-bailable offence, it was to be seen whether there were reasonable grounds for believing that he was guilty of an offence punishable with death or imprisonment for life---Accused would not be released on bail unless case was covered by any of provisions in subsection (1) of S.497, Cr.P.C.---If it appeared to the Court at any stage of investigation, inquiry or trial, that no reasonable grounds existed, but there were sufficient grounds for further inquiry into his guilt, accused would be released on bail under subsection (2) of S.497, Cr.P.C.---Exercise carried out by the Court in matters concerning bail, was a preliminary one and was restricted to a tentative sifting of evidence on record as against an elaborate sifting of same--Court had only to see whether accused was connected with the commission of crime or not and for that purpose, only tentative assessment of evidence was to be made and deeper appreciation was not called for---Mind of the Court had to be satisfied that the case under its consideration was fit for grant of bail.

Amir v. The State PLD 1972 SC 277 ref.

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

----S.497---Penal Code (XLV of 1860), Ss.302/324/34---Bail, refusal of---Accused in the present case had not been able to successfully demonstrate the existence of circumstances justifying grant of bail to them---Question regarding mistaken identity, false implication on mere suspicion, alleged conflict between ocular account and medical evidence or that from whose fire shot deceased got hit, were issues which should safely be left to the Trial Court to appreciate them at the trial itself and not at bail granting stage.

Muhammad Sharif v. Shafqat Hussain 1999 SCMR 338 and Abdul Hai v. The State 1996 SCMR 555 ref.

Malik Muhammad Jehangir Awan for Petitioners.

Muhammad Sharif Chaudhry, D.A.-G. for the State.

Gohar Zaman Khan Kundi for the Complainant.

Date of hearing: 18th October, 2004.

2005 P Cr. L J 22

[Peshawar]

Before Ejaz Afzal Khan and Dost Muhammad Khan, JJ

SALIM JAVED DURRANI---Petitioner

Versus

THE STATE through Deputy Attorney-General, N.-W.F.P. and 3 others---Respondents

W.Ps. Nos.517 and 518 of 2000, decided on 21st September, 2004.

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

----Ss. 2(s), 156(1)(89) & 178---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4--- Constitution of Pakistan (1973), Art.199--­Constitutional petition---Death of petitioner during pendency of petition---Despite death of petitioner/accused during pendency of Constitutional petition, the petition was allowed to proceed because besides sentence of imprisonment, sentence of fine had also been imposed on petitioner/accused.

Muhammad Akram v. The State 1998 PCr.LJ 1693 and Ramdhani Gope and others v. Jagesher Mahto AIR 1941 Pat. 526 ref.

(b) Criminal trial---

---- Stages of criminal act (Crime)---Every criminal act (Crime) in law had, three stages; first the preparation; second the taking steps for its commission, and third the causative effects i.e. consummation/completion of criminal act, but above all intention/mens rea was the most essential and integral part of a crime---In every crime it was a matter of high importance that intent and act must both concur to constitute crime -----­An intention though could be inferred from the act of an accused, but manifestations must provide clear link therewith.

(c) Criminal trial---

---- Iron clad principle of criminal justice was that accused could not be held guilty for a crime on the basis of probabilities and high presumption and that no one would be construed into a crime without legal proof--­Probabilities, of course, could be considered additional circumstances if other evidence incriminating in nature was available against an accused.

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

----Ss. 2(s) & 156(1)(89) & 178---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Accused, since dead, had acted according to rules contained in the Manual by asking Operation Incharge to attach with the train wagon loaded with chips at City Railway Station---No narcotics were loaded therein at that time and it was in the transit that train was brought to halt and said wagon of train was selected by unknown accused for loading in it drums containing narcotics/Charas---No link, therefore, was available between the two incidents--­No evidence was available to the effect that directions given by ;he accused was not in a routine manner or same were in violation of Manual/Rules on the subject, moreso, when train had made departure from Railway Station at a time when duty hours of the accused were already over and another person had taken charge---Not a single shred of legal evidence was on record which could be made basis for conviction of the accused---Excepting abnormal halt of train at the crime spot, no other legal evidence was available to provide basis for conviction of the accused persons on the charges levelled against them---Even if adverse inference was drawn against said other accused persons, same would not constitute an offence of abetment or connivance on their part more particularly when principal accused had fled away and had not been traced out---Conviction of said accused persons for abetting offence or holding them guilty of connivance, would be in utter disregard of settled principles of law and justice---Occurrence having taken place at odd hours of night away from Railway Station lights, it was difficult to draw an inference that it was in the knowledge of accused that smuggler/unknown accused were loading narcotics in said wagon of the train--­Mere presumption, howsoever adverse might be, same would not be a substitute for legal evidences/proof --Prosecution having failed to, establish charges of smuggling against accused according to requirement of provisions of Customs Act, 1969 through any evidence, his conviction under provisions of Ss.156(1)(89)/178 read with S. 2(s) of Customs Act, 1969, was neither legal nor proper---Conviction and sentence awarded to accused by Trial Court, were set aside and they were acquitted of charges.

Asghar Ali and another v. The State 1999 SCMR 654 ref.

Zaffar Javed Durrani for Petitioner.

Hamid Farooq Durrani, D.A.-G. for the State.

Date of hearing: 21st September, 2004.

2005 P Cr. L J 33

[Peshawar]

Before Ejaz-ul-Hassan Khan and Ejaz Afzal Khan, JJ

INAYATULLAH---Appellant

Versus

THE STATE---Respondent

Crl. Appeal No.53 and M. Ref. No.6 of 2004, decided on 4th October, 2004.

Penal Code (XLV of 1860)---

----Ss. 302/324---Anti-Terrorism Act (XXVII of 1997), S.7---West Pakistan Arms Ordinance (XX of 1965), S.13---Criminal Procedure Code (V of 1898), Ss.464/465---Appreciation of evidence---Unsoundness of mind of accused---Record showed that accused was not of a sound mind and capable of understanding proceedings, but despite that accused was proceeded against without investigating that aspect of case---Accused moved an application for his medical check-up on the ground that he was removed from his service when Medical Board after Medical check up found him suffering from "Schizophrenia" but his application was rejected by Trial Court without application of mind---One of prosecution witnesses had admitted in his statement unequivocally, that accused was thought to be abnormal by all and sundry after occurrence---Provisions of S.465, Cr.P.C. had provided that in cases of trial before the Court of Sessions or a High Court, if it appeared to the Court at the trial that accused was of unsound mind and incapable of making his defence, the Court at the first instance, would try the fact of such un-soundness and incapacity, it was a meaningful mandate to be complied with by Court rather than an unmeaning casual direction to be flouted at---Court would dispense with such investigation only when plea of unsoundness of mind of accused was found to be feigned on the basis of its own observation or otherwise, but when there was sufficient material in that respect, the Court would be bound to investigate it---Evaluation of mental state of accused from a Medical Board attended by a Psychiatrist besides others was essential for just decision of the case---High Court allowing appeal against judgment of Trial Court set aside conviction and sentence recorded by Trial Court against accused and case was sent back with direction to get accused examined by Medical Board and proceed with the case in accordance with law in the light of opinion of the Board.

Fauqual Bashar v. The State 1997 SCMR 239; Sirajuddin v. Afzal Khan and another PLD 1997 SC 847 and Atta Muhammad v. The State PLD 1960 West Pakistan 111 ref.

Salimullah Khan Ranazai for Appellant.

Shujaullah Khan Gandapur for the State.

Date of hearing: 4th October, 2004.

2005 P Cr. L J 39

[Peshawar]

Before Ejaz-ul-Hassan Khan and Ejaz Afzal Khan, JJ

ARSHAD REHMAN---Appellant

Versus

THE STATE and 2 others---Respondents

Cr. Appeal No.37 of 2003 and M.Ref. No.4 of 2003, decided on 29th September, 2004.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Circumstantial evidence--­Principles-- Circumstantial evidence could only form basis for conviction when it was incompatible with the :innocence of accused and was incapable of explanation on all other reasonable hypothesis except that of guilt of accused---Where case rested on the testimony of circumstantial evidence, no chain in the link should be missing and that all circumstances must lead to the guilt of accused.

Ali Khan v. The State 1999 SCMR 955 and Fazal Elahi v. The Crown PLD 1953 FC 214 ref.

S. Zafar Abbas Zaidi for Appellant.

Ghulam Hur Khan Baloch for State.

Muhammad Karim Anjum for Respondent No.2.

Dates of hearing; 27th, 28 and 29th September, 2004.

2005 P Cr. L J 53

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

HAMEED-UR-REHMAN---Appellant

Versus

SAID REHMAN and 5 others---Respondents

Criminal Appeal No.73 of 2004, decided on 28th October, 2004.

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

----Ss. 410 & 417(2-A)---Appeal against acquittal and appeal against conviction---Assessment of evidence---Distinction---Standards of assessing evidence in appeal against acquittal were quite different from those laid down for appeal against conviction: In appeal against conviction, appraisal of evidence was done strictly and in appeal against acquittal, such 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 evidence on record; while in the acquittal appeal, interference was made only when it appeared that there had been gross misreading of evidence which amounted to miscarriage of justice--­Ordinary scope of appeal against acquittal of accused was considerably narrow and limited.

Muhammad Usman and 2, others v. The State 1992 SCMR 498 and The State v. Muhammad Raja and 3 others PLD 2004 Pesh. 1 ref.

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

----S. 417(2-A)---Penal Code (XLV of 1860), Ss.337-A(i)/506/148/149--­Qanun-e-Shahadat (10 of 1984), Art.129---Appeal against acquittal--­Trial Court acquitted accused by extending them benefit of doubt through impugned judgment---Prosecution had not been able to prove its case satisfactorily against accused and there was no show of misreading and non-reading of evidence on part of Trial Court rendering impugned judgment as unsustainable---Evidence had been appreciated in right direction and no illegality or infirmity had been pointed out in the judgment of acquittal---Trial Court had advanced valid and cogent reasons for passing an order of acquittal---Prosecution witnesses alleged to have seen the occurrence and extricated complainant from the hands of accused, had not been produced at the trial which had made prosecution case doubtful---Best piece of evidence in the case was evidence of the two witnesses who were private and independent witnesses, but their evidence had been withheld by prosecution without assigning any cogent reason--­Presumption under illustration (g) of Art. 129 of Qanun-e-Shahadat, 1984 could be drawn against the prosecution---Non-examination of private witnesses in circumstances of case was fatal to prosecution case--­Acquittal of accused did not suffer from any illegality so as to call for any interference in impugned judgment---Trial Court having advanced valid and cogent reasons for passing a finding of acquittal in favour of accused, no reason existed to disturb said finding.

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

----Art. 129, illustration (g)---Withholding of evidence---If a best piece of evidence available with a party was withheld, then it would be presumed that said party had some sinister motive behind it for withholding said piece of evidence and in such situation a presumption under illustration (g) to Art. 129 of Qanun-e-Shahadat, 1984 could fairly be drawn that had the said piece of evidence been brought on record, same would have been unfavourable to said party.

(d) Criminal trial---

---- Benefit of doubt---Onus to prove---Principle---Accused had only to show a dent having been created in the case of prosecution and that he was entitled to benefit of even a single doubt found in the evidence of prosecution and that he had not to show that its case suffered from more than one doubt---Except in cases where by means of special enactment onus to prove innocence had been placed upon accused, ordinarily under general law, it was the duty of prosecution to establish its case independently without any shadow of doubt.

Muhammad Ashraf Khan for Appellant.

2005 P Cr. L J 76

[Peshawar]

Before Shah Jehan Khan and Dost Muhammad Khan, JJ

RAEES KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.340 of 2004, decided on 10th August, 2004.

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

----Ss. 9(b), 20 & 21---Appreciation of evidence---Inspector, who had conducted raid, had admitted that no one from adjoining houses was associated in investigation, search and seizure and for such omission no reason had been shown in the case diaries---Inspector had also admitted that no incriminating article was recovered from personal possession of accused---Investigating Officer, despite having prior information that residential house in question was being used as a den of narcotics by accused, who was an international smuggler, and that capsules filled with heroin powder were concealed therein, did not obtain search warrant from Judge, Special Court as required under S.20 of Control of Narcotic Substances Act, 1997 and no plausible explanation had come forth on record for said omission---Investigating Officer was required to have obtained search warrant from Judge, Special Court---Meagre quantity of narcotics was recovered from a house without obtaining a search warrant from the Court, which in circumstances of case could have been conveniently obtained, irregularity committed by Investigating Officer, was of a nature, which if not sufficient to vitiate the trial, would create very grave doubts about honesty and credibility of entire investigation--­Narcotics were not recovered from personal possession of accused, but were recovered from T.V. Trolley---No evidence had been brought on record that accused was having conscious knowledge of same---Alleged crime house was situated in Posh locality, but not a single step was taken in the investigation to ascertain as to who was owner of that house and whether accused was staying there as a guest, as a tenant or was owner of said house---Such deliberate omission on the part of investigating agency had left behind many aspects of case untraced, susceptible to serious doubts and was subject to a serious debate which was fatal to prosecution case---Prosecution having failed to prove guilt of accused beyond any reasonable doubt, conviction and sentence recorded against accused by Trial Court were set aside and accused was set at liberty.

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

----Ss. 20 & 21---Power to issue warrant---Power of entry, search, seizure and arrest without warrant---Provisions of S.20 of Control of Narcotic Substances Act, 1997, though was directory in nature and in cases requiring quick action, obtaining of search warrant would not be necessary, but in view of language of provisions of S.21 of the Act, Investigating Officer making seizure, must form a definite opinion that obtaining of search warrant would consume such a time which would afford an opportunity to accused to conceal or destroy evidence or otherwise would enable him to escape---Legal burden had been placed on Police Officer under subsection (2) of S.21 of Control of Narcotic Substances Act, 1997 to record reasons and grounds for making such opinion and to send a copy of same to his superior Officer---Check and balance system had been provided by enacting S.21 of Control of Narcotic Substances Act, 1997 so that traditional chicanery and foulplay committed by investigating agencies were brought under control and in that way Officer conducting raid on residential building had no free hand to act on his whim and choice---Whenever said officer would make a departure from established procedure provided by ordinary law, he was essentially required to give reasons and grounds for such action in writing either in F.I.R. itself or in a case diary---In case of residential house, unless serious emergency was shown and recorded by raiding Officer in his case diary, he would not be acting within the parameters and safeguards provided by provisions of S.21 of Control of Narcotic Substances Act, 1997.

Noor Alam Khan for Appellant

Tariq Kakar for the State.

Date of hearing: 10th August, 2004.

2005 P Cr. L J 120

[Peshawar]

Before Ijaz-ul-Hassan Khan and Ejaz Afzal Khan, JJ

Mst. KHURSHIDAH alias RASHEEDA BEGUM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.73 of 2004, decided on 5th October, 2004.

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

----Arts. 117 & 118---Onus to prove guilt was always on prosecution which was to prove that it was the accused who had perpetrated the offence and the prosecution was to independently discharge such onus irrespective of any plea taken by accused.

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

----S. 9(c)---Appreciation of evidence---Sentence, reduction in--­Prosecution witnesses were consistent on all material particulars and no contradiction whatsoever could be pointed out by accused to cause dent in prosecution case---However, keeping in view quantity of contraband opium recovered, accused being lady aged about 50/51 years and lodging in jail ever since her arrest on 7-8-2003, she deserved leniency in quantum of sentence---Sentence of accused was curtailed to one already undergone by her and sentence of fine was also reduced accordingly.

Saifur Rehman Khan for Appellant.

Muhammad Sharif Chaudhry, D.A.-G. for the State.

Date of hearing: 5th October, 2004.

2005 P Cr. L J 244

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

GHULAM ABBAS and another‑‑‑Petitioners

Versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous Bail Petition No.350 of 2004, decided on 23rd November, 2004.

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

‑‑‑‑S. 497‑‑‑Bail, grant of‑‑‑Principles‑‑‑Prosecution evidence was not to be appreciated in minute details at the stage of bail‑‑‑Only tentative assessment of evidence was desirable and permissible at the stage of bail and not the deep scrutiny of evidence.

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

‑‑‑‑S. 497(2)‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Section 497(2), Cr.P.C. had provided that if it appeared to the Court, at any stage, that there were no reasonable grounds for believing that accused had committed a non-­bailable offence, but sufficient grounds were available for further inquiry into his guilt, such accused would be released on bail‑‑‑What would constitute 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 not make it a case of further inquiry simply for the reason that it would be, answered by the Trial Court subsequently after evaluation of evidence‑‑‑Condition laid down in clause,(2) of S.497, Cr.P.C. was that sufficient grounds existed for further inquiry into guilt of accused which would mean that question should be such which had nexus with the result of case and could show or tend to show that accused was not guilty of offence with which he was charged.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/342/34‑‑‑Bail, refusal of ‑‑‑F.I.R. though was lodged on following day of occurrence and complainant did not claim to have seen accused and co‑accused firing which resulted in death of deceased, but the fact was that accused and absconding co‑accused stood directly charged in F.I.R.‑‑‑Sufficient material was on record in the shape of medical evidence and recovery of crime empties from the spot, which prima facie had shown participation of accused and their accomplices in the crime in question‑‑‑Without highlighting merits of ‑case, no case for grant of bail had been made out and application of accused for grant of bail merited dismissal‑‑‑Rulings cited on behalf of accused were distinguishable and spoke of different situations‑‑‑Case‑law cited in one bail matter was not necessarily applicable to the other bail matter because every case was to be decided keeping in view its own peculiar facts and circumstances.

Jaffer and others v. The State 1980 SCMR 784; Muhammad Amin and others v. The State 1987 PCr.LJ 1404 and Sardar Munir Ahmad Dogar v. The State PLD 2004 SC 822 ref.

Muhammad Karim Anjum Qasuria for Petitioner.

Muhammad Sharif Chaudhry, D.A.‑G. for the State.

Date of hearing: 23rd November, 2004.

2005 P Cr. L J 254

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

MASHAL KHAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Cr. A. No.86 of 2004, decided on 4th November, 2004.

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

‑‑‑‑Arts. 3/4-‑‑Appreciation of evidence‑‑Prosecution in order to prove factum of apprehension of accused and recovery of heroin from his possession, had produced two police officials‑‑‑Both said witnesses had demonstrated complete unanimity on all important aspects of case and accused could not point out any discrepancy or infirmity in their statements so as to damage prosecution case‑‑‑Evidence of prosecution was very convincing and witnesses had no enmity or grudge or motive to falsely implicate accused in the case‑‑Said witnesses were consistent regarding the time, place of occurrence and recovery of heroin in question and the manner in which it had been effected‑‑‑Both witnesses were subjected to lengthy and combing cross‑examination, but nothing favourable could be extracted from them‑‑Delay in sending recovered material to office of Chemical Examiner for opinion, could not be treated fatal, especially when no objection regarding tampering or manipulation was raised on part of accused ‑‑‑Submission that compliance of provisions of S.103, Cr.P.C. was not made in the case as no two respectable persons of locality were associated, had no force firstly because provisions of S.103, Cr.P.C. had been excluded under provisions of S.25 of Control of Narcotic Substances Act, 1997 and secondly for the reason that provisions of S.20 of said Act were directory in nature and their non­compliance could not be considered as a strong ground for holding that trial of accused was bad in the eye of raw ‑‑‑Conclusions drawn and reasons advanced by Trial Court, had shown fair evaluation of evidence which was in accordance with settled principles of criminal jurisprudence‑‑‑In absence of any illegality or infirmity in the judgment of Trial Court warranting interference of High Court, appeal filed by accused against judgment of Trial Court whereby accused was convicted and sentenced, was dismissed and conviction and sentence of accused were maintained.

Tariq Parvez v. The State 1995 SCMR 1345; Sarwar Jan v. The State 2004 PCr.LJ 1224; Mian Gul Bacha Khan and another v. The State PLD 2004 Pesh. 246; Mahmood Khan v. The State 2002 PCr.LJ 1402; Noor Hussain v. The State 1996 PCr.LJ 181; Johar Ali and another v. The State 2003 PCr.LJ 680; Kamil Zaman v. the State 1999 PCr.LJ 1546 and Mst. Bibi Aisha and another v. The State 2004 YLR 2731 ref.

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

‑‑‑‑S. 103‑‑‑Aim and object of enacting S.103, Cr.P.C.‑‑‑Main aim and object of enacting S.103, Cr.P.C. was to ensure that search and recovery was conducted honestly and fairly and to exclude any possibility of concoction and transgression and it never meant to disbelieve the statements of official witnesses in any other circumstances.

(c) Criminal trial‑‑‑

‑‑‑‑Witness‑‑‑Police officials as competent witnesses‑‑‑Police officials were competent witnesses of recovery memo. and their statements could not be discarded merely for the reason that they belonged to police Department‑‑‑No legal prohibition existed for police officer to be a complainant if he was a witness to the commission of an offence and also to be an Investigating Officer so long as it would not, in any way, prejudice accused.

Fida Jan v. The State 2001 SCMR 36 and Mian Gul Bacha Khan and another v. The State PLD 2004 Pesh. 246 ref.

Muhammad Farid Khan Maidadkhel for Appellant.

Muhammad Sharif Chaudhry, D.A.‑G. for the State.

Date of hearing: 4th November, 2004.

2005 P Cr. L J 269

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

NASIB‑UR‑REHMAN and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Cr. A. No.89 of 2004, decided on 10th November; 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 514 & 516‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑‑­Surrender of Illicit Arms Act (XXI of 1991), S.7‑‑‑Forfeiture of surety bond‑‑‑Accused for whom appellants stood sureties, having not appeared in Court, appellants/sureties were burdened with amount of Rs.40,000 each and on their failure to deposit said amount they were sentenced for a period of six months‑‑‑Sureties were under legal obligation to discharge their, liability under bail bonds furnished by them‑‑‑Sureties after undertaking liability themselves, it would 'not lie in their mouth to say that on account of their financial condition, they could not pay amount of bond executed by them and had stood sureties for accused out of benevolence and without any monetary gain‑‑‑No legal embargo existed that amount of bail in full could not‑ be forfeited‑‑‑Where an accused jumped bail bond, entire surety amount would become liable to confiscation‑‑‑Sureties were liable to produce accused in Court in view of undertaking given by them‑‑‑Trial Court had already taken a lenient view by reducing amount of surety bond from Rs. three lacs to Rs. forty thousands‑‑‑No reason thus, was available to further reduce amount of surety‑‑‑Order forfeiting surety bond being correct, proper and legal, would not call for interference of High Court in its appellate jurisdiction.

Muhammad Shah and others v. The State 1994 PCr.LJ 2316; Amanullah and others v. The State 1997 PCr.LJ 1927; Muhammad Khan v. The State 1986 PCr.LJ 2028; Shatab Khan and another v. The State PLD 1996 Lah. 600; Zeshan Kazmi v. The State PLD 1997 SC 267 and Muhammad Aslam and another v. The State 2004 SCMR 211 ref.

Zafarullah Khan for Appellants.

Muhammad Sharif Chaudhary, D.A.‑G. for the State.

Date of hearing: 10th November, 2004.

2005 P Cr. L J 279

[Peshawar]

Before Tariq Parvez Khan and Muhammad Qaim Jan Khan, JJ

GHULAM MUHAMMAD ‑‑‑ Appellant

Versus

AHMAD SAHIB and another‑‑‑Respondents

Criminal Appeals Nos.621, 606 and Criminal Revision No.119 of 2003, decided on 23rd November, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/324/34/337‑A(i)/337‑F(i)‑‑‑Appreciation of evidence‑‑­Presence of complainant and other prosecution witness at the spot could not be disputed since both of them had received fire‑arm injuries in the occurrence‑‑‑Presence of two said injured witnesses had also been admitted by accused‑‑‑Statement of injured, eye‑witnesses to the effect that immediately before occurrence they were present on scene of crime plucking and collecting walnuts, had not been challenged‑‑‑Complainant had stated that out of three accused persons, acquitted accused and another one were armed with Kalashnikov whereas third one was empty­-handed‑‑‑Statement of complainant that firing was made on deceased, on complainant and on other prosecution witness in the thoroughfare, was corroborated by site‑plan‑‑‑Complainant and other injured prosecution witness had categorically stated that with the fire shot of acquitted accused, deceased was hit and they unanimously stated that with the fire shot of one of accused persons, one of prosecution witnesses was hit on his jaw‑‑‑Non‑examination of co‑villagers who were present either at the time of firing or who had come after firing, was conveniently explainable as both parties appeared to be sufficiently influential as acquitted accused was an Advocate, whereas one of prosecution witnesses who was brother of deceased was also an Advocate‑‑‑Nobody could come forward to earn enmity of either party either by appearing in their support or against them‑‑‑No previous enmity existed between the parties except a land dispute ‑‑‑Evidence of complainant and other injured prosecution witness had been believed by Trial Court, but for their own injuries and on such strength two accused persons had rightly been convicted and sentenced‑‑‑By each of two witnesses, each of two accused was charged and for injuries on the person of deceased, acquitted accused was charged‑‑‑Case thus, would be that of single accused, in circumstances.

PLD 1981 SC 12; 1996 SCMR 1411; PLD 2001 Pesh. 1; 1981 SCMR 795; PLD 1986 Pesh. 188; PLD 1981 SC 12; PLD 1990 Pesh. 10 and PLD 1993 Pesh. 152 ref.

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

‑‑‑‑S. 417‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Appeal against acquittal‑‑‑Trial Court in its judgment had admitted that complainant and other eye‑witness who were injured in occurrence were unanimous in their evidence against accused in which they had categorically stated that deceased was hit with the fire shots of acquitted accused, but for some unclear reasons, which did not appear to be legal reasons, benefit of doubt had been given to acquitted accused‑‑‑Ocular evidence having directly charged acquitted accused, there was no reason to disbelieve two injured eye‑witnesses‑‑‑Reasons for acquittal of accused as given by Trial. Court, were firstly that no weapon of offence was recovered from him, secondly that nobody from co‑villagers was produced; thirdly that person whose house was situated nearby, was not examined and fourthly that victims were inter‑related‑‑‑All said grounds were similarly available against co‑accused who had been convicted‑‑‑Not that any of said grounds of acquittal taken into consideration by Trial Court, was in any manner solid or legal, but it appeared that Trial Court was persuaded by factum that acquitted accused was a practising lawyer and had tried to acquit accused by stretching and by pressing into service reasons which were not reasonable‑ Unshaken evidence of two injured witnesses duly supported by medical evidence by itself was sufficient to award conviction to acquitted accused‑‑‑Acquittal of accused was set aside and he was convicted and sentenced under S.302(b), P.P.C. to life imprisonment with fine‑‑‑Capital punishment was not awarded to accused for the reason that no blood feud was found and firing preceded by altercation between parties which occurred at the moment

Sikandar Khan for Appellant.

Khawaja Muhammad Khan and Muhammad Nawaz Khan for Respondents.

Muhammad Saeed Khan Addl. A.‑G. for the State.

Date of hearing: 23rd November, 2004.

2005 P Cr. L J 288

[Peshawar]

Before Talaat Qayum Qureshi, J

RAHAM SHER ‑‑‑Petitioner

Versus

Mst. MALIKA and another‑‑‑Respondents

Cr. Misc. No. 1072 of 2004, decided on 24th November, 2004.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/148/149‑‑‑Bail, refusal of‑‑‑Accused along with his co‑accused was charged in F.I.R. for murdering the deceased‑‑‑Sufficient incriminating material was available on record in the shape of blood stained earth and recovery of empties from the spot by Investigating Officer‑‑‑Strong prima facie case connected accused with commission of offence ‑‑‑Post‑mortem report of deceased had shown that he had received five entry wounds, two gutter and three exit wounds on his body‑‑‑Said report fully supported case of prosecution‑‑‑Accused remained fugitive from law for about one year and no explanation was available on record about said noticeable abscondence‑‑‑Occurrence had taken place at evening time in the month of July and sufficient light was there through which accused along with his co‑accused could be identified and delay in lodging report had been properly explained in F.I.R. by complainant‑‑‑Reasonable grounds existing to believe that accused had been guilty of offence punishable with death or imprisonment for life, bail application was dismissed.

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

‑‑‑‑S. 497‑‑‑Bail, refusal of ‑‑‑Abscondence of accused‑‑‑Fugitive from law and Courts, would lose some of his normal rights granted by procedural as well as substantive law and unexplained noticeable abscondence of accused would disentitle him to concession of bail notwithstanding the merits of case.

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

Assadullah Khan Chamkani and S. Naz Muhammadzai for Petitioner.

Obaidullah A.A.‑G. for the State.

Iftikharuddin for the Complainant.

Date of hearing: 24th November, 2004.

2005 P Cr. L J 298

[Peshawar]

Before Malik Hamid Saeed, J

ISTEQBAL and 7 others‑‑‑Appellants

Versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No.827 and Criminal Revision No.216 of 2004, decided on 22nd November, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/324/109/148/149‑‑‑Appreciation of evidence‑‑‑Sentence, reduction in‑‑‑ Accused persons were directly charged in a promptly lodged F.I.R. by complainant, whose statement at the trial was also in line with the contents of F.I.R., suffering from no material contradiction or improvement, though defence had made a lengthy cross examination on him‑‑‑Contention that complainant had brought an exaggerated charge against all members of family of accused, was repelled, because as firing was made at complainant party from the house of accused, naturally all accused being members of same family, would have opened fire at complainant party keeping in view the number of empties recovered from the spot and the fact that when police reached the spot within half an hour, accused were not present in the house‑‑‑Statement of complainant and eye‑witness account of other prosecution witness, were credible and confidence‑inspiring on all material aspects of the case‑‑‑So far as number of injuries on the person of deceased and injured as well as number of accused were concerned, same were not of much help to defence as medical evidence was always treated to be of confirmatory nature‑‑‑Omission to send empties to Forensic Science Laboratory for ascertaining as to whether same had been fired from one weapon, was also not of much help to defence as nature of Expert report was also a sort of confirmatory evidence and could not be a substitute to direct evidence, particularly when no question had been asked from the eye­witnesses, whether it was the act of one man or more‑--In view of direct charge against accused persons, reliable eye‑witness account furnished by complainant and prosecution witness, recovery of blood‑stained earth from the spot, blood‑stained clothes of deceased and the injured, recoveries made from the spot, medical evidence, site plan and motive behind the occurrence, it could be said with certainly without any element of doubt that prosecution had successfully established its case against accused persons‑‑‑Case against other two accused was not proved as no evidence was available against them to show that in fact they had extended any help to other accused in their criminal act‑‑‑Accused persons, however were not charged for fatal shots resulting into death of deceased, but were only charged for ineffective firing upon complainant and his other companions‑‑‑Conviction and sentence of 7 years' R.I. of accused persons was reduced to sentence of 4 years R.I. accordingly.

2004 SCMR 477; Muhammad Yaqoob v. The State 1992 SCMR 1983; Mokha v. Zulfiqar PLD 1978 SC 10; Zakir Khan v. The State 1995 SCMR 1793; Roshan v. The State PLD 1977 SC 557; Dildar Hussain v. Muhammad Afzal alias Chala and 3 others PLD 2004 SC 663 and State v. Muhammad Sharif and 3 others 1995 SCMR 635 ref.

M. Zahoorul Haq and Q.M. Anwar for Appellants.

Ubaidullah Anwar, D.A.‑G. for the State.

Abdul Samad Khan for the Complainant.

Date of hearing: 22nd November, 2004.

2005 P Cr. L J 305

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

MUHAMMAD RIAZ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Cr.M.B. No.354 of 2004, decided on 1st December, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Art. 3‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 21‑‑­Bail, grant of‑‑‑Accused was in jail ever since his arrest‑‑‑Investigation of case was almost complete and accused was no more required for further investigation‑‑‑Accused was stated to be previous non‑convict‑‑‑Whether search was conducted in contravention of provisions contained in S.21 of Control of Narcotic Substances Act, 1997 and whether in view of quantum of substance recovered, accused could be awarded a sentence attracting prohibitory clause of S.497, Cr.P.C. were the questions which required further inquiry‑‑‑Accused was released on bail, in circumstances.

State through A.‑G. Sindh Karachi v. Hemjoo 2003 SCMR 881; Noor Ali Khan v. The State and another 2003 MLD 1637 and Zarful v. The State 2003 PCr.LJ 1392 ref.

Muhammad Waheed Anjum for Petitioner.

Ehsanul Haq Malik for the State.

Date of hearing: 1st December, 2004.

2005 P Cr. L J 310

[Peshawar]

Before Ijaz‑ul‑Hassan Khan and Ejaz Afzal Khan, JJ

SHAMSUD DOHA‑‑‑Appellant

Versus

THE STATE and another‑‑‑Respondents

Cr. Appeal No.65 of 2004, decided on 9th December, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Report to Police was promptly lodged and complainant had no occasion to make deliberations and falsely implicate accused with whom he had no enmity whatsoever‑‑‑Complainant had appeared as prosecution witness and had corroborated contents of his report‑ ‑‑Prosecution witness in his deposition had fully corroborated in material particulars the statement made by complainant‑‑­No cogent evidence had been produced by defence that witnesses were not present at the spot‑‑‑Statement of defence witness hardly inspired confidence‑‑‑Defence witness was related to accused and lived at a distance of about one kilometer from the venue of occurrence‑‑‑Witness had not been able to plausibly account for his presence near or around the spot‑‑‑Complainant who was grandfather and prosecution witness was also uncle of deceased and though were interested witnesses, but nothing was on record to show that they had falsely implicated accused‑‑‑Both witnesses had been subjected to lengthy cross‑examination., but nothing fruitful could be adduced from their statements‑‑‑Statements of said witnesses inspired confidence and there was nothing to disbelieve ocular account of occurrence seen by them‑‑‑Eye‑witnesses were independent and disinterested and their being no possibility of false implication, charge stood fully proved against accused‑‑‑Undoubtedly evidence of an interested witness lacking any corroboration, could not be made basis of a capital charge, but in the present case in spite of close relationship of eye‑witness they had no motive to falsely implicate accused in the case‑‑­Both witnesses had made consistent statements before the Court and their credibility could not be shaken during cross‑examination‑‑‑Occurrence had taken place in broad‑daylight and matter was promptly reported by complainant‑‑‑Absence of any motive for false implication, confidence inspiring statements of eye‑witnesses, strong corroboration by Medico legal report as confirmed by Medical Officer, recovery of incriminating articles and abscondence of accused, had fully established that prosecution had brought home guilt to accused beyond any shadow of reasonable doubt‑‑‑Medical evidence was in complete harmony with ocular testimony of complainant and no conflict could be pointed out to create dent in prosecution case‑‑‑Motive set up by prosecution had been proved‑‑‑Trial Court, in circumstances had rightly convicted and sentenced accused‑‑‑Judgment of Trial Court was maintained.

Muhammad Ilyas v. The State 1997 SCMR 25; Farman Ali and others v. The State PLD 1980 SC 20; Siraj Din v. Kala and another PLD 1964 SC 26; Asghar v. The State PLD 1970 Lah. 878; Federal Government Ministry of Defence v. Sepoy Liaqat Ali 2004 SCMR 1676, Amal Sherin and another v. The State through Advocate‑General N.‑W.F.P. PLD 2004 SC 371; Wilayat Ali v. The State and another 2004 SCMR 477; Rashid Ahmad alias Kuku v. The State 2003 SCMR 497; Gul Raza v. The State and 4 others PLD 2004 Pesh. 219; Iftikhar alias Istikhar v. The State and another PLD 2004 Pesh. 143; Muhammad Akhtar Ali v. The State 2000 SCMR 727; MsE, Roheeda v. Khan Bahadur and another 1992 SCMR 1036 and Amanullah Khan and 3 others v. The State 2002 PCr.LJ 1934 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Interested witness‑‑‑Statement of an interested witness was to be considered with abundant caution, nevertheless statement of a witness could not be disbelieved merely because he was an interested witness, unless it was further shown that he had falsely implicated accused.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Circumstantial evidence‑‑‑Quality and not the quantity of such of evidence which weighed with the Court and it was the intrinsic worth and credibility of deposition and independence of witness which was taken into consideration by the Court while appreciating evidence.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Minor inconsistencies and contradictions in evidence‑‑‑Distinction had always to be made in minor inconsistencies or variance in testimony of witness from contradiction in evidence‑‑‑Only such statement would be treated as contradictory, which was either destructive of each other or it was totally different to each other and totally irreconcilable‑‑‑Such contradiction would always lead to benefit of accused entailing their acquittal‑‑‑Variance in the testimony of a witness or inconsistencies on the points which were not material, would not lead to such conclusion and result‑‑‑If evidence had been recorded within few days or even few months, witness would be required to be more consistent than in case of recording of evidence after lapse of considerable long time.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Evidence furnished by expert‑‑­Evidence furnished by an expert was always treated to be of confirmatory nature .qua the ocular testimony and if latter kind of evidence was trustworthy, confidence‑inspiring and consistent, then expert opinion would not outweigh the same.

Muhammad Hanif v. The State PLD 1993 SC 895 and Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758 ref.

(f) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Motive‑‑‑Mere absence or weakness of motive would not come in the way of prosecution if case was otherwise proved by reliable evidence‑‑‑Motive was not considered a sine qua non for proving an offence of murder and mere absence of motive was no ground to doubt the truth of prosecution case.

Muhammad Ramzan v. The State 1992 PLD 302 and Government of. Sindh v. Sobharo 1993 SCMR 585 ref.

Sanaullah Khan Gandapur for Appellant.

S. Abid Hussain Bukhari for the State.

Khawaja Nawaz Khan for the Complainant.

Date of hearing: 9th December, 2004.

2005 P Cr. L J 319

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

Syed MUHAMMAD ROBAN SHAH and others‑‑‑Petitioners

Versus

THE STATE and others‑‑‑Respondents

Cr.M.B. No. 271, Cr.M.B.Cs. Nos. 139 and 198 of 2004, decided on 29th November, 2004.

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

‑‑‑‑S. 497‑‑‑Bail, grant of‑‑‑Principles‑‑‑Duty of Court‑‑‑Court before releasing accused on bail, was required to apply its mind keeping in view provisions contained in subsections (1) & (2) of S.497, Cr.P.C. in its totality‑‑‑Sine qua non for releasing an accused on bail was that the Court should come to the conclusion that no reasonable grounds were available to believe that accused had committed a non‑bailable offence as provided in subsections (1) & (2) of S.497, Cr.P.C. or to prevent the abuse of process of Court or to do justice, keeping in view particular facts of each case‑‑‑Bail in the case of commission of a non‑bailable offence and particularly failing in prohibitory clause in subsection (1) of S.497, Cr.P.C. was not to be granted as a matter of course for the simple reason that it was a case of further inquiry and without keeping in view entire provisions of S.497, Cr.P.C.‑‑‑At bail granting stage, material available on record was to be sifted through in order to establish whether prima facie accused before the Court could be connected with crime in question and hence, no detailed inquiry was to be made by Court.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/34‑‑‑Bail, refusal of‑‑‑Accused was one of accused persons implicated in the case‑‑‑Accused had been apprehended at the spot and weapon of offence had been recovered from his possession ‑‑‑Co‑accused had been granted bail principally on plea of alibi, while no such plea had been taken by accused‑‑‑In view of direct nomination of accused in F.I.R. and recovery of weapon of offence from his possession, accused was adjudged not entitled to concession of bail.

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

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), Ss.302/324/34‑‑‑Petition for cancellation of bail, dismissal of‑‑‑Accused persons had been granted bail for valid reasons and no legitimate exception could be taken to impugned orders‑‑‑Accused had not misused their concession of bail‑‑‑Discretion exercised by Court below in admitting accused persons on bail, in circumstances, did not require interference.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585; Muhammad Shafique and another v. The State PLD 1990 Pesh. 118; State through Advocate‑General, N.‑W.F.P. Peshawar v. Laiq Khan 2002. PCr.LJ 941; Sharif Khan v. Seenar Gul and another 1990 PCr.LJ 142; Mst. Irshad Begum. v. Muhammad Afzal and another 1985 SCMR 1691; Mian Dad v. The State and another 1992 SCMR 1418; Muhammad Fazal alias Bodi v. The State 1979 SCMR 9; Muhammad Aslam and another v. The State through A.‑G. Punjab and another 1997 SCMR 251; Waqar‑ul‑Haq v. The State 1985 SCMR 974; Iqbalur Rehman v. The State PLD 1974 SC 83; Sultan Mehmood v. Atta Muhammad and another 1990 ALD 639; Rizwanullah and another v. The State and another 1999 MLD 1443; Sajjad Khan v. Farooq Ahmad and another 2002 PCr1J 1048; Sher Ali v. Umar Saeed and another 2004 YLR 1234 and Amjad Hussain v. The State 2004 PCr. LJ 550 ref.

Sanaullah Khan Gandapur for Petitioners.

Ehsanul Haq Malik for the State.

Gohar Zaman Khan Kundi for the Complainant.

Date of hearing: 29th November, 2004.

2005 P Cr. L J 330

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

ZARIF KHAN‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Cr.M.B. No.342 of 2004, decided on 1st December, 2004.

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

‑‑‑‑S. 497‑‑‑Bail, grant of‑‑‑Procedure‑‑‑At the time of hearing of bail application, Court was supposed to make tentative assessment of the material available on record, which was distinct from final appreciation and, evaluation of evidence which was to be done by Trial Court which had to record evidence of witnesses‑‑‑Appreciation of evidence and drawing of conclusions therefrom in relation to all the circumstances, was the function exclusively of Trial Court and could not be undertaken by superior Court dealing with an ancillary matter i.e. grant of bail pending trial.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, refusal of‑‑­Accused, no doubt, was not charged to have caused any injury to deceased, but according to allegations recorded in F.I.R., accused caught hold of the deceased while his co‑accused caused fatal blow culminating in death of deceased‑‑‑Accused, in circumstances had facilitated commission of murder of deceased‑‑‑Accused and his co‑accused had come to the venue of occurrence which demonstrated that accused had a common intention to take life of deceased‑‑‑Accused remained absconded for about 14 years and his such unexplained noticeable abscondence, would disentitle him to relief of bail, notwithstanding merits of case‑‑‑It would be only after recording of evidence in the case that one would be able to say, with certainty, whether or not accused was to be blamed for taking life of deceased, but at present no reasonable ground was to believe that accused had no concern in the matter‑‑‑Bail application of accused being without merits, was dismissed.

1995 SCMR 310; 1994 SCMR 393; 1978 SCMR 357; Rehmatullah v. The State and another 1999 PCr.LJ 579 and Naseer Ahmad v. The State PLD 1997 SC 347 ref.

Sanullah Khan Gandapur for Petitioner.

Muhammad Sharif Chaudhry, D.A.‑G. for the State.

Muhammad Karim Anjum Qasuria for the Complainant.

Date of hearing: 30th November, 2004.

2005 P Cr. L J 337

[Peshawar]

Before Ijaz‑ul‑Hassan Khan and Ejaz Afzal Khan, JJ

HUMAYUN‑‑‑Appellant

Versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No.48 and Criminal Revision No. 11 of 2004, decided on 7th December, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Prosecution evidence suffered from infirmities and improbabilities and could not be made basis for conviction of accused‑‑‑Solitary statement of complainant stood belied by a host of circumstances and there were doubts regarding his presence at the scene of occurrence‑‑‑Occurrence was an unseen one and prosecution had failed to prove its case against accused beyond any shadow of doubt‑‑‑Entire evidence of prosecution was unreliable, unnatural and remained shrouded in mystery‑‑‑Timing of report, arrival of Investigating Officer and complainant on the spot, recovery of crime empty and drafting of Murasila, were highly doubtful and could not be taken into consideration‑‑‑Medical evidence totally contradicted prosecution version‑‑‑Only entry wound and that too from the backside made the presence of sole prosecution witness highly doubtful and unworthy of credit‑‑‑Alleged recovery of crime weapon i.e. kalashnikov, was false and report of Forensic Science Laboratory being in negative, also rendered entire case doubtful‑‑‑Acquittal of co‑accused tended to suggest that complainant was unworthy of credence and had no regard for truth‑‑­Case was fit in which benefit of doubt could be given to accused‑‑­Conviction and sentence awarded to accused by Trial Court, were set aside and he was acquitted of the charge and was ordered to be released.

1993 PLD SC 251; 2004 PCr.LJ 482; 2004 PCr.LJ 30; 2004 PCr.LJ 68; 1972 SCMR 620; 2004 PLD Pesh. 294; 2004 PLD Pesh. 299; 2004 PLD Pesh. 219; 1990 PLD Pesh. 10; 2003 PCr.LJ 966; PLD 2004 Pesh. 147; PLD 1993 SC 895; 2000 SCMR 1758; PLD 1995 SC 46; PLD 2004 SC 371; PLD 2004 Quetta 123 and 2004 SCMR 1676 and 2004 PCr.LJ 1684 ref.

(b) Penal Code (XLV of 1860)‑‑-

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑An eye‑witness, who claimed his presence at the spot, must satisfy the mind of the Court through some physical circumstances or through some corroborative evidence in support of his presence at the spot.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Solitary statement of witness‑‑­Solitary statement of a witness, though was sufficient to base conviction of accused person provided it rang true and came from an unimpeachable source, but solitary statement of related chance witness was seldom relied upon in a case involving capital charge, unless such witness inspired confidence by furnishing plausible and convincing explanation for his presence at a place where he was ordinarily not expected to be present at a given time.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Corroboration of evidence‑‑­Case involving capital punishment‑‑‑Court would not base conviction on the sole testimony of a witness, whose credibility was not free from doubt‑‑‑For safe dispensation of justice, Court would look for some independent corroboration.

Haji Rabnawaz v. Sikandar Zulqarnain and 7 others 1998 SCMR 25; Din Muhammad v. Crown 1996 SCMR 777 and Iqbal alias Bhala v. State 1994 SCMR 1 ref.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Evidence of interested witness‑‑­Corroboration‑‑‑ Concept‑‑‑Evidence furnished by interested witness related to victim or deceased, could not be discarded merely for the reason that witness had relationship with victim and in such‑like situation, efforts must be made to seek such corroboration from other evidence available on record‑‑‑Corroboration did not mean that it should come from an independent source, but anything in circumstance‑which could satisfy the Court to believe that witness had spoken the truth and his statement could safely be considered to be corroborative evidence‑‑‑In absence of any other corroborative evidence, that evidence even if found convincing, would not be sufficient by itself to warrant conviction of accused on charge of murder‑‑‑One piece of tainted evidence could not corroborate another tainted piece of evidence.

Sanaullah Khan Gandapur for Appellant.

Ehsanul Haq Malik for the State.

Khawaja Nawaz Khan for the Complainant.

Date of hearing 7th December, 2004.

2005 P Cr. L J 345

[Peshawar]

Before Dost Muhammad Khan, J

Mst. RAZIA‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Cr. Misc. No. 1324 of 2004, decided on 11th November, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Control of Narcotic Substances Act (XXV of 1997), S.9‑‑­Bail, grant of‑‑‑Quantity of Charas allegedly recovered from accused exceeded 1000 grams by negligible diargin and thus, case against accused was on border line between cl. (b) & (c) of S.9 of Control of Narcotic Substances Act, 1997 where maximum punishment could not be awarded even if charge was established against accused‑‑‑Accused was a female, a widow and mother of a suckling baby‑‑‑Case of grant of bail having been made out‑‑‑Accused was admitted to bail.

Syed Muhammad Ali Shah for Petitioner.

Umer Zaffarain for the State.

Date of hearing: 11th November, 2004.

2005 P Cr. L J 352

[Peshawar]

Before Ijaz‑ul‑Hassan Khan and Ejaz Afzal Khan, JJ

NOOR MALI KHAN‑‑‑Appellant

Versus

Mir SHAH JEHAN and another‑‑‑Respondents

Criminal Appeal No.23 of 2004, decided on 14th December, 2004.

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

‑‑‑‑S. 417(2‑A)‑‑‑Penal Code (XLV of 1860), Ss.302/324/34‑‑‑Appeal against acquittal‑‑‑To convict a person on a capital charge, evidence should be of very high quality and good standard which was, not available in the case‑‑‑Eye‑witnesses had not specifically charged accused for firing at deceased‑‑‑Major discrepancies were found in the statements of witnesses which had been rightly, taken into consideration and made basis for acquittal of accused‑‑‑Non‑recovery of empty of double barrel shotgun from the spot and the report of Fire‑arms Expert to the effect that two kinds of weapons were used in the commission of crime, indicated that accused had no hand in the commission of crime‑‑­Trial Court, in circumstances was quite justified in acquitting accused by extending him benefit of doubt‑‑‑Judgment of Trial Court which was perfectly correct being based on proper appreciation of evidence, would call for no interference‑‑‑Appeal against acquittal dismissed.

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

‑‑‑‑Ss. 410 & 417‑‑‑Penal Code (XLV of 1860), Ss.302/324/34‑‑‑Appeal against conviction and appeal against acquittal‑‑‑Standards of assessing evidence‑‑‑ Distinction‑‑‑Standards of assessing evidence in appeal against acquittal were quite different from those laid down for appeal against conviction-‑‑In the appeal against conviction, appraisal of evidence was made strictly and in appeal against acquittal, same rigid method of appreciation was not to be applied as there was already finding of acquittal given by Trial Court after proper analysis of record‑‑‑In acquittal appeal, interference would be made, only when it appeared that there had been gross misreading of evidence which amounted to miscarriage of justice‑‑‑Ordinary scope of appeal against acquittal of accused 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.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302 & 324/34‑‑‑Appreciation of evidence‑‑‑Evidence furnished by interested witnesses‑‑‑Value‑‑‑Evidence furnished by interested witnesses ordinarily could not be discarded merely for the reason that they had relationship with deceased‑‑‑However, for safe administration of justice, it would become duty of the Court to look forward for corroboration of such evidence from independent source with a view to explore truth for the purpose of reaching at a just conclusion.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302, 324 & 34‑‑‑Abscondence of accused‑‑‑Abscondence at the most could be taken as corroborative of the charge and not 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 on a charge of murder.

Aminullah v. The State PLD 1976 SC 632 ref.

Naimatullah Jamal for Appellant.

2005 P Cr. L J 376

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

SHAUKATULLAH‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.80 of 2004, decided on 23rd November, 2004.

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

‑‑‑‑S.13‑‑‑Appreciation of evidence‑‑‑Prosecution witnesses produced to prove apprehension of accused on the spot and recovery of Kalashnikov and three magazines etc. from his possession, had demonstrated complete unanimity on all important aspects of case and accused could not point out any„discrepancy or infirmity in their statements so as to create a dent in prosecution case‑‑‑Evidence of prosecution was very convincing and witnesses had no enmity or grudge or motive to falsely implicate accused in the case‑‑‑Prosecution witnesses were consistent regarding apprehension of accused and recovery of arms and ammunition from his possession‑‑‑Prosecution witnesses were subjected to lengthy and searching cross‑examination, but nothing could be gained by defence to discard their statements‑‑‑Non‑sending of Kalashnikov to Expert for his opinion though was an omission on part of Investigating Officer, but could not be held to be fatal to prosecution case‑‑-Plea of accused that the Baithak wherefrom recovery was allegedly made was jointly owned, remained unproved on the record‑‑‑Fact that provisions of S.103, Cr.P.C. were not complied with as no independent witness was associated with raid and recovery proceedings, was also not available to accused because raid was conducted in the company of D.S.P, and other higher Police Officers and they being responsible police officers, could not be expected to implicate accused, in a false case, particularly when accused did not allege any mala fide on their part‑‑‑Conclusions drawn and reasons advanced by Trial Court had shown fair evaluation of evidence‑‑‑In absence of any illegality or infirmity in judgment of Trial Court, no justification was available to set aside the same‑-‑Appeal against judgment of Trial Court was dismissed and conviction and sentence recorded by Trial Court, were maintained.

Loung through Superintendent, Central Prison, Hyderabad v. The State 1999 PCr.LJ 595; Abdul Majid v. The S.H.O. 1999 PCr.LJ 277; Fareed Ahmad Langra v. The State 1998 PCr.LJ 1368 and Nusrat alias Nusree v. The State PLD 1994 Lah. 93 ref.

Gauhar Zaman Khan Kundi for Appellant.

Muhammad Sharif Chaudhry, D.A.‑G. for the State.

Date of hearing: 11th November, 2004.

2005 P Cr. L J 380

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

AYUB KHAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Cr. J. A. No.49 of 2004 decided on 1st December, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 386‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.20‑‑‑Appreciation of evidence‑‑‑Accused stood directly nominated in promptly lodged report for commission of offence‑‑‑Complainant and other prosecution witness had fully substantiated charge against accused‑‑‑Both said witnesses were subjected to lengthy and searching cross‑examination, but nothing advantageous could be elicited to shatter their testimony‑‑‑Both witnesses had demonstrated complete unanimity on all important features of the case and no reason appeared to discard their testimony particularly when they had no ulterior motive to falsely charge the accused‑‑‑Overwhelming evidence was available to establish guilt of accused‑‑‑No discrepancy worth the name could be picked up or pointed out in statements of prosecution witnesses‑‑‑All witnesses made consistent statements and had supported and corroborated each other on all material points‑‑‑Non­ production of other prosecution witnesses had nothing to do with the case as prosecution was not bound to produce all witnesses in the case as it was the quality and not the quantity which mattered‑‑‑Prosecution case was further corroborated by abscondence of accused who remained absconded for more than seven months‑‑‑Role attributed to accused was quite distinguishable from the role assigned to acquitted co‑accused‑‑Trial Court, in circumstances had rightly convicted accused‑‑‑Sentence awarded to accused being on higher side, rightly was reduced accordingly.

(b) Penal Code (XLV of 1860) ‑‑‑

‑‑‑‑S. 386‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.20‑‑‑Abscondence of accused‑‑‑Conduct of accused soon after occurrence, would play an important part in determining guilt of accused and would be a corroborative piece of evidence‑‑‑Abscondence of accused was a weak type of evidence and by itself could not be made basis of conviction‑‑‑Question whether abscondence spoke about innocence of accused or his guilt, would be determined keeping in view other circumstances of case.

Muhammad Kamran Khan Niazi for Appellant (on State expenses).

Malik Hamesh Gul Khan for the State.

Complainant in person.

Date of hearing: 1st December, 2004.

2005 P Cr. L J 389

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

BHAI KHAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal 84 of 2004, decided on 2nd December, 2004.

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

‑‑‑‑S. 13‑‑‑Criminal Procedure Code (V of 1898), S.103‑‑‑Appreciation of evidence‑‑‑Sentence, reduction in‑‑‑Both witnesses produced by prosecution to prove the factum of apprehension of accused and recovery of a Kalashnikov, had fully supported the recovery‑‑‑Statements of said witnesses were consistent and reliable and there was no reason to discard their testimony‑‑‑Submission of accused regarding non‑compliance of provisions of S.103, Cr.P.C., was misconceived as in such‑like situation where accused emerged all of a sudden, compliance of provisions of S.103, Cr.P.C. was not an absolute requirement of law‑‑‑Accused could not point out any discrepancy or flaw creating dent in prosecution story and discrepancies highlighted in statements of prosecution witnesses were minor in nature and could not be considered sufficient to vitiate the trial‑‑‑Prosecution had succeeded to establish its case and accused had failed to prove his innocence‑‑‑No legal prohibition existed for police official to be complainant, a witness to the commission of offence and also to be an Investigating Officer, so far as, it would not, in any manner, prejudice accused‑‑‑No such prejudice seemed to have been caused to the accused and it had fully been proved that accused was guilty of offence with which he was charged‑‑‑Sentence awarded to accused, however, was on higher side and accused deserved some leniency‑‑­Sentence awarded to accused by Trial Court was reduced accordingly.

Abdul Wadood v. The State .2001 PCr.LJ 173; Nazif Khan v. The State 2004 PCr.LJ 1011; Abdul Khanan v. The State 2004 PCr.LJ 92 and Wazir v. The State 2003 PCr.LJ 359 ref.

Malik Ehsanul Haq for Appellant.

Saleemullah Khan Ranazai, for the State.

Date of hearing: 2nd December, 2004.

2005 P Cr. L J 393

[Peshawar]

Before Malik Hamid Saeed and Ijaz‑ul‑Hassan Khan, JJ

IMTIAZ ASAD‑‑‑Appellant

Versus

ZAIN‑UL‑ABIDIN and another‑‑‑Respondents

Cr. A. No.556 of 2004, decided on 18th November, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑Prosecution primarily was supposed to establish guilt against accused beyond shadow of doubt by bringing trustworthy, convincing and coherent evidence for the purpose of awarding conviction‑‑‑To convict person on a capital charge, evidence should be of high quality and good standard‑‑‑One substantial doubt was enough to acquit accused.

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

‑‑‑‑S. 417‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Appeal against acquittal‑‑‑Scope‑‑‑To convict a person on a capital charge, evidence should be of high quality and good standard which was not available in the present case‑‑‑Appellant/complainant had failed to show that impugned judgment of acquittal was fanciful or based on no evidence‑‑­Complainant had faked to demonstrate that some material evidence was not taken into consideration by Trial Court, which, in fact had caused gross miscarriage of justice‑‑‑Even otherwise, when accused was acquitted from the charge by a Court of competent‑jurisdiction, then double presumption of innocence was attached to its order, with which High Court and Apex Court normally would not interfere unless impugned order was arbitrary, capricious, fanciful and against record, which was not present in the case‑‑‑Interference in acquittal appeal, would be made only when it appeared that there had been gross misreading of evidence which amounted to miscarriage of justice‑‑­Ordinary scope of appeal against acquittal was considerably narrow and limited‑‑‑Acquittal of respondent/accused in the present case did not suffer from any illegality so as to call for interference of High Court with impugned judgment‑‑‑Evidence in case was highly discrepant and full of infirmities which had created a genuine doubt about involvement of respondent/accused in commission of crime‑‑‑Trial Court had advanced valid and cogent reasons for passing a finding of acquittal in favour of respondent/accused‑‑‑On absence of legal justification to disturb finding of acquittal appeal against same, was dismissed and judgment of acquittal was maintained.

Iftikhar Hussain and others v. The State 2004 SCMR 1185; Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11; Khalid Javed and another v. The State 2003 SCMR 1119; Muhammad Usman and 2 others v. The State 1992 SCMR 498 and The State v. Muhammad Sharif and others: 1995 SCMR 635 ref.

Muhammad Amin Khattak for Appellant.

2005 P Cr. L J 405

[Peshawar]

Before Talaat Qayum Qureshi, J

GHULAM DASTAGIR‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Cr. Misc. No. 1348 of 2004, decided on 2nd December, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), S.489‑B‑‑‑Bail, grant of‑‑­Further inquiry‑‑‑Accused at the time of his arrest was neither exchanging nor buying nor selling nor trafficking in fake currency notes as genuine having reason to believe that same were forged or counterfeit‑‑‑Prosecution was yet to prove through convincing evidence in the Trial Court that offence with which accused had been charged fell under S.489‑B and not 489‑C, P.P.C.‑‑‑No independent witness was associated by police party when alleged recovery from accused was made though same was allegedly effected at a busy place‑‑‑Case of accused, held, was arguable for purpose of bail same being of further inquiry‑‑­Accused was admitted to bail in circumstances.

Sher Ahmad v. The State PLD 1993 Pesh. 104, Abdul Maroof v. The State PLD 1993 Pesh. 167; Shafique Sajid v. The State 1988 PCr.LJ 1553; State through Advocate‑General, N.‑W.F.P. v. Shah Nawaz 1996 MLD 2049 and Hassan v. The State 1984 PCr.LJ 1281 ref.

Pir Fida Muhammad Khan for Petitioner.

Muhammad Ayaz Khan, D.‑A.G. for the State.

Date of hearing: 2nd December, 2004.

2005 P Cr. L J 489

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

SHAH JAHAN‑‑‑Appellant

Versus

THE STATE and another‑‑‑Respondents

Cr. A. 43 of 2004, decided on 22nd December, 2004.

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

‑‑‑‑Ss. 221 & 222‑‑‑Charge‑‑‑Meaning and purpose of‑‑‑Charge was precise formulation of specific accusation made against a person who was entitled to know its nature at the earlier stage‑‑‑Purpose of a charge was to tell an accused as precisely and concisely as possible, the matter on which he was charged and must convey to him with sufficient clearance and certainty what material prosecution intended to produce against him of which he would have to clear himself.

(b) Words and phrases‑--

‑‑‑‑"Charge"‑‑‑Meaning.

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

‑‑‑‑S. 227‑‑‑Penal Code (XLV of 1860), Ss.336/334/34‑‑‑Appreciation of evidence‑‑‑Changing the charge under S.336, P.P.C. to S.334, P.P.C.‑--­Trial Court changed the charge from S.336, P.P.C. to S.334, P.P.C. without affording opportunity of hearing and defence to the accused‑‑­Validity‑‑‑Trial Court had taken erroneous view of the matter‑‑‑Court could not change sections of Jaw without affording opportunity of hearing and providing defence to accused as it would cause prejudice to accused‑‑‑Judgment of Trial Court being legally incorrect, conviction and sentence awarded to accused were set aside and case was remanded to Trial Court for proper adjudication with direction to proceed with same afresh after affording an opportunity of defence to accused in respect of altered charge.

Said Bahadur Shah and another v. The State 2000 PCr.LJ 850 (FSC); Mumtaz Ali and another v. The State 2000 PCr.LJ 367 Kar. and Syed Raza Ali v. The State 2001 MLD 916 ref.

Sanaullah Khan Gandapur for Appellant.

Muhammad Sharif Chaudhry, D.A.‑G. for the State.

Muhammad Afzal Nadir for the Complainant.

Date of hearing: 22nd November; 2004.

2005 P Cr. L J 502

[Peshawar]

Before Ijaz‑ul‑Hassan Khan, J

MUHAMMAD YOUNAS KHAN ‑‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Cr. Rev. No.35 of 2004, decided on 20th December, 2004.

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

‑‑‑‑S. 13‑‑‑Criminal Procedure Code (V of 1898), Ss.435 & 439‑‑­Appreciation of evidence‑‑‑Prosecution, in order to prove apprehension of petitioner/accused and recovery of a pistol of .30 bore from his possession, had produced two witnesses who were unanimous on all material points and their testimony was unimpeachable and invoked confidence about its truthfulness‑‑‑Prosecution had stood on its own legs and had produced sufficient evidence to connect accused with the offence‑‑‑No material discrepancy or, contradiction was found in the statements of said witnesses, rather they were consistent regarding the time and place of recovery and the manner in which it had been effected‑‑‑Said witnesses were subjected to lengthy cross‑examination, but nothing could be gained by defence to discard their statements‑‑‑No animus or mala fides was found in the case‑‑‑Investigation was straight and honest and no substantial defect or infirmity had been pointed out in the evidence through cross‑examination of witnesses‑‑‑No delay was made in recording F.I.R.‑‑‑Non‑association of witness from public alone was not sufficient to affect prosecution case as it was tendency that people from public were reluctant to become witnesses‑‑‑Revision against judgment of Trial Court being meritless, was dismissed, however, having regard to facts and circumstances of case sentence awarded to accused was reduced to sentence already undergone by him.

State through Advocate‑General, Sindh v. Bashir and others PLD 1997 SC 408; Abdul Khaliq v. The State 1996 SCMR 1553; Imran­-ud‑Din v. The State 2004 YLR 1051 Pesh. and Sajjan v. The State 1998 PCr. LJ 1399 Kar. ref.

(b) Criminal trial‑‑‑

‑‑‑‑ Appreciation of evidence‑‑‑Onus to prove‑‑‑When an accused at a criminal trial would take a specific plea, onus invariably would shift on him and he would be required to produce evidence and prove his innocence or at least his plea should be supported by attending circumstances and it should not be unfounded altogether.

Muhammad Yaqoob Khan Marwat for Petitioner.

Saleemullah Khan Ranazai for the State.

Date of hearing: 20th December, 2004.

2005 P Cr. L J 536

[Peshawar]

Before Ijaz‑ul‑Hassan Khan and Ejaz Afzal Khan, JJ

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

Versus

FAQIR MUHAMMAD AHMAD KHAN‑‑‑Respondent

Cr. A. No.64 of 1999, decided on 16th December, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/324/34‑‑‑Appreciation of evidence‑‑‑To convict a person on a capital charge, evidence should be of high quality‑‑‑Prosecution primarily was required to establish guilt against accused beyond reasonable doubt by bringing trustworthy, convincing and coherent evidence for the purpose of awarding conviction.

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

‑‑‑‑S. 417(2‑A)‑‑‑Penal Code (XLV of 1860), Ss.302/324/34‑‑‑Appeal against acquittal‑‑‑Scope‑‑‑Judgment of acquittal returned by Trial Court was fair judgment based on proper, just and legal appreciation of evidence on record‑‑‑Appellant/complainant had failed to show that impugned judgment of acquittal was fanciful or based on no evidence‑‑­Evidence of prosecution had been fairly and properly appreciated to secure the ends of justice‑‑‑Judgment was based on sound reasons and was neither artificial, or ridiculous, nor was based on misreading of evidence leading to miscarriage of justice‑‑‑Prosecution having not been able to prove its case against accused beyond any reasonable doubt, Trial Court had rightly extended benefit of doubt to accused and acquitted him of the charge‑‑‑There being no substance in appeal against acquittal, same was dismissed and impugned order of acquittal of accused was maintained.

Mirza Noor Hussain v. Farooq and 3 others 1993 SCMR 305 ref.

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

‑‑‑‑Ss. 410 & 417‑‑‑Appeal against conviction and. appeal against acquittal‑‑‑Assessment of evidence‑‑‑Difference between‑‑‑Standards of assessing evidence in appeal against acquittal were quite different from those laid down for appeal against conviction‑ ‑‑Marked difference existed between appraisal of evidence in appeal against conviction and in appeal against acquittal‑‑‑Appraisal of evidence, in appeal against conviction, was done strictly and in appeal against acquittal such rigid method of appraisal was not to be applied as there was already finding of acquittal given by Trial Court after proper analysis of evidence on record‑‑‑Scope of appeal against acquittal of accused was considerably narrow ‑and limited‑‑‑Unless acquittal judgment of Trial Court was perverse, completely illegal and on perusal of evidence, no other decision could be given except that accused was guilty or there had been complete misreading of evidence leading to miscarriage of justice, High Court would not exercise jurisdiction under S.417, Cr.P.C.‑‑‑High Court was always slow in exercise of jurisdiction under S.417, Cr.P.C. unless it found that gross injustice had been done in administration of criminal justice.

Muhammad Usman and 2 others v. The State 1992 SCMR 498; The State v. Muhammad Sharif and others 1995 SCMR 635 and Yar Muhammad and 3 others v. The State 1992 SCMR 96 ref.

Muhammad Sharif Chaudhry, D.A.‑G. for the State.

Abdul Latif Khan Baloch for the Complainant.

Sanaullah Khan Gandapur for Respondent.

Date of hearing: 16th December, 2004.

2005 P Cr. L J 623

[Peshawar]

Before Shahzad Akbar Khan and Fazlur Rehman Khan, JJ

Maulana MUHAMMAD ILYAS QADRI---Petitioner

versus

SUPERINTENDENT OF POLICE, HARIPUR DISTRICTand 3 others---Respondents

Writ Petition No.234 of 2002, heard on 21st September, 2004.

Penal Code (XLV of 1860)---

----S. 182---Criminal Procedure Code (V of 1898), S.195---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of proceedings---Petitioner had sought quashing of proceedings initiated against him under S. 182, P.P.C. in the Court of Judicial Magistrate alleging that complaint filed by Police against him under S.182, P.P.C. was not competent as it was contrary to mandatory provisions of S.195, Cr.P.C. under which any offence punishable under Ss. 172 to 188, P.P.C. would be taken cognizance of only when complaint was made in writing by public servant concerned or by some other public servant to whom he was subordinate---Public servant concerned in the present case, was S.H.O. of Police Station concerned whereas complaint against petitioner under S. 182, P.P.C. had been filed by another official of said Police Station who being subordinate to S.H.O. was wholly incompetent---Validity---When a thing was required to be done by law in a particular manner it should be done in that manner or not at all---Complaint in the present case having been filed by a person not authorized by law, no proceedings could be initiated against petitioner on such invalid complaint---High Court allowing Constitutional petition set aside impugned proceedings initiated against petitioner in the Court of Magistrate observing that public servant concerned could file a fresh complaint in absence of any legal bar in his way.

Khalid Rehman Qureshi for Petitioner.

Qari Abdur Rashid, A.A.-G. for Respondents.

Date of hearing: 21st September, 2004.

2005 P Cr. L J 739

[Peshawar]

Before Ejaz Afzal Khan and Muhammad Raza Khan, JJ

ZAREEN SHAH---Appellant

versus

THE STATE and 4 others---Respondents

Criminal Appeal No.113 with Murder Reference No.12 of 2004, decided on 17th January, 2005.

Penal Code (XLV of 1860)---

----Ss. 302(b), 392 & 449---Appreciation of evidence---Incident was blind and was not witnessed by anyone---Prosecution to prove its case, mainly relied on circumstantial evidence which consisted of recovery of shotgun, blood-stained lace of accused, golden ornament, positive reports of Forensic Science Laboratory and statement of accused---Accused in answer to a question put by Magistrate before recording his confessional statement had clearly stated that he was tortured and beaten by police---Confessional statement so made could not be termed as voluntary---Alleged confessional statement of accused was neither voluntary, nor rang true nor fitted in with surrounding circumstances---Recovery of shotgun in the manner it was alleged by prosecution also appeared to be doubtful and could not be of much consequence when confessional statement which was bed-rock of prosecution case stood eroded notwithstanding positive report of Forensic Science Laboratory, when manipulation of empties at the hands of police was too common a phenomenon and they despite proving the use of shotgun in the crime, did not prove that it was used by accused---Recovery of golden ornaments would also do little to improve the case of prosecution firstly because there was no allegation that ornaments had been stolen from the house of the deceased; secondly because no proof had been brought on the record to show that they belonged to deceased and thirdly because no identification parade was held to establish their origin or ownership---Recovery of blood-stained lace too would prove nothing against accused when grouping of blood had not been done---Circumstantial evidence could only form basis for conviction when it was incompatible with innocence of accused on one hand and incapable of explanation on any other reasonable hypothesis than that of his guilt on the other, which was not the case---Charge against accused having not been proved beyond any shadow of doubt, conviction and sentence recorded by Trial Court against accused were set aside and he was acquitted of charge and was set free.

Muhammad Riaz and 3 others v. The State PLD 1994 Pesh. 102; Murtaza and 2 others v. The State and another1996 PCr.LJ 358; Gul Tiaz Khan v. The State PLD 2004 Pesh. 299; Noor Ahmad v. The State and another 2004 SCMR 796 and Khadim Hussain v. The State 2004 PCr.LJ 1102 ref.

Sanaullah Khan Gandapur for Appellant.

Saleemullah Khan Ranazai for the State.

Muhammad Iqbal Chumcha for the Complainant.

Date of hearing: 17th January, 2005.

2005 P Cr. L J 748

[Peshawar]

Before Shah Jehan Khan, J

BASHIR KHAN---Petitioner

versus

THE STATE through Advocate-General N.-W.F.P. and another---Respondents

Criminal Miscellaneous No.96 of 2005, decided on 21st February, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 427, 148 & 149---Bail, refusal of---Accused was granted ad interim bail, but he opted for abscondence and did not turn up for confirmation of ad interim bail granted to him and consequently said petition for bail before arrest was dismissed---No justifiable reason for his non-appearance in the trial of his co-accused had been furnished by accused---Accused surrendered only after recording acquittal of his co-accused---Evidence recorded in absence of accused could not be used against him and fate of such an accused was to be decided on the evidence recorded in his presence---When evidence recorded in absence of an accused could not be used for his conviction, same could also not be used for the benefit of that accused---Abscondence of accused could be either deliberate or due to lack of knowledge about the registration of the case or could be due to the fear of Investigating Agency or for any other just cause---Concession of bail could be refused to an absconder when Court arrived at the conclusion on tentative assessment from available record, that abscondence was wilful and noticeable---Accused could be allowed bail on making tentative assessment of prosecution evidence and ignoring factum of abscondence for certain reasons---Practice of accused to abscond to wait for the result of co-accused’s trial and surrendered only when under trial co-accused earned acquittal, was highly deplorable---Such accused should not be allowed concession of bail which would amount to put premium on the mockery on law---Allowing concession of bail to a wilful absconder would create a sense of insecurity among people and cause disturbance in the society---No outlaw deserved concessionary relief which could be extended to those who surrendered before law---No universal rule existed to the effect that either a fugitive from law should be enlarged on bail or he should be refused bail in all circumstances---If an absconder was found not reasonably connected with commission of offence he could be extended concession of bail irrespective of his abscondence or acquittal of co-accused, but if prima facie an absconding accused was found reasonably connected with the offence for capital sentence, abscondence could be taken into account as additional ground for refusal of bail---Accused, in the present case, did not refer at all to case of prosecution except grant of acquittal of co-accused which was of no use for accused---Accused was not entitled for grant of bail, in circumstances.

State v. Malik Mukhtar Ahmad Awan 1991 SCMR 322; Rais Khan v. Said Hanif and another 1979 SCMR 90; Jan Muhammad v. The State 1978 SCMR 287; Ibrahim v. Hayat Gul and others 1985 SCMR 382; Sardar v. The State PLD 1979 Pesh. 16; Muhammad Imranullah Khan v. The State 1995 PCr.LJ 167; 1999 YLR 2245 and Muhammad Sadiq’s case PLD 1985 SC 182 ref.

Muhammad Zahoorul Haq and Muhammad Anwar for Petitioner.

Muhammad Ayaz A.A.-G. for the State.

M. Mohibullah Kakakhel for the Complainant.

Date of hearing: 21st February, 2005.

2005 P Cr. L J 791

[Peshawar]

Before Muhammad Raza Khan, J

MUHAMMAD IQBAL KHAN alias IQBAL KHAN---Petitioner

versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No.379 of 2004, decided on 14th February, 2005.

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

----S. 497---Bail---Ambiguity in type of weapon of offence---Miscalculation of distance stated in site plan---Effect---Such minor niceties or minute analysis of facts and circumstances could be considered at the time of disposal of case during trial or at appeal stage, but such exercise was neither desirable nor of any use at bail stage.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324/429/34---Bail, refusal of---Ambiguity in type of weapon of offence---Miscalculation of distance stated in site plan---F.I.R. disclosed the use of .303 rifle and kalashnikov by accused---Medical report indicated that deceased was killed through fires of shotgun; and that blackening and charring marks were present at the entry points of wounds---Complainant in supplementary statement explained that accused was holding a shotgun, which appeared to be a .303 bore rifle---Trial Court refused bail to accused---Validity---Such minute analysis of facts and circumstances would neither be desireable nor of any use at bail stage---At the time of armed confrontation, normally not possible for complainant and eye-witnesses to determine exactly the type of weapon of offence and exact distance in inches---In a panic, observation might not be as exact as in normal situation---Such type of contradiction, if any, might indicate the truth of prosecution story as narration of microscopic and photographic details of the manner of occurrence and weapons of offence might indicate that F.I.R. had been lodged after conduct of investigation and receipt of medico-legal report---Unless someone was genius, in situation of panic during the moments of commission of gravest offence like murder, normal mind would not be supposed to preserve every act of the scene and report same in minute exactitude to investigating agency---In the present case, there was no chance of mistaken identity of accused nor there was any mala fide for false charge---Situation had developed at the spot over a petty matter, but accused committed gravest offence for pettiest dispute---Only one accused had been arrested, while others were still at large---Release of accused on bail at such stage would practically nullify entire nature of offence---Accused was refused bail in circumstances.

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

----S. 497---Bail, grant or refusal of---Essential considerations---At bail stage, generally it would be seen, whether accused was charged for commission of offence directly without any ambiguity about his identification; and whether there was any mala fide of false accusation.

Gohar Zaman Kundi for Petitioner.

Muhammad Sharif Chaudhry, D.A.-G. for the State.

Muhammad Yaqoob Khan Marwat for the Complainant.

Date of hearing: 14th February, 2005.

2005 P Cr. L J 828

[Peshawar]

Before Malik Hamid Saeed, J

MUJIB-UR-REHMAN---Petitioner

versus

THE STATE and another---Respondents

Criminal Revision Petition No.1 of 2005, decided on 10th March, 2005.

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

----S. 302/34---Criminal Procedure Code (V of 1898), Ss.439 & 561-A---Appreciation of evidence---Plea of alibi raised by accused---Police certified innocence of accused after verification---Trial Court relieved accused from trial for the time being with observations that he would be put to trial, if some material evidence was brought on record against him---Validity---Opinion of police was based on material collected during investigation---Police had showed innocence of accused with proper reasons---Exercise of power by Trial Court under such circumstances could not be declared as illegal by High Court in absence of any good reason---High Court dismissed revision.

(b) Criminal trial---

----Opinion of police---Evidentiary value---Mere opinion about innocence of accused would have no persuasive value for Court.

Salah-ud-Din for Petitioner.

Malik Hamesh Gul for the State.

Muhammad Yaqoob Khan for Respondent.

Date of hearing: 10th March, 2005.

2005 P Cr. L J 994

[Peshawar]

Before Talaat Qayum Qureshi, J

BAHAR and another‑‑‑Petitioners

Versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous No. 156 of 2005, decided on 15th April, 2005.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.337‑J, 381‑A & 34‑‑‑Bail, refusal of‑‑‑Accused could not be enlarged on bail because, prima facie, case was connecting them with commission of offence; accused though were not charged by name in F.I.R., but complainant in his supplementary statement recorded by Investigating Officer and in his statement recorded under S.164, Cr.P.C. had charged accused for commission of offence; snatched vehicles and unlicensed pistol were recovered from the possession of accused on the very day of occurrence and identity card and driving licence of complainant were also recovered from possession of accused along with vehicles which prima facie had connected accused with commission of offence‑‑‑Snatching cars by using various methods had become menace of the day which had made life and property of common citizens insecure‑‑‑Accused, who had been involved in an heinous offence, concerning the society, did not deserve concession of bail.

2003 SCMR 426; 2003 PCr. LJ 544 and PLD 1997 SC 545 ref.

Abdul Latif Afridi for Petitioners.

Akhtar Javed, Dy. A.‑G. for the State.

Complainant in person.

Date of hearing; 15th April, 2005.

2005 P Cr. L J 1173

[Peshawar]

Before Shah Jehan Khan and Salim Khan, JJ

ARIF ULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.196 of 2005, decided on 27th April, 2005.

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

----S. 9(c)---Appreciation of evidence---Recovery of Charas from the accused had been proved by reliable and convincing prosecution evidence---However, no separate sample was taken from each of the 15 slabs recovered from the accused and thus, it could not be said with certainly as to how many slabs except the one from which sample was taken actually contained Charas---Prosecution, thus, had failed to prove beyond doubt that the quantity of recovered Charas exceeded one kilogram---Conviction of accused was consequently maintained, but his sentence was materially reduced in circumstances.

Shahid Qayum Khattak for Appellant.

Obaidullah Anwar, A.A.-G. for the State.

Date of hearing; 27th April, 2005.

2005 P Cr. L J 1183

[Peshawar]

Before Salim Khan, J

TAHIR alias MALANG---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.58 of 2005, decided on 19th April, 2005.

Foreigners Act (XXXI of 1946)-----

----Ss. 3, 14, 14-B & 14-C---Orders of the Court regarding deportation---Maintainability---Petitioner who was convicted and sentenced under S.14 of Foreigners Act, 1946, 'had already undergone period of his imprisonment for the main sentence and had paid fine---Submission of petitioner was that observations/orders of the Court regarding deportation were extraneous to provisions of S.14 of Foreigners Act, 1946 and being not required in circumstances of case, could be quashed as neither request for them was made to the Court nor any arrangement for deportation of petitioner was made--Provisions of 5.14 of Foreigners Act, 1946 were related only to the grant of punishment and supplied no other purpose including the deportation---Federal Government could, by orders, make provisions either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigners, for prohibiting, regulating or restricting their entry into Pakistan or their departure therefrom or their presence or continued presence therein, in accordance with S.3 of Foreigners Act, 1946---Judicial Magistrate/the Court was not responsible to have gone beyond the scope of provisions of S.14 of Foreigners Act, 1946---Impugned remarks of Judicial Magistrate were uncalled for and unnecessary---Remarks and. observations of Judicial Magistrate, were recalled by the High Court, in circumstances.

M. Zahurul Haq and Abdul Fayaz Khan for Appellant.

Wasim Tariq for the State.

Date of hearing: 19th April, 2005.

2005 P Cr. L J 1191

[Peshawar]

Before Talaat Qayum Qureshi, J

HAROON BADSHAH---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.330 of 2005, decided on 16th May, 2005.

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

----S. 498---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Ad-interim pre-arrest bail, refusal of---Two deceased persons were done to death in a broad-daylight occurrence---Accused was directly charged in promptly lodged F.I.R. for effective firing---Investigating Officer had received 36 empties of 7.62 bore---One of deceased received 6 entry, 6 exit and one graze wounds, whereas other deceased had received 5 entry, 5 exit and one graze wound on their persons---Post-mortem report fully supported case of prosecution---Eye-witness in his statement recorded under S.161, Cr.P.C. had supported case of prosecution-One of prosecution witnesses had proved motive in his statement recorded under S.164, Cr.P.C.---Alleged plea of alibi was not taken by accused before Trial Court---Since accused himself had not taken any specific plea of alibi, same could not be taken into consideration at later stage---Strong prima facie case connecting accused with commission of offence within prohibitory clause of S.497, Cr.P.C. existed, accused could not be released on bail.

2003 PCr.LJ 1738 and 2002 PCr.LJ 775 ref.

Haji Muhammad Zahir Shah for Petitioner.

Malik Akhtar Naveed, Deputy Advocate-General and Muhammad Amin Khattak Lachi for the State.

Date of hearing: 16th May, 2005.

2005 P Cr. L J 1198

[Peshawar]

Before Shahzad Akbar Khan and Salim Khan, JJ

GUL KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Appeal No.73 of 2004, decided on 13th April, 2005.

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

----S. 9(c)---Appreciation of evidence---Stopping of the Bus from which the narcotics were recovered at the scene of occurrence as well as in the presence of passengers therein, was not proved---Said Bus though allegedly used for commission of the offence and being a case property. was neither taken into possession nor produced at the time of trial in the Court to show that there was space under its rear seat which could accommodate eight legs of Billiard Table containing 33 kilograms Charas and 12 kilograms opium allegedly smuggled from foreign country---Said legs of the Billiard Table and the two plastic bags in which the same were wrapped being the case property and a piece of material evidence were never produced before the Court to show that the same really had cavities enough to accommodate such huge quantity of narcotics---Presence of accused in the Bus, recovery of the legs of the Billiard Table from his possession or custody and his ownership of the same were not proved on record---Neither the quantity of the Charas and opium recovered from each leg of the Billiard Table nor the preparation of samples therefrom was ever proved positively by the prosecution---Recovered contraband Charas and opium were not even produced in the Court at the time of trial and it was not established that the same had been smuggled in the country---Case against accused, thus, was of no evidence, rather it was a case of destroyal, destruction and suppression of evidence of the prosecution---Accused was acquitted in circumstances.

2005 CLC 123 ref.

(b) Criminal jurisprudence---

----Administration of justice---Principle---Any number of accused may escape unpunished for lack of sufficient evidence or for the reason that the prosecution has failed to prove their guilt beyond reasonable doubt, but no innocent person should be convicted or punished for what he has not done.

2005 CLC 123 ref.

Noor Alam Khan for Appellant.

Hamid, Farooq Durrani, D.A.-G. for the State.

Date of hearing: 13th April, 2005.

2005 P Cr. L J 1212

[Peshawar]

Before Shahzad Akbar Khan and Ijaz-ul-Hassan Khan, JJ

GUL MUHAMMAD---Appellant

Versus

RIAZ-UD-DIN and another---Respondents

Criminal Appeal No.19 and Murder Reference No.3 of 2004, decided on 1st March, 2005.

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

---Ss. 302 & 34---Appreciation of evidence---Relationship of eye-witness with deceased---Effect---Mere relationship of eye-witness with deceased, in absence of any animus on their part against accused, could not be made basis of brushing aside their testimony which otherwise was convincing in nature.

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

---Ss. 302 & 34---Appreciation of evidence---Two ocular witnesses had given consistent, cogent and natural account of occurrence despite lengthy cross-examination during trial---Nothing material could be brought out which could be said to have militated against their credibility or veracity of the version put forward by them---Said witnesses were not chance witnesses as they had fully justified their presence at the spot---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 those witnesses towards him which could be said to have prompted them to implicate accused falsely in the case---Medical evidence was in complete harmony with the prosecution case and corroborated ocular testimony as regarded injuries and same was rightly received as corroborative to ocular testimony---Pistol of .30 bore along with three live rounds of same bore and fixed charger, were recovered from his possession and report of Fire-Arms Expert was positive and report of Serologist was also in positive---Said report had provided sufficient corroboration to prosecution version---Even if confessional statement of accused did not appear to be voluntary, prosecution had brought sufficient material on record to connect accused with crime in question---Accused was alleged to be a hired assassin, but nothing was on record in support of such assertion---Motive leading to incident had remained in mystery---Sentence of death passed against accused was converted into sentence of imprisonment for life in the interest of justice.

PLD 1971 SC 751 and 1969 SCMR 64 ref.

Bashir Ahmad Tangi and Shahabuddin Burq for Appellants.

Wahidullah Khan, D.A.-G. for the State.

Khalid Khan for the Complainant.

Date of hearing; 1st March, 2005.

2005 P Cr. L J 1225

[Peshawar]

Before Talaat Qayum Qureshi, J

ZABITA KHAN and 2 others ---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.340 of 2005, decided on 16th May, 2005.

Criminal Procedure Code (V of 1898)---

---S. 497(2)---Penal Code (XLV of 1860), Ss.324, 148 & 149---Bail, grant of---Further inquiry---Seven persons were charged for a single injury at anterior aspect of right thigh midway between hip and knee which was found simple---Injured was examined after about two and a half hours after occurrence had taken place, while distance between the place of occurrence and hospital was only two kilometres---No reason whatsoever had been given for delay in examining the injured---No specific role had been attributed to accused---Injury caused to complainant was on non-vital part of the body---Was yet to be determined whether accused shared common intention to kill injured---Case of accused, in circumstances would fall in the category of further inquiry---Accused were admitted to bail, in circumstances.

Arshad Abdullah for Petitioners.

Muhammad Saeed Khan, Addl. A.-G. for the State.

Imtiaz-ur-Rehman for the complainant.

Date of hearing: 16th May, 2005.

2005 P Cr. L J 1228

[Peshawar]

Before Shahzad Akbar Khan and Fazlur Rehman Khan, JJ

Mian MUHAMMAD AJMAL and another---Petitioners

Versus

THE STATE and 3 others---Respondents

Writ Petition No.217 of 2003 and C.M. No.197 of 2003, decided on 16th September, 2004.

Penal Code (XLV of 1860)---

--Ss. 408 & 34---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), Ss.5, 7 & 20---Criminal Procedure Code (V of 1898), S.403---General Clauses Act (X of 1897), S.26---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Disputed property was under hypothecation with Bank for return of loan and removal of same without its consent, had constituted an offence under S.20 of Financial Institutions (Recovery of Finances) Ordinance, 2001---Banking Court had already taken cognizance of the matter and same, irrespective of fact whether it was a civil liability or criminal or both, exclusively lay within its jurisdiction---Registration of case vide impugned F.I.R. against petitioners, was not only without jurisdiction and lawful authority, but trial of petitioners in pursuance of same would also amount to double jeopardy, which was not permissible under law---Impugned F.I.R. was quashed in circumstances.

1993 PCr.LJ 1056 and PLD 2001 Lah. 399 ref.

Khuram Ghias Khan for Petitioners.

Qari Abdul Rashid, D.A.-G. for the State.

Malik Mehmood Akhtar for Respondent No.4.

Date of hearing: 16th September, 2004.

2005 P Cr. L J 1240

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

AMANULLAH---Applicant

Versus

ALAMZEB and 3 others---Respondents

Criminal Miscellaneous Application No.211 of 2005, decided on 13th May, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.324, 435 & 34---Bail, cancellation of---Accused was directly nominated in the promptly lodged report for commission of crime---Specific role of firing had been attributed to accused which had culminated in injuries to the complainant---Sections of law under which accused was charged were non-bailable and fell within the prohibitory clause of S.497, Cr.P.C.---Grant of bail was discretionary relief which could only be extended to accused about whom the Court was satisfied that he was not connected with commission of offence at all---Merely on ground that case of accused was of further inquiry without any legal basis, would not mean that accused should be released on bail---Every case, more or less, was of further inquiry which did not mean that every accused should be extended concession of bail---Accused was not entitled to concession of bail---Bail granted to accused by Trial Court was withdrawn and accused was ordered to be taken into custody to be dealt with in accordance with law.

Sardar Munir Ahmad Dogar v. The State PLD 2004 SC 822 ref.

Abdul Latif Afridi for Applicant.

Mrs. Neelam Khan for Respondents.

Syed Sardar Hussain for the Complainant.

Date of hearing: 13th May, 2005.

2005 P Cr. L J 1245

[Peshawar]

Before Salim Khan, J

IFTIKHAR alias JARMAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.234 of 2005, decided on 2nd May, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)---Bail, grant of---Accused had been shown as a boy, but his exact age had not been mentioned---Application of the Investigating Officer addressed to the Chemical Examiner was dated 25-2-2005---Report of the Chemical Examiner showed that the parcels were received in the Laboratory on 12-3-2005---Prosecution had to explain the delay between 25-2-2005 and 12-3-2005 in the light of R.4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001, and to prove that the sample were safe during the said period which was not done---Keeping in view the young age of the accused, the quantity of the Charas and the investigation, bail was allowed to accused.

2005 PCr.LJ 345 ref.

Muhammad Fakhre Alam Khan Jhagra for Petitioner.

Sabitullah Khan for the State.

Date of hearing: 2nd May, 2005.

2005 P Cr. L J 1261

[Peshawar]

Before Talaat Qayum Qureshi, J

MUMTAZ REHMAN and 2 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.372 of 2005, decided on 16th May, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Bail, grant of---F.I.R. was lodged with a delay of about eleven hours and said delay remained unexplained---Prosecution witness, who was examined under S.164, Cr.P.C., had admitted in his cross-examination that F.I.R. was lodged after deliberation and consultations---Two star witnesses in their statements recorded under S.161, Cr.P.C. as well as under S.164, Cr.P.C., did not utter a single word with regard to occurrence---Said witnesses had not seen the deceased on the spot---Prosecution also had relied upon pointation made by the tracker dogs which were brought on the request of elders of the locality---Evidence revealed that tracker dogs had only pointed out the "house" of accused---Possibility was that any other person after having committed offence might have gone to the house of accused which was pointed out by tracker dogs, but said evidence would be established and seen after recording statements of prosecution witnesses in that regard---Prosecution neither examined elders of the locality who managed tracker dogs nor statement of person who brought tracker dogs---No sufficient evidence was available on record to connect accused with the commission of offence---Accused were admitted to bail, in circumstances.

2004 MLD 335; 1999 PCr.LJ 1323; 2003 PCr.LJ 293; PLD 2004 Lah. 829; 2001 PCr.LJ 1420 and Ijaz Ahmad and another v. The State 1997 SCMR 1279 ref.

Abdul Samad Khan for Petitioners.

Malik Akhtar Naveed Dy. A.-G. for the State.

Sakhi Janan for the Complainant.

Date of hearing: 16th May, 2005.

2005 P Cr. L J 1269

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

MERAJ---Petitioner

Versus

GOHAR ALI and another---Respondents

Criminal Miscellaneous No.318 of 2005, decided on 16th May, 2005.

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

---S. 497---Bail, grant of---Principles---While considering the bail matter of an accused involved in a non-bailable offence, if there appeared reasonable grounds for believing that he was guilty of an offence punishable with death or imprisonment for life, he would not be released on bail unless case was ,covered by any of provisions in subsection (1) of S.497, Cr.P.C.---If it appeared to the Court at any stage of investigation, inquiry or trial that there were no reasonable grounds, but there were sufficient grounds for further inquiry into his guilt, accused would be released on bail under subsection (2) of S.497, Cr.P.C.---Exercise carrier' out by the Court, in matters concerning bail, was a preliminary one and was restricted to a tentative sifting of evidence on record as opposed to elaborate scrutiny---Court had only to see whether accused was connected with the commission of crime or not---For that purpose only tentative assessment of evidence was to be made and deeper appreciation was not called for---It was the mind of the Court which was to be satisfied whether the case under consideration was fit case or not for grant of bail.

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

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Bail, refusal of--Alleged incident was one of broad-daylight---Matter was reported to police with promptitude---Accused was directly nominated for having participated in commission of crime---Medical evidence and witnesses had fully supported the charge against accused---Nine empties of 7.62 bore had been recovered from the spot---Accused remained fugitive from law for sufficient long time---Plea of alibi raised by accused, in view of attending facts and circumstances of case, could not be taken into consideration---No case for grant of bail had been made out, in circumstances---Bail application was rejected and bail was refused.

Malik Muhammad Saleheen and others v. Arshad Siddiq and 2 others 1997 SCMR 1829; Khalid Javed Gillan v. The State PLD 1978 SC 256; Asmatullah and another v. The State and another 2004 PCr.LJ 2023; Habibur Rehman Khan v. S. Mustafa Abbas and others PLD 1989 SC 20; Iqbalur Rehman v. The State PLD 1974 SC 83 and Faiz Bakhsh alias Faizu v. The State and another 1989 SCMR 977 ref.

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

----S. 497---Precedent in one bail matter---Application in other, bail matter---Case-law in one bail matter was not necessarily to be applicable in the other bail matter because every case was to be decided keeping in view its own particular facts and circumstances.

Khawaja Muhammad Khan Gara for Petitioner.

Roohul Amin and M. Wasim Tariq for Respondents.

Date of hearing: 16th May, 2005.

2005 P Cr. L J 1278

[Peshawar]

Before Shah Jehan Khan and Salim Khan, JJ

FIDA MUHAMMAD---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No.576 of 2004, decided on 27th April, 2005.

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

----S. 9---Penal Code (XLV of 1860), Ss.419/171/472---Appreciation of evidence---Non-production of case property at the time of trial in the absence of any order or certificate regarding its destruction, had created a serious doubt about existence of the same---Prosecution evidence on all other material facts inspired confidence except the bulk and actual weight of the narcotics---Recovery of 412 grams of Charas as per samples was, however, proved from the possession of accused---Huge quantity of narcotics could not be expected to have been placed in the dicky of the car without the conscious knowledge of the accused---Convictions of accused were upheld accordingly, but the sentence of imprisonment for life awarded to each accused under S.9 of the Control of Narcotic Substances Act, 1997, was reduced to five years' R.I. in circumstances.

Abdul Fayaz for Appellant.

Muhammad Ayaz Khan, A.A.-G. for the State.

Date of hearing: 27th April, 2005.

2005 P Cr. L J 1414

[Peshawar]

Before Malik Hamid Saeed, J

ABDUL BARI---Appellant

Versus

THE STATE and others---Respondents

Jail Criminal Appeal No.692 of 2004, heard on 20th October, 2004.

Penal Code (XLV of 1860)---

----Ss. 380 & 457---Appreciation of evidence---Matter was not reported to police promptly; it was after about 12/13 days of the occurrence when complainant recorded his report to the police without naming anyone---Such a delay in reporting the matter was very material in the facts and circumstances of case---Accused had been found guilty of the charge on account of his alleged confessional statement and recovery of some stolen property on his pointation---Accused was produced before Magistrate for confessional statement after 7/8 days of police custody---Such a long custody, by itself, had pointed out to using third degree method by the police for getting confessional statement of accused---Very confession had been recorded by Magistrate on oath which had become illegal and could not be accepted---Recovery of stolen articles on the pointation of accused, was not free from doubt because alleged recovery only pertained to petty items of stolen property such as female clothes and some documents, which too had allegedly been shown to be recovered from a jungle after about 5 days of arrest of accused---Said clothes were neither exhibited at the trial nor any detail thereof regarding colour/print had been mentioned in the recovery memo.---Co-accused and taxi driver who had disclosed that he had brought three accused in the night to the village of complainant were not produced at the trial---When other co-accused had already been acquitted of the charge, accused could also not be reasonably connected with commission of offence only on the basis of his alleged confessional statement and pointation memo., when such evidence was not admissible under the law---Prosecution having failed to bring home charge to accused beyond any shadow of reasonable doubt, accused deserved acquittal from the charge while "extending him benefit of doubt---Impugned judgment of Trial Court and sentence awarded to accused were set aside and accused was acquitted of the charge.

Aftab Khan for Appellant.

Nizar Muhammad for the State.

Nemo for the Complainant

Date of hearing: 20th October, 2004.

2005 P Cr. L J 1421

[Peshawar]

Before Shahzad Akbar Khan and Ijaz-ul-Hassan Khan, JJ

GUL REHMAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.332 of 2004, decided on 19th May, 2005.

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

----S. 9(c)---Appreciation of evidence---Sentence, reduction in---Accused while travelling in vehicle was found in possession of a "Gathri" lying in between his feet---Search of said "Gathri" led to recovery of "Pukhta Charas" which was weighed and found 15.500 grams---Meagre quantity of four grams was separated from recovered material and .sent to office of Chemical Examiner for analysis and remaining was sealed into parcels---Ownership of "Gathri" though was denied by accused, but same stood satisfactorily proved through deposition of two prosecution witnesses---Accused was owner of `Gathri' containing contraband material---Prosecution witnesses produced in support of recovery had demonstrated complete unanimity on all material features of case and nothing could be gained by defence to shatter their veracity---Report of Chemical Examiner was in positive---Charas in question consisted of slabs and one of such slabs was weighed and found 1770 grams---Nothing was available on record to show whether sample for examination was taken out from each slab to ascertain that 15 and half kilograms was Charas or some other commodity having resemblance with the colour of Charas---Sample was taken out from only one slab report of which was positive and in absence, of any sample taken out from others, it would not be possible to hold that remaining slabs were of Charas or otherwise---Culpability of accused, in circumstances, could only be regarding one slab from which sample was taken and accused could be held guilty to that extent only---Sentence of imprisonment for life awarded to accused by Trial Court was reduced to 14 years' R.I.

Muhammad Hashim v. The State PLD 2004 SC 856 and Farid Gul v. The State 2002 PCr.LJ 1810 ref.

Ishtiaq Ibrahim for Appellant.

Muhammad Wasim Tariq for the State.

Date of hearing: 19th May, 2005.

2005 P Cr. L J 1432

[Peshawar]

Before Talaat Qayum Qureshi, J

FAWAD SHAH---Petitioner

Versus

THE STATE and another---Respondents

B.A. No.1356 of 2000, heard on 20th February, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 34, 148 & 149---Bail, refusal of---Accused though was not charged in F.I.R. by complainant for murder of his brother, but later on complainant charged the accused in his statement recorded under S.164, Cr.P.C. for commission of offence---Rikshaw driver in his statement under S. 164, Cr.P.C. also charged the accused of offence---Case of prosecution was supported by recoveries of 16 empties of 7.62 bore, blood-stained earth from the spot and one spent bullet,--Post-mortem report supported the case of prosecution---Case of co-accused who had been enlarged on bail by Trial Court, was not at par with the case of the accused as role assigned to the co-accused was quite different from the one assigned to the accused---Rule of consistency was not attracted to the case of accused, in circumstances---Prima facie case connecting accused with commission of offence was present and reasonable grounds existed for believing that accused was guilty of offence punishable with death or transportation of life---Accused could not be released on bail, in circumstances.

Abdul Hamid v. The State PLD 1997 Lah. 164 ref.

Mian Manzoor Rehman for Petitioner.

Aftab Khan for the State.

Date of hearing: 20th February, 2004.

2005 P Cr. L J 1459

[Peshawar]

Before Ejaz Afzal Khan, J

AKBAR KHAN and another---Appellants

Versus

THE STATE and another---Respondents

Jail Criminal Appeal No.680 of 2004, decided on 18th October, 2004.

Penal Code (XLV of 1860)---

---Ss. 324 & 34---Appreciation of evidence---Abscondence of accused---Effect---According to statements of prosecution witnesses, as many as 20/25 shots were fired by accused but not even a single empty of either of the weapons was recovered from the spot---Both prosecution witnesses had stated that complainant was fired at from a distance of 6/7 paces, but no exit wound was found on his person by the Doctor---Complainant, in circumstances either was injured by a stray bullet or that he was fired at from a distance of more than 100 and 150 paces---Occurrence could not be said to have taken place in the manner described by prosecution---No implicit reliance could be placed on testimony of prosecution witnesses in view of conflicting motives as set up in F.I.R. and the one recorded in the Court---Doctor, who medically examined complainant, had never appeared in the Court to testify to the correctness of Medico-Legal Report---Trial Court too seemed to have bypassed that aspect of the case with its mind and eyes closed while permitting production of secondary evidence to prove Medico-Legal Reports---Inference, in circumstances, would be unavoidable that had witnesses been produced they would have gone against the prosecution---Maintaining conviction of accused was not safe when it was not specified as to whose fire hit complainant and no other supporting evidence was available to justify the pinning of guilt on anyone of the accused---Absence of empties and blood-stained earth from the spot was yet another circumstance which also militated in a given background of case against the veracity of prosecution witnesses--Evidence on record being not credible and worth reliance, mere fact that accused remained absconder, could not remedy the defects and infirmities in prosecution case---Charge against accused, in circumstances had not been proved beyond any shadow of reasonable doubt---Conviction and sentence recorded by Trial Court against accused, were set aside and they were acquitted of the charge against them and were set free.

Aftab Khan for Appellants.

Muhammad Saeed Khan, A.A.-G. for the State.

Date of hearing: 18th October, 2004.

2005 P Cr. L J 1474

[Peshawar]

Before Tariq Parvez Khan and Dost Muhammad Khan, JJ

BAKHT ROIDAR---Appellant

Versus

ESAM KHAN and another---Respondents

Criminal Appeal No.403 of 2004, decided on 26th October, 2004.

Penal Code (XLV of 1860)---

----Ss. 397, 109 & 34---Appreciation of evidence---Trial Court, while convicting and sentencing accused, had mainly relied on confession of two accused---Both accused though had admitted their association with absconding co-accused, but to the extent of having conspired to commit offence of `Haraba', but when it came to the question of real participation in the crime, both accused/confessors stayed back in their respective houses and did not accompany the culprits who had committed the main crime---Complainant even in his Court statement had deviated from his stance as taken in F.I.R. and had stated that he and his deceased brother were attacked by three persons who had muffled their faces--No test identification parade was held in respect of two accused during entire investigation---One of prosecution witnesses was resident of village other than village where occurrence had taken place---Confession of accused could be used against co-accused provided it was proved against the maker and if proved against the maker same could be taken as circumstantial evidence against co-accused---Neither of the accused had been asked in statements under S.342, Cr.P.C. about the confession of the co-accused---No question was put to either of accused---No such circumstantial evidence was available through which accused could be connected with the commission of the crime irrespective of the fact that the confessions were totally exculpatory---When the confessions were found to be exculpatory, not put to each of accused and were recorded after considerable delay and when they were not corroborated by any independent evidence, those could not have been made basis for conviction and sentence---Conviction and sentence awarded to accused by Trial Court were set aside and they were acquitted of the charge and were set free.

Javed A. Khan for Appellant.

Nek Nawaz Khan for the Complainant.

Naveed Akhtar, D.A.-G. for the State.

Date of hearing: 26th October, 2004.

2005 P Cr. L J 1500

[Peshawar]

Before Muhammad Raza Khan, J

FARMAN ULLAH and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No.97 of 2005, decided on 3rd May, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Juvenile Justice System Ordinance (XXII of 2000), S.2(b)---Bail, grant of-Night occurrence---Absence of source of light in site plan to make possible recognition of accused---Minority of accused on day of occurrence---Effect---Parties were residents of same village, thus, recognition of villagers (accused) was not a difficult task---Recovery of empties of respective weapons allegedly used, by each accused had prima facie supported occurrence---Accused were arrested after more than 3-1/2 years of abscodnence---Minority would not furnish licence to kill---Some concession could be extended to juveniles during trial but not at bail stage---Accused had attained majority during period of abscondence---Prosecution had prima facie an arguable case---Bail was refused to accused in circumstances.

Sanaullah Khan Gandapur for Petitioner.

Muhammad Sharif Chaudhry, D.A.-G. for the State.

Muhammad Yaqoob Khan Marwat for the Complainant.

Date of hearing: 4th May, 2005.

2005 P Cr. L J 1506

[Peshawar]

Before Tariq Parvez Khan and Muhammad Qaim Jan Khan, JJ

JANGREZ KHAN---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No.722 of 2004, decided on 30th March, 2005.

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

----S. 9---Appreciation of evidence---Charas recovered from accused was in shape of 7 slabs, but only one sample of 10 grams was separated from the whole lot---In view of one sample separated from narcotics recovered and not taking samples from each slab, prosecution could prove that 10 grams sample sent for chemical analysis was Charas which could be relatable to only one slab of one kilogram---Conviction of accused was maintained, but sentence was reduced to already undergone by accused as he had already spent about 3 years in jail and fine amount was also reduced.

Aftab Khubai for Appellant.

Muhammad Khalid Khan for the State.

Date of hearing: 30th March, 2005.

2005 P Cr. L J 1562

[Peshawar]

Before Ijaz-ul-Hassan Khan and Ejaz Afzal Khan, JJ

Mst. PARVEEN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.317 of 2005, decided on 30th June, 2005.

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

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S. 103---Appreciation of evidence---Accused was alleged to have in her possession 7 packets of Charas weighing 7 kilograms--Meagre quantity was separated out of the lot and was sent to Forensic Science Laboratory for examination, report of which was positive---Three prosecution witnesses produced were consistent on material particulars and no contradiction whatsoever could be pointed out to damage prosecution case---Said witnesses were subjected to fairly lengthy cross-examination, but their testimony could not be shattered to create doubt in prosecution case---Recovery though had been witnessed by police officials, but nothing was on record to show that they had any ill-will or motive against accused to falsely involve her in the case---Mere non-compliance of provision of S.103, Cr.P.C., would not vitiate proceedings---Defence in order to succeed must show that there was either miscarriage of justice or accused was prejudiced in his trial or defence---Section 25 of Control of Narcotic Substances Act, 1997 had provided exception when it would come to deal with provisions of S.103, Cr.P.C.---In narcotic cases recovery would not become illegal where witnesses from locality were not associated at the time of recovery---Prosecution had succeeded to prove its case against accused beyond any reasonable doubt and appeal filed by accused merited outright dismissal---In view of fact that accused was a widow and was lodged in jail ever since her arrest, sentence of four years' R.I. awarded to her by Trial Court was reduced to three years' R.1.---Sentence of fine, would remain intact and she would also be entitled to benefit of S.382-B, Cr.P.C.

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

----S. 103---Object of enactment of S. 103, Cr.P.C.---Object of enactment of S.103, Cr.P.C. was to ensure fair dealing' on the part of the officer making search---Section 103, Cr.P.C. was enacted for greater certainty and security and not because the statement of certain officers could under no circumstances be accepted---Purpose of S.103, Cr.P.C. was to ensure that testimony given in Court in regard to the result of a search should not depend upon the police officer alone, but also upon the evidence of independent person and all possibility of false implication in the case of search be minimized by the availability of independent person---Mere ton-compliance of provision of S.103, Cr.P.C. would not vitiate proceedings.

Mst. Khurshida alias Rasheeda Begum v. The State 2005 PCr.LJ 120 ref.

Muhammad Fakharc Alam Jhagra for Appellant.

Abdul Raul Gandapur for the State.

Date of hearing; 30th June, 2005.

2005 P Cr. L J 1576

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

AKHTAR ZAMAN---Petitioner

Versus

THE STATE and another---Respondents

Cr.M.B.A. No.537 of 2005, decided on 11th July. 2005.

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

----S. 497---Bail, grant of to accused involved in non-bailable offence---Principles---To consider the bail matter of an accused involved in a non-bailable offence, if reasonable grounds appeared for believing that he. was guilty of an offence punishable with death or imprisonment for life, he would not be released on bail unless case was covered by any of the provisions in subsection (1) of S.497, Cr.P.C.---If it appeared to the Court at any stage of investigation, inquiry or trial, that no reasonable grounds were available, but sufficient grounds existed for further inquiry into his guilt, he would be released on bail under subsection (2) of S.497, Cr.P.C.---Exercise carried out by the Court in matters concerning bail, was a preliminary one and was restricted to a tentative sifting of evidence on record opposed to an elaborate sifting of the same---Court 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 was not called for---Mind of the Court was to be satisfied that case under its consideration was fit case or not for grant of bail.

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

----S. 497---Penal Code (XLV of 1860), Ss.302 & 34---Bail, refusal of---Alleged incident happened in broad daylight---Matter was reported to police promptly by victim himself---Accused, who went into hiding, was arrested after about 5 years and such a long abscondence of accused had created a barrier in his way and disentitled him for relief of bail---Co ­accused, who were acquitted in case, had been assigned a different role, qua role attributed to accused---Bail was refused to accused, in circumstances.

The State v. Malik Mukhitar Ahmad Awan 1991 SCMR 322; Zulfiqar and others v. State and 10 others 1991 SCMR 326: Muhammad Jehangir v. Kala Khan and another 2004 PCr.LJ 1843 SC (AJ&K); Payoo Khan and another v. State and another 2004 PCr.LJ 869.; Sher Ali alias Shery v. State 1998 SCMR 190; Sajjad Ahmad v. State PLD 1992 Pesh. 74 and Zarif Khan v. State 2005 PCr.LJ 330 ref.

Peer Bakhsh Mehtab for Petitioner. S.M. Shakeel for the State

Muhammad Amin Lachi for the Complainant.

Date of hearing: 11th July, 2005.

2005 P Cr. L J 1590

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

SHER AFZAL---Petitioner

Versus

WAZIR BADSHAH and 2 others---Respondents

Criminal Revision No.93 of 2002, decided on 27th June, 2005.

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

----S. 439---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Revision against acquittal---Appreciation of evidence---Court below had thoroughly examined evidence available on record and concluded that prosecution had failed to establish accusation against accused---Whenever an accused was acquitted of a criminal charge, he would enjoy double presumption of innocence; once before the trial of case and second after his acquittal---Incident had taken place on Eid day in broad daylight, in the village and independent witnesses could have been available; but none had been examined by prosecution, which had suggested that it was an un-witnessed crime---Name of prosecution witness, who claimed to have seen incident, was missing in F.I.R. and he seemed to have been procured subsequently in order to lend support to prosecution version---Complainant had also not been able to account for his presence at the spot at relevant time---Ocular account furnished by witnesses had been disbelieved by Trial Court for valid reasons which were not open to legitimate exception---Chance witness, closely related to deceased, had assumed special significance---No reliance could be placed on his testimony in absence of unimpeachable corroboration---Prosecution need not to set up a motive and if it did and failed to establish it then it must suffer---Medical evidence did not establish identity of culprits---Abscondence, per se, was not a proof of the guilt of an accused, it, however, could create suspicion against him, but suspicion could not take place of proof---Abscondence alone could not be a substitute for real evidence and in absence of any other corroborative evidence, that evidence, even if found convincing, would not be sufficient by itself to warrant conviction of accused on a charge of murder---Eye-witnesses, who were chance witnesses had rightly been disbelieved---Occurrence having taken place in the heart of village, some evidence should have been available independently of such interested and uninspiring witnesses---Impugned judgment being unexceptionable, criminal revision was devoid of substance and was liable to be dismissed.

Mst. Zeenat Sultan v. Mumtaz Khan and 9 others PLD 1994 SC 667; Khadim Hussain v. Manzoor Hussain Shah and 3 others 2002 SCMR 261; Barkat Ali v. Shaukat Ali and others 2004 SCMR 249; Zafar Hayat v. The State 1995 SCMR 896; Noor Muhammad and 3 others v. The State 1973 PCr.LJ 891; Mangio v. The State 1976 PCr.LJ 243; 1986 SCMR 823 and PLD 1990 SC 201 ref.

(b) Criminal trial---

----Evidence---Interested witness---Evidence furnished by an interested witness related to victim or deceased, could not be discarded merely for the reason that witness had relationship with victim; in such-like situation efforts must be made to seek corroboration from other evidence available on record.

Fazal Elahi Khan for Petitioner.

Mehmood Shah for Respondents.

Wasim Tariq for the State.

Date of hearing: 27th June, 2005.

2005 P Cr. L J 1620

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

FAHAD---Appellant

Versus

THE STATE through Advocate-General, N.-W.F.P. and another---Respondents

Criminal Appeal No.826 of 2004, decided on 9th June, 2005.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Court, while passing an order of conviction of accused for murder, had not only to be satisfied that murder had been committed, but it must also be satisfied that accused had committed the murder---Before recording an order of conviction all the facts and circumstances of the case must be taken carefully into consideration and golden principles of criminal justice must be borne in mind that in case of murder, the onus of proof always lies upon shoulders of prosecution and case must be proved against accused beyond any reasonable doubt---Prosecution in the present case had fully failed to establish the case against accused beyond any shadow of doubt---Case against accused was totally of no evidence and Trial Court had failed to apply its judicial mind to the facts of case---Manner in which Trial Court had proceeded in the case, was violative of principles governing safe administration of criminal justice---Trial Court had overlooked material favouring accused and . discarded the same in a manner uncalled for and unwarranted in law---Conclusion of Trial Court, in circumstances was not maintainable---Prosecution had miserably failed to prove its case against accused---Trial Court had failed to assess evidence in a legal and proper manner---Conclusion drawn by Trial Court, in circumstances was contrary to evidence on record and against settled norms laid down by Superior Courts---High Court allowing appeal, set aside impugned judgment and acquitted accused of the charge.

Qazi Muhammad Anwar for Appellant.

Muhammad Anwar for the Complainant.

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

Date of hearing: 30th May, 2005.

2005 P Cr. L J 1644

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

ABDUL GHAFFAR---Appellant

Versus

THE STATE and another-Respondents

Criminal Appeal No.91 and Criminal Revision No.32 of 2005, decided on 20th June, 2005.

Penal Code (XLV of 1860)-

----Ss. 324, 337-F(ii) & 337-Y(2)---Appreciation of evidence---Complainant and prosecution witness had fully supported prosecution version and charged accused for causing the complainant fire-arm injury---Both witnesses had consistently adhered to prosecution version, word by word---Manner and mode of occurrence had been consistently described by them; they were cross-examined at a considerable length by the defence, but it_ failed to derive any advantage out of the whole exercise---Minor discrepancies in prosecution evidence were inconsequential and not fatal to the case---Medical evidence was in complete harmony with prosecution version---Submission that wound on person of injured was self-inflicted, was devoid of force---Matter was reported to police promptly without loss of time and there was no possibility of consultation and deliberation and it had fully been proved that accused had fired at complainant causing him injury---Trial Court had given very sound and, cogent reasons for acceptance of presence of complainant and prosecution witness at time of occurrence and for believing their testimony and such finding was based on correct and proper analysis/appraisal of evidence on record---Statements of defence witnesses had been discarded for valid and cogent reasons---Plea of alibi taken by accused, seemed to be an afterthought and said plea was not taken by accused when he applied for bail before arrest---Acquittal of co-accused did not detract the credibility of ocular version provided by complainant and prosecution witnesses---Co-accused was acquitted on the ground that only role of proverbial `Lalkara' was attributed to him and main role of firing was assigned to accused---Motive had been satisfactorily established---Testimony of complainant and prosecution witnesses had rightly been relied upon and made basis of conviction of accused and accused had failed to point out any illegality by way of misreading or non-reading of evidence by Trial Court warranting interference by High Court in its appellate jurisdiction---Accused had rightly been convicted and sentenced by Trial Court and contention that impugned order qua the sentences of accused was bad in the eye of law and was not sustainable, did not carry weight.

Abdul Ghafoor v. The State 2000 SCMR 919; Irshad Ahmad and others v. The State and others PLD 1996 SC 138 and Rahim Shah v. the State and another 2004 PCr.LJ 1129 ref.

Shamoon Ahmad Bajwa for Appellant.

Shah Nawaz Khan for the State.

Malik Haroon Iqbal for the Complainant.

Date of hearing: 10th June, 2005.

2005 P Cr. L J 1667

[Peshawar]

Before Ijaz-ul-Hassan Khan and Ejaz Afzal Khan, JJ

QUDRATULLAH---Appellant

Versus

MAISAM and another---Respondents

Criminal Appeal No.253 and Criminal Revision No.73 of 2004, decided on 8th June, 2005.

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

----S. 302(b)---Appreciation of evidence---Case of solitary witness as two prosecution witnesses who claimed to have accompanied the complainant at the relevant time and seen the occurrence had been abandoned by prosecution---Testimony of a sole. witness, by itself, was not a demerit or disqualification, but conviction could be based on statement of solitary witness provided same was confidence-inspiring and intrinsic worth of same rang true and satisfied conscience of the Court regarding its truthfulness-Testimony of complainant as sole witness hardly inspired confidence and qualified to be a truthful witness; it would be totally unsafe to rely on testimony of said sole witness who was closely related to deceased being his father whose conduct throughout the alleged occurrence had been quite suspicious, unnatural and improbable and he had failed to justify his presence at the spot at the time of occurrence---Prosecution, in cases based on evidence of solitary witness, was required to produce independent corroborative evidence direct or circumstantial before reliance could be placed on the deposition of such witness, but in the present case no independent corroboration of unimpeachable character was available---Ordinarily delay of two hours, as was in the present case, in lodging report, could not have much significance, but circumstances of the case had manifestly suggested that time was consumed in fabricating the story---Motive in case remained a mystery and never came to surface---Accused had no motive against complainant so as to harm him---Accused and absconding co-accused were alleged to have fired indiscriminately at the complainant party, but no crime empty had. been recovered from the spot to lend strength to prosecution version---Abscondence of accused alone could not be a substitute for real evidence and mere abscondence of accused could not be considered sufficient to sustain conviction---Since very presence of eye-witness at the scene of occurrence was doubtful, evidence of recovery of blood-stained maize crops, motive, medical evidence or abscondence, even if proved, could not in any way advance case of prosecution---Credibility of eye-witness having been shaken to the maximum possible limit, benefit of same would definitely go in favour of accused---Prosecution having not been able to prove case against accused beyond. reasonable doubt, conviction and sentence awarded to accused by Trial Court, were set aside and he was acquitted of charge against him.

Quresh v. The State PLD 2004 Pesh. 294; Humayuun v. The State 2005 PCr.LJ 337; Redi Gul v. The State 2001 PCr.LJ 1184; Mir Mat Khan alias Matokai v. The State 2002 PCr.LJ 1914; Saeedullah v. Shah Nazar and another 2001 PCr.LJ 1740 and Fida Hussain and another v. The State 2004 PCr.LJ 2052 ref.

(b) Criminal trial---

----Motive---Once motive is set up, prosecution is bound to prove the same.

(c) Criminal trial---

---Abscondence -- Abscondence of accused alone could not be a substitute for real evidence and mere abscondence of accused could not be considered sufficient to sustain conviction.

Syed Muazzam Jamil for Appellant.

M. Wasim Tariq for the State.

Abdur Rauf Gandapur for the Complainant.

Date of hearing: 8th June, 2005.

2005 P Cr. L J 1858

[Peshawar]

Before Ijaz-ul-Hassan Khan and Ejaz Afzal Khan, JJ

AFSAR KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.461 of 2005, heard on 9th August, 2005.

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

----S. 9(c)---Appreciation of evidence---Both the important witnesses who were police officials, had made consistent statement on material points and accused had failed to point out any discrepancy in their statements---Both said witnesses had supported recovery of two Kilograms of Charas from possession of accused at given date, time and place---Incriminating statements of said prosecution witnesses on oath were enough to connect accused with commission of crime---Defence could not prove as to why police would involve accused falsely, especially when none from raiding party had any enmity against him---Contradictions pointed out by accused in statements of prosecution witnesses, which were recorded about one and half years after the event, were so' minor that on basis of those, it could not be held that trial of case stood vitiated---Such minor discrepancies, if any, were bound to happen by lapse of time---Well-reasoned judgment of Trial Court which was in consonance with evidence on record, could not be set aside on such minor discrepancies---In such-like cases no presumption could be drawn that police witnesses were lier---Plea that independent private persons were not made witnesses to recovery as it was effected from a public place, and entire case of prosecution had collapsed, was without .substance---Accused could not point out any serious defect in investigation other than certain minor lapses which did not affect validity of trial---Accused could not bring anything on record to prove that he had been implicated falsely in the case by police in order to show efficiency or police---Objection regarding late dispatch of sample to laboratory for chemical examination, was of no consequence and did not cause any dent in prosecution case and did not make prosecution story doubtful---In absence of any illegality or infirmity in impugned judgment warranting interference of High Court, appeal was dismissed.

Asghar Ali v. The State 1996 SCMR 1541; Sher Khan v. The State 2003 MLD 259; Mushtaq v. The State 2002 PCr.LJ 1312; Johar Ali and another v. The State 2003 PCr.LJ 680 and Mst. Ajab Sultana and another v. The State 2003 PCr.LJ 82 ref.

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

----S. 9(c)---Appreciation of evidence---Police witnesses---Police witnesses were competent witnesses in the eyes of law and unless it could be demonstrated that police officials bad any motive or reason to falsely implicate accused, their statements could not be discarded only because they happened to be employees of police department---Evidence of a police personnel could not be ignored as a police man was as good a witness as any other person, until and unless evidence was brought on record to discredit his evidence.

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

---Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S. 103---Recovery proceedings---Section 25 of Control of Narcotic Substances Act, 1997, had excluded application of S.103, Cr.P.C.

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

----S. 9(c)---Appreciation of evidence---Chemical examination of recovered material---Since it was not stated anywhere either in Control of Narcotic Substances Act, 1997 or in Rules made thereunder as to how much quantity from seized narcotics should be sent for the purpose of chemical analysis, taking of small quantity for chemical examination, was enough to prove that entire recovered material was contraband---Contention that entire recovered narcotics should have been sent be Chemical Examiner and lapse of prosecution construed to hold that accused was only liable to the extent of four grams which was sent to Chemical Examiner, was repelled.

Ali Muhammad and another v. The State 2003 SCMR 54 and Mst. Anwar Bibi v. The State 2004 PCr.LJ 692 ref.

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

-----S. 9(c)---Reduction in sentence---Accused was a previous non-convict and he was a young man and entire future lay before him---Conviction of accused was maintained, but his sentence was reduced from three years' R.I. to one year's R.I. and fine was also reduced accordingly--Accused would also be entitled to benefit of 5.382-B, Cr.P.C.

Gohar Ali for Appellant.

Pir Liaqat Ali Shah, D.A.-G. for the State.

Date of hearing: 9th August, 2005.

2005 P Cr. L J 1881

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

SAJJAD KHAN---Petitioner

Versus

ADNAN FAISAL and others---Respondents

Criminal Bail Application No.622 of 2005, decided on 22nd August, 2005.

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

----S. 497---Bail, grant of---Principles---Court 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 was not called for---Mind of the Court which was to be satisfied that the case under its consideration was fit case or not 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 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Bail, refusal of---Two unknown assailants though were alleged to have emerged at the spot and fired at complainant party resulting into murder of deceased, but complainant in his supplementary statement recorded subsequently had specifically charged accused and co-accused for crime in question---Accused, in circumstances had failed to make out a prima facie case for grant of bail---Bail application was dismissed.

Imtiaz Ahmad and another v. The State PLD 1997 SC 545 ref.

Taj Muhammad Khan for Appellants.

M..Saeed Khan, D.A.-G. for the State.

Abdul Jabbar Khan for the Complainant.

Date of hearing: 22nd August, 2005.

2005 P Cr. L J 1939

[Peshawar]

Before Ijaz-ul-Hassan Khan and Muhammad Raza Khan, JJ

MUHAMMAD NAWAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.137 of 2004 and Criminal Revision No.3 of 2005, decided on 5th September, 2005.

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

----Ss. 302(b) & 324---Appreciation of evidence---F.I.R. had been lodged with reasonable promptitude, eliminating all possibilities of fabrication and false involvement of accused---Accused had been specifically nominated in F.I.R. as principal perpetrator who had caused death of two brothers by firing---Presence of eye-witnesses at the spot could not be seriously disputed---Witnesses did not have any serious motivation to falsely implicate accused in a case of that nature---Both witnesses had made consistent statements before Trial Court and their credibility could not be shaken during their cross-examination---Straightforward statements made by said witnesses in Trial Court had made them reliable enough to place implicit reliance upon them---Eye­witnesses had sufficiently accounted for their presence at the spot---Nothing was available to doubt the conduct of witnesses---Ocular account narrated by said witnesses stood corroborated by medical evidence which proved the fact that deceased died by fire-arm injuries---Mere fact that eye-witnesses had succeeded in escaping unhurt or there were minor discrepancies in their statements, could not be taken to be a sufficient ground for discarding their evidence---Eye-witnesses were accompanying deceased at the time of incident and their claim of having seen the tragedy, stood proved from the material on record---Contention of accused that his acquittal under S.324, P.P.C. for attempting at life of complainant, amounted to disbelieving prosecution evidence and same evidence could not be accepted for sustaining his conviction under S.302(b), P.P.C., was repelled because evidence regarding attempted murder was found insufficient and benefit extended to accused was not questionable---Medical evidence was in complete harmony with ocular testimony and no conflict could be pointed out to create dent in prosecution case---Strong motive was alleged against accused and he was said to have taken the lives of two innocent brothers for a petty matter I.e. dispute over construction of embankment---Said motive had been established satisfactorily---Accused remained fugitive from justice for more than nine years---Said prolonged and noticeable abscondence of accused would go a long way to corroborate and strengthen the truth of prosecution version and indicate guilt of accused---Prosecution, in circumstances had successfully established murder charge against accused and accused rightly stood convicted and sentenced by Trial Court.

Javed Malik v. The State 2005 SCMR 49; Asim v. The State 2005 SCMR 417; Ali Khan v. The State PLD 1980 SC 109 and Iqbal alias Bhala v. State 1994 SCMR 1 ref.

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

----S. 302(b)---Appreciation of evidence---Testimony of relatives---If testimony of relatives was corroborated through circumstantial evidence or other pieces of evidence, their relationship with deceased would not be sufficient to discredit such witnesses particularly when there was no motive to falsely involve accused---Mere fact that a witness was relative of deceased, was not per se enough to discredit witness unless it was established that witness was inimical towards accused and if it was found that in circumstances of the case, presence at the spot of such a witness could not be denied, then his evidence could not be discarded.

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

----S. 302(b)---Appreciation of evidence---Motive---Mere absence or weakness of motive would not come in the way of prosecution if case was otherwise proved by reliable evidence---Motive was not considered a sine qua non for proving offence of murder and mere absence of motive was no ground to doubt the truth of prosecution case.

Muhammad Ramzan v. The State 1992 PLD 302 and Government of Sindh v. Sobharo 1993 SCMR 585 ref.

(d) Penal Code (XLV of 180)-------

-----S. 302(b)-Appreciation of evidence---Abscondence of accused---No doubt, it was true that abscondence of accused at the most could be taken as corroborative of charge and not the evidence of charge and in absence of any other corroborative evidence that evidence, even if found convincing, would not be sufficient, by itself, to warrant conviction of accused person on charge of murder, but prolonged and noticeable abscondence of accused for more than nine years, would go a long way to corroborate and strengthen the truth of prosecution version and indicate guilt of accused.

Aminullah v. The State PLD 1976 SC 632 ref.

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

----S. 302---Criminal Procedure Code (V of 1898), S.439---Maximum punishment---Awarding of---When offence was proved, it had to be met with maximum sentence provided therefor---No yardstick however existed to restrict or curb discretion of Trial Court while passing sentence---Circumstances of each case would justify severity or leniency in passing legal sentence---Trial Court in the present case declined to award death to accused---High Court had seen no justification to disagree with Trial Court---Revision against awarding of sentence was dismissed.

Syed Zafar Abbas Zaidi for Appellant.

Muhammad Sharif Chaudhry, D.A.-G. for the State.

Sanaullah Khan Gandapur, Farooq Akhtar for the Complainant.

Date of hearing: 5th September, 2005.

2005 P Cr. L J 1949

[Peshawar]

Before Ijaz-ul-Hassan Khan and Fazlur Rehman Khan, JJ

SARTAJ ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.311 of 2005, decided on 17th August, 2005.

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

----Ss. 9 & 25---Appreciation of evidence---Sentence, reduction in---Both prosecution witnesses had unanimously deposed that Charas in alleged quantity had been recovered from accused on pointed date and time---Complete unanimity was found in depositions of said two witnesses as regards all major details of the case---No major material discrepancy creating dent in prosecution story, was found---Contradictions pointed out by accused, were so minor that on basis of those, it could not be held that trial of case stood vitiated and recovery of huge quantity of Charas, could not be doubted on basis thereof---Such minor discrepancy, if any, was bound to happen by lapse of time---Well-reasoned judgment of Trial Court which otherwise was supported with evidence on file, could not be set aside on minor contradictions---Application of S.103, Cr.P.C. had been excluded by S.25 of Control of Narcotic Substances Act, 1997, which had overriding effect---Government employees/police witnesses were reliable like private witnesses unless they were proved to have some enmity against accused---Taking of small quantity in the case out of entire bulk consisting of one block for chemical examination, was enough to prove that entire recovered material was contraband---Recovery evidence supported by Chemical Examiner Report was beyond doubt and confidence-inspiring---Report of Analyst was found in positive which had supported prosecution story as well as recovery of narcotics in case---Plea of accused with regard to his false implication, which was unfounded, appeared to be an afterthought and said belated stand of accused was not worth reliance---Mere assertion of accused that he was implicated in the case falsely on account of his refusal to abide by wishes of police officials, without a positive attempt on his part to substantiate same, was of no consequence---No illegality or infirmity was found in impugned judgment warranting interference of High Court---Accused was a previous non-convict, he was Youngman and entire future was in front of him---Conviction of accused was maintained, but his sentence was reduced from 6 years' R.I. to 4 years' R.I. accordingly.

Muhammad v. State 1999 SCMR 1367 ref.

Astaghfirullah for Appellant.

Pir Liaqat Ali Shah, D.A.-G. for the State.

Date of hearing: 17th August, 2005.

2005 P Cr. L J 1958

[Peshawar]

Before Ijaz-ul-Hassan Khan and Ejaz Afzal Khan, JJ

AKHTAR HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.215 of 2005, decided on 11th August, 2005.

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

----Ss. 9(c) & 25---Appreciation of evidence---Report of Chemical Examiner was positive---Prosecution witnesses had unanimously deposed that heroin in alleged quantity had been recovered from car in question at given time---Complete harmony was in deposition of prosecution witnesses as regards major details of happening---No major or material discrepancy had been found in statements of prosecution witnesses---Said witnesses were subjected to lengthy and searching cross-examination, but nothing could be extracted by defence to shatter their veracity---Accused had produced no evidence in defence to show that he had no concern with seized property and that same was planted on him---Evidence regarding safe custody and dispatch of parcel of heroin recovered from accused, had established credibility of report of Chemical Examiner---Parcel of sample of heroin dispatched to Expert, was intact---Objection regarding late dispatch of parcel of sample was without substance as it had not prejudiced the interest of accused---Recovery stood 'proved through independent and reliable witnesses and had fully established prosecution case---No legal prohibition existed for a police officer nor he was prohibited under law to be a complainant, if he was a witness to the commission of offence and also to be an Investigating Officer---Contention of accused regarding non-compliance of Provisions of S.103, Cr.P.C. was repelled because association of two or more respectable persons of locality was not required as Provisions of S.25 of Control of Narcotic Substances Act, 1997 had excluded application of S.103, Cr.P.C., where recovery was made on a highway or road side or from a running vehicle-.--Police witnesses were competent witnesses in the eye of law and unless it could be demonstrated that police officials had any motive or reasons to falsely implicate accused, their testimony could not be discarded for the reason that they happened to be employees of police department---Accused had not been able to point out any serious defect in investigation, other than certain minor lapses which did not affect validity of trial---Case against accused having stood fully proved in the most convincing and logical order, appeal against impugned order of Trial Court, was dismissed.

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

----S. 9(c)---Appreciation of evidence---Onus to prove---When an accused at criminal trial would take a specific plea, the onus invariably would shift and accused would be required to produce evidence and prove his plea or at least his plea should be supported by attending circumstances and it should not be found baseless altogether.

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

----S. 9(c)---Sentence, reduction in---Sentence awarded-to accused was on higher side as it did not commensurate with quantity of heroin recovered---Conviction of accused was maintained, but his sentence was reduced from 5 years' R.I. to 3 years' R.I. and also reduced fine from Rs.50,000 to Rs.20,000, accordingly---With said modification, appeal was dismissed.

Miss Farhana Marwat for Appellant.

Tariq Khan Kakar for the State.

Date of hearing: 11th August, 2005.

2005 P Cr. L J 1966

[Peshawar]

Before Ijaz-ul-Hassan Khan and Jehanzeb Rahim, JJ

Mst. NAWSHADA and another---Appellants

Versus

THE STATE---Respondent

Jail Criminal Appeal No.296 of 2005, decided on 24th August, 2005.

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

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), Ss.103 & 340(2)---Appreciation of evidence---Sentence, reduction in---Prosecution witnesses had fully supported prosecution story---Said witnesses had remained absolutely consistent, coherent and had resolutely withstood lengthy cross-examination---Defence had not been able to shatter their testimony or pinpoint any ill-will which could have been harboured by said witnesses against accused---Mere fact that said witnesses belonged to police department, by itself, could not be considered a good ground to discard their statements---Police officials were as good witnesses as any other witness---Reports of Analyst were positive which had supported prosecution story as well as recovery of narcotics in the case---Objection regarding non-compliance of provision of S.103, Cr.P.C. was misconceived because S.25 of Control of Narcotic Substances Act, 1997 had specifically ousted applicability of S.103, Cr.P.C.---Prosecution had successfully brought home guilt to accused beyond doubt---Defence had miserably failed to extract any material discrepancies or contradictions in statements of prosecution witnesses---Accused did not appear as their own witness as required under S.340(2), Cr.P.C. to contradict prosecution story 'which was also fatal to them---Accused were first offenders---One of accused was an old lady of more than 60 years of age suffering from diabetes and other one was poor lady---Both the ladies appeared to be carriers---Scope existed, in circumstances, for taking lenient view in the matter of their sentences---Sentence awarded to one accused was reduced from five years' R.I. to four years R.I. and to other from three years' R.I to two years' R.I. accordingly---With said modification in sentences, appeal stood dismissed and impugned judgment was maintained and upheld.

Feroz Shah v. The State 2002 PCr.LJ 1470; Muhammad Amin v. The State 1999 SCMR 1367 and Abdur Rehman Mubarik v. The State 2000 PCr.LJ 907 ref.

Miss Farhana Marwat for Appellants.

Muhammad Khalid Khan for the State.

Date of hearing: 24th August, 2005.

2005 P Cr. L J 1972

[Peshawar]

Before Ijaz-ul-Hassan Khan and Jehanzaib Rahim, JJ

Mst. BAKHTA---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No.361 of 2005, decided on 25th August, 2005.

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

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S.103--Appreciation of evidence---Positive report of Chemical Examiner and' both prosecution witnesses had supported recovery of five Kilo grams Charas from possession of accused---Evidence of said witnesses had established that Charas in question was recovered from possession of accused at given date, time and place---Both witnesses had demonstrated complete unanimity on material points and accused had failed to point out any discrepancy in their statements---Contradictions highlighted by accused, were so minor that on basis of those it could not be held that trial of case stood vitiated---Prosecution witnesses, though were officials of Anti-Narcotic Force, had no reason or motivation for false implication of accused especially when accused had not urged any rancour or animosity against said witnesses---Testimony of police official, could not be discarded simply for the reason that he belonged to Police Department---Policeman was as good-a witness as any other, until and unless evidence was brought on record to discredit his testimony--Section 25 of Control of Narcotic Substances Act, 1997, had excluded application of S.103, Cr.P.C.---Section 25 of Control of Narcotic Substances Act, 1997 was enacted with the object that provision of S.103, Cr.P.C. need not be followed for offences under Control of Narcotic Substances Act, 1997---Even otherwise when recovery was made from a public vehicle, which was occupied by passengers, it was difficult to persuade any witness to volunteer to become witness to recovery---Accused had not been able to point out any serious defect in investigation, except certain minor lapses which had not affected validity of trial---Report of Analyst received back was found in positive which had supported prosecution story as well as recovery of narcotics in the case---No illegality or infirmity was found in impugned judgment warranting interference of High Court---Trial Court having already taken lenient view and awarded lesser sentence to accused, request of accused for reduction in sentence, could not be granted.

Dhadar Khan v. The State 2000 PCr.LJ 478 and State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408 ref.

Miss Saadia Siddiqui for Appellant.

Tariq Khan Kakar for the State.

Date of hearing: 25th August, 2005.

2005 P Cr. L J 1987

[Peshawar]

Before Tariq Parvez Khan, CJ

AZIZ-UR-REHMAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Bail Petition No.767 of 2005, decided on 15th August, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Electricity Act (IX of 1910), Ss.39-A & 40---Bail, grant of---Theft of electric wire---Recovery of wire by police on pointing of accused from shop of a person, who was neither made accused nor witness in the case---Two employees of Department caught accused red­ handedly while carrying wire---Other co-accused had been released on bail---Accused was granted bail in circumstances.

M. Yaqoob Marwat for Petitioner.

Muhammad Adil for the State.

Date of hearing: 15th August, 2005.

2005 P Cr. L J 1991

[Peshawar]

Before Ijaz-ul-Hassan Khan and Muhammad Raza Khan, JJ

MUHAMMAD JAMIL---Appellant

Versus

THE STATE and others---Respondents

Criminal Jail Appeal No.107 of 2004, decided on 5th September, 2005.

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

-----S. 302(b)-Appreciation of evidence---Extra-judicial confession of accused which was voluntary, truthful, free from any duress and coercion, even though retracted, was relevant---Retraction, per se, was not always a valid ground to discard judicial confession, unless and until it was proved that it was obtained through coercion, threat, pressure or inducement---Details of event given by accused in confessional statement were a strong circumstance to establish that. confession was true and voluntary---One of the prosecution witnesses had expired during trial, whereas remaining witnesses had been withheld for valid reasons---Not mandatory for prosecution to produce all witnesses cited by it in the calendar of witnesses---Accused could have examined them in defence, but he having failed to avail, that option/right, he could not be permitted to raise same plea---Case was of promptly lodged F.I.R.---All necessary details had been given therein---Prosecution witnesses were subjected to lengthy and grueling cross-examination, but defence had failed to shatter credibility of those witnesses nor defence had succeeded to bring on record an iota of evidence to show that those witnesses had any malice to falsely implicate accused in the case---Nothing of much substance had been elucidated from cross-examination of prosecution witnesses which could detract from efficacy of their statement---Ocular account narrated by said witnesses stood corroborated by medical evidence which had proved the fact that deceased sustained two wounds and died as a result of fire-arm injuries---No reason existed as to why said witnesses, who had no axe of their own to grind, would implicate accused falsely in the case---Discrepancies pointed out by accused were not of such nature as to create doubt in credibility of witnesses---Strong motive alleged against accused in F.I.R., had been established satisfactorily---Prosecution, in circumstances had successfully established murder charge against accused through statement of complainant, extra-judicial confession of accused, medical evidence, recoveries, motive and positive reports of Fire-arm Expert and Serologist, respectively---In absence of any substantial ground for lawfully challenging impugned judgment, appeal was dismissed.

Gul Tiaz Khan v. The State PLD 2004 Pesh. 299; Gul Nawaz v. The State 1998 PCr.LJ 1730; Muhammad Ibrahim v. The State 1998 PCr.LJ 1993; State v. Minhum alias Gul Hassan. PLD 1964 SC 813; Bahadur Khan v. The State PLD 1995 SC 336; Naqibullah and another v. The State PLD 1978 SC 21 and Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758 ref.

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

----S. 164---Confession---Corroboration of confession---If confession was not confidence-inspiring, use of same to convict a person without independent corroboration, was not proper and legal and the Courts generally refrained from basing conclusion solely on retracted confession and while following rule of abundant caution look to corroborate in material particulars to ensure safe administration of justice---Court, if was satisfied that confession, though retracted, was true and voluntary, same could safely be made basis of conviction.

(c) Criminal trial-

---Law governing administration of criminal justice, had not cast a duty upon prosecution to produce all witnesses who had seen incident, because it was the quality of evidence, but not quantity which mattered.

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

----S. 302(b)---Appreciation of evidence---Motive---Mere absence or weakness of motive would not come in the way of prosecution if case otherwise was proved by reliable evidence---Motive was not considered a sine qua non for proving offence of murder and mere absence of motive was no ground to doubt the truth of prosecution case.

Muhammad Ramzan v. The State 1992 PLD 302 and State/Government of Sindh through Advocate-General Sindh, Karachi v. Sobharo 1993 SCMR 585 ref.

Farooq Akhtar for Appellant.

Muhammad Sharif Chaudhry for the State.

Khawaja Muhammad Khan for L.Rs. of deceased.

Date of hearing: 5th September, 2005.

2005 P Cr. L J 2003

[Peshawar]

Before Ejaz Afzal Khan, T

JAMIL KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No.768 of 2005, decided on 26th August, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324/34---Bail, grant of---Charge of catching hold of a person being fired at---Validity---No person would expose himself to the risk of being hit by holding of a person being fired at---Prosecution story prima facie appeared- to be unbelievable---Accused was granted bail on furnishing bail bond in the sum of Rs.10,000 with one surety.

Muhammad Yaqoob Marwat for Petitioner.

Pir Liaqat Ali Shah, A.A.-G. for the State.

Date of hearing: 26th August, 2005.

2005 P Cr. L J 2016

[Peshawar]

Before Ijaz-ul-Hassan Khan and Muhammad Raza Khan, JJ

NOOR ZAMAN---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.35 of 2005, decided on 6th September, 2005.

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

----S. 302(b)---Appreciation of evidence---Sole eye-witness, the complainant in the present case had consistently adhered to prosecution version word by word and fully supported prosecution case giving all necessary details---Witness had faithfully deposed what was witnessed by her---Version of the witness could not be impeached or shattered despite lengthy and searching cross-examination---During cross-examination of complainant/eye-witness, no material questions were put to her to shake intrinsic value of her evidence---Mere fact that eye-witness was relative of deceased, was not per se enough to discredit her unless it was established that she was inimical towards accused---If it was found that in circumstances of the case her presence at the spot could not be denied, then her evidence could not be discredited for minor contradictions---Defence could not bring on record that involvement of accused in the case was on account of ulterior motives coupled with mala fides to ensure his conviction---Truthfulness or falsehood of prosecution witness could be verified by making references to other incriminating material available on record which could be in the shape of oral testimonies of co-witnesses of incident, recovery of crime empties, promptly lodging report of incident and other circumstantial evidence---Complainant's lodging of F.I.R. without any loss or time and describing role played by accused in commission of offence lent full strength to prosecution story---Case, though was a case of solitary witness, but testimony of a solitary witness itself was not a demerit or disqualification which could call for its repudiation, when otherwise it rang true and inspired confidence---Eye-witness though was widow of deceased, but no motive could be attributed to her to falsely implicate accused---Medical evidence was in complete harmony with ocular testimony of complainant and no conflict could be pointed out to create dent in prosecution story---Strong motive was alleged against accused and said motive was furnished in F.I.R. as well as in statement of complainant/eye-witless---Prolonged and noticeable abscondence of accused extending to five years, three months and seventeen days would go a long way to corroborate and strengthen the truth of prosecution version---Accused had not been able to point out any serious defect in investigation, other than certain minor lapses which did not affect validity of trial---Prosecution, in circumstances had successfully brought home guilt to accused beyond any shadow of doubt---Impugned judgment of Trial Court was maintained.

Ali Raza v. Fazal Wahid PLD 2004 Pesh. 20; Farman Ali and others v. The State PLD 1980 SC 201; Muhammad v. Pesham Khan 1986 SCMR 823; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758; Twaib Khan and another v. The State PLD 1970 SC 13; Irshad Ahmad and others v. State and others PLD 1996 SC 138; Ahmad Khan v. The State 1999 SCMR' 803 and Aminullah v. The State PLD 1976 SC 632 ref.

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

----S. 302(b)---Appreciation of evidence---Testimony of relative---If testimony of relative was corroborated through circumstantial evidence or other piece of evidence, then their relationship, friendship or relation with deceased would not be sufficient to discredit such a witness particularly when there was no motive to falsely involve accused.

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

----S. 302(b)---Appreciation of evidence---Solitary eye-witness---Conviction could be based on statement of solitary eye-witness provided same was confidence-inspiring and rang true and also satisfied conscience of Court---Quality of evidence which was to be seen and not the quantity.

Istikhar alias Istikhar v. The State and others PLD 2004 Pesh. 143; Mali v. State 1969 SCMR 76 and Muhammad Siddique alias Ashraf and 3 others v. State 1971 SCMR 659 ref

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

---S. 302(b)---Appreciation of evidence---Motive---Mere absence or weakness of motive would not come in the way of prosecution if case was otherwise proved by reliable evidence---Motive was not considered a sine qua non for proving evidence of murder and mere absence of motive was no ground to doubt the truth of prosecution case.

Muhammad Ramzan v. The State PLD 1992 (sic) 302; Government of Sindh v. Sobharo 1993 SCMR 585; Gul Raza v. The State and 4 others PLD 2004 Pesh. 219; Rahim Shah v. The State and another 2004 PCr.LJ 1129 and Awais and another v. The State and another 2004 PCr.LJ 377 ref.

Farooq Akhtar for Appellant.

Ehsan-ul-Haq Malik for the State and complainant in person.

Date of hearing: 6th September, 2005.

2005 P Cr. L J 2030

[Peshawar]

Before Nasir-ul-Mulk, C.J. and Ejaz Afzal Khan, J

QASEEM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.769 of 2004, heard on 26th October, 2004.

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

----S. 9---Appreciation of evidence---Significant contradictions appeared in prosecution evidence---Investigating Officer had stated that raid on the hotel was conducted at 1.00/1.30 p.m. whereas marginal witness had categorically stated that incident had taken place in the morning---Investigating Officer had alleged that Charas was recovered from one pocket, whereas marginal witness claimed that recovery was effected from two pockets of the accused---Since only 4 grams of Charas had been separated for Chemical Examination, if version of marginal witness was accepted, then no further clarification was made as to how much narcotics were recovered from each pocket and at what place 4 grams were separated for dispatching to Forensic Science Laboratory---Investigating Officer had stated in cross-examination that parcel produced in Court in which narcotics were packed, was not sealed, whereas in F.I.R., Investigating Officer had stated that narcotics had been sealed in a separate parcel---Seal of parcel had gone amiss, in circumstances---Sample for Forensic Science Laboratory was separated soon after incident on 23-4-2002, whereas parcel was received, according to report of said Laboratory, on 20-5-2002 at said Laboratory and no explanation had been given for said delay---Prosecution case, in circumstances suffered from reasonable doubts, benefit of which must go to accused---Conviction and sentence of accused were set aside and he was set at liberty forthwith.

Noor Alam Khan for Appellant.

Arbab Muhammad Usman, A.A.-G. for the State.

Date of hearing: 26th October, 2004.

2005 P Cr. L J 2034

[Peshawar]

Before Shahzad Akbar Khan and Salim Khan, JJ

QAYUM---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No.954 of 2004, heard on 7th March, 2005.

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

----S. 9(b)---Appreciation of evidence---Delay of six days occurred in sending samples to Laboratory, delay of 22 days had occurred in checking samples and preparation of report and delay of 15 days had occurred in receiving back the report of Forensic Science Laboratory, but such delays had not been explained---Said delays made case against accused doubtful to the extent that it had not been proved by prosecution that samples of contraband Charas were safe for six days in Police Station and for 22 days in Laboratory before report---Police officials, though were as good witnesses as other persons, but circumstances of the case had shown that police considered accused as a previous convict and dealer in contraband and had taken Rs.10,000 from his person at time of alleged recovery of contraband Charas without making any entry about it---Recovery of Charas had not been proved by evidence of private persons, who were expected to be present at the scene of occurrence---Case against accused had not been proved beyond doubt---Accused was acquitted of charge against him giving him benefit of doubt.

Noor Alam Khan for Appellant.

Aamir Sabir for the State.

Date of hearing: 7th March, 2005.

2005 P Cr. L J 794

[Quetta]

Before Fazal-ur-Rehman and Muhammad Nadir Khan, JJ

THE STATE---Appellant

versus

MOULA BAKHSH alias MOULAK---Respondent

Murder Reference (ATA) No.4 of 2003, decided on 22nd September, 2004.

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

----Ss. 302(b) & 353---Anti-Terrorism Act (XXVII of 1997), Ss.7(a) & 21-L---Appreciation of evidence---Manner in which the incident took place and the presence of the absconding accused at the place of occurrence were not open to any doubt---Eye-witnesses being not inimical towards the accused were natural and independent witnesses---Mere fact of the witnesses being levies personnel, would not make them interested as they had no reason to substitute the absconding accused for the real killer---Incriminating articles recovered in the case, according to the report of Chemical Examiner, were stained with human blood---Ocular testimony was corroborated by medical evidence, circumstantial evidence and abscondence of the accused---No mitigating circumstance for awarding lesser penalty of imprisonment for life was available in favour of accused who had committed the brutal murder without any justification acting as a desperate and hardened criminal sharing common intention---Conviction and sentences of accused were upheld in circumstances answering the murder reference in affirmative.

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

----S. 34---Common intention---Principles---Acts done by several persons in furtherance of common intention---Common intention has to be gathered from the facts disclosed in evidence and surrounding circumstances, which can even be formed at the spur of the moment---When the accused are found having common intention in the crime, then it becomes immaterial as to which role was played by whom in the occurrence---Section 34, P.P.C. creates joint liability for those who indulge in the organized commission of crime.

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

----Ss. 302(b) & 353---Appreciation of evidence---Police witnesses---Principles---Evidence of police officials who are natural witnesses cannot be discarded without considering the same on merits.

Ghulam Mustafa Mengal, Addl. A.-G. for Appellant.

Miss Saima Jibreel for Respondent.

Date of hearing: 14th September, 2004.

2005 P Cr. L J 830

[Quetta]

Before Fazal-ur-Rehman and Amanullah Khan, JJ

MUHAMMAD ALI and another---Appellants

versus

THE STATE and another---Respondents

Criminal Appeal No.47 of 2004 and Criminal Revision No.17 of 2002, decided on 10th November, 2004.

(a) Criminal trial---

----Burden of proof---Onus in criminal trial under the general law always lies on the prosecution which has to prove its case and succeed on the strength of the same and not on the weakness of defence---Accused has only to create a dent in the prosecution case in order to become entitled to the benefit of even a single doubt, and he need not to show that his case suffers from more than one doubt.

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

----S. 302(b)---Appreciation of evidence---Sole statement of the complainant, who being brother of the deceased was an interested witness, did not inspire confidence without corroboration from any independent source---Dying declaration made by the deceased in an injured condition was neither complete nor validly proved---Delay in recording the statements of witnesses under S.161, Cr.P.C. was not explained---Motive for the occurrence was not proved---Medical evidence had negated the prosecution version---Neither any blood stains were seen at the alleged place of occurrence, nor any crime-empty was recovered from there---Each piece of evidence being defective and having no intrinsic value, could not corroborate the prosecution story---Accused was acquitted in circumstances.

1994 SCMR 1; PLJ 1975 Cr. Cases 98; PLD 1978 SC 298; PLD 1965 SC 151; 1973 SCMR 26; 1995 SCMR 1345 and 1999 SCMR 1220 ref.

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

----S. 302(b)---Appreciation of evidence---Principles---One piece of tainted evidence cannot corroborate another tainted piece of evidence.

M. Aslam Chishti for Appellants.

Jaffar Raza Khan for Respondents.

M. Qahir Shah for the Complainant.

Date of hearing: 25th October, 2004.

2005 P Cr. L J 882

[Quetta]

Before Raja Fayyaz Ahmed, J

NAZEER AHMED BARACH---Petitioner

versus

THE STATE and another---Respondents

Criminal Revision No.6 of 1998, decided on 5th November, 1998.

Penal Code (XLV of 1860)---

----Ss. 420, 468, 469 & 471---Qanun-e-Shahadat (10 of 1984), Arts.72, 73, 76 & 162---Appreciation of evidence---Secondary evidence, admissibility---Documents produced in evidence by prosecution, except the report of Handwriting Expert and specimen signatures of accused, unless admitted in writing before Trial Court by accused within the meaning of Art.76(c) of Qanun-e-Shahadat, 1984, would not dispense with the requirement of the formal proof of documents by primary evidence as provided by Arts.72 & 73 of Qanun-e-Shahadat, 1984---Secondary evidence could not be admitted in evidence except on satisfying one or more conditions laid down in Art.76 of Qanun-e-Shahadat, 1984 by party tendering such evidence---Secondary evidence could not be admitted of the contents of document without non-production of original having first been accounted for---Reception of secondary evidence without objection by the party against whom it was intended or required to be used in evidence could not ordinarily object to the admission of such evidence at any subsequent stage, subject to provisions of Art. 162 of Qanun-e-Shahadat, 1984---Documents tendered by prosecution were received in evidence improperly without production of their original and without satisfying conditions prerequisite for permitting secondary evidence---Mere consent or omission to object to the reception of inadmissible evidence, could not be treated as a valid and legal piece of evidence because such departure from rule appeared to have a substantial effect on the decision of the Courts below, which, if excluded, might have resulted in different decision, in view of facts and circumstances of case---Judgments impugned thus, could not be sustained---Appraisal of evidence at revisional stage being improper and unjustified, case was remanded to Trial Court after setting aside judgments of Courts below for re-writing same after hearing parties---Accused was directed to be released on bail.

PLD 1978 Lah. 47; 1990 CLC 331 and 1982 PCr.LJ 658 ref.

Basharatullah for Petitioner.

Zahid Ansari for Respondent No.1.

Muhammad Riaz Ahmed for Respondent No.2.

Date of hearing: 30th October, 1998.

2005 P Cr. L J 894

[Quetta]

Before Muhammad Nadir Khan, J

BISMILLAH KHAN KAKAR---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.260 of 2002, decided on 12th December, 2002.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 186, 504, 506, 147, 148 & 149---Representation of the People Act (LXXXI of 1976), Ss.82 & 82-A---Pre-arrest bail, refusal of---Allegation against accused and his co-accused was that they attacked and abused Returning Officers of respective constituencies as Election Commission had declared election of said constituencies as invalid and re-election was ordered---Both accused and his co-accused were nominated and were stated to be accompanied by their armed supporters who attacked the Returning Officers---Said allegations made in F.I.R. were supported by officers who were present at the spot at the time of incident---Record did not show that either the complainant or any of the other witness had any reason or motive to falsely implicate accused or his co-accused in commission of offence---Accused failed to state any other dispute between the parties on account of which complainant or the witnesses could be said to have any motive against accused for his false implication in the case---Allegation against accused that he per force demanded announcement of election which Election Commission had declared invalid, his said act prima facie amounted to interference in the orderly conduct of election---Said offence of accused fell under S.82-A of Representation of the People Act, 1976 which was punishable with imprisonment which could extend to 5 years with fine---Criteria for grant of pre-arrest bail was not similar to the grant of bail after arrest---Grounds for grant of anticipatory bail as laid down by Supreme Court in its judgment PLD 1983 SC 82, were not available in the present case---No reason was shown for extending concession of anticipatory bail to accused because no ulterior motive on part of complainant or other officers whom accused allegedly attacked and abused, was reflected from circumstances of the case---Application for grant of anticipatory bail was rejected, in circumstances.

Murad Khan v. Fazl-e-Subhan and others PLD 1983 SC 82 ref.

Noor Muhammad Achakzai for Applicant.

A.-G. for the State.

Date of hearing: 9th December, 2002.

2005 P Cr. L J 912

[Quetta]

Before Raja Fayyaz Ahmed, C.J. and Fazal-ur-Rehman, J

SHAMREZ KHAN---Appellant

versus

THE STATE through Regional Accountability Bureau, Balochistan---Respondent

Criminal Ehtesab Appeal No.72 of 2001, decided on 6th February, 2003.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a-III), 10(2), 25 & 32---Penal Code (XLV of 1860), Ss.409, 420, 467, 471, 477-A & 109---Appreciation of evidence---One of the allegations against accused was that he was attorney of one absconding accused who being contractor caused shortage of wheat in question---Trial Court found accused responsible for shortage of wheat allegedly made by said contractor---Accused denied having any dealing with the contractor---No reference or report under S.173, Cr.P.C. had been filed against accused indicating the shortage of wheat caused to Government by said absconding co-accused contractor and ascertained by Trial Court---Alleged power of attorney in favour of accused having not been proved in accordance with law, same could not be relied upon for attributing shortages to him---Accountability of an accused person was indeed a laudable objective, but finding must reflect transparency and strict adherence to the principles of natural justice---Alleged power of attorney had wrongly been relied upon despite same was not registered one and had not been even otherwise proved against accused---Plea bargaining of accused which was accepted by Chairman, National Accountability Bureau should have been approved by Trial Court keeping in view the circumstances of case and in the interest of justice---No reason existed to disapprove the plea bargaining on the same terms and conditions which had been accepted by Chairman, National Accountability Bureau---High Court approved the plea and directed that after complying with the terms and conditions of plea bargaining, accused be released---Disqualification clause, would however, remain intact.

1995 CLC 531; 1990 CLC 1014; PLD 2003 SC 31; PLD 2001 SC 607 and PLD 2003 SC 46 ref.

Waseem Sajjad and M. Riaz Ahmed for Appellant.

M.S. Bakhshani, D.P.G., NAB for the State.

Date of hearing: 6th January, 2003.

2005 P Cr. L J 941

[Quetta]

Before Raja Fayyaz Ahmed, C.J. and Akhtar Zaman Malghani, J

MUHAMMAD SHARIF---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.85 of 2004(A.T.A.), decided on 14th September, 2004.

Penal Code (XLV of 1860)---

----Ss. 337-A, 353, 504 & 34---Anti-Terrorism Act (XXVII of 1997), Ss.2, 6, 7 & 25---Appreciation of evidence---Jurisdiction of Anti-Terrorism Court---Appeal, limitation for---Disruption and interference with duties of public servant, no doubt was caused by accused and a minor simple injury was also caused by him to public servant, but such an act of violence against a public servant would not attract the definition of "Terrorism" contained in S.6 of Anti-Terrorism Act, 1997 being not a "serious" interference, "serious" disruption, "serious" coercion or intimidation or a "serious" violation against a public servant within the meaning of S.2(m) of said Act---Apparently attributed act on the part of accused, in circumstances would not amount to be dangerous to life or property---Application of provisions of S.6(2), (m) & (n) of Anti-Terrorism Act, 1997, appeared to be out of question---Court constituted under Anti-Terrorism Act, 1997, in circumstances had no jurisdiction to try the case for complete lack of jurisdiction and cognizance taken by Anti-Terrorism Court of offences in the light of material produced with the challan and the proceedings of case including trial and judgment finally passed by said Court as a result of said proceedings being corum non judice, were nullity in the eye of law and same being void and without jurisdiction, could not be maintained---Appeal against such judgment, in peculiar facts and circumstance of case, could not be hit by limitation as no limitation against such order or judgment would run against the appellant---Conviction of accused and non-appealing co-accused, including judgment impugned herein, were set aside---Appeal was allowed.

Taj Muhammad v. The Judge, Anti-Terrorism Court and another PLD 2003 Lah. 588; 1994 SCMR 717; PLD 2001 SC 169; 1992 PCr.LJ 2308; Muhammad Shafi v. Mushtaq Ahmed through Legal Heirs and others 1996 SCMR 856; Syed Nazir Hassan v. The Settlement Commissioner and another PLD 1974 Lah. 434; Rashid Ahmed v. The State PLD 1972 SC 271; Malik Khawaja Muhammad and 24 others v. Marduman-e-Babar Kahol and 29 others 1987 SCMR 1543 and Mst. Rehmat Bibi and others v. Punnu Khan and others 1986 SCMR 962 ref.

Naeem Akhtar for Appellant.

Salahuddin Mengal, A.-G. for the State.

Date of hearing: 20th August, 2004.

2005 P Cr. L J 1410

[Quetta]

Before Fazal-ur-Rehman, J

Haji NASRULLAH and 12 others---Petitioners

Versus

Molvi ABDUL HALEEM and 8 others---Respondents

Criminal Miscellaneous Quashment No.38 of 2003, decided on 23rd September, 2004.

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

----Ss. 147 & 561-A---Quashing of proceedings---Complaint filed by the petitioners under S.147, Cr.P.C. had been dismissed by the Magistrate---Sessions Court in exercise of its revisional jurisdiction set aside the said order vide the impugned order---After having observed that the petitioners had approached the Civil Court for redress of their grievance and a status quo order had also been passed by the Civil Court in their favour, Sessions Court was not justified in setting aside the order of the Magistrate and allowing the revision petition of the respondents, which had amounted to abuse of the process of law---Impugned order passed by the Sessions Court, was quashed in circumstances.

2000 PCr.LJ 559; Shah Muhammad v. Haqnawaz and others PLD 1970 SC 470; PLD 1996 SC 541 and 1998 PCr.LJ 240 ref.

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

----S. 145---Dispute concerning land etc.---Scope---Property regulated by Civil Court goes out of the jurisdiction of Magistrate---Where the possession of the same property has been regulated by the Civil Court, the matter falls outside the jurisdiction of the Magistrate under S.145, Cr.P.C.

2000 PCr.LJ 559 and Shah Muhammad v. Haqnawaz PLD 1970 SC 470 ref.

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

----Ss. 145 & 561-A---Dispute concerning land etc.---Civil litigation not to be converted into criminal litigation---Magistrate should never permit civil litigation to be converted into criminal litigation---Where a civil dispute is brought before a Criminal Court, the proceedings before it are illegal and liable to be quashed by the High Court.

Abdul Wasay Tareen for Petitioners.

Jamal Khan Mandokhail for Respondents.

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

Date of hearing: 27th August, 2004.

2005 P Cr. L J 1442

[Quetta]

Before Amanullah Khan Yasinzai and Fazal-ur-Rehman, JJ

THE STATE through Advocate-General, Balochistan, Quetta---Appellant

Versus

Jamadar MUHAMMAD KHAN and another---Respondents

Criminal Acquittal Appeal (A.T.A.) No.66 of 2002 and Murder Reference No.22 of 2002, decided on 22nd March, 2005.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), Ss.7(a) & 21-L---Appreciation of evidence---Incident had taken place in main "Bazaar" during daylight---Owner of the shop, the prosecution witness, on account of fear had concealed himself beneath the table---Anti-Terrorism Court taking into consideration the facts and circumstances of the case took cognizance of the same and also framed charge under S.7(a) of the Anti-Terrorism Act, 1997---No prejudice had been caused to the absconding accused by their trial by the Special Court which, in view of S.32 of the Anti-Terrorism Act was deemed to be the Court of Session---Impugned judgment was neither arbitrary nor perverse---Trial Court had discussed the evidence---Ocular evidence was supported by medical as well as circumstantial evidence---Abscondence of accused had also been considered as corroborative evidence---Presence of the accused armed with kalashnikovs at the place of occurrence and their firing at the deceased with common intention resulting in his death at the spot, was proved on the record---Conviction of accused passed in absentia was upheld in circumstances---However, case of accused being identical to that of co-accused who had been sentenced to imprisonment for life by Trial Court, death sentence awarded to each of them was reduced to imprisonment for life on the principle of consistency in the interest of justice.

2004 PCr.LJ 1878; PLD 2003 Quetta 122; PLD 2003 Quetta 11; PLD 2001 SC 521; C.P. No.681 of 1999; Criminal Appeal No.85 of 2004; PLD 2004 SC 917 and PLD 2003 SC 224 ref.

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

----Preamble, Ss.6, 7 & 8---Object and purpose of the Anti-Terrorism Act, 1997---Object to promulgate Anti-Terrorism Act, 1997, was to control the acts of terrorism, Sectarian violence and other heinous offences as defined in S.6 of the said Act and their speedy trials---Such offences should have nexus with the object of the Act and should be covered by its Ss.6, 7 & 8.

PLD 2004 SC 917 ref.

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

----S. 25---Appeal against acquittal---Competency---"Attorney-General" or "Advocate-General" only are competent to file appeal against acquittal of accused on the directives of respective Governments---No third category by way of "Additional Advocate-General" or "Public Prosecutor" is empowered to file such appeal under S.25 of the Anti-Terrorism Act, 1997.

2000 PCr.LJ 1418 ref.

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

----S. 148---Application and scope of S.148, P.P.C.--Rioting, armed with deadly weapon---Essentials---Accused cannot be convicted under S.148, P.P.C. unless he is found to be a member of an unlawful assembly using force or violence in prosecution of the common object of. such assembly.

PLD 1996 SC 2199(b) ref.

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

----S. 34---Acts done by several persons in furtherance of common intention---Prerequisite---Vicarious liability cannot be visited unless some strong circumstance showing common intention exists---Mere presence of a person on the spot does not necessarily attract the application of S.34, P.P.C.

1978 SCMR 49 ref.

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

----S. 320(b)---Anti-Terrorism Act (XXVII of 1997), Ss.7(a) & 25---Appeal against acquittal---Appeal against acquittal of accused having been filed under S.25 of the Anti-Terrorism Act, 1997, by the Additional Advocate-General, the same was not maintainable---Trial Court had discussed the evidence and given reasons for its conclusion---Mere presence of the accused in the car without any overt act towards commission of the crime had made their case distinguishable from co-accused who had made firing on the deceased resulting in his death---Impugned judgment of acquittal did not suffer from any illegality or material irregularity---Appeal was dismissed being incompetent and having no substance in circumstances.

2000 PCr.LJ 1418; PLD 1996 SC 2199(b); 1978 SCMR 49; 1992 SCMR 96; 1995 SCMR 635 and 1992 SCMR 1036 ref.

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

----S. 417---Anti-Terrorism Act (XXVII of 1997), S.25---Appeal against acquittal---Principles---Courts should be slow to interfere with the judgment of acquittal, unless it has done gross injustice in the administration of criminal justice or is perverse or completely illegal and on perusal of evidence no other conclusion other than the guilt of accused can be drawn, or complete misreading of evidence has resulted in miscarriage of justice.

1992 SCMR 96; 1995 SCMR 635 and 1992 SCMR 1036 ref.

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

----S. 34---Acts done by several persons in furtherance of common intention-Section 34, P.P.C. creates joint liability for the persons who indulge in the organized commission of crime---Common intention has to be gathered from the facts disclosed in evidence and surrounding circumstances---Common intention can be formed even at the spur of the moment and once it is found to have been formed, then it is immaterial as to which part was played by whom and each one of such persons would be liable for the offence as if he alone had perpetrated it.

Khalid Dogar, Public Prosecutor (A.T.A.) for the State.

Amanullah Kanrani for Respondents.

Date of hearing: 9th March, 2005.

2005 P Cr. L J 1675

[Quetta]

Before Ahmed Khan Lashari and Amanullah Khan Yasinzai, JJ

GUL MUHAMMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.163 of 2002, decided on 4th May, 2005.

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

----Ss. 9 & 13---Possession of arm---Nature and scope---Physical possession of arm and its use by a person without holding a licence or a permit constitutes an offence under the law---Mere constructive and presumed control of the arm does not constitute a liability which the law might, for other purposes, import into the facts of the case.

PLD 1967 Pesh. 53 and Emperor v. Santa Singh AIR (31) 1944 Lah. 339 ref.

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

------Ss. 9 & 13-Possession-Intention and consciousness essential---Possession is linked with intention or consciousness and knowledge of the person which is to be established to bring the case within the four corners of the proviso of S.13 of the Arms Ordinance in order to constitute an offence---There can be no possession without intention and consciousness---Where crime is based on possession, the same must be established through evidence.

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

----Ss. 13-E & 9---Appreciation of evidence---Plea of self-defence and grave and sudden provocation of the accused had been believed in the main murder case and it was held that the deceased along with other came to the house of accused and attacked him---When the wife of accused interfered, deceased and she who was holding the Holy Qur'an fell down; then the accused collected the kalashnikov and made fires on the deceased and injured two others---Production of kalashnikov just after the incident to the Investigating" Officer, in the circumstances, did not come within the purview of S.13(e) or hit by S.9 of the Arms Ordinance---Accused was acquitted accordingly.

PLD 1967 Pesh. 53 and Emperor v. Santa Singh AIR (31) 1944 Lah. 339 ref.

Shams-ud-Din for Appellant.

Sardar Munir Durrani for the State.

Qahir Shah for the Complainant.

Date of hearing: 6th April, 2005.

2005 P Cr. L J 1689

[Quetta]

Before Akhtar Zaman Malghani and Mehta Kailash Nath Kohli, JJ

MEHDI and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.72 Criminal Revision No.10 of 2004, decided on 16th May, 2005.

Penal Code (XLV of 1860)---

----S. 302(c)---Appreciation of evidence---Deceased and his brother armed with butcher daggers were proved by independent evidence to have entered into the shop of the accused where a quarrel took place between the parties, during the course of which the accused caused a dagger blow to the deceased which proved fatal---Accused did not repeat the blow which showed that he had no intention to cause the murder of the deceased---Accused might have a genuine apprehension in his mind that he would be attacked, but admittedly neither the deceased nor his brothers had caused any injury to the accused---Accused, therefore, by causing the death of the deceased had exceeded the right of private defence which offence fell under S.302(c), P.P.C.---Deceased and his brothers in entering the shop of accused, as stated above, had acted in aggression and the sentence awarded to accused was excessive---Conviction of accused was consequently maintained, but his sentence of 14 years' R.I. was reduced to 7 years' R.I. with benefit of S.382-B, Cr.P.C.---Deceased and his brothers being aggressors, legal heirs of the deceased were not entitled to any compensation in circumstances.

1968 PCr.LJ 1022; PLD 1987 Lah. 603; 1988 SCMR 25; 2000 YLR 2976; 1990 SCMR 1395; 1995 SCMR 1515; Safdar Ali's case PLD 1953 SC 93; Muhammad Sharif v. The State 1985 SCMR 1684 and PLD 1996 SC 274 ref.

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

----S. 302(c)---Right of self-defence, exercise of---Principles---In a state of panic when the right of self-defence is being exercised, the impulse of accused cannot be measured in golden scales and he, in the heat of moments, cannot possibly he expected to modulate his action step by step.

1988 SCMR 25 ref.

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

----S. 302---Appreciation of evidence---Principles---Defence emanating from the evidence, its benefit to go to accused---Where defence is made out from the facts, circumstances and evidence available on record and such plea even if not raised in defence, the benefit of the same is to be extended to the accused not as a matter of grace but as a matter of right.

Safdar Ali's case PLD 1953 SC 93 ref.

Ali Ahmed Kurd for Appellant.

Naeem Akhtar Afghan for Respondent.

Aminuddin Bazai Addl. A.-G. for the State.

Date of hearing: 20th April, 2005.

2005 P Cr. L J 1864

[Quetta]

Before Raja Fayyaz Ahmad, C.J. and Akhtar Zaman Malghani, J

SYED MUHAMMAD and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.50 and 75 of 2004, decided on 18th July, 2005.

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

----S. 465---Accused a lunatic---Trial---Practice and procedure---Court is under no obligation to enquire into the fact of unsoundness of mind of an accused who is ordinarily to be presumed as sane---Enquiry should not necessarily be held under S.465, Cr.P.C. read with S.464, Cr.P.C., merely because the accused has moved an application, which is to be undertaken only where it appears to the Court from its own observations or from any other factor that the accused is incapable of making his defence because of unsoundness of mind.

1968 PCr.LJ 1930 ref.

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

----S. 84---Act of person of unsound mind---Every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his acts, unless the contrary is proved---To establish insanity it must be clearly proved that at the time of committing the act the accused was labouring under such defect of reason as not to know the nature and quality of the act which he is committing, i.e., the physical nature and quality as distinguished from the moral, or if he does know the nature and quality of the act he is committing, that he does not know that he is doing wrong.

AIR 1961 SC 998 and Henry Perry 14 Cri App Rep 48 ref.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S.465---Appreciation of evidence---Trial Court had rightly tried the accused without adhering to the provisions of 5.465, Cr.P.C. because no plea regarding insanity of accused was taken at the time of commencement of the trial or thereafter, nor any application was moved in this regard till close of the prosecution evidence---Fact that at the time of framing of charge the accused had pleaded not guilty and took the plea that he could not drive a car, showed that he fully understood the charge and was capable of making defence---Accused, thus, was not suffering from any such disease .which could make him incapable of making defence and his application under section 465, Cr.P.C. had been rightly rejected by the Trial Court---Prosecution witnesses had supported the prosecution version categorically stating that 15 kilograms of "Charas" was recovered from the vehicle, driven by the accused---Said recovery was not even seriously disputed by the defence---Defence plea that the accused could not drive the car and that he was mad, could not be substantiated and was false---Defence witnesses were all chance witnesses who could not satisfactorily explain their presence at the place of occurrence and no implicit reliance could be pleaded on their statements---Conviction and sentence of accused were upheld in circumstances.

PLD 2004 SC 856; 2004 SCMR 1106; 1968 PCr.LJ 1930; AIR 1961 SC 998; Henry Perry 14 Cri App Rep 48; PLD 1963 SC 1; Aurangzaib v. State 1971 PCr.LJ 1285 and Ata Muhammad v. The State PLD 1960 Lah. 111 ref.

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

----S. 465---Penal Code (XLV of 1860), 5.84---Sanity---Determination---Medical and legal standards of sanity---Distinguishing features---Medical and legal standards of sanity are not identical---From the medical point of view it may be correct to say that the act of murder by itself denotes an unhealthy and abnormal state of mind of the murderer, but from the legal point of view he is sane as long as he can understand that his act is contrary to law.

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

----S. 84---Insanity---Legal concept---No amount of queerness in habit, morbidity of temper, peculiarities of character, eccentricities of behaviour or even aberrations of mind resulting in abnormality, will constitute insanity for the purpose of S.84, P.P.C., although the same may be relevant factors for determining whether or not the accused was insane.

Aurangzaib v. State 1971 PCr.LJ 1285 and Ata Muhammad v. The State PLD 1960 Lah. 111 ref.

Kamran Murtaza for Appellants (in Criminal Appeal No.50 of 2004).

Waseem Khan Jadoon for Appellants (in Criminal Appeal No.75 of 2004).

Abdul Karim Langove for the State (in both Appeals).

Date of hearing: 2nd May, 2005.

2005 P Cr. L J 226

[Shariat Court (AJ&K)]

Before Muhammad Reaz Akhtar Chaudhry, C.J. and Syed Hussain Mazhar Kaleem, J

FAZAL DIN‑‑‑Appellant

Versus

ADVOCATE‑GENERAL, AZAD JAMMU AND KASHMIR MUZAFFARABAD and 2 others‑‑‑Respondents

Criminal Appeal No.38 of 2004 and Criminal Reference No.39 of 2004, decided on 12th November, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Fact that three eye‑witnesses were present at the place of occurrence and they had witnessed same was fully proved‑‑‑No contradiction was found among those three witnesses regarding place, time and manner of occurrence and complete concord existed in the statements of those witnesses on said points‑‑‑Statements of said eye‑witnesses were further corroborated by recovery of gun allegedly used in occurrence and the empty‑‑‑Gun and empty cartridge were identified by recovery witnesses and no contradiction existed between recovery witnesses regarding the time, place and manner of recovery of gun and empty‑‑‑Recovery of gun, as offensive weapon, in circumstances had been proved beyond any doubt‑‑‑Version of prosecution that bullet was fired from the gun was corroborated from the report of Fire‑arm Expert‑‑‑Ocular statements of eye‑witnesses whose presence at the spot had been proved was fully corroborated from post­mortem report‑‑‑Purgation of eye‑witnesses was duly conducted and according to, purgation, all said three witnesses were found of good reputation and were never found involved in any false evidence‑‑‑Said witnesses offered their prayer daily, for five times‑‑‑Eye‑witnesses though were brothers, but were not brothers of the deceased‑‑‑Presence of eye‑witnesses at the spot at relevant time was not denied by defence itself‑‑‑Mere relationship of witnesses was no reason for disbelieving their evidence when they had no enmity with accused and nothing was on record to show as to why said witnesses would falsely implicate accused in commission of such offence‑‑‑Admittedly there was dispute between the parties regarding some Khalsa land‑‑‑Prosecution, in circumstances, had proved its case against accused beyond any doubt on the basis of statements of three eye‑witnesses; recovery of gun; two witnesses of recovery of gun and empty; report of Fire‑arm Expert and post‑mortem report and statement of the Doctor‑‑‑Case against accused having been fully proved, he was rightly convicted and sentenced by Trial Court.

1997 PCr.LJ 229; PLJ 1996 Sh. Court (AJ&K) 145; .1970 SCMR 432; Zahoor Ahmad v. The State 1978 PCr.LJ 227 and 1978 PCr.LJ 216 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302 & 53‑‑‑Criminal Procedure Code (V of 1898), Ss.374 & 376‑‑‑Appreciation of evidence‑‑-Award of sentence‑‑‑Determining factors‑‑‑Duty of Court‑‑‑Accused had committed a brutal murder‑‑­Accused came with a gun on the scene of occurrence‑‑‑Deceased tried to run away, but accused took the aim at his head and fired a bullet which hit left side of head of deceased due to which he fell down and died on the spot‑‑‑Accused came with the intention to commit murder and fired bullet at the vital part (Head) of body of deceased and committed the murder of a young man‑‑‑Accused, in circumstances did not deserve any leniency‑‑‑Question of sentence was always determined on the basis of gravity of offence‑‑‑Question of sentence demanded utmost care and caution on the part of the Court dealing with life and liberty of the people‑‑‑Sentence must be weighed in golden scales and must be properly balanced because the basic object of sentence was to create a determent in the society and while awarding sentence all circumstances surrounding the guilt must be carefully borne in mind‑‑‑In determining the sentence overriding consideration must be that it should be fair and produce correct results in‑the given case‑‑‑Normal sentence which must be passed in a case of murder was that of death‑‑‑Trial Court in the present case having rightly awarded sentence of death to accused for brutal murder same was confirmed.

PLD 1979 Kar. 286 ref.

Kh. Muhammad Nasim and Shahid Bahar for Appellant.

Syed Tayyab Gillani, Asstt. A.‑G. for the State.

2005 P Cr. L J 464

[Shariat Court (AJ&K)]

Before Muhammad Reaz Akhtar Chaudhry, C. J. and Iftikhar Hussain Butt, J

Reference No.40 of 2003

THE STATE‑‑‑Complainant/Appellant

Versus

MUHAMMAD SABIR alias SABRI and 4 others‑‑‑Respondents

(Reference made by District Criminal Court, Kotli).

Criminal Appeal No. 54 of 2003

MUHAMMAD SABIR alias SABRI and 2 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

(Appeal against the judgment of District Criminal Court, Kotli, dated 15‑11‑2003).

Criminal Appeal No.56 of 2003

Haji MITHOO KHAN‑‑‑Complainant/Appellant

Versus

MUHAMMAD SABIR alias SABRI and 5 others‑‑‑Respondents

(Appeal against the judgment of District Criminal Court, Kotli dated 15‑11‑2003).

Reference No.40, Criminal Appeals Nos.54 and 56 of 2003, decided on 28th December, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b), 338‑D & 447‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑‑‑Appreciation of evidence‑‑‑Complainant, injured witness and other prosecution witnesses whose presence at scene of occurrence had been proved, had fully supported prosecution case‑‑‑Place of occurrence, presence of complainant along with his deceased son, his daughter and daughter‑in‑law, presence of accused party, fact of firing by lethal weapons and death of deceased by firing shots, had not been disputed by defence‑‑‑Only the manner of occurrence had been disputed by defence and nothing else, in such state of affairs, burden of proof shifted upon defence instead of prosecution‑‑‑Onus of proving case beyond reasonable doubt was always on the shoulders of prosecution, butt in circumstances of case, onus of proving different manners of occurrence and existence of circumstances bringing the case within any of the general exceptions, would be upon defence and defence in the present case had not discharged that burden‑‑‑Prosecution evidence was clear, cogent and confidence‑inspiring which was sufficient to prove prosecution case‑‑‑Prosecution witnesses could not be described as chance witnesses as they had given plausible explanation of their presence at the place of occurrence‑‑‑Eye‑witnesses though were related inter se and also related to deceased, had no animus so as to falsely implicate or substitute accused in commission of offence of murder‑‑­Parties though had no cordial relationship between them on account of dispute of land and were involved in civil and criminal litigation, but it was not humanly possible for a father or a widow or a sister to involve some innocent person in a murder case on account of land dispute instead of real culprit‑‑‑Evidence of eye‑witnesses derived strong support from ample corroboratory and confirmatory evidence‑‑‑No conflict had been found between ocular and medical evidence‑‑‑Recoveries of blood­stained grass, and clay from place of occurrence, recoveries of Kalashnikov and empties and other things, had provided sufficient corroboratory evidence‑‑‑Positive report of Chemical Examiner, report of Forensic Science Laboratory, were also in nature of confirmatory and supporting evidence‑‑‑Accused being trespasser of land in dispute who had claimed to be in possession of the same, had no right under law to use force to the extent of killing lawful occupant and claim a benefit of right of private defence of property‑‑‑Eye‑witnesses were found "Adil" in purgation‑‑‑Ocular testimony of prosecution witnesses was truthful and confidence‑inspiring, which could not he shattered despite lengthy cross-­examination‑‑‑Case of prosecution stood proved by cogent, convincing and trustworthy evidence‑‑‑Motive as set up by prosecution fully supported version, of prosecution‑‑‑Accused having been fully found guilty of offence of murder liable to `Tazir' under S.302(b), P.P.C. had rightly been convicted and sentenced to death‑‑‑Judgment of Trial Court in that respect could not be interfered with‑‑‑Offence under S.447, P.P.C. and Offence under S.13 of West Pakistan Arms Ordinance, 1965, had also been proved against co‑accused.

Muhammad Sarwar, and others v. The State and others PLD 2001 SC (AJ&K) 1; 1986 PCr. LJ 2007; 1992 SCR 249; 1992 PCr. LJ 2092; 1994 PCr.LJ (AJ&K Sh.C.) 393; 1996 PCr.LJ 1817 and 1914; PLD 1999 Lah. 56; NLR 2000 Cr. 364; 2001 YLR 1164; PLD 1984 SC (AJ&K) 82; PLD 1984 Cri. Cases (AJ&K) 167; PLD 1995 Kar. 469; 1997 MLD 115: PLJ 1998 Sh.C. (AJ&K) 97; 2001 YLR 108; 2001 Appeal Cases 238 and 274; 2001 PCr.LJ 524; Wallayat Khan's case PLD 1985 SC (AJ&K) 41; Mst. Farooq Bibi's case 1999 CLC 1358; Abdul Latif v. Safrarish Ali Khan 2004 YLR 1663; Abdul Razzaq and another v. The State 1984 PCr.LJ 1039 and Muhammad Ramzan v. The State 1996 PCr.LJ (AJK) 1076 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b), 338‑D & 447‑‑‑Appreciation of evidence‑‑‑Interested witness‑‑‑Interested witness was not always a liar or an independent or impartial witness was not always reliable, but it was the value of testimony which mattered‑‑‑If the conscience of the Court was satisfied that deposition of a witness was probable, natural, convincing and worthy of credence, it could be relied upon without any further corroboration.

Mehtab Khan v. The State PLD 1979 SC (AJ&K) 23; Niaz Ahmad alias Jaja v. The State PLD 1983 SC (AJ&K) 211; Muhammad Khalid v. The State 1992 SCR 249; Abrar Hussain Shah v. The State 1992 SCR 294; Abdul Rasheed and 3 others Abdul Ghaffar and 5 others 2001 PCr.LJ 524; and Allahdad and others v. Muhammad Nawaz and others 2001 SCMR 1111 ref.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b), 338 & 447‑‑‑Appreciation of evidence ‑‑‑Conviction‑‑­Conviction could be based on testimony of ocular version if it was absolutely, dependable, but Courts always looked for corroboration as a rule of prudence and caution and in order to exclude every possibility of involvement of an innocent person‑‑‑Corroboration could be offered by anything in circumstances of a case which could satisfy the mind of the Court that the witness had spoken the truth.

2000 SCR 123 ref.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b), 338 & 447‑‑‑Appreciation of evidence‑‑‑Medical evidence‑‑‑Not necessary in each and every case that diameter of exit wound should be less than the entry wound, rather generally exit wound was always larger in diameter than entry wound; it would depend on nature of injury, seat of injury, position of victim and weapon used‑‑­Medical evidence would not give identity of assailant, but it would only prove weapon used, number and nature of injuries‑‑‑Medical evidence was type of supporting evidence and when evidence of eye‑witnesses was cogent, clear and convincing, it would lose its value and it could not outwit ocular version.

PLD 1993 SC 895 ref.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b), 338 & 447‑‑‑Appreciation of evidence‑‑Delay in sending recovery articles to expert‑‑‑Sending of recovery articles to the expert with delay could only be termed fatal to prosecution story provided defence succeeded to prove malice on the part of police‑‑‑If the dispatches found to have been delayed, said act on the part of Investigating Officer, could be termed as an irregularity committed during course of investigation‑‑‑Procedural defect, irregularities and sometimes even an illegality committed during course of investigation, would not demolish prosecution case nor vitiate the trial.

Nazeer Ahmad v. The State and another 2002 PCr.LJ 149 and 2002 PCr.LJ 1785 ref.

(f) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b), 338 & 447‑‑‑Material contradictions and minor discrepancies‑‑‑Effect on prosecution story‑‑‑Certain material contradictions, though could demolish prosecution story, but each and every type of minor discrepancy could not be treated as sufficient to uproot charges against accused.

(g) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b), 338 & 447‑‑‑Appreciation of evidence‑‑‑Reason for mitigation should be genuine and be of such a nature which could be said to have provoked accused to commit crime or there must exist some mitigating circumstances‑‑‑Right of defence of property could not be used as pretence for justifying murder.

(h) Penal Code (XLV of 1960)‑‑‑

‑‑‑‑Ss. 302(b), 338 & 447‑‑‑Appreciation of evidence‑‑‑Court had to sift the grain of truth from the chaff of falsehood‑‑‑Testimony of prosecution witnesses could be disbelieved against some accused, but it could also be relied upon against other.

2002 PCr.LJ 1785 ref.

Mirza Muhammad Nisar for Appellants.

Rafiullah Sultani for the Complainant.

Riaz Naveed Butt, Addl. A.‑G. for the State.

2005 P Cr. L J 546

[Shariat Court (AJ&K)]

Before Muhammad Reaz Akhtar Chaudhry, C.J.

EHSAN SARWAR‑‑‑‑Petitioner

Versus

MUHAMMAD NASIM and 5 others‑‑-Respondents

Criminal Revision No.86 of 2004, decided on 20th December, 2004.

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

‑‑‑‑Ss. 498 & 497‑‑‑Bail before arrest‑‑‑Essential condition‑‑‑Difference between "bail before arrest" and "after arrest"‑‑‑One of essential conditions for bail before arrest was that intended arrest should be tainted with mala fide and such mala fide must specifically be pleaded‑‑­Accused, seeking concession of bail before arrest was obliged to state that he apprehended arrest on account of some ulterior motive or prosecution was motivated by malice for causing injury to good will and liberty of accused or police was motivated by some reasons on the basis of some political grounds‑‑‑Bail before arrest was an extraordinary remedy and it would not be allowed just in routine‑‑‑Bail before arrest would effect and. divert normal course of law‑‑‑Considerations laid down for bail before arrest were quite different from those for bail after arrest‑‑‑Bail before arrest could only be allowed in extraordinary circumstances because basic purpose and object of it was to avoid humiliation of a respectable and dignified citizen‑‑‑Courts must refrain from exercising such extraordinary powers just in routine‑‑­In order to justify grant of bail before arrest, accused had to establish that he apprehended his arrest on account of some ulterior motive‑‑­Courts below, in circumstances must be cautious and careful while allowing bail before arrest and it should not be allowed in routine‑‑­Courts should draw distinction between bail before arrest and after arrest.

1983 SCMR 645 and 1982 SCMR 227 ref.

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

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), S.324‑‑‑Bail before arrest‑‑­Allegation attributed to accused was that he had inflicted injury with the hatchet on the head of complainant which was vital part of body‑‑­Medical report showed that the injury was simple in nature, but subsequently Medical Board duly constituted had opined that said injury was Shajjah‑i‑Mudihah, while rest of injuries were Ghyar Jaifah Damiyah‑‑‑Accused having inflicted injury on skull of complainant, it could not be said that offence under S.324, P.P.C" was not committed‑‑­Case of accused being not at all a case of bail before arrest, Court below was not justified to allow him bail.

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

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), S.324‑‑‑Bail before arrest‑‑­Simple and minor injuries having been attributed to co‑accused, they had rightly been allowed concession of bail.

Raja Mazhar Iqbal for Petitioner.

Tariq Pervaiz Nawabi for non‑petitioners

2005 P Cr. L J 1247

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt and Raja Muhammad Ashraf Kayani, JJ

TARIQ MAHMOOD and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.9 of 2003 and Reference No.12 of 2003, decided on 31st December, 2004.

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

----Ss. 302/341---West Pakistan Arms Ordinance (XX of 1965), S. 13---Appreciation of evidence---Conversion of death sentence as Qisas' into life imprisonment---Trial Court conducted purgation of prosecution witnesses and found themAdil'---Accused was named in F.I.R. and a specific role of firing shots upon deceased had been attributed to him---Weapon of offence, a .30-bore pistol, had also been recovered at his instance---Among four witnesses produced by prosecution, one was an independent witness, who was neither related to complainant party nor nursed any grudge or rancor against accused party---Prosecution witnesses had fully supported version of complainant---Ocular version. was clear, cogent, convincing and confidence-inspiring---Minor discrepancies and variations appearing in said testimony, could not be described as contradictions--Prosecution case could not be demolished for said minor discrepancies, as those were natural which had proved that eye-witnesses were not telling parrot like story and they had strongly supported main story of prosecution---Mere relationship of some of the witnesses inter se and with deceased was no ground for discrediting evidence of witnesses unless they were found inimical to accused---Prosecution case stood proved in the light of evidence of complainant and other prosecution witnesses and prosecution story had been supported by sufficient corroboratory, confirmatory and other circumstantial evidence---Record had not proved that police had any grudge or previous enmity against accused to falsely connect him with recoveries, which otherwise stood proved---Patwari, who prepared site-plan, had also supported prosecution version with regard to place of occurrence---F.I.R. which was promptly lodged, had disclosed name of accused and eye-witnesses and same was corroborated by complainant and other prosecution witness---Case having been lodged by eye-witnesses at Police Station, it could not be held that it was unseen occurrence and F.I.R. was lodged after preliminary investigation and deliberations---Motive set up by prosecution, however, was obscure, weak and ambiguous---Absence or weakness of motive was immaterial, when case was otherwise proved by convincing and credible evidence---Eye-witness who was independent one, had no malice or rancor to falsely implicate accused with commission of crime---Accused, who was found guilty of offence of murder of deceased, was rightly convicted, but as motive alleged by prosecution having remained shrouded in mystery, ends of justice would be sufficiently met if his sentence of death be converted into imprisonment for life--Sentence of death awarded to accused was converted into imprisonment for life accordingly.

PLD 1963 SC 17; PLD 1964 Kar. 264; PLD 1965 Kar. 76; PLD1969 SC 27; 1971 SCMR 432; PLD 1976 SC 241; PLD 1977 Lah. 1253; PLD 1982 Lah. 577; PLD 1990 Kar. 314; 1990 PCr.LJ 1765; 1985 PCr.LJ SC (AJ&K) 898; PLD 1986 Lah. 286; PLD 2001 SC (AJ&K) 1; 2001 YLR 1164; 2001 SCMR 199; 2001 PCr.LJ 524; Waris Hussain Shah v. Abid Hussain Shah and 3 others 2001 PCr.LJ SC (AJ&K) 268; PLD 2002 Quetta 97; 2004 PCr.LJ 890; Inayat Masee v. The State 1980 SCMR 937; PLD 1997 Lah. 202; PLD 1990 Cr. Cases (Kar.) 418; Shabbir Ahmad v. The State and another1997 PCr.LJ 1539 and Mumtaz Hussain and another v. Muhammad Arshad and 2 others 2001 PCr.LJ 225 ref.

(b) Criminal trial---

----Appreciation and appraisal of evidence---Principles---Basic principles of appreciation and appraisal of evidence, was its intrinsic value; closely related witnesses could be as reliable as a completely unknown and stranger witness; credibility of a witness would not depend upon relationship, but it would flow from statement which he deposed; it was the nature and quality of statement of a witness which should evoke confidence and trust and if it appeared that a witness was speaking truth, then his evidence would be sufficient to sustain prosecution case.

Ch. Ali Muhammad Chacha for Appellants.

Ch. Khalid Rasheed for the Complainant.

Sardar Muhammad Raziq Khan, Addl. A.-G. for the State.

2005 P Cr. L J 1284

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

SAGHIR AHMAD---Petitioner

Versus

ZULFIQAR AHMAD and another---Respondents

Criminal Revision No.113 of 2004, decided on 24th December, 2004.

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

---Ss. 497(5) & 439---Penal Code (XLV of 1860), S.324/34---Bail, cancellation of---Trial Court granted bail to accused---Application of complainant for cancellation of bail having been dismissed, he had filed revision against said dismissal---Prima facie reasonable grounds existed to connect accused with commission of offence---Prosecution story not only was supported by statement of injured complainant, but also by two eye-witnesses---Three empties had been stated to be recovered from the place of occurrence---According to medical report, complainant had received a bullet injury on mid of right leg from a distance of about 3 to 8 feet---Record had also shown that accused fired four shots on the person of the victim, but one shot only hit him directly---Intention of accused of launching a murderous assault, in circumstances made the act of accused to prima facie fall within the prohibitory clause of S.497, Cr.P.C.---No substance was found in plea of accused that prosecution witnesses being related to complainant, their statements could not be taken into consideration at bail stage---Non-recovery of pistol, the weapon of offence, would not entitle accused for grant of bail especially when accused had prima facie been implicated by eye-witnesses--Evidence of recovery was type of supporting evidence and if ocular version was clear and convincing, coming from unimpeachable source, it could be relied upon without any corroboration and confirmatory evidence---Both Courts below had not applied their judicial mind while passing impugned order and solely depended upon opinion of police---Opinion of a Police Officer was not binding upon the Court, but it had only a persuasive value while order and judgment of a Court was binding upon Police Officers who could have their own opinion after examining the file and draw their own conclusion--Opinion of Police Officer declaring an accused innocent, could not be made basis for the grant of bail---When the Court, after examining material on record, reached the conclusion that defence plea accepted by Investigating Officer was not plausible, Court would not agree with him and then opinion of Court would prevail and accused would not be enlarged on bail---Impugned order had been recorded in a sketchy and slipshod manner without discussing briefly essential facts of prosecution evidence and other incriminating material collected by investigating agency---Shariat Court accepting revision, set aside impugned order and recalled concession of bail.

Liaquat All v. The State PLD 1994. SC 172 and 1996 PCr.LJ 292 ref.

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

-----S. 497---Opinion of police as basis for grant of bail---Opinion of a Police Officer was not binding upon the Court--Opinion of Police Officer declaring an accused innocent could not be made basis for the grant of bail---When the Court, after examining material on record, reached the conclusion that defence plea accepted by Investigating Officer was not plausible, the Court would not agree with him and accused would not be enlarged on bail.

Zulfiqar Ahmad Raja for Petitioner.

Ch. Ashfaq Ahmad for Respondent.

Syed Tayyab Gillani, Asstt. A.-G. for the State.

2005 P Cr. L J 1294

[Shariat Court (AJ&K)]

Before M. Reaz Akhtar Ch., C.J.

JAWAD AYOUB and others---Appellants

Versus

MUHAMMAD FARID and others-Respondents

Criminal Appeals Nos.46, 50, and 53 of 2004, decided on 24th February, 2005.

(a) Criminal trial-----

----Circumstantial evidence--Principles---Prosecution had to prove all the links of chain of circumstantial evidence---No gap should exist between the links of chain---Rule, in case of circumstantial evidence was that the facts proved must be incompatible with the innocence of accused and incapable of explanation upon any other reasonable hypothesis than that of guilt of accused---Concurrence of well authenticated circumstance would compose a stronger ground of assurance than the positive testimony of circumstances--In a case based on a circumstantial evidence, process of inference and deduction involved delicate and perplexing character liable to numerous cases of fallacy---Man could tell lie, but circumstances could not---In order to justify the inference of guilt, incriminating facts must be incompatible with the innocence of accused or the guilt of any other person and capable of explanation upon any other reasonable hypothesis other than that of the guilt of accused---No link in the chain should be missing and all circumstances must lead to the guilt of accused---On basis of circumstantial evidence, conviction could only be recorded when it would exclude all hypothesis of innocence of accused.

1999 SCMR 955; PLJ 1999 CRC 173(sic); 1992 SCMR 1047 and PLD 1966 SC 664 ref.

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

----S. 164---Qanun-e-Shahadat (10 of 1984), Arts.16 & 43---Statement of co-accused---Reliance on such statement---While relying on the statement of co-accused, the Court had to verify it from other corroborative evidence---If statement of co-accused would find corroboration from other evidence, then reliance could be placed on statement of co-accused.

1994 SCMR 932; Rama Kariyappa Pichi and others v. Emperor AIR 1929 Born. 327 and PLD 1960 SC (Pak.) 254 ref.

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

----Ss. 302 & 396---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---West Pakistan Arms Ordinance (XX of 1965), S.13---Appreciation of evidence---No contradiction was found between prosecution witnesses with regard to place, time and manner of recovery of pistol used in occurrence---Complete agreement was found between both prosecution witnesses regarding time, place and manner of recovery of empty of pistol used in the crime---No contradiction existed between statements of prosecution witnesses with regard to time, place and manner of recovery of other articles---Incident was a well pre-planned murder---Entire case of prosecution was based on circumstantial evidence and no direct evidence was available in the case---Prosecution had proved all links of chain of circumstantial evidence and no gap existed among said links---Prosecution, in circumstance had proved its case against accused beyond any reasonable doubt---Contradictions pointed out on part of accused were very minor and were quite natural---Facts proved by prosecution were incapable of any other explanation than that of guilt of accused---One of accused persons who lodged F.I.R., was watchman of college where occurrence had taken place and his duty was to ensure safety of college and deceased Professor, but he betrayed the deceased and he was actual mischief-monger and made the plan---Other co-accused used pistol in occurrence and fired a bullet at the deceased and both of them did not deserve any leniency---Even otherwise in a murder case, normal sentence was death and Court while granting death sentence, had not to record any reason, whereas while awarding lesser sentence, Court had to assign reasons as to why lesser sentence was being awarded to accused---Trial Court, who had awarded life imprisonment to said two accused for murder of deceased, had given no reason as to why lesser sentence was awarded to them---Sentence of life imprisonment awarded to said accused was enhanced to sentence of death under 5.302, P.P.C. along with other sentences awarded to them by Trial Court---Case of third accused was different from both accused persons-Statement recorded under S.164, Cr.P.C. showed that said co-accused, though had joined other accused, but he was not armed with any weapon and his intention was only to the extent of dacoity; it, therefore, could not be said, in circumstances, that said third co-accused had any intention to commit murder of the deceased or that he joined other accused with intention to commit murder---Appeal filed by said third accused, was partly accepted and sentence of life imprisonment awarded to him by Trial Court was set aside and instead sentence of 10 years' R.I. was awarded to him under S.302, P.P.C.

PLD 1995 FSC 20; 1994 SCMR 932; PLJ 1997 B.J. 22; 1994 PCr.LJ 314; 1996 PCr.LJ 130; 1995 SCMR 127 and 2000 PCRLJ 34 ref.

Raja Rafiullah Sultani for Appellants (in Criminal Appeal No.50 of 2004).

Abdul Aziz Ratalvi for Appellants (in Criminal Appeal No.53 of 2004).

Nisar Mirza and Sardar Razaq Khan, Addl. A.-G. for the Complainant and the State (in all criminal appeals).

2005 P Cr. L J 1352

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt and Raja Muhammad Ashraf Kiani, JJ

MUHAMMAD ASLAM and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeals Nos.6 and 23 of 2003, decided on 26th October, 2004.

(a) Penal Code (XLV of 1860)--‑

----Ss. 302/341/34---Appreciation of evidence---Complainant, who appeared as prosecution witness, had fully supported prosecution story and statement of complainant had fully been corroborated by other prosecution witness who in unequivocal terms had supported deposition of complainant---Place of occurrence, presence of accused at the spot, injuries on the person of deceased by a gun fire and presence of complainant along with eye-witnesses at the place of occurrence, had been admitted by defence---All eye-witnesses were unanimous on the point that deceased was killed by firing of accused with .12 bore gun which hit deceased who fell down and later on succumbed to his injuries---Eye-witnesses though were inter se related and also related to deceased, but had no grudge and animus against accused so as to falsely implicate or substitute him in commission of murder in place of some other culprits---Depositions of eye-witnesses were clear, cogent, convincing and reliable---Even otherwise a witness could not be described an interested witness because of mere relationship---Besides related witness, one of prosecution witnesses was an independent witness who had fully supported prosecution tale---Prosecution story, in circumstance had fully been proved by eye-witnesses without any shadow of doubt and version of prosecution had been confirmed by sufficient corroboratory evidence---Medico-legal evidence also corroborated material particulars of prosecution version---Presence of brain and blood-stained concrete and its recovery from site of occurrence also supported prosecution story---Recovery of stick, gun, empty and other relevant things at the instance of accused, ad proved that ocular version was clear, cogent and trustworthy---Sending of recovered articles to Expert with delay, could only be termed fatal to prosecution case, where defence had not been able to establish malice on part of police---Defence in the present case neither had levelled any allegation of malice against Investigating Officer for sending weapon of offence with delay nor any suggestion was put to him during his statement---Delay in sending said things was not fatal, in circumstance---Non-production of inquest report and injury sheet prepared by police was not fatal to prosecution case, because case had otherwise been fully proved by convincing evidence---Minor discrepancies would not demolish prosecution story which appeared to be plausible and was supported by complainant and other eye-witnesses---Motive though had not fully been proved and was shrouded in mystery, but mere absence or weakness of motive was no ground to suspect the truth of prosecution case which otherwise was proved by reliable evidence---Eye-witnesses were found "Adil" during purgation---Prosecution having succeeded to prove case against accused, he was rightly convicted and sentenced by Trial Court.

Muhammad Sarwar and others v. The State and others PLD 2001 SC (AJ&K) 1; PLD 1983 SC 73; 1997 PCr.LJ 1522; 2000 PCr.LJ 1136; 2001 YLR 236; Mst. Farooq Bibi v. Abdul Khaliq and 26 others 1999 CLC 1358; Abdul Latif v. Safarish Ali Khan 2004 YLR 1663; Muhammad Sharif Khan v. The State 1991 PCr.LJ 1992; Muhammad Hanif Khan's case 2001 PCr.LJ 827; Abdul Rashid's case 2001 PCr.LJ 524 and 1997 PCr.LJ 1539 ref.

(b) Criminal trial--‑

----Appreciation of evidence---Interested witness---Witness could not be described as interested witness because of mere relationship---Interested witness was one who would falsely implicate an innocent person with commission of offence with ulterior motive---Mere relationship was no ground for discarding evidence of witness, if his statement seemed to be natural, convincing and truthful.

Khalid and another v. The State PLD 1983 SC 73; Abdul Aziz and another v. Muhammad Lal and others 2001 YLR 236 and Farman Ullah v. Qadeem Khan and another 2001 SCMR 1474 ref.

(c) Qanun-e-Shahadat (10 of 1984)--‑

----Arts. 59 & 60---Expert evidence---Expert's evidence, may it be medical or that of Ballistic Expert, was entirely in nature of confirmatory or explanatory of direct or other circumstantial evidence, but if there was direct evidence which was definite and trustworthy, confirmatory evidence was not of much significance, in any case, it could not outweigh the direct evidence.

2000 PCr.LJ 1484 ref.

(d) Criminal trial--‑

----Procedural defects and irregularities---Procedural defects and irregularities and sometimes even illegality committed during course of investigation, would not demolish prosecution case nor vitiate the trial.

2002 PCr.LJ 1785 ref.

(e) Penal Code (XLV of 1860)--‑

----Ss. 302/341/34---Criminal Procedure Code (V of 1898), S.382-B---Appreciation of evidence---Conversion of extreme penalty of death into life imprisonment and entitlement to benefit of S.382-B, Cr.P.C.---No strong motive existed for accused to do away with life of accused--Murder was not pre-meditated and pre-planned and killing was done on a sudden impulse---Accused fired a single shot upon deceased and he did not reload the gun---Accused was not awarded death sentence by Trial Court who had the opportunity of recording evidence of prosecution and was in a better position to have its opinion on appraisal of prosecution evidence---If murder committed was not pre-meditated and motive was shrouded in mystery, as was the present case, capital punishment was not awarded---In view of peculiar facts and circumstances of case, it would not be appropriate to impose extreme penalty of death as sentence of life imprisonment would meet the ends of justice---Contention of complainant about enhancement of penalty of death, was repelled in circumstances.

Muhammad Mumtaz Hussain and another v. Muhammad Arshad and 2 others 2001 PCr.LJ 225 and 2001 PCr.LJ 225 ref.

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

----S. 382-B---Penal Code (XLV of 1860), Ss.302/341/34---Section 382-B, benefit of---Duty of trial Court---Trial Court had neither extended benefit of S.382-B, Cr.P.C. to accused nor had applied judicial mind towards that aspect of the case---Trial Court, after considering circumstances of case, should decide whether discretion had to be exercised in favour of accused or not because consideration of S.382-B, Cr.P.C. was mandatory and its application was discretionary---Trial Court, in circumstances had committed an error by not recording reason to extend or not the benefit of S.382-B, Cr.P.C. to accused---In view of facts and surrounding circumstances of the case, accused was entitled to benefit of S.382-B, Cr.P.C.

Kh. Abdul Basit for Appellant.

Ch. Muhammad Ilyas for the Complainant.

Sardar Zaheer Babar Chughtai, P.P. for the State.

2005 P Cr. L J 1384

[Shariat Court (AJ&K)]

Before M. Reaz Akhtar Ch., CJ

THE STATE through Muhammad Afzal and others---Complainant/Appellants

Versus

WAHEED IQBAL and others---Respondents

Criminal Appeals Nos.33, 38 and Criminal Reference No.32 of 2004, decided on 24th January, 2005.

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

----S. 302---Appreciation of evidence---Minor contradictions---Effect---Minor contradictions and discrepancies in a murder case are quite natural, because every body wants to save his own life during such occurrence.

(b) Medical jurisprudence---

---Doctor's opinion---Individuals vary in their reaction to injury---Opinion of the doctor, therefore, is not definite which varies from man to man.

Parikh's Textbook of Medical Jurisprudence and Toxicology page 301 ref.

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

----Ss. 302/34, 337-A, 324 & 341---Appreciation of evidence---Presence of complainant on the spot could not be denied as he had sustained injuries during the occurrence---F.I.R. having been promptly lodged, no question for any concoction or false attribution could arise---Eye­witnesses who had no enmity with the accused were unanimous regarding place of occurrence, manner of occurrence and time of occurrence--Post-mortem report of the deceased and the medical report of the injured complainant had fully corroborated the ocular testimony---Mere relationship of the eye-witnesses with the deceased was no ground to discard their evidence in the absence of any proof of their enmity with the accused---Crime-empties secured from the place of occurrence, according to the report of the Fire-arm Expert, had been fired from the pistols recovered at the instance of the accused---Motive for the occurrence was proved---Path of the victims having been blocked by the accused at the time of incident, offence under S.341, P.P.C. was also proved against them---No reason was given by the lower Court for awarding lesser sentence of imprisonment for life to one accused who had a common intention with his co-accused to commit the murder of the deceased and was equally responsible for the same by playing an active role in the occurrence by virtue of S.34, P.P.C.---Sentence of imprisonment for life awarded to said accused was consequently enhanced to death---Convictions and other sentences of accused were maintained in circumstances---Accused were also convicted under S.341, P.P.C. and sentenced to undergo one month's R.I. thereunder---Appeals were disposed of accordingly.

Parikh's Textbook of Medical Jurisprudence and Toxicology page 301; 1975 PCr.LJ 44; 2004 PCr.LJ 584; PLD 1976 SC 53; PLD 1977 SC 259; PLD 1983 SC (AJK) 211; 1991 MLD 1676; 1977 SCMR 340; AIR 1958 SC 672; Haji Khan and 2 others v. The State and others 1991 PCr.LJ 2110; Haji. and others v. The State 1976 SCMR 20; Wall Muhammad and another v. The State PLD 1982 SC 55; Ghulam Qadir v. The State PLD 1960 SC (Pak.) 254; 1990 PCr.LJ 1067; 1986 PCr.LJ 2085; Khadim Hussain and another v. The State 1980 PCr.LJ 654; Bahar v. The Crown PLD 1954 FC 77; Hidayatyullah and another v. The St ate PLD 1971 Kar. 817 and Shamsher and another v. The State and others 1973 SC 69 ref.

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

----S. 154---Information in cognizable cases---F.I.R. being just a document for bringing the investigation agency into operation, is not a substantive piece of evidence---Non-mention of the details in the F.I.R., therefore, shall not make any difference.

PLD 1977 SC 259 ref.

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

----S. 302---Appreciation of evidence---Related witnesses---Principle---Mere relationship of the witnesses with the deceased is no ground to discard their evidence, unless and until their enmity with the accused is proved or it does not inspire confidence and is not of convincing quality.

PLD 1983 SC (AJK) 211 ref.

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

----S. 103--- Recovery witnesses---Not necessary that only respectable persons of the locality be cited as witnesses of the recovery---Most of the people of the present society being not ready to become a witness, police has no alternative but to cite other available witnesses.

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

---S. 302---Sentence---Court is bound to record reason for awarding lesser sentence---Normal sentence in a murder case is death and the Court while awarding the same has not to record any reason, but while awarding lesser sentence it has to record reason.

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

---S. 34---Vicarious liability---Principles of vicarious liability cannot be invoked unless and until common intention and object is proved.

1990 PCr.LJ 1067 and 1986 PCr.LJ 2085 ref.

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

----S. 34---Applicability of S.34, P.P.C.---Scope---Fundamental condition for attracting S.34, P.P.C. is that the accused should have common intention and should have participated in the crime in furtherance of their common intention.

Khadim Hussain and another v. The State 1980 PCr.LJ 654 ref.

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

----S. 34---Common intention---Inference of common intention may be drawn from the conduct of the assailants, their participation in the commission of the crime and from circumstances such as the character of the attack, nature of the injuries inflicted and the nature of the weapon used.

Bahar v. The Crown PLD 1954 FC 77; Hidayatullah and another v. The State PLD 1971 Kar. 817 and Shamsher and another v. The State and others 1973 SCMR 69 ref.

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

---S. 34---Common intention---Intention is a mental condition and is to be determined from the facts and surrounding circumstances of the case---Direct evidence in this respect cannot be expected in each case and in order to determine the common intention regard must be given to all the acts done by the accused.

Mazhar Iqbal and Ch. Jahandad Khan for Appellants/Respondents (in Criminal Reference No.32, Criminal Appeals Nos.33 and 38 of 2004).

Sardar Razzaq Khan, Addl. A.-G. for the State.