PCRLJ 2007 Judgments - Pakistan Legal Archive

Courts in this Volume

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

Muhammad Shaair Janjua for the State.

Date of hearing: 26th September, 2006.

PCRLJ 2007 FEDERAL SHARIAT COURT 126 #

2007 P Cr. L J 126

[Federal Shariat Court]

Before Haziqul Khairi, CJ

MUHAMMAD HANIF----Appellant

Versus

THE STATE----Respondent

Jail Criminal Appeal No.124/I of 2006, heard on 2nd October, 2006.

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

----S. 10(3)---Appreciation of evidence---Massive loopholes and contradictions were found in the deposition of two prosecution witnesses, who were husband and wife---Other prosecution witness was cousin of the said prosecution witnesses and was an interested witness---Whether accused entered the house when everybody was sleeping or talking and whether there was rape of one of the prosecution witness only, or on another as well would be anybody's guess on the basis of their unreliable evidence---Neither medical report nor chemical report supported the case of prosecution---Conviction and sentence of accused, were set aside and he was released, in circumstances.

Fazal-ur-Rehman for Appellant.

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

Date of hearing: 2nd October, 2006.

PCRLJ 2007 FEDERAL SHARIAT COURT 212 #

2007 P Cr. L J 212

[Federal Shariat Court]

Before Haziqul Khairi, CJ

WAQAS ALI alias WAQAS AHMAD----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.287/L of 2005, decided on 15th November, 2006.

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

----S. 10(3)---Appreciation of evidence---Accused had specifically raised two pleas firstly, his false involvement by his cousin/complainant with whom accused had business dispute, secondly, plea of alibi---Said two pleas were found true by Investigating Officer---Enmity between accused and complainant had been proved---As per statement recorded in F.I.R. by complainant, there were two eye-witnesses to Zina, but no one was produced by the prosecution---Defence plea was to be considered in juxtaposition with prosecution case which had to be proved beyond any shadow of doubt, however, in case defence was successful to create doubt in the credibility of prosecution case, accused must be acquitted---Assessment of evidence on record by the Trial Court, was perverse, fanciful and whimsical---Gross misreading of evidence was also there---Impugned judgment of the Trial Court was set aside and accused was ordered to be released.

Aminullah v. The State PLD 1982 SC 429 ref.

Gohar Razzaq Awan for Appellant.

Ch. Muhammad Ahad for the State.

Date of hearing: 21st September, 2006.

PCRLJ 2007 FEDERAL SHARIAT COURT 219 #

2007 P Cr. L J 219

[Federal Shariat Court]

Before Haziqul Khairi, CJ

MUHAMMAD AKRAM and another---.Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.19/Q of 2004 decided on 20th November, 2006.

Penal Code (XLV of 1860)---

----S. 392---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss.17(2) & 20---Appreciation of evidence---Sentence, reduction in---Accused raised plea of alibi stating that he was admitted in Civil Hospital, but said plea was rebutted by his own documentary evidence, namely medical certificate which was in respect of out-door patients and was undated---Nowhere said certificate said that at any point of time, accused was admitted in the hospital for his treatment---Said plea of alibi raised by accused being untenable, was rejected---Overwhelming proof of commission of offence by accused was available, except very minor and negligible contradictions---Evidence adduced by prosecution witnesses remained firm and unshaken and impugned judgment was based on sound appreciation of fact---Accused who were young boys were bread winner of their families, their case for reduction of sentence, could be considered on compassionate grounds---Conviction of accused was maintained, but sentence of ten years' R.I. awarded to accused was reduced to five years' R.I., accordingly.

Khushnood Ahmed for Appellants.

Aminuddin Barzai, Addl. A.-G. for the State.

Date of hearing: 20th November, 2006.

PCRLJ 2007 FEDERAL SHARIAT COURT 227 #

2007 P Cr. L J 227

[Federal Shariat Court]

Before Haziqul Khairi, CJ

Mst. SIRAJA and another----Appellants

Versus

THE STATE----Respondent

Jail Criminal Appeal No.237/I of 2005 (linked with) Criminal Appeal No.32/P of 2005, decided on 4th December, 2006.

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

----S. 10(2)---Appreciation of evidence---Present case was one of the most tragic cases where children had accused their own mother of adultery and thrown her into gallows for conviction of her misdeeds---Record showed that accused was woman with seven children and was of 40 years of age, whereas her co-accused was young man of 20 years---Husband of accused was employed abroad and she was living in a joint family system in Pakistan---Prosecution had been able to successfully establish that accused was on visiting terms with co-accused-None of the prosecution witnesses anywhere identified or recognized accused as the woman who used to come along with co-accused---Woman in Burqa could be any other woman not necessarily accused---Prosecution had failed to establish Zina between accused persons---One of the prosecution witnesses had admitted that prosecution had no evidence at all that both accused had lived together at any place---No doubt allegation of son and daughter of accused could be true, but much more was required for conviction of accused persons---Deposition of daughter of accused that she had seen Zina being committed by accused, but it related to an event before the machinery of law was geared up into action on the basis of F.I.R., which could not form basis of their conviction---Chemical report showed that semen of human organ was detected on the swabs taken from accused, but accused was arrested four clays after arrest of co-accused and she was not arrested from the house of co-accused---Chemical report, in circumstances had become doubtful---Impugned judgment of the Trial Court whereby accused were convicted and sentenced, was set aside and accused were released, in circumstances.

Aziz-ur-Rehman Khan and Khawaja Muhammad Khan Gara for Appellants.

Nazar Muhammad Mayar, Dy. A.-G., N.-W.F.P. for the State.

Date of hearing: 10th November, 2006.

PCRLJ 2007 FEDERAL SHARIAT COURT 238 #

2007 P Cr. L J 238

[Federal Shariat Court]

Before Haziqul Khairi, CJ

AMJAD FAROOQ and another----Petitioners

Versus

THE STATE----Respondent

Criminal Revision No.37/I of 2006, decided on 27th November, 2006.

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

----Ss. 156-B & 265-K---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Investigation against a woman 'accused of offence of Zina---Petitioners who allegedly were found committing Zina, were apprehended on the spot, but no search warrant was obtained by S.H.O. from Illaqa Magistrate to conduct the raid---Provisions of S.156-B, Cr.P.C., were mandatory in nature because whenever there was accusation against a woman for Zina, investigation had to be carried out by a police officer not below the rank of Superintendent of Police---Such was a condition precedent arising out of an accusation of Zina against a woman (not Zina-bil-Jabr) and under no circumstances could be overlooked---Only natural persons being involved, investigation whatsoever, if carried out by a police officer. below the rank of Superintendent of Police would not be a nullity in law---Section 156-B, Cr.P.C. was a deviation from and an exception to S.4 thereof where a Magistrate was vested with power to investigate himself or he could authorize a police officer to investigate a crime--Such special provision would override general provisions of S.4 of the Cr.P.C.---Since petitioners were arrested in clear violation of mandatory direction under S.156-B, Cr.P.C., without obtaining permission of the Court, arrest of petitioners was ab initio illegal---Trial Court having failed to apply its mind while dismissing petitioners' application under S.265-K, Cr.P.C., impugned order was set aside.

Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95 rel.

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

----S. 11---Word "person", occurring in S.11, P.P.C.---Meaning and scope---Word "person" would include any company or association or body or person, whether incorporated or not---Word 'person', in circumstances would include not only artificial persons or some other legal entity, but also natural persons i.e. man or woman, male or female.

----"Person"---Meaning and scope---Word "person" would include any company or association or body or person, whether incorporated or not---Word 'person', in circumstances would include not only artificial persons or some other legal entity, but also natural persons i.e. man or woman, male or female.

Mushtaq Ahmad Mohal for Petitioners.

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

Date of hearing: 27th November, 2006.

PCRLJ 2007 FEDERAL SHARIAT COURT 246 #

2007 P Cr. L J 1542

[Supreme Court (AJ&K)]

Present: Muhammad Reaz Akhtar Chaudhry, C.J. and Khawaja Shahad Ahmad, J

MUHAMMAD MUSHTAQ and another----Appellants

Versus

THE STATE through Advocate-General AJ&K and another---Respondents

Criminal Appeal No.34 of 2006, decided on 14th May, 2007.

(On appeal from the judgment- of the Shariat Court dated 25-5-2006, in Criminal Revision No.71 of 2005).

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324/337-A/458/34---Repeated bail applications---Permissibility---No bar can be created for an accused to file repeated applications for release on bail, nor can an embargo be placed on the powers of the Court to consider the application for bail at any time till the case remains before the Trial Court---Accused can file-fresh bail application as soon as a fresh material is brought on the record of the Court, irrespective of the fact that the bail has been declined by the Trial Court or Appellate Court in the first round of litigation in respect of the subject of controversy.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324/337-A/458/34---Bail, refusal of---Statements of prosecution witnesses recorded twice or thrice, prime facie appeared to be different from each other giving impression of improvements but at the same time complainant and eye-witnesses right. from the beginning had remained consistent on the point that the accused had murdered the deceased---Complainant and eye-witnesses, no doubt, were related to the deceased and some record relating to the stay of accused in a hotel on the fateful day was also available on the file, but all these grounds could not be considered at bail stage without probing deep into the prosecution and defence version, which was not allowed at bail stage---Similarly the proposed finding that the occurrence was unseen and the prosecution story was false, could only be recorded after holding that the eye-witnesses were untrustworthy, which was not possible to hold while deciding a bail matter---Bail was declined to accused in circumstances.

Muhammad Arshad and another v. Muhammad Mushtaq and 5 others 2001 YLR 3178 and Muhammad Arshad v. Muhammad Mushtaq and 5 others 2004 MLD 1797 ref.

----S. 497---Bail---Assessment of evidence---Only tentative assessment of the prosecution story or bird's eye view is allowed at bail stage considering the contents of the F.I.R., statements of eye-witnesses under S.161, Cr.P.C. and the defence version.?

Mirza Muhammad Nisar for Appellants.

Malik Muhammad Zaraat for the Complainant.

Additional Advocate-General for the State.

Date of hearing: 6th March, 2007.

PCRLJ 2007 FEDERAL SHARIAT COURT 470 #

2007 P Cr. L J 470

[Federal Shariat Court]

Before Haziqul Khairi, CJ

KHAVIND BUX and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.37/K and 43/K of 2006, decided on- 12th December, 2006.

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

----Ss. 10(2) & 13---Appreciation of evidence---Benefit of doubt---Evidence on record had proved that female accused was a helpless woman thrown at the mercy of a gang of criminals and it could not be ruled out that compelled by circumstances, she became a tool in the hands of her near relations and strangers while apprehending her life in danger---Female accused could not be said in circumstances to have wilfully committed sexual intercourse with anyone within the meaning of S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Lady being entitled to benefit of doubt, her appeal against conviction and sentence awarded to her by the Trial Court, was accepted as in a criminal case, much more was required to convict an accused---Prosecution had failed to establish that male accused had sold female accused as envisaged under S.13 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and he had received amount of consideration---Prosecution having failed to prove that male accused had sold away female accused for the purpose of illicit intercourse or for any unlawful and immoral purpose, his appeal against his conviction and sentence, was also accepted and both accused were directed to be released.

Inamullah Khan and Abdul Waheed Kanjoo for Appellants.

Agha Zafar, Asstt. A.-G. Sindh for the State.

Date of hearing: 2nd November, 2006.

PCRLJ 2007 FEDERAL SHARIAT COURT 488 #

2007 P Cr. L J 488

[Federal Shariat Court]

Before Haziqul Khairi, CJ

AHMAD KHAN and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.55/K linked with Jail Criminal Appeal No.51/K of 2006, decided on 3rd November, 2006.

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

----S. 16---Appreciation of evidence---F.I.R. was lodged after three months of the occurrence and that too after recovery of alleged abductee---Confession of alleged abductee was recorded after 8/9 months of her recovery and Magistrate who recorded said confession, did not remember, if alleged abductee made her confession under compulsion or not---Finding of Investigating Officer was to the effect that alleged abductee at her own sweet-will had gone with accused and husband of alleged abductee had also stated in his cross-examination that he did not know, if she had illicit relations with any of the accused persons---Medical report had also disclosed that no marks of violence was seen on body of alleged abductee nor any blood or semen stain was found anywhere---No recovery of guns or Lathis was made from the possession of any of accused persons---Prosecution, in order to succeed under S.16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, had to establish, firstly of taking or enticing away any woman and secondly the intention that she would have illicit intercourse with any person; unless both the two conditions co-existed, conviction could not be passed against accused under S.16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Trial Court had acquitted accused persons under Ss.10(2) & 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Prosecution had failed to establish that accused had enticed away alleged abductee; she was seen going with accused persons with her minor child at a public place when she was arrested by the police on the pointation of complainant---If the intention of accused persons was to abduct her, they would not have taken her along with her child---Prosecution had failed to establish that intention of accused was that she should have illicit intercourse with any person---Prosecution, in circumstances having failed to prove its case against accused, impugned judgment of the Trial Court, passed against them, was set aside, with the direction to jail authorities to release accused persons.

Ms. Nasreen Zafar and Mehmood Hassan for Appellants.

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

Date of hearing: 3rd November, 2006.

PCRLJ 2007 FEDERAL SHARIAT COURT 497 #

2007 P Cr. L J 497

[Federal Shariat Court]

Before Haziqul Khairi, CJ

ADEEL FAIZ and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.64/Q and 70/Q of 2004, decided on 24th November, 2006.

Penal Code (XLV of 1860)---

----S. 392---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss.17(3) & 24---Juvenile Justice System Ordinance (XXII of 2000), Ss.2(b), 12 & 13---Appreciation of' evidence---Awarding rigorous imprisonment to a child---Accused had not been named in the F.I.R. and no identification parade had taken place---No recovery of any Kalashnikov or other arms, identity cards or cash, was made from accused persons---No statement of either of accused persons was recorded under S.161, Cr.P.C., though it was stated that when a Jeep crossed the stolen vehicle, one of accused jumped from the vehicle in question and ran away and was injured by fire shot---No evidence of the persons driving the Jeep or sitting therein had been produced nor any evidence was available as to who fired at accused---One of the prosecution witnesses had stated that no signature of any witness of recovery was obtained and he also did not remember the time of arrest of accused and how long he was being questioned---Other prosecution witness who was police officer did not remember as to how long accused had remained in police custody---Cumulative effect of such loopholes, discrepancies and lapses in evidence and procedure necessarily led to benefit of doubt in favour of accused paving way to their acquittal and acceptance of their appeals---Even otherwise accused person being child within the meaning of S.2(b) of Juvenile Justice System Ordinance, 2000, who had not attained the age of 18 years, could not he awarded rigorous imprisonment in flagrant violation of S.12 of Juvenile Justice System Ordinance, 2000---Accepting appeals filed by accused, impugned judgments were set aside with direction to release accused.

Shabbir Rajput and Tahir Hussain Khan for Appellants.

Aminuddin Barzai, Addl. A.-G. Balochistan for the State.

Date of hearing: 24th November, 2006.

PCRLJ 2007 FEDERAL SHARIAT COURT 517 #

2007 P Cr. L J 517

[Federal Shariat Court]

Before Haziqul Khairi, C.J. and Dr. Fida Muhammad Khan, J

AMANULLAH and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.86/I of 2006, decided on 9th January, 2007.

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

----S. 10(4)---Penal Code (XLV of 1860), S.302(b)---Appreciation of evidence---Initial report was promptly lodged---Both accused had made extra-judicial confession before prosecution witness---Blood-stained shirt of one of accused persons was recovered on the pointation of said accused and weapon of offence/chhuri was also recovered on their pointation---Occurrence though was un-witnessed, but chain of circumstantial evidence was so strong that it had completely excluded hypothesis of innocence of accused and led only to their guilt without any room of doubt---Both prosecution witnesses were consistent in this respect and despite cross-examination nothing could be adduced that could favour defence in any way---Prosecution witness before whom confessions were made, was reliable---Said witness was not shaken on any point in his cross-examination and he had no grudge or motive to falsely depose against accused---Extra-judicial confession found corroboration from the recovery of two blood-stained chhuris---Even a retracted confession whether judicial or extra-judicial, in law, could validly form the sole basis of conviction of its maker, in cases of Tazir, if Court was satisfied that it was actually made and believed that same was true, without torture, coercion or inducement---Post-mortem report revealed that deceased was raped ante-mortem and her death was due to cut of throat---None of prosecution witnesses, including the police officials who effected incriminating recoveries on their pointation, was alleged to have any grudge, ill-will or animosity against accused to falsely implicate them in heinous offences---Deposition of said witnesses rang true and inspired confidence---Despite lengthy cross-examination, they had remained firm and appeared credible---Whereas were natural witnesses who were residing very close to place of occurrence, their relationship inter se, alone was neither sufficient to discredit their testimony, nor reasonable enough to term them as interested witnesses---Case of prosecution against accused, in circumstances was proved to the hilt---Sentence awarded to accused by the Trial Court was appropriate and commensurate with the gravity of offences committed by them---Normal sentence which was to be awarded to accused, was death, but the Trial Court had awarded them punishment of life imprisonment and in absence of any mitigating circumstance said sentence could not be reduced---Conviction and sentence awarded to accused by the Trial Court, were maintained, in circumstances.

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

----S. 164---Penal Code (XLV of 1860), S.302(b)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Retracted confession---When can form the sole basis of conviction---Retracted confession whether judicial or extra-judicial, in law, could validly form the sole basis of conviction of its maker, in cases of Tazir, if Court was satisfied that it was actually made and believed that same was true, without torture, coercion or inducement.

M. Saliheen Mughal for Appellants.

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

Date of hearing: 14th December, 2006.

PCRLJ 2007 FEDERAL SHARIAT COURT 704 #

2007 P Cr. L J 704

[Federal Shariat Court]

Before Haziqul Khairi, C.J. and Dr. Fida Muhammad Khan, J

MUHAMMAD RAHEEM alias ABDUL RAHEEM----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.26/Q and Criminal Revision No.6/Q of 2005, decided on 1st December, 2006.

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

---Ss. 2 & 24---Penal Code (XLV of 1860), Ss.391 & 395---Appreciation of evidence---Evidence of prosecution witnesses though was corroborative, but it contained number of loopholes on the face of it and created serious doubts to its credibility---Prosecution witnesses, had stated that Vardat had taken place at night at 10-30 p.m.---All seven accused including appellant-accused, were masked and armed, they stopped Tractor in question on gun-point and snatched away its key and four of them took away the Tractor---Such story was not believable; firstly, how could two prosecution witnesses, have scuffled with seven armed persons; secondly, how those two unarmed persons could have overpowered seven armed dacoits so as to render them unmasked, while receiving no injuries at all; thirdly, at night time in a rural area, how could they see so clearly and for so long, so as to recognize accused after about two years of Vardat; lastly it was also an admitted position that no identification parade of accused was held---Allowing appeal, impugned judgment was set aside by the Federal Shariat Court with direction to release accused.

Adnan Ejaz for Appellant.

Muhammad Shuiab Abbasi for the State.

Date of hearing: 1st December, 2006.

PCRLJ 2007 FEDERAL SHARIAT COURT 815 #

2007 P Cr. L J 989

[Federal Shariat Court]

Before Haziqul Khairi, C.J., Dr. Fida Muhammad Khan and Muhammad Zafar Yasin, JJ

ASHIQ ALI and another----Appellants

Versus

THE STATE and others----Respondents

Criminal Appeal No.14/K and Criminal Revision No.19/K of 2005, decided on 16th March, 2007.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 392---Appreciation of evidence---Complainant though did not name accused in F.I.R., but she had given his name the next day in her statement under S.161, Cr.P.C. as well as in her statement under S.164, Cr.P.C. on oath before a Magistrate---Contents of F.I.R. had given full description of accused and contained threat of accused that if she disclosed his name, she would face dire consequences---Counsel for accused had failed to cross-examine complainant when she appeared under S.164, Cr.P.C. as to why name of accused was not disclosed in F.I.R. and why she remained silent when accused visited her in hospital---Complainant though was the only eye-witness and was not available as prosecution witness, but her statement in F.I.R., under S.154, Cr.P.C. in hospital under S.161, Cr.P.C. and more particularly under S.164, Cr.P.C. on oath were on record---Complainant was cross-examined by counsel for accused, when she made statement under S.164, Cr.P.C. on oath in presence of accused, but her deposition remained firm and steady---To say that statements of complainant contained in her complaint and under S.164, Cr.P.C. be brushed aside having no evidentiary value, was not correct---Statement made on oath under S.164, Cr.P.C. would stand at a higher pedestal than a statement simpliciter which would give right to an accused person to cross-examine a witness---Deposition of other witnesses, if seen along with medical reports, chemical report, memos of recovery, sketch of place of Wardat, fully and independently established prosecution case against accused beyond any shadow of doubt---Objection raised by accused with regard to non-supply of copies of F.I.R., statements under Ss.161 & 164, Cr.P.C. of the complainant and prosecution witness, was incorrect as said objection was an afterthought which was taken by accused when he was re-examined under S.342, Cr.P.C. after remand of case---No such objection was taken by accused when he deposed earlier under S.340(2), Cr.P.C. in his defence nor he cared to cross-examine prosecution witness and Investigating Officer on that point---Lesser punishment was awarded to accused by the Trial Court as the complainant was not examined at the trial---Revision filed by son of deceased person wherein he prayed for enhancement of sentence of accused which according to him was death sentence, was dismissed, in circumstances---Criminal reference made by the Trial Court for confirmation of death sentence awarded to accused was answered in negative---Appeal as well revision, was dismissed.

Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95; Ijaz alias Billa and 3 others v. The State 2002 SCMR 294 and Muhammad Yasin v. The State 2002 SCMR 391 rel.

Syed Saeed Hassan Zaidi for Appellant.

Mahmood A. Qureshi and Muhammad Nazeer Tanoli for the Complainant.

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

Dates of hearing: 31st January and 6th February, 2007.

PCRLJ 2007 FEDERAL SHARIAT COURT 989 #

2007 P Cr. L J 989

[Federal Shariat Court]

Before Haziqul Khairi, C.J., Dr. Fida Muhammad Khan and Muhammad Zafar Yasin, JJ

ASHIQ ALI and another----Appellants

Versus

THE STATE and others----Respondents

Criminal Appeal No.14/K and Criminal Revision No.19/K of 2005, decided on 16th March, 2007.

Penal Code (XLV of 1860)---

Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95; Ijaz alias Billa and 3 others v. The State 2002 SCMR 294 and Muhammad Yasin v. The State 2002 SCMR 391 rel.

Syed Saeed Hassan Zaidi for Appellant.

Mahmood A. Qureshi and Muhammad Nazeer Tanoli for the Complainant.

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

Dates of hearing: 31st January and 6th February, 2007.

PCRLJ 2007 FEDERAL SHARIAT COURT 1211 #

2007 P Cr. L J 1211

[Federal Shariat Court]

Before Haziqul Khairi, C.J. and Muhammad Zafar Yasin, J

MUHAMMAD NADEEM alias DEEMI and another----Appellants

Versus

THE STATE----Respondent

Jail Criminal Appeals Nos.215/L (linked with) 216/L of 2001, decided on 17th April, 2007.

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

----Ss. 164 & 364(1)---Power to record statements and confession and mode of examination of accused---Object of S.164, Cr.P.C. read with S.364(1), Cr.P.C., was to ensure inter alia that a person examined thereunder should fully understand every question put to him in a language he understood---If an accused understood the language of the question put to him, but he was unable to comprehend the basic concept underlying therein it was incumbent upon the Magistrate to fully explain and make him understand the same; otherwise it would defeat the very object of law and result into miscarriage of justice.

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

---Ss. 308 & 201---Criminal Procedure Code (V of 1898), Ss.164 & 364(1)---Appreciation of evidence---Both accused were aged, between 9 to 14 years---Accused had remained in police custody for 13 days whereafter his confession was recorded---Such inordinate delay in recording confession, and that too of a minor in police custody, was not explained by prosecution and was completely overlooked by the Trial Court while convicting him---State counsel had conceded that there being unexplained delay of 13 days in recording confession of accused, it had no evidentiary value against him for conviction---Confession made by co-accused was neither voluntary nor free from coercion nor it was consistent with other evidence on record---Confession was retracted by both accused in their statements under S.342, Cr.P.C., wherein inter alia, accused had stated that he was not given the time to think over before the Magistrate and he was not informed that it could be treated against him---No such warning was given to co-accused to whom half an hour was given for thinking---Impugned judgment passed against accused by the Trial Court was set aside with the directions to Jail Authorities to release both accused.

Tooh v. State 1975 PCr.LJ 440; State v. Ishaque 1980 PCr.LJ 597; Bakhshal and others v. The State 1990 PCr.LJ 1; Naqibullah and another v. The State PLD 1978 SC 21; State v. Muhammad Naseer 1994 SCMR 1822; Bahadur Khan v. The State PLD 1996 SC 336; State v. Minhun alias Gul Hassan PLD 1964 SC 813; Khalid Javed and another v. The State 2003 SCMR 1419; Mst. Naseem Akhtar v. The State 2003 MLD 530; Javed Masih v. The State 1993 SCMR 1574; Nadir Hussain v. The Crown 1969 SCMR 442; Muhammad Amin v. The State PLD 1990 SC 484; Muhammad Yaqoob v. The State 1992 SCMR 1983; Fazlur Rehman v. The State PLD 1960 (W.P.) Pesh. 74; Wali Muhammad alias Nandhoo v. The State 1986 PCr.LJ 1153 and Muhammad Mushtaq v. The State 2001 YLR 1164 ref.

Ms. Asma Jehangir and Muhammad Rafique Chaudhary, Rana Javed Anwar Khan M.D. Tahir and Mujeeb Faisal Chaudhary for Appellants.

Asjad Javed, D.P.G. for the State.

Date of hearing: 23rd February, 2007.

PCRLJ 2007 FEDERAL SHARIAT COURT 1226 #

2007 P Cr. L J 1226

[Federal Shariat Court]

Before Muhammad Zafar Yasin, J

RAHIM BUX and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.86/K of 2006, decided on 11th May, 2006.

Penal Code (XLV of 1860)---

----Ss. 361 & 365-A---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Appreciation of evidence---Accused were acquitted of the charge under S.17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979, but they had been found guilty under S.365-A, P.P.C.---`Qaboliatnama' of engagement of alleged abductee had fully supported defence version that parents of alleged abductee had agreed to give in marriage their daughter to brother of one of accused---Alleged abductee had categorically deposed in her statement that she was never kidnapped by the accused and had stated that she was engaged with brother of accused by her father and mother---Alleged abductee had further deposed that out of her wedlock she had got two children and that her minor brother had come with her when she had gone to see her mother after her marriage; and that her mother after death of her husband (father of alleged abductee); having contracted second marriage, said minor brother was residing with her/alleged abductee---Accused had been rightly acquitted of charge under S.17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979---Ingredients of offence punishable under Ss.361 & 365-A, P.P.C., having not been made out, accused had committed no offence---Conviction and sentence awarded to accused by the Trial Court, were set aside and accused were acquitted of the charge.

Shoukat Hayat for Appellants.

Aghar Zafir, Asstt. A.-G. for the State.

Date of hearing: 7th February, 2007.

PCRLJ 2007 FEDERAL SHARIAT COURT 1242 #

2007 P Cr. L J 1242

[Federal Shariat Court]

Before Haziqul Khairi, C.J. and Salahuddin Mirza, J

MEHAR ALI SHAH----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.5/K of 2006, decided on 30th April, 2007.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Plea of alibi set up by accused which was afterthought, was rightly disbelieved by the Trial Court---Said plea was not put up by accused to any of the prosecution witnesses---Evidence adduced by accused was made up, concocted, inconsistent and not convincing at all---All eye-witnesses produced by the prosecution were natural witnesses as one of them, a neighbour, was on a visit to complainant's house, two others were sitting in the house of another neighbour and rushed to the house of complainant on hearing cries and gun fire---Accused had no enmity, either with the complainant or any of prosecution witnesses so as to falsely implicate him---Accused was caught red-handed in a case of murder and recovery of pistol was made on the spot as evidenced by Mashirnama of recovery and arrest---Judgment passed by the Trial Court convicting and sentencing accused was upheld.

State v. Ishaq PCr.LJ 597; Tooh v. The State 1975 PCr.LJ 440; Muhammad Israr and another v. The State 2002 PCr.LJ 1072; Naqibullah and another v. The State PLD 1978 SC 21; Khalid Javed and another v. The State 2003 SCMR 1419; Muzaffar Baig and others v. The State 1983 PCr.LJ 2482 and Haji Ghulam Shabbir v. The State 1978 SCMR 216 rel.

Rasool Bux Palijo for Appellant.

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

Date of hearing: 26th March, 2007.

PCRLJ 2007 FEDERAL SHARIAT COURT 1262 #

2007 P Cr. L J 1262

[Federal Shariat Court]

Before Haziqul Khairi, C.J., Dr. Fida Muhammad Khan and Salahuddin Mirza, JJ

MUHAMMAD YOUNAS and 4 others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeals Nos. 221/L and 311/L of 2003, decided on 12th April, 2007.

Penal Code (XLV of 1860)---

----Ss. 302, 354, 365 & 452---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11---Appreciation of evidence---Sentence, reduction in---Nothing was in deposition of prosecution witnesses which would create an iota of doubt about house trespassing by accused, kidnapping alleged abductee and outraging her modesty coupled with criminal force used by them---Not only her deposition, but of other prosecution witnesses had fully corroborated her statement---Overwhelming irrebutable and credible evidence was available supporting the truthfulness of prosecution witnesses---Judgment passed by the Trial Court, was upheld with modification that sentence awarded to accused person was reduced from seven years' R.I. to five years' R.I., which were to run concurrently with benefit of S.382-B, Cr.P.C.

Saee and others v. The State 1984 SCMR 1069 and Allah Dad v. The State 1995 SCMR 142 rel.

Mian Muhammad Afzal Watto for Appellants.

Rehan Zafar for Appellant.

Muhammad Fayyaz for the State.

Date of hearing: 1st March, 2007.

PCRLJ 2007 FEDERAL SHARIAT COURT 1375 #

2007 P Cr. L J 1375

[Federal Shariat Court]

Before Haziqul Khairi, C.J., Dr. Fida Muhammad Khan and Muhammad Zafar Yasin, JJ

IQBAL MASIH and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.11/L, 26/L and Criminal Murder 'Reference No.9/L of 2002, decided on .10th May, 2007.

Penal Code (XLV of 1860)---

---Ss. 302 & 201---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Appreciation of evidence---Benefit of doubt---Deposition of complainant, had been supported by two prosecution Witnesses---Both the witnesses had deposed about the extra-judicial confession made separately by accused persons in the presence of their father one after, the other---One of accused persons, specifically confessed that he had killed deceased by strangulating him after committing sodomy with him---Accused repeatedly requested for getting pardon from the father of deceased---One of said prosecution witnesses was Lambardar/cultivator of the village and enjoyed respectable position---Other one was a cultivator by profession---Prosecution had examined two other prosecution witnesses who had last seen deceased being taken away by accused inside his house---Both said prosecution witnesses were consistent in their statements; their statements, however, did not inspire confidence for the reason that they had seen accused taking away deceased, but never informed complainant for several days, despite the fact that they being relatives of deceased were worriedly searching deceased---Recovery of Chadar and shoes on pointation of accused from an iron chest lying in his room, did not inspire confidence as it appeared unnatural on the part of accused to have kept Chadar and shoes of deceased in his house after committing his murder---Such recovery was effected 15 days after occurrence---Accused had ample time at his disposal to destroy same---Case of prosecution against accused was doubtful and as such he was entitled to get the benefit of said doubt---Quality of evidence brought by the prosecution, was not sufficient to sustain charge against accused for such a heinous offence---Conviction and sentence awarded to accused by the Trial Court were set aside extending him benefit of doubt and he was acquitted of the charges and was released from jail---Criminal appeal of co-accused had become infructuous for the reason that on completion of sentences awarded to him, he had already been released.

Justin Gill, Samson Juseph and Akbar Munawar Duirrani for Appellants.

Syed Fazal Hussain Jafferf for the State.

?Date of hearing: 20th February, 2007.

PCRLJ 2007 FEDERAL SHARIAT COURT 1408 #

2007 P Cr. L J 1408

[Federal Shariat Court]

Before Haziqul Khairi, C.J. and Salahuddin Mirza, J

KAMAL DIN alias BAGGA and 2 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.192/L, 196/L, 199/L and Criminal Revision No.69/L of 2005, decided on 11th May, 2007.

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

----S. 10---Appreciation of evidence---Female co-accused having not been found guilty of offence alleged against her, her conviction and sentence by the Trial, Court, were set aside---Only evidence against other co-accused, not only was vague, but Contradictory---Even otherwise female co-accused had categorically exonerated the male accused in her statement under S.342, Cr.P.C. as she denied in her cross-examination under S.340(2), Cr.P.C. that he had committed Zina-with her---Not only insufficient, but also unreliable evidence on record was against him---Name of accused also did not appear in F.I.R.---Trial Court did not apply its mind and in ignorance or haste had convicted the male accused---Conviction and sentence awarded to male accused by the Trial Court, were set aside, in circumstances.

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

----S. 10---Appreciation of evidence---Accused had committed a heinous offence and he had destroyed the life of 13 years old girl---No mitigating circumstances to justify a much lesser punishment---Punishment of six years' R.I. and fine of Rs.20,000 awarded to accused by the Trial Court was enhanced to 15 years' R.I. and fine of Rs.40,000 and he was convicted and sentenced under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 accordingly.

Ch. Riaz Ahmed Kataria and Kawar Ikram Bhatti for the Appellants (in Criminal Appeals Nos.192/L 196/L and 199/L of 2005).

Syed Ali Imran D.P.G. Punjab for the State (in Criminal Appeals Nos.192/L 196/L and 199/L of 2005).

Nemo for Petitioner (in Criminal Revision No.69/L of 2005).

Date of hearing: 19th April, 2005.

PCRLJ 2007 FEDERAL SHARIAT COURT 1605 #

2007 P Cr. L J 1605

[Federal Shariat Court]

Before Haziqul Khairi, C.J., Dr. Fida Muhammad Khan and Salahuddin Mirza, JJ

MUHAMMAD JAVED and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.102/I of 2005 linked with 88/I of 2003 linked with Criminal Revision No.24/I linked 25/I of 2002 and Murder Reference No.10/I of 2002, decided on 7th June, 2007.

Penal Code (XLV of 1860)---

----Ss. 302(b), 308 & 377---Appreciation of evidence---Questions which could emerge out of the .facts of the case, were; that as to why the complainant did hot revisit the houses of accused persons which were nearby to find out if his children or the accused were there and allowed the whole night and the forenoon of the next day to pass; that as to why the complainant did not report the matter to police of his missing children for about 20 hours when one was aged 7 years and the other an infant of 2-1/2 years; what relationship accused had with prosecution witness and what persuaded him to confide in him and make confession before him and thereafter .before others; that as to why the police arrested co-accused after delay of 9 days of confession of accused and from which. place; that was there any motive of accused killing both children of the complainant after committing sodomy with them; that was it possible for an illiterate village boy of 9 years to propound in his statement under S.342, Cr.P.C. a ransom theory for his defence, if not tutored; and that whether in the absence of available independent witnesses the evidence of prosecution witnesses who were close relatives of complainant, be relied upon---Some of the questions, either, had no answers to offer or if replied would be extraneous to the record, based upon surmises and conjectures, whims and fantasies---When such strong doubts would creep into the prosecution case which rested on extra-judicial confession of dubious nature and last seen evidence, each piece of which had been designedly made to have nexus with the other, it would lead to irresistible conclusion that the prosecution had failed to establish its case against accused---Impugned judgments passed by the Trial Court, were set aside releasing both the accused---Reference for confirmation of death penalty of .accused was replied in negative.

Sajid Mumtaz v: Basharat and others 2006 SCMR 231; Muhammad Ashraf alias Naik Muhammad v. The State 2005 PCr.LJ 123; Muhammad Nadeem v. The State 1992 PCr.LJ 1520; Robina Bibi v. The State 2001 SCMR 1914; Mst. Nasim Akhtar v. The State 2000 MLD 530; Muhammad Feroz v. The State NLR (sic) Criminal 474; Manni v. Emperor AIR 1930 Oudh 406; Sultan v. The State PLD 1965 Kar. 615; Sona Miah v. The State PLD 1960 Dacca 396 Naqibullah and another v. The State PLD 1978 SC 21; PLC 1996 SC 305; 2002 MLD 1027; 2002 SCMR 1247 and 1998 SCMR 2669 ref.

Sardar Muhammad Ishaq Khan and Ansar Nawaz Mirza for Appellants.

Malik Rab Nawaz Noon for Appellant (in Criminal Revision No.24/I linked with Criminal Revision 25/for 2002).

Muhammad Sharif Janjua for the State (in Criminal Revision No.24/I linked with Criminal Revision 25/I of 2002).

Date of hearing: 4th April, 2007.

PCRLJ 2007 FEDERAL SHARIAT COURT 1627 #

2007 P Cr. L J 1627

[Federal Shariat Court]

Before Haziqul Khairi, C.J. and Salahuddin Mirza, J

UMAR DIN and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.245/L linked with Criminal Appeal No.259/L of 2005, decided on 7th June, 2007.

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

----S. 11---Appreciation of evidence---Case of two versions--No eye-witness of abduction of alleged abductee from her house---Mother of alleged abductee, found her missing from the house when she got up in the morning---Other prosecution witness saw alleged abductee in the company of accused at the Bus stop---Version of alleged abductee was that by deceit she was taken out from her house by female co-accused who was .her neighbour, whereafter accused took her away in a car by administering something, the smell whereof made her unconscious---Both the stories were poles apart and not only contradictory, but also distractive xo each other on all material respects---If the first version was accepted their prosecution witness saw her in the company of accused at a public place, but she raised no hue and cry nor sought help from him or others---No mark of violation or injury was found on her external genitalia nor any stains of semen were on her body or clothes---Swabs though were stained with semen, but there was no matching or grouping---Prosecution .stand had been tore apart by its own witnesses benefit to which would go to accused leading to their acquittal---Conviction and sentences awarded to accused, by the Trial Court were set aside and they were acquitted and released.

State v. Khuda Dad and another 2004 SCMR 425 and Abdul Jabar v. The State PLD 1991 SC 172 ref.

Muhammad Farooq Chishti, Ashraf Ali Javed, Umar Pasha Chaudhry and Muhammad Arshad for Appellants.

Pervaiz Alamgir, Deputy Prosecutor-General for the State.

Date of hearing: 20th April, 2007.

PCRLJ 2007 FEDERAL SHARIAT COURT 1640 #

2007 P Cr. L J 1640

[Federal Shariat Court]

Before Haziqul Khairi, C.J., Dr. Fida Muhammad Khan and Salahuddin Mirza, JJ

MUHAMMAD and another----Appellants

Versus

THE STATE and another----Respondents

Criminal Appeal No.116/L of 2001, decided on 10th May, 2007.

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

----S. 7---Appreciation of evidence---Accused had claimed that complainant got married to him during their minority in a Watta Satta arrangement made by elders, but Rukhsati of complainant did not take place after her attaining majority despite repeated demands by him to her father---Complainant got married to her Phuphizad, her Rukhsati took place, three children were born in said wedlock---Accused, on coming to know said marriage, imputed Zina to complainant and got published defamatory statements in Newspapers and circulated same through pamphlets---Complainant was constrained to file a private complaint against accused on which inquiry 'was held by a Magistrate who submitted a report to the Trial Court stating that a prima facie case under S.7 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 was made out by the complainant against accused---Trial Court on basis of evidence brought on record convicted and sentenced accused to 80 stripes---Validity---Imputation of Zina which was a matter of grave nature, was repeatedly made by accused and got it published through newspapers and by distribution of pamphlets, which had not been denied by accused---Complainant was a First Class Graduate and a qualified teacher at Government Girls School, and by virtue of her position she must be commanding respect in the eyes of her colleagues, students and society---Such wild, unfounded and malicious allegation of Zina against complainant by accused could not be overlooked---Accused stood by their defamatory statements and the Trial Court had found that statements of accused were defamatory and false---Accused having failed to establish the childhood marriage and allegation of Zina against complainant, were liable to be sentenced to 80 stripes---Conviction and sentence awarded by the Trial Court to accused, were upheld and confirmed.

Bakht Ali and another v. The State 193 PCr.LJ 1872 ref.

Qureshi Muhammad Saeed Asadi for Appellants.

Amir Abdullah and Rana Zaheer-ul-Hassan for the Complainant.

Asjad Javaid, D.P.G. for the State.

Date of hearing: 7th March, 2007.

PCRLJ 2007 FEDERAL SHARIAT COURT 1648 #

2007 P Cr. L J 1648

[Federal Shariat Court]

Before Haziqul Khairi, C.J., Dr. Fida Muhammad Khan and Salahuddin Mirza, JJ

AJAB KHAN----Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.5/P of 2006 (linked with) Criminal Reference No.3/I of 2006, decided on 7th June, 2007.

Penal Code (XLV of 1860)---

----S. 412---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Appreciation of evidence---Nothing was on record which could favour accused in any manner despite lengthy cross-examination of prosecution witnesses---Accused was caught red handed and huge amount was recovered from him---No evidence had been adduced by accused in defence for his plea for demand of money by police or his false implication---Trial Court had rightly convicted and sentenced accused under S.412, P.P.C., but there was no justification for conviction and sentence of accused under S.17 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 as same- did not fulfil requirements of 'Tazkiat-al-Shahood' within the contemplations of S.7(b) of the Ordinance---Conviction and sentence of accused under S.17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was set aside, but conviction and sentence of accused under S.412, P.P.C. was upheld, whereby he had to undergo five years' R.I. and fine Rs.30,000.

Nasrullah for Appellant.

Muhammad Sharif Janjua for the State.

Date of hearing: 28th May, 2007.

PCRLJ 2007 FEDERAL SHARIAT COURT 1682 #

2007 P Cr. L J 1682

[Federal Shariat Court]

Before Haziqul Khairi, C.J., Dr. Fida Muhammad Khan and Salahuddin Mirza, JJ

TAHIR SARWAR alias SHAHAB and others----Appellants

Versus

THE STATE and others----Respondents

Criminal Appeals Nos.287/L, 291/L, 300/L, 331/L Criminal Revision No.110/L of 2004 and Criminal Murder Reference No.2/L of 2005, decided on 27th July, 2007.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Appreciation of evidence---Dead body of deceased was not recovered and whether she was still alive or not; was not ascertainable---Nowhere in the entire record of the case the time when the dead body was thrown into the canal, had been mentioned nor the fact whether it was day or night---Car in which dead body was carried, was. not produced---Case was re-opened after about 1 year and 8 months on the order of Supreme Court and subsequent statement made by complainant containing fresh accusation, which, at best, be treated as a supplementary. statement, was not free from suspicion---Cumulative effect of withdrawal of~ the case by complainant against accused, negotiation for compromise, physical torture to him and element of defy, had adversely affected prosecution case---Chain of events had broken at several places---Most of the independent witnesses had turned hostile while others did not inspire confidence---Statements of witnesses were either contradictory or vague or reflected their ignorance of prosecution case---Was unnatural :,and unbelievable that deceased was taken into a car from a busy area to bridge of canal where there was heavy flow of traffic round the clock, yet accused were able to reach there with the dead body not .apprehensive of the tact that someone. on the way would see them---At the canal also they were able to take out the dead body and successfully threw it into the canal where the offices of various agencies were located and functioning---No explanation was available by the prosecution as to why no one from public was involved in their investigation and particularly in regard to recoveries made by them. which violated the provisions of S.103, Cr.P.C.---Alleged confession made by accused before father and uncle of deceased, did not deserve to be looked into as there was clear violation of provisions of S.342, Cr.P.C.---No credibility could be attached to said extra-judicial confession made by accused to father and uncle of deceased, not related to him with whom accused had also developed enmity subsequent to the crime---Implication of accused on said extra-judicial confession, was of no legal effect---Conviction and sentences awarded to accused were set aside and they were directed to be' released.

Khalid Javed v. State 200,3 SCMR 1419; Muhammad Aslam v. Muhammad Zafar and 2 others PLD 1992 SC 1;' Ch. Barkat Ali v. Major Karam Elahi Zia 1992 SCMR 1047; Ali Khan v. The State 1999 SCMR 955; Muhammad Arshad v. The State 1992 SCMR 1187; Arshad Rehman v The State and 2 others 2005 PCr.LJ 39; PLD 1997 SC 408; 1999 PCr.LJ 1546; Muhammad Siddiq and another v. The State 1974 PCr.LJ 118 and Muhammad Sanafar Ali v. The State 1969 SCMR 468 ref.

Dr. Babar Awan, Khalid Mian, Sardar Muhammad Latif Khan Khoso, Sheikh Khizar Hayat, Shahid Nawaz Langarial and Nasiruddin for Appellants.

Muhammad Taqi Khan for the Complainant.

Muhammad Sharif Janjua for the State.

Date of hearing: 8th June, 2007.

PCRLJ 2007 FEDERAL SHARIAT COURT 1730 #

2007 P Cr. L J 1730

[Federal Shariat Court]

Before Haziqul Khairi, C.J. and Salahuddin Mirza, J

JEHANGIR and 2others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.404/L of 2004 (linked with) Criminal Appeal No.23/L of 2005, decided on 7th June, 2007.

Penal Code (XLV of 1860)---

----Ss. 324, 334, 337-F(i} & 452---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), 5.10---Appreciation of evidence---Two of the accused persons were declared innocent by the first Investigating Officer, but subsequently, they were challaned along with others all of whom were -found guilty---Trial Court did not believe that there was absolute darkness on the night of occurrence or no electric light was available in and around the premises when crime was committed--No ambiguity existed as per record so far as commission of multiple crime was concerned---Eye-witnesses had truthfully stated the role, each accused had played in the commission of crime and how the victim had suffered at their hands giving minute details of events subsequently occurring---Overwhelming evidence of complainant, three injured prosecution witnesses, and alleged abductee, had fully corroborated prosecution story and had remained irrebutable despite lengthy cross-examination by the defence---No cracks, loopholes or discrepancies were found in the commission of crime so as to upset the conviction of accused---Prosecution case was further established by medical evidence of the injured persons which had nexus with the arms used by accused---Medical and chemical report of abductee and the potency test of accused fully supported her deposition without any iota of doubt---Plea of delay in that backdrop, in lodging F.I.R. was insignificant---Conviction and sentence awarded to accused by the Trial Court, were maintained---Sentence of accused persons would run concurrently and they would also be entitled to the benefit of S.382-8, Cr.P.C.

Muhammad Masood Chishti and Khan Imtiaz Ali Khan for Appellants.

Muhammad Rafiq Khokhar, Deputy Prosecutor-General for the State.

Date of hearing: 17th April, 2007.

PCRLJ 2007 FEDERAL SHARIAT COURT 1792 #

2007 P Cr. L J 1792

[Federal Shariat Court]

Before Haziqul Khairi, CJ

Mst. ROSHAN BIBI and another----Appellants

[Karachi]

Before Muhammad Moosa K. Leghari, J

ABDUL GHAFOOR----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-602 of 2006, decided on 16th October, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 498---Penal Code (XLV of 1860), Ss.337-A(ii), 337-F(i), 504 & 34---Pre-arrest and after arrest bail, grant of---Counter-cases---Cases had been challaned and maximum punishment provided for the injuries sustained by injured, was five years---State counsel had not extended objection to grant of bail to accused---Accused was granted after arrest bail, whereas interim pre-arrest bail granted to co-accused was confirmed accordingly.

Khadim Hussain D. Solangi for Applicant.

Anwar H. Ansari for the State.

PCRLJ 2007 KARACHI HIGH COURT SINDH 60 #

2007 P Cr. L J 60

[Karachi]

Before Sajjad Ali Shah, J

SHAFIQUE HUSSAIN----Applicant

Versus

THE STATE----Respondent

Bail Application No.387 of 2006, decided on 3rd August, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Further inquiry---Complainant accompanied his father on the next day of alleged incident to the police station along with Nekmard, where his father lodged N.C. report stating that deceased had committed suicide due to exchange of hot words with him by firing gun shot at himself; and no one was guilty and they did not intend to lodge F.I.R.---Similar statement of complainant under S.161, Cr.P.C. was also recorded by the police---Prosecution had not denied said report---No eye-witness of the incident was available and accusation against accused was general in nature and no specific role had been assigned to him---Gun recovered from accused was given negative report, non-recovery of empties from the place of incident, blood-stained clothes produced before Investigating Officer without holes and no eye-witness to the incident, had left no doubt that case against accused was of further inquiry within ambit of S.497(2), Cr.P.C.---Accused in circumstances was entitled to concession of bail.

Lakhmir Kurio v. State 2005 YLR 1467; Allah Bux v. State 2005 SLJ 697; Rano and 2 others v. State 2003 MLD 1610; Syed Shabat Raza Zaidi v. State 2004 PCr.LJ 910; Muhammad Aslam and others v. State 1997 SCMR 251; Amir v. State PLD 1972 SC 277 and Muhammad Amin alias Irfan v. State 2004 SCMR 1560 rel.

Madad Ali Shah Syed for Applicant.

Anwar H. Ansari State counsel.

PCRLJ 2007 KARACHI HIGH COURT SINDH 70 #

2007 P Cr. L J 70

[Karachi]

Before Mrs. Qaiser Iqbal, J

NABI BUX and 2 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.35 of 2002, decided on 11th October, 2006.

Penal Code (XLV of 1860)---

----S. 337-F(vi)/34---Appreciation of evidence---Benefit of doubt--Accused persons (two out of three) did not cause injuries to injured eye-witness who was present on the spot with deceased when alleged incident occurred---Complainant and prosecution witnesses were closely related inter se and with the deceased---Evidentiary value of interested and inimical witnesses could not be relied upon without corroboration from independent source and in the present case, testimony of said witnesses was not corroborated by any independent source---One of the prosecution witnesses did not depose about the seat of injuries alleged to have been caused by accused persons---Motive of occurrence did not stand proved---When eye-witnesses were not believed for commission of major offences same could not be relied upon for a subservient act---Case against the other (third) accused person being not free from doubt, he was acquitted by the Trial Court from the charges relating to commission of murder of deceased on basis of same evidence---Said accused could not be convicted under S.337-F(v), P.P.C.---Accused persons were acquitted extending them benefit of doubt.

Muhammad Jehangir alias Badshah and another v. State 1995 SCMR 1715 rel

Syed Madad Ali Shah for Appellants.

Mashooque Ali Samoon, Asstt. A.-G. for the State.

Date of hearing: 11th October, 2006.

PCRLJ 2007 KARACHI HIGH COURT SINDH 78 #

2007 P Cr. L J 78

[Karachi]

Before Muhammad Moosa K. Leghari, J

MUHAMMAD RIZWAN----Applicant

Versus

THE STATE and 3 others----Respondents

Criminal Miscellaneous Application No.150 of 2005, decided on 2nd October, 2006.

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

----S. 497(5)---Bail, cancellation of---Conditions---Bail can be cancelled if the same has been granted in capricious manner either without assigning reasons, or on the basis of perverse or invalid reasons---Bail can also be cancelled, if accused attempts to tamper with the evidence, hampers investigation, commits or attempts to commit same offence or if he absconds after grant of bail--Each criminal case has to be decided keeping in view the facts and peculiar circumstances of that very case as no hard and fast rule has been laid down in respect of matter of cancellation of bail.

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

----S. 497---Bail---Successive bail applications---Grounds available but not raised---Procedure---Since earlier bail application was dismissed on merits, therefore, all grounds which were raised by accused and / or which were available to them but were not raised, would be deemed to have been raised and rejected.

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/34---Bail, cancellation of---Deeper appreciation of evidence---Earlier bail application filed by accused was dismissed by Trial Court on merits---Procedure---Bail application filed in High Court was dismissed as withdrawn, with a direction to Trial Court to record statements of prosecution witnesses within two months---Accused filed another bail application before Trial Court, subsequent to recording of statements of complainant and three witnesses, which application was allowed---Plea raised by complainant was that Trial Court granted bail after deep appreciation of evidence---Validity---Trial Court while granting bail proceeded to re-consider and re-examine the merits of the case which were not available to accused---Trial Court gave benefit of delay in recording statements of eye-witnesses by Investigating Officer and contradictions in the ocular and medical evidence---Trial Court exceeded legal limits as, such findings could only be recorded after conclusion of the trial---Trial Court conducted elaborate sifting of evidence, which was not warranted at bail stage, as it was beyond the contemplation of S.497, Cr.P.C.---Trial Court flouted the settled principles of law while granting bail to accused and such discretion was not exercised judiciously and fairly and bail was granted in capricious and perverse manner---Bail was cancelled in circumstances.

Rahim Bakhsh v. Shah Nawaz and another 2003 SCMR 1966; Saleh Muhammad v. The State and another 1981 SCMR 993; Aijaz Ali v. The State PLD 1981 Kar. 484; Sono Khan J. Sikandar and another 2000 PCr.LJ 614; Nazar Masih v. Yaqoob Masih and others 2002 PCr.LJ 662; Muhammad Khan v. Muhammad Ijaz and another 2004 PCr.LJ 1166; Mst. Shareefan Bibi v. Manzoor Hussain and others 2005 PCr.LJ 1008; Niamat Ali v. Ali Muhammad alias Mangta and 2 others 2005 PCr.LJ 424; Sher Muhammad Khan v. Muhammad Ashraf Khan Tareen and others 1991 SCMR 239; Muzaffar Iqbal v. Muhammad Imran Aziz and others 2004 SCMR 231; National Accountability Bureau v. Khalid Masood and another 2005 SCMR 1291; Abdul Haleem Lakho v. Abdul Karim alias Karim Bux and others 2005 SCMR 1539; Government of,Sindh and 4 others v. Raeesa Farooq and 5 others 1994 SCMR 1283; Mehmood Ahmed and 3 others v. The State and another 1995 SCMR 127; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Hazzaro alias Hazzaroo and others v. The State 1998 Cr.LJ 773 and Farman Ali v. The State 1997 SCMR 971 ref.

Khalid Javed Gillan v. The State PLD 1978 SC 256 fol.

Choudhry A. Rasheed for Applicant.

Shaukat Hayat for Respondents Nos.2-4.

Mrs. Raana Khan for the State.

PCRLJ 2007 KARACHI HIGH COURT SINDH 89 #

2007 P Cr. L J 89

[Karachi]

Before Sarmad Jalal Osmany and Ali Sain Dino Metlo, JJ

MUHAMMAD FAROOQ KHAN ----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.766 of 2006, decided on 10th October, 2006.

(a) Police Order [22 of 2002]---

----Art. 18(4)--- Investigation--- Entrustment--- Procedure--- After registration of ,.I.R., investigation was entrusted to the staff of police station and not to investigation staff---Effect---Such entrustment of investigation being in clear violation of Art. 18 (4) of Police Order, 2002, was patently illegal---Though such entrustment might not have the effect of vitiating the trial, the same would certainly damage fairness of investigation, one of the main objects sought to be achieved by Police Order, 2002, as well as credibility of the officer blatantly violating the law---Such officer would be exposing himself to disciplinary action and might also incur risk of penalty under Police Order, 2002.

(b) Bail---

----One cannot be kept in custody on the basis of mere suspicion.

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51---Bail, grant of---Case of further inquiry---Quantity of narcotics---Tentative assessment of evidence---During raid, police arrested three persons and recovered 25 kilograms of Charas---Persons arrested from the spot were exonerated during investigation---Accused was arrested on the pointation of exonerated accused person who was neither cited as prosecution witness, nor accused was put to identification test---Contention of prosecution was that under S.51 of Control of Narcotic Substances Act, 1997, bail could not be granted to accused, as huge quantity of narcotic was recovered---Validity---Such contention of prosecution was without any weight---Quantity could be given importance only when the same was linked with accused by cogent evidence---Ban contained in S.51 of Control of Narcotic Substances Act, 1997, would be attracted only when there were reasonable grounds for believing that accused was guilty of the alleged offence--- High Court was competent to grant bail in appropriate cases, notwithstanding the provisions of S.51 of Control of Narcotic Substances Act, 1997---No reasonable grounds for believing accused guilty of offence being available, and matter required further inquiry into guilt of accused, bail was granted to accused in circumstances.

Gul Zaman v. The State 1999 SCMR 1271; Bahadur Khan v. The State 2000 SCMR 677 and State v. Syed Abdul Qayum NLR 2001 Criminal 426 Supreme Court rel.

Raza Hashmi for Applicant.

Habib Ahmed, A.A.-G. along with Police Inspector Muhammad Saeed Rind, S.H.O. Police Station Mehmoodabad and S.I.P. Raja Jehangir of Police Station Defence.

PCRLJ 2007 KARACHI HIGH COURT SINDH 98 #

2007 P Cr. L J 98

[Karachi]

Before Muhammad Moosa K. Leghari, J

DAWAR KHAN----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.864 of 2006, decided on 27th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497--- Penal Code (XLV of 1860), Ss.324/353/34---Bail, grant of---Rule of consistency---Delay in trial---Accused along with two other co-accused was arrested for, assaulting police party---Neither crime empties were secured from place of occurrence nor any person from either side sustained injury in the alleged encounter---Accused was behind bars for more than one year but case had not concluded in spite of the fact that all witnesses were police personnel---Plea raised by accused was that two co-accused had been granted bail---Contention of prosecution was that instead of grant of bail, direction might be given for expeditious conclusion of trial---Validity---Imparting direction to proceed with the case expeditiously would be of no consequence as prosecution did not seem to be serious in prosecuting the case---Accused could not be allowed to rot in jail on account of lukewarm lethargic rather callous conduct displayed by police---Bail to accused was declined by Trial Court without taking note of previous bail order, and/or distinguishing role of accused---Ground of grant of bail to co-accused conspicuously appeared to have been taken by the accused in his application for bail---Refusal of bail to accused was violative of the rule of consistency and militated against the norms of smooth and even-handed dispensation of justice---Bail was granted in circumstances.

Shamsher Abbas for Applicant.

Cooki Rawat for the State.

PCRLJ 2007 KARACHI HIGH COURT SINDH 102 #

2007 P Cr. L J 102

[Karachi]

Before Muhammad Moosa K. Leghari, J

RAEES ASHFAQ and another----Applicants

Versus

THE STATE----Respondent

Criminal Revision Application No.57 of 2006, decided on 27th September, 2006.

Penal Code (XLV of 1860)---

----Ss. 380/454/34---Prevention of Corruption Act (II of 1947), S.5(2)---Pakistan Criminal Law Amendment Act (XL of 1958), Ss.3, 4 & 5---Criminal Procedure Code (V of 1898), Ss.435, 439 & 561-A--- Special Judge, jurisdiction of---Offences not mentioned in schedule---Plea raised by accused was that offences mentioned in F.I.R. were not triable by Special Judge---Validity---F.I.R. was registered under Ss.380 and 454 P.P.C;. and charge-sheet was also submitted under the same sections of Penal Code, 1860---Offences falling under Ss.380 and 454 P.P.C. were not covered by the Schedule of Pakistan Criminal Law Amendment Act, 195F,---Even there was no accusation of bribery and corruption against accused to constitute offence under Prevention of Corruption Act, 194 7---Special Judge constituted under Pakistan Criminal Law Amendment Act, 1958, had no jurisdiction to take cognizance of the matter to try such offence, thus cognizance taken by Special Judge was unlawful---High Court directed Special Judge to return charge-sheet/ papers to police for proceeding in accordance with law as proceedings before Special Judge were illegal---Revision was allowed accordingly.

Munir Ahmed Khawaja for Applicants.

Shahida Jatoi for the State.

PCRLJ 2007 KARACHI HIGH COURT SINDH 105 #

2007 P Cr. L J 105

[Karachi]

Before Sarmad Jalal Osmany and Ali Sain Dino Metlo, JJ

MUHAMMAD AMIN QURESHI and another----Petitioners

Versus

THE STATE----Respondent

C.Ps. Nos.1256 and 1320 of 2006, decided on 26th September, 2006.

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

----S. 9(a)(xii)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Bail, grant of---"Abetment"---Connivance of accused with his co-accused---Proof---Necessary ingredient---Tentative assessment of evidence---Case of further inquiry---Cashier of a bank was found to have misappropriated a huge amount deposited with him as utility bills of two different departments---Accused persons were the officials of the departments concerned and were alleged to have connived with cashier in misappropriation, as they had allegedly failed to collect scrolls and stubs from the bank---Validity---To establish connivance, which was a form of abetment, presence of guilty mind was necessary---Omission on the part of accused persons must be coupled with their guilty mind for which at least knowledge of crime was essential---Nothing was available on record to show that accused persons were in knowledge of misappropriation made by cashier---Merely from telephonic contacts of accused with cashier, without knowing the nature of conversation, it could not be assumed that they knew about misappropriations of cashier---In absence of guilty mind, failure to collect scrolls and stubs, even if misappropriated amounts were mentioned in them, criminal liability would not be attracted---High Court was tentatively of the view that prosecution had failed to make out reasonable grounds for believing the accused persons guilty of offence and it required further inquiry into their guilt---Bail was allowed in circumstances.

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

----S. 9(a)(vi)---Word "wilfully"---Applicability---Pre-condition---In wilful failure to exercise authority to prevent commission of crime as mentioned in S.9 (a)(vi) of National Accountability Ordinance, 1999, word "wilfully" necessarily implies knowledge of the crime.

I.A. Hashmi and Muhammad Ashraf Kazi for Petitioners.

Shafat Nabi Sherwani, D.P.G., NAB for the State.

PCRLJ 2007 KARACHI HIGH COURT SINDH 111 #

2007 P Cr. L J 111

[Karachi]

Before Muhammad Moosa K. Leghari, J

HANIF----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.751 of 2006, decided on 17th August, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), 5.411---Bail, grant of---Further inquiry---Case against accused was of further inquiry as alleged recovery of vehicle from the possession of accused was doubtful---Besides offence warranting sentence of three years, did not fall within the prohibition contained in S.497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Muhammad Nawaz Khan Abbasi for Applicant.

Ms. Shahida Jatoi for the State.

PCRLJ 2007 KARACHI HIGH COURT SINDH 116 #

2007 P Cr. L J 116

[Karachi]

Before Muhammad Moosa K. Leghari, J

GHULAM MUSTAFA and another----Applicants

Versus

THE STATE----Respondent

Criminal Bail Applications Nos.S-602 and S-603 of 2006, decided on 16th October, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 498---Penal Code (XLV of 1860), Ss.337-A(ii), 337-L, 337-F(i), 337-H(2), 504 & 34---Pre-arrest and after arrest bail, grant of---Parties had registered counter cases against each other---Cases had been challenged and maximum punishment provided for injuries sustained by injured was five years which did not fall within the prohibition contained under S.497, Cr.P.C.---Accused was granted after arrest bail, whereas interim pre-arrest bail was granted to co-accused was confirmed.

Khadim Hussain D. Solangi for Applicants.

Anwar H. Ansari for the State.

PCRLJ 2007 KARACHI HIGH COURT SINDH 130 #

2007 P Cr. L J 130

[Karachi]

Before Rahmat Hussain Jafferi, J

ZAFAR IQBAL and 3 others-Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.S-37 and Criminal Revision Application No.S-63 of 2003, decided on 15th September, 2006.

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

----S. 337-A(i) & (iii)---Appreciation of evidence---All prosecution witnesses had assigned specific role to accused---Evidence of said witnesses was corroborated by medical evidence---Said witnesses were cross-examined by defence counsel, which could not shake their evidence---All witnesses were unanimous on major aspects of the case---Counsel for accused could not point out any defect in the evidence---Prosecution having proved case against accused, they had rightly been convicted and sentenced by the Trial Court.

(b) Probation of Offenders Ordinance (XLV of 1960)---

----S. 5--Penal Code (XLV of 1860), S.337-A(i) & (iii)---Sending accused on probation---Counsel for accused had stated that accused could be sent on probation---Assistant Advocate-General had no objection if accused were sent on probation---Accused, in the present case, had not planned to commit the offence, but altercation took place between the parties at the spur of moment and incident took place in the heat of moment---Accused were first offenders---Out of them one was an old and infirm person---If accused were sent to jail, they would mix up with hardened criminals and there was likelihood of developing bad habits by accused---If accused would remain on probation, they would have to execute the bond by which they would not commit offence and create disturbances, but would keep peace---Not only complainant would be safe in the hands of accused, but society would also be benefited---Present was a fit case where accused could be sent on probation as provided under S.5 of Probation of Offenders Ordinance, 1960---Accused were sent on probation accordingly.

Ghulam Sarwar Korai for Appellants.

Abul Ghafoor Mirani for the Complainant.

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

Date of hearing: 1st September, 2006.

PCRLJ 2007 KARACHI HIGH COURT SINDH 139 #

2007 P Cr. L J 139

[Karachi]

Before Sarmad Jalal Osmany and Ali Sain Dino Metlo, JJ

Sayed GHULAM MUSTAFA----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.596 of 2006, decided on 30th August, 2006.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 25---Bail, grant of---Accused was apprehended in the town in broad-daylight, but no person from public had been cited as witness---Provisions of S.25 of Control of Narcotic Substances Act, 1997, did not relieve investigators of their duty of conducting investigation in a fair and transparent manner and producing the best of available evidence---Court of law had to apply its independent mind to the facts and circumstances of each case and was not bound to follow the ipsi dixit of police---Version of Assistant Sub-Inspector of Police, which was not supported by any person from public, stood falsified by the subsequent report of his own superior officer i.e. Deputy Superintendent of Police who, on enquiry, found that accused had been falsely implicated---Assistant Advocate-General, in, such circumstances, had rightly conceded that case was fit for the grant of bail---In absence of reasonable grounds for believing accused guilty of offence, accused was admitted to bail.

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

----Ss. 156 & 551---Penal Code (XLV of 1860), S.194---Investigation of case---Scope---Trial Court turned down subsequent report of Deputy Superintendent of Police on the ground that after the conduct of an investigation by or under the authority of an Officer-in-charge of a police station, there was no provision in the Code for conduct of any further investigation or enquiry by any superior Police Officer---Validity---View taken by the Trial Court was not correct as there was no end of investigation, it could continue even after execution of sentence, otherwise it would not be possible to punish a perjurer under second part of S.194, P.P.C. on basis of whose evidence some innocent person could have been executed---Superior Officer of Police by virtue of S.551, Cr.P.C., enjoyed powers of Officer-in-charge of a Police Station throughout the local area to which they were appointed---Court though was not bound by subsequent report of investigation and was not bound by the first one either, but, it would not mean that reports were not to be taken into consideration at all---Before the recording of evidence, material available before a Court, was mainly that which was collected by the Investigating Agency---Subsequent reports of investigation were to be looked and taken into consideration in the same way as was the first ones.

----Ss. 497 & 561-A---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of---Quashing of proceedings---Only allegation against co-accused was that he having a shopping bag in his hand was with the accused and had run away on seeing the police---Nothing was available to show that there was any incriminating article in his shopping bag which he was shown to have taken away with him---No evidence was on record to connect co-accused with Charas recovered from the main accused---Merely from his conduct of running away it could not be assumed that he was having Charas or any other narcotic substance in his possession---Trial Court issued warrants against the co-accused and kept him in prison without application of mind---Request of co-accused for acquittal under S.265-K, Cr.P.C. was turned down---Such being a glaring case of abuse of police powers and Court's process, proceedings against the co-accused were quashed and a notice of warning was also issued to investigation to refrain from arraigning people without collecting evidence against them.

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

----S. 403---Double jeopardy---Person once tried and acquitted for lack of sufficient evidence against him could not be tried again even though sufficient evidence could have been subsequently found against him---Trial being both jeopardy as well as ordeal, utmost care should be taken so that nobody was subjected to it without collecting sufficient evidence against him---Evidence could be regarded as sufficient when it, if not challenged or rebutted, was sufficient for recording conviction---In absence of sufficient evidence, trial would be an exercise in futility, which Courts already overburdened, could not afford to undertake.

Farooq H. Naik along with Adnan Karim for Applicant.

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

PCRLJ 2007 KARACHI HIGH COURT SINDH 149 #

2007 P Cr. L J 149

[Karachi]

Before Muhammad Moosa K. Leghari, J

QAMAR MUKHTIAR KHAN----Applicant

Versus

THE STATE----Respondent

Criminal Revision Application No.99 of 2006, decided on 4th October, 2006.

(a) Jurisdiction---

----Jurisdiction cannot be conferred by consent or acquiescence of parties---Jurisdiction is conferred either by the Constitution or law.

Moulvi Aziz-ur-Rehman v. Ahmed Khan and others 2004 SCMR 1622 rel.

(b) Bail---

----Orders passed on bail applications are tentative in nature and deserve a tentative assessment of evidence proposed to be produced by prosecution and plea raised by defence before Trial Court at the time of trial.

Farid v. Ghulam Hussain and others 1969 SCMR 924; Muhammad Aslam v. The State PLD 1967 SC 539; Khalid Javed Gillan v. The State PLD 1978 SC 256 and Said Akbar and another v. Gul Akbar and another 1996 SCMR 931 rel.

----Ss. 497, 498, 435, 439, 493 & 561-A---Pre-arrest bail, pendency of---Deeper appreciation of evidence---Plea of alibi---Proof---Procedure---Summoning witness with record---Role of public prosecutor---Accused sought pre-arrest bail on the plea of alibi, as he was under treatment of two doctors---During the pendency of bail application accused sought summoning of both the doctors---Trial Court allowed the application with the consent of parties but subsequently the order was recalled as one of the two doctors was a prosecution witness---Validity---Deciding application for bail did not call for elaborate sifting of evidence---For the purpose of tentative assessment of evidence in order to satisfy itself about correctness of documents produced by accused, Trial Court could have summoned and perused relevant record, if it was expedient in the circumstances of the case---Trial Court went ahead and proceeded to examine a doctor, who was said to have treated the accused---Impropriety did not stop there but the doctor who was summoned was offered to be cross-examined by both the parties---Such exercise by Trial Court was in excess of tentative assessment of evidence and beyond contemplation of S.497 Cr.P.C.---In entire proceedings, role of prosecutor appeared to have been diminished and was conspicuously invisible---Public Prosecutor, under S. 493, Cr.P.C. was supposed to appear and plead in all Courts---Law provided that if any private person instructed a pleader to prosecute in any Court on his behalf, even then public prosecutor would conduct prosecution and privately engaged pleader would act in Court under his direction---Orders relating to summoning of doctors were passed by Trial Court without seeking meaningful assistance of prosecutor which resulted in passing of two consecutive uncalled for improper, perverse and illegal orders, which resulted in unreasonable prolongation of bail application and caused multiplicity of litigation---Orders passed by Trial Court regarding summoning of two doctors was set aside---Revision was allowed accordingly.

Painda Gul and another v. The State and another 1987 SCMR 886; Mst. Baboo Jana v. The State 1990 PCr.LJ 326 and Asif Ali Zardari v. The State NLR 1999 Criminal 358 ref.

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

----Ss. 497, 498, 369 & 540---Pre-arrest bail---Material witness, summoning of---On application of accused Trial Court, under S.540 Cr.P.C., summoned a witness, during pendency of pre-arrest bail---Validity---Trial Court possessed power of recalling and re-examining witnesses and recording additional evidence, if it had appeared to the Court essential for just decision of the case---Such power was meant to be exercised for deciding a case and could not be exercised at bail stage for the reason that a bail application could not be equated with a trial of criminal case---Order passed on bail application, in circumstances, would not be a decision or judgment as contemplated under S.369 Cr.P.C.---Order passed by Trial Court was set aside in circumstances.

Gulzar Hussain Shah v. Ghulam Murtaza and 4 others PLD 1970 SC 335 and Amiruddin v. The State and another PLD 1977 SC 602 rel.

M.A. Kazi for Applicant.

Ahmed Ali Shah for the Complainant.

Munir Ahmed Khawaja for the State.

Date of hearing: 20th September, 2006.

PCRLJ 2007 KARACHI HIGH COURT SINDH 165 #

2007 P Cr. L J 165

[Karachi]

Before Rahmat Hussain Jafferi, J

IRSHAD ALI----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.6 of 2005, decided on 11th January, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Bail, grant of---Accused had been involved in the case for offence punishable under Art.4 of Prohibition (Enforcement of Hadd) Order, 1979, which carried punishment of two years only---State counsel had stated that he had not received report of Chemical Analyzer---Five months had passed, but report had not been sent to prosecution enabling it to proceed with the case---Case had already been delayed for about five months and it was not known as to when Chemical Analyzer's report would be received by prosecution and case would be posted for regular trial---Accused had already remained in jail for a period of five months for an offence carrying punishment of two years---Case being fit where accused could be released on bail, he was admitted to bail'.

Nisar Ahmed G. Abro for Applicant.

Mushtaque Ahmed Kourejo State Counsel.

PCRLJ 2007 KARACHI HIGH COURT SINDH 233 #

2007 P Cr. L J 233

[Karachi]

Before Mrs. Qaiser Iqbal, J

NADEEM AHMED KHAN and others----Applicants

Versus

THE STATE----Respondent

Special Criminal Revision No.7 of 2006, decided on 22nd November, 2006.

(a) Criminal trial---

----Procedural requirements of criminal law---Trial Court in the present case had neglected to implement its own order for the production of record and without any legal cause, had reviewed its order without any justification---Procedural requirements of the criminal law were not mere formality, in all fairness, care must be taken to ensure the liberty of the subject for due dispensation of justice.

Abdus Sattar Mola v. The Crown PLD 1953 FC 145; Government of Sindh v. Fahad Naseem 2002 PCr.LJ 1765 and Hakam Deen v. The State PLD 2006 SC (AJ&K) 43 rel.

(b) Words and phrases---

----"Document", defined and explained.

----S. 265-C---Constitution of Pakistan (1973), Art.4---Supply of statements and documents to accused---Accused must be supplied the copies of all documents prior to commencement of the trial and framing the charge---Proposition would not change even if accused had himself conceded to such omission---Omission to comply with the provision of S.265-C, Cr.P.C., would vitiate the whole trial---Accused without having recourse to the record, would not be in a position to set up his defence---Under Art.4 of the Constitution, rights of individual be dealt with in accordance with law---Requirement of S.265-C, Cr.P.C. must be complied with before setting the case at trial---High Court directed the Trial Court that compliance of S.265-C, Cr.P.C. be made in its letter and spirit before framing the charge.

M.A. Kazi for Applicants.

Mehmood A. Rizvi, D.A.-G. for the State.

PCRLJ 2007 KARACHI HIGH COURT SINDH 276 #

2007 P Cr. L J 276

[Karachi]

Before Rahmat Hussain Jafferi and Nadeem Azhar Siddiqi, JJ

Raja MUSHTAQUE alias RAJA YOUNIS----Appellant

Versus

THE STATE----Respondent

Criminal Jail Appeal No.D-29 and Confirmation Case No.D-6 of 2000, heard on 10th August, 2006.

Penal Code (XLV of 1860)---

----Ss. 302 & 353---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Appreciation of evidence---Complainant had fully implicated accused in his deposition---Name of accused was mentioned in F.I.R. with specific role---Defence counsel could not shake evidence of complainant during cross-examination---No motive was attributed to prosecution witnesses to depose against accused---Prosecution witnesses appeared to be credible as nothing adverse was brought on record to discredit their evidence---Accused was known to witnesses who had confirmed that accused was the person who had fired from the vehicle---Such fact had cleared the confusion regarding the name of accused---Medical evidence had fully supported the case of prosecution, recovery of the empty from the place of Wardat and dead-body had also supported the case of prosecution---Medical evidence had no conflict with the ocular evidence---Eye-witnesses and other witnesses had no enmity and no reason had been brought on record for falsely implicating accused in the murder case---Alleged confessional statement of accused, however, could not be used against him as same was not put to accused while recording his statement under S.342, Cr.P.C.---Prosecution having proved its case against accused beyond any reasonable doubt, appeal of accused against judgment of the Trial Court whereby accused was convicted and sentenced, was dismissed.

Sarfraz A. Akhund for Appellant.

Ilabibur Rehman Shaikh, A.A.-G. for the State.

Date of hearing: 10th August, 2006.

PCRLJ 2007 KARACHI HIGH COURT SINDH 283 #

2007 P Cr. L J 283

[Karachi]

Before Rahmat Hussain Jafferi and Nadeem Azhar Siddiqi, JJ

Raja MUSHTAQUE alias Raja YOUNIS----Appellant

Versus

THE STATE----Respondent

Criminal Jail Appeal No.30 and Confirmation Case No.7 of 2000, decided on 10th August, 2006.

Penal Code (XLV of 1860)---

----Ss. 302, 307, 381 & 454---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Appreciation of evidence---Complainant who had fully implicated accused, was cross-examined, but he was not shaken during cross-examination---Complainant who, had no motive against accused, appeared to be credible as nothing adverse was brought on record to discredit his evidence---Prosecution witness had fully supported evidence of complainant---Prosecution witness also appeared to be reliable as he was not shaken during cross-examination and nothing was brought on record to the effect that witness deposed falsely due to some ulterior motives or mala fide intention---Evidence of complainant and prosecution witness found support from the recovery of four empties of Klashnikov and from the medical evidence---Conviction of accused could be based on said reliable and confidence-inspiring evidence---Medical evidence had fully supported case of prosecution---Circumstantial evidence like recoveries of empties and dead bodies, had also supported case of prosecution---Complainant and prosecution witnesses had also identified accused in the identification test---Motive for committing crime as was mentioned in F.I.R. was established beyond doubt---F.I.R. which was promptly lodged, contained necessary details---Prosecution having proved case beyond any doubt, appeal against conviction and sentence awarded to accused by the Trial Court, was dismissed.

Sarfraz A. Akhund for Appellant.

Habibur Rehman Shaikh, A.A.-G. for the State.

Date of hearing: 10th August, 2006.

PCRLJ 2007 KARACHI HIGH COURT SINDH 292 #

2007 P Cr. L J 292

[Karachi]

Before Nadeem Azhar Siddiqi, J

SHAHZADO and 2 others----Applicants

Versus

THE STATE----Respondent

Criminal Miscellaneous Application No.S-65 of 2005, decided on 1st November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.392 & 394---Application against order passed by Judicial Magistrate---Applicants having been nominated with specific role, Magistrate had rightly ordered for submission of challan---Police opinion was not binding upon the Court and Judicial Magistrate could take cognizance even in case of negative report and could issue process against persons who appeared to him to be concerned in the commission of offence---Regarding filing of revision before the Sessions Judge, it was sufficient to say that order passed by Judicial Magistrate was administrative in nature and was not amenable to revisional jurisdiction---In absence of any illegality or irregularity in the order passed by Magistrate same could not be interfered with.

Bahadur and another v. The State and another PLD 1985 SC 62 rel.

Pritam Dass Marwari for Applicants.

Habibur Rehman Shaikh, A.A.-G. for the State.

PCRLJ 2007 KARACHI HIGH COURT SINDH 299 #

2007 P Cr. L J 299

[Karachi]

Before Nadeem Azhar Siddiqi, J

AZIZ and 2 others----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.S-40 of 2006, decided on 14th March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-A(i), (ii), F-(i), (v), 148 & 149---Bail, grant of---Unexplained delay in lodging F.I.R. though itself was no ground for grant of bail, but such delay could be considered with other grounds---Statements of prosecution witnesses were also recorded after unexplained delay---Medical report showed that all the injuries were punishable with five years or less and ordinarily bail was to be granted as a rule in such-like cases---Court, though could decline bail in recognized exceptional circumstances, but the case did not fall within such exceptions---Trial Court should be careful in dealing with such type of cases and should not reject the bail only at its whims without taking into consideration the settled principles for refusal of bail in the matter punishable with imprisonment of less than 10 years---Accused having made out case for grant of hail, he was admitted to bail.

Tariq Bashir v. The State PLD 1995 SC 34 ref. Deedar Ali Bhangwar for Applicants.

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

PCRLJ 2007 KARACHI HIGH COURT SINDH 306 #

2007 P Cr. L J 306

[Karachi]

Before Rahmat Hussain Jafferi, J

ZULFIQAR ABBAS----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.S-110 of 1998, decided on 16th September, 2006.

(a) Probation of Offenders Ordinance (XLV of 1960)

----Ss. 4 & 5---Penal Code (XLV of 1860), S.220---Appreciation of evidence---Sending accused, a Police Officer on probation---Statement of complainant with regard to his illegal detention went unchallenged as no cross-examination was conducted by defence counsel to deny said fact---Statement of complainant had been fully supported and corroborated by prosecution witnesses---Evidence available on record had established beyond any shadow of doubt that accused had wrongfully confined complainant and his said action had come within the ambit of S.220, P.P.C.---Trial Court, in circumstances had rightly convicted and sentenced the accused---Counsel for accused had stated that accused who was a police officer, was first offender; and if he was convicted he would lose his job; that accused having repented over his action, he could be sent on probation instead of sending him to jail to serve out sentence where he might spoil his life and future by associating with hardened criminals---Validity---One of the concepts of punishment was reformation---Present conditions of jails were such where once a person was sent, then he may come out after serving out sentence as a hardened criminal---Instead of becoming a helping hand to the society he would become a cause of concern to it---Option between reformation and punishment was an onerous one and it required a judicious application of mind by the person or Authority dealing with such offender---Greatest virtue of the law was its flexibility and its adaptability, it must change from time to time so that it answers the demand of the people, the need of the hour and order of the day---Present case being fit where accused could be sent on probation, he was sent on probation instead of sending him to jail at once.

(b) Probation of Offenders Ordinance (XLV of 1960)---

---Ss. 4, 5 & 11---Object of Probation of Offenders Ordinance, 1960---Sending accused on probation---One of the systems, which played a very important role in the rehabilitation and reformation of offender, was probation system---Probation of Offenders Ordinance, 1960 was promulgated under which benefit of probation had been made available to the offenders---Said Ordinance was enacted to provide for the release of offenders on probation or admonition and for matters connected therewith---Reformation and rehabilitation, were the keynote- of Probation of Offenders Ordinance, 1960 and its object was to prevent turning of offenders into criminals by their association with hardened criminals within the walls of the prisons---Probation of Offenders Ordinance, 1960 empowered the Court to release on probation an offender found guilty of having committed an offence not punishable with death or imprisonment for life or for the description mentioned in Ss.4 & 5 of said Ordinance---Sole intention of S.4 of Probation of Offenders Ordinance, 1960 was that accused should be given a chance of reformation without even subjecting him to probation system---Reformation and rehabilitation of offender would be incomplete unless he could live a life free from stigma and stigmatization was bound to occur to offender once a Court convicted him and chances of survival through earning, were jeopardized largely---Section 11 of Probation of Offenders Ordinance, 1960, would give effect to rehabilitative concern by removing disqualification attached to conviction of an offender who had been released under S.4 or S.5 of the Ordinance.

Nizamuddin Baloch for Appellant.

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

Date of hearing: 11th September, 2006.

PCRLJ 2007 KARACHI HIGH COURT SINDH 318 #

2007 P Cr. L J 318

[Karachi]

Before Rahmat Hussain Jafferi and Sajjad Ali Shah, JJ

SAEED AHMED----Appellant

Versus

THE STATE----Respondent

Criminal Appeals Nos.D-65 and D-49 of 2004, decided on 5th September, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7(a)---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Appreciation of evidence---Benefit of doubt---Recorded serious enmity existed between the -parties and all three eye-witnesses were closely related to each other---Ocular evidence, in circumstances was interested, hostile and inimical to accused and before relying upon evidence of such witnesses, their evidence had to be corroborated from other piece of evidence---Statements of two prosecution witnesses were recorded after delay of about 17 days and prosecution did not furnish any explanation for such delay---Stand taken by both said witnesses had been belied by evidence available on record and conduct of said witnesses appeared to be abnormal and unnatural and their such conduct, had created doubt about their presence at the place and time of incident---Evidence of recovery was in direct conflict with evidence of another prosecution witness---Record of investigation appeared to have been tampered with and changed so as to fit in the circumstances of the case and it appeared that investigation was changed for the purpose of preparing false record and to manipulate evidence so as to fit in the circumstances of the case---Evidence of other two prosecution witnesses having not inspired confidence, no implicit reliance, in circumstances, could be placed on such type of evidence---Prosecution having failed to prove the oral evidence and recoveries beyond any reasonable doubt, case of prosecution was highly doubtful---Prosecution having failed to prove case against accused, appeal of accused against his conviction and sentence, was allowed.

Nizamuddin Baloch for Appellant.

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

Date of hearing: 5th September, 2006.

PCRLJ 2007 KARACHI HIGH COURT SINDH 330 #

2007 P Cr. L J 330

[Karachi]

Before Rahmat Hussain Jafferi, J

MOULA BUX and 5 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.S-11 of 2005, decided on 22nd August, 2006.

Penal Code (XLV of 1860)---

----S. 337-F(i) & (iii)---Criminal Procedure Code (V of 1898), S.345(5) & (6)-.--Appreciation of evidence---Compromise between parties---When appeal filed by accused against order of conviction and sentence passed by the Trial Court against him was fixed for judgment, applications under S.345(5)(6), Cr.P.C. for permission to grant leave to compromise the matter were moved both by complainant and accused---Said applications were accepted and accused were acquitted from the charge of causing injuries to injured--Even otherwise evidence of other witnesses was neither supported nor corroborated by evidence of injured---Prosecution having failed to prove that accused were responsible for causing injuries to injured, conviction and sentence awarded to accused for causing injuries to injured, were set aside.

Asghar Ali v. The State 1992 SCMR 2088 ref.

S. Mushtaque Hussain Shah for Appellants.

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

Shaikh Amanullah for the Complainant.

Date of hearing: 22nd August, 2006.

PCRLJ 2007 KARACHI HIGH COURT SINDH 340 #

2007 P Cr. L J 340

[Karachi]

Before Rahmat Hussain Jafferi and Mrs. Yasmin Abbasey, JJ

MUHAMMAD ASHRAF KHAN----Appellant

Versus

THE STATE----Respondent

Special Anti-Terrorism Appeals Nos.53, 54 and 55 of 2003, decided on 10th November, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 232, 236, 237, 238(2) & 265-D---Penal Code (XLV of 1860), Ss.120-B & 324---Anti-Terrorism Act (XXVII of 1997), Ss.7(b) & 25---Appeal against judgment of Anti-Terrorism Court---Framing of charges---Appellants/accused had confessed their guilt before a Magistrate---Facts of the case and perusal of said confession, had revealed that crime alleged against accused was to commit the, murder, but the charge was framed for conspiracy to commit attempt to murder---Charge, so framed, in circumstances was not in consonance with the facts of the case and was against the spirit of law---Conviction was also awarded to accused for said offence treating the crime as conspiracy to commit the offence of attempt to murder---Case should have been proceeded for said offence by framing the charge of conspiracy to commit murder---Trial Court did not appreciate and examine prosecution story as mentioned in police report, documents and statements filed by the prosecution---Case having proceeded on wrong facts and charge, the Trial Court had violated provisions of S.265-D, Cr.P.C.---Under S.238(2), Cr.P.C., Court could convict an accused for minor offence than the offence charged---No provision was available in Cr.P.C. empowering the Court to convict accused for offence greater than offence charged---Provisions of Ss.236 & 237, Cr.P.C., were not attracted, but provisions of S.232, Cr.P.C., were attracted in the case---Proceedings of the case from the stage of charge, were illegal as it had caused prejudice to appellants/accused resulting a failure of justice which could not be cured under S.537, Cr.P.C.---Trial having been vitiated, case was remanded to the Trial Court for retrial from the stage of charge.

Abdul Waheed Katpar for Appellants.

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

Date of hearing: 10th November, 2006.

PCRLJ 2007 KARACHI HIGH COURT SINDH 345 #

2007 P Cr. L J 345

[Karachi]

Before Nadeem Azhar Siddiqi, J

FAROOQUE AHMED----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-412 of 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.412---Bail, grant of---Further inquiry---Allegation against accused was that he was found in possession of the car and that accused along with four other accomplices used to rob cars---While registering a case under S.412, P.P.C., it was necessary to show not only that accused was in possession of the robbed property, but further that he knew or had reason to believe that property had been transferred by commission of the dacoity---Offence under S.412, P.P.C. was much more serious than offence under S.411, P.P.C.---Where there was no evidence to show that accused had knowledge that property in possession was subject-matter of the dacoity, he could not be tried and convicted under S.412, P.P.C.---Two F.I.Rs. were lodged against accused and he got bail in one F.I.R.---Accused was not named in said two F.I.Rs. and no material was available on record except the recovery of car to show that accused knew or had reason to believe .that property held by him had been transferred by commission of dacoity---In absence of any such material, a case of further inquiry had been made out against accused and it had to be decided at the trial whether alleged offence committed by accused was punishable under S.412, P.P.C. or Ss.411 & 414, P.P.C.---No reasonable grounds were available, in circumstances for believing that accused had committed an offence which fell under prohibitory clause of S.497, Cr.P.C.--Accused was admitted to bail, in circumstances.

Ghulam Shabbir Dayo for Applicant.

Muhammad Iqbal Memon for the State.

PCRLJ 2007 KARACHI HIGH COURT SINDH 352 #

2007 P Cr. L J 352

[Karachi]

Before Muhammad Moosa K. Leghari, J

FAKIR BABAR KHAN----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-240 of 2006, decided on 5th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.302---Pre-arrest bail, confirmation of---Enmity between the parties wad admitted---One empty shell was secured from the place of Wardat and deceased sustained single injury---According to F.I.R. specific role of straight firing at the deceased had been attributed to co-accused---Probable presumption of motive of implication on the part of prosecution was obviously evident---Deeper appreciation of evidence was not admissible at the bail stage---Plea of alibi which seemed to have been raised at the very initial stage, could not be lightly brushed aside--That had to be properly appreciated and thrashed out at the trial---Name of accused had been placed in Column No.II of the charge sheet, which had made case of accused that of further inquiry---Interim bail granted to accused was confirmed, in circumstances.

Hidayatullah Abbasi and Aftab Ahmed Warriach for Applicant.

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

Muhammad Hashim Memon for the Complainant.

PCRLJ 2007 KARACHI HIGH COURT SINDH 359 #

2007 P Cr. L J 359

[Karachi]

Before Mrs. Qaiser Iqbal, J

MUHAMMAD ZIA----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No. 143 of 2005, 'decided on 21st November, 2006.

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

----S. 164---Confession---Retracted extra-judicial confession---Procedural defect in recording retracted judicial or extra-judicial confession---Proposition that a retracted extra-judicial confession could. not corroborate a retracted judicial confession, could not also be assailed where corroboration was found necessary, for that would amount to utilizing one piece of tainted evidence to corroborate another piece of tainted evidence---Court must look for strict compliance of S.164(3), Cr.P.C. before proceeding to determine the voluntary character of a confessional statement---Notwithstanding procedural defect in recording the retracted judicial or extra-judicial confession, if' same was found to be true, voluntary and confidence-inspiring, could safely be made basis of conviction.

State v. Minhun alias Gul Hassan PLD 1964 SC 813; Shahzado v. State PLD 2005 SC 477 and Muhammad Anwar Chaudhry v. Muhammad Majeed PLD 1964 SC 813 rel.

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

----S. 302/34---Appreciation of evidence---Benefit of doubt---Alleged confessional statement of accused which was recorded after seven days of his arrest, could not he relied upon---Even otherwise original confessional statement of accused was not available nor any explanation had been furnished from any quarter as to how original record had been substituted with true copies, which had not been exhibited---Investigating Agency did not recover any incriminating article from the possession of either of the accused---Material questions were not put to accused in his statement recorded under S.342, Cr.P.C.---Confessional statement, the basis of the sentence awarded to accused, did not ring true because accused had implicated co-accused in the commission of crime, whereas co-accused had implicated accused for committing murder of deceased---Case being of circumstantial evidence, in absence of direct evidence, each chain was required to be connected with other chain---Prosecution had failed to prove the charge against accused on the basis of evidence, free from all inferences and doubts---Motive was shrouded in mystery and could not be used as a corroborative piece of exculpatory confession---If only one circumstance would create doubt, that would be enough to extend benefit of doubt in favour of accused---Accused was acquitted and released extending him benefit of doubt.

Abid Hussain Shah v. State 1983 PCr.LJ 882; Tariq Pervaiz v. State 1992 PCr.LJ 995; Muhammad Bakhsh v. State PLD 1956 SC (Pakistan) 420 and Gulab Khan and another v. State PLD 1971 Kar. 299 rel.

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

----S. 342---Examination of accused---Not a mere formality---Object of examination of accused under S.342, Cr.P.C. was to explain the circumstances which could lend to incriminate or adversely affect him, therefore, such examination of accused was not a mere formality.

Muhammad Ayub v. State 2000 PCr.LJ 527; Fazal Elahi v. State 2006 PCr.LJ 390 and S.A.K. Rehmani v. State 2005 SCMR 364 ref.

Muhammad Ashraf Kazi for Appellant.

Suhail Jabbar for the State.

Dates of hearing: 1st and 10th November, 2006.

PCRLJ 2007 KARACHI HIGH COURT SINDH 372 #

2007 P Cr. L J 372

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

AHMED ALI----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-544 and M.A. No.1493 of 2006, decided on 15th November, 2006.

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

----Ss. 154 & 200--Direct complaint and State case---Principles---If a person lodged an F.I.R. and was not satisfied with the contents of F.I.R. or the investigation, he was at liberty to file direct complaint---If process was issued in the direct complaint, then State ease was to be kept in abeyance and direct complaint would proceed---State case would be disposed of in terms of the decision on direct complaint.

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

----S. 497---Penal Code (XLV of 1860), Ss.324, 337-F(ii), 504 & 34---Bail, grant of---Present case was one, but there were two proceedings, one in State case and the other on direct complaint---Accused was on bail in the proceedings instituted on direct complaint as the Trial Court deemed it fit to issue bailable warrants and no non-bailable warrants was issued---Trial Court had blown hot and cold at the same time---Accused was on bail in the direct complaint, wherein commission of offence under S.324, P.P.C., was alleged, while on the same set of facts bail had been declined to him in the State case, where commission of offence under S.324, P.P.C. was not alleged on the ground that S.324, P.P.C. was not attracted---State counsel was not able to reconcile the two orders passed by the same Court, one in the direct complaint and other in the State case---Since accused was on bail in the direct complaint, which had to proceed, there was no justification for declining bail to accused in a case which was to be kept in abeyance---Accused was admitted to bail, in circumstances.

Sarfraz Khan Jatoi for Applicant.

Muhammad Ismail Bhutto, State Counsel.

Gulshan R. Dayo for the Complainant.

PCRLJ 2007 KARACHI HIGH COURT SINDH 378 #

2007 P Cr. L J 378

[Karachi]

Before Rahmat Hussain Jafferi and Yasmin Abbasi, JJ

Khawaja NASEER AHMED----Petitioner

Versus

THE STATE through National Accountability Bureau and another----Respondents

Constitution Petition No.D-1878 and Miscellaneous Application No.7480 of 2006, decided on 7th November, 2006.

Criminal Procedure Code (V of 1898)---

----S.540---National Accountability Ordinance (XVIII of 1999), Ss.10 & 31-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application for examining witnesses---Prosecution having concluded evidence on main charge under S.10 of National Accountability Ordinance, 1999, Special Prosecutor moved application under S.540, Cr.P.C. for examining five witnesses to prove charge under S.31-A of said Ordinance---Said application having been allowed under impugned order, petitioner in his constitutional petition had prayed for setting aside the order---Section 540, Cr.P.C. which was attracted at any stage of proceeding, was divided into two parts, first part was discretionary and second part was mandatory---If the Trial Court found that evidence of any witness was essential to the just decision of the case, then the Trial Court was bound to call said witness---In the present case prosecution wanted to examine five witnesses---Evidence of said witnesses was to be recorded to prove the charge under S.31-A of National Accountability Ordinance, 1999---Statement of four witnesses out of five would definitely help the Trial Court to arrive at conclusion, whether charge was proved or otherwise---Evidence of said four witnesses was essential to the just decision of the case---Trial Court, in circumstances was bound to examine said witnesses and it could not be held that prosecution wanted to fill the lacuna in the case---Impugned order did not suffer from any illegality or irregularity in respect of examination of said witnesses except examination of fifth witness, whose evidence, was not necessary---Impugned order was maintained accordingly.

Raja Qureshi for Petitioner.

Shafaat Nabi, DPGA (NAB) for Respondent.

PCRLJ 2007 KARACHI HIGH COURT SINDH 456 #

2007 P Cr. L J 456

[Karachi]

Before Amir Hani Muslim, J

SULTAN----Applicant

Versus

THE STATE----Respondent

Criminal Revision Application No.56 of 2003, decided on 13th September, 2004.

Criminal Procedure Code (V of 1898)---

----S. 514---Forfeiture of surety bond---Death of surety---Effect---Provisions of subsection (6) of S.514, Cr.P.C. had made it mandatory that if the surety died prior to forfeiture of the bond, he would be discharged from the liabilities in respect of the bond--Impugned order whereby surety bond of petitioner was forfeited, did not advert to either provision of subsection (6) of S. 514, Cr. P. C. or the factum of death of surety---Trial Court had the notice of the fact that surety had died prior to absconsion of accused for whom he stood surety---Proceedings taken under S.514, Cr.P.C. by the Trial Court, in circumstances was outside the purview of law---Impugned order passed by the Trial Court, was set aside with direction that original surety documents be returned to legal representatives of the surety on proper verification.

Ishrat Ali Lohar for Applicant.

Muhammad Azeem Panhwar for the State.

PCRLJ 2007 KARACHI HIGH COURT SINDH 462 #

2007 P Cr. L J 462

[Karachi]

Before Muhammad Moosa K. Leghari and Maqbool Baqar, JJ

DESSER MAL----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.213 of 2003, decided on 2nd November, 2006.

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

----S. 9(c)---Appreciation of evidence---Accused allegedly was arrested by Rangers on account of his enmity with a Ranger's Inspector, from whom accused got a house vacated on account of ill 'repute of said Inspector---Such fact had created doubt regarding veracity of prosecution story---Opium allegedly recovered during the raid, was not sealed in any basket, but was lying open on a table---Prosecution claimed that two separate samples weighing 500 grams each were sent to Chemical Examiner, but Chemical Examiner's report had revealed that weight of said two samples was 355 grams and 360 grams respectively---Samples of narcotics were sent to Chemical Examiner after a delay of five days, which delay had not been explained by prosecution---F.I.R. was not recorded at the time it was claimed by prosecution---Prosecution having failed to prove its case against accused beyond reasonable doubt, impugned conviction and sentence awarded by the Trial Court against accused, was set aside.

Syed Madad Ally Shah for Appellant.

Muhammad Iqbal Kalhoro, Special Public Prosecutor for the State.

Dates of hearing: 1st and 2nd November, 2006.

PCRLJ 2007 KARACHI HIGH COURT SINDH 477 #

2007 P Cr. L J 477

[Karachi]

Before Rehmat Hussain Jafferi and Muneeb Ahmed Khan, JJ

MUHAMMAD HAROON GABA----Applicant

Versus

THE STATE----Respondent

Special Criminal Bail Application No.49 of 2006, decided on 27th December, 2006.

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

----S. 497---Customs Act (IV of 1969), Ss.2(s), 156(1)(8), (89) & 185(F)---Constitution of Pakistan (1973), Art.199---Bail, refusal of---Conversion of bail application into constitutional petition---Complainant checked baggage of accused, but no incriminating matter was secured, however, from personal search of accused slabs of gold weighing 800 Tolas and golden jewelry weighing 4995 grams were secured, which were tied around various parts of his body---Required notice was issued to accused and search was conducted in presence of two witnesses---Action of accused had come within the definition of "Smuggling" as defined in S.2(s) of Customs Act, 1969---When in violation of prohibition on or restriction on importation gold secretly and clandestinely without payment of duty, was brought in the country or was brought to leave the airport, process of importation was complete---Offence against accused, in circumstances fell under S.156(1)(8) of Customs Act, 1969 which was punishable for 14 years' R.I. and not under S.156(1)(89) of the Customs Act, 1969 providing punishment of 5 years, as claimed by accused---Accused could not prove that smuggled gold was owned by some other person and that he was simply a carrier---Case against accused fell under prohibitory clause of S.497, Cr.P.C.---Accused, in circumstances, was not entitled to concession of bail---Bail application which was converted into constitutional petition, was dismissed, in circumstances.

Asghar Ali v. State 1999 SCMR 654; Muhammad Imran v. State 1995 PCr.LJ 858; Fateh Ali v. State 1993 PCr.LJ 1124; Muhammad Rafi v. State 1997 PCr.LJ 1126; Muhammad Jamil v. State 1993 PCr.LJ 2144 and Asghar Ali v. State 2003 PSC 893 ref.

(b) Customs Act (IV of 1969)---

----S. 2(s)---"Smuggling", meaning and scope---`Smuggling' was nothing, but importation or exportation of goods, secretly and clandestinely without payment of duty--Smuggling also would include an attempt, abetment or connivance for so bringing in or taking out goods as mentioned in S.2(s) of Customs Act, 1969.

Z.K. Jatoi for Applicant.

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

Date of hearing: 20th December, 2006.

PCRLJ 2007 KARACHI HIGH COURT SINDH 493 #

2007 P Cr. L J 493

[Karachi]

Before Rahmat Hussain Jafferi and Muneeb Ahmed Khan, JJ

THE STATE----Applicant

Versus

KASHIF ALI----Respondent

Criminal Miscellaneous Application No.140 and Special Case No.15 of 2006, decided on 27th December, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8, 9 & 25--Bail, cancellation of---Bail was granted to accused-on the ground that prosecution had failed to arrange private witnesses to act as Mashirs---Validity---Spy information was received at odd hours of night (at 4.30 a.m.) when private witnesses could not have been arranged---Even otherwise provisions of S.103, Cr.P.C. were not attracted when recovery was made at the Airports and by virtue of S.25 of Control of Narcotic Substances Act, 1997 provisions, of S.103, Cr.P.C. were not applicable in cases of Control of Narcotic Substances Act, 1997---Private persons do not come forward to become witnesses in such type of cases due to various reasons and particularly at the Airports---Deeper appreciation of evidence was not permissible in bail matter and points could be properly thrashed out at the time of trial---Prosecution had sufficient evidence connecting accused with the commission of crime---Accused had remained in jail for a period of only two months---Reasonable grounds being for believing that accused was involved in the case, the Trial Court was not justified in granting bail to accused---Impugned order was set aside and application for cancellation of bail, was allowed.

State v. Muhammad Amin 1999 SCMR 1367 and Afzaal Ahmed v. State 2003 SCMR 573 ref.

Syed Ashfaq Hussain Rizvi Special Prosecutor, A.N.F. for the State.

Mahmood A. Qureshi for Respondent.

Date of hearing: 20th December, 2006.

PCRLJ 2007 KARACHI HIGH COURT SINDH 502 #

2007 P Cr. L J 502

[Karachi]

Before Ali Sain Dino Metlo and Nadeem Azhar Siddiqui, JJ

BADARUDDIN and 2 others----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.D-582 of 2006, decided on 15th December, 2006.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.365-A, 392, 342, 348 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Bail after arrest, grant of---Allegation against accused persons was that they armed with fire weapons abducted the victim and released him after payment of ransom---Trial Court dismissed bail after arrest---Validity---Complainant while lodging F.I.R. had not given any name in F.I.R. and had only stated that unknown persons had abducted the victim---Complainant party and accused party were residents of the same area and seemed to be inimical to each other---Complainant party had not given names of accused in F.I.R. which was lodged with unexplained delay of two clays---Prosecution witnesses recorded their statements after release of abductee and disclosed names of accused without disclosing source of their information regarding them---Accused, who appeared to be respectable and educated persons, had surrendered themselves before process of law and except the present case they were not involved in any other criminal activity---Names of accused had been placed in Column No.2 of challan by police on the basis of statements of respectable persons of locality---Sufficient weight was to be attached to result of investigating officer---Opinion of police was not binding upon the Court and Court after scrutiny of material available before it could join accused persons to face prosecution and it could issue summons for joining the accused--Case of further inquiry had been made out and it could not be said that there were reasonable grounds for believing that accused had committed an offence falling under prohibitory clause of S.497, Cr.P.C.-Bail application was accepted.

Ghulam Rasool v. The State 1982 SCMR 440; Shah Murad v. The State Criminal Petition No.105-K of 2002 and Muhammad Mumtaz and 3 others v. The State 1988 SCMR 1452 rel.

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

----S. 204---Non-bailable warrants---Issuance of at first instance---Issuance of non-bailable warrants at the first instance was not warranted under the law and court was to avoid such harsh action against those persons who were let off by police.

Shah Murad v. The State Criminal Petition No.105-K of 2002 rel.

Rasool Bux Palejo and Ghulam Abbas Khuhro for Applicants.

Muhammad Ismail Bhutto for the State.

Ali Nawaz Ghaughro for the Complainant.

PCRLJ 2007 KARACHI HIGH COURT SINDH 513 #

2007 P Cr. L J 513

[Karachi]

Before Khilji Arif Hussain, J

AKHUND JAWAID AKHTAR SIDDIQUI----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-644 of 2005, decided on 20th March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.324, 337-H(ii), 337-F(ii), 504 & 506(2)/34---Pre-arrest bail, confirmation of---Challan in the, matter had already been submitted and charge was likely to be framed in near future---Accused had been granted interim pre-arrest bail---Accused had not misused concession of interim pre-arrest bail and was regularly attending the Trial Court---Co-accused had been granted bail by the Trial Court on the statement of complainant and injured person---Interim pre-arrest bail granted to accused was confirmed on the same terms and conditions, in circumstances.

Madad Ali Shah Syed for Applicant.

Muhammad Azeem Panhwar for the State.

PCRLJ 2007 KARACHI HIGH COURT SINDH 597 #

2007 P Cr. L J 597

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

Choudhary ARIF HUSSAIN----Appellant

Versus

THE STATE----Respondent

Special Anti-Terrorism Appeal No.48 of 2003, decided on 11th March, 2006.

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

---Ss. 19(2)(4), 25 & 27---Appreciation of evidence---Accused serving in police department as Sub-Inspector was entrusted with investigation of a criminal case---During investigation accused officer submitted papers before the superior officer who found' the case to be false, but despite that accused officer investigated the case and challaned accused person in the ease---Accused persons in said case having been acquitted, Trial Court observed that investigation in the case was not conducted properly and due to defective investigation notice under S.27 of Anti-Terrorism Act, 1997 was ordered to be issued against accused officer---Trial Court framed charge against accused officer under S.19(2)(4), Anti-Terrorism Act, 1997 and convicted him under S.27 of the Act and sentenced him pay fine---All such facts having been admitted by accused officer in his statement recorded under S.342, Cr.P.C. he was rightly convicted for the offence---.Order of conviction of accused officer could not be interfered with, however fine of Rs.1,00,000 was reduced to Rs.25,000 accordingly.

H.N. Rishbud v. State of Dehli AIR 1955 SC 196 rel.

Mehmood A. Qureshi for Appellant.

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

Date of hearing: 1st March, 2006.

PCRLJ 2007 KARACHI HIGH COURT SINDH 602 #

2007 P Cr. L J 602

[Karachi]

Before Sarmad Jalal Osmany, J

Haji NASEEM GUL and another----Applicants

Versus

THE STATE----Respondent

Criminal Bail Applications Nos.775 and 790 of 2006, decided on 15th September, 2006.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.379, 427, 506-B, 147, 148 & 149---Pre-arrest bail, confirmation of---Delay of eight months in lodging F.I.R., had not at all been explained by prosecution, which caused doubt with matter particularly when civil dispute was pending between the parties regarding the plot in question---False implication of accused, could not be ruled out---Interim bail granted to accused, was confirmed on same terms and conditions.

Abdul Naeem Memon for Applicants.

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

PCRLJ 2007 KARACHI HIGH COURT SINDH 606 #

2007 P Cr. L J 606

[Karachi]

Before Muhammad Moosa K. Leghari, J

CHANESAR and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.155, 170 and Criminal Jail Appeal No.187 of 2000, decided on 22nd March, 2006.

Penal Code (XLV of 1860)---

----S. 302-Criminal Procedure Code (V of 1898), Ss.353 & 537---Qanun-e-Shahadat (10 of 1984), Art.133 --Appreciation of evidence---One of accused who had absconded, was not before the court when trial commenced and before said accused could be arrested and sent up, prosecution evidence was recorded---Examination-in-chief of two prosecution witnesses was recorded after about four months of recording of examination-in-chief of other three prosecution witnesses---After arrest of absconding accused though amended charge was framed, but evidence was not recorded afresh as required under S.353, Cr.P.C.; it was also violative of Art.133 of Qanun-e-Shahadat, 1984---Such gross irregularity was not curable under S.537, Cr.P.C.---Another accused was not afforded proper opportunity to cross-examine the witnesses, which was legal right of every accused---Said accused, in circumstances was not allowed to defend himself in a proper way---On merits also material infirmities/contradictions existed in the depositions of the prosecution witnesses and even in the impugned judgment, the facts had not been stated truly and properly---Single barrel gun was allegedly recovered from the house of accused---Such recovery was made in absence of said accused and neither the gun nor the empty cartridges were sealed--Mashir of recovery had deposed that hatchets were already secured before his arrival and that cartridges were not sealed in his presence and police obtained his signature on blank paper---Mashir had further admitted that no bloodstain was found on hatchets at the time of recovery---Circumstances had revealed that case was registered after holding the investigation, which was not permissible in law---Ocular testimony was also in conflict with medical evidence---Said defects/ infirmities had caused serious dents in the prosecution case rendering conviction and sentence awarded to the appellants illegal and unsustainable---Impugned judgment was set aside and accused were acquitted.

Ali Gohar Soomro and Mahmood A. Qureshi for Appellants.

Muneer Ahmed Khawaja for the State.

Date of hearing: 22nd February, 2006.

PCRLJ 2007 KARACHI HIGH COURT SINDH 613 #

2007 P Cr. L J 613

[Karachi]

Before Sarmad Jalal Osmany and Ali Sain Dino Metlo, JJ

ZOEB AKBER ALI FEROZPURWALA----Petitioner

Versus

STATION HOUSE OFFICER and 2 others----Respondents

Constitution Petition No. D-1558 and Miscellaneous No.6664 of 2006, decided on 6th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 195(1)(c)---Prosecution for certain offences relating to document---Bar contained in S.195(1), Cr.P.C.---Applicability---Provision of S.195(1)(c), Cr.P.C. had prevented a litigant in a civil matter from lodging a criminal complaint regarding alleged manipulation of documents which were the subject-matter of said proceedings---Had it not been so then every litigant who had filed a civil proceeding based upon certain documents, would be exposed to criminal prosecution by the other side who had challenged the genuineness of such documents---Law had provided that such a complaint could only be lodged by the concerned Court, only after it would come to the conclusion that the document in question was forged---Bar contained in S.195(1)(c), Cr.P.C., would apply to the cases of tampering with the record of a Court as well as to the cases of previously forged documents used as genuine in the court proceedings.

Haji Sardar Khalid Saleem v. Muhammad Sharif and others 2006 SCMR 1192; Rafique Bibi v. Muhammad Sharif and others 2006 SCMR 512 and Abdul Wahab v. Muhammad Nawaz and 7 others 2000 SCMR 1904 rel.

Muhammad Junaid Aziz for Petitioner.

PCRLJ 2007 KARACHI HIGH COURT SINDH 622 #

2007 P Cr. L J 622

[Karachi]

Before Mushir Alam and Muhammad Athar Saeed, JJ

MUHAMMAD AKBAR----Petitioner

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU and 2 others----Respondents

Constitution Petition No.D-807 and Miscellaneous Application No.3000 of 2006, decided on 19th June, 2006.

National Accountability Ordinance (XVIII of 1999)---

----S. 19---Constitution of Pakistan (1973), Art.199---Constitutional petition---Issuance of notice under S.19, National Accountability Ordinance, 1999 with direction to appear before Investigating Officer along with original title documents of property therein---Validity---Petitioner had impugned the notice---Chairman NAB or an officer of the NAB could, during the course of enquiry or investigation, require any person to produce or deliver any document or thing that could be useful or relevant to the enquiry or investigation---Such notice must contain necessary information having nexus to the pending inquiry or investigation to extract information from any person that could be needed to investigate the matter as to the violation of any provisions of the National Accountability Ordinance, 1999---Impugned notice was bald of any connection to the purported inquiry or investigation pending---Impugned notice did not satisfy the requirement of S.19 of National Accountability Ordinance, 1999---Such notice could not be sustained---Department, however could issue any notice in conformity with S.19 of National Accountability Ordinance, 1999 by giving relevant information connecting the required information with enquiry or investigation that might be pending before the Authority concerned.

Mahmood A. Qureshi for Petitioner.

Shafaat Hussain Sherwani, Deputy Prosecutor, NAB for Respondents.

PCRLJ 2007 KARACHI HIGH COURT SINDH 647 #

2007 P Cr. L J 647

[Karachi]

Before Mrs. Yasmin Abbasey, J

QURBAN ALI alias FOUJI----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No. S-83 of 2006, decided on 3rd April, 2006.

Criminal Procedure Code (V of 1898)--

----S. 497(2)---Penal Code (XLV of 1860), S.302---Bail, grant of---Further inquiry---Except recovery of crime weapon, no overt act appeared against accused in the case, nor contents of F.I.R. disclosed that out of persons who were seen by prosecution witnesses at the place of incident, accused was the main culprit who caused injury to deceased---Neither medico-legal report nor ballistic reports had been placed on record to show the number and nature of injuries caused to deceased---In absence of ballistic report, it was yet to be determined as to whether it was the same crime weapon recovered from the possession of accused, which was used in the commission of offence---Co-accused who too was shown duly armed with deadly weapon at the place of incident had been released on bail---Case of accused being also on the same footing, he was. also entitled for grant of bail---Irregular way of investigation had made case of prosecution doubtful, benefit of which was bound to be extended to accused---Case of accused, in circumstances, was that of further inquiry---Accused was admitted to bail, in circumstances.

2000 MLD 921 rel.

Abdul Rasool Abbasi for Applicant.

Muhammad Azeem Panhwar for the State.

PCRLJ 2007 KARACHI HIGH COURT SINDH 672 #

2007 P Cr. L J 672

[Karachi]

Before Muhammad Athar Saeed, J

NIHAL----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-479 of 2006, decided on 4th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 504, 114, 147, 148 & 149---Bail, grant of---Accused was unarmed and F.I.R. had been registered for attempt to murder---Accused, in circumstances was entitled to bail which was granted accordingly.

Abdul Rasool Abbasi for Applicant.

Anwar H. Ansari, State Counsel.

PCRLJ 2007 KARACHI HIGH COURT SINDH 675 #

2007 P Cr. L J 675

[Karachi]

Before Rahmat Hussain Jafferi and Munib Ahmad Khan, JJ

QURBAN ALI and another----Appellants

Versus

THE STATE----Respondent

Special Anti-Terrorism Appeals Nos.9, 10, 12, 13 and 37 and Confirmation Case No.3 of 2005, decided on 27th January, 2007.

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

---Ss. 365-A, 334 & 34---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Appreciation of evidence---All three accused had been picked up as culprits of the crime in identification test with their specific roles---All prosecution witnesses were subjected to a very lengthy cross-examination, but defence, could not shake their evidence-,-No material contradictions or discrepancies were found in their evidence---Accused had been established to have abducted the victim/prosecution witness---Finger prints of accused obtained by Finger Prints Expert matched with the finger prints lifted from the Car in which victim was taken away---Said evidence went unchallenged and uncontroverted---All pieces of evidence had shown clear involvement of accused in commission of abduction of the abductee and defence counsel could not shake evidence of prosecution witnesses---Evidence and roles assigned to accused persons, had made it clear that intention of all of them, except one, whose involvement had not been proved beyond any reasonable doubt, was to abduct the victim and in order to achieve said object various roles were assigned to different sets of accused persons---From the said facts it was clear that accused had prepared a detailed plan to achieve the goal of the abduction of abductee and as per planning they performed their roles---Punishment of said accused persons would be the same irrespective of the role played by each of them---Purpose of abduction of alleged abductee was proved to be to extract ransom amount---Prosecution, in circumstances had proved case against all accused except one; they had committed offence punishable under S.7(e) of Anti-Terrorism Act, 1997 read with S.365-A, P.P.C. and were liable to be convicted and sentenced for said offences---Offence punishable under S.344/34, P.P.C., was merged in the offence of abduction---Court, in circumstances was not required to pass separate sentence for, the said offence---Conviction of all accused, except one was upheld with certain modifications, accordingly.

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

----Art. 164---Evidence available because of Modern Devices---E-mail, meaning and scope---Evidentiary value---Anyone could send E-mail to any other person, if he or she knew E-mail account name of the other person; Password of the receiving person was not required for that purpose---Address of the telephone holder/owner, could be attained from P.T.C.L/N.T.C.---In that way E-mail sending computer could be identified and the data of E-mail could be retrieved from it by using computer Forensics Tools and it was also possible to prove it in Court of law provided proper chain of custody was mentioned, it was, however, difficult to identify the particular person who sent the E-mail; that was the area where investigation by some police agency was required---No law existed by which Cyber Cafes were required to keep record of persons using the computer of Cafes---Cyber, in circumstances did not keep record of persons using computers, nor did they keep history of data for long---Prosecution, in the case had not taken any effort to prove E-mail in accordance with law which, in circumstances could not be relied upon and thus, were discarded.

----S. 164---Confession---Self-exculpatory confession cannot be termed as `confession' under law.

A.K. Memon, Ghulam Sarwar, A.Q. Halepota and Wazir Hussain, Khawaja Naveed Ahmad, Ms. Rahat Ehsan and Aamir Mansoob Qureshi for Appellants.

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

M.A. Kazi for the Complainant.

Date of hearing: 12th January, 2007.

PCRLJ 2007 KARACHI HIGH COURT SINDH 693 #

2007 P Cr. L J 693

[Karachi]

Before Azizullah M. Memon, J

ATIF KHAN----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.780 of 2005, decided on 8th November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.302---Bail before arrest, refusal of---Accused had to prove that complainant party and Investigating agency, were carrying mala fide intention/ulterior motives to get accused falsely implicated in the case---Such intention was not available in the case---Complainant and her daughter had fully implicated accused for the injuries caused on the person of deceased who went on raising cries to inform both the ladies that he was severely maltreated by accused and co-accused for the reason to knock out illegal gratification amount from complainant who was mother, of deceased---Post-mortem notes also proved that eight injuries were suffered by. deceased on his person and Medical Board constituted by competent Authority confirmed such post-mortem notes---Mashirnama of the arrest of deceased conclusively proved that when deceased was arrested no injury was found on his person and prima facie deceased suffered injuries while he was in custody of accused and succumbed to the same and died while in custody---Accused being not entitled to grant of bail before arrest, his bail application was dismissed.

Murad Khan v. Fazle-e-Subhan and another PLD 1983 SC 82; Muhammad Azim v. The State PLD 1988 SC 84; Ghulam Raza Soomro v. The State 2000 SCMR 1645 and Qama Bhugio v. The State 1993 PCr.LJ 2135 ref.

Mehmood A. Qureshi for Applicant.

Shahadat Awan for the Complainant.

Ms. Cookie Rawat for the State.

PCRLJ 2007 KARACHI HIGH COURT SINDH 709 #

2007 P Cr. L J 709

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

ABDUL KHALIQ CHOHAN----Appellant

Versus

THE STATE----Respondent

Special Criminal Appeal No.19 of 2001, decided on 3rd April, 2006.

Customs Act (IV of 1969)---

----S. 156(1)(8)---Appreciation of evidence---Prosecution case was not free from doubt on account of material discrepancies in the testimony of prosecution witnesses---Point whether accused attempted to smuggle Pakistani currency out of Pakistan by Air, Trial Court was not justified in deciding same in affirmation and thereafter recording conviction and awarding sentence against accused---Impugned judgment having not been in conformity with principle of safe administration of criminal justice, conviction and sentence awarded to accused by the Trial Court, were set aside and accused was acquitted.

Mehmood A. Qureshi for Appellant.

Mehmood Alam Rizvi, Standing Counsel for the State.

Date of hearing: 3rd April, 2006.

PCRLJ 2007 KARACHI HIGH COURT SINDH 804 #

2007 P Cr. L J 804

[Karachi]

Before Sajjad Ali Shah, J

MUHAMMAD ASLAM KHAN and 2 others---Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.S-841 of 2006, decided on 16th February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 364, 342, 201 & - 202/34---Bail, refusal of---One of the prosecution witnesses in his statement under S.164, Cr.P.C. had fully implicated accused and despite lengthy cross-examination by counsel for accused, his statement could not be shaken---From the material placed on record it emerged that deceased was shot in an encounter by accused resulting into his death---Inquiry Committee was constituted to ascertain as to whether deceased was killed in a genuine or in a staged encounter and further as to whether deceased was arrested by the police a few days prior to encounter--Such inquiry was conducted by five officers of high ranks, and it was concluded that deceased was arrested few days prior to alleged encounter and was killed in police custody staging an encounter---Case was not that of no evidence as pleaded by counsel for accused, but on the contrary it appeared to be a case of tampering with prosecution evidence---Reasons were available to believe that accused had committed murder of deceased in a false encounter---No enmity or mala fides had been brought on surface against the police and sufficient material was available to connect accused with the commission of offence punishable under S.302, P.P.C.---Bail was refused to accused, in circumstances.

Muhammad Nawaz alias Nazoo v. The State 1991 SCMR 111; Zahid Ali v. The State 1993 PCr.LJ 1489; Gul Hassan v. The State 2002 MLD 1502; Wajid Ali v. The State 2006 SLJ 739 and Naseer Ahmed v. The State PLD 1997 SC 347 rel.

Raja Qureshi and Aamir Mansoob Qureshi for Applicants.

Anwar H. Ansari for the State.

Riazat Ali Sahar for the Complainant.

PCRLJ 2007 KARACHI HIGH COURT SINDH 829 #

2007 P Cr. L J 829

[Karachi]

Before Sarmad Jalal Osmany and Ali Sain Dino Metlo, JJ

ZAFAR IQBAL and 3 others----Appellants

Versus

THE STATE----Respondent

Special A.T.A. Nos.19, 20 and 21 and Confirmation Case No.7 of 2004, decided on 29th September, 2006.

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

----Ss. 7(e) & 30(2)---Penal Code (XLV of 1860), S.365-A/34---Appreciation of evidence---Sentence, reduction in---One of accused persons, did not press his appeal against his conviction, but had only prayed for conversion of his death sentence into life imprisonment---Second accused had deposed that he was arrested by the police while he was on his way to the market to purchase vegetables, but no suggestion in that regard was put to Investigating Officer and he did not examine any witness in support of his said deposition---No weight could be given to solitary oral words of said accused as against overwhelming prosecution evidence---Third accused deposed that Investigating Officer arrested him and his younger brother from his shop and demanded from them Rs.50,000 for their release---Version of said accused did not inspire any confidence and same seemed to have been cooked up only to evade punishment---Fourth accused pleaded alibi, but except his oral statement that at time of incident he was working with a contractor in a Cotton Factory, he did not produce any evidence in support of his plea of alibi---Evidence of six abductees against whom nothing was to show that they had any reason to implicate accused falsely in such heinous crime, did not require any corroboration as same was sufficiently corroborated by evidence of one of the accused's arrest while receiving the ransom, recovery of abductees on his pointation and simultaneous arrest of co accused---All abductees were found in captivity in a room with their legs tied hands fastened on their back---Investigating Officer did not have any motive to implicate accused falsely---Evidence of the abductees, being consistent in all material particulars and free from any taint of malice, carried high intrinsic value---Alleged abductees while describing their ordeal during the period of their captivity, no material contradictions appeared in their evidence---Counsel for accused could not point out any major contradiction in the evidence of prosecution witnesses---Reference to some minor discrepancies, were not material for the purpose of discrediting their evidence---Minor irregularities in the conduct of test identification parade would have no bearing on the prosecution case---Contention for retrial of case on the ground of defects in the charge and examination of accused under S.342, Cr.P.C., could not be accepted---Contention of counsel for accused that examination of accused under S.342, Cr.P.C. should have been confined only to the facts and particulars mentioned in the charge had no force---Charge against accused having fully been proved, they were rightly convicted, but all accused were young men between 24 to 35 years of age and seemed to be first offenders---Accused after coming out from prison could prove to be useful members of the society---Sentence of death awarded to accused was converted into that of imprisonment for life.

Munir Ahmed and another v. The State 1998 SCMR 752; Muhammad Akbar v. The State 1998 SCMR 2538 and Ajab alias Rajab and another v. The State 2004 MLD 180 ref.

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

----Ss. 225, 232, 342 & 535---Defects in the charge---Effect---Retrial on the ground of defects in the charge---Right of defence, no doubt was the essence of a criminal trial and accused was entitled to adequate opportunity of defence; and the framing of the charge was one of the . steps in that direction as it would put accused on notice at initial stage as to what was the case against him which he had to meet, but it was not all, and an error in the charge or even omission to frame it could not be material or fatal to the trial---Sections 232(1) & 535, Cr.P.C. were clear on the point---Froin provisions of S.225, Cr.P.C., one could easily understand that the Legislature never intended to vitiate a trial on the grounds of errors in the charge or omission to frame it, unless those were shown to have misled accused and thereby caused miscarriage of justice---Illustrations (d) & (e) of S.225, Cr.P.C., had clearly shown that misleading was not to be lightly inferred---Use of words `in fact' in Ss.225 & 535, Cr.P.C. clearly signified that mere claim of having been misled would not be sufficient, but it must be shown by convincing reasons, that he was in reality misled i.e. owing to the confusion created, he could not properly defend himself which in fact resulted into the miscarriage of justice.

Nadir Shah v. The State 1980 SCMR 402 and S.A.K. Rehmani v. The State 2005 SCMR 364 ref.

----Ss. 342 & 265-E---Power to examine accused---Purpose of S.342, Cr.P.C. was to enable accused to explain any circumstances appearing in evidence against him and not to explain the charge for whose explanation there was a separate section 265-E, Cr.P.C.---Under S.342, Cr.P.C. questions were required to be put to accused in respect of all the material pieces of evidence produced against him so that he could be able to explain all those circumstances and could not be limited only to the facts and particulars mentioned in the charge.

Muhammad Amir Khan and 5 others v. The State PLD 2005 Lah. 435 and Mumtaz Ali and another v. The State 2000 PCr.LJ 367 ref.

Muhammad Irfan, Safdar Mehmood and Nasir Rizwan for Appellants.

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

PCRLJ 2007 KARACHI HIGH COURT SINDH 860 #

2007 P Cr. L J 860

[Karachi]

Before Rahmat Hussain Jafferi and Munib Ahmed Khan, JJ

ABDUL WAHAB AFGHANI alias KHALID alias JAMEEL----Appellant

Versus

THE STATE----Respondent

Special Anti-Terrorism Jail Appeal No.51 and Confirmation Case No.9 of 2005, decided on 22nd February, 2007.

Penal Code (XLV of 1860)---

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7(a)-Appreciation of evidence---Benefit of doubt---Ocular testimony was not confidence inspiring as presence of both prosecution witnesses at the scene and time of incident was highly doubtful---Accused's arm being in bandages, Magistrate conducting identification test, should have concealed such bandage or put similar bandages on the dummies so that each person should have appeared alike; it was easy for the police to have informed witnesses that person with bandage was accused person and witnesses could have easily picked out such person---Accused with specific marks, identification test, carried no weight---Prosecution had not. relied on evidence of recoveries for the reasons that both Mashirs were not examined to support and corroborate statement of Investigating Officer-.--Case of prosecution being highly doubtful against accused, he was entitled to benefit of doubt, which was accordingly given to him.

Mushtaq Ahmed for Appellant.

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

Date of hearing: 8th February, 2007.

PCRLJ 2007 KARACHI HIGH COURT SINDH 875 #

2007 P Cr. L J 875

[Karachi]

Before Rahmat Hussain Jafferi and Munib Ahmad Khan, JJ

KHALIDA AKRAM----Applicant

Versus

THE STATE----Respondent

Criminal Bail Applications Nos.975 and 1218 of 2006, decided on 6th February, 2007.

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

----S. 51---Criminal Procedure Code (V of 1898), Ss.496, 497 & 498---Restriction for grant of bail in respect of certain offences---Scope--- Section 51 of Narcotic Substances Act, 1997 dealing with restriction for grant of bail in respect of certain offences, was divided into two parts: Under Part-I, accused, whether male or female, was not entitled to be released on bail, if he or she was involved in an offence punishable with death, provisions of Ss.496 & 497, Cr.P.C. had been specifically excluded from their application; under second part, accused male or female involved in an offence which was punishable with less than death, was not normally required to be released on bail, unless the court was of opinion that it was a fit case for grant of bail subject to condition of furnishing security of substantial amount---Under subsection (2) of S.51 of Control of Narcotic Substances Act, 1997; application of provisions of Ss.496 & 497, Cr.P.C. had not been excluded---Bail in such cases, in circumstances, could be granted on the fulfilment of the conditions there under---In view of provisions of S.498, Cr.P.C., despite the bar contained in S.51 of Control of Narcotic Substances Act, 1997, Sessions Court and High Court had the power to grant bail---Restrictions and provisions in S.497, Cr.P.C., in circumstances were equally applicable to High Court and Sessions Court while exercising powers under S.498, Cr.P.C. in granting bail or otherwise in the cases under Control of Narcotic Substances Act, 1997 in respect of offences punishable with death.

Gul Zaman v. State 1999 SCMR 1271; State v. Abdul Qayyum 2001 SCMR 14; Muhammad Ayub v. Muhammad Yaqub PLD 1966 SC 1003 and Sadiq Ali v. State PLD 1966 SC 589 rel.

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

----S. 497 [as amended by Code of Criminal Procedure (Second Amendment) Ordinance (XXXV of 2006), S.2]---Grant or refusal of bail to a woman accused---Principles---Under first Proviso to S.497, Cr.P.C. (as amended), notwithstanding anything contained in Second Schedule of Cr.P.C. or any other law for the time being in force, a woman accused was required to be released on bail as if the offence mentioned in S.497(1), Cr.P.C. was bailable---For the purpose of woman accused such offence had been made bailable, however under second proviso to S.497, Cr.P.C. (as amended), said concession of offence being bailable, had apparently been withdrawn as she was not required to be released on bail, if there appeared reasonable grounds for believing that she was guilty of offence relating to terrorism, financial corruption and murder or such offence punishable with death or imprisonment for life and imprisonment for ten years, unless the court would direct that she could be released on bail keeping in view of the facts and circumstances of the case---If the woman accused would apply for bail under said provisos and her bail application was dismissed, then under third proviso of S.497, Cr.P.C. '(as amended), she was required to be released on bail if PC, she had remained in custody for a continuous period of six months and the trial of the case had not concluded subject to condition that the court formed opinion that the delay in the trial had not occasioned by her fault or by her act or omission or any other person acting on her behalf---Provisions of S.497, Cr.P.C. (as amended), had overriding effect on all laws which were in force on the day of promulgation of said Ordinance.

Qamar Hussain Shah v. State PLD 2006 Kan, 331 rel.

----S. 497 [as amended by Code of Criminal Procedure (Second Amendment) Ordinance (XXXV of 2006), S.2]---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, refusal of---Bail application of female accused had already been dismissed by High Court---As offence was punishable with death, accused's case did not fall under first proviso to S.497, Cr.P.C. (as amended)---Female accused, in circumstances was not entitled to be released on bail as a matter of right---Whereas under third proviso of S.497, Cr.P.C. (as amended), she was required to be released on bail on fulfilment of conditions mentioned therein, but the Trial Court did not attend to that aspect of case---Accused could repeat the bail application before the Trial Court by invoking provision of third Proviso to S.497, Cr.P.C. (as amended) and the Trial Court should consider bail application within the parameters of said Proviso.

Ms. Saleha Naeem and Shoukat Hayat for Applicants (in both cases).

Syed Ashfaq Hussain Rizvi, Special Prosecutor, A.N.F. for the State.

Muhammad Ali Abbasi, Habib Ahmed, A.A.-G. and Mahmood Alam Rizvi, Standing Counsel.

PCRLJ 2007 KARACHI HIGH COURT SINDH 895 #

2007 P Cr. L J 895

[Karachi]

Before Ali Sain Dino Metlo, J

BADAL----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.602 of 2006, decided on 6th December, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 353, 148 & 149---Bail, grant of---Further inquiry---Allegation against accused was that he along with other accused armed with kalashnikov tired upon a police party, but nobody was injured in firing made by both the parties---Accused was allegedly apprehended at the spot within the jurisdiction of police station, while his companions managed to escape,--Accused remained in custody for about five months and it required further inquiry whether he and his companions attempted to murder the members of the police or simply wanted to escape by scaring them off---Accused was admitted to bail, in circumstances.

Abdul Rasool Abbasi for Applicant.

Muhammad Ismail Bhutto for the State.

PCRLJ 2007 KARACHI HIGH COURT SINDH 909 #

2007 P Cr. L J 909

[Karachi]

Before Sabihuddin Ahmed, C.J. and Faisal Arab, J

Dr. INAYATULLAH KHILJI and 9 others----Petitioners

Versus

1ST ADDITIONAL DISTRICT AND SESSIONS JUDGE (EAST) AT KARACHI and 2 others----Respondents

C.P. No.D-1266 of 2006, decided on 2nd March, 2007.

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

----Ss. 22-A(6)(1), 154 & 155---Whenever a Police Officer fails to register a criminal case a direction to do so can always be issued by the Justice of Peace under S.22A(6)(1), Cr.P.C. though it will be for such officer to determine whether the matter falls under S.154 or 155, Cr.P.C.---Justice of Peace will not undertake a detailed analysis of the allegations and other material and will not record his own opinion, which could possibly influence the process of investigation---Wide discretion to register or not to register the F.I.R. does not rest in a police officer--Principles.

Wide discretion to register or not to register the F.I.R. does not vest in a police officer. To hold otherwise would mean that such officer may be fully empowered to pick and choose as regards to which particular case he would like to investigate and would refrain from investigating the other case. The process of investigation would normally start only after recording the F.I.R.

No doubt, it is the function of S.H.O. to determine whether an F.I.R. is to be recorded but such determination is only confined to the question whether the allegations contained in the information conveyed to him, prima facie, amount to a cognizable or a non-cognizable offence: In case the information received, prima facie, constitutes a cognizable offence he would record F.I.R. and otherwise proceed under section 155, Cr.P.C. The question as to the truth of the information or the involvement of the persons mentioned as having committed the offence will be determined in the course of investigation and his conclusions arrived at thereby could be stated in his report under section 169, Cr.P.C. an ex-officio Justice of Peace could pass any order on a complaint regarding non-registration of a criminal case or neglect of duties by a Police Officer. Whenever a Police Officer fails to register a criminal case a direction to do so can always be issued under section 22A(6)(1), Cr.P.C. though it will be for such officer to determine whether the matter falls under section 154 or 155, Cr.P.C.

Once the complainant had conveyed information to the police regarding commission of an offence its failure to submit a report before a Court within the time fixed by law was a good ground for enabling him to approach the Ex-Officio Justice of Peace who could pass an order directing registration of a case. Justice of Peace had no occasion to undertake a detailed analysis of the allegations and other material and record his own opinions, which could possibly influence the process of investigation.

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

---Ss. 22A (6), 154 & 155---Registration of false F.I.Rs.---Protection of innocent persons---Principles---Conferment of powers under S.22A(6) on the Justice of Peace---Scope--Applications for quashment of F.I.Rs and parties expecting a Court for adjudication upon the truth or otherwise of the allegations even without investigation process having been completed---Such applications are moved on account of the apprehension of arrest that parties face upon registration of F.I.Rs. containing allegations, which may be false---Truth or falsehood of the allegations could only be determined during or after investigation, however though the police was required to investigate every allegation of commission of a cognizable offence, a person named as an accused could not be arrested unless some tangible material became available which could cause a reasonable suspicion of his having committed the offence---Such protection was sufficient for any innocent person against whom a false F.I.R. was registered.

Government of Sindh v. Raeesa Farooq 1994 SCMR 1283 ref.

----Ss. 22A(6), 154 & 155---Constitution of Pakistan (1973), Art.199---Constitutional petition---Order of Justice of Peace directing S.H.O. Police Station to register a case against petitioners on the basis of an application by respondent that his wife and newborn baby died on account of criminal negligence of the petitioners---Validity---High Court directed the police to investigate the matter entirely uninfluenced by the observations made in the impugned order of the Justice of Peace and not to arrest any person unless tangible material was available on the basis of which commission of a cognizable offence was suspected---Investigation was directed preferably to be conducted by a competent senior police officer as delicate questions as to extent of liability might be involved.

Azizullah K. Shaikh for Petitioners.

Abdul Jabbar Lakho, Asstt. A.-G. for Respondent No.1.

Muhammad Ali Mazhar for Respondent No.2.

PCRLJ 2007 KARACHI HIGH COURT SINDH 917 #

2007 P Cr. L J 917

[Karachi]

Before Ali Sain Dino Metlo, J

SIKANDAR and 3 others----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.563 of 2006, decided on 22nd November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 337-A(i), 337-F(i), 504, 147, 148 & 149---Bail, grant of---Further inquiry---Injuries suffered by complainant and prosecution witnesses attributed to accused fell under bailable offences and the very fact that accused had allegedly used butts and back side of their weapons and had come forward, required only further inquiry as to whether they shared common intention with co-accused in committing murders of deceased and causing fire-arm injuries to complainant and prosecution witness---Accused were entitled to grant of bail.

Abdul Rasool Abbasi for Applicants.

Muhammad Ismail Bhutto for the State.

PCRLJ 2007 KARACHI HIGH COURT SINDH 925 #

2007 P Cr. L J 925

[Karachi]

Before Mrs. Qaiser Iqbal, J

MAZHAR alias MAZHAR ALI----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-443 of 2006, decided on 7th August, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 114, 147, 148 & 149---Bail, grant of---Accused though at the time of incident was armed with the rifle, but no active role was attributed to him in commission of offence---Case of accused was at par with co-accused, who was granted bail---Accused was entitled to concession of bail in view of doctrine of consistency---Accused was admitted to bail, in circumstances.

Abdul Rasool Abbasi for Applicant.

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

PCRLJ 2007 KARACHI HIGH COURT SINDH 935 #

2007 P Cr. L J 935

[Karachi]

Before Shamsuddin Hisbani, J

MUHAMMAD ARIF----Applicant

Versus

THE STATE----Respondent

Criminal Revision Application No.90 of 2004, decided on 31st January, 2006.

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

----S. 13(d)---Appreciation of evidence---Recovery was said to have been effected from accused at 1700 hours from thickly populated area, but event was not covered in presence of independent witnesses as required under 5.103, Cr.P.C. and prosecution had failed to prove that pistol produced before the Trial Court was the same weapon which was alleged to have been recovered from the possession of accused---Case property during the statement of accused recorded under S.342, Cr.P.C., had neither been shown to him nor it was sent to Forensic/Ballistic Expert for his opinion to prove that same was functional---Case property produced before the Trial Court was not in sealed condition---Recovery of alleged weapon from the possession of accused was, therefore, shrouded in mystery---Such fact by itself was sufficient to disbelieve the version of prosecution witnesses---Both Mashirs were police constables of the same police station---No private person was associated to witness the recovery of the weapon, though place of recovery was surrounded by houses and shops---Conviction recorded against accused could not be maintained in circumstances---Impugned judgment was set aside.

Muhammad Iqbal Kalhoro for Applicant.

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

Dale of hearing: 31st January, 2006.

PCRLJ 2007 KARACHI HIGH COURT SINDH 946 #

2007 P Cr. L J 946

[Karachi]

Before Amir Hani Muslim, J

NAZEER HUSSAIN----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.1045 of 2006, decided on 22nd February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.337-H(ii) & 392---Bail, grant of---Further inquiry---.Accused had not been arrested from the spot and no recovery of robbed articles had been effected from him---Accused was in jail for more than eight months and even charge had not been framed---Case against accused, prima facie was of further inquiry---Accused was admitted to bail, in circumstances.

Abdul Naeem Memon for Applicant.

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

PCRLJ 2007 KARACHI HIGH COURT SINDH 987 #

2007 P Cr. L J 987

[Karachi]

Before Munib Ahmed Khan, J

AHMED----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.685 of 2006, decided on 28th March, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 337-H(ii) & 114---Bail, grant of---Further inquiry---Three accused had allegedly fired at deceased and it was very strange that complainant had even mentioned as to which accused had fired at what part of deceased---such a situation could hardly be gathered as it would be very difficult for a person to point out as to which accused caused what injury, when there was instant scuffle resulting into firing---Two accused who had allegedly fired at deceased, had been let off by the police despite the fact that they had been assigned specific role---Contention of State counsel that opinion of the police was not binding upon the court was correct, but it was also to be kept in mind that said opinion could be tested upon the touchstone of the facts narrated in the F.I.R.---Case of accused needing further inquiry, he was granted bail.

Nisar Ahmed Abro for Applicant.

Muhammad Ismail Bhutto for the State.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1019 #

2007 P Cr. L J 1019

[Karachi]

Before Mushir Alam and Faisal Arab, JJ

AMIR BUX----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.D-10 of 2007, decided on 29th March, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Bail, grant of---Only ten grams of narcotic was sent for chemical examination---Allegations as to the enmity as alleged by accused under the political set up, could not be altogether ruled out---Accused was extended benefit of bail, in circumstances.

Imtiaz Ali v. The State 2006 MLD 1961 and PLD 2004 SC 856 ref.

Khadim Hussain D. Solangi for Applicant.

Anwar H. Ansari, State counsel.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1035 #

2007 P Cr. L J 1035

[Karachi]

Before Muhammad Moosa K. Leghari and Sajjad Ali Shah, JJ

SHAFQUAT MEHMOOD----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.D-164 of 2006, decided on 15th February, 20'07.

Criminal Procedure Code (V of 1898)---

----S. 426---Suspension of sentence---Suspension of sentence was prayed for on the ground that accused/applicant had been sentenced to suffer imprisonment for five years, out of which he had remained in custody for about one year and ten months---Remaining portion of sentence of accused was three years and in view of the backlog of the cases, it was obvious that appeal filed by accused could not possibly be disposed of in a near future---Sentence awarded to accused, in circumstances was suspended and accused was ordered to be released subject to furnishing surety.

Syed Madad Ali Shah for Appellant.

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

PCRLJ 2007 KARACHI HIGH COURT SINDH 1056 #

2007 P Cr. L J 1056

[Karachi]

Before Sajjad Ali Shah, J

ZAHOOR ILLAHI and another----Applicants

Versus

SHAHZAD AHMAD and another----Respondents

Criminal Bail Application No.S-718 and Criminal Miscellaneous Application S-238 of 2006, decided on 13th March, 2007.

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

----S. 497---Penal Code (XLV of 1860), Ss.324, 337-F(vi), 504 & 34---Bail, refusal of---Delay in lodging F.I.R., having properly been explained, no benefit in circumstances for the purpose of granting bail, could be extended to accused---Contention of counsel for accused that since both the injured persons suffered injuries on their backside, that had negated the entire version of F.I.R., was repelled as F.I.R. did not give the direction of injured at the time they were shot---Counsel for accused had further contended that the fact, that accused, despite opportunity, had not repeated fire, had reflected lack of intention on their part which had entitled them to concession of bail---Contention was repelled in view of the fact that non-repeating of fire, at the most, could be termed that accused had no intention to brutally cause murder, but it could not-be construed that they had no intention, especially when the injury was caused on the upper part of the body---Other contention of counsel for accused that as injuries were caused at non-vital parts of the body of injured, that had reflected lack of intention, was also without any substance, as accused were not sharpshooter, they tried to shoot above the nave i.e. upper part of the body and it was sheer luck which favoured the injured---Accused could not be said to have no intention to kill as they were fully aware that injury from the fire-arm weapon, could cause the death of injured---F.I.R. specified the motive, had assigned specific role to accused, empties of 30 bore were found at the place of incident and recovery of 30 bore T.T. pistols had been effected from both accused and four prosecution witnesses including two injured had fully supported case of prosecution against the accused---Sufficient material was available on record to connect accused with the commission of crime---Intention of accused being very obvious, ingredients of S.324, P.P.C. were fully attracted in the case---Even otherwise S.337-F(vi), P.P.C., was non-bailable and in non-bailable case, bail could not be claimed as a matter of right and could be declined even in respect of offence, which did not fall under prohibitory clause of S.497, Cr.P.C.---Bail application of accused was dismissed, in circumstances.

Saleem Khan v. The State 1999 PCr.LJ 140; Akhtar Hussain v. The State 2000 PCr.LJ 315; Muhammad Nadeem v. The State 2006 PCr.LJ 1515; Waqas Ahmed v. The State 2005 SCMR 1496; Abbas and another v. State 2003 PCr.LJ X91; Dildar Baig v. The State 1998 SCMR 358; Saghir Ahmed v. Zulfiqar Ahmed 2005 PCr.LJ 1284; Liaquat Ali v. The State 2004 PCr.LJ 962; Muhammad Nawaz v. The State 2004 SCMR 772; Abbas and another v. The State 2003 PCr.LJ 391; Muzaffar Iqbal v. Muhammad Imran Aijaz 2004 SCMR 231; Abdul Haleem Lakho v. Abdul Karim alias Karim Bux and others 2005 SCMR 1539 and Jan Muhammad v. Haji Noor Jamal and another 1998 SCMR 500 rel.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.324, 337-F(vi), 504 & 34---Bail, cancellation of---Bail application moved by one of accused persons was rejected by the Trial Court, but same court after two months of declining bail to said accused, admitted the accused whose bail was sought to be cancelled---Accused,' whose bail had been sought to be cancelled, was granted bail in questionable circumstances by the Trial Court, especially when the Trial Court had come to the conclusion while declining bail to co-accused that intention of accused a as required under S.324, P.P.C. was clear; and attribution of injury on non-vital part of body was no ground for the grant of bail-After having taken such view by the Trial Court, grant of bail to accused was not only against judicial norms, but also appeared to be mala fide---Consideration for cancellation of bail, were surely different from its grant; and normally exercise of such discretion, was not to be lightly interfered---Bail granted to accused was cancelled, in circumstances.

?Allah Bachayo Soomro for Applicant (in Criminal Bail Application No.S-718 of 2006).

Syed Madad Ali Shah for the Complainant (in Criminal Bail Application No.S-718 of 2006 and for Applicant in Criminal Miscellaneous Application No.S-238 of 2006).

Noorul Haque Qureshi for Respondent (in Criminal Miscellaneous Application No.S-238 of 2006).

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

PCRLJ 2007 KARACHI HIGH COURT SINDH 1066 #

2007 P Cr. L J 1066

[Karachi]

Before Mushir Alam, J

TALUKA MUNICIPAL OFFICER----Appellant

Versus

Dr. HADI BUX JATOI and another----Respondents

Criminal Acquittal Appeal No.113 of 2006, decided on 6th April, 2007.

Marriage Functions (Prohibition of Ostentatious Display and Wasteful Expenses) Ordinance (II of 2000) ---

----S. 7---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal---Competency---Competency of appeal against acquittal filed by Taluka Municipal Officer was objected to on the ground that appeal could be filed only by aggrieved person and not by Taluka Municipal Officer who was neither aggrieved nor a witness to the alleged crime---Appeal by State could be filed in terms of subsection (1) of S.417, Cr.P.C. in a challan case---Legislature had provided a specific provision for filing appeal in a complaint case---Such right was conferred on the complainant in the terms of subsection (2) of S.417, Cr.P.C.---Observance and enforcement of the law was the responsibility of the State functionaries; and in terms of S.7 of Marriage Functions (Prohibition of Ostentatious Display and Wasteful Expenses) Ordinance, 2000; the Provincial Government could delegate such authority to any designated officer---In the present case such delegation had been conferred on Taluka Municipal Officer and if an adverse order was passed, Taluka, Municipal Officer being complainant was competent to file appeal against acquittal in terms of subsection (2) to S.417, Cr.P.C.---Contention of accused was that appeal had been filed under subsection (2-A) of S.417, Cr.P.C., which needed to be filed by an aggrieved person---Contention was repelled because merely wrong mention of section would not make appeal incompetent---Correct provision of law could always be applied by the court---Appeal against impugned judgment, in circumstances had been competently filed by the Taluka Municipal Officer---Appeal was admitted which could be fixed for regular hearing within specified period.

Imdad Ali Unar for Appellant.

Hidayatullah Abbasi for Respondents.

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

PCRLJ 2007 KARACHI HIGH COURT SINDH 1077 #

2007 P Cr. L J 1077

[Karachi]

Before Rahmat Hussain Jafferi and Munib Ahmed Khan, JJ

Dr. Mirza RAZA ALI----Petitioner

Versus

THE STATE through Chairman, National Accountability Bureau, Regional Office, Karachi----Respondent

Constitutional Petition No.D-2380 of 2006, decided on 21st February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---National Accountability Ordinance (XVIII of 1999), Ss.9(a), (ii), (iv) & (vi) & 10-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Bail, grant of---Petitioner, who was Chairman of Health Welfare Committee and co-accused who were Members of said Committee, fraudulently and dishonestly misappropriated Zakat funds b corrupt and illegal means and were proceeded against under S.9(a)(ii) (iv) & (vi) of National Accountability Ordinance, 1999 which was punishable under S.10-A of the said Ordinance---Earlier constitutional petitions filed by petitioner and his co-accused for grant of bail were dismissed by the High Court---Co-accused under same reference moves Supreme Court and Supreme Court admitted co-accused to bail---Petitioner had filed present constitutional petition mainly on the ground that since Supreme Court had granted bail to his co-accused in one and the same reference, petitioner also stood on the same footing---Contention of petitioner was that his case being not distinguishable from co-accused, he could be admitted to bail---Supreme Court had itself distinguished case of accused from the case of co-accused---Petitioner stood at contrast with co-accused and his case was distinguishable---Being Chairman of Health Welfare Committee, petitioner was more responsible towards disbursement of funds than any member of the Committee---Allegation against accused was that he sometimes made false purchases against arranged false bills from the supplier of drugs and sometimes he did not utilize the Medicines for the patients---Allegations against petitioner were not of the character which involved one or two or even a few people, but many from public at large, resulting great suffering to needy people---Petitioner, in circumstances was not entitled to bail---Petition for grant of bail was dismissed.

Anwar Saifullah Khan v. The State and 3 others 2001 SCMR 1040 ref.

Ali Anwar Tariq for Petitioner.

2007 P Cr. L J 1103

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

MUHAMMAD FAROOQ KHAN and 2 others----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.120 of 2007, decided on 26th March, 2007.

(a) "Ejusdem generis" doctrine of---

----Definition.

Canterbury's Archbishop (1596) 76 ER 519; Copland v. Powell (1823) 130 ER 149 and

Casher v. Holmes (1831) 109 ER 1263 ref.

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

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(c)---Bail, grant of---Further inquiry---Accused had levelled allegation of enmity against complainant/D.S.P. under whose jurisdiction police station concerned was situated---In view of such recorded enmity between functionaries of police station concerned and accused, investigation, in all fairness should have been entrusted to some other Police Agency so that the true picture had emerged after fair and independent investigation -Such course had not been adopted and on the contrary highly interested and inimical police officials had investigated the case against accused which under law they were not competent to do which had further cast doubt on the fairness of the investigation and credibility of story---All such points required deeper appreciation of evidence, which could be done at the time of trial and could not be undertaken at bail stage as it was the function of the Trial Court to appreciate and assess the evidence---Point as to whether 56 Kgs. of Charas could be put under a passenger seat of a Jeep, required consideration because apparently such huge quantity could not be accumulated under such seat---Such point, however, required deeper appreciation of evidence, which could not be undertaken at bail stage---Tentative assessment of the material placed before the Court revealed that case of accused required further inquiry within the meaning of S.497(2), Cr.P.C.---Accused were entitled to concession of bail and they were admitted to bail, accordingly.

Raza Hashmi for Applicants.

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

PCRLJ 2007 KARACHI HIGH COURT SINDH 1116 #

2007 P Cr. LJ 1116

[Karachi]

Before Rahmat Hussain Jafferi and Munib Ahmed Khan, JJ

ABRAR AHMED----Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU, KARACHI----Respondent Constitutional

Petition No.2405 of 2006, decided on 27th January, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---National Accountability Ordinance (XVIII of 1999), Ss.9(a)(v) & 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Bail before arrest---Petitioner had prayed for grant of bail before arrest contending that he was apprehending his arrest as a Reference had been filed by National Accountability Bureau against him in the Court---Allegations under the Reference, the subject-matter of petition were that during his service, petitioner operated sixteen Bank accounts in the name of his wife, eight Bank accounts in the name of a false person and six accounts in the names of other family members---Petitioner had accumulated approximately Rs. 1,52,453,365, through illegal means, which amount was disproportionate to his source of income---Prima facie, offence as alleged against petitioner appeared to have been made out---Criteria for grant of pre-arrest and after arrest bail was different---In the case of pre-arrest bail main consideration was that intended arrest by the police was with mala fide intention in order to harass and humiliate petitioner---National Accountability Bureau had tiled the Reference and the Court had taken the cognizance and issued non-bailable warrants for the arrest of petitioner---Authorities or the police were not arresting petitioner on their own, but they were doing so under the order of the Court, which they were bound to carry out---No mala fides, in circumstances, existed on the part of police to arrest the petitioner as the police was not arresting petitioner for ulterior reasons or motive---No mala fide could be attributed to the court in getting petitioner arrested---Pre-condition for grant of pre-arrest bail, in circumstances was not available in the case of petitioner---Reasonable grounds were available to believe that petitioner was involved in the case on the basis of material placed on record---Petitioner in circumstances was not entitled to bail.

Asfandyar Wali v. The State PLD 2001 SC 607; Murad Khan v. Fazle Subhan PLD 1983 SC 82 and Ajmal Khan v. Liaqat Hayat PLD 1998 SC 97 ref.

Raja Qureshi for Petitioner.

Shafaat Nabi Khan Sherwani, Deputy Prosecutor-General NAB for Respondent.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1125 #

2007 P Cr. L J 1125

[Karachi]

Before Muhammad Moosa K. Leghari and Sajjad Ali Shah, JJ

ALLAHDINO and another----Appellants

Versus

THE STATE----Respondent

Criminal Jail Appeal No.D-47, Criminal Appeal No.59 and Confirmation Case No.1 of 1997, decided on 13th March, 2007.

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

----Ss. 302, 307 & 34--Appreciation of evidence---Sentence, reduction in---Mitigating circumstances--Co-accused who was awarded imprisonment for life was released after serving out sentence--Counsel for accused had pleaded that accused, who was awarded death sentence, was entitled to lesser penalty for the reasons that the Trial Court had disbelieved evidence of prosecution witnesses in respect of two acquitted co-accused and that accused did not deserve extreme punishment as murder was not premeditated and accused was alleged to have given only one blow of hatchet to the deceased---Death sentence, undoubtedly was the normal penalty for the offence of murder, but in appropriate cases, where some extenuating circumstances were available to reduce the criminal's level of culpability, the courts had the discretion to award lesser punishment of imprisonment for life---Motive in the present case was shrouded in mystery--Case of prosecution was that accused gave only one hatchet blow to deceased which was evident from the post-mortem report of deceased---Conceivably it could not be case of premeditated or preconceived murder as it was an incident, having occurred on account of sudden flare up at the spur of moment where despite having opportunity, accused had not repeated the act---Prosecution having failed to prove case against two co-accused who had been acquitted, its version, would not be deemed to be a gospel truth to warrant sentence of death to accused, moreso when ocular evidence with regard to injuries sustained by deceased and injured, was not in consonance with the medical evidence--No independent witness was either associated or examined---Defence, in circumstances had created some suspicion in prosecution case for taking into account mitigating circumstances for awarding lesser penalty to accused---Accused had undergone the agony of languishing in death cell for almost ten years, waiting for a verdict and wandering between life and death---Conceivable mental distress suffered on that account could hardly be ignored or omitted to be considered as a strong extenuating circumstance to mitigate punishment---Facts and circumstances having surfaced cumulatively made out a case for mitigation of sentence---Extreme penalty of death awarded to accused was not called for and lesser sentence of life imprisonment would meet the ends of justice---Appeal was accepted to the extent that sentence of death awarded to accused was converted to imprisonment for life---Murder reference was rejected and accused was held to be entitled to the benefit admissible under S.382-B, Cr.P.C.

2003 PCr.LJ 21; 2006 SCMR 1158; Muhammad Tahir Khan v. The State 1983 SCMR 1169; Ansar Ahmed Khan Barki v. The State and another 1993 SCMR 1660; Muhammad Akram v. The State 1999 SCMR 52 and Muhammad Ikram alias Billa v. The State 1999 SCMR 406 rel.

(b) Words and phrases---

----"Extenuating or mitigating circumstances" meaning and connotation.

?Mst. Bevi v. Ghulam Shabbir and another 1980 SCMR 859 ref.

Allah Bachayo Soomro for Appellants.

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

Date of hearing: 15th February, 2007.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1199 #

2007 P Cr. L J 1199

[Karachi]

Before Munib Ahmed Khan, J

SHAHID AZIZ----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.S-56 of 2002, decided on 5th April, 2007.

Penal Code (XLV of 1860)---

----Ss. 302 & 83---Criminal Procedure Code (V of 1898), S.29-B---Sindh

Children Act (XII of 1955), S.5---Juvenile Justice System Ordinance (XXII of 2000), S.4---Appreciation of evidence---Accused who was admittedly between twelve and thirteen years of age, was not tried under the Sindh Children Act, 1955---Neither Trial Court had acted in terms of S.29-B, Cr.P.C. nor the case of accused was separated, but he was proceeded along with other co-accused who were major---Trial of the juvenile by ordinary Court being illegal, his conviction and sentence were not sustainable---Case of accused could also not be remanded and retried under the Juvenile Justice System Ordinance, 2000, for the reason that the offence was committed on 21-1-1994 while the said Ordinance was gazetted on 11-12-2001, which had no retrospective effect---Even otherwise, accused had not used the pistol, nor he had caused any injury to the deceased and he had also not supported his brother co-accused in any way---Common intention, therefore, could not be attributed to accused---Nothing was available on record to show that the accused who was of tender age was quite mature to understand the consequences of the alleged act, when he even stood at the borderline of S.83, P.P.C.---Sufficient evidence was not available to connect accused with the commission of offence and he was acquitted accordingly.

Noor Ahmed v. The State PLD 2005 Kar. 177 and Hasan Din v. Muhammad Mushtaq 1978 SCMR 49 ref.

Asif Ali Abdul Razzak Soomro for Appellant.

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

Bilawal Khan Buriro for the Complainant.

Date of hearing: 5th April, 2007.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1230 #

2007 P Cr. L J 1230

[Karachi]

Before Anwar Zaheer Jamali and Muhammad Afzal Soomro, JJ

JAVED IQBAL MIRZA----Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU----Respondent

Constitutional Petition No.D-959 and Miscellaneous No.4450 of 2006, decided on 7th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---National Accountability Ordinance (XVIII of 1999), Ss.9/10, Constitution of Pakistan (1973), Art.199---Constitutional petition---Protective bail---Accused presently in America had sought protection of High Court from being arrested on his arrival in Pakistan, to enable him to surrender before the Accountability Court where a Reference was pending against him---In view of the over all facts and circumstances of the case and clear intention of the accused to surrender before the NAB Court as early as possible, it was directed that on his arrival in Pakistan within ten days from the date of present order, he would surrender himself before the NAB Court within 48 hours and during such time he would not be arrested in connection with the said Reference---Constitutional petition was disposed of accordingly.

Raja Qureshi for Petitioner.

Shafaat Nabi Sherwani, D.P.G.-A., NAB for Respondent.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1260 #

2007 P Cr. L J 1260

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

ROSH MUHAMMAD---Petitioner

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD---Respondent

Constitutional Petition No.D-283 of 2007, decided on 27th March, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---National Accountability Ordinance (XVIII of 1999), S.10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Pre-arrest bail, grant of---Accounts Officers had been granted bail by Supreme Court---Allegation against the accused was of conspiracy with the said Accounts Officers and as such he was entitled to concession of bail---Other co-accused had also been granted bail by High Court on the rule of consistency after the grant of bail to Accounts Officers---Interim bail granted to accused was confirmed following the rule laid down by Supreme Court in the aforesaid order---Constitutional petition was accepted accordingly.

Ghazi Darban Hisbani for Petitioner.

Shafaat Nabi K. Sherwani, D.P.G. NAB.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1282 #

2007 P Cr. L J 1282

[Karachi]

Before Rahmat Hussain Jafferi and Muhammad Afzal Soomro, JJ

MUHAMMAD SHAFIQ NIRBAN----Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU----Respondent

Constitutional Petition No.D-2046 of 2006, decided on 22nd March, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---National Accountability Ordinance (XVIII of 1999), Ss.9/10---Constitution of Pakistan (1973), Art.l99---Constitutional petition---Pre-arrest bail, grant of---Accused apprehended his arrest during the process of inquiry initiated by NAB Authorities, who being an Accountant in a company had allegedly misappropriated its amount through cheques---Allegation against accused had already been investigated by the regular police and challan had been submitted in the Court of Magistrate---During inquiry officials of some banks were also found involved and in such a situation the offence could be only tried by the Court created under the Offences in Respect of Banks (Special Courts) Ordinance, 1984---Inquiry report had been submitted, but the Chairman NAB had not passed any order referring the Cease for investigation and it was not known when such order would be passed or the investigation would be completed---Interim pre-arrest bail granted to accused was confirmed in circumstances directing him to cooperate in the investigation.

S.M. Iqbal and Saadat Hussain for Petitioner.

Shafaat Nabi K. Sherwani, DPG, NAB.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1303 #

2007 P Cr. L J 1303

[Karachi]

Before Faisal Arab, J

MUHAMMAD AMIN and 2 others----Applicants

Versus

THE STATE----Respondent

Criminal Bail Applications Nos.S-113 and S-200 of 2007, decided on 8th May, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.365, 343, 337-A(i), 337-L(ii) & 34---Police Order (22 of 2002), Art.156---Bail, refusal of---Allegations against accused (public functionaries) pertained to maltreatment, unlawful confinement and torture of a citizen, which could not be treated as a minor offence, but was to be taken very seriously---Plea that the punishment in such case did not come within the prohibitory clause of S.497, Cr.P.C., was hardly a ground for grant of bail, if prima facie material was available on record to connect a public functionary with the crime---Bail applications were dismissed, in circumstances.

Khairu and another v. The State 1981 SCMR 1136 and Imtiaz Ahmed v. State PLD 1997 SC 545 rel.

Adnan Memon for Applicants.

Allah Bachayo Soomro for Applicants (in Criminal Bail Application No.S-113 of 2007).

Muhammad Azeem Panhwar for the State.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1399 #

2007 P Cr. L J 1399

[Karachi]

Before Sarmad Jalal Osmany and Ali Sain Dino Metlo, JJ

ADEEL RIAZ----Petitioner

Versus

PROVINCE OF SINDH and others----Respondents

C.P. No.D-1240 of 2005, decided on11th May, 2007.

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

----S. 164---Confession of co-accused whether judicial or extra-judicial is not substantive piece of evidence, sufficient to convict an accused against whom the same is made i.e. same cannot be made the foundation thereof; at the most it can be corroboratory in nature vis-a-vis other pieces of substantive evidence.

Ahmed Sher v. The State PLD 1995 FSC 20; Zulfiqar Ali Bhutto v. The State PLD 1979 SC 53; Shabihul Hassan v. The State PLD 1991 SC 898; Arif Nawaz Khan v. The State PLD 1991 FSC 53 and Mumtaz Ali Shaikh v. The State 1993 PCr.LJ 1919 fol.

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

----Art. 199---Constitutional petition---Quashing of F.I.R.---Principles--- Petitioner had prayed that F.I.R. in question be declared to. be false, motivated and, an abuse of the process of the law and filed mala fide etc.---Validity---Criminal proceedings could be quashed if it was a case of no evidence at all or there was some legal impediment which could come in the way of accused's conviction as allowing the same to continue would serve no purpose and in fact would be an abuse of the process of the Court.

Maqbool Rehman v. The State 2002 SCMR 1076; The State v. Asif Ali Zardari 1994 SCMR 798 and Mairaj Khan v. Gul Ahmed 2000 SCMR 122 fol.

----Art. 199---Criminal Procedure Code (V of 1898), S.561-A---Constitutional petition---Quashing of proceedings---Offence in question was a distinct one i.e. the instigation/abetment of petitioner in commission of the same and had nothing to do with the alleged civil dispute between the parties although the same may be the outcome of such dispute---Only pieces of evidence available against the petitioner

were in the shape of statements of prosecution witnesses under S.161, Cr.P.C. implicating the petitioner---Decision of the civil cases filed by the parties against each other regarding partnership matters hence would have no bearing on the adjudication of criminal proceedings in question---Proceedings launched against the, petitioner being an exercise in futility which could not result in his conviction, High Court converted the constitutional petition into application under S.561-A, Cr.P.C. and ordered the quashment of proceedings against the petitioner.

Muhammad Kashif v. Major (Retd.) Ataullah Butt 2003 MLD 1017; The State v. Tarique Mohsin 2004 SCMR 1892; Maqbool Rehman v. The State 2002 SCMR 1076; Mairaj Khan v. Gull Ahmed 2000 SCMR 122; The State v. Asif Ali Zardari 1994 SCMR 798; Muhammad Siddique v. Badar Muneer 1993' SCMR 233; A. Habib Ahmed v. M.K.G. Scott Christian PLD 1992 SC 353; Abdul Haleem v. The State 1982 SCMR 988; Ahmed Sher v. The State PLD 1995 FSC 20; Zulfiqar Ali Bhutto v. The State PLD 1979 SC 53; Shabihul Hassan v. The State PLD 1991 SC 898; Arif Nawaz Khan v. The State PLD 1991 FSC 53 and Mumtaz, Ali Shaikh v. The State 1993 PCr.LJ. 1919 ref.

Waqar Ahmed for Petitioner.

S.M. Iqbal Shah for Respondent No.5.

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

PCRLJ 2007 KARACHI HIGH COURT SINDH 1406 #

2007 P Cr. L J 1406

[Karachi]

Before Faisal Arab, J

BAHAUDDIN BABER----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-176 of 2007; decided on 15th May, 2007:

Criminal Procedure Code (V of 1898)---

----S 497---Penal Code (XLV of 1860), Ss.302, 364, 343, 201 & 202/34---Bail, refusal of---Heinous offence of torture and cold-blooded murder in unlawful custody had been committed by police functionaries and then such murder was falsely alleged to be of a dacoit in order to claim, his head money---No lenient view could be taken against accused against whom sufficient material was available to prima facie connect him with alleged crime---Accused being clearly implicated in the case and the fact that co-accused's bail application had also been rejected, no reason was to take a view different from one taken in bail application of co-accused---Bail application was dismissed, in circumstances.

Imtiaz Ahmed v. The State PLD 1997 SC 545 ref.

Muhammad Ilyas Khan for Applicant.

Muhammad Azeem Panhwar for the State.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1414 #

2007 P Cr. L J 1414

[Karachi]

Before Muhammad Moosa K. Leghari and Faisal Arab, JJ

KHADIM HUSSAIN and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.D-79, D-78 and Confirmation Case No.1 of 2007, decided on 23rd May, 2007.

Penal Code (XLV of 1860)---

----Ss. 302 & 304-Criminal Procedure Code (V of 1898), S.367--- Qanun-e-Shahadat (10 of 1984), Art.17---Appreciation of evidence---Violation of settled principle of law---Accused contended that since judgment had been recorded in violation of law, his conviction was not sustainable and that case be remanded to the Trial Court for passing a fresh judgment---State counsel had conceded to the contentions raised on behalf of accused to the effect that judgment having not been recorded in accordance with the provisions of S.367, Cr.P.C. was not valid in law--- State Counsel had consented to remand of the case---Operative part of impugned judgment, made it abundantly clear that impugned judgment had been recorded in utter disregard of settled principles, of law and flagrantly militated against provisions of S.367, Cr.P.C.---Trial Court ignored to follow provisions of S.304, P.P.C. and Art.17 of Qanun-e-Shahadat, 1984 while recording evidence of witnesses---Such cause not only had resulted in miscarriage of justice, but also detered the superior Courts from rectifying errors or passing appropriate orders---Impugned judgment was set aside and case was remanded for re-writing of the judgment.

Muddassar alias Jimmi v. The State 1996 SCMR 3 ref.

Allah Bachayo Soomro for Appellants (in Criminal Appeal No.D-78 of 2007).

Abdul Razzak Leghari for Appellant (in Criminal Appeal No.D-79 of 2007).

Anwar H. Ansari State Counsel.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1428 #

2007 P Cr. L J 1428

[Karachi]

Before Amir Hani Muslim, J

FAKIR MUHAMMAD and others----Appellants

Versus

THE STATE----Respondent

Criminal Jail Appeal No.24 of 2004, decided on 16th December, 2006.

Penal Code (XLV of 1860)---

----Ss. 302 & 337(a)(i)---Appreciation of evidence---Accused had caused hatchet injury on the head/face of deceased---Such fact was also substantiated by medical evidence who conducted post-mortem and was examined as prosecution witness---Said injury was declared sufficient to cause death---Injuries received by injured person at the hands of co-accused were substantiated by medical evidence, which were declared Shajjah-i-Khafifah which were punishable under S.337(a)(i), P.P.C. and maximum punishment for causing such injury, was two years---Co-accused could not be convicted under S.302, P.P.C. for murder of deceased as they could not cause any injury to deceased---Accused had been proved beyond doubt to have caused injuries to deceased which were declared sufficient to cause death of the deceased and accused had rightly been convicted under 5.302, P.P.C. to undergo life imprisonment and pay fine---While dismissing appeal of accused, co-accused were acquitted of the charge of murder under S.302, P.P.C. and instead they were convicted under S.337(a)(i), P.P.C. to suffer R.I. -for two years with fine.

Muhammad Waseem Shah for Appellants.

Rashid A. Qureshi, A.A.-G. for the State.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1435 #

2007 P Cr. L J 1435

[Karachi]

Before Rahmat Hussain Jafferi nd Munib Ahmed Khan, JJ

GHULAM QADIR PATNI----Appellant

Versus

THE STATE----Respondent

Special Criminal A.T. Appeal No.1 of 2006, decided on 4th May, 2007.

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

----S. 7(a)---Penal Code (XLV of 1860), Ss.302(b), 324, 392 & 353---West Pakistan Arms Ordinance (XX of 1965), S.13(e)---Qanun-e-Shahadat (10 of 1984), Arts.122 & 129, illus. (a)---Appreciation of evidence---Presence of one eye-witness at the scene of incident could not be doubted as he had injuries on his person---Evidence of eye-witnesses having no enmity with the accused was unanimous on salient features of the occurrence without any material contradictions and discrepancies---Ocular testimony was natural and had the details of the incident---Three empty bullet shells of SMG secured from the spot had matched with the SMG produced by the accused and it was established that the SMG produced by the accused was the same SMG which was carried by the deceased at the time of incident and was snatched by the accused and then fired at the deceased---Accused, thus, was connected with the commission of the crime---Accused under Art.122 of the Qanun-e-Shahadat Order, 1984, was required to prove the circumstances under which he came to know about the presence of the SMG in the box lying in the room of his house, but he failed to do so---SMG produced by accused was a robbed property and he was either a robber or receiver of robbed property by virtue of Illustration (a) of Art.129 of Qanun-e-Shahadat Order, 1984, unless he accounted for his possession, but he had not furnished any explanation in this regard and the required presumption was raised against him--Robbery of SMG and murder of the deceased were committed in single incident forming parts of one transaction, possession of robbed SMG, therefore, was taken as presumptive evidence against the accused on the charges of robbery and murder, connecting him with the offence---Defence taken by accused was not plausible---Convictions and sentences of accused were upheld in circumstances---However, all sentences were directed to run concurrently.

Emperor v. Sanata Singh AIR 1944 Lah. 339; State v. Qazi Pervez Iqbal PLD 1978 SC 64; Special Anti-Terrorism Appeal No.57 of 2001 and Confirmation case No.8 of 2001; Singha v. E. (1938) 40 PLR 58; Reuti v. E. 1933A 461; Mangal v. E., 96 IC 650; Chhotey Lal v. E., 1925 A 220; Imam-ud-Din Khan v. E., 1937 p.112; Naqli v. E., 1926 L 528; Narain Singh v. E., 1928 L 687; Jaimullabdin, in re: 53 'IC 819; Q. v.. Poromeshur Aheer, 23 WR 16 (Cr.); Crown v. Doodnathsingh 224 IC 372; Suchit Ahir v. E., 1931 p.85; Mangaya Shah v. E., 32 IC 660; Taylor, S 127(a); E. v. Sughar Singh 29 A 138; Giyan Chandra v. E. 1936 ALJ 1158; Alia v. E 1926 L 272; Joyenullah Bepari v. Moniruddin Sheikh 46 IC 158; Ramhit v. E 1922 A 24; Mavji Nanji v. E. 1941 B 325; Shaikh v. Q.E. 11C 160; Baliram Tikaram v. E. 1945 N 1; Amar Singh v. Crown 1945 E P 315; Necha v. E. 1925 N 213; Amdumiyar v. E. ILR 1937 N 315; Sada Shiva Daulat v. State AIR 1950 MB 104; Pritam Singh Sohan Singh v. State AIR 1954 Punj. 201; AIR 1954 M. 1088; Ram Sarup Singh v. E. 9 P 606; E. v. Chinlamori Sahu AIR 1930 p.879; Q.E.V. Sami, 13 M 426; Taylor, S 127(c); Sharif Jio, v. E. ILR 1943 Kar. 371; Wasim Khan v. State of UP AIR 1956 SC 400; Emperor v. Neamatulla 17 Cal. WN 1077(A); Queen Empress v. Sami 13 Mad. 426 at p.432(B); Emperor v. Chintamoni Shahu 1930 Cal. 379(2) AIR v. 17(c); Venkataswamy 1950 Mad. 309 (AIR V 37(D)) and Ramprashad Makundram v. The Crown 1949 Naga 277 (AIR V 36)(E) ref.

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

----Art. 122---Burden of proving fact especially within knowledge---Recovery from a premises jointly occupied by several persons---Firstly prosecution has to prove from reliable evidence that the recovery has been effected from one or more persons from a premises jointly occupied by several persons, then the said person or persons would be required to establish his or their innocence within the meaning of Art.122 of Qanun-e-Shahadat, 1984.

Emperor v. Santa Singh AIR 1944 Lah. 339 and State v. Qazi Pervez Iqbal PLD 1978 SC 64 ref.

----Arts. 132 & 133---Statement not challenged in cross-examination--- Presumption---Where statement of a witness is not challenged in cross-examination then it is presumed to have been accepted by the other side to be true.

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

----Art. 129, Illustration (a)---Court may presume existence of certain facts---Possession of stolen goods soon after the theft---No definite rule of limitation existed barring responsibility for stolen property after a certain time and no fixed time limit can be laid down to determine whether the possession is recent or otherwise---Every case must be judged on its own facts as the presumption of guilt varies according to whether the stolen article is not calculated to pass readily from hand to hand, therefore, the importance to be attached the possession must vary with the circumstances of each case---Important factors are the number of articles recovered and the way in which information led to discovery---Not only the nature of the property but also the seriousness of the charge should be taken into consideration in considering whether the presumption of the, guilt or the ordinary presumption of innocence must prevail in the case.

Special Anti-Terrorism Appeal No.57 of 2001 and Confirmation case No.8 of 2001; Singha v. E. (1938) 40 PLR 58; Reuti v. E. 1933A 461; Mangal v. E., 96 IC 650; Chhotey Lal v. E., 1925 A 220; Irnamud-Din Khan v. E., 1937 p.112; Nacili v. E., 1926 L 528; Narain Singh v. E., 1928 L 687; Jaimullabdin, in re: 53 IC 819; Q. v. Poromeshur Aheer, 23 WR 16 (Cr.); Crown v. Doodnathsingh 224 IC 372; Suchit Ahir v. E., 1931 4p.85; Mangaya Shah v. E., 32 IC 660; Taylor, S 127(a); E. v. Sughar Singh 29 A 138; Giyan Chandra v. E. 1936 ALJ 1158; Alia v. E 1926 L 272; Joyenullah Bepari v. Moniruddin Sheikh 46 IC 158; Ramhit v. E 1922 A 24; Mavji Nanji v. E.' 1941 B 325; Shaikh v. Q.E. 11C 160; Baliram Tikaram v. E. 1945 N 1," Amar Singh v. Crown 1945 EP 315' and Necha v. E. 1925 N 213; Amdumiyar v. E. ILR 1937 N 315 ref.

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

----Art. 129, illus. (a)---Presumption---Scope---Presumption of illustration (a) of Art.129 of Qanun-e-Shahadat, 1984, is not confined to the cases of theft only but it extends to all charges, however penal, including even murder, robbery or dacoity---General presumption of the said Illustration (a) is that the person found to be in recent possession of the fruits of the crime is a criminal unless he can account for his possession;

Wasim Khan v. State of UP AIR 1956 SC 400; Sada Shiva Daulat v. State AIR 1950 MB 104; Pritam Singh Sohan Singh v. State AIR 1954 Pun. 201; AIR 1954 M. 1088, Ram Sarup Singh v. E. 9 P 606; E. v. Chinlamori Sahu AIR 1930 p.8'79; Q.E.V. Sami, 13 M 426; ,Taylor, S 127(c); Sharif Jio v. E. ILR 1943 Kar. 371; Emperor v. Neamatulla 17 Cal WN 1077(A); Queen Empress v. Sami 13 Mad. 426 at p.432(B); Emperor v. Chintamoni Shahu 1930 Cal. 379(2) (AIR V. 17(c)); Venkataswamy 1950 Mad. 309 AIR V 37(D) and Ramprashad Makundram v. The Crown 1949 Nag. 277 (AIR V 36)(E) ref.

A.Q. Halepota for Appellant.

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

Date of hearing: 15th February, 2007.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1515 #

2007 P Cr. L J 1515

[Karachi]

Before Rahmat Hussain Jafferi and Munib Ahmed Khan, JJ

WAKEELUDDIN and others----Petitioners

Versus

THE STATE and others----Respondents

Constitutional Petitions Nos.D-2234, 2246, 2340, 2344, 2361 and 2381 of 2006 decided on 17th January, 2007.

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

----Ss. 154, 169, 170, 173 & 190---Under criminal administration of justice, a criminal case is initiated on filing of F.I.R., after registration of F.I.R, the Police Officer starts investigation for collecting the evidence; after collecting the evidence and completing the investigation, Investigating Officer, if finds that no sufficient evidence has been collected against accused, then he has to release accused as provided under S.169, Cr.P.C.---If Investigating Officer finds that sufficient evidence is available against accused, then he is required to submit the report within the meaning of S.170, Cr.P.C., in both the cases the police officer is required to submit a police report or challan as provided under S.173(1)(a), Cr.P.C. in the form provided by the Provincial Government containing various columns---If Investigating Officer would come to the conclusion that sufficient evidence was available to send up accused for trial, he was required under S.170, Cr.P.C. to forward him under custody to a Magistrate empowered to take cognizance upon a report under S.173, Cr.P.C. and to try accused himself or to send him for trial to the Court of Session and in case of bailable offence, he would take surety &dm accused to appear before such Magistrate whenever so required by him--Crux of provisions of Ss.169, 170, 173, Cr.P.C. was that whatever course the Investigating Officer adopted whether he acted under S.169 or-under S.170, Cr.P.C., it was incumbent upon him to submit a final report under S.173, Cr.P.C. with regard to the result of his investigation to a competent Magistrate and the Magistrate, would thereupon, take such action as he would consider proper under subsection (3) of S.173, Cr.P.C. or under S.190, Cr.P.C.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Ahmed Siyal v. National Accountability Bureau 2004 SCMR 265; Habib v. State 1983 SCMR 370; Falak Sher and another v. The State PLD 1967 SC 425 and Muhammad Arif v. The State 1970 SCMR 178 ref.

(b) Words and phrases---

----Phrase "mutatis mutandis"---Connotation.

----S. 18(g)---Criminal Procedure Code (V of 1898); Ss.169 & 170-- Constitution of Pakistan (1973), Art.199---Constitutional petition---Reference to Accountability Court---If the Chairman NAB or any Officer of the NAB duly authorized, after investigation of the case, found that no evidence had been collected against the accused, then he was required to release accused within the meaning of S.169, Cr.PC.---If he formed such opinion then he was required to submit the Reference before Accountability Court for passing appropriate order---If Chairman NAB formed opinion that sufficient evidence was available against accused, then he was also required to file Reference forwarding accused in custody within the meaning of S.18(g) of National Accountability Ordinance, 1999 read with S.170, Cr.P.C.---Under provisions of Ss.169 & 170, Cr.P.C. it was the mandate of law that Chairman NAB or any other Officer of NAB, duly authorized, was required to forward accused in custody in a case of non-bailable offence--Chairman NAB or any other Officer of NAB duly authorised was required to comply with provisions of Ss.169, 170 & 173, Cr.P.C.

(d) Interpretation of statutes---

----Intention of statute was required to be implemented in letter and spirit by the court and authorities.

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

----Preamble & S. 3---Constitution of Pakistan (1973), Art.199--- Constitutional jurisdiction of High Court---Scope---Bail---National Accountability Ordinance, 1999, was a sub-constitutional statute which could not override the Constitution, but it was subservient to it---Said Ordinance could not curtail constitutional powers of the High Court or any authority---High Court being constitutional court in exercise of its constitutional powers under Art.199 of the Constitution, would entertain the bail pleas of aggrieved persons.

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

----Ss. 18 & 24---Criminal Procedure Code (V of 1898), S.54---Arrest of person involved in offence under National Accountability Ordinance, 1999---Chairman NAB or any other specified person had been given powers to arrest a person or persons involved in the offence under the Ordinance---If, after receipt of information through any source as provided under S.18(b) of National Accountability Ordinance, 1999, Chairman NAB found sufficient material in such information, he could arrest accused without orders of Accountability Court or warrant of arrest, however, if he would find no sufficient material, but merely suspected that the person was involved, then he could defer the arrest of such person---Nevertheless, after collecting sufficient material, he would make arrest within the scope of S.54, Cr.P.C.---Under S.24(a) of National Accountability Ordinance, 1999, if the Chairman NAB found that during the inquiry or investigation, accused had not been arrested, then he had been given power to issue direction that accused would be arrested, however, to issue direction of arrest, power of Chairman, NAB, appeared to be discretionary, such discretionary power could be exercised by him---For exercise of such power only condition precedent was that accused was not already arrested, if such condition was fulfilled,' the Chairman NAB was required to issue such direction---No form of such direction having been mentioned in the Ordinance, such direction could be issued in any form, but it should be in writing to the Authority or person to comply with the direction---Chairman NAB having been given the powers of arrest deprive the liberty of citizen, which was to be safeguarded jealously and citizen should not be arrested without fulfilling the conditions mentioned in any clause of S.54, Cr.P.C.---Chairman NAB could conduct himself justly, fairly, equitably for the advancement of the purpose of National Accountability Ordinance, 1999 in accordance with law and in conformity with S.24-A of General Clauses Act, 1897---When permissive words were employed by the legislature to confer a power on a court or authority to be exercised, it would become the duty of the court or authority to exercise that power on proof of those circumstances---If Chairman NAB or any officer of NAB duly authorized, would form opinion on proof of circumstances mentioned in S.54, Cr.P.C., it would become his duty to arrest the accused.

Madasslal Fakir Chund v. S. Changdeo Sugar Mills AIR 1962 SC 1543; Chinnamar Kathiam v. Ayyavoo AIR 1982 SC 137; Commissioner of Police Godhandas Bhuji AIR 1952 SC 16; Abu Bakar Siddique v. Collector of Customs 2006 SCMR 705; Official Liquidator v. Dharti Dhan AIR 1977 SC 740; Hirday Narain v. I.T. Officer Bareilly AIR (sic) SC 33 and Julius v. Lord Bishop of Oxford 1874=80 All ER Rep. 43(HL) p.47 ref.

Muhammad Nawaz Shaikh, Muhammad Zafar, Minhaj Farooqui, Saeed Akhtar Abbasi, Ghazi Qurban Hisbani, Iqbal Khurram and Shafaat Nabi K. Sherwani, D.P.G.A., NAB for Petitioners.

I.A. Hashmi, M. Anwar Tariq and Ms. Ismat Mehdi as Amicus Curiae.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1571 #

2007 P Cr. L J 1571

[Karachi]

Before Nadeem Azhar Siddiqi, J

LOUNG and another----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.634 of 2006, decided on 9th July, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 337-H(ii), 148 & 149---Bail, grant of---Further inquiry---Names of accused though appeared in the F.I.R., but, role assigned to them causing injuries to deceased and complainant, was not supported by medical evidence---Post-mortem report was silent regarding alleged injury caused by co-accused---No medical certificate of complainant was on record to show that he sustained any injury on his person caused by accused---In the absence of medical evidence case of further inquiry into the guilt of accused was made out---Bail was granted to accused.

Sneed Ahmed B. Bijarani for Applicants.

Muhammad Saleem Jessar for the Complainant.

Nisar Ahmed G. Abro State Counsel.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1575 #

2007 P Cr. L J 1575

[Karachi]

Before Muhammad Moosa K Leghari and Muhammad Afzal Soomro, JJ

AMIR KHAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeals Nos.D-303, 160 of 2006 and M.A. 2016 of 2007, decided on 20th July, 2007.

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

----S. 9(c)---Appreciation of evidence---Both counsel for accused and A.A.-G. had conceded that impugned judgment could not be sustained, same be set aside and case of accused be remanded---Judgment to the extent of conviction awarded to accused thus was set aside and case was remanded to the Trial Court for recording additional evidence to bring on record the result of crime---Trial Court was directed to examine Investigating Officer or any other officer conversant with the investigating report---After recording of evidence of such police officer, accused would be entitled to record his statement under S.342, Cr.P.C. and to lead further evidence, if he so desired as provided under the law.

Aijaz Shaikh for Appellant.

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

PCRLJ 2007 KARACHI HIGH COURT SINDH 1579 #

2007 P Cr. L J 1579

[Karachi]

Before Nadeem Azhar Siddiqi, J

SADARDIN alias SADAR----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.53 of 2007, decided on 9th July, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.364/34---Bail, grant of---principles---Further inquiry---Contents of F.I.R., revealed that alleged abductee had voluntarily went with the accused and without further inquiry it could not be said that the accused had abducted alleged abductee---No direct evidence was available against accused---F.I.R, was delayed by 37 days and in absence of any direct evidence, it could not be said that reasonable grounds were available for believing that accused had committed an offence falling under the prohibitory clause of S.497, Cr.P.C.---Accused though was absconder, but it was not an absolute rule that absconder was not entitled to bail in any circumstance---Bail could be granted even to a fugitive from law on the ground that no reasonable grounds were available for believing that accused had committed a non-bailable offence, but sufficient grounds existed for further inquiry into his guilt---Bail could not be withheld as punishment and if reasonable doubt would arise with regard to participation of accused in the offence, it would be better to release accused on bail instead of keeping him in jail---Criminal cases were to be decided on the basis of facts of each case and especially in bail matters, no universal rule exists which could be pressed into service in all cases, as same would depend on the facts and circumstances of each case---Accused was admitted to bail, in circumstances.

Raees Pinyo v. The State 2007 YLR 554; Tarique Zia v. The State 2003 SCMR 958; Awal Gul v. Zawar Khan PLD 1985 SC 402; Rao Qadeer Khan v. State PLD 1981 SC 93 and Hayerth Bakhsh v. State PLD 1981 SC 265 rel.

Rao Qadeer Khan v. The State PLD 1981 SC 93; State v. Malik Mukhtar Ahmed Awan PLD 1991 SC 322; Awal Gul v. Zawar Khan PLD 1985 SC 402; Muhammad Sadiq v. Sadiq PLD 1985 SC 182; Ibarhim v. Hayath Gul 1985 SCMR 382; Syed Amanullah Shah v. The State PLD 1996 SC 241; Muhammad Nawaz v. State 1998 SCMR 891 ref.

Shafi Muhammad Memon for Applicant.

Naresh Kumar K. Shamnani for the Complainant.

Nisar Ahmed Abro for the State.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1601 #

2007 P Cr. L J 1601

[Karachi]

Before Nadeem Azhar Siddiqi, J

THE STATE through Additional-Advocate-General----Appellant

Versus

BADOO----Respondent

Criminal Acquittal Appeal No.S-19 M.As. Nos.753, 754 and 776 of 2007, decided on 9th July, 2007.

Criminal Procedure Code (V of 1898)---

----S. 417---Limitation Act (IX of 1908), Art.157---West Pakistan Arms Ordinance (XX of 1965), S.13(d)--- Appeal against acquittal---Limitation---Delay, condonation of---Appeal was filed with a delay of two months---Only plea urged by appellant was that delay had occurred due to obtaining sanction from the concerned department---Said sanction was supplied after five months receiving the copy of order---Delay of each day had to be explained for condonation of delay, which was lacking in the present case---Government could not be treated differently from ordinary litigant and was not entitled to preferential treatment, but was to be treated on equal footing with ordinary litigant---In order to bring a case for condonation of delay, appellant was required to show that sufficient cause existed which was beyond the control of appellant to file appeal within prescribed time---Only reason shown. for seeking condonation of delay being that time was consumed in obtaining sanction from the concerned department, same was not sufficient and same could not be termed to be a "circumstance of compelling nature" beyond the control of appellant---Appellant by acting promptly and diligently, could overcome the problem---Nothing had been alleged against the acquitted accused that delay had occurred due to some act on his part---Accused had acquired valuable rights, which could not be lightly disturbed or destroyed---Ground shown for condonation of delay of two months in filing appeal being neither reasonable nor cogent or inspiring confidence, same could not be condoned.

Col. Rtd. Ayub Ali Rana v. Dr. Carlite S. Pune PLD 2002 SC 63 and Muhammad Sharif v. Jamshed Ali PLD 1996 Lah. 471 rel.

State through Advocate-General Sindh v. Amir Bux 1981 SCMR 410; Nazar v. The State 1968 SCMR 715; Jalal Khan v. Lakhmir 1968 SCMR 1345; Muhammad Khan v. Sultan 1969 SCMR 82; Piran Ditta v. The State 1970 SCMR 282; Nur Muhammad v. The State 1972 SCMR 331; Government of Punjab v. Muhammad Salam PLD 1995 SC 396; 1990 SCMR 1059; WAPDA v. M.A. Rashid 2001 SCMR 722 and Muhammad Bashir v. Province of Punjab 2003 SCMR 83 ref.

Muhammad Ismail Bhutto, State Counsel for the Appellant.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1615 #

2007 P Cr. L J 1615

[Karachi]

Before Muhammad Moosa K. Leghari and Muhammad Afzal Soomro, JJ

Mst. SHAMIM alias SHAMI----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.D-500 of 2007, decided on 16th July, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, refusal of---Charas weighing 2 Kilograms was secured from the possession of accused and whole quantity was sent for Chemical Examination---In the absence of established or reasonably convincing material to demonstrate malice, it appeared difficult to assume that such a huge quantity of narcotics could be foisted by Anti-Narcotic Force upon lady/accused---Nothing had been placed on record to show that accused or for that matter the tribe to which she belonged had airy enmity with the police---Bald allegation of extortion of golden ornaments by the police, could not be supported by a mere authority letter purported to have been voluntarily signed by the lady/accused from the jail in favour of her husband, to create a doubt at bail stage, that too under a special law---No material was available on record to assume that any connection of Anti-Narcotic Force was with the rival tribe as pleaded---Plea of violation of the provisions of S.103, Cr.P.C. would not hold the' ground in view of specific exclusion of its applicability under the statute---Alleged offence fell within the prohibitory clause of S.497, Cr. P. C. as it attracted the sentence of 14 years' R.I.---Merely because accused was a lady, by itself would not entitle her to grant of bail in the given circumstances---Case being not fit one for grant of bail, bail application was dismissed.

Maqbool Ahmed Awan for Applicant.

Ashfaq Hussain Rizvi, Special Prosecutor A.N.F.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1620 #

2007 P Cr. L J 1620

[Karachi]

Before Rahmat Hussain Jafferi, J

Haji KHALIL AHMED and another----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.608 of 2005, decided on 13th September, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302 & 201/34---Bail, refusal of---Oral evidence was corroborated by the recoveries of crime empties from the place of incident and the recovery of pistol, on the information supplied by accused---Both the articles were sent to Forensic Science Laboratory, report of which was in positive---Pistol produced by accused appeared to have been used in the commission of murder of deceased---Some articles recovered from the possession of accused belonged to deceased---Evidence of motive was in the shape of statement of prosecution witness and Bank officials---Police, in circumstances, had collected sufficient evidence to involve accused in the commission of the crime---Act of co-accused appeared to be done in furtherance of common intention of the commission of the crime---Case of accused was also covered under S.34, P.P.C.---Reasonable grounds existed for believing that accused and his co-accused were involved in the crime, therefore, they were not entitled to the concession of bail.

Shahadat Awan for Applicants.

Moula Bux Bhatti for the Complainant.

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

PCRLJ 2007 KARACHI HIGH COURT SINDH 1623 #

2007 P Cr. L J 1623

[Karachi]

Before Nadeem Azhar Siddiqi, J

MAHMOOD and another----Applicants

Versus

MUMTAZ ALI and another----Respondents

Criminal Miscellaneous Application No.S-34. of 2007, decided on 6th July, 2007.

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

----S. 403---Constitution of Pakistan (1973), Art.13---Protection against double punishment---Scope---Section 403, Cr.P.C. had provided that persons once convicted or acquitted not to be tried for the same offence---Article 13 of the Constitution also had provided protection against double punishment and self-incrimination---Section 403, Cr.P.C. meant that a person could not be tried a second time for an offence, which was involved in the offence with which he was previously charged---Principle was that accused having been once acquitted by a court of competent jurisdiction and such finding having attained finality, his trial on the same facts again by the court was not permissible---Article 13 of the Constitution, was a complete protection against prosecution and punishment for the same offence more than once, which meant that no person, should be jeopardized and vexed twice for the same offence.

Alamdar Hussain Shah v. Abdul Baseer Qureshi PLD 1978 SC 121 ref.

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

----Ss. 561-A, 249-A & 265-K---Penal Code (XLV of 1860), Ss.468, 420, 471 & 477-A/34---Prevention of Corruption Act (II of 1947), S.5(2)---Quashing of proceedings---Considerations---Proceedings under S.561-A, Cr.P.C., could be quashed in exceptional circumstances without waiting for Trial court to pass order under Ss.249-A & 265-K, Cr.P.C., if the circumstances of the case so warranted---Main consideration for quashing the proceedings was that continuance of proceedings before the Trial Court would be futile exercise, wastage of time and abuse of process of court---Proceedings could also be quashed, if on the basis of facts available on record, no offence was made out and there appeared no possibility of accused to be convicted---In the present case, accused were earlier acquitted of the same offence by the Trial Court and the judgment of the Trial Court attained finality by dismissal of revision by the High Court---Since the law did not permit that once a person was convicted or acquitted, he could be tried for same offence, case was fit for exercise of jurisdiction under S.561-A, Cr.P.C. to quash proceedings an the continuance of proceedings would amount to abuse of process of the court---Application for quashing the proceedings, was allowed, in circumstances.

Ali Nawaz Ghanghro and Siraj Ali K. Chandio for Applicants.

Respondent No.1 in person.

Mushtaq Ahmed Kourejo, State Counsel.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1631 #

2007 P Cr. L J 1631

[Karachi]

Before Nadeem Azhar Siddiqi, J

MAHBOOB ALI and another----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.S-88 of 2007, decided on 2nd July, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Further inquiry---Neither the names of accused were mentioned nor any role was assigned to them, nor names of the witnesses, who implicated accused, had been mentioned in the F.I.R.---Witnesses had narrated a different story which was in contradiction of the contents of F.I.R.---From the statements under S.162, Cr.P.C., it appeared that witnesses had informed the complainant regarding .the torture committed by the police officials upon the deceased, which fact was not mentioned in the F.I.R. and that had made the statements doubtful---Since statements under S.162, Cr.P.C. were recorded after delay of three days and were not in consonance with the contents of the F.I.R:, the possibility of false implication of accused as an afterthought, could not be ruled out---Other witnesses, examined earlier, had not implicated accused---Contradiction in the F.I.R. and the statements made under S.162, Cr.P.C., had created doubt, benefit of which was to lie extended to accused---Not an absolute rule that absconders were not entitled to bail, merely due to abscondence---Names of the accused not appearing in the F.I.R. and they were implicated by way of subsequent statements recorded under S.162, Cr.P.C., case was fit for further inquiry into the guilt of accused and it could be said that no reasonable grounds existed for believing that accused had committed a non-bailable offence---Two other accused who were also implicated through subsequent statements recorded under, S.162, Cr.P.C., were granted bail and principal accused was also granted pre-arrest bail---Rule of consistency, in circumstances demanded that' accused should also be released on bail---Accused, were allowed bail, in circumstances.

The State v. Malik Mukhtar Ahmad Awan 1991 SCMR 322; Ali Nawaz v. The State 1995 PCr.LJ 1316; Raza Mohsin Qazilbash v. Muhammad Usman Malik 1999 SCMR 1794; Qadar Mand v. Muhammad Amroze 1998 SCMR 496; Khial Gul v. The State 2002 PCr.LJ 1054; Hadayat Ali v. Muhammad Shahbaz 2002 MLD 83; Ibrahim v. Hayat Gul 1985 SCMR 382 and Syed Amanullah Shah v. The State PLD 1996 SC 241 rel.

Sardar Khan Lashari for Applicants.

Nawab Syedul Mukhtar Siddiqui for the Complainant.

Mushtaq Ahmed Kourejo, State Counsel.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1669 #

2007 P Cr. L J 1669

[Karachi]

Before Rahmat Hussain Jafferi, J

NOOR MUHAMMAD----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.67 of 1995, decided on 25th July, 2007.

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

----Ss. 193, 466 & 471---Appreciation of evidence---Benefit of doubt---Accused riled civil appeal showing himself as attorney of appellant named "I" son of "J" ---Appellate Court directed production of said "I" and in pursuance of said order one person named as "I" appeared before Appellate Court---Counsel for respondents filed application to the effect that said "I" was a fictitious person---Said "I" had deposed that about 3/4 days back he was contacted by one "M" and told him to accompany him to the court and that he should say that he was "I" son of "J"---Said "I" had further deposed that he did not appoint accused as his attorney---Accused in his statement recorded under S.342, Cr.P.C. denied all allegations of prosecution and claimed that "I" for whom he appeared as attorney had executed general power of attorney in his favour, but expired after about 3months---Accused produced death certificate of said "I"---Prosecution except producing the said power of attorney had led, no evidence to show that said power of attorney was forged or was not executed by "I"---Accused from the very beginning took the plea that he was legally constituted attorney of "I"---Accused produced son of said "I" who specifically stated that his father had appointed accused as his attorney through document which bore signature of his deceased father---Prosecution, in circumstances, could not prove that accused was not the attorney of deceased "I"---Prosecution had failed to prove case against accused beyond any reasonable doubt---Accused was entitled to benefit of doubt, which accordingly was given to him.

Sulleman v. The State 2007 PCr.LJ 46; Abdul Nabi v. Syedul Mukhtar 2003 PCr.LJ 1242; Bachomal v. The State 1984 PCr.LJ 2797; Shereen v. The State 2002 PCr.LJ 1427 and Irshad Ahmed v. State 1992 SCMR 1229 rel.

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

----S. 476---Cognizance under S. 476, Cr.P.C.---Scope---For taking cognizance under S.476, Cr.P.C. complaint in writing, as provided under Ss.4(h) & 195, Cr.P.C. was not the requirement of law.

----Arts. 132 & 133---Cross-examination---If any piece of evidence was not denied in the cross-examination, it would then be presumed to be accepted to be true by the other party.

Allah Bachayo Soomro for Appellant.

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

Date of hearing: 25th July, 2007.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1698 #

2007 P Cr. L J 1698

[Karachi]

Before Mushir Alam and Mrs. Yasmeen Abbasey, JJ

MUHAMMAD HASHIM----Petitioner

Versus

PRESIDING OFFICER SPECIAL BANKING COURT, (Offences in Banks), Karachi and 7 others---Respondents

Constitutional Petition No.D-229 of 2006, decided on 23rd January, 2007.

Import and Export (Control) Act (XXXI of 1950)---

----S. S---Reference---Jurisdiction of Court---Originally, cognizance in F.I.R. was taken by the Special Court (Offences in Banks) and conviction judgment was recorded---Such conviction. judgment, however, was set aside by the High Court holding inter alia that it was the case of Commercial Court which had the jurisdiction in the matter and not the Special Court---Matter was sent by the Special Court to Commercial Court for the trial but same was returned by it as no cognizance could be taken by the Commercial Court, except for the offence triable under subsection (1) of S.5 of the Import and Export Control Act, 1950---FIA was directed to submit all papers and documents including F.I.R. before Export Promotion Bureau, and if it was satisfied that case was made out, it would file a complaint in writing to be tried by the Commercial Court.

2006 PCr.LJ 1886 ref.

S. Muhammad Kazim for Petitioner.

S. Tariq Ali, Standing Counsel.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1784 #

2007 P Cr. L J 1784

[Karachi]

Before Syed Zawwar Hussain Jafferi, J

MUHAMMAD RAMZAN alias JANI----Applicant

Versus

MUHAMMAD ASLAM and others----Respondents

Criminal Revision No.51 of 2006, decided on 22nd January, 2007.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 4 & 7---Initiating civil and criminal proceedings simultaneously---Respondents allegedly having forcibly and illegally trespassed the land owned by applicant with a common intention to grab , the property, applicant filed civil suit for seeking restoration of possession along with an application for obtaining status quo---Senior Civil Judge issued notice to respondents and maintained status quo---Applicant, in the meanwhile tiled application in the Court of Session , under section 4 of Illegal Dispossession Act, 2.005. in offence under Ss.3 & 7 of the Act---District Attorney opposed complaint stating that applicant had already tiled civil suit for seeking declaration regarding his title over disputed property---Validity---No bar existed for any party to choose to file civil suit or criminal proceedings, as per law both the remedies could be availed by the applicant---Court 'had to protect the rights of the person and property---Respondents had encroached upon the land of applicant .with ulterior motive in order to usurp the land of the applicant---Court had to see the ground realities. regarding the hardship of the parties---Applicant had rightly filed application for seeking eviction of respondents from the land. involved in the application---Mere pendency of the' civil suit regarding declaration, would not mean that applicant could not avail other efficacious remedy by approaching the court having jurisdiction---Application by applicant before Sessions Judge under section 4 of Illegal Dispossession Act, 2005 in offence under Ss.3 & 7 of said Act, was maintainable.

Rafique Bibi v, Muhammad Sharif and others 2006 SCMR 512 ref.

Sarfraz Alam Meerani for Applicant.

Noor Muhammad M. Soomro for Respondent No.3.

Muhammad Bachal Tonyo, Addl. A.-G. for Respondents.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1790 #

2007 P Cr. L J 1790

[Karachi]

Before Zia Perwez, J

SOHARO----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.613 and M.A. 2444 of 2007, decided on 13th August, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Further inquiry---.Only incriminating material against accused was statement recorded under Section 164, Cr. P.C.---Question of identity, name, address and particulars. of accused required consideration at the time of trial--Case of further inquiry having been made out, accused was- admitted, to bail, in circumstances.

Shaikh Jawaid Mir for Applicant.

Qazi Wali Muhammad for the State.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1800 #

2007 P Cr. L J 1800

[Karachi]

Before Zia Perwez, J

MUHAMMAD WAEIL AYOUBI----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.339 of 2007, decided on 9th August, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Bail, grant of---Business relationship existed between the parties in addition to other dealings---Accused was a foreign national and claimed to have been deprived of his business funds fraudulently and had been made a victim---Maximum punishment for the alleged offence was three years and accused had been in confinement for a considerable period---Bail-had been granted in the cases involving accounts between the parties---Accused had already remained in custody---Offence for which accused had been booked, did not fall under the prohibitory clause of S.497, Cr.P.C.---Good prima facie 'case having .been made out in favour of accused, he was admitted to bail.

Muhammad Akbar v. The State 2005 PCr.LJ 677; Wazir Ali v. The State 2004 YLR 1997 and Muhammad Mukhtiar v. Sajjad Hussain and 2 others 2004 YLR 2227 rel.

Raza Hashmi for Applicant.

Haji Abdul.Majeed for the State.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1805 #

2007 P Cr. L J 1805

[Karachi]

Before Ali Sain Dino Metlo and Nadeem Azhar Siddigi, JJ

ABDUL GHAFOOR alias GHAFFAR----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No. D-389 of 2006, decided on 7th December, 2006.

Criminal Procedure Code (V of 1898)---

---S. 497---Control of Narcotic Substances Act (XXV of 1997),. S.9(b)---Bail, grant of--Accused was allegedly found in possession of 500 grams of Charas in the shape of two pieces, out of which only one piece weighing 200 grams was shown to have been sent to the Chemical Examiner---Offence against accused was punishable with .imprisonment which could extend to 7 years. and accused had already remained in custody for seven months---Offence did not fall within the prohibitory clause of S.497, Cr. P.C.---Accused was not shown to be a habitual offender---All the prosecution witnesses being police officials, there was no apprehension of tampering with evidence--Report of the Trial Court revealed that no witness had been examined---State counsel had no objection to grant of bail to accused as the quantity of Charas recovered from accused was not large---Accused was admitted to bail, in circumstances.

Inayatullah Morio for Applicant.

Muhammad Ismail Bhutto for the State.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1824 #

2007 P Cr. L J 1824

[Karachi]

Before Mrs. Qaiser Iqbal, J

MUHAMMAD SHOAIB ANWAR----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.367 of 2007, decided on 21st August, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.489-F---Bail, grant of---Further inquiry---Challan having been submitted, accused was not required for further inquiry by the Investigating agency---First Information Report showed that, case for bail was made out---Case of accused having come within the ambit of further inquiry under subsection (2) of S.497, Cr. P. C. , concession of bail was extended to him.

Saleem Hussain Shah for Applicant.

Fazlur Rehman Awan State counsel.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1831 #

2007 P Cr. L J 1831

[Karachi]

Before Rahmat Hussain Jafferi, J

MOOL RAM----Appellant

Versus

HAYAT and another----Respondents

Criminal Appeal No.S-157 of 2005, decided on 1st August, 2007.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.220 & 316---Suspension of sentence---Application for---Observation of the Trial Court was that because deceased was suffering from Tuberculosis, injuries on his body became the cause of his death---Medical Officer had deposed that cause of death- was shock and asphyxia was a result of massive Haemoptysis due to pulmonary Tuberculosis---Medical Officer had further deposed that he did not find any marks of violence on the dead-body---Deceased died after 34 days of the incident---Crucial point in the matter was whether or not accused knew that the deceased was suffering from T.B. so as to judge the injuries from that aspect, but Assistant Advocate-General stated that no such evidence was available on file---Matter had been compromised between the parties---Section 220, P.P.C. though was not compoundable, but the sentence awarded thereunder was five years---counsel for accused had stated that said conviction and sentence was illegally awarded as no charge was framed for said offence---Said defect, was curable. under section 535, Cr. P. C. but it was yet ~ to be determined as to whether accused was prejudiced in his defence because of such error---Present case was a fit case where sentence could be suspended---Sentence was suspended and bail was granted to accused.

Madad Ali Shah for Appellant.

Muhammad Shafi Kashmiri for the Complainant.

Rashid A. Qureshi, Asstt. A.-G.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1848 #

2007 P Cr. L J 1848

[Karachi]

Before Mrs. Yasmin Abbasey, J

MUHAMMAD----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-333 of 2007, decided on 10th August, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Bail, grant of---F.I.R. had specifically named co-accused as the person who caused dagger blow to deceased---Accused though was present at the place of incident duly armed with pistol, but except alleging that he aimed pistol at deceased, no specific role had been assigned to him in causing the death of deceased---Mere presence of accused with T.T. Pistol was. not sufficient to prove that he was also one of the culprits---Medical certificate showed that one injury was shown on the person of deceased which had no nexus with the fire-arm---Accused was released on bail, in circumstances.

S. Madad Ali Shah for Applicant.

Muhammad Azeem Panhwar for the State.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1850 #

2007 P Cr. L J 1850

[Karachi]

Before Shabbir Ahmed, J

GHULAM QADIR and 7 others----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.271 of 1997, decided on 25th January, 1999.

Criminal Procedure Code (V of 1898)---

----S. 498---Interim bail, confirmation of---Complainant, who was not satisfied with the investigation of crime by the police, had filed a direct complaint which was pending disposal before the Trial Court---Counsel for accused had also stated that all accused were on bail in the direct complaint filed by the complainant---Charge-sheet had been submitted against accused persons, but it could proceed in view of the dictum laid down by the Supreme Court that private complaint case arising out of the direct complaint was to be tried first---Since accused persons were already on bail on the same facts in the direct complaint case interim bail granted to accused, was confirmed, on the same terms and conditions.

Syed Madad Ali Shah for Applicants.

Nadir Khan holds briefs for Umer Din Qureshi for the Complainant.

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

PCRLJ 2007 KARACHI HIGH COURT SINDH 1859 #

2007 P Cr. L J 1859

[Karachi]

Before Mrs. Yasmin Abbasey, J

DHANI BUX and 2 others----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.S-153 of 2007, decided on 7th August, 2007.

Criminal Procedure Code (V of 1898)---

---S. 497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Further inquiry---State Counsel had conceded that it was a case of improvement in the statement of complainant during investigation---Delay in lodging F.I.R., proved enmity between the parties and improvement in the statement of complainant was one of the factors which needed proper investigation and examination and required sufficient evidence---Uncle of deceased, who claimed to be eye-witness of the incident, had played no role to save deceased when in his presence deceased was said to be drowned by accused persons and he stood there just as a spectator---All said aspects required further inquiry---Accused were admitted to bail, in circumstances.

Syed Madad Ally Shah for Applicants.

2007 P Cr. L J 1902

[Karachi]

Before Sarmad Jalal Osmany, J

MUHAMMAD ISMAIL----Applicant

Versus

THE STATE----Respondent

Criminal Miscellaneous Applications Nos.11, 18 and Criminal Bail Application No.S-517 of 2006, decided on 15th September, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 561-A---Penal Code (XLV of 1860), S.302---Ad interim pre-arrest bail, confirmation of---Out of four accused, allegedly present at the scene, only two, who were absconders, were identified by the prosecution witnesses at that time and they had also been implicated in their statements under S.161, Cr.P.C., which would mean that present accused were the remaining two unidentified accused---Other co-accused, after his arrest, was picked up by the prosecution witnesses in the identification parade and thereafter also implicated him in their statements under S.164, Cr.P.C.---Fourth accused who had never been arrested, had been nominated---Prima facie, it appeared to have been done with malice---Firm conclusion in that regard, however, could only be reached after the Trial Court had recorded the evidence and it could not, in circumstances, be said that it was a case of no evidence at all so as to justify quashing of the proceedings---Involvement of accused persons at the present stage appeared to be doubtful, which fact would entitle them to bail---Miscellaneous applications were converted into bail applications and bail earlier granted to accused was confirmed.

Rais Wazir Ahmad v. The State 2004 SCMR 1167; Muhammad Sadiq Umrani v. Government of Sindh and 3 others PLD 1993 Kar. 735; Muhammad Khan v. Moula Bux 1998 SCMR 570; Bashir Ahmad alias Bashir v. The State and others 2006 MLD 610; Mst. Gul Reza v. The State 2002 PCr.LJ 9; Mst. Najam-un-Nisa v. Judge Special Court constituted under Anti-Terrorism Act, 1997 2003 SCMR 1323; Abdul Ghafoor Bhatti v. Muhammad Saleem 2003 SCMR 1934; Superintendent of Police District Rawalakot v. Shabbir Abbasi 2005 PCr.LJ 1524 and Dr. Ghulam Mustafa Solangi v. The State 2005 PCr.LJ 1638 rel.

Abdul Fatah Malik for Applicant (in Criminal Miscellaneous No.11 of 2006).

Zulfiqar Ali Sangi for Applicant (in Criminal Miscellaneous No.18 of 2006).

H.R. Shaikh, A.A.-G. and Ghulam Shabbir Shar for the Complainant.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1907 #

2007 P Cr. L J 1907

[Karachi]

Before Mrs. Qaiser Iqbal, J

ALI GUL----Petitioner

Versus

THE STATE----Respondent

Criminal Bail Application No.954 of .2005, decided on 2nd January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.392 & 398---Bail, grant of---Further inquiry--Identity of culprits who had entered into the shop for the purpose of committing offence, having not been. described in the F.I.R., it was necessary for the prosecution to put accused and co-accused, after their arrest for the purpose of identification parade through the complainant and the other eye-witnesses---Memo of arrest had shown that accused was arrested after two days of alleged incident and from his 'personal search, the registration book of the robbed motorcycle, was secured along with other articles---Accused was pointed out by co-accused, but in his statement under S.161, Cr. P. C., he had not suggested so---Case of accused requiring consideration within the ambit of subsection (2) of S.497, Cr.P.C., he was admitted to bail.

Lal Chand Mumtani for Applicant.

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

PCRLJ 2007 KARACHI HIGH COURT SINDH 1912 #

2007 P Cr. L J 1912

[Karachi]

Before Azizullah M. Memon, J

Dr. WAQAR AHMED RAMEJO----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.203 of 2006, decided on 2nd March, 2007.

Criminal trial---

----Principles---Whenever accused was charged with for having committed an offence, a formal charge necessarily had to be framed against him; then. he was to be afforded with an opportunity to explain the same by means of recording his plea in his words and then in the case of a plea of not guilty, evidence was necessarily to be recorded in support of the charge; whereafter statement of accused was to be recorded to afford him opportunity to explain the evidence, produced against him in support of said charge; and then after hearing him, a proper judgment was to be passed pronouncing either his acquittal or conviction, as the case might be---Such a procedure having not been adopted by the Trial Court, impugned orders were set aside with direction that case be remanded to the Trial Court for proceeding with the case afresh.

2003 PCr. LJ 1847; PLD 2003 Kar. 260; 2005 YLR 3297; 1987 PCr.LJ 1423; 1999 MLD 1423; PLD 1991 Kar. 355; 1997 MLD 2086; 1988 PCr.LJ 2344; 2001 PCr.LJ 222; 2001 YLR 1107; 2000 SCMR 1856; 1995 CLC 1632; PLD 2003 SC 19; 2006 YLR 3076; NLR 1993 Criminal 270; 1991. MLD 487; 1986 PCr.LJ 59; 1992 SCMR 1229; 1999 PCr.LJ 61; PLD 1951 BJ 85; 1985 MLD 1396 and 1987 PCr.LJ 74 rel.

Jawaid Hyder Kazmi for Appellant.

Sabir Hussain, A.A.-G. for the State.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1918 #

2007 P Cr. L J 1918

[Karachi]

Before Mrs. Qaiser Iqbal, J

ABDUL LATIF alias MUSHTAQ alias MULLA----Applicant

Versus

THE STATE----Respondent

Bail Application No.55 of 2006, decided on 1st February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.395---Bail, grant of---Further inquiry---Bail application of accused having earlier been rejected, statement of complainant was recorded by the Trial Court, who had exonerated accused, neither identified him nor connected him with the offence of dacoity, which had indicated that case of accused required further inquiry---Accused was admitted to bail.

Lal Chand Mamtani for Applicant.

Agha Zafar Ali, A.A.-G. for the State.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1920 #

2007 P Cr. L J 1920

[Karachi]

Before Amir Hani Muslim, J

RAHIM TAHIR----Applicant

Versus

AHMED JAN and others----Respondents

Criminal Revision Application No.70 of 2006, decided on 16th June, 2006.

Illegal Dispossession Act (XI of 2005)---

----S. 3---Illegal dispossession---Scope of Illegal Dispossession Act, 2005 was limited and the court exercising powers under S.3 of the Act, was not competent to give any finding in regard to the authenticity of a document---Findings pursuant to Illegal Dispossession Act, 2005, were only confined to illegal dispossession.

Anwar Hussain for Applicant.

Ms. Cooki Rawat for the State.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1944 #

2007 P Cr. L J 1944

[Karachi]

Before Mrs. Qaiser Iqbal, J

SHAUKAT ALI----Applicant

Versus

JAVED AKHTAR and 2 others----Respondents

Criminal Acquittal Appeal No.200 of 2007, decided on 6th August, 2007.

Criminal Procedure Code (V of 1898)---

----S. 417(2)---Appeal against acquittal---Matter was called twice, but none appeared on behalf of appellant to pursue the matter---None being in attendance, acquittal appeal was dismissed because of non-prosecution and default.

Nemo for Applicant.

Ms. Afsheen Aman, State Counsel.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1947 #

2007 P Cr. L J 1947

[Karachi]

Before Zia Perwez, J

MUHAMMAD KHALID----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.435 of 2007, decided on 26th September, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.392/34---Bail, grant of---Accused had not been arrested from the place of incident---No independent witness was cited as witness---Accused was not put to identification parade before the Magistrate despite the fact that complainant had categorically stated that he could identify the culprit on seeing him---Accused was admitted to bait, in circumstances.

Muhammad Sideman v. Riasat Ali 2002 SCMR 1304 rel.

Muhammad Rafique Brohi for Applicant.

Muhammad Ayaz Khan for the State.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1955 #

2007 P Cr. L J 1955

[Karachi]

Before Zia Perwez, J

KHAN MUHAMMAD alias KHANO----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.697 of 2007, decided on 28th September, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324 & 353/34---Bail, refusal of---Accused was arrested from the deserted locality at a time when dacoits attacked in shape of a gang---Accused had been arrested in presence of independent witnesses of the locality when he was with another member of the gang who received bullet injuries and died at the spot---Prima facie, sufficient material was available on record to connect accused with the commission of alleged offence---Bail application was dismissed, in circumstances.

Muhammad Akhtar Shad for Applicant.

Muhammad Ayaz for the State along with Muhammad Ishaq and Abdul Qadir witnesses.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1957 #

2007 P Cr. L J 1957

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

MUHAMMAD IRSHAD KHAN---Petitioner

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU and 2 others----Respondents

C.P. No.D-1526 of 2007, decided on 27th September, 2007.

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

----Art. 199---National Accountability Ordinance (XVIII of 1999), S.18---Constitutional jurisdiction of High Court---Scope---Mala fide investigation---Abuse of process of law---If investigation is launched in bad faith out of personal motives either to hurt accused or to benefit oneself or in colourable exercise of power not authorized by law under which action is taken or action taken is fraud on the law then it comes within the scope of mala fide--Fraud on law or colourable exercise of powers amounts to abuse of process of law---High Court has jurisdiction under Art. 199 of the Constitution and competent to correct such proceedings and pass necessary orders to ensure justice and fair-play---Investigating authorities do not have entire and total authority of making investigation according to their whims---If investigation is launched mala fide or beyond jurisdiction of investigating agency, then the same can be corrected and appropriate orders can be passed.

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

----Art. 199---National Accountability, Ordinance (XVIII of 1999), S.18---Constitutional petition---Investigation of criminal case---Interference by High Court---Pre-conditions.

Investigation can be corrected and necessary orders can be passed if aggrieved party alleges and proves one or other of the following conditions:--.

(1) Investigation initiated beyond jurisdiction of investigating agency;

(2) Investigation initiated with mala fide intention;

(i) in bad faith out of personal motives either to hurt person against whom action is taken or to benefit oneself;

(ii) in colourable exercise of powers;

(iii) not authorized by law under which action is taken;

(iv) action taken in fraud of law, and

(v) abuse of process of law.

----S. 9(a)(v)---Corruption and corrupt practices---Assets beyond known sources of income---Proof---Principles---In case of assets disproportionate to known sources of income of accused, prosecution is firstly required to prove sources of income of accused known to prosecution after thorough investigation, secondly assets owned and possessed by accused or his family members, Benamidars etc. and thirdly such assets are disproportionate to known sources of income.

Hakim Ali Zardari v. The State 2007 MLD 90 rel.

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

----S. 9(a)(v)---Corruption and corrupt practices---Assets beyond known sources of income---Explanation of accused---Effect---If accused furnishes satisfactory explanation, then no offence as defined under S.9(a)(v) of National Accountability Ordinance, 1999, can be made out.

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

---Ss. 9(a)(v) & 18(c)---Constitution of Pakistan (1973), Arts.4, 9, 14 & 199---Constitutional petition---Quashing of investigation---Mala fide proceedings---Investigation against accused for having assets disproportionate to his known sources of income was authorized to six different Investigating Officers---Four Investigating Officers were of the view that accused was guilty of the offence but in the" opinion of legal department of NAB there was no case against the accused---Reason given in every investigation authorization letter was against the, facts---Plea raised by accused was that orders of re-investigation passed by Director General National Accountability Bureau were based upon mala fide---Validity---Action of Director General of the Bureau in ordering for re-investigation of the case after opinion of legal department and submitting reports by Investigating Officers was abuse of process of law---Action taken under such letters were fraud on law, therefore, orders for re-investigation of the case were passed with main fide intention in order to harass and humiliate accused which was violative of Arts.4, 9 & 14 of the Constitution---Accused was not dealt with in accordance with law and he was facing inquiry and investigation for a long period of six years as inquiry started in year, 2001; in between such period, accused was arrested in spite of the fact that legal department opined that the case was not fit for prosecution---Dignity, honour, good name, fairname and basic fundamental rights of accused- were violated and accused had suffered agony of inquiry and investigation for the last six years for no fault on his part due to mala fide acts of authorities---Investigating agency could not be allowed to make mockery of law and keep sword of proceedings/prosecution hanging on the head of accused for any further period---Proceedings against accused were oppressive, not calculated to secure the ends of justice and were abuse of process of law, hence the investigation was quashed---Petition was allowed in circumstances.

Shahnaz Begum v. Honourable Judge of the High Court of Sindh and Balochistan PLD 1971 SC 677; Anwar Ahmad Khan v. The State 1996 SCMR 24; Raja Rustam Ali Khan v. Muhammad Hanif 1997 SCMR 2008; Muhammad Latif, A.S.-I. Police Station Sadar, Sheikhupura v. Sharifan Bibi 1998 SCMR 666; Choudhary Shah Muhammad, Inspector v. Mst. Ramzan Bibi NLR 1998 Criminal 204 SC and The Federation of Pakistan through Secretary Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmad Khan PLD 1974 SC 151 ref.

Muhammad Anwar Tariq for Petitioner.

Shafaat Nabi Khan Sherwani, D.P.G. Accountability for Respondents.

Date of hearing: 20th August, 2007.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1972 #

2007 P Cr. L J 1972

[Karachi]

Before Muhammad Afzal Soomro and Kahmat Hussain Jafferi, JJ

MUHAMMAD AKRAM NADEEM----Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU, SINDH through Director-General and another----Respondents

C.P. No.1897-D of 2007, decided on 19th September, 2007.

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

----S. 9(a)(v)---Corruption and corrupt practices---Assets beyond known sources of income---Proof---Necessary ingredients.

In cases under section 9(a)(v) of National Accountability Ordinance, 1999, prosecution is required to prove following points:---

(1) the accused -was holder of public office;

(2) nature and extent of pecuniary resources or property which were found in his possession;

(3) what were his known sources of income i.e. known to prosecution after thorough investigation; and

(4) such resources or property found in possession. of accused were disproportionate to his known sources of income.

If ingredients of section 9(a)(v) of National Accountability Ordinance, 1999, are first established by prosecution [hen offences of corruption and corrupt practices would be made out and for that above mentioned requirements -would be required to be proved.

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

-----S. 14(c)---Presumption---Principles---Presumption under S.14 (c) of National Accountability Ordinance, 1999, is that Court is required to presume if prosecution proves that accused is guilty of offences of corruption and corrupt practices on the condition that prosecution proves the ,ingredients of clause (a)(v), of S.9 of National Accountability Ordinance, 1999.

Hakim Ali Zardari v. State 2007 MLD 90 ref.

----Ss. 9(a)(v) & 14(c)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Bail, grant of---Assets beyond known sources of income---Proof---Allegation against accused was that he being holder of public office had acquired assets disproportionate to his known sources of income---Validity---Acquiring of assets by accused was during the period when he was .holding public office---Accused was not entitled to concession of bail---Petition was dismissed in circumstance.

Muhammad Hayat v. State PLD 2002 Pesh. 118 and Haji Kabir Khan v. State 2003 YLR 1607 distinguished.

Nazar Akber for Petitioner.

Ainuddin Khan, A.D.P.G.A. for Respondents.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1979 #

2007 P Cr. L J 1979

[Karachi]

Before Zia Perwez, J

RAZA MUHAMMAD BHUTTO and another----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No. 1209 of 2005, decided on 23rd August, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.420, 467, 468, 471 & 477---Prevention of Corruption Act (II of 1947), S.5 (2)---Bail, grant of---Further inquiry---In inquiry conducted on the directions of High Court,. accused persons were exonerated but in subsequent inquiry, they were found to be involved in the offences---Validity---On the basis of earlier report, High Court set .aside the order on the basis of which F.I.Rs. were lodged---In view of conflicting orders and views available on record and furthermore after recall of order prima facie material available .with prosecution connecting accused persons with crime required re-consideration on the basis of evidence---Bail was granted to accused in circumstances.

Rais Wazir Ahmad v. The State 2004 SCMR 1167; Raza Muhammad Sial v. The State 1988 SCMR 1223; Tariq Bashir v. The State PLD 1995 SC 34; Syed Amir Ahmed Hashmi v. The State PLD 2004 Kar. 617 and Saeed Ahmed v. The State 1996 SCMR 1132 ref.

M. Ilyas Khan along with Muhammad Farooq and Mahmood A. Qureshi for Applicant along with applicants Raza Muhammad Bhutto and Mushtaq Ahmed Qureshi present on interim bail.

Mir Qasim Jatt, A.A.-G. for the State along with Investigating Officer Rafique Ahmed Memon.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1984 #

2007 P Cr. L J 1984

[Karachi]

Before Muhammad Afzal Soomro and Rehmat Hussain Jafferi, JJ

THE STATE through Collector of Customs (Preventive) Government of Pakistan----Appellant

Versus

SAJJAD MUHAMMAD JAFFER and 2 others----Respondents

Special Criminal Acquittal Appeal No.195 of 2006, decided on 19th September, 2007.

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

----Ss. 9, 34, 35, 36 & 48---Appreciation of evidence---Government Analyst, report of---Allegation against accused was that their consignment contained narcotics but report of Government Laboratory was negative---Authorities again sent the sample to a Research Institute for chemical examination and according to the report of, Institute the consignment had traces of narcotic substances---Trial Court acquitted the accused on the ground that Research Institute was not a notified laboratory---Validity---Government laboratory had already opined that consignment did not contain any narcotic substance---Second laboratory was not a notified laboratory and Research Officer who gave report was not notified as official to test material of narcotic substances under Control of Narcotic Substances Act, 1997---Research Laboratory and Research Officer did not come within the ambit of Ss.34, 35 and 36 of Control of Narcotic Substances Act, 1997, hence such report did not fulfil the requirements of law---High Court did not find any illegality or irregularity in the order of acquittal passed by Trial Court, therefore, it did not require any interference---Appeal was dismissed in circumstances.

Ahmed Khan Bugti for Appellant.

Raza Hashmi for Respondents.

PCRLJ 2007 KARACHI HIGH COURT SINDH 1989 #

2007 P Cr. L J 1989

[Karachi]

Before Munib Ahmad Khan, J

SHOUKAT ALI and another----Applicants

Versus

THE STATE----Respondent

Criminal Miscellaneous Application No.92 of 2007, decided on 13th June, 2007.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), S.365-B---Quashing of F.I.R.---Case. had been registered for kidnapping and .threat under S.365-B, P.P.C.---Star witness in the case had totally gone contrary to the factual position of the F.I.R.; any exercise on the basis of said F.I.R. would be an exercise in futility---F.I.R., in circumstances having no support or value in the eyes of law, was quashed.

Abdul Qadir Leghari for Applicants.

Ms. Afsheen Aman for the State.

Lahore High Court Lahore

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1 #

2007 P Cr. L J 1

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

SHEHZAD and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.899, 1090, Criminal Revision No.625 and Murder Reference No.324 of 2001, heard on 17th May, 2005.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 337-D, 337-A(ii) & 337-F(v)---Appreciation of evidence---Parties were close neighbours and no ill-will or bitterness existed between them and they were living in the same street quite peacefully and amicably---Dispute between parties had arisen on the day of occurrence---No pre-existing or on-going motive was available for accused persons to cause harm to complainant party---Investigating Officer had admitted that availability of the crime-empties at the place of occurrence had neither been mentioned in the rough site-plan of the place of occurrence nor in the formal site-plan of the place of occurrence prepared by draftsman---Crime-empties had been retained by the Local Police in its custody for more than full month and same had been dispatched to the Forensic Science Laboratory after recovery of a gun from the possession of accused---Alleged offensive weapons like Sota, Danda and iron rod allegedly recovered from accused being not stained with blood, could not be connected with alleged offences---Alleged offensive weapons, having been recovered jointly from same house, such recovery had no evidentiary value---Medical evidence had established it for sure that accused party had sustained injuries during same incident---Plea of accused of exercise of right of private defence, could well be true---Medical evidence had not only contradicted the eye-witnesses, but it had gone a long way in supporting defence version of plea of accused---F.I.R. itself showed and according to statements made by all the four prosecution witnesses, initial cause of annoyance to accused party on the day of occurrence was provided by complainant party; that complainant party was unarmed at that time and it had not caused any injury to accused party---Version of incident as advanced by accused in circumstances, could reasonably be true and in all likelihood it was complainant party which had launched aggression against accused party---Accused party had not exceeded its right of private defence---Accused in circumstances were entitled to be acquitted---Conviction and sentences awarded to accused by the Trial Court were set aside and accused were acquitted of the charge and were released.

M.A. Zafar for Appellants (in Criminal Appeal No.899 of 2001).

Ch. Muhammad Arshid Ramay for Appellant (in Criminal Appeal No.1090 of 2001).

Ch. Muhammad Arshid Ramay for Petitioner (in Criminal Revision No.625 of 2001).

Zafar Ahmad Gondal for the State (in Criminal Appeal No.899 of 2001).

Miss Najma Parveen for the State (in Criminal Appeal No.1090 of 2001).

Mian Muhammad Bashir for the State (in Criminal Revision No.625 of 2001).

Ishfaq Ahmad Chaudhry for the State (in Murder Reference No.324 of 2001).

Ch. Muhammad Arshid Ramay for the Complainant.

Date of hearing: 17th May, 2006.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 11 #

2007 P Cr. L J 11

[Lahore]

Before Tariq Shamim, J

ASIM ALI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.932 of 2004, heard on 28th September, 2006.

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

----S. 302(b)---Appreciation of evidence---Minor discrepancies---Effect---Such discrepancies do not change nature and spirit of evidence given by prosecution witnesses.

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

----S. 302(b)---Appreciation of evidence---Chance witnesses---Motive---Report of Forensic Science Laboratory---Matching of crime empty with weapon of offence---On the day of occurrence, Investigating Officer found one crime empty from the place of occurrence, which he took into possession and sealed in a parcel---Subsequently, a few days later accused was arrested and during his physical remand, he led to recovery of weapon of offence, which was taken into possession and was transmitted to Forensic Science Laboratory in a sealed parcel---Trial Court convicted and sentenced accused to imprisonment for life, as prosecution witnesses had fully supported prosecution case---Plea raised by accused was that prosecution witnesses were chance witnesses and motive against accused remained unproved---Validity---Occurrence took place in bazzar, which was a crowded place, hence presence of prosecution witnesses was natural as they also had shops in the vicinity---Report of Forensic Science Laboratory was returned in positive meaning thereby that empty was wedded with the weapon recovered from accused---Such recovery had corroborative value which had been proved by prosecution through its evidence---With the exception of motive, eye-witness account furnished by independent witnesses, who had no enmity with accused stood fully corroborated by medical evidence and evidence of recovery---Prosecution had proved its case beyond shadow of doubt against accused through unshakable evidence---High Court declined to interfere in conviction and sentence awarded by Trial Court---Appeal was dismissed in circumstances.

Muhammad Sharif for Appellant.

Iram Sajjad Gull for the State.

Date of hearing: 28th September, 2006.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 17 #

2007 P Cr. L J 17

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

ANWAR-UL-HAQ and 6 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.1085 and Murder Reference No.537 of 2001, heard on 13th July, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 337-B, 148 & 149---Appreciation of evidence---Incident was a broad-daylight occurrence and F.I.R. had been lodged with reasonable promptitude-All accused had been clearly nominated in the F.I.R. and specific roles played by them during the main incident had been detailed therein with exactitude---Eye-witnesses produced by prosecution were natural witnesses of the occurrence as complainant and one eye-witness lived in a house which was situated opposite to the place of occurrence and one other prosecution witness also resided in the same vicinity---One of prosecution witnesses who had himself received many serious injuries, had shown his unmistakable presence during the incident---All eye-witnesses produced by prosecution, were closely related to both deceased and injured victims and there was hardly any possibility for such witnesses to screen the real culprits and to falsely substitute them with accused persons---Said eye-witnesses had deposed quite consistently about main occurrence and alleged discrepancies creeping into their statements were minor in nature and same did not affect the main story of prosecution and involvement of accused persons in the incident---Motive set up by the prosecution had been sufficiently established---Chemical Examiner' and Serologist had confirmed that blood available on weapons recovered from the accused, was of human origin---Medical evidence had provided sufficient support to the ocular account inasmuch as it had confirmed the date and time of occurrence, weapons used and the locale of injuries as stated by the eye-witnesses---Natural and consistent ocular account of eye-witnesses, had sufficiently corroborated prosecution story and had succeeded in establishing its case against accused beyond reasonable doubt---Accused had brutally butchered two persons and had seriously injured two others without any legal and factual justification---Accused, in circumstance did not deserve any sympathy in the matter of sentences awarded to them by the Trial Court---Normal wages of crime of murder being death, in peculiar circumstances of the case accused deserved no less---Appeal against conviction and sentences awarded to accused, were dismissed, sentences of death were confirmed and Murder Reference was answered in the affirmative, accordingly.

M.A. Zafar for the Appellants.

Mrs. Tehseen Irfan for the State (in Criminal Appeal No.1085 of 2001).

Ch. Muhammad Arshid Bajwa for the State (in Murder Reference No.537 of 2001).

Date of hearing: 13th July, 2006.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 24 #

2007 P Cr. L J 24

[Lahore]

Before Abdul Shakoor Paracha, J

MUHAMMAD AMIN and anther----Petitioners

Versus

THE STATE----Respondent

Criminal Revision No.212 of 2005, decided on 4th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 265-F(7)---Penal Code (XLV of 1860), Ss.302, 148 & 149---Application for issuance of process for compelling attendance of witness for examination---Petitioners had impugned order whereby the Trial Court refused to summon police officer as defence witness---Plea of petitioners/ accused was that said police officer having conducted investigation was necessary and relevant witness for the just decision of the case---Validity---Under provisions of S.265-F(7), Cr.P.C., it was mandatory for the Court to issue process for compelling the attendance of said police officer as a witness for examination---If application for summoning a witness was made for the purpose of vexation or delay or to defeat the ends of justice, the Court could refuse to recall defence witness, but the Court was obliged to record reasons for declining to issue process for production of defence witness---Court in the present case had not recorded any solid reason for declining to issue process for production of said defence witness---Petitioners/accused had right to produce as many witnesses as they liked in their defence---Whether evidence of intended police officer was helpful to petitioners and could be relied upon, was a question which could be decided at the time of disposal of main case; it was premature to say that the opinion of the police was neither binding on the Court nor had any evidentiary value---Trial Court, in circumstances had committed material illegality by refusing to summon said Police Officer as defence witness---Setting aside impugned order Trial Court was directed by High Court to summon said police officer as defence witness.

M.A. Zafar for Petitioner.

Malik M. Suleman Awan, State Counsel.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 63 #

2007 P Cr. L J 63

[Lahore]

Before Muhammad Farrukh Mahmud and M.A. Shahid Siddiqui, JJ

BASHIR AHMAD and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.1509, Criminal Revision No.826 and Murder Reference No.648 of 2001, heard on 27th September, 2006.

Penal Code (XLV of 1860)---

----Ss. 302, 337-A(i)(ii), 337-F(i)(iii)/34---Appreciation of evidence---Sentence, reduction in---Complainant party and accused were neighbours and no ill-will or enmity existed between the parties prior to occurrence---Injuries on the person of accused which were proved through medical evidence, ,had been suppressed by prosecution witnesses---Deliberate delay in recording F.I.R. which was not explained, would adversely affect prosecution case---Occurrence did not take place in the manner as was stated by prosecution witnesses and they had exaggerated the role of accused---Facts of the case had attracted provisions of Exception 4 of 5.300, P.P.C.---Conviction of accused was altered from offence under S.302(b), P.P.C. to offence under S.302(c), P.P.C., in circumstances---One of accused persons who was in jail since his arrest had spent more than eight years in confinement---Bail order of co-accused passed during pendency of appeal had revealed that he was 85 years of age with very weak health and weak eye-sight and his sentence was suspended after he had served out 2 years, 5 months and 25 days in jail---Sentence of both accused was reduced to the period already served by them in jail as same would meet the ends of justice---Conviction of both accused recorded for offences under S.337-A(i)(ii) and 337-F(i)(iii), P.P.C. was set aside.

Ch. Noor Muhammad Jaspal for Appellants.

Nemo for the Complainant.

Badar Munir Malik for the State (in Criminal Appeal No.1509 of 2001).

Malik Suleman Awan for the State (in Murder Reference No.648 of 2001).

Date of hearing: 27th September, 2006.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 84 #

2007 P Cr. L J 84

[Lahore]

Before Muhammad Farrukh Mahmud and M.A. Shahid Siddiqui, JJ

NISAR AHMAD----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.377-J and Murder Reference No.617 of 2001, heard on 26th September, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Statements of prosecution witnesses who were brothers of deceased, were in accordance with the story given in the F.I.R. and both of them had corroborated each other on all material points---Statements of said witnesses were corroborated by the circumstance of promptly lodged F.I.R. and the factum of post-mortem conducted on the same day---Occurrence took place in daylight and there was no question of mistaken identity of the assailant---Ocular account was fully supported by medical evidence---Report of Forensic Science Laboratory showed that gun recovered on pointation of accused was found to be in working order---Recovery of said gun had been effected from a place which was in exclusive knowledge of accused---Even otherwise, recovery of gun stood proved through reliable evidence---Defence plea taken by accused was not supported by the circumstances of the case and was rejected---Prosecution, in circumstances had successfully proved its case against accused beyond doubt---Contention of counsel for accused that it was not a case of capital sentence, was repelled as accused who was armed with deadly weapon, reached the spot and took life of an innocent man without any provocation---In absence of any mitigating circumstance, conviction and sentence awarded to accused by the Trial Court were upheld---Death sentence awarded to accused, was confirmed.

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

Hafiz Ansar-ul-Haq for Appellant.

Badar Munir Malik for the State (in Criminal Appeal No.377-J of 2001).

A.H. Masood for the State (in Murder Reference No.617 of 2001).

Date of hearing: 26th September, 2006.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 93 #

2007 P Cr. L J 93

[Lahore]

Before Muhammad Farrukh Mahmud and M.A. Shahid Siddiqui, JJ

MUHAMMAD AYUB alias MAHBOOB AHMAD----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.1569 and Murder Reference No 646 of 2001, heard on 26th September, 2006.

Penal Code (XLV of 1860)---

----S. 302(a)(b)---Appreciation of evidence---Sentence, reduction in---Place of occurrence was the house of complainant and injured prosecution witness who was son of complainant and brother of deceased lived with his father/complainant---Both of them, in circumstances were natural witnesses---Complainant and prosecution witness had no previous enmity or ill-will against accused so as to involve him in a false case---Third eye-witness was brother of wife of accused---All said three witnesses had given very consistent statement of the occurrence and had corroborated each other on all the material points-During cross-examination, no contradiction in their statements could be brought on the record of the case---Neither it was a case of mistaken identity nor that of substitution as accused was closely related to prosecution witnesses and was very well known to them---No reason existed for a father to substitute a real killer for an innocent person---Statements of prosecution witnesses were fully supported by the medical evidence---Motive stood proved through the statements of the prosecution witnesses---Evidence of recovery of .30 bore pistol was supported by the statements of prosecution witnesses, however as said pistol had not been sent to Forensic Science Laboratory, it would not be safe to rely upon evidence of recovery---Novel story as stated by accused in his defence, was an afterthought and was not worthy of credence---Prosecution, in circumstances had successfully proved its case through reliable ocular account which was supported by medical evidence and was corroborated by motive and circumstances of the case---Trial Court having overlooked provisions of 5.304, P.P.C. and convicted accused for offence under S.302(a), P.P.C., conviction of accused was altered from offence under S.302(a), P.P.C. to offence under S.302(b), P.P.C. and death sentence awarded to accused was maintained.

Ch. Imtiaz Ahmad for Appellant.

Tariq Waheed Khan for the State (in Appeal No.1569 of 2001).

Mian Abdul Qayyum Anjam for the State (in Murder Reference No.646 of 2001).

Date of hearing: 26th September, 2006.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 100 #

2007 P Cr. L J 100

[Lahore]

Before Syed Sajjad Hussain Shah, J

FARRUKH HAMEED----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.838/B of 2006, decided on 29th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Bail, grant of---Accused issued a cheque as earnest money to complainant, which prima facie was not an obligation---Real intention of the parties with regard to the agreement would be determined by the Trial Court after recording evidence---Offence for which accused was charged, did not fall under prohibited clause of S.497, Cr.P.C.---Accused was behind the bars and no more required for further investigation---To keep accused behind the bars for an indefinite period would not serve any useful purpose---Accused was admitted to bail, in circumstances.

Mian Abdul Rauf for Petitioner.

Malik Waheed Anjum for the Complainant.

Amin Feroze for the State with Ghulam Mustafa, S.-I. with record.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 108 #

2007 P Cr. L J 108

[Lahore]

Before Tariq Shamim, J

MUNIR AHMED SAIFI----Petitioner

Versus

MUHAMMAD JAVAID and 6 others----Respondents

Criminal Miscellaneous No.5873/CB of 2006, decided on 11th October, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.420, 468 & 471---Petition for cancellation of bail---Principles---Respondents/accused had been declared innocent in successive investigations by the police and report for cancellation of F.I.R. was also prepared---Matter was investigated right up to the level of S.S.P. who opined that case against accused was false and fabricated---Trial Court while exercising jurisdiction under Ss.497 & 498, Cr.P.C., was fully justified in extending the extraordinary concession of bail to respondents/accused, particularly as mala fides of complainant had been established and nothing had to be recovered from the possession of respondents---Even otherwise, considerations for grant of bail and cancellation of bail were different and strong exceptional grounds would be required for cancelling the bail once it had been validly granted by the Court below---Provisions of S.497(5), Cr.P.C. were not punitive in nature and there was no compulsion for cancelling bail, unless bail granting order was patently illegal, erroneous, factually incorrect and had resulted in miscarriage of justice or where respondents/accused were found to be making efforts to misuse concession of bail by extending threats or tampering with prosecution case---Counsel for petitioner having not been able to point out any illegality or infirmity in impugned order, petition for cancellation of bail was dismissed.

Gorsi Muhammad Din Chaudhry for Petitioner.

Ms. Naheed-ur-Rehman for the State with Muhammad Boota A.S.-I.

Mian Muhammad Ayub for Respondents.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 112 #

2007 P Cr. L J 112

[Lahore]

Before Tariq Shamim, J

TAHIR MEHMOOD and others----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous Nos.4340/B and 4365/B of 2006, decided on 25th September, 2006.

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

--S. 498---Penal Code (XLV of 1860), Ss.420, 468 & 471---Pre-arrest bail---Unexplained delay in F.I.R.---Benefit of doubt---Prima facie case---Scope---Allegation against accused was that he along with his deceased brother, prepared forged documents and illegally occupied the land purchased by complainant---F.I.R. was registered with a delay of five months and brother of accused had already died ten years before lodging of F.T.R.---Effect---Delay of five months in lodging of F.I.R. was unexplained on account of which veracity of prosecution case had become doubtful---Death of brother of accused had also created doubts about authenticity of prosecution case, the benefit of which even at bail stage must go to accused---Offences mentioned in F.I.R. were prima facie not attracted to the case of accused, which even otherwise were not hit by prohibitory clause of S.497 Cr.P.C.---Pre-arrest bail was granted in circumstances.

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

----S. 497---Bail, grant of---Principle---Bail in cases not punishable with death, transportation of life or ten years imprisonment---Grant of bail is rule and refusal is an exception.

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

Munir Ahmad Bhatti assisted by Aleem Baig for Petitioner (in Criminal Miscellaneous No.4340/B of 2006).

Rana Muhammad Akram Khan for Petitioner (in Criminal Miscellaneous No.4365/B of 2006).

Rana Muhammad Zahid for the Complainant.

Masood Sadiq Mirza for the State with Ghulam Ali, S.-I.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 117 #

2007 P Cr. L J 117

[Lahore]

Before Tariq Shamim, J

AHMAD KHAN and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeals No.1272, 1173 and Criminal Revision No.699 of 2004, heard on 19th September, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b), 148 & 149---Criminal'" Procedure Code (V of 1898), S.103---Appreciation of evidence---Previous enmity between the parties---Ocular account not supported by medical evidence---Recovery of crime weapons and empties not proved---Effect---Allegation against accused/ appellants was that they along with co-accused committed murder of two persons---Motive behind the occurrence was a previous murder committed by complainant side---Trial Court, while acquitting six co-accused, convicted and sentenced accused to life imprisonment and two co-accused were declared proclaimed offenders---Evidence of prosecution witnesses, on account of admitted enmity, needed corroboration from some independent source and was not to be straightaway accepted for purpose of conviction of accused---Medical evidence corroborated ocular account to the extent of injuries inflicted on deceased by two proclaimed offenders---Medical evidence did not corroborate eye-witnesses' account as to fire attributed to one of the accused at foot of deceased, because such dimension of injury (1/2 c.m. x 1/2 c.m.) could not have been caused from a distance of 90 feet---Occurrence appeared to have taken place on account of chance meeting of two parties who had a long standing enmity between them and this aspect was supported by the fact that a female from accused side was also injured in the said incident who subsequently succumbed to injuries---Recovery of crime weapons was not only belated but in clear violation of S.103, Cr.P.C. hence the same could not be relied upon by prosecution for any corroborative purpose---Crime empties and weapons of offence moreover were not sent to Forensic Science Laboratory for expert opinion, hence, their recovery was not proved---Two accused had been convicted solely on ground that recovery of weapons of offence had been effected from them without taking into consideration the infirmities and defects in recovery proceedings---Trial Court, while convicting accused/appellants, believed the same set of evidence which it had disbelieved qua the six acquitted accused---Prosecution had miserably failed to prove its case against accused/appellants---Appeals were accepted and accused were acquitted.

Shahid Azeem for Appellants.

Rab Nawaz Khan Niazi for the Complainant.

Ch. Nazir Ahmed for the State.

Date of hearing: 19th September, 2006.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 124 #

2007 P Cr. L J 124

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD JAVAID KHAN----Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, MULTAN and 2 others----Respondents

Writ Petition No.4003 of 2006, decided on 22nd September, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 154---Justice of Peace---Jurisdiction of---Scope---Object of S.22-A, Cr.P.C., was only that if a grievance was voiced with regard to non-registration of F.I.R. in a cognizable offence; Justice of Peace in terms of said section could only direct/suggest as to whether in the terms of S.154, Cr.P.C., S.H.O. had acted legally or illegally; and in case S.H.O. had refused to act, whether his inaction was justified---Justice of Peace, under no provision of law could direct or even observe with regard to the nature of offence, commission of the offence or addition or deletion of relevant sections; as the same exclusively fell within the jurisdiction of either Investigating Officer or of the Trial Court at the time of framing charge.

Khizar Hayat and others v. I.-G. Punjab and others PLD 2005 Lah. 470 and Sheikh Muhammad Shahzad v. Naveed Anwar Sethi and 4 others PLD 2006 Lah. 460 ref.

Faiz Bakhsh Khan for Petitioner.

M.R. Khalid Malik, Addl. A.-G. for Respondents.

Imran Shehzad Bhatti for Respondent No.3.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 145 #

2007 P Cr. L J 145

[Lahore]

Before Hasnat Ahmad Khan, J

TASADDAQ HUSSAIN----Petitioner

Versus

D.P.O. and others----Respondents

Writ Petition No.5705 of 2006, decided on 15th November, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 154---Constitution of Pakistan (1973), Art.199---Constitutional petition---Registration of case---Medico-legal report had shown that petitioner received a fire-arm injury on his leg, which went through and through and that petitioner was promptly examined medically---Grant of relief by way of order of registration of case would be nothing, but putting legal machinery into motion---If there was an information relating to the commission of a cognizable offence, it would fall under S.154, Cr.P.C.; and a police officer was under statutory obligation to enter it in prescribed Register---Condition .precedent was simply two fold; first it must be an information and secondly it must relate to a cognizable offence on the face of it and not merely in the light of subsequent events---Police Officer was bound to receive a complaint when it was preferred to him; or where commission of offence was reported to him orally, he was bound to take down the complaint--- Complaint if not incorporated in the register it would mean that the official concerned had failed to perform a statutory duty as a public servant and would render himself to be dealt with by his superior officers for neglect of duty and it was not dependant upon the sweet will of Police Officer to record or not to record the same---Regarding availability of remedy of private complaint, suffice it to say that allegations levelled by petitioner would be requiring thorough investigation and question of recovery of fire-arm weapon, allegedly used in the occurrence, would also be probed into and for that reason it would be more appropriate to register the case---Impugned order was set aside directing police to entertain application of petitioner for registration of case and do the needful in accordance with law.

PLD 2001 SC 415; Muhammad Ali Hussain v. D.P.O. and others PLD 2006 Lah. 95; M. Anwar Barrister-at-Law v. The Station House Officer, Civil Lines Police Station Lahore and another PLD 1972 Lah. 493; Wajid Ali Khan and others v. Government of Sindh and others 2001 SCMR 1556; Saeed Ahmad and others v. Naseer Ahmad and others PLD 2000 Lah. 208; Saga Ullah v. S.H.O. Police Station Civil Lines, Gujrat and others PLD 2003 Lah. 228 and Muhammad Yousaf v. Director-General of Police PLD 1997 Lah. 135 ref.

Mian Muhammad Ishaq-ul-Haq for Petitioner.

Muhammad Iftikhar-ul-Haq Khawar for Respondents Nos.3, 4 and 5.

Abdur Rehman S.-I.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 156 #

2007 P Cr. L J 156

[Lahore]

Before M. Bilal Khan and Fazal-e-Miran Chauhan, JJ

MUHAMMAD SAEED----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.4602/B of 2006, decided on 12th July, 2006.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 2(g)(h)(t)(u)(za), 3 & 51---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)---Bail---Refusal of---Recovery of Psychotropic substance---Delay of nine days in sending samples to Chemical Examiner---Non-observance of directory provisions of Control of Narcotic Substances (Government Analysts) Rules, 2001---Effect---Allegation against accused/petitioner as mentioned in F.I.R. was that on pointing out by co-accused, Psychotropic Drug (Buprenorphine) was recovered from his custody---Accused contended that there was a delay of nine days in sending samples to Chemical Examiner whereas according to rule 4(2) of Control of Narcotic Substances (Government Analysts) Rules, 2001, samples were to be dispatched to Chemical Examiner within 72 hours of recovery of contraband, hence belated dispatch of samples had vitiated entire proceedings against him; that contraband allegedly recovered from accused was in liquid form and Chemical Examiner was required under S.3 of Narcotic Substances Act, 1997 to determine actual percentage of recovered drug which was not doll- by Chemical Examiner; that drug was allegedly recovered in powder form but report of Chemical Examiner showed that drug was in liquid form and that contraband was openly available in market and was easily accessible to everyone---Trial Court dismissed bail petition of accused---Validity---Rule 4(2) of Control of Narcotic Substances (Government Analysts) Rules, 2001, even if bound down Investigating Officer to send samples within specified time, a little delay in sending samples to Chemical Examiner was of no consequence unless grave prejudice was caused to the accused---Mere delay in dispatching recovered contraband to Chemical Examiner was not to make prosecution case doubtful---Psychotropic substances mentioned in Schedule to Control of Narcotic Substances Act, 1997, were not required to be subjected to calculation of percentage as required by S.3 of the Act---Legislature had deliberately excluded Clause (ZA) from S.3 of the Act for purpose of calculating percentage in liquid preparations, therefore, S.3 of the Act was not applicable in the case---Recovery of drug in powder form and its examination in liquid form as mentioned in report was of no consequence as Chemical Examiner had to examine substance according to permissible test and formula he wished to apply; therefore conversion of grams into millilitres did not result in violation of any rule of Central of Narcotic Substances (Government Analysts) Rules, 2001---Provisions of Control of Narcotic Substances (Government Analysts) Rules, 2001, were ordinarily directory in nature and not mandatory---Bail applications were decided on the basis of tentative assessment of material placed before Court and no exhaustive appraisal thereof was to be undertaken---Persons involved in immoral business of drugs were to be discouraged and Courts were not to come to their rescue by entertaining their bail petitions on academic questions or by giving them benefit of bail by adopting favourbale interpretation of statute--At bail stage, legality and technicality of procedure was not to be dealt with in depth for bail petition was only entertained on the basis of material available on record---Prosecution had prima facie fully established recovery of lethal drug from possession of accused and his case was covered by clause (c) of S.9 of Control of Narcotic Substances Act, 1997 and bar contained in S.51 of the Act, as to grant of bail to accused was fully attracted---Bail petition was dismissed.

Muhammad Ali v. The State 2002 SD 286 and Mst. Grana v. The State 2006 MLD 361 rel.

(b) Control of Narcotic Substances (Government Analysts) Rules, 2001---

----R. 4(2)---Control of Narcotic Substances Act (XXV of 1997)---Rules provided in Control of Narcotic Substances (Government Analysts) Rules, 2001, were directory and not mandatory, hence the same were not to control substantive provisions of Control of Narcotic Substances Act, 1997, nor the same were to be applied or interpreted in such a manner that express provisions of Control of Narcotic Substances Act, 1997 were frustrated.

Muhammad Ali v. The State 2002 SD 286 and Mst. Grana v. The State 2006 MLD 361 rel.

----Ss. 34, 35 & 47---Criminal Procedure Code (V of 1898), S.510, Proviso---Chemical Examiner's report---Report not strictly in accordance with provisions of Ss.34 & 35 of Control of Narcotic Substances Act, 1997---Applicability of S.510, Cr.P.C.---Scope---Section 47 of Control of Narcotic Substances Act, 1997 provided that provisions of Criminal Procedure Code, 1898 were applicable to trial before Special Court under Control of Narcotic Substances Act, 1997---Section 510, Cr.P.C. initially made report of Chemical Examiner admissible in evidence but through Law Reforms Ordinance, 1972, section 510, Cr.P.C. was amended by adding a Proviso to the said section whereby Court had got ample power to summon and examine the expert, if his report was dubbed as meagre, cryptic and incomplete---If the accused was dissatisfied with Chemical Examiner's report he might have summoned the Chemical Examiner and examined him in that respect.

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

----Ss. 34 & 47---Criminal Procedure Code (V of 1898), S.510---Federal Government's Notification No. S.R.O. 596(I)/97---Chemical Examiner not notified by Federal Government---Chemical Examiner's Report---Admissibility---Federal Government had issued Notification No.S.R.O..596(1)96 by virtue of which all Narcotics Testing Laboratories set up by Provincial Government had been declared to be Federal Narcotics Testing Laboratories for purpose of Control of Narcotic Substances Act, 1997---Chemical Examiner's report was admissible as per Scheme of S.47 of the Act, 1997 with S.510, Cr.P.C.

Tasuwwar Hussain v. The State 2001 PCr.LJ 879 rel.

Maqbool Elahi Malik assisted by Sh. Muhammad Umar Riaz and Sh. Muhammad Nawaz for Petitioner.

Syed Ehtesham Qadir Shah, Special Prosecutor for A.N.F. with Ayaz Ali Khan, Deputy Director (Pharmacist) A.N.F. (Punjab).

PCRLJ 2007 LAHORE HIGH COURT LAHORE 166 #

2007 P Cr. L J 166

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD AYUB----Petitioner

Versus

THE STATE----Respondent

Criminal Revision No.853 of 2006, decided on 2nd October, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 497, 498 & 513---Bail, grant of---Grant of bail subject to furnishing bank guarantee---Provision of S.513, Cr.P.C.---Scope and purpose---Court of Session while granting post-arrest bail to accused, directed him to execute bank guarantee as surety---Accused contended that said pre-condition was not in consonance with provisions of S.497, Cr.P.C.---Validity---Provisions of S.497, Cr.P.C. did not require such pre-condition, of depositing cash security and provisions of S.498, Cr.P.C. required the Court that amount of surety bond was not to be excessive---Court while dealing with application under Ss.497 & 498, Cr.P.C. had no power to insist upon deposit of cash security in connection with bail---Sections 497, 498 & 499, Cr.P.C., if read together, contemplated execution of a bond with sureties and a cash deposit or a bank guarantee was not required---Section 513, Cr.P.C., however, mentioned about deposit of a sum of money as surety in place of a surety bond but a careful examination of S.513, Cr.P.C. leads to conclusion that provisions of said section were for the convenience of accused who had been granted pre-arrest or post-arrest bail---Section 513, Cr.P.C. provided that if accused made an application, the Court might accord permission to him to deposit a sum of money or government promissory note of such amount as Court might fix in lieu of executing such bonds---Section 513 seemed to be enacted in the interest of accused who could be stranger in an area where case was registered or where he was unable to arrange for bail bonds or offer sureties---Accused, under such circumstances, if offered a cash deposit, Court was allowed in its discretion to accept that deposit instead of insisting upon execution of a bond---Court, on its own accord, however, was not to insist on deposit of a sum of money as surety or a bank guarantee---Order passed by the Court was set aside as being contrary to law---Revision petition was allowed.

Mst. Afshan Bibi v. The State 1998 SCMR 6 rel.

Ch. Nazir Ahmad Meo for Petitioner.

Khurshid Anwar Bhinder, Addl. A.-G. for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 169 #

2007 P Cr. L J 169

[Lahore]

Before M. Bilal Khan and Tariq Shamim, JJ

SHEHZAD KARIM----Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION LOHARI GATE, LAHORE and 2 others----Respondents

Writ Petition No.17887 of 2005, heard on 14th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 561-A & 265-K---Penal Code (XLV of 1860), Ss.123-A, 124-A, 147, 148 & 188---West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S.16---Anti-Terrorism Act (XXVII of 1997), S.7 & 23---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Disputed questions of fact---Jurisdiction of High Court---Scope---Petitioner/accused vide constitutional petition sought the quashment of case registered against him under Ss.123-A, 124-A, 147, 148 & 188, P.P.C., S.16, West Pakistan Maintenance of Public Order Ordinance, 1960 and S.7 of Anti-Terrorism Act, 1997---Petitioner contended; that F.I.R. registered against him was false and frivolous; that offence under S.124-A, P.P.C. was a non-cognizable offence which could not be investigated without prior permission of Magistrate and that offences under S.7 Anti-Terrorism Act, 1997 and S.16, West Pakistan Maintenance of Public Order Ordinance, 1960 were not attracted to the case of petitioner---Validity---Petitioner was nominated in F.I.R. and serious allegation had been levelled against him which he denied; thus, controversy essentially related to disputed questions of fact which were not to be adjudicated upon by High Court while exercising its constitutional jurisdiction---High Court in its constitutional jurisdiction Was not to resolve disputed questions of fact and ordinary course of trial by the Court was not to be deflected---Petitioner had already filed two applications before Trial Court, one under S.265-K, Cr.P.C. and another under S.23 of Anti-Terrorism Act, 1997, seeking transfer of case to regular Court, which were pending adjudication before the Court---Prayer made by petitioner for quashment of F.I.R. had become redundant---Petition was dismissed.

Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 rel.

Ch. Umer Hayat Sindhu for Petitioner.

Faisal Qazi, Asstt. A.-G. for Respondents.

Date of hearing: 14th September, 2006.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 171 #

2007 P Cr. L J 171

[Lahore]

Before Syed Sajjad Hussain Shah, J

Syed MAQSOOM HUSSAIN SHAH----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.920/B of 2006, decided on 27th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.420, 468; 471 & 34---Bail, refusal of---Accused along with his co-accused, who was his close relative, had deprived complainant from Rs.6,00,000 by showing him a plot which was not owned and possessed by his co-accused and by so doing had committed fraud on complainant---Offences for which accused was being charged though did not fall under prohibition clause of S.497, Cr.P.C., but as accused had deprived an innocent person from his life long earning he did not deserve any discretionary relief---Challan had been submitted in the Court against accused---Trial Court, however, was directed to conclude the trial expeditiously.

Basharatullah Khan for Petitioner.

Sardar Farhad Abbas for the Complainant.

Qazi Habib-ur-Rehman for the State with Mehboob, S.-I. with record.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 173 #

2007 P Cr. L J 173

[Lahore]

Before Muhammad Farrukh Mahmud and M.A. Shahid Siddiqui, JJ

MUHAMMAD AKRAM alias PEHALWAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.1450 and Murder Reference No.600 of 2001, heard on 28th September, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 324---Appreciation of evidence---Prosecution case revolved around the testimony of complainant who was uncle of deceased and other prosecution witness who was brother of deceased---Presence of prosecution witness at the spot was proved by the physical evidence, as he received fire-arm injuries during occurrence---Accused had also admitted presence of said prosecution witnesses---Both complainant and prosecution witness had no enmity or ill-will against accused so as to, depose falsely against him---Both said witnesses had given very consistent account of occurrence and had corroborated each other on all material points---During lengthy cross-examination, veracity of statement of said witnesses could not be shaken---F.I.R. having been lodged promptly, there was hardly any time for deliberation---Case was that of single accused whose identity was not in question---Ocular account was fully supported by medical evidence---Statement of Doctor who conducted post-mortem of deceased was in accordance with prosecution story---Statement of Doctor had fully supported and corroborated statements of prosecution witnesses regarding seat of injury---Empties recovered from the spot were wedded with pistol used as offensive weapon in the occurrence---Prosecution witness, during cross-examination had explained that though many people from the locality had gathered at the time of recovery from accused, but no one was ready to become witness---Case was not the one where Investigating Officer had wilfully avoided to join the public witnesses during recovery proceedings---Motive had come through the mouth of eye-witnesses and apparently there was no other motive behind the occurrence---Defence plea taken by accused did not tally with the tenor of cross-examination--Prosecution, in circumstances had proved its case against accused beyond doubt---Accused, who was armed with a pistol, through repeated fires having caused death of deceased who was eighteen years of age and caused serious injuries to injured prosecution, had no mitigating circumstances in his favour---Impugned judgment of the Trial Court was upheld and death sentence awarded to accused was confirmed---Murder Reference was answered in affirmative.

Masood Sadiq Mirza for Appellant.

Shahzad Hassan for the State (in Appeal No.1450 of 2001).

M. Aslarn Malik (in Murder Reference No.600 of 2001).

Rai Muhammad Zafar Bhatti for the Complainant.

Date of hearing: 28th September, 2006.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 179 #

2007 P Cr. L J 179

[Lahore]

Before Syed Sajjad Hussain Shah, J

ASAD MEHMOOD----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1009/B of 2006, decided on 5th October, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11---Bail, grant of---Further inquiry---Alleged abductee had not even stated in her statement under S.164, Cr.P.C. that accused had compelled her to enter into a contract of marriage with him---No allegation of Zina or attempt of Zina was levelled against accused---When no Zina was committed nor she was forced to enter into a contract of marriage and subsequent marriage with person other than the one with whom she was married, coupled with the fact that she was not recovered from the possession of accused, but she herself came back to her house before the arrest of accused, there existed reasonable ground to make out a case of accused one of further inquiry---Accused was behind the bars and no more required for further investigation---To keep accused behind the bars for an indefinite period would not serve any useful purpose---Accused was admitted to bail, in circumstances.

Sardar Iftikhar Hussain for Petitioner.

Qazi Habib-ur-Rehman Khan for the State with Muhammad Afzal S.-I.

Raja Altaf Hussain Satti for the Complainant.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 181 #

2007 P Cr. L J 181

[Lahore]

Before Tariq Shamim, J

GHULAM QADIR----Petitioner

Versus

Mst. AZRA BIBI and 5 others----Respondents

Writ Petition No.9804 of 2006, decided on 10th October, 2006.

Illegal Dispossession Act, (XI of 2005)---

----S. 7---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction---Scope---Interim order---Petitioner had challenged interim order passed by the Trial Court on application filed by respondent---Documents placed on record by respondent, had revealed beyond any doubt that respondent was owner in possession of the property in question who had been dispossessed by the petitioner---Even otherwise, said order had also revealed that valid and lawful reasons had been assigned by lower Court while exercising jurisdiction in the matter---Discretionary order passed by the Courts below, could not be challenged in exercise of constitutional jurisdiction of High Court until, it could be shown that same were whimsical, fanciful or arbitrary---Petitioner had not been able to point out any illegality or infirmity in the orders passed by the Courts below---Impugned orders could not be challenged in constitutional jurisdiction of High Court.

Ghulam Hussain and another v. Malik Shahbaz Khan 1985 SCMR 1925 rel.

Qazi Muhammad Arshad Bhatti for Petitioner.

Fazal Hussain for Respondent No.1.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 183 #

2007 P Cr. L J 183

[Lahore]

Before Syed Sajjad Hussain Shah, J

ZULFIQAR AHMAD----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.846/B of 2006, decided on 22nd September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.381 & 411---Bail, refusal of---Allegation against accused was that he hired a Pick-up owned by complainant and thereafter administering intoxicant to the driver snatched the vehicle and demanded amount for return of same---Said vehicle had been recovered on the pointation of accused---Accused was involved in so many other cases of similar nature---Accused in his statement made by him before Political Tehsildar, had admitted occurrence as narrated by complainant and he also admitted his involvement in other cases---Offence for which accused was charged, though did not fall under prohibitory clause of S.497, Cr.P.C., but on that sole ground, accused was not entitled for discretionary relief of bail as he was involved in so many other cases of similar nature and there was every likelihood that he would repeat same offence---During investigation, it was also found that accused had connection with the gangs of car snatchers and car lifters---Trial Court had rightly held accused a hardened criminal---Challan had been submitted in the Trial Court---Accused did not deserve any leniency---Bail application of accused was dismissed, in circumstances.

Raja Amjad Mahmood for Petitioner.

Miss Shamim Ch. for the State with Khan Badshah, S.-I. with record.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 185 #

2007 P Cr. L J 185

[Lahore]

Before Tariq Shamim, J

NAZIR AHMAD----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.399/J of 2005, heard on 9th October, 2006.

Penal Code (XLV of 1860)---

----Ss. 396 & 460---Appreciation of evidence---Sentence, reduction in---Compromise---Findings of the Trial Court in convicting and sentencing accused, were based on correct, elaborate and careful examination of record and did not suffer from any illegality on account of misreading and non-reading of any material piece of evidence---Legal heirs of deceased though had compromised with accused but offences under Ss.396 & 460, P.P.C. against accused were non-compoundable offences as provided in Sched-II of Cr.P.C.---Accused had already served out 2-1/2 years of his sentences---Legal heirs of deceased having forgiven the accused in the name of Almighty Allah, case was fit for reduction of sentences of accused---Convictions of accused were upheld, however, sentences were reduced to the period already undergone by him.

Yousaf Ali and others v. The State 2002 SCMR 1885 and Sultan Mehmood and another v. The State NLR 1986 Cr1. 343 rel.

Saif Ullah Khan for Appellant.

Ch. Muhammad Arshad Bajwa for the State.

Date of hearing: 9th October, 2006.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 187 #

2007 P Cr. L J 187

[Lahore]

Before Muhammad Farrukh Mahmud and M.A. Shahid Siddiqui, JJ

MEHR ALI and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.1748 and Murder Reference No.666 of 2000, heard on 25h September, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b), 337-F(iv) & 337-G---Appreciation of evidence---Matter was reported to the police after more than three hours of occurrence---Such delay was significant which had adversely affected prosecution case---Inquest report had revealed that it did not contain any F.I.R. number and weapons of offence had not been mentioned in its Column No.2---Post-mortem report revealed that dead body reached the hospital after five hours of registration of case---Contradiction existed between ocular account and medical report of Doctor who conducted post-mortem examination of dead body, regarding number and seats of injuries---Motive behind the occurrence as set down in the F.I.R., denoted hostility and enmity between the parties, which could be a very well reason for implicating accused---Recoveries of weapons did not link accused with the crime for the reasons that said weapons were not stained with blood and during recovery proceedings no one from the public was associated---Incident was an unwitnessed occurrence and prosecution case was not free from doubts---Impugned judgment passed by the Trial Court was set aside and accused was acquitted of all the charges and was released.

Aftab Farrukh for Appellants.

Sultan Ahmad Khawaja for the Complainant.

Maqbool Ahmad Qureshi for the State (in Criminal Appeal No.1748 of 2000).

Malik Suleman Awan for the State (in Murder Reference No.666 of 2000).

Date of hearing: 25th September, 2006.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 194 #

2007 P Cr. L J 194

[Lahore]

Before Muhammad Farrukh Mahmud and M.A. Shahid Siddiqui, JJ

GHULAM ABBAS---Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.1555 and Murder Reference No.682 of 2001, heard on 27th September, 2006.

Penal Code (XLV of 1860)---

---S. 302/34---Appreciation of evidence---Medical evidence had supported prosecution case only to the extent that deceased lost his life due to fire-arm injuries, but it did not lead to the assailant---Deceased was involved in a number of cases including those of murder and he had many accounts to settle and it could not be said, in circumstances that only accused had the motive against the deceased---Pistol of .30 bore allegedly recovered at the instance of accused, was never sent to Forensic Science Laboratory nor any empty was recovered from the spot---No independent witness was produced during trial to prove said recovery---Recovery evidence, in circumstances could not be used against accused---Prosecution's case being replete with doubts, impugned judgment passed ,by the Trial Court against accused was set aside---Accused was acquitted of all the charges against him and was released.

Parvez Iqbal Tarar for Appellant.

A.H. Masood for the State (in Criminal Appeal No.1555 of 2001).

Nazeer Ahmad Chaudhry for the State (in Murder Reference No.682 of 2001).

Date of hearing: 27th September, 2006.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 200 #

2007 P Cr. L J 200

[Lahore]

Before Tariq Shamim, J

SHAHBAZ----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.489/J of 2003, heard on 27th September, 2006.

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

----S. 302(b)---Appreciation of evidence---Suppression of facts---Injured prosecution witness neither appeared before Investigating Officer, nor was produced by prosecution at trial---Effect---Non-production of the most natural and material witness of occurrence would strongly lead to inference of suppression of material facts by prosecution.

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

----S. 302(b)-Appreciation of evidence---Weapon of offence---Determination---Only one lacerated firearm wound 20 cm x 14 cm into brain deep on upper right forehead was found on the dead body of deceased--Dimension of injury did not conclusively point out to any particular firearm weapon which could have caused such injury---Use of shotgun in the case was however excluded as in that case some pellets might have been recovered from the wound.

----S. 302(b)---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence--Joint recovery memo---Non-association of independent witnesses---During investigation, no crime empty was recovered from the place of occurrence and weapons recovered from both the accused were taken into possession through a joint recovery memo.---Such weapons were not sent to Forensic Science Laboratory---No specific injury was attributed to any of the accused and injured prosecution witness was neither produced before Investigating Officer nor before Trial Court---One accused was acquitted after trial, while the other was convicted and sentenced to life imprisonment, by Trial Court---Validity---No independent witness from locality was associated with the proceedings although, as per testimony of prosecution witnesses, several persons from the locality were present---Recovery of weapon was a joint recovery as the weapon of offence used by acquitted accused was also recovered from the same room, however from a different chest---Weapon allegedly recovered from the accused was not even sent to Forensic Science Laboratory for obtaining expert opinion, therefore, it was established beyond any doubt that prosecution had failed to prove the factum of recovery from the accused--Prosecution withheld the best evidence by not producing the alleged injured prosecution witness, without disclosing any plausible reason---No specific injury was attributed to any of the three nominated and four unknown accused in F.I.R.---Neither any crime empty was secured from the place of occurrence nor any led bullet was recovered to determine the exact kind of weapon used in crime and prosecution set up a weak motive against accused---Prosecution had failed to prove its case against accused beyond any shadow of doubt---Conviction and sentence awarded by Trial Court was set aside by High Court and accused was acquitted---Appeal was allowed in circumstances.

Malik Riaz Khalid Awan for Appellant.

Ch. Nazeer Ahmad for the State.

Date of hearing: 27th September, 2006.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 205 #

2007 P Cr. L J 205

[Lahore]

Before Muhammad Farrukh Mahmud and M.A. Shahid Siddiqui, JJ

AZHAR and 2 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.1187 and Murder Reference No.560 of 2001, heard on 25th September, 2006.

Penal Code (XLV of 1860)---

----Ss. 302, 337-A(ii), 337-L(ii) & 34---Appreciation of evidence---Complainant was father of deceased and other prosecution witness claimed to have received injuries during occurrence, but he being injured would not transform him into a truthful witness, especially when both said witnesses had materially contradicted each on the point of seat of injuries by one of co-accused; and their statements were also not supported by medical evidence---Abnormal delay of 19-1/2 hours in reporting matter with the police without any explanation for said delay, was fatal to prosecution case---F.I.Rs. which were not recorded at Police Stations were not free from suspicion---Sotas and hunter allegedly used by accused in occurrence, being not blood stained it could not be said that those were weapons which were used in the occurrence---Prosecution had not produced any independent evidence to prove motive which otherwise was vague---Presence of prosecution witnesses at the time of occurrence was not free from doubt---Impugned judgment passed by the Trial Court, was set aside and accused were acquitted of all charges against them and were directed to be released, accordingly.

Khalid Ikram Khatana and Bashir Abbas Khan for Appellants.

Ashfaq Ahmad Chaudhry for the State (in Criminal Appeal No.1187 of 2001).

Ms. Tasneem Amin for the State (in Murder Reference No.560 of 2001).

Date of hearing: 25th September, 2006.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 224 #

2007 P Cr. L J 224

[Lahore]

Before Tariq Shamim, J

GHULAM ALI and others---Petitioners

Versus

NASIRA MALIK and others---Respondents

Writ Petition No. 8687 of 2006, decided on 24th August, 2006.

(a) Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 7---Constitution of Pakistan (1973), Art.199---Constitutional petition---Illegal dispossession of complainant from property--Complaint, pendency of---Revenue record showing complainant to be owner in possession of property---Report submitted by police 'supporting such illegal dispossession---Failure of respondent to establish his title in property---Interim order of Court directing restoration of possession to complainant---Constitutional petition against such order---Maintainability---Impugned order being an interim order and not final order could not be challenged in constitutional jurisdiction of High Court---Impugned order not suffering from any jurisdictional error, High Court dismissed constitutional petition.

Abdul Majeed v. Noor Muhammad and 2 others PLD 2006 Lah. 649 rel.

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

----Art. 199---Interim order of Court below---Not challengeable in constitutional jurisdiction of High Court.

Abdul Majeed v. Noor Muhammad and 2 others PLD 2006 Lah. 649 rel.

Naseer Ahmad Sial for Petitioners.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 242 #

2007 P Cr. L J 242

[Lahore]

Before Ijaz Ahmad Chaudhry and Muhammad Farrukh Mahmud, JJ

LIAQAT ALI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.7-J of 2002 and Murder Reference No.338 of 2001, heard on 30th November, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Ocular version was provided by son of deceased, who being inmate of the house, his presence at the spot could not be doubted---Other prosecution witness, who though was neighbour and had friendly relations with complainant, but had no previous enmity or ill-will against accused so as to depose against him falsely---Identity of accused was also not in doubt as accused was married with sister of complainant---At the time of occurrence lantern was on and the inmates of the house were gossiping with one another---Both witnesses had given consistent, coherent, natural and trustworthy account of the incident---Intrinsic value of their evidence, could not be shaken during cross-examination---Complainant had no time to fabricate the story as the matter was reported to the police within two hours of the occurrence at the police station, which was at a distance of 10 Kms.---Statements of the eye-witnesses were fully supported by the medical evidence---No plausible reason was available on the record for substitution of a killer with an innocent person---Neither empties nor recovered pistol having been sent to Forensic Science Laboratory, said evidence could not be considered against accused---Prosecution having successfully proved its case against accused through ocular evidence, which was fully supported by medical evidence and corroborated by circumstances of the case, like lodging of F.I.R. without delay and motive, Trial Court had rightly convicted and sentenced accused---In absence of any mitigating circumstances in favour of accused, sentence awarded to accused could not be reduced---Judgment passed by the Trial Court was maintained and Murder Reference was answered in affirmative and death sentence was confirmed.

Mian Abdul Qayyum Anjum for Appellant.

Badar Munir for the State (in Criminal Appeal No.7/J of 2002).

A.H. Masood for the State (in Murder Reference No.338 of 2001).

Date of hearing: 30th November, 2006.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 257 #

2007 P Cr. L J 257

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

MUHAMMAD AKRAM----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.3600/B of 2006, decided on 23rd November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498--Penal Code (XLV of 1860), S.381---Pre-arrest bail, grant of---Accused, who was employee of the complainant, was considered to be expert in fish farming---Accused had started business of complainant, but he did not receive any salary or remuneration---F.I.R. was got registered against accused when he left the Farm of complainant---Contention of accused that he had been involved in the case with mala fide intention and ulterior motive by complainant could not be ruled out---Accused was granted ad interim pre-arrest bail, by Additional Sessions Judge, but despite he being on bail, was arrested and kept in illegal confinement for one day---Accused, in circumstances had been able to show mala fides not only on the part of the police, but also on behalf of complainant---Co-accused who had similar role, having been granted post-arrest bail, accused could not be denied, even concession of pre-arrest bail---Allegation against the accused was that 500 mounds of fish had been stolen by accused; it was not possible that accused without any transport, could steal such a huge quantity of fish---No witness of alleged occurrence was available on record---Delay of one year and one month in lodging of F.I.R.---Offence with which accused was charged, did not fall within the prohibitory clause of S.497, Cr.P.C.---Accused, in circumstances was entitled to concession of pre-arrest bail---Ad interim bail granted to accused was confirmed, in circumstances.

Muhammad Bilal Butt for Petitioner.

Malik Umer Humayun for the Complainant.

Sheikh Imtiaz and Muhammad Abid, A.S.-I. for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 268 #

2007 P Cr. L J 268

[Lahore]

Before Muhammad Akhtar Shabbir, J

MAMOONA SAEED----Petitioner

Versus

GOVERNMENT OF PUNJAB and others----Respondents

Writ Petition No.10474 of 2006, decided on 17th October, 2006.

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

----Art. 10(5)-Arrest and detention of a person---Safeguards---Grounds of detention---Limitation---Grounds of detention should be communicated within 15 days from such detention, which means that 15 days time has been allowed" by the Constitution---Such time is the maximum limit for supply of grounds of detention and it can be done even earlier than that period---Such requirement of the Constitution has to be kept in view at the time of detaining a person or dealing with the cases of detention.

(b) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3(6)---Constitution of Pakistan (1973), Art.10---Words "as soon as" appearing in S.3(6) of the West Pakistan Maintenance of Public Order Ordinance, 1960---Interpretation---Grounds of detention---Maximum limit---For providing grounds of arrest, provisions of Art.10 of the Constitution are attracted, which contemplate that communication of the grounds should be made within 15 days and it is the maximum limit of delay---Words "as soon as" appearing in S.3(6) of West Pakistan Maintenance of Public Order Ordinance, 1961, are to be interpreted or read in such a way that they are consistent with the requirements of the Constitution.

----Ss. 3 & 16---Constitution of Pakistan (1973), Arts.10 & 199---Constitutional petition---Preventive detention---Failure to provide grounds of detention---Despite detention of detenu for about two months, authorities, in the present case, failed to supply him the grounds of his detention---Authorities contended that the detention was not a punitive, but was a preventive detention to safeguard the life of the detenu---Validity---Communication/supply of grounds of detention was the essential requirement of Punjab Maintenance of Public Order Ordinance, 1961---Grounds of detention were the material ingredient upon which the authority relied to pass order of detention so it could be presumed that grounds of detention must precede order of detention, which would indicate that first there should be grounds in the form of material which was to be considered by the authority to pass the order of detention---Existence of grounds of detention was to be pre-supposed and it was essential that reason or ground for preventive detention should have been disclosed to the detenu himself so that he should decide whether he would like to stay in detention or should manage himself for his own safety---High Court declared such detention order as illegal and not sustainable under law, hence was quashed---Petition was allowed in circumstances.

Gulzar Ahmad v. District Magistrate and another 198 PCr.LJ 1790 and Arbab Akbar Adil v. Government of Sindl& through Home Secretary, Government of Sindh, Karachi PLD 2005 Kar. 538 rel.

(d) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----Ss. 3 & 16---Preventive detention---Detention order---Vague grounds of detention---Effect---If any of the grounds of detention is vague, the whole detention order would be unsustainable in law.

Ghulam Ahmed v. Government of Sindh and another PLD 1988 Kar. 237 and Ahmed Fahim Mughal v. Muhammad Saleem Khan, District Magistrate and D.C. (South), Karachi and 2 others PLD 1990 Kar. 474 rel.

Nazeer Ahmad Ghazi assisted b 7 Rafique Javed Butt, Ch. M. Zafar Iqbal and Anas Bin Ghazi for Petitioner.

Muhammad Hanif Khatana, Addl. A.-G. for Respondents.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 281 #

2007 P Cr. L J 281

[Lahore]

Before M. Bilal Khan and Tariq Shamim, JJ

MUHAMMAD AKHTAR----Appellant

Versus

THE STATE and 4 others----Respondents

Intra-Court Appeal No.104 of 1998 in Writ Petition No.22817 of 1997, heard on 6th November, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b), 316 & 315---Criminal Procedure Code (V of 1898), S.544-A---Constitution of Pakistan (1973), Art.199---Law Reforms Ordinance, 1972, S.3(2)---Intra-Court appeal---Amount of Diyat awarded by High Court while deciding criminal appeal---Constitutional petition against finding of High Court in criminal appeal---Maintainability---Petitioner/accused was convicted by Trial Court under S.302(b), P.P.C. and was sentenced to imprisonment for life as Ta'zir with direction to pay Rs.30,000 as compensation to legal heirs of deceased---High Court, in appeal filed thereagainst, held that as offence committed by petitioner/accused fell under S.315, P.P.C. punishable under S.316, P.P.C. therefore, conviction under S.302(b), P.P.C. and sentence of imprisonment for life as Ta'zir awarded to petitioner was not maintainable---Conviction of petitioner was converted from S.302(b) to S.316, P.P.C. and he was sentenced to rigorous imprisonment for 10 years as Ta'zir with direction to pay Diyat amount of Rs.1,89,906 to legal heirs of deceased---Petitioner filed constitutional petition to the effect that he be released from custody after completion of term of his sentence and Chairman of Provincial and Central Baitul Mal be directed to pay Diyat amount to legal heirs of deceased keeping in view financial position of petitioner---Constitutional petition was dismissed by High Court and petitioner filed Intra-Court Appeal against finding of single Judge---Validity---Amount of Diyat having been awarded by the High Court, constitutional petition was not competent against High Court.

Mian Jamal Shah v. Member Election Commission Government of Pakistan and others PLD 1966 SC 1 rel.

Nazeer Ahmad Ghazi for Appellant.

Faisal Ali Qazi, A.A.-G. for the State.

Date of hearing: 6th November, 2006.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 287 #

2007 P Cr. L J 287

[Lahore]

Before Muhammad Jehangir Arshad, J

RIAZ HUSSAIN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.2664/B and Criminal Revision No.300 of 2006, decided on 23rd September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(b)---Penal Code (XLV of 1860), Ss.302, 364 & 34---Constitution of Pakistan (1973), Arts.9, 10 & 15---Bail, cancellation of---Abscondence of co-accused---Cancellation of bail, of remaining accused on apprehension of complainant about their abscondence---Fundamental rights guaranteed by the Constitution---Scope---Accused/petitioners were hooked under Ss.302, 364 & 34 of P.P.C. and they were granted bail by Trial Court---One of the accused having absconded, complainant raised apprehension before Trial Court that remaining accused might also abscond one by one---Trial Court withdrew concession of bail granted to accused---Contentions of accused were that order of cancellation of bails was passed in absence of counsel of accused; that such order could not be passed on bare apprehension of complainant and that accused were not to be penalized for fault of co-accused---Validity---Bail once granted to an accused could only be cancelled under S.497(b), Cr.P.C. and jurisdiction so conferred on High Court and Sessions Court was only to be exercised after notice to accused and also affording him not only reasonable but full opportunity of hearing, for in case of cancellation of bail, Court was to deprive a person of his right of security and freedom to move which was protected by Arts.9 & 15 of the Constitution---Article 10 of the Constitution provided sufficient safeguards against arrest without notice and recognized the right of accused of consultation and defence by a legal practitioner of his choice; and protection of such rights was fundamental duty of Courts---Courts were to ensure that no person be deprived of any of said rights except in due course of law---Trial Court passed order not only in haste but in clear violation of Arts.9, 10 and 15 of the Constitution and in colourable exercise of jurisdiction---No person was to be punished for fault of another unless there was material on record to conclude that either absconder was absent with connivance of co-accused or co-accused was guilty of harbouring absconding accused---No accused could be kept in jail as a hostage for arrest of another co-accused---Every citizen had fundamental right that not only he was to know his guilt or fault but he was to be provided opportunity of hearing before any punitive action was taken against him---No material was available on record that accused/petitioners tried to tamper with evidence, committed an act of violence against Prosecution witnesses, repeated offence or created obstacles in the way of investigation by misusing concession of bail---Order of cancellation of bail was passed without any justification by Trial Court---Petition was allowed and order passed by Trial Court was set aside.

Abdul Khaliq v. Khan Bahadur and another PLD 1996 SC 176; Pervaiz v. The State and others 2004 PCr.LJ 1318; Syed Muhammad Roban Shah and others v. The State and others 2005 PCr.LJ 319; Roshan Din and others v. Mst. Basso 2002 Cr.LJ 26 and Abdul Qadeer v. Muhammad and another 1976 PCr.LJ 1203 ref.

Usman Tariq Butt and Syed Shamim Haider Zaidi for Petitioners.

Chaudhry Pervaiz Aftab as Amicus Curiae.

Sardar Zafar Ahmad Lond for the Complainant.

Rao Muhammad Atif Nawaz for the State with Ijaz Ahmad, S.-I. with record .

PCRLJ 2007 LAHORE HIGH COURT LAHORE 295 #

2007 P Cr. L J 295

[Lahore]

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

ALLAH DAD alias DADI----Appellant

Versus

THE STATE----Respondent

Criminal Appeals Nos.363, 384 and Murder Reference No.516 of 2000, decided on 10th January, 2005.

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

----Ss. 20(1) provisos 1 & 2, 10(3) & 11---Criminal Procedure Code (V of 1898), S.410--Penal Code (XLV of 1860), Ss.302(b) & 458--Offences committed under Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and P.P.C.---Appeal against conviction and sentence passed by Sessions Court filed in High Court---Maintainability---Jurisdiction of Federal Shariat Court in offences committed under Offence of Zina (Enforcement of Hudood) Ordinance 1979 and any other law---Scope---Both the accused were convicted under S.302(b), P.P.C. and Ss.10(3) & 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and one was sentenced to death and life imprisonment whereas other was sentenced to life and 20 years imprisonment on two counts---Accused filed appeals before High Court instead of Federal Shariat Court---Accused contended that since main offence was Qatl-i-Amd under S.302, P.P.C. and death sentence had been passed, therefore, appeals could be heard by High Court---Validity---Appeals filed by accused before High Court were not maintainable as S.20 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, provided that provisions of Cr.P.C. were to apply mutatis mutandis in respect of cases under the Ordinance, 1979 and if it appeared in evidence that offender had committed a different offence under any other law, he might, if Court was competent to try that offence and award punishment thereof, be convicted and punished for that offence, provided that an offence under Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was to be triable by a Court of Session and appeal thereagainst was to lie to Federal Shariat Court---Section 20(1), proviso (2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 provided that "an offence punishable under the Ordinance, was to be triable by a Court of Session" and an appeal from an order of Court of Session was to lie to Federal Shariat Court---Proviso-1 of subsection (1) of S.20 permitted competent Court to try offence under any other law also and award punishment thereunder---Under Proviso-1 of subsection (1) of S.20, trial and conviction by Sessions Court of any offence, inter alia, under P.P.C. was to become an offence punishable under the Ordinance, for the purpose of appeal to Federal Shariat Court---Such was the only reasonable interpretation of two provisos to subsection (1) of S.20 of the Ordinance---Appeals and murder reference were returned to accused for their submission before Federal Shariat Court.

Fazal Din v. Taj Din PLD 1983 FSC 33; Taj Din v. The State 1984 SCMR 506 and Muhammad Abbas and another v. The State 1984 SCMR 129 rel.

Muhammad Naeemm Khan for Appellants.

Ch. Muhammad Masood Sabir for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 301 #

2007 P Cr. L J 301

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

IMRAN alias IMRANU----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.1751 and Murder Reference No.727 of 2001, heard on 23rd November, 2006.

Penal Code (XLV of 1860)---

----Ss. 302, 148, 149 & 109---Appreciation of evidence---On the statement of eye-witnesses, four of accused, who were assigned similar role, had been acquitted and no independent corroboratory evidence was available against accused---Both the witnesses who were closely related inter se and deceased, resided at a place which was at a distance of 300/400 yards from the spot and it was stated in the F.I.R. that enmity existed between complainant party and accused---Prosecution witnesses had made dishonest improvement in their statements before the Trial Court---Very basis of presence of prosecution witnesses at the spot was not free from doubt---Statements of both witnesses were contradicted by medical evidence---Case of accused was at par with that of acquitted accused and his role could not be distinguished from them---Prosecution witnesses had been disbelieved qua acquitted accused---Appeal filed against acquittal of said co-accused had already been dismissed--Recovery of pistol at the instance of accused, would not advance prosecution case for the reason that recovery was effected from a Dera which was accessible to other persons as well---No empty was recovered from the spot---Impugned judgment of the Trial Court, was set aside and accused was acquitted of all the charges and was directed to be released from jail.

Malik Suleman Ahmad Awan for Appellant.

Ch. Fayyaz Ahmad for the Complainant.

Ch. Muhammad Nazir for the State (in Criminal Appeal No.1751 of 2001).

Ch. Imtiaz Ahmad for the State (in Murder Reference No.727 of 2001).

Date of hearing: 23rd November, 2006.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 313 #

2007 P Cr. L J 313

[Lahore]

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

MUDASSAR MUNAWAR----Appellant

Versus

THE STATE----Respondent

Criminal Appeals Nos.1431 of 2002, 2057 of 2003 Criminal Revisions Nos. 1047 of 2002 and 266 of 2003, heard on 29th November, 2006.

Penal Code (XLV of 1860)---

----Ss. 308 & 394---Appreciation of evidence---Complainant had given no reason as to why he was going along with prosecution witness at relevant time, while house of complainant was four or five kilometers from the place of occurrence and house of prosecution witness was 11 kilometers from house of complainant---No identification parade was held in the case---F.I.R. showed that one shot was fired by assailant, but from the spot five crime empties were taken into possession---Eye-witnesses in order to toe the case of Investigator, had made dishonest improvements before the Trial Court and stated that co-accused fired five shots---Conduct of eye-witnesses also negated their presence at the spot---Presence of both eye-witnesses at the spot was very doubtful--Name of one of the witnesses did not find mention in the F.I.R., but-he was shown to have identified dead body of deceased in the hospital---Both eye-witnesses stated before the Trial Court that they did not know the names of accused persons prior to 26-8-2001, but Investigating Officer, while preparing rough plan on 25-8-2001, had given names of two appellants as accused---Crime empties were taken into possession from the spot on 25-8-2001, co-accused was arrested one day after that along with a .12 bore gun, but parcel of empties and that of gun were received in the office of Fire-arms Expert on 1-9-2001---Positive report in that respect, had lost its significance, in circumstances---F.I.R. was recorded after due deliberation and consultation; eye-witnesses were not present at the spot, but were cooked up later on being closely related to deceased and story of prosecution was full of doubts---Conviction and sentence awarded to accused by the Trial Court against accused, were set aside and accused were released from the jail.

Saifal Malook for Appellant.

Zubair Saeed Awan and Imran Aziz Qureshi for Respondents.

Badar Munir Malik for the State.

Date of hearing: 29th November, 2006.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 326 #

2007 P Cr. L J 326

[Lahore]

Before M. Bilal Khan, J

Mian ZAHOOR ELAHI----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous Nos.7825/B and 8923/B of 2006, decided on 13th November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.420, 468 & 471---Pre-arrest bail, refusal of---Permission from a particular ministry or government official, was not a sine qua non for registration of F.I.R.---F.I.R. in the case had disclosed commission of cognizable offences and for that reason alone no fault could be found with registration of F.I.R.---Record had revealed that Deputy Superintendent of Police, who had conducted investigation in the case, had found accused to be guilty---Record showed that Law Minister had intervened on behalf of accused and had asked investigating D.S.P. to harmonize his investigation---Filing of a civil suit could not bar criminal prosecution where serious offences under Ss.420, 468 & 471, P.P.C. were prima facie spelt out in the F.I.R.---Counsel for accused had not been able to point out any special feature of the case entitling accused to grant of extraordinary concession of pre-arrest bail---Prerequisites for such concession i.e. malice, either on the part of complainant or the police, were conspicuously missing in the case---Police appeared to have been siding with accused---Bail petitions were dismissed and interim anticipatory bail allowed to accused, was recalled.

Ikramuddin and 4 others v. The State and another 1984 PCr.LJ 2736; Abdul Karim v. Umar Hayat and others 1986 PCr.LJ 97; Azizullah and another v. The State 1997 PCr.LJ 135; Muhammad Ameen v. Master Bashir Ahmad and others 2006 SCMR 969 and Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192 ref.

Muhammad Ghani for Petitioners except Yar Zahoor (in Criminal Miscellaneous Nos.7825/B and 8923/B of 2006).

Athar Ali Sheikh and Abdul Salam Sindhu for the Complainant.

Tariq Khan for the State with Muhammad Arif S.-I.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 333 #

2007 P Cr. L J 333

[Lahore]

Before Tariq Shamim, J

MUHAMMAD ARIF----Appellant

Versus

THE STATE----Respondent

Criminal Appeals Nos.811, 678 and Criminal Revision No.398 of 2002, heard on 13th October, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b)/148 & 149---Appreciation of evidence---Presence of prosecution witnesses at the spot at relevant time had fully been proved---Accused was the brother-in-law of proclaimed offender and on account of close relationship between the two and their long-standing enmity with the complainant side; his participation in the occurrence in support of proclaimed offender, could not be doubted---Contention that accused had been falsely implicated in the case due to close relationship with proclaimed offender, carried no weight---Occurrence was an outcome of long-standing enmity between the parties---Motive as alleged by prosecution was not denied by the defence and enmity between the parties was an admitted fact---Ocular evidence was fully supported by medical evidence as injuries mentioned on the body of deceased tallied with ocular account to the extent of number of accused, weapons used and manner in which said injuries were sustained by deceased---No inconsistency was found between the ocular account and medical evidence---Weapon of offence though could not be recovered from accused, but one crime-empty of .8 mm. rifle was recovered from the spot by the police, which had established his presence at the spot-Prosecution had proved ocular account to the extent of accused which was duly corroborated by the motive, medical evidence and recovery of crime empty---Statements of the eye-witnesses could not be discarded merely on the ground that they were related inter se and were inimical towards accused---Accused and other co-accused had a motive to launch an attack on the complainant party as a result of which deceased was murdered---Appeal of accused was dismissed and conviction and sentence awarded to accused by the Trial Court by impugned judgment, was maintained.

Pervez Iqbal Tarar for Appellant.

Ch. Imtiaz Ahmad for the State.

2007 P Cr. L J 384

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUBASHAR AHMED----Petitioner

Versus

S.H.O., POLICE STATION SADDAR, GUJRANWALA and 4 others----Respondents

Writ Petition No.8069 of 2006, decided on 16th November, 2006.

Police Order (22 of 2002)---

----Arts. 73 & 152---Penal Code (XLV of 1860), S.109/34---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Arguments of counsel for petitioner was that inquiry under Art.152 of Police Order, 2002 could be held by Police Complaints Authority, which was provided under Art.73 of Police Order, 2002---Report prepared by Additional Advocate-General, had shown that matter was never referred to the Police Complaints Authority, but was directly entertained by D.I.-G. and thereafter, it trickled down to S.H.O. concerned---Additional Advocate General, had conceded to the point of counsel for petitioner that apparently flaw was obvious in the proceedings taken by respondents in view of provision of Art.152 to be read with Art.73 of Police Order, 2002---F.I.R. was quashed, in circumstances.

Muhammad Irfan Malik for Petitioner.

Ch. Khurshid Anwar Bhinder, Addl. A.-G.

Muhammad Ashraf, S.-I,

PCRLJ 2007 LAHORE HIGH COURT LAHORE 385 #

2007 P Cr. L J 385

[Lahore]

Before Muhammad Muzammal Khan, J

HUSNAIN MOHYUDDIN----Petitioner

Versus

THE STATE and 2 others----Respondents

Writ Petition No.2584 of 2006, decided on 7th November, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 157(2) & 516-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of vehicle---Petitioner lodged Rapt alleging that his vehicle was stolen by an unknown person---Police took into custody said vehicle and initiated proceedings under S.157(2), Cr.P.C.---Both petitioner and respondent, filed their separate applications for custody of vehicle before Illaqa Magistrate who dismissed both applications---Both parties filed their separate criminal revisions, before Additional Sessions Judge where respondent succeeded and custody of vehicle was ordered to be given to him---Validity---Vehicle in question was recovered from a relative of respondent, who had obtained Route Permit from the Transport Authority and he was also in possession of original registration book of vehicle which was transferred in his name by Excise and Taxation Office concerned---Claim of petitioner that he was owner of vehicle, documents of which were stolen and thereafter vehicle itself was removed by respondent unauthorizedly/without his concurrence, required determination after recording of evidence and holding a full-fledged trial, which course was not permissible in constitutional petition---Respective stance of parties regarding their claim of ownership for which respondent had already filed a civil suit, would be determined by Civil Court---Additional Sessions Judge had taken case of safe custody of vehicle by respondent by requiring him to furnish surety bond---Impugned order had revealed that controversy was correctly put to rest without committing any error of law/facts---No case for interference in constitutional jurisdiction of High Court was made out---Even otherwise lawful decision within the ambit of conferred jurisdiction, could not be substituted in constitutional petition.

Raja M. Farooq for Petitioner.

Rana Zahid Ali for Respondents.

Mudassar Khalid Abbasi, A.A.-G. along with M. Arif A.S.-I.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 388 #

2007 P Cr. L J 388

[Lahore]

Before Khawaja Muhammad Sharif, J

Dr. MUHAMMAD RAMZAN AZAM----Petitioner

Versus

ARIF ALI and 2 others----Respondents

Criminal Miscellaneous No.9334/CB of 2006, decided on 24th November, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 497(5) & 498---Penal Code (XLV of 1860), Ss.419, 420, 467, 468, 471 & 489-F---Bail, cancellation of---No role whatsoever was attributed to co-accused in whole of the F.I.R. and investigation---Application for cancellation of bail filed by petitioner/complainant to the extent of co-accused, was dismissed---Prosecution evidence revolved around accused who was main culprit in the case---Accused went to petitioner/complainant and asked him to purchase plot in question by introducing another co-accused as actual owner of plot in question---Accused was the person who had issued cheque to complainant, but when complainant went to get said cheque encashed, he was told by the Bank that account of accused had been closed---Accused was granted bail before arrest---Validity---Consideration for grant of bail before arrest was totally different from bail after arrest---Trial Court had granted bail to said accused on surmises and conjectures---No case for grant of bail before arrest having been made out to the extent of accused, application for cancellation of bail to his extent was accepted and bail granting order was recalled accordingly.

PLD 2002 Lah. 164 rel.

Ch. Muhammad Rafique-IV for Petitioner.

Ch. Muhammad Hands Khatana, Addl. A.-G. along with M. Nazir Awan S.-I.

M.M. Alam for Respondent No.1.

Ms. Bushra Qamar for Respondent No.2.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 390 #

2007 P Cr. L J 390

[Lahore]

Before M. Bilal Khan and Tariq Shamim, JJ

MUHAMMAD RAZZAQ----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.240, Criminal Revision No.125 and Murder Reference No.471 of 1999, decided on 8th November, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 109, 148 & 149---Appreciation of evidence---Sentence, reduction in---Chance encounter---Medical evidence in conflict with ocular account---Motive taken as double-edged weapon---Death caused by single fire-shot---Fire not repeated---Longstanding enmity between the parties---Accused/appellant along with co-accused allegedly committed murder of complainant's brother with single five-arm shot---Motive as alleged in F.I.R. was that there was longstanding enmity between accused and complainant parties, owing to which accused committed murder of deceased---Trial Court, while acquitting co-accused, convicted accused/appellant and sentenced him to death---Accused contended that it was a chance meeting and there was no pre-meditation on the part of accused to commit murder of deceased; that accused had fired at deceased in exercise of right of self-defence; that eye-witnesses account was belied by post-mortem report which revealed blackening and tattooing on the body of deceased and that it was a case for awarding of lesser penalty and not extreme penalty of death---Validity---Both accused and complainant parties were locked in criminal litigation since long and there was continuous enmity between the parties---Motive being a double-edged weapon could provide reason for commission of crime and, on the other hand, it could also be a reason to charge accused falsely on suspicion by relative of deceased---Motive, in the case, was not denied by either side, hence, the same stood proved---As to place of recovery of crime empties, the stand taken by eye-witnesses was contrary to testimony furnished by Investigating Officer---Testimony of Investigating Officer was, however, neither supported by any independent source nor there was any denial of the fact that he had relationship with accused party---Investigating Officer, as it appeared, had made a concerted effort to shift recovery of crime empties from actual place of occurrence to another place---Investigating Officer was declared hostile witness at trial for deliberately extending concession to accused---Testimony of such witness was neither credible nor free from doubt---Prosecution case and defence plea had to be taken in juxtaposition with each other so as to determine which one of the two was nearer to truth---Fact that injury had been inflicted to deceased by accused/appellant was not denied; however, controversy which was to be resolved was as to whether the injury received by deceased was caused in the manner stated by eye-witnesses or as asserted by accused/appellant, that he had fired in self-defence---Prosecution story could not be believed in totality, as according to eye-witnesses, accused had fired at witnesses and deceased when they were inside the jeep; but no marks of fire shots were found on the jeep---Site-plan showed that at the time when accused fired at deceased, the latter was at a distance of about 35 feet from the former, hence the fire of accused was not to have caused blackening and burning as revealed by post-mortem report---Plea taken by the accused also did not find support from any independent source---Witness whose testimony could have provided support to defence plea was Investigating Officer who had been declared hostile---Once an accused had taken a specific plea, it was for him to substantiate such plea at the trial, but, in the present case, accused failed to prove the same---Both sides did not come out with full truth at trial---Presence of other accused mentioned in F.I.R. could not be established by prosecution beyond any reasonable doubt before Trial Court---Keeping prosecution and defence versions in juxtaposition with each other, it appeared that prosecution version was nearer to the truth---Accused, however, had not come prepared to commit the murder of deceased as there was nothing in evidence to suggest that he was aware that complainant party had gone to a certain place and while returning would take a specific route, where occurrence had taken place---It could be therefore, said that murder of deceased was not the result of pre-planning on the part of accused and this aspect was further supported by the fact that co-accused who had allegedly accompanied the accused/appellant at the time of occurrence were acquitted by Trial Court as their presence on the spot was not found free from doubt---Had investigation been conducted in honest manner truth would have come out---Admittedly, at the time of occurrence, accused/appellant was armed with fire-arm weapon but he did not repeat fire which aspect had to be taken into account---Occurrence appeared to be the result of chance meeting between both sides and what actually transpired between accused and deceased immediately before the occurrence was shrouded in mystery---Sentence of death awarded to accused/appellant was converted into imprisonment for life.

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 rel.

Azam Nazeer Tarar for Appellant.

Syed Zahid Hussain Bokhari for the Complainant.

M.A. Dogar for the State.

Date of hearing: 11th September, 2006.

2007 P Cr. L J 413

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD RAMZAN alias SHAMMA----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.9521/B of 2006, decided on 8th December, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Bail, grant of---Further inquiry---F.I.R. in the case was lodged with a delay of 9 days without any explanation for said delay---Medicolegal report and report of Chemical Examiner did not confirm that sodomy was committed by accused with the victim---One of prosecution witnesses had sworn an affidavit to the effect that he had not witnessed incident and that his name had wrongly been introduced as witness in the case---Regarding other prosecution witness a criminal case was pending between accused and said other prosecution witness---Possibility of false implication of accused could not be ruled out, in circumstances---Story that accused had kept the victim with him for 7 days, but in the meanwhile no report was lodged with the police seemed to be improbable---Except for the statement of complainant no other incriminating evidence was available on record to prima facie connect accused with the commission of crime---Accused was about 47 years of age having three daughters and two sons residing with his parents in a joint family system---Veracity of the statement of complainant which was not supported by medical evidence would be seen by the Trial Court after conclusion of the trial---Accused, for the time being had succeeded in making out a case of further inquiry---Mere submission of challan into the Court was not a ground for refusal of bail to accused who had succeeded in making out a case of further inquiry and bail could not be withheld as a punishment---Accused was behind the bars since 19-9-2006 without any progress in the trial and his further detention in the jail, would serve no useful purpose to the prosecution in any manner---Accused was admitted to bail, in circumstances.

Mushtaq Ahmad Mohal for Petitioner.

Hassain Qadar Shah for the Complainant.

Syed Tahir Abbas Rizvi, Asstt. Prosecutor-General for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 416 #

2007 P Cr. L J 416

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD YAQOOB and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.1060, Criminal Revision No.635 and Murder Reference No.446 of 1999, heard on 7th November, 2006.

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

---Ss. 302, 148 & 149---Criminal Procedure Code (V of 1898), S.172(2)---Appreciation of evidence---Case of two versions---Scope---Crime weapon not sent to Forensic Science Laboratory---Effect---Legal heirs of aggressor deceased not entitled to Diyat---Principles---Complainant had alleged in F.I.R. that he along with his two brothers proceeding to meet his relative when accused/appellants accompanied by three other co-accused including mother of accused who raised Lalkara committed murder of deceased with fire-arms---Motive as alleged in F.I.R. was that prior to occurrence while playing cricket a quarrel had taken place between deceased and accused/appellant---Principal accused/appellant took plea that it was deceased who had attacked his house and fired at him and while exercising his right of self-defence he committed murder of deceased---Trial Court, while acquitting co-accused, sentenced one accused to death and the other to life imprisonment---Both accused were directed to pay Diyat amount to legal heirs of deceased---Validity---Being a case of two versions, both versions were to be put in juxtaposition in order to ascertain which of them was true or closer to truth---Story of taking deceased to relative of complainant for consultation as to higher education of deceased appeared to be carved out to establish presence of prosecution witnesses at the time of occurrence---Complainant party. had thrown a very wide net by involving five persons of a family including mother of accused on pretext that with premeditation they had assembled in the house in order to launch attack on deceased---F.I.R, mentioned that deceased had given beating to accused but there was no medical evidence of such beating nor it was stated in F.I.R. that accused received serious injuries at the hands of deceased--Quarrels arising between players were normally settled by their common friends immediately---Perusal of statement of doctor left impression that injuries attributed to both accused/appellants could be the result of one fire-shot of .12 bore gun---No independent witness or player was produced before Trial Court in support of motive---Investigating Officer had stated that occurrence had taken place on account of quarrel over cricket but the same took place on account of immoral character of deceased---Recovery of guns could not be used for benefit of prosecution case as the guns were not gent to Forensic Science Laboratory nor any empty was recovered from the spot---Being a case of two versions, High Court in the interest of justice, while exercising its powers under S.172(2), Cr.P.C. went through case diaries---Deceased was found to have opened attack at the house of accused who while exercising his right of self-defence killed the deceased---Conviction of one accused/appellant was altered to offence under S.302(c), P.P.C. and his sentence was reduced to 10 years imprisonment---Other accused/appellant was acquitted of all charges---Order of Trial Court as to payment of Diyat was set aside--Deceased being aggressor, therefore, his legal heirs were not entitled to Diyat.

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

----S. 172(2)---Penal Code (XLV of 1860), Ss.302, 148 & 149---Case of two versions---High Court's power to refer to case diaries---Scope---Being a case of two versions, High Court, in the interest of justice, while exercising its powers under S.172(2), Cr.P.C., went through case diaries prepared by Investigating Officer/Deputy Superintendent Police and it was found that deceased, who was armed with .7 mm rifle, initiated attack and resorted to firing---Bullets hit on walls, doors and house and shutters of shops of accused who thereafter fired in his self-defence---Investigating Officer's findings were not based on his opinion alone but the same were based on recording of evidence and visiting the spot---Undeniably none of the fires hit the accused who according to defence plea was alone in the house---Defence plea was not only more plausible but was also supported by circumstances of the case---Accused exercised his right of self-defence under strong apprehension that he would not be spared by deceased---Conviction of one accused/appellant was altered to offence under S.302(c) and his sentence reduced to 10 years' imprisonment---Other accused/appellant was acquitted of all charges.

Meraj Begum v. Ejaz Ahmat and others PLD 1982 SC 294 rel.

----Blackening and tattooing were to be absent if fire was caused from distance of more than six feet---Greater the distance of projectile, the wider was to be the range of dispersion of pellets in case of shotgun.

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

----S. 544-A---Diyat---Entitlement---Legal heirs of deceased, who were aggressors, were not entitled to Diyat.

Ch. Naseer Ahmad Bhutta and Zahid Sultan Khan for Appellants.

Ch. Riasat Ali Khan for the Complainant.

Malik Badar Munir for the State (in Criminal Appeal No.1060 of 1999).

Malik Muhammad Suleman Awan for the Complainant (in Criminal Revision No.635 of 1999).

A.H. Masood for the State (in Murder Reference No.446 of 1999).

Date of hearing: 7th November, 2006.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 426 #

2007 P Cr. L J 426

[Lahore]

Before Abdul Shakoor Paracha and Syed Sajjad Hussain Shah, JJ

MITHA KHAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeals No.199 and 224 of 2003, heard on 27th September, 2006.

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

----Ss. 9(c), 25 & 48---Appreciation of evidence---Sentence, reduction in---No material contradiction existed either in prosecution version as given in F.I.R. or deposition made by prosecution witnesses, whose statements had been reappraised---Said prosecution witnesses were cross-examined, but nothing material had been elicited from their statements---Submission of counsel for accused that recovery had been effected in violation of S.103, Cr.P.C., was devoid of any force as provisions of S.25 of Control of Narcotic Substances Act, 1997, which was a special statute, had specifically excluded application of S.103, Cr.P.C.---Police officials were equally competent witnesses as were private witnesses and their testimony could not be discarded merely for the reason that they were police employees---Evidence of recovery in respect of quantity of narcotic substance recorded and for sending it for chemical analysis, was consistently established by prosecution witnesses---Report of Chemical Analyst in respect of substance was positive---Accused, in circumstances had failed to make out a case for acquittal---Accused, however, were first offenders and had no previous record---Sentence awarded to accused by the Trial Court, was reduced to rigorous imprisonment for ten years from life imprisonment whereas payment of' fine was maintained.

Zafar Ullah Salary for Appellant.

Mukhtar Ahmad Gondal for the State.

Date of hearing: 27th September, 2006.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 430 #

2007 P Cr. L J 430

[Lahore]

Before Tariq Shamim, J

MUHAMMAD AMJAD alias ANJOO----Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, FEROZEWALA, DISTRICT SHEIKHUPURA and another----Respondents

Writ Petition No.10185 of 2006, heard on 16th November, 2006.

Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan (1973), Art.199---Constitutional petition---Determination of age of accused---Petitioner/accused who claimed to be juvenile at the time of occurrence; moved application for determination of his age---Medical Board constituted with the orders of the Trial Court, opined that age of petitioner on date of occurrence was about 17/18 years---Trial Court, however despite receipt of report of Medical Board vide impugned order, instead of deciding question of Juvenility or otherwise of petitioner, ordered recording of prosecution evidence and the issue of juvenility was postponed to be decided at the time of final adjudication of the trial---Trial Court through impugned order proceeded to record prosecution evidence without first deciding question of juvenility or otherwise of petitioner---Course adopted by the Trial Court was contrary to the law as the issue regarding juvenility or otherwise of accused/petitioner, had to be determined first before proceeding with the trial---Impugned order was set aside with direction to decide question of juvenility or otherwise of petitioner first and then to proceed with the case.

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

Muhammad Shabbir Ahmed Minhas for Petitioner.

Muhammad Arif Bhinder, Addl. A.-G. for Respondents.

Date of hearing: 16th November, 2006.

2007 P Cr. L J 467

[Lahore]

Before Hasnat Ahmad Khan, J

RASHEED alias SHEEDA and another-Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.3013/B of 2006, decided on 21st November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.392 & 411---Bail, refusal of---Further inquiry---Principles---Accused was named in Recovery was effected from co-accused---Offence falling within prohibitory clause of S.497(2), Cr.P.C.---Trial had commenced---Effect---Accused/petitioners, as per F.I.R., committed offence of robbery while entering into the house of complainant at night time and during scuffle they were duly identified by complainant and other eyewitnesses---Accused contended that there was a delay of 26 days in lodging the F.I.R.; that during occurrence no injury was received by complainant party; that during investigation nothing was recovered from accused and that commencement of trial was not to be a hindrance in granting bail to them---Validity---Accused were specifically named in F.I.R.---Ear-rings looted in the occurrence were duly recovered from co-accused of petitioners---Prima facie, no reason for false implication of accused 'appeared on record---Accused were found guilty during investigation---Deeper appreciation of evidence was not permissible at 'bail stage---Case of accused when became of further inquiry, he could claim bail as a matter of right and start of trial could not cause any hindrance in his way---Bail under such principle, however could only be granted when case was that of further inquiry in real sense and provision of S.497(2), Cr.P.C. could not be stretched too far and case could not be held to be that of further inquiry just on imaginary and artificial grounds---Sufficient reasons were available to believe that accused were involved in a case which fell within prohibitory clause of S.497, Cr.P.C. and case was not found to be that of further inquiry---Bail was normally refused in the eventuality of start of trial---Bail was declined.

1980 SCMR 203 rel.

2002 MLD 712 and 2006 PCr.LJ 547 distinguished.

Muhammad Arif Alvi for Petitioners.

Muhammad Zubair Chaudhary for the Complainant.

Pervaiz Akhtar Gujjar and Muhammad Riaz A.S.-I. for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 527 #

2007 P Cr. L J 527

[Lahore]

Before Muhammad Jehangir Arshad, J

AMEERA KHANUM----Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Secretary to Government

of Punjab Home Department, Lahore and S others----Respondents

Writ Petition No.5933 of 2006, decided on 30th November, 2006.

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

----S. 11-EEE(3) & Fourth Schedule---Constitution of Pakistan (1973), Art.199---Constitutional petition---Detention order passed by Home Secretary, Government of Punjab---Detenu not convicted in any case listed against him---Sureties/bond furnished by detenu under S.11-EEE of Anti-Terrorism Act, 1997---Effect---Satisfaction of detaining authority was to be objective and not subjective in nature---Secretary, Home Department, Government or Punjab in exercise of his powers under S.11-EEE of Anti-Terrorism Act, 1997, directing arrest and detention of real brother of petitioner for 90 days---Petitioner contended that order was passed by Authority without conscious application of mind and on basis of irrelevant material; that list of cases appended with report related back to years 1990 to 1998 and in each of these criminal cases, detenu had already been acquitted by Court of competent jurisdiction; that detenu had already furnished a bond in terms of S.11-EEE of Anti-Terrorism Act, 1997 and there was not an iota of evidence that detenu acted in violation of such bond; that there was no material to establish that detenu was ever involved in sectarian activities after submission of bond under S.11-EEE of the Anti-Terrorism Act, 1997 and that in terms of subsection (3) to S.11.-EEE of Anti-Terrorism Act, 1997, an appeal against order passed by Authority had been provided but the same was heard and decided by the same person who issued detention order which was against principles of natural justice---Authority contended that name of detenu was very much available in Fourth Schedule of the Anti-Terrorism Act, 1997 and that detenu despite submission of bond was still indulging in anti-social activities, therefore, said order was validly and correctly passed---Validity---Only material produced by Authority in support of his order was one-sided, report submitted by District Police Officer which itself was based on another report by Station House Officer but there was not an iota of evidence in support of these reports---List of criminal cases appended with report showed that last case was registered against detenu on 1-10-1999---Detenu had already furnished two sureties under S.11-EEE of Anti-Terrorism Act, 1997 and there was no material available on record that either detenu committed violation of said bond or that any fresh case was registered against him after submission of bond---No evidence was available on record to show that detenu was convicted even in any of said criminal cases---Reports submitted by police officers were based on mere apprehensions and did not disclose even a single event of physical involvement or participation of detenu in any anti-social activities in order to attract provisions of S.11-EEE of the Anti-Terrorism Act, 1997---Liberty of a citizen could not be curtailed merely on apprehensions and that mere registration of F.I.R. would not be sufficient to curtail liberty of petitioner merely by alleging that he was a terrorist, especially when detenu was acquitted in all criminal cases mentioned in the attached list---Satisfaction of detaining authority was always to be objective in nature and not subjective in nature---Representation against order of detention was heard and decided by the same authority which originally passed detention order which was in sheer violation of principle that "no body can be a judge of his own, cause"---Authority had failed to substantiate grounds on basis of which it had acted while passing said order, court, therefore had no option except to strike down the same by declaring same as without lawful authority---Detenu was directed to be released forthwith if not required to be detained in any other matter---Petition was accepted.?

Abu Bakar Muhammad Reza v. Secretary to Government of Punjab, Home Department and 3 others PLD 2005 Lah. 370; Abdul Rauf v. Chief Commissioner, Islamabad and 5 others PLD 2006 Lah. 111;

Mir Abdul Baqi Baluch v. The Government of Pakistan through the Cabinet Secretary, Rawalpindi and others PLD 1968 SC 323 and Mulazim Hussain Shah v. Province of Punjab through Secretary, Home Department, Government of Punjab, Lahore and 2 others PLD 2006 Lah. 108 rel.

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

----S. 11-EEE(3)---Representation against detention order passed by Home Secretary---Scope---Representation against order of detention was heard and decided by same authority which originally passed detention order which was in sheer violation of principle that "no body can be a judge of his own cause"---Secretary Law, Government of Punjab was directed to place matter of detention before competent authority and said authority was expected to consider question of delegating power of decision of' representations against detention orders passed by Home Secretary to some other public functionary, preferably to Secretary Law, Government of Punjab himself who was usually a Judicial Officer not below rank of Sessions Judge---Secretary Law was expected to decide such representation in a more judicious and prudential manner.?

M.A. Hayat Haraj for Petitioner.

M.R. Khalid Malik, Addl. A,-G. and Mukhtar Ahmad, Inspector/S.H.O. for Respondents.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 540 #

2007 P Cr. L J 540

[Lahore]

Before Khawaja Muhammad Sharif, J

NASEER AHMAD----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.7113-B of 2006, decided on 20th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Bail before arrest, refusal of---Accused was named in F.I.R. and he was marginal witness of agreement to sell, which was not even written on a stamp paper---No mala fide was shown on the part of complainant---Police had authority to investigate the matter relating to non-cognizable offence---Even otherwise Investigating Officer had taken permission of investigation from Illaqa Magistrate---Co-accused were allowed bail as no allegation was found against them---Considerations for grant of bail before arrest and after arrest were totally different---No ease for bail before arrest having been made out, petition for bail was dismissed.

2006 PCr.LJ 906 and Sanaullah v. S.H.O. Police Station Civil Lines; Gujrat and 3 others PLD 2003 Lah. 228 rel.

Muhammad Rafique Chaudhry for Petitioner.

Hamid Abdullah for the Complainant.

S.D. Qureshi along with Iqbal S.-I. with record for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 542 #

2007 P Cr. L J 542

[Lahore]

Before Umar Ata Bandial, J

MUHAMMAD NAWAZ----Petitioner

Versus

DISTRICT POLICE OFFICER, GUJRAT and 4 others----Respondents

Criminal Miscellaneous No.988-H of 2006, decided on 3rd October, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 491 & 561-A---Habeas corpus proceedings---Inherent powers of High Court---Scope---Concerned S.H.O., in habeas corpus petition, under orders of High Court sent his report, but failed to attend proceedings himself---Report of S.H.O. having been found by the Court to be colourable and misleading, he was summoned, but he failed to attend on date of hearing which led to a direction to D.P.O. to call for explanation of S.H.O. for his said conduct of disobedience---D.P.O. found S.H.O. to be at fault and penalized him by awarding him punishment of reduction in pay scale---Validity---Purpose of courts' order was not to inflict punishment on S.H.O., but its object was to receive obedience of the court's orders and respect for the court---D.P.O. to whom matter was left, had acted swiftly to demonstrate alacrity, and discipline---Proceedings taken by D.P.O. against S.H.O. being summary in nature, it was possible that punishment awarded to S.H.O. was hasty---Burden cast on S.N.O. must bear relation to the falsity or inadequacy of his explanation---Object of the courts' order being to secure respect and obedience to the Court, should have been kept in view, rather than to cause distress or dishonour to a defaulter---Matter about S.H.O.'s conduct was left to the fair and lawful opinion of his Departmental Authorities.

Ch. Ahmad Khan Gondal for Petitioner.

Najeeb Faisal Chaudhry, Add. A.-G. with Ahsan Mahboob D.P.O., Gujrat for the State.

Muhammad Nazir, S.H.O. for Respondent No.2.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 544 #

2007 P Cr. L J 544

[Lahore]

Before Tariq Shamim, J

MUHAMMAD ANWAR BUTT and others----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.6551/B of 2006, decided on 6th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.324, 109 & 34---Bail before arrest, refusal of---Delay of two days in lodging F.I.R. had adequately been explained---Occurrence was a day time event and accused had been nominated in the F.I.R. and specific role of inflicting injuries with fire-arm weapons to the complainant at the instigation of accused was ascribed to them---Complainant, after receipt of injuries, was taken to the Hospital by his brother where he remained admitted for a month---As a result of injuries suffered by complainant at the hands of accused, he was stated to be paralyzed from waist down---Injuries were so severe and locale of injuries was such that possibility of same being self-suffered, was absurd and contention to that effect, could safely be ruled out---No mala fide on the part of complainant or the police for possible false involvement of accused in the case could be pointed out---Weapons of offence had yet to be recovered from other accused persons who along with the accused after dismissal of their bail application, had not surrendered to the police and escaped from the Court---Offence under S.324, P.P.C. was fully made out from the record of the case which was hit by the prohibitory clause of S.497, Cr.P.C.---In view of the part assigned to accused in the F.I.R. and the locale of injuries mentioned therein, fully corroborated by Medico-legal report, it could be safely said that prima facie enough tangible evidence was available on the record to connect accused with commission of crime alleged against them---Bail petition dismissed, in circumstances.

Manzoor Hussain Butt and C.M. Sarwar for Petitioners.

Malik Ishrat Hussain for the Complainant.

Ijaz Ahmad Bajwa with Muhammad Firdous, S.-I. with record for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 547 #

2007 P Cr. L J 547

[Lahore]

Before Syed Shabbar Raza Rizvi, J

SHAHBAZ ALI----Petitioner

Versus

SHAHBAZ SARFRAZ and another----Respondents

Criminal Miscellaneous No.2411/CB of 2006, decided on 27th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.420, 468 & 471---Application for cancellation of bail---Dismissal of application-Post-arrest bail was granted to accused on the grounds that prima facie, no authenticated document bearing signatures of allegedly executant had been sent for comparison; that factum of non-issuance of stamp paper as alleged by complainant was matter of record and could be decided during trial and that offence under S.420, P.P.C. was bailable while offences under Ss.468 & 471, P.P.C. were non-cognizable which required permission of Illaqa Magistrate and no such permission had been sought---Validity---Grounds on basis of which bail was granted to accused were neither factually nor legally correct---Record had shown that duly authenticated papers were sent for the comparison of signatures---Sections 468 & 471, P.P.C. were applied along with S.420, P.P.C. and in cases where cognizable and non-cognizable offences were applied together or provisions of Penal Code were attracted together, no permission of the Magistrate was required---No complaint was on record to the effect that accused had misused concession of bail---Once a bail was granted, it should be recalled only on exceptional grounds and it also would amount converting acquittal into conviction---Bail application to recall order of Additional Sessions Judge granting bail, was dismissed.

2004 PCr.LJ 387 rel.

Ch. Nisar Ahmad Kausar for Petitioner.

Safdar Hussain Tarar for Respondents.

Miss Najma Parveen for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 549 #

2007 P Cr. L J 549

[Lahore]

Before M. Bilal Khan, J

RAZZAQ ALI----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous Nos.4903/B and 7036/B of 2006, decided on 4th October, 2006.

Criminal Procedure Code (V of 1898)--

----S. 497---Passports Act (XX of 1974), S.6---Emigration Ordinance, (XVIII of 1979), S.17---Bail, grant of---Offences with which accused were charged, did not attract prohibitory clause of S.497(1), Cr.P.C.---Section 6 of Passports Act, 1974, prescribed maximum sentence of three years, whereas S.17 of Emigration Ordinance, 1979, entailed maximum punishment of seven years---Accused were in judicial lock-up and no recovery was to be effected from them---Accused were not previous convicts and after transfer of Trial Judge, his successor had not been named and it could not be said with any amount of certainty as to how long the trial would take to begin---Accused could not be retained in custody as a measure of punishment---Accused were admitted to bail, in circumstances.

Aftab Ahmad Bajwa for Petitioner (in Criminal Miscellaneous No.4903/B of 2006).

Shabbir Ahmad Khan for Petitioner (in Criminal Miscellaneous No.7036/B of 2006).

Ch. Muhammad Hussain Chhachhar, Standing Counsel for Government of Pakistan assisted by Fakhar-ul-Islam, S.-I./F.I.A. (P.C.), Lahore.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 551 #

2007 P Cr. L J 551

[Lahore]

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

SHARJIL AFZAL KHAN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.6092/B of 2006, decided on 5th October, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.4---Bail, refusal of---Report of Chemical Examiner had not been received, despite ten months had elapsed---Record showed that parcel was received by the office of Chemical Examiner and after analysis, report of Chemical Examiner was complete and according to report charas in question could be used for intoxication---Said report was sent by the office of Chemical Examiner to concerned police station, but same was not brought on record either due to inefficiency, negligence or ulterior motive on the part of Investigating Officer to give benefit to accused---Fifteen kilograms of Charas having been recovered on the pointation of accused, offence fell within the prohibitory clause of S.497(1), Cr.P.C. and offence being heinous one, accused was not entitled to bail---Bail application was dismissed.

Raja Faisal Hayat Janjua for Petitioner.

Tahir Mehmood Gondal, Asstt. A.-G., Punjab with Dr. Basharat Hussain, Chemical Examiner and Aziz Ahmad, A.S.-I. with record for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 553 #

2007 P Cr. L J 553

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD IDREES----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.784/M of 2006, decided on 26th July, 2006.

Criminal Procedure Code (V of 1898)---

---Ss. 561-A, 516-A & 550---Penal Code (XLV of 1860), Ss.420, 468, 471 & 109---Application for Superdari of vehicle having concurrently been rejected by Magistrate and Appellate Court below, petitioner had filed petition under S.561-A, Cr.P.C. against said rejection order---Petitioner for the time being appeared to be bona fide purchaser of the vehicle in question and Excise Department had also transferred vehicle in the name of petitioner---Vehicle was in possession of petitioner when it was taken into possession by the police under S.550, Cr.P.C.---No other claimant of said vehicle came forward---Petitioner being entitled to the custody of vehicle in question, his application for custody/Superdari of the vehicle, had wrongly been dismissed by the courts below without taking into consideration the fact that petitioner was bona fide purchaser of same and that vehicle would be damaged, if it was kept in the custody of the police for indefinite period---Accepting petition, custody/Superdari was ordered to be handed over to petitioner, accordingly.

Ghulam Hussain Malik for Petitioner.

Hashim Sabir Raja, A.A.-G. for the State.

Riasat Ali with Inayat Ullah, A.S.-I. along with record for Respondent No.2.

Abdul Rehman Chatha, Excise Inspector.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 555 #

2007 P Cr. L J 555

[Lahore]

Before M. Bilal Khan, J

ZAFAR IQBAL and another----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.3608/B of 2006, heard on 14th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 337-F(iii), 148 & 149---Bail, grant of---Further inquiry---Allegation was not made against accused that he had caused any injury to any of the deceased---Only allegation against accused was that he caused injuries to prosecution witness---None of said injuries attracted prohibitory clause of S.497(1), Cr.P.C.---Accused had been declared to he innocent during investigation and his plea of alibi that he was on duty in a factory in another city where he was employed, had found favour with the investigating agency---Report for the discharge had been formulated, but Magistrate refused to agree with said police request---Motive part of the occurrence was not attributed to accused---Accused was not related to any of accused persons---Record showed that accused got enmity in a murder case with the principal accused, there was no occasion, in circumstances, for the accused to have joined hands with principal accused in assaulting complainant party---Accused was resident of "M" District and nothing was on record to show that he had any social intercourse with complainant party, which was resident of District 'K'---Ever since his arrest, consistent stand of accused was that he was totally unconnected in the matter and had nothing to do with the incident---Even parentage of accused did not find mention in F.I.R.---Participation of accused in the alleged incident and his culpability as also his vicarious liability, were questions which needed further probe within the meaning of subsection (2) of S.497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Zafar Iqbal Chohan for Petitioners.

Muhammad Aslam Malik with Muhammad Akram, S.-I. for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 558 #

2007 P Cr. L J 558

[Lahore]

Before Tariq Shamim, J

TALIB HUSSAIN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.6504/B of 2006, decided on 1st September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.324, 148 & 149---Pre-arrest bail, grant of---Accused had been shown to be present at the place of occurrence empty handed in the F.I.R.---No injury qua the injured prosecution witnesses having been attributed to accused, prima facie, provisions of S.324, Cr.P.C. were not attracted to his case---Nothing had to be recovered from accused who was an old man of about 60 years of age---False involvement of accused on account of mala fides of the complainant could not be ruled out as accused was father of main accused---One female from accused's side, had sustained injuries during occurrence and cross-version of accused's side was also registered by the police, though same was disbelieved subsequently---As to whether accused was vicariously liable for the acts of his co-accused, could be determined at the trial after recording of evidence---Since accused was not required for any further investigation by the police, his incarceration at present juncture would not serve any useful purpose---Accused, who had made out a case for grant of pre-arrest bail, was granted same.

Rana Manzoor Ahmed for Petitioner.

Mian Waseem Mehmood for the Complainant.

Badar Munir Malik along with Khalid Saleem, S.-I. with record for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 560 #

2007 P Cr. L J 560

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ASHRAF and 2 others----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.3837/B of 2006, decided on 3rd July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Bail, refusal of---Occurrence had taken place in the house of complainant party, where not only complainant, but two eye-witnesses were also present at the time of occurrence---Allegation against accused was that they along with proclaimed offender, criminally trespassed into the house of complainant, and fired at deceased which hit on different parts of his body---Twenty one crime empties of Kalashnikov were recovered from the place of occurrence---Seventeen injuries were found on the person of deceased---All eye-witnesses had, supported case of prosecution---Police though had declared accused persons as innocent, but opinion of the police was not binding upon the court---All the prosecution witnesses were natural witnesses and inmates of the house---Case for grant of bail having not been made out, bail petition of accused was dismissed.

Muhammad Ahsan Bhoon for Petitioner.

S.D. Qureshi for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 562 #

2007 P Cr. L J 562

[Lahore]

Before Syed Sajjad Hussain Shah, J

MUHAMMAD SAFDAR and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.4217/B of 2006, decided on 4th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 337-A(ii), (iv) & (v)---Bail, grant of--Further inquiry---Allegation against accused was that he inflicted injury by throwing brick, which landed upon the head of injured prosecution witness---Intention of the accused would be determined at the time of trial after recording evidence---Only by throwing a brick, it could not be said with certainty that intention of accused was to commit Qatl-e-Amd of injured prosecution witness---Case against accused called for further inquiry into his guilt within the purview of subsection (2) of S.497, Cr.P.C.---Accused was behind the bars and was no more required for further investigation---To keep accused behind the bars for an indefinite period would not serve any useful purpose---Accused was admitted to bail, in circumstances.

Malik Abdul Aziz Kandwal for Petitioner.

Nazir Khan for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 564 #

2007 P Cr. L J 564

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD AKMAL----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.5439/B of 2006, decided on 14th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11---Bail before arrest, refusal of---Consideration for grant of bail before arrest and after arrest, were totally different---Neither accused appeared before Investigating Officer to join investigation nor statement of alleged abductee had been recorded---No case for bail before arrest was made out.

Muhammad Arif Gondal for Petitioner.

Sher Muhammad Gujjar and Muhammad Nawaz A.S.-I. for the State.

Allah Bukhsh Gondal for the Complainant.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 565 #

2007 P Cr. L J 565

[Lahore]

Before Fazal-e-Miran Chauhan, J

QAISAR ULLAH KHAN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.5400/B of 2006, decided on 14th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.324, 380, 452, 148 & Pre-arrest bail, refusal of---Accused were nominated in the ea49 stolen articles were yet to be recovered from them during investigation-----No ill-will, mala fide or malice on the part of the police or the complainant had been found on the record---Specific role had been assigned to accused as per investigation of A.S.P./S.P.O., accused beet found guilty while entering illegally in the office of the complaint and by causing harassment to the staff---Accused had stolen the record of the complainant company---Accused had failed to point out any material or mala fide against the police to falsely involve them in the case---Accused were not entitled to concession of bail---Ad interim pre-arrest bail granted to accused was recalled.

Khurshid Ali and 9 others v. The State 2006 YLR 2239 rel.

Azam Nazeer Tarar for Petitioner.

Ch. Fawad Hussain for the Complainant.

Malik Muhammad Aslam with Imran Khan, S.-I. for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 567 #

2007 P Cr. L J 567

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

NASEER AHMAD alias NASRI----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.5525/B of 2006, decided on 18th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.324, 148 & 149---Pre-arrest bail, refusal of---Accused was nominated in F.I.R. with specific role of causing fire-arm injuries to injured---Medico-legal Report of injured had revealed that injured had three fire-arm injuries on his person as narrated in the F.I.R. and the duration of those injuries also tallied with the time of occurrence---Accused though had also received injuries during the occurrence, but those injuries established his presence at the spot as well as his participation in the occurrence---Accused was very much required by the agency for further investigation, who had already been declared as proclaimed offender---No ground for grant of bail having been made out, bail application was dismissed with the direction to agency to bring on record cross-version of accused as well and proceed with the matter strictly in accordance with law---Ad interim pre-arrest bail granted to accused stood withdrawn.

Muhammad Yousaf for Petitioner.

Tariq Waheed and Falak Sher A.S.-I. for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 568 #

2007 P Cr. L J 568

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ASHRAF----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.4219/B of 2006, decided on 16th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Bail, grant of---Further inquiry---Correct name of accused had not been mentioned in F.I.R. which was brought on record through a supplementary statement, though on same day, but no source of information had been mentioned---Accused remained on physical remand for nine days and no recovery was effected from him---Accused having made out case of further inquiry falling under S.497(2), Cr.P.C., he was admitted to bail, in circumstances.

Tahir Naeem for Petitioner.

Azhar Javed Rana for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 570 #

2007 P Cr. L J 570

[Lahore]

Before Asif Saeed Khan Khosa, J

Rana FARHAN-UL-HASSAN and another----Petitioners

Versus

THE STATE and another----Respondents

Criminal Revision No.908 of 2004, decided on 8th April, 2005.

Criminal Procedure Code (V of 1898)---

----S. 169---Penal Code (XLV of 1860), Ss.406 & 506---Petitioners were on physical remand for four days, but before expiry of said period of four days, Investigating Officer found petitioners to be innocent and released them under S.169, Cr.P.C. on execution of bonds---Area Magistrate sent reference to Sessions Judge who cancelled petitioners bail and ordered their re-arrest---Petitioners had assailed said order---Validity---Was not clear whether petitioners were to face any trial or not; in view of the uncertainty of situation, it would be ill-advised to comment on merits of case qua petitioners---If Trial Court decided to summon petitioners to face trial, then complainant would be at liberty to apply for cancellation of petitioner's bonds executed by them before Investigating Officer---If such application was submitted by complainant, then Trial Court would consider same on its merits and would decide same in accordance with law without being influenced in any manner by observations made by Sessions Judge---Counsel for parties had offered no resistance to setting aside of impugned order passed by Sessions Judge.

Ch. Ali Muhammad for Petitioners.

Ch. Riasat Ali for State with Javed Iqbal, S.-I. with record.

Zafar Iqbal Bhatti for Respondent No.2.

Date of hearing: 8th April, 2005.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 572 #

2007 P Cr. L J 572

[Lahore]

Before M.A. Shahid Siddiqui, J

MUHAMMAD MAQSOOD----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.64-J of 2003, decided on 6th October, 2005.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Discrepancies appearing in the' statements of complainant and Investigating Officer about the registration of the case were of very trivial nature, which would not make prosecution case doubtful in any manner---In view of background in which accused contracted marriage with the deceased; place of occurrence; cause of death and subsequent conduct of accused, Trial Court had rightly found the accused guilty for committing Qatl-e-Amd of deceased---Immediate cause for murder of deceased was certainly shrouded in mystery---Conviction and sentence recorded by the Trial Court against accused, was upheld.

Mian Abdul Qayyum Anjum for Appellant.

Maqbool Ahmad Qureshi for Respondent.

Date of hearing: 6th October, 2005.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 576 #

2007 P Cr. L J 576

[Lahore]

Before Khawaja Muhammad Sharif and M.A. Shahid Siddiqui, JJ

ALLAH RAKHA----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.96/J of 2001 and Murder Reference No.259 of 2001, decided on 19th July, 2006.

Penal Code (XLV of 1860)---

---Ss. 302(b) & 337-F(2)---Appreciation of evidence---Case of promptly lodged F.I.R. and of single accused---Occurrence had taken place in broad-daylight---Parties were closely related inter se---Real brother could not be expected to let off actual killer of his brother and falsely implicate his paternal uncle---Mere relationship of eye-witnesses with the deceased, was no criteria to discard their testimony, if it was otherwise confidence inspiring---Eye-witness was also closely related to accused being his real nephew---Said witness who was star-witness and had fully supported the case of prosecution was also injured at the hands of accused---Presence of prosecution witness at the spot was thus beyond any doubt---Court had to see the quality and not the quantity of evidence---Even if testimony of one prosecution witness was excluded

from consideration, still evidence of other prosecution witness which was confidence inspiring, was there who had no enmity or ill-will to depose falsely against accused---Bhalam/offensive weapon recovered on the pointation of accused was found to be stained with human blood---Defence plea was not confidence inspiring rather was absurd, which was ruled out of consideration---No mitigating circumstance was available in favour of accused---Old age itself was no ground and accused did not cause a single injury, but repeated same on the person of deceased and also injured complainant, who was real brother of deceased---Conviction and sentence recorded against-accused vide impugned judgment of the Trial Court was maintained in toto---Death sentence awarded to accused was confirmed and murder reference was answered in affirmative.

2002 SCMR 1986; 2004 SCMR 1185 and 2004 PCr.LJ 1239 rel.

Miss Raisa Sarwat Fatima for Appellant as Defence Counsel.

M. Saleem Shad for the State (in Murder Reference) and Mrs. Tehseen Irfan for Respondent.

Date of hearing: 19th July, 2006.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 581 #

2007 P Cr. L J 581

[Lahore]

Before Muhammad Nawaz Bhatti, J

RASHID ALI----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.2559/B of 2005, decided on 6th October, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 337-D, 337-F(i), (ii) & 34---Bail, grant of---Accused was in jail since his arrest---Sections 324 & 337-D, P.P.C. had been deleted by the police---Trial against accused had not been completed by the Trial Court despite direction issued by High Court and counsel for State was unable to give any explanation for non-compliance of order passed by High Court in that respect---Accused was admitted to bail, in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Sh. Gul Muhammad for the State along with Muhammad Iqbal, A.S.-I.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 582 #

2007 P Cr. L J 582

[Lahore]

Before M. Bilal Khan, J

LIAQAT ALI----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1314/B of 2005, decided on 9th March, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Further inquiry---Role ascribed to accused, according to F.I.R. was that of exhorting a proverbial lalkara and nothing beyond that---Accused, who was an elderly man of sixty years, was not connected with the motive part of the story---Prosecution itself had stated that an altercation had taken place between accused's son and deceased a day prior to occurrence---True import of role of lalkara assigned to accused, was to be ascertained by the Trial Court after recording of some material evidence in the case-Liability under S.34, P.P.C. needed further probe within the meaning of subsection (2) of S.497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Chiragh Din and others v. The State PLD 1967 SC 340; Karamat Ali v. Haji Muhammad Hussain and others 1993 Law Notes (Lahore) 975; All-ud-Din and 2 others v. The State 1997 PCr.LJ 101 and Akhtar Ijaz Khan Yazdani v. The State 1998 Shariat Decisions 130 ref.

Ch. Mubashir Nasir Khan for Petitioner.

Muhammad Zubair Khalid Chaudhry for the Complainant.

Sohail Tariq for the State with Muhammad Younas, A.S.-I.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 584 #

2007 P Cr. L J 584

[Lahore]

Before Sh Hakim Ali, J

BASHIR AHMAD----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.3089/B of 2004, decided on 21st October, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.337-A(3)---Bail, grant of---Further inquiry---Bone of contention was a piece of land owned by sister of the informant and accused---Informant wanted to grab said land for which resistance was being put by accused---Considering accused an obstacle in his way to fulfil his design, informant had lodged false report so as to entangle accused in a criminal case and to deter and refrain him from contesting the case of his sister---Such aspect of the case required further thorough probe---Declaration of fracture of nasal bone by Medical Officer was still to be examined and had to be proved through evidence by prosecution because delay of about 6/7 days occurring in the declaration of nasal fracture had somewhat created doubt---Accused was in jail since his arrest and was not required by the police any more---Report under S.173, Cr.P.C. had already been submitted in the Court of Ilaqa Magistrate---Informant and accused were real brothers and possibility to patch up their differences, could be hopefully seen due to their close relationship---Case falling within the domain of further inquiry, accused was admitted to bail, in circumstances.

Ch. Muhammad Akram for Petitioner.

Ghulam Muhammad with Zafar Iqbal, A.S.-I. for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 587 #

2007 P Cr. L J 587

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Hasnat Ahmad Khan, JJ

MUHAMMAD RAMZAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeals Nos.753, 872 of 2001 and Murder Reference No.41 of 2002, heard on 18th January, 2007.

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

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Murder was committed in dark night and was not seen by anybody---Neither any accused was named in the F.I.R., nor any suspicion was raised against any person---Accused and his acquitted co-accused were implicated in the case during investigation---Prosecution case simply rested on circumstantial evidence---Motive for the murder had been rightly disbelieved by Trial Court---Salient features of prosecution case had been contradicted by medical evidence---Delay of more than two hours in lodging the F.I.R. had projected loopholes in the prosecution version---Occurrence admittedly having taken place in darkness of night, identification of accused was open to serious doubt---Statements of "Wajtakkar" witnesses were not credible which had many infirmities and seemed to have been artificially fabricated to cover the lapse of not nominating the accused persons in the F.I.R.---Evidence of extra-judicial confession was always treated contemptuously and was not given much weight---Story put forward by the witnesses of extra-judicial confession was hollow, as the accused had no reason to approach them for making confession who had no authority to assist the accused in any way---Said evidence had even been disbelieved qua the acquitted co-accused by Trial Court---Prosecution had failed to explain as to why the recovered empty cartridge was not sent to Fire-Arms Expert before the arrest of the accused---Possibility of recovery of gun on the same day and sending the empty cartridge after firing from the said gun could not be ruled out---Although the empty cartridge was found at the place of occurrence, yet the complainant had admittedly not mentioned this fact in the Positive report of Forensic Science Laboratory was consequently discarded---All pieces of evidence provided by prosecution were tainted and manipulated and one tainted piece of evidence could not furnish corroboration to another such evidence---Accused was acquitted on benefit of doubt in circumstances.

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

----S. 164---Penal Code (XLV of 1860), S.302(b)---Appreciation of evidence---Extra-judicial confession---Evidentiary .value---Evidence of extra-judicial .confession is always treated contemptuously and it is not given much weight as evidence.

----S. 302(b)---Appreciation of evidence---Tainted evidence---Corroboration---Principle---One tainted piece of evidence cannot furnish corroboration to another tainted piece of evidence.

Sahibzada Farooq Ali for Appellant.

Malik Muntazir Mehdi for the Complainant.

Masood Sabir with Bashir Ahmad Bhatti, D.P.G. for the State.

Date of hearing: 18th January, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 600 #

2007 P Cr. L J 600

[Lahore]

Before Khawaja Muhammad Sharif, J

THE STATE----Petitioner

Versus

IQBAL HUSSAIN----Respondent

Criminal Original No.41 of 2006, decided on 22nd May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.420, 468, 471 & 506---Bail before arrest---Second bail application---Earlier bail application of accused was dismissed for non-prosecution and in second bail application accused did' not mention that his earlier application for bail before arrest was dismissed---High Court granted to accused interim bail before arrest and matter was fixed for date and accused was directed to appear before High Court on each and every date of hearing till final disposal of bail application---Neither accused nor his counsel was present on the date fixed for hearing and accused did not even file bail bond---Perpetual warrant of arrest and notice of contempt of court were issued against accused, but accused was not present before the Court---Advocate-General was asked to direct Superintendent of Police concerned to arrest accused and produce him before High Court---S.H.O. concerned was also directed to submit a report whether accused had been involved in other cases prior to registration of the present case.

Ch. Muhammad Hanif Khatana, Addl. A.-G. along with Muhammad Aamar Zulfiqar, S.S.P. and Abdul Razzaq, Bailiff for Petitioner.

Date of hearing: 22nd May, 2006.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 604 #

2007 P Cr. L J 604

[Lahore]

Before Iqbal Hameedur Rahman, J

Mir BADSHAH QAISRANI----Applicant

Versus

THE STATE----Respondent

Criminal Miscellaneous No.452/B of 2007, decided on 15th February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.302---Bail before arrest, refusal of---Concession of bail before arrest was a discretionary relief which could be granted in extraordinary circumstances---While extending such relief to a person, his conduct was also to be taken into consideration---In the present case, accused twice obtained protective pre-arrest bail from High Court, approached the court of first instance, obtained ad interim pre-arrest bail and then absented himself---Accused though had stated that he was being forcibly prevented to appear before the court, but while making applications for pre-arrest bail, accused was not confronted with said difficulty---On date when Trial Court was not inclined to grant bail to accused, he slipped away with ease from the said court without any hindrance--Accused intentionally did not opt to appear in the court when his bail application was fixed---Such conduct of accused had shown that he was playing hide and seek with the court---Extraordinary jurisdiction for grant of pre-arrest bail, could not be exercised in favour of the accused---Petition for grant of pre-arrest bail was dismissed, in circumstances.

Sardar Balakh Sher Khosa for Petitioner.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 611 #

2007 P Cr. L J 611

[Lahore]

Before Sh. Javaid Sarfraz, J

ABID ALI----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.384/B of 2006, decided on 22nd February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Bail, grant of---Further inquiry---Allegation, against accused was that he installed a factory for manufacturing liquor and 60 litres of liquor had. been recovered from accused out of which 10 ounce was sent to Chemical Examiner for report, which had not been received--Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 was bailable, while Art.3 of the Order did not fall within the prohibitory clause of S.497, Cr.P.C.---Where offence did not fall within the prohibitory clause of S.497, Cr.P.C. bail would be granted as a rule, while refusal thereto was exception---Challan had been sent to the Court, but evidence had not commenced and there was no likelihood of conclusion of the trial in the near future---Accused could not be kept behind the bars for indefinite period as in criminal jurisdiction, there was no concept of punishment before conviction---Accused was admitted to bail, in circumstances.

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

Khalil-ur-Rehman for Petitioner.

Ghulam Nabi with Ameer Ahmad, A.S.-I. for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 615 #

2007 P Cr. L J 615

[Lahore]

Before Muhammad Nawaz Bhatti, J

JAFFAR HUSSAIN and others----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.110/B of 2006, decided on 5th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of.1860), Ss.337-A(i), (ii), 337-F (i), (ii), (iii), (v), 337-L(ii), 148 & 149---Pre-arrest bail, refusal of---Accused were nominated in the F.I.R. and they had been attributed specific role---Investigation was incomplete as accused had not joined the investigation---No mala fide was found on the part of complainant side to falsely involve accused---Pre-arrest bail was an extraordinary relief which could only be granted if there was mala fide on the part of complainant or there were sound reasons to believe that accused persons had been falsely involved---Accused had also been declared guilty during the course of investigation---Concession of bail before arrest would be granted to accused, if it was established that his involvement in the case was based on mala fides by the prosecution, but no such reason existed to grant such relief to accused.

Mst. Qudrat Bibi v. Muhammad Iqbal and another 2003 SCMR 68 ref.

Mian Hafeez-ur-Rehman for Petitioners.

Tariq Zulfiqar Ahmad Chaudhry for the Complainant.

Mehmood-ul-Hassan Qureshi with Abdul Sattar, S.-I. for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 617 #

2007 P Cr. L J 617

[Lahore]

Before Hasnat Ahmad Khan, J

MUSHTAQ AHMAD----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.52/Q of 2005, decided on 12th December, 2006.

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

----Ss. 540 & 561-A---Penal Code (XLV of 1860), Ss.397, 324, 337-A(i), (ii) & 337-F(i)---Summoning police officials as court witnesses---Closing of defence---Quashing of order passed in revision---Trial Court, after framing charge against petitioner/accused, proceeded to record prosecution evidence---After closing of prosecution evidence, petitioner submitted application under S.540, Cr.P.C., for summoning four police officials as court-witnesses, claiming that said police officials had declared him innocent---Said application of petitioner/accused was allowed to the extent of granting permission to petitioner to produce the police officials as defence witnesses---One of said police officials produced by petitioner as defence witness had clearly deposed that he had never conducted investigation of the case against petitioner and that claim of petitioner that he had been found innocent during the investigation by the police officials, was not based upon true picture---Petitioner, in circumstances could not prove that he was declared innocent in investigation---Other police official sought to be examined had already died and petitioner could not produce third one despite many opportunities were granted to him to produce that police official---Petitioner having failed to produce defence witness, his right of defence was closed by the Trial Court and revision filed by petitioner against order of the Trial Court having been dismissed by Appellate Court, said order of Appellate Court had been sought to be quashed by petitioner in his application under S.561-A, Cr.P.C.---Scope---Defence of petitioner was closed when he failed to produce defence witnesses even after availing 15/16 opportunities---Intention of petitioner was to bring on record opinion of said police officials qua his innocence, which was neither binding on the court nor admissible in evidence---No prejudice had been caused to petitioner and he could not point out any illegality in the impugned orders, nor any irregularity in the procedure---Petition, being meritless was dismissed.

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

----Ss. 561-A, 439, 439(4)(b) & 439-A---Jurisdiction under S.561-A, Cr.P.C.---Scope---Second revision under S.439, Cr.P.C. in High Court against order of Sessions Judge passed in revision under S.439-A, Cr.P.C. was barred---Purpose of the enactment was to curtail the remedies---Said purpose of law could not be circumvented through allowing the invocation of S.561-A, Cr.P.C.---Jurisdiction under S.561-A, Cr.P.C. was an extraordinary one, preserved only for extraordinary situations which must be exercised sparingly with utmost caution and only in exceptional cases and not as a matter of routine.

Bashir Ahmad v. Zafar-ul-Islam PLD 2004 SC 298 and Syed Gohar Ali Shah v. The State and 6 others 2000 PCr. LJ 1180 ref.

Gohar Mehmood Paracha vice Malik Muntazir Mehdi for Petitioner.

Shehbaz Murtaza Ansari for Respondent No.2.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 624 #

2007 P Cr. L J 624

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Hasnat Ahmad Khan, J

ALLAH WASAYA and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.106 and Murder Reference No.107 and Criminal Revision No.231 of 2002, heard on 11th January, 2007.

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

----Ss. 302(b) & 103---Appreciation of. evidence---F.I.R. was promptly lodged---Eye-witnesses, complainant and the injured witness, both related to the deceased, were natural witnesses whose presence at the scene of occurrence was beyond doubt---Eye-witnesses had made consistent statements and corroborated each other, however, they being rural persons could not be expected to give exact measurements of the assailants from their target specially when they were under serious threat of being fired by numerous persons armed with weapons like kalashnikovs---Ocular version was fully corroborated by medical evidence---Site plan being not a substantial piece of evidence could not be relied upon---Police opinion being not binding on the Court was not helpful to the accused---Non-recovery of the weapon of offence did not advance the defence case, as the prosecution case having been based on the evidence of the injured prosecution witness was not required to be corroborated by the recovery evidence---Accused had neither taken the plea of self-defence in his statement recorded under S.342, Cr.P.C., nor had made any attempt to prove the same---Accused party . having launched an attack on armless persons after arming themselves with lethal and sophisticated weapons, could not validly claim benefit of S.103, P.P.C.---Conviction of accused was upheld in circumstances---However, no previous enmity existed between the parties and the occurrence had started at the spur of the moment due to the conduct of the complainant party of diverting the irrigating water towards their own field, which became the immediate cause of occurrence---Death sentence of accused was altered to imprisonment for life in view of the said mitigating circumstance.

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

----S. 324---Appreciation of evidence---Benefit of doubt---Injured prosecution witness who was allegedly fired upon by the accused, was not produced by the prosecution in the witness-box---Accused was given benefit of doubt and acquitted, of the charge in circumstances.

Sardar Balakh Sher Khan and Sahibzada Farooq Ali Khan for Appellants.

Mian Bashir Ahmad Bhatti, D.P.G. for the State.

Syed Shamim Haider Zaidi for the Complainant.

Date of hearing: 11th January, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 633 #

2007 P Cr. L J 633

[Lahore]

Before Sh. Javaid Sarfraz, J

MUHAMMAD SARFRAZ alias RIAZ----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.3019/B of 2006, decided on 3rd July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)---Pre-arrest bail, refusal of---Accused was duly nominated in F.I.R. and specific role had been attributed to him---Previously a case of similar offence was also registered against accused in which he was convicted---Accused had committed same offence, which was a heinous crime---Witnesses in their statements under S.161, Cr.P.C. had supported prosecution version---Prima facie, accused appeared to be involved in the case and mala fide on the part of prosecution had not been established by accused---Grounds of pre-arrest bail were different from that of after arrest---Offence against accused fell within prohibitory clause of S.497, Cr.P.C.---No case for pre-arrest bail had been made out by accused, who did not deserve any discretionary relief from the High Court---Bail petition was dismissed, in circumstances.

Nemo for Petitioner.

Ch. Muhammad Saeed Iqbal Gujjar for the Complainant.

Muhammad Akram Minhas with Sikandar Hayat, A.S.-I. for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 642 #

2007 P Cr. L J 642

[Lahore]

Before Hasnat Ahmad Khan, J

AMIR BAKHSH----Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, MULTAN and others----Respondents

Criminal Revision No.113 of 2006, decided on 27th November, 2006.

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

----S. 540---Power to summon material witness etc.---Jurisdiction to be exercised judiciously---No doubt under S.540, Cr.P.C. any Court at any stage of trial or inquiry may recall and re-examine any person already examined, but said jurisdiction can be exercised on the basis of some judicial reasoning.

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

----Ss. 540 & 439---Penal Code (XLV of 1860), Ss.302/324---Re-summoning of prosecution witnesses for further cross-examination--Validity---Trial could not be held in accordance with the wishes of the counsel of the parties and the prosecution witnesses could not be re-summoned by Trial Court only on the ground that defence counsel had failed to put material and necessary questions to them---Re-summoning of the witnesses was not merely a technicality---Accused had already been given full and fair opportunity to cross-examine the said prosecution witnesses and if he had failed to put some necessary questions to them, only he could be blamed for his inefficiency and neither the witnesses nor the prosecution could be made to suffer due to the negligence or inexperience of the defence counsel---Neither the defence nor the prosecution could be allowed to fill the lacuna by re-summoning of witnesses under S.540, Cr.P.C.---Impugned order passed by Trial Court was held to be illegal, unlawful and without jurisdiction and the same was consequently set aside---Revision petition was accepted accordingly.

Rasheed Ahmad v. Ibrahim and another 1996 PCr.LJ 143 rel.

----S. 540---Re-summoning of witnesses-Principle-Neither the defence nor the prosecution can be allowed to fill the lacuna by re-summoning of witnesses under S.540, Cr.P.C.---If such practice is allowed, no trial would ever come to an end and it would amount to opening of pandora box.

Ch. Imran Khalid Amratsari for Petitioner.

Muhammad Naeem Khan for Respondent No.2.

Rao Atif Nawaz for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 645 #

2007 P Cr. L J 645

[Lahore]

Before Muhammad Nawaz Bhatti, J

MUHAMMAD ASIF and others----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.514/B of 2006, decided on 5th April, 2006.

Criminal Procedure Code (V of 1898)--

----S. 497---Penal Code (XLV of 1860), Ss.337-A(ii), 337-A(i), 337-F(i), (ii), (iii) & (v), 337-L(ii), 148 & 149---Bail, grant of---Accused were behind the bars since long---Co-accused had already been granted bail and under the rule of consistency, accused also deserved concession of bail---Three other co-accused had been declared innocent during the course of investigation and it was yet to be determined during the trial as to which party was aggressor as accused party had also filed complaint against complainant party; wherein Trial Court had summoned complainant party---Investigation in the case was complete, challan had been submitted in the Court of competent jurisdiction and no useful purpose would be served to put accused behind the bars for an indefinite period---Accused were admitted to bail, in circumstances.

Mian Hafeez-ur-Rehman for Petitioners.

Tariq Zulfiqar Ahmad Chaudhry for the Complainant.

Mehmood-ul-Hassan Qureshi with Abdul Sattar S.-I. for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 649 #

2007 P Cr. L J 649

[Lahore]

Before Iqbal Hameedur Rahman, J

ATIF ALI SHAHZAD----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.3706/B of 2006, decided on 1st December, 2006.

Criminal Procedure Lode (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10(2) & 11---Bail, refusal of---Accused had committed a very heinous offence with a minor girl whom complainant and her parents had engaged for tuition---Accused had not only lost the trust of complainant, but had completely destroyed the life of a minor girl by committing Zina-bil-Jabr---Alleged abductee/victim had fully implicated accused in the offence by making statement under. Ss.161 & 164, Cr.P.C.---Delay of 475 days in lodging of F.I.R. in such cases, was not fatal to the prosecution case; as the people naturally avoid rushing to the police station in the first instance because of family honour and usually make attempts to recover their victim---Challan had been submitted and case had been fixed---Offence fell within prohibitory clause of S.497, Cr.P.C.---Accused had been fully implicated in heinous offence against not only victim, but against the society, such-like person did not deserve to be granted bail in exercise of discretionary powers under S.497, Cr.P.C.---Bail was refused.

Akhtar Ali v. The State 2004 PCr.LJ 1841 rel.

Peer Muhammad Asif Rafi for Petitioner.

Malik Muhammad Mumtaz for the Complainant.

Tanvir Haider Buzdar for the State.

Jahangir Shah, S.-I. with Record.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 662 #

2007 P Cr. L J 662

[Lahore]

Before Muhammad Sayeed Akhtar, J

Mst. RUKHSANA BIBI----Petitioner

Versus

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

Writ Petition No.1848/Q of 2006, decided on 16th May, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10(2) & 16---Constitutional petition---Quashing of F.I.R.---Petitioner who appeared in person, had stated that she was neither enticed away nor taken away by accused with an intent to commit Zina with her---Relationship between husband of petitioner and herself became strained and she went to live with her relative of her own free-will--Lady was lodged in Dar-ul-Aman---Petitioner lady had also filed a suit for dissolution of marriage--Nothing had come out during investigation that offence, under S.10(2) or 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was committed---Allowing the constitutional petition, F.I.R. against petitioner was quashed by High Court.

Altaf Ibrahim Qureshi for Petitioner.

Mian Mahmood Rasheed for Respondent No.2.

Muhammad Qasim Khan, A.A.-G. with Abdul Jabbar and Rao Muhammad Younas, A.S.-I. for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 669 #

2007 P Cr. L J 669

[Lahore]

Before Tariq Shamim, J

MUNIR HUSSAIN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.644-B of 2006, decided on 19th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), 5.302---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16---Bail, refusal of---Accused after abducting deceased had caused her death by strangulation, which was supported by the Post-mortem report---Lady Doctor in her report had declared cause of death as asphyxia---Accused was seen' by the witnesses bringing the dead-body of deceased to the hospital---No delay in lodging F.I.R.---In two investigations, one conducted by the local police and other by D.S.P., accused was found fully involved in the case---Accused was also an absconder for seven months, which also disentitled him to concession of bail---Challan of the case had been submitted and the trial was likely to commence in the near future---Accused had also made an extra-judicial confession before independent witnesses; though admissibility or otherwise of said confession could be determined only at the trial---Offence of murder against accused fell under the prohibitory clause of S.497, Cr.P.C.---Ample evidence being on record to connect accused with the commission of offences committed by accused, he was not entitled to concession of bail.

Muhammad Iftikhar-ul-Haq Kanwar for Petitioner.

Tariq Zulfiqar Ahmad for the Complainant.

Raja Sultan Khurram with Shafqat, S.-I. for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 673 #

2007 P Cr. L J 673

[Lahore]

Before Muhammad Jehangir Arshad, J

ABDUL RASHID----Petitioner

Versus

THE STATE----Respondent

Criminal Revision No.2 of 2007, decided on 4th January, 2007.

Criminal Procedure Code (V of 1898)---

----S. 514---Penal Code (XLV of 1860), Ss.302, 364, 109 & 34---Forfeiture of bail bond---Reduction in surety amount---Accused for whom petitioner stood surety, having absconded, surety bond of petitioner was forfeited---Petitioner's liability was not , denied, but no allegation was levelled against petitioner/surety that he was instrumental in the abscondence of accused---Recovery of full amount of surety from petitioner, in circumstances was not legally justified---Accused for whom petitioner stood surety, absented himself when case was called out, and appeared on the same day afterwards and was sent to Jail, but said accused had been released from Jail on acceptance of his fresh bail bonds---Amount of penalty was reduced from Rs.1,00,000 to Rs.10,000 in circumstances.

Allah Ditta v. The State 2005 PCr.LJ 1765 rel.

Sardar Ashiq Hussain Khan for Petitioner.

Bashir Ahmad Bhatti, D.P.G. on Court's call.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 691 #

2007 P Cr. L J 691

[Lahore]

Before Muhammad Farrukh Mahmud, J

Mst. WALLAN alias MARIYA----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.620/B of 2006, decided on 24th March, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 497(1), proviso & 498---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10(2) & 16-Penal Code (XLV of 1860), Ss.467, 468 & 471---Ad interim pre-arrest bail, confirmation of---Accused girl who was major, owned her marriage with alleged abductor, which had belied allegation of abduction levelled in F.I.R.---Petitioner had placed on record certificate issued by Nazim, Arbitration Council, which had revealed that accused earlier was married with one who sent notice to divorce and thereafter divorce was declared to be effective---Case of petitioner/accused fell within the proviso to subsection (1) of S.497, Cr.P.C.---Ad interim pre-arrest bail already granted to accused, was confirmed on the same terms and conditions.

Muhammad Zafar Khan Sial for Petitioner.

Abdul Ghaffar with Ghulam Hussain, S.-I. for the State.

Altaf Ibrahim Qureshi for the Complainant.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 699 #

2007 P Cr. L J 699

[Lahore]

Before Syed Sajjad Hussain Shah, J

SHAHZAD----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.3555/B of 2006, decided on 26th May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.392---Bail, grant of--Further inquiry---Complainant could not identify assailant due to darkness as accused was not known previously to him---Complainant did not mention the source of his knowledge that the accused before Court had committed offence---Nothing incriminating was recovered froth accused---F.I.R. was lodged after 36 days and said delay was not explained---Prima facie involvement of accused in the case required further probe---Accused was behind the bars and no more required for

further investigation---To keep accused behind the bars for an indefinite period, would not serve any useful purpose---Case of accused, in circumstances, called for further inquiry into his guilt---Even otherwise on the rule of consistency accused was entitled to grant of bail as his co-accused had been allowed bail---Accused was granted bail, in circumstances.

Rai M. Tufail Khan Kharal for Petitioner.

Maqbool Ahmad Qureshi with Ghulam Mustafa, S.-I. for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 701 #

2007 P Cr. L J 701

[Lahore]

Before Sh. Hakim Ali, J

Haji ABDUL RAUF----Petitioner

Versus

S.H.O. SADDAR, RAHIMYAR KHAN and others----Respondents

Writ Petition No.2274 of 2006, decided on 16th November, 2006.

Penal Code (XLV of 1860)---

----S. 406---Police Order (22 of 2002), Art.18(3)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Police declaring accused innocent upon an inquiry---Other Police Officer declared accused guilty on basis of his investigation---Accused had claimed that opinion of police officer who had declared him innocent could not be reopened by some other Police Officer under the influence of Federal Minister---Police officer who had declared accused innocent, had not conducted inquiry of the case and his statement was a mere information which was formed after consulting police record/file which information could not be viewed to be a final opinion of the police---Investigating Officer, though had been given free hand to investigate a case entrusted to him with. all fairness, accepting no outside influence for formation of his opinion with regard to innocence or guilt of persons involved in the commission of offence, but he could not be absolved of his duty to explain his strange, unreasonable conduct in the course of an investigation to his highups---Even otherwise opinion of a police official was mere an opinion, not the last word in investigation, and not final so as to close the chapter of investigation for all times to come---Investigation and change of investigation on two occasions, had been envisaged by the Police Order, 2002---Constitutional petition, by accused was not maintainable and was disposed of accordingly.

Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373 rel.

Ahmad Mansoor Chishti for Petitioner.

Nadeem Iqbal Chaudhry for Respondent No.4.

Ch. Shafi Muhammad Tariq, A.A.-G. along with Abbas Akhtar, Inspector/S.H.O. for Respondents.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 708 #

2007 P Cr. L J 708

[Lahore]

Before Syed Shabbar Raza Rizvi, J

AMJAD IQBAL----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.714/B of 2006, decided on 12th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.380, 411 & 457---Bail, grant of---No direct evidence was available to connect accused with the commission of offence---Recovery of electric iron and torch had been shown against accused, which articles were of general nature---Accused had already been in jail for nearly eight months and the trial had not commenced---Accused was granted bail, in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Ch. Ghulam Muhammad for the State.

Kh. Qaiser Butt for the Complainant.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 713 #

2007 P Cr. L J 713

[Lahore]

Before Khawaja Muhammad Sharif, J

NASIR MAHMOOD----Petitioner

Versus

ASHFAQ and another----Respondents

Criminal Miscellaneous No.2198/C.B. of 2006, decided on 4th May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.302 & 460---Bail, cancellation of---Accused was named in F.I.R. with specific role that he was responsible for the murder of deceased and had been charged under S.460, P.P.C.---Complainant had no malice or ulterior motive against accused to falsely implicate him in the case---Offence against accused fell within the prohibitory clause of S.497(1), Cr.P.C.---Rule belonging to deceased was stolen from his house by co-accused and same was recovered from accused---Bail order passed by the Trial Court was not upto the mark---Petition for cancellation of bail was accepted and bail already granted to accused was withdrawn.

Muhammad Sadik and others v. The State. 1980 SCMR 203; Hakim Ali and 3 others v. The State 1979 SCMR 114; Muhammad Nawaz v. The State 2002 SCMR 1381; 2004 SCMR 231; 2003 YLR 1596; 1999 PCr.LJ 868; 2004 YLR 400; 1999 PCr.LJ 799 and 2002 PCr.LJ 1262 ref.

M. Taqi Khan for Petitioner.

Ch. Imtiaz Hussain Bhatti for Respondent No.1.

2007 P Cr. L J 744

[Lahore]

Before Abdul Shakoor Paracha, J

SHABBIR HUSSAIN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.2925/B of 2006, decided on 12th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 452, 148 & 149---Bail, refusal of---Accused was nominated in F.I.R. with specific role of causing fire-arm injuries to the victim---Whether any recovery had been effected from accused and medical evidence was in conflict with ocular account made by complainant and prosecution witnesses, could not be decided at bail stage because only tentative view of the case had to be made at the time of disposal of bail application---Offence for which accused had been charged, fell within the prohibitory clause of S.497, Cr.P.C.---No ground existed to release accused on bail, his bail application was dismissed.

Ijaz Ahmad Khan for Petitioner.

Miss Naila Abdali along with Ittifaq Hussain, S.-I. for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 746 #

2007 P Cr. L J 746

[Lahore]

Before Khawaja Muhammad ShariF and Muhammad Farrukh Mahmud, JJ

LIAQUAT ALI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.415 and Murder Reference No.809 of 2001, heard on 7th December, 2007.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Motive behind the occurrence was proved---Difference between the age of accused and age of the widow of the deceased was immaterial as for illicit relations such difference was not important---Eye-witnesses had fully supported the prosecution case and they had no ill-will or animus against the accused to implicate him falsely in the case---Prosecution evidence having intrinsic value had come on record from an unimpeachable source against the accused---Even if the positive report of Forensic Science Laboratory was kept out of consideration, still sufficient evidence in the shape of ocular testimony and the motive was available on record to maintain the conviction of accused---Mere mention of his age by the accused in his statement under S.342, Cr.P.C. could not be a proof to declare him a minor, when he even had not produced in Court his birth certificate or a school leaving certificate---No mitigating circumstance was available to award lesser punishment to accused---Conviction and sentence of death of accused were upheld in circumstances.

2000 SCMR 1758 and 2006 SCMR 637 ref.

Mazhar Masood Khan for Appellant.

Nemo for the Complainant.

Tanveer Iqbal, A.A.-G. for the State.

Date of hearing: 7th December, 2006.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 752 #

2007 P Cr. L J 752

[Lahore]

Before Fazal-e-Miran Chauhan, J

MEHMOOD KHAN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.535-B of 2006, decided on 29th March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.302, 109 & 34---Pre-arrest bail, confirmation of---Accused was attributed the role of abetting the murder of deceased 53 days prior to the date of occurrence---Only general allegation was levelled against accused by the complainant---Criminal litigation was pending between the parties and having come to know of said abetment, no complaint in the shape of F.I.R. or report was lodged with the Police from complainant side---None of nominated accused were present in the meeting where the conspiracy regarding abetment was made by accused---Accused who was brother-in-law of co-accused, was not present on the spot---No specific role at the spot was attributed to accused---Was yet to be established that any abetment was made by accused---Since no role was attributed to accused, mala fides of complainant to implicate accused due to previous enmity, could not be ruled out---No recovery was effected from accused-Accused could not be allowed to be kept as hostage to ensure the arrest of co-accused---In order to avail the remedy of post-arrest bail, concession of pre-arrest bail could not be curtailed on the ground that first he would surrender himself and thereafter he would apply for bail after arrest---If case of accused fell within the scope of further inquiry, he could not be deprived of concession of pre-arrest bail---Bail before arrest already granted to accused, same was confirmed, in circumstances.

Mst. Qudrat Bibi v. Muhammad Iqbal and another 2003 SCMR 68; Malik Noor Ahmad and another v. The State PLD 1993 Lah. 500; Muhammad Ismail v. Ghaus Bakhsh and another 1990 PCr.LJ 2013 Muhammad Ramzan v. Zafar Ullah and another 1986 SCMR 1380; Muhammad Ashraf v. The State 1994 PCr.LJ 1082 and Roshan Din and others v. The State 2002 Cr.LJ 26 ref.

Ch. Pervez Aftab, assisted by Altaf Ibrahim Qureshi for Petitioner.

Abdul Aziz Khan Niazi for the Complainant.

Raja Sultan Khuram-uz-Zaman with Imdad Hussain, S.-I. for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 755 #

2007 P Cr. L J 755

[Lahore]

Before Maulvi Anwarul Haq and Abdul Shakoor Paracha, JJ

ASKARI LEASING LIMITED through Branch Manager----Petitioner

Versus

THE STATE-Respondent

Criminal Revision No.36 of 2005, heard, on 11th January, 2007.

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

----Ss. 516-A & 439---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---"Superdari" of the vehicle refused by Sessions Court to the petitioners---Validity---Vehicle admittedly vested in the petitioner-Company which had been leased out to the accused and from which offending narcotic had been recovered and the same was taken over by the police---No allegation was available on record that the petitioner-Company was aware of the said user of the vehicle leased out by it to the accused as a financial institution---Even no suspicion had been expressed on the record against any officer of the petitioner-Company in this behalf---No investigation had been conducted on such lines in the case---Petitioner who was admittedly the owner of the vehicle, thus, was entitled to its release on "Superdari"---Impugned order of Sessions Court was set aside accordingly and the vehicle was ordered to be released to the petitioner on "Superdari"---Revision petition was consequently accepted.

Muhammad Rafiq v. The State 2006 YLR 1732; Abdul Salam v. The State 2003 SCMR 246 and Haji Abdul Razak v. Pakistan through Secretary, Ministry of Finance and another PLD 1974 SC 5 ref.

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

----S. 74---Criminal Procedure Code (V of 1898), S.516-A---Release of the vehicle temporarily on "Superdari" during the pendency of trial---Extent and scope---Absolute bar cannot be created for the release of the vehicle temporarily on "Superdari" during the pendency of the trial, if as per S.32 of the Control of Narcotic Substances Act, 1997, its owner is prima facie established to have no knowledge of the narcotics having been transported in his vehicle---Trial Court can essentially form such opinion after taking into consideration the facts of the case.

Abdul Salam v. The State 2003 SCMR 246 and Haji Abdul Razak v. Pakistan through Secretary, Ministry of Finance and another PLD 1974 SC 5 ref.

----S. 516-A---Control of Narcotic Substances Act (XXV of 1997), S.74---Temporary release of vehicle on "Superdari"---Jurisdiction of Court---Principles---Judicial discretion can be exercised for release of vehicle temporarily on "Superdari" in view of well-settled principle that if a Court can grant final relief, it also possesses inherent jurisdiction to grant temporary relief pending proceedings before it, subject to prima facie fulfilling the conditions by the petitioner under the law for getting relief finally from the Court.

Haji Abdul Razak v. Pakistan through Secretary, Ministry of Finance and another PLD 1974 SC 5 ref.

Rashid Sikandar Khawaja for Petitioner.

Sh. Muhammad Munir, Dy. P.G. for the State.

Date of hearing: 11th January, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 759 #

2007 P Cr. L J 759

[Lahore]

Before M. Bilal Khan and Tariq Shamim, JJ

MUHAMMAD DIN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.1717 of 2005, heard on 7th December, 2006.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 10(a)/9(a)(iv)---Appreciation of evidence---Sentence reduction in---Accused was neither named in the complaint nor the delivery of money to him had been proved through the deposition of any witness---Version of the accused that he was a petty employee in the Corporation and that his thumb-impression and signatures had been procured under a false impression appeared to be quite probable, as the Reference had itself mentioned him as a Munshi in the Corporation---Amount of Rs.62,00,000 as per the prosecution's own case stood recovered reducing the embezzled amount drastically---Prosecution witness being himself an accused in the case could not be termed as a credible and trustworthy witness-- Co-accused had been acquitted by Trial Court on the same evidence---Accused was above 70 years of age who remained on bail during trial on medical ground---Counsel for the accused while conceding the conviction had prayed for reduction in sentence of accused, which appeared to be highly disproportionate to the alleged embezzled amount---Conviction of accused was upheld, but his sentence was substantially reduced accordingly.

M.A. Malik for Appellant.

Rana Naeem Sarwar Special Prosecutor NAB for NAB.

Date of hearing: 7th December, 2006.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 762 #

2007 P Cr. L J 762

[Lahore]

Before Fazal-e-Miran Chauhan, J

MOEEN AKHTAR alias MEENOO----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.313/B of 2006, decided on 19th, April, 2006.

Criminal Procedure Code (V of 1898)---

---S. 497---Penal Code (XLV of 1860), S.324---Bail, grant of---School leaving certificate showed that the accused was minor at the time of occurrence and was sixteen years of age---Accused was admitted to bail, in circumstances.

Muhammad Anwar v. The State 1993 SCMR 1001 rel.

Altaf Ibrahim Qureshi for Petitioner.

Ch. Ghulam Muhammad, with Shahzad Ahmad, S.-I. with record for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 763 #

2007 P Cr. L J 763

[Lahore]

Before M. Bilal Khan and Tariq Shamim, JJ

MUHAMMAD AKRAM through Attorney----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.1120 of 2006 and Murder Reference No.707 of 2002, heard on 30th November, 2006.

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

----S. 302(b)---Appreciation of evidence---promptly lodged F.I.R. had eliminated the possibility of fabrication and false involvement of accused--Motive for the occurrence had been fully, proved by the eye-witnesses---Ocular version of the occurrence was not only credible and confidence-inspiring, but also free from any dishonest exaggerations or improvements---Eye-witnesses having no enmity with the accused had corroborated each other to prove that the deceased had been killed by him in their presence by inflicting injuries with a screw driver and a dagger---Mere relationship of the eye-witnesses with the deceased was no ground to discard their testimony in the absence of any animosity against the accused---Medical evidence to the extent of time of occurrence, locale of injuries sustained by the deceased and the weapon used in the commission of the crime, was consistent with the ocular account---Recovery of dagger from the place and in the manner as stated by the prosecution witnesses appeared to be highly improbable, but even if the same was excluded from consideration other overwhelming independent evidence available on record was sufficient to prove the prosecution case against the accused beyond reasonable doubt---Conviction and sentence of death of accused were upheld in circumstances.

Iqbal alias Bala and 2 others v. The State 1994 SCMR 1 ref.

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

----S. 302(b)---Related witness---Credibility---Mere relationship of a witness with the deceased is not sufficient to discredit him particularly when he has no motive to falsely involve the accused.

Iram Sajjad Gull for Appellant.

Kazim Iqbal Bhangu for the Complainant.

Zafar Iqbal Gondal for the State.

Date of hearing: 30th November, 2006.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 770 #

2007 P Cr. L J 770

[Lahore]

Before M. Bilal Khan, J

NAZIR AHMED----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous Nos.4312/CB and 7830/CB of 2005, decided on 12th June, 2006.

Criminal Procedure Code (V of 1898)---

----Ss.497(5) & 498---Penal Code (XLV of 1860), Ss.337-D, 337-F(ii) & 34---Bail, cancellation of---Trial Court granted pre-arrest bail to accused observing that in view of allegation of Lalkara and catching hold of victim, made against the accused, he was entitled to bail---Observation of Trial Court was absolutely perverse and arbitrary as Trial Court failed to examine the case in its totality and tried to trivialized the role of accused and proceeded to extend him extraordinary concession of pre-arrest bail---Trial Court had completely lost sight of fact that had one accused, not overwhelmed the victim,. it would not have been possible for the other accused to have inflicted dagger blows on the victim---Exercise of discretion in favour of accused, could by no stretch of argument be termed as proper and legal---When the victim, after sustaining injuries had fallen down, co-accused caused two more injuries with a dagger, one after the other on the left side of abdomen and on the right flank of the victim which injuries caused Considerable damage and offence under S.337-D, P.P.C. had been added vide Zimni---Said co-accused was allowed post-arrest bail---No substance was found in reasoning advanced by the Trial Court for grant of bail to said co-accused in a serious case attracting S.337-D, P.P.C. which entailed punishment of ten years---Trial Court while granting bail to accused had entered into realm of deeper appreciation of material available on record and had violated the principles for grant of bail in a case attracting prohibitory clause of S.497(1), Cr.P.C.---Pre-arrest and post-arrest bail allowed to accused and co-accused respectively, were cancelled and accused were remitted to custody in terms of S.497(5), Cr.P.C.

Amanullah Khan Niazi for Petitioner (in Criminal Miscellaneous Nos.4312 and 7830/CB of 2005).

Marina Parveen Chaudhry for the State.

Arif Chaudhry for Respondents (in Criminal Miscellaneous Nos.4312 and 7830/CB of 2005).

PCRLJ 2007 LAHORE HIGH COURT LAHORE 773 #

2007 P Cr. L J 773

[Lahore]

Before Sh. Hakim Ali, J

ALTAF HUSSAIN----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.883-B of 2006/BWP, decided on 13th October, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10(3) & 16-Bail, grant of---Further inquiry---Case, prima facie, appeared of elopement of a lady running away from house of her father as to make efforts for breaking the chain of her marital bond from a court of law; and then to marry the person of her own choice and not of abduction---Going of alleged abductee out of the house travelling from one city to another; engaging the services of a lady Advocate, filing of a suit for dissolution of marriage; applying for being lodged into Darul Aman on the same day; residing in Darul Aman for about nine days; thereafter appearing before the Magistrate and stating nothing of the sort of abduction or Zina-bil-Jabr, having allegedly committed with her by accused; or by associates of accused; and thereafter proceeding with father of accused; convening of Panchayat and her appearance in that Panchayat; recording of statement after five days from the return of her father's house, all said facts had spoken volume that ex facie, case was not of abduction---Accused, if he was guilty person would not have produced alleged abductee before the Punchayat---Case against accused being of further inquiry, he was granted bail, in circumstances.

Masood Ahmad Khan for Petitioner.

Raja Muhammad Sohail Iftikhar for Informant.

Mirza Muhammad Nadeem Asif for the State.

Muhammad Arsal, S.-I.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 777 #

2007 P Cr. L J 777

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD IQBAL----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.3614/B of 2005, decided on 16th December, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Prohibition (Enforcement. of Hadd) Order (4 of 1979), Arts.3 & 4---Bail, grant of---Accused though was apprehended in a well-populated area, but none from the locality was associated with the recovery proceedings and provisions of S.103, Cr.P.C. we're violated with impunity---Offence against accused did not attract the prohibitory provisions of S.497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Altaf Ibrahim Qureshi assisted by Mehr Khalil-ur-Rehman for Petitioner.

Rana Shakil Ahmad for the State (on Court's call).

PCRLJ 2007 LAHORE HIGH COURT LAHORE 778 #

2007 P Cr. L J 778

[Lahore]

Before Muhammad Farrukh Mahmud and Syed Shabbar Raza Rizvi, JJ

MUHAMMAD ASHRAF alias ACHU----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.95/J of 2003 and Murder Reference No.196 of 2002, heard on 24th January, 2007.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Complainant had made several material improvements in her statement in the Court which amounted to contradictions and omissions in the F.I.R. lodged by her---Other eye-witness in his deposition before the Court had stated the incident differently than the complainant---Complainant had even pot mentioned the parts of the body of her deceased husband which were hit by the tiring, although, she had remained with dead body after the occurrence, which omission did not appear to be natural---Contradictions and improvements appeared on almost every material point---According to Court statements of the eye-witnesses accused was armed with a .30 bore pistol, whereas complainant in the F.I.R. had not at all mentioned as to with which arm the accused was armed---Recovery of .7 mm rifle from the accused as the weapon of offence was not believable in such circumstances---No crime-empty was recovered from the spot---Three co-accused had been found innocent during investigation---Medical evidence was in conflict with ocular testimony---Prosecution case was loaded with doubts, benefit of which would go to the accused---Accused was acquitted in circumstances.

Syed Salman Haider Jaferi for Appellant.

Inayatullah Khan Niazi, Addl. A.-G. for the State.

2007 P Cr. L J 799

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

MUHAMMAD YASIN and another----Petitioners

Versus

ADDITIONAL SESSIONS JUDGE, OKARA and 2 others----Respondents

Criminal Revision No.667 of 2004, heard on 26th January, 2007.

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

----S. 222---Penal Code (XLV of 1860), Ss.420 & 506---Trial Court had failed to frame the charge in accordance with the provisions of S.222, Cr.P.C.---Validity---While framing charge under S.420, P.P.C. Trial Court had not mentioned the manner in which the accused had cheated the complainant---Date of occurrence was also wrongly mentioned in the charge---Charge framed against the accused must have contained all

material particulars as to time, place, specific name of the offence, manner in which the offence was committed and the particulars of the accused, in order to afford them opportunities to explain the matter with which they were charged and to prepared their defence at the commencement of the trial---Trial Court in not framing the charge according to S.222, Cr.P.C. had committed material error, whereby accused had been misled which had occasioned failure of justice--Impugned judgment was set aside accordingly and the case was remanded to Trial Court for decision afresh on merits in accordance with law after framing a valid charge.

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

----S. 222---Charge---Essentials---Purpose---Mandatory that charge shall contain all material particulars as to time, place as well as specific name of the alleged offence, the manner in which the offence was committed and particulars of the accused, in order to afford an opportunity to him to explain the matter with which he is charged and to prepare his case/defence, as charge is very start of trial.

Mian Jamil Akhtar for Petitioner.

Ch. Naeem Tariq Sanghera, D.P.G. for Respondents.

Date of hearing: 26th January, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 802 #

2007 P Cr. L J 802

[Lahore]

Before Fazal-e-Miran Chauhan and Javaid Sarfraz, JJ

TARIQ----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1 of 2005 in Criminal Appeal No.220 of 2002, decided on 24th January 2006.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S.201---Suspension of sentence---Applicant/accused was convicted under S.201, P.P.C. for causing disappearance of evidence regarding murder of three persons and was sentenced to six years' R.I.---Accused had undergone period of two years, eleven months and twenty four days and unexpired portion of sentence to undergo was three years and six days---Since accused was not convicted for homicide of deceased persons and was convicted only under 5.201, P.P.C. and had already suffered half portion of his sentence and there was no likelihood of appeal to be taken up in near future due to heavy pendency of appeals, sentence awarded to accused was suspended till the final decision of his appeal.

Tariq Zulfiqar Ahmad Chaudhry for Petitioner.

Rao Atif Nawaz for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 812 #

2007 P Cr. L J 812

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD TAHIR MALIK----Petitioner

Versus

DISTRICT POLICE OFFICER, MUZAFFARGARH and 5 others----Respondents

Writ Petition No.6842 of 2006, decided on 8th February, 2007.

Penal Code (XLV of 1860)---

----Ss. 337-A(ii), 337-F(i), 337-L(ii), 148 & 149---Police Order (22 of 2002), Art.18(6)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Investigation of case in violation of Police Order, 2002---Petitioner, who was nominated in a case, called in question in his constitutional petition investigation conducted by D.S.P., on the ground that same was conducted in violation of provisions of Art.18(6) of Police Order, 2002---Petitioner had contended that initially case was investigated by the local police and same was found to be false and report of cancellation of the case was made, but thereafter in violation of Art.18(6) of Police Order, 2002 D.S.P./S:D.P.O. conducted investigation and challaned petitioner/accused---Plea of petitioner was that without order of the transfer of first investigation, D.S.P. had got no jurisdiction to investigate the case---On application of petitioner, Additional Inspector-General of Police passed order whereby D.P.O. was directed to get case investigated in accordance with law---Said order had shown that it was petitioner himself who had obtained order in violation of Art. 18(6) of the Police Order, 2002 on the basis of which he succeeded in getting favourable report of cancellation of case---Under the law function of the police was only to collect the evidence and its opinion was neither admissible in evidence nor binding upon the Court---Court was to decide the fate of the case---Challan in the case had already been submitted to the court where petitioner would be having all opportunities to plead his case and defend himself---Cancellation report prepared by S.H.O. wag never placed before competent forum---No vested right accrued in favour of petitioner merely on the basis of said report submitted in his favour by Investigating Officer-Even if said cancellation report had been submitted before concerned Magistrate, he too could have disagreed with the same resulting in the case being decided by the Trial Court---Challan of the case having been submitted before the court of competent jurisdiction, no interference was called for at present stage---Constitutional petition was dismissed.

Khizar Hayat and others v. Inspector-General of Police PLD 2005 Lah. 470 and Imran Shaukat v. Incharge (Investigation), Police Station Nawankot, Lahore and 2 others 2006 MLD 501 rel.

Ahmad Raza for Petitioner.

Malik Ashiq Hussain for Respondent No.6.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 821 #

2007 P Cr. L J 821

[Lahore]

Before Hasnat Ahmad Khan, J

KHIZAR HAYAT and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.196 and Criminal Revision No.90 of 1996, heard on 7th February, 2007.

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

----Ss. 302(b) & 302(c)---Appreciation of evidence---Sentence, reduction in---F.I.R. was lodged after an inordinate delay of two days---Occurrence had taken place in front of the house of accused---Accused had also received four blunt weapon injuries including the fracture of his left fore-arm during the occurrence, which had been totally suppressed by the complainant not only in the F.I.R. but also before the Trial Court---Complainant was neither found to be an eye-witness of the occurrence. nor a reliable witness---Occurrence was the result of free fight---No previous background of hostility existed between the parties---Incident apparently had occurred on a trivial matter without any premeditation---Deceased had attacked the accused after having armed himself with a hockey---Accused while acting in his self-defence had caused repeated dagger blows on the vital part of the body of the deceased and, thus, exceeded his right of self-defence, as the deceased was not armed with any lethal weapon---Conviction of accused under S.302(b), P.P.C. was altered to S.302(c), P.P.C. and his sentence of imprisonment for life was reduced to ten years' R.I. in circumstances.

Wali Muhammad v. Ismail Kathiawar and another 1989 SCMR 256 rel.

Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274; Hassan Muhammad v. The State 1994 SCMR 1212; Lal Khan and another v. The State 1976 PCr.LJ 1437; Allah Bakhsh v. The State 1976 PCr.LJ 434 and Muhammad Asghar Ali and 5 others v. The State PLD 1984 Lah. 309 ref.

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

----S. 302(b)/34---Appreciation of evidence---Accused had allegedly caught hold of arm of the deceased at the time of occurrence---Co-accused who was attributed the role of holding the deceased in his clasp had already been acquitted by the Trial Court---Accused was empty-handed at the time of incident---Accused being the real brother of the main co-accused, his false involvement in the case could not be ruled out---Accused was acquitted on benefit of doubt in circumstances.

Sahibzada Farooq Ali Khan for Appellants.

Altaf Ibrahim Qureshi for the Complainant.

Rao Atif Nawaz for the State.

Date of hearing: 7th February, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 839 #

2007 P Cr. L J 839

[Lahore]

Before Asif Saeed Khan Khosa and Hasnat Ahmad Khan, JJ

NAZIR AHMAD and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.702 and 733 of 2004, heard on 14th February, 2007.

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

----S. 9(c)---Appreciation of evidence---Benefit of doubt---One accused' was neither apprehended at the spot" nor any "Charas" was recovered at his instance---Escape of accused from the spot in, the presence of police party comprising nine police officials was hardly believable---Purchaser of "Charas" from the accused who was the cause of action in the case was not examined by the police during investigation---Prosecution had tried to improve its case during trial by making mala fide changes--Accused had some enmity also with the police---During the trial evidence of the recovery witnesses was found to be totally inconsistent and self-contradictory---Inconsistencies and contradictions regarding recovery of "Charas" from the accused and their arrest being very material, had reflected adversely on the prosecution case---Dera from where "Charas" " was recovered was not owned by the accused, whereas the owner of the said Dera was not even interrogated by the police---Prosecution case was full of doubts---To err in acquittal was better than to err in conviction---Accused were extended the benefit of doubt and acquitted in' circumstances.

Tahir Khan and others v. The State 2005 YLR 2220 ref.

Tariq Zulfiqar Ahmad Chaudhry for Appellant.

Mumtaz Hassan Awan for the State.

Date of hearing: 14th February, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 844 #

2007 P Cr. L J 844

[Lahore]

Before Khawaja Muhammad Sharif, J

Mst. HAFIZAN BIBI and another----Petitioners

Versus

STATION HOUSE OFFICER, POLICE STATION MANGTANWALA and 7 others----Respondents

Writ Petition No.20 of 2007, decided on 22nd February, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(2)---Constitutional petition---Quashing of F.I.R.---Nikahnama of the complainant with female accused was found to be false and fabricated and was declared as a bogus one---Both the accused present in Court had admitted their Nikah with each other and declared themselves to be sui juris---Factum of majority of the accused was not even denied by the complainant---Continuation of the criminal proceedings initiated pursuant to the registration of the impugned F.I.R., thus, would be an abuse of the process of the Court---F.I.R. was quashed and constitutional petition was allowed accordingly.

Imtiaz Ahmad Awan for Petitioners.

Ch. Muhammad Hanif Khatana, Addl. A.-G. Punjab with Munir Ahmad, A.S.-I. for the State.

Shafique Ahmad Gill for Respondent.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 856 #

2007 P Cr. L J 856

[Lahore]

Before M. Bilal Khan, J

ATTA-UR-REHMA N----Petitioner

Versus

NAZAR HUSSAIN and 3 others----Respondents

Writ Petition No.10328 of 2005, heard on 11th January, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Penal Code (XLV of 1860), 5.338---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Constitutional petition---Quashing of F.I.R.---No child/foetus, according to prosecution itself, was ever recovered---Co-accused who was alleged to have got miscarriage conducted upon her, was never medically examined---Neither any record of the crime where miscarriage was conducted was taken into possession, nor statement of any of the staff members of the hospital was recorded---All essential ingredients to prove or sustain the charge under S.338, P.P.C. were missing---Continuation of trial before the Trial Court against the accused would be nothing but an abuse of the process of Court---Impugned F.I.R. along with its resultant proceedings were quashed in circumstances---Constitutional petition was allowed accordingly.

Syed Hassham Qadir Shah for Petitioner.

Tahir Mehmood Gondal, Asstt. A.-G. Punjab with Sh. Muhammad Umar DPO Sargodha, Pir Bakhsh Inspector/S.H.O. Police Station Bhera, Mattah Muhammad S.-I./S.H.O. at present Police Post Lorry Adda Police Station Bhera, Sargodha with Nazar Hussain constable, Muhammad Saleem S.-I. Police Post Rawat, District Rawalpindi with police file.

Tahir Mehmood Sindhu as Amicus Curiae.

Date of hearing: 11th January, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 864 #

2007 P Cr. L J 864

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD BASHIR alias BAKOLA and 8 others----Petitioners

Versus

SUPERINTENDENT OF POLICE, CITY DIVISION, LAHORE and 9 others ----Respondents

Writ Petition No.11676 of 2006, decided on 14th February, 2007.

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

----Art. 199---Penal Code (XLV of 1860), Ss.420/468/471---Constitutional petition---Quashing of F..I.R., refusal of---Investigation of the case was still pending---High Court in a bail application filed by an accused had directed the Investigating Officer to send certain documents for the opinion of Handwriting Expert---No interference at such stage of investigation in its process was called for---Practice of quashing of the F.I.Rs. when the case involved controversial questions of law and fact was not approved---Contentions raised by the petitioners needed factual inquiry which could not be resorted to by High Court while seized of a Constitutional petition---Section 195(1)(c) did not place any embargo against registration of case---Taking of cognizance and recording of F.I:R. being two separate concepts were not to be intermingled---Constitutional petition was dismissed in circumstances.

Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192; Muhammad Saleem Bhatti v. Syed Safdar Ali Rizvi and 2 others 2006 SCMR 1957 and Industrial Development Bank of Pakistan and others v. Mian Asim Fareed and others 2006 SCMR 483 ref.

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

----Art. 199---Criminal Procedure Code (V of 1898), S.561-A---Quashing of F.I.R.---Practice of quashing of F.I.R. when the case involves controversial questions of law and fact was not approved.

Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192 and Muhammad Saleem Bhatti v. Syed Safdar Ali Rizvi and 2 others 2006 SCMR 1957 ref.

---Ss. 195(1)(c) & 154---Intent and import---Section 195(1)(c), Cr.P.C. does not place any embargo against registration of case---Taking of cognizance and recording of F.I.R. are two separate concepts which are not to be intermingled.

Industrial Development Bank of Pakistan and others v. Mian Asim Fareed and others 2006 SCMR 483 ref.

Dr. A. Basit for Petitioners.

Tahir Mehmood Gondal, Asstt. A.-G. for the State.

?Mian Gauhar Rafique for Respondent No.4.

Akhtar Hussain, S.-I. Police Station Lower Mall, Lahore with police file.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 873 #

2007 P Cr. L J 873

[Lahore]

Before M. Bilal Khan, J

THE STATE through Special Prosecutor (Narcotics, Lahore)----Appellant

Versus

MUNAWAR HUSSAIN and 2 others----Respondents

Criminal, Appeal No.1729 of 2006, heard on 14th February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Control of Narcotic Substances Act (XXV of 1997), Ss.6/7/8/9(c)/14/15/16---Entire case property was directed by Trial Court to be produced before the Court---Validity---Poppy straw weighing 9013. Kgs. allegedly recovered from accused was lying at Customs House---State, during trial moved an application under S.516-A, Cr.P.C. for permission to obtain samples from the recovered substance, which was dismissed by trial Court with the direction to prosecution to produce the entire case property before the Court along with the prosecution witnesses---Production of unmanageable bulk of 9013 Kgs. of poppy straw in the Court on each and every date of hearing could cause serious hardship and inconvenience to the State---Legislature, in order to meet precisely such a situation, had allowed samples to be taken by incorporating proviso to S.516-A, Cr.P.C.---Even otherwise, record showed that in the pre-de novo proceedings in the trial the case property i.e. the poppy straw had been produced in the Court and had been exhibited "as P.1" while recording statement of "P.W.1"---Accused were unable to show if any prejudice would be caused to them by allowing samples to be taken, especially when they had denied the ownership or possession of the recovered poppy straw---Insistence of Trial Court on production of the huge pile of poppy straw in Court on each date of hearing would negate the very purpose of S.516-A, Cr.P.C.---Impugned order of Trial Court was set aside and the application of the State for permission to take samples of the case property moved before Trial Court was accepted---Appeal was allowed accordingly.

Major (Retd.) Aftab Ahmad Khan, Special Prosecutor of A.N.F. for the State.

Junaid Razzaq for Respondent No. 1.

Sh. Muhammad Akbar for Respondent No.3.

Date of hearing: 14th February, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 883 #

2007 P Cr. L J 883

[Lahore]

Before Fazal-e-Miran Chauhan, J

MUHAMMAD KHAN----Petitioner

Versus

INAYAT and 3 others----Respondents

Criminal Miscellaneous No.1646/M of 2006, heard on 16th February, 2007.

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

----S. 561-A---Penal Code (XLV of 1860), Ss.337-F(iv) & 337-F(vi)---Petition for enhancement of sentence---Revision petition filed by the complainant before the Sessions Court for enhancement of sentence of accused had already been dismissed---Present petition filed by. the complainant for enhancement of sentence was not maintainable--.High Court in exercise of its powers under S.561-A, Cr.P.C. was not competent to enhance the sentence---Inherent powers were not supposed to be exercised to override the express provisions of law, nor the same could be invoked in the presence of express provisions dealing with a particular subject---Said powers also could not be used to defeat the express intention of the Legislature---Petition was dismissed accordingly.

Haji Sabir and 9 others v. The State 2001 PCr.LJ 754 and Ashiq Hussain Thahim v. The State and 2 others 1999 MLD 535 ref.

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

----S. 561-A---Inherent powers of High Court---Scope---Enhancement of sentence---High Court under S.561-A, Cr.P.C., no doubt, has the power to modify the sentence of accused, but it has no power to enhance his sentence.

Haji Sabir and 9 others v. The State 2001 PCr.LJ 754 ref.

----S. 561-A---Inherent jurisdiction of High Court---Scope---Inherent powers of High Court are not supposed to be exercised to override express provisions of law.

Haji Sabir and 9 others v. The State 2001 PCr.LJ 754 ref.

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

----S. 561-A---Inherent jurisdiction of High Court---Scope---Powers under S.561-A, Cr.P.C. cannot be invoked in the presence of express provisions dealing with a particular subject, nor the same can be used to defeat the express intention of the Legislature.

Haji Sabir and 9 others v. The State 2001 PCr.LJ 754 and Ashiq Hussain Thahim v. The State and 2 others 1999 MLD 535 ref.

Nazeer Ahmad for Petitioner.

?Abdul Majeed Chishti for the State.

Date of hearing: 16th February, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 891 #

2007 P Cr. L J 891

[Lahore]

Before Tariq Shamim, J

NOOR ZADA----Petitioner

Versus

MUHAMMAD KHALID and 6 others----Respondents

Writ Petition No.9703 of 2006, decided on 9th February, 2007.

(a) Illegal Dispossession Act (XI of 2005)---

----S.3---Criminal Procedure Code (V of 1898), Ss.202, 203 & 537---Constitution of Pakistan (1973) Art. 199---Constitutional petition--Private complaint filed by the petitioner against his unlawful dispossession by the accused respondents from the plot in dispute, had been dismissed by Sessions Court vide impugned order--- validity---Departure from the provisions of S.202, Cr.P.C. in all cases would not culminate in bad proceedings liable to be set aside in view of the provisions of S.537, Cr.P.C.---Neither any miscarriage of justice nor any prejudice had been caused to the petitioner merely on account of non-recording of reasons by Trial Court---Evidence led by the petitioner-complainant before the Trial Court was not sufficient to satisfy the Court as to the correctness of his case---Provisions of S.202, Cr.P.C. were enabling provisions and not obligatory---Court was competent to dismiss the complaint under S.203, Cr.P.C. if no sufficient grounds were available for proceeding, by briefly recording the reasons for doing so---Trial Court, thus, had committed no illegality---Issuance of summons or notice to the accused before issuing process by the Court holding such inquiry, would not vitiate the proceedings as the same being a mere irregularity was curable under S.537, Cr.P.C.---Trial Court after recording statements of witnesses and perusing the documents including the investigation report, had concluded that no illegal dispossession of the petitioner had taken place---Even otherwise, dispute between the parties over the plot in dispute being sub judice before a Civil Court, petitioner obviously had filed the complaint to circumvent the normal civil proceedings and to pressurize the respondents by criminal process---Scope of Illegal Dispossession Act, 2005, being restricted to cases of illegal dispossession by property grabbers/Qabza Group, the same did not apply to ordinary cases involving disputes over possession of immovable property---Accused respondents did not have the credentials or antecedents of a Qabza Group or Land Mafia---Matter was sub judice before a Civil Court which was competent to decide the dispute between the parties---Constitutional petition was dismissed in circumstances.

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

----Ss. 202 & 537-Summoning of accused at preliminary stage before issuing process---Effect---Where the Court while holding an inquiry in a private complaint issues summons/notice to the accused before issuing process, such action would not vitiate the proceedings as it would be a mere irregularity curable under S.537, Cr.P.C.

-------Preamble---Scope of Illegal Dispossession Act, 2005---Illegal Dispossession Act, 2005, is restricted to cases of illegal dispossession from immovable property at the hands of a class or group of persons who have the antecedents of being property grabbers/Qabza Group---Said Act has no applicability to ordinary cases involving disputes over possession of immovable property.

Ch. Nemat Ali Nagra for Petitioner.

Ch. Muhammad Jamil Zahid for Respondent.

Shahbaz Ahmad Dhillon, Asstt. A.-G. for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 896 #

2007 P Cr. L J 896

[Lahore]

Before M. Bilal Khan and Tariq Shamim, JJ

THE STATE through Deputy Director (Legal) ANF----Applicant

Versus

Syed SHAFIQ-UR-REHMAN and another----Respondents

Criminal Miscellaneous No.8596/BC of 2006, decided on 1st February, 2007.

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

----S. 497(5)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Cancellation of bail, refusal of---Conclusions arrived at by Trial Court were based on genuine and logical reasons---No direct evidence was available on record to connect the accused with the commission of the crime---Conversation between the accused on telephone did not ipso facto establish having taken place in connection with the crime alleged against them---Bank had not issued any document to show that the accused himself had opened the referred account number under a fake name or that he had been operating the said account with his own signatures---Prosecution even could not establish any connection of the accused with the house from where drugs were recovered by the raiding party---Statement made by accused before Magistrate under S.164, Cr.P.C. on oath was inadmissible under the law and was not volunteered by him---Possibility of the female accused having slipped away in the presence of very heavy contingent of raiding party 'was very remote and although two members of the raiding party had seen her sitting in the car, yet no identification parade was held to identify her---No illegality or infirmity could be pointed out in the order of Trial Court granting bail to accused---Petition for cancellation of bail was dismissed accordingly.

The State v. Syed Abdul Qayyum 2001 SCMR 14; Gul Zaman v. The State 1991 SCMR 1271 and State v. Abdul Ghaffar 1996 SCMR 678 ref.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.51 & 9(c)---Bail, grant of---Section 51 of Control of Narcotic Substances Act, 1997 is no bar in appropriate cases for grant of bail---Courts in appropriate cases have the power to grant bail despite the embargo contained in S.51 of the Control of Narcotic Substances Act, 1997.

The State v. Syed Abdul Qayyum 2001 SCMR 14 and Gul Zaman v. The State 1991 SCMR 1271 rel.

----Ss. 497 & 497(5)---Cancellation of bail---Discretion, exercise of---Principles---Considerations for grant of bail and cancellation of bail are entirely different---Once a Court in exercise of its discretion grants concession of bail, the same can be cancelled only if the Court finds the bail granting order to be perverse and arbitrary---Section 497(5), Cr.P.C. does not command the Court to cancel, the bail even when the offences are punishable with death or imprisonment for life and even if grant of bail is prohibited under S.497(1), Cr.P.C.---Discretion is left with the Courts under S.497(5), Cr.P.C. which is para materia with the principles applied for setting aside orders of acquittal.

State v. Abdul Ghaffar 1996 SCMR 678 ref.

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

----S. 497(5)---Cancellation of bail---Principles---Court will not interfere with an order unless the reasons given therein are speculative, artificial in nature or the order is based on no evidence or misinterpretation of evidence or the conclusions drawn by the Courts below are perverse or foolish resulting in miscarriage of justice.

State v. Abdul Ghaffar 1996 SCMR 678 ref.

Ihtisham Qadir Shah for Petitioner.

Saeed Ullah Khan and Azam Nazeer Tarar for Respondents.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 905 #

2007 P Cr. L J 905

[Lahore]

Before Fazal-e-Miran Chauhan, J

MUHAMMAD ASHRAF----Applicant

Versus

THE STATE and 4 others----Respondents

Criminal Revision No.751 of 2006, decided on 9th February, 2007.

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

----S. 540---Penal Code (XLV of 1860), Ss.302/148/149---Trial Court had summoned on the application of accused two Police Officers associated with the investigation of the case as Court-witnesses, after the close of prosecution evidence---Validity---Both the said two Police Officers i.e. D.S.P. (Investigation) and S.P. (Investigation) had found the accused to be innocent during investigation and they were not produced at trial by the prosecution---Accused had every right to produce evidence in defence or to file an application to summon any person as Court-witness---Section 540, Cr.P.C. had given unlimited powers to Court to summon any person whose evidence was essential for just decision of the case, even including the person intended to be produced as a defence witness---Main purpose of the entire judicial proceedings was to find out truth, arrive at a correct decision and to. see that no innocent person was punished merely because of certain technical omissions on his part or on the part of his counsel---Accused must be afforded reasonable opportunity of rebutting the evidence going against them, particularly where the Court itself had brought such evidence on record after closing of prosecution evidence---Denial of such opportunity to accused was bound to prejudice their case who had been declared innocent by two Investigating Officers---Impugned order, did not suffer from any illegality or material irregularity---Revision was dismissed accordingly.

Haji Muhammad Abdullah v. The State 1995 SCMR 821; Farman Ali and 2 others v. The State 1992 SCMR 2055; Khadim Hussain v. The State 2000 YLR 1562; Bashir Ahmad v. The State 1988 MLD 2435; Muhammad Ashraf v. The State 2004 PCr.LJ 405; Muhammad Hussain and 4 others v. The State and another 1991 PCr.LJ 1081 and Riaz v. The State 1992 PCr.LJ 911 ref.

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

----S. 540---Power to summon material witnesses etc.---Scope---Section 540, Cr.P.C. gives unlimited power to Court to summon any person whose evidence is essential for just decision of the case, even including the person intended to be produced as a defence witness.

Muhammad Hussain and 4 others v. The State and another 1991 PCr.LJ 1081 ref.

Ch. Muhammad Rafique for Petitioner.

Zia Ullah Khan for Respondents Nos.2 to 5.

M. Aslam Malik for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 914 #

2007 P Cr. L J 914

[Lahore]

Before Tariq Shamim, J

MUHAMMAD SHARIF----Petitioner

Versus

THE STATE and 8 others----Respondents

Criminal Revision No.752 of 2006, heard on 21st February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 540---Penal Code (XLV of 1860), Ss.302/324/148/149---Trial Court on the application of defence had summoned two persons as Court witnesses---Validity---Both the said persons were acquainted with the circumstances of the case and had been examined by the Investigating Officer and in the background of investigation their evidence was essential to the just decision of the case---One of the said persons was not an eye-witness of the occurrence, but before the Investigating Officer she had advanced the plea taken by one accused and, as such, she was essentially a defence witness and her testimony would prejudice the prosecution case and put the accused in an advantageous position as the accused would have an opportunity to cross-examine their own witness---No doubt second part of S.540, Cr.P.C. was mandatory, but in view of the aforesaid reasons summoning of the said person as a Court-witness was neither expedient nor in the fitness of things and, therefore, she could be summoned by Trial Court as a defence witness---Other person was originally joined in the investigation by the police being acquainted with the circumstances of the crime on account of proximity of his shop from the place of occurrence---Said person could not be dubbed as a nominee of the accused and, therefore, summoning him as a Court-witness by Trial Court was neither against law nor prejudicial in any manner to the case of complainant---Revision was disposed of accordingly with partial acceptance.

Hafiz Muhammad Hanif Zafar for Petitioner.

Maazullah Khan Sherwani for Respondents.

Khurram Shabbir for the State.

Date of hearing: 21st February, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 918 #

2007 P Cr. L J 918

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ARIF----Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and 6 others----Respondents

Writ Petition No.11912 of 2006, heard on 26th February, 2007.

Illegal Dispossession Act (XI of 2005)---

----S. 3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Complaint filed by the petitioner against the accused respondents under S.3 of the Illegal Dispossession Act, 2005, had been dismissed by Sessions Court---Validity---Accused had allegedly entered in the house in dispute in pursuance of an agreement to sell executed by its owner---Said agreement to sell was never produced before Trial Court, nor even the marginal witnesses of the same were ever produced to support the case of respondents---F.I.R. got registered by the .respondent under Ss.448 & 457, P.P.C. was found to be false during investigation and a cancellation report was pending verification with the D.S.P. Circle---Electricity bills produced by the petitioner-complainant on record showed him being in possession of the house in question, who was the real brother of the widow of the owner of the house---Non-filing of suit for specific performance by the accused respondents upto the death of the owner of the house till filing of the present complaint, had also cast doubt on the veracity of their version, who had never made any effort to get the house mutated in their favour---No legal title qua the house in question was available to the respondents---Impugned judgment passed by Sessions Court was illegal, unjust, perverse, arbitrary and against the record which had led to miscarriage of justice and the same was set aside accordingly---Accused respondents had committed the offence under S.3 of the Illegal Dispossession Act, 2005, whereupon they were convicted and sentenced to undergo four years' R.I. each with a fine of Rs.50,000 each or in default to further undergo six months' S.I. each---Accused-respondents were directed to hand over the possession of the house in question to the petitioner---Constitutional petition was accepted accordingly.

Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah. 231 ref.

Farooq Amjad Meer for Petitioner.

Ch. Muhammad Hanif Khatana, A.A.-G. and Naseeruddin Khan Nayyar, A.P.G. for the State.

Mushtaq Ahmad Qureshi for Respondents Nos.2 to 5.

Date of hearing: 26th February, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 927 #

2007 P Cr. L J 927

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD ISHAQ SAQI----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous Nos.10404/B of 2006 and 945/B of 2007, decided on 28th February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Sales Tax Act (VII of 1990), Ss.2(37), 3(1)(a), 4(a), 6, 7, 8, 10, 22, 26, 33, 34, 37 & 73---Bail, refusal of---Size of the fraud detected, was in excess of Rs.9 crore; which had shown that Government exchequer had been ravaged with merciless vengeance by adopting various contraptions and techniques by accused persons---Accused had clearly ensured that their signatures did not appear on the documents, like cheque books etc., but statements of witnesses had depicted the manner in which accused had been operating---Accused did not confine their activities only to those Companies mentioned in F.I.R., but also to other Companies---Mere fact that offence did not attract the prohibitory clause of S.497(1), Cr.P.C., was not sufficient by itself to release accused on bail---Cruel manner in which State exchequer had been ravaged, could not lightly be brushed aside---Bail could not be allowed to swindlers and plunderers of the national exchequer for the simple reason that offences did not attract prohibitory clause of S.497(1), Cr.P.C.---Bail petitions were dismissed.

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

Dr. A. Basit for Petitioner.

Mian Muhammad Abbas for Petitioner in (Criminal Miscellaneous No.945/B of 2007).

M. Nawaz Cheema Legal Advisor to Customs Department.

M. Saqif Saeed, Deputy Director (Intelligence and Investigation) Customs, Excise and Sales Tax Gujranwala with Haider Ali Khan, S.I.O. Customs with record.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 938 #

2007 P Cr. L J 938

[Lahore]

Before Hasnat Ahmad Khan, J

TALIB HUSSAIN and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.629 and Criminal Revision No.353 of 2003, heard on 22nd January, 2007.

Penal Code (XLV of 1860)---

----Ss. 302 & 311---Appreciation of evidence---Benefit of doubt---No immediate cause of murder of deceased was mentioned by complainant in his application wherein he had simply stated that deceased being step-mother of accused used to quarrel with the real mother of accused and due to that reason accused used to hate the deceased---No implicit reliance could be placed upon the evidence regarding motive---Witnesses of alleged extra-judicial confession of accused though were named in F.I.R., but they being not truthful witnesses, were rightly disbelieved by the Trial Court---Prosecution evidence was mainly based upon the statements of two prosecution witnesses, who could not be termed as natural witnesses and their evidence was full of contradictions and improvements---Evidence of said prosecution witnesses appeared to have been created by Investigating Officer with the collaboration of complainant---Evidence of complainant, who appeared as prosecution witness, could not be relied upon as he was not the eye-witness--One tainted evidence could not corroborate another piece of evidence---Neither any recovery of incriminating material was effected at the instance of accused nor it was proved by the prosecution as to wherefrom alleged poison was procured or purchased by accused---Medical evidence provided by Lady Doctor and reports of Chemical Examiner were also not so much helpful to prosecution inasmuch as according to the report of Chemical Examiner, poison belonged to the tranquillizer group, but tranquillizer group had not been specified---Doctor admitted that taking in of excessive dose of the medicine or expired medicine could also be probable cause of death--Prosecution, in circumstances had remained totally unsuccessful to prove case against accused---Accused being entitled to be given benefit of doubt, conviction and sentences awarded to them could not sustain---Both accused were acquitted of the charge, in circumstances.

Sh. Muhammad Aslam and another v. Shaukat Ali alias Shauka and another 1997 SCMR 1307; Bashir Ahmad v. State 2004 SCMR 236; Muhammad Shafique v. State 2004 PCr.LJ 1706; Nazir Ahmad v. State 2006 PCr.LJ 1684 and Dildar Hussain v. Muhammad Afzal alias Chhala PLD 2004 SC 633 rel.

Sardar Altaf Hussain Khan for Appellants.

Shaukat Hussain Kharal for the State.

Muhammad Zafar Khan Sial for the Complainant.

Dates of hearing; 16th and 22nd January, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 947 #

2007 P Cr. L J 947

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

HAIDER ALI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.662 of 2000 and Murder Reference No.78 of 2001, heard on 6th February, 2007.

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

----S. 302(b)---Appreciation of evidence---Both the accused were not only named in the F.I.R., but specific role and specific injuries were also attributed to them---Complainant, however, in his supplementary statement substituted brother of accused as real culprit---Eye-witnesses were not found to be present at the scene of occurrence and they had named the accused merely on suspicion---Co-accused had been acquitted by the Trial Court and his acquittal had not been challenged---Both the accused according to eye-witnesses had fired at the deceased and they having been disbelieved qua one accused, very strong independent reliable evidence was required to maintain conviction of the other accused, which was not available---Medical evidence had not supported the ocular evidence---Recovery of pistol from the accused was inconsequential in the absence of any crime-empty and being in utter violation of the provisions of S.103, Cr.P.C.---Motive behind the occurrence was not proved, as it was not believable that despite availability of the suspected murderer, the assailant would take the life of a person who was pursuing the case---Accused was acquitted in circumstances.

Zaman Iqbal v. The State 1990 MLD 90; Thoba and another v. The State PLD 1963 SC 40 and Bagh Ali and 4 others v. The State PLD 1973 SC 321 ref.

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

----S. 302(b)---Witness---Interested and partisan witness---Evidentiary value---On capital charge evidence must come from unimpeachable source or be supported by strong circumstances that might remove inherent doubt attaching to the evidence of interested or partisan witnesses.

Thoba and another v. The State PLD 1963 SC 40 and Bagh Ali and 4 others v. The State PLD 1973 SC 321 ref.

Sardar Khurram Latif Khan Khosa for Appellant.

A.H. Masood and Masood Sadiq for the State (in Criminal Appeal No.662 of 2000 and Murder Reference No.78 of 2001).

Muhammad Yar Khan Daha for the Complainant.

?Date of hearing: 6th February, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 953 #

2007 P Cr. L J 953

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD SALEEM alias PAPOO----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.145/B. of 2007, decided on 15th February, 2007.

Criminal Procedure Code (V or 1898)---

----S. 497(2)-Penal Code (XLV of 1860), Ss.324 & 364---Bail, grant of---Further inquiry---F.I.R. in the case was lodged with an inordinate delay---Offence was allegedly committed within the jurisdiction of police station at place 'K', but case was registered illegally at police station at place 'M' in a different District---Mother of the victim who had also allegedly received acid burns in the same occurrence, had refused to support the case of complainant---She had filed affidavit exonerating accused from the alleged offence---Improbability of commission of offence by two accused jointly and the question that out of the two accused, who was responsible for the crime, would require further inquiry---During the process of whole investigation, being one witness, nobody had come forward to support the case of the victim---Question of applicability of Ss.324 & 364, P.P.C., in such circumstances, would also need further probe---During the investigation no incriminatory material was recovered at the instance of accused---Victim or her witness did not appear before Investigating Officer to prove contention of complainant that accused remained fugitive from law---Accused was arrested after recording the statement of one witness who joined investigation after passing so many months---No proceedings, under Ss.87/88, Cr.P.C. were initiated against accused---Despite arrest of accused trial had not started---Accused could not be detained in jail for indefinite period---Mistaken grant of bail could be repaid at the time of conclusion of the trial, but accused, who was finally found innocent, could not be compensated for the incarceration undergone by him due to the refusal of bail---Benefit of doubt could be given even at bail stage---Accused having become able to make out a case for grant of post-arrest bail, he was allowed bail.

Nafees Ahmad Ansari for Petitioner.

Kh. Qaiser Butt for the Complainant.

Zahoor Ahmad Chughtai and Muhammad Nawaz S.-I. for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 956 #

2007 P Cr. L J 956

[Lahore]

Before Muhammad Jehangir Arshad, J

Mst. SAKEENA MAI----Petitioner

Versus

GOVERNMENT OF PUNJAB through, Secretary to Government of Punjab, Home Department, Lahore and 5 others----Respondents

Writ Petition No.399 of 2007, decided on 9th February, 2007.

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

----S. 11-EEE---Constitution of Pakistan (1973), Art.199---Constitutional petition---Petitioner had impugned order passed by Secretary to Provincial Government whereby arrest and detention of accused/detenu in exercise of powers under S.11-EEE of Anti-Terrorism Act, 1997 was directed---Law officer in his report had simply submitted a report of District Police Officer and appended a list of cases in which detenu/accused had been involved--Law officer had further stated that impugned order was passed on basis of secret reports of the Agencies which could not be produced in the court being privileged documents---Question as to whether certain document was privileged one, could only be determined by the court and not by the Authority relying upon the documents while passing impugned order---No sufficient material was available before detaining Authority at the time of passing impugned order, except report of District Police Officer and the list of cases in which accused had been involved in past---Detenu had already furnished bond in terms of S.11-EEE of Anti-Terrorism Act, 1997 and no material was available on record that either the detenu committed violation of said bond or that any fresh case was registered against him after submission of said bond--No evidence was also on record to show that detenu was convicted even in any of alleged criminal cases---Report of District Police Officer was based on mere apprehensions and did not disclose even a single event of physical involvement or participation of detenu in any anti-social activity in order to attract provisions of S.11-EEE of Anti-Terrorism Act, 1997---Impugned order passed against accused/detenu was declared to be without lawful authority and detenu was directed to be released.

Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142; Government of Punjab through Secretary, Services and General Administration Department, Government of Punjab, Lahore v. Ch. Muhammad Mahmood Advocate and 22 others PLD 1988 SC 376; Abu Bakar Muhammad Reza v. Secretary to Government of Punjab, Home Department and 3 others PLD 2005 Lah. 370; Abdul Rauf v. Chief Commissioner, Islamabad and 5 others PLD 2006 Lah. 111; Mir Abdul Baqi Baluch v. The Government of Pakistan through the Cabinet Secretary, Rawalpindi and others PLD 1968 SC 323; Mulazim Hussain Shah v. Province of Punjab through Secretary, Home Department, Government of Punjab, Lahore and 2 others PLD 2006 Lah. 108 and Ch. Manzoor Elahi v. Federation of Pakistan and others PLD 1975 SC 66 rel.

M.A. Hayat Haraj for Petitioner.

Mubashir Latif Gill, Asstt. A.-G. with Navid Rouf, Deputy Secretary, Home Department, Lahore and Shahzad Akhtar, D.S.P. (Legal), Khanewal for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 961 #

2007 P Cr. L J 961

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

SIKANDAR HAYAT----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.215-J and Murder Reference No.309 of 2002, heard on 20th February, 2007.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 324---Appreciation of evidence---Occurrence had taken place inside the Haveli of the complainant---Prosecution witnesses being inmates of the house were natural witnesses of the incident---Presence of the injured witness at the scene of occurrence could not be denied---Promptly lodged F.I.R. with details of the occurrence indicated the presence of complainant at the spot---Ocular testimony was natural, coherent and confidence-inspiring which was supported by medical evidence---Eye-witnesses had no reason for false implication of accused in the case---Motive for the incident was proved---Abscondence of accused was also proved---Direct evidence was also corroborated by the promptly lodged F.I.R., motive and abscondence of accused---Accused, while armed with a gun went to the house of the complainant and killed his mother-in-law and also caused serious fire-arm injuries to the daughter of the complainant---No mitigating circumstances existed in favour of accused---Convictions and sentences of accused were upheld in circumstances.

Ms. Raheela Raees for Appellant.

Ch. Muhammad Hussain Chhachhar, Addl. Prosecutor-General for the State.

Date of hearing: 20th February, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 966 #

2007 P Cr. L J 966

[Lahore]

Before Hasnat Ahmad Khan, J

BASHIR AHMAD and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.4108/B of 2006, decided on 13th February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Bail, refusal of---F.I.R. in the case was lodged promptly---Accused were duly named in said F.I.R. with specific role of causing repeated fatal blows to deceased with formidable weapons---Though there was some conflict between medical evidence and ocular evidence, but bail could not be granted simply on such inconsistency---Contentions raised by counsel for accused related to the deeper appreciation of evidence, which was not permissible at the bail stage--Opinion of the police was neither admissible in evidence nor binding upon the courts---Prosecution version was prima facie, supported by the natural eye witnesses---Reasonable grounds were available on the record to believe that accused had committed offence which fell within the prohibitory clause of S.497(1), Cr.P.C.---Accused, in circumstances, were not entitled to the, concession of post arrest bail.

Mian Muhammad Jamil Qureshi for Petitioners.

Mubashar Saghir for the Complainant.

Rao Atif Nawaz and Muhammad Shafi S.-I. for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 969 #

2007 P Cr. L J 969

[Lahore]

Before Muhammad Farrukh Mahmud and Syed Shabbar Raza Rizvi, JJ

MUHAMMAD RAMZAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.284 and Murder Reference No.124 of 2002, heard on 22nd January, 2007.

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

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Two crime-empties collected from the spot had tallied with the gun recovered at the instance of accused, meaning thereby that both the fires were shot by him---Eye-witnesses were not found to be present at the scene of occurrence---Plea of self-defence taken by accused was not supported either by any evidence on record or by the circumstances of the case---Deceased according to the prosecution case itself had ploughed the disputed land a night prior to the occurrence---Accused in his first version had stated that he lost his control after hearing the taunting remarks passed by the deceased which added fuel to the fire and he fired two shots with his gun at the, deceased---Murder of the deceased by the accused, thus, stood proved by his own words, which was corroborated by the evidence of recovery and the motive---Abusive and taunting language used by deceased could create a mitigating circumstance for awarding lesser punishment to accused---Conviction of accused was consequently maintained, but his death sentence was reduced to imprisonment for life in circumstances.

PLD 2004 SC 34; 2005 SCMR 427; Abdul Haque v. The State and Panther PLD 1996 SC 1 and Mujahid Pervaiz v. Mattiullah and others 2006 SCMR 1127 ref.

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

----S. 302(b)-Murder---Sentence---Mitigating circumstance---Where occurrence was the result of abusive and taunting language, sentence of imprisonment for life was deemed fit instead of sentence of death.

Abdul Haque v. The State and another PLD 1996 SC 1 and Mujahid Pervaiz v. Mattiullah and others 2006 SCMR 1127 ref.

Aftab Farrukh for Appellant.

Muhammad Asghar Rokhari and Muhammad Farooq Qureshi for the Complainant.

Inayat Ullah Khan, Addl. A.-G. for the State.

Date of hearing: 22nd January, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 976 #

2007 P Cr. L J 976

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD IQBAL----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.3595/B of 2006, decided on 1st February, 2007.

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

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10 & 18---Bail, refusal of---Offence of Zina-bil-Jabr was committed with a girl of tender age of 10 years in a broad-daylight---Occurrence was seen by the witnesses and report regarding the occurrence was lodged on the same day---Record produced by the police had contradicted the plea of accused that he had not been challaned under S.10 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, but it had shown that offence under S.18 of the Ordinance, was deleted and accused had been challaned under S.10 of the Ordinance---Positive report of Chemical Examiner had tentatively supported case of prosecution--Challan had already been submitted and case was. ripe for start of the trial---Accused had not moved for declaring him as juvenile and until and unless he was declared juvenile by the court of competent jurisdiction, he could not be given benefit under the Juvenile Justice System Ordinance, 2000---Worth and authenticity of the school leaving certificate of accused, showing him of tender age, would also be seen at the relevant time---Regarding plea of accused that investigation was conducted in violation of S.156-B, Cr.P.C., bail could not be granted simply on said technical ground, especially when it was a case of Zina-bil-Jabr committed with a very little girl of about 10 years of age---Process of the investigation was not challenged by accused at the relevant time and after submission of the challan, the Trial Court was seized of the matter and pros and cons of the case would be thrashed out by the said court---Offence allegedly committed by accused, besides being abominable and heinous in nature, fell within the prohibitory clause of S.497, Cr.P.C.---Accused being not entitled to concession of bail, his bail application was dismissed.

Muhammad Sadiq and others v. The State 1980 SCMR 203. Rasheed alias Sheedi v. The State 2006 YLR 1463; Ahmad Sher v. The State and another 2006 PCr.LJ 1450 and Noor-ul-Hassan and another v. The State and another 2006 PCr.LJ 2001 rel.

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

----Preamble---Criminal Procedure Code (V of 1898), S.497---Accused could not be given benefit under the Juvenile Justice System Ordinance, 2000 until and unless he was declared juvenile by the Court of competent jurisdiction.

Sh. Abdul Samad for Petitioner.

Mian Sajjad Ahmad Chowan for the Complainant.

Ahmad Bakhsh Reader to the Court of Mr. Abdul Mustafa, Additional Sessions Judge, Alipur and Muhammad Yaqoob, A.S.-I. for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 979 #

2007 P Cr. L J 979

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

ABDUL RAZZAK alias KOTCHI----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.3558/B of 2006, decided on 6th December, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.382/411/337-A(ii)/337-L(2)---Bail, refusal of---Accused was caught red-handed while committing theft---Accused and his absconding co-accused had given Sota blows to the complainant and his companions, who had tried to apprehend them after chasing them---Offence under S.382, P.P.C. fell within the prohibitory clause of S.497(1), Cr.P.C.---Accused was a habitual offender who had been committing similar offences and creating fear and terror in the area---Accused was a hardened criminal and a record holder---Many cases of similar nature had already been registered against him---Co-accused of the main accused was still an absconder---If such persons were released on bail within a short time, they would certainly take the law lightly---Challan had been submitted in the Court---Bail was refused to accused in circumstances.

Abdul Aziz Khan Niazi for Petitioner.

Zahoor Ahmad and Ghulam Shabbir S.-I. for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 980 #

2007 P Cr. L J 980

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD RAMZAN and 2 others----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.736/B of 2007, decided on 1st February, 2007.

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

----S. 498---Penal Code (XLV of 1860), Ss.420/468/471---Pre-arrest bail, refusal of---Whole controversy related to a power of attorney---Revenue Authorities had declared that the stamp vendor was never issued a licence to sell the stamp paper on which the power of attorney was prepared and that necessary entries did not exist in the record---Police had found the accused guilty and fully involved in the case on the basis of the material provided by Revenue Authorities---Record of Revenue Authorities as well as police investigation had showed that sufficient incriminating material, prima facie, was available against the accused---No ulterior motive, enmity, ill-will or mala fides could be attributed to the Revenue Authorities or to the police for false implication of accused in the case---Court could not enter into a detailed inquiry or appreciation of evidence at bail stage---Original power of attorney was still to be recovered from the accused---Pre-arrest bail was declined to accused in circumstances.

Murad Khan's case PLD 1983 SC 82; Shabir Ahmad v. The State PLD 1981 Lah. 599; Muhammad Aslam v. The State 1999 MLD 1833; Muhammad Siddiq Awan v. The State 2003 PCr.LJ 890 and Syed Ali Hasnain Kirmani v. The State 2001 PCr.R 890 ref.

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

----S. 498---Pre-arrest bail---Guidelines---Court should sparingly exercise the power to grant bail before arrest in appropriate cases and strictly avoid to exercise the same at random, which can embarrass the prosecution in investigation---Each case has to be dealt with on its own merits keeping the balance---Court before passing an order of pre-arrest bail should seriously apply its mind and no murderer, burglar, dacoit or a person accused of offence disturbing the tranquility of the State and destroying the peaceful living of citizen should automatically get bail before arrest on mere asking.

Shabir Ahmad v. The State PLD 1981 Lah. 599 ref.

?Ch. Abdul Rashid for Petitioners.

Asif Mahmood Cheema, D.P.G. for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 985 #

2007 P Cr. L J 985

[Lahore]

Before Muhammad Muzammal Khan, J

AMIR SARDAR----Petitioner

Versus

THE STATE and 3 others----Respondents

Writ Petition No.1696 of 2007, decided on 23rd February, 2007.

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

----Art. 199---Constitutional jurisdiction---Scope---Disputed factual controversy requiring determination through detailed inquiry involving recording of evidence, cannot be resolved in exercise of Constitutional jurisdiction under Art.199 of the Constitution.

The Province of East Pakistan v. Kshiti Dhar Roy and others PLD 1964 SC 636; Muhammad Younas Khan and 12 others v. Government of N.-W.F.P. through Secretary Forest and Agriculture, Peshawar and others 1993 SCMR 618 ref.

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

----Art. 199---Foreign Exchange Regulation Act (VII of 1947), Ss.23, 4 & 3---Constitutional petition---Quashing of F.I.R.---Foreign currency of different denominations of huge value was recovered from the accused who was found dealing with the sale and purchase of the same in violation of S.4 of the Foreign Exchange Regulation Act, 1947---Accused was connected with the commission of cognizable offence through incriminating evidence already collected by the prosecution---Accused was not a licence holder or authorised dealer in Foreign Exchange in terms of S.3 of the said Act and the complained action was fully covered by S.23 of the same---Stance of accused that he was a Foreign Currency Account holder and to keep such currency was not an offence, would be determined by Trial Court after recording evidence---Lawfully registered case could not be quashed on the basis of a disputed factual controversy---Constitutional petition was dismissed in limine accordingly.

Muhammad Ashraf v. Rizwan Nazir, Executive Magistrate 1st Class, Daska and another 2000 PCr.LJ 1324 and Muhammad Saleem v. Deputy Director, F.I.A./C.B.C. Multan and others 2000 MLD 357 distinguished.

Muhammad Irfan Malik for Petitioner.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 997 #

2007 P Cr. L J 997

[Lahore]

Before Tariq Shamim, J

SHAUKAT ALI----Petitioner

Versus

DISTRICT POLICE OFFICER, BUREWALA DISTRICT VEHARI and 2 others----Respondents

Writ Petition No.4305 of 2003, decided on 27th April, 2006.

Penal Code (XLV of 1860)---

----S. 489-F---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Cheques in question though had been issued by petitioner prior to insertion of S.489-F in P.P.C., but issuance of cheque by itself was not an offence as it was only after the said cheque was presented to the Bank and on its being dishonoured that would make the act as an offence of issuing the cheque dishonestly---Most important ingredient of offence under S.489-F, P.P.C. being issuance of a cheque dishonestly, would be attracted only when cheque was bounced by the Bank---Dishonesty of a wrongdoer would be materialized only at the time when cheque was bounced by the Bank and only then offence could be said to have been committed---Time of occurrence would be reckoned from the date when cheque was dishonoured by the Bank and not from the date said cheque was issued---Contention of counsel for petitioner that S.489-F, P.P.C., could not be applied with retrospective effect, was misconceived as offence in the case was constituted when cheques were presented to the Bank and were dishonoured, which was after the insertion of S.489-F, P.P.C.---Plea that during pendency of civil suit, criminal proceedings could not be initiated, was also misconceived as civil suit had been filed only for the recovery of amount in question, the same being appropriate remedy in respect thereof and with regard to the commission of offence, criminal proceedings had been initiated---Both the remedies could be availed simultaneously---Petitioner having not been able to make out case for quashing of F.I.R., petition was dismissed.

Qambar Ali and others v. The State and others 2004 YLR 2689; Munir Ahmad v. The State 2004 YLR 2748; Usman Enterprises v. Collector of Customs, Central Excise, Quetta and another 1995 CLC 1137 and Mst. Naseem Bibi v. Sub-Registrar/M.I.C., Lahore and others 2000 YLR 47 ref.

Sardar Balakh Sher Khan Khosa for Petitioner.

M.R. Khalid Await, Addl. A.-G. for Respondents.

Saghir Ahmad Bhatti for Respondent No.3.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1001 #

2007 P Cr. L J 1001

[Lahore]

Before Asif Saeed Khan Khosa, J

SAJJAD HUSSAIN----Petitioner

Versus

GOVERNMENT OF PUNJAB and 3 others----Respondents

Writ Petition No.12431 of 2006, decided on 21st December, 2006.

(a) West Pakistan Regulation and Control of Loudspeakers and Sound Amplifiers Ordinance (H of 1965)---

----S. 2---Constitution of Pakistan (1973), Art.199---Constitutional petition---Restriction of loudspeakers and amplifiers in Imam Bargahs and Masajids---Petitioner had sought a declaration that restriction contained in West Pakistan Regulation and Control of Loudspeakers and Sound Amplifiers Ordinance, 1965, would not apply to use of loudspeakers and sound amplifiers in Imam Bargahs and Masajids---Validity---Provision of S.2 of West Pakistan Regulation and Control of Loudspeakers and Sound Amplifiers Ordinance, 1965, clearly manifested the intention of Legislature that no restriction was placed upon any Mosque or any other place of worship regarding use of a loudspeaker or a sound amplifier---Only restriction placed therein was in respect of use of a loudspeaker or a sound amplifier in a manner which could offend, injure or affect others outside a Mosque or any other place of worship---Prayer made by petitioner, in circumstances would not call for issuance of any declaration by High Court as relevant Ordinance did not contemplate an absolute restriction at all.

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

--Ss. 154 & 249-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Registration of F.I.Rs.---Petitioner in his constitutional petition had prayed that F.I.Rs. registered in police station concerned be declared to have been registered in violation of constitutional freedom of religion, without lawful authority and of no legal effect---State counsel had pointed out that two F.I.Rs. had already been recommended for cancellation, whereas in third one, a challan had already been submitted before the Trial Court---No interference of High Court was warranted in matters pertaining to the F.I.Rs. already recommended for cancellation---F.I.R. in which challan had already been submitted before the Trial Court, petitioner had a remedy available to him under S.249-A, Cr.P.C., seeking his premature acquittal from the Trial Court.

----S. 2---Constitution of Pakistan (1973), Arts.20 & 199---Constitutional petition---Permission to hold Majalis---Exemption from permission---Petitioner through constitutional petition had prayed that declaration be issued to the effect that Majalis held in Imam Bargahs, were exempted from any permission to be obtained from the Authorities---Validity---Provisions of West Pakistan Regulation and Control of Loudspeakers and Sound Amplifiers Ordinance, 1965 did not contemplate seeking of or issuance of any permission for the use of loudspeaker or a sound amplifier in a religious congregation or assemblage and no permission was required under said Ordinance---Authorities only insisted that they should be informed of such use of loudspeaker and sound amplifier in advance so that the matter pertaining to security etc. be taken care of by administration---No declaration as sought for needed to be issued by High Court.

?Yousuf Kazmi for Petitioner.

Mrs. Salma Malik, Asstt. A.-G. for the Respondents with Liaqat Ali S.-I. with record.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1007 #

2007 P Cr. L J 1007

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

HUMA AMJAD----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous Nos.8830-B and 9053/B of 2006, decided on 24th November, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 498---Penal Code (XLV of 1860), Ss.302 & 34---Pre- arrest and post-arrest bail, grant of---Further inquiry---No direct evidence was available against the two accused to connect them with the commission of offence and entire case of prosecution against accused was in the form of circumstantial evidence i.e. extra judicial confession of one of accused and evidence of conspiracy by accused persons--Complainant, who was brother in law of one of accused, prior to registration of the case, had filed three civil suits on behalf of the minor children of accused and in said civil suits, complainant never took plea that deceased was murdered by his wife/accused---Said litigation had clearly shown that the relations of the parties were strained and involvement of accused in the criminal case after lapse of about five months upon the supplementary statement of the complainant, itself was sufficient to show the mala fide of the complainant party---Prima facie, said facts of the case were sufficient to open the doors of further inquiry qua the involvement of both accused entitling them concession of bail---Both accused were female and their case was also covered under first proviso to S.497(1), Cr.P.C.---Ad interim pre-arrest bail already granted to one of accused was confirmed and the other was also allowed post-arrest bail, accordingly.

Ch. Abdul Ghaffar for Petitioner.

Rafiq Javaid Butt for the Complainant.

Talha Rasheed for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1015 #

2007 P Cr. L J 1015

[Lahore]

Before Hasnat Ahmad Khan, J

TARIQ NAEEM----Petitioner\

Versus

THE STATE and others----Respondents

Criminal Miscellaneous No.96/B of 2007, decided on 20th March, 2007.

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

----S. 497---Penal Code (XLV of 1860), Ss.394/411/109---Bail, grant of---Accused was not named in the F.I.R.-Complainant, after seven days of the occurrence, had involved the accused in the case on the basis of suspicion alleging only that dacoity had taken place on his abetment---No direct evidence of abetment was available against the accused--Amount of Rs.1,50,000 was allegedly recovered from the house of father-in-law of accused---Admittedly Pakistani currency was not looted by the un-known burglars---Question as to whether the motorcycle was in fact robbed from the accused and used by some other accused in the present case or whether the same was provided by the accused to them for committing burglary, required further inquiry---Accused was behind the bars for more than 16 months and despite framing of the charge, early conclusion of trial was not in sight---Even otherwise, bail could not be denied to accused on the ground of start of trial, if his case needed further inquiry---Bail was allowed to accused in circumstances.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585; Muhammad Saleem v. The State PLD 1989 Lah. 233; Munir v. State 2002 MLD 712 and Zulfiqar Ali v. The State 1987 MLD 1608 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss.394/411/109---Bail---Further inquiry---Principles---Commencement of trial no bar in case of further inquiry---Bail cannot be denied to accused on the ground of start of trial, if his case becomes one of further inquiry.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585; Muhammad Saleem v. The State PLD 1989 Lah. 233; Munir v. State 2002 MLD 712 and Zulfiqar Ali v. The State 1987 MLD 1608 ref.

Abdul Aziz Khan Niazi for Petitioner.

Mehr Irshad Ahmad Araien for the Complainant.

Nadir Manzoor Dugal, Deputy Prosecutor-General and Khadim Hussain, S.-I. for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1020 #

2007 P Cr. L J 1020

[Lahore]

Before Syed Shabbar Raza Rizvi, J

ABDUL AZIZ----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.4020/B of 2006, decided on 13th November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302---Bail, grant of---Further inquiry---Investigating Officer had submitted that presence of accused at the scene of occurrence was not established and had further stated that brother of accused, had enmity with the complainant party and he had committed the murder, but accused had been involved in view of his relationship with real accused---No weapon had been recovered from the accused---Empties recovered from the place of occurrence, in circumstances, could not be used against the accused---One year had passed, but the trial of accused had not commenced---Expeditious trial was a right of accused which had been denied to him---Order sheet had disclosed that accused had not caused any delay in the trial---Case of accused appearing to be the case of further inquiry, he was admitted to bail.

Rana Abdul Shakoor Khan for Petitioner.

M. D. Chaudhry for the Complainant.

Ijaz Ahmad Bajwa for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1027 #

2007 P Cr. L J 1027

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD ASGHAR---Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.196/B of 2007, decided on 21st February, 2007.

(a) 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---F.I.R. was lodged after an inordinate delay of a month, in which complainant had admitted that accused had developed illicit relations with his daughter---Said assertion had, prima facie, removed the impression of forcible abduction of the alleged abductee---Marriage of accused with the abductee was supported by the copy of Nikahnama placed on record, genuineness of which was acknowledged by the alleged abductee in her statement recorded under S.164, Cr.P.C.; as well as in a suit filed by her for dissolution of marriage---Case against accused, thus, was one of further inquiry and he could not be denied bail simply because charge had already been framed by trial .Court---Accused was suffering premature sentence for the last three and a half years and not a single witness had so far been examined in the case---No satisfactory reparation could be offered to an innocent person for his in justified incarceration at any stage of the case, albeit his acquittal in the long run---Accused was allowed bail in circumstances.

Muhammad Riaz v. The State 2002 SCMR 184; Azam's case PLD 1984 SC 95; PLD 1989 SC 585; PLD 1989 Lah. 233 and 1987 MLD 1608 ref.

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

----S. 497(2)-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/11---Bail---Framing of charge was no bar for bail, when the case of accused falls within the ambit of S.497(2), Cr.P.C. he becomes entitled to bail as a matter of right and bail cannot be denied to him on the rule of propriety, whereby after start of trial bail is normally disallowed to accused.

PLD 1989 SC 585; PLD 1989 Lah. 233 and 1987 MLD 1608 rel.

----S. 497---Bail---Purpose and philosophy of law---Ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent person for his in-justified incarceration at any stage of the case, if he is acquitted in the long run.

Habib Ullah Shakir for Petitioner.

Ch. Pervaiz Akhtar Gujjar for the Complainant.

Sh. Muhammad Raheem and laved Ahmad, S.-I. for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1034 #

2007 P Cr. L J 1034

[Lahore]

Before Nazir Ahmad Siddiqui, J

SIDDIQUE----Petitioner

Versus

THE STATE----Respondent

Criminal Revision No.457 of 2005, decided on 6th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-F(i)(v) & 34---Grant of bail subject to payment of amount to complainant by way of compensation---Trial Court granted bail to accused subject to payment of Rs.19,000 to complainant by way of compensation as promised by accused during `Punchayat'---Trial Court in bail granting order had observed that accused deserved concession of bail---Nothing was in black and white on the file including the police file that accused had ever promised to pay a sum of Rs.19,000 by way of compensation to the complainant---Imposition of condition of payment of Rs.19,000 before enlarging accused on bail was not justified---Same was set aside by High Court allowing revision against order of the Trial Court---Accused was ordered to be immediately released on bail.

Syed Jaffar Bukhari for Petitioner.

Sardar Manzoor Ahmad Khan for the Complainant.

Mumtaz Hassan Awan for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1049 #

2007 P Cr. L J 1049

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD NAWAZ----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.3726/B of 2006, heard on 5th March, 2007.

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

----S. 497---Penal Code (XLV of 1860), S.302---Bail, grant of---Complainant had not seen the occurrence---F.I.R. was lodged after an inordinate delay of ten days, which was not plausibly explained---Despite the incident having taken place in the house of the accused and the deceased, none of the inmates of the house was cited as an eye-witness of the. occurrence---Eye-witnesses were residents of another village who claimed to be present at the scene of occurrence just by chance---Time of occurrence was not mentioned in the F.I.R.---Weapon of offence i.e., the iron rod was not recovered by police (luring investigation---Accused was found innocent during investigation---Police opinion could be taken into consideration for the purpose of bail, which was, prima facie, based upon sound material---Allegation of causing injuries to the deceased by brick-batting was not supported by the post-mortem report---Case against accused, thus, required further inquiry and framing of charge would not hinder the right of accused to get post-arrest bail---Accused was admitted to bail in circumstances.

Akhtar Zaman v. State 2001 YLR 2076; Muhammad Akram v. The State 2005 YLR 683; Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182; Ibrahim v. Hayat Gulp and another 1985 SCMR 382; Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 and Muhammad Saleem v. The State PLD 1989 Lah. 233 ref.

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

----S. 497---Penal Code (XLV of 1860), S.302---Bail---Police opinion, consideration of---Opinion of police is not binding upon the Courts, but for the purpose of bail the same can be taken into consideration.

Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182 and Ibrahim v. Hayat Gul and another 1985 SCMR 382 ref.

----S. 497---Penal Code (XLV of 1860), S.302---Bail, grant of--Commencement of trial---Effect---When a case of further inquiry is made out in favour of accused, framing of charge by Trial Court would not hinder his right to get post-arrest bail.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 and Muhammad Saleem v. The State PLD 1989 Lah. 233 ref.

Sh. Jamshaid Hayat for Petitioner.

Rao Atif? Nawaz with Abdul Rashid, S.-I. with record for the State.

Ijaz Ahmad Toor for the Complainant.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1064 #

2007 P Cr. L J 1064

[Lahore]

Before Muhammad Jehangir Arshad, J

TALIB HUSSAIN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.3865/B of 2006, decided on 18th January, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.489-F---Pre-arrest bail, grant of---Situation with regard to bail before arrest in the case involving S.489-F, P.P.C., appeared to have changed---Question of mala fide, usually was raised where accused in the garb of bail before arrest, wanted to avoid investigation and also wanted to avoid recovery, but in the present case there was no question of recovery of cheque in dispute as the same was already with the complainant---Just for. the purpose of sending accused to jail without any further investigation, 'bail before arrest could not be refused, when no further investigation was to be made and the challan already stood submitted with the Trial Court---Object of S.489-F, P.P.C. was not to affect recovery of amount under the cheque and for that matter, complainant had always to approach the court of competent jurisdiction---Question of dishonest issuance of cheque and its dishonest dishonouring could also not be determined as the same required evidence, which was only possible during trial---Offence under S.489-F, P.P.C., though was non-bailable, but High Court could not ignore the fact that offence also did not fall within the ambit of prohibitory clause of S.497, Cr.P.C. and in the absence of exceptional circumstances bail before arrest could even be claimed, as of right---Ad interim pre-arrest bail already granted to accused was confirmed, in circumstances.

Sikandar v. The State 2002 MLD 113 and Tariq Bashir v. The State PLD 1995 SC 34 rel.

Syed Jaffar Tayyar Bukhari for Petitioner.

Mian Ahmad Mahmood for the Complainant.

Tanvir Haider Buzdar for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1069 #

2007 P Cr. L J 1069

[Lahore]

Before Khawaja Muhammad Sharif and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD SADIQ and others----Appellants

Versus

THE STATE--Respondent

Criminal Appeal No.120, Murder Reference No.196 and Criminal Revision No.54 of 2001, heard on 19th March, 2007.

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

----S. 302(b)---Appreciation of evidence---Sentence, reduction of---Mitigating circumstances---Eye-witnesses had fully explained their presence at the spot---Occurrence having taken place in broad-daylight, no question of mistaken identity of accused could arise, who was previously known to prosecution witnesses---Fire-arm injury attributed to accused was supported by medical evidence---Occurrence did not seem to be a premeditated one, which had occurred for some immediate cause after the return of previous fiance of the elder brother of accused, under whose influence, in order to take revenge, he had fired a single shot---Accused in his statement under S.342, Cr.P.C. had stated his age as 18/19 years, but Trial Court had not considered the same and had turned down the request of accused to get his ossification test---Such were the mitigating circumstances in favour of accused---Conviction of accused was maintained but his sentence of death was converted into imprisonment for life in circumstances.

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

----S. 302(b)/34---Appreciation of evidence---Benefit of doubt---Ineffective role of firing was attributed to accused which was not supported by the facts and circumstances of the case---Case of accused was at par with that of the acquitted co-accused---No crime-empty was recovered from the place of occurrence---Possibility of false implication of accused being a real brother of the main accused, could not be ruled out---Benefit of doubt was extended to accused, and he was acquitted accordingly.

Ch. Afrasiab Khan for Appellants (in criminal appeal)

Ch. M. Tahir, Addl. Prosecutor-General for the State.

Sardar Muhammad Ishaq Khan and Sardar Tariq Masood Khan for the Complainant and Petitioner (in Criminal Revision No.54 of 2001)

Date of hearing; 19th March, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1087 #

2007 P Cr. L J 1087

[Lahore]

Before Muhammad Nawaz Bhatti, J

ALTAF HUSSAIN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.637/B of 2006, decided on 18th May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.409---Prevention of Corruption Act (II of 1947), S.5(2)---Pre-arrest bail, confirmation of---Accused was not nominated in F.I.R. and no role had been attributed to him---During the course of Departmental inquiry, accused was declared innocent which had made the case that of further inquiry---Furthermore, accused had deposited amount in question---Pre-arrest bail, already granted to accused was confirmed, in circumstances.

Syed Jafer Bokhari for Petitioner.

M. Sabir Qureshi for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1097 #

2007 P Cr. L J 1097

[Lahore]

Before M. Bilal Khan and Tariq Shamim, JJ

USMAN ALI and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeals No.853 and 854 of 2006, heard on 20th February, 2007.

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

----S. 7(e)---Appreciation of evidence---Abductee had rightly picked up all the three accused in the identification parade and had also identified them in the Court---Demand of ransom by the accused and payment of Rupees four Ins to them as such according to their instructions had been proved on record---Offence under S.7(e) of Anti-Terrorism Act, 1997, being non-compoundable, any compromise between the parties was of no consequence---Accused had not led any evidence to establish their friendship with the abductee or regarding the complicity of the abductee himself in the crime---Entire ransom amount had been recovered from accused who were arrested by the police from the house on the pointation of abductee---Abductee had no motive for false implication of accused in the case---Incriminating recoveries from the accused including the ransom amount, pistols with live cartridges, mobile phone and motorcycle of abductee, had further connected the accused with the offence---Investigating Officer in the peculiar circumstances of the case could not possibly join persons from the public in recovery proceedings, even otherwise police, witnesses were as good witnesses as other witnesses---Recoveries had corroborated the evidence furnished by the prosecution witnesses---Even if the recoveries had not been proved in a case of kidnapping or abduction for ransom, the determining factor was the object behind the crime---Conviction and sentence of accused were upheld in circumstances.

State v. Farman Hussain PLD 1991 SC 1 ref.

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

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), S.7 (e)---- Kidnapping or abduction for ransom---Determining factor---In a case of kidnapping or abduction for ransom, the determining factor is the object behind the crime.

State v. Farman Hussain PLD 1991 SC 1 ref.

Shehryar Sh. and Sher Afgan Asadi for Appellants.

A.H. Masood for the State.

Date of hearing: 20th February, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1122 #

2007 P Cr. L J 1122

[Lahore]

Before M. Bilal Khan and Tariq Shamim, JJ

MUHAMMAD AKHTAR----Appellant

Versus

THE STATE and 4 others----Respondents

I.C.A. No.104 of 1997 in Writ Petition No.22817 of 1997, heard on 6th November, 2006.

Law Reforms Ordinance (XII of 1972)---

----S. 3---Constitution of Pakistan (1973), Art.199---Penal Code (XLV of 1860), Ss.302(b) & 316---Intra-Court appeal---Maintainability---Appellant, who was convicted under S.302(b), P.P.C., was sentenced to undergo imprisonment for life as Ta'zir with further direction to pay Rs.30,000 to the legal heirs of deceased under S.544-A, Cr.P.C. as compensation---On filing appeal by appellant against his conviction and sentence, High Court held that offence committed by appellant fell under category of Qatl-i-Shibh-i-Amd punishable under S.316, P.P.C.---Conviction of accused, in circumstances was converted from S.302(b), P.P.C. to S.316, P.P.C. and appellant was sentenced to rigorous imprisonment for ten years as Ta'zir with further direction to pay Diyat as fixed by Federal Government i.e. Rs.1,89,906---Amount of Diyat, having been awarded by High Court, constitutional petition was not competent against the same as no such petition lay against High Court---Intra-Court appeal, was also not maintainable as in the constitutional petition, order of the High Court had been challenged, which was an appellate order in appeal against conviction and sentence of the appellant in a criminal trial---Intra-Court appeal, was barred under proviso to S.3(3) of Law Reforms Ordinance, 1972.

Mian Jamal Shah v. Member Election Commission Government of Pakistan and others PLD 1966 SC 1 rel.

Nazeer Ahmed Ghazi for Appellant.

Faisal Ali Qazi, A.A.-G. for the State.

Date of hearing: 6th November, 2006.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1130 #

2007 P Cr. L J 1130

[Lahore]

Before Khawaja Muhammad Sharif and Ijaz Ahmad Chaudhry, JJ

Haji ABDUL REHMAN----Appellant

Versus

KHADIM HUSSAIN and 8 others----Respondents

Criminal Appeal No.116 of 1997, heard on 19th March, 2007.

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

----S. 417---Penal Code (XLV of 1860), Ss.302/324/148/149/109---Appeal against acquittal---Belated despatch of crime-empties after the arrest of accused had made the positive report of Forensic Science Laboratory unreliable and such recovery could not be used as a corroborative piece of evidence---Five accused after having been found innocent by three Investigating Officers had been placed in column No.2 of the challan---Reasons given by Trial Court for acquittal of accused had met with each and every point of the prosecution---Statements of injured prosecution witnesses were replete with contradictions and dishonest improvements---Seven or eight persons had allegedly made firing indiscriminately from the roof of house of accused, but not a single crime-empty was, recovered from that roof, which had negated the prosecution version---All the near relatives of the accused had been roped in the case while/exaggerating the prosecution story and attributing different injuries to each of them---Medical evidence had contradicted the ocular testimony---Exit wounds had been changed into entry wounds---Fire-arms allegedly in possession of accused were changed from rifles to guns at the trial by the complainant party in order to make their version in line with medical evidence---Impugned judgment of acquittal did not suffer from any perversity, misreading or non-reading of any material evidence on record resulting into any miscarriage of justice, rather the same was based on sound and cogent reasons and did not warrant any interference---Appeal was dismissed accordingly.

1995 SCMR 1365; 2002 SCMR 1842; 2003 SCMR 68; 2004 SCMR 283; 1986 SCMR 1027; 1995 SCMR 614; PLD 1982 SC 201; 2004 SCMR 425; 2004 SCMR 215; 2004 SCMR 249 and Inayatullah Butt v. Muhammad Javed and others PLD 2003 SC 562 ref.

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

----S. 417---Appeal against acquittal---Extent and scope---Appeal against acquittal has distinctive features---Approach to deal with the appeal against acquittal is distinguishable from an appeal against conviction, because presumption of double innocence is attached in the former case---Order of acquittal can only be interfered with if, on the face of it, the same is found to be perverse, capricious, arbitrary or foolish in nature.

Inayatullah Butt v. Muhammad Javed and others PLD 2003 SC 562 ref.

Malik Rabnawaz Noon for Appellant.

Sardar M. Ishaq Khan for the private Respondents.

Abdul Rasheed Khan for the State.

Date of hearing: 19th March, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1137 #

2007 P Cr. L J 1137

[Lahore]

Before Muhammad Jehangir Arshad, J

AMJAD HUSSAIN and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1997/B of 2006, decided on 26th July, 2006.

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

----S. 498---Penal Code (XLV of 1860), Ss.324 & 452---Pre-arrest bail, confirmation of---Accused was empty handed at the relevant time and only allegation against him was one of keeping complainant in Japha, causing no injury to him---Vicarious liability of accused within the meaning of S.324, P.P.C. could not be determined at bail stage---Case of accused, in circumstances was covered by proviso to S.498, Cr.P.C. being of further inquiry---Ad interim pre-arrest bail, earlier granted to accused was confirmed, in circumstances.

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

----S. 498---Penal Code (XLV of 1860), Ss.324 & 452---Pre-arrest bail, refusal of---Case of co-accused was distinguishable; he was alleged to be equipped with fire-arm and he had allegedly caused injury on the leg of complainant, which was supported by medical evidence---Involvement of co-accused in the case for the time being could not be considered as one tainted with any mala fide---Co-accused being not entitled to concession of pre-arrest bail, his application was dismissed.

Muhammad Rehman Khokhar and Saghir Ahmad Bhatti for the Complainant.

Rao Atif Nawaz for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1139 #

2007 P Cr. L J 1139

[Lahore]

Before Fazal-e-Miran Chauhan and Sh. Javaid Sarfraz, JJ

SAJID ALI alias SAJU----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.1574 and Murder Reference No.50-T of 2006, heard on 25th January, 2007.

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

----Ss. 302 & 353---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Appreciation of evidence---Benefit of doubt---Accused was nominated in supplementary statement on the date when he was in jail--Accused was joined in the investigation by summoning him from jail---Accused remained all along in the police custody, then in judicial custody and thus, identification parade was conducted in jail---Accused, at the time of identification parade, objected that he was kept in custody by police for two months and was shown to prosecution witnesses---Nothing was on record to show as to why identification parade was conducted after 35 days---Prosecution witnesses had admitted that they had seen accused in the jail before identification parade--Both of accused had also testified; that no source of light was available at the spot; that it was a dark evening and they could not get glimpse of accused; that it was only after two months of occurrence that they nominated accused without disclosing the source of their knowledge---Mere fact that witness picked up accused in an identification parade, was not in itself sufficient to connect accused with the crime, if same was not conducted soon after arrest---No reliance could be placed upon evidence of prosecution witnesses--Sentence of death was only given solely on statement of witnesses, who identified accused after 5 months of occurrence, and that too on description given in F.I.R. and in the supplementary statement, which could not be upheld---Recovery of G.3 rifle and 100 live cartridges, beside being unnatural, it had got only corroborative value and was not sufficient in itself to bring home charge in a case of murder---Prosecution had failed to place on record, any material from the police station showing that G.3 rifle alleged to have been recovered at the pointation of accused was issued to him on the date of occurrence along with 100 cartridges---Benefit of doubt was extended to accused---Impugned judgment of the Trial Court was set aside.

Amira and 6 others v. The State 1968 PCr.LJ 1876; Lal Pasand v. The State PLD 1981 SC 142 and Muhammad Hassan and another v. The State PLD 1970 Kar. 413 rel.

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

----Art. 22---Identification parade---Object of---Whole object of identification parade was to find out whether the suspects, were the real culprits or not and if the parades were delayed for such a long period, without any plausible explanation then their object would be largely frustrated; in such a situation possibility that witness had seen the culprits in police custody or judicial lock-up, could not be ruled out---Mere fact that witness picked up the accused in identification parade, was not in itself sufficient to connect accused with the crime if parade was not conducted soon after arrest.

Abdul Karim Sheikh for Appellant.

Shan Gul, Special Prosecutor for the State.

Date of hearing; 25th January, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1144 #

2007 P Cr. L J 1144

[Lahore]

Before Fazal-e-Miran Chauhan, J

ABDUL RASHEED----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.3320/B of 2005, decided on 2nd February, 2006.

Criminal procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 380 & 411---Bail, grant of---Further inquiry---Incident was a night occurrence and nobody was identified at the time of occurrence---Complainant along with prosecution witnesses chased accused, who fired at the complainant and managed to escape---No body had sustained injury during occurrence and nothing was stolen in the case---F.I.R. showed that two goats, alleged to have been stolen by accused party, were in fact found by complainant and himself produced same before Investigating Officer---No identification parade was conducted---Subsequent involvement of accused after ten days of occurrence, had made his case that of further inquiry--Recovery of pistol and motorcycle alleged to have been made from accused, having been denied, same would be taken into consideration by the Trial Court at the time of trial---Challan had been submitted, in the Court, but no evidence had been recorded so far---Accused was admitted to bail, in circumstances.

Ch. Saghir Ahmad Bhatti for Petitioner.

Raja Khurram Sultan for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1146 #

2007 P Cr. L J 1146

[Lahore]

Before M. Bilal Khan, J

ABID LATIF----Petitioner

Versus

Rao ABDUL JABBAR KHAN and 11 others----Respondents

Criminal Revision Petition No.71 of 2007, decided on 19th February, 2007.

Criminal Procedure Code (V of 1898)---

----Ss. 200 & 203---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Dismissal of private complaint---Petitioner, by means of revision petition had challenged order whereby private complaint filed by petitioner under Ss.302, 324, 148 & 149, P.P.C. was dismissed by the Trial Court---Impugned order had been passed by the Trial Court after conscious application of judicial mind---Trial Court did not find prima facie case against three respondents and declined to summon them---Rest of the accused persons nominated in the complaint, had already been summoned in the State case and no useful purpose would have been served by summoning them all over again---Summoning them in the private complaint would have resulted in wastage of time and effort, especially when prosecution story in the complaint case and in the State case was exactly the same qua accused who had been summoned in the State case---No occasion was left for the Trial Court to have referred to post-mortem report or the Medico-legal reports as there was no attribution against said three respondents of having caused any injury to anyone---Even otherwise during preliminary inquiry the court was not required to enter into the realm of deeper appreciation of evidence available on record---High Court would not substitute its finding with that of the Trial Court---Impugned order was perfectly legal and did not call for any interference by the High Court.

Hafiz Muhammad Hanif Zafar for Petitioner.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1149 #

2007 P Cr. L J 1149

[Lahore]

Before Fazal-e-Miran Chauhan, J

ATTA MUHAMMAD----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.3750 of 2005, decided on 21st February, 2006.

Criminal Procedure Code (V of 1898)---

---S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10 & 18---Bail, grant of-Further inquiry---Only allegation against accused was that on the day of occurrence, he pushed complainant into cotton crop and removed her Shalwar in order to commit sexual intercourse against her wishes---On raising her hue and cry, witnesses arrived at the spot and she was saved from being dishonoured--Was yet to be determined whether removal of complainant's Shalwar by accused amounted to attempting to commit rape or same fell for outraging the modesty of a girl punishable under S.354, P.P.C.-Accused was behind the bars since long---Neither accused nor complainant (victim) was medically examined by the police, which made case of accused that of further inquiry---Accused, was admitted to bail, in circumstances.

Muhammad Bashir v. The State 1996 PCr.LJ 813 and Munsaf Khan v. The State NLR 1993 SD 126; Muhammad Asif alias Muhammad Ilyas v. The State 2004 YLR 378 and Tahir Abbas alias Babar Ali v. The State 2001 MLD 1559 rel.

Saghir Ahmad Bhatti for Petitioner.

Muhammad Javaid Iqbal Adham for the Complainant.

Atta Ullah Khan Tareen for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1151 #

2007 P Cr. L J 1151

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD SHARIF----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.461-J of 2003, heard on 16th March, 2007.

Penal Code (XLV of 1860)---

----S. 308---Appreciation of evidence---Case of promptly lodged F.I.R.---Both deceased were daughters of accused and complainant---Rope and clothes with which legs of both deceased were tied and clothes, which were given in the mouth of both deceased, were taken into possession from the spot---Complainant, who was wife of accused, being inmate of the house was most natural witness in the case---No reason existed of false implication of accused and there was no question of substitution---Ocular account was fully corroborated by medical evidence---Prosecution, in circumstances had been successful in proving its case against accused beyond any shadow of doubt---Conviction and sentence recorded against accused by the Trial Court was maintained in toto, in circumstances.

Tanveer Ahmad Cheema for Appellant.

Naseer-ud-Din Khan for the State.

Date of hearing: 16th March, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1154 #

2007 P Cr. L J 1154

[Lahore]

Before Nazir Ahmad Siddiqui, J

LIAQAT ALI and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.679/B of 2006, decided on 3rd April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10 & 16---Bail, grant of---Delay of four months in lodging F.I.R. was not properly explained---Accused was behind the bars for the last five months and there was no likelihood of commencement of the trial in near future as only incomplete challan had been submitted---Alleged abductee had not supported the story of F.I.R., rather she had filed a suit for jactitation of marriage against son of complainant, with whom her Nikah had been alleged---Neither said son of complainant nor witness of his alleged Nikah with alleged abductee had joined investigation---Nikah Khawan of the Nikah was also not interrogated---Detention of accused would be of no use to prosecution---Accused was admitted to bail, in circumstances.

Saghir Ahmad Bhatti for Petitioners.

Rana Muhammad Shakeel for the State.

Muhammad Amjad, Copy Clerk, Sessions Court, Vehari with trial Court record.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1156 #

2007 P Cr. L J 1156

[Lahore]

Before Muhammad Jehangir Arshad, J

IMTIAZ AHMED WARRIACH, RESIDENT OFFICER, BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN----Petitioner

Versus

JUSTICE OF PEACE/ADDITIONAL SESSIONS JUDGE, MULTAN and 3 others----Respondents

Writ Petition No.1063 of 2007, decided on 6th March, 2007.

Criminal Procedure Code (V of 1898)---

----S. 22-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of order---Petitioner had sought quashing of order passed by Justice of Peace under S.22-A, Cr.P.C. on an application moved by respondent directing him to approach S.H.O. who would record petitioner's statement and further proceed in accordance with law---Grievance of petitioner was that said direction/order of Justice of Peace in fact amounted to directing him for the registration of case, whereas in the light of comments/report submitted by S.H.O., neither cognizable offence was made out nor such direction could have been issued by Justice of Peace without any material on record---Validity---Impugned direction/order of Justice of Peace had only directed respondent to approach S.H.O. who would record his statement and proceed in accordance with law---Such direction, neither impliedly nor expressly could be taken as a direction for registration of case in all circumstances---Petition being not maintainable was disposed of as such.

2003 MLD 714 rel.

Malik Muhammad Rafique Rajwana for Petitioner.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1157 #

2007 P Cr. L J 1157

[Lahore]

Before Nazir Ahmad Siddiqui, J

MUHAMMAD IQBAL----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.182/B of 2006, decided on 10th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11---Penal Code (XLV of 1860), Ss.324, 379, 148 & 149---Bail, grant of---Accused was not named in F.I.R.---Alleged abductee, after having been recovered, recorded her statement under S.161, Cr.P.C., in which she had not levelled any allegation of Zina or abduction against the accused---Main accused who had allegedly caused fire-arm injuries to prosecution witness as well as committed Zina with alleged abductee had already been enlarged on bail---State counsel had simply stated that trial be concluded expeditiously---Accused was admitted to bail, in circumstances.

Ch. Saghir Ahmad Bhatti for Petitioner.

Syed Muhammad Yousaf for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1159 #

2007 P Cr. L J 1159

[Lahore]

Before Sardar Muhammad Aslam, J

SABIR HUSSAIN alias PEHLWAN----Petitions

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1416/B of 2007, decided on 8th March, 2007.

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

----S. 497---Penal Code (XLV of 1860), S.302---Bail, grant of---Deceased was not Masoom-ud-Dam and he kept on his pursuit of illicit liaison in spite of admonition by the complainant himself as well as the parents of the accused---Accused a young man with boiling blood had seen his real sister with her paramour at midnight in his house and his provocation must have been at its extreme depriving him of self-control and loss of mental faculty---Prima facie offence of accused might fall under S.302(c), P.P.C.---Commencement of trial was no bar' for grant of bail to accused, if a case for bail was made out---Human life was very sacred, but at the same time prevalent social set up, traditions and customs prevailing in the society could not be ignored where men would sacrifice their lives to safeguard the honour of their womenfolk, which was not considered a big sacrifice in any manner---No religion allowed widespread immorality to destroy the fabric of a family life---Accused was admitted to bail in circumstances.

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

----S. 497---Penal Code (XLV of 1860), S.302---Bail, grant of---Principle---Commencement of trial no bar in granting bail---Grant of bail cannot be denied on the ground of commencement of trial, if a case for bail is made out.

Munir Ahmad Khan Zai for Petitioner.

Ahmad Rauf, D.P.G. assisted by Azfar Ali Malik for the State.

Muhammad Mansoor Ahmad for the Complainant.

Aftab Ahmad, A.S.-I. with record.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1161 #

2007 P Cr. L J 1161

[Lahore]

Before Sh. Javaid Sarfraz, J

ZAHOOR AHMAD alias BHAWAL SHER and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.107/B of 2006, decided on 15th February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.354, 506, 148 & 149---Pre-arrest bail, confirmation of---Co-accused was stated to be armed, but he did not cause any injury to complainant/victim---Accused were declared innocent during three investigations and it was only in the last investigation that accused had been found guilty---Offences against accused did not fall within the prohibitory clause of S.497, Cr.P.C.---Grounds available to accused at the time of post-arrest bail, could also be taken into consideration at bail stage---Post-arrest bail had already been granted to co-accused and role of accused was the same---Accused, in circumstances were entitled to confirmation of bail before arrest---Bail already granted was confirmed, in circumstances.

Muhammad Akbar Samoo and another v. The State 2000 PCr.LJ 1473; Abdul Hai Siddiqui and 2 others v. The State 1993 PCr.LJ 446; Abdul Raheem and others v. The State 2003 YLR 545; Mst. Zubaida Parveen v. State 2004 MLD 1812 and Gulsher v. The State 2000 PCr.LJ 1482 rel.

Saghir Ahmad Bhatti for Petitioners.

Aman Ullah for the Complainant.

Muhammad Sabir Qureshi for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1163 #

2007 P Cr. L J 1163

[Lahore]

Before Khawaja Muhammad Sharif, J

ZAFAR IQBAL----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.1159 and Criminal Revision No.746 of 2003, heard on 7th February, 2007.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Eye-witnesses had no previous enmity with the accused and they had fully supported the prosecution version---Fatal injury was attributed to accused---Ocular testimony was corroborated by medical evidence---Accused was a proclaimed offender who remained fugitive from law for one year and five months---Deceased in his dying declaration had specifically attributed his injury to accused---Trial Court had sentenced the accused to imprisonment for life as the injury was caused on the left thigh i.e. non-vital part of the body of the deceased and he had not repeated the fire shot, which did not call for any interference by High Court---Appeal was dismissed in circumstances.

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

Syed Mazhar Ali Akbar Naqvi for Appellant.

Ch. M. Anwar Bhinder for Respondent.

Naseeruddin Khan Nayyer, A.P.-G. for the State.

Date of hearing: 7th February, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1168 #

2007 P Cr. L J 1168

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD SHAHID----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.270/M of 2007, heard on 7th March, 2007.

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

----Ss. 561-A & 516-A---Custody of vehicle on "Superdari", grant of---vehicle in question, was neither stolen property nor, was the same involved in any criminal case---Excise Department had transferred the said vehicle in the name of the petitioner who was properly maintaining the necessary documents---Petitioner for the time being appeared to be a bona fide purchaser of the vehicle, of which at present there was no other claimant---Allegation that the chassis number of the vehicle had been cut and welded, needed further probe---Retention of the vehicle in question by police for an indefinite period would mean complete decay, deterioration and damage thereto, which could not be allowed under any provision of law---Vehicle was directed to be handed over to petitioner on "Superdari" in circumstances.

Syed Hassam Qadir Shah for Petitioner.

Ch. Iftikhar Ahmed, Asstt. District/Public Prosecutor for the State.

Date of hearing: 7th March, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1170 #

2007 P Cr. L J 1170

[Lahore]

Before Muhammad Jehangir Arshad, J

ALAM SHER----Petitioner

Versus

ADDITIONAL INSPECTOR-GENERAL OF POLICE (INVESTIGATION), PUNJAB, LAHORE and 5 others----Respondents

Writ Petition No.1825 of 2006, decided on 27th February, 2007.

Police Order (22 of 2002)---

----Art. 18(6)---Constitution of Pakistan (1973), Art.199---Penal Code (XLV of 1860), Ss.302 & 324---Constitutional petition---Quashing of order---Petitioner had sought quashing of order passed by D.S.P./Range Crimes changing investigation of case under Ss.302 & 324, P.P.C. and handing over same to other Inspectors---Once in the light of order passed by Additional I.-G. Police, the investigation was taken up by the Incharge Regional Investigation Branch, D.S.P., could not further direct change of investigation to other Inspectors, without obtaining appropriate orders from Inspector General of Police (Provincial Police Officer) within the meaning of proviso Second to Art.18(6) of Police Order, 2002---Impugned order passed by D.S.P. entrusting the investigation of the case to other Inspectors, could not be considered as valid and lawful order---Impugned order was set aside, in circumstances.

Khizar Hayat and others v. I.-G. Punjab and others PLD 2005 Lah. 470 rel.

M. Asif Ismail for Petitioner.

Mehmood Ashraf Khan for Respondent No.6.

Mubashir Latif Gill, A.A.-G. and Mazhar Jamil, A.S.-I. with record for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1204 #

2007 P Cr. L J 1204

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

GHULAM MUHAMMAD alias GAMMA and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.343 and Murder Reference No.197 of 2002, heard on 31st January, 2007.

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

----S. 302(b)/34---Appreciation of evidence---Both complainant and other prosecution witness who were brothers of deceased, were not chance witnesses, but they had plausibly explained their presence at the time of occurrence---Complainant was subjected to very lengthy cross-examination, but he had fully established that it was not unusual circumstance for the deceased on the day of occurrence to join his brother for going back to their houses after completion of their jobs---Presence of other prosecution witness at Bus-stand at the relevant time was also not an unusual circumstance, as his house was situated at a distance of 1 Km and it was natural for a villager to go to the Bus-stand to purchase the articles of daily use---Not only the F.I.R. was lodged promptly, but the post-mortem examination was also conducted on the same clay within an hour of registration of case which had supported the presence of prosecution witnesses at the time of occurrence---Both eye-witnesses though were related to the deceased, but had no personal enmity or ill-will against accused---Both said witnesses had corroborated each other on almost all the material points of the case---During lengthy cross-examination intrinsic value of the evidence of the prosecution witnesses could not be shaken---Statements of both eye-witnesses were fully supported by the medical evidence to the extent of accused---Motive of occurrence was also proved---Recoveries of pistol and motorcycle, could not be used against accused as pistol was never sent to the Forensic Science Laboratory to ascertain whether it was in working order or not---No public witness was associated during recovery proceedings and no evidence was on record as to who was the owner of said motorcycle---No reliance thus, could be placed on statements of both defence witnesses, which were brought on record after more than a month of the occurrence, especially when their statements were also inconsistent with each other---Prosecution, in circumstances had successfully proved its case beyond doubt against one of accused persons---Appeal to the extent of said accused was dismissed---Sentence of death awarded to him was confirmed and murder reference was answered in the affirmative.

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

----S. 302(b)/34---Appreciation of evidence---Injury attributed to co-accused was simple in nature and could not contribute to death of victim---No motive was attributed to co-accused---Two other accused, who were assigned the role of ineffective firing, had been acquitted by the Trial Court---Appeal to the extent of said co-accused was allowed following the principle of safe administration of justice---Judgment passed by the Trial Court to the extent of said co-accused, was set aside and he was acquitted of all the charges and was released from the Jail.

Rai Bashir Ahmad for Appellants.

Asghar Ali Gull for the Complainant.

Ch. Muhammad Hussain Chachar, Additional Prosecutor-General for the State.

Date of hearing: 31st January, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1221 #

2007 P Cr. L J 1221

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD SHAFIQUE -Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.614 of 2004, heard on 10th April, 2007.

Penal Code (XLV of 1860)---

----S. 161---Appreciation of evidence---Complainant appeared to have moved a vague application on the basis of annoyance with some Government employee, taking contradictory stand in the F.I.R.---Complainant even did not mention in the F.I.R. the name or other details of the accused and any settlement between him and the accused---Affidavit exonerating the accused from the commission of the offence was also sworn by the complainant when the accused had moved a bail application in the Court---Such a complainant could not be relied upon as a sole witness to prove the case against the accused---Non-hearing of the conversation between the accused and the complainant and non-seeing the passing of money between them by the raiding Magistrate was fatal to the prosecution version in such facts and circumstances of the case---Naib Qasid who had accompanied the complainant and made signal to the Magistrate and the Investigating Officer on the basis of which the accused was caught red-handed, was not produced in Court and had been given up as unnecessary witness---Accused was acquitted on benefit of doubt in circumstances.

Ch. Bashir Hussain Khalid for Appellant.

Saeed Ashraf Waraich, Addl. P.G. for the State.

Date of hearing: 10th April, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1231 #

2007 P Cr. L J 1231

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Mst. SAJIDA BIBI----Appellant

Versus

THE STATE----Respondent

Criminal Appeals Nos.51, 308, 309 and 461 of 2002, heard on 9th April, 2007.

Penal Code (XLV of 1860)---

----Ss. 302(b), 460 & 34---Appreciation of evidence---Occurrence had taken place in the night at 11.00 p .m. in the house of deceased and case was reported promptly by wife of deceased against two unknown accused, who committed murder with dacoity---During investigation, case, however took a turn and complainant/wife of deceased was made an accused alleging to have had hatched conspiracy with others for committing murder of her husband who used to live in U.S.A. and in his absence she allegedly had developed illicit relations with one of accused---None of 15 prosecution witnesses produced by the prosecution, had seen main occurrence of murder of deceased and dacoity committed in the house of deceased---One of main prosecution witnesses was father of deceased and other was real brother of deceased---Statements of these two could not be relied upon as it was explained by them that statements of all prosecution witnesses had been recorded by C.I.A. police after four months of the incident---Said two witnesses were also interested witnesses as due to dispute over property they had got registered criminal cases against wife of deceased who herself was complainant, but she was involved in the case by said witnesses---Both said witnesses who alleged illicit relations of wife of deceased/complainant with one of the accused, had failed to give any instance when they had seen wife of deceased and said accused while committing adultery nor they had told about the source of their information---Such allegation was based only on suspicion---Possibility of making such allegation by prosecution witnesses in order to grab the property of deceased by involving accused/wife of deceased in the murder case of her deceased husband, could not be ruled out---Statements of said prosecution witnesses could not be held sufficient to prove the motive---Prosecution had failed to bring on record any source through which accused involved in the case had been traced out, while no identification parade had been conducted---Prosecution had failed to produce any witness who had seen any of accused while committing the crime in question---Nothing had been recovered from accused during investigation---Place from where recovery of Chhuri allegedly was made, was not exclusively owned and possessed by accused but was accessible to everyone---Accused was not be expected to have preserved alleged weapons of offence stained with blood for a period of more than four months---Recovery evidence was useless and could in no way connect accused with alleged crime---Medical evidence had only disclosed about nature of injuries, the weapon used and the cause of death, but it could not lead to accused involved in causing said injuries---Occurrence was a case of no evidence and prosecution had failed to bring on record any sufficient evidence to connect accused with alleged offence beyond any shadow of doubt---Trial Court had committed material irregularity while recording conviction and sentence against accused---Impugned conviction and sentence recorded against all accused by the Trial Court, were set aside and accused were acquitted honourably.

Muhammad Ilyas and 5 others v. The State PLD 1967 SC 443 and Abdul Rehman and others v. The State 1983 SCMR 958 rel.

Sardar Shahbaz Khan Khosa for Appellants (in Criminal Appeals Nos.51 and 308 of 2002).

M. Sardar Shaheen Pirzada for Appellants (in Criminal Appeal No.309 of 2002).

Gohar Razzaq Awan for the Complainant.

Saeed Ashraf Waraich, Addl. Prosecutor-General for the State.

Date of hearing: 9th April, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1249 #

2007 P Cr. L J 1249

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

IJAZ AHMAD----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.836 with Murder Reference No.443 and Criminal Revision No.928, of 2002, heard on 7th March, 2007.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---F.I.R. in the case was got registered with promptitude which had eliminated the possibility of concocting false story as such F.I.R. could be used as a corroborative piece of evidence---Complainant was real brother of deceased and other prosecution witness was stand to be friend of deceased---Incident had taken place at the shop of deceased---Mere relationship of complainant with deceased was not sufficient to term him as an interested witness as he had no previous enmity or grudge to falsely implicate accused in the case---Both prosecution witnesses were independent witnesses having no reason to substitute accused by letting off real culprit---Both witnesses though were chance witnesses, but it was not always necessary that chance witness could not be relied upon and each case had to be decided on its own facts and circumstances---Both said eye-witnesses were present at the spot and had witnessed the incident---Both said witnesses had made consistent statements while describing 'the minute details of the incident regarding place of incident, time of incident and manner in which incident had taken place---Accused was previously known to prosecution witnesses and there was, no chance of his misidentification in the daylight occurrence---Occurrence in circumstances, could not go un-witnessed---Merely for the reason that doctor during the post-mortem had only found Bunyan on the body of deceased was not sufficient to hold that occurrence had taken place in different facts and circumstances---Ocular account furnished by both the eye-witnesses was trustworthy, which alone was sufficient to connect accused with the commission of crime even without being corroborated by any independent piece of evidence---Motive set out by the prosecution could not be proved beyond any shadow of doubt, but mere non-proving or non-existence of motive was not sufficient to exonerate accused, whose participation in the occurrence stood proved through ocular account---Prosecution had failed to prove on record through sufficient evidence the recovery of weapon of offence from accused, which was of no consequence---Medical evidence was fully in line with ocular account---Accused had failed to prove that occurrence had taken place in some other circumstances---Defence plea, in circumstances was not sufficient to exonerate him and same being an afterthought story, had already been disbelieved by the Trial Court---Prosecution having succeeded in proving case against accused beyond any shadow of doubt, conviction of accused under S.302(b), P.P.C. recorded against him by the Trial Court, was maintained---Accused had acted in a brutal manner while causing a large number of injuries on the vital parts of the deceased, which had shown that his intention was only to cause the death of deceased---Trial Court, in circumstances was quite justified in awarding death penalty to accused, which was maintained with compensation.

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

Syed Zahid Hussain Bokhari for Appellant.

S.M. Masud for the Complainant and Petitioner (in Criminal Revision No.928 of 2002).

Naeem Tariq Sanghera, D.P.G. for the State.

Date of hearing: 7th March, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1268 #

2007 P Cr. L J 1268

[Lahore]

Before Khawaja Muhammad Sharif, J

SHAHBAZ----Appellant

Versus

THE STATE----Respondent

Criminal Appeals Nos.1464 and 1149, 1463 and Criminal Revision No.848 of 2004, heard on 11th April, 2007.

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

----Ss. 302(b)/149, 324/149 & 148---Appreciation of evidence---Benefit of doubt---Two main injured independent eye-witnesses were not produced by the prosecution---Ocular testimony was furnished by closely related witnesses who were inimical towards the accused---F.I.R. was recorded at the spot and not at the police station which showed concoctions, consultations and deliberations on the part of prosecution---"Kassi" with which earth was being removed was neither produced before the police nor during the trial, which had damaged the prosecution case---Occurrence having taken place at night time, no source of light was either mentioned in the F.I.R. or produced during the trial, which also had gone against the prosecution---Main accused who had caused fatal fire-arm injury to the deceased was still absconder---No crime-empty of .30 bore having been recovered from the spot, recovery of crime weapon from the accused was of no avail to prosecution---Injured eye-witnesses might not necessarily tell the whole truth---Accused being the first cousin of the main accused, possibility of his false implication in the case could not be ruled out---Accused was extended benefit of doubt and acquitted in circumstances.

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

----S. 337-A(i)/149, 337-L(2)/149 & 148---Appreciation of evidence---Accused had allegedly caused Sota injuries on the person of a prosecution witness along with the acquitted co-accused---Injured witness had suffered only two blunt weapon injuries and it was not certain as to who had caused those injuries---Sotas recovered from accused were not stained with blood---Appeal against acquittal of the said co-accused had been dismissed by High Court---Role of accused was not distinguishable from that of the acquitted co-accused---Accused were acquitted in circumstances.

Ch. Muhammad Bashir for Appellant (in Criminal Appeal No.1464 of 2004).

Sh. Najamul Hassan and Tanveer Azam Cheema for Appellants (in Criminal Appeal No.1149 of 2004).

Naseeruddin Khan Nayyar, Addl. Prosecutor-General for the State.

M.A. Zafar for the Complainant.

Date of hearing: 11th April, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1274 #

2007 P Cr. L J 1274

[Lahore]

Before Hasnat Ahmad Khan, J

NAZAR HUSSAIN SHAH and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4117-B of 2006, decided on 11th April, 2007.

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

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Accused had not physically taken part in the murder of the deceased and they were only accused of hatching of conspiracy of his murder---Statements of witnesses regarding conspiracy were recorded after the registration of the case who were, inimical towards the accused and were not independent witnesses---Story of hatching of conspiracy was not found correct in investigation and the accused were found innocent by police, which had made them entitled to bail as a matter of right---Complainant, prima facie, had thrown the net much wide to involve all the accused closely related to each other---Question as to whether accused had committed the offence of conspiracy .required further inquiry---Accused were also of advanced age---Bail was allowed to accused in circumstances.

Syed Aman Ullah Shah v. The State and another PLD 1996 SC 241; Riaz Hussain v. The State 2004-YLR 3067; Allama Syed Sajid Naqvi v. The State PLD 2004 Lah. 549; Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182; Ibrahim v. Hayat Gull 1985 SCMR 382; Dr. Muhammad Aslam v. The State 1983 SCMR 2288; Abdul Jabbar and another v. The State 1977 SCMR 50; Khanu and others v. The State 1980 PCr.LJ 316 and Fayaz Ghani and 2 others v. The State 1983 PCr.LJ 781 ref.

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

----S. 494---Penal Code (XLV of 1860), S.302/34/109---Bail in cases of conspiracy---Normally bail is granted in cases based upon the allegation of conspiracy.

Syed Aman Ullah Shah v. The State and another PLD 1996 SC 241; Riaz Hussain v. The State 2004 YLR 3067 and Allama Syed Sajid Naqvi v. The State PLD 2004 Lah. 549 ref.

---S. 497---Penal Code (XLV of 1860), S.302/34---Bail---Police opinion---Ipse dixit of police is not binding on the Courts, but for the purpose of bail the same can be considered by the Courts.

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

----S. 497-Penal Code (XLV of 1860), S.302/34---Bail---Police opinion---Effect---If the accused is declared innocent by the police, then he becomes entitled to bail as a matter of right.

Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182; Ibrahim v. Hayat Gull 1985 SCMR 382 and Dr. Muhammad Aslam v. The State 1983 SCMR 2288 ref.

Sardar Mehboob for Petitioners.

Javed Hashmi for the Complainant.

Nadir Manzoor Duggal, Deputy Prosecutor General and Masood Ahmad, A.S.-I.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1278 #

2007 P Cr. L J 1278

[Lahore]

Before Khawaja Muhammad Sharif, J

BABAR ZAMAN and another----Appellants

Versus

THE STATE and another----Respondents

Criminal Appeal No.2050 of 2004, heard on 11th April, 2007.

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

----S. 311---Appreciation of evidence---Accused was real son of the deceased---Brother of deceased having no animus against accused had got the case registered against him---Mother and sister of the deceased had fully supported the prosecution case---Ocular testimony was corroborated by medical evidence---Pistol was recovered from the accused--Conviction and sentence of accused were maintained in circumstances.

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

----S. 311---Appreciation of evidence---Benefit of doubt---Real brother of the deceased had not named the accused in the F.I.R. lodged by him, rather he was shown as an eye-witness of the occurrence therein---Mother of the deceased in her statement recorded by the police under sections 161, Cr.P.C. also did not mention the name of accused, but she had made him an accused in the private complaint filed by her---No recovery was effected from the accused---Benefit of doubt was extended to the accused and he was acquitted accordingly.

----S. 311---Tazir after waiver or compounding of right of Qisas in Qatli-Amd---Partial compromise---Effect---No conviction under section 311, P.P.C. can be awarded in a case of Tazir on the ground of partial compromise.

Muhammad Jahangir Wahla for Appellants.

Naseer-ud-Din Khan Nayyar, A.P.G. for the State.

Date of hearing: 11th April, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1285 #

2007 P Cr. L J 1285

[Lahore]

Before Muhammad Jehangir Arshad, J

MUDASSIR HANEEF----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.292 of 2005 and Criminal Miscellaneous No.1 of 2006, decided on 22nd February, 2007.

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

----S. 302---Juvenile Justice System Ordinance (XXII of 2000), Ss.7 & 10---Trial Court's judgment illegal, case remanded---Accused was declared Juvenile by trial court and his trial was also directed under the Juvenile Justice System Ordinance, 2000---Trial Court except showing itself as "Juvenile Court during the entire proceedings, had committed no illegality or irregularity while holding and concluding the trial---Illegality committed by the trial Court was patent from the record and the same could not be ignored on the mere ground that the accused either had given his consent or did not raise any objection before trial Court, because mere consent could not confer jurisdiction which was otherwise not available and question of jurisdiction could be raised at any stage---Impugned judgment was consequently set aside and the case was remanded to trial Court for re-writing judgment as Court under Juvenile Justice System Ordinance, 2000---Accused, however, was at liberty to produce any other evidence if he so wanted and trial Court was directed to conclude the trial and decide the case after hearing the parties within the specified period---Since the trial of accused had not been legally concluded so far, he was released on bail by extending the benefit of section 10 of the Juvenile Justice System Ordinance, 2000.

Muhammad Hayat V. The State 2005 YLR 595; Multan Electric Power Company Ltd. v. Muhammad Ashiq and another PLD 2006 SC 328; Muhammad Ramzan and others v. Member (Revenue)/CSC 1997 SCMR 1635 and Amanullah and others v. The State PLD 2004 Quetta 105 ref.

(b) Jurisdiction---

----Giving consent or non-raising of any objection by party would not confer jurisdiction on the Court which otherwise it does not have---Question of jurisdiction can be raised at any stage.

Multan Electric Power Company Ltd. v. Muhammad Ashiq and another PLD 2006 SC 328; Muhammad Ramzan and others v. Member (Revenue)/CSC 1997 SCMR 1635 and Amanullah and others v. The State PLD 2004 Quetta 105 ref.

Sardar Zafar Ahmed Lund for Appellant.

Muhammad Rafiq for the State.

Malik Muhammad Saleem for the Complainant.

Date of hearing: 22nd February, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1292 #

2007 P Cr. L J 1292

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD ASIF alias KALA----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.3822/B of 2006, decided on 28th March, 2007.

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

----S. 497---Offence of Zina, (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)---Bail, grant of---None of the previous bail applications of the accused having been dismissed on merits, present bail application was maintainable for decision on merits---F.I.R. was lodged after an inordinate delay of eight days which was not properly explained---Victim who was a married lady had been medically examined with a further delay of two days---Medical report did not show any mark of violence on the body of the victim---Report of Chemical Examiner was negative---Case of accused, in circumstances, required further inquiry making him entitled to bail as a matter of right and commencement of trial consequently would not stop him from getting concession of bail---Bail was allowed to accused accordingly.

Muhammad Ismail v. Muhammad Rafique PLD 1989 SC 585; Muhammad Saleem v. The State PLD 1989 Lah. 233; Zulfiqar Ali v. The State 1987 MLD 1608; Amir v. The State PLD 1972 SC 277; Muhammad Riaz v. The State 1998 PCr.LJ 320; Raja Muhammad Akram Khan v. Mazhar Iqbal and '2 others 2004 PCr.LJ 935; Ali Bahadur v. The State KLR 2000 Criminal Cases 222; Musa v. The State 1983 PCr.LJ 16; Hasil and others v. The State 1986 .PCr.LJ 720(1); Muhammad Siddique v. The State 1985 PCr.LJ 658; Pervez Akhtar v. The State 1984 PCr.LJ 2483; Aslam Khan v. Qaiser Khan and 2 others 1999 PCr.LJ 582; Abdul Majeed v. The State 2001 YLR 540; Muhammad Riaz v. The State 2002 SCMR 184 and Rasheed v. The State 1983 PCr.LJ 2420 ref.

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

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10(3)---Bail---Case of further inquiry---Principle---Accused in a case of further inquiry becomes entitled to bail as a matter of right and not as a grace and bail cannot be refused to him on the basis of the rule of propriety, which requires that after the start of trial normally the bail should be refused.

Muhammad Ismail v. Muhammad Rafique -PLD 1989 SC 585; Muhammad Saleem v. The State. PLD 1989 Lah. 233; Zulfiqar Ali v. The State 1987 MLD 1608 ref.

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)---Bail---Benefit of doubt---Extension of---Principle---For the purposes of bail law is not to be stretched in favour of prosecution and if any doubt arises its benefit must go to the accused.

Amir v. The State PLD 1972 SC 277 and Aslam Khan v. Qaiser Khan and 2 others 1999 PCr.LJ 582 ref.

Malik Mumtaz Akhtar for Petitioner.

Abdul Aziz Khan Niazi for the Complainant.

Rao Atif Nawaz and Ghulam Ali, A.S.-I. for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1299 #

2007 P Cr. L J 1299

[Lahore]

Before Mian Hamid Farooq and Iqbal Hameedur Rahman, JJ

ABDUL HAQ and others----Appellants

Versus

ADDITIONAL SESSIONS JUDGE and others----Respondents

Intra-Court Appeal No.77 of 2007, decided on 17th April, 2007.

Illegal Dispossession Act (XI of 2005)---

----Preamble---Complaint under the Illegal Dispossession Act, 2005 cannot be entertained where the matter of possession of the relevant property is being regulated by a civil or revenue court---Principles.

Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah. 231 fol.

Mian Muhammad Shahid Riaz for Appellants.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1312 #

2007 P Cr. L J 1312

[Lahore]

Before Mian Hamid Farooq and Iqbal Hameedur Rahman, JJ

MANZOOR AHMAD----Appellant

Versus

D.I.-G. and others----Respondents

Intra-Court Appeal No.21 of 2005, decided on 23rd April, 2007.

Criminal Procedure Code (V of 1898)---

----S.22-A---Constitution of Pakistan (1973), Art.199---Applicant had alleged that he had apprehension that respondents had abetted offence and theft of his Electric Motor and theft had been committed with their connivance---Except for the apprehension, no prima facie cogent evidence or clue regarding the involvement of respondents had been given in the complaint nor in the subsequent petition under S.22-A, Cr.P.C. and nor in the constitutional petition---Mere apprehension in the mind of applicant would not make a person liable for any cognizable offence---Impugned order, could not lie interfered with in circumstances.

Sardar Tariq Sher Khan for Appellant.

Respondents: ex parts.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1314 #

2007 P Cr. L J 1314

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD ASIF and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.455/B of 2007, decided on 16th April, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.337-A(i)/337-L(2)/380/148/149---Bail, grant of---Accused had been hauled up on the basis of speculation and guesswork of the locals---Allegation in the F.I.R. that the accused belonged to a notorious gang of thieves and dacoits was not borne out from the record---No case against the accused was recorded in the past---Accused, prima facie, had been apprehended on account of surmises and conjectures pure and simple---No incriminating recovery had been effected from the accused---No formal identification parade was conducted in the case---Accused could not be retained in custody on mere fancies and hypotheses of complainant party---Case of accused was pre-eminently one of further inquiry within the meaning of S.497(2), Cr.P.C.---Accused were admitted to bail in circumstances.

Ch. Muhammad Siddique Virk for Petitioners.

Muhammad Mazhar Sher Awan, Additional Prosecutor-General for the State with Muhammad Khan, S.-I., Police Station Kotwali District Jhang with record.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1316 #

2007 P Cr. L J 1316

[Lahore]

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

ZULFIQAR and 5 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.1953 and C.S.R. No.26/T of 2004, heard on 4th April, 2007.

Penal Code (XLV of 1860)---

----Ss. 302(b), 353, 224, 225, 324, 337-A(i), 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Appreciation of evidence---Benefit of doubt---F.I.R., on which the occurrence was based was neither produced nor taken into possession during investigation, nor the same was placed on record before the Trial Court---Police contingent, according to motive, had conducted raid for the arrest of accused, without warrant of their arrest---Ocular testimony being in clear conflict with medical evidence, prosecution story, was not believable---Defence version put by accused in their statements' under S.342, Cr.P.C. seemed to be more plausible---Injuries allegedly caused by accused on the person of the constable were fabricated in order to make him an eye-witness of the occurrence---No recovery was effected from the accused---Complainant admittedly did not know the accused prior to the occurrence, and mention of their names in the written complaint had proved that the F.I.R. was recorded after due deliberation and consultation---Accused were granted benefit of doubt and acquitted in circumstances.

Sher Zaheer Khan and Bashir Abbass Khan for Appellants.

Naseer-ud-Din Nayyar, Addl. P.G. and Ch. Zafar Ahmad Gondal for the State.

Date of hearing: 4th April, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1324 #

2007 P Cr. L J 1324

[Lahore]

Before Muhammad Khalid Alvi and Sh. Hakim Ali, JJ

MUHAMMAD YOUNAS alias BAGGA----Appellant

Versus

THE STATE and another----Respondents

Criminal Appeal No.23-ATA of 2005/BWP, heard on 1st February, 2007.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7-A---Appreciation of evidence---F.I.R. had been registered on the basis of a prompt report made by the deceased himself in an injured condition, in which two persons other than the present accused were nominated as the real intruders into the house, one of whom was shown as the actual offender who had thrown acid on the body of the victim and had caused acid burns---Said F.I.R. could not be considered as a pre-consulted or premeditated F.I.R.---Wife and father of the victim who were shown as eye-witnesses of the occurrence by the victim in his report, had not supported the presence and involvement of the above nominated accused, thus, either the informant was a liar and tyrant who in spite of sufferance of burns injuries had nominated the abovementioned accused merely on the basis of suspicion or the witnesses were concealing the truth---Investigation in the case was not done on proper lines and deviation from straight line to other side had been made with preplanning---No sound reason was available which could have instigated the present accused to commit such a heinous offence of throwing acid upon his brother-in-law, with whom the life of his sister was tied---Witnesses of extra-judicial confession due to their relationship and intimacy with the informant and enmity with the family of accused were not believable, who even otherwise had differed materially with each other while giving the details of extra-judicial confession---Independent witness of said confession had been given up by the prosecution, which was not supported by any strong corroborative evidence---Bucket used for throwing acid on the deceased was recovered from a pond situated on a thoroughfare, which had no signs of acid---No supplementary statement of the victim was available on record against the accused---Accused was acquitted in circumstances.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7-A---Appreciation of evidence---Extra-judicial confession---Principles---Weakest piece of evidence like extra-judicial confession has to be supported through a strong corroborative evidence, otherwise the same cannot be believed and acted upon for recording conviction and awarding death sentence or punishment of life imprisonment.

Muhammad Shahid Khan for Appellant.

Ch. Haq Nawaz, Public Prosecutor for the State.

Mumtaz Hussain Bazmi for Informant.

Date of hearing: 1st February, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1332 #

2007 P Cr. L J 1332

[Lahore]

Before M. Bilal Khan, J

Ch. JAVAID RIAZ----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.447/B of 2007, decided on 27th March, 2007.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/148/149/109---Bail, refusal of---Accused had been playing fast and loose with the process of law and appeared before the Sessions Court after acquittal of his co-accused---Being a fugitive from law accused had lost some of his normal rights available to him under procedural and substantive law and his noticeable abscondence had disentitled him to concession of bail despite the fact that his co-accused had been acquitted by Trial Court---Evidence recorded in absence of accused could not be used against him and his case would be decided on evidence recorded in his presence---Even otherwise, post-arrest bail allowed to accused by Sessions Court had been cancelled by High Court on allegations brought against him and that order still held the field---Bail was refused to accused in circumstances.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/148/149/109---Bail---Abscondence of accused---Effect---Fugitive from law loses some of his normal rights available to him under procedural and substantive law and noticeable abscondence disentitles him to concession of bail notwithstanding the fact that his co-accused had earned acquittal.

----Evidence recorded in absence of accused not to be used against him---Evidence recorded in absence of accused cannot be used against him and fate of such an accused is to be decided on evidence recorded in his presence.

Aamir Masood for Petitioner.

Azam Nazeer Tarar for the Complainant.

Muhammad Mazhar Sher Awan, Addl. Prosecutor-General Punjab for the State with Shahid Altaf, A.S.-I.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1335 #

2007 P Cr. L J 1335

[Lahore]

Before Sh. Hakim Ali, J

MUHAMMAD MUSHTAQ----Petitioner

Versus

THE STATE and 3 others----Respondents

Criminal Revisions No.164 and 173 of 2006, decided on 10th January, 2007.

Penal Code (XLV of 1860)---

--Ss. 364-A & 302/34---Criminal Procedure Code (V of 1898), S.439---Accused were challaned in a case registered under Ss.364-A & 302/34, P.P.C. for allegedly having killed 5/6 years old daughter of the complainant after subjecting her to Zina-bil-Jabr---Additional Sessions Judge during trial on the application of complainant reached the conclusion that element of terrorism was involved in the case and he sent the file to Sessions Judge for onward transmission to Anti-Terrorism Court, but Sessions Judge returned the same with some observations to Additional Sessions Judge for proceeding in accordance with' law---Additional Sessions Judge after holding the case to be of a terrorist nature and cognizable by Anti-Terrorism Court could not review, recall or set aside his own order---Even Sessions Judge could not remit the case in such an event to Additional Sessions Judge through the impugned order, who had already expressed opinion of having become functus officio---Case being one of enforcement of Hudood, Federal Shariat Court, no doubt, had got exclusive jurisdiction to call for and examine the record, but same being a case of terrorist nature for which Anti-Terrorism Court had got exclusive jurisdiction, High Court had jurisdiction to entertain the criminal revision petition---Order passed by Additional Sessions Judge deciding the nature of the case as triable by Anti-Terrorism Court, had not been challenged in High Court, rather the aforesaid order of the Sessions Judge had been challenged in High Court, which was an administrative order and could competently be challenged in High Court through a writ petition---High Court, thus, also had got jurisdiction to look into the matter, as the case could not be allowed to be proceeded against without 'jurisdiction by the Additional Sessions Judge---Complainant petitioner did not need to be directed to file Criminal Revision before Federal Shariat Court, as the matter related to the transfer of the case from the Court of Additional Sessions Judge to the Anti-Terrorism Court---Additional Sessions Judge was consequently directed to transmit the file of the case to the Anti-Terrorism Court for trial in accordance with law---Revision petition was allowed accordingly.

Farooq Ahmad v. Federation of Pakistan through Secretary Law and Parliamentary Affairs Government of Pakistan NLR 2005 Crl. 640 ref.

Tallat Mehmood Kakezai for Petitioner.

Mumtaz Hussain for the Respondents.

Ch. Shafi Muhammad Tariq, A.A.-G.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1340 #

2007 P Cr. L J 1340

[Lahore]

Before M. Bilal Khan, J

INAYAT ULLAH and 3 others----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1935/B of 2007, decided on 16th April, 2007.

Criminal Procedure Code (V of 1898)---

---S. 497(2)---Penal Code (XLV of 1860), Ss.302/148/149---Bail, grant of---No vital role was attributed to any of the accused who had simply accompanied the co-accused at the time of occurrence---Vicarious liability of accused needed further probe within the meaning of subsection (2) of S.497, Cr.P.C.---"Dandy and fire-arms had been recovered from the accused and they were no more required by the police for investigation---Accused were admitted to bail in circumstances.

Talaat Farooq Shaikh for Petitioners.

Muhammad Mazhar Sher Awan, Addl. Prosecutor-General Punjab and Abdul Majeed S.-I. Police Station Saddar Mianwali with record for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1342 #

2007 P Cr. L J 1342

[Lahore]

Before Iqbal Hameed-ur-Rahman, J

MUHAMMAD MUSA----Petitioner

Versus

THE STATE and 5 others----Respondents

Writ Petition No.828 of 2007, heard on 20th March, 2007.

(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.---Physical appearance of the alleged abductee who was a full grown up lady and had certainly attained puberty, had belied her age of 13/14 years as stated in the F.I.R. and according to Islamic Law she could enter into a valid contract of marriage---Nikahnama admitted by the accused as well as by the abductee and the statement made by her, had belied the story narrated in the F.I.R.---Accused had proved to have lawfully married the daughter of the complainant---Law did not permit a stranger to challenge the validity of a Nikahnama when contents of the same were admitted by the husband and his wife---Nikah of an adult girl was not invalid for want of permission of Wali and marriage was also not invalid on account of the alleged absence of the consent of Wali---Impugned F.I.R. was quashed in circumstances and the constitutional petition was accepted accordingly.

Mst. Hajra Khatoon and another v. Station House Officer, Police Station Fateh Jang, District Attock and 2 others PLD 2005 Lah. 316; Hafiz Abdul Waheed v. Mrs. Asma Jehangir and another PLD 2004 SC 219; Mirza Allah Ditta alias Mirza Javed Akhtar v. Mst. Amna Bibi and another 2004 YLR 239; Mushtaq Ahmad v. Mirza Muhammad Amin and another PLD 1962 (W.P.) Kar. 442; Abdul Razak v. Muhammad Muller PLD 1956 Kar. 454; Dr. Ghulam Mustafa Solangi and 5 others v. The State 2005 PCr.LJ 1638 and Muhammad Imtiaz and another v. The State PLD 1981 FSC 308 ref.

(b) Islamic Law---

----Marriage---Validity---Muslim female of sound mind who has attained puberty can enter into a valid contract of marriage.

Mst. Hajra Khatoon and another v. Station House Officer, Police Station Fateh Jang, District Attock and 2 others PLD 2005 Lah. 316 ref.

----Marriage---Nikahnama---Validity---Law does not permit a stranger to challenge the validity of a Nikahnama, when its contents are admitted by the husband and his wife.

Dr. Ghulam Mustafa Solangi and 5 others v. The State 2005 PCr.LJ 1638 ref.

(d) Islamic Law---

----Marriage---Validity---Consent of Wali not essential---Nikah of an adult of Muslim girl is not invalid for want of permission of Wali and marriage is not invalid on account of the absence of the consent of Wali.

Hafiz Abdul Waheed v. Mrs. Asma Jehangir and another PLD 2004 SC 219 and Muhammad Imtiaz and another v. The State PLD 1981 FSC 308 rel.

Syed Shahbaz Ali Rizvi for Petitioner.

Tahir Mehmood and Rana Muhammad Nazir Saeed for the Complainant.

Muhammad Iqbal Inspector/S.H.O. and Wali Muhammad, Sial, A.S.-I. in person.

Mst. Farhana Azam along with Kausar Parveen No.375/C.

Date of hearing: 20th March, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1347 #

2007 P Cr. L J 1347

[Lahore]

Before Muhammad Jehangir Arshad, J

ABDUL HAQ and 6 others----Petitioners

Versus

ADDITIONAL SESSIONS JUDGE, LODHRAN and 2 others----Respondents

Writ Petition No.1207 of 2007, decided on 15th March, 2007.

(a) Illegal Dispossession Act (XI of 2005)---

----S. 3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Petitioners' complaint under the Illegal Dispossession Act, 2005, dismissed by Sessions Court---Validity---Previous litigation between the parties was of no help to the petitioners as for decision of the complaint under the Illegal Dispossession Act, 2005, only the contents of the complaint were to be gone into---Illegal Dispossession Act, 2005, applied to dispossession from immovable property only by property grabbers, Qabza Group or Land Mafia---Complaint filed by petitioners did not contain even a remote reference showing the . respondent either as property grabbers or member of Qabza Group or Land Mafia---Petitioners admittedly had purchased share of joint Khata and, thus, without seeking partition of the same from competent forum, they 'could not maintain their complaint---Complaint filed by the petitioners was neither maintainable, nor the impugned order dismissing the said complaint could be declared as without lawful authority---Constitutional petition was dismissed in limine accordingly.

Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah. 231 rel.

(b) Illegal Dispossession Act (XI of 2005) ---

----S. 3---Prevention of illegal possession of property, etc.---Scope--Illegal Dispossession Act, 2005, is applicable to dispossession from immovable property only by property grabbers, Qabza. Group or land mafia---Sessions Court can entertain a complaint under the Illegal Dispossession Act, 2005, only if some material shows involvement of the person complained against in some previous activity connected with illegal dispossession from immovable property or the complaint demonstrates an organized or calculated effort by some persons operating individually or in groups to grab by force or deceipt property to which they have no lawful, ostensible or justifiable claim---In the case of an individual it must be the manner of execution of his design which may expose him as a property grabber.

Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah. 231 ref.

----S. 3---Prevention of illegal possession of property, etc.---Illegal Dispossession Act, 2005 is not applicable where property is regulated by a Court---Complaint under the Illegal Dispossession Act, 2005, is not maintainable where possession of the relevant property is being regulated by a Civil or Revenue Court.

Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah. 231 ref.

Mian Abbas Ahmad for Petitioners.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1351 #

2007 P Cr. L J 1351

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

JAMIL AHMAD----Petitioner

Versus

THE STATE----Respondent

Writ Petition No.12993 of 2006, decided on 30th March, 2007.

Criminal Procedure Code (V of 1898)---

----S. 176(2)---Constitution of Pakistan (1973), Art.199---Penal Code (XLV of 1860), Ss.302/365/337-J---Constitutional petition---Orders directing exhumation of dead body of deceased---Validity---Magistrate on an application of accused for exhumation of dead body of the deceased in order to ascertain the cause of his death, conducted an inquiry and after hearing the complainant allowed the dead body to be exhumed---Since the order was passed only to ascertain the cause of death, the same was just and proper---Revision petition brought by the complainant against the said order was dismissed by Sessions Court after appraisal of entire material available on record---Impugned orders, as such, did not suffer from any illegality or infirmity and called for no interference---Constitutional petition was dismissed accordingly.

Muhammad Ramzan and others v. The State and another 1987 SCMR 272 ref.

Naveed Inayat Malik for Petitioner.

Ch. Muhammad Azeem Jathol for Respondent.

Rana Iqbal Hassan, DPG with Mushtaq Ahmed, S.-I. along with, record.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1352 #

2007 P Cr. L J 1352

[Lahore]

Before Muhammad Sayeed Akhtar and Muhammad Jehangir Arshad, JJ

AHMAD YAR----Appellant

Versus

STATION HOUSE OFFICER, SHAH KOT, DISTRICT SAHIWAL and 8 others----Respondents

Intra-Court Appeal No.41 of 2007 in Writ Petition No.480 of 2007, decided on 27th February, 2007.

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

----Art. 199---Penal Code (XLV of 1860), S.302---Criminal Procedure Code (V of 1898), S.154---Law Reforms Ordinance (XII of 1972), S.3---Registration of second F.I.R.---Intra-Court Appeal---Single Judge of High Court while accepting constitutional petition of the respondent had directed the. S.H.O. to register second F.I.R. on the statement of the respondent and proceed in accordance with law---Said order did not suffer from any jurisdictional defect---No embargo existed with regard to registration of second F.I.R. on different version given by the aggrieved party of the same occurrence---Second F.I.R., however, would not contain the facts for the mere amplification of the first version---Case of the respondent was that the appellant in order to grab the property of the deceased had murdered her in connivance with six respondents whereas according to first F.I.R. lodged by appellant, the deceased was murdered by the said six respondents---Such fact could only be determined during investigation and not through the Intra-Court Appeal---Appellant would have a chance to take all his pleas before the Investigating Officer, who might get the appellant discharged or submit a report for cancellation of case, if he would be found innocent during investigation---Question of delay in approaching the Court after ten days by the respondents might also be considered by the Investigating Officer or Trial Court---IntraCourt Appeal in terms of proviso to S.3(1) of the Law reforms Ordinance, 1972, was not maintainable against the order of Single Judge of High Court passed in constitutional jurisdiction under Art.199 of the Constitution---Intra-Court appeal was dismissed in limine in circumstances.

Mst. Anwar Begum v. Station House Officer, Police Station Kalri West Karachi and 12 others PLD 2005 SC 297; Mrs. Ghanwa Bhutto and another v. Government of Sindh and another PLD 1997 Kar. 119; Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 and Nawazul Haq Chowhan v. The State 2003 SCMR 1597 ref.

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

----S. 154---Second F.I.R., registration of---Scope---There is no embargo against registration of second F.I.R. in respect of different version given by the aggrieved party of the same occurrence---Only impediment is that second F.I.R. should not contain the facts for the mere amplification of the first version.

Mst. Anwar Begum v. Station House Officer, Police Station Kalri West Karachi and 12 others PLD 2005 SC 297 and Mrs. Ghanwa Bhutto and another v. Government of Sindh and another PLD 1997 Kar. 119 ref.

----S. 3---Constitution of Pakistan (1973), Art.199---Penal Code (XLV of 1860), S.302---Intra-Court Appeal---Maintainability---Intra-Court Appeal against the order of Single Judge of High Court quashing the F.I.R., passed in constitutional jurisdiction under Art.199 of the Constitution, is not maintainable.

Nawazul Haq Chowhan v. The State 2003 SCMR 1597 ref.

Malik Javed Akhtar Vains for Appellant.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1356 #

2007 P Cr. L J 1356

[Lahore]

Before Khawaja Muhammad Sharif, J

ASIF IQBAL----Petitioner

Versus

Maulana MUHAMMAD AKRAM and 14 others----Respondents

Criminal Revision No.315 of 2007, decided on 1st June, 2007.

Criminal Procedure Code (V of 1898)---

----S. 200---Examination of complainant---Sessions Judge was duty bound to record statement of the complainant as preliminary evidence.

Abdul Wahab Khan v. Muhammad Nawaz and others 2000 SCMR 1904 ref.

Dr. A. Basit for Petitioner.

Ch. Muhammad Hand Khatana, Addl. A.-G. and Syed Imdad Hussain Hamdani for Respondents.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1361 #

2007 P Cr. L J 1361

[Lahore]

Before Tariq Shamim, J

NAZIRAN BIBI----Petitioner

Versus

SHAHBAZ AHMED alias FAUJU and another----Respondents

Criminal Miscellaneous No.10416/BC of 2006, decided on 15th May, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10-Petition for cancellation of bail---F.I.R. in the case was lodged on the direction of Ex-officio Justice of Peace on application filed by petitioner under Ss.22-A, 22-B, Cr.P.C. in which accused who had committed the offence of Zina-bil-Jabr with her was named as "Fayyaz alias Fauju", whereas name of accused/respondent was conspicuously missing---Report submitted by the police had revealed that "Fayyaz alias Fauju" had committed Zina with petitioner with whom she had entered into compromise---Possibility of respondent/accused being falsely involved in the case by petitioner, could not be ruled out in circumstances---Report of Chemical Examiner was returned in the negative and the Medico-legal Report did not reveal any serious injury on the person of petitioner except a minor bruise--- Delay of 20 days in lodging of F.I.R. had not been explained, which had created doubt in prosecution case---Challan in the case had been submitted and after framing of the charge, prosecution evidence had been summoned---Case of petitioner was one, of further inquiry calling for further probe into guilt of respondent/accused---Basis on which bail was granted to accused by the Trial Court appeared to be valid and not without substance---Conclusion framed by the Trial Court in allowing bail to accused, was neither 'whimsical nor arbitrary or fanciful---Bail once validly granted by a court of competent jurisdiction could be cancelled only under exceptional circumstances and petitioner had not been able to show any such circumstances calling for interference by the High Court in well-reasoned order of the Trial Court-Even otherwise provisions of S.497(5), Cr.P.C. were not punitive in nature and it was not incumbent upon the court to cancel bail in each and every case---Impugned order passed by the Trial Court could not be interfered With in circumstances.

Shaukat Nawaz Gondal for Petitioner.

Hafiz Khalil Ahmad for Respondent No. 1.

Ch. Amjad Hussain, Deputy Prosecutor-General for the State with Riasat Ali A.S.-I.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1364 #

2007 P Cr. L J 1364

[Karachi]

Before Sarmad Jalal Osmany and Ali Sain Dino Metlo, JJ

IMRAN ALI----Petitioner

Versus

PROVINCE OF SINDH through Secretary, Home Department, Sindh Secretariat, Karachi and 3 others----Respondents

C.P. No. 1415-D of 2006, decided on 21st February, 2007.

(a) Transfer of Offenders Ordinance (XXXVII of 2002)---

----Ss. 3 & 9(4)---Control of Narcotic Substances Act (XXV of 1997), S.9(b)(c)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Conviction in foreign country---Petitioner/accused who was apprehended in foreign country, was convicted and was sentenced to undergo life imprisonment-Petitioner was deported from said foreign country to Pakistan under agreement executed between Pakistan and said foreign country and on transfer petitioner was to undergo remaining portion of his sentence---Sentence given to citizen of Pakistan in foreign jurisdiction in terms of S.9(4) of Transfer of Offenders Ordinance, 2002, should be compatible to the laws of Pakistan and consequently a court of competent jurisdiction in Pakistan could adopt the latter's sentence---Sentence, however, should correspond as far as practicable to the sentence imposed by foreign court---In the present case, gross quantity of heroin recovered from petitioner was 2028.4 grams, whereas net quantity was 867.21 grams---Section 9(b) of Control of Narcotic Substances Act, 1997, provided that if quantity of heroin was up to one Kg., then maximum sentence could be imposed seven years' R.I.---Petitioner having remained continuously behind the bars for about 10 years, he had undergone maximum sentence which could be imposed upon him in Pakistan---Petitioner would also be extended benefit of S.382-B, Cr.P.C.---Sentence undergone by petitioner with effect from date of his arrest which came to 10 years, was sufficient in the facts and circumstances of the case---Petitioner was directed to be released.

Abdul Ghani v. The State 2001 PCr.LJ 2027; Zaheer Ahmed v. The State 2002 YLR 443; The State v. Abdul Qahir PLD 2002 SC 321; Akhtar Hussain v. The State 2005 PCr.LJ 1958; Khawar v. The State 2003 PCr.LJ 811 and Ghulam Murtaza v. The State PLD 1998 SC 152 ref.

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

----S.382-B---Period of detention to be considered while awarding sentence of imprisonment---Benefit under S.382-B, Cr.P.C. was to be given to accused unless for reasons recorded in writing by the court it was to be refused

Abdul Razzaque along with Faisal Siddiqui for Petitioner.

Ashfaque Hussain Rizvi, Special Prosecutor for Anti-Narcotic Force.

Muhammad Sarwar Khan, Addl. A.-G. for Government of Sindh.

Ms. Sofia Saeed Shah, Standing Counsel for Federation of Pakistan.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1367 #

2007 P Cr. L J 1367

[Lahore]

Before Hasnat Ahmad Khan, J

Mst. HALIMAN BIBI----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.45/CB of 2007, decided on 16th May, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.377---Petition for cancellation of bail---Counsel for petitioner/complainant had failed to show that while granting bail any illegality was committed by the Trial Court---Impugned order had not been found to be illegal or perverse---Originally complainant had alleged that offence of sodomy was committed by accused with her daughter/victim, but later on she changed her stance and alleged that offence of "Zina-bil-Jabr" was committed with her daughter---Medico-legal report showed that while examining alleged victim barring the contusion mark about 0.3 into 1 cm on her right breast no other injury or mark of any injury or violence was observed by the doctor on the body of the victim---Co-accused who had allegedly played an instrumental role in the occurrence was exonerated by complainant herself making her credibility hazy---Investigating Officer had said that both the eye-witnesses named in the F.I.R. had stated that they had not witnessed the occurrence; it could safely be held that while holding the case as one of further inquiry, Trial Court did not commit any illegality---Even otherwise it was an established law that once bail was granted by any court of competent jurisdiction same could not be cancelled unless it was shown that bail granting order was perverse and totally illegal---Mere fact that there could be another opinion of the matter than the one formed by Lower Court, on basis of tentative assessment of the evidence, would not be a sufficient ground to cancel the bail, if in the light of the facts of the case, it could be found to have qualified the test of calling further inquiry into the guilt or innocence of accused in the terms of S.497(2), Cr.P.C.---No case for cancellation of bail having been made out, petition for cancellation of bail was dismissed.

Sooba Khan v. Muhammad Ajmal and 2 others 2006 SCMR 66 r el.

Rana Muhammad Nazir Saeed for Petitioner.

2007 P Cr. L J 1451

[Lahore]

Before Sardar Muhammad Aslam, J

MUHAMMAD ANWAR alias MUNAWAR----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.5164/B of 2006, decided on 27th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/18---Bail, grant of---F.I.R. had been delayed for 18 days without any explanation---Accused had been declared innocent in investigation conducted by D.S.P.---Whether the offence would fall under S.18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 or under S.354, P.P.C. would be determined with certainty at trial---Accused was admitted to bail in circumstances.

Zafar Iqbal Chouhan for Petitioner.

Muhammad Aslam Gondal along with Ahmad Sher, A.S.-I. for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1453 #

2007 P Cr. L J 1453

[Lahore]

Before Hasnat Ahmad Khan, J

M. ASHRAF----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.99/B of 2007, decided on 22nd March, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Bail, refusal of---Co-accused was granted bail on the ground of her being a woman and at the time of decision of her bail application, trial had not started, and unlike accused she was not found to be a desperado---List of twenty-seven criminal cases against accused showing his involvement in said cases was produced before the Trial Court---Even before High Court a list of eleven criminal cases, showing chequered history of involvement of accused had been produced---Such list had further depicted that at least in one case accused was convicted---Such criminal history had clearly shown that accused was a desperate and a hardened criminal---Case against accused thus fell within, the prohibitory clause of S.497, Cr.P.C.---Bail application was dismissed---Trial Court, however, was directed to conclude the Trial as early as possible.

Fida Hussain v. The State and others 2002 SCMR 46; Muhammad Tufail and another v. State 2003 YLR 3195; Muhammad Umar v. The State and another PLD 2004 SC 477; Aftab Hussain v. The State 2004 SCMR 1467; Ghulam Rasool v. State 1985 SCMR 1946 and Allah Ditta v. The State 1990 SCMR 307 rel.

Sheikh Rehan Iftikhar for Petitioner.

Sh, Imtiaz Ahmad for the State.

Ch. Abdul Manan for the Complainant.

Muhammad Imran Ahlmad to the Court of Syed Pervaiz Ali Shah, Additional Sessions Judge, Vehari and Khalid Rasool, A.S.-I.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1455 #

2007 P Cr. L J 1455

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD ARSHAD and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.3166/B of 2006, decided on 30th April, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.16 & 10(3)---Bail, grant of--- Delay of eleven days in lodging F.I.R., had not satisfactorily been explained---Question as to whether Nikah of accused persons with alleged abductees took place with their free consent, could not be determined during criminal proceedings and only forum competent for that purpose was Family Court---Was not possible for accused to establish their Nikahs while remaining behind the bars---Mere fact that both girls had denied their Nikahs with accused after their restoration to the complainant, would not mean that Nikah claimed by accused never took place, unless findings to that effect were given by the Family Court after recording of evidence of both the parties-Accused were behind the bars since 10-3-2006 and by keeping them there, they could not be expected to file suit in the Family Court and obtain verdict to that effect---Accused having succeeded in making out a case for grant of post-arrest bail, they were admitted to bail.

Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95 ref.

Rana Muhammad Shakil.

Mian Muhammad Khalid Shaukat for the Complainant.

Mumtaz Hassan Awan for the State and Idrees, S.-I. and Shaukat Hussain, A.S.-I. with record.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1458 #

2007 P Cr. L J 1458

[Lahore]

Before Khawaja Muhammad Sharif, J

SAMIULLAH----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.10540/B of 2006, decided on 12th February, 2007.

Police Order (22 of 2002)---

----Arts. 110 & 111---Non-production of under-trial prisoners before the Trial Courts---Consequent delay in the conclusion of trials, had attained alarming proportion and was one of the major causes towards the delayed disposal of criminal cases by Courts of law which was against that golden principle in the criminal administration of justice i.e. "Justice delayed is justice denied"---Early trial was the right of an accused---Delay in conclusion of trials in criminal cases was shattering confidence of the people in the system of administration of justice---Registrar of High Court was directed to circulate amongst all District and Sessions Judges to hold monthly meetings of Criminal Justice Co-ordination Committees and record their minutes as provided in sub-Arts.(2) of Art.111 of the Police Order, 2002 and in the meetings, they would specifically see as to why under-trial prisoners were not being produced before the, Trial Courts regularly and who were the delinquents---Circular would also include a direction to the Trial Courts that they would not pass an order on the warrants, unless the under-trial prisoners/accused were produced along with the warrants before them and in future, if any such type of case was brought to their notice, the matter would be brought to the notice of D.P.O. concerned, I.-G. Prisons and Provincial Home Secretary for strict action against delinquents because until and unless the matter was dealt, with iron hands, fruitful results could not be achieved.

Muhammad Sharif Khokhar for Petitioner.

Naseeruddin Khan Nayyar, Additional Prosecutor-General for the State.

Ch. Muhammad Hanif Khatana, Addl. A.-G., Punjab (on Court's call).

Khusru Pervaiz Khan, Home Secretary, Punjab, Sarfraz Ahmad Mufti, Inspector-General of Prisons, Punjab, Raja Abdul Qayyum, Law Officer and Farooq Ahmad Lodhi, Superintendent District Jail Sheikhupura in person.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1463 #

2007 P Cr. L J 1463

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD IQBAL and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.53 of 2002, heard on 30th April, 2007.

Penal Code (XLV of 1860)---

----Ss. 302, 337-L(ii), 337-A(ii), 148 & 149---Appreciation of evidence---Prosecution case against main accused was supported by evidence of injured prosecution witness---Plea of accused for clean acquittal, could not he accepted for the reasons; firstly that he had failed to appear as his own witness; secondly he, had failed to produce any of his womenfolk who according to the defence plea had caused injuries to the deceased as well as complainant, in their self-defence---Prayer of clean acquittal of said accused, was turned down, however, he could be convicted and sentenced under S.302(c), P.P.C. for the reason; firstly that no long standing enmity existed between the parties; secondly parties were related inter se and occurrence ,had taken place due to antipathy which occurred due to the fact that vegetable crop of complainant party was damaged by the flock of goats of accused party; thirdly accused caused only one injury to deceased---Accused though allegedly was armed with-hatchet, but he had opted to use same from its wrong side and avoided to repeat the injury and blow of hatchet was not forceful--For determining the question of intention of accused to murder any person, nature of weapon of offence, number of blows and force used behind such weapon by the accused was always kept into consideration---Accused though could be burdened with the knowledge ,that blow was likely to cause death, but certainly there was no intention on his part to murder deceased---Appeal of said accused was accepted to the extent that conviction awarded to him under S.302(b), P.P.C. was converted to S.302(c), P.P.C. and his sentence of 14 years' R.I. would meet the ends of justices; occurrence was a sudden flare up, sentence awarded to him under S.148, P.P.C. was set aside---Conviction and sentence awarded to him under Ss.337-A(ii) & 337-L(ii)., P.P.C. were also -set aside and he would be entitled to get benefit of S.382-B, Cr.P.C.---Co-accused had already served out their sentence of imprisonment and their sentence to the extent of `Arsh' amount was suspended by the High Court---Role attributed, to one of co-accused having not been supported by medical evidence, he was acquitted of all the charges---Occurrence being the result of a sudden flare up, conviction and sentence awarded to other two co-accused under S.148, P.P.C. "were also set aside---Case being of individuality, they could not be convicted under S.337-A(ii), P.P.C.--- With said modification in the conviction and sentences awarded to accused persons, appeal was disposed of accordingly.

Mian Abbas Ahmad for Appellants.

Rao Aatif Nawaz for the State.

Date of hearing: 30th April, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1469 #

2007 P Cr. L J 1469

[Lahore]

Before Mian Hamid Farooq and Iqbal Hameed-ur-Rehman, JJ

MANZOOR AHMAD LOND----Petitioner

Versus

DEPUTY INSPECTOR-GENERAL OF POLICE, D.G. KHAN RANGE, D.G. KHAN and 4 others----Respondents

I.C.A. No.21 of 2005 in Writ Petition No.244 of 2005, decided on 23rd April, 2007.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 154---Constitution of Pakistan (1973), Art.199--Constitutional petition---First Information Report, registration of---Theft of electric motor by unknown persons7-Complainant seeking registration of F.I.R. against named persons whom he apprehended to have connived with unknown thieves---Validity---Mere apprehension in complainant's mind would not make a person liable for any cognizable offence-- Application for registration of case was dismissed in circumstances.

Sardar Tariq Sher Khan for Petitioner.

Nemo for respondents despite service as such they are proceeded ex parte.

2007 P Cr. L J 1479

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD RAFIQUE----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.9651/B of 2006, decided on 13th December, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498--Customs Act (IV of 1969), Ss.21, 26, 32, 32-A, 39 & 156(1),--Pre-arrest bail, grant of---Challan in the case had already been submitted before the Trial Court after investigation, where the matter was ripe for its trial and accused was no more required for any further investigation---Handing over the custody of the accused to Investigating Agency, in circumstances, would not serve any purpose---Interim pre-arrest bail already granted to accused stood confirmed, in circumstances.

Saeed Ullah Khan for Petitioner.

Muhammad Nawaz Cheema for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1481 #

2007 P Cr. L J 1481

[Lahore]

Before Fazal-e-Miran Chauhan, J

MUHAMMAD AHMAD SHEIKH----Petitioner

Versus

MUHAMMAD ASLAM and another----Respondents

Criminal Miscellaneous No.9282/B/C of 2006, decided on 21st May, 2007.

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

----S.497(5)---Penal Code (XLV of 1860), Ss.302, 324, 109, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Petition for, cancellation of bail---Only contention raised by counsel for petitioner for cancellation of bail was that respondent/accused was granted bail by the Trial Court without giving notice to the State---Order granting bail had revealed that Special Prosecutor had entered appearance, on behalf of the State who was served with a notice and he argued case on behalf of the State---Contention raised by counsel for petitioner, thus, had no force---State was properly heard before bail was granted to respondent/ accused---Counsel for petitioner had failed to point out any reason fop cancellation of bail---No allegation that accused had misused the concession of bail granted to him or some fresh facts or material had been collected by the police during investigation, which could tend to establish or point out guilt of accused---Provisions of S.497(5), Cr.P.C. being not at all punitive in nature strong and exceptional grounds were needed for cancellation of bail---Once, a bail was granted by a court of competent jurisdiction it must be shown satisfactorily for its cancellation that the discretion exercised by the said court was either perverse or violative of fundamental principles qua the grant of bail matters or the same would not have been exercised at all in the circumstances of the case---Petition for cancellation of bail was dismissed, in circumstances.

Muhammad Shafi v. Muhammad Mir Khan and 3 others 2004 PCr.LJ 968; Inayat Ullah v. The State and another 1997 PCr.LJ 1366; Syed Amanullah Shah v. The State PLD 1996 SC 241 and Muzaffar Idbal y. Muhammad Imran Aziz and others 2004 SCMR 231 ref.

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

----S. 497(5)---Bail, cancellation of---Principles---Section 497(5), Cr.P.C. did not command the court to cancel . the bail even when the offence was punishable with death or imprisonment for life and even if the grant of bail was prohibited under S.497(1), Cr.P.C.---Principles for grant and cancellation of bail were altogether different---Strong and exceptional grounds were needed for cancellation of bail---Bail could be cancelled only, when the bail granting order was patently illegal, erroneous, factually incorrect; when some fresh facts or material had been collected by the police during investigation which could tend to establish or point out guilt of accused; when accused had misused his liberty by indulging in similar 'criminal activities; when accused had interfered with course of investigation; when accused had attempted to tamper with prosecution evidence; when accused had threatened witnesses or indulged in similar activities which would hamper smooth investigation and there was likelihood of his fleeing from the country and accused had made himself scarce by going underground or, becoming unavailable to Investigating agency.

Muhammad Iftikhar Shah for Petitioner.

Hammad Raza for Respondent No. 1.

Mrs. Farzana Khan, Assistant Prosecutor-General for the State.

Abdul Khaliq, S.-I. with record.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1484 #

2007 P Cr. L J 1484

[Lahore]

Before Iqbal Hameed-ur-Rahman, J

DHONO MAI----Petitioner

Versus

SESSIONS JUDGE and another----Respondents

Writ Petition No.216 of 2007, decided on 26th April, 2007.

Criminal Procedure Code (V of 1898)---

----S. 154---Constitution of Pakistan (1973), Art.199---Constitutional petition---Recording of second F.I.R.---Feasibility-Admittedly when the police party conducted raid for the arrest of the son of the petitioner, he along with others had started firing on the police party, whereupon police also had made firing on the said proclaimed offender-F.I.R. regarding the said occurrence already stood recorded---Cross-version in the case was sufficient and could serve the purpose---Petitioner had also an alternate remedy of filing a private complaint---Constitutional petition was dismissed in Circumstances.

1993 PCr.LJ 1992; 2007 PCr.LJ 147; Khizar Hayat and others v. Inspector-General of Police PLD 2005 Lah. 470 ref.

Syed Muhammad Hussain Shah Qadri for Petitioner.

Sardar Zafar Ahmad Lond and Malik Muhammad Qasim Khan, A.A.-G. for Respondents.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1487 #

2007 P Cr. L J 1487

[Lahore]

Before Nazir Ahmad Siddiqui, J

MUHAMMAD AMIR HUSSAIN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.865/B of 2005, decided on 13th April, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.365, 363, 343, 148 & 149---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Bail, grant of---Further' inquiry---Delay of 8 days was caused in lodging F.I.R.---Accused was behind the bars since his arrest and there was no likelihood of commencement of the trial in near future as only incomplete challan had so far been submitted---Accused was allegedly armed with .12 bore gun at the time of alleged occurrence, but same was not recovered from him and even there was no allegation that he had used same---One of alleged abductees had not levelled any allegation of Zina against accused, but she had levelled allegation of Zina against co-accused who was still absconding---Complainant in his affidavit placed on record had declared accused innocent and he had no objection if accused was enlarged on bail---No motive was attributed to accused---Case of accused falling within the ambit of further inquiry, he was admitted to bail, in circumstances.

Rana A.D. Kamran for Petitioner.

Mehmood-ul-Hassan Qureshi for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1488 #

2007 P Cr. L J 1488

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD RAFIQ and 4 others----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.2493/B of 2007, decided on 17th April, 2007.

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

----S. 498---Penal Code (XLV of 1860), Ss.337-H(ii)/379/427/506/148/149---Pre-arrest bail, refusal of---Accused who belonged to a Qabza Group were nominated in the F.I.R. and a specific role had been attributed to them---Accused stood involved in a large number of criminal cases registered with various police stations and appeared to be accustomed to committing criminal acts---Complainant or the police were ,not shown to have any malice against the accused---Concession of bail in. appropriate cases could be refused even if the offence did not fall under the prohibitory clause of S.497(1), Cr.P.C.---Investigating Officer had found the accused to be guilty---Tractors belonging to the complainant severely damaged by the accused had been taken into possession-Accused .by acting in a very oppressive and overbearing manner had tried' to intimidate, overawe and browbeat the complainant party, so that nobody could dare do anything against their wishes within the sphere of their influence---Pre-arrest bail Was disallowed to accused in circumstances.

Imtiaz Ahmad and another v. The. State PLD. 1997 SC 545; Afzaal Ahmad v. The State 2003 SCMR 573 and Tahir Mehmood and others v. The State 2007 PCr.LJ 112 ref.

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

----Ss. 497/498---Bail-Offence not falling within the prohibitory clause of S.497, Cr.P.C.---Mere fact that an offence does not fall within the prohibitory clause of S.497(1), Cr.P.C. does not mean that it has become a bailable offence---Concession of bail, in appropriate cases can be refused in such a situation.

Imtiaz Ahmad and another v. The State PLD 1997 SC 545 and Afzaal Ahmad v. The State 2003 SCMR 573 ref.

Aazar Latif Khan assisted by Arfan Ahmad Khan for Petitioners.

Muhammad Mazhar Sher Awan, Additional Prosecutor-General Punjab for the State.

Asif Javaid Qureshi for the Complainant.

Munir Ahmad S.-I. Police Station Manga Mandi, Lahore with police file.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1491 #

2007 P Cr. L J 1491

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUNAWAR HUSSAIN----Petitioner

Versus

THE STATE and 3 others----Respondents

Criminal Miscellaneous No.191-M of 2005, decided on 20th January, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 540 & 561-A---Application for re-examination of witnesses---Petitioner, who was complainant in the case, had alleged that when statements of prosecution witnesses were recorded, the Reader of the Trial Court, who recorded evidence, had wrongly brought on record that at the time of occurrence accused was armed with "Soti" whereas witnesses had specifically stated that at the relevant time accused was armed with a "Toki"---Objection of petitioner having been turned down by the Trial Court and also in revision, petitioner in his petition had challenged said orders---Petitioner had submitted that grievance of petitioner would be redressed, if he was allowed to move application before the Trial Court for re-examination of both said witnesses---Application for re-examination of both said witnesses was allowed by the High Court---Trial Court would decide the matter after hearing both the witnesses.

Zafar Iqbal Chohan for Petitioner.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1492 #

2007 P Cr. L J 1492

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD IMRAN----Petitioner

Versus

FARAZ AHMED and another----Respondents

Criminal Miscellaneous No.7666/BC of 2006, decided on 22nd May, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.489-F---Petition for cancellation , of bail---Bail granting order proceeded on mere technicalities and was conspicuous for the absence of any mention of respondent's/accused's undertaking, which might have been given before the Trial Court, which proceeded Ito grant him bail---Offence under S.489-F, P.P.C. though did not attract the prohibitory clause of S.497(1), Cr.P.C. but mere fact that the prohibitory clause was not attracted, accused would not ipso facto become entitled to grant of bail---Accused had the audacity to renege on his solemn undertaking which he had given before a court of competent jurisdiction and had thereby procured the benefit viz. promptly filed application under Ss.22-A & 22-B, Cr.P.C. not to press his petition for registration of criminal case---Grant of bail to accused in circumstances would amount to giving him benefit of his own deception---Grant of bail was a discretion which could not be exercised in favour of a person who approached the court with smeared hands---Post-arrest bail allowed to accused by the Trial Court was cancelled.

Mian Subah Sadiq Klasson for Petitioner.

Muhammad Mazhar Sher Awan, Additional Prosecutor-General Punjab for the State.

Saeed Khokhar for Respondent No. 1.

Muhammad Riaz, S.-I. Police Station Basirpur, District Okara with police file.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1495 #

2007 P Cr. L J 1495

[Lahore]

Before Muhammad Farrukh Mahmud, J

SHAHBAZ HUSSAIN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.439-M of 2006, decided on 19th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 35---Penal Code (XLV of 1860), S.302(b)--Conviction of accused on two counts--Awarding of sentence---Accused who was convicted on two counts was sentenced to death; his death sentence, however was reduced to life imprisonment on both counts---Accused had sought direction that sentences awarded to him be run concurrently---Validity--Section 35, Cr.P.C. prohibited giving of consecutive sentence in one trial beyond the period of fourteen years; in the interest of justice, it was directed that all sentences of imprisonment inflicted upon accused, would run concurrently.

Javed Shaikh v. The State 1985 SCMR 153 and Muhammad Ittefaq v. The State 1986 SCMR 1627 ref.

Altaf Ibrahim Qureshi for Petitioner.

Rao Atif Nawaz for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1497 #

2007 P Cr. L J 1497

[Lahore]

Before Ijaz Ahmad Chaudhry, J

IMRAN SIKANDAR----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.2675/B of 2007 decided on 26th April, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/109/148/149---Bail, grant of---Benefit of doubt---F.I.R. had been recorded with a delay of four and a half hours---Accused was neither named in F.I.R. nor his name was included in names of accused who had hatched conspiracy in the night preceding the occurrence---Complainant had not disclosed as to how he subsequently came to know about The participation of accused in the occurrence and veracity of the supplementary statement of complainant in this regard, would be seen by Trial Court after recording evidence---No specific role was attributed to accused---Recovery of rifle from accused was immaterial as no crime-empty had been sent to Forensic Science Laboratory for comparison with the same---No reasonable ground existed to prima facie connect the accused with the offence---Case against accused was one of further inquiry---Benefit of doubt was extended to the accused and he was admitted to bail accordingly.

Ch. Waseem Ahmad Gujjar for Petitioner.

Saeed Ashraf Warraich, Additional' Prosecutor-General for the State.

Mian Sikandar Hayat for the Complainant. Muhammad Zakir, A.S.-I. with record.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1500 #

2007 P Cr. L J 1500

[Lahore]

Before Fazal-e-Miran Chauhan, J

BILAL AHMAD----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1033/B of 2006, decided on 27th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.406 & 420---Pre-arrest bail, grant of---Amount in question was given by the complainant to co-accused for joint venture for business with accused---Said co-accused had been declared innocent by the police---Money having not been entrusted to accused, question of misappropriation by accused did not arise---Declaring accused to be guilty of offence by the police, reflected mala fide---Offence alleged to have been committed by accused did not fall within the prohibitory clause of S.497, Cr.P.C.---Ad interim pre-arrest bail already granted to accused, was confirmed, in circumstances.

Muhammad Aslam Zar for Petitioner.

Rafique Ahmad Qureshi for the Complainant.

Mumtaz Hassan Awan and Javed Iqbal Inspector/S.H.O. for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1502 #

2007 P Cr. L J 1502

[Lahore]

Before Muhammad Muzammal Khan and Syed Hamid Ali Shah, JJ

MUHAMMAD SHAFIQUE alias SHEEQA----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.238 of 2005, heard on 27th March, 2007.

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

----Ss. 9(c), 21, 25 & 31---Appreciation of evidence---Prosecution witnesses having no malice or enmity against the accused had supported recovery of 1010 grams "Charas" from him---Fake plantation of such quantity of "Charas" was not probable without any animosity of any member of the raiding party with the accused and he also could not have been substituted in place of any other culprit without any ill motive-- Head of the raiding party having received spy information in the evening could not arrange the search warrant from any Court and he had acted strictly in accordance with S.21 of the Control of Narcotic Substances Act, 1997, without committing violation thereof, which even otherwise was' of no material substance:---Entry in the house and seizure of "Charas" was not vexatious rather supported the prosecution case---Provisions, of S.103, Cr.P.C. having not been made applicable to the searches and arrests under the Control of Narcotic Substances Act, 1997, non-association of private witnesses with the recovery proceedings was not fatal to the prosecution case---Statements of police employees made on oath without any tint of interestedness were as good as those of other witnesses---Accused had not denied police raid and recovery of "Charas" from house, hence it was immaterial whether somebody else was living with him or not---Accused was taken into custody and interrogated, in result of which he led to recovery of concealed "Charas" and such exercise was permissible under S.31 of the said Act---Arrest of the prospective purchaser was not necessary under the law---Delay of ten days in sending the sample parcel to the Chemical Examiner had been duly explained---If the sample parcel had been transmitted intact, the delay simpliciter in transportation was of no consequence---Minor contradictions in evidence which were bound to happen by lapse of time, had no adverse effect on the impugned judgment, which was in consonance with the evidence on the file---Accused had failed to substantiate his defence plea on the record---Conviction and sentence of accused were upheld in circumstances.

Feroz Shah v. The State 2002 PCr.LJ 1470 and Mirza Shah v. The State 1992 SCMR 1475 ref.

(b) Criminal trial---

----Police officials---Witness---Statements of police employees made on oath without any tint of interestedness are as good as those of other witnesses.?

Feroz Shah v. The State 2002 PCr.LJ 1470 and Mirza Shah v. The State 1992 SCMR 1475 ref.

Iftikhar Ahmed Malik for Appellant.

Rana Bakhtiar, Deputy Prosecutor-General for the State.

Date of hearing: 27th March, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1512 #

2007 P Cr. L J 1512

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

AMJAD NAWAZ----Petitioner

Versus

D.P.O. DISTRICT LODHRAN and 5 others---Respondents

Writ Petition No.1235/Q of 2007, heard on 19th June, 2007.

Penal Code (XLV of 1860)---

---Ss. 379, 420, 406, 506, 427, 489-F & 411---Constitution of Pakistan (1973), Art. 199-Constitutional petition---Quashing of F.I.R.--Agreement allegedly executed by petitioner had revealed that issuing Of any cheque as alleged in the F.I.R. was not mentioned---Petitioner, according to F.I.R. had obtained a vehicle on rent and as a security had given a cheque of Rs.4,00,000 to respondent, but that fact did not tally with the agreement as it was only mentioned in the agreement that after 2000 kilometers, party would be responsible to consume oil from its own pocket; that the vehicle would be on rent for one month and month's rent would be Rs.22,000, in said circumstances, alleged delivery of cheque to the complainant by the petitioner was not substantiated---Agreement executed between the parties had brought the case within the ambit of civil liability---Mala fides of the complainant had clearly shown that he, in connivance with two retired D.S.Ps., had manipulated instant F.I.R. by adding different sections in the F.I.R. with reference to different Zimnis---Mala fides of the complainant also were revealed from the fact that he had registered F.I.R. under S.499-F, P.P.C.; it appeared that complainant was in the habit of registering F.I.Rs. on the similar story to blackmail the public to get money and it did not appeal to the mind that when rent of car was Rs.800 per day and worth of a new car was not more than Rs.3,00,000 how was the petitioner issuing a cheque of Rs.4,00,000 to be cashed immediately---Such facts had substantiated the contentions of the-petitioner---Constitutional petition for quashing of F.I.R. was accepted and F.I.R. registered under Ss.379, 420, 406, 506, 427, 489-F and 411, P.P.C. was quashed.

Maj. (Retired) Javed Inayat v. The State PLD 2006 Lah. 752; Muhammad Younas and another v. The State 2006 PCr.LJ 994; Muhammad Ayoub v. Rana Abdul Rehman 2006 YLR, 1852; Major Anwar-ul-Haq v. The State PLD 2005 Lah. 607; Syed Safdar Ali Rizvi v. S.H.O. 2006 PCr.LJ 187 and Punjab National Bank v. Surendar Parsad Sinha 1994 PSC (Criminal) 768 rel.

Hafiz Muhammad Naveed Akhtar and Muhammad Waseem Shahaab for Petitioner.

Mumtaz Hussain Awan and Bashir Ahmad A.S.-I. for the State.

Malik Haqnawaz Bhutta for the Complainant.

Date of hearing: 19th June, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1540 #

2007 P Cr. L J 1540

[Lahore]

Before Iqbal Hameed-ur-Rahman, J

MAZHAR----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.569/B of 2007, decided on 26th April, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)---Bail, grant of---Age of accused according to his medical certificate and birth certificate was about 14 years at the time of occurrence and he was entitled to concession of bail under the law---Accused was behind the bars for more than four months---Despite challan having been submitted in the Court commencement of trial was not likely in the near future---Accused could not be kept behind the bars for an indefinite period as it would amount to .punishing him before trial---Bail was allowed to accused in circumstances.

Zulfiqar Ali alias Kaka v. The State 1986 PCr.LJ 1013; Muhammad Nadeem v. The State 1999 PCr.LJ 463 and Abdul Malik v. The State PLD 1968 SG 349 ref.

Mian Tahir Iqbal for Petitioner.

Zafar Mehmood Anjum with Muhammad Nawaz, A.S.-I. for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1552 #

2007 P Cr. L J 1552

[Lahore]

Before Iqbal Hameed-ur-Rahman, J

AKHTAR HUSSAIN----Petitioner

Versus

STATION HOUSE OFFICER and others----Respondents

Writ Petition No.1654 of 2007, decided on 13th June, 2007.

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

----S. 51, 523 & 550---Procedure by police upon seizure of property taken under S.51 or as stolen---Non-compliance---Effect---Seizure of property made by police under S.550, Cr.P.C. itself becomes illegal if the police does not report it to a Magistrate as required under S.523, Cr.P.C. and the movable property seized has to be returned to the person from whom the recovery is made.

Muhammad Ramzan v. Station House Officer, Police Station Baghbanpura, Lahore and 2 others 1995 PCr.LJ 1947 ref.

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

----Ss. 550 & 523---Constitution of Pakistan (1973), Art.199---Constitutional petition---Seizure of vehicle by police under S.550, Cr.P.C. as a stolen property---Validity---Seizure of property by the police under S.550, Cr.P.C. would itself become illegal if the police did not report the same to a Magistrate as required under S.523, Cr.P.C.---Police had failed to comply with the mandatory requirement of law under S.523, Cr.P.C. and even did not do so alter the passing of eight months, which smacked of their foul play and mala fides---Petitioner as such was entitled to the release of the vehicle---Seizure of the vehicle of the petitioner by the police was declared to be without lawful authority and of no legal effect, with the direction to police to forthwith deliver back the vehicle to the petitioner---Constitutional petition was allowed accordingly.

Muhammad Ramzan v. Station House Officer, Police Station Baghbanpura, Lahore and 2 others 1995 PCr.LJ 1947; Ghulam Hussain v. The State 2004 YLR 148; Abdul Ghafoor v. S.H.O. and others 2001 MLD 670; Mumtaz Hussain v. Muhammad Aslam and 3 others 2002 YLR 398; The Collector of Customs v. Haji Fazal Din and 4 others 1999 YLR 1680; Kamran Shaukat v. Hamid Muhmud A.S.-I. and others 2000 YLR 2930; Tajamul Khan Bangash v. S.H.O. and. others 1999 PCr.LJ 1577; Hassan Muhammad v. Nazar Hussain and others 2005 SCMR 1063; Ali Raza Asif v. S.P. Hafizabad and 3 others 1998 PCr.LJ 1089 and Humayun Azam v. Ch. Sadiq Inspector/S.H.O. and others 1999 MLD 1676 ref.

Malik Muntizar Mehdi for Petitioner.

Muhammad Qasim Khan, A. A. G. with Rustam Inspector.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1555 #

2007 P Cr. L J 1555

[Lahore]

Before Muhammad Khalid Alvi, J

SHAHBAZ----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.1015/B of 2006/BWP, decided on 27th .November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302---Bail, grant of---Further inquiry---Incident was an unseen occurrence---Complainant had implicated accused on the basis of suspicion, but during investigation, she could not substantiate her suspicion before Investigating Officer---Accused was not connected with the motive---Accused's case requiring further inquiry, he was admitted to bail.

Sh. Saeed-ur-Rehman for Petitioner.

Wajid Aftab Misson with Abdur Rehman, S.-I. for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1557 #

2007 P Cr. L J 1557

[Lahore]

Before Iqbal Hameed-ur-Rahman, J

Mst. ZUBAIDA AKHTER and another----Petitioners

Versus

THE STATE and 9 others---Respondents

Writ Petition No.3100 of 2007, heard on 20th June, 2007.

Penal Code (XLV of 1860)---

----Ss. 365-B, 452, 337-A(ii), 337-H(ii), 148 & 149---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Petitioner, who was the star prosecution witness in the case to the extent of her abduction, had categorically refuted the allegation of her abduction and fully owned her Nikah with the petitioner in her statement---Girl being sui juris, with her free will and consent had contracted marriage with the petitioner and had refuted her alleged earlier Nikah with other person which according to her was a false and manipulated document and in that regard the Nazim of concerned Union Council had got registered a criminal case vide F.I.R. under Ss.468, 471 & 420, P.P.C. against Nikah Khawan who was still behind the bars---Girl had also filed a suit for jactitation of her marriage with other person which was still pending adjudication before Judge Family Court and was fixed for evidence---Girl and the other petitioner had proved to have been lawfully .married with each other---When Nikahnama and its contents had been admitted by both the petitioners, law would not permit others to challenge its validity and contents---Even otherwise question as to which Nikahnama was valid, was a subject fit for a Family Court to adjudicate upon before the same was made basis of criminal prosecution of the petitioners---Contentions of the respondents that Nikah of petitioner/girl with other person had not being challenged, was dully rebutted from the registration of F.I.R. under Ss.468, 471, 420, P.P.C. against Nikah Khawan for .preparing a forged Nikahnama as well as by filing of the suit for jactitation of marriage by. petitioner against said other person, which was pending adjudication before Judge Family Court concerned---Apparently, the star witness of the prosecution case had not supported the impugned F.I.R. and the allegation of abduction had been completely rebutted, allegations levelled in the F.I.R, thus could not sustain---Accepting constitutional petition, impugned F.I.R. registered under Ss.365-B, 452, 337-A(ii), 337-H(ii), 148 & 149, P.P.C, was quashed.

Mst. Sughran Bibi v. D.P.O. Lodhran and 5 others 2007 YLR 1292; Kalsoom Bibi v. Station House Officer, Police Station Dhanoot, District Lodhran and 3 others 2007 YLR 1360; Inamul Islam v. Mst. Hussain Bano and 4 others PLD 1976 Lah. 1466; Dr. Masood Khan v. Chairman, Arbitration Council Wah and 2 others PLD 1982 Lah. 532; State of Islamic Republic of Pakistan through Deputy Attorney-General for Pakistan v. Kenneth Marshal and 2 others 2005 SCMR 594; The State through Prosecutor-General Punjab, Lahore v. Sultan Ahmed and others PLD 2007 SC 48; Muhammad Bashir alias Bakola and 7 others v. Superintendent of Police, City Division, Lahore and 9 others 2007 PCr.LJ 864; Dr. Ghulam Mustafa Solangi and 5 others v. The State 205 PCr.LJ 1638 and Mst. Nighat Abbas and others v. Muhammad Yousaf and others 2004 PCr.LJ 620 rel.

Ahmad Raza and Rana Muhammad Asif Saeed for Petitioners.

Maher Allah Bakhsh Hiraj for Respondent No.3.

Mian Muhammad Bashir Bhatti, D.P.G. and Abdul Aziz Khan for the Complainant.

Date of hearing: 26th June, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1562 #

2007 P Cr. L J 1562

[Lahore]

Before Hasnat Ahmad Khan, J

MUNEER AHMED and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.730 and 699 of 2004, heard on 27th March, 2007.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 337-A(ii)---Appreciation of evidence---Benefit of doubt---Prosecution's version was that deceased was murdered due to the pendency of civil litigation between the parties, but prosecution had failed to produce any documentary evidence to substantiate said allegation---Trial Court had rightly disbelieved evidence of motive---Lot of empties of cartridges and bullets were recovered by the police during investigation, but recovered weapons of offence were not sent to Forensic Science Laboratory for matching with the mentioned shells recovered from the spot---Such factor had made recoveries useless for corroboration purposes---F.I.R. showed that accused had fired with his rifle of .222 bore, but recovery of .44 1mm gun was allegedly effected at his instance---Said recoveries were not attested by independent witnesses---Trial Court, in circumstances had rightly disbelieved prosecution evidence qua recovery proceedings---Trial Court had disbelieved medical evidence---Reasons advanced by the Trial Court for disbelieving medical evidence were neither illegal nor result of misreading or non-reading of evidence---Ocular evidence was also not trustworthy as both the eye-witnesses had been .disbelieved qua 11 acquitted co-accused---F.I.R. which was basic document, was recorded at the spot, Police Officer who recorded the F. I. R. at spot had received the information regarding the occurrence from some one else but said source was not disclosed---Prosecution case in circumstances had become a little doubtful as possibility of registering the case after due inquiries and deliberation could not be ruled out---Evidence of both eye-witnesses was found to be contradictory to each other---Ocular evidence was totally contradicted by Medical evidence which had created. doubt about the truthfulness of both the eye-witnesses---Possibility of occurrence being un-witnessed could not be ruled out, in circumstances---Prosecution had failed to prove its case beyond any shadow of doubt and doubt howsoever slight, might be, its benefit should be given to accused and it was better to err in acquittal rather than to err in conviction---Both accused were acquitted of the charge and were directed to be released.

Waseem Mumtaz for Appellants.

Rao Aatif Nawaz for the State.

Date of hearing: 27th March, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1569 #

2007 P Cr. L J 1569

[Lahore]

Before Iqbal Hameed-ur-Rahman, J

ABID HUSSAIN SHAH----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1430/B of 2007, decided on 25th June, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.379, 420 & 468---Bail, grant of--- Accused had been declared innocent during investigation---Delay of three days had occurred in lodging F.I.R.---No recovery had been effected from accused---Offences with which accused was charged did not fall within the prohibitory clause of S.497, Cr.P.C.---No evidence of the commission of offence under S.379, P.P.C. being available, same was not attracted to accused while S.420, P.P.C. was bailable---Offence under S.468, P.P.C. being non-cognizable, bail could not be withheld until the guilt of accused was proved at the trial---Accused, who was behind the bars since 5-3-2006, could not be kept in jail as punishment---Accused was allowed bail, in circumstances.

Abdul Qudus v. The State 2002 PCr.LJ-430 rel.

Muhammad Abdul Wadood for Petitioner.

Bashir Ahmad Bhatti, D.P.G. and Shahid Hussain, A.S.-I. for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1572 #

2007 P Cr. L J 1572

[Lahore]

Before Hasnat Ahmad Khan, J

RAMZAN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.279B of 2007, decided on 19th June, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Occurrence admittedly was unseen---No direct evidence against the accused was available to saddle him with the liability of commission of murder of deceased---Nothing incriminating was recovered from the possession of accused---Whole prosecution case revolved on suspicion of administration of poison by the accused, to the deceased, but prima facie, no such evidence was available on record---Chemical Examiner's report had contradicted the prosecution case---Report of Bacteriologist was inconclusive---Accused as neither owner nor occupant of the house where the deceased was found lying unconscious---Guilt of accused needed further probe as contemplated under S.497(2), Cr.P.C.---Co-accused whose case was at par with the case of accused having already been granted bail by High Court, accused was also- entitled to bail on the principle of rule of consistency---Accused was admitted to bail in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Nadir Manzoor Dugal, D.P.C. with Muhammad Ahmed, A.S.-I. for the State.

Zahid Mehmood Chaudhry for the Complainant.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1585 #

2007 P Cr. L J 1585

[Lahore]

Before Khawaja Muhammad Sharif and Ijaz Ahmad Chaudhry, JJ

ZAHOOR AHMAD and 4 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.348 and Murder Reference No.800 of 2001, heard on 23rd June, 2007.

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

----Ss. 302(b), 324, 337-D, 337-F(ii) & 148---Appreciation of evidence---Benefit of doubt---Previous enmity existed between the parties---F.I.R. having not been lodged with promptitude, possibility of due deliberation and preliminary investigation before registration of F.I.R., could not be ruled out---F.I.R., in circumstances, could not be used as a corroborative piece of evidence to the ocular account and due care and. caution was required to appreciate the prosecution evidence---Presence of complainant and other prosecution witnesses at the 'spot had fully been proved, but mere presence of prosecution witnesses at the spot was not sufficient to declare that they had spoken the whole truth---All the prosecution witnesses were closely related inter se and with the deceased and they were also inimical towards accused due to previous emnity---Said witnesses could be termed as interested witnesses in circumstances---Two injured prosecution witnesses who were not related to any of the parties were withheld and given up by the prosecution---Inference could be drawn that had they been produced in the court, they would not have supported the prosecution version---Prosecution's own case was that there were two sets of accused, first set included two accused, who were apprehended by the police .immediately after the occurrence along. with fire-arm, while the second set of accused consisted of three accused who allegedly decamped from the spot---Prosecution witnesses had contradicted each other regarding roles attributed to one of accused of; second set and they also improved their statements---Prosecution had not stated the whole truth and possibility of false implication of second set of accused could not be ruled out---Possibility of happening of any immediate cause for incident could not be ruled out, which had remained shrouded in mystery---No cogent and unimpeachable independent evidence was produced to corroborate the ocular .account regarding second set of accused---Weapons, no doubt, had matched with the empties recovered from the spot as per report of Forensic Science Laboratory, but, such evidence was created by the prosecution to strengthen its case and no independent witness was produced to prove same---Even the respectables from the locality were not joined to witness said recoveries, which was in violation of S.103, Cr.P.C.---Parcels of empties were sent to the office of Forensic Science Laboratory after 14 days of the incident and possibility of fabricating the empties for matching with the weapons recovered from accused of second set, .could not be ruled out---Such recoveries from said three accused, in circumstances, were legally inconsequential and did not provide any corroboration to the ocular account to their extent---Sufficient doubt had been created in the prosecution evidence to the extent of involvement of said three accused of second set and prosecution having failed to bring home charge to them beyond any shadow of doubt, they were acquitted by extending them benefit of doubt.

PLD 1970 SC 447; 1997 SCMR 1000; Ata Muhammad and another v. The State 1995 SCMR 599 and Feroze Khan v. Fateh Khan and 2 others 1991 SCMR 2220 ref.

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

----Ss.302(b), 324, 337-D, 337-F(ii) & 148---Appreciation of evidence---Participation of two accused of first set in the occurrence stood established on the record beyond shadow of doubt---One of said accused had opened firing at the deceased during incident and all eye-witnesses were in a position to see him while firing---Incident was a daylight occurrence and there was no chance of mis-identity of both said accused by prosecution witnesses who were previously known to each other---All eye-witnesses had fully implicated both said accused in the occurrence and to their extent, the testimony of said prosecution witnesses found corroboration from independent evidence on the record and the circumstances of the case---Both said accused were apprehended from the District Courts on the same day of incident---Both prosecution witnesses remained consistent that accused entered the District Courts and started firing---Both the prosecution witnesses who were police officials had no emnity or grudge against .said two accused to falsely depose against them; their version was further corroborated by the interim order of the swine date passed by the Trial Court---Nothing was on record to suggest about the false implication of both said accused---Dimension of the injuries on the persons of deceased and injured prosecution witnesses also suggested that those were caused by different weapons---Prosecution, in circumstances had proved its case to the extent of said two accused beyond any shadow of doubt---Convictions of the accused recorded by the Trial Court, were maintained---Both the accused had come at the spot while armed with weapons and launched attack in the court premises on the complainant party, which had caused insecurity in the general public---Accused were vicariously liable for the offence and death sentence awarded to them by the Trial Court along with other sentences, were maintained---Appeal to the extent of said two accused was dismissed---Murder Reference to their extent was answered in affirmative and sentence of death passed by the Trial Court, was confirmed.

Ch. Zumard Hussain and Ch. Zahoor Hussain for Appellants.

Sardar M. Ishaq Khan for the Complainant.

Naseer-ud-Din Khan Nayyar, Additional Prosecutor-General for the State.

Dates of hearing: 22nd and 23rd May, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1617 #

2007 P Cr. L J 1617

[Lahore]

Before Muhammad Jehangir Arshad and Hasnat Ahmad Khan, JJ

RIAZ and others----Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1 of 2007 in Criminal Appeal No.27 of 2007 decided on 13th June, 2007.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.302(b)/149 & 148---Suspension of sentence--Sentence of one co-accused had already been suspended---Allegation levelled against the accused of causing injuries to the deceased, prima facie, had not been corroborated by medical evidence---Injuries sustained by the deceased, found in the post-mortem report, were not attributed to any of the two accused---Question regarding the possibility of throwing the net wider by assigning the, role of causing such injuries which, prima facie, did not exist would be requiring reappraisal of evidence at the time of deciding the appeal---Sentence awarded to the accused was suspended in circumstances and .they were admitted to bail accordingly.

Allah Bakhsh Khan Kulachi for Petitioners.

Qazi Saddar-ud-Din for the Complainant.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1636 #

2007 P Cr. L J 1636

[Lahore]

Before Sardar Muhammad Aslam, J

MUHAMMAD ASHRAF----Petitioner.

Versus

THE STATE----Respondent

Criminal Miscellaneous No.3801/B of 2007, decided on 2Sth June, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.395---Bail, grant of---Administration of justice---Delay in trial---Mechanically granting adjournments by Trial Court---Effect---Accused/petitioner was arrested on 1-1-2004; charge was framed on 16-6-2004; direction was issued for completion of trial by or before 31-3-2007, despite that case was hanging fire and the prosecution had failed to produce even a single witness and delay in trial, without any fault attributable to the accused, worked injustice---Prosecution could not be allowed to adopt a relaxed attitude in production of witnesses and keep the accused in jail at the expense and cost of exchequer, which was maintained mainly through indirect taxation by the public at large---Such an unconscionable delay amounted to punishment in advance, without trial---Mechanism for speedy conclusion of trial seemed to have failed---Neither the prosecution nor the process serving agency, was alive or keen in discharge of its duties---Presiding Officers barely watch the proceedings and act as an idle spectator, perhaps they ignore a sacred responsibility on their shoulders to discharge by administering justice and refusing mechanical adjournments---Accused/petitioner having made out a case for concession of bail, bail was granted to him on sureties.

Imtiaz Ahmad Chouhan for petitioner.

Ch. M. Zafar Khan, D.P.G. along with Muhammad Akram, A.S.-I, for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1645 #

2007 P Cr. L J 1645

[Lahore]

Before Hasnat Ahmad Khan, J

GHULAM YASIN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.822/B of 2007, decided on 12th June, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Bail, grant of---Accused, stepfather of the complainant, had allegedly been committing rape with her---No date of occurrence had been mentioned in the F.I.R.---Complainant was not even medically examined during investigation and her solitary statement was not supported by medical evidence---Complainant had filed a civil suit against the accused and others as well as a suit for dissolution of marriage against her husband who was real brother of accused, but she had not levelled the allegations of Zina-bil-Jabr against the- accused therein---Complainant had also appeared before Sessions Court in a habeas. corpus petition filed by her mother and while making her statement she did not mention about her having been made a victim of Zina-bil-Jabr by the accused---Case against accused, thus, required further inquiry within the meaning of S.497(2), Cr.P.C. and he was entitled to bail as a matter of right---Accused was suffering pre-trial punishment for the last ten months and even the charge had not yet been framed in the case---Accused was admitted to bail in circumstances.

Kanwar Intizar Muhammad Khan, for Petitioner.

Ch. Amjad Hussain, Deputy Prosecutor-General with Muhammad Ismaeel, S.-I. for the State.

Mazher Ali Bhatti for the Complainant.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1651 #

2007 P Cr. L J 1651

[Lahore]

Before Khawaja Muhammad Sharif, J

SIKHAWAT ALI and 4others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No. 1363 and Criminal Revision No.675 of 2005, heard on 19th June, 2007.

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

----Ss. 302(b), 449, 148 & 149---Appreciation of evidence---Prosecution witness was the most natural witness as occurrence had taken place in his house---Complainant, who was father of deceased and his sons were not residents of the place of occurrence, they were residents of the far off place---Conviction on capital charge, however, could be awarded/maintained on the basis of a statement of a single witness, if his evidence had come from an un-impeachable source having its intrinsic value---Presence of two accused persons was established on record---Recoveries were also effected from both of them, coupled with the fact that one of said two accused had also admitted his presence at the spot---Occurrence was not a case of grave and sudden provocation---Conviction and sentence awarded to said accused by the Trial Court, were maintained in toto and appeal to their extent was dismissed.

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

----Ss. 302(b), 449, 148 & 149---Appreciation of evidence---One of the co-accused was, real brother of both accused persons who had been convicted and sentenced---Nothing incriminating was recovered from him---Complainant had also admitted during the course of cross-examination that he had appeared before the Investigating Officer and stated that he was there only to separate deceased and accused---Investigating Officer had also declared him innocent being present empty handed at the spot---His actual participation in the occurrence was doubtful---While accepting his version, accused was extended the benefit of doubt, his conviction and sentence was set aside and he was acquitted from the charge and was released---Remaining two accused, though allegedly were armed with Sotas, but no blunt weapon injury was on the person of deceased and only three fire-arm injuries were found on his person---Said co-accused were found innocent during course of investigation by the police, coupled with the fact that they were not even arrested by the police during whole investigation---No recovery was effected from them---Their false implication on account of blood relationship with main accused who had been convicted, could not be ruled out---Case of said two accused was similar to that of one who had been acquitted---Accepting their appeal conviction and sentence awarded to them, was set aside and they were acquitted.

Sardar Muhammad Latif Khan Khosa for Appellant.

Naseeruddin Khan Nayyar, Addl. P.-G. for the State.

Ch. Muhammad Ashraf Kamboh for the Complainant.

Date of hearing: 19th June, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1661 #

2007 P Cr. L J 1661

[Lahore]

Before Hasnat Ahmad Khan, J

GHULAM ABBAS and others----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.886/B of 2007, decided on 13th June, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.364---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(4)---Bail, grant of---F.I.R. having been lodged with a delay of about nine hours, chances of deliberation, consultation and throwing the net. wide by the complainant could not be outrightly ruled out---None of the abductees, after their recovery, while making statements under S.164, Cr.P.C., had charged the accused for abduction or commission or rape and they at no stage nominated the accused as their captors---No incriminating article was recovered from the possession of accused---Allegations levelled by the prosecution against the accused required further inquiry as envisaged by S.497(2), Cr.P.C. as they were suffering incarceration for the last eight months---Trial was not likely to commence in the near future---Bail was allowed to accused in circumstances.

Altaf Ibrahim Qureshi for Petitioners.

Nadir Manzoor Duggal, Deputy Prosecutor-General with Allah Wasaya, S.-I. for the State.

Muhammad Zafar Sayal for the Complainant.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1699 #

2007 P Cr. L J 1699

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MATLOOB HUSSAIN alias BAGGAN and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.905, 923, Criminal Revision No.419 and Murder Reference No.800 of 2002, heard on 19th June, 2007.

Penal Code (XLV of 1860)---

----Ss. 302(b), 148 & 149---Appreciation of evidence---Sentence, reduction in---Case of two versions---Statement of complainant was recorded at the spot two hours after the occurrence and no explanation. was on record, as to why matter was not reported to the police for two long hours---Post-mortem on the body of deceased was held on the next date of occurrence---Withholding of relevant papers, till the next date, had shown that F.I.R, was recorded after due deliberations and. after availability of complainant---Medical evidence had supported the prosecution case only to the extent that deceased lost his life due to fire-arm injuries, but no further---No explanation was available as to the delay of thirty hours between death and post-mortem examination---Both parties were inimically opposed to each other---Motive, would cut both ways and could not be used as corroboration---Evidence on record had established that prosecution witnesses, were not present at the time of

occurrence and prosecution case was replete with doubts---Deceased was involved in murder case of brother of accused and was absconder---Plea of self-defence taken by accused was found to be correct during investigation of the case as per statement of the Police Officer/Inspector---No doubt the court should not be influenced by the opinion of police, but it was equally true that same could not be thrown to the wind, however, by repeatedly firing at the deceased, accused had exceeded his right of private defence---Appeal to the extent of co-accused was allowed, setting aside impugned judgment to his extent and he was acquitted and was released---Appeal of the accused was partly allowed and his conviction under S.302(b), P.P.C., was altered to offence under S.302(c), P.P.C. reducing his sentence to fourteen years with benefit of S.382-B, Cr.P.C.

Khurram Malik and others v. The State and others PLD 2006 SC 354; Muhammad Shafiq v. The State 2002 SCMR 1389; Farid v. The State PLD 2002 SC 553; Toti Khan v. State 2002 SCMR 1607 and Amrood Khan v. State 2002 SCMR 1568 rel.

Khalid Javed and another v. The State 2003 SCMR 1419 and Mairaj Begum v. Ejaz Anwar and others PLD 1982 SC 294 ref.

Naseem Sabir Chaudhry for Appellant.

Ch. Muhammad Aslam Sandhu, Addl. Prosecutor-General for the State.

Sardar Balakh Sher Khosa for the Complainant.

Date of hearing: 19th June, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1715 #

2007 P Cr. L J 1715

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD NASIR----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.3610/B of 2006, decided on 12th June, 2007.

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

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(4)---Bail, grant of---F.I.R. suffered from delay of two days---No force, according to F.I.R., had been employed by the accused for the abduction of the victim, rather she had willingly accompanied the accused---Abductee in her statement had neither levelled allegation of rape against the accused nor allegation of selling her---Main co-accused and another co-accused in the case charged with the same role as that of accused, had already been released on bail---Case of accused, thus, required further inquiry under S.497(2), Cr.P.C.---Abscondence of accused, no doubt, would ordinarily deprive him of some of his normal rights including even bail in such offences, but such rule of propriety could not override the right of his having become entitled to bail as a matter of right after his case was found to be one of further inquiry---Accused was also entitled to bail on the principles of rule of consistency---Despite the detention of accused in jail for a period of 1-1/2 years charge in the case had not yet been framed---Early conclusion of trial was basic right of accused which had been denied to him---Bail was allowed to accused in circumstances.

Muhammad Ismail v. Muhammad Rafiq PLD-1989 SC 585 ref.

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

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(4)---Bail---Abscondence of accused---Effect---No doubt an absconder loses some of his normal rights including bail on the rule of propriety, but when he becomes entitled to bail as a matter of right on finding his case being one of further inquiry, said rule of propriety cannot override his right of bail.

Muhammad Ismail v. Muhammad Rafiq PLD 1989 SC 585 ref.

Malik Ilyas Ahmad Langrial for Petitioner.

Nadir Manzoor Duggal, Deputy Prosecutor-General with Abdul Rehman, A.S.-I, for the State.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1722 #

2007 P Cr. L J 1722

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD NAZIR----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.4424/B of 2007, decided on 26th June, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.420, 468 & 471---Pre-arrest bail, grant of---Further inquiry---Previous enmity existed between accused and the complainant---Accused was alleged to have prepared a bogus Birth Certificate of his son to bring him within the domain of Juvenile Justice System Ordinance, 2000---Prosecution had failed to show as to what benefit had been derived by accused by getting prepared the forged birth certificate as even according to the entry in the B-Form of NADRA, he was less than 18 years of age---Counsel for accused had also painted out that even the Medical Board had declared son of accused between 16 to 17 years---Co-accused who had prepared/issued alleged forged documents had already been granted pre-arrest bail and case of accused was even on better footing than the co-accused---Nothing was to be recovered from accused and possibility of his false implication in the case by complainant to pressurize and restrain him from pursuing the case of his son, could not be ruled out---No sufficient evidence was on record to prima facie connect accused with alleged crime, and. he had succeeded in making out a case of further inquiry---Mere involvement of accused in other criminal cases of different nature could not be a ground for denying relief of bail to accused as prosecution had to stand on its own legs and previous character of accused could not be used for the benefit of prosecution, if it failed to prima facie connect him with alleged crime in a particular case---Ad interim pre-arrest bail already granted to accused, was confirmed, in circumstances.

Ch. Nawab Ali Mayo for Petitioner.

Sneed Ashraf Warraich, Addl. Prosecutor-General for the State.

Sajid Naseer Chaudhry for the Complainant.

Muhammad Bilal, A.S.-I with record.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1736 #

2007 P Cr. L J 1736

[Lahore]

Before Khawaja Muhammad Sharif and Hasnat Ahmad Khan, JJ

LIAQAT ALI----Appellant

Versus

THE STATE----Respondent

Criminal Appeals Nos.670 of 2001, 232 of 2003 and Murder Reference No.425 of 2001, decided on 11th July, 2007.

Penal Code (XLV of 1860)---

----S. 302/34---Appreciation of evidence---Inconsistency existed between the medical evidence and ocular evidence acid medical evidence had totally contradicted ocular version---Had both the eye-witnesses seen the occurrence, their evidence could not have been inconsistent with the medical evidence and they would have certainly observed that there was only one fire which hit the deceased---Case was not the one wherein so many shots were made by so many persons---Had it been such a case, that glaring inconsistency would have been condoned---Motive of occurrence remained unproved---Facts had. proved that occurrence was adventitious one---Prosecution witness, who was Homeopathic. Doctor, his clinic being at a distance of 1-1/4 miles from the place of occurrence had not given any special reason to be present at the place of occurrence on the day of occurrence---Other prosecution witness, who was not produced, was not a resident of village concerned---Accused, as per prosecution version, .had resorted to indiscriminate firing, but no crime empty was recovered from the spot---Both eye-witnesses had made dishonest material improvements besides contradicting each other---All said facts had indicated that ocular evidence was neither confidence-inspiring nor dependable---Case was of two versions and defence version was more probable than prosecution version---Attending circumstances had spelled out the plea of self-defence of property---Even the statements of the eye-witnesses had revealed that complainant was not in possession of land in question and the tenor of their cross-examination had revealed that occurrence had taken place due to the fact that deceased had tried to dispossess. accused---Recovery of weapons of offence, was useless for the prosecution; firstly because no empty of bullet was recovered from .the place of occurrence; and secondly in view of the fact that defence plea had been accepted---Recovery had even otherwise lost its efficacy---Prosecution had tailed to prove its case in the manner as alleged by it---While extending benefit of doubt to co-accused, it was held that murder of deceased was committed by accused in exercise of right of defence of property---Appeal filed by both accused was accepted and they were acquitted of the charge.

Muhammad Ikram Butt and others v. Sajjad Hussain and others PLD 2004 SC 244; Syed Ali Beopari v. Nibran Mulla and others PLD 1962 SC 502 and Bashir Ahmad and others v. The State PLD 1985 Lah. 158 ref.

M. Ahsan Bhoon for Appellant.

Nusrat Javed Bajwa for the Complainant.

Dates of hearing: 10th and 11th July, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1748 #

2007 P Cr. L J 1748

[Lahore]

Before M. Bilal Khan, J

IBRAHIM GHULAM MUSTAFA----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.4589/B of 2007, decided on 11th July, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.489-F---Pre-arrest bail, refusal of---Ample incriminatory material was available against accused to connect him with the alleged offence---In order to appreciate contentions raised by counsel for accused, a deeper appreciation of material available on record was required, which exercise could not be undertaken by the High Court at bail stage---One of the basic ingredients for the grant of pre-arrest bail, i.e. malice on the part of the complainant or the police, was not forthcoming in the material available on record---Considerations for the grant of pre-arrest bail and post-arrest bail, were entirely different---Grant of bail to accused ~in given backdrop of the case at that stage, would amount to stifling the case of the prosecution, which was neither proper nor desirable---F.I.R. was lodged when more than five months had elapsed and accused had been able to successfully elude the process of law---Ad interim pre-arrest bail granted to petitioner, was recalled.

Zia-ul-Hassan v. The State PLD 1984 SC 192 rel.

Ch. Abdul Waheed and Ishfaq Qayyum Cheema for Petitioner.

Muhammad Mazhar Sher Awan, Additional Prosecutor-General for the State.

Haider Rasul Mirza for the Complainant.

Asghar Ali, A.S.-I. Police Station Factory Area, Lahore with police file.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1751 #

2007 P Cr. L J 1751

[Lahore]

Before Khawaja Muhammad Sharif, J

GHULAM RASOOL----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.3656/B of 2007, decided 29th June, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Bail, refusal of---Case of one deceased and ,one injured, who had received fire-arm injuries on .the vital part of her body, which injuries were attributed to accused---Injured person supporting the prosecution case had made statement against accused---Contention of accused that he had been declared innocent, was totally wrong---Counsel for accused had himself produced copy of challan/report under section 173, Cr.P.C. wherein name of accused had been placed in Column No.3, while his co-accused had been placed in Colunm No.2 being proclaimed offenders and had been shown in red ink---No merit having been found in the petition, same was dismissed.

Sikandar Zulgarnain, for Petitioner.

Naseer-ud-Din Khan, Addl. Prosecutor-General with Muhammad Rafiq S.-I. for the State.

Rana Muhammad Arshad for the Complainant.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1752 #

2007 P Cr. L J 1752

[Lahore]

Before Muhammad Muzammal Khan and Syed Shabbar Raza Rizvi, JJ

AZAD QADEER----Petitioner

Versus

THE STATE and 2others----Respondents

Writ Petition No.5554 of 2007, decided on 27th June, 2007.

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

----Ss. 4, 6, 7 & 23---Constitution of Pakistan (1973), Art.199---Constitutional petition---Transfer of case to regular Court---No previous enmity existed between the parties---Occurrence had taken place in a restaurant which was also an open place for the public situated in the market---Accused not only caused injuries and trauma to the injured, complainant and his son, but it created fear and sense of insecurity in the whole vicinity and area---Occurrence had taken place in one of the busiest place of the City---Offences committed by accused mentioned in F.I.R, had clearly shown the motivation, object and design behind the occurrence, was to frighten and traumatize not only the complainant party, but the whole locality---Accused had come from jail only a few days before the occurrence---Record of accused persons was also present in the court, which had shown that all members of the family were involved in a number of criminal cases of similar nature---Impugned order whereby application of petitioner for transfer of case to ordinary court of jurisdiction, was dismissed, was in conformity with case (2007 SCMR 142)---Constitutional petition filed against order of Anti-Terrorism Court whereby application under S.23 of Anti-Terrorism Act, 1997 for transfer of case was dismissed, being devoid of any substance, was dismissed.

Mohabbat Ali and another v. State and another 2007 SCMR 142 rel.

Naveed Inayat Malik for Petitioner.

M. Sneed Bhatti for Respondent.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1755 #

2007 P Cr. L J 1755

[Lahore]

Before Fazal-e-Miran Chauhan, J

ALLAH BAKHSH----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.2605/B of 2005, decided on 13th October, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324 & 109---Bail, grant of--- Further inquiry---Accused was not present at the spot and only allegation against him was abetment provided to co-accused in doing away with deceased---Case of accused in circumstances required further inquiry into his guilt---Accused was allowed bail, in circumstances.

Abdul Hameed v. The State 1983 PCr.LJ 1950; Malik Ejaz Ali v. The State 2005 MLD 997 and Feroze v. The State 2000 Law Note (Lahore) 5 rel.

Muhammad Shoaib Khan Buzdar for Petitioner.

Shehzad Khan for the State along with Habib Ullah S.-I.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1776 #

2007 P Cr. L J 1776

[Lahore]

Before Muhammad Jehangir Arshad, J

Mst. MISBAH TABASSUM and 2others----Petitioners

Versus

GOVERNMENT OF PUNJAB through Secretary, Home Department, Lahore and 3others----Respondents

Writ Petitions Nos.3064 and 2974 of 2007, decided on 12th June, 2007.

(a) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

--------S. 3---Constitution of Pakistan (1973), Art.199---Constitutional

petition---Maintainability---Detention order---Availability of alternate remedy to petitioner to file representation to Home Secretary---Special Secretary in his comments had tried to justify the impugned order---Home Secretary himself had passed impugned order---No one should be a judge of his own cause---High Court overruled such preliminary objection---Constitutional petition was maintainable.

Mulazim Hussain Shah v. Province of Punjab through Secretary, Home Department, Government of Punjab, Lahore and 2 others PLD 2006 Lah. 108 and Abu Bakar Muhammad Raza v. Secretary to Government of Punjab Home Department and 3 others PLD.2005 Lah. 370 rel.

Sh. 12ashid's case PLJ 2004 Lah. 1221 distinguished.

(b) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960) ---

----S. 3---Constitution of Pakistan (1973), Arts.9, 10, 15, 16, 17 & 199---General Clauses Act (X of 1897), 5.24-A---Constitutional petition---Detention orders---Involvement of petitioners in anti-social and anti-Government activities---Cyclostyle recommendations. of Superintendent of Police for passing such orders without referring to any material or evidence collected by Agency---Validity.---Such activities were neither an offence nor could be equated with action against interest of the State---Such recommendations and impugned orders did not show petitioners' involvement in an activity detrimental to sovereignity or integrity of Pakistan, public order or morality---Detaining Authority before passing detention order had to satisfy itself about activities of a person prejudicial to public safety or maintenance of public order---Impugned- orders had been passed without application of mind about alleged activities by any of petitioners---Provincial Home Secretary, without giving reasons had sent most of the petitioners to jails situated at a distance of 300 kilometers from their residences---Such act of Home Secretary was most inhuman and cruel showing his intention to punish petitioners for their alleged activities---High Court for such act of Home Secretary had ordered him to pay from his pocket Rs.20,000 to each petitioner,. but recalled such order at the request of Law Officer giving assurance on his behalf not to act in future in such an inhuman manner---Impugned order violated Arts.9, 10, 15 16 and 17 of the Constitution---High Court declared impugned order as without lawful authority and directed forthwith release of petitioners.

.2006 SCMR 496=2006 PLC (C.S.) 355; Mie Ahdul Bagi Baluch v. The Government of Pakistan through the Cabinet Secretary .Rawalpindi PLD 1968 SC 313 and A.K. Khalid p.C.S. Section Officer, Ministry of Interior Government of Pakistan, Rawalpindi v. Khan Ghulam Qadir Khan PLD 1962 (W.P.) Lah. 411 rel.

---S. 3---Criminal Procedure Code (V of 1898), S.144--Penal Code (XLV of 1860), S.188---Violation of S. 144, Cr.P.C. being an offence punishable under S.188, P.P.C. could not attract provisions of Maintenance of Public Order, 1960.

(d) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Criminal Procedure Code (V of 1898), S.144---Penal Code (XLV of 1860), S.188---Constitution of Pakistan (1973), Art.199---Constitutional petition---Detention order---Ground of detention being violation of S.144, Cr. P. C. by petitioners---Validity---Impugned order did' not show that at relevant time S.144, Cr.P.C. was imposed in the District of petitioners---No action against petitioners for such violation had been taken---Violation of S.144, Cr. F.C. being an offence punishable under S.188, P.P.C. could not attract provisions of West Pakistan Maintenance of Public Order Ordinance, 1960---Impugned order not only showed lack of knowledge of Home Secretary regarding application of S.144, Cr.P.C. but showed- lack of application of his conscious mind in its passing---High Court declared impugned order as without lawful authority and directed forthwith release of petitioners.

A.K. Khalid P.C.S. Section Officer Ministry of Interior, Government of Pakistan Rawalpindi v. Khan Ghulam Qadir Khan PLD 1962 (W.P.) Lah.-411 rel.

Malik Muhammad Rafiq Rajwana along with Mazhar Jameel Qureshi for Petitioners (in Writ Petition No.3064 of 2007 and 2974 of 2007).

Muhammad Qasim Khan, Zafarullah Khan Khakwani and Mubashir Latif Gill, A.A.-Gs. with Naveed Rouf, Deputy Secretary, Home Department, Government of Punjab, Lahore for Respondents.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1788 #

2007 P Cr. L J 1788

[Lahore]

Before M. Bilal Khan, J

ABDUL RAZZAQ alias BHOLA----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.4249/B of 2007, decided on 3rd August, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.376/511---Bail, refusal of---Accused had duly been- nominated in the F.I.R.---Police registered F.I.R. three days after occurrence, which delay could not be attributed to complainant---Very serious allegation of outraging the modesty of a young girl of 15 years of age, who was a student of class VIII, was levelled against accused---Victim girl was present during the course of hearing along with her father (complainant); she tearfully narrated the depraved and atrocious manner in which. she had been dealt with by the accused---Counsel for accused had not been able to point out any malice or rancour which might have been harboured by the complainant for involving. accused in a serious case in which complainant had himself run the risk of stigmatizing his own daughter---Contention of the counsel for accused that F.I.R. was politically motivated, was also without any substance, inasmuch as complainant happened to be lowly paid primary school teacher having no involvement in politics---Ample incriminatory material was available against accused to prima facie connect him with alleged offence. as .statement of the prosecutrix had sufficiently incriminated accused.

Ali Asghar and others v. The State 1988 PCr.LJ 117?; Dinu alias Din Muhammad v. The State 1988 PCr.LJ 1362; Sharif and others v. The State 1999 PCr.LJ 871; Muhammad Farooq v. The State 2000 PCr. LJ 1791; Muhammad Naveed Iqbal v. The State and another 2001 PCr. LJ 1930; Tahir Abbas alias Babar Ali 2001 MLD 1559 and Atta Muhammad v. State 2007 PCr.LJ 1149- ref.

S.M. Masud for Petitioner.

Muhammad Mazhar Sher Awan, Addl. Prosecutor-General for the State.

Sajid Naseer Chaudhary for the Complainant and Mst Zunaira Kausar the alleged prosecutrix.

Maqsood Ahmad, A.S.-I. Police Station Chhanga Manga, District Kasur with police file.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1802 #

2007 P Cr. L J 1802

[Lahore]

Before Iqbal Hameedur Rahman, J

Master MUHAMMAD ASHIQ----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.5259/B of 2007, decided on 7th August, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S. ,365-B-Pre-arrest bail, confirmation of---Police, after registration of case, had recorded statement of alleged abductee in which she had stated that she being sui juris; of her own freewill and volition, had contracted marriage with co-accused and that no one had abducted her---Vdhen Investigating Officer had recorded said statement of alleged abductee under S.161, Cr.P.C., she could not be stated to be under .pressure of accused persons to have made said statement under coercion when she was in the custody of the Police---Alleged abductee was also produced before the Illaqa/Judicial Magistrate for recording her statement under 5.164, Cr.P.C.---Alleged abductee at that time, could speak against accused and could get her statement recorded controverting her earlier statement recorded before Investigation Officer tinder S.161, Cr. P.C.---When Investigating Officer moved application before Judicial Magistrate for conducting medical examination of alleged abductee, she was not willing for having herself medically examined---Subsequent statement under S.161, Cr. P. C. recorded at the direction of Sessions Judge; wherein she had admitted that first she appeared before the police along with accused and made statement in their favour and now she wanted to make statement against them, had shown mala fide of the Police and the complainant---Accused, who -was a school teacher, was not present at the time of occurrence as was evident from the attendance certificate issued by the Headmaster of said school that accused .was present in the school at that time---Case of accused having become that of further inquiry, ad interim pre-arrest bail already granted to him; was confirmed in circumstances.

Amer Sohail Sheikh for Petitioner.

M. Javed Azhar Rana, D.P.G. for the State.

M. Ishaque S.-I. with Record.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1870 #

2007 P Cr. L J 1870

[Lahore]

Before Khawaja Muhammad Sharif, J

SARWAR MEHMOOD----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous Nos.5069/B 5048/B and 5043/B of 2007, decided on 18th July, 2007.

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

----S. 498---Penal Code (XLV of 1860), Ss.420, 467, 468 & 471---Bail before arrest, confirmation of---Allegation against accused persons was that they were the marginal witnesses of the disputed agreement to sell, which agreement, had not been recovered---One of the accused, who had filed application for his after arrest .bail, immediately after his arrest, made a statement to the effect that he had forged/concocted said .agreement to sell---Investigating Officer, in the given situation, was supposed to get said agreement recovered from the accused and then send the same to Handwriting Expert for comparison of signatures of accused person to dig out the truth, but Investigating Officer for mala fide reasons, with ulterior motive, and for extraneous consideration, did not recover same, despite said accused remained on physical remand with Investigating Officer for a period of six-days---Investigating Officer dishonestly had conducted investigation in a partial manner and had spoiled prosecution case by not recovering such an important piece of evidence because the whole case was hinging upon said agreement to sell---Both accused had joined investigation and stated during the course of investigation that they never signed the same---In absence of any opinion qua existence or otherwise of their signatures on the non-recovered agreement to sell, ad interim pre-arrest bail already granted to said two accused persons, were confirmed.

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

----S.497---Penal Code (XLV of 1860), Ss. 420, 467, 468 & 471---Bail after arrest, refusal of---Offence alleged against accused fell within the prohibitory clause of S.497(1), Cr.P.C.---Accused, prima facie, being main accused in the case, was not entitled to the relief of bail after arrest.

Syed Mumtaz Ali Shah Hamdani, Ch. Abdul Majeed Gondal and M. Aslam Bajwa for Petitioners.

Naseeruddin Khan Nayyar, Addl. Prosecutor-General for the State with Azmatullah Gondal S.P. {Investigation) Model Town Division, with Asghar Ali Virk, S.-I/Investigating Officer and Kai Muhammad Nawaz, S.-I.

Ch. Zulfiqar Ali Moazzam and Ch. Hurmat Khan Mayo for the Complainant.

Sardar Muhammad and Bhobhlay Khan in person.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1876 #

2007 P Cr. L J 1876

[Lahore]

Before Tariq Shamim, J

BAHZAD SARWAR----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.4716/B of 2007, decided on 23rd July, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---Telegraph Act (XIII of 1885), S.25---Penal Code (XLV of 1860), Ss.452 & 506--- Pre-arrest bail, refusal of---Proviso to S.25(b) of Telegraph Act, 1885 as well as Ss.506, 452, P.P.C., which were prima facie attracted in the case were all non-bailable offences---Said offences though did not attract prohibitory clause of S.497, Cr.P.C. but in such like cases facts of the case were to be kept in view---Facts disclosed did not warrant grant of pre-arrest bail to accused---Recovery of two pictures of the sister of the complainant from accused had further connected him with the prosecution case---Mobile phone with which accused had recorded conversation and taken pictures of complainant was yet to be recovered from him---Arbitrator appointed in the case found that accused and his co-accused were responsible for the theft committed in the house of the complainant---Accused had remained a fugitive from law for a considerable period and had been declared a proclaimed offender by the court---Extraordinary concession of pre-arrest bail could. not be extended to accused.

Saif Ullah Khan for Petitioner.

Zafaryab Khan for the Complainant.

Amjad Hussain, Deputy Prosecutor-General with Zafar-ul-Hassan, S.-I. with record.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1915 #

2007 P Cr. L J 1915

[Lahore]

Before Nasim Sikandar, J

KHALID AZIZ KHAN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.4743/B of 2007, decided on 20th September, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.489-F---Ad interim pre-arrest bail, confirmation of---Accused, Managing Director/Chief Executive Officer of a limited company which had gone into liquidation and where a liquidator also had been appointed, was alleged to have issued cheques of the value of Rs.2,84,096 in consideration of supply of cotton to the Spinning Mill owned by said limited company---Bank had declined to honour said cheques---Accused was one of the 57 share-holders of the said limited company and had not issued cheques from his personal account nor had incurred any personal liability on supply of cotton nor he was the sole beneficiary of the supply made to the limited company---Factum of the company having gone into liquidation and a liquidator having been appointed, the nature of claim of the complainant as supplier as also the status of the accused as Chief Executive Officer had undergone a change, legal implications of such change also needed to be considered and ruled upon, which would be possible only after production of evidence of the parties in trial---Issue of liability of Chief Executive of the company extended and over-laped his liability as a share-holder also needed further consideration---Accused was stated to be more thane 70 years of age and a number of documents, medical prescriptions, laboratories results had been placed on record to show that he was a heart patient besides suffering from other serious ailments---All documents relevant to the case being not in possession of the accused, he was not required for their recovery and such documents could very well be collected by the Investigating Officer without arresting the accused---Ad interim bail already allowed to accused was confirmed by the High Court.

Salman Safdar for Petitioner.

Ms. Azra Parveen, Deputy Prosecutor-General, Punjab, with Khalid Javed S.-I.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1921 #

2007 P Cr. L J 1921

[Lahore]

Before Tariq Shamim, J

Khawaja FARHAT JAVED----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.5301/B of 2007, decided on 6th September, 1007.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.186 & 506(ii)---Punjab Local Government Ordinance (XIII of 2001), S.141---Pre-arrest bail, grant of---Offence under S.186, P.P.C., being punishable with 6 months' R.I. was bailable; and prima facie provisions of S.506(ii), P.P.C., were not attracted to the facts and circumstances of the case---Offence under S.141-2-A, of Punjab Local .Government Ordinance, 2001 was punishable with three years imprisonment which was not covered by the prohibition contained in subsection. (1) of S.497, Cr.P.C.---Grant of bail was a rule and refusal an exception in cases not punishable with death, transportation of life or ten years imprisonment---Ad interim pre-arrest bail granted to accused, was confirmed, in circumstances.

Tariq Bashir v. The State PLD 1995 SC 34 ref. Ch. Muhammad Saleem for Petitioner.

Mian Ihsan-ul-Haq Sajid, D.P.-G. for the State along with Aslam, S.-I.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1924 #

2007 P Cr. L J 1924

[Lahore]

Before Iqbal Hameed-ur-Rahman, J

ABDUL WAHID----Petitioner

Versus

Mst. ALIYA and 2 others----Respondents

Criminal Miscellaneous No.850/H of 2007, decided on 27th August, 2007.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition for recovery of female minor---Minor whose custody was sought by the petitioner, was 4 years and\6 months old---Respondent being real mother of minor, was entitled to have the custody of her minor daughter as she had a preferential right of hizanat over the child---Mother could only be disentitled to the custody of .her minor child, if she remarried or went and resided at a distant place; or was leading an immoral life; or she neglected to take proper care of the child---In the case, none of said disentitlements applied to the mother---Minor, in circumstances was allowed to be retained by mother.

Mst. Khalida Parveen v. Muhammad Sultan Mahmood and another PLD 2004 SC 1 and Mst. Razia Rehman v. Station House Officer and others PLD 2006 SC 533 rel.

Tanveer Ahmad Hashmi for Petitioner.

2007 P Cr. L J 1949

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD AASIM and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1449 of 2006, decided on 2nd October, 2007.

Penal Code (XLV of 1860)---

----Ss. 302(b), 201 & 364---Appreciation of evidence---Benefit of doubt---Out of two witnesses of the extra-judicial confession one was real maternal-uncle of deceased, while second one was his friend---Alleged confession was joint, which was a very weak type of evidence and was inadmissible in evidence, which was ruled out of consideration---Dead body/skeleton of the deceased was pointed out by accused about eleven months after the occurrence---Dead-body being in advanced' stage of putrefaction, it was just impossible that the dead body of deceased could have been identified after eleven months of the occurrence by an injury an the head of deceased with a sharp-edged weapon---Articles like identity card, two cheques, a watch etc. allegedly recovered on pointation of one of the accused allegedly belonging to deceased, were not even mentioned in the F.I.R.---No accused would be of such foolish type that he would keep said. articles for such a long period of one year---Said recovery was of no avail to the prosecution---No motive existed against accused---Complainant on every stage had been changing his version about accused persons---Case against accused being full of doubts benefit of said doubts was given to accused---Impugned judgment was set aside, accused were acquitted and were released.

Muhammad Afzaal Siddiqi for Appellants.

Ch. Jamshaid Hussain, D.P.G. for the State.

Asghar Ali Gill for the Complainant.

Dates of hearing: 1st and 2nd October, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1967 #

2007 P Cr. L J 1967

[Lahore]

Before Khawaja Muhammad Sharif, J

MAQSOOD alias SOODI and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.594 of 2005, heard on 28th September, 2007.

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

----Ss. 302(b), 337-L(ii) & 34---Appreciation of evidence-Injured prosecution witness, had fully supported prosecution case---Said witness being a star witness, his testimony could not be doubted---Ocular account in the case was corroborated by the medical evidence---No background of enmity existed between both the parties and mere relationship of witnesses with each-other was no reason to discard their testimony---Prosecution had proved its case against accused beyond any shadow of doubt to sustain his conviction---Conviction and sentence awarded to accused by the Trial Court were maintained, with the only modification that amount of Rs.2,00,000 would be read as compensation (not fine) and would be paid to the legal heirs of deceased.

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

----Ss. 302(b), 337-L(ii) & 34---Appreciation ,of evidence---Co-accused in the case was attributed only Lalkara---Sentence of co-accused was suspended and his absence led to issuance of his non-bailable warrants of arrest---Co-accused, had been produced before the court in handcuffs---Appeal to the extent of co-accused was allowed and impugned judgment to his extent was set aside and he was acquitted from the case.

Nazir Ahmad Qureshi along with M. Bashir Chaudhry for Appellants (at State expenses).

Ch. Jamshed Hussain D.P.G. with Saifullah Inspector/S. H.O. and Imran S.-I. with Hameed appellant in handcuffs for the State:

Syed Fazal Abbas Bokhari for the Complainant.

Date of hearing: 28th September, 2007.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1977 #

2007 P Cr. L J 1977

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD AMJAD----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.5269/B of 2007, decided on 28th September, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Bail, grant of---Further inquiry---Co-accused who had been attributed exactly the same role, had been allowed bail by the Trial Court on the ground that both parties had filed suits for rendition of accounts against each other which were pending in the civil courts; Chat dispute between the parties was of civil nature and that offences charged with did not attract the prohibitory clause of S.497(1), Cr.P.C.---State Counsel had not been able to point out any distinguishable features of the case whereby concession of bail could be declined to accused., when his co-accused had already been granted bail---Accused who though had absconded, was subsequently arrested- and was in custody for the last more than four months--Involvement of accused in the alleged offence, itself requiring further inquiry, he could not be detained in jail for an indefinite period by way of punishment for his abscondence only---Accused was admitted to bail, in circumstances.

Ch. Imran Raza Chadhar for Petitioner.

Muhammad Iqbal Chaudhry, U.P.G. for the State.

Nazeer Ahmad Javaid for the Complainant.

Zafar Iqbal Inspector/S.H:O. Police Station Civil Lines, Faisalabad with police file.

PCRLJ 2007 LAHORE HIGH COURT LAHORE 1981 #

2007 P Cr. L J 1981

[Lahore]

Before Tariq Shamim, J

MUBASHAR NADEEM----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.6069/B of 2007, decided on 28th September, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 396 & 412---Bail, grant of---Accused was not nominated in the F.I.R., which was lodged against some unknown persons for committing the murder of the brother of complainant---Complainant, on the following day, got a supplementary statement recorded, wherein he nominated accused and others as accused who had murdered his brother on the basis of information received from prosecution witnesses---Said witnesses did not report the matter to the complainant, although as per contents of the F.I. R., the complainant was following the deceased at some distance and had reached the spot shortly after the occurrence---Prosecution version as narrated in the F.I. R: as well as the supplementary statement, did not appeal to reason---Even in the supplementary statement, it was not mentioned that accused had caused any injury. to the deceased---Criminal Procedure Code, 1898 did not contain any provision pertaining to recording of a supplementary statement which, even otherwise, had no evidentiary value and could not be equated with the F.I.R.---During the investigation no weapon was recovered from accused who was behind the bars for the last about eleven months and was not required by the .police for investigation---Further incarceration of accused would not serve. any useful purpose and would amount to .punishing him without a trial---Co-accused having been allowed bail, accused also deserved same concession in view of principle of consistency---Accused was admitted to bail, in circumstances.

Ch. Riaz Ahmed for Petitioner.

Ch. Amjad Hussain, D.P.G: for the State along with Zia Ullah, A.S.-I. with record.

PLD 2006 Lah. 304; 1997 MLD 3021; 2003 YLR 3191; PLD 1953 Lah. 495; PLD 2005 Lah. 470 and PLD 2005 Kai.. 621 rel.

----Ss. 164 & 561-A---Scrutiny of propriety, validity and admissibility of statement under S.164, Cr.P.C.---Jurisdiction---Scope---Quashing of proceedings---Impugned enquiry proceedings undertaken by Judicial Magistrate, which were without any legal backing and beyond the scope of jurisdiction as provided in Cr.P.C., warranted striking down by High Court, ,in exercise of its inherent powers under S.561-A, Cr.P.C.---To scrutinize the propriety, validity and admissibility of statements recorded under S.164, Cr.P.C., however, would be the prerogative of the Trial Court at the first instance.

M.A. Tahirkheli for Petitioner.

Ms. Raheela Mughal for the State.

Sajjad Afzal, Saeed Akhtar Khan, Syed Shabbir Hussain Shah for Respondents.

Date of hearing: 21st November, 2006.

PCRLJ 2007 PESHAWAR HIGH COURT 458 #

2007 P Cr. L J 458

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

SHAH NAWAZ alias NAWAZAY----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No. 437 of 2006, decided on 4th September, 2006.

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

----S. 13----Appreciation of evidence---Police party consisting of senior police officials, raided the house of accused, apprehended him form the spot and recovered a Kalashnikov with live round and spare chargers from his house----Witnessed had demonstrated complete unanimity on material points and accused had failed to point out any discrepancy in their statements---Contradictions highlighted by the counsel for accused were minor in nature on basis of which it could not be held that the trial of the case stood vitiated---Prosecution witnesses though were officials of police, but they had no reason or motivation to falsely implicate accused---Acquittal of co-accused would not detract the credibility of prosecution witnesses as co-accused had earned a finding of acquittal on valid reasons, which were not questionable---Counsel for accused could not point out any serious defect in the investigation, other than certain minor lapses which did not affect the validity of the trial---In absence of any illegality or infirmity in the impugned judgment of the Trial Court, same was maintained.

Muhammad Parvaiz v. The State 2005 SCMR 1038 and Abdul Sattar and others v. The State 2002 PCr.LJ 51 rel.

Arif Rasool for Appellant.

Miss Neelam A. Khan for the State.

Date of hearing: 4th September, 2006.

PCRLJ 2007 PESHAWAR HIGH COURT 483 #

2007 P Cr. L J 483

[Peshawar]

Before Shah Jehan Khan and Ijaz-al-Hassan Khan, JJ

GUL AMIN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No. 173 of 2005, decided on 27th September, 2006.

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

----S. 9(c)---Appreciation of evidence---Prosecution primarily was supposed to establish guilt against accused beyond shadow of reasonable doubt by bringing trustworthy, convincing and cogent evidence for the purpose of awarding conviction---To inflict capital punishment of death or that of life imprisonment, prosecution was under statutory obligation to furnish the first degree of proof through high quality evidence reasonably creating nexus of accused with the commission of the crime.

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

----S. 9(c)---Appreciation of evidence---Benefit of doubt---No credible evidence was on record to connect accused with the commission of offence---Prosecution even had failed to disclose any connection of accused either with the motorcar from which contraband charas and opium were recovered, either as its owner or driver or in any other capacity or with the ownership of contraband charas and opium, which were recovered from its dicky and foot mats of the car---Where contraband material was found lying concealed in a vehicle in a manner that it was not discoverable from inspection of the vehicle and it was necessary to have special knowledge about its concealment to recover it, in such cases mere presence of a person in the vehicle could not make him liable for conscious possession of such contraband articles---In such cases, it was necessary for prosecution to further show that presence of contraband material was within his knowledge or that he had such a connection with the vehicle as amounting to his conscious possession of such contraband articles lying concealed in the vehicle and it could not be said on basis of evidence on record that prosecution succeeded in establishing any connection between accused and contraband material recovered from motorcar in question---Investigating Agency had appeared to have acted with ulterior motive to the extent of real accused---Prosecution had not been able to establish its case against accused beyond shadow of reasonable doubt---Judgment of the Trial Court, was not based on proper, just and legal appreciation of evidence on record and prosecution case was doubtful in nature---Accused in circumstances was entitled to acquittal---Impugned judgment of the Trial Court was set aside with the direction that accused be released from jail.

Nek Muhammad and another v. State PLD 1995 SC 516 and Zahoor Ahmad Awan and another v. The State 1997 SCMR 543 ref.

Noor Alam Khan for Appellant.

Salahuddin Khan, D.A.-G. for the State.

Date of hearing: 27th September, 2006.

PCRLJ 2007 PESHAWAR HIGH COURT 506 #

2007 P Cr. L J 506

[Peshawar]

Before Ijaz-ul-Hassan Khan and Muhammad Raza Khan, JJ

JAVAID SHAH----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.439 and Criminal Revision No.123 of 2004, decided on 21st March, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Accused stood directly nominated in the promptly lodged report for commission of crime---Medical evidence had fully corroborated prosecution story---Mere fact that no empty had been recovered from the spot and no weapon had been recovered from possession of accused, was not fatal to the prosecution---Complainant, who was sole witness of the occurrence, had faithfully deposed what was seen by him---Said witness being natural, was thoroughly cross-examined by the defence, but his testimony could not be shattered---Witness though closely related to deceased, but his relationship with deceased was no ground for discarding his evidence as testimony of related witness could sustain conviction, if found free from doubt or infirmity---Testimony of a solitary witness by itself, was not a demerit or disqualification as could call for its repudiation, when otherwise it rang true and inspired confidence---Motive had been satisfactorily established through deposition of complainant---Even otherwise absence or weakness of motive, was not a valid ground to disbelieve the eye-witness account, if otherwise it was found independent and confidence inspiring---Evidence of eye-witness if substantially corroborated, would sufficiently establish the charge of murder against accused---Accused remained absconded for more than 14 years and could not explain such long abscondence---Counsel for accused could not point out any serious defect in the investigation, other than certain minor lapses which did not affect the validity of the trial---Prosecution had produced credible and legal evidence to connect accused with the guilt and he had been rightly convicted and sentenced by the Trial Court---Findings of the Trial Court could not be shown to have been given on misreading or non-reading of evidence---Impugned judgment of the Trial Court being based on correct application of law and proper evaluation of evidence, appeal against judgment of the Trial Court, was dismissed and impugned judgment was maintained---Trial Court, however had advanced cogent reasons for taking lenient view in the matter and had declined to award death penalty to accused.

Mst. Mumtaz Begum v. Ghulam Farid and another 2003 SCMR 647; 1971 SCMR 273; 1995 SCMR 1979; 2001 SCMR 117 and PLD 2004 SC 663 ref.

Miss Farhana Marwat for Appellants.

Miss Neelam A. Khan for the State.

Assadullah Khan Chamkani for the Complainant.

Date of hearing: 21st March, 2006.

2007 P Cr. L J 852

[Peshawar]

Before Tariq Parvez Khan C.J. and Raj Muhammad Khan, J

MUSA KHAN----Appellant

Versus

THE STATE and 2 others----Respondents

Criminal Appeal No.409 and Murder Reference No.25 of 2006, decided on 7th March, 2007.

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

----S. 302(b)(c)---Appreciation of evidence---Both eye-witnesses who were son and daughter of deceased, though were declared hostile and were subjected to cross-examination by prosecution had admitted the fact that F.I.R. bore their thumb impression and had been correctly recorded---Said two witnesses had appeared in the court in the absence of accused when he was declared proclaimed offender and also in their statements under S.512, Cr.P.C. they had charged accused---Witnesses had been confronted by prosecution with their such previous statements and they had admitted their statements to be correct---Despite the fact that they were declared hostile, there was evidence with prosecution which could be legally relied upon for recording conviction of accused---Conviction of accused was maintained but instead of S.302(b), P.P.C., he was convicted and sentenced under S.302(c), P.P.C. and was awarded 15 years' R.I.

----Ss. 302(b), 304, 308 & 311---Appreciation of evidence---Accused had killed his real mother in a very cruel manner and for a land dispute---Deceased had sustained six fire-arm entry wounds, but all legal heirs of deceased had compounded the offence and had compromised with accused, except another son of deceased---Conviction having been recorded under S.302(b), P.P.C. as Ta'zir and all legal heirs having not compounded the offence, and there being no evidence of Qisas as required under S.304, P.P.C., accused could not be extended benefit under 5.308 or 311, P.P.C.

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

----Ss. 302(c), 306, 307, 308 & 311---Punishment of Qatl-i-Amd--- Subsection (c) of 5.302, P.P.C. was to be seen and applied independently and not in conjunction with Ss.306/307, read with Ss.308 & 311, P.P.C.---Sections 306 & 307, P.P.C. would cater in a situation where Qatl-i-Amd was not liable to Qisas and cases in which Qisas and Qatl-i-Amd would not be enforced---Said sections of P.P.C. also covered a case where even one Wall of deceased had voluntarily and without duress either. had waived of his right of Qisas or had compounded offence and it would not be a case where Qisas would not be enforced, but that would be a case where offender stood awarded sentence of Qisas---Section 302(c), P.P.C., was to cover other eventualities like, where accused was charged for killing his mother and all legal heirs, except one had compounded the charge---Liability of Qisas would occur only if conviction and sentence was recorded by the Trial Court as such, but where in view of facts and circumstances of the case there was no evidence of Qisas, the Court would come to conclusion that even if there was evidence of Qisas, accused could not have been punished to Qisas, would be a case which empowered the court to resort to S.302(c), P.P.C.

Ishtiaq Ibrahim for Appellant.

Amin-ur-Rehman for the State.

Complainant in person.

Date of hearing: 7th March, 2007.

PCRLJ 2007 PESHAWAR HIGH COURT 1004 #

2007 P Cr. L J 1004

[Peshawar]

Before Muhammad Raza Khan, J

IKRAMULLAH----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.46 of 2007, decided on 27th February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 306 & 308---Bail, refusal of---Deceased was killed by accused by hitting him on the head with a 'Knuckle duster'---Deceased, who was a young boy, died because of irresponsible act of accused and eye-witnesses had confirmed the mode of occurrence---Single accused had been charged and the delay in lodging F.I.R., could neither cause fabrication of evidence nor consultation and counselling for false charge---Tender age of accused, particularly when he was more than 15 years old, would not grant him a licence to kill---Contention that in view of Ss.306 & 308, P.P.C., the Qisas could not tie imposed and that only punishment which could be awarded was Diyat, and thus, bail could not be refused, was repelled, because in addition to Diyat, punishment could also be awarded as Ta'zir---Accused was student of School as well as a student in Dar-ul-Uloom, acquiring religious education, but unrestrained conduct of using an unconventional weapon like 'Knuckle duster' against his fellow student resulting in his death, had spoken volumes about the fabric of society, with such youngsters being in thousands---Knuckle duster was not an ordinary weapon nor it could be acquired conveniently---Possession of such a device by accused indicated pre-planned preparation for commission of offence---While consuming all soft words in favour of accused during the treatment of his bail petition and trial, one should not forget the agony suffered by the victim and his family---Bail petition, was dismissed, in circumstances.

1998 MLD 1994, 2000 MLD 1566 and 2000 MLD 1817 ref.

Atif Ali Jadoon for Petitioner.

Qari Abdul Rasheed, D.A.-G. for the State.

Muhammad Shafiq Awan for the Complainant.

Date of hearing: 27th February, 2007.

PCRLJ 2007 PESHAWAR HIGH COURT 1011 #

2007 P Cr. L J 1011

[Northern Areas Chief Court]

Before Sahib Khan, J

MERAJ HUSSAIN and 3 others----Petitioners

Versus

JUDGE, ANTI-TERRORISM, NORTHERN AREAS, GILGIT and another----Respondents

Writ Petition No.43 of 2005, decided on 22nd June, 2006.

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

----Ss. 2(d), 21-C (5), 21-C (7) (e), 21-C (7) (f), 21-F & 32---Juvenile Justice System. Ordinance (XXII of 2000), S.14---Jurisdiction to try a juvenile offender---Offence of terrorism, can be tried only under the Anti-Terrorism Act, 1997 by the Anti-Terrorism Court irrespective of the, age of offender, which is not relevant for such jurisdiction---"Child" below the age of 18 years can validly be tried by an Anti-Terrorism Court constituted under the Anti-Terrorism Act, 1997---Provisions of Anti-Terrorism Act, 1997, have overriding effect over all other laws including the Juvenile Justice System Ordinance, 2000, provisions of which shall be in addition to and not in derogation of any other law for the time being in force.

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

----S. 324/34---Anti-Terrorism Act (XXVII of 1997), Ss.6/7---Juvenile Justice System Ordinance (XXII of 2000), S.4---Constitution of Pakistan (1973), Art.199---Constitutional petition---Trial of juvenile offenders by Anti-Terrorism Court---Jurisdiction---Later law promulgated by Juvenile Justice System Ordinance, 2000, did not curtail or limit the power of Anti-Terrorism Court pertaining to the trial of a "child", but had further regularized the same, as the said Ordinance would work in addition to and not in derogation of any other law for time being In force---"Child" as defined in Juvenile Justice System Ordinance, 2000, involved in a case of terrorism as defined in Anti-Terrorism Act, 1997, could legitimately be tried by a Court established under Anti-Terrorism Act, 1997, and the provisions contained in Juvenile Justice System Ordinance, 2000, would not affect the trial of a "child" by the Anti-Terrorism Court---Impugned order passed by the Anti-Terrorism Court dismissing the application of accused for their trial by a Juvenile Court, was consequently upheld---Constitutional petition was dismissed accordingly. 2005 MLD 1028 dissented from.

2005 MLD 1028 dissented from.

PLD 2004 Lah. 779 and 2000 PCr.LJ 1418 ref.

Jaffar Shah and Muhammad Issa for Petitioners.

?A.-G. for the State.

Date of hearing; 3rd May, 2006.

PCRLJ 2007 PESHAWAR HIGH COURT 1031 #

2007 P Cr. L J 1031

[Northern Areas Chief Court]

Before Sahib Khan, J

THE STATE (A.N.F.) through Special Prosecutor----Appellant

Versus

PEDAN BAIG----Respondent

Criminal Appeal No.10 of 2005, decided on 17th August, 2006.

Criminal Procedure Code (V of 1898)---

----S. 417---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4---Appeal against acquittal---General public admittedly was present at the spot when 1200 grams of opium was recovered by the police from the accused in the mid of Bazar in broad-daylight, but the Investigating Officer did not bother to associate a single prosecution witness with the recovery proceedings from the locality---Although recovered opium was allegedly weighed in a shop, yet prosecution did not examine the shopkeeper as a witness---All the recovery proceedings were clearly violative of S.103, Cr.P.C. and the same could not be free from doubt---Impugned judgment did not call for interference---Appeal against acquittal of accused was dismissed accordingly.

1992 SCMR 1502 ref.

Sharif Ahmed, Special Prosecutor for the State.

Jamal Khan for Respondent.

Date of hearing: 17th August, 2006.

PCRLJ 2007 PESHAWAR HIGH COURT 1052 #

2007 P Cr. L J 1052

[Northern Areas Court of Appeals]

Before Altaf Hussain and Syed Tahir Ali Shah, JJ

NASRULLAH KHAN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.15 of 2006, decided on 21st November, 2006.

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

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Constitution of Pakistan (1973), Art.185(3)---Bail, grant of---Apparently the entire quantity of "Charas" recovered from accused through different recoveries fell short of the quantity specified in law--Offences attributed to accused did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Pendency of other cases of similar nature against the accused was no ground for withholding bail, as he would be deemed to be innocent till he was convicted by a competent Court---"Charas" was allegedly recovered from accused from three different plastic bags and sample having been separated from the combined recovery of 250 gins., it was not clear whether "Charas" from each plastic bag was sent for chemical examination or not---Said point was yet to be determined by Trial Court---Prima facie, no case of any attempt by the accused to sell "Charas" was made out and applicability of Art.3 of the Prohibition (Enforcement of Hadd) Order, 1979, needed further inquiry---Accused was admitted to bail in circumstances.

1997 MLD 1065 distinguished.

(b) Precedents----

----No authority binds a person or a Court on the point of fact which almost in every case differs from each other.

Malik Haq Nawaz for Petitioner.

Advocate-General for the State.

PCRLJ 2007 PESHAWAR HIGH COURT 1082 #

2007 P Cr. L J 1082

[Northern Areas Chief Court]

Before Sahib Khan, J

AFSAR JAN----Petitioner

Versus

Ch. FAZAL HUSSAIN and another----Respondents

Criminal Miscellaneous No.1 of 2007, decided on 5th March, 2007.

(a) Contempt of Court Act (LXIV of 1976)----

----Ss. 3/4---Contempt of Court---Non-compliance of order of Civil Court---Petition not maintainable---Civil Judge had passed an order directing the defendant to produce certain documents in the Court on the next date---Defendant on the said date excused himself with the plea that required documents were not in his possession---Petitioner had filed the present petition for initiating contempt of Court proceedings against the said defendant for the said disobedience of the order of Civil Court---Validity---Code of Civil Procedure, 1908, being a complete Code provided provisions and mechanism for solution of issues arising during the trial of the suits, appeals, revisions etc.---Said provisions had given powers and jurisdiction to the Courts to resolve the issues and the relief which could be sought and remedy thereof were embodied therein---Noncompliance of any order of Civil Court passed during the trial could be remedied or penalized under the relevant provisions of Civil procedure Code, 1908, and petitioner had already filed such application before the Trial Court, which was pending adjudication---All situations including the one arising in the present case were to be dealt with in accordance with the provisions of C.P.C. including the penal clauses provided therein---If no penal provision was available for certain acts or omissions, then it would be presumed that no person or party could be penalized for such acts or omissions against the wisdom of Legislature---Petitioner could seek relief from the Trial Court under the relevant provisions of C.P.C. subject to availability of provision---Petition was not maintainable and the same was dismissed in limine accordingly.

PLD 1955 FC 98; PLD 1956 W.P. (Kar.) 288 and 1988 CLC 778 ref.

(b) Civil procedure Code (V of 1908)---

----Preamble---Scheme, extent and scope of C.P.C.---Code of Civil Procedure, 1908, is a complete Code providing provisions and mechanism for solution of issues arising during the' trial of the suits, appeals, revisions etc.---Said provisions confer powers and jurisdiction on the Courts, relief which can be sought and remedy thereof are embodied therein---All situations shall be dealt with in accordance with the provisions of C.P.C. including the penal clauses like O.IX, R.6, O.XVII, R.3, O.XXXIX, R.2(3) etc.---In case there exists no penal provision for certain acts or omissions in the Code, it is presumed that no person or party can be penalized for such acts or omissions against the wisdom of Legislature.

Asadullah Khan and Amjad Hussain for Petitioner.

Respondent No.1 through Attorney.

Respondent No.2 in person with Ali Nazar and Manzoor Ahmed.

Date of hearing: 5th March, 2007.

PCRLJ 2007 PESHAWAR HIGH COURT 1092 #

2007 P Cr. L J 1092

[Northern Areas Chief Court]

Before Sahib Khan, J

MURAD ALI----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.100 of 2006, decided on 6th December, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/114/109/396/452/401---Anti-Terrorism Act (XXVII of 1997), Ss.6/7---Bail on medical grounds, refusal of---Accused was suffering from "C.A. Thyroid" disease---Said disease being not manageable in District Headquarter Hospital, medical authorities had referred the accused to another hospital out of city for treatment---Trial of the case had concluded, but judgment could not be passed due to non-availability of the Judge,. Anti-Terrorism Court in the area---Bail at such juncture was not allowed to the accused by the Chief Court, as the same was likely to influence the fair adjudication of the case---Prosecution was, however, directed to shift the accused to the hospital as advised under strict escort and protection within a week---Bail application was dismissed accordingly.

1997 PCr.LJ 1497; PLD 1995 SC 38 and 1995 PCr.LJ 1613 ref.

Syed Jaffar Shah for Petitioner.

Advocate-General for the State.

Malik Haq Nawaz and Jamal Khan for the Complainant.

Date of hearing; 6th December, 2006.

PCRLJ 2007 PESHAWAR HIGH COURT 1113 #

2007 P Cr. L J 1113

[Northern Areas Court of Appeals]

Before Qazi Ehsanullah Qureshi, Chairman and Syed Tahir Ali Shah, Member

SAHIB ZADA JEHANGIR---Petitioner

Versus

THE STATE through A.N.F.----Respondent

Criminal Miscellaneous No.1 of 2007, decided on 19th March, 2007.

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---Points agitated by the counsel for accused regarding recovery and quantity of narcotics etc., required thorough scrutiny by the Trial Court---Trial Court was supposed to sift the grain from the chaff and thrash out the illegalities/anomalies and discrepancies on the part of prosecution if any---When the Court was of opinion that in presence of available record, there was little doubt that the offence was not punishable :,with death, imprisonment for life or ten years and there was sufficient scope for further inquiry, accused could be released on bail as in the circumstances of the case it would become a fit case for further inquiry---Merit of case need not be discussed lest the same might prejudice/influence the mind of Trial Court---Bail was allowed to accused.

NLR 2002 Criminal 22-5-2003 (sic); (sic) SCMR 881; PLD 1988 SC (AJ&K) 14; 2002 PCr.LJ 1680; 2001 SCMR 36 and 1980 SCMR 2003 rel.

Asadullah Khan for Petitioner.

Sharif Ahmed for A.N.F.

PCRLJ 2007 PESHAWAR HIGH COURT 1173 #

2007 P Cr. L J 1173

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

MAHMOOD AHMAD and others----Appellants

Versus

THE STATE and others----Respondents

Criminal Appeals Nos.15, 45 and Reference No.82 of 2005, decided on 9th March, 2007.

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

----Ss. 302, 324, 337 & 452---Appreciation of evidence---Statement of one of the prosecution witnesses had fully been corroborated by the evidence of other three eye-witnesses---One of the prosecution witnesses who was 10/11 years old, was son of accused; his statement was clear, consistent and confidence-inspiring and despite lengthy cross-examination it could not be shattered---Said witness, despite being minor, was found competent and quite capable of stating facts of the occurrence, and he was natural witness of the occurrence who was present at the time of incident and witnessed the occurrence---Two prosecution witnesses were injured witnesses---Time of occurrence, presence of prosecution witnesses along with deceased, presence of accused and death of deceased had not been disputed by the defence---Right of self-defence would extend to accused only where the assault was such as could reasonably cause apprehension inter alia that death would otherwise be the consequence of such assault---In the present case, alleged blows of Sota caused on accused by prosecution witness, were not by themselves sufficient 'to bestow right of self-defence or to act under grave and sudden provocation---Accused, in circumstances was not justified to take the life of his wife on the plea of self-defence---Accused did not raise the plea of self-defence during the course of investigation; also failed to produce any evidence in defence and did not level any allegation of dishonest investigation against Investigating Officer---No question arose about alleged immoral attitude of deceased, who was ex-wife of accused---Mere suspicion of accused that deceased had been opening her shop in the dark hours of night for someone, was not sufficiently grave and sudden for provocation to cause her death---Nature of attack by repeated blows or Chhuri to deceased, was sufficient for determining intention of accused---Accused gave blows of dagger in a merciless and brutal manner to an unarmed woman who was not able to offer any resistance on account of which she succumbed to the injuries on her way to hospital---Plea of self-defence or grave and sudden provocation or loss of self-control raised by accused, could not be believed---Counsel for defence had contended that injuries of accused were not explained by prosecution and were withheld not only in F.I.R., but also by eye-witnesses---F.I.R., was not a detailed document, if any incident was not specifically mentioned in F.I.R., that would not demolish prosecution story, if same otherwise appeared to be plausible and was supported by reliable evidence---Eye-witnesses though were closely related to complainant, but their mere relationship was not by itself sufficient to discard their evidence when their evidence was confidence-inspiring---Prosecution was not bound to produce all witnesses cited in the calendar of challan, as it was the quality of evidence and not quantity which mattered---Both prosecution witnesses had testified recovery of blood-stained clothes of deceased and prosecution witnesses and recovery of `Danda'---Report of Chemical Examiner had shown that clothes of deceased and dagger taken into possession at the instance of accused were stained with blood---Motive of prosecution which stood proved, had supported prosecution version---Accused having acted in a callous and brutal manner and inflicted repeated injuries with dagger to deceased in presence of her minor son just for the sake of greed and covetousness of property, normal penalty of death as Qisas could not be reduced and was maintained and sentence of Qisas as death was confirmed.?

PLD 1994 Lah. 193; 1994 SCMR 1928; 2003 SCMR 459; 2001 SCR 204; NLR 2001 39(sic); 2002 MLD (Sh.C.AJK) 366; 2004 MLD 1797; 2003 SCMR 189; 2003 YLR 2926; 2004 PCr.LJ 1518; 2005 SCMR 272-417-523; 2005 PCr.LJ (Sh.C.AJK) 226; 2005 PCr.LJ 464; 2005 PCr.LJ 502; 2005 YLR (SC AJK) 584; 2006 PCR 170; Muhammad Nasrullah v. The State 2003 SCMR 189; Naik Muhammad Yaqoob v. The State 2004 PCr.LJ 1518; Muhammad Khalil v. The State 1992 SCR 249; The State v. Rab Nawaz PLD 1974 SC 87; Talib Hussain v. Fazal Hussain PLD 1976 SC 518; Muhammad Iqbal's case 1992 SCMR 1928; Manzoor Hussain's case 2003 SCMR 459; Liaquat Ali and 2 others' case PLD 1994 Lah. 193; The State through Haji Mithu Khan and others v. Muhammad Sabir alias Sabri and 5 others 2005 PCr.LJ 464; Muhammad Younis v. The State 2005 PCr.LJ 502; Ibrar Hussain Shah v. The State 1992 SCR 294; Abdul Rasheed and 3 others v. Abdul Ghaffar and 5 others 2001 PCr.LJ 524; Wilayat Khan's case PLD 1985 SC (AJ&K) 41; Mst. Farooq Bibi's case 1999 CLC 1358; Abdul Latif's case 2004 YLR 1663; 2001 SCMR 726; Iftikhar Ahmad's case 2005 SCMR 272 and Asim's case 2005 SCMR 417 ref.

(b) Criminal trial---

---Appreciation of evidence---Prosecution was not bound to produce all witnesses cited in the calendar of challan, defence could avail opportunity of producing those witnesses, if in its opinion they would not support prosecution version---Quality of evidence and not quantity which mattered---Object could be achieved by recording evidence of even one witness, if it was trustworthy.?

2005 YLR SC (AJ&K) 584; Mazhar Ali v. The State 2005 SCMR 523 and Nawaz and another's case 2003 YLR 2926 ref.

---Criminal cases---Principles laid down in criminal cases, were always founded on facts and circumstances of each case and could not be loosely applied in an omnibus manner.?

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

---S. 302(b)----Qatl-e-Amd---Normal penalty---If the charge of Qatl-e-Amd was proved, normal penalty under law was death and exceptional circumstances must be shown to exist for taking a lenient view and for awarding lesser penalty.

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

----S. 154---First Information Report was not a detailed document, if any incident was not specifically mentioned therein, that would not demolish prosecution story, if the same otherwise appeared to be plausible and was supported by reliable evidence.?

1992 SCR 294 ref.

Sardar Iftikhar Ahmad for Appellant.

Sardar Muhammad Azeem Zia, Addl. A.-G. for the State.

Sardar Ejaz Khan for the Complainant.

Date of hearing: 6th March, 2007.

PCRLJ 2007 PESHAWAR HIGH COURT 1288 #

2007 P Cr. L J 1288

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

HUKAM KHAN----Appellant

Versus

SHAKAR and another----Respondents

Criminal Appeal No.336 of 2006, decided on 31st October, 2006.

Criminal Procedure Code (V of 1898)---

----S. 417---Penal Code (XLV of 1860), Ss.302, 324 & 34---Appeal against acquittal---Inordinate delay in recording F.I.R. had not reasonably been explained---Such undue, unreasonable and unexplained delay in filing F.I.R. would lead to suspicion and reflection on the truth of prosecution case---No doubt, it was true that delay in lodging of F.I.R. was not always fatal to a case, but prevalent circumstances were to be kept in mind and then its effect was to be assessed in the present case---In the present case, delay having not been explained by the prosecution, a reasonable inference would be that respondent/accused had no hand in the commission of crime and he was falsely implicated in the case---Medical evidence, by itself would not establish either the identity or the complicity of accused in the crime; it was only when involvement of accused in the crime was established through other evidence beyond reasonable doubt that further corroboration could be sought with the help of medical evidence---Medical evidence could at best be used to support the ocular testimony or any other incriminatory evidence of the type and for no other purpose---Ocular testimony in the case having been found neither confidence-inspiring nor having intrinsic worth, same could not be used to support the same---Mere absconsion of accused, was not conclusive proof of guilt of accused; it was only a suspicious circumstance against accused that he was found guilty of offence and suspicions could not take place of proof---Value of abscondence, depended on the fact of each case---When an 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 would not interfere, unless impugned order was arbitrary, capricious, fanciful and against the record---Finding of the Trial Court could not be disturbed or interfered with unless record would show that there was a high degree of incredibility in the evidence of prosecution witnesses---Order of acquittal would create double presumption of innocence in favour of accused---Required degree of evidence to upset the double presumption of innocence in favour of accused was not available in the case---Finding of acquittal arrived at by the Trial Court was not open to interference, in circumstances.

Muhammad Asghar v. State PLD 1994 SC 301; Ghulam Sikandar v. Mamraz Khan PLD 1985 SC 11 and Munawar Shah v. Liaqat Hussain 2002 SCMR 261 ref.

Sahibzada Asadullah for Appellant.

PCRLJ 2007 PESHAWAR HIGH COURT 1297 #

2007 P Cr. L J 1297

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

Haji FARUKH SAIR----Petitioner

Versus

INAYAT ALI SHAH and another----Respondents

Criminal Revision No.206 of 2006, heard on 27th April, 2007.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 4---Criminal Procedure Code (V of 1898), S.439--Dispossession from property---Appreciation of evidence---Grievance of petitioner was that respondents had interfered in the possession of petitioner over two Kanals of disputed property, but matter was subsequently patched up and petitioner was put back in possession---Inquiry report revealed that during the inquiry proceedings, compromise was effected between the parties on the spot---Complaint did not attract the penal provisions of Illegal Dispossession Act, 2005---Dispute between parties was of civil nature---Both the parties were co-sharers in the disputed property and petitioner was not actually dispossessed from the disputed property, respondents allegedly had just interfered with his possession.

Mir Zafarullah Khan Jamali v. The State through Superintendent of Police Anti-Corruption Establishment Balochistan, Quetta PLD 2001 Quetta 10; Abdul Latif v. Inspector-General, Police and others 1999 PCr.LJ 1357; Muhammad Younis v. Shahid Cheema and 2 others 2006 PCr.LJ 636 and Anwar Ali Khan and others v. Wahid Bux and others 1991 SCMR 1608 rel.

Subhanullah for Petitioner.

Ziauddin Siddiqui for the State.

Respondents in person.

Date of hearing: 27th April, 2007.

PCRLJ 2007 PESHAWAR HIGH COURT 1306 #

2007 P Cr. L J 1306

[Northern Areas Chief Court]

Before Muzaffar Ali, J

THE STATE through A.N.F. Gilgit----Petitioner

Versus

CHIDI and 7 others----Respondents

Criminal Revision No.9 of 2006, decided on 21st September, 2006.

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

. ----Ss. 179 & 180---Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 14---Jurisdiction of criminal court in inquiries and trial---Anti-Narcotic Force Police arrested a lady, a citizen of China and lodged F.I.R. against her alleging recovery of 800 grains of heroin from her possession which allegedly was being smuggled to China---During interrogation said lady stated that she had been supplied recovered heroin by respondents at Islamabad---Police, with permission from Special Court proceeded to Islamabad along with accused lady and arrested respondents and brought them to Gilgit---Gilgit police alleged that during the raid 2000 'grains heroin was recovered from possession of said respondents at Islamabad---Police, instead of lodging a separate F.I.R. against the respondents at police station Islamabad, wanted respondents to be charged for said offence too in Special Court, Gilgit under same F.I.R. by claiming benefit of S.179, Cr.P.C.---Special Judge Gilgit framed charge against respondent under the F.I.R. and also discharged respondents holding that no evidence was available on the record of the case against respondents---Validity---Conclusion of Special Judge Gilgit was that neither alleged 2000 grains of heroin had been recovered from the possession of respondents within his jurisdiction nor respondents had supplied 800 grains of heroin to accused lady allegedly recovered from her possession at Gilgit---Recovery of 2000 grains of heroin from possession of respondents in Islamabad, was an independent offence under the law, it was neither an act done nor consequence ensued therefrom, together constituted offence under the F.I.R. registered at Gilgit---Offence was also not an offence by reason of its relation to offence under F.I.R. at Gilgit, Offence was a complete and an independent offence committed in Islamabad---Special Judge Gilgit had rightly opined that respondents could not be charged for the said offence under F.I.R. at Gilgit by extending benefit either of Ss.179 or 180, Cr.P.C.---Said offence could be registered separately, in Islamabad, if so advised---So far as alleged offence of respondents to supply 800-grains of heroin to accused lady was concerned, same prima facie fell under S.14 of Control of Narcotic Substances Act, 1997 and also would come within the ambit of Ss.179 & 180, Cr.P.C. and it was an abetment if proved---Special Court at Gilgit had jurisdiction to take cognizance of said case against respondents---Special Judge however, was functus officio to discharge respondents after holding the matter beyond his jurisdiction---Special Court, could discharge respondents even before framing the charge against them by exercising powers under S.265-K, Cr.P.C., but after taking cognizance of same, holding the same to be in its jurisdiction---Special Judge had jurisdiction under Ss.179 & 180, Cr.P.C. to take cognizance of alleged offence of abetment under S.14 of Control of Narcotic Substances Act, 1997.

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

----Ss. 179 & 180---Jurisdiction of criminal Court holding inquiry and trial---Prerequisite of application of S.179, Cr.P.C.---Requirements of application of S.179, Cr.P.C. were that said section would apply when the act done and the consequences ensuing therefrom jointly constituted the offence; that such offence could be inquired into or tried by a court within the limits of whose jurisdiction any such act had been done or any such consequence ensued; and that said section 179, Cr.P.C. would not apply when the act or omission was a complete offence itself irrespective of any consequence, which had ensued---Prerequisite of S.180, Cr.P.C. were that an act committed becomes an offence by reason of its relation to any other act which was also an offence or which would be an offence, if the doer was capable of committing an offence and that a charge of first offence could be tried or inquired by a court within the local limits or whose jurisdiction, either act was done---Principles.

Sharif Ahmad Legal Advisor for A.N.F.

Amjad Hussain for Respondents.

Muhammad Yaqub Khan, A.-G. as amicus curiae.

Date of hearing: 20th September, 2006.

PCRLJ 2007 PESHAWAR HIGH COURT 1371 #

2007 P Cr. L J 1371

[Peshawar]

Before Tariq Parvez Khan and Muhammad Qaim Jan Khan, JJ

MIRZA KHAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.46 and Criminal Revision No.8 of 1998, decided on 6th June, 2001.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Role of effective firing though had been attributed to accused, but in view of apparent dishonest investigation, which was not only inconsistent inter se but was reflected even in the first document of prosecution, namely Murasala---Statements of two witnesses, also ran counter to document of the file and it would be hard, in circumstances to believe that prosecution had proved its case---Major contradictions were found in the statements of complainant, the police and even doctor's report---Presence of eye-witnesses and motive were also doubtful---Conviction and sentence recorded by Trial Court against accused were set aside, he was acquitted and released, in circumstances.

Dost Muhammad Khan for Appellant.

Shaukat Hayat Khan Khakwani, Deputy Advocate-General for the State.

Muhammad Farid Khan for the Complainant.

Date of hearing: 6th June, 2001.

PCRLJ 2007 PESHAWAR HIGH COURT 1393 #

2007 P Cr. L J 1393

[Peshawar]

Before Dost Muhammad Khan, J

FARMAN ULLAH----Appellant

Versus

THE STATE and others----Respondents

Criminal Appeals Nos.242 and 241 of 2007, decided on 1st June, 2007.

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

----Ss. 279, 320, 337-G & '427---Appreciation of evidence---Acquitted accused who was driving the Tractor, applied, emergency brake and halted Tractor in the middle of Highway,- while Pick-up driven by Complainant collided with the Tractor from behind with the result two persons in the Pick-up died and others including complainant got injured and Pick-up was also substantially damaged in the accident---Case was registered by complainant against acquitted accused/driver of the Tractor for offences under Ss.279, 320, 337-G, 427, P.R.C. and case- was investigated---D.S.P. Investigation, however basing his opinion on general information, came to the conclusion that it was complainant who was rashly and negligently driving the Pick-up as a result of which accident occurred---Such information based on rumours and licence of complainant was made ground for substituting complainant as an accused in the case---Complainant was placed in the Column of accused without the permission and sanction of Illaqa Magistrate---All injured witnesses appeared and categorically charged acquitted accused responsible for tragic incident, but despite that accused was acquitted, and complainant, who was made accused, was convicted and sentenced---Validity---Trial Court did not follow the law on the subject and failed to observe due care and caution as to how the complainant was made accused without proper permission of Illaqa Magistrate---Entire evidence on record showed that it was acquitted accused who was unequivocally charged for causing accident, but despite that direct evidence, accused was acquitted---Approach of the Trial Court, did not appear to be judicious one and not in accord with the settled principle of justice---Both deceased and all injured were the family members, of the complainant, while co-accused, the Tractor Driver, did not receive even a scratch on his person, nor his Tractor was damaged to the extent like the Pick-up of complainant---Tractor driven by acquitted accused at relevant time was in the middle of Highway---Such fact by itself would amount to negligent driving of acquitted accused---Entire proceedings/trial held in the case, .was based on an approach having no legal sanction---On-that score alone the illegality committed, had vitiated the entire proceedings/trial--?Allowing appeal, complainant, who was made accused in the case, was acquitted of all charges levelled against him and he was set free.

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

----Ss. 279 & 320---Qatl-i-Khata by rash or negligent driving---Appreciation of evidence---To constitute offences under Ss.279 and 320, P.P.C. it was necessary for the prosecution to prove that besides over-speeding, the driver was also guilty of driving rashly and negligently---Court of law in cases of accident in case of collision between two vehicles, had to determine many factors because mere high speed, could not be made a ground for presumption that the driver was responsible for the accident, unless and until it was established in a reasonable manner that besides overspeeding, the driver of the vehicle was found rash and negligent while driving it---Court, at the same time, had to see the contributory negligence of the driver of the second vehicle as well.

Terence Authority D Casta v. The State 1969 PCr.LJ 1228; Abdul Ghani v. The State 1975 PCr.LJ 515; Muhammad Afzal v. The State 1975 PCr.LJ 1353; Muhammad Bakhsh v. The State 1976 PCr.LJ 405 and Muhammad Akhtar v. The State 1980 PCr.LJ 103 rel.

---- No one would be construed into a crime in the absence of legally admissible evidence---Judicial verdict could not be based on surmises and conjectures and even high presumption.

Mian Muhammad Latif v. The State PLD 1966 SC 201 rel.

?Sohail Akhtar for Appellant.

?Aminur Rehman for the State.

Respondent No.4 and 6 in person with L.Rs. of deceased.

?Date of hearing: 1st June, 2007.

PCRLJ 2007 PESHAWAR HIGH COURT 1509 #

2007 P Cr. L J 1509

[Peshawar]

Before Talaat Qayum Qureshi, J

SHER MUHAMMAD----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.674 of 2007, heard on 9th July, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 427 & 34---Bail, grant of---Further inquiry---Single injury found on the left arm near wrist of victim, was not on the vital part of the body, but three persons were charged by the complainant for firing at him---No specific role whatsoever was assigned and at that stage it could not be determined as to with whose firing sole injury was caused---Cause of the sole injury being not ascertainable, question as to whether accused shared common intention and had intended to kill complainant, required further inquiry---No strong reasons existed to withhold the concession of bail---Contention of prosecution was that accused having remained absconder for 50 days, he was not entitled to bail---Proceedings under S.87, Cr.P.C. were initiated in which notice was given to accused as well as co-accused to be present before Investigating Officer---Accused surrendered was arrested twelve days after initiation of proceedings under S.87, Cr.P.C. and on the same day he was produced before Judicial Magistrate for physical remand---No abscondence at all took place, in circumstances---Accused deserved to be released on bail.

Abdul Latif Afridi for Petitioner.

Ubaidullah Anwar, Addl. A.-G. for the State.

Sadullah Khan for the Complainant.

Date of hearing: 9th July, 2007.

PCRLJ 2007 PESHAWAR HIGH COURT 1638 #

2007 P Cr. L J 1638

[Northern Areas Court of Appeals]

Before Syed Tahir Ali Shah, J

DEEDAR ALI----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous Petition No.14 of 2006, decided on 2nd May, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Bail, refusal of---Bail granted to accused by Trial Court had been cancelled by Chief Court---Bail facility was extended to the accused on the score of further inquiry as two eye-witnesses had resiled from their earlier statements and were declared hostile---Prosecution witnesses, besides said two eye-witnesses; were still to be examined by Trial Court---Comments on evidentiary value of resiled statements of prosecution witnesses. being one of deeper appreciation, was avoided at bail stage lest it should prejudice the judicial mind of Trial Court---Accused- being involved in a heinous offence falling within the prohibitory clause of S.497(1), Cr.P.C., had no case for interference in the .findings of .Chief Court---Leave to appeal was refused.

2006 PCr.LJ 1671 and 2004 MLD 1337 ref.

1995 SCMR 1242 rel.

Syed Jaffar Shah for Petitioner.

A.-G. for the State.

PCRLJ 2007 PESHAWAR HIGH COURT 1667 #

2007 P Cr. L J 1667

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

BAHADUR SAID----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.668 of 2007, decided on 16th July, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324/37/447-F(iii)/34---Bail, grant of---Injury on non-vital part---Role attributed to accused was causing fire-arm injury to complainant on right leg, below right knee joint with kalashnikov---Petitioner was in jail ever since his arrest on 9-4-2007---Investigation of the case was almost complete and challan was likely to be submitted in court in near future---Injury attributed to accused was on non-vital part of the body of complainant and no fracture or dislocation of the bone was caused and it was to be seen during trial whether accused intended to kill the complainant---Act of accused, prima facie, showed lack of his intention to cause Qatl-i-Amd---Question of applicability of S.324, P.P.C. was to be determined at trial after examination of complainant and prosecution witnesses---Bail was granted in circumstances.

Muhammad Akram v. The State 1996 PCr.LJ 1881; Shabbir and another v. The State 1997 PCr.LJ 112; Saleem Khan v. The State 1999 PCr.LJ 140 end Muhammad Aslam v. The State 1996 PCr.LJ 1650 ref.

Hidayatullah Mandozai for Petitioner.

Malik Manzoor Hussain for the State.

Complainant in person.

Date of hearing: 16th July, 2007.

PCRLJ 2007 PESHAWAR HIGH COURT 1677 #

2007 P Cr. L J 1677

[Northern Areas Court of Appeal]

Before Justice Qazi Ehsanullah Qureshi, Chairman and Justice Syed Tahir Ali Shah, Member

GULBAR KHAN----Petitioner

Versus

THE STATE----Respondent

Cr. P.L.A. No.1 of 2007, decided on 18th June, 2007.

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

----Ss. 9(c), 20, 21, 22 & 25---Criminal Procedure Code (V of 1898), Ss.103 & 537---Spy information---Opium weighing 1100 grams was recovered on the pointation of accused from the house which belonged to his host---Search warrant under Ss.20, 21 & 22 of Control of Narcotic Substances Act, 1997 was not obtained before conducting the raid---Independent witnesses, though available at scene of occurrence were not associated---Exact quantity of recovered contraband narcotics was dubious---Neither accused appeared as his own witness nor he led any defence evidence---Trial Court awarded accused with punishment of seven years' R.I.---Validity---Sections 20, 21 & 22 of the Act were directory in nature non-compliance of which would not be a ground for holding the conviction bad in the eye of law---Such would merely be an irregularity curable under S.537, Cr.P.C.---In absence of penal consequences non-compliance of Ss.20, 21 & 22 of the Act was not fatal---Contention that police associated no respectable from the locality was repelled as S.25 of Control of Narcotic Substances Act, 1997 has expressly excluded the application of S.103, Cr.P.C. to the cases registered under the Act---Exact quantity of recovered opium was highly doubtful---Severity of punishment under S.9(c) of the Act having direct nexus with the quantity of recovered narcotics, prosecution's duty was therefore, two-fold; firstly to establish guilt of accused for having possession of narcotics; secondly to establish through reliable evidence the particular quantity said to have been recovered---No evidence having been adduced to prove the exact quantity recovered from the accused, sentence prescribed by S.9(c) of Control of Narcotic Substances Act of 1997 could not be awarded.

(b) Words and phrases---

----Word "may" as used in S.20 of Control of Narcotic Substances Act, 1997---Scope---Word "may" in said section has been used with reference to obtaining search warrant to effect search of a house, place, premises etc.

----Police officials being public servants were as good witnesses as arty other private person unless it was proved that they had personal grudge against the culprits.

Mir Ghulam Sarwar for Appellant.

Sharif Ahmed Special Prosecutor for the State.

Date of hearing: 18th June, 2007.

PCRLJ 2007 PESHAWAR HIGH COURT 1885 #

2007 P Cr. L J 1885

[Peshawar]

Before Ijaz-ul-Hassan Khan, J

ALI AKBAR----Petitioner

Versus

THE STATE----Respondent

Criminal Revision No.51 of 2007, decided on 23rd July, 2007.

Criminal Procedure Code (V of 1898)---

----Ss. 512 & 514---Confiscation of bail bond---Proceedings under S.512, Cr.P.C. were initiated during trial against the accused due to his absence and proceedings under S.514, Cr.P.C. were started against the sureties---Both sureties subsequently were released from the liability', whereas, while confiscating the bail bonds of the petitioner who was the verifier of the bail bonds, was directed, to deposit amount of bail bonds within specified period---Validity---Held, was the sureties and not the petitioner/verifier to pay the amount of bond---Petitioner could be liable for any offence for wrong verification of the capacity of the sureties furnishing bond under S.514, Cr.P.C. but he being verifier of the bond did not seem to be covered by S.514, Cr.P.C. so as to be made liable to pay amount equivalent to the amount of bonds, which he verified---Person verifying, could be liable for prosecution, if it turned out that the person so verified by him was not that particular person---Said verification having not been provided for by Criminal Procedure Code, it was not a bond executed under the Code and it would not attract application of S.514, Cr. P.C.---Trial Court, in circumstances had exceeded his authority under provisions of S.514, Cr.P.C. and; had recorded impugned order in a mechanical manner without application of independent judicial mind, which could not be allowed to remain in the field---Impugned order was set aside by the High Court.

Nadir Khan v. The State 1992 PCr.LJ 802; Mumtaz Ahmed v. The State 1999 PCr.LJ 1079 and Abdul Hameed v. The State and another 2004 PCr.LJ 216 rel.

Khalid Rehman for Petitioner.

Muhammad Saeed, Addl. A.-G. for the State.

Date of hearing: 20th July, 2007.

PCRLJ 2007 PESHAWAR HIGH COURT 1909 #

2007 P Cr. L J 1909

[Peshawar]

Before Talaat Qayum Qureshi, J

SAEED GUL----Petitioner

Versus

FALAK NAZ and another----Respondents

Criminal Miscellaneous No.637 of 2007, heard on 9th July, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860); Ss.302 & 324/34---Bail, grant of---Further inquiry---Not a single empty was recovered from the spot where both accused were shown present with fire-arms---Medicolegal report did not fully support case of the prosecution---Co-accused had been declared innocent by the Investigating Officer and his name had been placed in Column No.2---Case of accused, in circumstances, required further inquiry with regard to his presence at the time of occurrence---Motive alleged in the case was blood feud enmity---Accused was admitted to bail, in circumstances.

Sahibzada Assadullah for Petitioner.

Rehmanullah for Respondent No.1.

Alhaj Obaidullah Anwar, Addl. A.-.G. for the State.

Date of hearing: 9th July, 2007.

PCRLJ 2007 PESHAWAR HIGH COURT 1945 #

2007 P Cr. L J 1945

[Northern Areas Chief' Court]

Before Sahib Khan, J

[Quetta]

Before Muhammad Nadir Khan, J

AZIZ----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.21 of 2006, decided on 3rd July, 2006.

Criminal Procedure Code (V of 1898)---

Shabbir Rajput for Applicant.

PCRLJ 2007 QUETTA HIGH COURT BALOCHISTAN 1577 #

2007 P Cr. L J 1577

[Quetta]

Before Akhtar Zaman Malghani, J

JAMIL AHMED----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.73 of 2006, derided on 23rd February, 2007.

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

Shabir Rajput for Appellant.

Malik Sultan Mehmood, Asstt. A.-G. for the State.

PCRLJ 2007 QUETTA HIGH COURT BALOCHISTAN 1833 #

2007 P Cr. L J 1833

[Quetta]

Before Mehta Kailash Nath Kohli and Muhammad Nadir Khan, JJ

GHULAM RASOOL----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.83 of 2006 and Murder Reference No.20 of 2006, decided on 16th April, 2007.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Accused was convicted and sentenced for committing murder of one female and one male---Accused was sentenced to suffer life imprisonment for murder of female and for murder of male he was sentenced to death---No direct evidence was available to implicate accused in the case of murder of female---Trial Court, however, had relied on circumstantial and indirect evidence while convicting him for imprisonment of life---No circumstantial evidence was available on record to connect accused with .murder of female except that dead-body of said deceased was taken to hospital where her vaginal swabs were taken by Staff/Nurse---Report of swabs were not found to be contaminated with semen of male deceased---Assistant Advocate-General had conceded that no evidence was on record to .connect accused with commission of murder of female deceased---Entire record did not connect accused, either directly or indirectly with the said crime---Statements of two prosecution witnesses were recorded regarding murder of male deceased---Supplementary statement was stated to have been given wherein accused was introduced as one of the persons who caught hold of male deceased, while blows of and were caused by absconding accused---Complainant/prosecution witness had received information at his home having registered F.I.R. on the basis of information given by another prosecution witness---Statement of yet another prosecution witness had shown that he was resident of another town---Another prosecution witness was also resident of other town---Prosecution, in circumstances, had failed to establish the guilt of accused beyond shadow of doubt relating to murder of both deceased---Extending benefit of doubt to accused, impugned order of the -Trial Court, was directed to be set aside and accused was acquitted of the charge; he was set at liberty and Murder Reference was answered in negative.

Khalid Javed and another v. The State 2003 SCMR 1419 and Muhammad Rafique Kamboh and another v. The State 1993 PCr.LJ 1403 ref.

Mujeeb Ahmed Hashmi and Noorullah Kakar for Appellant.

Abdul Raheem Mengel, Asstt. A.-G. for the State.

Date of hearing: 5th April, 2007.

PCRLJ 2007 QUETTA HIGH COURT BALOCHISTAN 1891 #

2007 P Cr. L J 1891

[Quetta]

Before Akhtar Zaman Malghani, J

Moulvi TAJ MUHAMMAD and 3 others----Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.316 of 2005, decided on 13th July, 2007.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7---Appreciation of evidence---Parties being previously known to each other, no question of mistaken identity of accused by the witnesses could arise---Relationship of the witnesses with the deceased by itself was not sufficient to term them as interested witnesses, because they had no personal motive to falsely implicate accused in place of real culprits, nor any such motive had been brought on record---Delay of four hours in lodging F. I. R. was normal in circumstances of the case---Seizure of a few crime-empties from the place of occurrence by Investigating. Officer would not mean that testimony of prosecution witnesses about firing by all, the- accused persons was false, nor the same could be discarded on the ground that the said empties had been dispatched along with the crime weapon to the Fire-arm Expert, as such evidence could only provide corroboration to the ocular testimony---Eye-witnesses had fully implicated the accused in the commission of the offence and their evidence was corroborated by medical evidence, which in itself was sufficient to maintain the conviction---Soon after the occurrence all the accused did not surrender to the Authorities and had .remained absconders and any certificate obtained by them showing their presence on the day. of occurrence at other places, was an effort to procure evidence of their alibi, which could not be believed---Plea of alibi taken by accused was false and an afterthought and the same was rejected---Prosecution had successfully proved the case against the accused---Convictions and sentences of accused were upheld in circumstances---Reference was answered accordingly.

2000 SCMR 727; 1996 SCMR 906; PLD 1980 SC 317; 2000 SCMR 1805; Ameenullah v. State PLD 1976 SC 629; Muhammad Ayub v. State PLD 1964 Pesh.288; Azhar Hussain v. State 1983 SCMR 978; PLD 1975 Pesh. 131 and PLD 1976 SC 629 ref.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7---Appreciation of evidence---Interested witness----Connotation---Mere relationship with the deceased is not sufficient in itself to term any witness as interested witness, because interested witness is one, who has motive to falsely implicate the .accused in the commission of offence.

2000 SCMR 727 ref.

----S. 302(b)---Anti-Terrorism "Act (XXVII of 1997), S.7---Appreciation of evidence---Principles---Straightforward and confidence-inspiring evidence of an eye-witness cannot be discarded merely because it is contradictory to the site plan .prepared by Investigating Officer.

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

----S. 302(b)---Anti-Terrorism Act, (XXVII of 1997), S.7---Appreciation of evidence---Site plan is not a substantive piece of evidence and cannot be used to discard the evidence of a witness unless he was confronted with the same.

1996 SCMR 906 ref.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7---Appreciation of evidence--Mere omission of the position of the prosecution witnesses in the site plan cannot per se lead to an inference that they were not present, when their presence at the time of incident at the indicated place is found to be natural.

PLD 1980 SC 317 ref.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7---Appreciation of evidence---Absence of any report of Fire-arm Expert or recovery of crime weapon or empties would not be fatal to the prosecution case, if the charge is otherwise established through other confidence-inspiring evidence including ocular testimony.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7---Appreciation of evidence---Plea of alibi---Burden of proof---Accused raising plea of alibi has to discharge the burden by producing satisfactory, reliable and authenticated evidence that his presence at the place of incident at the relevant time was not possible because of his presence at the relevant time at another place.

2000 SCMR 1805; Ameenullah v. State PLD 1976 SC 629; Muhammad Ayub v. State PLD 1964 Pesh. 288 and Azhar Hussain v. State 1983 SCMR 978 ref.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7---Criminal Procedure Code (V of 1898); S.340(2)---Appreciation of evidence---Plea of alibi---Accused to appear in witness-box to prove such plea---No adverse inference, though can be drawn against an accused person for not appearing in witness-box in disproof of allegations and charge, but if he had taken a specific plea and burden to prove such plea was upon him, then he should appear in witness-box in support of this such plea.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7---Appreciation of evidence--Alibi---Accused after issue of search warrants and proclamation getting certificate of his presence in another District from a Government official who had certified his presence before him on the day of occurrence---Conduct of accused, held, indicative of his knowledge of his involvement in the case and an effort to procure evidence for his alibi.

PLD 1975 Pesh. 131 ref.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7---Appreciation of evidence---Plea bf alibi to be definitely proved---Very easy to set up plea of alibi but not always easy to prove it and it must be definitely proved, in order to suffice for rebuttal of the prosecution case.

PLD 1976 SC 629 ref.

Malik Zahoor Ahmed Shahwani for Appellants.

Qazi Bashir Ahmed for the State.

Date of hearing: 29th June, 2007.

Shariat Court Azad Kashmir

PCRLJ 2007 SHARIAT COURT AZAD KASHMIR 30 #

2007 P Cr. L J 30

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt and Raja Muhammad Ashraf Kiani, JJ

SAWAR KHAN and 2 others----Appellants

Versus

NARGUS SULTANA and another----Respondents

Criminal Appeal No.59 of 2002, decided on 26th October, 2004.

Criminal Procedure Code (V of 1898)---

---S. 417---Penal Code (XLV of 1860), S.302---Azad Jammu and Kashmir Offences Against Property (Enforcement of Hudood) Act, 1985, S.17(4)---Appeal against acquittal---Interference-Scope---Incident was an unseen occurrence and not supported by any eye-witness---Motive of murder also remained unproved as according to the prosecution motive of murder was to take away golden ornaments worn by deceased, but F.I.R. had shown that according to complainant when he found dead body of deceased in the house, she was wearing the golden ornaments---Question of taking away golden ornaments, in circumstances did not arise---Statement of a child witness with regard to sale and purchase of ornaments of deceased, did not render support to prosecution story---Statements of complainant and other prosecution witnesses who were closely related, did not connect accused with commission of offence---One of prosecution witnesses, who belonged to different village had stated that house in question was surrounded by many persons---Said witness being stranger, appeared to have been planted as recovery witness, especially when independent witnesses were available---If independent witnesses were available at relevant time then recovery should have been made in their presence, instead of related witnesses---Delay in making F.I.R. remained unexplained---Such delay had thrown considerable doubt about the genuineness of prosecution case---Prosecution witnesses were inter se related particularly to the complainant and same also suffered from material irregularities and illegalities and same had not been corroborated by any independent or unimpeachable source---No weight could be given to such type of evidence in a case of capital punishment---Acquitted accused enjoyed double presumption of innocence; it was always the duty of prosecution to establish case against accused and till it was done, accused must be presumed to be innocent and when he secured an acquittal order from the Trial Court, Appellate Court would not interfere until it was shown conclusively that inference of guilt was irreversible---Instant case being based upon the circumstantial evidence of prosecution, conviction could only be made when it would exclude all hypothesis of innocence of accused---Order of acquittal of accused passed by the Trial Court being based on sound reasons, would not warrant any interference of High Court.

PLD 1986 SC (AJ&K) 35; 1987 PCr.LJ 1728; PLD 1992 SC (AJ&K) 20; 1995 PCr.LJ 803; 1984 PCr.LJ 1051; PLD 1986 Sh.C. (AJ&K) 1; Shaukat's case 1992 SCR 155; 1994 PCr.LJ 566 and 2000 MLD 518 ref.

Sardar Ghulam Mustafa Khan for Appellants.

Liaquat Hussain Mughal for Respondent No.1.

Sardar Zaheer Babar Chughtai, P.P. for the State.

PCRLJ 2007 SHARIAT COURT AZAD KASHMIR 133 #

2007 P Cr. L J 133

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

TANVEER AHMAD----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.94 and Reference No.93 of 2005, decided on 21st October, 2006.

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

----Ss. 340(2) & 342---Examination of accused under S.342, Cr.P.C. and S.340(2), Cr.P.C.---Object---Right of accused to give evidence on oath in disproof of charges against him-Failure-on the part of the Trial Court to call upon an accused to give evidence on oath and to record his evidence, under S.340(2), Cr.P.C. unless declined by the accused to do so, would render the trial incomplete---Fact that accused was examined by the Trial Court under S.342, Cr.P.C. in the crime, would not make any difference because the purpose of examination of accused under S.342, Cr.P.C. was almost different from his examination under S.340(2), Cr.P.C.---Under S.342, Cr.P.C. explanation of accused was sought about important and material pieces of prosecution evidence appearing against him, while under S.340(2), Cr.P.C. evidence was offered to disprove the case set up by prosecution.

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

----S. 302---Criminal Procedure Code (V of 1898), Ss.340(2), 342 & 537---Appreciation of evidence---Non-compliance with provisions of S.340(2), Cr.P.C. was not curable under S.537, Cr.P.C.---Right of accused to give evidence on oath in disproof of charges against him---Accused had himself opted to give evidence on oath under S.340(2), Cr.P.C., but no opportunity was afforded to him to examine himself---Trial Court, in circumstances had failed to discharge its legal obligation under S.340(2), Cr.P.C., whereunder it had been made incumbent upon the Court to afford an opportunity to an accused to give evidence on oath to disprove the charge against him as an integral part of the Trial of the cases; and the trial would be incomplete without such evidence---Mere question put to accused about defence and innocence while being examined under S.342, Cr.P.C., was not due compliance of the provisions of S.340(2), Cr.P.C. and where the Trial Court failed to call accused under S.340(2), Cr.P.C. to give evidence on oath, illegality committed by the Trial Court was not curable under S.537, Cr.P.C.---In the present case an opportunity having not been afforded to accused to give evidence on oath, trial not only was incomplete; but right of accused to appear as his own witness, had been denied causing serious prejudice to his case---Death sentence passed against accused by the Trial Court was not confirmed---Conviction and sentence awarded to accused were set aside and case was remanded to the Trial Court with direction to record statement of accused again under S.340(2), Cr.P.C. and decide case afresh.

NLR 1993 SCJ 703; Mohtarama Benazir Bhutto, M.N.A. and another v. The State PLD 2000 SC 795; 2005 PCr.LJ 677; Amir Khatoon v. Faiz Ahmad PLD 1991 SC 787; Muhammad Nazir v. The State 1988 PCr.LJ 1958; Mukhtar Ahmad alias Bholi v. The State 1991 MLD 527; Afzal Haider v. The State 1992 MLD 421; Haji alias Muhammad Rafique v. The State 1997 PCr.LJ 1434; Muhammad Usman and 2 others v. The State PLD 1991 FSC 39 and State and others v. Ghulam Abbas and others PLD 1991 FSC 135 ref.

Muhammad Abdul Aziz Chaudhary for convict-appellant.

Muhammad Azam Khan for the Complainant.

Sardar Muhammad Raziq Khan, Additional Advocate-General for the State.

PCRLJ 2007 SHARIAT COURT AZAD KASHMIR 721 #

2007 P Cr. L J 721

[Shariat Court of (AJ&K)]

Before Iftikhar Hussain Butt, J

IMRAN and 3 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.54, 55 and 56, of 2006, decided on 21st December, 2006.

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

----Ss. 302(b), 324, 337-D, 338-D & 34---Appreciation of evidence--Presence of accused at the time of occurrence had been proved--Occurrence had taken place at the same time as was alleged by prosecution and prosecution's version stood proved beyond any shadow of doubt---Style of cross-examination and suggestions put to accused, also had given support to the prosecution case---Time and date of occurrence, were also admitted by defence---Defence had further admitted that deceased and injured prosecution witness had sustained injuries during occurrence---Prosecution witnesses had fully supported prosecution version---Evidence of eye-witnesses was cogent, clear, convincing and coherent, which by itself was sufficient for recording conviction of accused without any further corroboration---Eye-witnesses had been found 'Adil' in purgation, which had made their statements more reliable and worthy of credence---Sufficient corroborating and confirmatory evidence had been produced which had fully supported ocular version---Medical examination report, was also in nature of corroboratory evidence---Recovery of blood-stained clothes of deceased with two signs of cut had fully been proved by prosecution witnesses---Factum of recovery of knife used in occurrence had been supported by independent witness and it had fully been proved that said knife was used as a weapon of offence---F.T.R. though was lodged after seven hours of the occurrence, but said delay did not cast any doubt upon prosecution version because injured who later on died was taken to Military Hospital---Usually civilians were not allowed to make frequent visit to Army Hospitals---Even otherwise accused could not derive any benefit on account of said delay because identity of accused was not doubtful---All prosecution witnesses were not closely related to complainant party, as two of them were independent witnesses and their evidence to the extent of main accused was not only clear, cogent, but was also convincing and reliable---Related witnesses also could not be termed as interested witnesses especially when they had not nursed any grudge or rancor against accused party---Non-recovery of blood-stained earth from the spot, could not be held fatal to prosecution as at the night of occurrence due to heavy rain it could not be collected---Motive had fully been established---Prosecution having proved its case against accused by producing cogent, clear and convincing evidence, he had rightly been convicted and sentenced---In absence of any mitigating circumstances, his death sentence awarded by the Trial Court, was maintained and it was further held that it would be in the interest of justice to enhance the payment of "Arsh" payable by accused upto one-third of the total amount of Diyyat. V

1985 PCr.LJ 1951; PLD 1993 Lah. 195; PLD 1999 Lah. 56; 2000 YLR 1542; 2000 YLR 2601; 2001 YLR 1628; 2004 SCMR 1185; 2006 SCMR 1846; 2006 SCMR 1886; 2006 MLD 1253; 2006 PCr.LJ 1870; 1992 SCR 294; 1993 PCr.LJ 914; 2000 YLR 302; 1999 YLR 1879; 2001 PCr.LJ 524, PLJ 2005 Sh.C. (AJ&K) 96; The State v. Shahnawaz and 2 others 2000 SCR 123; 1997 PCr.LJ 376; PLD 1979 SC 23; PLD 1983 SC (AJ&K) 98, 211; PLD 1988 SC (AJ&K) 134; 1992 SCR 249, 2001, PCr.LJ 524, 2001 SCMR 1111; 2002 SCMR 99; Abdul Aziz v. Muhammad Lal and 2 others 2000 SCR 375; Zarbahadar's case 1978 SCMR 136; Muhammad Rafique's case 1999 SCMR 1208; 2003. YLR 2572 and 2003 YLR 806 ref.

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

---Ss. 302(b), 324, 337-D, 338-D & 34---Appreciation of evidence---Cross-examination---If any part of the statement of a witness was not challenged in the cross-examination, it would be considered to have been admitted by the other party---Statements of prosecution witnesses- could be relied upon against some accused by rejecting against others.?

PLD 1995 SC (AJ&K) 41; 1996 PCr.LJ 1076; 1997 MLD 2013; 1999 CLC 1358; 2004 YLR 1663; 2001 PCr.LJ 524 and 2001 PCr.LJ 524 rel.

----S. 156---Penal Code (XLV of 1860), Ss.302(b), 324, 337-D, 338-D & 34---Investigation---Carelessness and negligence in investigation---Effect---Any carelessness or negligence in investigation, could not be regarded sufficient to demolish prosecution case, if otherwise, offence against accused stood proved in the light of evidence on record.?

SyedK abir Hussain Shah v. State PLD 1984 SC (AJ&K) 82 rel.

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

----Ss. 302, 324, 337-D, 338-D & 34---Appreciation of evidence---Benefit of doubt---Case of co-accused was almost different from case of convicted accused as no specific role had been ascribed to two of the co-accused and infliction of 'Chhuri' blow ascribed to third co-accused on deceased was also doubtful---Detailed scrutiny of evidence on record along with prosecution version put forward in F.I.R. and charge-sheet under S.173, Cr.P.C., had made case of prosecution suspicious and doubtful to the extent of said co-accused---Medical examination report and post-mortem report did not corroborate allegations levelled against co-accused---Prosecution version being inconsistent and self-contradictory to the extent of co-accused, could not be relied upon--Benefit of slightest doubt arising in the case would go in favour of co?-accused---Prosecution had also failed to prove existence of any common intention or pre-arranged plan---Trial Court had fallen in grave error to pass an order of conviction and sentence against co-accused by applying S.34, P.P.C.---Co-accused were entitled to be acquitted of the charge---Section 34, P.P.C., could only be applied in the cases where it was difficult to make a distinction between the individual accused or to prove exactly what action was taken by each accused---No pre-concert or preplan or preparation of co-accused in furtherance of common intention could be proved beyond any shadow of reasonable doubt---Impugned judgment of the Trial Court to the extent of co-accused, was set aside and they were acquitted from the charge by giving them benefit of doubt, accordingly.?

Abdul Khaliq v. The State 2006 SCR 1886 ref.

Tahir Aziz Khan for Appellants.

Mushtaq Ahmed Janjua for the Complainant.

Syed Tayyab Gilani, Asstt. A.-G. for the State.

PCRLJ 2007 SHARIAT COURT AZAD KASHMIR 846 #

2007 P Cr. L J 846

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

MUHAMMAD TARIQ MAHMOOD and others----Appellants

Versus

THE STATE and another----Respondents

Criminal Appeal No.13 of 2005 and Criminal Reference No.47 of 2004, decided on 22nd February, 2007.

Penal Code (XLV of 1860)---

----S. 302---West Pakistan. Arms Ordinance (XX of 1965), S.13---Appreciation of evidence---Complainant and prosecution witnesses, not only were inter se closely related, but they were also closely related to deceased---Complainant party had grudge against accused and was inimical towards him---Was not believable that accused carne at the place of occurrence to commit offence---Allegation that accused had waylaid to kill deceased, was without any substance---Prosecution failed to prove alleged motive, and weapon used for commission of offence was not recovered---Occurrence was not premeditated and nothing was on record to prove that accused intended to kill deceased---Part of prosecution story regarding waylaying was not proved during trial---In view of strong mitigating circumstances in favour of accused, he could not be convicted under S.302(a)(b), P.P.C., but his case fell under S.302(c), P.P.C., which provided imprisonment of either description for a term which could extend to 25 years---Appeal filed by accused against order of conviction under S.13 of West Pakistan Arms Ordinance, 1965 was accepted and he was acquitted of said charge, but he was sentenced to 14 years imprisonment for commission of offence of murder under S.302, P.P.C.

Raja Mazhar Iqbal for Appellant.

Asstt. A.G. for the State.

Ch. Lal Hussain for the Complainant.

PCRLJ 2007 SHARIAT COURT AZAD KASHMIR 868 #

2007 P Cr. L J 868

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

FIYYAZ AHMAD and others----Appellants

Versus

THE STATE and others----Respondents

Criminal Appeals Nos.121 and 118 of 2005, decided on 16th February, 2007.

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

----S. 302---Appreciation of evidence---Report of Chemical Examiner had shown that deceased was administered organophosphorous'---Accused was arrested by the police and remaining quantity of the poison used for the murder of deceased was recovered at his instance through recovery memo.---Alleged recovery was effected five days after arrest of accused from the house of father of accused at the instance of accused in the presence of father of deceased and close friend of complainant party---Alleged recovery of said item was suspicious and was of no consequence---Chemical Examiner who according to the prosecution case prepared reports was not cited as witness and no evidence was available to establish that reports were prepared by any expert appointed by the Government under the law---Trial Court had failed to appreciate facts in a judicial manner---Prosecution story being highly doubtful, was not worth relying---Appeal filed by accused against his conviction and sentence was accepted and accused was acquitted of the charge.

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

----S. 510---Report of Chemical Examiner, Serologist etc.---Procedure---Any report prepared by Chemical Examiner, Serologist or Fire-arms Expert could be used as evidence without recording his statement, but author must be cited as prosecution witness to establish that the report was prepared by him---Section 510 of Cr.P.C. provided that court could, if it considered necessary in the interest of justice, summon and examine the person by whom such report had been made---Wisdom behind the principle was that in case of dispute or a doubt, it was the author alone who could resolve it.

Ch. Muhammad Taj for Appellant (in Criminal Appeal No.121 of 2005) and for Respondent No. 1 (in Criminal Appeal No.118 of 2005).

Muhammad Riaz Alam for Appellant (in Criminal Appeal No.118 of 2005.

Javed Iqbal, Assistant Advocate-General for the State.

PCRLJ 2007 SHARIAT COURT AZAD KASHMIR 886 #

2007 P Cr. L J 886

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

KHADIM HUSSAIN and others----Appellants

Versus

THE STATE and others----Respondents

Criminal Appeal No.4 and 12 of 2005, decided on 22nd February, 2007.

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

----Ss. 302, 324 & 109/34---West Pakistan Arms Ordinance (XX of 1965), S.13---Appreciation of evidence---F.I.R. was a genuine document---Names of accused and eye-witnesses were specifically given in the F.I.R.---Place of occurrence and weapon used for commission of offence were clearly mentioned in promptly lodged F.I.R.---F.I.R. could be used to corroborate the version given by complainant and prosecution witnesses---Eye-witnesses successfully faced the test of cross examination---No inherent infirmity existed in the statements of eyewitnesses---Evidence given by said eye-witnesses, was in consonance with the probabilities and material fitted in with other evidence, more particularly with the medical evidence and circumstances of the case--Number of injuries found at the person of deceased commensurated with the number of fires made by accused and their statements did not suffer from material discrepancies or even contradictions---Recovery of crime empties and weapon of offence was established---Use of weapon for commission of offence was corroborated by post-mortem and Forensic Science Experts report---Eye-witnesses were established to be present in the house of deceased; they were attracted to the spot on hearing the sound of fires---Eye-witnesses, in circumstances, did not see the origin of attack and only witnessed accused firing and causing injuries to the deceased---Deceased, at the time of occurrence, was proved to be present at the place of occurrence and was attacked upon by accused due to rape case of his daughter---Mitigating circumstances, however, existed in favour of accused for lesser penalty inasmuch as the eye-witnesses were present in the house of deceased and were attracted to the spot on hearing the sound of fires, they in circumstances did not see the origin of attack and only saw accused firing and causing injuries to accused---Fact that allegation of rape against nephew of deceased might have provoked accused could not be ruled out---Capital punishment, in circumstances was not warranted and he had rightly been awarded life imprisonment by the court below for the offence under S.302, P.P.C.---Allegation of firing against accused at prosecution witnesses, having not been proved, his conviction under S.324, P.P.C. was not justified, in circumstance and same stood set aside-Appeal filed by accused to the extent of offences under S.302, P.P.C. and S.13 of West Pakistan Arms Ordinance, 1965 was dismissed, sentence of life imprisonment awarded to him was maintained, benefit of S.382-B, Cr.P.C. was also extended to him.

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

----Ss. 302, 324 & 109---Appreciation of evidence---Allegations, such as common intention, instigation and conspiracy, must be proved beyond any doubt to rule, out the possibility of false implication---Mere presence of co-accused, was not sufficient to hold that she shared intention with the principal offender-,-Co-accused was ascribed the role of lighting torch to facilitate main accused and instigate him to fire at prosecution witness, but was given up during trial---Non-production of that witness, created a doubt about the allegation of fire at him by main accused on the instigation of co-accused---In view of close relations between prosecution . witnesses and deceased, possibility could not be ruled out that co-accused had been roped iii the case by complainant and the witnesses on account of prevailing enmity---Trial Court having failed to appreciate that material on record, was not justified to convict co-accused---Accused was acquitted of the charges against her.

Muhammad Ayyub Sabir for Appellants. Asstt.

A.-G. for the State.

Ch. Khalid Rashid for the Complainant.

PCRLJ 2007 SHARIAT COURT AZAD KASHMIR 902 #

2007 P Cr. L J 902

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

NASEER AKBAR and another----Petitioners

Versus

THE STATE and another----Respondents

Criminal Revisions Nos.4 and 5 of 2007, decided on 26th February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 147, 148 & 149---Bail, refusal of---Several accused persons---Principles---While deciding a bail application, any deeper appreciation or detailed scrutiny of evidence was not permissible and tentative assessment of the material was required---One of the petitioners, in the present case, was armed with Kalashnikov, while others with .12 bore guns---Accused persons were also attributed tiring at the deceased, by the prosecution witnesses---Post-mortem report had shown that bullet and pellet injuries were present at the person of deceased---Weapons of offence were recovered from accused persons---If it appeared that several armed accused persons came to attack and participated in the occurrence, the fact that death was caused by the fire made by one of them only, would not entitle the others for grant of bail--Where a clear case of vicarious liability was made out, bail would be refused to all accused persons---Accused persons and others having come armed at the place of occurrence and fired at deceased, was sufficient to connect them with alleged offence--Question that they did not cause fatal injuries, would merit no consideration at bail stage--Trial Court, in circumstances had not committed any error while refusing bail to accused---Petitions being without any substance, were dismissed.

Ch. Muhammad Taj and Muhammad Sharif Tariq for Petitioners (in Criminal Revision Petition No.4 of 2007).

Muhammad Sharif Tariq, for Petitioner (in Criminal Revision No.5 of 2007).

Asstt. A.-G. for the State.

Muhammad Azam Khan for the Complainant.

PCRLJ 2007 SHARIAT COURT AZAD KASHMIR 1657 #

2007 P Cr. L J 1657

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

SULTAN MUBASHAR SAIDEEN and another----Petitioners

Versus

THE STATE----Respondent

Criminal Revision No.73 of 2006, decided on 2nd April, 2007.

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

----Ss. 497 & 498---Bail application---While deciding a bail application, any deeper appreciation or detailed scrutiny of the prosecution evidence was neither permissible nor desirable---Only a bird's eye-view was required for that purpose.

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

----Ss. 302, 324, 337-H(ii), 447 & 34---Appreciation of evidence---Post-mortem report had shown that deceased suffered fire arms injuries and pellets were also recovered from the dead-body during autopsy---Five crime empties of .12-bore gun were seized from the place of occurrence, while weapons were recovered from the residential rooms of accused at their instance---Police party conducted raid to arrest accused after occurrence, and recovered some weapons and intoxicants---Weapons were found licensed while intoxicants were not recovered at the instance of accused and they were acquitted of said charge of intoxicants---Strong prima facie case and sufficient material to connect accused with the alleged offences was available on record---Order passed by the Trial Court, did not warrant any interference as same was recorded keeping in view the facts and law.

Muhammad Azam Khan for the Petitioners.

Muzaffar Ali Zafar, A.A.-G. for the State.

Raja Anam Ullah Khan for the Complainant.

PCRLJ 2007 SHARIAT COURT AZAD KASHMIR 1664 #

2007 P Cr. L J 1664

[Shariat Court (AJ&K)]

Before Sardar M. Ashraf Khan, J

IRFAN SHARIF and another----Appellants

Versus

THE STATE and another----Respondents

Criminal Appeal No.(sic) of 2007, decided on 9th May, 2007.

Criminal procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324---Explosive Act (IV of 1854), S.3---Bail, grant of---Benefit of doubt---Nobody had been nominated in the F.I.R., however Mobile Phone number was alleged to have been used for committing offence---Material collected in that behalf consisted of Mobile number and explosive material---Report under S.173, Cr. P. C. showed that accused had .been arrested on suspicion of having used alleged Mobile Phone---Efforts were, made to trace out the owner of alleged `SIM' of Mobile Phone used for committing offence---Print was procured which reflected the calling and called numbers, but no source of the same from whom said print was procured, was brought on record---Person under whose use said SIM was, recorded his confessional statement in which he had stated that said mobile phone was used by different. persons including his accused brother; it could not therefore, be said with certainty that said SIM was used by accused alone---SIM used for alleged crime was recovered after 12 days of occurrence; it was not possible for accused to keep same as proof of guilt against him---Expert report had revealed that explosive material sent for opinion was unused---No opinion thus could be formed, in circumstances--Deep scrutiny of evidence though was not permissible at the bail stage, but matter could not be decided in vacuum and a tentative assessment of evidence was to be made---Evidence produced in the case, prima facie hinged on suspicions and doubts with regard to the involvement of the guilt or innocence of accused---When the guilt or innocence were equally balanced, it would be fair and just to grant bail, rather to refuse---When the court would come to the conclusion that alleged guilt of accused was not free from doubt, it was just and fair to give the benefit of such doubt by granting bail to accused---Accused was admitted to bail, in circumstances.

Sardar Muhammad Hussain Khan for Appellants.

Sardar Shamshad Khan and Sardar Shahzad Khan for Respondents.

PCRLJ 2007 SHARIAT COURT AZAD KASHMIR 1710 #

2007 P Cr. L J 1710

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

NAVEED HUSSAIN----Petitioner

Versus

RASHID IQBAL----Respondent

Criminal Revision No.38 of 2006, decided on 28th April, 2007.

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

----S. 497(5)---Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood) Ordinance, 1985, S.12---Bail, cancellation of---Revision had been directed against order of District Court of criminal jurisdiction, whereby accused/respondent was granted bail---Plea of petitioner was that respondent/accused hatched a conspiracy and took complainant at the place of occurrence on the motorcycle of main accused---Impugned order had shown that said point was not considered by the Trial Court while deciding bail application of respondent/accused---Shariat Court, in Pacts and circumstances of the case, remanded the matter to the Trial Court, which would hear the arguments on the application for grant of bail afresh and deckle same in accordance with law---Bail order already passed in favour of respondent/accused by the Court below, .however, would remain intact.

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

----Ss. 169, 173 & 190---Investigation of case---Submission of challan---Cognizance of offence by Magistrate---If it appeared to the officer in-charge of the police station or to a police officer making investigation that no sufficient evidence or, reasonable ground was available for suspicion to justify forwarding of accused to a Magistrate or Court; such officer would, if such person was in custody release him on executing a bond to appear as and when required before Magistrate or court empowered to take cognizance of offence on a police report; and to try accused or send him for trial under S. 169, Cr.P.C.--After registration of case in cognizable offences, the police, after investigation, could submit its report under S.173, Cr.P.C. to a Magistrate/court empowered to take cognizance of the offence, which was not binding on the Magistrate or the court---Notwithstanding the recommendations of the Investigating Officer regarding cancellation of case, it would decline to cancel the case and to proceed as provided under S.190, Cr.P.C. and summon accused to face trial---Magistrate or the court had not to agree with the police report blindly and pass the order of discharge of accused in a whimsical and arbitrary manner---Order on such report was an administrative one---When a Magistrate would concur of refuse to agree with such police report his order through administrative in nature, but would have to be passed in a judicial fashion.

----S. 173---Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood) Ordinance, 1985, S.12---Investigation of case---Submission of report---Police in the present case submitted a report for cancellation of case to a Magistrate who was not empowered to lake cognizance of offence under S.12 of Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood) Ordinance, 1985---Section 173, Cr. P. C. had provided that such report could only be submitted before a court or Magistrate empowered to take cognizance of offence---Proceedings taken by the police alter investigation were clearly against provision of law---Magistrate, in a case of disagreeing with the report, could not proceed being incompetent to take cognizance---Proceedings undertaken by the police and order passed by the Magistrate, in circumstances, were illegal and deserved to be set aside.

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

----S. 561-A---Inherent jurisdiction of High Court---Scope---Direction could be issued to the concerned Incharge of investigation for action in law, while exercising jurisdiction under S.561-A, Cr.P.C.---Relevant provisions of law provided that in order to secure the ends of justice or to prevent abuse of the process, High Court had to interfere under its inherent powers---Such mandatory provisions of law were overlooked---Issuance of direction, in circumstances, were justifiable.

Raja Ghazanfar Ali for Petitioner.

Additional Advocate-General for the State.

Ch. Ali Muhammad for non-Petitioner.

PCRLJ 2007 SHARIAT COURT AZAD KASHMIR 1718 #

2007 P Cr. L J 1718

[Shariat Court (AJ&K)]

Before Sardar M. Ashraf Khan, J

SAID MUHAMMAD----Petitioner

Versus

MUHAMMAD AZEEM and 2others----Respondents

Criminal Revision No.57 of 2006, decided on 11th May, 2007.

Criminal Procedure Code (V of 1898)---

----Ss. 161 & 540---Penal Code (XLV of 1860), Ss.302, 324, 337 & 341---Exhibition of statement of deceased recorded under S.161, Cr.P.C. during his life time---Revision had been directed against the order of the Trial Court whereby statement of deceased recorded under S.161, Cr. P. C. during his life tune was refused to be exhibited while recording statement of Investigating Officer---Statement required to be exhibited was part of the record annexed with the report submitted under S.173, Cr. P. C. and same had been cross-examined by the defence---Exhibition of a document was in fact a piece of evidence subject to the cross-examination; it could or could not be accepted by the Trial Court at the time of final judgment, but the exhibition of the swine during proceedings of the case could not be denied simply for the reason that it was not put to the witness at the time of examination-in-chief---Existence of the statement in question had not been challenged---If counsel for petitioner/prosecution, inadvertently did not exhibit the 'said statement, prosecution was introducing a new evidence or by doing so prosecution was trying to fill up any lacuna which would prejudice accused---Re-exainination of any person already examined at any stage of proceedings, if appeared to be essential for. just determination of controversy, same could be recalled, as provided under S.540, Cr.P.C.---Search of truth was the primary duty imposed upon the court for administration of justice and the court could not base its opinion merely on technicalities---Statement required to be exhibited was very much essential for just decision of case---Trial Court was not justified to observe that prosecution wanted to fill up the lacuna---Reason given by the Trial Court was not well-founded because matter. was not of filling up the lacuna or giving any advantage to the parties, but the object was to search the truth and reach at definite conclusion with regard to the guilt or innocence of accused---Contention that benefit arising out of non-exhibition of statement of witness under S.161, Cr.P.C. could be availed by accused only and prosecution was not entitled to get benefit of same, was not well-founded, because the courts were not required to indulge info benefits of one party or the other; but were required under law to look into the evidence available which would enable the court to reach at definite conclusion with regard to the guilt or innocence of accused---Impugned order was set aside and case was remanded with the direction that the Trial Court, after "summoning the witness, re-examine him in accordance with law.

Mirza Muhammad Nisar for Petitioner.

Raja Imtiaz Ahmed for Respondents Nos. 1 and 2.

A.A.-G. for the State.

PCRLJ 2007 SHARIAT COURT AZAD KASHMIR 1725 #

2007 P Cr. L J 1725

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

Mst. KOUSAR PERVEEN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.37 of 2006, decided on 31st March 2007.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Statement of prosecution witness had shown that he did not see accused while committing offence, however, he heard cries of deceased---Story regarding knowledge about commission of offence deposed by complainant was not correct---Recovery of rope, scars and strip of Ativon tablets allegedly used 1'or commission of offence, lent no support to prosecution case as no evidence to prove that those were used in the occurrence was brought on record---Doctor had stated that some blunt weapon was used to kill deceased---Possibility of use of rope for commission of offence, though was not ruled ant, but no definite opinion about the weapon was given---No reasonable explanation regarding delay in preparation of the post-mortem report and lodging F.I.R. was brought on record---Trial Court while convicting accused, had failed to appreciate that alleged motive was not proved---Origin of right and manner of occurrence, were shrouded in mystery---Prosecution story being highly doubtful, was not worth-relying---Accused, was acquitted, in circumstances.

Sardar Abdul Hamid Khan for Appellant.

Additional Advocate-General for the State.

Sardar Shoukat Hayat Khan for the Complainant.

PCRLJ 2007 SHARIAT COURT AZAD KASHMIR 1757 #

2007 P Cr. L J 1757

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

ZAHIR HUSSAIN SHAH and others----Appellants

Versus

SHAH NAWAZ KHAN and others----Respondents

Criminal Appeals Nos.17 and 20 of 1998, decided on 30th June, 1999.

(On appeals from the judgment of the Shariat Court dated 15-10-1998 in Criminal Appeal No.40 of 1996).

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

----S. 417---Penal Code (XLV of 1860), S.302---Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), S.5---Appeal against acquittal---Trial Court convicted and sentenced accused, but Shariat Court vide impugned order acquitted accused and complainant had filed appeal against said acquittal order---Both versions of prosecution and defence, when taken into a juxtaposition and appreciated in their true perspective, version taken by defence seemed to be improbable, concocted and an afterthought for the reason that in their statements under Ss. 242, Cr.P.C., accused never raised a counter-version; similarly in their statements under 5.342, Cr.P.C. accused also failed to take specific counter-version---Presence of eye-witness and accused on place of occurrence, stood admitted by defence---Recovery of blood-stained clay and stone from place of occurrence also suggested that in fact occurrence took place at the same place as alleged by the prosecution---Evidence of eye-witnesses who stood the test of cross-examination had established the fact that occurrence took place in the manner as alleged by prosecution and not as alleged by defence---Prosecution version which seemed to be more probable and plausible, as taken by it right from the day of occurrence and not after a year as was taken by the defence while cross-examining prosecution witnesses---Assertion of defence did not find support from any evidence either led by the prosecution or defence---Explanation furnished by prosecution with regard to delay in lodging F.LR., being satisfactory had been relied upon by the Trial Court and there was no reason to disagree with the same---Shariat Court, had committed an error in dislodging the version of prosecution and the version of alleged belated F.LR.---Identity of accused was never in dispute---Delay in lodging F.LR., in circumstances could not be applied like a rule of limitation as was applied in civil cases---Shariat Court had not relied upon the testimony of eye-witness, who was not found Adil' in purgation, but, his evidence would be believed in case falling outside the ambit ofQisas', particularly so when his presence at the place of occurrence was admitted by prosecution itself---Great caution, however was to be used in appraising his evidence---Factum of recovery was further substantiated by the site plan prepared by Patwari---Another witness of prosecution had fully supported prosecution version with regard to the motive---In view of confirmatory and corroborative evidence, of eye-witnesses so far as accused was concerned, they were telling truth and nothing existed to cast doubt on their testimony---Recovery of crime weapon at the instance of accused and the empty bullet and the round of live bullets found from his revolver along with licence of accused from his home; was further corroborative piece of evidence---Shariat Court, in circumstances had acted illegally in accepting appeal filed by accused against his conviction recalled by the Trial Court---Prosecution had sufficiently brought guilt home to accused, he, in circumstances was found guilty of .the offence of murder of deceased---Appeals filed by complainant/appellant and State against acquittal of accused, were accepted, in circumstances, and impugned judgment of the Shariat Court, was set aside as accused was convicted for committing. offence of murder of deceased liable to `Tazeer' under S.302, P.P.C.. by awarding him sentence of life imprisonment and fine---Co-accused were rightly acquitted.

Bashir Ahmad v. The State 1980 PCr.LJ 251; Khalil Ahmed and others v. The State 1986 PCr.LJ 2728; Muhammad Siddique and 5 others v. The State 1991 PCr.LJ 866 and Ahmad Khan and 2 others v. The State 1991 PCr.LJ 301 rel.

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

---Ss. 242 & 342---Taking counter-version---In absence of raising counter-version by accused in their statements under Ss.242 and 342, Cr.P.C. accused were not debarred from taking any counter-version at the time of cross-examining prosecution witnesses--If defence plea was palpable from the prosecution story itself, accused could not be deprived of taking benefits of said version---If a defence version was taken and same was not proved, prosecution was not absolved of its responsibility to prove case against accused beyond any reasonable doubt---Prosecution, in order to prove its case, had to stand on its own legs and was burdened with the responsibility to prove the case against accused.

----Appreciation of evidence---"Corroboration", meaning of---When a witness was stated to have given false evidence to implicate some innocent persons besides the real culprits, his deposition could not be rejected in toto, when the most of evidence which rang true could be legally relied upon---When ocular evidence was reliable and satisfactory, conviction in law could be recorded on said evidence alone without airy further corroboration---Corroboration of the. statement of interested - witnesses, would not mean that statement of the witnesses was false or untrue, what it really would mean, was that to accept it as a whole true, it was desirable that it should have a confirmatory support---When it was said that statement of a witness needed corroboration to support it, that finding would proceed on the basis that version of prosecution witness was prima facie correct, but by way of precaution it needed corroboration to attain clarity---Corroboration was insisted upon only to satisfy the mind of the court that witness in the circumstances of the case were speaking the truth---What .facts and circumstances were sufficient to satisfy the mind of the court about the truthful nature or otherwise of the testimony of an ocular interested witness, was a question which would vary from case to case and no hard and fast rule could be formulated on the point.

Muhammad Sharif v. The State PLD 1978 SC (AJ&K) 146 and Nazis Ahmed and others v. The State PLD 1962 SC 269 ref.

Sardar Abdul Hameed Khan, Advocate for Appellant (in Appeal No.17 of 1998).

Raja Muhammad Hanif Khan, Advocate for Respondents Nos.l to.3 (in Crirriinal Appeal No.17 of 1998).

Ch. Muhammad Mushtaq, Additional Advocate-General for the State.

Raja Muhammad Hanif Khan for Respondents (in Criminal Appeal No.20 of 1998).

Date of hearing: 2nd and 3rd June, 1999.

PCRLJ 2007 SHARIAT COURT AZAD KASHMIR 1806 #

2007 P Cr. L J 1806

[Shariat Court (AJ&K)]

Before Sardar Muhammad Nawaz Khan, Actg. C.J. and Iftikhar Hussain Butt, J

GHULAM RASOOL and others----Appellants.

Versus

THE STATE and others----Respondents

Criminal. Appeals Nos.71, 67, 69, 70 and Reference No.68 of 2006, decided on 2nd May, 2007.

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

----Ss. 341, 427, 109, 147, 148 & 149---Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (1X of 1974), S.5---Appreciation of evidence---Statement of complainant was consistent and reliable--- Recording of dying declaration of one of the deceased was also admitted on the part of defence---Two of the prosecution witnesses, who were independent., were neither related to the complainant nor had any grudge or rancour against accused party---Statements of said two witnesses had shown that on account of past enmity, accused batched a conspiracy and murdered five innocent persons to take revenge of murder of sons of one of the accused persons---Motive, as set up by the prosecution, had amply been proved, in circumstances---Contention of counsel for accused that prosecution witnesses had failed to specify the weapons by which accused party had fired shots upon five deceased and by whose firing deceased were done to death, was repelled because in such-like cases it was not humanly possible for the prosecution witnesses to specify that who received injuries by the firing of which accused and by which kind of weapon they were done to death---Involvement of two main accused, had amply been proved not only by ocular version of complainant and his brother, but also by other. independent .and impartial witnesses---Prosecution story was further supported by dying declaration of one of deceased, recorded by police officer and testified by complainant and other prosecution witness---Ample medical evidence in the shape of post-mortem reports of deceased, also had provided strong support to prosecution version---Prosecution evidence was coherent and truthful, which by itself, was sufficient to record conviction and sentence of accused without any further corroboration---Site plan and recovery of other articles-had provided sufficient corroboratory evidence---Report of Chemical Examiner had shown that, clay, pieces of glass, seat covers and clothings of deceased were stained with blood---Mere relationship of recovery witnesses with complainant. or deceased was not by itself sufficient to discard their evidence---Dying declaration, not only had been proved on the record, but had been admitted on -the part of defence---Defence had half-heartedly tried to prove plea of alibi of two accused persons, but had miserably failed---Prosecution had established the guilt of. accused persons beyond any shadow of reasonable doubt---Record had amply proved that a premeditated and brutal attack was made on five persons by several accused persons, who perpetrated a gruesome murder in a blatant manner, which was a unique case in the history of Azad Jammu & Kashmir---Trial Court, however overlooked the provisions of 5.35, Cr.P.C. while awarding sentence of fifty years each to four accused persons, because in a case of consecutive sentences, accused could not be sentenced to imprisonment for a longer period than 14 years---Sentences of said. four accused were modified accordingly.

PLD 1967 Kar. 233; 1992 SCMR 196; 1992 SCR 120 and '155; 1992 PCr.LJ 1250; 1996 PCr.LJ 150; 1997 PCr.LJ 730; 1982 SCMR 178; 1983 PCr.LJ 898; PLD 1984 SC (AJ&K) 82; 1987 PCr.LJ 1728; 1991 PCr.LJ 2110; 1992 PCr.LJ 187; 1995 PCr.LJ (SC AJ&K) 789; 803; 1997 PCr.LJ (SC AJ&K) 1865;. 1998 SCR 337; 1999 PCr.LJ 436; 1999 YLR 1755; Ghulam Rasool and another v. State, decided on 28-11-1993 Fateh Shah and 2 others v. The State 1993 PCr.LJ 1036; Muhammad Malik v. The State 1981 PCr.LJ 199; 2001 PCr.LJ 524 and 2000 YLR 2326 ref.

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

----Ss. 341, 427, 109, 147, 148 & 149---Azad Jammu &Kashmir Islamic Penal Laws Enforcement Act (IX of .1974), S.5---Appreciation of evidence---Relationship of eye-witnesses with deceased---Corroboration, requirement of'---When ocular evidence was confidence-inspiring and trustworthy, then mere relationship of eye-witnesses with deceased and their animosity with accused was not sufficient to discard their evidence and in such type of evidence no further corroboration was needed---Court was to sift the grain out of the chaff---When it appeared that witness had implicated some innocent persons besides the real culprits, the whole deposition, could not be ruled out of consideration if main part of evidence rang true on material .points of the case of evidence---Corroboration would not necessarily mean evidence of an independent witness., but anything in the circumstances which tended to satisfy the Court that such interested witness had spoken truth---Corroboration was required to look for supporting circumstances with a view. to eliminate the chances of false implication and' it would not 'require some independent evidence, but anything in the circumstances for the satisfaction of the court that each interested witness had spoken truth.

PLD 1979 SC (AJ&K) 23; The .State v: Shah Nawaz Khan and 2 others 2000 SCR 123 and 1998 SCR 337 ref.

Sardar Muhammad Hussain Khan and Sardar Shamshad Khan for Appellants.

Sardar Abdul Hameed Khan for the Complainant.

Raja Mumtaz Hussain Kayani, Addl. A.-G. for the State.

PCRLJ 2007 SHARIAT COURT AZAD KASHMIR 1851 #

2007 P Cr. L J 1851

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

HABIB ULLAH and others----Appellants

Versus

THE STATE and others----Respondents

Criminal Appeals Nos.20 and 31 of 2006, decided on 21st February, 2007.

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

----S. 377---Appreciation of evidence---Victim had narrated the occurrence in detail; his statement was consistent and coherent and had testified the whole occurrence---Was difficult to believe that a boy of 7-1/2 years old could make out a false case to involve accused or that he could substitute accused in someone else---Victim had fully implicated accused in commission of unnatural offence with him and his statement was also supported by medical evidence---Factum of penetration had fully been established through the bleeding of anus and the positive report of Chemical Examiner---Commission of sodomy with the victim having not been disputed by the defence, question of grouping of semen by Serologist, would not arise---No defence plea had been brought forward by accused; in such state of affair impugned judgment of the Trial Court was well founded and no disregard of any principle of appreciation of evidence had been pointed out---Evidence of victim in cases like sodomy was always of vital importance---No doubt, discrepancies on minor points appeared in the prosecution evidence about lodging of F.I.R. but it did not damage the prosecution story as a whole---Delay in lodging F.I.R. did not create any doubt or suspicion because the identity of accused was not disputed as he being nearest relative was well-known to the victim---Delay in lodging F.I.R., could not be applied like a rule of limitation as applied in civil cases---Delay in making F.I.R. in the case could not prejudice prosecution case, in circumstances---Whole of the oral and documentary evidence having been put to accused for seeking his explanation, contention of counsel for accused that F.I.R. was not put to accused during cross-examination under S.342, Cr.P.C., was repelled being misconceived and without substance---No enmity or grudge for falsely implicating accused in the case was on the record---Non-appearance of mother of victim as witness could not be taken as a strong circumstance to discredit prosecution story because the deposition of victim was sufficient to prove guilt of accused---Impugned judgment which did not warrant any interference, was maintained, sentence awarded to accused by the Trial Court, however, was reduced from 25 years to 15 years' R.I., accordingly.

1995 SCR 109 (sic); 1997 PCr.LJ (F.Sh.C) 1107; 2005 PCr.LJ (F.Sh.C.) 97, 158 and 1091; 2006 PCr.LJ (F.Sh.C.) 171 and 790; 2006 SCR 58 and 228; 1999 CLC 1358; 2000 PCr.LJ 769; PLD 2004 SC 633; 2005 PCr.LJ 617 and 1010; Muhammad Zaman v. Muhammad Ramzan 1997 PCr.LJ 376; Zar Bahadar v. The State 1978 SCMR 136 and 1983 PCr.LJ 761 rel.

(b) Precedent---

----Principles laid down in criminal cases were always founded on facts and circumstances of each case and same could not be loosely applied in an omnibus manner.

Ch. Jahandad Khan for Appellants.

Muzaffar Ali Zaffar, Addl. A.-G. for the State.

Haji Muhammad Ayub Sabir for the Complainant.

PCRLJ 2007 SHARIAT COURT AZAD KASHMIR 1860 #

2007 P Cr. L J 1860

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

MUHAMMAD YAQOOB and others----Appellants

Versus

THE STATE and others----Respondents

Criminal Appeals Nos.29, 30 and 24 of 2004, decided on 18th April, 2007.

(a) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)---

----Ss. 5/15---Penal Code (XLV of 1860), Ss.307, 427, 447, 147, 148 & 149---Appreciation of evidence---Parties were closely related to each other and construction of retaining wall was the only dispute between the parties---No evidence to show enmity between eye-witnesses and accused was brought on record---Despite lengthy cross-examination, said eye-witnesses successfully stood the test of cross-examination and defence failed to obtain. anything positive out of their statements and the witnesses successfully proved the facts---Weapons of offence were recovered during investigation at the instance of accused---Motive, time and place of occurrence were established---Allegation of causing fire-arm injuries to the person of deceased was confirmed by the post-mortem report, while allegation of causing fire arm and stone injuries at the person of prosecution witnesses, were also corroborated by medical report---Occurrence took place in the manner alleged by the prosecution---Accused were guilty of offence of murder within the meaning of S.149, A.P.C.---Enmity was prevailing between parties due to the wall which was constructed on the government land---Eye-witness account to the extent of accused was confidence-inspiring---Accused being members of an unlawful assembly were vicariously liable for commission of offence and Trial Court did not commit any error while convicting them---Sentences awarded to co-accused by the Trial Court, were maintained,. but reasons given by the Trial Court while awarding lesser penalty of life imprisonment to main accused, had no substance as it was proved that at the time of occurrence he raised Lalkara and caused fire-arm injuries to deceased in the presence of six eye-witnesses---Weapon of offence was recovered at the instance of said accused and its use for commission of offence was. corroborated by post-mortem report---No mitigation suggesting lesser punishment to said accused was available on record and a strong case warranting conviction under S.5 Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act, 1974 was established against him---Appeals filed by accused were dismissed, while appeal filed by `complainant was partly accepted and Fife imprisonment awarded to main accused was enhanced and he was sentenced to "Qisas" as provided under S.5 of Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act, 1974.

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

----S. 149---Vicarious liability---Section 149, P.P.C. did not create a new offence, but dealt with the vicarious liability of the members of unlawful assembly for acts done in furtherance of common object and for such offences as its members knew to be likely committed in pursuance of its common object---It implied that every member of an unlawful assembly was responsible for the act committed by any other member of that assembly in pursuance of object---While convicting. a person under the-said section 149, P.P.C., it had to be seen whether he was a member of unlawful assembly and offence was committed in pursuance of common object---Necessary ingredients of common object were prior meeting of minds of accused to form a pre-arranged plan and some evidence to prove that accused were in concert and in pursuance of pre-arranged plan had committed, the criminal act.?

Ch. Jahandad Khan for Appellants and acquitted Respondents.

Additional Advocate-General for the State.

Abdul Majeed Malick for the Complainant.

Supreme Court Azad Kashmir

PCRLJ 2007 SUPREME COURT AZAD KASHMIR 635 #

2007 P Cr. L J 1419

[Supreme Court (AJ&K)]

Present: Muhammad Reaz Akhtar Chaudhry, C.J. Khawaja Shahad Ahmad, J

ANISA RAZZAQ----Appellant

Versus

THE STATE through Advocate-General, Azad Jammu and Kashmir----Respondent

Criminal Appeal No.26 of 2006, decided on 14th May, 2007.

(On appeal from the judgment of the AJ&K Shariat Court, dated 18-4-2006 in Criminal Appeal No.34 of 2005).

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

----S. 10(2)---Criminal Procedure Code (V of 1898), S.164-Conviction of accused on her statement made before the Magistrate under S.164, Cr.P.C. as a prosecution witness, treating the same as her confessional statement---Validity---Accused was allegedly abducted by the principal accused and she was not mentioned as an accused in the. F.I.R. filed by her father---Accused was found innocent during investigation and was not challaned as an accused and she was placed as a witness against principal accused---Trial Court did not consider her as an accused and no charge was framed against her---Statement recorded by Magistrate under S.164, Cr.P.C. at the instance of Investigating Officer was a statement . of the accused as a witness of the prosecution and by any stretch of imagination the same could not be considered as a confession by an accused against another accused, simply because she was never an accused in the case---Accused could not be convicted by Trial Court on the ground of her admission or statement made before the Court in examination-in-chief or in cross-examination---Remand of the case by the Courts below to the Trial Court against the accused was also illegal as she had not been forwarded to face the trial and was never considered as an accused right from filing of F.I.R. till recording of her statement under S.342, Cr.P.C.---Accused was acquitted and the remand order was also set aside in circumstances.

Shakeel Ahmed v. State PLD 1998 SC (AJ&K) 31; Ela-us-Sunnah by Maulana Zafar Ahmad Usmani, Vol.XI, pp.666-667; Kitabul Fiqh Alal Mazahibil Arabaa (Urdu translation), Vol.V, pp.166, 167 and Mst. Safia Bibi v. The State PLD 1985 FSC 120 ref.

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

----S. 10(3)---Zina-bil-Jabr liable to Ta'zir---Rape with a woman absolves her of criminal liability---Little difference between the view of Imam Malik and others on this point of law---Only difference is on the point of the evidentiary value of self-exculpatory statement---Imam Malik places the burden of proving the self-exculpatory evidence on the woman and this burden can be discharged by her by proving that she raised alarm or complained against it---Victim can discharge her burden by production of circumstantial evidence.

Mst. Safia Bibi v. The State PLD 1985 FSC 120 ref.

----S. 10(2)---Appreciation of evidence---Principles---No conviction on part of statement made in examination-in-chief or cross-examination---No difference on the main point between Fiqah, common law of England or the law in Pakistan that the victim cannot be convicted on the evidence on record in the shape of her confession or part of her statement made in examination-in-chief or cross-examination.

Mst. Safia Bibi v. The State PLD 1985 FSC 120 ref.

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

----S. 10(2)---Appreciation of evidence---Principles---Confession made by victim or for that matter statement made by her in the Court, a portion of the said statement cannot be considered in isolation to convict her, as in such-like cases the requirement of law is that whole of the statement has to be taken into consideration.

Mst. Safia Bibi v. The State PLD 1985 FSC 120 ref.

Sardar Mushtaq Hussain Khan for Appellant.

Muzaffar Ali Zaffar, Additional Advocate-General for Respondent.

Date of hearing: 1st February, 2007.

PCRLJ 2007 SUPREME COURT AZAD KASHMIR 1036 #

2007 P Cr. L J 1419

[Supreme Court (AJ&K)]

Present: Muhammad Reaz Akhtar Chaudhry, C.J. Khawaja Shahad Ahmad, J

ANISA RAZZAQ----Appellant

Versus

THE STATE through Advocate-General, Azad Jammu and Kashmir----Respondent

Criminal Appeal No.26 of 2006, decided on 14th May, 2007.

(On appeal from the judgment of the AJ&K Shariat Court, dated 18-4-2006 in Criminal Appeal No.34 of 2005).

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

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

Mst. Safia Bibi v. The State PLD 1985 FSC 120 ref.

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

Mst. Safia Bibi v. The State PLD 1985 FSC 120 ref.

Sardar Mushtaq Hussain Khan for Appellant.

Muzaffar Ali Zaffar, Additional Advocate-General for Respondent.

Date of hearing: 1st February, 2007.

PCRLJ 2007 SUPREME COURT AZAD KASHMIR 1387 #

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PCRLJ 2007 SUPREME COURT AZAD KASHMIR 1419 #

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PCRLJ 2007 SUPREME COURT AZAD KASHMIR 1542 #

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