PCRLJ 2009 Judgments - Pakistan Legal Archive

Courts in this Volume

Federal Shariat Court
High Court Azad Kashmir
Islamabad
Karachi High Court Sindh
Lahore High Court Lahore
Northern Areas Chief Court
Peshawar High Court
Quetta High Court Balochistan
Supreme Appellate Court
Supreme Court Azad Kashmir
Supreme Court Ajk

Federal Shariat Court

PCrLJ 2009 FEDERAL SHARIAT COURT 36 #

2009 P Cr. L J 36

[Federal Shariat Court]

Before Muhammad Zafar Yasin and Syed Afzal Haider, JJ

HASHIM----Appellant

Versus

GUL MUHAMMAD and 2 others----Respondents

Criminal AppealNo.316/I of 2005, decided on 26th August, 2008.

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

---S. 265-K---Purpose of S.265-K, Cr.P.C.---Power of court to acquit accused---Trial Court under S.265-K, Cr.P.C., had no doubt the jurisdiction to acquit an accused at any stage of the case, but a big rider was attached to the exercise of that discretion---Firstly both the parties had to be heard; and secondly the court, after considering the pros and cons of the controversy, should come to the conclusion that there was no possibility of accused being convicted of any offence---Legal effect of accepting of application under S.265-K, Cr.P.C., would be clean acquittal of accused and not enlarging him on interim bail, to secure attendance at the trial---Section 265-K, Cr.P.C. was an exception to the general rule relating to trial of cases under the Code---Said provision had to be construed strictly---Trial Court was under an obligation to record reasons to justify the inference that in all probability the verdict of guilt would not be returned---Proceedings under S.265-K, Cr.P.C. were summary in nature---There had to be judicious exercise of discretion under S.265-K, Cr.P.C. and depriving a complainant to prove his case through oral or documentary evidence, was not fair exercise of jurisdiction---Stifling the prosecution was not the purpose of S.265-K, Cr.P.C.

Syed Mushtaq Hussain Shah Bokhari v. The State and another PLD 1981 SC 573; Syed Ahmed v. State PLD 1958 SC (Pak) 21; The State v. Mir Nabi Bukhsh Khan Khoso and another 1986 PCr.LJ 11J0; Khawaja Zulfiqar Ali v. The State 1992 MLD 265 and The State v. Azim Malik PLD 2005 SC 686 ref.

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

----S. 12---Penal Code (XLV of 1860), S.377---Relevancy of the opinion of Investigator---Relevancy of the opinion of an investigator would depend upon the soundness of the material on which it was based---Trial Court, in circumstances, must rest its opinion on the nature of accusation and the quality of evidence that the prosecution intended to produce at the trial as well as other factors surrounding the occurrence or available on the record of the case---Trial Court should not be satisfied with the ipse dixit of police---Material which would satisfy an ordinary prudent mind must be available on record---Question of determination of the guilt under the Code of Criminal Procedure was the domain of the Trial Court and the court was not bound by the findings of Investigating Agency, even if different officers had given a consistent opinion---Trial Court had to form an independent opinion on the basis of the available record and should not feel bound by the opinion of police--Judicial discretion could not be made subservient to the dictates of police.

Nasir Abbas v. The State 1995 SCMR 1333 ref.

----S. 12---Penal Code (XLV of 1860), S.377---Criminal Procedure Code (V of 1898), Ss.265-K & 417---Appeal against acquittal---Trial Court while acquitting accused persons had neither come to the conclusion that it was a case of no evidence nor it found that no material was on record to connect accused persons with the offence---When the oral evidence as well as medico-legal opinion and the report of the Chemical Examiner was available to prove the offence against accused persons, the Trial Court by granting relief to accused persons, had suffocated the complainant party by depriving them of the right of producing available evidence in support of their case---Order of acquittal passed by the Trial Court, was set aside and case was remanded for retrial, accordingly.

Allah Bakhsh Khan Kulachi for Appellant.

Ghulam Mehboob Khokhar for Respondents.

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

Date of hearing: 26th August, 2008.

PCrLJ 2009 FEDERAL SHARIAT COURT 69 #

2009 P Cr. L J 69

[Federal Shariat Court]

Before Haziqul Khairi, CJ

INAYAT MASIH----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.258/L of 2005, decided on 11th September, 2008.

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

----S. 377---Appreciation of evidence---Prosecution witnesses had fully established on record that the accused had committed sodomy with the 5/6 years old daughter of the complainant---Medical evidence had supported the prosecution evidence---Complainant could not be believed to have falsely implicated the accused in the case putting at stake the honour of his family by involving his 5/6 years old innocent daughter in the affair---No question whether the accused was a child or not was raised by the defence at the trial---Conviction of accused was consequently maintained---Accused had undergone his sentence for about five years and ten months out of seven years' R.I. awarded to him by Trial Court and the same was reduced to the imprisonment already undergone by him in circumstances with reduction in fine.

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

----S. 7---Determination of age of accused---Suo motu notice by Trial Court---Where medical evidence, school certificate or some other evidence on record discloses, or where Trial Court has reasons to believe that the accused is a child, it may take suo motu notice of same and proceed to determine the age of the accused under S.7 of the Juvenile Justice System Ordinance, 2000----Nothing in S.7 of the said Ordinance prevents a Court to itself raise such question to the prosecution and determine the age of an accused.

Qazi Muhammad Arshad Bhatti for Appellant.

Malik Muhammad Rafique Khokher, Dy. P.-G., Punjab for the State.

Date of hearing: 11th September, 2008.

PCrLJ 2009 FEDERAL SHARIAT COURT 199 #

2009 P Cr. L J 199

[Federal Shariat Court]

Before Haziqul Khairi, C.J. and Syed Afzal Haider, J

THE STATE----Petitioner

Versus

TANVEER-UL-HASSAN and 5 others----Respondents

Criminal Appeal No.28/P and Criminal Miscellaneous Application No.15/P of 2005, decided on 15th July, 2008.

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

----S. 417---Appeal against acquittal---Principles enunciated.

Appellate Court while hearing arguments in an appeal against acquittal will ordinarily consider the following points:---

(i) Court will not normally interfere in the verdict of acquittal, (ii) Court will give due weight and consideration to the finding of the lower Court, particularly the Trial Court which had the occasion of not only recording the evidence but also watching the demenor of the witnesses and attending to the plea of the person facing trial, (iii) what is the view of the trial Judge regarding the credibility of witnesses, (iv) verdict of acquittal affirms the initial plea that every person is presumed to be innocent unless proved guilty, (v) it is not a sufficient ground of interference that on re-appraisal of the evidence on record a different view might as well be formed, (vi) whether reappraisal of evidence shows any manifest wrong, perversity or uncalled for conclusion from facts proved on record, (vii) whether the findings arrived at by Trial Court are wholly artificial, shocking and ridiculous, (viii) whether material evidence has been disregarded, (ix) whether material evidence has been misread blatantly to an extent that miscarriage of justice has been occasioned, (x) whether evidence has been brought on record illegally, (xi) there is, however, no bar upon the superior Courts to interfere in the acquittal judgment, but the Courts exercise extra caution while exercising jurisdiction in appeals against acquittal, (xii) the rights of accused to any benefit of doubt and (xiii) mere disregard of technicalities in a criminal trial without resulting injustice, is not enough for interference.

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

----S. 161---Examination of witnesses by police---Statement recorded with delay--Credibility---Credibility of a witness is looked with serious suspicion if his statement under S.161, Cr.P.C. was recorded with delay without offering plausible explanation.?

Muhammad Khan v. Maula Bukhsh and another 1998 SCMR 570 ref.

----S. 428---Additional evidence at appellate stage---Scope---Despite the wide terms in which the power to call for further evidence is expressed in S.428, Cr.P.C., it is only to be exercised where additional evidence was either not available at the trial, or the party concerned was prevented from producing same either by circumstances beyond its control, or by reason of misunderstanding or mistake.?

Ghulam Muhammad v. The State PLD 1957 Lah. 263, ref.

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

----S. 428---Additional evidence, calling of---Power of Court---Judge is an arbiter, he is neither an investigator nor a prosecutor, he is not a party to the case and he is not expected to fill up the gaps left by any party---Power under .S.428, Cr.P.C. has not to be utilized to cure inherent infirmities and it should not be an invitation for perjured evidence---Court has to keep the interest of justice in view and its actions should not cause annoyance to persons connected with the case.?

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

----S. 417---Constitution of Pakistan (1973), Art.203-DD---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10, 11 & 16---Appeal against acquittal---Alleged abductee, no doubt, was not available at the time of trial, but Federal Shariat Court had been apprised by the parties that she had appeared before the Supreme Court and owned her statement made before the Judicial Magistrate to the effect that she had just created a scene by implicating innocent and respectable persons with ulterior motives---Appellant had demanded remand of the case for a de novo trial, because after the recovery of the abductee some more evidence had reportedly been made available---Nature of the said evidence had, however, not been identified, nor any material was placed on record by the appellant to connect the accused with the offences mentioned in the F.I.R., meaning thereby that the appellant did not want to take the Appellate Court into confidence as regards the nature and extent of the evidence which had been made available to them---Prayer for remanding the case for a de novo trial was not sustainable also because a second trial on the same charges emanating from the same F.I.R. would be offending not only the express provisions of S.403, Cr.P.C. but would be violative of the guarantee enshrined in Art.13(a) of the Constitution---Even otherwise, the case was not covered by the principles which regulated the process of remand---Even the application filed for condoning the delay of five months and eighteen days in filing the appeal against acquittal of accused, had neither disclosed any sufficient cause nor any relevant material had been placed on record particularly from the date of receiving the certified copy of the impugned judgment and the filing of appeal---Delay in filing the appeal had not at all been explained and the appellant had not made out a case for interference---Appeal had been considered on merits as well, because of controversy related to a sensitive issue in which Supreme Court was persuaded to take suo motu notice, though the actual facts were different---Findings and conclusions arrived at by Trial Court in acquitting the accused did not warrant any interference by Federal Shariat Court---Prayer for remand and retrial of the case would not advance the cause of justice as it would only cause additional and uncalled for hardship to the accused---Court, in order to administer justice, had to maintain balance and thereby watch the interest of both the parties and not the prosecution party alone---Appeal against acquittal of accused was dismissed accordingly.?

Sheo Swarup and others v. King Emperor AIR 1934 PC 227; Muhammad Ashiq v. Allah Bukhsh and another PLD 1957 SC (Pak) 293; Siraj Din v. Kala and another PLD 1964 SC 26; Dal Singh v. King Emperor AIR 1917 PC 25; Bertrand's case (1867) 1 PC 52.0; Abraham Mallory Dillet (1887) 12 AC 459; Taba Singh v. Emperor AIR 1925 PC 59; Otto Geroge Gfeller v. The King AIR 1943 PC 211; Mohindar Singh v. Emperor AIR 1932 PC 234; Muhammad Nawaz v. Emperor AIR 1941 PC 132; Muhammad Ashiq v. Allah Bakhsh and another PLD 1957 SC (Pak.) 293=(1957) 2 SCR (Pak.) 106; Fateh Muhammad v. Bagoo and others PLD 1960 SC 286; Zafar Ali v. The State PLD 1962 SC 320; Mian Said Baghdad v. Said Mian and 2 others 1983 SCMR 117; Muhammad Khursheed v. State PLD 1963 SC 157; Muhammad Khan v. Maula Bukhsh and another 1998 SCMR 570; State v. Nazir Ahmed 1999 SCMR 610; Umar Hayat v. Jahangir 2002 SCMR 629; Mst. Roheeda v. Khan Bahadur 1992 SCMR 1036; Ghulam Sikandar and another v. Mamraz Khan and others PLD 1985 SC 11; Lalu v. The State PLD 1959 SC (Pak) 258; State v. Muhammad Amin and others 1985 PCr.LJ 472; Bakht Baidar v. The State 1982 SCMR 420; Ghulam Muhammad v. The State PLD 1957 Lah. 263; Moonda and others v. The State PLD 1958 SC (Pak.) 275; Muhammad Jee v. Muhammad Ibrahim Shauq 1988 SCMR 1691; Anwar and another v. The Crown PLD 1955 FC 185; Abdur Rashid v. The State PLD 1962 SC 249; Abdur Rashid-Khondkar v. Chandu Matbar and others PLD 1964 SC 795; State v. Muhammad Akram and 5 others PLD 1985 FSC 416; Messrs Watan Woollen Mills v. Province of the Punjab 1999 SCMR 249; Fakhar-ud-Din v. Fazal Karim 1999 SCMR 795; Mst. Rabia v. Rasool Bakhsh PLD 1966 SC 531; Abdul Qayyum v. Ghulam Yasin PLD 1963 SC 151; Nabi Bakhsh v. Ghulam Sarwar and others 1968 SCMR 780; Piran Ditta v. The State and others 1970 SCMR 282; Mst. Zeenat Sultan v. Mumtaz Khan PLD 1994 SC 667; Dr. Ghulam Farid Malik v. Ikram Saqlain Haider 2003 YLR 1041; Hussain Bakhsh v. Allah Bakhsh and others PLJ 1981 SC 619; Mureed and 2 others. v. State 2003 SCMR 64 and The State v. Nazir Ahmed and others 1999 SCMR 610 ref.

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

----S. 423---Remand of case for retrial---Extent and scope---Exercise of discretion in remanding the case must be in accordance with the dictates of justice and not arbitrary and fanciful, while holding at the same time that Legislature itself had not defined the limits or the grounds for the exercise of a discretion---But regard should be given to the Trial Court's view of the evidence, the nature of the error committed, the magnitude of apprehended miscarriage or failure of justice, the possibility and extent of prejudice to ,the accused, the chances of conviction and the expenses of a retrial.?

Muhammad Jee v. Muhammad Ibrahim Shauq 1988 SCMR 1691 and Anwar and another v. The Crown PLD 1955 FC 185 ref.

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

----S. 423---Remand of criminal case for retrial---Guidelines---Retrial of a criminal case may be resorted to where, the accused did not get proper opportunity to cross-examine the witnesses; the Court lacked jurisdiction or the accused did not get proper opportunity to produce defence.?

(h) Federal Shariat Court (Procedure) Rules, 1981---

----R. 18(1)(a)---Constitution of Pakistan (1973, Art.203-J---Limitation Act (IX of 1908), S.29---Limitation for appeals---Federal Shariat Court (Procedure) Rules, 1981, were framed under Art.203-J of the Constitution and therefore they are statutory Rules and are of the category of a special law under S.29 of the Limitation Act, 1908---Consequently the limitation prescribed under R.18(1)(a) of the Federal Shariat Court (Procedure) Rules, 1981, would apply to all appeals.?

State v. Muhammad Akram and 5 others PLD 1985 FSC 416 ref.

(i) Constitution of Pakistan (1973)---

----Art. 185(3)---Petition for leave to appeal against acquittal---Time?-barred petition---Effect---In a petition for leave to appeal against acquittal, the element of lapse of time is sufficient to provide protection to a person who has been acquitted, against further judicial process by way of a formal petition for leave to appeal.?

Fakhar-ud-Din v. Fazal Karim 1999 SCMR 795; Mst. Rabia v. Rasool Bakhsh PLD 1966 SC 531; Abdul Qayyum v. Ghulam Yasin PLD 1963 SC 151; Nabi Bakhsh v. Ghulam Sarwar and others 1968 SCMR 780; Piran Ditta v. The State and others 1970 SCMR 282 and Mst. Zeenat Sultan v. Mumtaz Khan PLD 1994 SC 667 ref.

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

----S. 417---Limitation Act (IX of 1908), S.5---Time-barred appeal against acquittal---Condonation of delay---Principles---Delay cannot be condoned unless it is shown that the same was caused by an act of the acquitted accused or by the circumstances of compelling nature---Delay in filing the appeal can be condoned upto the announcement of judgment or upto the supply of the copy of the order, but in a case where the delay is not explained from the date the copy was obtained and the appeal was filed, its condonation was not possible.?

Dr. Ghulam Farid Malik v. Ikram Saqlain Haider 2003 YLR 1041 and Hussain Bakhsh v. Allah Bakhsh and others PLJ 1981 SC 619 ref.

Fazal-ur-Rehman Rana and Aziz-ur-Rehman for Respondents.

Muhammad Sharif Janjua for the State.

Ijaz Ahmed Malik for the Complainant.

Date of hearing: 28th April, 2008.

PCrLJ 2009 FEDERAL SHARIAT COURT 242 #

2009 P Cr. L J 242

[Federal Shariat Court]

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

MUHAMMAD NAZIR and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.102-L of 2004 and Criminal Murder Reference No.11/L of 2004, decided on 13th August, 2008.

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

----Ss. 11 & 10(4)---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Visit of the complainant to the house of accused on the day of occurrence was not challenged---Abduction of the abductee was fully supported by her own statement as well as by the complainant and an independent witness of the vicinity, who had seen the abductee being dragged into the wagon by the accused Who were carrying fire-arms---Pistol and the gun had been recovered from the accused---Abductee in her statement under. S.164, Cr.P.C. and in her testimony before the Court had unequivocally stated that the accused had subjected her to Zina-bil-Jabr turn by turn after taking her to different places and on her resistance accused had hit her with a hot iron rod---Medical evidence had fully supported the abductee---Nothing was available to disbelieve the abductee whose testimony on the basis of her eye-witness account and circumstantial evidence had remained unchallenged and irreversible---Convictions of accused and their sentence under S.11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, were upheld, but their death sentence under S.10(4) of the said Ordinance was converted into imprisonment for life on account of mitigating circumstances---Appeal was disposed of accordingly.

Mian Muhammad Sikandar Hayat for Appellants.

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

Date of hearing: 22nd April, 2008.

PCrLJ 2009 FEDERAL SHARIAT COURT 263 #

2009 P Cr. L J 263

[Federal Shariat Court]

Before Muhammad Zafar Yasin and Syed Afzal Haider, JJ

KHALIL AHMED and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.309/I of 2006, decided on 22nd May, 2008.

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

----Ss. 11 & 10(3)---West Pakistan Family Courts Act (XXXV of 1964), S.21(3)(a)---Appreciation of evidence---Main accused was competent to enter into contract of marriage with the alleged abductee after 90 days of the-receipt of the copy of the decree for the dissolution of marriage by the Chairman, as stipulated in S.21(3)(a) of the West Pakistan Family Courts Act, 1964---Documentary evidence placed on record had destroyed the very foundation of the prosecution case as the abductee was the lawfully wedded wife of the main accused on the day of the alleged occurrence---Co-accused, real brother of main accused, therefore, could not be involved in committing Zina-bil-Jabr with his own sister-in-law and that too within the knowledge of main accused for whom a complex and protracted legal battle had been fought---Question of Zina-bil-Jabr did not arise when the abductee had been repeatedly admitting herself to be the wife of the main accused---Prosecution version which, in the entire trial had acquired a focal status, had not only to be plausible but coherent as well and built-in improbabilities could not be safely relied upon---Narration of facts should be natural and appealing to prudent persons---Conviction of accused could not possibly be based on questionable, unconvincing or a dubious story---Accused were acquitted in circumstances.

(b) Criminal trial---

----Prosecution version---Nature and scope---Prosecution version in the entire trial acquires a focal status and has therefore, not only to be plausible but coherent as well---Not safe to rely upon built-in improbabilities---Narration of facts should be natural and appealing to prudent persons; it is well nigh impossible to base conviction on questionable, unconvincing or a dubious story.

Tariq Mehmood for Appellant.

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

Date of hearing: 7th May, 2008.

PCrLJ 2009 FEDERAL SHARIAT COURT 322 #

2009 P Cr. L J 322

[Federal Shariat Court]

Before Syed Afzal Haider, J

Mst. ASIYA BIBI----Petitioner

Versus

ALAM KHAN and 4 others ----Respondents

Criminal Revision No.19/L of 2006, decided on 19th November, 2008.

Criminal Procedure Code (V of 1898)---

----S. 203---Penal Code (XLV of 1860), S.365---Dismissal of complaint---Complaint filed by the petitioner was dismissed by the Trial Court holding that no case could be got registered against a father for abduction of any of his children and provisions of S.365, P.P.C. could not be said to be attracted in the case---Validity---Complaint had shown that four accused persons, other than father of complainant, were alleged to have caught hold of the complainant in order to take her along with them---Motive behind the offence was that accused/father of the complainant, wanted to force her to marry someone against her wish---Complaint clearly showed that it was at the instigation of her accused father that four accused persons came to abduct her---Complainant was not living in the house of her father, but she was living in the house of her maternal-uncle and maternal-grandfather because her father had divorced her mother after her birth; and since then she was living in the house of her maternal-grandfather---Suit of the complainant against her father for maintenance had also been decreed and execution of the decree was in process---Trial Court while dismissing the complaint had not considered such aspects of the case---No case of abduction could be registered against a father, provided the children were living with him and were in his protective custody, but if a child was abandoned by the father, the father would lose the right of custody---If father after lapse of some years when the abandoned child would come of age, a right would not abruptly crop up in favour of the father to marry his daughter---No right would accrue to the father to forcibly remove his abandoned daughter from the lawful and protective custody of her maternal uncle and maternal-grandfather who had maintained her throughout the period of infancy, childhood and the youth---Father could not compel his daughter to marry against her will, especially when complainant/ daughter was sui juris---Father had no right to take the law in his own hands and seek assistance of hired persons to forcefully remove his daughter for the purpose of forcing her to enter into marriage against her will---History of litigation existed between the complainant daughter and her father which had shown that the father did neither maintain his daughter (complainant) for considerable period nor extended paternal affection during that period---Complainant could not be deprived of right of proving her case through private complaint---Impugned order passed by the Trial Court, was set aside with direction to the Trial Court to issue process and proceed with the Trial---Trial must be conducted within specified period.?

Bashir Abbas Khan for Petitioner.

Ahmad Awais Khurram for Respondents.

Arif Karim D.P.-G. for the State.

Date of hearing: 19th November, 2008.

PCrLJ 2009 FEDERAL SHARIAT COURT 357 #

2009 P Cr. L J 357

[Federal Shariat Court]

Before Haziqul Khairi, CJ

SAROOP CHAND----Applicant

Versus

THE STATE----Respondent

Criminal Revision No.1/K of 2007, decided on 6th November, 2008.

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

----Art. 4---Punjab, N.-W.F.P. and Balochistan Prohibition (Enforcement of Hadd) Rules, 1979, R.12(Part-II)---Sindh Prohibition Rules, 1979, R.11(b)---Criminal Procedure Code (V of 1898), Ss.435 & 439---Appreciation of evidence---Accused was a Hindu who was in possession of a meagre quantity of Desi Sharab meant for his personal consumption and he could have obtained a permit under R.12(Part-II) of Punjab, N.-W.F.P. and Baluchistan Prohibition (Enforcement of Hadd) Rules, 1979, but he was a resident of Sindh, he could have only obtained intoxicating liquor on or at a ceremony prescribed by his religion under R.11(b) of the Sindh Prohibition Rules, 1979---Desi Sharab recovered from the applicant being not for commercial purpose, but only for personal consumption in meagre quantity and also in view of submissions made by the counsel for the parties, Federal Shariat Court taking lenient view of the matter, reduced the sentence of the applicant to already undergone by him subject to payment of Rs.1,000 as fine.

Manzoor Ahmed Khan for Applicant.

Farid-ul-Hassan, A.A.-G. Sindh for the State.

PCrLJ 2009 FEDERAL SHARIAT COURT 435 #

2009 P Cr. L J 435

[Federal Shariat Court]

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

UMAR GUL----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.5/P of 2004, decided on 28th November, 2008.

Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), S.512---Appreciation of evidence--Witness, who appeared subsequently as prosecution witness would be subjected to cross-examination in respect of previous examination-in-chief, but in the present case prosecution witnesses produced earlier were not available in the subsequent regular proceedings for which no plausible reason was given by the prosecution---Deposition of said prosecution witnesses under S.512(1), Cr.P.C. could not be accepted or taken into consideration because accused had no opportunity to cross-examine them---Deposition of prosecution witnesses could not be totally rejected where it was favourable to accused and helpful in his defence---Fact that complainant purposely delayed reporting of the murder and allowed his son and grandson to become fugitive from law could not be ruled out--When both accused persons were arrested and faced the trial, the complainant took U-turn and came out with version different from his statement in F.I.R. and under S.512, Cr.P.C.---Complainant elected to become a defence witness and his testimony as defence witness entirely negated his statement under S.512, Cr.P.C. and F.I.R. in which he had accused his son of murdering his wife---Defence of alibi put up by accused was on the face of it self-defeating, contradictory, concocted and false, not supported by tangible evidence and liable to be rejected outrightly---Non-production of witnesses examined under S.512, Cr.P.C. in subsequent regular trial could create doubts to the prosecution case unless plausible grounds as contained therein were disclosed---Non-production of witnesses was not fatal to the prosecution case as they were marginal witnesses---Though no eye-witness account was available of murder of deceased at the hands of accused, but irrebutable and overwhelming circumstantial evidence was available against accused establishing beyond any shadow of doubt that accused had murdered his wife and his attempt to save himself from the clutches of law had ultimately failed--Conviction and sentence of accused was upheld, in circumstances.

Irshad Mahmood v. The State 1991 MLD 1993 and Sher Muhammad alias Shera v. The State 1997 PCr.LJ 259 ref.

Ajmal Khan for Appellant.

F.M. Sabir for the State.

Date of hearing: 30th October, 2008.

PCrLJ 2009 FEDERAL SHARIAT COURT 449 #

2009 P Cr. L J 449

[Federal Shariat Court]

Before Syed Afzal Haider, J

SAEED alias GULDANG and 2 others----Appellants

Versus

THE STATE and others----Respondents

Criminal Appeal No.30/P of 2007, decided on 7th November, 2008.

Penal Code (XLV of 1860)---

----S. 392---Appreciation of evidence---Benefit of doubt---Trial Court had not given any finding in its judgment on the basic ingredients of robbery as provided by S.390, P.P.C.---Complainant had neither in his statement before the police at the time of recording the crime report, nor even at the time of deposing before the Trial Court either alleged element of restraint, fear of death or instant hurt against the accused---Robbed cycle, gas cylinder and currency, recovered by the police, were not produced in the Court and were not identified by the complainant---Even complainant had not substantiated his claim of ownership of the robbed cycle either by a purchase receipt or through producing as witness the shopkeeper who had sold the cycle to him---Element of theft itself being doubtful and the element of force, restraint or fear of injury being not available on record, impugned judgment could not be safely relied upon---Evidence of both the victims of alleged robbery was contradictory and destructive to the prosecution case---Prosecution case was replete with doubts and accused were acquitted on benefit of doubt accordingly.

Anis Muhammad Shehzad for Appellants.

Muhammad Sharif Janjua for the State.

Date of hearing: 7th November, 2008.

PCrLJ 2009 FEDERAL SHARIAT COURT 462 #

2009 P Cr. L J 462

[Federal Shariat Court]

Before Syed Afzal Haider, J

ATTAR KHAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.106/I of 2002, decided on 22nd January, 2009.

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

----S. 11---Accused acquitted on repentance and acceptance of the same by complainant--Accused had moved an application at police station alleging that complainant had committed "Zina-bil-Jabr" with his granddaughter---After investigation complainant was found innocent and he was discharged from the case by Magistrate---Complainant then filed a private complaint against the accused wherein the accused had been convicted under S.11 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 and sentenced to six months' simple imprisonment with a fine of Rs.10,000 by Sessions Court vide the impugned order---Trial Court after convicting the accused had released him on bail on account of his advanced age subject to filing of appeal---Accused while being present in Federal Shariat Court on bail repented for what he had done--Son of the complainant was also present in person in the Court and. was the father of the girl about whom the accused had alleged that his grandfather had committed Zina-bil-Jabr with her---Accused who was four years less than 100 years of age had made repentance about the allegation made by him and tendered conditional apology in open Court and even to the father of the said girl and promised to tender apology to the complainant as well on his return to the village---Accused had also voluntarily imposed a penalty of Rs.2,500 upon himself to be given to the complainant, in token of his sincere repentance---Complainant's son had received the money in Court---Gesture of the complainant in accepting the apology and not insisting upon the execution of the sentence amounted to settling the issue once for all and was another form of alternate dispute resolution in the larger interest of peace in the village where the parties had to live---Accused was acquitted in circumstances.

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

----Preamble---Out of the four Hudood laws, the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, is the only law which falls in the category of "Haqooq-ul-Ibad", which means that the complainant i.e., the aggrieved person can forgive the accused at any stage of the criminal proceedings in the case.

----S. 11---Qazf---Case falling within the category of "Haqooq-ul-Ibad"---Complainant can forego his right---Complainant is free to forego his right at any stage of the trial provided the case falls within the category of "Haqooq-ul-Ibad"---Right to reputation is an original personal right---In such a case of dispute in which the public rights and private rights are mixed up, private right preponderates---Essential feature of such right is that the offence complained of causes sorrow or harm to an individual and the person injured can pardon the offender or even accept money in satisfaction of the injury caused to him---Complainant has the right to enforce or waive punishment.

Zahoor Ahmed Bokhari for Appellant.

Miss. Shabnum Rasheed Abbasi, Dy. P.-G. for the State:

Date of hearing: 22nd January, 2009.

PCrLJ 2009 FEDERAL SHARIAT COURT 894 #

2009 P Cr. L J 894

[Federal Shariat Court]

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

ABID MAHMOOD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.269/I of 2005 and Murder Reference No.13/I of 2005, decided on 27th February, 2009.

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

---Ss. 302(b)/377/511---Appreciation of evidence---Last-seen evidence---For basing conviction upon "last-seen evidence", the circumstantial evidence must he incompatible with innocence of accused and should be accepted with great caution to be scrutinized minutely for reaching a conclusion that no plausible conclusion could be drawn therefrom excepting guilt of accused---Chain of facts be such that no reasonable inference could be drawn therefrom except that accused had committed the offence after victim was last-seen in his company---Evidence in the first instance be fully established and the circumstances so established should be consistent only with the hypothesis of the guilt of accused and the circumstances should be of such a nature as to reasonably exclude every hypothesis except the guilt of accused.

Sh. Muhammad Amjad v. The State PLD 2003 SC 704; PLD 1977 SC 515; 2000 SCMR 1784; 1996 MLD 627 and 1989 PCr.LJ 39 rel.

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

----Ss. 302(b)/377/511---Criminal Procedure Code (V of 1898), S.164---Qanun-e-Shahadat (10 of 1984), Arts.37 & 34---Extra-judicial confession---Purpose of making extra-judicial confession---One of most important and natural purpose of making extra-judicial confession was to seek help from a third person---Help was sought, firstly, when a person was sufficiently trapped; and secondly, from one who was authoritative, socially or officially---In the present case before whom the confessions were said to have been made, were of no social or official status---Extrajudicial confession had almost become a norm when the prosecution could not otherwise succeed---When Investigating Officer would fail to properly investigate the case, he would resort to padding and concoction like extra-judicial confession---Such confession by now had become the sign of incompetent investigation--Judicial mind, before relying upon such weak type of evidence of extra-judicial evidence which was capable of being effortlessly procured, must ask a few questions, like why accused would at all confess; what was the time-lag between the occurrence and the confession, whether accused had been hilly trapped during investigation before making confession; what was the nature and gravity of the offence involved; what was the relationship or friendship of the witnesses with the maker of confession; and what, above all, was the position or authority held by the witness.

Sajid Mumtaz v. Basharat 2006 SCMR 231 rel.

----Ss. 302(b)/377/511---Appreciation of evidence--- Deposition of prosecution witness showed that it was all cock and bull story fabricated by the prosecution---Version of accused was that he was an employee of the Masjid Committee of which complainant who was father of deceased was the President who had dispute with those belonging to "Tablighee Jamat", whereafter he was removed by the Committee, since then, the members of the Committee became enemies and he was not even on talking terms with them---Contradiction existed to the date of arrest of accused between the testimony of the prosecution witnesses---Prosecution witness was an illiterate person and had no official and high social status to influence the police in any manner---Accused had strained relation with said prosecution witness, and it would be inconceivable that he would approach accused with the sole object to take him to police station to surrender himself before the police authorities and secure him from the physical torture of police---On arrest of accused Rs.70 and a Chaddar were allegedly recovered from accused on personal search and thereafter accused allegedly led the police party where recoveries of locket and a chain were made---Nothing was in the F.I.R. about money and other said articles, however, same was maintained in second statement of the complainant---No private person whosoever was made a witness to the recoveries for which no explanation had been offered---Said locket and the chain were not sealed as per Investigating Officer---Prosecution had failed to produce two material witnesses for which no plausible explanation was offered by the prosecution---Evidence of extra-judicial confession and last-seen evidence having been disbelieved, recoveries alone could not prove the guilt of accused-Impugned judgment whereby accused was convicted and sentenced by the Trial Court, was set aside and jail authorities were directed to release accused.

Malik Rab Nawaz Noon for Appellant.

M. Bashir Peracha for the Complainant.

Ms. Rukhsana Malik, Addl. P.-G. for the State.

Date of hearing: 22nd January, 2009.

PCrLJ 2009 FEDERAL SHARIAT COURT 919 #

2009 P Cr. L J 919

[Federal Shariat Court]

Before Syed Afzal Haider, J

TANVEER AHMAD and 9 others----Petitioners

Versus

THE STATE and another----Respondents

Criminal Revision No. 11/L of 2007, decided on 20th January, 2009.

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

----Ss. 11/l0(4)---Criminal Procedure Code (V of 1898), Ss.164 & 512---Qanun-e-Shahadat (10 of 1984), Art.47---Constitution of Pakistan (1973), Art.203-DD---Trial Court had dismissed the application of accused for acquittal under S.265-K, Cr.P.C. on the ground that despite non-availability of the deceased victim, her previous statement recorded under S.164, Cr.P.C. was material and was relevant even without any cross-examination by the accused, in view of the principle laid down in S.512, Cr.P.C. and Art.47 of Qanun-e-Shahadat, 1984---Validity---Statement of the victim, now dead, recorded under S.164, Cr.P.C. during enquiry, in the absence of accused without cross-examination, could not be treated as substantive piece of evidence capable of being corroborated by reinforcing evidence---In absence of substantive evidence itself, corroborative evidence would not suffice to convict the accused---Trial Court was also not justified in invoking the provisions of S.512, Cr.P.C., purpose of which is to preserve the recorded evidence against the accused who had absconded and there was no immediate prospect of his being apprehended, and then such deposition could be given in evidence only if the deponent was dead or his evidence could not be procured without any amount of delay, expence or inconvenience---Even the evidence recorded in the absence of accused, when he was not a proved absconder, whose veracity had not been tested on the touchstone of cross-examination, could not be availed under Art.47 of the Qanun-e-Shahadat, I984---Impugned order was consequently set aside, application of accused filed under S.265-K, Cr.P.C. was accepted and they were acquitted accordingly.

Ghulam Muhammad v. The State 1992 PCr.LJ 2394 and Mst. Naheed Mehmood alias Shahbo v. Mehmood Khan 1991 PSC 1036 ref.

(b) Criminal trial---

----Evidence Supportive evidence is only complementary in character and is employed to supplement some substantive evidence---Corroborative evidence does not corroborate another corroborative piece of evidence.

----S. 512---Record of evidence in absence of accused---Purpose----Purpose of S.512, Cr.P.C. is to preserve the recorded evidence against the accused who has absconded and there is no immediate prospect of his being apprehended, and then such deposition can be given in evidence only if the deponent is dead, or his evidence cannot he procured without any amount of delay, expense or inconvenience.

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

----Art. 47---Relevancy of certain evidence for proving in subsequent proceeding the truth of facts therein stated---Scope---Article 47 of Qanun-e-Shahadat, 1984 refers to another exception to the general rule as to the inadmissibility of indirect evidence---Article 47, Qanun-e-Shahadat, 1984 is based on the principle that the best possible evidence must always be considered for deciding the fate of a party---Article 47 would be applicable, if the proceeding was between the same parties or their representative-in-interest; if the adverse party had the right and opportunity to cross-examine, and if the questions in issue were substantially the same as in the second proceeding.

Mian Abdul Quddous for Petitioners.

Ch. Abdul Razzaq, Dy. P-G. for the State.

Date of hearing: 6th January, 2009.

PCrLJ 2009 FEDERAL SHARIAT COURT 959 #

2009 P Cr. L J 959

[Federal Shariat Court]

Before Syed Afzal Haider, J

ABDUL MAJEED alias MAKHAN and another----Petitioners

Versus

THE STATE and another----Respondents

Criminal Revision No.11/L of 2006, decided on 18th November, 2008.

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

----S. 16---Criminal Procedure Code (V of 1898), S.265-K---Appreciation of evidence---Alleged abductee had voluntarily stated before the Magistrate, that she had left the house of her parents of her own; and she had not been subjected to illicit intercourse nor she was abducted by any one---No mention was of element of force or enticement in the F.I.R. itself---Effect---Any statement if made subsequently, would amount to improvement and if alleged abductee would come in the court of law to state that she was never abducted or enticed away or she was never subjected to sexual intercourse by anyone, that would mean that any action against the petitioners/accused persons, would be sheer wastage of time---State counsel had not been able to point out any thing on record which could show that alleged abductee was allured or enticed away by any body---Impugned order passed by the Trial Court was set aside and petitioners were acquitted.

(b) Criminal trial---

----Mistake of Investigating Officer---Mistake on the part of Investigating Officer would not vitiate the trial, that would be at the worst an irregularity.

Ch. Nazir Ahmad Kamboh for Petitioners.

Ghulam Abbas Baloch for Respondent.

Syed Amanat Ali Bukhari, D.P.-G. for the State.

Date of hearing: 18th November, 2008.

PCrLJ 2009 FEDERAL SHARIAT COURT 1003 #

2009 P Cr. L J 1003

PCrLJ 2009 ISLAMABAD 475 #

2009 P Cr. L J 475

[Islamabad]

Before Sardar Muhammad Aslam, C.J. and Raja Saeed Akram Khan, J

Mst. SHAHEEN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.7/B of 2009, decided on 27th January, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of---Accused, a lady, was lodged in jail along with her two minor daughters aged 4 and 6 years, who had done no crime---None was available behind in the family to look after the minor daughters in a congenial atmosphere---Stay in jail and travel of the minor girls on each date of hearing to the Court with their mother, witnessing and coming across anti-social elements, was bound to tarnish their innocent mind and such bad memories would remain chasing them in their whole life---Court had to see future of the minor girls and save them from unfortunate miseries brought to them by their accused mother---"Charas" weighing 1750 grams was, though, recovered from the accused and chemical report was in positive, yet accused was admitted to bail mainly for the betterment of the minors, at the same time keeping in mind that she might have been duped into this business by some one for money consideration---Accused had no previous criminal record and perhaps she was a carrier---Bail petition was allowed in circumstances.

Muhammad Tariq Khan for Petitioner.

Raja M. Aleem Khan Abbasi, Standing Counsel.

Fazal-ur-Rehman, S.-I. with record.

PCrLJ 2009 ISLAMABAD 527 #

2009 P Cr. L J 527

[Islamabad]

Before Raja Saeed Akram Khan, J

YAR MUHAMMAD KHAN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous Nos.346/B to 351/B of 2008, decided on 16th January, 2009.

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

----S. 497---Penal Code (XLV of 1860), Ss.489-F & 406--Bail, grant of---Accused had already undergone more than two and a half years' imprisonment, whereas punishment provided for the offence under S.489-F, P.P.C. was upto three years---Validity---Application of S.406, P.P.C. added while framing the charge, would be determined by Trial Court after recording evidence---Contention that if Trial Court proceeded to inflict consecutive punishments in all the six cases against the accused, then his punishment would be of more than ten years, could not be considered at this stage, as such presumption was premature being the exclusive discretion of the Trial Court---Even after dismissal of bail applications of accused by Supreme Court about one and a half years back, there was no tangible progress in trial and he had now sought bail on the fresh ground of delay, which was not available to him earlier---Accused was admitted to bail in each case in circumstances.

Makhdoom Javed Hashmi v. The State 2008 SCMR 165 and Ali Sheharyar v. The State 2008 SCMR 1448 ref.

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

----S. 426---Suspension of sentence pending appeal---Practice and procedure---Convict who has already undergone almost half of his sentence may seek suspension of sentence in the interest of justice, keeping in view the facts and circumstances of a particular case.

Makhdoom Javed Hashmi v. The State 2008 SCMR 165 ref.

----Ss. 497 & 369---Successive bail applications---Scope---Fresh bail application can be moved at a subsequent stage on the grounds not available at the time of filing of earlier bail application---Order passed on subsequent bail application would not amount to review of the earlier order on the bail application, as S.369, Cr.P.C. does not apply to such orders.

Ch. Muhammad Ayub Arbab Gujjar for Petitioner.

Sh. Khizar Rasheed, Raja Rizwan Abbasi and Shahzad Siddiq for Complainants.

Abdul Rehman Minhas, Federal Counsel for the State.

Irshad Abro and Mansha Hussain S.-I. with record.

PCrLJ 2009 ISLAMABAD 598 #

2009 P Cr. L J 598

[Islamabad]

Before Sardar Muhammad Aslam, C.J. and Raja Saeed Akram Khan, J

Syed YOUSAF RAZA GILLANI----Appellant

Versus

THE STATE----Respondent

Criminal Accountability Appeal 'No.22-E of 2002, decided on 4th February, 2009.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 10, 18(g), 24(b) & 32---Chairman and Speaker (Salaries, Allowances and Privileges) Act (LXXXII of 1975), Ss. 7 & 8-A---Appreciation of evidence---Reference under Ss. 18(g) & 24(b) of National Accountability Ordinance, 1999 was sent to the Accountability Court for alleged commission of corruption and corrupt practices by Speaker of National Assembly under fraudulent purchase of fleet of luxury vehicles for the National Assembly Secretariat at inflated rates, illegal use of official vehicles and misuse of official telephone etc.---Investigating Officer had misunderstood the import of Ss.7 & 8 of Chairman and Speaker (Salaries, Allowances and Privileges) Act, 1975 to arrive at a finding that accused was entitled to use one car and telephone---Charges having not been proved beyond doubt against accused, he was entitled to acquittal---Accused was acquitted.

Barrister M. Bashir Kiyani for Appellant.

Abdul Basir Qureshi, A.P.-G., NAB and Raja M. Aleem Khan Abbasi, Standing Counsel for the State.

Dates of hearing: 13th, 15th, 19th, 20th, 22nd January, 2nd and 3rd February, 2009.

PCrLJ 2009 ISLAMABAD 612 #

2009 P Cr. L J 612

[Islamabad]

Before Raja Saeed Akram Khan, J

AURANGZAIB----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.411 of 2004, heard on 20th June, 2008.

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

----S. 302(b)/34---Appreciation of evidence---Accused allegedly after having failed in his attempt to kill the deceased with the shot fired with his carbine, commanded his sons to do so, as a result of which the deceased lost his life---Eye-witnesses were not consistent in their statements regarding the "Lalkara" made by the accused to his sons---Conduct of accused, who was himself armed with a carbine in asking his two young sons, one of whom was juvenile and the other was about to cross such age, to murder the deceased and himself being reluctant to do so, was amazing---No crime-empty was recovered from the spot---Co-accused, who was tried as being juvenile, had been acquitted by Trial Court of the charge, disbelieving the same set of evidence---Recovery of the fire-arm from the accused after two years of the occurrence was doubtful---Abscondence of accused although was very much relevant, yet the record was silent about any measures adopted by police to arrest him---Prosecution had thrown a wider net in order to implicate all the male members of the accused family---Evidence of high quality and good standard, necessary to connect the accused with the commission of offence, was lacking in the case---Impugned judgment resulting in conviction of accused was due to misreading and non-reading of evidence and the same was set aside in circumstances---Accused was acquitted accordingly.

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

----S. 302(b)/34---Appreciation of evidence---Benefit of doubt---Many instances of doubt in a case are not necessary and only one doubt about the involvement of accused is enough for his acquittal, if the same appeals to the mind of a prudent person.

----Principle---Any number of accused may escape unpunished for lack of sufficient evidence, but no innocent person should be punished for what he has not done---Doubts repel punishment.

Munir Ellahi Qureshi for Appellant.

Ch. Zahoor Hussain for the Complainant.

Malik Ishtiaq Ahmed, Federal Counsel for the State.

Date of hearing: 20th June, 2008.

PCrLJ 2009 ISLAMABAD 637 #

2009 P Cr. L J 637

[Islamabad]

Before Raja Saeed Akram Khan, J

PITRAS MASIH----Petitioner

Versus

THE STATE----Respondent

Writ Petition No.1458 of 2008, decided on 16th January, 2009.

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

----S. 516-A---Penal Code (XLV of 1860), Ss.420/468/471/411---Constitution of Pakistan (1973), Art.199---Constitutional petition---Superdari of car, grant of---Car in question was taken into custody by police under S.550, Cr.P.C. from the possession of the petitioner---No offence was found to have been committed during investigation qua the vehicle, nor the same was found to have been used in the commission of any offence---Petitioner seemed to be a bona fide purchaser of the car---Car was lying in the police station for the last few months, condition whereof was deteriorating day by day and it was susceptible to complete damage, if allowed to be retained with the police station---Main object of "Superdari" was to save the property from further damage---In the absence of any rival claimant, vehicle should ordinarily be given on "Superdari" to the person from whom it was taken into possession by the police---S.H.O. concerned was consequently directed to hand over the custody of the car to the petitioner subject to necessary conditions---Constitutional petition was allowed accordingly.

Malik Muhammad Rafique 1986 SCMR 1539 and Humayun Akhtar v. The State 1999 MLD 1676 rel.

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

----S. 516-A---Custody of vehicle on "Superdari"---Principle---In the absence of any rival claimant, vehicle should ordinarily be given on "Superdari" to the person from whom it was taken into possession by police authorities.

Malik Muhammad Rafique 1986 SCMR 1539 and Humayun Akhtar v. The State 1999 MLD 1676 ref.

Muhammad Aslant Uns for Petitioner.

Abdul Rehman Minhas, Federal Counsel.

Muhammad Akram.Ranjha, A.S.-I.

PCrLJ 2009 ISLAMABAD 648 #

2009 P Cr. L J 648

[Islamabad]

Before Raja Saeed Akram Khan, J

MUHAMMAD TAUQEER and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.389 and Criminal Revision No.167 of 2005, decided on 2nd December, 2008.

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

----Ss. 302(b) & 392---Circumstantial evidence---Last-seen evidence is a weak type of evidence and cannot be relied upon unless strongly corroborated.

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

----Ss. 302(b) & 392---Burden of proof---Burden to prove the case without any dent always lies on the prosecution.

----Ss. 302(b) & 392---Appreciation of evidence---Prosecution evidence consisted of evidence of last-seen and recoveries---Witnesses of last-seen evidence had failed to prove themselves as natural, independent and truthful witnesses and could not justify their presence on the relevant day at the concerned time and place---Evidence of said witnesses having major flaws, could not be termed as of unimpeachable character---Said witnesses amazingly had not disclosed the fact of having seen the deceased in the company of accused, either to the police or even, to the father of the deceased, despite one of them being closely related to the complainant---Articles recovered from near the dead body did not support the prosecution version, that the deceased was going to school at the time of occurrence---Re-summoning of the accused from judicial lock-up by Investigating Officer after obtaining physical remand for effecting recoveries had showed that fabrications were made in order to complete the chain of circumstantial evidence and to fill in the lacunas---No site plan of the place of last-seen was prepared to show, whether it was possible for the witnesses to see the deceased and the accused from the said place---In a case of circumstantial evidence no link in the chain should be missing and all the circumstances must lead to the guilt of accused, which was not the position in the instant case---Accused were acquitted in circumstances.

Mst. Reshman Bibi v. Sheerin Khan and others 1997 SCMR 1416; Sultan and others v. The State 1987 SCMR 1177; Muhammad Arshad v. The State 2008 PCr.LJ 1019; Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103; Tayyab Hussain Shah v. The State 2000 SCMR 683; Muhammad Mansha v. The State 1997 SCMR 617; Ali Khan v. The State 1999 SCMR 95; Nadeem v. The State 2006 SCMR 1197; Binyamin alias Khari and others v. The State 2007 SCMR 778 and Muhammad Akhtar v. The State 222007 SCMR 876 ref.

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

----Ss. 302(b) & 392---Appreciation of evidence---Principle---Circumstantial evidence---Evidence of last-seen in order to base conviction, being circumstantial evidence, must not be compatible with innocence of accused and the same should be accepted with great caution and be minutely scrutinized for concluding that no plausible conclusion is possible therefrom except guilt of the accused.

Mst. Reshman Bibi v. Sheerin Khan and others 1997 SCMR 1416 and Ali Khan v. The State 1999 SCMR 95 ref.

Malik Rabnawaz Noon and Asif Mehmood for Appellants.

Sahab Mohy-ud-Din for the Complainant.

Abdul Rehman, Federal Counsel for the State.

Date of hearing: 20th November, 2008.

PCrLJ 2009 ISLAMABAD 662 #

2009 P Cr. L J 662

[Islamabad]

Before Sardar Muhammad Aslam, C.J. and Raja Saeed Akram Khan, J

JEHANZEB----Appellant

Versus

THE STATE----Respondent

Criminal Appeals Nos.378, 459 and Murder Reference No.755 of 2002, decided on 3rd November, 2008.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---Occurrence was admitted---Motive was not denied---Ocular testimony was consistent on material particulars of the incident i.e. day, date, time, mode and manner---Eye-witnesses could not be disbelieved merely due to their relationship with the deceased---Prosecution version being more probable, confidence inspiring and near to truth, deserved preference over defence version, as the same was supported by ocular evidence, recovery of weapon and medical evidence---F.I.R. was promptly lodged---Action of accused in self-defence was neither supported by any material on record, nor the same inspired confidence, which right even otherwise was not available to him against the deceased who was armless---Both sides had concealed as to what had happened immediately before the incident and the principle of safe administration of criminal justice, thus, had brought the case out of normal penalty of death---Conviction of accused was maintained, but his sentence of death was reduced to imprisonment for life in circumstances.

Nadeem-ul-Haq Khan v. The State 1985 SCMR 510; Ahmed Din v. Faiz Ahmed and others 1972 SCMR 549; Muhammad Abdullah v. Muhammad Safder Khan and others 1973 SCMR 26; Mushtaq and others v. The State PLD 2008 SC 1; Liaqat Ali v. The State PLD 2008 SC 123; Muhammad Abbas alias Abbasio v. The State 2008 SCMR 1527 and Muhammad Dilbar v. The State 2002 SCMR 1425 ref.

Malik Rabnawaz Noon for Appellant.

Haider Mehmood Mirza for the Complainant.

Amjed Iqbal Qureshi, Dy. A.-G. for the State.

Date of hearing: 20th October, 2008.

PCrLJ 2009 ISLAMABAD 780 #

2009 P Cr. L J 780

[Islamabad]

Before Raja Saeed Akram Khan, J

Syed AZMAT HUSSAIN SHAH----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.343/B of 2008, decided on 13th November, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 345---Penal Code (XLV of 1860), S.377/34---Bail, grant of---Complainant had himself appeared before the court and affirmed the contents of affidavit sworn by him regarding compromise with accused---Case though was not compoundable and did not fall within the ambit of S.345, Cr.P.C., however when the complainant did not want to pursue the matter further and had forgiven accused by entering into compromise outside the court, his statement/affidavit could be considered as one of the relevant factors for grant of relief to accused at bail stage---Accused was admitted to bail in circumstances.

M. Tanvir Chaudhry for Petitioner.

Complainant in person.

Abdur Rehman, Federal Counsel for the State.

Ilyas, S.-I., with record.

PCrLJ 2009 ISLAMABAD 793 #

2009 P Cr. L J 793

[Islamabad]

Before Sardar Muhammad Aslam, C.J. and Raja Saeed Akram Khan, J

SHABBIR HUSSAIN and 4 others-Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.9 of 2008, heard on 18th December, 2008.

Penal Code (XLV of 1860)---

----Ss. 302(b), 460, 309 & 310---Criminal Procedure Code (V of 1898), S.345---Compromise---Compromise having been arrived between accused and legal heirs of deceased, application seeking permission for compromise filed by accused was referred to Sessions Judge, who, after recording the statement of legal heirs of deceased, reported that the compromise was genuine; and that it was in the interest of justice that same should be allowed---Compromise between the parties having been entered into without any coercion or pressure and with free consent of the legal heirs of the deceased, it was in the interest of justice that such compromise be accepted---Accused were behind the bars since 7-2-2005 and others having been declared by the Police innocent during investigation, justice would be fully met if the sentence awarded to accused was reduced to already undergone by them---Maintaining conviction of accused, sentence was reduced to already undergone by them.

Imdad Hussain v. State PLD 2008 Lah. 450 ref.

Malik Rab Nawaz Noon and M. Tanvir Chaudhry for Appellants.

Raja M. Aleem Khan Abbasi, Standing Counsel for the State.

Date of hearing: 18th December, 2008.

PCrLJ 2009 ISLAMABAD 875 #

2009 P Cr. L J 875

[Islamabad]

Before Syed Intikhab Hussain Shah, J

Haji RAJA MUBARIK----Appellant

Versus

Dr. ENAYAT HUSSAIN and 8 others----Respondents

P.S.L.A. No.20 of 2004 in Criminal Appeal No.58 of 2007, decided on 22nd April, 2009.

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

----Ss. 420, 468, 471, 409 & 21---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal Law Amendment Act (XL of 1958), S.6(5)--Cooperative Societies Act (VII of 1925), S.65-B---Criminal Procedure Code (V of 1898), Ss.417 & 197---Appeal against acquittal---Special Judge dismissed complaint and acquitted respondents/accused persons, observing that complaint could not proceed in the light of the refusal of the government to grant sanction for prosecution---Special Judge while acquitting respondents, had further held; that respondents were not public servants and offence, if any, with which they were charged had not been committed in their capacity of government employees; that since the respondents were not public servants, so prior permission for prosecution was not required; and even otherwise sanction for prosecution had been refused by competent authority; and that civil suit for recovery of amount filed by the appellant/complainant stood dismissed by the civil court---Validity---Held, there was no denial of the fact that respondents/accused were office bearers of Pakistan Medical Co-operative Housing Society at the relevant time and according to S.65-B of Co-operative Societies Act, 1925 every officer of a society would be deemed to be a public servant---Accused, in circumstances, were public servants and Special Judge passed impugned orders by ignoring provisions of S.65-B of Cooperative Societies Act, 1925---Requirement of prior sanction before prosecution of a government servant had been provided under S.197, Cr.P.C. and under subsection (5) of S.6 of Criminal Law Amendment Act, 1958 and said provisions of law had already been declared repugnant to injunctions of Islam---No prior sanction was thus, required before prosecution of respondents/accused persons---Criminal proceedings had their own course and had no nexus with civil proceedings---Special Judge had not acted in a manner he was required to act and had passed the impugned order which had shown non-adherence to and non-application of law---Impugned order was set aside holding that the complaint filed by the appellant/complainant would be deemed to be pending before the Special Judge, who would proceed afresh according to law.

Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad v. Zafar Awan, Advocate, High Court PLD 1992 SC 72 and PLD 1992 Kar. 167 ref.

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

----Art. 189---Decision of Supreme Court, binding force of----Decision of Supreme Court was binding on all other courts.

Sardar Muhammad Ishfaq Abbassi for Appellant

Sardar Arshad Mahmood and Sardar Shoukat I1ayat for Respondents.

Date of hearing: 1st April, 2009.

PCrLJ 2009 ISLAMABAD 910 #

2009 P Cr. L J 910

[Islamabad]

Before Sardar Muhammad Aslam, CJ

Mst. SOBIA ILYAS----Petitioner

Versus

THE STATE and 7 others----Respondents

Writ Petition No.1471 of 2008, decided on 28th November, 2008.

Constitution of Pakistan (1973)---

----Art. 199(1)(b)(i)---Petition for issuance of a writ in the nature of Habeas Corpus---Petitioner being wife of detenu had filed petition, seeking direction for respondents to produce the detenu in the court---Detenu was an accused in case F.I.R. registered under Ss.302, 324, 427, 436 & 109, P.P.C., under Ss.3/4 of Explosive Substances Act, 1908 and S.7 of Anti-Terrorism Act, 1997 and his physical remand was granted with direction to produce him before the court---On appointed date detenu was not produced, however Superintendent Jail sent a letter to the effect that on account of involvement of detenu in sectarian matters, it was not possible to bring him out of jail---Detenu had been charged with sensitive offences and from examination of record, prima facie, it appeared that sufficient material was available against him---Petitioner/wife of detenu, in circumstances could not safely urge that the detenu was under an illegal detention.

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

Hafeez Khan for Petitioner.

Raja M. Aleem Khan Abbasi, Standing Counsel.

Wajahat Khan, Assistant Superintendent Central/Adyala Jail, Rawalpindi and M. Altaf inspector/S.H.O. with record.

PCrLJ 2009 ISLAMABAD 938 #

2009 P Cr. L J 938

[Islamabad]

Before Raja Saeed Akram Khan, J

NAZIR KHAN and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.454/B of 2008, decided on 27th January, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)----Penal Code (XLV of 1860), Ss.458, 395 & 412---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.20---Bail, grant of---Further inquiry---Benefit of doubt---Unexplained delay of 7 days in lodging F.I.R., which was fatal to prosecution case---Prosecution story showed that during the resistance at the time of occurrence the mufflers of accused were removed from their faces, but even then complainant did not nominate the persons on very first day; and they had later on been involved on receiving some information; whereas no source of information had been given, which had made the case of accused as doubtful---After the arrest, accused was never put to the test of identification to rule out the possibility of his false involvement---Accused though remained involved in some other cases of similar nature, but no conviction had been passed in any case--Accused was behind the bars since long and challan had not been submitted in the court---Prima facie, it appeared to be a case of further inquiry which fell under the purview of S.497(2), Cr.P.C.---Benefit of doubt arising in the case could be given even at bail stage--Bail could not be withheld as a punishment---Investigation of the case had been completed and accused was no more required for further investigation and his further detention in jail would serve no useful purpose to the prosecution---Accused was admitted to bail, in circumstances.

Hamid Ahmad for Petitioner No.1.

Ajmal Khan Khattak for Petitioner No.2.

Abdul Rehman, Federal Counsel and Gulzar S.-I. with record for the State.

PCrLJ 2009 ISLAMABAD 980 #

2009 P Cr. L J 980

[Islamabad]

Before Raja Saeed Akram Khan, J

MUHAMMAD NAZIR KHAN----Petitioner

Versus

TILE STATE -Respondent

Criminal Miscellaneous No.47/B of 2009, decided on 4th March, 2009.

Criminal Procedure Code (V of 1898)---

---S. 497---Penal Code (XI.,V of 1860), Ss.395, 412 & 458---Bail, refusal of---Accused was arrested after getting the record of stolen mobile phones---During investigation, recovery of looted articles, i.e., bangles, cash and cell phones had been effected from accused and those articles were duly identified by the complainant--No enmity came on record to falsely implicate accused---Record had revealed that accused was also involved in number of other cases of similar nature---Accused seemed to be a habitual offender---Deeper appreciation was not warranted under the law at bail stage and only bird's eye view was to he made---Sufficient material was available on record to believe that accused had committed offence which fell under the prohibitory clause of S.497, Cr.P.C.---Challan had been submitted in the court---Bail application was dismissed, in circumstances.

Ajmal Khan Khattak and Hamid Ahmed for Petitioner.

Abdul Rehman Minhas, Federal Counsel and Mubarak S.-I. with record for the State.

PCrLJ 2009 ISLAMABAD 1041 #

2009 P Cr. L J 1041

[Islamabad]

Before Raja Saeed Akram Khan, J

NAZIR KHAN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.47/B of 2009, decided on 4th March, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.395, 458 & 412---Bail, refusal of---Accused was arrested after getting the record of stolen mobile phones---During investigation recovery of looted articles i.e. bangles, cash and cell phones had been effected from accused and those articles were duly identified by She complainant---No enmity came on record to falsely implicate accused---Record revealed that accused was also involved in number of other cases of similar nature---Accused seemed to be a habitual offender---Deeper appreciation was not warranted under the law at bail stage and only bird's eye view was to be made---Sufficient material was available on record to believe that accused had committed the offence which fell under the Prohibitory clause of S.497, Cr.P.C.---Challan had been submitted in the Court---Bail was refused.

Ajmal Khan Khattak and Hamid Ahmed for Petitioner.

Abdul Rehman Minhas, Federal Counsel.

Mubarak S.-I. with record.

PCrLJ 2009 ISLAMABAD 1130 #

2009 P Cr. L J 1130

[Islamabad]

2009 P Cr. L J 21

[Karachi]

Before Abdur Rahman Faruq Pirzada and Ghulam Dastagir A. Shahani, JJ

MUHAMMAD SHAHEEN alias SHAN----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.26 and M.A. No.1527 of 2007, decided on 12th August, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.365-A---Bail, grant of---Admittedly the petitioner did not demand any ransom, directly from the complainant, nor any ransom amount was actually paid; as such, the question of applicability of S.365-A, P.P.C. would require further probe in the matter---Applicant along with abductee was arrested on the same day from the front of a hotel situated on a busy road, where presumably several persons may have been present---Admittedly neither the abductee raised any cry nor she made any complaint to any person regarding her alleged abduction or wrongful restraint---Bail was granted to the petitioner, in circumstances.

Muhammad Abbass and another v. The State PLD 1988 SC (AJ&K) 14; Manzoor and others v. The State PLD 1972 SC 81 and Ameer v. The State PLD 1972 SC 277 rel.

Noor-ul-Haq Qureshi for Applicant.

Muhammad Azeem Panhwar, State Counsel.

Complainant in Person.

PCrLJ 2009 KARACHI HIGH COURT SINDH 47 #

2009 P Cr. LJ 47

[Karachi]

Before Farrukh Zia G. Shaikh, J

MEHAR alias MEHAAR----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.193 of 2008, decided on 15th August, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Juvenile Justice System Ordinance (XXII of 2000), S.10(7)(a)---Penal Code (XLV of 1860), Ss.302 & 324/34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(2)---Bail, grant of---Medical certificate showed that on the day of examination, age of petitioner was found to be 16 to 17 years and from the certificate it was established, that at the time of commission of offence, petitioner was a child less than 18 years of age---In the present case, petitioner was in custody since November, 2003, whereas it was clearly provided under S.10(7)(a) of Juvenile Justice System Ordinance, 2000, that a child accused of an offence punishable with death becomes entitled to bail if he remained in custody for a continuous period exceeding one year and his trial had not been concluded---Accused, who came within the definition of "child", was entitled for grant of bail, even if involved in case punishable with death and such concession was subject to limitations contained in the said Ordinance---Bail was granted to accused in circumstances.

Sikandar v. The State 2006 PCr.LJ 1648 and Wahid Bakhsh Khoso v. The State 2006 MLD 507 ref.

Nizamuddin Baluch for Applicant.

Abdul Haleem Qureshi for the Complainant.

Muhammad Iqbal Mahar, Asstt. A.-G. Sindh for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 79 #

2009 P Cr. L J 79

[Karachi]

Before Ghulam Dastagir A. Shahani, J

ABDUL QADIR Alias BABOO-Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.1147 of 2008, decided on 16th October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.392/34---Bail, refusal of---Amount worth Rs. one lac, copy of CNIC and .30 bore pistol had been recovered from accused who was identified and arrested on the pointation of the complainant---Only lodging of F.I.R. with delay, was not sufficient for grant of bail---Crime under S.392/34, P.P.C. of similar nature was already registered against accused with same Police Station---Complainant had identified accused on Close Circuit T.V. installation in the Bank---Even otherwise, there was no reason to disbelieve the version of the complainant party at bail stage, when no enmity was alleged against the complainant or police in respect of his false involvement---No deeper appreciation was required at bail stage and only tentative assessment was to be made, according to which prima facie reasonable ground existed for holding that accused participated in the crime and matter was not of further inquiry---Accused being not entitled for grant of bail, his bail petition was dismissed.

Bakhshal v. The State 2004 YLR 2238; Wasim Riaz v. The State 2004 PCr.LJ 668; Waris and 2 others v. The State 2000 PCr.LJ 642; Wazir and another v. The State 2001 PCr.LJ 1431; Fazal Ellahi and another v. The State 2004 SCMR 235; Punhoon and 3 others v. The State 2000 PCr.LJ 986 and Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182 ref.

Abdul Razzak for Applicant.

Ms. Farah Naz Qazi, State Counsel.

PCrLJ 2009 KARACHI HIGH COURT SINDH 86 #

2009 P Cr. L J 86

[Karachi]

Before Syed Mahmood Alam Rizvi, J

ABDUL GHAFOOR and others----Applicants

Versus

THE STATE----Respondent

Criminal Bail Applications Nos.624 and 634 of 2008, decided on 29th August, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/504/147/148/149/ 114/34---Bail, grant of---Accused had allegedly given a "Lathi" blow to the complainant which was not supported by any other evidence and he had not caused any injury to any other person---Other accused though armed with a pistol had not used the same and was only stated to have instigated others by raising a "Lalkara", which showed that he had no intention to injure or kill anybody---Delay in lodging the F.I.R. had indicated that the same had been registered after consultation---Case against the accused, therefore, needed further inquiry---Final challan had not so far been submitted in the Court and the charge had not been framed in the case---Accused could not be kept behind the bars for an indefinite period and they were allowed bail in circumstances.

Ghulam Ali v. Muhammad Yousuf 1987 SCMR 857; Tariq Parvez Butt v. Muhammad Sultan and others 1986 SCMR 1654; Muhammad Sadiq v. The State 1996 SCMR 1654; Farzand Ali v. Taj and others 2000 SCMR 1854; Sultan Ahmed v. The State 1981 SCMR 771; Muhammad Aslam v. State 2008 PCr.LJ 356 and Usman v. State 2001 PCr.LJ 359 ref.

M.A. Kazi for Applicant (in Criminal Bail Application No.624 of 2008).

Mahmood A. Baloch for Applicant (in Criminal Bail Application No.634 of 2008).

Muhammad Iqbal Kalwar, Addl. P.-G. for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 102 #

2009 P Cr. L J 102

[Karachi]

Before Dr. Qamaruddin Bohra, J

AWAL KHAN----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.1048 and M.As. Nos.3822, 3736 of 2008, decided on 15th September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497--Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 21---Bail, grant of---Accused being already in custody in some other case, led to the recovery of one hand bag containing 2.5 Kgs. of Charas' in big and small pieces---F.I.R. and the Mashirnama did not show that the case property and the sample taken from the same were weighed and sealed at the spot---Even the place of recovery was mentioned in the F.I.R.---Despite information in advance, no private person was associated as Mashir with recovery proceedings and S.21 of the Control of Narcotic Substances Act, 1997, had been violated---Sample of ten grams had been taken from the small piece ofCharas' weighing 500 grams and case against accused, therefore, certainly did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Accused was admitted to bail in circumstances.

2002 PCr.LJ 1086 and 2003 PCr.LJ 1139 ref.

Abdul Qadir Khan for Applicant.

Abdul Majeed Khan State Counsel for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 107 #

2009 P Cr. L J 107

[Karachi]

Before Dr. Rana Muhammad Shamim, J

Mst. RUBINA----Applicant

Versus

THE STATE and 2 others----Respondents

Criminal Revision Application No.8 of 2008, decided on 15th April, 2008.

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

----Ss. 6 & 7---Criminal Procedure Code (V of 1898), Ss.561-A & 439---Applicant/victim girl had made allegations that she was abducted, kept in illegal confinement and gang raped by accused persons nominated in the F.I.R.---Alleged victim was referred to Medical Superintendent for her medical check-up and she was duly examined by Gynaecologist and from the medical report it had fully been proved that applicant was gang-raped---Counsel for applicant/victim girl alleged that accused persons, who were very influential, had obtained a report from Investigating Officer for exonerating themselves---Investigating Officer submitted report under S.173, Cr.P.C. before Magistrate for the disposal of case in "B" Class---Investigating Officer, instead of helping the poor innocent young student orphan girl, mixed up with accused persons and tried to declare accused persons innocent---Investigating Officer for ulterior motives spoiled the case of prosecution and on the contrary implicated the orphan young girl for registration of case against her---Addl. Advocate-General also opposed impugned order of the Magistrate submitting that Investigating Officer had wilfully and deliberately conducted dishonest investigation and failed to perform his legal duties---Criminal revision application was converted into application under S.561-A, Cr.P.C. and allowing same impugned order was set aside---Immediate indulgence was solicited from R.P.O. concerned for assigning investigation of the case to an officer not below the rank of D.S.P.---Keeping in view the gravity of offence Court directed that case be challaned after honest investigation to Anti-Terrorism Court as provisions of Ss.6 & 7 of Anti-Terrorism Act, 1997, appeared to be attracted.

Syed Shafqat Ali Shah Masoomi for Applicant.

Ali Azhar Tunio Addl. A.-G. for the accused.

Accused Abdul Hameed present in person.

PCrLJ 2009 KARACHI HIGH COURT SINDH 112 #

2009 P Cr. L J 112

[Karachi]

Before Mrs. Yasmin Abbasey and Farruk Zia G. Shaikh, JJ

UMERTIAZ KHAN and another----Appellants

Versus

THE STATE----Respondent

Criminal Jail Appeal No.D-32 of 2006, heard on 7th August, 2008.

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

---Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Charas, in the present case was not concealed in any cavity of the bus, but it was in a bag which was carried and owned by accused persons---By virtue of S.25 of Control of Narcotic Substances Act, 1997, S.103, Cr.P.C. was not applicable in narcotic cases registered under the said Act---Even otherwise the law-enforcing agencies had to keep certain information secret till the last hours relating to the recovery and conducting raid at a particular place; and if such precautionary measures were not adopted and secret information about concealing or running business of narcotics etc. was allowed to spread out, there would be a raid, but without success as in the meanwhile accused persons would manage to shift the drugs to some other place---Generally the residents of locality would hesitate to become witness of recovery memo due to which Investigating Officer was left with no option, but to pick-up a witness from the police---Non-compliance of S.103, Cr.P.C. could not be considered a strong ground for holding that the trial of accused was bad in the eyes of law---In the present case 200 grams of Charas from each slab was, separated as sample and sealed separately while remaining 4800 grams Charas was sealed separately---No iota of doubt was on record that the entire 6 slabs of the seized material was Charas---Counsel for accused had not been able to satisfy the court that a delay was occasioned in sending the sample to the Chemical Examiner; neither any enmity had been shown between accused persons and the complainant---Burden of proof of allegation made by prosecution would rest on it and prosecution had to prove beyond reasonable doubt every element of the offence with which accused was charged; which had sufficiently been discharged by prosecution in the present case---Appeal was dismissed in circumstances.

Nek Muhammad and another v. The State PLD 1995 SC 516 and Gul Rehman v. The State 2005 PCr.LJ 21 ref.

(b) Maxim---

----"Actus non faci reum nisi mens sit rea: a deed would not make a man guilty unless his mind was guilty.

Shamsuddin Kobhar for Appellants.

Liaqat Ali Shar, A.A.-G. assisted by Fazal Muhammad Khokhar Special Public Prosecution for the State.

Date of hearing: 7th August, 2008.

PCrLJ 2009 KARACHI HIGH COURT SINDH 118 #

2009 P Cr. L J 118

[Karachi]

Before Arshad Noor Khan, J

Mst. RAFFIAT TARIQ----Petitioner

Versus

D.P.O. SANGHAR and 2 others----Respondents

Constitutional Petition No.S-185 of 2008, decided on 15th September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 491---Constitution of Pakistan (1973), Art.199---Constitutional petition---Alternate remedy---Scope---Custody of minor---Plea raised was that the minor was aged about 2-1/2 years and the petitioner/mother had a right of Hizanat to keep the custody of the minor---Validity---If the petition had been wrongly filed under Art.199 of the Constitution the High Court had all the powers to convert the same under S.491, Cr.P.C.---Mother had right of Hizanat irrespective of the fact that she may or may not maintain her child during the course of such period of Hizanat and the said right could not be snatched---Illegal terms and conditions, arrived at between the parties at the time of divorce, could not override the law of the land and the illegal terms and condition, if any, could not restrict the Court to compel the parties to follow the same, which otherwise had not been recognized under the law---High Court, in circumstances, while allowing the constitutional petition handed over the custody of the minor to the petitioner/mother.

Mst. Khalida Parveen v. Muhammad Sultan Mehmood and another PLD 2004 SC 1 rel.

Miss Razia Khan Bahadur for Petitioner.

Talib Hussain Arain for Respondent No.3.

Mumtaz Alam Leghari, Asstt. A.-G.

PCrLJ 2009 KARACHI HIGH COURT SINDH 123 #

2009 P Cr. L J 123

[Karachi]

Before Ghulam Dastagir A. Shahani, J

SAFDAR NAWAZ KHAN NIAZI----Applicant

Versus

THE STATE and another-Respondents

Criminal Revision Application No.62 of 2008, decided on 11th September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 514---Passports Act (XX of 1974), Ss.3 & 4---Forefeiture of surety bond---Applicant stood surety for an amount of Rs.1,00,000 for accused, who jumped the concession of bail and his whereabouts were not known to anyone---Trial Court imposed penalty of Rs.50,000 against the applicant/surety due to such abscondance of accused---Validity---Applicant/surety was bound to produce accused, as custody was transferred to him and it was voluntary act of the surety/applicant having offered himself as surety of the accused---Responsibility of the surety could not be minimized under any circumstance as surety must know the consequences of absconscion of the accused before offering himself as surety---Justice is not only be done to the accused or someone interested in him but justice is also to be done to the complainant side and the person interested---Leniency, could of course, be shown to a party where it was due but not at the cost of the justice required to be done in a given case where concession had already been extended---Applicant/surety had not been able to point out any irregularity and mala fide on the part of two forums below, while passing the impugned orders---High Court dismissed the petition against impugned order in circumstances.

Muhammad Safeer v. Faqir Khan and 2 others 2000 SCMR 312 and Zeeshan Kazmi V. The State PLD 1997 SC 267 rel.

Misri v. The State 1999 MLD 353 ref.

Rab Nawaz Khan Niazi for Applicant.

Asadullah Baloch State Counsel.

PCrLJ 2009 KARACHI HIGH COURT SINDH 130 #

2009 P Cr. L J 130

[Karachi]

Before Salman Ansari, J

SAJID ALI----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.1064 of 2008, decided on 8th October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.395/390/411/34---Bail, refusal of---Deposition of three prosecution witnesses including the complainant had been tagged with the bail application and on perusal of the same it was found that no case of bail had yet been made out---Sufficient evidence was available to show the involvement of accused in the case---Offence against accused fell within the prohibitory clause of S.497(1)., Cr.P.C.---Bail application, was rejected in circumstances.

Kabir Ghouri for Applicant.

Assadullah Baloch, State Counsel for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 134 #

2009 P Cr. L J 134

[Karachi]

Before Syed Mahmood Alam Rizvi, J

Syed NASEEM AHMED----Applicant

Versus

Mst. HUMA NOOR----Respondent

Criminal Revision Application No.34 of 2008, decided on 28th August, 2008.

Illegal Dispossession Act (XI of 2005)---

----Ss. 7(1) & 3---Sessions Court vide impugned order had directed the S.H.O. to get the possession of the plot restored to the respondent owner---Validity---Documentary as well as oral evidence recorded by the Trial Court and the police inquiry had prima facie, revealed that the petitioner had encroached upon some land of the plot of the respondent, but the case did not fall within the ambit of the Illegal Dispossession Act, 2005, because S.3 of the said Act was not attracted in the case--Petitioner as a result of wrong demarcation had constructed his house on some land of the respondent and Trial Court, as such, could not assume jurisdiction under the Illegal Dispossession Act, 2005---Impugned order was not sustainable and the same was set aside accordingly---Petitioner having not plausibly explained his encroachment on the said land of the respondent, he was directed to pay at least double amount of the encroached land to, the respondent against its market price to be determined by the Nazir of the Court.

Miss Tabussum Hashmat for Applicant.

S.M. Abbas Hyder for Respondent.

Haji Abdul Majeed, State Counsel.

PCrLJ 2009 KARACHI HIGH COURT SINDH 139 #

2009 P Cr. L J 139

[Karachi]

Before Syed Mahmood Alam Rizvi, J

Mst. AISHA KHATOON----Applicant

Versus

Mst. RAZIA and 5 others----Respondents

Criminal Miscellaneous Application No.30 of 2008, decided on 25th August, 2008.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Quashing of orders---Magistrate after recording the statements of the complainant and two witnesses had sent the private complaint to; the concerned S.H.O. for preliminary inquiry, but on account of very short time allowed to S.H.O. he could not conduct the inquiry---Magistrate dismissed the private complaint holding that it was a family dispute and that the complainant party had failed to appear before the S.H.O. for inquiry---Said order was maintained by Sessions Court in appeal vide impugned order---Validity---Enquiry could not be conducted by the S.H.O. for want of time and the Magistrate in haste rejected his prayer for -extension of time for conducting inquiry in. the private complaint, presuming that complainant was not prepared to appear before the S.H.O.---Validity---Inquiry should have been made in the complaint---Impugned orders were consequently set aside and the private complaint was directed to be transferred to some other Magistrate for proceeding in accordance with law.

Imtiaz Ali Effendi for Applicant.

Abdul Majeed for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 143 #

2009 P Cr. L J 143

[Karachi]

Before Ghulam Dastagir A. Shahani, J

SULTAN AHMED and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.S-160 of 2005, decided on 11th June, 2008.

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

----Ss. 302/34 & 460---Evidence---Corroboration---Corroboration need not come from an independent source but from any circumstance which can satisfy the Court to believe that the witness has spoken the truth.

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

----Ss. 302/34 & 460---Appreciation of evidence---Occurrence had taken place in odd hours inside the house of complainant party---Accused being known to prosecution witnesses, question of his misidentification could not arise---Promptly lodged F.I.R. was sufficient proof of the presence of prosecution witnesses at the scene of occurrence---Accused was nominated in the F.I.R. armed with a gun and was shown by the evidence to have entered into the house of the complainant at odd hours of the night and fired at the deceased and he was identified in the light of an electric bulb---Eye-witnesses had fully supported the version of the complainant---Recovery of the gun at the instance of accused, of the crime-empty from inside the compound wall of the house and medical evidence had corroborated the ocular testimony---Impugned judgment did not suffer from any illegality or infirmity---Conviction and sentence of accused were maintained in circumstances.

Dholu and another v. The State 2002 PCr.LJ 690; Muhammad Arif v. The State 2007 PCr.LJ 432; Muhammad Ishaque v. The State 2007 SCMR 108; Mst. Sajida Bibi v. The State 2007 PCr.LJ 1231; Qudratullah v. Maisam and another 2005 PCr.LJ 1667 and Hidayat Ali and others v. The State 1994 PCr.LJ 1112 distinguished.

2005 PCr.LJ 337; 2007 SCMR 108 and 2005 PCr.LJ 1667 ref.

----Ss. 302/34 & 460---Appreciation of evidence---Benefit of doubt--Accused, according to prosecution was armed with a hatchet with which he caused injury on the person of the deceased---Medical evidence had contradicted the said version and created doubt about the same---Hatchet could be easily foisted upon the accused during recovery proceedings---Accused was acquitted in circumstances on benefit of doubt.

Ayaz Latif Palejo for Appellants.

Zafar Ahmed Khan State Counsel for the State.

Date of hearing: 20th May, 2008.

PCrLJ 2009 KARACHI HIGH COURT SINDH 173 #

2009 P Cr. L J 173

[Karachi]

Before Farrukh Zia G. Shaikh, J

Mst. MEHJABEEN----Applicant

Versus

D.P.O. and 4 others----Respondents

Criminal Miscellaneous Application No.163, M.As. Nos.600 and 2618 of 2008, decided on 17th October, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B & 561-A---Penal Code (XLV of 1860), S.294---Applicant in her application to Justice of Peace sought relief to the effect that police be restrained from harassing her and her family members; and from lodging any F.I.R. against her; and further that police officials should not lock her and member of her family inside their house---Constitutional petition filed by applicant on similar prayer was also dismissed---Physical inspection of the site in question by the police and court official, showed that premises in question was being used for illegal activities and that case was fit for action under S.294, P.P.C.---Intention of the legislature under S.294, P.P.C. was to stop the menace of prostitution and similar other illegal activities in or. near any public place----Premises in question was being used for illegal activities, the police officials were directed by High Court to lodge an F.I.R. against concerned persons---If, for any reason, the lodging of F.I.R. was delayed applicant and members of her family would not be arrested or harassed in any manner until such time the direction was acted upon---Applicant being a lady, was at liberty to seek bail or to pursue any other legal course as advised---Application was dismissed.

Mian Mumtaz Rabban for Applicant.

Muhammad Iqbal Mahar, Asst. A.-G. along with D.S.P. Masood Mahar and S.H.O. Abdul Malik.

PCrLJ 2009 KARACHI HIGH COURT SINDH 187 #

2009 P Cr. L J 187

[Karachi]

Before Muhammad Athar Saeed, J

ABDUL GHAFFAR----Applicant

Versus

THE STATE and another-Respondents

Criminal Bail Application No. S-487 of 2006, decided on 28th August, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Bail, grant of---Accused despite holding sten gun, did not fire at deceased to kill them and only role assigned to him was that of instigation---Enmity existed between the deceased and the complainant as the deceased and complainant were implicated in the murder of the brother of accused---One of the reasons given by the Trial Court for rejection of bail application of accused was that possibility existed that accused could jump bail and would become absconder---Trial Court, however, had failed to give any reason for its view---Such could only be considered a presumption or assumption---Bail could not be rejected merely on the presumption that accused would jump bail and become absconder---Normally bail could be granted in cases where only allegation of instigation or Lalkara was made against accused---Bail could not be denied to accused as his role in the murder of the deceased was just that of instigator and prima facie it appeared that he was armed with unloaded sten gun and no charge was against him of firing with intention to kill---Bail was granted in circumstances.

1996 PCr.LJ 1203; 2006 SCMR 966; Abdul Aziz v. Bashir Ahmed PLD 1966 SC 658; Wazir Muhammad v. The State 1978 SCMR 448; Sher Khan v. The State 1980 SCMR 193; Sultan Ahmed and others v. The State 1981 SCMR 771; Muhammad Haroon v State 1994 SCMR 2161 and Mumtaz Hussain v. State 1996 SCMR 1125 ref.

M.M. Aqil Awan for Applicant.

Amir Ali Thari, State Counsel.

PCrLJ 2009 KARACHI HIGH COURT SINDH 232 #

2009 P Cr. L J 232

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

COLLECTOR OF CUSTOMS (PREVENTIVE), GOVERNMENT OF PAKISTAN, CUSTOM HOUSE, KARACHI----Petitioner

Versus

SAJJAD MUHAMMAD JAFFER and 2 others----Respondents

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

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

----Ss. 6, 9, 34, 35 & 36---Criminal Procedure Code (V of 1898), Ss.417 & 265-K---Appeal against acquittal---Special Court allowing application of accused persons filed under S.265-K, Cr.P.C. having acquitted them, Authority had filed appeal against said acquittal---Consignment in question was sent to Government Laboratory for examination and report of the laboratory was in negative---Consignment was then sent to Research Institute of Chemistry, which was not a Notified Laboratory within the meaning of S.34 of Control of Narcotic Substances Act, 1997---Validity---Government Laboratory had already opined that consignment did not contain any narcotic substance---Second Laboratory was not a notified laboratory and its Research Officer who gave the report, had not been notified as an official to test the material of narcotic substances under Control of Narcotic Substances Act, 1997---Laboratory and the officer who gave the report did not come within the ambit of sections 34 to 36 of Control of Narcotic Substances Act, 1997---Such report, in circumstances, did not fulfil the requirements of law---No illegality or irregularity being in order of acquittal of accused, same did not require any interference.

Ahmed Khan Bugti for Appellant.

Raza Hashmi for Respondents.

PCrLJ 2009 KARACHI HIGH COURT SINDH 239 #

2009 P Cr. L J 239

[Karachi]

Before Farrukh Zia G. Shaikh, J

ABDUL REHMAN alias ACHAR NO.ONARI----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.408 of 2008, decided on 12th September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/337-H(ii)/34---Bail, grant of---Accused as per medical report was suffering from Chronic Liver Disease due to Hepatitis "C"---Trial Court had ignored that the said disease was infectious--Prosecution witnesses had filed their affidavits before Trial Court exonerating the accused and co-accused from the charge, stating therein that they had not seen the accused persons committing the murder of the deceased, nor they were present at the place of occurrence----Witnesses had stated that they had come out of their houses on hearing fire shots and only seen the dead body of the deceased lying on the ground---Bail was allowed to accused in circumstances.

Abbas v. The State 2000 SCMR 212 ref.

Mushtaq Ahmed Shahani for Applicant.

Muhammad Iqbal Mahar, Asstt. A.-G. for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 254 #

2009 P Cr. L J 254

[Karachi]

Before Ali Sain Dino Metlo and Khawaja Naveed Ahmed, JJ

IMTIAZ JAWED----Applicant

Versus

THE STATE----Respondent

Criminal Revisions Nos.70 and 71 of 2008, decided on 11th September, 2008.

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

----Ss. 516-A & 439--Control of Narcotic Substances Act (XXV of 1997), Ss.7/9(c), 32, 21, 22 & 74--Custody of car on Superdari---Any vehicle used in carrying a narcotic drug was liable to confiscation, except where its owner did not know that the offence was being or was to be committed, as provided under section 32 of the Control of Narcotic Substances Act, 1997, and Ss.21 & 22 thereof had authorized seizure of such vehicle---Proviso to S.74 of the said Act had barred the giving of a vehicle used in transportation of a narcotic drug to the accused or any of his associates or relatives or any private individual, till the conclusion of the case---Presently, material available on record had overwhelmingly showed involvement of accused who was caught red handed in the commission of the offence, while transporting huge quantity of heroin in his car and he could not be said to have no knowledge about the car being used in the transportation of heroin---Order of Trial Court refusing to give custody of the car to the accused was upheld being unexceptionable---Revision petition had no merits and was dismissed accordingly.

Mst. Shaheen Begum v. S.H.O. (ACLC) and others 2005 MLD 176; Muhammad Akmal Shah v. D.S.P. and others 2004 PCr.LJ 1; Mahboob Khan v. The State 2003 YLR 791 and Abdul Salam v. The State 2003 SCMR 246 distinguished.

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

----Ss. 7/9(c) & 37---Defreezing of Bank account--Section 37 of the Control of Narcotic Substances Act, 1997, had empowered the Trial Court to order the freezing of the assets of the accused, his relatives and associates, if reasonable grounds appeared to believe that he had committed the offence punishable under the said Act---Paramount consideration for freezing of the assets of the accused depended on the existence of reasonable grounds for believing him guilty of the offence and overwhelming grounds were present in this regard---Impugned order refusing to defreeze the Bank account of accused did not call for any interference---Revision petition was dismissed accordingly.

I. A. Hashmi for Applicant.

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

PCrLJ 2009 KARACHI HIGH COURT SINDH 260 #

2009 P Cr. L J 260

[Karachi]

Before Dr. Rana Muhammad Shamim, J

GULLAN alias GUL MUHAMMAD----Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-429 and M.A. No.2214 of 2008, decided on 17th October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.365 & 341---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail, grant of---Matter between accused and complainant had already been resolved through a compromise---Counsel for complainant also confirmed that the matter had already been resolved between the complainant and accused by a compromise on the intervention of the Nek Mards of the locality and that he had no objection against the grant of bail to accused---Counsel for complainant also filed affidavit of the complainant in that respect---Bail was granted to accused, in circumstances.

Mukhtar Ahmad v. State 1999 PCr.LJ 1107 and Muhammad Ismail v. State 2006 MLD 437 ref.

Miss Razia Khan Bahadur for Applicant.

Anwar Hussain Ansari State Counsel for the State.

S. Madad Ali Shah for the Complainant.

PCrLJ 2009 KARACHI HIGH COURT SINDH 273 #

2009 P Cr. L J 273

[Karachi]

Before Salman Ansari, J

WASIM alias DON----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.1086 of 2008, decided on 8th October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.397---Bail, refusal of---Both the injured witnesses rightly identified the accused during identification parade---No enmity was alleged for false implication of accused---No delay had occurred in lodging F.I.R. thus, prima facie sufficient evidence to show the involvement of accused was available---Bail was refused to accused.

Ali Ahmed v. The State 1987 MLD 2592; Akhtar Muhammad v. The State 1987 PCr.LJ 2423; Mushtaq Ali Kalhoro v. State 1996 PCr.LJ 1315; Ghulam Murtaza v. State 2000 YLR 2020; Ali Jan alias Lakho v. The State 2001 YLR 772; Tariq Aziz v. The State 2001 YLR 1425; Abdul Hameed v. The State 2004 MLD 413; Ali Raza alias Raza Haider v. The State 2008 PCr.LJ 663; Muhammad Bachal v. The State 2008 YLR 1733 and Mukhtar v. State 1998 MLD 1985 ref.

Akhtar Jamal for Applicant.

Assdullah Baloch, State Counsel.

PCrLJ 2009 KARACHI HIGH COURT SINDH 279 #

2009 P Cr. L J 279

[Karachi]

Before Mrs. Qaiser Iqbal, J

MUHAMMAD ISHTIAQUE----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.19 of 2004, decided on 18th October, 2008.

Penal Code (XLV of 1860)---

----S. 302/34---Appreciation of evidence---Extra-judicial confession---Scope---Extra-judicial confession was not substantive piece of evidence unless corroborated by another strong piece of evidence---Evidence led by the prosecution comprised of hearsay evidence, which could not be treated as cogent---Question of last-seen evidence carried weight depending on the very degree of possibility of facts and circumstances of each case---Even one ground which created dent in the prosecution case was sufficient to draw its inference---Prosecution having failed to prove the guilt of the accused beyond reasonable doubt appeal was allowed and the accused was acquitted in circumstances.

Muhammad Farooq for Appellant.

Asadullah Baloch for the State.

Date of hearing: 10th October, 2008.

PCrLJ 2009 KARACHI HIGH COURT SINDH 292 #

2009 P Cr. L J 292

[Karachi]

Before Ghulam Dastagir A. Shahani, J

BAKHT ZADA----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.141 of 2007, decided on 29th September, 2008.

Penal Code (XLV of 1860)---

----S. 320---Appreciation of evidence---Medical evidence had proved that the deceased lady had died an unnatural death due to acute head injury by hitting against a hard and blunt substance, which could be a road traffic accident---Prosecution witnesses and medical evidence had fully corroborated the version of the complainant---Nothing was brought on record to show any ill-will of the police for false involvement of accused in the case---Impugned judgment did not suffer from any illegality or infirmity including defective appreciation of evidence---Conviction and sentence of accused were maintained in circumstances.

Shahadat Awan for Appellant.

Navid Ali Khokhar State Counsel for the State.

Date of hearing: 4th September, 2008.

PCrLJ 2009 KARACHI HIGH COURT SINDH 298 #

2009 P Cr. L J 298

[Karachi]

Before Zafar Ahmed Khan Sherwani, J

NAZIR AHMED----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.183 of 2008, decided on 23rd October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.324/147/149---Pre-arrest bail, grant of--Parties were inimical towards each other on account of matrimonial dispute over declaring the victim as "Karo" due to his illicit relations with his sister-in-law---Five persons had allegedly tried to cause murder of the victim and the accused was stated to have guarded the co-accused ,at the' time of occurrence while armed with a pistol---Had the accused been present at the spot, he would have killed the victim himself---Involvement of accused in the case appeared to be mala fide due to enmity and in case of refusal of pre-arrest bail he was likely to be arrested and harassed at the hands of complainant and the police---Accused was granted bail before arrest in circumstances.

Nisar Ahmed G. Abro for Applicant.

Miss Rubina, State Counsel for the State.

Javed Ahmed Deenari for the Complainant.

PCrLJ 2009 KARACHI HIGH COURT SINDH 315 #

2009 P Cr. L J 315

[Karachi]

Before Arshad Noor Khan, J

SOHAIL alias GANG----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.173 of 2008, decided on 22nd April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(c)---Bail, grant of---Further inquiry---F.I.R., showed that accused was selling Charas, but no purchaser was present at the alleged time of sale of the Charas, because no statement of the purchaser seemed to have been recorded by the Investigating Officer,---Allegation contained in the F.I.R. that accused was selling Charas, seemed to be a vague and fallacious statement---Nowhere in the F.I.R., the complainant had stated that he knew accused previously---Accused had been arrested after about more than six months from the date of alleged incident---Investigating Officer was obliged to get the identification parade of accused held before Magistrate from the other witnesses who were allegedly present at the time of arrest of accused, but no identification parade had been held, which had badly reflected on the case of the prosecution---Samples had also been sent to Chemical Examiner after inordinate delay without just and sufficient explanation---Case of further inquiry having been made out accused was entitled to bail---Accused was admitted to bail, in circumstances.

Muhammad Chattal v. The State 2001 YLR 654; Anwar v. The State 2005 MLD 950 and Muhammad Hassan Khan and another v. The State 2007 PCr.LJ 514 ref.

Hameedullah Dahri for Applicant.

Ashfaq Rizvi, Special Prosecutor A.N.F.

Naheed Naz for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 320 #

2009 P Cr. L J 320

[Karachi]

Before Anwar Zaheer Jamali, CJ

TARIQ and 2 others ---Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.494 of 2008, decided on 27th October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.302/324/147/148/149/504---Pre-arrest bail, grant of---Role of firing was attributed only to co-accused---Accused though shown to be armed with different weapons, were not stated to have participated in the crime---Counter F.I.R. registered in the case about the same incident had given an entirely different story---Two persons had been murdered of one side and from the other side one person had been killed and another person had sustained fire-arm injuries---Possibility of mala fide implication of the present accused in the commission of the offence could not be ruled out, particularly when F.I.R. had been lodged against them after two days of the incident without any plausible explanation---Interim pre-arrest bail allowed to accused was confirmed in circumstances.

Aziz-ur-Rehman Akhund for Applicants.

Salim Akhtar, Addl. P.-G., Sindh for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 325 #

2009 P Cr. L J 325

[Karachi]

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

NIZAR ALI FAZWANI and another----Applicants

Versus

Messrs PAK GOLF LEASING COMPANY LIMITED and another----Respondents

Criminal Miscellaneous Application No.76 of 2008, decided on 7th November, 2008.

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

----S. 489-F---Dishonestly issuing a cheque---Scope---Section 489-F, P.P.C. has been promulgated to punish those persons who take loans on the basis of forged and fabricated documents or with intent to defraud a bank or financial institution with intention not to pay back the amount.

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

----S. 561-A---Financial Institution (Recovery of Finances) Ordinance, 2001, S.20(4)---Penal Code (XLV of 1860), S.489-F---Quashing of F.I.R.---Accused had pledged articles, obtained loan and paid at least 50% amount and it was subsequently that their cheques were dishonoured---Financial Institutions (Recovery of Finances) Ordinance, 2001, was introduced for such defaulters and the Bank had rightly filed a complaint under S.20(4) thereof as well as a civil suit against the accused---Accused in view of said facts and circumstances did not appear to have any intention to cheat or defraud the respondent-Company---Record did not show that all the cheques were dishonestly issued---Accused had also filed a suit for rescheduling the amount and permanent injunction---Apparently, therefore, ingredients of S.489-F, P.P.C. were not made out against the accused---When on the face of it no case was made out against the accused, or there was lack of jurisdiction or when there was sheer abuse of the process of law, High Court under its inherent powers under S.561-A, Cr.P.C. could quash the F.I.R. or even proceedings for that matter---Impugned F.I.R. was based on mala fides and ulterior motives and the same being not sustainable was quashed accordingly.

Capt. (Retd.) Nayyar Islam v. Senior Superintendent of Police and others PLD 2001 Lah. 533; Maj. (Rtd.) Javed Inayat Khan Kiyani v. The State PLD 2006 Lah. 752; Mian Tariq Azmat Sheikh v. S.H.O. Police Station F.I.A. and others 1996 PLD 1362; Miraj Khan v. Gul Ahmed and others 2000 SCMR 122; Muhammad Saleem Bhatti v. Syed Safdar Ali Rizvi and 2 others 2006 SCMR 1957; Agha Wazir Abbas and others v. The State and others 2005 SCMR 1175; Hayat Bakhsh and others v. The State PLD 1981 SC 265; Allah Bakhsh v. The State 1982 SCMR 911; Gul Hassan and another v. The State PLD 1969 SC 89; Muhammad Jamil Ahmad and another v. The State SBLR 2005 Sindh 1146 and Muhammad Farooq Khan v. Province of Sindh and others 2008 YLR 1265 ref.

Dr. Ghulam Mustafa v. The State and others 2008 SCMR 76; Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 and Seema Fareed and others v. The State and another 2008 SCMR 839 distinguished.

----Art. 199---Constitutional jurisdiction---Quashing of proceedings---High Court in exercise of its constitutional jurisdiction under Art.199 of the Constitution, cannot stifle and throttle the prosecution case at its initial stage, when ingredients of offences charged in the F.I.R. were prima facie made out.

Seema Fareed and others v. The State and another 2008 SCMR 839 ref.

(d) Administration of justice---

----Criminal and civil proceedings---Co-existence---Criminal case must be allowed to proceed on its merits---Institution of civil proceedings relating to same transaction is not a legal bar to maintainability of criminal proceedings and both can proceed concurrently---Conviction for a criminal offence is altogether different matter from civil liability---Purpose and spirit of criminal proceedings is to punish the offender for the commission of a crime, while the purpose behind the civil proceedings is to enforce civil rights arising out of contracts---Both the criminal and civil proceedings can co-exist and proceed simultaneously without any legal restriction.

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

----S. 561-A---Inherent powers of High Court---Quashing of F.I.R. and proceedings---Application and scope---When prima facie no case is made out, or when there is want of jurisdiction, or when there is a sheer abuse of the process of law, in peculiar circumstances, High Court under its inherent powers under S.561-A, Cr.P.C. can quash an F.I.R. or even proceedings for that matter.

S. Tauqeer Hassan for the Applicant.

Amir Mansoob Qureshi for Respondent No. 1.

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

PCrLJ 2009 KARACHI HIGH COURT SINDH 341 #

2009 P Cr. L J 341

[Karachi]

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

Syed SAADAT ALI----Appellant

Versus

THE STATE----Respondent

C.P. No.D-1506 of 2005 and Criminal Acquittal Appeal No.53 of 2001, decided on 30th October, 2008.

National Accountability Ordinance (XVIII of 1999)---

----S. 9---Constitution of Pakistan (1973), Art.199---Constitutional petition---Deceased husband of the petitioner had been convicted and sentenced to three years' R.I. and a fine of Rs.7,500,000, with the confiscation of the house in question---Husband of petitioner had served out the substantive sentence, but subsequently, he expired---Petitioner had sought modification in the impugned judgment regarding the forfeiture of her aforesaid house and the imposition of fine of Rs.7,500,000---Admittedly the subject house was in the name of the petitioner-Prosecution had failed to prove that price of the said house was paid from the account of the deceased---Petitioner had proved through evidence that her husband was owner of the house, but he had gifted the same to her through a deed---Counsel for NAB had conceded to the above said circumstances---Husband of the petitioner had not left behind any immovable property for his surviving legal heirs---Order regarding the imposition of fine and forfeiture of the house in question was consequently set aside, while rest of the impugned judgment was maintained in circumstances---Constitutional petition was allowed accordingly.

Farrukh Javed Ghumman v. the State PLD 2004 Lah. 155; Misbahuddin Farid v. The State 2002 MLD 480; Muhammad Hayat and 2 others v. The State PLD 2002 Pesh. 118; Mst. Zahida Sattar v. Federation of Pakistan and others PLD 2002 SC 408 and Mirza Zahid Amin C.P. No.D-40 of 2000 ref.

Nisar Ahmed Tarar for Appellant.

Ch. Muhammad Iqbal, A.P.-G.A. NAB.

PCrLJ 2009 KARACHI HIGH COURT SINDH 355 #

2009 P Cr. L J 355

[Karachi]

Before Faisal Arab and Dr. Rana Muhammad Shamim, JJ

IKHTIYAR----Appellant

Versus

THE STATE----Respondent

Criminal Jail Appeal No.D-183 of 2007, heard on 23rd October, 2008.

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

----S. 9(c)---Sentence, reduction in---Appeal was not pressed on merits and only reduction in sentence was prayed for---"Charas" weighing 1060 grams was recovered from possession of accused---Accused was in custody since long and had served out substantive sentence of more than two years---Accused was a first offender and had shown his remorse and penitence during his period of imprisonment after his conviction and he deserved leniency---Sentence of ten years' R.I. awarded to accused by Trial Court was reduced to two years' R.I. with substantial reduction in fine in circumstances.

1989 PCr.LJ 840; PLD 1977 Kar. 1049; 1993 PCr.LJ 490; 1991 PCr.LJ 886 and 1993 MLD 1823 ref.

Nandan A. Kella for Appellant.

Mukhtiar Ahmed Khanzada for Respondent.

2009 P Cr. L J 381

[Karachi]

Before Dr. Qammaruddin Bohra, J

MUHAMMAD KHALID QURESHI----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.1279 of 2008, decided on 4th December, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 322, 324, 285, 420 & 34---Explosives Act (IV of 1884), Ss.4/5---Bail, grant of---Further inquiry---Police had submitted challan after 18 months of the incident and that too after converting the offence under S.302, P.P.C. to S.322, P.P.C. which was only punishable for Diyat and other offences were bailable---Affidavit filed by the complainant exonerating accused had made the case of accused of further inquiry---Nothing was in the police file which could reveal that accused was business partner and equally responsible with the absconding accused for storing the explosive substance---All such factors had made accused entitled to be admitted on bail--Accused was admitted to bail, in circumstances.

Saathi M. Ishaque and Naseer Hussain Jaffery for Applicant.

Salim Akhtar, Addl. P.-G. for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 387 #

2009 P Cr. L J 387

[Karachi]

Before Faisal Arab, J

GHULAM MUHAMMAD----Applicant

Versus

STATION HOUSE OFFICER, POLICE STATION UMARKOT and another----Respondents

Criminal Miscellaneous Application No.223 of 2008, decided on 7th November, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B, 154 & 561-A---Application for registration of F.I.R.---Grievance of applicant was that he, in the first instance, approached S.H.O. concerned to lodge F.I.R., but he refused; that thereafter he approached ex-officio Justice of Peace by moving application under Ss.22-A & 22-B, Cr.P.C. for seeking direction to the S.H.O. concerned to lodge the F.I.R., but same was also declined---Being aggrieved by said order applicant had filed the present application---Lodging of report by itself did not amount to give a license to the police to make arrest, however, after investigation into the allegation if sufficient material came out, only then the police could proceed in accordance with law---Accused persons, though were party in the case before Court of Session, but they were not impleaded in the application---Applicant, in circumstances would approach the concerned police station and the S.H.O., who was present in the court, would record his statement and upon his statement, if a cognizable offence was made out, he would register the F.I.R.

Syed Madad Ali Shah for Applicant.

Mumtaz Alam Leghari, Asstt. A.-G. along with Muhammad Qasim, S.H.O. Police Station Umerkot for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 392 #

2009 P Cr. L J 392

[Karachi]

Before Farrukh Zia G. Shaikh, J

SIDDIQUE JUNEJO and 4 others----Applicants

Versus

THE STATE----Respondent

Criminal Bail Applications Nos.S-9 and S-47 of 2008, decided on 4th June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.149---Pre-arrest bail, refusal of---Bail applications having no merits, were rejected---Interim bail order passed earlier was recalled---Direction was given to the Trial Court to expedite the proceedings and examine the star-witnesses within the specified period---In the meantime counsel for accused persons had suggested that there was a possibility of compromise between the parties---Counsel was at liberty to pursue such compromise which, however was totally denied by the counsel for the complainant---All the parties were present in court and complainant had not shown any sign of compromise---Bail was refused in circumstances.

1996 SCMR 1845; 2001 PCr.LJ 216; 1973 PCr.LJ 74; 1996 PCr.LJ 1612; 1994 PCr.LJ 1102; 2007 SCMR 1412; 2006 SCMR 933; 2007 SCMR 1607; 2002 SCMR 1370; 1992 SCMR 501 and 1981 SCMR 1092 ref.

Muhammad Saleem Hashmi for Applicants (in Criminal Bail Application No.S-9 of 2008).

Madad Ali Shah for the Complainant.

Mumtaz Alam Leghari, Asstt. A.-G. for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 403 #

2009 P Cr. L J 403

[Karachi]

Before Faisal Arab and Dr. Rana Muhammad Shamim, JJ

MUHAMMAD AYOOB----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.D-41 of 2005 and M.A. No.2286 of 2008, decided on 22nd October, 2008.

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

----S. 9(c)---Appreciation of evidence---Sentence, reduction in---Only 8 packets containing 8 Kgs. Charas were sent for chemical examination whereas no sample was taken from remaining 32 packets weighing 32 Kgs.---Case against accused being only for possession of 8 Kgs. Charas, same did not fall under the provision of S.9(c) of Control of Narcotic Substances Act, 1997---State Counsel had not controverted the legal plea taken by counsel for accused and confirmed that 8 packets containing 8 Kgs. Charas were sealed and sent for chemical examination whereas no sample was taken out from 32 packets containing 32 Kgs. Charas---Maintaining the conviction of accused, the substantive sentence awarded to him was reduced from life imprisonment R.I. to 10 years' R.I. and the fine was also reduced from Rs.300,000 to Rs.50,000 accordingly.

Jameel Khan and others v. State PLD 2008 Kar. 376; Waris v. State PLD 2006 Kar. 648 and Muhammad Hashim v. The State PLD 2004 SC 856 ref.

Madad Ali Shah for the Appellant.

Mukhtiar Ahmed Khanzada, State Counsel.

2009 P Cr. L J 467

[Karachi]

Before Bin Yamin, J

ZULFIQAR----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.720 and M.A. No.1759 of 2008, decided on 27th November, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.364, 365, 337-A(i), 148 & 149---Bail, grant of---Further inquiry---Complainant and other two persons who were said to have witnessed the incident, had filed their respective affidavits, in which they had clearly stated that lady was dragged to some distance and not taken away by accused; and further that they had given the names of accused persons as culprits on the basis of suspicion---In presence of said versions of complainant and his witnesses, case of accused fell within the purview of a case of further inquiry---Accused being entitled to the grant of bail, he was admitted to bail.

Asif Ali Abdul Razzak Soomro for Applicant.

Naimatullah Bhurgri for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 472 #

2009 P Cr. L J 472

[Karachi]

Before Abdul Rasheed Kalwar, J

MOULA BUX----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-556 of 2008, decided on 28th November, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, refusal of---Deceased had died due to injuries received by him by discharge of fire arm---Deceased had also received fire arm injuries on his head/face, which was supported by the ocular evidence as well as the post mortem report---Injuries received by the deceased were sufficient to cause his death---After letting of co-accused, the number of injuries sustained by the deceased commensurated with the number of accused who fired upon the deceased---Deeper appreciation of evidence was not permissible at bail stage---Enmity could be motive for commission of offence---Presence of accused on spot along with other co-accused had been tentatively established from prosecution record---Case of further inquiry into the guilt of accused was not made out---Accused being not entitled to bail, his bail plea was dismissed.

PLD 1988 SC (AJ&K) 14; 1997 PCr.LJ 1578 and 1999 PCr.LJ 184 ref.

Abdul Rasool Abbasi for Applicant.

Mukhtar Ahmed Khanzada State Counsel.

PCrLJ 2009 KARACHI HIGH COURT SINDH 476 #

2009 P Cr. L J 476

[Karachi]

Before Abdur Rahman Faruq Pirzada, J

IMAM BUX----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.676 and M.A. No.2894 of 2008, decided on 28th November, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/201/147/148---Bail, grant of---No direct ocular evidence was available against the accused---Dead body of deceased was found later on and the name of accused along with co-accused was given in suspicion---Co-accused whose case was almost identical to that of accused, had already been granted bail---Accused would be entitled to concession of bail in view of rule of consistency---State counsel had conceded to grant of bail to accused as co-accused had been granted bail---Accused was released on bail, in circumstances.

Abdul Sattar Chandio for Applicant.

Muhammad Iqbal Mahar, A.A.-G. for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 480 #

2009 P Cr. L J 480

[Karachi]

Before Faisal Arab and Abdul Rahseed Kalwar, JJ

SHAWAZ KHAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.182 of 2004, decided on 22nd December, 2008.

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

----S. 9(c)---Appreciation of evidence---Benefit of doubt---Accused was found standing near the driver side of the pick up from which Charas was recovered---Accused could only be saddled with the liability of the offence when his possession and control over the vehicle was established by the prosecution---Prosecution had failed to establish accused's possession and control over the vehicle, because accused was not sitting in the vehicle---By merely standing beside the vehicle, would not establish his possession and control over the vehicle---Since the Charas was found from the vehicle pertaining to medicine supplier company, Investigating Officer was duty bound, either to implicate the responsible officials of that company as co-accused in the offence or at least he should have cited them as witness in order to confirm whether accused was driving their vehicle as their employee or not---Such lapse on the part of the prosecution, did not seem to be bona fide on the part of the Investigating Officer---No doubt, the Chemical Examiner's report was in positive and the substance sent to him was found to be Charas, but Chemical Examiner's report, in absence of confidence inspiring ocular evidence, was not helpful for bringing guilt to accused---Recovery of Charas from the vehicle in question, could not, ipso facto, be proof of the guilt of accused, unless possession of vehicle was proved against accused through confidence inspiring evidence, which was lacking---Charas was allegedly filled in the cartons and those cartons had not been produced in the court---Excise Police had filled bags with the recovered Charas as per their own choice---Why the Excise Police did not preserve and produce the cartons in the court, was a question for which prosecution could not furnish plausible explanation; shadow of doubt had also been created for which accused was entitled to take benefit---Nothing had been brought on record by the prosecution to establish that Charas wrapped in the cartons was within the knowledge of accused---Whole proceedings of investigation being tainted with mala fides, complainant's own interest for conducting investigation himself, was not just, fair and proper---Accused had not claimed ownership of the vehicle, so also the registration book did not bear his name---Possession of accused over vehicle containing Charas had not been proved---Service of accused with the medicine supplier company had also not been established on the record---Charge against accused, in circumstances, had not been proved beyond reasonable doubt---Conviction and sentence recorded against accused by the Trial Court, were set aside and he was acquitted of the charge.

Fida Jan v. State 2001 SCMR 36; Muhammad Khan v. State 2008 SCMR 1616 and Muhammad Hanif v. State 2003 SCMR 1237 ref.

Umar Farooq Khan for Appellant.

Muhammad Azeem Panhwar for the State.

Date of hearing: 4th December, 2008.

PCrLJ 2009 KARACHI HIGH COURT SINDH 491 #

2009 P Cr. L J 491

[Karachi]

Before Munib Ahmad Khan, J

MUHAMMAD RIAZ AHMED KHAN----Applicant

Versus

IMRAN ABDULLAH and 5 others----Respondents

Criminal Revision Application No.72 of 2008, decided on 23rd - December, 2008.

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

----Ss. 3 & 8---Respondent tenant, after having been lawfully ejected from the shop of the petitioners, had again taken over the possession of the shop illegally by breaking open its lock---Application filed by petitioner under S.3 of Illegal Dispossession Act, 2005, against the respondents had been dismissed by Sessions Court with the observation that Illegal Dispossession Act, 2005, was meant for only land grabbers and was not applicable to any other sort of dispossession---Validity---Sessions Court had misinterpreted the judgment reported as PLD 2007 Lah. 231 and the words "property grabbers" mentioned in the preamble of the Illegal Dispossession Act, 2005---Sessions Court had also failed to appreciate the meaning of the words "owner or occupier" given in the said Act and had further failed to go through S.3 of the same Act---Illegal Dispossession Act, 2005, had been promulgated to protect the rights of the owner and of the lawful occupant of the property, as against the unauthorized and illegal occupants and all cases of illegal occupants were covered by the said Act, except a few cases where such issue had already been taken up---Person not in legal possession would be possessing the property illegally and would fall within the ambit of the Illegal Dispossession Act, 2005---Such type of activities as complained by the petitioner, if allowed, would deprive the orders or writs issued by the Courts of their sanctity and immediately after eviction of a person through legal process, he would reoccupy the same property---Approach of Sessions Court was totally misconceived and contrary to law---Impugned order was consequently set aside and the case was remanded to District and Sessions Judge to proceed with the matter and decide the rights of parties and their liability to punishment in true spirit of law---Petition was allowed accordingly.

PLD 2007 Lah. 231; PLD 2007 SC 423; PLD 2008 Kar. 369; PLD 2008 Kar. 400 and PLD 2008 Kar. 518 ref.

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

---S. 3---Prevention of illegal possession of property, etc.---Scope, purpose and retrospective effect detailed.

PLD 2008 Kar. 369 ref.

---S. 3---Prevention of illegal possession of property, etc.---Nature and scope---Illegal Dispossession Act, 2005, is a special enactment promulgated to discourage the land grabbers and to protect the rights of owners and the lawful occupants of the property, as against the unauthorized and illegal occupants---Relevant provisions in the Act if examined carefully, would reveal that the Act covers all cases of illegal occupants without any distinction, except the cases already pending before any other forum.

PLD 2007 SC 423 ref.

G.M. Saleem for Applicant.

Nemo for Respondents Nos. 1 to 4.

Respondent No.5 in person.

Saleem Akhter, Addl. P.-G., Sindh and Ms. Farkhunda Mangi, State Counsel for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 499 #

2009 P Cr. L J 499

[Karachi]

Before Faisal Arab, J

MUHAMMAD HAFIZ NIZAMANI and 2 others----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No. S-702 of 2008, decided on 7th November, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.423---Interim bail, grant of---Complainant lady had alleged that some persons had fraudulently prepared general power of attorney and on that basis they were trying to sell her land through unfair means---Counsel for accused had pointed out that a registered sale-deed had been executed by the complainant lady herself in favour of accused before the Registrar which was duly witnessed by son of the complainant---Sale-deed showed that the N.I.C. numbers of the complainant and her son were also mentioned---Pursuant to such registration, an entry was also kept in Deh Form-II---Complainant having herself executed a registered sale-deed and not someone claiming himself to be her attorney, the question of apprehension that some unknown person was trying to sell her land by preparing power-of-attorney, would not arise---State Counsel had stated that the complainant had herself executed the sale-deed she never approached the concerned Authorities to lodge any complaint about transfer made pursuant to registration of sale-deed---State Counsel had conceded to the grant of bail to the accused---Case for grant of bail, having been made out, interim bail already granted to accused was confirmed on the same terms and conditions.

Irfan Ahmed Qureshi for Applicants.

Anwar H. Ansari State Counsel.

PCrLJ 2009 KARACHI HIGH COURT SINDH 503 #

2009 P Cr. L J 503

[Karachi]

Before Anwar Zaheer Jamali, C.J.

ALLAH BACHAYO and another----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.407 of 2008, heard on 8th September, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497---Penal Code (XLV of 1860), Ss.302/324/147/148/149/504---Pre-arrest bail, refusal of---Contents of the F.I.R. and the statements of prosecution witnesses had, prima facie, established the presence of accused at the place of occurrence---Specific role of obstructing the Muhallah people from rescuing the complainant party, being armed with weapons, was also attributed to accused---Possibility of accused of sharing common intention with their co-accused could not be ruled out---Statement of one accused taking responsibility of the incident on his shoulders recorded under S.164, Cr.P.C. would not, at present stage, absolve the accused of their role, as prosecution was yet to establish its case at the trial---Involvement of accused in the occurrence was not mala fide---Offences against the accused fell under the prohibitory clause of S.497(1), Cr.P.C.---Accused had even not approached the Trial Court for pre-arrest bail in the first instance, as demanded by the rule of propriety---Pre-arrest bail was declined to accused in circumstances.

2005 MLD 1443; 2004 PCr.LJ 1888; 2006 SCMR 1292 and 2004 SCMR 1167 ref.

Inam Nabi Soomro for Appellants.

Nafees Ahmed Usmani, A.A.-G. Sindh.

Mehmood A. Qureshi for the Complainant.

PCrLJ 2009 KARACHI HIGH COURT SINDH 521 #

2009 P Cr. L J 521

[Karachi]

Before Farrukh Zia G. Shaikh, J

ALI MUHAMMAD and another----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.84 and M.A. No.2647 of 2008, decided on 20th October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/148/149---Bail on ground of hardship, refusal of---Accused admittedly were in custody for the last more than three years and not a single witness had so far been examined in the case---However, according to F.I.R. accused along with other accused persons duly armed with kalashnikovs, had brutally murdered the deceased by straight firing on him with their respective weapons---Accused did not deserve grant of bail on the ground of hardship in circumstances and they were refused bail accordingly.

Maqbool Ahmed Awan for Applicants.

Agha Ather Hussain, Asst. A.-G. for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 526 #

2009 P Cr. L J 526

[Karachi]

Before Mrs. Yasmin Abbasey, J

MUHAMMAD YOUNUS and another----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.1254 and M.As. Nos.4874, 4427 of 2008, decided on 4th December, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.393/353/324/34---Bail, grant of---Complainant during the pendency of bail application had filed an affidavit in High Court stating therein that he had not made any statement as mentioned in the F.I.R. and he had disowned the same---State Counsel, in view of the said affidavit, did not object to grant of bail to accused---Accused was released on bail in circumstances.

Mehmood A. Qureshi for Applicants.

Fazal-ur-Rehman Awan for the State.

Jehangri Rahi for the Complainant.

PCrLJ 2009 KARACHI HIGH COURT SINDH 530 #

2009 P Cr. L J 530

[Karachi]

Before Mrs. Qaisar Iqbal and Khawaja Naveed Ahmed, JJ

Syed GHAUR RAZA----Petitioner

Versus

THE STATE through Director-General, Sindh and another----Respondents

Constitutional Petition No.D-1155 of 2008, decided onl7th July, 2008.

National Accountability Ordinance (XVIII of 1999)---

----S. 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Bail, grant of---Role of the accused seemed to be subservient to the principal accused involved in the commission of the crime---Accused had volunteered to deposit major part of the misappropriated amount involved in the reference pending against him---Charge had not yet been framed in the case---Bail was allowed to accused in circumstances.

Mahmood A. Qureshi for Petitioner.

Ch. Muhammad Iqbal, A.D.P.-G. Nab for Respondents.

PCrLJ 2009 KARACHI HIGH COURT SINDH 540 #

2009 P Cr. L J 540

[Karachi]

Before Salman Ansari, J

SOOFAN alias TAHIR----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.1066 of 2008, decided on 28th October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Bail, refusal of---Name of accused though did not transpire in the F.I.R., but he was shown to have been identified by the prosecution witnesses in the identification parade, held before Magistrate---Accused had also been implicated in S.164, Cr.P.C. statement and pistol was recovered from him---Effect---Sufficient evidence, in circumstances was available to show that accused had committed a non-bailable offence---No case for grant of bail having been made out, bail application of accused was dismissed.

Imtiaz Ali Awan for Applicant.

Asadullah Baloch, State Counsel.

PCrLJ 2009 KARACHI HIGH COURT SINDH 558 #

2009 P Cr. L J 558

[Karachi]

Before Syed Mahmood Alam Rizvi, J

ABDUR RASOOL----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-445 of 2008, decided on 30th September, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of---Bail was sought by accused on three grounds; that the police, despite having information well in advance, had failed to associate private Mashir; that out of the total two Kilograms of Charas, only 110 grams were sent for chemical analysis and that accused could only be held responsible for 110 grams and not the entire property, as such the offence against him would be covered by S.9(b) of Control of Narcotic Substances Act, 1997, which did not attract the bar contained in S.51 of the said Act and that S.H.O. was the complainant in the case and he had himself acted as Investigating Officer, which cast serious doubt upon the veracity of investigation conducted by him---Validity---Held, S.103, Cr.P.C. was not applicable in the cases under the Control of Narcotic Substances Act, 1997 per S.25 of the said Act; that there was no illegality in sending the sample of 110 grams, as the Trial Court could send the rest of the property for chemical examination on the application of the accused; and that complainant's acting as Investigating Officer in the cases, was also not illegal---Report of inquiry conducted by an honest officer, had indicated that some foul play was found on the part of complainant Inspector otherwise, looking to the general attitude and conduct of the local police, an officer from the police department and that too posted within the same jurisdiction was not expected to give a negative report against his colleague---Matter needed further inquiry coupled with the circumstances given in the F.I.R., which made the case doubtful---Accused having made out a case of bail same was granted to him.

Afzaal Ahmed v. The State 2003 SCMR 573; Muhammad Hanif v. The State 2003 SCMR 1237; Ali Muhammad v. The State 2003 SCMR 54 and State v. Bashir and others PLD 1997 SC 408 rel.

Altaf Hussain Surahio for the Applicant.

Naimatullah Bhurgri, State Counsel.

PCrLJ 2009 KARACHI HIGH COURT SINDH 575 #

2009 P Cr. L J 575

[Karachi]

Before Dr. Rana Muhammad Shamim, J

ABDUL SATTAR and another----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.S-479 of 2007 and M.A. No.510 of 2008, decided on 29th October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Accused had not caused any injury to the deceased and no overt act was attributed to them in the F.I.R. hence their false implication in the case could not be ruled out---Trial Court was yet to determine that the offence so committed was an organized and a preplanned one---Two co-accused in the case had already been granted bail by High Court---Accused also deserved concession of bail on the rule of consistency---Bail was granted to accused in circumstances.

1995 SCMR 310; 1999 SCMR 1320; 1978 SCMR 357; 2002 SCMR 282; 1979 SCMR 9; 1993 PCr.LJ 2135; PLD 1998 SC 84 and 2001 PCr.LJ 649 ref.

Abdul Sattar Kazi and Aijaz Shaikh for Applicants.

Anwar Hussain Ansari, State Counsel.

Hidayatullah Abbasi for the Complainant.

2009 P Cr. L J 603

[Karachi]

Before Abdur Rahman Faruq Pirzada, JJ

Mst. AZIZA----Petitioner

Versus

DISTRICT POLICE OFFICER, MIRPURKHAS and 8 others----Respondents

Constitutional Petition No.S-31 of 2008, decided on 28th March, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Petitioner had prayed for legal protection to be provided by official respondents, since she apprehended danger from the side of private respondents as according to her she was declared "Kari" in a private Faisla (decision)---Official respondents present in Court as well as the State Counsel made statement that full legal protection would be provided to the petitioner, as and when required---In view of said statement of official respondents, counsel for the petitioner and the petitioner, having expressed satisfaction, did not press the petition.

Muhammad Sachal Awan for Petitioner.

Rasheed A. Qureshi, Asst. A.-G.

PCrLJ 2009 KARACHI HIGH COURT SINDH 608 #

2009 P Cr. L J 608

[Karachi]

Before Khawaja Naveed Ahmed, J

MUHAMMAD----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.811 of 2008, decided on 20th October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 337-A-(i) & 504/34---Bail, grant of---Further inquiry---Prosecution witness had admitted that he had not stated in his statement recorded under S.155, Cr.P.C. that accused had hit something on the head of deceased---Not proper for the court at bail stage, to go through the evidence recorded by the Trial Court and appreciate same, however, no specific bar existed in that connection---While deciding the bail application, the court could glance over the evidence available on record and could give tentative assessment of the material so far collected---Request for bail to accused was declined twice by the High Court and now for the third time bail application was being heard after recording evidence of two eye-witnesses including that of the complainant---Grounds of inordinate and unexplained delay in recording of F.I.R.; contradictions in the contents of Roznamcha entry and in the contents of F.I.R., the close relationship of the witnesses with the deceased and their hostility towards accused, had made case of accused as that of further inquiry under S.497(2), Cr.P.C. entitling him to concession of bail.

Khalilur Rehman v. The State 2008 YLR 1575; Jaffar and others v. The State 1980 SCMR 784; Amir Buksh v. The State 1985 PCr.LJ 2323 and Muhammad Hanif v. The State 1997 PCr.LJ 70 rel.

Akbar Khan for Applicant.

Fazal-ur-Rehman Awan for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 634 #

2009 P Cr. L J 634

[Karachi]

Before Nadeem Azhar Siddiqi, J

KEHAR KHAN----Applicant

Versus

ADDITIONAL SESSIONS JUDGE AND EX-OFFICIO JUSTICE OF PEACE, KOTRI and 3 others----Respondents

Criminal Miscellaneous Application No.283, M.As. Nos.3567 and 3568 of 2008, decided on 26th January, 2009.

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

---Ss. 22-A, 22-B, 154 & 561-A---Registration of F.I.R.---Application to Ex-officio Justice of Peace---Ex-officio Justice of Peace having dismissed application filed for registration of F.I.R., applicant had challenged such order before the High Court---Validity---Impugned order was passed by the Ex-officio Justice of Peace after calling a report from the concerned Police Station and other pending cases and civil litigation were also considered for refusing to register F.I.R.---Under S.154, Cr.P.C., a statutory duty had been cast upon the officer incharge of Police Station to enter information regarding commission of any cognizable offence in a register---Ex-officio Justice of Peace was influenced with the pending civil litigation which was nothing to do with the registration of a criminal case and the registration of criminal case could not be refused on the ground of pendency of civil litigation---Impugned order whereby application for registration of application was dismissed, was set aside and case was remanded to the Ex-Officio Justice of Peace to pass an order without being influenced by the report of concerned Police Officer and the civil litigation pending between the parties.

Muhammad Bashir v. Station House Officer, Okara Carat and others PLD 2007 SC 539 rel.

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

----Ss. 22-A & 22-B---Powers of Ex-officio Justice of Peace---Scope---Under Ss.22-A & 22-B, Cr.P.C., powers had been given to Ex-officio Justice of Peace to direct the Police Officers to record the statement in the register, if a, cognizable offence, was made out---Powers exercised by the Ex-officio Justice of Peace were very limited which had been given to supervise and to aid the criminal justice system and were not of judicial nature, but administrative and ministerial in character---While exercising such powers the Ex-officio Justice of Peace should not enter into the disputed question of facts to find out the truth and on the basis of the application made before him, had to form his opinion, whether a cognizable offence had been made out or not.

Muhammad Sachal R. Awan for Applicant.

Mukhtar Ahmed Khanzada, State Counsel.

PCrLJ 2009 KARACHI HIGH COURT SINDH 640 #

2009 P Cr. L J 640

[Karachi]

Before Anwar Zaheer Jamali, CJ

ALI REHMAT and another----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.1136 of 2008, decided on 17th November, 2008.

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

----S. 498---Penal Code (XLV of 1860), S.337-C---Pre-arrest bail, refusal of---Only injury sustained by the complainant was attributed to accused---Such injury as per medical certificate, had been certified as "Jurh Jaifah" providing punishment up to ten years---Report of said incident was made on the same day, whereupon the complainant got police letter for his treatment and thereafter F.I.R. was lodged on the basis of medical certificate---Involvement of accused, in circumstances, was not mala fide or with ulterior motive---Possibility of such injury to him during grappling could not be ruled out---Pre-arrest bail application was dismissed to the extent of accused.

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

----S. 498---Penal Code (XLV of 1860), S.337-C---Pre-arrest bail, grant of---Allegations against co-accused were only to the extent of his presence at the time of incident and holding the complainant during the scuffle---Possibility of his mala fide involvement in the commission of crime could not be ruled out, in circumstances---Pre-arrest bail allowed to co-accused was confirmed, in circumstances.

Nadeem Khalidi for Applicants.

Meeran Muhammad Shah, Addl. A.-G. for the State.

Jamil Ahmed Javed for the Complainant.

PCrLJ 2009 KARACHI HIGH COURT SINDH 646 #

2009 P Cr. L J 646

[Karachi]

Before Mrs. Yasmin Abbasey, J

BACHAL----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.921, M.As. Nos.3855 and 3856 of 2008, decided on 2nd February, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Further inquiry---Statements of two alleged eye-witnesses were recorded after seven days of the incident---Even if such delay was ignored, then as per prosecution all the four persons duly armed with Kalashnikov fired at deceased, but according to medical report, he received only two injuries on his person and five empties were said to have been recovered from the place of incident---Record was silent about the fact as to whether any crime weapon was ever recovered from any of accused persons---In absence of any recovery, it was hard to say that out of five empties, which had directly hit deceased, which required evidence, which had not been brought on record---Being case of further inquiry and considering the fact that age of accused was 60 years, accused had been able to make out a case for grant of bail---Case of accused for his thirteen years abscondence was to be considered in the light of facts and circumstances prevailing therein.

PLD 2007 Kai. 127 rel.

Manzoor Hussain N. Larik for Applicant.

Agha Ather Hussain, Asstt. A.-G. for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 660 #

2009 P Cr. L J 660

[Karachi]

Before Syed Mehmood Alam, J

ASGHAR ALI----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.1179 of 2008, decided on 20th October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of---Seventy capsules weighing 610 grams containing heroin were allegedly recovered from the stomach of accused, but the exact weight of heroin was not given, which according to defence counsel would not be more than 300 grams---Trial Court had examined so far only one witness in the case---Accused was behind the bars for the last nine months and to detain him further in jail was not justified---Accused was allowed bail in circumstances.

Aftab Ahmed Khan for Applicant.

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

PCrLJ 2009 KARACHI HIGH COURT SINDH 669 #

2009 P Cr. L J 669

[Karachi]

Before Anwar Zaheer Jamali, C.J.

THE STATE through M.I.T.-Applicant

Versus

SALEEMULLAH and others----Respondents

Criminal Suo Motu Revision Application No.44 of 2008, decided on 30th January, 2009.

Penal Code (XLV of 1860)---

----Ss. 420, 467, 468 & 471---Criminal Procedure Code (V of 1898), Ss.439 & 265-K---Suo motu revision against acquittal---Suo motu proceedings had been initiated in the matter to examine the legality and propriety of impugned order by the Trial Court, whereby, while granting an application under S.265-K, Cr.P.C. moved by accused, he and other accused persons involved in the case were acquitted---State counsel had contended that offences, committed by accused persons were independent of their civil liabilities, which were subject-matter of the two civil suits and that the Trial Court should have framed charge in the criminal case and afforded proper opportunity to the prosecution to lead evidence in the matter, instead of exercising its jurisdiction under S.265-K, Cr.P.C. at such a premature stage---Validity---Record had revealed that no delay whatsoever was caused in the proceedings of the case by the prosecution or the complainant, who were all along keen to proceed with the case, but the Trial Court neglected even to frame charge in the matter---No material was available before the Trial Court at the stage of passing of impugned order to show that the required permission was contemplated under S.155(2), Cr.P.C. for investigation of non-cognizable offence under Ss.468 & 471, P.P.C. which was not obtained---Crime under S.420, P.P.C. for which accused were charged, was independent in nature and could have entailed punishment to accused, if it was proved during the trial of the sessions case---Trial Court, while passing the impugned order seemed to have obliged accused persons in the very indecent and hasty manner, which was evident from the illogical reasoning assigned in the impugned order---Present proceedings initiated by the High Court in suo motu revision on acquiring knowledge about the illegality of the impugned order, were not hit by the provisions of S.417 or 439(5), Cr.P.C., but same were covered by subsection (1) to S.439, Cr.P.C.---High Court directed that R. and Ps. of the sessions case be sent to the Trial Court for further proceedings in accordance with law.

Karl John Joseph and another v. The State PLD 2005 Kar. 4; Muhammad Sharif and others v. The State 2005 MLD 1333; PLD 2005 Kar. 528; Mukhtiar Ali and 3 others v. The State and another PLD 2005 Kar. 528; Altaf Hussain v. Abdul Samad and 3 others 2000 SCMR 1945 and Abdul Rehman v. Deputy Superintendent of Police City Circle, Sargodha 2007 YLR 769 ref.

Niazy A. Khaliq for the Complainant.

Manohar Lal for Respondent No.1.

Talmiz S. Burney for Respondent No.3.

Miran Muhammad Shah, Addl. A.-G., Sindh for the State/(Applicant).

Nemo for Respondent No.2.

PCrLJ 2009 KARACHI HIGH COURT SINDH 679 #

2009 P Cr. L J 679

[Karachi]

Before Ghulam Dastagir Shahani, J

ASHFAQ KAREEM alias KHALIL-UR-REHMAN----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.855 of 2008, decided on 10th September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.353/324/34---Bail, grant of---Accused was arrested at the spot with 32-bore pistol along with 4 live bullets---Accused allegedly fired upon the police party, but no one received injury---Even fire not hit the police mobile---Was yet to be determined, whether accused had fired upon the police party or not---Since no injury was caused to the police party, possibility of awarding lesser punishment to accused could not be ruled out---No reasonable grounds were available to believe that accused had committed a non-bailable offence---Tentative assessment, however was to be made and, no deeper appreciation was required at bail stage---Accused having made out a case for grant of bail, he was admitted to bail, in circumstances.

Muhammad v. The State 1998 SCMR 454; Abdul Qadir v. The State 2006 YLR 3022; Lal Bux v. The State 2008 YLR 926 and Rab Nawaz v. The State 1990 SCMR 1085 ref.

Jamil Ahmed Javed for Applicant.

Navid Ali, State Counsel.

PCrLJ 2009 KARACHI HIGH COURT SINDH 689 #

2009 P Cr. L J 689

[Karachi]

Before Ali Sain Dino Metlo, J

ABDUL SATTAR----Applicant

Versus

THE STATE----Respondent

Criminal Miscellaneous Application No.229 of 2008; decided on 12th November, 2008.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), S.302/34---Appreciation of evidence---Application for exercising inherent powers of High Court---Counsel for applicant/complainant, after going through the papers of investigation, had conceded that no evidence was available on record for putting female or any other person on trial for the murder of applicant's brother, as all the witnesses in whose presence the deceased had died had stated before the Investigating Officer that the deceased had died natural death, and nobody had administered poison to him---Sons and daughters of deceased had clearly stated that their father died natural death and nobody had administered poison to him---No exception could be taken to the order of the Magistrate for granting approval for the disposal of case in "A" class.

Muhammad Amjad Chohan for Applicant.

Syed Miran Muhammad Shah, Addl. A.-G. for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 695 #

2009 P Cr. L J 695

[Karachi]

Before Abdul Rasheed Kalwar, J

HAKEEM JAMALI----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-816 of 2008, decided on 19th December, 2008.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of---Samples of recovered "Charas" were sent to Chemical Examiner after delay of twelve days---State Counsel had failed to account for said delay and police record was also silent about the same---Question whether the samples of "Charas" were kept in safe custody or not and who was responsible for their safe custody for a long period of twelve days, was not explained---Many authorities were available on the point of delay in sending samples to the Chemical Examiner in favour and disfavour of grant of bail, but the one beneficial to the accused had to be followed---Delay in sending the samples to Chemical Examiner had created a reasonable doubt in favour of accused even at bail stage and his case had become one of further inquiry entitling him to concession of bail---Bail was allowed to accused accordingly.

Muhammad Nawaz v. State 2007 MLD 1840 rel.

Sikandar v. State 2008 YLR 351 and Mouladad alias Baba v. v. State 2005 MLD 452 ref.

(b) Precedents---

----Conflicting views---Principle---In case of conflict in views of the authorities the view beneficial to the accused should be followed.

Muhammad Nawaz v. State 2007 MLD 1840 rel.

Ahmed Ali Shaikh for Applicant.

Anwar H. Ansari, State Counsel for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 702 #

2009 P Cr. L J 702

[Karachi]

Before Abdul Rasheed Kalwar, J

Mst. SHAH JEHAN BIBI----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-640 of 2008, decided on 24th October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of---From the factual point of view accused was not entitled for grant of bail on any count, but accused being lady with suckling child had been considered for grant of bail---Woman having suckling child, should not be detained like accused, and bail could be granted in such situation---Accused was granted bail, in circumstances.

2004 PCr.LJ 20; 1997 SCMR 947; 1996 SCMR 973 and 2008 SCMR 742 ref.

Ishrat Ali Lohar for Applicant.

Amjad Ali Sehto, Special Prosecutor, A.N.F. for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 711 #

2009 P Cr. L J 711

[Karachi]

Before Salman Ansari, J

MUHAMMAAD HASHIM SEHTO----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.672 of 2008, decided on 15th December, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.221---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Bail, grant of---Further inquiry---Accused who was ASI in Police Department had allegedly facilitated the escape of an accused who was a high profile prisoner in custody---Accused in the case was arrested and a K.K. was recovered from his possession and a case under S.13(d) of West Pakistan Arms Ordinance, 1965 was registered against him---Bail had been allowed by the High Court in the main case---Accused was also entitled to the same concession while offence against accused did not fall within prohibitory clause of S.497, Cr.P.C. as punishment provided under S.13(d) of the West Pakistan Arms Ordinance, 1965 was 7 years-co-Every likelihood was present that police might have foisted the case upon accused and same would require evidence to determine the veracity of the recovery---Till such time case of further inquiry had been made out---Keeping in view the nature of allegations of the recovery, bail application of accused was allowed.

Syed Madad Ali Shah for Applicant.

Muhammad Azeem Panhwar, State Counsel for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 719 #

2009 P Cr. L J 719

[Karachi]

Before Mrs. Yasmin Abbasey, J

ABDUL WAHID and 3 others----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.S-370 and M.A. No.1196 of 2007, decided on 14th September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 337-F(ii), 147, 148, 149 & 504---Bail, grant of---Medical Certificate placed on record showed that all the injuries shown on the person of both injured, were bailable except one injury "Ghyar-i-Jaifah Badihah" under S.337-F(ii), P.P.C., but that injury too did not fall' within prohibitory clause of S.497, Cr.P.C., being punishable for three years---No motive of committing of the offence appeared on the record---Accused was allowed to be enlarged on bail, in circumstances.

Abdul Rasool Abbasi for Applicants.

Muhammad Azeem Panhwar for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 722 #

2009 P Cr. L J 722

[Karachi]

Before Farrukh Zia G. Shaikh, J

ABDUL SATTAR alias PAPOO----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.633 of 2008, decided on 28th November, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail, refusal of---Role assigned to accused was similar to that of co-accused whose bail application had already been dismissed by the Trial Court as well as by the High Court on merits---Counsel appearing for accused had not been able to differentiate between the case of accused and the case of said co-accused---Case against accused, in circumstances did not fall within the ambit of subsection (2) of S.497, Cr.P.C.---Bail application was dismissed, in circumstances.

Illahi Bux Jamali for Applicant.

Agha Ather Hussain Asstt. A.-G., Sindh for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 727 #

2009 P Cr. L J 727

[Karachi]

Before Mrs. Qaiser Iqbal, J

YOUNUS alias MADI----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.10 of 2009, decided on 6th February, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Explosive Substances Act (VI of 1908), Ss.4 & 5---Bail, grant of---Further inquiry---Accused was confined in custody for the last two years and proceedings against him had not yet commenced---Allegation against accused was that he was found in possession of hand-grenade along with five detonator pins and two packets of explosive substance at the time of his arrest out of which only grenade was sent to the Expert and some of the property alleged to have been recovered, from him was suppressed---Case against accused requiring further inquiry as contemplated under S.497(2) Cr.P.C., he was admitted to bail.

Muhammad Asif v. The State 2006 PCr.LJ 1786 ref.

Ghulam Rasool Mangi for Applicant.

Iqbal Kalhoro, Addl. P.-G., Sindh for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 732 #

2009 P Cr. L J 732

[Karachi]

Before Faisal Arab, J

MUSHTAQ AHMED SOLANGI and another----Applicants

Versus

THE STATE----Respondent

Criminal Bail Applications Nos.1342 and 1192 of 2008, decided on 23rd February, 2009.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.161, 420, 468, 471 & 477-A/34---Prevention of Corruption Act (II of 1947), S.5(2)---Bail, grant of---Further inquiry---Case of the complainant was that functionaries of the Revenue Department in collusion with accused persons committed forgery in the Revenue Record in relation to land in question and through fraudulent means a bogus entry was made in Revenue Record---Further allegation was that on the basis of said bogus entry co-accused first obtained sale certificate from accused who was Mukhtiarkar at the relevant time and then on the strength of such sale certificate co-accused got a general power of attorney registered in favour of his son---Accused being Mukhtiarkar though issued sale certificate in favour of co-accused, but that was issued on the basis of entry which was already on the Revenue Record since 1981---Accused, in circumstances, did not play any role in recording the fraudulent entry---Whether said alleged forged entry was inserted in the Revenue Record during the tenure of accused or prior to his tenure, needed to be inquired into---Case against accused being that of further inquiry, he was entitled to be released on bail---Accused was granted bail.

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

----S. 497---Penal Code (XLV of 1860), Ss.161, 420, 468, 471 & 477-A/34---Prevention of Corruption Act (II of 1947), S.5(2)---Bail, refusal of---On the basis of bogus entry in the Revenue Record, co-accused first obtained sale certificate from accused who was Mukhtiarkar at the relevant time and then on the strength of such sale certificate, co-accused got a general power of such sale certificate, which he got registered in favour of his son---Overwhelming material was available on record to connect co-accused with the alleged offence---In view of unrefutable involvement of co-accused in the alleged offence, no case for grant of bail was made out in his favour---Bail application of co-accused, was dismissed, in circumstances.

2008 SCMR 807 ref.

M.A. Kazi for Applicant (in Criminal Bail Application No.1342 of 2008).

Mazhar Ali B. Chohan for Applicant (in Criminal Bail Application No.1192 of 2008).

Adnan A. Karim, A.A.-G.-for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 741 #

2009 P Cr. L J 741

[Karachi]

Before Abdur Rahman Faruq Pirzada, J

IRFAN ALI and 2 others----Applicants

Versus

THE STATE----Respondent

Criminal Bail Applications Nos.S-321 and S-343 of 2008, decided on 19th September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.382/337-A(i)/337-F(i)/147/148/149/427/504---Bail, grant of---Accused was specifically assigned the role of inflicting blow with backside of hatchet on the head of complainant, as such, medical evidence prima facie corroborated the version of complainant as given in the F.I.R.---Two accused persons prima facie were liable for the alleged offences; prosecution witnesses had supported the case of prosecution in their statements, in respect of the robbery committed from their respective cabins and the injuries suffered by the, complainant at the hands of the accused persons---Bail applications of both the accused were dismissed in circumstances---Remaining three accused stood on different footing as their names did not transpire in the F.I.R.---No cogent material was available on record to implicate those three accused in the case---High Court granted bail to the said three accused, in circumstances.

Irfan Ahmed Qureshi for Applicants (in both the Applications).

Muhammad Azeem Panhwar, State Counsel for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 747 #

2009 P Cr. L J 747

[Karachi]

Before Faisal Arab, J

MUHAMMAD TARIQUE----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.186 of 2004, heard on 9th February, 2009.

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

----Ss. 7(b), 17(3) & 24---Penal Code (XLV of 1860), S.394---Appreciation of evidence---Sentence, reduction in---Appeal, forum of---Accused, who was convicted and sentenced under S.394, P.P.C., filed appeal before High Court against his conviction and sentence---State Counsel had urged that accused had wrongly invoked the jurisdiction of High Court for the reason that charge against him was framed under Offences Against Property (Enforcement of Hudood) Ordinance, 1979 which being a special law, forum for appeal was the Federal Shariat Court and not the High Court---Validity---When the Trial Court tried a case which was punishable under two different laws, then the forum for appeal was to be determined by the law under which the Trial Court convicted accused; in other words, where an offence was not made out under the special law, but was made out under general law, irrespective of the law under which charge was framed then the forum of appeal against such conviction would be the forum provided under the general law; and not the special law under which accused was originally charged---Under Second Proviso to S.24 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, it became evident that the appeal to the Federal Shariat Court would lie only when accused was punished for an offence falling under Ss.9 & 17 of said Ordinance---In the present case the Trial Court had held that the offence was punishable under S.394, P.P.C.---Appeal, in circumstances, had rightly been preferred before the High Court, as accused, though was charged under the offence committed under the Ordinance, was punished not under any provision of said Ordinance, but under provisions of Penal Code, 1860---Counsel for accused having only sought reduction in the punishment, which was not opposed by the State Counsel, it was a fit case for reducing sentence of accused---After taking into account remissions, only six months of imprisonment was left to be served by accused---While maintaining the conviction, sentence was reduced as prayed for.

Fayyaz Ahmed v. The State PLD 2003 Kar 441; Ghulam Muhammad v. The State 2000 PCr.LJ 1155 and Attaullah v. Abdur Razzak PLD 2002 SC 534 ref.

Basharat Ahmed Jatt for Appellant.

Muhammad Azeem Panhwar, State Counsel.

Date of hearing: 9th February, 2009.

PCrLJ 2009 KARACHI HIGH COURT SINDH 786 #

2009 P Cr. L J 786

[Karachi]

Before Muharram G. Baloch, J

MUHAMMAD DILSHAD----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.261 of 2009, decided on 19th March, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Bail, grant of---Accused was granted bail in main case registered against him under S.392/34, P.P.C. and present case against him under S.13(d) of West Pakistan Arms Ordinance, 1965 was the offshoot of the said main case, which otherwise was not punishable for more than three years---When the bail was granted in the main case, as a rule, bail could not be withheld in the cases arising out of the same transaction of crime---State Counsel had conceded that withholding of bail in such case was exception and grant of bail was a rule---Accused was admitted to bail, in circumstances.

Muhammad Yaseen for Applicant.

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

PCrLJ 2009 KARACHI HIGH COURT SINDH 808 #

2009 P Cr. L J 808

[Karachi]

Before Ali Sain Dino Metlo, J

MUHAMMAD AKRAM and another----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.94 of 2009, 1311 and M.A. No.4621 of 2008, decided on 2nd March, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 29 & 51(1)---Bail, refusal of---Heroin weighing ten kilograms was allegedly recovered from the possession of each accused---Case of co-accused, already granted bail, was different from the present accused, whose case was of complete denial---Presumption under S.29 of the Control of Narcotic Substances Act, 1997, for having committed the offence, no doubt, was rebutable, but accused would have to dislodge the same---Discrepancies pointed out in the statements of prosecution, witnesses could not be considered in detail as deeper appreciation of evidence was not required at bail stage---Prima facie, sufficient evidence was available to connect the accused with the commission of the crime---Woman accused could not be allowed bail under the fourth proviso to S.497(1), Cr.P.C. on account of the bar contained in S.51(1) of the Control of Narcotic Substances Act, 1997, being charged with an offence punishable with death and even otherwise her case was not fit for grant of bail---Reasonable grounds existed to believe the accused being guilty fully attracting the said bar of S.51(1) of the said Act---Accused were refused bail in' circumstances.

Gul Zaman v. The State 1999 SCMR 1271 ref.

State v. Mobin Khan Criminal Petition No.53-K of 1998 rel.

M.A. Kazi for Applicant No.1.

Muhammad Faisal Sial for Applicant No.2.

Ashfaq Hussain Rizvi and Muhammad Ali Waris Lari, Special Prosecutors-General for A.N.F.

PCrLJ 2009 KARACHI HIGH COURT SINDH 820 #

2009 P Cr. L J 820

[Karachi]

Before Muhammad Athar Saeed, J

Miss BUSHRA SHAHEEN and another----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.70 of 2009, decided on 23rd February, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, refusal of---Customs Authorities immediately had tested the recovered heroin on Narcotics Test Kit which had given a positive result and had also taken out three different samples of the heroin powder from the suit-cases of the accused ladies---Two real sisters travelling together had themselves produced the three bags before the Customs Authorities for examination, which would be presumed to be their joint baggage---Entire amount of heroin recovered from the accused, prima facie, was found to be heroin and no further inquiry was needed in the case---Bail was declined to accused in circumstances.

Muhammad Hashim v. The State PLD 2004 SC 856; Ali Muhammad v. The State PLD 2003 SC 564; Muhammad Yaqoob v. The State 1998 PCr.LJ 128; Mst. Razia v. The State 2005 PCr.LJ 345; Mst. Sakina Bibi and 2 others v. The State 1998 PCr.LJ 819; Muhammad Riaz v. The State 2005 PCr.LJ 305 and Amir Bux v. The State 2007 PCr.LJ 1019 ref.

Raza Hashmi for Applicant.

G.N. Qureshi, Federal Counsel.

PCrLJ 2009 KARACHI HIGH COURT SINDH 836 #

2009 P Cr. L J 836

[Karachi]

Before Arshad Noor Khan, J

BARKAT ALI----Applicant

Versus

THE STATE----Respondent

Criminal Revision Application No.24 of 2009, decided on 25th March, 2009.

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

----S. 13(e)---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence-'Recovery of weapon---Principles---Petitioner/accused who was arrested in a murder case, during investigation, disclosed about concealment of crime weapon and voluntarily led the Police party to the heap of wheat from where he took out pistol along with five bullets and handed over to complainant/S.H.O. who prepared the Mashirnama of arrest and recovery at the spot---Section 103, Cr.P.C. spoke about the proposition of picking-up the respectable Mashir of the locality when the Police party was going to search the property or for recovery of certain material---Accused, in the present case having voluntarily led Police party and voluntarily surrendered crime weapon or case property from the place where he had hidden it, condition of picking-up of the Mashir of the locality was not the requirement of S.103, Cr.P.C.---Section 103, Cr.P.C. having not debarred the police official to act as Mashir, no ban, therefore, could be imposed on Police official not to act as Mashir---Nowhere in the cross-examination, any material had been fished out from the statement of the complainant and other prosecution witnesses to show that the Police Officials possessed any grudge or enmity to implicate the petitioner falsely in the case to foist the crime weapon on him---Evidence of Police Officials, could be treated as good as evidence of any other independent witness, provided the Police Officials had been through the test of cross-examination---In absence of any material to the effect that Police Officials had implicated accused for certain extraneous consideration or had acted mala fide, their evidence could not be brushed aside---Both courts below had rightly considered the evidence brought on record---Minor and trivial contradictions in the case of the prosecution, which were humanly possible, could not reflect adversely on the recovery of crime weapons---Petition was dismissed, in circumstances.

Shamsuddin N. Kobher for Applicant.

Agha Ather Hussain Asstt. A.-G. for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 845 #

2009 P Cr. L J 845

[Karachi]

Before Mrs. Qaiser Iqbal, J

Syed IQRAR SHAH----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.71 of 2009, decided on 26th March, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Further inquiry---Occurrence had taken place in an unknown manner and case prima facie was based upon circumstantial evidence---In a case of circumstantial evidence, every chain of evidence was required to be linked with the other chain of evidence establishing the guilt of accused---In the present case question of `Qisas' did not arise and only the sentence of Diyat could be awarded, which was in the shape of compensation payable to the legal heirs of the deceased---Legal heirs of the deceased had pardoned the accused---Only evidence available with the prosecution against accused was a confessional statement and recovery of trolley, which was allegedly used for shifting the dead body of the deceased to graveyard; were not sufficient, prima facie, to implicate accused in commission of crime---Case against accused fell within the purview of further enquiry---Compromise having been effected by the major legal heirs of the deceased, who were competent to compound the offence, accused was entitled to the concession of bail---Accused was admitted to bail, in circumstances.

Noor Muhammad v. Muhammad Iqbal 1997 Cr.LJ 561 and Muhammad Shafat v. The State 2004 PCr.LJ 864 rel.

Waqar Shah and Muhammad Arif Niazi for Applicant.

Iqbal Ahmed Kalhoro, Addl. P.-G. Sindh for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 850 #

2009 P Cr. L J 850

[Karachi]

Before Nadeem Azhar Siddiqi, J

MUHAMMAD TAHIR----Applicant

Versus

THE STATE----Respondent

Criminal Miscellaneous Application No.8 of 2009, decided on 30th March, 2009.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), S.397---West Pakistan Arms Ordinance (XX of 1965), S.13(d)-Running sentences concurrently, Applicant had prayed that after considering the period of his confinement in jail and remission admissible to him he could be released---Jail roll had shown that total sentence awarded to applicant in both cases was nine years and nine months---Applicant had served three years, eleven months and twenty seven days, had earned remission for one year, two months and nineteen days and unexpired portion of the sentence was four years six months and fourteen days---Trial Court while passing the subsequent conviction and sentence, ought to have exercised discretion in favour of the applicant---Non-exercise of discretion in favour of the applicant would amount to miscarriage of justice and could be interfered with by the High Court by exercising jurisdiction under S.561-A, Cr.P.C.---State Counsel had no objection for providing concession to the applicant---High Court ordered that the sentence in both the offences i.e. S.397, P.P.C. and S.13(d) of West Pakistan Arms Ordinance, 1965 be run concurrently.

Bashir v. State PLD 1991 SC 1145; Shamshad Hussain alias Shamla v. State 2002 MLD 1079 and Abdul Ghafoor v. The State 2007 YLR 700 rel.

Asadullah Baloch, State Counsel for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 881 #

2009 P Cr. L J 881

[Karachi]

Before Nadeem Azhar Siddiqi, J

MUHAMMAD SALMAN and 3 others----Applicants

Versus

THE STATE----Respondent

Criminal Miscellaneous Application No.32 of 2009, decided on 22nd April, 2009.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Emigration Ordinance (XVIII of 1979), Ss.17/22---Quashing of proceedings---Scope- -Applicants had directly approached High Court without first approaching the Trial Court---Counsel for applicants had failed to demonstrate any extraordinary circumstances for directly approaching the High Court---Quashing of a criminal case was an extraordinary remedy which could be invoked only in exceptional circumstances where trial of accused would tantamount to abuse of process of court---Provisions of S.561-A, Cr.P.C. could never be exploited as a substitute for the prescribed trial---When law provided a detailed inquiry into offence, then ordinarily and normally the procedure prescribed by law for deciding the fate of the case should be followed, unless some extraordinary circumstances were shown to exist to abandon the regular course and follow the exceptional course---Test for interference in the pending criminal proceedings was that, if the proceedings were allowed to continue they should result in grave miscarriage of justice and there should exist no other provisions of law by which the aggrieved party could seek relief---Other test laid down was that the allegation in the F.I.R. and the statement of the witnesses recorded by the Police, if taken at their face value and accepted in their entirety, no offence was made out---Inherent power of High Court under S.561-A, Cr.P.C. could not be invoked in the presence of other specific remedy available to the applicants---Power under said S.561-A, Cr.P.C. could only be invoked in the rare case where there appeared to be no probability of conviction of accused---No case for direct approaching High Court having been made out, application quashing of proceedings filed under S.561-A, Cr.P.C. was dismissed, in circumstances.

Muhammad Adnan for Applicants.

Mian Khan Malik, D.A.-G. for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 903 #

2009 P Cr. L J 903

[Karachi]

Before Syed Pir Ali Shah, J

YAQOOB ALI and another----Applicants

Versus

THE STATE----Respondent

1st Criminal Bail Application No.155 of 2009, decided on 30th March, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, refusal of---Eye-witness had not only narrated the facts of the incident as seen by him, but he had also identified both the accused in the identification parade held before the Magistrate---Ground of hardship mainly pressed in the case was also not available to accused keeping in view the depositions of the prosecution witnesses recorded so far by the Trial Court and the manner in which they had been cross-examined---Case diaries had also revealed that on certain dates of hearing adjournments were sought by the accused themselves---Case of accused did not call for any further inquiry---Bail was declined to accused in circumstances---However, Trial Court was directed to expedite the proceedings and decide the case within a specified period.

2004 YLR 2592; 2009 YLR 296; 2003 MLD 19; 2008 YLR 995; 2008 YLR 1179; 2007 YLR 824; 1995 MLD 1457; 2008 YLR 1632 and 2007 MLD 19 ref.

Muhammad Hanif Samma for Applicants.

Ghulam-e-Nabi Simair, Prosecutor of the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 929 #

2009 P Cr. L J 929

[Karachi]

Before Nadeem Azhar Siddiqi and Maqbool Ahmed Awan, JJ

LIAQUAT ALI---Appellant

Versus

MAHMOOD and 2 others---Respondents

Criminal Acquittal Appeal No.D-50 of 2008, decided on 17th March, 2009.

Penal Code (XLV of 1860)---

----S. 302/34---Criminal Procedure Code (V of 1898), S.417(2-A)---Appeal against acquittal---Accused were shown in the F.I.R. empty-handed at the time of occurrence---Role of committing the murder was assigned to the absconding accused, who had a quarrel with the deceased over the fare charges---Complainant and eye-witnesses had made improvements in their statements to implicate the accused in the offence, which contained major contradictions making the prosecution case doubtful against them---Trial Court had appreciated the evidence according to the principles laid down by the Supreme Court and rightly extended to the benefit of doubt in favour of accused---Appeal against acquittal of accused was dismissed accordingly.

Hadi Bux v. The State PLD 1963 Kar. 805; Zaheer Din v. The State 1993 SCMR 1628; Munawar Shah v. Liaquat Hussain and others 2002 SCMR 713; Muhammad Shah v. Muhammad Raza and another 2008 SCMR 329; Farhat Azeem v. Asmatullah and 6 others 2008 SCMR 1285 and Imtiaz Asad v. Zain-ul-Abidin 2005 PCr.LJ 393 ref.

Nemo for Appellant.

Nazeer Ahmed Bhatti for Respondents Nos.1 and 2.

Anwar H. Ansari, State Counsel.

Date of hearing: 17th March, 2009.

PCrLJ 2009 KARACHI HIGH COURT SINDH 964 #

2009 P Cr. L J 964

[Karachi]

Before Abdul Rasheed Kalwar, J

BASAR KHAN----Applicant

Versus

THE STATE and another----Respondents

Criminal Miscellaneous Application No.248 of 2008, decided on 16th March, 2009.

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

----S. 489-F---Criminal Procedure Code (V of 1898), Ss.561-A & 169---Accused released by Magistrate on the report of Investigating Officer submitted under S.169, Cr.P.C.---Validity---Cheque issued by the accused in pursuance of the sale agreement of the property neither appeared to have been issued dishonestly nor with the intention of cheating or defrauding the complainant---No mens rea was apparently available in the case against the accused---On the contrary, it was the bona fide of the accused whose first cheque of Rs.9,00,000 was encashed, but after discovery that the property in question did not belong to the complainant but to the Government, he was not under an obligation to allow the encashment of the remaining two cheques---Complainant himself appeared to have attempted to cheat the accused, who was well within his rights to get the payment of remaining cheques stopped from the Bank---Case against accused was based on documentary evidence and even if believing whole story of the complainant as true, no case under S.489-F, P.P.C. was made out against the accused---Even otherwise, matter between the parties being one of civil dispute, they were at liberty to pursue their remedies before the Civil Court---Ipsi dixit of police, no doubt, could decide the fate of the case and was not binding on the Court, but it would also be most unfair to drag an innocent person into Court and leave him to face hardships of criminal trial, though prima facie offence was not made out against trim---Police and Magistrate were not prevented and precluded by any provision of law from acting fairly and justly, rather the law favoured justice and fairplay at every stage of the case---Petition of complainant was dismissed in Iimine in circumstances.

PLD 2005 Lah. 207 and PL,D 2006 Lah. 752 ref.

Mst. Zohra Bibi v. The State PLD 1992 Pesh. 80 and Dildar v. Safdar and 2 others 1990 PCr.LJ 158 distinguished.

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

----S. 169---Release of accused, when evidence deficient---Rule of caution---Police Officer in exercise of his powers under S.169, Cr.P.C. is to act with great care and caution, lest a guilty person should go scot free without facing his trial, and he can do so only when there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of accused to a Magistrate---Insufficiency of evidence or non-existence of reasonable ground, however, is one thing and evaluation of evidence forthcoming for and against the accused at the investigation stage, is another thing--Police Officer at the investigation stage is not at all supposed to arrogate to himself the functions of adjudication in order to determine the nature of offence and then to give a pre-trial verdict of the innocence of the accused.

Dildar v. Safdar and 2 others 1990 PCr.LJ 158 ref.

----S.169---Release of accused in absence of sufficient evidence---Administration of criminal justice---Duty of Investigating Officer and Magistrate---Ipsi dixit of police to decide the fate of the case and opinion of Investigating Officer no doubt, are not binding upon the Court, but it would also be most unfair to drag an innocent person into Court to face hardships of criminal trial, though prima facie offence is not made out against him---Police and Magistrate are not prevented and precluded by any provision of law to act fairly and justly---Law on the contrary favours justice and fair play at every stage of the case.

Khadim Hussain for Applicant.

PCrLJ 2009 KARACHI HIGH COURT SINDH 989 #

2009 P Cr. L J 989

[Karachi]

Before Nadeem Azhar Siddiqi, J

HYDLR ALI BHMJI---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Applications Nos.478, 236 of 2000 and 8 of 2001, decided on 30th April, 2009.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 249-A---Penal Code (XLV of 1860), Ss.471, 420, 465, 467, 468, 477-A & 109/34---Prevention of Corruption Act (II of 1947), S.5(2)---Quashing of proceedings---Scope---In the F.I.R. names of applicants/accused persons were appearing with the role of forging and tampering documents with the fraudulent intention to deprive the complainant from her lawful property---Allegations against the applicants were forging, manipulating the documents in connivance with each other---Proceedings could be quashed at any stage of proceedings, if there was no probability of his conviction---For invoking the provisions of S.249-A, Cr.P.C., accused had to show that even if material available on record was taken to be true at its lace value, there would be no probability of his conviction---Material was available on record against the applicants and until proper evidence was recorded, it could not he said that no probability of conviction of' accused/applicants existed---Quashing of a criminal case was an extraordinary remedy which could be invoked only in exceptional circumstances, where trial of accused tantamounted to abuse of process of court and the provisions of S.561-A, Cr.P.C. could never be used as a substitute for the prescribed trial---When law provided a detailed enquiry into offence, then ordinarily and normally the procedure prescribed by law for deciding the fate of the case should be followed, unless some extraordinary circumstances were shown to abandon the regular course and follow the exceptional course---Test for interference in criminal proceedings was that if the proceedings were allowed to continue those should result in grave miscarriage of justice; and there should exist no other provisions of law by which the aggrieved party could seek relief -Other test was that the allegation in the F.I.R. and the statement of witnesses recorded by the Police, if taken at their face value and accepted in their entirety, no offence was made out and no probability of the conviction of accused existed---Applicants had failed to demonstrate the extraordinary circumstances for directly approaching high Court for quashing of proceedings---Applications for quashing of proceedings, were dismissed---Criminal proceedings, however, were stayed during the pendency of civil litigation.

A. Habib Atoned v. M.K.G. Scott Christian PLD 1992 SC 353; Soofi Muhammad Anwar v. Mst. Badshah Begum 1999 SCMR 1475; Akbar Ali Sharif v. Syed Jamaluddin 1991 MLD 203; Gianchand v. The State 1968 SCMR 380; Shaikh Muhammad Yamin v. The State 1973 622; Muhammad Khalid Mukhtar v. The State PLD 1997 SC 275 and Abdul Haleem v. State 1982 SCMR 988 rel.

Muhammad Ashraf Kazi for Applicant (in Criminal Miscellaneous No.478 of 2000).

Muhammad Farooq for Applicant (in Criminal Miscellaneous No.236 of 2000).

Ali Mumtaz for Applicant (in Criminal Miscellaneous No.8 of 2001).

Shoukat Hussain Zubedi for the Complainant (in all Criminal Miscellaneous Applications).

Syed Ahmed Ali Shah, Standing Counsel for the State (in all Criminal Miscellaneous Applications).

Date of hearing: 15th April, 2009.

PCrLJ 2009 KARACHI HIGH COURT SINDH 1019 #

2009 P Cr. L J 1019

[Karachi]

Before Zafar Ahmed Khan Sherwani, J

Sheikh AIJAZ AHMED---Petitioner

Versus

D.-G. NAB----Respondent

Constitutional Petition No.D-1390 of 2008, decided on 21st October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---National Accountability Ordinance (XVIII of 1999), S.18(g)---Bail, grant of---Accused in collusion with co-accused was alleged to have committed the alleged offence---Co-accused involved in reference having been admitted on bail, on the principle of consistency, accused was also required to be placed in the same position---Role attributed to accused was not subservient to that of co-accused and the question of non-performance of duty by co-accused purporting to their neglect in performance of the duty would be adjudicated at trial---Investigation in the case had been completed, trial had commenced, but not a single witness had been examined in the span of one year and five months after the charge was framed---Object of the National Accountability Ordinance, 1999 was limited to the expeditious disposal of the cases and inordinate delay in the case had frustrated the object of law---Deputy Prosecutor General appearing for NAB was unable to justify the situation as to why the prosecution was unable to conclude the case expeditiously as envisaged under the law---Bail was granted to accused importing the doctrine of consistency.

Tariq Javid Afridi v. The State PLD 2002 Lah. 233 ref.

Javed Ahmed Rajput for Petitioner.

Aslam Butt D.P.-G. NAB.

PCrLJ 2009 KARACHI HIGH COURT SINDH 1048 #

2009 P Cr. L J 1048

[Karachi]

Before Muhammad Karim Khan Agha, J

FIDA HUSSAIN alias MIR JATT----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.517 of 2009, decided on 27th May, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324/353/34---Bail, grant of---Further inquiry---Allegations against accused was of firing on the Police while he was going in his car along with his companions---On search of his car a pistol, kalashnikov with bullets and a rocket launcher were recovered---Accused had been in jail for over two and half years, but not a single witness had been examined in the case---Prosecution was obliged to prove its case against accused---Under the Constitution of Pakistan no one should be deprived of his liberty unless in accordance with law---In bailable cases, bail was a rule, rather than exception---Case against accused though was a non-bailable case, but it was a case of further inquiry, and that the prosecution had failed to proceed with the case expeditiously---Accused was enlarged on bail, in circumstances.

Illahi Bux v. The State 2001 PCr.LJ 1731 ref.

Rab Nawaz Khan for Applicant.

Sardaruddin Qureshi for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 1055 #

2009 P Cr. L J 1055

[Karachi]

Before Muhammad Karim Khan Agha, J

MUHAMMAD MAJID----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.483 and C.M.A.1816 of 2009, decided on 27th May, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.392/413/34---Bail, grant of---Trial Court which had declined bail to accused, had indicated that accused could repeat his bail application after recording of evidence of the complainant---High Court had power to refer the matter back to the Trial Court in order to allow accused to again file bail application before the lower court---However, since five months had passed and the complainant had not recorded his statement, that would just unnecessarily delay bail application of accused---Each case must be decided on its own facts and circumstances and not by reference to other cases, especially those which had not been proved---State was supposed to prove its case against accused and to do so expeditiously---Fundamentals of the grant of the bail concerned, were whether accused would abscond, interfere with prosecution witnesses or commit other crimes---In the present case, there seemed to be a limited chance of any such occurrence---Bail should be the rule rather than exception as it would not be just to confine an accused in jail for long period of time, whilst the prosecution dragged its feet in proceeding with the case---Accused was admitted-to bail, in circumstances.

Muhammad Danish v. State 2006 YLR 2824; Farman Ali v. State 1997 SCMR 971; Tariq Bashir v. State PLD 1995 SC 34 and State v. Kabeer Khan PLD 2005 SC 364 rel.

Kanwar Altaf for Applicant.

Sardaruddin, A.P.-G. for the State

PCrLJ 2009 KARACHI HIGH COURT SINDH 1089 #

2009 P Cr. L J 1089

[Karachi]

Before Maqbool Baqar, J

ZULQARNAIN SIKANDAR----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.231 of 2009, decided on 13th April, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(c)---Bail, grant of---Further inquiry---Prosecution story as narrated in the F.I.R. itself did not inspire confidence---Was difficult to conceive that a person, who informed Anti-Narcotic Force regarding presence of narcotic substances in a house and then led them to such house, would in presence of one of the members of the raiding party place Charas in the open i.e. the lawn of the house; it was all the more unbelievable that such a person, would be allowed to walk away scot-free despite the fact that armed personnel of the force were not only posted inside the house and at the very spot where the bag was placed, but the house was also encircled by them---No recovery had been made from the person or the place of accused---Co-accused, who was said to have admitted before the Investigating Officer that he along with other co-accused brought the Charas had been granted bail---Investigation in the case had been concluded and final challan had been submitted---Charas had not been recovered from the actual possession of accused, who allegedly escaped from the scene---As it was yet to be ascertained as to whether accused was actually in possession of the Charas, case against him was of further inquiry---Statement of the constable against him was to be considered by the Trial Court---Accused was entitled to the benefit of reasonable grounds and doubts and bail in the facts and circumstances of the case could not be refused to accused, merely because the offence shown in the F.I.R. was punishable with death---Accused was admitted to bail, in circumstances.

Anwar v. The State 2005 MLD 950; Aslam Khan v. Qaiser Khan and 2 others 1999 PCr.LJ 582 and Gul Zaman v. The State 1999 SCMR 1271 ref.

Ajab Khan Khattak for Applicant.

Syed Ashfaq Hussain Rizvi, Special Prosecutor, ANF for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 1103 #

2009 PCr. LJ 1103

[Karachi]

Before Khadim Hussain M. Shaikh, J

HABIBULLAH JATOI----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-205 of 2009, decided on 18th May, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324/148/149/452---Bail, grant of---Injured complainant in his first report did not disclose name of any accused nor narrated story of the incident---Statements of the prosecution witnesses under S.161, Cr.P.C. were also recorded after five months of the incident without any explanation thereof----Recorded old hostility existed between the parties---Accused remained on interim pre-arrest bail for about six months without any complaint of misusing of concession of bail and had since joined the trial---Accused having made out case for grant of bail, he was admitted to bail, in, circumstances.

Mazhar Ali M. Siddiqui for Applicant.

Niaz Hussain Mirani for the Complainant.

Miss Robina Dhamrah State Counsel.

PCrLJ 2009 KARACHI HIGH COURT SINDH 1119 #

2009 P Cr. L J 1119

[Karachi]

Before Mehmood Alam Rizvi and Maqbool Ahmed Awan, JJ

UMER----Appellant

Versus

THE STATE----Respondent '

Criminal Appeal No.D-148 and Confirmation Case No.6 of 2006, decided on 21st April, 2009.

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

----S. 302(b)---Appreciation of evidence---Benefit of doubt, extension of---Principle---Benefit of even a slightest possible doubt created in the case, must go in favour of accused.

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

---S. 302(b)---Appreciation of evidence---Statement of accused to be believed in toto, if prosecution case against him remains un-established---Where prosecution fails to establish its case against the accused, then for dispensation of justice statement of accused recorded under S.342, Cr.P.C. is to be looked into and believed in totality.

Ashiq Hussain alias Muhammad Ashraf v. The State PLD 1994 SC 879 ref.

----S. 302(b)---Appreciation of evidence---Prosecution case was full of contradictions on various points, particularly the manner of occurrence---Enmity existed between the parties---Complainant and eye-witnesses had made exaggerations in their evidence---Despite disinterested persons being available at the place of occurrence, only interested persons were chosen as witnesses---Trial Court had unlawfully convicted the accused while acquitting co-accused on the basis of same evidence---Accused was also entitled to same treatment on the ground of rule of consistency---Prosecution case was replete with glaring defects, legal infirmities and material irregularities---Weak motive set up by prosecution was not proved---Impugned judgment was vague, arbitrary and fanciful and had been recorded without a careful and proper consideration of relevant facts and circumstances---Benefit of the slightest doubt in the case had to be given to accused without any reservation---Accused was acquitted in circumstances.

Ashiq Hussain alias Muhammad Ashraf v. The State PLD 1994 SC 879; Akhtar Ali and others v. The State 2008 SCMR 6; 2005 YLR 2279 and PLD 1999 Lah. 56 ref.

(d) Criminal trial---

---Benefit of doubt, extension of---Giving benefit of doubt to an accused is much more than a mere rule of law---It is the rule of "prudence" which no man ought to and no Judge, acting in accordance with the provisions of Qanun-e-Shahadat, can ignore and this rule has been vigorously enforced by Islam and recognized as one of the foundations of all good and civilized societies.

PLD 1999 Lah. 56 ref.

Noorul Haq Qureshi for Appellant.

Mumtaz Alam Leghari, Asst. A.-G. for the State.

Date of hearing: 25th March, 2009.

PCrLJ 2009 KARACHI HIGH COURT SINDH 1186 #

2009 P Cr. L J 1186

[Karachi]

Before Arshad Noor Khan, J

SATTAN KUMAR----Applicant

Versus

MUHAMMAD YOUSIF----Respondents

Criminal Revision No.48 and Miscellaneous Application No.1719 of 2008, decided on 14th April, 2009.

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

----Preamble & S.3---Purpose of Illegal Dispossession Act, 2005---Illegal Dispossession Act, 2005, had been promulgated to save the lawful possession of the owner over the property against unlawful dispossession at the hands of 'Qabza group' or `Land mafia'---Preamble of Illegal Dispossession Act, 2005 had shown that the lawful possession of a person had been protected though the possession of the occupier might not be in the capacity of owner, but the condition precedent for the said purpose was that the possession of person over the property in question must be lawful, meaning thereby the said possession was recognizable under the law.

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

----S. 3---Appreciation of evidence---Complainant moved revision application against the order passed by the Trial Court, whereby the direct complaint filed by the applicant under S.3 of Illegal Dispossession Act, 2005 had been dismissed summarily---Applicant in his direct complaint had alleged that after purchase of the portion of agricultural land he inducted the respondent as tenant over said property who was paying share and-Batai,' but later on he illegally stopped the payment of the same---Said admission of the applicant itself had shown that respondent had not dispossessed the applicant, from his possession over the property in question illegally, unauthorisedly or forcibly---On the contrary the applicant had himself inducted him in the possession of disputed land--Provisions of S.3 of Illegal Dispossession Act, 2005 were not applicable in the case, in circumstances-Applicant nowhere in his complaint had alleged that the respondent belonged to "Qabza group" or was well-known as member of' "Land mafia" to grab or unauthorisedly occupied the land of the lawful owner---Provisions of Illegal Dispossession Act, 2005 being not applicable in the case, direct complaint filed by the applicant, was rightly dismissed summarily by the Trial Court---Revision application being not maintainable, was dismissed in circumstances.

Rahim Tahir v. Ahmed Jan and 2 others PLD 2007 SC 423; Nazir Ahmed v. Asif and 4 others PLD 2008 Kar. 94 and PLD 2007 Lah. 231 ref.

Pritamdas Marwari for Applicant.

Ali Haider Dareshani, State Counsel.

PCrLJ 2009 KARACHI HIGH COURT SINDH 1192 #

2009 P Cr. L J 1192

[Karachi]

Before Faisal Arab and Muhammad Karim Khan Agha, JJ

MUHAMMAD HANIF S. KALIA and 2 others----Applicants

Versus

THE STATE----Respondent

Bail Application No.571 of 2009, decided on 6th July, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Foreign Exchange Regulation Act (VII of 1947), Ss.5, 8, 22 & 23---Prevention of Electronic Crimes Ordinance (LXXII of 2007), Ss.7, 8 & 20---Penal Code (XLV of 1860), Ss.420, 467, 471, 477-A & 34---Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), Preamble, Ss.2(d) & 5(6)---Bail, refusal of---Case against applicants, who were Directors/share-holders in a Foreign Exchange Company, was that they had set up an illegal parallel website, which enabled them to illegally and secretly engage in unreported forex and Hawala Trading, by said mechanism of the applicants there was no physical transfer of any forex from Pakistan and that as a result of said illegal forex/Hawala Trading the applicants had breached and/or violated the rules and regulations of the State Bank of Pakistan, the terms of their license and also other laws such as Foreign Exchange Regulation Act, 1947; Prevention of Electronic Crimes Ordinance, 2007 and Penal Code, 1860 which had the result of depriving the national exchequer of huge amounts of forex which it would have earned in the shape of commission had the transactions been carried out through regular State Bank of Pakistan channels---Inquiry had been initiated on a complaint made by the State Bank of Pakistan---Matter was directly connected to offences committed in respect of banks and triable under Offences in Respect of Banks (Special Courts) Ordinance, 1984---Offence being a white collar crime it was not unusual that most of the evidence was of documentary nature and for High Court to rule upon the admissibility of documents prior to the trial would amount to usurping the right of the Trial Court to try the case under the appropriate laws of procedure and evidence as laid down in Cr.P.C. and the Qanun-e-Shahadat, 1984---Court, in bail application, was only entitled to make brief review of the case file in order to determine whether prima facie case had been made. out and not to look into such details as the admissibility of documents, the manner of the seizure etc. which were all matters which were to be properly adjudicated upon by the Trial Court at first instance when prosecution sought to admit the documents in evidence---Some accused, in the present case, had already been granted bail and on that basis the applicants claimed to be entitled to bail on the rule of consistency---Each case, however, would turn on its own particular facts and circumstances and applicants' case was distinguishable from the other accused---Role and level of participation in crime between the applicants and accused who had been granted bail, therefore, stood on entirely different footing, as such rule of consistency was not applicable in the case--Offences in Respect of Banks (Special Courts) Ordinance, 1984 being applicable, the offences became non-bailable for which the requirements of S.497(2), proviso, Cr.P.C. needed to be satisfied---No hard and fast rule existed on the issue of matter being of further inquiry and mere possibility of further inquiry existed in nearly all bail-related cases--Prosecution, in circumstances, had been able to establish a nexus between the applicants and the illegal parallel website which was allegedly used in order to carryout forex scam and had thus made out a prima facie case against the applicants---Case of applicants, therefore, was not that of further inquiry and allegations against the applicants based on the documents on the file of Special Court were certainly not groundless---Case of applicants could be regarded as one of heinous nature as it not only involved huge sums of money but such offences, if proven, were against the interest of society and in such circumstances bail had been denied even in bailable offences---Case of applicants, though was not a corruption case, it nevertheless deprived the State Bank of Pakistan and the country of potentially millions of US Dollars---Case of applicants was that of serious allegations of fraud and forgery---Where the offence was non-bailable the court needed to be more cautious in granting bail`--Bail, in the present case, was not being denied as a punishment---White collar crime on the scale and sophistication as were taking today would not have been contemplated by the authors of Foreign Exchange Regulation Act, 1947, the law must evolve to meet the needs of an ever changing and developing society---Maximum sentence in Foreign Exchange Regulation Act, 1947, therefore, could not be considered a yardstick for granting bail---Applicants having contacts abroad, were wealthy and influential persons, faced with gravity of such charges and evidence they might also be inclined to abscond---High Court observed that it would be premature to interfere, at this stage, with the impugned order---Prosecution having made out a prima facie case against the applicants the bail was declined to all the applicants-High Court further observed that applicants had already spent about eight months in custody and they had a concern that since the present case involved a large number of documents the trial might take long time to complete, since the trial was being proceeded with under Offences in Respect of Banks (Special Courts) Ordinance, 1984, which, in its Preamble stipulates for speedy trial, it was expected in any event, that the trial be proceeded with expeditiously---High Court directed that Trial Court should at the earliest opportunity deal with the question of admissibility of documents and to complete the trial of the applicants within six months from the date of present order of the High Court.?

Muhammad Hashim v. Presiding Officer, Special Banking Court 2006 PCr.LJ 1886; A. Habib Ahmed v. M.K.G. Scott Christian PLD 1992 SC 353; Shujat Hussain v. State 1995 SCMR 1249; Abdul Aziz Khan Niazi v. State PLD 2003 SC 668; Muhammad Daud v. State 2008 SCMR 173; Muhammad Saeed Mehdi v. State.2002 SCMR 282; Abdul Majid v. Judge Special Court (Offences in Banks) 1986 PCr.LJ 890; Saeed Ahmed v. State 1996 SCMR 1132; Amir Ahmed Hashmi v. State PLD 2004 Kara 617; Muzammil Niazi v. State PLD 2003 Kar. 526; Manzoor v. State PLD 1972 SC 81; Amir v. State PLD 1972 SC 277; Muhammad Hanif v. State 1978 SCMR 69; Muhammad Aslam v. State 1992 MLD 880; Asif Jameel v. State 2003 MLD 676(c); Salim Javed Durrani v. State 2005 PCr.LJ 22; Nusratullah v. State 1995 MLD 1635(b); Rukhsar Ahmad v. State 2005 PCr.LJ 988(a); Muhammad Farooq Afridi v. State 2003 YLR 2700(d); Muhammad Bashir Guraya v. Raja Muhammad Irshad 2005 YLR 1220(b); Sajjad Hussain v. State PLD 1996 Lah. 286(a); Khalil Ahmad v. State 2003 PCr.LJ 1754; Muhammad Riaz Munna v. State 1993 SCMR 1321; Mazullah v. Abdur Rehman 1997 SCMR 1836; Suba Khan v. Muhammad Ajmal 2006 SCMR 66(c); Muhammad Khan v. State 2001 PCr.LJ 1766; Maujan Jatoi v. State 2001 YLR 2849; Mir Hassan v. State PLD 2006 Kar. 472; Collector of Sales Tax and Central Excise v. Mega Tech (Pvt.) Ltd. 2005 SCMR 1166; Collector of Sales Tax and Central Excise v. Mega Tech (Pvt.) Ltd. 2005 PTD 1933 and Mehboob Kukaswadia v. State Criminal Bail Applications Nos.50 to 52 of 2004 distinguished.

Haq Nawaz Malik v. State 2002 PCr.LJ 739; Province of Punjab v. Muqrab Ali 2008 SCMR 572; Muhammad Hayat v. State 1999 PCr.LJ 1352; Tubbasam Ahmed Qureshi v. State 2000 PCr.LJ 105; Khalid Hussain v. Kala Khan 2004 PCr.LJ 1080; Muhammad Aziz v. Kamal Khan 2001 SCMR 1727; Fatima v. Abdul Majid 2004 YLR 400; Sirajuddin v. G.M. Khan 1990 CLC 331; Ghulam Ali v. Hashum 1986 CLC 1165; Hakim Ali Bhatti v. Abdul Hakim 1986 CLC 1784; Ghulam Hussain v. State 1990 PCr.LJ 577; Sikandar A. Karim v. State 1995 SCMR 387; Tariq Bashir v. State PLD 1995 SC 34; Ghulam Abbas v. State 2005 PCr.LJ 244; Parveen Akhtar v. State 2002 SCMR 1886; Hazurdad v. Sajid Khan 1998 PCr.LJ 633; Abdullah Shah v. State 2002 PCr.LJ 1387; Muhammad Zarat Khan v. State PLD 2007 Kar. 29; Shamrez Khan v. State 1999 PCr.LJ 128; Mehrban Ali v. State 2004 SCMR 229; Superintendent of Police v. Muhammad Latif PLD 1988 SC 387; Sharaf Faridi v. Federation of Islamic Republic of Pakistan PLD 1989 Kar. 404; Criminal Law by Smith and Hogan 5th Edn. P.10 and Muhammad Ali v. State 2008 PCr.LJ 1360 ref.

Dr. Muhammad Farogh Naseem and Shaukat Hayat for Applicants.

Shahab Sarki Standing Counsel.

PCrLJ 2009 KARACHI HIGH COURT SINDH 1226 #

2009 P Cr. L J 1226

[Karachi]

Before Mrs. Yasmin Abbasey and Abdur Rahman Faruq Pirzada, JJ

MIAN DAD LEGHARI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.D-120 of 2004, decided on 2nd June, 2009.

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

----Ss. 302(b)/149 & 364/149---Anti-Terrorism Act (XXVII of 1997), S.7(a)---West Pakistan Arms Ordinance (XX of 1965), S.13(e)---Appreciation of evidence---Benefit of doubt---None of the three eye-witnesses including the complainant was found to have seen the incident of murder---Contradictions in F.I.R., statements under S.161, Cr.P.C. and depositions of eye-witnesses in Court, had made the ocular testimony, doubtful---Major improvements had been made by eye-witnesses in their statements before the Court with certain interest and motivation---Neither the names of the four accused,. who had fired on the deceased, were disclosed nor the weapons used by them in firing were mentioned---Complainant and all the private prosecution witnesses were closely related to both the deceased---With the background of major improvements made by the 'complainant and eye-witnesses in their statements, non-association of independent witnesses had significantly suggested the possibility of the case having been manipulated against the accused---Improved statements made by eye-witnesses in order to strengthen the prosecution case, had lost their credibility and evidentiary value---Gun recovered from the accused having not been sealed at the place of recovery, its recovery had become doubtful and recovery of crime-empties from the spot was of no help to prosecution---Unexplained inordinate delay of 26 days in dispatching the gun and the empties for expert's opinion, had seriously undermined the evidentiary value of the said recoveries-,-Accused was acquitted on benefit of doubt in circumstances.

Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Amir Zaman v. Mehboob and others 1985 SCMR 685; Haji Bakhsh v. The State PLD 1963 Kar. 805; Qaim Din and others v. The State 1971 PCr.LJ 229; Fazla and another v. The State PLD 1960 Lah. 373; Hadi Bukhsh v. The State PLD 1963 (W.P.) Kar. 805; Ghulam Hussain and others v. The State 1980 PCr.LJ 685; Muhammad Azad v. Ahmed Ali and 2 others PLD 2003 SC 14; Ghulam Muhammad and others v. .The State 1980 PCr.LJ 685; Allahando v. The State 1969 SCMR 714; Muhammad Shafi and another v. The State PLD 1968 Lah. 869; Beekho alias Imam Bux and 2 others v. The State 1973 PCr.LJ 896; Bacho and others v. The State PLD 1963 Kar. 891; Tariq Pervez v. The State 1995 SCMR 1345; Gul Muhammad alias Gullo v. The State 2004 YLR 216; Haq Nawaz and others v. The State and others 2000 SCMR 785; Muhammad Khan and others v. The State 1999 SCMR 1220 and Amin Gull v. Rashid Khan and another 2003 YLR 2666 ref.

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

----Ss. 302(b)/149 & 364/149---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Appreciation of evidence---Improvements made by eyewitnesses---Effect---Statements of witnesses in which improvements are made in order to strengthen the prosecution case, loose their credibility and evidentiary value.

----Ss. 302(b)/149 & 364/149---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Appreciation of evidence---Incriminating recoveries---Sending of crime-empties and weapons of offence together after a long delay will cast a serious doubt and will be of no legal value.

Ghulam Muhammad and others v. The State 1980 PCr.LJ 685; Allahando v. The State 1969 SCMR 714; Muhammad Shafi and another v. The State PLD 1968 Lah. 869; Beekho alias Imam Bux and 2 others v. The State 1973 PCr.LJ 896 and Bacho and others v. The State PLD 1963 Kar. 891 ref.

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

----Ss. 302(b)/149 & 364/149---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Appreciation of evidence---Benefit of doubt, extention of---Principle---For giving benefit of doubt to accused many circumstances creating doubts are not necessarily required---Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to such benefit, not as a matter of grace and concession, but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345; Gul Muhammad alias Gullo v. The State 2004 YLR 216; Haq Nawaz and others v. The State and others 2000 SCMR 785 and MuhammadKhan and others v. The State 1999 SCMR 1220 ref.

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

---Ss. 302(b)/149 & 364/149---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Appreciation of evidence---Principle---Quality of evidence and not the quantity of evidence decides the fate of the prosecution case.

Haq Nawaz and others v. The State and others 2000 SCMR 785 and Muhammad Khan and others v. The State 1999 SCMR 1220 ref.

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

---Ss. 302(b)/149 & 364/149-Anti-Terrorism Act (XXVII of 1997), S.7(a)---Administration of justice---Appreciation of evidence---General rule---While convicting an accused for murder, Court after taking into consideration all the facts and circumstances of the case has not only to be satisfied that the murder has been committed, but it must also be satisfied that it is the accused who has committed the murder.

Amin Gull v. Rashid Khan and another 2003 YLR 2666 ref.

Nizamuddin Baloch for Appellant.

Muhammad Iqbal Mehar, A.A.-G. for the State..

Date of hearing: 28th October, 2008.

PCrLJ 2009 KARACHI HIGH COURT SINDH 1256 #

2009 P Cr. L J 1256

[Karachi]

Before Arshad Noor Khan, J

ZULFIQAR ALI----Applicant

Versus

Peer AHMED HUSSAIN and 5 others----Respondents

Criminal Miscellaneous Application No. S-213 of 2006, decided on 8th April, 2009.

Criminal Procedure Code (V of 1898)---

----Ss. 200 & 561-A---Direct complaint, dismissal of---Application against dismissal order---Direct complaint filed by applicant was dismissed by the Magistrate and revision application filed by applicant against said dismissal order was also dismissed---Applicant/complainant had filed application under S.561-A, Cr.P.C. against said dismissal orders---Allegation of applicant was that when he had gone to take back his amount from the respondents, they maltreated and tortured him and also snatched cash from him---Statement of the complainant did not speak about his becoming unconscious because of the alleged torture by the respondents-Even the prosecution witness had not disclosed about the occurrence as deposed by the complainant and his evidence was completely silent regarding the allegation of the case of the complainant---All those circumstances had shown that evidence brought on record, was infirm and contradictory---Two courts below in circumstances had rightly dismissed the direct complaint---Medical certificate produced by the applicant had also not been sufficiently proved through the evidence of Medical Officer---Injuries contained in the medical certificate, were derogatory to the statement of the applicant which also adversely reflected on the case of the applicant---Order dismissing the direct complaint did not suffer from any infirmity or illegality.

Shaikh Amanullah for the Applicant.

Ali Haider Dareshani for the State.

2009 P Cr. L J 1386

[Karachi]

Before Khadim Hussain M. Shaikh and Khalid Ali Z. Qazi, JJ

SHER MUHAMMAD ----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.D-272 of 2009, decided on 1st July, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 353, 365-A, 148 & 149-Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Anti-Terrorism Act (XXVII of 1997), S.7---Bail, refusal of---Name of accused no doubt did not appear in the F.I.R., but abductee had named the accused to be one of the four culprits, who kidnapped him for ransom and thereby he had implicated accused in the commission of crime---Accused remained fugitive from law for more than one and half years and thereafter he was arrested and sent up with the supplementary challan---Advocate for accused had not pleaded any hostility between accused and abductee---Prima facie sufficient material was available against accused to connect him with the offence which fell within the prohibitory clause of S.497, Cr.P.C.---Accused having failed to make out his case for grant of bail, his bail application was dismissed.

Ghulam Ali Rind for Applicant.

Naimatullah Bhurgri, State Counsel for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 1391 #

2009 P Cr. L J 1391

[Karachi]

Before Arshad Siraj Memon, J

BILAL----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.623 of 2009, decided on 22nd July, 2009.

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 had been nominated in the F.I.R. along with other co-accused, but no specific role had been assigned to him---Vicarious liability of accused had yet to be determined---Case of further inquiry had been made out against accused, in circumstances---Accused firstly was not produced before the Trial Court for more than one year and three months from his arrest and thereafter he was also not produced before the Trial Court by the Jail Authorities for about one year and nine months, for which no explanation was available in case diary---Failure of Jail Authorities to produce accused before the Trial Court tantamounted to abuse of power and delay in trial---No necessary measures were taken for expeditious conclusion of the trial---Nature of delay, in such case, was to be assessed and examined on its own merits---Where the court would come to the conclusion that the delay was unexplained, repulsive and unconscionable and that accused or any person on his behalf had not attributed in causing delay, the court could enlarge accused on bail---In the present case where bail was extended on the ground of delay, surety could be substantial to ensure appearance of accused to face trial---Expeditious and transparent trial should be hallmark of dispensation of criminal justice---Accused was admitted to bail, in circumstances.

Yaroo v. The State 2004 SCMR 864; Ghulam Abbas Ilyas Abasi and others v. State PLD 2005 Kar. 255; Gul Beg alias Nangi v. State 2005 PCr.LJ 147; Aarab alias Katoo V. State 2005 PCr.LJ 555; Muhammad Saeed Mehdi 2002 SCMR 282 and suo motu Court Reference PLD 2008 Kar. 285 rel.

Muhammad Farooq for Applicant.

Muhammad Ilyas, Advocate.

Advocate-General, Sindh and Prosecutor-General, Sindh for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 1407 #

2009 P Cr. L J 1407

[Karachi]

Before Muhammad Iqbal Mahar, J

MUMTAZ----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.385 of 2006, decided on 30th July, 2009.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Death of, deceased was unnatural and incident was un-witnessed and no direct evidence was available as none of the prosecution witnesses examined by the prosecution had stated that any of them saw accused and his co-accused while committing murder of deceased---No last seen evidence was available on record and prosecution had failed to prove motive, as not a single word regarding motive had come on record from the mouth of prosecution witnesses examined by prosecution---Prosecution witnesses had stated that shirt of accused was not blood-stained---Chhuri was allegedly recovered after four days of arrest of accused from the factory of complainant in presence of complainant and one Head Constable; and none from the factory or from the vicinity was joined in recovery proceedings---Prosecution had failed to bring report of Chemical Analyzer on record, which could show that human blood was found on the Chhuri---Complainant was interested witness as he was brother of deceased and he himself acted as Mashir of place of occurrence, inspection of dead body, production of shirt of accused, arrest of accused and recovery of Chhuri, which required independent corroboration, which was lacking in the case---Prosecution had failed to establish the case against accused beyond shadow of doubt---Conviction and sentence awarded to accused under impugned judgment of the Trial Court, were set aside---Accused was acquitted of the charge and was directed to be released.

Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047; Muhammad Arshad alias Kali v. The State 2005 YLR 1248; Ghulam Mustafa alias Ziau v. The State PLD 1991 SC 718 and Shahzullah v. The State and another 2004 PCr.LJ 1161 rel.

Muhammad Farooq for Appellant.

Shahzado.Saleem Nahiyoon, Asstt. P.-G. Sindh for the State.

Date of hearing: 23rd July, 2009.

PCrLJ 2009 KARACHI HIGH COURT SINDH 1425 #

2009 P Cr. L J 1425

[Karachi]

Before Ali Sain Dino Metlo, J

WAZIR ALI----Applicant

Versus

THE STATE----Respondent

Criminal Miscellaneous Applications Nos.D-36 and D-93 of 2009, decided on 2nd June, 2009.

Criminal Procedure Code (V of 1898)---

---S. 561-A---Control of Narcotic Substances Act (XXV of 1997), Ss.6/9---Quashing of proceedings---Application for---State Counsel had conceded that except for inadmissible confessional statement of co-accused made, to Police. after his arrest that applicants were also concerned in business of Charas recovered from him, no other evidence was against applicants---In absence of any evidence against the applicants, there was no probability of applicants being convicted of any offence; and no useful purpose would be served to conduct their trial---No useful purpose would be served to ask applicants to seek remedy first from the Trial Court as it had refused, even to grant bail to accused and had issued warrants against them---Proceedings against applicants/ accused persons, in circumstances, were quashed; they stood discharged.

Ali Nawaz Ghanghro for Applicant (in Criminal Miscellaneous Application No.D-93 of 2009).

Habibullah G. Ghori for Applicant, (in. Criminal Miscellaneous Application No. D-36 of 2009).

Naimatullah Bhurgri, State Counsel.

PCrLJ 2009 KARACHI HIGH COURT SINDH 1448 #

2009 P Cr. L J 1448

[Karachi]

Before Khadim Hussain M. Shaikh, J

SIKANDAR ALI KHOKHAR----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-3 of 2009, decided on 13th May, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Two co-accused had already been admitted to bail by the Trial Court on the ground of affidavits filed by the complainant and prosecution witnesses; whereby they exonerated them---Complainant, two prosecution witnesses and Mashir by filing affidavits before the Trial Court had also exonerated accused---Legal heirs of deceased had filed their affidavits and had no objection to the grant of bail to accused who remained in custody for more than 27 months; and case of accused was at par with ,that of co-accused who had been granted bail---On rule of consistency accused was also granted bail.

Muhammad Nawaz alias Najja v. The State 1991 SCMR 111 rel.

Mrs. Leela alias Kalpana Devi for Applicant.

Naimatullah Bhurgri for the State.

PCrLJ 2009 KARACHI HIGH COURT SINDH 1467 #

2009 P Cr. L J 1467

[Karachi]

Before Maqbool Ahmed Awan, J

ALI AHMED----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.568 of 2009, decided on 16th July, 2009.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.302/147/148/149/114/504/34---Pre-arrest bail, grant of---Accused along with his co-accused had allegedly caused "Lathi" blows to the deceased on non-vital parts of his body i.e., arm, shoulder and backside---During investigation accused was found innocent and his name was shown in Column No.2 of the challan---Motive was specifically attributed to main accused, who had caused hatchet injury on the head of the deceased---Common intention of accused with co-accused was yet to be determined by Trial Court after recording evidence---Case against accused needed further inquiry into his guilt---Interim pre-arrest bail granted to accused was confirmed in circumstances.

Arbab Ali v. Khamiso and others 1985 SCMR 195 and Murad v. The State PLD 1983 SC 82 ref.

Mst Qudrat Bibi v. Muhammad Iqbal and another, 2003 SCMR 68 distinguished.

S.M. Iqbal for Applicant.

Jehangir Rahujo for the Complainant.

Ali Haider Saleem,-A.P.-G. for the State.

Lahore High Court Lahore

PCrLJ 2009 LAHORE HIGH COURT LAHORE 6 #

2009 P Cr. L J 6

[Lahore]

Before Syed Shabbar Raza Rizvi, J

SARMAD IJAZ ANWARI----Petitioner

Versus

THE STATE and another----Respondents

Writ Petition No.2612 of 2008, decided on 15th September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Constitution of Pakistan (1973), Art.199---Penal Code (XLV of 1860), Ss.406/420---Constitutional petition---Custody of car sought on "Superdari"--Car according to record had been sold to three persons including the petitioner who was a bona fide purchaser, as supported by the State Counsel---Important points for consideration were whether the car was sold by the actual owner or by an accused of criminal misappropriation or a fraud and could the said accused sell the car in such circumstances---Investigating Officer had failed to appreciate that the offence of the said accused was also covered by S.410, P.P.C.---Everybody in the country was well conversant with the concept of "ﻤﺸﺘﺮﻯﻫﻮﺸﻴﺎﺭﺑﺎﺶ"---Petitioner, therefore, despite being prima facie a bona fide purchaser of the car, could not be treated as a lawful owner, although he certainly had a right to recover his loss from the aforesaid accused in accordance with law---Constitutional petition was consequently dismissed with the above observation.

Muhammad Baleegh-uz-Zaman Chaudhry for petitioner.

Ch. Muhammad Mushtaq Saleem for Respondent.

Muhammad Nawaz Bajwa, A.A.-G.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 26 #

2009 P Cr. L J 26

[Lahore]

Before Muhammad Ahsan Bhoon, J

SHAUKAT ALI----Appellant

Versus

THE STATE----Respondent

Criminal Appeals Nos.1776 of 2005, 148-J of 2007 and Criminal Revision No.907 of 2005, heard on 12th September, 2008.

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

----Ss. 460 & 396---Qanun-e-Shahadat (10 of 1984), Art.39---Criminal Procedure Code (V of 1898), S.103-Appreciation of evidence--Primarily none of the accused was nominated in the F.I.R. and only their descriptions were given therein, but later on complainant had nominated the accused in his supplementary statement on the basis of his suspicion, who, after arrest, confessed their guilt---Said confession made by the accused in custody of police was inadmissible in view of Art.39 of the Qanun-e-Shahadat, 1984---Other eye-witness, wife of the complainant, while appearing before the Court had not said anything about identification of accused who were present in the Court---No identification parade was held in the case---"Danda" used in the occurrence was not recovered from the accused---Eye-witnesses, who were related to the complainant, were also the witnesses of extra judicial confession allegedly made by accused before them, but they had neither told the complainant about the same in time nor did they take any action against the accused and their statements on this account too did not inspire confidence---Even otherwise, extra-judicial confession was a very weak type of evidence which could not be relied upon unless corroborated by other confidence inspiring evidence, which was lacking in the case---Incriminating recoveries made during investigation were in violation of S.103, Cr.P.C. and attested by the interested witnesses---Case against accused was of no evidence and they were acquitted accordingly.

2007 SCIVIR 1944 ref.

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

---Ss. 460 & 396---Confession---Appreciation of evidence---Extrajudicial confession---Nature and scope---Extra-judicial confession is a very weak type of evidence and the same cannot be relied upon for the purpose of conviction and sentence in a case of capital punishment unless corroborated by otheradmissible and confidence inspiring evidence.

---Ss. 460 & 396---Criminal Procedure Code (V of 1898), S.410---Administration of justice---Islamic concept---Co-accused not filing appeal to challenge his conviction' and sentence---Duty of Appellate Court elaborated---Co-accused had not filed any appeal against his conviction and sentence passed by the Trial Court, but Appellate Court was duty bound to impart justice---Although statutory right of appeal to any convict on a trial held by the Sessions Court has been provided under S.410, Cr.P.C. whereby a convict as a right can demand an adjudication from High Court either on a question of fact or on a question of law or on both, yet that is a procedural issue but Islam gives less importance to the procedural issues and lays emphasis in maintaining justice and equality and whenever it comes in the notice of the Court that any procedural or technical reason would cause serious injustice and if any, illegality is found on record during the hearing of any connected matter, High Court can appreciate the case of that one on merits who is being deprived from the relief to which he was entitled, because High Court can exercise visitorial powers in respect of Courts below, where appeal or leave to appeal was not filed---Even otherwise, according to the basic principle of jurisprudence latent power always lies with the head of the institution and wherever he finds any wrong he can rectify the same and High Court being a Court of appeal and having full control and superintendence over the courts below, could exercise the same to avoid the miscarriage of justice---Two co-accused had been acquitted in the case and the case of co-convict who had not preferred any appeal was at par with his said co-accused, so he could not be deprived of the benefit which was being extended to them and he was also acquitted from the charge, and directed to be released forthwith.

Ansar Ali Warriach for Appellant.

Ch. Muhammad Zafar Khan, D.P.-G. for the State.

Mehmood-ul-Hassan Bhatti for the Complainant.

Date of hearing: 12th September, 2008.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 43 #

2009 P Cr. L J 43

[Lahore]

Before Tariq Shamim and Muhammad Ahsan Bhoon, JJ

QAISAR ALI alias QASAR----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.2113 of 2002 and Murder Reference No.78 of 2003, heard on 11th September, 2008.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Story put forth by the complainant in the FIR. and the version set forth by the prosecution was contra to medical evidence qua the seats of injuries as well as the number of injuries on the body of the deceased---Eye-witnesses were chance witnesses of the occurrence who had not seen the incident and their statements did not inspire confidence---Non-availability of the crime-empties from the spot and mere recovery of pistol with no report of Forensic Science Laboratory, had not furnished any corroboration to the ocular testimony-Prosecution case, thus, was not free from doubt, particularly when falsification of the oral evidence through medical evidence had uprooted the version as attempted to be established by the prosecution---Accused was acquitted accordingly.

1981 SCMR 132 ref.

Mian Abdul Qayyum Anjum for Appellant.

Qazi Zafar Iqbal, Addl. P.-G. for the State.

Sardar Akbar Ali Dogar for the Complainant.

Date of hearing: 11th September, 2008.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 53 #

2009 P Cr. L J 53

[Lahore]

Before Muhammad Ahsan Bhoon, J

SIKANDAR HAYAT----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.5236/B of 2008, decided on 23rd September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Accused was behind the bars for the last more than three years and not a single witness had been examined so far in the case---Two years and seven months back earlier bail application of accused was dismissed by High Court, but still there was no progress in the trial---Allegation against accused was only of aerial firing and he could not be kept behind the bars for indefinite period---Principal accused, the real brother of accused, was absconding---Each and every individual was responsible for his own act---Accused was admitted to bail in circumstances.

Mian Shahbaz Ali Anjum for Petitioner.

Ch. Muhammad Zafar, D.P.-G. for the State, assisted by Ch. Iqbal Ahmad Dhudhi for the Complainant.

Liaqat Ali, S.-I. with record.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 57 #

2009 P Cr. L J 57

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Kazim Ali Malik, JJ

ABDUL GHAFFAR----Appellant

Versus

THE STATE----Respondent

Criminal Appeals Nos.269-J, 1667, 1344, 1345, Capital Sentence Reference No.40-T and Writ Petition No.10539 of 2006, heard on 11th September, 2008.

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

----Ss. 302 & 404---Simultaneous conviction illegal---Accused cannot be convicted for the offence of murder under Ss.302, P.P.C. and 404, P.P.C. simultaneously.

Khadim Hussain v. The State 2004 PCr. LJ 1102 ref.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Appreciation of evidence---Benefit of doubt---Delay in lodging the F.I.R. had established that the deceased did not disappear as alleged in the F.I.R.---Complainant in his cross-examination had repudiated his own supplementary statement and the second version, which had adversely affected the prosecution story---Case was one of fabricated evidence on the charge of abduction for ransom in which the abductors themselves had disclosed their identity to the prosecution witnesses---Accused were not put to the test of identification parade. despite the fact that they were not admittedly known to prosecution witnesses previously---Identification of accused by prosecution witnesses after about one year at the commencement of trial when the prosecution witnesses were equipped with legal advice, could not be and should not be treated as a legal piece of evidence---Complainant and the investigating agency had conspicuously withheld a valuable piece of evidence of the call history of telephone numbers of the culprits, which if had been brought on record would have damaged the prosecution case---Recovered articles were not proved on record to belong to the deceased---Accused was neither related to nor resided in the house of co-accused from where the dead body of the deceased was recovered---Benefit of doubt, however, slight, was right of accused, which was given to him and he was acquitted in circumstances.

---S. 7(a)---Penal Code (XLV of 1860), S.302(b)---Joint conviction and sentence not permissible---Section 7(a) of the Anti-Terrorism Act, 1997 and S.302(b), P.P.C. are independent penal provisions of law---Recording of joint conviction and sentence under two separate and independent penal provisions of law is not permissible.

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

---S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Accused had completely failed during investigation as well as at the trial to explain as to how and under what circumstances the deceased, who had been strangulated to death, was buried in his residential house---Pointing out of dead body of the deceased by the accused and then disinterment of the same in consequence thereof from his residential house, had proved beyond any shadow of doubt that he and none else had killed the deceased and buried the dead body in his house---Conviction of accused under S.302(b), P.P.C. was consequently upheld---Said killing, however, did not attract the provisions of S.7(a) of the Anti-Terrorism Act, 1997, because it did not result in striking terror or creating fear, panic, sensation, helplessness and sense of insecurity among the people in the vicinity---Conviction of accused under S.7(a) of the Anti-Terrorism Act, 1997, was therefore, set aside---However, Trial Court as well as High Court had disbelieved and discarded the prosecution version with regard to abduction for ransom----Three co-accused in the case had been acquitted---No cogent and convincing evidence was available on the file to show as to how the deceased had disappeared and as to how and when he reached the house of accused and was killed there-Real facts which culminated in disappearance and killing of the deceased were still shrouded in mystery---Death sentence of accused under S.302(b), P.P.C. was commuted into imprisonment for life under the said mitigating circumstances.

Muhammad Amjad Pervaiz for Appellants.

Zafar Ahmad Gondal, Special Prosecutor for the State.

Kh. Faheem Ijaz for the Complainant.

Dates of hearing: 9th, 10th and 11th September, 2008.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 73 #

2009 P Cr. L J 73

[Lahore]

Before Muhammad Ahsan Bhoon, J

MUHAMMAD LUQMAN and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.6637/B of 2008, decided on 23rd September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324/337-F(v)/148/149---Bail, grant of---Ocular version given in the F.I.R. was contra to medical evidence and Trial Court was yet to determine after recording evidence as to whose fire shot was effective out of the two accused---Injury attributed to accused was on non-vital part of the body of the injured witness---Case of accused was at par with that of his co-accused who had been allowed bail by High Court---Charge had been framed in the case, but not a single witness was examined so far---Accused were behind the bars for about nine months---Bail was granted to accused in circumstances.

2002 SCMR 1381 ref.

PLD 2004 SC 477 rel.

Syed Zahid Hussain Bokhari for Petitioners.

Ch. Muhammad Zafar, D.P.-G. for the State, assisted by Ch. Talib Hussain Chattha for the Complainant.

Mukhtar, S.-I. with record.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 82 #

2009 P Cr. L J 82

[Lahore]

Before Kazim Ali Malik, J

MADIHA JABEEN----Petitioner

Versus

THE STATE----Respondent

Writ Petition No.1141 of 2008, heard on 8th August, 2008.

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

----S. 497---Penal Code (XLV of 1860), Ss.395/412---Bail, grant of---Benefit of doubt---Accused, an unmarried girl, was not present at the spot at the relevant time, nor she had joined her co-accused when they had allegedly looted the complainant---Only allegation against the accused was that she had established contact with the complainant Doctor on cell phone seeking appointment for her medical check up---Record was silent about the special circumstances which prompted the complainant doctor to ask the patient young girl to see him on the way instead of his clinic---Motive behind involvement of the lady accused appeared to be shrouded in mystery---Complainant had laid a reshaped version before the, police qua the role of the unmarried young girl without any previous criminal record---Complainant appeared to have attempted to minimize his own role in respect of his telephonic contact with the girl asking her to see him at a place other than his clinic for her medical check up---Such state of affairs had adversely affected the complainant's version and the recovery of cell phone at the instance of accused appeared to be doubtful---Benefit of doubt, however, slight, was the right of accused even at bail stage---Accused was admitted to bail in circumstances.

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

----S. 497---Penal Code (XLV of 1860), Ss.395/412---Bail---Benefit of' doubt-Benefit of doubt, however, slight, is right of accused even at bail stage.

Ch. Muhammad Akhtar for Appellant.

Ch. Mubarik Hussain, D.P.-G. with Dost Ali, S.-I. for the State.

Date of hearing: 8th August, 2008.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 99 #

2009 P Cr. L J 99

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD TANVEER----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous Nos.7178/B and 7867/B of 2008, decided on 26th September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.395--Bail, grant of---Further inquiry---Initially a case was registered against 18/19 unknown dacoits, however during the investigation, 18 persons were nominated as perpetrators of the offence in question on the basis of supplementary statement recorded subsequently---Said supplementary statement which was recorded after a delay of more than two months of lodging the F.I.R.., revealed that no concrete basis for linking accused persons with the alleged crime, was given by the complainant; rather it was claimed therein that through some (undisclosed) source, the complainant had discovered that the offence in question was committed by all accused nominated in the supplementary statement---F.I.R. having been lodged against unknown persons, the Investigation Officer was duty bound to arrange for an identification parade, but the Investigating Officer failed to do so---None of the looted items/material could be recovered from the possession of accused during the investigation---Recovery of cell phones, tentatively speaking, did not connect accused persons with the alleged crime, inasmuch as the model number of the cell phone recovered from one of accused did not tally with that of looted cell phone as mentioned in the F.I.R.---Cell phone recovered from the accused being common article, prima facie could not connect accused with the alleged crime--Case of accused persons in said peculiar circumstances required further inquiry into their guilt within the purview of S.497(2), Cr.P.C.--- According to unrebutted claim of the counsel for accused even the charge had not been framed against accused persons, who had been suffering the toils of incarceration since long---Early conclusion of the trial was a valuable right of every accused, but the same had been denied to accused persons---Concession of post-arrest bail was granted to accused persons, in circumstances.

Sittar Sahil and Ch. Shahid Pervaiz Kahlon for Petitioner.

Shahid Mahmood Khan, Dy. P.-G. with Shoaib Warriach, A.S.-I. for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 104 #

2009 P Cr. L J 104

[Lahore]

Before Muhammad Ahsan Bhoon, J

REHMAT ULLAH BUTT----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.6853/B of 2008, decided on 26th September, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 174-A---Penal Code (XLV of 1860), Ss.302/324/34---Bail, grant of---Dying declaration---Opinion of police during investigation---Accused was declared innocent during investigation and his name was placed in Column No.2 of the challan, as his plea of alibi was accepted on the basis of admissible evidence; number of witnesses appearing before the Investigating Officer who were present along with the accused in the mosque to offer prayer at the time of alleged occurrence---None of the requirements of law envisaged under S.174-A, Cr.P.C. having been fulfilled in the present case for recording statement of the deceased as a dying declaration, bail was granted to accused.

Burhan Moazzam Malik for Petitioner.

Asif Mahmood Cheema, D.P.-G. for the State along with Investigating Officer with record.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 110 #

2009 P Cr. L J 110

[Lahore]

Before Khurshid Anwar Bhinder, J

MASHKOOR----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.8146/B of 2008, decided on 9the October, 2008.

Criminal Procedure Code (V of 1898)---

---S. 497(2)---Penal Code (XLV of 1860), Ss.302/148/149---Bail, grant of--Further inquiry---Accused though was nominated in the F.I.R. with specific role, but nature of such role had yet to be determined---Record had established that no active role had been attributed to accused in narration of F.I.R.---General allegations were levelled against accused as he was not even shown to be armed with any weapon---No recovery of any crime weapon had been effected from the accused---In absence of any specific allegation, nothing definite could be ascertained regarding role of accused in murder of deceased as F.I.R. was silent about the same---Merely, involving accused with the commission of offence on the basis of narration of F.I.R. would not justify his role until and unless definite allegations were made against him---Even otherwise, it was not shown as per police record that deceased was murdered due to any injury caused by accused--Merely heinousness of the crime would not necessarily mean that accused was involved in the case, when no specific role was attributed to him---Case against accused being that of further inquiry into his guilt, accused was admitted to bail.

Munawar Iqbal Gondal for Petitioner.

Sahfqat Ullah Butt, D.P.-G with Nazir, A.S.-I. for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 116 #

2009 P Cr. L J 116

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD AWAIS KHALID----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.3987/B of 2008, decided on 25th September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Bail, grant of---Benefit of doubt---Accused during investigation, denied issuance of cheque and his signatures thereon---Investigating Officer sent specimen of signatures of accused to the Forensic Science Laboratory and according to its report his signatures did not tally with the signatures on cheque---In view of the doubt created by the said report, accused was to be benefited as benefit of doubt went in his favour, even at bail stage---Offence against accused, otherwise was not covered by the prohibitory clause of S.497, Cr.P.C. and said legal position was not changed by the mere fact that issuance of cheque related to a heavy amount of Rs.10 lacs---Accused had already spent several months in jail without his being pronounced as guilty by the court---Accused could not be denied bail as a punishment---Section 497, Cr.P.C., itself divided offences into categories i.e. falling in the prohibitory clause and non prohibitory clause---In offences which fell within non-prohibitory clause, bail was normally granted, unless some compelling and exceptional grounds were shown, which were not forthcoming in the present case---Accused was admitted to bail, in circumstances.

Miss Erum Sajjad Gul for Petitioner.

Ghulam Qadir Bari, Asstt. P.-G., Punjab for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 122 #

2009 P Cr. L J 122

[Lahore]

Before M. Bilal Khan, J

Mst. MANZOORAN BIBI----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.5655/CB of 2008, decided on 7th October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.302---Bail, cancellation of---Principles---Accused though was nominated in the F.I.R., but he had been found to be innocent during the course of investigation and the death of deceased was declared to be a suicidal act---Being aggrieved of the investigation, the complainant had preferred a private complaint, which was at cursory stage---Impugned order had revealed that the Trial Court had given elaborate reasons for allowing bail to accused---For a bail granting order, to be eligible to be interfered with under S.497(5), Cr.P.C. same had to be arbitrary, absurd or fanciful---Discretion left to the court under S.497(5), Cr.P.C. was pari materia with the principle which applied to the setting aside of the orders of acquittal---Counsel for petitioner/complainant had not been able to point out any such illegality or absurdity in the impugned order so as to warrant interference by the High Court.

Mian Dad v. The State and another 1992 SCMR 1286 and Muhammad Tayyab v. The State 1997 PCr.LJ 597 rel.

Syed Qari Mian Zaidi for Petitioner.

Muhammad Iqbal Chaudhry, Dy. P.-G. Punjab for the State with Muhammad Ashraf, A.S.-I.

Faisal Qayyum Khan for Respondent No.2.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 127 #

2009 P Cr. L J 127

[Lahore]

Before Muhammad Ahsan Bhoon, J

MUHAMMAD TUFAIL----Appellant

Versus

FAQIR MUHAMMAD and 3 others----Respondents

Criminal Appeal No.175 of 2005, heard on 11th September, 2008.

(a) Penal code (XLV of 1850)---

----Ss. 337-F(i)/337-A(iii)/379/148/149---Criminal Procedure Code (V of 1898), S.417(2-A)---Appeal against acquittal---None of five accused -nominated in the F.I.R. had been attributed any specific role of causing injuries to the prosecution witnesses, rather they were collectively made liable for the same---Out of the said five accused acquittal of two accused was not challenged although their role was similar to that of the other three accused---One injured prosecution witness was not produced during the trial and even the other injured witness had not assigned any specific injury to any of the accused---Injuries suffered by the said witness were not grievous in nature---Two accused had also sustained injuries as proved by medical evidence---Prosecution witnesses had made improvements in their statements which were also contradictory to each other---Conclusion arrived at by the Trial Court was possible on fair assessment and appraisal of evidence--Even otherwise, complainant was not an aggrieved person within the meaning of S.417(2-A), Cr.P.C. as he was neither injured in the occurrence nor he was an eye-witness of the same and he was also not related to the eye-witness---Appeal against acquittal of accused, thus, was neither competent, nor had any merits and the same was dismissed accordingly.

1999 Appeal Cases 465 rel.

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

----S. 417(2-A)---Appeal against acquittal---Competency---Appeal against acquittal in a hurt case defined by the Penal Code and tried by the Courts constituted under the Code of Criminal Procedure shall be competent by a person who has been hurt or by any of the legal heirs within the scheme of law, otherwise the appeal against acquittal would be incompetent.

1999 Appeal Cases 465 ref.

Mirza Muhammad Aziz-ur-Rehman for Appellant.

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

Muhammad Tufail for Respondents Nos.1 to 3.

Date of hearing: 11th September, 2008.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 132 #

2009 P Cr. L J 132

[Lahore]

Before Saghir Ahmad, J

JAWAD HASSAN and 3 others----Petitioners

Versus

S.H.O. POLICE STATION KOT ADDU, DISTRICT MUZAFFARGARH and another----Respondents

Criminal Miscellaneous No.1473/B of 2008, decided on 12th August, 2008.

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

----S. 498---Penal Code (XLV of 1860), Ss.337-A(ii)/148/149---Pre-arrest bail, refusal of---Presence of accused at the spot was established during the investigation---Allegation of inflicting pistol shot on the head of the complainant levelled against accused was supported by the medical report according to which lacerated wound 4.8 c.m. into 1.00 c.m. was found on the exposed skull bone---Recovery was to be effected from accused---No case for grant of pre-arrest bail to the extent of accused having been made out, his bail application was dismissed.

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

----S. 498---Penal Code (XLV of 1860), Ss.337-A(ii)/148 & 149---Pre-arrest bail, confirmation of---Co-accused though were nominated in the F.I.R., but injuries attributed to them were simple in nature and according to the medical report were only 1.5 c.m. into 0.6 c.m. and laceration---Injuries attributed to co-accused were on non-vital parts of the body of injured---Sending accused behind the bar could not serve any useful purpose to the prosecution specially when it had come on record that despite constitution of Medical Board on the order of the Magistrate, injured did not appear for examination---Pre-arrest bail already granted to co-accused, was confirmed, in circumstances.

Ghias-ul-Haq for Petitioner.

Muhammad Rasheed Siddiqui for the Complainant.

Ch. Zulfiqar Ali Sindhu, A.P.-G. with Abdul Qayyum, S.-I. along with record.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 138 #

2009 P Cr. L J 138

[Lahore]

Before Saif-ur-Rehman, J

Mst. REHANA JALAL----Petitioner

Versus

S.H.O. POLICE STATION KOT ADDU, and 3 others----Respondents

Writ Petition No.809 of 2008, decided on 10th March, 2008.

Criminal Procedure Code (V of 1898)---

----S. 22-A---Constitution of Pakistan (1973), Art.199---Constitutional petition-Non-registration of case---Application against---Petitioner reported information of offence cognizable by the police, but S.H.O. having not registered F.I.R., petitioner filed application under S.22-A, Cr. P. C. which was also dismissed by the Justice of Peace---Justice of Peace obtained report from the Police, who on the basis of said report, found that dispute between the parties was of civil nature which did not require his interference--Petitioner in her application under S.22-A, Cr. P. C. had narrated full story of occurrence giving each and every detail---Report submitted by the police on which Justice of Peace relied and passed impugned order did not contain even any reference to story alleged by the petitioner in the application---Report of the police and order passed by the Justice of Peace, being without any force, copy of the same would be forwarded to D.P.O. concerned for ensuring that the statement of the petitioner be recorded by the S.H..O. who would proceed in accordance with law---Order accordingly.

Nemo for Petitioner.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 142 #

2009 P Cr. L J 142

[Lahore]

Before Saif-ur-Rehman, J

RIAZ AHMAD----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.92 of 2008, decided on 26th February, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.420, 467, 468 & 471---Prevention of Corruption Act (II of 1947), S.5(2)---Bail, refusal of---Accused was found guilty during investigation/inquiry Nothing was on record to show that complainant had any animus against accused---Cogent material existed on record providing reasons to believe that accused tried to play hell with the complainant through forgery---Public servants were supposed to be custodian of rights of the people---Act done by accused brought the case under exception to the rule whereby bail was allowed in cases of offences involving punishment falling under prohibitory clause of S.497, Cr.P.C.---Bail application, in circumstances, was held to be without any force and was dismissed.

Altaf Hussain Bhutta for Petitioner.

Ashfaq Malik, D.P.-G. assisted by Kalim Ullah, Inspector with record for the State.

Malik Javaid Akhtar Wains for the Complainant.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 151 #

2009 P Cr. L J 151

[Lahore]

Before Khurshid Anwar Bhinder, J

WAQAS SHAH----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.7188/B of 2008, decided on 11th September, 2008.

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---Accused though was caught red-handed by the Police while being in possession of huge quantity of liquor, but court had to examine the case from all angles---F.I.R. showed that accused was carrying 50 liters of liquor in a can of gallon; it was practically impossible to have 50 liters of liquor in a can of gallon which had the capacity of only 4.5 liters---No other can was available which could contain 50 liters of liquor---F.I.R. seemed improbable, implausible, false, fabricated and unbelievable---Article 3 of Prohibition (Enforcement of Hadd) Order, 1979 was not attracted in the present case for the reasons that said Article deals with manufacturing and selling of liquor and in the present case none of the ingredients of Art.3 of the Ordinance were attracted as no evidence regarding manufacturing or selling of said liquor was available on record---Police did not recover any money from accused which could prove the fact that he had sold some liquor---Article 4 of Prohibition (Enforcement of Hadd) Order, 1979, was bailable offence; accused was allegedly apprehended during day time and police could have easily associated any independent witness from the locality in the search process, which was not done in the case, in clear violation of S.103, Cr.P.C.---False implication of accused could not be ruled out, in circumstances---Case of accused being that of further inquiry, accused was admitted to bail, in circumstances.

Arshad Ali Chohan for Petitioner.

Shafqatullah Butt, Dy.P.-G., Punjab for the State and Ghazi Khan, A.S.-I. with record.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 153 #

2009 P Cr. L J 153

[Lahore]

Before Muhammad Ashraf Bhatti, J

BASHARAT ALI----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.7280/B of 2008, decided on 2nd September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.376/511/337-A(ii) & 337-L(ii)/34---Bail, grant of---Further inquiry---Except statement of complainant, no other incriminating material was on record to prove an over act on part of accused to commit rape with alleged victim/sister of the complainant---Accused would have caused multiple injuries of the nature upon person of alleged victim was highly doubtful, nor it was plausible to comprehend that an attempt to commit offence of Zina would have been made in the presence of co-accused raising `Lalkaras' in a way inviting attention of other members of the family to intervene---Accused himself suffered injuries during the occurrence, Investigating Officer was unable to explain as to why he did not take notice of medico-legal report of accused and got probed the matter---Occurrence must not, have been taken place in the manner as suggested in the F.I.R., in circumstances---Accused was behind the bars since 25-4-2008 and was no more required for investigation purpose---Further detention of accused for indefinite period would not serve any useful purpose, in circumstances---No sound incriminating material was available on record to prima facie establish that accused had made an attempt to commit Zina---When the attraction of offence of Zina was also debatable, case of accused, by all means, fell within the ambit of further inquiry---Accused was admitted to bail, in circumstances.

Naveed Inayat Malik for Petitioner.

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

Mian Maqbool Alam for the Complainant.

Altaf Hussain, A.S.-I. Police Station.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 155 #

2009 P Cr. L J 155

[Lahore]

Before Zafar Iqbal Chaudhry, J

AMIR IQBAL CHAUDHARY----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.6887/B of 2008, decided on 3rd September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Bail, grant of---Contradiction was found between the claim of the agreement arrived at between the parties and the allegation in the F.I.R.---Civil suit regarding the dispute between the parties was also pending in the civil court---Accused was in the judicial lock up for the last about 4 months and the challan had also been submitted in the court--Accused was not required for the purpose of any further investigation and none of the offences against accused fell within the prohibitory clause of S.497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Mian Muhammad Hanif for Petitioner.

Syed Mansoor Ali Bukhari for the Complainant.

Mian Ismat Ullah, D.P.-G. for the State along with Abdul Hafeez A.S.-I. with record.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 157 #

2009 P Cr. L J 157

[Lahore]

Before Khurshid Anwar Bhinder, J

MUHAMMAD ASHRAF----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.6451/B of 2008, decided on 12th September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.380 & 457/34---Bail, grant of---Further inquiry---Accused though was nominated in the F.I.R., but the court had to make tentative assessment on the basis of available record---Two alleged eye-witnesses mentioned in the F.I.R., did not make hue and cry during the course of commission of offence at mid night, when they could have very easily either tried to apprehend accused persons or could have at least raised hue and cry, but they had not done so---Both said eye-witnesses were not seemed to be present at the time of occurrence---Story narrated in the F.I.R., in circumstances, seemed fabricated and concocted---Value of stolen articles, which were general merchandize products and household articles as mentioned in F.I.R. was Rs.1,50,000, but recovery effected from accused of the stolen articles, was worth Rs.18,000---Rest of the stolen articles could have also very easily recovered from the house of accused which also made the case of prosecution doubtful---F.I.R. showed that accused and his accomplice, were traced on the basis of footmarks, but no expert of footmarks was ever produced as a witness---When two eye witnesses of the occurrence had identified accused persons while committing the offence, then practically there was no need to engage the services of tracker---Entire story narrated in the F.I.R. was established to be concocted and unbelievable---Case of, accused being that of further inquiry into his guilt, he was admitted to bail, in circumstances.

Muhammad Farooq for Petitioner.

Shafqat Ullah Butt, D.P.-G. with Hadayat, S.-I. for the State.

Ch. Abdul Hameed for the Complainant.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 160 #

2009 P Cr. L J 160

[Lahore]

Before Saif-ur-Rehman, J

GHULAM AKBAR----Petitioner

Versus

NAZIM CITY DISTRICT, MULTAN and 4 others----Respondents

Writ Petition No.2680/Q of 2008, heard on 24th June, 2008.

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

----Ss. 188 & 379---Criminal Procedure Code (V of 1898), Ss.144 & 195---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Complainant/ respondent who claimed ownership of land, had alleged that petitioner, who was his tenant had removed wheat crop from the land in violation of S.144, Cr.P.C.---Petitioner had sought quashing of F.I.R. against him in constitutional petition---Act of violation of order passed under S.144, Cr.P.C., made it culpable under S.188, P.P.C.---No court could take cognizance of offence under S.188, P.P.C. except on complaint in writing of the public servant concerned or some other servant to whom he was subordinate---Section 195(1)(a), Cr.P.C., laid an express bar on a private person to approach the police for registration of the case under S.188, P.P.C.

2006 YLR 2815; 1997 PCr.LJ 589; 1993 PCr.LJ 2306; 1988 PCr.LJ 988; PLD 1967 Pesh. 307; 2000 MLD 762; PLD 1968 Dacca 678; 1998 PCr.LJ 732; PLD 1958 Dacca 564; 2005 PCr.LJ 2022 and PLD 2007 SC 48 ref.

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

----Ss. 378 & 379---Punjab Tenancy Act (XVI of 1887), Preamble---Constitution of Pakistan (1973), Art.199---Constitutional petition---Offence of theft---Offence under S.378, P.P.C. would be made out, if some movable property was taken away dishonestly out of the possession of person without that person's consent---Tenant was in possession of the land and usufruct arising out of that land with the consent and, permission of landlord/owner of such property and would jointly hold possession of such property with the consent of its owner---If any movable property was taken away from such land against the consent of its owner, offence under S.378, P.P.C. would not be made out---Registration of case against petitioner/tenant was contrary to law and void ab initio---Counsel for complainant while referring to illustration (d) of S.378, P.P.C., had contended that the status of a tenant being like a servant, removal of crop by the tenant against the consent of the landlord would amount to theft in the light of said illustration---Validity---Contention was repelled because status of a tenant could not be equated with that of a private servant as rights and liabilities of a tenant and landlord were regulated by the Tenancy Act---Whatever was cultivated and grown by the tenant on the land claimed by the landlord, was shared by the tenant and his right of ownership would extend to the crop grown jointly with the owner and he was entitled to its actual physical possession in the first instance---Petitioner though could avail his remedy by moving an application under S.249-A, Cr.P.C., however, in the light of circumstances of the case, his right to approach High Court under Art.199 of the Constitution, could not be taken away---Constitutional petition was allowed.

Khuda Bakhsh Khan for Petitioner.

Malik Ghulam Qasim Rajwana for Respondents.

Muhammad Waseem Shahab and Munir Ahmad, A.S.-I.

Date of hearing: 24th June, 2008.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 163 #

2009 P Cr. L J 163

[Lahore]

Before Khurshid Anwar Bhinder, J

Sh. MUHAMMAD GULZAR ----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.7097/B of 2008, decided on 10th September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.302/34---Pre-arrest bail, grant of---Accused was nominated in the F.I.R. with specific role, but from the findings of Investigating Officer with regard to plea of alibi taken by accused, it was established beyond any shadow of doubt that accused was very much present at his native city where he had his own business and at the time of occurrence he was not present at the place of occurrence, but was conducting his regular business at said place of his business---Accused was also declared innocent in police findings---Medical report as well as post-mortem report, established that deceased died because of cardiac arrest and not from the injuries attributed to son of accused---Even otherwise accused did not seem to be strong enough to hold deceased in his JAPHA---Story narrated in the F.I.R. seemed unbelievable, fabricated and concocted---Medico-legal report showed that simple bruises were found on the body of the deceased, which could not have possibly caused death of deceased---Mala fide on the part of the complainant against accused was also proved as continuous dispute existed between the parties regarding the construction of gate at the house of complainant; and due to that dispute as well as the altercation, complainant got the present case registered against accused---Case of accused, in circumstances, was that of further inquiry into his guilt---Ad-interim pre-arrest bail already granted to accused, was confirmed, in circumstances.

Rai Haider Ali Khan Kharal for Petitioner.

Muhammad Iqbal for the Complainant.

Shafqat Ullah Butt, D.P.-G. with Shahbaz, S.-I. for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 166 #

2009 P Cr. L J 166

[Lahore]

Before Mazhar Hussain Minhas and Malik Saeed Ejaz, JJ

RIAZ-UL-HAQ----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.228 of 2000 and Murder Reference No.579 of 2001, heard on 13th May, 2008.

Penal Code (XLV of 1860)---

----Ss. 302(b), 364 & 201---Appreciation of evidence---Sentence, reduction in----Mitigating circumstances---Contradictions appearing in time, place and date of departure of deceased with accused and same was contradictory and not corroboratory to the statements of the complainant and other prosecution witness---Alleged recovery of amount from the possession of accused was not proved---Said recovery was statedly effected after about one and half months of alleged first departure of deceased---Was unbelievable that a person would keep the said amount intact for such a long time---Alleged extra judicial confession which was made before the police, was not trustworthy and reliable and same could also not be said to be voluntary---Dead body of deceased was admittedly found buried in the courtyard of the house which was taken by accused on rent---Prosecution as well as defence, both had failed to establish their respective versions and both were not trustworthy to some extent---Recovery of dead body of deceased from the house, fully connected accused with the murder of deceased especially when no enmity between the witnesses and accused had been found on record for his false involvement in the case---Accused did not produce any witness in support of his defence---Incident was an unseen occurrence and the prosecution case was based on circumstantial evidence---Contradictions in the statements of the witnesses and the circumstance narrated by the prosecution, created strong mitigating circumstance in favour of accused---Case, in circumstances was not of a capital punishment---Appeal filed by accused was dismissed, however, his death sentence was reduced to imprisonment for life---Benefit of S.382-B, Cr.P.C. was also extended to accused.

Syed Shahbaz Ali Rizvi for Appellant.

Ashfaq Ahmad Malik, Dy. P.-G. , Punjab for the State.

Date of hearing: 13th May, 2008.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 181 #

2009 P Cr. L J 181

[Lahore]

Before Hasnat Ahmad Khan, J

IMTIAZ----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.6784/B of 2008, decided on 21st October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/109/148/149---Bail, grant of---Further inquiry---Occurrence had taken place in the dark hours of night---During the investigation, mother-in-law of the petitioner got her counter-version recorded claiming that on the night of occurrence, wife of accused was abducted and raped by deceased---Mother-in-law claimed that she along with male members of her family chased accused and that in the process of retrieving her, deceased received fire arm injury and bled to death; however during the investigation, said cross-version was cancelled---Investigating Officer had observed that accused was not present at the time of occurrence---Opinion of the police could be taken into consideration while deciding bail application---Was yet to be determined as to which of the two versions was correct---Case of further inquiry within the purview of S.497(2), Cr.P.C. having been made out in favour of accused, concession of bail was granted to him.

Muhammad Mansha v. The State PLD 1996 SC 229 rel.

Ijaz Anwar and Muhammad Khalid Ali Khan Baloch for Petitioner.

Shahid Mehmood Khan, Dy. P.-G. with Muhammad Musa, A.S.-I. for the State.

Ch. Ghulam Hassain for the Complainant.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 195 #

2009 P Cr. L J 195

[Lahore]

Before Khurshid Anwar Bhinder, J

MUHAMMAD MUNAWAR----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.9148/B of 2008, decided on 21st October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.365-B---Bail, grant of---Further inquiry---Accused no doubt was nominated in the F.I.R. with specific role of abduction, but alleged abductee had stated before the Investigating Officer in her statement recoded under S.161, Cr.P.C. that . nobody had abducted her, rather she had contracted marriage with the brother of accused with her free will and consent---Record showed that alleged abductee was pregnant for about four months out of marriage-taking place between the brother of accused and alleged abductee---No question of her being minor and of her being sui juris had arisen---In view of statement of alleged abductee before Investigating Officer, wherein she fully refuted the allegations levelled in the F.I.R. against accused, provisions under which accused was liable to be tried, were not attracted in the case---Case of accused being that of further inquiry into his guilt, he was admitted to bail, in circumstances.

Ch. Ali Muhammad for Petitioner.

Shafqat Ullah Butt, D.P.-G. with Basharat, A.S.-I. for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 235 #

2009 P Cr. L J 235

[Lahore]

Before Syed Shabbar Raza Rizvi, J

AMAN ULLAH RANJHA, ADVOCATE----Petitioner

Versus

SPECIAL JUDGE, ANTI-CORRUPTION, SARGODHA and another---Respondents

Criminal Revision No.545 of 2008, decided on 10th October, 2008.

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

----Ss. 202 & 5(2)---Pakistan Criminal Law Amendment Act (XL of 1958), Ss.5 & 6---Penal Code (XLV of 1860), Ss.410, 420, 468, 471 & 161---Prevention of Corruption Act (II of 1947), S.5(2)---Special Judge Anti-Corruption after recording the statement of the complainant in the private complaint entrusted investigation/inquiry to Deputy Director Investigation Anti-Corruption Establishment, which was later on entrusted to D.S.P. (Legal) vide impugned order---Contention was that Special Judge could not entrust inquiry/investigation of the complaint to D.S.P. (Legal), as the provisions of Pakistan Criminal Law Amendment Act, 1958, being a special law had precedence over Criminal Procedure Code, 1898, which was a general law and S.5(6) of the said Act was referred to in support thereof---Section 202, Cr.P.C. started with phrase "any Court" instead of mentioning a Magistrate, Sessions Judge, Special Judge, etc. and the phrase "Any Court" had included "Special Judge"----Section 202, Cr.P.C. was therefore, applicable in the case---Provisions of S.202, Cr.P.C. were not inconsistent with the provisions of Pakistan Criminal Law Amendment Act, 1958---Procedure contained in Code of Criminal Procedure, 1898, was applicable to the proceedings in the cases before Special Judge (Central) in view of Ss.5 & 6 of the Pakistan Criminal Law Amendment Act, 1958---Impugned order had been rightly passed under S.202, Cr.P.C. by the Special Judge, Anti-Corruption, and the same did not suffer from any illegality or legal infirmity-Revision petition was dismissed accordingly.

M.M. K.A. Zai, Advocate v. The State and 3 others 1977 PCr.LJ 176; Muhammad Aslam Khokhar and others v. State 2000 PCr.LJ 619 and Syed Hashim Ali Shah v. Special Judge (Central) 1999 MLD 2237 ref.

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

----S. 202---Postponement of issue of process---Phrase "Any Court" in S.202(1), Cr.P.C. includes "Special Judge".

----Ss. 5 & 6---Applicability of Criminal Procedure Code, 1898---Procedure contained in the Code of Criminal Procedure, 1898, is applicable to the proceedings in the cases before Special Judge (Central), in view of the provisions of law contained in Ss.5 and 6 of the Pakistan Criminal Law Amendment Act, 1958.

Syed Hashim Ali Shah v. Special Judge (Central) 1999 MLD 2237 ref.

Petitioner in person.

Muhammad Nawaz Bajwa, A.A.-G. for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 251 #

2009 P Cr. L J 251

[Lahore]

Before Zubda-tul-Hussain, J

MUHAMMAD IQBAL----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.8287/B of 2008, decided on 15th October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.337-F(ii)---Bail, refusal of---Alleged occurrence carried the liability of sentence which may extend to imprisonment for three years and as such prohibition of S.497, Cr.P.C. was not attracted but it could not he denied that in cases not covered by the said prohibition, the grant of bail was rule and refusal was an exception---Alleged odd attitude which injured not only the sensitive parts of the female body but also caused severe mental and physiological agony to the victim in addition to the physical torture, had also to be given due consideration---Accused if simply allowed bail for the absence of prohibition of S.497, Cr.P.C. while the circumstance showed the gravity of the matter not only for the personal life of an individual victim but also exposed her chastity and modesty besides the insult---Bail was refused in circumstances.

Muhammad Akmal Butt for Petitioner.

Mian Ismat Ullah, Dy.P.-G. with Akram, A.S.-I. for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 257 #

2009 P Cr. L J 257

[Lahore]

Before Syed Hamid Ali Shah and M.A. Zafar, JJ

ATTA ULLAH alias HASNAIN alias HASSAN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.279/M of 2008, heard on 8th October, 2008.

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

----S. 426(2-B)---West Pakistan Arms Ordinance (XX of 1965), Ss.13(a)(2)(c) & 13(b)---Explosives Act (IV of 1884), Ss.4/5---Surrender of Illicit Arms Ordinance (XXI of 1991), S.7---Suspension of sentence---Petition for---Discretion had been left with the court to suspend the sentence of a convict who had been granted leave to appeal by the Supreme Court "if it would think fit according to the facts and circumstances of the case"---Mere fact that petitioner had been granted leave to appeal, would not, ipso facto, give him right to seek the suspension of sentence---Huge quantity of illicit arms in the shape of a Kalashnikov, 3 Magazines, 56 bullets and 2 hand-grenades, were recovered from the petitioner; and two courts had concurrently found him guilty of the said offence and at that stage, it could not be said that such huge quantity was planted by the police to implicate the petitioner falsely---No special circumstances had been urged for suspension of sentence---Since the matter was pending before the Supreme Court, any more comments could prejudice the case of the petitioner before the apex Court---Petition was dismissed.

Gokulchand Dwarkadas Moraka v. Emperor AIR 1948 Bom. 377 ref.

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

----S. 426(2-B)---Anti-Terrorism Act (XXVII of 1997), S.25(8)---Suspension of sentence---High Court pending the appeal of convict, could suspend the sentence under S.426, Cr.P.C., but in cases tried by Anti-Terrorism Court, the said powers, were not available in view of bar contained in S.25(8) of Anti-Terrorism Act, 1997---When a court could not exercise a power of releasing accused on bail during the pendency of appeal before it, said jurisdiction could not be exercised even after the decision of appeal by invoking provisions of S.426(2-B), Cr.P.C.

M. Asghar Rokhari for Petitioner.

Sh. Muhammad Munir D.P.-G. for the State.

Date of hearing: 8th October, 2008.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 275 #

2009 P Cr. L J 275

[Lahore]

Before M. Bilal Khan, J

WAJID ALI----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.8238/B of 2008, decided on 17th October, 2008.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324/148/149/109---Bail, grant of---Only role attributed to the accused was that he, while armed with gun accompanied his other co-accused to the scene of occurrence---No allegation was on record against accused that he had caused any injury either to the deceased or to anyone else present at the spot---Bail was granted to accused.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324/148/149/109---Bail application, withdrawal of---Effect---Plea raised by the complainant was that as earlier bail application of the accused had been withdrawn after arguing the case at some length, the same would be deemed to have been dismissed on merits and as such present application was not maintainable---Validity---Held, in such a situation it could not be said that the case had been decided on merits.

Ali Hassan v. The State 2001 SCMR 1047 ref.

Ms. Sarah Bilal and Muhammad Waseem for Petitioner.

Muhammad Iqbal Chaudhry, Deputy Prosecutor-General for the State.

Aftab Ahmed Bajwa assisted by Shahzad Saleem Warraich for the Complainant.

Hussain Ali, Inspector/Incharge Investigation and Jaabar Hussain, A.S.-I. Police Station Narang Mandi, District Sheikhupura with police file.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 284 #

2009 P Cr. L J 284

[Lahore]

Before Tariq Shamim and Hasnat Ahmad Khan, JJ

MUHAMMAD AKHTAR and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.2161 and Murder Reference No.874 of 2002, heard on 8th October, 2008.

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

----S. 302(b)/34---Appreciation of evidence---Reasonable promptness in lodging the F.I.R. had excluded the possibility of deliberation or tutoring of witnesses---Eye-witnesses being of the same village knew the accused and their presence on the spot at the relevant time was natural and well-explained---Two eye-witnesses had received injuries in the occurrence---Discrepancies pointed out by defence being of minor nature, had no negative impact on the veracity of prosecution evidence---Relationship of witnesses with the deceased was not valid for discarding their evidence, particularly when the same was found credible and trustworthy---Eyewitnesses had no strong reason for false implication of accused---Medical evidence had supported ocular account on material particulars of occurrence---Motive behind the occurrence had been proved by prosecution---Accused had failed to establish his plea through any cogent evidence---Conviction and sentence of death of accused were maintained in circumstances.

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

----S. 302(b)/34--Appreciation of evidence---Two co-accused charged with the same role had been acquitted by Trial Court---Prosecution evidence was replete with material contradictions as regards the injury suffered by the witness and the weapon used---Injury attributed to accused having not been conclusively proved, was not free from doubt, which was simple in nature---Despite having been armed with a fire-arm, accused had not fired the same and his culpability was not aboveboard---Accused was acquitted in circumstances.

Zafar Iqbal Chohan, Malik Muhammad Suleman Awan and Mian Abdul Qayyum Anjum defence counsel for Appellants.

Ahsan Rasool Chattha, Dy.P.-G. for the State.

Date of hearing: 8th October, 2008.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 300 #

2009 P Cr. L J 300

[Lahore]

Before Kazim Ali Malik and Rana Zahid Mahmood, JJ

ZAFAR HUSSAIN and 4 others---Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.26 and Murder Reference No.67 of 2002, heard on 13th October, 2008.

(a) Administration of justice---

----Law does not recognize system of private revenge.

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

----Ss. 302(b)/324/148/149---Appreciation of evidence---Double murder---Description of injuries, failure to attribute---Quantum of sentence---Accused attacked complainant party in court room with sharp-edged weapons---Out of two deceased one suffered 22 injuries and the other sustained 24 sharp-edged weapon injuries on different parts of their bodies including face, forehead, abdomen and chest---Complainant also received sharp-edged weapon injuries at the hands of assailants---Trial Court convicted all accused persons under S.302(b), P.P.C. and sentenced them to death penalty---Plea raised by accused was that prosecution witnesses had specifically attributed each and every injury of deceased person---Validity---Way the deceased and prosecution witnesses were attacked, it was not possible for eye-witnesses including injured to attribute each and every injury of deceased person to -assailants specifically--All five accused actively participated in occurrence and caused Chhuri blows to deceased persons and injured complainant---Accused were caught red-handed with blood-stained Chhuries in Sessions Court premises---Mere fact that eye-witnesses could not attribute each and every injury of deceased persons to accused specifically would hardly benefit accused while determining quantum of sentence---Accused formed unlawful assembly which resulted in violence and, therefore, 'they all were convicted under S.148, P.P.C. and sentenced to three years imprisonment---All accused made murderous assault on complainant by causing sharp-edged weapon injuries on different parts of his body, therefore, all accused were convicted under Ss.324 & 149, P.P.C. and sentenced to five years imprisonment---High Court in exercise of appellate jurisdiction also maintained conviction and sentence awarded by Trial Court---Appeal was dismissed in circumstances.

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

----S. 342---Statement---Age of accused---Proof---Statement of accused without oath regarding his age cannot be and should not be accepted as conclusive proof of his age, particularly when he did not claim to be a juvenile at the commencement of trial.

Sahibzada Farooq Ali and Qazi Saddar-ud-Din Alvi for Appellants.

Rai Muhammad Zahid, Vice Counsel for the Complainant.

Zulfiqar Ali Sidhu, Addl. P.-G., Punjab for the State.

Date of hearing: 13th October, 2008.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 318 #

2009 P Cr. L J 318

[Lahore]

Before M. Bilal Khan, J

JAVAID IQBAL----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.7856/B of 2008, decided on 24th September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Emigration Ordinance (XVIII of 1979), Ss.17/22---Penal Code (XLV of 1860), Ss.3 & 4---Bail, refusal of---Accused was named in the F.I.R. and he and his co-accused were found involved in the transaction during inquiry held by FIA---Complainant and the other affectee had duly supported the allegation as contained in the F.I.R., in their statements recorded under S.161, Cr.P.C.---Trial Court had the jurisdiction to try the offence committed beyond Pakistan in view of the provisions of Ss.3 & 4, P.P.C.---Case against accused was not based on any mala fide or ill-will---Conduct of accused before Trial Court in absenting himself was not appreciable---Offence under S.22 of the Emigration Ordinance, 1979, was punishable with 14 years' R.I. or with fine or with both---Bail was declined to accused in circumstances.

Muhammad Sharif Khokhar for Petitioner.

Zubair Khalid, Standing Counsel for Government of Pakistan.

Maroof Hussain S.-I. Police Station FIA, Faisalabad with record.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 334 #

2009 P Cr. L J 334

[Lahore]

Before Hasnat Ahmad Khan and M.A. Zafar, JJ

MUHAMMAD HAFEEZ----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.1816 and Murder Reference No.791 of 2002, heard on 22nd September, 2008.

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

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Eye-witnesses had given full details of the occurrence including the role played by accused, weapon used by him and the seats of injuries on the person of the deceased---Said witnesses had no ill-will or enmity to falsely depose against the accused and their testimony could not be discarded solely on the ground of their relationship with the deceased---Medical evidence had fully corroborated the ocular account of occurrence---Motive for committing the murder had been proved against the accused---Special plea of self-defence taken by accused was neither spelt out from the circumstances of the case, nor he had tried to establish the same on record and defence plea was, therefore, ruled out of consideration---Conviction of accused was consequently maintained---However, eye-witnesses had contradicted each other regarding the injuries present on the person of accused and occurrence appeared to have taken place at the spur of the moment without any premeditation, in which both the parties had received injuries and the same were mitigating circumstances for awarding lesser sentence---Sentence of death of accused was reduced to imprisonment for life in circumstances.

Syed Ali Bepari v. Syed Nibaran Mollah and others PLD 1962 SC 506; Zahid Pervaiz and another v. The State PLD 1991 SC 558 and Muhammad Nawaz v. State PLD 2005 SC 40 rel.

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

----S. 302(b)---Appreciation of evidence---Parties not coming to Court with clean hands---Principle---Where parties do not come to the Court with the true story, then Court must not be deterred by the incomplete tale from drawing the inferences, which properly flow from the evidence and circumstances.

Syed Ali Bepari v. Syed Nibaran Mollah and others PLD 1962 SC 506 and Zahid Pervaiz and another v. The State PLD 1991 SC 558 ref.

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Principle---Benefit of all favourable instances in the prosecution evidence must go to the accused, regardless of the fact whether he has taken such plea or not.

Muhammad Nawaz v. State 2005 SC 40 ref.

Munir Ahmad Bhatti for Appellant.

Sahibzada M.A. Amin Mian, A.P.-G. for the State.

Syed Imdad Hussain Hamdani for the Complainant.

Date of hearing: 22nd September, 2008.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 346 #

2009 P Cr. L J 346

[Lahore]

Before Tariq Shamim and Zafar Iqbal Chaudhry, JJ

Rana SHAHBAZ RIAZ----Petitioner

Versus

SPECIAL JUDGE, ANTI-TERRORISM COURT, FAISALABAD and 13 others ----Respondents

Writ Petition No.8526 of 2008, decided on 29th October, 2008.

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

----Ss. 6, 7 & 23---Penal Code (XLV of 1860), Ss.302/109/324/148/149---Constitution of Pakistan (1973), Art.199---Constitutional petition---Sending back challan to the court of ordinary jurisdiction--Petitioner/complainant had challenged the validity of order passed by the Special Judge Anti-Terrorism Court whereby an application moved by accused under S.23 of Anti-Terrorism Act, 1997 for sending the challan to the court of ordinary jurisdiction was accepted and the challan was sent to the court of ordinary jurisdiction---Validity---Under provisions of S.6 of Anti-Terrorism Act, 1997, it was not necessary that the commission of murder must have created panic and terror among the people---Courts had only to see whether the terrorist act was such which would have the tendency to create sense of fear or insecurity in the minds of the people or any section of the society---Court had to see the psychological impact created by such act upon the minds of the people and it was not necessary that the said act must have taken place within the view of general public so as to bring it within the encompass of the Anti-Terrorism Act, 1997---Even an act having taken place in a barbaric and gruesome manner, if it had created fear and insecurity, would. certainly come within the purview of the Anti-Terrorism Act, 1997---Person would commit a terrorist act, if in order to or if the effect of his actions would be to strike terror or create a sense of fear and insecurity in the people or any section of the people---In the present case occurrence had taken place on the main road and in the main Bazar in front of Jamia Masjid in which murder of three innocent persons had been committed allegedly by the accused persons by firing with kalashnikovs and the complainant had also been injured , which must have caused shock, fear and insecurity among the people of the vicinity---If no crime empty was recovered from the place of occurrence at the time of spot inspection by the police, it could not be said that firing was not made and that occurrence had not taken place---All three deceased persons had received three to seven injuries on their persons and complainant had also sustained two fire-arm injuries on his person---Impugned order was set aside in circumstances.

Mst. Raheela Nasreen v. The State and another 2002 SCMR 908 ref.

Abdul Khaliq Safrani for Petitioner.

Ch. Riasat Ali for Respondents.

Amjad Ali Chattha, Asstt. A.-G. for the State with Anwar, S.-I.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 361 #

2009 P Cr. L J 361

[Lahore]

Before Tariq Shamim and Muhammad Ashraf Bhatti, JJ

SHAMRAIZ AKHTAR alias SHAMMA----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.647 of 2002, heard on 17th October, 2008.

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

----S. 302(b)---Appreciation of evidence---Ocular evidence was consistent, unimpeachable and credible---Complainant and accused knew each other---Occurrence having taken place in the Haveli of the complainant, his presence at the scene of occurrence was natural---Straightforward statement of complainant was fully corroborated on all material details by the other eye-witness---Ocular account was not in conflict with medical evidence---Complainant had no special reason for false involvement of accused in the case---Mistaken identity of accused was not possible---Opinion of police declaring the accused innocent in investigation was not correct, which even otherwise was not binding on the Court---Conviction of accused was maintained in circumstances---Was not clear as to whose fire had proved fatal and benefit of this doubt must go to the accused in the matter of reduction of sentence---Death sentence of accused was converted into imprisonment for life accordingly.

Noor Muhammad v. State 1999 MLD 60 rel.

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

----S. 302(b)---Sentence---Benefit of doubt---Benefit of every doubt must go to the accused in the matter of reduction of sentence.

Noor Muhammad v. State 1999 MLD 60 rel.

M.A. Hamid Awan and M. Asghar Khan Rokhri for Appellant.

Ch. Amjad Hussain, Dy. P.-G. and Munir Ahmad Bhatti for the State.

Date of hearing: 17th October, 2008.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 378 #

2009 P Cr. L J 378

[Lahore]

Before Syed Shabbar Raza Rizvi, J

ALLAH DITTA----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.2962/CB of 2008, decided on 17th October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.324/337-F(v)---Bail, cancellation of---Medical report showed that injury attributed to accused having caused fracture, S.337-F(v), P.P.C. was added into the F.I.R.---Accused though remained in jail for four months, but that was not an unusual time in cases which fell within the prohibitory clause of S.497, Cr.P.C.---Commencement of trial itself, was not sufficient consideration for granting bail in offences which were covered by prohibitory clause of S.497, Cr.P.C.---Trial Court had totally ignored the fact that at bail stage only a prima facie view or appreciation of . evidence was contemplated under the law---Incriminating material present on record included Medico-legal Report and other Expert opinion which had shown that the injury was caused to the injured by a fire of pistol directly and unequivocally attributed to accused---Pistol, the weapon of offence itself, was recovered from accused---All that material was sufficient, prima facie to connect accused with the commission of the offence alleged in the F.I.R.---When a bail was granted, it could only be cancelled on strong and exceptional grounds, which included a bail granting order passed in disregard of known principles and norms of law on the subject, or when the bail granting order was erroneously and factually incorrect---Trial Court was not justified to observe that nature of injury on the person of injured was not known or had not been established by the prosecution---Record had clearly shown that injured was caused a grievous injury which also caused fracture---Bail could also be cancelled when fresh material had been brought on the record---F.I.R. was initially registered under S.324, P.P.C., but subsequently S.337-F(v), P.P.C. was also incorporated---Accused had fired five shots, one of which had hit the injured on his leg---Trial Court, in circumstances, did not notice all the relevant circumstances while granting bail---Grounds and reasons narrated by the Trial Court seemed fanciful and arbitrary, which were also in conflict with the record---Order granting bail passed by the Trial Court, was set aside.

Abdur Razzaque Younas for Petitioner.

Rana Nadeem Ahmad Khan for Respondent.

Asif Mehmood Cheema, Dy. P.-G. with Subah Sadiq, S.-I. for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 384 #

2009 P Cr. L J 384

[Lahore]

Before Hasnat Ahmad Khan, J

ABBAS----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.4313/B of 2008, decided on 22nd September, 2008.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/147/149---Bail, grant of---Further inquiry---Benefit of doubt---Dispute between the complainant and accused over a piece of land---Contents of the F.I.R., revealed that it was the complainant who was made the target of aggression by accused, but despite the fact that he was available at the time of occurrence, he was not given even a scratch by accused---F.I.R. had farther showed that though seven persons, who were wielding hatchets and batons respectively, had attacked the complainant party in order to grab the possession of land from him, but none of the said weapons was used effectively by any of them---Investigating Officer had stated that the occurrence did not take place in the manner as alleged by the complainant, but deceased who was running to the place of occurrence, stumbled and fell on the ground, which resulted into a fatal injury on the back of her neck---For reaching the said conclusion the Investigating Officer recorded the statements of scores of people of the vicinity---No traditional weapon of offence was used by accused during the occurrence to knock down deceased, but she was allegedly knocked down by accused after holding her in his clasp---Question as to whether accused would ultimately be convicted under S.302, P.P.C. or would he be guilty under S.319, P.P.C., which was a bailable offence, would be determined after conclusion of the trial---Doubt about the applicability of S.302, P.P.C., in the case was lurking---Benefit of doubt could be given even at the bail stage---Case of accused required enquiry within the meaning of S.497(2), Cr.P.C.---Accused, who was suffering incarceration for the last one year, was granted concession of post-arrest bail, in circumstances.

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

----S. 497---Bail---Opinion of police---Opinion of the police though was not binding on the courts, but it was equally true that while deciding a bail application, the opinion of the police could be taken into consideration validly, provided same was based upon sound material---Accused after having been found to be innocent by the police would become entitled to bail as a matter of right.

Muhammad Asif Bhatti for Petitioner.

Shahid Mahmood Khan, Dy. P.-G. with Muhammad Tufail, S.-I. for the State.

Zafar Iqbal Khan for the Complainant.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 394 #

2009 P Cr. L J 394

[Lahore]

Before Tariq Shamim and Hasnat Ahmad Khan, JJ

AQSAL alias KALOO----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.226/J of 2003 and Murder Reference No.828 of 2002, heard on 8th October, 2008.

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

----S. 302(b)---Appreciation of evidence---F.I.R. had been lodged with reasonable promptitude---Occurrence having taken place in daylight, possibility of misidentification of the accused or his false implication in the case stood excluded---Eye-witnesses had given a detailed account of the events leading to the murder of the deceased and were unanimous on all material points---Mere relationship of the witnesses with the deceased was not a valid ground for excluding their testimony from consideration---Eye-witnesses were natural witnesses whose presence at the spot was well explained---Medical evidence was in conformity with the eye-witness account---Discrepancies pointed out were trivial- in nature and did not in any way adversely affect the merits of the prosecution case or cast doubt on the veracity of the witnesses---Motive being a supporting piece of evidence, non-proof thereof was inconsequential---Crime-empties secured from the spot had matched with the rifle recovered from the accused---Documents produced by the accused in his defence did not materially further his case---Conviction and sentence of accused were upheld in circumstances.

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

----S. 302(b)---Motive---Mere insufficiency, lack, non-proof or total absence of motive is of no consequence, as it is only a supporting piece of evidence, which relates to the state of mind of one accused and can be formed even at the spur of the moment.

Mian Abdul Qayyum Anjum and Abdul Majeed Chishti for Appellant.

Sahibzada M.A. Amin Mian, Addl. A.-G. for the State.

Date of hearing: 8th October, 2008.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 405 #

2009 P Cr. L J 405

[Lahore]

Before Muhammad Khalid Alvi, J

B U K H S H U----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.1625/B of 2008, decided on 26th September, 2008.

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

----S. 337-N(2), proviso---Hardened and desperate criminal---Sentence---Scope---Non-obstante clause of S.337-N (2) of P.P.C. (notwithstanding anything contained in this chapter, in all cases of hurt) brings out the cases of categories of criminals mentioned in this subsection out of ordinary criminals and are to be dealt with in accordance with this provision---All other types of criminals have been left out by nonobstante clause to be dealt with according to respective hurt case---By adding proviso through Criminal Law Amendment Act, 2004 (I of 2005) to S.337-N, P.P.C. and repeating the categories in the proviso as well by providing minimum sentence for already provided sentence for respective hurt cases, it makes the case further clear that such clause is specifically designed only for categories mentioned in S.337-N(2) P.P.C. and not for any other criminal.

1999 PCr.LJ 230 and 2007 MLD 1067 ref.

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

----Ss.324, 337-A(ii), 337-A(iii), 337-F(iii), 337-F(v), 337-F(i), 148 & 149---Criminal Procedure Code (V of 1898), S.497---Bail, grant of---Prohibitory clause---Accused caused hatchet injuries on the head of prosecution witness as well on complainant---Out of two injuries caused by accused, one injury resulted in fracture of skull caused with hatchet using sharp side---Offence committed by accused fell within the prohibitory clause of S.497 Cr.P.C.---Bail was dismissed in circumstances.

Muhammad Ameer Bhatti for Petitioner.

Ch. Zulfiqar Ali Sidhu, Addl. P.-G. with Akhtar A.S.-I. for the State.

Mian Abbas Ahmad Addl. A.-G. on Court call as an Amicus Curiae.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 413 #

2009 P Cr. L J 413

[Lahore]

Before Khurshid Anwar Bhinder, J

LIAQAT ALI----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.8579/B of 2008, decided on 19th November, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.395 & 412---Bail, grant of---Further inquiry---Accused though was nominated in the F.I.R., but no role had been ascribed to him---Occurrence was unseen because if all the eye-witnesses as mentioned in the supplementary statement, had been present at the place of occurrence, and as no mention was in the F.I.R. that accused along with his accomplices, were armed, they could have very easily been apprehended by the eye-witnesses---Had the accused persons been armed, then that aspect could have been believed that they had seen the occurrence and could not apprehend them because accused persons were armed, but no such thing was on record---No description of the feature or physical appearance of accused persons had been mentioned in the F.I.R.---Had accused been identified by the eye-witnesses, then certainly they could have been identified subsequently or their names could have been mentioned in the F.I.R.---No identification parade was ever held which was a mandatory requirement of law in cases of unseen occurrence---Such lapse on the part of the prosecution certainly would give benefit to accused persons regarding their identification---Eye-witness account mentioned in the supplementary statement by two persons, revealed that they had not directly seen accused persons, rather they had stated in their statement under S.161, Cr.P.C. that they had heard from one person that accused persons were so and so---Said hearsay evidence had absolutely no significance and was not admissible in the eye of law---Recovery of stolen fabric effected from accused was not effected from him alone rather it was a joint recovery which was also effected from co-accused, meaning thereby that case of accused clearly fell within the ambit of further inquiry into his guilt for the reason that it was not exactly known as to how much fabric was recovered from accused; and it was also to be seen whether recovered fabric was exactly the one which was stolen or it was something else---Such aspect of the case also made case of the prosecution doubtful---Case of accused being of further inquiry he was admitted to bail, in circumstances.

Muhammad Nazir v. State 2006 PCr.LJ 177; Muhammad Rafique v. State 1997 SCMR 412; PLD 1996 Lah. 402; 1999 MLD 1258; 2002 PCr.LJ 114 and 1981 PCr.LJ 696 ref.

Iftikhar Ahmad Malik for Petitioner.

Irshad Hussain Bhatti, D.P.-G. with Amjad S.-I. for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 430 #

2009 P Cr. L J 430

[Lahore]

Before M.A. Zafar and Muhammad Ahsan Bhoon, JJ

Subedar IMTIAZ AHMED----Appellant

Versus

Mst. FARZANA BIBI and 3 others----Respondents

Criminal Appeal No.331 of 2000, heard on 11th November, 2008.

Penal Code (XLV of 1860)---

---S. 302/34---Criminal Procedure Code (V of 1898), S.417(2-A)---Appeal against acquittal---Prosecution had failed to prove the motive for the murder of the deceased against the accused through any independent and corroborative evidence---Solitary statement of real brother of the deceased being an interested witness, was of no avail to prosecution regarding motive---Extra-judicial confession made by one accused being exculpatory in nature was inadmissible in evidence and the same could not be considered as evidence against co-accused at any touchstone of criminal administration of justice---No other incriminatory material was collected against the accused---Female accused initially was complainant in the case of murder of her husband, but later on she had been arrayed as an accused on the joint application made by all the brothers of the deceased---Record did not indicate as to how she was shifted from the calendar of prosecution witnesses to the array of accused---Recovery of pistol from the said accused did not connect her with the commission of crime---Reasons advanced by Trial Court for acquittal of accused were neither perverse nor fanciful---Double presumption of innocence was attached to accused after their acquittal by a competent Court---Appeal against acquittal of accused was dismissed in circumstances.

Ch. Muhammad Tariq, Addl. P.-G. for the State.

Date of hearing: 11th November, 2008.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 444 #

2009 P Cr. L J 444

[Lahore]

Before Tariq Shamim and Zafar Iqbal Chaudhry, JJ

AKHTAR HUSSAIN alias KAKA----Appellant

Versus

THE STATE----Respondent

Criminal Appeals Nos.211, 212, Criminal Revision No.218 and Murder Reference No.230 of 2003, decided on 18th November, 2008.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Eyewitnesses of occurrence, closely related to deceased and living at a distance of one mile from the spot, had failed to justify their presence at the scene of occurrence---Glaring inconsistencies between the ocular account and the medical evidence had led to an inescapable conclusion that eye-witnesses had not seen the incident and their, testimony was not based on truth---Complainant having failed to produce any evidence before the Investigating Officer in support of motive behind the murder of the deceased, the same would not be considered as proved by the prosecution at the trial---Evidence of recovery was excluded from consideration, as the crime-empties collected from the spot and the pistols recovered from the accused were sent to the Forensic Science Laboratory together and the report of Forensic Science Laboratory was not put to the accused in their statements recorded under S.342, Cr.P.C. as an incriminating circumstance against them--Benefit of doubt was extended to accused in circumstances and they were acquitted accordingly.

Aftab Farrukh for Appellant.

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

Sardar Abdul Majeed Dogar, for the Complainant.

Date of hearing: 18th November, 2008.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 469 #

2009 P Cr. L J 469

[Lahore]

Before Kazim Ali Malik and Rana Zahid Mahmood, JJ

IFTIKHAR AHMED----Petitioner

Versus

THE STATE and another----Respondents

Criminal Revision Petition No.344 of 2006, decided on 21st October, 2008.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 540---Summoning of Chemical Analyst as court witness---Application for summoning the Chemical Analyst as Court witness in the case having been dismissed by the Trial Court, applicant had, filed revision against that order--Contention of the petitioner was that 20 packets of Charas were allegedly recovered from the petitioner, while one packet was containing one Kg. opium; and the Investigating Officer separated 10 grams each from the opium out of 20 packets of Charas and then Charas was mixed into one packets of 200 grams and was sent to the Chemical Examiner for report and the Chemical Examiner gave positive report in that respect---Plea of the petitioner was that since the Investigating Officer had mixed all the 20 packets of 10 grams each, therefore Chemical Analyst was required to be summoned as court-witness to face cross-examination by accused as each independent packet of 10 grams was required to be sent to the Chemical Analyst for report---Validity---Counsel for the petitioner could not convince as to why Chemical Analyst was desired to be summoned by the petitioner for cross-examination and on what count; and even if the Investigating Officer had mixed 20 packets of samples of 10 grams each into one composite packet of 200 grams after taking 10 grams each from 20 packets of Charas weighing 24 Kgs. allegedly recovered from the petitioner, what prejudice had been caused to the petitioner and why Chemical Analyst was required to be summoned---From all packets of recovered Charas 10 grams each was separated for chemical analysis and the total was mixed into one picket of 200 grams and was sent to Chemical Analyst and the report was positive; as regarded one Kg. packet of opium, 10 grams opium was separately taken out from said one Kg.; and separately sent to Chemical Analyst, report of which was also on record---No prejudice had been caused to the petitioner by the report of Chemical Analyst, at least by the Trial Court in refusing his application for summoning the Chemical Analyst, as court-witness---Nothing was in the impugned order, which could be considered to be illegal---Petition was dismissed.

Peer Akhtar Hussain Bodla for Petitioner.

Miss Humaira Naheed Khan, Special Prosecutor for A.N.F.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 497 #

2009 P Cr. L J 497

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD AKRAM----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.4417/B of 2008, decided on 27th October, 2008.

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

----S. 497---Penal Code (XLV of 1860), S.489-F---Bail, grant of---On demand of return of his amount by the complainant given to accused for securing him visa for going abroad, two cheques issued by the accused to him had been dishonoured by the Bank---Criminal law is based on the dictum that every one is innocent unless proved guilty by the Court---Police may collect incriminating material against the accused during the course of investigation, but presumption of innocence still remains in favour of accused, unless he is tried, convicted and sentenced by a competent Court---Even otherwise, release of an accused person on bail does not amount to his acquittal, but his judicial custody is transferred to a private person/surety, who is bound to produce the accused person before the Court---In offences not covered by the prohibitory clause of S.497, Cr.P.C., bail is granted as a rule and its refusal is an exception---Case against accused was not covered by the prohibitory clause of S.497, Cr.P.C. and he was allowed bail accordingly.

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

----S. 497---Bail---Principle---Practice and procedure---Bail in offences which are not covered by the prohibitory clause of S.497, Cr.P.C. is granted as a rule and its refusal is an exception which practice is being consistently followed by superior Courts.

Hafiz Khalil Ahmad for Petitioner.

Asif Mahmood Cheema, D.P.-G. for the State.

Mian Mahmood Ahmad Kasuri for the Complainant. Hassan Baig S.-I.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 506 #

2009 P Cr. L J 506

[Lahore]

Before Syed Shabbar Raza Rizvi and Hasnat Ahmad Khan, JJ

MUHAMMAD NAWAZ and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.1617, 465 and Murder Reference No.18/T of 2004, decided on 6th November, 2008.

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

----S. 302(b)/34---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Appreciation of evidence---Benefit of doubt---F.I.R. was not lodged at police station rather it was recorded on the basis of the written statement received by Investigating Officer from the complainant right at the spot---F.I.R. written at the spot would be presumed to have been recorded after preliminary investigation---Complainant was found to have not witnessed the occurrence---Glaring and irreconcilable contradictions had occurred between the ocular testimony and medical evidence---Police appeared to have recorded the statements of eye-witnesses after receipt of post-mortem report---Parties had a background of enmity---Complainant and other eye-witness were related to the deceased---One eye-witness related to complainant had been dropped by prosecution as a won-over witness, which indicated that he was not inclined to support the prosecution version considering the same to be false---Despite the place of occurrence having been located in a populated area, no independent witness had come forward to support the prosecution's case---Eye-witness at the trial had tried his level best to withhold certain facts from the Court and dilute the effect of glaring contradiction in his statement recorded under S.161, Cr.P.C. and the contents of the F.I.R. and had made further improvements to bring his evidence in line with medical evidence---Eye-witnesses examined by the prosecution had not actually seen the occurrence and their evidence was neither believable nor confidence inspiring---Delay of twenty days in dispatching the crime-empties to the Forensic Science Laboratory coupled with the conduct of the Investigating Officer who had tried to improve the prosecution's case, had made the recoveries of the weapons of offence and the report of Forensic Science Laboratory unreliable, which even otherwise had been effected in violation of the provisions of S.103, Cr.P.C.---Fake recoveries had also exposed the mala fides of the Investigating Officer---Ocular testimony having been disbelieved in its entirety, conviction of accused could not be maintained only on the basis of the incriminating recoveries and positive report of Forensic Science Laboratory, evidentiary value of which was that of corroborative nature---Doubts were floating on the surface of the case---Accused were acquitted in circumstances.

Muhammad Naeem v. The State 1998 PCr.LJ 292; Muhammad Sharif Khan v. The State 1991 PCr.LJ 1992; Attaullah and others v. The State PLD 1990 Pesh. 10; Ahmad and 4 others v. The State 1988 PCr.LJ 1133; Muhammad Javed and 2 others v. The State PLD 1988 Lah. 671; Mst. Masood Begum v. Muhammad Maroof and 2 others 1998 PCr.LJ 56 and 1947 Cr.LJ 730 ref.

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

----S. 302(b)/34---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Appreciation of evidence---F.I.R. recorded on the spot---Presumption---Where the F.I.R. is written at the spot, it is normally presumed that the same was recorded after preliminary investigations/enquiries.

Munir Ahmad Bhatti for Appellant.

Kh. Sultan Ahmad for the Complainant.

Barrister Salman Safdar, Special Prosecutor and Ch. Abdul Razzaque Kamboh, D.P.-G. for the State.

Date of hearing: 21st October, 2008.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 533 #

2009 P Cr. L J 533

[Lahore]

Before Tariq Shamim and Zafar Iqbal Chaudhry, JJ

MUHAMMAD RAMZAN and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.113/J and Murder Reference No.55 of 2007, heard on 3rd November, 2008.

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

----S. 302(b)/34---Appreciation of evidence--Benefit of doubt---Delayed post-mortem of the dead body of the deceased had indicated that the F.I.R. was recorded after preliminary investigation---Names of the assailants or the eye-witnesses having not been mentioned in the F.I.R., the same was of no use---Prosecution witnesses furnishing ocular evidence and evidence of Vajtakkar were chance witnesses who had failed to give any plausible explanation for their presence at the place of occurrence during odd hours of night---Conduct of said witnesses at the time of occurrence and even thereafter was most unnatural, who even did not claim to have met each other despite being present near the spot at the relevant time---Ocular and Vajtakkar witnesses had narrated a cooked up story which was not corroborated by any independent source and did not connect the accused with the alleged crime---Recovery of pistol from the accused was inconsequential as the same and the bullet recovered from the spot were not sent to Forensic Science Laboratory for obtaining opinion whether the said bullet was fired from the said pistol or not and whether the pistol was in working condition or not---Defence plea taken by accused was not discussed, as the prosecution had itself failed to prove the case against both the accused beyond any shadow of doubt---Accused were extended benefit of doubt and acquitted in circumstances.

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

----S. 302(b)/34---Appreciation of evidence---Post-mortem delayed---Inference---Delayed post-mortem usually leads to an inference that the F.I.R. might be recorded after preliminary investigation.

Kh. Waseem Abbas for Appellant (Muhammad Ramzan on State expense).

Muhammad Ashraf Sagoo and Hafiz Khalil Ahmad for Appellant (Mst Razia Bibi).

Sahibzada M.A. Amin Mian, Addl. P.-G. for the State.

Date of hearing: 3rd November, 2008.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 547 #

2009 P Cr. L J 547

[Lahore]

Before Tariq Shamim and Zafar Iqbal Chaudhry, JJ

KAMAL SHAH and 2 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.1798, 437/J of '003 and Murder Reference No.526 of 2004, heard on 24th November, 2008.

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

----Ss. 302(b)/149 & 148---Appreciation of evidence---Sentence, reduction in---Motive behind the murders of the deceased had been proved against the accused---Consistent, convincing and credible ocular testimony, corroborated by strong motive and medical evidence, had proved that accused, in order to take revenge of abduction of the daughter of one accused, had entered the house of the complainant with common intention and committed the murders of the deceased---Medical evidence was conclusive as to the time of occurrence, locale of injuries as well as the weapon used in the occurrence---Murder based on "Ghairat" would not furnish a valid mitigating circumstance for awarding a lesser sentence---Sufficient light was available at 4-30 a.m. in the month of June for the witnesses to see the occurrence---Promptly lodged F.I.R. had excluded the possibility of deliberation, consultation and false implication---Accused being previously known to the complainant party, question of misidentification did not arise---Accused had committed the murder in a brutal manner without showing any mercy even to the few months old infant and had eliminated the entire family with a design---Convictions and sentences of accused were upheld in circumstances, except one accused whose death sentence was reduced to imprisonment for life due to his old age, who was well over 70 years old---Appeal was disposed of accordingly.

Muhammad Akram Khan v. The State PLD 2001 SC 96; Muhammad Sadiq v. The State 2008 SCMR 171; Muhammad Ibrahim v. The State 1979 PCr.LJ 275 and Muhammad Aslam Shah v. The State 1993 PCr.LJ 704 ref.

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

----Ss. 302(b)/149 & 148---Constitution of Pakistan (1973), Art.9---Sentence---Murder based on "Ghairat", not a mitigating circumstance for awarding a lesser sentence---Legally and morally speaking, nobody has any right nor can anybody be allowed to take law in his own hands to take the life of anybody in the name of "Ghairat"---Neither the law of the land nor religion permits so-called "honour killing" which amounts to murder (Qatl-i-Amd) simplicter---Such inquisitive and vile act is violative of fundamental right as enshrined in Art.9 of the Constitution, which provides that no person would be deprived of life or liberty except in accordance with law and any custom or usage in that respect is void under Art.9(1) of the Constitution.

Muhammad Akram Khan v. The State PLD 2001 SC 96 ref.

Syed Zahid Hussain Bokhari for Appellants.

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

Date of hearing: 24th November, 2008.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 563 #

2009 P Cr. L J 563

[Lahore]

Before Syed Shabbar Raza Rizvi and Fazal-e-Miran Chauhan, JJ

YAQOOB alias BHUGI----Appellant

Versus

THE STATE----Respondent

Criminal Appeals Nos.1709 of 2003, 1050 of 2004 and Murder Reference No.933 of 2003, heard on 6th October, 2008.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Appreciation of evidence---Occurrence had not taken place in the manner as stated by prosecution---Medical evidence was in complete conflict with ocular testimony---Presence of eye-witnesses on the spot at the relevant time was not convincing---Was very unnatural for 80/90 years old mother of the deceased to make a programme with her deceased son to go to Lahore for prosecution of a murder case---Shopkeepers including the one in whose shop the complainant's son was killed, despite their statements having been recorded by Investigating Officer under S.161, Cr.P.C., were not deliberately produced in the Court---Post-mortem of deceased was conducted after more than ten hours of the occurrence, although the hospital and police station were not very far off from the place of occurrence---Statements of eye-witnesses were discrepant on several material points---In the admitted background of enmity between the parties, defence version of false involvement appeared to be more plausible than the prosecution version, which was replete with doubts and contradictions---Accused were acquitted in circumstances.

M. Asghar Khan Rokhari for Appellant.

Ijaz Ahmad Bajwa, D.P.-G. for the State.

Date of hearing: 6th October, 2008.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 578 #

2009 P Cr. L J 578

[Lahore]

Before Kazim Ali Malik, J

Sardar SHAH NAWAZ KHAN----Petitioner

Versus

MALKI AMAN and others----Respondents

Writ Petition No.338 of 2008, heard on 21st January, 2009.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Restoration of possession---Complainant was lawful owner of disputed house and respondent was illegal occupant of the same as he had no relevant document of title in his possession---Respondent attempted to justify his illegal possession on the basis of agreement of sale executed by a person who was neither owner of the house nor lawfully appointed attorney of the owner---Validity---Purpose of special law was to protect rights of possession of lawful owner---Trial Court dismissed complaint of lawful owner against unauthorized occupant of house summarily, arbitrarily and without application of judicial mind---Order passed by Trial Court being illegal and offensive to law laid down by Supreme Court could not be allowed to hold the field---High Court, in exercise of constitutional jurisdiction, set aside the order passed by Trial Court and case was remanded for its decision on merits in accordance with law---Petition was allowed accordingly.

PLD 2007 Lah. 231; 2007 PCr.LJ 224; 2007 PCr.LJ 181 and 2007 MLD 1398 ref.

Rahim Tahir v. Ahmad Jan and 2 others PLD 2007 SC 423 rel.

Sardar Muhammad Hafeez for Petitioner.

Syed Masood-ul-Hassan Bukhari for Respondent.

Syed Hussain Kazmi, A.A.-G.

Date of hearing: 21st January, 2009.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 584 #

2009 P Cr. L J 584

[Lahore]

Before Fazal-e-Miran Chauhan and Khurshid Anwar Bhindar, JJ

M. SHOIB QURESHI and others----Petitioners

Versus

Mrs. ZOHRA ZULQARNAIN----Respondent

Criminal Revision No.915 of 2005, decided on 22nd April, 2008.

Penal Code (XLV of 1860)---

----Ss. 380/409---Special Judge Banking had summoned the accused employees of the Bank in a criminal complaint filed by the respondent after recording preliminary evidence, regarding a theft having taken place in the Bank Lockers including that of the complainant---Validity---Accused, present Manager of the Bank was not posted in the concerned Branch on the date of occurrence---Accused, who was the Manager on the day of incident at the most could be termed the custodian of the stolen property of the complainant, but he was neither alleged to have connived in the occurrence, nor stated to be involved in any manner in the theft committed in the bank---Theft, as per F.I.R., was committed by unknown persons with the connivance of the guard who was posted on the day of occurrence and used to sit inside the Branch---Said guard was not employee of the Bank and the Agency which had provided the security was responsible for the omission of act of its employee and not the employee of the Bank---Cursory statement recorded by Trial Court did not constitute any offence nor connected the accused petitioners with the said occurrence in any manner---Impugned order summoning the petitioners as accused in the complaint was set aside in circumstances.

Tafiq A. Hussain Country Head American Express Bank and others v. Special Judge (Offences in respect of Banks) and others 2001 YLR 287 ref.

Ahmad Awaiz for Petitioner.

Jawad Hassan for Respondents.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 588 #

2009 P Cr. L J 588

[Lahore]

Before Khurshid Anwar Bhinder, J

FOZIA BIBI----Petitioner

Versus

STATION HOUSE OFFICER----Respondent

Criminal Miscellaneous No.162-H of 2009, decided on 11th February, 2009.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas Corpus petition---Maintainability---Petitioner/mother of minors seeking recovery of minor detenus, had filed habeas corpus petition against father of the minors---Father being natural guardian of minor, it could not be said that minor children were in the illegal and improper custody of father'---Since proceedings regarding custody of minors, were not pending before the Guardian Court, petitioner had filed habeas corpus petition before High Court against father of the children---Forum to decide the custody of children was very much available to the petitioner to decide her claim on the basis of merits---Mother could always claim the custody of children before the competent forum---Habeas petition, in circumstances, was not competent against father of the children he being natural guardian of the children.

Naziha Ghazali v. The State and another 2001 SCMR 1782 rel.

Imran Butt for Petitioner.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 593 #

2009 P Cr. L J 593

[Lahore]

Before Zafar Iqbal Chaudhry, J

AAMAR ALI----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.10544/B of 2008, decided on 21st November, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.365-B---Bail, grant of---Accused though had not been declared innocent, but sufficient material had been collected by the Investigating Officer in support of the plea taken by accused that in fact the complainant being sui juris had contracted Nikah with him out of her free will and consent---Even otherwise, there was delay of seventeen days in lodging the F.I.R.---Accused was not required for the purpose of investigation---No allegation of Zina had been levelled against the accused---Accused was admitted to bail, in circumstances.

Ch. Muhammad Shahid Buttar for Petitioner.

Mian Ismat Ullah, D.P.-G. for the State along with Safdar Pervaiz S.-I. with record.

Complainant in person.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 619 #

2009 P Cr. L J 619

[Lahore]

Before Hasnat Ahmad Khan and Zubda-tul-Hussain, JJ

NASREEN BJBI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.85/J and Murder Reference No.11 of 2003, heard on 21st January, 2009.

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

----S. 302(b)---Appreciation of evidence---Case against accused was of circumstantial evidence---Nobody had seen the accused cooking the meals---Prosecution witnesses had allegedly seen only mixing of the poison in the "Ghee", but the subsequent alleged activity of the accused was not witnessed by them---Complainant although had produced the bottle containing the pesticide before the police from which it was mixed in the "Ghee", yet evidence did not show that the bottle was procured from the custody of accused---Even the material contained in the said bottle was never sent for chemical examination to prove that the material was actually poisonous and that the poisonous ingredient found in the viscera of the two deceased was the same or at least of the same nature, as was contained in the bottle---Unless and until the poisonous material of the viscera was found matching with the poisonous pesticide of the bottle, it could not be concluded that the cause of death of the deceased was the administration of the same poison, which had allegedly been mixed in the "Ghee" by the accused---Besides the two deceased persons seven other family members had also been affected by the alleged administration of poisonous food by the accused, but no material was extracted or otherwise taken from their stomachs etc., and sent for chemical examination-Administration of poison to human beings by itself was a serious offence, but prosecution had never pressed it into service against the accused, nor the accused was charge-sheeted for murderous attempt on the seven surviving persons---Whole occurrence was stated to be based on the conspiracy hatched and abetment made by the three accused brothers of the accused, who had been acquitted by Trial Court and their acquittal had not been challenged in appeal---On account of non-proof of the alleged conspiracy and abetment, the evidence and the allegations relating to the consequential action/offence of the accused had also become doubtful---Whole prosecution case hinged upon the reports of chemical examiner, which had not been tendered in evidence in original and the attested photo copies thereof were placed on record, which were not admissible in evidence under the law---However, High Court did not consider it feasible or expedient to remand the case to Trial Court on such technical ground, when on the basis of other evidence accused was found entitled to benefit of doubt---Accused was acquitted in circumstances.

Munawar Shah v. Liaquat Hussain and others 2002 SCMR 713; Sh. Muhammad Amjad v. The State PLD 2003 SC 704; Muhammad Ahmed v. State and 5 others PLD 1995 SC 590; Hakim Ali and 4 others v. The State and another 1971 SCMR 432; Muhammad Yameen v. The State 1987 PCr.LJ 1576 and Mukhtar Ahmed v. Muhammad Younus 2001 CLC 1796 ref.

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

----S. 302(b)---Circumstantial evidence---Nature and scope---Circumstantial evidence is a weak type of evidence and conviction can be based on such evidence only if the same is duly corroborated by such evidence which maintains a complete chain of the circumstances directly relatable to each other---When any link in the chain is missing in a case of circumstantial evidence, it would not be safe to record conviction.

Munawar Shah v. Liaquat Hussain and others 2002 SCMR 713 and Sh. Muhammad Amjad v. The State PLD 2003 SC 704 rel.

----S. 302(b)--Motive---Ordinarily weakness or insufficiency of motive or even the absence of motive in murder cases cannot be considered as a circumstance to justify the acquittal, but where motive would be the only reason for committing the murder or the murderous assault and in the absence of such motive there would have been no possibility of murder at all, the complexion of the proposition would be changed.

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

----S. 302(b)---Failure of prosecution to prove motive---Effect---Prosecution is bound to prove the motive set up by it, in failure whereof adverse inference be drawn and the prosecution has to suffer the consequences instead of the defence.

Muhammad Ahmed v. State and 5 others PLD 1995 SC 590 and Hakim Ali and 4 others v. The State and another 1971 SCMR 432 ref.

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

----S. 510---Report of Chemical Examiner---Attested copy---Admissibility---Attested copy of the report of Chemical Examiner is not admissible in evidence.

Muhammad Yameen v. The State 1987 PCr.LJ 1576 and Mukhtar Ahmed v. Muhammad Younus 2001 CLC 1796 ref.

(f) Administration of justice---

----Technicalities---Technicalities may not be allowed to hamper the administration of justice.

Mian Abdul Qayyum Anjum for Appellant.

Malik Abdus Salam, D.P.-G. for the State.

Date of hearing: 21st January, 2009.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 656 #

2009 P Cr. L J 656

[Lahore]

Before Zubda-tul-Hussain, J

MUHAMMAD ZAFAR----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.6/B of 1999, decided on 29th January, 2009.

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

----Ss. 497 & 498---Penal Code (XLV of 1860), Ss.324/337-H(ii)/148/149---Bail, grant of---Principles---Ipsi dixit of police though was not binding on the courts, but the proceedings taken during the investigation could be taken into consideration in conjunction with or in contradistinction of the other circumstances of the case---Appreciation of evidence and drawing conclusion therefrom was the exclusive function of the Trial Court; and same could not be pre-empted by the superior courts dealing with an ancillary matter of grant of bail pending the trial, but the law had not prohibited provisional or tentative assessment of case at bail stage---Tentative appreciation of evidence was always to be distinguished from elaborate sifting of evidence and if the plea taken by the complainant was borne out by tentative assessment of the evidence, the bail could be refused---Bail was to be allowed, if grounds were for further enquiry into the guilt of accused---Bail matter could not be decided in vacuum and the available material could be looked into---Court could not refuse to look at the result of the medico-legal examination of the victim when available on record---Deeper appreciation of evidence, would essentially imply going far down from the top to the surface of the record; and with a relatively greater impact as against the facts prima facie borne out on the record---Where, however, the position of the injuries was clearly and categorically given in the F.I.R. as well as in the medico-legal report; and the position depicted by both was patently neither in conflict with each other; nor was in consonance, the distinction or the contradiction, if brought out therefrom, could not be termed as deep appreciation of evidence.

Muhammad Hanif v. Manzoor and others 1982 SCMR 153 ref:

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

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss.324/337-H(ii)/148/149---Pre-arrest bail, confirmation of---Further inquiry---Contents of F.I.R. had revealed that accused and his co-accused were alleged of giving firearm injuries to the victim---Fire-arm injury allegedly given by accused had its seat on the waist of the victim---Such injury, had however been shown to be the exit wound, in the medico-legal report---Nothing was on record nor had it been so contended on behalf of the prosecution that medico-legal report was a collusively prepared document in relation to the material injury attributed to accused---F.I.R. and the medical evidence in the case proceeded on a point which needed further clarification by means of the trial of the case---Case was obviously of further enquiry to establish the guilt of accused or even to show that he had performed the role attributed to him in the F.I.R.---Alleged vicarious liability also could not be a reason to conclude otherwise because such liability by itself was subject to determination by further inquiry at the trial of the case---When it had come out as a case of further inquiry against accused, he was entitled even to the pre-arrest bail---Ad interim pre-arrest bail granted to accused, was confirmed in circumstances.

Zahid Iqbal for Petitioner.

Ghulam Qadir Bari, A.P.-G. with Muhammad Musa, S.-I. for the State.

Khan Imtiaz Ali Khan for the Complainant.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 677 #

2009 P Cr. L J 677

[Lahore]

Before M. Bilal Khan, J

TAHIR ISLAM----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.10915/B of, 2008, decided on 4th December, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.392/411---Bail, grant of---Further inquiry---Initially the name of accused along with his co-accused did not figure in the F.I.R., but it surfaced for the first time in supplementary statement made by the complainant, five days after occurrence wherein he had stated that he had found out accused persons as the culprits---As a result of that supplementary statement accused and the rest of the three named accused had also been arrested---Allegation against accused and his co-accused was absolutely identical---During course of hearing of the bail application of the two co-accused, complainant got his statement recorded before the Magistrate, wherein he had resiled from his earlier stance taken in supplementary statement and had stated that he had named said two co-accused on basis of some misunderstanding---Complainant appeared to have arrogated to himself the authority to first involve some persons in a serious criminal case and thereafter declare them innocent---Such function was' the exclusive domain of the Investigating Agency and could not be assigned or delegated to the complainant---Possibility that accused had also been involved on the basis of some misunderstanding or on the asking of some body, could not be ruled out---Such itself was sufficient to render the case of accused one of further inquiry within the meaning of subsection (2) of S.497,Cr.P.C.---Accused was admitted to bail, in circumstances.

Ch. Humayun Rashid for Petitioner.

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

Muhammad Javaid A.S.-I. Police Station Gogera, District Okara with police file.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 681 #

2009 P Cr. L J 681

[Lahore]

Before Tariq Shamim and Muhammad Ahsan Bhoon, JJ

MUHAMMAD MUSHTAQ alias PIDDI and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.1418, 1419, Criminal Revision No.1022 of 2002 and Murder Reference No.658 of 2003, heard on 10th September, 2008.

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

----S. 302(b)---Appreciation of evidence---F.I.R. had been lodged with reasonable promptitude---Incident having occurred in daylight and the accused being known to complainant party, no mistake could creep in correct identification of accused---Eye-witnesses were natural witnesses of the occurrence and their presence at the scene of occurrence could not be doubted or disputed---Previous enmity between the parties being non-existent false involvement of accused in the case was out of question---Eye-witnesses had furnished a consistent and credible account of occurrence---Minor discrepancies and slight improvements in prosecution evidence on account of passage of time did neither vitiate the trial nor damage the ocular testimony---Relationship of witnesses with deceased alone was not enough to discard their statements---Medical evidence had fully corroborated the ocular evidence---Defence plea taken by accused at the trial was not substantiated on record---Conviction and sentence of death of accused were affirmed in circumstances.

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

----S. 302(b)---Assessment of evidence---Motive---Principle---Motive is the state of mind of an accused which can be formed even at the spur of the moment---Lack of proof, non-proof or even absence of motive are of no consequence, as those are only a supporting piece of evidence.

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Five co-accused in the case armed with fire weapons and "Sotas" had been acquitted by Trial Court---After having disbelieved the recovery of pistol from the accused for various reasons, his case was at par with the said acquitted co-accused and in view of rule of consistency he also deserved acquittal---Benefit of doubt was extended to accused in circumstances and he was acquitted accordingly.

Ch. Ghulam Mustafa Bandesha for Appellant.

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

Sheikh Fazal Elahi Shahid for the Complainant.

Date of hearing: 10th September, 2008.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 690 #

2009 P Cr. L J 690

[Lahore]

Before M.A. Zafar, J

NABI BAKHSH and 3 others----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.12685/B of 2008, decided on 23rd December, 2008.

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

----Ss. 497/498---Bail---Concealment of filing and dismissal of earlier bail application---Steps to avoid the same along with the duties of Lawyers in this regard emphasized by High Court.

Abdul Ghafoor v. The State PLD 1975 Lah. 754 quoted.

Muhammad Khan v. Muhammad Asalm and 3 others 1971 SCMR 789 and Faiz Ullah Khan v. Pir Mukamal Shah PLD 1961 SC 34 ref.

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

----S. 498---Penal Code (XLV of 1860), Ss.420/467/468/471---Pre-arrest bail, refusal of---Despite dismissal of earlier application of pre-arrest bail accused persons had not surrendered so far and in view of their conduct they were not entitled to any discretionary relief and their second bail before arrest application was not competent---Contention that in view of the report of Finger Print Bureau in favour of accused fresh ground was available to them to move the present bail application was misconceived, as the said report was available even at the time when previous bail petition of accused was dismissed being not pressed by High Court---Retired official of Finger Print Bureau at the asking of accused had prepared the aforesaid report privately---Dismissal of earlier bail application had been mentioned in the order of Sessions Court, but despite that it was not disclosed in the present application and technically wrong certificate had been given by the counsel for the accused at the end of the bail application---Bail was declined to accused in circumstances.

Abdul Ghafoor v. The State PLD 1975 Lah. 754; Muhammad Khan v. Muhammad Aslam and 3 others 1971 SCMR 789 and Faiz Ullah Khan v. Pir Mukamal Shah PLD 1961 SC 34 ref.

Ch. Waseem Ahmad Gujjar for Petitioner.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 700 #

2009 P Cr. L J 700

[Lahore]

Before Khurshid Anwar Bhinder, J

NAZIR AHMAD----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1564/B of 2009, decided on 24th February, 2009.

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

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Accused, no doubt, was nominated in the F.I.R., but Court had to see as to whether the offence under which he was liable to be tried, was attracted in the case or not---No eye-witness of the occurrence was on record---None of the family members knew about the murder of the complainant's husband committed in the house, which was practically impossible as no hue and cry was ever made by the deceased---Such aspect of the case spoke volumes of false implication of accused, as he had already been declared innocent in police investigation and no crime weapon was recovered from him---Evidence based on extra-judicial confession of accused being a very weak type of evidence, could not be believed without corroboration by other independent source---Case against accused needed further inquiry into his guilt and he was admitted to bail accordingly.

(b) Criminal trial---

---Confession---Extra-judicial confession---Nature and scope---Extrajudicial confession is a very weak type of evidence and it cannot be believed until and unless it is corroborated by other independent source.

Ch. Masood Ahmed Zafar for Petitioner.

Fiaz Ahmed, D.P.-G. with Abbas, A.S.-I.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 705 #

2009 P Cr. L J 705

[Lahore]

Before Muhammad Khalid Alvi and Muhammad Ahsan Bhoon, JJ

ZAWAR HUSSAIN ----Petitioner

Versus

THE STATE and 3 others----Respondents

Writ Petition No.6887 of 2008, heard on 26th January, 2009.

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

----Ss. 7 & 21-E---Penal Code (XLV of 1860), Ss.302/324/353/186/427/148/149---Constitution of Pakistan (1973), Art.199---Constitutional petition---Physical remand of accused respondents refused by the Anti-Terrorism Court---Validity---While refusing further physical remand of accused, Anti-Terrorism Court had not given any cogent reason and had lost sight of the fact that they after their arrest as suspects had been identified as perpetrators of the heinous crime, wherein one police constable had lost his life and other constable had been seriously injured---Investigating Officer had collected 125 crime-empties from the spot and weapons of offence were yet to be recovered from the accused, who were stated to be hardened criminals and desperate offenders---Grant of further remand of accused was inevitable in view of their criminal antecedents---Grant or refusal of physical remand of accused must be made with judicious application of independent mind, which the Trial Court had failed to do---Impugned order was a non-speaking order being devoid of any plausible reason and having been passed without even having a glance at the police record---Contention that no physical remand of the accused could be granted beyond seven days, had no force---Fifteen days time was provided by S.21-E of the Anti-Terrorism Act, 1997, for the purpose of physical remand, but keeping in view the difficulties of investigation proviso to subsection 21-E(2) of the said Act postulated that even such period could be extended to thirty days---Complainant Police Officer was an aggrieved person and he had no alternate remedy to challenge the impugned order, which was set aside in circumstances---Trial Court was directed to grant seven days further physical remand of accused respondents to Investigating Officer and pass a fresh order in accordance with law---Constitutional petition was allowed accordingly.

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

----S. 21-E---Criminal Procedure Code (V of 1898), S.167---Remand---Intent and import---Grant or refusal of physical custody of an accused to police must be with judicious application of independent mind.

Makhdoom Zafar Iqbal Shah for Petitioner.

James Joseph for Respondents Nos.2 and 3.

Date of hearing: 26th January, 2009.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 713 #

2009 P Cr. L J 713

[Lahore]

Before Kazim Ali Malik, J

Lt.-Col. GHULAM IDREES----Petitioner

Versus

JUDICIAL MAGISTRATE 1ST CLASS, POLICE STATION RAWAT, DISTRICT RAWALPINDI and 2 others----Respondents

Writ Petition No.3107 of 2006, heard on 28th January, 2009.

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

----Ss. 420/468/471---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of proceedings---Allegation against accused was that he, on behalf of his mother in law, had executed an agreement to sell her agricultural land in favour of complainant and received Rs.40,00,000 as earnest money and also got entered a mutation in her name, who later on was not found to be the owner of the said land and that the accused through fraud and misrepresentation had deprived the complainant of the above said amount---Complainant had produced photo copies of the agreement to sell and the mutation in question before the Investigating Officer---Accused joined the investigation and dismissed the allegation with the plea that the so-called vendees and the complainant had forged and fabricated his signatures on the said agreement and mutation---Accused being a serving Military Officer, Military Intelligence on the report of the complainant, got compared the disputed signatures on the questioned documents with admitted ones, which were found different from each other---On conclusion of investigation Investigating Officer recommended cancellation of case laying negative final report before the Magistrate, who disagreeing with police investigation had taken cognizance of the offence against the accused---Validity---Mere producing photo copies of the agreement to sell and the mutation before the investigating agency or the Court was not enough to make the same a part of record, as it would require authentication of the signatures of the executant or proof of their genuineness---Unless the agreement in question was proved in terms of Art.78 of the Qanun-e-Shahadat, 1984, it could not be read in evidence and should have been excluded from consideration by the Magistrate---Magistrate had also ignored and discarded the negative report of the Handwriting Expert, but had failed to have recourse to the procedure laid down by Art.84 of the Qanun-e-Shahadat, 1984 and did not discharge the duty cast on him by law---Comparison of the admitted signatures of the accused on the mutation and his National Identity Card with the disputed signatures on the photo copies of the agreement to sell and the mutation in the open Court in presence of both the parties with naked eye, had revealed that some one had unsuccessfully attempted to forge signatures of the accused on the mutation and the agreement---No similarity, whatsoever, existed between the disputed and admitted signatures, which were significantly different in form and design---Complainant party appeared to have won the favour of the Patwari who had entered the mutation against the entries of record of rights---Accused. thus, was prosecuted on the charge of forgery and cheating by those who had forged his signatures on the questioned documents and he was forced to stand in the dock for an offence which he had not committed---Impugned order of Magistrate was consequently set aside being arbitrary, perverse, illegal, without lawful authority and against the record and the proceedings initiated against the accused were quashed being abuse of process of the Court---Constitutional petition was accepted accordingly.?

Falak Sher and another v. State PLD 1967 SC 425 ref.

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

----S. 190(1)(b)---Cognizance of offences by Magistrates---Scope---Negative report made by Police Officer---Action of the Trial Court taking cognizance of an offence on a negative report by the Investigating Officer is covered by clause (b) of S.190(1) of the Criminal Procedure Code, 1898.?

Falak Sher and another v. State PLD 1967 SC 425 ref.

Malik Waheed Anjum for Petitioner.

Raja Imran Aziz.

Haider Mahmood Mirza for Respondent No.4.

Muhammad Fayyaz, S.-I.

Date of hearing: 28th January, 2009.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 720 #

2009 P Cr. L J 720

[Lahore]

Before Syed Shabbar Raza Rizvi, J

Syed KHURRAM GILLANI----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.12745/B of 2008, decided on 14th January, 2009.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.489-F---Pre-arrest bail, refusal of---Cheque of Rs.4,00,000 given by accused to the complainant had been dishonoured by the Bank---Accused had filed three applications for pre-arrest bail before Sessions Court, two of which had been dismissed for non-prosecution---In his third application accused had suppressed the fact of dismissal of his earlier two bail applications---Accused was found guilty in police investigation---Earlier bail application had also been dismissed by High Court for non-prosecution---While the order was being recorded by High Court in the present bail application, accused had slipped out of the Court in total disregard to the Court---Extraordinary concession from the Court could only be allowed in extraordinary circumstances, e.g., where mala fides or ulterior motive seemed apparent on part of the complainant or police, which was not the case in the instant bail application---On the contrary conduct of accused was loathsome as stated above---Counsel for the accused had also failed to take into account his obligations towards the Court---Bail application was dismissed in circumstances.

Petitioner in person.

Asif Mehmood Cheema, Dy. P.-G. with Arif, A.S.-I. for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 724 #

2009 P Cr. L J 724

[Lahore]

Before Zubda-tul-Hussain, J

IJAZ----Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and others----Respondents

Writ Petition No.1988 of 2009, decided on 17th February, 2009.

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

----S. 22-A---Penal Code (XLV of 1860), S.365---Police Order (22 of 2002), Arts.18(6) & 35---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application for registration of criminal case---Jurisdiction of Justice of Peace---Scope---When an application was submitted to the Ex-Officio Justice of Peace under S.22-A, Cr.P.C. for direction against the non-registration of a case by the police, he was not supposed to enter into any deeper controversy nor to embark upon any inquiry for the determination of the veracity of the representation placed before him---Only jurisdiction which could be exercised by him in that behalf, was to examine whether the information disclosed by the applicant did or did not constitute cognizable offence.

Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539 rel.

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

----S. 22-A---Police Order (22 of 2002), Arts.18(6) & 35---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application for registration of criminal case to Justice of Peace---Contention that the alleged offence having been committed during the course of investigation of a case already registered with the police, the excess of the police officials, if any, was to be remedied under Art.18(6) or Art.35 of the Police Order, 2002 was repelled as the alleged offence constituted an independent criminal cause for registration of case---Principles.

Aman Ullah Khan for Petitioner.

Nazir Ahmed Chaudhry for Respondents.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 729 #

2009 P Cr. L J 729

[Lahore]

Before Hasnat Ahmad Khan, J

ASIF KHAN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.12148/B of 2008, decided on 9th January, 2009.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss.371-A & 371-B---Pre-arrest bail, confirmation of---Further inquiry---Accused was not apprehended at the time of alleged raid---Allegation of sidling of accused from the cafe in the face of a heavy contingent of the police required further inquiry---Police Officer had failed to refer to any evidence to show that the dancing girls were purchased, sold or hired by accused for the purpose of prostitution or for any unlawful or immoral purpose---Question of applicability of Ss.371-A & 371-B, P.P.C. to the facts and circumstance of the case, also required further probe in terms of S.497(2), Cr.P.C., in circumstances---Co-accused who were apprehended at the spot, had already been allowed bail by the Trial. Court---Nothing being to be recovered from accused, no useful purpose would be served by handing over his physical custody to the police on any technical ground, because after his arrest he would be allowed a bail on the ground that similarly placed other accused were already on bail---Ad interim pre-arrest bail granted to accused, was confirmed in circumstances.

Zahid Hussain and others v. The State 2008 MLD 722; Faiz Ullah v. The State 2008 PCr.LJ 693; Alam Chand alias Aloomal and 2 others v. Jamil Ahmad and another 2008 SCMR 980 and Muhammad Ramzan v. Zafar Ullah and another 1986 SCMR 1380 rel.

Ahmed Awais for Petitioner.

Mian Asmatullah, Dy. P.-G. with Ahmad Ali S.-I. for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 736 #

2009 P Cr. L J 736

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD KHAWAR BASHIR----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.12350/B of 2008, decided on 28th January, 2009.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), S.496-B---Pre-arrest bail, confirmation of---Further inquiry---Case was of two versions---Accused had claimed that alleged abductee had married him voluntarily vide registered Nikahnama, which was contracted before the lodging of the F.I.R.---Complainant had claimed that accused had abducted a married lady whose Nikah had already been solemnized with an other person---Said other person did not opt to lodge the F.I.R. regarding the abduction of his wife/alleged abductee---Nikahnama relied upon by accused was duly thumb-marked and signed by alleged abductee and at one stage she had claimed that she did not sign or thumb-mark the same---Alleged abductee had stated that she was forced by accused to sign certain documents---Alleged abductee appeared before Special Magistrate and got recorded her statement under S.164, Cr.P.C., but after joining her parents, she claimed that said statement was procured by accused under pressure---Such statement of alleged abductee had revealed that it was recorded by the Magistrate after due compliance of relevant provisions of law---Presumption of correctness was attached to the judicial proceedings---On at least two occasions, she owned her marriage before High Court as well as the Magistrate and she had filed a suit for jactitation of marriage before a Family Court---Court had to decide the question of genuineness or otherwise of Nikahnama relied upon by accused---Alleged abductee being in the custody of the complainant, physical custody of accused was not required by Investigator for effecting recovery of the alleged abductee---Allegation regarding the theft of the golden ornaments and net cash, also required further inquiry---Case of further inquiry having been made out in favour of accused within the purview of S.497(2), Cr.P.C., accused had become entitled to bail as a matter of right---Besides, in the peculiar circumstances of the case when the alleged abductee had been changing her stance from time to time, dismissal of certain pre-arrest bail applications filed by accused due to his non-appearance, would not disentitle him to get concession of pre-arrest bail, especially when law of bail was not a static law---Ad interim pre-arrest bail already allowed to accused, was confirmed in circumstances.

Muhammad Azam v. Muhammad Iqbal and others PLD 1985 SC 95; Meeran Bux v. The State and another PLD 1989 SC 347; Muhammad Ismail v. Ghaus Bux 1990 PCr.LJ 2013 and Aftab Gul v. The State 1989 PCr.LJ 1599 rel.

Hafiz Abdul Rehman Ansari for Petitioner.

Shahid Mehmood Khan D.P.-G. with Khadim S.-I. for the State.

Zafar Iqbal Chohan for the Complainant.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 744 #

2009 P Cr. L J 744

[Lahore]

Before Khurshid Anwar Bhinder, J

NADEEM alias PUPU----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1937-B of 2009, decided on 2nd March, 2009.

Criminal Procedure Code (V of 1898)---

---Ss. 497 & 105---Penal Code (XLV of 1860), S.371-A/371-B---Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.22---Constitution of Pakistan (1973), Art.14---Bail, grant of---Story narrated in the F.I.R. seemed illogical, irrational and implausible, as nobody could possibly run a brothel house in a thickly-populated residential area---Police officials had not obtained search warrants for raiding the residential house and committed a glaring illegality in not following the mandatory provisions of law under S.105, Cr.P.C. and Art.22 of the Prohibition (Enforcement of Hadd) Order, 1979, and thus, violated Art.14 of the Constitution, which guaranteed privacy of the house---Islam had also attached great sanctity to residential house and prohibited its violation in any manner whatsoever---Even medical examination of the apprehended couple was not conducted to know the commission of Zina---Offences aimed against the accused did not seem to have been made out against him and his case needed further probe into his guilt---Accused was admitted to bail in circumstances.

Maqbool Hussain Sheikh for Petitioner.

Fayyaz Ahmad, D.P.-G. for the State with Muhammad Ashraf S.-I.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 751 #

2009 P Cr. L J 751

[Lahore]

Before Kazim Ali Malik, J

NAZIMA SHAHZADI and another----Petitioners

Versus

S.H.O. POLICE STATION PINDI GHEE DISTRICT ATTOCK and 4 others----Respondents

Writ Petition No.357 of 2008, heard on 9th February, 2009.

(a) Islamic Law---

----Marriage---Validity, determination of---Forum---Police station or Criminal Court are not the competent forums for resolution of the matrimonial dispute relating to marriage of the parties.

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

----S. 378---Theft---Accused, daughter of complainant, allegedly removed gold ornaments and cash from the house in joint occupation of its inmates including herself---Accused could not be held responsible and liable for the charge of theft in circumstances.

----Ss. 365-B & 376---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of proceedings---Female accused petitioner had actually eloped with her co-petitioner and she had not been taken away by him in the manner as alleged by her father in the F.I.R.---Investigating Officer had challaned both the accused on the charge of abduction---Validity---Where there was no taking away of a woman, no offence of her abduction was made out or committed---Prosecution case set up in the final report under S.173, Cr.P.C. was that female accused had, of her own free-will, gone away with her co-accused to marry him, and therefore no question of their trial on the charge of abduction under S.365-B, P.P.C. could arise---Will and consent of the alleged abductee had, in fact, determined the fate of the charge of abduction, but the investigator and District Public Prosecutor had attached importance to the Will of her father in utter disregard of the provisions of S.365-13, P.P.C. as well as of Ss.375 & 376, P.P.C. on the charge of rape---No offence whatsoever was made out against the accused persons--Accused had faced the agony of investigation for the offence not committed by them---No doubt subject of investigation fell within the exclusive domain of police, yet High Court, in exercise of its constitutional jurisdiction and inherent powers, was required to keep the public functionaries within their allotted sphere---Police could not be allowed to prosecute the accused for the offences not committed by them---Investigation conducted by the investigating agency and the proceedings so far conducted by the Court on submission of challan were illegal, further continuation whereof would amount to abuse of process of the Court---Said proceedings were consequently quashed being illegal, without jurisdiction and nullity in the eyes of law.

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

----Art. 199---Criminal Procedure Code (V of 1898), Ss.561-A & 156---Constitutional and inherent jurisdiction of High Court---Scope---Investigation in cognizable offences---No doubt, the subject of investigation of criminal cases comes within the exclusive domain of police, yet High Court, in exercise of its constitutional jurisdiction and inherent powers, is required to keep the public functionaries within their allotted sphere---Police cannot and should not be allowed to prosecute the accused for the offences which they did not commit.

Raja Muhammad Tariq Khan for Petitioner.

Syed Husnain Kazmi, A.A.-G. with Ch. Zulfiqar S.P. (Investigation), Muhammad Shafiq S.H.O. and Rab Nawaz Sub-Inspector/Investigator for Respondents Nos.1 to 3.

Malik Waheed Anjum for Respondent No.4.

Date of hearing: 9th February, 2009.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 769 #

2009 P Cr. L J 769

[Lahore]

Before Hasnat Ahmad Khan and Zubda-tul-Hussain, JJ

QASIM ALI and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.548, 727, Criminal Revision No.478 and Murder Reference No.261 of 2003, heard on 19th January, 2009.

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

----S. 302(b)/34---Appreciation of evidence---Lodging of F.I.R. by the complainant with reasonable promptitude had established his presence at the scene of occurrence---Ocular testimony could not be discarded simply on the ground of having been furnished by interested witnesses, when the same was found to be consistent, straightforward, trustworthy and supported by undisputed motive behind the occurrence and medical evidence on all material points including the duration, nature and the seat of injury received by the deceased---Deceased had been killed in a busy place in daylight---Complainant, real brother of the deceased, could not let off the real culprit and implicate an innocent person in his place---Defence plea, therefore, was discarded---Unexplained long abscondence of accused for a period of more than 5-1/2 years, had further corroborated the ocular evidence---Accused had acted like a desperado in a calculated manner and gunned down the deceased from a close distance---Conviction and sentence of death of accused were upheld in circumstances.

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

----S. 302(b)/34---Appreciation of evidence---Site plan---Nature---Site plan is never considered to be a substantive piece of evidence.

----S. 302(b)/34---Appreciation of evidence---Interested witnesses---Credibility---Evidence of interested eye-witnesses can only be discarded if the same is not found in consonance with the attending circumstances of the case---If, however, the evidence of interested witnesses is found to be straightforward, consistent, trustworthy and corroborative to each other, the same can be validly relied upon for maintaining the conviction.

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

----S. 302(b)/34---Criminal Procedure Code (V of 1898), S.156---Investigation---Police opinion---Opinion of police is neither admissible in evidence, nor binding on the Courts.

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

----S. 302(b)/34---Appreciation of evidence---Benefit of doubt---Nobody had appeared on behalf of accused---lf during examination of case of co-accused, accused was found entitled to any relief, the same could not be withheld---No overt act was attributed to accused in the occurrence---Although according to complainant accused was armed with a carbine, yet he did not use the same even for ineffective firing---Role of raising of a proverbial "Lalkara" was not attributed to him as well---Prosecution evidence regarding the presence of accused at the time and place of occurrence or sharing common intention with co-accused, therefore, could not be relied upon for maintaining his conviction---Accused was given benefit of doubt and acquitted in circumstances.

Kh. Sultan Ahmed for Appellants.

Ch. Abdul Razzaq, D.P.-G. for the State.

Sardar Tariq Bashir Dogar for the Complainant.

Date of hearing: 19th January, 2009.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 781 #

2009 P Cr. L J 781

[Lahore]

Before Maulvi Anwarul Haq, J

THE STATE----Petitioner

Versus

Dr. MAQSOOD HUSSAIN----Respondent

Criminal Revision No.444 and Criminal Miscellaneous No.1331/M of 2008, heard on 14th January, 2009.

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

----S. 7---Criminal Procedure Code (V of 1898), Ss.439, 561-A & 200---Quashing of proceedings---Trial Court kept on adjourning the complaint without assigning any reason for many dates and did not record the statement of the complainant at once in violation of the mandatory provisions of S.200, Cr.P.C.---Complainant even was not examined on oath as required by the said provision of law---Entire complaint as well as the statement of the complainant did not disclose imputation of the offence of Qazf to any of the accused summoned by the Trial Court---Trial Court had summoned some of the accused out of 36 persons named in the complaint, without giving any reason for making the distinction in their cases and picking them up---Impugned order itself revealed to have been passed without examination of the file and application of mind, by the Court---Impugned order was illegal, incorrect and improper and all the proceedings conducted in pursuance thereof were irregular and the same were quashed in circumstances.

Qari Ghulam Mustafa v. Muhammad Yunus and others 1996 MLD 604 ref.

Tahir Munir Malik, Addl. A.-G. Punjab for the State.

Ch. Tanvir Ahmad Hanjra for Respondents Nos.2 and 3.

Kh. Saeed Ahmad on behalf of Naeem Sehgal for Respondent No.4.

Mehmood A. Sheikh for Respondent No.8.

Irfan Aizad on behalf of Ibrar Majal for Respondent No.11.

Ch. Ali Muhammad for Respondent No.12.

Aftab Ahmad Bajwa for Respondent No.13.

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

Saeed Ahmad, S.-I., and Zahoor Ahmad, A.S.-I with records.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 788 #

2009 P Cr. L J 788

[Lahore]

Before Hasnat Ahmad Khan, J

SHER MUHAMMAD---Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.11618/B of 2008, decided on 4th February, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 148, 149 & 34---Bail, grant of---Accused was 80-years old and according to the opinion of the Medical Board, accused had been found to be incapacitated---No finding of the Medical Board was on record to the effect that there was a danger of life to accused, but old age itself would bring infirmity with it---With age of 80 years and such a. poor physique accused needed a care and treatment of his choice---Accused was not the main culprit of the offence---Considering the old age coupled with his ailment, accused was entitled to have benefit of first proviso to subsection (1) of S.497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Mawasi Khan v. The State 1969 SCMR 289; Abdul Jabbar and another v. The State 1977 SCMR 50; Abdul Shakoor v. The State and 6 others 1982 SCMR 970; Sakhi Muhammad v. The State 1973 PCr.LJ. 397; Khanu and others v. The State 1980 PCr.LJ 316; Budha Manais and another v. The State 1984 PCr.LJ 424; Khushi Muhammad and another v. State PLJ 1999 Cr.C. Lahore 262 and Farid Ahmad Bhatti v. The State 1999 PCr.LJ 1237 ref.

Ch. Salamat Ali Haidary for Petitioner.

Shahid Mehmood Khan, Dy. P.-G. with Tariq, A.S.-I. for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 791 #

2009 P Cr. L J 791

[Lahore]

Before Syed Shabbar Raza Rizvi, J

ABDUL RASHID and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.12582/B of 2008, decided on 28th January, 2009.

Criminal procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.419, 420, 468, 471---Pre-arrest bail, confirmation of---According to Investigating Officer no other case of similar nature was against accused persons and investigation in the case had been conducted fairly and honestly---Main focus of F.I.R. was at co-accused, who seemingly took advantage of complainant's absence from the country and sold his property by forging documents in collusion with some revenue officials---Was not clear whether role played by accused persons was intentional, mala fide or they had just been exploited by said co-accused in preparing of the fake documents---Role of accused persons being doubtful, giving benefit of doubt to them, particularly when the Investigating Officer himself had not come out with any finding or incriminating evidence against accused persons, it was difficult to believe whether animus/criminal intention, existed in the actus reus attributed to accused persons---Interim bail already granted to accused persons, was confirmed.

Azam Nazeer Tarrar for Petitioners.

Umar Bin Akbar for the Complainant.

Asif Mehmood Cheema, Dy. P.-G. with Gulzar Ahmad S.-I. for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 795 #

2009 P Cr. L J 795

[Lahore]

Before Ch. Mahmood Akhtar Khan, J

IMRAN MASIH----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.200/B of 2009, decided on 9th March, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4---Bail, grant of---No doubt allegedly 60 bottles of liquor were recovered from the possession of accused but, specimen for determination of nature of contents were obtained out of two bottles---No evidence with regard to the offence under Art.4 of the Prohibition (Enforcement of Hadd) Order, 1979, was available---Accused was previously non-convict and his detention behind the bars was no more required for any useful purpose for the decision of the case---Accused was admitted to bail, in circumstances.

Tariq Mehmood Butt for Petitioner.

Ch. Mubarak Hussain D.P.-G. and Noor A.S.-I. for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 805 #

2009 P Cr. L J 805

[Lahore]

Before Zubda-tul-Hussain, J

SAMAN IMTIAZ----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.7751/B of 2008, decided on 10th October, 2008.

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

----Ss. 497/498---Bail---Offence not hit by prohibitory clause of S.497, Cr.P.C.---Principle---Grant of bail, no doubt, is a rule and refusal of bail is an exception in cases not covered by the prohibitory clause of S.497(1), Cr.P.C., yet bona fides or mala fides of the parties to a litigation are never irrelevant---Mala fides vitiate even the most sacred transaction.

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

----S. 497---Penal Code (XLV of 1860), S.489-F---Bail, refusal of---Mala fides having injured not only the valuable rights of a party but also having caused severe mental and physchological agony to the affected persons in addition to any financial loss, had to be given due consideration---Grant of bail on the mere ground of absence of prohibition of S.497(1), Cr.P.C. in the circumstances showing gravity of the matter not only for an individual but also spoiling the economic and social life of his whole family, might tend to perpetuate the commission of similar offences---Receipt of valuable articles supplemented by dishonest issuance of unholy cheques would make the offence of a grievous nature---Grant of bail being a discretionary concession would of course not be warranted in such a situation---Complainant had given the necessary explanation of six days delay in lodging the F.I.R.---Accused could get the desired or proposed medical treatment from an outside hospital without being released on bail---Bail was declined to accused in circumstances.

Waseem Bari v. The State 2008 YLR 760 and Muhammad Tariq Javed v. The State 2008 YLR 947 ref.

M. Baleegh-uz-Zaman Chaudhary for Petitioner.

Miss. Khalida Parween for the Complainant.

Mian Ismat Ullah, Dy. P.-G. along with Ashraf, A.S.-I. for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 816 #

2009 P Cr. L J 816

[Lahore]

Before Rana Zahid Mahmood, J

ASIF IQBAL----Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Home Secretary and another----Respondents

Writ Petition No.1142 of 2009, decided on 30th January, 2009.

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

----S. 3(1)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Preventive detention order, legality of---Registration of several criminal cases against the accused was not a sufficient basis to justify taking of action against him for his arrest and preventive detention for a period of thirty days--Till the disposal of the representation made by accused, his detention period was likely to be served out by him making the representation infructuous---Material placed before the Court could in no way be termed to be sufficient for passing the impugned order---District Coordination Officer had taken action against the accused on invalid and unlawful considerations outside the pale of his lawful authority---Approval of such type of actions by the Constitutional Courts would expose a sizeable number of population of the city to arbitrary, fanciful and whimsical exercise of authority by the public functionaries---Impugned order of preventive detention was consequently declared to be without lawful authority and set aside accordingly.

Sheikh Sakhawat Ali for Petitioner.

Ch. Muhammad Suleman, Addl. A.-G. along with Iqbal Hussain, Assistant Home Department, Punjab, Lahore and Abdul Rauf Qureshi, Reader to. D.C.O., Lahore for Respondents.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 830 #

2009 P Cr. L J 830

[Lahore]

Before Zafar Iqbal Chaudhry, J

ASHIQ ALI----Petitioner

Versus

DEPUTY INSPECTOR-GENERAL OF POLICE, PUNJAB, LAHORE and 4 others----Respondents

Writ Petitions Nos.10587, 10784, 10852 and 10855 of 2008, heard on 12th December, 2008.

Police Order (22 of 2002)---

----Arts. 155-C, 156, 155(2), 171 & 172---Criminal Procedure Code (V of 1898), S.156(2)---Constitution of Pakistan (1973), Art.199---Constitutional petitions---Quashing of F.I.Rs.---During pendency of a murder case in Sessions Court, D.S.P. (Legal) on some query on the administration side gave an opinion that Police Officers (petitioners) had not conducted investigation in the said' case honestly, whereupon the impugned F.I.Rs. had been registered against them---D.S.P. (legal) could not produce in High Court any material on which his opinion was based, nor he was sure as to who had sought his opinion---D.S.P. under Art.155(2) of the Police Order, 2002, was not authorized to recommend for registration of the cases against the accused petitioners---Acts of Police Officers done in good faith had been protected under Arts.171 & 172 of the Police Order, 2002---Parent law of S.156(2), Cr.P.C. had also barred to call in question investigation conducted by Police Officer, in subsequent proceedings, on the ground of his being incompetent to do the same---Prosecution had not challenged the competency of the accused Police Officers to investigate the case---Police opinion was not binding on the Courts---Aggrieved party had the right to move for reinvestigation---Police had not collected any evidence regarding dishonest investigation conducted by the accused---F.I.Rs. had been registered only on the opinion of the D.S.P. (Legal) who had no authority in this regard when the matter was already sub-judice before the Court, which was fully empowered to recommend to higher authorities in police hierarchy for any action against the Investigating Officers on finding any lapse on their part during the trial---One F.I.R. with similar allegation registered against a Police Officer had already been cancelled after investigation and the cases against the present accused had no distinct features---Impugned F.I.Rs. were based on malice and did not constitute any offence---Further proceedings, therefore, would be sheer abuse of process of law---F.I.Rs. were quashed accordingly.

1997 PCr.LJ 974; 1997 PCr.LJ 1503; 1994 PCr.LJ 2391 and 2008 SCMR 76 ref.

Shehram Sarwar Ch. and Nawab Ali Mayo for Petitioner (in Writ Petition No.10587 of 2008).

Khalid Mian for Petitioners (in Writ Petitions Nos.10784, 10852 and 10855 of 2008).

Ch. M. Suleman, Addl. A.-G. and Mian Ismat Ullah, D.P.-G. for the State with Nasir Ali Kalyar, D.S.P. (Legal) and M. Akram, S.-I.

Date of hearing: 12th December, 2008.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 840 #

2009 P Cr. L J 840

[Lahore]

Before Tariq Shamim, J

Malik KHALID HUSSAIN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.292 of 2006, heard on 3rd February, 2009.

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

----S. 9(c)---Appreciation of evidence---Recovery witnesses were credible and consistent on all material aspects of the case without any material discrepancy and improvement---Police had no ill-will or previous enmity with the accused and could not be conceived to have gone to the extent of planting a huge quantity of narcotics on him just for his false implication--Public was generally reluctant to become witnesses in such-like cases out of fear of reprisals from the accused side---In any case, police witnesses were as good witnesses as any other public witness---Incompetency of a Police Officer to search and arrest the accused and conduct investigation in the case, was only an irregularity and. not an illegality vitiating the entire process---Positive report of Chemical Examiner had supported the recovery witnesses, which even otherwise had not been questioned by the defence despite having been dull put to the accused at the trial---Defence plea of false implication had not been substantiated by accused through any evidence---Trial Court had appreciated the evidence in its true perspective---Conviction and sentence of accused were upheld in circumstances.

Nazar Muhammad v. The State 2002 PCr.LJ 440 ref.

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

----S. 21---Search and investigation---Non-observance of the provisions---Effect---Search, arrest of accused and investigation conducted in the case by an incompetent or unauthorized Police Officer may not stand vitiated, as S.156(2), Cr.P.C. protects his actions---No penalty having been provided by the Control of Narcotic Substances Act, 1997, for non-observance of the provisions of S.21 thereof, transforming an otherwise directory provision into a mandatory one, such a defect in the search, arrest and investigation would only be an irregularity and not an illegality vitiating the entire proceedings.

Nazar Muhammad v. The State 2002 PCr.LJ 440 ref.

Zafar Iqbal Chauhan for Appellant.

Ahsan Rasool Chattha, Dy. P.-G. for the State.

Date of hearing: 3rd February, 2009.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 847 #

2009 P Cr. L J 847

[Lahore]

Before Abdul Sattar Goraya, J

MUHAMMAD ASAD IQBAL----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.201/B of 2009, decided on 13th March, 2009.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.380/365-B/363---Pre-arrest bail, grant of---Alleged abductee at the relevant time being a member of the family, ex facie provisions of S.380 were not attracted in the case---Section 363, P.P.C. prima facie was not applicable to facts of the case, the minor girl aged 11 years allegedly taken away by the abductee along with her from the school, was not recovered from her custody and instead a local Zamindar of the area had produced her before the police---Notice had been issued in bail application while granting ad interim bail by High Court to the accused after hearing their counsel, therefore, at present stage after hearing the whole case High Court declined to send the accused back to Sessions Court for moving application for bail before arrest there---According to Nikah Nama both the accused were husband and wife and another Nikah Nama reported to be earlier in time was under scrutiny and so far police had not given any definite finding thereon---Ad interim pre-arrest bail already granted to accused was confirmed in circumstances.

Allah Yar v. The State 2008 PCr.LJ 1451; Shamrez Khan v. The State 1999 PCr.LJ 74 and Shabir Ahmad Wattoo v. the State 1983 PCr.LJ 2014 ref.

Mumtaz Hussain Bazmi for Petitioner.

Mirza Mukhtar Baig, D.P.-G. with Ahmad Hussain S.-I. for the State.

Sardar Nazar Hussain Aslam for the Complainant.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 853 #

2009 P Cr. L J 853

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

RAZIA BIBI alias KAINAT----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.3466/B of 2009, decided on 10th April, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/148/149---Bail, grant of---Further inquiry--Only evidence against accused was that of last seen, which had been disbelieved during the course of investigation against co-accused against whom the allegation was of taking the deceased to the house of accused, and they had been declared innocent by the Police---Such fact had made case of accused one of further inquiry---Investigation in the case having already been completed, accused could not be allowed to remain under incarceration for an indefinite period---Accused was a woman and under 'Fourth Proviso to S.497(1), Cr.P.C. brought through Ordinance No.XIII of 2006, woman accused would be released on bail, if she had been detained for continuous period of six months-- Charge had been framed and out of twelve prosecution witnesses only two formal witnesses had been examined---No delay was attributed to accused---Accused was in custody since 7-8-2008---Statutory period of six months had already elapsed---Case of accused also fell under the Fourth Proviso to S.497(1), Cr.P.C.---Accused was admitted to bail, in circumstances.

Rai Zameer-ul-Hassan for Petitioner.

Mian Ismatullah, Dy. P.-G., Punjab for the State with Muhammad Tufail S.-I.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 855 #

2009 P Cr. L J 855

[Lahore]

Before Khurshid Anwar Bhinder, J

NAZAR MUHAMMAD----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1646/B of 2009, decided on 18th March, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)-Penal Code (XLV of 1860), S.365-B---Bail, grant of---Further inquiry---Accused, no doubt was nominated in the F.I.R. with specific role, but High Court had to see as to whether the offence under which accused was liable to be tried, was made out or not as per facts and circumstances of the case---Story narrated in the F.I.R. seemed irrelevant, implausible and unbelievable for the reasons, that accused along with his accomplices had entered the house of the complainant for 'the purpose of abduction, seemed unnatural because none of accused persons was armed with any weapon---Was not possible that a person with the intention of commission of offence of abduction would go empty handed and that too in the house of the complainant, where there could be every possibility to face defiance by the complainant party---Other family members were also present at the place of occurrence; it was absolutely unbelievable that accused had gone to an extent of abducting the daughter of the complainant for the purpose of committing Zina-bil-Jabr with her, but spared her---Offence under S.365-B, P.P.C., in circumstances was not made out against accused because neither family members of the complainant had tried to apprehend accused persons nor they resisted---Case against accused being that of further inquiry, into his guilt, he was admitted to bail.

Liaquat Ali Malik for Petitioner.

Ghulam Qadir Bari, A.P.-G. with Arshad S.-I. for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 857 #

2009 P Cr. L J 857

[Lahore]

Before Ch. Mahmood Akhtar Khan and Mazhar Hussain Minhas, JJ

MUHAMMAD AZAM and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.664 and Murder Reference No.895 of 2002, heard on 18th March, 2009.

Penal Code (XLV of 1860)---

----S. 302/34---Appreciation of evidence---Motive had not been proved as no evidence was led with regard to such fact---No eye-witness had been mentioned in F.I.R.---No conviction could be made on statement of prosecution witness for the, reason that her name as witness had not been mentioned by the complainant in the F.I.R., which was registered with a delay of two days without any plausible explanation---Even presence of said witness or presence of other children had not been mentioned in the F.I.R. or shown in any proceeding conducted by Investigating Officer at the place of occurrence after registration of the case---Conviction could not be based on the sole testimony of a child witness---If Police did not record the statements of witnesses, immediately and delay was caused in recording the same, then a reasonable explanation was required to be furnished by the prosecution for such delay---Explanation furnished by the prosecution for such delay, was not confidence inspiring---Rope allegedly used in occurrence was not taken into custody from possession on pointation of accused persons---Said rope was not blood-stained---Statements of accused persons before prosecution witnesses, could not be termed as extra-judicial confession as no time, date and manner of commission of offence had been mentioned---Treatment of' the prosecution witnesses with accused persons after their confession before them, also indicated that said piece of evidence, was 'nowhere available, except in their imagination---No evidence was available with the prosecution to connect accused persons with the death of deceased---Impugned judgment was set aside and accused were acquitted from charge against them and they were released.

Sultan and another v. The State PLD 1965 (W.P.) Kar. 615 and Dr. Khalid Moin and others v. The State and others 2006 PCr.LJ 639 rel.

Ghufran Khurshid Imtiazi for Appellant.

Ch. Muhammad Tariq, A.P.-G. for the State.

Raja Ikram Amin Minhas for the Complainant.

Date of hearing: 18th March, 2009.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 864 #

2009 P Cr. L J 864

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

Haji TAJ DIN and another----Petitioners

Versus

Sh. MUJIB ULLAH and another----Respondents

Writ Petition No.4491 of 2009, heard on 19th March, 2009.

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

----Preamble & Ss.3/4---Constitution of Pakistan (1973), Art.199---Constitutional petition---Illegal dispossession---Scope, application and object of Illegal Dispossession Act, 2005---Complaint by complainant/ tenant against owners of the premises in dispute under Ss.3/4 of Illegal Dispossession Act, 2005 was admitted and notice was issued to the owners---Competency of complaint was challenged on the ground that complaint was incompetent in presence of pendency of civil suit tiled by the owners/petitioners and the contempt petition and the F.I.R. registered at the instance of tenant/respondent---Validity---Several remedies could be availed under the civil or criminal law at the same time---Person, who had been dispossessed, could have recourse to any remedy, such as, filing of civil suit under S.9 of Specific Relief Act, 1877, which was summary procedure; filing of civil suit for possession under Civil Procedure Code; criminal proceedings under Ss.145 & 146, Cr.P.C.; initiation of criminal prosecution under S.448, P.P.C.---Illegal Dispossession Act, 2005 had been specifically enacted to discover the land grabbers and to protect right of owner and lawful occupant against illegal and unauthorised occupation---Under said Act, speedy, effective and easy relief had been provided to the owner as well as the lawful occupant of the property---If the law had provided more than one remedy to the aggrieved person then it was his choice to avail any one of those or all other remedies---No bar or restriction could be placed upon the complainant or the aggrieved person to approach different forums at the same time to avail respective remedies---Contention of the owners/petitioners regarding initiation of proceedings under Illegal Dispossession Act, 2005 during pendency of contempt proceedings in a civil Court or criminal prosecution, or ejectment proceedings before the Rent Controller, would not have any force---Each forum could proceed at the same time accordingly, purely on merits of their own facts---Illegal Dispossession Act, 2005 would apply to all the cases of illegal occupation without any distinction---Mere filing of civil suit or contempt proceedings subsequent to the "act of dispossession" would not have much significance or consequence to protect unauthorized occupation.

Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah. 231; Rahim Tahir v. Ahmad Khan and 2 others PLD 2007 SC 423; Malik Muhammad Naeem Awan v. Malik Aleem Majid and 5 others PLD 2008 Lah. 358 and Iftikhar Ahmad v. Zulfiqar Ali and 3 others PLD 2008 Lah. 59 rel.

(b) Administration of justice---

----Proceedings of civil and criminal cases---Civil and criminal cases could proceed side by side---No bar was on the initiation of criminal proceedings in presence of civil suit, however, normally criminal proceedings were not postponed till decision of civil litigation, but where criminal liability depended upon the result of civil litigation, then in such situation, the Trial Court could stay its hands till decision of civil dispute---Proceedings relating to the "act of dispossession" pending before the Trial Court were altogether different and same could proceed, despite other proceedings pending in different forums, which could not be stopped or stayed.

Muhammad Shafi v. D.S.P. and others PLD 1992 Lah. 178; Sheikh Ahmad v. Sh. Muhammad Younas 1971 PCr.LJ 331; Rehmat Ullah v. Abdul Aziz 1974 PCr.LJ 54: Malik Muhammad Naeem Awan v. Malik Aleem Majid and 5 others PLD 2008 Lah. 358; Mrs. Azra Israr v. Inspector General of Police Punjab and others PLD 2003 Lah. 1; Muhammad Akbar v. The State PLD 1968 SC 281; A. Habib Ahmad v. M.K.A. Scott Christian and 5 others PLD 1992 SC 353 and Syed Muhammad Ahmad v. The State 1972 SCMR 85 and Khuda Bakhsh v. The State 1995 SCMR 1621 rel.

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

----Ss. 3/4---Constitution of Pakistan (1973), Art.199---Constitutional petition---Illegal dispossession---Complaint against---Petitioners/owners of property in dispute, had challenged the order passed by the Trial Court whereby complaint filed by complainant was admitted and notice was issued to petitioners---Order impugned herein was only of an interim nature and had been passed by the Trial Court after considering the material available on record---Contents of the complaint, summary of preliminary evidence and other documents/order of court filed by respondent, prima facie, indicated that sufficient reasons existed for the issuance of process to proceed with the trial---Petitioners would have the right to rebut the allegation even at' the time of framing of the charge under S.265-K, Cr.P.C. or 249-A, Cr.P.C. and they could avail said remedy when the occasion would arise---Courts are bound to exercise discretion while issuing the process to accused persons named in the complaint with great care and caution---No illegality or infirmity had been found in the impugned order calling for interference by the High Court---Petition was dismissed.

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

Kamran Babar for Petitioner.

Muhammad Yasin Bhatti for Respondent No. 1.

Date of hearing: 19th March, 2009.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 870 #

2009 P Cr. L J 870

[Lahore]

Before M.A. Zafar and Muhammad Ahsan Bhoon, JJ

GHULAM SHABBIR alias SHABBIR AHMED---Appellant

Versus

THE STATE----Respondent

Criminal Appeals No.24-J of 2004, 519 of 2003, Criminal Revision No.20 and Murder Reference No.151 of 2004, heard on 26th November, 2008.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Appreciation of evidence---None of the accused was either nominated in the F.I.R. or previously known to the complainant and other prosecution witnesses---No identification parade was held for identification of accused---Complainant was unable to tell as to how he had come to know about the names of accused afterwards---Admittedly one another person was also joined in investigation, of the case - Evidence on record had not disclosed any role having been attributed in the occurrence to one accused---Complainant had volunteered that other persons too had been visiting the police station, but he had never suspected them as accused persons in the case---Accused and deceased had no enmity with each other---Occurrence, according to the F.I.R. had taken place at the spur of the moment---Accused appeared to have been shown to the prosecution witnesses prior to their deposition in the Court, which had made the whole prosecution story doubtful---No report of Forensic Science Laboratory qua the matching of the recovered pistol with the crime-empties collected from the spot was available---Accused were not connected with the commission of offence beyond any shadow of doubt---Accused were acquitted in circumstances.

Syeda B.H. Shah for Appellant (in Criminal Appeal No.24-J of 2004).

Malik Asif Tauffique Awan for Appellant (in Criminal Appeal No.519 of 2003).

Ch. Muhammad Tariq, Addl. P.-G. for the Slate assisted by Malik Shahzad Ahmad for the Complainant.

Date of hearing: 26th November, 2008.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 884 #

2009 P Cr. L J 884

[Lahore]

Before Khurshid Anwar Bhinder, J

IRSHAD and others-Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.2032/B of 2009, decided on 1st April, 2009.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.365-B---Ad interim pre-arrest bail, confirmation of---Delay of four months in lodging of F.I.R. had not been plausibly explained---Such delay had made the case doubtful for the reason that it was practically not possible for a father of a girl to keep mum especially when his daughter had been abducted by certain individuals; and he would not instantly get the case registered against them; and it was also not possible that it took four months time for him to find out the names of the abductors---When the daughter was abducted, father or any of the members of the family would become restless and instantly would try to find out her whereabouts, but in the present case it had not been done so, rather F.I.R. was got registered after the delay of four months---Was also not possible that in those four months they did not know as to who had abducted their daughter---Said considerable delay in lodging of the F.I.R., in circumstances, cast serious doubt in one's mind regarding happening of the occurrence as well as role of accused---Investigating Officer present in the court had categorically stated that alleged abductee was not recovered from accused persons---Previous enmity being existing between one of the accused persons and the complainant, their false implication in the case could not be ruled out---Investigating Officer had also stated that he had not been able to finalize his investigation as the abductee was not recovered and until and unless she was recovered, he could not be able to give his final findings regarding the allegations levelled against accused persons---Possibility existed that main accused of the occurrence had taken daughter of the complainant along with him abroad; if that was so, then accused persons had absolutely no role in the abduction and entire story narrated in the F.I.R. was doubtful---Case being of further inquiry into the guilt of accused persons, ad interim pre-arrest bail already granted to accused persons, was confirmed.

Imran Ahmed for Petitioners.

Ch. Yasir Zulfiqar for the Complainant.

Ghulam Qadir Bari, A.P.-G. with M. Ashraf, S.-I. for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 889 #

2009 P Cr. L J 889

[Lahore]

Before Kazim Ali Malik, J

ASHFAQ alias SHAKOO----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.3460/B of 2009, decided on 16th April, 2009.

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

----S. 497---Penal Code (XLV of 1860), S.392---Bail, refusal of---Robbers who snatched the cell phone from the complainant were not known to him previously---S.H.O. adopted a novel procedure unwarranted in law while holding identification parade of accused person inside the Police Station---No provision of law existed which could authorize or allow the Investigator to hold identification parade of an unknown accused inside the Police Station during his detention in Police lock-up under his own supervision---S.H.O. under the law was required to get detained accused in judicial lock-up without wasting a single moment and without showing them to the complainant, so that they could be put to the test of identification parade inside the jail under the direct supervision of a Magistrate deputed by the Sessions Judge---S.H.O. had failed to discharge the duty cast on him by the law and destroyed the prosecution case at investigation stage and practically acquitted accused of the charge of robbery while sitting in the Police Station by holding their identification parade in the Police lock-up---Identification of accused by the complainant inside the Police lock-up was neither relevant nor admissible in evidence---S.H.O., who posed himself to be crime fighter and stickler for rule of law had played havoc with the system---Despite said state of affairs accused could not be awarded discretionary relief of bail because he won the favour of S.H.O. through back door by adopting some unholy devices---Bail application was dismissed, in circumstances.

(b) Administration of justice---

----Criminal trial---Investigation---No doubt, the subject of investigation would come within the exclusive domain of the Police/Investigating Agency, but the court of law could not allow the investigator to blindfold administration of criminal justice---System was standing on three pillars; i.e. investigation; prosecution; and trial---For smooth functioning of the system said three pillars should he appropriately balanced within their respective allotted sphere---In the light of the provisions contained in Chapter XIV of the Code of Criminal Procedure, the investigation consisted of spot inspection, ascertainment of facts and circumstances, apprehension of accused and collection of evidence---Prosecution means to bring on record material falling within the definition of evidence in support of the charge---Trial was judicial determination of the questions of guilt or innocence of the challaned accused.

----Supremacy of law---Supremacy of law could not be achieved without elimination of the police-whim-factor in the administration of criminal justice---Without unqualified allegiance to the rule of law whimsy, defective, poor and dishonest investigation tainted with mala fide, was not going to be of much help for improvement of the system---Without building checks on arbitrary exercise of powers by the Investigating Agency, casual or motivated attitude of the investigators adverse to the cause of prosecution could prove a festering sore for the whole system.

Malik Muhammad Arif Bara for Petitioner.

Muhammad Iqbal Chaudhry, Deputy Prosecutor-General with Muhammad Azam, A.S.-I. with record for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 908 #

2009 P Cr. L J 908

[Lahore]

Before Khurshid Anwar Bhinder, J

MUHAMMAD HUSSAIN and others----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.6609-B of 2008, decided on 27th October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.452/337-L(ii)/337-A(ii)/337-F(i)/337-A(i)/148/149---Pre-arrest bail, grant of---Accused were no doubt nominated in the F.I.R. with specific roles, but it was revealed from the medical evidence that both the parties suffered injuries which would mean that a free fight took place between the parties---Counsel for accused persons had also submitted medico-legal reports which had shown that two persons from accused's side had also suffered injuries---When cross-fight took place and both the parties suffered injuries, it was to be seen at the time of trial as to which one was the aggressor party-Only tentative assessment was to be made at bail stage---State Counsel as well as counsel for the complainant had not been able to prove the fact as to whether any pre-meditation had taken place and they had also not been able to establish that in what circumstances that fight took place---Some enmity appeared to be existing between the parties which had ultimately led to the cross-fight---Mala fides on the part of the complainant stood established as both the parties belonged to different factions and enmity existed between them---Ad interim pre-arrest bail already granted to accused persons, was confirmed, in circumstances.

Sardar Munir Ahmed Dogar v. The State PLD 2004 SC 822 ref.

Erum Sajjad Gull for Petitioners.

Shafqatullah Butt, D.P.-G. for the State with Muhammad Akram A.S.-I.

Arshad Ali Chauhan for the Complainant.

2009 P Cr. L J 934

[Lahore]

Before Muhammad Akram Qureshi, J

Hafiz MUHAMMAD IQBAL----Petitioner

Versus

THE STATE and another---Respondents

Writ Petition No.5181 of 2006, decided on 22nd January, 2009.

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

----S. 561-A---Constitution of Pakistan (1973), Art.199---Constitutional petition--Quashing of judicial proceedings---Conversion of constitutional petition into application under S.561-A, Cr.P.C.---As judicial proceedings could not he quashed by the High Court by exercising powers under Art. I99 of the Constitution, constitutional petition filed by accused was converted by High Court into application under S.561-A, Cr.P.C.

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

----Ss. 561-A, 4(h), 173 & 195()(c)----Penal Code (XLV of 1860), S.188---Quashing of proceedings---Application for---'Trial Court was not competent to take cognizance of the offence on a police report having been submitted by Sub-Inspector or S.H.O.---Section 4(h), Cr.P.C. specifically excluded the report of Police Officer from the domain of word "complaint'---Report submitted under S.173, Cr.P.C. could not be considered to be a complaint as provided by S.4(h), Cr.P.C.---Section 195, Cr.P.C., placed a specific embargo upon the Trial Court to take cognizance on the report of Police Officer, but on the complaint in writing of the concerned officer or some other public servant to whom he was subordinate---In the present case, declaration to prohibit the publication, supply and possession was issued by the Home Secretary, Government of Punjab, who was the only Authority to lodge complaint with the court of competent jurisdiction----Matter was reported to the Trial Court by a Police Officer, who was having no jurisdiction to do that---Cognizance taken by the Trial Court, in circumstances, was illegal and proceedings conducted by the court was an abuse of process of law---Proceedings pending before the Trial Court registered under S.188. P.P.C., were quashed.

Ata-ul-Manan for Petitioner.

Muhammad Qasim Khan, A.A.-G. along with Khaliq Ahmad D.S.P. (Legal) and Muhammad Arshad, Inspector.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 940 #

2009 P Cr. L J 940

[Lahore]

Before Zubda-tul-Hussain and Syed Shaheen Masud Rizvi, JJ

M. HASSA N----Appellant

Versus

GHULAM RASOOL---Respondent

Criminal Appeal No. 178 of 2007/BWP, heard on 23rd October, 2008.

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

----Ss. 302/324/148/149/109-Criminal Procedure Code (V of 1898), S.417(2)---Appeal against acquittal---Accused was charged with abetment and instigation of the alleged offence---Out of two witnesses of conspiracy only one was produced at the trial, who according to record had an established history of enmity with the accused having its origin in the civil and criminal litigation, which was an open reality and not a secret---Other witness of conspiracy having been given up, the statement of the witness examined by the prosecution had received no corroboration and in the wake of previous enmity his statement could not be believed against the accused---Trial Court had rightly discarded the said evidence and that having been done no material at all was available on record for conviction of accused, who had rightly been acquitted of the charge by extending the benefit of doubt---Appeal against acquittal of accused was dismissed accordingly.

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

----Ss. 302/324/148/149/109---Criminal Procedure Code (V of 1898), S.417(2)---Appeal against acquittal---Benefit of doubt---Accused had not caused any injury to the deceased---Allegation and ocular account that accused had given hatchet blows on the head of the prosecution witness was in conflict with medical evidence---Question whether the hatchet for such injuries used from wrong side was not clarified by prosecution and Trial Court, therefore, was justified to draw the presumption that the spirit of prosecution evidence was that the hatchet had been used from the right side---Benefit of doubt had been given to accused by "Trial Court on well-founded reasons---Appeal against acquittal was dismissed accordingly.

----Ss. 302/324/148/149/109-Criminal Procedure Code (V of 1898), S.417(2)---Appeal against acquittal---Accused had allegedly caused injuries with hatchet on the back of left hand of the deceased and the little finger of his right hand---Firstly, the said injuries were on the non-vital parts of the body and secondly, accused belonged to a place which was situated at a considerable long distance from the place of occurrence---Accused was related to co-accused and had no concern at all with the property in dispute of the parties---Allegation of causing aforesaid injuries to the deceased was an afterthought and an improvement aimed at covering the lacunas in the case- Recovery of hatchet from the accused by itself being not a substantial evidence, conviction thereon could not be validly recorded against him without any corroboration---Involvement of accused in the occurrence being doubtful, he had been rightly acquitted by Trial Court---Appeal was dismissed accordingly.

Ali Muhammad v. Bashir Ahmed and others 2003 SCMR 868 rel.

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

----Ss. 302/324/148/149/109-Evidence-Recovery-Recovery of weapon of offence by itself without any other corroborative evidence especially when the other cognate factors also do not support the point at issue, is not a substantial piece of evidence.

Ali Muhammad v. Bashir Ahmed and others 2003 SCMR 868 rel.

Mian Muhammad Tayyib Watoo for Appellant.

Nemo for Respondent.

Date of hearing: 23rd October, 2008.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 948 #

2009 P Cr. L J 948

[Lahore]

Before Khawaja Muhammad Sharif and M.A. Zafar, JJ

MUHAMMAD USMAN and 5 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.80 and 1494 of 2008, heard on 9th April, 2009.

Penal Code (XLV of 1860)---

----S. 216---West Pakistan Arms Ordinance (XX of 1965), S.13(b)---Explosive Substances Act (VI of 1908), 5.407---Anti-Terrorism Act (XXVII of 1997), Ss.21-J & 19(8-B)---Appreciation of evidence---Sentence, reduction in---Police party, to arrest a proclaimed offender, raided a house where said proclaimed offender along with accused persons was present and they were apprehended---Accused persons had themselves admitted that said proclaimed offender was their relative---So far as prior sanction as envisaged in S.7 of Explosive Substances Act, 1908 was concerned, same did not hold the field any more in view of subsection (8-B) of S.19 of Anti-Terrorism Act, 1997---Sealed parcel brought before Bomb Disposal Commander, contained two hand grenades with detonating assembly; it had fully been proved that hand grenades recovered from possession of one of accused persons was an explosive---Discrepancies in the statement of prosecution witnesses pointed out by the counsel for accused persons were trivial in nature and were not sufficient to believe that case against accused persons was of doubtful nature---Recovery of hand grenade was effected from underneath the pillow of cot of one of accused persons; it could not be said, in circumstances, that hand grenade was not recovered from the possession of accused as he. was found lying on a cot---Prosecution, in circumstances, had fully proved its case against accused persons to the hilt beyond any reasonable shadow of doubt---Conviction and sentences recorded by the Trial Court vide impugned judgment were maintained in toto---Sentences recorded against accused persons under S.216, P.P.C., S.21-J of Anti-Terrorism Act, 1997 and S.4 of Explosive Substances Act, 1908 were reduced from seven years to five years' R.I.

Mushtaq Ahmed v. The State PLD 1996 SC 574; Muhammad Parvaiz v. The State 2005 SCMR 1038; Muhammad Rafiq-ul-lslam v. The State 1998 PCr.LJ 1262 and Adam Khan v. The State PLD 2000 Pesh. 3 rel.

Tahir Qureshi for Appellant (in Criminal Appeal No.80 of 2008).

Khawaja Ijaz Feroz and Muhammad Tahir Butt for Appellant (in Criminal Appeal No.1494 of 2008).

Rana Bakhtiar Ali, D.P.-G. for the State.

Date of hearing: 9th April, 2009.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 962 #

2009 P Cr. L J 962

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

SHAN MUHAMMAD----Petitioner

Versus

THE STATE-Respondent

Criminal Revision No.228 of 2009, heard on 17th April, 2009.

Criminal Procedure Code (V of 1898)---

----Ss. 514 & 502---Penal Code (XLV of 1860), S.496-A---Forfeiture of surety bond--Accused for whom petitioner stood surety, having failed to appear before the court, the Trial Court forfeited the bail bonds of the petitioner and directed him to deposit surety amount in the Government Treasury---Validity---Petitioner had not been afforded any opportunity of producing accused before the court--Accused was arrested two days after issuance of notice to the petitioner and order forfeiting the bail bonds of the petitioner was passed after about 13 days of issuance of notice to the petitioner---No opportunity was afforded to the petitioner to produce accused before the court and petitioner had facilitated the arrest of accused by producing accused before the Police, but the Trial Court while passing impugned order of forfeiting the surety bonds had not taken into consideration such fact---After arrest of accused, he was granted bail and fresh bail bonds were furnished by another surety---Petitioner, in circumstances, stood absolved of his responsibility to produce accused in the court---Impugned order was set aside, in circumstances.

Ghulam Qadir Siyal v. The State 1997 PCr.LJ 554 rel.

Roy Muhammad Tufail Khan Kharal for Petitioner.

Ghulam Qadir Bari, A.F.-G. for the State.

Date of hearing: 17th April, 2009.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 974 #

2009 P Cr. L J 974

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MAQSOODA BIBI----Petitioner

Versus

ABDUL AZIZ and 4, others----Respondents

Criminal Miscellaneous No.687/BC of 2009, decided on 23rd April, 2009.

Criminal Procedure Code (V of 1898)---

----Ss. 497(5) & 498---Penal Code (XLV of 1860), Ss.337-A(i)(ii), 337-F(i), 354 & 34---Cancellation of bail before arrest---Consideration for grant of pre-arrest bail and post-arrest bail were entirely different---Grounds on which pre-arrest bail was confirmed, were not relevant for grant of pre-arrest bail, but those could be relevant or sufficient for post-arrest bail---Prima facie, the Trial Court had failed to appreciate the distinction of considerations in the present case---Power to grant pre-arrest bail was available in cases of exceptional nature and that power had to be exercised when pre-conditions laid down by the superior courts were satisfied---Pre-arrest bail could also be granted where falsity of involvement of accused was visible on the record---Trial Court in impugned order had itself recorded that recovery of weapon of offence was effected from accused---Trial Court also observed that offences against accused persons, were of bailable nature, except under S.337-A(ii), P.P.C.---Trial Court, in other words, did not believe false involvement of the accused persons---Trial Court did not even mention that accused persons were involved with mala fide and ulterior motive on the part of the complainant or the Police---Application for cancellation of hail was granted and impugned order passed by the Trial Court was set aside being unlawful.

1999 PCr.LJ 200; PLD 1983 SC 82; PLD 2003 Lah. 403 and 2000 PCr.LJ 1605 ref.

M. Iqbal for Petitioner.

Ch. Ansar Javed for Respondent.

Asif Mahmood Cheema, D.P.-G. with Majeed A.S.-I. for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 982 #

2009 P Cr. L J 982

[Lahore]

Before Abdul Shakoor Paracha and Syed Sajjad Hussain Shah, JJ

TALIB HUSSAIN----Petitioner

Versus

Mst. YASMIN ARA and another----Respondents

Criminal Miscellaneous Nos.367/BC and 314/BC of 2006, decided on 28th May, 2007.

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

----S. 497(1)(5)---Grant and cancellation of hail---Considerations---Considerations for grant of bail and considerations for cancellation of the bail were absolutely different---Once an accused was released on bail, his liberty could not be interfered with lightly---Once a bail was granted by a court of competent authority, then strong and exceptional grounds would be required for cancellation thereof.

Bashir Ahmed v. Mirza Muhammad Yaqoob and 10 others 1991 MLD 579 rel.

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

----S. 497(5)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/11---Bail, cancellation of---Male accused firstly contracted marriage with eldest daughter of the complainant, who was real sister of female accused and out of wedlock children were born to eldest daughter of the complainant---During subsisting of said marriage, male accused also contracted another marriage/Nikah with co-accused who was real sister of existing wife of male accused---From the contents of the F.I.R. and other material collected during the investigation, reasonable grounds existed to believe that both accused persons were guilty of the offence with which they were charged and no ground was of further inquiry into their guilt---Trial Court could not have released male accused on bail without reaching to the conclusion after perusing the material before it that no grounds existed to believe that accused was guilty of a non-bailable offence---In absence of said facts there was no occasion for the court to hold that case of accused was one of further inquiry---Petition filed by the petitioner/complainant for cancellation of bail was allowed and order granting bail was withdrawn.---Muhammad Nawaz v. The State PLD 2004 Lah. 365 dissented from.

Asma Bibi v. Superintendent of Police, Gujranwala and 8 others 2003 PCr.LJ 372; Akbar Ali v. Nazim Hussain and 2 others 2005 PCr.LJ 1816; Mst. Irfana Faiz and another v. The State and 2 others 2006 PCr.LJ 199 and Haji Gulu Khan v. Gul Daraz Khan and another 1995 SCMR 1765 ref.

Muhammad Nawaz v. The State PLD 2004 Lah. 365 dissented from.

----S. 497(5)---Offence of Zina (Enforcement of Hudood) Ordinance (V of 1979), Ss.10/11---Cancellation of bail, petition for---Female co-accused was also not entitled for the bail as she knowingly entered into second marriage with male accused during existence of first marriage of male accused with her real sister; however, according to Laboratory report pregnancy test of female co-accused was positive and she was stated to be pregnant by four months---Said co-accused though was not entitled for grant of bail, but due to her pregnancy, pre-arrest bail granted to her could not he cancelled---Petition for cancellation of hail filed by the complainant to the extent of female co-accused was dismissed.

Dr. Muhammad Shoaib Suddle, D.I.-G. Police Karachi and others v. The State 1997 SCMR 1234; Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82; Zia-ul-Ilassan v. The State PLD 1984 SC 192 and Mst. Nusrat v. The State 1996 SCMR 973 ref.

M. Faisal Malik, Malik Shehzad Ahmed and Malik M. Siddique Awan for Petitioner.

Razzaq A. Mirza for Respondents.

Ch. M. Tariq, Addl. P.-G. along with Abdul Rashid Khan, D.P.-G. and Shabbir Sub-Inspector for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 997 #

2009 P Cr. L J 997

[Lahore]

Before Ch. Mehmood Akhtar Khan, J

MUHAMMAD IMRAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.42 of 2008, heard on 11th March, 2009.

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

----Art. 22---Identification parade---Principle---Evidence of identification parade would lose its efficacy and cannot be relied upon, if prosecution witnesses would not describe the role played by each of the accused at the time of commission of the offence---Same would be the position, if prosecution witnesses, while making statements in the Court, would also not attribute any individual role to the accused played by them during the occurrence.

Ghulam Rasool and 3 others v. The State 1988 SCMR 557 and Siraj-ul-Haq and another v. The State 2008 SCMR 302 ref.

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

----Ss. 302(b), 170, 171, 457 & 148---Appreciation of evidence--No motive was ascribed to the accused for commission of the crime---Prosecution had not examined any witness mentioned in the F.I.R. at the trial---Alleged eye-witnesses, admittedly inmates of the house of occurrence, had appeared before the Investigating Officer for the first time after four months of the incident without any explanation and they in the test identification parade had not described any individual role of accused during the occurrence---No weapon of offence was recovered from the accused-Effect-Nobody could be punished unless proved guilty on the basis of reliable evidence---Benefit of doubt was given to accused in circumstances and they were acquitted accordingly.

Ghulam Rasool and 3 others v. The State 1988 SCMR 557; Siraj-ul-Haq and another v. The State 2008 SCMR 302; Muhammad Yasin alias Raja v. The State and others 2009 SCMR 84 and Imran Ashraf and 7 others v. The State 2001 SCMR 424 ref.

Muhammad Bashir Paracha for Appellant.

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

Date of hearing: 11th March, 2009.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1008 #

2009 P Cr. L J 1008

[Lahore]

Before Kazim Ali Malik, J

MUHAMMAD IQBAL----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1628/B of 2009, decided on 1st April, 2009.

Criminal procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-A(i)/337-A(ii)/337-L(ii)/34---Pre-arrest bail, grant of---Injuries on the person of the complainant were punishable under Ss.337-A(i), 337-L(ii) & 337-F(iii), P.P.C. out of which the former mentioned two provisions of law were non-cognizable and bailable---Allegation of the complainant that accused had given him dagger blows stood belied by medical evidence---Observation of Sessions Court that the accused had failed to establish mala fide on the part of police or the complainant was offensive to the record---Question touching human liberty should not have been dealt with mechanically and in a casual way---Allegation against the accused appeared to be tainted with mala fide on the part of the Investigator and the complainant---Interim pre-arrest bail of the accused was confirmed in circumstances.

Muhammad Anwar Sipra for Petitioner.

Ishaq Masih Naz, D.P.-G. with Bashir Ahmad Komboh, A.S.-I. for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1011 #

2009 P Cr. L J 1011

[Lahore]

Before M.A. Zafar and Muhammad Ahsan Bhoon, JJ

MUHAMMAD YOUSAF and 2 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.319 of 2001 and Murder Reference No.79 of 2002, heard on 25th November, 2008.

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

----S. 302(b)---Appreciation of evidence---Ocular testimony was contrary to medical evidence---Eye-witnesses were not only closely related to the deceased, but admittedly they had also enmity with the accused party---Recovery of fire-arm from the accused without any report of Forensic Science Laboratory was of no worth---Each and every word coming from the mouth of an injured witness could not universally be taken as a true account of the occurrence---Accused had been declared innocent during all the investigations---Although police opinion was not binding on the Court, yet at the same time impact of the same could not be altogether thrown away---Ocular account was without independent corroboration-Accused were acquitted in circumstances.

Altaf Hussain v. The State PLD 2000 Lah. 216 and Muhammad Naeem alias Gogi v. The State 1990 PCr.LJ 1607 ref.

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

----S. 302(b)---Appreciation of evidence---Testimony of injured witness---Principles and guidelines stated.

----S. 302(b)---Appreciation of evidence---Police opinion---Opinion expressed by police although is no proof of innocence or guilt of accused, yet the factum of impact of such an opinion cannot be thrown away to winds altogether.

Muhammad Naeem alias Gogi v. The State 1990 PCr.LJ 1607 ref.

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

---S. 302(b)---Appreciation of evidence---Accused while admitting the occurrence had taken a specific plea of having acted in self-defence when attacked by the complainant party---None of the injuries suffered by accused was with any fire-arm, rather the same were the result of a blunt weapon, which had been duly explained by complainant in the F.I.R.---Defence plea taken by accused was not borne out from the evidence on record rather prosecution evidence was more convincing, as it was quite natural for the complainant that on seeing his two sons having been fired at and done to death by the accused, he would have caused injuries to accused with the gun snatched from the accused, which had already stood broken during the process of snatching---Ocular testimony was corroborated by medical evidence as well as by the positive report of Forensic Science Laboratory qua the weapon of offence used by accused and presence of injuries on his body---Conviction and sentence of accused were upheld in circumstances.

Sardar Muhammad Ishaque Khan for Appellants.

Ch. Muhammad Tariq, Addl. P.-G. for the State.

Date of hearing: 25th November, 2008.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1022 #

2009 P Cr. L J 1022

[Lahore]

Before Ijaz Ahmed Chaudhry and Anwar-ul-Haq Pannun, JJ

MUHAMMAD RIAZ ----Petitioner

Versus

THE STATE----Respondent

Criminal Revision No.645 of 2002 and Murder Reference No.420 of 2002, heard on 25th March, 2009.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Eye-witnesses being the residents of far off places from the place of incident were the chance witnesses, who had not shown any specific reason for their being present at the spot at the time of occurrence along with the deceased---Accused had been sleeping on the night of incident in the same room where the deceased and other prosecution witnesses were sleeping, but no untoward incident took place throughout the night and what had happened in the early hours of the morning provoking the accused to commit the murder of deceased, was not explained by the eye-witnesses---Occurrence had taken place at 5 a.m. while post-mortem examination was conducted at 1-00 p.m. and the intervening period could possibly be consumed in concocting a story and to wait for the relatives of the deceased, who had been made eye-witnesses in the case---No motive for the occurrence was established---Recovery of weapon of offence at the instance of accused on the last day of his' physical remand was not believable and the report of Forensic Science Laboratory could not serve as a corroborative piece of evidence---Prosecution, thus, had failed to prove its case against the accused beyond any shadow of doubt---Although accused had not filed any appeal against his conviction and sentence, yet while thrashing the evidence in the matter of murder reference, Court had reached the aforesaid conclusion, the benefit whereof. could not be withheld to him---Accused was acquitted in circumstances.

Miss Najma Parveen for Respondent on State expenses.

Nemo for the Complainant-Petitioner (in Criminal Revision No.645 of 2002).

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

Date of hearing: 25th March, 2009.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1031 #

2009 P Cr. L J 1031

[Lahore]

Before Hasnat Ahmad Khan and Malik Saeed Ijaz, JJ

IMRAN KHAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.154 and Murder Reference No.300 of 2001, heard on 25th March, 2009.

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

----Ss. 302(a) & 302(b)---Appreciation of evidence---Traumatized and shock stricken complainant in an ensuing pathetic situation could not be expected to report the matter to the police immediately and eight hours delay in lodging the F.I.R. was quite natural in circumstances---Motive behind the occurrence was proved, rather the same was strengthened by the defence witness---Complainant being an inmate of the house and an injured witness, her presence at the time, and place of incident could not be doubted---No deep-rooted enmity existed between the parties and due to close relationship between them false implication of accused was beyond consideration---Deceased before his death in his statement had given full details of the occurrence including the name of accused as prime culprit---Accused was duly identified by the witnesses in the light of electric bulb---Trustworthy ocular evidence furnished by reliable eye-witnesses including an injured witness, was duly corroborated by medical evidence and dying declaration of the deceased---Such evidence could not be disbelieved simply on the ground of the accused having been found innocent during investigation and he could not be given benefit of the favourable findings returned by the Investigating Officer---Claim of accused of being minor at the time of occurrence was also not acceptable---Accused at no stage during the trial claimed himself to be a juvenile offender, nor did he ever produce any document showing him of minor age---Even after the enforcement of the Juvenile Justice System Ordinance, 2000, during his trial, accused never applied for declaring himself to be a juvenile offender---Age of accused recorded in his statement under S.342, Cr.P.C. could not be made a basis for giving a conclusive finding regarding his age, as the same was usually recorded at random in a routine manner---Accused had committed two murders, when the son tried to save his father, he was also fatally wounded by the accused---Youth of accused, therefore, was not a ground for awarding of lesser penalty---Conviction of accused under' S.302(a), P.P.C. being illegal was converted into S.302(b), P.P.C. and the same was upheld with his sentence of death in circumstances.

Iftikhar-ul-Hassan v. Israr Bashir and another PLD 2007 SC 111 and Nazeer alias Wazeer v. The State PLD 2007 SC 202 distinguished.

Muhammad Saleem v. The State 2001 SCMR 536; Muhammad Ajmal v. The State through Advocate-General Punjab PLD 2003 SC 1; Muhammad Mushtaq v. The State 1973 SCMR 219 and Ghulam Hyder v. The State 1970 Cr.LJ 1052 ref.

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

----S. 7---Criminal Procedure Code (V of 1898), S.342---Age of accused, determination of---Trial Courts usually record the age of accused at the time of recording his statement under S.342, Cr.P.C. at random and in a routine manner on the basis of his claim, therefore, the same cannot be made a basis for giving a conclusive finding on an important matter regarding the age of accused.

Muhammad Saleem v. The State 2001 SCMR 536 rel.

Altaf Ibrahim Qureshi for Appellant.

Mirza Mukhtar Baig, D.P.-G. for the State.

Irfan Ali Khosa for the Complainant.

Date of hearing: 25th March, 2009.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1043 #

2009 P Cr. L J 1043

[Lahore]

Before M.A. Zafar, J

TANVEER HUSSAIN QURESHI and 8 others----Petitioners

Versus

DISTRICT PUBLIC PROSECUTOR, SIALKOT and 2 others----Respondents

Writ Petition No.18483 of 2008, decided on 23rd February, 2009.

Penal Code (XLV of 1860)---

----Ss. 365/382/342/148/149---Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006), Ss.9 & 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---District Public Prosecutor while scrutinizing the cancellation report submitted by the Investigating Officer in the case, did not agree with the same and directed the S.H.O. to prepare challan under S.173, Cr.P.C. against the accused for their trial in the Court in accordance with law---Validity---Sections 9 and 10 of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, did not authorize the Public Prosecutor to direct for submission of report/challan under S.173, Cr.P.C. against the accused for their trial or to recommend Departmental inquiry or registration of criminal case against the Food Inspector--Public Prosecutor had no authority to assume and abdicate the function, authority and jurisdiction of Trial Court and he had travelled beyond his jurisdiction and committed a grave illegality by issuing the aforesaid directions to S.H.O.---Function of Public Prosecutor was only to pin point the defects in investigation as well as in the report and to direct the Investigating Agency to remove the same---Trial Court, however, while passing orders even on the cancellation report could issue necessary direction to the Investigating Officer after examining and perusing the available material to submit challan against the accused---Public Prosecutor had no jurisdiction to direct the S.H.O. for doing the same---Impugned direction was set aside and the constitutional petition was ,accepted accordingly.

Fayyaz Ahmed and another v. The State and others 2008 PCr.LJ 805 rel.

Rasoolan Bibi v. Additional Sessions Judge and others Writ Petition No.14672 of 2008 ref.

Shahzada Mazhar for Petitioner.

Rana Abdul Hameed, A.A.-G. with Sarfraz Butt, D.P.P.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1050 #

2009 P Cr. L J 1050

[Lahore]

Before Tariq Shamim and Saif-ur-Rehman, JJ

MUHAMMAD YOUSAF----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.137/J and Murder Reference No.191 of 2003, heard on 18th March, 2009.

Penal code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---F.I.R. was promptly lodged---False implication or misidentification of accused was not possible because of daylight occurrence---Complainant and other eye-witness being residents of the same house were natural witnesses of the occurrence, whose presence at the scene of incident was well explained---Relationship of eye-witnesses with the deceased by itself was not enough to discard their testimony in the absence of any previous enmity between the parties---Medical evidence was in line with the ocular account of occurrence---Recovery of blood-stained "Chhuri" at the instance of accused from his house was fully proved, which was found to be stained with human blood---Prosecution case having been proved through credible and convincing evidence, conviction of accused was maintained---All co-accused of accused had been acquitted by Trial Court on the basis of compromise with the legal heirs of the deceased and the injured prosecution witness---Occurrence had taken place all of a sudden in which accused had inflicted a solitary blow to the deceased and did not repeat the same---Accused had not come armed, at the place of occurrence, which had excluded the possibility of pre-planning and also his intention to commit the murder of the deceased---Motive behind the murder was neither directly attributed to accused nor proved at the trial---Death sentence of accused was converted into imprisonment for life in view of the said extenuating circumstances.

Malik Mukhtar Ahmad Khokhar for Appellant.

Ahsan Rasool Chattha, Dy. P.-G. for the State.

Date of hearing: 18th March, 2009.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1058 #

2009 P Cr. L J 1058

[Lahore]

Before Syed Shabbar Raza Rizvi, J

UMAR HAYAT and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.9872/B of 2008, decided on 20th March, 2009.

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

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, refusal of---Roles of both accused persons had clearly shown that they played overt acts in the commission of crime and their participation in the occurrence was not denied either---Both accused persons performed their contributory and respective roles---Accused were also present at the scene of occurrence in furtherance of their common intention to kill the deceased---Conduct and presence of accused persons had clearly shown that they acted in furtherance of common intention---Ingredients of S.34, P.P.C. were present in the case---One accused inflicted a Sota blow on wrist of deceased's father, whereas, the other accused held deceased in his clasp---Another co-accused caused fatal hatchet blow to deceased Prior to that, all accused including petitioner/accused persons together ambushed and intercepted the complainant party to achieve their common objective---Accused persons would also be deemed liable for the act done by co-accused---Bail application, was dismissed, in circumstances.

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

----S. 34---Main ingredients of S.34, P.P.C.---Main ingredients of S.34, P.P.C. were that a criminal act must be done by several persons; that criminal acts must be done to further the common intention of all; and that there must be participation of all persons in furthering the common intention.

Hafiz Khalil Ahmad for Petitioners.

Asif Mehmood Cheema, Dy. P.-G. with Imran A.S.-I. for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1060 #

2009 P Cr. L J 1060

[Lahore]

Before Iqbal Hameedur Rehman, J

ASGHAR ALI----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.2351/B of 2009, decided on 2nd April, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.337-L(ii), F(iii), (iv) & 452---Bail, grant of---Further inquiry---Medico-legal report showed eight injuries on the person of injured, attributed to accused were by a blunt weapon and only swelling was there, whereas "KARPA" was sharp-edged tool any injury inflicted with it would cause a severe cut---Ocular account, in circumstance was a conflict with the medical evidence---Present was a case of cross-version and all accused of the complainant party had been granted bail---Case of accused, in circumstances, had become that of further inquiry as to which party was an aggressor and which party was aggressed upon---Accused who was behind the bars for the last about four months, was no more required for further investigation---Accused was admitted to bail, in circumstances.

Ghulam Muhammad and 2 others v. The State 2002 PCr.LJ 1611; Allah Ditta and 2 others v. The State 2001 PCr.LJ 216 and Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845 rel.

Waseem Rehmat for Petitioner.

Ishaq Masih Naz, Dy. P.-G. and Barkat Ali A.S.-I with record for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1068 #

2009 P Cr. L J 1068

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

MUHAMMAD SAEED----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.3907/B of 2009, decided on 22nd May, 2009.

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

----S. 498---Penal Code (XLV of 1860), Ss.337-A(i)/337-L(2)/337-F(v)/337-F(i)/148/149---Pre-arrest bail, grant of---Offence attributed to accused under S.337-A(i), P.P.C. was bailable and in such-like cases grant of bail was a rule and its refusal was an exception---Accused's side had also got registered a case alleging that the complainant party had acted in aggression---Case, thus, was of cross-version and it was yet to be determined at the trial as to which party had aggressed against the other---Case against accused in circumstances needed further probe into his guilt---Ad interim pre-arrest bail granted to accused was confirmed accordingly.

Tariq Bashir and. 5 others v. The State PLD 1995 SC 34; Muhammad Nadeem v. The State 2007 MLD 926; Ghulam Muhammad and 2 others v. The State 2002 PCr:LJ 1611; Allah Ditta and 2 others v. The State 2001 PCr.LJ 216 and Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845 ref.

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

---Ss. 497/498---Bail in bailable offences---Principle---Grant of bail in bailable offences is a rule and its refusal is an exception.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Muhammad Nadeem v. The State 2007 MLD 926 ref.

Ch. Sikandar Ali Janbaz for Petitioner.

Ghulam Qadir Bari, Asstt. P.-G. and Abdul Ghani S.-I with record for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1077 #

2009 P Cr. L J 1077

[Lahore]

Before Hasnat Ahmad Khan and Malik Saeed Ijaz, JJ

MUMTAZ AHMAD----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.100 and Murder Reference No.154 of 2003, heard on 9th March, 2009.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Conviction of accused had rightly been not challenged and only commutation of his death sentence into imprisonment for life was prayed for---Occurrence of broad-daylight had been promptly reported to the police within half an hour---Two injured eye-witnesses and the complainant had fully and quite successfully supported the prosecution version aided by medical evidence---According to prosecution evidence itself, motive behind the occurrence was that the accused suspected that the son of an injured prosecution witness had illicit relations with his sister---Accused had been approaching the complainant in this regard and other elders too with complaints about the said illicit relations, but having been disappointed by their discouraging attitude, he after exhausting all peaceful avenues decided to take a drastic action to vent his anger and in utter disappointment and exasperation committed the crime---Except the said motive, accused had no enmity with complainant party---Mitigating circumstances, thus, did exist for commuting the death sentence into imprisonment for life---Conviction of accused under S.302(b), P.P.C. was upheld, but his death sentence was reduced to imprisonment for life in circumstances.

Boota v. The State PLD 1981 SC 196; Muhammad Sher and others v. The State 1985 SCMR 1688; Muhammad Sharif and others v. The State and others-PLD 1995 SC 593; Abdur Rashid v. The State 1989 SCMR 165; The State v. Gulzar Masih 1988 SCMR 1068; Muhammad Afzal v. The State and others 1987 SCMR 1864; Ahmed and others v. The State 1982 SCMR 1049 and Qambar Ali v. The State PLJ 1974 Cr.C. (Lah.) 474 ref.

Sahibzada Farooq Ali Khan for Appellant.

Ishfaq Ahmad Malik, D.P.-G. for the State.

Malik Bakhtiar Mehdi for the Complainant.

Date of hearing: 9th March, 2009.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1087 #

2009 P Cr. L J 1087

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD ASIF alias ASO and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.2962/B of 2009, decided on 26th March, 2009.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.302/324/148/149---Pre arrest bail, refusal of--Case was registered after 1 hour and 35 minutes of the occurrence---Complainant had specifically mentioned the names of both accused persons alleging that they, while armed with kalashnikovs, had fired at the deceased; created terror through firing in the bazaar and murdered deceased and injured three persons---Both accused became fugitive from justice. and were declared proclaimed offenders---For the first time they moved application for bail before arrest, more than four years after the murder---Proclaimed offenders would lose their normal right of audience---Bail before arrest was an extraordinary relief which could not be allowed to such type of accused merely on the basis of compromise, voluntariness of which was yet to be determined and possibility of tampering with the prosecution evidence by accused who appeared to be hardened criminal persons, could not be ruled out---Accused had failed to point out any mala fide for their false implication or explain the reason for their abscondence---Case being not fit for pre-arrest bail, petition filed by accused in this behalf being devoid of any merits was dismissed.

Zafar Mahmood Chaudhry for Petitioner.

Abdul Sattar Chaudhry for the Complainant.

Asjad Javed Ghural, DI.P.-G. along with Imran Yasin, inspector/S.H.O. with record for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1094 #

2009 P Cr. L J 1094

[Lahore]

Before Muhammad Khalid Alvi, J

MUHAMMAD ABDULLAH----Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.912/B of 2009, decided on 30th March, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Customs Act (IV of 1969), Ss.32, 32-A, 14, 14-A & 156(1)---Bail, grant of---Accused was behind the bars for the last about 1-3/4 years and trial had not progressed, even charge had not been framed---All co-accused had already been allowed bail---No useful purpose could be served to keep accused behind the bars for unlimited period, particularly, when trial was not progressing---Accused was admitted to bail, in circumstances.

Rana Mairaj Khalid for Petitioner.

Kh. Noor Mustafa, Dy. Attorney-General.

Syed Muhammad Ali Rizvi, Deputy Superintendent Customs.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1101 #

2009 P Cr. L J 1101

[Lahore]

Before Abdul Sattar Goraya, J

NIGAH HUSSAIN SHAH----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.4471/B of 2009, decided on 26th May, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/109/148/149---Bail, grant of---Accused no doubt had absconded, but the Trial Court in respect of co-accused segregated the trial and co-accused was acquitted of the charge---Validity---Mere abscondence of accused would not prove him to be guilty of the offence as abscondence alone would not be sufficient to base his conviction and each case depended upon its own merits and circumstances---Incriminating evidence which was being used against accused had already been scanned by the Trial Court and co-accused similarly placed had been acquitted of the charge, which was a change in the circumstances---Mere abscondence of accused would not be a hurdle in granting him bail---Keeping accused in jail for an indefinite period, would not serve any purpose---Trial of the case was not in sight---Accused was admitted to bail, in circumstances.

Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812 and Shafqat Abbas and another v. The State 2007 SCMR 162 rel.

Tahir Ahmad Sindhu for Petitioner.

Mrs. Muqaddas Tahir, Dy. D.P.-G. for the State.

Chaudhry Haider Bakhsh for the Complainant.

Muhammad Arshad, Sub-Inspector with record.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1108 #

2009 P Cr. L J 1108

[Lahore]

Before Rana Zahid Mahmood, J

GHAFOOR ASLAM----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.174/M of 2009, decided on 12th March, 2009.

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

----S. 561-A---Penal Code (XLV of 1860), S.295-C---Quashing of proceedings---Accused had allegedly held an introductory ceremony in support of two books named "Zillat" and "Aik Molana Aik Kafir" containing derogatory remarks against the Holy Prophet (peace be upon him) and other Holy personages and delivered a speech along with his co-accused containing such derogatory remarks---D.S.P. (Legal), Gazetted Police Officer, after perusal of the allegations had submitted a report to the police high-ups regarding the offence under S.295-C, P.P.C. having been made out against the accused and others, where after the F.I.R. was registered and investigation had been conducted by S.P. (Investigation) and S.P. (Headquarter)---Investigation in the case, therefore, had been conducted in accordance with law---Trial Court had already recorded statements of three material prosecution star-witnesses against the accused in support of allegations against him and High Court in exercise of its inherent jurisdiction could not pre-empt the jurisdiction of Trial Court, nor could assume the role of Trial Court by examining the depositions of the said prosecution witnesses---Trial being likely to conclude in a short span of time, it was highly inappropriate, rather not permissible, to usurp the jurisdiction of Trial Court simply on the analogy of inherent jurisdiction of High Court---No illegality in the trial before Trial Court had been pointed out warranting exercise through inherent jurisdiction for quashing the proceedings by bypassing the normal procedure---Petition was dismissed in circumstances.

Muhammad Mahboob alias Booba v. The State PLD 2002 Lah. 587 and Malik Salman Khalid v. Shabbir Ahmad, District and Sessions Judge, Karachi and another 1993 SCMR 1873 ref.

Qari Muhammad Younis v. The State 2001 YLR 484; Muhammad Aslam (Ameer Aslam) and others v. District Police Officer, Rawalpindi and others 2009 SCMR 141; State through Advocate-General, N.-W.F.P. and others v. Gulzar Muhammad and others 1998 SCMR 873; 1996 PCr.LJ 2036; 2000 YLR 1273 and 2006 CLC 1099 distinguished.

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

----S. 561-A---Inherent jurisdiction of High Court, exercise of---No invariable rule of law exists for the exercise of jurisdiction under S.561-A, Cr.P.C.---It depends on the facts of each case whether to allow the proceedings to continue or to nip the same in the bud.

Muhammad Aslam (Ameer Aslam) and others v. District Police Officer, Rawalpindi and others 2009 SCMR 141 ref.

----S. 561-A---Inherent jurisdiction of High Court, exercise of---Exercise under S.561-A, Cr.P.C. has to be made sparingly and rarely in most appropriate cases in order to save a party from harassment and abuse of the process of the Court---Nevertheless, jurisdiction of High Court under S.561-A, Cr.P.C. is very wide and indefinable, but the same has to be exercised subject to limitations imposed by law and it cannot bypass the express provisions of the Criminal Procedure Code, 1898.

Malik Salman Khalid v. Shabbir Ahmad, District and Sessions Judge, Karachi and another 1993 SCMR 1873 ref.

Ch. Muhammad Asif Ranjha for Petitioner.

Ch. Muhammad Zafar Khan, Dy. P.-G. for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1117 #

2009 P Cr. L J 1117

[Lahore]

Before S. Ali Hassan Rizvi, J

MUHAMMAD RAMZAN----Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, FAISALABAD and 9 others----Respondents

Writ Petition No.1807 of 2009, decided on24th February, 2009.

Criminal Procedure Code (V of 1898)---

----Ss. 516-A & 439---Constitution of Pakistan (1973), Art.199---Constitutional petition---Superdari of vehicle---Remedy against revisional order---Vehicle in dispute was directed to be given on superdari to respondent by the Magistrate concerned and such order was upheld in revision by the Additional Sessions Judge vide impugned order---Validity---Law did not provide any remedy against the revisional order passed by a Court of Session; in the hierarchy of Courts provided in Criminal Procedure Code---High Court, in circumstances, would be slow in entertaining a constitutional petition against the revisional orders passed by the Court of Session, particularly when it was based on evidence and was clothed with authority---No non-reading or misreading of the material on record was pointed out either---Both the two courts below had passed the impugned orders on sound reasoning and taking into consideration all the relevant facts---Controversial questions of facts could not be determined in constitutional petition---Proper forum was the civil court and civil suit had already been filed by the petitioner in which he failed to get interim relief---Constitutional petition being not entertainable, was dismissed.

Malik Sahib Khan Awan for Petitioner.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1127 #

2009 P Cr. L J 1127

[Lahore]

Before Khurshid Anwar Bhinder, J

ARSHAD and 2 others----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.2032/B of 2009, decided on 1st April, 2009.

Criminal Procedure Code (V of 1898)--

----S. 498---Penal Code (XLV of 1860), S.365-B---Ad interim pre-arrest bail, confirmation of---Four months' delay in lodging of F.I.R. had not been plausibly explained, which had made the case doubtful---Was not possible that in said four months, complainant father of alleged abductee and other family members., did not know as to who had abducted their daughter---Said considerable delay of four months in lodging of F.I.R. cast serious doubt in one's mind regarding happening of the occurrence as well as role of accused---Investigating Officer, had categorically stated that alleged abductee was not recovered from accused---Previous enmity existed between one of accused persons and the complainant---False implication of accused person in the case, could not be ruled out, in circumstances---Investigating Officer had also stated that he had not been able to finalize his investigation as abductee was not recovered---Possibility was that main accused of the occurrence would have taken alleged abductee along with him abroad---If that was so then accused persons absolutely had no role in the abduction and entire story narrated in the F.I.R. was doubtful---Case of accused persons being that of further inquiry into their guilt, ad interim pre-arrest bail already granted to them, was confirmed.

Ch. Imran Ahmed for Petitioners.

Ch. Yasir Zulfiqar for the Complainant.

Ghulam Qadir Bari, A.P-G. with M. Ashraf, S.-I. for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1133 #

2009 P Cr. L J 1133

[Lahore]

Before Khurshid Anwar Bhinder, J

ABDUL WAHEED----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.712/B of 2009, decided on 14th May, 2009.

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---Accused though was nominated in the F.I.R. with specific role of fermenting liquor, but the court had to see as to whether provisions of law under which accused was liable to be tried were attracted in the case or not-One aspect of the case seemed absolutely implausible, irrational and unbelievable that Police raiding party had caught accused red handed while he was fermenting liquor at the backyard of his house, especially when that place was accessible to every one---Was not possible for any person to commit any crime at an open place where he was being seen by public at large---Police raiding party had no doubt recovered necessary utensils which were used in fermenting liquor, but they had not been able to recover any material from which liquor was fermented---In order to constitute an offence under Art.3 of Prohibition (Enforcement of Hadd) Order, 1979, it was all the more necessary that recovery of material as well as utensils used were to be effected, but in the present case, Police raiding party had not been able to recover material used in the preparation of liquor---Manufacturing of liquor, in circumstances having not been established, Art.3 of Prohibition (Enforcement of Hadd) Order, 1979, was not attracted in the case--Offence under Art.4 of Order, was bailable---Accused previously being a non-record holder, possibility of fake implication of accused in the case could not be ruled out---Offences under which accused was liable to be tried, were not attracted in the case---Case of accused being that of further inquiry into his guilt, he was admitted to post arrest bail.

Amjad Pervaiz Qureshi for Petitioner.

Ch. Muhammad Afzal Pansota, A.P.-G. with Azhar, A.S.-I.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1136 #

2009 P Cr. L J 1136

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

MUHAMMAD AKHTAR----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.1206/B of 2009, decided on 7th May, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Bail, grant of---Counsel for accused had admitted his liability to the extent of Rs.4,00,000 in his petition and he undertook to pay the said amount within two months---Section 489-F, P.P.C. did not fall within the prohibitory clause of S.497, Cr.P.C.---Accused was in jail for the last five months and he could not be kept in jail for an indefinite period on the whim or caprice of the prosecution---Investigation had already been completed and accused was no more required for further investigation---Accused was admitted to bail, in circumstances.

Amir Iqbal Chaudhary v. The State 2009 PCr.LJ 155; Aman Ullah v. The State 2007 YLR 1120; Muhammad Nadeem 2007 MLD 926 and Saeed Abbas v. the State 2008 PCr.LJ 1140; 2008 MLD 255 and 2008 MLD 243 rel.

Malik Sajjad Ahmad Wains for Petitioner.

Malik M. Tariq Rajwana for the Complainant.

Syed Mukhtar Masood Bukhari, Dy. D.P.P. with Peer Bakhsh, A.S.-I. for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1137 #

2009 P Cr. LJ 1137

[Lahore]

Before Tariq Shamim, J

GEHNA KHAN----Petitioner

Versus

MUHAMMAD NAWAZ and 7 others--Respondents

Criminal Revision No.490 of 2007, decided on 5th March, 2009.

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

---Art. 150---Penal Code (XLV of 1860), Ss.302/148/149---Cross-examining own witness---Petitioner/complainant had assailed the order of the Trial Court whereby request of counsel for prosecution to cross-examine prosecution witness was declined---Witness sought to be cross-examined in his statement under S.161, Cr.P.C. had specifically stated that the weapon on its being recovered was made into a sealed parcel in white cloth---However, while deposing about the recovery of pistol from accused at the trial, said witness for some unexplained reasons did not mention that the pistol was made into a sealed parcel---Where a witness deliberately concealed a fact, he could be cross-examined by the prosecution---Such a course was permissible under Art.150 of Qanun-e-Shahadat, 1984---Such a witness would not necessarily lose his credibility, but his evidence could be relied upon by either party and the court could come to its own conclusion after consideration of whole of his evidence---Impugned order was set aside---Trial Court was directed to permit the counsel for the prosecution to cross-examine prosecution witness.

Mian Muhammad Sikandar Hayat for Petitioner.

Ms. Azra Israr, Dy. P.-G., Punjab for the State.

Date of hearing: 5th March, 2009.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1140 #

2009 P Cr. L J 1140

[Lahore]

Before Iqbal Hameed-ur-Rahman, J

IJAZ AHMAD----Petitioner

Versus

MUHAMMAD ASLAM and others----Respondents

Criminal Miscellaneous No.11424/CB of 2009, decided on 14th May, 2009.

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

----S. 497(5)---Penal Code (XLV of 1860), S.489-F---Bail, cancellation of---Complainant by incurring an expenditure of Rs.42,00,000 had completed the project sublet by the accused contractor to him, but on a dispute having arisen on payment of amount, an agreement had been arrived at between them, whereafter accused gave a cheque of Rs.42,00,000 to the complainant, which had been dishonoured by the Bank on account of stoppage of payment---Accused after the execution of the said agreement and issuance of the cheque, had been very active in creating a plausible defence in order to avoid the consequences of the registration of the case under S.489-F, P.P.C. against him by the complainant---Accused had been adopting different versions and taking steps in order to improve his defence and to get the complainant involved in some case to exert pressure on him---Case got registered by the accused against the complainant had been cancelled after investigation on having been found false and based on distorted facts completely bereft of reality---Accused subsequently also filed a private complaint against the complainant and others---All these steps appeared to have been taken by the accused with ulterior motives and mala fide intention just to avoid the payment of Rs.42,00,000 to the complainant---Session Court while granting bail to accused had ignored the stance of the complainant in a very casual manner without giving any reasons for rejecting the same and, its order therefore, was perverse and arbitrary---Grant of bail to an accused in every case not hit by the prohibitory clause of S.497(1), Cr.P.C. was not a rule of universal application and each case had to be dealt with on its own facts and circumstances---Bail allowed to accused was withdrawn in circumstances.

2009 SCMR 174; 1992 SCMR 1286; PLD 1996 SC 241; 2004 SCMR 2331; 2007 YLR 3236; 1971 SCMR 637 and 1976 PCr.LJ 34 ref.

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

----S. 497---Bail---Cases not hit by prohibitory clause of S.497, Cr.P.C.---Practice and procedure---Grant of bail town accused in every case not hit by the prohibitory clause of S.497(1), Cr.P.C. is not a rule of universal application and each case has to be dealt with on its own facts and circumstances---Court cannot exercise such discretion in an arbitrary, fanciful or perverse manner.

2009 SCMR 174 ref.

Syed Hassam Qadir Shah for Petitioner.

Ch. Muhammad Asif Ranjha for Respondent No.1.

Ghulam Qadir Bari, Asst. P.-G. for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1146 #

2009 P Cr. L J 1146

[Lahore]

Before S. Ali Hassan Rizvi, J

MUHAMMAD AKRAM----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.392/B of 2009, decided on 24th February, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.394---Bail, refusal of---Involvement of accused in the case was fully established during investigation---Recovery of pistol, wrist watch gold ornaments including pair of ear-rings spoke heavily against accused---Accused was arrested the same day---Injury on the body of the victim was a stamp of truth of the F.I.R.---Offence committed by accused was hideous in nature---Granting bail to accused would amount to trivialize and play down the gravity of the offence committed by him---Alleged statement of the complainant lady in favour of the co-accused would in no manner be helpful to accused---Co-accused had pressurized the complainant which amounted to tampering with the prosecution evidence---In non-compoundable cases, affidavit of any prosecution witness would not carry much weight at bail stage---Accused appeared to be a criminal with considerable clouts, he was not entitled to be released on bail.

Sh. Usman Karim-ud-Din for Petitioner.

Muhammad Awais Ahsan for the Complainant.

Asif Mehmood Cheema, D.P.-G. with Muhammad Arshad Inspector/S.H.O. for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1148 #

2009 P Cr. L J 1148

[Lahore]

Before Pervaiz Inayat Malik, J

QAISAR AYUB----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.162 of 2005, decided on 31st March, 2009.

Penal Code (XLV of 1860)---

---S. 302(c)---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Accused in his statement under S.342, Cr.P.C. had confessed to have committed the murders of his wife and her paramour on account of "Ghairat" due to sudden provocation---Impugned judgment was solely based on the statement of accused, according to which the occurrence had taken place in his house, when he had seen his wife and her paramour in a naked and compromising condition and he killed them on sudden provocation---In the name of "Ghariat" and sudden provocation, licence could not be given to anyone including near relatives for committing murder---Mitigating circumstances for reduction of sentence of accused, however, were available---Conviction of accused was maintained, but his sentence was reduced to the imprisonment already undergone by him, which was over five years and sufficient to meet the ends of justice---Compensation awarded under S.544-A, Cr.P.C. to the legal heirs of the deceased was set aside in circumstances.

Muhammad Saeed v. The State 2008 PCr.LJ 330 and Mairaj Bibi v. Ijaz Anwar and others PLD 1982 SC 294 ref.

Sardar Muhammad v. The State 1997 MLD 3045 distinguished.

Muhammad Masood Sabir for Appellant.

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

Date of hearing: 24th March, 2009.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1153 #

2009 P Cr. L J 1153

[Lahore]

Before Zafar Iqbal Chaudhry, J

MUHAMMAD ASLAM----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.9446/B of 2008, decided on 5th November, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.406/471/467---Bail, grant of---Accused was behind the bars for the last about six months and the offences against him did not fall within the prohibitory clause of S.497, Cr.P.C.---According to medical report accused was a patient of Hepatitis `C'---Accused also had history of Blood in Vomitus and his condition reflected worsening of disease---Accused needed investigation and management in Hospital which could not be carried out inside Jail Hospital---In view of his condition, his further detention in jail would be injurious to his health---Accused was admitted to bail, in circumstances.

Syed Zahid Hussain Bukhari and Khalid Parveen for Petitioner.

Irfan Ahmad Khan for the Complainant.

Mian Ismat Ullah, D.P.-G. along with Khamis, A.S.-I. with record for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1155 #

2009 P Cr. L J 1155

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

UMER DRAZ----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.3921/B of 2009, decided on 6th May, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.496-A/363/376/365-B---Bail, grant of---Abductee had made two statements under S.164, Cr.P.C. making serious allegations: against the complainant in her first statement and involving the accused fully in her second statement---Case of accused in the presence of two contradictory statements of the abductee had become one of further inquiry---Testimony of the abductee who had been making different statements at different times would be considered with great care and caution, particularly while determining the legal effect of her aforesaid second statement charging the accused-Taking the vaginal swabs of the abductee after 18 days of the occurrence during her medical examination was of no significance, especially in the absence of the report of the Chemical Examiner---Contradictory statements of the abductee in the absence of any strong corroboration could not be relied upon---Possibility of false implication of accused could not be ruled out---Accused was admitted to bail in circumstances.

Zahoor Hussain Shah v. The State 2008 YLR 2797; Manzoor Ahmed v. The State 2008 YLR 2351 and Anwar and others v. The State 2006 PCr.LJ 710 ref.

Muhammad Chand Khan for Petitioner.

Ghulam Qadir Bari, Asstt. P.-G., Punjab and Muhammad Ramzan A.S.-I. with record for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1157 #

2009 P Cr. L J 1157

[Lahore]

Before Tariq Shamim and Saif-ur-Rehman, JJ

MUHAMMAD ARIF and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.1463, Criminal Revision 1079 and Murder Reference No.762 of 2003, heard on 7th April, 2009.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Appreciation of evidence---Medical evidence was in consonance with ocular testimony---Crime-empties sent to Forensic Science Laboratory prior to the arrest of accused had matched with the fire-arms recovered at their instance---Eye-witnesses were natural witnesses of the occurrence, whose presence at the spot had been well explained---Minor and natural discrepancies in prosecution evidence deserved to be ignored---Occurrence had taken place in broad-daylight---F.I.R. was promptly lodged---Accused had failed to extend any plausible reason for the witnesses to. falsely implicate them in the double murder, while letting off the real culprits---Motive behind the occurrence stood proved and even admitted by the accused through cross-examination of a prosecution witness---Defence plea had remained unsubstantiated, which even otherwise was highly improbable and preposterous---Credible and unimpeachable evidence had proved the guilt of accused---Convictions and sentences of death of accused were affirmed in circumstances.

S.D. Qureshi, Defence Counsel for Appellants.

Ahsan Rasool Chattha, Dy. P.-G. for the State.

Date of hearing: 7th April, 2009.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1165 #

2009 P Cr. L J 1165

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

MUHAMMAD AFZAL----Petitioner

Versus

THE STATE and 2 others----Respondents

Criminal Revision No.281 of 2009, heard on 8th April, 2009.

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

----S. 250---False, frivolous or vexatious accusations---Compensation---Compensation could be awarded when the court was of the opinion that complaint was not only false but either frivolous or vexatious---In the absence of any of the elements, awarding the compensation would not be proper---While awarding of compensation related to penal actions against the complainant, court ought to have passed order of imprisonment in default of payment of compensation.

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

----S. 250---False, frivolous or vexatious accusations---Compensation---Acquittal of accused from false, frivolous or vexatious complaint---Procedure for awarding compensation stated.

----S. 250---Penal Code (XLV of 1860), Ss.324, 436/34 & 109---Criminal Revision---Complainant was directed to pay compensation to accused for making false and frivolous accusations---Validity---Trial Magistrate, after acquitting the accused in the case, had straightaway imposed upon the complainant compensation of Rs.25,000 payable to accused, to be recovered as arrears of land revenue---No separate order had been passed in this regard except issuance of a Robkar to the Tehsildar for the recovery of the said compensation---Although complainant had replied the notice, yet the Magistrate without considering his contentions and without giving any reasons to refute his version, had passed the impugned order---Magistrate was required under the law to determine the liability of the complainant by a separate specific order, which aspect of the matter had even been ignored by Sessions Court, while dismissing the appeal of the complainant---Impugned orders were consequently set aside being not tenable in the eyes of law and the case was remitted to the trial Magistrate to pass a fresh order after considering the reply filed by the complainant petitioner in response to show-cause notice---Revision petition was allowed accordingly.

Achhru Mal v. Emperor AIR 1926 Lah. 298; Ma Pu v. Mating Tun Pe and another AIR 1940 Rangoon 110 and Mualim Shah v. Jan Muhammad and another 2000 PCr.LJ 718 ref.

Ch. Shahid Tabassam for Petitioner.

Mian Ismatullah, Dy. P.-G. Punjab for the State.

Date of hearing: 8th April, 2009.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1169 #

2009 P Cr. L J 1169

[Lahore]

Before Khurshid Anwar Bhinder, J

AURANG ZAIB and 3 others----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.796/B of 2009, decided on 24th February, 2009.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.364/148/149---Pre-arrest bail, grant of---Accused though were nominated in the F.I.R. with a specific role, but the facts and circumstances of the case proved that accused were not involved in the abduction of the sister of the complainant, because there was a delay of nine months in lodging the F.I.R. after the occurrence---Alleged abductee was not sure as to whether accused persons were those who had abducted her--Complainant had made an application to Justice of Peace for registration of a criminal case against suspected accused persons and none of the present accused persons had been arrayed therein, meaning thereby that at the time of filing an application before the Justice of Peace, she did not implicate present accused persons with the commission of the offence---No direct or indirect evidence was available on record which could connect present accused persons with the commission of the offence---No eye-witness account of the occurrence was available on record---Two investigations were conducted in the case according to which in the first investigation present accused were declared innocent, but in second investigation they were declared guilty---When two investigations were at variance, then no reliance could be placed on any of the investigations as nothing could be determined about the guilty or innocence of accused persons---Family dispute existed between both the parties and civil litigation was also pending---Mala fides on the part of the complainant against present accused persons, in circumstances, were quite evident---Case of accused persons falling within the ambit of further inquiry into their guilt, their ad interim pre-arrest bail already granted to them was confirmed, in circumstances.

Malik Rab Nawaz for Petitioners.

Fayyaz Ahmad, D.P.-G. with Zia, A.S.-I. for the State.

Complainant in person.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1176 #

2009 P Cr. L J 1176

[Lahore]

Before Mazhar Hussain Minhas, J

FALAK SHER----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.6701/BC of 2009, decided on 30th June, 2009.

Criminal Procedure Code (V of 1898)---

---Ss. 497(5) & 498---Penal Code (XLV of 1860), Ss.302/148/149---Bail before arrest---Refusal to cancellation of---Accused was simply named in the F.I.R.---No significant role in the occurrence was attributed to him----Going of accused to the place of occurrence along with co-accused, fully armed, but not firing at the deceased or prosecution witnesses, did not appeal to reason---Accused simply resorted to aerial firing---Accused alleged to have thrown .12 bore gun at the spot but record did not show that the same was licensed in his name---Nephew of accused claimed the gun by moving application for interim custody of the gun---Investigation Officer had concluded that the accused did not participate in the occurrence and reached the spot after occurrence was over---Regarding involvement of accused in the cases, he had not been convicted in any criminal case---When there was litigation of accused with father of the co-accused, siding of accused with them in the occurrence, was not believable---Accused happened to be an Advocate by profession and had been falsely implicated with some ulterior motive to harass and humiliate him---Pre-arrest bail was rightly allowed by the Sessions Court which had not committed any illegality---Application for cancellation of bail was dismissed in circumstances.

Ch. Akbar Ali Shand for Petitioner.

Syed Ijaz Qutab for Respondent No.2.

Ishaq Masih Naz, Dy. P.-G. for the State with Jawad Wasim, S.-I.

2009 P Cr. L J 1245

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUGHEES AZAM BHATTI----Petitioner

Versus

Ch. JAVED IQBAL SAIF, ADDITIONAL SESSIONS JUDGE, LAHORE and 2 others----Respondents

Writ Petition No.2489 of 2009, decided on 12th May, 2009.

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

----Ss. 233 & 537---Penal Code (XLV of 1860), S.420---Constitution of Pakistan (1973), Art.199---Constitutional petition---Misjoinder of charges---Validity---Two separate accused, according to F.I.R., had committed separately cognizable offences, yet only one F.I.R. had been registered by the S.H.O.---Accused and one other person had cheated the complainant separately, but the offences committed by them under S.420, P.P.C. were merged into one F.I.R.---Mandatory provisions of S.233, Cr.P.C. had been disregarded and violated both by police authorities and by Trial Court at the time of framing of charge and in subsequent proceedings---Case was of misjoinder of charges, which in view of mandatory provisions of S.233, Cr.P.C. was an illegality vitiating the entire proceedings and was not curable under S.537, Cr.P.C.---Such illegality being patent on the face of record and the proceedings before Trial Court continuously suffering from the same, were set aside being unlawful---Prosecution was directed to submit fresh separate challans against both the accused persons to be charged separately by the Trial Court---Constitutional petition was allowed accordingly.

1986 MLD 2477; Sh. Muhammad Aslam v. State and others 1991 MLD 1973; PLD 1960 Dacca 551 and PLD 1985 Lah. 173 ref.

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

----Art. 199---Constitutional jurisdiction-Scope-Writ of certiorari will issue only in cases of want or excess of jurisdiction and also in cases of illegality not curable under S.537, Cr.P.C.---Such illegality, however, must not entail any enquiry into the facts of the case, but must be patent on the face of the record---Where an enquiry is necessitated to question the illegality in the case, the illegality cannot be said to be patent on the face of the record.

PLD 1985 Lah. 173 ref.

----S. 233---Separate charges for distinct offences---Misjoinder of charges---Effect---Misjoinder of charges is an illegality which vitiates the entire proceedings.

PLD 1985 Lah. 173 ref.

Khurram Khan for Petitioner.

Ch. Muhammad Ilyas Jhammat for Respondent No.3.

Muhammad Nawaz Bajwa, A.A.-G. and Asif Mehmood Cheema, D.P.-G. for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1254 #

2009 P Cr. L J 1254

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

AMAN ULLAH----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.4000/'B of 2009, decided on 29th May, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 337-H(ii), 148, 149 & 109---Bail, grant of---Further inquiry---Cross-version case---Both rival cases were pending---In the cross-version case of accused, all accused persons had been granted pre-arrest bail---Case of accused, in circumstances, had become that of further inquiry---Question as to which party was an aggressor and which party was aggressed upon, would be decided after recording evidence by the Trial Court---Accused was behind the bars since long and there was no progress in the trial of the case---Injury caused by accused was on the non-vital part of the injured---Prima facie the intention to kill, did not appear to be available, keeping in view the seat of injury which was on the non-vital part of the body and was not repeated---Accused was admitted to bail, in circumstances.

2009 SCMR 324; 2009 PCr.LJ 545; 2009 MLD 348; 2008 MLD 1225; Ghulam Muhammad and 2 others v. The State 2002 PCr.LJ 1611; Allah Ditta and 2 others v. The State 2001 PCr.LJ 216 and Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845 rel.

Muhammad Akbar Malik for Petitioner.

]

Sardar Akbar Ali for the Complainant.

Ghulam Qadir Bari, Asstt. P.-G. and Ghulam Shabbir Khan, S.-I. with record for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1259 #

2009 P Cr. L J 1259

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD AYUB----Appellant

Versus

ABDUL HAMEED and 4 others----Respondents

Criminal Appeal No.647 of 2007, heard on 22nd May, 2009.

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

----Ss. 337-A(i), 337-L(ii), 452 & 149---Criminal Procedure Code (V of 1898), S.417(2)---Appeal against acquittal---F.I.R. in the case was got registered with the delay of 23 hours without any explanation---Appellant/complainant had involved all the family members of the respondents/accused persons in the case and the Police during investigation came to the conclusion that accused persons were innocent and they did not participate in the incident---Opinion of the Police though was not binding upon the court, but said opinion was verified by DSP and they were not placed, as accused in the report under S.173, Cr.P.C.---Complainant and his witnesses admitted during the cross-examination that civil suit was pending between the parties who had a dispute over distribution of property and incident took place during prosecution of said dispute---Prosecution witnesses were inimical towards accused persons due to litigation and dispute over the property and they were not independent witnesses---Witnesses had a motive to falsely implicate all the family members in order to pressurize them and restrain from pursuing the civil suit respecting their share of the property from the complainant---Accused had been facing agony of trial for the last 12 years with allegation of causing simple injuries on the person of prosecution witnesses and S.452, P.P.C. had been deleted by the Police during the investigation and opined that accused persons did not trespass into the house of complainant---Even otherwise both parties were closely related to each other and provisions of S.452, P.P.C. were not attracted against them as they had access to the house of each other without interference---Finding of the Trial Court with regard to acquittal having not been found perverse, fanciful and against the settled principle of law, appeal against acquittal was dismissed.

Farooq Khan v. The State 2008 SCMR 917; Waris Hussain Shah v. Abid Hussain Shah and 3 others 2001 PCr.LJ 268; Muhammad Sarwar v. The State PLD 2007 Lah. 618; Mahmood Ahmad and others v. The State and others 2007 PCr.L.J.1173; Zahir Hussain Shah and others v. Shah Nawab Khan and others 2007 PCr.LJ 1757; Abdul Aziz v. Muhammad Lal and 2 others 2001 YLR 236; Muhammad Pervez and others v. The State and others 2007 SCMR 670; Imran and 3 others v. The State 2007 PCr.LJ 721; Pervaiz Khan v. Shaikh Rais and 3 others 2009 PCr.LJ 10; Zahoor Ahmed V. The State 2007 SCMR 1519; Miss Kanwal Akram v. D.P.O. Gujrat and 11 others 2007 YLR 2169 and Naik Muhammad alias Naika and another v. The State 2007 SCMR 1639 ref.

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

----S. 417(2)---Penal Code (XLV of 1860), Ss.337-A(i), 337-L(ii), 452 & 149---Appeal against acquittal---Rule of estoppel in criminal cases---Rule of estoppel, could not be applied against accused and if accused had not challenged the earlier judgment and case was remanded on the criminal revision filed by the complainant, it could not be said that accused who were subsequently convicted and sentenced could not challenge the same as the matter was reopened after the remand order---Judgment of the Trial Court was open to be challenged by the parties as fresh cause of action had arisen; on that score alone appeal against acquittal could not be accepted---Trial Court had given valid reasons for acquittal of accused persons which were borne out from the evidence on the record---Counsel for appellant had failed to point out any misreading or non-reading of the material evidence on the part of Trial Court in arriving at conclusions it had reached---Interference in appeal against acquittal was a rare phenomenon and reappraisal of evidence was not its purpose---Presumption of double innocence was attached to the acquitted accused and if two views could be formed from the evidence on record, view favourable to accused had to be preferred---Finding of acquittal having not been found perverse, fanciful and against the settled principle of law, same was maintained and appeal against acquittal order was dismissed, in circumstances.

Muhammad Nadeem Sheikh for Appellant.

Muhammad Aslam Shehzad for the State.

Date of hearing: 22nd May, 2009

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1273 #

2009 P Cr. L J 1273

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

GHAZANFAR ABBAS----Petitioner

Versus

THE STATE----Respondents

Criminal Miscellaneous Nos.5040/B and 5397/B of 2009, decided on 27th May, 2009.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.371-A & 371-B---Bail, grant of---Further inquiry---Sufficient material against accused was not available to substantiate the commission of the offence---No eye-witness was available before conducting the raid---No search warrant had been obtained before raiding the house of accused---Complete violation of Ss.103 & 105, Cr.P.C. in the case---Mala fide urged on behalf of accused that he had lodged a complaint against the complainant Police Officer who was also Investigating Officer of the case and that case was pending, to some extent was substantiated which made the case of accused doubtful---Mala fide involvement of accused in the case, therefore, could not be ruled out, in circumstances, which had made the case of accused as that of further inquiry---Complainant and Investigating Officer being the same person was not approved, and in such-like cases the bail had usually been granted---Accused was residing with his whole family, wife, grown up daughters and sons and in such circumstances, the business of brothel could not be imagined in the presence of children and wife---Co-accused having been allowed bail, accused was also entitled for the grant of bail---Accused was admitted to bail, in circumstances.

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

----S. 497(2)---Bail---Complainant and Investigating Officer being the same person was not approved, and in such-like cases the bail had usually been granted.

Mehar Ahmad Bakhsh Bharwana for Petitioners.

Ghulam Qadir Bari, Astt. P.-G., Punjab and Zulfiqar A.S.-I. with record for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1281 #

2009 P Cr. L J 1281

[Lahore]

Before S. Ali Hassan Rizvi, J

MUHAMMAD HANEEF SHAH----Petitioner

Versus

MUHAMMAD KHALIL AHMAD SHAH and 2 others----Respondents

Writ Petition No.2770 of 2009, heard on 12th March, 2009.

Penal Code (XLV of 1860)---

----Ss. 337-A(i)/337-A(ii)/337-L(ii)/337-F(i)/148/149---Punjab Government Notification No.SO(H&D)6-1/90, dated 12-2-1990---Punjab Government Notification No.SO(H&D)6-1/90, dated 8-2-1992---Constitution of Pakistan (1973), Art.199---Constitutional petition---Magistrate had allowed reexamination of the injured witness on the application of accused, which order had been set aside by Sessions Court in revision on the ground that Medical Board could not be constituted after 21 days of the first medical examination of the injuries, as the injuries would have healed up in 5 to 7 days---Validity---Notification of the Government of Punjab, Health Department No.SO(H&D)6-1/90, dated 12-2-1990 had ordained that the order for constitution of Medical Board to re-examine the injuries must be passed within three weeks---Another notification No.SO(H&D)6-1-/90, dated 8-2-1992 had clarified that if re-examination order was passed by the District, Magistrate in judicial capacity even after three weeks of the first examination, the same would supersede the Notification, dated 12-2-1990---Magistrate had ordered re-examination of the injured after. a period of six months of his first examination, which was not much in quest of justice at such a belated stage---Even Sessions Court did not appear to be aware of the notification dated 8-2-1992---By the time re-examination of the injured was directed the injuries must have healed up and any opinion of the Medical Board would be more on a topsy-turvy view which could create misgivings---Conclusion drawn by the Sessions Court was consequently upheld by High Court for its own reasons---Constitutional petition was dismissed accordingly.

1999 PCr.LJ 2005 and 2001 MLD 1242 ref.

Ch. Farooq Mehmood Kehloon for Petitioner.

Shabir Ahmed Khan for Respondents.

Date of hearing: 12th March, 2009.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1299 #

2009 P Cr. L J 1299

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Khurshid Anwar Bhinder, JJ

SHAUKAT ALI----Petitioner

Versus

SPECIAL JUDGE, ANTI-TERRORISM COURT NO.IV, LAHORE and 2 others----Respondents

Writ Petition No.13553 of 2008, heard on 30th October, 2008.

Penal Code (XLV of 1860)---

---Ss. 302/109/148/149---Anti-Terrorism Act (XXVII of 1997), Ss.7 & 23---Constitution of Pakistan (1973), Art.199---Constitutional petition---Transfer of case from Anti-Terrorism Court to ordinary Court---According to F.I.R. three persons had been murdered by the accused due to previous enmity between the parties---Act of private revenge based on personal vendetta was not an act of terrorism---Occurrence had taken place at midnight in a room of the house and it was not mentioned that firing made by accused either had attracted the people of the locality or created terror or sense of fear and insecurity in the society---Intention of accused was not at all to create sense of insecurity, destabilize public-at-large or to advance any sectarian cause---House of the deceased persons was not a public place---Provisions of Anti-Terrorism Act, 1997, were not attracted in the case and Trial Court had erroneously assumed the jurisdiction--Case was consequently transferred from Anti-Terrorism Court to the Sessions Court for disposal in accordance with law---Constitutional petition was accepted accordingly.

Mst. Najam-un-Nisa v. Judge, Special Court constituted under Anti-Terrorism Act, 1997 .2003 SCMR 1323 ref.

Muhammad Waseem assisted by Azam Nazeer Tarar for Petitioner.

Waqar Hussain Mir and Muhammad Akbar Tarar, Addl. A.-G. for Respondent.

Date of hearing: 30th October, 2008.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1302 #

2009 P Cr. L J 1302

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD AFZAL JAVED----Petitioner

Versus

MUHAMMAD AKRAM and another----Respondents

Criminal Miscellaneous No.1750-CB of 2009, decided on 16th June, 2009.

Criminal Procedure Code (V of 1898)---

---Ss. 497(5) & 498---Penal Code (XLV of 1860), S.489-F---Cancellation of pre-arrest bail---Application for---Principles for grant of bail and those for cancellation of bail, of course, were quite different, but it was equally true that when bail granting order was found to be patently illegal and against the facts of the case, High Court had ample powers to cancel the same---In the present case extraordinary relief of pre-arrest bail had been granted in favour of respondent/accused who had bilked the complainant to the tune of a huge amount of Rs.3,41,50,000 on flimsy and airy fairy grounds---While granting the pre-arrest bail, the Trial Court delved very deep into the factual controversy and discussed evidentiary value of the documents in question in a very detailed manner, which was not warranted at the bail stage---While deciding the pre-arrest bail, the Trial Court failed to appreciate the, difference between the consideration for pre-arrest bail and those for after-arrest bail; and without holding that the case in question had been registered against accused due to the mala fides of the Police or the complainant, which was a pre-condition for grant of extraordinary relief of pre-arrest bail to accused---In cases involving possible recovery of bilked/swindled amount, stolen/looted property or other incriminating material, pre-arrest bail was rarely granted to accused---Bail granting order which was patently illegal, based on fanciful and airy fairy reasons, was not sustainable.

Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82; Zia-ul-Hassan v. The State PLD 1984 SC 192; Masood Ahmad alias Muhammad Masood v. The State 2006 SCMR 933 and Riaz Ahmed v. The State 2009 SCMR 725 ref.

Rana Muhammad Arshad Khan for Petitioner.

Qazi Zafar Iqbal, Addl. P.-G. with Khalid Mehmood, S.-I. for the State.

Muhammad Kazim Khan for Respondent No.1.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1307 #

2009 P Cr. L J 1307

[Lahore]

Before Muhammad Akram Qureshi, J

MUHAMMAD SALEEM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.9149-B of 2008, decided on 29th October, ' 2008.

Criminal Procedure Code (V of 1898)---

----S. 498--- Penal Code (XLV of 1860), S.489-F---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.20--- Pre-arrest bail, grant of---Section 489-F, P.P.C. and S.20 of Financial Institutions (Recovery of Finances) Ordinance, 2001, are two independent sections---Section 489-F, P.P.C. is applicable when transaction is between two individuals---Banks are the financial institutions and if an offence regarding dishonest issuance of cheque was committed to satisfy the loan secured from a Banking Institution then S.20 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 would be applicable and the Bank would be required to file complaint before the Banking Court in that case and registration of case before police, its investigation and submission of challan in pursuance thereof, would not be in accordance with law and Trial Court would be debarred from taking cognizance of the offence---Definition of the word "complaint" excludes the report of a police officer from the domain of complaint---Case of accused fell within the ambit of S.20 of the aforesaid Ordinance, which carried maximum penalty of one year rigorous imprisonment and was a bailable offence---Accused could not be remanded to police custody in a bailable offence---Ulterior motive of the police was quite apparent in the registration of the present case---Interim pre-arrest bail already granted to accused was confirmed in circumstances.

2006 CLD 1314; PLD 2001 Lah. 533 and PLD 2008 Kar. 212 ref.

Umer Farooq for Petitioners.

Ch. Fayyaz Ahmad, D.P.G. with Abdul Hameed, S.-I.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1310 #

2009 P Cr. L J 1310

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD IJAZ----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.6351/B of 2009, decided on 16th June, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, refusal of---Presence of complainant, widow of deceased, who subsequently was implicated as co-accused, at the spot could not be ruled out, because she was inmate of the house where occurrence took place and she had alto received some injuries on her person during the occurrence---Complainant had not exonerated accused from the allegation levelled against him in F.I.R., but had re-affirmed said allegations while lodging the private complaint---Even according to the cursory statements made by the eyewitnesses in the said complaint, accused was the main perpetrator of the offence---During the investigation he was found guilty of the alleged offence---Criminal weapon i.e. the pistol was also recovered from the possession of accused---Prima facie sufficient evidence was on record to saddle accused with alleged crime---Delay in conclusion of the trial had not been found to be unconscionable---Criminal Procedure Code, however, did not contain any provision giving a right of bail to accused belonging to sterner sex, simply on the ground of certain and apprehended delay in conclusion of trial---First bail application of widow of accused, who later on was implicated as co-accused was dismissed after considering the merits and de-merits of the case in detail---Lady however, was granted bail as a matter of right in view of the relevant provisions of law due to statutory delay in conclusion of the trial---No such right was available to accused--Even otherwise, case of accused was quite distinguishable from that of said co-accused---Bail application having been found meritless, was dismissed in circumstances.

Siraj Din v. Kala and another PLD 1964 SC 26; Muhammad Saleh v. The State PLD 1965 SC 366; Ghulam Muhammad and another v. The State PLD 1961 (W.P.) Lah. 146; Riaz alias Sarfraz v. The State 1977 PCr.LJ 493; Fateh Khan v. The State 1973 PCr.LJ 125; Rafaqat Ali v. The State 2007 YLR 335; Nawab and another v. The State 1975 PCr.LJ 1270 and Mohabat v. The State 1975 PCr.LJ 882 ref.

Mushtaq Raj for Petitioner.

Qazi Zafar Iqbal, A.P.-G. with Bashir A.S.-I. for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1319 #

2009 P Cr. L J 1319

[Lahore]

Before Syed Hamid Ali Shah, J

F.M.C. UNITED (PVT.)LTD.---Petitioner

Versus

P.O.P. ---Respondent

Writ Petitions Nos.1749, 887 and 379 of 2001, heard on 24th October, 2008.

(a) Agricultural Pesticides Ordinance (II of 1971)---

----S. 18(3)(6)---Constitution of Pakistan (1973), Arts.199, 4 & 14---Constitutional petition---Contentions of the petitioner were that S.18(3)(6) of the Agricultural Pesticides Ordinance, 1971 offended against Art.4 of the Constitution as said provision makes the reports of analyst and the laboratory as conclusive evidence, hence the right of fair trial was taken away from the accused and that said provision on one hand offended, Art.4 and on the other hand Art.14 of the Constitution---Validity---Held, provisions of S.18(6), Agricultural Pesticides Ordinance, 1971 were essential to achieve the objectives in the larger interest of public---Public interest had the precedence over the personal interest---Constitutional petition challenging the validity of the impugned provision, was neither competent nor had any merit---Principles.

Pakistan Muslim League (Q) and others v. Chief Executive of Islamic Republic of Pakistan and others PLD 2002 SC 994; Saiyyid Abul A'la Maudoodi and others v. The Government of West Pakistan and another PLD 1964 SC 673; Universal Tobacco Company Par Hoti, Mardan through Manager and 9 others v. Pakistan Tobacco Board and 3 others 1998 CLC 1666 and Chitta Ranjan Sutar v. The Secretary, Judicial Department, Government of East Pakistan and 2 others PLD 1967 Dacca 445 fol.

Stroud's Judicial Dictionary; Abdul Razak v. Karachi Building Control Authority and others PLD 1994 SC 512; Muhammad Ismail and others v. The State PLD 1969 SC 241; Iftikhar Ahmad v. The Muslim Commercial Bank Ltd. and another PLD 1984 Lah. 69; Ujagar Singh and others v. Emperor AIR 1939 Lah. 149 and Behram Sheriar Irani v. Emperor AIR 1944 Bom. 321 ref.

(b) Agricultural Pesticides Ordinance (II of 1971)---

----S. 18(3)(6)---Provisions of S.18(3) & (6) of the Agricultural Pesticides Ordinance, L971 elaborated.

---Preamble & S.2(1)(rr)---Agricultural Pesticides Ordinance, 1971 provides machinery to control adultrated or substandard pesticides---"Adultrated" and "substandard"---Connotation.

(d) Agricultural Pesticides Ordinance (II of 1971)---

----Ss. 17, 20, 21 & 27---Agricultural Pesticides Rules, Rr.36, 22 & 33---Criminal Procedure Code (V of 1898), Ss.262 to 265---Agricultural Pesticides Ordinance, 1971 has provided a transparent procedure for collection of samples and law imposes no restraint upon an accused in the course of trial to defend himself---Principles.

(e) Agricultural Pesticides Ordinance (II of 1971)---

----S. 18(6)---Qanun-e-Shahadat (10 of 1984), Arts.90 to 95, 99, 121, 55 & 128---Constitution of Pakistan (1973), Arts.199, 4 & 14---Scope and application of S.18(6) of Agricultural Pesticides Ordinance, 1971---Maxim: Omnia Praesumuntur Contra Spoliatorem: every presumption is made against a wrong doer---Applicability---Section 18(6) of the Ordinance does not take away from the court its powers to conduct a fair trial---Certificate of analysis, prepared by the Pesticides Laboratory is conclusive evidence of the facts stated therein---Contents or ingredients of pesticides whether are up to a prescribed standard, is a matter which cannot be ascertained through recording the evidence of the witnesses; it is to be examined in a laboratory through laboratory test---Ordinance has provided the conduct of test through two different laboratories to rule out the chance of imperfect test in the laboratory---Presumption of conclusive evidence is attached to the second test, carried by the Government Analyst---Government Analyst is an independent body and its impartiality need not be doubted---Analyst report is made conclusive evidence, to curb unlawful sale of adulterous, substandard and spurious pesticides---Presumption, therefore, cannot be termed as illegal or unconstitutional---Presumption of constitutionality is attached to every legislation---Reasonable restrictions on fundamental laws are permissible; reasonableness depends upon circumstances and nature of the rights involved---Provisions of S.18(6) are essential to achieve the objective in the larger interest of public and public interest has the precedence over the personal interest---Constitutional petition challenging the validity of S.18(6) was neither competent nor had any merit---Principles.

Pakistan Muslim League (Q) and others v. Chief Executive of Islamic Republic of Pakistan and others PLD 2002 SC 994; Saiyyid Abul A'la Maudoodi and others v. The Government of West Pakistan and another PLD 1964 SC 673; Universal Tobacco Company Par Hoti, Mardan through Manage and 9 others v. 'Pakistan Tobacco Board and 3 others 1998 CLC 1666 and Chitta Ranjan Sutar v. The Secretary, Judicial Department, Government of East Pakistan and 2 others PLD 1967 Dacca 445 fol.

Stroud's Judicial Dictionary; Abdul. Razak v. Karachi Building Control Authority and others PLD 1994 SC 512; Muhammad Ismail and others v. The State PLD 1969 SC 241; Iftikhar Ahmad v. The Muslim Commercial Bank Ltd. and another PLD 1984 Lah. 69; Ujagar Singh and others v. Emperor AIR 1939 Lah. 149 and Behram Sheriar Irani v. Emperor AIR 1944 Bom. 321 ref.

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

---Arts. 90 to 95, 99, 121, 55 & 128---Presumption---Kinds---Presumption is a rule which treats an unknown fact as proved on proof or admission of certain other facts; it can be presumption of fact/natural presumption or presumption of law---Presumption of law is either rebuttable or irrebuttable---Rebuttable presumptions are indicated by the expression "shall presume" and Arts.90 to 95, 99 & 121, Qanun-e-Shahadat, 1984, govern these presumptions---Irrebuttable presumptions are indicated by expression" shall be conclusive proof", Arts.55 & 128, Qanun-e-Shahadat, 1984, pertain to these presumptions---No difference exists between the phrases "conclusive proof" or "conclusive evidence", object of both the phrases, is to give finality to the establishment of the existence of a fact from the proof of another.

(g) Maxim---

----"Omnia Praesumuntur Contra Spoliatorem;" Every presumption is made against a wrong doer---Applicability.

Miss Natalia Kamal for Petitioner.

Malik Muhammad Nawaz for Respondent No.1.

Muhammad Arshad Tabraiz, D.A.G. and Syed Husnain Kazmi, A.A.-G.

Date of hearing: 24th October, 2008.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1327 #

2009 P Cr. L J 1327

[Lahore]

Before Muhammad Akram Qureshi, J

SHAMAN and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.8078/B of 2008, decided on 16th December, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/334/336/148/149---Bail, refusal of---Accused were named in the F.I.R.---Specific role had been attributed to them---Accused persons, after occurrence, fled away and remained proclaimed offender in the case---Challan against accused persons had already been submitted in the court and the trial was likely to conclude shortly---Offence with which accused persons were involved carried penalty of death/life imprisonment/10 years' R.I. which fell within the prohibitory clause of S.497, Cr.P.C.---Accused were vicariously liable for the act of their co-accused---No case for grant of bail having been made out, bail petition was dismissed.

Abdul Khaliq Safrani for Petitioners.

Akbar Ali Tahir for the Complainant.

Ch. Fayyaz Ahmed, D.P.-G. along with Aslam, S.-I. for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1334 #

2009 P Cr. L J 1334

[Lahore]

Before Syed Shabbar Raza Rizvi and Habib Ullah Shakir, JJ

Agha QAIS----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.1282 of 2003, heard on 28th May, 2009.

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

----S. 9(c)---Police Order (22 of 2002), Art.18---Police Rules, 1934, R.25.2(3)---Appreciation of evidence---Investigating Officer being a neutral authority could not be a complainant and a witness in a case which he was investigating, as was evident from Art.18 of Police Order, 2002 and R.25.2(3) of the Police Rules, 1934---Investigation in the case, therefore, was not fair, honest and transparent---Where an Investigating Officer had acted as a complainant and raiding officer, defence would be deprived of its very precious right and forced not to depend upon him---Non-production of the case property in the Court was fatal to the prosecution case, which had destroyed its very foundation---Incriminating report of Chemical Examiner, basis of the prosecution case, having not been put to accused in his statement under S.342, Cr.P.C., had deprived him of the opportunity to explain the said incriminating evidence---Accused was acquitted in circumstances.

Nazir Ahmad v. The State PLD 2009 Kar. 191; Ashiq alias Kaloo v. State 1989 PCr.LJ 601; State v. Bashir and others 1998 SC 408 and Riasat Ali v. State 2004 PCr.LJ 361 ref.

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

----S. 9(c)---Police Order (22 of 2002), Art.18---Police Rules, 1934, R.25.2(3)---Investigating Officer acting in many capacities---Effect---Investigating Officer is an important witness also for the defence and in case the head of the police party also acts as an Investigating Officer, he ,may not be able to discharge his duties as required under the Police Rules.

State v. Bashir and others 1998 SC 408 ref.

----S. 9(c)---Non-production of case property in Court---Effect---Unless the recovered narcotics are produced in the Court, it cannot be found that accused was carrying them on his person and the same were recovered from him.

Riasat Ali v. State 2004 PCr.LJ 361 ref.

Sardar Balakh Sher Khosa for Appellant.

Rana Sohail Iqbal for Respondent.

Date of hearing: 28th May, 2009.

2009 P Cr. L J 1379

[Lahore]

Before S. Ali Hassan Rizvi, J

MUHAMMAD ARIF MIAN through Special Attorney----Petitioner

Versus

ABDUL HAFEEZ and 4 others----Respondents

Writ Petition No.7674 of 2009, decided on 24th April, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Request of prisoner to withdraw amount from National Savings Centre through his wife---Respondent who was in judicial lockup in a criminal case against him, filed application that as he was in judicial lockup and required money for marriage of his daughters; and that payment of amount be directed to be made from his account in National Savings Centre through is wife---Sessions Judge disposed of application of respondent, directing Incharge National Savings Centre concerned to approach Superintendent of District Jail and to proceed with the matter in accordance with law---Petitioner had contended that amount lying in National Savings Centre, which was sought to be taken out was the subject matter of fraud and cheating; and that order passed by the Sessions Judge being perfunctory in nature; was unwarranted and without jurisdiction---Validity---It was duty of investigator to have made all efforts for recovery of amount forming the subject matter of alleged fraud---If some amount was in account of respondent and he wanted to take the same out for purposes of marriage of his daughters through his wife, his request could not have been rejected---Sessions Judge passed order exercising all reasonable restraints---Order was innocuous---Petitioner who alleged fraud, had not filed any civil action for recovery of amount allegedly forming the subject matter of fraud---Respondent was in custodia legis and the Sessions Judge was custodian of his lawful rights---Order passed by the Sessions Judge, in circumstances, was within the mandate of his authority and could not be upset in the constitutional jurisdiction of High Court.

Mian Mehmood Ahmad Kasuri for Petitioner.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1388 #

2009 P Cr. L J 1388

[Lahore]

Before Iqbal Hameedur Rehman, J

EHTASHAM-UL-HAQ----Petitioner

Versus

THE STATE----Respondents

Criminal Miscellaneous No.7634/B of 2009, decided on 7th July, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, refusal of---Accused was nominated in the F.I.R.---Eye-witnesses had seen the accused strangulating the deceased along with co-accused---Medical report had supported the prosecution version---Motive had further aided the case against the accused---Accused had been found guilty during investigation---Deeper appreciation of evidence was not permissible at bail stage---Sufficient evidence being available on record in support of prosecution case, granting bail to accused on the ground of his being juvenile in a case of brutal murder on a petty dispute, was not justified--Bail was declined to accused in circumstances.

Rai Khalid Pervaiz for Petitioner.

Mrs. Rahat Majeed, A.D.P.P. and Jabbar Hussain Bhatti, A.S.-I. with record for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1403 #

2009 P Cr. L J 1403

[Lahore]

Before Iqbal Hameedur Rahman, J

MUHAMMAD NAWAZ and another----Petitioners

Versus

THE STATE----Respondent

Criminal Revision No.426 of 2009, heard on 30th June, 2009.

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

----Ss. 302/148/149/109---Qanun-e-Shahadat (10 of 1984), Art.163--Criminal Procedure Code (V of 1898), Ss.265-K & 439--Trial Court had dismissed the application of accused for acquittal under S.265-K, Cr.P.C.---Validity---Police during investigation after about five months on the basis of statements of two persons recorded under the oath of the Holy Qur'an, had declared the nominated accused. of the F:I.R. as innocent and involved the present accused in the murder of the deceased---Said statements being inconsistent with the ocular evidence of the complainant and eye-witnesses were not reliable---Declaration of the accused nominated in the F.I.R. as innocent by police on swearing on the Holy Qur'an, was in contravention of Art.163 of the Qanun-e-Shahadat, 1984---Present accused were neither nominated in the F.I.R nor in the complaint case or even in the inquiry report conducted thereunder and charge against them being groundless, there was no possibility of their conviction in the case---Impugned order was consequently set aside and the accused were acquitted of the charge in circumstances---Revision petition was accepted accordingly.

Muhammad Sadiq and another v. The State PLD 1960 SC (Pak.) 223; Amir and another v. The State PLD 1968 Lah. 49; The State v. Tanveer-ul-Hassan and 5 others 2009 PCr.LJ 199; Muhammad Rafiq and 3 others v. The State 1974 PCr.LJ 391; Wahid Bakhsh and another v. The State 1976 PCr.LJ 34; Muhammad Khan v. Maula Bakhsh and another 1998 SCMR 570; Abdul Sattar and others v. The State 1995 PCr.LJ 1793; Khalid Nawaz v. The State 1999 PCr.LJ 391; State through Secretary, Ministry of Interior v. Ashiq Ali Bhutto 1993 SCMR 523 and Ghulam Mujtaba v. The State 2009 YLR 169 ref.

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

----Art. 163---Acceptance or denial of claim on bath---Procedure of swearing on Holy Qur'an is not applicable in criminal proceedings under Art.163 of the Qanun-e-Shahadat, 1984.

Abdul Sattar and others v. The State 1995 PCr.LJ 1793 and Khalid Nawaz v. The State 1999 PCr.LJ 391 ref.

Malik Ghulam-us-Saddain for Petitioners.

Ghulam Qadir Bari, A.P.-G. for the State.

Date of hearing: 30th June, 2009.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1418 #

2009 P Cr. L J 1418

[Lahore]

Before Iqbal Hameedur Rahman, J

KASHIF KHAN----Petitioner

Versus

THE STATE----Respondents

Criminal Miscellaneous No.5210/B of 2009, decided on 5th June, 2009.

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

----S. 497---Penal Code (XLV of 1860), S.489-F---Bail, grant of---Transaction between the accused and the complainant being one of business dealing, was of civil nature---Offence against the accused did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Accused was behind the bars for the last fourteen months without any progress in the trial---Continued confinement of accused would amount to punishment before conviction, which was not permissible under criminal jurisprudence---Courts had allowed bail in cases where business transactions were admitted---Pendency of other similar cases against the accused without showing his conviction was not sufficient to refuse bail to him---Accused was admitted to bail in circumstances:

2004 YLR 2675; Muhammad Akbar v. The State 2005 PCr.LJ 677; Rana Ehsan v. The State 2004 YLR 2675; Major Anwar-ul-Haq v. The State PLD 2005 Lah. 607; Haq Nawaz Khan v. The State 2006 YLR 50; Aftab Hussain v. The State 2004 SCMR 1467, Sher alias Shera and another v. The State 1999 MLD 1643 and Karim Bux v. The State 2001 PCr.LJ 1802 ref.

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

----S. 497---Penal Code (XLV of 1860), S.489-F---Bail---Business transaction---Where business transactions are admitted between the parties, Courts generally allow bail to accused.

2004 YLR 2675; Muhammad Akbar v. The State 2005 PCr.LJ 677; Rana Ehsan v. The State 2004 YLR 2675 and Major Anwar-ul-Haq v. The State PLD 2005 Lah. 607 ref.

----S. 497---Penal Code (XLV of 1860), S.489-F---Bail---Pendency of other similar cases---Effect---Pendency of other cases of similar nature against the accused without showing his conviction therein is not sufficient to refuse discretionary relief of bail to him.

Aftab Hussain v. The State 2004 SCMR 1467; Sher alias Shera and another v. The State 1999 MLD 1643 and Karim Bux v. The State 2001 PCr.LJ 1802 ref.

Arshad Ali Chohan for Petitioner.

Mian Irfan Akram for the Complainant.

Ghulam Qadir Bari, Asstt. P.-G. and Muhammad Sarwar A.S.-I. with record for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1427 #

2009 P Cr. L J 1427

[Lahore]

Before Khawaja Muhammad Sharif, C. J. and Ijaz Ahmad Chaudhry, J

MUHAMMAD JAVED alias JAIDA----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.9165/B of 2009, decided on 11th August, 2009.

Criminal Procedure Code (v or 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51---Bail, refusal of---Accused was found in possession of 1.750 Kgs. of Charas---Accused and his relatives had criminal record---Eleven cases including five narcotic cases stood registered against the accused---Three sons of accused were respectively involved in 20, 3 and 6 cases---Two brothers-in-law of accused were also involved in 10 and 3 cases respectively; most of the cases were under Control of Narcotic Substances Act, 1997---No mala fide or malice on the part of police or false involvement in the present case or the cases in his previous record were shown---Accused appeared to be habitual criminal of drug trade, such-like persons may not be let loose on the society for repeating their nefarious activities---Section 51 of the Control of Narcotic Substances. Act, 1997 imposed an embargo upon grant of bail in cases registered under the Act---Accused, in circumstances, was not entitled to the concession of bail.

Sardar Khurram Latif Khosa for Petitioner.

Ch. Jamshed Hussain, D.P.-G. and Muhammad Ishaq, S.-I. for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1430 #

2009 P Cr. L J 1430

[Lahore]

Before Kazim Ali Malik, J

NASEER AHMED and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.5085/B of 2009, decided on 28th May, 2009.

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

----S. 496---Bail in bailable offences---Principle---Under the mandatory provision of S.496 Cr.P.C., accused of bailable offence is entitled to bail as a matter of right without any application for bail.

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

----S. 497---Bail, grant of---Principles---Bail in non-bailable offence is governed under S.497 Cr.P.C.---Grant of bail in case not falling within prohibitory clause of S.497 Cr.P.C. is rule and refusal an exception---Under first proviso to S.497' Cr.P.C. accused of non-bailable offence under the age of 16 years or sick or infirm should be released on bail---Under provisos 2 and 3 to S.497 Cr.P.C. all offences against woman accused should be taken as bailable notwithstanding anything contained in Schedule II of Cr.P.C., excepting offences of terrorism, financial corruption, murder and such offences punishable with death or imprisonment for life or imprisonment for 10 years---If case for bail of any accused does not come within the ambit of, any of the provisos to S.497 Cr.P.C., even then he should be released on bail if allegation regarding his role is open to further inquiry and doubt because of established legal principle that benefit of doubt is a right of accused, even at bail stage.

Tariq Bashir's case PLD 1995 SC 34 rel.

---S. 498---Pre-arrest bail, grant of---Principles---Wide powers have been given under S.498 Cr.P.C. to High Court and Court of Session to grant pre-arrest bail---Jurisdiction of High Court and Court of Session under S.498 Cr.P.C. is concurrent-,-Powers of High Court under S.498 Cr.P.C. to grant pre-arrest bail are unfettered by any condition---Discretion is to be exercised by court under the provisions of law judicially and not arbitrarily---Anticipatory bail under S.498, Cr.P.C. being an extraordinary relief, is granted on extraordinary grounds---Good ground for post arrest 'bail is no ground for pre-arrest bail.

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

----Ss. 9, 497 & 498---Bail, grant of---Territorial jurisdiction---Scope---Sessions Judge or Additional Sessions Judge is not possessed with jurisdiction to entertain or decide bail petitions arising out of cases not falling within territorial jurisdiction of Sessions division for which they are appointed or posted.

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

----Ss. 9, 498 & 561-A---Protective bail---Scope---Sessions Court---Jurisdiction---Protective/enabling bail is nowhere defined or provided in Criminal Procedure Code, 1898---Protective bail is granted to accused to enable him to approach concerned Court for the purpose of obtaining pre-arrest bail---Protective bail is granted without touching merits of case as it is an established practice of High Court---Order of protective bail, being for limited period, expires automatically on target date---In case protective bail is allowed to accused for fixed period, it would not make him entitled to pre-arrest bail as a matter of right---Restraining police from arresting accused to enable him to approach concerned court for pre-arrest bail is not a bail---If High Court feels that accused is not in a position to lay his request for pre-arrest bail before concerned Court of Session, police is restrained from arresting him for a few days in exercise of inherent powers to enable accused to approach concerned Court and such protection does not amount to his bail---It is an injunctive order in exercise of inherent powers by High Court, which is being termed as protective or enabling bail---Court of Session does not have inherent powers under S.561-A, Cr.P.C. and being creation of S.9 Cr.P.C., Sessions Judge or Additional Sessions Judge are competent to grant post-arrest bail in cases pertaining to their sessions division---Court of Session is not vested with inherent powers to pass restraining order/enabling bail in cases pertaining to another sessions division.

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

----Ss. 302, 324, 452, 148 & 149---Criminal Procedure Code (V of 1898), Ss.9, 498 & 561-A---Protective bail---Scope---Sessions Court---Jurisdiction---Accused were residents of district "F" where F.I.R. was registered against them but they by showing their temporary residence at district "C" sought protective bail from Additional Sessions Judge of that district---Validity--- Additional Sessions Judge of district "C" entertained petition and allowed protective bail to accused mechanically and without application of legal and judicial mind---Protective bail granting order by Additional Sessions Judge was illegal, without jurisdiction and void ab initio and the same could not be allowed to hold the field, and was set aside---Additional Sessions Judge of district "C" exercised inherent powers not vested in him and thus encroached upon exclusive jurisdiction of High Court---Additional Sessions Judge of district "C" had no jurisdiction to entertain bail petition in a case relating to Sessions division "F"---Petition was disposed of accordingly.

Muhammad Iqbal Chaudhry, D.P.-G.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1439 #

2009 P Cr. L J 1439

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

ABDUL MAJEED----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.4013/B of 2009, decided on 4th May, 2009.

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

----S. 498---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3, 4 & 16---Criminal Procedure Code (V of 1898), S.103---Pre-arrest bail, grant of---Haveli, a private place, had been raided by the police without first having obtained a search warrant, in violation of both Art.16 of the Prohibition (Enforcement of Hadd) Order, 1979, and S.103, Cr.P.C.---Huge quantity of liquor was recovered from the Haveli---Offences with which accused was charged were not hit by the prohibitory clause of S.497(1), Cr.P.C.---Grant of bail in such a case was a rule and refusal an exception---Co-accused had already been granted bail---Ad interim pre-arrest bail granted to accused was confirmed in circumstances.

Muhammad Hashim v. The State 1995 PCr.LJ 1594; Suleman v. The State 1990 PCr.LJ 1302 and Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

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

----Ss. 497/498---Bail---Case not falling within prohibitory clause of S.497, Cr.P.C.---Principle---Grant of, bail in offences not hit by prohibitory clause of S.497(1), Cr.P.C. is a rule and its refusal is an exception.

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

Ch. Babar Waheed for Petitioner.

Arif Karim Dy. P.-G., Punjab and Tariq S.-I. with record for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1442 #

2009 P Cr. L J 1442

[Lahore]

Before Iqbal Hameed-ur-Rahman, J

MUHAMMAD WALAYAT----Petitioner

Versus

ZAFAR ULLAH and 2 others----Respondents

Criminal Miscellaneous No.4049/CB of 2009, decided on 12th June, 2009.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/34/109---Bail, cancellation of---Role of abetment had been attributed to accused through supplementary statements of two prosecution witnesses, which appeared to be an afterthought---False involvement of accused in the case, therefore, °could not be ruled out---No motive had been assigned to accused for commission of the offence and they appeared to have been implicated in the case to widen the net. to involve their whole family---Mala fide and malice on the part of the complainant, thus, could not be ignored---After grant of bail to accused by a competent Court very strong and exceptional grounds were required to undo the same, which had not been presented by the complainant---Impugned order granting pre-arrest bail to accused passed by Sessions Court was not perverse or arbitrary---Petition was dismissed in circumstances.

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

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/34/109---Bail, cancellation of---Scope---Provisions of S.497(5), Cr.P.C. are not punitive---Very strong and exceptional grounds are required to cancel the bail granted by a Court of competent jurisdiction---Law does not compel to cancel the bail allowed in cases punishable with death, imprisonment for life or imprisonment for ten years.

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

Rai Zameer-ul-Hassan for Petitioner.

Ch. Rukhsar Ahmad for Respondents Nos. 1 and 2.

Ghulam Qadir Bari, Asstt. P.-G. and Allah Ditta, S.-I. with record for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1450 #

2009 P Cr. L J 1450

[Lahore]

Before Kazim Ali Malik, J

SHA FQATULLAH----Petitioner

Versus

SESSIONS JUDGE, NANKANA SAHIB and 6 others----Respondents

Criminal Revision No.537 of 2009, heard on 21st July, 2009.

Criminal Procedure Code (V of 1898)---

----Ss. 491 & 439---Habeas corpus petition---Sessions Judge being unable to form a definite opinion qua the counter-claims of the parties regarding the age of the alleged detenue, directed her to be detained in Dar-ul-Aman, awaiting determination of her age and validity of her marriage with the petitioner by a competent Court---Nikahnama and the report of the Medical Board had established that the detenue was adult and hence competent to contract marriage of her choice---Marriage between the petitioner and the detenue could not be disputed, firstly because they had steadily stated before High Court that being adult and sui juris they had contracted valid marriage with their free-will and consent, and secondly because respondent, father of the detenue, had attested the Nikahnama as witness to the marriage of his daughter with the petitioner, and thus, it did not lie .in his mouth to say that the said marriage was invalid---"Tasaduq-ul-Zojain" could not be questioned by a third person before High Court as well as before Sessions Court---Major Muslim woman like a major Muslim man was entitled to the same rights and liberties---Mere fact that the father and brother of the detenue had chosen and decided on reconsideration to force her to live in desertion did not provide legal; social and moral ground for the Court of Law to restrain her from leading matrimonial life of her choice---Dar-ul-Aman -is not a place of detention---Sessions Judge had got the detenue recovered from illegal confinement of her father and then himself detained her in Dar-ul-Aman for an indefinite period, which was a naked assault on her fundamental right of liberty and the right to lead a life of her choice---Sessions Court was not possessed with powers and authority to regulate mode and manner of life of an adult person, as done in the present case---Question was as to whether the female who had attained the age of majority, could be treated as a chattel and handed over to the custody of one of the male members, of her family against her wishes---No Qur'anic Injunction or saying of the Holy Prophet (peace be upon him) or any provision of codified law or the case-law, was available to the effect that a major Muslim girl should only live in the custody of her father or brother---In case the argument of counsel for respondents, was accepted, then the detenue on account of her sex would be treated as a person under some sort of disability---View of Sessions Judge being offensive to Qur'anic Injunctions and law of the land, could not be endorsed---Detenue being sui juris was competent to lead life of her choice and no restraint could be imposed on her even at the instance of her father or brother---Detenue was directed to be released from Dar-ul-Aman forthwith enabling her to go wherever she liked---Petition was accepted accordingly.

Muhammad Saffar v. Assistant Director Social Welfare and others 1988 SCMR 2087 distinguished.

Muhammad Asif Hayat for Petitioner.

Muhammad Iqbal Chaudhry, D.P.-G. with Naseer Ahmad, S.-I. for the State.

S.K. Chaudhry for Respondents.

Date of hearing; 21st July, 2009.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1458 #

2009 P Cr. L J 1458

[Lahore]

Before Kazim Ali Malik, J

IRSHAD MUHAMMAD----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.7901/B of 2009, heard on 6th July, 2009.

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

----Ss. 156, 173, 170 & 169-Police Order (22 of 2002), Art.18(6)---Police Rules, 1934---Investigation---Scope---Term "investigation" has not been defined by Pakistan Penal Code, '1860 and Criminal Procedure Code, 1898---Combined examination of the Criminal 'Procedure Code, 1898, Police Order, 2002 and Police Rules, 1934, however, makes it manifest that investigation consists of spot inspection, collection of evidence, ascertainment of facts in the, light of collected evidence and attending circumstances of the case and apprehension of accused provided the collected evidence is sufficient to connect him with the charge---In case the investigator comes to the conclusion that the evidence is sufficient, he is required to prepare final report under S.173 read with S.170, Cr.P.C., and if he is of the opinion that the evidence is deficient, then cancellation report is drawn up ,in terms of S.173 read with S.169, Cr.P.C.

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

----S. 498---Penal Code (XLV of 1860), Ss.302/324/427/34---Constitution of Pakistan (1973), Art.199---Pre-arrest bail, refusal of---During hearing of bail application an important legal question had arisen as to whether the investigating agency was possessed with uncontrolled and unfettered powers. to investigate into cognizable cases or the Court can build legal checks and restrictions on its powers---In order to answer the said question of public importance touching the root of administration of criminal justice, bail petition was converted into a petition under Art.199 of the Constitution---All the prosecution, witnesses had not uttered a single word against the accused and his co-accused during the course of investigation w.e.f. 4-3-2009 to 11-6-2009--On 12-6-2009 seven eye-witnesses came forward with the claim that the accused, his sons and grandson had committed the crime within their view on 4-3-2009 at 2-00 p.m. and that they could not name them previously as they had remained in shock for three months---Extra-judicial confession was the weakest type of evidence, whereas joint extra-judicial confession was no evidence, 'but Investigating Officer had deviated from the established legal principle and treated so-called joint extra-judicial confession of two co-accused as a valid piece of evidence against all the accused persons---Effect--.-High Court had always interfered with the investigation where investigating agency had conducted the investigation without considering all the relevant facts and circumstances of the case or exercised the powers in an arbitrary manner---Investigator in the present case had concluded against the accused person's arbitrarily and fancifully---Findings and conclusions by the investigator were based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of facts, patent error of law, consideration of inadmissible evidence, excess and abuse of authority and unreasonable view point about the result of investigation---Investigator's view against the accused was certainly unreasonable, because he had treated joint extra-judicial confession as legal piece of evidence and agreed with ridiculous stance of prosecution witnesses that being in shock' they could not commit to their memory identity of their co-villagers while witnessing the occurrence in daylight and that they regained normal faculty after three months on one date---Dishonest, mala fide, arbitrary, illegal and offensive to the record actions by the concerned police were wearing the mask of investigation---High Court, therefore, was fully justified to stop the police from investigating the ease over and above , the law against the accused and his family members---Inspector-General of Police was directed to make over investigation of the cases to a team of two honest and upright senior police officers headed by D.I.-G., who in the opinion of Police Commander, of the Province were not amenable to any pressure, after observing all necessary legal formalities---Apprehension of arrest was condition precedent for seeking pre-arrest bail, which had come to an end qua the accused in view of the transfer of investigation---Bail petition had become infructuous and was disposed of as such.

Shahnaz Begum v. The Honourable Judges of the High Court of Sindh and Balochistan PLD 1971 SC 677 ref.

Shahid Hameed Dar for Petitioner.

Sajjad Ahmed Mirza for the Complainant.

Muhammad Iqbal Chaudhry, D.P.-G. with Tariq Rustain, D.P.O. Mukhtar Ahmad S.-I. and Dilawar Hussain, S.-I. for the State.

Date of hearing: 6th July, 2009.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1472 #

2009 P Cr. L J 1472

[Lahore]

Before Ijaz Ahmad Chaudhry, J

AAMIR MEHMOOD----Petitioner

Versus

JAVED ALI and another----Respondents

Criminal Miscellaneous No.5443/BC of 2009, decided on 7th August, 2009.

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

----S. 497(5)---Penal Code (XLV of 1860), S.302---Bail, cancellation of---Medical ground---High Court had already refused bail to accused on merits and four months thereafter he had applied for bail on medical grounds before Sessions Court---Report of Medical Officer of Jail appeared to have been procured, as it had -only disclosed that accused was being treated, but the accused never mentioned his ailment Hepatitis-C in his application and only placed on record two reports obtained after filing of application, which showed that accused had no previous history of ailment---Interim report of Medical Board only to the . extent that accused was suffering from Hepatitis-C was not sufficient for grant of bail to him without obtaining the final opinion about the ailment that whether it was not curable in jail and remaining of accused in jail was injurious to his life---Accused himself did not opt to appear before the Medical Board on the dates fixed by it subsequently when he had been bailed out, which showed that he was not interested in his further examination---Sessions Court taking the matter lightly had granted bail to accused, who had no chequered history. of any ailment and was involved in a serious case---Even after release on bail accused statedly was not cooperating with the Court for conclusion of the trial and had started using delaying tactics in completion thereof---No definite opinion of Medical Board was available on record that the remaining 'of accused in jail was hazardous to his life and that the treatment which he needed for ailment could not be provided within the jail premises---Bail granted to accused on medical grounds was cancelled in circumstances.

Ghulam Raza v. Khuda Bux and another 2005 SCMR 1904; Muhammad Aslam v. Muhammad Gul and others 1995 PCr.LJ 1733; Noor-ud-Din v. The State PLD 1995 Kar. 518; Malik Muhammad Yousaf Ullah Khan v. The State and another PLD 1995 SC 58 and Muhammad Arshad v. The State 1997 SCMR 1275 ref.

Mian Manzoor Ahmad Wattoo v. The State 2000 SCMR 107; Farman Ali v. The State 2008 MLD 1121 and Abbas v. The State 2009 SCMR 212 distinguished.

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

----S. 497(1), first proviso---Penal Code (XLV of 1860), S.302---Bail on medical ground---Pre-requisites---Correct criteria for grant of bail to an accused in a non-bailable case on medical ground is that the sickness or ailment with which he is suffering is such that it cannot be properly treated within the jail premises and that some specialized treatment is needed and his continued detention in jail is likely to affect his capacity or is hazardous to his life.

Muhammad Yousafullah Khan v. The State PLD 1995 SC 58 ref.

Rai Bashir Ahmad for Petitioner.

Muhammad Qasim for Respondent No.1.

Sahibzada M.A. Amin Mian, Addl. P.-G. along with Maqsood Ahmad S.-I. with record for the State.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1479 #

2009 P Cr. L J 1479

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

NIAZ----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.344 of 2005, heard on 11th June, 2009.

Penal Code (XLV of 1860)---

----Ss. 302, 309, 310, 323 & 331---Criminal Procedure Code (V of 1898), Ss.345 & 561-A---Compounding of offence---Diyat---Determining factors---Payment in instalments---Accused was convicted under S.302(b) P.P.C. and was sentenced to imprisonment for life---During pendency of appeal parties entered into compromise and accused wanted to pay Diyat money in instalments---Validity---Courts were at liberty to determine amount of Diyat as they could deem fit but they were restricted by law not to award Diyat amount less than the value of 30630 grams of Silver---No maximum limit was prescribed, for quantum of Diyat---Courts could ascertain Diyat considering circumstances of the case, financial position of convict as well as that of legal heirs of victim---Conviction and sentence of accused was set aside by High Court on the basis of compromise effected between parties and acquitted him of the charge---High Court directed the accused to pay Diyat in equal monthly instalment of Rs.7657.50 for five years---High Court further directed that in case of default in payment of monthly instalment, accused would be remitted to custody as to suffer simple imprisonment till payment of Diyat---Appeal was allowed accordingly.

Government of Punjab, Lahore v. Abid Hussain and others PLD 2007 SC 315 rel.

Ch. Tariq Mahmood Farrukh for Appellant.

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

Date of hearing: 11th June, 2009.

PCrLJ 2009 LAHORE HIGH COURT LAHORE 1484 #

2009 P Cr. L J 1484

[Lahore]

Before Hasnat Ahmad Khan, J

ASHIQ HUSSAIN----Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION SADAR NAROWAL

DISTRICT SIALKOT and 6 others----Respondents

Writ Petition No.7492/Q of 2009, decided on 23rd April, 2009.

Penal Code (XLV of 1860)---

---Ss. 420, 468 & 471---Criminal Procedure Code (V of 1898), S.22-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Petitioner/accused stood named in F.I.R. with specific allegation of committing fraud and forgery---In facts and circumstances of the case, it could not be held in constitutional jurisdiction of High Court that allegations levelled in the F.I.R. were totally false---For coming to the said conclusion, a detailed investigation was required, a function which lay squarely within the domain of the Police---High Court could not perform the role of Investigator---F.I.R. could not be quashed simply on the ground that the civil litigation was pending adjudication between the parties---During the pendency of the civil suit on the basis of a document; which according to the complainant was a forged document, there was no bar against the registration of a criminal case---Investigation could not be throttled at the initial stage---Contention that after dismissal of complainant's application for registration of the case by the Ex-officio Justice of Peace, the Police could not register the case against accused, was also baseless---Constitutional petition having been found meritless, was dismissed, in circumstances.

Muhammad Shafi v. Deputy Superintendent of Police, Malik Gul Nawaz, Narowal and 5 others PLD 1992 Lah. 178; Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276; Muhammad Salim Matti v. Syed Safdar Ali Rizvi and 2 others 2006 SCMR 1957 and Muhammad Bashir v. Station House Officer Okara Cantt. and others PLD 2007 SC 539 rel.

Muhammad Akhtar Padda for Petitioner.

Northern Areas Chief Court

PCrLJ 2009 NORTHERN AREAS CHIEF COURT 544 #

2009 P Cr. L J 544

[Northern Areas Chief Court]

Before Sahib Khan, J

JABIR KHAN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous Nos.149, 150, 151 of 2008, decided on 2nd February, 2009.

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

----S. 497(2)---Offences Against- Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss.9/14---Penal Code (XLV of 1860), S.457---Bail, grant of---Further inquiry---Accused was behind the bars since long and police had not submitted challan against him---Accused had not been named in the F.I.R. and occurrence having allegedly taken place at night time, no body had been shown as eye-witness---Prosecution could not establish the value of Nisab required for enforcement of S.9 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, nor the required evidence as required by law for enforcement of said provision of law had been shown---Was yet to be seen whether S.9 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was applicable or not---Both S.14 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and S.457, P.P.C., did not fall under the Proviso-II of S.497, Cr.P.C.---Case against accused requiring further inquiry, he was admitted to bail, in circumstances.

PLD 1994 Pesh. 84; 1996 MLD 633; 2001 PCr.LJ 1982; PLD 2002 SC 590 and 1994 PCr.LJ 1724 ref.

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

----Ss. 497 & 512---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss.9/14---Penal Code (XLV of 1860), S.457---Bail, grant for-Delay in submitting challan of the cases---Police Investigator when asked about delay in submitting challan, he stated that since two co-accused had not yet been arrested, hence challan against accused could not be submitted---Validity---If one or more accused persons involved in a case could not be arrested or they had absconded for an indefinite period, then the arrested person/persons could not be kept behind the bars without any trial---Provisions of S.512, Cr.P.C. had especially provided for such situation---Bail was granted.

Muhammad Farooq Umar for Petitioner.

Malik Sher Baz Khan, D.A. Standing A.-G. for the State.

PCrLJ 2009 NORTHERN AREAS CHIEF COURT 573 #

2009 P Cr. L J 573

[Northern Areas Chief Court]

2009 P Cr. L J 75

[Peshawar]

Before Ghulam Mohyuddin Malik, J

BABER RAHMAN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous Nos.202 and 106 of 2008, decided on 18th August, 2008.

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

----S. 497---Bail, grant of---Procedure and principles---Appreciation of evidence and drawing the conclusion therefrom was the exclusive function of the Trial Court which could not be anticipated at bail stage---Impugned order of the court below had shown that it had made elaborate and deep assessment of the evidence which was not permissible at the time of disposal of bail application---Impugned order of the subordinate court was neither based on proper reasoning nor on correct exposition of law, which was open to exception.

PLD 1978 SC 265 rel.

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

----S. 497---Penal Code (XLV of 1860), S.365-A/34---Bail, refusal of---Overwhelming direct as well as circumstantial evidence was connecting the accused with the crime---Accused had been charged in the statement of eye-witnesses---Accused's own inculpatory confessional statement duly corroborated by recovery of incriminating articles and Bank record etc. was available on record---Reasonable grounds were present to believe that accused was guilty of the crime---Offence against accused was covered by the prohibitory clause of S.497, Cr.P.C.---Accused in circumstances did not deserve the concession of bail---Bail application was rejected to the extent of accused.

----S. 497(5)---Penal Code (XLV of 1860), S.365-A/34---Cancellation of bail, application for---Prosecution case against accused persons was a little bit on different footing than accused who was refused bail---Said accused persons had not been shown abducting the complainant--Accused persons had not been charged by the complainant in her statement for demanding ransom amount from her relatives, nor that they took her to the hotel in question---Grounds for the grant of bail and cancellation of bail were always different---Investigation in the case was almost complete, trial was likely to commence in the near future and no proof or allegation was available as to misuse of privilege of bail nor there was an apprehension of their abscondence---Request of the complainant for cancellation of bail of accused persons, was not acceded to, in circumstances.

M. Arshad Awan for Petitioner.

Alamgir Khan, A.A.-G. for the State.

Khalid Anwar Afridi for the Complainant.

Date of hearing:11th August, 2008.

PCrLJ 2009 PESHAWAR HIGH COURT 91 #

2009 P Cr. L J 91

[Peshawar]

Before Hamid Farooq Durrani and Syed Mussadiq Hussain Gillani, JJ

NIAZ MUHAMMAD----Appellant

Versus

UMAR ALI and another----Respondents

Criminal Appeal No.46 and Criminal Revision No.52 of 2006, heard on 26th August, 2008.

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

----S. 302(b)---Juvenile Justice System Ordinance (XXII of 2000), S.7---Appreciation of evidence---Plea regarding juvenility of accused was raised for the first time in the final arguments before the Trial Court---Accused had neither agitated such point of juvenility at the time of investigation nor before the Magistrate at the time of submission of challan, nor at bail stage and nor before the Trial Court throughout the trial---Even on the age recorded in the statement under S.342, Cr.P.C. no objection was raised---"Form-Bay" and School Leaving Certificate, were not confidence inspiring documents, because attested copies thereof were not available on record; and in the photo copies of attested copies, over-writing was found in the year of birth of accused---Age of accused was recorded as 21 years in the statement under S.342, Cr.P.C., which was part of the judicial record and presumption of correctness was attached to it, unless rebutted---Dying declaration of deceased which was recorded in presence of the Medical Officer, had been corroborated by unimpeachable testimony of two eye-witnesses---Neither the deceased nor the eye-witnesses, had any malice or grudge against accused---Dying declaration was also not proved to be the result of prompting or consultation---Circumstantial evidence also corroborated the dying declaration as well the statements of eye-witnesses---Non-performance of post-mortem of deceased was not fatal to the case of prosecution, as it was established that the death was material proximate and direct cause of injuries sustained by the deceased with firearm---Even otherwise in the area of incident, post-mortem was not conducted on the request of the legal heirs of the deceased and only medico-legal report was relied upon---No evidence was brought on record to establish that death of deceased was the result of medical or post surgical negligence---Case against accused, in circumstances, was proved beyond any shadow of doubt; and he was rightly convicted by the Trial Court---Motive had not been brought on record, but due to absence of motive other overwhelming evidence could not be brushed aside---Young age of accused and absence of motive were not always considered as mitigating circumstances and reasons for reduction of sentence---Parties in the case, however had intentionally suppressed the motive and concealed the facts---Capital punishment, in circumstances, would not be justified---Conviction and sentence of accused recorded by the Trial Court, were maintained.

2001 YLR 3096; 2000 SCMR 1758; 1999 SCMR 2652; 2002 SCMR 629; PLD 2005 Pesh. 172; 2002 YLR 753(0; 2008 SCMR 796(d); 1999 SCMR 1411; 1998 SCMR 1778 and 2003 PCr.LJ 2021 ref.

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

----S. 7---Determination of age of a person---If a question would arise about the age of a person before the Juvenile Court, it would record the findings after such inquiry, which would include the medical report of the age of the child---Provision of S.7 of Juvenile Justice System Ordinance, 2000, empowered the Juvenile Court only to determine the age, however, no embargo had been placed on the powers of the Sessions Court for determining the age of a person during the trial, when it was challenged.

Khawaja Muhammad Khan Guzu for Appellant.

F.M. Sahir for the State.

Abdul Fayyaz Khan for the Complainant.

Date of hearing: 26th August, 2008.

PCrLJ 2009 PESHAWAR HIGH COURT 176 #

2009 P Cr. L J 176

[Peshawar]

Before Muhammad Alam Khan, J

HALEEM KHAN and another----Petitioners

Versus

THE STATE and another----Respondents

Criminal Miscellaneous Nos.993 and 1107 of 2007, decided on 4th February, 2008.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/324/114---West Pakistan Arms Ordinance (XX of 1965), S.13---Cancellation of bail, application for---Co-accused, who was granted bail, had been given the .role of Lalkara in the F.I.R. and no overt act had been attributed to him---Said co-accused, in circumstances, had rightly been extended the concession of bail, which called for no interference---In a bail cancellation application, strong evidence had to be shown that accused had misused the concession of bail, which aspect was lacking in the case---Application for cancellation of bail was dismissed, in circumstances.

Tariq Zia v. The State 2003 SCMR 958; Muhammad Asad v. State 2004 YLR 1732 and Mazhar Ali v. State 2007 PCr.LJ 925 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324/114---West Pakistan Arms Ordinance (XX of 1965), S.13---Bail, refusal of---Case of accused was somewhat different from his co-accused as he was directly charged in the F.I.R. for effectively firing at the deceased and the complainant---Accused was rightly refused the concession of bail by the lower courts---Bail application was rejected by High Court, in circumstances.

Kamran Haider v. The State 1996 PCr.LJ 1902; Imtiaz Ahmad and others v. The State PLD 1997 SC 545; Munawar v. The State 1981 SCMR 1092; Shah Muhammad v. The State 1999 PCr.LJ 1105 and Noroz Khan v. The State.1999 PCr.LJ 698 ref.

----S. 497---Penal Code (XLV of 1860), Ss.302/324/114---West Pakistan Arms ordinance (XX of 1965), S.13---Bail, grant of---Role of co-accused was that of catching hold of deceased---Said co-accused was empty handed and was attributed no act of actual firing---Co-accused, on the ground of age was not entitled to bail because calculating his age from date of birth of school certificate, at the time of commission of offence he was above sixteen years; however, as he was not attributed any actual role of firing, he was entitled to concession of bail.

Shahid v. The State 1994 SCMR 393 and Mahmood Akhtar and others v. Haji Nazir and others 1995 SCMR 310(b) ref.

Sahibzada Asad Ullah for Petitioners.

Saeed Khan, A.A.-G. for the State.

PCrLJ 2009 PESHAWAR HIGH COURT 184 #

2009 P Cr. L J 184

[Peshawar]

Before Ghulam Mohy-ud-Din Malik, J

Syed SANOBAR SHAH----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous Nos.125 of 2008 and 382 of 2006, decided on 16th October, 2008.

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

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Further inquiry---Time of occurrence being late Ishha Vela', the identification of the assailants, the attribution of specific role to one of them from such a considerable distance at night time were questions to be thrashed out at the trial---Enquiry Officer had totally disbelieved the prosecution story as set up in the F.I.R. and by the eye-witnesses---Two prosecution witnesses had given different stories about the occurrence; they had stated that afterAftaar in the late evening when they learnt that dry grass of their uncle had been set at fire, they went to extinguish the fire and on way back they were fired at by accused---Investigating Officer during spot inspection could not get any evidence of burnt grass to believe the alleged eye-witnesses of the occurrence---All attending facts and circumstances of the case had suggested that no reasonable grounds, beyond doubt, were connecting accused with the crime; and that prosecution case being open to further inquiry, accused deserved concession of bail---Accused was admitted to bail, in circumstances.

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

----S. 497(5)-Penal Code (XLV of 1860), S.302/34---Cancellation of bail, petition for---Co-accused who had been granted bail, was charged with ineffective firing; no empty was recovered from the place of his alleged presence; nor any other legal corroborative evidence was found to connect co-accused with the crime---No proof was available to the effect that he, after his release on bail had misused the liberty---Petition for cancellation of bail, was rejected, in circumstances.

Nisar Hussain Shah for Petitioner.

Munir Bhatti for the State

M. Akbar Khan for the Complainant.

Date of hearing; 16th October, 2008.

PCrLJ 2009 PESHAWAR HIGH COURT 193 #

2009 P Cr. L J 193

[Peshawar]

Before Ghulam Mohy-ud-Din Malik, J

TAJ MUHAMMAD----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No. Nil, decided on 13th October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/34---Bail, grant of---Further inquiry---Two separate F.I.Rs. were lodged by rival parties against each other---Cases seemed to be outcome of same transaction as the series of acts were so connected together as to form a part of one incident, though with different versions---During the preliminary investigation the Investigating Officer amongst others had recorded statements of about five persons as eye-witnesses of the occurrence, but all of them had sworn affidavits to the effect that they had not seen the occurrence as alleged and that they had not made any statement against accused---Site plan in the case was contrary to the allegations made in the F.I.R.---Taking into considerations all attending facts and circumstances of the case and without dilating upon the merits of case in detail, it would be seen at the trial, as to what actually happened at the spot; who initiated the fight and who acted in self-defence---In such-like situation, ordinary rule was that for determination as to who was at fault and aggressor, bail should be granted, pending further enquiry into the matter---Accused was admitted to bail, in circumstances.

1996 SCMR 978 and 1845; 1979 SMR 30; PLD 1996 SC 241; 2002 MLD 1502 and 2007 YLR 388 rel.

M. Saeed Akhtar for Petitioner.

Ravez Akhtar for the State.

Fazal-e-Haq for the Complainant.

Date of hearing: 10th October, 2008.

PCrLJ 2009 PESHAWAR HIGH COURT 197 #

2009 P Cr. L J 197

[Peshawar]

Before Ghulam Mohy-ud-Din Malik, J

AMIR and others----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.262 of 2008, decided on 26th September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.377/511---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Bail, grant of---Complainant in his report; no doubt had charged accused for committing sodomy upon him, but the medical report did not support him---If the victim in a case of unnatural offence, was not accustomed to sodomy and being a teenager and un-consenting party, there must be abrasions on the skin near the anus, feeling pain in walking, lacerations of the mucous membrane within the anus with effusion of blood etc.---In the present case the victim was reported to be a child of tender age while active agent, a healthy and grown up male, then in case of commission of sodomy and penetration, there should have been extensive and well defined injuries on the victim---Penetration had not taken place, in the case which was one of the most important ingredients to constitute the carnal intercourse punishable under S.377, P.P.C.---Complainant had effected a compromise with accused by furnishing written compromise in the shape of affidavit duly attested---Accused was directed to be released on bail, in circumstances.

Masud-ur-Rehman Tanoli for Petitioner.

Ravez Akhtar for the State.

Complainant with real uncle present.

Date of hearing: 26th September, 2008.

PCrLJ 2009 PESHAWAR HIGH COURT 312 #

2009 P Cr. L J 312

[Peshawar]

Before Muhammad Alam Khan, J

SUHAIL----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.1391 of 2007, decided on 1st February, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.365-B---Bail, grant of---Further inquiry---Age of alleged abductee had been admitted to be 25/26 years---Fact had also been admitted that alleged abductee was engaged to one of accused who, with the help of his brother and father, had persuaded alleged abductee and had abducted her---Such fact would be determined by the Trial Court to find out whether case was one of elopement or abduction---At bail stage without commenting upon the merits of the case, so that it might not prejudice the case of either party, it would suffice to say that accused had made out a case for further inquiry, which was discernible from the facts and circumstances of the case---Accused was ordered to be released on bail, in circumstances.

Ghulam Nabi and others v. State and another 1984 PCr.LJ 675; Peeran Ditta v. The State 1983 PCr.LJ 195; 1987 MLD 3100 and Muhammad Akbar v. The State 1987 MLD 3125 ref.

Farhad relative and Saeedul Akbar Clerk for Petitioner.

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

Complainant in person.

Date hearing: 1st February, 2008.

PCrLJ 2009 PESHAWAR HIGH COURT 351 #

2009 P Cr. L J 351

[Peshawar]

Before Muhammad Alam Khan, J

Haji MUHAMMAD NOOR----Petitioner

Versus

THE STATE and another through L.Rs.----Respondents

Criminal Miscellaneous Bail Petition No.33 of 2008, decided on 6th May, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Bail, refusal of---Record had indicated that accused was directly nominated by the complainant and witness in their supplementary statements for committing the offence---Snatched/ stolen motorcar was found in possession of accused who had afterwards returned the same, but on payment of ransom---Compromise effected by the complainant with accused and other co-accused, was of no help to accused because the offence was not compoundable---Prayer for bail of accused had once been rejected by the High Court on merits from the available facts and circumstances of the case---Prima facie case existed against accused which did not entitle him to the concession of bail.

Naseer Ahmad v. The State PLD 1997 SC 347; Muhammad Yaqoob v. The State 2006 SCMR 1265(2) and Muhammad Rawab v. The State 2004 SCMR 1170 ref.

Sultan Shahryar Khan Marwat for Petitioner.

Tariq Aziz Baloch, D.A.-G. for the State.

Hamayun Khan Wazir for L.Rs. of deceased.

Date of hearing: 25th April, 2008.

PCrLJ 2009 PESHAWAR HIGH COURT 370 #

2009 P Cr. L J 370

[Peshawar]

Before Muhammad Alam Khan, J

MUHAMMAD JABBAR----Petitioner

Versus

SHAH DARAZ KHAN and another----Respondents

Criminal Miscellaneous B.A. No.224 of 2008, decided on 3rd December, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Further inquiry---Accused had from the very initial stage taken the plea of alibi which was thoroughly investigated by the Investigating Officer who had found accused innocent and released him under S.169, Cr.P.C.---Such release of accused though subsequently was set aside by the High Court in the quashing petition, but accused was not debarred from moving a fresh application under S.497, Cr.P.C.---Statements of independent witness recorded under S.161, Cr.P.C. and S.164, Cr.P.C., had brought the case of accused within purview of further inquiry---Plea of alibi raised by accused and investigated by the Investigating Agency could not be brushed aside outrightly, while considering the prayer of bail of accused---Placing accused in Column No.2 of the challan was another circumstance which could be taken into consideration for release of accused on bail---Even lightest doubt, if existed in prosecution story, the benefit of same would go in favour of accused---Accused in circumstances was admitted to bail.

Muhammad Mumtaz and 3 others v. The State 1988 SCMR 1452; Malik Muhammad Saleem and others v. Arshad Siddiq and 2 others 1997 SCMR 1829; Qaiser Mehmood v. Muhammad Aslam and others 2004 PCr.LJ 1135; Waqar-ul-Haq v. The State 1985 SCMR 974; Bahadur v. Muhammad Latif and others 1987 SCMR 788; Malik Muhammad Saleheen and others v. Arshad Siddique and 2 others 1997 SCMR 1829; Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Muhammad Shabbir v. The State 1997 PCr.LJ 1570 and Muhammad Shafiq and another v. The State PLD 1990 Pesh. 118 ref.

Sanaullah Khan Gandapur and Pir Liaquat Ali Shah for Petitioner.

Farooq Akhtar for the State.

Gohar Zaman Khan Kundi for the Complainant.

Date of hearing: 1st December, 2008.

PCrLJ 2009 PESHAWAR HIGH COURT 389 #

2009 P Cr. L J 389

[Peshawar]

Before Muhammad Alam Khan, J

MUHAMMAD ZAKRIYA and another----Petitioners

Versus

THE STATE and another----Respondents

Criminal Miscellaneous Nos.288, 289 and 291 of 2008, decided on 2nd May, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.347/506/148/149---Bail, grant of---Police initially registered the case under Ss.365/506/148/149, P.P.C., but subsequently S.365, P.P.C. was changed into S.347, P.P.C.---Section 365, P.P.C. as well as the changed Section 347, P.P.C., were not compoundable and mere compromise would not entitle accused to the concession of bail---Offences of which accused were charged did not come within the prohibitory clause of S.497, Cr.P.C. as maximum sentence provided for the offence under S.365, P.P.C. was §even years and under S.347, P.P.C. was three years---In cases which were not hit by prohibitory clause of S.497, Cr.P.C., the grant of bail was a rule and refusal of the same was an exception to that rule---Statement of the complainant recorded on oath had also mitigating effect---Accused were admitted to bail, in circumstances.

Tariq Afridi for Petitioner.

Khawaja Muhammad Khan Gara and Jalaluddin Akbar Azam for Respondents.

Malik Manzar Hussain for the State.

Date of hearing: 2nd May, 2008.

PCrLJ 2009 PESHAWAR HIGH COURT 401 #

2009 P Cr. L J 401

[Peshawar]

Before Muhammad Alam Khan, J

QUTUB KHAN----Petitioner

Versus

THE STATE and 3 others----Respondents

Criminal M.B. No.51 of 2008, decided on 6th May, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324/427/337-F(ii)/34---Bail, grant of---Further inquiry---Accused had been belatedly nominated after delay of almost twenty six days of the occurrence by the injured in supplementary statement recorded under S.161, Cr.P.C., but he had not disclosed the source of information with regard to the involvement of accused in the case---Complainant and the other injured had charged unknown persons in the initial report---Both said injured had sworn an affidavit and exonerated accused from the charge---Injuries allegedly sustained by all the three injured were on non-vital parts of their bodies---Prima facie, from the available facts and circumstances of the case brought on record, case of accused fell within the ambit of further inquiry entitling him to the concession of bail---Accused was admitted to bail, in circumstances.

Aurangzeb v. The State 1999 PCr.LJ 230; Raja Rafaqat Usmani v. Umar Farooq Abasi 2002 PCr.LJ 1262; Nisar v. The State 2004 PCr.LJ 555 and Muhammad Arshad alias Achhoo v. The State 2007 YLR 2102 ref.

Muhammad Karim Anjum and Rashidullah Kundi for Petitioner.

Sanaullah Shamim Gandapur, D.A.-G. for the State.

Respondent No.4 in person.

Date of hearing; 6th May, 2008.

2009 P Cr. L J 604

[Peshawar]

Before Muhammad Alam Khan and Hamid Farooq Durrani, J

SAID MUHAMMAD----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.75 of 2008, decided on 4th December, 2008.

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

----Art. 43---Confessional statement of co-accused, admissibility of--Exculpatory confessional statement of acquitted co-accused, was inadmissible in view of provisions of Art.43 of Qanun-e-Shahadat, 1984.

(b) Explosive Substances Act (XI of 1908)---

----Ss. 5 & 5-A---Anti-Terrorism Act (XXVII of 1997), Ss.7(1) & 19(8-B)---Non-obtaining of sanction of competent authority---Effect---Trial had been conducted in violation of S.7 of Explosive Substances Act, 1908 and without requisite sanction of Provincial Government---Accused was acquitted in circumstances.

----S. 510---Qanun-e-Shahadat (10 of 1984), Art.85---Report of Bomb Disposal Squad---Admissibility in evidence---Scope---Report of Bomb Disposal Squad was not a `public document', hence, not admissible in evidence.

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

---Art. 129(e)---Presumption---Material witness had been abandoned and withheld---Effect---Adverse inference, against non-production of witness should have been drawn.

(e) Explosive Substances Act (XI of 1908)---

----Ss. 5 & 5-A---Anti-Terrorism Act (XXVII of 1997), Ss.7(1) & 19(8-B)---Penal Code (XLV of 1860), S.34---Appreciation of evidence---Exculpatory confessional statement of co-accused, was inadmissible in evidence---Judgment, in the present case, was based on the statement of complainant which was based only on hearsay---Case property was neither produced before the court nor exhibited---Non-production of the case property had shown doubt on the credentials of the prosecution story which had shaken foundation of the case---Conviction of accused was the result of presumption and surmises; material contradictions were appearing in the prosecution case and the very material witnesses had been abandoned and withheld---Adverse inference against the prosecution should have been drawn---Prosecution had not been able to prove its case against accused beyond any reasonable doubt---Accused was acquitted in circumstances.

Pir Liaqat Ali Shah for Appellant.

Sanaullah Shamim Gandapur, D.A.-G. for the State.

Date of hearing: 4th December, 2008.

PCrLJ 2009 PESHAWAR HIGH COURT 629 #

2009 P Cr. L J 629

[Peshawar]

Before Muhammad Alam Khan and Syed Yahya Zahid Gillani, JJ

SAIF-UR-REHMAN----Appellant

Versus

THE STATE----Respondent

Criminal Jail Appeal No.135/J and Criminal Revision No.39 of 2005, decided on 25th February, 2009.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Report was lodged after two and a half hours from the occurrence---Such delay in lodging report being a natural consequence, had sufficiently been explained by the prosecution in the evidence---Neither of the eye-witnesses was related to either party nor had got any cordial relation with any one of them; they were cross-examined at length, but nothing was brought on the record to show their interest with the deceased party or any motive to falsely charge accused; their testimony was confidence inspiring; and no inherent flaw was found therein---Presence of. said eye-witnesses could not be doubted as at the relevant time they were present in the lands in vicinity of their village---Eye-witness account was not in conflict with the medical evidence---Even if the eye-witness account was in conflict with medical evidence, the confidence inspiring ocular account could not be overlooked---Prosecution, in circumstances, had proved its case beyond any shadow of reasonable doubt---Guilt of accused had been proved by the testimony of two disinterested eye-witnesses whose statements could not be shattered in cross-examination---Accused, in circumstances, was rightly held guilty of the offence charged with---Evidence brought on record commensurated with the sentences awarded to accused because the family dispute existed in the background of the occurrence; and the exact cause of the offence was shrouded in mystery; and it was not discernible from the record of the case---No ground was available for enhancement of the sentence awarded to accused.

Yaqoob Shah v. The State PLD 1976 SC 53; Muhammad Hanif v. The State PLD 1993 SC 895; Ghulamullah and another v. The State 1996 SCMR 187; Abdur Rehman v. The State 1998 SCMR 1778; Wahid v. The State PLD 2002 SC 62; Saeedullah Khan v. The State 1986 SCMR 1027; Muhammad Khan and another v. The State 1999 SCMR 1220; Muhammad Ilyas and another v. The State 1993 SCMR 1602; Riaz Masih alias Mithoo v. The State 1995 SCMR 1730 and Hussain v. The State 2006 PCr.LJ 934 rel.

Muhammad Iqbal Khan Kundi for Appellant.

Farooq Akhtar for the State.

Allah Nawaz for the Complainant.

Date of hearing: 11th February, 2009.

PCrLJ 2009 PESHAWAR HIGH COURT 642 #

2009 P Cr. L J 642

[Peshawar]

Before Muhammad Alam Khan, J

HUSSAIN BAKHSH----Appellant

Versus

MUREED KHAN and 5 others----Respondents

Criminal Appeal No.78 of 2006, decided on 16th December, 2008.

Criminal Procedure Code (V of 1898)---

----S. 417---Penal Code (XLV of 1860), Ss.324/382/148/149---Appeal against acquittal---Case of the prosecution was full of doubt and inherent defects due to which it had not been able to prove its case against accused beyond any shadow of reasonable doubt---Basic foundation of the prosecution case was the lodging of the F.I.R. and it was not proved on record as to who lodged the same---Case of the prosecution on that material point was shattered and had no legs to stand---Prosecution case further became doubtful and unbelievable when prosecution witnesses stated in the court that they were first taken to the police station and then to the hospital, but neither any report was lodged at the police station nor even their injury sheets were prepared---Report, in circumstances, was made in the emergency room of the Civil Hospital after due deliberation and consultation, which too was delayed by about 3/4 hours---Version of the complainant/appellant was also not supported by the medical evidence---Case of the prosecution was very poorly investigated due to which it also fell to the ground---Site plan was doubtful as it was prepared on the following day of occurrence, while the recovery memo. was prepared on the day of incident and there was no mention that on whose pointation it was prepared---Prosecution story was not corroborated with the site plan and recovery memo.---Empties recovered from the spot were not sent to Forensic Science Laboratory to establish as to whether these were fired from one or different weapons---Nothing was available on record about the blood-stained clothes of the injured as to whether those were taken into possession and sent to Forensic Science Laboratory to match the same with the blood recovered from the spot---Neither the complainant nor the other eye-witnesses of the occurrence had mentioned about the motive except the oral altercation---Prosecution case was full of doubts and dents due to which it had failed to prove the guilt of accused in the commission of crime---Trial Court in circumstances had rightly acquitted accused persons to which no exception could be taken by the High Court---Once an accused was acquitted by a court of competent jurisdiction after due trial, he would earn the presumption of double innocence and unless strong and exceptional grounds existed for interference in the order of acquittal, it could not be disturbed easily which were lacking in the case.

M. Ismail Khan Alizai and Noor Gul Khan Marwat for Appellant.

Ghulam Hur Khan for Respondents.

Farooq Akhtar for the State.

Date of hearing: 16th December, 2008.

PCrLJ 2009 PESHAWAR HIGH COURT 762 #

2009 P Cr. L J 762

[Peshawar]

Before Muhammad Alam Khan and Syed Yahya Zahid Gilani, JJ

LAL KHAN----Appellant

Versus

THE STATE and another----Respondents

Criminal Appeals Nos.91, 84 and Criminal Revision No.19 of 2007, decided on 18th March. 2009.

Penal Code (XLV of 1860)---

----Ss. 302/324/34---Appreciation of evidence---Impugned judgment of the Trial Court whereby accused was convicted and sentenced, was not in consonance with the direction of the High Court given in the remand order to the effect that the cases be disposed of on the basis of respective evidence led by the parties---Trial Court had drawn conclusion on crucial points by referring documents of the other case registered vide counter F.I.R. without there being copies of the relevant record exhibited in the evidence of the case---Conclusion drawn by the Trial Court was not based on admissible evidence available on the present record; and it being erroneous, could not be adverted to because that conclusion had been drawn on the basis of record of another case---Decision of the Trial Court about the plea of accused regarding cross-case and determination of veracity of eye-witnesses was illegal being based on reference to the record of another case and it had prejudiced accused; because there were decisions on crucial points directly concerning the conviction and acquittal of accused---Judgment. in circumstances stood vitiated---Retrial of accused was directed so that the parties could avail opportunity of exhibiting the copies of relevant documents from the record of counter case to avail any legal benefit therefrom---Conviction of accused was set aside and case was remanded to the Trial Court for retrial of accused strictly in accordance with law.

AIR 1933 Mad. 367; Khair Muhammad. Pir Wali Muhammad and others v. Emperor AIR 1940 Lah. 466; The State v. Bashir Ahmad and another PLD 1963 (W.P.) Kar. 242; Syed Rahim Bakhsh Shah v. Ghaus Bakhsh Shah and 22 others PLD 1967 Lah. 932; Pehlwan and 4 others v. The State PLD 1975 Kar. 84 and Muhammad Gulzar v. Muhammad Ashraf and 3 others 1981 SCMR 435 ref.

Wali Khan Afridi and Sultan Shahryar Khan Marwat for Appellant.

Farooq Akhtar for the State.

Anwar-ul-Haq for the Complainant.

Date of hearing: 10th February, 2009.

PCrLJ 2009 PESHAWAR HIGH COURT 797 #

2009 P Cr. L J 797

[Peshawar]

Before Said Maroof Khan and Shahji Rahman Khan, JJ

NOOR MUHAMMAD----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.806 and Murder Reference No.30 of 2007, decided on 25th March, 2009.

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

----S. 302(b)---Appreciation of evidence---Dying declaration of deceased was recorded by Police Officer without obtaining fitness certificate from the Doctor in view of the fatal and critical injuries sustained by the deceased---Dying declaration was recorded in presence of close relatives of the deceased, wherein neither the time of occurrence was given nor any eye-witness was named---Dying declaration had suppressed the injuries sustained by wife of absconding accused and registration of cross-case against deceased and brother of absconding prosecution witness---Possibility of outside prompting, in the attending circumstances, could not be ruled out when the dying declaration was not corroborated by any independent piece of evidence and registration of cross-case of the same date, time and place was ignored---Counsel for the State was not in a position to explain as to why the eye-witnesses and investigators concealed and suppressed the fire-arm injury to the wife of absconding accused, despite registration of cross-case---Ocular evidence was furnished by the wife of deceased, but her name and that of abandoned prosecution witness, were not mentioned in the dying declaration as eye-witness of the occurrence---Wife of absconding accused had also given a different motive for the occurrence than that mentioned in the Murasila by deceased where he was injured---Statement of widow of the deceased could not be believed as an eye-witness of the occurrence because of infirmities and contradictions in her statement---Not a single empty was recovered from the spot and the recovery of blood stained earth from the spot and blood stained clothes of deceased taken into possession by Investigating Officer by itself did not connect accused with the commission of the offence when ocular account had already been disbelieved---Prosecution having failed to prove its case against accused beyond any reasonable doubt, accused was entitled to the benefit of doubt---Conviction and sentence passed by the Trial Court were set aside and accused was acquitted of the charge and was released.

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

----Art. 46---Dying declaration---Sanctity was attached to the dying declaration, because a dying man was not expected to tell lies, but being weak kind of evidence it required close scrutiny and corroboration---Some of the well known tests for determining the genuineness of dying declaration were as to whether it rang, true, whether the dying man was capable of making it; whether it was free from outside prompting; and was not inconsistent with other evidence and facts and circumstances of the case.

PLD 2006 SC 255; 1997 SCMR 449 and PLD 1978 SC 298 ref.

----Medical evidence---Medical evidence could confirm the ocular evidence with regard to the seat of injuries, nature of injuries, kind of weapon used in the occurrence, but it would not connect accused with the commission of the crime.

Asadullah Khan Chamkani for Appellant.

Muhammad Azam Khan and Saadullah Khan Khalil for the State.

Date of hearing: 25th March, 2009.

PCrLJ 2009 PESHAWAR HIGH COURT 811 #

2009 P Cr. L J 811

[Peshawar]

Before Ghulam Mohyud Din Malik and Zia-ud-Din Khattak, JJ

STATE through Advocate-General, N. -W. F. P., Peshawar----Appellant

Versus

SHUAIB AYUB TANOLI----Respondent Criminal

Appeal No.59 of 2001, decided on 20th January, 2009.

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

----Ss. 410 & 417---Appeal against conviction and appeal against acquittal---Standard of assessing evidence---Standard of assessing evidence in appeal against acquittal, was quite different from that of appeal against conviction and so was between appraisement of evidence in the appeal against conviction and in appeal against acquittal---In appeal against conviction appraisal of evidence was done strictly and in the appeal against acquittal, such rigid method was not to be applied as already finding of acquittal was given by the Trial Court after analysis of the record---In the acquittal appeal, interference was made only when it appeared that there had been gross misreading of the evidence which amounted to miscarriage of justice---Ordinary scope of appeal against acquittal was considerably narrow and limited.

1995 SCMR 635 ref.

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

----Ss. 302/324---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal---Matter was reported to the Police after a delay of one hour without any explanation---Trial Court had rightly observed that lodging of report after one hour delay was a circumstance which could not exclude the possibility of false implication of accused as a result of consultation---Unexplained delay in lodging F.I.R. had led to suspicion and reflected adversely on the prosecution case---Delay of one hour in lodging the report, in circumstances had assumed great significance so far as presence of the complainant at spot was concerned---Preliminary investigation was conducted first and then the report was lodged when the complainant came into contact with the Investigating Officer rendering the prosecution case doubtful---At the time of occurrence or when statement of other eye-witness was recorded by the Police and even after completion of investigation or at any occasion during the investigation, said eye-witness. did not name accused till his evidence was recorded at the trial, which could only be treated as dishonest improvement---Identification of accused remained doubtful---Motive leading to the incident had been denied by accused, which had not been satisfactorily explained---No infirmity, legal or otherwise was found in the impugned judgment of acquittal passed by the Trial Court, which could justify interference.

1992 SCMR 2088 ref.

Abbas Sangeen, D.A.-G. for the State.

Qazi Muhammad Arshad for Respondent.

Date of hearing: 20th January, 2009.

PCrLJ 2009 PESHAWAR HIGH COURT 826 #

2009 P Cr. L J 826

[Peshawar]

Before Muhammad Alam Khan and Syed Yahya Zahid Gillani, JJ

Sahibzada SIBGHATULLAH----Appellant

Versus

THE STATE and another----Respondents

Criminal Appeal No.85 of 2007, decided on 18th March, 2009.

Penal Code (XLV of 1860)---

----Ss. 324/148/149/337-F(v)---Appreciation of evidence---F.I.R., site plan and relevant documents, were not brought on record of the case, but despite that same were considered by the Trial Court, which were not warranted under the law---No bar existed on joint trial with respect to two connected cases, but when the documents in one case were to be used as evidence in the other case, their copies must be brought on file of the other case and proved, which was lacking in the case---Trial Court had drawn conclusion from the evidence, facts and circumstances of connected case without exhibiting copies on record---Such were not mere causal references, but substantial conclusion on which the conviction of accused was based which was illegal---Co-accused were acquitted through impugned judgment, but no appeal having been filed against their acquittal same had attained finality---Impugned judgment to the extent of conviction of accused, passed by the Trial Court, was set aside and case was remanded to the Trial Court for trial de novo.

AIR 1933 Madras 367; Khair Muhammad and others v. Emperor AIR 1940 Lah. 466; The State v. Bashir Ahmad and another PLD 1963 (W.P) Kar. 242; Syed Rahim Bakhsh Shah v. Ghaus Bakhsh Shah and 22 others PLD 1967 Lah. 932; Pehlwan and 4 others v. The State PLD 1975 Kar. 84 and Muhammad Gulzar v. Muhammad Ashraf and 3 others 1981 SCMR 435 ref.

Anwarul Haq for Appellant.

Farooq Akhter for the State.

Sultan Shahryar Khan Marwat and Wali Khan Afridi for Respondent No.2.

Date of hearing: 10th February, 2009.

PCrLJ 2009 PESHAWAR HIGH COURT 887 #

2009 P Cr. L J 887

[Peshawar]

Before Syed Yahya Zahid Gilani, J

Malik KHAIRAN alias UMAR KHAN----Appellant

Versus

THE STATE and another-Respondents

Criminal Appeal No.4 of 2007, decided on 27th April, 2009.

Penal Code (XLV of 1860)---

----Ss. 324/336/34---Criminal Procedure Code (V of 1898), Ss.367, 423(d) & 537---Appreciation of evidence--Error and omission in order---Accused and acquitted accused persons were charged in the Trial Court on two counts under S.324/34, P.P.C., first count was regarding effective firing on the complainant and second count of the charge was regarding ineffective firing on the husband of the complainant---During the trial prosecution produced evidence on both counts and the statements of accused recorded under S.342, Cr.P.C. had revealed that all three accused persons were questioned on both the counts in the charge; however, while recording the impugned judgment, the Trial Court had neither convicted nor acquitted accused under the second count of the charge pertaining to the ineffective firing on husband of the complainant---No decision was given on the second count of the charge which was violation of S.367, Cr.P.C., and not curable under S.537, Cr.P.C. being serious illegality on the simple ground that no decision was given by the Trial Court over the second count of the charge pertaining to ineffective firing over the husband of the complainant---Case was remanded to the Trial Court under S.423(d), Cr.P.C. with the direction to re-write ,judgment after listening arguments of the counsel for the parties on merits, strictly according to law.

Farukh Sayar v. Chairman NAB 2004 SCMR 1=2004 SCJ 117(b) and (c) ref.

Gohar Zaman Khan Kundi for Appellant.

Farooq Akhtar for the Stale.

Anwar-ul-Haq for the Complainant.

Date of hearing: 27th April, 2009.

PCrLJ 2009 PESHAWAR HIGH COURT 915 #

2009 P Cr. LJ 915

[Peshawar]

Before Syed Yahya Zahid Gilani, J

MUNIR AHMAD---Petitioner

Versus

IHSAN ULLAH and another----Respondents

Cr. M. B. No.49 of 2009, decided on 27th March, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.365-A, 379, 511 & 337-J--Bail, refusal of---Accused was arrested on the spot---Prosecution story was though alleged to be unreasonable and unbelievable, but without going deep into the merits of the case, each criminal case had its own peculiar facts and circumstances---Two criminal cases could not be identical---Since human conduct differed, some cases could have a very different and extra peculiar circumstances---In the present case, though accused was alleged to be juvenile, but he was well connected with the crime of abduction for ransom on the basis of the statement of abductee coupled with circumstantial evidence and recoveries---Accused was not entitled to bail, in circumstances.

Farooq Akhtar for Petitioner.

Rabnawaz Awan for the Complainant.

Yousaf Haroon for the State.

Date of hearing: 27th March, 2009.

PCrLJ 2009 PESHAWAR HIGH COURT 945 #

2009 P Cr. L J 945

[Peshawar]

Before Syed Yahya Zahid Gilani, J

Haji RAB NAWAZ----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous Q.P. No.66 of 2008, decided on 27th March, 2009.

Criminal Procedure Code (V of 1898)---

---Ss. 561--A, 516-A & 517---Penal Code (XLV of 1860), Ss.420/468/471---Provincial Motor Vehicles Ordinance (XIX of 1965), Ss.23, 25 & 33---Quashing of order of confiscation of vehicle---Trial Magistrate acquitted petitioner on the ground that though the chassis number of the vehicle had been tampered and registration book had been found bogus, but it was not proved that the forgery was done by the petitioner- -Vehicle in question however was confiscated to State---Revision petition filed by the petitioner against said confiscation having been dismissed by the Appellate Court, petitioner had filed petition for quashing of order of confiscation of the vehicle---Validity--Alleged crime could not be proved against the petitioner who was acquitted in case and no appeal was preferred against his acquittal----When no mens rea was proved against someone, he could not be penalized in any manner---Petitioner was not only the last possessor of the vehicle, but he was also the only claimant of its ownership---In case of movable property, possession was the major proof of ownership---Despite of registration of case in the year 2003 and about five years having been passed, no rival claimant of the vehicle had emerged---Nothing was on record to suggest that vehicle was stolen---Only allegations against the vehicle were that its chassis number was tampered with and its registration book was bogus---For such objections, a vehicle could not be confiscated to State because under S.23 of the West Pakistan Motor Vehicles Ordinance, 1965, at the most, such vehicle could not be driven on road---Confiscation of vehicle in question being not justified in law, order of its confiscation was quashed, in circumstances.

Daulat Khan v. The State 2005 PCr.LJ 1952 rel.

Muhammad Ismail Khan Alizai for Petitioner.

Farooq Akhtar for the State.

Date of hearing: 20th March, 2009.

PCrLJ 2009 PESHAWAR HIGH COURT 955 #

2009 P Cr. L J 955

[Peshawar]

Before Muhammad Alam Khan and Syed Yahya Zahid Gilani, JJ

SIKANDAR KHAN and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.95 of 2008, decided on 26th March, 2009.

Penal Code (XLV of 1860)---

----Ss. 324/353/148/149---Anti-'Terrorism Act (XXVII of 1997), Ss.7(b), 9(b) & 25---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.22---West Pakistan Arms Ordinance (XX of 1965), S.13---Appreciation of evidence---Recovery of arms and ammunitions were made from the possession of accused persons which was duly witnessed by marginal witness of the recovery, who had fully supported the case of the prosecution---All the prosecution witnesses had faced the test of lengthy cross-examination by the defence, but nothing favourable to accused persons had come out from their mouths---Defence had failed to shatter the case of the prosecution---Prosecution witnesses were all unanimous on all material points---Medical Officer who had examined accused who resisted his arrest and during the scuffle between the Police party and accused had sustained injuries, his medico legal report also supported the case of the prosecution---Both accused persons and absconding co-accused had attempted to commit robbery and to loot the passengers sitting inside the Bus and they had created terror and panic in the whole surroundings area---Empties had been recovered during the spot inspection, which were sent to Forensic Science Laboratory for analysis and its report was in positive---Accused had failed to produce any documentary proof with regard to the recovered arms and ammunitions---Accused were reasonably linked with the commission of the offence charged with---Prosecution had been able to prove its case against accused persons beyond any shadow of reasonable doubt---Trial Court, in circumstances, had rightly appraised the evidence brought on record---Impugned judgment of the Trial Court based on correct legal footings and correct appraisal of evidence, could not be set at naught by High Court---Counsel for accused had failed to point out any illegality, irregularity, misreading or non-reading of evidence so as to create a dent in the case of the prosecution, or legal infirmity, perversity in the impugned judgment of conviction which was accordingly maintained.

Abdul Rashid and others v. The State 1994 PCr.LJ 186 and Hamid-ur-Rahman v. Said Rahman and 5 others 2005 PCr.LJ 53 rel.

Allah Nawaz for Appellants.

Sanaullah Shamim Gandapur, D.A.-G. for the State.

Date of hearing: 26th March, 2009.

PCrLJ 2009 PESHAWAR HIGH COURT 971 #

2009 P Cr. L J 971

[Peshawar]

Before Muhammad Alam Khan and Yahya Zahid Gilani, JJ

HATHI KHAN----Appellant

Versus

MUHAMMAD HASHIM KHAN and 2 others----Respondents

Criminal Appeal No.34 of 2009, decided on 7th May, 2009.

Penal Code (XLV of 1860)---

----Ss. 302/324/34---Criminal Procedure Code (V of 1898), S.417(2-A)---Appeal against acquittal---Benefit of doubt---Inordinate delay of 3-1/2 hours in lodging F.I.R.---Intervening period of time was consumed in consultation and deliberation before charging accused---Presence of witnesses on the spot at the time of occurrence, had become doubtful, in circumstances---Medical evidence also did not corroborate the statements of eye-witnesses---Nine empties of 7.62 bore recovered from the spot were sent to Forensic Science Laboratory, which had reported that those were fired from a single weapon, which could mean that assailant was one and who was that out of two nominated accused, was in mystery which further suggested that witnesses had not seen the occurrence---Benefit of doubt arising in the case would go to both accused persons---Deceased was an absconder and in normal course of life he must be having some weapon which should have been recovered near his body or the witnesses should have stated that it was taken away by assailants, but no evidence was available to that effect---Blood feud between the parties, eye-witnesses were interested witnesses and inordinate delay in lodging report, had clearly hinted that accused were charged after consultation and deceased being absconder was done to death in an unseen incident---Success of criminal appeal was not visible---Benefit of doubt was rightly extended to accused in their acquittal.

Sheikh Iftikhar-ul-Haq for Appellant.

PCrLJ 2009 PESHAWAR HIGH COURT 978 #

2009 P Cr. L J 978

[Peshawar]

Before Muhammad Alam Khan, J

QAMAR ZAMAN--- Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous B.C. No.43 of 2009, decided on 4th May, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.377/324/511---Bail, cancellation of---Accused was directly charged by the complainant for effectively firing two shots at him with which he was injured---Charge was duly supported by the un-natural lust of accused, who had made a clean breast confession before Judicial Magistrate about the charge and the weapon of offence was recovered at his pointation---Ossification test showed that age of accused had been determined to be 20 years, but even minority would not confer a license to a person to attempt at the lives of others---Offence was heinous and of moral turpitude---Tentative assessment of the materials, had brought the case within the prohibitory limb of S.497, Cr.P.C., disentitling accused to the concession of bail, which discretion had not been properly exercised by court below---Discretion exercised by the Trial Court in granting bail to accused was not warranted in the facts and circumstances of the case---Allowing application for cancellation of bail, impugned order whereby bail was granted to accused, was recalled---Accused present in the court, was ordered to be taken into custody and he was remanded to the judicial custody to face trial in due course of time.

Rehmat Ali for Petitioner.

Burhan Latif Khaisoori for Respondent.

Farooq Akhtar for the State.

Date of hearing: 27th April, 2009.

PCrLJ 2009 PESHAWAR HIGH COURT 1028 #

2009 P Cr. L J 1028

[Peshawar]

Before Tariq Parvez Khan, CJ

ARIF----Applicant

Versus

THE STATE and another----Respondents

Bail Application No.210 of 2009, decided on 6th April, 2009.

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

----S. 497---Penal Code (XLV of 1860), S.324/34---Bail, refusal of---Co-accused in the case was granted bail on the ground that cross-case was in existence and that said co-accused himself was injured and that his injuries were suppressed---Since on record reference was to the existence of cross case before passing order by the High Court, in the earlier bail application, it would be presumed that the ground of cross case was available, but was neither taken up nor pressed, that in circumstances would not be a fresh ground so far as case of accused was concerned---On the principle that ignorance of law was no excuse, it was held that if counsel appearing for accused in the first round of bail petition had no knowledge of the cross-case, it could not be beneficially interpreted in favour of accused, because it would be presumed that when the bail application in the first round was argued, record was before the court, which was open to inspection to the counsel for accused; and there was always reference in the record of the existence of a cross case, whether weak or strong---Accused had sought bail on the basis of principle of consistency, but circumstances of two cases of co-accused who was granted bail on ground of cross case in which he was injured and case of accused, were not at par---Rule of consistency would not be applicable to accused and he was not entitled to grant of bail, either on fresh ground or on the basis of principle of consistency---Bail application was dismissed.

(b) Words and phrases---

----Words "fresh ground", defined, interpreted and discussed elaborately.

Salah Muhammad v. State PLD 1986 SC 211 and State v. Zubair and 4 others PLD 1986 SC 163 ref.

Ms. Farhana Marwat for Applicant.

Fazal Rehman Khan, Addl. A.-G. for the State.

Date of hearing: 3rd April, 2009.

PCrLJ 2009 PESHAWAR HIGH COURT 1062 #

2009 P Cr. L J 1062

[Peshawar]

Before Muhammad Alam Khan and Syed Yahya Zahid Gilani, JJ

NAWAB KHAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.1 of 2007, decided on 9th April, 2009.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Accused was directly nominated for commission of offence by the complainant in his promptly lodged report---Accused had confessed his guilt before the Judicial Magistrate, which confession was proved to be voluntary in nature---Plea of insanity raised by accused, being afterthought, was without force and was not appealing to reason---Nothing was on record to show that accused was insane at the time of committing the crime and the opinion of the Medical Board reflected his mental condition after the occurrence---Accused had committed the brutal murder of his niece who was a minor baby of 5/6 months---Injury spot of the deceased baby had revealed that she was killed through strangulation---In view of the proved, voluntary and true judicial confession,. which though retracted, but was strongly corroborated by the circumstances and medical evidence as well as the statement of prosecution witness, who had personally delivered the baby to accused; and whose statement could not be shattered by cross-examination, the prosecution had been able to successfully prove its case against accused, while his only plea of insanity at the time of occurrence, was not proved---Insanity developed during trial was quite different from that at the time of occurrence---Nothing was available on record to show that accused or any of his relatives had raised such plea of insanity---Trial Court had correctly appreciated the evidence and had rightly drawn the impugned conclusion which was not open to interference by the High Court---Conviction and sentence awarded to accused by the Trial - Court was maintained.

Ch. Barkat Ali v, Major Karam Elahi Zia and another 1992 SCMR 1047; State v. Muhammad Naseer 1993 SCMR 1822; Ali Khan v. The State 1999 SCMR 955 and Imran Sharaf and 7 others v. The State 2001 SCMR 424 ref.

Gohar Zaman Khan Kundi for Appellant.

Sanaullah Shamim Gandapur, D.A.-G. for the State.

Zafar Nawaz Sikandri for the Complainant.

Date of hearing: 8th April, 2009.

PCrLJ 2009 PESHAWAR HIGH COURT 1085 #

2009 P Cr. L J 1085

[Peshawar]

Before Dost Muhammad Khan, J

ANWAR ZEB----Applicant

Versus

MUHAMMAD RIAZ and another----Respondents

Criminal Miscellaneous Bail Application No.397 of 2009, decided on 27th April, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Bail, grant of---Only evidence, weakest in nature at the moment available against accused was that the medical report did not confirm charring marks---One .30 bore pistol was used in the occurrence and the minimum and maximum range of charring in such a case was 6 inches to 9 inches---Whether a medical report of that nature would be sufficient for conviction of accused, was definitely a question mark---Other material was the presumption against accused because the deceased died due to bullet injury inside the house and he had to explain as to under what circumstances she died---In the case of circumstantial evidence all the pieces of evidence would make one chain and its one end would touch the dead body and the other the neck of accused---Said standard of evidence/materials were not available in the case---Let the Investigating Agency collect further evidence and if the Trial Court after recording cogent convincing evidence would find accused guilty, he could be convicted, but on the available materials he could not be refused bail on any legitimate ground---Accused was granted bail, in circumstances.

Khalid Javed Gillan v. The State PLD 1978 SC 256 and Manzoor and 4 others v. The State PLD 1972 SC 81 ref.

Noor Alam Khan for Petitioner.

Malik Manzoor Hussain for the State.

Faraz Khan for the Complainant.

Date of hearing: 27th April, 2009.

PCrLJ 2009 PESHAWAR HIGH COURT 1106 #

2009 P Cr. L J 1106

[Peshawar]

Before Syed Yahya Zahid Gilani and Muhammad Alam Khan, JJ

ABDUL QADOOS and another----Petitioners

Versus

SARWAR KHAN and 2 others----Respondents

Writ Petition No.158 of 2008, decided on 23rd April, 2009.

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

----Ss. 22-A(6) & 154---Penal Code (XLV of 1860), S.324/34---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Application filed by respondent to Ex-Officio Justice of the Peace under S.22-A(6), Cr.P.C. for registration of F.I.R. was accepted and F.I.R. was registered under S.324/34, P.P.C. about the alleged occurrence---Aggrieved by said registration of case, petitioners/accused persons had instituted constitutional petition for quashing said F.I.R.---Registration of case was directed simply on the ground that commission of a cognizable offence had been alleged, which was a valid ground---Registration of F.I.R. in a cognizable case was a legal requirement---Complainant who alleged commission of cognizable offence, not only had a right that his allegations should be recorded under S.154, Cr.P.C., but he also had a right that his allegations should be investigated into to take the case up to its logical and legal end---Accused could avail remedies within the parameters of the Code of Criminal Procedure, if he believed that he was innocent, and neither any case was made out against him, nor there was likelihood of his conviction and he deserved acquittal before proper trial for which the provisions of Ss.249-A & 265-K, Cr.P.C. had sufficiently provided him efficacious remedy---Constitutional petition had no substance for interference with impugned order which had been passed in accordance with law and lawful authority, within the four corners of jurisdiction vested in Ex-officio Justice of Peace.

Salahuddin Khan S.H.O. and 2 others v. Noor Jehan and another PLD 2008 Pesh. 53 ref.

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

----Art. 199---Constitutional jurisdiction---Scope---Power of judicial review should be exercised with necessary judicial restraint, essential for continuance of rule of law.

Brig. Rtd. Imtiaz Ahmad v. Government of Pakistan 1994 SCMR 2142 ref.

Salimullah Khan Ranazai for Petitioner.

PCrLJ 2009 PESHAWAR HIGH COURT 1172 #

2009 P Cr. L J 1172

[Peshawar]

Before Dost Muhammad Khan, J

INAYAT ALI----Petitioner

Versus

ARSHAD KHAN and another----Respondents

Criminal Miscellaneous No.300 of 2009, decided on 4th May, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.411---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail, grant of---Except some currency notes, neither the pistol nor any other articles belonging to the complainant were recovered from accused---Recovery of currency notes, was also a begging question---Accused and his co-accused had no previous history of car snatching or committing robberies---Accused along with co-accused remained in police custody; they were extensively interrogated and were subjected to police tactics, but they did not confess; and despite such long stay with the police, they were never put to identification parade which was a must---Challan had been submitted to the Trial Court on 17-12-2008, but not a single witness from the prosecution had been examined and no good reason was shown for such gross default although the police witnesses and the complainant all resided at a distance of a few kilometers from the premises, where the trial was being held---Major factors causing delay in disposal of bail application was the conduct of complainant party-Delaying tactics were consistently pressed into service in a well calculated manner to thwart the grant of bail and even the process in the trial of accused by deliberately avoiding the court process, not procuring counsel to plead its case well in time and also withholding witnesses from the Trial Court---Unnecessary adjournments obtained, certainly brought to halt the progress of inquiry or trial in the lower court and the process of investigation by the police in the case---Judicial Policy Making Committee headed by the Chief Justice of Pakistan had described the time limit for disposal of bail petitions and matters of alike nature, therefore, it had become more essential to reduce the scope of the privilege of the complainant party in such-like matters and to put it into the correct channels---Unnecessary delay having been caused in the disposal of the main case, accused was admitted to bail.

Bahlool Khattak for Petitioner.

Muhammad Alamgir Khan Durrani, D.A.-G. for the State.

Complainant in person.

Date of hearing: 4th May, 2009.

PCrLJ 2009 PESHAWAR HIGH COURT 1238 #

2009 P Cr. L J 1238

[Peshawar]

Before Jehanzaib Rahim and Shahji Rahman Khan, JJ

BEHROZ----Appellant

Versus

THE STATE and another----Respondents

Criminal Appeals Nos.209, 236 of 2007 and Criminal Revision No.40 of 2007, decided on 25th May, 2009.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Prosecution witnesses had contradicted each other and had introduced improved version of their own---Both witnesses had stated that accused came out from their houses duly armed with kalashnikov, whereas in the dying declaration the deceased had not described the weapon of offence---Cumulative effect of said infirmities, contradictions and improvements in the prosecution case led to the conclusion that the occurrence had not taken place in the mode and manner depicted by the prosecution---Widow of deceased who appeared as witness, had not shown the presence of abandoned prosecution witness on the spot nor she claimed that he sustained injuries in the occurrence---Apart from that, non-filing of appeal against acquittal of accused under Ss.148/337-F(iii), P.P.C. for the alleged injuries sustained by abandoned prosecution witness and under Ss.302/149, P.P.C. for murder of complainant when he was injured, prosecution case had received irreparable damage and had created multiple dents and doubts in the prosecution case---Rule of benefit of doubt which was described as golden rule was essentially a rule of prudence which could not be ignored, while dispensing justice in accordance with law---Said rule was based on the maxim "It was better that ten guilty persons be acquitted rather than one innocent person be convicted"---Care-should be taken by court in convicting an accused---Reliance of prosecution on the abscondance of accused and acquitted accused was not well placed because abscondance per se was not sufficient to prove guilt of accused---Abscondance could equally be consistent with the innocence of accused---Abscondance as a piece of conduct of accused was to be judged in the light of other evidence on the record---No reasonable grounds were available to believe that accused and acquitted accused, had taken part in the commission of offence---Prosecution, in circumstances, had not established its case against accused beyond reasonable doubt---Conviction and sentence awarded to accused by the Trial Court were set aside and he was acquitted of the charge and was released.

Barrister M. Zahoorul Haq for Appellant.

Muhammad Salim Khan and Ikramullah Khan, Addl. A.-G. for the State.

Date of hearing: 25th May, 2009.

PCrLJ 2009 PESHAWAR HIGH COURT 1265 #

2009 P Cr. L J 1265

[Peshawar]

Before Muhammad Alam Khan and Syed Yahya Zahid Gilani, JJ

MUHAMMAD AMIN ---Appellant

Versus

THE STATE and another----Respondents

Criminal Appeal No.77 and Criminal Revision No.31 of 2005, decided on 2nd June, 2009.

Penal Code (XLV of 1860)---

---Ss. 302(b)/34/114---Appreciation of evidence---Benefit of doubt---Both eye-witnesses examined in the case being real brothers of deceased, were related and interested witnesses---First part of cross-examination of both the eye-witnesses as well as the indicated motive in the F.I.R., referred to their being inimical towards accused party due to the history carrying a case of attempt at life---Complainant had a tendency to enlarge the number of accused which manifestly reflected in the F.I.R. as well as his court statement---Nature of weapon in the crime being kalashnikov, there was hardly any necessity for accused to command the assault and direct his two sons to fire and kill deceased---Independent corroboration required before placing reliance on both the eye-witnesses to hold that accused actually participated in the crime in question---Recovery of empties, spent bullet and blood from the spot no doubt provided corroboration regarding venue of occurrence and the weapon used, but not specifically about the involvement of accused in the crime---Alleged abscondence of accused was not proved according to law and that piece of evidence was not available to prosecution to corroborate the ocular testimony of prosecution witnesses--Uncorroborated statement of interested eye-witnesses qua the nomination of accused, was not sufficient for his conviction---Conviction of accused by the Trial Court, could not be approved---Accused was entitled to benefit of doubt and acquittal---Impugned conviction and sentence of accused was set aside and he was acquitted from the charge of Qatl-i-Amd levelled against him and was released.

Nazir and another v. The State PLD 1962 SC 269; Sahib Masih v. The State 1982 SCMR 178(d) and Niaz v. The State PLD 1960 SC (Pak) 387 ref.

Sanaullah Khan Gandapur for Appellant.

Sanaullah Khan Shamim Gandapur, D.A.-G. for the State.

Muhammad Karim Anjum Qasuria for the Complainant.

Date of hearing: 21st May, 2009.

PCrLJ 2009 PESHAWAR HIGH COURT 1278 #

2009 P Cr. L J 1278

[Peshawar]

Before Muhammad Alam Khan and Syed Yahya Zahid Gilani, JJ

NASRULLAH----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.78 of 2008, decided on 12th May, 2009.

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

---Ss. 9(c)/14/15---Appreciation of evidence---Prosecution case hinged on the direct evidence furnished by two prosecution witnesses, one was Police Inspector and other was Head Constable, the recovery of the incriminating material from the direct physical and conscious possession of accused persons and the positive report of the Forensic Science Laboratory---Police Inspector, had not only affirmed his earlier version, but narrated the subsequent events in the case---Said functionary was cross-examined on all material particulars, but nothing favourable to accused came out from his mouth and his testimony remained unshattered; he was true witness of the incident and his testimony was rightly taken into consideration---Other prosecution witness who was Head Constable was also put to lengthy cross-examination by the defence, but his testimony also remained unrebutted on every aspect of the case---Though both said two prosecution witnesses were Anti-Narcotic Force Officials, but since the defence had failed to prove any animosity or rancor against accused persons so as to falsely implicate them in the crime, their deposition was rightly believed by the Trial Court---Proved and unchallenged testimony of said two prosecution witnesses, having revealed the date, time, place of occurrence, presence of the recovered contraband Charas from the secret cavities of the motor car in question, the prosecution had successfully established and proved its case against accused persons---Accused were correctly found guilty for the offence and were rightly convicted and sentenced through impugned, judgment---Counsel for accused had failed to point out any illegality, irregularity, perversity, non-appraisal of evidence or jurisdictional defect in the impugned judgment of conviction, which was accordingly maintained.

Farooq Akhtar for Appellant.

Muhammad Jehangir Khan, Spl. Prosecutor, A.N.F. for the State.

Date of hearing: 29th April, 2009.

PCrLJ 2009 PESHAWAR HIGH COURT 1332 #

2009 P Cr. L J 1332

[Peshawar]

Before Muhammad Alam Khan and Syed Yahya Zahid Gilani, JJ

TARIQ HABIB----Petitioner

Versus

Haji MUHAMMAD RAMZAN and 3 others----Respondents

Writ Petition No.272 of 2009, decided on 23rd June, 2009.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 154---Penal Code (XLV of 1860), S.489-F---Constitution of Pakistan (1973), Art.199---Constitutional petition---Registration of criminal case---Application for---Respondent applied under S.22-A, Cr.P.C. for registration of F.I.R. on the basis of allegations that petitioner had issued a fraudulent and bogus cheque which was dishonoured; and that despite reporting said, allegations constituting a cognizable offence under S.489-F, P.P.C., S.H.O. Police Station concerned did not register the case---Justice of Peace directed registration of F.I.R. against the petitioner---Impugned order of Justice of Peace was within the parameters of S.22-A(6), Cr.P.C. according to law and with lawful authority because when a cognizable offence was alleged and reported by a citizen, the S.H.O. of the concerned Police Station was bound to register F.I.R. under the mandatory provisions of S.154, Cr.P.C.---Since in the present case, a cognizable offence had been alleged and the S.H.O. was reluctant to register F.I.R., the Justice of the Peace had no other option, but to issue direction for registration of case which was issued and it must be complied with---Petition dismissed.

Jamal Khan v. Abdur Rehman PLD 2009 SC 102; Muhammad Bashir v. Station House Officer, Okara, Cantt. and others PLD 2007 SC 539 and Salahuddin S.H.O. v. Mst. Noor Jehan PLD 2008 Pesh. 53 rel.

Jamal Abdul Nasir Awan for Petitioner.

PCrLJ 2009 PESHAWAR HIGH COURT 1344 #

2009 P Cr. L J 1344

[Peshawar]

Before Syed Yahya Zahid Gilani, J

ASIM KHAN----Petitioner

Versus

THE STATE and 3 others Respondents

Criminal Miscellaneous Quashment Petition No.42 of 2009, decided on 29th May, 2009.

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

----Ss. 169 & 561-A---Penal Code (XLV of 1860), Ss.452/354/337-L(ii)/148/149---Quashing of order--Petition for---Powers of Police Officer to release accused---Respondents/accused persons initially obtained interim pre-arrest bail order from the Trial Court, but later on they withdrew their petition because S.H.O. concerned released them on furnishing personal bonds under S. I69, Cr.P.C.---Petitioner/complainant aggrieved by said order of S.H.O. had filed present petition against said order of S.H.O.---Powers under S.169, Cr.P.C. could be exercised when there was no sufficient evidence with prosecution or reasonable ground or suspicion to justify the forwarding of an accused to a Magistrate---Release under S.169, Cr.P.C. could be carried out by the Investigating Officer, if there was "deficient evidence", which was not the case in hand-Prosecution case was based on direct ocular testimony coupled with the medical evidence---Section 169, Cr.P.C. did not empower a , Police Officer to carry out the process of preponderance of evidence, to prefer affidavits in favour of accused person over the available volume of prosecution evidence in order to release him under S.169, Cr.P.C.---Evaluation of two conflicting sets of evidence was not in domain of powers of S.H.O. vested under S.169, Cr.P.C., and release of an accused under his personal bond could only be valid in case the prosecution evidence was `deficient'---Impugned order and action of S.H.O. was held unlawful being beyond the parameters of S.169, Cr.P.C. and without lawful authority and also bereft of jurisdiction, enunciating miscarriage of justice---High Court, in such circumstances had to interfere and pass appropriate orders to secure the ends of justice.

Eisa Khan v. Nawab Khan and another PLD 2006 Pesh. 165; Shah Daraz Khan v. Muhammad Jabbar Khan PLD 2008 Pesh. 63; Ajmeel Khan v. Abdur Rehman PLD 2009 SC 102(b); Shadi Khan v. Motiullah and another 1989 PCr.LJ 2253; Muhammad Afzal v. Nazir Ahmad 1984 SCMR 429 and Shahzar Khan v. State 1992 PCr.LJ 394 rel.

(b) Administration of justice---

---Duty of court---High Court was to check and discourage any tendency of the State functionaries to twist, misinterpret and misapply law to achieve their desired effects, which were actually undesirable under the law and principles of justice, beyond the defined legal parameters of their vested powers and thereby ends of justice were in jeopardy---If High Court would ignore such tendencies and activities, the obvious result would be injustice and anarchy, which could never be allowed.

Saleemullah Khan Ranazai for Petitioner.

Fazal-ur-Rehman Baloch for the State.

Muhammad Ismail Khan Alizai for other Respondents.

Date of hearing: 29th May, 2009.

PCrLJ 2009 PESHAWAR HIGH COURT 1356 #

2009 P Cr. L J 1356

[Peshawar]

Before Hamid Farooq Durrani and Shahji Rahman Khan, JJ

QASIM----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.448 of 2008, decided on 14th May, 2009.

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

----S. 9(c)---Appreciation of evidence---Contention of counsel for accused that recovery of four Kg. heroin was not effected from accused, was belied by the statement of Inspector/prosecution witness and other Police Official---Samples separated from the heroin were declared to be heroin by the Chemical Examiner---Neither such huge quantity of heroin . could be planted by the prosecution against accused nor any enmity or grudge against the prosecution witnesses was claimed by accused for plantation of such a huge quantity of heroin---Accused was arrested on the date, time and place as alleged by the prosecution---No material contradiction or discrepancy had been brought on record to shatter the credibility of the prosecution evidence---In absence of enmity/grudge of the prosecution witnesses with accused, there was no possibility of planting of such a huge quantity of narcotics by the prosecution--Prosecution witnesses had fully supported and corroborated its case with their cogent, solid and confidence inspiring deposition and had proved the guilt of accused beyond reasonable doubt---No exception could be °taken to well reasoned judgment of the Trial Court.

Miss Farhana Marwat for Appellant.

Tariq Kakar for the State.

Date of hearing: 14th May, 2009.

PCrLJ 2009 PESHAWAR HIGH COURT 1371 #

2009 P Cr. L J 1371

[Peshawar]

Before Shah Jehan Khan, Actg. C.J. and Shahji Rahman Khan, J

YOUSAF----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.447 of 2007, decided on 2nd June, 2009.

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

----S. 9(c)---Appreciation of evidence---Witnesses in their depositions had given a straightforward and confidence inspiring evidence and the defence, despite lengthy cross-examination, had failed to shatter their credibility in any way---Accused was arrested on the spot along with the contraband heroin---As per 12 packets of sample, in report of Chemical Examiner those were found to contain heroin and per other report, the brown and dark brown powder was also found to be heroin--Contradictions in the statement of prosecution witnesses were of no consequence, because it had been observed that private prosecution witnesses, invariably make obliging concession for fear of retribution at the hands of NARCO smugglers---Otherwise no contradiction was found in the prosecution case on material points of time and place of recovery, arrest of accused from Bus along with 12 Kgs. of heroin---Accused had not alleged any ill-will or grudge of ANF Officials for his false involvement---Well reasoned findings of the Trial Court holding accused guilty of the charge, were not open to any exception---Neither such huge quantity of heroin could be planted by the prosecution' against accused nor material contradiction or discrepancy had been brought out from the record to shatter the credibility of the prosecution evidence---Prosecution witnesses had fully supported and corroborated its case with the confidence inspiring evidence and accused had miserably failed to prove his defence plea by producing evidence in its support---No interference was warranted in the well reasoned judgment of the Trial Court.

Nek Nawaz Khan for Appellant.

Tariq Khan Kakar, Spl. P.P. for the State.

Date of hearing: 2nd June, 2009.

PCrLJ 2009 PESHAWAR HIGH COURT 1381 #

2009 P Cr. L J 1381

[Peshawar]

Before Shah Jehan Khan and Shahji Rahman Khan, JJ

MUNAWAR HUSSAIN----Appellant

Versus

THE STATE----Respondent

Criminal Appeals Nos.456 and 459 of 2007, decided on 2nd June, 2009.

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

----S. 9(c)-Appreciation of evidence---Contention of counsel for accused that the recovery of the alleged contraband was not effected from accused, was belied by the statement of Inspector and other prosecution witness, who was official of ANF staff having accompanied the Investigating Officer/complainant at the relevant time, as they had fully supported each other on material particulars of the prosecution case---Witnesses in their deposition had given a straightforward and confidence inspiring evidence and defence despite lengthy cross-examination had failed to shatter their credibility in any way---Accused were arrested on the spot along with the contraband and the report of the F.S.L. in that regard was in the positive---No material discrepancy was found in the statements of the prosecution witnesses and accused had not alleged any ill-will or grudge of the ANF Officials for their false involvement---Well reasoned findings of the Trial Court holding accused guilty of the charge, was not open to any exception---Neither such huge quantity of the contraband could be planted by the prosecution -against accused nor material contradiction or discrepancy had been brought on record to shatter the credibility of the prosecution witnesses and accused had not alleged any ill-will or grudge of ANF Officials for their false involvement---Well reasoned findings of the Trial Court holding accused guilty of the charge was not open to any exception---Neither such huge quantity of the contraband could be planted by the prosecution against accused nor material contradiction or discrepancy had been brought out on the record to shatter the credibility of the prosecution evidence---Prosecution witnesses had fully supported and corroborated its case with the confidence inspiring evidence and accused had failed to prove their defence plea by producing evidence worth the name in support of their defence plea---No interference was warranted in the well reasoned judgment of the Trial Court.

Miss Farhana Marwat for Appellant.

Tariq Khan Kakar, Spl. P.P. for the State.

Date of hearing: 2nd June, 2009.

PCrLJ 2009 PESHAWAR HIGH COURT 1396 #

2009 P Cr. L J 1396

[Peshawar]

Before Muhammad Alam Khan and Syed Yahya Zahid Gilani, JJ

ASHIQ and another----Appellants

Versus

THE STATE and another-Respondents

Criminal Appeals Nos.79, 87, Criminal Jail Appeal No.75 and Criminal Revision No.23 of 2006, decided on 23rd June, 2009.

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

----Ss. 201 & 302(b)---Appreciation of evidence---Widow of deceased, though was not eye-witness of the occurrence, but she had furnished direct evidence on two points: Firstly, that her deceased husband on relevant date departed for going to the house of his in-laws; Secondly that animosity existed between her own brother/accused and her deceased husband over the marriage of her young daughter---On both those crucial points, the widow of deceased' having not been cross-examined, those parts of her unchallenged statement would be considered to be proved--Glaring fact could not be ignored that widow of deceased was deposing against her own mother and brother and she could not be expected to falsely depose against her near and dears---Dead body of deceased was recovered after two days of the occurrence and co-accused who was mother-in-law of deceased, knowingly concealed that fact which was in her knowledge---Said lady was rightly convicted under S.201, P.P.C. and her sentence of imprisonment already undergone, was also considered to be appropriate in the facts and circumstances of the case, however, her alleged active involvement in Qatl-e-Amd was not backed by any other admissible evidence, her acquittal under S.302, P.P.C. was according to law.

Sheraz Tufail V. The State 2007 SCMR 518 ref.

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

----Ss. 201 & 302--Appreciation of evidence---Benefit of doubt---Sentence, reduction in--Pointation of a room in the house of accused where he allegedly killed the deceased was irrelevant because from that place nothing incriminating like, human blood etc. was recovered---Spade and pick axe, allegedly recovered on the pointation of said accused, were also not incriminating articles, because those were not stained with human blood---Said articles being normally available in every village house, their nexus with the crime was not proved beyond doubt---No substantive evidence was found on record to prove that accused was the person who had committed Qatl-e-Amd of deceased and to that extent he deserved benefit of doubt, however, a few strong pieces of proved evidence were available which made a chain for conviction of said accused under S.201, P.P.C.: Firstly, there was statement of his real sister that deceased had left house for going to the house of her parent which was unrebutted and proved evidence; secondly, accused had admitted in his statement recorded under S.342, Cr.P.C. that it was in his knowledge that deceased was killed by his enemies; thirdly was the recovery of blood-stained dagger at his pointation, which was concealed by burying same at the bank of a water channel; and that place was not known to anyone else prior to his leading up to its recovery vide memo., which memo. had been proved with the statement of prosecution witness; fourthly and lastly, the blood on the dagger, matched with the blood of deceased' contained in the earth recovered from the ditch where he was buried---Such was an unbroken chain of circumstantial evidence which had proved that ,accused at least knew that deceased was killed by his enemies and then he concealed the dagger used in the crime to conceal evidence pertaining to his Qatl-e-Amd---Accused, in circumstances, was proved guilty under S.201, P.P.C., he was convicted under S.201, P.P.C. and his appeal was partially accepted and his conviction under S.302(b), P.P.C. was converted under S.201, P.P.C. and he was sentenced to seven years' R.I.?

Muhammad Waheed Anjum for Appellants.

Saleemullah Khan Ranazai for the State.

Date of hearing: 16th June, 2009.

PCrLJ 2009 PESHAWAR HIGH COURT 1414 #

2009 P Cr. L J 1414

[Peshawar]

Before Muhammad Alam Khan and Syed Yahya Zahid Gilani, JJ

HANIF ULLAH alias HANIF----Appellant

Versus

THE STATE and another----Respondents

Criminal Appeals Nos.73, 71 and Criminal Revision No.13 of 2007, decided on 3rd June, 2009.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---No previous blood feud or any other kind of enmity existed between the parties and the venue of occurrence was proved to be that which had been alleged by the complainant and shown in the site plan---Medical evidence had proved that deceased was done to death with use of fire-arm---Complainant was not only related to deceased, but also chance witness---Corroboration of his statement from other sources, would be required on that ground as well as on the ground that he was the solitary witness of the case---Statement of the complainant that three accused being father and two sons, due to mere altercation over the sale of a quail joined hands to kill the deceased, did not appeal to mind---Medical evidence was in sheer conflict with the ocular testimony of the complainant---Deceased was not hit in the mode and manner as alleged by the eye-witness---Delay of at least 1/2 hour in lodging report, reflected doubt on, the presence of complainant on the spot and hinted towards consultations and deliberations before nominating accused---Exaggeration of number of accused by attributing no overt act, but including the acquitted father and brother of accused; was also not ignorable and created a dent of doubt in the whole prosecution case---Ocular testimony of solitary eye-witness, who was a chance witness, could not be relied upon for conviction on capital charge, because he had been belied by the medical evidence as well as physical features of the scene of occurrence, coupled with unconvincing version of prosecution and weakness of motive---Short period of alleged abscondence of accused comprising of 2-1/2 months, in circumstances, was of no use---Prosecution, in circumstances, had failed to prove case against accused beyond shadow of doubt---Trial Court was not justified in convicting accused, in circumstances---Conviction and sentence of accused, were set aside and he was acquitted of the charge, and was released.

Abdul Latif Khan Baloch for Appellant.

Saleemullah Khan Ranazai for the State.

Ghulam Hur Khan Baloch for the Complainant.

Date of hearing: 3rd June, 2009.

PCrLJ 2009 PESHAWAR HIGH COURT 1421 #

2009 P Cr. L J 1421

[Peshawar]

Before Muhammad Alam Khan and Syed Yahya Zahid Gilani, JJ

KHAIRULLA H----Appellant

Versus

THE STATE----Respondent

Criminal Jail Appeal No.90 of 2005, decided on 4th June, 2009.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Report lodged in the case within one hour, was not a delayed one---Report having been lodged with promptitude, name of accused was specifically mentioned in the F.I.R." coupled with the clear mention that .12 bore pistol was used---Two pellets recovered from the spot and five from the body of deceased, fully corroborated the use of .12 bore pistol---Non-disclosure of motive was not detrimental to prosecution case---Defence could also not bring on record any motive for false charge or animosity and ill-will of any kind in between accused and complainant, showing reasonable ground to believe that he had been falsely nominated---Since the occurrence took place in daylight, there was no question of misidentification nor any reason for substitution of the actual culprit---Complainant/eye-witness, was not an interested and inimical witness because he had no motive to falsely charge accused---Statement of complainant got support and corroboration from the medical as well as circumstantial evidence---Time of occurrence alleged by the eye-witness was fully corroborated by the opinion of Medical Officer---Long, noticeable and unexplained abscondence of accused comprising one year and three months, had been proved by the prosecution witness, warrant and proclamation notice---Case was that of single accused in which substitution was always very rare and it was not visible in the case---Prosecution had been able to prove its case against accused beyond shadow of doubt---Conviction and sentence awarded to accused by the Trial Court, were upheld---Due to absence of proof of motive, sentence of life imprisonment, coupled with the amount of compensation, was appropriate.

Ijaz Ahmad v. The St ate 2009 SCMR 99 ref.

Ehsan-ul-Haq Malik for Appellant.

Saleemullah Khan Ranazai for the State.

Ch. Iftikhar-ul-Haq for the Complainant.

Date of hearing: 27th May, 2009.

PCrLJ 2009 PESHAWAR HIGH COURT 1445 #

2009 P Cr. L J 1445

[Peshawar]

Before Hamid Farooq Durrani, J

SHER ZADA----Petitioner

Versus

THE STATE through Izzat Khan and others----Respondents

Criminal Miscellaneous Bail Petition No.393 of 2008, decided on 6th June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)--Penal Code (XLV of 1860), Ss.324/337-A(ii), F(iv), 148 & 149---Bail, grant of---Further inquiry---Contents of F.I.R. showed a specific role of accused of causing blunt weapon injury to the complainant, however, the eye-witnesses mentioned in the report, were not consistent in that respect---One of the witnesses in his statement recorded under S.164, Cr.P.C. did not mention accused specifically causing injury on the forehead of complainant---Assault had been conspicuously attributed to six persons---No recovery of crime empty was shown to have been made from the point where accused was stationed, while from almost all other points of presence of co-accused, such recoveries were effected---Formation of a close cluster by accused around the complainant at the relevant time, as indicated in the site-plan, would also be suggestive of further inquiry in order to connect accused with the alleged offence---Possibility of similarity of role by all accused persons except one, could also not be ruled out in the case---Accused was admitted to bail, in circumstances.

1999 PCr.LJ 230/1700; 2005 PCr.LJ 1604 and 2007 YLR 2102 ref.

Noor Alam Khan for Petitioner.

Ikramullah Khan, A.A.-G. for the State.

Aminur Rehman for the Complainant.

Date of hearing: 6th June, 2008.

PCrLJ 2009 PESHAWAR HIGH COURT 1456 #

2009 P Cr. L J 1456

[Peshawar]

Before Ejaz Afzal Khan, J

ABDUR RAZAQ----Petitioner

Versus

RAB NAWAZ and another----Respondents

Criminal Miscellaneous/BCA No.650 of 2009, decided on 31st August, 2009'.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.324/34---Bail, cancellation of---Application for---Data available on the record showed that respondent/accused had been charged for firing a shot on the complainant, resulting in as many as five pellet injuries out of which one resulted in the fracture of his mandible---Intention to kill was not open to any doubt, when vital part of body of the complainant had been aimed at---Case for further inquiry could not be made out when accused, prima facie was saddled with the responsibility of attempting at the life of the complainant---Grant of bail, in the circumstances, would hardly be called for, even on the basis of a cross case, which was not a rule of universal application---Bail granted to accused was recalled and he was taken into custody.

M. Qasim Khan Khattak for Petitioner.

Zahid Yousaf A.A.-G. for the State.

Khawaja Muhammad Khan for Respondent No.1.

Date of hearing: 31st August, 2009.

PCrLJ 2009 PESHAWAR HIGH COURT 1478 #

2009 P Cr. L J 1478

[Peshawar]

Before Tariq Parvez Khan, CJ

WAHIDULLAH----Petitioner

Versus

YOUSAF JAMAL and another----Respondents

Criminal Miscellaneous (B.C.A.) No.1455 of 2008, decided on 24th July, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14---Cancellation of bail, application for---Respondent/accused was not charged in F.I.R., but was charged subsequently in the statement under S.164, Cr.P.C.---No incriminating article had been recovered from the possession of accused---On merits accused had been rightly allowed bail especially when similar application by two of his co-accused against whom bail cancellation application was filed, was dismissed by the High Court in motion---Even the rule of consistency required that application for cancellation of bail of accused could not be granted---Application for cancellation of bail stood dismissed, in circumstances.

M. Qasim Khan Khattak for Petitioner.

Quetta High Court Balochistan

PCrLJ 2009 QUETTA HIGH COURT BALOCHISTAN 1270 #

2009 P Cr. L J 1270

[Quetta]

Before Amanullah Khan Yasinzai, CJ and Mehta Kailash Nath Kohli, J

THE STATE through Regional Director, Anti-Narcotic Force Balochistan----Appellant

Versus

ABDUL SAMAD through Statiow House Officer----Respondent

Criminal Acquittal Appeal No.199 of 2008, decided on 17th March, 2009.

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

---Ss. 9(c) & 48--Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal---Record had shown that Trial Court had acquitted respondent/accused mainly on two grounds; (i) that the report of Chemical Expert was not made part of the record and nothing was on record showing that said report was made part and parcel of the Trial Court record; (ii) that the house from where the alleged recovery was made had not been proved to be owned by accused, while on the contrary, it had been concluded that the same was owned by someone else---None of the witnesses including the Investigating Officer had tendered any Chemical Expert report, nor the said report had been made as part of the record of file or any request was made within the purview of S.528, Cr.P.C. for leading additional evidence--Chemical report must be tendered in evidence to enable accused to rebut the same---Trial Court had passed the judgment on proper appraisal of evidence and law available and order of acquittal of accused was based on legal footing--In absence of any misreading and misappreciation or perversity in the impugned judgment of the Trial Court warranting interference by the High Court, appeal having no merit was dismissed.

Wali Muhammad v. King-Emperor AIR 1924 All. 193 ref.

Goher Yaqoob Yousafzai, Spl. Prosecutor for the State.

Respondent in person.

Date of hearing: 12th March, 2009.

PCrLJ 2009 QUETTA HIGH COURT BALOCHISTAN 1288 #

2009 P Cr. L J 1288

[Quetta]

Before Akhtar Zaman Malghani and Muhammad Nadir Khan, JJ

MITHAL alias BABAL and another----Appellants

Versus

THE STATE----Respondents

Criminal Appeal No. (S)66 and Murder Reference No.(S)15 of 2007, decided on 2nd April, 2009.

Penal Code (XLV of 1860)---

----Ss. 302(b), 337-F(ii) & 427---Appreciation of evidence---Incident was stated to have taken place at mid night when it was dark night---Prosecution witnesses claimed to have identified accused person in the light of vehicle---Evidence of prosecution witnesses in that respect would require deep scrutiny as said eye-witnesses were not only inter-related, but were also cousins of deceased---Injured eye-witness was not resident of the area where incident had taken place---Story narrated by said witnesses with regard to identify accused persons in the light of motor vehicle, did not fit in the probability of the case---No motive had been disclosed against accused persons for committing murder of deceased or attacking the complainant party---Story narrated by eye-witness was not only improbable, but also contradictory to the other circumstantial evidence brought on record---F.I.R. was lodged after about 11 hours of the occurrence without any plausible explanation for such delay---Delay in lodging F.I.R. though in ordinary course alone was not sufficient to reject prosecution version, but in peculiar facts and circumstances of the case, wherein the occurrence had occurred in dark hours of night and identification of culprits was doubtful, it had gained significance---Safe presumption was that the F.I.R. was not lodged promptly in order to gain time to deliberate and nominate culprits by claiming to have identified them at the :spot---Absence of enmity or relationship of witnesses with the complainant, could not stamp statements of the witnesses with truth which had to be analyzed in the light of peculiar facts and circumstances of each individual case---Fact that the kalashnikov remained with Police for about thirteen days in unsealed condition, had damaged veracity of firearm expert report, which even otherwise could not be believed because the empties recovered from the place of occurrence were not sent immediately to Firearm Expert---Positive report of Firearm Expert was of no consequence nor it could further improve the case of prosecution in such circumstances---In the light of diverse factors no implicit reliance could be placed upon the ocular testimony and other circumstantial evidence produced by the prosecution to maintain conviction of accused on capital charge---Impugned judgment passed by the Trial Court, was set aside and accused were acquitted and set at liberty.

PLD 1980 SC 293; 1997 SCMR 89; PLD 1963 Kar. 91; PLD 1976 Pesh. 90; PLD 1988 Lah. 671; 1998 SCMR 1262; 1998 SCMR 1401 and 1992 SCMR 545 ref.

Muhammad Aslam Chishti for Appellants (in Criminal Appeal No(S)66 of 2007).

Miss. Noor Jahan Kahoor for the State (in Criminal Appeal No(S)66 of 2007).

Naeem Akhtar for the Complainant (in Criminal Appeal No(S)66 of 2007).

Miss Noor Jahan Kahoor for the State (in Murder Reference No.(S)15 of 2007).

Muhammad Aslam Chishti for Respondents (in Murder Reference No.(S)15 of 2007).

Date of hearing: 19th March, 2009.

Supreme Appellate Court

PCrLJ 2009 SUPREME APPELLATE COURT 1178 #

2009 P Cr. L J 1178

[Supreme Appellate Court Northern Areas]

Before Muhammad Nawaz Abbasi, C. J., Syed Jaffar Shah and Muhammad Yaqoob, JJ

MALOOK KHAN and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.3 of 2009, heard on 9th June,, 2009.

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

---S. 497(2)---Scope and applicability of S.497(2), Cr.P.C.---Considerations for grant of bail in cases not falling within the prohibitory clause of S.497, Cr.P.C., were different from that of the cases falling under said clause---Bail in cases involving punishment of death or imprisonment for life or for a term of 10 years, was not ordinarily granted, unless the court, on the basis of tentative assessment of the evidence in the hand of prosecution, formed an opinion that the guilt of accused would require further inquiry in terms of subsection (2) of S.497, Cr.P.C.---No general rule existed for grant of bail on the ground of further inquiry, rather the scope of further inquiry in each case depended upon the facts and circumstances of that case---Provision of subsection (2) of S.497, Cr.P.C. could attract in the case of no evidence or the evidence direct or circumstantial was not confidence inspiring or the evidence was not of the standard to sustain conviction, or there was no possibility of ultimate conviction on the basis of evidence brought on Police file or the case was of doubtful nature or on such other ground which could be considered sufficient for further inquiry into the guilt of an accused.

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

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---West Pakistan Arms Ordinance (XX of 1965), S.13---Northern Areas Council Legal Framework Order, 1991, Art.19-A---Bail, grant of---Further inquiry---In the present case apart from direct evidence of eye-witnesses, the abscondence of accused persons and recovery of the arms allegedly used by them in the occurrence had been brought on record---Medical evidence was not available to ascertain the cause of death---Fire-arm Expert's opinion regarding the recovered weapon was not part of record, whereas the eye-witnesses had assigned to all accused persons, the same role of combined firing at the deceased---Tentative assessment of evidence in the hand of prosecution would show that the case against accused persons was not distinguishable from that of their co-accused who had since been discharged---Case of accused, in circumstances, would squarely fall within the ambit of S.497(2), Cr.P.C. for the purpose of further inquiry---Investigation of the case was not conducted in fair manner and the element of dishonesty was apparent on the face of record as co-accused on the same set of evidence were declared innocent, whereas accused persons were challaned to face the trial---Petition for leave to appeal was converted into appeal and was disposed of in terms of short order granting bail to accused persons.

Malik Haq Nawaz for Petitioners.

A.-G. for the State.

Supreme Court Azad Kashmir

PCrLJ 2009 SUPREME COURT AZAD KASHMIR 1095 #

2009 P Cr. L J 1095

[Supreme Court (AJ&K)]

Before Muhammad Reaz Akhtar Chaudhry, C.J. and Muhammad Azam Khan; J

MUHAMMAD YOUNIS----Appellant

Versus

YASIN AYUB and another----Respondents

Criminal Appeal No.35 of 2006, decided on 13th February, 2009.

(On appeal from the judgment of the Shariat Court, dated 3-6-2006 in Criminal Appeal No.146 of 2005).

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

----Ss. 422 & 423---Criminal appeal not to be dismissed for non-prosecution---Criminal appeal cannot be dismissed for non-prosecution and it has to be decided on merits---If a convict appellant after having filed an appeal deliberately disappears or does not appear in the Court or his counsel is absent, then the Court can decide the appeal after hearing the Public Prosecutor so appointed or if he does not appear then the Court is competent to decide the appeal on merits.

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

----Ss. 417(2-A), 422 & 423---Penal Code (XLV of 1860), Ss.324, 459 & 337-D---Appeal against acquittal not be decided without hearing accused---Section 422, Cr.P.C. provided issuance of notice for service to the accused in an appeal filed against acquittal and under S.423, Cr.P.C. it was mandatory that the acquittal appeal shall be decided after hearing the accused---Respondents accused had proceeded to England before notice could be served upon them, after acquittal from the Shariat Court---Accused, therefore, could never be treated as absconders without service---Had the accused been served upon and after appearance in court absented themselves, then they could be termed as absconders---Hearing being a right of accused, without service of notice upon them appeal against their acquittal could not be heard and disposed of---Non-bailable warrants issued against the accused respondents were consequently directed to remain intact for execution---Appeal was also directed to be' kept pending in circumstances, till the accused were served upon or they were brought before the Court.

1997 SCMR 274; 2001 PCr.LJ 706; PLD 1982 SC (AJ&K) 184; PLD 1983 SC (AJ&K) 1 and PLJ 1994 C.S. 791 (sic) distinguished.

Superintendent and Bemembrancer of Legal Affairs, Bangal v. Golok Tikadar and others AIR 1944 Cal. 234; State Government, Madhya Paradesh v. Vishwanath Nidhanji and others AIR 1954 Nag. 231 and The State v. Karamat and others PLD 1960 (W.P.) Pesh. 126 ref.

---Ss. 417, 422 & 423---Appeal against acquittal---Not to be heard and disposed of without service of notice upon accused---Hearing is a right of the accused and without service of notice upon him, appeal against his acquittal cannot be heard and disposed of.

Khalid Rashid Choudhry, Advocate for Appellant.

Nemo for Respondents Nos. 1 and 2.

Muzaffar Ali Zafar, Addl. Advocate-General for the State.

Supreme Court Ajk

PCrLJ 2009 Supreme Court AJK 55 #

2009 P Cr. L J 55

[Supreme Court (AJ&K)]

Present: Syed Manzoor Hussain Gilani, J

FAZAL HUSSAIN----Petitioner

Versus

MUHAMMAD ASHRAF and 2 others----Respondents

Criminal P.L.A. No.66 of 2006, decided on 16th June, 2006.

(On appeal from the judgment of the High Court, dated 11-3-2006 in Criminal Appeal No.14 of 2005).

Criminal Procedure Code (V of 1898)---

----S. 133---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Public nuisance---Chapter X of Criminal Procedure Code, 1898, dealing with public nuisances had clearly stipulated every step to be taken by the Magistrate on receiving an information regarding a public nuisance---Spirit of the said Chapter had to be carried into effect and every word of the law was to be given in meaning as provided by the law itself---Magistrate had adopted cursory procedure in dismissing the complaint made by the S.H.O. regarding an encroachment upon a public road by the petitioner, without following any provision of law---Magistrate appeared to have dealt with the case in an administrative manner instead of adopting a legal procedure---Courts below had rightly set aside the order of the Magistrate and directed him to proceed in accordance with the provisions of law---Leave to appeal was refused to the petitioner accordingly.

Muhammad Farid Khan for Petitioner.

Muhammad Akram Mughal for Respondents.