PCRLJ 2008 Judgments - Pakistan Legal Archive

Courts in this Volume

Federal Shariat Court
High Court Azad Kashmir
Karachi High Court Sindh
Lahore High Court Lahore
Northern Areas Chief Court
Peshawar High Court
Quetta High Court Balochistan
Shariat Court Azad Kashmir

PCrLJ 2008 FEDERAL SHARIAT COURT 116 #

2008 P Cr. L J 116

[Federal Shariat Court]

Before Muhammad Zafar Yasin, J

MAQSOOD AHMED----Appellant

Versus

THE STATE----Respondent

Jail Criminal Appeal No.35/I of 2007, decided on 9th May, 2007.

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

----S. 10(2)(3)---Appreciation of evidence---If alleged victim girl had, with her own free will, gone to accused with whom she wanted to marry and had lived with him for 10/11 days; and during that period neither she resisted nor raised any hue and cry, rather she had been enjoying the sexual intercourse with said accused and thereafter came back on her own, it could not be said that she was subjected to Zina-bil-Jabr---Alleged victim was medically examined by the lady doctor, but nothing was available to suggest that she was forcibly subjected to Zina-bil-Jabr as no mark of violence was found on alleged victim; it could safely be concluded that she was a consenting party for commission of Zina---Conviction of accused under S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was not maintainable---Evidence of the lady doctor had proved that Zina had been committed with the victim during the period she remained with accused---Commission of offence under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, having been proved against accused on the basis of prosecution evidence beyond shadow of doubt, conviction and sentence awarded to accused under S.10(3) of the Ordinance, were set aside and accused, instead was convicted and sentenced under S.10(2) of the Ordinance.

Saliheen Mughal for Appellant.

Syed Ali Imran, D.P.G., Punjab for the State.

Date of hearing: 9th May, 2007.

2008 P Cr. L J 627

[Federal Shariat Court]

Before Haziqul Khairi, C.J Salahuddin Mirza and Muhammad Zafar Yasin, JJ

AHSANULLAH----Appellant

Versus

THE STATE----Respondent

Jail Criminal Appeal No.33/K linked with Criminal Reference No.5/K of 2005, decided on 14th February, 2008.

Penal Code (XLV of 1860)---

----Ss. 364-A & 361---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18---Appreciation of evidence---"Kidnapping"---Words "takes" and "entices away"---Impact---Held, in order to invoke the provisions of S.364-A, P.P.C., it was incumbent upon the court to first see whether there was "kidnapping" within the meaning of S.361, P.P.C. which envisaged co-existence of three elements contained therein; namely that the minor was taken or enticed away by the kidnapper; that the minor was out of keeping of the lawful guardian; and that the keeping of the minor was without the consent of the guardian---Once kidnapping was established, the question under S.364-A, P.P.C. would be as to whether accused intended to murder the victim or subject her to grievous hurt or lust---Words "takes" and "entices away" used in S.361, P.P.C. were key to the offence of kidnapping implying some action on the part of the kidnapper to take or entice away followed by keeping the kidnappee out of the lawful guardianship of the guardian without her consent---Said essential ingredients of charge of kidnapping were missing in the case---No evidence was adduced by the prosecution pointing out that it was a case of "kidnapping" of the minor girl---No step whatsoever, was taken by accused which would amount to taking or enticing her away out of the keeping of her lawful guardian---Contention of accused was that he neither had committed Zina-bil-Jabr with the minor girl nor there was any attempt on his part to commit Zina-bil-Jabr with her; that he never wanted to hurt the minor; that at the most he could have been convicted of obscene act under S.294, P.P.C.---Contention was repelled as it was not merely an obscene act on the part of accused---What the prosecution had established was that both accused and the minor victim were without clothes while the victim was sitting on the lap of accused holding his male organ---Accused, in circumstances was guilty of attempt to commit Zina-bil-Jabr under S.18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Death sentence awarded to accused by the Trial Court under S.364-A, P.P.C. was set aside, but his conviction and sentence under S.18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was maintained.

Muhammad Iqbal v. The State PLD 1981 FSC 329; Muhammad Sharif v. The State 1983 PCr.LJ 1817; T.D. Vadgama v. State of Gujarat AIR 1973 SC 2313 (V.60 C 391); Phalla Masih v. The State PLD 1989 FSC 72 and Abdul Hamid v. The State 1984 PCr.LJ 1089 rel.

Muhammad Zubair for Appellant.

Syed Agha Zafir Ali, Asst. A.-G., Sindh for the State.

Date of hearing: 14th January, 2008.

PCrLJ 2008 FEDERAL SHARIAT COURT 657 #

2008 P Cr. L J 657

[Federal Shariat Court]

Before Salahuddin Mirza, J

ATEEQ-UR-REHMAN alias KALI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.206/L of 2006, decided on 28th January, 2008.

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

----S. 10---Appreciation of evidence---Benefit of doubt---Glaring discrepancies were found in the prosecution case---Delay in lodging the F.I.R. had not been satisfactorily explained---Such unexplained delay had never been countenanced by the courts---Was not understandable as to how two girls were kept confined in the Dhari for four days without attracting the attention of passersby and how, they, eventually Managed to escape all by themselves---Bad relations between the complainant and accused party, were also established through the cross-examination of the complainant---Medico-legal examination of the two sisters was also not of much help to the prosecution as it was done after four days of their alleged escape from the clutches of the accused---Semen stains, no doubt could be found in the vaginal swabs after much delay, but one of the sisters was married; it could not be guaranteed that during those four days she did not indulge in sexual intercourse with her husband---Allegation of Zina with the married sister of complainant was not against accused, but was against the proclaimed offender---Swabs, though were sent to Serologist for semen grouping, but reports of Serologist had not been produced and no explanation was given for such non-production---Incompetency and negligence of the Investigating Officer, was also evident from the record---Investigating Officer did not care to inspect the place where two sisters were allegedly kept confined for four days and were allegedly subjected to Zina-bil-Jabr---Accused, in circumstances was entitled to benefit of doubt---Impugned judgment of the Trial Court was set aside and accused was directed to be released.

Sarja v. State 1992 PSC (Cr. 1002 ref.

Naseem Ullah Khan Niazi for Appellant.

Pervaiz Alamgir, D.P.-G. for the State.

Date of hearing: 13th December, 2007.

PCrLJ 2008 FEDERAL SHARIAT COURT 671 #

2008 P Cr. L J 671

[Federal Shariat Court]

Before Muhammad Zafar Yasin, J

MUHAMMAD IQBAL----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.395/L of 2006 in Criminal Appeal No.249/L of 2006, decided on 21st May, 2007.

Criminal Procedure Code (V of 1898)---

----S. 426---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Suspension of sentence---Co-accused had been acquitted, while accused alone had been convicted under S.10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 on the same set of evidence---Conviction of accused and acquittal of co-accused, in circumstances, seemed to be self-contradictory---Accused had already served sentence of almost two years---Application filed by accused for suspension of sentence, was allowed---Accused would be released on bail, accordingly.

Muhammad Shoaib Khokhar for Petitioner.

Syed Faisal Raza Bukhari, D.P.-G. for the State.

PCrLJ 2008 FEDERAL SHARIAT COURT 740 #

2008 P Cr. L J 740

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan and Salahuddin Mirza, JJ

AZAM KHAN----Appellant

Versus

THE STATE and another----Respondents

Criminal Acquittal Appeal No.83/K of 2006, decided on 10th January, 2008.

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

----S. 16---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal---Trial Court accepted application of accused under S.265-K Cr.P.C., for his acquittal on the ground that no substantive material was on record for proceeding against him---Trial Court had further found that complainant/appellant was at liberty to file a private complaint, if in future he would come into possession of any credible and reliable evidence against accused connecting him with the commission of the crime---Question was whether accused had abducted alleged (third) wife of the complainant---Neither two wives of complainant nor the mother of said third wife of complainant had said a word on that point; they did state that complainant had a third wife, but even if it was to be conceded that complainant had a third wife, no case would be made out against the accused---Circumstances did not inspire confidence in the story later developed by complainant as contained in the complaint---No exception could be taken to the order passed by the Trial Court in acquitting the accused.

Sheikh Ghulam Sabir Niazi for Appellant.

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

Muhammad Ashfaq Hussain for Respondent No.2.

Date of hearing: 23rd October, 2007.

PCrLJ 2008 FEDERAL SHARIAT COURT 759 #

2008 P Cr. L J 759

[Federal Shariat Court]

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

GHULAM NABI and 2 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.93/L of 2006 linked with Criminal Reference No.4/L of 2006, decided on 14th March, 2008.

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

----Ss. 7 & 17(3)---Penal Code (XLV of 1860), S.394---Appreciation of evidence---Accused persons had impugned the judgment of the Trial Court, whereby the right hand of each accused from the wrist and left foot of each accused from the ankle were ordered to be amputated under S.17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979---In view of evidence adduced by the prosecution, it was an open and shut case of conviction of accused persons---No cavity existed in the deposition of prosecution witnesses and the case was fully established against accused persons beyond any shadow of doubt---Prosecution had fully established its case of robbery against accused persons, against whom unrebuttable evidence fell under Tazir, whereby the bank was robbed, and during the course, accused persons caused injuries to a number of persons---Minor discrepancies in the case, would fade away into oblivion in view of over-whelming and confidence inspiring evidence adduced by the prosecution---Trial Court, however was extremely callous and unmindful in awarding the grave punishment to accused persons, completely closing eyes to the requirements of 'Tazkiya-al-Shahood'---Trial Court cared not to appoint 'Muzakkies' to inquire about the truthfulness of witnesses and their abstinence from major sins---Manner in which the Trial Court had conducted the inquiry, was nothing, but a mockery of high order based on ignorance, personal whims and pervert outlook---Superfluous and summary inquiry and the casual manner in which it was held was in clear violation of the requirements of 'Tazkiya-al-Shahood' under S.7 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979---Conviction and sentence awarded to accused persons under S.17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, were set aside, however they would stand convicted under S.394 P.P.C. (Tazir) and were sentenced to ten years' R.I. each along with fine of Rs.10,000 payable by each of accused persons.

Amjad Pervez v. The State 2004 YLR 1592; Ghlilam Ali v. The State PLD 1986 SC 741; State v. Amir Zaman Nawaz and 4 others PLD 1979 (AJ&K) 78; Abdus Salam v. The State 2000 SCMR 338 and Allah Ditta v. The State PLD 1992 Lah. 45 rel.

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

----S. 7---Theft liable to Hadd---Proof---Section 7 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, had envisaged that three conditions had to be fulfilled for proof of theft liable to Hadd; namely; that there would be an inquiry by the Trial Court as to the credibility of at least two male eye-witnesses; that the credibility of eye-witnesses would be determined on the basis of their truthfulness and abstinence from major sins; and that statement of the victim of the theft or the person authorized by him would be recorded before the statements of eye-witnesses were recorded.?

----Ss. 7 & 17(3)---Appreciation of evidence---Victim of theft in the case was a bank which was a fictitious person/entity and was not a natural person---Being a fictitious person, it could not adduce evidence of the theft personally, but only through its agent or representative and in the circumstances of the case, its representative to record statement on its behalf was the Bank Manager---Contention that evidence of bank employees was inadmissible under Sharia, had no force and was without any substance; firstly, that the owner was a banking company and was a fictitious person, its real owners were its shareholders who could change from time to time, its employees owned no loyalty to them directly or legally and there was no privity of contract between them and the employees of the bank; secondly, that fictitious legal entities or statutory/corporate bodies were not in existence in the days of Holy Prophet (Peace be upon him) and the relationship of master and servant existed only between natural persons and lastly, that Qanun-e-Shahadat, 1984 did not recognize any such exception.?

Kh. A.H. Khalid Butt and Mian Junaid Razaq for Appellants.

Syed Ali Imran, D.P.G. and Asjad Javaid Ghural, D.P.G. for the State.

Dates of hearing: 16th and 24th January, 2008.

PCrLJ 2008 FEDERAL SHARIAT COURT 775 #

2008 P Cr. L J 775

[Federal Shariat Court]

Before Salahuddin Mirza, J

NAZIR AHMAD alias KAKI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.13/L of 2007, decided on 15th February, 2008.

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

----S. 10---Appreciation of evidence---Benefit of doubt---Complainant, who was mother of victim girl, did not support the prosecution case as made out by her own report and F.I.R.---Complainant had stated that she had nominated accused in the F.I.R. merely on suspicion and that accused had not committed Zina-bil-Jabr with her daughter---Complainant was declared hostile by the prosecution---Alleged eye-witness just denied every thing and said that he did not know any thing about the case, he was also declared hostile---Another prosecution witness was also declared hostile as he also had stated that he knew nothing about the case---Medical evidence, however, proved rape with the victim girl and accused. had himself conceded that girl had been raped, even though he blamed somebody else for the offence---Such was a case of 'no evidence' as no witness, had not only said a word against the accused, but all of them, had positively stated that accused was innocent---Medical evidence, no doubt, did establish the commission of rape with the victim but it did not establish that perpetrator of the crime was the accused---Victim girl had not even been examined---Benefit of doubt was given to accused and impugned judgment was set aside and accused was acquitted and released.

M.A. Zafar for Appellant.

Malik Muhammad Rafique Khokhar, D.P.-G. for the State.

Date of hearing; 18th December, 2007:

PCrLJ 2008 FEDERAL SHARIAT COURT 797 #

2008 P Cr. L J 797

[Federal Shariat Court]

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

SANAULLAH and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.68/K, 80/K, 84/K and 88/K of 2006, decided on 30th October, 2007.

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

----Ss. 13, 14 & 18---Criminal Procedure Code (V of 1898), S.265-H(2)---Appreciation of evidence---Not only the prosecution had failed to prove its case beyond any shadow of doubt, but even evidence had shown that accused had been maliciously and falsely implicated in a fabricated ease, which had no legs to stand upon---Complainant had said that the door of the house in question was open when the police party reached the house---Owner of the house where a prostitution den was allegedly running, would not keep its door open, at the time when prostitution activity was going on there---F.LR. did not disclose that any illegal activity was going on in that house---No charge of committing Zina was framed against accused and they were charged for making preparation for committing Zina---F.I.R. did not disclose any circumstance which would warrant the conclusion that accused were preparing to commit Zina---Charging accused under S.18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was not justified, in circumstances and charging accused under Ss.13 & 14 of said Ordinance was even more outrageous---F.I.R. or statements under S.161 Cr.P.C. of the witnesses did not even remotely suggest that any one of the accused had sold, or was trying to sell any one for purpose of prostitution or any of them had brought or hired any one or otherwise obtained possession of any one with the intention that such person would be employed or used for the purpose of prostitution or illegal sexual intercourse---Besides, the F.I.R. did not disclose who was the victim of the offence with which six accused had been charged---Trial Court did not apply its mind to the evidence before it and allowed it to be governed by whims and surmises and convicted accused on unreliable evidence---Impugned judgment which was perverse and deserved to be set aside, and accused were acquitted, in circumstances.

and surmises and convicted accused on unreliable a-evidence---Impugned judgment which was perverse and deserved to be set aside, and accused were acquitted, in circumstances.

Muhammad Aslam and 5 others v. The State 1972 SCMR 194 and Muhabbat Ali and another v. The State 1985 SCMR 662 ref.

Zulfiqar Ali Solangi for Appellant (in Criminal Appeal No.68/K of 2006).

Abdul Rauf Kasuri and Kashif Hanif for Appellant (in Criminal Appeal No.84/K of 2006).

Feroz Hussain Sheikh for Appellant (in Appeal No.88/K of 2006).

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

Date of hearing: 30th October, 2007.

PCrLJ 2008 FEDERAL SHARIAT COURT 824 #

2008 P Cr. L J 824

[Federal Shariat Court]

Before Haziqul Khairi, C. J., Salahuddin Mirza and Muhammad Zafar Yasin, JJ

AZHAR AMIN alias NAJI alias MOTA----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.139/L of 2006 linked with Criminal Murder Reference No.6/L of 2007, decided on 19th March, 2008.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 377---Appreciation of evidence---Glaring discrepancies and contradictions were found in the evidence adduced by the prosecution---Complainant had named nobody in the F.I.R., but in his application to police he suspected eight persons including accused of murdering his son---Nothing in evidence was available to the effect that dead body of the deceased was pointed out by accused or his blood-stained clothes were recovered at the instance of accused---No credibility could be attached to such pointation---Material contradictions existed in two reports with regard to D.N.A. test and no satisfactory explanation was available for the such lapses---Nothing was on record as to who received back the last-worn clothes of deceased or prepared recovery memo. and again packed and sealed the clothes in safe custody---Such was a clear case of tampering with evidence by the Police Officials by cutting a part of the trouser for D.N.A. test---Prosecution had miserably failed to establish its case against accused both on the basis of ocular evidence and D.N.A. test; such was, in circumstances, a case of conflict between two testimonies, ocular and medical---Accepting appeal of accused against his conviction and sentence, he was ordered to be released from jail.

Muhammad Iqbal and another v. The State 1978 PCr. LJ 670; Yousaf v. The State PLD 1988 Kar. 521 and Muhammad Azhar v. The State PLD 2005 Lah. 589 ref.

Syed Zeshan Taimoor Gilani for Appellant.

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

Date of hearing: 18th December, 2007.

PCrLJ 2008 FEDERAL SHARIAT COURT 943 #

2008 P Cr. L J 943

[Federal Shariat Court]

Before Haziqul Khairi, C. J.

MUHAMMAD YAMEEN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.20-L of 2005, decided on 17th March, 2008.

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

----S. 10(3)---Appreciation of evidence---Sentence, reduction in---Rape---Medical report of lady doctor who examined the victim, revealed her to be an elderly lady of 40 years---Lady had four daughters and six sons---Record- showed that husband of the victim had asked accused not to come to hi;, house---Even though accused was a near relation of victim, he was considered an undesirable person to visit house of the victim---Keeping in view age of victim and fact that she was the mother of ten children and grandmother of many grandchildren, it was impossible to believe that she would put her honour and of her entire family at stake by lodging a false case against her near relation---Counsel for accused had contended that according to testimony of lady doctor, no marks of violation was found on the body of the victim; and that if rape was committed on any woman, there should be marks of violence or marks of resistance, contention stood rebutted by observation of lady doctor, that she found "slight redness over nasal bone of the victim"---Counsel for accused had further urged that chemical report though was positive, but could not be relied upon as the complainant was a married woman---Held it was true that no D.N.A. or similar test was carried out in order to ascertain the truth, however testimony of victim duly supported by other prosecution witnesses, had remained unshaken and irrebuttable, independently of medical report etc., convincingly furnished ground for conviction of accused---Conviction of accused was maintained, however the sentence of accused was reduced from ten years' R.I. to seven years' R.I., with benefit of S.382-B, Cr.P.C.

Muhammad Shakeel Chaudhry for Appellant.

Syed Ali Imran, Dy.P.-G. for the State.

Date of hearing: 25th February, 2008.

PCrLJ 2008 FEDERAL SHARIAT COURT 958 #

2008 P Cr. L J 958

[Federal Shariat Court]

Before Haziqul Khairi, C. J. Salahuddin Mirza and Muhammad Zafar Yasin, JJ

MUHAMMAD SHAFIQUE alias CHUMA and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.No.302/L, 303/L and Murder Reference No.6-L of 2006, decided on 10th April, 2008.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 337/34---Appreciation of evidence---Benefit of doubt---Sentence, reduction in---Prosecution case revolved around circumstantial evidence and extra judicial confession made by accused---Even if extra-judicial confession made by accused to have sodomised and murdered the deceased, whereby . he had also implicated co-accused, could be overlooked, still no reasonable inference could be drawn, except commission of the crime by both accused persons on the basis of; last seen evidence adduced by the prosecution through prosecution witnesses; unimpeachable evidence establishing recoveries of the dead body of deceased; his last seen clothes and the bicycle all at the instance of accused persons in the presence of prosecution witnesses---Unimpeachable medical evidence was available in respect of commission of sodomy on the deceased, but neither there was any D.N.A. test nor grouping of semen/swabs to establish; whether both accused persons or one of them had committed the sodomy---Due to such uncertain position, benefit of doubt would go to both accused persons and case of sodomy was not established against them---Conviction and sentence of accused persons under S.377/34 P.P.C. were set aside, but their appeal for murder was dismissed and their death penalty was converted to imprisonment for life while maintaining compensation amount payable by both of them under S.544-A, Cr.P.C. to the legal heirs of the deceased.

Rehan Zafar for Appellants.

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

Date of hearing: 7th Mach, 2008.

PCrLJ 2008 FEDERAL SHARIAT COURT 971 #

2008 P Cr. L J 971

[Federal Shariat Court]

Before Syed Afzal Haider, J

KAZIM HUSSAIN alias QAZI----Appellant

Versus

THE STATE----Respondent

Jail Criminal Appeal No.209/I of 2007, decided on 18th April, 2008.

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

----S. 377---Qanun-e-Shahadat (10 of 1984), Art.3---Evidence of child witness---Competence---Prosecution did not produce victim child aged 5 years to substantiate the allegation of sodomy against accused---No evidence was available to the effect that victim child was not of sound mind---Trial Court did not even think fit to summon the child as court witness, despite he was direct affectee of the gruesome crime and was essential and a natural witness---Statement of the child could have clinched the whole issue---Article 3 of Qanun-e-Shahadat, 1984 did not at all contemplate age limit for a person to be a legally competent witness---Every person was competent to testify unless, in the opinion of the court, the witness failed in the test stipulated therein---Child witness should have been summoned, particularly when one eye-witness in case was given up and the other had resiled---If the statement of a child witness was consistent, worthy of credence, straightforward and confidence-inspiring, then conviction could be based upon such evidence, if it was corroborated by circumstantial evidence, medical and recovery evidence---Trial Court, in circumstances, should have examined the victim because the Trial Court during the trial process, was the best judge to watch demeanour and conduct of various categories of the witnesses.

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

----S. 377---Appreciation of evidence---Site plan was made without scale by the Investigating Officer---No indication. was given as to who pointed out the various points to the Police Officer and from which position the alleged eye-witnesses saw the occurrence; and from which place the victim was collected by whom---Even the distances were not mentioned---Such sort of negligence on the part of Investigator, in such a heinous crime and cruel act, should not go unnoticed by Senior Police Officer---Investigator was duty bound to collect best possible evidence when it was in fact available---Doctor who performed the potency test of accused, failed in his duty to procure semen of accused for the purpose of ascertainment whether it matched with semen found on the anal swabs of the victim---Such was a case of culpable neglect and indifference on the part of Investigating Agency that an untrained junior rank Police Officer was asked to investigate such a case when the District Police Officer should have been vigilant and watchful of the gravity of the offence committed in his jurisdiction and it was impossible to do justice with such faulty investigation and criminal lack of assistance---Human conscience revolved against such sort of conduct---How painful the incident reported to the police might be, the Judge was duty bound to assess the evidence placed on record---Judge, in order to record conviction, must be convinced that the prosecution had successfully established guilt of accused without any shadow of reasonable doubt---Holy Prophet (Peace be upon him) had cautioned that punishment should be suspended whenever doubt crept in the judicial proceedings---One of the prosecution witnesses was declared hostile and he did not support prosecution version of sodomy---Allegation of sodomy, in circumstances had not been proved against the accused---Accused was acquitted of the charge and released---Conviction and sentence awarded to accused by the Trial Court, were set aside.

Abid Javed alias Mithu v. The State 1996 PCr.LJ 1161; Mst. Ehsan Begum v. The State PLD 1983 FSC 204; Muhammad Aslam v. Shakeel Liaqat 2006 SCMR 348; Amanat's case 1995 MLD 954; Ashiq Hussain v. The State 1993 SCMR 417; Ali Sher v. State PLD 1980 SC 317 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

Ch. Rafaqat Ali for Appellant.

Shahid Mehmood Abbasi, Dy. P.-G. for the State.

Date of hearing: 14th April, 2008.

PCrLJ 2008 FEDERAL SHARIAT COURT 1012 #

2008 P Cr. L J 1012

[Federal Shariat Court]

Before Muhammad Zafar Yasin, J

EJAZ ALI----Appellant

Versus

THE STATE----Respondent

Jail Criminal Appeal No.154-I of 2007, decided on 31st October, 2007.

Penal Code (XLV of 1860)---

----S. 392---Offences Against Property (Enforcement of Hudood), Ordinance (VI of 1979), S.17(3)---Appreciation of evidence---F.I.R. which was lodged promptly revealed that the complainant had not specified the role of any of the persons who had participated in the robbery nor had given any identification features of any of the participants---Nothing was on record to show that on what basis accused was suspected as an accused by Investigating Officer---Accused remained on physical remand with the police, but no incriminating articles had been recovered from him---Any incriminating statement made by accused in police custody, was not admissible in law---Trial Court, in circumstances, was not justified in law in relying on disclosure memo. made by accused while in police custody---Identification parade was got conducted 9 days after arrest of accused and said unexplained delay had cast serious doubt, apart from the fact that it was supervised by D.S.P. who had no authority to supervise same---No private person was mixed with accused at the time of .identification parade, except 4/5 police constables---Identification parade was conducted at the residence of the complainant---Memo. of recovery had been witnessed by two constables of the concerned Police Station---Evidence of identification parade being of very doubtful nature same could not be relied upon---Conviction and sentence of accused recorded by the Trial Court on the basis of inadmissible evidence and without any independent corroboration in the shape of any recovery of incriminating articles, could not be upheld and accused was entitled to benefit of doubt---Accused was acquittal of the charge and was released, in circumstances.

Shafique Ahmad and 4 others v. The State 2002 PCr.LJ 518; Lal Pasand v. The State PLD 1981 SC 142; Muhammad Yar alias Yari v. The State 2001 MLD 807 and Muhammad Alam alias Shin v. The State 2001 PCr.LJ 86 rel.

Saliheen Mughal for Appellant.

Mehmood Raza Khan, Addl. A.-G. Balochistan for the State.

Date of hearing: 31st October, 2007.

PCrLJ 2008 FEDERAL SHARIAT COURT 1019 #

2008 P Cr. L J 1019

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan and Syed Afzal Haider, JJ

MUHAMMAD ARSHAD----Appellant

Versus

THE STATE----Respondent

Jail Criminal Appeal No.93/I of 2007, decided on 23rd April, 2008.

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

----Ss. 302(b) & 377---Qanun-e-Shahadat (10 of 1984), Art.20---Appreciation of evidence---Benefit of doubt---Notwithstanding the gravity of the occurrence, the Investigating and Medical Officers did not deem it necessary to obtain semen sample of accused when he was medically examined to determine his sexual potency---Semen matching would have clinched the issue, but prosecution side opted to give up that aspect---Last seen evidence though was admissible under Art.20 of Qanun-e-Shahadat, 1984, but it was a weak type .of circumstantial evidence for becoming the basis of conviction of accused---No probative evidence was available to the effect that victim and accused were seen together before the occurrence---Place of occurrence was located in a public road emanating from nearby village---Offence of sodomy by force at such a place at 11.00 a.m. in close proximity to Abadi Deh, could not possibly be committed---Prosecution had not been able to saddle responsibility of the offence upon the accused---Direct or circumstantial evidence did not support prosecution story---Evidence of last seen was not substantiated---Investigation lacked seriousness---Medical opinion did not support ocular testimony---Even time of death was not fully proved---Burden of proof had not been discharged by prosecution---Prosecution version had undergone improvements---Factum of arrest of accused was shrouded in mystery---Accused was acquitted by giving him benefit of doubt and he was set at liberty, in circumstances.

Besant Singh v. Emperor AIR 1927 Lah. 541; Hayat v. Emperor AIR 1932 Lah. 243; Allah Ditto v. The State 1968 SCMR 370; Rehmat v. The State PLD 1977 SC 515; Siraj v. Crown PLD 1956 FC 123; Karamat Hussain v. The State 1972 SCMR 15; Abdus Samad v. The State PLD 1964 SC 167; The State v. Manzoor Ahmed PLD 1966 SC 664; R. v. Nash (911) Cr. App. Rep. 255; Ata Muhammad v. The State 1995 SCMR 599; Muhammad Amin v. The State 2000 SCMR 1784; 1969 SCMR 558; 1969 PCr.LJ 1108; PLD 1991 SC 718; 1999 ALD 48(i); PLD 1991 SC 434; 1991 SCMR 1601; 1998 PCr.LJ 722; PLD 1959 SC (Pak.) 269; PLD 1978 SC 21; 1991 PCr.LJ 956; PLD 1964 Quetta 6; 1971 PCr.LJ 211; 1980 PCr.LJ 164; 1998 SCMR 2669; PLD 1971 Kar. 299; 1988 PCr.LJ 205; NLR 1988 Cr. 599; 1997 SCMR 1279; PLD 1978 B.J. 31; 1977 SCMR 20; AIR 1927 Lah. 541; PLD 1956 FC 123; PLD 1966 SC 664; Mst. Reshman Bibi v. Sheerin Khan and others 1997 SCMR 1416; Jafar Ali v. The State 1999 SCMR 2669; Mst. Robina Bibi v. The State 2001 SCMR 1914; Charan Singh v. The State of Uttar Pradesh AIR 1967 SC 520; Phalya Motya Valvi v. The State of Mahrashtra AIR 1979 SC 1949; Kosher Chand v. State of Himachal Pradesh AIR 1990 SC 2140 and Laxman Naik v. State of Orisa AIR 1995 SC 1387 ref.

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

----Art. 20---Penal Code (XLV of 1860), Ss.302 & 377---Circumstantial evidence---Principles---Last seen evidence alone was not at all a strong piece of evidence---Weak piece of evidence could not corroborate another evidence---Weak evidence alone could not become the basis of conviction---To sustain conviction, the evidence must be unimpeachable---Best possible evidence must be produced by the prosecution---Strong circumstantial evidence could successfully implicate an accused in an un-witnessed occurrence, but such evidence must be incompatible with the innocence of accused---Circumstantial evidence should not be capable of explanation on any other hypothesis except the guilt of accused---Court, however had to be vigilant and must be convinced before conviction was recorded---Conviction must be based upon solid evidence produced in court and the inferences that could be validly drawn from such evidence---Surmises or conjectures or probabilities could not be legal substitute for direct evidence---Four principles were to be considered in order to prove case on the basis of circumstantial evidence; firstly that circumstances from which conclusion was to be drawn, should be fully established; secondly that all facts should be consistent with hypothesis; and thirdly that circumstances should be of a conclusive nature; lastly circumstances should lead to moral certainty and actually exclude every hypothesis, but one proposed to be proved.

NLR 1983 (Crl.) 686 (sic) rel.

Aftab Ahmed Khan for Appellant.

Shahid Mehmood Abbasi, Dy. P.-G. for the State.

Date of hearing: 15th April, 2008.

PCrLJ 2008 FEDERAL SHARIAT COURT 1131 #

2008 P Cr. L J 1131

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan and Syed Afzal Haider, JJ

GHULAM SHABBIR and 2 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.288/I of 2006, decided on 23rd April, 2008.

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

----S. 12---Penal Code (XLV of 1860), Ss.377, 324 & 511---Appreciation of evidence---Benefit of doubt---Owner of field, the alleged place of occurrence from where blood was reportedly recovered, was not associated by Investigating Officer---Site plan did not at all indicate the place from where the eye-witnesses saw accused indulged in firing and making attempts to commit sodomy when it was dark---Was not certain as to who took the injured to the hospital---Medical evidence by itself neither established the identity of accused nor proved complicity of accused in the crime---Medical evidence must be in line with ocular account on all material facts---Medical evidence in the case only confirmed injuries, but did not identify accused---Element of the requisite corroboration and nexus between accused and the crime was lacking---No evidence of wheat crop having been damaged or motorcycle tyres' prints having been found, judgment of the Trial Court whereby accused persons were convicted and sentenced, could not be upheld---Accused persons were acquitted and released by giving them benefit of doubt.

Ashiq Hussain v. The State PLD 1994 SC 879 and State of Haryana v. Indar Singh 2002(3) SC 87 ref.

Sardar Khuram Latif Khan Khosa for Appellant.

Shahid Mehmood Abbasi, Dy. P.-G. for the State.

Date of hearing: 17th April, 2008.

PCrLJ 2008 FEDERAL SHARIAT COURT 1364 #

2008 P Cr. L J 1364

[Federal Shariat Court]

Before Muhammad Zafar Yasin and Syed Afzal Haider, JJ

NOSHERWAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.277/I of 2005, decided on 29th May, 2008.

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

----S. 540---Power to summon material witness and examine a person present in the court---Scope---Purpose of S.540, Cr.P.C. was neither to rectify an error nor to fill in lacunae in the prosecution case---Law was not codified to give a licence to the prosecution to ask for the recall of a witness because there was an omission in his previous statement.

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

----Ss. 10, 11 & 16---Criminal Procedure Code (V of 1898), Ss.233 & 237---Appreciation of evidence---Charging accused with one offence, but convicting him for the other---Separate charges for distinct offences--Accused in the present case was charged under S.11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and S.10 of said Ordinance was omitted by the Trial Court, but at the time of recording verdict of guilt, accused was convicted for both the offences under Ss.10 & 11 of said Ordinance---Validity---Wordings of S.233, Cr.P.C. had laid down the general principle that for every distinct offence of which any person was accused there would be a separate charge and every such charge would be tried separately---Offence under S.10 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was distinct from the offence mentioned in S.11 and S.16 of said Ordinance, even though those found mentioned in the same statute---Exception, however, was mentioned in S.237, Cr.P.C. which empowered a court to convict an accused for an offence for which he was not charged, if it appeared in evidence that accused had committed a different offence for which he might have been charged---Section 237, Cr.P.C. which had enshrined an exception, had to be construed strictly---No element of force was brought on record---Presence of five co-accused along with accused had been disbelieved by the Trial Court and said five co-accused were acquitted of the charge of abduction---Evidence of Zina, however was available on record and according to S.237, Cr.P.C. accused could be convicted under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

----Ss. 10, 11 & 16---Appreciation of evidence---Sentence, reduction in---Element of force was absent in the case and no evidence was available to support even the element of seduction, inducement or persuation applied upon the victim by accused---Possibility of alleged victim herself going to accused could not be ruled out; it would, in circumstances, be considered a case of consensual relationship between alleged victim and accused---Conviction under S.10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 alone in circumstances, could be maintained---Present was the first case of the offender and might be that the girl (alleged victim) herself seduced accused into intimate relationship---Accused had already suffered imprisonment for over two and a half years after the pronouncement of judgment and almost three months from the time he was arrested upto the day he was released on bail---Case under S.11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was not made out at all, conviction recorded against accused by the Trial Court said section 11 was set aside, but conviction under S.10 of the Ordinance, was maintained---Case was that of consent and both the parties elected to suppress true facts; case of reduction of sentence, in circumstances was made out---Sentence awarded to accused was excessive and not in tune with practice, particularly in consent cases where parties were sui juris---Sentence imposed upon accused was reduced to a period of two years and six months---Sentence of fine was also reduced to Rupees five thousand only.

Khawaja Azhar Rasheed for Appellant.

Muhammad Sharif Janjua for the State.

Date of hearing: 29th May, 2008.

PCrLJ 2008 FEDERAL SHARIAT COURT 1383 #

2008 P Cr. L J 1383

[Federal Shariat Court]

Before Muhammad Zafar Yasin, J

MUHAMMAD ISHAQ alias LANGHRA PIR----Appellant

Versus

THE STATE----Respondent

Jail Criminal Appeal No.62-I of 2007, decided on 24th October, 2007.

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

----Ss. 10 & 11---Appreciation of evidence---Allegation against accused was that he along with co-accused abducted alleged abductee and that he had committed Zina-bil-Jabr with her---Plea of accused was that alleged abductee being unmarried sui juris accompanied him with her free-will and contracted marriage with him and had been living with him as his wife---Alleged abductee had categorically denied the fact of having entered into marriage with the accused---Accused neither had produced any witness of his marriage with alleged abductee nor examined Nikah Khawan to prove that alleged marriage had been solemnized in accordance with law---Mere production of alleged Nikah Nama without its formal proof was of no value---Logical conclusion, in circumstances, was that accused had been committing Zina with the alleged abductee---Accused along with his co-accused had been acquitted of the charge under S.11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and against that acquittal no appeal had been filed by the State. or the complainant; it was, in circumstances, evident that alleged victim had accompanied accused with her free consent---Alleged victim had been living with accused for a period of more than two months at different places, where she had been subjected to Zina, neither she raised any resistance nor hue and cry---Even the Medico-legal report of alleged abductee had shown that no mark of violence was found on any part of her body or on her private parts, while she was subjected to sexual intercourse---No corroborative evidence was available on record except the solitary statement of the abductee that she had, been subjected to Zina-bil-Jabr---Accused was handicapped person and he was also physically incapacitated to commit Zina-bil-Jabr---Alleged victim being sui juris had been living with accused for more than two months and had been enjoying the sex with him with her free consent---Conviction and sentence of accused under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 as recorded by the Trial Court was converted into one under S.10(2) of said Ordinance and he was sentenced to three years' R.I. with benefit of S.382-B Cr.P.C.

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

----Art. 140---Cross-examination as to previous statement---Where a party had gone into the witness-box on the point in issue and had made a statement inconsistent with the previous admission or ran counter to that admission; then the previous admission could not -be used as legal evidence in the case against that party, unless the attention of the witness during cross-examination was drawn to that statement and he was confronted with the specific portions of that statement which were sought to be used as admission---Without complying with the procedure laid down in Art.140 of Qanun-e-Shahadat, 1984 the admission contained in the previous statement could not be used as legal evidence against that party.

Sikandar .Hayat and 4 others v. Master Fazal Karim PLD 1971 .SC 730 rel.

M. Saliheen Mughal for Appellant.

Asjad Javed Ghuraia and Raja Shahid Mehmood Abbasi, D.P.-G., Punjab for the State.

Date of hearing; 24th October, 2007.

PCrLJ 2008 FEDERAL SHARIAT COURT 1399 #

2008 P Cr. L J 1399

[Federal Shariat Court]

Before Muhammad Zafar Yasin, J

MUHAMMAD JAVED---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.213-I of 2007, decided on 1st November, 2007.

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

----Ss. 10 & 11---Appreciation of evidence---Allegations of abduction and Zina-bil-Jabr---Trial Court acquitted accused and his co-accused of the charge under S.11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, but convicted and sentenced accused alone for commission of offence punishable under S.10(3) of the said Ordinance---Acquittal of accused and his co-accused under S.11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 had neither been challenged by the State nor by the complainant--Effect---Presumption would be that said portion of prosecution story (abduction of victim) was incorrect---Alleged victim, in circumstances had accompanied accused with her free will, who otherwise was her maternal uncle's son---Alleged victim girl in her statement recorded under S.164, Cr.P.C. had denied to have been abducted by anybody or subjected to Zina-bil-Jabr by anyone---Alleged victim took `U' turn in the Court and fully supported prosecution version that she was abducted and was subjected to Zina-bil-Jabr by accused--Court, however, noted in its order that from the face of girl it was evident that she was terrified---Statement of the prosecutrix/alleged victim made in the court could not be believed being contrary to her statement recorded under S.164, Cr.P.C., immediately after her recovery---Medical evidence, however corroborated version of prosecutrix to the extent that she had been subjected to sexual intercourse during the period she was in the company of accused---Alleged victim was medically examined and according to opinion of Lady Doctor, Zina was committed, but no marks of violence was present on her body and neither any other marks of violence found on vulva or vagina, which had proved that she was consenting party---Such being a case of Zina-bil-Raza punishable under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, conviction of accused was converted from S.10(3) to S.10(2) of said Ordinance and accused was sentenced to two years' R.I. with benefit of S.382-B, Cr.P.C.

Ibrar Hussain and others v. The State 2007 SD 233 and Waqar Nazir and another v. The State 2007 SCMR 661 rel.

M. Saliheen Mughal for Appellant.

Raja Shahid Mehmood Abassi, D.P.-G. for the State.

Date of hearing: 1st November, 2006.

PCrLJ 2008 FEDERAL SHARIAT COURT 1423 #

2008 P Cr. L J 1423

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan and Syed Afzal Haider, JJ

ZAHID HUSSAIN and another---Appellants

Versus

THE STATE and another---Respondents

Jail Criminal AppealNo.229-I of 2006 and Criminal Revision No.40-I of 2006, decided on 12th May, 2008.

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

----S. 10(3)---Penal Code (XLV of 1860), S.452---Appreciation of evidence---Statement of Lady Doctor who examined the victim girl on the question of the condition of private parts of the victim and opinion of Lady Doctor that it was a case of rape, was not challenged by accused while examining the Lady Doctor---Defence had not been able to establish the enmity with the victim so as to raise reasonable doubt about implication of accused---Element of delay in lodging F.I.R. was not fatal---Evidence of victim was direct and very clear---Victim was supported in her evidence by the testimony of her mother who woke up after hearing the cries of her victim daughter and saw accused running away---Impact of that shock was so grave that the family of the victim migrated from the village 4-5 days after the' incident---Impugned judgment of the Trial Court and reasoning adopted therein could not be disagreed as inferences and conclusion arrived at by the Trial Court were based upon facts and circumstances of the case---Trial Court, however was not justified to impose penalty of fine of Rs.50,0000 (five lac), as Trial Court was not empowered to impose said penalty because same was not contemplated in subsection (3) of S.10 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Said sentence was set aside and conviction of accused on both the counts and other sentences awarded to accused were maintained---Revision by the prosecution for enhancement of sentence awarded to accused was dismissed.

Raja Ikram Ameen Minhas and Ch. Rafaqat Ali for Appellant.

Nemo for the Complainant.

Asjad Javed Ghural Deputy Prosecutor-General for the State.

Date of hearing: 6th May, 2008.

PCrLJ 2008 FEDERAL SHARIAT COURT 1439 #

2008 P Cr. L J 1439

[Federal Shariat Court]

Before Haziqul Khairi, C.J.

MUHAMMAD NOMAN and another-Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.48-L of 2005, decided on 30th May, 2008.

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

----S. 18---Penal Code (XLV of 1860), Ss.294 & 354---Juvenile Justice System Ordinance (XXII of 2000), Ss.2(b), 4 & 12---Juvenile Justice Rules, 2001, R.6---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Testimony of one of the prosecution witnesses being concocted and afterthought was discarded---Prosecution had successfully established that accused took snaps of the girls, while co-accused took away Shalwar of the victim girl; was not in circumstances a case of Zina-bil-Jabr, but of outraging the modesty of victim girl---Accused persons who were children under S.2(b) of Juvenile Justice System Ordinance 2000, their trial should have proceeded under S.4 of said Ordinance---Conviction and sentence of accused persons would tantamount to throwing them away in a prison for adults with R.I. in violation of S.12 of Juvenile Justice System Ordinance, 2000---Child could only be detained in Borstal Jail under R.6 of Juvenile Justice Rules, 2001---Present was not a fit case for remand as prosecution had no other evidence available, except what was on record---Case against accused, in circumstances fell under S.354, P.P.C.---Conviction and sentences awarded to accused persons by the Trial Court, were set aside---Accused, however, were liable to conviction under S.354, P.P.C.---In view of mitigating circumstances, accused were sentenced to three months' S.I. under S.354, P.P.C.

Aleem Ashraf v. The State 2005 MLD 1028; Ketno v. Judge, Anti-Terrorist Court, Special Court for ATA and another 2005 MLD 353; Muhammad Hanif v. The State 2002 PCr.LJ 1235 and Ibrahim and another v. The State 1987 PCr.LJ 284 ref.

Malik Mumtaz Akhtar for Appellants.

Syed Faisal Raza Bukhari Deputy Prosecutor-General for the State.

Date of hearing: 21st April, 2008.

PCrLJ 2008 FEDERAL SHARIAT COURT 1514 #

2008 P Cr. L J 1514

[Federal Shariat Court]

Before Haziqul Khairi, CJ

ABDUL GHAFFAR and another----Appellants

Versus

THE STATE----Respondent

Jail Criminal Appeals Nos.36/K and 37/K of 2007, decided on 30th April, 2008.

Penal Code (XLV of 1860)---

----S. 365---Scope and applicability of S.365, P.P.C.---In order to bring the case within ambit of S.365, P.P.C. it was incumbent that a person was kidnapped or abducted with intention to cause that person to be confined secretly and wrongfully in respect of which no evidence was available at all---Alleged abductee was not recovered from the custody of accused nor any evidence was on record that accused had confined her secretly and wrongfully---Alleged abductee was neither examined by the prosecution nor even produced her recovered son aged 8 years by the prosecution---Story of the prosecution was that alleged abductee was seen on the road at a public place where there was lot of traffic, but she raised no hue and cry---Deposition of the complainant (father of abductee) was reliable only to the extent that he did not find his daughter/alleged abductee when he came back home, but no credibility could be attached to his testimony as he had failed to establish that accused came to his house and deceitfully abducted his daughter---Appeal of accused was accepted and impugned judgment passed by the Trial Court was set aside and accused was directed to be released.

Qazi Wali Muhammad and Mrs. Saeeda Siddiqui for Appellants.

Mrs. Arshad H. Lodhi for the State.

Date of hearing: 20th February, 2008.

PCrLJ 2008 FEDERAL SHARIAT COURT 1651 #

2008 P Cr. L J 1651

[Federal Shariat Court]

Before Haziqul Khairi, CJ

BEHRAM----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.10/Q of 2006, decided on 15th July, 2008.

Penal Code (XLV of 1860)---

----S. 392---Appreciation of evidence--Prosecution had failed to produce the complainant who being the eye-witness was the star witness---Complainant in F.I.R. had stated that his vehicle was snatched by some persons---Expression some persons' in ordinary sense, was taken asfew persons', whereas as many as 13 accused persons were there, out of whom eleven were declared absconder---No one was named, nor their description was given in the F.I.R.---Owner of the car in which complainant was travelling, was not produced---Unexplained contradiction existed in the deposition of prosecution witness and the complainant with regard to time of occurrence---So many police officials were in a police van who saw accused running out of the taxi, but they made no attempt to get hold of him---Statement of witnesses under S.161, Cr.P.C. was recorded after a delay of 9 days for which no explanation was forthcoming---Fallacy of the identification parade became evident in the deposition of prosecution witness who stated that 10 to 12 persons were in identification parade, whereas as per D.S.P. there were 5/6 persons---Said prosecution witness had also admitted that S.H.O. and D.S.P. were present at the time of identification parade; but nothing was in his statement as to where he saw accused first to link him with the crime and how he could identify the accused---No recovery was made from accused---Prosecution, in circumstances, had failed to establish its case against accused---Impugned judgment of the Trial Court was set aside with direction to jail authorities to release accused.

Amanullah Kanrani for Appellant.

Abdul Karim Langove for the State.

Date of hearing: 14th May, 2008.

PCrLJ 2008 FEDERAL SHARIAT COURT 1666 #

2008 P Cr. L J 1666

[Federal Shariat Court]

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

ALLAH NOOR----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.106/Q of 1998, heard on 12th May, 2008.

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

----S. 17(4)---Penal Code (XLV of 1860), S.34---Appreciation of evidence---Benefit of doubt---Accused was not nominated in the F.I.R. and he was implicated in the case by two acquitted co-accused whose confessional statements were exculpatory---Kalashnikov, though was allegedly recovered at the pointation of accused, but nothing was on record to suggest that deceased was murdered by a shot coming from Kalashnikov---Was not ascertainable as to which gun/rifle was used for killing deceased and whether all the nine empties bullets recovered by prosecution witness and the one bullet taken out from the dead body of the deceased came out from the Kalashnikov belonging to the accused---On basis of that evidence, false involvement of said acquitted two co-accused in the firing at the truck resulting into the death of deceased, could not be ruled out---Confession of said co-accused was also self-exculpatory and they remained silent till they were arrested---Only four dummies were available in the identification parade of accused which were insufficient for purposes of identification---Evidence of a dumb person, by itself could not form basis of the conviction of accused---Prosecution in circumstances had failed to establish case of conviction against accused and accused was entitled to benefit of doubt---Impugned judgment passed by the Trial Court against accused was set aside with direction to jail Authorities to release accused.

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

----Art. 59---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Appreciation of evidence---Evidence of dumb witness, recording of---Under provisions of Art.59 of Qanun-e-Shahadat, 1984, evidence of a dumb witness could be recorded through an expert, in which court could form an opinion of specifically skilled person, brought to its notice---In the present case the testimony of dumb person was verbally translated by a teacher of Special Education Complex---Language of a dumb person required special knowledge or skill which could be acquired through Specialist in the field---Accused had not questioned the credibility or competence of teacher who translated said dumb witness as said teacher was an expert in his field---Expert's evidence, however was a weak piece of evidence and unless corroborated by direct or circumstantial evidence, no conviction could be based upon it.

Basharatullah for Appellant.

Sheikh Ghulam Ahmed for the State.

Date of hearing: 12th May, 2008.

PCrLJ 2008 FEDERAL SHARIAT COURT 1681 #

2008 P Cr. L J 1681

[Federal Shariat Court]

Before Syed Afzal Haider, J

RIAZ HUSSAIN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.152/I of 2007, decided on 14th May, 2008.

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

---S. 10(3)---Juvenile Justice System Ordinance(XXII of 2000), Ss.4 & 7---Appreciation of evidence---Age of accused as recorded by the Trial Court in the title of judgment was 20 years---Formal charge framed by the Trial Court and statement of accused, recorded thereafter did not disclose the age of accused; however, in one statement of accused recorded under S.342, Cr.P.C., space of age had been left blank---In second statement recorded by the same Trial Court under S.342, Cr.P.C. age of accused was recorded as 16/17 years, which would mean that on the date of alleged occurrence, accused was around 14/15/16 years of age---Observation of the Trial Court that accused was a minor at the time of occurrence, had shown that provisions of Juvenile Justice System Ordinance, 2000 were in the view of the court---Under provisions of S.7 of Juvenile Justice System Ordinance, 2000 if a question would arise as to whether a person before it, was a child for the purpose of that Ordinance, Juvenile Court would record a finding after such inquiry which would include a medical report for determination of age of the child--Trial Court was required to hold an inquiry, the moment it came to its knowledge that accused was juvenile and there was no escape from it---Cursory glance at the face of accused was sufficient to suggest that he had not come of age---Accused should be permitted to avail opportunity of claiming minority---Deprivation of the chance to claim right provided under a special law, would not be advancing the cause of justice---Conviction of accused was set aside and case was remanded to the Trial Court for fresh trial under the Juvenile law, provided the Trial Court had been notified as a Juvenile Court.

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

---Ss. 4 & 7--Jurisdiction of Juvenile Court--Scope---Juvenile Courts had been specifically set up under S.4 of Juvenile Justice System Ordinance, 2000 and Juvenile Court was to have exclusive jurisdiction to try the case in which a child was accused of the commission of an offence---Juvenile Court alone was competent to decide the issue of age---Moving an application by a juvenile under trial was not a condition precedent for conferring jurisdiction upon the court to take cognizance of the element of age under that law---As and when the court was informed that accused was a child at the time of a commission of the offence, the Trial Court was bound to adopt the procedure prescribed under the Juvenile Justice System Ordinance, 2000---Said Ordinance was a special law and would take precedence over the general law---Trial Court was required to hold an inquiry the moment it came to its knowledge that the under-trial person was juvenile and there was no escape from it.

Babar Ali v. The State PLD 2007 Lah. 650 ref.

Mehar Sardar Ahmed Abid for Appellant.

Asjad Javaid Ghural, Dy. P.-G. for the State.

Date of hearing: 14th May, 2008.

PCrLJ 2008 FEDERAL SHARIAT COURT 1694 #

2008 P Cr. L J 1694

[Federal Shariat Court]

Before Syed Afzal Haider, J

EJAZ alias JAGAN and 3 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.211/I of-2007, decided on 14th May, 2008.

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

----S. 103---Search in presence of witnesses---Purpose---Requirement of association of witnesses from public sector in recovery proceedings is to seek independent corroboration of the statement of the Police Officer effecting recoveries associated with the crime in order to obviate possibility of false implication---In case respectable independent witnesses are, in a given situation, not available or the person asked to come forward refuses to witness the recovery, then there should be evidence to that effect---Police witnesses are as good witnesses as any other witness and when none from public is available or forthcoming, then the evidence of Police Officers would be acceptable.

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

----Art. 22---Identification parade---Nature and scope---Question of identification parade arises only where the witness had no opportunity to have a good look at the accused---Identification parade as such is not a requirement of law, it is a method to test the veracity of the witness and is a relevant fact under Art.22 of Qanun-e-Shahadat, 1984---Fact that a witness identifies the accused at the trial is sufficient unless it is shown that he had no opportunity of having seen the accused before---Prosecution evidence through identification parade is not substantive piece of evidence, but it has only corroborative value.

----Ss. 392 & 411---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.20---Appreciation of evidence---Four accused had committed robbery in a coach and they had remained in the coach in the open view of the passengers for some time before leaving the coach at a deserted place---Complainant and the victim eye-witnesses, thus, could possibly preserve in their memory the faces of the accused and identify them later in the Court---Complainant was supported by eight eye-witnesses who had also been deprived of their cash and mobile in the coach by the accused and had no enmity with the accused---Direct evidence was consistent, natural and reliable---Non-recovery of money from the dacoits did not mean 'that the offence against them was not proved, as recovery was only a corroborative fact---Omission of S.34, P.P.C. did not affect the prosecution case in the absence of any prejudice having been caused to accused---Even otherwise, each accused had participated actively and played a distinctive and an independent role in the commission of the offence against specific individuals---Number of persons having been robbed by -armed persons in a public transport, had suggested the anti-social offence which did not permit exercise of any leniency towards the accused---Convictions and sentences of accused were upheld in circumstances.

Haji Khudai Dost and another v. The State 2005 PCr.LJ 520 ref.

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

----S. 34---Acts done by several persons in furtherance of common intention---Non-mention of S.34, P.P.C. with main offence---Effect---Omission to mention S.34, P.P.C. does not affect the case, if no prejudice is caused to the accused.

Haji Khudai Dost and another v. The State 2005 PCr.LJ 520 ref.

Ch. Muhammad Shafique Ahmed Khan for Appellants.

Asjad Javaid Ghural, Dy. P.-G. for the State.

Date of hearing: 9th May, 2008.

High Court Azad Kashmir

PCrLJ 2008 HIGH COURT AZAD KASHMIR 341 #

2008 P Cr. L J 341

[High Court (AJ&K)]

Before Sardar Muhammad Nawaz Khan, CJ

MUHAMMAD ZARIF and another----Petitioners

Versus

THE STATE through Advocate-General and another----Respondents

Criminal Miscellaneous No.193 of 2007, decided on 14th December, 2007.

Criminal procedure Code (V of 1898)---

----S. 561-A---Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood) Act, 1985, Ss.10, 11, 19 & 14---Quashing of F.I.R.---Prosecution was found to have negated its own story of abduction, enticement and rape etc.---Had petitioner been abducted, enticed away or raped, she could be the best witness in such a case, but by prosecuting her as accused, would mean that prosecution had no case as alleged by them---When both male and female were major and adult and they had contracted marriage of their own free-will and consent, same would constitute no offence---Prosecution by placing female spouse in the line of accused had accepted that case against accused persons was baseless---Such a case, if allowed to continue, would result into nothing, but incarceration of petitioners/accused---Medico-legal report though confirmed that she had been subjected to sexual intercourse, but it became immaterial in the backdrop of the marriage which the spouses had admitted---High Court was fully satisfied that petitioners by entering into wedlock when they were adult and major had committed no offence---High Court under S.561-A, Cr.P.C. was fully competent to quash proceedings before any court of competent jurisdiction, if High Court was convinced that it was abuse of process of the court or take any other action which was found in the interest of justice---No doubt the present case was yet to be challaned, but the police record would show that investigation was complete and no case under law, was found to have been made out against petitioners---F.I.R. stood cancelled with direction to release the accused.

Nasreen Akhtar's case 1994 PCr.LJ 2016 rel.

Sardar Shamshad Khan for Petitioners.

Sardar Muhammad Shahzad Khan and Sardar Azeem Khan, Addl. A.-G. for the Respondents.

PCrLJ 2008 HIGH COURT AZAD KASHMIR 986 #

2008 P Cr. L J 986

[High Court (AJ&IK)]

Before Rafiullah Sultani, J

GHULAM MUSTAFA----Petitioner

Versus

S.H.O. CITY POLICE STATION, ATHMUQAM, and 9 others----Respondents

Writ Petition No.75 of 2007, decided on 11th April, 2008.

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

----S. 154---Information in cognizable cases---Police officer was under statutory obligation to receive the complaint preferred to him or take down oral report, if it disclosed a cognizable offence and to investigate the same---If Police Officer failed to incorporate in the register a complaint so made, he would fair to perform his statutory duty as a public servant--Information mentioned in S.154 Cr.P.C., appeared to be something in the nature of complaint or accusation or at least information of crime given with the object of putting the law in motion.

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

----Ss. 164, 154 & 157---Recording statements and confession---Purpose of F.I.R.---Statement under S.164 Cr.P.C., could be recorded at the instance of police, but at the request of accused, the aggrieved person or the witness himself---Word 'accused' used in S.164 Cr.P.C. revealed that in absence of F.I.R., statement under S.164 Cr.P.C. could not be recorded---Purpose of F.I.R. was to give information of a cognizable offence and to set the law into motion---Other purpose of F.I.R. was to provide a reliable base for initiation of investigation of the crime in the right direction, but that would be possible only if F.I.R. was recorded---Police could not investigate the matter in absence of F.I.R. and the statement under S.164 Cr.P.C. could not be recorded during the investigation of the case, if the F.I.R. was registered.

Muhammad Ramzan v. The Station House Officer, Police Station Jahanian and others 1985 PCr.LJ 1081 rel.

----Ss. 200 & 154---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Private complaint---Registration of case---Relief of registration of case through intervention of High Court in writ jurisdiction---Scope---Under law, a statutory right was available to the aggrieved person to get a case registered and it was imperative for the Police Officer to register the case---Remedy of filing a private complaint could not take place as substitute of statutory right available to the petitioner---Relief of registration of case through the intervention of the High Court in writ jurisdiction, could not be refused.

PLD 1971 SC 677; PLD 1972 Lah. 493 and PLJ 1975 Cr.C. 368 ref.

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

----Ss. 154 & 157---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Application for lodging F.I.R.--Respondents launched an attack on the house of petitioner and killed grandson of petitioner aged 6 years---Petitioner filed application to Police Officers concerned for registration of F.I.R. against respondents, but the police with mala fide intention had failed to register F.I.R., petitioner had filed writ petition---Officer Incharge Police Station had failed to perform his legal duty in registering a case, which otherwise, prima facie disclosed a cognizable offence---S.H.O. was duty bound to register a case and then investigate the same in accordance with law---Objection raised by counsel for respondents with regard to laches was not applicable in the case---Question raised with regard to the petitioner for not being an aggrieved person, was also devoid of force because case relating to cognizable offence could be registered at the instance of any person and writ petition could also be filed by a person having such grievance---High Court, accepting writ petition directed the Police Officials to register F.I.R. in accordance with the contents of application submitted by the petitioner and same would be investigated in accordance with law.

Muhammad Ramzan v. The Station House Officer, Police Station Jahanian and others 1985 PCr.LJ 1081; 1999 PCr.LJ 1645; PLD 1997 Lah. 135; 1994 PCr.LJ 798; 2001 SCMR 424; 2004 PCr.LJ 880; 1979 SCMR 484 and 2002 MLD 1250 ref.

Mir Sharafat Hussain for Petitioner.

Hazoor Imam Kazmi and Sardar Abdus Sami Khan for Respondents.

Ms. Afsheen Aman State Counsel.

PCrLJ 2008 KARACHI HIGH COURT SINDH 16 #

2008 P Cr. L J 16

[Karachi]

Before Mrs. Qaiser Iqbal, J

MUHAMMAD----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-397 of 2006, decided on 8th August, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-L(ii), 337-A(i), 504, 148 & 149---Pre-arrest bail, grant of---Counter cases were pending between parties---Counter-version had arisen from the same incident, one given by the complainant in the first information report and other given by the opposite party---Such cases were covered for grant of bail on the ground of further inquiry and in such cases bail was to be normally granted on' that ground---Four co-accused connected by complainant in the commission of crime were admitted on pre-arrest bail by the Trial Court---Accused was also entitled to the concession of pre-arrest bail on the principle of consistency under the similar facts and circumstances---Interim pre-arrest bail already granted to accused was confirmed on the same terms and conditions as contained in interim pre-arrest bail.

Muhammad Arif v. State 2005 YLR 2350 rel.

Mumtaz Alam Leghari for Applicant.

Anwar H. Ansari for the State.

PCrLJ 2008 KARACHI HIGH COURT SINDH 29 #

2008 P Cr. L J 29

[Karachi]

Before Mrs. Yasmin Abbasey, J

SHABAN alias UMED ALI----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-259 of 2007, decided on 20th July, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.11 & 16---Bail, grant of---Further inquiry---F.I.R. was delayed by three days with no plausible explanation---Despite occurrence had taken place in presence of complainant where life and modesty of a woman might have involved, no attempt was made by the complainant to save said woman---No step was taken by the complainant to lodge F.I.R. and he, kept himself on the mercy of others with no reasonable excuse---Very conduct of the complainant had made the happening of the incident doubtful---Specific role had been assigned against other accused who was said to have been murdered---Accused along with other accomplices though was in the company of said other person, but neither he played any active role except entering in the house of the complainant, nor he was alleged to cause any injury to the complainant or the alleged abductee---Case, in circumstances appeared to be of further inquiry-Accused was admitted to bail, in circumstances.

Mumtaz Alam Leghari for Applicant.

Anwar H. Ansari for the State.

PCrLJ 2008 KARACHI HIGH COURT SINDH 38 #

2008 P Cr. L J 38

[Karachi]

Before Muhammad Moosa K. Leghari, J

BANDAH ALI ---Applicant

Versus

THE STATE----Respondent

Criminal Revision Application No.S-73 of 2007, decided on 9th October, 2007.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.337-A(ii), 353 & 430---Suspension of sentence---Application for---Prosecution case had been rendered doubtful as neither the offence of mischief by doing some act of works of irrigation or by wrongfully diverting the water had been proved nor the offence of causing any kind of injury to the complainant had been established-Punishment under S.353, P.P.C., in circumstances, was not warranted in law---Appellate Court found no evidence of tampering with or causing mischief to the works of irrigation---Conviction of applicant/accused, was set aside in circumstances by the Trial Court---Appellate Court did not find any evidence to show that applicant/accused caused any injury to the complainant or any one else with the result that accused was acquitted of the offence punishable under S.337-A(ii) P.P.C.---If the charges against accused for causing damage to the water works and causing injuries to the complainant or prosecution witness were not proved, it could not be said with certainty that accused had used criminal force against the complainant for deterring him from discharge of his duty---No punishment in that respect could be awarded to accused---Judgment of the Appellate Court which was improper and marred by infirmities could not be sustained---Accused having been acquitted for offences under Ss.337-A(ii) & 430, P.P.C.; Appellate Court's judgment to the extent of awarding conviction to accused under S.353, P.P.C. was also set aside---Accused, in circumstances was acquitted of all the charges and he was set free.

Khadim Hussain D. Solangi for Applicant.

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

PCrLJ 2008 KARACHI HIGH COURT SINDH 69 #

2008 P Cr. L J 69

[Karachi]

Before Anwar Zaheer Jamali, J

IBRAHIM----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No. S-552 of 2006, decided on 4th December, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-A(i), 337-F(i), (v), (vi), 403, 147, 148 & 149-Bail, grant of---Allegations contained in FIR. revealed that role of all the six accused in the commission of crime was more or less same except that one injury caused to father of the complainant with iron rod, had been specifically attributed to the accused-Said injury as per medical report did not fall within the prohibitory clause of S.497(i), Cr.P.C.-'--Accused was behind the bars since his arrest---Out of six nominated accused, three had been admitted to bail by the High Court, while other two had been admitted to bail by the Trial Court---Taking into consideration the nature of allegations against accused and other co-accused who had already been admitted to bail and the fact that the accused had remained in custody for over 10 months, he was admitted to bail.

Abdul Rasool Abbasi for Applicant.

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

PCrLJ 2008 KARACHI HIGH COURT SINDH 76 #

2008 P Cr. L J 76

[Karachi]

Before Mrs. Qaiser Iqbal, J

MUHAMMAD ALAM----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.883 of 2007, decided on 10th October, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860); S.392/34---Bail, grant of---Further inquiry---Previous litigation between accused and complainant had caused doubt to the credentials of the complainant and his witness---While considering bail matter of accused involved in an offence which did not fall within the prohibitory clause of S.497, Cr.P.C., Court must proceed to release accused, if sufficient grounds were available for further inquiry into the guilt of accused---Accused, in circumstances was admitted to bail.

1973 PCr.LJ 125; 2006 PCr.LJ 1628 and 2007 YLR 1144 rel.

Amir Mansoob Qureshi for Applicant.

Haji Abdul Majeed State counsel.

PCrLJ 2008 KARACHI HIGH COURT SINDH 82 #

2008 P Cr. L J 82

[Karachi]

Before Muhammad Moosa K. Leghari, J

GHULAM MUSTAFA and another---Applicants

Versus

THE STATE----Respondent

Criminal Bail Applications Nos.S-714 and 604 of 2006, decided on 4th December, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497-Penal Code (XLV of 1860), Ss.337-A(ii), 337-F(i), 504, 147, 148 & 149---Bail, grant of---Five co-accused, were already granted pre-arrest bail by the High Court---Accused were in jail for the last four months---Accused, accordingly were also granted bail.

Abdul Rasool Abbasi for Applicants.

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

PCrLJ 2008 KARACHI HIGH COURT SINDH 87 #

2008 P Cr. L J 87

[Karachi]

Before Mrs. Yasmeen Abbasey, J

MUHAMMAD ALI----Applicant

Versus

THE STATE----Respondent

Criminal Bail Applications Nos.874 and 884 of 2007, decided on 18th October, 2007.

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

--Art. 18(4)(6), proviso---Transfer of investigation---Effect---Order of transfer of investigation without assigning any reason therein and without recommendation of Board is violative of proviso to Art.18(4)(6) of Police Order, 2002---Transfer of investigation from one police station to another may not have the effect of vitiating the trial but it disrupts and jeopardizes entrenched principle of law, which may reflect adversely to the credibility of officer concerned.

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

----S. 164---Confessional statement---Delay of four days---Effect---Such confessional statement cannot be used as substantive evidence of fact, when there is clear delay of four days in recording such statement under S.164, Cr.P.C. and accused had in mind that his custody would again be remanded to police.

Muhammad Pervez and others v. The State and others 2007 SCMR 670 rel.

----S. 497(2)---Penal Code (XLV of 1860), S.302---Bail, grant of---Case of further inquiry---Blind murder---Recovery of weapon of offence and blood-stained clothes---Accused were arrested 17 days after the occurrence and police had recovered weapon of offence and blood-stained clothes from the house of accused---Validity---High Court did not believe that after committing murder of deceased, accused would have kept evidence with them for such a long time to provide proof of commission of incident against them--High Court refrained from deep appraisal and detailed discussion of evidence at bail stage to avoid prejudice to the merits of the case of either party at the trial---Case being that of further inquiry against the accused, bail was granted.

Suba Khan v. Muhammad Ajmal and 2 others 2006 SCMR 66 fol.

I.A. Usmani for Applicant (in Bail Application No.874 of 2007).

Amir Mansoob Qureshi for Applicant (in Bail Application' No.884 of 2007).

Shandat Awan for the Complainant.

Sardaruddin Qureshi for the State.

PCrLJ 2008 KARACHI HIGH COURT SINDH 106 #

2008 P Cr. L J 106

[Karachi]

Before Rahmat Hussain Jafferi, J

QADIR BUX alias KARO and 2 others----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.S-84 of 2007, decided on 25th July, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.302, ,324, 337-A(ii), 337-F(i), 114, 147, 148 & 149---Protective bail, grant of---Police during investigation did not find any tangible evidence against accused--Accused were released, but the Trial Court had joined them as accused and had issued non-bailable warrants for their arrest---Accused wanted to appear before the Trial Court and surrender themselves, but they could not do so as the police were following them for arrest---Accused had stated that protective bail could be granted to them so that they could surrender before the Trial Court---Protective bail, was granted to accused, in circumstances.

Abdul Rasool Abbasi for Applicants.

PCrLJ 2008 KARACHI HIGH COURT SINDH 113 #

2008 P Cr. L J 113

[Karachi]

Before Zafar Ahmed Khan Sherwani, J

SALEH alias MUHAMMAD SALEH----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-534 of 2007, decided on 22nd October, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Further inquiry---Case was fit for grant of bail to accused under subsection (2) of S.497, Cr.P.C. as both accused were found innocent by the Investigating Officer during investigation---Police showed names of accused in the challan, though no material evidence was available against them connecting them with the commission of the offence---Trial Court while rejecting the bail application of accused, did not consider such aspect of the case and rejected bail application on flimsy ground that their names were mentioned in the F.I.R.---Bail was granted to accused, in circumstances.

Khadim Hussain D. Solangi for Applicant.

Muhammad Azeem Panhwar, State Counsel.

PCrLJ 2008 KARACHI HIGH COURT SINDH 120 #

2008 P Cr. L J 120

[Karachi]

Before Muhammad Ather Saeed, J

ABDUL GHANI----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.152 of 2007, decided on 2nd June, 2007.

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

---S. 497(2)---Penal Code (XLV of 1860), Ss.364-A & 506/34---Bail, grant of---Further inquiry ---Initially the F.I.R. was filed under S.342/34, P.P.C. and in said F.I.R. no incident was mentioned which could be considered as an offence under S.364-A P.P.C.---Only after recording the statement of the victim under S.161, Cr.P.C. the Investigating Officer prepared the challan implicating accused under S.364-A, P.P.C.---Factual discrepancy having been found between the facts narrated in the F.I.R. and facts stated in the statement of victim under S.161, Cr.P.C. same needed further inquiry---Contents of F.I.R. revealed that complainant and accused persons were not on good terms, because in the F.I.R. complainant had stated that he had a quarrel with accused who belonged to his Baradari---Such facts narrated in the F.I.R., had contradicted the presumption of the Trial Court that complainant did not have any ill-will against accused ---Accused was allowed bail in circumstance.

Vikio v. Abdullah and another 1980 PCr.LJ 602; Saleem Akhtar v. The State PLD 1980 Lah. 127; Mst. Zuhra Bibi and Hasina Bibi v. The State 2003 PCr. LJ 1909; Khadim Hussain v. The State 1999 YLR 1817 and Zahid Parvez v. Special Judge, Special Court No. Anti-Terrorism, Bahawalpur and another 1999 YLR 1716 rel.

Muhammad Hanif Qureshi and S. Ehsan Raza for Applicant.

Sardaruddin Qureshi State Counsel.

PCrLJ 2008 KARACHI HIGH COURT SINDH 125 #

2008 P Cr. L J 125

[Karachi]

Before Mrs. Qaiser Iqbal, J

Syed ASIF MATEEN ZAIDI and 3 others----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.871 of 2007, decided on 10th October, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.319 & 322/34---Pre-arrest bail, grant of---Final challan presented did not refer to any material having been collected on the basis of investigation in place of the original allegation contained in the F.I.R.---Section 322, P.P.C. had been added with the sheer object to make out non-bailable offence---High Court had confirmed pre-arrest bail granted to co-accused as case of accused was at par to co-accused who had already been admitted on pre-arrest bail---Accused were also entitled to some concession---State counsel had conceded to the grant of pre-arrest bail in favour of accused---Taking into consideration the principle of consistency, accused were admitted on pre-arrest bail on the same terms and conditions as were contained in interim pre-arrest order.

Muhammad Nawaz for Applicants.

Haji Majeed for the State.

PCrLJ 2008 KARACHI HIGH COURT SINDH 146 #

2008 P Cr. L J 146

[Karachi]

Before Rahmat Hussain Jafferi and Syed Mehmood Alam Rizvi, JJ

SUHAIL KHAN alias SALEH MUHAMMAD----Appellant

Versus

THE STATE----Respondent

Special Criminal Appeal No.545 of 2005, decided on 2nd November, 2007.

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

----Ss. 9(c) & 36(2)---Appreciation of evidence---Sentence, reduction in---Police witnesses had supported the prosecution case unanimously without making any contradiction---Complainant police official could investigate the case himself, but such practice was deprecated and a check was directed to be placed on the activities of the police officials who were themselves becoming complainants, witnesses and Investigating Officers---Section 103, Cr.P.C. being not applicable to cases under the Control of Narcotic Substances Act, 1997, Investigating Officer was not bound to arrange private recovery witnesses, but in the present case no private person had agreed to become a witness despite his efforts---Police witnesses were as good as private witnesses unless proved by the defence to have a bias or enmity against the accused---Weight of heroin samples according to the evidence of recovery, was ten grams each while the report of the Chemical Examiner had shown the same as almost double in each sample---Such a glaring contradiction had not only made the entire weight of heroin doubtful but had also cast doubt on the very recovery itself---Oral evidence being contradictory to the chemical report, Court had to rely on the report of the Government Analyst by virtue of S.36(2) of the Control of Narcotic Substances Act, 1997---Charge against accused regarding the recovery of heroin, thus, was not proved and he was acquitted of the same---Chemical Examiner's report regarding the samples of Charas was positive which was further corroborated by oral evidence---Recovery of "Charas" from accused having been proved, his conviction for the same was upheld, but keeping in view the weight of Charas his sentence of imprisonment for life was reduced to the imprisonment already undergone by him.

PLD 1997 SC 408; Taj Wali and 6 others v. The State PLD 2005 Kar. 128; Muhammad v. The State 2003 SCMR 1017 and Muhammad Hanif v. The State 2003 SCMR 1237 ref.

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

----S. 9(c)-Appreciation of evidence---Police witnesses---Police officials are as good witnesses as private witnesses, unless the defence proves that the said police officials had a. bias or enmity with the accused.

Ahmed Ali Shah for Appellant.

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

PCrLJ 2008 KARACHI HIGH COURT SINDH 155 #

2008 P Cr. L J 155

[Karachi]

Before Zafar Ahmed Khan Sherwani, J

MASHOOQUE ALI----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-522 of 2007, decided on 23rd October, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Bail, refusal of---Accused was previously known to the complainant being his co-villager, his face was open at the time of incident and electric light was also there---Accused was seen by the complainant armed with pistol along with two unidentified accomplices---Clear allegation was that when the complainant and his deceased brother tried to apprehend accused after the robbery, he directly fired on brother of the complainant and succeeded in decamping---Nothing remained wanting with regard to the identity of accused as well as his active role in the commission of the offence---Delay of few hours in lodging F.I.R. had satisfactorily been explained by the complainant---Even otherwise, delay in present case could not be fatal because no proof existed to the effect that complainant had any enmity with accused for his false implication after deliberation---Mystery of mentioning the F.I.R. number in the post-mortem report which was conducted by the Medical Officer earlier to its registration, too could not be the sole ground for grant of bail keeping in view the other circumstances of the case---Such discrepancy could only be explained by the Doctor who had conducted the post-mortem and prepared the report---Other grounds taken by the Counsel for accused in support of the grant of bail, were also flimsy in nature which were not sufficient to hold that case of accused was within the ambit of further enquiry as provided under subsection (2) of S.497, Cr.P.C.---Bail application, was dismissed, in circumstances.

Parial v. The State 2006 PCr.LJ 1212; Khoro and others v. The State 2004 YLR 2434; Gyasuddin v. The State 2006 SLJ 179; Aamir v. The State 1972 SC 272 (sic) and Hakim Ali v. The State 1996 SCMR 1855 rel.

S. Madad Ali Shah for Applicant.

Muhammad Azeem Panhwer State Counsel.

PCrLJ 2008 KARACHI HIGH COURT SINDH 161 #

2008 P Cr. L J 161

[Karachi]

Before Khawaja Naveed Ahmed, J

Major (Retd.) HAFEEZ AHMED----Petitioner

Versus

THE STATE and another----Respondents

Criminal Acquittal Appeal No.275 of 2003, decided on 15th November, 2007.

Criminal Procedure Code (V of 1898)---

----Ss. 417(2-A) & 249-A---Penal Code (XLV of 1860), Ss.406 & 420---Appeal against acquittal---Respondent/accused against whom case was registered, was produced in the court, charge was framed against him, but prior to recording of the statement of the appellant/complainant, accused filed application before the Trial Court under S.249-A, Cr.P.C. for his acquittal, which application was accepted and accused was acquitted---Counsel for complainant and State Counsel, both had jointly argued that Trial Court's order of acquittal on the face of it, was premature as the Trial Court had not provided opportunity to complainant to examine himself in the court---Trial Court had hurriedly disposed of application filed under S.249-A, Cr.P.C. and had acquitted the accused---Validity---No doubt no impediment existed in the way of the Trial Court to acquit accused at any stage of the case---Court was empowered even to decline to frame the charge, if no charge was made out or evidence was insufficient---Every case had to be decided on its own facts, but facts of the present case were not identical to the cases in which the court had free hand to acquit accused at any stage of the case---Matter was a contested one as complainant was pursuing his case and was ready to give evidence in the court and to put himself to the cross-examination by accused or his counsel---Trial Court, in circumstances should not have acted in hurry---Courts were for both the parties--4f accused was seeking remedy from the court and was asking for the relief, at the same time, complainant was also asking and expecting from the court relief for himself---While deciding the cases, it was necessary for the Presiding Officer of the court to provide equal opportunity to both the parties as it was necessary for just decision of the case---Complainant who was anxious to get himself examined and to depose in the Court, had not been provided the opportunity by the court---Justice was not only to be done, but should appear to have been, done---Impugned order was set aside and case was remanded to the Trial Court for its disposal according to law.

Sarfaraz Ahmed Khan Tanoli for Appellant.

Fazal-ur-Rehman Awan, State Counsel.

PCrLJ 2008 KARACHI HIGH COURT SINDH 171 #

2008 P Cr. L J 171

[Karachi]

Before Rahmat Hussain Jafferi and Syed Mehmood Alam Rizvi, JJ

FAZAL-E-HADI----Petitioner

Versus

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

C.P. No. D-2088 of 2007; decided on 2nd November, 2007.

National Accountability Ordinance (XVIII of 1999)---

----S. 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Bail, refusal of---Possession of tainted money with the accused prima facie, did not need any further inquiry---Delayed statement of the complainant had not weakened the prosecution case---Accused had admitted receiving of money through his plea of bargain---Deeper appreciation of evidence could not be made at this stage and the grounds taken by accused could be thrashed out before the Trial Court---Accused was the Assistant Director in the National Accountability Bureau and was conducting an inquiry against the corrupt people-Prima facie case had been made out against the accused as he himself had offered for plea of bargaining and had filed an affidavit to pay more, amount than he had demanded and received from the complainant and others---Accused in his own handwriting had admitted all the mistakes committed by him and even requested the D.G. NAB to pardon him---Bail was declined to accused in circumstances---Constitutional petition was dismissed accordingly.

Shaukat Hussain Zubaidi for Petitioner.

Ainuddin Khan. A.D.P.G.S. for NAB.

PCrLJ 2008 KARACHI HIGH COURT SINDH 211 #

2008 P Cr. L J 211

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

ABDUL QADIR TAWAKKAL----Petitioner

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD----Respondent

Constitutional Petition No.2402 of 2006, decided on 22nd May, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), S.5(7)---National Accountability Ordinance (XVIII of 1999), S.16(a)---Constitutional petition---Bail, grant of---Case, after investigation, was challaned in the Special Court created under Offences in Respect of Banks (Special Courts) Ordinance, 1984---Pending adjudication of the case petitioner moved bail application before High Court, which was granted---On the application of Chairman NAB, case was transferred to Accountability Court which was pending, but except framing of charge, no witness had been examined by the prosecution before the Accountability Court---Petitioner was already granted bail by the High Court, but he could not furnish the required surety as he could not arrange the surety of amount involved in the case---Reasons assigned for granting bail were sufficient to grant bail---Case had not proceeded since 1996---Even the Accountability Court had not completed the trial within a period of four years after receipt of the case and no witness had been examined by it---Accountability Court under the law was required to complete the case within a period of 30-days as provided under S.16(a) of National Accountability Ordinance, 1999---Proceedings of the case had been delayed for a period of more than 10 years which amounted to abuse of process of law---Bail was granted to petitioner.

Shahab Sarki for Petitioner.

Ainuddin Khan, A.D.P.-G. for NAB.

PCrLJ 2008 KARACHI HIGH COURT SINDH 221 #

2008 P Cr. L J 221

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

ABDUL QADIR TAWAKKAL----Appellant

Versus

THE STATE----Respondent

Criminal Accountability Appeal No.17 of 2004, decided on 12th March, 2007.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 10, 16-A & 32---Appreciation of evidence---Trial Court acquitted co-accused, but convicted and sentenced accused for offence punishable under S.10 of National Accountability Ordinance, 1999---Transaction in question involved civil liability and civil suit could proceed in accordance with law to decide the said liability---Prosecution had led no cogent or convincing evidence to prove the ingredients of the offence and involvement of accused---Prosecution did not produce the order of the Bank by which amount was sanctioned---Prosecution failed to produce any document or sanction to prove the allegation of advance finance facility by the Bank for the purpose of export by the accused---No document was produced to show that amount in question was deposited in the Bank or paid to any person to clear outstanding dues---Allegation levelled by prosecution witness could have been supported and corroborated by the documentary evidence and without such documents neither the amount could have been sanctioned nor outstanding dues could have been paid---Without the production of such documents, statement of prosecution witness could not be safely relied upon---Prosecution had failed to prove case against accused---Impugned order of conviction and sentence of accused was set aside, in circumstances.

Shahab Sarki and Shafiq Ahmed for Appellant.

Shafaat Nabi Khan Sherwani, D.P.-G., Accountability, NAB for the State.

Date of hearing: 6th March, 2007.

PCrLJ 2008 KARACHI HIGH COURT SINDH 236 #

2008 P Cr. L J 236

[Karachi]

Before Rahmat Hussain Jafferi and Munib Ahmad Khan, JJ

ABDUL QADIR TAWAKKAL----Appellant

Versus

THE STATE----Respondent

Criminal Accountability Appeal No.14 of 2004, decided on 3rd March, 2007.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(iii), (ix), (xi), 10, 15 & 32---Appreciation of evidence---Main allegation against the appellant was that he had opened a Trust and Banking Corporation in Turkey and through said Bank he committed the fraud and misappropriated the amount---One of the prosecution witnesses on whose evidence prosecution had relied upon, had produced the Special Power of Attorney which was allegedly executed by the appellant---Perusal of said document had revealed that it was not executed by the appellant---Statement of said witness had neither been supported nor was corroborated--- Power of Attorney was executed in Pakistan and no endorsement of Embassy of Pakistan like the endorsement of Turkish Government was found thereon---No document or notification from Pakistan or Turkish Government had been produced to examine whether a Special Power of Attorney executed in Pakistan .could be used in Turkey-Neither the prosecution witnesses specified the date when appellant approached for opening the Bank nor they specified the date of reaching at Cyprus, nor specified the date when appellant deposited amount nor specified the date of opening the alleged Bank--Said Bank allegedly having been opened in Turkey, it must have been registered in the relevant department---Documents of registration could have been produced to show as to who was the owner of the Bank, but the prosecution did not produce said documents to establish the ownership of the Bank---Matter in question otherwise was pending before the civil court---Civil liability would continue and was required to be decided in accordance with law and evidence produced before the civil court---Appellant being merely a guarantor, provisions of S.10 of National Accountability Ordinance, 1999, were not attracted unless ingredients of the offence under said section were made out, but those were lacking in the case---Prosecution having failed to prove the case against appellant, appeal against conviction and sentence of appellant was allowed.

Kaka Kishan Chand v. State PLD 2004 Kar. 618 ref.

Shahab Sarki for Appellant.

Ainuddin Khan, A.D.P.G.A., NAB for the State.

Date of hearing: 20th February, 2007.

PCrLJ 2008 KARACHI HIGH COURT SINDH 412 #

2008 P Cr. L J 412

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

Syed KASHIF NAQVI and 3 others----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.298 of 2007, decided on 17th April, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Bail, grant of---Delay of 84 hours in lodging F.I.R. was not explained properly---Complainant was not owner of property, but he had left rented premises after termination of tenancy---Counter-suits between accused and complainant regarding such property were pending in Civil Court---Accused had filed suit ten (10) days before occurrence---Interim bail granted to accused was confirmed in circumstances.

Fiaz H. Shah for Applicants.

Haji Abdul Majeed for the State.

2008 P Cr. L J 507

[Karachi]

Before Arshad Noor Khan, J

MUHAMMAD YOUNUS----Appellant

Versus

THE STATE and 3 others----Respondents

Criminal Acquittal Appeal No.40 of 2007, decided on 18th January, 2008.

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

----S. 302/34---Criminal Procedure Code (V of 1898), S.164---Qanun-e-Shahadat (10 of 1984), Art.39---Appreciation of evidence---Confessional statement of accused, reliance of prosecution upon---Medical evidence regarding number of injuries sustained by deceased being completely in derogation of confessional statement of accused---Nothing on record to corroborate such statement of accused---Held: such confessional statement could not be treated as sufficient and reliable evidence to convict accused.

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

----S. 164---Concession---Confessional statement of accused must be supported and corroborated through some independent and reliable evidence to rely upon same for his conviction.

----S. 164---Confession---Exculpatory confessional statement of accused---Evidentiary value---Such statement could not be used against co-accused for purpose of conviction.

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

----S. 164---Qanun-e-Shahadat (10 of 1984), Art.39---Confessional statement of accused, recording of---Failure of Magistrate to introduce himself to accused to be a Magistrate---Failure of Magistrate to inform accused that he was produced before him for recording confessional statement, which he was not bound to record, and in case, he was inclined to record such statement, then same might be used as evidence against him; and if he recorded confessional statement or not, he would not be sent in police custody again---Failure of Magistrate to inspect body of accused to ascertain as to whether any torture was committed on him by police or not for extracting his confessional statement---Effect---Confessional statement of accused recorded by Magistrate without fulfilling all such requirements and completion of reflection period would have no lawful sanctity and could not be relied upon---Principles.

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

----S. 302/34---Appreciation of evidence---Crime weapon not secured at instance of accused, but secured by Investigating Officer while lying near deceased---Validity---Such recovery could not be used as piece of evidence against accused---Principles.

Muhammad Rashid for Appellant.

Muhammad Ayaz Khan for Respondent No. 1.

Dilawar Hussain for Respondents Nos.2 and 3.

Amanullah Khattak for Respondent No.4.

Date of hearing: 18th January, 2008.

PCrLJ 2008 KARACHI HIGH COURT SINDH 647 #

2008 P Cr. L J 647

[Karachi]

Before Dr. Rana Muhammad Shamim and Ghulam Dastagir A. Shahani, JJ

GHOUS ALI----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-476 and M.A. No.1911 of 2006, decided on 30th January, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Further inquiry---Infirm person---Accused aged 72 years was behind the bars for the last 22 months without any justification and without trial, which amounted to punishment before judgment---No legal and moral justification existed to keep accused in prison for an indefinite period---Old age of accused would come within the definition of "infirm person" which entitled him to the grant of bail---Case of accused being of further inquiry, he was entitled to the concession of bail under subsection (2) of S.497 Cr.P.C. as well as being "infirm person" under first proviso to subsection (1) of S.497 Cr.P.C.---Accused was admitted to bail, in circumstances.

State v. Malik Mukhtiar Ahmed Awan 1991 SCMR 322; Muhammad Sadiq and others v. The State 1990 SCMR 1654; Attaullah and 3 others v. The State 1999 SCMR 320; Faraz Akram v. State 1996 SCMR 1360; Ghulam Abbas alias Abbasi and others v. State PLD 2005 Kar. 255 and Muhammad Ramzan v. Zafarullah and others 1986 SCMR 38p rel.

Abdul Mujeeb Pirzada for Applicant.

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

PCrLJ 2008 KARACHI HIGH COURT SINDH 652 #

2008 P Cr. L J 652

[Karachi]

Before Dr. Rana Muhammad Shamim, J

ALI GOHAR and 5 others----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.380 of 2007, decided on 20th February, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Ad interim pre-arrest bail, confirmation of---Role attributed to accused persons was not different from the role attributed to co-accused who were granted bail---Accused persons were also entitled to the grant of bail on the principle of consistency---Interim pre-arrest bail, already granted to accused persons, was confirmed on same terms and conditions, in circumstances.

Muhammad Ramzan v. Zafar Ullah and. another 1986 SCMR 1380 and Muhammad Afzal alias Bodi v. The State 1979 SCMR 9 rel.

Qurban Ali Malano for Applicants.

Muhammad Mehmood S. Khan Yousifi, Asstt. A.-G. for the State.

PCrLJ 2008 KARACHI HIGH COURT SINDH 661 #

2008 P Cr. L J 661

[Karachi]

Before Munib Ahmad Khan, J

HAJI AHMED----Applicant

Versus

Mst. ZAINAB and 5 others----Respondents

Criminal Miscellaneous Application No.203 of 2006, decided on 13th June, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/107---Application for cancellation of bail---Main evidence brought forward by the complainant was his presence at the place of incident as well as of his brother-in-law, but that very evidence had been controverted by the wife of deceased in her statement under S.161 Cr.P.C.---Trial Court had also scrutinized the memo. of place of incident which did not point out the place where the witnesses were standing at the time of incident---Said piece of evidence available from the document of the prosecution was very much material to put the case within the meaning of further inquiry---Bail could not be denied as punishment---Application for cancellation of bail granted to accused having no force was dismissed.

Khawaja Naveed Ahmed for Applicant.

Afsheen Aman for the State.

PCrLJ 2008 KARACHI HIGH COURT SINDH 667 #

2008 P Cr. L J 667

[Karachi]

Before Muhammad Sadiq Laghari, J

MUHAMMAD FAISAL---Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.316 of 2005, decided on 9th September, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 410 & 426---Delay in filing appeal---Condonation of---Suspension of sentence---Contention of the appellant was that he was citizen of Pakistan and was born here---Appeal though was belated, but the question involved in it was important specially when the parents of appellant possessed computerized N.I.Cs.---Appellant stated that due to financial constraint he could not engage counsel and filed appeal in time---Delay was condoned in the interest of justice and appeal was admitted for hearing---Period of imprisonment of appellant though had already expired, but second part of punishment in shape of deportation awaited its execution---Appeal having been admitted for hearing, sentence of deportation awarded to appellant was suspended till its decision---Appellant was directed to be released on furnishing the surety.

Jameel Ahmed Wirk for Appellant.

Habibur Rasheed for the State.

PCrLJ 2008 KARACHI HIGH COURT SINDH 673 #

2008 P Cr. L J 673

[Karachi]

Before Ali Sain Dino Metlo, J

GHAZI SARFRAZ----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.57 of 2008, decided on 13th February, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.397---Bail, grant of---Conduct of the Investigating Officer in getting accused identified by the complainant at his house, instead of arranging the test identification parade in presence of a Magistrate, was highly objectionable and militated against fairness of the investigation and reasonableness of the ground put forward for believing accused guilty of the offence---Accused who, in circumstances, was entitled to bail, was released on bail.

Jamil Ahmed Virk for Applicant.

Pervez Ahmed Memon, State Counsel.

PCrLJ 2008 KARACHI HIGH COURT SINDH 676 #

2008 P Cr. L J 676

[Karachi]

Before Bin Yamin, J

SHAH NAWAZ----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-593, M.A. Nos.2045 and 2046 of 2007, decided on 6th February, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 384, 147, 148 & 149---Bail, refusal of---Name of accused found place in the F.I.R., which showed that at the relevant time accused was armed with iron rod and he also used same in the commission of the offence---Said iron rod was recovered subsequently on the pointation of accused---Nothing was available on record to show that complainant party had any motive or reason to falsely implicate accused in the case---Case was at preliminary stage and evidence of none of the prosecution witnesses had been recorded---Court, at bail stage. could not undertake deeper appreciation of the evidence of the prosecution---Reasonable grounds existed to believe that accused was involved in the commission of the offence for which punishment provided was death or imprisonment for life---Case falling within the prohibitory clause of S.497 Cr.P.C., bail application was dismissed.

Muhammad Aslam v. State PLJ 1996 SC 156(sic) ref.

Jaffar v. State 1980 SCMR 784 and Haji Gulu Khan v. Gul Daraz Khan 1995 SCMR 1765 rel.

Abdul Fatah Malik for Applicant.

Muhammad Azeem Panhwar for the State.

PCrLJ 2008 KARACHI HIGH COURT SINDH 684 #

2008 P Cr. L J 684

[Karachi]

Before Mrs. Yasmin Abbasey, J

KHIZAR HAYAT----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.1274 of 2006, decided on 18th April, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.420, 468, 471 & 467---Bail, grant of---Allegations of previous enmity between accused and Police Officer concerned appeared on record---Applications moved by wife of accused who too was a police personnel, to different authorities against. malicious act of said Police Officer against accused was also a part of the record, which had not been specifically denied by the State counsel---Prosecution had also failed to clarify as to how the recovery of forged documents and machine from the house other than the house occupied by accused could be foisted on accused with no satisfactory proof---None of the witnesses of the locality where search was made and alleged recovery was said to have taken place, was associated with the prosecution---Prima facie accused had a case for grant of bail---Accused, in circumstances, was entitled to bail.

Zakir Hussain Khaskheli for Applicant.

Ms. Afsheen Aman for the State.

PCrLJ 2008 KARACHI HIGH COURT SINDH 721 #

2008 P Cr. L J 721

[Karachi]

Before Abdur Rahman Faruq Pirzada, J

IBRAHIM KHALTI----Applicant

Versus

THE STATE----Respondent

Criminal Bail Applications Nos.536 and 469 of 2007, derided on 25th February, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Penal Code (KLV of 1860), Ss.342, 406, 420, 448, 506/2, 147, 148 & 149---Bail, grant of---Civil litigation existed between the parties regarding agricultural lands---Two civil suits filed by one of the accused persons were still pending in the civil court and some evidence had also been led in those cases---Said suits were stated to be in connection with the title of the lands---Considerable delay had taken place on the part of complainant in approaching the court of Justice of Peace for filing the application---After registration of F.I.R. investigation was conducted by Investigating Agency, as a result of which 'case was recommended to be disposed of in false B-class---Presumption was that as a result of investigation the police found accused persons to be innocent---Fact that during investigation accused persons were found to be innocent, would also lend support to the case of accused persons---Accused persons were entitled to concession of bail in circumstances---Interim bails granted to accused persons were confirmed on the same terms, whereas one of accused persons was allowed bail after arrest, in circumstances.

Haji Naseem Gul v. State 2007 PCr.LJ 602; Abid Hussain v. State 2007 YLR 1177; Ghulam Murtaza Qureshi v. State 1990 PCr.LJ 323; Ghulam Abbas v. State 1990 PCR.LJ 945; Munoo alias Manthar and 3 others v. State 2006 YLR 3088; Abdul Ghani v. State 1986 SCMR 1176; Meenhal and others v. State 2007 MLD 214; 2004 SCMR 1375; 2005 PCr.LJ 1025; 2003 SCMR 68 and 2000 SCMR 1599 rel.

Awan Rehmatullah Nadeem for Applicants (in both applications).

Ashique Illahi N. Baloch for the Complainant (in both cases).

Nisar Ahmed G. Abro, State Counsel.

PCrLJ 2008 KARACHI HIGH COURT SINDH 730 #

2008 P Cr. L J 730

[Karachi]

Before Abdur Rahman Faruq Pirzada, J

HAJI KHAN and another----Applicants

Versus

THE STATE----Respondent

Criminal Bail Applications Nos. S-66 of 2008 and 575 of 2007, decided on 26th February, 2008.

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

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 337-A(i), 337-F(i), 147, 148 & 149---Bail, refusal of---As a result of firing which continued for ten minutes, two persons were killed and three were injured, which would strongly suggest the common intention on the part of accused persons to commit alleged offence---According to Mashirnama of Vardat, several empties of bullets and .12 bore cartridges were recovered, which corroborated the fact that several shots were fired at the time of commission of Vardat---Both accused persons were named in F.I.R. with their respective weapons of offence---Both accused persons fired at the complainant party indiscriminately for about ten minutes---Case of accused persons being not fit for grant of bail, their bail application was rejected.

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

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 337-A(i), 337-F(i), 147, 148 & 149---Bail, grant of---Case of accused persons stood on different footing from that of co-accused whose bail application was rejected---Both accused persons were not named in the F.I.R. and they were implicated in the case only on the basis of foot-prints test, which was held after the lapse of about 16 days of the incident-Such piece of evidence could not carry any weight in the eyes of law being the weakest type of evidence---Accused persons, who were not previously known to the complainant party, were not put to the identification test, so that the complainant party might have identified them---State Counsel had rightly conceded to the grant of bail to accused persons---Accused persons being entitled to concession of bail; they were admitted to bail, in circumstances.

Kak alias Abdul Razzaq v. The State PLD 1965 (W.P.) Kar. 31; Shafi Muhammad v. The State PLD 1971 Kar. 721 and Shafu alias Shafi Muhammad v. The State 1971 SCMR 200 rel.

Safdar Ali Bhutto for Applicants.

Nisar Ahmed Abro, State Counsel.

PCrLJ 2008 KARACHI HIGH COURT SINDH 736 #

2008 P Cr. L J 736

[Karachi]

Before Abdur Rahman Faruq Pirzada, J

NAZROO alias NAZAR MUHAMMAD----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.244 of 2007, decided on 26th February, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Bail, grant of---Ground of hardship---Accused was confined in jail since 14-7-2003 and case had not been concluded---Complainant as well as prosecution witnesses had not been examined, even after the direction was given by the High Court---In the attending circumstances, the conclusion of trial did not seem to be likely in near future---Accused had already remained in jail for more than 4 and half years; it was the right of every under-trial prisoner to have expeditious trial and no person could be allowed to remain in jail for an indefinite period due to lapse on the part of prosecution---Accused being entitled to the concession of bail, was released on bail, in circumstances.

Guloo alias Gul Muhammad v. The State 2005 PCr.LJ 715; Liaquat Ali v. The State 2005 PCr.LJ 1714; Gul Beg alias Nangi v. The State 2005 PCr.LJ 147; Chakde v. The State 2005 PCr.LJ 557; Ghulam Abbas alias Abbasi and others v. The State PLD 2005 Kai. 255 and Muhammad Aslam v. The State 1999 SCMR 2147 rel.

Habibullah G. Ghauri for Applicant.

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

PCrLJ 2008 KARACHI HIGH COURT SINDH 772 #

2008 P Cr. L J 772

[Karachi]

Before Abdur Rahman Faruq Pirzada, J

SOHRAB----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.557 of 2007, decided on 12th March, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)-Penal Code (XLV of 1860), Ss.302, 324, 114, 147 & 149---Bail, grant of---Further inquiry---Accused who was a man of advanced age of 73/74 years, was also physically very weak---Accused was shown to be empty handed at the time of incident in F.I.R. and only role assigned to him was that of instigating the accused---Matter required consideration as to whether a person of very advanced age and in a weak state of health and also being empty handed, could have harboured any common intention for the commission of alleged offence---Matter would certainly require evidence at the stage of trial to find out whether accused was vicariously liable for the alleged offence---Question of vicarious liability could not be determined at bail stage---State Counsel had raised no objection to grant of bail to accused---Accused was allowed bail, in circumstances.

Mumtaz Hussain and 5 others v. The State 1996 SCMR 1125; Attaullah and 3 others v The State 1999 SCMR 1320; Rajib and 2 others v. The State 2001 PCr. LJ 701; Faraz Akram v. The State 1999 SCMR 1360; Muhammad v. The State 1998 SCMR 454; Shafi Muhammda v. The State 1999 PCr.LJ 890 and Rajib and 2 others v. The State 2001 PCr.LJ 705 ref.

Asif Ali Abdul Razzak Soomro for Applicant.

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

PCrLJ 2008 KARACHI HIGH COURT SINDH 778 #

2008 P Cr. L J 778

[Karachi]

Before Khalid Ali Z. Qazi, J

NASRULLAH KHAN----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-73 of 2008, decided on 5th March, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.406---Bail, grant of---Further inquiry---Complainant had failed to provide any documentary evidence to connect accused with the commission of alleged crime---Merits of the case against accused could be determined only after evidence was led by the parties, which was out of domain of High Court---Case was of further inquiry---Due to lack of evidence to bring the case under the purview of S.406 P.P.C., accused was granted bail.

Ijaz Akhtar v. The State 1978 SCMR 64; Raza Muhammad Sial v. The State 1988 SCMR 1223; Shakil-ur-Rehman Hamidi v. Government of Sindh and others 1995 SCMR 35; Abdul Hay-uz-Zafar v. The State 1983 PCr.LJ 2010; Mir Shoukat Iqbal v. The State NLR 1997 Criminal 209; Pirak v. The Slate 1997 PCr.LJ 1900 and Masood Baghpati and another v. The State 1999 PCr.LJ 1648 ref.

Ayaz Hussain Tunio for Applicant.

Mashooq A. Samoo, Asstt. A.-G., Sindh along with Investigating Officer/S.-I.P. Muhammad Sharif of Police Station Bhitai Nagar.

PCrLJ 2008 KARACHI HIGH COURT SINDH 863 #

2008 P Cr. L J 863

[Karachi]

Before Mrs. Qaiser Iqbal and Syed Mahmood Alam Rizvi, JJ

THE STATE through Collector----Appellant

Versus

Syed MASROORUN NABI and 4 others----Respondents

Criminal Acquittal Appeal No.98 of 2005, decided on 7th March, 2008.

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

----S. 417---Appeal against acquittal---Appraisal of evidence---Principles---Standard of assessing evidence in an appeal against acquittal is quite different from that laid down in an appeal against conviction---Manner and procedure of appraisal of evidence in an appeal against conviction is strict, but in an appeal against acquittal such a rigid method of appraising evidence is not used, because Trial Court had already given a finding of acquittal after proper analysis of record---Interference in appeal against acquittal is made only when gross misreading of evidence amounting to miscarriage of justice, is done by Trial Court.

Muhammad Usman and 2 others v. The State 1992 SCMR 498 and State v. Muhammad Sharif and others 1995 SCMR 635 ref.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal---Prosecution had failed to prove the very foundation of its case as none of the witnesses had stated in the Court that he had seen anybody in the yard near the container on the relevant night, hence, the presumption that the accused had inducted the contraband in the container had not been proved---Admittedly presence of any accused in the Mashirnama was not shown, whereas to the contrary names of the accused were mentioned in the F.I.R. and they were shown present at the time of opening of the container and the contraband was recovered in their presence---Officials appearing as witnesses had not corroborated their own case and non-inducting of the customs officials in the case clearly showed that the investigations were partial and biased---Container remained in possession of the complainant agency for twelve hours without any justification and explanation---Trial Court had given valid and cogent reasons for acquittal of accused on benefit of doubt Impugned judgment was based on proper appreciation of evidence and called for no interference---Appeal against acquittal of accused was dismissed in circumstances.

Muhammad Usman and 2 others v. The State 1992 SCMR 498 and State v. Muhammad Sharif and others 1995' SCMR 635 ref.

Ahmed Khan Bugti for Petitioner.

Nadeem Qureshi for Respondents Nos.2 to 4.

S.M. Iqbal for Respondent No.5.

Date of hearing: 30th January, 2008.

PCrLJ 2008 KARACHI HIGH COURT SINDH 967 #

2008 P Cr. L J 967

[Karachi]

Before Mrs. Qaiser Iqbal and Syed Mahmood Alam Rizvi, JJ

KHALILULLAH JAN SARHANDI and another----Petitioners

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD, and another----Respondents

Constitutional Petitions Nos.D-2420, D-2422 and D-2470 of 2007, decided on 1st April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---National Accountability Ordinance (XVIII of 1999), Ss.9(a)/10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Pre-arrest bail, grant of---Although deep scrutiny of the allegations raised by the parties was not permissible in law, yet the accused claimed to be bona fide purchasers of the subject land and upon its cancellation had resorted to filing an appeal before the Board of Revenue---Allegations contained in the reference had clearly shown that the accused had not acquired any financial gain for themselves---One of the accused had verified his deed under S.42 of the West Pakistan Land Revenue Act, 1967---Case of prosecution when kept in juxtaposition to the case of accused, the latter would require further inquiry into the guilt of accused---In order to avoid unnecessary humiliation and harassment to accused, they were entitled to the concession of pre-arrest bail---Interim pre-arrest bail granted to accused was confirmed in circumstances.

Choudhry Shujat Hussain v. The State 1995 SCMR 1249; Hisamuddin v. The State Bail Application No.181 of 1999 and Saeed Ahmed v. The State 1994 SCMR 170 rel.

Shahab Sarki for Petitioners (in C.P. No.D-2420 of 2007).

Muhammad Ashraf Kazi for Petitioners (in C.P. No.D-2422 and C.P. No.D-2470 of 2007)

Asif Rashid for NAB.

PCrLJ 2008 KARACHI HIGH COURT SINDH 979 #

2008 P Cr. L J 979

[Karachi]

Before Agha Rafiq Ahmed Khan, J

NASEER KHAN ----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.394 of 2002, decided on 16th April, 2008.

Penal Code (XLV of 1860)---

----S. 320---Appreciation of evidence---Benefit of doubt---Major contradictions in prosecution evidence had created doubt as to whether the present accused was arrested from the spot on the day of accident or whether some other person was arrested on that day and was let off subsequently by police and, thereafter, the present accused was involved in the case---Accused, thus, was entitled to benefit of doubt and he was acquitted accordingly.

Aman Khattak for Appellant.

Munir Bux Bhutto for the State.

Date of hearing: 1st April, 2008.

PCrLJ 2008 KARACHI HIGH COURT SINDH 984 #

2008 P Cr. L J 984

[Karachi]

Before Mrs. Yasmin Abbasey and Syed Mahmood Alam Rizvi, JJ

MUHAMMAD ISHAQ LASHARI and another----Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman, NAB and another----Respondents

Constitutional Petitions Nos.183 and 184 of 2008, decided on 28th March, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Constitution of Pakistan (1973), Art.199---National Accountability Ordinance (XVIII of 1999), Ss.9/10---Constitutional petition---Bail, grant of---Accused had made complaints regarding the loss of cheques and had placed the copies of complaints on record, which had made the case against them doubtful and of further inquiry---Trial of sixty nine accused persons would consume reasonable time to conclude---Meagre amount was involved in the case---Accused were lower grade teachers who were the beneficiaries and they could not be kept in jail for indefinite period---Accused were admitted to bail in circumstances.

Ms. Noor Naz Agha for Petitioners.

Ainuddin Khan, A.D.P.G. NAB along with Asif Rasheed for Respondents.

Date of hearing: 17th March, 2008.

PCrLJ 2008 KARACHI HIGH COURT SINDH 1321 #

2008 P Cr. L J 1321

[Karachi]

Before Zia Perwez, J

SAHIB KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.478 of 2007, decided on 3rd October, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324/34, 224, 225, 225-A & 353---Bail, grant of---Contention of counsel for accused was that accused had been in custody since last 10 years and at the time of incident III Proviso to S.497(1), Cr.P.C. was in force for allowing bail on ground of delay and was attracted to the case---Validity--Accused had remained in custody for a period of about 10 years and order of Supreme Court for recording of evidence of at least three witnesses had not been complied with---Ground of delay was available as the offence took place when amendment in 3rd Proviso to S.497(1), Cr.P.C, had not been effected---Said provision though did not guarantee for release on bail, but each case possessed its own merits---In the present case ample opportunity was granted to the prosecution to ascertain any delay attributable to accused, but statement had been made by prosecution that delay was not attributable to the accused---No material connecting accused with commission of the offence was available, except statement of co-accused before police officer---Bail was granted to accused on ground of delay.

Muhammad Ilyas Khan along with Muhammad Farooq for Applicant.

Haider Sheikh for the State.

2008 P Cr. L J 1339

[Karachi]

Before Mrs. Qaiser Iqbal and Syed Mehmood Alam Rizvi, JJ

THE STATE/ANTI-NORCOTICS FORCE through Deputy Director (Law)---Appellant

Versus

KHAWAR FAYYAZ and another---Respondents

Criminal Miscellaneous Application No.239 of 2007, decided on 24th April, 2008:

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

----S. 497(5)---Bail, cancellation of---Scope and recognized grounds for cancellation of bail enumerated---When bail has been granted by a court of competent jurisdiction then strong and exceptional grounds are required for its cancellation---Legitimate grounds recognized for cancellation of bail are if the bail granting order is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice; that some fresh facts or material has been collected by the police during investigation, which may tend to establish or point out the guilt of accused; that accused misuses his liberty by indulging in similar criminal activity; that accused interferes with the course of investigation; that accused tampers with prosecution evidence; that accused is likely to leave the country and that accused escapes by going underground or becomes not available to the investigating agency.

1999 PCr.LJ 174 ref.

(b) 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---Accused had been attributed specific role of having deprived the complainant of huge amount and were found guilty during investigation---Accused could not claim bail as a matter of right if the offence with which they were charged did not fall within the prohibitory clause of S.497, Cr.P.C.---No illegality or patent infirmity on the face of record resulting in miscarriage of justice was pointed out in the impugned bail granting order---Petition for cancellation of bail was dismissed in limine in circumstances.

1999 PCr.LJ 174 and Qadarmand v. Muhammad Amroze and 4 others 1998 SCMR 496 ref.

Ashfaq Hussain Rizvi, S.S.P. for A.N.F.

2008 P Cr. L J 1378

[Karachi]

Before Bin Yamin, J

HUSSAIN HAQQANI----Applicant

Versus

THE STATE----Respondent

Criminal Revision Application No.73 of 2002, decided on 21st May, 2008.

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

----S. 5(2)-Penal Code (XLV of 1860), S.409---Criminal Procedure Code (V of 1898), S.561-A---Quashing of proceedings---Long delay of more than three years in lodging the F.I.R. was not explained---Case against accused had been prepared with active collaboration of the I.-G. Police---Complainant had admitted that the accused as Managing Director of House Building Finance Corporation was empowered to invest the amount upto Rupees ten million under the Rules---Whole amount of Rupees ten million invested by the accused in the Investment Bank had admittedly been received back by the said House Building Finance Corporation---Directors of the Corporation had no objection with regard to the said investment made by accused when the matter was placed before the Board of Directors, who had even approved the investment having been made in good faith---Aforesaid admissions made by the prosecution witnesses in their cross-examination had not been disputed by the State Counsel---Material available on record had fully supported the fact that the accused had been victimized because of his political differences with the regime when the case was registered against him---Proceedings initiated on the basis of said F.I.R. and pending in the Special Court were quashed, in circumstances and accused was acquitted accordingly.

Adnan Karim for Applicant.

Rizwan Ahmed Siddiqui, Dy.A.-G. for the State.

PCrLJ 2008 KARACHI HIGH COURT SINDH 1395 #

2008 P Cr. L J 1395

[Karachi]

Before Khalid Ali Z. Qazi, J

INAYAT ALI----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-207 and M.A. No.515 of 2008, decided on 27th May, 2008.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/504/34---Bail, grant of---F.I.R. suffered from a long delay of sixteen hours which had not been plausibly explained---Great hardship had been caused to accused due to inordinate delay in conclusion of the trial---Material contradiction and glaring discrepancies were present in the statements of the complainant and other prosecution witnesses recorded so far by Trial Court---Case had been adjourned time and again without any further progress---State Counsel had conceded that delay in commencement and conclusion of trial could not be attributed to the accused---Accused was continuously in jail for the last more than three and a half years and case could not proceed in the absence of record which was stated to have been burnt---Keeping in view the hardship inflicted upon the accused bail was granted to him---Petition was disposed of accordingly.

Abdul Hameed and 2 others v. The State 2003 MLD 19; AIR 1941 Sindh 186; AIR 1942 Cal. 219; PLD 1955 Sindh 227 and 2000 SCMR 107 ref.

(b) Administration of justice---

----Disposal of criminal cases---Criminal case must be disposed of without unnecessary delay---Inordinate delay in imparting justice is likely to cause erosion of public confidence in the judicial system on one hand and on the other hand it is bound to create a sense of helplessness, despair, feelings of frustration and anguish apart from adding to the woes and miseries of the public.

Abdul Hameed and 2 others v. The State 2003 MLD 19 ref.

Abdul Rasool Abbasi for Applicant.

Nisar Ahmed G. Abro, State Counsel.

PCrLJ 2008 KARACHI HIGH COURT SINDH 1414 #

2008 P Cr. L J 1414

[Karachi]

Before Ali Sain Dino Metlo and Arshad Noor Khan, JJ

ISRAR AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.D-79 of 2007, decided on 22nd May, 2008.

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

----S. 9(c)---Appreciation of evidence---Testimony of eye-witnesses including the complainant Excise Inspector was consistent regarding recovery of fourteen Kilograms of "Charas" from the accused in the shape of fourteen plastic bundles of one Kilogram each---Evidence of police officials could be treated as good as evidence of other independent witnesses, who had no mala fides against the accused---Evidence regarding recovery of such a huge quantity of "Charas" from the accused had not been damaged despite lengthy cross-examination of prosecution witnesses---Trial Court still had relied upon recovery of only two Kilograms of "Charas" which had been sent to Chemical Examiner for report and was found to be "Charas", and had given benefit to the accused regarding the remaining twelve Kilograms of "Charas---Conviction and sentence of accused were maintained in circumstances.

Naseer Ahmed v. State 2004 SCMR 1361 ref.

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

----S. 9(c)---Evidence---Police witnesses, credibility of---Evidence of Police Officials may be treated as good as evidence of other independent witnesses, who have no mala fides against the accused and their testimony is not damaged in cross-examination.

Naseer Ahmed v. State 2004 SCMR 1361 ref.

Appellant present (in person).

Nisar Ahmed Abro for the State Counsel.

Date of hearing: 22nd May, 2008.

PCrLJ 2008 KARACHI HIGH COURT SINDH 1432 #

2008 P Cr. L J 1432

[Karachi]

Before Ali Sain Dino Metlo and Arshad Noor Khan, JJ

MUHAMMAD ISMAIL----Appellant

Versus

THE STATE----Respondent

Criminal Jail Appeal No.83 of 2005, decided on 22nd May, 2008.

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

----S. 9(c)---Appreciation of evidence---Sentence, reduction in---No particulars of enmity had been brought on record by the accused against the prosecution witnesses---Recovery of five Kilograms "Charas" from the accused had been proved by consistent prosecution evidence, which could not be shaken in cross-examination-Even a slight discrepancy could not be pointed out in evidence to cast doubt on prosecution version with regard to the implication of accused in the crime---Chemical Examiner had given positive report about the sample of "Charas" sent to him, which was even not seriously disputed by the defence---Plea taken by accused in his defence of being innocent in the case did not inspire-confidence for the simple reason that such a huge quantity of "Charas" could not be foisted by the prosecution upon any innocent person---Conviction of accused was maintained accordingly---Accused had himself argued his appeal who was more than 55 years old and seemed to be an infirm person---Sentence of accused was substantially reduced in circumstances.

Appellant in person.

Nisar Ahmed G. Abro State Counsel.

Date of hearing: 22nd May, 2008.

PCrLJ 2008 KARACHI HIGH COURT SINDH 1447 #

2008 P Cr. L J 1447

[Karachi]

Before Khalid Ali Z. Qazi, J

ALTAF HUSSAIN alias ALTAF---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-57 of 2008, decided on 27th May, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances, Act (XXV of 1997), S.9(b)---Bail, grant of---Accused had already been granted bail in the main case---"Charas" according to prosecution case had been recovered in shape of pieces, but sample was not taken from each piece and still it was not determined whether the pieces of material recovered from accused were actually "Charas" or not---When police party entered into the quarter they had found two persons sitting on different cots and main contention was that total 1000 grams of "Charas" was not recovered from the exclusive possession of accused, which was lying on the cot---Case of accused required further probe regarding his guilt---Bail was allowed to accused in circumstances.

Parvez Ahmed v. The State PLD 2008 Kar. 16; 2003 PCr.LJ 540; 2006 MLD 1961 and 2006 PCr.LJ 1080 ref.

Ali Murad Abro for Applicant.

Naimatullah Bhurgri State Counsel.

PCrLJ 2008 KARACHI HIGH COURT SINDH 1453 #

2008 P Cr. L J 1453

[Karachi]

Before Khalid Ali Z. Qazi, J

ANWAR ALI CHANDIO----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.273 of 2008, decided on 28th May, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.324/353/401/34-Pre-arrest bail, grant of---Abscondence of accused itself was not sufficient for recording his conviction, as the same could never remedy the defect in the prosecution case being' not necessarily indicative of his guilt---Co-accused had already been acquitted by Trial Court---Prima facie, no incriminating material was available on record to connect the accused with the alleged offence---State Counsel had rightly conceded to the grant of bail to the accused---Pre-arrest bail was allowed to accused VI circumstances.

Muhammad Khan and another v. The State 1999 SCMR 1220 ref.

Ahsan Ahmed Qureshi for Applicant.

Azizul Haq Solangi, Asstt. A.-G. for the State.

PCrLJ 2008 KARACHI HIGH COURT SINDH 1463 #

2008 P Cr. L J 1463

[Karachi]

Before Mrs. Qaiser Iqbal and Syed Mahmood Alam Rizvi, JJ

NIAZ A. BALOCH----Petitioner

Versus

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

Constitutional Petition No.D-2284 of 2007, decided on 13th May, 2008.

National Accountability Ordinance (XVIII of 1999)---

----S. 19---Constitution of Pakistan (1973), Art.199---Constitutional petition---Power of NAB Authority to call for information---Petitioner had sought declaration that respondent be refrained from harassing or humiliating petitioner under the garb of S.19 of National Accountability Ordinance, 1999---Validity---Notice issued to the petitioner contained all the requisite details in connection with the offence alleged to have been committed by the petitioner---Investigating Officer was duty bound to find out the truth of the matter under investigation; his object would be to discover the actual facts of the case and to arrest the real offender and would not commit himself prematurely in view of the facts and accuse any person---Investigating Officer was required to record statements of the witnesses under S.161, Cr.P.C. and also maintain the record---Notices issued to the petitioner and his relatives, were in consonance with S.19 of National Accountability Ordinance, 1999---Authority however, could not be permitted to take the law in his hands and humiliate and harass the petitioner under the cloak of National Accountability Ordinance, 1999, in any manner---Petition was allowed to the extent that Authority was restrained from harassing or humiliating the petitioner and compelling his attendance in the garb of National Accountability Ordinance, 1999, except in due course of law.

Muhammad Latif A.S.-I., Police Station Sadar v. Sharifan Bibi and another 1998 SCMR 666; Choudhry Shah Muhammad Inspector v. Mst. Ramzan Bibi NLR 1998 Criminal 204 SC(sic) and Ghulam Hussain Baloch v. Chairman, NAB PLD 2007 Kar. 469 ref.

M.A. Kazi for Petitioner.

Muhammad Ali Waris Lari and Asif Rasheed for NAB.

PCrLJ 2008 KARACHI HIGH COURT SINDH 1473 #

2008 P Cr. L J 1473

[Karachi]

Before Mrs. Qaiser Iqbal and Syed Mahmood Alam Rizvi, JJ

MUHAMMAD SIKANDAR MUGHAL and another----Applicants

Versus

THE STATE----Respondent

Criminal Bail Applications Nos.262 and 336 of 2008, decided on 13th May, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.420, 468, 477 & 109---Bail, refusal of---Accused availed the loan facility from the Bank to the tune of Rs.10.12 million, but provided fictitious/forged documents to the Bank; it was in connivance with the co-accused and certain Bank officials or officers and just to save their skins accused persons deposited six instalments of a meagre amount---Investigating Officer had collected the documentary evidence to show that accused persons had distributed said amount among themselves---Such was a white-collar crime; accused persons, prima facie, being involved in the case, were not entitled to be enlarged on bail.

Afzaal Ahmed v. State 2003 SCMR 573; Muhammad Siddique v. Imtiaz Begum 2002 SCMR 442; Abdul Waheed v. State 2004 SCMR 319; Mehrban Ali v. State 2004 SCMR 229; Imtiaz Ahmed v. State PLD 1997 SC 545; Maqsoom Hussain Shah v. State 2007 PCr.LJ 171 and Sher Dil Khoso v. State 2000 PCr.LJ 1748 ref.

Amel Khan Kansi for Applicants.

Ghulam Nabi Shaikh and Zulfiqar Ali Shaikh for Applicant No.2.

Rizwan Ahmed Siddiqui, D.A.-G. for the State.

PCrLJ 2008 KARACHI HIGH COURT SINDH 1491 #

2008 P Cr. L J 1491

[Karachi]

Before Mrs. Yasmin Abbasey, J

MUHAMMAD ATIF and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.418, M.A. No.3319 of 2005 and M.A. No.779 of 2006, decided on 13th March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 426---Application for suspension of judgment till final decision of appeal---Contentions of the applicants were that case in point was that of no evidence; that main witness/complainant on whose pointation applicants were arrested had neither been produced in evidence nor memo. of arrest and recovery had been brought on record to prove the guilt against the applicants; that the mobile phone which was said to have been shown as stolen property, was owned by one of the applicants and that besides two police officials there was no eye-witness of the incident---Validity---State Counsel having also consented to the grant of the application, High Court in circumstances, allowed the applicants to be released on bail on furnishing surety in the sum of Rs.100,000 each with P.R. bonds in the like amount to the satisfaction of the Nazir of High Court.

Jamil Ahmed Virk for Appellants.

Sohail Jabbar, State Counsel.

PCrLJ 2008 KARACHI HIGH COURT SINDH 1507 #

2008 P Cr. L J 1507

[Karachi]

Before Nadeem Azhar Siddiqi, J

SHAH NAWAZ----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-271 and M.As. Nos.1774, 1718 of 2008, decided on 7th July, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 504 & 34---Bail, grant of---Further inquiry---Only allegation against accused was his presence at the time of incident armed with gun---No other overt act had been attributed to accused---Accused had not caused any injury to the deceased---In other connected case of recovery of weapon on pointation of accused, he was acquitted and that order had not been challenged, which fact had created a reasonable doubt---Vicarious liability of accused in the case was to be decided at trial and was a matter of further inquiry---No reasonable grounds were available in the case for believing that accused had committed an offence falling under the prohibitory clause of S.497(2), Cr.P.C.---Bail application was allowed, in circumstances.

Muhammad Sachal v. The State 1969 SCMR 1654; Attaullah and others v. The State 1999- SCMR 1320; Faraz Akram v. The State 1999 SCMR 1360; Muhammad Qasim v. The State 2003 PCr.LJ 775; Mehmood Ahmed v. Haji Nazeer Ahmed 1995 SCMR 310 and Basharat Hussain v. Ghulam Hussain and others 1978 SCMR 357 rel.

Muhammad Azeem Panhwar for Applicant.

Anwar H. Ansari, State Counsel.

PCrLJ 2008 KARACHI HIGH COURT SINDH 1512 #

2008 P Cr. L J 1512

[Karachi]

Before Nadeem Azhar Siddiqi, J

HAKIM ALI TOYO----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-383 of 2008, decided on 7th July, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Bail, grant of---Accused was attributed the role of holding of deceased when co-accused caused hatchet injuries to the deceased---No other overt act had been attributed to accused---Police record revealed that when accused was arrested no material was available with the police to connect him with the offence---Accused appeared to have been arrested on the basis of statement made by co-accused, which statement was not sufficient to connect accused with the alleged offence---No recovery was made from accused and except the identification parade, no other material was available on record to connect him with the alleged offence---No reasonable grounds being available for believing that accused had committed a non-bailable offence falling under the prohibitory clause of S.497(1), Cr.P.C., accused was admitted to bail.

Hafiz Muhammad Aslam 2006 PCr.LJ 97; Shahid v. State 1994 SCMR 393; Mehmood Akhtar v. Haji Nazeer Ahmed 1995 SCMR 310 and 1978 SCMR 357 ref.

Ghulam Sajjad Gopang for Applicant.

Anwar H. Ansar, State Counsel.

Ghulam Shabbir Memon for the Complainant.

2008 P Cr. L J 1540

[Karachi]

Before Dr. Rana Muhammad Shamim and Ghulam Dastagir A. Shahani, JJ

JAFFAR----Petitioner

Versus

THE STATE----Respondent

Criminal Jail Appeal No.16 of 2008, decided on 13th June, 2008.

(a) Precedents---

----Principle---Each and every case is to be decided on its own merits.

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

----Ss. 6/9(c)---Appreciation of evidence---Sixty-six capsules containing 750 grams of heroin were recovered from the stomach of accused---Accused had admitted his guilt at the time of framing the charge and had pleaded for mercy stating that this was his first offence and his family members including his old mother and kids depended upon him---Though said contention of accused was not supported by the record, yet he had regretted his involvement in the offence and had expressed remorse---Judgment passed by Trial Court was legal, proper and in accordance with law and did not suffer from any illegality and infirmity---Conviction and sentence of two and a half years' R.I. of accused were maintained, as he had already been treated leniently by Trial Court in the matter of substantive sentence---However, the fine of accused was reduced from Rs.40,000 to Rs.10,000 in circumstances.

Unchenna Ibeneme v. The State 1992 MLD 1823; Dominguez Rodriguez Narciso v. The State 2000 MLD 218 and John Chibuzo v. The State 2000 MLD 235 ref.

Appellant produced in custody.

Rizwan Ahmed Siddiqui, D.A.-G. for the State.

PCrLJ 2008 KARACHI HIGH COURT SINDH 1546 #

2008 P Cr. L J 1546

[Karachi]

Before Khalid Ali Z. Qazi, J

GHULAM MUSTAFA----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-258 and M.A. No.665 of 2008, decided on 30th May, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/114/147/149---Bail, grant of-Principle of consistency---Co-accused in the case had already been granted bail by High Court---Case of accused was identical to the case of said co-accused---Accused was admitted to bail on the principle of consistency---Petition was accepted accordingly.

Asif Ali Abdul Razak Soomro for Applicant.

Nisar Ahmed G. Abro, State Counsel.

2008 P Cr. L J 1569

[Karachi]

Before Mrs. Qaiser Iqbal, J

MUHAMMAD AKRAM alias LALOO----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No. S-116 and Criminal Jail Appeal No. S-121 of 2005, decided on 5th October, 2006.

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

----Ss. 324 & 337-D---Appreciation of evidence---Injured witness had fully implicated the accused for causing stab wound injury on his abdomen---Eye-witness who was present at the place of incident at the relevant time, had corroborated the testimony of the injured witness in respect of the manner in which the offence was committed by the accused--- Crime-weapon had been recovered from the accused---Minor contradictions pointed out in prosecution evidence were not of much significance---Conviction of accused under S.324, P.P.C. was maintained, but since he was confined in jail for last more than five years his sentence of ten years' R.I. thereunder was reduced to the imprisonment already undergone by him---Offence of accused under S.337-D, P.P.C. having not been made out, he was acquitted of that charge accordingly.

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

----Ss. 324/109---Appreciation of evidence---Two co-accused of accused, who had been assigned the role along with the accused of instigating the principal co-accused in the commission of the .crime, had already been let off by the police---Prosecution had miserably failed to prove the charge under Ss.324/109, P.P.C. against the accused---Accused was acquitted in circumstances keeping in view the principles of safe administration of criminal justice.

Madad Ali Shah for Appellant (in Criminal Appeal No.S-116 of 2005).

Sher Muhammad Leghari for the State (in both Appeals).

Taj Muhammad Qaimkhani for Appellant (in Criminal Jail Appeal No.S-121 of 2005).

Date of hearing: 5th October, 2006.

2008 P Cr. L J 1612

[Karachi]

Before Khawaja Naveed Ahmed, J

SULEMAN----Applicant

Versus

THE STATE----Respondent

Bail Application No.788 and M.A. No.3015 of 2008, decided on 31st July, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.392, 353 & 324/34---Bail, refusal of---Complainant had alleged that two young persons, who later on disclosed their names stopped him and one of them on the point of pistol snatched his mobile phone; that when complainant raised commotion, accused fired upon him, but he was luckily saved---One pistol along with cartridge was recovered from apprehended accused---People like accused, for a very petty amount take the lives of innocent persons upon resistance---Such type of accused were to be dealt with iron hands by the police as well as by the courts---In the present case accused was apprehended on the spot, otherwise in such cases apprehension of accused was very difficult---High Court, however, at that stage refrained from making any observation regarding the merits of the case because it could prejudice the case of either party at trial---From the facts of the case, no case for grant of bail having been made out, bail application, was rejected.

Hakim Ali Khan for Applicant.

Saleem Akhtar Buriro, Addl. P.-G. for the State.

PCrLJ 2008 KARACHI HIGH COURT SINDH 1623 #

2008 P Cr. L J 1623

[Karachi]

Before Khawaja Naveed Ahmed, J

MUHAMMAD ASLAM KHAN and 2 others----Applicants

Versus

THE STATE----Respondent

Criminal Miscellaneous Application No.101 of 2008, decided on 24th July, 2008.

Criminal Procedure Code (V of 1898)---

---S. 561-A---Penal Code (XLV of 1860), Ss.302, 364, 342, 201 & 202/34---Quashing of proceedings---Scope---Provisions of S.561-A, Cr.P.C. being neither additional nor alternate remedy, should not be invoked unnecessarily---High Court should not assume the role of Trial Court under its inherent jurisdiction and Trial Court should be allowed to perform its duty in the normal course---Facts of the present case were very peculiar in nature; police party had claimed encounter with a dacoit, while complainant party had claimed kidnapping and cold-blooded murder of innocent person, who was not a dacoit---Police party claimed that dacoit had assumed different name and was using different identities in order to conceal his real identity---D.N.A. test was almost a conclusive proof of one's identity---After receipt of the report of D.N.A. test in respect of identity of deceased, the entire controversy should have been resolved and the case of complainant/widow of deceased should have been closed by the prosecution---Complainant having lost her interest in the case and all the relatives of deceased had resiled from their earlier statements and had disowned the prosecution case, proceeding with the case would be an exercise in futility--No possibility of conviction of accused existed in the case even if entire evidence in the hand of prosecution was brought on record---Report of D.N.A. test in respect of deceased in the case had falsified the claim of the complainant and her witnesses in the case---Proceedings pending in the Trial Court, were quashed, in circumstances.

Ch. Muhammad Ashraf v. The State 1990 PCr.LJ 347; Imtiaz Hussain v. The State 1991 MLD 1980; Muhammad Sultan and others v. The State 1996 PCr.LJ 1508; M.S. Khawaja v. The State PLD 1965 SC 287; Moin-ul-Islam v. The State 1992 PCr.LJ 1641; Muhammad Hanif Pathan v. The State PLD 1999 Kar. 121; Imtiaz Hussain and others v. The State 1991 MLD 1980; Mian Munir Ahmad v. The State 1985 SCMR 257; Muhammad Khalid Mukhtar v. The State PLD 1997 SC 275; Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122; Bashir Ahmed v. Zafar-ul-Islam PLD 2004 SC 298; The State through Advocate-General; Sindh v. Raja Abdul Rehman 2005 SCMR 1544; The State v. Asif Ali and others PLD 2001 SC 536; Ghulam Nabi and others v. The State 1996 PCr.LJ 1335; Mehboob Alam and 3 others v. The State PLD 1996 Kar. 144 and Gulzar and others v. The State 1996 PCr.LJ 80 ref.

Aamir Mansoob Qureshi for Applicants.

Meran Shah, Addl. A.-G. and Saleem Akhtar Buriro, Addl. P.-G. for the State.

PCrLJ 2008 KARACHI HIGH COURT SINDH 1645 #

2008 P Cr. L J 1645

[Karachi]

Before Mrs. Qaiser Iqbal and Khawaja Naveed Ahmed, JJ

REHMAT ALI----Appellant

Versus

THE STATE----Respondent

Special A.T.A. No.3 of 2008, decided on 24th July, 2008.

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

----Ss. 302, 324, 353 & 354/34---Anti-Terrorism Act (XXVII of 1997), Ss.6(2)(a), (m) & 7---Appreciation of evidence---No motive was available for the murder in the case---No independent witness from the locality was examined to prove the prosecution case through reliable and confidence-inspiring evidence---Eye-witnesses were interested witnesses and had motive to implicate accused---Ocular account was not confidence-inspiring and trustworthy---Shaky evidence of the eye-witnesses could not be relied upon for recording the capital punishment, when their evidence was not corroborated by independent and reliable source---In absence of clear and straightforward evidence, doubtful narration of the prosecution witnesses did not carry weight to record conviction---Accused and co-accused, after being arrested, were not put to identification parade, though they were produced before the Magistrate for remand purpose during investigation---Police party was not in a position to identify the culprits at the time of the occurrence--Later when statement of the complainant under S.154, Cr.P.C. was recorded, he had given the names of accused involved in different dacoity cases, but no description of accused or that of co-accused was available on record---Injured could not be conveniently held that he sustained fire-arm injury at the hands of accused for two reasons; firstly that he being not traceable could not be examined; secondly that none of the prosecution witnesses had come forward to support the prosecution case to the extent of injury sustained by the injured---Even Doctor was not examined---Testimony of the police officials could not be the basis of the evidence---Arrest of accused was highly doubtful and from the circumstances a reasonable doubt could be drawn that defence evidence could be most probable---Impugned judgment of the Trial Court, awarding conviction and sentence to accused was set aside, in circumstances and accused was ordered to be released.

Muhammad Ajmal v. The State 1989 SCMR 434 rel.

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

----Ss. 302, 324, 353 & 354/34---Appreciation of evidence---Testimony of hostile witness---Testimony of hostile witness could not be brushed aside---Version believable to the prosecution could be taken into consideration for awarding conviction.

Kathi Odhabhai Bhimabhai and others v. State of Gujarat 1993 SCMR (Supreme Court of India) 2405 ref.

Ali Ahmed Jan Bangsh for Appellant.

Saifullah A.A.-G. for the State.

Date of hearing: 24th July, 2008.

PCrLJ 2008 KARACHI HIGH COURT SINDH 1665 #

2008 P Cr. L J 1665

[Karachi]

Before Khawaja Naveed Ahmed, J

EJAZ AHMAD----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.803 of 2008, decided on 31st July, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, refusal of---Accused was absconding from justice for the last five years and bail application had been filed by his counsel---High Court refrained from making any observation regarding merits of the case as the same could prejudice the case of either party at the trial, however, prima facie case was established against the accused---Bail application, in circumstances was dismissed.

The State v. Mukhtar Ahmed Awan 1991 SCMR 322 and Muhammad Mushtaq v. State 1995 MLD 1755 ref.

Waseem Samo for Applicant.

Khalid Nawaz Khan Marwat along with Syed Azhar Medhi, Investigating Officer.

PCrLJ 2008 KARACHI HIGH COURT SINDH 1677 #

2008 P Cr. L J 1677

[Karachi]

Before Bin Yamin, J

ZAHID SHAH----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.199 of 2008, decided on 9th July, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/34---Bail, grant of---Name of accused was not mentioned in the F.I.R. as a culprit---No identification parade to establish identity of accused was held---Name of accused was disclosed by co-accused before the police as their companion---Said statement of the co-accused, had no evidentiary value and could not be considered as a valid piece of evidence against accused---Even no fire-arm was recovered from the possession of accused after his arrest---Accused was detained in custody for the last about five years and there was no likelihood of the conclusion of trial in near future---Some evidence on record was available to show that accused was suffering from Hepatitis-C---Case for grant bail to accused having been made out, he was released on bail.

2008 PCr.LJ 449 ref.

Maqbool Ahmad Awan for Applicant.

Muhammad Mehmood Khan S. Yousifi, Asstt. A.-G. for the State.

Lahore High Court Lahore

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1 #

2008 P Cr. L J 1

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD IQBAL----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.7243/B of 2007, decided on 12th October, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/435/148/149---Bail, grant of---Accused was complainant in the main F.I.R. lodged for the murder of his father and also qua receiving injuries by nine persons---Injury attributed to accused in cross-version was a blunt weapon injury on the head of an injured person, while he was armed with a hatchet---Cross-version had been recorded after two months of the occurrence---Police had declared all the accused of the F.I.R. as innocent except a proclaimed offender and another accused who was behind the bars---Case being of two versions, Trial Court was yet to determine, after recording evidence, as to which of the parties was the aggressor---Prima facie, case against accused needed further probe as envisaged by S.497(2), Cr.P.C. and he deserved concession of bail---Accused was allowed bail accordingly.

Rana Saeed Akhtar for Petitioner.

Ch. Jamshed Hussain, Deputy Prosecutor-General for the State with Muhammad Razzaq S.H.O. with Record.

Sarfraz Ahmad Cheema for the Complainant.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 4 #

2008 P Cr. L J 4

[Lahore]

Before Khawaja Muhammad Sharif, J

ALLAH BAKHSH----Appellant

Versus

AHMED SHER and 3 others----Respondents

Criminal Appeal No.869 of 2005, heard on 5th October, 2007.

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

---Ss. 324, 337-A(i)(iii) & 337-F(i)(v)---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal---Delay in lodging F.I.R. had plausibly been explained---Delay in lodging the F.I.R. however, was not fatal to the prosecution---Four injured prosecution witnesses, had supported prosecution case qua the seat of injuries on the part of accused persons---Total 21 injuries were on the person of injured prosecution witnesses---Ocular account of the case was corroborated by medical evidence---Case being of broad-day-light occurrence, there was no question of mistaken identity---Number of injuries however, coincided with the number of assailants---All four prosecution witnesses, who were injured in the occurrence, had fully supported prosecution case---Such witnesses were cross-examined, but nothing could be shaken from their testimony to discard the same---Even otherwise, they had no animus against accused to falsely depose against them---No reason was available to disbelieve their statement---No cogent and legal reason had been given by the Trial Court to base its finding of acquittal---Court had to see the intrinsic value of the evidence of eye-witnesses---If court would come to the conclusion that their evidence had come through an unimpeachable source and was confidence inspiring coupled with the fact that it was supported by the medical evidence, then same was sufficient to base conviction of accused thereon---Recoveries were only supportive in nature---Prosecution had proved its case against accused to the hilt and the Trial Court was not justified to acquit the accused on the basis of surmises and conjectures---Appeal to the extent of said accused persons was allowed, impugned judgment of acquittal to their extent was set aside and conviction and sentences recorded against them by the Trial Court were restored.

1993 SCMR 828; 1981 SCMR 389; PLD 1976 SC 593 and 1992 SCMR 96 rel.

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

----Ss. 324, 337-A(i), (iii) & 337-F(i), (v)---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal---One of the co-accused who was of 77 years of age, was found innocent during the course of investigation by the police, but he was never placed in column No.2 of the challan---While granting benefit of doubt, appeal against acquittal to the extent of said accused was dismissed and his acquittal by the Trial Court was confirmed.

Irfan Masood Sheikh for Appellant.

Ch. Jamshaid Hussain, Deputy Prosecutor-General, Punjab for the State.

Mehr Talib Hussain Bharwana for Respondents.

Date of hearing: 5th October, 2007.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 17 #

2008 P Cr. L J 17

[Lahore]

Before Khawaja Muhammad Sharif, J

SHAHZAD alias SAHIB and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.1135 and Criminal Revision No.425-A of 2005, heard on 4th October, 2007.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Appreciation of evidence---Benefit of doubt---No recovery was effected from accused---No mention was in the F.I.R. qua existence of any light at the place of occurrence, but later on, in order to improve the prosecution story an electric bulb was shown in the rough site-plan prepared by the Investigating Officer and in the site-plan prepared by the Draftsman---Both the eye-witnesses, who were produced by the prosecution, were not residents of the place of occurrence---Nobody from the adjacent houses stepped forward to depose about the occurrence---Accused left the spot, but neither complainant who was real father of deceased nor brothers of deceased tried to apprehend or resist the attack---Such conduct of said prosecution witnesses was unnatural and had created doubts about the veracity of their depositions against accused---Presence of the eye-witnesses at the spot was highly doubtful---No reliance could be placed on their testimony---Police was not sure whether it were accused who had committed the murder---Matter was not reported at the police station, but was reported outside the police station---Accused were two in number, but three Chhurris allegedly were recovered from the spot---Motive which was against the normal human conduct:, was not believed by the Court---Prosecution had failed to prove its case against accused beyond any shadow of doubt to sustain conviction---Prosecution case being full of doubt, conviction and sentence awarded to accused, could not be sustained---Impugned judgment was set aside and accused were acquitted from the case and were released.

Syed Nisar Ali Shah for Appellants.

Ch. Jamshaid Hussain, D.P.G. for the State.

Shahid Qayyum for the Complainant.

Date of hearing: 4th October, 2007.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 31 #

2008 P Cr. L J 31

[Lahore]

Before Khawaja Muhammad Sharif, J

ABID HUSSAIN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.4892/B of 2007, decided on 19th October, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/109/148/149---Bail, grant of-F.I.R. had been lodged with reasonable promptitude---Accused was alleged to have fired at the deceased with a .12 bore gun which had hit on the back of left side of his chest---Medical evidence was in conformity with the ocular version given in the F.I.R.---Variation, if any, was minor in nature, as a villager could not be expected to give totally correct seat of injury---Accused had remained absconder for two years---Discharge order passed by Magistrate regarding innocence of accused was set aside by Sessions Court and the same was upheld by High Court---Charge had been framed in the case and prosecution evidence had been summoned---Bail was refused to accused in circumstances.

Syed Zahid Hussain Bukhri for Petitioner.

Muhammad Yousaf Javaid Phaphra for the Complainant.

Ch. Jamshaid Hussain, Dy. Prosecutor-General with Mustafa A.S.-I. for the State.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 78 #

2008 P Cr. L J 78

[Lahore]

Before Khawaja Muhammad Sharif, J

ABU BAKAR and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.327 of 2003 and Criminal Revision No.822 of 2005, heard on 5th October, 2007.

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

----Ss. 302(b), 324, 337-F(ii) & 449---Appreciation of evidence---Explanation given by the complainant with regard to delay in lodging F.I.R. was plausible---Ocular account in the case was fully corroborated by medical evidence and recovery of blood-stained Chhuri from accused-Star-witness in the case had fully supported prosecution case---Both accused persons were closely related to said star witness---Accused, who was less than 18 years of age at the time of occurrence, rightly was not awarded death penalty; however as prosecution had proved its case against the accused beyond any shadow of doubt, appeal to his extent was dismissed.

2002 YLR 3816; 1998 SCMR 862 and 2002 SCMR 294 rel.

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

----Ss. 302(b), 324, 337-F(ii) & 449---Appreciation of evidence---Co-accused though was present at the spot, but except raising "Lalkara" neither any injury nor any overt act was attributed to him---Possibility of his false implication being real brother of accused, could not be ruled out---Appeal to the extent of said co-accused was accepted---Conviction and sentence recorded against said co-accused by the Trial Court, were set aside and he was directed to be released.

S.D. Qureshi for Appellants.

Ch. Jamshed Hussain, D.P.G. for the State.

S.M. Masood for the Complainant.

Date of hearing: 5th October, 2007.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 83 #

2008 P Cr. L J 83

[Lahore]

Before Muhammad Jehangir Arshad, J

Mst. SAMINA NAWAZ----Petitioner

Versus

STATION HOUSE OFFICER OF POLICE STATION KUHNA KHANEWAL, DISTRICT KHANEWAL and 5 others----Respondents

Civil Miscellaneous No.1307 in Writ Petition No.3763 of 2007, decided on 27th August, 2007.

Constitution of Pakistan (1973)---

----Arts, 199, 10, 14 & 15---Constitutional petition---Release of petitioner from Dar-ul-aman---Petitioner in her application had prayed for her release from Dar-ul-aman on the ground that inquiry as directed by the court in its order whereby she was sent to Dar-ul-aman, stood concluded; and that petitioner being sui juris Muslim girl was entitled to be set at liberty---Inquiry having been concluded, no useful purpose would be served by keeping the petitioner detained in Darul-aman, either against her wishes or on mere desire of her mother/respondent, till the decision of family suit pending between the parties---Even otherwise, keeping petitioner in Darul-aman any further would also be violative of her fundamental right of freedom and liberty as provided by Arts.10, 14 and 15 of the Constitution---Petitioner being sui juris Muslim girl, had an inalienable right to decide to whom and with whom either to marry or reside; she could not be compelled to reside with her alleged husband against whom she had filed suit for jactitation of marriage or with her respondent mother against her wishes---Petitioner was set at liberty; she would be free to move wherever she might---High Court, however, made it clear that observations in the present judgment were purely tentative in nature which would have no bearing on the ultimate decision of the family suit.

Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95; Hafiz Abdul Waheed v. Mrs. Asma Jehangir and another PLD 2004 SC 219 and Mst. Bibi Khatoon v. Paiz and another PLD 1976 Lah. 670 ref.

Malik Muhammad Latif Khokhar for Petitioners.

Syed Muhammad Asad Abbas for the Complainants.

Mubashir Latif Gill, A.A.-G. with Aftab Ahmad D.S.P. (Investigation), Muhammad Saleem S.-I. and Tahir Nasir, Constable No.3194 for the State.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 126 #

2008 P Cr. L J 126

[Lahore]

Before M. Bilal Khan and Tariq Shamim, JJ

CHIRAGH DIN----Appellant

Versus

MUMTAZ ALI and another----Respondents

Criminal Appeal No.258 of 2007, decided on 26th September, 2007.

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

----S. 417(2-A)--Penal code (XLV of 1860), S.302/34---Appeal against acquittal on the basis of compromise---Accused respondents had been acquitted by Trial Court on the basis of compromise arrived at between the parties---Impugned judgment was contended to be illegal and unlawful because the complainant had never appeared before the Trial Court and somebody else had been produced before it---Statement made by the complainant appellant before the Trial Court clearly revealed that he had appeared before it and got recorded his statement acknowledging the compromise arrived at between him and the accused party---Complainant was duly identified by his counsel---Trial Court, while recording the statement of the complainant, had mentioned therein that a copy of his National Identity Card was produced, and its original was seen and returned---Impugned judgment as well as the record had revealed that the proceedings initiated by the Trial Court suffered from no illegality to which sanctity was attached---No reason was available to disbelieve the Trial Court---Judicial record and the statement of the Judge would be regarded as conclusive and neither the affidavits of bystanders or counsel, nor any other evidence could be admissible to contradict the same---Appeal was dismissed in limine accordingly.

Reg. v. Pestanji Dinsha and another (1873) 10 Bom. H.C.R. 75 ref.

(b) Judge---

----Judge, the final authority as to what takes place before him at a trial---Statement of the Judge should be regarded as conclusive---Statement of the Judge must be considered as absolute verity and the same ought to be taken precisely as a record and must be acted upon in the same manner as on a record of Court, which by itself imports absolute verity---Law has made the Judge the final authority as to what takes place before him at a trial, and that authority must be recognized.

Reg. v. Pestanji Dinsha and another (1873) 10 Bom. H.C.R. 75 ref.

Mamoon Rashid Pirzada for Appellant.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 129 #

2008 P Cr. L J 129

[Lahore]

Before M. Bilal Khan, I

SAFDAR ALI----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.6431/B of 2007, decided on 10th October, 2007.

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

---S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/34/109---Bail---Evidence---Supplementary statement---Supplementary statement is always considered to be a weak type of evidence.

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

---S. 497---Penal Code (XLV of 1860), Ss.302/324/34/109---Bail, grant of---Names of the accused persons with the specific roles played by them had been mentioned with mathematical precision in the F.I.R.---Complainant, however, after a period of seventy-two days, got recorded his supplementary statement wherein taking a "U" turn he completely exonerated the accused persons mentioned. in the F.I.R. by substituting them with the present accused and his co-accused with specific roles---Such circumstance by itself was sufficient to render the case of accused one of further inquiry within the meanings of subsection (2) of S.497, Cr.P.C.---Accused was admitted to bail in circumstances.

Ch. Irshad Ullah Chattha for Petitioner.

Muhammad Iqbal Chaudhry, D.P.G. for the State.

Nazeer Hussain, S.I. Police Station Satiana, District Faisalabad with police file.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 131 #

2008 P Cr. L J 131

[Lahore]

Before Syed Shabbar Raza Rizvi, J

ZAHID YOUSAF GIL alias FAZAL HUSSAIN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.6661/B of 2007, decided on 12th October, 2007.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324/109/34---Bail, grant of---Accused as a result of dismissal of the private complaint as withdrawn, had been acquitted by the Trial Court and said acquittal had never been challenged before any forum---Accused was also found innocent during investigation---Police opinion though was not binding on the Court, but the same had to be taken into account, particularly when evidence having not been recorded in the Court was not available for forming an opinion---Section 497, Cr.P.C. did not expressly bar direct entertainment of post-arrest bail application by High Court---Present bail application was substituted with the habeas corpus petition which was also pending wherein quashment of FIR. was sought---Accused was not nominated in the F.I.R. and the supplementary statement of the complainant involving the accused recorded after three years of the occurrence had no legal value better than the statement recorded under S.161, Cr.P.C. and had to be seen with care and suspicion---Accused was admitted to bail in circumstances.

1993 PCr.LJ 376 and PLD 2004 Lah. 591 distinguished.

PLD 2002 SC 572; 2003 YLR 560; 1976 PCr.LJ 936; PLD 1961 AJK 12 and PLD 1960 (AJK) 24 ref.

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

----Ss. 497 & 498---Bail application, entertainment of---Concurrent jurisdiction of Courts---Direct entertainment of bail application by High Court not expressly barred---Sections 497, Cr.P.C. and 498, Cr.P.C. do not expressly confer concurrent jurisdiction on the. Courts, but the same has been derived from practice only and, therefore, exercised with caution under certain circumstances only---Section 497, Cr.P.C. does not expressly provide that bail application cannot be entertained by High Court directly in post-arrest cases.

Rai Bashir Ahmad for Petitioner.

Khurram Latif Khan Khosa for the Complainant.

Asif Mehmood Cheema, D.P.G. with Shakoor. S.-I. for the State.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 135 #

2008 P Cr. L J 135

[Lahore]

Before M. Bilal Khan, J

RAJAB ALI----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.5665/B of 2007, decided on 5th October, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal code (XLV of 1860), Ss.302/337-A(i)/337-L(2)/109/34---Bail, grant of---Initially accused was not named in the F.I.R., but had been implicated in the case twelve days after the occurrence by the real sister of the deceased on the information of a person who too had been arraigned as an accused in the case---Fatal shot had been attributed to accused, but it was yet to be seen as to what extent statement of a co-accused could be used against the accused---Culpability and complicity of accused would be determined at the trial and till then he could not be retained in custody as a measure of punishment---Accused was admitted to bail in circumstances.

Ch. Khalil Ahmad for Petitioner.

Muhammad Iqbal Chaudhry, D.P.G. for the State.

Shehzad Akbar, S.P. Saddar, Faisalabad, Jehangir Khan, Inspector/S.H.O. Police Station Garh, District Faisalabad.

Sardar Muhammad, A.S.-I. Police Station Garh in handcuffs.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 137 #

2008 P Cr. L J 137

[Lahore]

Before Hasnat Ahmad Khan and Iqbal Hameed-ur-Rahman, JJ

Haji BAKHU----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1 of 2006 in Criminal Appeal No.125 of 2006, decided on 27th June, 2007.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.302(b), 324, 336 & 149---Application for suspension of sentence---Allegation levelled against applicant/accused was that he had caused a blow with club (Sota) on the head of injured prosecution witness---Said allegation was duly corroborated by the Doctor who had medically examined said injured prosecution witness---Injury attributed to applicant was found to be dangerous to life---Sentence could be suspended under S.426, Cr.P.C. after coming to the conclusion that at the end of the day, there would be no chance of maintaining conviction awarded to convict---In presence of the oral as well as medical evidence, at that stage it was very difficult to hold that there was no chance of maintaining the conviction awarded to applicant at the time of the decision of the appeal---Besides that deeper appreciation of evidence was not permissible at that stage---Opinion of the police neither was admissible in evidence nor binding on the courts---Sentence awarded to applicant/accused, could not be suspended, in circumstances.

Malik Muhammad Saleem assisted by Sardar Balakh Sher Khosa for Petitioner.

Allah Bakhsh Kalachi for the Complainant.

Bashir Ahmad Bhatti, D.G.P. for the State.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 139 #

2008 P Cr. L J 139

[Lahore]

Before M. Bilal Khan, J

BASHIR AHMAD and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.6931/B of 2007, decided on 17th October, 2007.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.354-A/337-L(2)/34---Bail, grant of---Initially the case had been registered under Ss.337-L(2) & 354/34, P.P.C.---Investigating Officer had opined that S.354-A, P.P.C. was not attracted, because during the scuffle between the parties clothes of the complainant and her daughter were not torn off, as alleged in the F.I.R.---Husband of the complainant had divorced her and she was presently living with the accused petitioners and contention that the accused in this situation had been falsely implicated in the case, could not be lightly brushed aside---Case of accused had become one of further inquiry within the meanings of S.497(2), Cr.P.C.---Accused were admitted to bail in circumstances.

Syed Nisar Ali Shah for Petitioners:

Muhammad Iqbal Chaudhry, D.F.G. for the State.

Munawar Hussain, S.-I. Police Station Saddar Samundari, District Faisalabad with police file.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 141 #

2008 P Cr. L J 141

[Lahore]

Before Syed Shabbar Raza Rizvi, J

Mst. KHALIDA BIBI and another----Petitioners

Versus

ADDITIONAL SESSIONS JUDGE, LAHORE and 7 others----Respondent

Criminal Revision No.957 of 2007, decided on 5th October, 2007.

Illegal Dispossession Act (XI of 2005)---

----S. 7---Criminal Procedure Code (V of 1898), S.439---Revision petition---Sessions Court had granted interim relief to the respondents under S.7 of the Illegal Dispossession Act, 2005, in a complaint filed by them which was found to be non-maintainable in view of the Full Bench judgment dated 19-1-2007 reported in 2007 PCr.R. 2001 and thus automatically the position which prevailed prior to filing the complaint stood restored---Sessions Court, therefore, should have restored the possession to the petitioners which it had handed over to the complainant respondent while exercising jurisdiction which did not vest in it as the complaint was not maintainable:--When Sessions Court held the complaint being not maintainable and dismissed the same, the interim order also ceased to exist which was an off-shoot of the main complaint---Sessions Court had failed to apply its mind in this regard---Impugned orders were set aside in circumstances and the revision petition was allowed accordingly.

Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah. 231 ref.

Ch. Akhtar Ali for Petitioners.

Waseem Ahmad Gujjar for Respondents.

Asif Mehmood Cheema, F.P.G. with M. Ashraf, A.S.-I.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 144 #

2008 P Cr. L J 144

[Lahore]

Before M. Bilal Khan, J

Sheikh SALEEM AHMED and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous Nos.6824/B and 7341/B of 2007, decided on 11th October, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Customs Act (IV of 1969), Ss.156(1)/81/82/89/178---Bail, grant of---Principal accused in the case who was the importer of the consignment in question had been allowed bail by the Trial Court---Customs Authorities had not denied that the accused were not registered clearing agents, but their stance was that the accused had used permits of another Agent, who had neither been arrayed as an accused nor had been questioned during investigation---Offences with which the accused were charged did not attract the prohibitory clause of S.497(1), Cr.P.C.---Substantial portion of customs duty had been paid by the principal co-accused to the Department---Was yet to be seen as to what weight could be given to the statement of the said co-accused incriminating the present accused---Case of accused, thus, called for further inquiry, as envisaged by S.497(2), Cr.P.C.---Accused were allowed bail accordingly.

Ijaz Ahmad Chadhar for Petitioner (in Criminal Miscellaneous No.6824/B of 2007).

Raja Jehanzeb Akhtar for Petitioner (in Criminal Miscellaneous No.7341/B of 2007).

Khawar Ikram Bhatti, Legal Advisor for Customs Department with Muhammad Anwar, Intelligence Officer, Customs Department, Faisalabad.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 153 #

2008 P Cr. L J 153

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD BOOTA and 8 others----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.5038/B of 2007, decided on 29th October, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 325, 353, 427, 436, 148 & 149---West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S.16---Bail, grant of--Further inquiry---In the present case offences covered by Ss.324 & 436, P.P.C. were the only two provisions which attracted the prohibitory clause of S.497(1), Cr.P.C. rest of the remaining offences, viz., Ss.325, 353, 427, 148 were bailable---Accused allegedly were armed with dangerous weapons, but not even a scratch had been received by any of the members of the police party or any private individual present at the scene of occurrence-Such situation alone rendered the applicability of S.324, P.P.C. a matter of further probe---List of allegedly burnt articles had been added to the file after 34 days of the occurrence---Was needed to be determined, as to whether the tents which were allegedly put to flames could be defined as a building for human dwelling or a place of worship as described in S.436, P.P.C.---Accused, who were poor peasants, were facing incarceration for the last almost six months---Trial had not made any tangible progress---Accused could not be retained in custody indefinitely as a measure of punishment---Accused were admitted to bail, in circumstances.

Saif Ullah Khan for Petitioners.

Munir Ahmed Bhatti and Azam Nazeer Tarar for the Complainant.

Muhammad Iqbal Chaudhry, D.P.G. for the State with Sanaullah A.S.-I. Police Station Chakbedi District Pakpattan Sharif with record.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 159 #

2008 P Cr. L J 159

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD ASHFAQ----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.4191/B of 2007, decided on 24th October, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 337-F(i), (iii), 337-L(ii) & 149---Bail, grant of---Accused along with his co-accused who were granted post-arrest bail by the Trial Court, having remained absent, had validly been declared proclaimed offenders---Precedent of a predecessor court, though was not binding on his successor, but the court was also duty a bound to ensure that no discrimination should be resorted to merely by invoking technicalities---If the fact and circumstances of the case of co-accused who had been bailed out by the court below were juxtaposed with that of accused, coupled with the fact that other co-accused who had been assigned the main role of firing at the deceased, had been acquitted of the charge on the basis of a compromise, concession of bail could not be withheld from accused as a measure of punishment---True import of vicarious liability of accused and the role played by him would be determined at the time of trial after collecting some material evidence---Accused could not be retained in custody indefinitely merely on the ground that accused remained fugitive from law.---Case of accused being on a better footing than his co-accused, he was also entitled to the same relief---Accused was admitted to bail.

Malik Amjad Pervaiz for the Petitioner.

Muhammad Iqbal Chaudhry, D.P.-G. for the State.

Muhammad Azam, S.-I. Police Station, Saddar Daska, District Sialkot with police file.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 175 #

2008 P Cr. L J 175

[Lahore]

Before Tariq Shamim, J

KHALID PERVEZ through Special Attorney----Petitioner

Versus

Haji AKHTAR NISAR and 6 others----Respondents

Criminal Miscellaneous No.927/M of 2007, decided on 26th October, 2007.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 174 & 176---Penal Code (XLV of 1860), S.302---Quashing of order---Disinterment of dead body of deceased---Petitioner who was father of deceased, suspecting foul play, submitted an application to the local police expressing suspicion of murder of his deceased daughter at the hands of respondent---Sub-Inspector of police filed application with Illaqa Judicial Magistrate seeking exhumation of the dead body of deceased so that, actual cause of her death could be determined---Magistrate on receiving said application and after summoning respondent and recording his evidence, arrived at a conclusion that circumstances demanded disinterment of the dead body and accepting application ordered accordingly---Appellate Court below, however set aside order of the Magistrate in revision---Validity---Procedure required under the law, having been followed by the . Magistrate, no illegality had been committed by him---Order passed by Appellate Court below was illegal, unwarranted and result of misconception of law---Appellate Court below had misinterpreted the provisions of Ss.174 & 176, Cr.P.C., which had clearly envisaged holding of an inquiry in a case regarding disinterment of a dead body---Accepting petition under Section 561-A, Cr.P.C. order of Appellate Court below, was set aside.

Zafar Iqbal Chohan for Petitioner.

Shehryar Sheikh for Respondents Nos.1 to 4.

Ch. Amjad Hussain, D.P.-G., Punjab for the State.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 194 #

2008 P Cr. L J 194

[Lahore]

Before Khawaja Muhammad Sharif, J

AMJAD ALI and others----Appellant

Versus

THE STATE and others----Respondents

Criminal Appeals Nos.680, 681 and Criminal Revision No.391 of 2004, heard on 19th October, 2007.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---F.I.R. suffered from a delay of two days although police station was only four furlongs away from the place of occurrence---Deceased had been taken to hospital in an injured condition, according to record, two hours before the time of occurrence which had falsified the prosecution story---Crime-empties not secured from the spot, but handed over to Investigating Officer by the complainant, were never sent to the Fire-arm Expert either before or after the arrest of the accused---Eye-witnesses were not found to be present at the scene of occurrence and they had been planted later on---Prosecution case was replete with doubts and the evidence adduced by prosecution was untrustworthy and unreliable---Accused were acquitted in circumstances.

Hafiz Ansarul Haq and Malik Aftab Aslam for Appellants.

Ch. Jamshaid Hussain, D.P.-G. for the State.

Nemo for the Complainant.

Date of hearing: 19th October, 2007.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 199 #

2008 P Cr. L J 199

[Lahore]

Before Muhammad Muzammal Khan and Syed Shabbar Raza Rizvi, JJ

MANSAB ALI----Appellant

Versus

SULEMAN and 7 others----Respondents

Intra-Court Appeal No.133 of 2007 in Writ petition No.11549 of 2006, decided on 18th September, 2007.

Illegal Dispossession Act (XI of 2005)---

---Ss. 3, 4 & 7---Law Reforms Ordinance (XII of 1972), S.3---Intra-court appeal---Interim relief---Withdrawal of complaint---Effect---Appellant filed complaint alleging that respondents had dispossessed him of Ihata owned by him---Trial Court as interim relief, directed respondents to hand over possession of said Ihata to appellant---After taking interim possession, appellant withdrew his complaint---High Court allowed constitutional petition of respondents and restored possession to them---Validity---Order under S.7 of Illegal Dispossession Act, 2005, could be passed for temporary relief during pendency of main case---If main case was withdrawn, there was no justification for interim order/relief to continue which was granted only on the basis of pendency of main case/complaint---Trial Court had prejudiced the case of respondents by depriving them of proving their right, hence they suffered for an act of court---In presence of order passed by High Court, Trial Court could not have passed any order---Division Bench of High Court declined to interfere with judgment passed by Single Judge---Intra-court appeal was dismissed in circumstances.

Ghulam Farid Sanotra for Appellant.

Abdul Qadoos Rawal for Respondents.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 202 #

2008 P Cr. L J 202

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

TASAWAR AHMAD----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.1017 and Murder Reference No.399 of 2002, heard on 6th March, 2007.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 302(c)---Appreciation of evidence---Sentence, reduction in---Delay of more than 2-1/2 hours in not reporting the occurrence to police was not explained, which had been consumed in deliberations and concoction of story---Statements of eye-witnesses were not convincing who had made improvements after going through the medical evidence---Medical evidence had supported the view that eye-witnesses had not seen the occurrence---Motive as set up in the F.I.R. was only a fiction---" Favourable report had been obtained from Forensic Science Laboratory even without sending the crime-empties to it and no reliance could, therefore, be placed on evidence of recovery---Prosecution case was replete with doubts---Defence plea of exercise of right of self-defence taken by accused was not made out on the record---None of the parties had come out with true story, but such fact could not deter the Court from drawing proper inferences from the evidence and circumstances of the case---Deceased and the accused who were political rivals appeared to have come across with each other and situation worsened on passing of some remarks, which resulted in the incident---Conviction of accused under S.302(6), P.P.C. was altered to S.302(c), P.P.C. and his sentence of death was reduced to twenty years R.I. in circumstances with benefit of S.382-B, Cr.P.C.---Compensation awarded under S.544-A, Cr.P.C. was set aside in view of the circumstances of the case.

Syed Ali Bepari v. Nibran Mollah and others PLD 1962 SC 502 and Mairaj Begum v. Ejaz Anwar and others PLD 1982 SC 294 ref.

Azam Nazeer Tarar for Appellant.

Syed Ejaz Quttab for the Complainant.

Naeem Tariq Sanghera, D.P.-G. for the State.

Date of hearing: 6th March, 2007.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 216 #

2008 P Cr. L J 216

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MOEEN-UD-DIN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.8632/B of 2007, decided on 5th December, 2007.

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

----S. 497---Penal Code (XLV of 1860), S.302---Constitution of Pakistan (1973), Art.9---Police Rules, 1934, R.25.2---Bail, grant of---No overt role was attributed to accused of tiring or causing injury to deceased either in the F.I.R. or the supplementary statement of the complainant---Accused was shown only present in a car in which even the co-accused was not present who had actually fired at the deceased---Under R.25.2 of Police Rules, 1934, arrest was not an automatic act on the part of the Investigating Officer or a requirement of law after registration of the case---Article 9 of the Constitution allowed deprivation of liberty only when required under the law---Collective reading of Art.9 of the Constitution and Police Rules, 1934, R.25.2 demanded collection of some incriminating material against an accused person before effecting his arrest---Automatic arrest without bringing some incriminating material against accused on the record was deprecated---No such material was available on police file against the present accused---First person to reach at the scene of occurrence was the complainant himself, who had compromised with the accused---No recovery of any kind had even been made from the accused---Case for further inquiry into the guilt of accused, thus, was made out---Accused was admitted to bail in circumstances.

PLD 2005 Lah. 470 ref.

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

----Art. 9---Police Rules, 1934, R.25.2---Security of liberty of person---Collective reading of Art.9 of the Constitution and R.25.2 of Police Rules, 1934, demand collection of some incriminating material against an accused person before effecting his arrest.

PLD 2005 Lah. 470 ref.

Shaukat Rafique Bajwa for Petitioner.

Ch. Riaz Hussain Bhullar for the Complainant.

Asif Mehmood Cheema, D.P.-G., Punjab for the State.

Muhammad Afzal A.S.-I. with record.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 230 #

2008 P Cr. L J 230

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

ABID HUSSAIN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.380 and Murder Reference No.276 of 2002, heard on 1st March, 2007.

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

----S. 302(b)---Appreciation of evidence---Matter had been reported to the police after seven hours of the occurrence not at the police station but in a Chowk where the Police Officer was present per chance---Explanation offered by complainant for the said delay was baseless---Inherent doubt surrounded the F.I.Rs. not recorded at the police station that the same were recorded at the spot after due deliberations---Ocular account of occurrence was belied by medical evidence---No crime-empty having been recovered from the spot and no independent witness having been associated with recovery proceedings, alleged recovery of fire-arm at the instance of accused was of no consequence---Prosecution evidence relating to motive was not credible---Occurrence was an un-witnessed one and the whole prosecution story had been cooked up after knowing about the murder of the deceased---Accused was acquitted in circumstances.

Medical Jurisprudence 5th Edition page 287 ref.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S.154---F.I.R. not recorded at police station---Effect---Inherent doubt surrounded the F.I.Rs. which were not recorded at the police station, that they were recorded at the spot after due deliberations.

Khawaja Sultan Ahmad for Appellant.

Ch. Ghulam Murtaza Khan for the Complainant.

Muhammad Hussain Chhachar, Addl. P.-G. for the State.

Date of hearing: 1st March, 2007.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 256 #

2008 P Cr. L J 256

[Lahore]

Before Tariq Shamim, J

MUHAMMAD IMRAN----Petitioner

Versus

THE STATE----Respondent

Criminal Revision No.946 of 2006, heard on 15th November, 2007.

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

----S. 6---Criminal Procedure Code (V of 1898), Ss.243, 164, 342 & 439---Accused had been convicted and sentenced for keeping substandard material on his statement recorded under Ss.164 & 342, Cr.P.C.---Validity---Trial Court, before awarding the sentence to accused, was under an obligation under S.243, Cr.P.C. to ask him after he had pleaded guilty and admitted the charge to show cause as to why he should not be convicted and sentenced---Requirement of show-cause notice under S.243, Cr.P.C. was mandatory to avoid involuntary admission by the accused---Said mandatory requirement having been overlooked by the Trial Court as well as by the Appellate Court, conviction of accused was bad in law---Recording of both the statements of the accused under Ss.164 & 342, Cr.P.C. jointly was also not permissible under the law---Accused was acquitted in circumstances and the revision petition was accepted accordingly.

Ghulam Sarwar v. The State 1996 PCr. LJ 1853 ref.

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

----S. 243---Conviction on admission of truth of accusation---Show-cause notice---Mandatory---Requirement of show-cause notice under S.243, Cr.P.C. is mandatory---Purpose behind the enactment of the said provision is to avoid involuntary admission.

----Ss. 164 & 342---Recording of statements jointly, not lawful---Recording of statements of accused under Ss.164, Cr.P.C. and 342, Cr.P.C. jointly by trial Court is not permissible in law.

Ghulam Sarwar v. The State 1996 PCr.LJ 1853 ref. Ch. Abdul Ghaffar for Petitioner.

Ch. Jamshed Hussain, D.P.G. for the State.

Date of hearing: 15th November, 2007.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 259 #

2008 P Cr. L J 259

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmed Chaudhry, JJ

GHULAM NABI alias GAMI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.96-J of 2003 and Murder Reference No.415 of 2002, heard on 27th February, 2007.

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

----S. 302(b)---Appreciation of evidence---Occurrence had taken place at 10-30 p.m. in the dark hours of the night and initially the F.I.R. was registered after a delay of about five hours on the statement of the complainant, father of the deceased---Complainant had filed a private complaint against the accused after about 3-1/2 months of the occurrence---Complainant and his son had furnished ocular account of occurrence and both of them had made dishonest improvements before the Trial Court---Seats of injuries were not mentioned on the person of the deceased by eye-witnesses either in the complaint or in their statements before the Trial Court---Motive against the accused could not be proved by the prosecution---Evidence regarding recovery of the gun had helped the accused---Eye-witnesses were not found to be present at the scene of occurrence and they had been guessing about the assailant and adjusting their statements according to the new discoveries---Presumption howsoever strong could not take the shape of proof---Prosecution case was full of doubts---Accused was acquitted in circumstances.

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

----S. 302(b)---Appreciation of evidence---Presumption---Presumption, howsoever strong, cannot take the place of proof.

Nadeem Siddiqui and Iqbal Hussain for Appellant (at State expenses).

Ch. Muhammad Hussain Chhachhar, Addl. P.-G. for the State.

Date of hearing: 27th February, 2007.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 267 #

2008 P Cr. L J 267

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

SADAQAT HUSSAIN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.65, Murder Reference No.242 and Criminal Revision No.47 of 2001, heard on 5th December, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---Eyewitnesses had supported the prosecution case and were believable as there was no background of enmity between the parties---Case was only of one accused and real brother of the deceased could not be expected to substitute the accused for the real culprit---Medical evidence did not appear to be in conflict with the ocular evidence---Pistol was recovered -at the instance of the accused which had matched with the crime-empty secured from the spot---Prosecution case having been proved beyond any shadow of doubt, conviction of accused was maintained---Age given by accused at the time of arrest as 17-1/2 years had been converted to 18-1/2 years to make him adult or major in order to deprive him of any benefit tin that account---Accused had fired a single shot and did not fire the second shot---Motive for the occurrence was not proved---Sentence of death of accused was reduced to imprisonment for life in circumstances.

PLD 2002 Lah. 110; 2003 SCMR 1419; PLD 1976 SC 568; Criminal Appeal No.3567 of 2001 and Murder Reference No.308 of 2001 and Muhammad Arshad and 2 others v. State PLD 1996 SC 122 ref.

Sardar Muhammad Ishaq Khan for Appellant.

Razzaq A. Mirza for the Complainant.

Tanveer Iqbal, A.A.-G. for the State.

Date of hearing: 5th December, 2006.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 272 #

2008 P Cr. L J 272

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmed Chaudhry, JJ

IJAZ AHMAD alias AJJU----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.206-J and Murder Reference No.397 of 2002, heard on 22nd February, 2007.

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

----S. 302(b)---Appreciation of evidence---Occurrence had taken place in broad-daylight---F.I.R. was lodged promptly leaving little room for false implication---Accused being known to eye-witnesses previously, no question of misidentification could arise---Ocular testimony was consistent---Involvement of a witness in some cases would not be a reason to discard his evidence if the same otherwise inspired confidence and was in consonance with the probabilities fitting in the circumstances of the case---Promptly lodged F.I.R. was sufficient proof of presence of prosecution witnesses at the scene of occurrence---Medical evidence had fully supported the ocular evidence---Direct evidence was also corroborated by abscondence of accused for one year---Place of occurrence had not been denied---Defence plea was not only revolting to common sense, but was also not supported by any evidence---Conviction and sentence of accused were upheld in circumstances.

Haroon alias Harooni v. The State and another 1995 SCMR 1627 and Niaz v. The State PLD 1960 SC 387 ref.

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

----S. 302(b)---Appreciation of evidence---General---Statement of a witness must be in consonance with the probabilities, fitting in the circumstances of the case and also inspiring confidence in the mind of a reasonable prudent man---If these elements are present, then the statement of the worst enemy of an accused may be accepted and relied upon without corroboration, but if the said elements are missing, then the statement of a pious man may be rejected without second thought.

Haroon alias Harooni v. The State and another 1995 SCMR 1627 ref.

----S. 302(b)---Appreciation of evidence---Interested witnesses---Guidelines---Whenever interested persons claiming to be eye-witnesses of an occurrence charge persons against whom they have some motive for false implication with the commission of the offence, the first question to be considered is whether in fact they had seen the occurrence and were in a position to identify the culprits---If the first question is not open to any doubt then the further question arises as to whether they can be relied upon for convicting the accused without corroboration---Where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they charge does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation for it.

Niaz v. The State PLD 1960 SC 387 ref.

Salman Safdar for Appellant.

Ch. Muhammad Hussain Chhachhar, Addl. P.-G. for the State.

Date of hearing: 22nd February, 2007.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 279 #

2008 P Cr. L J 279

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

AZIZ-UR-REHMAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.187, Criminal Revision No.77 of 2000 and Murder Reference No.170 of 2001, heard on 5th December, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Eyewitnesses, sons of the deceased, who were admittedly chance witnesses had specifically stated that the accused had fired only one shot, but according to post-mortem report deceased had suffered three injuries on his person---Presence of eye-witnesses at the scene of occurrence, thus, was doubtful---Interpolations had been made regarding time of death of the deceased, injuries sustained by him and number of witnesses in the inquest report as well as in the post-mortem report in order to suit the prosecution version---Conviction of accused could not be maintained simply on the abscondence of accused, when presence of eye-witnesses on the spot at the relevant time was not established---Benefit of doubt was extended to accused in circumstances and he was acquitted accordingly.

Tariq Azam Chaudhry for Appellant.

Nemo for the Complainant.

Ch. Tanveer Iqbal, Asstt. A.-G., Punjab for the State.

Date of hearing: 5th December, 2006.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 284 #

2008 P Cr. L J 284

[Lahore]

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

MUHAMMAD AKRAM----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.228 and Murder Reference No.336 of 2004, heard on 6th June, 2007.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 302(c)---Appreciation of evidence---Sentence, reduction in---Eye-witnesses including the complainant had made dishonest improvements at the trial---Claim of eye-witnesses to have witnessed the occurrence was belied by the unchallenged medical evidence---No direct motive was alleged against the accused---Occurrence was an un-witnessed one---Accused had not come out with the whole truth, but Court was competent to draw proper inference from the evidence and circumstances of the case---Story that the second shot was stuck up the rifle of the deceased was supported from the recovery of seven live bullets from his pocket soon after the incident---Occurrence appeared to be the result of a sudden flare up and the deceased had received injuries at the hands of the accused after sticking of bullet in his rifle---Conviction of accused under S.302(b), P.P.C. was altered to S.302(c), P.P.C. and his death sentence was reduced to fourteen years' R.I. in circumstances with benefit of S.382-B, Cr.P.C.---Compensation under S.544-A, Cr.P.C. being not sustainable in the circumstances of the case, was set aside.

Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502 and Mairaj Begum v. Ejaz Anwar and others PLD 1982 SC 294 ref.

Munir Ahmad Bhatti for Appellant.

Ch. Muhammad Aslam Sandhu, Addl. P.-G. for the State.

Ihtesham Qadir Shah for the Complainant.

Date of hearing: 6th June, 2007.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 294 #

2008 P Cr. L J 294

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

ABDUL KHALIQ----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.487 of 2000 and Murder Reference No.226 of 2001, heard on 5th December, 2006.

Penal Code (XLV of 1860)----

----S. 302(b)-Appreciation of evidence---Sentence, reduction in---Accused had admitted the time, date and the place of occurrence in his statement recorded under S.342, Cr.P.C. but had taken a specific plea of right of self-defence, so, it was a case of two versions---Investigating Officer had admitted that first version of the accused before him was the same, which he had taken before the Trial Court---Version of accused when put in juxtaposition with the complainant's version set up in the F.I.R., seemed to be more plausible and convincing---Case was of single injury---No previous background of enmity existed between the parties---Occurrence had taken place at spur of the moment without any premeditation---Conviction of accused was maintained, but his death sentence was altered to imprisonment for life in circumstances.

Muhammad Arshad and 2 others v. State PLD 1996 SC 122 ref.

Syeda B.H. Shah for Appellant.

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

Nemo for the Complainant.

Date of hearing: 5th December, 2006.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 299 #

2008 P Cr. L J 299

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD HASSAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.1192 and Murder Reference No.522 of 2002, heard on 12th June, 2007.

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

----Ss. 302(b) & 302(c)---Appreciation of evidence---Sentence, reduction in---Eye-witnesses were related to the deceased---Civil and criminal litigation was pending between complainant party and the accused---Eyewitnesses had claimed to be present at the scene of occurrence per chance---Complainant who was previously a police constable and had been dismissed from service, and other eye-witness had made dishonest improvements in their statements before the Trial Court---Two crime-empties collected from the spot had tallied with the pistol recovered at the instance of accused---Medical evidence had belied the prosecution story---Eye-witnesses were not found to be present on the spot at the time of occurrence and the accused appeared to have been roped in the case due to existing enmity merely on suspicion---Evidence of recovery of pistol at the instance of accused and calling of same with the crime-empties secured from the spot, was not worthy of any credence---Although accused in his statement recorded under S.342, Cr.P.C. had not taken the plea of self-defence, yet he had taken such stance during the cross-examination of the Investigating Officer---Defence plea taken at appellate stage could be looked into even if the same was not specifically taken before the Trial Court by the accused in his statement recorded under S.342, Cr.P.C.---Accused had fired twice at the deceased with his pistol and by causing repeated fires he had exceeded his right of private defence of person and did not deserve clean acquittal---'Conviction of accused under S.302(b), P.P.C. was altered to S.302(c), P.P.C. and his death sentence was reduced to 14 years' R.I. in circumstances with benefit of S.382-B, Cr.P.C.

Muhammad Sharif v. The State 1985 SCMR 1684 rel.

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

----S. 302(b)---Defence plea not specifically taken before Trial Court can be looked into at appellate stage---Defence plea taken at appellate stage can be looked into even if the same was not specifically taken before the Trial Court by the accused in his statement recorded under S.342, Cr.P.C.

Muhammad Sharif v. The State 1985 SCMR 1684 ref.

Khalid Saeed Akhtar for Appellant.

Ch. Muhammad Aslam Sandhu, Addl. P.-G. for the State.

Date of hearing: 12th June, 2007.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 309 #

2008 P Cr. L J 309

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

MUHAMMAD AYYAZ alias WAQAR AHMAD and 2 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.47-T and Murder Reference No.9-T of 2004, heard on 12th December, 2006.

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

----S. 7(a)---Appreciation of evidence---All eye-witnesses except one had identified the accused -during identification parade and they had no reason for false implication of accused in the case---Eye-witnesses were consistent and had supported the prosecution case on all material points---Ocular testimony was fully corroborated by medical evidence---Pistol and hand-grenade had been recovered from the accused---Five innocent persons had lost their lives and 19 persons had been injured in the occurrence, which was terrorism and had created insecurity amongst public-at-large---Prosecution had proved its case against accused and no mitigating circumstance was available in their favour---Conviction and sentence of accused on all counts were maintained in circumstances.

AIR 1925 Lah. 426; 1975 PCr.LJ 38; PLD 1981 SC 141; 1985 SCMR 721; 1988 SCMR 557; 1993 SCMR 585; 1995 SCMR 127; PLD 1996 Kar. 246 and 1996 PCr. LJ 1315 ref.

Malik Muhammad Rafiq Khan for Appellant.

Hussnain Kazmi, Asstt. A.-G. for the State.

Date of hearing: 12th December, 2006.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 318 #

2008 P Cr. L J 318

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD RIAZ and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.423, Criminal Revision No.408 and Murder Reference No.329 of 2002, heard on 18th June, 2005.

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

----S. 302(b)/34---Appreciation of evidence---Eye-witnesses being chance witnesses had failed to plausibly explain their presence at the scene of occurrence---Opinion of the doctor did not support the ocular version that the fire-arm injury had been caused to the deceased from point blank range---Enmity existed between the parties and in an un-witnessed occurrence involvement of the enemies was more likely---Related and inimical evidence could only be believed in the presence of strong reliable independent corroborative evidence, which was lacking in the case---Neither any crime-empty was recovered from the spot, nor the pistol recovered at the instance of accused with five live bullets was ever sent to Forensic Expert---Prosecution witnesses who had gone to police station had attested the recovery memo.---Place of recovery was accessible to all---Recovery of motorcycle was also not reliable as the recovery witnesses had contradicted each other on material points---Presence of eye-witnesses on the spot at the time of occurrence was not free from doubt---Suspicion, however grave, could not take the place of proof---Accused were acquitted in circumstances.

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

----S. 302(b)/34---Criminal Procedure Code (V of 1898), S.154---First information report---F.I.R. is not an exhaustive piece of evidence and the witness can narrate details lacking in the F.I.R. in his statement being recorded before Trial Court---However, Court has to adjudge whether such details amounted to imprisonment or not.

----S. 302(b)/34---Appreciation of evidence---Related and inimical evidence---Principles---Related and inimical evidence should only be believed in the presence of strong reliable independent corroborative evidence.

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

-----S. 302(b)/34---Appreciation of evidence---Suspicions---Suspicions however, grave are after all suspicions and the same cannot take the place of proof.

Sardar Muhammad Latif Khan Khosa, Muhammad Inayat Ullah Cheema and Sardar Shahbaz Hussain Khosa for Appellants.

Ch. Muhammad Aslam Sandhu, Addl. P.-G. for the State.

M. Asghar Rokhari for the Complainant.

Date of hearing: 18th June, 2007.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 330 #

2008 P Cr. L J 330

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

MUHAMMAD SAEED----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.349 and Murder Reference No.664 of 2001, heard on 7th December, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 302(c)---Appreciation of evidence---Sentence, reduction in---Dead bodies of both the deceased were found in the same room---Vaginal swabs of the deceased woman were found stained with semen---Nobody had seen the accused firing shots or giving blows to the deceased persons---First version of accused of having killed his wife and her paramour under grave and sudden provocation before the police, was maintained by him even in his statement recorded under S.342, Cr.P.C.---Occurrence had taken place under grave and sudden provocation and accused had acted under the impulse of the same---Conviction of accused under S.302(b), P.P.C. was consequently altered to S.302(c), P.P.C. and his death sentence on each count was reduced to the imprisonment already undergone by him in circumstances---Compensation awarded under S.544-A, Cr.P.C. was set aside, as the same could not be awarded in such-like cases---Appeal was disposed of accordingly.

Mairaj Begum v. Ejaz Anwar and others PLD 1982 SC 294 ref.

Qazi Muhammad Amin for Appellant.

Tanveer Iqbal, Asst. A.-G. for the State.

Date of hearing: 7th December, 2006.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 366 #

2008 P Cr. L J 366

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

Mst. MATLOOB HUSSAIN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.977 and Murder Reference No.407 of 2002, heard on 7th March, 2007.

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

----S. 302(b)-Appreciation of evidence---Sentence, reduction in---Occurrence had taken place in broad-daylight in a street at a distance of 60/66 feet from the house of prosecution witnesses---Prosecution witnesses were natural witnesses of the occurrence having no previous enmity for false implication of accused---Ocular testimony was consistent, coherent and trustworthy and was fully supported by medical evidence---Reporting of the occurrence promptly to the police had affirmed the presence of eye-witnesses at the scene of incident, leaving no room for concoction of any story---Admission on the part of accused could be looked into and used against him as the same was brought on record at his instance---Parents and sister of the deceased could not be believed to have substituted the killer by an innocent person---Conviction of accused was maintained in circumstances---Reason behind the occurrence appeared to be family honour and the accused at the time of incident being hardly twenty years of age, his sentence of death was altered to imprisonment for life---Appeal was disposed of accordingly.

Hasil v. Emperor 1942 Indian Cases Vol. 198 441 rel.

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

----Art. 38---Confession to Police Officer not to be proved---Extent and scope---Prohibition contained in Art.38 of the Qanun-e-Shahadat Order, 1984, can be treated as applying only to confessions which are to be proved as against the accused, i.e., in support of the prosecution case and cannot apply to statements on which the accused himself wishes to rely in connection either with his conviction or his sentence---Where two versions of the same incident are being put forward, in such cases, it is often of the greatest importance for an accused to be able to show that his own explanation was put forward at the earliest possible opportunity---Legislature never intended that an accused person should be deprived of the right to make use of such a statement, merely because to a certain extent it goes against him.

Hasil V. Emperor 1942 Indian Cases Vol. 198 441 ref.

Masood Sadiq Mirza for Appellant.

Naeem Tariq Sanghera, D.P.-G. for the State.

Date of hearing: 7th March, 2007.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 376 #

2008 P Cr. L J 376

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

MUHAMMAD RAZZAQ----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.41 and Murder Reference No.230 of 2001, heard on 5th December, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Deceased according to medical evidence being not in a fit condition before his death to make a statement, the same could not be treated as his dying declaration, which was an afterthought---Eye-witnesses were not found present at the scene of occurrence---Evidence of recovery being discrepant, recovery of weapons of offence at the instance of accused was highly doubtful and was ruled out of consideration---Prosecution had introduced two different motives for the commission of the offence, one through the deceased complainant and the other through this widow, but none of them was substantiated on record---Four co-accused in the case had been acquitted on the same set of evidence by Trial Court and their acquittal had not been challenged---Benefit of doubt was granted to accused in circumstances and they were acquitted accordingly.

Dr. Z. Muhammad Babar Awan for Appellant.

Hassan Kazmi, Asstt. A.-G. for the State.

Date of hearing: 5th December, 2006.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 383 #

2008 P Cr. L J 383

[Lahore]

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

MUHAMMAD MAQBOOL alias KOOLA----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.286 and Murder Reference No.223 of 2000, heard on 5th June, 2007.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Benefit of doubt---F.I.R. had been lodged with a delay of two hours---Three brothers had been involved in the case out of which only accused had faced the trial---According to prosecution accused and his one brother both had caused injuries to the deceased with "Chhuris", but neither the seats of injuries were mentioned in the F.I.R., nor the injuries had been specifically attributed to them therein---Similar role had been assigned to the accused and his brother, but his said brother was never tried and complainant did not make any serious effort to get him tried---Complainant did not appear to have witnessed the occurrence, otherwise he would not have spared the co-accused who had also caused injuries to deceased---Accused would have spent some time in causing fifteen injuries to the deceased and the eye-witnesses, if present, must have interfered or at least they could raise alarm to attract the neighbours---Delay in conducting post-mortem examination of the deceased had fortified the view that the accused were not known to the complainant party---Eyewitness who resided at a distance of 60 Kms. from the place of recovery had deposed about the recovery of "Chhuri" and he did not state before the Trial Court that the same was blood-stained---Recovery evidence, thus, was not credible---Motive had been concocted after the occurrenbe---Accused was acquitted on benefit of doubt in circumstances.

Syed Muzahir Ali Akbar Naqvi for Appellant.

Ch. Anwar-ul-Haq Pannu for the Complainant.

Ch. Muhammad Aslam Sindhu, Addl. P.-G. for the State.

Date of hearing: 5th June, 2007.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 390 #

2008 P Cr. L J 390

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

MUHAMMAD TAJ and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.163, Criminal Revision No.68 and Murder Reference No.246 of 2001, heard on 5th December, 2006.

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

---Ss. 302/34 & 449/34---Appreciation of evidence---Names of the accused, roles played by them, names of the deceased and names of the eye-witnesses had been mentioned in the promptly lodged Weapon of offence had been recovered from the accused---Report of Fire-Arm .Expert was positive---Testimony of eye-witnesses inspired confidence which could not be discarded due to his relationship with the deceased---Other two eye-witnesses living quite close to the place of occurrence were independent witnesses having no relationship with the deceased and no animus against the accused for their false implication---Ocular testimony was corroborated by medical evidence, incriminating recoveries and positive report of the Fire-Arm Expert---Three innocent persons had been killed and the accused having no soft corner for others deserved deterrent punishments to make an example for others---Convictions and sentences of accused were upheld in circumstances.

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

----Ss. 302/34 & 449/34---Appreciation of evidence---Related witnesses, credibility of---Principles---Relationship of an eye-witness with the deceased is not by itself sufficient to discard his testimony, if the same inspires confidence.

----Ss. 302/34 & 449/34---Administration of criminal justice---Sentence---Hardened criminals need deterrent punishments---Persons having no soft corner for others cannot be treated leniently and they must be dealt with severely awarding deterrent punishments to them to make an example for others.

Ch. Riaz Ahmad for Appellants.

Tanveer Iqbal, A.A.-G. for the State.

Waqar Azeem Siddiqui for the Complainant.

Date of hearing: 5th December, 2006.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 395 #

2008 P Cr. L J 395

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD ZAHID----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.791 and Murder Reference No.356 of 1999, heard on 28th May, 2007.

Penal Code (XLV of 1860)---

----Ss. 302(b), 458, 392 & 412---Appreciation of evidence---Motive behind the occurrence was robbery---Presence of eye-witnesses being inmates of the house could not be challenged or denied, who had no ill-will or grudge against the accused---F.I.R. had been lodged within an hour of the occurrence---Eye-witnesses who had given very convincing, straightforward and detailed account of the whole occurrence, had corroborated each other on all material points---Accused on refusal of the deceased to hand over the keys, had fired at her which proved fatal---Accused had spent considerable time in the house, lights were on and prosecution witnesses who had close look of the accused, had correctly identified them and stated about the different roles played by them during the occurrence---Medical evidence had supported the prosecution story about the seat of injury and the cause of death of the deceased---Recovery of two golden bracelets from the iron box at the instance of accused had also corroborated the prosecution version---Prosecution case stood proved through very reliable, trustworthy and coherent ocular account which was supported by medical evidence and corroborated by the circumstances of the case---Convictions and sentences of accused were upheld in circumstances.

Ghulam Rasool v. The State 1988 SCMR 557 and Khadim Hussain v. The State 1985 SCMR 721 ref.

Ch. Muhammad Inayat Ullah Cheema for Appellant.

Ch. Muhammad Pervez for the Complainant.

Nemo for the State.

Date of hearing: 28th May, 2007.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 402 #

2008 P Cr. L J 402

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

MUQARRAB KHAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeals Nos.72, 109 and Murder Reference No.176 of 2001, heard on 5th December, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Appeal was not pressed on merits and only commutation of death sentence with imprisonment for life was prayed for---Accused according to F.I.R. had accompanied his father and being of young age he must have acted under the influence of his father---Accused had fired a single shot and did not repeat the same---Injury was on the back of the shoulder of the deceased---Deceased according to post-mortem report had died due to excessive bleeding---Aforesaid grounds had led towards mitigation of sentence---Conviction of accused was maintained, but his sentence of death was converted into imprisonment for life with benefit of S.382-B, Cr.P.C. in circumstances.

Liaqat Shah and others v. The State 1985 SCMR 1415; Muhammad Riaz and another v. The State 1999 SCMR 976; Nazeer Ahmad v. The State 1999 SCMR 396; Muhammad Afzal v. The State 1999 SCMR 2851; Khuda Yar and 2 others v. The State 1992 SCMR 357; Muhammad Altaf and others v. Muzaffar Hussain and others 1993 SCMR 944; Muhammad Arshad and 2 others v. State PLD 1996 SC 122 and Mirza Zaheer Ahmad and another v. State and others 2003 SCMR 1164 ref.

Malik Rab Nawaz Noon for Appellant.

Syed Hasnain Kazmi, Asstt. A.-G. for the State.

Sh. Zameer Hussain for the Complainant.

Date of hearing: 5th December, 2006.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 405 #

2008 P Cr. L J 405

[Lahore]

Before Muhammad Farrukh Mahmud and Syed Shabbar Raza Rizvi, JJ

HABIB SULTAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.1185 and Murder Reference No.477 of 2001, heard on 22nd January, 2007.

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

----S. 302(b)---Appreciation of evidence---Eye-witnesses were related to the deceased as well as to the accused---Occurrence having taken place in light, non-identification or misidentification of accused was out of question---None of the witnesses had any serious enmity with the accused so as to involve him in a false case---Presence of eye-witnesses in the house of occurrence at the time of incident was usual and natural---Ocular account of occurrence was consistent and was fully supported by medical evidence---Contradictions in evidence were minor and immaterial which crop up naturally when the same are recorded after lapse of considerable time---Place of occurrence was not challenged---Lapses on the part of the Investigating Officer would not make the complainant to suffer in the presence of convincing and direct evidence---Motive was proved by consistent prosecution evidence---Even otherwise the same was immaterial as the prosecution case had been proved beyond doubt against the accused---Intention of the accused had to be gathered from his action and the weakness or inadequacy of motive would not adversely affect the, prosecution case, nor the same would be considered as a mitigating circumstance---Defence plea comprising of wild allegations levelled in sheer frustration was not supported by any evidence---Accused was a desperate criminal who had killed three innocent persons---No mitigating circumstance existed in favour of accused---Conviction and sentence of death of accused were affirmed in circumstances.

Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758; Weram v. The State 1985 PCr.LJ 372; Muhammad Akbar and another v. The State PLD 2004 SC 44 and Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427 ref.

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

---S. 302(b)---Appreciation of evidence---Conflict between ocular and medical evidence---Effect---Where there is any conflict between ocular and medical evidence, the latter does not overweigh the coherent and trustworthy ocular evidence.

Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758 ref.

---S. 302(b)---Appreciation of evidence---Lapses of Investigating Agency---Effect---Complainant would not suffer due to the lapses on the part of the Investigating Agency in the presence of convincing and direct evidence.

Weram v. The State 1985 PCr.LJ 372 rel.

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

----S. 302(b)---Appreciation of evidence---Motive---Inadequacy or weakness of motive would not adversely affect the prosecution case, nor the same can be considered as a mitigating circumstance---Intention of the killer is to be gathered by his action.

Muhammad Akbar and another v. The State PLD 2004 SC 44 and Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427 ref.

Sardar Khurram Latif Khan Khosa for Appellant.

Mirza Abdullah Baig (in Murder Reference) and Mrs. Siddiqua Altaf Khan (in Appeal) for the State.

Date of hearing; 22nd January, 2007.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 414 #

2008 P Cr. L J 414

[Lahore]

Before Tariq Shamim, J

KHIZER HAYAT----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.3404-B of 2007, decided on 6th July, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-A(i) & 337-A(iii)---Bail, refusal of---Accused was nominated in F.I.R. and specific role had been attributed to him and his co-accused of causing injury falling under S.337-A(iii), P.P.C. which entailed a sentence of 10 years' imprisonment and was hit by the prohibitory clause under S.497, Cr.P.C.---Case of accused was distinguishable from his co-accused, inasmuch as, the injury specifically attributed to accused in the F.I.R. was duly found mentioned in the Medico-Legal Report---Accused had failed to point out any malice or ill will on the part of the complainant or the police for his implication in the case---Ample incriminating material was available on record to connect accused with the crime alleged to have been committed by him---Bail petition by accused was dismissed, in circumstances---Trial Court, while allowing post-arrest bail to co-accused, had overlooked the fact that specific allegation of causing injury falling under S.337-A(iii), P.P.C. as attributed to him attracted prohibition contained in subsection (1) of S.497, Cr.P.C.---Notice was issued to said co-accused to show cause as to why bail allowed to him by the Trial Court be not cancelled/recalled.

Zulfiqar Ali for Petitioner.

Ch. Muhammad Aslam Shaharyar for the Complainant.

Ch. Amjad Hussain, Dy. P.-G. with Muhammad Aslam S.-I. for the State.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 416 #

2008 P Cr. L J 416

[Lahore]

Before Muhammad Farrukh Mahmud and Syed Shabbar Raza Rizvi, JJ

SALEHOON SHAH----Appellant

Versus

THE STATE-Respondent

Criminal Appeal No.77-J and Murder Reference No.233 of 2002, heard on 16th January, 2007.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Occurrence was not, denied by the accused, but he had taken plea of defence of his property and self-defence---Presence of eye-witnesses at the spot was also challenged---Complainant was the elder brother of the deceased and the other eye-witness was "Hafiz-e-Qur'an" who had given reasonable explanation for being present at the scene of occurrence---None of the eye-witnesses had any enmity with the accused to rope him in a false case---Eye-witnesses had corroborated each other on material particulars---Medical evidence had fully supported the ocular account of occurrence---Accused had failed to substantiate his plea of self-defence on record as he had neither appeared as a witness in his defence, nor he had examined any other essential witness in support thereof---Deceased, who was armed with a hatchet could not be believed to have advanced towards the accused who was armed with a double-barrel gun---Prosecution, as such, had brought home the guilt to the accused---Motive of personal enmity between the accused' and the deceased seemed to have been concocted by the prosecution---Genesis of the fight was not known---Deceased aged about 65 years being a mature man would not be expected to lose his composure without any provocation---Some altercation appeared to have taken place between the accused and the deceased over cutting of wood which culminated into unfortunate incident---Accused did not attempt to cause any other injury to the deceased or to any prosecution witness---Conviction of accused was upheld but his death sentence was reduced to imprisonment for life in circumstances.

Ms. Tasneem Amin for Appellant.

Mazhar Sher Awan Addl. P.-G. for the State.

Date of hearing: 16th January, 2007.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 422 #

2008 P Cr. L J 422

[Lahore]

Before Khawaja Muhammad Sharif, J

KHIZAR HAYAT and another----Petitioners

Versus

THE STATE----Respondent

Criminal Revision No.932 of 2006, decided on 19th October, 2006.

Criminal Procedure Code (V of 1898)---

----S. 514---Forfeiture of surety bond and imposition of full surety amount on the surety---Sureties had impugned order of the Trial Court whereby full surety amount was imposed on them for their failure to produce accused persons involved in a murder case in the court---Sureties had contended that both accused . for whom they stood sureties had died due to the blast of a landmine---Fact was that both accused for whom sureties had given bonds were residents of Afghanistan and after their release on bail, they must have gone to Afghanistan---Stand taken by the sureties before the Trial Court and the High Court that accused had died due to the blast of a landmine, did not appeal to reason as they had failed to produce any evidence in support of the said vehement contention---No illegality, irregularity or jurisdictional defect existed to warrant interference with impugned order in the revisional jurisdiction of High Court, which was a speaking and legal one---Sureties were directed to deposit surety amount within specified period.

Muhammad Ameer Khan Niazi for Petitioner.

Nemo for the State.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 424 #

2008 P Cr. L J 424

[Lahore]

Before Muhammad Farrukh Mahmud and Syed Shabbar Raza Rizvi, JJ

ALA-UD-DIN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.1885 and Murder Reference No.779 of 2001, heard on 9th January, 2007.

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

----Ss. 302(a) & 302(b)---Appreciation of evidence---Sentence, reduction in---Accused had not denied the occurrence but he had given his own version---Both the versions, thus, were to be examined in juxtaposition to find out the truth---Father of the deceased had given an ocular version of the occurrence who could not be discredited due to his relationship with the deceased, as he had reasonably explained his presence at the spot---Other eye-witness of the incident was an independent witness who had no ill-will against the accused for his false involvement in the case---Ocular testimony was fully supported by the medical evidence and the circumstances of the case---Motive behind the occurrence also stood proved on record---Defence plea put forth by the accused was not supported either by any independent evidence or by the circumstances of ' the case---Both the defence witnesses were related to the accused and having failed to convincingly explain their presence at the scene of occurrence, they were chance witnesses---Defence witnesses had contradicted each other on material points and they were not worthy of any credence---Defence plea was also belied by medical evidence---Prosecution, thus, had successfully. proved its case against accused---Occurrence had taken place in the sitting room of the father of accused---Situation had worsened during conversation on exchange of hot words between the parties when accused was directed by his father to kill the deceased---Accused who was in early twenties of his life caused a single fire which proved fatal---Accused did not repeat the fire and he appeared to have acted under the influence of his father, which could be treated as a mitigating circumstance for awarding lesser sentence to him---Trial Court had erroneously convicted the accused under S.302(a), P.P.C. by overlooking the provisions of S.304, P.P.C.---Said conviction of accused was consequently altered to S.302(b), P.P.C. and his sentence of death was reduced to imprisonment for life in circumstances with benefit of S.382-B, Cr.P,C.

Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427; Nazir Ahmad v. The State 1999 SCMR 396; Noor Elahi alias Kala v. The State 2001 SCMR 1363 and Muhammad Latif v. The State PLD 2006 SC 273 ref.

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

----S. 302(b)-Appreciation of evidence---Case of two versions---Principle---In cases of different prosecution and defence versions both the versions are examined in juxtaposition in order to find out which of the two is true or nearer to truth.

----S. 302(b)---Sentence, reduction in---Mitigating circumstance---Accused acting under the influence of his father---Murder committed by the accused under the influence of his father can be treated to be a mitigating circumstance for awarding lesser sentence of imprisonment for life to him.

Nazir Ahmad v. The State 1999 SCMR 396; Noor Elahi alias Kala v. The State 2001 SCMR 1363 and Muhammad Latif v. The State PLD 2006 SC 273 ref.

Sardar Muhammad Latif Khan Khosa for Appellant.

Kazim Iqbal Bhango and Ch. Imtiaz Ahmad for the State (in Murder Reference and Criminal Appeal respectively).

Syed Zahid Hussain Bukhari for the Complainant.

Date of hearing: 9th January, 2007.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 432 #

2008 P Cr. L J 432

[Lahore]

Before Muhammad Farrukh Mahmud and Syed Shabbar Raza Rizvi, JJ

ASAD ABBAS----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.417, Criminal Revision No.281 and Murder Reference No.194 of 2002, heard on 23rd January, 2007.

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

----S. 302(b)---Appreciation of evidence---Promptly lodged F.I.R. and receipt of dead body of the deceased at the hospital within 45 minutes thereafter, had not only ruled out the possibility of any fabrication, but had also denoted the presence of eye-witnesses at the scene of occurrence---Eye-witnesses had corroborated each other on material points--Ocular version was natural, coherent and trustworthy and was fully supported by medical evidence---Prosecution case stood fully proved against the accused beyond doubt---Accused was about 21 years of age at the time of occurrence and he, while armed with a deadly weapon had fired not once but twice at the deceased---Young age of accused would not constitute a mitigating circumstance in his favour for award of lesser punishment---Conviction and sentence of accused were maintained in circumstances.

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

----S. 302(b)---Death sentence, mitigation of---Young age of accused---Mere young age of accused would not constitute a mitigating circumstance in his favour for awarding lesser punishment.

Ch. Abdul Rasheed for Appellant.

Mian Muhammad Sikandar Hayat for the Complainant.

Inayat Ullah Khan, Addl. P.-G. for the State.

Date of hearing: 23rd January, 2007.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 438 #

2008 P Cr. L J 438

[Lahore]

Before Tariq Shamim, J

GHULAM MUHAMMAD and 2 others----Petitioners

Versus

THE STATE and another----Respondents

Criminal Revision No.13 of 2007, decided on 7th February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.337-A(i), 337-A(iv), 427, 341, 147 & 149---Suspension of sentence---Sentences awarded to the petitioners were short and before the criminal revision was fixed for final hearing, it was quite possible that the petitioners could have served their entire sentence---Petition for suspension of sentence was accepted and the sentence of the petitioners was suspended and they were admitted to bail.

Nasim Ullah Khan Niazi for Petitioner.

Ch. Amjad Hussain, Dy. P.-G. for the State.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 441 #

2008 P Cr. L J 441

[Lahore]

Before Muhammad Farrukh Mahmud and Syed Shabbar Raza Rizvi, JJ

IMTIAZ AHMAD alias TAJI and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.387 and Murder Reference No.240 of 2002, heard on 25th January, 2007.

Penal Code (XLV of 1860)---

----S. 302(b)---Juvenile Justice System Ordinance (XXII of 2000), S.12---Appreciation of evidence---Sentence reduction in---Occurrence had taken place in daylight---Accused being known to prosecution witnesses, their identity was not in question---Presence of eye-witnesses at the scene of occurrence stood plausibly explained---Eye-witnesses had corroborated each other on all material particulars of the case---Medical evidence had fully supported the ocular version which was natural, consistent and coherent---Deceased had received sixteen sharp-edged weapon injuries which could not be caused by a single person of tender age---Non-recovery of "Chhuri" from accused and infirmity of evidence of recovery of weapon at the instance of co-accused would not weaken the prosecution case---Conviction of both the accused under S.302(b), P.P.C. was maintained in circumstances---Accused was hardly of 15 years of age at the time of occurrence---Juvenile Justice System Ordinance, 2000, had been enforced before conclusion of trial and the accused being a juvenile could not be deprived of the benefit of the said Ordinance---Sentence of death of accused was consequently altered to imprisonment for life in view of S.12 of the Juvenile Justice System Ordinance, 2000---No specific injury was attributed to co-accused---Injury on the neck of the deceased was specifically attributed to the juvenile accused---According to prosecution case itself due to the conduct of the deceased the co-accused had felt humiliated in the eyes of the co-villagers---Death sentence of co-accused was also reduced to imprisonment for life in circumstances.

Sadaqat Ali Butt for Appellants.

Inayat Ullah Khan Niazi, Addl. P.-G. for the State.

Date of hearing: 25th January, 2007.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 451 #

2008 P Cr. L J 451

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD IRFAN and another----Petitioners

Versus

ADDITIONAL SESSIONS JUDGE, KHUSHAB and another----Respondents

Criminal Revision No.979 of 2006, decided on 8th November, 2006.

Penal Code (XLV of 1860)---

----Ss. 302, 364, 201 & 202---Juvenile Justice System Ordinance (XXII of 2000), S.7---Appreciation of evidence---Age of accused, determination of---Petitioners, who claimed to be Juvenile, filed application that they should be tried by a Juvenile Court---Trial Court directed Medical examination of petitioners by a Medical Board, which order/direction was complied with---Report submitted by the Radiologist, showed that petitioners were more than eighteen years of age at the time of alleged occurrence---School Leaving Certificate submitted by one of the petitioners in proof of his claim was doubtful, which could not be relied upon---Form B' submitted by father of the petitioner before National Database and Registration Authority, bore no attestation or any official stamp on it so as to vouchsafe its veracity---Said document also failed to inspire confidence---Divergence in the date of birth of the other petitioner recorded in school leaving certificate and FormB', was quite suspicious---Report submitted by Radiologist had clearly shown that bone age of both the petitioners was about twenty years---Such medical opinion had not been displaced in the case---No jurisdictional infirmity, illegality of approach, irregularity of procedure or perversity of reasoning on the part of the Trial Court had been pointed out before the High Court so as to warrant interference in the matter through exercise at its revisional jurisdiction.

Muhammad Amir Khan Niazi for Petitioners.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 457 #

2008 P Cr. L J 457

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

KHALIL alias NANNA and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.1562 and Murder Reference No.667 of 2001, heard on 21st November, 2006.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Case was of two versions, one put forward by prosecution and other by one of accused persons in his statement under S.342, Cr.P.C., which was adopted by rest of accused---Prosecution case revolved around the statements of complainant, who was uncle of deceased and other prosecution witness who was son of deceased---Rest of the eye-witnesses were not produced---No previous enmity or ill-will existed between the parties---Both complainant and prosecution witness lived at a distance of 5/6 Killas from the spot and they had gathered there per chance---Prosecution witness was not present at the time of occurrence and complainant not only had made dishonest improvement before the Trial Court, but also had suppressed certain material facts---Medical evidence had supported prosecution case, only to the extent that deceased lost his life due to injuries caused by fire-arms, but it did not support prosecution evidence---No empty was recovered from the spot---Investigating Officer did not make honest statement before the Trial Court and he had conducted investigation of the case in lopsided manner---Discrepancies were found between the prosecution witnesses and the Investigating Officer about recording of statements of P. Ws. and reporting of matter---Post-mortem examination of dead body of deceased was conducted on the next day of occurrence---F.I.R., in fact was recorded after much delay and due deliberations---Witnesses had given exaggerated version of the occurrence---No credence, in circumstances could be placed on the testimony of prosecution witnesses---Recovery could not be used against co-accused, who had no motive whatsoever to join accused in the occurrence---Weapon recovered at the instance of said co-accused was never sent to Forensic Science Laboratory-Prosecution, in circumstances had failed to establish its case against both accused beyond doubt---Judgment passed by the Trial Court to the extent of said two accused, was set aside and they were acquitted of all the charges and were released---Death sentence to accused persons was not confirmed and Murder Reference was answered in the negative.

Sardar Shahbaz Ali Khan Khosa and Ch. Liaqat Ali Sindhu for Appellants.

Malik Suleman Ahmad and S.D. Qureshi for the State (in Criminal Appeal No.1562 of 2001 and Murder Reference No.667 of 2001) respectively.

Date of hearing: 21st November, 2006.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 467 #

2008 P Cr. L J 467

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD ALI----Petitioner

Versus

DISTRICT POLICE OFFICER and others----Respondents

Writ Petition No.4998 of 2007, decided on 23rd May, 200?

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B, 200 & 154---Constitution of Pakistan (1973), Art.199---Constitutional petition---Registration of criminal case---Petitioner had claimed that property of his deceased brother and his sisters was being .transferred by respondent on the basis of a forged power-of-attorney which was not registered in accordance with law---Petitioner had further stated that he approached local police for registration of a criminal case against said respondent under S.154, Cr.P.C., but without any fruitful result whereupon an application under Ss.22-A & 22-B, Cr.P.C. was moved to Additional Sessions Judge, but same was also dismissed relying on a manoeuvred police report and on unfounded reasons including that petitioner should, in the first place, file suit under S.39 of the Specific Relief Act, 1877---Stance canvassed in the petition rested on disputed factual controversy, requiring determination through detailed inquiry/recording of evidence, which exercise could not be undertaken while discharging jurisdiction under Art.199 of the Constitution---Besides such constitutional handicap, petitioner had an alternative remedy of proceeding in the matter by filing a private complaint under S.200, Cr.P.C.---Law had also provided course for investigation/inquiry, if needed according to the opinion of the Magistrate cognizant of the private complaint through an order under S.200, Cr.P.C. in view of availability of equally efficacious remedy by way of private complaint---Registration of criminal case could not be directed in circumstances---Petitioner could have recourse to other alternative remedy of filing private complaint.

The Province of East Pakistan v. Kshiti Dhar Roy and others PLD 1964 SC 626; Muhammad Younas Khan and 12 others v. Government of N.-W.F.P. through Secretary Forest and Agriculture, Peshawar and others 1993 SCMR 618 and Muhammad Saleem Bhatti v. Syed Safdar Ali Rizvi and 2 others 2006 SCMR 1957 ref.

Muhammad Amir Khan Niazi for Petitioner.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 474 #

2008 P Cr. L J 474

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

NASEEB ULLAH----Appellant

Versus

THE STATE----Respondent

Criminal Appeals Nos.243, 244 and Murder Reference No.169 of 1999, heard on 14th November, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Complainant was father of deceased and other prosecution witness also related to deceased---Enmity between the prosecution witnesses and accused was admitted---Both prosecution witnesses had made dishonest improvement during trial on almost all material points and said improvement was made by prosecution witnesses to bring their evidence in conformity with medical evidence---Both witnesses made dishonest improvement about weapon after knowing about the post-mortem report---Circumstances of case had knocked out the story given in F.I.R. and same reflected on the presence of prosecution witnesses at the time of occurrence---Both prosecution witnesses had also contradicted each other on all material points---Evidence on record had fully established that prosecution witness was not present at the time of occurrence and it could not be said that F.I.R. was lodged at the time which was reflected in the F.I.R.---Medical evidence had contradicted the version given in F.I.R.---Prosecution could succeed only in establishing enmity between accused and prosecution witnesses, but no independent witness had been produced in support of motive---Recovery of weapons at the instance of accused could not be used against them as neither those were sent to Forensic Science Laboratory nor any empty was recovered from the scene of occurrence---Eye-witnesses were not worthy of credence and prosecution case was not free from doubt---Allowing appeal, judgment passed by the Trial Court, was set aside, accused were acquitted of all charges, and were released.

Kh. Sultan Ahmad for Appellant.

Kh. Awais Mushtaq and Muhammad Azhar for the Complainant.

Mian Abdul Qayyum Anjum for the State (in Criminal Appeal).

Muhammad Saleem Shad for the State (in Murder Reference).

Date of hearing: 14th November, 2006.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 481 #

2008 P Cr. L J 481

[Lahore]

Before Tariq Shamim, J

KHALIL AKHTAR----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.8779/B of 2007, decided on 17th January, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.302, 324, 109, 148 & 149---Pre-arrest bail, refusal of---In the first investigation conducted by a Sub-Inspector, accused was declared innocent on the basis of number of affidavits produced by him in support of his defence, but persons who gave affidavits were not examined by the Investigating Officer during the course of investigation---On application of complainant for transfer of investigation, same was transferred and was entrusted to A.S.P., who, after conducting a thorough investigation, came to the conclusion that accused and co-accused had actively participated in the occurrence and were responsible for the murder of two innocent persons---Material on the basis of which opinion of guilt had been formed by the A.S.P., was tangible and convincing, which carried weight and could not be lightly brushed aside---In the F.I.R., apart from specific injuries ascribed to co-accused, it was stated that all accused had resorted to firing at deceased---F.I.R. to that extent had implicated accused with active participation in the murder of deceased which was fully corroborated by the post-mortem report of deceased who had received eight fire-arm injuries on his body---Shortly after making the statement before the police on the basis of which F.I.R. was lodged, complainant succumbed to the injuries---Statement of complainant in circumstances carried weight as under impending death, possibility of complainant-deceased making a false statement in order to implicate accused in the crime was very remote----Offence, with which accused was charged, was punishable with death, which fell within the ambit of the prohibitory clause of S.497, Cr.P.C.---Bail petition was dismissed, in circumstances.

Syed Iqbal Hussain Shah Gillani for Petitioner.

Asif Javed Qureshi for the Complainant.

Ch. Amjad Hussain, Dy. P.-G. for the State along with Muhammad Akram, S.-I. with record.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 484 #

2008 P Cr. L J 484

[Lahore]

Before Muhammad Farrukh Mahmud and Syed Shabbar Raza Rizvi, JJ

HAQ NAWAZ----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.1942 of 2001 and Murder Reference No.24 of 2002, heard on 10th January, 2007.

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

----S. 302(b)---Appreciation of evidence---Presence of both the eye-witnesses, uncle and son of the deceased, on the spot at the relevant time was amply proved on record---Eye-witnesses had no previous ill-will or enmity against the accused so as to involve him in a false case---Son would never substitute the killer of his father by an innocent person---Eye-witnesses had given consistent, coherent, natural and convincing account of occurrence, which was fully supported by medical evidence and corroborated by the circumstances of the case---Daylight was still available at the time of incident---Accused was known to prosecution witnesses---No question of identification of accused was involved---Delay in lodging the F.I.R. had plausibly been explained by the complainant---Even otherwise, in the absence of previous enmity delay in lodging the F.I.R. would not matter much---Prosecution, thus, had successfully proved its case against the accused---Accused, while armed with a deadly weapon had gone to the scene of occurrence and taken the life of an innocent person by aiming his shot at the head and face of the deceased which had disclosed his intention---Accused had also levelled wild allegations of immorality against the women-folk of the deceased and the complainant party---Firing of only one shot and absence or weakness of motive did not justify non-awarding of normal penalty of death to the accused---No mitigating circumstance was available in favour of accused---Conviction and sentence of death of accused were upheld in circumstances.

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

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S.154---First information report---Delay in lodging F.I.R.---Delay in lodging F.I.R. in the absence of previous enmity would not matter much.

---S. 302(b)---Appreciation of evidence---Sentence---Circumstances not constituting mitigation of sentence---Motive being insufficient or shrouded in mystery cannot be considered as circumstance justifying withholding of normal sentence of death---Similarly firing of only one shot and not repeating the same is not a mitigating circumstance in favour of the killer for riot awarding to him death sentence.

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

Mirza Abdullah Baig for Appellant (on Court's call).

Shabbir Ahmad Lali, Dy. P.-G. assisted by Ashfaq Ahmad Chaudhry for the State (on Court's call).

Date of hearing; 10th January, 2007.

2008 P Cr. L J 517

[Lahore]

Before Muhammad Farrukh Mahmud and Syed Shabbar Raza Rizvi, JJ

IRFAN KHAN alias FANI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.99 and Murder Reference No.76 of 2002, heard on 18th January, 2007.

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

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---Eyewitnesses though related to the deceased and inimical towards the accused, could not be discredited for such reasons when their presence at the spot was established and their statements being natural and coherent rang true---F.I.R. having been promptly lodged had ruled out the possibility of any fabrication---Had the complainant been not present at the time of occurrence, matter could not be reported to the police within half an hour---Name of other eye-witness was mentioned in the F.I.R. and his statement was also recorded soon after registration of the case---Eye-witnesses had corroborated each other on all material aspects of the case---Ocular testimony was corroborated by medical evidence---Motive behind the occurrence was proved---Crime-empties recovered from the spot had matched with the gun used by the accused in the incident---Conviction of accused was upheld as the charge against him stood proved---Accused. was found to be about 22 years of age at the time of commission of the offence---Right from his childhood accused must have been listening about the murder of his father---Accused after the murder of his father was under the influence of his uncles who according to evidence on record had influenced him to commit the murder of the deceased---Death sentence of accused was 'reduced to imprisonment for life in circumstances.

Ajun Shah v. The State PLD 1967 SC 185; Khuda Yar and 2 others v. The State and others 1992 SCMR 357; Muhammad Din v. The State 1985 SCMR 625; Faqir Hussain v. The State 2003 SCMR 1565; Mehmood Rashid and others v. The State 2003 SCMR 581 and Muhammad Latif v. The State PLD 2006 SC 273 ref.

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

----S. 302(b)---Appreciation of evidence---Inimical eye-witness---Principle---Mere enmity of the eye-witness with the accused is not enough to discard his statement if the same is natural, coherent and rings true and his presence at the scene of occurrence is established.

---S. 302(b)---Appreciation of evidence---Principle---Man is after all a creature of his environment and therefore, his action must be judged in the background of the society to which he belongs.

Ajun Shah v. The State PLD 1967 SC 185 ref.

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

---S. 302(b)---Sentence, reduction in---Mitigating circumstance---Acting of accused under the influence of his elder is a mitigating circumstance for awarding him lesser punishment.

Khuda Yar and 2 others v. The State and others 1992 SCMR 357; Muhammad Din v. The State 1985 SCMR 625; Faqir Hussain v. The State 2003 SCMR 1565; Mehmood Rashid and others v. The State 2003 SCMR 581 and Muhammad Latif v. The State PLD 2006 SC 273 ref.

Syed Zahid Hussain Bukhari assisted by Mian Muhammad Ismail Thaeem and Ms. Khalida Perevin for Appellant.

Mazhar Sher Awan, Addl. P.-G. for the State.

Date of hearing: 18th January, 2007.

2008 P Cr. L J 543

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

ZULFIQAR MEHMOOD alias ZAKAR HUSSAIN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.128, Criminal Revision No.50 and Murder Reference No.619 of 2001, heard on 6th February, 2007.

Penal Code (XLV of 1860)---

----S. 302(b)-Appreciation of evidence---Occurrence having taken place at the time when light was available, assailant could easily be identified if known to prosecution witnesses---Matter was reported to the police promptly and it could not be said that F.I.R. was lodged after unexplained delay---Prosecution witnesses had given a very consistent account about the occurrence and had corroborated each other on all material points---Both prosecution witnesses had no personal enmity or grudge against accused who was single one in the case, so as to depose against him falsely under oath---Both eye-witnesses were subjected to lengthy cross-examination, but intrinsic value of their evidence could not be shaken---Case was not that of wrong identification-Complainant/ prosecution witness stood the acid test of cross-examination---Accused had not stated that he was not previously known to prosecution witnesses as he himself claimed that an altercation had taken place between him and complainant---Evidence on record had fully established presence of prosecution witnesses at the spot at relevant time---Direct evidence was fully supported by medical evidence---Medical evidence had supported ocular account---All the four empties recovered from the pistol, tallied with the pistol recovered at the instance of accused---Motive as set in F.I.R. had been fully supported by prosecution witnesses---Prosecution in circumstances, had successfully proved its case against accused through direct evidence which was fully supported by medical evidence and corroborated by recovery of empties from the spot---Accused having acted in a cruel manner by repeated firing at the deceased, no mitigating circumstance existed in his favour---Appeal of accused was dismissed, Murder Reference was answered in the affirmative and sentence of death awarded to accused by the Trial Court, was confirmed.

Weram v. The State 1985 PCr.LJ 372 rel.

Sardar Khurram Latif Khan Khosa for Appellant.

Muhammad Hussain Chhachhar, Addl. P.-G. for the State.

Tariq Masood Khan for the Complainant.

Date of hearing: 6th February, 2007.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 550 #

2008 P Cr. L J 550

[Lahore]

Before Sardar Muhammad Aslam and Tariq Shamim, JJ

KHURAM SHAHZAD----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.7818/B of 2007, decided on 14th January, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9, 25 & 51---Bail, refusal of---Factually 3.5 kilograms opium powder was recovered from the possession of accused on his personal search by the complainant and other officials out of which 50 grams was separated and sent to the Chemical Examiner for analysis---Report of Chemical Examiner had shown that sample sent for analysis tested positive for opium as well as for alkaloid--Keeping in view the report of the Chemical Examiner as well as the quantum of narcotic recovered from accused, it could be safely said that the offence attracted the provisions of Ss.6 & 9 of the Control of Narcotic Substances Act,1997---Provisions of S.103, Cr.P.C. had been expressly excluded from applicability in cases of narcotic substances by virtue of S.25 of Control of Narcotic Substances Act, 1997---Non-compliance with the provisions of S.103, Cr.P.C., thus, could not be considered a valid ground for extending the concession of bail to accused---Accused had not been able to provide any legal justification for keeping such a huge quantity of narcotic in his possession---Bar contained in S.51 of Control of Narcotic Substances Act, 1997 to the grant of bail was attracted with full vigour in the case---Concession of post-arrest bail could not be extended to accused as prima facie, ample incriminating material was available on record to connect accused with crime alleged to have been committed by him.

Fida Jan v. The State 2001 SCMR 36 ref.

Ch. Munir Ahmed for Petitioner.

Ijaz Ahmed Bajwa, Dy. P.-G. for the State.

A.D. Naseem, Special Public Prosecutor for A.N.F. on Court's call.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 554 #

2008 P Cr. L J 554

[Lahore]

Before Muhammad Farrukh Mahmud and Syed Shabbar Raza Rizvi, JJ

NADEEM ASIF alias MITHU----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.482 and Murder Reference No.191 of 2002, heard on 25th January, 2007.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 337-A(i), 148 & 149---Appreciation of evidence---Sentence, reduction in---Case of two versions---Matter was reported to the police almost after 12 hours of occurrence, while police station was at a distance of 15 miles only---Explanation in lodging F.I.R. with considerable delay offered by the complainant was not supported by documentary evidence and statement of Doctor---Story given in the F.I.R., was not worthy of any credence---Defence had brought on record evidence worthy of credence in order to prove that occurrence did not take place in the manner as stated by the witnesses---Recoveries of guns at the instance of accused and their tallying with two empties collected from the spot, was not worthy of credence as empties were kept at `Thana'/police station till recovery of guns and both were sent together to the Forensic Science Laboratory---Facts brought on record had revealed that prosecution had not come with whole truth---Defence plea, found support from the statement of defence witness to the extent that it was the complainant party, which was aggressor---Defence witness was not sure that fire was accidental or intentional---Both parties had not come out with whole truth---Initially quarrel took place between accused and complainant party and thereafter situation worsened as accused used his gun---Conviction of accused who used gun was altered from offence under S.302(b), P.P.C. to S.302(c), P.P.C. and reduced his sentence to 14 years' R.I., with benefit of S.382-B, Cr.P.C.---One of co-accused who had already served his sentence, had been released-Other co-accused remained in jail for about three years and four months, his sentence was reduced to the period already served out by him in jail as same would meet the ends of justice.

Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502 ref.

Nasir-ud-Din Khan Nayyer and Ghazanfar Ali Bhatti for Appellant.

Inayat Ullah Khan Niazi, Addl. P.-G. for the State.

Date of hearing: 25th January, 2007.

2008 P Cr. L J 574

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUNSABDAR----Appellant

Versus

KHALID JAVED alias MUHAMMAD KHALID and 7 others----Respondents

Criminal Appeal No.794 of 2006, decided on 17th January; 2007.

Criminal procedure Code (V of 1898)---

----S. 417(2-A)---Penal Code (XLV of 1860), Ss.337-A(i), (iv)/34---Appeal against acquittal---Trial Court while acquitting accused had observed that one of the accused had also received injuries during the incident, he was medically examined on the same day and probable duration of the injury was the same, but said injuries had been suppressed by the complainant---Prosecution had stated that three accused were allegedly armed with hatchets at the time of incident, but Doctor who medically examined three injured persons, did not observe those injuries on their bodies to be result of sharp-edged weapons---Previous enmity existed between both the parties and weapons allegedly recovered from accused were not stained with blood and the recovery evidence was not relied upon as it could not be established that same weapons had been used during the occurrence---Trial Court had given valid reasons for the acquittal of accused---Counsel for complainant had failed to point out that the findings arrived at by the Trial Court were result of any non-reading or misreading of material evidence on record---Interference in appeal against acquittal was a rare phenomenon which could not be made merely on the ground that after perusal of evidence second view could also be adopted while the view in favour of accused was to be preferred---Case was not fit for interference in appeal against acquittal.

The State v. Munawar Hussain 2005 YLR 1872 rel.

Naeem-ullah Khan Niazi for Appellant.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 576 #

2008 P Cr. L J 576

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

NOOR MUHAMMAD and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.707 and Murder Reference No.291 of 2002, heard on 7th February, 2007.

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

----S. 302(b)---Appreciation of evidence---Both prosecution witnesses had levelled specific allegations and had attributed specific injuries to all, five accused---Three co-accused had been acquitted and no appeal had been filed against their acquittal---Both the witnesses had been disbelieved qua acquitted accused---While convicting accused, Trial Court relied upon recoveries and motive---Both accused had made parrot like statements in examination-in-chief---Delay of more than 24 hours in recording statement of injured prosecution witness, without any reason had cast doubt on the veracity of the whole prosecution case---Injured prosecution witness, was not shy of telling lies, her statement to the effect that accused were at a distance of 1/1-1/2 feet when they fired at deceased, was also not supported by the medical evidence---Complainant also made improvements during his statement before the Trial Court and was duly confronted by his earlier statement---Both complainant and prosecution witness, had already been disbelieved qua the rest of accused, whose roles were not distinguishable from the roles of accused---Even if the recovery evidence was to be believed, it did not support prosecution case, as same was not worthy of any credence as empties collected from the spot were kept in Thana for two months and report of Laboratory was received after about 20 days from receipt of said empties---Other articles were also sent to Chemical Examiner after considerable delay---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 assailants---Injuries on the person of injured prosecution witness, were superficial lacerated wounds---Whether injured prosecution witness received fire-arm injuries during occurrence, was not free from doubt---Motive as set up by the prosecution, had not been proved---Complainant and prosecution witness could not be believed against accused in absence of reliable corroborating evidence, which was lacking against co-accused---Appeal to the extent of co-accused was accepted and judgment passed by the Trial Court to his extent was set aside---Co-accused was acquitted of the charges and was released from jail.

Muhammad Khan's case 1998 SCMR 570; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Tariq Khan v. The State 1997 SCMR 254; Rehmat alias Rehma Masih v. The State 1995 SCMR 733 and Muhammad Tasneem v. The State 1985 SCMR 160 ref.

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

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---First version of accused brought on record revealed that he caused murder because of provocation---Provocation on the part of accused was also spelt out from the circumstances of the case--Accused, in circumstances did not deserve the extreme penalty of death---Maintaining conviction of accused under S.302(b), P.P.C. his sentence of death was altered to sentence of imprisonment for life---Benefit of S.382-B, Cr.P.C. was also extended to him.

Hasil v. Emperor AIR 1942 Lah. 441; Muhammad Yaqub v. The State PLD 1969 Lah. 548 and Mairaj Begum v. Ejaz Anwar and others PLD 1982 SC 294 ref.

Ch. Nisar Ahmad Dhiloon and Masood Sadiq Mirza for Appellant (at State expense).

Muhammad Hussain Chhachhar, Addl. P.-G. for the State.

Date of hearing: 7th February, 2007.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 586 #

2008 P Cr. L J 586

[Lahore]

Before M. Bilal Khan and Tariq Shamim, JJ

GULRAIZ AKHTAR and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.316, 184/J, Criminal Revisions Nos.238, 239, Murder Reference No.142 of 2003 and Criminal Miscellaneous No.379/M of 2004, heard on 6th December, 2007.

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

----Ss. 302, 109 & 34---Appreciation of evidence---Occurrence had taken place in broad-daylight and F.I.R. was recorded with promptitude in which accused had been nominated as perpetrators of the murder of deceased---Promptly lodged F.I.R. proved that same was genuine document and it had excluded the possibility of fabrication or false implication---Presence of complainant at the time and place of occurrence with the deceased could not be doubted and presence of other prosecution witnesses at the place of occurrence at the relevant time was well explained---Both said witnesses had corroborated each other in all material aspects and had unanimously furnished an accurate account of the occurrence---Witnesses were in consensus as to the time and place of occurrence, the identity of accused, the weapons used by them and the locale of injury caused by accused to the deceased---Minor discrepancies in the testimony of said witnesses, were not of much significance being natural due to influx of time between the date of incident and recording of their testimony by the Trial Court---Evidence furnished by said witnesses was credible and confidence inspiring and despite being subjected to lengthy cross-examination, defence had not been able to create any significant dent in their testimony---Mere relationship of the eye-witnesses with the deceased was not by itself sufficient to discredit their evidence---Prosecution witness whose statement was fully corroborated by other prosecution witness, had fully brought home the charge of abetment and conspiracy against accused---Eye-witness account was in conformity with the medical evidence---Recovery of weapons of offence and the empties stood proved from the testimony of the witnesses which further provided corroboration to the eye-witness account---Motive aspect of the case was proved, however, even if there was no motive, murder could be committed in the absence of the motive as motive related to the state of mind of a criminal---Proof of motive was also not a legal requirement where penalty of death for murder was to be awarded---Eye-witnesses had furnished an accurate account of occurrence which was beyond reproach and was credible in all respects---Prosecution had proved its case beyond reasonable doubt against accused by producing at the trial the most credible eye-witness account supported by the evidence of conspiracy/abetment and corroborated by the evidence of recovery of weapon of offence from accused as well as medical evidence.

Talib Hussain and others v. The State 1995 SCMR 1776 and Waris Khan v. The State 2001 SCMR 387 rel.

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

----Ss. 302, 109 & 34---Appreciation of evidence---Abetment---Reduction in sentence---Judgment of the Trial Court to the extent of conviction of all accused persons and sentences awarded to three out of four accused persons was unexceptionable and called . for no interference---Fourth accused who was alleged to have abetted the offence with his co-conspirator, however, had been awarded sentence of death by the Trial Court which was on the harsher side, particularly as he had not directly participated in the murder of deceased, but had only abetted the offence---Sentence awarded to said accused was reduced to imprisonment for life.

Ms. Yasmeen Sehgal, Defence counsel.

Muhammad Safdar Shaheen Pirzada and Safdar Shahbaz Latif Khan Khosa for Appellants.

Sh. Najam-ul-Hassan and Sher Afgan Asadi for the Complainant.

Ch. Muhammad Hussain Chhachhar, Addl. P.-G. for the State.

Date of hearing: 6th December, 2007.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 638 #

2008 P Cr. L J 638

[Lahore]

Before Syed Asghar Haider, J

MUHAMMAD USMAN GHANI and 2 others----Petitioners

Versus

SHABANA NOREEN and 2 others----Respondents

Criminal Revision No.762 of 2007, decided on 22nd January, 2008.

Criminal Procedure Code (V of 1898)---

----S. 540---Summoning of material witnesses---Powers of the court---Section 540 Cr.P.C. had bestowed power upon the court to summon material witnesses if it would deem it essential for just decision of the case and it was the prerogative of the court to summon or not to summon witnesses and no right was bestowed upon the parties---Impugned order reflected that the Trial Court felt no need to summon witnesses in that context---Petitioners were granted opportunity to produce any witness, they deemed essential, but said opportunity was not availed by them---Application for summoning witnesses at belated stage, was thus not maintainable.

Ch. Anees-ur-Rehman for Petitioner.

Naseem Ullah Khan Niazi for Respondent No. 1.

Mrs. Farzana Shahzad Khan, D.P.-G.

2008 P Cr. L J 663

[Lahore]

Before M. Bilal Khan and M.A. Zafar, JJ

ALI RAZA alias RAZA HAIDER and 2 others---Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.7792/B of 2007, decided on 13th February, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51---Bail, grant of---Further inquiry---Record had established that case against accused was result of mala fide---Accused were also got involved in another criminal case though they were not named as accused in that case---Accused were arrested in that case, but were admitted to bail and the Court, while deciding bail application in that case, gave clear finding that case was registered against accused as a result of mala fide---Recovery memo. in the case was without F.I.R. number and alleged recovery had not been effected at the instance of either of accused persons and Charas in question was taken into possession from the courtyard and none of accused was apprehended at the spot---Validity---Law was not to be stretched in favour of prosecution and bail could not be withheld as punishment---Benefit of doubt arising, if any, could be given even at bail stage---Accused was presumed to be innocent till he was proved guilty beyond reasonable doubt by the prosecution---Notwithstanding the bar contained in S.51 of Control of Narcotic Substances Act 1997, bail could be granted to accused---Prima facie reasonable grounds were available to believe that the guilt of accused was a matter of further inquiry falling within the meaning of S.497(2), Cr.P.C.---Accused were admitted to bail, in circumstances.

Gul Zaman v. The State 1999 SCMR 1271 rel.

Ch. Imran Raza Chadhar for Petitioners.

Syed Faisal Raza Bokhari, Dy. P.-G. for the State.

M. Waris, S.-I. with record.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 668 #

2008 P Cr. L J 668

[Lahore]

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

ASGHAR ALI----Petitioner

Versus

ABDUL RASHID and 2 others----Respondents

Criminal Appeal No.1021 of 2007 and Cr.S.P.L.A. No.57 of 2002, decided on 3rd October, 2007.

Criminal Procedure Code (V of 1898)---

----S. 417(2)---Penal Code (XLV of 1860), S.302/34---Petition for special leave to appeal against acquittal---Counsel for petitioner/complainant had alleged that respondents/accused had been acquitted merely on the opinion of a D.S.P.---One respondent was attributed Lalkara and was also alleged to have taken deceased into his Japha ---In view of role of said respondent, petition to his extent was dismissed---Injury ascribed to the other respondent on deceased being found on his body, petition was converted into appeal and notice was directed to be issued to him.

Dr. Ehsan-ul-Haque Khan for Petitioner.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 670 #

2008 P Cr. L J 670

[Lahore]

Before Asif Saeed Khan Khosa and Hasnat Ahmad Khan, JJ

MUHAMMAD ABBAS and 2 others----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1 of 2006 in Criminal Appeal No.714 of 2004, decided on 20th February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S.302---Suspension of sentence---Petitioner had sought suspension of his sentence and release on bail during pendency of his appeal before High Court---Petitioner was empty-handed during the alleged occurrence and he had not caused any injury to any person during the incidence---Petitioner, according to prosecution, had taken deceased in his clasp and had facilitated one of co-accused in inflicting injuries upon him with a dagger---Seats of the injuries sustained by deceased, prima facie, had rendered it doubtful that said injuries could have been caused to deceased when he was in the clasp of other person---Petitioner happened to be a real brother of his two co-accused---Bad blood existed between the parties, the question regarding spreading the net wide by the complainant party to the extent of petitioner as also the question regarding vicarious liability of petitioner, would require serious consideration at the time of hearing of the main appeal---Petitioner was convicted and sentenced by the Trial Court about two and a half years ago and there was no prospect of an early hearing of main appeal---Allowing petition, sentence passed by the Trial Court against petitioner, was suspended accordingly.

Altaf Ibrahim Qureshi for Appellants.

Mian Bashir Ahmad Bhatti, Dy.P.-G. for the State.

Qari Abdul Karim Shahab for the Complainant.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 674 #

2008 P Cr. L J 674

[Lahore]

Before Abdul Shakoor Paracha and Syed Sakhi Hussain Bokhari, JJ

FAYYAZ MASIH----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.482/M in Criminal Appeal No.370 of 2005, decided on 28th November, 2005.

Criminal Procedure Code (V of 1898)---

----S. 426---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Suspension of sentence---Petition for---Allegation against accused was that 400 grams of Charas was recovered from him---Accused, who was convicted and sentenced for six months, had served out imprisonment for one month and 16 days---Accused had already been given the benefit of S.382-B, Cr.P.C.---Sentence awarded to accused being short, he was enlarged on bail, accordingly.

Muhammad Tanvir Chaudhry for Petitioner.

Muhammad Khan Zaman State Counsel.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 679 #

2008 P Cr. L J 679

[Lahore]

Before Tanvir Bashir Ansari and Sardar Muhammad Aslam, JJ

GUL AFSAR KHAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.435 of 2000, decided on 24th May, 2004.

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

----Ss. 9(c), 14 & 15---Appreciation of evidence---Report of Chemical Examiner in respect of 23 Kgs. Charas sent for chemical examination, was positive---Prosecution witnesses had fully supported case against accused---Counsel for accused had not been able to indicate any material discrepancy in the statements of prosecution witnesses---Even in the statement under S.342, Cr.P.C., accused had not denied the recovery of such huge quantity of Charas from the shop in question---Accused had not urged any ulterior motive against the police or the prosecution---Cumulative effect of the evidence on record was sufficient to pinpoint accused who had been proved to have been directly concerned with the offence---Appreciation of evidence conducted by the Trial Court did not suffer from any procedural or factual fault---No view different from the one expressed by the Special Judge could be taken---Sentences passed by the Trial Court against accused, however must be construed to run concurrently and the Trial Court was not justified in omitting to specify the concurrent nature of sentences.

Muhammad Saleheen Mughal for Appellant.

Mirza Viqas Rauf Special Prosecutor A.N.F. and Muhammad Mudassar for the State.

Date of hearing: 14th April, 2004.

2008 P Cr. L J 695

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

ABDUL RASHID----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous Nos.2208/B and 2920 of 2006, decided on 26th September, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149/34---Bail, grant of---Further inquiry---Cross-version case---Such-like cases were covered for grant of bail on the ground of further inquiry as contemplated under S.497(2), Cr.P.C. for the reason that question as to which version was correct, was to be decided by the Trial Court which was supposed to record evidence and also appraise the same in order to come to a final conclusion in that regard---Contentions raising question as to which version in the two F.I.Rs. was correct and which party was aggrieved and which party was aggressor, could be gone into and decided by the Trial Court only after elaborate evaluation of the evidence recorded by it and not at the bail stage.

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

Altaf Ibrahim Qureshi for Petitioner (in Criminal Miscellaneous No.2208/B of 2006).

Ch. Pervaiz Aftab for Petitioner (in Criminal Miscellaneous No.2920/B of 2006).

Ch. Bashir Ahmad Bhatti, D.P.G.

Muhammad Mansha S.-I. with record.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 698 #

2008 P Cr. L J 698

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Farrukh Mahmud, JJ

ATTA ULLAH alias HASNAIN alias HASSAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.148 of 2004, heard on 12th December, 2006.

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

----S. 13-A(2)(c)---Appreciation of evidence---Accused while in custody, led to the recovery of a Kalashnikov, three magazines, 56 bullets and 2 hand-grenades for which he could not produce any licence---Prosecution witnesses had fully supported prosecution . case---Accused had neither produced any defence evidence in order to prove his innocence nor he rebutted the same under S.340(2), Cr.P.C.---Police witnesses were as good as the other public witnesses and their testimony could not be discarded merely because they were police witnesses---Said witnesses had no malice or motive to falsely depose against accused---Huge quantity of ammunition was recovered from accused and such a quantity could not be planted on him coupled with the fact that positive report of the Bomb Disposal Expert was available on record and said Expert had also appeared before the Trial Court to prove the report---Prosecution had proved its case against accused beyond any shadow of doubt to sustain conviction---Conviction and sentences awarded to accused by the Trial Court, were maintained in toto.

Malik Muhammad Rafique Khan for Appellant.

Syed Hasnain Kazmi, A.A.-G. for the State.

Date of hearing: 12th December, 2006.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 701 #

2008 P Cr. L J 701

[Lahore]

Before Abdul Shakoor Paracha, J

HUMERA SHAKEEL----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.452/B of 2007, decided on 25th April, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S. 489-F---Protective bail, refusal of---No mala fide appeared against the complainant or the Police---High Court (Lahore), in circumstances declined to exercise its discretion to allow protective bail in a case which otherwise was registered in North-West Frontier Province.

2005 PCr.LJ 1716 rel.

Abdul Rehman's case 1990 MLD 1522 ref.

Ch. Muhammad Tanvir for Petitioner.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 702 #

2008 P Cr. L J 702

[Lahore]

Before M. Bilal Khan, J

HAMAAD----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.1998 of 2003, heard on 1st February, 2007.

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

----S. 13---Appreciation of evidence---Prosecution's case was not that accused was armed with a pistol or that he had used same during the course of main transaction which culminated in registration of F.I.R. under Ss.302, 148 & 149, P.P.C.---Case of prosecution as depicted in said F.I.R. was that accused was armed with a `KASSI' with which he gave a blow to the deceased---Private recovery witness was, the complainant of the F.I.R. whereas the other recovery witness had been given up---Complainant was an interested witness in the case, being the complainant in the main murder case and his sole testimony needed to be corroborated by some independent witness in the peculiar circumstances of the case, which was not forthcoming on record---No plausible reason was available for accused to have made a confession qua the weapon in question and thereafter led to its recovery, which was not the case of the prosecution---Some doubts existed in the prosecution story vis-a-vis possession of fire-arm by accused which had not satisfactorily been explained by the prosecution---Accused was acquitted of the charge, in circumstances.

Malik Muhammad Imtiaz Mahl for Appellant.

Ch. Sher Muhammad Gujjar for the State.

Date of hearing: 1st February, 2007.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 704 #

2008 P Cr. L J 704

[Lahore]

Before Tariq Shamim, J

SARFRAZ NAWAZ----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.2217/B of 2007, decided on 10th April, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 440, 148 & 149---Bail, grant of---Further inquiry---Twelve persons while armed with fire-arm weapons were alleged to have launched an attack on the complainant party, but no one was injured---Applicability of S.324, P.P.C., in circumstances appeared to be not free from doubt---Accused remained on physical remand with the police, but no weapon of offence was recovered from him---Delay of one day' in lodging F.I.Rs which had not been adequately explained, also had created doubt about the veracity of the prosecution case---Accused was behind the bars since his arrest---Accused was not required by the police for any further investigation as after completion of investigation, challan had been submitted---Case of accused, in view of the evidence available on the record was one of further inquiry calling for further probe into his guilt---Co-accused having been allowed bail, in view of rule of consistency, accused was also entitled to the same concession---Accused was admitted to bail, in circumstances.

Malik Muhammad Imtiaz Mahal for Petitioner.

Ch. Amjad Hussain, D.P.-G. for the State along with Mansha, S.-I.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 706 #

2008 P Cr. L J 706

[Lahore]

Before Tanvir Bashir Ansari, J

QAMAR SHAHZAD and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.608/B of 2004, decided on 29th June, 2004.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.420, 411 & 489-D---Bail, refusal of---Recovery of incriminating articles had been effected from accused---Offence alleged against accused was of serious nature and recovery had also been effected from them---No mala fides of the police were manifest on the record---Plea of bail of accused was rejected---Prosecution, however was directed to complete the investigations expeditiously.

M. Tanveer Chaudhry for Petitioners.

Habib-ur-Rehman for the State.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 708 #

2008 P Cr. L J 708

[Lahore]

Before Iqbal Hameedur Rahman, J

KHUDA BAKHSH----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.787/B of 2007, decided on 19th September, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 148 & 149---Bail, refusal of---Contention raised by counsel for accused required deeper appreciation of evidence, but at the bail stage, only tentative assessment was to be made---Trial of the case was likely to be concluded in the near future---Accused having remained absconded for about four months, on that account, he was not entitled to grant of bail---Charge had been framed and prosecution evidence had been completed and the trial was being delayed on account of accused---Bail, could not be granted to accused, in circumstances.

Allah Ditta v. The State 1990 SCMR 307; Muhammad Nawaz v. The State 2002 SCMR 1381; Mushtaq Ahmad v. The State 2000 YLR 1695 and Muhammad Usman v. the State 2007 YLR 937 rel.

Ch. Muhammad Iqbal for Petitioner.

Bashir Ahmad Bhatti, D.P.G. for the State.

Altaf Ibrahim Qureshi for the Complainant.

Ghulam Ali, A.S.-I.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 710 #

2008 P Cr. L J 710

[Lahore]

Before M. Bilal Khan, J

ADEEL HASSAN----Petitioner

Versus

THE STATE and another----Respondents

Criminal Revision No.665 of 2006, heard on 13th June, 2007.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 337-F(i) & 337-A(i)/34---Juvenile Justice System Ordinance (XXII of 2000), Ss.2(b), 4, 6 & 7---Appreciation of evidence---Jurisdiction of Juvenile Court---Submission of accused was that at the time of occurrence he was child within the meaning of Juvenile Justice System Ordinance, 2000 and that he needed to be tried by the Juvenile Court---Accused was got examined from a private Hospital and according to examination report he was less than 18 years of age on the day of occurrence---Counsel for State conceded that there was no option, but to refer the trial of accused to Juvenile Court established under Juvenile Justice System Ordinance, 2000---Impugned order of the Trial Court was set aside with direction that accused would be tried under the Juvenile Justice System Ordinance, 2000.

Ch. M. Lehrasib Khan Gondal for Petitioner.

Muhammad Mazhar Sher Awan, Addl. P.-G. for the State.

M.M. Alam Chaudhry for Respondent No.2.

Date of hearing: 13th June, 2007.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 713 #

2008 P Cr. L J 713

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Ijaz Ahmad Chaudhry, JJ

NASIR MASIH----Petitioner

Versus

THE STATE and another----Respondents

Writ Petition No.4881 of 2007, decided on 23rd October, 2007.

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

----Ss. 7, 21-M & 23---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---West Pakistan Arms Ordinance (XX of 1965), S.13---Constitution of Pakistan (1973), Art.199---Constitutional petition---Petitioner had sought transfer of case pending in the Court of Special Judge, Anti-Terrorism to the court of ordinary jurisdiction---Offence under S.13 of West Pakistan Arms Ordinance, 1965 against petitioner was not a scheduled offence and separate F.I.R. had been registered against petitioner for the alleged recovery of illicit fire-arm from his possession---Such F.I.R. had to be tried by the court of ordinary jurisdiction---Was yet to be established as to whether the same weapon had been used during the main occurrence or not---Mere commencement of the Trial, was not a ground for disallowing prayer of the petitioner as under S.23 of Anti-Terrorism Act, 1997, Anti-Terrorism Court in the case of non-Scheduled offence was duty bound to transfer it to the court of ordinary jurisdiction---Impugned order was set aside and the Trial Court was directed to transmit the case to Sessions Judge accordingly.

Naveed Inayat Malik for Petitioner.

Sarfraz Ali Khan, A.A.-G. for the State.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 715 #

2008 P Cr. L J 715

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

WAQAS IQBAL----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1506/B of 2007, decided on 11th October, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 322 & 325---Bail, grant of---School leaving certificate as well as matriculation certificate issued by the Board of Intermediate and Secondary Education showed that accused at the time of incident was 16 years and three months old---Accused, in circumstances had become entitled to the grant of bail as provided in the Juvenile Justice System Ordinance, 2000, subject to the limitation of being continuously in custody for a period of one year; and whose trial for such offence had not been concluded---Accused having remained in continuous custody for one year and five days he was admitted to bail, in circumstances.

Muhammad Zakir v. The State 2004 SCMR 121 and Muhammad Anwar v. The State 1998 SCMR 1001 rel.

Altaf Ibrahim Qureshi for Petitioner.

Qazi Khalid Pervaiz for the Complainant.

Ch. Bashir Ahmad Bhatti, D.P.-G.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 718 #

2008 P Cr. L J 718

[Lahore]

Before Asif Saeed Khan Khosa, J

WASEEM ABBAS----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.8382/B of 2005, decided on 5th December, 2005.

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---No proof was available with the prosecution that the substance allegedly recovered from possession of accused was being sold by accused so as to attract the provisions of Art.3 of Prohibition (Enforcement of Hadd) Order, 1979---Offence of possession under Art.4 of Prohibition (Enforcement of Hadd), Order 1979, carried a maximum sentence of two years imprisonment---No report had been received from the Chemical Examiner establishing that substance allegedly recovered from the possession of accused was "Bhang"---Challan had already been submitted after completion of investigation---Continued custody of accused in jail, was not likely to serve any beneficial purpose---Accused had no credentials or antecedent of a dealer in narcotics as no other case of similar nature stood registered against him at the relevant police station---Case against accused calling for further inquiry into his guilt within the meaning of S.497(2), Cr.P.C., he was admitted to bail.

G. Abbas Zaidi and Saif-ul-Haq Ziay for Petitioner.

Ishfaque Ahmad Chaudhry for the State with Sher Muhammad, S.-I. with record.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 719 #

2008 P Cr. L J 719

[Lahore]

Before Maulvi Anwarul Haq, J

ASHIQ HUSSAIN and another----Petitioners

Versus

ATHAR SHER and 2 others----Respondents

Criminal Revision No.101 of 2006, heard on 22nd May, 2006.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 7---Trial would commence when accused persons had been summoned and a charge had been framed in the case---Accused persons, in the present case, having not been summoned, there was no question of framing the charge---Condition precedent for passing of an order under S.7 of the Illegal Dispossession Act, 2005 i.e. `during the trial' did not exist---Impugned order being wholly without lawful authority, was set aside resultantly the matter would be deemed to be pending.

Haq Nawaz and others v. The State and others 2000 SCMR 785 ref.

Khan Dil Muhammad Khan for Petitioners.

Sardar Zafar Ahmad for Respondents Nos. 1 and 2.

Ch. Falak Sher for the State.

Date of hearing: 22nd May, 2006.

2008 P Cr. L J 754

[Lahore]

Before Fazal-e-Miran Chauhan and Hasnat Ahmad Khan, JJ

KHALID HUSSAIN alias KALA----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1925-B of 2007, decided on 17th September, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Bail, grant of---Further inquiry---Accused though was named in F.I.R., but no evidence was on record against him regarding sale or purchase of Charas---No independent private witness was associated by the police during the recovery proceedings, which had made the case of accused one of further inquiry---Accused was behind the bars since his arrest and his further detention in the judicial lock up would not serve any purpose---Maximum punishment of the offence was seven years, which did not fall within the prohibitory clause of S.497 Cr.P.C.---Accused was admitted to bail, in circumstances.

Shah Nawaz Thaheem v. The State 2003 MLD 1236 rel.

Ch. Muhammad Anwar-ul-Haq for Petitioner.

Muhammad Bashir Bhatti, Addl. P.-G. for the State.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 755 #

2008 P Cr. L J 755

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD NAWAZ----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.179/B of 2008, decided on 22nd February, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.148/149---Bail, grant of---Legal machinery was put into motion at the instance of accused himself---F.I.R. as well as the cross-version had a common feature that a gun battle had taken place between the parties on the eventful day over a land dispute---Complainant of the cross-version had not seen they occurrence---Eye-witnesses of the cross-version were residents of different villages located miles away from the place of occurrence---Complaint filed by the brother of the accused stated that accused named in the F.I.R. had been summoned by the Trial Court to face the trial---Case being one of cross-versions question as to which of the two versions was true would be determined by Trial Court after recording evidence---Further probe was required into the guilt of accused who had become entitled to bail as a matter of right, which could not be denied to him only on the ground that the trial in the case of cross-version as well as the State case had already commenced---Accused was admitted to bail in circumstances.

Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845; 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 Muhammad Umar v. The State and another PLD 2004 SC 477 ref.

Aish Bahadur Rana for petitioner.

Shahid Mehmood Khan, D.P.-G. with Muhammad Akram, S.-I. for the State.

Rai Zamir-ul-Hassan for the Complainant.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 768 #

2008 P Cr. L J 768

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

ABDUL HAMEED----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.1497 of 2002, heard on 18th March, 2004.

Penal Code (XLV of 1860)---

----Ss. 302/34, 309 & 331---Appreciation of evidence---Decision on merits---Compromise---Role attributed to accused was that he at the time of occurrence was empty-handed and he along with his co-accused had raised Lalkara instigating his co-accused to fire at deceased---Nothing was recovered from accused during investigation and he was found innocent---During trial, though legal heirs of deceased made statements with regard to their compromise with accused but accused contested the case and cross-examined prosecution witnesses to challenge their credibility---Trial Court acquitted the accused but directed him to pay Diyat to minor son of the deceased---Plea raised by accused was that he did not opt for compromise and should have been acquitted on merits---Validity---Plea raised by accused that he never opted for compromise with complainant party was supported from record---Accused was entitled to get acquitted on merits and judgment of Trial Court to the extent of acquittal of accused on the basis of compromise was set aside---Accused was not liable to pay any Diyat amount as fixed by Trial Court in the judgment and he was acquitted from the charge on merits---Appeal was allowed accordingly.

Shaukat Hussain Khan Baloch for Appellant.

Sarfraz Ali Cheema for the State.

Date of hearing: 18th March, 2004.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 782 #

2008 P Cr. L J 782

[Lahore]

Before Saghir Ahmad, J

RAFIQ AHMAD and others----Petitioners

Versus

KHAN MUHAMMAD----Respondent

Criminal Revisions Nos.172 of 2004 and 56 of 2007, decided on 25th January, 2008.

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

----Ss. 203, 247, 369 & 439---Penal Code (XLV of 1860), Ss.396/324---Sessions Court vide impugned order had restored the private complaint dismissed for non-prosecution and thereafter summoned the accused persons to face the trial---Validity---Admittedly the private complaint could not be dismissed by the Sessions Court for non-prosecution--- Section 247, Cr.P.C. was the only provision in the Criminal Procedure Code which dealt with the effect of non-appearance of the complainant, but the Sessions Court could not invoke the same for various reasons, firstly because it was not vested with such jurisdiction, secondly the private complaint was still at initial stage and accused had not been summoned and thirdly in the private complaint the allegations levelled by the complainant against the accused were not cognizable but also some of them were non-compoundable---Section 203, Cr.P.C. though dealt with dismissal of complaint, even before summoning the accused, yet such decision could be rendered only after considering the statement of the complainant (if any) and the result of the investigation or inquiry (if any) under S.202, Cr.P.C. and the Court seized of the matter believed that no sufficient grounds for proceeding with the complaint and summoning the accused existed---Section 203, Cr.P.C. was also not attracted in the case, because the complaint had been dismissed only for non-prosecution and that too without considering the material on record---Word used in S.369, Cr.P.C. was only "judgment" for the review of which certain conditions had been imposed and there was no specific embargo for the Court to correct or review its order which on the face of it was erroneous, unjust or without jurisdiction---Court might recall its own order if it suffered from inherent vice or appeared on the face of it erroneous, unjust and without jurisdiction, having regard of the material on the record---No injustice thus, had been done by the Sessions Court in reversing its earlier order dismissing the private complaint for non-prosecution, which on the face of it was illegal and had not committed any illegality or irregularity, rather had rectified the mistake promoting the cause of justice---So far as summoning of the accused was concerned, Sessions Court as well as the Inquiry Magistrate had found that offences against the accused were, prima facie, made out; truth or falsehood of the allegations would be determined in due course of trial, where accused would have full opportunity to defend themselves---Revision petitions were dismissed accordingly.

Abdul Rasheed Janjua v. The State and 2 others 2003 YLR 2211; Muhammad Asif v. The State 2001 PCr.LJ 895 and Additional Collector-II Sales Tax, Lahore v. Abdullah Sugar Mills Ltd. and others 2003 PTD 1664 ref.

(b) Administration of justice---

----Court may recall its own order if it suffers from inherent vice or appears on the face of it erroneous, unjust and without jurisdiction, having regard to the material on the record.

Muhammad Asif v. The State 2001 PCr. LJ 895 ref.

----Whatever is not prohibited, is permitted unless it specifically violates any law or rules.

Additional Collector-II Sales Tax, Lahore v. Abdullah Sugar Mills Ltd. and others 2003 PTD 1664 ref.

Sardar Mehmood Iqbal Khakwani and Nadeem Iqbal Chaudhry for Petitioners.

Talat Mehmood Kakezai for the Complainant with Mirza Mukhtar Haig, D.P.-G.

Date of hearing: 23rd January, 2008.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 790 #

2008 P Cr. L J 790

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

IJAZ AHMED----Petitioner

Versus

THE STATE and 2 others----Respondents

Criminal Miscellaneous No.33/TA of 2008, decided on 18th March, 2008.

Criminal Procedure Code (V of 1898)---

----S. 526---Penal Code (XLV of 1860), Ss.302/34, 109 & 404---Transfer of case---Petitioner/complainant had sought transfer of criminal case to some other court of competent jurisdiction on the ground that judicial officer in the case had already acquitted four of accused persons; and that petitioner apprehended that remaining accused who had been put to trial, would also be acquitted---Validity---Ground taken by petitioner for transfer of case had no force because case of each accused was to be decided on merits---Role attributed to acquitted co-accused was that of abetment, whereas the role attributed to the respondent was of actively participating in the occurrence and the Trial Court would decide case strictly on merits after complying with all the legal formalities---Transfer of case was declined.

Shoaib Zafar for Petitioner.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 795 #

2008 P Cr. L J 795

[Lahore]

Before Tariq Shamim, J

MUHAMMAD NAWAZ----Petitioner

Versus

THE STATE----Respondent

Writ Petition No.680 of 2008, decided on 28th January, 2008.

Penal Code (XLV of 1860)---

----S. 392---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Petitioner was named in the F.I.R. and had been charged with committing an offence of a heinous nature---Argument that petitioner had been implicated in the case on account of enmity by the complainant side was devoid of any force as the counsel for the petitioner had not been able to point any material on the record in support of said plea---Mere declaration by the complainant that he was satisfied as to the innocence of one of accused, was not by itself sufficient to quash the F.I.R. which was under investigation---High Court could neither interfere in the functions of the police not in the investigative process---Controversy between the parties was factual in nature which could neither be agitated nor resolved in the constitutional jurisdiction of the High Court---Quashing of F.I.R. at present stage would amount to stifling the prosecution---Petition was dismissed.

Shahnaz Begum v. Honourable Judge of the Sindh and Balochistan High Court PLD 1997 SC 677; Brig. Imtiaz Ahmed v. Government of Pakistan through Secretary Interior Division, Islamabad 1994 SCMR 2142 and Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 ref.

Agha I.A. Imran for Petitioner.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 805 #

2008 P Cr. L J 805

[Lahore]

Before Fazal-e-Miran Chauhan and Hasnat Ahmad Khan, JJ

FAYYAZ AHMED and another----Petitioners

Versus

THE STATE and others----Respondents

Writ Petition No.804 and 1686 of 2007, heard on. 13th September, 2007.

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

----Ss. 7, 9 & 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Authority of Public Prosecutor Anti-Terrorism Court to decide the question of jurisdiction or applicability of the relevant section of Anti-Terrorism Act, 1997---Scope---Offence under S.7 of Anti-Terrorism Act, 1997 was invoked by the police in the F.I.R. on the basis of allegation of causing panic in the public---Petitioner/one of the accused persons challenged said invocation in constitutional petition before High Court---During pendency of said petition, report under S.173 Cr.P.C. was forwarded to the Public Prosecutor Anti-Terrorism Court who, after holding that facts of the case did not attract the provisions of S.7 of Anti-Terrorism Act, 1997, directed Station House Officer to submit the challan to the District Prosecutor after deleting the' offence under S.7 of the Act---Said order was challenged by the complainant in constitutional petition---Validity---Section 9 of Anti-Terrorism Act, 1997 did not authorize the Public Prosecutor to delete the offence under S.7 of the Anti-Terrorism Act, 1997---Public Prosecutor Anti-Terrorism Court had no authority to assume and abdicate the function, authority and jurisdiction of the Trial Court to decide the question of jurisdiction or applicability of the relevant section---Public Prosecutor,, Anti-Terrorism Court while passing the impugned direction, had travelled beyond his jurisdiction and authority and had committed a grave illegality---Impugned direction being without jurisdiction and legal authority, was quashed and set aside---Impugned order/direction passed by the Public Prosecutor, was directed to be treated by the Judge Anti-Terrorism Court as a report under subsection (7) of S.9 of Anti Terrorism Act, 1997.

Mirza Shaukat Baig and others v. Shahid Jamil and others PLD 2005 SC 530 and Muhabbat Ali another v. The State 2007 SCMR 142 ref.

Muhammad Khalid Ashraf Khan for Petitioners.

Mian Bashir Ahmed Bhatti, D.P.-G. and Saghir Ahmed Bhatti for Respondents.

Date of hearing: 13th September, 2007.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 812 #

2008 P Cr. L J 812

[Lahore]

Before Kazim Ali Malik, J

ABDUL RAZZAQ----Petitioner

Versus

S.H.O. and others----Respondents

Writ Petition No.2469/Q of 2007, decided on 5th March, 2008.

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

----Ss. 379, 427, 447, 448 & 506---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of proceedings in F.I.R.---Complainant got registered F.I.R. against accused/petitioner alleging that plot in question which was purchased by his father from its original owner by means of registered sale-deed, after death of his father/vendee devolved on him; that demarcation of said plot, had revealed that certain persons occupied different portions of said plot, constructed houses thereon and had alienated same to accused and others---Transactions in 'favour of accused persons mentioned in F.I.R. had admittedly 'been effected by means of registered sale-deeds long time back and said registered sale-deeds in favour of accused persons were still holding the field---Sale-deeds in question executed and registered many years back, had not been cancelled by the Registrar or the civil court---Complainant called in question legality and correctness of long standing entries of registered sale-deeds before the S.H.O. concerned without disclosing and explaining as to why and under what circumstances he chose to keep quiet for years---Accused persons constructed houses over the plot in dispute many years back and then alienated same to their co-accused long ago by means of registered sale-deeds after having got approved site plan---No answer was available from the side of complainant as to why he did not stop construction when same was being raised on the plot in dispute by accused persons---Demarcation dispute falling within the exclusive jurisdiction of the Revenue Authorities, Police Station was not the proper and competent forum for resolution of the same---High Court though could not assume the role of investigator, but, it could not allow the Investigating Officer to go beyond his allotted area by assuming the jurisdiction of civil court or the Revenue Authorities---No useful purpose would be served if proceedings were allowed to continue in the criminal case as it would amount to abuse the process of the court---Proceedings in the impugned F.I.R., were quashed, in circumstances.

Dr. Ghulam Mustafa v. The State 2008 SCMR 76 rel.

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

----Ss. 441 & 447---Offence of criminal trespass---Ingredients---Ingredients of the offence of criminal trespass under S.447 Cr.P.C. as defined by S.441 Cr.P.C., were to commit trespass to intimidate, insult or annoy any person in possession of the property in dispute---Difference existed between civil trespass by way of taking possession of the property without the consent of the person in possession and the criminal trespass for which insult or annoyance to the person in possession of such property was a condition precedent---Person would not be annoyed or intimidated in absentia and in such a situation the charge of criminal trespass would not be sustainable.

Abdul Rasheed and another v. The State 1983 PCr.LJ 42 rel.

Muhammad Ilyas Siddiqui for Petitioner.

Syed Shahid Hussain Kazmi, A.A.-G. with Abdul Sattar S.H.O. and Muhammad Manzoor, A.S.-I.

Rab Nawaz Noon and Muhammad Kokab Iqbal for Respondent No.2.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 822 #

2008 P Cr. L J 822

[Lahore]

Before Saghir Ahmad, J

ABDUL LATIF----Petitioner

versus

THE STATE----Respondent

Criminal Revision No.178 of 2005/BWP, decided on 28th January, 2008.

Criminal Procedure Code (V of 1898)---

----S. 514---Forfeiture of bail bond---Validity---Petitioner while becoming surety had undertaken that the accused for whom he was submitting bond would surrender himself before the Court in every eventuality irrespective of the fact that his bail application was dismissed on merits or was allowed---Where the accused defaulted in appearance at the last crucial moment i.e. announcement of the order, the petitioner surety would become liable in terms of the bail bond---Initiation of proceedings under S.514, Cr.P.C., therefore, was quite in accordance with law---Trial of main case had ended in compromise and the accused had been acquitted---Amount of penalty of Rs.30,000 imposed upon the petitioner was reduced to Rs.15,000 in circumstances---Revision petition was disposed of accordingly.

Malik Muhammad Aslam for Petitioner.

Mirza Mukhtar Baig, D.P.-G. for the State.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 831 #

2008 P Cr. L J 831

[Lahore]

Before Khurshid Anwar Bhinder, J

MUHAMMAD SAJAD----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.9424/B of 2007, decided on 4th March, 2008.

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

---S. 497---Penal Code (XLV of 1860), Ss.392/411---Bail, grant of---Entire incident was in oblivion, as no accused person was identified by any one except for the complainant which was a routine story---Proper legal course had not been adopted by the prosecution for holding the identification parade in order to identify the real accused as enunciated under Art.22 of Qanun-e-Shahadat, 1984---Evidence of recovery of two mobile phones from the accused was not corroborated by any independent evidence and the same alone could not justify his punishment---Holding of identification test could not be dispensed with simply because the accused committing the robbery had been subsequently found in possession of the robbed goods---Guilt of accused required further inquiry and he was admitted to bail in circumstances.

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

----Art. 22-Identification parade---Scope and purpose---Holding of identification parade is a check against false implication and it becomes necessary in cases where the culprits are not nominated in the F.I.R.---Identification parade must be held as early as possible after the arrest of the accused, but not later than fifteen days---Identification parade is always held for two purposes, one to establish identity of the culprit and the second to pin-point the role played by him in the commission of the offence---Even if the identification parade is held, but no role is attributed to the accused during the commission of the offence, the identification parade loses its sanctity.

----Ss. 392/411---Qanun-e-Shahadat (10 of 1984), Art.22---Identification parade, dispensation of---Holding of identification test cannot be dispensed with simply because the person accused of committing the robbery has been subsequently found in possession of the robbed goods.

Amir Farooq Neil for Petitioner.

Ghulam Qadir Bari, A.P.-G. along with Asghar Ali Verk, S.-I. for the State.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 837 #

2008 P Cr. L J 837

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chauahry, JJ

FALAK SHER and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.952, Criminal Revision No.487 and Murder Reference No.443 of 2001, heard on 11th May, 2006.

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

----S. 302(b)-Appreciation of evidence---Conflict between medical evidence and ocular testimony had clearly suggested that the occurrence had not taken place in the manner narrated by the prosecution---Prosecution witnesses had not spoken the whole truth and suppressed the material facts making the prosecution case highly doubtful---On the other hand, accused had taken a specific stand of having exercised his right of self-defence to save his mother, sister and brother, who had been injured by the complainant party, by firing a single shot which caused the death of the deceased---Said injured relatives of accused had supported his defence version by appearing as defence witnesses in the case--Injured persons had received injuries in the same occurrence, which had been suppressed by the prosecution---Medical evidence had also supported the defence version suggesting that the complainant party was the aggressor---Motive set up by the prosecution itself had suggested that complainant party being aggrieved of the previous alleged acts of the accused party could have attacked them---Keeping in view the number and nature of the injuries received by the three close relatives of the accused, he could not be said to have exceeded the right of self-defence by firing a single shot during the occurrence to save them from the aggression of complainant party---Accused was acquitted in circumstances.

Sultan Khan v. Sher Khan and others PLD 1991 SC 520 ref.

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

----S. 302(b)---Appreciation of evidence---If the prosecution version is disbelieved, the defence version taken by accused in his statement recorded under S.342, Cr.P.C. is to be rejected or accepted in toto and not in piecemeal to suit the prosecution version.

Sultan Khan v. Sher Khan and others PLD 1991 SC 520 ref.

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Accused was not attributed any injury to the deceased or to any prosecution witness and he was alleged to have made only ineffective firing---Defence version revealed that accused had not participated in the occurrence---Possibility of false implication of accused being relative of the other accused and the injured persons by widening the net, could not be ruled out, and he was acquitted on benefit of doubt in circumstances.

Munir Ahmad Bhatti and Muhammad Taqi Khan for Appellants (in Criminal Appeal No.952 of 2001).

Kh. Faheem Ijaz and Mazhar Iqbal Sidhu for the Complainant and Petitioner (in Criminal Revision No.487 of 2001).

Ch. Muhammad Siddique for the State (in Murder Reference No.443 of 2001).

Tariq Waheed Khan for the State (in Criminal Appeal No.952 of 2001).

Mian Muhammad Bashir for the State (in Criminal Revision No.487 of 2001).

Date of hearing: 11th May, 2006.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 850 #

2008 P Cr. L J 850

[Lahore]

Before Khurshid Anwar Bhinder, J

NAZAR HUSSAIN and 2 others----Petitioners

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.869/B of 2007, decided on 30th January, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.364/302/109---Bail, grant of---Accused, no doubt, had been attributed the role of abetment of the offence, but no eye-witness account of the commission of the offence was available---Statements of prosecution witnesses that they had seen the accused going with the deceased did not necessarily mean that the petitioner accused would have asked them to take him away for committing his murder---No direct evidence had come on record to implicate the accused for the commission of offence of abetment---Trial Court would determine after recording evidence whether the offence had been committed at the behest of the accused or not---Entire matter being in oblivion, guilt of accused required further inquiry---Accused was admitted to bail in circumstances.

Malik Dost Muhammad Awan for Petitioners.

Ch. Haq Nawaz, D. D. P. P. for the State with Muhammad Qamar, S.-I.

Ghazanfar Ali Khan for the Complainant.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 852 #

2008 P Cr. L J 852

[Lahore]

Before Saghir Ahmad, J

KHERAT HUSSAIN----Petitioner

Versus

THE STATE and 2 others----Respondents

Criminal Miscellaneous No.732-B of 2007/BWP, decided on 15th January, 2008.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/148/149/109---Bail, refusal of---Accused was named in the F.I.R. with specific role of causing fire-arm injury on the wrist of the deceased---Sufficient evidence in the shape of statements recorded under section 161, Cr.P.C. by the police was available to prima facie, connect the accused with the commission of the offence, which was corroborated by the factum of recovery---Offence with which the accused was charged being punishable with death, fell within the prohibitory clause of S.497, Cr.P.C.---Mere filing of a private complaint with different set of accused did not indicate that the accused had not committed the offence---Although abscondence of an accused was not conclusive by itself to establish his guilt and its probative value depended on the facts and circumstances of each particular case and would not disentitle him to the grant of bail on this ground alone, yet the same was universally admitted as evidence of guilt of the accused and was treated as a corroborative piece of evidence---Mere possibility of further inquiry which existed almost in every criminal case, was no ground for treating the matter as one under S.497(2), Cr.P.C.---Bail was declined to accused in circumstances.

Mst. Dur Naz arid another v. Yousuf and another 2005 SCMR 1906 and Asmat Ullah Khan v. Bazi Khan and another PLD 1988 SC 621 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/148/149/109---Bail---Abscondence---Probative value---Although abscondence of an accused is not conclusive by itself to establish his guilt and its probative value depends on the facts and circumstances of each particular case, and would not disentitle him to the grant of bail on this ground alone, yet the same is universally admitted as evidence of guilt of the accused and is treated as a corroborative piece of evidence.

Mst. Dur Naz and another v. Yousuf and another 2005 SCMR 1906 rel.

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/148/149/109---Bail---Further inquiry---Mere possibility of further inquiry which exists almost in every criminal case, is no ground for treating the matter as one under S.497(2), Cr.P.C.

Asmat Ullah Khan v. Bazi Khan and another PLD 1988 SC 621 ref.

Sardar Ashiq Muhammad Khan for Petitioner.

Mian Muhammad Umair Mohsin for Legal heirs of deceased.

Mirza Mukhtar Baig, D.P.-G. with Aslam, S.-I. for the State.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 856 #

2008 P Cr. L J 856

[Lahore]

Before Khurshid Anwar Bhinder, J

MUHAMMAD SIDDIQUE----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.926/B of 2007/BWP, decided on 16th January, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.371-A & 371-B---Qanun-e-Shahadat (10 of 1984), Art.38---Bail, grant of---Accused though was nominated in the F.I.R. yet no evidence was available on record to show his involvement in the prostitution business---Whole F.I.R. was based on the confessional statements of the accused made before a Police Officer, which were not admissible in evidence in view of Art.38 of Qanun-e-Shahadat, 1984---Accused was neither apprehended performing any sexual act, nor any money was recovered from him---No independent evidence was available to connect the accused with the alleged offence---Mala fide of police was undoubtedly proved, as they had deliberately shown the arrest of all the accused outside the relevant premises and recovery of transacted money of the illegal business, which was always done inside the house---Case against accused needed further inquiry into his guilt and he was admitted to bail in circumstances.

Haji Khair Muhammad Bhadera for Petitioner.

Altaf Gohar, Addl. P.-G. for the State with Kausar Mehmood, S.-I./Complainant and Muhammad Akram, S.-I.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 858 #

2008 P Cr. L J 858

[Lahore]

Before Saghir Ahmad, J

MUHAMMAD AKHTAR and 4 others----Petitioners

Versus

THE STATE and 2 others---Respondents

Criminal Revision No.130 of 2006/BWP, decided on 11th January, 2008.

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

----Ss. 403 & 265-K---Constitution of Pakistan (1973), Art.13---Penal Code (XLV of 1860), Ss.302/109/34---Trial Court, after withdrawal of the private complaint by the complainant, had initiated proceedings in challan case and also dismissed the application of accused brought under S.265-K, Cr.P.C.---Validity---Private complaint as well as the challan case were outcome of the same incident, but the private complaint had been filed by the complainant under the apprehension that if challan case was not investigated properly, the complainant would be well within his right to withdraw the private complaint, whereas the challan case could not be taken back by the complainant---Validity---Dismissal of the complaint or its withdrawal would not attract S.403, Cr.P.C. and accused could be tried in the challan case, because mere acquittal on technical ground and not on merits, would not debar the subsequent trial in the challan case---Withdrawal of private complaint before recording of any evidence would not attract the principle "outre fois acquit", as such, would not be considered a judgment of acquittal to bar subsequent trial in the challan case---Article 13 of the Constitution, in such circumstance, was also not applicable, as the accused were alleged to have been acquitted admittedly as a result of withdrawal of the private complaint wherein they were neither prosecuted nor punished---No material illegality, irregularity or lack of jurisdiction could be pointed out in the impugned judgments---Revision petition was dismissed accordingly.

1993 PCr.LJ 576; Azmat Bibi and others v. Asfa Riaz 2002 YLR 401; Ch. Zulfiqar Ali v. Chairman, NAB and others PLD 2003 Lah. 593 and Azmat Bibi and others v. Asfa Riaz and others PLD 2002 SC 687 ref.

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

----S. 403---Persons once convicted or acquitted not to be tried for the same offence---Scope---Protection against double jeopardy embodied in S.403, Cr.P.C. would not apply in the case of third complaint when earlier two complaints were dismissed on technical grounds without recording any evidence, and without deciding the same on merits.

Azmat Bibi and others v. Asfa Riaz and other 2002 YLR 401 ref.

----Ss. 403 & 249---Order passed by Court at the initial stage on the material placed before it without recording any evidence, would not strictly be an order of acquittal in terms of S.403, Cr.P.C. according to which dismissal of a complaint, stopping of proceedings under S.249, Cr.P.C. or the discharge of the accused was not acquittal for the purpose of S.403, Cr.P.C.

Ch. Zulfiqar Ali v. Chairman, NAB and others PLD 2003 Lah. 593 ref.

S. Aasim Ali for Petitioners.

Mirza Mukhtar Baig, D.P.-G. for the State.

Date of hearing: 9th January, 2008.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 869 #

2008 P Cr. L J 869

[Lahore]

Before Muhammad Ahsan Bhoon, J

ABDUL SATTAR----Appellant

Versus

THE STATE and another----Respondents

Criminal Appeal No.1490 and Criminal Revision No.747 of 2005, decided on 7th March, 2008.

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

----S. 302(b)---Appreciation of evidence---Medical evidence had belied ocular testimony---Presence of complainant and other eye-witness who was a chance witness, on the spot at the relevant time, was disbelieved---Even if presence of eye-witnesses at the scene of occurrence was believed, they were unable to see the occurrence and identify the accused - from the place where their presence was shown---Eye-witness account was not worth reliance---Motive alleged for the occurrence was not established on the record and the same was not even put to accused in his statement recorded under S.342, Cr.P.C. and thus, could not be used for the purpose of corroboration---Abscondence of accused, no doubt, could be considered as a strong piece of evidence for his involvement in the commission of the crime, but at the same time abscondence, per se, was not proof of guilt of accused, as his disappearance after the occurrence was natural whether named rightly or wrongly---Prosecution had failed to prove its case against the accused beyond any shadow of doubt---Accused was acquitted accordingly.

1986 PCr.LJ 1723; PLD 1976 SC 695; 1971 SCMR 239; Rasool Muhammad v. Asal Muhammad and 3 others 1995 SCMR 1373; PLD 1964 SC 26; Muhammad Ahmad and another v. The State and others 1997 SCMR 89; 1983 PCr.LJ 429; Mehr Ali and others v. The State 1968 SCMR 161; Khan and another v. The State 1978 PCr.LJ 24; 1973 PCr.LJ 675; Muhammad Khan v. The State 2003 PCr.LJ 1778; Haroon Rasheed v. The State and another 2005 SCMR 1568; 2000 SCMR 1805; PLD 2001 SC 458; PLD 1972 Pesh. 92;2005 SCMR 427; 2004 PCr.LJ 1697; PLD 2004 SC 44; 2006 SCMR 1744 and 1998 SCMR 1823 ref.

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

----S. 302(b)---Site plan---Nature and scope---Site plan is not a substantive piece of evidence, nor it can take away the probative force of reliable eye-witnesses, whose statements appear to be truthful and natural, but at the same time, site plan is not a piece of waste paper and it cannot be lightly ignored when no inaccuracy is attributed to it, because it is prepared by Draftsman on pointation of eye-witnesses---Site plan, therefore, is referred to for determining the respective position of the assailant, deceased and the eye-witnesses, and it also reveals the circumstances which have been noticed by the Investigating Officer at the place of occurrence after his immediate arrival.

Haroon Rasheed v. The State and another 2005 SCMR 1568; Muhammad Ahmed and another v. The State and others 1997 SCMR 89; and Muhammad Khan v. The State 2003 PCr.LJ 1778 ref.

----S. 302(b)-Appreciation of evidence---Site plan not showing position of witnesses---Omission to indicate in the site plan position of witnesses at the time of occurrence reflects on the possibility of witnesses not being present at the time of occurrence.

Mehar Ali and others v. The State 1968 SCMR 161 and Khan and another v. The State 1978 PCr.LJ 24 ref.

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

----S. 302(b)---Appreciation of evidence---Interested witness---Principles---If an interested witness claiming to be an eye-witness charges a person with commission of an offence, the first thing which the Court has to determine is, whether he saw the occurrence and was in a position to identify the accused, whether he should be believed for convicting the accused without corroboration---If such interested witness charges only one person for the commission of crime, then in the absence of anything in evidence which renders it unsafe to rely such evidence, his evidence is to be relied upon even without corroboration.

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

----S. 302(b)-Appreciation of evidence---Related witness---Principles---Mere relationship is no ground to discard the testimony of a witness, because intrinsic worth of the testimony is to be kept in view while assessing its evidentiary value, including ill-will with accused.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S.342---Appreciation of evidence---Any incriminating evidence not 'put to accused for its rebuttal cannot be used for the purpose of corroboration.

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

----S. 302(b)---Appreciation of evidence---Motive---Insufficiency or weakness of motive would not come in the way of prosecution in the presence of strong, confidence inspiring, unimpeachable and reliable evidence---Motive is always the state of mind of an accused which cannot be proved by ocular testimony---Motive is a double-edged weapon and on the basis of same guess some one who has not seen the occurrence can involve an innocent person in the crime.

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

----S. 302(b)-Appreciation of evidence---Abscondence---Abscondence of accused has been considered as a strong corroborative evidence to support the other piece of evidence for his involvement in the commission of crime, but abscondence per se is note proof of guilt of an accused---Disappearance of a person named as murderer after the occurrence is natural, whether named rightly or wrongly.

Rasool Muhammad v. Asad Muhammad and 3 others 1995 SCMR 1373 ref.

Dr. Khalid Ranjha and Rana Aish Bahadar for Appellant.

Syed Muhammad Imran Sherazi, D.P.-G. for the State.

Syed Ijaz Qutab for the Complainant.

Dates of hearing: 20th, 22nd, 25th February and 7th March, 2008.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 896 #

2008 P Cr. L J 896

[Lahore]

Before Hasnat Ahmad Khan and. M.A. Zafar, JJ

ABDUL WAHEED and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.950 and Murder Reference No.706 of 2002, heard on 3rd March, 2008.

Penal Code (XLV of 1860)---

----Ss. 302(b)/34, 449/34 & 324---Appreciation of evidence---Sentence, reduction in---Time and venue of murder were not denied by the defence---Occurrence had taken place in daylight, which had been reported to the police within an hour---Ocular evidence given by the injured witnesses was duly corroborated by medical evidence, motive and other attending circumstances including the admitted facts---Presence of both the accused at the time of occurrence had not been denied--Defence version was not plausible---Both the parties however, had not given the correct picture regarding the occurrence and the possibility of a chance encounter between the parties in front of the house of the complainant party could not be ruled out in view of the backdrop of animosity between them---Accused had also received minor injuries during the quarrel---Causing of injuries to the deceased as well as to two injured prosecution witnesses by the accused was proved beyond shadow of doubt---Both the parties had suppressed the immediate cause of occurrence and' the origin of fight had remained shrouded in mystery---Was not clear as to which of the two accused had caused the fatal injury to the deceased---Sentence of death awarded to accused was converted into imprisonment for life in circumstances---Accused were acquitted of the charge under S.449/34, P.P.C. as they were not found to have trespassed into the house of the complainant party---Rest of the convictions and sentences of accused were maintained including the direction for the sentences to run concurrently---Appeal was disposed of accordingly.

Syed Ali Bepare v. Nibran Mohallah and others PLD 1962 SC 502; Allah Dad and another v. The State 1995 SCMR 142; Shehruddin v. Allah Rakhio and 5 others 1989 SCMR 1461; Sibtain Shah and others v. The State 1978 PCr.LJ 490 and Muhammad Anwar v. The State 1997 PCr.LJ 321 ref.

Ch. Naseer Ahmad Sindhu for Appellants.

Muhammad Aslam Sindhu, A.P.-G. for the, State.

Date of hearing: 3rd March, 2008.

2008 P Cr. L J 924

[Lahore]

Before Abdul Shakoor Paracha, J

NASIR KHAN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.9487-B of 2007, decided on 26th March, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Bail, refusal of---Case of accused was not at par with the case of co-accused who had been admitted to bail---Said co-accused raised plea of alibi before the Investigating Officer, which found favour with the court and they were released on bail---Validity---Accused was nominated in the F.I.R. with specific role of causing injury to the deceased---Pistol had been recovered from accused---One passerby, who was present at the spot and sustained injury, had also implicated the accused in his statement under S.161 Cr.P.C.---Accused was found guilty by the police during investigation---Report under S.173 had been submitted in the court---Offence against accused fell under the prohibitory clause of S.497 Cr.P.C.---Petition for bail was dismissed in circumstances.

A.G. Tariq Ch. for Petitioner.

Shoaib Zafar for the Complainant.

Ishaque Masih Naz, D.P.-G. along with M. Afzal A.S.-I. for the State.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 927 #

2008 P Cr. L J 927

[Lahore]

Before Syed Shabbar Raza Rizvi and Muhammad Ahsan Bhoon, JJ

SHAFQAT NAWAZ----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.284-J and Murder Reference No.556 of 2002, heard on 5th March, 2008.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 100---Appreciation of evidence---Statements of eye witnesses had material contradictions who had totally suppressed the injuries sustained by the accused during the occurrence---Medical evidence as well as defence evidence had proved the injuries of the accused---Story narrated by eye-witnesses of going with the deceased to the village of accused was neither believable nor confidence-inspiring, which had been concocted to establish their presence at the scene of occurrence---Medical evidence had contradicted the ocular testimony and the statement of the Investigating Officer---Arrest of accused and recovery of "Chhuri" as stated by the Investigating Officer were not credible---Prosecution version had been rejected being improbable---Delay in registration of F.I.R. had been deliberately caused---Defence plea taken by accused in his statement under S.342, Cr.P.C. on the other hand was supported not only by medical evidence, but also by neutral and natural defence witnesses---Accused after having received seven injuries on his person by "Chhuri" blows was justified to save himself by exercising right of private defence of his body and S.100, P.P.C. was fully attracted in the case---Element of provocation could also be not ruled out on the part of accused after seeing his wife in compromising condition with the deceased in his own house---Accused was acquitted in circumstances.

S.D. Qureshi for Appellant (on State expenses)

Dr. Muhammad Akmal Saleemi, Addl. P.-G. for the State.

Rana Habib-ur-Rehman Khan for the Complainant.

Date of hearing: 5th March, 2008.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 939 #

2008 P Cr. L J 939

[Lahore]

Before Bashir A. Mujahid, J

MUHAMMAD SARWAR and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous Nos.2947/B and 3027/B of 2004, decided on 9th July, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 120-A, B, 148 & 149---Bail, grant of---Accused were not named in the F.I.R. but were implicated on the basis of supplementary statement got recorded by the Police---Accused had not been found to have caused any injury either to deceased or to the injured---Accused had accompanied their co-accused to the village in order to commit theft where occurrence took place---Whether accused were vicariously liable for murder of deceased or not, was to be seen by the Trial Court---Contradictory stand was taken by complainant in the F.I.R. and in complaint fired by him subsequently---Accused were not involved in any criminal case previously---Offence in which accused were involved, was to be determined by the Trial Court---Accused were admitted to bail, in circumstances.

Sardar Akbar Ali Dogar and Rana Muhammad Anwar for Petitioners.

2008 P Cr. L J 956

[Lahore]

Before Muhammad Akram Qureshi, J

Mst. AMNA BIBI----Petitioner

Versus

THE STATE and 5 others----Respondents

Writ Petition No.154 of 2005, decided on 5th March, 2008.

Criminal Procedure Code (V of 1898)---

----S. 169---Constitution of Pakistan (1973), Art.199---Constitutional petition---Magistrate had discharged the accused while cancelling the case under S.169, Cr.P.C.---Validity---Evidence against the accused on record was deficient, on the strength of which the accused could not have been sent to face trial, because it would have been a futile exercise and wastage of time of the Court---Magistrate had passed the impugned order after consulting the record and making discussion therein, to which no exception could be taken---Constitutional petition was dismissed accordingly.

Shujjat Ali v. The State 2001 PCr.LJ 1665 ref.

Nemo for Petitioner.

Anwar-ul-Haq for Respondents Nos.2 and 3.

Syed Hasnain Kazmi, A.A.-G. for the State.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 982 #

2008 P Cr. L J 982

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD ALEEM----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.6481/B of 2006, decided on 1st October, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 312 & 392---Bail, grant of---Further inquiry---Accused had not been ascribed any role except for the aerial firing with the pistol, which was allegedly recovered from him during the investigation---Said pistol was sent to the Forensic Science Laboratory along with empties shown to have been recovered from the spot, but none of those matched with the said pistol as per report of Forensic Science Laboratory---Objection was raised by accused against identification parade to the effect that he had been earlier shown to the prosecution witnesses and that his photographs were also taken by the police during the investigation at police station---Only two prosecution witnesses had identified accused, but the complainant could not identify him---Mere recovery of amount was not sufficient to prima facie connect accused with alleged crime, who was not previously involved in such-like cases---Accused, for the time being had succeeded in making out a case of further inquiry---Accused was admitted to bail, in circumstances.

Fayyaz Ahmad Mehr for Petitioner.

Syed Faisal Raza Bokhari, Dy. P.-G. for the State.

Najum-ul-Arif Hussain, S.-I. with record.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 993 #

2008 P Cr. L J 993

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD AKRAM----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.852 of 2002, heard on 29th April, 2004.

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

----S. 302(b)---Appreciation of evidence---Chance witness, credibility of---Chance witness cannot be believed safely if he fails to offer cause for his presence at the spot at a given time.

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

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Eyewitnesses being closely related to the deceased and chance witnesses did not deserve safe reliance---Evidence on record had suggested that eye-witnesses were not present at the scene of occurrence and were brought there after the incident---Lantern shown at the spot as a source of light having not been taken into possession by Investigating Officer and the occurrence having taken place in the darkness of the night, identity of the assailant on the spot was not possible---Complainant had made improvement in his statement before the Court in order to bring the same in line with medical evidence which had contradicted the ocular testimony---Motive set up by the prosecution for the occurrence was not convincingly proved---Accused was given benefit of doubt and acquitted in circumstances.

Ch. Zahid Iqbal for Appellant.

Rai Haider Ali Kharal for the State.

Date of hearing: 29th April, 2004.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1008 #

2008 P Cr. L J 1008

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUSHTAQ AHMED----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.6284/B of 2007, decided on 11th October, 2007.

Criminal Procedure Code (V of 1898)---

-----S. 497(2)-Penal Code (XLV of 1860), Ss.302 & 365---Bail, grant of---Further inquiry----Accused, his mother, sister and brother-in-law had been involved in the case by the complainant, who was wife of deceased---Complainant did not disclose any reason for the abduction of the victim by accused and his other relatives---Claim of accused and his co-accused was that complainant/wife of deceased in connivance with her paramour had committed the murder of deceased; and got lodged false case against accused and his other family members in order to restrain them from lodging the murder case against her---During the investigation, pistol was recovered from co-accused, but nothing could be recovered from accused and other co-accused nominated in the F.I.R.---No evidence had been collected by the police against accused and his other co-accused to prima facie connect them with the commission of murder of the deceased---Accused, in circumstances, had succeeded in making out a case of further inquiry falling within purview of S.497(2) Cr.P.C.---Accused was admitted to bail, in circumstances.

Fayyaz Ahmad Mehr for Petitioner.

Syed Faisal Raza Bokhari, Dy. P.-G. for the State.

Ijaz Ahmad, S.-I. with record.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1033 #

2008 P Cr. L J 1033

[Lahore]

Before Hasnat Ahmad Khan and M.A. Zafar, JJ

AAS MUHAMMAD----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.1717 and Murder Reference No.694 of 2002, heard on 27th March, 2008.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---Case of promptly lodged F.I.R.---Name of accused, the role they played and the weapon of offence carried by appellant was very much mentioned in the F.I.R.---Complainant being wife of deceased, her presence in the house with her husband was most natural and her testimony could not be brushed aside without a pinch of salt---Complainant's testimony was confidence-inspiring because a wife would not leave actual killer of her husband and implicate falsely an innocent person---General principle of law was that even in a murder case conviction could be based on the testimony of a single witness, if the court was satisfied that witness was reliable, trustworthy and telling the whole truth---Duration given by the doctor, who conducted the post-mortem examination, between the death and post-mortem, fitted in with the time of occurrence narrated by the prosecution---Recovery of pellets from dead body corroborated the contents of F.I.R. lodged by complainant---Both the fire arms and sealed parcel of empty were received in the office of Forensic Science Laboratory and the report was that crime empty was fired from the left barrel of .12 bore gun---Complainant had fully supported the motive set up in the complaint---Defence introduced by accused was absurd and to prove same accused had neither opted to make statement under S.340(2) Cr.P.C. nor produced any other witness in support of his defence---Prosecution had proved its case against accused to its hilt and beyond any reasonable doubt through ocular account, which found full corroboration from the medical evidence, recovery of pellets from the dead body and also recovery of fire-arm and positive report of Fire-arm Expert--Some extenuating circumstances, however existed in favour of accused for lesser sentence, viz. firstly that it was a case of single shot; secondly occurrence had taken place at the spur of moment without any premeditation; thirdly, before the actual killing a quarrel had taken place between accused and deceased and lastly, wife of accused was living in the house of deceased after leaving house of accused and deceased was within his prohibited degree---Conviction recorded against accused by the Trial Court was maintained, but sentence of death awarded to accused was converted into imprisonment for life with the benefit of S.382(b) Cr.P.C.

Mandoos Khan v. The State 2003 SCMR 884 rel.

M. Aziz Qureshi for Appellant.

Mrs. Farzana Khan, D.P.-G. for the State.

Date of hearing: 27th March, 2008.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1039 #

2008 P Cr. L J 1039

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Khurshid Anwar Bhinder, JJ

KASHIF SADDIQUE and 2 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.327 of 2007, decided, on 27th March, 2008.

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

----Ss. 302(b), 324 & 427/149---Anti-Terrorism Act (XXVII of 1997), Ss.7(a), 7(d) & 7(c)---West Pakistan Arms Ordinance (XX of 1965), S.13---Appreciation of evidence---Eye-witnesses were truthful and natural witnesses of the occurrence, who had fully supported each other and their statements inspired confidence---Presence of injured prosecution witness could not be doubted as he had proved his injury to have been inflicted on him during the occurrence through medical evidence---Presence of complainant at the time and place of occurrence was also natural---Recoveries of weapons of offence from accused had been proved and according to the report o[ Forensic Science Laboratory the crime-empties secured from the spot had matched with the said weapons---Any technical defect committed by the Investigating Officer while effecting recoveries, such as violation of S.103, Cr.P.C. could not annul the whole prosecution evidence---Plea of alibi taken by accused that they had gone to Iran and were not present in the country on the day of occurrence, was not raised by them before the Investigating Officer and was raised at the trial after taking legal advice from an expert---Accused had failed to prove the said specific plea by adducing cogent and convincing evidence which they were obliged to do under the law, and they could not blame the prosecution for having failed to prove that fact---Defence evidence produced by accused in support of their plea of alibi did not inspire confidence---Photographs produced by accused had no evidentiary value and the hotel bill produced by them was also of no significance as the same could very easily be manoeuvred---Accused could not produce the embarkation card which was an authentic source of information regarding passenger's immigration---Report of Forensic Science Laboratory had revealed that the photographs on the passports had been changed---Accused, thus, had failed to prove the plea of alibi---Prosecution had proved all the charges against the accused, but Trial Court had failed to convict and sentence them on each charge separately, for the reason that the offence of terrorism was defined under S.6 of the Anti-Terrorism Act, 1997, as an independent offence, which was punishable under S.7 of the said Act---Accused were convicted and sentenced accordingly by High Court.

Muhammad Amin v. The State 2002 SCMR 1017 ref.

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

----S. 103---Penal Code (XLV of 1860), S.302(b)---Technical defect in recovery proceedings---Effect---Any technical defect committed by Investigating Officer while effecting recoveries, such as violation of S.103, Cr.P.C., would not annul the whole prosecution evidence.

----S. 342---Penal Code (XLV of 1860), S.302(b)---Anti-Terrorism Act (XXVII of 1997), S.7---Defence plea---Burden of proof---Accused taking a specific plea in his defence is bound to prove the same by adducing cogent and convincing evidence and he cannot blame the prosecution that it has failed to prove that fact.

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

----Ss. 302(b) & 324---Anti-Terrorism Act (XXVII of 1997), S.7---Criminal Procedure Code (V of 1898), S.417(2-A)---Appeal against acquittal---Allegation against accused was that they had facilitated the other accused by informing them through mobile phones about the movements of the deceased---Complainant had not nominated the accused in the F.I.R., but had implicated them through his supplementary statement---Phone details was not a reliable evidence because the scribe or signatory of the same had not been examined by the prosecution---Identification parade proceedings could not be relied upon for conviction of accused---Appeal against acquittal of accused was dismissed in circumstances.

Mian Aftab Farrukh and Mian Sohail Anwar with Uzma Razaq Kh. for Appellants.

Munir Ahmad Bhatti and Ch. Liaqat Ali Sindhu for the Complainant.

Sardar Mashkoor Ahmad, S.P.P. for the State.

Dates of hearing: 25th, 26th, and 27th March, 2008.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1059 #

2008 P Cr. L J 1059

[Lahore]

Before Rustam Ali Malik, J

IJAZ AHMED----Appellant

Versus

THE STATE----Respondent

Criminal Appeals Nos.1450, 256-J and Criminal Revision No.851 of 2000, decided on 31st May, 2004.

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

----S. 302(b)---Appreciation of evidence---No direct evidence was available in the case, but there was no reason to disbelieve the statement of the complainant, real brother of the deceased, who had seen the accused taking deceased along with him---Accused was allegedly having illicit relations with the wife of the deceased and he had the motive to do away with the deceased in order to remove him from his way, hence in the light of the evidence of last-seen, the evidence of extra-judicial confession and the medical evidence, charge under S.302(b), P.P.C. was clearly proved against the accused and his conviction and sentence were upheld in circumstances.

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

----S 302(b)---Appreciation of evidence---Benefit of doubt---Admittedly no eye-witness regarding "Qatl-i-Amd" of the deceased by the accused was available in the case---Motive for the incident was not attributed to accused---Complainant had not mentioned the .name of accused specifically as the person who had taken along the deceased---Accused was extended the benefit of doubt in circumstances and he was acquitted accordingly.

Malik Allah Yar for Appellant.

Qazi Zafar Iqbal for the State.

Mati Ullah for the Complainant.

Date of hearing: 18th May, 2004.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1065 #

2008 P Cr. L J 1065

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD IRSHAD----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1489/B of 2004/BWP, decided on 14th February, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.458, 380, 411, 412, 397, 337-D, 337-A(i) & 337-L(ii)---Bail, grant of---Further inquiry---Accused and five others were under arrest and the complainant added three more persons in his supplementary statement, which had made the case against accused one of further inquiry---Accused was behind the bars for the last about one year and only incomplete challan had been submitted---Trial was not likely to be commenced in near future---Accused who was in jail since 25-2-2004, was not nominated in the F.I.R. and also no identification parade was held to connect him with the commission of alleged offence---Case of accused being fully covered with the phrase case of further inquiry', he was admitted to bail.

Allah Wasaya v. The State 2004 PCr.LJ 1659 and Atta Muhammad v. The State 2004 PCr.LJ 1431 ref.

Ghazanfar Ali Khan for Petitioner.

Allah Ditta for the State.

Mukhtar Ahmad, S.-I.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1067 #

2008 P Cr. L J 1067

[Lahore]

Before Khurshid Anwar Bhinder, J

AHMAD DIN----Petitioner

Versus

HASEEB ULLAH and 3 others----Respondents

Writ Petition No.2943 of 2006, heard on 9th April, 2008.

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

----Ss. 249-A, 245, 417(2-A) & 439(5)---Penal Code (XLV of 1860), S.406---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability--.Revision petition filed by the complainant against acquittal of accused under S.249-A, Cr.P.C. by Magistrate, had been dismissed by Sessions Court being not maintainable, by the impugned order---Validity---Magistrate had the power to acquit the accused at any stage of proceedings under S.249-A, Cr.P.C.---No distinction existed between acquittal under S.249-A, Cr.P.C. or acquittal after recording of evidence under S.245, Cr.P.C.---Acquittal recorded by the competent Court of law on recording of evidence or without recording of evidence, would not determine the remedy of revision or appeal, as the same was governed by the statutory provisions of S.417(2-A), Cr.P.C. which had conferred a right to any person aggrieved by an order of acquittal to file an appeal against the acquittal---Sessions Court, therefore, had rightly found that the revision petition filed by the complainant was not maintainable under S.439(5), Cr.P.C. and the impugned order did not suffer from any illegality---Even otherwise, complainant/petitioner had an adequate remedy under S.417(2-A), Cr.P.C. of filing an appeal against the order of acquittal and the constitutional petition was also not maintainable before High Court---Constitutional petition was dismissed accordingly.

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

----Ss. 417(2-A), 249-A, 245, 265-H & 265-K---Remedy after acquittal---No distinction between acquittal under S.249-A, Cr.P.C. or S.265-K, Cr.P.C. without recording of evidence and acquittal under S.245, Cr.P.C. or S.265-H, Cr.P.C. after recording of evidence---Acquittal recorded by the competent Court of law on recording of evidence or without recording of evidence will not determine the remedy of revision or appeal, as the same is governed by the statutory provision of law contained in S.417(2-A), Cr.P.C. which provides that any person aggrieved by an order of acquittal has a right to file an appeal against the acquittal.

----Art. 199---Constitutional jurisdiction of High Court---Scope---Constitutional petition would not be competent against an order, where a statute has provided an adequate remedy against such order.

Ch. Abdul Rasheed for Petitioner.

Mubasher Iqbal Alvi and Misba-ul-Islam, A.A.-G. for the State.

Date of hearing; 9th April, 2008.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1070 #

2008 P Cr. L J 1070

[Lahore]

Before Muhammad Farrukh Mahmud, J

GHULAM NAZIK----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.339 of 2001, heard on 8th September, 2005.

Penal Code (XLV of 1860)---

----Ss. 302/34 & 308---Appreciation of evidence---Un-witnessed occurrence---Complainant and other prosecution witnesses who were closely related to deceased, were residents of a different District---Both said witnesses had been disbelieved by the Trial Court qua acquitted accused---Statements of said witnesses, in circumstances, needed deeper scrutiny and conviction could be based only, if their statements were supported by very strong independent corroboratory evidence---Both the prosecution witnesses made dishonest improvements during trial by stating that they had reached the house of accused one day prior to occurrence instead of two days prior to the occurrence---Prosecution did not produce any independent public witness in support of recoveries---Prosecution had failed to produce reliable evidence qua recoveries allegedly effected at the instance of accused---It was never safe to convict a person on the basis of recoveries alone---Prosecution had failed to prove its case against accused beyond reasonable doubt---Impugned judgment passed by the Trial Court, was set aside, accused was acquitted of the charge and was released.

Ghazknfar Ali Khan for Appellant.

Wajid Aftab Misson for the State.

Date of hearing: 8th September, 2005.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1075 #

2008 P Cr. L J 1075

[Lahore]

Before Muhammad Ahsan Bhoon, J

BABAR TAJ----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.1831 of 2005, heard on 7th April, 2008.

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

----S. 302(b)---Appreciation of evidence---Occurrence was unseen---None of the prosecution witnesses was aware about the death of the deceased---Evidence of last-seen had been disbelieved qua the three acquitted co-accused, who according to F.I.R. had called the deceased out of his house---Said evidence having no intrinsic value was not believable---Evidence of extra-judicial confession allegedly made before the relatives of the deceased was unnatural and improbable---Prosecution witnesses had only given the details of extra-judicial confession of one co-accused before the Trial Court, whereas qua the other accused persons they had stated that they had also made confession in the same manner---Nothing was available on record about the extra-judicial confession made by present accused, because any fact heard from the mouth of accused by the prosecution witnesses could not be taken as a piece of evidence, if the same had not been narrated before the Trial Court---Accused could not be convicted only on the ground that co-accused had given the details of the confession and the accused had stated in same lines, as statement of acquitted co-accused could not be used against the accused by any stretch of imagination---Even joint extra-judicial confession made by accused along with his co-accused had no sanctity in the eyes of law and the same was disbelieved---Positive report of Forensic Science Laboratory was of no consequence when the crime-empties were sent to the office of Chemical Examiner after the arrest of the accused---Accused had even not pointed out the place of dead body of the deceased---Accused was acquitted in circumstances.

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

---S. 302(b)-Appreciation of evidence---Extra-judicial confession--Any fact heard from the mouth of the accused by the witnesses of extra-judicial confession cannot be taken as a piece of evidence, if the same is not narrated before the Trial Court---Accused cannot be convicted only on the ground that co-accused has given the details of the confession and accused has stated on same lines, as statement of co-accused by any stretch of imagination cannot be used against the accused.

---S. 164---Extra-judicial confession---Nature and scope---Extra-judicial confession is the weakest type of evidence, it should be confidence - inspiring and appealing to a person of ordinary prudence, and should be based on reliable material.

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

----S. 302---Circumstantial evidence---Chain of evidence in a case of circumstantial evidence should be in a geometrical progression touching from one side to the dead body and from the other side to the neck of the accused in the shape of motive, last-seen evidence, recovery of dead body, extra-judicial confession, pointing of place of occurrence by the accused and recovery of weapon of offence, if any, and if one link (ingredient) of the chain is missing then whole evidence would be discarded and the prosecution case would fall on the ground.

Naveed Shaharyar for Appellant.

Syed Muhammad Imran Sherazi, D.P.-G. for the State.

Date of hearing: 7th April, 2008.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1080 #

2008 P Cr. L J 1080

[Lahore]

Before Muhammad Farrukh Mahmud, J

BASHIR AHMED and another----Petitioners

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.638/B of 2006/BWP, decided on 12th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-A(ii), 337-F(v), 334, 379, 342, 148 & 149---Bail, grant of---Single stick blow had been attributed to accused---Medico-legal report showed that the dimension of the injury attributed to accused was 1/2 cm x 1/4 cm x skin deep---Prima facie it did not appear to be an injury caused by "Dang" (stick)---Complainant had thrown a very wide net and had implicated twenty one persons in the case---Accused, in circumstances was admitted to bail.

Ghazanfar Ali Khan for Petitioners.

Malik Faiz Bakhsh for the State with Ahmad Sher, S.-I.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1082 #

2008 P Cr. L J 1082

[Lahore]

Before Khurshid Anwar Bhinder, J

WAZIR ALI----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.2450/B of 2008, decided on 16th April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.365-B---Bail, grant of---Accused was not nominated in the F.I.R. and no role was attributed to him, as he was only alleged to be present in the van in which the lady was abducted---Story of abduction, prima facie, seemed to be concocted and fabricated, which did not appeal to reason---Leaving her house abruptly to attend the engagement ceremony by the abductee leaving behind her seven children, seemed to be implausible and unnatural---Abductee even did not resist and make any hue and cry during the long journey, though she was being carried in a public transport---No direct evidence was available to connect the accused with the commission of the offence---Allegation against accused was apparently baseless and his case required further inquiry---Bail was allowed to accused in circumstances.

Ata Ullah Atif for Petitioner.

Shafqatullah Butt, D.P.-G. for the State with Bashir Ahmad, S.-I.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1087 #

2008 P Cr. L J 1087

[Lahore]

Before Rustam Ali Malik, J

MUHAMMAD ASIM IQBAL----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.36 and Criminal Revision No.56 of 1999, decided on 19th December, 2003.

Penal Code (XLV of 1860)---

----Ss. 364-A, 302(b) & 201---Appreciation of evidence---Sentence, reduction in---No one had seen the accused committing Qatl-i-Amd of the missing chip by throwing him in the canal---Dead body of the deceased child was never found and no report of post-mortem examination was on record---Nobody had seen the accused causing the offence of murder to disappear with the intention of screening himself from legal punishment---Nobody was mentioned as a culprit in the F.I.R.---Magistrate had not recorded the judicial confession of the accused in accordance with law and had ignored several requisites in this regard---Evidence of last seen was irrelevant as there was no proximity between the time when the deceased was seen with the accused and the time when he was allegedly thrown in the canal by the accused---Extrajudicial confession made by accused could be considered only if corroborated by other independent evidence on material points, which, in the present case, was corroborated by the prosecution evidence available on record regarding the abduction of the minor son of the complainant aged seven years by the accused, who had been taking the child along from place to place without taking the permission of his father---Record had proved that the accused had kidnapped the minor 'son of the complainant either in order to murder him or dispose him of as to be put in danger of being murdered---Conviction of accused under S.364-A, P.P.C. was consequently maintained, but under the peculiar circumstances of the case his sentence was reduced to ten years' R.I.---Accused was, however, acquitted of the charges under Ss.302(b) and 201, P.P.C. in circumstances.

Muhammad Mubeen and another v. The State 2002 PCr.LJ 729; Sanaullah and another v. The State 2003 MLD 1563; Muhammad Ashiq v. The State 1990 PCr.LJ 368; Tayyab v. The State 1995 SCMR 412; Muhammad Baqa alias Baqir v. The State 2000 PCr.LJ 465; Munir Ahmad and others v. The State 1988 PCr.LJ 116; Ghulam Hussain alias Rafaqat v. The State 2002 PCr.LJ 779; Manzoor Hussain and another v. The State 2002 YLR 1726; Khuda Bux and another v. The Crown 1969 SCMR 390; Hashim v. The State PLD 1960 (W.P.) Kar. 160; Muhammad Sharif v. The State 1969 SCMR 521; Intizar Hussain and another v. State 1995 PCr.LJ 1630; Naqibullah and another v. The State PLD 1978 SC 21; Daulat Ali and others v. Muhammad Aslam and others 1998 MLD 944; Syed Sharifuddin Pirzada v. Sohbat Khan and 3 others PLD 1972 SC 363; State of Tamil Nadu v. Nalini AIR 1999 SC 2640; Syed Kabir Hussain Shah v. The State PLD 1984 SC (AJ&K) 82; Sain Gul Wali Khan v. The State 2003 PCr.LJ 1264; Khan Muhammad and others v. The State 1999 SCMR 1818; Khalid Javed and others v. The State 2001 PCr.LJ 1968; Tariq Hussain Shah v. The State 2003 SCMR 938; Asif Ali v. The State 1998 PCr.LJ 1708; Gulsher and another v. The State 1998 PCr.LJ 1274; Ali Akbar v. State 2001 PCr.LJ 890; Moazam Shah v. Mohsan Shah and another PLD 2001 SC 458; Muhammad Afzal v. Ghulam Asghar and others PLD 2000 SC 12; Sh. Muhammad Amjad v. The State PLD 2003 SC 704 and Mst. Bakht Bano v. The Crown PLD 1950 Lah. 68 ref.

Shoukat Rafique Bajwa for Appellant.

Asif Javed Qureshi for the Complainant.

M. Saleem Shad for the State.

Date of hearing: 19th November, 2003.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1104 #

2008 P Cr. L J 1104

[Lahore]

Before Muhammad Ahsan Bhoon, J

SAEED ABBAS----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1967/B of 2008, decided on 31st March, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Bail, grant of---Case against accused was not of heavy amount and punishment provided by said offence was three years, which did not fall within the prohibition contained under S.497(1) Cr.P.C.---Investigation qua accused was complete and 'challan had been submitted in the court---Investigating Officer had not verified denial of signature on the alleged cheque in the investigation---Accused who was behind the bars since long, could not be kept there as premature punishment---Accused was granted bail, in circumstances.

Shoaib Zafar for Petitioner.

Ch. Muhammad Zafar Khan, D.P.-G. with Zia Ullah A.S.-I.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1112 #

2008 P Cr. L J 1112

[Lahore]

Before Fazal-e-Miran Chauhan, J

Mst. NAJMA BIBI----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.209/B of 2008, decided on 29th January, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2) -Penal Code (XLV of 1860), S.302---Bail, grant of---Further inquiry---Accused being a woman, her case fell under proviso 1 of S.497 Cr.P.C.---Accused was behind the bars for the last about nine months---Even otherwise, it was a case of three versions which had made case of accused one of further inquiry under S.497(2) Cr.P.C.---Accused was admitted to bail, in circumstances.

M.A. Zafar for Petitioner, Rana Iqbal Hussain Dy. P.-G. for the State.

Gulzar, S.-I. with record.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1114 #

2008 P Cr. L J 1114

[Lahore]

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

MUHAMMAD ISHAQ----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.631 and Murder Reference No.385 of 1999, heard on 25th February, 2004.

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

----Ss. 302(b) & 324---Appreciation of evidence---Benefit of doubt---Eye-witnesses were the parents of the deceased child and the injured child and background of hostility existed between them and the accused prior to the present occurrence and therefore, they were interested witnesses whose testimony deserved cautious scrutiny---Occurrence having taken place in the darkness of night in the absence of any light on the spot, eye-witnesses could not be in ,a position to identify the assailants and mistaken identity of accused could not be ruled out---Ocular testimony, therefore, could not be safely and implicitly relied upon---Motive behind the occurrence being not readily believable was of no corroborative value to the ocular account---In the absence of reliable ocular evidence medical evidence could not be of any consequence---Abscondence of accused in such circumstances could also be of no help to prosecution, because people do abscond after murder whether charged rightly or wrongly---Accused was acquitted on benefit of doubt accordingly.

Basharat and another v. The State 1995 SCMR 1735 and Abdul Rahim v. The State 1999 PCr.LJ 1305 ref.

(b) Criminal trial---

---Interested witness---Principle---Evidence of an interested witness deserves to be scrutinized cautiously.

---S. 302(b)---Abscondence---People do abscond after murder whether charged rightly or wrongly.

Basharat and another v. The State NLR 1996 Criminal 26 SC and Abdul Rahim v. The State 1999 PCr.LJ 1305 ref.

Shaukat Ali Rana for Appellant.

Muhammad Sohail Dar, A.A.-G. for the State.

Date of hearing: 25th February, 2004.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1121 #

2008 P Cr. L J 1121

[Lahore]

Before Muhammad Ahsan Bhoon, J

ZULFIQAR ALI and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.2848/B of 2008, decided on 25th April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.396 & 397---Bail, grant of---Further inquiry---Accused was not nominated in the' F.I.R. nor he was nominated even in the first supplementary statement made by the complainant after three days of the occurrence but thereafter he was nominated as accused in second supplementary statement recorded after about two months, wherein complainant had not attributed any effective role to the accused---Name of accused no doubt, was mentioned in statement under S.161 Cr.P.C. made by injured prosecution witness, but in her statement under S.164 Cr.P.C., she had exonerated him---During the course of investigation nothing was recovered from accused---Accused was declared innocent by the Investigating Officer and his name had been placed in Column No.2---Police opinion though was not binding upon the court, but it could be given weight for the purpose of bail, if same was based on sound reasoning---Challan though had been submitted in the court, but the charge had not been framed---Case of accused fell within ambit of subsection (2) of S.497 Cr.P.C., he was granted bail.

Naseer Ahmed v. The State PLD 1997 SC 347 and Sardar Munir Ahmed Dogar v. The State PLD 2004 SC 822 rel.

Ch. Muhammad Aslam for Petitioners.

Muhammad Asif Cheema, D.P.-G. with Noor Samad, S.-I.

Hamayoon Rasheed for the Complainant.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1124 #

2008 P Cr. L J 1124

[Lahore]

Before Kazim Ali Malik, J

NASEER AHMED and 2 others----Petitioners

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE, JHELUM and 3, others----Respondents

Writ Petition No.292 of 2008, heard on 26th March, 2008.

Illegal Dispossession Act (XI of 2005)---

----S. 3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Private complaint filed by the petitioners under S.3 of the Illegal Dispossession Act, 2005, against the respondents had been dismissed by Trial Court after recording preliminary evidence---Validity---Respondents were not alleged to have ever encroached upon or occupied any piece of land or portion of house owned and possessed by the petitioners/complainants---Only allegation against respondents was that they had encroached upon a public thoroughfare which was not in occupation or possession of the petitioners and no question of their dispossession or ouster from the same would, therefore, arise---Said thoroughfare was being ''used by the public-at-large including the petitioners and the respondents and for the alleged encroachment on the public path respondents were not liable under S.3 of the Illegal Dispossession Act, 2005---Report of the Revenue Authorities showed that petitioners themselves had occupied major portion of the said thoroughfare and, thus, petitioners had not approached the High Court ,with clean hands---Petitioners had the remedies under S.175 of the West Pakistan Land Revenue Act, 1967 and under S.133 of the Criminal Procedure Code, 1898, which they did not avail---Complaint filed by petitioners under S.3 of Illegal Dispossession Act, 2005, was not competent, even if the allegation of encroachment on public way was believed---Constitutional petition was dismissed in limine in circumstances.

Ch. Afrasiab Khan for Petitioners.

Nemo for Respondents.

Date of hearing: 26th March, 2008.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1126 #

2008 P Cr. L J 1126

[Lahore]

Before Muhammad Farrukh Mahmud, J

HUSSAIN BAKHSH and 2 others----Appellants

Versus

MUHAMMAD KHAN and another----Respondents

Criminal Appeal No.41 of 2005/BWP, heard on 1st August, 2006.

Penal Code (XLV of 1860)---

----S. 302/34---Appreciation of evidence---Two accused "A" and "B" were real brothers of principal accused who had caused the fatal shot and third accused "C" was also near relative of principal accused---All accused persons were shown to be armed with fire-arms, but they did not cause a single fire---No role was attributed to accused "A", except that while leaving the spot of incident, he threatened the complainant party with dire consequences in case he and other accused persons were followed---Accused "B" and "C" were saddled with the responsibility of holding the right and left arms of the deceased, but it was not explained in the F.I.R. whether at the time of holding both accused handed over their weapons to somebody else or laid down the same on the ground---No recovery was effected at instances of accused persons---Prosecution case against accused persons was not supported by any corroboratory evidence---Previous enmity and hostility existed between the parties; in such circumstances, possibility that accused persons were roped in the case due to their relationship with principal accused, could not be ruled out---Motive which had been set down in complaint, was not supported by any independent evidence---Motive as alleged was available against complainant as well as his deceased son, but complainant did not receive even a scratch at the hands of accused---Investigating Officer, who appeared as court witness, had stated on oath about the innocence of accused persons---Police opinion though was not binding upon the court, but it could not be thrown to the winds---Prosecution case against accused persons being not free from doubt, judgment passed by the Trial Court, was set aside and accused were acquitted of all the charges and were released with the observation that the present judgment would not benefit the absconding accused person whose case would be decided on its own merits.

Sardar Zafar Iqbal Khan and Ghazanfar Ali Khan for Appellants.

M.A. Farazi (on Court's call) and Wajid Aftab Misson for the State.

Nemo for the Complainant.

Date of hearing: 1st August, 2006.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1312 #

2008 P Cr. L J 1312

[Lahore]

Before Hasnat Ahmad Khan and M.A. Zafar. JJ

ZIA-UR-REHMAN---Appellant .

Versus

THE STATE---Respondent

Criminal Appeal No.1385 and Murder Reference No.661 of 2002, heard on 23rd March, 2008.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---Both eye-witnesses though were real brothers of the deceased, but they had no enmity or ill-will to falsely depose against accused---Occurrence had taken place in broad-daylight and both the parties being closely related to each other, there was no question of mistaken identity---Ocular account was fully corroborated by medical evidence---Recovery of screwdriver at the instance of accused was of no consequence for the reason that it stood admitted by the defence itself that deceased received injuries with screwdriver---Nothing was on record to substantiate the plea of defence that in fact the complainant party was aggressor as alleged by accused---No serious enmity was found between the parties---Ocular account was confidence inspiring which was corroborated by the medical evidence---Prosecution had proved its case against accused beyond any shadow of doubt---Some mitigating circumstances however, existed in favour of accused---Allegation against accused was that accused, who was armed with screwdriver, gave four injuries at the head of deceased, but only one lacerated wound penetrating deep on the outer margin of left eye orbit, with sharp edge weapon was found---Other injuries were with blunt weapon and accused had not repeated the blow---Origin of fight had been shrouded in mystery---Every possibility existed that there was some sort of altercation between the parties and deceased might have been proactive and another possibility was that one occurrence had been bifurcated in two occurrences without disclosing the interval in between the two---Conviction of accused under S.302(b), P.P.C. was maintained, but his sentence was converted from death to imprisonment for life with the benefit of S.382-B, Cr.P.C.---Sentence of fine was converted into compensation under S.544-A, Cr. P. C.

Sher Ali's case 1980 SCMR 291 ref.

Sardar Shahbaz Ali Khan Khosa for Appellant.

Syed Faisal Raza Bukhari, D.P.-G. for the State.

Mian Ghulam Rasool for the Complainant.

Date of hearing: 24th March, 2008.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1323 #

2008 P Cr. L J 1323

[Lahore]

Before M.A. Zafar, J

NISAR AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1145-B of 2008, decided on 25th February, 2008.

Criminal Procedure Code (V of 1898)--

----S. 497(2)---Penal Code (XLV of 18(50), Ss.324, 148 & 149---Bail, grant of---Benefit of doubt---Further inquiry---Only one injury was found on the left thigh of injured which was attributed to accused and his two co-accused persons---Sharp edged injury was found on the right temporal region of co-accused causing fracture of temporal bone and three blunt weapon injuries on the person of accused---Said injuries had been suppressed in F.I.R. which had clearly suggested that occurrence had not taken place in a manner as alleged by the prosecution---No recovery had been effected from accused and no crime empty had also been recovered from the spot---Police though had found the cross version of accused side to be false, but the fact remained that two persons from the side of accused, were seriously injured and their injuries had not been explained by the prosecution in any manner whatsoever; same would be determined at the time of the trial, as to which of the parties was aggressor---Prima facie, it appeared to be a case of further inquiry within the meaning of S.497(2), Cr.P.C.---Benefit of doubt arising out of the case could be given to accused even at the bail stage---Bail could not be withheld as a punishment---Accused was admitted to bail, in circumstances.

Saqib Akram Gondal for Petitioner.

Mrs. Farzana Khan, D.P.G. along with M. Aslam A.S.-I. with record.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1327 #

2008 P Cr. L J 1327

[Lahore]

Before Abdul Shakoor Paracha, J

SABIR HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.9459-B of 2007, decided on 1st April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.324/34---Bail, grant of---Further inquiry---Accused had been attributed the role of aerial firing as well as of raising a Lalkara---Whether accused had shared the common intention with his co-accused and was liable under S.34, P.P.C. was question of further inquiry---Section 324, P.P.C. provided alternate punishment of payment of "Daman"---Sentence of imprisonment was only discretionary and likely to be awarded only, if the behaviour of accused was unusually cruel or indicative, of misuse of force, in the occurrence---Intention of accused was yet to be determined at the stage of trial---Accused was behind the bars for the last seven months---Accused though was involved in other several criminal cases, but the fact remained that he had not earned any conviction---Person would be presumed to be innocent, unless convicted by a court of law---Accused was admitted to bail, in circumstances.

Zulfiqar v. The State 1994 PCr.LJ 2285 ref.

Naeemullah Khan Niazi for Petitioner.

Chaudhry Shahid Tabassum for the Complainant.

Ishaque Masih Naz, D.P.G. along with M. Mukhtar, Assistant Sub-Inspector.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1332 #

2008 P Cr. L J 1332

[Lahore]

Before Muhammad Ahsan Bhoon, J

IFTIKHAR AHMED---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3248-B of 2008, decided on 7th May, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 337-A(ii) & 337-F(i)---Bail; grant of---Further inquiry---Injury attributed to accused did not figure in the medico-legal report---Medico-legal report showed that only one injury was found on her right fore-arm while post-mortem report did not mention the injury on the right hand of deceased---Injury on the person of accused though was suppressed, but, prima facie, case of accused fell within the ambit of subsection (2) of S.497, Cr.P.C.---Bail was granted to accused in circumstances.

Naseemullah Khan Niazi for Petitioner.

Asif Mehmood Cheema, D.P.-G. with Muhammad Ashraf, A.S.-I.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1338 #

2008 P Cr. L J 1338

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD SHABBIR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.7812-B of 2007, decided on 25th April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 334 & 337-F(i)(iii), (v)---Bail, refusal of---Accused was attributed fire-arm injury which hit the left hand of the complainant---Plea of complainant that trial could not be concluded because of the conduct of accused was supported by the order sheet---Complainant had stated that his hand was fractured with the fire of accused---Record had clearly shown that trial was in progress and if there was delay in the conclusion, accused were also responsible for that---Bail application was dismissed, in circumstances.

Sahibzada Anwar Hameed along with Muhammad Bilal Kambo for Petitioner.

Naseem Ullah Khan Niazi for the Complainant.

Ch. Amjad Hussain, D.P.G. for the State.

Ata Muhammad, A.S.-I.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1342 #

2008 P Cr. L J 1342

[Lahore]

Before Hasnat Ahmad Khan and M.A. Shahid Siddiqui, JJ

AISH BAHADUR---Petitioner

Versus

THE STATE---Respondents

Criminal Miscellaneous No.1 of 2006 in Criminal Appeal No.30 of 2006, decided on 11th November, 2006.

Criminal Procedure Code (V of 1898)---

----S. 426---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Suspension of sentence---Accused was not apprehended at the spot---Brother of accused, who was also tried along with accused in the case, was acquitted by the Trial Court---Evidence against accused also required reconsideration---Sentence of accused was suspended and he was released on bail.

Altaf Ibrahim Qureshi for Petitioner.

Masood Sabir for the State.

2008 P Cr. L J 1355

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Khurshid Anwar Bhinder, JJ

MUHAMMAD IQBAL alias BALI---Petitioner

Versus

THE STATE and another---Respondents

Writ Petition No.3906 of 2008, decided on 14th May, 2008.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S.365---West Pakistan Arms Ordinance (XX of 1965), S.13---Suspension of sentence---Maximum period of sentence to be undergone by accused was five years' R.I., whereas accused had already undergone more than half of that sentence and the hearing of the main appeal was not within sight---Sentence of accused was suspended, in circumstances and he was admitted to bail.

Rana Muhammad Arif for Petitioner.

Sarfraz Ali Khan, A.A.-G.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1358 #

2008 P Cr. L J 1358

[Lahore]

Before Fazal-e-Miran Chauhan, J

MUHAMMAD ZUBAIR MALIK----Petitioner

Versus

S.H.O. and 5 others----Respondents

Writ Petition No.4695 of 2007, decided on 20th June, 2007.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B & 155---Constitution of Pakistan (1973), Art.199---Constitutional petition---Registration of criminal case---Petitioner had impugned order passed by the Justice of Peace whereby application filed by the petitioner under Ss.22-A & 22-B, Cr.P.C. for registration of criminal case was dismissed simply on the ground that offence in question was non-cognizable---Justice of Peace had failed to apply his judicial mind to the legal proposition---Though no order for registration of case could be passed, but Justice of Peace should have directed S.H.O. concerned to receive application for registration of case, to enter same in the Roznamcha and thereafter under subsection (2) of S.155, C.P.C., apply to the Magistrate seeking permission to investigate the matter and proceed strictly in accordance with subsection (3) of S.155, Cr.P.C.---Impugned order was set aside, with direction to S.H.O. concerned to make entry in the Roznamcha Waqiati of the Police Station and to proceed strictly in accordance with law.

Azmat Ullah Chaudhry for Petitioner.

Rana Shakeel Ahmad Khan for Respondents.

Faisal Ali Qazi, A.A.-G. with Noor Muhammad S.-I.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1374 #

2008 P Cr. L J 1374

[Lahore]

Before Kazim Ali Malik, J

AMIR ALI----Petitioner

Versus

A.I.-G and others----Respondents

Writ Petition No.5283 of 2008, heard on 4th June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 22-A(6)---Police Order (22 of 2002), Art.18(6)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Investigation, change of---Justice of Peace---Duty---Justice of peace, instead of deciding application of petitioner for change of investigation himself, forwarded the same to local police---Validity---Request for change of investigation by petitioner should have been placed before Authorities in terms of Art.18(6) of Police Order, 2002 for its disposal on its merits and in accordance with law--There was no justification with Justice of Peace, to forward request for change of investigation to local police in utter disregard of statutory provisions of Police Order, 2002, governing subject of change of investigation---Inaction on the part of police authorities escaped notice of Justice of Peace; it was permissible for Justice of Peace to activate process of change of investigation in terms of Art.18(6) of Police Order, 2002, particularly when written complaint before concerned quarters had not been disposed of on its merit---Order passed by Justice of Peace was not sustainable and the same was set aside---High Court remanded the matter to Justice of Peace for deciding it afresh in accordance with law---Petition was allowed accordingly.

PLD 2005 Lah. 470 ref.

Zafar Iqbal Chohan for Petitioner.

Ch. Shahbaz Ahmad Dhillon, A.A.-G. on Court's call.

Date of hearing: 4th June, 2008.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1392 #

2008 P Cr. L J 1392

[Lahore]

Before Muhammad Ahsan Bhoon, J

Mst. GULNAZ BIBI----Petitioner

Versus

MAQSOOD and 7 others----Respondents

Writ Petition No.2719 of 2008, heard on 6th June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 145---Constitution of Pakistan (1973), Art.199---Constitutional petition---Proceedings under S.145, Cr.P.C. quashment of---Dispute between respondent-vendee of disputed premises and petitioner in possession thereof---Petitioner's plea was that her father-in-law was gifted disputed premises by its original owner; and that her suit was pending in civil court---Validity---Petitioner's father-in-law was still alive, who had not challenged such proceedings, thus, petitioner could not claim to be aggrieved person within meaning of Art.199 of the Constitution---Petitioner's father-in-law had executed an agreement by stating that disputed premises had been sold to respondent by legal heirs of original owner, who had instructed him to hand over its possession to the respondent---Such agreement was signed by son of petitioner's father-in-law and "Dever" of petitioner---No injunctive order had been passed in favour of petitioner in her suit---Petitioner could not be given bonus to occupy premises on basis of a civil suit, when neither she was its owner nor she was gifted same by its owner---High Court dismissed constitutional petition in circumstances.

PLD 2006 SC 117 rel.

1995 PCr.LJ 1912 and 1996 PCr.LJ 444 distinguished.

Zahid Hussain Khan for Petitioner.

Malik Rab Nawaz for Respondents Nos.1 to 6.

Date of hearing: 6th June, 2008.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1407 #

2008 P Cr. L J 1407

[Lahore]

Before Tariq Shamim and Muhammad Ahsan Bhoon, JJ

ALLAH DITTA---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.1162 and 1462 of 2002 and Murder Reference No.559 of 2002, heard on 22nd May, 2008.

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

----S.302---Appreciation of evidence---Natural witness---All eye-witnesses were natural witnesses being residents of the same place where occurrence had taken place and they had no animus to falsely implicate the accused---Effect---Such witnesses can be relied upon in circumstances.

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

----S.302---Motive---Scope---Motive is always state of mind of accused which cannot be proved through ocular account and it is always a guess of prosecution---Insufficiency or weakness of motive would not be a ground to discard other reliable evidence.

----Ss.302(b) & 324---Appreciation of evidence---Natural witnesses---Ocular account supported by medical evidence---Trial Court convicted both the accused and sentenced one to imprisonment for life and other accused to death penalty---Validity---All three eye-witnesses were inmates of the house where occurrence took place and they gave the most credible and trustworthy ocular account of occurrence of murder of deceased and caused injury to prosecution witness---No discrepancies were found in the statements of witnesses regarding seat of injuries, kind of weapon of offence used in occurrence, date and time of occurrence---Further corroboration was furnished through medical evidence that accused were the assailants/culprits who entered the house of deceased with their common object and common intention and committed occurrence, murdered one person and injured his real brother who suffered injury on the most vital part of his body---Complainant and other eye-witnesses had no motive against accused to falsely implicate them in the occurrence---Mere disbelieving of recovery could not take away probative force of ocular account furnished by the most truthful and trustworthy witnesses---High Court declined to interfere with the conviction and sentence awarded to the accused persons---Appeal was dismissed in circumstances.

Kamran Masood Mirza for Appellant (in Criminal Appeal No.1162 of 2002).

Salman Safdar for Appellant (in Criminal Appeal No.1462 of 2002).

Syed Faisal Raza Bokhari, D.P.G. for the Sate.

Malik Abdul Waheed for the Complainant.

Date of hearing: 22nd May, 2008.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1428 #

2008 P Cr. L J 1428

[Lahore]

Before Muhammad Ahsan Bhoon, J

MUHAMMAD SHEHBAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.250-J of 2004, heard on 23rd May, 2008.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Benefit of doubt---Last seen evidence---Prosecution witnesses, who had last seen the deceased did nothing despite lapse of four days in search of deceased---Prosecution witness though had made reference of one person who informed him through telephone about dead body of deceased but even that person was also not produced by prosecution---During investigation neither any weapon of offence nor last worn clothes of deceased nor allegedly donkey cart was recovered---Accused was convicted and sentenced to imprisonment for life by the Trial Court---Validity---No motive of occurrence was available, dead body was of an unknown person; place of occurrence was not pointed out by accused; no extra-judicial or judicial confession was obtained and there was no recovery---Only evidence of last seen was available which was demolished by medical evidence, thus it was a case of no evidence---Prosecution failed to establish its case against accused beyond any shadow of doubt---Conviction and sentence awarded to accused were set aside and he was acquitted of the charge---Appeal was allowed in circumstances.

Qaisar Tasleem for Appellant.

Asif Mahmood Cheema, D.P.G. for Respondent.

Date of hearing: 23rd May, 2008.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1444 #

2008 P Cr. L J 1444

[Lahore]

Before Khurshid Anwar Bhinder, J

JAFAR HUSSAIN alias JOJO---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4047-B of 2008, decided on 11th June, 2008.

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

----S. 497---Penal Code (XLV of 1860), S.392---Bail, grant of---Accused was neither nominated, in the F.I.R. nor he was implicated in the supplementary statement by the complainant---No identification parade was held for identification of accused---Mere recovery of amount did not necessarily implicate the accused in the commission of the offence, as it was not established that the recovered amount was in fact the looted amount and such type of recovery had no significance---Case registered against the accused, prima facie, appeared to be a false and fabricated one and, therefore, no reliance could be placed on police witnesses who had effected the recovery in clear violation of S.103, Cr.P.C.---Confession of accused before the police regarding commission of other such-like offences was of no significance and he could not be sent behind the bars unless and until his guilt was proved in a Court of law--Pendency of criminal cases against the accused in the Court alone would not entitle him to be called a history-sheeter or a record holder---Case of accused required further inquiry into his guilt and he was admitted to bail in circumstances.

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

----S. 497---Penal Code (XLV of 1860), S.392---Bail---Involvement of accused in other similar cases---Effect---No accused person can be called a history sheeter or a previous record holder until and unless offence is proved against him and he is convicted in that particular offence---Mere pendency of criminal cases in a Court of law does not entitle the accused to be called a history-sheeter or a record holder.

Basharat Ali for Petitioner.

Shafqat Ullah Butt, D.P.-G. for the State with Sana Ullah, S.-I.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1451 #

2008 P Cr. L J 1451

[Lahore]

Before Khurshid Anwar Bhinder, J

ALLAH YAR----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1842/B of 2008, decided on 16th June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.365-B---Pre-arrest bail, refusal of---Accused had allegedly abducted the woman and subsequently committed Zina with her---Defence of the accused was that the alleged abductee had contracted marriage with him with her free-will and consent---Abductee was already a married woman' and, prima facie, nothing was available on record to establish that she had ever been divorced by the husband---No such record was even available in the Union Council concerned---Earlier marriage of the abductee still subsisted and there was no evidence to prove that divorce between the spouse' had been effected---Nikah over Nikah by the married woman was not valid in Islam---Pre-arrest bail was declined to accused in circumstances.

Rana Muhammad Sajjad Afzal for Petitioner.

Shafqatullah Butt, D.P.-G. for the State with Allah Ditta S.-I.

Ch. Anwaar-ul-Haq Pannu for the Complainant.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1455 #

2008 P Cr. L J 1455

[Lahore]

Before Hafiz Tariq Nasim, J

Messrs STAR AGRO ALLIED MACHINERY INDUSTRIES (PVT.) LTD. through Chief Executive ---Appellant

Versus

CHAIRMAN COMMERCIAL COURT, PUNJAB AND N.-W.F.P and 2 others---Respondents

Appeal No.1/C of 2007, decided on 20th May, 2008.

Criminal Procedure Code (V of 1898)---

----S. 249-A-Import and Export (Control) Act (XXXIX of 1950), Ss.5A(7), (8). & 5(B)---Commercial Court proceedings---Procedure---Order of acquittal in the absence of Prosecutor---Legality---On the information by the appellant that the respondent had illegally retained export proceeds amounting to US$ 7,783,150., the Trade Development Authority of Pakistan filed a complaint against the respondent before the Commercial Court, for violation of the Import and Export Control Act, 1950---Respondent was acquitted by the Commercial Court under S.249-A, Cr.P.C.---Appeal against acquittal---Pleas of the appellant were that as the Prosecutor was yet to be appointed for prosecuting the case before the Commercial Court, and secondly, as there was no application filed by the respondent for acquittal under S.249-A, Cr.P.C., therefore, the order of acquittal could not have been passed---Validity---Where S.5A(7) of the Import and Export (Control) Act, 1950, and S.249-A, Cr.P.C. being the laws relevant to the proceedings before the Commercial Court, provided that without the presence/appointment of the Prosecutor, case could not 'be proceeded by the Commercial Court, and where there was also an allegation that an application under S.249-A, Cr.P.C. was not filed, the matter could only be resolved by recording evidence of the parties and that too after granting an opportunity to advance the case of the appellant---Commercial Court had passed the order of acquittal under S.249-A, Cr.P.C., in haste without adverting to the provisions of the law---Appeal was allowed and the case was remanded to the Commercial Court for decision on merits after recording evidence.

Majid Ali Wajid and Hammad Khalid Butt for Appellant.

Muhammad Irfan Malik and Tahir Farooq for Respondent No.2.

Arshad Mehmood for Respondent No.3 with Muhammad Usman Ashraf, Assistant Director Legal.

Syed Iftikhar Hussain Shah, Deputy Attorney-General.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1460 #

2008 P Cr. L J 1460

[Lahore]

Before Khurshid Anwar Bhinder, J

MUZAMMAL JAVED----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.2132/B of 2008, decided on 2nd June, 2008.

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

----S. 498---Penal Code (XLV of 1860), Ss.406/420/506---Pre-arrest bail, grant of---Accused, according to record, had executed an agreement to sell his shop for a consideration of Rs.52 Lac, on the basis of which complainant had filed a suit in Civil Court which was still pending---Fate of the said agreement to sell would be determined by Civil Court in accordance with law after recording evidence of the parties---Registration of the criminal case against the accused appeared to have been filed .with mala fide intention by converting civil dispute into criminal offence---Non-compliance of agreement to sell did not constitute any offence---Dispute between the parties was of civil nature for the sale and purchase of the shop and sending the accused to jail would not strengthen the prosecution case any more, as nothing was to be recovered from him---F.I.R. had been lodged after a delay of one year anti four months which was very significant and possibility of false implication of accused could not be ruled out---Interim pre-arrest bail already granted to accused was confirmed in circumstances.

Mirza Muhammad Ramzan v. The State 2007 YLR 1380 and Akram Ali v. The State 2008 PCr.LJ 148 ref.

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

----Ss. 406/420/506---Agreement to sell, non-compliance of---Noncompliance of agreement to sell does not constitute any offence.

Imtiaz Shahid for Petitioner.

Shafqatullah Butt, D.P.-G. for the State with Azmatullah, S.-I.

Shahid Mehmood Matti for the Complainant.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1468 #

2008 P Cr. L J 1468

[Lahore]

Before Muhammad Ahsan Bhoon and M.A. Zafar, JJ

SIKANDAR----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.971, Murder Reference No.543 and Criminal Revision No.646 of 2002, heard on 26th May, 2008.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---All the three eye-witnesses were not only inimical and interested witnesses, but were also chance witnesses and none of them was able to justify his presence at the scene of occurrence---Eye-witnesses had not seen the incident---Occurrence had taken place in a deserted place at Katcha path near railway line---Medical evidence had negated the ocular testimony---No crime empty having been collected by the Investigating Officer from the spot, recovery of Rifle from the accused which was not sent to Forensic Science Laboratory was of no consequence---Complainant party had the motive for false implication of accused---Benefit of doubt was extended to accused in circumstances and he was acquitted accordingly.

S.D. Qureshi for Appellant.

Faisal Raza Bokhari, D.P.-G. assisted by M. Asghar Rokhari for the Complainant.

Date of hearing: 26th May, 2008.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1478 #

2008 P Cr. L J 1478

[Lahore]

Before Tariq Shamim and Muhammad Ahsan Bhoon, JJ

IFTIKHAR AHMAD alias PAPPU----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.1609 of 2002 and Murder Reference No.36 of 2003, heard on 19th May, 2008.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 302(c)---Appreciation of evidence---Sentence, reduction in---Deceased was not found to be married with the mother of accused---Defence plea taken by accused was that on having found his mother and the deceased in compromising position on the top of roof of his house, he gave "Chhuri" blows to both of them under grave and sudden provocation which was borne out by medical evidence---Prosecution story given by the interested and chance witness did not inspire confidence and was disbelieved and the story put forward by defence appeared to be more plausible---Motive behind the occurrence alleged by the prosecution was also discarded---Medical evidence had corroborated the version given by accused in material particulars leading to the conclusion that accused had inflicted injuries on the person of the deceased and his mother in heat of passion on seeing them in compromising position---Conviction of accused was consequently altered from section 302(b), P.P.C. to section 302(c), P.P.C. and his death sentence was reduced to ten years' R.I. in circumstances.

Rana Munir Ahmad Khan for Appellant.

Syed Faisal Raza Bokhari, D.P.-G. for the State.

Ch. Riasat Ali for the Complainant.

Date of hearing: 19th May, 2008.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1488 #

2008 P Cr. L J 1488

[Lahore]

Before Khurshid Anwar Bhinder, J

MUHAMMAD YAQOOB----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.4205/B of 2008, decided on 27th May, 2008.

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

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4---Bail, grant of---No watteck money was recovered from the accused---It seemed highly unlikely and unreliable that the accused while carrying 25 bottles of liquor in a bag would sell them in open Bazar, when every one knew that selling of liquor was a heinous offence---Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 therefore was not made out against the accused---Transport of liquor from one place to another by the accused was also not established, as allegedly he was moving around in the Bazar---Article 4 of the said Order, thus, was not even attracted in the case, which even otherwise was a bailable offence---Liquor having been allegedly sold by accused in main Bazar, Police could have easily associated public witnesses with recovery proceedings where thousands of people were available, but it was not done---Involvement of accused in similar other cases prior to the occurrence was of no help to prosecution, unless and until he was held guilty in such cases---Cases against accused needed further inquiry in circumstances and he was admitted to bail accordingly.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Abid Ali v. The State 2007 PCr.LJ 611 and Ghulam Abbas v. The State 1997 MLD 1743 ref.

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

----S.497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4--- Bail--- Evidence--- Police witnesses--- Credibility--- Police witnesses in narcotic sale cases are as good witnesses as anybody else.

----S. 497---Prohibition (Enforcement of Hold) Order, (4 of 1979), Arts.3/4---Bail---Past criminal history of accused---Effect---Previous involvement of accused in similar other cases is of no avail to prosecution, unless and until he has been adjudged guilty in such cases.

Ghulam Abbas v. The State 1997 MLD 1743 ref.

Ijaz Ahmed Janjua for Petitioner.

Shafqat Ullah Butt, D.P.-G. with Ghulam Rasool A.S.-I. for the State.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1492 #

2008 P Cr. L J 1492

[Lahore]

Before Tariq Shamim and Muhammad Ahsan Bhoon, JJ

KASHIF NADEEM alias STYLO through Special Attorney----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.1197 of 2002 and Murder Reference No.478 of 2003, heard on 12th May, 2008.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Occurrence having taken place in broad-daylight false implication of accused was not possible---Complainant and other witnesses had no plausible reason to let off the real culprit in order to falsely involve the accused in the crime---Delay in lodging the F.I.R. had been adequately explained by the complainant, which obviously was on account of providing prompt medical care to the deceased while in injured condition on the advice of the Doctor and the same was of no consequence in the given circumstances---Eye-witnesses were natural and their presence at the place of occurrence at the relevant time was well explained, who had furnished graphical details of the events leading to the murder of the deceased---Ocular testimony was consistent on all material particulars of the case leading to the conclusion that murder of the deceased had been committed in the presence of the eye-witnesses---Motive behind the occurrence had been proved by consistent and credible evidence---Dying declaration of the deceased made in injured condition under apprehension of impending death did not suffer from any illegality or infirmity which had provided details of the occurrence as well as the motive for the same---"Chhuri" recovered at the behest of accused from his residential house through reliable evidence was found to be stained with human blood---Ocular account of occurrence had received further corroboration from medical evidence---Conviction and sentence of death of accused were upheld in circumstances.

Syed Zahid Hussain Bokhari for Appellant.

Rai Muhammad Zafar Bhatti and Syed Faisal Raza Bokhari, D.P.-G. for the State.

Date of hearing: 12th May, 2008.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1505 #

2008 P Cr. L J 1505

[Lahore]

Before Zafar Iqbal Chaudhry, J

NAZAR HUSSAIN----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.648/B of 2008/BWP, decided on 2nd July, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/34/109---Bail, grant of---Further inquiry---Accused was not named in F.I.R. but was subsequently involved along with his co-accused through supplementary statement---Supplementary statement of the complainant and the witnesses, showed that accused and his co-accused confessed their guilt before prosecution witnesses---Statement of said witnesses had revealed that all accused confessed their guilt jointly before the said prosecution witnesses, which was not admissible in evidence---Remaining evidence which was last seen and recovery of pistol, prima facie, was not sufficient to establish any offence against accused---Case of accused fell within the purview of further inquiry---Accused was admitted to bail, in circumstances.

Malik Muhammad Aslam for Petitioner.

Muhammad Ashraf Mohandra, D.P.-G. for the State along with Salamat Ali, S.-I. with record.

Complainant in person.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1510 #

2008 P Cr. L J 1510

[Lahore]

Before M. Bilal Khan, J

Syed GHULAM HASSAN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.2630/B of 2007, decided on 25th April, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Customs Act (IV of 1969), Ss.156(1), (8), (14), 157, 178, 32(1) & 16---Bail, grant of---Further inquiry---Two samples from two different bottles of allegedly seized liquor out of 108 bottles were taken out and same were sent to the office of Chemical Examiner for analysis after more than four months of seizure---Counsel appearing for the Department had not been able to explain as to how the samples had been obtained when the challan had been submitted before the Trial Court---Case property belonged to the court and could be interfered with only with the permission of the court---Nothing was on record to show that any permission was either sought or granted by the court for obtaining samples out of the case property---Such belated exercise on the part of the Department cast some shadow of doubt on the prosecution story, the benefit whereof had to be extended to accused even at bail stage---Was yet to be determined during the trial whether the commodity recovered from accused fell within the definition of smuggled items; and whether the provisions of S.156(1),(8) of Customs Act, 1969 were attracted---Case, in circumstances, fell within the purview of further inquiry entitling accused to concession of bail---Accused was admitted to bail, in circumstances.

Abdul Latif Chaudhry for Petitioner.

Muhammad Khalid Chaudhry for Customs Department.

Pervaiz Khan Shahid, Inspector, Customs, Police Station I&P Cell, Collectorate of Customs House, Lahore with record.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1518 #

2008 P Cr. L J 1518

[Lahore]

Before Muhammad Ahsan Bhoon, J

YASEEN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.4459/B of 2008, decided on 30th June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.395/412---Bail, refusal of---Positive allegation was levelled in the F.I.R. that 25/30 persons entered the house of the complainant and on gunpoint whole family was detained and thereafter they looted the valuable belongings including cash amount, out of which certain items were recovered from accused vide recovery memo during course of investigation---Effect---Eleven different persons were interrogated in the case---Accused was nominated in the supplementary statement by the complainant and other prosecution witnesses---Accused was record holder and prima facie he was involved in heinous crime which fell within the prohibitory clause of S.497(1), Cr.P.C.---Bail petition having no merit, was dismissed.

Ch. Imran Raza Chadhar for Petitioner.

Ch. Muhammad Zafar Khan, D.P.-G. for the State along with Zafar Ullah Khan, S.-I. with record.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1521 #

2008 P Cr. L J 1521

[Lahore]

Before Khurshid Anwar Bhinder, J

MUZAMIL and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.4669/B of 2008, decided on 16th June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.377/367-A---Pre-arrest bail, refusal of---Accused had been nominated in the F.I.R. with specific role---Victim in his statement had directly implicated both the accused with the commission of the offence---Two eye-witnesses of the occurrence had corroborated the victim and they had also fully involved the accused in the commission of the offence---Record did not show any enmity between the parties---Complainant as well as the victim had absolutely no reason whatsoever for false implication of both the accused---Anal swabs of the victim taken for detection of semen after three days of the occurrence and the report of Chemical Examiner thereon, was insignificant and inconsequential, as per medical jurisprudence semen could not remain in anus for more than 24 hours due to passing of stools by the victim---According to medical report tenderness around the anus of the victim was present, which was sufficient evidence to prove the guilt of accused---Co-accused having aided the commission of the offence was equally liable for the crime---Ad interim pre-arrest bail already granted to accused was not confirmed in circumstances and the petition was dismissed accordingly.

2007 MLD 428 ref.

Muhammad Zaheer Butt for Petitioners.

Javaid Anwar Janjua for the Complainant.

Shafqat Ullah Butt, D.P.-G. with Muhammad Munir, A.S.-I. for the State.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1527 #

2008 P Cr. L J 1527

[Lahore]

Before Sh. Hakim Ali, J

M URTAZA----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.681/B of 2006/BWP, decided on 5th October, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.392, 395, 411 & 412---Bail, grant of---Four cases were registered after the case of present occurrence, while accused was arrested upon the supplementary statement recorded later on after about one month from registration of the F.I.R. and accused was arrested---No material progress had been made in the case despite direction of the High Court---Accused, in circumstances was entitled for grant of bail---Accused was admitted to bail, in circumstances.

Malik Imtiaz Mahmood for Petitioner.

Muhammad Asif Mahmood Pirzada for the State.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1532 #

2008 P Cr. L J 1532

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Sh. Javed Sarfraz, JJ

ZAHID HUSSAIN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No1392 along with C.S. Ref. No.41-T of 2006, heard on 14th February, 2007.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Presence of sole eye-witness on the spot at the relevant time was found doubtful---Said witness was the resident of another Mohallah and had not given any explanation about his presence on the spot at the relevant time of occurrence during early hours of the day---Said witness being also closely related to the complainant, Trial Court had rightly disbelieved him---Prosecution witness and his son stated that they had seen the occurrence and within their view accused had set deceased on fire after pouring kerosene oil on her, but strangely they never bothered to interfere or made any attempt to save deceased, but left the place in order to inform the complainant and other witnesses---Possibility that said eye-witnesses were introduced later on in order to strengthen the prosecution case, could not be ruled out---Trial Court on valid and sound grounds had already disbelieved recovery evidence-Accused allegedly had confessed his guilt before prosecution witness on the day of occurrence, but said witness, who was closely related to the complainant, never bothered to inform either the complainant or the police immediately after said confession, but made statement before the police on the next day---Said witness after hearing confession never attempted to apprehend accused---Such unnatural conduct of the witness, was sufficient to doubt his credibility---Even otherwise, evidence of extra-judicial confession was a very weak type of evidence which normally was created when prosecution failed to collect any tangible evidence to prove the charge and that such type of evidence should not be relied upon in the absence of any corroborative piece of evidence---Prosecution had to stand on its own legs in order to prove the charge against accused, but in the present case prosecution had failed to perform its duty---Evidence relied upon by the prosecution to prove the charge against accused, was full of doubts entitling accused to get the benefit of the same---Conviction and sentence awarded to accused by the Trial Court, were set aside and accused was acquitted from the charge and was released forthwith.

Hafiz Khan Muhammad Mohl for Appellant.

Sardar Mashkoor Ahmad, Spl. P. P. for the State.

Date of hearing: 14th February, 2007.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1542 #

2008 P Cr. L J 1542

[Lahore]

Before Muhammad Akram Qureshi, J

ATTA MUHAMMAD----Petitioner

Versus

MUHAMMAD UMER FAROOQ and another----Respondents

Criminal Revision No.149 of 2008, decided on 21st April, 2008.

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

----S. 7---Determination of age---Petitioner/complainant had assailed the order passed by the Trial Court directing Medical Superintendent D.H.Q. Hospital to constitute a Medical Board for the determination of the age of accused---Controversy being between the parties regarding the date of birth of accused mentioned in the birth certificate and National Identity Card, the Trial Court should have summoned the record of both the said documents and examined the relevant officials in the presence of the parties---Medical examination of accused was expedient for the ends of justice---Even otherwise S.7 of the Juvenile Justice System Ordinance, 2000 required that the person claiming childhood was required to be medically examined by the Medical Board---No illegality, in circumstances, had been committed by the Trial Court while passing the impugned order which was perfectly legal, correct and proper---Medical Board would help the court in determining the age of accused.

Babar Ali v. The State and 2 others PLD 2007 Lah. 650; Muhammad Ajmal v. The State through Advocate-General, Punjab PLD 2003 SC 1 and Sultan Ahmed v. Additional Sessions Judge-I, Mianwali and 2 others PLD 2004 SC 758 ref.

Zafar Iqbal Chohan for Petitioner.

Rehan Faheem Mahl for Respondent No.1.

Mrs. Farzana Shehzad Khan, D.P.-G. for the State.

Date of hearing: 21st April, 2008.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1549 #

2008 P Cr. L J 1549

[Lahore]

Before Saif-ur-Rehman and S. Ali Hassan Rizvi, JJ

NISAR AHMAD FAROOQI----Petitioner

Versus

MUHAMMAD JAMSHED WAQAS and 2 others----Respondents

Criminal Miscellaneous No.36/CB of 2008, decided on 13th May, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.406/408/457/380/411--Cancellation of bail, refusal of---Accused had remained confined in jail for a period of more than one year without any trial---If the challan had been, submitted in the wrong forum, the accused could not be made to suffer and the benefit, if any, arising out of this lapse was to be allowed to accused---Trial Court had exercised the discretion for the said lapse in favour of accused quite in accordance with the established principles of law---No direct evidence was available on record to hold that the total bags as alleged by the complainant in the F.I.R. were present at the spot when the loan was obtained or the same were missing after the occurrence as per the record---Confessional statement of the accused was addressed to Chief Manager of the Bank concerned who was a man in authority and provisions of Article 37 of Qanun-e-Shahadat, 1984, might take away the total force of this confession being irrelevant---Main evidence against accused was the aforesaid confessional statement of co- accused, the value of which would be determined at the time of trial---Case against accused, thus, was one of further inquiry---Petition for cancellation of bail was dismissed in circumstances.

2003 YLR 1573; 2003 SCMR 1966; 2008 YLR 328 and 2007 YLR 286 ref.

Muhammad Irfan Wyne for Petitioner.

Mian Bashir Ahmad Bhatti, D.P.-G. for the State.

Sardar Riaz Karim for Respondent No.1.

Muhammad Asghar Bhutta for Respondent No.2.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1555 #

2008 P Cr. L J 1555

[Lahore]

Before Fazal-e-Miran Chauhan, J

MUHAMMAD IMRAN and others----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.4135-B of 2008, decided on 17th June, 2008.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/148/149---Bail, refusal of---Accused were nominated in the F.I.R. with specific role and during investigation they were found guilty---No rule of law existed to the effect that a person who did not cause injuries to the deceased could not be burdened with constructive liability at the time of considering the question of bail, which had to be determined on the basis of the facts available on record---If on the allegation appearing on the record the conditions set out in the provisions of law spelling out constructive liability were made out, then it could not be said that the accused were not guilty of an offence punishable with death or imprisonment for life---Question of vicarious liability for murder could be considered even at bail stage in the light of the material on record and the accused found to be vicariously liable would be disentitled to bail, when there was no reason as to why they should be falsely implicated---Sufficient material was available on record to connect the accused with the commission of the offence---Bail was refused to accused in circumstances.

Munawar v. The State 1981 SCMR 1092 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/148/149---Bail---Vicarious liability, consideration of---Question of vicarious liability for murder can be considered even at bail stage in the light of material on record---Accused found to be vicariously liable would be disentitled to bail in the absence of any reason showing his false implication.

Munawar v. The State 1981 SCMR 1092 ref.

Shoaib Zafar for Petitioner.

Hamood-ur-Rehman for the Complainant.

Rana Iqbal Hussain, Dy. P.-G. with Ghulam Shabbir A.S.-I. Police Station Khushab for the State.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1559 #

2008 P Cr. L J 1559

[Lahore]

Before Malik Saeed Ejaz, J

MUHAMMAD HUSSAIN----Petitioner

Versus

S.H.O. POLICE STATION KALAR KAHAR DISTRICT CHAKWAL and 8 others----Respondents

Criminal Miscellaneous No.91/H of 2008, decided on 26th May, 2008.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Direction was issued to the S.H.O. for recovery of the alleged detenue, daughter of petitioner, but her recovery could not be effected at the given address and as such no roaming search could be made, particularly when it had come on record that she had contracted marriage with the respondent of her own free will---Petitioner was at liberty to get the case registered against the respondent for abduction of his 'daughter, if he felt that she had been abducted and she had not contracted marriage with the respondent with her free will---Petition was dismissed with the above observation.

Muhammad Bilal Butt for Petitioner.

Malik Muhammad Safdar for Respondent No.3.

Nadir Manzoor Doggal, D.P.-G. with Iftikhar, A.S.-I.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1563 #

2008 P Cr. L J 1563

[Lahore]

Before Malik Saeed Ejaz, J

RAHIM BAKHSH----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.2717/B of 2007, decided on 16th April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-A(ii)/337-A(vi)/34---Bail, grant of---Accused had allegedly given a blow with a brick on the forehead of the brother of the complainant and he did not repeat the same---Injured witness in his statement recorded under S.161, Cr.P.C. had stated that the accused had caused injury to him on his chest, but medical evidence did not support his statement, which was in direct conflict with the allegation levelled in the F.I.R.---Accused was in jail for the last nine months and trial had not yet commenced---Nobody could be kept behind the bars for indefinite period---Nature of injury as declared by the Doctor had also created doubt, as the injured witness had remained admitted in the hospital only for four days after receiving such serious injury---Accused was admitted to bail in circumstances.

Ms. Saeeda Asif for Petitioner.

Muhammad Bilal Butt for the Complainant.

Nadir Manzoor Duggal, D.P.-G. with Imdad Hussain Bukhari, S.-I. for the State.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1565 #

2008 P Cr. L J 1565

[Lahore]

Before Hasnat Ahmad Khan, J

AURANGZEB----Petitioner

Versus

SHAKEEL AIIMAD and another----Respondents

Criminal Miscellaneous No.9445/CB of 2007, decided on 6th June, 2008.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/337-A(i)/337-F(ii)/337-H(2)/148/149---Cancellation of bail, refusal of---Accused had neither misused the concession of bail nor hurled any threats on the complainant---Trial had already commenced and six prosecution witnesses had been examined---Any finding by High Court for or against the impugned order was likely to prejudice the case of either of the parties, which was not advisable at such stage---Allegation of firing by co-accused was found false during investigation---For cancellation of bail strong and exceptional grounds were required and it had to be seen as to whether bail granting order was patently illegal, erroneous, factually incorrect and had resulted in miscarriage of justice, and such finding could not be given in the peculiar circumstances of the case---Court should be reluctant to cancel the bail, especially after the commencement of the trial---Petition for cancellation of bail was dismissed in circumstances.

Ehsan Akbar v. The State and 2 others 2007 SCMR 482; Sardar Munir Ahmed Dogar v. The State PLD 2004 SC 822 and Nazir Ahmad v. Ali Gull and others 2004 SCMR 1160 distinguished.

Muhammad Ismail v. Muhammad Rafique PLD 1989 SC 585; State v. Rashid Ahmed and another 1988 SCMR 1129 and Amir Khan v. Mst. Gohran and another 1985 SCMR 1847 rel.

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

----S. 497(5)---Cancellation of bail---Principles---Principles for grant of bail and those for cancellation of bail are quite different---For cancellation of bail strong and exceptional grounds are required and it has to be seen as to whether bail granting order is patently illegal, erroneous, factually incorrect and has resulted in any miscarriage of justice.

Ehsan Akbar v. The State and 2 others 2007 SCMR 482; Sardar Munir Ahmed Dogar v. The State PLD 2004 SC 822 and Nazir Ahmad v. Ali Gull and others 2004 SCMR 1160 ref.

----S. 497(5)-Cancellation of bail after start of trial---Principle---Court should be reluctant to cancel the bail after the commencement of the trial.

Muhammad Ismail v. Muhammad Rafique PLD 1989 SC 585; State v. Rashid Ahmed and another 1988 SCMR 1129 and Amir Khan v. Mst. Gohran and another 1985 SCMR 1847 ref.

Sardar Balakh Sher Khosa for Petitioner.

Shahid Mehmood Khan, Dy. P.-G. with Nawaz, 5.-I. for the State.

Raja Muhammad Arif for Respondent No.1.

Dr. Tahir Naseer in Person.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1573 #

2008 P Cr. L J 1573

[Lahore]

Before Khurshid Anwar Bhinder, J

LIAQAT ALI alias LAKKI----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.4695/B of 2008, decided on 10th July, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3, 4 & 22---Bail, grant of---Further inquiry---Accused though was nominated in F.I.R. with specific role of fermenting Desi liquor at his Haveli, but the police, while raiding the Haveli of accused, did not take into account for the legal formalities which was a mandatory provision of law to be fulfilled before conducting raid---Police though had recovered all such articles which were necessary for fermenting process of liquor, but did not recover the material which was necessary to be used in the fermentation process of liquor---Mere recovering of articles used in the preparation of liquor was not sufficient to involve accused with the commission of said offence---Haveli where ,accused allegedly was fermenting liquor being situated in the heart of the village and people were also residing there, it was necessary for the raiding party to seek search warrant before conducting the raid, from the Magistrate or the Prohibition Officer as pre-requisited by Article 22 of Prohibition (Enforcement of Hadd) Order, 1979 and S.105, Cr.P.C., but that had not been done in the case---Explanation 'given by the police for non-compliance of said mandatory provision of law, was not warranted by law---Haveli of accused was in a residential area where inmates were putting up and was considered to be a place of residence, but the police had conducted illegal raid at the place of occurrence without adopting legal formalities---Sanctity and maintenance of the privacy of the house had been very well acclaimed by Islam and had attached much importance to the sanctity of the house---Raiding party had also violated the provisions of S.103, Cr.P.C. for not associating independent witnesses of the locality in the recovery process---Accused, though was involved in such like cases, but he was not convicted in those cases---No person could be called as habitual offender or history sheeter until and unless his guilt .stood proved against him---Accused, in circumstances, could not be declared as habitual offender or history sheeter---False implication of accused, could not be ruled out as the police had simply recovered fermentation articles and not the material, although they could have easily done so---Case of accused being of further inquiry into the guilt of accused, he was admitted to bail, in circumstances.

Master Bilawal Ali Zardari v. K.D.A. and others PLD 1993 Kar. 67; Muhammad Mansha v. The State 1995 SCMR 1414; 1997 PCr.LJ 805 and Nasrullah Khan v. The State 2007 PCr.LJ 1052 rel.

Ch. Muhammad Younas for Petitioner.

Shafqat Ullah Butt, D.P.-G. with Ghulam Mustafa, A.S.-I.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1578 #

2008 P Cr. L J 1578

[Lahore]

Before Zubda-tul-Hussain, J

JAVED IQBAL----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.299/B of 2008, decided on 13th May, 2008.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/397/201/411/34---Bail, grant of---Occurrence was a blind murder, for which initially there was neither any allegation against a specific person, nor any evidence to support the nomination of an accused---Pointation of the place of occurrence as well as the collection of incriminating evidence was based on the joint description of the two accused--Alleged recoveries had been effected after more than two months of the occurrence and prosecution was heavily responsible to establish or to explain by cogent evidence, as to how one shoe of the deceased remained lying at the place of occurrence and how its recovery could be pointed out by the accused at the place---Same would be the position about other recoveries effected from the deserted house of occurrence---No doubt Courts were ordinarily refrained from deciding the bail applications on merits where trial of the case had already started and the matter was left to the discretion of the Trial Court in order to avoid the possibility of the case being prejudiced, but at the same time it also could not be denied that in a case where sufficient grounds were available for further inquiry into the guilt of an accused and he was otherwise entitled as of right to bail, the same could not be withheld merely on the ground that the trial of the case had since commenced---Sufficient grounds existed for further inquiry into the guilt of accused and he was entitled to bail within the meaning of S.497(2), Cr.P.C.---Bail was allowed to accused accordingly.

Muhammad Ismail v. Muhammad Rafiq PLD 1989 SC 585 rel.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/397/201/411/34 Bail after commencement of trial---Practice and procedure---No doubt Courts have ordinarily refrained from deciding bail applications on merits in cases whose trial has already started in order to avoid the possibility of the case being prejudiced, but at the same time it also cannot be denied that in a case where sufficient grounds exist for further inquiry into the guilt of an accused and he is otherwise entitled as of right to bail, the same cannot be withheld merely on the ground that the trial of the case has since commenced.

Muhammad Ismail v. Muhammad Rafiq PLD 1989, SC 585 ref.

Malik Rab Nawaz Noon for Petitioner.

Ch. Muhammad Tariq, A.P.-G. and Sheraz A.S.-I. for the State.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1581 #

2008 P Cr. L J 1581

[Lahore]

Before Kazim Ali Malik, J

ALLAH DITTA----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1725/B of 2008, decided on 1st July, 2008.

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

----S. 497---Penal Code (XLV of 1860), S.302---Bail, grant of---Statements of the two eye-witnesses introduced by the complainant at belated stage were not worthy of credence, because the complainant and his counsel had stated in clear terms before the High Court that the killing was an un-witnessed event and the said eye-witnesses had been introduced on the dishonest and wrong advice of the first Investigating Officer---Ignoring the said statements of the eye-witnesses, there was not an iota of evidence against the accused to connect him with the charge of murder and sodomy--High Court, thus, was left with no other option but to allow bail to the accused and he was admitted to bail accordingly---High Court, however was not supposed to leave the aggrieved persons at the mercy of the police---Investigation of a criminal case launched mala fide or dishonestly or for some consideration extraneous to the record, was open to correction by High Court under the inherent and constitutional jurisdiction---Investigation conducted by the first investigator was dishonest and mala fide and, therefore, High Court taking notice under the said jurisdiction directed the Inspector-General of Police to entrust the investigation of the case to a team of honest and upright Senior Police Officers and to initiate legal proceedings against the said first investigator, who had submitted the challan in hot haste without collecting evidence after having joined hands with the accused; in such circumstances it would be a futile exercise to proceed with the trial of accused---Proceedings, therefore, were stayed before the Sessions Court till completion of the investigation as directed above---Petition was disposed of with said directions.

Raja Rustam Ali Khan v. Muhammad Hanif and 6 others 1997 SCMR 2008 ref.

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

----Art. 199---Criminal Procedure Code (V of 1898), Ss.561-A & 156---Constitutional and inherent jurisdiction---Dishonest investigation, correction of---Investigation of a criminal case launched mala fide or dishonestly or for some consideration extraneous to the record is open to correction by High Court under the inherent and constitutional jurisdiction.

Raja Rustam Ali Khan v. Muhammad Hanif and 6 others 1997 SCMR 2008 ref.

Javaid Anwar Janjua for Petitioner.

Mrs. Azra Israr, D.P.-G. with Muhammad Hussain, S.-I. with record for the State.

Khyzer Abbas Khan for the Complainant.

Date of hearing: 23rd June, 2008.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1588 #

2008 P Cr. L J 1588

[Lahore]

Before Hasnat Ahmad Khan and Muhammad Ahsan Bhoon, JJ

MUHAMMAD AZAM alias PAPA----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.1955 of 2002 and Murder Reference No.886 of 2002, heard on 9th June, 2008.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 394---Appreciation of evidence---Although occurrence had taken place in the dark hours of the night and the accused was not named in the F.I.R., yet admittedly the incident had occurred in the house of the deceased as well as the complainant and other eyewitnesses---Presence of eye-witnesses at the time of occurrence in their house, therefore, was natural---Injury suffered by the accused at the hand of the deceased was found on his head which was duly mentioned in the promptly lodged F.I.R., which showed that the eye-witnesses had seen the occurrence---Eye-witnesses though closely related to deceased had no ill-will or enmity with the accused, nor they had any motive to falsely implicate him---Medical evidence was in line with ocular testimony---Eye-witnesses had duly identified the accused being a culprit of the crime during the identification parade---Although the crime-empties were found wedded with the pistol recovered at the behest of accused, the link of transmission to Forensic Science Laboratory was missing, yet the recovery of crime-empties of the pistol could be taken as supportive evidence qua the weapon of offence used at the time of occurrence, recovery of which had been proved by consistent evidence---Defence plea taken by accused regarding his implication in the case at the instance of an Ex.M.N.A., was not proved on record through evidence, so mere any suggestion of his false implication was of no help to him---Accused had committed brutal murder of a young lad of 21 years without any rhyme or reason and no mitigating circumstance was available in his favour---Convictions and sentences of accused were upheld in circumstances.

S.D. Qureshi Defence Counsel for Appellant.

Syed Faisal Raza Bokhari, D.P.-G. for the State.

Mian Shahid Iqbal for the Complainant.

Date of hearing; 9th June, 2008.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1598 #

2008 P Cr. L J 1598

[Lahore]

Before Tariq Shamim and Muhammad Ahsan Bhoon, JJ

RAJAB ALI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.159/J of 2002 and Murder Reference No.307 of 2003, heard on 17th June, 2008.

Penal Code (XLV of 1860)---

---Ss. 302(b), 380, 411 & 452---Appreciation of evidence---Site plan had negated the presence of eye-witnesses at the time of alleged occurrence---Eye-witnesses taking a complete somersault had absolutely changed their version from their earlier version of the F.I.R. and statements under S.161, Cr.P.C.---Occurrence, thus, was an unseen one and both the eye-witnesses had not seen the same---Medical evidence did not rehabilitate the case of prosecution when the presence of eye-witnesses at the scene of occurrence was disbelieved---"Kulhara" recovered from the house of the complainant after three and half months of the occurrence did not corroborate the prosecution case, when the same was neither blood-stained nor any report of Chemical Examiner or serologist was available on record---Motive being a double-edged weapon, complainant party in an unseen occurrence could involve anyone on the basis of suspicion with whom it had the enmity---Accused was acquitted in circumstances.

Kh. Waseem Abbas for Appellant.

Adeel Aqil Mirza, D.P.-G. for the State.

Date of hearing: 17th June, 2008.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1602 #

2008 P Cr. L J 1602

[Lahore]

Before Rana Zahid Mahmood, J

MUHAMMAD MUNIR AHMED----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.4276/B of 2008, decided on 9th July, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/148/149/109---Bail, grant of---Case of further inquiry---Ariel firing and Lalkara---Though accused was named in F.I.R., yet except for aerial firing and raising Lalkaras, accused did not cause any injury on the person of deceased---Co-accused were alleged to have inflicted numerous hatchets and Datter blows on deceased due to previous enmity of litigation between parties---Effect---Crime empties were not available at the scene of occurrence when police visited the site about three hours after registration of the case which fact, prima, facie coupled with allegation of aerial firing had brought the case of participation of accused in commission of offence in the ambit of further inquiry---Bail was granted in circumstances.

Samiullah Zia for Petitioner.

Ishaq Masin Naz, Dy. P.-G. with Muhammad Mansha, S.-I. for the State.

Tanvir Ahmad Randhawa for the Complainant.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1604 #

2008 P Cr. L J 1604

[Lahore]

Before Muhammad Akram Qureshi, J

Raja IBRAR HUSSAIN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.3954/B of 2008, decided on 26th May, 2008.

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

----S. 498---Penal Code (XLV of 1860), Ss.342/506/148/149---Pre-

arrest bail, refusal of---Accused was named in the F.I.R. with the specific allegation of attempting to abduct the complainant---Accused had been playing hide and seek with the Courts and had secured pre-arrest bail thrice from the lower Court---Having misused the concession of bail accused had disentitled himself to said concession which could be allowed to him in the normal course---During investigation accused had been found guilty and according to Investigating Officer pistol was yet to be recovered from him---Punishment under Ss.364/511, P.P.C. fell within the domain of prohibitory clause of S.497, Cr.P.C.---Pre-arrest bail was declined to accused in circumstances.

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

---Ss. 497/498---Bail---Misuse of concession of bail---Effect---Accused person who misuses the concession of bail disentitles himself to the said concession, which can be allowed to him in the normal course.

Shoaib Zafar for Petitioner.

Muhammad Naeem Malik for the Complainant.

Adeel Aqil Mirza, D.P.-G. along with Akram, S.-I. for the State.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1606 #

2008 P Cr. L J 1606

[Lahore]

Before Muhammad Ahsan Bhoon, J

Syed SHAHZAIB KAMAL----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.4010/B of 2008, decided on 20th June, 2008.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/337-A(i), (ii)/337-F(i)/148/149---Bail, grant of---Case of two versions--Occurrence had taken place in the house of accused who had been declared juvenile by Trial Court---Accused himself had suffered five injuries on his person---Specific role attributed to accused was that he had caused an injury to a prosecution witness, which was found "Shajjah Khafifah" falling under S.337-A(i), P.P.C. and was bailable---Though charge had been framed in the case, yet not a single witness had yet been examined---Case of accused fell within the ambit of S.497(2), Cr.P.C. requiring further inquiry and he was entitled to bail as of right and not as of grace---Accused was admitted to bail in circumstances.

Allah Ditta and others v. The State 1990 SCMR 307; Arif Din v. Amil Khan and another 2005 SCMR 1402; Muhammad Arshad v. The State 2004 SCMR 222; Muhammad Nawaz v. The State 2002 SCMR 1381 and Ehsan Akbar v. The State and 2 others 2007 SCMR 482 ref.

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

----S. 497(2)---Bail---Case of further inquiry---Right of bail not to be denied to accused--When a case of further inquiry is made out even during the trial prior to its conclusion, then accused cannot be denied his right of bail.

Naveed Anjum Saleemi for Petitioner.

Asif Mahmood Cheema, D.P.-G. for the State assisted by Sardar Balakh Sher Khosa for the complainant.

Zulfiqar Ali, S.-I. with record for the State.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1609 #

2008 P Cr. L J 1609

[Lahore]

Before Zafar Iqbal Chaudhry, J

MUNAWAR KHAN----Petitioner

Versus

AHMAD YAR and others----Respondents

Criminal Miscellaneous No.8850/BC of 2007, decided on 26th March, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.489-F---Bail, cancellation of---Counsel for petitioner/complainant had stated that respondent/ accused had made commitment in the court to pay certain amount to the petitioner on specified date and an opportunity was granted to the accused by the court, but accused absconded and did not appear in the court---Accused had not offered any plausible explanation for his non-compliance of the order of the court, whereby he was directed to pay the amount to petitioner on appointed date and also for his absconsion from the court---Keeping in view of conduct of accused, bail already granted to him was cancelled.

Malik Muhammad Mumtaz Mahal for Petitioner.

Mian Ismat Ullah, D.P.-G. for the State along with Ghulam Mustafa S.-I. with record.

Ahmad Yar respondent No.1 present in handcuffs in compliance of non-bailable warrants.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1621 #

2008 P Cr. L J 1621

[Lahore]

Before Muhammad Ahsan Bhoon, J

MUHAMMAD HAYAT----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.3946/B of 2008, decided on 3rd June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.379, 411, 148, 149, 337-A(i); (iii), 337-F(i) & 337-L(ii)---Bail, grant of---No specific role of causing injury to injured complainant had been attributed to accused---Accused was in the judicial lock up for the last about 8 months and was no more required for the purpose of investigation---Case of accused being at par with that of co-accused who had been allowed bail, principle of consistency was applicable to the case of accused---Accused could not be kept behind the bars for an indefinite period of time as premature punishment---Accused was admitted to bail, in circumstances.

Malik Muhammad Imtiaz Mahl for Petitioner.

Ch. Muhammad Zafar, D.P.-G. for the State along with Ghulam Husnain, S.-I. with record.

Ch. Muhammad Waheed for the Complainant.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1640 #

2008 P Cr. L J 1640

[Lahore]

Before Kazim Ali Malik, J

BASHIR AHMAD----Petitioner

Versus

HAIDER ALI CH. and another----Respondents

Criminal Miscellaneous No.4675/CB of 2008, decided on 16th July, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.386/342---Pre-arrest bail, cancellation of---Changed and reshaped version of the accused/ respondent qua his relationship with the co-accused woman itself was an evidence that they both had blackmailed 65 years old complainant, who had approached the woman accused in connection with proposed marriage of his daughter---Simple request for change of investigation by the accused was not a valid ground for his anticipatory bail---Result of investigation in favour of complainant to his satisfaction, was also no ground for grant of pre-arrest bail to accused---Sessions Court had observed against the record that there was no evidence to show that the woman co-accused had been running a Marriage Bureau---Mere fact of the respondent accused being a Government employee was even no ground for bail before arrest, rather his official position had adversely affected his case, as he could not be expected to indulge in immoral and illegal activities as mentioned in the F.I.R.---Alleged behaviour of accused was offensive of the accepted and recognized standards of official discipline---Specific and definite allegations had been made by the complainant against the accused and woman co-accused---No background of enmity existed between the parties---Accused had completely failed before the Sessions Court to show that the said allegations against him were tainted with mala fides---Sessions Court had allowed pre-arrest bail to accused arbitrarily, against the record and on whimsical grounds and the same was cancelled accordingly.

Mian Basharat Ali Dola for Petitioner.

Mrs. Azra Israr, D.P.-G. for the State with Nasir Mahmood, Inspector, S.H.O. and Faqir Hussain A.S.-I. with record.

Muhammad Asim Cheema for Respondent No. 1.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1659 #

2008 P Cr. L J 1659

[Lahore]

Before Tariq Shamim and Muhammad Ashraf Bhatti, JJ

THE STATE----Petitioner

Versus

SHOAIB alias BHUTTO----Respondent

Murder Reference No.460 of 2001, heard on 10th July, 2008.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S.374---Reference to High Court for confirmation of death sentence---Appreciation of evidence---Sentence, reduction in---Accused had not filed any appeal against his conviction and sentence---Trial Court had sent the reference to High Court for confirmation of death sentence passed against the accused---F.I.R. was promptly lodged containing the narration of the occurrence---Eye-witnesses including the complainant had fully corroborated each other in all material particulars and also affirmed the motive behind the incident---Mere relationship of the eye-witnesses with the deceased was not a valid ground for discarding or disbelieving their evidence---Ocular account was accurate and creditworthy---Some minor discrepancies in ocular testimony being of trivial nature were inconsequential---Accused being well-known to the complainant party, question of mistaken identity could not arise---Prosecution had well-established the place of occurrence---Medical evidence was in consonance with the eye-witness account and was conclusive as to the time of occurrence, locale of injuries and the weapons used in the incident---Complainant and other witnesses had no apparent reason to let off the real culprit in order to falsely implicate the accused in the crime---Conviction of accused was consequently upheld---Injury resulting in the death of the deceased had been caused by the absconding accused and the injury ascribed to accused was neither the cause of death of the deceased, nor was on a vital part of his body---Prosecution had failed to prove recovery of weapon of offence from the accused---Occurrence was, in fact, found to be a sudden affair---Death sentence of accused was reduced to imprisonment for life in circumstances.

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

----S. 302(b)---Motive---Motive is a double-edged sword which cuts both ways---Motive can furnish ground for committing the offence and can also provide reason for false implication of accused in the case.

----S. 302(b)---Recovery---Recovery is only a supporting piece of evidence, which by itself is not sufficient to base conviction.

Syed Faisal Raza Bokhari, D.P.-G. for the State.

Alia Neelam, Defence Counsel.

Date of hearing: 10th July, 2008.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1674 #

2008 P Cr. L J 1674

[Lahore]

Before Rana Zahid Mahmood, J

NAJMA BIBI----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.898/B of 2008, decided on 16th July, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/460/396---Bail, refusal of---Though the accused lady was not named in the F.I.R., yet in the supplementary statement of the complainant she had been implicated in the commission of the offence along with her relatives and one another person who was a proclaimed offender---Recovery of gold ornaments and foreign and Pakistani currency worth over three crores rupees had, prima facie, connected her with the commission of crime---Offence against the accused fell within the prohibitory clause of S.497(1), Cr.P.C.---Merely because accused was a woman and had given birth to a child in jail, did not entitle her as a matter of right to claim bail in a double murder case---Bail was declined to accused in circumstances---Trial Court, in circumstances, was directed to expedite the trial without letting any undue delay to crop in.

Najma Bibi v. The State 2008 PCr.LJ 1112 distinguished.

Mst. Faiz Bibi v. The State 2003 YLR 2295 rel.

Abdul Samad Khan for Petitioner.

Muhammad Mazhar Sher Awan, Addl. P.-G. with Muhammad Bashir Tahir, S.-I. for the State.

Muhammad Khalid Sajjad Khan for the Complainant.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1687 #

2008 P Cr. L J 1687

[Lahore]

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

KHALIL AHMAD and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.1513 to 1518 of 2003 and Murder Reference No.35-T of 2003, decided on 7th December, 2004.

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

----Ss. 7(a) & 7(h)---Penal Code (XLV of 1860), Ss.148 & 337-L(2)---Appreciation of evidence---Complainant, wife of one deceased and mother of other deceased, had never claimed in the F.I.R. lodged by her to be an eye-witness of the occurrence, but in the private complaint instituted by her after five months of the said occurrence she had claimed to have witnessed the occurrence herself---Both the other eye-witnesses were not only closely related to the deceased but were also quite inimical towards the accused and had made contradictory statements regarding the sequence of events taking place during the incident and the roles allegedly played by the accused and their co-accused during the same---Parties were admittedly locked in an ongoing murder feud and they had been implicating each other in different cases of murder etc. for quite some time---In such backdrop of pitched enmity between the parties, 'motive set up by the prosecution, which was a double-edged weapon and could cut both ways, could not safely provide independent corroboration to the ocular account furnished against the accused---No weapon of offence was recovered from the possession of accused---No specific injury having been attributed by the prosecution to any of the accused, medical evidence could not provide any independent support qua the individual accused, so as to confirm his participation in the alleged occurrence---F.I.R. lodged by the complainant having been recorded at the place of occurrence and not at the police station, had indicated that the same had been recorded after due deliberations and preliminary investigation---Private complaint instituted by complainant after five months of the occurrence had also provided sufficient time to the complainant party to falsely implicate anybody otherwise inimical towards it---Prosecution case had failed to receive any independent corroboration or confirmation so as to inspire confidence in the 'ocular testimony---Three injured persons who were independent and impartial witnesses of the occurrence had not been cited by the complainant party as its witnesses and they had appeared before the Trial Court as defence witnesses and did not identify or incriminate the accused as members of the assailing party---Accused were acquitted on benefit of doubt in circumstances.

(b) Criminal trial---

----Motive---Nature and scope---Motive in a criminal case is a double-edged weapon which can cut both ways, on the one hand it can provide motivation to the accused party to commit an offence against the complainant party and on the other hand it can also prompt or propel the complainant party to falsely implicate the accused party so as to get even with it in order to settle an old score.

Naveed Inayat Malik for Appellants.

Salman Safdar, Barrister-at-Law, Special Prosecutor for the State.

Dates of hearing: 6th and 7th December, 2004.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1704 #

2008 P Cr. L J 1704

[Lahore]

Before Tariq Shamim, J

Syed AKBAR ALI SHAH NAQVI----Petitioner

Versus

STATION HOUSE OFFICER/INCHARGE INVESTIGATION AND PROSECUTION BRANCH CUSTOMS INTELLIGENCE, GUJRANWALA and 5 others----Respondents

Writ Petition No.6046 of 2007, decided on 30th October, 2007.

Customs Act (IV of 1969)---

----S. 156(1)(77) & (85)---Constitution of Pakistan (1973), Art.199-Constitutional petition---Quashing of F.I.R.---Allegations levelled in the F.I.R. were found to be correct and challan had been submitted in the Trial Court---Contention that F.I.R. was lodged earlier to the occurrence, was without any substance as on account of a typographical mistake the year of occurrence was mentioned as 2007 instead of 2006---Delay in lodging F.I.R. alone could not be made a valid basis for quashing an F.I.R.---Challan having been submitted, accused had an adequate alternate remedy available to him under the law by way of approaching the Trial Court---Matter essentially pertained to disputed questions of fact which could not be resolved by High Court in its constitutional jurisdiction---Accused had not been able to put forth any plausible ground for quashing of F.I.R. in question, which if quashed, would amount to stifling the prosecution.

Miss Tasneem Amin for Petitioner.

Muhammad Khalid Ch. for Respondents.

Syed Iftikhar Hussain Shah, D.A.-G. for the State.

Date of hearing: 30th October, 2007.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1706 #

2008 P Cr. L J 1706

[Lahore]

Before Maulvi Anwarul Haq and Syed Hamid Ali Shah, JJ

Hafiz MUHAMMAD SALEHEEN----Petitioner

Versus

SPECIAL JUDGE ANTI-TERRORISM, RAWALPINDI and 6 others----Respondents

Writ Petition No.787 of 2007, decided on 25th June, 2008.

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

---Ss. 6(1)(b), 7 & 28---Penal Code (XLV of 1860), Ss.337-A(iii), 147 & 149---Constitution of Pakistan (1973), Art.199---Constitutional petition---Transfer of case from Anti-Terrorism Court to Court of Session---Persons who were stated to have initiated occurrence, had come to offer their prayer, at the spur of moment were enraged by the word of caution by the complainant/petitioner to them in the matter of reciting Kalma' loudly while other people were still offering their prayers, which ultimately led to scuffle resulting in injuries recorded under S.337-A(iii), P.P.C. to some persons---Section 6(1), P,P.C. did not refer to a design and intention to coerce and intimidate a particular sect---Design and intention was further clarified by the definition of wordsectarian' and `sectarian hatred' as given in S.2(u)(v) of Anti-Terrorism Act, 1997---Such an intention or design was not apparent on the face of the F.I.R.---Constitutional petition was dismissed.

Muhammad Bashir Paracha for Petitioner.

Syed Husnain Kazmi, A.A.-G.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1708 #

2008 P Cr. L J 1708

[Lahore]

Before M.A. Zafar, J

EHSAN ELAHI----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.2310-B of 2008, decided on 8th April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.395---Bail, grant of---Accused was not named in the F.I.R. among the other culprits who were named therein---Delay of 24 hours in lodging F.I.R. and no identification parade was held in the case---Co-accused from whom car and mobile were recovered, had already been allowed bail by the High Court, whereas accused was in jail for the last about 13 months-Accused was admitted to bail, in circumstances.

Ch. Zulfiqar Ali for Petitioner.

Ahsan Rasool Chattha, D.P.-G. for the State.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1709 #

2008 P Cr. L J 1709

[Lahore]

Before Hasnat Ahmad Khan and Kazim Ali Malik, JJ

MUHAMMAD YAQOOB----Petitioner

Versus

SUPERINTENDENT, CENTRAL JAIL, FAISALABAD and 4 others----Respondents

Writ Petition No.9259 of 2008, decided on 30th July, 2008.

Criminal Procedure Code (V of 1890)---

----Ss. 374, 376 & 381---Constitution of Pakistan (1973), Arts.4, 45, 48 & 199---Penal Code (XLV of 1860), S.302---Constitutional petition---Confirmation of death sentence---Execution of black-warrant---Pray to postpone execution---Death sentence awarded to accused having finally been confirmed upto Supreme Court, black-warrant for the execution of death sentence had been issued---Application for stay of execution of death sentence was filed by condemned prisoner contending that Prime Minister had sent summary to President of Pakistan for commutation of death sentence awarded to all condemned prisoners into that of imprisonment for life and that under Art.48 of the Constitution, President of Pakistan was bound to act in accordance with the advice of cabinet or the Prime Minister---Condemned prisoners further prayed that as Supreme Court had already taken a suo motu notice regarding the summary sent by the Prime Minister to President for commutation of death sentence into that of imprisonment for life, propriety demanded that till the decision of the matter by the Supreme Court, execution of black-warrant of condemned-prisoner be stayed---Validity---President of Pakistan, no doubt had got a power to commute death sentence awarded to the condemned-prisoners in the case of Ta'zir, while exercising his power under Art.45 of the Constitution, but the President had not accepted the summary if any, sent by the Prime Minister---No notification was in the field to commute the death sentence awarded to the condemned-prisoners awaiting the execution of the death sentence---Neither there was any law nor any Presidential Order in the light of which the execution of death sentence could be stayed by the High Court---Contention that President of Pakistan was bound by the advice of the Prime Minister, was repelled in view of sub-Art.(2) of Art.48 of the Constitution---Action of execution of death sentence thus was not violative of law---During the pendency of the suo motu matter before the Supreme Court, High Court could not pre-empt the decision of the Supreme Court---Constitutional petition was dismissed.

Abdul Malik v. The State PLD 2006 SC 365; Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others PLD 1992 SC 595 and Sakina Bibi v. Federation of Pakistan PLD 1992 Lah. 99 ref.

Sardar Khurram Latif Khan Khosa for Petitioner.

Aamir Rehman and Qamar-uz-Zaman Qureshi, Dy. A.-G. for Pakistan and Ch. Muhammad Hussain, Addl. A.-G., Punjab on Court's call with Mehboob Ali, Section Officer.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1716 #

2008 P Cr. L J 1716

[Lahore]

Before Fazal-e-Miran Chauhan and Rana Zahid Mahmood, JJ

MUHAMMAD NASIR and another----Appellants

Versus

THE STATE and others----Respondents

Criminal Appeal No.1196 and Criminal Revision No.663 of 2002, heard on 24th June, 2008.

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

----S. 302(c)---Appreciation of evidence---Promptly lodged F.I.R. had itself excluded the possibility of any deliberations or false involvement---Had the eye-witnesses been not present at the scene of occurrence, they could not narrate the facts by specifically nominating the accused in the F.I.R. with specific role of infliction of injuries on the deceased---Accused had the motive to commit the murder of the deceased, which had squarely been proved by the prosecution---Mere relationship of the prosecution witnesses with the deceased, per se, was no ground to discredit their testimony---Trial Court had sentenced the accused to twenty years' R.I. under S.302, P.P.C. without specifying the subsection, although it was under the legal obligation to do so---Presumption would be that Trial Court had passed the conviction and sentence under S.302(c), P.P.C. against the accused---Trial Court had rightly adjudged the accused to be entitled for mitigation in the matter of sentence, as deceased had refused to give divorce to his sister who was in the Nikah of the deceased for the last five years without any "Rukhsati" having taken place and the accused was in persistent agony due to relations between the parties having gone worse---Conviction and sentence of accused were upheld in circumstances.

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

----S. 302---Motive---Sufficiency or otherwise of the motive itself is no ground for suspecting the commission of offence by the accused.

----S. 302---Appreciation of evidence---Principles---Relationship of prosecution witnesses with the deceased, per se, is no ground to discredit and discard their testimony---Main thing to be seen is the presence of the prosecution witnesses at the spot at the relevant time, whether it was natural or not and whether prosecution had explained their presence at the relevant time in a satisfactory manner.

Shoaib Zafar for Appellant (in Criminal Appeal No.1196 of 2002).

Ijaz Ahmad Bajwa, Dy. P.-G. for the State (in Criminal Appeal No.1196 of 2002).

Nemo for Petitioner (in Criminal Revision No.663 of 2002).

Ijaz Ahmad Bajwa, Dy. P.-G. for Respondent (in Criminal Revision No.663 of 2002).

Date of hearing: 24th June, 2008.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1723 #

2008 P Cr. L J 1723

[Lahore]

Before Tariq Shamim and Muhammad Ahsan Bhoon, JJ

ANSAR MEHMOOD alias MANA and 2 others----Appellant

Versus

MUHAMMAD RAFIQUE and another----Respondents

Criminal Appeal No.853 and Murder Reference No.404 of 2002, heard on 2nd July, 2008.

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

---Ss. 302(b) & 302(c)---Appreciation of evidence---Sentence, reduction in---Mitigating circumstance---Accused, father of principal accused, had been found innocent during investigation and he was not even arrested by the police and recovery of "Chhuri" from him, therefore, did not appeal to reason and the same had been planted on him being head of the family---Other accused was not attributed any role of causing any injury either to the deceased or to any prosecution witness, nothing incriminating was recovered from him and according to evidence on record he had not participated in the occurrence---Case against both these accused without any independent corroboration was doubtful and they were acquitted accordingly.

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

----S. 302(b)---Appreciation of evidence---Accused had admitted to have committed the murder of the deceased in self-defence to save the honour of his real paternal aunt when the deceased had tried to forcibly abduct her, but that plea was not borne out from the evidence---Said paternal-aunt of accused had appeared as a defence witness just for the rescue of her nephew, as the same plea was not even taken during investigation---Causing of "Chhuri" blows to the deceased had been admitted by the accused and the recovery of blood-stained "Chhuri" from him was a further piece of corroborative evidence against him---Conviction of accused was maintained accordingly---Statement of accused under S.342, Cr.P.C. and his school leaving certificate showed that he was about 16 years of age at the time of occurrence---Admittedly occurrence had taken place due to exchange of hot words between the accused and the deceased, actual cause of which stood shrouded in mystery---Such being the mitigating circumstances in favour of accused, his sentence of death was converted into imprisonment for life in circumstances.

Imran Asmat Chaudhry for Appellant.

Qazi Zafar Iqbal Ahmad, Addl. P.-G. for the State.

Date of hearing: 2nd July, 2008.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1730 #

2008 P Cr. L J 1730

[Lahore]

Before Hasnat Ahmad Khan and Muhammad Ahsan Bhoon, JJ

MUHAMMAD AKMAL and others---Appellants

Versus

THE STATE---Respondents

Criminal Appeal No.784 and Murder Reference No.405 of 2002, heard on 7th July, 2008.

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

----Ss. 302(b) & 324/34---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Time and venue of the occurrence was not denied---Basic fact which led to the controversy between the parties, stood admitted on both the ends---As one of accused persons had divorced his wife who was the daughter of the complainant, complainant had a strong motive to attack accused, whereas accused had no reason to launch an attack on the complainant party---Medical evidence was in line with ocular evidence---No major contradiction was found between the medical evidence and the ocular evidence---Accused could not have any benefit on the basis of major inconsistencies, especially when evidence of the prosecution was supported by the statements of two injured eyewitnesses---Defence did not challenge the presence of witnesses at the time and place of occurrence---Both the eye-witnesses being injured witnesses, their presence at the time and place of occurrence, could not be disbelieved, especially, when their presence at the relevant time and place had not been seriously challenged by the defence---Plea of self-defence as raised by accused could not be accepted as participation of both accused could not be doubted, because according to their own showing both of them had received injuries during the occurrence---Even otherwise, they had not denied their presence at the place of occurrence---Both injured witnesses were present at the time of occurrence and they did witness the occurrence---Accused failed to establish their plea of self-defence through their statements---Charge of double murder stood proved against both accused persons---Prosecution had not come with clean hands, as both the parties had tried to suppress the real fact which became the immediate cause of occurrence---Both accused received injuries during the same occurrence---Prosecution made a deliberate attempt to suppress the injuries suffered by both accused---Both parties had tried to minimize the role played by each of them during the occurrences--Immediate cause of the occurrence was shrouded in mystery---Hostility prevailed between the parties due' to the fact that one of accused persons, had divorced complainant's daughter---Both the parties did not come forward with the true story about encounter and the genesis of the fight was not clear---It could not be said with certainty as to what transpired between the parties prior to the occurrence and which of the parties took the initiative, especially when occurrence took place near the house of deceased---Mitigating and extenuating circumstances existed, in circumstances, necessitating the commutation of death sentence awarded to both accused to one of imprisonment for life--Maintaining conviction of accused under S.302(b), P.P.C., death sentence awarded to both accused, was converted into imprisonment for life with benefit of S.382-B, Cr.P.C.

Syed Ali Bepari v. Nibara Mollah and others PLD 1962 SC 502; Muhammad Iqbal v. The State PLD 1996 Lah. 402; Naubahar v. The State 1999 SCMR 637; Ahmad Khan v. Nazir Ahmad 1999 SCMR 803; Husnain Shah v. The State 1999 SCMR 1937; Shahid Raza v. The State 1992 SCMR 1647 and Muhammad Yousaf v. The State 1994 SCMR 1733 rel.

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

---Ss. 96, 302(b) & 324---Qanun-e-Shahadat (10 of 1984), Art.121---Appreciation of evidence---Plea of self-defence---After raising the plea of self-defence, the burden of proof shifted on accused persons in view of the provisions of Art.121 of the Qanun-e-Shahadat 1984, but accused persons failed to discharge the said burden---Accused neither opted to advance such a plea while making their statements under S.342, Cr.P.C. nor did they appear under S.340(2), Cr.P.C.; they did not produce any witness in support of the plea of self-defence raised by them---Extensive damage, suffered by the complainant party in the alleged encounter belied self-defence plea, for multiple fire-arm wounds were caused to both deceased along with serious fire-arm injures suffered by injured---In sharp contrast to the numerous injuries received by the complainant party, accused received only one incised wound on his cheek---Plea of self-defence raised by accused persons could not be accepted, in circumstances.

Kh. Waseem Abbas for Appellant.

Arif Karim, Deputy Prosecutor-General for the State.

Date of hearing: 7th July, 2008.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1742 #

2008 P Cr. L J 1742

[Lahore]

Before Tariq Shamim and Muhammad Ashraf Bhatti, JJ

ASHFAQ AHMED and others---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.1820 and Murder Reference No.808 of 2002, heard on 15th July, 2008.

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

----Ss. 302/148/149---Appreciation of evidence---Grave and sudden provocation---Sentence, reduction in---Evidence on record had fully proved that occurrence had taken place in the house of accused and not at any other place as claimed by defence and that both the injuries were caused by accused at the back of deceased---Statements of Doctors, Medico Legal Report and post-mortem report had fully corroborated those facts---Recovery of pistol taken into possession from accused was fully testified by the Investigating Officer and prosecution witnesses, who had no malice or mala fide against accused---Defence made another effort to dislodge the prosecution case by putting the blame of injuries on the person of deceased on some thief, but could not prove same and that story proved to be concocted one---Prosecution witnesses as also accused had deliberately suppressed the immediate cause of the murder of deceased---Motive as alleged by the prosecution, even if believed to be not proved, would not play any leading role in the given circumstances of the case nor it was always necessary that prosecution must prove the motive alleged and particularly in the case, prosecution was not bound to prove it when ocular evidence was believable---Accused having specifically alleged in his statement under S.342, Cr.P.C. that he had reprimanded deceased and restrained him from visiting his house due to suspicion of his mother's illicit relations with deceased, accused must have been provoked when he saw accused in the living room again; and so being immature and a youth of just 20 years, attacked the deceased under provocation---No previous enmity existed between the parties; it could be inferred that accused must have been enraged upon the deceased's indecent and immoral conduct at the time of occurrence, must have lost control and in that heat of moment, caused injuries on person of deceased---Extreme penalty of death awarded to accused in terms of S.302(b), P.P.C., was hardly called for, when the case was of grave provocation---Case, in circumstances fell under S.302(c), P.P.C.---Death sentence awarded to accused by the Trial Court, was converted into 14 years R.I. and accused was also held entitled to benefit of S.382-B, Cr.P.C.

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

----S.302(b)(c)---Appreciation of evidence---Awarding of lesser punishment---Courts could not be made hostage to a singular inference against an accused, if on record there was otherwise convincing evidence available to giving him benefit of providing a valid and logical basis to do substantial justice to the parties by awarding lesser punishment which really would commensurate with the offence committed.

Kh. Waseem Abbas, Defence Counsel for Appellants.

Qazi Zafar Iqbal, Additional Prosecutor-General for Respondents.

Date of hearing: 15th July, 2008.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1749 #

2008 P Cr. L J 1749

[Lahore]

Before Rana Zahid Mahmood, J

Mst. MUNAWAR SULTANA---Petitioner

Versus

MUHAMMAD SHAFIQUE alias MITHU and 4 others---Respondents

Criminal Revision No.50 of 2008, decided on 1st July, 2008.

Criminal Procedure Code (V of 1898)---

----S.540---Summoning of witnesses---Scope---Provision of S.540, Cr.P.C., was of wide import and its scope was quite exhaustive and a court of competent jurisdiction could summon any person who was acquainted, in the opinion of the court, with the facts in issue in a criminal case for its just decision---Opinion of Police Officer revealed that witnesses sought to be summoned were the witnesses of last seen of the deceased in the company of accused---Said police officer recorded said fact in the daily diary---For the just decision of the case the Trial Court could summon said persons as court-witnesses, but the court declined to do so---Satisfaction of the court as mentioned in S.540, Cr.P.C. should be objective and not subjective---Application filed by the petitioner under S.540, Cr.P.C. before the Trial Court, was neither out of context nor was moved with any ulterior motive to drag accused through prolonged litigation---Petition was accepted and impugned order whereby application for summoning witnesses was dismissed was set aside with a direction to the Trial Court to summon the required person for recording their statements as prosecution witnesses, in accordance with law.

Muhammad Yaqoob v. Sessions Judge, Kasur and others 2003 MLD 1296 rel.

Muhammad Taqi Khan for Petitioner.

Ishaq Masih Naz, Deputy Prosecutor-General.

Malik Rabnawaz for Respondents Nos.4 and 5.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1752 #

2008 P Cr. L J 1752

[Lahore]

Before Tariq Shamim and Muhammad Ashraf Bhatti, JJ

MUHAMMAD SAEED alias RASHID alias SHEDA and another---Petitioners

Versus

THE STATE---Respondent

Criminal Appeal No.1179 and Murder Reference No.402 of 2003, heard on 21st July, 2008.

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

----S. 302(b)---Appreciation of evidence-Presence of eye-witness at the spot had become doubtful in circumstances of the case---Strong doubt about the prosecution story gave impression that occurrence did not take place in the manner tried to be proved at the trial; either that was a deliberate attempt to withhold natural and direct evidence that could be made available at the trial by the prosecution or was a dishonest statement on the part of prosecution, more particularly by the Investigating Officer---Said circumstances had strengthened the defence version that the eye-witnesses did not see the occurrence---Co-accused strangely spared the complainant who was at his mercy, being few feet away from him; it was improbable because neither co-accused nor accused could afford to spare the complainant giving him a chance to be an eye-witness of the occurrence specially when they were fully in control of the situation and would have hardly any justification not to kill him---Introduction of the effective role by co-accused in the F.I.R. and thereafter explaining it at the trial that it was just an omission, had made the prosecution story worthy of no credence---Private recovery witness having associated the police at the time of both recoveries which were effected from the house being jointly possessed by families of accused persons, that required strong corroboration---No person from the respective vicinity was associated with the recovery proceedings---Recovered items were not sealed into parcels and had been taken to the police station in a naked condition---No empties were also found from the place of occurrence---No question of matching as to whether or not the fires were shot from the same guns---Recoveries, in circumstances were not reliable---Accused persons had made out a case that the ocular account furnished by the prosecution was full of contradictions, based upon improbabilities---Medical evidence had not advanced the case of prosecution---Number of discrepancies present in the prosecution case, discredited the ocular account furnished by the eye-witness---More than one instances having shattered the case of the prosecution, benefit thereof must go to accused---Accused were acquitted and released from jail after setting aside judgment of the Trial Court.

Tariq Pervez v. The State 1995 SCMR 1345 and Riaz Masih alias Mithu v. The State 1995 SCMR 1730 rel.

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

----S.302 (b)---Appreciation of evidence---Benefit of doubt---Not necessary that there should be a number of circumstances creating doubt, but a simple circumstance could create reasonable doubt---If a simple circumstance would create reasonable doubt in the mind of a man of ordinary prudence, about guilt of accused, he would be entitled to such benefit of doubt not as a matter of grace and concession, but as a matter of right.

Syed Ijaz Qutab for Appellant No 2.

Kh. Waseem Abbas, Defence Counsel for Appellant No. 1.

Qazi Zafar Iqbal, Additional Prosecutor-General for the State.

Date of hearing: 21st July, 2008.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1760 #

2008 P Cr. L J 1760

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

SHABBIR AHMED---Petitioner

Versus

MUHAMMAD HANIF and another---Respondents

Criminal Miscellaneous No.2414-CB of 2005, decided on 26th April, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.489-F---Bail, refusal to cancel---Cheque in dispute was never taken into custody by the police and the case of the prosecution rested upon the photostat copy of the said cheque---What would be the value of that type of evidence, was to be decided by the Trial Court after recording of evidence of both the sides---In the absence of any original document, it was difficult to rebut the stand of respondent/accused that the cheque in dispute was tampered with and that at the time when the cheque was executed, S.489-F, P.P.C. was not in existence---No force existed in petition for cancellation of bail, same was dismissed.

Muhammad Mudassar Bodla for Petitioner.

Ch. Waseem Ahmed for Respondent.

Miss Shehzadi Parveen for the State.

Zafar Iqbal, A.S.-I.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1762 #

2008 P Cr. L J 1762

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD YOUSAF---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6152-B of 2005, decided on 27th September, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.392 & 395---Bail, grant of---Further inquiry---F.I.R. in the case had been lodged with a delay of two days---Accused was not named in F.I.R., but his name had surfaced in the case for the first time through a supplementary statement made by the complainant after six days of the alleged occurrence-Complainant had implicated accused exclusively on the basis of an extra-judicial confession allegedly made jointly by two accused before the complainant---Said joint extra-judicial confession was devoid of any evidentiary value---Complainant, in the F.I.R., had specifically nominated three culprits, in supplementary statement made by him, he exonerated said nominated culprits and instead introduced five others including accused as the culprits---No stolen article had been recovered from the possession of accused during investigation in the case---Although a pistol had been recovered from the custody of accused, during the investigation, but prima facie, nothing was available on the record of investigation to connect said pistol with the alleged offence---Investigation of the case had already been completed and the report under S.173, Cr.P.C. had been submitted by the police and it had expressly been recorded in the report that accused had never entered the house where alleged occurrence had taken place and throughout the said occurrence; accused kept on standing out in the street---Case against accused, calling for further inquiry into his guilt within the purview of subsection (2) of S.497, Cr.P.C., he was admitted to bail, in circumstances.

Ch. Waseem A. Bhaddar for Petitioner.

Wajeeh-ud-Din Parvez for the State.

Muhammad Younus, S.-I. with record.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1764 #

2008 P Cr. L J 1764

[Lahore]

Before Hasnat Ahmad Khan, J

BUSHRA BIBI---Petitioner

Versus

MUHAMMAD RIAZ and 2 others---Respondents

Criminal Revision No.515 of 2007, decided on 7th July, 2008.

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

---Ss. 540 & 439---Penal Code (XLV of 1860), Ss.302/324/148/149---Summoning of witness---Earlier application filed by petitioner along with other co-accused under S.540, Cr.P.C. for summoning Police Inspector as court witness, was finally dismissed by the Trial Court---Subsequently petitioner moved another application before the Trial Court with the same prayer, which also was dismissed---Validity---Order dismissing application filed under S.540, Cr.P.C. having attained finality, was not open to challenge in the subsequent criminal revision---Section 540, Cr.P.C. though vested powers upon a Trial Court to summon a witness on its own or upon the application of either party, but the court was under obligation to see whether summoning of said witness was material for the just conclusion/decision of the case---Witness sought to be summoned, had not initially investigated case---In the original report submitted by the police, the name of said witness did not find mention---Record had revealed that investigation was entrusted to said witness later on for re-investigation; he did not recommend the matter for submission of any supplementary challan, but after the dismissal of earlier application on the same subject by the Trial Court, accused succeeded to get the supplementary challan submitted---Application filed by petitioner, did not disclose any genuine reason for summoning the said witness as a court-witness---Petitioner had failed to substantiate that the recording of statement of said witness was essential for just decision of the case---Said Police Officer could not be summoned as a court witness just on the ground that in the supplementary challan, which, prima facie, was manoeuvred after two years of occurrence, said Police Officer was named as a witness in the calendar of witnesses--Besides, said witness could not be summoned just to fulfil the desire of the petitioner---Proceedings of the trial, which had almost been completed, had already consumed more than three years---Counsel for the petitioner had failed to point out any illegality or jurisdictional error committed by the Trial Court while dismissing application of petitioner for the summoning of said Police Officer as the court-witness---Impugned order did not call for any interference by the High Court in exercise of its revisional jurisdiction---Revision petition was dismissed, in circumstances.

Bashir Hussain v. The State and 5 others 2001 PCr.LJ 2031 and Muhammad Sharif v. The State 8 others 2007 PCr.LJ 914 rel.

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

----S. 540---Summoning of material witness---Interpretation and scope of S.540, Cr.P.C.---Section 540, Cr.P.C. was divided into two parts---First part was discretionary in nature, whereas the second part was mandatory---As per the first part of S.540, Cr.P.C., it was a discretionary power of the court to summon any person as a witness suo motu or on an application of 'a party according to second part, the power to summon, examine or recall and re-examine any person as a witness, was to be exercised with care and caution---Court could not use said powers to advance the case of the prosecution or defence, but said powers were meant only to advance the cause of justice---Solitary purpose of judicial proceedings in the criminal case was to find out the truth by arriving at a correct conclusion, so that no innocent person should be punished, merely because of certain technical omissions on his part or on the part of the court---If it appeared essential to the court that the evidence was necessary for the just decision of the case, under second part of S.540, Cr.P.C., it would become obligatory for the court to examine such a witness, ignoring the technical and formal objections---Whole stress on the power for examining any person as a court witness, whether already examined or not, was that his evidence should appear to be essential for the just decision of the case---Exercise of power under S.540, Cr.P.C. was a matter of discretion, but said discretion was not to be exercised to favour one or the other party---Said power could be exercised to know about such facts which had not come on record already, due to the failure of either of the parties, or due to the reasons beyond the control of any of the parties, or on account of something which had come to light during the trial---While exercising the powers given under S.540, Cr.P.C., it had to be seen by the court as to how would the bringing on record of such an evidence, help the court to arrive at a just decision.

Ch. Pervaiz Iqbal Gondal for Petitioner.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1770 #

2008 P Cr. L J 1770

[Lahore]

Before Muhammad Farrukh Mahmud and Sardar Muhammad Aslam, JJ

FAROOQ KHAN alias MUHAMMAD FAROOQ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.537 and Murder Reference No.287 of 2000, heard on 18th April, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Presence of complainant/injured eye-witness who furnished eye-witness account of the incident, was established at the spot---Said witness had been cross-examined at length, but defence had not been able to shatter his testimony on any material point---Intrinsic worth of the statement of said witness could not be discarded and reliance could safely be placed on his statement---Prosecution sought corroboration to statement of said witness through medical evidence and medical evidence was found in line with ocular account furnished by said witness---Motive behind the occurrence which was an altercation between the complainant and one of accused persons had fully been proved---Recovery of Chhuri on pointation of accused had been proved in presence of Police Officer---Statement of said Police Officer was as good as of any other public witness in absence of any ill-will or animosity---Trial Court appreciated the evidence and correctly sifted the grain from chaff---Prosecution had fully proved its case through statement of an injured eye-witness whose presence at the spot stood established and found corroboration from medical evidence, motive and recovery of blood stained earth---Conviction and sentence awarded to accused by the Trial Court were maintained.

Malik Muhammad Imtiaz Mahal for Appellant.

M. Aslam Malik for the State.

Date of hearing: 18th April, 2006.

PCrLJ 2008 LAHORE HIGH COURT LAHORE 1774 #

2008 P Cr. L J 1774

[Lahore]

Before Maulvi Anwarul Haq and Syed Hamid Ali Shah, JJ

THE STATE---Petitioner

Versus

Mst. SHAZIA MUBASHIR---Respondent

Criminal Miscellaneous No.898-CB of 2007, decided on 25th June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.302, 120(b), 324, 121, 121-A, 440, 435, 436 & 124---Explosive Substance Act (VI of 1908), Ss.3, 4 & 5---Anti-Terrorism Act (XXVII of 1997), S.7---Pakistan Army Act (XXXIX of 1952), Ss.31(d) & 96---Cancellation of bail, petition for---Accused though was not nominated in F.I.R., but the acts committed, had been described therein---Section 96 of Pakistan Army Act, 1952 barred a retrial, not only for the same offence, but also on the same facts---Anti-Terrorism Court had correctly opined that the case of accused was of further inquiry entitling her to bail after incarceration of more than three years during which period she was tried and acquitted---Petition for cancellation of bail was dismissed in circumstances.

Syed Husnain Kazmi, A.A.-G. for the State.

Col. (R) Muhammad Akram for Respondent.

Muhammad Khan, S.-I. with records.

Northern Areas Chief Court

PCrLJ 2008 Northern Areas Chief Court 71 #

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Peshawar High Court

PCrLJ 2008 PESHAWAR HIGH COURT 165 #

2008 P Cr. L J 165

[Peshawar]

Before Ijaz-ul-Hassan Khan and Dost Muhammad Khan, JJ

SAFDAR ALI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.792 of 2006, decided on 9th October, 2007.

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

----Ss. 9(c) & 25---Appreciation of evidence---All witnesses gave the same details of the incident and as their statements bore all shades of truth, no reason appeared from the record for the rejection of their testimony---Evidence of said witnesses was corroborated by Chemical Analyzer's report which had shown that samples were Charas and opium---All witnesses were cross-examined by the defence counsel, but he could not obtain any material contradiction in their evidence---All the witnesses were unanimous on salient features and material aspect of the case and had supported the prosecution case---Delay in lodging the F.I.R. had been explained---Recovery of narcotic substance had been made in accordance with the provisions of S.25 of the Control of Narcotic Substances Act, 1997 and said provisions of special statute, had specifically excluded application of S.103, Cr.P.C.---Prosecution had succeeded in proving its case to the hilt and the conclusion drawn and reasons given by the Trial Court had shown fair evaluation of evidence---Huge quantity of contraband material had been recovered from the vehicle in question---Accused appeared to have been dealt with appropriately---No illegality or infirmity was found in the impugned judgment warranting interference of High Court.

Ghiasuddin and others v. Ghulam Mohyuddin and others 2005 SCMR 471; Hussain Abid Jaffary v. The State 2006 PCr.LJ 58; 2007 YL 605 and Abdul Hassan and another v. The State 2007 YLR 1799 rel.

Noor Alam Khan for Appellant.

F.M. Sabir for the State.

Date of hearing: 9th October, 2007.

PCrLJ 2008 PESHAWAR HIGH COURT 180 #

2008 P Cr. L J 180

[Peshawar]

Before Ejaz Afzal Khan and Dost Muhammad Khan, JJ

SHAHID SHAHZAD----Appellant

Versus

THE STATE and another----Respondents

Criminal Appeals Nos.283, 282 and 292 of 2005, heard on 20th September, 2007.

Penal Code (XLV of 1860)---

----Ss. 302(b), 387 & 452---Appreciation of evidence---Incident was an unseen event which had taken place at night time inside the house of deceased behind closed doors---Illegal arrest and detention for more than a month of accused had been dishonestly suppressed by the prosecution---After going through the ordeals of ruthless interrogation while kept in illegal detention, nothing was extracted from accused---Once it was established that investigation conducted was dishonest or unfair, the court must be on its guard and should exercise extraordinary care and caution to ensure that it might not be deliberately taken to a wrong conclusion due to misleading tactics of the prosecution---Accused, who was grilled and was given gruesome treatment in a horrifying way, in that background his confession which was substantially self-exculpatory, was bereft of legal worth and was deficient to carry conviction on a capital charge---Even otherwise confession of accused was procured through Duty Magistrate and no reason had been given for that departure from established practice---Three confessional statements of accused persons being inconsistent, self-clashing and self-contradictory was more than sufficient reason to make prosecution case of doubtful credentials---Combined study of three confessional statements and other relevant evidence connected therewith had rendered the entire prosecution story untrue and unbelievable---Confessions which were retracted were recorded on 6th day of arrest of accused---Delay per se in recording confession of accused might not be held ,fatal, but in the fact and circumstances of the case, delay in recording confessions was fatal for the prosecution---Medical evidence too was of no help to the prosecution---Neither the crime pistol nor the magazine of the rifle nor the SIM of the Cellular phone of deceased was recovered at the instance of accused, which might had created some nexus between accused and the crime---Prosecution had failed to prove the guilt of accused beyond reasonable doubt---Extending benefit of doubt to all three accused they were acquitted of the charge levelled against them and they were set at liberty.

Rashid Ali Khan and another v. The State 1992 PCr.LJ 1320; Sikandar v. The State PLD 1963 SC 17; Khalid Javed and another v. The State 2003 SCMR 1449; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Sultan v. The State 1972 PCr.LJ 435; Muhammad Mustafa v. The State 1992 ALD 362; Muhammad Irshad and another v. The State 1999 SCMR 1030; Jehangir Hayat v. The State PLD 1999 Lah. 285; Mushtaq Ahmad v. The State 1990 SCMR 405; Gulistan and others v. The State 1995 SCMR 1789 and State v. Bashir and others PLD 1997 SC 408 ref.

M. Zahoorul Haq for Appellant.

Muhammad Saeed Khan, A.A.-G. for the State.

Syed Zaffar Abbas Zaidi for the Complainant.

Date of hearing: 20th September, 2007.

PCrLJ 2008 PESHAWAR HIGH COURT 227 #

2008 P Cr. L J 227

[Northern Areas Court of Appeals]

Before Altaf Hussain and Syed Tahir Ali Shah, JJ

MUHAMMAD KARIM and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.13 of 2007, decided on 26th September, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.6 & 10---Penal Code (XLV of 1860), Ss.354 & 336-A/34---Juvenile Justice System Ordinance (XXII of 2000), S.10(7)---Post-arrest bail, refusal of---Delay of few hours in lodging F.I.R. had been explained---Besides the victim/complainant and her daughter-in-law who were the eye-witness of the occurrence had specifically charged the accused for committing Zina-bil-Jabr with the victim and their third accused had facilitated in the commission of the offence---No previous enmity or grudge existed between the parties to make false allegations which would stigmatize the honour of the whole family---Medical report regarding the absence of any sign of violence on the private parts of victim was a matter requiring deeper scrutiny, which was not advisable for grant or refusal of bail, when only tentative assessment could be made---For the grant of bail in heinous offences minority of the victim could be one of the considerations, but not the sole consideration---Each case had to be examined in the light of its own facts---Under the proviso to S.10(7) Juvenile Justice System Ordinance, 2000 bail could be denied to a child of the age of 15 years or above if such child was involved in an offence which was serious, heinous, gruesome, brutal, sensational in character or shocking to public morality or he was a previous convict of an offence punishable with death or imprisonment for life---Age of accused persons was yet to be determined by the Trial Court---Offence with which accused were charged, were serious, heinous and shocking to public morality---Accused, in circumstances did not deserve the concession of post arrest bail.

1996 PCr.LJ 166; 2006 PCr.LJ 1039; 2006 SCMR 806; 2002 PCr.LJ 1163; 1989 PCr.LJ 1941; 1997 PCr.LJ 1635; 1998 SCMR 1528; 2006 PCr.LJ 1809 and 2006 SCMR 1805 ref.

Syed Jaffar Shah for Petitioners.

A.-G. for the State.

PCrLJ 2008 PESHAWAR HIGH COURT 244 #

2008 P Cr. L J 244

[Northern Areas Court of Appeals]

Before Altaf Hussain and Syed Tahir Ali Shah, JJ

Syed MAQBOOL SHAH----Petitioner

Versus

FARDOON KHAN and 5 others----Respondents

Criminal Miscellaneous No.8 of 2007, decided on 7th November, 2007.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.427, 447 & 147---Quashing of order---Police after due investigation of the case submitted challan of the case in the court of Magistrate Ist Class who taking cognizance of the offences issued notices to accused for appearance in the court---Subsequently the police filed application before the Trial Court seeking withdrawal of the challan for reinvestigation and Magistrate returned the challan to the police---Complainant challenged said order before the Chief Court under S.561-A, Cr.P.C.---During pendency of said petition, the police submitted another application before the Trial Court for cancellation of the case---Magistrate recorded the word "agreed" on the back of application submitted by the police before the Magistrate---Contention of complainant was that after taking cognizance of the case, the Trial Court was not legally authorized to return the challan of the case to the police for reinvestigation---Validity---Once the court would take cognizance of the offence, it would become the duty of the Court to proceed according to law---If the court considered that the charge was groundless or there was no possibility of accused being convicted of any offence, court could acquit accused even before framing of a charge---Trial Court, while agreeing with the second police report for cancellation of the-case, had not advanced any reason---Trial Court had to record his reasons for agreeing with the police report for cancellation of the case---Petition was converted into appeal by the Court of Appeals and order passed by the Magistrate whereby he permitted the Investigating Officer to withdraw the challan and subsequently cancelled the case, were declared to be of no legal effect---Impugned judgment/order of the Chief Court was also set aside---Original challan of the case would be deemed to be pending before the Trial Court which would proceed according to law.

Malik Haq Nawaz for Petitioner.

Syed Jaffar Shah for Respondents.

Advocate-General for the State.

PCrLJ 2008 PESHAWAR HIGH COURT 348 #

2008 P Cr. L J 348

[Peshawar]

Before Muhammad Raza Khan, J

SHAUKAT HAYAT and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous Bail Petition No.855 of 2007, decided on 27th August, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 8 & 9---Bail, grant of---Further inquiry---Accused was driving the truck when it was intercepted and allegedly huge quantity of more than 200 kilograms of narcotics was recovered from the secret cavities of the truck---Co-accused was stated to be the cleaner of the vehicle---Accused being the driver of the truck having the exclusive control of the vehicle, certainly had the knowledge of the material placed inside the secret cavities thereof to be ultimately delivered to the recipient---Role of co-accused was a bit distinguishable as he did not have to look after the passengers, but by cleaning the vehicle, he certainly would come across the secret cavities of the truck and thus, would have knowledge of the contents therein---Investigating Agency, however had failed to collect evidence with regard to the role of co-accused---Role of accused, in circumstances, was established on the tentative assessment of the record, but the role of co-accused needed further inquiry, particularly with regard to control over the recovered material or the conscious knowledge about the presence of such material in the secret cavities---Plea for bail on behalf of accused was declined, whereas the request of co-accused was allowed---Co-accused could be released on bail.

Noor Alam Khan for Petitioners.

Salahuddin Khan, D.A.-G. for the State.

Date of hearing: 27th August, 2007.

PCrLJ 2008 PESHAWAR HIGH COURT 354 #

2008 P Cr. L J 354

[Peshawar]

Before Shah Jehan Khan, J

SHAMSUR REHMAN alias SHAMSAY----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous Bail Application No.1084 of 2007, decided on 12th October; 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---Alleged recovery of the contraband Charas was effected from a vehicle in the broad daylight, but accused, who was stated to be dealing in narcotics fled away seeing the police party---Recovery was not effected from the immediate possession of accused and allegation against him was not supported through an independent evidence---Accused though was allegedly seated on the front seat of the vehicle, but as to who was driving the vehicle was not clear from the contents of the F.I.R. and if some one else was seated on the driver seat, why he was not taken into custody---Case of accused, in circumstances was that of further inquiry---Bail was allowed to accused, in circumstances.

Noor Alam Khan for Petitioner.

Obaidullah Anwar, A.A.-G. for the State.

Date of hearing: 12th October, 2007.

PCrLJ 2008 PESHAWAR HIGH COURT 361 #

2008 P Cr. L J 361

[Peshawar]

Before Shah Jehan Khan, J

SARTAJ----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous Bail Petition No.721 of 2007, decided on 19th September, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.4-Bail, grant of---Further inquiry---From the person of accused while escaping through stairs of his house, a plastic bag containing one kilogram 'Garda Charas' and 3 slabs weighing three kilograms 'Pukhta Charas' were recovered out of which 5/5 grams were separated for analysis through Forensic Science Laboratory and sealed into four different parcels and the remaining stuff was separately sealed---Samples were allegedly sent to Forensic Science Laboratory 6 days after recovery of contraband---Laboratory had reported that all the four parcels of samples separated from the whole contraband Charas, contained Charas and none of the parcels was found containing Charas Garda---Report of Laboratory was seriously doubtful as to whether the parcel sent to Laboratory was, in fact, the sample of alleged contraband material recovered from the person of accused or those parcels were regarding some other material lying in Police Station which made the case of accused one of further inquiry under subsection (2) of S.497 Cr.P.C. entitling hint to concession of bail---Accused was released on bail, in circumstances.

Noor Alam Khan for Petitioner.

Obaidullah Anwar, A.A.-G. for the State.

Date of hearing; 17th September, 2007.

2008 P Cr. L J 791

[Peshawar]

Before Muhammad Alam Khan, J

AMAN ULLAH KHAN and another----Petitioners

Versus

THE STATE and another----Respondents

Criminal Miscellaneous Bail Petition No.280 of 2007, decided on 10th March, 2008.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Bail, grant of---Further inquiry---Two cross versions were of the occurrence and it was yet to be determined as to which of the parties was the aggressor and which one was aggressed upon---Accused persons, in view of cross cases, were entitled to the concession of bail---All co-accused had been released on bail, especially one who was found innocent by the police and was released on executing a personal bond---Role attributed to said co-accused and that of accused persons, was one and the same---Accused persons, on principle of consistency, were entitled to the concession of bail---One of accused persons was serving in Frontier Constabulary, and as per certificate of the Commandant Frontier Constabulary on the day of occurrence, said accused was performing his duties at South Waziristan---Other accused was serving in Police Department and no apprehension existed of his absconsion, which had made the case one of further inquiry and accused persons were entitled to the concession of bail---Both accused were released on bail, in circumstances.

Muhammad Aslam and another v. The State through Advocate-General, Punjab and another 1997 SCMR 251; Nazar Jan v. The State and others 1999 YLR 1471; Muhammad Fazal alias Bodi v. The State . 1979 SCMR 9 and Wali Muhammad v. The State 1996 PCr. LJ 835 ref.

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

----S. 497---Bail application---Principle of propriety---Principle of propriety demanded that when a bail application was disposed of by one Judge, successive bail application or similar bail applications in the same F.I.R., should be heard and decided by the same Judge in order to avoid conflicting orders/judgments.

The State through Advocate-General, N.-W.F.P. v. Zubair and 4 others PLD 1986 SC 173 ref.

Muhammad Nawaz father of Petitioners present.

Tariq Aziz Khan Baloch, D.A.-G. for the State.

Nemo for the Complainant.

Date of hearing: 15th February, 2008.

PCrLJ 2008 PESHAWAR HIGH COURT 819 #

2008 P Cr. L J 819

[Peshawar]

Before Muhammad Alam Khan, J

MUHAMMAD NAWAZ----Petitioner

Versus

BAIT ULLAH and another----Respondents

Criminal Miscellaneous Bail Cancellation No.154 of 2007, decided on 10th March, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.324---Cancellation of bail, petition for---Trial Court while granting bail to accused had taken into consideration the fact that injury on the person of the complainant was simple in nature; and that there were two contradictory versions of occurrence as stated by three persons in their affidavits in which different versions of the occurrence had been given, which had made the case of accused one of further inquiry---Once the concession of bail was extended to accused, strong and exceptional ground had to be made out for cancellation of his bail, because considerations for the grant of bail and those for the cancellation of bail were different---Section 497(5) Cr.P.C. did not command the court to cancel the bail even if the offence was punishable with death, transportation or imprisonment for ten years---No force existing in bail cancellation petition, same was dismissed.

Muzaffar Iqbal v. Muhammad Imran Aziz and others 2004 SCMR 231 and Tariq Bashir and 3 others v. The State PLD 1995 SC 34 ref.

Allah Dad brother-in-law of Petitioner (present).

Tariq Aziz Baloch, D.A.-G. for the State.

Respondent in person.

Date of hearing: 15th February, 2008.

PCrLJ 2008 PESHAWAR HIGH COURT 848 #

2008 P Cr. L J 848

[Peshawar]

Before Muhammad Alam Khan, J

ZIA----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.40 of 2008, decided on 3rd March, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324/34---Bail, refusal of---Occurrence was a daylight occurrence in which father of the complainant was stabbed by accused---Motive of the offence had been mentioned in the F.I.R. which had been duly witnessed by the two independent witnesses---Being a stab case and a daylight occurrence, no chance of misidentification existed---Medical report with respect to the injury, was on the file and the injury inflicted was on the vital part of the body---Reasonable grounds existed to believe that accused was, prima facie, guilty of the commission of the offence---Bail application filed by accused, was dismissed, in circumstances.

Umar Ali Clerk to Barrister Masood Kausar for Petitioner.

Fawad Qasim D.A.-G. for the State.

Complainant present in person.

Date of hearing: 3rd March, 2008.

PCrLJ 2008 PESHAWAR HIGH COURT 906 #

2008 P Cr. L J 906

[Peshawar]

Before Muhammad Alam Khan, J

HIKMAT----Applicant

Versus

THE STATE----Respondent

Criminal Miscellaneous Bail Application No.1355 of 2007, decided on 3rd March, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Penal Code (XLV of 1860), Ss.419, 420, 468 & 471---.Passports Act (XX of 1974), S.6--- National Database and Registration Authority Ordinance (VIII of 2000), Ss.30 & 31---Bail, refusal of---Accused was found carrying the capsules full of heroin which was duly recovered from his stomach after X-Ray Examination by a doctor---On weighing same was found 620 grams---Accused had been held up on international departure of the Airport and he was bound to smuggle it to a foreign country---Accused had also disclosed his fake name and he was also travelling on fake and forged documents---Reasonable grounds, in circumstances, existed to believe that he was guilty of offence which was hit by the embargo contained under S.497 Cr.P.C.

Iftikhar Dogar v. The State 2005 PCr.LJ 1624 rel.

Mir Nawaz Clerk to Shamsul Haq for Applicant.

Salahud Din, Dy. A.-G for the State.

Date of hearing: 3rd March, 2008.

PCrLJ 2008 PESHAWAR HIGH COURT 910 #

2008 P Cr. L J 910

[Peshawar]

Before Muhammad Raza Khan, C. J. and Syed Yahya Zahid Gillani, J

FARHAD SAJID----Petitioner

Versus

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

Writ Petition No.64 of 2008, decided on 13th March, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---National Accountability Ordinance (XVIII of 1999), Ss.9 & 10---Bail, grant of---Further inquiry---Allegation against accused that he being Forest Range Officer, was involved in ruthless illegal cutting of trees in the Government Reserve Green Forest, which was within his controlling jurisdiction---Whole government loss calculated in the reference was Rs.7.114 million and liability had been fixed against as many as nine persons, out of whom three had made good the loss attributed to them through plea bargain---Accused though had been individually attributed the loss calculated as Rs.6.728 million, but that calculation appeared overlapping, when liability of each accused was taken in account, in juxtaposition; in that state of affairs, if charge was proved against accused, his ultimate sentence would have to commensurate proportionately with the quantum of actual loss yet to be established against accused---Trial Court, for that purpose, had to meticulously calculate and weigh his liability on judicious scale---At least, on the point of actual losses attributed to accused, his case needed further inquiry---Keeping in view the total loss and large number of accused, imposition of maximum sentence of imprisonment was not viable---Such was a tentative assessment only for the purpose of bail and would never affect the merits of the case and mind of the court at the time of final pronouncement; it was appropriate to enlarge accused on bail, in the peculiar facts and circumstances of the case mainly on the ground of expected prolonged trial period---Due to limited liability fixed against accused, no likelihood appeared of his going into hiding and that bail could not be withheld as punishment---Accused was released on bail, in circumstances.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Abdul Aziz Khan Niazi v. The State PLD 2003 SC 668; National Accountability Bureau v. Khalid Masood and others 2005 SCMR 1291; Akhtar Hussain Ansari v. The State 2003 PCr.LJ 473; 2000 MLD 191; 2003 MLD 1637; PLD 1972 SC 81; PLD 1968 SC 349 and 2000 MLD 111 rel.

Riaz Ahmad Khan for Petitioner.

Mian Fasih-ul-Mulk, Dy. P.-G. for the State.

Date of hearing: 13th March, 2008.

PCrLJ 2008 PESHAWAR HIGH COURT 964 #

2008 P Cr. L J 964

[Peshawar]

Before Muhammad Alam Khan, J

MUSHTAQ AHMAD----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.27 of 2008, decided on 4th March, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of---Accused and his female co-accused were held up by the Anti-Narcotic Force Police at the same time and almost equal quantity of Charas was recovered from them---Co-accused had already been released on bail and the quantity recovered was not hit by the embargo contained in S.497 Cr.P.C.---Investigation in the case was complete and the challan had been put in court---Presence of accused or keeping him behind the bars would not help the prosecution---Accused was admitted to bail, in circumstances.

Peer Bakhsh Mehtab for Petitioner.

Salahuddin, Dy. A.-G. for the State.

Date of hearing: 3rd March, 2008.

PCrLJ 2008 PESHAWAR HIGH COURT 1010 #

2008 P Cr. L J 1010

[Peshawar]

Before Syed Yahya Zahid Gillani, J

ABDUL HAMEED----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.1430 of 2007, decided on 2nd May, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.419, 420, 468 & 471---Prevention of Corruption Act (II of 1947), S.5(2)---Bail, refusal of---Plea of accused was that since co-accused had been released on bail, he was also entitled to be released on bail on the ground of principle of consistency---Validity---Principle of consistency was not attracted in the case of accused as he had played pivotal role in the event---Accused was beneficiary of alleged fraud involving huge amount and valuable property---Accused had also a background of involvement in another similar case---Other plea of accused was that offences against him being punishable up to seven years' imprisonment, his case was not hit by the prohibitory clause of S.497 Cr.P.C.---No doubt such was a general rule, but was subject to exception---Where allegation of repeated commission of same offences, directly affecting the society had been made, person involved could lose his right of bail based on general principles---Such was to safeguard the public from his deceitful designs---Prima facie case having been established, discretion could not be exercised in favour of accused in enlarging him on bail.

Tanweer Ahmad Haral v. The State 2002 SCMR 1327 and Mehrban Ali v. The State and another 2004 SCMR 229 ref.

Jamroz Khan Afridi for Petitioner.

Saadat-ur-Rehman for the State.

Date of hearing: 30th April, 2008.

PCrLJ 2008 PESHAWAR HIGH COURT 1017 #

2008 P Cr. L J 1017

[Peshawar]

Before Syed Yahya Zahid Gillani, FAYAZ KHAN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.268 of 2008, decided on 25th April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Bail, refusal of---Nineteen capsules containing 130 grains heroin, put in the bottle of shampoo, placed in the bag of accused were recovered at Airport when he was going to fly abroad---Accused disclosed swallowing some capsules containing heroin during interrogation---Accused, in the peculiar facts and circumstances of the case, was attempting to smuggle heroin abroad through highly deceitful means putting at risk his own life and his nation's dignity---Such could be an exceptional circumstance to decline accused bail---Accused had already been called to face trial by the Trial Court---Accused was not entitled to bail, in circumstances.

2007 PCr.LJ 1019 and 2006 SCMR 1265 rel.

Miss Farhana Marwat for Petitioner.

Salahuddin Khan D.A.-G. for the State.

PCrLJ 2008 PESHAWAR HIGH COURT 1356 #

2008 P Cr. L J 1356

[Peshawar]

Before Muhammad Alam Khan, J

GHULAM QASIM and another----Petitioners

Versus

THE STATE and another----Respondents

Criminal Miscellaneous Bail Petition No.90 of 2008, decided on 18th June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Further inquiry---Complainant, in his first report had neither nominated any one for committing the crime nor any motive was given---Complainant had only heard from the mouth of co-accused that two deceased were murdered by some unknown persons in the dark hours of the night---Complainant remained silent for one month and eight days of the occurrence and thereafter he charged accused for commission of the offence and neither disclosed the source of information through which he had come to know about their involvement in the crime, nor any reason was given as to why he had remained mum for such a long period; nor had attributed them any motive for the offence, besides that none of the two accused had been assigned any specific role in the occurrence---Was yet to be seen at trial when pro and contra evidence would come on record whether accused were reasonably linked with the commission of' the offence---Case of accused fell within the ambit of further inquiry, which entitled them to the concession of bail.

Abdul Latif Khan Baloch for Petitioner.

Sanaullah Shamim Gandapur, D.A.-G. for the State.

Muhammad Ilyas Khan Marwat for the Complainant.

Date of hearing: 18th June, 2008.

PCrLJ 2008 PESHAWAR HIGH COURT 1371 #

2008 P Cr. L J 1371

[Peshawar]

Before Muhammad Alam Khan, J

GHULAM QASIM----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous Bail Petition No.56 of 2008, decided on 22nd April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302 & 324/34---Bail, grant of---Further inquiry---Accused though was directly nominated in F.I.R., for ineffective firing but no empty had been recovered from the point assigned to accused in the site plan---Prima facie, case of accused fell within the ambit of further inquiry entitling him to the concession of bail---Accused was released on bail, in circumstances.

Faraz Akram v. The State 1999 SCMR 1360; Muhammad v. The State 1998 SCMR 454; Muhammad Shafique v. Said Rehman and 2 others PLJ 1995 (Criminal Case) Peshawar 125; Shaukat v. The State 1996 PCr.LJ 986; Atta Muhammad and others v. The State NLR 1997 (Criminal) 417; PLD 1996 Lah. 126; Muhammad Sarwar and others v. The State 1998 SD 32; Suleman Khan and others v. Buner Khan and others 2003 YLR 181 and Ahmed Hussain alias A.M.I. and others v. The State and others PLD 2008 SC 110 ref.

Muhammad Karim Anjum Qasuria for Petitioner.

Sanaullah Shamim Gandapur, D.A.-G. for the State.

Muhammad Yousaf Khan for the Complainant.

Date of hearing: 22nd April, 2008.

PCrLJ 2008 PESHAWAR HIGH COURT 1389 #

2008 P Cr. L J 1389

[Peshawar]

Before Muhammad Alam Khan, J

UMAR KHITAAB----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous Bail Petition No.74 of 2008, decided on 17th June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302 & 452/34---Bail, refusal of---Complainant, though had not seen accused with her own eyes while firing at the deceased, but she had witnessed accused and his co-accused running away from the house duly armed---Accusation was also supported by the statement of prosecution witness recorded under S.161, Cr.P.C. who had stated that she was present in the courtyard of her house when three accused persons armed with weapons entered the house and she ran inside the room whereafter firing was made in the courtyard and then all of them ran away from the house; and when she came out from the room deceased was lying murdered---Version of the prosecution further got support from the medical examination of the deceased according to which the death of the deceased had occurred due to injuries with fire-arms---Tentative assessment of the said facts and circumstances of the case reasonably linked accused with an offence which fell within the prohibitory clause of S.497, Cr.P.C. disentitling him to the concession of bail---Bail was declined.

Mazhar Mehmood v. The State 1997 SCMR 915; Manzoor and 4 others v. The State PLD 1972 SC 134; Muhammad Anwar v. The State NLR 1999 Criminal 704; Muhammad Saleem v. The State and another 2003 MLD 145 and Dost Muhammad v. The State 2005 MLD 1085 ref.

Gauhar Zaman Kundi for Petitioner.

Sanaullah Shamim Gandapur, D.A.-G. for the State.

Complainant in person.

Date of hearing: 9th June, 2008.

PCrLJ 2008 PESHAWAR HIGH COURT 1404 #

2008 P Cr. L J 1404

[Peshawar]

Before Muhammad Alam Khan, J

RAHMAT ULLAH---Applicant

Versus

THE STATE and 3 others---Respondents

Criminal Miscellaneous Bail Application No.89 of 2008, decided on 12th June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/34---Bail, refusal of---Neither eye-witness of the occurrence, nor the brother of the deceased had furnished an ocular account thereof, but in his statement recorded under S.161, Cr.P.C. before the police on the day of occurrence, he had directly and singularly charged accused for committing murder of the deceased; and subsequently too, before the Court, in his statement recorded under S.164, Cr.P.C., wherein he had affirmed his accusation---Besides the recovery of weapon of offence on pointation of accused, a mobile phone, purse and a diary were also recovered from him---Narration of accused in the F.I.R. seemed to be totally artificial while the assertion of brother of deceased, supported by prosecution witnesses, seemed to be natural---Tentative assessment of all said facts, prima facie connected accused with the commission of the crime, which had disentitled him to the concession of bail.

Muhammad Amin alias Irfan and another v. the Sate 2004 SCMR 1560 rel.

Abdur Rehman Khan for Petitioner.

Farooq Akhtar for Respondents.

Muhammad Zahid Khan for Respondents Nos.2 to 4.

Date of hearing: 2nd June, 2008.

PCrLJ 2008 PESHAWAR HIGH COURT 1419 #

2008 P Cr. L J 1419

[Peshawar]

Before Muhammad Alam Khan, J

FAROOQ SHAH---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Miscellaneous Bail Petition No.52 of 2008, decided on 21st April, 2008.

Criminal Procedure Code (V of 1898)---

---S. 497(2)---Penal Code (XLV of 1860), Ss.302 & 324/34---Bail, grant of---Further inquiry---Complainant had sworn an affidavit wherein he had stated that he did not oppose the grant of bail to accused on the ground that he had not identified anyone committing the offence, though he himself was injured therein---Effect---Accused was ' not named by the complainant in the F.I.R. wherein he himself was injured and the accusation levelled against him by brother. of deceased, was after nineteen days of the occurrence---Co-accused, who had been assigned identical role, had already been released on bail---Principle of consistency, in circumstances, was fully attracted in the case---No recovery had been made from the place of occurrence and it was not an absolute rule that an absconder should, under no circumstances, be admitted to bail, though abscondence would constitute a relevant factor when examining question of bail---Prima facie available facts and circumstances of the case had brought the case of accused within the ambit of further inquiry entitling him to the concession of bail---Accused was admitted to bail, in circumstances.

Muhammad Sultan and others v. The State 2007 YLR 228; Abdul Salam v. The State 1980 SCMR 142; Sher Zaman alias Alamsher v. The State 1992 PCr.LJ 409; Abdus Sattar and others v. The State 1982 SCMR 909; Rajada v. The State 2005 PCr.LJ 570; Daterdino and 3 others v. The State 2005 PCr.LJ 572; Ahmad Jamal v. The State PLD 1996 Lah. 261; 2004 MLD 221; State v. Malik Mukhtiar Ahmed Awan 1991 SCMR 322; Shah Jehan v. Imtiaz alias Parache and another 1993 PCr.LJ 683; Bashir Khan v. State through Advocate-General N.-W.F.P. Peshawar PLD 2005 Pesh. 98 and Saifullah v. The State 2003 PCr.LJ 1691 rel.

1991 SCMR 322 rel.

Gohar Zaman Kundi for Petitioner.

Farooq Akhtar for Respondent.

Rab Nawaz for Respondent No.2.

Date of hearing: 21st April, 2008.

2008 P Cr. L J 1537

[Peshawar]

Before Muhammad Alam Khan, J

DISTRICT POPULATION WELFARE OFFICER, DERA ISMAIL KHAN----Petitioner

Versus

THE STATE----Respondent

Criminal Revision No.17 of 2008, decided on 30th June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 522-A---Penal Code (XLV of 1860), Ss.302 & 404/34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Confiscation of stolen amount---Application for return of case property---Accused who committed offences of theft and murder were convicted and sentenced and amount recovered from accused was confiscated in favour of State and Trial Court refused to return said recovered/confiscated amount to petitioner, who was officer of the office from where amount was stolen by accused---Fact was that theft was committed in the office of the petitioner; as the case property was the salary of the staff members of the office of the petitioner, impugned order of the Trial Court whereby amount was refused to return, was not sustainable---Said order of the Trial Court, was set aside and confiscated money was ordered to be returned to the petitioner.

Inamullah Khan Yousafzai for Petitioner.

Farooq Akhter for the State.

Date of hearing: 30th June, 2008.

PCrLJ 2008 PESHAWAR HIGH COURT 1610 #

2008 P Cr. L J 1610

[Peshawar]

Before Muhammad Raza Khan, C.J.

MUBARAK DIN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.715 of 2008, decided on 18th July, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497 & 103---Control of Narcotic Substances Act (XXV of 1997), S.9---Bail, grant of---Argument with regard to the non-association of the private witnesses despite prior information, had no force, because S.103, Cr.P.C. had been excluded by Control of Narcotic Substances Act, 1997---Same principle would not be applicable even for the involvement of the informer because the people could furnish spy information, but could not dare to be cited as witnesses against drug traffickers---Arguments with regard to the initial action of raid, recovery and arrest by the A.S.I., would also not hold much weight, though it was desirable that the legally authorized officer should have conducted the raid on proper information---Presence of accused in front of alleged shop along with the contraband for the sale of narcotics to the potential client; non-mentioning of the shop in the site plan; rather the failure of .the Investigating Officer to prepare the site plan; and the failure to recover the sale proceeds and the scale and weight for the purpose of retail sale of Charas, were some of the major defects in the investigation process---F.I.R. contained an allegation that three slabs of Charas were recovered and sample of 5 grams for chemical analysis was obtained from each of the slab and a total of 15 grams comprising 3 samples were forwarded to Forensic Science Laboratory, whereas said Laboratory had received only 5 grams of narcotics comprising of 3 samples, which would mean that only 1 Kg. Charas had been recovered from the possession of accused---Gravity of the offence, in circumstances, was diluted, at least to the extent of tentative assessment at bail stage---Keeping in view the punishment likely to be imposed on accused, at the conclusion of trial, accused could be released on bail---Accused was admitted to bail, in circumstances.

Noor Alam Khan for Petitioner.

Malik Manzoor Hussain for the State.

Date of hearing: 18th July, 2008.

PCrLJ 2008 PESHAWAR HIGH COURT 1633 #

2008 P Cr. L J 1633

[Peshawar]

Before Ghulam Mohy-ud-Din Malik, J

ABDULLAH SHAH and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.65 and Criminal Revision No.20 of 2007, decided on 27th June, 2008.

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

----Ss. 13/13-A/13-B/14-Appreciation of evidence---Sentence, reduction in---Accused persons were found taking huge quantity of arms and ammunitions in the coaster---Trial Court found accused persons guilty of the charge and convicted them under S.13-A(2) of the West Pakistan Arms Ordinance, 1965 to seven years' R.I. each with a fine of Rs.20,000---Evidence led by the prosecution was good enough to hold that the alleged recovery of arms and ammunitions was effected from the vehicle possessed by accused persons---Accused were found and caught red-handed while travelling in the said vehicle---Secret cavity in the body of the vehicle (coaster) wherefrom the illicit arms and ammunitions were recovered, could be in their exclusive knowledge; and that was the reason that the recovery was made on their information and pointation---Witnesses were cross-examined at length, but nothing material was brought out to contradict them on the salient features of the case, such as date, time and place of arrest and recovery of arms and ammunitions---Two prosecution witnesses went together on the major points and the defence counsel could not point out any contradiction and inconsistency in their statements showing that they had made false or fabricated statements-Prosecution evidence was coherent and the witnesses remained absolutely consistent on salient features of the case---Manner of arrest, number of accused travelling in the vehicle, place of recovery, number of arms and ammunitions, remained the same at the trial as were disclosed in the F.I.R. and in the initial statements of the witnesses---Prosecution witnesses were found completely disinterested and not inimical towards accused---Evidence of prosecution witnesses, had been corroborated by each other and also by the fact of recovery of huge quantity of arms and ammunitions---Quantity of arms and ammunitions was so huge that there could be no possibility of fabrication and concoction--Normally, there could be suspicion as to false implication of accused by the police, in case of one or two rifles or a few rounds, but it was unbelievable in the case of recovery of such a costly, large number of arms and ammunitions of different types---Merely because that the witnesses of the recovery were police officials, they could not be disbelieved---Recovery was made from the secret place made in the floor of the vehicle, which fact suggested that it was made for concealment and transportation of illicit arms and ammunitions for sale and subversive activities---Such facts and circumstances of the case lead to hold that prosecution case against accused was free from reasonable doubt---Section 13-A of West Pakistan Arms Ordinance, 1965, which was introduced through Ordinance promulgated on 2-3-1997 having since been repealed/expired, said section was converted into S.13 of the Ordinance and period of imprisonment was reduced from seven to five years' R.I. with benefit of S.382-B, Cr.P.C.

1999 SCMR 1367 and 1998 PCr.LJ 40 ref.

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

----Ss. 516-A & 439---West Pakistan Arms Ordinance (XX of 1965), S.20---Superdari of vehicle---Revision petition---Application for superdari of vehicle submitted by the petitioner was rejected by Illaqa Judicial Magistrate and that order of rejection of application was not challenged by the petitioner before next higher forum---Petitioner also did not join the investigation or trial and did not prefer his claim before the Trial Court by producing documentary evidence as to his ownership and innocence---Overwhelming evidence was to believe that vehicle in question was used in transportation of huge quantity of arms and ammunitions which were concealed in the secret cavities/parts of the floor of the vehicle---That could not be made without the consent and involvement of the owner of vehicle---Petitioner kept mum over the matter for a sufficient long time and that conduct of petitioner, itself had shown that he had nexus with the crime---Petitioner could not produce any evidence about his innocence at the trial that he was not a party to the crime; nor that vehicle was used for transportation of illicit arms and ammunitions without his connivance and consent---Vehicle in question, in circumstances, had correctly and rightly been confiscated to the State being case property within the purview of S.20 of the West Pakistan Arms Ordinance, 1965.

----S. 13---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Search proceedings---Mere fact that witnesses were from Police Department, would not justify rejection of their testimony---Provisions of S.103, Cr.P.C. was mandatory in respect of search of a place particularly when it was conducted on prior information, but in case where the culprit would come across with the police all of a sudden during routine checking or mobile duty; in that particular eventuality the non-compliance of S.103, Cr.P.C. would not be fatal to the prosecution case---Main object of S.103, Cr.P.C. was to ensure that the search and recovery was conducted honestly and fairly, the possibility of concoction and transgression, was excluded---Said section 103, Cr.P.C. however would be applicable when search of a place or premises was conducted on prior information-Requirement of two independent witnesses to recovery was subject to exception of eventuality when the culprits would come across with the police by chance.

Abdul Fiaz Khan for Appellants.

D.A.-G. for the State.

Date of hearing: 27th June, 2008.

PCrLJ 2008 PESHAWAR HIGH COURT 1655 #

2008 P Cr. L J 1655

[Peshawar]

Before Zia-ud-Din Khattak and Syed Yahya Zahid Gilani, JJ

ALI ZAR----Appellant

Versus

SHAH KHALID and another----Respondents

Criminal Appeal No.505 of 2006, decided on 1st August, 2008.

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

----S. 302/34---Qanun-e-Shahadat (10 of 1984), Art.46---Appreciation of evidence---Dying declaration---Requirement---Prosecution case, primarily rested on the dying declaration of the deceased and the ocular account of the incident furnished by two prosecution witnesses---Statement of the deceased, when he was injured, in the form of an F.I.R., no doubt could be treated as a dying declaration, which, by itself, was a good enough under Art.46 of Qanun-e-Shahadat 1984 for sustaining the conviction on a capital charge---Deceased (then injured) was brought to the hospital after 3 hours of the incident in critical condition; it was, in the circumstances, duty of the police officer concerned to have obtained a certificate from the Doctor before recording statement of the injured that he was in a fit condition to give statement---Such certificate was not obtained, and no reasonable explanation for that omission was given by the concerned police official---Fitness of the injured to make the statement, remained doubtful, in circumstances---Two prosecution witnesses, did not fully support the prosecution case as their evidence suffered from glaring contradictions, adversely reflecting upon the genuineness/veracity of the dying declaration---Site plan drawn up by the Investigating Officer at the instance and pointation of prosecution witness, was also belying the dying declaration---Accused though remained absconded for a long time for about 3 years but said abscondence alone could not be a substitute for real evidence---Abscondence would be taken as corroborative piece of evidence only when there was convincing and unchallenged evidence led by the prosecution which was lacking in the case---Conviction and sentences recorded against accused by the Trial Court by impugned judgment, were set aside, in circumstances and he was acquitted of the charge and was set free.

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

----S. 302/34---Qanun-e-Shahadat (10 of 1984), Art.46---Appreciation of evidence---Dying declaration of deceased and abscondence of accused---Impact---Statement of deceased when injured in the form of F.I.R., no doubt could be treated as a dying declaration which, by itself, was a good enough under Art.46 of Qanun-e-Shahadat, 1984 for sustaining the conviction on a capital charge, but it was the duty of the police official concerned to have obtained a certificate from the Doctor before recording statement of injured that he was in a fit condition to give statement---Abscondence of accused would be taken as corroborative piece of evidence only when there was convincing and unchallenged evidence led by the prosecution.

PLD 1990 SC 201 rel.

Khawaja Muhammad Khan Garah for Appellant.

Aminur Rehman for the State.

Abdul Fayaz Khan for the Complainant.

Date of hearing: 21st May, 2008.

JUDGEMENT

ZIA-UD-DIN KHATTAK, J.--- On November 28, 2001, at 9 a.m. Badshah Khalid deceased was going from his house (situate in village Kass) to village Daman Shalga. When reached "Path Kass" Ali Zar, Shah Namroz and Nasibzada who were present there duly armed fired at him who in consequence was hit on the front of chest and got injured. The motive was a dispute over, payment of money. The incident was witnessed by his brother Shah Khalid and cousin Fateh Bar Khan.

After being taken to R.H.C. Wari he reported the incident to Fazal Qadir I.H.C. No.308 and pursuant thereto a case was registered against Ali Zar (appellant herein) along with co-absconding accused Shah Namroz etc. under section 324/34, P.P.C. vide F.I.R. No.305 dated 28-11-2001 Police Station, Wari, District Upper Dir. When later on the deceased then injured succumbed to his injuries, the section of law was changed to section 302/34, P.P.C.
As the appellant along with co-accused became fugitive from law, the Investigating Officer after completing necessary investigation and initiating the requisite proceeding for declaring him as Proclaimed Offender sent the case to the learned Sessions Judge/Zilla Qazi Upper Dir for proceedings under section 512, Cr.P.C. which were accordingly done vide order dated 26-9-2002.
After the arrest of appellant on 28-1-2004 he was sent to the Court of learned Additional Sessions Judge/Izafi Zilla Qazi Wari Dir Bala for trial who believing the dying declaration of the deceased and the ocular testimony of his brother Shah Khalid and cousin Fateh Bar Khan P.Ws and the factum of abscondence of the appellant found the latter guilty under section 302(b), P.P.C. and sentenced him to imprisonment for life and directed him to pay a compensation of rupees One hundred thousand to the legal heirs of the deceased under section 544-A, Cr.P.C. or in default to undergo six months' S.I. vide his judgment dated 26-7-2006.
Ali Zar, appellant to challenge his conviction and sentence filed the instant appeal. His counsel Khawaja Muhammad Khan Garah, Advocate assailed the impugned judgment on a variety of grounds and submitted that the learned trial Court has not properly appreciated the evidence on record and thus arrived at a wrong conclusion while convicting the appellant. He contended that the occurrence had not taken place in the manner described by the prosecution as according to the report made by the deceased which later on became a dying declaration, three persons had allegedly resorted to firing but not a single empty was recovered from the spot, that the alleged dying declaration made by the deceased is a fabricated document, for there is no evidence on record anywhere right from inception of the report till the conclusion of trial that the deceased (injured then) was in full senses and capable of making a report. Similarly he urged that the dying declaration was allegedly made in the Hospital, yet its scribe did not obtain fitness certificate from the doctor. The learned counsel by referring to the testimony of P.W.4 Fateh Bar Khan contended that he did not find mention in the report so his statement does not command credence. Lastly, he submitted that Shah Khalid and Fateh Bar Khan P.Ws. were not present at the spot and their claim of having seen the incident stand belied by a host of circumstances. That the motive has not been proved. That the medical evidence is in conflict with the ocular account of the incident and that the appellant did not abscond and even otherwise abscondence alone is not considered sufficient to base conviction of an accused person in absence of strong corroborative evidence and, therefore, the appellant deserved acquittal.
Conversely, the State counsel assisted by Mr. Fayyaz Khan, Advocate learned counsel for the complainant supported the impugned judgment of conviction and maintained that the prosecution has abundantly proved its case through evidence of high order and quality against the appellant, that the occurrence has been witnesses by two eye-witnesses and their testimony is supported by the medical evidence and other circumstantial evidence. While controverting the arguments of learned counsel for the appellant, with regard to the fitness or otherwise of the deceased, it was submitted that the deceased was in his senses and could talk when his statement was recorded by the police official and there is nothing on the record to suggest that the deceased was prompted by any outsider when making the statement. The learned counsel for the complainant argued that it is settled principle that the dying declaration is a very strong piece of evidence on which conviction can be based without any corroboration.
We have carefully considered the submissions of learned counsel for the parties and have gone through the record.
The prosecution case primarily rests on the dying declaration of the deceased and the ocular account of the incident furnished by P.Ws. Shah Khalid and Fateh Bar Khan. There can be no cavil with the proposition that the statement of the deceased in the form of an F.I.R. can be treated as a dying declaration which by itself is good enough under Article 46 of the Qanun-e-Shahadat Order, 1984 for sustaining the conviction on a capital charge. Question in the instant case, however, is whether the maker of the statement (Exh.P.A./1) was in a fit condition to make statement which he is said to have made. It is not denied that the deceased (then injured) was brought to the R.H.C. Wari after 3 hours of the incident at or about 12 noon on 28-11-2001 in critical condition which fact is borne out from the statement of Dr. Hafiz Nisar Ahmad (P.W.10). Medical report (Exh.P.W.10/1) shows a fire-arm entry wound on the sternum at a level parallel to sternal angle with corresponding exit wound on the left side of the chest just below the left shoulder joint. It was distorted in shape, large and open. In the supplementary medical report/death certificate (Exh.P.W.11/1) it is stated that the injured expired at 6 p.m. on 28-11-2001 at T.H.Q. Hospital Dargai due to fire-arm injury and massive bleeding. In the face of this medical evidence it was the duty of the police official concerned to have obtained a certificate from the doctor before recording statement of the injured that he was in a fit condition to give statement. Such certificate admittedly was not obtained and no reasonable explanation for this omission was given by the police official concerned. In the circumstances, fitness of the injured to make the statement (Exh.P.A./1) remains doubtful. It may also be pointed out that even the two witnesses namely Shah Khalid (P.W.3) and Fateh Bar Khan (P.W.4) did not fully support the prosecution case. Their evidence in fact suffers from glaring contradictions adversely reflecting upon the genuineness/veracity of the dying declaration. The site-plan (Exh.P.B) was drawn up by the Investigating Officer at the instance and pointation of Shah Khalid (P.W.3) according to which firing was made from a distance of 55-60 paces but the doctor (P.W.10) noticed blackening around the entry wound (which can be caused from close range firing), thus belying the dying declaration of Badshah Khalid deceased, (then injured).

PCrLJ 2008 PESHAWAR HIGH COURT 1672 #

2008 P Cr. L J 1672

[Peshawar]

Before Muhammad Raza Khan, CJ

Syed MUHAMMAD BAQAR HUSSAIN KAZMI----Petitioner

Versus

BILAL AZIZ and 2 others----Respondents

Criminal Miscellaneous No.206 of 2007, decided on 14th July, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 516-A & 561-A---Release of car on interim custody---Petitioner had sought release of car on interim custody on the ground that he was the owner thereof---Petitioner had stated that he had given the vehicle to respondent, the Manager of "Rent a Car" service, who handed over the same to the driver under a contract, but the driver was intercepted by the Police and huge quantity of Charas was recovered from beneath the driver's seat---Driver was arrested along with another person and the car in question was taken over by the Investigating agency as the case property---Petitioner had earlier prayed for the release of the car on Superdari', but the same was declined on the ground that petitioner did not have the relevant documents of ownership--Documents annexed by the petitioner with the present petition indicated that petitioner was the transferee of the vehicle vide purchase order---Petitioner entered into a contract with another person vide an agreement and agreement between respondent the Manager and the driver had also been placed on file---Contention of the petitioner about the ownership, lease between the petitioner and "Manager of Rent a car service" and the subsequent lease between Rent a Car service and driver was established---No rival claimant of said vehicle---Earlier application forSuperdari' of vehicle which was rejected, was not a hindrance, because by then the petitioner was not in possession of the documents which he had supplied in the present application---Earlier hurdle in the way of petitioner having been removed, retention of the vehicle at the Police Station could deteriorate its value---Petitioner, in circumstances, deserved to utilize his property, which was used for an offence by the driver without the consent or knowledge of the petitioner---Vehicle in question could be released to the petitioner on `Superdari' subject to furnishing surety bonds.

Noor Alam Khan for Petitioner.

Hafeezul Asad for the State.

Tahir Sarwar-Respondent in Person.

Date of hearing: 14th July, 2006.

Quetta High Court Balochistan

PCrLJ 2008 QUETTA HIGH COURT BALOCHISTAN 11 #

2008 P Cr. L J 11

[Quetta]

Before Amanullah Khan, C.J.

NAIK MUHAMMAD and 5 others----Petitioners

Versus

NASEEBULLAH and another----Respondents

Criminal Quashment Petition No.29 of 2006, decided on 19th September, 2007.

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

----Ss. 249-A & 200---Power of Magistrate to acquit accused-Scope---Application for acquittal under S.249-A, Cr.P.C. could be moved at any stage of proceedings, but such application had to be dealt with strictly on - merits in the light of relevant provisions of law---In the present case, during enquiry under S.200, Cr.P.C. some evidence had been produced which prima facie made out a case--- Case, in circumstances did not warrant filing of an application under S.249-A, Cr.P.C. being at a premature stage.

Bashir Ahmed v. Zafar-ul-Islam and others PLD 2004 SC 298 ref.

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

----Ss.561-A & 249-A---Inherent powers of the High Court---Scope---Powers under S.561-A, Cr.P.C., were to be exercised sparingly and in extraordinary circumstances--Such powers could not be utilized to divert the ordinary course of Criminal Procedure Code, 1898 and Ss.249-A & 561-A, Cr.P.C. were not meant to stifle the prosecution case so as to interrupt or divert course of criminal procedure, as laid down in the procedural statutes---Application under S.249-A, Cr.P.C., though could be filed at any stage, i.e., before or after recording of evidence, however while considering the feasibility of the application at any stage, the facts and circumstances of the prosecution case had to be kept in view.

----Ss. 200 & 249-A---Private complaint---Power of the Magistrate to acquit accused---Non-registration of F.I.R. by Sessions Judge, would not place a bar on filing of a private complaint and would not amount to acquittal of accused; as some evidence was available and application under S.249-A, Cr.P.C. was filed at premature stage---Application filed under S.249-A; Cr.P.C. was rightly rejected by the courts below as acceptance of such application would have amounted to throttling the prosecution case at the initial stage.

M. Zafar for Petitioners.

Abbas Ali Qazalbash for Respondent No.1.

Abdul Ahad for the State.

Date of hearing: 31st August, 2007.

Shariat Court Azad Kashmir

PCrLJ 2008 SHARIAT COURT AZAD KASHMIR 41 #

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PCrLJ 2008 SHARIAT COURT AZAD KASHMIR 247 #

2008 P Cr. L J 247

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

THE STATE----Appellant

Versus

MUHAMMAD RASHEED and another----Respondents

Reference No.53 of 2007, decided on 9th October, 2007.

Criminal Procedure Code (V of 1898)---

----Ss. 242 & 537--Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood) Act, 1985, S.18---Non-framing of charge---Effect---Framing of charge would mean commencement of the trial on an accused and without framing of charge, the recording of evidence and the other proceedings would be nullity in the eye of law---Section 242, Cr.P.C. was mandatory provision which provided that charge would be framed and the particulars of alleged offence had to be explained to accused to enable him to know about the charge against him which he would have to face during the trial to defend himself---Non-framing of the charge was not remediable under S.537, Cr.P.C.---In the present case after completion of the prosecution evidence, the. Trial Court had recorded the prosecution evidence without framing the formal charge---Validity---Departure from the mandatory provisions of procedure had occasioned prejudice and injustice to accused and such omission would not be curable under S.537, Cr.P.C.---Effect of non-compliance of S.242, Cr.P.C. was that the proceedings were nullity in the eye of law which had vitiated the whole proceedings---Proceedings of the case had become invalid which were quashed and it was directed that the Trial Court would frame the charge against accused as required by S.242, Cr.P.C. and proceed further in accordance with law.

Ibrar Hussain Shah and another v. the State PLD 1987 SC (AJ&K) 65 rel.

Raja Gul Majeed Khan, A.-G. for the State.

Nemo for Respondents.

PCrLJ 2008 SHARIAT COURT AZAD KASHMIR 306 #

2008 P Cr. L J 306

[Shariat Court (AJ&K)]

Before Sardar M. Ashraf Khan, J

JAFFAR HUSSAIN and another----Petitioners

Versus

THE STATE and others----Respondents

Criminal Miscellaneous No.(?) of 2007, decided on 17th May, 2007.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.302, 341 & 392---West Pakistan Arms Ordinance (XX of 1965), S.13---Suspension of sentence pending appeal---No one had been nominated as accused---Out of three prosecution witnesses, one had not been figured in the challan while second witness had been given up by the prosecution, and third one whose name transpired in the F.I.R., was not examined and his evidence was closed by the Trial Court---Three crime weapons were allegedly recovered from accused; out of those then one .30 bore pistol was sent to the Fire-arm Expert for verification, whereas rest of recovered weapons were not sent for verification---No specific role had been ascribed to accused persons and no evidence had been produced to that effect---Matter, in circumstances, was one which required further consideration---Applications for suspension of sentences were allowed and sentences awarded to accused were to remain under suspension till final adjudication of appeal.

Raja Imtiaz Ahmed and Abdul Aziz Ratalvi for Petitioners.

Addl. A.-G. for the State.

PCrLJ 2008 SHARIAT COURT AZAD KASHMIR 313 #

2008 P Cr. L J 313

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

MUHAMMAD HANIF and others----Appellants

Versus

THE STATE and another----Respondents

Criminal Appeals Nos.35 and 46 of 2005, decided on 16th May, 2007.

Penal Code (XLV of 1860)---

----Ss. 302 & 308---Appreciation of evidence---Motive for the occurrence was proved---Time and place of occurrence were not disputed---Weapon of offence also was not disputed which had been recovered from the house of accused at his instance---Prosecution witnesses were closely related to the deceased, but they were not inimical towards the accused---Prosecution evidence did not suffer from any improvements, contradictions or discrepancies and the same inspired confidence---Accused had committed the murders of his wife and daughter, while his two sons were his direct descendants---Offender could not be convicted under S.302, P.P.C. if he was found guilty of causing death of his child or grand-child or if any Wali of the victim was his direct descendant---Conviction of accused under S.302, P.P.C. was consequently altered to S.308, P.P.C. and he was sentenced to 14 years' R.I. and to pay Diyat calculated as Rs.15,31,500 to the legal heirs of the deceased as per their shares in accordance with law---Appeal was disposed of accordingly.

Ch. Balal Ali for Appellant.

Ch. Jahandad Khan for the Complainant.

Addl. A.-G. for the State.

PCrLJ 2008 SHARIAT COURT AZAD KASHMIR 327 #

2008 P Cr. L J 327

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

KABIR ALAM----Petitioner

Versus

THE STATE----Respondent

Criminal Revision Petition No.96 of 2005, decided on 7th July, 2007.

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

----Art. 150---Hostile witness---Questioning by party to his own witness---Essentials---Two conditions namely a hostile animus and the witness being not desirous of telling the truth, should weigh in the matter of allowing the prayer for cross-examining a witness cited by a particular party---Requirement is not that the witness must be suppressing the truth or not desirous of making a truthful statement, but as to whether he has made a statement which may adversely affect the party producing him---Not every statement of such a witness adversely affecting the party producing him which would entitle a party to cross-examine him but the substance of the parties respective cases and the effect of such statement thereon have to be considered by the Court before granting or refusing such permission---When a witness makes a statement adversely affecting the party producing him, it assumes greater importance and may be treated by the Court as an admission on the part of the party itself---If the said party is to be tried to the admissions made by such a witness and if ultimately, as often happens, the fate of his case is to hang upon his admissions, then in all fairness to him he should be permitted to put him questions in the nature of cross-examination so that he may get an opportunity of bringing on record any material on the basis of which he may persuade the Court not to rely upon evidence of such person.

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

----Ss. 302/440---Qanun-e-Shahadat (10 of 1984), Art.150---Criminal Procedure Code (V of 1898), S.439---Criminal revision---Prosecution witness had made a statement against the prosecution, which had been allowed to cross-examine the witness by the Court---During proceedings an affidavit executed by the witness was put to him which was admitted to be signed by him and the same, therefore, was brought on record---Party producing the witness in case of cross-examination could contradict the witness by bringing the relevant affidavit on the record---Contention that the said document could not be brought on record had no force---Trial Court in doing so had committed no illegality and passed the impugned order in accordance with law---Revision petition was dismissed accordingly.

Muhammad Azam Khan for Petitioner.

Addl. A.-G. for the State.

Ch. Ali Muhammad for the Complainant.

PCrLJ 2008 SHARIAT COURT AZAD KASHMIR 335 #

2008 P Cr. L J 335

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

BARKAT ALI----Appellant

Versus

THE STATE and another----Respondents

Criminal Appeals Nos.19, 22 and Criminal Reference No.18 of 2007, decided on 30th November, 2007.

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

----Ss. 302, 324 & 337-F(v)---Appreciation of evidence---Claim of prosecution regarding ownership and possession of disputed land was doubtful---Question whether the complainant party had come at the place of occurrence to remove the fence constructed by the accused party or to raise the fence, was shrouded in mystery---Accused by his first fire had failed to target the deceased, upon which the deceased tried to get close to the accused who made the second fire which hit the deceased at his head---Fire having been made from a close distance, possibility could not be ruled out that the accused might have fired the second shot under the apprehension that the deceased was intending to attack him---Accused was not required to produce evidence in support of his right of self-defence or defence of property, as the same could be established from the circumstances transpiring from the prosecution evidence---Consideration in such situation would be to assess the true effect of the prosecution evidence and not the question of the accused discharging any burden---Inference could be drawn from the established circumstances that a right of self-defence and defence of property was available to the accused---However, accused had exceeded the said right by targeting the deceased and causing injury to a prosecution witness with kalashnikovs---Sentence of "Qisas" awarded to accused was altered to imprisonment for life in circumstances.

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

----S. 417(2-A)---Penal Code (XLV of 1860), Ss.302/324/337-F(v)---Appeal against acquittal---Injured prosecution witness had not been produced in the Court to support the stone injury caused to her by the accused and so the said allegation was not proved---No evidence was available on record to establish the presence of accused at the place of occurrence at the relevant time---Accused, thus, had been rightly acquitted by the Trial Court---Appeal against acquittal was dismissed accordingly.

----S. 302---Appreciation of evidence---Right of self-defence or defence of property may be established even from prosecution evidence---Accused person taking right of self-defence or defence of property is not required to produce evidence in support of the same, as it can be established by referring the circumstances transpiring from the prosecution evidence---Consideration, in such situation would be to assess the true effect of the prosecution evidence and not the question of the accused discharging any burden.

Ch. Muhammad Taj for Appellant (in Criminal Appeal No.19 of 2007) and for Respondent (in Criminal Appeal No.22 of 2007).

Abdul Majeed Malick for the Complainant.

Asstt. A.-G. for the State.

PCrLJ 2008 SHARIAT COURT AZAD KASHMIR 345 #

2008 P Cr. L J 345

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

KHURSHID AHMAD and 2 others----Petitioners

Versus

THE STATE and another----Respondents

Criminal Revision Petition No.91 of 2006, decided on 30th November, 2007.

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

----Ss. 190 & 169---Cognizance of offences by Trial Court---Process can be issued to any accused person who appears to be connected with the offence---Finding of the Investigating Agency to place some accused persons in column No.2 of the challan by extending benefit of S.169, Cr.P.C. is not binding on the Courts---Trial Court is competent under the law to summon any accused to face the trial whose involvement in the case is shown by the prosecution evidence---Court even can take cognizance of an offence in the case where a report for cancellation is submitted by the police---Court while taking cognizance on a police report takes cognizance of the offence, but not of a particular person charged in the report as an offender---Trial Court, therefore, can issue process against other accused persons who also appear to it to be connected with the offence on the basis of the material placed before it.

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

----Ss. 324/337/147/148/149/447/109/506---Criminal Procedure Code (V of 1898), Ss.190, 169 & 439---Trial Court had summoned the accused to face the trial who, after having been extended benefit of S.169, Cr.P.C. by Investigating Agency, had been placed in column No.2 of the report filed under S.173, Cr.P.C.---Validity---Finding of the Investigating Agency to place some accused persons in column No.2 of the challan by extending benefit of S.169, Cr.P.C. was not binding on the Court---Trial Court was competent under the law to summon any accused, if the prosecution evidence had shown his involvement in the case---Court could take cognizance of an offence even in the case where a report for cancellation was submitted by the police---Trial Court, while taking cognizance on a police report, would take cognizance of the offence, but not of a particular person charged in the report as an offender---Prosecution witnesses had involved the present accused in the commission of the offence and in the light of their statements Trial Court had summoned the accused to face trial by giving very strong reasons---Impugned order did not suffer from any infirmity---Revision petition was dismissed accordingly.

Ch. Jahandad Khan for Petitioners.

Asstt. A.-G. for the State.

Sohail Qaiser for the Complainant.

PCrLJ 2008 SHARIAT COURT AZAD KASHMIR 351 #

2008 P Cr. L J 351

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

MUHAMMAD RAFIQUE and 4 others----Petitioners

Versus

THE STATE through Advocate-General----Respondent

Criminal Revision No.132 of 2007, decided on 10th December, 2007.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/34/147/148/149---Bail in offences under S.34, P.P.C. or 149, P.P.C.---Scope---Principles---Paramount consideration while deciding bail. applications in offences under S.34, P.P.C. or 149, P.P.C. should be to determine whether the accused was a member of an unlawful assembly and whether the offence had been committed in furtherance of common object---If the accused appeared to be knowing that the offence shall be committed in furtherance of common object of the unlawful assembly, then every member of the said assembly shall be responsible for the act committed by any one of them, and if the offence committed falls within the prohibitory clause of S.497, Cr.P.C., the bail shall be refused to each of them.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/34/147/148/149---Bail, refusal of---Accused had allegedly killed two persons, father and son, by firing---Post-mortem reports, of the deceased had supported the causing of fire-arm injuries---Contention that during investigation only two accused were found guilty of firing on the deceased persons had no force, because according to the report under S.173, Cr.P.C., another accused had, raised "Lalkara" telling others not to let the deceased go alive and still another accused was present at the place of occurrence armed with a gun---Presence of other accused persons at the spot armed with lethal weapons also was not denied and was established by eyewitnesses---Accused, prima facie, had waylaid, chased and killed the deceased and being members of unlawful assembly were not entitled to concession of bail---Bail was declined to accused in circumstances.

Sardar Abdul Hamid Khan for Petitioners.

Addl. A.-G. for the State.

Sardar Ishaq Baloch for the Complainant.

PCrLJ 2008 SHARIAT COURT AZAD KASHMIR 356 #

2008 P Cr. L J 356

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

MUHAMMAD ASLAM----Appellant

Versus

THE STATE and another----Respondents

Criminal Appeal No.21 and Criminal Revision No.20 of 2007, decided on 30th November, 2007.

Penal Code (XLV of 1860)---

----Ss. 302 & 341---West Pakistan Arms Ordinance (XX of 1965), S.13---Appreciation of evidence---Sentence, reduction in---No material showing any unpleasantness between the parties or indicating direct enmity between the accused and the deceased, was brought on record---Despite the fact that the deceased was fully conscious before his death, Police Officer had neither recorded his dying declaration nor recorded his statement under S.161, Cr.P.C.---Different version of the occurrence given by the deceased appeared to have been suppressed by the prosecution---Eye-witnesses had established the prosecution version---Crime-empties secured from the spot, according to Forensic Science Expert's report, had been fired from the weapons recovered at the instance of accused---However, deposition of eye-witnesses regarding the manner of occurrence was not consistent---Two eye-witnesses had failed to perceive the person who had caused fatal injury to the deceased---Conviction of accused under S.302, P.P.C. was maintained, but death sentence awarded to him thereunder was reduced to imprisonment for life in circumstances---Accused was acquitted of the charge under S.341, P.P.C., but his conviction under the Arms Ordinance was upheld---Appeal was disposed of accordingly.

Abdul Majeed Malick for Appellant.

Raja Mazhar Iqbal for the Complainant.

Asstt. A.-G. for the State.

PCrLJ 2008 SHARIAT COURT AZAD KASHMIR 363 #

2008 P Cr. L J 363

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

MUHAMMAD FAROOQ----Petitioner

Versus

Syed NISAR HUSSAIN SHAH and another----Respondents

Criminal Revision Petition No.64 of 2007, decided on 10th December, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Bail application---Expert opinion---Remand of case---Accused was stated to be of unsound mind and incapable of making his defence, and he was examined by a doctor who opined that he was suffering from schizophrenia---Trial Court feeling dissatisfied with the said report got constituted a Medical Board comprising of three doctors for examination of accused, but on the date fixed for examination two Members of the Board could not arrive and the accused was not examined---Trial Court had refused bail to accused on the ground that nothing was available on record in support of his claimed ailment---Expert opinion, thus, was necessary for disposed of bail application---Impugned order was consequently set aside and the case was remanded to Trial Court with the dissection to get the accused examined by Medical Board and to decide the matter afresh in the light of the medical opinion.

Sardar Mushtaq Hussain for Petitioner.

Addl. A.-G. for the State.

PCrLJ 2008 SHARIAT COURT AZAD KASHMIR 373 #

2008 P Cr. L J 373

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

SAJID NAZIR----Petitioner

Versus

THE STATE----Respondent

Criminal Revision Petition No.130 of 2007, decided on 10th December, 2007.

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

----S. 497---Bail, grant or refusal of---Principles---When a Court after considering the material such as F.I.R., statements of prosecution witnesses recorded under S.161, Cr.P.C., recoveries' etc., 'and defence plea if any, arrives at the conclusion that the matter requires further probe, it shall grant bail to the accused, and if a prima facie case appears to have been established against him, the bail shall be refused.

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

----S. 497(2)---Penal Code (XLV of 1860), S.302---Bail, grant of---Accused was not nominated at the time of the lodging of the F.I.R.---A prosecution witness in his statement recorded under S.161, Cr.P.C. had expressed his doubt regarding involvement of accused in the occurrence and nominated him as a suspect in the statement---Two contradictory Forensic Science Experts reports, one in the positive and the other in the negative, had been placed on the record regarding the firing of bullet recovered from the dead body of the deceased from the fire-arm recovered at the instance of the accused---Letters of the Deputy Inspector-General Police and Director Forensic Science Laboratory had disclosed that the said positive report was fabricated one---Guilt of accused, thus, needed further probe within the meaning of S.497(2), Cr.P.C.---Accused was admitted to bail in circumstances.

Ch. Muhammad Taj for the Petitioner.

Assistant Advocate-General for the State.

Muhammad Azam Khan for the Complainant.

PCrLJ 2008 SHARIAT COURT AZAD KASHMIR 445 #

2008 P Cr. L J 445

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

MUHAMMAD YOUSUF and 8 others----Petitioners

Versus

THE STATE and another----Respondents

Criminal Revision Petition No.40 of 2007, decided on 24th January, 2008.

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

---S. 561-A---Penal Code (XLV of 1860), Ss.302, 324, 147, 148 & 149---West Pakistan Arms Ordinance (XX of 1965), Ss.13, 14 & 14-A---Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), S.23(5)---Quashing of proceedings---Proceedings were sought to be quashed on the ground that offence punishable under S.13 or 14 of West Pakistan Arms Ordinance, 1965 was triable by a Magistrate of 1st Class under S.14-A of the Ordinance, though said offences had been committed in conjunction with an offence of murder---Accused contended that Trial Court having committed an illegality while proceeding with all the cases together, its proceedings were nullity in the eye of law which needed to be quashed and the cases registered under West Pakistan Arms Ordinance, 1965 were to be sent to the Magistrate of 1st Class for hearing and disposal---Validity---Trial Court in the case had consolidated all the three challans after framing the charges, but said order was not challenged by the petitioner before any forum within the prescribed period of limitation and it had attained finality---Even otherwise, submission of counsel for the petitioners was not tenable being misconceived and without any substance as under provisions of S.23(5) of Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act, 1974, if during an occurrence, an accused committed another offence which was not triable by that court, inspite of that the Trial Court was empowered to hear and dispose of the case in all the offences mentioned in the challan---District Criminal Court was fully empowered to hear and dispose of the case in accordance with law---Trial Court, in circumstances had not committed any illegality which could be made basis for the quashing of the proceedings.

PLD 1973 (Note) 137; PLD 1989 Pesh. 162; 1990 PCr.LJ 449; 1991 PCr.LJ 1558 and 1993 PCr.LJ 474 rel.

(b) Interpretation of statutes---

----Special Act would oust the jurisdiction of general law and law whenever special law would prescribe certain situation, the particular and procedure had to be followed and the provisions of general law had to be ignored.

Azad Government and 3 others v. Genuine Rights Commission AJ&K and 7 others 1999 MLD 268 rel.

Mirza Muhammad Nisar for Petitioners.

Malik Muhammad Saleem for Respondent No.2.

Riaz Naveed Butt, Addl. A.-G. for the State.

PCrLJ 2008 SHARIAT COURT AZAD KASHMIR 596 #

2008 P Cr. L J 596

[Shariat Court (AJ&K)]

Before Sardar M. Ashraf Khan, J

MUHAMMAD AJMAL and others----Appellants

Versus

MUHAMMAD JAVED and others----Respondents

Criminal Appeals Nos.19 and 22 of 2006, decided on 24th January, 2007.

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

----Ss. 302, 324, 337-A(i), 341, 147, 148 & 149---Appreciation of evidence---Statement of the witnesses that they reached at the place of occurrence and saw accused inflicting injury on the body of the deceased, appeared to be contradictory to that of the complainant---Said inconsistency and contradiction would not make the whole statement unreliable because the court had to sift the grain from the chaff---If a witness made any contradiction or improvement which could adversely affect his credibility same would not, by itself, be sufficient to reject his testimony as a whole---Complainant had categorically deposed as to how the occurrence had taken place with its full details and there appeared to be no inconsistency or discrepancies in his statement---Evidence of complainant who accompanied the deceased and was injured in the incident, was sufficient to prove the case of prosecution, because conviction could be based on a solitary statement of a witness and no particular number of witnesses was required for proof of a fact, as much importance had to be given to quality and not the quantity of the evidence---Complainant and prosecution witnesses, no doubt were closely related, however their evidence, if rang true, and was confidence inspiring, could not be discarded merely on the basis of such relationship unless and until the witnesses had any enmity with accused---Objection that recovery of knife had not been established because the witnesses of the same were not produced, did not require serious consideration because Investigating Officer had appeared and testified. the recovery---Prosecution had fully proved the case by producing truthful and confidence inspiring evidence---Objection was repelled, in circumstances---Prosecution story had been supported by sufficient corroboratory and confirmatory evidence---Version of prosecution was very much clear, convincing and confidence inspiring and complainant stood firm to the test of cross-examination---Prosecution in circumstances had proved its case and conviction could be recorded on such evidence---Motive, though appeared to be shrouded in mystery, but if prosecution otherwise proved the case by credible evidence, conviction could be based upon such evidence even with the weak motive---Judgment passed by the Trial Court convicting and sentencing accused was upheld---Accused was rightly awarded life imprisonment.

1980 PCr.LJ 1075; 1984 PCr.LJ 743; 1988 PCr.LJ 1261; 1993 PCr.LJ 1739; 1999 MLD 506; 2001 SCMR 177; 2001 PCr.LJ 1740; 2004 PCr.LJ 482; 2003 PCr.LJ 1847; 2001 YLR 1510; 2003 YLR 806; 2005 PCr.LJ 1247; 2007 SCR 100; PLD 1980 SC 225; PLD 1980 SC 225 and 1996 PCr.LJ 256 ref.

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

----Ss. 302, 324, 337-A(i), 341, 148 & 149---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal---Benefit of doubt---Case of vicarious liability---Accused must be shown to share criminal act and also that criminal act was committed in concert and in pursuance of a prearranged plan, but in the present case no pre-concert and prearranged plan appeared to have been proved---Trial Court, in circumstances had rightly given benefit of doubt to acquitted accused---Court had to sift the grain from the chaff and only one circumstance creating doubt in the mind of prudent man was sufficient to acquit accused by way of an abundant caution---If the Trial Court had acquitted some of accused persons by giving them benefit of doubt, that would not impair the veracity of the witnesses against the other accused whose involvement in the case was established---Accused were rightly acquitted, in circumstances by the Trial Court.

1993 SCMR 544 ref.

Mirza Muhammad Nisar for Appellant.

Malik Muhammad Zarriat for Respondent.

Raja Khurshid Ahmed, Asstt. A.-G. for the State.

PCrLJ 2008 SHARIAT COURT AZAD KASHMIR 613 #

2008 P Cr. L J 613

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

NASIMA BIBI----Appellant

Versus

THE STATE through Advocate-General and another----Respondents

Criminal Appeal No.37 of 2005, decided on 30th January, 2008.

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

----S. 154---Qanun-e-Shahadat (10 of 1984), Arts.140 & 153---First Information Report---Scope---F.I.R. was ,a foundation stone of a criminal case though it was not a piece of substantive evidence---F.I.R. was always used for contradicting under Art.140 of Qanun-e-Shahadat, 1984 and corroborating under Art.153 of Qanun-e-Shahadat, 1984---When some infirmities or irregularities were found in an F.I.R., it certainly would affect the final determination of the case especially when it was lodged by a mere stranger and not by an eye-witness.

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

----S. 302(b)---Appreciation of evidence---Filing of F.I.R. was shrouded in mystery and prosecution could not prove the factum of lodging of F.I.R.---F.I.R. had neither been placed on record nor .had been exhibited---Incharge police station, who registered F.I.R. was also not produced before the Trial Court---F.I.R. was also defective and was of no evidentiary value because it had been recorded after consultation and deliberation---Facts and circumstances had shown that F.I.R. was fabricated and could not be proved on the record being reduced into writing by Investigating Officer who had made an incorrect statement about time of recording of F.I.R.---Evidence of prosecution witnesses was not only inconsistent and self-contradictory, but not at all trustworthy---Record had proved that prosecution witnesses first inquired accused about the occurrence and thereafter they lodged the F.I.R., but they did not choose to nominate accused---Story of alleged extra-judicial confession was false, fictitious, suspicious and ambiguous which did not render any support to the prosecution version because a suspicion by itself, however, strong it might be, was not sufficient to take the place of proof to warrant finding of guilt of accused---All recoveries except hatchet had not been made at pointation of accused---Such type of evidence could not be relied upon as corroboratory evidence---Said hatchet was recovered from near Almirah of the room, the place which was easily accessible to all the family members---Findings of Chemical Examiner and opinion of Doctor about the weapon of offence and evidence of beating of deceased by accused having not been put to accused curing examination under S.342, Cr.P.C., could not be .read against him---Material witness was not produced before the Trial Court---Non-production of said most natural and material witness of occurrence strongly led to an inference of prosecutorial misconduct which would not only be considered a source of undue advantage for prosecution, but also an act of suppression of material facts causing prejudice to accused---Clear conflict existed between the prosecution version and the medical evidence, which had made the case of prosecution suspicious and doubtful---Prosecution case was full of glaring defects, legal infirmities and material irregularities---Very weak motive set up by the prosecution during the trial could not be proved on the persons allegedly involved in illicit relations with accused---Impugned judgment of the Trial Court was vague, arbitrary and fanciful---Prosecution having failed to bring charge home to accused beyond any reasonable doubt, benefit of doubt must be extended to accused---Impugned judgment was set aside and accused was acquitted of the charge of murder and was set free.

11996 PCr.LJ 478; PLD 2001 Pesh. 132; 2005 SCMR 277; 2005 YLR 2279; PLJ 2007 Sh.C. AJ&K 78; 2007 YLR 138; PLD 1986 Pesh. 188; Nazim v. The State 1985 PCr.LJ 1951; Iftikhar Hussain and others v. The State 2004 SCMR 1185; Muhammad Hanif v. State PLD 1977 Lah. 1253; Mst. Muhammadia v. Zaribacha and another PLD 1982 Pesh. 85; Nazir Masih v. State 1997 MLD 48; Muhammad Javed v. S.S.P. Gujranwala and others PLD 1988 Lah. 214; Qazi Muhammad Javed v. S.S.P. Gujranwala and others 1999 PCr.LJ 1654; Abdul Mateen v. Sahib Khan and others PLD 2006 SC 538; Pervaiz Akhtar v. The State 2005 MLD 512; Aurangzeb and others v. The State 2005 YLR 1175; Fazal Ellahi v. Muhammad Yaqoob and 17 others 2003 YLR 2897; Nuzhat Bibi v. Shabbir Hussain and 2 others 2006 SCR 58; 2004 YLR 1663; Lal Khan v. The State 2006 SCMR 1846 and 2005 YLR 1092 ref.

----Benefit of doubt---Giving benefit of doubt to an accused was much more than a mere rule of law, it was the rule of "prudence" which no man ought to and no Judge, acting in accordance with the provisions of Qanun-e-Shahadat, 1984 could ignore and that rule was vigorously enforced by Islam and it was one of the foundations of all good and civilized societies.

PLD 1999 Lah. 56 ref.

Tahir Aziz Khan for Appellant.

Syed Ejaz Ali Gilani, Asstt. A.-G. for the State.

PCrLJ 2008 SHARIAT COURT AZAD KASHMIR 633 #

2008 P Cr. L J 633

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

REHMAT DIN----Appellant

Versus

THE STATE through Additional Advocate-General----Respondent

Criminal Appeal No.23 of 2005, decided on 19th December, 2007.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Benefit of doubt---Whole prosecution story was based upon doubt expressed by prosecution witnesses, recoveries and confessional statement of accused---One prosecution witness was not a witness of the story regarding motive---Another prosecution witness, who was part of the episode could not be examined as he died before giving statement---No proof, in circumstances was available in support of the alleged motive---Contradiction with regard to place of recovery of weapon of offence, had cast serious doubt about the recovery of weapon of offence---Prosecution claimed that at the time of occurrence accused used a cloth to cover his body for committing the offence, it was blood-stained and after the occurrence he hid it behind a box in his house; it could not be believed that accused alleged for hatching conspiracy and committing murder of his daughter-in-law and his grand daughter; and had attempted to set the house of the deceased on fire, would preserve a piece of evidence against himself for more than 12 days---Confessional statement of accused according to the prosecution case, was recorded by Additional Deputy Commissioner on the same day, but no evidence indicating that accused showed his willingness or made a request to the Magistrate for recording the statement, was brought on record---As to who brought accused before Magistrate for that purpose was shrouded in mystery---While recording confessional statement accused was not identified by anybody; his identity card or any other source of identification was not mentioned in the statement---Recovery of weapon of offence was doubtful and seizing of blood-stained cloth at the instance of accused was fake awl suspicious---Was not established beyond doubt that accused made any confessional statement and even otherwise same was not recorded in accordance with the provisions of S.164 Cr.P.C.---Retracted confessional statement, in circumstances, was not credible document and prosecution story being highly doubtful, was not worth consideration---Accused was entitled to the benefit of doubt---Accused was acquitted of the charge.

Ch. Muhammad Ibrahim Zia for Appellant.

A.-G. for the State.

2008 P Cr. L J 810

[Shariat Court (AJ&K)]

Before Sardar M. Ashraf Khan, J

NAZAKAT ALI----Petitioner

Versus

THE STATE and another----Respondents

Revision Petition No.94 of 2007, decided on 14th March, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/34 & 506---Bail, grant of---Further inquiry---Deceased was allegedly killed by co-accused by using .12 bore gun and fatal injury was attributed to him---Case of accused was quite different from that of principal accused/co-accused---Accused was alleged to have armed himself with stick and had raised Lalkara---Stick having not been used in the occurrence, matter of sharing common intention could only be ascertained after recording the evidence---Merely going at the scene of occurrence with stick, would not give rise to an inference of common intention as visualized by S.34 P.P.C.---Matter as to whether accused had acted on his own, or on behest of the co-accused, could only be ascertained after recording the evidence by the Trial Court---Only role attributed to accused was that of Lalkara, which was matter of further inquiry within the meaning of subsection (2) of S.497 Cr.P.C.---Accused was admitted to bail, in circumstances.

2000 PCr. LJ 1052 and 2004 PCr. LJ 609 rel.

Abdul Basit for Petitioner.

Raja Javed Akhtar for Respondent.

Raja Khurshid Ahmed, Asstt. A.-G. for the State.

PCrLJ 2008 SHARIAT COURT AZAD KASHMIR 833 #

2008 P Cr. L J 833

[Shariat Court (AJ&K)]

Before Sardar M. Ashraf Khan, J

MUHAMMAD LATIF BUTT----Appellant

Versus

SHEHTAB and 4 others----Respondents

Criminal Appeal No.19 of 2004, decided on 14th March, 2008.

Penal Code (XLV of 1860)---

---Ss. 302/109---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal--- Abetment--- Proof--- Principle--- Principal accused had absconded, while another had died---Appeal to the extent of deceased accused had abated, while non-bailable warrant of arrest of absconding accused had already been issued---Occurrence was unseen as no eye-witness of the occurrence was available and whole case rested upon recovery witnesses, medical evidence, last seen and other incriminating evidence---Accused were alleged to have facilitated, aided and assisted the real offender---No evidence had suggested the instigation, conspiracy or planning of acquitted accused for committing the offence---Complainant had deposed that accused had murdered deceased due to rivalry and he further stated that he was quite sure about the involvement of accused, but he failed to give the reasons for his belief with regard to said involvement, except a previous animosity between the parties---Prosecution witnesses did not even mention the names with their role or any act of instigation or conspiracy on the part of accused---Unless and until some solid proof about the abetment was produced, the court was not obliged to form any opinion on such type of hypothetical versions---Mere presence at thoroughfare or in forest where the villagers usually go for collecting firewood, would .not make out a case of abetment---Abetment had to be proved through independent witnesses having no grudge or enmity with the accused---Trial Court, in circumstances had rightly acquitted accused---Acquitted accused would enjoy double presumption of innocence, one before the Trial Court and the second after his acquittal from competent court on the basis of the principle that every person would be presumed to be innocent till proved guilty.

Mir Sharfat Ali for the Complainant.

Kh. Muhammad Naseem for Respondents.

Raja Gut Majeed Khan, A.-G. for the State.

PCrLJ 2008 SHARIAT COURT AZAD KASHMIR 881 #

2008 P Cr. L J 881

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

MIR AFZAL----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.63 of 2007, decided on 12th March, 2008.

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

----Ss. 302(c) & 308---Appreciation of evidence---Chance witness---Chance witness is one who has no plausible explanation for his presence near the place of occurrence and he had reached there by chance---Witness who gives acceptable explanation for his presence at the place of occurrence cannot be considered as a chance witness.

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

----S. 302(c)---Appreciation of evidence---Chance witness---Evidentiary value of---Principles---No doubt the statement of a chance witness should be carefully scrutinized, but it does not mean that his testimony should be acted upon only if the same is corroborated by independent evidence.

Muhammad Khurshid Khan v. Muhammad Basharat and another PLD 2007 (AJ&K) 27 ref.

----S. 302(c)---Appreciation of evidence---Chance witness---Principles---Court while appreciating the evidence of a chance witness has to be cautious and careful, but at the same time it also cannot be ignored that where the chance witness is otherwise absolutely independent and named in the F.I.R. and his statement is supported by recovery of incriminating article, then of course he cannot be disbelieved.

Muhammad Khurshid Khan v. Muhammad Basharat and another PLD 2007 (AJ&K) 27 and Irshad alias Shada v. The State 1971 SCMR 655 ref.

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

----S. 161-Examination of witnesses by police---Belated examination---Effect---Statements of witnesses recorded by the police at a belated stage would not be fatal, but where delay is not explained and said witnesses had been introduced at a later stage purposely manoeuvred to implicate the accused, such delay would adversely affect the prosecution case and no explicit reliance can be placed on the evidence of such witnesses.

Budho v. The State PLD 1965 (W.P.) Kar. 76; Qadir Bakhsh v. The State PLD 2002 Quetta 97; Asfandyar Wali v. The State PLD 1978 Pesh. 38 and Abdul Khaliq v. The State 1996 SCMR 1553 ref.

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

----S. 302(c)---Appreciation of evidence---Related witness---Relationship or friendship of a witness with the deceased alone is not sufficient to discard his evidence, if he has no motive for false implication of accused and his evidence rings true.

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

---Ss. 302(c) & 308---Appreciation of evidence---Eye-witnesses though were related inter se and also to the deceased, had no enmity to falsely implicate and substitute the accused---Medical evidence had fully supported the ocular version, which was further corroborated by the reports of Experts---Recovery of clothes of the deceased had also confirmed the prosecution story and this evidence was not challenged by the defence---F.I.R. did not suffer from any delay and the statement of the Investigating Officer in this respect had to be relied upon, who had performed his official duty in normal course of events to which presumption of truth was attached---Motive set up by prosecution had been proved---Place of occurrence was the same as alleged by the prosecution in the F.I.R.---Occurrence had taken place in the house of accused---Ocular evidence was reliable, convincing and worthy of credence---Complainant could not possibly falsely involve his son-in-law in the case, who was father of three minor children---However, conviction of accused under S.302(c), P.P.C. being illegal was converted into S.308, P.P.C. and he was sentenced to pay Diyat along with sentence of 14 years' R.I. in circumstances.

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

----S. 302---Appreciation of evidence---Statement of eye-witness not challenged---Effect---If the statement of an eye-witness is not challenged in cross-examination, the same is considered to have been admitted by the opposite party.

Abdul Latif v. Sifarish Ali Khan 2004 YLR 1663 ref.

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

----S. 302---Appreciation of evidence---Police witnesses---Credibility---Police witnesses are as good witnesses as other witnesses, especially so when no enmity or motive on the part of police has been shown by defence for false involvement of the accused.

2004 PCr. LJ 890 ref.

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

----S. 302---Appreciation of evidence---Recovery evidence---Corroboration---Recovery evidence is merely corroborative evidence and it is not necessary that corroboration should be from independent evidence---It is sufficient if the version of eye-witnesses is confirmed from some evidence or any circumstance.

Muhammad Khurshid Khan v. Basharat and another PLD 2007 SC (AJ&K) 27 ref.

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

----S. 302---Appreciation of evidence---Corroboration---Principles---Corroboratory or confirmatory evidence is not of much significance when ocular version is clear and cogent---Corroboratory evidence cannot outweigh the direct evidence and conviction in law can be recorded on such evidence without any corroboration.

2000 PCLLJ 1484 ref.

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

---S. 302---Appreciation of evidence---Delayed F.I.R.---Delay in F.I.R. assumes importance when the identity of accused is doubtful.

2000 SCR 123 ref.

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

---S. 302---Sentence---Motive not proved---Effect---Death sentence may not be awarded---Where motive for the offence is shrouded in mystery or the same is not proved or is not satisfactorily established, extreme penalty of death is usually avoided, and lesser sentence of imprisonment for life is awarded.

Muhammad Khurshid Khan v. Muhammad Basharat and another PLD 2007 SC (AJ&K) 27; Muhammad Ali v. The State 1988 PCr.LJ 307; The State v. Bahadur and another 1987 PCr.LJ 1689 and Ghulam Hussain v. The State 1987 PCr.LJ 1812 ref.

Mian Sultan Mahmood for Appellant.

Khalid Yousuf, Asstt. A.-G. for the State.

PCrLJ 2008 SHARIAT COURT AZAD KASHMIR 917 #

2008 P Cr. L J 917

[Shariat Court (AJ&K)]

Before Sardar M. Ashraf Khan, J

SHAFIQUE-UL-HAQ----Petitioner

Versus

THE STATE----Respondent

Revision Petition No.120 of 2007, decided on 19th March, 2008.

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

----S. 497---Penal Code (XLV of 1860), Ss.324/334/364/337/336/ 147/148/149/452/109---West Pakistan Arms Ordinance (XX of 1965), S.13---Bail---Assessment of evidence---Principles---Only tentative assessment of evidence is to be made at bail stage and deeper appreciation of evidence is neither required nor warranted by law.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.324/334/364/337/336/ 147/148/149/452/109---West Pakistan Arms Ordinance (XX of 1965), S.13---Bail, grant of---Complainant had himself stated that the accused had fired on the lower part of his leg---Mere fact that the bone was fractured or some nerves were ruptured or damaged in that process, did not mean that the accused had the intention to kill the complainant or that he had the knowledge that he by that act would be guilty of murder---In order to gather such intention or knowledge, the seat of injuries would be of great importance---Injury appeared to be on non-vital part of the body of the complainant---Accused had not repeated the injury despite the complainant being at his mercy---Application of S.324, P.P.C., thus, would be determined by Trial Court after recording evidence---Amputation of leg of the complainant, at this stage, could not be said to be the direct result of the act of the accused, as defective surgery or negligence of complainant himself, might have contributed to the same---Matter, therefore, fell within the ambit of further inquiry as envisaged by S.497(2), Cr.P.C.---Mere statement of Police Officer regarding non-availability of accused could not be made basis of his abscondence, unless the summons or warrants were properly served upon him---Process of Ss.87 & 88, Cr.P.C. had not been properly followed---Despite numerous opportunities having been given, prosecution did not produce the witnesses on one pretext or the other and appeared to prolong the case, resulting in delay amounting to abuse of the process of law---Accused was detained in jail for one and a half years and the trial was not likely to be concluded for further several months at least---Bail could not be withheld as a punishment---Accused was admitted to bail in circumstances.

PLD 1988 (sic) 148; 2004 PCr.LJ 148; 2005 SCR 302; 2005 SCR 109; 2007 SCR 79; PLD (?) 1982 and PLD 1996 Kar. 372 ref.

----S. 512---Recording of evidence in absence of accused---Abscondence of accused---Term "abscond" is not to be understood as implying necessarily that a person leaves his place---If a person having concealed himself before process is issued continues to do so after it is issued, he absconds---Where, however, the accused had admittedly gone out of country and so the service of the summons in person was not possible on him, in such case, Court could not have lawfully proceeded against him under S.512, Cr.P.C., because the accused was neither absconding nor concealing himself to avoid service.

PLD (sic) 1982 and PLD 1996 Kar. 372 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss.324/344---Bail---Abscondence of accused---Principles---Principles of refusing bail to the absconder is not applicable strictly to each case---Bail may not be refused on the point of abscondence, if the accused had no knowledge about the case pending against him in any court, similarly if the case of accused falls within the ambit of further inquiry, then bail becomes his right notwithstanding his abscondence.

PLD 1996 Kar. 372 ref.

Abdul Waheed Durrani for Petitioner.

Raja Inamullah Khan for the Complainant.

Raja Gul Majeed Khan, A.-G. for the State.

PCrLJ 2008 SHARIAT COURT AZAD KASHMIR 950 #

2008 P Cr. L J 950

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

UMMAR FAROOQ----Petitioner

Versus

MUHAMMAD ILYAS and another----Respondents

Criminal Revision No.136 of 2006, decided on 26th March, 2008.

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

----S. 561-A---Inherent power of the High Court---Scope---Even possessing wide and indefinable powers to do real justice and prevent abuse of process of the court, it could not override an express provision of law; which would mean that the powers available to High Court under S.561-A Cr.P.C., could not be exercised in respect of the matters, which were covered directly by any specific provision of criminal procedure; in that manner, the court could not abstract or divert ordinary course of criminal procedure.

(b) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)---

----S. 25---Criminal Procedure Code (V of 1898), S.561-A---Inherent jurisdiction of High Court, invocation of---Scope---Specific procedure had been provided by S.25 of Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act, 1974, which postulated that any party aggrieved by an order of District Criminal Court could file a revision petition against impugned order within a period of 60 days---Legislature had provided a particular mode of action for an aggrieved party and had also prescribed a particular manner for redress of the grievance---Court, in such-like circumstances, could not invoke its inherent jurisdiction to correct an error because an express provision was available in the procedure for appropriate and adequate relief---Inherent jurisdiction could not be invoked in addition where an express provision of law was available in the statute dealing with a particular subject--When an express provision of law was available for redress of the grievance to any party, then inherent jurisdiction of the High Court could not be invoked as an alternate or additional jurisdiction.

Khawaja Fazal Kareem v. The State and another PLD 1976 SC 461; Sheikh Mahmood Saeed and others v. Amer Nawaz Khan and another 1996 SCMR 839; Altaf Hussain v. Abdus Samad and 3 others 2000 SCMR 1945; Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317; Fazal Karim v. State PLD 1976 SC 461; Mehmood Saeed v. Amir Nawaz Khan 1996 SCMR 839; State v. Asif Ali Zardari 1994 SCMR 798 and Sher Alam and another v. State and 3 others 1998 SCR 331 ref.

----Ss. 540 & 162---Summoning of given up prosecution witness and his examination and re-examination---Scope---Given up prosecution witness, if examined under S.540 Cr.P.C., could be confronted with his police statement---Such prosecution witness, examined under S.540 Cr.P.C., would retain the character of a prosecution witness and during his examination under said section, he could be confronted with his police statement in terms of S.162 Cr.P.C.---Trial Court did not commit any illegality or irregularity while allowing accused to cross-examine the court witness about the affidavits filed by some persons during the course of investigation especially when those affidavits were made part of the police record by the Court witness.

1980 PCr.LJ 570 and Sher Alam and another v. State and 3 others 1998 SCR 331 ref.

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

----Art. 140---General Diary---General Diary which was an official register and the entries therein were made in discharge of official duties, which if relevant concerning a fact in issue in a court of law, could be used and brought on record under Art.140 of Qanun-e-Shahadat, 1984.

Raja Muhammad Shafique for Petitioner.

M. Azam Khan for Respondent.

Khalid Yousuf, Astt. A.-G. for the State.

PCrLJ 2008 SHARIAT COURT AZAD KASHMIR 1000 #

2008 P Cr. L J 1000

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

ISRAR AHMAD and others ----Appellants

Versus

THE STATE and others----Respondents

Criminal Appeal No.17, 14 and Criminal Reference No.1 of 2005, decided on 18th February, 2008.

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

----Ss. 302, 324, 337-D, 337-F(vi)/34---Appreciation of evidence---Burden. of proof---Initial burden to prove case against accused lay upon the prosecution, particularly in case of two versions and it would become more important to bring unshattered and credible evidence to diminish the value of defence plea and discard all possibilities and probabilities of the defence version being true---Accused was not bound to lead direct or indirect evidence in support of his plea and could establish the same through the circumstances appearing in prosecution evidence---Prosecution evidence should not only appear to be true account of the occurrence, but must convince and satisfy conscience of a Judge that the material was sufficient for capital punishment because any expression of doubt or remote chances of defence plea being true, would suggest acquittal or lesser punishment.

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

----Ss. 302, 324, 337-D & 337-F(vi)/34---West Pakistan Arms Ordinance (XX of 1965), S.13---Appreciation of evidence---Sentence, reduction in---Trial Court had observed that accused were vicariously liable for committing the offence---No evidence was brought on record to prove that prior to the occurrence, accused persons met each other or they came at the place of occurrence together---Premeditation or pre-concert to commit the offence was not established during trial---One of accused person was not attributed any overt act against the deceased---Any circumstance indicating that common intention was developed at the spur of the moment, was not available on record---Trial Court had failed to appreciate that offence was not committed in furtherance of common intention---Abrasion at the shoulder of accused had confirmed that scuffle took place prior to the main occurrence----Presence of three crime empties of .9 mm bore in the parcel sent to Forensic Science Expert suggested that possibility of use of same bore pistol in the occurrence could not be ruled out---One of accused suffered fire-arm injury and explanation given by the prosecution was not satisfactory which implied that prosecution version was not wholly true---Conviction of accused under S.34 P.P.C. and sentence of Qisas was not warranted, in the circumstances---Order of conviction under Ss.324 & 337 P.P.C. and West Pakistan Arms Ordinance, 1965, passed against both accused persons was maintained, while sentence of life imprisonment awarded to one of accused, was set aside---Sentence of Qisas awarded to other accused under S.302 P.P.C. was altered into life imprisonment and benefit of S.382-B, Cr.P.C. was also extended to accused persons.

----S. 34---Acts done by several persons in furtherance of common intention---Section 34 P.P.C. required a pre-concert or pre-arranged plan---Explanation of such pre-concert could be established even by an act performed by an individual after completion of the crime, but some evidence showing meeting of mind or pre-planning was necessary for conviction.

Azam Khan and Abdul Majeed Malick for Appellants.

Mirza Muhammad Nisar for the Complainant.

Addl. A.-G. for the State.

PCrLJ 2008 SHARIAT COURT AZAD KASHMIR 1084 #

2008 P Cr. L J 1084

[Shariat Court (AJ&K)]

Before Sardar M. Ashraf Khan, J

MUHAMMAD SIDDIQUE and another----Petitioners

Versus

THE STATE and 4 others----Respondents

Revision Petition No.106 of 2007, decided on 7th April, 2008.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 337, 147, 148 & 149---Appreciation of evidence---Reconstruction of record---When case was at the stage of final arguments, record pertaining to whole case was 'destroyed due to disaster of earthquake---Trial Court started reconstruction of record after summoning opposite party---Verified copies of the record along with available record was presented for reconstruction of the same---Counsel for petitioners/accused sought adjournment for producing the record in their possession, but despite granting them three adjournments, they failed to produce the same---Permission from Shariat Court was also obtained for reconstruction of record---Petitioners/accused's objection was that record collected and made part of reconstruction being the photocopies, same was not admissible in evidence; and that reconstruction of the record could be initiated from the date of permission of Shariat Court---No objection was ever raised by petitioners/accused with regard to photocopies before the Trial Court---Participation of the petitioners/accused in the whole proceedings before the Trial Court would bar them to raise such objection at later stage---Objection of petitioners was repelled---Petitioners, were free to produce concerned documents, if any, in their possession---Petitioners having participated in the proceedings of the case, could not back out from their participation and claim to restart proceedings afresh.

Syed Tayyab Gillani for Petitioners.

Raja Gul Majeed Khan, A.-G. for the State.

PCrLJ 2008 SHARIAT COURT AZAD KASHMIR 1098 #

2008 P Cr. L J 1098

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

MUHAMMAD ILYAS and others----Appellants

Versus

THE STATE and another----Respondents

Criminal Appeals Nos.101, 143 of 2005, 57 and 58 of 2007 and Criminal Reference No.100 of 2005, decided on 29th March, 2007.

Penal Code (XLV of 1860)---

---Ss. 302, 324 & 337---West Pakistan Arms Ordinance (XX of 1965), S.13---Appreciation of evidence---Deceased and the prosecution witnesses were related inter se---Accused persons were members of one family-Enmity prevailed between the parties---Victims suffered fire-arm injuries---Forensic Science Expert's report had shown that one out of five crime empties seized from the place of occurrence was fired from .12 bore gun recovered at the instance of first accused, while four fired from short pistol were recovered at the pointation of the second accused---Nothing was on record establishing that accused persons nourished a grudge due to installation of electric poll and particularly in view of the fact, that they did not make any attempt to remove the poll---Claim of prosecution regarding immediate cause of occurrence was in doubt---Occurrence was not premeditated and it could not be ruled out that act of the complainant party might have increased the prevailing tension which provoked accused persons and they suddenly opened fire---Death sentence awarded to first accused and conviction recorded against the second accused for sharing intention and attempt to murder, was not warranted in circumstances---Prosecution having failed to prove its case against acquitted accused persons, they were rightly acquitted of the charges---Case of third accused was also doubtful as recovery of .30 bore pistol was not confidence-inspiring and case against said accused was similar to that of acquitted accused persons---Said third accused was acquitted of the charge---Second accused was also acquitted of the charges under Ss.302 & 324 P.P.C., however his conviction under S.337 P.P.C. and West Pakistan Arms Ordinance, 1965 was maintained, while by modifying the impugned judgment death sentence awarded to the first accused by the Trial Court was altered into life imprisonment---Convicts were also allowed benefit of S.382-B, Cr.P.C.

Ch. Muhammad Taj for Appellants (in Appeal No.101 of 2005) and for Respondents (in Appeal No.143 of 2005).

Ch. Khalid Rashid for the Complainant (in Appeals Nos.57 and 58 of 2007).

Additional Advocate-General for the State.

PCrLJ 2008 SHARIAT COURT AZAD KASHMIR 1105 #

2008 P Cr. L J 1105

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

TASAWAR HUSSAIN and others-Appellants

Versus

THE STATE and others----Respondents

Criminal Appeals Nos.54, 55, 57, 58 and Criminal Reference No.50 of 2007, decided on 15th March, 2008.

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

----S. 107---Abetment---Accusation of abetment must be proved by producing evidence showing prior meeting of minds or act done by an accused during the occurrence---Mere allegation of raising Lalkara, was not sufficient to convict an accused for abetment, particularly when all accused persons belonged to same family---Such type of allegation always needed serious consideration and some material to establish participation of an accused in the occurrence was required.

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

----Ss. 302, 324, 337-F(i), 341 & 506/34---West Pakistan Arms Ordinance (XX of 1965), S.13---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---One of the accused persons was alleged to have fired with .30 bore pistol and thus causing injury at index finger of right hand of complainant---Said pistol was seized from an open place where it was lying in bushes---Pistol and two crime empties of .30 bore seized from the place of occurrence were sent for Expert opinion, but report in that respect was not brought on record---Recovery of weapon, in circumstances, was of no help to prosecution case---Could not be ruled out that claim of fire-arm injury, was an exaggeration on the part of the eye-witnesses in order to strengthen the prosecution story---One of the co-accused was alleged for pelting stones at the complainant, but no injury of that kind was found on the person of complainant---Allegations against said two accused persons were not proved beyond doubt, in circumstances---Deceased, complainant and prosecution witnesses were closely related to each other---Enmity between the parties was admitted---Prosecution witness who could have given true account of occurrence, was not examined and no other independent witness was produced---Prosecution story was based upon uncorroborated deposition of two inimical witnesses---Ocular version to the extent of two acquitted accused persons, was not confidence-inspiring---Allegation of blocking the road was not proved--Claim of the eye-witnesses regarding fire-arm injury at the person of complainant was doubtful---One lacerated wound and an abrasion found at the person of deceased, were not explained by the eye-witnesses, recovery of incriminating articles was of no help to the prosecution case---Strong mitigating circumstances in favour of accused, were present on record---Death sentence was not warranted to said accused, in circumstances---Appeal filed by said accused was partly accepted and his death sentence was altered into life imprisonment with benefit of S.382-B Cr.P.C.---Other two co-accused were acquitted of the charge.

Abdul Majeed Malick, Ch. Muhammad Taj and Raja Inamullah Khan for Appellants (in Appeals Nos.54 and 55 of 2007) and for Respondents (in Appeals Nos.57 and 58 of 2007).

Bostan Chaudhry for the Complainant/Appellants (in Appeals Nos.57 and 58 of 2007).

Addl. A.-G. for the State.

PCrLJ 2008 SHARIAT COURT AZAD KASHMIR 1502 #

2008 P Cr. L J 1502

[Shariat Court (AJ&K)]

Before Sardar Muhammad Nawaz Khan, CJ

MUHAMMAD ZARIF and another---Petitioners

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.193 of 2007, decided on 14th December, 2007.

Criminal Procedure Code (V of 1898)---

---S. 561-A---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10, 11, 14 & 19---Quashing of F.I.R.---Both male and female accused who were major and adult, had contracted marriage of their free-will and consent---Accused persons, in circumstances, had committed no offence---Prosecution by placing the female spouse in the line of accused had accepted that the case against accused persons was baseless---Such a case, if allowed to continue, would result into nothing, but incarceration of accused persons---Medico-legal Report though confirmed that female accused had been subjected to sexual intercourse, but it became immaterial as marriage of the spouses was admitted---Possibility of Zina before how was strong a presumption only and in criminal law, a presumption, it might be, could not constitute proof---In a case of Zina the standard of evidence was much more strict than in other criminal cases---Accused persons by entering into wedlock when they were adult and major had committed no offence---Case, no doubt, was yet challaned, but the police record would show that investigation was complete and no case under law was found to have been made out against accused persons, it would, in circumstances, be against the interest of justice if it was allowed to continue and keep accused in jail anymore.

Nasreen Akhtar's case 1994 PCr.LJ 2016 .ref.

Sardar Shamshad Khan for Petitioners.

Sardar Muhammad Shahzad Khan and Sardar Azeem Khan, Addl. A.-G. for the State/Respondents.