PCRLJ 2006 Judgments - Pakistan Legal Archive

Courts in this Volume

Federal Shariat Court
Karachi High Court Sindh
Labour Appellant Tribunal Balochistan
Lahore High Court Lahore
Peshawar High Court
Quetta High Court Balochistan
Shariat Court Azad Kashmir
Supreme Court Azad Kashmir

M. Shoaib Abbasi for the State.

Date of hearing: 29th September, 2004.

PCRLJ 2006 FEDERAL SHARIAT COURT 117 #

2006 P Cr. L J 117

[Federal Shariat Court]

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

NAZIR AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 115/1 of 2003, decided on 27th September, 2005.

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

--Ss. 5, 7 & 10---Penal Code (XLV of 1860), S.500---Appreciation of evidence---Allegation against accused was that during pendency of suit for dissolution of marriage filed by first wife of brother of accused against his brother, accused as a witness in said suit in his cross-examination had levelled allegation that complainant with whom brother of accused had solemnized second marriage, was pregnant before her marriage with his brother and that her character was "fictitious"---Complainant had asserted that allegations levelled by accused against her in his statement were false, baseless and calculated to bring bad name to her in the society---Complainant as her witness in her cross-examination had conceded that she was not informed by anybody about litigation pending between her husband and his first wife---Complainant had deposed that her husband had conveyed information about allegation made against her by accused in his statement in said suit---Complainant also admitted that at time of recording alleged statement of accused in said family case, she was not present in the Court---Husband of complainant during his cross-examination, also conceded that complainant was not present in the Court at the time of recording of impugned statement of accused and that it was he who had informed the complainant that his brother (accused) had levelled allegation against her---Assertion of complainant that accused had uttered offending words against her, was to be treated as mere hearsay, carrying little evidentiary value---Oral statement of brother of accused with regard to allegation of immorality against complainant before Trial Court could not be taken into consideration for resolution of controversy involved in the case, because a deposition, whether in a civil or criminal case, was required by law to be reduced into writing---Prosecution was duty bound to prove its case against accused beyond all shadow of doubt, which duty it failed to discharge---No legal evidence being available on record which could warrant conviction of accused, impugned judgment of Trial Court was not maintainable in law---Impugned judgment was set aside and accused was acquitted of charges against him.

Muhammad Ajmal Khan for Appellant.

Shakeel Ahmad for the Complainant.

Muhammad Sharif Janjua for the State.

Date of hearing: 27th September, 2005.

PCRLJ 2006 FEDERAL SHARIAT COURT 132 #

2006 P Cr. L J 132

[Federal Shariat Court]

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

MUHAMMAD ASHRAF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 122/I of 2003 linked with Criminal Murder Reference No. 14/i of 2003, decided on 27th September, 2005.

Penal Code (XLV of 1860) ---

----Ss. 302(b), 377 & 201---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)---Appreciation of evidence---Prosecution witness who furnished evidence of last seen, had neither any enmity with accused nor he had any motive to falsely implicate him---Statement of said witness was supported by statement of mother of deceased who had given five rupees note to deceased girl to. make purchases---Two prosecution witnesses had stated that they had seen accused on the way carrying gunny bag on carrier of his bicycle---Evidence of last seen and carrying of gunny bag by accused had inspired confidence because witnesses. did not make any attempt to improve or inflate incident---Witnesses had stated whatever had been witnessed by them and their evidence when appraised along with other pieces of evidence, had provided a strong link to prosecution case---Recovery of clothes worn by deceased at the time of her murder by accused was a strong corroborative piece of evidence---Recovery of bicycle which was used for carrying gunny bag containing dead body of deceased from house of accused and recovery of pair of sandals belonging to deceased, coupled with confessional statement of accused, had furnished a strong corroboration to prosecution case---Confessional statement of accused which was made by him voluntarily and without any external pressure or inducement and was recorded by Magistrate after fulfilling all legal requirements, was fully incriminating and totally inculpatory---Prosecution case was supported and strengthened by medical evidence---Apart from causing her death, young victim was subjected to rape and sodomy---Chemical Examiner's report showed that, swabs obtained contained semen---Credible corroboration had come on record through truthful and natural witnesses---Prosecution, in circumstances had proved guilt of accused beyond doubt---Conviction of accused, on all counts was unexceptionable and sustainable---Accused had committed a heinous rather abhorrent offence by killing a young girl after subjecting her to his lust---Accused was a grown up person who was well aware of offence committed by him---No mitigating or extenuating circumstances were available in favour of accused---Sentences awarded to accused were maintained---Sentence of death passed by Trial Court against accused was confirmed---Murder reference was answered in affirmative.

Aftab Ahmed Khan for Appellants.

M. Sharif Janjua for the State.

Date of hearing: 27th September, 2005.

PCRLJ 2006 FEDERAL SHARIAT COURT 171 #

2006 P Cr. L J 171

[Federal Shariat Court]

Before Saeed-ur-Rehman Farrukh, J

NOSHAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.81-L of 2004, decided on 1st April, 2005.

Penal Code (XLV of 1860)---

----S. 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Appreciation of evidence---Sentence, reduction in---Prosecution had succeeded in proving its case against accused beyond any shadow of doubt---Accused on his own showing, was not on inimical terms with complainant party---No explanation was forthcoming as to why complainant party would falsely implicate accused in the case---Statement of victim found due corroboration from the deposition of his father and other prosecution witness---Medical evidence furnished further supported the stance of victim---Plea of alibi raised by accused was not convincing---Trial Court, in circumstances had correctly convicted the accused---Accused, however was a youngster, aged less than 20 years at relevant time and his co-accused had already been dealt with by High Court leniently---Maintaining conviction of accused under both counts, his sentences were reduced from 10 years to 3-1/2 years' R.I. and amount of fine was also reduced from Rs.30,000 to 15,000 accordingly.

Muhammad Oazir Chughtai for Appellant.

Ms. Aneela Bano for the State.

Date of hearing: 1st April, 2005.

PCRLJ 2006 FEDERAL SHARIAT COURT 182 #

2006 P Cr. L J 182

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan, J

BAKHSHAL alias BASHAN alias BAKHSH ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.50/K of 2002, decided on 26th September, 2003.

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

----Ss. 342 & 364(2)---Examination of accused---Examination of accused under S.342, Cr.P.C., was intended to afford him full opportunity to explain all incriminating circumstances appearing in evidence against him---Affording such an opportunity was a must and accused had to be heard in detail to enable him to explain his position and lead any evidence in defence and also make statement on oath in disproof of allegation levelled against him if he would opt to do so---Provisions contained in S.364(2), Cr.P.C. were mandatory in nature and non-compliance of same was not a merely incurable irregularity, but an illegality.

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

----S. 364-A---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 18---Criminal Procedure Code (V of 1898), Ss-342 & 364(2)---Appreciation of evidence---Examination of accused---Non appending certificate---Statement of accused recorded under provisions of 5.342, Cr.P.C. was not recorded as required under provisions of S.364(2), Cr.P.C. because Trial Court had not appended necessary certificate---Trial Court, in circumstances had committed an illegality whereby proceedings of Trial Court stood vitiated---Conviction and sentence of accused were set aside and case was remanded to Trial Court for recording statement of accused under S.342, Cr.P.C. afresh as required under provisions of S.364(2), Cr.P.C., providing an opportunity to parties to lead any further evidence if so desired.

Ghulam Qadi: Jatoi for Appellant.

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

Date of hearing; 26th September, 2003.

PCRLJ 2006 FEDERAL SHARIAT COURT 235 #

2006 P Cr. L J 235

[Federal Shariat Court]

Before Ch. Ejaz Yousaf C.J.

RIAZ and others----Appellants

Versus

THE STATE----Respondent

Jail Criminal Appeals Nos.222/I and 223/I of 2005, decided on 15th November, 2005.

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

----Ss. 392 & 412---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss.17(3) & 20---Appreciation of evidence---Testimony of complainant, was not only confidence-inspiring, but it found corroboration from medical evidence as well---Confessional statements of accused were also in conformity with the same---Conviction could be recorded on basis of retracted confession alone, particularly against its maker, if same was found voluntary and true and corroboration thereof was sought for as a matter of prudence only---Magistrate had confirmed that he had recorded confessional statements of accused after satisfying himself that accused were confessing their guilt voluntarily and no evidence to the contrary on record was available---Confessional statements in question were rightly taken into account by Trial Court in recording convictions against accused---Identification of accused at the test, as well as in the Court, had lent further support to prosecution version---Conviction had not been recorded on the basis of solitary statement of complainant alone, as sufficient corroboratory evidence was available, but there was no rule that conviction could not be recorded on the basis of testimony of a single witness---Only requirement was that it should be reliable and confidence-inspiring---Complainant neither had any enmity with accused nor he had any motive to falsely implicate them, rather he himself was victim of the crime---Statement of complainant, in circumstances was rightly believed by Trial Court---Accused had contended that case was not of robbery, but was of extortion---Since offence of robbery was an aggravated form of theft or extortion, in all robbery cases there was either theft or extortion---Complainant was not only overpowered by accused, but was tied with a tree and vehicle in question was thereafter snatched from him and in doing so, force was applied---Case was that of robbery---Contention of accused was repelled in circumstances.

Dildar Hussain v. Muhammad Afzal alias Chala PLD 2004 SC 663; Gulistan and others v. The State 1995 SCMR 1789; Anil Phukan v. State of Asam 1993 SCMR 2236; Allah Bakhsh v. Shammi PLD 1980 SC 225; Rabnawaz and others v. The State 1991 PCr.LJ 826; Zulfiqar Ali alias Dittu v. The State 1991 PCr.LJ 1125; Khushi Muhammad and another v. The State 1984 PCr.LJ 1832; Vadivelu Thevar v. The State of Madras AIR 1957 SC 614; Muhammad Shafi and another v. The State PLD 1959 (W.P.) Kar. 648; Mojibur Rahman and others v. Bazlur Rahman Chowdhury 1970 PCr.LJ 49; Bilal Ahmad and 4 others v. The State PLD 1994 Lah. 141; Karmun and others v. Emperor AIR 1933 Lah. 407; Mahadeo Tukaram and others v. Crown AIR (37) 1950 Nag. 214 and Basu Domb and others v. State AIR 1959 Orissa 171 ref.

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

----S. 164---Qanun-e-Shahadat (10 of 1984), Art.43---Confession--- Conviction on basis of retracted confession---Conviction could be recorded on basis of retracted confession alone, particularly against its maker, if same was found voluntary and true and corroboration thereof was sought for as a matter of prudence only.

Khuda Bakhsh v. The State 2004 SCMR 331; Muhammad Gul and others v. The State 1991 SCMR 942; The State through A.-G., N.-W.F.P., Peshawar v. Waqar Ahmad 1992 SCMR 950; Wazir Khan v. The State 1989 SCMR 446; Muslim Shah v. The State PLD 2005 SC 168; Muhammad Ashraf v. The State 2001 PCr.LJ 412 and Emperor v. Lal Bakhsh AIR 1945 Lah. 43 ref.

Mrs. Tahira Khan Goraya for Appellants.

Muhammad Sharif Janjua for the State.

Date of hearing: 15th November, 2005.

PCRLJ 2006 FEDERAL SHARIAT COURT 257 #

2006 P Cr. L J 257

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, C.J.

MUHAMMAD AYUB----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.263/I of 2004, decided on 22nd October, 2004.

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

----S. 342---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10(3) & 18--- Basic object of S.342, Cr.P.C.---Examination of accused---Effect of non-examination---Chemical Examiner's report, - though was duly exhibited at the trial and it was also taken into account by Trial Court in recording conviction against accused, but, record was silent' as to whether same was put to accused in course of his statement recorded under S.342, Cr.P.C.---Compliance with the provision of S.342, Cr.P.C., in accordance with its terms, was essential and departure therefrom was not permissible, if some prejudice was shown to have been caused to accused---Examination of accused under S.342, Cr.P.C. was mandatory and not discretionary---If it was found by Trial Court that any circumstance appearing in evidence against accused was likely to contribute towards his conviction, then the Court would not be competent to take same into account without questioning him on that point---Object of examination of accused was to give him an opportunity of explaining the circumstances, which could tend to incriminate him or were likely to influence mind of Judge in arriving at a conclusion adverse to him---Examination of accused was not a mere formality, butte necessity---Impugned judgment of Trial Court was set aside and case was remanded for its decision afresh from stage of recording proper and legal statement of accused under S.342, Cr.P.C.

Muhammad Akram v. The State 2001 PCr.LJ 1300 and Liaquat Ali v. The State 2002 PCr.LJ 230 ref.

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

----Ss. 342 & 364---Examination of accused, nature and purpose of---Non-signing of statement by the accused---Effect---Section 342, Cr.P.C. dealing with examination of accused, had two parts: Under first part, the Court could put such questions to accused which could be deemed appropriate and power thereunder was without any clog of time and stage, whereas, under the second part, examination of accused, which as, of necessity, has to be made on close of prosecution evidence, was a must because object was to point out salient points appearing in evidence against him and ask for his explanation---Where accused was not questioned at all, or his attention, to an important piece of evidence, which had implicated him, was not invited, omission so made, would be fatal---Signing of statement under S.342, Cr.P.C. by accused was imperative as provisions contained in S.364(2), Cr.P.C. was mandatory in nature and character---Trial Judge, while recording statement of accused under S.342, Cr.P.C. under mandate of said provision of law, had to, of necessity, obtain signature of accused thereon and also to certify under his own hand, in the manner prescribed, that examination of accused was taken in his presence and hearing and that record contained full and true account of statement made by accused.

Munir Ahmad alias Munni v. The State 2001 SCMR 56; Asif Ali Zardari and another v. The State PLD 2001 SC 568; Rattan Singh v. State of H.P. AIR 1997 SC 768; Sharad Birdichand Sarda v. State of Maharashtra AIR 1984 SC 1622; State of Maharashtra v. Sukhdeo Singh 1992 Cr.LJ 3454 (SC); Muhammad Kalam and another v. The State 1988 PSC (Criminal) 1136; Gul Jahan v. The State 1988 MLD 288; Raees Khan v. The State 1991 PCr.LJ 617; Allah Rakhio and another v. The State 2001 PCr.LJ 1959; Wahid Bakhsh Rana v. The State 1989 PCr.LJ 1591; Dadan alias Allah Dad v. The State 2000 MLD 595; Mst. Sultana v. The State 1986 PCr.LJ 1723 and Muhammad Inayat v. The State 1983 PCr.LJ 469 ref.

Ch. Imtiaz Muhammad Khan for Appellant.

Sardar Ahmad Abid for the State.

Date of hearing: 22nd October, 2004.

PCRLJ 2006 FEDERAL SHARIAT COURT 304 #

2006 P Cr. L J 304

[Federal Shariat Court]

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

MUHAMMAD ISMAIL----Appellant

Versus

THE STATE----Respondent

Jail Criminal Appeal No.30/Q of 2002 (Linked with) Criminal Murder Reference No.I/Q of 2002, decided on 11th May, 2005.

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

----Ss. 302(b), 394 & 324---Appreciation of evidence---Accused was caught red-handed along with kalashnikov used in the commission of the offence---Presence of eye-witnesses at the scene of occurrence could not be doubted as they had also sustained bullet injuries, during the incident---Kalashnikov recovered from the possession of accused had matched with the crime-empties recovered from the spot---Chemical Examiner's report qua the blood-stained articles was positive---Prosecution witnesses had rightly identified the accused---Medical evidence had also corroborated the prosecution story---Eye-witnesses were independent witnesses and they had no motive for false implication of accused in the offence---No leniency was deserved by the accused who had committed cold blooded double murder---Convictions and sentences of accused were maintained in circumstances.

Ijaz alias Billa and 3 others v. The State 2002 SCMR 294 Sakhawat v. The State 2001 SCMR 244; Muhammad Fazal v. Ghulam Asghar and other PLD 2000 SC 12; Ch. M. Yousaf and another v. The State 1992 SCMR 983; Waris Ali alias Dulti and ,other v. The State 1999 SCMR 1469; Pervez and others v. The State 1998 PSC (Cr.) 875; Noor Muhammad v. The State 1999 SCMR 272; Mst. Bismillah and others v. M. Jabbar and others 1998 SCMR 862; Muhammad Sharif v. Muhammad Javed alias Jedda Tedi PLD 1976 SC 45; Muhammad Nasrullah v. The State 2003 SCMR 189; Muhammad Saleem v. The State PLD 2002 SC 558; Sher Dil and others v. The State SBLR 2003 FSC 19; Sattar alias Satti and another v The State and another PLD 2005 Kar. 151 and Syed Hamid Mukhtar Shah v. Muhammad ,Azam and 2 others 2005 SCMR 427 ref.

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

----S. 302(b)---Sentence---Normal sentence of death to be awarded on proof of the charge---Where the occurrence resulting in a murder had taken place at the spur of the moment and even where only one shot was fired and the same had not been repeated, the only sentence deserved by the accused was the normal punishment of death prescribed for the offence.

Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427 ref.

Fazal-ur-Rehman Rana for Appellant.

Muhammad Shoaib Abbasi for the State.

Date of hearing: 11th May; 2005.

PCRLJ 2006 FEDERAL SHARIAT COURT 329 #

2006 P Cr. L J 329

[Federal Shariat Court]

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

MUZAFFAR ALI alias JAFFAR and 3 others----Appellants

Versus

THE STATE----Respondent

Jail Criminal Appeal No.223/I of 2000, decided on 19th September, 2005.

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

----Ss. 324, 394 & 460---Appreciation of evidence---F.I.R. was promptly lodged with the description of accused and the specific role attributed to each of them---Eye witnesses had correctly identified the accused in the identification test and also at the trial---Ocular testimony was corroborated by the evidence of recovery of the robbed property from the possession of accused as well as by medical evidence according to which both the eye-witnesses and the deceased persons had sustained grievous injuries---Post-mortem examination of both the deceased having not been conducted, it could not be proved that the injuries sustained by them during the occurrence had ultimately caused their death, but it was certain that the injuries caused by the accused to the deceased persons and to the eye-witness were grievous in nature---Sentences of imprisonment awarded to accused had been specifically ordered by Trial Court to run consecutively which though appeared to be excessive, yet keeping in view the fact that two persons were killed and injuries were caused to them in a brutal manner by not only firing at their heads but their eyes were also pricked and the eye-witness was fired in the abdomen who luckily survived, their sentences were not only just and proper but fully commensurate with the gravity of the offence as well---Trial Court was legally competent to make the sentences on all counts to run consecutively, but because all the offences being compound offences certain parts thereof overlapped each other so far as infliction of punishment thereunder was concerned---Convictions and sentences recorded against the accused under Ss.324, 394 & 460, P.P.C. were maintained in circumstances, but their sentences under Ss.324 & 460, P.P.C. were directed to run concurrently inter se and with their sentence under S.394, P.P.C. as well---Appeal was dismissed accordingly with the said modification.

Javed v. The State 1985 SCMR 157; Muhammad Khan v. The State 1986 SCMR 157; Muhammad Ittifaq v. The State 1986 SCMR 1627 and Khani Zaman and another v. The State 1987 SCMR 1382 ref.

Bashir and 3 others v. The State PLD 1991 SC 1145 rel.

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

----S. 35(2), proviso (a)---Penal Code (XLV of 1860), S.57---Sentence in case of conviction of several offences at one trial---Maximum term of punishment---Proviso (a) to subsection (2) of S.35, Cr.P.C. does not apply to the sentences awarded by the Sessions Judge in original trial, as its application was limited to the trial of cases by the Magistrates as well as Assistant Sessions Judges, wherever in existence, therefore, except the case in which the sentence of death is commuted under an executive order, the sentence of life imprisonment unless ordered to run concurrently under subsection (1) of S.35, Cr.P.C., will run consecutively in view of its quantification in terms of order under S.57, P.P.C.

Javed v. The State 1985 SCMR 157; Muhammad Khan v. The State 1986 SCMR 157; Muhammad Ittifaq v. The State s1986 SCMR 1627 and Khani Zaman and another v. The State 1987 SCMR 1382 ref.

Bashir and 3 others v. The State PLD 1991 SC 1145 rel.

Ms. Gazala Shereen for Appellants.

Fazal-ur-Rehman Rana for the State.

Date of hearing: 19th September, 2005.

2006 P Cr. L J 372

[Federal Shariat Court]

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

ABDUL JABBAR----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.282/I, Criminal Murder Reference No.12/I and Criminal Revision No.39/I of 2002, decided on 27th October, 2005.

(a) Criminal trial---

---Witness---Stock witness---Witness cannot be treated or labelled as stock-witness unless it is shown that he habitually appears as a witness merely at the behest of the police.

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

---S. 302(b)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)---Appreciation of evidence---No eye-witness of the occurrence was available---Prosecution case was based only on circumstantial evidence---Both the witnesses of extra-judicial confession had made consistent and natural statements and their conduct also inspired confidence---Evidence of extra-judicial confession made by accused was strongly corroborated by the incriminating recoveries especially the locket and chain belonging to the accused from near the dead body during the first spot inspection and the medical evidence---Accused had been seen entering the "Jawar" crop, the place of occurrence, which was of man's height and coming out from there confused and perplexed by the witnesses who had also witnessed the accused as well as the victim girl near the said "Jawar" field soon before the occurrence---Evidence of the said witnesses was trustworthy and although the same could not be strictly treated as evidence of last-seen yet it had lent support to the prosecution case by adding a circumstance---Accused, thus, was proved to have committed rape with the victim girl in the first instance and to have committed her murder thereafter---Convictions and sentences of accused were upheld in circumstances.

Muhammad Zamurrad and 2 others v. The State PLD 1977 Lah. 136; Rasab Khan v. The State 2003 SCMR 1385; Zia-ur-Rehman v. The State 2000 SCMR 528; Sarfraz Khan v. The State 1996 SCMR 188; Muhammad Shahbaz v. The State PLD 2002 Lah. 425 and Muhammad Ayyub alias Nikka v. The State PLD 1983 SC 27 ref.

----S. 164---Confession---Extra-judicial confession---Corroboration---Principles---Evidence of extra-judicial confession requires strict scrutiny---Reliable corroborative evidence should be looked for in case of retracted extra-judicial confession.

Rasab Khan v. The State 2003 SCMR 1385; Zia-ur-Rehman v. The State 2000 SCMR 528 and Sarfraz Khan v. The State 1996 SCMR 188 ref.

Malik Rab Nawaz Noon for Appellant (in Criminal Appeal No.282/I and Criminal Murder Reference No.12/I of 2002).

M. Sharif Janjua for the State (in Criminal Appeal No.282/I and Criminal Murder Reference No.12/I of 2002).

M. Siddique Awan, Syed Tahir Hussain Bukhari and Manan Ali Khan for Petitioner (in Criminal Revision No.39/I of 2002).

Date of hearing: 4th October, 2005.

PCRLJ 2006 FEDERAL SHARIAT COURT 387 #

2006 P Cr. L J 387

[Federal Shariat Court]

Before S.A. Rabbani, J

BABAR and 3 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.221/I of 2005, decided on 2nd November, 2005.

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

----S. 10(2)---Appreciation of evidence---Police officials, credibility of---Previous animosity with the police witnesses not necessary to, discard their evidence---Police officials are as good witnesses as any other witness in the absence of any animosity alleged against them, but despite this law there remains a duty on the Trial Court to examine the evidence of police officials carefully and skeptically when the same is not corroborated by independent evidence---Man cannot be made moral through law and it is not necessary that there should be a previous animosity with the police witnesses to discard their evidence.

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

---S. 10(2)---Appreciation of evidence---Trial Court had not mentioned the points for determination in the judgment as required by S.367, Cr.P.C.---Prosecution evidence lacked veracity for proof of the incredible prosecution story---Medical evidence was inconsequential in the absence of credible direct evidence, which it was to corroborate---No .record of the hotel was produced to establish that the accused were staying there---Evidence placed on record could not be deemed sufficient by a man of ordinary prudence for proof of the charge---Accused were acquitted in circumstances.

---S. 367---Contents of judgment---Unnecessary lengthy judgment---Effect---Concept elucidated.

Malik Rab Nawaz Noon for Appellants.

M. Sharif Janjua for the State.

Date of hearing: 2nd November, 2005.

PCRLJ 2006 FEDERAL SHARIAT COURT 396 #

2006 P Cr. L J 396

[Federal Shariat Court]

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

YAR MUHAMMAD----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.61/P of 2004, decided on 17th May, 2005.

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

----S. 14---Penal Code (XLV of 1860), Ss.380 & 457---Appreciation of evidence---Prosecution case was based on the confessional statement of the accused and the incriminating recoveries effected from him---Confession made by accused was found to be voluntary and not an extracted one and the same had been rightly taken into consideration by the Trial Court in recording his conviction---Recovery of a locket and two finger rings, subsequently identified as robbed property, along with a sum of Rs.50,000 from the possession of accused, had rendered sufficient corroboration to his confessional statement---Trial Court was competent to convict the accused under Ss.457, P.P.C. and 380, P.P.C. and pass separate sentences thereunder, however the same were directed to run concurrently---Appeal filed by accused was dismissed in circumstances.

Khuda Bakhsh v. The State 2004 SCMR 331; Muhammad Gul and others v. The State 1991 SCMR 942; The State through A.-G. N.-W.F.P., Peshawar v. Waqar Ahmad 1992 SCMR 950; Wazir Khan v. The State PLD (sic) SC 168; Muslim Shah v. The State PLD (sic) SC 168; Muhammad Ashraf v. The State 2001 PCr.LJ 412; Emperor v. Lal Bakhsh AIR 1945 Lah. 43; Kanchan Molla v. Emperor (1925) 12 AIR Cal. 1015=88 IC 997=26 CrLJ 1253=41 CLJ 563; Bajo Singh v. Emperor (1929) 16 AIR Pat. 263=1929 Cr.C 23=120 IC 311=31CrLJ 88=8 Pat. 274=10 PLT 353; Mt. Champa Pasin v. Emperor (1928) 15 AIR Pat. 326=108 IC 81=29 CrLJ 325; Paltu Singh v. Emperor (1918) 5 AIR Pat. 227=48 IC 677=20 CrLJ 37=3 Pat. LJ 641; Shaikh Idris and others v. Emperor AIR 1939 Pat. 349 ref.

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

----S. 14---Penal Code (XLV of 1860), Ss.380 & 457---Criminal Procedure Code (V of 1898), S.164---Appreciation of evidence---Confession, corroboration of---Conviction on confession---Principles---Corroboration of confession, retracted or un-retracted, is sought as a matter of prudence only, otherwise legally the confession, if found voluntary and true, can be made the sole basis for conviction, particularly against its maker.

----Ss. 457 & 380---Criminal Procedure Code (V of 1898), S.35---Separate conviction and sentence under S.457, P.P.C. and S.380, P.P.C. at one trial is lawful---Court is competent to convict the accused under Ss.457 and 380, P.P.C. at one trial and pass separate sentences for these offences.

Kanchan Molla v. Emperor (1925) 12 AIR Cal. 1015=88 IC 997=26 CrLJ 1253=41 CLJ 563; Bajo Singh v. Emperor (1929) 16 AIR Pat. 263=1929 Cr.0 23=120 IC 311=31 CrLJ 88=8 Pat. 274=10 PLT 353; Mt. Champa Pasin v. Emperor (1928) 15 AIR Pat. 326=108 IC 81=29 CrLJ 325; Paltu Singh v. Emperor (1918) 5 AIR Pat. 227=48 IC 677=20 CrLJ 37=3 Pat. LJ 641; Shaikh Idris and others v. Emperor AIR 1939 Pat. 349 ref.

Atlas Khan for Appellant.

Muhammad Ali Saif for the State.

Date of hearing: 17th May, 2005.

PCRLJ 2006 FEDERAL SHARIAT COURT 415 #

2006 P Cr. L J 415

[Federal Shariat Court]

Before S.A. Rabbani, J

AAMIR MUSHTAQ and another----Appellants

Versus

THE STATE----Respondent

Jail Criminal Appeal No.234/I of 2005, decided on 26th October, 2005.

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

----S. 10(2)---Appreciation of evidence---No medical evidence was available on record to prove commission of Zina by the accused---Evidence of six police witnesses also did not disclose any such act on the part of accused---Even the complainant, father of female accused, did not say that the accused had committed Zina, although he had lodged the F.I.R. after many days of the alleged enticement of his daughter---Father of the prosecution witness in whose house the female accused was working as maid servant, no doubt, had stated to have seen the two accused committing Zina, but admittedly he himself was arrested in the case and he could not explain as to how the male accused got access in his house to commit Zina there---Trial Court had failed to analyse the evidence meticulously and had convicted the accused merely on assumptions---Charge against the accused under S.10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was not proved by the evidence placed on record---Accused were acquitted in circumstances.

M. Saliheen Mughal for Appellants.

Mahr Sardar Ahmad Abid for the State.

Date of hearing: 26th October, 2005.

PCRLJ 2006 FEDERAL SHARIAT COURT 422 #

2006 P Cr. L J 422

[Federal Shariat Court]

Before S.A. Rabbani, J

SOOMAR KHAN----Petitioner

Versus

THE STATE and another----Respondents

Criminal Revision No.6/K of 2003, decided on 2nd January, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 200 & 439---Direct complaint---Preliminary inquiry---Sessions Judge, sent direct complaint against S.H.O., to the Magistrate concerned for preliminary inquiry---Magistrate, after holding inquiry, submitted report to Sessions Judge to the effect that prima facie a case was made out for registration, but Sessions Judge took a converse view and dismissed the direct complaint---Complainant filed revision against order of Sessions Judge---Validity---Court at the stage of preliminary inquiry, had to see whether evidence placed on record had, prima facie, made out a case, for registration---Inquiry report, in the present case, had shown that sufficient evidence was brought on record which prima facie had made out a case to be registered---Order challenged in revision did not give adequate reasons to reject finding of Magistrate who had conducted preliminary inquiry---Impugned order, in circumstances could not be maintained---Case should have been registered in view of findings in preliminary inquiry.

Raja Sher Muhammad with Raja Muhammad Basharat for Petitioner.

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

Date of hearing: 2nd January, 2006.

PCRLJ 2006 FEDERAL SHARIAT COURT 427 #

2006 P Cr. L J 427

[Federal Shariat Court]

Before Ch. Ejaz Yousaf C.J.

DANISH alias SUNNY----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.11/I of 2003, decided on 6th May, 2005.

Penal Code (XLV of 1860)---

----S. 377---Appreciation of evidence---Statement of the victim of sodomy was duly corroborated by medical evidence as well as by his father and another witness to whom he had narrated the entire incident---Accused, thus, had been rightly convicted by the Trial Court after conducting his trial under the Juvenile Justice System Ordinance, 2000--Accused had undergone his sentence of two years' R.I. in jail as well as on probation and his bail bonds were discharged in circumstances.

M. Saliheen Mughal for Appellant.

Muhammad Sharif Janjua, for the State.

Date of hearing: 6th May, 2005.

PCRLJ 2006 FEDERAL SHARIAT COURT 440 #

2006 P Cr. L J 440

[Federal Shariat Court]

Before Zafar Pasha Chaudhary, J

YASIN and another----Appellants

Versus

THE STATE----Respondent

Jail Criminal Appeal No.36/I of 2005, decided on 24th March, 2005.

Penal Code (XLV of 1860)---

----Ss. 394 & 337-F(ii)---Appreciation of evidence---Complainant had received a fire-arm injury during the course of robbery of his taxi at the hands of accused---Medical evidence was further supplemented by the recovery of the crime-weapon---Statements made by the complainant and his supporting witnesses were consistent and natural---Prosecution story was quite convincing and did not in any manner appear to be a fabrication---Impugned judgment was based on cogent reasons and did not suffer from any illegality or infirmity---Convictions and sentences of accused were maintained in circumstances.

Saliheen Mughal for Appellants.

M. Shoaib Abbasi for the State.

Date of hearing: 24th March, 2005.

PCRLJ 2006 FEDERAL SHARIAT COURT 449 #

2006 P Cr. L J 449

[Federal Shariat Court]

Before Saeed-ur-Rehman Farrukh, J

GHULAM RASOOL alias NANHA and another----Appellants

Versus

THE STATE----Respondent

Jail Criminal Appeal No.122-I of 2005, decided on 12th September, 2005.

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

---Ss. 16 & 10(3)---Appreciation of evidence---Testimonies of the material witnesses including the complainant and the alleged abductee did not inspire confidence---Prosecution witness closely related to the complainant party who had vainly tried to hide his relationship and had been exposed to be a liar, had been brought forward by the prosecution solely with a view to support its version of abduction of the abductee by the accused---Alleged abductee had also levelled reckless and false allegation of not only Zina-bil-Jabr but also of torture against the accused which stood contradicted by medical evidence---Neither the fire-arms allegedly wielded by the accused at the 'time of abduction of the woman nor the car in which she was allegedly abducted, were recovered during investigation---Abductee, thus, was never abducted and the question of her being subjected to rape and torture did not arise at all---Complainant had set up the present case in collaboration with his wife and another relative by way of counter-blast to an abduction case having been registered earlier against the wife of the present complainant and others---Accused were acquitted in circumstances.

Muhammad Saliheen Mughal for Appellants.

Shafquat Munir Malik, A.A.-G. for the State.

Date of hearing: 12th September, 2005.

PCRLJ 2006 FEDERAL SHARIAT COURT 460 #

2006 P Cr. L J 460

[Federal Shariat Court]

Before S.A. Rabbani, J

MUHAMMAD HASSAN----Appellant

Versus

THE STATE----Respondent

Jail Criminal Appeal No.48-K of 2004, decided on 2nd January, 2006.

Penal Code (XLV of 1860)---

----S. 366---Appreciation of evidence---Prosecution evidence, according to Assistant Advocate-General, amply proved that there was a fight between the parties and conviction of accused under S.366, P.P.C. was not justifiable---No independent evidence was available on record to establish the charge of abduction, nor it was proved as to which party was the aggressor---Injury sustained by the injured prosecution witness was attributed to the absconding accused and not to the present accused---One of the alleged accused persons had lost his life as a result of the fight and it was not known whether anybody was tried for killing him---Benefit of doubt was extended to the accused and he was acquitted in circumstances.

Qazi Wali Muhammad for Appellant.

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

Date of hearing: 2nd January, 2006.

PCRLJ 2006 FEDERAL SHARIAT COURT 464 #

2006 P Cr. L J 464

[Federal Shariat Court]

Before Zafar Pasha Chaudhary, J

GHULAM MUSTAFA----Appellant

Versus

THE STATE----Respondent

Jail Criminal Appeal No.187/I of 2005, decided on 1st November, 2005.

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

----S. 10(2)---Appreciation of evidence---Statement of the victim girl was supported by medical evidence as well as by the complainant and other prosecution witnesses---Defence plea taken by accused had no substance---Prosecutrix on account of her conduct and behaviour throughout appeared to be a consenting party and willing partner---Conviction of accused was maintained, but his sentence of nine years' R.I. was reduced to five years' R.I. in circumstances.

Saliheen Mughal for Appellant.

Anees Muhammad for the State.

Date of hearing: 1st November, 2005.

PCRLJ 2006 FEDERAL SHARIAT COURT 469 #

2006 P Cr. L J 469

[Federal Shariat Court]

Before S.A. Rabbani, J

ALLIED ENGINEERING AND SERVICES LTD.----petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.64-K of 2004 and Criminal Revision No.14-K 2004, decided on 21st March, 2005.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Penal Code (XLV of 1860), S.392---Custody of vehicle on Superdari--Condition binding the new owner on the same Superdari terms not justified---Petitioner had purchased the car in question from a Leasing Company which had been snatched from him by somebody---After its recovery the car was given on Superdari by the Court to the petitioner, who during this period had paid all instalments and the car stood transferred and registered in his name---Petitioner wanted to sell the car and the Court vide the impugned order granted him such permission subject to the condition that new owner should appear before the Court and bind himself to produce the said car on the same terms and conditions---Admittedly, no case was pending before the Court in respect of the said car requiring its production before it and the imposed aforesaid condition, therefore, was not justified---Such condition imposed through the impugned order was consequently deleted---Revision petition was accepted accordingly.

Mehmood A. Qureshi for Petitioner.

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

PCRLJ 2006 FEDERAL SHARIAT COURT 600 #

2006 P Cr. L J 600

[Federal Shariat Court]

Before Saeed-ur-Rehman Farrukh, J

MUREED HUSSAIN and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.92/L of 2005, decided on 5th December, 2005.

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

----S. 10(2)---Appreciation of evidence---Bitter background of enmity existed between complainant and accused---Both accused were living together as a married couple for the last 13 years and a child had been born out of said relationship---Both had entered into matrimonial ties with the bona fide belief of being legally entitled to do so---No positive proof was produced by prosecution to the effect that accused had not entered into marriage inter se in a bona fide manner or that they were wilfully indulging in Zina---Question of conviction of accused under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hardly arose, in circumstances---One could not also lose sight of the fact either, that impugned judgment, had stigmatized the child born out of marital relationship of accused persons---Islam leaned heavily inn favour of legitimacy of a child, but that aspect of the matter was completely glossed over by the Trial Court---Federal Shariat Court accepting appeal, set aside impugned judgment of the Trial Court and acquitted accused.

Nazeeran v. State NLR 1988 SD 522 and Allah Ditta and others v. The State PLD 1989 SC 744 ref.

M. Ramzan Khalid Joyia for Appellants.

Shahzad Hassan for the State.

Date of hearing: 5th December, 2005.

PCRLJ 2006 FEDERAL SHARIAT COURT 619 #

2006 P Cr. L J 619

[Federal Shariat Court]

Before Zafar Pasha Chaudhary, J

ZAKIR HUSSAIN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.198/L of 2004, decided on 24th November, 2005.

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

---S. 10(3)---Appreciation of evidence---Delay of about one week in lodging F.I.R. had not been explained, which had indicated that alleged occurrence might have been taken place with consent of alleged victim---Fact that neither any mark of violence was observed on person of female nor her clothes were torn, had left no doubt to believe that alleged victim was a willing and consenting partner---Offence against accused, in circumstances would fall under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and not under S.10(3) thereof---Conviction of accused, in circumstances, was altered from S.10(3) to S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Accused was sentenced to 10 years R.I. with thirty stripes---Sentence of stripes being violative of `Abolition of Whipping Act, 1996', had been set aside and as accused had been convicted under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, he was sentenced to two years R.I.---Sentence of fine being mandatory under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, accused was sentenced to pay fine of 8.10,000 or in default to suffer six months S.I.

Ch. Salamat Ali Haideri for Appellant.

Raja Akhtar Nawaz for the State.

Date of hearing: 24th November, 2005.

PCRLJ 2006 FEDERAL SHARIAT COURT 631 #

2006 P Cr. L J 631

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, CJ

MUHAMMAD AYUB BHATTI and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.238/L and 242/L of 2005, decided on 16th February, 2006.

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

---Ss. 10(3) & 16---Criminal Procedure Code (V of 1898), Ss.236, 237 & 238---Appreciation of evidence---Charging accused with one offence and convicting in another---Accused persons were convicted and sentenced under Ss.10(3) and 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Accused persons were charged under S. 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and were not charged under S.10(3) of said Ordinance, but despite that they were convicted and sentenced under both said sections---Person under S.237 Cr.P.C. though charged with one offence, could be convicted of another but application of S.237, Cr.P.C. was limited to those cases only which fell within provisions of' Ss.236 & 238, Cr.P.C.---Since accused persons were not charged under S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, which was a graver offence in relation to S.16 of the Ordinance and thereunder entirely different facts were required to be proved, conviction and sentences recorded against accused under S.10(3) of the Ordinance, could not sustain---Impugned order was set aside and case was remanded to the Trial Court to decide afresh in accordance with law.

Pir Imtiaz and another v. The State 2005 PCr.LJ 721; 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.

Rai Muhammad Nawaz Kharal for Appellant (in Appeal No.238/L of 2005).

Muhammad Irfan Malik for Appellants (in Criminal Appeal No.242/L of 2005).

Mehr Sardar Ahmad Abid for the State.

Date of hearing: 16th February, 2006.

PCRLJ 2006 FEDERAL SHARIAT COURT 662 #

2006 P Cr. L J 662

[Federal Shariat Court]

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

BASHIR AHMAD and others----Appellants

Versus

THE STATE and others----Respondents

Criminal Appeals Nos.29/L, 54/L and 39/L of 2004, decided on 25th November, 2005.

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

----Ss. 316, 338-A & 109---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Appreciation of evidence---Prosecution case rested on dying declaration, Medical evidence, Chemical Examiner's report and Pathologist's report---Dying declaration found sufficient corroboration from other evidence, especially that of lady doctor who after exhumation, had conducted post-mortem on dead body of deceased and from Chemical Examiner's report---Dying declaration was alleged to have been made to prosecution witness who was mother of the deceased---Defence had neither disputed presence of mother of deceased in the house wherein deceased breathed her last nor the fact that she met deceased prior to her death, had been challenged---Mother of deceased could not be termed as an interested witness, because interested witness was one who had his own motive to falsely implicate accused, was partisan, biased or prejudiced and predisposed towards a party and prompted and swayed away by a cause against accused, but nothing of the sort had been brought on record against said witness---Even otherwise relationship, in itself, was not a yardstick or standard for discarding evidence which otherwise was trustworthy and in a case of a single accused, relatives of deceased would rarely replace or spare culprit actually responsible for the crime---Alleged delay in lodging F.I.R., had satisfactorily been explained---Mother of deceased having herself seen accused committing Zina with deceased, it could not be said that it was unwitnessed occurrence---Involvement of female co-accused who carried out mechanical abortion of deceased, could not have been ruled out---Accused, in circumstances were rightly convicted and sentenced.

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

----Art. 46---Dying declaration-Admissibility-Requirements-Dying declaration which was statement of fact by the victim concerning cause and circumstances of homicide, was admissible as a relevant piece of evidence under Art.46 of Qanun-e-Shahadat, 1984---Exception to the said general rule was that hearsay evidence was not admissible and principle of that exception partially rested on the awful situation and distressing condition of dying person; which was considered to be as powerful over his conscience as the obligation of an oath and partially on the assumption; that the person on the verge of next world; when every motive to falsehood was silenced, would hardly involve an innocent person---In order to test reliability of the dying declaration certain factors such as whether witness testifying dying declaration himself had an opportunity to come across deceased and was capable to recapitulate correctly what was narrated to him; whether narration of deceased was free from prompting from any quarter; whether maker had an opportunity to himself sec and had correctly recognized the assailant; whether maker had the physical capacity to make dying declaration; whether it related to the cause of death or circumstances culminating therein; whether it was influenced; whether it was made to the person whose presence near deceased, at the alleged time and place, was possible; and whether at all it rang true, could be taken into account---Dying declaration once proved through reliable evidence, would become substantive evidence itself and could be made sole basis for conviction and corroboration thereof was sought for as a matter of prudence only.

Zafar Iqbal alias Shahid v. The State PLD 2004 SC 367; laved Khan v. The State 2002 PCr.LJ 1798; Farman Ullah v. Qadeem Khan and others 2001 SCMR 1474; Zarif Khan v. The State 1977 SC 612; Ashiq v. The State 1970 PCr.LJ 373; Tawaib Khan and another v. The State PLD 1970 SC 13 and Abdul Raziq v. The State PLD 1965 SC 151 ref.

----Ss. 300 & 315---"Qatl-i-Amd" and "Qatl-i-Shibh-i-Amd"---Distinction---Main distinguishing factor between "Qatl-i-Amd" and ":Qatl Shibh-i-Amd" was that in case of Qatl-i-Amd, intention of assailant must be to cause death or such bodily injury which, in the ordinary course of nature, was 'likely to cause death'; whereas in case of Qatl-i-Shibh-i-Amd, the intention should be to cause such harm to the body or mind of the person which in ordinary course of nature was 'not likely to cause death'---In case of 'Qatl-i-Shibh-i-Amd' "intention to cause death or cause such bodily injury which in the ordinary course of nature, was likely to cause death", must be non-existent.

Muhammad Din and others v. The State and others 2005 SCMR 1756; Noor Muhammad v. The State and another 2005 SCMR 1958; Sher Dil v. The State and another 2003 SD 35; Farmanullah v. Qadeem Khan and another 2001 SCMR 1474; Sarfraz alias Sapi and 2 others v. The State 2000 SCMR 1758; Abdul Ghafoor v. The State 2000 SCMR 919; Muhammad Sarwar v. The State 1999 SCMR 2428; Muhammad Ashraf v. Tahir alias Billo and another 2005 SCMR 724; Zahoor Ahmad v. The State 1995 SCMR 1338; Ajaib alias Ajba and others v. The State 1994 SCMR 1479; Said Bahadur Shah and others v. The State 2000 PCr.LJ 850; Mulazam Hussain v. The State 1998 SCMR 1206; Mehboob Ahmad v. The State 1999 SCMR 1102; Zafran Bibi v. The State 2003 SD 352; Zar Bahadur v. The State 1978 SCMR 136; Abdul Ghaffar and another v. The State 1987 PCr.LJ 2127; Mubarak Ali and another v. The State PLD 1984 FSC 55 and Saleem Khan and others v. The State and others 2001 PCr.LJ 503 ref.

(d) Criminal trial----

---Interested witness---Interested witness was one who had his own motive to falsely implicate accused, was partisan, biased or prejudiced and predisposed towards a party and prompted and swayed away by a cause against accused.

Muhammad Inamullah Khan for Appellant (in Criminal Appeal No.29-L of 2004).

Muhammad Arshad Khan for Appellant (in Criminal Appeal No.54-L of 2004).

Shahid Qayyum for Appellant (in Criminal Appeal No.39-L of 2004).

Shawar Khilji for the State.

Date of hearing: 25th November, 2005.

PCRLJ 2006 FEDERAL SHARIAT COURT 674 #

2006 P Cr. L J 674

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, CJ

Mst. JAMILA JAN----Appellant

Versus

THE STATE----Respondent

Jail Criminal Appeal No.105/I and Criminal Appeal No.113/I of 2001, decided on 20th December, 2005.

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

----S. 10(2), (3)---Appreciation of evidence---F.I.R. in the case though was lodged with considerable delay and some discrepancy was available with regard to the timing of occurrence, but said delay was duly explained in F.I.R.---Even otherwise in cases of Zina, delay in lodging report, would not necessarily mean that complaint was false or female was a consenting party---Hesitation in reporting such-like eases was quite natural because in the western society even, where standard of education was higher, women were conscious of their rights and society itself was much advanced, delay in reporting such-like cases was a common phenomenon, rather a large number of cases remained unreported-,-F.I.R., showed that since male accused, being a neighbour, had threatened complainant for dire consequences, report could not be lodged earlier---In absence of evidence to the contrary, it was not safe and proper for the Trial Court to straightaway charge complainant girl for Zina-bil-Raza---Since complainant at the trial had denied that Zina had been committed with her on different occasions, in all several times, stating that she was subjected to Zina-bil-Jabr only once and that too, on gun-point, in absence of evidence to the contrary, there was no occasion to disbelieve her---Allegation levelled by complainant in her statement on oath, at the Trial that facts of the case were twisted by the police, appeared to have substance---When a male accused was charged by a female for Zina-bil-Jabr, then notwithstanding the delay, pregnancy or any other reason, female accused, should not be, in the first instance, charged under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 for Zina-bil-Raza unless material/evidence was available on fecord; instead, case should be proceeded with as per allegation and male accused should be charged accordingly thereby affording opportunity to complainant to substantiate the charge---Since complainant female had categorically pleaded that she was subjected to Zina-bil-Jabr and her statement found support from other evidence, possibility could not be ruled out that she was threatened by male accused who was residing in her neighbourhood---Impugned judgment passed by the Trial Court was set aside and case was remanded to the Trial Court for its trial and decision afresh in accordance, with law.

Mohsin Akhtar Kiyani for Appellant (in Jail Criminal Appeal No.105/I of 2001).

Munir Elahi Qureshi for Appellant (in Criminal Appeal No.113/I of 2001).

Muhammad Sharif Janjua for the State and Shafqat Munir Malik as amicus curiae

Date of hearing: 7th June, 2005.

PCRLJ 2006 FEDERAL SHARIAT COURT 694 #

2006 P Cr. L J 694

[Federal Shariat Court]

Before Zafar Pasha Chaudhary, J

RIAZ AHMAD----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.366/L of 2004, decided on 14th December, 2005.

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

----Arts. 46 & 26---Criminal Procedure Code (V of 1898), S.161---Statement of relevant facts by person who was dead or could not be found---Admissibility in evidence---Evidence of a person who could not be found or available, could be treated as evidence, but same must fulfil one of the eight conditions laid down under Art.46 of Qanun-e-Shahadat, 1984---Said statement must relate to the cause of death; or should have been made in course of business; or should be against the interest of maker; or related to information as to public right; or related to existence of relationship; or was made in will; or in any document relating to any transaction as mentioned under Art.26 of Qanun-e-Shahadat, 1984; or was made by several persons and expressed feelings relevant to the matter in question---In absence of any of said conditions or circumstances, statement under S.161, Cr.P.C. before the police, could not be admitted in evidence against accused.

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

----Ss. 10 & 16---Appreciation of evidence---Even if victim girl could not be examined as a witness because she was dead, prosecution evidence was sufficient to prove beyond doubt that accused in fact had committed offence alleged against him--Complainant, who was father of deceased victim girl and other prosecution witness who was brother of deceased, were absolutely natural witnesses and their presence in the house at the relevant time of occurrence could not be denied or doubted---Both said witnesses themselves saw accused committing the rape of victim girl and their statement was fully supported by Medical evidence---Medical evidence was further supplemented and strengthened by the report of Chemical Examiner whereby vaginal swabs obtained from the victim were found to be stained with semen---Victim girl undoubtedly was an unmarried girl---Accused would have committed offence because previous incident in between the parties with regard to abduction of another female was manifestly supportive of prosecution version---Victim girl though had committed suicide and her statement before the police could not be strictly admissible in evidence, but it did provide a circumstance in favour of prosecution---Was inconceivable that in such circumstances, complainant or witnesses .would have spared or exonerated the real culprit and would have falsely implicated accused---Victim girl could not have been produced as witness---Victim, in case of Zina-bil-Jabr, of course was quite an important witness, but in the present case there was direct evidence of two eye-witnesses of occurrence---Prosecution, in circumstances having successfully proved its case against accused, his conviction recorded by the Trial Court, was upheld, but imposition of fine on accused could not be maintained because same was not maintainable under S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Fine was converted to compensation which would be paid to complainant, who was father of deceased victim girli as compensation for the mental torture he suffered.

Ghulam Rasool v. The State 2005 PCr.LJ 397; Qalb-e-Abbas alias Nahola v. The State 1997 SCMR 290; Zahoor Ahmad v. The State NLR 1995 SD 608; Nisar Muhammad v. Khanzali and another PLD 1959 (W.P.) Pesh. 115; Abdul Ghani v. The State PLD 1963 (W.P.) Lah. 445 and Ghulam Hussain alias Hussain Bakhsh and 4 others v. The State PLD 1994 SC 31 ref.

Mian Muhammad Saeed for Appellant.

Shamim Abbas Bulhari for the Complainant.

Miss Aneela Bano for the State.

Date of' hearing: 6th December, 2005.

PCRLJ 2006 FEDERAL SHARIAT COURT 705 #

2006 P Cr. L 1705

[Federal Shariat Court]

Before Saeed-ur-Rehman Farrukh, J

MUHAMMAD AKHTAR---Appellant

Versus

THE STATE-Respondent

Criminal Appeal No.310/I of 2005, decided on 16th January, 2006.

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

--S. 10(2) & (3)--Appreciation of evidence--Allegation of Zina-bil-Jabr---Possibility that alleged victim girl was a consenting party to the sexual intercourse, could not be excluded---Delay of one day took place in registration of case and no explanation was offered by prosecution for such delay---No justification was given as to why on being sexually assaulted alleged victim girl did not accompany prosecution witness to police station to promptly lodge F.I.R.---Victim girl also did not proceed to police station herself---Alleged victim girl, even after return of her father from other city, kept silent and did not utter a word about alleged rape before her father and it was prosecution witness who informed her father in that behalf---Failure of victim girl to inform her father about the serious offence committed upon her, cast considerable doubt on her assertion that she was subjected to sexual intercourse against her consent---Medical evidence had shown that alleged victim girl was of easy virtue and though she was unmarried and of 16 years, but had lost her virginity and became habitual to sexual intercourse---Would be highly unsafe to believe the ipsi dixit of unchaste girl---Absence of any mark of injury on body of victim girl, also belied prosecution version of Zina-bil-Jabr---Alleged victim girl, in view of all facts and circumstances of the case, it could not be positively said to be liable to be proceeded against as `Zania' as she was not challaned by the police and had no opportunity to defend herself---Conviction of accused under S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, could not be sustained and he was convicted under S.10(2) of the Ordinance and was sentenced to five years' R.I. plus fine.

Muhammad Asghar's case PLD 1985 FSC 1 and Muhammad Arshad's case 1995 SCMR 1639 ref.

Syed Abdul Aziz Shah for Appellant. Muhammad Sharif Janjua for the State.

Date of hearing: 16th January, 2006.

PCRLJ 2006 FEDERAL SHARIAT COURT 762 #

2006 P Cr. L J 762

[Federal Shariat Court]

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

MUMTAZ HUSSAIN----Appellant

Versus

THE STATE----Respondent

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

Penal Code (XLV of 1860)---

----Ss. 302 & 34---Appreciation of evidence---Prosecution evidence was materially contradicted by medical evidence---Accused persons did not have any common object to commit murder of deceased---All accused were residents of place of occurrence and none of them had any enmity against deceased to commit his murder---Prosecution allegation that a quarrel occurred between one of the co-accused and deceased which culminated into murder of deceased, was not convincing---Matter was not even reported to police and how grave the matter was, had not come on record and who were the persons involved in the dispute, had not been explained---Apparently a fictitious motive was created just to provide support to complainant's version---Prosecution version that three accused persons had inflicted fire-arm injuries from their respective guns and fourth one participated empty-handed in the offence was not free from doubt in view of fact that deceased had received only one fireshot---Prosecution version convincingly transpired that one of accused with whom deceased or complainant party had some grudge or friction, fired a shot from his gun hitting deceased on his chest who subsequently succumbed to the injury---Prosecution plea that report of Forensic Science Laboratory was positive and confirmed that three weapons had been used, had lost its weight in view of unambiguous medical report reflecting that deceased had received only one fire-arm injury---It was only fire of one of the accused persons which hit deceased---Participation of other three co-accused, was not established from the evidence on record and ambient circumstances of the case---Accused, who fired at deceased did not repeat same---Motive alleged by prosecution was vague and unconvincing---Imposition of extreme penalty of death on said accused, would not be justified in circumstances and same was converted to imprisonment for life---Conviction and sentences awarded to other three co-accused by Trial Court, under S.302, P.P.C., were set aside and they were acquitted of the charges.

Aftab Farrukh and Mian Muhammad Nawaz for Appellant.

Sardar Khurram Latif Khosa for the Complainant.

Abdul Majeed Chishti for the State.

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

PCRLJ 2006 FEDERAL SHARIAT COURT 776 #

2006 P Cr. L J 776

[Federal Shariat Court]

Before Zafar Pasha Chaudhary, J

YOUSAF MASIH and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.239/I of 2005, decided on 2nd March, 2006.

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

----S. 10(2)---Appreciation of evidence---Defence plea raised by accused persons was that, both of them believed themselves to be man and wife---Validity---Both having converted to Islam and thereafter entering into Nikah with each other, could not be held guilty for committing Zina---When two possibilities were available, then one in favour of accused had to be adopted---Offence of Zina would be constituted as envisaged by S.10 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 only whenever offence was committed with intention or at lust with knowledge to commit Zina---Accused persons in the present case being muslims and having got married to each other, .could not be held guilty of commission of Zina after they had entered into Nikah---No direct evidence was available to the effect that accused persons committed Zina with each other---Only circumstance brought on record by prosecution was the pregnancy of female accused---Attaining of pregnancy, though reflected that same must be consequence of copulation, but pregnancy by itself, was no evidence to prove beyond doubt that pregnancy was result of intentional Zina---If a woman believing herself to be wife of her accomplice, committed sexual intercourse with him, though could be erroneous, but should not be punished for commission of Zina and it would be unsafe to sustain conviction of accused persons on the strength of evidence brought on record by prosecution---Accused were acquitted of the charges against them setting aside their convictions and sentences.

Nazeeran v. State NLR 1988 SD 522; State v. Mushk-e-Alam 1997 PCr.LJ 1082; Muhammad Azam's case PLD 1984 SC 95 and Naseer Ahmad v. The State 1991 FSC 921 ref.

(b) Islamic Law---

----Conversion of a non-muslim to Islam---Any non-muslim could convert to Islam by announcing that he had embraced Islam by "believing in oneness of Allah Almighty, Hazrat Muhammad (p.b.u.h.) is last Prophet and also other Arkan of Islam"---No specific rite or procedure had been prescribed in that regard.

Section 19 Chapt II, Edition XVII of Muhammadan Law by Mullah ref.

Saeed Bilal for Appellants.

M. Sharif Janjua for the State.

Date of hearing: 13th February, 2006.

PCRLJ 2006 FEDERAL SHARIAT COURT 790 #

2006 P Cr. L J 790

[Federal Shariat Court]

Before Saeed-ur-Rehman Farrukh, J

ISHTIAQ alias SHAQU----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.179-L of 2003, decided on 27th May, 2004.

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

----S. 12---Penal Code (XLV of 1860), S.377---Appreciation of evidence---Reduction in sentence---Main thrust of defence was to impeach the character of complainant who was grandfather of victim boy, by showing him to be a professional litigant who would involve innocent persons in false cases, which always ended in compromise after he obtained monetary benefits, but no evidence, whatsoever was brought on record to support the plea regarding such character of complainant---Victim at the time of occurrence, was aged about 11 years and was a competent witness to depose about alleged occurrence---Victim in his testimony had given details of reprehensible occurrence stating how accused had forcibly deboarded him from his donkey cart and dragged him for about one acre and then at pistol point committed sodomy with him---Victim stood the test of cross-examination successfully and gave consistent and cogent replies to the searching questions by the defence---No reason could be spelt out from the record to disbelieve his testimony---Presence of complainant/grandfather of victim, at the spot of occurrence, was natural and his testimony also inspired confidence and had lent corroboration to the statement of victim---Statement of doctor who medically examined the victim, coupled with positive report of Chemical Examiner had lent further support and corroboration to the testimony of victim---Accused had taken up wholly artificial and concocted plea in his statement under S.342, Cr.P.C. which plea was worth little consideration---Accused neither had led defence evidence nor had entered the witness-box to depose on oath in disproof of prosecution allegations---Accused had absconded after occurrence and remained untraceable for more than six months---Such prolonged "ibscondence of accused, was also a factor to reckon with for holding him guilty---Trial Court had taken pains to appreciate evidence on record in a careful manner---Trial Court had neither misread nor omitted from consideration any material piece of evidence and conclusions drawn by it from the evidence/material on record, were fully justified---Conviction recorded against accused by Trial Court, was upheld, but as sentences awarded to accused appeared to be excessive, ends of justice would be met if substantive sentences were reduced from ten years to seven years and sentence of fine was reduced from Rs.25,000 to Rs.12,000 on each count.

Mazhar Hussain Tahir for Appellant.

Ch. Mumtaz Ahmad Bharwana for the Complainant.

Raja Abdul Rehman, A.A.-G. assisted by Miss Anila Bano for the State.

Date of hearing: 25th May, 2004.

PCRLJ 2006 FEDERAL SHARIAT COURT 806 #

2006 P Cr. L J 806

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan, J

CHANASER alias CHANOO and another----Appellants

Versus

THE STATE----Respondent

Jail Criminal Appeals Nos.12/K and 13/K of 2004, decided on 21st April, 2005.

Penal Code (XLV of 1860)---

----Ss. 324 & 397---Appreciation of evidence---Reduction in sentence--Both prosecution witnesses, were eye-witnesses as well as victims of offence as they both got injured during the occurrence and one of them, who received fire-shot injuries, was referred to hospital---F.I.R. was lodged promptly and there was absolutely no background of any grudge or motive for false implication of accused---Both prosecution witnesses had identified accused before Judicial Magistrate---Recovery of snatched motorcycle was effected on pointation of accused---Both prosecution witnesses, though were inter se related, but they being natural eye-witnesses of occurrence, their relationship inter se, had no adverse effect on prosecution case---Case of prosecution against accused, in circumstances, was established beyond any reasonable doubt---Maintaining conviction of accused, their sentences were reduced keeping in view circumstances of case, in the interest of justice, accordingly.

Mrs. Saeeda Siddiqui for Appellant.

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

Date of hearing: 21st April, 2005.

PCRLJ 2006 FEDERAL SHARIAT COURT 812 #

2006 P Cr. L J 812

[Federal Shariat Court]

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

Mst. GHAFOORAN BIBI and 6 others----Petitioners

Versus

FEDERAL GOVERNMENT OF PAKISTAN through Secretary Ministry of Law, Justice and Human Rights and 4 others----Respondents

Shariat Petition No.1/L of 2006, decided on 13th March, 2006.

Constitution of Pakistan (1973)---

----Art. 203-D---Anti-Terrorism Act (XXVII of 1997), S.7---Powers of Federal Shariat Court to examine and decide the question whether or not any law or provision of law was repugnant to Injunctions of Islam---Scope---Petitioner had assailed S.7 of Anti-Terrorism Act, 1997 on the ground that it was repugnant to Injunctions of Islam so far as it did not recognize right of waiver or Ufu to be exercised by Wall of deceased; or compounding the offence as a whole-Petitioner had prayed that section 7 be amended and brought in conformity with Injunctions of Islam---Validity---Offence under S.7 of Anti-Terrorism Act, 1997, could, by no stretch of imagination, be regarded as minor offence in comparison with 5.302, P.P.C., because under both said provisions, the offenders were liable to punishment of death---Section 7 of Anti-Terrorism Act, 1997, was rather an aggravated form of offence, because it contained the element of terrorism as well---Present petition, was primarily filed at a time, when after a long up and down travel through various Courts, fate of respondent was finally sealed by a judgment passed by the apex Court; and was prompted by urgency of issuance of black warrant against him for which petitioners had also moved an application for grant of stay on the execution order scheduled on date---Federal Shariat Court had no jurisdiction to pass any temporary injunction or grant relief in personam in such petition---Where the apex Court would pass an order after making certain interpretation and take a specific view about a particular law, jurisdiction of Federal Shariat Court, was further restricted---Petition being misconceived, was dismissed accordingly.

M. Asghar Rokhari for Petitioners.

Date of hearing: 13th March, 2006.

PCRLJ 2006 FEDERAL SHARIAT COURT 837 #

2006 P Cr. L J 837

[Federal Shariat Court]

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

Mst. BAKHSH ILAHI----Appellant

Versus

THE STATE and 6 others----Respondents

Criminal Appeal No.232/L of 2000, decided on 6th March, 2006.

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

----Ss. 3, 5 & 11---Constitution of Pakistan (1973), Art.203-D--- Appeal against acquittal---No cogent and convincing evidence was available on record to connect respondents with offence alleged against them---Longstanding history of enmity existed between both the parties, civil as well as criminal---Substance was found in plea of respondents that they were roped in present case only due to party faction in the village---Trial Court, after due appraisal of evidence, rightly reached the conclusion that prosecution had failed to prove its case against respondents---Trial Court was fully justified in the facts and circumstances of the case to acquit them---Double presumption of innocence accruing in favour of respondents due to their acquittal, could not be disturbed in appeal in absence of compelling circumstances---Appellant was actuated by sheer malice to falsely implicate respondents in the complaint---Respondents were forced to face the agony of wholly uncalled for trial from 1994 to 2000 and not feeling satisfied with untold hardship and misery caused to respondents due to above trial, appellant filed frivolous appeal against their acquittal and dragged them to the Federal Shariat Court---Appeal wholly being devoid of force, was dismissed with heavy costs/fine.

Umar Kamal Khan for Appellant.

Ch. Nisar Ahmed Dhillon for Respondents.

Shawar Khilji for the State.

Date of hearing: 6th March, 2006.

PCRLJ 2006 FEDERAL SHARIAT COURT 854 #

2006 P Cr. L J 854

[Federal Shariat Court]

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

TAJ MUHAMMAD alias TORAK and others----Appellants

Versus

THE STATE and others----Respondents

Criminal Appeal No.58/P, of 2004 and Criminal Appeal No.18/P, Murder Reference No.1/P and Criminal Revision No.1/P of 2005, decided on 2nd February, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Prosecution case rested on confessional statement of accused persons last-seen evidence furnished by wife of deceased, pointation of place of occurrence by accused, recovery of crime empties, recovery of crime weapon at the instance of accused, medical evidence which indicated that deceased was killed in the manner as suggested by prosecution and the Fire-arms and Ballistic Expert's Report---All said pieces of evidence, led to the guilt of accused persons---Accused not only confessed his guilt and got recorded his confessional statement, but also led police to place of occurrence, wherefrom crime empties were recovered--Co-accused had also recorded his confessional statement and said confessional statement was exhibited---Empties recovered from the place of occurrence along with crime weapons, too were sent to Ballistic Expert who confirmed that those were fired from crime weapon---Report of Ballistic Expert, was explicit,. in that regard---Delay in lodging F.I.R. was fully explained and explanation so offered was plausible and had been found quite satisfactory by the Trial Court and there was no reason to disbelieve same---Delay in recovery of crime empties as well as weapon of offence, had not marred evidentiary value thereof as no sooner accused pointed out the place of occurrence to the police, recovery of crime weapons was effected---Pointation of place of occurrence and recovery of empties therefrom led to the only inference that accused were responsible for the" offence---Confessional statements of accused were recorded after fulfilling all necessary requirements prescribed under the law---Corroboration to confession was sought for as a matter of prudence only, otherwise legally confession, judicial or extra-judicial, retracted or unretracted, if found voluntary and true, could be made sole basis of conviction particularly against its maker---Co-accused, who shared common intention with other accused, was rightly convicted for the offence---Convictions and sentences, recorded against accused by the Trial Court were maintained and murder reference was answered in affirmative.

Manjeet Singh v. The State PLD 2006 SC 30; Muhammad Azam and others v. The State 2006 PCr.LJ 62; Shehzado v. The State PLD 2005 SC 477; Muslim Shah v. The State PLD 2005 SC 168; Fazal Rchman and others v. The State PLD 2004 SC 250; Khuda Bakhsh v. The State 2004 SCMR 331; Tariq Hussain Shah v. The State 2003 SCMR 938; Shaukat Ali alias Tayyab Ali and others v. The State 2003 SD 554; Muhammad Ashraf v. The State 2001 FSC 13; Khan Muhammad and others v. The State 1999 SCMR 1818; Daulat Ali and others v. M. Aslam and others 1989 MLD 944; The State through A.-G.. N.-W.F.P., Peshawar v. Waqar Ahmad 1992 SCMR 950; Muhammad Gul and others v. The State 1991 SCMR 942 and Wazir Khan v. The State 1989 SCMR 446 ref.

Miss Farhana Marwat for Appellant (in Criminal Appeal No.58/P of 2004).

Shakeel Ahmad for Appellant (in Criminal Appeal No.18/P of 2005).

Ishtiaq Ibrahim for the Complainant (in Criminal Revision No.1/P of 2005).

Sajid Ali for the State.

Date of hearing: 2nd February, 2006.

PCRLJ 2006 FEDERAL SHARIAT COURT 893 #

2006 P Cr. L J 893

[Federal Shariat Court]

Before Saeed-ur-Rehman Farrukh, J

MUHAMMAD SHAFIQUE----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.259/I and Jail Criminal Appeal No.281/I of 2005, decided on 15th March, 2006.

Penal Code (XLV of 1860)---

----S. 328---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(2)(3)---Appreciation of evidence---Nothing was on record to prove that abandoned baby was daughter of female accused or that said baby was born out of sexual relationship between accused persons---Since it could not be proved that two accused were the parents of the baby, question of their prosecution under S.328, P.P.C., hardly arose as pre-condition for invocation thereof was that child was to be exposed or abandoned by father or the mother---Prosecution case itself was that female accused had stated before prosecution witness that she was not subjected to Zina by male accused---She did not make any confession about her guilt before Judicial Magistrate---Nobody saw accused persons committing Zina with each other---Allegation of Zina-bil-Raza against accused persons, remained unproved, in circumstances---Male accused was not charged with offence under S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Exculpatory statement of female accused, could not be treated to be piece of evidence of incriminating nature against male accused---When an accused exculpated himself/herself in the crime, then his/her statement of incriminating nature against co-accused carried no evidentiary value---Mutually self-exculpatory statements of both accused, were liable to be ignored, in circumstances---Impugned judgment being based on erroneous presumption/conjectures on' the factual aspects of the case and misappreciation/misapplication of law qua the questions involved in the case, could not be maintained---Both appeals were accepted and convictions and sentences awarded to accused by the Trial Court, were set aside and they were acquitted and released from jail.

Muhammad Aslant Uns and Khanzada Ajmal Zeb Khan for Appellant.

Muhammad Sharif Janjua for the State.

Date of hearing: 15th March, 2006.

PCRLJ 2006 FEDERAL SHARIAT COURT 931 #

2006 P Cr. L J 931

[Federal Shariat Court]

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

ALI HUSSAIN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.45/L and Criminal Murder Reference No.1/L of 2002, decided on 31st March, 2006.

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

S. 302(b)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10(3) & 18---Appreciation of evidence---Younger sister of deceased as prosecution witness had deposed that deceased before death told her that accused had put her on fire---Said witness produced a bottle containing kerosene oil before Investigation Officer which was taken into possession vide recovery memo.---Said witness was cross-examined at length, but she stood her ground and gave cogent and consistent replies to all searching questions put to her---Statement made by deceased to her younger sister before her death about implication of accused for putting her on fire, which was a dying declaration, was of great significance which could not be brushed aside on any justifiable ground---Younger sister of deceased/prosecution witness, was not. inimical towards accused---Deposition of said witness had ring of truth---Sufficient corroborative evidence was available on record in support of dying declaration, like medical evidence and statement of deceased made before her younger sister soon after the occurrence, that deceased was put on fire by accused on her refusal to submit to his lust---Accused in his statement made under S.342, Cr.P.C. had taken up pleas that deceased committed suicide as she was reprimanded by her father who was mentally a deranged person---Plea of alleged insanity of father of deceased was hollow---Father of the deceased deposed in Court twice and no abnormality or derangement of mind was noticed---Perusal of his statements also negated that contention---Question of deceased putting to end of her life due to reprimand of her father, who allegedly did not possess a balanced mind, did not arise; further, at no stage of the trial during recording of evidence, said plea was raised---Incident was result where a young pious girl who was Hafiz-e-Qur'an, resolutely resisted the satanic desire of accused to sexually assault her and lost her life while defending her chastity---Accused remained absconder after occurrence for a considerable period of more than one month---Accused was burdened with guilty conscience and tried to stay away from the village in a hid to escape apprehension by the police---Prosecution had fully succeeded in bringing home guilt to accused and he was rightly convicted and sentenced, as no mitigating circumstances were available on record---Death sentence awarded to accused was confirmed and Murder Reference was answered in positive.

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

----Art. 46---Dying declaration---Salient features of---Some of salient features of dying declaration, were; (i) there was no bar that it could be made before a private person or it must be signed by its maker; (ii) once proved to be made by deceased, dying declaration was to be treated as substantive evidence, which if found to be true, keeping in view attending circumstances, accused could be convicted by solely relying on it.

Farmanullah v. Qadeem Khan and another 2001 SCMR 1474 ref:

Sh. Khizar Hayat for Appellant.

Aftab Ahmad Khan for the State.

Date of hearing: 22nd February, 2006.

PCRLJ 2006 FEDERAL SHARIAT COURT 950 #

2006 P Cr. L J 950

[Federal Shariat Court]

Before Ch. Ejaz Yousaf CJ

FAYYAZ HUSSAIN and 3 others----Petitioners

Versus

THE STATE and another----Respondents

Criminal Revision No.4/I of 2006, decided on 31st March, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 75 & 439---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16---Revision---Issuance of perpetual warrants of arrest---Since petitioners were declared proclaimed offenders as they did not appear before the Trial Court when summoned and also remained absent at the trial, Trial Court was justified to order for issuance of perpetual warrants of arrest against them---Fugitive from law would lose some of the normal rights granted by procedural as well as substantive laws and appeal/revision filed by him was to be entertained in exceptional cases, only when either it was filed properly when he was in custody or was prepared to or had actually surrendered---Intentional absence, disappearance or defiance of Court process had never been appreciated because it was regarded as its contempt---Proper course for petitioners was to appear before the Trial Court and participate in proceedings.

Mohtarma Benazir Bhutto, M.N.A., Leader of the Opposition, Bilawal House, Karachi v. The State through Chief Ehtesab Commissioner 1999 SCMR 1619; Mohtarma Benazir Bhutto and another v. The State 1999 SCMR 2726; Awal Gul v. Zawar Khan and others PLD 1985 SC 402; Kh. Azhar Hussain and another v. The State 1983 SCMR 978; Mairaj Begum v. Ejaz Anwar and others PLD 1982 SC 294; Hayat Bakhsh v. The State PLD 1981 SC 265; Rao Qadeer Khan v. The State PLD 1981 SC 93; Amir and others v. The State PLD 2004 Quetta 16 and Begum Nusrat Bhutto through daughter Mst. Sanam Bhutto, 194, Queen Gali, London v. The State through Chairman, National Accountability Bureau PLD 2002 Lah. 74 ref.

Tariq Mehmood Khan for Petitioners.

Date of hearing: 31st March, 2006.

PCRLJ 2006 FEDERAL SHARIAT COURT 954 #

2006 P Cr. L J 954

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, CJ

MUHAMMAD IMRAN---Applicant

Versus

THE STATE----Respondent

Jail Criminal Miscellaneous Application No.83-Q of 2001, decided on 20th May, 2005.

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

----Ss. 35 & 397---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(2)(3)---West Pakistan Arms Ordinance (XX of 1965), S.13(e)---Application for making sentences of imprisonment to run concurrently---Sentences for more than 43 years of imprisonment were inflicted on the applicant/accused in different offences---Applicant in his application had prayed that said sentences be made concurrent---Application was objected to on the ground that since the application had been filed after disposal of appeal filed by applicant against his conviction and sentences, it had to be seen as to whether or not, the Court, after deciding said appeal, had become functus officio---Validity---Appeal filed by applicant, though was decided before filing of said application, but since applicant had omitted to file that application at the relevant time, which if filed, would have been otherwise allowed, as application filed by his co-accused in that respect, whose case was at par with applicant, was allowed, Court, notwithstanding decision of the appeal, had not become functus o! ficio; because, the Courts were always competent to decide time matters related with the main "case ---So far as grant or refusal of the relief claimed through the present application was concerned, the Court had not become functus officio.

Akram Khan and 2 others v. The State 1990 SCMR 486; Iqbal Elahi v. The State 1987 SCMR 1274; Muhammad Hussain v. The State PLD 2005 Kar. 196; Muhammad Amin v. The State PLD 2004 Kar. 485; Muhammad Yousaf v. The State 1998 MLD 755; Haji Muhammad Ismail v. The State 1992 PCr.LJ 988; Muhammad Aziz v. The State 1997 MLD 1433; Sabir Khan v. The State 1994 PCr.LJ 438; Mst. Razia Bibi and 3 others v. Muhammad Arshad and others 1994 MLD 1; Khalil Ahmad v. The State 1994 MLD 1739; Akbar Khan v. The State 1991 PCr.LJ 845; Liaquat v. The State 1991 PCr.LJ 1721 and Muhammad Imran and another reported as SBLR 2001 FSC 50 ref.

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

---Ss. 35, 397 & 561-A---Running of different sentences concurrently---Provisions of S.397 as well as 35(1), Cr.P.C. dealt with altogether different situations---Basic difference, between the two provisions, was that, where S.397, Cr.P.C,. prescribed for running of different sentences inflicted on an offender, at different trials, for different offences, without any clog of time, place and nature of offence, S.35, Cr.P.C. enjoined that it would come into play, when a person was convicted at one trial of two or more offences---Apparently both the sections were not in conflict with each other, rather it catered for and dealt with different situations---Since direction under S.35, Cr.P.C. was contingent on the conviction of a person for several offences at one trial, said section was not attracted to the present case because co-accused in the present case had been convicted at different trials, for the offences committed at different times and places---Section 397, Cr.P.C., however would be helpful to some extent as it empowered a Court to direct that any sentence of imprisonment inflicted on a person subsequently, while he was already undergoing a sentence of imprisonment, could run concurrently, with his previous sentence, yet, it too would not answer the proposition conclusively as it was silent with regard to the running of sentence concurrently,. inter se---Court in the situation would have recourse to both Ss.397 as well as S.561-A, Cr.P.C.---Powers under Ss.397 and 561-A, Cr.P.C., however, had to be exercised sparingly in certain cases only where imposition of subsequent sentence either offended any constitutional or legal provisions or the directions to make sentences concurrent was necessary to secure ends of justice.

Janta Kausar Banarjee v. The State AIR 1955 Cal. 632; Nagappa Rayanhappa Sali and others v. Emperor 134 IC 1931 AIR 1931 Born. 529; Mullapudi Venkanna v. The State AIR 1964 Andhra Pradesh 499; Bajnath Kurmi and another v. The State AIR 1961 Pat. 138 and Sis Ram and others v. Emperor AIR 1929 All. 585 ref.

----Art. 13---Criminal Procedure Code (V of 1898), S.403---General Clauses Act (X of 1897), S.26---Protection against double punishment---For an act or omission constituting an offence under two or more enactments, offender would be liable to be prosecuted and punished under any of those enactments as provided by S.26 of General Clauses Act, 1897, but he could not be punished twice for the same offence keeping in view the provisions of Art.13 of the Constitution and S.403, Cr.P.C.---In such a ease it would be appropriate to record convictions separately and award concurrent sentences if they were of imprisonment.

Niaz Ali v. The State PLD 1961 (W.P.) Lah. 269; Khan Zaman and others v. The State 1987 SCMR 1382; Juma Khan and another v. The State 1986 SCMR 1573; Muhammad Ittifaq v. The State 1986 SCMR 1627; Zareen Shah v. Superintendent of Central Jail Mach and another 1997 PCr.LJ 1185; Hasan Shah v. Ghulam Murtaza and another PLD 1970 SC 335; Khawaja Fazal Karim v. The State PLD 1976 SC 461 and Ghulam Muhammad v. Muzammal Khan and another PLD 1967 SC 317 ref.

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

----S. 35---Penal Code (XLV of 1860), S.53---Purpose behind infliction of sentence---Purpose behind infliction of sentence was two fold; firstly, it would create such atmosphere which could become a deterrence for the people who had inclination towards crime; and secondly to work as a medium in reforming the offenders---Sentence should be neither so severe that offenders, could, out of frustration, become desperate and hardened criminals nor it should be so mild that it encouraged to commit offence again---In judging adequacy of sentence certain other factors, such as, circumstances in which offence was committed, age and character of offender and injury to individuals and the society, etc., were also to be considered.

(e) Constitution of Pakistan (1973)---

----Art. 203-DD---Benefit granted to one appellant, could be granted to non-appealing accused persons, as well.

Muhabbat Ali and another v. The State 1985 SCMR 662; Muhammad Aslam and 5 others v. The State 1972 SCMR 194; Akbar Hussain and another v. The State 1997 PCr.LJ 543; Mukhtar Ahmad and others v. The State 1991 PCr.LJ 1528; Pawan Kumar v. State of Haryana 2003(5) Supreme 196; Bijoy Singh and another v. State of Bihar 2002(4) Supreme 362; Durga Shankar Mehtar v. Raghuraj Singh and others AIR 1954 SC 520; Harbans Singh v. State of Uttar Pradesh and others (1982) 2 SCC 101; Akhil Ali Jehangir Ali Sayyed v. State of Maharashtra, JT 2003 (2) SC 158; Anil Rai v. State of Bihar (2001) 7 SCC 318; Raja Ram and others v. State of M.P. (1994) 2 SC 568; Challappan Mohandas and others v. State of Kerala AIR 1995 SC 90; Dandu Lakshmi Redddy v. State of A.P. (1999) 7 SCC 69; Gurcharan Kumar and another v. State of Rajasthan JT 2002(1) SC 60 and Suresh Chaudhary v. State of Bihar 2003 4 SCC 128 ref.

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

----S. 17(2)(3)---West Pakistan Arms Ordinance (XX of 1965), S.13(e)-Criminal Procedure Code (V of 1898), Ss.35 & 397---Sentence---Accused was young man of about 20 years of age and while in jail had considerably improved his education by passing a number of examinations---Conduct of accused in the near past had been remarkable---Application of accused that his sentence be made concurrent, was allowed in the hope that indulgence shown to him, would bring out of him a law abiding and respectable citizen---Court directed that sentences of imprisonment inflicted on accused, would run concurrently---Sentences of fine, however, would remain the same.

Muhammad Aslam Uns for Applicant.

Muhammad Shoaib Abbasi for the State.

Date of hearing: 20th May, 2005.

PCRLJ 2006 FEDERAL SHARIAT COURT 969 #

2006 P Cr. L J 969

[Federal Shariat Court]

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

MOHSIN SALEEM and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.125/L and 158/L of 2003, decided on 23rd February, 2006.

(a) Islamic Law---

----Legitimacy---Legitimacy of a child had always been considered to be of ultimate importance---If a child was treated as illegitimate and allowed to be grown up as such then the stigma carried by him or her would be more aggravated and remain harmful to the child, moreso when he or she would further grow---Illegitimate child, in the society, was treated as detestable and not accepted as genuine member of society.

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

----Ss. 10(2) & 11---Penal Code (XLV of 1860), S.109---Appreciation of evidence---Both accused persons had effected compromise with complainant and victim girl and it had been stated that both complainant and alleged victim had been adequately compensated monetarily---Parties though had arrived at some settlement, but offences whereunder accused had been convicted, were not compoundable---Mere compounding of offence or effecting compromise by the parties, would not by. itself be sufficient to pass any verdict in appeals---Complainant was neither witness of alleged abduction nor of the commission of alleged Zina---Whatever complainant had stated would be treated as a hearsay evidence; which was not even admissible in evidence unless the person from whom complainant had heard the same, was examined as a witness---Statement of complainant was of no help to the prosecution---Medical evidence too, did not, in any manner, advance case of prosecution---Victim girl was found to have given birth to a child, but mere pregnancy of a woman or her giving birth to a child, could not, by itself, be treated as sufficient evidence to prove guilt of alleged offender---In absence of evidence sufficient. to warrant conviction of accused, benefit of doubt, in any case, had to be extended to accused---Conviction of accused could not be maintained under either of the charges.

Rai Muhammad Zafar Bhatti for Appellant (in Criminal Appeal No.125/L of 2003).

Mian Muhammad Aslam Arain for the Complainant (in Criminal Appeal No.125/L of 2003).

Naeem-ul-Hassan Sherazi for Appellant (in Criminal Appeal No.158/L of 2003).

Shafqat Munir Malik, Assistant Advocate-General for the State (in Criminal Appeals Nos.125/L and 158/L of 2003).

Dates of hearing: 21st and 23rd February, 2006.

PCRLJ 2006 FEDERAL SHARIAT COURT 1010 #

2006 P Cr. L J 1010

[Federal Shariat Court]

Before S.A. Manan, J

MUHAMMAD SHAHID and others----Appellants

Versus

THE STATE----Respondent

Jail Criminal Appeals Nos.353/I of 2004, 29/L of 2005 and Jail Criminal Appeal No.12/I of 2006, decided on 30th March, 2006.

Penal Code (XLV of 1860)---

----Ss. 337-J & 377. Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Appreciation of evidence---Chemical Examiner in his report regarding sample of blood, urine, stomach wash and anal swabs had stated that swabs were stained with semen, but no semen group was conducted in the case---Victim was medically examined and report of Doctor concerned was positive---After perusing medical opinion it was established beyond doubt that victim was subjected to sodomy---Deposition of complainant who was father of victim, could not be believed as he, while standing outside the house, concerned could not witness that victim was being administered poisonous and intoxicant material; it appeared that complainant had not made correct statement---After rejecting deposition of complainant there was the statement of victim which was trustworthy and confidence inspiring and there was no reason to disbelieve the same---Conviction of accused, in circumstances, could be based on statement of victim but not on a . deposition of complainant/his father who claimed to be an eye-witness---Victim was subjected to lengthy cross-examination, but he stood the test and remained unshaken---No material discrepancy was shown in the statement of victim---Accused, in circumstances, had committed offence of sodomy with the victim---According to report of Chemical Examiner no poison having been detected from stomach wash of victim, it could not be said that accused had administered intoxicants to the victim by which he could not see things in clear terms---Victim having gone with accused persons for kite flying where they committed sodomy with him, provisions of S.12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 would not be applicable because accused had taken away the victim for the purpose of committing sodomy and not abduction---Accused would be punished under S.377, P.P.C.---Conviction and sentence of accused under S.12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was set aside, in circumstances---One of accused persons was Juvenile as his age was 15 years; he being very young his conviction under S.377, P.P.C. was maintained, but his sentence was reduced from seven years to four year R.I.---Remaining two accused being aged about 32 and 27 years, respectively, it was not possible to reduce their sentence, their conviction and sentences, were maintained.

Saliheen Mughal for Appellants (in Jail Criminal Appeals Nos.353/I and 12/I of 2006).

Syed Ahmad Hussain Shah for Appellant (in Criminal Appeal No.29/L of 2005).

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

Date of hearing: 13th February, 2006.

PCRLJ 2006 FEDERAL SHARIAT COURT 1035 #

2006 P Cr. L J 1035

[Federal Shariat Court]

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

AHMAD KHAN and another----Appellants

Versus

THE STATE and 19 others----Respondents

Criminal Appeals Nos.251-L and 247-L of 2003, decided on 16th May, 2005.

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

----Ss. 10(3) & 11---Penal Code (XLV of 1860), 5.368---Appreciation of evidence---Sentence, reduction in---Statements of both complainant and his daughter/alleged abductee, were not trustworthy and confidence inspiring---Son of complainant was accused of abducting sister of accused---Trial Court had misdirected itself in awarding punishment to accused for life imprisonment under S.11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, because not an iota of evidence was available to prove case of abduction against accused---Findings of the Trial Court on said charges, were set aside and accused was acquitted on said charge---Accused had claimed that daughter of complainant/alleged abductee, was his legally wedded wife, and reliance was placed on Nikahnama, which had not been challenged by alleged abductee---Sentence passed by the Trial Court against accused was highly excessive in view of background and history of the case---Sentence of twenty five years, was reduced to ten years R.I.

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

----S. 417---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10(3) & 11---Penal Code (XLV of 1860), S.368---Appeal against acquittal---Complainant whose daughter was allegedly abducted by accused persons, had filed appeal against acquittal of nineteen accused persons in same case---Appeal of main accused who allegedly had abducted daughter of complainant/appellant, had partially been accepted---No case was made out against acquittal of accused including females and some of the respondents, who were earlier in criminal litigation in case of abductee by son of complainant---Appeal against acquittal was dismissed, in circumstances.

Zafar Iqbal Chohan for Appellant (in Criminal Appeal No.251-L of 2003).

Riaz Ahmad Kataria for Appellant (in Criminal Appeal No.247-L of 2003).

Abdul Majeed Chishti for Respondents.

Date of hearing: 16th May, 2005.

PCRLJ 2006 FEDERAL SHARIAT COURT 1101 #

2006 P Cr. L J 1101

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, CJ

Mst. AKHTAR BANO----Petitioner

Versus

UMAR BAZ and another----Respondents

Criminal Revision No.24/I of 2005, decided on 26th January, 2006.

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

----Ss. 200, 247 & 439---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10 & 11---Dismissal of private complaint for non-prosecution---Restoration---Revision, maintainability of---Revision was directed against order whereby private complaint filed by petitioner/complainant was dismissed due to absence of complainant and later on application filed for its restoration was also rejected---Maintainability of revision was objected to on ground that since order dismissing complaint for non-prosecution, passed under S.247, Cr.P.C., was tantamount to acquittal of accused, same being an appealable order, revision was not maintainable---Validity---Order passed under S.247, Cr.P.C., though was appealable, but since revisional power under S.439, Cr.P.C. was not a mere power, but a duty which could not have been effectively discharged, unless the High Court had seen that subordinate criminal Courts conducted their proceedings strictly in accordance with law; and that it would be a startling proposition that High Court should be disabled from discharging that very necessary duty simply because a party, who could and should have appealed, made mistake of filing a revision or a party, which was adversely affected by result of proceedings, had no right to invoke revisional jurisdiction---Order passed under S.247, Cr.P.C. could be interfered with in revision---Objection raised was misconceived.

Zahoor and another v. Said-ul-lbrar and another 2003 SCMR 59; Muhammad Nawaz Kasuri, Advocate, Supreme Court v. Mian Abdul Hameed and another 1993 SCMR 1902; Iftikhar Ahmad Chatha v. Additional Sessions Judge and others NLR 1996 Criminal 44; Banarus Khan v. The State PLD 1995 Pesh. 103; Syed Manzoor Hussain Shah v. Syed Agha Hussain Naqvi 1983 SCMR 775; Abdul Rasheed Janjua v. The State and 2 others 2003 YLR 2211; Sahibzada Syed Sikandar Shaheen v. The State and other PLD 2002 Lah. 341; Yahya Bakhtiar v. Mir Shakeel-ur-Rehman and 2 others PLD 1998 Quetta 37 and Mukhtar alias Mokha v. Waryam and others 1993 PCr.LJ 865 ref.

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

----Ss. 190(2), 193, 200, 247 & 439---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10 & 11---Private complaint---Dismissal of complaint for non-prosecution---Restoration---Revision---Private complaint was dismissed due to absence of complainant and application for its restoration was also dismissed---Petitioner had challenged said orders in revision---Sessions Judge while dismissing complaint and rejecting application for restoration of complaint, had observed that there was no provision in Cr.P.C. for restoration of complaint---Complaint was directly filed by complainant in the Court of Session and was never presented before a Magistrate, whereas under the law no Court of Session, except otherwise_ expressly authorized by Cr.P.C. or any other law, was competent to take "cognizance" of any offence unless case was sent to it by Magistrate under S.190(2), Cr.P.C.---Provision of 5.193, Cr.P.C. was explicit in that regard---Both offences i.e. under Ss.10 and 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, whereunder complaint was filed being cognizable and non-compoundable, complaint could not have been dismissed for non-prosecution---Federal Shariat Court accepted revision and orders dismissing complaint and rejecting application for restoration, passed by Sessions Judge, were set aside and case was remanded to the Trial Court for its decision in accordance with law.

Jamshed Ahmad for Petitioner.

Muhammad Farooq for Respondents.

Muhammad Sharif Janjua for the State.

Date of hearing: 26th January, 2006.

PCRLJ 2006 FEDERAL SHARIAT COURT 1183 #

2006 P Cr. L J 1183

[Federal Shariat Court]

Before S.A. Rabbani, J

GHULAM MURTAZA alias GABBAN----Appellant

Versus

THE STATE----Respondent

Jail Criminal Appeal No..31-K of 2005, decided on 16th January, 2006.

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

----Ss. 7 & 10(3)---Penal Code (XLV of 1860), 5.341---Appreciation of evidence---Sentence, reduction in---Age of accused---Trial Court in its judgment had observed that age of accused was 12 years and he was minor at the time of commission of alleged offence---Doctor who had examined the accused stated that accused was aged 13/14 years, but according to Radiologist report age of accused Was 12 years---Medical Officer was of the opinion that accused was capable of performing sexual act---Section 7 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 had provided that a person guilty of Zina or Zina-bil-Jabr, if he was not an adult, would be punished with imprisonment of ,either description for a term which could extend to five years---Accused being not adult, his conviction was converted to under S.7 of Offence of Zina .(Enforcement of Hudood) Ordinance, 1979 and his , sentence was converted to that already undergone by him accordingly.

Abdul Razzaq for Appellant.

Agha Zafir Ali for the State.

Dare of hearing: 16th January, 2006.

PCRLJ 2006 FEDERAL SHARIAT COURT 1215 #

2006 P Cr. L J 1215

[Federal Shariat Court]

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

MUHAMMAD RIZWAN and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.191-I of 2000, Criminal Revision No.37/I of ,2002 and Murder Reference No.9/I of 2001, decided on 29th March, 2006.

Penal Code (XLV of 1860)---

----Ss. 302, 379, 411 & 34---Appreciation of evidence---Sentence, reduction in---Confessional statement of accused which was recorded by Judicial Magistrate after completing requisite legal formalities, was proved to be made voluntarily and without any pressure/coercion/torture by police---Accused had retracted the confession by taking up the plea of torture at the stage of trial on realizing the grave consequences, likely to flow from confession---Sufficient evidence of unimpeachable character was available on record which provided corroboration of conviction of accused---Independent prosecution witness had no motive whatsoever to falsely depose against accused persons---Medical evidence showed that deceased was killed by fire-arm---Only one shot was fired which proved fatal---Deceased was killed by a bullet fired from a pistol/revolver in view of nature and extent of injuries on dead body---Prosecution, in circumstances had rightly relied upon medical evidence to connect accused with the murder as confessed by him---Recovery of car from prosecution witness from his workshop at the pointation of accused was yet another piece of strong corroborative evidence connecting accused with the crime---Recovery of revolver at the pointation of lady accused from her house, was worthless---No crime empty was recovered from the spot nor any lead piece was retrieved from the body of deceased so as to be connected with revolver---No reliance could be placed on the recovery of said revolver to hold that fatal shot was fired from it---Evidence on record had provided sufficient corroboration to the retracted judicial confession of accused---Male accused, in circumstances was rightly convicted by the Trial Court for Qatl-e-Amd of deceased within the purview of 5.302(b), P.P.C. and female accused was proved to be his accomplice in murder of deceased and was convicted under S.302(b) read with S.109, P.P.C.---Confessional statement was to be either accepted or rejected as a whole while deciding a case---Explanation given by male accused for murder of deceased, appeared to be plausible---Murder was neither pre-planned nor the outcome of some previous enmity---Parties were on friendly terms as per prosecution itself---Some indecent act of deceased with lady accused appeared to have provoked male accused to such an extent that he killed the deceased there and then--Sentence of death awarded to accused was reduced to life imprisonment as Tazir and his sentences under Ss.379 & 411, P.P,C. were set aside and he was acquitted of charges thereunder, however, instead he was convicted and sentenced under S.392, P.P.C.---Conviction and sentence of female accused under Ss.302, 34, 379 & 411, P.P.C. were set aside and she was also acquitted of charges thereunder and instead she was convicted under S.392, P.P.C. and sentenced accordingly.

Ch. Muhammad Yaqoob and others v. The State and others 1992 SCMR 1983; Haq Nawaz v. The State 2000 SCMR 785; Muhammad Gul v. The State 1991 SCMR 942; Muhammad Saleem's case PLD 2002 SC 558; Abdul Haque's case PLD 1996 SC 1; Muhammad Imran's case PLD 2001 SC 956 and Ijaz Hussain's case 2002 SCMR 1455 ref.

Syed Riaz-ul-Hassan Gilani for Appellants.

Saliheen Mughal for Petitioner.

Muhammad Sharif Janjua for the State.

Date of hearing: 29th March, 2006.

2006 P Cr. L J 1967

[Federal Shariat Court]

Before Haziqul Khairi, C.J.

TARIQUE alias TAHIR alias TAHIRO and another----Petitioners

Versus

THE STATE----Respondent

Jail Criminal Revision No.13/I of 2006, decided on 26th September, 2006.

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

----S. 14---Penal Code (XLV of 1860), S.380---Constitution of Pakistan (1973), Art.203-DD---Criminal Procedure Code (V of 1898), S.561-A---Sentence, reduction in---Petitioners had not questioned the conviction, but had requested that their sentence be reduced to two years' R.I.---Request of petitioners had not been objected to by the State counsel--Petitioners were young and not previous convicts; in such a situation it was in the interest of justice that petitioners should not be allowed to suffer for the oversight of the Trial Court and Appellate Court below---Federal Shariat Court in exercise of its powers under Art.203-DD of the Constitution read with S.561-A, Cr.P.C., reduced the sentences of petitioners from three years' R.I. each to two years' R.I. each, in circumstances.

Syeda B.H. Shah for Petitioners.

M. Shoaib Abbasi for the State.

Date of hearing: 15th September, 2006.

PCRLJ 2006 FEDERAL SHARIAT COURT 1978 #

2006 P Cr. L J 1978

[Federal Shariat Court]

Before Haziqul Khairi, CJ

HABIB-UR-REHMAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.17-K of 2006, decided on 16th August, 2006.

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

----Ss. 17(3) & 24(1)---Penal Code (XLV of 1860), Ss.337-F(i), 392 & 34---Criminal Procedure Code (V of 1898), S.540---Appreciation of evidence---Summoning or re-examination of material witness---Sentence, reduction in---Main thrust of arguments of counsel for accused was that the Trial Court had failed to appreciate that none of the prosecution witnesses was cross-examined by counsel for accused and that the Trial Court had shown unnecessary haste to deprive accused of his right to cross-examine prosecution witnesses and proceeded further in disposing of the case---Examination-in-Chief of prosecution witnesses continued on six different dates but at no point of time counsel for accused was available for their cross-examination nor accused availed the opportunity to cross-examine prosecution witnesses himself---Trial Judge, though could not compel an accused to put up his defence, but was obliged to give maximum latitude to him to defend himself so that injustice may not be done to him and it was also not incumbent on accused, to put up his defence and he could leave it to the prosecution to prove their case against him and to let the Court to decide his fate or have mercy on him---Criminal matters must be taken very seriously by the Court as they pertain to life, liberty and honour of a citizen, but accused also could not be allowed to abuse due process of law---Full opportunity was given to accused, in the present case, to adduce his defence and cross-examine prosecution witnesses, but he could not avail the same and it was not the case of accused that on account of his poverty he was unable to engage a counsel in which case a State counsel could have been provided to him---Offence committed by accused being his first offence, sentence of 7 years awarded to him under S.392, P.P.C., was reduced to 5 years by Federal Shariat Court---Conviction under S.337-F(i) and 34, P.P.C., was however, maintained.

Nusrat v. The State 1997 MLD 1358; Altaf Hussain Shamim v. State PLD 1992 Kar. 91; Abdul Qadir v. The State PLD 1991 Kar. 353; Afzal Haider v. The State 1992 MLD 421; Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95 and Abdul Malik v. The State PLD 1985 FSC 293 ref.

Ms. Uzma Khan for Appellant.

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

Date of hearing: 16th August, 2006.

PCRLJ 2006 FEDERAL SHARIAT COURT 1988 #

2006 P Cr. L J 1988

[Federal Shariat Court]

Before Haziqul Khairi, CJ

HAJI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.20-K of 2006, decided on 17th August, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 340(2) & 342---Constitution of Pakistan (1973), Arts.203-DD & 203-E---Examination of accused on oath---Appellant/accused had urged that he replied in his statement under S.342, Cr.P.C. that he was willing to examine himself on oath under S.340(2), Cr.P.C., but his evidence was not recorded nor any explanation was given by the Trial Court for such omission---Appellant pleaded not guilty and having said so, it had given him right to give evidence on oath in disproof of the charges or allegations made against him which had cast upon the Court a duty toy seek clarification from appellant for retracting his earlier stand---Trial Court should have framed the question and recorded retracted statement of appellant in writing before commencement of his defence---Case was remanded with direction .to examine appellant on oath, if he so desired, and if not then record in writing his refusal to do so.

Salahuddin Panhwar for Appellant.

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

Date of hearing: 17th August, 2006.

PCRLJ 2006 FEDERAL SHARIAT COURT 1996 #

2006 P Cr. L J 1996

[Federal Shariat Court]

Before S.A. Rabbani, J

FAYYAZ HUSSAIN and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.23-K of 2003, decided on 18th November, 2005.

Criminal Procedure Code (V of 1898)---

----S. 397---Penal Code (XLV of 1860), Ss.324, 353 & 392---Application for running sentences concurrently---Applicants/accused who were convicted and sentenced in two different offences, had prayed that sentences awarded to them be ordered to run concurrently to provide them opportunity to mend themselves---Assistant Advocate-General, was also of the view that a concession in the form of relief under S.397, Cr.P.C. could be provided to accused to mend themselves---Allowing application, sentences of imprisonment in two cases were ordered to be run concurrently.

Muhammad Imran v. The State SBLR 2001 FSC 50 ref.

Mrs. Nasreen Zafar for Appellants.

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

Karachi High Court Sindh

PCRLJ 2006 KARACHI HIGH COURT SINDH 10 #

2006 P Cr. L J 10

[Karachi]

Before Wahid Bux Brohi, J

NAZIR AHMED---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No-D-86 of 2002, decided on 12th February, 2004.

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

----S. 13(d)---Appreciation of evidence---Defence witness though had been examined, but his evidence had neither been considered nor assessed---Accused was Mahar by caste and prosecution witness was Jatoi by caste and enmity between said two castes had been admitted---No person from public had been joined as Mashir in the case---Mere existence of enmity between two tribes, though was not always sufficient for drawing inference against testimony of witness belonging to caste other than that of accused and on that score alone prosecution evidence could not be discarded, but fact remained that in the present case defence witness had been thrown out of consideration---No reason was available to eliminate defence from the judgment---In view of material drawback that defence evidence had been totally ignored despite a definite plea taken by accused right from beginning, same would be resolved in favour of accused---Accused had already suffered a lot as he remained in detention for a period of more than two years---Conviction and sentence awarded to accused, were set aside in circumstances.

Khalid Javed v. State 2003 SCMR 1419 and Ashiq Hussain v. State PLD 1994 SC 879 ref.

Abdul Qadir Abro for Applicant.

Mushtaque Ahmed Kourejo for the State.

Date of hearing: 12th February, 2004.

PCRLJ 2006 KARACHI HIGH COURT SINDH 18 #

2006 P Cr. L J 18

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

ABDUL SUBHAN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.1102 of 2004, decided on 28th February, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.379---Interim bail before arrest, grant of---Accused was Principal of a school and co-accused was a student of first year---Both accused being respectable persons had allegedly been falsely implicated in case on account of election rivalry---Prima facie it appeared to be a mala fide act on part of prosecution just to please ruling party by impleading accused belonging to opposition in case for theft of goats---Interim bail before arrest granted to accused, was confirmed.

Ghulam Qadir Jatoi for Applicants.

Rehana Akhtar and Abdul Jalil for the State.

PCRLJ 2006 KARACHI HIGH COURT SINDH 23 #

2006 P Cr. L J 23

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

TARIQ IRSHAD and others---Appellants

Versus

THE STATE and others---Respondents

Special Criminal Appeals Nos.6, 8 and 9 of 2004, decided on 29th August, 2005.

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

----Arts. 9 & 24---Security of person---Protection of property rights---While dealing with the laws empowering to deprive a person of his life, liberty and property, mandatory requirements of law must be strictly adhered to for the reason that such action was to be taken keeping in view that under Art.9 of the Constitution, no person would be deprived of life or liberty save in accordance with law---Under Art.24 of the Constitution no person would be deprived of his property save in accordance with law.

(b) Interpretation of statutes---

----Every word used in Legislation was to -be assigned a meaning.

----Ss. 30, 31 & 32---Property suspected to be acquired by smuggling---Confiscation of---Pre-condition---Notice to person holding property suspected to be' acquired by smuggling---When Legislature had deemed fit to prefix the word suspect' with expressionreasonably', then it was incumbent on Special Judge to ensure that suspicion was not merely subjective, but it was objective and suspicion was substantiated with material which appeared to be reasonable---Word `reasonably' could not be assigned any hard and fast definition, it would differ from case to case and circumstances to circumstances---In every case suspicion, however, should be such which appealed to reason---Such intention of Legislature was further manifested with the proviso to 5.31 of Prevention of Smuggling Act, 1977 wherein it was provided that no such notice would be issued, unless, having regard to the value of his assets, his known sources of income, his style of living, his previous involvement in smuggling or conviction under any law relating to Prevention of smuggling and other similar factors and Special Judge had reasons to believe that sufficient ground was for proceeding against such person---Provision of S.31, proviso had not left any scope for any interpretation or imagination and it was very clear that Special Judge was not supposed to issue notice under S.31 of Prevention of Smuggling Act, 1977 on mere information laid before him, but he would examine the material placed before him and if so required, he could hold a preliminary inquiry as well---If sufficient material was furnished to Special Judge, then holding of preliminary inquiry would not be necessary---If Special Judge failed to record reason to believe that sufficient ground was available for proceeding against a person and issued a notice under S.31 of Prevention of Smuggling Act, 1977, it would be violative of mandatory requirement of law---Special Judge, in the present case, received information from Inspector Assets, A.N.F. and on same day issued notice under S.31 of Prevention of Smuggling Act, 1977 in a mechanical manner without applying his judicial mind to information furnished to him, nor had made any probe whether property allegedly held by persons complained against was reasonably suspected to be acquired by smuggling---Notice so issued and entire proceedings in pursuance thereof culminating in order passed under S.32 of Prevention of Smuggling Act, 1977, were held to be not in accordance with law and were invalid---Entire proceedings were quashed and impugned order passed by Special Judge was set aside.

Messrs Adrian Enterprises v. Anti-Narcotics Force Special Criminal Appeal No.32 of 1996 and Atta Muhammad Qureshi v. Settlement Commissioner Lahore Division PLD 1961 SC 61 ref.

Ismat Mehdi for Appellant (in Special Criminal Appeal No.6 of 2004).

Sohail Muzaffar for Appellant (in Special Criminal Appeal No.8 of 2004).

S. Mehmood Alam Rizvi,-Standing Counsel for the State and for Appellant (in Special Criminal Appeal No.9 of 2004).

Sohail Muzaffar for Respondents.

Date of hearing: 29th August, 2005.

PCRLJ 2006 KARACHI HIGH COURT SINDH 58 #

2006 P Cr. L J 58

[Karachi]

Before Sarmad Jalal Osmani and Azizullah M., Memon, JJ

HUSSAIN ABID JAFFARY---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.248 and 278 of 2004, heard on 31st March, 2005.

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

----S. 9(c)---"Possession", meaning and scope---Word "Possession" implied a physical capacity to deal with the thing as one liked to the exclusion of every one else and a determination to exercise that physical power on one's own behalf---"Possession" implied dominion over an object that one had it and that he could exercise it---Possession must be conscious and intelligent possession and not merely the physical presence of accused in proximity to the object.

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

----S. 9(c)---Appreciation of evidence---Officials of Anti-Narcotics Force entered into an official premises which was in joint possession of many officers/ officials of the Excise and Taxation Department---Evidence showed that most of properties found lying in the Almirah were `case-properties' of the cases, trial wherein either had proceeded before the competent Courts of law or were still pending---All such facts had clearly indicated that accused were neither in exclusive use of Almirah nor in exclusive possession of recovered material (which were alleged to be in their possession)---Prosecution, in circumstances had failed to prove its case against accused---Both appeals were allowed and impugned judgment of conviction and sentence awarded by Trial Court against accused, were set aside and they were acquitted of the charge against them and were released.

Shaukat Hayat and Amir Mansoob Qureshi for Appellant

S. Mahmood Alam Rizvi, Standing Counsel for the State.

Date of hearing: 31st March, 2005.

PCRLJ 2006 KARACHI HIGH COURT SINDH 97 #

2006 P Cr. L J 97

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

Hafiz MUHAMMAD ASLAM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 1130 of 2004, heard on 18th January, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302 & 34---Bail; grant of---F.I.R. as well as deposition of complainant revealed that accused grappled with deceased whereas co-accused had inflicted knife blow to the deceased---During course of investigation other accused who caught hold of the deceased had been let off and they had been declared innocent, whereas accused had been charge-sheeted---Accused who had held the deceased to facilitate murder by co-accused had made out a case for interference and was entitled for grant of bail.

Shahid v. The State 1994 SCMR 393; Mehmood Akhtar and another v. Haji Nazeer Ahmed and 4 others 1995 SCMR 310; Ali Shah v. The State 2002 PCr.LJ 707 and Basharat Hussain v. Ghulam Hussain and others 1978 SCMR 357 ref.

M. Shafi Muhammadi and Shahid I. Rana for Applicant.

Sardaruddin Qureshi for the State.

Badar Munir for the Complainant.

Date of hearing: 18th January, 2005.

PCRLJ 2006 KARACHI HIGH COURT SINDH 123 #

2006 P Cr. L J 123

[Karachi]

Before Ghulam Rabbani, J

ABDUL RASHEED---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous No.228 of 2005, heard on 22nd August, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 516-A & 523---Control of Narcotic Substances Act (XXV of 1997), Ss.32 & 74---Custody of vehicle on Superdari basis---Applicant for Superdari was owner of bus which was taken into custody while carrying narcotic substances---Trial against applicant was pending and it was yet to be decided whether said bus was liable for confiscation or otherwise subject to proof of absence of knowledge about commission of offence---Question of release of bus could not be considered in view of bar contained in S.74 of Control of Narcotic Substances Act, 1997---Application by applicant, was dismissed, in circumstances.

Niaz Ullah v. The State 2002 PCr.LJ 97; Abdul Hamid v. The State 2002 PCr.LJ 666; Jehanzaib Shinwari and 4 others v. The State and 5 others PLD 2002 Pesh. 87; Abdul Salam v. The State 2003 SCMR 246 and Haji Abdul Razzak v. Pakistan through Secretary, Ministry of Finance and another PLD 1974 SC 5 ref.

Suleman Habibullah for Applicant.

Muhammad Sarwar Khan, Addl. A.-G., Sindh for the State.

Date of hearing: 22nd August, 2005.

PCRLJ 2006 KARACHI HIGH COURT SINDH 144 #

2006 P Cr. L J 144

[Karachi]

Before Muhammad Afzal Soomro, J

MUHAMMAD SHAHID---Applicant

Versus

ABDUL LATEEF and others---Respondents

Criminal Miscellaneous Application No.6 of 2005, decided on 5th September, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10(2) & 8---Cancellation of bail, application for---Dismissal of application---Validity---F.I.R. which was registered against accused with delay of ten days, did not disclose name of any eye-witness as required by S.8 of Offence of Zina (Enforcement of Hudood), Ordinance, 1979 for ascertaining the fact about the act of penetration or who could support contention of complainant that Zina was actually committed by the accused---Only two witnesses had been cited during investigation who acted as Mashirs of recovery of semen stained bed-sheet, report of which was awaited---Tentatively speaking, provisions of S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, did not attract/facts enumerated in F.I.R. for the reasons that video film, copy of which was supplied to High Court, did not contain any act of accused and so also co-accused which could be defined as "Zina"---Challan had been submitted in the Trial Court and case was proceeding; in such a situation, application for cancellation of bail granted to accused by Trial Court, could not be entertained---Three grounds mentioned in S.497(5), Cr.P.C. for cancellation of bail, namely; (i) If accused misused the liberty of bail; (ii) If accused had committed same offence while remaining on bail; (iii) If accused tried to tamper with the evidence brought on record during investigation, had not been alleged against accused by prosecution or even by the applicant---Applicant/complainant having failed to make out a case for cancellation of bail granted by Trial Court to accused, his application for cancellation of bail, was dismissed.

Abdus Sattar v. Muhammad Yaqub and another 1970 SCMR 786; Muhammad Saleem and another v. The State 1988 PCr.LJ 2321; Akmal Masih v. Salamat Masih and 4 others 1988 SCMR 918; Ameena Hassan alias Tina and others v. The State 1994 PCr.LJ 1495; Irshad Ahmad Shahid v. The State 1998 PCr.LJ 1990; Mst. Shakeela v. The State 2001 PCr.LJ 43; Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585; Miandad v. The State and another 1992 SCMR 1418; Naimatullah v. Zulfiqar Ali and 3 others 1999 PCr.LJ 883; Raja Rafaqat Usmani v. Umar Farooq Abbasi and another 2002 PCr.LJ 1262 and Mst. Marium Haji and others v. Mrs. Yasmin R. Minhas and others PLD 2003 Kar. 148 ref.

Khawaja Naveed Ahmed for Applicant.

Ghulam Mustafa Memon for Respondent No. 1, Fazlur Rehman Awan for the Respondent No.2/State.

Date of hearing: 29th August, 2005.

PCRLJ 2006 KARACHI HIGH COURT SINDH 154 #

2006 P Cr. L J 154

[Karachi]

Before Rahmat Hussain Jafferi, J

ALI IMRAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.794 and M.A. No.2970 of 2005, decided on 27th September, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.392 & 34---Bail, grant of---Further inquiry---Two un-identified persons committed robbery---After arrest of accused no identification test of accused had been made before Magistrate through complainant and prosecution witnesses to identify accused to be the culprit who committed robbery---Only piece of evidence against accused was of recovery of mobile cards which accused had produced before police---Prosecution was required to connect said cards with the crime and for that, said cards should have been put to identification test through complainant and if complainant had identified same, it could have been used as a piece of evidence against accused---Proper identification of cards had not been made and no other evidence connected accused with commission of crime---Case of accused, in circumstances fell under S.497(2), Cr.P.C.---Accused being entitled to concession of bail, was admitted to bail, in circumstances.

Abdul Naeem Memon for Applicant.

Agha Zafir, A.A.-G. for the State.

PCRLJ 2006 KARACHI HIGH COURT SINDH 218 #

2006 P Cr. L J 218

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

ABDUL HAKEEM----Applicant

Versus

THE STATE----Respondent

Criminal Revision Application No.32 of 2005, decided on 29th April, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 200, 202 & 439---Revision---Necessary parties---Private complaint, dismissal of---Failure to make accused persons as party to revision---Complainant filed F.I.R., which was dismissed, thereafter he filed private complaint on the same subject-matter---Private complaint was also dismissed by Trial Court after preliminary inquiry---Complainant filed revision before High Court wherein he impleaded. only the State as respondent and accused persons were not made respondents---Plea raised by complainant was that the accused persons having no locus standi to participate in the proceedings, therefore, they were not necessary party before criminal revision---Validity---State was joined as party, which had nothing to do with the direct complaint and had already disposed of the case as B-class---Person against whom any order was to be passed must be party to the proceedings---Plea raised by complainant was violative of the provisions contained in Criminal Procedure Code, 1898---High Court refused to accept the plea of complainant on the logic that if accused persons had no locus standi to appear and contest the matter at preliminary inquiry, then at that stage they were not necessary party---Question was not whether a party had locus standi to appear at a particular stage or not but the question was whether a Court could exercise jurisdiction against the person who was not party to the proceedings---No process was to be issued against stranger and the person against whom any process was ordered to be issued must be party before the Court---Revision was dismissed in circumstances.---[Ahmed v. The State 2004 PCr.LJ 304 dissented].

Ms. Zeba Bakhtiar v. Arshad Sami Khan and 5 others 1998 SCMR 922 rel..

Ahmed v. The State 2004 PCr.LJ 304 dissented.

Nisar Ahmed Durrani for Applicant.

Date of hearing: 29th April, 2005.

PCRLJ 2006 KARACHI HIGH COURT SINDH 249 #

2006 P Cr. L J 249

[Karachi]

Before S. Ali Aslam Jafri, J

JANO alias JAN MUHAMMAD and 3 others----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.S-77 of 2005, decided on 8th March, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-A(ii), 337-F(i) & 504---Pre-arrest bail, grant of---Counsel of accused persons did not press bail application of one accused who would surrender before Trial Court as part assigned to said accused was that of causing injury on face of injured---Bail application to the extent of another accused had become infructuous because he had been arrested by police---Case of two other accused persons was distinguishable from the other accused---Delay of about more than 13 days was made in lodging F.I.R.---All provisions of P.P.C. applied to the present case were bailable except S.337-A(ii), P.P.C., which provided punishment only of five years and would not fall within prohibitory clause of S.497(1), Cr.P.C.-Said two accused persons were granted bail, whereas application of one accused was rejected as not pressed and application of another accused had become infructuous as he had been arrested.

Abdul Rasool Abbasi for Applicants.

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

PCRLJ 2006 KARACHI HIGH COURT SINDH 278 #

2006 P Cr. L J 278

[Karachi]

Before Rahmat Hussain Jafferi and Gulzar Ahmed, JJ

ABDUL LATEEF----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.91 of 2005, decided on 18th February, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Bail, grant of---Police did not show as to how, much quantity of Charas was secured from the personal search of accused---Total weight of Charas which was secured from possession of accused and compartment of motorcycle; was 490 grams---Was yet to be determined as to whether accused was the owner of motorcycle as no registration papers of motorcycle had so far been produced---Police had also not obtained any information from Registration Authorities about ownership of motorcycle---F.I.R. had alleged that small piece of Charas was recovered from possession of accused, but no exact weight of said quantity had been mentioned by prosecution---Was yet to N. determined as to how much quantity of Charas was secured from the possession of accused---Prosecution, in circumstances had no objection to grant of bail---Bail was granted to accused, in circumstances.

Azizullah M. Buriro for Applicant.

Mushtaque Ahmed Korejo for the State.

PCRLJ 2006 KARACHI HIGH COURT SINDH 292 #

2006 P Cr. L J 292

[Karachi]

Before Mrs. Qaiser Iqbal, J

KASHIF HAIDER CHOHAN (SALAWIT) and 3 others----Applicants

Versus

THE STATE----Respondent

Criminal Bail Applications No.1108 and 1141 of 2005, decided on 23rd November, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 11 & 16---Pre-arrest bail, grant of---Charge of abduction---No direct role was attributed to co-accused in the incident---Alleged abductee, who appeared in Court, had admitted contents of her affidavit in which she had exonerated accused persons from commission of crime on the basis that she had entered into Nikah with the accused in consonance with the right guaranteed to her under Islamic Law---Matter requiring consideration, pertained to allegations which were levelled against accused and were allegedly based upon mala fides, ulterior motives coupled with the loss, sustained to their honour, dignity and prestige---Question of mala fides appeared to be borne out from the record and sufficient material was available to come to the conclusion that the report had been lodged to victimize accused and in case of refusal to grant pre-arrest bail to accused, they would suffer humiliation and their dignity would be lowered in general public---When reasonable ground appeared to show that accused had not committed alleged offence, bail should not be refused or withheld merely on technical grounds.

Riaz Ahmed Goharshahi v. The State PLD 2000 Kar. 6 and Malik Mukhtar Ahmad Awan v. The State 1991 SCMR 322 ref.

Nizamuddin for Applicants.

Agha Zafir and Sardaruddin Qureshi, State Counsel.

PCRLJ 2006 KARACHI HIGH COURT SINDH 403 #

2006 P Cr. L J 403

[Karachi]

Before Ali Sain Dino Maitlo, J

ALI HASSAN and another----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.601 of 2005, decided on 2nd November, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 504, 147, 148, 149 & 109---Bail, grant of---Further inquiry---Accused was not present at the place of incident and he was confined in prison---Except for the suspicion of complainant party, investigating agency had failed to collect any direct evidence showing involvement of accused in the commission of crime---In absence of any direct evidence against accused persons it could not be said that reasonable grounds existed, for believing that accused were guilty of abetment in the commission of murder of the deceased---Matter requiring further inquiry as contemplated by subsection (2) of S.497, Cr.P.C., accused were admitted to bail.

Ahsan Ahmed Qureshi and Muhammad Ayaz Soomro for Applicants.

Mushtaque Ahmed Kourejo for the State.

PCRLJ 2006 KARACHI HIGH COURT SINDH 408 #

2006 P Cr. L J 408

[Karachi]

Before Ali Sain Dino Maitlo, J

MUHAMMAD RAMZAN and others----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.717 of 2005, decided on 22nd November, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.221, 222, 223, 225(iii) & 225-A---Bail, grant of---Accused persons being police constables were on guard duty over under-trial prisoners under treatment in jail ward of the hospital---Allegation against accused was that an under-trial prisoner escaped due to their negligence---Prima facie offence against accused persons fell under S.223, P.P.C.---Sufficient evidence though was not available with prosecution to show that accused had intentionally allowed or aided said prisoner to escape, but even offence of intentionally allowing escape fell under S.221, P.P.C., which was also bailable---Offence under S.225-A, P.P.C. which was the residuary section regarding the cases not covered by Ss.221, 222 and 223, P.P.C., was also bailable---Trial Court had rejected bail application of accused only on the ground that police had subsequently applied S.225(iii), P.P.C., but said section had no applicability to accused as it was applicable to cases of intentionally offering residence or obstruction in apprehending offenders or rescuing them from custody, but no such allegation was recorded against accused---Court was not bound by ipsi dixit of police particularly in the matters of application of proper section of law---Court being more expert in the field of law, had to apply its own mind and find out proper provision of law applicable to the facts and circumstances of a case---Offence made out against the accused being bailable, they were entitled to bail as a matter of right---Accused, accordingly were directed to be released on bail.

Safdar Ali Bhutto, Nadeem Ahmad Tunio and Muhammad Ayaz Soomro for Applicants.

Mushtaque Ahmed Abbasi, Asstt. A.-G. for the State.

PCRLJ 2006 KARACHI HIGH COURT SINDH 413 #

2006 P Cr. L J 413

[Karachi]

Before Faisal Arab, J

GHULAM ABBAS----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.795 of 2005, decided on 6th January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.419, 205 & 34---Bail, grant of---Further inquiry---Case of prosecution was that accused, who was Jailor, allowed the real accused to escape in place of his brother---Contention of accused was that he was clerk of Mukhtiarkar and was made Jailor of sub-jail by Mukhtiarkar and he was handed over custody of brother of accused who was shown to be accused and that no criminal offence was committed by him, but in fact custody of a wrong person was handed over to him--Defence plea of accused and allegations against him required further inquiry---Offence against accused also did not come within the prohibition contained in S.497, Cr.P.C.---Accused was enlarged on bail, in circumstances.

Muhammad Ayaz Soomro for Applicant.

Muhammad Ismail Bhutto, State counsel.

PCRLJ 2006 KARACHI HIGH COURT SINDH 417 #

2006 P Cr. L J 417

[Karachi]

Before Ali Sain Dino Maitlo, J

MUHAMMAD AALIM----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.614 of 2005, decided on 13th December, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---West Pakistan Arms Ordinance (XX of 1965), S.13(b)---Bail, grant of---Allegation against accused was that he, while being in custody in murder case, led to discovery of Klashnikov, allegedly used in the offence, from a heap of hay---Accused had all along remained in custody and a period of more than one year had passed---Trial had not concluded and accused was admitted to bail in murder case---Offence in question against accused did not come within the prohibitory clause of S.497, Cr.P.C. and in circumstances of case no special reasons were available for refusal of bail---Accused was admitted to bail, in circumstances.

Muhammad Ayaz Soomro for Applicant.

Mushtaque Ahmed Abbasi Asstt. A.-G.

PCRLJ 2006 KARACHI HIGH COURT SINDH 425 #

2006 P Cr. L J 425

[Karachi]

Before Maqbool Baqar, J

JAVED AHMAD----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.608 of 2005, decided on 26th October, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)-Penal Code (XLV of 1860), Ss.302, 301 & 34---Bail, grant of---Further inquiry---Case was of un-witnessed murder---Co-accused, had been implicated on the statement of complainant and other prosecution witnesses who were related to complainant and deceased---No other material was available which could connect any of accused with commission of alleged offence---Only role so far assigned to the accused was that he drove the car in which co-accused kept alleged gunny bag in which body of deceased was allegedly found---Case of accused, in circumstances required further inquiry---State Counsel, had also conceded to the grant of bail to accused---Accused, in circumstances, was admitted to bail.

Muhammad Ayaz Soomro for Applicant.

Habib Rehman Shaikh for the State.

PCRLJ 2006 KARACHI HIGH COURT SINDH 467 #

2006 P Cr. L J 467

[Karachi]

Before Gulzar Ahmed, J

ABAN --Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No. S-693 of 2005, decided on 28th December, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.342, 415, 452, 147, & 149-Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)----Bail, grant of---Further inquiry--Name of accused did not transpire in the F.I.R. and persons nominated in F.I.R. had been let off by the police on the basis of complainant's further statement recorded under S.162, Cr.P.C. where complainant had stated that he had implicated nominated persons through mistake---Incident was stated to have taken place in the night in the house of complainant who had seen eight accused persons in the bulb light and nominated four persons in the F.I.R. rest being un-identified---No reason was given by prosecution for letting off four nominated accused in F.I.R.---Recovery though had been made from accused, but recovered articles had not been identified by complainant---Only material against accused was that of identification after three days of his arrest---Wrongful involvement of accused could not be ruled out---Case against accused being of further inquiry, he was entitled to grant of bail.

Riazat Ali Saahar for Applicant.

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

PCRLJ 2006 KARACHI HIGH COURT SINDH 476 #

2006 P Cr. L J 476

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

Lt. Col. (Retd.) TARIQ LATIF----Applicant

Versus

Mst. JAMILA SULTANA and another----Respondents

Criminal Revision Application No.3 of 2005, decided on 2nd April, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 200, 202 & 439---Penal Code (XLV of 1860), S.341---Criminal Revision---Accused had been convicted by the Magistrate under S.341, P.P.C. on the complaint filed by the respondent and his sentence of one month's S.I. was suspended by the Sessions Court in appeal under S.426, Cr.P.C. and he was released on bail-Appeal filed by accused was dismissed for non-prosecution and his bail was cancelled vide the impugned order---Validity---Respondent/complainant had filed her direct complaint through her attorney which was not maintainable in law---Trial of accused before the Magistrate being without lawful authority, his conviction and sentence were illegal---Trial Court was obliged to examine the complainant upon oath under S.200, Cr.P.C. and by not doing so it. had committed an illegality---Inquiry conducted by the Trial Court under S.202, Cr.P.C. was also not properly based---Direct complaint having been filed by an unauthorized person, there was no need to remand the matter to the Appellate Court to decide the appeal on merits---Proceedings against the accused were quashed in circumstances.

The Crown v. Balmokand and others Indian Law Reports 1928 p.678 ref.

Mehmood A. Qureshi for Applicant.

Rizwan H. Nadeem for Respondent No.1.

2006 P Cr. L J 513

[Karachi]

Before Mrs. Qaisar Iqbal, J

ABDUL WAHID KATH----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.28 of 2006, decided on 9th January, 2006.

Criminal Procedure Code (V of 1898)---

---S. 497(2)-Emigration Ordinance (XVIII of 1979), S.17(i)/22(b)---Bail, grant of---Accused, according to F.I.R., had only arranged for a ticket in the capacity of being the owner of the Travelling Agency of the Airline---Offences with which the accused was charged were not supported by the evidence on record---Case of accused, thus, required further probe as contemplated by subsection (2) of S.497, Cr.P.C.---Accused was admitted to bail accordingly.

Ms. Rahat Ehsan along with Mehmood A. Qureshi for Applicant.

Mehmood Alam Rizvi, Standing Counsel.

PCRLJ 2006 KARACHI HIGH COURT SINDH 518 #

2006 P Cr. L J 518

[Karachi]

Before Muhammad Sadiq Leghari, J

Ch. MUHAMMAD ASHRAF----Applicant

Versus

THE STATE----Respondent

Criminal Miscellaneous Application No.179 of 2005, decided on 15th December, 2005.

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

----Ss. 190 & 173---Cognizance of offences by Magistrate---Order passed must be judicious and just order and not an arbitrary order---Magistrate, no doubt, is competent to pass any order on the report submitted by the Investigating Officer and take cognizance of the offence or even order further investigation into the matter---However, any order means judicious and just order and not an arbitrary order with but reasons and justification-Magistrate is required to consider the report under S.173, Cr.P.C. in the light of the material collected during the investigation and then pass an order---Even on unjustified reports submitted by the Investigating Officers, .Magistrates are not expected to disagree with them by a non-speaking order without any indication about considering the material collected during investigation---Power conferred upon the Magistrate although is administrative in nature and the order passed by him is also an administrative order, yet the same has to be just and judicious and not an arbitrary order.

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

---Ss. 561-A, 190 & 173---Penal Code (XLV of 1860), Ss.447, 511 & 506/34---Quashing of order---Impugned order passed by the Magistrate on the report submitted by the Investigating Officer under S.173, Cr.P.C. was surely an arbitrary order, as it did not indicate that the Magistrate, while passing the same had considered the material collected during investigation, nor did it contain any reason for disagreeing with the opinion of the Investigating Officer---Direction issued to the Investigating Officer by the Magistrate for submission of challan also was not the requirement of law---If the Investigating Officer had not submitted the report on the pro forma specified by the Government, Magistrate could ask him to submit the report on such pro forma, before entertaining it and passing an order---However, the direction for submission of challan by itself would not affect the legality of further proceedings---Even an administrative order if found arbitrary could be quashed by High Court in exercise of its inherent jurisdiction under S.561-A, Cr.P.C.---Impugned order was consequently quashed with the direction to the Magistrate to pass a proper order on the report submitted by the Investigating Officer after having considered the same in accordance with law.

Hussina Ahmed's case 1997 SCMR 1503 ref.

----S. 561-A---Inherent powers of High Court---Administrative orders subservient to such power---Administrative orders, if found arbitrary, can be quashed by High Court in exercise of its inherent jurisdiction under S.561-A, Cr.P.C.

Hussina Ahmed's case 1997 SCMR 1503 ref.

Mahmood A. Qureshi for Applicant.

Sardaruddin Qureshi for the State.

PCRLJ 2006 KARACHI HIGH COURT SINDH 526 #

2006 P Cr. L J 526

[Karachi]

Before Sarmad Jalal Osmany and Azizullah M. Memon, JJ

MU HA MMAD----Appellant

Versus

THE STATE----Respondent

Confirmation Case No.10 and Jail Special A.T.A. Appeal No.100 of 2000, decided on 14th June, 2005.

(a) Criminal trial---

----Burden of proof---Prosecution has to prove its case beyond reasonable and probable doubt against the accused on the basis of its own evidence and not on the basis of any weakness or defect in the defence theory.

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

----Ss. 302/396 & 392---Anti-Terrorism Act (XXVII of 1997), S.7---Appreciation of evidence---Case of two versions---Duty of Court---Onerous duty is cast upon the Court to decide as to which of the two versions is correct and plausible, supported by the evidence and circumstances on record and to ascertain the truth or otherwise of the two versions---Version found more plausible and nearer to the truth is to be accepted.

Mukhtar Ahmed v. The State 2003 SCMR 1374 ref.

----Ss 302, 396 & 392---Anti-Terrorism Act (XXVII of 1997), S.7---West Pakistan Arms Ordinance (XX of 1965), S.13-D---Appreciation of evidence---Eye-witnesses having no enmity or hostility against the accused had fully implicated him for having criminally trespassed into the factory premises with other culprits duly armed with pistols, to commit robbery of salary amount which was being disbursed by them to the labourers of the factory and for actually having committed such robbery---Ocular testimony of natural witnesses inspired confidence---Presence of accused at the scene of incident had been established by the bullet injury received by him during the occurrence, which he had failed to explain and the defence plea taken by him of having remained standing outside the factory premises stood falsified---Prosecution evidence having inspired confidence, delay per se in lodging the F.I.R. was not fatal to the case of prosecution---Accused having not examined any person in support of his defence plea, the same could not be said to have been validly raised---Conviction of accused under S.392, P.P.C. was maintained in circumstances, but his sentence of ten years' R.I. thereunder was reduced to seven years' R.I.---However, accused was not proved to have committed the murder of the "Chowkidar" and the recovery of the unlicensed fire-arm from his possession was not free from doubt---Accused was consequently acquitted of the charges under Ss.302 & 396, P.P.C., S.7 of the Anti-Terrorism Act, 1997 and S.13-D of the Arms Ordinance, 1965.

Mukhtar Ahmed v. The State 2003 SCMR 1374; 1995 SCMR 127; 1996 SCMR 167; PLD 2004 Kar. 201; PLD 2004 Kar. 644; 2005 MLD 246; 2005 MLD 323; 1995 SCMR 1345; 2000 PCr.LJ 1360; 2003 SD 875 and 2003 SD 884 ref.

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

----Ss. 302, 396 & 392---Anti-Terrorism Act (XXVII of 1997), S.7---West Pakistan Arms Ordinance (XX of 1965), S.13-D---Appreciation of evidence---Principles---No fatal effect of delayed F.I.R. in the presence of confidence inspiring prosecution evidence---Where the evidence produced by the prosecution inspires confidence, the delay per se in lodging the F.I.R. would not be fatal to the case of prosecution.

Mehmood A. Qureshi for Appellants.

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

Dates of hearing: 3rd, 10th and 11th March, 2005.

PCRLJ 2006 KARACHI HIGH COURT SINDH 542 #

2006 P Cr. L J 542

[Karachi]

Before Faisal Arab, J

WAJID ALI----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.445 of 2005, decided on 5th January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302---Juvenile Justice System Ordinance (XXII of 2000), S.10(7)(a)---Grant of bail to accused on ground of his being a juvenile---Further inquiry-Accused had sought bail on ground of hardship claiming to be a juvenile---Accused, who was proved to be minor at the time of commission of offence, was being tried as juvenile under Juvenile Justice System Ordinance, 2000---Accused was in jail exactly for four and half years and in said period of his custody, about four years' period could safely be attributed to the delay which had not been caused by accused or persons acting on his behalf---Sole witness of alleged incident, had filed his affidavit before the Court, in which he had stated that he had not seen anybody killing the deceased and that he had not made any statement before police or before any Magistrate with regard to the presence of accused at the scene of the crime---Case against accused, in circumstances, had become a case of further inquiry---Accused, in circumstances was enlarged on bail, accordingly.

Raja Amanullah and another v. The State 2002 MLD 1817; Attaullah v. The State 2004 PCr.LJ 326 and Waseem Ullah v. The State 2004 SCMR 860 ref.

Asif Ali Abdul Razak Soomro for Applicant.

Muhammad Ismail Bhutto, State Counsel.

Ahsan Ahmed Qureshi for the Complainant.

PCRLJ 2006 KARACHI HIGH COURT SINDH 612 #

2006 P Cr. L J 612

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

ZAFAR ALI and another----Applicants

Versus

THE STATE----Respondent

Criminal Bails Nos.1189 and 1292 of 2005, decided on 17th January, 2006.

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

-----S. 498---Penal Code (XLV of 1860), Ss.324/353/34---Pre-arrest bail, grant of---In case of availability of concurrent jurisdiction with two forums, lower Court was required to be moved in the first instance, but it was not an inflexible rule, because in an exceptional case the jurisdiction of superior Court could be invoked---Present application for bail before arrest being one of such exceptional cases, the same was directly entertained by High Court---F.I.R. had been lodged after 21 hours of the incident in which the only three present accused were named and the names of other accused were not mentioned therein---Accused were not armed with ally weapon, as such allegation of firing against them appeared to be doubtful at this stage---Accused were found to be confined at the police station by the raiding Magistrate, which had made the prosecution story with regard to their presence at the time of incident doubtful---Encounter between the accused and the police allegedly continued for sufficient period of time, but nobody from either side had received any injury, though rocket launchers were also stated to have been fired---Interim pre-arrest bail already granted to accused was confirmed ill circumstances.

Rais Wazir Ahmad v. State 2004 SCMR 1169; Sh. Zahoor Ahmad v. The State PLD 1974 Lah. 256; The State v. Malik Mukhtar Ahmad Awan 1991 SCMR 322; Rafiq Ahmad Blanc v, The State 1995 PCr.LJ 785; Agha Muhammad Jamil v. The. State 1997 PCr.LJ 901; Shamrez Khan v. The State 1999 PCr.LJ 74 and Muhammad Firdaus v. State 2005 SCMR 784 ref.

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

----S. 498---Pre-arrest bail---Direct approach to High Court---Practice and procedure---An accused normally can approach in the first instance the Sessions Court for bail before arrest as propriety so demands, but it is not an inflexible rule---Depending upon the compelling circumstances an accused can approach the High Court directly by invoking its concurrent jurisdiction---high Court if entertains such bail application and grants ad interim bail to the accused, then it should dispose of the same on merits instead of dismissing it on technical grounds.

Rais Wazir Ahmad v. State 2004 SCMR 1169; Sh. Zahoor Ahmad v. The Stale PLD 1974 Lah. 256; The State v. Malik Mukhtar Ahmad Awan 1991 SCMR 322; Raflq Ahmad Jilani v. The State 1995 PcrLJ 785; Agha Muhammad Jamil . The State 1997 PCr.LJ 901 and Shamrez Khan v. The State 1999 PCr.LJ 74 ref

Fareed A. Dayo for Applicants along with applicants in person.

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

PCRLJ 2006 KARACHI HIGH COURT SINDH 625 #

2006 P Cr. L J 625

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

LUQMAN RAJ1 ADEWANMI----Applicant

Versus

THE STATE----Respondent

Criminal Bail No.1 101 of 2005, decided on 19th January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9---Bail, refusal of---Bail was sought on the ground that Trial Court had not complied with the direction of Supreme Court to examine the complainant within a period of two months---Circumstances of the case showed that Trial Court had been trying to comply with the said order of the Supreme Court, but was unable to do so, as the attendance of co-accused was not being procured-Trial Court had now made a correct approach to bifurcate the case of accused to decide the same expeditiously---Trial Court was consequently directed to bifurcate the case of accused as per its own report and comply with the order of Supreme Court within the required period---Bail application was disposed of accordingly.

Rana M. Shamim for Applicant.

Sycd Mehmood Alam Rizvi, Special Prosecutor for ANF.

PCRLJ 2006 KARACHI HIGH COURT SINDH 639 #

2006 P Cr. L J 639

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

Dr. KHALID MOIN and others----Appellants

Versus

THE STATE and others----Respondents

Special A.T. Appeals Nos.69, 70, 71. 75 and Special A.T. Acquittal Appeal No.73 of 2002, decided on 18th January, 2006.

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

----S. 365-A/34---Anti-Terrorism Act (XXVII of 1997), S.6(2)(e)---Appreciation of' evidence---Complainant admittedly despite having the knowledge of all the facts, did not disclose the same in the F.I.R.---No doubt, all the details were not required to be necessarily given in the FIR., but at least major and important points were required to be mentioned therein---Prosecution witnesses including the complainant and the abductee had made improvements in their statements after consultations so as to fit in the circumstances of the case---Statement of the complainant being a hearsay evidence was inadmissible in evidence---Testimony of the aforesaid witnesses having been improved at the trial, required independent corroboration which was lacking in the case---Delay of two and a half months in recording the statements of' the said prosecution witnesses by the police under S.161, Cr.P.C.; had not been' explained by the prosecution, nor the same had been proved on record, which showed consultations between them for improving their case slowly and gradually and giving full details of the incident---Identification parade being only a corroborative piece of evidence was not enough for basing conviction and the same would lose its effect when the substantive evidence stood disbelieved---Incriminating recovery of mobile phone from the accused was not proved to be connected with the crime---Accused were acquitted in circumstances.

Muhammad Khan v. Moula Bakhsh 1998 SCMR 570; Muhammad Sadiq v. State PLD 1960 SC 223; Qabil Shah v. State PLD 1960 Kar. 697; Jalal v. State PLJ 1974 Cr.C. (Kar. 244; Saeed Muhammad Shah v. State 1993 SCMR 550; Asfandyar Wali v. State PLD 1978 Pesh. 38; Muhammad Rafiq v. State 1974 PCr.LJ 391; Aamir v. State 1968 Lah. 49; Shahbaz Khan Jakhrani v. Lal Beg Jakhrani 1984 SCMR 42; Liaqat All v. State 1992 SCMR 372; Ali Akhtar Hussain v. State 1972 SCMR 40 and Sahib Gul v. Ziarat Gul 1976 SCMR 236 ref.

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

----S. 154---Information in cognizable cases---First Information Report---All the details of the incident although are not required to be given in the F.I.R. but at least major and important points are required to be mentioned therein.

----Art. 140---Cross-examination as to previous statements in writing---Procedure to prove contradictions elaborated---Correct procedure for obtaining contradictions of a statement recorded in Court from the statement recorded by the police under S.161, Cr.P.C. is that the attention of the witness is drawn towards the said portion of the statement and if the witness admits the said portion then an explanation is required to be obtained from the witness about the contradictory, statement made by him in the Court from his 161, Cr.P.C. statement---If the witness denies, then the same question is required to be asked from the Investigating Officer who recorded such statement to ascertain whether he had recorded such statement and whether or not the witness had stated such facts in the said statement---After that, such contradiction is required to be exhibited in evidence and then it call be used while assessing the evidence of the said witness.

(d) Practice and procedure---

----If any act is required to be done in a particular manner, then it should be done in that manner; otherwise it should not be done at all.

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

----S. 365-A/34---Anti-Terrorism Act (XXVII of 1997), S.6(2)(e)---Appreciation of evidence---Corroboration----Principles---Where a piece of evidence requires corroboration, then it cannot corroborate another piece of evidence which also requires corroboration.

Ali Akhtar Hussain v. State 1972 SCMR 40 ref.

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

---S. 161---Examination of witnesses by police---Delayed examination---Effect---If the police did not record the statement of the witness immediately and delay was caused in recording the same, then a reasonable explanation is required to be furnished by the prosecution for such delay---If a reasonable explanation is furnished then the evidence of the witness can be relied upon, otherwise such delay would affect the veracity of the witness and his evidence is to be disbelieved and discarded.

Muhammad Khan v. Moula Bakhsh 1998 SCMR 570; Muhammad Sadiq v. State PLD 1960 SC 223; Saeed Muhammad Shah v. State 1993 SCMR 550 and Sahib Gul v. Ziarat Gul 1976 SCMR 236 ref.

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

---S. 365-A/34-Anti-Terrorism Act (XXVII of 1997), S.6(2)(e)---Appreciation of evidence--- Identification parade--- Principles---Identification parade being a corroborative piece of' evidence can only corroborate the substantive evidence---When substantive evidence is disbelieved, then conviction cannot be based on corroborative evidence.

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

----Preamble, Ss.154 & 157(1)(b)---F.I.R., sealing of---Criminal Procedure Code, 1898 does not contain any provision for sealing the F.I.R.---Police under S.157(1)(b), Cr.P.C. is not empowered to seal the F.I.R.---Sealing of F.I.R. by the police is illegal and against the law.

A.Q. Halepota, Mahmood A. Qureshi and Nihal Hashmi for Appellants (in Special A.T. Appeals Nos.69 to 71 and 75 of 2002).

Muhammad Ashraf Kazi for Appellants (in Special A.T. Acquittal Appeal No.73 of 2002).

Choudhry Iftikhar for Respondent.

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

Date of hearing: 29th November, 2005.

PCRLJ 2006 KARACHI HIGH COURT SINDH 728 #

2006 P Cr. L J 728

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

KHURRAM MUSHTAQ and others-----Appellants

Versus

THE STATE------Respondents

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

---Ss. 365-A & 302(b)---Anti-Terrorism Act (XXVII of 1997), Ss.7(c) & 7(a)---Appreciation of evidence---Dying declaration made by the deceased abductee before his death was not supported on its material particulars by any other piece of evidence---None of the prosecution witnesses knew the accused by name or by face, thus, identification of accused by just taking their names by the deceased was not enough in the absence of proof that the accused were the same persons who were seen by the deceased at the time of incident---Prosecution witness having not possibly seen the faces of the accused clearly in the car, identification test held, after many months of the incident, was highly doubtful---Even otherwise, identification test being a corroborative piece of evidence, it had lost its full effectiveness as the substantive evidence in the case had been disbelieved---Prosecution witnesses had exaggerated and improve the story so as to fit in the circumstances of the case, which had remained uncorroborated and their evidence could not be safely relied upon for identifying the accused-Presence of witnesses at the crime spot was not established through any independent and reliable source--Identity of the person seen by the witness being taken in the car in an unconscious condition having not been proved, he could not be connected with the deceased abductee--Prosecution witness had strong motive for false implication of accused in the case---Deceased was not in a fit condition to make a statement in the hospital-Delay of more than three months in lodging the F.I.R. had not been sufficiently explained by the prosecution and the possibility of the same having been lodged after due consultation could not be ruled out-Prosecution evidence was insufficient, untrustworthy and unreliable---Accused were acquitted on benefit of doubt in circumstances.

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

--Ss. 365-A & 302(b)---Anti-Terrorism Act (XXVII of 1997), Ss.7(e) & 7(a)-Appreciation of evidence-Identification test-Principles--Identification test is a corroborative piece of evidence---When substantive evidence is disbelieved, then corroborative evidence loses its full effectiveness.

Azizullah K. Shaikh for Appellants (in Special A.T.A. No.39 of 2004).

M.R. Syed for Appellants (hi Special A.T.A. No.34 of 2005).

Kh. Naveed Ahmed for Appellant (in Special A.T.A. No.35 of 2005).

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

Date of hearing; 14th December, 2005.

PCRLJ 2006 KARACHI HIGH COURT SINDH 798 #

2006 P Cr. L J 798

[Karachi]

Before Sarmad Jalal Osmany and Amir Hani Muslim, JJ

PATHAN LASHARI and 2 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.D-72 of 2003, decided on 6th March, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Appreciation of evidence---Main accused had been charged for having fired at the deceased as a result of which he died---Prosecution story was supported by the deposition of complainant and other eye-witnesses---Motive of murder was stated to be the earlier murder of co-accused's brother at the hands of brother of deceased---Depositions of eye-witnesses were corroborated through recoveries of a spade stated to be in the hands of deceased, a torch belonging to complainant and six empties from the scene as well ,as blood stained earth---Post-mortem report of deceased disclosed that he received a single bullet injury on his right thigh which had ruptured femoral artery and vein and so also the right femur was fractured which resulted in death of deceased due to shock and haemorrhage---One bullet was recovered from his body---According to prosecution witness who along with other prosecution witness had arrived at the scene upon hearing the gun fire, he had identified accused with the help of a torch---Admittedly though, a number of villagers had come to the scene at the sound of gun fire, but not a single independent witness was examined by the police---Enmity admittedly existed between the parties, therefore, prosecution witnesses required independent corroboration, more so as all prosecution witnesses were related inter se---Had not been explained as to how six empties of Kalashnikov were found at the scene when according to complainant only one shot was fired by accused---Neither the empties recovered at the scene nor bullet found in deceased's body were sent for any ballistic test in order to confirm whether those were used in the recovered Kalashnikov rifle---Presence of complainant and eye-witnesses at the scene was also doubtful---Such contradictions and shortcomings in the prosecution case, had rendered same doubtful, benefit of which must go to the accused---Medical evidence alone was insufficient to record a conviction of accused since same was only corroborative in nature---Main accused, in circumstances was acquitted giving him benefit of doubt---Main accused having been acquitted co-accused who were also on same footing were also acquitted, especially when they were not attributed any overt act---Mere presence of co-accused at the scene, was insufficient to convict them on the theory of common intention/vicarious liability.

Niaz Ahmed v. The State 2000 SCMR 1593; Muhammad Iqbal v. Abid Hussain 1994 SCMR 1928; Zafar Hayat v. State 1995 SCMR 896; Muhammad Shareef v. State 1997 SCMR 866; Muhammad Achar v. State PLD 1990 Kar. 314; Muhammad Ashraf v. State 1998 SCMR 279; Atilt Muhammad v. State 1995 SCMR 599; Mehrban v. Abdul Hameed PLD 1989 SC 117; State v. Muhammad Shareef 1995 SCMR 635; Abdul Hussain v. State 2003 PCr.LJ 1847; Hassandin v. Muhammad Mushtaq NLR 1978 Criminal 636; Hassan v. State 1969 SCMR 454; Muhammad Ishaq v. State 2002 PCr.LJ 102; Doulat v. State 1980 SCMR 216 and Muhammad Khan v. State PLJ 2000 SC 1041 ref.

Abdul Razzak Soomro for Appellants.

Muhammad Mahmood S. Khan Yousfi, A.A.-G. for the State.

Date of hearing: 24th August 2005.

PCRLJ 2006 KARACHI HIGH COURT SINDH 818 #

2006 P Cr. L J 818

[Karachi]

Before Sarmad Jalal Osmany, J

ABDUL MAJEED WPC----Applicant

Versus

THE STATE----Respondent

Criminal Bail Applications Nos.305 and 220 of 2004, decided on 15th December; 2005.

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

----S. 497---Penal Code (XLV of 1860), S.302---Bail, refusal of---Prima facie, enough evidence being available to connect both the accused to the crime in question, no case for grant of bail, was made out--Mere factum that judicial inquiry had not been held, would not defeat prosecution case in the facts and circumstances of the case---Accused prima facie having been found to be connected with the crime in question, there was no reason to grant him bail only on the ground that direct complaint should proceed first.

Qadir Bux v. D.M. Dera Ghazi Khan PLD 1977 Lah. 1044; Ghulam Hussain v. D.M. Muzaffargarh 1992 PCr.LJ 1870; Ansar Ali v. State 2003 PCr.LJ 1957; Muhammad Afzal v. State 2005 YLR 1812; Muhammad Riaz Munna v. State 1993 SCMR 1321; Gulzaman v. State 1999 SCMR 1271; Khamiso v. State 2002 MLD 783; Piral v. State 2003 MLD 1698; Muhammad Javeed v. State 1995 SCMR 1178; Muhammad Rahim v. Baita Gul PLD 1994 SC 86; Tanveer Ahmed v. Muhammad Saqib PLD 1994 SC 88; Qadir Bux v. D.M. Dera Ghazi Khan 1974 SCMR 409 and Shoaib Mehmood Butt v. Iftikharul Haq 1996 SCMR 1845 ref.

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

----Ss. 174 & 176---Death in custody of police---Inquiry by Magistrate into cause of death---When any person died while in custody of the police, the nearest Magistrate, empowered to hold inquiry, would, and in any other case mentioned in S.174(1)(a)(b)(c), Cr.P.C., any Magistrate so empowered, could hold an inquiry into the cause of death, either instead of or in addition to the investigation, held by the police officer, etc.---Said inquiry was in addition to investigation' held by the police officer and the object was to provide a check on police inquiry and to allay the fears in the mind of the public by reason of unnatural death---Non-holding of enquiry, however, was not fatal unless a visible failure of justice had occurred.

S. Mushtaque Hussain Shah for Applicant (in Criminal Bail Application No.305 of 2004).

Ghulam Muhammad Khan Durrani for Applicant (in Criminal Bail Application No.220 of 2004).

Nemo for the Complainant.

M. Mehmood Khan Yousifi, A.A.-G.

Date of hearing: 14th October, 2005.

PCRLJ 2006 KARACHI HIGH COURT SINDH 828 #

2006 P Cr. L J 828

[Karachi]

Before Ali Sain Dino Metlo, J

AKHTIAR and another----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.429 of 2005, decided on 19th December, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss.15, 17 & 22---Penal Code (XLV of 1860), Ss.324, 337-A(i) & F(i) & 353---Bail, refusal of---Delay in registration of F.I.R., had sufficiently been explained---In the matter of Harabah as defined in S.15 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, every person concerned in the commission of offence would be responsible for it, moreover under S.22 of said Ordinance, punishment for attempt to commit Harabah was 10 years---Offence against accused, in circumstances, by all means, would come within prohibitory clause of S.497, Cr.P.C. and it could not be assumed that seriously wounded victim would falsely implicate accused in place of real culprit simply because their brother had complained to Ombudsman against some police officials few years back---Accused being not entitled to bail, their bail application was dismissed.

2004 Pakistan Current Criminal Rulings 1154 and 2005 Pakistan Current Criminal Rulings 919 ref.

Jai Jai Veshnu Mange Ram for Applicants.

Abdul Hakeem Khan Bijarani and Abdul Rehman Bhutto for the Complainant

Mushtaque Ahmed Abbasi, Asstt. A.-G. for the State.

PCRLJ 2006 KARACHI HIGH COURT SINDH 871 #

2006 P Cr. L J 871

[Karachi]

Before Muhammad Afzal Soomro, J

HANIF----Applicant

Versus

THE STATE----Respondent

Criminal Bail No.980 of 2005, decided on 23rd January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302 & 34---Bail, grant of---State Counsel had conceded to the grant of bail to accused on the ground of hardship owing to delay in trial and admitted that accused was not being produced regularly before the Trial Court and except three dates of hearing, almost on all dates he was not produced and due to that no substantial progress could be made in the case---Case diaries prima facie showed that case had not proceeded properly before the Trial Court---Accused was admitted to bail, in circumstances.

Barkhurdar v. Liaquat Ali PLD 1977 SC 434 and Riasat Ali v. State PLD 1977 SC 480 ref.

Muhammad Hanif Samma for Applicant.

Sohail Jabbar for the State.

Ejaz Khattak for the Complainant.

Date of hearing: 5th December, 2005.

PCRLJ 2006 KARACHI HIGH COURT SINDH 883 #

2006 P Cr. L J 883

[Karachi]

Before Muhammad Afzal Soomro, J

MUHAMMAD ASIF----Applicant

Versus

THE STATE----Respondent

Criminal Bail No.1060 of 2005, decided on 7th January, 2006.

Criminal Procedure Code (V of 1898)---

---S. 497---Penal Code (XLV of 1860), Ss.302, 324, 148, 149 & 34---Bail, grant of---Name of accused did not appear in F.I.R. and no specific role was attributed to him---Prosecution witnesses, whose statements had been recorded under S.164, Cr.P.C., had exonerated accused from commission of crime---Case for grant of bail, having been made out, accused was admitted to bail, in circumstances.

Ghulam Rasool v. State 2002 MLD 7; Ghulam Rasul v. State 1982 SCMR 440; Dr. Muhammad Aslam v. State 1993 SCMR 2288; Aurangzaeb v. State 2003 PCr.LJ 1728 ref.

Asif Ali Pirzada for Applicant.

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

Date of hearing: 3rd January, 2006.

2006 P Cr. L J 1004

[Karachi]

Before S. Ali Aslam Jafri, J

SARDAR AHMED----Applicant

Versus

THE STATE----Respondent

Criminal Miscellaneous Application No.S-6 and M.A. 35 of 2005, decided on 25th January, 2005.

Criminal Procedure Code (V of 1898)---

----S. 514---Forfeiture of bond---Application against---Applicant who stood surety for accused, had urged that he had offered himself as surety purely on humanitarian ground and that he being a poor man, could be excused---Validity---Poverty of a surety was no ground---Remedy was available to applicant under the law, to recover amount paid by him as surety from said accused by taking recourse to specific provisions of Contract Act, 1872---Impugned order did not show that any illegality or irregularity was committed by the Trial Court or the revisional court while directing applicant/surety to deposit surety amount---Application of surety was dismissed and he was allowed to deposit amount of surety in instalments.

Muhammad Iqbal Kalhoro for Applicant.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1009 #

2006 P Cr. L J 1009

[Karachi]

Before Ata-ur-Rehman, J

Mst. RUKHSANA----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-555, M.As. Nos. 1228 and 1229 of 2004, decided on 6th September, 2004.

Criminal Procedure Code (V of 1898)---

----S. 498---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail before arrest, grant of---Accused was earlier granted bail after arrest by the Trial Court---Accused kept on attending the Trial Court for some time, but later on she was called absent and non-bailable warrants were issued against her and notice was also issued to her surety---Subsequently accused surrendered herself before the Court of Session and her bail application was transferred to Sessions Judge at place 'D' where her application was dismissed---Validity---Accused had remained absent earlier on account of her illness and her earlier surety bond had already been forfeited---Ends of justice would meet if accused was allowed bail on her furnishing fresh surety bonds in specified amount.

Abdul Rasool Abbasi for Applicant.

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

PCRLJ 2006 KARACHI HIGH COURT SINDH 1015 #

2006 P Cr. L J 1015

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

GHULAM SHABBIR----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-167 of 2005, decided on 12th April, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-H(ii), 380 & 457---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14---Bail, refusal of---Accused was nominated in F.I.R. with specific role---Contents of F.I.R. recorded that when accused refused to return stolen cattle to complainant, complainant lodged F.I.R. after waiting for a period of 14 days---Stolen cows were recovered from the house of accused in presence of private persons who acted as Mashirs---No case for bail having been made out, bail application was dismissed.

Shafi Muhammad Memon for Applicant.

Riazuddin Siddiqui, State Counsel.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1020 #

2006 P Cr. L J 1020

[Karachi]

Before Muhammad Moosa K. Leghari, J

MUHAMMAD and another----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.121 of 2006, decided on 17th March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.219, 420, 468, 471 & 34---Prevention of Corruption Act (II of 1947), S.5(2)---Pre-arrest bail, confirmation of---Rule of propriety demanded that in normal course, a person against whom a criminal case had been registered, should approach, the Court having jurisdiction for seeking bail before arrest and High Court should be slow in directly entertaining applications for pre-arrest bail, unless accused satisfied the Court that exceptional and compelling circumstances existed to justify exercise of concurrent jurisdiction in bail matter---Circumstances and the grounds raised, were adequate enough to justify invocation of the concurrent jurisdiction in the present case---No allegation was put forth that accused were incharge or in custody of relevant record or had any authority or access to enable them to prepare any such illegal or bogus document to benefit themselves---Besides, the civil suit in which the order for registration of F.I.R. was passed, was still pending and would be decided after entire evidence was recorded, till such time, the involvement of accused in commission of offences of fraud and forgery could not be presumed---Case in circumstances called for further inquiry---Interim bail granted to accused, was confirmed, in circumstances.

Rais Wazir Ahmed v. The State 2004 SCMR 1167 ref.

Muhammad Ashraf Kazi for Applicant.

Muneer Ahmed Khawaja for the State.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1028 #

2006 P Cr. L J 1028

[Karachi]

Before Mrs. Yasmin Abbasey, J

GULAB and 2 others----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.S-151 of 2006, decided on 14th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.337-F(vi), 337-F(v), 337-A(i), 337-A(ii), 337-F(1), 147, 148, 149 & 403---Bail, grant of---Further inquiry---Excepting one accused, no specific role had been assigned to other accused---Blow inflicted on complainant's head, though was on vital part of his body, but as per medical report it was Shajjah-i-Khafifah with no exposure of bone---Contents of F.I. R. revealed that other accused inflicted Lathi blows to injured, but who caused that injury, was not appearing therein---Allegations against accused persons were of general nature and no specific injury sustained by the victim, was assigned to any particular accused--Medical report was also not on record to find out number of injuries received by victim---Court , in circumstances could not go beyond the facts of the case and material available on record, which had made out a case of further inquiry---Accused, were enlarged on bail, in circumstances.

Abdul Rasool Abbasi for Applicants.

Anwar Hussain Ansari for the State.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1033 #

2006 P Cr. L J 1033

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

ABDUL JABBAR alias ARBELO alias MOOSO and another---- Applicants

Versus

THE STATE----Respondent

Criminal Bail Applications Nos.145 and 146 of 2004, decided on 27th April, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 353, 397, 427, 147, 148 & 149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail, grant of---Notwithstanding the fact that incident of highway dacoity took place, but subsequent proceedings were not free from doubt and consequently, accused, who were entitled to benefit of doubt even at bail stage, were granted bail, in circumstances.

Muhammad Iqbal Kalhoro for Applicants.

Anwar H. Ansari for the State along with Investigating Officer Gul Sher.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1034 #

2006 P Cr. L J 1034

[Karachi]

Before Muhammad Moosa K Leghari and Shamsuddin Hisbani, JJ

GHULAM QADIR----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.D-77 of 2005, decided on 22nd December, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Interim pre-arrest bail, confirmation of---Accused was not apprehended at the spot---Name of accused was disclosed by one of co accused--Case of accused, in circumstances called for further inquiry---Interim pre-arrest bail granted to accused was confirmed, in circumstances.

Riazat Ali Sahar for Applicant.

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

Date of hearing: 1st November, 2004.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1039 #

2006 P Cr. L J 1039

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

HAZOOR BUX----Applicant

Versus

THE STATE----Respondent

Criminal Bail Applications Nos.442 of 2004 and 501 of 2004, decided on 1st November, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10 & 11---Bail, grant of---Further inquiry---Both girls (victims) were neither recovered from the custody of accused nor they had alleged commission of Zina in their statements under Ss.161 and 164, Cr.P.C.---Both girls, after recording their statements under S.164, Cr.P.C. were handed over to their parents---Medical report of alleged victim girls, revealed that there was no mark of violence on their person to assume that both of them were subjected to sexual intercourse by accused forcibly---Was yet to be determined at the trial whether accused had committed offence of Zina as alleged by prosecution---Medical evidence about the commission of Zina was in conflict with the evidence of both the victim girls; as both were examined by Medico-legal section of Hospital and their hymen was not found intact and both the girls admitted two fingers easily---Both the victims appeared to be used to have illicit relations before the registration of F.I.R. and there was sign of incomplete abortion by one of the victim girls---Case of further inquiry having been made out in favour of accused as contemplated under S.497(2), Cr.P.C., they were admitted to bail, in circumstances.

Muhammad Azhar Nadeem v. The State 2002 PCr.LJ 12; Qari Nazeer and 2 others v. The State 2003 PCr.LJ 884 and Amanullah v. The State 1993 SCMR 1806 ref.

Abdul Sattar Chandio for Applicants.

Muhammad Iqbal Kalhoro for the Complainants.

Muhammad Azim Panhwar for the State.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1051 #

2006 P Cr. L J 1051

[Karachi]

Before Muhammad Afzal Soomro, J

MUHAMMAD SALLEH and another----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.66 of 2006, decided on 27th March, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 498, 498-A & 497(2)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Penal Code (XLV of 1860), 5.215---Bail before arrest, grant of---Further inquiry---Perusal of F.I.R. had shown that allegation against accused was o1 receiving "Bhung Money" which offence at the most was punishable up to two years---Complainant had filed affidavit in the Court of Sessions Judge exonerating accused from commission of offence---Ultimate conviction of accused had been doubtful, in circumstances---Co-accused had been released from the charge---Mere absconsion of accused , was no ground to refuse him bail, if he was otherwise entitled to same on merits---Allegation of receiving 'Bhung Money' attributed to accused, would not come within prohibition contained in S.497, Cr.P.C. and in view of affidavit of complainant, case against accused required further inquiry---Accused having been able to make out a case of bail, they were admitted to bail before arrest, accordingly.

Muneer Hussain Khichi for Applicants.

Muhammad Ismail Bhutto for the State.

Date of hearing: 20th March, 2006

PCRLJ 2006 KARACHI HIGH COURT SINDH 1060 #

2006 P Cr. L J 1060

[Karachi]

Before Mushir Alam, J

ADAM S.I.P.----Appellant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-754 of 2005, decided on 24th January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Police Order (22 of 2002), Art.155---Bail before arrest, grant of---Allegations against accused, who was senior police officer, was that he, while investigating a case under S.302, P.P.C., had shown negligence in performance of his duty in accordance with law, rules and regulation and delayed sending of the case property for 10 months and 15 days for Chemical Examination---Accused contended that he applied for permission to send the case property to S.P. Investigation, but before he could obtain such permission, he was suspended, therefore, he could not follow up the matter as property was available with the concerned Head Munshi---Permission to send case property, however, was given much later and apparently there was no delay or negligence on the part of accused---Such facts were confirmed by State Counsel---Accused being a senior police officer, his arrest was a humiliation---Accused was extended benefit of bail before arrest, accordingly.

Abdul Rasool Abbasi for Applicant.

Mumtaz Alam for the State.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1066 #

2006 P Cr. L J 1066

[Karachi]

Before Muhammad Afzal Soomro and Faisal Arab, JJ

KURARO JATOI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.D-72 of 2004, decided on 13th April, 2006.

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

----S. 13(d)---Appreciation of evidence---Counsel for accused did not press ground for acquittal of accused, but had submitted that sentence awarded to accused be reduced from four years' R.I. to already undergone by him---Accused was in custody for more than two and half years---Taking lenient view, sentence awarded to accused was reduced from four years' R.I. to one already undergone.

Jai Jai Veshnu Mange Ram for Appellant.

Muhammad Ismail Bhutto for the State.

Date of hearing: 13th April, 2006.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1095 #

2006 P Cr. L J 1095

[Karachi]

Before Ali Sain Dino Metlo, J

BURHAN-UD-DIN----Appellant

Versus

THE STATE and another----Respondents

Criminal Acquittal Appeal No.241 of 2005, decided on 20th February, 2006.

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

----S. 417---Penal Code (XLV of 1860), Ss.408 & 420---Appeal against acquittal---Appellant, who was Finance Manager of a Company had appealed against judgment of Trial Court whereby accused was acquitted from charge of cheating and criminal breach of trust, punishable under Ss.420 and 408, P.P.C.---Allegation against accused was that he joined the company as an apprentice in 1969 at a monthly salary of Rs.150 p.m., but had amassed enormous wealth in his and his family's name and-was living in house worth rupees one crore, furnished with high class furniture and fixture worth rupees forty lacs and he had committed gross irregularities in purchases by making overpayments---None of the witnesses had stated that accused owned or possessed wealth disproportionate to his known sources of income and it had not been disclosed as to what property he owned before and after joining the company---Accused, in circumstances, could not be said to have owned or possessed property disproportionate to his known sources of income---No provision of law was available under which doing of business by a private servant was an offence---Liability, if any, of the accused regarding payment of money, being purely of civil nature, could not be treated as criminal---General allegation was levelled against the accused that he made purchases at higher rates than market rate as none of the witnesses had disclosed the exact difference between prices of any particular two items or even the total amount of difference---Prosecution had not claimed that cash memos., were false, forged or flying---Negligence, however, grave, could not be equated to dishonest intention---Accused was rightly acquitted, in circumstances---Contention of appellant for remanding case was devoid of any force, as he was not able to show as to what material evidence, necessary for just decision of case he wanted to bring on record, while he had conceded that Investigating Agency had failed to collect sufficient evidence to prove the charge---Remand of case, in circumstances would serve no purpose except to cause unnecessary vexation to the accused---Criminal cases, at appellate stage were not required to be remanded for re-investigation.

Anwar Ahmed v. Mst. Nafis Bano 2005 SCMR 152; 2005 SCMR 364; PLD 1962 Lah. 492; PLD 1972 Pesh. 175; 2005 MLD 1409; PLD 1960 Lah. 822; PLD 1978 Kar. 610; 1971 SCMR 264 and 1975 PCr. LJ 1281 ref.

(b) Criminal trial---

----Case at appellate stage is not required to be remanded for reinvestigation.

M.A. Kazi for Appellant.

Abdullah Khan for the State.

Abdul Naeem Memon for Respondent No.2.

Date of hearing: 20th February, 2006.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1169 #

2006 P Cr. L J 1169

[Karachi]

Before Sabihuddin Ahmed, C.J.

THE REGISTRAR----Applicant

Versus

IMRAN HAIDER----Respondent

Criminal S.M. Revision Application No.94 of 2004, decided on 24th October, 2005.

Penal Code (XLV of 1860)---

---Ss. 367, 368, 336 & 337-A(I)---Criminal Procedure Code (V of 1898), 5.439---Suo motu revision---Compounding of offence---Consideration of goodwill---Scope---Accused who were charged for offences under Ss.336, 337-A(I), 367 & 368, P.P.C., were acquitted by Additional Sessions Judge on basis of a compromise between the parties---Addl. Sessions Judge, however, while noticing that offence under Ss.367 & 368, P.P.C. were not compoundable, proceeded to hold that for promoting goodwill between the parties, he had allowed them to compromise---Validity---Consideration of goodwill and amity would always be there whenever a matter was not per se compoundable between the parties and Court's intervention was necessary---Where even the Court was not authorized to allow composition of offences, no consideration of goodwill could outweigh the plain requirements of law---Reference was accepted by High Court and case was referred to the Trial Court which would issue appropriate warrants to respondents for their appearance and proceed to decide case under Ss.367 & 368, P.P.C., in accordance with law.

Ghulam Abbas v. The State 1994 MLD 1294 and State v. Muhammad Afzal 1994 PCr.LJ 997 ref.

Arshad Lodhi, Asstt. A.-G. for Applicant.

Sathi M. Ishaque for Respondent.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1174 #

2006 P Cr. L J 1174

[Karachi]

Before Rahmat Hussain Jafferi, J

AHMED DIN and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.S-4 of 2005, decided on 20th July, 2005.

Penal Code (XLV of 1860)--

----Ss. 302(b) & 34---Appreciation of evidence---No documentary evidence was on record to show that deceased in injured condition, was referred to Hospital and oral evidence in that respect was neither supported nor corroborated by any documentary evidence---Case of prosecution was that deceased had received injuries on specified date and time, but no medical evidence was available which could suggest that alleged four injuries on the person of deceased were caused on said date and time as prosecution had failed to produce either initial Medical Certificate or the Medical Officer who attended deceased in injured condition---Incident appeared to have not taken place as alleged by the prosecution, and deceased had not received the injuries on alleged date and time--Story of prosecution that deceased in injured condition was taken to police station appeared to be highly doubtful---It appeared that in order to show the presence of witnesses at the place of incident, such story had been introduced---Circumstantial evidence existed belying the oral version of eye-witnesses as there were only two fire-arm shots at the scene of incident---Ballistic Expert report also belied ocular version with regard to fire-arm shots---Such aspect of case had also given dent to prosecution story---Prosecution could not controvert inherent defects in the prosecution story which were available on record---Case of prosecution had become very doubtful and ocular testimony was not reliable and trustworthy---Was, in circumstances, very unsafe to rely upon such type of testimony to convict accused for heinous crime---Prosecution witnesses, though had picked up accused in identification test to be the culprits of crime, but witnesses did not assign the role to any of accused person which they had played at the time of incident---No common intention was found between all accused to commit murder of deceased---If oral evidence was discarded, then conviction could not be based on corroborative piece of evidence---In absence of ocular testimony, no conviction could be awarded merely on corroborative piece of evidence---Inordinate and unexplained delay in sending crime empties, gun and blood-stained earth to Ballistic Expert and Chemical Analyzer, had destroyed_ evidentiary value and same could not safely be relied upon---Case of prosecution being highly doubtful against accused, they were entitled to the benefit of doubt; which accordingly was given to them.

Imdad Ali Awan for Appellants.

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

Date of hearing: 20th July, 2005.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1185 #

2006 P Cr. L J 1185

[Karachi]

Before Mrs. Yasmin Abbasey, J

GHULAM HUSSAIN and 2 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.188 of 2000, decided on 2nd May, 2006.

Penal Code (XLV of 1860)---

----Ss. 324, 337-A(i)(ii), 337-F(i), 337-L(ii), 147 & 149---Appreciation of evidence---From the nature of injuries on person of injured it was hardly difficult to ascertain as to what was the nature of weapon used in the offence---To rely with full firmness on a particular nature of weapon was unsafe, in circumstances particularly when recovery of .crime weapons included both hatchet and Lathi---Both prosecution witnesses had deposed about joint attack of accused who were convicted and those who were acquitted, by both lathi and hatchet---To fix a charge on convicted accused just because they were having lathis, which could be said to be a hard and blunt substance, had no justification---Medical evidence was normally used for confirmation of ocular testimony as regarded injuries caused to injured or any prosecution witness---Such evidence certainly could not constitute corroboration qua accused for proving their involvement---Trial Court had disbelieved a major portion of eye-witnesses including injured---Sole evidence i.e. of Medical Officer was the basis of conviction of accused---If the Trial Court was of the opinion that discrepancies existed in prosecution evidence, then same should have been clarified at the trial stage---Failure of the prosecution, to do the same would benefit the accused---Alleged recovery of crime weapon from accused, after about 17 days of incident, when accused had sufficient time to destroy same, was hardly believable in the circumstances of the case---Relations between complainant and accused, were strained due to dispute over some agricultural land---In view of number of discrepancies appearing in the prosecution evidence, accused were acquitted..

1999 SCMR 40; 1997 SCMR 866 and 1995 SCMR 1345 ref.

Syed Madad Ali Shah for Appellants.

Riazuddin Siddiqui for the State.

Abdul Salam Abbasi for the Complainant.

Date of hearing: 7th April, 2006.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1209 #

2006 P Cr. L J 1209

[Karachi]

Before Muhammad Sadiq Leghari, J

AKHTAR HUSSAIN and others----Applicants

Versus

THE STATE----Respondent

Criminal Miscellaneous Application No.30 of 2005, decided on 6th April, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 347 & 173---Penal Code (XLV of 1860), Ss.420, 467, 468, 471 & 34---Police Order (22 of 2002), Art.18(6)---Application for quashing of orders---On lodging the F.I.R. by complainant, investigation was conducted and interim report was submitted by the Investigating Officer---Judicial Magistrate agreed with conclusion arrived at by Investigating Officer and accepted his report and also took cognizance of the offence---After submission of interim report, final report was yet to come---If final report was submitted beyond period provided by proviso to clause (b) of subsection (1) of S.173, Cr.P.C., it could not be treated as void and after acceptance of final report by Magistrate, investigation of non-cognizable offence also could not be treated as void---Present case was not the one where investigation was conducted in respect of only a non-cognizable offence, but was alleged to have been committed along with cognizable offence, during the same transaction---Submission of final report was also not violative of Police Order 2002, as it was not the case of transfer or change of investigation by Police authorities under the Police Order, 2002---If remaining part of investigation was completed and final report was submitted by another officer, that by itself would not make it illegal---Section 347,. Cr.P.C. also did not require Magistrate to send case after recording evidence during trial, but it empowered him to send the same to Sessions Court at any stage of proceedings---Impugned order did not call for interference---Application for quashing order, was dismissed, in circumstances.

Muhammad Tasneem v. S.H.O. Police Station Thikriwala District Faisalabad 1997 MLD 1555 and Muhammad Alam and others v. State PLD 1967 SC 259 ref.

Jawaid Haider Kazmi for Applicants.

Khalid Mehmood Siddiqui for the State.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1212 #

2006 P Cr. L J 1212

[Karachi]

Before Munib Ahmed Khan, J

PARIAL----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-202 of 2006, decided on 3rd May, 2006.

Criminal Procedure Code (V of 1898)---

---S. 497(2)--.-Penal Code (XLV of 1860), Ss.302, 337-A(i), 337-F(i), 34, 147 & 148---Bail, grant of---Further inquiry---State counsel could not explain as to how co-accused had been let off as an innocent person---Factual position in respect of the presence or absence of co-accused had made the contents of F.I.R. doubtful---Time of incident was also not confidence reposing as F.I.R. number had been mentioned in every document even prior to its registration---Delay of five hours and thirty minutes, in lodging F.I.R. was also unexplained---Enmity was also apparent from the contents of F.I.R.---Case being of further inquiry, bail was granted to accused.

Syed Madad Ali Shah for Applicant.

Amir Ali Thari, State Counsel.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1236 #

2006 P Cr. L J 1236

[Karachi]

Before Zia Perwaz, J

AAMIR----Applicant

Versus

THE STATE----Respondent

Bail Application No.S-866 of 2004, decided on 23rd December, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.322, 337-J & 34---Bail, grant of---Section 322, P.P.C. being punishable by Diyat, did not fall within prohibitory clause of S.497, Cr.P.C. and provisions of S.337-J, P.P.C. were not attracted in the case as there was no intention on the part of accused to cause death of any person---Co-accused, who had been assigned similar role in F.I.R., had already been enlarged on bail---State counsel had no objection to grant of bail to accused on principle of consistency---Accused was released on bail, in circumstances.

Madad Ally Shah Syed for Applicant.

Anwar H. Ansari, State Counsel.

Date of hearing: 23rd December, 2004.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1239 #

2006 P Cr. L J 1239

[Karachi]

Before Muhammad Moosa K. Leghari and Mrs. Yasmin Abbasey, JJ

MUHAMMAD HAYAT----Appellant

Versus

THE STATE-- -Respondent

Criminal Revision Application No.D-28 of 2006, decided on 20th April, 2006.

Criminal Procedure Code (V of 1898)---

---Ss. 439 & 494---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Revision application---Withdrawal of case---Application for---Transfer of case---Application filed by District Attorney under S.494, Cr.P.C., for withdrawal of case against accused was dismissed by the Trial Court holding that withdrawal of narcotics case was against public policy and that no notification was issued by Government in that respect---Accused had filed revision against said order of the Trial Court---Impugned order whereby the Trial Court had declined to grant permission to prosecution for withdrawal of case, was supported by cogent reasons---No justification appeared to disturb order passed by the Trial Court as same was neither illegal nor improper---Trial Court, however, had made certain observations touching the merits of evidence which were sufficient to create apprehension in the mind of accused/applicant, that he could feel prejudiced---Justice should not only be done, but should be seen to have been done---Withdrawal of appeal was ordered by the High Court from the Court of Sessions Judge/Special Judge---Which, consequently would be transferred to the Court of Second Additional Sessions Judge/Special Judge, Control of Narcotic Substances, who would proceed further with the case in accordance with law.

Madad Ali Shah for Applicant.

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

PCRLJ 2006 KARACHI HIGH COURT SINDH 1243 #

2006 P Cr. L J 1243

[Karachi]

Before Munib Ahmed Khan, J

IMDAD and 3 others----Applicants

Versus

THE STATE and 2 others----Respondents

Criminal Miscellaneous Application No.106 of 2003, decided on 10th May, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 249-A & 439-A---Quashing of proceedings---Scope---Provision of S.561-A, Cr.P.C. could be utilized in rare circumstances---If application under S.249-A, Cr.P.C. was dismissed by the Magistrate, then recourse to S.561-A, Cr.P.C. would not be applicable and a revision was to be filed under S.439-A, Cr.P.C.

PLD 1997 SC 275; PLD 2004 SC 298 and 2005 SCMR 1544 ref.

Nemo for Applicants.

Syed Madad Ali Shah for Respondent.

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

PCRLJ 2006 KARACHI HIGH COURT SINDH 1251 #

2006 P Cr. L J 1251

[Karachi]

Before Rahmat Hussain Jafferi and Ali Sain Dino Metlo, JJ

QADIR BAKHSH and 5 others----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.186 of 2006, decided on 25th April, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 188---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8, 9, 12, 13, 14, 15, 19 & 37---Qanun-e-Shahadat (10 of 1984), Art.38---Bail, grant of---Captain of foreign ship called personnel of Anti-Narcotic Force, at his ship and handed over them the applicants, 51 bags of Charas weighing 2216 Kilograms and a launch saying that he had captured them along with the Charas, while they were sailing in the launch in the international deep sea---Case was registered against the applicants and charge-sheet was filed in the Special Court for the Control of Narcotic Substances and applicants were remanded to prison under the orders of the said Court---Held, confession of applicants before the Investigating Agency, according to Art.38, Qanun-e-Shahadat, 1984, was inadmissible in evidence---Big quantity of Charas could have its importance only if the applicants were connected with it by cogent evidence---Prosecution had not been able to find out and record statements of the Captain of the ship and other members of the crew despite passage of more than two years---Applicants could not be kept in custody indefinitely simply to wait collection of evidence against them---Applicants, in circumstances, were entitled to grant of bail.

Raja Qureshi for Applicants.

Farukh Zia Shaikh, Special Prosecutor for Respondent.

Date of hearing: 25th April, 2006.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1256 #

2006 P Cr. L J 1256

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

FARRUKH QADRI----Applicant

Versus

THE STATE----Respondent

Criminal Bail No.173 of 2006, decided on 9th May, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 540-A---Penal Code (XLV of 1860), S.302---Refusal of bail on ground of hardship---Accused had submitted that on sole ground of delay in disposal of case, he was entitled to be released on bail---Validity---Prosecution witnesses were present on more than ten dates, but case did not proceed and witnesses lost patience and discontinued to appear before the Court---Prosecution and defence were not supposed to test patience of witnesses---Benefit could be sought only if witnesses would fail to appear in order to cause delay and extend incarceration of accused in jail---If witnesses appeared on several dates and were not examined, their subsequent absence, would not justify release of accused on bail as a matter of right---Same principle was applicable when bail was not granted as a matter of right, but could be considered on the ground of inordinate delay in disposal of the case---Trial Court, prosecutor, advocate for complainant and defence advocates, had equally contributed in causing delay in disposal of case and perpetuating the agony of accused as well as prosecution witnesses---Such state of affairs could not be termed as satisfactory by any stretch of imagination---System of law could work properly, if all stake holders performed their duty properly and with due diligence---Entire responsibility for delay could not be placed on the shoulders of prosecution witnesses---Accused, in circumstances was not entitled to be released on bail---Bail application filed by accused, stood dismissed accordingly.

Abdul Waheed Katpar for Applicant.

Ali Nawaz Ghanghro for the Complainant.

Mushtaque Ahmed Abbasi, Asstt. A.-G.

2006 P Cr. L J 1389

[Karachi]

Before Ata-ur-Rehman, J

SHOUKAT ALI----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-398 of 2001, decided on 10th September, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860),S.161---Prevention of Corruption Act (II of 1947), S.5(2)---Bail, grant of---Earlier bail application of accused was rejected with direction to the Trial Court for concluding trial within one month, but no progress was made even in such extended period and position remained the same---Maximum punishment for offence of accused was seven years---Trial of case was not likely to conclude in near future---State counsel had no objection, if bail was granted to accused---Bail was granted accordingly.

Nisar Ahmed G. Abro for Applicant.

Mushtaque Ahmed Korejo for the State.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1393 #

2006 P Cr. L J 1393

[Karachi]

Before Rahmat Hussain Jafferi, J

AHMED SULTAN and another----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.58 and M.As. Nos.117, 118 of 2003 of 2003, decided on 25th February, 2003..

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 353, 225-B, 427, 148 & 149---Bail, grant of---Bail application had not been pressed by counsel of accused persons in respect of one accused---Bail application to the extent of said accused was dismissed as not pressed---Allegation against the other accused was that he escaped from the custody of police---Said offence, if any, against accused, would fall under S.225-B, P.P.C. which was bailable---Said accused was entitled for concession of bail--State Counsel had conceded the position and had no objection to grant of bail to accused---Accused was admitted to bail, in circumstances.

Nisar Ahmed G. Abro for Applicants.

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

PCRLJ 2006 KARACHI HIGH COURT SINDH 1400 #

2006 P Cr. L J 1400

[Karachi]

Before Rahmat Hussain Jafferi and Ali Sain Dino Metlo, JJ

SABIR ALI WASEEM----Appellant

Versus

THE STATE----Respondent

Spl. A.T.A. No.34 of 2003, decided on 13th April, 2006.

Penal Code (XLV of 1860)---

----S. 427---Explosive Substances Act (VI of 1908), Ss.4 & 5-A---Anti-Terrorism Act (XXVII of 1997), S.7(b) & (d)---Appreciation of evidence---Evidence of accused's pointing out place of incident to police, was inadmissible inasmuch as no fact was discovered in consequence of information received from him---Alleged recovery of arms and ammunition from the possession of accused, was also not relevant as same were not shown to have been used in commission of crime---Investigating Officer, who had recovered same, had himself stated that arms and ammunition had nothing to do with the case---Ocular evidence of two prosecution witnesses did not inspire confidence for the reasons that their names had not been mentioned in F.I.R. though same was registered after making preliminary enquiry at the spot---Complainant did not state that said witnesses had come to the place of incident or that they had narrated incident to the police---Identity of said witnesses was also not established by any document---Witnesses did not produce their National Identity card or any other document regarding their ..identity either before Investigating Officer or before Magistrate or even before the Trial Court---Identification' of said witnesses, in circumstances remained a mystery---Accused and his associates, were not known to prosecution witnesses, but despite that they did not give their features to police nor police felt it necessary to know the same---Such conduct on the part of witnesses and police had cast doubt upon their veracity and fairness---Evidence of identification parade, was worthless inasmuch as neither witnesses at the time of identifying accused in the identification parade, disclosed in what context they were identified nor Magistrate took trouble of making such inquiry---Medical evidence was also worthless as none of the witnesses had stated that accused had suffered burns at the time of firing the rocket---Opinion of Doctor, not based upon any reason or apertise, could not be given any weight---Confession of accused that he had fired rocket to target Americans staying in hotel, did not appear true or voluntary---Prosecution having failed to prove its case against accused conviction and sentence recorded by Trial Court against him were set aside and accused was acquitted and released.

Aamir Mansoob Qureshi for Appellant.

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

PCRLJ 2006 KARACHI HIGH COURT SINDH 1409 #

2006 P Cr. L J 1409

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

JAMEEL AKHTAR KIYANI and another----Appellants

Versus

THE STATE----Respondent

Criminal Accountability Appeal No.18 of 2003, decided on 29th May, 2006.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(iv)(v), 10, 14(c), 15 & 32---Prevention of Corruption Act (II of 1947), S.5---Appreciation of evidence---Accused who joined service as Assistant Sub-Inspector of Police in 1959 and was retired as Deputy Superintendent of Police in 1995 was alleged to have indulged himself into corrupt practices and misused his authority to gain monitory benefits and accumulated assets and properties worth Rs.90.00 million in his own name, in the name of his co-accused/his wife and absconding two sons---Accused also constructed bungalows after spending huge amount---Facts advanced by prosecution, had been admitted by accused including purchase of properties mentioned in the charge in their names---Accused had no sources of income to purchase said properties from meagre inherited property and his salary---Properties acquired by accused were disproportionate to his known sources of income---All ingredients of S.14(c) of National Accountability Ordinance, 1999, in circumstances were proved---Once said ingredients were established then offence of corruption and corrupt practices as defined under S.9(a)(v) of National Accountability Ordinance, 1999, was complete unless accused was able to reasonably account for such resources from which properties were purchased as provided under S.14(c) of National Accountability Ordinance, 1999 and accused could not account for the same---Even if declaration of assets filed by accused was accepted, even then amount spent on construction raised on bungalows, was far exceeding than total income and savings shown by accused in annual declaration of assets---Properties held by accused being disproportionate to his known sources of income, that was an offence as defined under S.5(1)(e) of Prevention of Corruption Act, 1947 which was punishable under S.5(2) of Prevention of Corruption Act, 1947---Income derived from said properties was illegal which could not be taken into consideration for acquiring subsequent properties, because said income could not be termed as legitimate source of income---Prosecution, in circumstances had proved case against accused beyond any shadow of doubt---Trial Court had rightly convicted and sentenced accused after appreciating evidence on record in accordance with settled principles of law.

P. Nallammal v. State AIR 1999 SC 2556; C.S.D. Swami v. The State AIR 1960 SC 7; State of Bihar v. Deokaran Nenshi AIR 1973 SC 908; Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 and Bhagirath Kanoria v. State of M.P. AIR 1984 SC 1688 ref.

I.A. Hashmi for Appellants.

Ainuddin Khan ADPGA NAB for the State.

Date of hearing: 16th March, 2006.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1427 #

2006 P Cr. L J 1427

[Karachi]

Before Ali Sain Dino Metlo, J

BABAR YOUNUS---Applicant

Versus

THE STATE---Respondent

Special Criminal Bail Application No. 22 of 2006, decided on 2nd June, 2006.

(a) Sales Tax Act (VII of 1990)---

----Ss. 33 & 37-A---Offence of tax fraud---Arrest and prosecution of accused in every case not mandatory, but within discretion of authority to be exercised judiciously---Arrest could not be made merely on basis of reasonable suspicion, which could not be equated with "belief"---Condition precedent for arrest was availability of material evidence sufficient to believe commission of tax fraud by the person to be arrested---Principles.

(b) Criminal trial---

----"Reasonable suspicion" cannot be equated to "belief".

----S. 497---Sales Tax Act (VII of 1990), Ss. 33, 37-A, 46 & 66---Sales Tax Refund Rules, 2002, R. 8(1)---Bail, grant of---Refund claim, pendency of---Tax fraud case, registration of---Investigation Officer had inferred commission of tax fraud by assessee due to non-availability of supplier and assessee at given addresses---Investigation Officer had not made any effort to collect evidence to show that supplier, had not deposited or accounted for tax covered by invoices---No equity has been started against supplier---Export of goods and receipt of value of goods in foreign exchange by assessee had not been denied by prosecution---Refund claim of assessee was still pending and no show-cause notice for its rejection or prosecution had been served on him---Purchases made on credit by assessee for not being prohibited could not be treated as confession of tax fraud---Assessee was in custody for more than 1-1/2 months---Completion of investigation would take a long time---Offence was compoundable and punishable with imprisonment for five years or fine or both---State had not suffered any loss of revenue---Assessee was granted bail in circumstances.

Ilyas Khan for Applicant.

Mahmood Alam Rizvi Standing Counsel for State.

Date of hearing: 31st May, 2006.

2006 P Cr. L J 1576

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

Syed HASHIM ALI----Appellant

Versus

THE STATE----Respondent

Special Anti-Terrorism Appeal No.14 of 2001, decided on 31st December, 2005.

Penal Code (XLV of 1860)---

----Ss. 302, 365 & 377---Anti-Terrorism Act (XXVII of 1997), S.6(c)---Qanun-e-Shahadat (10 of 1984), Art.40---Appreciation of evidence---No eye-witness was of the incident---Prosecution case rested upon circumstantial evidence, which was not enough to justify inference of guilt against accused---Fundamental principle of universal application in the cases depending on circumstantial evidence was that in order to justify inference of guilt, incriminating fact must be incompatible with the innocence of accused or the guilt of any other person and incapable of explanation upon any other reasonable hypothesis than that of his guilt---In case of circumstantial evidence, no link in the chain should be missing and all circumstances must lead to the guilt of accused---Statement of both witnesses had not been supported and corroborated by Mashir of the place of incident who was an independent witness and in whose presence place of incident was seen by the police and it was difficult to rely upon any of the two contradictory statements with regard to place of incident---Place of recovery of dead body being known to everybody, it could not be termed as discovery within the meaning of Art.40 of Qanun-e-Shahadat, 1984---Before recording statement under S.164, Cr.P.C. legal requirements were not fulfilled---Said statement could not be treated as substantive piece of evidence---Trial Court, was not justified in relying upon said statement---Prosecution having failed to prove case against accused, appeal against impugned judgment of Trial Court, was allowed.

Zahid Hussain v. Crown 1969 SCMR 388; Muhammad Nazir v. Mst. Saira PLD 197QiSC 56 and Ali Khan v. State 1999 SCMR 955 ref.

Kh. Naveed Ahmed for Appellant.

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

Mahmood A. Qureshi for the Complainant.

Dates of hearing: 20th and 21st December, 2005.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1611 #

2006 P Cr. L J 1611

[Karachi]

Before Nadeem Azhar Siddiqui, J

WARYAM----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-174 of 2006, decided on 11th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 452, 427, 147, 148 & 149---Bail, grant of---Further inquiry---Only allegation against accused in F.I.R. was his presence at the time of murder and firing in the air and no other overt act had been attributed to him--Allegation in F.I.R., was that accused though armed with gun, had not caused, any injury to deceased---Presence of accused at the place of wardat and his role in the commission of murder of deceased would be decided at the stage of trial---Since only allegation against accused was his presence at the place of wardat and firing in the air, his case required further inquiry into his guilt---Case of accused also required further inquiry with regard to determine his vicarious liability and sharing common intention with other accused---No reasonable grounds existed for believing that accused was guilty of offence falling under prohibitory clause of S.497, Cr.P.C.---Accused was released on bail, in circumstances.

Jai Jai Veshnu Mange Ram for Applicant.

Mushtaque Ahmed Kourejo, Asstt. A.-G. for the State.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1628 #

2006 P Cr. L J 1628

[Karachi]

Before Amir Hani Muslim, J

ASIF RAZA----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.446 of 2006, decided on 5th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.392/34---Bail, grant of---Further inquiry---Investigation in the case had been completed, challan had been submitted and no recovery had been effected though accused was arrested from the spot---Case against accused being of further inquiry, he was enlarged on bail, in circumstances.

Saathi M. Ishaque for Applicant.

Agha Zaafar, A.A.-G. for the State.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1635 #

2006 P Cr. L J 1635

[Karachi]

Before Amir Hani Muslim, J

MUHAMMAD AZAM----Applicant

Versus

THE STATE----Respondent

Bail Application No.511 and M.A. No.1988 of 2006, decided on 16th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Emigration Ordinance (XVIII of 1979), S.17(I)---Bail, grant of---Trial Court had declined bail to accused on the ground that he would attempt to proceed abroad by personating for some one else---Passport of accused was already lying with the Authorities---No circumstances were shown from which such intention of accused could be gathered---Trial Court, in circumstances was in error in declining bail to accused.

Abdul Naeem Memon for Applicant.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1638 #

2006 P Cr. L J 1638

[Karachi]

Before Muhammad Athar Saeed, J

JAWED KHOKHAR----Applicant

Versus

THE STATE----Respondent

Bail Application No.635 of 2006, decided on 7th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.408, 420 & 34---Pre-arrest bail---Application for---Complainant in his F.I.R. had alleged that applicant/accused had misappropriated huge amount of professional fees collected during absence of complainant from Pakistan---F.I.R. had also alleged that applicant had admitted his arrears and requested for time to return said amount, which had not been returned---Office was directed to issue notice to complainant and till then applicant would not be arrested in connection with the F.I.R.

Abdul Naeem Memon and Muhammad Nawaz for Applicant.

Sabir Hyder for the State.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1648 #

2006 P Cr. L J 1648

[Karachi]

Before Nadeem Azhar Siddiqi, J

SIKANDAR----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.130 of 2006, decided on 26th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 504, 147, 148 & 149---Juvenile Justice System Ordinance (XXII of 2000), Ss.4(3) & 10---Bail, grant of---According to School Certificate and Medical Certificate, accused at the time of incident being under the age of 18 years, was a child within the meaning of S.4(3) of Juvenile Justice System Ordinance, 2000---Juvenile Justice System Ordinance, 2000, being a special law enforced in order to safeguard the rights of children/minors involved in criminal cases, who deserved reasonable concession because of their tender age, its provisions, were to be liberally construed/ interpreted in favour of child accused---Once accused had come within the definition of child, he was entitled to grant of bail, even if involved in the case punishable with death---Said concession, however was subject to limitation contained in Cl.(c) of subsection (7) of S.10 of Juvenile Justice System Ordinance, 2000 and manner in which alleged offence was committed by accused, could not be said to be coming within four corners of the said proviso---No material was on record to show that accused was previously convicted---Accused was in custody since last about one year and record had further shown that after framing of the charge, case was not proceeded, some time due to absence of counsel for accused and some time for other reasons---Overall delay in trial could not be totally attributed to accused in circumstances---Accused, in circumstances was found entitled to concession of bail.

Manzoor Ahmed v. State 2002 PCr.LJ 657; Wahid Bux Khoso v. State 2006 MLD 507 ref.

Muhammad Hassan Mahessar for Applicant.

Muhammad Ismail Bhutto for the State.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1703 #

2006 P Cr. L J 1703

[Karachi]

Before Munib Ahmed Khan, J

Pir MUHAMMAD NOOR and another----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.S-19 and M.A. No.37 of 2006, decided on 23rd May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Further inquiry---Incident had taken place in the Mosque, but there was no witness from the namazies---F.I.R. showed that deceased was accompanied with two persons and those three persons were faced by two persons; there should have been some resistance from companions of the deceased, but F.I.R. was silent on that issue---F.I.R. could be lodged by either of the two companions of deceased who were present at the site, but they had not lodged F.I.R., but had intimated complainant, the brother of deceased who lodged the F.I.R.---F.I.R. which was lodged after 8 hours from occurrence, which was silent in respect of time of information---Co-accused, according to old National Identity Card as well as computerized National Identity Card was more than 79 years old---Eye-witnesses, in the statement under S.162, Cr.P.C., had given different versions as according to them two persons caught hold of deceased and other two caused injuries---Said version was contrary to the statement in F.I.R.---Case needing further inquiry, accused was granted bail.

1995 SCMR 310; 1978 SCMR 357; 2005 YLR 470; NLR 1978 Cr. 328; 1984 SCMR 1083; 2003 MLD 905; 1996 SCMR 861; 2006 PCr.C.R. 275; 1973 PCr.LJ 375; 1977 SCMR 52; 1979 SCMR 114 and 1977 SCMR 27 ref.

Syed Madad Ali Shah for Applicants.

Amir Ali M. Thari, State Counsel.

Muhammad Hussain Dawoodani for the Complainant.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1786 #

2006 P Cr. L J 1786

[Karachi]

Before Anwar Zaheer Jamali, J

MUHAMMAD ASIF----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.574 of 2004, decided on 27th September, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Explosive Substances Act (VI of 1908), Ss.4, 5 & 7---Bail, grant of---Further inquiry---Accused was in custody for the last one year and ten months, but even the charge had not been framed in the case---Allegations against accused as per F.I.R., were that at the time of his arrest, three hand-grenades, three book type explosive substances and two T.T. Pistols with bullets, were recovered from him, while in the challan submitted before the Trial Court, no reference was made about the recovery of said three hand-grenades and two T.T. Pistols, nor the name of Explosive Expert had been cited in the list of prosecution witnesses---Sanction/consent of Provincial Government as required under S.7 of Explosive Substances Act, 1908, was also lacking--Such deficiencies in the case of prosecution had made the case of further inquiry---Accused, in circumstances was granted bail.

Aamir Mansoob Qureshi for Applicant.

Sardaruddin Qureshi for the State.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1793 #

2006 P Cr. L J 1793

[Karachi]

Before Mrs. Yasmin Abasey, J

MARRIAM ANTHONY NOROHANA and another----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.90 of 2006, decided on 13th February, 2006.

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

----Arts. 30, 37 & 43---Criminal Procedure Code (V of 1898), S.164---Confession---Confessional statement of' a person could only inculpate himself and no other person could be inculpated merely because some other person had made any admission---Confession made by a person could be accepted to the extent to which it would affect himself and could be rejected to the extent to which it implicated some body else.

Federation of Pakistan and others v. Gul Hassan Khan PLD 1989 SC 633; 2001 MLD 566 and 1999 SCMR 2203 ref.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.420, 468 & 471---Bail, grant of---Further inquiry---Main allegation of prosecution against co-accused, was that he was involved in illegal business of preparing false and forged visas of different countries---All documents had been taken in custody by police, even if prosecution had been able to assign any role against accused, then also entire case of prosecution was based on documents which were already in possession of police---Question of tampering with the documents, had gone out of question, in circumstances---Case against accused being a case of further inquiry, they were admitted to bail in circumstances.

1996 SCMR 1132 ref.

Aamir Mansoob Qureshi for Applicants.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1798 #

2006 P Cr. L J 1798

[Karachi]

Before Sajjad Ali Shah, J

MASHOOQ and another----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.S-279 of 2006, decided on 2nd August, 2006.

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

----S. 498---Penal Code (XLV of 1860), S.337-A(ii)---Interim pre-arrest bail, refusal of---Complainant had clearly stated in F.I.R. that his head injuries were caused by accused, which had been duly supported by Medical Certificate as well as statement of witnesses---Sufficient incriminating material connecting accused with commission of alleged offence was available on record---Accused, in circumstances was not entitled to concession of pre-arrest bail and his application for pre-arrest bail was rejected.

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

----S. 498---Penal Code (XLV of 1860), S.337-A(ii)---Interim pre-arrest bail, confirmation of---Allegation against co-accused was of hitting blow with Danda with no specific injury on the body, even otherwise rest of the blows in accordance with medical report were classified as Shajjah-i-Khafifah, an offence which was bailable---Pre-arrest bail granted to co-accused was confirmed, in circumstances.

Khadim Hussain Solangi for Applicants.

Ameer Ali M. Thari State Counsel.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1804 #

2006 P Cr. L J 1804

[Karachi]

Before Zia Perwaz and Rahmat Hussain Jafferi, JJ

NAVEED-UL-HASSAN----Applicant

Versus

THE STATE----Respondent

Criminal Revision Application No.39 of 2006, decided on 25th May, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 435, 439 & 561-A---Penal Code (XLV of 1860), Ss.302, 324 & 427---Anti-Terrorism Act (XXVII of 1997), S.7-B---Qanun-e-Shahadat (10 of 1984), Art.43---Revision application was directed against the order passed by Anti-Terrorism Court, allowing application seeking re-opening of side of prosecution and examination of two Judicial Magistrates---Objections to said application were overruled so far as calling or two Magistrates for evidence, was concerned---Statement of one of said two Magistrates, who had recorded confessional statement of accused, had already been recorded-Further proceedings and recording of statement of other Judicial Magistrate, before deciding question of recording of confession by the Trial Court, would prejudice the rights of accused---Point of admissibility of evidence being involved in the case, it was required to be decided by the Trial Court at the moment when objection was raised which had not been done---Trial Court was directed by the High Court to decide question of admissibility of evidence---If the Court would come to the conclusion that such evidence was admissible, only then evidence of witness could be recorded and if it would form the opinion that evidence was not admissible, then evidence of Magistrate recorded earlier should be discarded; it was, however, left with the Trial Court to decide question in accordance with law---Impugned order was set aside and case was remanded to the Trial Court to first consider and decide matter of admissibility of evidence as available on record before proceeding further with the matter---Application was allowed accordingly.

Aamir Mansoob Qureshi for Applicant.

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

PCRLJ 2006 KARACHI HIGH COURT SINDH 1809 #

2006 P Cr. L J 1809

[Karachi]

Before Nadeem Azhar Siddiqui, J

SHER SHAH----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-31 of 2006, decided on 14th March, 2006.

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

----S. 497---Penal Code (XLV of 1860), S.324---Juvenile Justice System Ordinance (XXII of 2000), Ss.2(b) & 10---Bail, grant of---Accused was of less than 18 years on date of incident---Accused remained in custody for more than four months---Delay in trial was not due to acts of accused---Accused was neither previous convict nor involved in an offence of serious, heinous, gruesome, brutal, sensational in character or shocking to public morality---Punishment for offence committed by accused was not death, thus, such offence could not be said to be serious and heinous---Accused due to abscondence would lose some of his rights, but he being a child would be entitled to concession of bail---Case of accused did not fall within proviso to S.10 of Juvenile Justice System Ordinance, 2000---Accused was granted bail in circumstances.

Afsar Zaman v. The State PLD 2002 Kar. 18; Wahid Bakhsh Khoso v. The State Criminal Bail Application No.733 of 2005 and Wajid Ali v. The State Criminal Bail Application No.445 of 2005 ref.

Afsar Zaman v. State PLD 2002 Kar. 18; Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182 rel.

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

----S. 497---Juvenile Justice System Ordinance (XXII of 2000), Ss.2(b) & 10---Bail, grant of---Abscondence of child accused---Significance---Accused due to abscondence would lose some of his rights but not statutory concession of bail, unless his case fell within proviso to S.10 of Juvenile Justice System Ordinance, 2000---Principles.

Afsar Zaman v. The State PLD 2002 Kar. 18 and Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182 rel.

Sikandar Ali Alvi for Applicant.

Mushtaq Ahmed Abbasi, Asstt. A.-G.

Habibullah G. Ghori amicus curiae.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1821 #

2006 P Cr. L J 1821

[Karachi]

Before Athar Saeed, J

WASEEMUDDIN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.195 of 2004, decided on 19th December, 2005.

Penal Code (XLV of 1860)---

----S. 392/34---Appreciation of evidence---Discrepancy existed between the statement under S.154, Cr.P.C. of prosecution witness 'and her statement on oath before the Court--No identification parade was held and accused were implicated on the pointation of complainant in the Court which was not in accordance with the procedure laid down in relevant law---Recovery of stolen articles were not made by following the procedure prescribed under S.103, Cr.P.C. and no Mashirnama of recovery had been produced before the Trial Court---Stolen articles allegedly recovered were not identified and said articles were not produced before the Court nor was accused confronted with the recovery of those stolen articles, while recording his statement under S.342, Cr.P.C.---Investigating Officer and other official witnesses were not produced before the Court and the side of prosecution had been closed without recording evidence of those witnesses---Despite the fact that prosecution had failed to prove its case against accused beyond doubt, Trial Court without recording any plausible reasons had found that prosecution had proved its case under Ss.392 & 34, P.P.C. and sentenced the accused---Impugned order, in circumstances could not be sustained---Same was set aside by the High Court with direction that fine, which had been paid by accused in lieu of imprisonment may be refunded to him.

Rana Shabbir Hussain v. The State 2005 PCr.LJ 1599 ref.

Khawaja Manzopr Ahmed for Appellant.

Sardaruddin Qureshi for the State.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1839 #

2006 P Cr. L J 1839

[Karachi]

Before Muhammad Afzal Soomro, J

Haji MUHAMMAD HANIF alias ARIF----Applicant

Versus

THE STATE----Respondent

Criminal Bail Applications Nos.212, 281, 209 and 172 of 2005, decided on 1st July, 2005.

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

----S. 497---Bail, grant of---Accused who was one of the four accused persons, was languishing in jail for the last more than 2 and half years, hut no material witness, had been examined---Case diaries had shown that accused had not contributed towards delay in trial, but due to non-availability of prosecution witnesses and also complainant on various dates for which bailable warrants were also issued as well as due to transfer of Presiding Officer, case could not proceed---Accused was released on bail, in circumstances.

Sajan v. The State 2005 SLJ 78; Ghulam Abbas alias Abbasi and others v. The State PLD 2005 Kar. 255; Punhal and others v. The State 2004 PCr.LJ 96; Abdul Hameed v. The State 2003 MLD 19; Abdul Khanan v. The State 2004 PCr.LJ 92 and Abdul Rasheed v. The State 2004 PCr.LJ 652 ref.

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

----S. 497---Bail, refusal of---Accused who was second among four accused persons remained in jail since 22-11-2002, but no progress had been made in the trial---Bail plea of said accused had already been declined by High Court---Case Diaries had shown that on various dates defence counsel either moved application for adjournment or he remained absent---No doubt prosecution witnesses were also missing on various dates, but contribution of counsel of accused towards delay had adversely reflected upon the plea of accused raised on the ground of hardship---Bail applin.2tion of said accused was dismissed.

----S. 497---Bail, grant of---Accused since his arrest on 17-9-1996, was continuously in jail, but trial had not yet been concluded---Accused had passed eight and half years in jail---Despite issuance of bailable warrants on more than 74 occasions, Trial Court had failed to procure their attendance---Trial had not been concluded during such a pretty long time due to non-appearance of prosecution witnesses for which accused could not be put in jail for an indefinite period---Accused had earned the right of bail on the ground of delay before framing charge which was framed after three years from the date of arrest of accused---Delay in conclusion of the trial for nine years, appeared to be shocking---Accused, who had been able to make out a case for bail, was admitted to bail.

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

----S. 497---Bail, grant of---Accused was behind the bars since his arrest on 17-5-2002, but trial had not been concluded---Case Diary had shown that Trial Court had ordered for issuance of proclamation under S.87, Cr.P.C. against complainant and two eye-witnesses---Period of three years had passed in conclusion of the trial and it did not seem to conclude within foreseeable period---Only role of keeping weapon at night upon complainant party and issuing them threats had been assigned to the accused and enmity existed between parties---Accused, in circumstances had been able to make out a case for bail---Accused was admitted to bail, in circumstances.

Amanullah Shaikh, Roshan Ali Solangi and Muhammad Ayaz Soomro for Applicant (in Criminal Bail Application No.281 of 2005).

Asif Ali Abdul Razak Soomro (in Criminal Bail Application No.212 of 2005).

Roshan Ali Solangi for Applicant (in Criminal Bail Application No.209 of 2005).

PCRLJ 2006 KARACHI HIGH COURT SINDH 1846 #

2006 P Cr. L J 1846

[Karachi]

Before Muhammad Moosa K. Leghari, J

LALDINO----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.209 of 2003, decided on 27th April, 2006.

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

---S. 302(b)---Appreciation of evidence---Motive---Proof---Not necessary for prosecution to prove motive in every case---Motive once set up, if not established, then prosecution must suffer consequence thereof, but not the defence---Absence of motive or failure of prosecution to prove motive would not adversely affect testimony of its witnesses, if found to be reliable---If alleged motive found to be false, then ocular evidence would be scrutinized strictly, and would be relied upon, if found to be credible.

Hakim Ali and 4 others v. The State and another 1971 SCMR 432; Ahmed Nisar's case 1977 SCMR 175 and Habibullah and others v. The State PLD 1969 SC 127 fol.

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

----S. 302(b)---Appreciation of evidence---Six empties collected on the day of occurrence from place of occurrence sent to Ballistic Expert along with klashnikov recovered from accused after seven days of occurrence---Such fact rendered report of Ballistic Expert as of no value---Eye-witnesses deposed that deceased sustained five injuries---Post-mortem report showed five entry and live exit wounds on body of deceased, but did not give description of weapon used in commission of offence---Report of Ballistic Expert showing only two empties fired from such klashnikov---Deposition of doctor revealed that injuries on body of deceased were result of three fire-arm shots from four different sides---Eye-witnesses claimed to be present by chance at the place of incident consisted of brother and friends of deceased---Depositions of eye-witnesses were contrary to report of Ballistic Expert---Presence of eye-witnesses at place of incident not confidence-inspiring---Motive alleged by prosecution not proved---Held, prosecution had failed to prove its case beyond doubt---Accused was acquitted in circumstances.

----S. 302(b)---Appreciation of evidence---Ballistic Expert, report of---Empties collected on day of occurrence sent to Expert along with klashnikov recovered from accused after seven days of occurrence---Such report was of no value.

A.Q. Halepota for Appellant.

Ms. Raana Khan for the State.

Date of hearing: 27th April, 2006.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1866 #

2006 P Cr. L J 1866

[Karachi]

Before Muhammad Mujeebullah Siddiqui and Faisal Arab, JJ

ASMAT----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.65/B of 2006, decided on 31st May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Explosive Substances Act (VI of 1908), Ss.3 & 4---Bail, grant of---Benefit of doubt---Entitlement---Scope---Case diary had shown that statements of prosecution witnesses were not recorded on the date of occurrence and police was not aware of the names of culprits---Three prosecution witnesses had not implicated any specific person in the commission of offence---Mere allegation of commission of heinous offences or a person being involved in other cases, was not sufficient to withhold bail, as every case was to be considered on its own merits--Accused was entitled to benefit of doubt even at the stage of bail---Facts and circumstances from the perusal of police file were such that accused appeared to be entitled to be released on bail---Accused was granted bail, in circumstances.

Muhammad Ayaz Soomro for Applicant.

Mushtaque Ahmed Abbasi Asstt. A.-G. for the State.

Imdad Ali N. Awan for the Complainant.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1882 #

2006 P Cr. L J 1882

[Karachi]

Before Khilji Arif Hussain, J

DEEDAR ALI SARIO, A.S.-I. and 4 others----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.290 of 2006, decided on 3rd July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.222 & 225-A---Bail, grant of---Allegations against accused, who were police constables, was that some accused persons in their custody, escaped due to their deliberate negligence in performing their official duties---F.I.R. showed that one of the applicants opened the lock-up to serve the meal, to accused persons in lock-up and accused persons by pushing succeeded to escape away from the police custody---Ingredients of Ss.222 and 225-A, P.P.C. appeared to be missing in circumstances---Ingredients of Ss.222 & 225-A, P.P.C. being missing in the case and it was yet to be established whether applicants had intentionally helped in rescuing accused persons from the custody, they were admitted to bail.

Muhammad Ramzan v. The State 2006 PCr.LJ 408 ref.

Muhammad Ayaz Soomro for Applicants.

Muhammad Ismail Bhutto for the State.

PCRLJ 2006 KARACHI HIGH COURT SINDH 1886 #

2006 P Cr. L J 1886

[Karachi]

Before Mushir Alam and Munib Ahmed Khan, JJ

MUHAMMAD HASHIM----Petitioner

Versus

PRESIDING OFFICER, SPECIAL BANKING COURT (OFFENCES IN BANKS), SINDH AT KARACHI and 7 others----Respondents

Criminal Appeal Nos.228 and Constitution Petition No.D-229 of 2006, decided on 17th August, 2006.

Imports and Exports (Control) Act (XXXIX of 1950)---

----Ss. 3, 5-A & 5-B [as amended by Imports and Exports (Control) (Amendment) Ordinance (V of 1980)]---Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), Ss.3, 4, 6 & 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Jurisdiction of Special Court (Banking)---Appellant/petitioner had challenged jurisdiction of Special Court (Offences in Banks) which had convicted him, contending that allegation against him, at the most, was in respect of irregularities in export as well as of mischief or fraud against foreign trade counterpart; but nothing was on record to show that Bank was involved in any way; in the matter, in any respect, or was connected to the Banking Business in any way---Matter respecting import/export was between two private parties and allegations against petitioner, were not in respect to any act by which he had committed any fraud upon the Bank---Special Court (Banking), in circumstances could not exercise jurisdiction, while Commercial Courts established under Imports and Exports (Control) Act, 1950 (as amended), could exercise jurisdiction in the matter---Summary procedure had been provided through the Commercial Courts---Banks, though were involved in most of the foreign commercial transactions of export, but every malpractice or breach of contract by the importer or exporter, did not bring cause within the meaning of Special Court (Banking) or the other Banking Court and specially in the circumstances when there was a special forum to deal with specific situation, then except that forum no other forum could take cognizance until and unless causes were independent to the extent provided for the action by two separate forums---Offence, alleged in both F.I.Rs. in the present case, being not in respect of Banks nor connected or incidental to it, Special Court (Banking) had wrongly assumed jurisdiction---Order of said Court was set aside, in circumstances.

Qazi Mushtaq Ahmed v. The State NLR 1988 Criminal 462; Sikandar Ali v. The State 1989 PCr.LJ 613; 1989 PCr.LJ 613 and 1986 Law Notes (Lahore) 91 ref.

Syed Muhammad Kazim Hussain for Petitioner.

Ms. Sofia Saeed, Standing Counsel along with Sher Ali, Deputy Director (EPB) and Bakhtiar Channa, Assistant Director Legal, F.I.A./CCC, Karachi for Respondents.

Labour Appellant Tribunal Balochistan

PCRLJ 2006 LABOUR APPELLANT TRIBUNAL BALOCHISTAN 587 #

2006 P Cr. L J 587

[Lahore]

Before Syed Shabbar Raza Rizvi, J

SHAHBAZ and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.255/B of 2006, decided on 13th February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.354/337-A(ii)/34---Pre-arrest bail, refusal of---Previous bail application filed by the 'accused was dismissed by High Court on 6-1-2006---Despite that, counsel for the accused had filed present bail application on the following day i.e. 7-1-2006, suppressing the dismissal of earlier bail application on 6-1-2006---For said reason alone the bail application was dismissed---Provincial Bar Council was directed by the High Court to take appropriate action against the Advocate in the light of the decision of Supreme Court in Zubair's case reported as PLD 1986 SC 173 and the Legal Practitioners Act.

Zubair's case PLD 1986 SC 173 ref.

Nemo for Petitioners.

Lahore High Court Lahore

PCRLJ 2006 LAHORE HIGH COURT LAHORE 13 #

2006 P Cr. L J 13

[Lahore]

Before Hamid Ali Shah, J

TARIQ MASIH --- Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION NISHTAR COLONY, LAHORE and 2 others---Respondents

Criminal Miscellaneous No. 146/H of 2005, decided on 27th April, 2005.

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

----S. 491---Habeas corpus petition---Custody of the minor---Principles---High Court in its jurisdiction under S.491, Cr.P.C. in respect of matters relating to the custody of the minor child is more parental in nature than anything else---Such dispute cannot be resolved on the basis of any technicality nor on the principles of law completely divorced from the reality of situation.

Muhammad Rafique v. Muhammad Ghafoor PLD 1972 SC 6 and Hina Jilani, Director of AGHS Legal Aid Cell v. Sohail Butt PLD 1995 Lah. 151 ref.

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

----S. 491---Habeas corpus petition---Scope---Validity of marriage not to be determined in the proceedings---Inappropriate and undesirable; if not illegal, for the High Court to have determined the fate of the couple by adjudicating the validity of marriage on the touchstone of the Injunctions of Islam, in the proceedings under S.491, Cr.P.C.

Abdul Waheed v. Mrs. Asma Jahangir and another PLD 2004 SC 219 ref.

----S. 491---Habeas corpus petition---Custody of the minor---Definite proof regarding the paternity of the disputed child as claimed by the petitioner was .lacking---Disputed child was recovered from the respondent who remained throughout in his custody, prior to his recovery through an order of High Court---Age of the petitioner's son was not exactly the same, as that of the disputed child---Minor was in the custody of the respondent who had brought him up, which prima facie had proved his claim in respect of the minor---Allegation that the respondent had taken the custody of the minor being an unclaimed child, was without any definite proof and was based on hearsay evidence---D.N.A. test carried with the mutual consent of the parties had revealed that the disputed child was the biological son of the respondent from whose custody he was recovered---Petition was dismissed in circumstances.

Muhammad Rafique v. Muhammad Ghafoor PLD 1972 SC 6; Hina Jilani, Director of AGHS Legal Aid Cell v. Sohail Butt PLD 1995 Lah. 151 and Abdul Waheed v. Mrs. Asma Jahangir and another PLD 2004 SC 219 ref.

Akbar Munawar Durrani and Sharafat Kasim Gill for Petitioner.

Najeeb Faisal Chaudhry, Addl. A.-G. for the State

Muhammad Ramzan Qadri for Respondents Nos.2 and 3.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 19 #

2006 P Cr. L J 19

[Lahore]

Before Ali Nawaz Chowhan, J

SIRAJ DIN---Petitioner

Versus

THE STATE and 4 others---Respondents

Writ Petition No.3603 of 2005, decided on 14th September, 2005.

Criminal Procedure Code (V of 1898)---

---S. 516-A---Qanun-e-Shahadat (10 of 1984), Art.163---Constitution of Pakistan (1973), Art.199---Constitutional petition---Order passed on oath---Validity---Matter pertained to Superdari of a trolly---Magistrate directed the parties to have recourse to Civil Court for the resolution of the dispute of the trolly between them, whereafter the same was directed to be handed over by the police to the party declared as its owner---Sessions Court, however, in revision petition decided the matter on oath by means of the impugned order---Validity---First Appellate Court while exercising visitorial jurisdiction could not have disposed of the said matter through a special oath in disregard of Art.163 of the Qanun-e-Shahadat, 1984, and the settled law---Court below appeared to be totally unaware of the law which had acted impulsively in passing the impugned wrong order---Said order was set aside accordingly and the case was remanded to Sessions Judge for disposing of the revision petition on merits in accordance with law.

Bashiran Bibi v. Nisar Ahmad Khan PLD 1990 SC 83 and Khalid Nawaz v. The State 1999 PCr.LJ 391 ref.

Ashfaq Qayyum Cheema for Petitioner.

Muhammad Tayyab Tahir for Respondent No.2.

M. Ghafoor, A.S.-I.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 33 #

2006 P Cr. L J 33

[Lahore]

Before M.A. Shahid Siddiqui, J

Mst. SHAHEENA NARGIS---Petitioner

Versus

DISTRICT POLICE OFFICER, BAHAWALNAGAR and another---Respondents

Criminal Miscellaneous No.92/11 of 2005/BWP, decided on 9th September, 2005.

Criminal Procedure Code (V of 1898)---

----S. 491---Anti-Terrorism Act (XXVII of 1997), Ss.11-EEE & 25---Habeas Corpus petition---Petitioner in her petition under S.491, Cr.P.C. had challenged arrest and detention of her husband caused by District Police Officer under orders of Home Secretary to Government under S.11-EEE of Anti-Terrorism Act, 1997---Police Officer concerned had not produced any record showing involvement of alleged detenu in any case and he also could not produce Notification containing name of alleged detenu in a list in Fourth Schedule as envisaged under S.11-EEE of Anti-Terrorism Act, 1997, whereunder detention of a person could only be made if his name was included in the list referred to in the said section---Deputy Superintendent of Police (Legal) and Assistant Advocate-General both having failed to produce that list, detention order passed by Home Secretary, was illegal and without lawful authority---Detenu was ordered to be released, in circumstances.

Khan Muhammad Hussain Azad for Petitioner.

Abdul Khaliq Khan Saddozai for the State.

Ghulam Ahmad, D.S.P. Legal, Bahawalnagar.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 34 #

2006 P Cr. L J 34

[Lahore]

Before Ijaz Ahmad Chaudhry, J

KHUSHI MUHAMMAD---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION MAKHDOOM RASHID, MULTAN and another---Respondents

Writ Petition No. 10189 of 2000, heard on 25th May, 2005.

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

----Ss. 13/14/10---Motion Pictures Ordinance (XLIII of 1979), S.18---Penal Code (XLV of 1860), S.292---Constitution of Pakistan (1973), Art. 199 --- Constitutional petition---Quashing of F.I.R.---Serious allegation of commission of Zina had been levelled against the accused and other co-accused---It was not denied either in the contents of the Constitutional petition or during the course, of arguments addressed by the defence counsel that the accused was caught red handed while indulging in commission of Zina with the girl along with his co-accused, which was a cognizable offence, but only the advantage of some of the Islamic teachings was being taken to avoid" the punishment---Accused wanted to take advantage of Verses 27 and 28 of Sura An-Nur, but he himself had failed to obey the Injunctions of Allah contained in the very next Verses 29 and 30---Government functionary was bound to scrutinize the matter reported by the bad character people before proceeding against the accused, but taking action into true allegation was not prohibited---Accused did not show that the allegation levelled against him was altogether false and the same was meant only to humiliate him---Accused also did not explain as to how the girl who was not related to him in any manner, was present in his house---Accused could prove his innocence at the trial by cross-examining the prosecution witnesses---No interference could be made in the matter merely on the assertions of the defence counsel or the case-law cited by him that while reporting the present occurrence the various Injunctions of Islam regarding peeping or entering into other houses, were not complied with by the complainant and other witnesses, as he himself was also bound to obey the Ordains of Islam prohibiting to commit Zina, which was not only a sin to be punished by the Almighty Allah on the Day of Judgment, but it had also been declared an offence to be penalized in this world---Moreover, in the cited judgments it had not been discussed that in the case of burning of the house, its dismantling or if some offence was being committed, one could not enter the house without permission---Contents of the F.I.R., prima facie, had made out a cognizable offence against the accused and other co-accused---Police officials on having received an information about the commission of a cognizable offence could enter the premises. without obtaining any permission from the Magistrate, otherwise if they had wasted time in obtaining such permission then an important piece of evidence was likely to be spoiled---Police officials would explain at the trial the circumstances under which they entered into the house and seen the occurrence, subject to the cross-examination by the accused, after submission of the report under S.173, Cr.P.C., but at such premature stage they could not be said to have transgressed their powers while registering the case ---F.I.R. could not be quashed merely on the ground that the complainant was also the Investigating Officer---Accused had failed to show as to what prejudice had been caused to him in his defence---Court could not allow the continuation of the crimes under the garb of technicalities and could not exercise extraordinary relief in favour of such criminals who fail to satisfy it about their innocence---No specific mala fides. or ill-will on the part of the complainant or other police officials had been alleged by the accused---Constitutional petition was dismissed in circumstances.

1968 PCr.LJ 1997; 1991 PCr.LJ 568; 1988 PCr.LJ 2321; 1999 MLD 1618; NLR 1994 Cr.LJ 503; PLD 1998 Lah. 35; Ayat 24:17 Al-Qur'an; A1-Furgaan No.25 Ayat No.68-70; Sura Al-Israa No.17 Ayah No.32; Sura No.24, Ayat No.30 and 31; Sahih Al-Bukhaari Hadith No.492 and Sahih(?) Muslim Hadith No.90; Al-Tabaraani; Saheeh Al-Jaami 5045; Al-Tirmaidhi 3118 Narrated Umar Ibn Al-Khattab, Tirmidhi transmitted it as authentic; Maryam, 59; Wasaelush Shia; Khesaal by Shaikh Saduq; Wasaeulsh Shia; Wasael; Nur, 3; Tafseer Mazhari Urdu Vol. VI p.320; Sura 2 Verse 194; PLD 1997 SC 408 and The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others PLD 1974 SC 151 ref.

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

----Art. 199---Criminal Procedure Code (V of 1898), S.561-A---Quashing of F.I.R.---Principles---F.I.R. cannot be quashed merely on the ground of the complainant also being an Investigating Officer.

PLD 1997 SC 408 ref.

----Art. 199---Criminal Procedure Code (V of 1898), S.561-A---Quashing of F.I.R.---Principles---Courts cannot allow the continuation of the crimes under the garb of technicalities and cannot exercise extraordinary relief in favour of such criminals who fail to satisfy the Courts about their innocence.

(d) Mala fides---

----Burden of proof ---Mala fides is one of the most difficult things to prove---Onus is entirely upon the person alleging mala fides to establish it, because to start with a presumption of regularity is attached to all official acts and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides ---Mala fides must be pleaded with particularity, and once one kind of mala fides is alleged, no one should be allowed to adduce proof of any other kind of mala fides, nor should any enquiry be launched upon merely on the basis of vague and indefinite allegations---Person alleging mala fides should also not be allowed a roving inquiry into the files of the Government for the purposes of fishing out some kind of mala fides in the case.

The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others PLD 1974 SC 151 ref.

Muhammad Khalid Ashraf Khan for Petitioner.

Mazhar Hayat Inspector and Ghulam Mustafa, A.S.-I. of Police Station Makhdoom Rashid with Record.

Date of hearing: 25th May, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 44 #

2006 P Cr. L J 44

[Lahore]

Before M. Bilal Khan, J

BASHARAT ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.7023/B of 2005, decided on 27th October, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), 'Ss. 302, 109, 148 & 149---Bail, grant of---Further inquiry---Investigation was carried out initially by Local Police and Investigating Officer recorded opinion of innocence qua all nominated accused in F.I.R.---Investigating Officer was of the opinion that fire of person other than accused had hit deceased and that accused was available at a distance of four/five acres from the venue of occurrence---Arrest of accused had been held in abeyance by Investigating Officer, thereafter, investigation was conducted by Superintendent of Police who too kept arrest of accused in abeyance as according to him no sufficient material was available against accused warranting his arrest---Said Investigating Officer vide Zimni also concluded that accused was present at a distance of four/five acres from scene of occurrence and that he did not play any role in the murder of deceased---Deceased had suffered only one fire-arm injury in the transaction and during course of post-mortem examination two injuries were found on his person---Said second injury according to F.I.R. had been attributed to another person who reportedly was in custody---Vicarious liability of accused needed to be determined at the time of trial---Case against accused pertained to realm of deeper appreciation of material available on the record, which could not be undertaken at bail stage---Any benefit arising out of alleged dishonest investigation or deficient material brought on record at bail stage would not be resolved in favour of prosecution---Case of accused being one of further inquiry within meaning of subsection (2) of S.497, Cr.P.C., he was admitted to bail.

Muhammad v. The State 1998 SCMR 454; Faraz Akram v. The State 1999 SCMR 1360 and Rashid v. The State 2003 PCr.LJ 1390 ref.

Asif Mahmood Cheema assisted by Mian Muhammad Tariq for Petitioner.

Khawaja Javed for the Complainant.

Kazim Iqbal Bhango for the State with Amanullah, S.-I.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 47 #

2006 P Cr. L J 47

[Lahore]

Before Sh. Abdur Rashid, J

MUHAMMAD MANSHA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8055/B of 2004, decided on 31-10-2005.

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

----S. 497--Refusal of bail on mere charge of absconding---Principle of refusing bail to absconder was not strictly applicable in each and every case---Bail could not be refused to an accused merely on score of abscondence, if fact of prosecution case otherwise made him entitled to grant of bail.

Abdul Rauf v. The State PLD 1996 Kar. 372 and Nazir Ahmad v. The State PLD 1996 Kar. 490 ref.

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

----S. 497---Withdrawal of earlier bail application---Effect of---Withdrawal of bail application simpliciter, would not mean that it was dealt with on merits nor it could be asserted that certain grounds were raised, but were repelled or had not found favour with Court as the case might be---Withdrawal of earlier bail application by accused, would not mean that it was decided on merits and it was only when earlier bail application was decided on merits, that while deciding subsequent bail application, the grounds which were not urged in earlier bail application although same were available, would not constitute a fresh ground justifying filing of another bail application---Contention that bail application having been withdrawn, no fresh ground was available to justify filing of subsequent bail application, was repelled in circumstances.

Muhammad Riaz v. The State 2002 SCMR 1,84 ref.

----S. 497---Bail, grant of---Effect of commencement of trial of case---If an accused was entitled to concession of bail, then factum of trial being in progress would not constitute legal bar to grant of bail.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Bail, grant of---Further inquiry---One of prosecution :witnesses had shifted his position---Said witness first made statement under S.164, Cr.P.C. before Magistrate, he appeared before High Court and owned said statement and then he was joined in investigation and he owned his said statement before police and accused was found to be innocent---Said prosecution witness, at the trial, changed his version---Prosecution was not going to produce second injured prosecution witness, who also got recorded his statement under S.164,Cr.P.C. and had exonerated the accused---Injured prosecution witnesses whose presence at he scene of occurrence stood established, were not supporting prosecution case as well as presence of accused at the scene of occurrence and his having participated in same---Said facts had made out case of accused a matter of further inquiry---Accused was allowed bail, in circumstances.

Ch. Imran Raza Chadhar for Petitioner.

Syed Ehtasham Qadir Shah for the Complainant.

Muhammad Nadeem Chaudhry for the State with Muhammad Javaid, S.-I. with record.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 78 #

2006 P Cr. L J 78

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD OBAID IQBAL and others---Petitioners

Versus

KHADIM HUSSAIN and others---Respondents

Criminal Revision No.305, Criminal Appeals Nos.317, 716 and 438 of 2003, decided on 8th July, 2005.

Penal Code (XLV of 1860)---

----Ss. 302, 396 & 397---Anti-Terrorism Act (XXVII of 1997), S.7---Criminal Procedure Code (V of 1898), 5.439---Revision---Appreciation of evidence---Awarding lesser sentence---Three accused while armed with fire-arms, committed robbery and in consequence to the firing of said three accused brother of complainant died while other received injury---Trial Court tried accused under Ss.302(b) & 34, P.P.C. and sentenced them to imprisonment for life---Reason given by Trial Court for awarding lesser sentence was that it could not be said with certainty that whose fire hit the deceased---High Court was not satisfied with said reason of Trial Court because accused while armed with fire-arms, had come to the spot with the intention that if anybody would resist, he would be done to death and in consequence of their above act an innocent person was not only robbed of huge amount, but also done to death and one other was seriously injured---Such-like offences in the Society being at peak, people were not safe not only inside their houses, but also on the roads---High Court issued a show-cause notice to all accused that why their sentences should not be enhanced from life to death, if case was ultimately proved against them---Accused would not be released from jail till final disposal of revision and connected matters.

Muhammad Sharif v. Muhammad Javed PLD 1976 SC 452 ref.

Abdul Hafeez Ansari for Petitioners.

Muhammad Ashraf Kamboh, Mazhar Iqbal Sidhu and Syed Muhammad Asghar Naeem for Respondents.

Mirza Abdullah Baig for the State.

Date of hearing: 8th July, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 84 #

2006 P Cr. L J 84

[Lahore]

Before Khawaja Muhammad Sharif, J

ALLAH DITTA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.2099 of 2003, heard on 17th May, 2005.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---F.I.R. was lodged with a delay of two days while distance between place of occurrence and police station was only fifteen kilometers---Complainant was not an eye-witness of occurrence---Both prosecution witnesses were closely related to deceased and a bare perusal of their examination-in-chief would show that they were not present at the spot---On same set of evidence three co-accused were acquitted from the case and neither the State nor complainant had assailed their acquittal---Where ocular account was disbelieved qua some accused and believed qua other accused, strong and independent corroboration was required which was very much lacking in the present case---Prosecution had failed to prove its case against accused beyond any shadow of doubt to sustain conviction---Prosecution case was full of doubts and on the basis of such a shaky evidence, conviction and sentence awarded to accused could not be maintained, same having not come through unimpeachable sources, being untrustworthy and unreliable, unable to stand the test of judicial scrutiny---Impugned judgment of Trial Court was set aside and accused was acquitted from the charge and was released.

Iftikhar Hussain and another v. State 2004 SCMR 1185 ref.

M. Asghar Khan Rokhari for Appellants.

S.D. Qureshi for the State.

Nemo for the Complainant.

Date of hearing: 17th May, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 91 #

2006 P Cr. L J 91

[Lahore]

Before Khawaja Muhammad Sharif and Mian Muhammad Najam-uz-Zaman, JJ

ZULFIQAR AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.43 of 2000 and Murder Reference No.75 of 2000, heard on 8th June, 2005.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Though nobody was named in the F.I.R. as accused and motive was also not mentioned, but complainant who was not only maternal uncle of deceased, but also of accused had stated in F.I.R. that it was the accused who came to the house of complainant and told him that there were fire-shots and then hue and cry was also heard which seemed to be of the deceased; thereafter they went outside and saw that dead body of deceased was lying in the pool of blood---Had complainant any motive to falsely implicate accused who was close relative, he could have named him in the F.I.R.---Last seen evidence was furnished by two prosecution witnesses who had some relationship with accused and there was also evidence of recovery of four empty cartridges which were recovered from the spot and were sent to Fire-arm Expert---Twelve bore gun was recovered from the garden belonging to accused which was sent to Fire-arm Expert and report of empties and said same was positive---Defence counsel had himself admitted that accused had committed murder of deceased for grabbing of land for the reason that he had no male issue---Conviction of accused was maintained on basis of said circumstantial evidence corroborated by a very strong piece of evidence.

1996 SCMR 1747 and 1998 PCr.LJ 216 ref.

Muhammad Bashir Piracha for Appellant.

Tanvir Iqbal Khan, A.A.-G. for the State.

Date of hearing:,8th June, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 107 #

2006 P Cr. L J 107

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD FAROOQ and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 229-J of 2002, heard on 11th March, 2005.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Appreciation of evidence---Both prosecution witnesses claimed to have seen deceased lady being dragged by accused, but no attempt was made by them to rescue her nor they informed the complainant or any other co-villager---Such conduct of prosecution witnesses was very unnatural and unbelievable---Doctor, who conducted post-mortem examination, never observed the wounds of dragging on the person of deceased nor during investigation marks of dragging were round by Investigating Officer at the place of occurrence---Prosecution case was that dead body of deceased lady was found lying in the house of father of accused, but no direct evidence was on record was available to establish that house from where dead body was recovered was possessed or owned by father of the accused---Investigating Officer had stated that place of occurrence was surrounded by inhabited houses and same was situated in the Chowk of the village---In such-like situation it was unbelievable that dragging of deceased by accused would go unwitnessed or unnoticed by other villagers---Day of occurrence being Nikah ceremony day of co-accused, it could not be believed that said co-accused could commit such offence on day of his Nikah ceremony---Said facts were sufficient to doubt the credibility of prosecution case and accused were entitled to. get. the benefit of doubt---Conviction and sentence of accused were set aside and they were acquitted from charge and were released.

Ms. Sabahat Rizvi for Appellants.

Ms. Raeesa Sarmet for Respondent.

Date of hearing: 11th March, 2005.

2006 P Cr. L J 157

[Lahore]

Before Muhammad Farrukh Mahmud, J

ABDUL REHMAN---Petitioner

Versus

S.H.O. POLICE STATION KOT SUMABA, RAHIM YAR KHAN and another---Respondents

Writ Petition No. 1507 of 2004/BWP, heard on 21st July, 2004.

Criminal Procedure Code (V of 1898)---

----S. 22-A---Penal Code (XLV of 1860), S.489-F---Constitution of Pakistan (1973), Arts.89 & 199--- Constitutional petition---Registration of F.I.R.---Petitioner in his application filed under 5.22-A, Cr.P.C. 'sought registration of case for offence under S.489-F, P.P.C. against person who issued a cheque in favour of petitioner which was bounced---Application filed by petitioner was dismissed by Additional Sessions Judge on the ground that Ordinance (Criminal Law (Amendment) Ordinance (No.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---President had not promulgated said Amending Ordinance (LXXXV of 2002) whereby S.489-F, P.P.C. was introduced in exercise of his powers under Art.89 of the Constitution, but it was introduced in exercise of his powers under Provisional Constitution Order No.1 of 1999 read with Provisional Constitution Order No.9 of 1999 and Art.5-A(1) of Order 9 of 1999, had clearly laid down that Ordinance promulgated by President was not subject to limitation as to its duration prescribed in the Constitution, therefore, it could not be argued that since Ordinance was never placed before National Assembly within the period of four months of its promulgation, it had lapsed on account of time framework provided under Art.89 of the Constitution---Legal Framework Order, 2002 was promulgated on 21-8-2002 and legislation made between 12-10-1999 to 21-8-2002 were saved through Art.270-AA(2) of the Constitution, which Article was introduced -by the said Order---Constitution (Seventeenth Amendment) Act, 2003 was promulgated and by Act of Parliament, all laws made between 12-10-1999 to 31-12-2003 were validated as provided under newly added Art.270-AA of the Constitution---Provisions of 5.489-F, P.P.C. introduced through Criminal Law (Amendment) Ordinance, (LXXXV of 2002), in circumstances were alive and in force---Impugned order whereby application of petitioner for registration of case was dismissed by Additional Sessions Judge, was set aside declaring same to be without lawful authority and of no legal effect---Application of petitioner filed under S.22-A, Cr.P.C. would be deemed to be pending before Additional Sessions Judge, who would decide same after hearing parties, in accordance with 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.

Ahmad Mansoor Chishti, A.A.-G. for Respondent No. 1.

Malik Sajid Feroz for Respondent No.2.

Date of hearing: 21st July, 2004.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 187 #

2006 P Cr. L J 187

[Lahore]

Before Muhammad Muzammal Khan, J

Sayed SAFDAR ALI RAZVI---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION CIVIL LINES, LAHORE and 2 others---Respondents

Writ Petitions No. 11087/Q, 11088, 11089 and 11090 of 2004, decided on 29th September, 2005.

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

----Ss. 489-F, 406, 420, 468 & 471---Constitution of Pakistan (1973), Art. 199 --- Constitutional petitions---Quashing of F.I.Rs.---Dispute in the petitions had emerged out of sale transactions between the parties regarding different pieces of land---Accused according to record had not issued the cheques with dishonest intention and at the time of presenting the same in the Bank for encashment he was also not liable to fulfil any of his obligations under the agreements of sale by the complainants, as he was liable to pay the balance price only after issuance of No Objection Certificate by the Development Authority and notice by the complainants through registered cover, but those were never issued---Section 489-F, P.P.C. was not on the statute book at the time of issuance of cheques and the same had no retrospective operation---Complainants had acted with malice, as having sold their lands to third parties they had got criminal cases registered in order to get out of their binding obligations under the agreements of sale with the accused and to keep pressure on him by putting criminal law in motion---Complainants had apparently acted with ulterior motives in counter-blast to the cases got registered by the accused against the wife and mother of the complainants, to usurp big amounts of earnest money received by them and to keep away the accused from asserting his rights under the aforesaid agreements---No cheating, dishonest misappropriation or forgery for the purpose of cheating were also made out against the accused from the averments, made in the F.I.R. and as such Ss.420, 406, 468 & 471, P.P.C. were not attracted in the case---No cognizable offence having been committed by the accused, registration of the F.I.Rs. against him amounted to abuse of process of law---Impugned F.I.Rs. were quashed in circumstances being illegal, void and of no legal effect---Constitutional petitions were accepted accordingly.

A. Habib Ahmad v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353; Ahmad Saeed v. The State and another 1996 SCMR 186; 2002 PCr.LJ 9; Nabi Ahmad v. Home Secretary PLD 1969 SC 599; Income Tax Officer v. Suleman Jiwa PLD 1970 SC 80; Abdur Rehman v. The State 1978 SCMR 292; Farid Khan v. The State PLD 1965 (W.P.) Pesh. 31; Hashim Ali v. Abdul Karim PLD 1968 Lah. 188; Mir Ghaus Bakhsh Bizinjo v. Islamic Republic of Pakistan PLD 1976 Lah. 517 and Bhai Khan v. The State PLD 1992 SC 14 ref.

(b) Interpretation of statutes---

----Retrospective operation of statute---No statute shall be construed to have a retrospective operation unless such a construction appears very clearly or through necessary implication from the Act itself.

Nabi Ahmad v. Home Secretary PLD 1969 SC 599; Income Tax Officer v. Suleman Jiwa PLD 1970 SC 80; Abdur Rehman v. The State 1978 SCMR 292; Farid Khan v. The State PLD 1965 (W.P.) Pesh. 31; Hashim Ali v. Abdul Karim PLD 1968 Lah. 188; Mir Ghaus Bakhsh Bizinjo v. Islamic Republic of Pakistan PLD 1976 Lah. 517 and Bhai Khan v. The State PLD 1992 SC 14 . ref.

---Art. 12---Administration of criminal justice---Protection against retrospective punishment---Recording of convictions and sentences in the criminal jurisdiction under ex post facto laws are prohibited.

Ch. Muhammad Bashir for Petitioner.

Sheikh Abdus Sattar and M. Zahoor Nasir for Respondents.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 196 #

2006 P Cr. L J 196

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

ABDUL WAHID---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1648 of 2004, heard on 28th September, 2005.

Penal Code (XLV of 1860)---

----S. 409---Prevention of Corruption Act (II of 1947), S.5(2)---Appreciation of evidence---Due to strict security at the store and physical checking while going out of the premises, accused could not possibly take medicines out of the store---Table allocated to the accused was lying in a big hall along with other tables which was divided into three portions by affixing racks, but admittedly one could go from one table to another table by scaling over the racks---Table incharge, according to the practice, used to hand over the keys of his subsection to the Drug Superintendent at the closing hours who further used to deliver the keys to the Security Officer---Accused, thus, was no more custodian of the medicines at the store after closing hours and everything was left at the mercy of Security Officer---Authorized Officer in case of emergency also could take out the medicines with the permission of the concerned Committee for onward transmission to the Hospitals---Many months prior to the occurrence the accused admittedly had moved an application about the insecurity of the medicines, but no action was taken in that regard and the reply conveyed to him was that the same system was to continue---Accused, thus, could not be said to be the sole custodian of the medicines at his table and that he had misappropriated the same---Benefit of doubt was extended to accused in circumstances and he was acquitted accordingly.

Muhammad Saeed Ansari assisted by Muhammad Azam for Appellant.

Hafiz Muhammad Asif for the State.

Date of hearing: 28th September, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 199 #

2006 P Cr. L J 199

[Lahore]

Before Muhammad Jehangir Arshad, J

Mst. IRFANA FAIZ and another---Petitioners

Versus

THE STATE and 2 others---Respondents

Writ Petition No.5988/Q of 2005, decided on 6th October, 2005.

(a) 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.---Petition was based on the ground that both the accused being sui juris had married with their free-will and the right of marriage having been protected by the Constitution, registration of the F.I.R. against them was not warranted by law---Fact that male accused had allegedly divorced his former wife, real sister of female accused, and had married the female accused just after three days, could not be approved on any legal or moral consideration---Validity---Divorce before the expiry of Iddat period was not effective---Accused in the present case, having married the lady (accused) who stood within the prohibited degree before the expiry of Iddat period, such marriage could not be legalized---Equitable/discretionary relief could not be extended/ exercised in constitutional petition when grant of the same was immoral, unfair or against the dictates of good conscience and fairplay---Marriage between the accused, in circumstance, being an unholy alliance, could not be perpetuated by High Court through the relief sought in the constitutional petition---Even otherwise accused having not approached High Court with clean hands, were not entitled to such relief---Constitutional petition was dismissed in limine in circumstances.

Hafiz Abdul Waheed Ropari v. Mrs. Asma Jehangir and another PLD 2004 SC 219 distinguished.

Secretary to the Government of the Punjab v. Ghulam Nabi PLD 2001 SC 415; Raunaq Ali's case PLD 1973 SC 236; Nisar-ul-Haq v. Tehsil Municipal Administrator City PLD 2002 Lah. 359 and Shaukat Ali v. Altaf Hussain Qureshi and another 1972 SCMR 398 ref.

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

----Art. 199---Constitutional petition---Grant of relief by High Court---Equitable/discretionary relief cannot be extended in constitutional petition when grant of such relief is immoral, unfair or against the dictates of good conscience and fairplay.

Secretary to the Government of the Punjab v. Ghulam Nabi PLD 2001 SC 115 ref.

----Art. 199---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11---Constitutional petition---Social and moral environments prevailing in community not to be ignored---Courts do not function in vacuum and must take due notice of social and moral environments prevailing in the community, such as tendency on part of some young men to abuse provisions of law in furtherance of their illicit love affairs.

Shaukat Ali v. Altaf Hussain Qureshi and another 1972 SCMR 398 ref.

(d) Islamic law---

---Divorce---Divorce before the expiry of Iddat period was not effective.

Malik Muhammad Jafar Arain for Petitioner.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 202 #

2006 P Cr. L J 202

[Lahore]

Before Fazal-e-Miran Chauhan, J

ARIF BARLAS---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2392/B of 2005 decided on 6th October, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.408/419/420/468/471---Bail, grant of---Accused had allegedly embezzled the amounts received from different Institutions, Companies and private individuals for the advertisements published in a daily newspaper---F.I.R. was lodged after . an unexplained delay of three years when the accused had left service---Complainant had not issued any show-cause notice to the accused for the embezzled amount---Case against accused entirely depended upon documentary evidence, which being in possession of prosecution could not possibly be tampered with by him---Offences with which the accused was charged did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Offences under Ss.468 & 471, P.P.C. were non-cognizable---Negligence on the part of the complainant Organization also reflected otherwise on its bona fides---Major portion of the alleged embezzled amount, according to record, was outstanding and due from different Organizations---Case against accused warranted further inquiry as envisaged under S.497(2), Cr.P.C. in circumstances---Accused was admitted to bail accordingly.

Abid Khan v. The State 2005 PCr.LJ 985; Saeed Ahmad v. The State 1996 SCMR 1132; Abdul Qudus v. The State 2002 PCr.LJ 430; 2004 PCr.LJ 1885 and 2004 SCMR 729 ref.

Khalid Ashraf Khan for Petitioner.

Malik Muntazir Mandi for the Complainant assisted by Rao Atif Nawaz for the State with Muhammad Iqbal, Head Constable Police Station Multan Cantt. with record.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 207 #

2006 P Cr. L J 207

[Lahore]

Before Muhammad Nawaz Bhatti, J

MUHAMMAD RAFI RAZA---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION THINGI, DISTRICT VEHARI and 3 others---Respondents

Writ Petition No.4365 of 2005, decided on 13th October, 2005.

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

----Ss. 395/452/337-J---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Allegations against the accused pertained to the commission of offences of dacoity, illegal confinement and causing hurt by means of poison---Matter having fallen within his territorial jurisdiction, S.H.O. was justified to register the case on the application of a private person and investigate the same in accordance with law---Accused had not joined the investigation and was still at large---Magistrate had issued warrants of arrest of the accused who instead of approaching High Court for quashing the F.I.R. at the very early stage should have joined the investigation---Constitutional petition was dismissed in limine in circumstances.

Mian Asim Sharif v. I.D.B.P. and others 2005 CLD 436 distinguished.

Naseem Baig v. M. Iqbal and others 1991 SCMR 315; PLD 1967 SC 461; PLD 1967 SC 317; 1968 SCMR 386; PLD 1981 SC 607; 1971 SCMR 698 and Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan and others 1994 SCMR 2142 ref.

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

----S. 561-A---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction of High Court---Scope---Quashing of proceedings---High Court can quash the proceedings if satisfied from the cogent material that prosecution was launched for improper motive to harass the accused or its continuance would be an abuse of the process of law.

Naseem Baig v. M. Iqbal and others 1991 SCMR 315 ref.

----S. 561---Constitution of Pakistan (1973), Art.199---Constitutional' petition---Quashing of proceedings---Remedy is not to be used to divert the ordinary course of criminal procedure.

PLD 1967 SC 461 ref.

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

----Ss. 561-A, 265-K & 249-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of proceedings---Scope---Remedy for quashing of proceedings is not available when alternate remedy under Ss.265-K & 249-A, Cr.P.C. is available.

PLD 1967 SC 317 ref.

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

----S. 561-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of proceedings--Scope---Quashing of proceedings at early stage is neither permissible nor preferred---Every criminal case should be allowed to proceed on its merits.

1968 SCMR 386; PLD 1981 SC 607 and 1971 SCMR 698 ref.

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

----S. 561-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of proceedings---Scope---High Court cannot assume the role of investigator.

Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan and others 1994 SCMR 2142 ref.

Muhammad Khalid Ashraf Khan for Petitioner.

Mubashar Latif Gill, A.A.-G. for the State.

Sohail Ahmad Janjua for Respondent No.2.

Abdul Latif, S.-I.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 211 #

2006 P Cr. L J 211

[Lahore]

Before Sh. Javaid Sarfraz, J

Malik SAJJAD AHMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No.193 of 2005, heard on 3rd October, 2005.

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

----Ss. 302/324/148/149---Juvenile Justice System Ordinance (XXII of 2000), S.7---Criminal Procedure Code (V of 1898), S.439---Accused was declared as juvenile by the Trial Court---Validity---Complainant had relied on the School Leaving Certificate showing the accused of 23 years of age---Authenticity of the said certificate had been denied by the accused---Genuineness of other documents produced by the parties was also challenged---Trial Court, therefore, had rightly referred the matter to the Medical Board for opinion---Age of the accused according to the opinion of the Medical Board was 18 years (plus or minus one year) and, thus, he was a child within the scope of S.2(b) of the Juvenile Justice System Ordinance, 2000---Report of the Medical Board, in circumstances, carried weight being a determining factor for deciding the age of the accused---Trial Court had rightly separated the trial of accused treating him as a juvenile---Criminal revision was dismissed accordingly.

Hassan Zafar v. The State 2001 PCr.LJ 1939; Mahboob Ahmad v. The State and 2 others 2002 PCr.LJ 2034; Muhammad Akram v. Muhammad Haleem 2002 PCr.LJ 633; Muhammad Ishaque v. Muhammad Nadeem and another 2001 MLD 1561 and Sultan Ahmad v. Additional Sessions Judge, Mianwali PLD 2004 SC 758 ref.

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

--S. 7---Determination of age of accused---When genuineness of certificates is questioned then the normal course for the Trial Court is to get the accused medically examined by a competent Medical Board to reach a just decision regarding his age.

Sultan Ahmad v. Additional Sessions Judge, Mianwali PLD 2004 SC 758 ref.

Altaf Ibrahim Qureshi for Petitioner.

Malik Muhammad Ramzan Khalid, A.A.-G. for Respondents.

Date of hearing; 3rd October, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 215 #

2006 P Cr. L J 215

[Lahore]

Before Sh. Javaid Sarfraz, J

BASHIR AHMAD----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.2415/B of 2005, decided on 27th October, 2005.

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---Allegation against accused was that he had received amount in instalments for providing job to the complainant---Delay of five years in lodging 'complaint to authorities and no cogent explanation had been given for said _de ay---No date, month, year and time had been mentioned regarding alleged payment of amount---No recovery. had been made from the accused---Accused though had already been convicted in the case under S.161, P.P.C. and S.5(2) of Prevention of Corruption Act, 1947 to three years, but he had filed appeal against his said conviction which was pending adjudication---Accused, in circumstances, could not be said to be convicted person and that he was not entitled to bail--Person could only be called a convict if a competent Court of law had convicted him and same had been finally decided in appeal---Accused, in circumstances could not be refused bail on account of conviction passed by Trial Court in earlier case---Accused could not be kept behind the bars awaiting final conclusion of his trial which was not possible in near future---No useful purpose would be served by keeping accused behind the bars for such an indefinite period---Bail could not be refused as punishment because there was no concept of punishment before conviction---Offences against accused did not fall within prohibitory clause of 497, Cr.P.C.---Accused was allowed bail, in circumstances.

Moundeor and others v. The State PLJ 1989 SC 1; Abdul Halim v. The State PLD 1986 Pesh. 92; Bashir Ahmad Zafar v. The State 1983 PCr.LJ 141(2); Ch. Abdul Malak v. The State PLD 1968 SC 349 and Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

Abdul Salam Alvi for Petitioner.

Zafar Mehmood Anjum for the State.

Muhammad Zafar, C.O. Anti-Corruption Lodhran.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 221 #

2006 P Cr. L J 221

[Lahore]

Before Khawaja Muhammad Sharif and Mian Muhammad Najam-uz-Zaman, JJ

MUHAMMAD PERVAIZ----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.437, Criminal Revision No.170 and Murder Reference No.722 of 2000, heard on 7th June, 2005.

Penal Code (XLV of 1860)---

----Ss. 302 & 324---Appreciation of evidence---Deceased was brother of complainant and injured prosecution witness was son of the deceased---Doctor who conducted post-mortem examination of deceased, had given duration between injury and death as 2/3 hours and between death and post-mortem 24 hours, which cast doubt on prosecution story regarding date and time of occurrence---Case of prosecution was that the son of complainant was also injured, but prosecution failed to bring on record his Medico-legal report---Doctor who conducted post-mortem examination of deceased had observed that at the time of post-mortem examination bandage was on wound of deceased and number of injections were found 'given to deceased, but prosecution had failed to explain from where those bandages were applied and who was the person who had applied those injections---Occurrence had taken place in the year 1998, trial was conducted in the year 2000, but till 2005 no Medico-legal report of injured son of complainant was produced by complainant---Four crime empties were recovered from the spot, those were sent to Fire-arms Expert, then licensed pistol of accused was also taken into possession and that was also sent to Fire-arms Expert, but prosecution with mala fide intention and ulterior motive did not produce that report---Prosecution never produced Investigating Officer---Motive behind the occurrence was that deceased had got a stay order against accused, but no copy of any civil suit or any stay order passed by Civil Court was produced by prosecution before Trial Court---Prosecution had not been able to prove its case against accused beyond any shadow of doubt---Conviction and sentence recorded against accused by Trial Court were set aside and accused was released.

1981 SCMR 795; 1994 PCr.LJ 170; 2000 PCr.LJ 1241 and 2005 SCMR 417 ref.

Sardar Muhammad Ishaq for Appellant.

Malik Rab Nawaz Noon for the Complainant.

Ch. Salim-ul-Haq, A.A.-G. for the State.

Date of hearing: 7th June, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 234 #

2006 P Cr. L J 234

[Lahore]

Before Sh. Javaid Sarfraz, J

NAZAR HUSSAIN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1009/B of 2005, decided on 27th April, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.272, 273 & 420---West Pakistan Pure Food Ordinance (VII of 1960), Ss.5(a), 6(1)(a)(b)(c) & 23(c)---Pre-arrest bail, confirmation of---Complaint under Ss.269 & 273, P.P.C. had been filed before Special Magistrate about the offence in which accused was fined which was deposited by accused---Present F.I.R. was outcome of same occurrence, which was not permissible under law---Accused having deposited amount of fine, he was not liable to be punished again---All offences mentioned, except under S.23(c) of West Pakistan Pure Food Ordinance, 1960 were bailable and in bailable offence, bail was to be granted as of right and not as a grace---F.I,R. did not mention that accused had repeated offences--Even offence against accused did not fall within prohibitory clause of S.497, Cr.P.C.---Case of further inquiry having been made out, ad interim pre-arrest bail granted to accused, was confirmed.

PLD 1995 SC 34 ref.

Muhammad Rehman Khokhar for Petitioner.

Date of hearing: 27th April, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 242 #

2006 P Cr. L J 242

[Lahore]

Before Sh. Hakim Ali and Muhammad Jehangir Arshad, JJ

THE STATE and another----Appellants

Versus

MUHAMMAD SIDDIQUE and others----Respondents

Criminal Appeals Nos.83 and 42 of 1995/BWP decided on 18th May, 2005.

Penal Code (XLV of 1860)----

----Ss. 302, 324 & 109---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal---Counsel for the informant/appellant as well as State had conceded that acquittal of three accused persons was in accordance with judicial norms and principles permissible by law---Appeal to the extent of said accused persons was dismissed and their acquittal remained intact---Other accused, who was acquitted had got dual benefit of doubt in his favour---Once of pre-trial rules of benefit available to an accused and other of post-trial benefit of doubt extended to him on his acquittal by Trial Court, but when judgment smacked of perversity, unreasonableness, wrong and preconceived conception of acquittal, not stemming out from evidence, in such a situation Court could not maintain that judgment on the pretext of extension of benefit of doubt to an accused, who had got such a judgment to his score---Judgment which was the result of incorrect comprehension of facts and evidence and conclusions were leading to grave injustice to a party, could not be sustained and maintained by High Court---Trial Court had created reasons and grounds of acquittal by stating that there were differences and contradictions in the deposition of two doctors which were; length of injuries; measurement between the injuries; attempts for causing injuries; kind of weapons; causes of injuries, and duration of injuries---But all those reasons had fallen to the ground, when evidence was minutely examined in depth---Evidence of both "id doctors as well as the eye-witnesses could not be brushed aside who had not differed on that aspect---No material difference was found between evidence of those doctors with regard to duration of injuries---Impugned judgment had proceeded on wrong premises of facts, by incorrect appreciation of evidence---Case was remanded to Trial Court for re-hearing of same by granting opportunity to counsel for State, informant as well as to accused---Trial Court would decide case with care and caution strictly upon evidence brought on record by parties, upon law and merits of case.

Jam Sobha v. The State 2004 YLR 2320; Farrukh Sayyar and 2 others v. Chairman, NAB, Islamabad and others 2004 SCMR 1; Muhammad Ghayyur alias Ghori and others v. The State 1986 PCr.LJ 2344; Muhammad Sharif v. The State 1990 PCr.LJ 357; Sahib Khan and 4 others v. The State and others 1997 SCMR 871 and Abdul Qayyum v. State 1996 PCr.LJ 1427 ref.

Mirza Muhammad Nadeem for the State.

Malik Sadiq Mahmood Khurram for the Complainant.

M. Shamshir Iqbal Chughtai and A.R. Tayyib for Respondents.

Date of hearing: 18th May, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 251 #

2006 P Cr. L J 251

[Lahore]

Before Sardar Muhammad Aslam and Umar Ata Bandial, JJ

Mst. LATIFAN BIBI----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.3569/B of 2005, decided on 6th September, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of---No evidence had been collected to ascertain as to what was the quantity of narcotics allegedly recovered from the possession of accused---Accused, who was a female had a suckling child---Accused, in circumstances was entitled to concession of bail.

Pir Ashraf Ali Qureshi for Petitioner.

Arshad Ali Said Qureshi for the State.

Date of hearing: 6th September, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 263 #

2006 P Cr. L J 263

[Lahore]

Before Sh. Hakim Ali, J

Messrs ADAM SUGAR MILLS LIMITED and 2 others----Petitioners

Versus

TRADING CORPORATION OF PAKISTAN (PVT.) LTD. and 8 others----Respondents

Writ Petitions Nos.1437, 3094, 3243 and Criminal Miscellaneous No.894/Q of 2005, decided on 24th October, 2005.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Article 199 of the Constitution relates to jurisdiction conferred by the Constitution upon High Court---All other legislated or framed laws fall within the encompass of sub-constitutional legislation and they cannot claim superiority over the constitutional powers and jurisdiction vested under Art.199 of the Constitution upon High Court, as it has got vast powers and jurisdiction to deal with all the situations which have been brought to its notice through the institution or filing of the writ petition.

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

----Art. 199---Constitutional jurisdiction---Scope---Powers and jurisdiction of High Court cannot be restricted through any law which is not the part and parcel of the Constitution.

----Ss. 561-A, 249-A & 265-K---Inherent powers of High Court---Quashing of proceedings---High Court has inherent jurisdiction under S.561-A, Cr.P.C. in exceptional cases even to quash the proceedings without awaiting the order of Trial Court passed under S.249-A or 265-K, Cr.P.C.

Miraj Khan v. Gul Ahmad and others 2000 SCMR 122 ref.

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

----S. 406---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Breach of contract alleged by one party against the other party was the main cause for registration of the -Complainant Trading Corporation was claiming the sugar stock into its custody---Accused Mills in such a case would not be considered or held to have been entrusted with custody of the sugar or to have committed any criminal breach of trust---For the commission of offence under S.406, P.P.C. the entrustment, grant of possession or dominion over the property was most essential and in absence of the same the breach of trust could not follow---Plain reading of the F.I.R., thus, did not disclose the commission of an offence under 5.406, P.P.C. by the accused Mills and registration of case thereunder was illegal and unlawful, which could not be allowed to proceed as it would be an abuse of the process of law---Even otherwise, the F.I.R. being the result of the alleged breach of terms of the contract, the complainant Trading Corporation appeared to settle the civil dispute through initiation of criminal proceedings, which abuse could not be allowed to perpetuate---Impugned F.I.R. was quashed in circumstances.

Central Board of Revenue and others v. Khan Muhammad PLD 1986 SC 192; Miraj Khan v. Gul Ahmad and 3 others 2000 SCMR 122; Pir Bakhsh v. The Chairman Allotment Committee PLD 1987 SC 145; Abdul Waheed Qureshi v. Municipal Committee, Lalamoosa and 3 others 2004 YLR 1206; Waheed Azmat Sheikh v. Chairman Habib Bank Ltd. and 2 others 2002 CLC 929; Mst. Azra Israr v. Inspector-General of Police, Punjab and others PLD 2003 Lah. 1; Ahmad Saeed v. The State 1996 SCMR 186; M. Arshad v. The State PLD 2004 Lah. 70; Ghulam Qasim v. Nazir Ahmad and 3 others 1996 PCr.LJ 1187; Muneer Ahmad v. The State and 2 others 2004 YLR 2748; Haji Muhammad Ashraf v. The District Magistrate, Quetta and 3 others 2000 SCMR 238; Messrs Muhammad Siddique Muhammad Umar and another v. The Australasia Bank Ltd. PLD 1966 SC 684 and Muhammad Yaqoob v. S.H.O. and others 1997 MLD 2097 ref.

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

----S. 406---Punishment for 'criminal breach of trust---Entrustment, grant of possession or dominion over the property is one of the most essential part of the offence.

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

----S. 561-A---Inherent powers of High Court---Abuse of process of Court---Continuance of criminal proceedings in which there is no expectancy or probability of even charge succeeding, would be merely an abuse of process and nothing more.

(g) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition, institution of---Aggrieved party---Where a person has got any interest, may it be the smallest one, in the performance of legal duty of a person, functioning with affairs of Province or a Local Authority, he can file the petition.

Mian Abdul Ghaffar and Nadeem Iqbal Ch. for Petitioners.

Sardar Muhammad Hussain, Ahmad Mansoor Chishti for Respondent No.1.

Muhammad Akhtar Qureshi for Respondent No.7.

Shaheen Masood Rizvi, A.A.-G. and Jamshed Ali, S.H.O.

Date of hearing: 19th October, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 280 #

2006 P Cr. L J 280

[Lahore]

Before Sardar Muhammad Aslam, J

TARIQ MAHMOOD----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.213/J of 2000, heard. on 10th February, 2005.

Penal Code (XLV of 1860)---

---Ss. 302 & 316---Appreciation of evidence---Benefit of doubt---Complainant was not present at the time of occurrence---Complainant had stated that his father and brother entered the room and saw accused strangulating the deceased---Occurrence was reported with a considerable delay and complainant did not blame the accused in the first instance, but after consultation and deliberation, responsibility was fixed on the accused---Both prosecution witnesses had not heard conversation, alleged to have taken place between deceased and accused---Alleged strangulation of deceased had not taken place the way prosecution had asserted---Either she was made helpless to offer resistance, in any manner or was taken by surprise while sleeping---Observation of Medical Officer about injury on person of deceased had also indicated that she was strangulated by some soft material---Absence of grown up daughter of deceased from the home when incident came to their knowledge, was significant---Parents of deceased were not informed---Prosecution having failed to prove its case beyond reasonable doubt, judgment of Trial Court was set aside and accused was acquitted of charge by extending him benefit of doubt.

Ms. Sabahat Rizvi for Appellant.

Sittar Sahil for the State.

Date of hearing: 10th February, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 290 #

2006 P Cr. L J 290

[Lahore]

Before Ali Nawaz Chowhan and Umar Ata Bandial, JJ

MUHAMMAD WAHEED AKHTAR and others----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1 of 2005 in Criminal Appeal No.1554 of 2003, decided on 30th June, 2005.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S.302(b)---Suspension of sentence pending appeal---Suspension of sentence was sought on the ground that clash existed between ocular evidence and Medical evidence---Injury found at the back of deceased, was in fact exit wound and was not independent injury ascribed to accused---Matter, in circumstances was one which required further consideration---Sentence was suspended accordingly.

Muhammad Afzal and others v. State 1994 PSC (Crl.) 175 ref.

Rao Abdul Jabbar Khan for Petitioner/Appellant.

Date of hearing: 30th June, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 295 #

2006 P Cr. L J 295

[Lahore]

Before Syed Shabbar Raza Rizvi, J

KHADIM HUSSAIN----Appellant

Versus

THE STATE and another----Respondents

Criminal Appeal No.533 of 2000, decided on 28th February, 2005.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Appreciation of evidence---Benefit of doubt---Complaint was instituted after about 36 days of occurrence---Complainant, who was sister of deceased lived about 15 miles away from place of occurrence---Presence of complainant at the place of occurrence was not found when she was confronted in the Court during her cross examination---Contradiction existed with regard to electric light at the place of occurrence which was field of "Jawar"---Even otherwise how could a field of "Jawar" be electrified---Statement of one of prosecution witnesses was full of contradictions on all material points---Co-accused were acquitted by Trial Court and doubts of Trial Court regarding acquittal of said co-accused were understandable, but Trial Court should have applied same reasoning in case of accused also---Accused and co-accused had been attributed exactly a similar role i.e. causing dagger blow on the body of deceased---Accused persons had been attributed causing injuries on chest, abdomen and left arm of deceased---Such injuries were not specifically attributed to them separately---Witnesses were also same; only distinction was that recovery of a dagger was attributed to accused only---Benefit of doubt which had been extended to co-accused, should be equally given to the accused---Accused was given benefit of doubt, his conviction and sentence was set aside and he was honourably acquitted of all charges against him and was released.

Muhammad Yar Khan Daha along with Arshad Ali Chowhan for Appellant.

Syed Anwar-ul-Hassan Gillani for the State.

Date of hearing; 18th February, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 311 #

2006 P Cr. L J 311

[Lahore]

Before Muhammad Jehangir Arshad, J

JAM SHER MUHAMMAD----Petitioner

Versus

MANZOOR AHMAD and another----Respondents

Criminal Miscellaneous No.402/Q/BWP of 2005, decided on 16th November, 2005.

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

----Ss. 516-A, 517, 520, 522 & 561-A---Superdari of Tractor---Dispute about ownership of Tractor involved in a criminal case---Petition for setting aside order passed in revision---Dispute in the present case, was about ownership of property which was involved in criminal case, and Civil Court had exclusive jurisdiction to record and give findings about title of a person---Real owner of tractor in dispute was 'Zarai Taraqiati Bank' and unless loan liability of said Bank was liquidated, no one other than said Bank could be declared as owner of Tractor in dispute, notwithstanding that either of the two parties was in possession, and open transfer letter having been given by original transferee/lessee---Question as to which of the two parties, was in possession of original transfer letter having been issued by original transferee/lessee, to show his alleged title of Tractor in dispute, would become irrelevant and no useful purpose would be served to direct any party to approach civil Court for getting a verdict about their title and that would be no bar either against petitioner or respondent to approach civil Court for obtaining a verdict about his alleged title.

Tariq Naveed Ahmed v. Allah Ditta and 2 others 2004 PCr.LJ 1169; Qaiser Shafeeq Vohra v. The State and another 1991 MLD 2590; Humayun Azam v. Ch. Sadiq Inspector/S.H.O., Police Station Kunjah, District Gujrat and 3 others 1999 MLD 1676; Munir Ahmad v. Barkhurdar and 2 others 1992 SCMR 1454; Khalid Saleem v. Muhammad Jameel alias Billa and 6 others 1996 SCMR 1544; Zahuruddin v. Muhammad Inayatullah Khan and another 1973 PCr.LJ 288; Mst. Nadira Naeem v. Aziz Uddin and another 1997 PCr.LJ 1006 and Ch. Muhammad Farook v. The State and another 1970 PCr.LJ 1253 ref.

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

----Ss. 516-A, 517 & 561-A---Superdari---Petition for setting aside order---Question of Superdari should be answered in favour of person from whose possession disputed property was taken and same should be returned to him either till the decision of criminal Court or the findings recorded by the civil Court about title of contesting claimants---Tractor in dispute, having been taken into possession by police from the custody of respondent he was entitled to its Superdari---Appellate Court, while passing impugned order, was fully justified by setting aside order of Magistrate and restoring Superdari of tractor in dispute in favour of respondent subject to his furnishing sureties.

Sardar Muhammad Shamim Khan and Mirza Muhammad Nadeem Asif for Petitioner.

M.H. Bazmi for Respondent No.1.

Wajid Aftab for the State.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 338 #

2006 P Cr. L J 338

[Lahore]

Before Muhammad Farrukh Mahmud, J

ABDUL MAJID----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.242 and Criminal Revision No.171 of 2001, heard on 17th November, 2005.

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

----S. 302(b)---Appreciation of evidence---Accused, at the time of occurrence was a young boy of 19/20 years while deceased woman/wife of complainant was aged about 30/32 years---Complainant himself had stated that both accused and deceased had developed intimacy with each other and for that reason complainant had stopped accused from visiting his house, but it was never mentioned in the F.I.R. that deceased had ever stopped accused from visiting her house or that deceased had promised that she would not continue her relations with accused---Accused in said background had no reason to take the life of deceased, neither any reason was for accused to nourish any grudge against deceased so as to take her life---Occurrence had taken place in the mid of the night, but electric bulb mentioned in F.I.R. was not shown in either of the site plans prepared by Investigating Officer and the tracer---Eyewitness also did not state that any electric bulb was on---Deceased received eight injuries caused by a sharp-edged weapon on various parts of her body---Since deceased had been wearing clothes at the time of occurrence, there must have been corresponding holes on the clothes worn by deceased, but in inquest report, it was neither mentioned that clothes contained holes nor doctor had stated that clothes were perforated---Prosecution had failed to explain as to why clothes did not contain any hole---Prosecution case was that the accused who was a boy of 19 years, had been causing injuries to deceased in presence of complainant, his nephew and his uncle; in normal circumstances, said three adults would have taken positive steps to save the life of deceased, they could grapple with the assailant, cause injury to him, but according to F.I.R. they all tried to apprehend accused after occurrence who succeeded in running away---Vaginal swabs were taken, sealed and handed over to police according to unchallenged statement of doctor, but same were never sent for chemical analysis---Possibility could not be ruled out, in circumstances that on the night accused visited wife of complainant who woke up and took life of deceased in flurry of rage and insult---Prosecution had also failed to prove factum of recovery of dagger at the instance of appellant through reliable evidence---Prosecution case being not free from doubt, judgment of Trial Court was set aside and accused was acquitted of all charges extending him benefit of doubt.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Arts.117 & 118---Appreciation of evidence---Burden of proof---Burden of proof lay on prosecution from first to last and would not shift to accused, irrespective of the position as to whether accused took a defence plea or not or that defence plea was found to be false or was not proved.

Mirza Muhammad Azam for Appellant.

Ch. Muhammad Amjad Khan for the Complainant.

M.A. Farazi for the State.

Date of hearing: 17th November, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 347 #

2006 P Cr. L J 347

[Lahore]

Before Muhammad Nawaz Bhatti, J

BASHIR AHMAD----Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION SADDAR, DISTRICT KHANEWAL and another----Respondents

Writ Petition No.6056/Q of 2005, decided on 27th October, 2005.

Penal Code (XLV of 1860)---

----S. 379---Criminal Procedure Code (V of 1898), Ss.265-K & 249-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Case against accused had been registered on 5-9-2005, but investigation had not been completed till 27-10-2005 and same was still at early stage of hearing---No interference was warranted unless Court was satisfied from cogent material that prosecution was launched for improper motive to harass accused or its continuance would be an abuse of process of law---Remedy was not to be used to divert ordinary course of criminal procedure---Remedy for quashing of proceedings was not available when alternate remedy was available in shape of Ss.265-K & 249-A, Cr.P.C.---Quashing of proceedings at early stage was neither permissible nor preferable and every criminal case should be allowed to proceed on its merits---High Court could not assume the role of investigator.

Asad Hussain Jafri for Petitioner.

Mubashar Latif Gill, A.A.-G.

Syed Muhammad Asad Abbas for Respondent No.2.

Liaquat Baig, A.S.-I.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 358 #

2006 P Cr. L J 358

[Lahore]

Before Muhammad Jehangir Arshad, J

REHMAT ULLAH----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.164 of 2000, decided on 24th May, 2005.

Penal Code (XLV of 1860)---

----Ss. 302(b), 452 & 109---Qanun-e-Shahadat (10 of 1984), Art.39---Appreciation of evidence---Co-accused was acquitted on the ground that prosecution had not been able to prove motive against him, but accused had been convicted by relying upon motive allegedly attributed to co-accused---Incident was a blind murder having been committed in the dark hours of night and F.I.R. was lodged by complainant without naming any person as accused---Statements of two Investigating Officers materially contradicted each other on point of alleged recovery at the pointation of accused--Alleged confession made by accused before Police, could neither be relied upon nor considered being inadmissible under Art.39 of Qanun-e-Shahadat, 1984---Statement of complainant made in examination-in-chief with regard to alleged confession of accused, was also full of discrepancies, dishonest improvement and lacked corroboration from any independent source---Prosecution witnesses were contradicting each other on material points and were at variance with regard to time and place of alleged confession, which even otherwise lacked necessary particulars as required by law---Apart from other contradictions in the statement of witnesses, complainant, did not disclose the date, time, place, motive and details of occurrence, which had made prosecution case extremely doubtful---Medical evidence did not support prosecution in any manner---In view of said contradictions in the statements of prosecution witnesses, inadmissibility of alleged extra-judicial confession and lack of independent evidence, it was highly unsafe to base conviction of accused on murder charge, especially when prosecution had failed to prove its case against him beyond any shadow of doubt---Impugned judgment of conviction and sentence passed by Trial Court, were set aside and accused was acquitted of charge against him and was released.

Ishaq v. The Crown PLD 1954 FC 335; Abdul Rehman and another v. The State 2001 YLR 749 ref.

Malik Sadiq Mehmood Khurram for Appellant.

M.A. Farazi for the State.

Date of hearing; 24th May, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 371 #

2006 P Cr. L J 371

[Lahore]

Before M. Bilal Khan, J

YASEEN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.6499/B of 2005, decided on 1st November, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324/337-F(iii)/148/149---Bail, refusal of---Fire-arm injury on the right hand of the complainant's brother attributed to accused was supported by the Medico-legal report---Accused had remained an absconder for about eight months---Attack, prima facie, was a pre-meditated one in which fire-arms were openly used---Age of accused of sixty years in view of advanced medical science could not be termed as old age and by itself was no ground for bail---Section 324, P.P.C. had attracted the prohibitory clause of S.497(1), Cr.P.C.---Accused, according to F.I.R., had acted in a highhanded manner and he did not deserve the concession of bail at present stage---Bail was declined to accused in circumstances.

Ch. Nisar Ahmad Dhiloon for Petitioner.

Mian Abdul Qayyum Anjum with Allah Ditta, A.S.-I. for the State.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 382 #

2006 P Cr. L J 382

[Lahore]

Before Khawaja Muhammad Sharif and Mian Muhammad Najam-uz-Zaman, JJ

WAJID ALI and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.213 and Murder Reference No.359 of 2000, heard on 6th June, 2005.

Penal Code (XLV of 1860)---

----Ss. 302 & 34---Appreciation of evidence---F.LR. was lodged after nine hours of occurrence while distance between place of occurrence and police station was one and a half Kilometers---Incident was an unseen occurrence and no eye-witness was mentioned in the case and there was no extra-judicial confession---Nothing incriminating was recovered from accused to connect them with alleged commission of offence---Prosecution had stepped forward with concocted and self-fabricated story---Motive alleged behind occurrence was that father of deceased had some dispute about rented house with accused, but same was not tenable for the reason that according to prosecution's own case, accused had taken house on rent only 10/15 days prior to occurrence---No question regarding rent dispute could arise within such a span of time, when, ordinarily property was given on rent after getting advance rent at least for one month---Law required high standard of evidence which was very much lacking in the present case---In absence of strong evidence corroborated by other unimpeachable piece of evidence, accused could not be hanged in the manner as had been found in the present case---No mention that Chaddar' which allegedly belonged to accused was found in the F.I.R.---If there was aChaddar' along with deceased and especially upon which name of accused had written, then same must have been produced before police and there must have been mention of same in F.I.R.---Prosecution had failed to prove its case against accused beyond any shadow of doubt to sustain conviction of accused---Prosecution case was full of doubts and on basis of such a shaky evidence, conviction and sentence awarded to accused could not be maintained because same having not come through unimpeachable source, was unreliable and could not stand the test of judicial scrutiny---Impugned judgment of Trial Court was set aside and accused were acquitted.

Syeda H.B. Shah for Appellants.

Tanvir Iqbal Khan, A.A.-G. for the State.

Aftab Ahmad Gujjar for the Complainant.

Date of hearing: 6th June, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 390 #

2006 P Cr. L 7 390

[Lahore]

Before Khawaja Muhammad Sharif, J

Rana FAZAL ELAHI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.650 of 2004, decided on 28th November, 2005.

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

----Ss. 409, 420, 468, 471 & 218---Prevention of Corruption Act (II of 1947), S.5(2)---Appreciation of evidence---Prosecution witnesses who were all official witnesses had no personal grudge, ill-will or enmity against the accused to involve him falsely in the case---Prosecution evidence was based on the official record and the same did not suffer from any material contradiction or discrepancy---Findings of the Trial Court were very much convincing and in accord with the evidence on record---Material questions regarding entrustment and misappropriation of empty gunny bags had been put to the accused during his examination under S.342, Cr.P.C., although exact number of the same was not put to him, which had not caused any prejudice to him---Entrustment of the empty gunny bags to the accused and misappropriation of the same by him was established on record---Well-reasoned judgment having been delivered by the Trial Court, the same did not warrant any interference by High Court---Appeal of accused was dismissed accordingly.

Ashraf Mehmood v. the State 1986 PCr.LJ 1621; Fida Hussain v. State 2000 PCr.LJ 1022; Azhar Hussain v. The State PLD 2003 Lah. 219; S.A.K. Rehmani v. State 2005 SCMR 364; AIR 1960 Raj. 80; AIR 1956 SC 536; AIR 1956 SC 241; 21 DLR 377; PLD 1955 Dacca 68; AIR 1961 Cal. 240 and AIR 1956 SC 536 ref.

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

----S. 342---Examination of accused---No error consequential unless prejudice caused---Inadequate examination of accused under S.342, Cr.P.C. cannot be made a ground for setting aside the conviction unless prejudice causing miscarriage of justice to him is shown to have occurred, particularly in a case where he was represented by a counsel.

S.A.K. Rehmani v. State 2005 SCMR 364; AIR 1960 Raj. 80; AIR 1956 SC 536; AIR 1956 SC 241; 21 DLR 377; PLD 1955 Dacca 68; AIR 1961 Cal. 240 and AIR 1956 SC 536 ref.

Asghar Ali, Abid Saqi and Ch. Nazir Ahmad Kamboh for Appellant.

S.D. Qureshi for the State.

Dates of hearing: 11th, 14th 16th and 17th November, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 405 #

2006 P Cr. L J 405

[Lahore]

Before Khawaja Muhammad Sharif, J

KHALID MEHMOOD----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.5837/B of 2005, decided on 5th August, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.420, 468 & 471--Bail before arrest, refusal of---Complainant present in the Court, who was an old man of.90 years of age, had denied any agreement of sale between him and one alleged vendee who claimed to have entered into agreement of further sale with accused persons---Complainant had submitted that he even did not meet alleged vendee and had never thumb-marked alleged sale-agreement--Actual beneficiaries in the case were accused persons---Alleged vendee was still at large and even witness to alleged agreement between complainant and alleged vendee was also at large, while one of the accused had been arrested by police---During course of investigation, an agreement between alleged vendee and complainant had been found to be fabricated one, a big fraud had prima facie been committed with complainant about land amounting to crore of rupees---Offence alleged against accused persons being heinous in nature, interim bail already granted to accused, was recalled by High Court, dismissing bail petition.

Zafar Iqbal Chowhan for Petitioner.

Abdul Sami Khan for the Complainant.

Ch. Muhammad Hanif Khatana, Addl. A.-G. and Shaukat Dogar, S.-I.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 410 #

2006 P Cr. L J 410

[Lahore]

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

MIR ZAMAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.1522 of 2003, decided on 30th March, 2005.

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

---S. 9(c)---Appreciation of evidence---Reduction in sentence---Complainant though should not himself be an Investigating Officer of the case, but until and unless a serious prejudice had been caused to accused by double role of Investigating Officer, his investigation could not be said to be illegal nor same could be brushed aside---Accused, had failed to point out any ill-will or motive on part of Investigating Officer to falsely involve him in the case---Even slightest suggestion was not put to Investigating Officer during cross-examination in that regard---Testimony of said Investigating Officer could not be said to be based on mala fide---No enmity or motive could be suggested to other prosecution witness who had made statement that Charas was recovered in his presence from possession of accused and he had attested recovery memo--Both prosecution witnesses were subjected to lengthy cross-examination, but no material discrepancy or contradiction could be pointed out by accused to discard their testimony---Statement of defence witness with regard to innocence of accused appeared to be an afterthought and possibility that a false story had been made up to create defence of accused, could not be ruled out---Prayer of accused that punishment awarded to him be reduced to that of already undergone, could not be said to be unreasonable---Maintaining conviction of accused sentence of imprisonment already undergone was considered to be sufficient to meet the ends of justice.

Zafar Iqbal Chohan for Appellant.

Mirza Abdul Rashid Jasal for the State.

Date of hearing: 30th March, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 418 #

2006 P Cr. L J 418

[Lahore]

Before Khawaja Muhammad Sharif, J

Mian TAUQEER ZAFAR----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.6045/B of 2005, decided on 14th September, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.365-A---Bail before arrest, refusal of---Accused was named in F.I.R. and he was the only main accused in the case---Accused had fully been implicated not only by the victim, but also her mother and other prosecution witnesses---Ingredients of bail before arrest were very much lacking in the case---Considerations for the grant of bail before arrest and bail after arrest, though were altogether different, but the present was not even case of bail after arrest---Contention of accused that he was a General Councillor in the area and belonged to a respectable family was no ground to grant him bail before arrest, because everybody was equal before the law---Even otherwise, offence against accused was serious one and ingredients of pre-arrest bail were missing---Accused who, prima facie, was connected with commission of offence which fell within the prohibitory clause of S.497(1), Cr.P.C., was not entitled to relief sought.

Sakhawat Ali v. Khalid Mahmood and 7 others PLD 1994 Lah. 377 and Muhammad Irshad and others v. Amanat Ali and another 2004 SCMR 1375 ref.

Akhtar Shah for Petitioner.

Chaudhry Muhammad Hanif Khatana, Addl. A.-G., Punjab with Muhammad Akram S.-I. in person.

Ch. Saddaqat Ali for the Complainant.

Victim Faiza and her mother Naziran Bibi in person.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 423 #

2006 P Cr. L J 423

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD SHAFIQUE----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.5873/B of 2005 decided on 17th August, 2005.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-A(ii), 337-L(ii), 337-H(ii), 148 & 149---Bail before arrest, refusal of---First Information Report showed that accused were attributed one injury each with Sotas on the person of complainant---Accused had been named in F.I.R. but no recovery had been effected---Investigating Officer had also reported involvement of accused---Case of accused could not be compared with co-accused who had been granted bail after arrest---Extraordinary concession of pre-arrest bail, could not be granted to accused, in circumstances.

Asif Bashir Mirza for Petitioner.

Ch. Muhammad Azeem with Ashraf, S.-I. for the State.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 430 #

2006 P Cr. L J 430

[Lahore]

Before Khawaja Muhammad Sharif, J

SANAULLAH----Petitioner

Versus

THE STATE----Respondent

Criminal Revision No.686 of 2005, decided on 14th September, 2005.

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

----S. 7---Determination of age of accused---Dispute regarding age of accused was referred by the Trial Court to Medical Board for determination---Medical Board consisting of six senior Doctors of District Hospital vide report, had unanimously given opinion that age of accused on the date of report was "Seventeen to eighteen years", which would mean that on the day of occurrence, accused was "sixteen to seventeen years" and was a 'juvenile' in view of Juvenile Justice Systems Ordinance, 2000---If, as per report of Medical Board, accused was minor on the day of occurrence, then observation of Trial Court to the contrary was not only against mandatory provisions of Juvenile Justice Systems Ordinance, 2000, but also against settled principles of law---Impugned order passed by the Trial Court was set aside and accused was declared to be Juvenile under Juvenile Justice Systems Ordinance, 2000 and his case would be tried as such.

Sultan Ahmad v. Additional Sessions Judge-I, Mianwali and 2 others PLD 2004 SC 758 ref.

Zafar Iqbal Chohan for Petitioner.

Chaudhry Muhammad Hanif Khatana, Addl. A.-G. Punjab for the State.

Khalid Ikram Khatana for the Complainant.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 433 #

2006 P Cr. L J 433

[Lahore]

Before Asif Saeed Khan Khosa and Ch. Iftikhar Hussain, JJ

TANVEER AHMAD alias TEERI and another----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.136 and Murder Reference No.69 of 2000, heard on 16th February, 2004.

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

----Ss. 302(b), 337-F & 34---Appreciation of evidence---Acquittal of accused---Accused was empty-handed during alleged occurrence and he had not caused any injury to deceased or to injured complainant---Prosecution had admitted that accused was not involved in the incident forming motive and he was not directly connected with the same---Nothing was available on record to suggest that he knew before hand that his co-accused was carrying a Chhuri with him---Prosecution's own case revealed that co-accused, at relevant time had taken out a Chhuri from folds of his trousers and before that said Chhuri was not visible to anybody---Other co-accused had been acquitted by Trial Court on the basis of same evidence and said acquitted co-accused, had also not caused any injury to any person during the alleged incident--Exaggeration by prosecution to the extent of accused was also not beyond contemplation---Accused was also acquitted of the charge against him extending him benefit of doubt.

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

----Ss. 302(b), 337-F & 34---Appreciation of evidence---Sentence, reduction in---Conviction of accused---Reduction in sentence---Prosecution's case against the accused had been supported by as many as three eye-witnesses and one of them was an injured witness who had no background of ill-will or bitterness against said co-accused so as to prompt him to falsely implicate him in a case of that nature---Said eye-witnesses had made consistent statements to the extent of said accused and their statements had not only impressed Trial Court, but same had also inspired confidence of the High Court---Recovery of blood-stained Chhuri from said accused during investigation of case had provided corroboration to ocular account and medical evidence had provided support to the same---Counsel for accused persons, in circumstances was amply justified in not challenging his conviction---Motive set up by prosecution in the case, was not only trivial in nature, but same had also remained far from being conclusively established---No details had been mentioned by complainant in the F.I.R. regarding dispute between said accused and deceased and even before Trial Court the dispute had remained unexplained---Assault was opened by said accused only after Lalkara allegedly raised by elder brother of the accused---Evidence of accused had fully proved that at time of occurrence he was less than eighteen years of age---Sentence of death awarded to the accused, was reduced to imprisonment for life, accordingly---Murder reference was answered in negative.

M.A. Zafar for Appellants.

A.H. Masood for the State.

Date of hearing: 16th February, 2004.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 444 #

2006 P Cr. L J 444

[Lahore]

Before Khawaja Muhammad Sharif J

KHALIL AHMAD----Petitioner

Versus

DISTRICT POLICE OFFICER and others----Respondents

Writ Petition No.17915 of 2005, decided on 15th November, 2005.

Criminal Procedure Code (V of 1898)---

----S. 491---Constitution of Pakistan (1973), Art.199---West Pakistan Arms Ordinance (XX of 1965), S.13---Habeas corpus petition---Facts and circumstances of the case and report submitted by S.H.O. concerned, had clearly shown that when bailiff recovered the alleged detainee from Police Post, neither his arrest was shown in the daily diary nor any complaint was shown to Bailiff to the effect that rifle .222 bore had been recovered from the alleged detainee and even no rifle was shown to the Bailiff---Contention of petitioner that case against petitioner was a counterblast, seemed to be genuine one---When on the face of it, it was found that case against petitioner was a counterblast, petitioner, should not have faced agony of trial as it amounted to abuse of process of law---Case registered against accused under S.13 of West Pakistan Arms Ordinance, 1965, was quashed.

Muhammad Sher Cheena for Petitioner.

Ch. Muhammad Hanif Khatana, Addl. A.-G.

Muhammad Iqbal Zafar, D.S.P., Sultan Ahmad, Inspector, Bashir Ahmad, Hafeez-ur-Rehman S.-I. and Mujeeb Ahmad A.S.-I.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 446 #

2006 P Cr. L J 446

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD ASHRAF and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.4409/B of 2004, decided on 5th July, 2004.

Criminal Procedure Code (V of 1898)---

---S. 497(2)-Penal Code (XLV of 1860), Ss.302, 337-A(i), 337-A(ii), 337-F(i), 337-L(2), 148 & 149---Bail, grant of---Further inquiry F.LR. had been lodged with noticeable delay and both accused persons had not caused any injury to deceased---According to F.I.R. one accused had given three Danda blows to prosecution witness and the other accused had given Danda blows to complainant, but seats of injuries allegedly caused by both the accused, had not been mentioned in F.I.R.---Said accused persons were not directly connected with motive set up in the F.I.R.---Report submitted under S.173, Cr.P.C. showed that one accused had been found to be innocent and nothing had been recovered from his possession; he was a crippled person and was physically incapable of launching assault upon anybody---Investigating agency had found that the occurrence had been initiated by complainant party itself and other accused person was not present at the scene of occurrence at initial stages, but he was attracted to spot when one accused was teased by complainant party and thereafter both parties had fought with each other---Other accused person was also found to have suffered three injuries on his person including some on his vital parts of body, but his injuries had been completely suppressed in F.I.R.---Private complaint had already been filed by accused party against complainant party advancing its own version of alleged incident---Challan in the case had already been submitted after completion of investigation---Continued custody of accused in jail was not likely to serve any beneficial purpose---Two of co-accused of accused had already been admitted to post-arrest bail by the High Court---Case against accused persons calling for further inquiry into their guilt within purview of subsection (2) of S.497, Cr.P.C., were admitted to bail, in circumstances.

Hasnat Ahmed Khan for Petitioner.

Zafar Iqbal Bhatti with Ghulam Mustafa Constable with record.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 457 #

2006 P Cr. L J 457

[Lahore]

Before Khawaja Muhammad Sharif, J

ABDUL HAMEED alias MEDU----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.52/J of 2004, heard on 8th November, 2005.

Penal Code (XLV of 1860)---

----S. 308---Appreciation of evidence---F.I.R. was promptly lodged by real brother of accused and real son of deceased who had no strong motive or reason to falsely involve his real brother for murder of his father---Accused was the single accused who gave a fatal blow of Sota on the head of deceased in consequence whereof deceased died there and then---Accused during trial had failed to prove his defence plea that at the time of occurrence he was suffering from mental fits---Report of the Medical Board was of no avail to accused as it talked about some weakness in his right side due to "old polio deformity" and did not talk about any mental disease---Accused was named in F.I.R. with a specific role of giving a fatal Sota blow on the head of deceased---Factum of commission of murder by accused was an admitted one and there was no question of substitution or false implication on the part of prosecution witnesses and ocular account was corroborated by medical evidence---Accused was not suffering from any mental disease at the time of occurrence as claimed by him---Trial Court had already taken a lenient view qua quantum of sentence and had convicted and sentenced him under S.308, P.P.C: and not under S.302(b), P.P.C.---Prosecution having proved its case against accused beyond a shadow of doubt, Trial Court had rightly delivered a well reasoned judgment to convict and sentence accused which could not be interfered with by High Court in appellate jurisdiction.

Iftikhar Ahmad v. The State 2005 SCMR 272 ref.

Qazi Zafar Iqbal for Appellant.

Malik Muhammad Arif Bara for the State.

Date of hearing: 8th November, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 462 #

2006 P Cr. L J 462

[Lahore]

Before Sardar Muhammad Aslam, J

KHURSHID ALI and 9 others----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.6612/B of 2005, decided on 27th September, 2005.

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

----S. 498---Penal Code (XLV of 1860), Ss.379, 386, 337-H(2), 148 & 149---Pre-arrest bail, refusal of---Prosecution story narrated in F.I.R., showed that deadly weapons were used' in commission of offence, though nobody had received any injury in the incident---Specific role had been assigned to three accused persons who had failed to point out any material or mala fides with complainant and police to falsely involve them in the case---Recovery of crime weapons and property, was yet to be made---Said accused, in circumstances were not entitled to concession of bail---Bail petition to the extent of said accused, was dismissed.

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

----S. 498---Penal Code (XLV of 1860), Ss.379, 386, 337-H(2), 148 & 149---Bail, grant of---General allegation was against few accused persons and they had not committed offence alleged against them in tentative assessment---Bail to said accused, was allowed.

Asghar Ali Gill for Petitioners.

Petitioners in person on bail.

Muhammad Taqi Khan for the Complainant.

Saif Ullah Khalid for the State with Muhammad Nawaz, A.S.-I. with record.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 470 #

2006 P Cr. L J 470

[Lahore]

Before Khawaja Muhammad Sharif and Ijaz Ahmad Chaudhry, JJ

ARSHAD ALI WARRAICH----Petitioner

Versus

PUNJAB COOPERATIVE BOARD and others----Respondents

Writ Petition No.15492 of 2005, decided on 11th October, 2005.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 2(b), 9(a)(iii), (iv) & (vi), 18(g) & 31-D---Constitution of Pakistan (1973), Art.199---Constitutional petition---Reference to Accountability Court---Allegation against petitioner in the Reference was that he had opened account in the SCCL with deposit of Rs.1,000 only, but availed the finance facility to the tune of Rs.1,42,82,341 without depositing any document required to be executed for the purpose---Said amount was never re-paid by the petitioner and that petitioner, prima facie, was, guilty of misappropriation of said amount under S.9 of National Accountability Ordinance, 1999---Contention of petitioner that in case of wilful default, Reference could only be filed after obtaining permission from State Bank of Pakistan, was repelled because defunct Corporation was not being governed by State Bank and it had allegedly afforded finance facility to petitioner without any permission of State Bank of Pakistan---Case was not that where the State Bank of Pakistan had any concern and Reference was not required to be submitted under S.31-D of National Accountability Ordinance, 1999---Even otherwise question of maintainability of Reference filed against petitioner was finally resolved by High Court in writ petition which was filed by petitioner against dismissal of his application by Accountability Court filed under S.265-K, Cr.P.C. seeking acquittal---Petitioner had claimed that plea bargain having been tendered by him under forced circumstances, he was entitled for refund of amount---Validity---Petitioner had himself submitted application for recourse to plea bargain and said application was processed as per procedure provided in National Accountability Ordinance, 1999 and after approval, petitioner had been released on payment of agreed amount and promise to deposit outstanding amount in instalments---Nothing was on record to substantiate plea of petitioner that plea bargain was tendered under coercion---Petitioner, after having been benefited from transaction of plea bargain on which he was released from jail, was estopped to challenge said proceedings by his conduct as well.

PLD 2001 SC 607; Rauf Bakhsh Kadri v. The State and others 2003 MLD 777 and Messrs Afzal Construction Co. (Pvt.) Ltd. v. Chairman, Central Board of Revenue and others NTR 1990 HC 61 ref.

Jawahar A. Naqvi for Petitioner.

Waqar Hassan Mir, Deputy Prosecutor-General, NAB.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 481 #

2006 P Cr. L J 481

[Lahore]

Before Khawaja Muhammad Sharif, J

RASHID AHMAD and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No. 741 of 2003, decided on 26th September, 2005.

(a) Penal Code (XLV of 1860)-

---S. 302(b)-Appreciation of evidence---Acquittal---Two of four accused persons, had been acquitted by Trial Court and their acquittal had attained finality as no appeal against their acquittal had been filed by complainant---Allegation against said acquitted accused was that one of them caused injuries with iron pipe on the head of deceased, while other one gave kick. blow on the testicles of deceased---Said injuries were not found in post-mortem report---Out of other two accused persons, who were convicted, they were father and son---Record had established that no previous enmity existed between parties and occurrence had taken place at the spur of the moment---Both said convicted accused were injured during occurrence and were medically examined by Doctor who had conducted post-mortem of the deceased---Three injuries were found on person of one of said accused and four on the other---Weapons used in occurrence was Suwa' andiron pipe' and not Khanjar or Chhuri and no fire-arm was with the said accused persons and one of said two accused was attributed Lalkara---Prosecution had suppressed injuries received by the said accused persons---One of said two convicted accused persons, was not attributed any injury on person of deceased---Said accused person was also acquitted from charge, granting him benefit of doubt.

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

----S. 302(b)---Appreciation of evidence---Conviction of accused---Conversion of conviction and sentence---One of the accused in the case had taken plea of right of self-defence and had also received three injuries during the occurrence---Accused was convicted and sentenced under S.302(b); P.P.C.---Accused had exceeded right of self-defence as he had caused three injuries on person of the deceased---Conviction of said accused was converted from S.302(b), P.P.C. to S.302(c), P.P.C. and sentenced to undergo 14 years' R.I. with benefit of S.382-B, Cr.P.C. accordingly.

Raja Mehmood Akhtar for Appellant.

A.H. Masood for the State.

Gohar Razzaq Awan for the Complainant.

Date of hearing: 26th September, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 486 #

2006 P Cr. L J 486

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD ASGHAR----Petitioner

Versus

THE STATE and 2 others----Respondents

Criminal Revision No.1132 of 2002, heard on 6th December, 2005.

Penal Code (XLV of 1860)---

----Ss. 302 & 324/34---Criminal Procedure Code (V of 1898), Ss.204 & 439---F.I.R. and the private complaint filed by the complainant were against the same set of the accused while in the report submitted by the police under S.173, Cr.P.C. a different set of the accused i.e., the said complainant and his son, who claimed themselves to be eye-witnesses of the occurrence, had been sent to face the trial---Widow of the deceased had also filed a private complaint against the last set of the accused---Dictum laid down in Nur Elahi's case PLD 1966 SC 708 for the trial of complaint case and the State case was not fully applicable to the facts and circumstances of the present case, as in the said case the version of the complainant in the F.I.R. and the private complaint was the same and in the report under S.173, Cr.P.C. submitted by the police only one accused out of the three nominated in the F.I.R. was sent to face the trial,--Whereas in the present case the police after investigation had reached altogether a different conclusion that the complainant and the alleged eye-witnesses of the F.I.R. were in fact the murderers---Facts and circumstances of the present case, therefore, warranted that before making any final decision on the private complaint of the complainant, the second version wherein the complainant along with another had been made accused should also be brought on record of the Trial Court either through the commencement of trial in the police case or after preliminary inquiry in the private complaint filed by the widow of the deceased and if the Trial Court would reach the conclusion to summon the accused nominated therein, then trial thereof would also commence and on conclusion thereof the judgments in both the matters would be delivered by the Trial Court simultaneously---Fate of the challan case would take effect in accordance with decision thereof---However, if the private complaint filed by the widow of the deceased was dismissed at the preliminary stage then the trial would commence and be concluded on the report submitted by the police under S.173, Cr.P.C. and judgments would be delivered together---Trial Court, till then, would not announce final judgment in the private complaint filed by the complainant, because it would cause serious prejudice to the accused nominated therein if the second version wherein the complainant along with his son had been made accused in the same occurrence, was not put before the Court---Trial Court in the presence of both the versions before it would be in a better position to unearth the true facts---Second party in cases of such nature could not be knocked out without affording opportunity simultaneously to adduce their evidence to prove their version, because if in the private complaint they were convicted, the trial of second version would never commence, which could be started in case of their acquittal only and it might take a long time and the possibility of disappearing the evidence in the meanwhile could not be ruled out-Impugned orders were set aside accordingly with the direction to Trial Court to also commence the trial in the cross-version and then deliver the judgments in both the matter simultaneously---Till then the final judgment in the private complaint filed by the complainant would not be announced---Criminal Revision was accepted accordingly.

Nur Elahi's case PLD 1966 SC 708; 1975 PCr.LJ 400; Mst. Rasoolan Bibi v. The State and another 2000 SCMR 641; Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522 and Muhammad Sadiq v. The State another PLD 1971 SC 713 ref.

Ch. Muhammad Rafiq Warraich for Petitioner.

Syed Zahid Hussain Bokhari and Sadaqat Mehrnood Butt for Respondent No.2.

Muhammad Hanif Saleemi for the State.

Date of hearing: 6th December, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 497 #

2006 P Cr. L J 497

[Lahore]

Before Khawaja Muhammad Sharif and Mian Muhammad Najam-uz-Zaman, JJ

NASIR ABBAS----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.94-J of 2000 and Murder Reference No.304 of 2000, decided on 13th September, 2005.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---Grave and sudden provocation---Counsel for accused did not challenge conviction of accused, but had prayed for reduction of sentence on ground that accused had committed murder under grave and sudden provocation and that he had caused only a single injury---Accused had committed murder of deceased as he suspected illicit relations of his wife with the deceased---Accused in his statement made under S.342, Cr. P. C. had stated that on day of occurrence, he took rifle and seeing deceased taking away his wife on motorcycle, he lost his self-control and under grave and sudden provocation made a single fire shot at the deceased---Record having established that it was a case of family honour, award of capital sentence to accused, was not justified---Dismissing appeal of accused against his conviction, death sentence awarded to accused by Trial Court was converted to imprisonment for life, accordingly.

Muhammad Zaman Khan for Appellant.

Masud Sadiq Mirza for the State (in Murder Reference No.304 of 2000).

Mirza Abdullah Baig for Appellant (in Criminal Appeal No.94/J of 2000).

Date of hearing: 13th September, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 507 #

2006 P Cr. L J 507

[Lahore]

Before M. Bilal Khan, J

ABDUR REHMAN and 3 others----Petitioners

Versus

THE STATE----Respondent

Criminal Revision No.987 and Criminal Miscellaneous No.2112/M of 2003, decided on 14th December, 2005.

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

----Ss. 302/324/316/148/149---Criminal Procedure Code (V of 1898), Ss.190, 173 & 439---Summoning of accused by Trial Court to face trial---Validity---Despite the accused having been placed in column No.2 of the report made under section 173, Cr.P.C. they had been summoned by the Sessions Court to face the trial---Sessions Court had also made a reference in extenso to the report of the judicial enquiry conducted by the Magistrate holding certain jail officials including the accused liable for the incident---Trial Court under the law was competent to summon the accused placed in column No.2 of the challan to face the trial and even to take cognizance of an offence in case of negative report submitted by the police showing the accusation to be baseless---While taking cognizance under S.190(1)(b), Cr.P.C. on a police report Court would take cognizance of the offence and not merely of a particular person charged in the report as an offender and as such it could issue process against other persons who also appeared to be concerned in the commission of the offence on the basis of the police report and other material placed before it---Mere fact that some of the accused persons mentioned in the said judicial inquiry report were not summoned by the Trial Court, would not entitle the accused to claim that they too ought not to have been summoned---Trial Court had given valid reasons for not summoning the said accused persons---By summoning the present accused, Trial Court had not committed any illegality---Revision petition was dismissed accordingly.

Haji Mehboob Khan and another v. The State 2002 PCr.LJ 340; Zulfiqar Ali Virk and others v. D.I.-G. and others 2000 MLD 1273; Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and others AIR 1980 SC 52 and Muhammad Akbar Dar and others v. State of Jammu and Kashmir and others AIR 1981 SC 1548 ref.

Waqarul Haq alias Nithoo and another v. The State 1988 SCMR 1428 rel.

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

----S. 190---Cognizance of offence by Magistrate---Scope---Trial Court can take cognizance of an offence even in case of negative report submitted by the police that the accusation is baseless and no case is made out against the delinquents---Trial Court can summon the accused placed in column No.2 of the challan to face trial and recording of some evidence at first instance is not required to ascertain as to whether a prima facie case is made out or not---Magistrate while taking cognizance under S.190(1)(b), Cr.P.C. on a police report takes cognizance of the offence and not merely of a particular person charged in the report as an offender, and as such he can issue process against other persons, who also appear to him to be concerned in the commission of the offence on the basis of the police report and other material placed before him.

Waqarul Haq alias Mithoo and another v. The State 1988 SCMR 1428 ref.

Asghar Ali for Petitioners.

Ch. Aamir Rehman, Addl. A.-G. assisted by Tanvir Ahmad Shami for the State.

Maazullah Khan Sherwani for the Applicant (in Criminal Miscellaneous No.2112/M of 2003).

Agha Nayyar Latif for the Complainant.

Date of hearing: 28th November, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 515 #

2006 P Cr. L J 515

[Lahore]

Before Khawaja Muhammad Sharif and Mian Muhammad Najam-uz-Zaman, JJ

SANAULLAH----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.1189 of 2004, decided on 22nd September, 2005.

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

----S. 9(b)---Appreciation of evidence---Sentence, reduction in---F.I.R. and evidence of prosecution witnesses had revealed that accused had made a plan to falsely involve another person in case of narcotic and for this purpose concealed 600 grams of Charas and four Kepis of local made liquor in house of said other person and later on got the same recovered in presence of prosecution witnesses---Witnesses of recovery while supporting prosecution case, had narrated circumstances under which narcotics substance was recovered at the instance of accused---Both witnesses were subjected to lengthy and searching cross-examination, but nothing was on record to doubt the credibility of said witnesses---Statements of said witnesses were persuasive in nature and same could be relied upon to uphold conviction of accused---Quantity of Charas recovered from accused was only 600 grams and he was facing agony of case since 2002 and according to record he had already undergone about one and a half year of sentence---Lenient view about the quantum of sentence, would meet the ends of justice---Sentence of imprisonment of accused was reduced to period already undergone by him and amount of fine was also substantially reduced.

Kh. Fahim Ijaz for Appellant.

Date of hearing: 22nd September, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 522 #

2006 P Cr. L J 522

[Lahore]

Before Abdul Shakoor Paracha, J

Mst. SHEZAN SANAULLAH----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1399/B of 2005, decided on 23rd December, 2005.

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

----S. 497(2)---Penal Code (XLV of 1860), S.489-F---Bail, grant of---Civil Court was to determine as to whether the agreement in question was enforceable under the law or not--Cheque which was dishonoured by the Bank on presentation had been issued by the first party as .guarantee in favour of the second party---Second party was to recover the amount through the Court of law at the risk and cost of the first party---Case against accused, therefore, to all intents and purposes was of further inquiry within the meaning of S.497(2), Cr.P.C.---Offence under S.489-F, P.P.C. did not fall within the prohibitory clause of S.497(1), Cr.P.C. and bail in such cases was a rule and refusal an exception---Accused being a lady was also entitled to grant of bail under first proviso to S.497, Cr.P.C.---Considerations for grant of bail before arrest and for grant of bail after arrest being altogether different, dismissal of the application of the accused for pre-arrest bail by the High Court earlier had no bearing on the merits of the present application for post-arrest bail---Accused was in jail for the last about two months---Bail was allowed to accused in circumstances.

Province of West Pakistan v. Messrs Mistri Patel & Co. and another PLD 1969 SC 80; Major Anwar-ul-Haq v. The State PLD 2005 Lah. 607; Rana Ehsan v. The State 2004 YLR 2675; Mian Saghir Ahmad and another v. The State 2005 Cr.LJ 849 and Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

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

----S. 497---Bail---Principles---Bail in a case not falling within the prohibitory clause of S.497, Cr.P.C. is a rule and refusal an exception.

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

---Ss. 497 & 498---Post-arrest bail' andpre-arrest bail', grant of---Considerations for grant of bail after arrest and bail before arrest are altogether different.

Muhammad Akram Sheikh and Aizid Nafees for Petitioner.

Khalid Mudassar Abbasi, A.A.-G. for the State along with Taj Muhammad, S.-I.

Sardar Tariq Masood Khan for the Complainant.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 539 #

2006 P Cr. L J 539

[Lahore]

Before Muhammad Akhtar Shabbir, J

Malik MUHAMMAD ZAMEER----Petitioner

Versus

SHAMIM AKHTAR and 3 others----Respondents

Writ Petition No.1734 of 2005, decided on 21st February, 2005.

Penal Code (XLV of 1860)---

----Ss. 441 & 447---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Copies of record of rights and other documents had established that complainant was not the exclusive owner in possession of Khasra numbers in dispute---All persons including petitioner, whose names were appearing in column of ownership of record of rights, would be deemed to be in possession over said property---Co-sharer, in a joint Khata was sharer in every piece and parcel of land---Prosecution, in order to establish offence of `criminal trespass', must prove that real or dominant intent of entry in property was to commit an offence or to insult, intimidate or annoy the occupant and that any claim of right was a mere cloak to cover the real intent or at any rate constituted not more than a subsidiary intent---Entry upon land made under a bona fide claim, how ill-founded in law the claim might be, would not become criminal merely because a foreseen consequence of entry was annoyance to occupant---Petitioner/accused under a bona fide claim being co-sharer/co-owner of property, having entered into land in dispute, had not committed any trespass---F.I.R. was quashed in circumstances.

Takri Moosa Khan v. State 1998 MLD 1838; Bhagwan Din v. Emperor AIR 1918 All. 365; Kakayan v. Lee Like AIR 1937 Rang. 133; and Ghulam Ahmad v. Emperor AIR 1938 Lah. 848 ref.

Saeed Yousaf Khan with Tanvir Iqbal, A.A.-G. for Petitioner.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 550 #

2006 P Cr. L J 550

[Lahore]

Before Ali Nawaz Chowhan and Umar Ata Bandial, JJ

WASEEM ABBAS----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.1104 and Murder Reference No.25/T of 2003, decided on 22nd December, 2005.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Occurrence had taken place in the Court premises where the deceased while handcuffed, was to be produced in an arms case by the police before a Magistrate---Deceased, prior to the incident, had already been convicted and sentenced in the motive murder case---Murder of the deceased had been committed at day time with premeditation---Accused had come near the under-trial prisoners shrouded in a "Burqa" fully armed with two pistols and suddenly removing his "Burqa" fired a shot at the deceased and tried to escape but was apprehended at the spot by the police---Prosecution case having been proved to the hilt by the aforesaid incriminating circumstances against the accused, his conviction was upheld---Defence counsel, however, pleaded for mitigation on the ground that the deceased being a hardened criminal was not a "Masoom-ud-Dam" and the accused did not deserve capital punishment of death---Deceased having been already convicted and sentenced in the motive murder case, accused had no locus standi in respect of retribution and the law did not permit him to kill the deceased instead of taking recourse to the law---Sentence of death awarded to accused by Trial Court was also maintained in circumstances.

Federation of Pakistan v. Gul Hassan PLD 1989 SC 633 and State v. Muhammad Hanif 1992 SCMR 2047 distinguished.

M. Asghar Rokhari assisted by Syed Ijaz Qutab for Appellant.

Ghulam Hussain Ch. for the State.

Javid Iqbal Sh. for the Complainant.

Date of hearing: 12th December, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 557 #

2006 P Cr. LJ557

[Lahore]

Before Khawaja Muhammad Sharif and Mian Muhammad Najam-uz-Zaman, JJ

NASIR JAMAL and 2 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.330 of 2003, decided on 20th September, 2005.

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

---Ss. 302, 324, 337-F(iii), 337-F(v), 393 & 34---Qanun-e-Shahadat (10 of 1984), Art.22---Appreciation of evidence---Evidence of identification parade---Evidence of identification parade was not the sole criteria to prove case against unknown assailants---Prosecution could prove charge against them if identity of accused was sufficiently proved by other convincing evidence, i.e. direct or circumstantial evidence---Two prosecution witnesses had identified accused, but third prosecution witness failed to do so during identification parade proceedings---Legal formalities were not complied with in letter and spirit by Presiding Officer during identification proceedings and Trial Court on basis of cogent reasons had rightly rejected that piece of evidence.

Muhammad Afzal and another v. The State 1982 SCMR 129 ref.

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

---Ss. 302, 324, 337-F(iii), 337-F(v), 393 & 34---Appreciation of evidence---Conviction--Seventeen crime empties were recovered from the spot during investigation and same had matched with crime weapon i.e. Kalashnikov recovered at the instance of accused as was apparent from report of Forensic Science Laboratory---One of prosecution witnesses had also received injuries at the hands of assailants, during the occurrence---Presence of said prosecution witness stood established from evidence available on record---Facts narrated by said prosecution witness had revealed that at the time of occurrence all assailants, except accused, had muffled their faces---Said witness who had no enmity or grouse against accused had also identified him before Trial Court---Other two prosecution witnesses had also seen accused after occurrence along with other co-accused hurriedly passing by them---Both of them also identified accused and had stated so before Trial Court---Sufficient evidence i.e., direct and circumstantial, was available to connect the accused with commission of offence---Appeal to the extent of accused stood dismissed.

---Ss. 302, 324, 337-F(iii), 337-F(v), 393 & 34---Appreciation of evidence---Benefit of doubt---None of the two co-accused was known to prosecution witnesses prior to occurrence---Both prosecution witnesses, during identification parade, though had identified co-accused, but that piece of evidence had already been disbelieved by Trial Court---Identification of said two co-accused by said witnesses during identification proceedings, was not free from doubt---One of said co-accused, though was allegedly armed with Kalashnikov, but that weapon was never recovered from him---Kalashnikov recovered from other co-accused was never sent to Forensic Science Laboratory and no evidence was available to show that weapon was ever used during occurrence---Said piece of evidence had got no corroborative value---Statements of witnesses of alleged extra-judicial confession of accused, had revealed that all accused persons had jointly confessed their guilt---Statement of said witnesses were also silent with regard to mode, manner and circumstances under which accused had allegedly committed offence---Would be unsafe to rely upon such type of evidence, in circumstances---Statements of said witnesses with regard to evidence of Wajtakkar qua said co-accused was also not sufficient to be relied upon in absence of any independent corroborative piece of evidence---Both co-accused, in circumstances were entitled to get benefit of doubt---Appeal to the extent of said two co-accused was allowed and both of them stood acquitted from the charges and were ordered to be released.

M. Asghar Khan Rokhari for Appellants.

Asif Hussain Sh. for the State.

Date of bearing: 20th September, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 564 #

2006 P Cr. L J 564

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Maj. (Retd.) IJAZ-UL-HAQ----Petitioner

Versus

TARIQ NAZIR BUTT and another----Respondents

Criminal Miscellaneous No.7856/CB of 2005; decided on 22nd December, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Copyright Ordinance (XXXIV of 1962), Ss.66 & 57---Cancellation of pre-arrest bail, refusal of---For making out an offence under S.66 of the Copyright Ordinance, 1962, prosecution must be possessed' with the evidence that the accused had acted with the knowledge that the product was protected by copyrights and he was not authorized to sell the same---Mere production of a copy of the novel before the police after purchasing the same from the shop of the accused was not sufficient to prima facie make out a case against him---Guilt of accused would be determined by the Trial Court after recording evidence of the parties---Section 67 of the Copyright Ordinance, 1962 was also not attracted as no material was recovered by the police to show that the said book was being printed by the accused---Challan, after completion of investigation, had been submitted in the Court, which had taken the cognizance and sending the accused to jail would not be beneficial to the prosecution for any further development in the investigation---Offence at the most was punishable with three years' R.I. and grant of bail in such-like cases was a rule and refusal was an exception---Accused was not previously involved in any such case---Complainant might have no mala fide against the accused for his false implication, but clash between them on business point of view might exist---Accused was not alleged to have misused the concession of pre-arrest bail in any manner---Petition was ,dismissed in circumstances.

1999 MLD 844 and 2005 PCr.LJ 1773 ref.

Kh. Khalid Butt for Petitioner.

Kh. Mehmood Ahmad for Respondent No. 1.

Muhammad Arshad Qureshi for the State.

Sabir Ali, S.-I. with record.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 567 #

2006 P Cr. L J 567

[Lahore]

Before Khawaja Muhammad Sharif and Mian Muhammad Najam-uz-Zaman, JJ

SHAHID MEHMOOD----Appellant

Versus

THE STATE----Respondent

Criminal Appeals Nos.464, 501 of 2000 and Murder Reference No.81 of 2001, decided on 19th September, 2005.

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

----Ss. 302(b) & 337-A(I)---Appreciation of evidence---F.I.R. was promptly lodged---Eye-witnesses though were closely related to deceased, but their presence at the spot, by no stretch of imagination, could be disbelieved as one was husband of the deceased, and other was her son---Eye-witnesses' presence in the house, where occurrence had taken place, was natural---Third eye-witness was also real brother of complainant and was residing in adjacent house of deceased--Accused caused injuries. with brickbat on person of said third eye-witness when deceased was being brought down from the roof top on the road for taking her to the hospital---Said eye-witness was also got medically examined by Investigating Officer and blunt weapon injuries were found on his person---Ocular account was fully corroborated by Medical evidence and a fire-arm injury existed on the neck of deceased lady---Ocular account furnished by independent witnesses and supported by Medical evidence, was further corroborated by positive report of Fire-arms Expert---Record had proved that accused had committed murder of the deceased---Motive of incident had also been established---In absence of any extenuating circumstances for conversion of death sentence to imprisonment for life, conviction and sentence recorded against accused by Trial Court vide impugned judgment, was maintained in toto and death sentence awarded to accused was confirmed and Murder Reference was answered in Affirmative.

2005 PCr.LJ 1086; 2000 SCMR 1818; 1999 SCMR 396; PLD 1994 SC 641; PLD 1996 SC 122; 2002 SCMR 1394 and Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427 ref.

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

----S. 417---Penal Code (XLV of 1860), Ss.302(b) & 337-A(I)---Appeal against acquittal---Complainant had filed appeal against acquittal of co-accused---No overt act qua deceased was attributed to co-accused, except Lalkara and firing in the air---Appeal filed by complainant against acquittal of co-accused, was dismissed in circumstances.

Malik Rab Nawaz Noon for Appellant.

Muhammad Sharif Cheema with Muhammad Arshad Bajwa for the State.

Nemo for the Complainant.

Date of hearing: 19th September, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 572 #

2006 P Cr. L J 572

[Lahore]

Before M. Bilal Khan and Sardar Muhammad Aslam, JJ

MUHAMMAD IMRAN alias MITHU----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.837 of 2000, heard on 15h December, 2005.

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

----Ss. 302(b)/34 & 324/34---Appreciation of evidence---Sentence, reduction in---Defence counsel had challenged the sentence of death awarded to the accused on the only ground that the eye-witnesses had not stated with certainty as to who, out of the accused or the acquitted co-accused, had fired the fatal shot at the deceased---Accused and his co-accused according to record, had fired one shot each which hit the deceased child and the injured lady witness---Co-accused had been acquitted on the basis of compromise---Deceased as well as the injured lady had received one fire-arm injury each---Could not be ascertained with judicial certainty as to who, out of the accused and the acquitted co-accused, had caused the fatal shot to the deceased, with whom the accused had no enmity---Conviction of accused under S.302(b), P.P.C. was consequently maintained, but his sentence of death awarded thereunder was reduced to imprisonment for life in circumstances---Lady injured witness had herself attributed her injury to acquitted co-accused, therefore, accused was acquitted of the charge under S.324, P.P.C.---Appeal was disposed of accordingly.

Allah Dad and another v. The State 1995 SCMR 142; Nooran (Mst.) v. Nura and another PLD 1975 SC 174; Nazir Ahmad and others v. The State 1999 PCr.LJ 508; The State v. Rashid Ahmad 1995 PCr.LJ 2001; Muhammad and others v. The State 1994 PCr.LJ 2102 and Qasim and 8 others v. The State 1994 PCr.LJ 1295 ref.

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

----S. 302(b)---Lesser sentence award of---Scope---Lesser sentence of imprisonment for life may be awarded to an accused where it cannot be proved with certainty as to who, out of the assailants, had caused injuries on the person of the deceased.

Allah Dad and another v. The State 1995 SCMR 142; Nooran (Mst.) v. Nura and another PLJ 1975 SC 162; Nazir Ahmad and others v. The State 1999 PCr.LJ 508; The State v. Rashid Ahmad 1995 PCr.LJ 2001; Muhammad and others v. The State 1994 PCr.LJ 2102 and Qasim and 8 others v. The State 1994 PCr.LJ 1295 ref.

Nazeer Ahmad Ghazi and Tanvir Ahmad Sheikh for Appellant.

M. Aslam Malik for the State.

Date of hearing: 15th December, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 578 #

2006 P Cr. L J 578

[Lahore]

Before Asif Saeed Khan Khosa, J

ARSHAD IQBAL----Appellant

Versus

THE STATE----Respondent

Criminal Appeals Nos.1844, 1921 of 2001 and Criminal Revision No.80 of 2002, decided on 20th February, 2004.

Penal Code (XLV of 1860)---

----Ss. 324, 336, 337-D & 337-F(iii)---Appreciation of evidence--- Occurrence had taken place during daylight and F.I.R. in respect of alleged incident had been lodged with reasonable promptitude and names and specific roles of accused had been clearly mentioned therein---. Prosecution witnesses had the stamp of injuries on their persons---As a matter of fact prosecution witnesses were the injured victims of the case and defence had utterly failed to bring anything on record to establish any background of ill-will or bitterness between the victims and ' accused---Both said injured eye-witnesses had made consistent statements before the Trial Court and their statements had received ample support from Medical evidence which had confirmed date and time of occurrence, the weapons used by assailants and locale" of injuries 'sustained by those witnesses---Motive had provided sufficient corroboration to ocular account furnished in the case---Alleged recovery of a pistol effected from accused during investigation of the case had remained legally inconsequential in absence of any matching of such pistol with any crime-empty, but that aspect of matter had not weakened prosecution's case against accused---Both accused had accepted their presence and participation in the occurrence, but they had advanced a different version of the same---Accused, however, could not produce independent evidence to establish or substantiate their said version---Defence version was not even suggested to complainant before the Trial Court---Though no weapon had been recovered from possession of accused during investigation, but such failure on the part of Investigating Officer, could not, by itself, throw the entire prosecution case against him, which had otherwise been amply proved through ocular account furnished by two injured witnesses who were supported by Medical evidence and corroborated by motive---plea of one of accused persons regarding his being a child at the time of occurrence, had not been taken during entire pendency of his trial---Such plea was clearly an afterthought---Sentence passed by Trial Court against said accused, had been found to be such which could have been passed against him even by Juvenile Court---In view of nature of offence committed by accused, they did not deserve anything, but maximum sentence of imprisonment, which had been correctly passed by Trial Court against them and same also could not be enhanced---Prosecution having succeeded in proving its case against both accused persons beyond reasonable doubt, conviction and sentence recorded against them by the Trial Court, were upheld and maintained.

Rana Muzaffar Hussain for Appellants (in Criminal Appeal No.1844 of 2001).

Tariq Mehmood Sipra for Appellant (in Criminal Appeal No.1921 of 2001).

Zafar Iqbal Chohan for the Complainant (in Criminal Appeal No.1844 of 2001 and Criminal Appeal No.1921 of 2001 and for the Petitioner in Criminal Revision No.80 of 2002).

Asif Mehmood Cheema, Asstt. A.-G. for the State.

Date of hearing: 20th February, 2004.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 584 #

2006 P Cr. L J 584

[Lahore]

Before Syed Shabbar Raza Rizvi, J

NAZIR AHMAD and another --Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.9189, B of 2005, decided on 27th December, 2005.

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

----S. 498---Penal Code (XLV of 1860), Ss.450 & 380---Police Order (22 of 2002), Art.155(c)---Pre-arrest bail, refusal of---Accused police officials had conducted an illegal raid without having fulfilled the legal requirements and trespassed into the house of the lady complainant after scaling over its outer wall-Case against accused having been registered on the direction of the Sessions Judge, the same could not be believed to be mala fide---Police also could not be expected to register a case against their own colleagues for any mala fide reason---For the matter of bail before arrest non-attraction of the prohibitory clause of S.497(1), Cr.P.C. to the offence, was not a decisive consideration---Accused had been assigned a specific role in the F.I.R. and recovery had been effected from them---Complainant and her mother-in-law had not only been disgraced and humiliated by the accused, but were also illegally confined in the police station---Direct allegations, prima facie, supported by evidence had connected the accused with the commission of the offence---Delay in registration of the case was explained in the F.I.R. itself--Pre-arrest bail was declined to accused in circumstances.

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

----S. 498---Pre-arrest bail---Principles---Fact that the offence with which the accused is charged does not fall within the prohibitory clause of S.497(1), Cr.P.C., is not a decisive consideration in matter of bail before arrest.

Mian Shahid Rasool for Petitioners.

Ms. Najma Parveen for the State.

Shaukat Hayat, S.-I.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 587 #

2006 P Cr. L J 587

[Lahore]

Before Syed Shabbar Raza Rizvi, J

SHAHBAZ and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.255/B of 2006, decided on 13th February, 2006.

Criminal Procedure Code (V of 1898)---

Zubair's case PLD 1986 SC 173 ref.

Nemo for Petitioners.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 598 #

2006 P Cr. L J 598

[Lahore]

Before M. Bilal Khan, J

IRFAN alias KALU----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.8667/B of 2005, decided on 30th January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/34/109---Bail, refusal of---Accused was nominated in the promptly lodged F.I.R. with a specific role of causing an injury on the eyebrow of one deceased and the other fatal injury to the female deceased by slashing her throat---Plea of alibi did not carry any weight in the presence of overwhelming prosecution evidence---Complainant and other witnesses had resolutely stuck to their stance taken in the F.I.R. and in their statements recorded under S.161, Cr.P.C.---Medical evidence had supported the prosecution version---Two innocent persons had lost their lives allegedly at the hands of the accused and his co-accused---Offence with which the accused was charged was hit by the prohibitory clause of S.497(1), Cr.P.C.---Bail was declined to accused in circumstances.

N.A. Butt for Petitioner.

M. Saleem Shad for the State with Bashir Ahmad, A.S.-I.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 606 #

2006 P Cr. L J 606

[Lahore]

Before Ijaz Ahmad Chaudhry, J

ZULFIQAR and 8 others----Petitioners

Versus

NAZIR AHMAD and another----Respondents

Criminal Revision No.89 of 2003, heard on 27th January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 202---Penal Code (XLV of 1860), 5.302---Private complaint---Summoning of accused---Validity---Sessions Court seized of the private complaint after having recorded the statement of the complainant had referred the matter to the Magistrate for inquiry and on receipt of the inquiry report had issued process against the accused to face the trial vide impugned order---Contention was that the accused having not been joined in the investigation before the Magistrate, could not have been summoned by the Sessions Court in the complaint---Held, purpose of investigation had been defined in the Code of Criminal Procedure and it was immaterial whether the "inquiry" or "investigation" should be made under S.202, Cr.P.C., as both the words had been used in subsection (1) of S.202, Cr.P.C., according to which the Court by itself could inquire into the matter or refer it to the Justice of Peace or any Police Officer or to such other person as the Court thought fit, for ascertaining the truth or falsehood of the complaint, in which accused could not be allowed to interfere---Evidence recorded at the preliminary stage and the accusation made in the complaint were to be considered by the Trial Court to find out if a prima facie case was made out for summoning the accused to face the trial---Stand of the accused and the result of investigation being extraneous considerations, could only be taken during trial by the Trial Court---Two versions regarding the same occurrence had been made, one in the F.I.R. and the other in the private complaint---Three eye-witnesses had supported the version of the complaint---Accused, according to the Magistrate were, prima facie, involved in the case---Sessions Court, after perusing the evidence and agreeing with the report of the Magistrate, had issued process against the accused to face the trial---Private complaint could not be summarily rejected merely on the ground that different version was given by the accused, without giving opportunity to the complainant to prove his version at the trial, where the accused would also be at liberty to cross-examine the witnesses besides adducing their defence version---Impugned order did not suffer from any illegality---Petition was dismissed accordingly.

Muhammad Ibrahim and others v. Qudrat Ullah ' Ruddy and others PLD 1986 Lah. 256 distinguished.

Riaz Ahmad v. The Additional Sessions Judge, Gujrat and another 1995 PCr.LJ 14; Mazhar Abbas v. The State and another 2004 PCr.L1 1144; Mst. Fatima Bibi v. Muhammad Jamil and 4 others 1988 PCr'.LJ 864; PLD 1985 SC 62; 2000 SCMR 1904; PLD 1986 Criminal Cases 316 and PLD 1988 FSC 41 ref.

Sycd Ijaz Qutab for Petitioners.

S.D. Qureshi for the State.

Date of hearing: 27th January; 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 617 #

2006 P Cr. L J 617

[Lahore]

Before Fazal-e-Miran Chauhan and Sh. Javaid Sarfraz, JJ

MUIIAMMAD TARIQ----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.3348/B of 2005, decided on 7th December, 2005.

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

----S. 497---Penal Code (XLV of 1860), Ss.409/ 109---Prevention of Corruption Act (II of 1947), S.5(2)---Bail, grant of'---Main accused in the case had already been allowed bail by the Trial Court, who was responsible for defrauding the Bank of huge Pakistani and foreign currency, out of which the accused had allegedly received Rs.4,15,000---Remaining amount was with the said main accused---Accused, thus, was also entitled to bail on the principle of consistency---Case against accused required further probe---Trial had not been concluded and there being no concept of punishment before conviction, accused could not be put behind the bars for indefinite period---Accused was admitted to bail in circumstances.

Ch. Muhammad Akram for Petitioner.

Tariq Ameer Qureshi, Deputy Prosecutor-General for NAB.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 622 #

2006 P Cr. L J 622

[Lahore]

Before Syed Shabbar Raza Rizvi, J

TARIQ SADDIQUE KHOKHAR and 5 others----Petitioners

Versus

ADDITIONAL SESSIONS JUDGE, LAHORE and 3 others----Respondents

Writ Petition No.1215 of 2006, decided on 13th February, 2006.

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

----Ss. 154, 156 & 157---Police Rules 1934, R.25.2(3)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Registration of F.I.R.---Accused petitioners were aggrieved of the order of the Sessions Court whereby the respondent-complainant was directed to approach the concerned S.H.O. with a written application regarding his grievance and the S.H.O. was directed to register a case if the contents of the application disclosed a cognizable offence-Contention was that the said order was not consistent with law, as the S.H.O. was first required to enter substance of the complaint in a Register and then to register the F.I.R.---S.H.O. by means of the impugned order had been directed to register the case if the contents of the application disclosed a cognizable offence, and the same therefore, was consistent with S.154, Cr.P.C.---Question whether the information/complaint was correct or incorrect depended on the investigation subsequent to the registration of the F.I.R.---Section 154, Cr.P.C. being obligatory in nature, S.H.O. has no option but to record the statement of the complainant in the relevant register, if the same disclosed commission of a cognizable offence, otherwise he would record a report under 5.155, Cr.P.C.---S.H.O. was, consequently directed to register an F.I.R., if the information reported to him by the respondent-complainant disclosed commission of a cognizable offence and to investigate the same as required under S.156, Cr.P.C. read with R.25.2(3) of the Police Rules, 1934, or to proceed under S.157, Cr.P.C., as the case may be---Constitutional petition was disposed of accordingly.

PLD 1999 Lah. 417; PLD 1990 Lah. 428; Sycd Saeed Muhammad Shah v. State 1993 SCMR 550; State v. Zulfigar Ali Bhutto PLD 1978 Lah. 523 and M. Anwar's ease PLD 1972 Lah. 493 ref.

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

----Ss. 154 & 157---Information in cognizable cases and procedure where cognizable offence is suspected---Registration of a case under S.154, Cr.P.C. and non-investigation under S.157, Cr.P.C. are two distinct actions---Firstly if a complaint discloses commission of a cognizable offence, the Police Officer has no discretion, but in the second situation he has discretion to refuse investigation.

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

Kh. A. Tariq Rahim for Petitioners.

Malik Muhammad Jamil Awan for Respondents.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 629 #

2006 P Cr. L J 629

[Lahore]

Before Fazal-e-Miran Chauhan, J

TASAVER and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.3552/B of 2005, decided on 16th January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/452/440/148/149/ 109---Bail, grant of---No role was ascribed to the accused except making ineffective firing at the time of occurrence---Accused had not used their weapons at all to cause any injury either to the deceased or to any witness---Was yet to be established whether the accused had common intention in the murder of the deceased---Intention being always subjective state of mind was difficult to be determined at this stage in the absence of a compelling evidence for positive deduction---Case of accused, thus, needed further inquiry---Bail was granted to accused in circumstances.

Nabi Bux alias Nabu v. The State 2005 YLR 1531; Muhammad Sadiq and another v. The State 1996 SCMR 1654; Muhammad Akram v. The State 2005 PCr.LJ 596; Yaroo v. The State 2004 SCMR 864 and Muhammad Maroon and another v. The State 1994 SCMR 2161 ref.

Muhammad Asif Ismail for Petitioners.

Muhammad Usman Sheikh for the Complainant.

Mumtaz Hassain Awan for the State with Khalid Mehmood, A.S.-I.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 636 #

2006 P Cr. L J 636

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD YOUNIS----Petitioner

Versus

SHAHID CHEEMA and 2 others----Respondents

Criminal Revision No.888 of 2005, heard on 18th January, 2006.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 5(1)---Sessions Court had dismissed the complaint filed by the petitioner under S.3 of the Illegal Dispossession Act, 2005, summarily vide impugned order---Validity---Complainant had levelled a specific allegation that the respondent had only purchased 4 Kanals and 5 Marlas of land, but in excess of his entitlement he had taken possession of 7 Kanals and 15 Marlas of land owned by the complainant---Court on filing of the complaint under the Illegal Dispossession Act, 2005, had to first refer the matter to the S.H.O. concerned for investigation and after receiving his report to take cognizance and to proceed with the trial---S.H.O. on such reference did not investigate the matter but only submitted parawise comments to the private complaint with a vague report, stating that police was not competent to interfere in the matter--Sessions Court instead of referring the matter again to the S.H.O. for proper investigation under S.5(1) of the said Act, had dismissed the complaint summarily without referring to any document and thus, failed to exercise jurisdiction vested in it in a proper manner---Impugned order was set aside being not sustainable in law and the case was remanded to the Sessions Court for decision afresh in accordance with the provisions of the Illegal Dispossession Act, 2005.

Ch. Hafeez Ahmed for Petitioner.

Muhammad Iqbal for the State.

Shamim Iqbal Butt for Respondent No.1.

Date of hearing: 18th January, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 659 #

2006 P Cr. L J 659

[Lahore]

Before Muhammad Nawaz Bhatti, J

ABU BAKAR----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.743/M of 2005, decided on 8th December, 2005.

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

----Arts. 3/4---Criminal Procedure Code (V of 1898), Ss.561-A, 346, & 347---Constitution of Pakistan (1973), Art.12---Quashing of order---Case against accused had been entrusted to Sessions Court for trial by means of the impugned order on the ground that huge quantity of heroin being involved in the case and the offence being punishable with imprisonment for life, Magistrate Section 30 would not be competent to pass reasonable sentence---Validity---Case against accused was registered in the year 1994 when neither the Control of Narcotic Substances Ordinance, 1995, nor Control of Narcotic Substances Act, 1997, was on the statute book---According to second proviso of Art.4 of the Prohibition (Enforcement of Hadd) Order, 1979, offence committed by the accused was punishable with imprisonment for life---Control of Narcotic Substances Ordinance, 1995, was enforced on 15-8-1995 and its S.9 enhanced the punishment of imprisonment for life to death---Ordinance being a penal one could not have retrospective effect and the accused could not be charged or tried under S.9 thereof--Article 12 of the Constitution had also safeguarded the right of accused and provided protection against retrospective punishment---Offence committed by the accused, therefore, was not punishable with death in any case and the same could be tried by Magistrate Section 30---Impugned order was consequently set aside and the case was sent back to the Court of Magistrate Section 30 for trial in accordance with law---However, if the Trial Court before pronouncement of judgment came to the conclusion that it could not adequately sentence the accused, it might exercise its powers under Ss.346/347, Cr.P.C.---Petition was accepted accordingly.

Muhammad Wazir alias Jeero and another v. The State 2002 YLR 1961 ref.

Iftikhar Ahmad Rathore for Petitioner.

Mubashar Latif Gill, A.A.-G. for the State.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 684 #

2006 P Cr. L J 684

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Ckaudhry, JJ

TAHIR MAHMOOD alias TAHRI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.1726 of 2000, heard on 26th January, 2006.

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

----S. 302(b)---Appreciation of evidence---Accused in his statement recorded under S.342, Cr.P.C. had admitted his presence at the spot and claimed to have made one lire in self-defence---Motive for the occurrence was not proved---Occurrence had taken place at the spur of the moment in which both the parties had made cross-firing---Deceased had sustained only one injury on his face and to bring the same in line with the medical evidence, complainant had made dishonest and material improvements at the trial---Complainant was not a truthful witness and his sole uncorroborated statement could not be relied upon to maintain conviction on the murder charge---Plea' taken by accused in his statement under S.342, Cr.P.C. showed that he had acted in self-defence at the time of occurrence and he had committed no offence in circumstances, when prosecution had even failed to prove that the fire made by the accused had hit the deceased resulting into his death---Accused was acquitted on benefit of doubt accordingly.

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

----S. 302(b)---Appreciation of evidence---Principle---Defence plea to be believed or rejected in toto in case of failure of prosecution case---Prosecution has to stand on its own legs and on failing to discharge the said onus, if conviction is to be recorded on the special plea taken by the accused, that has to be believed or rejected in toto and not in piecemeal to suit the prosecution version.

Khawaja Sultan Ahmad for Appellant.

M.A. Zafar for the Complainant.

Asif Hussain Sheikh for the State.

Date of hearing: 26th January, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 702 #

2006 P Cr. L J 702

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD ASLAM KHAN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.39/B of 2006, decided on 30th January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.380/335/337-L(2)---Bail, grant of---Offence under S.380, P.P.C. had been deleted by the police during investigation---Occurrence, according to F.I.R. appeared to have taken place at the spur of the moment as a result of some altercation between the parties---Accused party was not armed with any weapon and only fist blows were allegedly given to the complainant---Motive behind the incident was still shrouded in mystery---Medico-legal report of the complainant seemed to have been tampered with---Possibility of false involvement of accused in the case could not be ruled out---Case of accused, thus, needed further probe as envisaged by S.497(2), Cr.P.C.---Accused was behind the bars for the last more than 2-1/2 months and he was not required by the police---Bail was allowed to accused in circumstances.

Safdar Hussain Tarar for Petitioner.

Qaiser Nawaz Niazi for the State.

Malik Muhammad Jamil Awan for the Complainant.

Manzoor Ahmad, S.-I. with record.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 710 #

2006 P Cr. L J 710

[Lahore]

Before Ali Nawaz Chowhan and M.A. Shahid Siddiqui, JJ

ANWAR and others---Petitioners

Versus

THE STATE----Respondent-

Criminal Miscellaneous No.386/B of 2006, decided on 15th February, 2006.

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

----Ss. 497(2) & 540-Penal Code (XLV of 1860), Ss.337-H(ii), 337-L(ii), 148 & 149---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10(4) & II--Anti-Terrorism Act (XXVII of 1997), S.7---Bail, grant of---Further inquiry---Complainant and alleged abductee as prosecution witnesses, in their statements before Trial Court in examination-in-Chief, had supported prosecution case, but when they were recalled for cross-examination, they made different statements and resiled from what they had stated previously in examination-in-chief--Statements of said witnesses in examination-in-chief were recorded by the Trial Court itself and not by any other Court--By so doing Trial Court had abused the procedure---Alleged abductee, who had resiled from her previous statement, being a pliable person, who had made different statement at different times, her testimonies were to be taken with caution and care---As to what was the legal effect of said latter statement, that could be gone into by the Trial Court after full debate--Case against accused being of further inquiry, they were admitted to bail.

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

---S. 540--Re-summoning a person as a witness---Powers of the Court---Provisions of S.540, Cr.P.C. did not give absolute power to call anybody or any person without any reason for examination.

Abid Saqi for Petitioners.

Mrs. Salma Malik, A.A.-G. with Muhammad Riaz S.-I.

Masood Sadiq Mirza for the State.

Imran Asmat Chaudhry for the Complainant.

2006 P Cr. L J 810

[Lahore]

Before Fazal-e-Miran Chauhan. J

SADIQ----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.2897/B of 2005, decided on 19th January. 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860). Ss.302 & 34---Bail, grant of---Further inquiry---Accused had been attributed a simple injury on the person of deceased which had not been contributed to the death of the deceased---Even otherwise, accused was declared innocent by Local Police and a discharge report was prepared, but Magistrate did not agree with the same---Opinion of the police, though was not binding on the Courts, but it could be considered for grant or refusal of bail, if same was based on some valid reasons---Case of accused being that of further inquiry falling within 1st Proviso to S.497, Cr.P.C., he was admitted to bail.

Kamran Ismail Mukhdoom and Mian Jehangir for Petitioner.

Muhammad Akbar Chaudhary for the State along with A.S.-I. Muhammad Khalid, Police Station Dajal District Rajanpur.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 816 #

2006 P Cr. L J 816

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD ASLAM----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.645/B of 2006, decided on 28th March, 2006.

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---Record showed that lady allegedly abducted, had filed a suit against her husband for dissolution of marriage---Lady had also sought protection from Magistrate who sent her to Darul Amaan from where she was released and it was several days thereafter that she was medically examined and positive report was given---Alleged abductee had stated before Family Court that she had joined her husband and she did not want to pursue the suit---Lady was medically examined after about one year from her statement made before Family Court---Case being of further inquiry, accused was admitted to bail.

Malik Mumtaz Akhtar for Petitioner.

Muhammad Ayyub for the State.

Mehr Haqnawaz Hamayon for the Complainant.

Ghulam Hashim, S.-I. with records.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 825 #

2006 P Cr. L J 825

[Lahore]

Before Muhammad Nawaz Bhatti, J

MUSHTAQ AHMAD----Petitioner

Versus

AKHTAR HUSSAIN and 3 others----Respondents

Criminal Revision No.369 of 2005, heard on 19th January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 203---Dismissal of private complaint---Additional Sessions Judge, after considering statement of complainant and preliminary statement of witness, dismissed private complaint for the reason that no grounds were available for summoning respondents as accused---Complaint having been filed after considerable delay, there was possibility of improvement and concoction in prosecution version---Aggrieved person, though had a right to agitate his grievance for redressal before police or Court, but in case no justification and proper explanation was given for inordinate delay and material produced by him was insufficient, Court would be justified in not issuing the process---Process was not to be issued as a matter of course---Each and every complaint was to be scrutinized and the material produced was to be examined and process was issued only when material produced was found to be sufficient---No illegality having been found in the impugned order, as Additional Sessions Judge had authority to dismiss private complaint without summoning accused.

Noor Elahi's case 1966 SCMR 708 ref.

Jawad Hussain Jafri and Syed Irshad Hussain Jafri for Petitioner.

Sardar Muhammad Akram Khan Pitafi for Respondents Nos.1 and 2.

Mubashir Latif Gill, A.A.-G. for the State.

Date of hearing: 19th January, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 832 #

2006 P Cr. L J 832

[Lahore]

Before Maulvi Anwarul Haq, J

Ch. ABDUL HAMEED----Petitioner

Versus

D.P.O. DISTRICT VEHARI and 7 others----Respondents

Writ Petition No.476 of 2006, heard on 22nd February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 195(1)(c)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application for registration of case---Petitioner filed application for direction to S.H.O. to register a case against respondents---Additional Sessions Judge/Justice of Peace to whom matter was entrusted, after getting report from Police, dismissed said application holding that documents in question being in the Court, case could only be got registered on the complaint of said Court---Offending documents bore the date 13-5-2005, whereas suit in respect of said documents was filed on 18-7-2005---Case, prima facie did not fall within the mischief of S.195(1)(e), Cr.P.C.---Allowing constitutional petition, impugned order of Additional Sessions Judge dismissing application of petitioner, was declared to be without lawful authority and was set aside---Station House Officer of police station was directed to record statement of petitioner and to proceed further in the matter strictly in accordance with law.

Muhammad Shafi v. Deputy Superintendent of Police (Malik Gul Nawaz) Narowal and 5 others PLD 1992 Lah. 178 ref.

Mumtaz Ahmad Wattoo for Petitioner.

Rana M. Nazir Saeed for Respondent No.3.

Nemo for others.

Date of hearing: 22nd February, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 843 #

2006 P Cr. L J 843

[Lahore]

Before Muhammad Nawaz Bhatti, J

GHULAM MUHAMMAD----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.157/CB of 2005, decided on 2nd February, 2006.

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

----S. 497(5)---Bail, cancellation of---Considerations---Considerations for cancellation of bail were different from the considerations for grant of bail---Bail granted to an accused could only be recalled if; bail was granted by a Court having no jurisdiction to grant it; accused on bail committed same offence for which he was being tried or had been convicted, accused on bail hampered the investigation; accused on bail tempered 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 implicated as principal offender in several cases which badly affected the Society at large as in the cases of heroin, smuggling, etc.; granting of bail to an accused had 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 the case were fully implicating accused for attracting S.497(1), Cr.P.C.---Strong and exceptional grounds were needed for cancellation of bail when same was granted by a Court of competent jurisdiction.

Bashir Ahmad v. Mirza Muhammad Ayub 1991 MLD 579 ref.

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

----S. 497(5)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Penal Code (XLV of 1860), S.377---Petition for cancellation of bail---Trial in case had commenced and case was fixed for evidence by the Trial Court and attendance of witnesses had been marked---Even otherwise when a case was fixed for hearing, ordinarily the bail application was not decided on merits and matter was often left to the discretion of the Trial Court and that practice was directly relatable to the "question of prejudice"---Petition for cancellation of bail being without any substance, was dismissed.

Muhammad Yousaf v. Muhammad Iqbal 2005 MLD 13 and Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

Kh. Qaiser Butt for Petitioner.

Abdul Aziz Khan Niazi for Respondent No.2.

Syed Mukhtar Masood Bukhari for the State.

Hafeez Shah, A.S.-I. with record.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 853 #

2006 P Cr. L J 853

[Lahore]

Before Muhammad Nawaz Bhatti, J

MUHAMMAD IMRAN and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1 of 2006 in Criminal Appeal No.683 of 2005, decided on 20th February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss. 302, 201, 202, 323, 319 & 34---Petition for suspension of sentence---Sentence awarded in case was short one (five years)---Incident was an accidental one and hearing of appeal could take some time---Sentence awarded to petitioner was suspended, in circumstances.

Abdul Hameed v. Muhammad Abdullah and others 1999 SCMR . 2589; Zahid Hussain v. The State 2005 MLD 1934 and Nazir Ahmad v. The State 2005 PCr.LJ 657 ref.

Ch. Pervaiz Aftab for Petitioners.

Rana Tahir Mehmood for the State.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 864 #

2006 P Cr. L J 864

[Lahore]

Before Asif Saeed Khan Khosa, J

ABID SOHAIL----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous Nos.4766/B of 2003, 8552/B, 2965 and 5216 of 2005, decided on 9th January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 148 & 149---Bail, refusal of---Accused had sought bail on the ground that in previous bail application direction was issued to the Trial Court by High Court to conclude trial of accused within next three months, but said direction had not been complied with---Validity---Such direction issued by the High Court were only administrative directions and same would not confer any right of bail on accused, to the effect that if such directions were not complied with by the Trial Court on account of any exigency or any fresh development in the case, accused would be entitled to bail---F.I.R. in the present case, had been lodged with reasonable promptitude and accused had not only been specifically nominated therein, but fatal fire-arm injury on forehead of deceased had been attributed to him---Eyewitnesses mentioned in F.I.R., who had fully implicated accused, had stood by their statements made by them before the police---Prima facie, medical evidence had confirmed the seat of injury allegedly caused by accused to deceased as well as use of fire-arm by him for causing said injury---Accused stood directly connected with motive set up in the F.I.R.---Gun of .12 bore had also been recovered from possession of accused and the report of Forensic Science Laboratory available on record had shown that said gun had matched with one of the crime empties recovered from the place of occurrence---Trial Court had assured that every effort would be made by it to conclude trial of accused as early as possible---Accused could not be admitted to bail, in circumstances.

Miss Aaliya Neelum for Petitioner.

Sheikh Tahir Abbas Rizvi with Muhammad Akram A.S.-I. with record for the State.

Date of hearing: 9th January, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 867 #

2006 P Cr. L J 867

[Lahore]

Before Muhammad Farrukh Mahmud and Fazal-e-Miran Chauhan, JJ

KHADIM HUSSAIN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.610 of 2004, heard on 20th March, 2006.

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

----S. 9(c)---Appreciation of evidence---Report of Chemical Examiner did not support prosecution case and while trial was in progress an application was made to the Area Magistrate for preparing fresh parcel, without issuing any notice to accused and without any permission from the Trial Court---Separate parcels were handed over to police officials who instead of sending them to that Chemical Examiner who had earlier formulated opinion, sent the same to other Chemical Examiner of different city who, after receiving same, gave a favourable opinion to prosecution after eleven months---After case property was produced before the Trial Court and the trial had commenced, then Area Magistrate was left with no jurisdiction to tamper with case property without permission of Trial Court---Magistrate did same without giving any notice to accused and without 'taking permission from the Trial Court---After obtaining fresh report from a different Chemical Examiner, prosecution evidence, especially witnesses of recovery and Investigating Officer, who had drafted complaint were not re-examined----Accused, in circumstances was seriously prejudiced by acts of prosecution witness as well as Area Magistrate---Accused had fundamental right to be dealt with in accordance with law---Mala fide of police was proved from the fact that though Chemical Examiner working at original place had asked for fresh samples, but same were not sent to him, but were sent to Chemical Examiner of choice working at different place---Value of subsequent report of different Chemical Examiner was worthless in circumstances---Accused had already suffered more than three years' R.I. and nine months in jail---Impugned judgment passed against accused by the Trial Court, was set aside extending him benefit of doubt and he was acquitted of the charge against him.

Sardar Altaf Hussain Khan for Appellant.

Muhammad Qasim Khan for the State.

Date of hearing: 20th March, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 875 #

2006 P Cr. L J 875

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Mst. IRSHAD BIBI and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.1281 of 2004, heard on 2nd March, 2006.

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

----Ss. 302(b) & 201/34---Appreciation of evidence---Statements of eye-witnesses had already been disbelieved by the Trial Court while acquitting three co-accused, who allegedly had committed the offence---Present accused had been convicted only on the ground that they had admitted the allegation levelled by the prosecution in their statements recorded under S.342, Cr.P.C., although they were only alleged to have facilitated the co-accused in the commission of the crime---When the prosecution evidence had been disbelieved regarding commission of the occurrence by the said co-accused, the same could not be believed against the present accused---Prosecution had to stand on its own legs and prove the case against accused beyond any shadow of doubt---Where the prosecution evidence had been disbelieved, any admission made by the accused was irrelevant and could not be used as an incriminating piece of evidence against them---When the relevant prosecution witnesses had not been cross-examined by the defence counsel, it would not amount to an admission on the part of the accused, as the Trial Court was obliged to look into the details of the prosecution evidence produced by it to connect them with the commission of the crime---Prosecution had failed to bring home guilt to the accused through any cogent piece of evidence---Accused were acquitted in circumstances.

Shamoon alias Shamma v. The State 1995 SCMR 1377; Rahim Bakhsh v. Crown PLD 1952 FC 1 and S. Mahmood Alam Shah v. The State 1987 PSC 1277 ref.

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

----Ss. 302(b) & 201/34---Burden of proof---Onus to prove its case beyond reasonable doubt is on the prosecution irrespective of any plea raised by the accused in his defence.

Shamoon alias Shamma v. The State 1995 SCMR 1377 ref.

------Ss. 302(b) & 201/34---Criminal Procedure Code (V of 1898), 5.342---Conviction on admission of accused---Validity---Where an accused is convicted solely on the basis of an admission alleged to have been made by him, without calling his attention to the admission and asking for his explanation at the time of his examination in Court, it would amount to a violation of the fundamental principle of natural justice and would be most unfair to him.

Rahiun Bakhsh v. Crown PLD 1952 FC 1 ref.

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

----Ss. 302(b) & 201/34---Appreciation of evidence---Principles---Court not to be influenced by non-cross-examination of witnesses by accused---Courts are generally influenced in arriving at their conclusions that the accused did not direct any cross-examination to challenge the testimony of the witnesses---Such an approach in criminal cases in appreciation of evidence is not approved, as proof of a fact depends not upon the accuracy of the statement but upon the probability of its having existed.

S. Mahmood Alam Shah v. The State PLD 1987 SC 250 ref.

Mian Abdul Qayyum Anjum for Appellants (on State expenses).

Muhammad Aslam Malik for the State.

Date of hearing: 2nd March, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 898 #

2006 P Cr. L J 898

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mehmood, JJ

MUHAMMAD AKRAM----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.311 and Murder Reference No.310 of 2001, heard on 23rd January, 2006.

Penal Code (XLV of 186U)---

----S. 302(b)-Appreciation of evidence---Both deceased and accused were minors at the time of occurrence and both were residing in front of each other---No background of enmity existed between the parties---Occurrence had been admitted by accused by giving reasons---Judgment in the case was recorded more than seven months after coming into field Juvenile Justice System Ordinance, 2000, but benefit of same was not given to accused who was minor at the time of occurrence---Trial Court, in circumstances, had failed to perform its duty---Eye-witness account, Medical evidence and admission of accused, if accepted, even then it was not a case of death sentence for two reasons: firstly it was a case of single injury; and secondly accused according to prosecution itself was 16/17 years old at the time of his arrest---Maintaining conviction of accused under S.302(b), P.P.C., his sentence of death was converted to life imprisonment with benefit of S.382-B, Cr.P.C.---Death sentence was not confirmed and murder reference was replied in negative.

PLD 2004 SC 758 and 2002 YLR 3553 ref.

Khalid Ibne Aziz for Appellant.

Ch. Falak Sher for the State.

Date of hearing: 23rd January, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 944 #

2006 P Cr. L J 944

[Lahore]

Before Asif Saeed Khan Khosa, J

NADEEM alias BABA----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.40-J of 2003, decided on 7th October, 2005.

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

----S. 302---Appreciation of evidence---Occurrence had taken place during night---F.I.R. was not lodged at police station---Record did not show as to who had informed the police about availability of the dead body in the hospital---Complainant had made the statement before the police in the hospital after sufficient delay which could have been utilized by the prosecution not only to procure and plant the complainant and the eye-witnesses, but also to fabricate and manufacture a story--Complainant and the other eye-witness were closely related to the deceased and were also chance witnesses---Ocular testimony being inconsistent, failed to inspire confidence and did not receive any corroboration from any independent source---Motive set up by the prosecution could not be established---Recovery of the blood-stained dagger from the possession of accused having not been put to accused in his statement under S.342, Cr.P.C. was legally inconsequential and the same could not be used against him---Said recovery was not only in flagrant violation of S.103, Cr.P.C. but being a joint one had also no evidentiary value and was against the case of prosecution, as same was not even effected from the exclusive possession of accused---Medical evidence being unable to fix the identity of the culprit could not, by itself, support the prosecution case when all other pieces of prosecution evidence did not inspire confidence---Accused was acquitted on benefit of doubt in circumstances.

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

----S. 342---Power to examine the accused---General rule---Any piece of incriminating evidence not put to the accused at the time of recording his statement under S.342, Cr.P.C. cannot be used against him.

--Medical evidence---Evidentiary value---Medical evidence cannot fix the identity of a culprit.

Salman Safdar, Barrister-at-Law (defence counsel) at the State expense.

Chaudhry Bashir Ahmad Gill for the State.

Date of hearing: 7th October, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 952 #

2006 P Cr. L J 952

[Lahore]

Before Khawaja Muhammad Sharif, J

FALAK SHER----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.2254 of 2003, heard on 24th March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 345---Penal Code (XLV of 1860), Ss.302(b) & 311---Appreciation of evidence---Compromise arrived at between accused and legal heirs of deceased---During pendency of appeal, an application was filed for acquittal of accused on basis of compromise arrived at between accused and legal heirs of deceased---In the report called from Sessions Judge regarding genuineness of said compromise it was stated that compromise was arrived at between parties for mutual harmony---No reason existed not to accept said compromise, which appeared to be genuine and without coercion and was according to settled principles laid down by superior Courts---Accepting said compromise, appeal was allowed and impugned judgment was set aside and accused was acquitted from the case and was ordered to be released.

Justin Gill for Appellant.

Nemo for the State.

Date of hearing; 24th March, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 966 #

20066 P Cr. L J 966

[Lahore]

Present: Khawaja Muhammad Sharif and Ijaz Ahmad Chaudhry, JJ

TARIQ JAVED and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.1234 of 2004, decided on 6th October, 2005.

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

----S. 9(c)---Appreciation of evidence---Prosecution witnesses had no enmity with the accused to falsely involve them in the case---Such witness had remained consistent regarding the time, place and manner of the recovery effected from the accused---Police officials were as good or bad witnesses as public witnesses and they could not be disbelieved merely for such reason, because generally public witnesses were not coming forward due to the fear of. the desperate accused persons involved in such-like cases---Huge quantity of "poppy" recovered from the accused could not be falsely planted on them---Accused could not be exonerated from the charge merely on the ground that the case property bag when opened in the Court was only containing sand, as inquiry was being conducted in this regard---According to the report of Chemical Examiner at least 10 Kgs. material recovered from the accused out of the total quantity of 500 Kgs. was containing "post"---Prosecution as such had been able to prove its case against the accused beyond any shadow of doubt---Conviction and sentence of accused were upheld in circumstances.

Zia Ullah Khan Niazi for Appellants.

Muhammad Sharif Cheema for the State.

Date of hearing: 6th October, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 974 #

2006 P Cr. L J 974

[Lahore]

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

ABDUL REHMAN ----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.59/J of 2005, decided on 4th October, 2005.

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

----S. 9(c)---Appreciation of evidence---Recovery witnesses, all public servants, had no background of any ill-will or bitterness against the accused so as to falsely implicate him in the case, and they had made consistent statements which inspired confidence---Chemical Examiner's report had confirmed that the contraband recovered from the accused was "Charas"---Conviction of accused was maintained in circumstances--Accused had already served out his sentence of three years' R.I., but he being unable to pay the fine of Rs.20,000 was undergoing the sentence of six months' S.I. for default in payment of the same---Sentence of fine was reduced to Rs.10,000 and in case of non-payment thereof accused was directed to suffer one month's S.I. in view of the said situation---Appeal was disposed of accordingly.

Raja Akhtar Nawaz for Appellant.

Abdul Majeed Chishti for the State.

Date of hearing: 4th October, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 976 #

2006 P Cr. L J 976

[Lahore]

Before Muhammad Nawaz Bhatti, J

MUSHTAQ AHMAD----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.2494/B of 2005, decided on 2nd February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Penal Code (XLV of 1860), 5.377---Bail, refusal of---Medical Certificate indicated that injuries were obvious on the victim---Statement of the victim and complainant available on record were against accused---Trial in the case had commenced and case was fixed for evidence and attendance of witnesses had also been marked---Accused, in circumstances did not deserve concession of bail.

Naqi Hussain Shah v. The State 1992 SCMR 600; Muhammad Anar v. The State 2004 MLD 144; Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585; Said Akbar and another v. Gul Akbar and another 1996 SCMR 931; Mian Dad v. The State 1992 SCMR 1418 and Allah Ditta and others v. The State 1990 SCMR 307 ref.

Sardar Balakh Sher Khosa for Petitioner.

Kh. Qaiser Butt for the Complainant.

Syed Mukhtar Masood Bokhari for the State.

Hafeez Shah, A.S.-I.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 980 #

2006 P Cr. L J 980

[Lahore]

Before Muhammad Farrukh Mahmud and Sardar Muhammad Aslam, JJ

MUHAMMAD NASRULLAH----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.426 and Murder Reference No.246 of 1999, heard on 12th April, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Occurrence having taken place at 5.30 p.m. when light was available, there was no question of mistaken identity of accused---One of prosecution witnesses, who was nearest relative of deceased, had no background of enmity or ill-will against accused so as to depose against him falsely---Statement of said prosecution witness was fully corroborated on all material particulars by other prosecution witness who was not related to deceased or complainant, but was an independent witness with no background of hostility against accused---Both said witnesses stood the test of cross-examination and had given confidence inspiring evidence--Eye-witnesses account was supported by medical evidence---Witnesses had correctly mentioned seat of injury---Prosecution had also successfully proved the motive---Acquittal of co-accused by the Trial Court, would not advance case of accused as co-accused, who was shown to be armed with rifle, did not cause any injury either to deceased or to any of prosecution witnesses---Recovery of weapon however, had not been proved to the judicial satisfaction; firstly because it was from an open place; secondly the weapon recovered was not sent to Forensic Science Laboratory, to establish whether it was in working order or not; and thirdly that no empty was recovered from the spot---Prosecution had successfully proved its case against accused through direct evidence which was supported by medical evidence as well as by motive---Mitigating circumstances, however, were available in favour of accused---Accused had caused a single injury and that too on the knee of deceased---No evidence was on record that accused even tried to reload his gun---Deceased was one of accused in a hunt case registered at the instance of father of accused wherein accused had sustained injuries at the hands of deceased---While maintaining conviction of accused for offence under S.302(b), P.P.C., his death sentence was altered to imprisonment for life, accordingly.

Muhammad Ali v. Sikandar Hayat and 2 others 1993 SCMR 236 ref.

Syed Zahid Hussain Bokhari for Appellant.

M. Saleem Shad for the State.

Sardar Akbar All Khan Dogar for the complainant.

Date of hearing: 12th April, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 994 #

2006 P Cr. L J 994

[Lahore]

Before Ali Nawaz Chowhan, J

MUHAMMAD YOUNIS and another----Petitioners

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.72-Q of 2005, decided on 1st December, 2005.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), S.489-F---Quashing of proceedings---Challan in the case was submitted against all the persons named in the F.I.R.---Two accused persons/petitioners moved application for their discharge, but the Trial Court refused to discharge them despite the fact; that in report under S.173, Cr.P.C., both petitioners were placed in Column No.2 with the remarks that they were innocent---Complainant had specifically alleged that cheque in question was issued by person other than the petitioners---High Court, on petition under S.561-A, Cr.P.C., had come to the conclusion that case against petitioners could not proceed on the basis of record and directed the Trial Court not to proceed against them with direction that case against petitioners would be regarded having been cancelled.

Nadeem Shibli for Petitioners.

Muhammad Lived Iqbal for the Complainant.

Ch. Khurshid Anwar Bhinder, Addl. A.-G. for the State.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1005 #

2006 P Cr. L J 1005

[Lahore]

Before Muhammad Farrukh Mahmud and Sardar Muhammad Aslam, JJ

MUHAMMAD NASIM----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.1104 and Murder Reference No.433 of 1998, heard on 4th April, 2006.

Penal Code (XLV of 1860)---

---S. 302(b)-Appreciation of evidence---Sentence, reduction in---Mother of deceased and other prosecution witness had furnished ocular account; their statements regarding main occurrence were very consistent and were supported by medical evidence as well as recovery of dagger which was found to be stained with human blood---Both said witnesses had no previous ill-will or enmity against accused, so as to involve him in a false case---Incident was a daylight occurrence and no mother would substitute the killer of his son---Prosecution, in circumstances had successfully proved its case against accused---Accused, who did not appear as witness under S.340(2), Cr.P.C., had prayed for reduction in sentence alone---Counsel for accused, in circumstances had wisely not pressed for his acquittal---Occurrence was the result of single happening---Deceased and accused were age mates and were playing cards at the time of occurrence---No previous ill-will or enmity existed between the two---Something grave happened between accused and deceased, which led to the incident---Case against accused was not such where extreme penalty of death should be inflicted---Maintaining conviction of accused under 5.302(b), P.P.C., his death sentence was reduced to imprisonment for life---Amount of compensation, however, was maintained.

Khawaja Sultan Ahmad for Appellant.

A.H. Masood for the State.

Date of hearing: 4th April, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1017 #

2006 P Cr. L J 1017

[Lahore]

Before Muhammad Farrukh Mahmud and Sardar Muhammad Aslam, JJ

MANSABDAR alias MANSHA and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.1071 and Murder Reference No.544 of 2000, heard on 4th April, 2004.

Penal Code (XLV of 1860)---

----Ss. 302 & 34---Appreciation of evidence---Sentence, reduction in---Four real brothers were implicated in case for causing murder of deceased---Out of four, one died before commencement of the trial and one other died during pendency of present appeal, while third brother of accused was acquitted---Counsel for accused at the very outset, had submitted that it was not a case of acquittal and had prayed for reduction in sentence of accused---Two injuries were attributed to accused which were caused on the head of deceased---Doctor who had conducted post-mortem examination reported that deceased had received 11 injuries and out of same 8 injuries were caused by a sharp-edged weapon---Two injuries attributed to accused were incised wounds---Two serious injuries due to which death of deceased was caused, were not attributed to accused---Conviction of accused was maintained but taking into consideration, circumstances of case, his death sentence was reduced to imprisonment for life, but amount of compensation was enhanced.

Syed Zulfiqar Ali Bukhari for Appellants.

Riasat Ali Chaudhry for the State.

Date of hearing: 4th April, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1024 #

2006 P Cr. L J 1024

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

MUHAMMAD SIDDIQUE----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.485 and Murder Reference No.572 of 2001, heard on 20th January, 2006.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---F.I.R. was promptly lodged---Two eye-witnesses who were examined by the Trial Court, had fully implicated accused in the case---Ocular account was fully supported by medical evidence and ocular account which had come from unimpeachable source, having intrinsic value, could not be disbelieved by any stretch of imagination---Defence version of accused, had no legs to stand---No mitigating circumstance was found in the case and there was no ground for lesser sentence---Motive, though allegedly was shrouded in mystery, but as ocular account was not only believable, but also corroborated by medical evidence as well as recovery of dagger from accused and positive report of Chemical Examiner and Serologist with regard to dagger/crime weapon, only sentence would be death in the case, even if motive was not proved---Death sentence awarded to accused was confirmed and Murder Reference was answered in affirmative.

Abdul Aziz Khan Niazi for Appellant.

Tanvir Haider Buzdar for the State.

Date of hearing: 20th January, 2006.

2006 P Cr. L J 1080

[Lahore]

Before Maulvi Anwarul Haq, J

ALTAF HUSSAIN and others----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.2681/B of 2005, decided on 17th October, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Bail, grant of---Accused were behind the bars for about last three months without trial---No evidence at all was available that accused had been selling liquor---Even the recovery of proverbial currency notes had not been effected---Present was the first case against accused persons as they did not have any record---Accused were granted bail, in circumstances.

Tariq Zulfiqar Ahmad Chaudhry for Petitioners.

Mehr Muhammad Saleem for the State.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1082 #

2006 P Cr. L J 1082

[Lahore]

Before Muhammad Farrukh Mahmud and Sardar Muhammad Aslam, JJ

MUHAMMAD ARIF----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.362 and Murder Reference No.277 of 2000, head on 20th April, 2006.

Penal Code (XLV of 1860)---

.----Ss. 302(b) & 34---Appreciation of evidence---Incident was night time occurrence at a place which was away from houses of deceased and witnesses---Fire shot was not attributed specifically either to accused or to co-accused, but during trial complainant had made dishonest improvement by attributing fatal shot to co-accused---Site plan which was prepared at the instance of eye-witness showed that fire was caused from a distance of sixty feet, while according to post mortem examination report blackening was present around the wound which was caused by fire-arm, which would mean that injury was caused from a very close range and not from a distance of sixty feet---.12 bore weapon was also used during occurrence, but who used it was not known to eye-witnesses at all---Incident was an unwitnessed occurrence and there was background of hostility and enmity between complainant party and accused---Case was got registered against father, two brothers and accused---Licensed pistol of accused was alleged to have been recovered after more than six months of occurrence, which according to report of Forensic Science Laboratory, was in working order---Such recovery could not be used against accused as no empty of .30 bore pistol was recovered from the spot, but two pellets of .12 bore were recovered from the scene of occurrence---Direct evidence having been disbelieved, conviction could not be recorded on the basis of abscondence alone---Case of prosecution being replete with doubts, appeal was allowed and judgment of the Trial Court, was set aside---Accused was acquitted of all the charges and was released.

Muhammad Yaqoob Sheikh and Muhammad Hussain Sandhu for Appellant.

Muhammad Ashfaq Ahmad Chaudhry for the State.

Nemo for the Complainant.

Date of hearing: 20th April, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1087 #

2006 P Cr. L J 1087

[Lahore]

Before Fazal-e-Miran Chauhan, J

IMDAD ALI----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1213/B of 2005, decided on 18th May, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss.337-F(i), 380, 452, 448, 148 & 149---Bail before arrest; confirmation of---Further inquiry---Complainant, who claimed that property in question belonged to him, could not produce any document to prove his claim---Accused had produced copy of Register Haqdaran for the year 1991-92 showing wife of accused to be owner of land in question along with others---Dispute between parties pertained to a case of civil nature regarding ownership of land in question---As per complainant's own showing, she was not residing in the house at the time of tiling of Complainant had further stated that after death of her husband she had shifted to some other house mentioned in F.I.R.---Delay of one month and 23 days in lodging F.I.R. had not been explained in F.I.R.---Since complainant was not residing in the house at the time of occurrence, question of trespassing the house by accused on the day of occurrence did not seem to be correct---Case of accused was of further inquiry falling within the purview of S.497(2), Cr.P.C.---Bail before arrest granted to accused, was confirmed, in circumstances.

Tariq Zulfiqar Ahmad Chaudhary for Petitioner.

Raja Naeem Akbar for the Complainant.

Sh. Javaid Rashid for the State.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1089 #

2006 P Cr. L J 1089

[Lahore]

Before Muhammad Farrukh Mahmud and Sardar Muhammad Aslam, JJ

WILSON MASIH and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.634, 699 and Murder Reference No.336 of 2000, heard on 18th April, 2006.

Penal Code (XLV of 1860)---

----Ss. 302, 337-A(i) & (ii), 337-F(i), 148 & 149---Appreciation of evidence---Sentence, reduction in---Statements of five witnesses, including injured one, produced by prosecution, fully stood supported by medical evidence and corroborated by motive coupled with the fact that matter was reported to police within an hour---Tenor of cross examination suggested plea of self-defence, but accused chose in their wisdom to take simple plea of denial during their statements recorded under S.342, Cr.P.C.---Prosecution, in circumstances had successfully proved its case against accused and counsel for accused had wisely not pressed for acquittal of main accused---One of the accused at the time of occurrence was about 17 years of age, while other one was about 15 years of age---Case of the prosecution was that both of the accused had acted under the influence of their mother---Age of deceased was about eighty years; in said circumstances, while maintaining conviction of said two accused under S.302(b), P.P.C., their death sentence, was reduced to imprisonment for life to each one---Benefit of S.382-B, Cr.P.C. was also extended to the accused---Other two co-accused, who were ladies, were not armed with any weapon, they had been suffering for their act for more than 11-1/2 years---While maintaining their conviction on each count, their sentence was reduced to the period already served out by them, accordingly.

Aftab Ahmad Bajwa and Justin Gill for Appellants.

Ch. Muhammad Ahad Batalvi for the State.

Date of hearing: 18th April, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1107 #

2006 P Cr. L J 1107

[Lahore]

Before Syed Sajjad Hussain Shah, J

IMTIAZ----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.2247/B of 2006, decided on 13th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-A(ii), 337-F(i), 337-L(i), 337-L(ii), 148 &. 149--Bail, grant of--Injury attributed to accused, according to medical report was a lacerated wound--No report of Radiologist was available on the record and in absence of report/opinion of Radiologist, said injury was presumed to be simple--Offences against accused did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Allegation against accused was that he inflicted a single blow on the head of complainant---Such blow at the most attracted S.337-L(ii), P.P.C., which too did not fall within the prohibitory clause of S.497, Cr.P.C.---Accused was not alleged to have repeated the blow---Even observing the rule of consistency, other co-accused who were attributed similar role had been granted bail by the Court below---No exceptional circumstances had been brought to the notice of High ,court to withhold bail---Accused was admitted to bail, in circumstances.

Muhammad Haroon alias Haroon Rehman v. The State 2004 SCMR 89 ref.

Munir Ahmad Khan Zai for Petitioner.

Ms, Sumaira Afzal for the State with Manzoor, A.S.-I. with record.

Asif Ali Chaudhary for the Complainant.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1109 #

2006 P Cr. L J 1109

[Lahore]

Before Muhammad Farrukh Mahmud and Sardar Muhammad Aslam, JJ

MUHAMMAD MUSHTAQ alias BAO----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.416 and Murder Reference No.109 of 2000, heard on 20th April, 2006.

Penal Code (XLV of 1860)---

----Ss. 302 & 324---Appreciation of evidence---Place and time of occurrence had not been challenged at all---Complainant/prosecution witness, who was 17 years old at the time of occurrence, also having received fire-arm injury during occurrence, his presence had neither been challenged nor could be denied---Complainant had no previous ill-will, grudge or enmity against accused so as to involve him in a false case---Statement of complainant was straightforward and confidence inspiring, he stood the test of cross-examination---No dent could be caused in the veracity of statement of said witness despite lengthy cross-examination, his statement was fully corroborated by the statement of prosecution witness, who was real brother of accused---Other independent witness who was a shopkeeper had also corroborated the story, his presence was admitted by other prosecution witness in his examination-in-chief---Ocular account was also fully supported by medical evidence---Delay in recording `Fard Beyan', stood fully explained---Prosecution story was also corroborated by the factum of recovery of pistol from possession of accused and tallying of empties with the weapon, as was evident from the report of Forensic Science Laboratory---Prosecution, during trial and investigation, tried to introduce another motive, but weakness of motive or non-proving of motive would be of no consequence when murder stood proved from the direct evidence and other circumstances of the case---Defence plea taken by accused was simply absurd---Complainant himself had received a very serious injury during occurrence---Prosecution had proved its case against accused beyond doubt---Accused had taken the life of an innocent person by repeatedly firing at him and he also caused serious injury to the complainant---No mitigating circumstance existed in favour of accused and normal penalty of death had been imposed upon him correctly---Appeal filed by accused was dismissed and judgment passed by the Trial Court convicting and sentencing accused, was upheld.

Ashfaq Ahmad Chaudhry Defence Counsel for Appellant.

Hashim Sabir Raja, A.A.-G. assisted by A.H. Masood for the State.

Date of hearing: 20th April, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1115 #

2006 P Cr. L J 1115

[Lahore]

Before Ali Nawaz Chowhan and Syed Sakhi Hussain Bokhari, JJ

Sh. KHALID MEHMOOD and 3 others ----Petitioners

Versus

THE STATE and 2 others----Respondents

Writ Petitions Nos.3334 and 2724 of 2004, heard on 22nd March, 2006.

National Accountability Ordinance (XVIII of 1999)---

----S. 25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Plea bargain---Quashing of proceedings---Petitioner had assailed Reference which was sub judice before Accountability Court---Except the petitioner, all others had already been discharged because they had entered into the plea bargain pursuant to provisions of S.25 of National Accountability Ordinance, 1999, after having paid losses---Petitioner had refused to enter into plea bargain and had advanced plea that nothing was due from him and that no incriminating evidence stood against him---Petitioner had sought quashing of proceedings against him---Total loss was about 35 Millions and so far recovered because of "plea bargain", was approximately 41 Millions, an amount far above loss suffered by the department and mentioned in the Reference---"Plea Bargain", was permissible for purposes of recovery of loss determined by Chairman, National Accountability Bureau to the co-accused---Petitioner did not go for "plea bargain" because he remained steadfast to his plea that he was innocent---Others/co-accused bargained their positions and paid the amount claimed---Loss as indicated by the department and later on by NAB and attributed to all of them including petitioner, was fully paid and nothing was left to be recovered---Object of National Accountability Ordinance, 1999 and provisions of its S.25, were not merely for punishing people with sentence---Where a recovery could be made and Chairman NAB upon the offer having been voluntarily made had accepted same and pecuniary loss had been made good, case would end and for it to proceed further would have no moral justification in view of the practice of NAB---"Plea bargain" could be entered into by the holder of a public office or by any other person on his behalf which would imply that it could be entered into on behalf of other persons by any person who made good said loss---Once the agency authorized plea bargain and the loss was made good, then agency had to follow what was prescribed by S.25 of National Accountability Ordinance, 1999, which was to discharge such person from all liability in respect of matter or transaction in issue and could not go any further---Loss having been made good, intention of law and its spirit would demand that a similar treatment be extended to petitioner which was extended to other co-accused who had been discharged of their liability after they paid entire loss---Matter was referred back to the Trial Court for arithmetical calculation of loss and recovery effected---If loss had been made good, petitioner would also be discharged in accordance with law.

Mujeeb-ur-Rehman for Petitioner.

Mirza Idrees Baig for NAB.

Date of hearing: 22nd March, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1122 #

2006 P Cr. L J 1122

[Lahore]

Before Maulvi Anwarul Haq and Fazal-e-Miran Chauhan, JJ

ZIA-UR-REHMAN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.778/B of 2006, decided on 30th March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.2(g), 3 & 4---Bail, grant of---Result of Chemical Examination of sample sent to Chemical Examiner, was to the effect that "packet contained grinded/crumbled material of poppy leaves, stalks, seeds, dirt with no poppy heads"---Article 2(g) of Prohibition (Enforcement of Hadd) Order, 1979 defined "intoxicant" to mean an article specified in the Schedule, which also included intoxicating liquor and other articles---Considering result, delivered by Chemical Examiner, in absence of any finding that narcotics could be extracted from item examined by said Chemical Examiner and further that it contained more than 0.2% morphine, it could not be held, prima facie, that same was an intoxicant within meaning of Art.2(g) of Prohibition (Enforcement of Hadd) Order, 1979 Bail, was granted to accused, in circumstances.

Khair ul-Rehman and others v. The State PLD 2005 Lah. 440 ref.

Ch. Pervaiz Aftab for Petitioner.

Mohibul Husnain Qadir Shah for the State.

Asghar Ali, S.-I. Police Station Chabb Kalan.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1124 #

2006 P Cr. L J 1124

[Lahore]

Before Fazal-e-Miran Chauhan, J

SHAHID KARIM----Petitioner

Versus

THE STATE----Respondent

Criminal -Miscellaneous No.3873/B of 2004, decided on 6th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.420, 468, 471, 482, 483, 485 & 486---Bail, refusal of---Accused was caught red handed by police manufacturing adulterated mobil oil filling up same in the tin boxes containing the name and monogram of the complainant's company---Huge quantity of rake sticker and monogram or said company were recovered from the possession of accused---Stickers used and recovered, fell within the definition of "documents" which were used by accused---Provisions of S.468, P.P.C. in circumstances, prima facie, were made out against accused---Sections 420, 482, 483, 485, 468 and 471, P.P.C., though did not fall within the prohibitory clause of S.497, Cr.P.C., but the courts were not obliged to exercise their discretion in favour of an accused, who was involved in a crime which affected not only a single person, but the public at large---Court had jurisdiction to refuse bail, if such course of action was compulsory in nature---Accused was running business of fake mobil oil, which was damaging and deteriorating the property of public at large and was also damaging good will of complainant's company using its trade mark and stickers for selling his substandard mobil oil---Offence committed by accused admittedly was heinous in its nature, though did not fall within prohibitory clause of S.497, Cr.PIC.---Bail petition of accused was dismissed.

Ch. Parvaiz Aftab for Petitioner.

Pir Ajmal Hussain Qureshi for the Complainant.

Rao Atif Nawaz for the State with A.S.-I. Muhammad Tahir.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1127 #

2006 P Cr. L J 1127

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

HASIL KHAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.535 and Murder Reference No.498 of 2001, heard on 20th January, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Deceased was aged 13/14 years and motive of crime was that the deceased had asked accused not to abuse his uncle which the accused considered as his insult and thereafter he gave hatchet blow on the person of deceased---Due to injury, brain matter was oozing from brain of deceased and most of the injuries were on or around his head and accused repeatedly caused injuries---Complainant though was father of deceased, but he had no previous animus against accused---Case was that of single accused and promptly lodged F.I.R.---No question of substitution or false implication had arisen---Was not believable that complainant (father) would leave real murderer of his son and falsely involve accused in the case---Ocular account was fully corroborated by medical evidence---Hatchet recovered on the pointation of accused was found to be stained with human blood---Prosecution, in circumstances had proved its case against accused beyond any shadow of doubt through independent eye-witness, corroborated by medical evidence, positive report of Serologist regarding human blood on the hatchet and the motive---Only mitigating circumstance which had been argued on behalf of accused was that on the day of making statement under S.342, Cr.P.C., accused had given his age 70/71 years, which was no ground to award lesser sentence, because accused became fugitive from law for about 21 days after registration of the case---Even otherwise age of accused had been mentioned as 55/56 years---No mitigating circumstance being available in favour of accused, his appeal against his conviction and sentence, was dismissed and his death sentence was confirmed.

Rao Atif Nawaz for Appellant.

Mehr Muhammad Saleem for the State.

Date of hearing: 20th January, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1131 #

2006 P Cr. L J 1131

[Lahore]

Before Syed Sajjad Hussain Shah, J

SALAMAT ALI alias BHUTTA----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1937/B of 2006, decided on 13th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324 & 34---Bail, grant of---Further inquiry---Accused though was stated to be armed with fire-arm, but he had not been attributed any injury to deceased or to any prosecution witness---Fatal shot was attributed to his co-accused---As per allegation, 'motive was not attributed to accused---No overt act had been ascribed to accused, except that of ineffective firing---Though 222 rifle had been recovered from accused, but during investigation no empty of said weapon was found at the place of occurrence---Question regarding vicarious liability of accused would be determined at the trial---Case against accused, in circumstances called for further inquiry into his guilt within purview of subsection (2) of S.497, Cr.P.C.---Accused was behind the bars and no more required for further investigation---Accused was admitted to bail.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585; Yaroo v. The State 2004 SCMR 864; Faraz Akram v. The State 1999 SCMR 1360; Muhammad Sadiq and others v. The State 1980 SCMR 203; Rana Muhammad Safdar v. Gulzar Ali alias Papoo and another 1999 PCr.LJ 1; Allah Ditta and others v. The State 1990 SCMR 307; Ghulam Nabi v. The State 1996 SCMR 1023; Abdul Malik v. The State 2000 PCr.LJ 1816 and Muhammad Sadiq v. Sadiq and others PLD 1973 Quetta 4 ref.

Naveed Inayat Malik for Petitioner.

Rai Bashir Ahmad for the Complainant.

Maqbool Ahmad Qureshi for the State.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1133 #

2006 P Cr. L J 1133

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD ASHRAF----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.699/B of 2006, decided on 12th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324 & 34---Bail, grant of---Accused earlier applied for his post-arrest bail which was turned clown by the Trial Court---Bail application subsequently filed by accused was withdrawn, direction, however, was issued by High Court to the' Trial Court to conclude trial within three months, but same was not complied with by the Trial Court---Explanation given by the Trial Court, was more like an apology which was acknowledgement of its total helplessness in regulating proceedings in a criminal trial---Police opinion showed that, injury had been caused accidentally to the injured---Accused was in jail for the last sixteen months---Culpability of accused in view of the findings of Investigating Officer, would be determined at the time of trial---Complainant was deliberately avoiding to produce his evidence and was deploying various obstruction ploys---Accused was admitted to bail, in circumstances.

Gohar Razzaq Awan for Petitioner.

Ms. Tahira Sultan for the State.

Muhammad Iqbal, A.S.-I., Police Station Kotwali, District Jhang with police file.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1135 #

2006 P Cr. L J 1135

[Lahore]

Before Syed Sajjad Hussain Shah, J

SAJID alias SAJU and another-Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.1617 of 2002, decided on 30th March, 2006.

Penal Code (XLV of 1860)---

----Ss. 302 & 34---Appreciation of evidence---Prosecution witnesses were not present at the time of occurrence; they rushed towards the spot after hearing fire-shot---Said witnesses stated that while they were moving towards the spot, they saw three persons running towards the east, but no description of said running persons was given by them---One of prosecution witnesses in his cross-examination was unable to give time, date and year of incident and all of them had not alleged that persons seen by them were having arms or not---Accused being not known to the eye-witnesses earlier, it was imperative duty of Investigating Officer to have conducted identification parade of accused, but no step in that direction was taken---Such fact alone was fatal to prosecution case as test identification parade was absolutely necessary when accused were not known to eye-witnesses before--Prosecution witness who deposed regarding altercation with deceased, had not even identified accused before the Trial Court as the person with whom deceased had altercation---Said witness during course of cross-examination, had also admitted that accused were not previously known to him---When accused were not previously known to prosecution witnesses; their descriptions had not been given in F.I.R.; prosecution did not make any attempt to get them identified through an identification parade or through any other source and prosecution witnesses did not exactly specify that out of three accused who was the one who fired at deceased---To bring home the guilt to accused, legal evidence was required to be of incriminating nature to connect him with commission of crime beyond shadow of doubt---All pieces of evidence produced by prosecution, were defective---Prosecution having failed to substantiate its case against accused beyond shadow of doubt, they were acquitted of the charges by giving them benefit of doubt.

M. Inayat Ullah Khan Cheema for Appellants.

Abdul Qayyum Anjam for the State.

Dates of hearing: 29th and 30th March, 2006.

2006 P Cr. L J 1158

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

MUHAMMAD RIAZ and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.623 of 2000 and Murder Reference No.76 of 2001, heard on 17th January, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b), 109 & 34---Appreciation of evidence---Ocular account was fully corroborated by medical evidence---Accused had motive to kill deceased as he had abducted their sister---Both accused on the day of occurrence, while armed with hatchets, caused injuries on the vital parts of the body of deceased which resulted into his death---Blood-stained hatchet and blood-stained clothes recovered on pointation of accused were sent to Chemical Examiner and according to report of Chemical Examiner and Serologist, hatchet and clothes were stained with human blood--Incident was a broad-daylight occurrence and parties were known to each other----Accused persons could not prove that at the time of occurrence their age was less than eighteen years, whereas it had been established that ages of accused persons were more than 20 years at that time---Accused also could not prove that it was a matter of family honour---Accused had never seen their sister on the day of occurrence or prior to occurrence in illicit relationship with deceased, as she had already died 3-1/2 years prior to occurrence---No question of action or re-action of accused which he chose to do on such occasion could arise---No mitigating circumstances being available in favour of accused their appeal was dismissed and their death sentence confirmed.

Altaf Ibrahim Qureshi for Appellants.

Waseem Khan for the State.

Date of hearing: 17th January, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1163 #

2006 P Cr. L J 1163

[Lahore]

Before Muhammad Farrukh Mahmud and Sardar Muhammad Aslam, JJ

MUHAMMAD HAYAT alias MEHDI----Appellant

Versus

THE STATE----Respondent

Criminal Appeals Nos.344, 351, Criminal Revision No.243 and Murder Reference No.261 of 1999, heard on 12th April, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 324---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Matter was reported to police promptly---Both prosecution witnesses, though were closely related to deceased, but they had corroborated each other on all material points as far as roles of accused persons were concerned---Nothing was on record to reveal that said witnesses had any previous animus or grudge against accused---Statements of said witnesses also found support from the statement of injured prosecution witness whose presence could not be denied---Statement of the injured witness was of corroborative value and had established time and place of occurrence as well as presence of witnesses at the spot---Statements of prosecution witnesses were also supported by medical evidence and co-roborated by the factum of recovery of weapons from both accused which wedded with the empties recovered from the scene of occurrence---Motive was a far-fetched one and no direct evidence was available in support of it---Acquittal of rest of accused would not benefit accused as allegation levelled against them were not supported by medical evidence and the Trial Court had acquitted them by extending benefit of doubt---Prosecution had successfully proved its case through ocular account, which was supported by medical evidence and corroborative circumstances like lodging of F.I.R. without delay and recovery of weapon which tallied with empties recovered---Trial Court while convicting one of accused for offence under S.302(b), P.P.C. sentenced him to imprisonment for life, while it had sentenced other to death---No cogent reasons had been advanced by the Trial Court as to why both accused were not treated equally while passing sentence---Both accused had effected one fire each on deceased and none of them had repeated same---Motive though was set in F.I.R., but no direct evidence was produced to prove the same---While maintaining conviction of both the accused, sentence of death awarded to one of the accused was reduced to imprisonment for life---Benefit of S.382-B, Cr.P.C. was extended to both accused---Sentences awarded to accused persons would run concurrently.

Saleem Shad (Defence Counsel appointed by the Court) and Muhammad Faisal Malik for Appellant.

Ms. Sofia Sethi for the Complainant.

Ms. Tehseen Irfan for the State.

Date of hearing: 12th April, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1237 #

2006 P Cr. L J 1237

[Lahore]

Before Sardar Muhammad Aslam and Syed Shabbar Raza Rizvi, JJ

DILDAR HUSSAIN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.815 of 2005, decided on 29th November, 2005.

Control of Narcotic Substances Act (XXV of 1997)-, ---S. 9(c)-Appreciation of evidence---Both prosecution witnesses who allegedly had witnessed recovery had not indicated the time when raid was conducted and recovery was effected---Evidence of prosecution was not trustworthy---Time of occurrence was not discernible with exactitude from the record, which had demolished the very foundation of prosecution case---Crime property i.e. narcotics, was not produced when statement of prosecution witness was recorded in the Court---Serious doubts were found in prosecution case---Impugned judgment was set aside and accused was acquitted of the charge and was released.

Tayyba Zamir Qureshi for Appellant.

Maqbool Ahmad Qureshi for the State.

Date of hearing: 29th November, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1260 #

2006 P Cr. L J 1260

[Lahore]

Before Muhammad Muzammal Khan, J

SHABBIR HUSSAIN alias PAPU----Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION BUMBANWALA DISTRICT SIALKOT and 3 others----Respondents

Writ Petition No.544 of 2005, decided on 18th April, 2006.

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.---Complainant, who was brother-in-law of alleged abductee, had himself mentioned in F.I.R. the age of alleged abductee as 17 years---Alleged abductee in her affidavit had stated that no body had abducted her; that her age was 19 years; that she entered into a tie of marriage with petitioner/accused out of her own volition---Girl had personally appeared before the Court and supported stance of petitioner/accused---Alleged abductee had stated that her marriage was performed through registered Nikah Nama and that since then she was living with her husband/ petitioner/ accused---Under Islamic Law, a girl on attaining age of puberty would be deemed to have attained majority, which in Pakistan was about 13 years---Alleged abductee, who was major, appeared to be sensible from her appearance---Both spouses were living together for about 1-1/4 years---In view of respective claims of parties and Nikah Nama registered with Union Council, it appeared that there had been a lawful marriage union between accused and alleged abductee and they had not committed any cognizable offence---Law regarding marriage was settled to the effect that where two major Muslims of sound mind solemnized marriage by entering into a contract for procreation and legalization of. their children according to Muslim Family Laws Ordinance, 1961, no cognizable offence under Offence of Zina (Enforcement of Hudood) Ordinance, 1979 could be made out---Registration of criminal case against petitioner was apparently without commission of cognizable offence and was opted by police concerned, out of sheer misuse of process of law---Both constitutional petitions were accepted and F.I.R. was quashed.

Khalid Parvez and others v. The State PLD 1981 FSC 306; Muhammad Imtiaz and another v. The State PLD 1981 FSC 308; Arif Hussain and Azra Parween v. The State PLD 1982 FSC 42 and Muhammad Ramzan v. State PLD 1984 FSC 93 ref.

Mian Muhammad Bashir for Petitioner.

Muhammad Akbar Cheema for Respondents.

Ch. Muhammad Arshad for the State along with M. Aslam A.S.-I.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1263 #

2006 P Cr. L J 1263

[Lahore]

Before Sardar Muhammad Aslam, J

BARKHURDA R----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.9264/B of 2005, decided on 19th January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10 & 16---Police Order (22 of 2002), Art.18(6)---Bail, refusal of---Accused had been implicated by the victim in her statement under S.164, Cr.P.C. in the commission of offence of Zina---Finding of Investigating Officer declaring accused innocent, had no bearing as High Court had directed D.I.-G. to hear abductee and pass an order for transfer of investigation---Matter was referred to Standing Board under Art.18(6) of Police Order, 2002 and subsequent Investigating Officer, after securing permission from Magistrate arrested petitioner and found him guilty---Challan had been submitted---Order of subsequent investigation was also challenged through constitutional petition by accused, which was dismissed---Accused had prima facie committed an offence which fell within the prohibitory clause of S.497, Cr.P.C.---Bail petition, was dismissed, in circumstances.

Rai Bashir Ahmad.for Petitioner.

Sardar Zahid Gul Khan with Khan Muhammad A.S.-I. for the State.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1265 #

2006 P Cr. L J 1265

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

SHABBIR alias MOCHHA and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.373-J of 2003, 1675 of 2002, Criminal Revision No.1075 of 2002 and Murder Reference No.82-T of 2002, heard on 27th April, 2006.

Penal Code (XLV of 1860)---

----Ss. 365-A, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Appreciation of evidence---Sentence, reduction in---Occurrence had taken place in day-light---Prosecution witnesses did not know accused previously and had no enmity with them to falsely implicate them in the case---Accused were correctly identified by prosecution witnesses during identification parade supervised by Judicial Magistrate---No contradiction was found in the statements of prosecution witnesses regarding place, time and manner in which occurrence had taken place regarding abduction of three prosecution witnesses---All witnesses had admitted during cross-examination that they did not know accused previously---No enmity or grudge was found with prosecution witnesses to falsely implicate accused---Identification parades of three criminal cases held separately in which witnesses had also correctly identified accused-- Abductees had also correctly identified accused in the case---No question of mis-identity of. accused arose, it was only a case of abduction for extracting ransom and prosecution witnesses had successfully proved that accused after abduction had put them in illegal confinement and also demanded ransom amount---Payment of ransom amount had also been proved through statements of prosecution witnesses beyond any shadow of doubt and subsequently an amount of Rs.2,00,000 was also recovered from possession of accused---Such huge amount could not have been planted upon accused to falsely involve him in 'abduction case, when said amount was to be kept as case properly for a long period---Prosecution in circumstances had been able to prove case against accused beyond any shadow of doubt and convictions recorded under Ss.148, 365-A, P.P.C. and under S.7(e) of Anti-Terrorism Act, 1997 read with S.149, P.P.C., were maintained---Three years sentence awarded to accused under S.148, P.P.C., was maintained, but in view of facts and circumstances of case death sentence awarded to four accused persons for the abduction of three persons, was found harsh---Death sentence was converted to life imprisonment, but direction regarding payment of compensation amount and undergoing of six months' S.I. each in default of payment, was maintained.

Ashfaq Ahmad Ch. for Appellants (in Criminal Appeal No.1675 of 2002).

S.D. Qureshi for Appellants (in Criminal Appeal No.373/J of 2003) at State expense.

Muhammad Qamar-uz-Zaman for the Complainant (ii Criminal Revision No.1075 of 2002).

Ch. Ghulam Hussain, Special Prosecutor A.T.A. for the State.

Date of hearing: 27th April, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1275 #

2006 P Cr. L J 1275

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD YASIN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.8700/B of 2005, decided on 20th January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Bail, refusal of---Victim girl had supported prosecution story and prosecution witnesses mentioned in F.I.R. had also corroborated same in their statements under S.161, Cr.P.C.---No evidence was on record to establish defence of accused that direct enmity existed between hirn and complainant---Prima facie sufficient material was available on record to connect accused with commission of offence---Court, at bail stage, was merely to examine material on file to see whether, prima facie, evidence was sufficient to connect accused with the crime---Accused was found involved in a heinous offence which was covered with prohibition as contained in S.497, Cr.P.C.---Accused, who had been absconding in the past, was not entitled for any concession---Bail petition having no force was dismissed.

Tanvir Ahmad v. Muhammad Sadiq PLD 1994 SC 88; Shah Zaman v. State PLD 1994 SC 65 and Faqir Hussain v. Asad Ali Khan 2003 PCr.LJ 518 ref.

Ch. M.S. Shad for Petitioner.

Bashir Abbas Khan with M. Tariq, A.S.-I. for the Complainant.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1277 #

2006 P Cr. L J 1277

[Lahore]

Before Muhammad Muzammal Khan, J

FAISAL NAEEM SARWAR----Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION DIJKOT DISTRICT FAISALABAD and 7 others----Respondents

Writ Petition No.3394 of 2006, decided on 25th April, 2006.

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

----S. 11---Criminal Procedure Code (V of 1898), 5.154---Muslim Family Laws Ordinance (VIII of 1961), S.5---F.I.R., registration of---F.I.R. and birth certificate showing girl to be major/sui juris---Affidavit of girl that nobody had abducted her, rather she on her own had left the house of her mother---Nikahnama registered with Union Council showing existence of lawful marriage between parties, who were living together---Registration of F.I.R. was without commission of cognizable offence and sheer misuse of process of law---Principles.

Khalid Pervez and others v. The State PLD 1981 FSC 306; Muhammad Imtiaz and another v. The State PLD 1981 FSC 308; Arif Hussain and Azra Parween v. State PLD 1982 FSC 42 and Muhammad Ramzan v. State PLD 1984 FSC 93 ref.

Nazir Ahmad Ghazi for Petitioner.

Ch. Muhammad Arshad for the State along with M. Ashraf Sub-Inspector.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1280 #

2006 P Cr. L J 1280

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MADAD KHAN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.7565/B of 2005, decided on 20th January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324/34---Bail, refusal of---Fire shot by accused had caused injuries on the right elbow of complainant, but it could not be ignored that he repeated fires 2/3 times and subsequent fires had missed their target---Accused, in circumstances, had the intention to kill complainant---Weapon of offence had also been recovered---Single person had been named responsible of causing injury to complainant---Nearly one year had passed, but the trial had not concluded---Bail petition was dismissed with direction that Trial Court must conclude the trial within specified period in view of peculiar facts and circumstances of the case.

Malik Munsif Awan for Petitioner.

Riaz A.S.-I. with record for the State.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1281 #

2006 P Cr. L J 1281

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD AKRAM and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeals 'Nos.1131, 1239 and Murder Reference No.663 of 2000, heard on 26th April, 2006.

(a) Penal Code (XLV of 1860)

----S. 302(b)-Appreciation of evidence---F.I.R. was lodged without any delay in which details of incident had been duly mentioned regarding the roles of accused played by them during incident---Factum of prompt registration of F.I.R. after the incident was further supplemented by medical evidence---Prosecution had hot caused inordinate delay for concocting a story to falsely implicate accused in the case---Presence of both eye-witnesses at the spot was established without any doubt and said witnesses had made consistent statements regarding participation of accused in incident, manner in which occurrence had taken place and the nature of injuries caused by both accused to deceased---Both prosecution witnesses were subjected to lengthy cross-examination, but defence failed to cause any dent in their statements---Witnesses were natural and independent while accused were also closely related to them and there was no reason to falsely implicate accused in the case by complainant party by letting off real culprits---Ocular account had established that accused, while armed with mausers had appeared at the spot and-fired at the persons of four deceased resulting in their death---Ocular account was fully supported by medical evidence regarding nature of weapons used during incident and receiving of fire-arm injuries---Even both eye-witnesses remained consistent regarding locales of injuries sustained by four deceased---Said witnesses were independent having no motive to falsely implicate accused in the case-Prosecution, in circumstances, had been able to bring home charge of Qatl-e-Amd to both the accused beyond any shadow of doubt---No mitigating circumstances existed to withhold normal penalty of death provided for committing Qatl-e-Amd---Both accused did not deserve any leniency and death sentence awarded to thern by the Trial Court was confirmed.

1998 PCr.LJ 1110; 2006 PCr.LJ 497 and Sultan Khan v. Sher Khan and others PLD 1991 SC 520 ref.

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

----S. 417---Penal Code (XLV of 1860), Ss.302(2) & 34---Appeal against acquittal---Trial Court had given valid reasons for acquittal of two co-accused---Co-accused were allegedly attributed only ineffective firing and that too while coming to the spot after main occurrence had already taken place and they had not taken part therein---No empty was recovered from the spot to supplement the role of ineffective firing attributed to said co-accused---Co-accused were also close relatives of main accused and were residing in the same vicinity---Prosecution had failed to adduce any evidence that said co-accused had any prior intimacy with convicts for the commission of that occurrence---No illegality or material irregularity had been committed by the Trial Court in acquitting said co-accused---Chance of false implication of said co-accused being relatives of main accused, could not be ruled out---Appeal against acquittal, was dismissed, in circumstances.

Syed Zahid Hussain Bokhari for Appellants (in Criminal Appeal No.1131 of 2000).

S.H. Shahzad Azmat for the Complainant and Appellant (in Criminal Appeal No.1239 of 2000).

S. D. Qureshi for the State (in Murder Reference No.663 of 2000).

Ijaz Ahmad Bajwa for the State (in Criminal Appeal No.1131 of 2000).

Mrs. Tehsin Irfan for the State (in Criminal Appeal No.1239 of 2000).

Date of hearing: 26th April, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1325 #

2006 P Cr. L J 1325

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

MASOOD AHMAD----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.1943 of 2000 and Murder Reference No.183 of 2001, heard on 24th April, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b) &34---Appreciation of evidence---Both complainant and other prosecution witness were closely related inter se and with the deceased, but mere close relationship of witnesses was not sufficient to term them as interested witnesses unless it was proved that they had motive to falsely implicate the accused---No hard and fast rule existed to the effect that if prosecution had produced uninterested witnesses, their statements should be accepted without scrutiny of the same---Each case had to be decided on its own peculiar circumstances---Mere gravity of the offence, was not sufficient to convict accused involved in the offence---Both witnesses having admitted that they had falsely implicated co-accused on asking of Member, Provincial Assembly, it was very unsafe to rely upon said witnesses for maintaining conviction of accused in a murder case---Even otherwise complainant had failed to explain his presence at the spot sufficiently---Story of taking place of occurrence in a room had been belied by site plan---Place of occurrence and the manner in which occurrence had taken place was not fully explained by both the eye-witnesses---Statement of another prosecution witness clearly suggested that he was not present at the spot and he had failed to show any reason for being present in the house in question at the time of occurrence, when he was usually out for labour at such time---Both eye-witnesses were proved to be not present at the spot and had not witnessed the occurrence and they were named as such on account of close relationship with the deceased---F.I.R. was not lodged with promptitude, but was lodged after preliminary investigation with due deliberation, which had lost its efficacy---Doctor, as prosecution witness, had conceded that F.I.R. was not mentioned on the Inquest Report ---Inference could be drawn, in circumstances that even uptil then formal F.I.R. was not registered and prosecution story was concocted afterwards on suspicion---Medical evidence was not found in conformity with the ocular account---Medical evidence had shown that occurrence had not taken place in the manner narrated by prosecution---Recovery of pistol from accused was inconsequential as no empty was recovered from the spot and mere recovery of pistol from the spot was not sufficient to hold that said weapon was used by accused in the incident---Prosecution having failed to prove its case against accused beyond reasonable doubt, his conviction and sentence were set aside and he was acquitted of the charges by extending him benefit of doubt.

A.G. Tariq Ch. for Appellant.

Ashfaq Ahmad Chaudhry for the State (in Murder Reference No.183 of 2001).

M. Saleem Shad for the State (in Criminal Appeal No.1943 of 2000).

Date of hearing: 24th April, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1333 #

2006 P Cr. L J 1333

[Lahore]

Before Khawaja Muhammad Sharif and M.A. Shahid Siddiqui, JJ

ZUBAIR AHMAD----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.997 of 2001, heard on 28th February, 2006.

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

----S. 302(b)/34---Appreciation of evidence---Accused though was nominated by complainant in F.I.R. along with six others, but no specific role was ascribed to him---During investigation of case prosecution witnesses had raised plea of innocence for accused---Two prosecution witnesses were related to deceased---Large number of persons were implicated in case, but during investigation of the case, it transpired that matter was not reported truly---Prosecution witnesses had given a clean chit to all those who were of their Bradari or caste, but had deposed only against those who were not of their caste---Such testimony of prosecution witnesses could not be relied upon especially in a case involving capital punishment---Recovery of .222 bore rifle, after a period of more than three years, was of no consequence, especially because it had never been sent to Forensic Science Laboratory for comparison with the empties recovered from the spot---In the absence of the report of Forensic Science Laboratory, recovery of rifle was of no consequence---Cross-examination had transpired that deceased had enmity with other persons as well, but prosecution had not been able to show as to why accused participated in the occurrence-Being fugitive from law alone was not sufficient to sustain conviction of accused---Prosecution having failed to bring home charge against accused, impugned order passed by the Trial Court was set aside and accused was acquitted.

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

----Ss. 302(b)134---Fugitive from law--- Being fugitive from law alone was not sufficient to sustain conviction of accused.

Khalid Javaid Saleemi for Appellant.

S.D. Qureshi for the State.

Date of hearing: 28th February, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1337 #

2006 P Cr. L J 1337

[Lahore]

Before Khawaja Muhammad Sharif and Mian Muhammad Najam-uz-Zaman, JJ

MUHAMMAD SIDDIQUE and 2 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.921 and Murder Reference No.414 of 2000, decided on 7th July, 2005.

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

----Ss. 302(b), 324, 337-D, 337-F(ii), 148 & 149---Appreciation of evidence---Both co-accused were not known to the eye-witnesses and names of said co-accused did not figure anywhere in the statements of said witnesses recorded under S.161, Cr.P.C.---Said co-accused were not put to the test of identification after their arrest and for the first time after three years of said occurrence co-accused were identified by said witnesses before the Trial Court---Identification of accused in the Court, after such a long time was not free of doubt because at the relevant time, ages of both said eye-witnesses were 9 and 7 years only---Trial Court had also disbelieved prosecution evidence to the extent of extra-judicial confession of those accused and recovery of incriminating articles at their instance---Benefit of doubt had been extended to co-accused---Appeal to their extent was accepted and their conviction and sentence was set aside and they were acquitted of the charge and were released accordingly.

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

---Ss. 302(b), 324, 337-D, 337-F(ii), 148 & 149---Appreciation of evidence---Presence of both the eye-witnesses at the spot who had received injuries during occurrence, stood established from the record---Said eye-witnesses while making statements under S.161, Cr.P.C. on the day of occurrence, had specifically nominated accused who was known to witnesses prior to occurrence---Both eye-witnesses, while supporting prosecution case narrated circumstances before the Trial Court, mode and manner under which accused along with other co-accused had committed murder of deceased and caused injuries to the eyewitnesses---Medical evidence also supported ocular account---Eyewitnesses, who were minor children, had no reason to falsely implicate accused against whom none of them had any enmity or grudge---Both the eye-witnesses were innocent, trustworthy and truthful and statements of those witnesses were impressive, reliable, which could be relied upon to uphold conviction and sentence, of accused---Appeal to the extent of accused, stood dismissed and his death sentence was confirmed.

Gohar Razzaq Awan for Appellant.

Ibrar Majal for the Complainant.

Arif Ali Hazoor for the State.

Date of hearing: 7th July, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1343 #

2006 P Cr. L J 1343

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

TANVEER HUSSAIN alias LUDU----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.107/J and Murder Reference No.285 of 2000, heard on 24th April, 2006.

Penal Code (XLV of 1860)---

---Ss. 302, 337-J & 380---Appreciation of evidence---No witness had been produced by prosecution who had seen the accused mixing some poisonous material with the biscuits in question---No efforts were made by prosecution for collecting evidence regarding purchase of biscuits and making those poisonous by the accused---Taking of biscuits could not be said with certainty to be the only reason resulting into unconsciousness of witnesses as well as deceased---Prosecution evidence was not found sufficient to connect accused with commission of crime---Medical evidence also did not disclose with certainty that death of deceased had occurred due to the taking of meal or due to taking of biscuits---Report of Chemical Examiner was also not sufficient to declare that death of deceased occurred due to some poison---Complainant had claimed in F.I.R. that accused had taken away an amount of Rs.12,000, gold ornaments, but no one had seen accused while taking away such articles---Said gold ornaments and amount were not recovered from the possession of accused---Offensive weapon/gun was also not recovered from the place which was in exclusive possession of accused and it was only in his knowledge that said weapon had been concealed there---No public witness had been joined in recovery of said weapon and both police officials had admitted that no efforts were made for joining public witnesses though there were some shops at the distance of one Killa from the place of recovery---Reliance upon the recovery of rifle as a corroborative piece of evidence to the ocular . account, which even otherwise had already been found insufficient to connect accused with the commission of alleged crime was not safe in circumstances---Prosecution, in circumstances, had failed to prove case against accused beyond any shadow of doubt---Impugned judgment passed by the Trial Court, was set aside and accused was acquitted of the charges and was set at liberty.

Kh. Faheem Ijaz for Appellant.

Malik Muhammad Suleman Awan for the State (in Murder Reference No.285 of 2000).

M. Saleem Shad for the State (in Criminal Appeal No.107/J of 2000).

Date of hearing: 24th April, 2006.

2006 P Cr. L J 1406

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD ASGHAR----Appellant

Versus

ADDITIONAL SESSIONS JUDGE and others----Respondents

Writ Petition No.1194 of 2006, decided on 30th May, 2006.

Penal Code (XLV of 1860)---

----Ss. 379, 440, 506, 148 & 149---Constitution of Pakistan (1973), Art.199---Constitutional petition---Summoning of accused, on complaint under Ss.379, 440, 506, 148 & 149, P.P.C.--Magistrate summoned accused to face trial for offences mentioned in the complaint---Order of Magistrate was set aside by the Additional Sessions Judge and case was remanded to Trial Court/Magistrate for fresh decision---Validity---Magistrate could proceed against accused persons and summon them, but it would not mean that Magistrate/Trial Court should summon accused without looking into available evidence---Court was to go through evidence, apply its mind and then proceed against accused in case any offence was made out---Court was not supposed to summon accused for all offences mentioned on the face of complaint without application of mind---Statements of prosecution witnesses, in the present case, were divergent and in any case no offence under Ss.148 & 149, P.P.C. was made out, but even then Trial Court/Magistrate summoned accused person to face trial---Additional Sessions Judge, in circumstances, had rightly remanded case to Trial Court/Magistrate to re-appreciate evidence---Additional Sessions Judge, however, had wrongly directed the accused person to appear before Trial Court, as once order of summoning was set aside, then accused persons could not be termed as `accused' and their presence was not required before Trial Court; until and unless they were summoned to face trial---Order of Additional Sessions Judge .was modified by the High Court to the extent that accused persons need not appear before Trial Court until and unless summoned by it.

Maqbool Ahmad and another v. The State and another 1997 PCr.LJ 1074 and Shamim v. The State and Muhammad Bashir PLD 1966 SC 178 ref.

Mrs. Samina Qureshi for Petitioner.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1431 #

2006 P Cr. L J 1431

[Lahore]

Before Ali Nawaz Chowhan and Umar Ata Bandial, JJ

MUHAMMAD ASHRAF----Appellant

Versus

THE STATE----Respondent

Criminal Appeals Nos. 1806 and 1807 of 2002, heard on 24th January, 2006.

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

----Ss. 9(B)(c) & 18---Appreciation of evidence---Sentence, reduction in---Two F.I.Rs. were registered against accused in same Police Station; in first F.I.R. it was alleged that accused was found in possession of 100 grams of Charas and 225 grams of opium and in second F.I.R., accused was found possessing 1090 grams Charas and 375 grams opium---In respect of first F.I.R. accused was sentenced to five years' R.I. with fine of Rs.10,000, whereas in case under second F.I.R., accused was sentenced to life imprisonment with fine of Rs.30,000---Entire prosecution evidence consisted of official witnesses---Witnesses reiained steadfast in their testimonies and their credibility also remained unshaken with respect to recovery of narcotics---No reason existed for false involvement of accused in the case---Where narcotics recovered, was not of a huge quantity, duty had been cast upon the Court to have it weighed in front of its own eyes, because a little difference in the weight could take case out of the ambit of one subsection to another of S.9 of Control of Narcotic Substances Act, 1997, Which would have a bearing on the quantum of sentence---Court, in circumstances was supposed to ensure that parcels it received were duly sealed---Office of Chemical Examiner was also to ensure likewise---Trial Court had ensured that they did not take the word of prosecution witnesses with respect to weight of narcotics as a gospel truth---Court, in the present case, had believed prosecution case with respect to the weight of narcotics recovered without verification of weight under its view---Conviction of accused in both cases appeared to be correct, but sentences awarded to accused were not in proportionate to recovery and was also not in accordance with usual punishments awarded by the Courts and same were harsh---Trial Court did not even bother to appreciate the rationale behind S.18 of Control of Narcotic Substances Act, 1997--Sentence in the case under first F.I.R. was reduced from five years' R.I. to two years' R.I. and fine from Rs.10,000 to Rs.2,000 and in case under second F.I.R. from life imprisonment to three years' R.I. and amount of fine was also reduced from Rs.30,000 to Rs.5,000 with benefit of S.382-B, Cr.P.C.

Syed Ehtesham Qadir Shah for Appellant.

Date of hearing: 24th January, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1450 #

2006 P Cr. L J 1450

[Lahore]

Before Syed Sajjad Hussain Shah, J

AHMAD SHER----Petitioner

Versus

THE STATE and another----Respondents

Criminal Revision No.328 of 2006, decided on 4th May, 2006.

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

----S. 7---Criminal Procedure Code (V of 1898), S.439---Determination Justice System Ordinance, 2000, provisions of having a medical report was mandatory in nature and it was obligatory for the Trial Court to have a medical report to determine the age of accused for the purposes of Juvenile Justice System Ordinance, 2000---Trial Court, in circumstances, was not justified in not getting a report from Medical Board for determination of age of accused, especially when accused was willing to have an ossification test as contemplated in Juvenile Justice System Ordinance, 2000---Order passed by Trial Court was set aside and case was remitted for decision afresh, in accordance with law after having a report from Medical Board with regard to age of accused.

Mushtaq Ahmad Mohal for Petitioner.

Syed Khalid Hassan Shah for Respondent.

Ch. Amir Muhammad for the State.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1455 #

2006 P Cr. L J 1455

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

GHULAM ABBAS----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.1076 and Criminal Revision No.548 of 2005, decided on 23rd November, 2005.

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

----S. 9(b)---Appreciation of evidence---Alleged recovery of narcotic substance from possession of accused had also been witnessed by a police officer who had been given up by prosecution as unnecessary---Stand taken by said Police Officer during investigation whereby he discharged accused declaring him innocent, had created dent in prosecution's case against accused---Two witnesses produced by prosecution had categorically deposed about innocence of accused, which had also seriously reacted against allegations levelled by prosecution against accused---Both recovery witnesses who were police officers, had made contradictory statements regarding the shape in which Charas had been recovered---Such major contradictions had rendered allegation against accused to be quite doubtful---State counsel, had conceded that after a thorough investigation of case State had found through its investigation agency that accused was innocent and his name was placed in Column No.2 of the Challan---State Counsel had maintained that accused was innocent---Prosecution having failed to prove case against accused beyond reasonable doubt, his conviction and sentence recorded by Trial Court, were set aside and he was acquitted of the charge and was released.

Naveed Asif v. The State PLD 1988 SC 99; Ali and others v. The Crown PLD 1954 Lah. 183 and Akhtar Hayat and another v. The State and others PLD 2003 Lah. 71 ref.

Zafar Iqbal Chohan for Appellant (in Criminal Appeal No.1076 of 2005).

Raja Akhtar Nawaz for Petitioner (in Criminal Revision No.548 of 2005).

Raja Akhtar Nawaz for the State (in Criminal Appeal No.1076 of 2005).

Zafar Iqbal Chohan for Respondent (in Criminal Revision No.548 of 2005).

Date of hearing: 23rd November, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1459 #

2006 P Cr. L J 1459

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD RIAZ---Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.574/B of 2006, decided on 15th May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302 & 109---Bail, grant of---Counsel for accused had pressed bail application mainly on ground of ill-health of accused---Counsel submitted that accused was seriously ill and his treatment in jail hospital was not possible---Doctor to whom accused was referred to be medically examined, had reported that accused, who was suffering from "Cholangiocarcinoma" and was operated at Hospital, needed immediate hospitalization, blood transfusion and investigations for further management---Doctor had further opined that in view of precarious state of health of accused, his. further incarceration will only add to his misery and affliction and would be absolutely catastrophic for him---Accused was admitted to bail, in circumstances.

Masood Mirza for Petitioner.

Malik Muhammad Akram Khan Awan for the Complainant.

Ms. Raeesa Sarwat for the State.

Dr. Haroon Majeed Dar, Assistant Professor, Department of Surgery, Sheikh Zayed Hospital, Lahore in person.

Muhammad Ashraf A.S.-I. Police Station Phularwan District Sargodha with record.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1462 #

2006 P Cr. L J 1462

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD IMRAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.724 and Murder Reference No.289 of 2001, decided on 21st November, 2005.

Penal Code (XLV of 1860)---

-- S. 302(b)---Appreciation of evidence---Sentence, reduction in---F.I.R. in the case was promptly lodged after twenty minutes of the occurrence in which accused was nominated to have fired twice at the deceased---Prosecution witnesses who had furnished ocular account, had no previous enmity or grudge to falsely implicate accused in the case---Place of occurrence, time of occurrence and commission of offence with pistol by accused had not been denied by accused, but he had taken plea of grave and sudden provocation during cross-examination on prosecution witnesses and also in his statement recorded under S.342, Cr.P.C., but said plea was not borne out from the record---Prosecution had been able to bring home guilt to accused beyond any shadow of doubt---Prosecution, however, had failed to prove motive against accused and accused was proved to be of youth age at the time of incident---What had happened immediately before the occurrence resulting into commission of the same, had remained in mystery---Possibility of commission of occurrence due to family honour could not be ruled out---Accused though had been able to prove that it was grave provocation, but had not been able to prove that it was sudden---Discretion in the case could be exercised by reducing sentence of death to imprisonment for life---Maintaining conviction of accused under S.302(b), P.P.C. death sentence awarded to accused by the Trial Court was converted into imprisonment for life with benefit of S.382-B, Cr.P.C. accordingly.

Ghulam Abbas v. Mazhar Abbas and another PLD 1991 SC 1059 ref.

M.A. Zafar and Abdul Sattar Khan for Appellant.

Mushtaq Ahmad Chaudhry for the Complainant.

Malik Suleman Awan and Mirza Abdullah Baig for the State.

Dates of hearing: 17th.and 21st November, 2005.

2006 P Cr: L J 1483

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD AMEER and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.1145, Murder Reference No.423 and Criminal Revision No.607 of 2001, decided on 10th May, 2006.

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

----Ss. 302(b), 324, 337-A(ii) & 337-F(i)---Criminal Procedure Code (V of 1898), S.345(2)---Appreciatiop of evidence---Compromise between the parties---F.I.R. was promptly lodged---Names of accused persons along with weapons used by them and manner in which occurrence had taken place, was got duly incorporated in F.I.R.---Complainant and other eye-witness, had received injuries during incident as well---Locale of injuries on the persons of deceased and both injured prosecution witnesses, had supported ocular account---Presence of both eye-witnesses at the spot stood established beyond any shadow of doubt and both remained consistent regarding the times, place and the manner in which occurrence had taken place---Both said eye-witnesses were closely related to accused persons---No previous ill-will or enmity existed between the parties---In view of close relationship between parties, there was no reason to declare both prosecution witnesses as interested witnesses being father and brother of the deceased---Incident was daylight occurrence, which had discarded question of misidentity of accused---No reason existed for false implication of accused by letting off the real culprits---Ocular account furnished by prosecution witnesses was trustworthy and confidence-inspiring---Recovery of wooden Ballas (offensive weapon) from accused was inconsequential as same were not stained with blood, but that alone was not sufficient to exonerate accused from commission of the crime--Even motive, set up by prosecution was found insufficient for committing offence in a pre--planned manner, which appeared to have taken place merely due to some matrimonial dispute between prosecution witness and his wife who was sister of accused persons---Since both injured, while appearing in the Court had forgiven and pardoned both accused for causing injuries to them, by accepting said compromise, both accused were acquitted of the charges under Ss.324, 337-A(ii) & 337-F(i), P.P.C.---Appeal to the extent of one of accused was partly accepted.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S.345(2)---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Co-accused who was sentenced to death under S.302(b), P.P.C. for causing death of deceased, was survived by the widow, four minor children besides his parents---Parents of deceased had effected compromise with said co-accused, but his widow along with four minor children had not effected compromise and had not pardoned co-accused who had committed Qatl-i-Amd of her husband---Compromise regarding offence under S.302(b), P.P.C., was not complete, in circumstances and such partial compromise, could not be given effect to for acquittal of co-accused from charge under S.302(b), P.P.C.---Said co-accused had caused single blow with wooden Balla on the head of deceased which proved fatal---Conviction of co-accused under S.302(b), P.P.C. recorded against him was maintained---Occurrence, had taken place at the spur of moment and it was not a cold-blooded murder---Possibility could not be ruled out that occurrence had taken place as a result of provocation given to accused party by complainant party itself---Even otherwise co-accused had only used Balla for causing a single blow, which was not a lethal weapon and was easily available---Moreover, partial compromise had been effected by parents of deceased, who were major legal heirs of deceased---Such could be a mitigating circumstance for awarding lesser sentence---Death sentence awarded to co-accused, by the Trial Court, was not warranted and same was converted to imprisonment for life in peculiar facts and circumstances of case---With said modification in quantum of sentence regarding co-accused, appeal to his extent was partly dismissed---Death sentence awarded to co - accused by the Trial Court, was not confirmed and Murder Reference was replied in negative.

Muhammad Arshad alias Papu v. Additional Sessions Judge and others PLD 1993 SC 547; Muhammad Ali and others v. State and others PLD 2004 Lah. 554; Bashir Ahmad v. The State and another 2004 SCMR 236; Niaz Ahmad v. The State PLD 2003 SC 635 and Muhammad Aslam v. Shaukat Ali alias Shauka 1997 SCMR 1307 ref.

Mian Muhammad Sikandar Hayat for Appellants (in Criminal Appeal No.1145 of 2001).

Muhammad Ali Khatana for the Complainant.

Kazim Iqbal Bhangoo for the State (in Murder Reference No.423 of 2001).

M. Aslam Malik for the State (in Criminal Appeal No.1145 of 2001).

Mrs. Tasneem Ameen for the State (in Criminal Revision No.607 of 2001).

Muhammad Aslam Sandhu for the Petitioner (in Criminal Revision No.607 of 2001).

Date of hearing: 10th May, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1493 #

2006 P Cr. L J 1493

[Lahore]

Before Khawaja Muhammad Sharif and M.A. Shahid Siddiqui, JJ

GUL MUHAMMAD----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.361-J and Murder Reference No.464 of 2000, decided on 19th December, 2005.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence--Statement of complainant regarding motive was also corroborated by prosecution witness---Motive alleged by prosecution, in circumstances, stood proved---Dead-body of deceased was recovered on the pointation of accused---Case was that of single accused and both parties being closely related inter se, there was no question of mistaken identity or substitution---Accused was real maternal nephew of complainant and complainant had no animus against accused for false implication--Real father would not leave actual culprit for murder of his son and involve innocent person specially his real maternal nephew----Other prosecution witness was neighbour of complainant; he was an independent witness and had no animosity, whatsoever, against the accused---Evidence of both said witnesses was confidence-inspiring which could be believed---Mere silence of accused while answering question put to him under S.342, Cr.P.C., was not sufficient to draw inference that he was insane----When accused wanted to bring his case within purview of 5.300, P.P.C. instead of under S.302(c), P.P.C., onus lay upon him to prove the same---Accused had failed to discharge said onus as he neither produced any defence witness nor placed on record any prescription about his ailment/insanity---Accused having murdered an innocent child of 5 years without any fault of the minor, no mitigating circumstance was found in his favour---Conviction and sentence recorded against accused by the Trial Court, were maintained in toto---Death sentence awarded to accused was confirmed and Murder Reference was answered in affirmative.

A.H. Masood for Appellant.

Saleem Shad for the State.

Date of hearing: 19th December, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1497 #

2006 P Cr. L J 1497

[Lahore]

Before M. Bilal Khan and Tariq Shamim, JJ

ZAFARULLAH alias BAOO----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.590 and Murder Reference No.216 of 2000, heard on 4th April, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Appreciation of evidence---Sentence, reduction in---F.I.R. having been lodged promptly without unnecessary loss of time, chance of deliberation and consultation with others to wrongly involve accused, was excluded---Details of occurrence having been elaborately explained in F.I.R., it was a credible document which got support from statement of complainant---Motive for occurrence as given in F.I.R. stood proved beyond any doubt---Witnesses of ocular account were unanimous in their stand and their statements were confidence-inspiring and did not suffer from any infirmity or material contradictions---Accused had not been able to establish any enmity with prosecution witnesses during cross-examination or by producing any evidence in his defence before Trial Court---Despite lengthy cross-examination, veracity of witnesses could not be shaken by the defence Slight variations in the statements of witnesses could not be termed to reduce intrinsic value of statements of said witnesses---Since said witnesses on all important points were unanimous, credibility had to be attached to said statements being true and worth-relying---No enmity between accused and complainant side had been proved, thus, there was no question of mala fide to falsely involve accused---Locale of injury was fully, supported by medical evidence and cause of death of deceased had also been conclusively determined by Doctor to be the injury attributed to accused by eye-witnesses---Further corroboration of eye-witness account had come from the recovery of blood-stained earth from the place of occurrence, empty of pistol, which was taken into possession, recovery of last-worn clothes of deceased and recovery of pistol from accused with five live bullets---Reports of Chemical Examiner, Forensic Science Laboratory and that of Serologist, had further corroborated medical evidence---Statement of deceased recorded wider S.161, Cr.P.C. though could not stricto senso be termed as a dying declaration, but the very fact that same was made by deceased in an injured condition in the hospital, in which he had specifically named the accused with specific role of firing at him with .30 bore pistol, carried weight---If any contradiction was found in the site plan, it would not discard witnesses or cause sufficient dent in prosecution case---Prosecution had proved its case beyond any reasonable doubt---Accused did not repeat the fire and what had actually transpired between accused and deceased immediately before actual occurrence, was not known---Fact that deceased died 14 days after occurrence on account of medical complications, had created some doubt regarding severity of sentence---Conviction of accused was maintained under S.302(b), P.P.C., but his death sentence was commuted to imprisonment for life---Benefit of S.382-B, Cr.P.C. was also granted to accused.

Naubahar v. The State 1999 SCMR 637; Qamar Ehsan v. The State 2004 PCr.LJ 47 and Shahzad Ahmad Khan v. The State 2004 PCr.LJ 320 ref, Ehtisham Qadir Shah for Appellant.

Sheikh Khalid Habib for the State.

Shoukat Rafique Bajwa for the Complainant.

Date of hearing: 4th April, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1506 #

2006 P Cr. L J 1506

[Lahore]

Before Ijaz Ahmad Chaudhry, J

UMAR USMAN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.9127/B of 2005, decided on 9th January, 2006.

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

---S. 497(2)-Penal Code (XLV of 1860), Ss.302, 324, 337-F(iii), 427, 109, 148 & 149---Bail, grant of---Further inquiry---Police record showed that accused had received four serious injuries on account of which he was unable to move and was hospitalized---Said injuries were not properly explained by complainant party which, prima facie, had cast some doubt on prosecution story regarding commission of occurrence in the manner narrated by the complainant---Even otherwise accused had been declared juvenile, who was allegedly aged about 17 years one month and 25 days at the time of incident---Accused had been declared juvenile whereupon his case had been separated---Recovery of weapon of offence from the possession of accused prima facie was also doubtful, as when he was unable to move according to the record of police after sustaining injuries, it was not possible for him to take weapon and conceal same in his house---Case of accused, in circumstances was of further inquiry and it appeared that complainant had not spoken the whole truth and, prima facie, he had concealed certain facts---Though report under S.173, Cr.P.C. had been submitted in the Court, but under S.497, Cr.P.C. an accused was entitled to grant of bail at any stage if he succeeded in making out a case of further inquiry---Bail could not be withheld as a punishment that co-accused had not been arrested---Accused was released on bail, in circumstances.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 337-F(iii), 427, 109, 148 & 149---Bail---Bail could not be withheld as a punishment that co-accused had not been arrested.

Ch. Noor Muhammad for Petitioner.

Muhammad Taqi Khan for the Complainant.

Marina Parveen Chaudhry for the State.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1515 #

2006 P Cr. L J 1515

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD NADEEM----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1036/B of 2006, decided on 17th May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 109 & 34---Bail, grant of---Further inquiry---No fatal damage was caused to the victim as fire shot attributed to accused had hit the left calf of complainant, whereas fire shots made by unknown accused had only pierced through clothing of complainant and his companion---In view of allegation and damage allegedly caused by accused, applicability of S.324, P.P.C., called for further probe within the meaning of subsection (2) of S.497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Hassan Akhtar Chaudhry for Petitioner. Shahid Nasim for the State.

Muhammad Baqir S.-I. Police Station Shah Gharib, District Narowal with police file.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1531 #

2006 P Cr. L J 1531

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD IQBAL----Petitioner

Versus

MUHAMMAD TAHIR and 3 others----Respondents

Criminal Miscellaneous No.6614/CB of 2005, decided on 9th June, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 497(5) & 498---Penal Code (XLV of 1860), Ss.337-A(i), 452, 148 & 149---Pre-arrest bail, cancellation of---Trial Court took it for granted that complainant being office Superintendent in Police Department, must have used his influence---Possession by accused persons of departmental identity card of complainant was yet another circumstance, which was pressed in aid of granting bail to accused which was not a very relevant consideration---Impugned order proceeded on conjectures and Trial Court had travelled beyond the realm of tentative assessment of material available on record---Basic prerequisites for grant of pre-arrest bail viz. malice on the part of complainant or the police had not been adverted to by the Trial Court---Impugned order on face of it being arbitrary and conjectural, could not be sustained---Pre-arrest bail allowed to two accused persons, was recalled---Other accused being an elderly lady, concession of pre-arrest bail allowed to her, was not recalled---Petition to her extent was dismissed, but to the extent of two accused was accepted and they were committed to custody.

Rana Muhammad Anwar for Petitioner.

Muhammad Maqsood Buttar for Respondents Nos.l to 3.

Hafiz Maqsood Ahmad for the State.

M. Afzal, A.S.-I. Police Station Samanabad, Lahore with police file.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1534 #

2006 P Cr. L J 1534

[Lahore]

Before Maulvi Anwarul Haq, J

IFTIKHAR HUSSAIN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1 of 2006 in Criminal Revision No.93 of 2006, decided on 5th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.320, 337-G & 427---Suspension of sentence---Sentence recorded against accused was short and substantial part thereof had already been undergone by accused and also it was not certain as to when criminal revision by accused would be taken up for hearing---Sentences of accused were suspended and he was granted bail, in circumstances.

Muhammad Shoaib Buzdar for Petitioner.

Azmat Ali Khanzada for the State.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1535 #

2006 P Cr. L J 1535

[Lahore]

Before Muhammad Sayeed Akhtar and Tariq Shamim, JJ

SAJJAD alias SHADA----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1170/B of 2006, decided on 23rd May, 2006.

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---Investigating Officer who appeared in the Court had stated that real accused lady who was arrested in some other case, had confessed that she had got planted Charas in question upon accused---Investigating Officer had further stated that said lady accused was involved in three other cases of narcotics---Since_accused had been found innocent during investigation, his case was of further inquiry---Accused was admitted to bail, accordingly.

Syed Muzaffar Abbas Kazmi for Petitioner.

Muhammad Mumtaz Malik, Special Prosecutor, A.N.F. with Syed Sajeel Haider, Assistant Director, A.N.F. Multan.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1537 #

2006 P Cr. L J 1537

[Lahore]

Before Tariq Shamim, J

Mst. RASHEEDA BIBI----Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION CITY CHICHAWATNI, DISTRICT SAHIWAL and 3 others----Respondents

Writ Petition No.5950/Q of 2005, decided on 8th June, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Penal Code (XLV of 1860), Ss.420, 468 & 471---Constitutional petition---Quashing of F.I.R.---Petitioner/accused with connivance and assistance of other accused had forged and fabricated an agreement to sell in respect of land of respondent allegedly in order to deprive her of the same---Civil suit was filed by petitioner in order to pre-empt criminal proceedings and to give illegal act of fraud and forgery a complexion of a dispute of civil nature---Contention of petitioner that under S.195, Cr.P.C. it was only the Trial Court which could direct registration of a criminal case, was repelled in view of fact that section 195, Cr.P.C. contemplated filing of a complaint by the Trial Court on submission of a forged documents in evidence by a party---Document, in the present case, was forged prior to filing of suit---Contents of F.I.R. revealed that offences under Ss.420, 468, 471, P.P.C. were fully made out and section 420, P.P.C. being cognizable offence, registration of criminal case against petitioner/accused by the police, was in consonance with the law---If during a transaction, criminal liability was spelt out, no bar existed under the law of two proceedings, civil as well as criminal continuing side by side as both related to different laws---Present, case was not a case of conversion of a civil dispute into a criminal liability, but facts and circumstances spelt out commission of criminal offences by accused/petitioners and others---Since investigation was continuing in the matter, High Court could not control or interfere in the same as investigation was the sole prerogative of Investigating Agencies---Prima facie facts of the case did not disclose that allegations levelled by respondent in the F.I.R. were baseless or motivated solely out of malice---Petition for quashing of F.I.R., being without merit, was dismissed.

Abdul Haleem v. The State and others 1982 SCMR 988; Rafique Bibi v. Muhammad Sharif and others 2006 SCMR 512; M. Aslam Zaheer v. Ch. Shah Muhammad and another 2003 SCMR 1691; Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division Islamabad and 2 others 1994 SCMR 2142; Shahnaz Begum v. The Honourable Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677 and Kainran Khan v. Station House Officer, Police Station Model Town, Gujranwala and 2 others 2005 PCr.LJ 825 ref.

Ch. Muhammad Ashraf for Petitioner.

Syed Irshad Hussain Jafary for the Complainant.

M.R. Khalid Malik, Addl. A.-G. with Asghar Ali S.-I.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1541 #

2006 P Cr. L J 1541

[Lahore]

Before Ijaz Ahmad Chaudhry, J

SHAHBAZ----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.595 and Criminal Revision No.388 of 2004, decided on 6th June, 2006.

Penal Code (XLV of 1860)---

----Ss. 302, 308 & 311---Appreciation of evidence---Accused had admitted to have caused injuries to deceased while making statement under S.342, Cr.P.C., but in a different manner---Trial Court through impugned judgment concluded that prosecution had succeeded in proving case against accused beyond any shadow of doubt and also rejected defence plea, but had convicted and sentenced accused tinder Ss.308 & 311, P.P.C. only on ground that one of the heirs of deceased had forgiven accused in the name of Allah and waived right of Qisas---Case was not that of Qisas falling under S.302(a), P.P.C. as the eye-witnesses had not undergone the test of Tazkiya-tul-Shahood before recording of their evidence, but it was a case falling under Tazir---In cases of Tazir partial compromise effected with only some of the legal heirs, could not be used and was not sufficient to hold that offence had been compromised, but compromise could be effected by all legal heirs of . deceased under S.345(2), Cr.P.C. with the permission of the Court---Impugned conviction and sentence recorded by Trial Court against accused under Ss.305 & 311, P.P.C. were set aside to the extent of accused and case was remanded to Trial Court for re-writing of judgment on merits without being influenced by any finding of High Court after affording opportunity of hearing to counsel for parties.

Bashir Ahmad v. The State and another 2004 SCMR 236 ref.

Syed Tahir Abbas Rizvi for Appellant at State expense.

Ch. Nizam-ud-Din Arif for the State.

Khurshid Ahmad Sodhi for the Complainant (in Criminal Revision No.388 of 2004).

Dates of hearing: 5th and 6th June, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1548 #

2006 P Cr. L J 1548

[Lahore]

Before M. Bilal Khan, J

ASIF----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.2651/B and 2861/B of 2006, decided on 8th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 337-A(i), 337-F(i), 337-L(ii) & 34---Bail, grant of--Further inquiry---Fatal injury to deceased- had been attributed to co-accused---Role attributed to accused was that he had caused blows with butt of his fire-arm on the head of deceased---Accused according to complainant though was armed with a wire-like chain, but a .30 bore pistol was allegedly recovered from him---Six injuries were allegedly suffered by deceased, out of which two injuries were Shjjah-i-Khafifah falling under S.337-A(i), P.P.C., three injuries were Ghayr-Jaifah Damiyah falling under S.337-F(i), whereas one injury fell was under S.337-L(ii), P.P.C.---Offence under Ss.337-A(i), 337-F(i) and 337-L.2, P.P.C., were bailable---Prosecution's own case was that, petitioners, who were armed with lethal weapons, had not caused an injury to deceased, in view of nature of injuries suffered by deceased and fact that accused had contended with causing only nominal damage to prosecution witness, applicability of S.324, P.P.C. called for further inquiry---Likewise keeping in view the fact that accused had not caused any injury to the deceased, their liability under S.34, P.P.C. would also be a matter of further inquiry within contemplation of subsection (2) of S.497, Cr.P.C.---Mere fact that trial had commenced or was likely to commence, would not deter High Court to extend concession of bail, if accused otherwise were entitled to same on merits---Accused were admitted to bail, in circumstances.

Sardar Khurram Latif Khan Khosa for Petitioner (in Criminal Miscellaneous No.2651/B of 2006).

Yasmeen Kanwal for the State (in Criminal Miscellaneous No.2651/B of 2006).

Rana M. Shafique, Advocate for the Petitioner (in Criminal Miscellaneous No.2861/B of 2006).

Sohail Irshad Warraich, Advocate for the State (in Criminal Miscellaneous No.2861/B of 2006).

Aman Ullah Khan Niazi, Advocate for the complainant (in both the cases).

Muhammad Siddique, A.S.-I. Police Station Nawan Lahore, District Toba Tek Singh with police file.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1551 #

2006 P Cr. L J 1551

[Lahore]

Before Muhammad Jehangir Arshad, J

FIDA HUSSAIN----Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, JAMPUR, DISTRICT RAJANPUR and another----Respondents

Writ Petition No.2027 of 2006, decided on 2nd May, 2006.

Criminal Procedure Code (V of 1898) ---

----Ss. 190 & 265-K---Penal Code (XLV of 1860) Ss.365-A, 337-A(i), 506(ii), 148 & 149---Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 23--Constitution of Pakistan (1973), Art.199--- Constitutional petition---Transfer of case to Anti-Terrorism Court---Complaint in the case was directly filed by complainant against accused/petitioner before Magistrate in terms of S.190, Cr.P.C. as a private complaint in ordinary case---Special Court was competent to entertain private complaint directly and issue process to accused after holding preliminary inquiry in the case---Adoption of process in terms of S.190, Cr.P.C., filing of complaint before Magistrate in a case exclusively triable by Court of Session and then sending same by Magistrate to Sessions Court for trial, was not mandatory requirement for filing private complaint before Special Court---Even filing of complaint before Magistrate, in the present case was neither legal nor its sending to the Court of Session was legal requirement---All proceedings conducted by Magistrate and Additional Sessions Judge in complaint containing allegation of abduction for ransom, in circumstances, was an exercise in futility---Such procedural defect, however, was neither fatal nor on basis of said defect, petitioner/accused could be acquitted in terms of S.265-K, Cr.P.C. as claimed by accused--Order passed by Additional Sessions Judge sending case to Anti-Terrorism Court for trial, was neither without lawful authority nor suffered from any jurisdictional defect---Anti-Terrorism Court in terms of S.23 of Anti-Terrorism Act, 1997, could refuse to try complaint and transfer same for trial in the Court of competent jurisdiction, if after recording evidence, Anti-Terrorism Court was of the opinion that offence was not a Scheduled offence.

Rana Abdul Ghaffar v. Abdul Shakoor and 3 others PLD 2006 Lah. 64; Mirza Shaukat Baig v. Shahid Jamil and others PLD 2005 SC 530 and Riffat Hayat v. Judge, Special Court for Suppression of Terrorist Activities, Lahore and another 1994 SCMR 2177 ref.

Sardar Altaf Hussain Khan for Petitioner.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1559 #

2006 P Cr. L J 1559

[Lahore]

Before Khawaja Muhammad Sharif, J

ZULFIQAR----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.369-J of 2001 and Criminal Revision No.154 of 2002, decided on 13th March, 2006.

Penal Code (XLV of 1860)---

----Ss. 307 & 308---Appreciation of evidence---Partial compromise---Complainant was father of accused and deceased---Two eye-witnesses had fully supported prosecution case---Complainant was not the only legal heir of deceased, but apart from complainant deceased also survived by his real mother who had filed a revision for enhancement of sentence of accused---Case of partial compromise, could not be accepted---Maximum conviction and sentence under S.308, P.P.C., prevalent at the time of passing impugned judgment had been awarded to accused---Though case was proved against accused to the hilt and he should have been convicted under S.302(b), P.P.C., but neither State nor complainant filed appeal against acquittal of accused under S.302(b), P.P.C.---Court, in circumstances was left with no alternative, but to maintain conviction and sentence awarded to accused by the Trial Court---Appeal and connected revision filed for enhancement of sentence of accused, were dismissed.

Hamid v. The State 2003 SCMR 416 and Niaz Ahmad v. The State PLD 2003 SC 635 ref.

S.D. Qureshi for Appellant.

Siddiqua Altaf for the State.

Sahibzada Adeel Hussain for the Complainant.

Date of hearing: 9th March, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1564 #

2006 P Cr. L J 1564

[Lahore]

Before Syed Shabbar Raza Rizvi, J

SAKHAWAT HUSSAIN SHAH----Petitioner

Versus

THE STATE and 3 others----Respondents

Writ Petition No.18426 of 2005, decided on 30th June, 2006.

(a) Words and phrases---

---"Prosecution", defined and explained.

Muhammad Abbas v. The State PLD 1981 SC 642; Hurne v. Druyff LR 8 Ex. 214 and Syed Alamdar Hussain Shah v. Abdul Baseer Qureshi and 2 others PLD 1978 SC 121 ref.

(b) Police Order (22 of 2002)---

----Art. 155(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---"Prosecution", meaning of---"Prosecution" in context of Art.155(2) of Police Order, 2002, would mean institution and continuance of a criminal proceedings after framing of a formal charge before a competent Court and pursuing said proceedings until final judgment of acquittal or conviction---Merely registration of FIR., could not be construed as "prosecution" in context of Art 155(2) of Police Order, 2002---Petition for quashing of F.I.R., was dismissed, in circumstances.

Ismail A, Rehman v. Muhammad Sadiq PLD 1990 Kar. 286 and Tasawar Hussaini v. The State 1986 PCr.LJ 2218 ref.

Dr. Shaukat Hussain for Petitioner.

Khurshid Anwar Bhindar, Addl. A.-G. Punjab for the State.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1568 #

2006 P Cr. L J 1568

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD ARSHAD----Appellant

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1 of 2004 in Criminal Appeal No.1578 of 2004, decided on 28th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.302(b) & 34---Suspension of sentence---Petition for---Conflict was found between ocular account and medical evidence---Motive part of story and alleged recovery from accused had not been believed---Evidence on basis of which accused had been convicted and sentenced, needed reappraisal during course of hearing of main appeal---Petition was allowed and sentence awarded to accused was suspended--Accused was released on bail.

Muhammad Afzal and another v. The State 1994 SCMR 453 ref.

Kh. Awais Mushtaq for Petitioner No.2.

Tanvir Ahmad Shami for the State.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1569 #

2006 P Cr. L J 1569

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Ijaz Ahmad Chaudhry, JJ

RASHID AHMAD----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.237/J and Murder Reference No.62/T of 2002, decided on 6th March, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7---Appreciation of evidence---F.I.R. was lodged within one hour of occurrence containing all minor details---Promptness in lodging F.I.R. was sufficient to rule out the possibility of false involvement and concoction---According to site plan, accused had fired from a distance of one Karam, which means that both the parties. were close to each other and there was no difficulty in identifying assailants---Arguments about non-availability of the light at the relevant time for identification of the assailant, had become irrelevant---One empty cartridge taken into possession during spot inspection and crime empty (gun) recovered on the pointation of accused, were sent to Forensic Science Laboratory and its report had revealed that empty recovered from the spot, was fired from the gun which was recovered at the instance of accused, which had rendered ample corroboration to ocular account---Medical evidence had supported ocular account---Location, duration and nature of injuries as narrated by eye-witnesses stood affirmed by medico-legal report, which had strengthened prosecution case---Prosecution having succeeded in proving its case against accused beyond any shadow of doubt, appeal against conviction and sentence of accused, stood dismissed---Death sentence was confirmed and Murder Reference was answered in affirmative.

Syed Fayyaz Ahmad Sherazi for Appellant.

Miss Irrum Sajjad Gull for the State.

Date of hearing: 6th March, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1584 #

2006 P Cr. L J 1584

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD KHALID----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1578/B of 2006, decided on 2nd March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.302, 109, 147 & 148---Ad interim pre-arrest bail, confirmation of--Accused was found innocent during investigation---Only allegation against accused was that he held deceased along with seven other co-accused---Single injury caused on the head of deceased was caused by co-accused---Entire family of accused including his cousins had been involved by complainant in the case, which was sufficient to show mala fide of complainant---Case against accused was of further inquiry---Ad interim pre-arrest bail already granted to accused, was confirmed, in circumstances.

Mian Muhammad Kashif for Petitioner.

Sarwat Nawaz with Mian Khan, S.-I. for the State.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1586 #

2006 P Cr. L J 1586

[Lahore]

Before Abdul Shakoor Paracha, J

MUHAMMAD NAWAZ and 2 others----Petitioners

Versus

THE STATE and another----Respondents

Criminal Miscellaneous Nos.1367/BC and 1463/B of 2005, decided on 28th February, 2006.

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

----S. 497---Penal Code (XLV of 1860), Ss.468 & 471---Bail, grant of---Accused was not nominated in F.I.R. and he was not a party to the transaction, or marginal witness of mutation in question---Accused had not obtained any forged Identity Card of any person or used same---Provisions of Ss.468 & 471, P.P.C., in circumstances were not attracted in the facts and circumstances of the case---Bail could not be withheld as punishment only--Co-accused of accused with similar role had already been released on bail---Accused was also entitled for grant of bail on the principle of consistency---Accused was behind the bar for a considerable period---Accused was admitted to bail, in circumstances.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.420, 468, 471, 409 & 109---Prevention of Corruption Act (II of 1947), S.5(2) ---Cancellation of bail, petition for---Respondent was not nominated in F.I.R. and he was neither party to the transaction nor witness of mutation in question---No role was ascribed to respondent in the F.I.R.---Respondent was an official of the company concerned and during investigation A.S.P. had also exonerated him observing that no mens rea was found on his part to commit offence---Offences against respondent did not fall within the prohibitory clause of S.497, Cr.P.C.---Grant of bail was a rule and refusal was an exception---No allegation was on record against respondent that he, after release on bail, had created any hindrance in the completion of investigation or in trial or had misused concession of bail---In absence of any ground, petition for cancellation of bail, was dismissed.

Malik Waheed Anjum for Petitioner (in Criminal Miscellaneous No.1463/B of 2005).

Syed Rifaqat Hussain Shah for Petitioner (in Criminal Miscellaneous No.1367/BC of 2005).

Malik Rabnawaz Noon for the Complainant.

Imran Ahmed Khan for the State counsel along with M. Irshad, A.S.-I.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1595 #

2006 P Cr. L J 1595

[Lahore]

Before Fazal-e-Miran Chauhan and Sh. Javaid Sarfraz, JJ

MUHAMMAD ASLAM and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.119-B of 2006, decided on 20th February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.2(d)(ii) & 9(c)---Bail,- grant of---Further inquiry---Alleged material recovered from accused was sent to Chemical Examiner and according to the report, entire recovered material was "Bhang" which was not hemp as defined in S.2(d.)(ii) of Control of Narcotic Substances Act, 1997---Such fact had brought case of accused within the ambit of further inquiry---Accused were behind the bars since long---Challan had been submitted in the Court, but there was no material progress in the trial---Detention of accused could not be allowed as in criminal jurisprudence there was no concept of punishment before conviction.

Syed Asif Raza Gillani for Petitioners.

Sh. Muhammad Arshad with Ashiq Hussain, A.S.-I. for the State.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1596 #

2006 P Cr. L J 1596

[Lahore]

Before Muhammad Jehangir Arshad, J

IJAZ ALI----Petitioner

Versus

D.P.O. and others----Respondents

Writ Petition No.718 of 2006, decided on 21st June, 2006.

Police Order (22 of 2002)---

----Art. 18---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11---Constitution of Pakistan (1973), Art.199---Constitutional, petition---Illegal and unauthorized change of investigation---Grievance of petitioner/accused was that his case earlier was investigated by S.H.O. Police Station concerned who, after completion of investigation, recorded finding of his innocence, but on telephonic message from D.P.O., investigation was entrusted to D.S.P. in the garb of verification and D.S.P. started re-investigation---D.P.O. had no jurisdiction either to change investigation or to have the case re-investigated in the garb of supervising investigation in terms of Art.18 of the Police Order, 2002---Entire exercise of D.S.P. concerned in starting re-investigation of the case already concluded by S.H.O. was not only without authority, but also in violation of the rules of law---Instead of changing investigation in the garb of verification which was colourful exercise of jurisdiction by D.P.O., if he was not satisfied with the conduct of investigation he could place the matter before District Investigation Board seeking change of investigation, if he himself felt so or received any information from any person, along with his note giving reason for change of investigation---D.P.O. could also refer matter to Additional Inspector General Police as provided under: Art. 18 of Police Order 2002, but in no circumstances D.P.O. could either change investigation directly or in the garb of verification/supervision of investigation by any other person already conducted by competent Authority.

Muhammad Ali Hussain v. District Police Officer and others PLD 2006 Lah. 95; Aziz Ahmad v. Provincial Police Officer (I.-G.P.) Punjab, Lahore and 6 others PLD 2005 Lah. 185 and Ikram-ul-Haq v. Inspector-General of Police Punjab, Lahore, and 12 others 2005 PCr.LJ 754 ref.

Mian Muhammad Saleem Akhtar for Petitioner.

Nadim Iqbal Chaudhry for the Complainant.

Syed Shaheen Masud Rizvi, A.A.-G.. with Nawazish Ali, Inspector/S. H.O.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1600 #

2006 P Cr. L J 1600

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD SHAHID----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1004/B of 2006, decided on 28th February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Bail, grant of---Further inquiry---Accused had not caused any injury to any person during alleged occurrence and the only role attributed to accused in F.I.R. was that of indulging in ineffective firing---No fire-arm had been recovered from possession of accused during investigation of the case---Accused was not directly connected with motive set up in F.I.R.---Questions regarding sharing of common object by accused with his co-accused as also the question regarding his vicarious liability for the offence allegedly committed by his co-accused, were questions which required further probe---Challan had already been submitted after completion of investigation---Physical custody of accused, in circumstances was not required for purposes of investigation---Case against accused calling for further inquiry into his guilt within the purview of subsection (2) of S.497, Cr.P.C., he was allowed bail.

Muhammad Aril Ismail for Petitioner.

Khurram Shabbir for the State.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1633 #

2006 P Cr. L J 1633

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD NAEEM alias BHOLI----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.148/B of 2006, decided on 24th February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.324/34---Ad interim pre-arrest bail, confirmation of---Name of accused did not feature in the F.I.R., but was cropped up for the first time in supplementary statement got recorded by complainant two days after the occurrence---Witnesses of abetment had been examined eleven days after occurrence---Case of accused being one of further inquiry within the meaning of subsection (2) of S.497, Cr.P.C. ad interim pre-arrest bail granted to accused, was confirmed, in circumstances.

Hassan Akhtar Chaudhry for Petitioner.

Muhammad Baqir S.-I. for the State.

Zafar Iqbal Chohan for the Complainant.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1636 #

2006 P Cr. L J 1636

[Lahore]

Before Asif Saeed Khan Khosa, J

Dr. NASIR ALI----Appellant

Versus

S.H.O. POLICE STATION GHULAM MUHAMMADABAD FAISALABAD and others----Respondents

Writ Petition No.1803 and Civil Miscellaneous No.2 of 2006, decided on 10th March, 2006.

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

----Arts. 3 & 4---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of F.I.R.---Documents appended with the petition had shown that accused was duly authorized to keep recovered substance (rectified spirit) in his possession and he held a valid permit for the same---Impugned F.I.R. had itself shown that on the day of alleged recovery, said permit of accused was intact and same had been suspended at a subsequent stage---Documents on record had further shown that accused had procured 160 gallons of rectified spirit with prior approval of concerned authority---Accused, in circumstances, was in possession of recovered rectified spirit quite lawfully and without breaking any law and it was not alleged that rectified spirit was not properly sealed at the time of its recovery or that seals of same had been broken or opened---Contents of impugned F.I.R. did not disclose commission of alleged offences by accused---Allowing impugned F.I.R. to continue to hold field, would amount to an abuse of the process of law which could not be allowed by High Court to be perpetuated.

Nadeem Shibli for Appellant.

Syed Hasnain Kazmi, A.A.-G. with Jahangir Khan, A.S.-I. with record for Respondents Nos.1 and 2.

Respondent No.2 in person.

Date of hearing: 8th March, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1639 #

2006 P Cr. L J 1639

[Lahore]

Before Khawaja Muhammad Sharif, J

Prof. MUHAMMAD YAHYA CH.----Petitioner

Versus

THE STATE and 6 others----Respondents

Writ Petition No.17962 of 2005, decided on 9th June, 2006.

(a) Police Order (22 of 2002)---

----Art. 18(6)---Penal Code (XLV of 1860), Ss.420, 468, 471 & 406---Constitution of Pakistan (1973), Art.199---Constitutional petition---Cancellation of case---Cancellation report was prepared on verbal direction of S.S.P. (Investigation), which was not brought to the notice of the Magistrate---Magistrate passed impugned order without applying his judicial mind which was not at all sustainable in law---Whole exercise, leading to preparation of cancellation report, appeared to be manoeuvred by accused persons involved in F.I.R. in collusion with the police---Investigation conducted with the case and preparation of impugned police report, were declared to be violative of law and settled principles of superior Courts---Provisions of Police Order, 2002 had also been violated, in the case---Impugned order passed by Judicial Magistrate, was declared to have been passed without lawful authority and having no legal effect.

1998 PCr.LJ 56; 1991 PCr.LJ 62; PLD 1985 SC 62; Bahadur and others v. The State and others PLD 1985 SC 62; AIR 1968 SC 117; Khyzar Hayat v. I.-G. Punjab PLD 2005 Lah. 470; Hazara (Hill Tract) Improvement Trust through Chairman and others v. Mst. Qaisra Elahi and others 2005 SCMR 678; Government of Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 and Muhammad Bashir v. Abdul Karim PLD 2004 SC 271 ref.

(b) Practice and procedure---

----Civil and criminal proceedings could proceed side by side and there was no bar on registration of criminal case and its consequential flow as provided in Criminal Procedure Code and the law relating to investigation, if facts and circumstances of the case so warranted.

----Justice should not only be done, but it should manifestly be seen to have been done.

Nasrullah Khan v. Manzoor Hussain and others 2004 SCMR 885 ref.

Aleem Baig Chughtai with Miss Nargis Gull for Petitioner.

Ch. Muhammad Hanif Khatana, Addl. A.-G. for the State with Jameel A.S.-I. with record.

Malik Abdul Salam for Respondent No.6.

Salman Mansoor for Respondent No.7. .

Date of hearing: 6th June, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1652 #

2006 P Cr. L J 1652

[Lahore]

Before Khawaja Muhammad Sharif and M.A. Shahid Siddiqui, JJ

NOOR MUHAMMAD and 2 others----Appellants

Versus

THE STATE-Respondent

Criminal Appeal No.308 and Murder Reference No.125 of 2001, heard on 29th May, 2006.

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

----S. 302(b)---Appreciation of evidence---Duration between injury and death and between death and post-mortem given by Doctor who conducted post-mortem examination of dead body of deceased, fitted in with the time of occurrence given by prosecution---Incident was a broad-daylight occurrence and both parties being known to each other, there was no question of mistaken identity---Both eye-witnesses though were related to deceased but they had no enmity whatsoever to falsely implicate accused---Complainant being real son of deceased, could not be expected to leave actual killer of his father and falsely implicate innocent persons---Prosecution had proved its case against two accused persons beyond any shadow of doubt---Conviction and sentence recorded against said two accused persons by the Trial Court, was maintained in toto---No mitigating circumstance was available in favour of accused who chose most vital part of body of deceased and fired shot with formidable weapon---Death sentence of said accused was confirmed and murder reference was replied in affirmative.

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

---S. 302(b)---Appreciation of evidence---Motive and corroboration---Motive was always in the mind of accused and he was the best judge to select as to when and where he had to react---Weakness of motive, its absence and when alleged, but not proved, was not even an extenuating circumstance when ocular account furnished by prosecution witnesses had come from an unimpeachable source and rang true---Corroboration was not a rule, but matter of prudence and in every case corroboration was not necessary and conviction could he recorded or maintained if ocular account was confidence-inspiring.

Waris Khan v. The State 2001 SCMR 387 and Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427 ref.

---S. 302(b)---Appreciation of evidence---Benefit of doubt---Co-accused---Trend of cross-examination of the witnesses, Investigating Officer and Court witness, was that co-accused was innocent---No recovery was effected from co-accused---Case against co-accused being of doubtful nature, while extending him benefit of doubt, appeal to his extent was accepted.

M.A. Zafar and Malik Suleman Awan for Appellants.

Muhammad Aslam Malik and Mrs. Siddiqa Altaf Khan for the State.

Date of hearing: 29th May, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1699 #

2006 P Cr. L J 1699

[Lahore]

Before M.A. Shahid Siddiqui, J

WALI MUHAMMAD and others----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.127/Q of 2005, decided on 11th March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.451, 452, 354, 427, 148 & 149---Quashing of proceedings in F.I.R.---No allegation was available to the effect that accused persons entered the house of complainant in order to commit an offence---Entry of accused persons after the entry of prosecution witnesses into the house of complainant, had simply shown that they wanted to rescue principal accused from the clutches of complainant party---Accused had been facing the agony of trial simply because they happened to be father and brother of co-accused---Trial Court, while dismissing application of principal accused under S.249-A, Cr.P.C. had omitted to consider the facts of the case and incriminating material available on record in the form of statements under S.161, Cr.P.C.---In view of close relationship of accused persons with principal accused, they appeared to have been falsely implicated in the case---No possibility existed of accused persons 'being convicted of any offence---Accused had been exposed to the rigours of trial for more than four and half years without any lawful justification which amounted to abuse of process of law---Accepting petition, proceedings were quashed against accused persons.

Nadeem Shibli for Appellants.

Liaquat Ali Sial for the State.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1701 #

2006 P Cr. L J 1701

[Lahore]

Before Khawaja Muhammad Sharif and Mian Muhammad Najam-uz-Zaman, JJ

RIASAT ALI and 2 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.34, 185 and Criminal Revision No.42 of 1991, decided on 27th June, 2005.

Penal Code (XLV of 1860)---

----Ss. 302, 307 & 34---Criminal Procedure Code (V of 1898), S.345---Compromise between accused and legal heirs of deceased---Deceased, who was minor at the time of his death, was survived by his father and mother---Both said legal heirs of deceased had deposed before the Court that they had compounded the offence, had forgiven accused and had no objection to their acquittal---Injured person in occurrence had also appeared before the Court and had made statements to the effect that they had compromised with accused and that by exercising their right of Afw, had forgiven accused in the name of Almighty Allah---Counsel for State also had no. objection if compromise was allowed---Legal heirs of deceased and injured victims were allowed to compromise the offence with accused in view of report of Sessions Judge with regard to genuineness of the compromise---Permission to compound offence in view of S.345(5), Cr.P.C. was accorded to the parties in order to maintain cordial relations between them and bury their hatchet forever---Conviction and sentence recorded by the Trial Court, were set aside and accused were acquitted of the charge under S.345(6), Cr.P.C. and were directed to be released.

Muhammad Hussain Chhachhar for Appellants.

S.D. Qureshi for the State.

Date of hearing: 27th June, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1707 #

2006 P Cr. L J 1707

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD ARIF----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.8438/B of 2005, decided on 21st February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 337-A(ii), 337-F(iii) (iv), 148 & 149---Bail, refusal of---Name of accused was mentioned in F.I.R. with a specific role of causing fire-arm injury to one person---Deeper appreciation of evidence was not possible at bail stage---Prima facie, record submitted in bail application of two co-accused, which had been withdrawn, suggested that prosecution witnesses were available on the previous dates of hearing, but evidence could not be recorded on request of counsel for accused---Accused could not be allowed to take advantage of delay in conclusion of trial---Bail was refused.

Faryad Ali Chaudhary for Petitioner.

Masood Ahmad Zafar for the Complainant.

Miss Sumairah Efzal for the State.

Abdul Ghani S.-I.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1709 #

2006 P Cr. L J 1709

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ZAID----Petitioner

Versus

SHAHID TUFAIL and 3 others----Respondents

Criminal Revision No.941 of 2004, decided on 10th December, 2004.

Criminal Procedure Code (V of 1898)---

----Ss. 154 & 200---Penal Code (XLV of 1860), Ss.302, 199 & 34---Challan case and complaint case---Police, during course of investigation, came to the conclusion that accused mentioned in the F.I.R. were innocent so they were not arrested---Petitioner/complainant feeling aggrieved filed complaint; after recording preliminary evidence respondents were summoned---Trial Court took cognizance and framed charge and thereafter recorded statement of three witnesses---Grievance of petitioner, who lodged complaint, was that police with mala fide intention declared accused mentioned in F.I.R. as innocent and never arrested them---Court also summoned challan case and started proceedings in challan case which had been challenged---Investigating Officer, who was mentioned as witness in challan case figured nowhere in complaint case---If the challan case was to be taken up first then petitioner would have no right to cross-examine Investigating Officer to bring the truth on the record because Investigating Officer had declared respondents innocent without any material on record---Impugned order was set aside and Trial Court was directed to stop proceedings in challan case and to start proceedings in the complaint case---All witnesses mentioned in complaint case would be examined as prosecution witnesses, while remaining witnesses, who were mentioned in challan case, were allowed to be examined as Court witnesses in order to bring the true facts on the record.

Noor Elahi's case PLD 1966 SC 708; 1984 SCMR 221; 1981 SCMR 361; PLD 1980 SC 168; 2001 PCr.LJ 244; PLD 2004 SC 219; PLD 1979 SC 53; 1985 SCMR 1341; 1981 SCMR 361 and 1997 SCMR 334 ref.

Ch. Muhammad Afzal Wahla for Petitioner.

Pervaiz Inayat Malik for Respondents.

Ch. Muhammad Hanif Khatana Actg. A.-G.

Zaheer Haider A.S.-I. with record.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1712 #

2006 P Cr. L J 1712

[Lahore]

Before Ijaz Ahmad Chaudhry, J

GHULAM MUSTAFA----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1668/B of 2006, decided on 22nd March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Penal Code (XLV of 1860), S.452/34---Bail, refusal of---Offence of accused fell within prohibitory clause of S.497, Cr.P.C. and allegation against him was also corroborated by the report of Chemical Examiner---Accused could not succeed to make out a case of further inquiry as the police had declared accused as innocent only on the basis of "Qasum and Niah"., which could not be given any importance---Even otherwise finding of the police was not binding on the Courts---Serious allegation had been levelled against accused for the commission of Zina--Delay in registration of case was not fatal in case as complainant had to think over hundred times before registration of the case, which involved the honour of the whole family---Accused had failed to point out any mala fide on the part of complainant or alleged victim for his false implication in the case.

Rana Shaukat Ali Khan for Petitioner.

Mirza M. Aziz-ur-Rehman for the Complainant.

2006 P Cr. L J 1723

[Lahore]

Before Khawaja Muhammad Sharif and M.A. Shahid Siddiqui, JJ

SANA ULLAH----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.66/J and Murder Reference No.237 of 2001, decided on 6th February, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---Eyewitnesses, though were related to deceased, but had no animosity against accused---Deceased was wife of brother-in-law of accused and they had no ill-will or mala fide against accused---Case was that of single accused and in a case of such-like nature, substitution was a rare phenomenon---.Ocular account furnished by two eye-witnesses was fully supported by medical evidence furnished by Lady Doctor who conducted post-mortem examination on dead body of deceased lady---Prosecution had been successful in proving its case against accused beyond any shadow of doubt---Some mitigating circumstances were available in favour of accused, such as, that it was a case of single shot, accused did not take undue advantage---Motive was also shrouded in mystery and nobody knew as to what happened just prior to the occurrence---According to prosecution itself, occurrence took place at the spur of the moment because accused gunned down deceased on her refusal to pay him some amount---Conviction of accused under S.302(b), P.P.C. was maintained, but his sentence of death was reduced to imprisonment for life with benefit of S.382-B, Cr.P.C.

Malik Riaz Khalid Awan for Appellant.

Muhammad Aslam Malik and Muhammad Azam for the State.

Date of hearing: 6th February, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1726 #

2006 P Cr. L J 1726

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

ABDULLAH and others---Appellants

Versus

THE STATE and others----Respondents

Criminal Appeal No.1598 of 2001, Murder Reference No.324 of 2002 and Criminal Revision No.755 of 2001, heard on 29th May, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 109, 148 & 149---Appreciation of evidence---Both complainant and prosecution witness, were not only very closely related to deceased, but were also inimical toward accused and were chance witnesses---Said witnesses surely were interested against accused and their normal places of abode were situated quite far away from place of the occurrence---Complainant and prosecution witness, were not proved to have been present with deceased at the time of his murder and that they had been procured and planted in the case as eye-witnesses at some subsequent stage---S.H.O. had stated that deceased was a proclaimed offender, and a wanted person in ten cases registered against him at police station and that he was also an accused person in eighteen other cases and that deceased had many other enemies---Motive set up by prosecution had remained far from being established and no corroboration to ocular account was forthcoming on that score---Acquittal of co-accused of accused persons by the Trial Court had already established that eye-witnesses produced by prosecution were quite capable of falsehood---Absconscion of an accused person, could not be proved by prosecution by relying upon a report pertaining to some other accused person of some other criminal case---Fourteen crime-empties allegedly recovered from place of occurrence, had never been sent to Forensic Science Laboratory and Klashnikov recovered from possession of one of accused had not been sealed; in said circumstances no corroboration to ocular account was available from said recoveries which were legally inconsequential---Post-mortem examination of dead body of deceased,, was conducted with considerable delay---Such delayed post-mortem examination of a dead body was generally suggestive of a real possibility regarding time having been utilized by complainant party and the police in procuring and planting eye-witnesses and in cooking up story of prosecution---Medical evidence produced in the case had gone a long way in contradicting and discrediting eye-witnesses produced by prosecution-Prosecution, in circumstances had failed to prove its case against accused beyond any reasonable doubt---Convictions and sentences of both accused recorded by Trial Court were set aside and they were acquitted of the charge by extending them benefit of doubt.?

M.A. Zafar and Majid Hussain Chaudhry for Appellants (in Criminal Appeal No.1598 of 2001).

Nemo for Petitioner (in Criminal Revision No.755 of 2001).

Maqbool Ahmad Qureshi for the State (in Criminal Appeal No.1598 of 2001).

Tahir Abbasi Rizvi for the State (in Murder Reference No.324 of 2002).

Nemo for the Complainant.

Date of hearing: 29th May, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1736 #

2006 P Cr. L J 1736

[Lahore]

Before Ijaz Ahmad Chaudhry, J

TALIB HUSSAIN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.839/B of 2006, decided on 21st February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.392, 395, 215, 216 & 109---Bail, refusal of--Complainant had no enmity or grudge against accused to falsely implicate him in the case---Accused was named in the case with specific role---Prima facie, sufficient material and evidence was on record to connect accused with commission of crime---Offence alleged against accused fell within ambit of prohibitory clause of S.497, Cr.P.C. and no reason was to grant bail to accused---Bail was refused.

Mehr Ahmad Bakhsh Bharwana for Petitioner.

Tasneem Ameen for the State.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1739 #

2006 P Cr. L J 1739

[Lahore]

Before Muhammad Nawaz Bhatti, J

MUHAMMAD RAMZAN and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.347 342, and Criminal Revisions Nos.368 and 367 of 2005, decided on 24th May, 2006.

Penal Code (XLV of 1860)---

----S. 302/34---Appreciation of evidence---Incident was an unseen occurrence and was a blind murder---Persons from whose field dead body of deceased was traced, had not been produced by prosecution as witnesses---Accused were not nominated in the F.I.R. and co-accused were involved on suspicion---Accused were declared innocent by the police during investigation and were placed in Column 2 of the challan---Motive as attributed to accused remained shrouded in mystery---Even otherwise motive was double edged weapon and same, by itself, would prove nothing---Medical evidence contradicted ocular evidence---Only extra judicial confession was available against accused in the shape of statements of prosecution witnesses---Extra judicial evidence was a weak type of evidence and could not be safely relied upon unless corroborated by some independent evidence of high standard---Kassi/offensive weapon, was recovered from the only accused about two months after occurrence---As the cause of death had not been declared by Doctor, recovery proceedings, could not be admitted in the eyes of law, especially when there was violation of S.103, Cr.P.C.---Accused were not found involved in the case as no material was available on the record to connect them with offence---Accused were acquitted and released giving them benefit of doubt.

Allah Bakhsh and another v. The State PLD 1978 SC 171; Mutiullah and others v. The State 1998 PCr.LJ 1599; Umar Draz v. State 1994 PCr.LJ 1942; Zafar Iqbal v. State 1985 PCr.LJ 1216 and Abdul Zahir and another v. The State 2000 SCMR 406 ref.

Altaf Ibrahim Qureshi for Appellants.

Kh. Qaiser Butt for the Complainant.

Muhammad Sabir Qureshi for the State.

Dates of hearing: 23rd and 24th May, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1745 #

2006 P Cr. L J 1745

[Lahore]

Before M. Bilal Khan and Tariq Shamim, JJ

Rana WARIS ALI----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1646/B of 2006, decided on 22nd March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51---Bail, refusal of---Only reason put forward by counsel for accused for grant of bail to accused was that accused had been falsely implicated in the case on account of political rivalry, but he had not been able to show as to how accused was involved in any politics and on whose instance case had been registered against the accused---Mere fact that in view of quantum of narcotics i.e. one Kilogram case fell in S.9(b) and not in 9(c) of Control of Narcotic Substances Act, 1997, was not a ground by itself for the grant of bail---Even S.9(b) of Control of Narcotic Substances Act, 1997, entailed punishment up to seven years and thus was non-bailable---In view of embargo as contained in S.51 of Control of Narcotic Substances Act, 1997, accused could not claim bail as a matter of right.

Mian Khalil-ur-Rehman for Petitioner.

Arif Ali Hazoor with Saifullah, S.-I. for the State.

2006 P Cr. L J 1757

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

WAZIR KHAN and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.1789 and Murder Reference No.794 of 2001, heard on 31st May, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)/34-Appreciation of evidence---Complainant had failed to point out any independent corroborative piece of evidence apart from the ocular account which had already been disbelieved by Trial Court to the extent of acquitted accused---Recovery of rifle from accused and pistol .30 bore from co-accused, had been shown to have been effected at the time of their arrest, but no empty was recovered from the spot and reports of Forensic Science Laboratory, were only to the effect that the weapons were in working condition---Said reports could not be considered as a corroborative piece of evidence as same did not disclose that the weapons were used in the incident---Recovery of weapons from accused, in circumstances, was legally useless----All accused were related inter se and with complainant party as well, but they had long-standing enmity between them---Previous enmity between the parties had, been established and same enmity was also between complainant and prosecution witness---Both eye-witnesses were interested witnesses and being inimical towards accused, they could not be relied upon unless their testimony was corroborated by some independent piece of evidence, which was lacking in the case---Both eye-witnesses had contradicted each other regarding manner in which they had arrived at the spot and it could not be said that they had established their presence at the spot---Ocular account furnished by said inimical, interested and chance witnesses who had failed to give sufficient explanation for their presence at the spot, was not sufficient 'to connect accused with commission of crime, without independent corroboration and their evidence was not worthy of reliance---Prosecution had failed to produce any independent and material witness---Motive alone was not sufficient to connect accused with crime as motive was always a double edged weapon---Prosecution, in circumstances, having not succeeded in proving case against 'accused beyond any shadow of doubt, conviction and sentences recorded against them by the Trial Court, were set aside and they were acquitted of the charge extending them benefit of doubt and they were set at liberty.

Ghulam Sikandar and another v. Mamarez Khan and others PLD 1985 SC 11; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758 and Iftikhar Hussain and another v. The State 2004 SCMR 1185 ref.

Masood Mirza for Appellant.

Kazim Iqbal Bhangu for the State (in Murder Reference No.794 of 2001).

Bashir Ahmad Gill for the State (in Criminal Appeal No.1789 of 2001).

Q.M. Saleem and M. Asghar Khan Rokhari for the Complainant.

Date of hearing: 31st May, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1766 #

2006 P Cr. L J 1766

[Lahore]

Before Muhammad Nawaz Bhatti, J

Haji HAQ NAWAZ KHARA----Petitioner

Versus

THE STATE and 2 others----Respondents

Criminal Miscellaneous No.34/Q of 2006, decided on 8th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11--Penal Code (XLV of 1860), S.380---Quashing of F.I.R.---Petitioner/accused had themselves stated that, notwithstanding the opinion of Investigating Officer declaring seven accused persons innocent and putting them in Column No.2, Challan had been submitted against them in the Trial Court---That being so Trial Court was quite competent to summon accused if material available on record so warranted---Petitioner's own case was that Trial Court had summoned said accused to face the Trial---Only grievance expressed thereagainst was that Trial Court had done so without recording any reason---Competency of Trial Court to summon accused, was not disputed and when it had summoned accused, said order could not be brushed aside simply because the Trial Court had not recorded reason for summoning accused for it; for it could be safely presumed that Trial Court did express its authority after perusal of material available on its record---No other ground having been urged to justify quashing of case, petition for quashing having no force was dismissed.

Miraj Khan v. Gul Ahmad and others 2000 SCMR 122; Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95; Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276; Naseem Baig v. M. Iqbal and others 1991 SCMR 315; PLD 1967 SC 461; Ghulam Muhammad v. Muzammil Khan and 4 others PLD 1967 SC 317; Akbar Hussain v. M.M.K.A. Zai 1968 SCMR 386; Nasir Ali v. Munshi Mehr Khan PLD 1981 SC 607; Raja Haq Nawaz v. Muhammad Afzal and 4 others 1971 SCMR 698 and Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan and others 1994 SCMR 2142 ref.

M.A. Ashfi for Petitioner.

Muhammad Qasim Khan, A.A.-G.

Muhammad Asif Rasheed for Respondent No.2.

Riaz Ahmad A.S.-I.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1769 #

2006 P Cr. L J 1769

[Lahore]

Before Ijaz Ahmad Chaudhry, J

KHALID----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.488-B of 2006, decided on 10th February, 2006.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 148 & 149---Bail, grant of---Further inquiry---Only one injury caused to injured was attributed to co-accused, brother of accused, but 17 nominated and 5/6 unknown persons armed with fire-arms, had been involved in the case by complainant---Whether accused had participated in the occurrence or not was question of further inquiry as nothing had been recovered from the possession of accused during investigation---Both the parties were related to each other---Person of accused was no more required as investigation had been completed and accused could not be kept in jail for an indefinite period only on the ground that his co-accused was fugitive from justice when accused had succeeded in making out a case of further inquiry---Accused was admitted to bail, in circumstances.

Rai Muhammad Tufail Khan for Petitioner.

Muhammad Akbar Malik for the Complainant.

Muhammad Rafique for the State.

Muhammad Nawaz, S.-I. with record.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1771 #

2006 P Cr. L J 1771

[Lahore]

Before Tariq Shamim, J

Mst. TAJ MAI----Petitioner

Versus

ILLAQA MAGISTRATE, SECTION 30, ALIPUR and 6 others----Respondents

Writ Petition No.398 of 2006, decided on 8th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 173---Penal Code (XLV of 1860), Ss.452 & 337-H(ii)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---West Pakistan Arms Ordinance (XX of 1965), S.13---Constitution of Pakistan (1973), Art.199---Constitutional petition---Cancellation of F.I.R.---Petitioner/complainant had challenged orders of Judicial Magistrate, whereby F.I.R. lodged by her was cancelled on police report---F.I.R. had been cancelled by Judicial Magistrate on the findings of the police that story of F.I.R. was baseless and concocted---Validity---After cancellation of F.I.R. through process of law, F.I.R. ceased to exist on the relevant register maintained under Police Rules, 1934---Submission of second report under S.173, Cr.P.C. in same F.I.R. which stood cancelled by the order of a competent Court, was uncalled for and in total disregard of law---Since order cancelling F.I.R. was not assailed by petitioner before any Court through revision or appeal or constitutional petition same had attained finality---Even otherwise present constitutional petition filed after a lapse of more than two years from impugned order, was hit by principle of laches-Order of Magistrate whereby report submitted under S.173, Cr.P.C. in the F.I.R. was consigned to the record as being not actionable, was also legal and did not suffer from any illegality or material irregularity calling for interference by High Court in its constitutional jurisdiction.

Khiali Khan v. Haji Nazir and 4 others PLD 1997 SC 304 and Secretary, Housing and Physical Planning Department, Lahore and others v. Muhammad Sadiq and others 2006 SCMR 922 ref.

Khalid Ibni Aziz for Petitioner.

Sheikh Ghias-ul-Haq for Respondents Nos.3 to 6.

M.R. Khalid Malik Addl. A.-G. with Muhammad Afzal S.-I.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1774 #

2006 P Cr. L J 1774

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD JAVED----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.7969/B of 2005, decided on 28th March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Customs Act (IV of 1969), Ss.178, 157(d), (c), (h), (8), (1), 156, 32(I), 16 & 2(5)---Bail, refusal of---Report submitted by the Trial Court had revealed that after framing the charge, evidence of prosecution witnesses was being recorded and case was likely to be concluded within six months---Since trial in case had already commenced, it was not appropriate to dilate upon factual aspect of the case lest it might prejudice case of either party---Petition stood disposed of with the direction by the High Court to the Trial Court to accelerate proceedings and conclude same within four months instead of six months.

1996 PCr.LJ 347 ref.

Syed Kazim Bokhari for Petitioner.

Khawar Ikram Bhatti and Muhammad Khalid for Respondent.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1775 #

2006 P Cr. L J 1775

[Lahore]

Before M. Bilal Khan, J

IRFAN-UL-HAQ and 2 others----Petitioners

Versus

IFTIKHAR HUSSAIN and 4 others----Respondents

Writ Petition No.2896 of 2006, decided on 8th June, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Constitution of Pakistan (1973), Art.199---Constitutional petition--Powers and duties of Justices of Peace---Registration of criminal case against police officials by order of Justice of Peace---On application of respondent, who along with other respondent, was involved in gambling case, Additional Sessions Judge/Ex-officio Justice of Peace had ordered registration of a criminal case againstpetitioners/police officials and directed that matter be investigated by a fair and impartial honest Police Officer of not less than the rank of Superintendent of Police---Validity---Counsel for the petitioners had not been able to point out any irregularity much less any illegality in the impugned order which could warrant interference by High Court in its constitutional jurisdiction---Ex-officio Justice of Peace could refuse registration of a case only if police report disclosed no justifiable reason for registering a case---No absolute embargo existed against the power of Ex-officio Justice of Peace that in all circumstances, in the event of a negative police report, he could not order registration of a case---Reasons advanced by Additional Sessions Judge/Justice of Peace in disagreeing with the police report, were convincing, plausible and persuasive---High Court, while exercising its jurisdiction under Art.199 of the Constitution, could not substitute its own opinion for that of Ex-officio Justice of Peace in circumstances.

Khizer Hayat and others v. Inspector-General of Police Punjab, Lahore and others PLD 2005 Lah. 470 ref.

Saif-ul-Malook for Petitioners.

Malik Saeed Hassan for Respondent No.1.

Ch. Aamir Rehman Addl. A.-G. for the State.

Rehmat Ali S.-I. Police Station Civil Lines, Sialkot with police file.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1779 #

2006 P Cr. L J 1779

[Lahore]

Before Muhammad Nawaz Bhatti, J

NOOR KHAN----Petitioner

Versus

FALAHUD DIN and another----Respondents

Criminal Miscellaneous No.76/CB of 2006, decided on 1st June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.489-F---Application for cancellation of bail---Delay of eight months in lodging F.I.R.---Respondent/accused was not a previous convict---No proof was on the file to show that accused had misused concession of bail or any likelihood was of his abscondence---Offence against accused did not fall in the prohibitory clause of 497, Cr.P.C.---Civil litigation was proceeding between accused and petitioner/complainant and it was yet to be seen whether disputed cheque was issued with criminal intention to deceive the complainant---Challan had been submitted in the Court and the trial had commenced---Considerations for cancellation of bail were different from the considerations for the grant of bail---Strong and exceptional grounds were needed for cancellation of bail after bail was granted by competent court---Bail had been granted to accused for valid reasons and it was not a fit case for cancellation of bail as strong and exceptional grounds which were needed to get it cancelled were not available---Trial Court had rightly exercised jurisdiction in the matter of grant of bail to accused---Petition for cancellation of bail, was dismissed.

Sakhawat Ali v. Khalid Mahmood and 7 others PLD 1994 Lah. 377; Unilever Pakistan Limited through Manager v. Muhammad Rafique and another 2005 YLR 686; Major Anwar-ul-Haq v. The State PLD 2005 Lah. 607; Haq Nawaz Khan v. The State 2006 YLR 50; Muhammad Ramzan v. Taj Muhammad and another 1996 PCr.LJ 2006; Mst. Sharifan v. Manzoor Hussain 2005 PCr.LJ 1008; Bashir Ahmad v. Mirza Muhammad Ayoub 1991 MLD 579 and Raja Zahoor Ahmad v. State 2005 PCr.LJ 1713 ref.

Faiz Bakhsh Khan Langah for Petitioner.

Noor Khan for Respondent No.1.

Sh. Javed Rashid for the State.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1783 #

2006 P Cr. L J 1783

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD IQBAL BHATTI----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.3674/B of 2006, decided on 26th June, 2006.

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. showed allegation against accused was that he, along with other co-accused, had received money from complainant on the pretext of sending him abroad for employment, but data available on record was absolutely silent with regard to receiving of money by accused himself---Entire case was that said amount was received by co-accused and that amount was paid upon asking of accused---Question as to how far accused could vicariously be liable for commission of offence, was a one which called for further inquiry, entitling accused to concession of bail.

Waqar Ahmed for Petitioner.

Muhammad Hussain Chhachhar Standing Counsel.

Muhammad Javed Sultan, S.-I., F.I.A.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1784 #

2006 P Cr. L J 1784

[Lahore]

Before M. Bilal Khan, J

MAQSOOD ALI----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.1869/B of 2006, decided on 29th March, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss.109, 382 & 440---Pre-arrest bail, confirmation of---Further inquiry---Section 382, P.P.C. having since been deleted, S.440, P.P.C. had been inserted---According to Investigating Officer, no theft had occurred, however underground cable had been damaged---Investigating Officer stated that accused was not present at the place of occurrence and had only abetted the offence---Two co-accused who were arrested, have since been released on bail by Judicial Magistrate---No recovery was to be effected from accused as he had joined investigation---Culpability of accused under S.109, P.P.C., called for further inquiry within the meaning of subsection (2) of S.497, Cr.P.C.---Ad interim pre-arrest bail granted to accused, was confirmed, in circumstances.

(M. Bilal Khan, J) Ghulam Haider for Petitioner.

Mian Muhammad Sajjad for the State.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1788 #

2006 P Cr. L J 1788

[Lahore]

Before Tariq Shamim, J

MUHAMMAD HANIF----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.2028/B of 2006, decided on 4th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324/34---Bail, refusal of---Injured complainant was shot by accused and his co-accused on both legs and the injuries ascribed to accused and his absconding co-accused were declared to be fire-arm injuries by Medical Officer---Final result of injuries on the basis of X-rays showed shattering of Section 324, P.P.C. having not been deleted, offence against accused fell within the prohibitory clause of S.497, Cr.P.C.---Eye-witnesses while appearing before the police, had fully supported case of prosecution and Investigating Officer, after a thorough investigation, found accused fully involved in the case---Recovery of .30 bore pistol had also been effected from accused---F.I.R. was promptly lodged and it was a daylight occurrence---Accused remained absconder for more than a year---Co-accused was still at large---Police record had revealed that accused was a record holder and five F.I.Rs. under various sections of P.P.C., stood registered against him---Such fact was sufficient to show that accused was habitual offender and involved in serious and heinous offences---Tentative assessment of evidence on the record had shown that ample evidence was available to connect accused with commission of offences mentioned in F.I.R.---Bail was declined in circumstances.

Muhammad Anwar Bhatti for Petitioner.

Saifullah Khalid for the State.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1790 #

2006 P Cr. L J 1790

[Lahore]

Before Muhammad Nawaz Bhatti, J

Mst. KALSOOM BIBI and another----Petitioners

Versus

S.H.O. POLICE STATION JAMPUR through D.P.O., Rajanpur and 3 others----Respondents

Writ Petition No.825 of 2005, decided on 5th July, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 265-K & 249-A---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.7 & 11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of proceedings---Scope---Petitioners were booked under Ss.7 & it of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Petitioners sought quashment of proceedings against them on grounds; that F.I.R. was lodged against petitioners and other co-accused a year after alleged abduction; that female petitioner was sui juris who contracted marriage out of her own free-will; that petitioners were living as husband and wife, having a suckling baby; that nobody could be permitted to interfere in their matrimonial life---Validity---Delay in registration of F.I.R. in such-like case where family honour was involved, was of no consequence, for the people, before approaching police, exhaust all other sources---Investigation of case was complete and challan had been submitted in Court of competent jurisdiction where petitioners might seek alternate remedy---High Court could quash proceedings if it were satisfied from cogent material that prosecution was launched for improper motive to harass accused or its continuance would be abuse of process of law---In presence of alternate remedy under Ss.265-K and 249-A, Cr.P.C., the remedy for quashing the proceedings could not be availed---Quashing of proceedings at early stage was neither permissible nor preferable and every criminal case was to be allowed to proceed on its own merits---Constitutional petition was dismissed.

1997 MLD 1234; Naseem Baig v. M. Iqbal and others 1991 SCMR 315; PLD 1967 SC 461; Ghulam Muhammad v. Muzammil Khan and 4 others PLD 1967 SC 317; Akbar Hussain v. M.M.K.A. Zai 1968 SCMR 386; Nasir Ali v. Munshi Mehr Khan PLD 1981 SC 607 and Raja Haq Nawaz v. Muhammad Afzal and 4 others 1971 SCMR 698 rel.

Ch. Riaz-ul-Kareem for Petitioner.

Muhammad Qasim Khan, A.A.-G. and Pervaiz Akhtar, Inspector.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1795 #

2006 P Cr. L J 1795

[Lahore]

Before Ijaz Ahmad Chaudhry, J

ABDUR REHMAN alias REHMAN----Petitioner

Versus

D.I.-G. and others----Respondents

Writ Petition No.16868/Q of 2005, decided on 10th October, 2005.

Constitution of Pakistan (1973)---

----Art. 199---Penal Code (XLV of 1860), S.401---Constitutional petition--- Quashing of F.I.R.---Allegation against accused and his co-accused was that they had intention to commit the offence---Complainant and S.H.O. of Police Station concerned had failed to show as to how they came to know about the intention of accused for commission of offence as alleged in F.I.R.---Such was a clear case of abuse of process of law, misuse or powers and mala fide by the police as the police had failed to show the reason for registration of the case or how the intention of accused/petitioner was known to the police about the commission of the offence---Version of petitioner/accused that he was being victimized by the police mala fide for some ulterior motive, was accepted by the High Court and F.I.R. registered against him under S.410, P.P.C. at Police Station concerned, was quashed accordingly.

Rana Habib-ur-Rehman Khan for Petitioner.

Syed Najam-ul-Hassan Gill, A.A.-G. for the State.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1800 #

2006 P Cr. L J 1800

[Lahore]

Before Khawaja Muhammad Sharif, J

KABEER AHMAD and others----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.2309/B of 2006, decided on 4th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Bail before arrest, refusal of---Counsel for accused had submitted that one of prosecution witnesses had exonerated accused through an affidavit---Apart from said witness, there was another eye-witness of the case i.e. a Foot Constable, who had fully implicated the accused---Challan had been submitted after having completed proceedings under Ss.87/88. Cr.P.C.---Pre-arrest bail was moved after about four months of the occurrence---Accused, in circumstances, remained fugitive from law during said period---Considerations for the grant of hail before arrest and bail after arrest were altogether different---Ingredients for the grant of bail before arrest were very much lacking in the present case---Bail petition was dismissed.

Hassan Akhtar Chaudhry for Petitioners.

Ch. Muhammad Hanif Khatana, Addl. A.-G. Punjab for the State with Iqbal, S.-I. with record.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1802 #

2006 P Cr. L J 1802

[Lahore]

Before Muhammad Nawaz Bhatti, J

ZAHID HUSSAIN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1638/B of 2006, decided on 22nd June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 337-A(iii), 337-F(i) & 34---Bail, grant of---Complainant lodged F.I.R. alleging therein that one brother of complainant was murdered and other was injured by accused with hatchet blows---Accused/petitioner sought bail on grounds; that no recovery was effected from him and that there was contradiction in Medico-legal Report and ocular account, benefit of which could be given to accused even at bail stage---Scope---Accused/petitioner was attributed hatchet blows but according to Medico-legal Reports neither deceased nor the injured received any sharp-edged injury---Clear-cut contradiction existed in Medico-legal Reports and ocular account---No recovery was effected from accused---Accused having been found innocent during police investigation, was placed in Column No.2 of the challan---Finding of police though was not binding on Court, yet same was relevant at bail stage especially when finding was with regard to innocence of accused---In previous bail petition filed by accused, Trial Court had been directed to conclude trial within prescribed time but Trial Court failed to comply with the direction---Delay in conclusion of trial occurred on account of mala fide on the part of t prosecution---If police or complainant indulged in delaying tactics or frustrated the powers of Trial Court to proceed with the matter, it would be the duty of Court to come to the rescue of accused person and save him from prolonged and unwarranted detention---Bail petition was allowed.

Syed Abdul Baqi Shah v. The State 1997 SCMR 32; Bashir Ahmad v. State 2005 PCr.LJ 967 and Fida Hussain alias Shamla v. The State 1982 PCr.LJ 1201 rel. .

Ch. Muhammad Akhtar Ghuman for Petitioner.

Haji Javed Iqbal for the State and Asghar Ali S.-I.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1807 #

2006 P Cr. L J 1807

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD RAFIQ----Appellant

Versus

BURKHA and 11 others----Respondents

Criminal Appeal No.1111 of 2005, decided on 1st November, 2005.

Penal Code (XLV of 1860)---

----Ss. 302, 364, 201 & 109---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11---Criminal Procedure Code (V of 1898), Ss.417 421---Appeal against acquittal---Appreciation of evidence---F.I.R. in the case had been lodged with a delay of about six months---Murder in issue had remained un-witnessed and in order to establish its case against accused persons, prosecution had relied only upon different pieces of circumstantial evidence---Alleged recovery of weapon of offence "Dattar" was legally inconsequential because said weapon was not stained with blood---Extra-judicial confession allegedly made by accused had remained far from being proved as both prosecution witnesses who had to testify in support of same had not been produced by prosecution before the Trial Court---Alleged extra-judicial confession allegedly made by accused persons had the trappings of a joint confession which was inadmissible in evidence---Driver of taxicab cited in calendar of witnesses who appeared in the Court, had turned hostile---Accused could not have been convicted on the basis of last-seen evidence alone---Dead body of deceased had never been recovered and no post-mortem examination was available on record, in absence of any post-mortem examination, date, time of murder and even the cause of death could not be ascertained---Apart from that no other corroborative piece of evidence was available on record to prove its case against accused beyond any reasonable doubt---Appeal against acquittal in circumstances, was summarily dismissed under S.421, Cr.P.C.

Ch. Azeem Sarwar for Appellant.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1813 #

2006 P Cr. L J 1813

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

NASIR----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.95/J and Murder Reference No.212 of 2001, decided on 4th May, 2006.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Sentence, reduction in---Both complainant and other prosecution witness who were closely related to deceased, were chance witnesses---Place of occurrence was stated two acres away from the village Abadi whereas 'Dhari' of complainant was quite far away from place of occurrence and that was not shown anywhere in the site plan of the place of occurrence---Claim of said witnesses regarding their presence in the adjoining fields had been proved to be false---F.I.R. had been lodged at the police station and in such a situation it was more likely that F.I.R. had been registered after deliberation by complainant party and preliminary investigation by the police at the spot---Prosecution's own case was that accused had no ostensible reason to commit murder of deceased who happened to be the mother-in-law of accused---Motive set up by prosecution, in circumstances, remained far from being established---No corroboration to the ocular account was forthcoming---Recovery of a gun .12 bore from possession of accused, was legally inconsequential as no crime empty had been recovered from the place of occurrence so as to connect recovered gun with alleged murder---Said recovery, in circumstances was of no corroborative value---Medical evidence had contradicted and discredited eye-witnesses---Post-mortem examination of the dead-body had been conducted with a noticeable delay and said delay had not been occasioned by the Doctor---Eye-witnesses had failed to receive independent corroboration from the motive and recovery or support from the medical evidence---If prosecution failed to establish its version of incident, then the version of incident put forward by defence, was to be accepted as correct---Accused had fired only once and had chosen a non-vital part of the body of deceased, his case therefore, attracted the provisions of S.302(c), P.P.C. and not those of S.302(b), P.P.C.---Appeal was partly allowed by High Court---Conviction and sentence of accused recorded by the Trial Court for an offence under S.302(b), P.P.C., were set aside and instead accused was convicted and sentenced for offence under S.302(c), P.P.C.---Accused was sentenced to the period of imprisonment already undergone by him.

Gauhar Razzaq Awan for Appellant.

Ch. Nazir Ahmad for the State (in Criminal Appeal No.95/J of 2001).

Sh. Khalid Habib for the State (in Murder Reference No.212 of 2001).

Date of hearing: 4th May, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1827 #

2006 P Cr. L J 1827

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD ARIF----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.384/J and Murder Reference No.27-T of 2005, decided on 28th June, 2006.

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

---Ss. 302(b), 324, 353, 148 & 149---Anti-Terrorism Act (XXV of 1997), S.7(a)---Appreciation of evidence---Benefit of doubt---Direct evidence, non-production of---Effect---Allegation against accused/appellant was that he along with co-accused committed murder of three police officials, causing fire-arm injuries to the members of police; raiding party--In cross-firing between the accused/dacoits and police accused/appellant was arrested, three co-accused were killed and four co-accused escaped---Accused/appellant was convicted and sentenced to death, imprisonments of various descriptions and fine by Trial Court---Three eye-witnesses produced by prosecution to prove ocular account had admittedly not seen any of the accused firing at police nor any eye-witness had specifically stated that accused appellant had been firing at police party at the time of incident---Statement of eye-witnesses was only to the effect that the accused started firing. from inside the house which resulted in death of three police officials and caused injuries to two police officials in the street---Weapon of offence which accused 'was allegedly carrying with him at the time of incident was also not mentioned in the statements of eye-witnesses---Only evidence against the accused/appellant was that accused was apprehended on the spot, while in possession of pistol---Names of police officials, who arrested the accused were not disclosed---Even the place from where accused had been arrested was not mentioned in site-plan---Evidence of three eye-witnesses alone was not sufficient to prove the charge against accused---Prosecution did not produce sufficient evidence regarding arrest of accused from the spot nor recovery of weapon from accused was proved---Prosecution story was that dacoits started firing at police from inside the house which was taken on rent by accused/appellant but neither the owner of the house nor any person from said locality was joined in investigation nor produced before Trial Court though prosecution witnesses in cross-examination admitted the presence of public persons on the spot, at time of incident---Site-plan falsified the story of prosecution for the points indicating positions of accused while firing at police, dead bodies of accused and police officials, fell in the street instead of the house---Incident appeared to have not taken place in the manner narrated by prosecution witnesses and certain facts had been suppressed by eye-witnesses---Report of Forensic Science Laboratory could not be used against accused/appellant as weapon allegedly recovered from Accused along with those used by accused who died during the incident including crime empties were sent to the office of Forensic Science Laboratory on the same day and said report of Laboratory could not be taken into consideration as a corroborative piece of evidence---Names of accused who ran away from the spot were not brought on record during police investigation or trial which showed that police had not spoken the whole truth---Case of prosecution was doubtful---Prosecution failed to prove the case against accused---No direct evidence had been produced by prosecution to prove actual participation of accused in the occurrence--Mere heinousness of crime was not sufficient to record conviction against accused---Benefit of even slightest doubt was to go to 'accused---Judgment of conviction and sentence passed against accused was set aside---Accused was acquitted.?

(b) Criminal trial---

----Benefit of doubt, rule of---Rule of benefit of doubt is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law---Rule of benefit of doubt is based on the maxim that "it is better that ten guilty persons be acquitted rather than one innocent person be convicted"; it means that utmost care should be taken by Court in convicting an accused---Rule of benefit of doubt is anti-thesis of haphazard approach for reaching a fitful decision in a case---Said rule occupies pivotal place in Islamic Law and is enforced rigorously in view of the saying of Holy Prophet (p.b.u.h.) "Mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing innocent".?

Masood Sadiq Mirza for Appellant at State expense.

Ch. Ghulam Hussain, Special Prosecutor A.T.A. for the State.

Dates of hearing: 27th and 28th June, 2006.

2006 P Cr. L J 1863

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD RAFIQ and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.2299/B of 2006, decided on 14th April, 2006.

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

----S. 497---Penal Code (XLV of 1860), S.324---Bail, refusal of---Accused was attributed a hatchet injury on the head of the injured and one of the co-accused was attributed a Sota injury on right forearm of injured---Recovery of respective weapons of offence had been effected from accused persons---Accused had been found guilty during course of investigation---Injured in, his statement under S.161, Cr.P.C. had fully implicated both accused with commission of offence---Non-mentioning of specific attribution of injuries to accused in the statement made by injured under S.161, Cr.P.C., appeared to be a negligence or inefficiency on the part of the Investigating Officer---Another co-accused, who was granted bail, was not attributed any injury to any body, his case, in circumstances was distinguishable from the case of said two accused persons---Accused who were connected with commission of offence which fell within the prohibitory clause of S.497(1), Cr.P.C., being not entitled to bail, their bail petition was dismissed.

Sardar Munir Ahmad Dogar v. The State PLD 2004 SC 822; Asmatullah Khan v. Bazi Khan PLD 1988 SC 621 and Nasreen v. Fayyaz Khan PLD 1991 SC 412 ref.

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

----S. 497(2)---Further inquiry---Scope and condition for---Every hypothetical question, which could be imagined, would not mean that it was a case of further inquiry simply for the reason that it could be answered by the Court subsequently after evaluation of evidence---Condition laid down in clause (2) of S.497, Cr.P.C., was that there should be sufficient grounds for further inquiry into guilt of accused, which would mean that question should be such which had nexus with the result of the case and could show or tend to show that accused was guilty of the offence with which he was charged.

Muhammad Saleem Virk for Petitioners.

Tabassam Ansaar for the State with Maqbool, A.S.-I. with record.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1870 #

2006 P Cr. L J 1870

[Lahore]

Before Ijaz Ahmad Chaudhry, J

SAFDAR and 3 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.58, 1188 and Criminal Revision No.46 of 2004, heard on 13th June, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b), 109, 148 & 149---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Benefit of doubt---Recovery of weapons---Non-joining of witnesses from locality---Allegation against accused/appellants was that they had committed pre-planned murder of deceased after hatching a conspiracy with co-accused--Trial Court, while convicting and sentencing accused/appellants to life imprisonment, acquitted the co-accused who had allegedly hatched conspiracy---Validity---Witnesses mentioned in F.I.R. were not residents of place of incident---Place of occurrence was surrounded by many shops and houses but none from the locality was joined in police investigation---Eyewitnesses were chance witnesses and to establish their presence on the spot they were bound to give reasonable explanation---When confronted with their previous statements both eye-witnesses had made improvements in their statements on material points which led to inference that eye-witnesses were not present on the spot and they were introduced as eye-witnesses later on, on being close relatives of deceased---Such eye-witnesses could not be relied upon outright for the reason that they had no previous, enmity with accused party---Eyewitnesses, after having made improvements in their statements, proved themselves to be false---Eye-witnesses had no justification for their presence on the spot at the time of incident---Involvement of accused in crime on basis of suspicion could not be ruled out---Medical evidence was in contradiction with ocular account as there were blackening and burning spots on entry wounds which showed that fires were shot from a distance of 6 inches to 3 feet but the distance from which accused shot fires at deceased had been shown to be 5-1/2 feet---Mere non-mentioning of motive in F.I.R. though was not sufficient to exonerate accused if accused was otherwise proved to have been connected with commission of offence but in the present case ocular account which was not confidence-inspiring, could not be corroborated by any other piece of evidence---Crime empties did not match with weapons according to ocular account---Report of Forensic Science Laboratory showed that four empties were matched with weapon recovered from one of the accused but in F.I.R. accused was alleged to have made only two fires at deceased---Witnesses had made dishonest improvement at trial to the effect that accused had also made two fires in the air---Recovery of weapons had been effected in a thickly-populated area but only police officials witnessed recovery which was in violation of S.103 of Cr.P.C.---Place of recovery, moreover, was not exclusively owned and possessed by the accused---Recovery evidence was thus inconsequential---Accused were not closely related inter se and had no common object or motive to commit murder of deceased---All family members including father and two real brothers of one of the accused were involved in the case by complainant for hatching conspiracy---Witnesses of conspiracy were disbelieved by Trial Court---Prosecution failed to prove its case against accused/appellants beyond reasonable doubt---Convictions and sentences recorded against accused by Trial Court were set aside---Appeals were allowed---Appellants were acquitted.

Liaqat v. State 2006 SCMR 33; Mustahsam Mahmood v. State 2004 MLD 1769; Safdar Jameel and another v. The State 2005 SCMR 1376; Mst. Dur Naz and another v. Yousuf and another 2005 SCMR 1906; Babar Shah v. State 2006 PCr.LJ 174; Mirza Khan and another. v. The State 2005 SCMR 1110; Mattiullah Khan v. The State 2005 SCMR 1626; Mukhtar Ahmad and others v. State PLD 2004 SC 563; Ghulam and another v. Murtaza and another 2005 SCMR 1318 and Muhammad Aslam and another v. State 2006 SCMR 228 ref.

Sardar Muhammad Latif Khan Khosa, Shahid Zaheer Syed and Hasnat Ahmad Khan for Appellants.

Syed Sajjad Sarwar Gillani for the Complainant/Petitioner (in Criminal Revision No.46 of 2004).

Imtiaz Ahmad Chaudhry for the State.

Date of hearing: 13th June, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1884 #

2006 P Cr. L J 1884

[Lahore]

Before Ijaz Ahmad Chaudhry, J

FARYAD ANJUM MASIH----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.2346/B of 2006, decided on 6th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Bail, refusal of---Accused during investigation made statement before the police that he used to deal in the sale and purchase of liquor---Accused along with co-accused was apprehended at the spot and recovery of 19 bottles of' liquor, had itself shown that same was kept for the purpose of sale---Accused, prima facie, was involved in the case for heinous offence and he had failed to show any reason for his false involvement in the case by the police---Report under S.173, Cr.P.C. had been submitted in the Court and only a few witnesses had been cited by the police in the calendar of witnesses, which had shown that there was possibility of earlier conclusion of the trial---Offence against accused though did not fall within the prohibitory clause of S.497, Cr.P.C. and grant of bail in such-like cases was a rule and refusal was an exception, but it would not mean that offence had become bailable---Discretion, still rested with the Court, which had to be exercised judiciously keeping in view the facts and circumstances of each case---Offence allegedly committed by accused was in fact against society and there were chances of repetition of the offence, if accused was released on bail---Case against accused fell within the exception and no good ground was shown for release of accused on bail.

Muhammad Akram v. The State 2005 PCr.LJ 454; Nazim Hussain and others v. The State 2005 PCr.LJ 602 and Bashir Ahmad and others v. The State 2005 PCr.LJ 1754 ref.

Muhammad Ashfaq Mughal for Petitioner.

Tariq Waheed Khan for the State.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1898 #

2006 P Cr. L J 1898

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Sh. Javed Sarfraz, JJ

KHAYBER ALI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.133/J of 2000, decided on 6th April, 2006.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S.561-A---Accused, who was convicted, was sentenced to imprisonment for life and fine of Rs.10,00,000, but in the judgment, there was no mention of period of imprisonment which accused was to suffer in case of default of payment of said fine---High Court on appeal maintained conviction, but reduced sentence to period to which accused had already undergone, but no order was passed in respect of fine or the period of imprisonment in lieu thereof---Application for remission of fine, filed by accused was withdrawn, but present grievance petition of accused was not brought to the notice of the Court at the relevant time---Omission appeared to be of mere clerical nature---High Court, treating the application of accused as under S.561-A, Cr.P.C. and exercising inherent powers, could rectify such omission---To meet ends of justice, High Court reduced the fine from Rs.10,00,000 to Rs.25,000 and in default of payment of fine, accused would undergo two months' S.I.---Except for such change, judgment of High Court remained unaltered.

Nemo for Petitioner.

Sarfraz Ali Khan, Asstt. A.-G. for the State.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1900 #

2006 P Cr. L J 1900

[Lahore]

Before Asif Saeed Khan Khosa, J

SHAUKAT ALI SAGAR----Appellant

Versus

STATION HOUSE OFFICER, POLICE STATION BATALA COLONY, FAISALABAD and 5 others----Respondents

Writ Petition No.345 of 2006, heard on 27th January, 2006.

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

----S. 561-A---Penal Code (XLV of 1860), Ss. 405, 406 & 506---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of F.I.R.---Criminal breach of trust---Offences not made out by facts alleged in F.I.R.---Complainant had given money to accused/petitioner for purpose of doing business and giving profit to complainant therefrom---On failure of accused to return money/profit to complainant, the latter lodged F.I.R. against accused---Validity---Offence of criminal breach of trust defined under S.405, P.P.C. punishable under S.406, P.P.C. was to be committed if property (money) was given on trust and same property was not returned---If a person gave money to other for purpose of investment in business and equivalent amount of money along with profit was to be returned by the latter then such business transaction was not to attract provisions of Ss.405 & 406 of P.P.C.---Such transaction was not of entrustment of property but simply one of investment of property---No date, time or place of criminal intimidation by accused was given in F.I.R.---No relevant details of criminal intimidation were brought on record of investigation---No one could be prosecuted on the basis of vague and unspecified allegations---Trial Court, in case of submission of challan, would not be in a position to frame charge against accused--Complainant had tried to convert a civil and business dispute into a criminal case in order to extract concessions in civil matter---F.I.R. was quashed.

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

----S. 561-A---Penal Code (XLV of 1860), S.506---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---No date, time or place of criminal intimidation by accused was given in F.I.R.---No relevant details of criminal intimidation were brought on record of investigation---No one could be prosecuted on the basis of vague and unspecified allegations---Trial Court, in case of submission of challan, would not be in a position to frame charge against accused---F.I.R. was quashed.

Nadeem Shibli for Petitioner.

Syed Hasnain Kazmi, Asstt. A.-G. for Respondents Nos.1, 2, 4 and 5 with Muhammad Rashid, Inspector, Legal, Faisalabad and Muhammad Khan, S.-I. with record.

Respondent No.6 in person.

Nemo for Respondent No.3.

Date of hearing: 27th January, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1902 #

2006 P Cr. L J 1902

[Lahore]

Before Ijaz Ahmad Chaudhry, J

SHAUKAT ALI----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1945/B of 2006, decided on 29th March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Penal Code (XLV of 1860), S.452---Bail, refusal of---Accused had been named in F.I.R. with specific role of committing Zina-bil-Jabr with a girl aged about 17/18 years in her house on pistol point after scaling over the wall when complainant and other family members were away from the house---Mere delay in lodging F.I.R. was not fatal to prosecution story as in such-like cases honour of the family was involved and before getting registered the case, complainant had to think over hundred times about its consequences---No previous enmity or grudge existed on the part of complainant for false implication of accused by putting the future life of his daughter at stake---Victim girl had also got her statement recorded under S.161, Cr.P.C. in which she had supported the contents of F.I.R.---Sufficient material was available on record to prima facie connect accused with commission of offence which fell within the ambit of prohibitory clause of S.497, Cr.P.C.---Counsel for accused had failed to bring the case within purview of further inquiry---Bail petition being devoid of any force, was dismissed, in circumstances.

Azmat Hussain Sidhu for Petitioner.

Syed Akmal Hussain Naqvi for the State.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1904 #

2006 P Cr. L J 1904

[Lahore]

Before Syed Sajjad Hussain Shah, J

RANGA----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.3017/B of 2006, decided on 17th May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 109, 148 & 149---Bail, refusal of---Accused was named in F.I.R. with specific role of firing at deceased who had suffered firearm injuries attributed to him---Prosecution witnesses had also implicated accused who was also involved in 16 other criminal cases at different police stations before registration of present case against him---Sufficient material was available on record to connect accused with commission of offence---Contention that Investigating Agencies had declared accused innocent, was repelled because opinion of police was not binding on High Court while deciding bail application---Court was required to take decision on the basis of material available on record and should avoid taking decision merely on the basis of investigation reports and entry of the name of accused in Column No.2 of challan, which could be relevant, but not sole criteria for grant of bail---Involvement of accused in the case, prima facie, had been established in the commission of offence---Bail was declined.

Muhammad Din v. The State 1998 SCMR 1 ref.

Rai Zameer-ul-Hassan for Petitioner.

Zulfiqar Ali Noon for the Complainant.

Rao Iqbal Hussain Khan for the State with Muhammad Sharif, S.-I. with record.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1907 #

2006 P Cr. L J 1907

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Sh. Javaid Sarfraz, JJ

USMAN ALI alias IMRAN alias BILLI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.331-T and Murder Reference No.19-T of 2004, decided on 10th May, 2006.

Penal Code (XLV of 1860)---

----Ss. 302, 365-A & 201---Anti-Terrorism Act (XXVII of 1997), S.7(a)(e)---Appreciation of evidence---Benefit of doubt---Entire case of prosecution rested upon the circumstantial evidence in the terms of; identification of accused through voice on telephone; extra-judicial confession of accused; recovery of dead body of deceased, his sleepers and two ropes (crime weapons) at the instance of accused; motive for occurrence; and medico-legal reports---Complainant had claimed that he had identified voice of accused when he demanded ransom money for life of his deceased son on telephone---Complainant never noticed number of caller who had demanded ransom money and F.I.R., and data available on record were silent in that regard---Investigating Officer, during investigation had not made any attempt to collect any data about telephone from which accused allegedly had called complainant for payment of ransom money---Even otherwise it was not easy to identify a person through his voice on telephone and that type of evidence could not be accepted, except with the pinch of salt---Statedly accused visited prosecution witness and confessed his guilt where given up witness was also present; it could not be understood as to why accused would confess his guilt before said witnesses when no evidence was on record to show that said witnesses were influential people of the area who could pressurize complainant for a compromise with accused---Extra-judicial confession, otherwise was a weak type of evidence which was normally concocted when there was no direct evidence available to connect accused with the commission of crime---None of prosecution witnesses except Investigating Officer had stated that dead body of deceased or the sleepers of the deceased were recovered at the pointation/instance of accused---Recovery evidence relied upon by prosecution being full of doubts was also not worthy of reliance---Motive of occurrence as spelt out from the data available on record was the abduction of child for the purpose of ransom, but in the absence of any cogent evidence, prosecution had also failed to prove that limb of its case as well---Prosecution had failed to connect all the links of chain connecting accused with the commission of said heinous offence---Case of prosecution was full of' doubts and accused was entitled to get benefit of the same---Conviction and sentence awarded to accused by the Trial Court was set aside and accused was acquitted and released extending him benefit of doubt.

Miss Shehzadi Parveen for Appellant.

Ch. Ghulam Hussain Special Prosecutor A.T.A. for the State.

Date of' hearing: 10th May, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1914 #

2006 P Cr. L J 1914

[Lahore]

Before Muhammad Farrukh Mahmud, J

MULAZIM HUSSAIN and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.391 of 2003, heard on 4th July, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Appreciation of evidence---Benefit of doubt---Accused/appellants were tried and sentenced to life imprisonment by Trial Court on allegation of murder of deceased---Occurrence took place in the midnight, in a field far away from houses of complainant and eyewitnesses---Site plan showed eye-witnesses saw occurrence from a distance of 75 feet and only source of light was torch held by complainant---Torch was neither handed over to Investigating Officer when the latter reached the spot, nor it was produced before Investigating Officer---In order to remove objection raised by Prosecution Branch, memo. of recovery of torch was prepared about two months after occurrence---Both accused were arrested ten days after occurrence and they did not go into hiding after occurrence---No reliance could be placed on recovery evidence because accused had ample time to destroy blood-stained hatchet and clothes allegedly recovered from accused---Accused could have easily washed clothes and blade of hatchet---No independent person was associated with recovery proceedings---Witness produced by prosecution to prove recoveries was an eye-witness who was related to deceased---No reliance could be placed on recovery of Soti because it was not stained with blood---As to motive, accused had complained about behaviour of deceased a year prior to occurrence but nothing happened during whole year---Deceased accompanied accused at odd hours of night which fact itself took out the sting of motive---Motive was a double-edged weapon which cut both ways, it was likely that in the background of motive accused/applicants were implicated in the case after recovery of dead body from an open field---Presence of eye-witnesses at the time of occurrence was not free from doubt---Single doubt arising out of circumstances of case would be enough to record acquittal of accused---While extending benefit of doubt to accused, they were acquitted---Appeal was allowed.

Muhammad Aslam Khan Dhukkar for Appellants.

Abdul Rahman Tayyab for the Complainant.

Zulfiqar Habib for the State.

Date of hearing: 4th July, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1920 #

2006 P Cr. L J 1920

[Lahore]

Before Ijaz Ahmad Chaudhry, J

KHALID FAROOQ and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.612, 646, 661 and Criminal Revision No.358 of 2000, heard on 2nd June, 2005.

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

----Ss. 302(b) & 34---Appreciation of evidence---Matter was reported to the Police by complainant with promptitude---Complainant, who was resident of same locality, had explained his presence at the spot at the time of occurrence---Prosecution witness, who was also resident of same locality, had also explained his presence at the spot---Both said witnesses were subjected to lengthy cross-examination---Nothing was on record to contradict statements of said two witnesses regarding their presence at the spot at the time of incident as the purpose of presence of said witnesses could not be shattered by the defence during cross-examination---Minor contradictions in their statements regarding make of fire-arm were not sufficient to discredit their version regarding involvement of accused as he was single accused who allegedly, while armed with .12 bore pistol, had fired at deceased hitting his right leg near the knee---Injury attributed to accused by both witnesses found corroboration from medical evidence, which was in line with ocular account---Both prosecution witnesses and complainant had fully proved case against accused---Some previous enmity in fact existed between the parties---Accused had participated in the occurrence and prosecution had succeeded in proving case against him for committing Qatl-i-Amd of deceased---Conviction and sentence of accused under S.302(b), P.P.C. could not be converted merely on the ground that he had caused injury on non-vital part of body of deceased---Each and every case had to be decided on its own merits---Nothing was on record to suggest that accused had no intention to kill deceased as he had waylaid deceased while armed with fire-arm and caused injury through fire which proved

fatal---No merit having been found in appeal to the extent of accused, appeal was dismissed while maintaining conviction and sentence of the accused by the High Court.

PLD 1996 SC 274; PLD 1976 SC 377; 1970 SCMR 313 and 1999 SCMR 1668 ref.

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

----S. 302(b)/34---Appreciation of evidence---Benefit of doubt---Co-accused in the case was not armed with any weapon and he was ascribed only the role that he had felled deceased on the ground whereafter main accused fired at deceased---Co-accused was allegedly armed with Sota along with his two acquitted accused who were also armed with Sotas, but none of them had caused any injury with Sota on the person of deceased--Prosecution had failed to prove case against co-accused through any cogent evidence---Nothing was recovered from the possession of co-accused during investigation and nothing was on record to corroborate oral statements of the eye-witnesses regarding his involvement in the case---Case of co-accused was at par with case of acquitted accused---No distinguishable features existed except that co-accused was declared guilty during investigation---Police opinion, was not binding on the Courts and merely on the basis of such report conviction or acquittal could not be recorded---Prosecution had failed to bring home guilt to said co-accused beyond any shadow of doubt---Appeal of co-accused was partly accepted, impugned judgment to the extent of co-accused was set aside and he was acquitted of the charge by extending him benefit of doubt and was ordered to be released from jail.

Sahibzada Farooq Ali and Muhammad Naeem Khan for Appellants.

Sardar Balakh Sher Khosa for the Complainant.

Mahr Muhammad Saleem for the State.

Date of hearing: 2nd June, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1928 #

2006 P Cr. L J 1928

[Lahore]

Before Maulvi Anwarul Haq and Muhammad Jehangir Arshad, JJ

Dr. MUHAMMAD AKRAM, Associate Professor, Bahauddin Zakariya University, Multan and 2 others----Appellants

Versus

MAHER RAEES AHMAD HARAJ and 5 others----Respondents

I.C.A. No.143 of 2005 in Writ Petition No.2866 of 2005, decided on 26th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 154---Penal Code (XLV of 1860), Ss.379, 421, 426 & 506---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court appeal---Registration of F.I.R.---Respondents had sought registration of case against the police officers, who allegedly arrested the respondents from University Hostel, deprived them of certain amounts and also confined them at police station concerned for 20 hours despite fact that no case was registered against them---Single Judge holding that from the contents of petition cognizable offence was prima facie made out, directed S.H.O. concerned to record statement of respondent/complainant under S.154, Cr.P.C. and proceed in accordance with law---Single Judge had only directed for registration of case against police officers, but instead the names of appellants in the case had also been included in F.I.R.---Said F.I.R. to the extent of names of appellants, was not only beyond the directions issued by the Single Judge, but was also an act of mala fide on the part of the police---Respondents entered appearance through their counsel and insisted that F.I.R. was not registered as reported by them through their application submitted to the police station concerned---Intra-Court appeal was allowed and the respondent was directed to appear before S.H.O. police station concerned, who after recording his statement, would register F.I.R. afresh and then would proceed with the investigation of the case in the light of directions of Single Judge of High Court.

Mst. Anwar Begum v. Station House Officer, Police Station Kalri West, Karachi and 12 others PLD 2005 SC 297 and Wajid Ali Khan Durani and others v. Government of Sindh and others 2001 SCMR 1556 ref.

Malik Muhammad Rafiq Rajwana and Malik Muhammad Tariq Rajwana for Appellants.

Kanwar Intizar Muhammad Khan for private respondents.

Zafrullah Khan Khakwani, A.A.-G. with Nazir Ahmad, S.-I./S.H.O. and Muhammad Ayoub, S.-I. Police Station Alpa, Muhammad Farooq, S.-I. and Kausar Hussain Shah, S.-I./S.H.O. Police Station Gulgasht, Multan.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1931 #

2006 P Cr. L J 1931

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD ABBAS----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.115 of 2004, decided on 19th October, 2005.

Penal Code (XLV of 1860)---

----S. 302(c)---Appreciation of evidence---Sentence, reduction in---Both complainant and prosecution witness, were real brothers inter se and sons of deceased and since occurrence had taken place in front of their house, their presence at the spot at the time of occurrence could not be doubted---Complainants and prosecution witnesses had no previous enmity or grudge to falsely implicate accused in the case, they could not be termed, as interested witnesses merely on account of their close relationship---Statements of said witnesses, however could not be termed as gospel truth as occurrence appeared to have not taken place in the manner narrated by them---Accused had received a fire-arm shot at the finger of his left hand, but factum of receiving said injury by accused was concealed by complainant in his statement under S.154, Cr.P.C. and also before the Trial Court in his Examination-in-Chief which cast serious doubt on the veracity of his version---Statement of prosecution witness that when he reached the place of occurrence, accused had already fled away from the spot, had excluded his presence at the time of firing by accused at deceased---Said statement was not worthy of reliance, in circumstances---Evidence given by prosecution witnesses themselves was sufficient to falsify the story narrated by complainant that occurrence had taken place when he along with his deceased mother was coming on donkey-cart while taking fodder---Occurrence, in circumstances had not taken place in the manner narrated by prosecution and defence---Plea taken by accused appeared to be more plausible which was borne out from the evidence on record---Defence plea was further supported by Doctor who, as Court witness, examined accused--Prosecution's case was not that injury on the person of accused was not received by accused and that it was self-inflicted injury---Defence plea was that accused had acted in self-defence, but the nature of injury caused by accused on the person of deceased was sufficient to show that, accused had exceeded right of self-defence---Trial Court had rightly convicted accused under S.302(c), P.P.C. and same was maintained but sentence of 25 years being harsh, same was reduced to 10 years' R.I., which would meet the ends of justice---Compensation amount was also reduced from Rs.1,00,000 to Rs.50,000, accordingly.

Ch. Sultan Mehmood Janjua for Appellant.

Shawar Khilji for Respondent.

Date of hearing: 19th September, 2005.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1937 #

2006 P Cr. L J 1937

[Lahore]

Before Muhammad Nawaz Bhatti, J

ARIF KHAN----Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, KABIRWALA DISTRICT KHANEWAL and 2 others----Respondents

Writ Petition No.3841 of 2005, heard on 21st June, 2006.

Criminal Procedure Code (V of 1898)---

---Ss. 154, 22-A & 161---Police Rules, 1934, Rr.24.1(1) & 24.3---Penal Code (XLV of 1860), Ss.302 & 380---Constitution of Pakistan (1973), Art.199---Constitutional petition---Registration of second F.I.R. in presence of first F.I.R.---Validity---F.I.R. under Ss.302 & 380 was registered against accused for committing murder of police constable---One month after registration of F.I.R. father of accused filed an application under S.22-A, Cr.P.C. before Court of Session alleging therein that petitioner, four co-accused and deceased constable had committed sodomy with his son (accused) whereupon his son committed murder of deceased and prayed for registration of F.I.R. against petitioner and co-accused---Court of Session allowed the application and passed order for registration of second F.I.R. of the same occurrence---Petitioner challenged the order of Court of Session vide constitutional petition---Validity---Version as narrated by respondent (father) in his application before Court of Session was an information with regard to F.I.R. already lodged, coming out later in point of time which was to be taken down only as statement under S.161, Cr.P.C.---Under Rule 24.1(2) of Police Rules, 1934, Officer Incharge of Police Station on receiving information as to commission of cognizable offence was to record the same in First Information Report Register as well as in Station Diary but under Rule 24.3 of Police Rules, 1934 the information with regard to non-cognizable offence was to be recorded in Station Diary only---Information given by respondent in shape of cross-version disclosed commission of non-cognizable offence, as such it was to be considered as a statement under S.161, Cr.P.C.---Plea of respondent that his son committed murder .of deceased was to be investigated and recording of cross-version, if any, was the proper course rather than registering a separate F.I.R.---Respondent (father of accused) in his application under S.22-A, Cr.P.C. had also prayed for recording of cross-version of accused in the case already registered---Even accused had alternate remedy of filing a complaint---Court of Session was not justified in giving direction to Station House Officer to record F.I.R. as it was a case of cross-version, recording of which was to be ordered---Constitutional petition was accepted and impugned order passed by Court of Session was set aside.

Mst. Anwar Begum v. Station House Officer, Police Station Kalri West, Karachi and 12 others PLD 2005 SC 297 rel.

Ghulam Siddique v. S.H.O. Sadar D.G. Khan and 8 others PLD 1979 Lah. 263; Kaura v. The State 1979 PCr.LJ 521; Kaura v. The State 1983 SCMR 436; Mushtaq Ahmad v. The S.H.O. Police Station Munawan 1984 PCr.LJ 1454 and Wajid Ali Khan Durani and others v. Government of Sindh and others 2001 SCMR 1556 ref.

2001 SCMR 1556 distinguished.

Malik Ashiq Muhammad Jamal for Petitioner.

Mubashir Latif Gill, A.A.-G. for Respondents.

Sikandar Javed for Respondent No.3.

Date of hearing: 21st June, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1942 #

2006 P Cr. L J 1942

[Lahore]

Before Muhammad Jehangir Arshad, J

WASEEM IQBAL-Petitioner

Versus

ADDITIONAL INSPECTOR-GENERAL OF POLICE, INVESTIGATION BRANCH, PUNJAB, LAHORE and 3 others----Respondents

Writ Petition No.2064 of 2006, decided on 6th July, 2006.

Police Order (22 of 2002)---

----Art. 18(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Transfer of investigation---Petitioner was declared innocent in the first investigation, but on application of complainant, investigation was changed and new Investigating Officer after conducting investigation, declared the petitioner an accused---Application under Art.18(2) of Police Order, 2002 filed by petitioner for second change of investigation having been disallowed by Additional Inspector-General of Police, petitioner had filed constitutional petition---Maintainability---Constitutional jurisdiction was discretionary in nature and High Court was not bound to interfere in each and every matter just on the ground of want of alternate remedy against action impugned or called in question in constitutional petition, unless there were some compelling reasons showing that non-interference would either result in injustice or would amount to support the retention of illegal gain---Only purpose poking change of investigation, was that petitioner had been found guilty in second investigation and petitioner wanted to gel second opinion---Contention of petitioner had got no legal sanctity and second opinion by Investigating Officer could not be made ground for approaching High Court---High Court could not assume the role of investigator nor could control investigation by interfering in its constitutional jurisdiction---Constitutional petition, was dismissed, in circumstances.

Muhammad Ashfaq v. Amir Zaman and others 2004 SCMR 1924; Khiali Khan v. Haji Nazir and 4 others PLD 1997 SC 304; Brig. (Rtd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142; Riaz Hussain and others v. The State 1986 SCMR 1934; Syed Nazar Abbas Jaffri v. Secretary to Government of the Punjab and another 2006 SCMR 606 and Ch. Zahur Ilahi, M.N.A. and 2 others v. Mr. Zulfikar Ali Bhutto and others PLD 1975 SC 383 ref.

Muhammad Ghias-ul-Haq for Petitioner.

Altaf Ibrahim Qureshi for the Complainant.

Muhammad Qasim Khan, A.A.-G. with Zafar Iqbal, A.S.-I.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1945 #

2006 P Cr. L J 1945

[Lahore]

Before Muhammad Nawaz Bhatti and Tariq Shamim, JJ

BASHIR and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.808 and Murder Reference No.741 of 2001, heard on 14th June, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Constitution of Pakistan (1973), Arts.8(1) & 9---Appreciation of evidence---Testimony of eye-witnesses closely related to deceased---Scope and worth---Delay in dispatching weapons to Chemical Examiner---Effect---Allegation against both accused/appellants was that they, along with two co-accused, committed murder of deceased on suspicion of latter's having illicit relations with sister of one accused/appellant who was wife of other accused/appellant---Trial Court convicted and sentenced accused/appellants to death and acquitted co-accused---Validity---F.I.R. was promptly lodged with names and specific roles of accused mentioned therein---Medical evidence led by prosecution was admitted as doctor who had conducted post-mortem examination on dead body of deceased was not cross-examined by accused---Prosecution had successfully proved motive against accused--Even if motive alleged by prosecution appeared to be weak or prosecution had failed to prove motive, this fact alone would not be fatal to prosecution case nor the same would amount to mitigating circumstance, warranting lesser sentence---Where the charge was established beyond reasonable doubt then the absence or failure to prove motive would not come in way of passing normal sentence of death in a murder case---Admittedly there was four months delay in dispatching weapons of offence to Chemical Examiner therefore report of Chemical Examiner/Serologist was unreliable yet this aspect or the matter had not weakened prosecution case---Mere enmity or close relationship of witnesses with deceased was not a valid ground to discard their evidence'---Court was to be concerned with quality of evidence adduced at the trial irrespective of the fact whether witnesses were hostile or interested---Hostile witness may be a truthful witness and a disinterested witness may make a false statement---Eye-witnesses had convincingly explained their presence on the spot at relevant time---Eye-witnesses' account was supported by medical evidence which had confirmed date, time of occurrence, weapons used by assailants and locale of injuries sustained by deceased---Delay in preparation of site-plan was inconsequential, for the site-plan was not a substantive piece of evidence and it could not be used to discard or contradict evidence of prosecution witnesses---In criminal cases acceptance or denial of claim on oath was of no significance, therefore not acceptable---Case was not that of grave and sudden provocation because motive of' offence was not illicit relationship but suspicion of illicit relationship---Contention of accused/appellants that murder was committed on account of "Ghairat" which created mitigating circumstance in favour of accused, was neither sustainable from record nor the same could be declared a mitigating circumstance for awarding lesser sentence---Neither law of the land nor religion permitted so-called "honour-killing" which amounted to murder (Qatl-i-Amd) simpliciter---Honour-killing was violative of fundamental rights enshrined in Arts.8(I) & 9 of the Constitution---Prosecution had proved its case against accused/appellants beyond any reasonable doubt---Death sentence was confirmed---Appeal was dismissed.

Abdul Wahab alias Rehra v. The State 1999 SCMR 1668; Abdur Rauf v. The State 2003 SCMR 522; Riaz Hussain v. The State 2001 SCMR 177; Sardar Khan and 3 others v. The State 1998 SCMR 1823; Hussain Ahmad v. The State 1996 PCr.LJ 130 and Muhammad Akram Khan v. The State PLD 2001 SC 96 rel.

Muhammad Ajmal v. Sharif Ahmad and others 2004 SCMR 1134; Mushtaq Ahmad v. The State PLD 2004 SC 150; Tariq v. The State 1998 SCMR 1586; Muhammad Sharif and others v. The State PLD 1995 Lah. 593 and Muhammad Yaqub v. The State and another 1996 SCMR 1127 ref.

Sahibzada Farooq Ali Khan for Appellants.

Sardar Balkh Sher Khosa for the Complainant.

Kanwar Muhammad Younas for the State.

Date of hearing: 14th June, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1956 #

2006 P Cr. L J 1956

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

SABIR HUSSAIN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.144/J and Murder Reference No.457 of 1998, decided on 2nd May, 2006.

Penal Code (XLV of 1860)--

----S. 302(b)---Appreciation of evidence---Occurrence in the case had taken place in broad-daylight and F.I.R. in that respect had been lodged with reasonable promptitude wherein accused had been specifically nominated as the sole perpetrator of the murder of deceased---Accused was very closely and sensitively related to complainant party---In absence of any background of enmity or ill-will between the parties, there was hardly any reason for such closely and sensitively related witnesses to falsely implicate accused in the case of that nature---Date, time and place of occurrence and accused's presence and his involvement in the same, were never disputed by accused---Even the presence of the eye-witnesses at the spot at the relevant time had been admitted by defence---Story advanced by accused regarding accidental going off the gun of complainant and its fire-hitting deceased accidentally, could not be established by any independent evidence---Eye-witnesses had made absolutely consistent statements before the Trial Court regarding main occurrence, which was found to be worthy of implicit reliance---Criminal history of accused had been established on the record and in that background, motive set up by prosecution was not without any foundation or substance---Gun of .12 bore, though had allegedly been recovered from possession of accused during investigation but said recovery was legally inconsequential as no crime-empty had been recovered from the place of occurrence so as to connect recovered gun with the murder in issue---Ocular account furnished in the case however, had been found to be quite strong and motive set up by prosecution had also been found to be quite believable---Absence of corroboration from the recovery of gun, in circumstances had not been found to be sufficient by itself to weaken the ocular account in any manner---Ocular account had found ample support from medical evidence, inasmuch as the date, time of occurrence, weapon used and locale of injuries caused by accused tallied with the prosecution version---Prosecution, in circumstances had succeeded in establishing guilt of accused to the hilt and Trial Court had rightly convicted and sentenced the accused---Normal wages of a crime of murder being death, in peculiar circumstances of the case, accused deserved no less---Conviction and sentence recorded by the Trial Court against accused were upheld and maintained, in circumstances.

Ch. Zafar Iqbal (defence counsel) at the State expense.

Muhammad Aslam Khan Buttar for the Complainant.

Miss Tasneem Amin for the State (in Criminal Appeal No.144/J of 1998).

M. Saleem Shad for the State (in Murder Reference No.457 of 1998).

Date of hearing: 2nd May, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1962 #

2006 P Cr. L J 1962

[Lahore]

Before Khawaja Muhammad Sharif and M.A. Shahid Siddiqui, JJ

KHURRAM ZEESHAN----Petitioner

Versus

ASSISTANT DIRECTOR, POLICE STATION ANTI-NARCOTICS FORCE, FAISALABAD and another----Respondents

Writ Petition No.17904 of 2005, decided on 7th February, 2006.

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

----Ss. 9(c) & 15---Drugs Act (XXXI of 1976), S.7---Drugs (Licensing, Registering and Advertising) Rules, 1976, Rule 8---Punjab Drugs Rules, 1988, Rr.2(e), 15(iii), 17(2)(3), 21(i)(B&C) & Sched. B---Constitution of Pakistan (1973), Art.199---Constitutional petition---Recovery of Psychotropic drugs/medicines---Quashment or F.I.R.---Scope---Allegation against ,accused/petitioner as levelled in F.I.R. was that a certain quantity of controlled drugs/medicines was recovered from his custody---Accused while assailing F.I.R., asserted that he dealt in sale and purchase of pharmaceutical medicines/drugs under licence issued by competent authority; that medicines recovered from his custody were prepared by a manufacturer holding licence issued by competent authority constituted under Drugs Act, 1976; that accused was authorized to sell recovered drugs on Form Nos.10 and 11 issued by Licensing Authority under Punjab Drugs Rules, 1988--Validity---Accused held licence to sell narcotics and other controlled drugs which had been specified in Schedule-B of Punjab Drugs Rules, 1988---Schedule-B of Punjab Drugs Rules, 1988, read with Rules 2(e), 15(iii) and 21(i) (B & C) did not reflect drugs recovered from accused---Sale of narcotic substances under umbrella of Form-10 and Form-II issued under Punjab Drugs Rules, 1988, did not enjoy any protection of law---Drugs recovered from accused fell in Schedule appended with Control of Narcotic Substances Act, 1997 and, therefore, constituted offence under S.9(c) of the said Act---Constitutional petition was dismissed accordingly.

Sh. Muhammad Nawaz for Petitioner.

Ch. Muhammad Sharif for A.N.F.

Asmat Ullah Khan, Assistant Director, A.N.F.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1965 #

2006 P Cr. L J 1965

[Lahore]

Before Tariq Shamim, J

MUHAMMAD HAYAT----Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION BHAWANA, DISTRICT JHANG and 2 others----Respondents

Criminal Miscellaneous No.1010/H of 2006, decided on 6th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 491--Habeas Corpus petition---Report of the Bailiff had shown that Police Officers concerned kept the 'detenu illegally in their. custody---Refusal of S.H.O. of Police Station concerned to provide record of Police Station to the Bailiff' in order to verify the arrest of detenu, had shown complete disrespect to the order of the Court---Conduct of said police officers was prima facie contumacious and constituted defiance to the authority of High Court---Since the detenu was neither nominated in the F.I.R. nor his arrest had been shown in the daily diary of the police, detenu was set at liberty and District Police Officer was directed to probe the matter himself and initiate appropriate action against the delinquent Police Officers.

Ghulam Farid Sanotra for Petitioner.

Muhammad Arif Bhinder, Addl. A.-G. along with Tallat Mehmood, Inspector and Yousaf, S.-I, for the State.

Tanveer Rehmat Awan, Bailiff.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1969 #

2006 P Cr. L J 1969

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD SAFDAR and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.116 and 122 of 2004, heard on 2nd August, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 109, 148 & 149---Appreciation of evidence---Complainant who died later on, made statement before his death which was treated as 'dying declaration'---Other two prosecution witnesses were related to deceased---Weapons of two accused persons were described, but no specification of weapons was given which accused persons were allegedly holding---Trial Court acquitted co-accused mainly for the reason that gun allegedly used by him during occurrence was not recovered, but Trial Court convicted accused despite the fact that no recovery was effected from their possession and their weapons were not described in F.I.R.---Trial Court had not given a single reason as to how the case or accused was distinguishable from that of acquitted accused, against whose acquittal no appeal was filed---Judgment passed by the Trial Court was not sustainable against accused---Judgment passed by the Trial Court to the extent of accused was set aside and he was acquitted of all the charges and was released.

Tariq Khan v. The State 1997 SCMR 254 and Rahmat v. The State 1995 SCMR 733 ref.

Mian Muhammad Tayyab Wattoo for Appellants.

Ghazanfar Ali Khan for the State.

Date of hearing: 2nd August, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1974 #

2006 P Cr. LJ 1974

[Karachi]

Before Syed Sajjad Ali Shah, J

AHSAN ALI SHAH----Applicant

Versus

RIAZ AHMED and another----Respondents

Criminal Miscellaneous Application No.49 of 2004, decided on 8th August, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 145 & 561-A---Quashing of order---Application for---Dispute over a portion of land---Once civil court was seized of the subject-matter of a dispute and had directed regularisation of its possession or had passed a decree granting possession in favour of a party; or had restrained opposite party from interfering with its possession, then such subject-matter of dispute, would not fall within the jurisdiction of a Magistrate calling for an order under S.145, Cr.P.C.---Apprehended breach of peace in the circumstances could very well be remedied by taking action under Ss.107 & 151, Cr.P.C., but subject-matter of the dispute could not be interfered with by Judicial Magistrate including its attachment---Parties, in the present case were litigating over the subject-matter of the dispute since last more than two decades and the question of possession over the subject-matter of dispute was decided by civil court in a suit and then in appeal---Judicial Magistrate, had no jurisdiction over the subject-matter of dispute entitling him to exercise powers under S.145, Cr.P.C.---No case of interference with the order of Additional Sessions Judge having been made out, criminal miscellaneous application was dismissed.

Shah Muhammad v. Haq Nawaz and another PLD 1970 SC 470 and Shah Muhammad v. The State and 5 others 1983 SCMR 1173 ref.

Ali Nawaz Ghanghro for Applicant.

Khadim Hussain M. Shaikh for the Respondent No.1.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1984 #

2006 P Cr. L J 1984

[Karachi]

Before Syed Sajjad Ali Shah, J

GULZAR KHOSO----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.71 of 2006, decided on 18th August, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 504, 109, 147, 148 & 149---Bail, refusal of---No allegation of firing was made against accused, but his presence had been shown at the place of occurrence with weapon---Co-accused, who caused the sole shot from his pistol which resulted in the death of deceased, was brother of accused and the manner in which murder was committed appeared to be pre-planned where three brothers, including accused and other co-accused in a pre-planned manner shot deceased in the court premises---No explanation whatsoever was rendered to justify presence of accused at the place of occurrence along with his brothers which led to a tentative view that accused shared common intention to commit murder of deceased---Looking at the gravity of offence that an under-trial prisoner had been killed in the court premises, while in judicial custody and accused not only facilitated the commission of offence, but, also facilitated other co-accused to escape, and having no justification as to his presence in the court premises, reasonably connected him in a pre-planned murder---Reasonable grounds were to believe that accused played his role in a pre-planned murder and had shared common intention with other co-accused in the commission of crime falling under the prohibitory clause of S.497(1), Cr.P.C. disentitling accused to grant of bail on the ground of further enquiry---Accused being brother of principal accused, his case was worse than one of principal accused.

Sher Khan and another v. State 1980 SCMR 193; Shahid v. State 1994 SCMR 393 and Mumtaz Hussain and 5 others v. State 1996 SCMR 1 125 rel.

Muhammad Ayaz Soomro for Applicant.

Mushtaque Ahmed Abbasi, Asstt. A.-G. for the State.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1990 #

2006 P Cr. L J 1990

[Karachi]

Before Syed Sajjad Ali Shah, J

MUHAMMAD ISLAM----Applicant

Versus

ABDUL BARI and another----Respondents

Criminal Miscellaneous Application No.71 of 2006, decided on 18th August, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.302, 506(2), 337-H(2), 147, 148 & 149---Bail, cancellation of---Accused had absconded and after almost three years surrendered himself before the Trial Court by moving a bail application, but said bail application was rejected by the Trial Court---Second bail application on the same grounds was again moved by accused before the same Judge, who vide his order accepted said second bail application of accused and released him on bail---No new ground for the grant of bail was neither available nor pleaded nor discussed by the Trial Court in its order passed on second bail application---Trial Court after reconsidering same arguments/grounds which were rejected in its earlier order drew a totally contrary view and enlarged accused on bail, which order was not only against all judicial norms, but without any justification and without referring to earlier order whereby bail application was rejected which was in clear violation of the settled principle that second bail application could only be entertained on the grounds which were not available to accused at the time of moving first application---Neither the second bail application on the same ground was competent before the Trial Court nor second order conformed to the judicial norm and obviously was for extraneous consideration---Bail granted to accused by the Trial Court, was cancelled and accused was remanded to judicial custody.

Mian Dad v. The State 1992 SCMR 1418; Akmal Masih v. Salamat Masih 1988 SCMR 918; Mst. Irshad Begum v. Muhammad Afzal 1985 SCMR 1691 and State v. Zubair and 4 others PLD 1986 SC 173 ref.

Saeed Ahmed Bijarani for Applicant.

Aware Rehmatullah Nadeem for Respondent No.1.

Mushtaque Ahmed Kourejo for the State.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 1998 #

2006 P Cr. L J 1998

[Lahore]

Before Sh. Hakim Ali, J

ABDUR RAZZAQ----Petitioner

Versus

THE STATE and others----Respondents

Writ Petition No.1305 of 2006/BWP, decided on 13th June, 2006.

Police Order [22 of 2002]---

----Art. 18(6)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16---Constitution of Pakistan (1973), Art.199---Constitutional petition---Transfer of investigation---Investigation of a case could be transferred from one Investigating Officer to another by Investigation Board, headed by an officer not below the rank of Senior Superintendent of Police and two Superintendents of Police, one being Incharge of concerned district---Incharge of investigation of the district had been placed in the Board as its member and had got no other status or power so as to withdraw investigation of a case himself lonely and solely---Board could approve such change of investigation---No other provision existed granting power to Incharge of Investigation of the district to withdraw any case from any Investigating Officer and to conduct investigation himself---If any party to the case desired any transfer of investigation, it could move Investigation Board in accordance with provision of Art.18(6) of Police Order, 2002.

Mumtaz Hussain Bazmi for Petitioner.

Ch. Shafi Muhammad Tariq, A.A.-G. for the State.

Muhammad Saleem, P.S.P., Superintendent of Police (Investigation), Bahawalpur.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 2000 #

2006 P Cr. L J 2000

[Karachi]

Before Mrs. Qaiser Iqbal, J

SHAHNAWAZ and 2 others----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.S-460 of 2006, decided on 11th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.337-A(i)---Bail, grant of---Contradiction existed between ocular account and medical evidence---Incident had taken place at the spur of the moment without pre-meditation on a matrimonial affair---Case of accused required further inquiry as allegations against accused were general in nature---Accused were admitted to bail, in circumstances.

Ishrat Ali Lohar for Applicants.

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

PCRLJ 2006 LAHORE HIGH COURT LAHORE 2001 #

2006 P Cr. L J 2001

[Lahore]

Before Tariq Shamim, J

NOOR-UL-HASSAN and another----Petitioners

Versus

THE STATE and another----Respondents

Criminal Revision No.756 of 2006, heard on 4th September, 2006.

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

----S. 7---Penal Code (XLV of 1860), Ss.302, 148 & 149---Trial by Juvenile Court---Determination of age---Precedence of opinion of Medical Board over school leaving certificate---Scope---Non-production of birth certificate---Effect---Accused/petitioners (two real brothers) were booked under S.302, P.P.C. and their challan was submitted in Trial Court---Accused filed an application before Trial Court and claimed their trial under Juvenile Justice System Ordinance, 2000, on ground that they were below the age of 18 years at the time of occurrence and in support of their claim relied upon school leaving certificates---Accused thereafter filed another application before Trial Court for referring them to Medical Board for determination of their ages---Medical Board opined that ages of accused were 20/21 years and 21/22 years respectively---Trial Court dismissed application of accused for their trial by Juvenile Court on ground that opinion of Medical Board was to be given preference over school record as authenticity of school record was not above board---Accused then filed another application before the Court and prayed for their medical re-examination through Regional Appellate Medical Board for determination of their age---Trial Court dismissed the said application on grounds; that in opinion of Medical Board accused were above the ages of 18 years at the time of occurrence; that Court could not review its earlier order passed on previous application of accused---Validity---Trial Court on the basis of reports submitted by Medical Board had dismissed application of accused for declaring them juvenile---Accused instead of assailing the said order opted to file a second application before the Court seeking determination of their ages through Regional Appellate Medical Board which application was dismissed by Court on ground that earlier order had attained finality and Court could not review its previous order---Medical Board had given a conclusive opinion regarding ages of accused contrary to the ages mentioned in school leaving certificates---Accused failed to substantiate the allegation of collusion of complainant with Medical Board---Accused, when they first approached Trial Court regarding controversy of their age, did not append their birth certificates rather they chose to rely upon school leaving certificates---Opinion of Medical Board regarding age was to be given preference to school leaving certificates which were susceptible to manipulation and manoeuvring---Accused/petitioners failed to point out any infirmity, illegality or jurisdictional error in the order passed by Trial Court---Application was dismissed.

Muhammad Sadeeque Khan v. The State and another 2004 YLR 2847; Sultan Ahmad v. Additional Sessions Judge-I, Mianwali and 2 others PLD 2004 SC 758 and Muhammad Akram v. Muhammad Haleem alias Hamayun and others 2004 SCMR 218 rel.

Javed Iqbal v. The State 2004 PCr.LJ 105; Muhammad Sadeeque Khan v. The State and another 2004 YLR 2847; Nauman Yousaf v. The State and another 2005 PCr.LJ 1719 and Sultan Ahmad v. Additional Sessions Judge-I, Mianwali and 2 others PLD 2004 SC 758 ref.

Muhammad Ishaque's case 2002 SCMR 440 distinguished.

Mian Muhammad Sikandar Hayat for Petitioners.

Ch. Nisar Ahmad Dhillon and Malik Suleman Awan for the State.

Date of hearing: 4th September, 2006.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 2005 #

2006 P Cr. L J 2005

[Karachi]

Before Muhammad Moosa K. Leghari and Mrs. Yasmin Abbasey, JJ

DHANI BUX alias IJAZ----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.D-18 of 2006, decided on 4th May, 2006.

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

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9---Bail, grant of---Complaint was presented before Civil Judge, seven days before Sessions Judge passed orders for holding preliminary enquiry---Both said actions were taken before registration of F.I.R. which was registered four days after passing orders for holding preliminary enquiry---Complainant in the case as well as Mashir of recovery had been duly implicated in the direct complaint---Considerable delay had taken place in sending material for chemical examination--Case of accused calling for further inquiry, he was entitled to concession of bail, in circumstances.

Ishrat Ali Lohar for Applicant.

Anwar H. Ansari for the State.

PCRLJ 2006 LAHORE HIGH COURT LAHORE 2007 #

2006 P Cr. L J 2007

[Lahore]

Before Tariq Shamim, J

REHMAT BIBI----Petitioner

Versus

DISTRICT POLICE OFFICER, NAROWAL and 2 others----Respondents

Writ Petition No.9570 of 2006, decided on 15th September, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Constitution of Pakistan (1973), Art.199---Constitutional petition---Powers and duties of Justice of Peace---Petitioner had sought a direction for registration of criminal case against four persons and for setting aside the order of Justice of Peace whereby application of petitioner under Ss.22-A & 22-B, Cr.P.C., was dismissed---In application under Ss.22-A & 22-B, Cr.P.C. as well as in the constitutional petition, persons against whom registration of criminal case was sought by petitioner, had not been arrayed as respondents---According to comments submitted by the Police before Justice of Peace had revealed that claim of petitioner regarding abduction of her son was totally baseless as no such occurrence had taken place---Similar petition earlier filed by petitioner, had been dismissed and since said earlier petition was dismissed on merits, without there being any fresh ground a similar petition could not be preferred---In application filed by petitioner under Ss.22-A & 22-B, Cr.P.C., no specific date and time of alleged occurrence was mentioned, which had created serious doubts about authenticity of version narrated by petitioner---Petitioner, even otherwise had adequate alternate remedy available under law by way of filing a private complaint against said four persons---Controversy, essentially pertained to disputed questions of fact which exercise could not be undertaken in constitutional jurisdiction-of the High Court---Counsel for petitioner having not been able to point out any illegality, infirmity or jurisdictional error in impugned order warranting interference by High Court in exercise of jurisdiction under Art.199 of the Constitution, petition was dismissed.

Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 ref.

Muhammad Jamil Bhatti for Petitioner.

Peshawar High Court

PCRLJ 2006 PESHAWAR HIGH COURT 53 #

2006 P Cr. L J 53

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

MUZAFFAR KHAN---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No. 892 of 2004, decided on 23rd September, 2005.

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

----Ss. 324 & 353---West Pakistan Arms Ordinance (XX of 1965), S.13---Criminal Procedure Code (V of 1898), S.164---Appreciation of evidence---Incriminating statements of prosecution witnesses and positive report, of Fire-Arms Expert, were enough to connect accused with commission of crime---Defence could not prove as to why police would involve accused falsely, specially when none of police party had any "Imity against him---Prosecution witnesses, who were police officials, had made statements on material points and accused had failed to point our any discrepancy in their statements---Contradictions pointed out by counsel for accused were so minor that on basis of those, it could not be held that trial of accused stood vitiated---Prosecution case was further supported by confession of accused voluntarily made before Judicial Magistrate, who appeared as prosecution witness and confirmed its voluntariness---Said confession, no doubt was recorded 6 days after arrest of accused, but delay itself could not render confession. nugatory, if same was recorded in accordance with law---No material was available to suggest that accused had been coerced or induced to make confessional statement---Facts brought out in judicial confession, found corroboration in material circumstances---Details of event given by accused in confessional statement were strong circumstance to establish that confession was true and voluntary---Prosecution had proved the guilt of accused beyond all reasonable doubts and had successfully discharged its burden through consistent and confidence-inspiring evidence---Prosecution witnesses had no malice or ill-will against accused to falsely implicate him in the case---Findings of the Trial Court could not be shown to have been passed on misreading or non-reading of evidence---Trial Court had appraised evidence on record thoroughly on the principles for reappraisal of evidence in criminal cases for safe administration of justice---Judgment of Trial Court was based on correct application of law and proper evaluation of evidence---No reason being available to interfere in finding of Trial Court, appeal against same was dismissed.

Sabir v. The State 1998 PCr.LJ 1941; Abdullah v. The State 2002 PCr.LJ 1424; Muhammad Shafiq v. The State YLR 2003 1482; Mushtaq v. The State 2002 PCr.LJ 1312 and Khan Muhammad v. The State 1999 SCMR 1818 ref.

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

----S. 164---Confession---If confession was not confidence-inspiring, use of same to convict a person without independent corroboration was not legal---Courts generally refrain from passing confession solely on retracted confession and while following the rule of abundant caution, look to corroboration in material particulars to ensure safe administration of justice---Court, if was satisfied that confessional statement recorded was true and voluntary, it could safely make same the basis of conviction---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.

Miss Farhana Marwat and Aftab Ahmad Khobai for Appellant.

Muhammad Saeed Khan, A.A.-G. for the State.

Date of hearing: 23rd September, 2005.

PCRLJ 2006 PESHAWAR HIGH COURT 110 #

2006 P Cr. L J 110

[Peshawar]

Before Shahzad Akbar Khan and Ijaz-ul-Hassan Khan, JJ

MAQBOOL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.865 of 2004, decided on 29th September, 2005.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S.540---Appreciation of evidence---Prosecution, in order to prove factum of apprehension of accused and recovery of contraband Charas from the secret cavities of the truck in question, had produced five witnesses---Marginal witnesses to recovery memo., however, had' not been produced at the trial---Was not discernible from the record as to whether said witnesses had been abandoned as unnecessary or not---Said witnesses were material, witnesses and could have been summoned by the Court under S.540, Cr.P.C. as Court witnesses in order to discover the truth for arriving at a just decision---Impugned judgment of conviction of accused was set aside and case was remanded to Trial Court for fresh decision.

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

----S. 540---Examining, recalling and resummoning of witness---Scope---Primary function of the Court was to arrive at the truth in accordance with law and technicalities should not be allowed to interfere with that function---Provisions contained in 5.540, Cr.P.C. in examining, recalling or summoning any witness, were wide enough to give free hand to Court of law to see that justice did not slip out of hand or was defeated only on technicalities of law---Courts ought to make maximum endeavour for discovering the truth for arriving at a just decision.

Mahmood Shah for Appellant.

Malik Hamid Farooq, D.A.-G. for the State.

Date of hearing: 29th September, 2005.

PCRLJ 2006 PESHAWAR HIGH COURT 127 #

2006 P Cr. L J 127

[Peshawar]

Before Muhammad Qaim Jan Khan and Salim Khan, JJ

Mst. CHAMAN SHEREEN---Petitioner

Versus

GOVERNMENT OF N.-W.F.P. through Secretary Home, N.-W.F.P., Peshawar and 3 others---Respondents

Writ Petition No. 1668 of 2005, decided on 13th October, 2005.

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

----S. 3(1)---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Preventive detention---Copies of F.I.Rs. had indicated that cases against sons of petitioners were of personal and individual nature involving one or more sons of petitioner and their opponents, but not the public at large---Record did not show as to how public safety was in danger by existence of said cases, which were of routine nature and how said cases were prejudicial to maintenance of public order---Primary duty of police officials of a local police station was to maintain public order cases of routine nature do take place investigated by investigating staff who submitted cases to the Courts of law for adjudication---Maintenance of law and order was the duty of executive/administrative branch of a local police and unless a case of grave threat to the peace and tranquility in the local society was made out it could not be said that public order could not be properly maintained---Public sensation could prevail for a short period due to a criminal occurrence, but occurrence itself would not become of public importance with such minor sensation and would not change personal character of occurrence, unless peace and tranquility of whole society was threatened by such offence---Mere lodging of F.I.Rs. had never been considered as proof of guilt of persons charged in said F.I.Rs.---Cases mentioned therein had to pass through the test of judicial scrutiny and it was on the basis of facts and law involved in each case that an accused was either convicted or acquitted, but cases of normal nature would not lead to the conclusion that there was threat or danger prejudicial to maintenance of public order at the hands of persons named in such F.I.Rs.---Cases mentioned against sons of petitioner were cases of individual and personal nature and would not lead to conclusion that said cases, which had occurred at different times and had been or being dealt with in accordance with provisions of law, were prejudicial to the maintenance of public order---Impugned order of detention was set aside with direction that sons of petitioner be set free.

Mrs. Arshad Ali Khan v. Government of the Punjab through Secretary Home 1994 SCMR 1532 ref.

Fida Gul for Petitioner.

Akhtar Naveed, Addl. A.-G. for Respondents.

PCRLJ 2006 PESHAWAR HIGH COURT 156 #

2006 P Cr. L J 156

[Peshawar]

Before Muhammad Qaim Jan and Salim Khan, JJ

HAMEEDULLAH QURESHI---Petitioner

Versus

A.P.A. BARA, KHYBER HOUSE, PESHAWAR CANTT. and 2 others---Respondents

H.C.P./Writ Petition No. 1631 of 2005, decided on 12th October, 2005.

Criminal Procedure Code (V of 1898)---

----S. 491---Frontier Crimes Regulation, 1901, S.40---Habeas Corpus petition---Alleged detenu, who was convicted and sentenced under 5.40 of Frontier Crimes Regulation, 1901, was alive and was in safe custody of a body established under law which was responsible for matters relating to security of Pakistan---Held, in the interest of security of State and also for safety of detenu, it was not necessary to order that alleged detenu be produced before the Court.

Abdul Latif Afridi for Petitioner.

Liaqat Ali Addl. A.-G. and Salahuddin Khan, D.A.-G. for Respondents.

Date of hearing: 12th October, 2005.

PCRLJ 2006 PESHAWAR HIGH COURT 169 #

2006 P Cr. L J 169

[Peshawar]

Before Ejaz Afzal Khan and Salim Khan, JJ

Dr. MAQBOOL ISLAM and another---Petitioners

Versus

COLLECTOR OF CUSTOMS AND CENTRAL EXCISE, PESHAWAR and 5 others---Respondents

Writ Petition No. 1272 of 2002, decided on 22nd June, 2005.

Customs Act (IV of 1969)---

----Ss. 161, 97 & 104-Sales Tax Act (VII of 1990), S.6---S.R.O. No. 108(I)/95, dated 12-2-1995---Constitution of Pakistan (1973), Art. 199 --- Constitutional petition---Initiation of criminal proceedings against petitioners on basis of F.I.R. recorded against them---Department initiated criminal proceedings against petitioners on basis of F.I.R. recorded under Ss.161, 97 & 104 of Customs Act, 1969, S.6(1) of Sales Tax Act, 1990 as well as S.R.O. No.108(I)/95 dated 12-2-1995---Allegations in the F.I.R. were that petitioners had stolen Bank guarantees from office of Assistant Collector Customs, had prepared false release order and had taken out amounts of guarantees from the Bank---In the light of relevant law, F.I.R. being not for an offence under Customs Act, 1969, same could not be initiated and investigated by officers of Customs Collectorate---Parties could have dispute about release of some Bank guarantees for which consumption certificates were not submitted, non-release of certain Bank guarantees for which certificates of consumption were submitted and adjustment of amounts through remaining Bank guarantees, or otherwise---Department had no authority to record impugned F.I.R. against petitioners under provisions of Customs Act, 1969, as no offence had been committed under the said Act---Impugned F.I.R. was declared without any legal authority and void by High Court---Department had no cause to conduct investigation against petitioners under provisions of Customs Act, 1969 or any other law mentioned in F.I.R. in question, for the purposes of the present case.

Mian Abdul Ghaffar for Petitioner.

Waqar Ahmad Seth for Respondents.

Date of hearing: 22nd June, 2005.

PCRLJ 2006 PESHAWAR HIGH COURT 174 #

2006 P Cr. L J 174

[Peshawar]

Before Jehan Zaib Rahim, J

BABAR SHAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.24 of 2004, decided on 26th May, 2005.

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

----S. 302---Appreciation of evidence ---F.I.R. lodged after 2-1/2 hours of the occurrence was quite natural, self-explanatory and could not be termed as a delayed report---Complainant being a close relative and having no enmity or motive against the accused could not possibly substitute him for the actual culprit---Solitary statement of the complainant was supported by place of occurrence, incriminating recoveries and medical evidence---Crime-empty recovered from the spot was proved to have been fired from the shotgun recovered at the instance of the accused---Recovery of the said shotgun did not suffer from any illegality or infirmity---Inconsistencies pointed out in prosecution evidence were neither material nor of any consequence---Judgment passed by Trial Court was based on correct application of law and proper evaluation of evidence---Conviction and sentence of accused were maintained in circumstances.

Muhammad Iqbal v. State PLD 2001 SC 222; Allah Bakhsh v. Shammi PLD 1980 SC 225; Riaz Ahmad v. State 1986 SCMR 1460; 1969 SCMR 76; 1971 SCMR 273; 1995 SCMR 1979; 2001 SCMR 177; Dildar Hussain v. Muhammad Afzaal alias Chala PLD 2004 SC 663; Muhammad Naeem v. State 1992 SCMR 1617; Muhammad Hanif v. State 2003 SCMR 1237; Hayat Bibi v. Muhammad Khan 1976 SCMR 128; Yaqoob Shah v. State PLD 1976 SC 53; Muhammad v. State PLD 1981 SC 635; Mir Muhammad v. State 1995 SCMR 614 and Allah Bakhsh v. Ahmed Din 1971 SCMR 462 ref.

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

----S. 302---F.I.R.---Delay or promptness in lodging the F.I.R. is hardly relevant to assess the truth or falsity of the case set up therein, but is only a circumstance to alert the Court to make close scrutiny of evidence and to judge the intrinsic worth of the statements of witnesses.

----S. 302---Appreciation of evidence---Number of witnesses---Prosecution is not bound to produce all the eye-witnesses nominated in the F.I.R.---Quality of evidence and not the quantity of witnesses counts with the Court---Courts have always given emphasis on the quality of evidence having unimpeachable character and dispelling all doubts.

Allah Bakhsh v. Shammi PLD 1980 225; Riaz Ahmad v. State. 1986 SCMR 1460; 1969 SCMR 76; 1971 SCMR 273; 1995 SCMR 1979; 2001 SCMR 177 and Dildar Hussain v. Muhammad Afzaal alias Chala PLD 2004 SC 663 ref.

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

---S. 302---Evidence---Police witnesses---Police officials are as good witnesses as any other citizen and unless any mala fide is established against them, their depositions cannot be brushed aside simply on the ground that they belong to Police Department responsible for maintaining law and order.

Muhammad Hanif v. State 2003 SCMR 1237; Hayat Bibi v. Muhammad Khan 1976 SCMR 128; Yaqoob Shah v. State PLD 1976 SC 53; Muhammad Naeem v. State 1992 SCMR 1617 and Muhammad v. State PLD 1981 SC 635 ref.

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

----S. 103---Search to be made in presence of witnesses---Applicability---Association of two respectable inhabitants of the locality is not required in a case where the accused himself leads the police to a particular place and gets the articles recovered.

Mir Muhammad v. State 1995 SCMR 614 ref.

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

----S. 302---Appreciation of evidence---Discrepancies---Principles---Minor inconsistency in depositions of prosecution witnesses of inconsequential nature cannot reasonably be considered as a good ground for disbelieving independent and disinterested witnesses.

Allah Bakhsh v. Ahmed Din 1971 SCMR 462 ref.

Qazi Shams-ud-Din for Appellant.

D.A.G. for the State.

Shad Muhammad Khan for the Complainant.

Date of hearing: 26th May, 2005.

PCRLJ 2006 PESHAWAR HIGH COURT 184 #

2006 P Cr. L J 184

[Peshawar]

Before Muhammad Raza Khan, J

LAIQ SHAH and another---Petitioners

Versus

THE STATE and others---Respondents

Cr.M.B. No.49 of 2005, decided on 14th April, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302 & 34---Bail, refusal of---Though a solitary injury was found on person of deceased for which six persons were charged, but injuries -found on person of female relative of deceased and complainant who, at relevant time, was accompanying them, could not be overlooked---Even if number of injuries could be disproportionate to number of accused persons that would not be a ground to release accused on bail particularly when there was strong motive and prolonged abscondence---No convincing documentary evidence was available on record to prove alleged plea of alibi---Even otherwise plea of alibi had lost its force in facts and circumstances of the case---No justification being available to release accused on bail, his application was dismissed.

PLD 1972 SC 277 and 1979 SCMR 251 ref.

Gauhar Zaman Khan Kundi for Petitioners.

Muhammad Sharif Chaudhry, D.A.-G. for the State.

Muhammad Iqbal Khan Kundi for Respondent No.2.

Date of hearing: 14th April, 2005.

PCRLJ 2006 PESHAWAR HIGH COURT 228 #

2006 P Cr. L J 228

[Peshawar]

Before Ijaz-ul-Hassan Khan and Salim Khan, JJ

NIAZ MUHAMMAD----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.606 of 2005, decided on 10th October, 2005.

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

----Ss. 9(b) & 25---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Search and recovery proceedings---Witnesses produced by prosecution to prove factum of apprehension of accused and recovery of Charas, had fully supported prosecution story and remained absolutely consistent and coherent and had resolutely withstood lengthy cross-examination---Defence had not been able to shatter testimony of said witnesses or pinpoint any ill-will which could have been harboured by said witnesses against the accused---Mere fact that said witnesses belonged to police department, by itself, could not be considered a valid ground to discard their testimony---Objection regarding non-compliance of provisions of S.103, Cr.P.C. was also mis-conceived, inasmuch as S.25 of Control of Narcotic Substances Act, 1997, had specifically ousted applicability of 5.103, Cr.P.C.---Raid having been conducted as a result of tip given to police officials when they were on routine `Gasht', it was not possible for them to have completed the time consuming formalities at the cost of disappearance of accused---Such omission on part of Investigating Officer was not fatal to prosecution and would not vitiate the trial---Report of Analyst was found in positive, which had supported prosecution story as well as recovery of narcotic in the case---Delay in sending incriminating articles to concerned quarters for expert opinion could not be treated fatal in absence of objection regarding same having been tampered with or manipulated---Prosecution had successfully brought home guilt to accused beyond any shadow of doubt---Defence had failed to extract any material discrepancy or contradiction from statement of prosecution witnesses---Impugned judgment of Trial Court was maintained and upheld.

Muhammad Naeem v. State 1992 SCMR 1617; Muhammad v. State PLD 1981 SC 635; Hayat Bibi v. Muhammad Khan 1976 SCMR 128 and Yaqoob Shah v. The State PLD 1976 SC 53 ref.

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

----S. 9(b)---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5---Appreciation of evidence---Delay in sending sample to Forensic Science Laboratory and delay in receiving report---Accused had contended that sample separated from seized Charas was received by Forensic Science Laboratory after considerable delay and report received after eleven days of seizure of narcotics, was illegal and had rendered seizure invalid in the eye of law---Validity---Contention was without force in view of Rules 4 & 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001, which had placed no bar on Investigating Officer to send samples beyond seventy-two hours of seizure, receive report after fifteen days and report so received to place before Trial Court---Rules 4 & 5, which were directory and not mandatory, could not control substantive visions of Control of Narcotic Substances Act, 1997 which were to be applied in such a manner that its operation would not frustrate the purpose of the Act under which those were framed---Failure to follow said Rules, would not render search, seizure and arrest under Control of Narcotic Substances Act, 1997 an absolute nullity and make entire prosecution case doubtful, except for consequences provided in Control of Narcotic Substances (Government Analysts) Rules, 2001 -In case of directory provisions substantial compliance was sufficient and even where there was 'o compliance at all, act would not be invalidated by such non-compliance, if the act otherwise was done in accordance with law---Delay otherwise in sending incriminating articles to concerned quarter for expert opinion, could not be treated fatal in absence of objection regarding same having been tampered with or manipulated.

Muhammad Mushtaq v. State PLD 2001 SC 107 ref.

Mushtaq Ahmad for Appellant.

Nizar Muhammad, D.A.-G. for the State.

Date of hearing: 10th October, 2005.

PCRLJ 2006 PESHAWAR HIGH COURT 252 #

2006 P Cr. L J 252

[Peshawar]

Before Dost Muhammad Khan, J

Haji KHAN SHERIN and another----Petitioners

Versus

SIRAJ and another----Respondents

Criminal Miscellaneous No.357 of 2005, decided on 28th November, 2005.

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

----S. 497---Bail, grant of---Principles---Provisions of S.497, Cr.P.C., had provided sufficient guidelines and had vested the Magistrate, the Sessions Court and the High Court with concurrent powers in the matter of grant of bail---Once bail was granted by a competent Court for valid reasons on consideration of materials available before it, then the court higher in rank would exercise considerable restraint in interfering with such order because liberty of a man was equally precious and guaranteed which could not be disturbed except in accordance with law and according to salutary principles laid down in that regard.

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

----S. 497---Qanun-e-Shahadat (10 of 1984), Art.46---Grant of bail in a case of dying declaration---No doubt in a case of dying declaration Courts, at bail stage, had to take extra degree of care and caution while making tentative assessment of it along with other relevant materials placed before it, but no legal or statutory bar was placed on Courts' powers to grant bail in a case based on a dying declaration---Law makers never intended to place absolute or complete embargo on grant of bail in a criminal case based on a dying declaration---Judicial prudence, however, required that such cases be looked at with care and caution and principle of tentative assessment of material was to be followed with extra care and caution while recording findings so that legal worth and value of same was neither diminished nor prejudice was caused to it---Court, however could not decide bail petition in vacuum for the simple reason that because assessment of dying declaration was involved---Refusing the grant of bail on such ground alone would not be a correct approach to subject as same would amount to incorporating additional embargo/prohibition into the provision of sub-section (1) of S.497, Cr.P.C., which was not within the competence and jurisdiction of the Courts---Dying declaration like statement of any other witness including injured witness was to be measured on the same yardstick which was used and applied to other cases---Surrounding facts and circumstances of a case could not be lightly ignored.

----S. 497---Qanun-e-Shahadat (10 of 1984), Art.46---Penal Code (XLV of 1860), Ss.302, 109 & 34---Bail, grant of---Further inquiry---Dying declaration---Role of proverbial Lalkara had been attributed in dying declaration to accused who was undeniably 80 years old and was suffering from cardio-vascular disease an infirmity of a grave nature while co-accused had been attributed ineffective firing---Deceased had sustained a solitary entry wound of 1/2 inch x 1/2 inch size on left hip with no exit wound---Question of vicarious liability of said accused certainly needed serious consideration---No empty had been recovered from the point attributed to accused to show his participation in commission of crime---Accused having been charged directly in F.I.R. which had become dying declaration, ipso facto, would not establish his participation in the crime---Dying declaration like any other statement was divisible---Principle of vicarious liability of an accused required stringent proof---Mere bald allegation would not be sufficient to refuse bail to an accused for his being vicariously liable for commission of crime---Some sort of corroboratory evidence was definitely required to connect him with commission of crime like this principal accused---What should be the degree and quality of material/evidence to hold him vicariously liable, no hard and fast rule could be laid down in that regard---Total absence of corroboratory material/evidence, however, would bring the case of such an accused within ambit of subsection (2) of S.497, Cr.P.C. and he would be entitled to bail as of right---Accused was allowed bail, in circumstances.

Tawaib Khan and another v. The State PLD 1970 SC 13 ref.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302, 109 & 34---Cancellation of bail---Principles---Principles granting and canceling bail were entirely different from one another---For cancellation of bail granted by a competent Court, very strong and cogent reasons were required; for instance, if bail granting order was perverse or in disregard of well-settled principles regulating the grant of bail or it was based on no materials/evidence bail could be cancelled---At the time of cancellation of bail of accused in the present case, challan was already drawn and was ripe for submission to the Trial Court and trial thereafter commenced within a week's time---Such was not a proper stage for cancellation of bail on consideration of merits of case which was against well-established principle and on that score too order of Trial Court canceling bail could not be maintained.

Tariq Bashir v. State PLD 1995 SC 35 ref.

Ghulam Mustafa Swati and M. Arshad Awan for Petitioners.

M. Swati, Shad Muhammad Khan for Respondent

Waliullah Khan Khidder for the State.

Date of hearing; 28th November, 2005.

PCRLJ 2006 PESHAWAR HIGH COURT 284 #

2006 P Cr. L J 284

[Peshawar]

Before Fazlur Rehman Khan, J

SHAWAR GUL and others----Appellants

Versus

THE STATE and another----Respondents

Criminal Appeal No.32 and Criminal Revision No.5 of 2005, decided on 24th November, 2005.

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

----Ss. 334, 337-A(ii), 337-F(i) & 34---Appreciation of evidence---No delay took place in lodging of F.I.R. and alleged delay of 2 hours in lodging the F.I.R. was not fatal to prosecution case in view of the fact that distance between place of occurrence and police station was 5/6 Kms,---Complainant was medically examined by doctor 30 minutes after lodging of report and during that period complainant must have lost his full senses, on account of which, he was not oriented to time and place---F.I.R., in circumstances, could not be said to be highly doubtful---Contention of accused that no fracture had been caused to the ribs of complainant, on account of which, spleen could have been shattered, was repelled because doctor who had examined complainant, had stated in cross-examination, that it was net necessary that before rupture of spleen, over-lying structure would also be damaged---Accused, however, was not proved to be previous convict, nor habitual or hardened desperate or dangerous criminal---Accused could not be punished for an offence of hurt with imprisonment as Ta'zir in view of the facts and circumstances of the case---Conviction of accused was maintained, but his sentence of 3 years' R.I. recorded under S.337-A(ii), P.P.C. was converted into payment of Arsh equal to 5% of Diyat amount and his sentence of imprisonment of 7 years' R.I. recorded under S.334, P.P.C. was also converted into payment of Arsh, instead of payment of fine which would be paid by him in instalments; accordingly.

Aurangzeb v. The State and another 1999 PCr.LJ 230 and PLD 2001 Central Statutes 156 ref.

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

----Ss. 334, 337-A(ii), 337-F(i) & 34---Appreciation of evidence---Co accused at the time of occurrence was empty-handed and even his presence on the spot had not been proved beyond reasonable doubt, in order to attract S.334, P.P.C. to his case---No evidence was on record, except statement of complainant that the co-accused was also present at the spot---Presence of co-accused on the spot being not free from doubt, his convictions and sentences, were liable to be set aside---Appeal of said co-accused was accepted and he was acquitted of charge levelled against him and he was released.

Gohar Zaman Kundi for Appellant.

Shaukat Hayat Khan Khakwani for the Complainant/ Respondent No.2.

Muhammad Yaqoob Marwat for the State.

Date of hearing: 24th November, 2005.

PCRLJ 2006 PESHAWAR HIGH COURT 301 #

2006 P Cr. L J 301

[Peshawar]

Before Ijaz-ul-Hassan Khan and Salim Khan, JJ

SAJID MUHAMMAD----Appellant

Versus

THE STATE----Respondent

Jail Criminal Appeal No.840 of 2004, decided on 24th October, 2005.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S.340---Appreciation of evidence---Right of accused to be defended---Accused remained unrepresented throughout the proceedings and was prejudiced in his defence---Only on one date attendance of counsel for accused had been marked, but no power of attorney of said counsel was on the file---Under section 340, Cr.P.C., an accused had a statutory right to be defended by a counsel---Statutory right of an accused, particularly in a .case entailing capital punishment, could not be abridged by appointment of counsel a day or two before trial---Where it was discovered on the date fixed for the trial that accused was without counsel, postponement of trial would become necessary---Section 340, Cr.P.C. implied that accused would have a reasonable opportunity, if in custody, of getting into communication with his pleader and preparing for his defence---Full opportunity should be given to under-trial prisoner to consult his legal advisors and all reasonable facilities should be afforded to him for conduct of his defence---Impugned judgment of conviction was set aside and case was remanded to Trial Court with direction to decide same afresh giving a fair chance to accused to engage counsel---If the accused was not in a position to arrange counsel due to financial constraints, same would be arranged at State expenses.

Jan Alam Khan for Appellant.

Muhammad Khalid Khan for the State.

Date of hearing; 5th October, 2005.

PCRLJ 2006 PESHAWAR HIGH COURT 316 #

2006 P Cr. L J 316

[Peshawar]

Before Dost Muhammad Khan and Jehan Zaib Rahim, JJ

FIDA MUHAMMAD-Petitioner

Versus

THE STATE----Respondent

Criminal Appeal No.50 of 2005, decided on 30th September, 2005.

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

----Ss. 9(c), 20, 21 & 22---Criminal Procedure Code (V of 1898), Ss.516-A & 537---Appreciation of evidence---Non-obtaining of warrant and non-issuance of notice to accused before destruction of contraband Charas---Legality---Accused had contended that despite spy information, warrant under S.20 of Control of Narcotic Substances Act, 1997 was not obtained from the Court before raiding his house; that notice was not issued to him before destruction of contraband Charas and that seized Charas was destroyed by the order of Magistrate and not on the direction of Special Judge---No doubt, before raiding the house of accused no search warrant. was obtained from competent Court, but cogent reasons for not obtaining search warrant had been provided by raiding officer in Murasila as well as in his deposition in the Court wherein he had stated that accused would have shifted narcotics at any time to some other unknown place where it would become difficult for him to recover narcotics and that paucity of time required him to take prompt action and due to such reasons he could not approach the competent Court to obtain search warrant---Provisions of Ss.20, 21 & 22 of Control of Narcotic Substances Act, 1997, being directory, non-compliance thereof would not be a ground for holding the trial/conviction bad in the eye of law and it would be an irregularity curable under S.537, Cr.P.C.---Non production production of destruction certificate at the trial had not prejudiced case of accused in any manner, which, at the most, could be considered as an irregularity curable under S.537, Cr.P.C. and would not affect the factum of recovery from possession of accused and its proof at the trial---Proviso to S.516-A, Cr.P.C., did not contemplate hearing of accused before taking sample and destroying seized narcotics---Notice of hearing, otherwise was not required to be served, where proceedings did not relate to any proprietary right, unless accused claimed that he had a right, legal or otherwise to possess narcotics and narcotics seized from his possession could not be destroyed without notice, which was not the case of accused before Trial Court---Destruction of seized narcotics was witnessed by independent witnesses having no ill-will against accused to depose falsely against him.

Fida Jan v. State 2001 SCMR 36; Muhammad Hanif v. State 2003 SCMR 1237; State v. Bashir PLD 1997 SC 408; Shivbhat v. Emperor AIR 1928 Born. 162; State v. Hemjoo 2003 SCMR 881; Wajid Ali Shah v. State 2002 MLD 1982; Naseer Ahmad v. State 2004 SCMR 1361 and Ali Ahmad v. State 2003 SCMR 54 ref.

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

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Recovery proceedings---Accused had contended that as per statement of prosecution witness independent witnesses were available at the scene of occurrence, but they were not associated with investigation to have witnessed proceedings of search, recovery and seizure---Validity---Place of occurrence, though was situated in Abadi and there were houses around and private witnesses were easily available at the relevant time, and the contention could be relevant with reference to general law contained in S.103, Cr.P.C., but could not be so under Control of Narcotic Substances Act, 1997 wherein S.25 of the Act had expressly excluded application of S.103, Cr.P.C. to cases registered under the Act---Police officials being public servants, were as good witnesses as other private witnesses unless it was proved that they had personal grudge against accused---No evidence was on record to substantiate, allegations of accused that prosecution witnesses had enmity with him or had any malice towards him and due to that malice, he was falsely implicated in the case and real culprit was left free.

Fida Jan v. State 2001 SCMR 36; Muhammad Hanif v. State 2003 SCMR 1237; Hayat Bibi v. Muhammad Khan 1976 SCMR 128; Yaqoob Shah v. State PLD 1976 SC 53; Muhammad Naeem v. State 1992 SCMR 1617; Muhammad v. State PLD 1981 SC 635; Nadir Khan v. State 1988 SCMR 1899; Ali Muhammad v. State 2003 SCMR 54 and Muhammad Hashim v. State PLD 2004 SC 856 ref.

----Ss. 9(c) & 29---Appreciation of evidence---Prosecution had proved the guilt of accused beyond reasonable doubt and had successfully discharged its burden through consistent and confidence inspiring evidence---Accused was supposed to have shown that Charas was not recovered from his possession or substance so recovered was not Charas, but was some other commodity---Statutory burden under S.29 of Control of Narcotic Substances Act, 1997 was on accused who should have discharged same through cogent evidence in order to prove his innocence, but he did not do so--Accused had only denied the charge, pleaded innocence and that he was arrested in a hotel and was involved in the case due to his quarrel with A.N.F. officials---Evidence led by accused in support of his innocence, was not sufficient to prove him innocent and no reason was given to show that he was falsely involved in case, particularly where officials who had performed official duties, had no animosity with accused and he was not previously known to them---Conviction and sentence awarded to accused by Trial Court, were upheld.

M. Saeed Akhtar for Appellant.

M. Khalid Khan, S.P.P. for the State.

Date of hearing; 30th September, 2005.

PCRLJ 2006 PESHAWAR HIGH COURT 547 #

2006 P Cr. L J 547

[Peshawar]

Before Muhammad Qaim Jan Khan and Ijaz-ul-Hassan Khan, JJ

RAHIM KHAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.171 of 2004, decided on 21st November, 2005.

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

----S. 13---Appreciation of evidence---Prosecution witnesses who had remained absolutely consistent, coherent and had successfully faced the test of cross-examination, had fully proved case against accused beyond any shadow of doubt---No reason was available for false implication of accused in the case---Accused had failed to bring on record any mala fide or ulterior motive on the part of police to falsely implicate him in the case---Defence had not been able to shatter testimony of prosecution witnesses, who had fully supported prosecution story and could not pin-point any ill-will, which could have prompted them to depose falsely against accused Mere fact that said witnesses belonged to police department, by itself, could not be considered a good ground to discard their statements---Prosecution, in circumstances had successfully brought home the guilt of accused and defence had failed to extract any material discrepancies or contradictions from the statements of prosecution witnesses---Accused did not appear as his own witness as required under S.340(2), Cr.P.C. to contradict prosecution story which was fatal to his case---Impugned judgment of Trial Court whereby accused was convicted and sentenced, was maintained in circumstances.

Muhammad Naeem v. State 1992 SCMR 1617 ref.

S. Asif Shah for Appellant.

Sajjad Ali for the State.

Date of hearing: 27th October, 2005.

PCRLJ 2006 PESHAWAR HIGH COURT 556 #

2006 P Cr. L J 556

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

SHAH JEE and another----Petitioners

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.1190 of 2005, heard on 6th December, 2005.

Criminal Procedure Code (V of 1898)---

--S. 497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14---Penal Code (XLV of 1860), Ss.452, 427 & 34---Bail, grant of---Accused were in jail ever since their arrest--Offences for which accused were charged, did not fall within the prohibitory clause of S.497, Cr.P.C.---Mere fact that challan had already been submitted in the Court, by itself, could not be considered a good ground to refuse concession of bail to accused, if otherwise his case was found fit for grant of bail---Accused could not be allowed to remain in jail as hostages for the reason that one of their brothers was absconding in the case---Accused were admitted to bail, in circumstances.

Nazir Nadeem v. The State 2002 PCr.LJ 160; Abdul Hameed Khan v. The State 2003 PCr.LJ 1302; Nasir Baig v. The State 2003 PCr.LJ 1306 and Gulap Khan v. The State PLD 2004 Pesh. 125 ref.

Muhammad Saleem Khan for Petitioners.

Obaidullah Anwar, Addl. A.-G. for the State.

Sahibzada Asadullah for the Complainant.

Date of hearing: 6th December, 2005.

PCRLJ 2006 PESHAWAR HIGH COURT 714 #

2006 P Cr. L J 714

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

YOUSAF KHAN----Petitioner

Versus

THE STATE----Respondent

Jail Criminal Appeal No.582 of 2005, decided on 3rd February, 2006.

Penal Code (XLV of 1860)---

---S. 489-C--Criminal Procedure Code (V of 1898), Ss,103 & 510--Appreciation of evidence-Prosecution witnesses had demonstrated complete unanimity on all important aspects of the case and accused were unable to point out any discrepancy or infirmity in their statements, so as to create a dent in prosecution case--Prosecution witnesses had successfully passed the test of cross-examination--No material contradictions or discrepancies were in evidence of said prosecution witnesses---Inconsistencies referred by defence, were neither material nor of any consequence and could not be made ground for securing acquittal of accused--Minor inconsistencies in depositions of prosecution witnesses being of inconsequential nature, could not reasonably be considered as ground in disbelieving independent and disinterested witnesses---Evidence of prosecution was very convincing and witnesses had no enmity, grudge or motive to falsely implicate accused in the case--Police officials were as good witnesses as compared to any other witness---Submission that compliance of provisions of S.103, Cr.P.C. was not made in the case as no two respectable persons of the locality were associated, had no force---Main aim and object of enacting S.103, Cr.P.C., was to ensure that the search and recovery was conducted honestly and fairly and to exclude any possibility of concoction and transgression and did not mean to disbelieve the statements of official witnesses in any other circumstances---Submission of counsel for accused that prosecution witness Assistant Currency Officer, State Baldk of Pakistan, was not an expert witness within the meaning of S.510, Cr.P.C. and his report should not have been relied upon, was equally devoid of force--Said objection was not raised during the trial--Report of Expert was in positive and fully supported prosecution version--Conclusion drawn and reasons advanced by the Trial Court, had shown fair evaluation of evidence, which was in accordance will, settled principles of 'criminal jurisprudence--In absence of any illegality or infirmity in impugned order, there was no justification to set aside same.

Kala v. The State 1981 PCr.LJ 472 and Feroz Shah v. The State 2002 PCr.LJ 1470 ref.

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

----S. 103---Search and recovery proceedings---Main aim and object of enacting of S.103, Cr.P.C., was to ensure that search and recovery was conducted honestly and fairly and to exclude any possibility of concoction and transgression--Section 103, Cr.P.C. was never meant to disbelieve statements of official witnesses in any other circumstances.

Ms. Farhana Marwat for Appellant.

Syed Manzoor Ahmad for the State.

Date of hearing: 3rd February, 2006.

PCRLJ 2006 PESHAWAR HIGH COURT 726 #

2006 P Cr. L J 726

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

SHERIN MUHAMMAD----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1400 of 2005, decided on 10th February 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of' 1997), S.9---West Pakistan Arms Ordinance (XX of 1965), S.13---Bail, grant of--Further inquiry---Contraband Charas weighing 1130 grams had been recovered from the house of accused during raid, which quantity marginally exceeded the limit of thousand grams---Being a border line case between clause (b) and (c) of S.9 of Control of Narcotic Substances Act, 1997, same was a point of discussion and further inquiry to determine guilt of accused---Report or Chemical Examiner regarding allegedly recovered Charas, had not been received---Accused, who was first offender was in jail ever since his arrest---Accused was admitted to bail, in circumstances.

Taj Ali Khan v. The State 2004 YLR 439 ref.

Arshad Samad for Petitioner.

Malik Manzoor Hussain for the State.

Date of haring: 10th February. 2006.

PCRLJ 2006 PESHAWAR HIGH COURT 744 #

2006 P Cr. L J 744

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

KHAN SHAH----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.506 of 2005, decided on 7th February, 2006.

(a) Explosive Substances Act (VI of 1908)---

----Ss. 5 & 5-A---West Pakistan Arms Ordinance (XX of 1965), S.13---Appreciation of evidence---No enmity, mala fides, ill-will and ulterior motive were found on the part of witnesses---Submission that compliance of provisions of S.103, Cr.P.C. was not made in the case as no two respectable persons of the locality were associated, had no force---Main aim and object of enacting S.103, Cr.P.C., was to ensure that search and recovery were conducted honestly and fairly and to exclude any possibility of concoction and transgression and the provision never meant to disbelieve statements of official witnesses---Counsel for accused, had not been able to point out any serious defect in investigation, other than certain minor lapses which did not affect the validly of the trial---Mere fact that arms and ammunition were dispatched to the Expert for opinion belatedly or photocopy of the sanction was placed on the record, by itself, could not be considered a good ground to create dent in the prosecution case to vitiate the trial---Submission of counsel for accused, was repelled, being not tenable---Prosecution had fully established its case against accused beyond reasonable doubt---Evidence led by prosecution had been appreciated in a legal way and no case of misreading or non-reading of evidence had been made out---Conviction of accused was maintained-Accused was the first offender, who was a young man of 30 years and entire future was before him---Sentence of seven years' R.I. awarded to accused under S.5 of Explosive Substances Act, 1908, was reduced from seven years' R.I. to five years' R.I.---Sentence awarded to accused under S.13 of West Pakistan Arms Ordinance, 1965, would remain however, intact.

State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408; Muhammad Shaft v. The State PLD 1987 FSC 16; Ashiq Ali v. The State 2002 PCr.LJ 450; Muhammad Siddique v. The State 2005 PCr.LJ 726 and Feroz Shah v. The State 2002 PCr.LJ 1470 ref.

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

----S. 103---Search and recovery proceedings---Main aim and object of enacting 5.103, Cr.P.C. was to ensure that search and recovery were conducted honestly and fairly and to exclude any possibility of concoction and transgression---Section 103, Cr.P.C. was never meant to disbelieve statements of official witnesses.

Tafseel Khan Afridi for Appellant.

Amin-ur-Rehman for the State.

Date of hearing: 20th January, 2006.

PCRLJ 2006 PESHAWAR HIGH COURT 752 #

2006 P Cr. L J 752

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

AMER CHAND----Appellant

Versus

THE STATE----Respondent

Jail Criminal Appeal No.745 of 2005, decided on 3rd February, 2006.

Penal Code (XLV of 1860)---

----Ss. 489-B & 489-C---Appreciation of evidence-All prosecution witnesses had fully supported prosecution story---Said prosecution witnesses had demonstrated complete unanimity on all important aspects of the case and faced the test of cross-examination successfully---No describable discrepancy or lacuna was found out in prosecution evidence to suggest that recovery had not been effected in the manner as stated by prosecution witnesses---Inconsistencies referred on part of accused were neither material nor of any consequence and could not be made ground for securing acquittal of accused---Evidence of prosecution was very convincing and witnesses had no enmity, grudge or motive to falsely implicate accused in the case---Recovery of counterfeit currency, no doubt was witnessed by the police officials, but they were as good witnesses as private and no legal bar had been imposed upon them to become witnesses of recovery and unless any mala fide was established against them, their deposition could not be brushed aside simply on the ground that they belonged to the police department---Submission of counsel for accused that mandatory provisions of S.103, Cr.P.C. had been violated and non-compliance of that inviolable rule had rendered prosecution story open to serious defect, was not tenable---Mere assertion of accused that he had been falsely implicated iii the case, without a positive attempt on his part to substantiate same, was of no consequence---Case of accused, however, fell within the purview of S.489-C, P.P.C. and not 489-B, P.P.C.---Sentence awarded to accused being excessive, same was reduced from five years' R.I. to 4 years' R.I. and amount of fine was also reduced from Rs.50,000 to Rs.30,000 accordingly.

Muhammad Nasim v. The State 1992 SCMR 1617 ref.

Sadia Siddiqui for Appellant.

Aminur Rehman for the State.

Date of hearing: 3rd February, 2006.

PCRLJ 2006 PESHAWAR HIGH COURT 755 #

2006 P Cr. L J 755

[Peshawar]

Before Ijaz-ul-Hassan Khan and Muhammad Raza Khan, JJ

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

Versus

SHAUKATULLAH and another----Respondents

Criminal Appeal No.35 of 2002, decided on 24th February, 2006.

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

----Ss. 302, 324 & 34---Conviction---Court, while convicting an accused for an offence, particularly in a case in which capital sentence is provided has to be fully convinced that accused facing trial, is the only person responsible for committing the offence, and that there is not even the slightest doubt about his false implication.

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

----S. 417---Penal Code (XLV of 1860), Ss.302, 324 & 34---Appeal against acquittal---Incident was a blind murder and occurrence had not taken place in the manner and mode as suggested---Substantive evidence in the shape of eye-witnesses account being not free from doubts, corroborative evidence of recovery and medical evidence, if plausible, was of no avail to prosecution---Whole prosecution case was shrouded in mystery and was full of doubt which was appearing at every step and motive set up in F.I.R. had not been satisfactorily established---Depositions made by the eye-witnesses did not fit in the circumstances of the case, which had made their presence highly doubtful at the place of occurrence and rendered their testimony worthless---Abscondence, though was a weak type of evidence and same per se was not sufficient to prove the guilt of accused, but it could be considered as one of the circumstances where there was sufficient evidence, direct or circumstantial of unimpeachable character to connect accused with the guilt---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 superior Courts did not interfere unless impugned order was arbitrary, capricious, fanciful and against the record---Judgment returned by the Trial Court was a fair judgment, based on proper, just and legal appreciation of evidence on record---Appellant had failed to show that impugned judgment of acquittal was fanciful or based on no evidence---Appeal against acquittal was dismissed and judgment of acquittal was maintained.

Rajab alias Rajoo alias Nang and another v. The State 2006 SCMR 175; Muhammad Iqbal and others v. Muhammad Akram and another 1996 SCMR 908; Mushtaq Ahmad Malik v. Muhammad Sunawar Choudhary and another 2003 YLR 406; Abdul Ghaffar v. The State and another 2005 PCr.LJ 1644; Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477; Khadim Hussain v. Manzoor Hussain Shah and 3 others 2002 SCMR 261; Ghulam Sikandar v. Mamraz Khan PLD 1985 SC 11 and Muhammad Iqbal v. Sanaullah PLD 1997 SC 569 and State v. Farman Hussain PLD 1995 SC 1 ref.

Ehsan-ul-Haq Malik for the State.

Sultan Shehryar Khan Marwat for Respondents.

Date of hearing: 24th February, 2006.

PCRLJ 2006 PESHAWAR HIGH COURT 830 #

2006 P Cr. L J 830

[Peshawar]

Before Salim Khan, J

TAJ MUHAMMAD----Petitioner

Versus

THE STATE----Respondent

Criminal Bail Application No.704 of 2005, decided on 12th September, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of---Forensic Science Laboratory report had been received with delay---Complete challan could be submitted to the Trial Court in accordance with provisions of law well within time or immediately after that---Accused had already spent more than four months behind the bar---Prosecution had not argued that accused might abscond, if he was released on bail through sufficient bail bond of local, reliable and men of financial means sureties---Prosecution had the chance to submit bail cancellation petition to the competent Court, if accused would not follow the conditions of bail bond---Accused was admitted to bail, in circumstances.

1998 NLR SD 45; 1996 PCr.LJ 116; PLD 1996 Kar. 557; PLD 1972 SC 277; PLD 1996 SC 504; 2005 PCr.LJ 1245; Criminal Bail Application No.1315 of 2003; Criminal Miscellaneous Bail Application No.508 of 2004; Criminal Miscellaneous Bail Application No.851 of 2004 and Criminal Miscellaneous Bail Application No.1195 'of 2005 ref.

Noor Alam Khan for Petitioner.

Obaidullah Anwar, A.A.-G. for the State.

Date of hearing: 12th September, 2005.

PCRLJ 2006 PESHAWAR HIGH COURT 835 #

2006 P Cr. L J 835

[Peshawar]

Before Tariq Parvez Khan, C.J. and Muhammad Qaim Jan Khan, J

MUHAMMAD UMAR----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.340 of 2005, decided on 16th February, 2006.

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

----S. 9(c)---Appreciation of evidence---Murasila as well as statements of two Police Officers showed that bag containing Charas in question was taken by a Head Constable who searched it---Said Head Constable had been abandoned for no reason---In presence of said high ranking police officers, it could not be understood as to why said Head Constable had taken the bag from accused and why he had searched the same---Presumption would be that in absence of production of said Head Constable, recovery was not made in presence of S.H.O. concerned---Both prosecution witnesses had admitted that bag allegedly recovered from accused, carried thereon the name of other person with telephone number---Possibility, in circumstances, could not be ruled out that it was the bag belonging to said other person, who left it either unattended or escaped with connivance of abandoned Head Constable---Certain personal belongings were recovered from the bag, but none of such belongings had been connected with the accused---Conviction and sentence awarded to accused by the Trial Court, were set aside and he was acquitted of the charge and set free extending him benefit of doubt.

Noor Alam Khan for Appellant.

Salahuddin Khan, D.A.-G. for the State.

Date of hearing: 16th February, 2006.

PCRLJ 2006 PESHAWAR HIGH COURT 840 #

2006 P Cr. L J 840

[Peshawar]

Before Malik Hamid Saeed, J

INAYAT ULLAH----Petitioner

Versus

THE STATE----Respondent

Criminal Bail Petition No.1195 of 2004, decided on 22nd October, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)---Bail, grant of---Further inquiry---Report of the Laboratory revealed that sample was received in Laboratory about 15 days after registration of case against accused, whereas according to R.4(2) of Control of Narcotic Substances (Government Analysts) Rules, 2001, same was to be sent within 72 hours---Violation of said Rule had made case against accused that of further inquiry---While considering the question whether a case fell within prohibition contained in subsection (1) of S.497, Cr.P.C., the Courts were not supposed to keep in view only maximum sentence provided in the law but if in a particular case, the Court was in a position to come to a conclusion, even at bail stage, that prosecution case taken to its extreme, would not entail maximum punishment, same would go out of the prohibition clause of S.497(1), Cr.P.C.---Such circumstances, having made the case against accused that of further inquiry, accused was entitled to concession of bail under subsection (2) of S.497, Cr.P.C.

PLD 1972 SC 277 ref.

Noor Alam. Khan for Petitioner.

Pir Liaqat Ali Shah, A.A.-G. for the State.

Date of hearing: 22nd October, 2004.

PCRLJ 2006 PESHAWAR HIGH COURT 846 #

2006 P Cr. L J 846

[Peshawar]

Before Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

IQBAL KHAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.533 of 2005, decided on 27th January, 2006.

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

----Ss. 9(c), 21, 25, 29, 35 & 36---Criminal Procedure Code (V of 1898), S.103---Penal Code (XLV of 1860), S.75---Appreciation of evidence---Prosecution, in order to establish its case had produced two witnesses---Defence could not prove as to why police would involve accused falsely, specially when none of the raiding party had any enmity against him---Was beyond comprehension that a huge quantity of Charas weighing 1270 grams would be planted by the police in the case---Prosecution witnesses were consistent regarding the time, place of occurrence and recovery of contraband Charas in the manner in which it had been effected---Discrepancies pointed out by defence were minor in nature and insignificant---Provisions of Ss.35 & 36 of Control of Narcotic Substances Act, 1997 did not specify any particular quantity of the recovered substance to be sent as a sample for general analysis---Even otherwise S.29 of Control of Narcotic Substances Act, 1997 required a presumption to be raised in such a case regarding allegation levelled against accused to be true in its entirety and it was for the accused to rebut such an allegation---Contention that only a small quantity of substance allegedly recovered from accused having been sent for Chemical analysis, it was only that quantity which could be considered against accused and not remaining substance, which was not sent for Chemical analysis, was repelled, in circumstances---Section 25 of Control of Narcotic Substances Act, 1997 having excluded application of S.103, Cr.P.C., contention that compliance of S. 103, Cr.P.C. was mandatory, was repelled---No legal prohibition existed for a Police Officer to be complainant if he was a witness to the commission of an offence and also to be an Investigating Officer---Accused had not alleged the recovery of substance being not Charas or narcotic before the Trial Court or High Court---Report of Chemical Examiner received back was found in positive, which had supported prosecution story as well as recovery of narcotics---No serious defect in investigation, had been pointed out by accused---Evidence led by prosecution had been appreciated by the Trial Court in a legal fashion and no case of misreading or non-reading of evidence had been made out---Prosecution, in circumstances had succeeded in establishing its case against accused beyond shadow of doubt---Trial Court having already taken a lenient view while awarding sentence to accused, order of the Trial Court could not be interfered with---Impugned judgment of the Trial Court was maintained and upheld.

State through A.-G. Sindh Karachi, v. Mahmood 2003 SCMR 881; Allah Wasayo v. The State, 1999 PCr.LJ 1033; Zar Gul v. The State 2003 PCr.LJ 1392; Jameel Khan v. The State 2003 PCr.LJ 1139; Nasrullah v. The State PLD 2001 Pesh. 152; Farid Gul v. The State 2002 PCr.LJ 1810; Shahmore v. The State PLD 2003 Kar. 230; Johar Ali and another v. The State 2003 PCr.LJ 680; Muhammad Tariq v. The State 2003 PCr.LJ 248; Fida Jan v. The State 2001 SCMR 36; State v. Muhammad Amin 1999 SCMR 1367; State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408 and Mashal Khan v. The State 2005 PCr.LJ 254 ref.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5---Appreciation of evidence---Delay in sending samples for analysis---Counsel for accused had submitted that samples separated from the seized Charas were sent after three months and sixteen days delay of seizure and in that process sufficient time had been consumed and in view of Rules 4 & 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001, samples dispatched for analysis beyond seventy two hours and report received, was illegal; and had rendered the seizure invalid in the eye of law---Submission was repelled as Control of Narcotic Substances (Government Analysts) Rules, 2001 had placed no bar on Investigating Officer to send the samples beyond seventy two hours of the seizure, receive Forensic Science Laboratory report after fifteen days and report so received to place before the Trial Court---Said Rules were directory in nature and not mandatory---Said Rules could not control substantive provisions of Control of Narcotic Substances Act, 1997 and to be applied in such a manner that its operation would not frustrate the purpose of said Act under which the Rules, were framed---Failure to follow said Rules, would not render the search, seizure and arrest under Control of Narcotic Substances Act, 1997 an absolute nullity and make entire prosecution case doubtful, except for the consequences provided in Control of Narcotic Substances (Government Analysts) Rules, 2001---Substantial compliance of directory provision was sufficient and even where there was no compliance at all, act was not invalidated by such non-compliance, if the act otherwise was done in accordance with law---Delay otherwise in sending incriminating articles to the concerned quarters for expert opinion, ,could not be treated fatal in absence of objection regarding the same having been tampered with or manipulated.

Hassan Afridi for Appellant.

Akhtar Naveed, Dy. Advocate-General for the State.

Date of hearing: 27th January, 2006.

PCRLJ 2006 PESHAWAR HIGH COURT 887 #

2006 P Cr. L J 887

[Peshawar]

Before Ijaz-ul-Hassan Khan and Fazlur Rehman Khan, JJ

SAID ALAM and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.621 and 653 of 2005, decided on 23rd January, 2006.

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

---Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S.103---Appreciation of' evidence---Sentence, reduction in---Prosecution witnesses were unanimous on all broad features of the case and their statements bore all shades of truthfulness---No reason appeared from the record for the rejection of their testimony---Mere fact that witnesses were official witnesses, would not rob their testimony of its evidentiary. worth---Members of police force were competent witnesses in the eyes of law and could be credited with veracity, unless it could be demonstrated that they were false witnesses and had maliciously involved an innocent person for ulterior motive---Accused had failed to point out any background of bitterness or ill-will between him and recovery witnesses so as to prompt them to falsely implicate him in case of such a nature---Was not believable that Local Police had itself planted such a sizeable ' quantity of contraband Charas upon accused---Report of Chemical Examiner regarding sample of recovered material, was in positive---Discrepancies highlighted in case were minor in nature and insignificant and same were not fatal to main allegation of recovery of narcotics---Provisions of 5.103, Cr.P.C. having been specifically excluded under S.25 of Control of Narcotic Substances Act, 1997 non-association of members of general public in recovery proceedings was not fatal to prosecution case---Case against accused stood fully proved in most convincing and logical manner---Even a single ambiguity or doubt could not be convincingly urged in entire prosecution version and trial---While maintaining conviction of accused, sentences awarded to him being on higher side, was reduced from seven years to four years' R.I.---Fine was also reduced from Rs.20,000 to Rs.10,000.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5---Appreciation of evidence---Delay in sending sample to Forensic Science Laboratory---Accused had contended that as sample separated from seized Charas was sent to Forensic Science Laboratory for analysis beyond 72 hours, report received from the Laboratory was illegal which had rendered seizure invalid in the eye of law---Validity---Control of Narcotic Substances (Government Analysts) Rules, 2001, had placed no bar on Investigating Officer to send samples beyond 72 hours of seizure, receive F.S.L. report after fifteen days and report so received to place before Trial Court---Very language employed in Control of Narcotic Substances (Government Analysts) Rules, 2001, . and effect of its breach provided therein, had made the Rules directory and not mandatory and the Rules could not control substantive provisions of Control of Narcotic Substances Act, 1997---Failure to follow the Rules would not render search, seizure and arrest under Control of Narcotic Substances Act, 1997 an absolute nullity and non-est and make entire prosecution case doubtful, except for consequence provided in Control of Narcotic Substances (Government Analysts) Rules, 2001---Substantial compliance, in directory provision was sufficient and even where there was no compliance at all, act was not invalidated by such non-compliance if the act otherwise was done in accordance with law---Delay, otherwise in sending incriminating articles to concerned quarter for expert opinion could not be treated fatal in absence of objection regarding same having been tampered with or manipulated.

----S. 9(c)---Appreciation of evidence---Co-accused was also convicted and sentenced with accused---Both accused and co-accused were not related to each other---Community of interest between both of them, had not been shown---Mere fact that both of them were travelling in same motor car from which contraband Charas was recovered by the Police party and both of them had also been arrested together by police, by itself, was not sufficient to indicate that community of interest existed between them---Being in joint use and control of motor car at relevant time, accused persons could not be adjudged of a joint responsibility for possession of narcotics---Nothing was on file to prove that co-accused had a hand in the affairs and as such he was in league with accused---Appeal of co-accused was accepted and his conviction and sentence was set aside in circumstances.

Atlas Khan Dagai for Appellant (in Criminal Appeal No.621 of 2005).

Muhammad Jamil (in Criminal Appeal No.653 of 2005).

Abdur Rauf Gandapur for the State.

Date of hearing: 23rd January, 2006.

PCRLJ 2006 PESHAWAR HIGH COURT 978 #

2006 P Cr. L J 978

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

ABDUL JABBAR----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.427 of 2006, decided on 14th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.489-A, 489-B & 489-C---Bail, grant of---Applicability of S.489-B, P.P.C., would be determined at the time of trial---Possession simpliciter of a counterfeit currency note would not 'constitute ingredients of S.489, P.P.C.---Section 489-A, P.P.C. dealt with the sale, purchase, receipt or other trafficking in counterfeit coins/currency notes---Such section also dealt with using of a counterfeit currency note as genuine, whereas section 489-A, P.P.C. dealt with possession of any forged or counterfeit currency note---Contents of F.I.R. did not show that accused was selling or buying counterfeit currency note---Prima facie, the case was covered by S.489-C, P.P.C. and the maximum punishment provided for was imprisonment of either description which could extend to seven years or with fine or with both---Accused was admitted to bail, in circumstances.

Ghulam Dastagir v. The State 2005 PCr.LJ 405 ref.

Yousaf Khan Yousafzai for Petitioner.

Obaidullah Anwar, Dy. A.-G. for the State.

Date of hearing: 14th April, 2006.

PCRLJ 2006 PESHAWAR HIGH COURT 988 #

2006 P Cr. L J 988

[Peshawar]

Before Ijaz-ul-Hassan Khan and Fazl-ur-Rehman Khan, JJ

AMJAD----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.869 of 2005, decided on 13th March, 2006.

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

---Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Prosecution witnesses had fully supported prosecution story---Said witnesses remained absolutely consistent, coherent and had successfully faced the test of cross-examination---Contradictions highlighted by counsel for accused, were of minor nature and those could not be considered sufficient to vitiate the trial or to make the recovery doubtful---Mere fact that witnesses belonged to police Department, by itself could not be considered a good ground to discard their statements---Defence had not been able to shatter their testimony or pinpoint any ill-will, which could have prompted them to depose falsely against accused---Two respectable persons of locality though were not associated, but provision of S.103, Cr.P.C. had been excluded under S.25 of Control of Narcotic Substances Act, 1997---Trial of accused, in circumstances was not bad in law for non-associating two respectable persons of the locality---Onward transmission of four grams sample taken out from total narcotic material recovered from accused to the office of Chemical Examiner, was also proved beyond any shadow of doubt---Positive report of Analyst, had supported prosecution story as well as recovery of narcotic in the case---Delay in sending sample to Forensic. Science Laboratory, was not fatal to prosecution case---Arguments of counsel for accused that sentence awarded to accused was on higher side and did not commensurate with the gravity of offence, were not tenable as the Trial Court had already taken a lenient view and there was no justification to further reduce sentence of accused.

Afsar Khan v. State 2005 PCr.LJ 1858; Mst. Nawshada and another v. The State 2005 PCr.LJ 1966 and Qayum v. The State 2005 PCr.LJ 2034 ref.

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

----Ss. 9(c), 20 & 25---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Non-associating two respectable persons of locality in search and recovery proceedings---Effect---Objection with regard to non-compliance of provisions of S.103, Cr.P.C., had no force; firstly for the reason that provisions of S.103, Cr.P.C. had been excluded under the provisions of S.25 of Control of Narcotic Substances Act, 1997 and secondly said provisions were directory in nature; their non-compliance could not be considered as a strong ground for holding that trial of accused was bad in the eyes of law---Main aim and object of enacting of 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.

Mirza Shah v. State 1992 SCMR 1475 ref.

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules 2001, Rr.4 & 5---Delay in sending sample to Forensic Science Laboratory---Contention of accused was that samples separated from seized Charas were received by Forensic Science Laboratory after considerable delay and that in view of Rules 4 & 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001, samples dispatched for analysis beyond, seventy-two hours and report received, was illegal and rendered the seizure invalid in the eye of law---Contention was repelled because Rr.4 & 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001 had placed no bar on Investigating Officer to send the sample beyond seventy-two hours of the seizure, receive Forensic Science Laboratory's report after fifteen days and the report so received to place before the Trial Court---Very language employed in said Rules and effect of its breach provided therein had made said Rules directory and not mandatory---Control of Narcotic Substances (Government Analysts) Rules, 2001, could not control substantive provisions of Control of Narcotic Substances Act, 1997 and to be applied in such a manner that its operation would not frustrate the purpose of the Act under which said Rules were framed---Failure to follow said Rules would not render search, seizure and arrest under Control of Narcotic Substances Act, 1997 an absolute nullity and non-est and make entire prosecution case doubtful, except for consequence provided in the Rules---Substantial compliance of directory provisions, was sufficient and even where there was no compliance at all, the act was not invalidated by such non-compliance if the act otherwise was done in accordance with law.

Nasrumminallah for Appellant.

Akhtar Naveed, D.A.-G. for the State.

Date of hearing: 13th March, 2006.

PCRLJ 2006 PESHAWAR HIGH COURT 998 #

2006 P Cr. L J 998

[Peshawar]

Before Talaat Qayum Qureshi and Ijaz-ul-Hassan Khan, JJ

ISMAIL----Appellant

Versus

THE STATE and another----Respondents

Criminal Appeal No.937 of 2004, decided on 7th February, 2006.

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

----S. 302(b)---Appreciation of evidence---Matter was reported to the police with promptitude which had ruled out element of fabrication---Oral testimony of complainant and his son remained sufficiently consistent---No material discrepancy could be brought on record during fairly lengthy cross-examination---Testimony was fully supported by Medico-legal and post-mortem report in addition to the recovery of blood stained earth, blood stained stick, spade and 'Chadir' from the spot and positive report of Forensic Science Laboratory---Accused was real nephew of complainant and no previous ill-will or enmity existed between accused and complainant for his false implication---Prosecution case was further supported by confession of accused voluntarily made before Judicial Magistrate who appeared as prosecution witness and confirmed its voluntariness---No material was available to suggest that accused had been coerced or induced to make confessional statement---Facts brought out in judicial confession found corroboration in material circumstances---Details of event given by accused in confessional statement were strong circumstances to establish that confession was true and voluntary---Said confessional statement was not only voluntary, but also rang true and fitted in circumstances of the case and was fully corroborated by recovery of blood stained earth, stick, spade and medical evidence---No reason was found to disbelieve said confessional statement of accused as no illegality had been committed by Magistrate while recording the same---Trial Court had recorded a well reasoned judgment based on correct appreciation of evidence on record which could not be interfered with by High Court in appeal---Appeal having been found destitute of force, was dismissed and impugned judgment was maintained.

Khalid Javed and another v. The State 2003 SCMR 1419; Khuda Bux and another v. The Crown 1969 SCMR 390; Ashique Hussain Chandio v. The State PLD 1992 Kar. 5 and Asfandyar Wall v. The State PLD 1978 Pesh. 38 ref.

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

----Art. 37---Penal Code (XLV of 1860), S.302(b)---Confession---If confession was not confidence inspiring, use of the same to convict a person without independent corroboration was not proper and legal and the Courts generally refrain from passing the conviction solely on retracted confession and while following the rule of abundant caution, look to corroboration in material particulars to ensure safe administration of justice---Court, if was satisfied that confessional statement though retracted was true and voluntary, same could safely be made basis of conviction---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.

Mian Mohibullah Kakakhel for Appellant.

Abdur Raul Gandapur for the State.

Complainant in person.

Date of hearing: 7th February, 2006.

PCRLJ 2006 PESHAWAR HIGH COURT 1061 #

2006 P Cr. L J 1061

[Peshawar]

Before Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

MUHAMMAD AMIN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.522 of 2005, decided on 15th March, 2006.

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

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Sentence, reduction in---Prosecution, in order to prove apprehension of accused and recovery of contraband Charas from his possession, had produced two witnesses---Both said witnesses had supported recovery of 1100 grams of Charas from possession of accused and their evidence had established recovery of Charas at given date, time and place and their incriminating statements, were enough to connect accused with commission of crime---Said witnesses, who were police officials, had made consistent statements on material points and accused had failed to point out any discrepancy in their statements---Contradictions pointed out by counsel for accused were so minor that on basis of those it could not be said that trial of case stood vitiated---Counsel for accused had not urged any rancour or animosity against prosecution witnesses with accused---Police witnesses were competent witnesses in the eyes of law and unless it could be demonstrated that police officials had any motive or reason to falsely implicate accused, their statements could not be discarded only because they happened to be employees of Police Department---In absence of any said motive or reason, Trial Court had rightly believed their evidence---Provisions of S.25 of Control of Narcotic Substances Act, 1997, had specifically excluded application of S.103, Cr.P.C.---Stance of accused that he had been implicated falsely in the case by police in order to show efficiency, had been found to be without any substance---Accused could not point out any serious defect in investigation, other than certain minor lapses which did not affect the validity of the trial---Delay in receiving samples by Forensic Science Laboratory and in submitting report, was not fatal and would not render seizure invalid in the eye of law---In absence of any illegality or infirmity in impugned judgment of the Trial Court warranting interference of High Court, same was maintained---Sentence awarded to accused, however, being not commensurate with the quantity of contraband Charas, was reduced from 5 years to 3 years' R.I. and amount of fine was also reduced from Rs.20,000 to Rs.10,000 accordingly.

Mirza Shah v. State 1992 SCMR 1475 ref.

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

---S. 9(c)-Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5---Appreciation of evidence---Delay in dispatching sample for analysis---Effect---Accused had contended that as samples separated from contraband Charas was dispatched for analysis beyond seventy two hours, report received from Forensic Science Laboratory was illegal and had rendered seizure invalid_ in the eye of law---Contention was repelled because Rr.4 & 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001, had placed no bar on Investigating Officer to send samples beyond seventy two hours of the seizure---Said Rules were directory and not mandatory and same could not control substantive provisions of Control of Narcotic Substances Act, 1997---Failure to follow said Rules would not render search, seizure and arrest under Control of Narcotic Substances Act, 1997 an absolute nullity and non-est and make entire prosecution case doubtful, except for consequences provided in Control of Narcotic Substances (Government Analysts) Rules, 2001---Substantial compliance of directory provisions was sufficient and even where there was no compliance at all, act was not invalidated by such non-compliance, if the act otherwise was done in accordance with law---Delay, otherwise in sending incriminating articles to concerned quarter for expert opinion could not be treated fatal in the absence of objection regarding same having been tampered with or manipulated.

Noor Alam Khan for Appellant.

Pir Liaqat Ali Shah, Addl. A.-G. for the State.

Date of hearing: 15th March, 2006.

PCRLJ 2006 PESHAWAR HIGH COURT 1292 #

2006 P Cr. L J 1292

[Peshawar]

Before Ijaz-ul-Hassan Khan and Jehan Zaib Rahim, JJ

NOWSHAD and another----Appellant

Versus

AMIR ZAMAN and 3 others----Respondents

Criminal Appeal No.317 of 2001, decided on 10th May, 2006.

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

----S. 265-K---Power of Court to acquit accused at any stage---Section 265-K, Cr.P.C., was an exception and same had to be construed strictly---Section 265-K, "Cr.P.C. had been primarily enacted to save an accused person from malicious prosecution=--Accused could be acquitted under S.265-K, Cr.P.C. where, on the evidence on record, there was no possibility of accused being convicted of offence he was charged with---Where Trial Court during process of trial would come to the conclusion that there was no evidence worth the name against accused, it could acquit the accused.

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

----S. 417(2-A)---Penal Code (XLV of 1860), Ss.302, 109, 148 & 149---Appeal against acquittal---All main witnesses had been examined in the case, but none out of them had supported case of prosecution---Remaining witnesses, who were yet to be examined, were only formal witnesses and their evidence, even if brought on record, was not going to improve the case of prosecution---Appeal was barred by time and no incriminating material had been brought on record to implicate accused with commission of crime---Impugned order was unexceptionable and required no interference of High Court.

PLD 1971 Lah. 323; 1999 MLD 330 and 2002 PCr.LJ 806 ref.

Qazi Zakiuddin for Appellant.

Atlas Khan Dagai for Respondents.

Shah Nawaz Khan for the State.

Date of hearing: 25th April, 2006.

PCRLJ 2006 PESHAWAR HIGH COURT 1299 #

2006 P Cr. L J 1299

[Peshawar]

Before Shah Jehan Khan, J

TAJ MIR and 2 others----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.110 with Criminal Revision No.38 of 2006, decided on 24th April, 2006.

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

----Ss. 514, 498 & 439---Penal Code (XLV of 1860), Ss.302, 324 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---West Pakistan Arms Ordinance (XX of 1965), S.13---Ad interim bail---Non-appearance of accused---Forfeiture of bonds of sureties and testifier---Petitioners stood sureties for two accused and other petitioner attested bail bonds as testifier in ad interim bail granted to accused---Accused did not turn up for confirmation of bail and ad interim bail was recalled and bail bonds of petitioners/sureties as well as of testifier, were confiscated---Validity---Proceedings for pre-arrest bail was not a `case' and ad interim order was a temporary relief against the arrest in a particular case, till perusal of record and after requisitioning to order either to confirm or recall ad interim order---For non-appearance of an accused, who was allowed ad interim pre-arrest bail, no action under 5.514, Cr.P.C. could be initiated against sureties because accused had an option either to surrender before the law and face the charge to defend himself or to abscond---If before confirmation of bail granting order accused opted to abscond it would be considered as a circumstance/corroborative evidence towards his guilt---Contents of bail bonds revealed that sureties would be liable for confiscation of bail amount, if accused disappeared when summoned by the Court in the 'case'-No mention of subjecting themselves for producing accused for confirmation of bail was found therein---Trial Court, had wrongly penalized petitioners/sureties and testifier for forfeiture of bail bonds because they stood sureties for appearance of accused when summoned by the Court to face the charge/trial, but when accused opted to disappear and without commencement of process in the Court regarding the charge, no action under S.514, Cr.P.C. could be initiated against sureties and action against testifier could only be taken, if sureties were found to be having no means---After impugned order accused for whom petitioners stood sureties, not only surrendered before the Court, but they were also granted acquittal---Allowing revision, impugned order was set aside by the High Court.

(b) Words and phrases---

----`Ad interim', defined and explained.

Aftab Khan and M. Ali for Petitioners.

Abdul Rauf Gandapur for the State.

Date of hearing: 24th April, 2006.

PCRLJ 2006 PESHAWAR HIGH COURT 1320 #

2006 P Cr. L J 1320

[Peshawar]

Before Hamid Farooq Durrani, J

Malik WASIM AKBAR----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.60 of 2006, decided on 3rd May, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 497, 464 & 465---Penal Code (XLV of 1860), 5.302---Bail, refusal of---Accused was directly charged for murder of one person and injuring the other and he was arrested on the day of occurrence along with crime weapon, which he was wearing on his person along with eight live bullets---Accused had also affirmed the place of occurrence as given in the site plan---Accused, after the occurrence remained in hospital for treatment---Facts narrated in F.I.R. and also perusal of various medical reports would not, entitle accused for his release on furnishing of security or bonds---Medical reports had clearly suggested that accused was comparatively better at the time of examination while he was still not able to defend himself in the Court of law---Said report had also recommended that accused having such an ailment, was to be kept in a secure place like prison---Petition filed on behalf of accused for release on bail, failed and was accordingly dismissed.

1992 MLD 414; 2000 MLD 1574; PLD 1985 Kar. 594; 1981 SCMR 686; 2005 SCJ 277; 1997 SCMR 1275 and 1997 SCMR 239 ref.

Saeed Akbar for Petitioner.

Waliullah Khokhar for the State.

Masood-ur-Rehman for the Complainant.

Date of hearing: 2nd May, 2006.

PCRLJ 2006 PESHAWAR HIGH COURT 1436 #

2006 P Cr. L J 1436

[Peshawar]

Before Tariq Parvez Khan, CJ

MUMTAZ----Petitioner

Versus

MOIN and another----Respondents

Criminal Revision No.208 of 2005, decided on 23rd June, 2006.

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

---Ss. 512 & 190---Cognizance of offences by Magistrate---Sending case to the Court of Session---Recording of evidence in absence of accused---Petitioner/accused, having not been arrested due to his abscondence nor he surrendered, to preserve evidence of witnesses, statements of complainant and an eye-witness, were recorded by Magistrate---By the time petitioner surrendered, said two witnesses having died, could not be produced and their statements recorded under S.512, Cr.P.C., were the only evidence---Section 512, Cr.P.C., was meant for preservation of evidence for eventuality where statutory protection was given to deposition of such witnesses who might not be alive at the time when accused appeared for trial or might have become incapable of giving evidence or their attendance could not be procured without any amount of delay, expense or inconvenience---Section 512, Cr.P.C. had no nexus with taking of cognizance, but it would proceed on its independent existence---Bar on Magistrate not to record any evidence, would apply only, if while taking cognizance of the case the offence, was not triable by him and that accused, who was before him, he would send case to Sessions Judge for trial, whereas provisions of S.512, Cr.P.C. were special provisions for preservation of evidence, where an accused could not be given premium on his abscondence and evidence of witnesses was preserved which could be used against him at a later stage in an inquiry or trial when he would surrender and witnesses whose deposition had been recorded under said section, were either dead or had become incapable of giving evidence, etc.

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

----Ss. 512 & 190(2)---Sending case by Magistrate to Sessions Court without recording evidence---Recording of evidence in absence of accused---Bar as contained under S.190(2), Cr.P.C. on a Magistrate, was limited to the extent that if accused was forwarded to him with challan, he would not record any evidence, if case was exclusively triable by the Court of Session---Whereas, S.512, Cr.P.C. was a stage when Magistrate had not taken cognizance and that accused was also not before him, but to preserve evidence, the Trial Courts or court competent to send for trial had been empowered to record statements which statements could be taken in evidence at a later stage; when accused would surrender, or was arrested; and witnesses whose statements were recorded, were either dead or had become incapable of giving evidence, etc.---Transfer of statements recorded by Magistrate under S.512, Cr.P.C., would be legal evidence.

Khawaja Muhammad Khan for Petitioner.

Ishtiaq Ibrahim and Akhtar Naveed D.A.-G. for the State.

Date of hearing: 8th June, 2006.

PCRLJ 2006 PESHAWAR HIGH COURT 1562 #

2006 P Cr. L J 1562

[Peshawar]

Before Tariq Parvez Khan, C.J. and Ejaz Afzal Khan, J

Mst. RAHAT BIBI and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.47 of 2005, decided on 30th May, 2006.

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

----S. 9-C---Juvenile Justice System Ordinance (XXII of 2000), Preamble, S.11---Appreciation of evidence---Release of accused on probation---Same set of evidence had been believed by the Court in criminal appeal of co-accused---Evidence of prosecution though comprised police officials, but there was no evidence to the effect that accused were falsely implicated in the case---Trial Court though was conscious of the fact that both accused ladies were Juvenile, but because of huge quantity of Charas and opium, declined to extend them benefit of Juvenile Justice System Ordinance, 2000---Both accused ladies were juvenile because it had been confirmed that at time of framing of charges against them they were below 18 years of age---Maintaining conviction and sentence of accused, High Court directed that they be released on probation for a period of 5 years, accordingly.

(b) Criminal trial---

----General principle of criminal jurisdiction was that all criminal statutes, would be interpreted in favour of offenders; and that benefit of any discretionary powers could not be withheld from them.

Noor Alam Khan for Appellants.

Akhtar Naveed, Dy. A.-G. for the State.

Date of hearing: 18th May, 2006.

PCRLJ 2006 PESHAWAR HIGH COURT 1602 #

2006 P Cr. L J 1602

[Northern Areas Chief Court]

Before Muzaffar Ali, J

STATE through Advocate-General Northern Areas, Gilgit----Appellant

Versus

SEWRAG KHAN and another----Respondents

Criminal Miscellaneous No.16 of 2005, decided on 14th June, 2005.

Criminal Procedure Code (V of 1898)---

---S. 497(5)---Penal Code (XLV of 1860), S.302/34---Application for cancellation of bail---Complainant had sought cancellation of bail granted to the accused on ground that the accused were charged with non-bailable offence of murder in which there were injured eye-witnesses---Validity---Trial against the accused had started, therefore, cancellation of bail at this stage was unwarranted particularly when there was no allegation against the accused that they had misused the concession of bail---Petition was dismissed.

Advocate-General for the State assisted by Malik Haq Nawaz for the Complainant.

Haji Altaf Hussain for Respondents.

Date of hearing: 14th June, 2005.

PCRLJ 2006 PESHAWAR HIGH COURT 1608 #

2006 P Cr. L J 1608

[Northern Areas Chief Court]

Before Muzaffar Ali, J

ASGHAR KHAN and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.15 of 2005, decided on 9th July, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 364 & 34---Bail, grant of---Accused had sought bail on the ground that despite issuance of non-bailable warrants against prosecution witnesses who were closely related to complainant party, they had failed to appear before the Court---Validity---Provisos (3) & (4) to section 497, Cr.P.C. though were omitted, even then accused could not be kept in jail for indefinite period as delay in conclusion of trial was being caused by prosecution witnesses' failure to appear before the Court---Contention that absconsion of accused also caused delay in conclusion of trial was repelled---Accused were admitted to bail.

Muhammad Hussain and Babar Khan for Petitioners.

Advocate-General for the. State.

PCRLJ 2006 QUETTA HIGH COURT BALOCHISTAN 62 #

2006 P Cr. L J 62

[Quetta]

Before Amanullah Khan and Ahmed Khan Lashari, JJ

MUHAMMAD AZAM and others---Appellants

Versus

THE STATE- Respondent

Criminal Jail Appeals (A.T.A.) Nos.41, 42 of 2004, Criminal Appeals (A.T.A.) Nos.131, 133 and 134 of 2004) and Murder Reference (A.T.A.) No.9 of 2004, decided on 5th September, 2005.

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

----S. 7(a)---Evidence---Statement of persons soon after the occurrence---Admissibility---Anything said soon after the occurrence by the people gathered there is admissible as res gestae.

1992 SCMR 1625 ref.

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

----S. 7(a)---Penal Code (XLV of 1860), S.395---Criminal Procedure Code (V of 1898), S.164--Appreciation of evidence---Accused, while sitting in the car after the occurrence, had been identified by the people by his face and a short while thereafter he was arrested and a pistol was also recovered from his possession---Judicial confession made by accused was voluntary, true and confidence-inspiring which was corroborated in material particulars by reliable evidence---Delay in recording the confessional statement was a mere irregularity which could be ignored as the same being without inducement, duress and coercion had satisfied the conscience of the Court---No reason was available to disbelieve the confession of accused to the extent of his own involvement in the commission of offence---No mitigating circumstance even existed for awarding lesser penalty to accused---Convictions and sentences of accused were upheld in circumstances.

1992 SCMR 1625; Ch. Muhammad Yaqoob and others v. The State and others 1992 SCMR 1983; Syed Sharifuddin Pirzada v. Sohbat Khan and 3 others PLD 1972 SC 363; State v. Asfandyar Wali and 2 others 1982 SCMR 321; Bhubani Sahu v. The King PLD 1949 PC 90; Faridullah alias Farid v. The State 1990 PCr.LJ 1937 and Criminal Appeal No. 167 and Criminal Jail Petition No. 14/Q of 2002 ref.

----S. 164---Confession---Retracted confession---Evidentiary value---Court, in order to judge the evidentiary value of the retracted confession has to find out whether the same appears to have been made voluntarily, without any inducement, duress or coercion with the object to state the truth, and if it is satisfied on this aspect then some irregularities in recording the confession would not warrant disregarding of the same.

Ch. Muhammad Yaqoob and others v. The State 1992 SCMR 1983 and Sharifuddin Pirzada v. Sohbat Khan and 3 others PLD 1972 SC 363 ref.

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

---S. 164---Confession---Retracted confession---Evidentiary value against co-accused---Evidentiary value of a retracted confession against a co-accused is considerably less which requires full corroboration---Retracted confession of an accused cannot be used against the co-accused unless other independent evidence establishes his connection with the commission of the crime in which case reliance can be placed on such retracted confession.

Faridullah alias Farid v. The State 1990 PCr.LJ 1937 and Criminal Appeal No.167 and Criminal Jail Petition No.14/Q of 2002 ref.

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

----Art. 43---Consideration of proved confession affecting person making it and others jointly under-trial for same offence---Scope---Confessional statement of an accused can only be used against other accused if some other evidence, direct or circumstantial, connects him with such crime---Confession made by one accused can be taken into consideration against another accused, not as a substantive piece of evidence but as a corroboratory piece of evidence which requires independent corroboration.

State v. Asfandyar Wali and 2 others 1982 SCMR 321; Bhubani Sahu v. The King PLD 1949 PC 90; Faridullah alias Farid v. The State 1990 PCr.LJ 1937 and Criminal Appeal No.167 and Criminal Jail Petition No. 14/Q of 2002 ref.

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

----S. 7(a)---Penal Code (XLV of 1860), S.395---Criminal Procedure Code (V of 1898), S.164---Appreciation of evidence---Confessional statement of co-accused was not a substantive evidence against the accused and no other corroborative evidence was available on record to connect them with the commission of the offence---Trial Court had erred in relying upon the confessional statement of co-accused---Prosecution, thus, had failed to prove its case against the accused ---Although the absconding accused had not filed any appeal, yet his case was at par with that of the accused---Accused were acquitted in circumstances.

1992 SCMR 1625; Ch. Muhammad Yaqoob and others v. The State 1992 SCMR 1983; Syed Sharifuddin Pirzada v. Sohbat Khan and 3 others PLD 1972 SC 363; State v. Asfandyar Wali and 2 others 1982 SCMR 321; Bhubani Sahu v. The King PLD 1949 PC 90; Faridullah alias Farid v. The State 1990 PCr.LJ 1937 and Criminal Appeal No.167 and Criminal Jail Petition No. 14/Q of 2002 ref.

Mehmood Khokhar for Appellants (in Criminal Jail Appeal (A.T.A.) No.41 of 2004).

Muhammad Khalid Dogar Public Prosecutor for the State (in Murder Reference (A.T.A.) No.9 of 2004) and for Respondents (in Criminal Jail Appeals (A.T.A.) Nos.41, 42, and Criminal Appeals (A.T.A.) Nos. 131, 133 and 134 of 2004).

Kamran Murtaza for Respondents (in Murder Reference No.9 of 2004) and for Appellants (in Criminal Appeal (A.T.A.) No.131 of 2004).

H. Shakil Ahmed and Aamir Affridi for the Complainant (in Murder Reference (A.T.A.) No.9 of 2004).

H. Shakil Ahmed and Tahir Hussain Khan for the Complainant (in Criminal Jail Appeals (A.T.A.) Nos.41, 42 and Criminal Appeal (A. T. A.) No. 133 of 2004).

Aamir Afridi for Appellants (in Criminal Jail Appeal (A.T.A.) No.42 of 2004).

Ehsanul Haq, H. Shakil Ahmad and Tahir Hussain Khan for the Complainant (in Criminal Appeal (A. T. A.) No. 131 of 2004).

Naeem Akhtar for Appellants (in Criminal Appeal (A.T.A.) No. 134 of 2004).

H. Shakil Ahmad for the Complainant (in Criminal Appeal (A.T.A.) No. 134 of 2004).

Date of hearing: 3rd August, 2005.

PCRLJ 2006 QUETTA HIGH COURT BALOCHISTAN 87 #

2006 P Cr. L J 87

[Quetta]

Before Akhtar Zaman Malghani, Muhammad Nadir Khan Durrani and Mehta Kailash Nath Kohli, JJ

BAZ MUHAMMAD---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.60 of 2002, decided on 23rd September, 2005.

Per Akhtar Zaman Malghani, J., agreeing with Muhammad Nadir Khan, J.

Penal Code (XLV of 1860)---

---S. 302(b)---Appreciation of evidence---Two prosecution witnesses cited in the calendar of witnesses had been dropped by the prosecution without any reason---Prosecution, no doubt, had the prerogative to produce any number of witnesses in support of its version, but both the said witnesses being the first to have reached the spot, had gained importance and adverse inference had to be drawn against the prosecution for withholding their evidence---Claim of the complainant of having identified the accused as murderer of her husband was belied by other prosecution witnesses---Conduct of the complainant coupled with the registration of the F.I.R. after preliminary investigation had showed that the accused was later on implicated in the case after due deliberation---Failure of the complainant to give description of the other two culprits had further showed that she did not identify the accused persons who had committed the murder of her husband---Accused had remained present on his duty even after the occurrence along with two constables till arrival of the S.H.O. and other police officials, meaning thereby that he was not involved in the commission of the offence---No implicit reliance could be placed on the sole testimony of the complainant in view of the aforesaid diverse factors for basing conviction on a capital charge---Accused was acquitted in circumstances.

1991 SCMR 1134; 1992 SCMR 196; 1984 SCMR 1092; 2000 SCMR 683; 2002 SCMR 1304; 2003 PCr.LJ 1847; 2002 PCr.LJ 1072; 2001 SCMR 177 and PLD 2005 Pesh. 294 ref.

Shabana Azeem for Appellant.

Sardar Ahmed Haleemi for the State.

Date of hearing: 19th August, 2005.

PCRLJ 2006 QUETTA HIGH COURT BALOCHISTAN 589 #

2006 P Cr. L J 589

[Quetta]

Before Amanullah Khan and Ahmed Khan Lashari, JJ

ABDUL MAJEED----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.62 of 2003 and Murder Reference No.12 of 2003, decided on 5th October, 2005.

Penal Code (XLV of 1860)---

----Ss. 302(b), 395 & 34---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Criminal Procedure Code (V of 1898), S.374---Appreciation of evidence---Case of prosecution rested on ocular account furnished by complainant and other prosecution witnesses who, at the time of incident, were accompanying deceased; positive report of Fire Arms Expert in respect of Kalashnikov. recovered from possession of accused and empty collected from place of incident and identification of accused by witnesses at identification parade---Incident was a broad day incident and there was sufficient time for witnesses to identify accused---Identification was competently conducted under supervision of Naib Tehsildar with power of Magistrate Third Class---Witnesses were subjected to lengthy cross-examination, but no contradiction was brought on record damaging evidentiary value of identification parade---Nothing was on record to show that witnesses had any enmity with accused or any ill-will was suggested to them in cross-examination for false implication of accused---Witnesses had correctly identified accused and they had no reason to implicate him falsely---Evidence furnished by witnesses was straightforward, natural and reliable, their testimony remained unshaken in cross-examination and no material contradiction or improvement cropped up damaging the case of prosecution---Lodging of F.I.R. with delay, which otherwise had been explained was neither fatal nor adversely affected case of prosecution--Chance of adulteration of true account or concocting a false story against accused, was ruled out, in circumstances---Interested witness was one who had a motive to involve accused falsely in case, but friendship with deceased was not sufficient to discredit a witness particularly when there was no motive to falsely implicate accused and evidence was worthy of reliance and satisfied the judicial conscience of Court---Conviction and sentence awarded to accused by Trial Court was maintained and Murder Reference in his case was replied in affirmative, while conviction and sentence awarded to absconding co-accused was set aside as no incriminating evidence was available on record to connect him with commission of offence.

Shafique Ahmed and 4 others v. The State 2002 PCr.LJ 518; 1996 PCr.LJ 503; 1995 SCMR 127; PLD 2004 Kar. 319; 1996 PCr:LJ 662; PLD 1996 Kar. 246; Muhammad Bashir Alain v. The State PLD 1958 (Pak.) 1 and Ibrahim Bhak v. The Crown PLD 1955 FC 113 ref.

Naseer Ahmed Bangulzai and Farooq Anwar for Appellant (in Criminal Appeal No.62 of 2003).

Khalid Dogar, Public Prosecutor, A.N.F. for the State (in both cases).

Naseer Ahmed Bangalzai for Respondents (in Murder Reference No.12 of 2003).

Dates of hearing: 8th August and 13th September, 2005.

PCRLJ 2006 QUETTA HIGH COURT BALOCHISTAN 902 #

2006 P Cr. L J 902

[Quetta]

Before Muhammad Nadir Khan Durrani and Mehta Kalash Nath Kohli, JJ

BALOCH KHAN and another----Appellants

Versus

THE STATE----Respondent

Criminal Jail Appeal No.39 of 2005, decided on 26th December, 2005.

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

----Ss. 9(c) & 21---Appreciation of evidence---Prosecution had failed to prove that entire material recovered, was narcotics, but had been able to prove that two of the bundles recovered from the possession of each of accused, contained narcotics, weighing more than two kilograms---Accused persons, in circumstances, were held liable for the same---Raiding party had conducted raid under the supervision of Assistant Director, Anti-Narcotics Force, whose designation was above the Sub-Inspector---No malice was suggested against raiding party and there appeared to be no violation of S.21 of Control of Narcotic Substances Act, 1997---Prosecution had proved on record that house on which raid was conducted belonged to the brother of accused---Both accused were closely related to each other being uncle and nephew---Was not possible for prosecution to foist such a huge quantity of narcotics---Defence led by accused was also not plausible---Recovery of narcotics from the possession of accused had fully been established---Accused being responsible for recovery of two bundles of narcotics each, sentence of R.I. for seven years each was reduced to that of R.I. for five years each and tine of Rs.30,000 each was reduced to that of Rs.25.000 each---With such modification in the quantum of sentence; appeal against judgment of the Trial Court was dismissed.

Muhammad Hashim v. The State PLD 2004 SC 856 ref.

Abdul Karim Khan Yousafzai for Appellants.

Gohar Yaqoob Khan Yousafzai, Special Prosecutor, A.N.F. for the State.

Date of hearing: 14th December, 2005.

PCRLJ 2006 QUETTA HIGH COURT BALOCHISTAN 1302 #

2006 P Cr. L J 1302

[Quetta]

Before Muhammad Nadir Khan Durrani and Fazal-ur-Rehman, JJ

ABDUL HANAN----Appellant

Versus

THE STATE----Respondent

Criminal Jail Appeal No.77 of 2003, decided on 9th August, 2004.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Statements of prosecution witnesses, corresponded to each other with regard to day, time and place of incident relating to receiving fire-arm injuries by deceased and his death---All three witnesses being resident of the house where incident took place had made them natural witnesses---Fact to that extent could neither be doubted nor defence had challenged same---Accused denied his presence in the house at the relevant time and his involvement in the incident, but efforts of accused in that regard failed-,-Statements of prosecution witnesses could not be shaken with regard to identification of accused by them as accused was well known to them being nephew of one prosecution witness and husband of another prosecution witness---All said witnesses had identified the accused in the light of electric bulb--Unimpeached statements of prosecution witnesses, had left no room to doubt presence of accused in the house at the night of incident when he entered the room of deceased with a pistol and after causing him fatal injuries fled away and came after one month of incident for which he failed to advance any explanation---Alleged variations of time of bringing dead body of deceased to hospital could not be said to be of the nature which could brush aside statements of prosecution witnesses which, despite exhaustive cross-examination, could not be shaken with regard to time and manner in which incident took place---Motive for incident as reflected from F.I.R., had been established---Delay in recording statement of one of prosecution witnesses by Investigating Officer could not be considered fatal when there existed explanation in that respect---Un-impeachable statements of prosecution witnesses, coupled with medical evidence and abscondance of accused, had left no room to doubt about his committing of crime under S.302(b), P.P.C. by accused---Findings of the Trial Court which were in consonance with evidence available on record and not suffering from any impropriety or illegality, could not be interfered with---Conviction and sentence awarded to accused by the Trial Court, were upheld.

1998 PCr.LJ 2022 ref.

Ms. Saima Jibreel for Appellant.

Sultan Mehmood, Asstt. A.-G. for the State.

Date of hearing: 21st July, 2004.

PCRLJ 2006 QUETTA HIGH COURT BALOCHISTAN 1620 #

2006 P Cr. L J 1620

[Quetta]

Before Muhammad Nadir Khan Durrani and Mehta Kailash Nath Kohli, JJ

AKHTAR MUHAMMAD----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.145 of 2001, decided on 13th July, 2005.

Penal Code (XLV of 1860)---

----S. 364-A---Appreciation of evidence---Case of prosecution was that on the relevant date, victim girl aged four and half years went missing and subsequently accused was found carrying her while she was unconscious and accused, allegedly, after administering anesthetic drug to her, molested her chastity---Evidence of prosecution and defence plea, after due appraisal of evidence, had portrayed that accused was found carrying victim girl, who was unconscious and was being taken towards the graveyard---From the room of accused, in addition to anesthetic injunction and spray, certain other items such as clothes stained with semen and obscene video cassette, were recovered---Collective outcome of said circumstances had left no room to doubt about involvement of accused in commission of offence under S. 364-A, P.P.C.---Prosecution, in circumstances was found to have proved the charge against accused without any shadow of doubt---Conviction and sentence, awarded to accused by the Trial Court, could not be interfered in appeal before High Court.

Ch. Mumtaz Yousuf for Appellant.

Asstt. A.-G. for the State.

Date of hearing: 6th June, 2005.

PCRLJ 2006 QUETTA HIGH COURT BALOCHISTAN 1671 #

2006 P Cr. L J 1671

[Quetta]

Before Muhammad Nadir Khan Durrani and Mehta Kailash Nath Kohli, JJ

DHANI BAKHSH and another----Appellants

Versus

THE STATE----Respondent

Criminal (A.T.A.) Appeal No. (S)2 of 2006, decided on 14th June, 2006.

(a) Anti-Terrorism Act (XXV of 1997)---

----Ss. 7(b) & 21-H---Explosive Substances Act (VI of 1908), Ss.3, 4 & 5---Criminal Procedure Code (V of 1898), S.164---Qanun-e-Shahadat (10 of 1984), Art. 40---Constitution of Pakistan (1973), Arts.13(b) & 25---Appreciation of evidence---Confessional statements recorded by Police Officer under S.21-H of Anti-Terrorism Act, 1997 were repugnant to Arts. 13(b) & 25 of the Constitution---Features of accused not described in F.I.R.---Delay in conducting identification parade---Effect---Credibility of statements recorded by Police Officer---Scope---Complainant Police Officer, on the basis of Marasla, registered F.I.R. against three unknown accused persons regarding a bomb lying on railway track which went off when police officials removed bomb therefrom causing injuries to Police officials---Accused/appellants were later on arrested as suspects and identified by police constable as accused who had planted bomb on railway track---Accused allegedly recorded their confessional statements under S.164, Cr.P.C. before District Police Officer as to commission of offence---Trial Court convicted and sentenced accused to imprisonment for life---Validity---Identification parade was held thirteen days after arrest of accused and no explanation was offered for delay in conducting identification parade---Such delay in conducting identification parade was fatal to prosecution case---Prosecution witness, who allegedly identified accused persons, did not support prosecution and was declared hostile---Neither in Marasla nor in F.I.R. it was mentioned that there were three accused persons who had planted the bomb---Record did not show that accused persons were known to witness who identified accused or accused were identified on glimpse---Description and features of accused were not provided in Marasla or F.I.R.---Piece of evidence used against accused that they led to discovery of place of occurrence did not amount to discovery of new fact as place of occurrence was already in the knowledge of accused---Discovery of place of occurrence- on alleged pointation of accused was not in line with provisions of Art. 40 of Qanun-e-Shahadat, 1984---Section 21-H of Anti-Terrorism Act, 1997 contemplated that circumstances in which confession of accused was recorded by Police Officer were also to be explained---Police Officer failed to point out special circumstances which compelled him to record statements of accused under S.164, Cr.P.C. himself instead of sending accused to Judicial Magistrate---Section 21-H of Anti-Terrorism Act, 1997 was repugnant to Arts.13(b) & 25 of the Constitution because no person accused of an offence could be compelled to be witness against himself---Admissibility of confessional statements recorded under S.21-H of Anti-Terrorism Act, 1997 was open to criticism---Voluntariness of confessional statements of accused recorded by Police Officer after lapse of 14 days in police custody was doubtful---Statement of accused recorded under S.164, Cr.P.C. by Police Officer was not worth credence---Disclosure memo and identification parade having been discarded, there was no other circumstantial and direct evidence left against accused to involve them in commission of offence---Accused were acquitted of the charge---Appeal was allowed.

State through Advocate-General, Sindh v. Farman Hussain and others PLD 1995 SC 1; State/Government of Sindh through Advocate-General v. Sobharo 1993 SCMR 585; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 and Aftab Ahmed v. The State 2004 MLD 1337 rel.

(b) Anti-Terrorism Act (XXV of 1997)---

----S. 21-H---Confessional statements recorded by Police Officer---Question of credibility and voluntariness of such statements---Scope---If confessional statement, recorded by Police Officer, was voluntarily made by accused then question would arise as to why accused was not produced before judicial Magistrate---Confessional statements recorded by Police Officer though may be above board and transparent but fact would remain to be explained as to what was unusual and extraordinary which compelled Police Officer to record statement himself instead of Judicial Magistrate---Accused when produced by one Police Officer before another Police Officer he could neither feel free nor think that he was in safe hands---For accused all Police Officers, irrespective of their ranks, were chips of same block---Decision about admissibility of confessional statements under S.21-H of Anti-Terrorism Act, 1997 was left to discretion of Court and before relying upon such statements, Court was to satisfy itself about the credibility of such statements---Admissible evidence did not necessarily mean that it was credible as well.?

Hadi Shakeel Ahmed for Appellants.

Abdul Raheem Mengal, Asstt. A.-G. for the State.

Date of hearing: 25th May, 2006.

Shariat Court Azad Kashmir

PCRLJ 2006 SHARIAT COURT AZAD KASHMIR 1191 #

2006 P Cr. L J 1191

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

MUHAMMAD ASIF and others----Appellants

Versus

THE STATE and others----Respondents

Criminal Appeals Nos.40 and 44 of 2005, decided on 7th April, 2006.

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

---S. 154---F.I.R., nature and recording of---Defect in recording F.I.R.---Effect---Mere defect in recording F.I.R. or even recording of F.I.R. after investigation, would not make the whole trial illegal---F.I.R. was not a substantive' piece of evidence and even if an F.I.R. was recorded after commencing of formal investigation, it would not destroy the whole trial and it would not materially affect main case of prosecution.

Ali Asghar Khan v. State 1973 PCr.LJ 722; Sajawal Khan v. The State PLD 1979 SC (AJK) 130; Khalid Hussain and another v. The State and another PLD 1984 Sh.C. (AJK) 1; Mst. Rehmat Bibi v. Muhammad Najib and another 1997 PCr.LJ 331 and Debendra Chandra Sarkar and others AIR 1934 Cal. 458 ref.

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

----Ss. 302(b), 364-A & 34---Appreciation of evidence---Prosecution case rested wholly on circumstantial evidence---Two prosecution witnesses who had given last seen evidence, their testimony could not be shattered despite their lengthy cross-examination---Said two prosecution witnesses, though were closely related to complainant, but their evidence could be relied upon, because mere relationship was no ground for discarding evidence of related witnesses who otherwise seemed to be natural and truthful witnesses---Interested witness was one who., had motive for falsely implicating an accused---Relationship with the deceased would not be sufficient to brush aside the veracity of witness, if his evidence rang true---Recovery of dead body of deceased on pointation of accused, in presence of impartial and reliable prosecution witnesses, had fully supported prosecution story---Recovery of Chappal and watch of deceased, had also supported prosecution case---Prosecution story also stood supported by. medical evidence---Prosecution witnesses, had no ostensible reason to depose falsely against accused---No enmity was proved between prosecution witnesses and accused---No justification existed to brush aside straightforward and confidence-inspiring evidence of the witnesses---All said prosecution witnesses were subjected to lengthy cross-examination, but defence failed to shake their testimony---No reason was available to discard prosecution evidence---Driver of ambulance, who went along with police and brought dead body of deceased in his ambulance; his statement was also a strong link in the chain of circumstantial evidence---Motive of offence stood proved by evidence of a retired Section Officer, who was impartial witness---Prosecution version was more probable, clear and confidence-inspiring, whereas version taken by defence seemed to be improbable, concocted and afterthought---Prosecution was not under obligation to examine all witnesses---No adverse inference could be drawn against prosecution if some witnesses were abandoned by prosecution---No glaring defect or any legal infirmity could be pointed out in the finding of the Court below---All prosecution witnesses were found 'Adil' during purgation---Circumstantial evidence had been found incompatible with innocence of accused and incapable of explanation upon any other reasonable hypothesis than that of their guilt---All circumstances had been established beyond all doubt---Overall and accumulative effect of circumstantial evidence was that it was clear, convincing, trustworthy, confidence-inspiring and sufficient to prove guilt of both accused being beyond any shadow of doubt---Impugned judgment of the Trial Court could not be interfered with.

AIR 1934 Cal. 458; PLD 1963 SC 17; 1969 SCMR 388; PLD 1974 Kar. 397; PLD 1976 Kar. 209; 1994 SCR 275; Sardar Ali v. Muhammad Ibrahim and others Criminal Appeal No.45 of 2004; 1995 PCr.LJ 776; 1969 SCMR 558; PLD 1975 (AJK) 12; PLD 1979 SC (AJK) 130; 1985 PCr.LJ 391; 1996 PCr.LJ 1522; 1996 PCr.LJ 1144; 1997 PCr.LJ 331; 2001 YLR 1924; Abdul Rasheed and 3 others' case 2001 PCr.LJ 524; Abdul Aziz and another's case 2001 YLR 236; Muhammad Anwar v. The State PLD 1997 Lah. 202; Ali Asghar Khan v. The State 1973 PCr.LJ 722 and Muhammad Faisal Shahzad and others' case PLJ 2000 Cr. Case Lah. 123 ref.

----Art. 46---Circumstantial evidence---In case of non-availability of a witness, secondary evidence was admissible under Art.46 of Qanun-e-Shahadat, 1984.

Ch. Ali Muhammad Chacha and Raja Inamullah Khan for Appellants (in Appeal No.40 of 2005) and for .Respondent No.2 (in Criminal Appeal No.44 of 2005).

Muhammad Riaz Alam for the Complainant (in Criminal Appeal No.44 of 2005).

Sardar Muhammad Raziq Khan, Addl. A.-G. for the State (in both cases).

PCRLJ 2006 SHARIAT COURT AZAD KASHMIR 1294 #

2006 P Cr. L J 1294

[Shariat Court (AJ&K)]

Before Muhammad Reaz Akhtar Chaudhry, CJ

ALI ASGHAR----Petitioner

Versus

THE STATE----Respondent

Revision Petition No.9 of 2006, decided on 1st June, 2006.

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

---Arts. 132(2), 133 & 141---Penal Code (XLV of 1860), Ss.302 & 458, West Pakistan Arms Ordinance, (XX of 1965), S.13---Cross-examination---Basic purpose ---Duty of Court---While recording cross-examination, it was fundamental duty of the Trial Court to be vigilant and properly control cross-examination and should ensure that witness had understood the question before answering the same---Court should not be in hurry and should give full attention to the witness and questions put to him---Court was expected to see whether question, put to the witness during the course of cross-examination, was relevant or not---Court should not allow to put lengthy and irrelevant questions to witness---While recording statement of witness in a murder case, it was paramount duty of the Trial Court to be well conversant with the facts of the case, because if the Court would not be conversant with the facts of the case, then it would be impossible for it to decide, whether question was relevant or irrelevant and then witness would be totally at the mercy of counsel for defence---Practice of lengthy cross-examination, was plainly designed not for disclosure of truth, but for manipulation of an error---Use of such method must be discouraged---Basic purpose of cross-examination was to assist the court in bringing truth to light by disclosing and clarifying the matters, which witness, could wish to conceal or confuse from the motive of partisanship---Fundamental purpose of cross-examination, was to sort out the truth by disclosing or clarifying the matters---No mathematical procedure was prescribed for cross-examination and it was not necessary that witness should only reply questions according to the wish of counsel for defence---Cross-examination was a double edged sword and a witness while replying questions, could explain the matter for clarifying questions or dispute---Court was to ensure about the integrity, honour and dignity of witness---Court should also ensure that witness should not be insulted by any counsel while conducting cross-examination and there should be a difference between the witness and accused.

PLD 1967 SC 167 ref.

Ch. Ali Muhammad Chacha for Petitioner.

Raja Inamullah Khan for the Complainant.

Sardar Muhammad Razaq Khan, Addl. A.-G. for the State.

PCRLJ 2006 SHARIAT COURT AZAD KASHMIR 1359 #

2006 P Cr. L J 1359

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

KHALID MAHMOOD and others----Appellants

Versus

THE STATE and others----Respondents

Criminal Appeals Nos.71 and 75 of 2006, decided on 6th March, 2006.

Penal Code (XLV of 1860)---

----S. 302---West Pakistan Arms Ordinance (XX of 1965), S.13---Appreciation of evidence---All prosecution witnesses not only were close relatives of complainant and deceased, but were inimical towards accused---Requirement was that independent respectables of the locality should have been asked to join recovery, but Investigating Officer had failed to comply with mandatory provisions of law---Recovery of weapons of offence, in circumstances was doubtful and was of no help to prosecution---Complainant particularly was not enjoying good relations with accused and as per statement of one of prosecution witnesses, a dispute existed over a piece of land between complainant and father of accused---Statements of complainant and other prosecution witnesses needed a careful scrutiny---Allowing appeal of accused, impugned judgment was set aside and accused was acquitted of the charge and was ordered to be released.

Muhammad Azam Khan for Appellants.

S.M. Razik Khan, Addl. A.-G. for the State.

Ch. Khalid Rashid for the Complainant.

PCRLJ 2006 SHARIAT COURT AZAD KASHMIR 1386 #

2006 P Cr. L J 1386

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

THE STATE----Appellant

Versus

JAVAID AKHTAR----Respondent

Reference No.30 of 2006, decided on 15th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 347---Powers of the Trial Court to send case for trial before District Criminal Court---Trial Court had ample powers to send case for trial before District Criminal Court at any stage of proceedings, provided that the case was one which had to be tried by District Criminal Court on the basis of cogent grounds---Court had to consider the gravity of offence, while imposing punishment on accused for the same---Trial Court should also consider all relevant facts and surrounding circumstances coupled with prosecution evidence and decide as to whether case was triable by District Criminal Court or by itself.

Muhammad Irshad v. The State PLD 1987 Lah. 105 ref Masood Ahmad Shaikh for the Complainant.

Abdul Hameed Khan for the Accused.

Sardar Muhammad Raziq Khan, Addl. A.-G. for the State.

PCRLJ 2006 SHARIAT COURT AZAD KASHMIR 1394 #

2006 P Cr. L J 1394

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

MUHAMMAD YAQOOB and others----Appellants

Versus

THE STATE and others----Respondents

Criminal Appeals Nos.25 and 28 of 2003, decided on 7th March, 2006.

Azad Jammu & Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)---

----Ss. 5 & 15---Penal Code (XLV of 1860), Ss.307, 297, 147, 148 & 149---Appreciation of evidence---Sentence, reduction in---Eye-witnesses were closely related and interested as enmity between parties was also admitted---Statements of said interested witnesses required very careful scrutiny and strong corroboration from some independent source---Site plan and statement of prosecution witness did not support ocular version with regard to place of occurrence---Attribution of three fires to deceased and prosecution witness with alleged 12 bore gun belonging to accused and claiming fire-arm injury to prosecution witness, was highly doubtful---Report of Forensic Science Laboratory with regard to all three empties along with .12 bore double barreled gun sent to it had shown that none of three crime empties were fired from the said gun---Presence of all accused persons at the spot, was doubtful---Whole prosecution story was not correct---Origin of fight between parties and manner of occurrence were shrouded in mystery---Right of self-defence/defence of property at the time of occurrence was available to the accused--Sentence of 25 years R.I. awarded to accused by the Trial Court, being not warranted in circumstances of the case, same was converted into life imprisonment along with benefit of S.382-B, Cr.P.C.---Co-accused was acquitted.

Abdul Majeed Malick for Appellants.

Muhammad Azam Khan for the Complainant.

S.M. Razik Khan, Addl. A.-G. for the State.

PCRLJ 2006 SHARIAT COURT AZAD KASHMIR 1424 #

2006 P Cr. L J 1424

[Shariat Court (AJ&K)]

Before Sardar Muhammad Ashraf Khan, J

MUHAMMAD NADEEM----Petitioner

Versus

THE STATE through Advocate-General and another----Respondents

Criminal Revision No.132 of 2005, decided on 26th May, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 265-K, 439 & 235---Penal Code (XLV of 1860), S.377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Application for acquittal---Revision by petitioner/accused against order of Trial Court whereby application of petitioner filed under S.265-K, Cr.P.C. for his acquittal was disallowed---Trial of accused/petitioner was almost complete and defence had been given chance to adduce evidence---Record had shown that prosecution had produced nine witnesses in support of its case and prima facie, perusal of same had connected accused with the offences enumerated in report under S.173, Cr.P.C.---When all accusations which had constituted a prima facie case, were existing on record at the time of submitting application under S.265-K, Cr.P.C., Trial Court had not acted against law by rejecting said application---Case had been registered under S.377, P.P.C. and S.12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and according to F.I.R. accused had been attributed to have committed offence under S.377, P.P.C.---Accused for the purpose of sodomy, had enticed away the victim---Report submitted under S.173, Cr.P.C. also disclosed offence falling under S.12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and even if evidence to- that effect was not available at that stage, the Court was competent to hear case and dispose it of---Contention that offence under S.12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 had not been proved through evidence and even otherwise after commission of offence under S.377, P.P.C., Sessions Court/Trial Court had no jurisdiction to try the offence, was repelled, in circumstances---Section 235, Cr.P.C. also provided mechanism for trial in more than one offences, if the series of acts were, so connected as to form same transaction---Trial Court, in circumstances, could, along with an offence, was also competent to try offences in question committed in the same transaction---Trial Court, therefore, had rightly rejected application of petitioner filed under S.265-K, Cr.P.C.---Said order did not warrant interference by High Court in exercise of its revisional jurisdiction.

K.D. Khan for Petitioner.

Syed Tayyab Gilani, Asstt. A.-G. for the State.

PCRLJ 2006 SHARIAT COURT AZAD KASHMIR 1573 #

2006 P Cr. L J 1573

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

SAJID RASHID and others----Appellants

Versus

THE STATE and others----Respondents

Criminal Appeals Nos.142 and 5 of 2005, decided on 24th June, 2006.

Penal Code (XLV of 1860)---

----Ss. 324, 337 & 34---West Pakistan Arms Ordinance (XX of 1965), S.13---Appreciation of evidence---Accused sustained injuries during occurrence, but same were suppressed by eye-witnesses---Medico-legal reports pertaining to said injuries were placed on record by prosecution, but Courts below ignored such reports on the ground that same were not tendered in evidence---Document not tendered in evidence by prosecution could not be read and relied upon against accused for the purpose of conviction, but prosecution was not absolved of its consequences, if it created doubt in prosecution case and extending any benefit to accused, could not be discarded from consideration---Number and nature of injuries appearing on person of accused, which were concealed by eye-witnesses, had shown that both parties had inflicted injuries on each other and accumulative effect thereof needed serious consideration---Impugned judgment was set aside and case was remanded to the Trial Court to decide afresh.

Ch. Ali Muhammad for Appellants.

Sardar Muhammad Raziq Khan, Addl. A.-G. for the State.

Bostan Chaudhary for the Complainant.

PCRLJ 2006 SHARIAT COURT AZAD KASHMIR 1581 #

2006 P Cr. L J 1581

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

THE STATE----Appellant

Versus

MUHAMMAD SHERBAT and others----Respondents

Criminal Appeals Nos.64, 69, 119 of 2005, 6 of 2006 and Criminal Reference No.173 of 2005, decided on 24th June, 2006.

Azad Jammu & Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)---

----Ss. 5 & 15---Criminal Procedure Code (V of 1898), S.556---Appreciation of evidence---Member of Tehsil Court of criminal jurisdiction concerned who was cited as eye-witness in the case, appeared before the Trial Court and recorded his statement in support of prosecution version---Later on he was promoted as Additional District Qazi and was appointed as member of the Trial Court and he proceeded with the trial of the same case--Question was whether Additional District Qazi, who was a witness in the case, was competent to try the case---Any act of a Judge which could possibly give rise to an apprehension in the mind of the parties that they would not get impartial trial, was not warranted--Section 556, Cr.P.C. did not allow a Judge to try any case in which he was interested---Aim was to avoid apprehension that a bias attributed to a Judge might have operated against either of the parties and the objective was that justice must not only be done, but must also appear to have been done---Qazi, who, before his promotion, was a prosecution witness, deposed against accused after being appointed member of the Trial Court, and he started proceedings with the case, it was improper for him to try the case as he himself appeared as prosecution witness against the accused---Impugned judgment was set aside and proceedings conducted by the Qazi were quashed and case was remanded with direction to the Trial Court to proceed with the case afresh and decide it in accordance with law.

AIR 1947 Mad. 118; AIR 1957 SC 425 PLD 1951 FC 62 and PLD 1957 Pesh. 128 ref.

Ch. Muhammad Taj for Appellants.

Sardar Muhammad Raziq Khan, Addl. A.-G. for the State.

Muhammad Azam Khan for the Complainant.

PCRLJ 2006 SHARIAT COURT AZAD KASHMIR 1591 #

2006 P Cr. L J 1591

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

MUHAMMAD ISHTIAQ and others----Appellants

Versus

THE STATE and others----Respondents

Criminal Appeals Nos.30 and 28 of 2005, decided on 9th June, 2006.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Important witness who was close relative of complainant was not produced by prosecution to establish that he gave amount in question to the deceased---Prosecution witnesses neither saw anybody firing at deceased nor they identified vehicle/Jeep involved in the case---Jeep could not be said to be the same which was under use of accused---Statement of one of the witnesses had indicated that accused was not in the territory of Azad Kashmir at the time of occurrence---Recovery of money in question from accused was of no consequence as witness who allegedly gave said money to deceased before his death, was not produced by prosecution---Recovery of crime empties and weapon of offence from place of occurrence, was also of no help to prosecution case because according to report of Forensic Science Expert said empties were not fired from weapon of offence---Prosecution story being highly doubtful, was not worth-relying---Appeal against impugned order was accepted and accused was acquitted of the charge and was released from custody.

Sardar Javed Nisar for Appellants.

Sardar Shamshad Hussain Khan for the Complainant.

Raja Mumtaz Hussain Kiani, Addl. A.-G. for the State.

PCRLJ 2006 SHARIAT COURT AZAD KASHMIR 1603 #

2006 P Cr. L J 1603

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

MASOOD AHMAD and 3 others----Petitioners

Versus

THE STATE----Respondent

Criminal Revision No. (sic) of 2006, decided on 22nd June, 2006.

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

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 447, 147, 148 & 149---Bail, grant of---Principles---Application for bail filed under S.497, Cr.P.C., was dismissed by the Trial Court observing that case was proceeding on day to day basis and early disposal of same, instead of deciding bail application, would be in the interest of parties and justice --Validity---Irrespective of the fact that case was proceeding on day to day basis or otherwise, bail application moved under S.497, Cr.P.C. had to be decided on merits---Observation made by the Trial Court ran counter to law and there was no justification to hold bail application as pre-mature.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 447, 147, 148 & 149---Bail, grant of---Further inquiry---Other accused persons were not present at the place of occurrence at relevant time, but they came there later on---Prima facie it appeared that occurrence was not premeditated---Question of commission of offence in furtherance of common intention needed serious consideration, in circumstances---Three out of four accused had sustained injuries during occurrence, but that fact was suppressed by the prosecution witnesses---Medico-legal reports, however, pertaining to said accused persons were placed on record and a counter-report regarding same occurrence was also made by accused upon which a case under Ss.324, 504, 447, 147, 148 & 149, P.P.C. was registered against complainant and others---Individual role of each of accused person in the occurrence was important to decide question of bail---Accused who was alleged for causing fatal injuries on the person of deceased, was not entitled to concession of bail, while case of other accused persons was quite distinguishable---One of said accused persons had not been ascribed an active role, whereas remaining two accused sustained injuries during occurrence, which were not explained by prosecution---Case of said accused falling under subsection (2) of S.497, Cr.P.C. they were admitted to bail, accordingly.

Muhammad Azam Khan for Petitioners.

Abdul Aziz Ratalvi for the Complainant.

S.M. Razik Khan, Addl. A.-G. for the State.

PCRLJ 2006 SHARIAT COURT AZAD KASHMIR 1629 #

2006 P Cr. L J 1629

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

WAHID MEHMOOD and others----Appellants

Versus

THE STATE through A.A.-G. and others----Respondents

Criminal Appeals Nos.72 and 86 of 2005, decided on 19th June, 2006.

Penal Code (XLV of 1860)---

----Ss. 302, 306, 308, 324, 34 & 114---Appreciation of evidence---Prosecution had failed to prove alleged motive, but rest of the story was proved beyond any doubt---F.I.R.; was lodged without delay---Names of accused, deceased and prosecution witnesses were specially mentioned in F.I.R.---Allegation was proved through evidence during trial---Despite lengthy cross-examination, defence had failed to obtain anything in favour of accused and witnesses had given a truthful version of occurrence---Accused was a minor at the time of commission of offence and nothing was on record to indicate that he attained sufficient maturity to realize consequences of his act---Trial Court had rightly observed that accused being a minor could not be convicted under S.302, P.P.C. and that his case fell under S.306, P.P.C.---Accused was convicted under S.308, P.P.C.---Judgment and order passed by District Court of criminal jurisdiction, whereby sentence of 14 years' R.I. along with Diyat was awarded to accused, was maintained to the extent of Diyat, however, undergone sentence was considered to meet the ends of justice---Order was passed accordingly---Accused would be released from custody on payment of 'Diyat' as determined by the Trial Court.

Bostan Chaudhary for Appellant (in Criminal Appeal No.22 of 2005).

Sardar Muhammad Raziq Khan, Addl. A.-G. for the State.

Abdul Hamid for the Complainant.

PCRLJ 2006 SHARIAT COURT AZAD KASHMIR 1659 #

2006 P Cr. L J 1659

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

MUHAMMAD HAYAT and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.89 and 92 of 2002, decided on 10th June, 2006.

Penal Code (XLV of 1860)---

----S. 302---West Pakistan Arms Ordinance (XX of 1965), S.13---Appreciation of evidence---Prosecution witness had made deliberate attempt to suppress the truth and his statement was full of contradictions and he negated the claim of complainant that the report was lodged on his information---Said prosecution witness was closely related to deceased and complainant and his statement required strong corroboration on each and every point---Motive remained unproved as nothing was brought on record to prove same---Contradiction was found between two prosecution witnesses with regard to date of recovery of weapon of offence---Alleged confessional statement of accused was not proved to be voluntary---Presence of prosecution witness at the place of occurrence and identification of accused, was doubtful---Trial Court failed to appreciate that F.I.R. was not a truthful version---Prosecution story being highly doubtful was disbelieved---Appeal against impugned judgment of Trial Court was accepted and accused was acquitted of the charge.

Sardar Shamshad Hussain Khan for Appellants (in Criminal Appeal No.89 of 2002).

Sardar Khan for Appellant (in Criminal Appeal No.92 of 2002).

Raja Mumtaz Hussain Kiani, Addl. A.-G. for the State.

PCRLJ 2006 SHARIAT COURT AZAD KASHMIR 2009 #

2006 P Cr. L J 2009

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

MUHAMMAD ASIF and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.40 and 44 of 2005, decided on 7th April, 2006.

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

----Ss. 302(b) & 364-A---Appreciation of evidence---Evidence of last seen was given by three prosecution witnesses---Testimony of two of said three prosecution witnesses could not be shattered despite lengthy cross-examination---Evidence of third witness, however, could not be taken into consideration as his statement under S.161, Cr.P.C. was recorded after 13 days of occurrence and no plausible explanation was furnished for such delay---Both prosecution witnesses though were closely related to complainant, but mere relationship was no ground for discarding evidence of such witnesses who otherwise seemed to be natural and truthful witnesses---Relationship with deceased would not be sufficient to brush aside the veracity of witness, if the evidence rang true---Dead body of deceased was recovered on pointation of accused in presence of two prosecution witnesses---Both said witnesses were impartial and their evidence was quite reliable and confidence inspiring-Recovery of other articles belonging to deceased, also stood proved---Site-plan which was another piece of circumstantial evidence, had proved place of recovery of dead body and other articles---All prosecution witnesses were subjected to lengthy cross-examination,. but defence had failed to shake their testimony---Motive of offence stood proved by evidence of reliable prosecution witness---Prosecution version was more probable, clear and confidence inspiring, whereas version taken by defence seemed to be improbable, concocted and afterthought---Non-production of some of prosecution witnesses, was not fatal to prosecution case as prosecution was under no obligation to examine all prosecution witnesses---Mere defect in recording F.I.R. or even .recording of F.I.R. after investigation,' would not make the whole trial illegal---Overall and accumulative effect of circumstantial evidence-was": that it was clear, convincing, trustworthy, confidence inspiring and sufficient to prove guilt of both accused persons---All prosecution witnesses were found 'Adil' during purgation and no glaring defect or any legal infirmity could be pointed out in. the findings of the Court. Below---Conviction and sentences recorded against accused by the Trial. Court, were maintained.

PLD 1963 SC 17; 1969 SCMR 388; PLD 1974 Kar. 397; PLD 1976-Kar. 209; 1994 SCR 275; NLR 1995 AC 477; 1969 SCMR 558; PLD 1975 (AJ&K) 12; PLD 1979 SC (AJ&K) 130; 1985 PCr.LJ 391; 1996 SCR 197; 1996 PCr.LJ 1144; 2001 PCr.LJ 524; Ali Asghar Khan v. The State 1973 PCr.LJ 722; Sajawal Khan v. The State PLD 1979 SC (AJ&K) 1301; Khalid Hussain and another v. The State and another PLD 1984 Sh.C. (AJ&K) 1; Mst. Rehmat Bibi v. Muhammad Najib and another 1997 PCr.LJ 331; Debendra Chandra Sarkar and others' case AIR, 1934 Cal. 458; Abdul Rasheed and 3 others' case 2001 SCR 240; Abdul Aziz and another's case PLJ 2001 SC (AJ&K) 243 and Muhammad Faisal Shahzad and other's case PLJ 2000 Cr. Cases Lahore 123 ref.

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

----Art. 46---Secondary evidence---Secondary evidence was admissible in case of non-availability of a witness.

Muhammad Anwar .v. The State PLJ 1997 Cr. Cases Lahore, 391 ref.

Muhammad Riaz Alam for the Complainant.

Ch. Ali Muhammad Chacha and Raja Inamullah Khan for Respondent.

Sardar Muhammad Raziq Khan, Addl. A.-G. for the State.

Date of hearing: 7th April, 2006.

Supreme Court Azad Kashmir

PCRLJ 2006 SUPREME COURT AZAD KASHMIR 1067 #

2006 P Cr. L J 1067

[Supreme Court (AJ&K)]

Present: Kh. Muhammad Saeed, C.J. and Syed Manzoor Hussain Gilani, J

MUHAMMAD MUSHTAQ----Appellant

Versus

MUHAMMAD SIKANDAR and another----Respondents

Criminal Appeal No.43 of 2005, decided on 17th March, 2006.

(On appeal from the judgment of the Shariat Court dated 15-6-2005 in Criminal Revision Petition No.27 of 2005).

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.109 & 458--- Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42(II)---Abetment---Proof---Appeal had been directed against judgment of Shariat Court whereby order of bail passed in favour of respondent was maintained---Plea of appellant was that accused/respondent having abetted the offence; he was equally responsible for offence which was committed by other co-accused---Appellant had also asserted that bail previously having been refused to the accused, there was no justification for the Courts below to release respondent on bail subsequently---Validity---No doubt under law person blamed for abetting an offence was deemed to have committed offence himself though he did not do so himself, but abetment was to be proved strictly by leading cogent evidence---Mere allegation that any offence had been committed which was the result of abetment, was not sufficient to deprive a person from concession of bail---For the purpose of proving abetment, of accused prosecution was bound to prove that through his instigation, conspiracy or intentional aid, offence was committed by other accused---Till that time case of person charged for abetment was one of further inquiry---Courts, in the present case, had found that case of respondent/accused being one of further inquiry, concession of bail had been extended to him---Prosecution having produced so many witnesses, it would not serve any purpose to cancel bail of accused particularly when he had not been blamed for tampering with the evidence of prosecution or for violating terms of bail---Bail order passed in favour of respondent/accused by the Courts below was maintained.

Sardar Muhammad Azam Khan, Advocate for Appellant.

Mirza Abdul Aziz Ratalvi and Zafar Iqbal Rolvi, Advocates for Respondent No. I.

Sardar Abdul Razik Khan, Additional Advocate-General for the State.

Date of hearing: 26th January, 2006.

PCRLJ 2006 SUPREME COURT AZAD KASHMIR 1170 #

2006 P Cr. L J 1170

[Supreme Court (AJ&K)]

Present: Khawaja Muhammad Saeed, C.J. and Khawaja Shahad Ahmed, J

MUHAMMAD JAVED and another----Appellants

Versus

THE STATE and another----Respondents

Criminal Appeal No.24 of 2005, decided on 17th November, 2005.

(On Appeal from the judgment of the Shariat Court dated 9-3-2005 in Criminal Revision No.15 of 2005).

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

----Arts. 132 & 133---Penal Code (XLV of 1860), Ss.302 & 34---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Cross-examination of witness---Cross-examination was a legal, legitimate and equitable right under law and that right could not be denied to any party to the litigation in an arbitrary and unguided manner-Appellants, no doubt had engaged four counsel from local bar, but none out of them appeared on the date when case was called for hearing and examination in-chief of Doctor concerned was recorded by the Trial Court---Conduct of Advocates so engaged was very objectionable---Appellants, in circumstances, were justified to request for adjournment so that they could engage other counsel---Appellants could not be blamed as they had engaged four counsel from local bar and none out of them appeared on their behalf to defend them---Adjournment claimed by appellants for the purpose of cross-examination on their behalf, was not unfair---Expeditious disposal of trials was no doubt a good thing, but it should not be at the cost of fair and just trial---Some other witnesses were yet to appear for the prosecution, order passed by the Trial Court and maintained by Shariat Court, was illegal and unwarranted by law and rule of justice---Accepting appeal, orders passed by Trial Court and Shariat Court, were set aside by the Supreme Court.

Yahya Bakhtiar v. The State PLD 1983 SC 291 ref.

Abdul Majeed Mallick, Advocate for Appellants.

Sardar Abdul Razik Khan, Additional Advocate-General for the State.

Date of hearing: 17th. November, 2005.

PCRLJ 2006 SUPREME COURT AZAD KASHMIR 1241 #

2006 P Cr. L J 1241

[Supreme Court (AJ&K)]

Present: Khawaja Shahad Ahmed, J

Mst. NUSRAT BEGUM----Petitioner

Versus

SHABBIR AHMED and 4 others----Respondents

Criminal P.L.A. No.5 of 2005, decided on 21st November, 2005.

(On Appeal from the judgment of the High Court, dated 7-6-2005 in Writ Petition No.80 of 2004).

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----Ss. 42(12) & 44---Penal Code (XLV of 1860), Ss.302 & 34---Criminal Procedure Code (V of 1898), S.169---Writ petition, competency of--- Benefit of S.169, Cr.P.C.---Investigating Agency had extended benefit of S.169, Cr.P.C. to respondents who were principal accused---During pendency of case, legal heirs of deceased had partly compromised the case declaring that they had no objection if two co-accused were acquitted---Trial Court acquitted accused persons including the respondents, who were principal accused on ground that they had already been extended benefit under S.169, Cr.P.C.---No appeal or revision had been filed by petitioner/complainant against said acquittal order of the Trial Court. despite the fact that remedies were available to petitioner/complainant, but had filed writ petition before the High Court, which was dismissed---Respondents, who were principal accused had been extended benefit of S. 169, Cr.P.C. which was clearly against law---Investigating Agency could not file challan. if ease against said principal accused was not proved during investigation---Legal heirs of deceased had not compromised with the two principal accused, but had compromised with two co-accused---Petitioner, instead of invoking jurisdiction of competent forum against acquittal order, had filed writ petition before the High Court, which was not competent in view of availability of other alternate remedies---High Court could not exercise jurisdiction under S.44 of Azad Jammu and Kashmir Interim Constitution Act, 1974---Writ petition was rightly dismissed by High Court.

Muhammad Akram Mughal, Advocate for Petitioner.

M. Yunus Tahir, Advocate for Respondents.

Date of hearing: 21st November, 2005.

PCRLJ 2006 SUPREME COURT AZAD KASHMIR 1253 #

2006 P Cr. L J 1253

[Supreme Court (AJ&K)]

Present: Khawaja Muhammad Saeed, C. J. and Syed Manzoor Hussain Gilani, J

MUHAMMAD BASHARAT----Appellant

Versus

KHADIM HUSSAIN and 2 others----Respondents

Criminal Appeal No.18 of 2005, decided on 26th November, 2005.

(On appeal from the order of Shariat Court, dated 29-1-2005 in Criminal Miscellaneous No.10 of 2004).

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

--- S. 42(11)---Penal Code (XLV of 1860), Ss.302 & 34---Criminal Procedure Code (V of 1898), 5.169---Criminal appeal---Quashing of private complaint---Order passed by Shariat Court, whereby private complaint filed by appellant, was quashed, had been called in question in appeal before Supreme Court---Initially on filing complaint by mother of deceased alleging that her son, died due to physical torture by police including respondents/ accused, inquiry was conducted and respondents were released by Investigating Officer under S.169, Cr.P.C., while three others were challaned under Ss.316 & 34, P.P.C.---Report of Police Officer/Investigating Officer discharging respondents under 5.169, Cr.P.C., was concurred by the Trial Court---Appellant, thereafter, filed private complaint under Ss.302 & 34, P.P.C. against discharged respondents before the Trial Court after about one year of order of the Trial Court---Trial Court issued process against respondents, which process was challenged before Shariat Court which culminated into the impugned order---Validity---Appellant did not, challenge the order confirming discharge of accused/respondents earlier passed by the Trial Court, but instead filed private complaint after, about one year---Belated private complaint was not favoured by the Supreme Court, more so, when the order by police under S.169, Cr.P.C. was confirmed by same Court, which had tried other accused who were part of the case in which respondents were discharged---In. absence of any fault in the order passed by Shariat Court, appeal against said order, was dismissed.

PLD 1978 Kar. 348; 1985 PCr.LJ 349 and 1983 PCr.LJ 2235 ref.

Liaquat Ali Khan, Advocate for Appellant.

Zaffar Hussain Mirza, Advocate for Respondents Nos.1 to 3.

Sardar Abdul Razzak Khan, Additional Advocate-General for the State.

Date of hearing: 15th November, 2005.

PCRLJ 2006 SUPREME COURT AZAD KASHMIR 1441 #

2006 P Cr. L J 1441

[Supreme Court (AJ&K)]

Present: Khawaja Muhammad Saeed, C.J. and Syed Manzoor Hussain Gilani, J

ABDUL GHAFOOR----Appellant

Versus

THE STATE and another----Respondents

Criminal Appeal No.49 of 2004, heard on 10th May, 2006.

(On appeal from the judgment of the Shariat Court, dated 29-10-2004 in Criminal Appeal No.18 of 2004).

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Prosecution case was unequivocally supported by eye-witnesses---Contention of accused that prosecution witnesses being inter se related to deceased, their evidence could not be relied upon, was devoid of force as relationship of prosecution witnesses with deceased or complainant was no criteria for discarding their evidence---No enmity was alleged or attributed against eye-witnesses, nor was any reason put forward as to why they should falsely implicate accused---Mere relationship, was no ground for discarding evidence of eye-witnesses, if it was proved that they were natural witnesses and their statements appeared convincing and truthful---Contention of accused made in a very low profile tone that eye-witnesses, who had illicit relations with deceased girl, had in fact killed deceased and had falsely implicated accused, was ill-founded, unnatural against record and an afterthought device---No such suggestion was positively given to witnesses in cross-examination, nor had accused stated it in his statements under Ss.242 & 342, Cr.P.C.---Said contention which was not spelt out from record, did not merit consideration at all---Club with which deceased was beaten by accused, was also recovered on pointation of accused and same was secured vide recovery memo.---Said recovery was testified by police officials---As no enmity or ulterior motive was alleged against police, testimony of said police officials, could not be discarded---Alleged disparity between medical report and ' report of Police Officer, was untenable as no material contradiction was found in the statement of witnesses when Investigating Officer had testified documents and post-mortem report was proved by doctor---Delay in lodging F.I.R. had been reasonably explained and said explanation was plausible and appeared compatible with human behaviour---Both Trial Court and Shariat Court had rightly convicted and sentenced accused as case against accused had fully been proved beyond any shadow of doubt---Concurrent findings of fact of competent Courts below could not be interfered with in absence of any discrepancy, contradiction, misreading or non-reading of evidence.

Khalid and another v. The State 1983 PCr.LJ 761; Muhammad Anwar v. The State PLD 1997 Lah. 202; Abrar Hussain Shah v. The State 1992 SCR 294; Muhammad Khalil v. The State 1992 SCR 249; Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others 2001 PCr.LJ 524; Muhammad Asif v. The State 2004 PCr.LJ 890 and Muhammad Anwar v. The State PLD 1997 Lah. 202 ref.

Ch. Muhammad Ilyas, Advocate for Appellant.

Sardar Abdul Razzik Khan, Additional Advocate-General, for the State.

Liaquat Ali Khan, Advocate for the Complainant.

Date of hearing: 10th May, 2006.

PCRLJ 2006 SUPREME COURT AZAD KASHMIR 1525 #

2006 P Cr. L J 1525

[Supreme Court (AJ&K)]

Present: Kh. Muhammad Saeed, C.J. and Syed Manzoor Hussain Gilani, J

SHERAZ MAHMOOD ----Appellant

Versus

THE STATE and another----Respondents

Criminal Appeal No.8 of 2005, decided on 19th May, 2006.

(On appeal from the judgment of the Shariat Court, dated 11-1-2005 in Criminal Appeal No.13 of 2004).

Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood) Act, 1985---

----Ss. 10(3) & 2(a)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Appreciation of evidence---Father of minor daughter could not falsely blame the accused for the offence of rape with his minor daughter as that would jeopardize her future, especially when no enmity between accused and complainant/father of victim minor girl, was established on record and no suggestion to that effect had been made---False case could not be said to have been concocted against accused in circumstances---Age of accused at the time of commission of offence was disclosed by him and accepted bythe Court was 16 years---In the case of a male person, he would be deemed to be adult if he had attained the age of 18 years or had attained puberty according to S.2(a) of Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood) Act, 1985---Accused, as per medical report, was capable of committing intercourse, but Doctor had not mentioned other corroborative factors in his report---"Changes which occur in a boy at puberty, were; development of genital organs; ability to secrete semen; growth of hair on the pules, axillae and Chin; and increase in size of larynx leading to the deepening of the pitch of the voice---No such systems had been mentioned in the present case by the Doctor in his report---When anything. positive was missing from the report, then presumption would be in favour of accused, in view of principle of law that when two explanations of a particular situation could be drawn, then one favourable to accused was to be preferred---Said symptoms having not been mentioned by the Doctor, presumption would be that those were not in existence and from that evidence, it followed that accused was not an adult at the time of commission of offence and his case was covered by S.7 of Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood) Ordinance, 1985---Appeal of accused was dismissed on merits, but his case being covered by S.7 of Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood) Ordinance, 1985, his sentence was reduced to 5 years' R.I. along with punishment of whipping numbering 15 stripes and fine.

Abdul Majeed Mallick, Advocate for Appellant.

Sardar Abdul Razik Khan, Additional Advocate-General for the State.

Muhammad Azam Khan, Advocate for Respondent No.2.

Date of hearing; 6th April, 2006.

PCRLJ 2006 SUPREME COURT AZAD KASHMIR 1893 #

2006 P Cr. L J 1893

[Supreme Court (AJ&K)]

Present: Khawaja Muhammad Saeed, C.J. and Syed Manzoor Hussain Gilani, J

AJAIB SIKANDAR----Appellant, Versus

MUHAMMAD JAVAID alias JAIDEE and another----Respondents

Criminal Appeal No.50 of 2004, decided on 21st July, 2006.

(On appeal from the judgment of the Shariat Court dated 12-11-2004 in Criminal Appeal No.8 of 2003).

Penal Code (XLV of 1860) ---

----S. 302-Azad Jammu and Kashmir Offences Against Property (Enforcement of Hudood) Ordinance (XXXI of 1980), S.14---West Pakistan Arms Ordinance (XX of 1965), S.13---Criminal Procedure Code (V of 1898), S.417--Appeal against acquittal---Reappraisal of evidence---Explanation was not obtained from accused in respect of certain incriminating material deposed by prosecution witnesses against him---In absence of direct evidence, circumstantial evidence collected by prosecution should be examined carefully because evidence of that kind could be fabricated---If last seen evidence was considered along with other parts of evidence, then it was not safe to rely upon such evidence as was rightly observed by the Shariat Court---Weapon of offence "Chhuri" a wrist watch of deceased and leather cover of Chhuri, were recovered from a village, but no person from said village was associated in the recovery process---Shariat Court had rightly given benefit to accused of the fact that alleged recovery, was not disclosed in the F.I.R. nor in any other statement by the complainant party that deceased was also having wrist watch with him---Prosecution witnesses were initially involved in murder of deceased, but later on they were made witnesses against accused---Incharge Police Station had personal grudge against accused; it could not, in circumstances, be ignored that Incharge Police Station involved the accused on basis of fabricated evidence---Amount of Rs.8,000 allegedly recovered from accused, which according to prosecution version, was taken out of pocket of deceased by accused and were paid to prosecution witness, was not proved as that fact had been denied by said prosecution witness---Prosecution evidence was not enough to sustain conviction of murder charge, which was rightly discarded by Shariat Court---If separate pieces of evidence were taken together, same did not lead to an inference of guilt against, accused---Shariat Court in circumstances, had rightly acquitted the accused.

Mehtab Khan v. The State PLD 1979 SC (AJK) 23; Niaz Muhammad v. The State PLD SC (AJK) 211 and Muhammad Aslam v. State through Advocate-General and others 2991 PCr.LJ 770 ref.

Ch. Lal Hussain, Advocate for Appellant.

Muhammad Azam Khan, Advocate for Respondent No.1.

Sardar Abdul Razik Khan, Additional Advocate-General for the State.

Date of hearing: 16th June, 2006.