PCRLJ 2010 Judgments - Pakistan Legal Archive

Courts in this Volume

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

Federal Shariat Court

PCrLJ 2010 FEDERAL SHARIAT COURT 27 #

2010 P Cr. L J 27

[Federal Shariat Court]

Before Salahuddin Mirza, J

LIAQAT----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.194-I of 2006, decided on 8th June, 2007.

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

----S. 10(2)---Appreciation of evidence---Night had commenced shortly after the commission of offence; it was winter season and the police station was at a distance of 12 kilometers---Complainant therefore, could be excused for not lodging the F.I.R. on the same night---Complainant and her husband, no doubt, belonged to lower class of society, but she had every right to make report and complain if a person of higher status would violate her rights to the extent of committing rape on her---Political rivalry between two groups of influential persons of the village or, criminal litigation between them was totally irrelevant so far as a poor landless peasant was concerned---Lengthy cross-examination on the prosecution could not shatter the prosecution case and she was fully supported by the eye-witness who though related to her was not an interested witness---Complainant was a married lady who was married only about a year before the present incident and she or her husband could not be believed to have played in the hands of any person and falsely implicated the accused in the case---Accused had been proved guilty on the record and abscondence of co-accused during trial had also supported his guilt---Conviction and sentence of accused were maintained in circumstances.

Allah Bakhsh v. The State PLD 1986 FSC 144; Khan Muhammad v. The 'State PLD 1986 FSC 262; Muhammad Nawaz v. The State 1985 PCr.LJ 761; Muhammad Akbar v. The State 1985 PCr.LJ 2026 and Ghulam Ghous v. Muhammad Amin and others 1997 SCMR 37 ref.

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

----S. 154---Belated F.I. F.I.R. ---Effect---Delay in filing of F.I.R. is fatal only when the same is not adequately explained.

Syed Nayab Hussain Gardezi for Appellant.

Muhammad Akram Gondal for the Complainant.

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

Date of hearing: 25th May, 2007.

PCrLJ 2010 FEDERAL SHARIAT COURT 75 #

2010 P Cr. L J 75

[Federal Shariat Court]

Before Salahuddin Mirza, J

QADIR BUKHSH and 3 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.64/1 of 2006, decided on 29th May, 2007.

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

----S. 18---Appreciation of evidence---All the three eye-witnesses had given three contradictory versions of the incident and it was very difficult to decide as to which version was correct---Impugned judgment was the result of serious misinterpretation and misreading of evidence and had no legs to stand upon---Complainant and his brother seemed to be sex centered and wherever they would see a man and a woman together they would jump to the conclusion that the said man and woman had adultery in their mind---Incident was so unnatural and contradictory that it could not be possibly believed to have occurred as alleged by the, prosecution---Accused appeared to have been falsely involved in the case due to the biased nature of the complainant's mind and political rivalry between him and the accused---Even Trial Court had disbelieved the prosecution case as regards the commission of Zina by the accused and instead concluded without any evidence on record that accused had performed overacts towards commission of offence of Zina, which if not interrupted would have culminated in Zina---Trial Court had convicted the accused under S.18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, merely because of the presence of men- and women at the place of alleged occurrence---Nobody had a legal or moral right to enforce his own version of morality and piety and utter lies in the process---Accused were acquitted accordingly.

Malik Muhammad Saleem and Mehr Sardar Ahmad Abid for Appellants.

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

Date of hearing: 25th May, 2007.

PCrLJ 2010 FEDERAL SHARIAT COURT 96 #

2010 P Cr. L J 96

[Federal Shariat Court]

Before Haziqul Khairi, CJ

MUSTAFA----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.37-L of 2006, decided on 28th September, 2007.

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

----S. 18---Appreciation of evidence---Prosecution evidence regarding commission of offence of attempted Zina-bil-Jabr by the accused with the 9/10 years old daughter of the complainant had remained unshaken and was convincing---Case of prosecution had been fully established against the accused---Impugned judgment did not call for any interference---Conviction and sentence of accused were upheld by Federal Shariat Court accordingly.

Tariq Muhammad Iqbal Chaudhry for Appellant.

Alamgir, A.P.C. for the State.

Date of hearing: 24th September, 2007.

PCrLJ 2010 FEDERAL SHARIAT COURT 118 #

2010 P Cr. L J 118

[Federal Shariat Court]

Before Muhammad Zafar Yasin, J

MAZHAR HUSSAIN----Appellant

Versus

THE STATE----Respondent

Jail Criminal Appeal No.221/I of 2006, decided on 7th May, 2007.

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

---Ss. 16, 10(3) & 10(2)---Appreciation of evidence---F.I.R. itself had disclosed that the alleged abductee had developed illicit relations with the accused and she had eloped with him with her own free will---Abductee was a well matured married lady, who had accompanied willingly her paramour (accused); lived with him for about 8/9 months, did not raise any objection and enjoyed sexual intercourse with him, with the result that she was found pregnant of 12 weeks at the time of her medical examination after her recovery---Conviction of accused under S.16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was maintained and his conviction under S.10(3) of the said Ordinance was altered to S.10(2) thereof---Sentence of seven years' R.I. awarded to accused on each count being harsh was reduced to three years' R.I. on each count in circumstances which was to run concurrently.

Arif Ali Zafar Chohan for Appellant.

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

Date of hearing: 7th May, 2007.

PCrLJ 2010 FEDERAL SHARIAT COURT 129 #

2010 P Cr. L J 129

[Federal Shariat Court]

Before Haziqul Khairi, C.J., Salahuddin Mirza and Syed Afzal Haider, JJ

ZAFAR----Appellant

Versus

THE STATE----Respondent

Criminal Appeals Nos.87/L, 91/L and Murder Reference No.5/I of 2006, decided on 24th October, 2008.

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

----S. 10(4)---Appreciation of evidence--F.I.R. had been lodged without any' inordinate delay---Commission of Zina-bil-Jabr, with the victim girl by the accused stood established on the basis of testimony of prosecution witnesses available on record---According to prosecutrix three persons had committed Zina-bil-Jabr with her, but later on she had exonerated one of them, which was a mitigating circumstance in favour of accused calling for lesser punishment than prescribed under the law---Conviction of both the accused was maintained, but their sentence of death was reduced to imprisonment for life each in circumstances with the benefit of S.382-B, Cr.P.C.---Appeals were disposed of accordingly.

Bashir Ahmed and 2 others v. The State PLD 2002 SC 775 ref.

Syed Sohail Ahmed and another v. The State 2001 SCMR 2007 rel.

Khalid Mian for Appellant (in Criminal Appeal No.87/L of 2006).

Syed Ali Imran, D.P.-G. for the State (in Criminal Appeal No.87/L of 2006).

Syed Zaman Haider for Appellant (in Criminal Appeal No.91/L of 2006).

Syed Ali Imran, D.P.-G. for the State (in Criminal Appeal No.91/L of 2006).

Date of hearing: 16th September, 2008.

PCrLJ 2010 FEDERAL SHARIAT COURT 142 #

2010 P Cr. L J 142

[Federal Shariat Court]

Before Salahuddin Mirza, J

Mst. DURR-E-SHAHWAR BEGUM----Petitioner

Versus

Haji BAKHTAWAR SAID MUHAMMAD and another----Respondents

Criminal Revision No.8/I of 2004, decided on 25th January, 2008.

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

----Ss. 7 & 14---Constitution of Pakistan (1973), Art.203-DD---Trial Court, after inquiry under S.202, Cr.P.C. in the private complaint, had framed the charge against the accused respondent under S.14 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, instead of S.7 thereof on the ground that accused had levelled the charge of adultery and of bad character against the complainant petitioner during subsistence of marriage between them and not after the divorce---Validity---Matrimonial relationship between the parties had ended when the accused had divorced the complainant and executed divorce deed, as conceded by him in his written statements filed in the maintenance and dowry suits of the complainant before the Family Court---Section 14 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, thus, was not attracted to the facts of the case---Complainant and accused were just a woman and a man and not a wife and husband, when the accused in his said written statements and also before his elder brother and a Punchayat in his own house, had allegedly made imputation of Zina against the complainant explicitly stating that all of her three children were illegitimate---Action of accused, therefore, had clearly attracted the provisions of Ss.6 & 7 of the Offence of the Qazf (Enforcement of Hadd) Ordinance, 1979---Impugned order of Trial Court was consequently set aside being untenable and the case was remanded to the said Court with the direction to frame the charge under Ss.6 & 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, and proceed with the case in accordance with law---Revision petition was accepted accordingly.

Muhammad Shoaib Abbasi for Respondent.

Asjad Javed Goral and Syed Ali Imran, D.P.-Gs. for the State.

Date of hearing: 7th December, 2007.

PCrLJ 2010 FEDERAL SHARIAT COURT 157 #

2010 P Cr. L J 157

[Federal Shariat Court]

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

WAHAB ALI and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.30/K of 2006, decided on 14th January, 2008.

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

----Art. 4---Appreciation of evidence---Each and every prosecution witness was not required under the law to give names of all the members of the raiding party in his examination-in-chief---Head of the raiding party, who was the complainant and Investigating Officer of the case, having said two contradictory things in one and the same breath about entry in Roznamcha regarding the departure of the excise party from excise police station, had shown himself to be an unreliable person---Failure of prosecution to produce Roznamcha Entry in evidence had made the authenticity of the whole prosecution case doubtful about the Inspector going on Gasht on the date and time when the two accused were apprehended from the road side and the third was apprehended from the house to which the two accused had led the police party---Official who had weighed the recovered heroin, though should have been examined, was not examined in the Court as a witness---Bag from which heroin was recovered appeared to have been sealed at the excise police station after recording the F.I.R.---Prosecution could not clarify as to where the samples of heroin remained for three or four days after their dispatch to Chemical Examiner---Unexplained delay in the receipt of the samples by Chemical Examiner was fatal to prosecution case---Inspector had tried to deceive the court into believing that a member of the raiding party was a stranger and an independent witness---Prosecution case was replete with serious contradictions and discrepancies---Accused were acquitted on benefit of doubt in circumstances.

Hakim Ali v. State 2001 PCr.LJ 1875; Arif Khan v. State 1998 PCr.LJ 1287; Muhammad Akram Khan v. The State 1996 PCr.LJ 843; Mst. Sultan Zari v. The State 1986 PCr.LJ 1723; Javed Akhtar v. The State 1998 PCr.LJ 1462 and Abdul Ghaffar v. The State 1976 PCr.LJ 768 ref.

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

----Art. 4---Prosecution evidence---Law does not enjoin each and every witness to give names of all the members of raiding party in his examination-in-chief.

----Art. 4---Failure to produce Roznamcha Entry---Effect---Failure of prosecution to produce Roznamcha entry in evidence makes the authenticity of the whole prosecution case doubtful, about the proceedings taken by raiding party.

Hakim Ali v. State 2001 PCr.LJ 1875 and Arif Khan v. State 1998 PCr.LJ 1287 ref.

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

----Art. 4---Delay in receipt of samples by Chemical Examiner---Effect---Unexplained delay in the transit between the dispatch of sample parcels and receipt of the same by Chemical Examiner, is fatal to prosecution case.

Muhammad Akram Khan v. The State 1996 PCr.LJ 843; Msi. Sultan Zari v. The State 1986 PCr.LJ 1723 and Javed Akhtar v. The State 1998 PCr.LJ 1462 ref.

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

----Art. 4---Appreciation of evidence---Stock-witness---Credibility---Testimony of a stock-witness, who has admittedly appeared in a number of cases, cannot be relied upon.

Abdul Ghaffar v. The State 1976 PCr.LJ 768 ref.

Mehmood A. Qureshi for Appellants.

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

Date of hearing: 1st November, 2007.

PCrLJ 2010 FEDERAL SHARIAT COURT 174 #

2010 P Cr. L J 174

[Federal Shariat Court]

Before Muhammad Zafar Yasin, Salahuddin Mirza and Syed Afzal Haider, JJ

GHULAM MURTAZA----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.131/I and Murder Reference No.8/I of 2008, decided on 29th May, 2009.

Penal Code (XLV of 1860)---

----S. 302---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.6---Accused convicted on his confession---Validity---Trial Court had failed to mention whether the conviction was recorded under S.302(a) or S.302(b), P.P.C.---Confession made by accused before Magistrate was neither made part of the judicial record, nor the same was exhibited in the Court---Although accused was stated to have made his confession also before Trial Court voluntarily without any duress or coercion, yet no such questions we're ever put to him by Court, nor any such note was given under his confessional statement---Accused was also not given any show-cause notice as to why he should not be convicted and sentenced on the basis of his confession made before the Trial Court---Conviction of accused and sentence of death recorded by Trial Court under S.6. of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was not warranted by law---Sessions Court was under an obligation under High Court Rules and Orders Vol.III, Ch.24, Rule 1 to provide a counsel at State expense to the pauper accused of an offence entailing capital punishment, but neither the accused had the services of a counsel of his own choice at the trial stage, nor Trial Court had provided him a counsel at State expense and, thus, had acted illegally in trial proceedings--Impugned judgment being an outcome of material irregularity was set aside and the case was remanded to Sessions Court for de novo trial after providing a counsel at State expense to accused---Appeal was disposed of accordingly.

Muhammad Shafquat v. The State 2005 PCr.LJ 1884 ref.

Malik Abdul Haq for Appellant.

Mrs. Rukhsana Malik, Addl. P.-G. Punjab, for the State.

Date of hearing: 27th May, 2009.

PCrLJ 2010 FEDERAL SHARIAT COURT 192 #

2010 P Cr. L J 192

[Federal Shariat Court]

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

FAISAL KHAN----Appellant

Versus

THE STATE----Respondent

Jail Criminal Appeal No.8/I of 2006 and Criminal Reference No.5/I of 2007, decided on 27th February, 2009.

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

----Ss. 17(4), 7(a) & 16---Haraabah---Penal Code (XLV of 1860), Ss.319 & 304(a)---Punishment for Qatl-i-Khata and proof of Qatl-i- Amd liable to Qisas etc.---Criminal Procedure Code (V of 1898), S.164---Conviction based on confession---Accused was charged under Ss.302/34, 392 & 412, P.P.C., but he had been convicted under S.17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, which was a graver charge---Neither the charge was amended at any stage, nor the altered charge was read over to accused and he was even not given an opportunity to defend himself, which amounted to a grave illegality---Accused was charged under P.P.C. and he had made confession under S.164, Cr. P. C. read with S.304(a), P.P.C.---Accused did not plead guilty of the commission of theft liable to Hadd as contemplated under S.7(1) read with S.16 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 yet he was convicted under S.17(4) of the said Ordinance---Admission of guilt under S.7(a) of the Ordinance was somewhat similar to S.243, Cr.P.C. and was an admission simplicitor, whereas the requirements of judicial confession being mandatory in nature, non-compliance thereof would render the confession invalid---Conviction of accused under S.17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, on the basis of confession under S.164, Cr. P. C., therefore, was patently erroneous, without jurisdiction and of no legal effect---Theft of anything or property had not been made---Version of the F.I.R. was not consistent with confessional statement of accused and in the absence of post-mortem report it was not possible to establish as to which of the two accused had caused the death of the deceased---Confession of accused being truthful and honest was accepted in its entirety and .because of mitigating circumstances impugned judgment was set aside,' but instead accused was convicted under S.319, P.P.C. and sentenced to five years' R.I. with Diyat amounting to Rs. 75,000 to be paid to legal heirs of the deceased in circumstances--Benefit of S.382-B, Cr. P. C. was denied to accused on account of gross negligence on his part---Appeal was disposed of accordingly.

Pir Imtiaz and another v. The State 2005 PCr.LJ 721. 1995 SCMR 351; 1992 SCMR 2047; 1998 PCr.LJ 1700; Arbab v. The State 1972 PCr.LJ 76; PLD 1982 FSC 126 and Arbab v. The State 1972 PCr.LJ 76 ref.

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

----S. 164---Confession---Conviction based on confession---Scope---Where admission of guilt is the only basis of conviction, statement of accused should be accepted in its entirety and believing it to be true Court would examine that what offence has been made out against the accused.

Abdul Majeed for Appellant.

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

Date of hearing: 14th January, 2009.

PCrLJ 2010 FEDERAL SHARIAT COURT 206 #

2010 P Cr. L J 206

[Federal Shariat Court]

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

In re: SHARIAT SUO MOTU NO.120 OF 1987

Shariat Suo Motu No.120 of 1987, decided on 6th May, 2009.

(a) Words and phrases---

----"Bona fide"----Connotation.

1989 SCMR 1366; Merril v. Department of Motor Vehicles 71 Cal. 2d 907; 80 Cal. Rptr. 89, 458 p.2d 33 and Bridgeport Mortgage and Realty Corporation v. Whitlock 128 Conn. 57, 20 A.2d, 414, 416 ref.

(b) Pakistan Rangers Ordinance (XIV of 1959)---

----S. 20-A---Penal Code (XLV of 1860), Ss. 76, 77, 78 & 79---Provisions in line with Islamic principles of justice and equity---Ranger and Government not liable for the acts done by the Ranger in good faith during discharge of his duties---If a member of Rangers . in discharge of his duties acts in good faith as a result whereof damage is caused to any person or property, he as well as the Government shall not be liable under law---In order to constitute an act in good faith, the same must have been done judicially and honestly within the framework of law, subject however to the general exceptions as envisaged in Ss. 76, 77, 78 & 79 of P.P.C.---Aggrieved party would have to show that in any act such elements were missing, which indeed would give rise to action in law--Said provisions of law are in line with the high principles of justice and equity as enunciated in Islam.

1989 SCMR 1366; Merril v. Department of Motor Vehicles 71 Cal. 2d 907, 80 Cal. Rptr. 89, 458 p.2d 33 and Bridgeport Mortgage and Realty Corporation v. Whitlock 128 Conn. 57, 20 A.2d, 414, 416 ref.

Sardar Abdul Majeed, Standing Counsel and Nazar Hussain Section Officer, Ministry of Interior for Federal Government.

Shafqat Munir Malik, Addl. A.-G. for Government of Punjab.

Fareed-ul-Hassan, Asstt. A.-G. for Government of Sindh.

M. Azam Khattak, Addl. A.-G. for Government of Balochistan.

Muhammad Sharif Janjua for Government of N.-W.F.P.

Tasleem Akhtar Khan, Senior S.P. Rangers and Abdul Ghaffar, Legal Adviser, Pakistan Rangers for Pakistan Rangers.

Dates of hearing: 18th November, 2008 and 22nd January, 2009.

PCrLJ 2010 FEDERAL SHARIAT COURT 221 #

2010 P Cr. L J 221

[Federal Shariat Court]

Before Haziqul Khairi, C. J., Muhammad Zafar Yasin and Syed Afzal Haider, JJ

GHULAM YASIN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.89/I and Criminal Murder Reference No.11/I of 2004, decided on 30th April, 2009.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 354---O}fence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10(3)/18---Qatl-i-Amd, assault and allegation of Zina---Appreciation of evidence---Sentence, reduction in---Sickle, weapon of offence, had been recovered from a room of the residential house of the accused at his pointation, which was found to be stained with human blood---Minor discrepancy in the evidence whether the sickle was recovered from the corner of the room or from a box lying in the room, was not very material---Occurrence had taken place in broad-daylight---Ocular testimony of the complainant and another eye-witness was fully corroborated by medical evidence---Record did not indicate false substitution of the accused in the murder case by letting off the real culprit---Murder of the deceased by accused was fully proved on record and his conviction and sentence of death under S.302(b), P.P.C. were consequently upheld---However, accused could only untie the string of the Shalwar of the victim and had not yet reached the stage to commit Zina with her, but still he was at the preparation stage and had used criminal force with intent to outrage her modesty---Conviction of accused under Ss.10(3)/18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was therefore altered to 5.354, P.P.C. and he was sentenced to two years' R.I. with fine thereunder---Appeal was disposed of accordingly.

Rafaqat Ali for Appellant.

Muhammad Aslam Uns for the Complainant.

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

Date of hearing: 14th. April, 2009.

PCrLJ 2010 FEDERAL SHARIAT COURT 231 #

2010 P Cr. LJ231

[Federal, Shariat Court]

Before Syed Afzal Haider, J

Mst. SHEHNAZ alias ASMA alias RANI and another----Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.142/L of 2005, decided on 14th November, 2008.

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

----S. 10(2)-Criminal Procedure Code (V of 1898), S.96---Appreciation of evidence---Search warrant---Application for---On receiving spy information with regard to running a brothel house by accused, complainant/Police Officer moved application to Illaqa Magistrate for issuance of search warrant---In said application neither the house required to be searched was identified nor was the informer produced before the Magistrate---On said application Magistrate passed order for, search warrant, but said order did not bear the seal of the court and search warrant was not issued in the prescribed form fulfilling the necessary conditions---Short order of the Magistrate did not show that there was material of any sort before him to make him believe that he must issue warrant---Magistrate did not realize that the issuance of a search warrant was a judicial act and the words `reason to believe' occurring in S.96, Cr.P.C., signified that there must be in existence justifiable grounds for the court to form that opinion which could be covered by the term "reason to believe "---As a consequence of the issuance of a search warrant, the Police Inspector raided the house without seeking permission and invaded the privacy of the house, guaranteed by the Constitution, without associating any respectable from the locality and started investigation without formally recording a crime report---Magistrate allowed application of Police Officer subject to the authenticity of the informer, which meant that Magistrate left it to the discretion of the Police Officer---Magistrate abjured his duty in favour of discretion of a Police Officer, which was certainly contrary to law---Investigation in the case, was defective---Main accused and his associates who, according to complainant/Police Officer, were controlling the brothel house had been acquitted as no evidence was on record to support their conviction---Alleged crime spot was reported to be in a village, but it was not possible to believe that the business of prostitution as recorded in F.I.R., was rampant and the neighbourhood in great agony, but none from the neighbourhood appeared either to witness a raid or to authenticate the element of recovery or to confirm the secret report the informer---Prosecution witness who was a journalist was a stock Police witness---Conviction and sentence recorded by the Trial Court against accused under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, could not be sustained, in circumstances.

Niamat Chacha Kata v. Summary Military Court No.2, Lahore PLD 1979 Lah. 279; Ghulam Muhammad alias Gama v. The State PLD 1981 FSC 120; Arshad Zubair v. The State 1993 SCMR 2059; Riaz v. Station House Officer PLD 1998 Lah. 35; Abdul Majeed v. Superintendent of Police PLJ 1998 Lah. 1158 and Nasreen v. Station House Officer 2001 PCr.LJ 685 rel.

(b) Islamic jurisprudence---

----Sanctity of the privacy of home or sanctity of "Chaddar and Chardevari, explained---Principles.

----S. 154---First Information Report---Object and purpose---Statutory duty was cast upon the officer of a Police Station to enter every information regarding the commission of a cognizable offence in a book maintained by such officer in the prescribed form---Such step, in ordinary parlance, was called the registration of First Information Report---Police Officer could not delay the recording of the F.I.R., once information regarding the commission of a cognizable offence had been given---Violation of that mandatory and pre-emptory duty was an aberration in Police discipline---Such a deviation in Police vocabulary was called Barking' which was punishable under Police Act and Police Rules---Use of wordshall' in S.154, Cr.P.C. indicated that it did not give discretionary power to the Police Officer to delay or refuse registration---Police Officer had no other option, but to proceed with registration of crime report without any delay---Aggrieved person had a right that his complaint about the commission of a cognizable offence, would be registered in the Police Station as a preliminary step before investigation was undertaken---Registration of First Information Report was a condition precedent to the launching of the investigation---Such a measure, would rule out the possibility of deliberation, consultation and enquiry before furnishing the information---Element of delay in lodging the crime report was to be-treated with caution because there was a tendency to involve innocent people during interval---Longer the intermission, the greater were the chances of false implication--Investigation that followed the registration of a crime, had more value than the -investigation which would precede registration of F.I.R.---Ordinarily there could be no investigation in a cognizable case without first registering the crime report---Having registered the case, the Police Officer could proceed with the investigation without a formal permission from the court which had the territorial jurisdiction to try that case.

M. Bashir Sehgal and others v. The State and others PLD 1964 Lah. 148; Rehman and others v. The State PLD 1968 Lah. 464; Shaman v. The State 1972 PCr.LJ 400; Hazoor Bakhsh v. Senior Superintendent of Police PLD 1999 Lah. 417; Saeed Ahmad v. Naseer Ahmad PLD 2000 Lah.208 and Mumtaz Hussain v. Deputy Inspector General PLD 2002 Lah. 78 ref.

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

----S. 154---First Information Report---Principles---Investigation--Irregularity or illegality in investigation by the Police---Aggrieved person had a right to report the matter to the Officer Incharge of a Police Station in order to set the process of law in motion---Police Officer was bound to reduce in writing said report---After having done that, Police Officer was empowered to initiate investigation into the correctness or otherwise of the complaint---Irregularity or illegality in the investigation by the Police, though would not vitiate the trial, but there was no bar for the court to refuse to acknowledge the result of conduct of Police Officer in utter violation of mandatory provisions of S.154, Cr.P.C.---Unnecessary haste on the part of the Police Officer to initiate investigation by visiting the place of occurrence on a secret information and opting to become an eye-witness; and then after initiating investigation himself becoming a complainant as well and getting a crime report registered, was certainly an action contrary to law and good conduct, which was liable to be ignored.

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

----Ss. 154 & 156---Information and investigation into cognizable case---Section 154, Cr.P.C. and S.156, Cr.P.C.-Distinction-Section 156, Cr.P.C. authorized an Officer Incharge of a Police Station to investigate any cognizable case within the jurisdiction of the Police Station without the order of a Magistrate; and such proceedings would not be called in question on the ground that the case was one which such officer was not empowered to investigate---Main difference between S.154, Cr.P.C. and S.156, Cr.P.C. was that S.154, Cr.P.C. would grant right to the aggrieved person to set the law in motion and empowered the Police Officer Incharge of the Police Station to formally reduce into writing the crime report on the complaint of the aggrieved person, that step having been taken, the Police was authorized to initiate investigation by visiting the spot, collecting evidence and effecting arrest of suspect offenders without the intervention of judicial order from the Magistrate---Such was what S.156, Cr.P.C. visualized.

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

----S. 10(2)---Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.22---Issue of search warrant---Under Art.22 of Prohibition (Enforcement of Hadd) Order, 1979 if any Collector, Prohibition Officer or a Magistrate upon information obtained and after enquiry would think necessary, could issue warrant for the search, but no corresponding provision existed in the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 which would authorize a Magistrate to issue search warrant; or authorize a Police Officer to enter the house upon information, that illegal sex was being committed---Offence of Zina (Enforcement of Hudood) Ordinance, 1979, did not contemplate creating evidence to convert a sex sin, being committed in the four walls of a house, into an offence punishable under said Ordinance.

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

----Ss. 7 & 8---Punishment for offence of Zina---Spirit of enacting S.8 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was to punish such offences which had been witnessed by at least four Muslims, adult and male eye-witnesses---Even in Tazir where the requirement of four witnesses was not essential, the direct evidence must be of a person who was a material witness; and not one who hunted sinner and then took pride in becoming a witness for the prosecution---Such a conduct was violative of the Injunctions of Islam which encouraged covering the sins of others.

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

----Ss. 156 & 157---Investigation into cognizable cases---Procedure where cognizable offence suspected---Provisions of the Code of Criminal Procedure, would apply mutatis matandis in respect of cases under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Section 157, Cr.P.C., however, authorized an Officer Incharge of a Police Station to investigate the facts and circumstances of the case; and if necessary could take measures for the discovery and arrest of the offender, if from information received, said officer had reason to suspect the commission of an offence, which he was empowered under S.156, Cr.P.C. to investigate; but even said section did not permit a Police Officer to enter the house and violate the privacy of the citizen.

Muhammad Aqil v. The State 1996 PCr.LJ 345 ref.

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

---Ss.75 & 555---Qanun-e-Shahadat (10 of 1984), Arts.88 & 112---Search warrant---No search warrant in the form set forth in the Fifth Schedule of Cr.P.C. as mandated by S.555, Cr.P.C., bearing the seal of the court as visualized by S.75 of Cr.P.C., was available on the record---Warrant was a public document and could have been proved by production of a certified copy as visualized by Art.88 of the Qanun-e-Shahadat, 1984---Only document on record, in the present case, was an application moved by the complainant requesting for issuance of a search warrant; which application was allowed by the Magistrate---Record failed to establish that a consequence of the order allowing the application conditionally, any search warrant, in accordance with the form prescribed in Schedule V of Cr.P.C. was issued directing the Police Inspector to perform a particular duty---No seal was affixed on the said application---Inference, however, could be drawn that the Police Officer wanted permission to effect arrest of a number of persons in a house where the offence was alleged being committed---General warrant to apprehend more than one person was, however neither authorized by Cr.P.C. nor by Offence of Zina (Enforcement of Hudood) Ordinance, 1979---All proceedings as a subsequent to submission of application were thus, void under clause (d) of sub Article (i) of Art.112 of the Qanun-e-Shahadat, 1984, the court was authorized to take judicial notice of "the seal of all the courts".

(j) Interpretation of statutes---

----Laws were subservient to Constitution and where the Constitution declared a right to be subject to law, it would not mean that the guarantee of the right had been taken away; in such an event the law must be followed strictly so that the guaranteed rights were duly honoured.

Abdul Hameed Khan Baloch for Appellants.

Raja Shahid Mahmood Abbasi, D.P.-G. for the State.

Date of hearing: 14th November, 2008.

PCrLJ 2010 FEDERAL SHARIAT COURT 595 #

2010 P Cr. L J 595

[Federal Shariat Court]

Before Muhammad Zafar Yasin and Syed Afzal Haider, JJ

GHULAM NABI----Appellant

Versus

MUHAMMAD ASHRAF and another----Respondents

Crl. P.S.L.A. No.36/L of 2005, decided on 28th September, 2009.

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

----S. 11---Constitution of Pakistan (1973), Arts.203-D & 203-DD-'Qazf', liable to `Tazir'---Trial Court framed charge against respondent/accused under S.11 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 and after completing nodal formalities of the trial, acquitted him of the charge---Validity---Held, in order to disturb an order of acquittal, impugned judgment must be shown to be fanciful, arbitrary and shocking in nature---Impugned judgment neither being fanciful nor arbitrary, same could not be interfered with---Mere fact that another opinion was possible was not enough to issue notice to respondent---Petition was dismissed.

Muhammad Azam and others v. The State 2009 SCMR 1232 ref.

Syed Samar Hussain for Appellant.

Ch. Salamat Ali Haidery for Respondent.

Malik Abdus Salam, D.P.-G. for the State.

Date of hearing: 28th September, 2009.

PCrLJ 2010 FEDERAL SHARIAT COURT 604 #

2010 P Cr. L J 604

[Federal Shariat Court]

Before Syed Afzal Haider, J

ZAFAR IQBAL----Appellant

Versus

ZAREENA BIBI and another----Respondents

Criminal Appeal No.295/L of 2006, decided on 30th July, 2009.

(a) Islamic jurisprudence---

----Injunctions of Islam---Words and phrases---TAUBA---Concept---Theme---"TAUBA" is not only a fundamental stone of the social life of Muslims, but is a remarkable concept given by the Holy Qur'an---Allah loves those who seek forgiveness, pardon and promise to behave in future---Central theme in "TAUBA" is repentance on those past wrongs and matters which are deemed reprehensible in the domain of religion---Holy Qur'an makes "TAUBA" almost obligatory for the believing man and woman---"TAUBA" erases the bad and evil effects of the sinful acts---Allah likes those who seek forgiveness---In matters of false accusation of adultery and the punishment thereof the Holy Qur'an makes things easy for those who repent---Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979), S.11.

Ayat 114 of Sura 11 of the Holy Qur'an ; Ayat 3 of Sura 110; Ayat 222 of Sura 2; Ayat 31 of Sura 24; Ayaat 70 and 71 of Sura 25; Ayat 82 of Sura 20; Ayat 31 of Sura 4 and Ayaat 4, 5 of Sura Nur i.e. 24 Sura ref.

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

----S. 11---Qazf liable to Tazir---Appreciation of evidence---Sentence, reduction in---Trial Court had disbelieved the allegation made by the divorced wife of the accused against him regarding oral accusation of Zina against her inside and outside the Court---Accused had withdrawn his application moved before the Family Court for DNA test to determine the paternity of the minor daughter in custody of his ex-wife (complainant) and continued to pay maintenance allowance to the minor, which had been accepted by the complainant---Matter, thus, had ended there and then---Conduct of accused thereafter for the last five years was never challenged---Reassurance of accused that he would continue supporting his minor daughter had further recommended his case---Accused had tendered apology for his past behaviour in the open Court as well---Ayaats 4 and 5 of Sura Nur of the Holy Qur'an deal with false accusation of adultery and the punishment thereof and make things easy for those who repent---Sentence of two years' R.I. of accused was reduced to the imprisonment already undergone by him in circumstances.

Ayat 114 of Sura 11; Ayat 3 of Sura 110; Ayat 222 of Sura 2; Ayat 31 of Sura 24; Ayaat 70 and 71 of Sura 25; Ayat 82 of Sura 20 and Ayat 31 of Sura 4 ref.

Ayaat 4 and 5 of Sura Nur i.e. 24 Sura rel.

Sh. Khizar Hayat for Appellant.

Ch. Akhtar Hussain for the Complainant.

Arif Karim Chaudhry, Dy.P.-G. for the State.

Date of hearing: 30th July, 2009.

PCrLJ 2010 FEDERAL SHARIAT COURT 620 #

2010 P Cr. L J 620

[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.

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

----S. 16---Enticing or taking away or detaining a woman with criminal intent---Sessions Court had dismissed the application of accused filed under S.265-K, Cr.P.C. for acquittal---Validity---Alleged abductee, according to record, had voluntarily stated before the Magistrate that she had left the house of her parents of her own and had not been abducted by anyone, nor she had been subjected to illicit intercourse---There was no mention of the element of force or enticement in the F.I.R. itself---Any other statement if made by the abductee subsequently would amount to improvement and if she would come in the Court to state that she was never abducted or enticed away and was never subjected to sexual intercourse by anybody, then any action against the accused would be sheer waste of time, as their trial was not likely to succeed---Impugned order was consequently set aside and accused were acquitted accordingly.

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 2010 FEDERAL SHARIAT COURT 636 #

2010 P Cr. L J 636

[Federal Shariat Court]

Before Muhammad Zafar Yasin, J

GHULAM QADIR----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.8/Q of 2005, decided on 30th October, 2009.

Penal Code (XLV of 1860)---

----S. 395---Dacoity---Appreciation of evidence---Out of five culprits mentioned in F.I.R. trial and conviction of accused alone under S.395, P.P.C. was not legal---Separate conviction of accused under S.412, P.P.C. in another F.I.R. for recovery of the Pick-up of the complainant from him, robbed in the dacoity, by the same Court on the same date, had amounted to double jeopardy---Complainant had not claimed to have picked up the accused in the identification parade, nor the accused admittedly was under arrest in the present case at the time of holding the identification parade---Complainant also did not identify the accuse in the Court as a robber of his Pick-up---Prosecution had withheld the best available evidence of the nephew of the complainant, who was present at the time of the alleged robbery and could independently identify the accused and corroborate the prosecution version---Despite recovery of the Pick-up the same had not been produced in the Court in the instant case as robbed property to support the prosecution case---Benefit of every doubt arising in the case had to go to the accused---Accused was acquitted in circumstances.

Ali Ahmad Kurd for Appellant.

Qazi Abdul Malik for the State.

Date of hearing: 30th October, 2009.

PCrLJ 2010 FEDERAL SHARIAT COURT 862 #

2010 P Cr. L J 862

[Federal Shariat Court]

Before Syed Afzal Haider, J

IJAZ HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.91/L of 2007, decided on 30th March, 2009.

Penal Code (XLV of 1860)---

----Ss. 377 & 337-J---Commission of unnatural offence and causing hurt by an intoxicant---Appreciation of evidence---Sentence, reduction in---Statement of the victim boy was corroborated by medical evidence as well as the report of Chemical Examiner---Defence plea taken by accused was not believable---Both the charges stood proved against the accused---Accused was the first offender and sentence of ten years' R.I. awarded to him under S.377, PPC was, therefore, reduced to six years' R.I.---Except reduction in the said sentence appeal was dismissed.

Muhammad Azam v. State 2008 PCr.LJ 250 distinguished. Saeed Khursheed Ahmed for Appellant.

Miss Shabnam Rasheed Abbasi, Deputy Prosecutor-General for the State.

Date of hearing: 30th March, 2009.

PCrLJ 2010 FEDERAL SHARIAT COURT 879 #

2010 P Cr. L J 879

[Federal Shariat Court]

Before Syed Afzal Haider and Shahzado Shaikh, JJ

MANSAB DAR and 6 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.5/L of 2009, decided on 2nd April, 2010.

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

----Ss. 11, 10(3) & 10(2)---Abduction, Zina-bil-Jabr, Zina-bil-Raza---Appreciation of evidence---Sentence, reduction in---Zina-bil-Jabr by accused with complainant was not proved on record---Consensual relationship between the complainant and the accused could not be ruled out, which was not only admitted on behalf of accused, but was also supported by medical evidence---Delay of four days in recording the F.I.R. was not explained by the prosecution---Despite the names of accused having been brought to the notice of the family members of the abductee, they did not take any prompt action in the matter---Abductee was not recovered from the accused---Recovery of gun from the house of principal accused was doubtful, which was not even sent to Forensic Science Laboratory for examination---Investigating Officer after having found the accused, charged for abduction, innocent had recommended their discharge from the case---Material improvement qua the search of the abductee had been introduced in evidence by a chance prosecution witness--Finding of guilt could not be based on high probabilities---Abductee was a consenting party and nothing having been done against her will, S.11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was not attracted in the case and accused were acquitted of this charge accordingly---Conviction of principal accused under S.10(3) of the said Ordinance was altered to S.10(2) thereof in view of the foregoing circumstances and his sentence thereunder was reduced to the period already undergone by him with fine---Appeal was disposed of accordingly.

Amanullah v. The State 1993 SCMR 1806; State v. Khuda Bux 2004 SCMR 425 and Mohammad Sadiq v. Emperor AIR 1938 Lah. 474 ref.

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

----Ss. 11 & 10(3)---Abduction, Zina-bil-Jabr---Trend to involve innocent persons along with the real culprit---Judicial notice taken by court---Course of action prescribed---Five accused other than the principal accused had been involved in the proceedings without any justification, who had to face the harrowing period of investigation, the travail of the trial and additional pain in the Appellate Court---Each one of the said accused had already been in jail for almost two years---Such trend to involve innocent persons along with the real culprit was unfortunate---Case was not one of abduction---Complainant ought to have been charged along with the principal accused as a consenting party---Complainant alone was not responsible for initiating the complaint, who was apparently supported by her father and other witnesses---Trial Court was directed to issue notices to the complainant, her father and other material prosecution witnesses in the case and to fix their liability and send a comprehensive report in this regard to the Federal Shari at Court by a specified date---Trial Court, apart from considering the possibility of imposing fine upon the complainant and other witnesses by way of compensation to be paid to all those who were charged and convicted under S.11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, would also try to ascertain whether a case of perjury could be registered against the defendants---Speaking order was directed to be passed by Trial Court after recording statements of the complainant and other witnesses---Trial Court was further directed to summon the acquitted accused, if deemed necessary, in order to find out whether the concerned F.I.R. registered at the police station and the subsequent complaint lodged by the complainant was motivated or otherwise---Court is duty bound to watch the interest of all the parties before it so that process of the court is not abused.

Mehram Ali Bali for Appellants.

Miss Shabnam Rasheed Abbasi for the State.

Date of hearing: 31st March, 2010.

PCrLJ 2010 FEDERAL SHARIAT COURT 1425 #

2010 P Cr. L J 1425

[Federal Shariat Court]

Before Syed Afzal Haider, J

MOHSIN---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No. 6-I of 2008, decided on 14th January, 2009.

Penal Code (XLV of 1860)---

----S.377---Constitution of Pakistan (1973), Art. 203-DD---Unnatural offence---Appeal returned as being non-maintainable---FIR was registered under S. 377, PPC and the accused was charged, tried and convicted under S. 377, PPC---Accused was neither charged nor convicted under the Hudood Laws---Moreover, impugned judgment had been delivered by the Sessions Court, Gwadar, Baluchistan---Federal Shariat Court, therefore, was not competent to entertain and adjudicate upon the present jail criminal appeal, which should have been filed before the High Court of Balochistan---Appeal being not maintainable before the Federal Shariat Court, was directed to be sent to Registrar, High Court of Balochistan, for proper presentation in accordance with law, with information to the accused through the Superintendent Jail concerned.

Masood Shaharyar for Appellant.

Zahoor Ahmad Shahwani, Additional Prosecutor-General Baluchistan for the State.

PCrLJ 2010 FEDERAL SHARIAT COURT 1750 #

2010 P Cr. L J 1750

[Federal Shariat Court]

Present: Haziqul Khairi, C. J., Muhammad Zafar Yasin and Syed Afzal Haider, JJ

MUHAMMAD MUKHTIAR alias MOJU---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No. 77/I and Criminal Murder Reference No. 7/I of 2008, decided on 28th April, 2009.

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

----Art. 19--- Circumstantial evidence, appreciation of---Principles: (i) Circumstances from which the conclusions are drawn should be fully established, (ii) Facts must be consistent with the hypothesis, Circumstances should be of a conclusive nature and tendency, and Circumstances should, to a moral certainty, actually exclude every hypothesis, but the one proposed to be proved.

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

----S. 10(3)-Penal Code (XLV of 1860), Ss. 302(b) & 201---Zina-bil-jabr, Qatl-e-amd, causing disappearance of evidence of offence of murder---Appreciation of evidence---Benefit of doubt---Prosecution case depended solely upon circumstantial evidence---Evidence of "last seen" having been based on different stands taken by the prosecution witness, was incomprehensible and of no value---Possibility could not be ruled out that the deceased child fell in the canal in the morning and after bringing out her dead body from the canal the matter was reported to the police at noon time---Depositions made by the prosecution witnessed about the extra judicial confession made by accused before them, had an intriguing similarity of the words and the sequence employed therein, but despite such similarity they had made contradictory statements regarding their attitude towards the accused after he had confessed his guilt---Even otherwise,. extra judicial confession allegedly made by accused before two persons at the same time was of no value---Complainant was suspecting the accused of carrying on with his wife and bore a grudge against the accused as he had informed the complainant about the unfaithfulness of his wife---Nothing incriminating was recovered from the accused either before or after the confession to connect him with the offence---Prosecution case rested merely upon suspicious-Extra-judicial confession made by accused before two persons at one and the same time could not corroborate the "last seen" evidence of the nature produced in the case-Accused was acquitted on benefit of doubt in circumstances.

Mohabbat v. The State 1990 PCr.LJ 73 and Muhammad Aslam and another v. The State 2003 SCMR 862 ref.

----S. 164-Extra-judicial confession---Nature and evidentiary value--Extra-judicial confession is a weak piece of evidence, it must be corroborated by independent and dependable evidence and shown to have been voluntarily and truly made-Extra-judicial confession made by accused before two persons at the same time is of no value.

Muhammad Aslam and another v. The State 2003 SCMR 862 ref.

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

----Art. 19---Circumstantial evidence---Benefit of doubt---Principle---In a case of circumstantial evidence prosecution cannot claim conviction if a single doubt is created about any link of the circumstances.

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

----Ss. 302(b) & 201---Appreciation of evidence---Corroboration---Principle---One weak piece of evidence does not corroborate another weak piece of evidence.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Principles: (i) Prosecution must stand on its own legs and prove the case against the accused beyond reasonable doubt, as the onus of proof lies heavily upon it, (ii) Satisfaction about the murder having been committed is not sufficient,- but judicial mind must be satisfied that the accused has committed the offence, (iii) Accused alone is entitled to the benefit of every reasonable doubt and not the prosecution, (iv) Quality and not the quantity of evidence determines the culpability of the accused, (v) Accused cannot be held guilty on the strength of weak piece of evidence emanating from a doubtful source, (vi) Conjectures, probabilities or presumption cannot form the basis for holding the accused guilty, and the' same can never substitute direct evidence or deposition coming from an independent and reliable source.

M. Javed Aziz Sandhu for Appellant.

Shafaqat Ullah Butt, Deputy Prosecutor-General, State Counsel.

Date of hearing: 28th April, 2009.

PCrLJ 2010 FEDERAL SHARIAT COURT 1824 #

2010 P Cr. L J 1824

[Federal Shariat Court]

Before Syed Afzal Haider, J

BASHIR AHMAD and another---Appellants

Versus

MAQSOOD AHMAD and another---Respondents

Criminal Appeal No. 125/L of 2005; decided on 21st March, 2009.

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

----S. 11---Qazf liable to Ta'zir---Appreciation of evidence--Complainant and both accused were consanguine brothers---After the death of their father a dispute arose regarding the land and in a civil suit filed by the complainant the accused in their written statement dubbed the complainant as bastard and asserted that the mother of the complainant had become pregnant while she was unmarried and that after the birth of the complainant their father had entered into Nikah with the mother of complainant---Complaint filed by complainant culminated into conviction and sentence of accused for having committed Qazf liable to Ta'zir---Validity---Imputation of Zina to the mother of a person and claiming the other person as a bastard was a very serious matter---There was no proof whatsoever that the deceased father of the complainant had entered into a marriage with his mother after he was born as a result of Zina---Accused had not only intended to harm the complainant, but had reason to believe that the said imputation would harm his reputation and also hurt his feelings, particularly. when the mother of complainant was the lawfully wedded wife of his father---Slanderer thus, did not deserve any sampathy whatsoever---Holy Quran in very clear terms in "Surah Bani Israeel" declares and upholds the principle of human dignity and ordains that every person born in this world without reference to colour, caste and creed was clothed with dignity, which is a free gift from Allah Almighty and no human being has the authority to tear as under the cloak of honour conferred by the Lord Creator; it is a fundamental right which is not dependent on the sanction of human Legislation and is excellent in the highest degree---Edifice of social interaction is built upon the said edict---Persons in authority were duty bound to honour the concept of human dignity and to establish such right would tantamount to enforcing a Divine Injunction---Conviction and sentence of accused were upheld accordingly with the exception of sentence of ten stripes, which was set aside.?

Bakht Ali and another v. The State 1993 PCr.LJ 1872 distinguished.

Surah Bani Israeel ref.

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

----Art 14---Dignity of man---Sanctity and inviolability of human dignity---Holy Quran in very clear terms in "Surah Bani Israeel" declares and upholds the principle of human dignity---According to this Islamic Injunction every person born in this world without reference to colour, caste and creed is clothed with dignity; it is a free gift from Allah Almighty and no human being has the authority to tear as under the cloak of honour conferred by the Lord Creator; it is a fundamental right which is not dependent on the sanction of human Legislation and is excellent in the highest degree---Edifice of social interaction is built upon this edict; and it is the duty of persons in authority to honour the concept of human dignity---To establish such right is tantamount to enforcing a Divine Injunction. ?

Surah Bani Israeel ref.

Syed Fiaz Ahmad Sheerazi for Appellants.

Sardar Nazar Hussain Dogar for the Complainant.

Qazi Zafar Iqbal, Additional Prosecutor-General for the State.

Date of hearing: 19th March, 2009

PCrLJ 2010 FEDERAL SHARIAT COURT 1858 #

2010 P Cr. L J 1858

[Federal Shariat Court]

Before Syed Afzal Haider, J

MUHAMMAD TARIQ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 52/L of 2009, decided on 17th November, 2009.

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

----S.12---Penal Code (XLV of 1860), S.377---Kidnapping or abducting in order to subject person to unnatural lust---Appreciation of evidence---Delay in lodging the F.I.R. had been plausibly and satisfactorily explained, which had not been specifically challenged at the trial by the accused---Victim and other eye-witness while corroborating each other had made consistent, straightforward and precise statements, which inspired confidence---Defence had failed to establish mala fides on the part of prosecution witnesses---Mere assertion of pending litigation was not sufficient to support the defence---Taking of victim to an adjoining "Hoveli" from a walk way for sodomy would not be covered by the offence of kidnapping and accused, therefore, was acquitted of the charge under S. 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Testimony of the victim corroborated by the eye-witness was fully supported by the medical evidence as well as the Chemical Examiner's Report---Impugned judgment was well reasoned and met all the necessary requirements---Trial Court having exercised its discretion judiciously, sentence awarded to accused was by no standard excessive---Conviction and sentence of accused under S. 377, P.P.C. were maintained accordingly.

Saleem Khan and others v. State and others 2001 PCr.LJ 503 and Muhammad Tufail v. State PLD 1984 Federal Shariat Court 23 ref.

Syed Shabahat Hussain Tirmazi and Ch. Muhammad Nazir for Appellant.

Muhammad Arif Awan for the Complainant.

Ch. Abdul Razzaq, Deputy Prosecutor-General for the State.

Date of hearing: 6th October, 2009

Gilgit Baltistan Chief Court

PCrLJ 2010 Gilgit Baltistan Chief Court 1311 #

2010 P Cr. L J 1311

[Gilgit-Baltistan Chief Court]

Before Sahib Khan and Muzaffar Ali, JJ

DOULAT ALI and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeals Nos. 15 and 16 of 2008, decided 13th April, 2010.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9, 10, 18, 19, 24 & 32---Misuse of authority, corruption and corrupt practices---Appreciation of evidence---Investigation in the case was conducted by a person who posed himself to be Investigating Officer, whereas he was not duly authorized by the Chairman NAB to conduct the investigation in the case under S.18(c) of National Accountability Ordinance, 1999---Interference of Federal Investigation Agency in the case was also in violation of S.18(d) of the Ordinance---Procedure provided by S.18 of the National Accountability Ordinance, 1999 was mandatory in nature and the Chairman NAB was bound to follow the special procedure to proceed a person against, under the said Ordinance---In the present case, not. only mandatory procedure provided by S.18(c)(d)(g) of National Accountability Ordinance, 1999 had been violated, but S.19 of the Ordinance had also been violated---Such violations were not merely technical, but the entire investigation, inquiry, appraisal of the evidence and calling of persons for information in the case and the report submitted under S.173, Cr.P.C. by a self-assumed Investigating Officer, were nullity and without any legal sanction---In the present case conditions precedent envisaged in S.18(c)(d)(e)(g) and S.19 of the National Accountability Ordinance, 1999 having been utterly and obviously violated, proceedings followed by the void investigation conducted by the officer without authority, had become void, illegal and without jurisdiction---Reference made by the Chairman NAB under S.18(a) of National Accountability Ordinance, 1999 and trial by Accountability Court was vitiated---Entire proceedings against accused persons in the case being nullity and without jurisdiction, conviction and sentence awarded were set aside and they were acquitted, in circumstances.

Islamuddin Shaikh v. Federation of Pakistan and others PLD 2001 SC 419; Khan Asfandyar Wali's case PLD 2001 SC 607 and Rashid Ahamad v. The State PLD 1972 SC 271 ref.

Muhammad Issa and Raja Shakeel Ahmed for Appellants.

Nisar Ahmad, Special Prosecutor for the State (NAB).

Date of decision: 13th April, 2010.

PCrLJ 2010 Gilgit Baltistan Chief Court 1402 #

2010 P Cr. L J 1402

[Gilgit-Baltistan Chief Court]

Before Raja Jalal-ud-Din, C.J. and Sahib Khan, J

SADAQAT JAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 13 and Criminal Revisions Nos.11, 12 of 2009, decided on 18th May, 2010.

Penal Code (XLV of 1860)---

----S. 302/34---Anti-Terrorism Act (XXVII of 1997), Ss.6/7---West Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-e-amd---Terrorism and possession of arms---Appreciation of evidence---Benefit of doubt---Accused had been implicated for commission of offence along with two other persons, who had been assigned equal roles without any difference---One of the prosecution witnesses had stated that she saw the accused opening fire shot at the deceased and did not charge the other accused persons---Another prosecution witness had also improved his statement recorded under S.161, Cr.P.C. regarding dying declaration of deceased wherein accused had been nominated as assailant---Statement of another witness was recorded 23 days after the occurrence who had stated that he saw the accused running away from the place of occurrence after hearing the fire shots---Statement of said witness was not confidence inspiring in the light of his delayed statement under S.161, Cr.P.C.; he was not an eye-witness of the occurrence, but he had stated that he saw one person lying in the channel after firing of shots---Said witness had not mentioned the presence of other witnesses at the spot---Good prima facie case did not exist against accused for his conviction on the basis of other material placed on record---Original report of Fire Arms Expert was not placed on record but a photo copy of the same was found in the file and number of the pistol mentioned therein was different as shown in the recovery memo.---Prosecution, in circumstances, had failed to prove its case beyond any reasonable doubt and statements of prosecution witnesses were not worth relying---While giving benefit of doubt to the accused, his conviction and sentence, was set aside and he was directed to be released.

2009 SCMR 84; 1998 PCr.LJ 1486; 2001 PCr.LJ 754; 1983 SCMR 1292; PLD 1998 SC (AJ&K) 207, 1993 SCMR 550; 2007 SCMR 1825; 1996 MLD 1111, PLD 1964 SC 26; PLD 1963 SC 17; 2001 PCr.LJ 453; 2000 PCr.LJ 1799; 1990 PCr.LJ 707; 1985 PCrLJ 451; 1990 PCr.LJ 1765; PLD 2003 SC 350; 2002 SCMR 1842; 1997 SCMR 89 and 2000 MLD 605 ref.

Malik Haq Nawaz for Appellant.

Deputy Advocate-General for the State.

Amjad Hussain for the complainant.

Date of hearing: 18th May, 2010.

PCrLJ 2010 Gilgit Baltistan Chief Court 1415 #

2010 P Cr. L J 1415

[Gilgit-Baltistan Chief Court]

Before Raja Jalal-ud-Din, C.J. and Sahib Khan, J

EHSANULLAH and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 04 of 2009, decided on 21st April, 2010.

Penal Code (XLV of 1860)---

----Ss. 302(b)/324/34---Anti-Terrorism Act (XXVII of 1997), Ss.6/7---West. Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-e-amd and attempt to commit qatl-e-amd---Terrorism and possession of arms---Appreciation of evidence---Benefit of doubt---Fire shots received by the deceased and injured were from a high velocity fire-arm and not from a low velocity gun such as a Repeater, which was a shotgun for hunting birds---Spot inspection was conducted well in time which gave no time to the prosecution to plant empties of any other calibre and also sealed the chance of inclusion of any other innocent person as accused---Benefit of doubt could be extended to two co-accused out of three as the opening of fire shots by said two co-accused was a far fetched probability and their involvement could be a result of the sectarian hatred whereby the maximum number of persons of the other sect could be put to task---Anti-Terrorism Act, 1997 which was a special law provided for the offences committed under S.6 of said Act, would override the provisions of general law as the offence of murder had been provided in the schedule of Special Law wherein the offence was punishable with death---In the light of the statements of the prosecution witnesses, the recoveries, the motive and the other circumstances of the case, prosecution had proved the fact of murder of the deceased and injuries sustained by four other persons---Prosecution had proved its case to the hilt against the accused---Case under S.13 of West Pakistan Arms Ordinance, 1965 was also proved against said accused; his conviction and sentence was upheld and murder reference to his extent was answered in affirmative, however benefit of doubt was extended to other two accused persons and their conviction and sentence were set aside and they could be released.?

1989 SCMR 2056; 1992 SCMR 2088; 2009 PCr.LJ 940; PLD 1988 Kar. 521; 1993 SCMR 550; 2001 SCMR 424 SC; 1986 PCr.LJ 637; 1974 PCr.LJ 400; PLD 1964 SC 26; 2007 SCMR 162 SC; 2000 SCMR 1758 SC; 1993 SCMR 2377 SC; PLD 1964 Kar. 356; PLD 2003 SC 350; 1994 MLD 164; 1989 PCr.LJ 43 and 2000 PCr.LJ 47 ref.

Malik Haq Nawaz for Appellants.

Deputy Advocate-General for the State.

Amjad Hussain for the Complainant.

Date of hearing: 21st April, 2010.

High Court Azad Kashmir

PCrLJ 2010 HIGH COURT AZAD KASHMIR 1770 #

2010 P Cr. L J 1770

2010 P Cr. L J 73

[Karachi]

Before Khadim Hussain M. Shaikh, J

MUSHIQUE SANGAH and 2 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.S-28 of 2006 and M.As. Nos.361, 362 of 2009, decided on 20th May, 2009.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S.345---Appreciation of evidence---Compromise---During pendency of appeal the legal heirs of deceased had compromised with accused persons---Accused persons filed two applications, one under S.345(2), Cr.P.C. seeking permission to compound the offence and other under S.345(5), Cr.P.C. praying for accepting the compromise and acquitting them---Along with said applications prescribed pro formas and affidavits of all the legal heirs of the deceased had been filed in which they had stated that they had patched up with them and had pardoned them without any consideration or compensation and that they had waived their right of Qisas and Diyat---All legal heirs appeared in court and repeated their said averment before the court, without raising any objection against setting aside the conviction and sentence awarded to accused persons and against their acquittal---Applications were allowed and conviction and sentence awarded to accused persons were set aside and they were acquitted and released.

Asif Ali Abdul Razak Soomro for Appellants.

Naimatullah Bhurgri for the State.

Date of hearing: 20th May, 2009.

PCrLJ 2010 KARACHI HIGH COURT SINDH 81 #

2010 P Cr. L J 81

[Karachi]

Before Amer Raza Naqvi, J

WAFA NAWAZ ALI----Applicant

Versus

SARDAR ALI and 9 others----Respondents

Criminal Revision Application No.S-30 of 2007, decided on 15th May, 2009.

Penal Code (XLV of 1860)---

----Ss. 302, 201, 404, 148 & 149---Collection of case property for reexamination---When case was being tried by the Trial Court, an application was made by Investigating Officer for collection of case property for re-examination to be conducted by a Board constituted by Health Department and the Trial Court allowed such request---Thereafter complainant filed application before the Trial Court requesting that the Trial Court should refuse request of Investigating Officer for returning of case property, which application was dismissed---Validity---Request for collection of property was made after two years, eight months and six days, which was allowed within three days of said request---No permission for constitution of Board was obtained from the Trial Court and it was constituted by the Health Department; and no plausible reason had been advanced for not applying to the Trial Court for re-examination of case property---Since no permission was obtained from the. Trial Court for constitution of Board for re-examination of the property, proceedings of re-examination of the case property were not proper and were made in violation of guidelines provided by Supreme Court.

State v. Amjad Ali PLD 2007 SC 85 ref.

Ghulam Sabir Shar for Applicant.

Sher Muhammad Shar for Respondents Nos.1 to 9.

Ali Haider Ada Station Counsel for Respondents Nos.10 and 11.

PCrLJ 2010 KARACHI HIGH COURT SINDH 86 #

2010 P Cr. L J 86

[Karachi]

Before Munib Ahmed Khan and Muhammad Karim Khan Agha, JJ

ATTAULLAH and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.37 of 2008, decided on 30th May, 2009.

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

----Ss. 6/9(c)---Appreciation of evidence---Alleged lacuna in the evidence of Investigating Officer, could not be a material to reflect doubt on the case of prosecution---Investigating Officer had supported the prosecution case, while other witnesses had deposed on factual position, which had not been shaken in the cross-examination---No enmity was brought on record---Recovery of the Charas and its positive test was available on record---Charas had been recovered from the truck in question---Plea that the link of accused with the truck in the capacity as owner or the driver, had not been established, was not a legal requirement; as the case was to be decided on the basis of facts which had come on record, which had been done through implicating evidence.

Amanat Ali v. State 2008 SCMR 991; Gul Dast Khan V. State 2009 SCMR 431; Mamraiz Khan v. Government of Pakistan PLD 1995 SC 512; Zafar v. State 2008 SCMR 1254; Muhammad Khan v. State 2008 SCMR 1616; Muhammad Aslam v. State PLD 1968 Lah. 964; Waris Hussain Shah v. Abid Hussain Shah 2001 PCr.LJ 268; Doshail Hameed v. Federation of Pakistan PLD 1993 FSC 45; Dilbar Masih v. State 2006 SCMR 1801; Muhammad Ilyas v. Khadim Hussain 2006 SCMR 1761 and Muhammad Azam v. State PLD 1996 SC 67 ref.

Amanullah Kanrani for Appellants.

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

Date of hearing: 20th May, 2009:

PCrLJ 2010 KARACHI HIGH COURT SINDH 93 #

2010 P Cr. L J 93

[Karachi]

Before Amer Raza Naqvi, J

NADEEM----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.67 of 2008, heard on 4th May, 2009.

Penal Code (XLV of 1860)---

----S. 302---Murder---Appreciation of evidence---Allegation against accused was that he strangulated deceased in presence of complainant, but post mortem report produced by the Doctor who was also examined, was contrary to said ocular evidence as Doctor had specifically mentioned that death of deceased occurred due to asphyxia as a result of hanging caused by ligature--No enmity was alleged against the Doctor who was so confident about her finding---Evidence of said Doctor could not be brushed aside---Such situation had created a lot of doubt about the incident to have happened as alleged by the eyewitness---All witnesses produced by the prosecution were close relatives of deceased, two being brothers of deceased and one uncle of deceased-.--All said three witnesses had deposed that they were present at the time of incident and deceased was murdered in their presence--No explanation had been given by said witnesses that why they did not make any effort to save the deceased or even to apprehend accused--Claimed presence of witnesses, in circumstances, was highly doubtful at the time of incident---Was not believable that accused who was empty handed was able to kill the deceased in presence of her two brothers and one uncle---State Counsel in view of said facts and circumstances did not support impugned order---Prosecution had failed to prove its case beyond any reasonable doubt and the Trial Court was not justified to convict and punish accused.

2008 SCMR 95 and PLD 2007 SC 637 ref.

Ghulam Sarwar Korai for Appellant.

Ali Haider Ada, State Counsel.

Date of hearing: 4th May, 2009.

PCrLJ 2010 KARACHI HIGH COURT SINDH 98 #

2010 P Cr. L J 98

[Karachi]

Before Arshad Noor Khan and Amer Raza Naqvi, JJ

MUZAMIL and another----Petitioners

Versus

THE STATE and another----Respondents

Constitutional Petitions Nos.D-136 and D-184 of 2009, decided on 28th April, 2009.

Penal Code (XLV of 1860)---

----Ss. 302, 342, 201, 337-A(i), F(i), 148 & 149---Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 23---Constitution of Pakistan (1973), Art.199---Constitutional petition---Transfer of case to regular/ordinary court---Petitioners/accused in one criminal case, had committed murder of two minor kids by way of slaughtering their throats in presence of complainant and other eye-witnesses after fastening the complainant and witnesses---Accused persons took the dead bodies of both deceased and buried those at the scene of the offence in a ditch---In second case the accused persons had committed triple murders by firing with K.Ks. on their victims and causing fire-arm injuries to prosecution witnesses---After receipt of challan, the accused filed application under S.23 of Anti-Terrorism Act, 1997 for transfer of case to Sessions Court contending that under the circumstances of the case no case of terrorism .was made out to attract the provisions of S.6 of Anti-Terrorism Act. 1997---Validity---Term `terrorism' had wide meaning and for the purpose of assessment as to whether sense of fear and insecurity spread amongst the public at large, the manner in which the incident took place, coupled with the place, where the incident took place were very material---Brutal act of murder at public place was sufficient to hold that by the act of the commission of murder at public place, terror would strike amongst the public at the said locality where incident took place and S.6 of Anti-Terrorism Act, 1997 would attract---Details of incident in the case had shown that by the act of the accused persons brutally killing two minor children and three other innocent persons at public place, sense of fear and insecurity amongst the public at large was created---In killing three persons by using K. Ks. at public place and injuring three prosecution witnesses, the accused had shown their brutality which had created sense of fear and insecurity amongst the persons of that locality---For the purpose of ascertaining the fact of creation of sense of fear and insecurity amongst the people at large, it was not necessary that evidence must be recorded by the court to arrive at such conclusion but the facts contained in the F.I.R. and the nature of the offence committed at the public place, were sufficient to assess as to whether the sense of fear and insecurity was created amongst the public-at-large---In the present case, the two minors had been brutally slaughtered and three were killed at public place by inflicting injuries from Kalashnikov---Application for transfer of case to ordinary/Sessions Court, was rightly dismissed by the Special Court.

Mohabbat Ali and another v. The State 2007 SCMR 142; Niaz Ahmed v. The State 2009 MLD 616; Ch. Bashir Ahmed v. Naveed Iqbal and 7 others PLD 2001 SC 521; Bashir Ahmed v. Muhammad Siddique and others PLD 2009 SC 11; Mst. Raheela Nasreen v. The State 2002 SCMR 908; Naeem Akhtar v. The State PLD 2003 SC 396; Shaikh Muhammad Amjad v. The State PLD 2003 SC 704 and Abdul Ghafoor Bhatti v. Muhammad Saleem PLD 2003 SC 1934 ref.

S. Mushtaq Hussain Shah for Petitioners.

Ghulam Shabir Dayo for Respondent No.2 (in C.P. No.D-184 of 2009).

Liaquat Ali Shar, Addl. A.-G, for the State with Complainant.

Date of hearing: 28th April, 2009.

PCrLJ 2010 KARACHI HIGH COURT SINDH 110 #

2010 P Cr. L J 110

[Karachi]

Before Munib Ahmed Khan and Syed Shafqat Ali Shah Masoomi, JJ

JANOO alias JAN MUHAMMAD----Appellant

Versus

THE STATE----Respondent

Criminal Jail Appeal No. D-79 of 2007, heard on 8th July, 2009.

Penal Code (XLV of 1860)---

----Ss. 302(b)/149 & 324/149---Appreciation of evidence---One person had lost his life and some persons had been injured in the occurrence---Nineteen co-accused had been acquitted by Trial Court on the basis of contradictory prosecution evidence brought on record---Accused was simply named in the F.I.R. and no role whatsoever had been assigned to him in the occurrence---Participation of accused in the incident was doubtful---Accused .was acquitted in circumstances.

Ali Ahmed Khan for Appellant.

Sham Lal, A.P.-G. for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 115 #

2010 P Cr. L J 115

[Karachi]

Before Arshad Noor Khan, J

SHAMSUDDIN and 2 others----Applicants

Versus

THE STATE and 3 others----Respondents

Criminal Miscellaneous Application No.S-9 and M.A. 131 of 2006, decided on 31st March, 2009.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.420, 406, 489-F & 34---Cheating, criminal breach of trust and dishonestly issuing a cheque---Disposal of case in C class'---Application challenging order of Judicial Magistrate---Applicants in their application had challenged the order passed by the Judicial Magistrate whereby the report submitted by the Investigating Officer for its disposal inC class' had not been accepted thereby directing Investigating Officer to submit the challan in the Court---Contention of counsel for the applicants was that from the face of F.I.R. no offence against the applicants had been made out; and that in fact the dispute was between the complainant. and one other person and the applicants had nothing to do with the same-Validity--Some dispute existed between the parties over certain payments between the complainant and said other person and some exchange of cheque was made by said other person to the complainant, which subsequently was dishonoured---Because of said dispute, on the day of incident, while the complainant was returning from the Mosque, the applicants along with said other person extended threats of dire consequences in case, he demanded money from them---Said occurrence was witnessed by the prosecution witnesses---Statements of prosecution witnesses as well as the statement of complainant fully supported and corroborated - the contents of F.I.R.; and when the report under `C class' was submitted before the. Magistrate, he was not satisfied for the reason that the evidence collected by the Investigating Officer for the prosecution of the applicants was not taken into consideration by the Investigating Officer while submitting his report---Magistrate, in such state of affairs was not duty bound to accept the report submitted by the Investigating Officer, which was not borne out from the record or from the statements of the witnesses---Order passed by the Magistrate, in circumstances, could not be said to be illegal or arbitrary---Material available on record required judicial enquiry by the Magistrate and that could only be done when the challan was submitted before the Court and evidence of at least complainant and eye-witnesses was recorded.

Ghulam Sarwar Korai for Applicants.

Zulfiqar Ali Naich for Respondent No.2.

Ali Haider, State Counsel.

PCrLJ 2010 KARACHI HIGH COURT SINDH 122 #

2010 P Cr. L J 122

[Karachi]

Before Ali Sain Dino Metlo and Dr. Rana Muhammad Shamim, JJ

MUHAMMAD YOUSUF and 5 others----Applicants

Versus

THE STATE and another----Respondents

Criminal Miscellaneous (ATA) No.125 of 2008, heard on 15th August, 2009.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.365-A/34/109---Anti-Terrorism Act (XXVII of 1997), Ss. 7, 13 & 21-D---Quashing of proceedings---Six applicants who were facftg charge of abduction for ransom, had sought quashing of proceedings pending. against them before the Anti-Terrorism Court, mainly on the ground that they had been falsely implicated due to their friendship with one of absconding accused, with whom alleged abductee/complainant had allegedly some civil dispute---Other ground pressed for quashing of the case was that the offence was not triable by the Anti-Terrorism Court---Anti-Terrorism Court, vide its order, refused to acquit applicants holding that offence was triable by it and neither the case could be transferred nor they could be acquitted on the basis of their defence plea without recording evidence---View taken by the Anti-Terrorism Court was unexceptionable---According to S.13 of Anti-Terrorism Act, 1997, the Scheduled offences were triable by Anti-Terrorism Court---In presence of such clear and exclusionary provision of the Statute, there was no room for the argument that the offence of abduction for ransom was not triable by the Anti-Terrorism Court---Contention of the applicants that they had been falsely implicated due to their friendship with absconding accused, with whom the complainant had allegedly some civil dispute, also could not be accepted; and prosecution case could not be disbelieved without recording evidence---Trial Court had rightly held that defence plea of applicants regarding their false implication could not be accepted without recording evidence---Application was dismissed.

S.M. Iqbal for Applicants.

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

Saleem Akhtar, Addl. P.-G.

Date of hearing: 15th August, 2008.

PCrLJ 2010 KARACHI HIGH COURT SINDH 126 #

2010 P Cr. L J 126

[Karachi]

Before Arshad Noor Khan, J

THE STATE through Assistant Advocate-General, Sindh/Ex-Officio Public Prosecutor, Sukkur----Appellant

Versus

KHALID AHMED----Respondent

Criminal Appeal No.23 of 2007, decided on 16th April, 2009.

Criminal Procedure Code (V of 1898)---

----S. 417---West Pakistan Arms Ordinance (XX of 1965), S.13(e)---Appeal against acquittal---Mashirnama of recovery showed that the pistol allegedly was recovered at the instance of respondent/accused near from the date trees---Such fact had not been supported by prosecution witness who deposed about the recovery of alleged pistol under the roots of date trees by digging the earth---Mashirnama of recovery revealed that the alleged pistol was recovered from accused front open plot; and Investigating Officer in his cross-examination had also admitted that the said pistol was recovered from the corridor of the house of the, respondent, when Police entered in his house without knocking the door---Such contradictions in the recovery of the pistol, were of much significance and Magistrate had rightly took notice of the same while appraising the evidence and no discrepancy appeared in appraisal of evidence by him---Main discrepancy in the recovery of the crime weapon, could not be treated as minor or trivial discrepancy so as to ignore that---State Counsel had contended that the acquittal of respondent would reflect on the main murder case, which was pending adjudication before the Trial Court---Contention had no force for the reason that evidence in the murder case would be recorded independently by the Trial Court; and the Trial Court could form independent view about the recovery of the crime weapon on the basis of the evidence brought on record of that murder case---Trial Court trying the murder case, was not bound by the observation made by the Magistrate in the case regarding the recovery of crime weapon---Appeal was dismissed.

Ali Haider Ada Dareshani, State Counsel for Appellant.

PCrLJ 2010 KARACHI HIGH COURT SINDH 135 #

2010 P Cr. L J 135

[Karachi]

Before Shahid Anwar Bajwa, J

Mst. SHAMEEM AKHTAR----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.1051 of 2009, decided on 26th October, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.376(2), 496-A & 511---Rape and enticement---Bail, grant of---Delay of 16 days in lodging F.I.R.---Husband of abductee (complainant) had explained such delay by stating that he first tried to locate his wife here and there and when failed to do so, then he as a last resort lodged F.I.R.---Abductee had not been recovered till time of lodging of F.I.R., thus, complainant could not have known as to what was alleged role of accused in process of her abduction---Abductee in her statement under S.164, Cr.P.C. had implicated applicant as an accomplice with intention to force her to business of prostitution---Offence charged against accused being punishable with life imprisonment fell within prohibitory clause of S.497, Cr. P. C. ---Material collected by prosecution prima facie connected accused with alleged offence---Challan had been presented in Trial Court---Bail was declined to accused in circumstances.

Muhammad Yasin v. The State 1999 PCr.LJ 1295; Mooso v. The State 1996 PCr.LJ 361; Amir Hayat v. The State 1999 PCr.LJ 1529; Amir v. The State PLD 1972 SC 277; Abdul Karim alias Karoo and another v. The State 2009 PCr.LJ 582 and Manzoor, and 4 others v. The State PLD 1972 SC 81 ref.

Naeem Akhtar Khan Tanoli for Appellant.

Ms. Rahat Ahsan, D.P.-G. for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 147 #

2010 P Cr. L J 147

[Karachi]

Before Shahid Anwar Bajwa, J

MUHAMMAD AYOOB----Applicant

Versus

Dr. IMTIAZ HASHMI----Respondent

Criminal Revision Application No.149 of 2009, decided on 30th October, 2009.

(a) Medical Jurisprudence---

----Term "Tachycardia condition "---Meaning---Such condition means that heart beat is faster than normal.

(b) Medical Jurisprudence---

----Term "Hypotension" means low blood pressure.

----Post-mortem examination, absence of---Effect---Not possible to ascertain exact cause of death.

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

----Art. 2(c)---Surmises and conjectures---Evidentiary value.

One can only surmise and conjecture, but surmises and conjectures are no substitute for hard piercing evidence.

Zafar Iqbal Warraich for Applicant.

Saleem Akhtar, Addl. P.-G.

Date of hearing: 16th October, 2009.

PCrLJ 2010 KARACHI HIGH COURT SINDH 164 #

2010 P Cr. L J 164

[Karachi]

Before Gulzar Ahmed and Irfan Saadat Khan, JJ

JANTAN BIBI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.225 of 2009, decided on 29th October, 2009.

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

----S. 412---Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(b)---Appeal against conviction recorded by Special Tribunal on admission of guilt by accused---Maintainability---Provisions of S.412, Cr. P. C. had not placed an absolute embargo on filing of such appeal--Impugned judgment had been passed by a Special Tribunal created under a special statute, but not by a High Court, Court of Session or Magistrate of First Class---Such appeal was maintainable.

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

---Ss. 6 & 9(b)---Criminal Procedure Code (V of 1898), S.412---Appreciation of evidence---89 capsules containing heroin powder weighing 145 grams gross and 134 grains net recovered from stomach of accused---Conviction of accused and awarding of sentence of one year's rigorous imprisonment---Appeal by mother of accused seeking reduction of such sentence or his release on parole---Validity---Trial Court had already taken a very lenient view by awarding accused such lesser sentence---Accused was involved in most heinous crime of trafficking of heroin powder, which could be treated as crime against humanity---Accused did not deserve to be released on parole---Accused had immediately accepted his guilt and such was his first offence---Accused must suffer some retribution from his such act---High Court dismissed appeal in circumstances.

Appellant in person.

Malik Muhammad Aquil Awan Amicus Curiae.

Muhammad Ali Waris Lari, Spl. P.P., A.N.F. for Respondent.

Date of hearing: 29th October, 2009.

PCrLJ 2010 KARACHI HIGH COURT SINDH 178 #

2010 P Cr. LJ 178

[Karachi]

Before Aqeel Ahmed Abbasi, J

DANISH GABOL----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.1067 of 2009, decided on 12th October, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.489-B & 489-C---Using as genuine and possession of forged or counterfeit currency notes or bank notes---Bail, grant of---Further inquiry---Forged currency had been shown recovered from accused, but the F.I.R. was silent as to who had actually delivered forged currency to the complainant---Ingredients of S.489-B, P.P.C. appeared to be missing and application of said section in the case was doubtful and required further inquiry into the matter---Section 489-C, P.P.C. was bailable offence and did not fall within the prohibitory clause of S.497 Cr. P. C. ---Bail was granted to accused in circumstances.

2003 PCr.LJ 964; 1980 SCMR 708; 1985 PCr.LJ 1546; 1984 MLD 1411 and 1984 PCr.LJ 436 ref.

Nazir Hussain Sajan Allana for Applicant.

Shahzado Saleem, A.P.-G. for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 198 #

2010 P Cr. LJ 198

[Karachi]

Before Maqbool Ahmed Awan, J

MUHAMMAD ASLAM---Appellant

Versus

THE STATE----Respondent

Criminal Appeals Nos.250 and 259 of 2006, decided on 5th June, 2009.

Penal Code (XLV of 1860)---

----S. 489-C---Appreciation of evidence---Police Officers despite having spy information had failed to associate independent persons of the locality with search proceedings violating mandatory provisions of S.103, Cr.P.C.---Prosecution had not proved on record that the accused had been arrested with forged currency notes and that they had the knowledge of the currency being forged---Basic requirement of S.489-C, P.P.C., thus, was not fulfilled by prosecution---Mere possession of forged currency notes was no offence, knowledge that the same were forged as well as the intention to use them, were necessary to bring home charge against the accused---Trial Court had not applied its judicial mind in arriving at the conclusion--Impugned judgment was based on mere surmises and not on the evidence brought on record---Accused were acquitted in circumstances.

Muhammad Ashraf Kazi for Appellants.

Abdul Majeed, State Counsel for the State.

Date of hearing: 5th June, 2009.

PCrLJ 2010 KARACHI HIGH COURT SINDH 211 #

2010 P Cr. LJ211

[Karachi]

Before Maqbool Ahmed Awan, J

SAJID ALI SHAH----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.130 of 2007, decided on 9th June, 2009.

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

----S. 302(b)---Qatl-i-Amd---Appreciation of evidence---Prosecution had withheld the evidence of material witnesses---Prosecution witnesses had made improvements in their evidence in order to implicate the accused in the case---Investigating Officer had not explained the delay in examining the witnesses under S.161, Cr.P.C.---Prosecution evidence was not trustworthy and did not inspire confidence---Trial Court had failed to assess, discuss the evidence properly and to give reasons in its judgment---Accused was acquitted in circumstances.

Akhtar Ali and others v. The State 2008 SCMR 6; Muhammad Khan and another v. The State 1999 SCMR 1220; Manzoor Hussain v. Nadeem Bila and 3 others 2003 SCMR 459; Iftikhar Hussain and others v. The State 2004 SCMR 1185; PLD 1994 SC 879 and Hadi Bakhsh's case PLD 1963 Kar. 805 ref.

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

----S. 302(b)---Qatl-i-Amd---Appreciation of evidence---Improvements made by witness---Effect---Deliberate and dishonest improvements made by a witness cast serious doubt on his veracity.

Muhammad Qasim Mirjat for Appellant.

Abdul Majeed, State Counsel.

Date of hearing: 9th June, 2009.

PCrLJ 2010 KARACHI HIGH COURT SINDH 229 #

2010 P Cr. L J 229

[Karachi]

Before Khadim Hussain M. Shaikh, J

Mst. DARYA KHATOON----Applicant

Versus

LOHAR PANHWAR and 14 others----Respondents

Criminal Miscellaneous Application No.67 of 2009, decided on 4th May, 2009.

Criminal Procedure Code (V of 1898)---

----S. 491-Habeas corpus petition---Alleged detenue being seriously wounded due to firearm injuries, allegedly caused to her by her brother by pistol fire was hospitalized---Contention of petitioner was that alleged detenue after discharge from the hospital on the very next day contracted marriage with a person with her own free-will---Said statement of alleged detenue was recorded in presence of her father and mother---Alleged detenue in her statement that after marriage she was living with her husband happily; that she wanted to go with her husband who was present in the Court and that she could be provided protection as she had danger to her life at the hands of her brother and his accomplices---Police Officers present in the court were directed by High Court to provide full protection to alleged detenue and to transport her to the place of her choice safely.

Roshan Ali and Mubashir Ali Solangi for Applicant.

Naimatullah Bhurgri, State Counsel along with S.I.P. Imtiaz Ali Shaikh, S.H.O., Police Station Line Larkana, S.I.P. Khan Muhammad Hisbam at present Police Line Larkana.

Ghulam Nabi alias Lohar, Mst. Bakhtawar and Nazir Hussain Shar are present in person.

PCrLJ 2010 KARACHI HIGH COURT SINDH 253 #

2010 P Cr. L J 253

[Karachi]

Before Khalid Ali Z. Qazi, J

SAINDAD and 3 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.62 of 2007, heard on 9th July, 2009.

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

----S. 34---Common intention---In invoking the provisions of S.34, P.P. C., furtherance of a common intention was a condition precedent for convicting each of the persons who took part in the commission of a crime---Mere fact that several persons took part in a crime, in the absence of a common intention was not sufficient to convict them of that crime---Was not sufficient for joint responsibility for an offence under S.34, P.P.C. that offence actually committed was likely to occur as a result of the several persons acting together, but that the existence of common intention being the sole test of joint responsibility, it must be proved what the common intention was; and that the common act for which accused were to be made responsible was acted upon in furtherance of that common intention---Presumption of constructive intention must not be readily applied or pushed too far---Pre-concert in the sense of a distinct previous plan, was not necessary to be proved and that common intention to bring about a particular result could well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation.

Mst. Zohra Bibi and another v. The State 2005 YLR 1490; Muhammad Zaroof v. The State 2001 MLD 1339; State v. Waheed Iqbal 2005 PCr.LJ 1348; State v. Azizullah 2004 PCr.LJ 1710; Muhammad Rafique v. The State 1989 PCr.LJ 43 and Pervez v. Khan Bahadur 1982 SCMR 337 ref.

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

----Ss. 302(b), 337-A(i)(ii), 337-F(v)/34---Qatl-i-Amd, Shajja and Hashima---Appreciation of evidence---No reason was available to come to the conclusion that all accused persons shared the common intention to commit murder of deceased--Apart from want of any strong motive to justify such an intention, there was a more significant fact which clearly negated the sharing of a common intention by all accused persons to kill deceased---Both prosecution witnesses/eye-witnesses had consistently deposed that accused, who was armed with a gun made fire in the air and none received any injury from the fire---Same was the allegation against other accused persons, who were armed with hatchet and Lathi and they gave blows to prosecution witness---All said three accused persons had taken meticulous care to use their weapons on the each occasion which would certainly detract from the intention to-kill or the sharing on their part of such an intention---No common intention existed among the assailants to kill deceased for which one accused alone could be held responsible who directly fired from his gun at deceased; but that would not mean that other three accused person did not at all share a common intention with co-accused who were not only armed with deadly weapons; but who actually used those in the fight with serious consequences---Common intention was not only confined to causing injuries, but something beyond that---Accused having directly fired from his gun at deceased, he was held guilty under S.302(b), P.P.C. and sentence of life imprisonment already awarded to him was maintained---Conviction and sentence of other three accused persons under S.302/34, P.P.C. was not justified and same was set aside---Conviction and sentence of said three accused under Ss.337-A (i)(ii), 337-F(v) & 34, P.P.C., however, was maintained.

Abdul Rasheed Shah for Appellants.

Naimatullah Bhurgri, State Counsel.

Date of hearing: 9th July, 2009.

PCrLJ 2010 KARACHI HIGH COURT SINDH 264 #

2010 P Cr. L J 264

[Karachi]

Before Khalid Ali Z. Qazi, J

GUL MUHAMMAD----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.331 and M.A. No.1039 of 2009, decided on 23rd July, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 148 & 149---Attempt to commit Qatl-i-amd---Bail, grant of---Earlier the Trial Court was directed to record the evidence of material witnesses of the prosecution, within three months, but no progress had been made in the trial despite said direction of the High Court---Medical report of accused was available on the record, wherein the members of Special Medical Board were of unanimous opinion that accused was a case of Hepatitis-B carrier---Accused appeared to have no intention to kill the victim as he had not repeated the fire and only one fire shot was attributed to him---Accused being a case of Hepatitis-B carrier was languishing in jail since 7-7-2008 which could also be a hazard for other inmates of the prison---No useful purpose could be served by keeping accused in custody in the peculiar circumstances of the case---Accused was admitted to bail, in circumstances.

Muhammad Umar v. The State PLD 2004 SC 477 ref.

Ghulam Mandi Sangi for Applicant.

Nisar Ahmed G. Abro, State Counsel.

PCrLJ 2010 KARACHI HIGH COURT SINDH 272 #

2010 P Cr. L J 272

[Karachi]

Before M. Iqbal Mahar, J

ARZ MUHAMMAD----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.768 of 2009, decided on 23rd July, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotics---Bail, refusal of---Accused and his co-accused were arrested at the spot at day time and a huge quantity of Charas i.e. 200 Kgs. had been recovered from the Suzuki Pick-up which was in their possession at the time of recovery---Due to fear of enmity people do hesitate to be the witness in cases of such nature, that was why no private witness was associated at the time of recovery---Counsel for accused had failed to prove mala fide of the Excise Police---Witnesses had fully supported the version of complainant---200 Kgs. of Charas had been recovered which could not be foisted upon a person---Driver of the Pick-up had also implicated accused---Punishment provided for the offence fell under the prohibitory clause of S.497, Cr.P.C. and embargo contained in subsection (1) of S.51 of Control of Narcotic Substances Act, 1997, was fully attracted' to the case, as such offence was against the society at large---Bail was refused in circumstances.

Zahir Shah v. The State 2009 MLD 467; Ashfaq Ahmed v. The State PLD 2008 Pesh. 59; Shamsur Rehman alias Shamsay v. The State 2008 PCr.LJ 354 Muhammad Faisal v. The State 2006 YLR 3039; 2002 PCr.LJ 971; 2000 PCr.LJ 1870; 2000 PCr.LJ 4 and 2007 SCMR 830 rel.

Habib Ahmed for the Applicant.

Ms. Rahat Ahsan, D.P.-G. for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 277 #

2010 P Cr. L J 277

[Karachi]

Before Muhammad Iqbal Mahar, J

JAN MUHAMMAD alias JANO----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-333 of 2009, decided on 15th June, 2009.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.302, 324, 337-A(i), 337-H(ii), 504, 114, 147, 148 & 149---Qatl-i-amd, attempt to commit Qatl-i-amd and Shajjah---Pre-arrest bail, refusal of---Incident being a day time occurrence and parties being known to each other, there was no question of mistaken identity---F.I.R. was lodged without any delay---One person had lost his life and four persons sustained injuries at the hands of accused persons---Fatal role was assigned to accused that he gave hatchet blow on the head of deceased, which resulted in his death---Version of F.I.R. was fully, supported by injured prosecution witnesses as well as by medical evidence---Postmortem note had shown that deceased had sustained single incised injury on head, which according to medical officer was sufficient for death of deceased---Accused was shown as absconder in the charge sheet---Counter case was registered on the next day of incident and in that case place of incident was shown different, which ground was not helpful to accused---Offence was heinous one and was punishable with death or imprisonment for life---Application of accused being for his pre-arrest bail, he had to show mala fide on the part of prosecution but it had failed to do so---Prima facie counsel for accused had failed to make out a case for pre-arrest bail---Application was dismissed, in circumstances.

Ch. Aftab Ahmed Warriach for Applicant.

Allah Bachayo Soomro, Addl.' A.-G. for the State.

Abdul Aziz Memon, for the Complainant.

PCrLJ 2010 KARACHI HIGH COURT SINDH 280 #

2010 P Cr. L J 280

[Karachi]

Before Khalid Ali Z. Qazi, J

GADAL----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-648 of 2008, decided on 17th July, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/114---Qatl-i-amd and attempt to commit Qatl-i-amd---Bait, grant of---State Counsel had conceded the grant of bail and raised no objection---According to F.I.R. accused instigated co-accused and on his instigation co-accused had committed murder of deceased---Was, yet to be ascertained whether accused had shared his common intention and whether S.34, P.P.C. was attracted in circumstances of the case---Counsel for accused having succeeded in making out a case for grant of bail, he was admitted to bail, in circumstances.

Moula Bux v. The State 2005 YLR 190 and Mukhtar v. The State 2008 YLR 1753 ref.

Ali Ahmed Khan Pathan for the Applicant.

Nisar Ahmed G. Abro, State Counsel.

PCrLJ 2010 KARACHI HIGH COURT SINDH 286 #

2010 P Cr. L J 286

[Karachi]

Before Shahid Anwar Bajwa, J

MUSTAQEEM----Appellant

Versus

THE STATE and another----Respondents

Criminal Appeal No.184 of 2009, decided on 7th December, 2009.

Illegal Dispossession Act (XI of 2005)---

----S. 3---Appreciation of evidence---Complainant admittedly was not the eye-witness of the incident of dispossession from her house by the accused, and she had been apprised about the same by her sister--Accused in his statement under S.342, Cr.P.C. had claimed to have purchased the house through a sale agreement and stated that since the price of property had shot up, complainant in greed to get more price had filed a false case---General Secretary of the Association of the residents of the locality as well as a next door neighbour while deposing on behalf of accused had stated that the complainant had taken away all her household articles in a truck and the accused on the same day had shifted to the Flat in dispute---Complainant had admitted the said sale agreement in the proceedings going on in Civil Court and the validity of the same and of other documents produced therein, would be decided by Civil Court---Sister of the complainant allegedly being present in the flat had not stated any word about dispossession in her statement---Accused was acquitted in circumstances.

Khawaja Naveed Ahmed for Appellant.

Shahzad alias Saleem Nahyoon, A.P.-G. for the State.

Ahmed Ali Ghumro for Respondents.

Date of hearing: 24th November, 2009.

PCrLJ 2010 KARACHI HIGH COURT SINDH 292 #

2010 P Cr. LJ 292

[Karachi]

Before Khalid Ali Z. Qazi, J

MUHAMMAD AJMAL KHAN----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-299 of 2009, decided on 13th July, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 8, 9(c) & 25---Possession of narcotic---Bail, refusal of---All the prosecution witnesses had clearly stated during the investigation that accused was cleaner of the vehicle in which contraband narcotic was transported---Question as to associating the Police witnesses and non-associating the private witnesses, section 25 of Control of Narcotic Substances Act, 1997, had imposed bar that S.103, Cr.P.C. was not applicable in narcotic cases---Record had connected accused with the commission of the alleged offence---Counsel of accused having failed to make out a case for grant of bail, his bail application was dismissed.

Jamshaid Ali v. The State 1990 PCr.LJ 1175; Daniel Boyd v. The State 1992 SCMR 196; State v. Qaim Ali Shah 1992 SCMR 2192; Ghani-ur-Rehman v. The State 1996 PCr.LJ 347; Minhaj v. The State 2004 PCr.LJ 1992; Noor Muhammad v. The State 2007 YLR 1973; Syed Afzal Ali v. The State 2009 MLD 674; Muhammad Saleem Khan v. The State 2009 MLD 1059; Muhammad Hanif v. The State 2003 SCMR 1237 and Afzal Ahmed v. The State 2003 SCMR 573 ref.

Ashique Illahi Sundrani for Applicant.

Naimatullah Bhurgri, State Counsel.

PCrLJ 2010 KARACHI HIGH COURT SINDH 298 #

2010 P Cr. LJ 298

[Karachi]

Before Aqeel Ahmad Abbasi, J

SAEED KHAN----Applicant

Versus

THE STATE----Respondent

Criminal Bail- Application No.805 of 2009, heard on 23rd November, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.448/386---Sindh Public Property (Removal of Encroachment) (Amendment) Act, 2008 (I of 2009), S.7(i)--- House trespass and extortion by putting in fear of death or grievous hurt---Bail, grant of---Offences did not fall within the prohibitory clause of S.497(1), Cr.P.C.-F.I.R. was lodged after a delay of about one year---No date or time of occurrence was mentioned in the F.I.R.---No independent eye-witness of the incident was even cited therein---Accused was in possession of the plot in dispute for more than one year---Allegations made in the F.I.R. did not apparently attract the provisions of S.386, P.P.C.---No allegation of giving threats to complainant or putting him in fear of death or of grievous hurt for extorting money from him had been made---Case against accused was one of further inquiry---Accused was admitted to bail in circumstances.

Mst. Daulan v. Sardara and 5 others 1995 SCMR 177; Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Anjum Sheraz v. The State 1999 MLD 844; Noor Muhammad and another v. Muhammad Tufail 2004 YLR 3330; Nooruddin and another v. The State 2005 MLD 1267 and Muhammad Nadeem v. The State 2007 MLD 926 ref.

Nasir Ahmed for Applicant.

Muhammad Iqbal Awan, A.P.-G. along with Investigating Officer, Abdul Razzak for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 301 #

2010 P Cr. L J 301

[Karachi]

Before Khadim Hussain M. Shaikh, J

SAFDAR ALI and another----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.S-28 of 2009, decided on' 27th March, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 337-H(ii), 114 & 34---Qatl-i-amd and Shajjah---Bail, refusal of---Names of both accused persons appeared in the F.I.R. and they were assigned specific role of causing firearm injuries to the deceased---Medical evidence was available in line with the ocular evidence---Eye-witnesses had implicated accused persons---Crime weapons namely, two pistols with loaded magazines were recovered from the possession of accused persons---Three empties of .30-bore pistol were also secured from the place of incident---Prima facie sufficient incriminating evidence was against accused persons to connect them with the crime of murder---Accused persons having failed to make out their case for grant of bail, their bail application was dismissed.

Sooban v. The State 2003 YLR 2029 and Shahnawaz and others v. The State 2008 SCMR 1436 rel.

Habibullah-G. Ghauri for Applicants.

Muhammad Akram Shaikh, State Counsel.

PCrLJ 2010 KARACHI HIGH COURT SINDH 307 #

2010 PCr. LJ 307

[Karachi]

Before Muhammad Iqbal Mahar, J

ZAINUL ABDIN----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.353 of 2009, decided on 17th June, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860, Ss.302, 324, 337-A(v) & 34---Qatl-i-amd, attempt to commit Qatl-i-amd and Shajjah-i-ammah---Bail, grant of---Name of accused did not appear in F.I.R. nor in statements of prosecution witnesses under S.161, Cr.P.C.---Case against accused was identical to that of co-accused who had already been granted bail by the Trial Court---Reason for refusing bail to accused by the Trial Court was that he remained fugitive from law--Facts on record had shown that abscondance of accused was not deliberate---Even otherwise, bail could not be refused to an accused merely for his abscondance, if he was entitled to same on merits---Accused was allowed bail, in circumstances.

2000 PCr.LJ 1058; 1995 PCr.LJ 1316 and 2009 SCMR 299 ref.

Muhammad Azeem Panhwar for Applicant.

Anwar H. Ansari, State Counsel.

PCrLJ 2010 KARACHI HIGH COURT SINDH 310 #

2010 P Cr. L J 310

[Karachi]

Before Shahid Anwar Bajwa, J

Haji MUHAMMAD ALI KHAN and 3 others----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.1159 of 2009, decided on 11th December, 2009.

Criminal Procedure Code (V of 1898)---

----S. 498---Bail before arrest---Principles and guidelines summarized---Grant of bail before arrest is an extraordinary relief to be granted only in extraordinary situations to protect innocent. persons against victimization through abuse of law for ulterior motives; pre-arrest bail is not to be used as a substitute or as an alternative for post arrest bail; bail before arrest cannot be granted unless the person seeking it satisfies the conditions specified through subsection (2) of S.497, Cr.P.C. i.e., unless he establishes the existence bf reasonable grounds leading to a belief that he was not guilty of the offence alleged against him and that there were in fact, sufficient grounds warranting further inquiry into his guilt; not just this, but in addition thereto, he must also show that his arrest was being sought for ulterior motive, particularly on the part of the police to cause irreparable humiliation to him and to disgrace and dishonour him; such a petitioner should further establish that he had not done or suffered any act which would disentitle him to a discretionary relief in equity i.e., he had no past criminal record or that he had not been a fugitive at law; and finally in the absence of a reasonable and a justifiable cause, he must in the first instance approach the Court of first instance, i.e. the Court of Session, before petitioning the High Court for the purpose.

Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427 ref.

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

----S. 498---Bail before arrest---Surrender of accused compulsory---Privilege of pre-arrest bail can only be availed of by a person who surrenders before the Court.

1999 MLD 1922 ref.

----S. 498---Bail before arrest---Forum for filing the petition--Jurisdiction of High Court and Court of Session to grant bail is concurrent---No hard and fast rule can be laid down mandating in each and every case that a person must be compelled to go to the Trial Court and file pre-arrest bail application there instead of directly coming to High Court---High Court in appropriate cases can grant interim bail and can even confirm such bail to a person who has not gone to Trial Court for obtaining bail before arrest---In compelling and exceptional circumstances and reasonable and plausible explanation, High Court should not hesitate to succour the petitioner before it.

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

----S. 498---Penal Code (XLV of 1860), Ss.302/147/148/149/427---Qatl-i-amd---Pre-arrest bail---Grant of protective bail with direction to accused to approach the Trial Court first---Justification advanced by accused for filing pre-arrest bail application before High Court was that when they went to Sessions Court for the purpose they found the Court premises surrounded by the opposite party, who were armed with deadly weapons---However, it was strange that the accused who were going to Sessions Court for trial, did not have any such apprehension at the hands of the opposite party---Thus, it was not a case where the accused could not approach the Trial Court for pre-arrest bail---Protective bail was granted to accused till a specified date for moving pre-arrest bail application before Trial Court in circumstances.

Jam Sadiq Ali v. The State 1989 PCr.LJ 1910; Manzoor v. The State 1992 PCr.LJ 561; Inamullah v. The State 1990 PCr.LJ 529; Muhammad Rafi v. The State 1992 PCr.LJ 2399; Janib Chandio v. The State 1997 MLD 161; PLD 1983 SC 82; Raza Muhammad Sial v. The State 1988 SCMR 1223; Ajmal Khan v. Liaqat Hayat and another PLD 1998 SC 97; Syed Muhammad Firdaus and others v. The State 2005 SCMR 784; Rais Wazir Ahmad v. The State 2004 SCMR 1167; The State v. Malik Mukhtar Ahmad Awan 1991 SCMR 322; Jan Muhammad v. The State 2000 MLD 1046; Allah Bachayo and another v. The State 2009 PCr.LJ 503; Rehmatullah and another v. The,State PLD 2008 Kar. 170; Mumtaz v. The State 2002 PCr.LJ 568; Manzoor Hussain v. The State PLD 2008 Kar. 157; Riaz Ali v. The State 2008 SCMR 884; Mamaras v. The State and others PLD 2009 SC 385; Mazhar Hussain v. The State 2009 MLD 747; Raja Muhammad Irshad v. Muhammad Bashir Goraya and others 2006 SCMR 1292; Malik Noor Ahmad v. The State PLD 1993 Lah. 500; Sh. Zahoor Ahmad v. The State PLD 1974 Lah. 256; Rafiq Ahmad Jilani v. The State 1995 PCr.LJ 785; Agha Muhammad Jamil v. The State 1997 PCr.LJ 901; Shamrez Khan v. The State 1999 PCr.LJ 74; Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427 Hidayat Ullah Khan's case PLD 1949 Lah. 21=AIR 1949 Lah. 77 and 1999 MLD 1922 ref.

Ilyas Khan for Applicants.

Salahuddin Panhwar for the Complainant.

Ms. Rahat Ehsan, D.P.-G. for Respondent.

PCrLJ 2010 KARACHI HIGH COURT SINDH 321 #

2010 P Cr. L J 321

[Karachi]

Before Khadim Hussain M. Shaikh, J

GUL HASSAN and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.S-65 of 2007, decided on 26th May, 2009.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Appreciation of evidence---Principles---Prosecution was duty bound to establish charge against accused beyond shadow of doubt; evidence produced in support of the charge must be confidence inspiring; there should not be any inconsistency between the direct and circumstantial evidence of the case; and the prosecution version should not admit of any other hypothesis favourable to accused.

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

----S. 302(b)/34---Appreciation of evidence---Complainant made a dishonest and vain attempt to make improvements during evidence by stating in his examination-in-chief that when they rushed to the place of incident, they saw two persons armed with rifles running away, though it was nowhere mentioned in the F.I.R.---All the other prosecution witnesses stated in their statements that when they reached the place of incident they had not seen any culprit running away from the place of incident---Complainant and all other prosecution witnesses reached at the place of Vardat after the incident and nobody among them was eye-witness of the occurrence---So many shops were open and so many private persons were available at the time of incident, but no independent person was taken from the public to become witness and/or even as Mashir in the case---Apart from that there were also other noticeable contradictions and improvements made during the trial--Complainant had further stated that he had prepared the inquest report with his own hand; and that he had lodged the F.I.R. after preparation of inquest report---Death of the deceased having occurred instantaneously, he could not be in a position to give dying declaration---Version of the prosecution that they found deceased in injured condition and he disclosed his name with parentage and then disclosed names of accused with parentage, addresses, descriptions of the weapons allegedly carried by them with roles assigned to them and so also the motive, was untenable which created doubts in the prosecution case---Prosecution, in circumstances, had failed to prove the charge against accused persons beyond any shadow of doubt--Impugned judgment passed by the Trial Court was set aside and accused were acquitted and were directed to be released forthwith.

Muhammad Aslam v. The Crown 1969 SCMR 426 ref.

Asif Ali Abdul Razak Soomro for Appellants:

Naimatullah Bhurgri, State Counsel.

Date of hearing: 26th May, 2009.

2010 PCr. L J 344

[Karachi]

Before Maqbool Ahmed Awan, J

KASHIF ABRO---Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.224 of 2007, decided on 8th June, 2009.

Penal Code (XLV of 1860)---

----Ss. 302 & 392---Appreciation of evidence---Nobody had implicated the accused in the case---Mashirs of recovery even in their evidence had not involved the accused---Evidence of complainant was hearsay evidence and the person who had informed the complainant about the murder on telephone was not examined by the prosecution to corroborate the version of the complainant---Investigating Officer before whom the accused had confessed his guilt, had not produced the accused before any Magistrate for recording his statement under S.164, Cr.P.C.---Statement made by accused before police was inadmissible in. evidence---Accused was acquitted in circumstances.

Muhammad Akram v. The State 2009 SCMR 230 and Abdul Qadir Motiwala v. The State 2000 PCr.LJ 1734 ref.

Jamal Ahmed Mufti along with Fatima Jameela Jatoi for Appellant.

Ms. Farkhunda Mangi, State Counsel.

Date of hearing: 8th June, 2009.

PCrLJ 2010 KARACHI HIGH COURT SINDH 351 #

2010 P Cr. L J 351

[Karachi]

Before Maqbool Ahmed Awan, J

MUHAMMAD GHUFRAN and 6 others----Applicants

Versus

THE STATE----Respondent

Criminal Miscellaneous Application No.67 of 2009, decided on 30th June, 2009.

(a) Criminal trial---

----Civil and criminal proceedings---Concurrent running of---Pendency of civil proceedings relating to same transaction is not a legal bar to the maintainability of criminal proceedings---Both proceedings can proceed concurrently, because conviction for a criminal offence is completely a different matter from civil liability.

Seema Fareed v. The State 2008 SCMR 839 ref.

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

----S. 561-A---Inherent powers of High Court---Inherent jurisdiction of High Court under S.561-A, Cr. P. C. is not of an alternate or additional character and is to be invoked rarely only in the interest of justice for seeking redress of grievances, in the absence of any other procedure---Section 561-A, Cr.P.C. should not be availed to obstruct or to divert the ordinary course of criminal procedure.

Kh. Fazal Karim's case PLD 1976 SC 461; Ghulam Muhammad v. Muzammal Khan and 4 others PLD 1967 SC 317 and Shahnaz Begum v. Honourable Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677 ref.

----S. 489-F---Criminal Procedure Code (V of 1898), S.561-A---Quashing of F.I.R.---In the wake of business transaction with the complainant, accused carrying on the same type of business, had delivered six cheques -amounting to Rs.82 lac, which had been bounced by the Banks on presentations---Offence under S.489-F, P.P.C. thus, obviously seemed to have been made out---Pendency of civil suit would not bar the proceedings in the Criminal Court---Petition for quashing the proceedings under S.561-A, Cr.P.C. was dismissed in circumstances.

Seema Fareed v. The State 2008 SCMR 839; Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276; A. Habib Ahmed v. M.K.G. Scott Christian PLD 1992 SC 353; Kh. Fazal Karim's case PLD 1976 SC 461; Ghulam Muhammad v. Muzammal Khan and 4 others PLD 1967 SC 317 and Shahnaz Begum v. Honourable Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677 ref.

Kh. Shams-ul-Islam, Advocate Supreme Court for Applicants.

Muhammad Arif for Complainant.

Mrs. Akhtar Rehana, Addl. P.-G. and Haji Abdul Majeed counsel for Advocate-General for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 360 #

2010 P Cr. LJ360

[Karachi]

Before Amir Hani Muslim and Ahmed Ali Shaikh, JJ

FAZAL and 2 others----Appellants

Versus

THE STATE----Respondent

Criminal Jail Appeal No.D-72 of 2005, decided on 17th November, 2009.

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

----S. 9(c)---Possession, import or export and trafficking of narcotic drugs---Appreciation of evidence---Glaring contradiction existed in the deposition of the prosecution witnesses in respect of place of arrest of accused persons, preparation of Mashirnama of arrest and recovery as well as quantity of contraband material which was sent to the Chemical Examiner---Only evidence against one of accused persons was mere statement of co-accused, which was inadmissible piece of evidence--Inconsistent versions of complainant and prosecution witnesses with regard to preparation of Mashirnama of arrest and recovery were on record---No reliance, in circumstances could be placed on very important document i.e. Mashirnama of arrest and recovery as the entire foundation of the prosecution case was based upon such Mashirnama---Mashirnama of arrest and recovery contained the names of Sub-Inspector and Assistant sub-Inspector as Mashirs, no sanctity could be attached to such Mashirnama of arrest and recovery and same could not be relied upon---All the three prosecution witnesses had given different weight and their versions did not match with each other in respect of quantity of contraband material, which was allegedly sealed separately for Chemical Examination---Very preparation of parcels for sending to the Chemical Examiner, therefore, seemed to be an afterthought and did not inspire confidence, same could not be relied upon---Samples remained lying with Police Officer for about 11 days possibility of manipulation in the sample during that period, could not be ruled out---Report of Chemical Examiner could not be relied upon as good piece of evidence against accused persons---Prosecution did not produce/examine the Mashirs of recovery---Mere production of Mashirnama, was not proof of recovery of narcotics---Genuineness or authenticity of the contents of a document needed to be proved by examining the witnesses named in such document, besides its author---Mere exhibition of a document through Investigating Officer, without proving the contents by examining the witnesses and author, had no evidentiary value---Prosecution could not prove recovery of opium and Charas from the custody of accused and the Trial Court failed to notice the major contradictions---Opium and Charas appeared to have not been recovered from the possession of accused, but same was foisted upon them by the complainant---Appeal was allowed in circumstances. ?

Khuwaja Azizullah for Appellants.

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

PCrLJ 2010 KARACHI HIGH COURT SINDH 368 #

2010 P Cr. L J 368

[Karachi]

Before Shahid Anwar Bajwa, J

IMRAN-UL-HAQ----Applicant

Versus

THE STATE----Respondent

Criminal Miscellaneous Application No.269, M.As. Nos.3989 and 4262 of 2009, decided on 28th October, 2009.

Criminal Procedure Code (V of 1898)---

----Ss. 173, 190(a)(c) & 561-A---Penal Code (XLV of 1860), Ss.452/354/506-B---Quashment of proceedings---House trespass, out raging modesty of woman and threat to cause death or grievous hurt---Recording of statements of prosecution witness by first Investigating Officer and taking into custody torn shirt of complainant's wife---Transfer of investigation to second Investigating Officer, who prepared report under S.173, Cr.P.C. and recommended such matter as "B" class---Approval of such matter as "A" class by higher officers and submission of such report to the Magistrate---Order of Magistrate taking cognizance of offence after converting such report into Challan and registering case with direction to Investigating Officer to supply list of witnesses---Application for quashment of such proceedings---Validity---Complainant's wife and servant in their statements recorded by first Investigating Officer had clearly implicated petitioner by supporting what was in F.I.R.---Magistrate was competent to take cognizance of an offence, if upon considering not only report under S.173, Cr.P.C., but also material collected during investigation came to conclusion that a cognizable-offence had been made out---First Investigating Officer had collected material, which was not referred to by second Investigating Officer in his report---Magistrate had scrutinized all such material---High Court dismissed such application and directed police authorities to take departmental action against second Investigating Officer for having ignored statements recorded earlier.

1997 SCMR 299; Hussain Ahmed v. Mst. Irshad Bibi and others 1997 SCMR 1503; Gianchand v. The State 1968 SCMR 380; Hyder Ali Bhimji v. The State 2009 PCr.LJ 989 and Muhammad Salman and 3 others v. The State 2009 PCr.LJ 881 ref.

Ch. Muhammad Ashraf v. The State 2006 PCr.LJ 518 rel.

Raza Hashmi for Applicant.

Muharram G. Baloch and Abdullah Rajput, A.P.-G. for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 376 #

2010 P Cr. LJ 376

[Karachi]

Before Arshad Noor Khan, J

MUHAMMAD UMAR----Appellant

Versus

UMAR and 3 others----Respondents

Criminal Acquittal Appeal No.4 of 2007, decided on 8th May, 2009.

Penal Code (XLV of 1860)---

----S. 435---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal---F.I.R. in the case was lodged after the delay of 15 days for which no plausible explanation was put forward-Such delay was sufficient to hold that old enmity existed between the parties---False implication of the accused, could not be ruled out in circumstances---Complainant in his statement before the Trial Court had stated about the setting on fire the babul trees, but that fact was not mentioned in the F.I.R., which seemed to be exaggerated in the statement of the complainant---All these circumstances had shown that the Trial Court, after appraisal of the whole evidence available on record, had rightly acquitted the accused persons from the charges--Impugned judgment of the Trial Court, did not call for any interference by the High Court in appeal.

Ghulam Sarwar Korai for Appellant.

Liaquat Ali Shar, Addl. A.-G. for the State.

Date of hearing: 8th May, 2009.

PCrLJ 2010 KARACHI HIGH COURT SINDH 381 #

2010 P Cr. L J 381

[Karachi]

Before Arshad Noor Khan and Muhammad Ismail Bhutto, JJ

SARWAR KHAN and another----Appellants

Versus

THE STATE----Respondent

Criminal Jail Appeals Nos.D-50, D-58 and D-59 of 2007, decided on 20th May, 2009.

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

----Ss. 9(c) & 25---Appreciation of evidence---Complainant, who was Excise Inspector, had deposed same fact as contained in the F.I.R.---Complainant deposed about the arrest of accused persons and recovery of Charas weighing 280 Kgs. from the secret cavity of the truck in question---In cross-examination nowhere arrest of the accused persons and recovery of huge quantity of Charas had been questioned or disproved, the testimony of said witness remained unshaken---Other prosecution witness, had also fully deposed on the same pattern as had been deposed by the complainant---No slight difference was available in cross-examination of both said prosecution witnesses; their evidence was in consonance with each other on material aspects of the case regarding arrest of accused persons and recovery of Charas---No material had been fished by the defence side to extend its benefit to accused persons---Section 25 of Control of Narcotic Substances Act, 1997, spoke about the evidence of the Police Officials which could be treated as good as the evidence of any independent witness could be--Evidence of Police Officials could not be discarded merely for the reasons that they were Police Officials---Applicability of S.103, Cr.P.C. had also been ousted from the proceedings of Control of Narcotic Substances Act, 1997---Contention of accused that all the Mashirs being Police Officials their testimony could not be believed, was repelled, in circumstances---If the narcotic substance had been secured in bulk quantity from the possession of accused, it ,was not obligatory on the part of the prosecution to send the whole quantity of narcotics to the Chemical Examiner; and the sample from each huge bulk of narcotic substance could be sent to the Chemical Examiner and positive report of the Chemical Examiner could be treated affirmatively against the whole quantity of Charas---Recovery ,of 280 Kgs. Charas had been established by the prosecution from the possession of both accused persons and said recovery had not been disproved by accused persons by adducing any independent evidence---Trial Court, in circumstances, had rightly convicted and sentenced' accused persons---In absence of any illegality or infirmity in the judgment passed by the Trial Court, appeals against said judgment, were dismissed, in circumstances. ?

Amanat Ali and others v. State 2008 SCMR 991; Muhammad Hashim v. State PLD 2004 SC 856; Zahoor Ahmad Memon v. The State 1997 SCMR 543; Taj Wali v. The State PLD 2005 Kar. 128; 2007 SLJ 1284; Lal Muhammad alias Haji Laloo v. The State PLD 2009 Kar. 212 ' and Nadia Khan v. The State 1998 SCMR 1899 ref.

Ghulam Shabir Dayo and Rashid Khan Durrani for Appellants.

Ali Haider Dareshani, State Counsel.

Date of hearing: 20th May, 2009.

PCrLJ 2010 KARACHI HIGH COURT SINDH 390 #

2010 P Cr. L J 390

[Karachi]

Before Amer Raza Naqvi, J

MUHAMMAD HANEEF----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-335 of 2009, decided on 30th June, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Qatl-i-amd---Bail, grant of---Only allegation against accused in F.I.R. was that he fired in air to cause harassment---No other allegation against accused and police found him innocent during the course of investigation---Accused having made out a case for grant of ball, he was allowed the same, in circumstances.

1996 SCMR 1654 and 2007 SCMR 992 ref.

Syed Madad Ali Shah for Applicant along with Applicant in person.

Bilawal Ali Ghunio, State Counsel.

PCrLJ 2010 KARACHI HIGH COURT SINDH 392 #

2010 P Cr. L J 392

[Karachi]

Before Shahid Anwar Bajwa, J

YOUSUF MASIH----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.1248 and M.As. Nos.4621 and 4623 of 2009, decided on 4th December, 2009.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324/34---Qatl-i-amd and attempt to commit Qatl-i-amd---Bail, grant of---Out of sixteen witnesses only seven witnesses had so far been examined by the prosecution---"Chhuri" recovered after seven days of the arrest of accused had been sent to the Chemical Examiner after a further delay of eight days---No independent witness was associated with recovery proceedings---Accused was not alleged in the F.I.R. to have caused any "Chhuri" blow either to the deceased or any other particular person---No direct role was assigned to accused even in the statement recorded under section 161, Cr.P.C.---Eye-witnesses had tried to improve their statements at the trial---Benefit of each doubt had to be given to the accused even at bail stage---Accused was admitted to bail in circumstances.

Sajid Hussain v. The State 1986 MLD 2831; Muhammad Ali v. The State 2008 PCr.LJ 87; Haq Nawaz v. The State 1988 PCr.LJ 1640; Muhammad Tasneem v. The State 1985 SCMR 160; Nazra v. The State 1980 PCr.LJ 264; Sultan Khan v. The State 1983 PCr.LJ 1513 and Salman Raza Khan v. The State (Criminal Bail Application No.702 of 2009 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324/34---Qatl-i-amd and attempt to commit Qatl-i-amd---Bail---Benefit of doubt, extension of---Principle---Benefit of doubt even at bail stage must be given to accused.

Miss Shaista Khan Kundi for Applicant.

Abdul Rehman Kolachi, A.P.-G.

PCrLJ 2010 KARACHI HIGH COURT SINDH 398 #

2010 P Cr. L J 398

[Karachi]

Before Amer Raza Naqvi, J

RASHEED AHMED----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.74 of 2009, decided on 14th April, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.394---Voluntarily causing hurt in committing robbery---Bail, refusal of---Name of accused, no doubt, was not mentioned in the F.I.R., but he had been correctly picked-up in the identification parade---No enmity was shown between the parties and complainant had no reason to falsely implicate accused in the commission of the offence; that seemed to be a reason that name of accused was not mentioned in the F.I.R., but specific role was assigned to accused who had made direct shot on the injured and that person was subsequently picked-up in the identification parade as the person who fired on the injured---Offence against accused was heinous and his counsel, could not make out a ground for concession of bail---Reasonable grounds were available to believe that accused had committed the offence and in view of the nature of the offences and facts and circumstances, he had failed to make out a case for grant of concession of bail and accordingly his bail application was dismissed.

2005 PCr.LJ 715; 2005 YLR 139; 1998 SCMR 897; 2004 SCMR 1160; 2005 SCMR 756; 2007 SCMR 813 and 2004 YLR 1339 ref.

Nizamuddin Baloch for Applicant.

Arjandas Ladhani for the Complainant.

Agha Athar Hussain Pathan, Asstt. A.-G. for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 411 #

2010 P Cr. L J 411

[Karachi]

Before Muhammad Iqbal Mahar, J

MUNIR BAIG-,--Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.762 of 2009, decided on 24th July, 2009.

Criminal Procedure Code (V of 1898)---

---S. 497---Passports Act (XX of 1974), S.6(1)(a)(c)---Wilfully concealment of fact for obtaining a passport---Bail, grant of---Punishment provided for the offence against accused did not fall within the ambit of prohibitory clause of S.497, Cr.P.C.---Accused had been challaned and was no more required for the purpose of further investigation to Police---Rule in such-like cases was bail and not the jail---Accused was admitted to bail, in circumstances.

PLD 1995 SC 34 ref.

Khawaja M. Azeem for Applicant.

Syed Ahmed Ali Shah, Standing Counsel.

PCrLJ 2010 KARACHI HIGH COURT SINDH 412 #

2010 P Cr. LJ 412

[Karachi]

Before Bhajandas Tejwani, J

SABIR AHMED----Applicant

Versus

NAZEER AHMED and another----Respondents

Criminal Miscellaneous Application No.S-341(Hyd) of 2009, decided on 18th December, 2009.

Penal Code (XLV of 1860)---

----Ss. 489-F & 420---Financial Institutions (Recovery of Finances) Ordinance (XL VI of 2001), Ss.2(a)(c), 20(4) & 7---Criminal Procedure Code (V of 1898), Ss.561-A & 249-A---Dishonestly issuing a cheque and cheating---Quashing of proceedings---Accused being the Chief Executive of the borrower company had availed demand and cash finance against various securities including the mortgage of Unit/Mill of the company and in fulfilment of the obligation and in order to adjust the outstanding liabilities he had issued four post-dated cheques, which were dishonoured---Manager of the Bank then got registered an F.I.R. against the accused applicant under Ss.489-F & 420, P.P.C.---Trial Magistrate and the Sessions Court had refused to acquit the accused under S.249-A, Cr.P.C. vide impugned orders---Neither the police had determined its authority, nor the Trial Court had adverted to its jurisdiction while taking cognizance by accepting the F.I.R. and the challan---Matter was governed by the Financial Institutions (Recovery If Finances) Ordinance, 2001, which was a complete Code in respect of transactions between the financial institution and the customer, which were defined by S.2(a) & (c), while S.7 of the said Ordinance had provided the powers of the Banking Court---Subsection (4) of S.20 of the same Ordinance had provided the remedy for a financial institution where the cheque was dishonestly issued and the same was dishonoured because of insufficient balance in the account---Proviso of S.7 of the said Ordinance had clearly envisaged that any offence embodied in S.20 committed by the customer of the Bank would only be subjected by the above mandate of law by way of filing direct complaint, as defined in S.4(h), Cr.P.C. in the Banking Court having jurisdiction---Police, therefore, had no authority to book the accused by lodging the F.I.R. and taking cognizance in the matter on the basis of F.I.R. and assuming jurisdiction by the Magistrate was without lawful authority and coram non judice---Financial Institutions (Recovery of Finances) Ordinance, 2001, being a special enactment had overriding effect on the ordinary law and the borrower or customer of the Bank could not be proceeded under the provisions of Pakistan Penal Code---Only remedy available to the Bank and Financial Institution was to invoke the provisions of S.20 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, by filing a direct complaint in terms of proviso of S.7 of the said Ordinance---Prosecution of accused under Ss. 489-F & 420, P.P.C. on the basis of F.I.R. was abuse of process of the court and without lawful authority--4mpugned orders were consequently set side and the proceedings pending in the court of Magistrate were quashed-Petition was allowed accordingly.?

Muhammad Iqba v. S.H.O. Police Station Haji Pura PLD 2009 Lah. 541 and Nizar Ali Fazwani v. Messrs Pak Golf Lease Committee Limited 2009 PCr.LJ 325 ref.

Liaquat Hussain v. The State 2009 MLD 1167 distinguished.

Amjad Ali Sahito for Applicant.

N.H. Pirzada for Respondent No.1.

Syed Meeral Shah, D.P.-G.

PCrLJ 2010 KARACHI HIGH COURT SINDH 422 #

2010 P Cr. L J 422

[Karachi]

Before Shahid Anwar Bajwa, J

SHAHABUDDIN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.224 of 2009, decided on 22nd December, 2009.

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

----S. 200---Examination of complainant---Scope---Language of S.200, Cr.P.C. does not lead to the inevitable inference that the examination of complainant is a sine qua non of valid proceedings in all circumstances---Where complaint has been made by a court or by a public servant, S.200, Cr.P.C. expressly declares that there is no need of examination of the complainant before issuing process---Criminal Procedure Code, 1898, does not contain any provision to the effect that a failure to follow the provisions of S.200, Cr.P.C. regarding examination of the complainant entails invalidation of the proceedings taken---Non-examination of the complainant amounts to a mere irregularity and apart from the question of prejudice, would not be sufficient to vitiate the proceedings.

Najam Sethi, Editor-in-Chief, "Aaj Kal" v. (1) Kari Shamim Ahmed Anjum, Senior Member, Zili Aman Committee, (2) Pervaiz Iqbal Butt M.I.C., Faisalabad 2003 YLR 533 ref.

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

----S. 5---Criminal Procedure Code (V of 1898), S.200---Investigation and procedure---Examination of complainant---Court has a discretion under S.5 of the Illegal Dispossession Act, 2005, to entrust inquiry to Officer In charge of the police station and thereafter, comes the cognizance---Recording of the statement of the complainant before taking any other step in the proceedings, is not an essential requirement for proceeding under the Illegal Dispossession Act, 2005---However, after the Court decides to take cognizance, then it must start with recording statement under S.200, Cr. P. C.

----Preamble---Scope of Illegal Dispossession Act, 2005---Although in the preamble the words "property grabbers" have been used and also used in the plural, yet the preamble despite deserving due weight, does not have the same weight as by the words used in the Act.

Attorney-General v. H.R.H. Prince Earnest Augustus of Hanover (1957) A.C. 436 ref.

(d) Interpretation of statutes---

----Preamble---Scope and value detailed.

Attorney-General v. H.R.H. Prince Earnest Augustus of Hanover (1957) A.C. 436 ref.

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

----S. 3---Prevention of illegal dispossession of property--Prosecution---Scope---Any individual, who has been illegally dispossessed from his property, has a right to have a recourse to the provisions of Illegal Dispossession Act, 2005, without prejudice to other remedies simultaneously available to him under the other laws.

(f) Words and phrases---

----`Possession"---"Actual possession" and "Constructive possession"---Connotation---Law, in general, recognizes two kinds of possession actual possession and constructive possession---Person who knowingly has direct physical control over a thing at a given time is in its actual possession, whereas a person who though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is in its constructive possession---Either of the said two possessions may be sole or joint.

Black's Law Dictionary and Happy Canyon Inv. Co. v. Title Ins. Co. of Minnesota, Colo. App., 560 P.2d 339, 842 ref.

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

----S. 3---Prevention of illegal dispossession of property---Use of physical force not necessary---For illegal dispossession under the Illegal Dispossession Act, 2005, physical force is not essentially required to be used, nor it is necessary that the property from which one is illegally dispossessed must be a building or premises, or one must be living there---Whosoever takes possession of the property without lawful authority renders himself liable for prosecution under the. Act.

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

----S. 3---Appreciation of evidence---Evidence brought on record had conclusively proved that the complainant was lawful owner of the plot in question and the accused without any lawful authority had assumed possession of the same in the absence of the complainant---Such assumption of possession by the accused on the plot, which was in constructive possession of the complainant, had amounted to dispossession---Pendency of a civil suit in the case of illegal dispossession had no bearing whatsoever---Omission to ask a question in the statement of accused under S.342, Cr.P.C. regarding documents produced by prosecution, was a mere irregularity, which had not occasioned any miscarriage of justice---Conviction of accused was consequently upheld---However, dispossession was from a naked plot and not from a home---Accused was not a professional land grabber and was not involved in any such previous criminal activity--Sentence of ten years' R.I. and fine of Rs.50,000 awarded to accused, was reduced to three years' R.I. and fine of Rs.10,000 respectively, in circumstances---Appeal was disposed of accordingly.

Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah. 231; Abdul Majid v. MD. Mansur Ali and 14 others 1969 PCr.LJ 692; Captain S.M. Aslam v. The State and 2 others PLD 2006 Kar. 221; Shamim v. The State and Muhammad Bashir PLD 1966 SC 178; Roshan Ali v. Amir Bux and another PLD 2002 Kar.115; Najam Sethi, Editor-in-Chief "AAJ KAL" v. 1. Kari Shamim Ahmed Anjum, Senior Member, Zili Aman Committee, 2. Pervaiz Iqbal Butt MIC, Faisalabad 2003 YLR 533; Sahib Khan v. Saadullah Khan and another PLD 2008 Pesh. 49; Rahim Tahir v. Ahmed Jan and 2 others PLD 2007 SC 423; PLD 2007 Lah. 231; Malik Muhammad Naeem Awan v. Malik Aleem Majeed and 5 others, Wali Muhammad v. Additional Sessions Judge, Jaranwala, District Faisalabad and 5 others PLD 2008 Lah. 392; Sharmila Farooqui v. The State 2009 MLD 850, Maqsood Ahmed Qureshi v. Muhammad Azam Ali Siddique and 8 others PLD 2009 Kar. 65; Attorney-General v. H.R.H. Prince Earnest Augustus of Hanover (1957) A.C. 436; Black's Law Dictionary; Happy Canyon Inv. Co. v. Title Ins. Co. of Minnesota, Colo. App., 560 P.2nd 339, 842 and Salmond on Jurisprudence Twelfth Edition p.270 ref.

Muhammad Ilyas Khan for Appellant.

Abdullah Rajput, A.P.-G for the State.

Aman Khattak for the Complainant.

Date of hearing: 17th November, 2009.

PCrLJ 2010 KARACHI HIGH COURT SINDH 441 #

2010 P Cr. LJ 441

[Karachi]

Before Mushir Alam and Munib Akhtar, JJ

FARHAN AHMED HASHMI alias CHOTTA----Applicant

Versus

THE STATE----Respondent

Criminal Revisions Applications Nos. 169, 172, 173 of 2009, decided on 9th January, 2010.

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

----Ss.5 & 7---Penal Code (XLV of 1860), S.302---Qatl-i-amd---Application for trial before Juvenile Court on plea of accused being minor---Dismissal of application---Police Surgeon examined the petitioner in order to determine age of accused and concluded that accused was between 18 and 19 years old and certified his findings by means of the age certificate---Petitioner did not challenge said findings of the Police Surgeon; however he filed application again before the Anti-Terrorism Court that he being minor should be tried before the Juvenile Court---Said application was also dismissed---Validity---Held, onus of establishing minority lay on the person who raised such a claim and it was incumbent on the applicant to have produced all the evidence favourable to him or on which he sought to place reliance at the stage when he himself had raised the plea of his minority---Accused could have produced his birth certificate at that time and also supported the same by means of other evidence, but no such material or evidence was produced at the relevant time and he did not challenge the finding recorded in the age certificate issued by the Police Surgeon---It was only after the passage of more than 2 years that accused sought to re-agitate the issue of his minority---In the present case petitioner was medically examined at his own instance and chose neither to challenge the age certificate issued by the Police Surgeon nor to produce any evidence in his support including the birth certificate, which had been presented at a belated stage---Accused was not entitled to re-agitate on issue which had already been decided against him---No ground had been raised which could justify interference with the impugned order made by the Anti-Terrorism Court.

Muhammad Aslam v. State PLD 2009 SC 777; Sultan Ahmed v. Additional Sessions Judge-I PLD 2004 SC 758; Nazeer v. State PLD 2007 SC 202; Sajjad Ahmad v. State 2006 PCr.LJ 211; Tauseef v. State PLD 2009 Lah. 535; Papoo v. State 1999 YLR 691 and Yousuf v. State 1975 PCr.LJ 936 ref.

Mushtaq Ahmed for Applicant.

Khadim Hussain, D.P.-G. NAB for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 452 #

2010 P Cr. L J 452

[Karachi]

Before Ahmed Ali Shaikh, J

RAJO KHAN and 3 others----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.S-366 of 2009, decided on 21st December, 2009.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.324, 395, 337-H(ii), 511, 148 & 149---Attempt to commit Qatl-i-amd and dacoity---Pre-arrest bail, refusal of---Names of accused persons transpired in the F.I.R. and specific role for causing firearm injuries to the prosecution-witnesses was attributed to each of accused persons---Accused persons were armed with deadly weapons like guns and K.Ks.---Medical evidence corroborated the ocular version---One of the prosecution witnesses had received firearm injury below his right eye, whereas others had received the injuries at their respective bellies---Delay in lodging F.I.R. had properly been explained by the complainant---Delay in lodging F.I.R., was not helpful to accused persons at bail stage, in circumstances---Since no mala fide or ulterior motive on the part of complainant had been alleged by accused; and the specific role had been attributed to each accused, there was no merit in bail application, which was dismissed accordingly and interim order stood recalled.

Abdul Sattar Narejo v. The State 2007 YLR 2009; Raja v. The Sxtate 2008 YLR 678; Allah Ditta and 3 others v. The State 2008 YLR 681; Shahid Durani v. The State 1997 MLD 1901; Adnan Nabi v. The State 2002 PCr.LJ 81; Master Dur Muhammad and 2 others v. The State 1994 PCr.LJ 1769; Kaleem Ahmed alias Hakeem Ahmed v. The State 1994 PCr.LJ 1771; Muhammad Aslam and another v. The State 2007 SCMR 1412 and Choudhry Waris Ali v. The State 2007 SCMR 1607 rel.

Abdul Sattar Sarki for Applicants.

Shahid Ahmed Shaikh, Asstt. P.-G. Sindh for the State.

Muhammad Azeem Panhwar for the Complainant.

PCrLJ 2010 KARACHI HIGH COURT SINDH 461 #

2010 P Cr. LJ 461

[Karachi]

Before Syed Sajjad Ali Shah and Ahmed Ali M. Shaikh, JJ

GHULAM MURTAZA----Appellant

Versus

THE STATE----Respondent

Criminal Jail Appeals Nos.D-66 and Criminal Appeal No.D-58 of 2005, decided on 23rd November, 2009.

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

----Ss. 302(6)/34 & 324/34---Qatl-i-amd---Appreciation of evidence---Place of occurrence was surrounded by a jungle---Incident had taken place in dark hours of night---No source of light was shown at the site---Mistaken identity of accused, thus, could not be ruled out---Pistol recovered from accused having not been sent to Ballistic Expert for opinion, was not helpful for prosecution---Medical evidence did not in any way corroborate the ocular testimony regarding the identity of the culprits---Accused were not nominated in the F.I.R.---Complainant had implicated the accused after 14/15 days in his supplementary statement---Ocular evidence was inconsistent, untrustworthy and lacked confidence---Prosecution case was replete with infirmities and contradictions---Prosecution had failed to discharge its burden by proving its case beyond any doubt and without taking any benefit of the weakness of the defence---Accused were acquitted in circumstances.

Khalid Javed and another v. The State 2003 SCMR 1419; Falak Sher alias Sheru v. The State 1995 SCMR 1350; Tariq Pervez v. The State 1995 SCMR 1345 and Ghulam Qadir and 2 others v. The State 2008 SCMR 1221 ref.

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

----Ss. 302(b)/34 & 324/34---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Single circumstance of doubt sufficient to make the case doubtful---Principle---Many circumstances creating doubt are not required for giving benefit of doubt to accused---Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused would make him entitled to benefit of doubt, not as a matter of grace and concession, but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345 and Ghulam Qadir and 2 others v. The State 2008 SCMR 1221 ref.

Aftab Ahmed Gorar for Appellant (in Criminal Appeal No.D-58 of 2005).

Nisar Ahmed G. Abro, State Counsel for the State (in Criminal Appeal No.D-58 of 2005).

Ali Nawaz Ganghro for Appellant (in Criminal Appeal No.D-66 of 2005).

Nisar Ahmed G. Abro State Counsel (in Criminal Appeal No.D-66 of 2005).

Date of hearing: 1st October, 2009.

PCrLJ 2010 KARACHI HIGH COURT SINDH 486 #

2010 P Cr. L J 486

[Karachi]

Before Shahid Anwar Bajwa, J

JIAND----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.942 and M.A. No.4848 of 2009, decided on 18th December, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Qatl-i-amd---Bail, grant of---Two witnesses had stated that they had overheard the accused and other persons talking to the effect that the accused had promised to pay to the killer Rupees three lac for killing the deceased, but he had not so far paid the entire amount---Such overhearing was the only piece of evidence against the accused---No statement of any concerned witness had been recorded--Case against accused, thus, warranted further probe into his guilt---Bail was allowed to accused in circumstances.

Muhammad Ilyas Khan for Applicant.

Miss Seema Zaidi, A.P.-G. for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 491 #

2010 P Cr. L J 491

[Karachi]

Before Shahid Anwar Bajwa, J

MUHAMMAD YASEEN KHAN and 2 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.37 of 2009, decided on 22nd December, 2009.

Penal Code (XLV of 1860)---

----Ss. 324 & 337-A(iii)---Qatl-i-amd and Shajjah---Appreciation of evidence---F.LR. was registered after the injured persons had been shifted to hospital---Both the injured persons were the only material witnesses in the case, who had specifically ascribed a role of firing to the accused causing injuries to them---Statements of the injured witnesses had remained unshaken---Receipt of injuries on the lower parts of their legs by the witnesses had indicated that accused had no intention to kill them, otherwise he would not have shot at their legs---Conviction of accused under S.324 P.P.C. was consequently altered to S.307-A(iii), P.P.C. and since he was in jail for the last five years, his sentence was reduced to the imprisonment already undergone by him in circumstances.

Abdul Razzak for Appellants.

Complainant in person.

Muhammad Iqbal Awan, Asst. P.-G., Sindh for the State.

Date of hearing: 6th October, 2009.

PCrLJ 2010 KARACHI HIGH COURT SINDH 509 #

2010 P Cr. L J 509

[Karachi]

Before Ghulam Sarwar Korai, J

BALACH----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-964 and M.As. Nos.3300, 3301 of 2009, decided on 31st October, 2009.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/149---Qatl-i-amd---Bail, refusal of---Accused along with others had' allegedly murdered 25 Years old young man`---During investigation accused was found guilty and he was facing the trial---Ocular evidence and medical evidence apparently were not at conflict, but minor contradiction, if any, could not be resolved through deeper appreciation of the same at bail stage---Bail was declined to accused in circumstances.

Muhammad Shabir v. The State 1999 MLD 1352; Muhammad Mumtaz and another v. The State 1999 MLD 3302; Ghulam Shabbir and others v. The State 2000 PCr.R 8; Ali Ahmed v. The State 2000 PCr.R 661; Muhammad Illyas and another v. The State 2000 MLD 1604; Muhammad Jahangir v. Kala Khan and another 2004 PCr.LJ 1843; Jehangir v. The State 2004 PCr.LJ 1254; Shafqat Abbas v. The State 2005 YLR 1588; Muhammad Shafiq alias Chhara and another v. The State 2007 MLD 736; Loung and another v. The State 2007 PCr.LJ 1571 and Abdul Hayee and 2 others v. The State 1996 SCMR 555 ref.

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

----Ss. 497/498---Bail---Assessment of evidence---Principles---Material collected by the prosecution during investigation is tentatively assessed, while deciding a bail application.

Asardass D. Hemnani for Applicant.

Sardar Ali Shah, A.P.-G. for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 518 #

2010 P Cr. L J 518

[Karachi]

Before Aqeel Ahmed Abbasi, J

THE STATE through Deputy Attorney-General----Appellant

Versus

MUHAMMAD AMIN HAROON and 14 others----Respondents

Criminal Acquittal Appeals Nos.202 and 213 of 2008, decided on 11th January, 2010.

(a) Interpretation of statutes---

----Preamble of an enactment---Role in interpretation---Preamble, in order to determine the scope of statute, is always a key to interpret such statute to bring the offence within the ambit of a particular statute---It is essential to examine that the offence should have nexus with the object of the Act and is covered by its relevant provisions.

Fazal Dad v. Col. (Rtd.) Ghtilam Muhammad Malik and others PLD 2007 SC 571 ref.

(b) Federal Investigation Agency Act, 1974 (VIII of 1975)---

----Preamble---Object of the Act---Object of framing the law of Federal Investigation Agency was to set up an Investigating Agency to investigate into offences committed in connection with the matters concerning Federal Government and the matters connected therewith---Though the preamble is not an operative part of the statute, but nevertheless it does provide a useful guide for finding out the intention of the Legislature and, therefore, cannot be ignored while interpreting the law.

Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan and others PLD 1972 SC 279 ref.

----Preamble of a statute---Object---Though the preamble is not an operative part of the statute, but nevertheless it does provide a useful guide for finding out the intention of the Legislature and, therefore, cannot be ignored while interpreting the law.

Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan and others PLD 1972 SC 279 ref.

(d) Copyright Ordinance (XXXIV of 1962)---

----Ss. 13(1)(d), 13(1)(e), 53(2)(b), 53(2)(c), 66-A & 66-B---Federal Investigation Agency Act, 1974 (VIII of 1975), S.3---Scope and jurisdiction of FIA in the cases relating to Copyright Ordinance, 1962---Federal Investigation Agency has jurisdiction to proceed in the cases pertaining to violation of Copyright Ordinance, 1962, particularly after insertion of Entry No.26 in the Schedule to the Federal Investigation Agency Act, 1974---However, the FIA having been given the concurrent jurisdiction, can take cognizance of such cases where violation of some Government work is involved, but has no jurisdiction in respect' of infringement of Copyright between private parties or disputes which are civil in nature.

(e) Copyright Ordinance (XXXIV of 1962)---

----S. 3---Copyright---Definition, meaning and connotation explained.

(f) Copyright Ordinance (XXXIV of 1962)---

----S. 56---Infringement of copyright and taking of cognizance---Essentials---Infringement of copyright does not arise unless there exists some intellectual or artistic work, and there is any owner or claimant of such work, and cognizance in terms of Copyright Ordinance, 1962, cannot be taken under such circumstances.

(g) Copyright Ordinance (XXXIV of 1962)---

----Ss. 66-A, 66-B, 71, 53, & 54---Federal Investigation Agency Act, 1974 (VIII of 1975), S.3---Criminal Procedure Code (V of 1898), S.417---Infringement of copyright---Appeals against acquittal---Existence of some owner or claimant of the original work was essential for establishing infringement of copyright---In one case the complainant who was claiming copyright through assignment had later on withdrawn from such claim and, thus, the case fell not in the category where there was no owner or claimant of the copyright---In the other case there was no owner or claimant of any purported copyright---Cognizance had been taken by the State through FIA---F.I.R. and the challan submitted before Trial Court did not reveal as to whether the alleged infringement of copyright was in respect of Government work or was relatable to Government work, and how the provisions of Ss.53 & 54 read with S.66-B of the Copyright Ordinance, 1962, were attracted in the case---Federal Government had neither issued any Notification in terms of Ss.53 & 54 of the said Ordinance, 'nor any provision of law had been cited whereby suo motu cognizance taken by the FIA in terms of the Copyright Ordinance, 1962 for the alleged infringement of copyright and violation of any provision of the Copyright Ordinance, 1962---Impugned orders passed by Trial Court acquitting the accused under S.249-A, Cr.P.C. did not suffer from any factual impropriety and legal defect---Appeals against acquittal of accused were dismissed in circumstances.

Mian Hamza Shahbaz Sharif v. Federation of Pakistan and Others 1999 PCr.LJ 1584; Dr. Sayed Rahatullah v. Deputy Director, Crime Circle-1, 1990 PCr.LJ 1957; Iftikhar Hussain and others v. Government of Pakistan 2001 PCr.LJ 146; Fazal Dad v. Col. (Rtd.) Ghulam Muhammad Malik and others PLD 2007 SC 571; Thar Production v. Deputy Director, FIA and others Writ Petition No.1004 of 2007; Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan and others PLD 1972 SC 279; Muhammad Hussain Patel v. Ghaffar Wali Muhammad and others PLD 1972 Kar. 421 and Syed Akhlaue Hussain v. Habib Ismail Bajwa PLD 1969 Lah. 563; ref.

Rizwan Ali Dodani, Standing Counsel/D.A.-G. for the State.

Yasin Ali for Respondents Nos.1 to 12 and 11 and 14.

Date of hearing: 23rd November, 2009.

PCrLJ 2010 KARACHI HIGH COURT SINDH 531 #

2010 P Cr. LJ531

[Karachi]

Before Gulzar Ahmed and Irfan Saadat Khan, JJ

Mst. LAIBA ANTHONY----Applicant

Versus

THE STATE----Respondent

Criminal Revision Application No.97 of 2009, heard on 27th October, 2009.

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

----Ss. 339 & 339-A---Trial of person to whom pardon has been tendered and its procedure---Cumulative purport---Procedure of trial of a person who has, been tendered pardon has to commence with the certificate containing opinion of Public Prosecutor that the person pardoned has not complied with the conditions on which tender was made and that such person be tried for the offence of which pardon was so tendered and that he shall be tried separately from the other accused, and before such trial is commenced, the person who has accepted the tender' of pardon will have to record the plea of having complied with the conditions of tender and if the plea be that of having made the compliance, then the Court will proceed to try such person and before judgment is passed will consider such plea and in case the Court comes to the conclusion that he has complied with the conditions of tender of pardon, he shall be acquitted.

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

---Ss. 338, 339 & 339-A---Penal Code (XLV of 1860), S.365-A/34---Trial Court in dealing with the case of accused who had been tendered pardon under S.338, Cr.P.C., who had recorded her statement under S.164, Cr.P.C. and whose evidence had also been recorded as prosecution witness, had to deal with her case, as per procedure provided under Ss.339 & 339-A, Cr.P.C. and not otherwise---Trial Court had not followed the said procedure and without taking the certificate. containing the opinion of the Public Prosecutor had, on its own, proceeded to consider evidence of the accused petitioner and further proceeded to try her as an accused person jointly with other accused---In the impugned order Trial Court had clearly observed that the petitioner was not yet finally declared as an approver and pardoned and required her to give statement under S.342, Cr.P.C.---Trial Court had adopted a procedure not in accordance with the mandatory' provisions of Ss.339 & 339-A, Cr.P.C.---Impugned order, thus, suffered from grave illegality and the same was consequently set aside with direction to Trial Court to proceed with the case in accordance with the provisions of Ss.339 & 339-A, Cr.P.C.---Revision petition was disposed of accordingly.

Malik Mushtaq alias Black Prince v. The State 2005 YLR 1728; Mst. Tahmina Asif v. The State PLJ 2008 FSC 100; Ghulam Qadir v. The State PLD 1959 SC (Pak.) 377 and Gurdit Sindh v. Emperor AIR 1939 Lah. 66 ref.

---Ss. 339/339-A---Statement of approver---Corroboration-Rule of prudence---Independent corroboration of an approver's statement is always insisted upon material points, suggesting a link between the accused persons and the crime, before such statement could be accepted as a safe foundation for their conviction.

Muhammad Farooq for Applicant.

Abdul Rahman Kolachi, Asstt. P.-G.

Zubair Zia Siddiqui for accused Zubair.

Muhammad Ashraf Qazi Amicus curiae.

PCrLJ 2010 KARACHI HIGH COURT SINDH 537 #

2010 P Cr. L J 537

[Karachi]

Before Aqeel Ahmed Abbasi, J

SONO GHANGHRO----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-734 and M.As. Nos.2384, 2385 of 2009, decided on 7th January, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Qatl-i-amd---Bail, grant of---Accused was nominated in the F.I.R., but the role assigned to him therein was only of ineffective firing---Death of the deceased, according to medical report, had been caused by the wounds of the pellets of a cartridge allegedly fired by co-accused---Only one empty cartridge was recovered from the place of occurrence---Case of accused, therefore, needed further inquiry and was not free from reasonable doubt, benefit of which must go to him---Accused had become entitled to bail in circumstances and he was admitted to bail accordingly.

Muhammad v. The State 1998 SCMR 454; Faraz Akram v. The State 1999 SCMR 1360; Mumtaz Hussain and 5 others v. The State 1996 SCMR 1125 and Ghulam Dastagir and others v. The State 2007 YLR 3297 rel.

Muhammad Haneef and another v. The State PLD 2006 Kar. 470; Taju v. The State 2006 MLD 1334 and Waryam v. The State 2006 PCr.LJ1611 ref.

Ali Nawaz Ghanghro for Applicant.

Naimatullah Bhurgri, State Counsel.

PCrLJ 2010 KARACHI HIGH COURT SINDH 545 #

2010 P Cr. L J 545

[Karachi]

Before Munib Akhtar, J

ABDUL SATTAR alias HAKIM ALI and another----Applicants

Versus

THE STATE----Respondent

Criminal Pre-arrest Bail Application No.880 and M.A. No.3691 of 2009, decided on 15th December, 2009.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.392---Robbery---Pre-arrest bail, confirmation of---Inordinate delay of 13 days, in the filing of F.I.R., had not been satisfactorily explained---History of enmity existed between the complainant and accused party---Previously an F.I.R. was lodged against accused party, by the complainant party on virtually identical facts, which after Police investigation was disposed of as cancelled, which prima facie had indicated that. there was mala fide intent and an attempt to involve accused in criminal proceedings as a result of long standing enmity between the two parties---Police while investigating the matter, ought to have taken into consideration the fact that according to their own inspection of the place of incident there did not appear to, be any visible signs at all of the alleged incident, but Police had not done so---Since there appeared to be prima facie mala fide, accused had made out a case for the grant of pre-arrest bail---Pre-arrest bail earlier granted to accused was confirmed, in circumstances.

Manzoor Hussain Larik for Applicants.

S. Sardar Ali Shah, A.P.-G. for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 560 #

2010 P Cr. L J 560

[Karachi]

Before Amir Hani Muslim and Ahmed Ali Shaikh, JJ

ZARYAB and another----Appellants

Versus

ADDITIONAL SESSIONS JUDGE, KOTRI and 7 others----Respondents

Criminal Acquittal Appeal No.D-175 of 2009, decided on 2nd November, 2009.

Penal Code (XLV of 1860)---

----S. 302/34---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal---Qatl-i-amd---Deposition of prosecution witnesses had revealed that the complainant as well as eye-witnesses did not allege in their evidence that any of accused persons had caused any injury to deceased---According to F.I.R. accused were armed with pistols and Dandas, but complainant in his deposition had stated that they were empty-handed at the time of occurrence---One of the eye-witnesses in his cross-examination had stated that the Police had not obtained his signature on any paper nor recorded his statement---Evidence of other prosecution witness was also on same line---Witness, in cross-examination had stated that Police did not record his statement, but obtained his signature on blank paper at Hospital---Such admission on the part of the prosecution witnesses who claimed to be eye-witnesses of the occurrence, and contradictory version of the complainant, had led to the conclusion that the prosecution could not succeed to prove its case against accused persons---Conclusion reached by the Trial Court, in circumstances was reasonable and based on cogent reasons and no infirmity was found in the impugned order---Approach for dealing with appeal against conviction would be different and should be distinguished from that against acquittal, because presumption of double innocence was attached to the order of acquittal---Prosecution could not produce tangible evidence, which could connect accused persons for the alleged commission of offence---Allegation against accused persons that they had instigated the other co-accused to kill deceased, did not appeal to the reason when it was alleged that accused were armed with weapons and one with lathi and had not participated in the commission of the offence.?

Munawar Shah v. Liaqat Hussain and others in 2002 SCMR 713 ref.

Sajjad Ahmed Chandio for Appellant.

Meeral Shah Bukhari, Dy. P.-G. for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 572 #

2010 P Cr. L J 572

[Karachi]

Before Ahmed Ali Shaikh, J

MUHAMMAD HASSAN----Applicant

Versus

THE STATE----Respondent

Criminal Bail- Application No.821 of 2009, decided on 28th September, 2009.

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

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotic---Bail, grant of---Benefit of doubt---"Charas" Weighing 1100 grams was allegedly recovered from possession of accused---Prosecution witnesses of arrest of accused and recovery of "Charas" from him had not supported the prosecution case, categorically stating that the accused was innocent and had been falsely implicated in the case by the complainant S.H.O---Complainant due to registration of this false ease had been reverted from S.I. P. to A. S-I. P. and suspended by RPO of the region---S.P. (Investigation) had also recommended for cancellation of the case, but Magistrate did not agree and on his direction challan had been submitted in the Court---Benefit of every doubt had to go to the accused even at bail stage---Further inquiry was warranted into the guilt of accused and he was admitted to bail in circumstances.

PLD 1972 SC 277 ref.

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

----S. 497---Bail---Benefit of doubt---Principle---Law for the purpose of bail is not to be stretched in favour of prosecution---Benefit of doubt if any, arising in the case must go to the accused even at bail stage.

PLD 1972 SC 277 ref.

Manzoor Ahmed Jumejo for Applicant.

Syed Sardar Ali Shah, A.P.-G. for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 579 #

2010 P Cr. L J 579

[Karachi]

Before Mushir Alam and Munib Akhtar, JJ

KHAN MUHAMMAD MAHESAR----Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU (SINDH) and another----Respondents

Constitutional Petition No.D-2103 of 2009, decided on 6th January, 2010.

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

----S. 23, proviso---Reference showing accused as Benami owner of property standing in applicant's name---Application for release and exclusion of such property---Applicant's plea that he acquired such property in year 1997 and accused has nothing to do with same---Plea of authority that applicant introduced -accused to a Bank, where accused on 13-5-1995 issued a cheque to applicant---Validity---Such cheque could not be regarded as indicating that property acquired by applicant many years prior thereto was held Benami for accused---Such cheque could have been issued for any number of plausible reasons---Mere fact of introducing accused would not prima facie indicate that applicant had acquired property in year 1997 for benefit of accused---Nothing on record was available to establish any reasonable link or connection between accused and such property of applicant---High Court accepted such application subject to furnishing personal bond by applicant.

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

----S. 23---Constitution of Pakistan (1973), Art. 23---Provisions of S.23 of National Accountability Ordinance, 1999---Object stated.

The purpose of section 23 of the National Accountability Ordinance, 1999 is to ensure that an accused person, who having committed an offence under the said Ordinance, does not defeat any punishment to which he may be liable thereunder by transferring out his properties or assets during the pendency of any investigation, inquiry or trial. However, that purpose cannot obviously be extended to include any third party, who may have had some dealings with the accused and prevent such a person from dealing with his properties and assets in such manner as he may deem fit. In this context, it is important to keep the provision of Article 23 of the Constitution in mind, which confers a fundamental right on every citizen to acquire, hold or dispose of his property subject to any reasonable restriction imposed by law in the public interest. The language of S- 23 of the Ordinance, if read and applied literally, is quite draconian and must be construed in a manner that is consistent with and subject to the mandate of Article 23 of the Constitution i.e. that any restrictions imposed thereby are to be interpreted and applied in a reasonable manner.

Yawar Farooqui and Irfan A. Memon for Petitioner.

Aslam Butt, D.P.-G. NAB for the State.

Date of hearing: 6th January, 2010.

PCrLJ 2010 KARACHI HIGH COURT SINDH 585 #

2010 P Cr. L J 585

[Karachi]

Before Bhajandas Tejwani, J

ABDUL KARIM----Applicant

Versus

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

Criminal Miscellaneous Application No.S-323 of 2009, decided on 29th October, 2009.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 561-A---Justice of Peace had declined the request of tilt applicant for direction to the Police for lodging F.I.R., on the basis that if registered sale-deed in respect' of plot, proved to be forged, then the applicant had remedy to file a suit for cancellation of said sale-deed---Held, prima facie offence of forgery and manipulation of a forged document was proved before Justice of Peace and it was right of the party to set the criminal law into motion for prosecution of a person who committed such crime of managing a forged document in order to usurp the property of other persons and was liable for prosecution; but Justice of Peace had foisted his own view advising the party to seek remedy before the civil court instead of criminal prosecution---Along with criminal prosecution, the applicant was also entitled to avail a remedy by filing suit for relief of cancellation of sale-deed or any other relief---No bar existed in availing both remedies simultaneously---Application was allowed and impugned order passed by the Justice of Peace was set aside with direction to S.H.O. concerned to record the version of the applicant; and in case a cognizable offence was made out, he should register the F.I.R. of the applicant and investigate the matter in accordance with law.

Riazat Ali Sahar for Applicant.

Syed Meeral Shah, D.P.-G. along with Bukhshal, S.H.O. Police.

Station Jamshoro for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 600 #

2010 P Cr. L J 600

[Karachi]

Before Shahid Anwar Bajwa, J

MASOOD----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-27 of 2010, decided on 2nd February, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 337-H(ii), 148 & 149---Qatl-i-amd---Bail, grant of---Injury alleged to have been caused by accused was on the knee and medical report stated that it was only muscle deep---F.I.R. had revealed that first it was the co-accused who fired with his shotgun and one of the pellets went inside the thorax cavity above the left nipple; and medical report was clear that death was caused by injury to vital organ, such as heart and lung as a result of fire caused by the co-accused---Medical report also stated that said injury was sufficient to cause death in the ordinary course of nature---Accused was arrested on 10-6-2009, Challan had been filed 15 days after arrest, charge had not been framed---Role ascribed to accused was of firing on non-vital parts of the body---Accused, was admitted to bail, in circumstances.

Syed Abdul Baqi and others v. The State 1997 SCMR 32; Zulfiqar v. The State 2002 PCr.LJ 791; Mohsin v. The State 1997 PCr.LJ 159 and Allahyar and another v. The State 2006 PCr.LJ 1748 ref.

Safdar Ali G. Bhutto for Applicant.

Muhammad Ashique Dhomoraho for the Complainant.

Naimatullah Bhurgri for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 611 #

2010 P Cr. L J 611

[Karachi]

Before Abdul Rasheed Kalwar, J

MIR MUHAMMAD----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.723 of 2007, decided on 3rd November, 2008.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(a)---Possessing narcotic---Bail, grant of---Case was punishable with imprisonment for two years or with fine or both---Sample had not been taken from each Purrie of recovered heroin, but only 10 Purries had been taken out for chemical examination---There would be no proof regarding remaining heroin as to whether it was heroin or not---Accused could tentatively be saddled with liability of possessing 12 grams heroin in case of positive chemical examination report---No useful purpose would be served by keeping accused behind the bars---Accused was admitted to bail, in circumstances.

Muhammad Sharif Siyal for Applicant.

Mukhtar Ahmed Khanzada for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 618 #

2010 P Cr. L J 618

[Karachi]

Before Amir Hani Muslim and Irfan Saadat Khan, JJ

JAMEEL AHMED----Applicant

Versus

THE STATE and another----Respondents

Criminal Revision Application No.109 of 2009, heard on 9th October, 2009.

Criminal Procedure Code (V of 1898)---

----S. 514---Forfeiture of surety bond---Accused for whom petitioner stood surety having absconded during pendency of the trial, surety amount of the petitioner was forfeited---On application by the petitioner, forfeited amount was reduced from Rs.3,00,000 to Rs.2,00,000--Validity---Accused was acquitted by the Trial Court in absentia---Petitioner and his daughter, present in the court, on the one hand had prayed for letting aside the impugned order and on the other hand they prayed for taking action against acquitted accused who allegedly made their lives miserable and kept on extending threats---Police official, present in the court was directed to lodge the F.I.R. after recording statement of the petitioner as well as his daughter and take action against the acquitted accused in accordance with law and ensure that no harm was caused to the petitioner or his daughter---Accused having been acquitted in absentia, impugned order was harsh which was set aside.

A.K. Qureshi for Applicant.

Zafar Ahmed Khan, D.P.-G. for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 628 #

2010 P Cr. L J 628

[Karachi]

Before Bhajandas Tejwani, J

Messrs NOVARTIS PHARMA (PAKISTAN) LTD. through Corporate Pharma Compliance Officer and another----Applicants

Versus

IVTH JUDICIAL MAGISTRATE, LARKANA and 4 others----Respondents

Criminal Miscellaneous Application No.138 of 2009, decided on 21st December, 2009.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), S.182---False information with intent to cause public servant to use his lawful power to the injury of another person---Quashing of order/proceedings---Ingredients of S.182, P.P.C.---For proving the information led before any. public servant or before the Police as false, there should be a positive evidence to prove that the information so given was actually false and that no such incident or act had taken place; and alleged information made without any material, was baseless and untrue---Other ingredients of S.182, P.P.C., were that such false information was given knowingly and believing that the same was false in order to use the lawful powers of public servant to injure or annoy any person and should falsely charge any person having committed the said offence---In the present case, no such material was collected by the Police and the summary was prepared only on the ground that complainant failed to appear before the Investigating Officer during investigation---Such was not a ground to adjudicate the information or complaint or F. I. R. lodged by the complainant was actually false---Application for quashing order/proceedings was allowed and proceedings in the case were quashed.

Muhammad Murad v. The State 1993 PCr.LJ 1097; Muhammad Juman v. The State 2005 YLR 1785; Rana Riaz Ahmad Khan v. The State 2008 MLD 746 and Sarwar Begum v. The State 1994 PCr.LJ Note 114 at p.73 ref.

Omar Soomro for Applicants.

Azhar Tunio for Respondent.

Niamatullah Bhurgari for the State.

Date of hearing: 21st December, 2009.

PCrLJ 2010 KARACHI HIGH COURT SINDH 654 #

2010 P Cr. L J 654

[Karachi]

Before Mushir Alam and Aqeel Ahmed Abbasi, JJ

ZAHID HUSSAIN----Applicant

Versus

THE STATE----Respondent

Criminal Transfer Application No.38 of 2009, heard on 23rd October, 2009.

Criminal Procedure Code (V of 1898)---

----S. 526---Transfer of case---Application for---Applicant who was nominated in the direct complaint, had sought transfer of the complaint to another court on the ground that Presiding Officer took him into custody and sent to jail without his fault on account of his refusal to accede to his demand of illegal gratification---Charge had not yet been framed and the matter was pending---No impropriety in the order and the proceedings had been adopted by the court below---Allegation of demanding illegal gratification appeared to be falsified in view of the fact that in a short span of time accused was remanded to Jail and he was extended bail after arrest---Application was dismissed with direction to the Trial Court to proceed with the matter expeditiously and accused was also directed to attend the proceedings before the Trial Court regularly.

J.K. Jarwar for Applicant.

Mehmood A. Qureshi for the Respondent.

Shafi Muhammad Memon, A.A.-G. for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 672 #

2010 P Cr. L J 672

[Karachi]

Before Sajjad Ali Shah, J

SALMAN IRTIZA----Applicant

Versus

AHMED MIAN and another----Respondents

Criminal Miscellaneous Application No.357 and M.A. No.5325 of 2009, decided on 1st February, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.420, 468 & 471---Cheating, forgery and using as genuine a forged document---Application for cancellation of bail---Case under Ss.420 & 471, P.P.C. were bailable, where a person was charged of a bailable offence, such person as a matter of right was entitled to bail---Offence under S.468, P.P.C. which carried punishment for seven years and was non-bailable, but same did not fall within the prohibitory clause of S.497, Cr.P.C. no illegality having been demonstrated in well reasoned bail granting order, application for cancellation of bail, was dismissed by High Court.

Saathi M. Ishaque for Applicant.

Abrar Ali Khichi, Asstt. P.-G., Sindh.

PCrLJ 2010 KARACHI HIGH COURT SINDH 682 #

2010 P Cr. L J 682

[Karachi]

Before Mushir Alam and Aqeel Ahmed Abbasi, JJ

SALMAN QURESHI----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.1193 of 2009, decided on 4th March, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.365-A/34---Abduction for ransom---Bail, grant of---Further inquiry---Accused had not been nominated in the F.I.R. and no direct role of alleged offence had been assigned in the challan---Complainant, alleged abductee or the prosecution witnesses had not identified accused in connection with the crime alleged nor any active role had been assigned, except the alleged use of the car in the crime---Prosecution had not produced any incriminating evidence against accused connecting him with the crime and he appeared to have been involved on the basis of suspicion---Prosecution case which was not free from doubt, required further inquiry---Accused was admitted to bail, in circumstances.

Malik Mushtaq alias Black Prince v. The State 2005 YLR 1728; Mst. Tahmina Asif v. The State PLJ 2008 Federal Shariat Court 100; Dhani Bux alias Dhanoo and 2 others v. The State 2000 PCr.LJ 239; Khan v. The Crown PLD 1955 Sind 65; Sikandar A. Karim v. The State 1995 SCMR 387; Khadim Hussain and another v. The State 1989 PCr.LJ 2432; Muhammad Rafique v. The State 1997 SCMR 412 and Ishaq Masih v. The State 1993 SCMR 1322 ref.

A.Q. Halepota for Applicant.

Ms. Rehana Akhtar, D.P.-G. for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 691 #

2010 P Cr. L J 691

[Karachi]

Before Aqeel Ahmed Abbasi, J

Haji MUHAMMAD ZAKRIA SETH----Applicant

Versus

THE STATE and 2 others----Respondents

Criminal Miscellaneous Application No.323 of 2009, decided on 25th February, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 435, 439, 200 & 173---Penal Code (XLV of 1860), S.395---Dacoity---Disposal of case as "B" class---Principles---Quashing of order---Application for---Scope---During investigation, the case having been found to be false one, challan was submitted before the Judicial Magistrate with final report under S.173, Cr.P.C. with request to dispose of the F.I.R. as "B" class---On such report impugned order was passed by Judicial Magistrate whereby Magistrate, after examining the evidence collected by the Police during inquiry and the statement recorded thereto, approved by the Police for disposal of the case under B' class---Applicant/complainant had filed application under S.561-A, Cr.P.C. for quashing of said order---Validity---Where a case was disposed of under S.173, Cr.P.C. as "B" class by the Judicial Magistrate having valid jurisdiction to proceed with the alleged offence, no revision, in terms of Ss.435, 439, Cr.P.C. was competent and the remedy available to the complainant was to file private complaint under S.200, Cr.P.C. before the same Magistrate containing the same set of allegation as mentioned in the F.I.R., which was finally disposed of in terms of S.173, Cr.P.C. as "B" class by the Police and duly approved by the Magistrate---Said Magistrate on such complaint would proceed with the complaint filed under S.200, Cr.P.C.; and after examining the evidence would pass appropriate order by conducting judicial proceedings without being influenced by his earlier order passed under S.173, Cr.P.C., which was an administrative order judicially made---However, in cases where the orders were passed by Judicial Magistrate concurring with the recommendation by the Police for disposal of the F.I. R. under S.173, Cr.P.C. asB' class, where the alleged offences were triable by the court of session, such orders being without jurisdiction, could be impugned by invoking the inherent jurisdiction of the High Court under S.561-A, Cr.P.C.---Application. filed by the appellant under S.561-A, Cr.P.C. was maintainable as impugned order passed by the Judicial Magistrate, appeared to have been passed without jurisdiction---Alleged offence falling under S.395, P.P.C. being triable by a court of session, impugned order was set aside---Case would be proceeded in the court of session having lawful jurisdiction to proceed with the case in accordance with law.?

Bahadur and another v. The State and another PLD 1985 SC 62; Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others PLD 1994 SC 281; Ashiq Hussain v. Sessions Judge, Lodhran and 3 others PLD 2001 Lahore 271; Arif Ali Khan and another v. The State and 6 others 1993 SCMR 187; Muhammad Sharif and 8 others v. The State and another 1997 SCMR 304; Soofi Abdul Qadir v. The State 2000 PCr.LJ 520 and Ghulam Shabbir v. The State 2000 PCr.LJ 1411 ref.

Muhammad Jameel for Applicant.

Ali Haider Saleem, A.P.-G. along with D.S.P. (Admn.) Muhammad Irfan Zaman, ACLC for the State.

Complainant in person.

PCrLJ 2010 KARACHI HIGH COURT SINDH 700 #

2010 PCr. L J 700

[Karachi]

Before Aqeel Ahmed Abbasi, J

JAWWAD ALI----Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous No.628 of 2010 in Criminal Jail Appeal No.305 of 2009, decided on 15th February, 2010.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss. 324/353/392/34---Attempt to commit qatl-i-amd and robbery---Suspension of sentence---Application for---Accused had requested for suspension of sentence till final disposal of his appeal---Jail roll, revealed that accused had already undergone sentence for 2 years, 2 months and 3 days excluding 1 year, 1 month and 24 days of remission earned by him leaving unexpired portion of 10 months and 3 days---Sentence awarded to accused was suspended till disposal of appeal and he was admitted to bail, in circumstances.

Abdul Hameed v. Abdullah 1999 SCMR 3589 and Nazir Ahmed v. The State 2005, PCr.LJ 657 ref.

Syed Lal Hussain Shah for Applicant.

Imtiaz Ali Jalbani, A.P.-G. for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 704 #

2010 P Cr. L J 704

[Karachi]

Before Muhammad Sadiq Laghari, J

MUHAMMAD NASIR----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.243 of 2006, decided on 7th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.380, 457 & 411---Theft in dwelling house, lurking house-trespass and possessing of stolen property---Bail, grant of---Allegations against accused was only of possessing of stolen articles, which offence fell under S.411, P.P.C. punishable with imprisonment for three years---Embargo put by S.497, Cr.P.C. was not attracted and conclusion of the trial was also not within sight---Accused was granted bail, in circumstances.

Syed Lal Hussain Shah for Applicant.

Ms. Shahida Jatoi for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 708 #

2010 PCr. L J 708

[Karachi]

Before Aqeel Ahmed Abbasi, J

SHAH MURAD----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.53 of 2010, decided on 18th February, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.395---Dacoity---Bail, grant of---Further inquiry---Accused was not named in F.I.R. and his name was included in the challan, which had shown that accused was arrested in some other case---Prosecution witnesses who were shown as eye-witnesses of the alleged offence, while recording their statement before the Trial Court had exonerated accused from the alleged offence, which had made the prosecution case doubtful, which required further inquiry into the matter---In absence of identification of accused by the eye-witnesses, non-mentioning of his name in the F.I.R. and on mere allegation of involvement of accused in some other criminal case, could not disentitle accused for grant of bail---Accused was admitted to bail, in circumstances.

Abdul Latif alias Mushtaq alias Mulla v. The State 2007 PCr.LJ 1918; Muhammad Rafi v. The State 1997 SCMR 412; Tariq Bashir and others v. The State PLD 1995 SC 34; Anwar Saifullah Khan v. The State and 3 others 2001 SCMR 1040; Allah Nawaz v. The State 2005 PCr.LJ 1785; Allah Ditta and others v. The State 1990 SCMR 307 and Iftikhar Ahmad v. The State 1990 SCMR 607 ref.

Hakim Ali Shaikh for Applicant.

Zahoor Shah, A.P.-G. for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 715 #

2010 P Cr. L J 715

[Karachi]

Before Muhammad Moosa K. Leghari, J

SHAHID alias GATOR----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.348 of 2006, decided on 28th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.392/34---Robbery---Bail application---Accused did not press the bail application and instead requested for direction to the Trial Court to proceed with the case expeditiously---State Counsel conceded to the said request of accused and stated that complainant in the case was the only important witness to be examined for the purpose of deciding bail plea---Bail application was dismissed, Trial Court, however was directed to frame the charge and make sure to examine the complainant within specified period.

S. Lal Hussain Shah for Applicant.

Munir A. Khawaja, State Counsel.

PCrLJ 2010 KARACHI HIGH COURT SINDH 717 #

2010 P Cr. L J 717

[Karachi]

Before Munib Akhtar and Muhammad Athar Saeed, JJ

LIAQAT----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.D-666 and M.As. Nos.2203, 2204 of 2009, decided on 4th February, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.365-A---Abduction for ransom---Bail, grant of---Further inquiry---No plausible or valid reason, had at all been given for the delay of one month in registering the F.I.R. in the case---F.I.R., did not state that any weapon was fired or discharged during the alleged abduction---No question, in circumstances would arise of any empties having been recovered in such situation---Narration of the incident as given in the F.I.R., prima facie was unsatisfactory---Details given in F.I.R. with regard to the identification and involvement of accused, prima facie, did not inspire confidence---Matter could only be resolved through a further inquiry and determination of the facts at the trial stage---Authenticity of the allegations against accused, prima facie, did not inspire confidence---Case of further inquiry having been made out, accused was entitled to grant of bail---Accused was admitted to bail, in circumstances.

Qaim Khan and others v. The State 2002 MLD 715; Asif Ali Zardari v. The State 1993 PCr.LJ 781; Shoib Khan v. The State 2002 PCr.LJ 957 and Afzal Khan v. The State 2002 PCr.LJ 154 ref.

Mukesh Kumar G. Karara for Applicant.

Waheed Ali Samtio for the Complainant.

Zulfiqar Ali Jatoi, D.P-G. for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 725 #

2010 P Cr. L J 725

[Karachi]

Before Aqeel Ahmed Abbasi, J

ADEEL----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.28 of 2010, decided on 3rd February, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.353/324/34---Assault or criminal force to deter public servant from discharge of his duty and attempt to qatl-i-amd---Bail, grant of---Further inquiry---On the tentative assessment, case appeared to be a case of ineffective firing whereby no injury whatsoever had been alleged by the prosecution---Private witness cited, had not been produced despite lapse of more than one year of proceedings; nor the pistol allegedly recovered from accused had been sent to Forensic Science Laboratory for examination and report---Investigating Officer during cross-examination had admitted that no empty was recovered from the place of incident, which had made it a case of further inquiry---Accused being entitled to concession of bail, was admitted to bail, in circumstances.

Suleman v. The State 2004 YLR 104; Shahzad Khan v. Asghar Khan and another 2005 YLR 112; Ghullamulah v. The State 2005 YLR 20 rel.

Ms. Erum Khan for Applicant.

Zafar Ahmed Khan Addl. P.-G. for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 733 #

2010 P Cr. L J 733

[Karachi]

Before Shahid Anwar Bajwa, J

RASOOL BUX SHAIKH----Applicant

Versus

THE STATE and another----Respondents

Criminal Miscellaneous Application No.95 and Miscellaneous Application No.2683 of 2008, decided on 24th December, 2009.

Criminal Procedure Code (V of 1898)---

----Ss. 173---Powers and duties of a Magistrate to whom report under S.173, Cr. P. C. was submitted by Police in respect of an offence of which he was not competent to take cognizance---Scope---Magistrate while scrutinizing the report under S.173, Cr.P.C. and passing order thereon, would not act as a court of law and his order was only an administrative order; however, it must be a speaking order giving valid reasons for his conclusion---Fact that order of Magistrate was an administrative order, would not mean that Magistrate could act arbitrarily; it could not be a judicial order, but it must be judicious one---Magistrate had power to disagree with the conclusion recorded in the Police report---If the Magistrate disagreed with the Police report, he had the option of ordering further inquiry---Any other option available to the Magistrate was to take cognizance under S.190, Cr.P.C.---Magistrate could not order cancellation of F.I.R. which was in respect of offence triable by a Court of Session---If there were more than one investigation or part of the investigation was conducted by one Inquiry Officer and thereafter investigation was conducted by another Investigating Officer, the Magistrate must scrutinize the material available with him-In the present case, after the first remand the Magistrate acted as a Post Office, but Sessions Judge sent the same back to him---If Magistrate was not competent to pass an order, he must apply his mind to the material before him and record his opinion and conclusions giving cogent reasons therefor and thereafter he should send the same to the court competent to take cognizance; and it was for that court to decide whether cognizance was to be taken or not---Order of the Magistrate would be in the nature of recommendation or report to the competent court.

PLD 1959 SC 347; Sofia Abdul Qadir v. The State and others, 2000 PCr.LJ 520; Muhammad Ashfaq v. Amir Zaman 2004 SCMR 1924; Badar Maqbool v. The State 2008 MLD 1676; Sardar Ali v. Zafar Iqbal and others 2002 SCMR 63; Habib v. The State 1983 SCMR 370; Ashiq Hussain v. Sessions Judge, Lodhran and 3 others PLD 2001 Lah. 271; Gamen and others v. Muhammad Ali, Naib Tehsildar Halqa Jampur, District Rajanpur and others 1989 PCr.LJ 909; Awal Khan v. The Superintendent of Police, Attock and 13 others, PLD 1995 SC 572; Aftab Ahmed's case PLD 1987 SC 13; Waqarul Haq v. State 1988 SCMR 1428; Falak Sher v. State PLD 1967 SC 425 and Bahadur's case PLD 1985 SC 62 ref.

Muhammad Ashraf Kazi for Applicant.

Rasheed A. Rizvi for Respondents.

Shahzado Saleem Nahiyoon, A.P.-G. for the State.

Date of hearing: 10th December, 2009.

PCrLJ 2010 KARACHI HIGH COURT SINDH 753 #

2010 P Cr. L J 753

[Karachi]

Before Muhammad Tasnim, J

MOWAZ KHAN----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.1258 of 2009, decided on 2nd March, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Qatl-i-amd---Bail, grant of---Further inquiry---Accused was continuously in custody for about 3-1/2 years and trial had not been concluded---Such delay was shocking and scandalous---Complainant was not an eye-witness of the incident---F.I.R., which had been lodged after three hours of the occurrence, revealed that the complainant had not uttered a single word regarding presence of other prosecution witnesses---Accused and co-accused were also implicated, in the case on the basis of belated statement of prosecution witnesses, however said co-accused were not challaned---Prosecution witness had claimed that the deceased was his cousin who was lying dead in the street, but neither he nor his uncle informed the complainant or to the Police that he had heard two fire shots---Accused having been able to make out a case of further inquiry, he was admitted to bail, in circumstances.

Abdul Hameed v. State 2003 MLD 19; Aarab v. State 2005 PCr.LJ 555; Gul Beg v. State 2005 PCr.LJ 147; Panjo v. State 1991 PCr.LJ 247 and Gul Muhammad v. State 1974 PCr.LJ 400 ref.

Fazal-ur-Rehman Awan for Applicant.

Sohail Jabbar, Dy.P.-G. for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 759 #

2010 P Cr. L J 759

[Karachi]

Before Shahid Anwar Bajwa and Aqeel Ahmed Abbasi, JJ

RASOOL BUX----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.D-843 and M.As. Nos.2779 and 2780 of 2009, decided on 6th January, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302(b) & 365---Qatl-i-amd and abduction---No word whatsoever was found in the F.I.R. to the effect that accused fired at the deceased or injured persons and that accused had stolen anything from the house---Nothing was available on record that accused snatched the Holy Qur'an and threw it in the field of sugar cane and that accused had abducted the maternal-uncle of the complainant---Accused was admitted to bail, in circumstances.

Attaullah and 3 others v. The State and another 1999 SCMR 1320 and Faraz Akram v. The State 1999 SCMR 1360 ref.

Zulfiqar Ali Jatoi, D.P.-G. for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 764 #

2010 P Cr. L J 764

[Karachi]

Before Munib Akhtar and Ghulam Sarwar Korai, JJ

MUBARAK and another----Appellants

Versus

THE STATE----Respondent

Criminal Jail Appeal No.D-62 of 2008, heard on 23rd December, 2009.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Sentence, reduction in---Report of the Chemical Examiner, showed that two sealed packets were received by him---Name of accused was mentioned on one packet while name of co-accused on the other---Report of Chemical Examiner, showed that one packet was found to contain black brown rods, while the other contained one black brown slab---Prosecution's own case was that no slabs were found in the bag recovered from co-accused---Not only it was not established that substance recovered from co-accused was at all sent for Chemical Examiner, even the material that was sent, had contradicted the testimony of the excise officers---Material contradiction was found in the contents of the F.I.R. and the report of Chemical Examiner---Reasonable doubt existed as to whether material allegedly recovered from co-accused was at all chemically analyzed in order to determine its composition and whether it came within the scope of Control of Narcotic Substances Act, 1997---Chemical Examiner sent his report to Excise Inspector on 9-5-2006, while said report was signed by the Chemical Examiner on 25-5-2006, after 16 days from the date of dispatch of the same---Such would indicate that when the report was dispatched, it was unsigned and was either signed in the office of Excise Department or in the court---Prosecution, in circumstances had not been able to establish its case against co-accused beyond reasonable doubt---Appeal' of co-accused was accepted and conviction and sentence awarded to him by the Trial Court under impugned judgment, were set aside and he was acquitted---Accused was only responsible for the quantity which was separated for sample for Chemical Examiner and report of which was positive---Quantity of Charas separated for sample was only 1 KG for which the maximum punishment under S.9(b) of the Control of Narcotic Substances Act, 1997 was 7 years---Appeal of accused was dismissed, however his sentence was reduced from life imprisonment to seven years and his fine was also reduced from Rs.50,000 to Rs.15, 000.

Muhammad Nawaz v. The State 2007 MLD 1846 ref.

Sardar Khan Lashari for Appellants.

Fazal Muhammad Khokhar, S.P.P. for the State.

Date of hearing: 23rd December, 2009.

PCrLJ 2010 KARACHI HIGH COURT SINDH 787 #

2010 P Cr. L J 787

[Karachi]

Before Munib Akhtar, J

MUHAMMAD NAWAZ and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.985 of 2009, decided on 12th February, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302 & 324---Qatl-e-amd and attempt to commit qatl-e-amd---Bail, refusal of---Accused persons had been specifically nominated in the F.I.R. and specific role had been assigned to them which resulted in the deceased receiving injuries that proved fatal on the spot---Specific allegations of an ongoing enmity and dispute between accused persons and the complainant and his deceased brother were on record---Discrepancies pointed out by counsel for accused, were of such a nature that a resolution of the same required a deeper appreciation of the case than was warranted or permissible in the circumstances---In any case, the matters that were raised by counsel in terms of the alleged inconsistencies, were such, which could be relevant at the time of trial, when the prosecution would lead its evidence---Matters raised were not of such a nature that could be regarded as relevant for the purpose of a bail application---Accused being unable to make out case for grant of bail to them they were not entitled to the concession of bail---Bail application was dismissed, in circumstances.

Zulifqar Ali Sangi for Applicants.

Sardar Ali Shah, Assistant Prosecutor-General for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 800 #

2010 P Cr. L J 800

[Karachi]

Before Shahid Anwar Bajwa and Ghulam Sarwar Korai, JJ

GULZAR AHMED and another---Applicants

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No. 145 of 2009, decided on 28th January, 2010.

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

----Ss. 9(c) & 14---Criminal Procedure Code (V of 1898), Ss.561-A & 265-K---Possessing narcotics---Application invoking inherent jurisdiction of High Court---Conversion of application into revision petition---Accused persons who were nominated in the F.I.R., filed application under S.265-K, Cr. P. C. before court of Special Judge-Said application having been dismissed and accused being aggrieved by the order of dismissal they moved application under S.561-A, Cr.P.C.---Said application was treated as revision petition and was decided as such---Statement of co-accused given during investigation had not been brought to the notice of the High Court Bench which passed the impugned order and as far as that particular aspect of statement of co-accused was concerned the order of the Bench was an order sub silentio---Held, at such stage neither the Trial Court nor the High Court could say that statement of co-accused should be totally ruled out of consideration---Revision application was dismissed.

Ali Nawaz Ghanghro for Applicants.

Zulifqar Ali Sangi, Public Prosecutor, ANF.

PCrLJ 2010 KARACHI HIGH COURT SINDH 805 #

2010 P Cr. L J 805

[Karachi]

Before Zahid Hamid, J

AZEEM-USH-SHAN-E-HAIDER and 3 others---Applicants

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 57 and M.A. No. 1117 of 2010, decided on 15th March, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. S61-A & 249-A---Penal Code (XLV of 1860), Ss.448/457/149/427/337-A(i)---House-trespass---Inherent powers---Scope---Application under S.249-A, Cr.P.C. was dismissed by the Trial Court and revision filed against order of the Trial Court was also dismissed---Though consent was given verbally by the APG for grant of application under S.249-A, Cr.P.C., but the Trial Court ignored such concession legally due and extended---With consent of the counsel of the parties, High Court ordered that no private prosecutor would conduct the proceedings on behalf of he complainant; but he could only assist the prosecution in presence of DDA---Trial Court was directed to conclude the trial within specified period.

Faqir Muhammad and others v. Ch. Ali Muhammad and others 1992 PCr.LJ 1085; Sh. Muhammad Shafique and others v. Abdul Hamid and another 1992 PCr.LJ 229; Muhammad Ali v. Assistant Commissioner 1987 SCMR 795; 2004 PCr.LJ 1746; AIR 1959 (sic), 447, 1992 SCMR 1436 and PLD 1951 Sindh 29 ref.

Ashraf Hussain Rizvi for Applicant.

Muhammad Iqbal Awan, A.P.G. for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 810 #

2010 P Cr. L J 810

[Karachi]

Before Ghulam Sarwar Korai, J

SABIR HUSSAIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.188 of 2010, decided on 18th March, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.392---Robbery---Bail, grant of---Further inquiry---F.I.R. was registered with the delay of about 3 months and 13 days without any acceptable explanation---Application by accused against complainant and S.H.O. of concerned Police Station disclosing the apprehension of his arrest falsely, was filed three days prior to registration of F.I.R.-Nothing was recovered from the accused---Disclosing the name of accused as one of accused persons by the wife of the complainant in her statement under S.161, Cr.P.C. with the delay of about 10 days from the date of registration of F.I.R. and 3 months and 23 days from the date of alleged incident itself had created serious doubt in the case of the prosecution---Case of accused, in circumstances, was that of further inquiry---Accused was admitted to bail, in circumstances.

Manzoor Hussain N. Larik for Applicant.

Sardar Ali Shah, A.P.G. for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 825 #

2010 P Cr. L J 825

[Karachi]

Before Muhammad Athar Saeed and Munib Akhtar, JJ

Haji INAYAT and another---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeal No.2 of 2009, decided on 9th February, 2010.

(a) Words and phrases---

----`Traffic'---Meaning and connotation of.

(b) Words and phrases---

----'Trafficker'-Meaning and connotation of.

----Ss. 6, 8 & 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---In the present case what could be said at the most against accused persons was that they were transporting charas in the truck---Nothing had been proved that would show that accused were trafficking the charas i.e. engaged in the trade or the buying or selling of charas, which would bring the matter within the meaning of S.8 of Control of Narcotic Substances Act, 1997---When something was in or on board a moving conveyance (such as a truck), it was of course being transported from one place to another which was not enough by itself, question under S.6 of Control of Narcotic Substances Act, 1997 was whether the prohibited drug/substance was being transported by the accused---For purpose of S.6 of Control of Narcotic Substances Act, 1997 and in the specific context of conveyance, accused could be said to have possession of prohibited drugs which were in or on board the conveyance---Accused must have knowledge of thing or substance which he was supposed to be in possession of---If such possession with knowledge was established then it could not be necessary also to establish that accused specifically had knowledge that the thing or substance that he possessed was a prohibited drug---Accused persons were not the owners of truck in question, but they were simply its driver and his helper---Charas itself was not lying in the truck in an open or easily accessible place, but was hidden in a secret compartment inside the body of the truck and that secret compartment was not pointed out or revealed by either of accused persons; it could not be said to have been established beyond reasonable doubt that accused knew or could be regarded as knowing that the charas was in or on board of the truck---Such facts could reasonably raise a suspicion and suspicion was not proof---Even the conclusion that the truck was in "exclusive possession" of accused persons was not accurate---No doubt accused were the only persons in the truck, when it was intercepted by the Excise Officer, but that did not automatically establish that the truck was in their exclusive possession, when the charas was placed in the secret compartment---Reasonable doubt existed as to whether accused could be regarded as having possession of the charas within the meaning of S.6 of the Control of Narcotic Substances Act, 1997 and whether accused could be regarded as transporting the charas within the meaning of said section---Accused, in circumstances, stood acquitted, impugned judgment was set aside and conviction and sentence of accused were quashed.

Master Sameer and others v. Fazal Muhammad and another 2008 MLD 1709; Jalal Khan v. The State 2008 SCMR 815; Ghulam Murtaza and another v. The State PLD 2009 Lah. 362; Nazar Hussain and others v. The State 2007 YLR 1601; Zahoor Awan and another v. The State 1997 SCMR 543; Shah Wali and another v. The State PLD 1993 SC 32; Ghulam Qadir v. The State PLD 2006 SC 61; Muhammad Nawaz v. The State 2007 MLD 1846 and Muhammad Hashim v. The State PLD 2004 SC 856 ref.

Ghulam Ali Rind for Appellants.

Fazal Muhammad Khokhar, S.P.P. for the State.

Date of hearing: 29th October, 2009.

PCrLJ 2010 KARACHI HIGH COURT SINDH 891 #

2010 P Cr. L J 891

[Karachi]

Before Shahid Anwar Bajwa, J

SHARAFUDDIN KHASHKELI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.S-7 of 2006, heard on 27th January, 2010.

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

----Ss. 5(i)(c) & 5(2)---Dishonest or fraudulent misappropriation of property---Appreciation of evidence---Applicability and scope of S(i)(c) & (2), Prevention of Corruption Act, 1947---Section 5(c) of Prevention of Corruption Act, 1947 was applicable where a public servant dishonestly or fraudulently misappropriated or otherwise converted for his own use any property entrusted to him or under his control as a public servant; or allowed any other person to do so---Such act on the part of said public servant would be criminal misconduct punishable under S.5(2) of Prevention of Corruption Act, 1947---In the present case, there were no allegations in the charge regarding any . misappropriation or conversion of any State property---Section 5(i)(c) of Prevention of Corruption Act, 1947 under which accused had been charged, in circumstances was not attracted to the facts of the case---Section 5(2) of Prevention of Corruption Act, 1947 prescribed punishment for criminal misconduct---Since S.5(i)(c) of Prevention of Corruption Act, 1947 was not attracted to the allegations against accused, S.5(2) of said Act, could not have been brought into play---Prosecution, in circumstances had failed to establish guilt of accused beyond any shadow of reasonable doubt---Impugned judgment of the court below was set aside, in circumstances.

Asif Ali Abdul Razzak Soomro for Appellant.

Naimatullah Bhurgri, State Counsel.

Date of hearing: 27th January, 2010.

PCrLJ 2010 KARACHI HIGH COURT SINDH 907 #

2010 P Cr. L J 907

[Karachi]

Before Sajjad Ali Shah, J

MUHAMMAD IBRAHIM and another----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.1062 of 2009, decided on 1st February, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/109/34---Qatl-e-amd---Bail, refusal of-Delay of 4-1/2 hours in lodging the F.I.R. was fully explained---Plea of alibi as raised by accused at bail stage would not entitle accused to the concession of bail on such count---Statements of the witnesses had suggested that both the incidents being result of honour killing as accused persons were doubting illegitimate relation between the victim and their sister---Accused had also not produced anything to show his absence from the place of wardat where deceased was killed---Sufficient material was available with the prosecution to connect accused persons with the commission of the crime---Bail application was dismissed, in circumstances.

M.M. Tariq for Applicants.

Raja Hassan Nawaz for the Complainant.

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

PCrLJ 2010 KARACHI HIGH COURT SINDH 914 #

2010 P Cr. L J 914

[Karachi]

Before Ahmed Ali M. Shaikh, J

MUHAMMAD ASLAM----Applicant

Versus

THE STATE-Respondent

Criminal Bail Application No.1094 of 2009, decided on 18th January, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302134---Qatl-e-amd---Bail, refusal of---F.I.R. was promptly lodged---Complainant as well as eye-witnesses had implicated accused in the commission of offence---Mala fide on the part of the Investigating Officer was found as name of accused was placed in column No.2 of the challan, but Magistrate who had taken cognizance had joined him as accused and accused did not impugn the said order of the Magistrate---Alleged inconsistency between the ocular version and the medical evidence, could not be taken into consideration at bail stage---Accused could not establish that case was of two versions---Contention of counsel for accused that there was general allegation against accused and no specific role was attributed to accused, could not be determined at bail stage as deeper appreciation of evidence was not permissible at the bail stage which could only be done at the trial---Prima facie case existed against accused which had disentitled him to the concession of bail---Bail application meriting no consideration, same was dismissed accordingly.

2008 SCMR 182; Cr. Petition No.56/K-2009; 1984 SCMR 521; 1986 SCMR 1978; 1987 SCMR 485; 1994 SCMR 1728; 2001 PCr.LJ 1692; 1997 MLD 1691; 2002 SCMR 629; PLD 1995 SC 34; PLD 1996 SC 211; Abdul Hayee's case 1996 SCMR 555; Khalda Bibi v. Nadeem Baig PLD 2009 SC 440 and Haji Gulu Khan v. Gul Daraz Khan and another 1995 SCMR 1765 ref.

Mehmood A. Qureshi for Applicant.

Abdullah Rajput, A.P.-G. for the State.

Complainant Deedar Ali in person.

PCrLJ 2010 KARACHI HIGH COURT SINDH 921 #

2010 P Cr. L J 921

[Karachi]

Before Faisal Arab and Bhajandas Tejwani, JJ

MUHAMMAD HANIF S. KALIA----Applicant

Versus

THE STATE through F.I.A.----Respondent

Criminal Bail Application No.1069 of 2009, decided on 19th March, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.420/467/471/477-A/34---Cheating, forgery, falsification of account---Bail, refusal of---Medical grounds---Bail was sought on the ground that accused was a heart patient and in circumstances was a sick man within the meaning of first proviso of S.497(1), Cr. P. C. ---Validity---In order to demonstrate that accused was heart patient, various documents had been brought on record---Medical Board after examination diagnosed angina and advised that a CT Coronary Angiogram be performed on accused in order to assess his heart condition---With the consent of counsel for the parties, High Court directed that the procedure of CT Coronary Angiogram be performed, but despite such directions of the court, accused did not get the procedure CT Coronary Angiogram performed on him---Deliberate avoidance was on the part of accused who was pressing for grant of bail on medical ground to undertake CT Coronary Angiogram---Utter reluctance of accused to undergo CT Coronary Angiogram had led the High Court to believe that accused did not want that his real heart condition was revealed---In view of such avoidance of accused, medical ground on the basis of which accused had sought bail from the High Court, was disbelieved and bail application was dismissed.

Mawasi Khan v. The State 1969 SCMR 289; Malik Muhammad Yosufullah Khan v. The State PLD 1995 SC 58; Zakhim Khan Masood v. The State 1998 SCMR 1065; Mian Manzoor Ahmad Watto v. The State 2000 SCMR 212; Ch. Zulfiqar Ali v. The State PLD 2002 SC 546; Muhammad Saeed Mehdi v. The State 2002 SCMR 282 and Farhan Iqbal v. The State 1997 PCr.LJ 1860 ref.

Rasheed Ahmed Razvi and Haq Nawaz Talpur for Applicant.

Abrar Hasan for the Complainant/State Bank.

Shahab Sarki, Standing Counsel for the State.

Date of hearing: 22nd February, 2010.

PCrLJ 2010 KARACHI HIGH COURT SINDH 940 #

2010 P Cr. L J 940

[Karachi]

Before Munib Akhtar, J

Syed ZAHID HUSSAIN----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.866 of 2009, decided on 4th February, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9 & 21---Possessing narcotics---Ball, refusal of---Prima facie, conditions laid down in subsection (1) of S.21 of Control of Narcotic Substances Act, 1997 were clearly made out---In the present case the secret information indicated that there was an imminent movement of narcotic substances and prima facie, in such circumstances the complainant could and did form an opinion that imminent action was necessary; and that any delay could enable the accused to either escape or otherwise deal with the narcotic substances in such a manner as would take them beyond the purview of the law enforcement agencies---Since there was no allegation of any enmity between the Anti Narcotic Force party which conducted the raid and searched the premises where accused was found with a large quantity of narcotics, there did not appear prima facie to be any basis for the claim put forward by accused that the drugs were foisted on accused and his brother---Prosecution had succeeded in making out a reasonable case which prima facie connected accused with the possession of the huge quantity of narcotic substances, which had constituted an offence under S.6 of Control of Narcotic Substances Act, 1997---Accused having failed to make out a case for grant of bail, his bail application was dismissed.

Muhammad Bilal v. The State 2009 MLD 335; Said Muhammad v. The State 2008 MLD 1275 and Abdur Rasool v. The State 2009 PCr.LJ 558 ref.

Qurban Ali Malano for Applicant.

Zulfiqar Ali Sangi, Special Public Prosecutor, A.N.F. for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 948 #

2010 P Cr. L J 948

[Karachi]

Before Muhammad Tasnim, J

MUHAMMAD FAROOQUE----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.135 of 2010, decided on 18th March, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.406, 409, 420, 460, 471, 477-A & 109/34---Prevention of Corruption Act (II of 1947), S.5(2)--Criminal breach of trust, cheating, forgery---Bail, grant of---Further inquiry---Name of accused was not mentioned in F.I.R. and it was only on the basis of the statements of witnesses that accused was cited as one of accused in the interim challan---Even in the interim challan no role had been assigned to the accused---Case being of further inquiry, accused was granted bail.

Ms. Ismat Mehdi for Applicant.

Rizwan Ahmed Dhodani, Standing Counsel for the State along with I.O., Inspector Gul Sher Mughari, F.I.A.

PCrLJ 2010 KARACHI HIGH COURT SINDH 952 #

2010 P Cr. L J 952

[Karachi]

Before Muhammad Tasnim, J

MUHAMMAD KHAN----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.1105 of 2009, decided on 26th March, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail, grant of---Further inquiry---Complainant being not an eye-witness of the incident, his evidence could not be of more than academic help--Only two material witnesses who could be of any help in the case, were absconders and one of them was also booked in the murder case---Many submissions had been made by the counsel for accused, but same could not be discussed for the reason that in bail matters deeper appreciation of the evidence was not permissible---Case of accused appeared to be that of further inquiry and hardship as the two material witnesses were not traceable and accused was in custody since 13-12-2008---On the last fifteen dates of hearing no witness had been produced by the prosecution---Accused was admitted to bail, in circumstances.

Mehmood Ahmed Khan and others v. The State 1995 SCMR 127; Khalid Javed Gillani v. The State PLD 1978 SC 256; Muhammad Sadiq and another v. The State PLD 1960 SC 223; Syed Saeed Muhammad Shah v. The State 1993 SCMR 550; Manzoor and others v. The State PLD 1972 SC 81; Amir v. The State PLD 1972 SC 277; Rehmat Ali and others v. The State 1979 SCMR 30 and Allah Bux v. Nazar Hussain Shah 1979 SCMR 137 rel.

Muhammad Ashraf Kazi for Applicant.

M.A. Qureshi, A.P.-G. for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 957 #

2010 P Cr. L J 957

[Karachi]

Before Aqeel Ahmad Abbasi, J

MUHAMMAD SALAM and another----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.1331 of 2009, decided on 15th February, 2010.

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

----S.497---Penal Code (XLV of 1860), S.392/34---Robbery---Bail, refusal of---Accused, earlier the servant of the complainant's family, had allegedly committed an armed robbery along with his co-accused and deprived the complainant and his family of their valuable articles worth millions of rupees---Looted articles had been recovered on the pointation of accused---Prosecution witnesses had identified the accused in identification parade with specific role assigned to him---Accused, prima facie, was connected with the commission of the offence---Trial of the accused was under progress---Bail was refused to accused in circumstances.

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

----S.497---Penal Code (XLV of 1860), S.392/34-Robbery-Bail, grant of---Accused was neither nominated in the F.I.R., nor any role had been assigned to him therein---Investigating Officer in his report had absolved the accused of all the charges---Accused was not identified in the identification parade by the prosecution witnesses---Bail was granted to accused in circumstances.

Aurang Zeb for Applicants.

Zafar Ahmed Khan, Addl. P.-G. for Respondent.

Sher Muhammad son of the Complainant is present.

PCrLJ 2010 KARACHI HIGH COURT SINDH 964 #

2010 P Cr. L J 964

[Karachi]

Before Aqeel Ahmed Abbasi, J

NAIMAT KHAN----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.1106 of 2009, decided on 15th February, 2010.

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

----S.497---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail, grant of---Case was of counter version where out of the same incident co-accused had received a fire-arm injury and survived, whereas the deceased after having received the fire-arm injury had lost his life---Nothing was recovered from the accused except some cash and a licence of a pistol---Accused was of advanced age---Version of accused party claiming self defence could not be ruled out at present stage---Truth would only be crystallized after recording of evidence and it was yet to be determined as to which party had acted aggressively---Till then the case against accused' would need further inquiry---Accused was admitted to bail in circumstances.

Ali Akbar v. Rehan and others (Cr. Petition No.90-K of 2004; Muhammad Ashraf v. The State 1981 PCr.LJ 704; Ghulam Nabi and others v. The State 1984 MLD 1317; Nadir and 2 others v. The State 1985 P.Cr.LJ 247; The State v. Khair-ur-Rehman PLD 1960 (W.P.) Peshawar 50; Sardar Ali v. The Crown PLD 1953 FC 93; Aludo Alias Ali Bux v. The State 1976 P.Cr.LJ 329; Noor Illahi v. The State PLD 1966 SC 708; Ali Akbar v. Rehan and others Cr. Petition No.90-K of 2004; Haji Nawaz Ali Bukak and another v. The State Cr. Bail Application No.844 of 2008 and Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845 ref.

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

----S.497---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail ---Case of counter-versions---Further inquiry---Practice and procedure--Cases of counter-versions arising from the same incident, one given by the complainant in 'the F.I.R. and the other given by the opposite party, require further inquiry as contemplated under S.497(2), Cr.P.C.---Bail in such cases is normally granted on the ground of further inquiry, because it is yet to be decided by trial Court after recording and appraising the evidence as to which of the versions is correct, and where plea of private defence is taken, then which party is aggressor and which party is aggressed.

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

Muhammad Ashraf Kazi for Applicant.

Sardaruddin Qureshi for the Complainant.

Ms. Seema Zaidi, Asstt. P.-G. for Respondent.

PCrLJ 2010 KARACHI HIGH COURT SINDH 979 #

2010 P Cr. L J 979

[Karachi]

Before Maqbool Baqar and Tufail H. Ebrahim, JJ

NABI BUX alias NABOO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. D-50 and M.A. No. 3099 of 2009, decided on 3rd February, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.365-A, 341 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Kidnapping and wrongful restraint---Bail, grant of---Further inquiry---Complainant, the alleged abductee and so also the sole eye-witnesses of the alleged incident had categorically stated than accused was not involved in the alleged abduction, which though was inconsistent with their statements under S.161, Cr.P.C., however, in view of contradictory statements, the prosecution case required further inquiry---Accused was admitted to bail, in circumstances.

Javed Ahmed v. The State 2002 MLD 400 ref.

Syed Madad Ali Shah for Applicant.

Shahid Ahmed Shaikh, A.P.G., Sindh for the State.

2010 P Cr. L J 1011

[Karachi]

Before Shahid Anwar Bajwa, J

MUHAMMAD BABER SINDHU----Applicant

Versus

THE STATE----Respondent

Criminal Revision Application No.146 of 2008, decided on 25th March, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 164 & 364---Judicial confession and extra judicial confession---Recording and corroboration of---Points to be followed in respect of confessional statement: Judicial confession, must be before an Authority competent to take such confession; extra judicial confession, was not to be taken as confession, but just statement of witness that he heard accused saying that he had committed the offence; such evidence must be corroborated by other evidence and circumstances of the case; judicial confession, must be recorded promptly and as soon as possible; and if there was delay in recording judicial confession, there must be given reasons for such delay; delay in recording confession could be relevant for determining its voluntariness, however, delay would not render confession involuntary; while recording extra judicial confession, provisions of Ss.164 & 364, Cr.P.C. must be strictly followed, because those provisions were mandatory; violation of provisions of S.364, Cr.P.C. was not a mere irregularity which could be cured; it was an illegality which would go to the root of the confession and destroy its evidentiary value; conditions for accepting confession as admissible against the person making it, were much more severe and strict in Shariah; when an accused had given an account of incident in judicial confession his truth was not to be doubted; and if such statement was proved to be correct in all its parts, such solitary piece of evidence could be used against accused without any further corroboration; there was no basic difference between a judicial confession and a retracted judicial confession, if the element of truth was not missing from them; if a confession was retracted, the court must consider the reason for retraction of the confession, to find out the truth in such reasons and in such a confession; a retracted confession, either judicial or extra judicial, if it was found truthful and confidence-inspiring and also qualified the test of voluntariness, could be used for conviction without looking for any other sort of corroboration; a retracted confession could be legally taken against the maker, if the confession was found true and voluntary and could in certain situation be used as solitary evidence for conviction and it was not certain that in every case court must look for corroboration of facts stated in a retracted confession.

2006 SCMR 231; Mst. Zaitoon v. The State, 1979, PCr.LJ 279; Muhammad Naseer v. The State PLD 1988 Federal Shariat Court 58; Arif Nawaz Khan and 3 others v. The State PLD 1991 Federal Shariat Court 53; Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373; Muhammad Baqa alias Baqir v. The State 2000 PCr.LJ 465; The State through A.G., N.-W.F.P, Peshawar v. Waqar Ahmad 1992 SCMR 950; Ghulam Qadir and others v. The State 2007 SCMR 782, Manjeet Singh v. The State PLD 2006 SC 30 and Nazeer alias Wazeer v. The State PLD 2007 SC 202 ref.

S. Ali Bin Adam Jaferi for Applicant.

Saleem Akhtar, Addl. Prosecutor General for the State.

Dates of hearing: 5th and 12th November, 2009.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1039 #

2010 P Cr. L J 1039

[Karachi]

Before Bhajin Das Tejwani, J

M. NAEEM----Applicant

Versus

THE STATE through Prosecutor-General, Province of Sindh----Respondent

Criminal Miscellaneous Application No.53 and M.A. No.1461 of 2010, decided on 23rd April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.344, 380 & 504/34---Wrongful confinement and theft---Jurisdiction of High Court under S.561-A, Cr. P. C. ---Scope and extent---Quashing of F. I. R. and proceedings---Application for---Litigant could not be non-suited on technical score, in case on merits he was entitled for the relief---Provisions of S.561-A, Cr.P.C. had given inherent jurisdiction to High Court to pass any order to secure the ends of justice and prevent the abuse of process of the court---High Court could take notice of subsequent events or progress of the matter that if the proceedings based on same F.I.R. were abuse of process of the court, same discretion could be exercised by avoiding technicality---Matrimonial dispute existed between the parties during which the complainant had also divorced her wife, who had gone to her parents along with children with accused who was brother of the wife of the complainant---Complainant had resorted to set the criminal law into motion to settle the civil and matrimonial dispute during which he had divorced his wife---Proceedings initiated against the applicant was nothing but an annoyance of complainant to humiliate the family of his in-laws--Proceedings pending against applicant before the Trial Court were abuse of the process of court and not sustainable---Proceedings were quashed, in circumstances.

Saathi M. Ishque for Applicant.

Ali Gohar Soomro for Complainant.

Muhammad Iqbal Awan, A.P.-G. for the State.

Khuda Bux, Investigating Officer.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1046 #

2010 P Cr. L J 1046

[Karachi]

Before Munib Akhtar, J

Mst. KHATOON----Petitioner

Versus

MUHAMMAD SALEEM and another----Respondents

Criminal Revision No.S-72 of 2009, decided on 11th February, 2010.

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

----S. 3---Illegal dispossession---Ingredients or elements of--Ingredients or elements of S.3(1) of Illegal Dispossession Act, 2005 were that accused entered into or upon any property without having any lawful authority to do so and with intention of dispossession of or grabbing, controlling or occupying the property from the owner or occupier thereof.

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

----S. 3---Illegal dispossession---Proof of---Applicant who claimed to be owner of house in question had alleged that on request of the respondent, who was brother of her husband, she gave half portion of her house for a limited period as his house was under construction, but later on he refused to vacate the portion of her house and he dispossessed her---Trial Court on filing complaint by the applicant concluded that as the applicant had herself willingly granted permission to the respondent to use half portion of her house, had allowed him entry and access to the same; and that no offence under S.3 of Illegal Dispossession Act, 2005 was made out and her complaint was dismissed---Respondent had entered the house after having been permitted to do so by the applicant, the owner/occupier of the house in question, in other words, respondent did have authority to enter upon the property---House in question comprised one composite unit and was not divided into and could not be regarded as comprising two or more distinct parts---By granting permission to the respondent to enter the house and use one room and other facilities therein, the applicant in effect gave him permission to enter upon the entire property---Close family relationship between the applicant and respondent must also be kept in mind and it could not be said that by not limiting himself to the portion made over to him, but also entering upon the remaining portion of the house, respondent had committed an offence under S.3 of Illegal Dispossession Act, 2005---In allowing the respondent to enter upon a part of the house, applicant, in effect accorded him permission to enter upon the whole of the property---Offence under S.3 of Illegal Dispossession Act, 2005 could not be said to have been made out in circumstances---Trial Court had rightly concluded that no offence had been made out under S.3 of Illegal Dispossession Act, 2005---Findings of the Trial Court, could not be interfered with by the High Court.

Satan Kumar v. Muhammad Yousif 2009 PCr.LJ 1186 ref.

Qurban Ali Malano for Applicant.

Muhammad Saleh Bhutto for Respondent No.1.

Shyam Lal, Asstt. P.-G. for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1060 #

2010 P Cr. L J 1060

[Karachi]

Before Maqbool Baqar, J

SAEEN BUX----Applicant

Versus

CIVIL JUDGE AND JUDICIAL MAGISTRATE, MATIARI and 9 others----Respondents

Criminal Miscellaneous Application No.231 of 2008, decided on 1st March, 2010.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.448 & 506---House trespassing and criminal intimidation---F.I.R. was recorded against accused persons alleging that they barged into the house of the complainant armed with fire-arm and hatchets; and threatened the complainant and his family with dire consequences---Complainant also alleged that on way back accused persons took away buffaloes and goats and also damaged the electricity meter of the complainant---Investigating Officer, in his report under S.173, Cr.P.C. had disclosed that both the witnesses of the complainant had instead supporting the complainant, had stated that allegations of advancing threats and taking away the buffaloes and goats of the complainant and also causing damage to the electricity meter were false and Investigating Officer recommended the disposal of the case in `B' class---Complainant in his application had submitted that the report of Investigating Officer was false---Impugned order was set aside with direction to Investigating Officer to carry out re-investigation after recording the statements of the said two witnesses.

Abdul Sattar Sarki for Applicant.

Muhammad Iqbal Kaihoro, Addl. P.-G. along with A.S.-I. Muhammad Saleem Shaikh.

Wali Muhammad Khoso for Respondents Nos.3 to 9.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1062 #

2010 P Cr. L J 1062

[Karachi]

Before Aqeel Ahmed Abbasi, J

ALI GHULAM and another----Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.781 of 2009, decided on 13th April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.392, 459 & 34---Robbery and lurking house-trespassing---Bail, grant of---Further inquiry---Accused persons had made out a prima facie case for grant of bail as neither any direct role had been assigned nor identification parade had been made---No recovery had been effected and there was also delay of about six days in lodging of F.I.R.---Complainant himself had sworn affidavit of no objection---Case of prosecution, in circumstances could not be termed as free from doubts and required further inquiry---Accused were admitted to bail, in circumstances.

Shammon alias Samandar v. The State 2007 MLD 294; Ali Gul v. The State 2007 PCr.LJ 1907; Badaruddin and 2 others v. The State 2007 PCr.LJ 502 and Faisal Khan v. The State 2007 YLR 2613 ref.

Syed Javed I. Bukhari for Applicants.

Shahid Shaikh, A.P.-G. for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1078 #

2010 P Cr. L J 1078

[Karachi]

Before Muhammad Tasnim, J

MUHAMMAD ATIQUE KHAN----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.273 of 2010, decided on 29th March, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.406, 409, 420, 471, 477-A & 109/34---Prevention of Corruption Act (II of 1947), S.S(2)---Criminal breach of trust, cheating, falsification of accounts and corruption---Bail, refusal of---Accused, no doubt stood transferred from the relevant department but date on which the rates of tender were enhanced and the menu was revised, he was very much there and participated in the meeting---Accused, in circumstances, was prima facie, connected with the charge---Rule of consistency did not apply in the case of accused as he was not similarly placed in the case to that of co-accused who was granted bail---Name of co-accused did not appear in the F.I. R., but his name was included on the basis of statements under S.161, Cr.P.C. made by two employees of the mill---Accused had participated in the said meeting, whereas co-accused had not taken any part in any meeting with regard to floating of tender---Accused being not entitled to concession of bail, his bail application was dismissed.

Saeed Ahmed v. The State 1995 SCMR 1970; Muhammad Afzal alias Bodi v. The State 1979 SCMR 9; Abdul Salam v. The State 1980 SCMR 142; Shahzad v. The State 1996 PCr.LJ 978; Muhammad Aslam and another v. The State 1996 MLD 1870; Haji Wali Muhammad v. The State 1996 SCMR 233; Mian Abdul Manan v. The State 2005 PCr.LJ 89; Abdul Rashid v. The State 1996 PCr.LJ 1558; Muhammad Arif Naveed v. The State 2007 YLR 2987; Raza Muhammad Bhutto and another v. The State 2007 PCr.LJ 1979; Muhammad Imran Khalid v. The State 2005 PCr.LJ 1069; Riaz Ahmad v. The State 2007 MLD 407; Tariq Bashir and others v. The State PLD 1995 SC 34 and Sabir Hussain v. State 1999 PCr.LJ 958 ref.

Ms. Masooda Qureshi for Applicant.

Shahab Sarki, Standing Counsel along with Inspector Gulsher Mughari, F.I.A. Crime Circle, Karachi for Respondent.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1087 #

2010 P Cr. L J 1087

[Karachi]

Before Imam Bux Baloch, J

ALI KHAN KALHORO----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.S-740 of 2009, decided on 1st March, 2010.

Criminal Procedure Code (V of 1898---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possessing narcotics---Bail, grant of---"Charas" weighing 1100 grams in the shape of different pieces was allegedly recovered from the possession of accused, out of which 200 grams were separated for chemical analysis---F.I.R. did not disclose whether the sample was taken from each piece of narcotic substance or not---Even the shape, size and number of pieces of the alleged contraband were not disclosed in the F.I.R.---Under the law even at bail stage amount of narcotic taken as sample and not the entire recovered lot, would be taken into consideration---Punishment under section 9 of the Control of Narcotic Substances Act, 1997, having been provided on the basis of quantum of recovered narcotics, prosecution was obliged to prove the entire recovered lot as narcotics---Slight change in the quantity of substance could affect very seriously the life of human being---Allegation of prosecution in respect of recovery of a specific substance, therefore, was to be checked very strictly and to be proved beyond doubt---Case against accused at this stage apparently fell under section 9(b) of the Control of Narcotic Substances Act, 1997 and his guilt needed further inquiry, as the entire recovered substance was yet to be proved as narcotic at the trial---Accused was admitted to bail in circumstances.

Muhammad Hashim v. The State PLD 2004 SC 856 and Nadeem v. The State 2007 MLD 1092 ref.

Faiz Muhammad Larik for Appellant.

Ali Raza Pathan for the State.

2010 P Cr. L J 1128

[Karachi]

Before Munib Akhtar, J

GUL HASSAN and 9 others----Applicants

Versus

ZAHOOR AHMED and another----Respondents

Criminal Miscellaneous Application No.S-259 and M.A. No.2854 of 2009, decided on 24th December, 2009.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 4, 5 & 9---Criminal Procedure Code (V of 1898), Ss.561-A & 202---Illegal dispossession, complaint against---Quashing of order, application for---Respondent/complainant filed complaint that applicants/accused had unlawfully dispossessed the complainant and his co-sharers from the property and had illegally grabbed the same---Trial Court, on filing said complaint, called for reports from the concerned S.H.O. and Mukhtiarkar and court upon receipt of said reports, found that prima facie a case had been made out against accused persons under Ss.3 & 4 of Illegal Dispossession Act, 2005 and ordered notices to be issued to accused persons to appear before the court and furnish security---Said order of the Trial Court had been impugned by accused persons in their . applications under S.561-A, Cr.P.C.---Counsel for accused persons had contended that impugned order was unlawful inasmuch as the mandatory provisions of Illegal Dispossession Act, 2005 had not been complied with; in particular, he submitted that it was a mandatory requirement that investigation be ordered by the court and carried out by the concerned S.H.O. in terms of S.5(1) of Illegal Dispossession Act, 2005, which having not been done, report of S.H.O. was not an investigation for the purposes and within the meaning of S.5(1) of Illegal Dispossession Act, 2005---Section 9 of Illegal Dispossession Act, 2005 was a mandatory provision which required the court exercising jurisdiction under the Act to follow the procedure laid down in the Cr.P.C. in all matters---Section 4(1) of Illegal Dispossession Act, 2005 contained a non obstante clause and expressly provided that an offence under S.3 of the Act, would be triable by the Court of Session on complaint which had conferred an original jurisdiction on the Court of Session---Provisions of S.5(1) of Illegal Dispossession Act, 2005 was an enabling provision, which conferred a power on the court, if it so deemed appropriate, direct S.H.O. concerned to carry out an investigation and make a report thereon to the court---When 5.202, Cr.P.C. and S.5(1) of Illegal Dispossession Act, 2005 were considered and read together, legislative intent behind S.5(1) of the Act was clear---Both said provisions of law were directory and not mandatory---Scope of S.202, Cr.P.C. was somewhat limited, even though it conferred a 'specific power on the Court of Session to have the investigation carried out by a Magistrate---Once the court had issued process to accused then S.5(2) of Illegal Dispossession Act, 2005 would require that court proceed expeditiously with the trial---Section 5(1) of Illegal Dispossession Act, 2005 was directory in nature and it was not mandatory for the court to have an investigation conducted under that provision, before proceedings further in the matter---Impugned order of the Trial Court, in circumstances did not suffer any illegality on that count.

Zahoor Ahmed v. Abdul Aziz and others 2007 PCr.LJ 1881; Rahim Tahir v. Ahmed Jan and others 2007 PCr.LJ 1920; Rana Shafique Ahmed v. Additional Sessions Judge Lahore 2008 YLR 2259 and Bashir Ahmed v. Zafar-ul-Islam and others PLD 2004 SC 298 ref.

Ghulam Shabbir Shar for Applicants.

Mukesh Kumar G. Karara for Respondent No.1.

2010 P Cr. L J 1172

[Karachi]

Before Abdul Rasheed Kalwar, J

MOUJ ALI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.163 of 2006, decided on 17th October, 2008.

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

----S. 17(3)---Penal Code (XLV of 1860), Ss.337-A(iii), 337-L(ii) & 392---Haraabah and robbery---Appreciation of evidence---Benefit of doubt---F.I.R. and statement of complainant was based on hearsay---Neither the complainant was an eye-witness nor his statement was relevant for the purpose of assessing ocular account of the incident--F.I.R. had been lodged after 3 months of occurrence without any plausible explanation---Despite the fact that the F.I.R. was not direct narration of the injured, it had not specifically mentioned that accused had inflicted butt blows to the injured---Injured prosecution witness in his examination-in-chief had not specifically stated about causing injuries to him by accused---Injured witness though had previous acquaintance with the accused but he had not levelled allegation of causing injuries to him by the accused---Both the injured witnesses had narrated the incident in different manner with different particulars of the transaction; they were not consistent about the number of assailants and the role played by each culprit---Place of vardat had been inspected about 3 months and 25 days after the incident and no incriminating evidence was collected from there---Statement of medico-legal officer and the contents of medico-legal certificate would not ipso facto establish guilt against accused in absence of confidence-inspiring evidence sufficiently connecting accused with the commission of offence---None of the prosecution witnesses had ever said that accused had robbed articles and money from them---Co-accused had been acquitted on the same set of evidence---Incident had taken place near Dargah and in presence of persons at Dargah, no independent witness had been examined by the prosecution to establish the offence---Smell of professional jealousy between accused and injured was also traceable from the evidence---Commission of offence by accused was doubtful and by extending benefit of doubt, impugned judgment and sentence awarded to accused by the Trial Court, was set aside, in circumstances.

Jawaid I. Bukhari for Appellant.

Bilawal Ali Ghunio, State Counsel.

Date of hearing: 15th October, 2008.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1197 #

2010 P Cr. L J 1197

[Karachi]

Before Muhammad Tasnim, J

Brig. (R) ABDUL QAYUM---Appellant

Versus

THE STATE---Respondent

Criminal Bail Application No. 252 of 2010, decided on 18th May, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.406/409/420/468/477-A/109/34---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust, cheating, forgery, falsification of accounts and corruption---Bail, refusal of---Accused had taken part in the meeting wherein decision in principle was taken with regard to scraping of tenders already floated which were to be opened---Tenders already floated were recalled in the said meeting and fresh tenders for new date were decided with revised menu which enhanced the costs of .tenders---Accused had headed the meeting along with other officials of organization on the one side and the representative of Collective Bargaining Agent of Trade Union on the other side---Said meeting was also attended by numbers of contractors who were interested in the tender---Decision taken in the said meeting was to the effect that recipe could be completely removed and assessment criteria be revised---Bail application was to be decided on tentative assessment only and not by a deeper appreciation of the facts or law---No doubt an accused was entitled to the benefit of doubt at the bail stage also, but doubt should be seen to exist on a cursory reading of the evidence or law which could be discerned by a tentative assessment of the material on record---Applying said rule to the case of accused, request of counsel for accused to appreciate the documentary evidence on record which had been placed by him during the course of arguments, could not be acceded to at bail stage---Facts of the case in other bail application filed by co-accused, were distinguishable to the facts of case of accused as co-accused had neither participated in the meeting nor he was a member of the tender Committee---Statements of witnesses recorded under S.161, Cr.P.C. had clearly shown that Committee in an unequivocal terms had implicated accused with the commission of offence---Bail application filed by accused was dismissed, in circumstances.

Haji Muhammad Nazir and others v. the State 2008 SCMR 807; Muzaffar Ayaz Abid Baloch v. National Accountability Bureau, Sindh 2008 SCMR 1316; Muzammil Niazi and others v. The State PLD 2003 Kar. 526; Muhammad Hussain Kakar and another v. The State PLD 1999 Quetta 95; Akhtar Hassan Ansari v. The State 2003 PCr.LJ 473; Jamil A. Durrani v. The State PLD 2003 Kar. 393; Dr. Allah Nawaz A. Qazi v. The State 2008 SCMR 196; Abdul Qadir v. Federation of Pakistan and others 2002 SCMR 1478; Ramzan and others v. The State 2008 YLR 2086; Saeed Ahmed v. The State 1996 SCMR 1132; Abdul Wahid Bandkukda and others v. The State 2008 YLR 767; Federation of Pakistan v. Muhammad Shafi Muhammadi, Advocate and others 1994 SCMR 932; Gulberg and others v. The State PLD 1964 (WP) Kar. 275; Ghulam Qadir and others v. The State 2008 SCMR 1221; Anwar Saifullah Khan v. The State and others 2001 SCMR 1040; Sajjad Ahmed v. Chairman, National Accountability Bureau and others 2008 YLR 2686; Muhammad Daud and another v. The State and another 2008 SCMR 173; Aftab Ahmed Khan Sherpao, Ex-Chief Minister of N.-W.F.P. v..The State PLD 2001 Pesh. 80 ref.

Syed Mahmood Alam Rizvi and Abrar Hasan for Appellant.

Shahab Sarki, Standing Counsel and Inspector, Gulsher Mughari, FIA, Crime Circle for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1207 #

2010 P Cr. L J 1207

[Karachi]

Before Gulzar Ahmed and Irfan Saadat Khan, JJ

ABDULLAH KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Appeal No. 349 and Criminal Revision Application No.143 of 2006, decided on 11th May, 2010.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Occurrence having gone un-witnessed, prosecution had relied upon circumstantial evidence on the grounds that accused being an employee of the deceased had free access to his house, who had pointed out the place of incident and got recovered the dead body and whose thumb was found injured---Evidence on record did not prove that accused was a visitor of the house of deceased or had free access to the sane---Complainant alone on the basis of the disclosure made by police had deposed about the injuries on the hand of the accused, which was a hearsay evidence---No medical evidence was brought on record to support the said injuries---Prosecution had unsuccessfully tried to prove by inconsistent and defective evidence that accused had taken the police party at the place of incident---In the absence of any independent and corroborative evidence to support the obtaining of finger prints from the place of occurrence and those of the accused, no reliance could be placed on the opinion of Finger Print Expert, when it was not known that on whose finger prints such opinion was based---None of the incriminating articles recovered in the case was produced in the Court, nor any report of Chemical Examiner was available on record to show that the blood-stained "Chhuri" and clothes were stained with the blood of the deceased---Circumstantial evidence led by prosecution had failed to lead to the guilt of accused---Evidence of the hostile prosecution witnesses that they had remained in police custody for 13/14 days and tortured and pressurized to give evidence against the accused and that they had signed documents at the police station, had gone unchallenged---Accused was acquitted in circumstances.

The State and others v. Rahim Dad and others 2005 MLD 1620; The State through Deputy Attorney-General v. Qazi Talib Mohyuddin and 2 others PLD 1996 Pesh. 69; Muhammad Shafique Ahmed v. The State PLD 1981 SC 472; MD. Nazir Hossain Sarkar and another v. The State 1969 SCMR 388; Ali Khan v. The State 1999 SCMR 955; Yaroo alias Yar Muhammad v. The State 1969 PCr.LJ 1580; Nasrullah v. The State 1995 MLD 515; Abdul Sattar v. The State PLD 1976 SC 404; Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231; Rasab Khan v. The State 2003 SCMR 1385; Ziaul Rehman v. The State 2001 SCMR 1405; Rahimullah Jan v. Kashif and another PLD 2008 SC 298; Muhammad Khan and another v. The State 1999 SCMR 1220; Munawar Ali alias Munawar Hussain v. The State PLD 1993 SC 251; Allah Yar and another v. The State 2005 PCr.LJ 83; Allanditto v. The State 1968 PCr.LJ 762; Khurshid v. The State PLD 1996 SC 305; Aftab Masih and another v. The State 1994 PCr.LJ 1580; Nisar Ahmad and 2 others v. The State 1994 PCr.LJ 1587; Shamsud Doha v. The State and another 2005 PCr.LJ 310 and 1968 SCMR 378 ref.

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

----S. 302(b)---Qatl-e-amd---Circumstantial evidence, appreciation of--General rule---No link in the chain of circumstances should be missing and all the circumstances must lead to the guilt of accused.

Ali Khan v. The State 1999 SCMR 955 and MD Nazir Hossain Sarkar and another v. The State 1969 SCMR 388 ref.

Ali Nawaz Channa for Appellant.

Muhammad Ashraf Kazi for the Complainant.

Saleem Akhtar, Additional Prosecutor-General for the State.

Dates of hearing: 18th February, 2010 and 10th March, 2010.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1226 #

2010 P Cr. L J 1226

[Karachi]

Before Shahid Anwar Bajwa, J

SAEEDUR REHMAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 145 of 2009, decided on 23rd April, 2010.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---No prejudice was shown to have been caused to accused by his arrest by the Investigating Officer, when he appeared himself at the police station---Recovery of crime weapon from the accused had been duly proved---Medical evidence regarding the injuries sustained by the deceased which had caused his death, had remained unshaken---Discrepancies pointed out in evidence were not material in any sense so as to dislodge the prosecution case---Complainant being father of the deceased could not be imagined to have substituted some one else in place of actual murderer of his young son---Motive for the occurrence had been clearly established---Ocular evidence furnished by both the eye-witnesses qua the incident had remained unshaken---Persecution case against the accused stood proved beyond any shadow of reasonable doubt in circumstances---Appeal was dismissed accordingly.

Dodo v. The State 2009 YLR 2049; Muhammad Hashim v. The State PLD 2004 SC 856; Nazeer Ahmed v. The State PLD 2009 Kar. 191 distinguished.

Daniel Boyd (Muslim Name as Saifullah) and another v. The State 1992 SCMR 196; Dr. Khalid Moin and others v. The State and others 2006 PCr.LJ 639; Khalid Javed and another v. The State, 2003 SCMR 1419; Ibrar Hussain and others v. The State and another 2007 SCMR 605; Muhammad Shafique Ahmad PLD 1986 SC 471; Akhtar Ali and others v. The State 2008 SCMR 6; Muhammad Pervez and others v. The State and others, 2007 SCMR 670; Abdul Haque v. The State and another PLD 1996 SC 1; Nasir Ahmad v. The State 2003 YLR 2457; Haroon Rasheed and 6 others v. The State 2005 SCMR 1568; Atta Muhammad v. the State 2009 PCr.LJ 590; Koli Trikam Jivraj and another v. The State of Gujarat, AIR 1969 Gujarat 69; AIR 1936 Rang 1; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758; Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502; Tawaib Khan and another v. The State PLD 1970 SC 13; Bakka v. The State 1977 SCMR 150; Khairu and another v. The State 1981 SCMR 1136; Ziaullah v. The State 1993 SCMR 155, Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11; Shaid Raza and another v. The State 1992 SCMR 1647; Irshad. Ahmad and others v. The State and others PLD 1996 SC 138; Ahmad Khan v. The State 1990 SCMR 803; Khalid Saifullah v. The State 2008 SCMR 688; Irshad Ahmad and others v. The State and others PLD 1996 SC 138; Farooq Khan v. The State 2008 SCMR 917; Nazir v. The State PLD 1962 SC 269; Shehruddin v. Allhaj Rakhio 1989 SCMR 1461 and Wazir Gul v. The State PLD 1995 Kar. 112 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Contradictions and improvements---Effect---Witness making contradictory statements or improvements changing his version to suit the situation, if found to be deliberate and dishonest, would cause serious doubt on his veracity.

Ibrar Hussain and others v. The State and another 2007 SCMR 605; Muhammad Shafiqu Ahmad's case PLD 1986 SC 471; Akhtar Ali and others v. The State 2008 SCMR 6 and Muhammad Pervez and others v. The State and others, 2007 SCMR 670 ref.

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Suggestions put in cross-examination---Evidentiary value---Suggestions put in cross-examination are no evidence at all against the accused and on the basis of such suggestions no inference can be drawn against the accused that he had admitted the facts referred to in the suggestions---Accused is entitled to the benefit of the plea set up by the counsel but it cannot be said .hat the plea of defence which his counsel puts forward must bind the accused---In a criminal case, counsel appears to defend the accused and he has no implied authority to make admissions against his client during the progress of litigation either for the purpose of dispensing with proof at the trial or incidentally as to any facts of the case---Role that a defence counsel plays in a criminal trial is that of assisting the accused in defending his case---Counsel has no implied authority to admit the guilt or the facts incriminating the accused---Suggestions made in the cross-examination of prosecution witnesses cannot be used to fill in the gaps in the prosecution evidence---Burden lies on the prosecution to prove the guilt of the accused--Such suggestions cannot in any case stand higher than the statement of the accused under S. 342, Cr.P.C.

Koli Trikam Jivraj and another v. The State of Gujarat, AIR 1969 Gujarat 69 and AIR 1936 Rang 1 ref.

(d) Counsel and Client---

----Criminal trial---Suggestions put in cross-examination by counsel---Evidentiary value---Principles.

Koli Trikam Jivraj and another v. The State of Gujarat, AIR 1969 Gujarat 69 and AIR 1936 Rang 1 ref.

(e) Administration of justice---

---Criminal trial---Appreciation of evidence---Sifting grain out of chaff---Use of common set of ocular evidence for recording acquittal and conviction of accused---Proposition elaborated.

Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758; Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502; Tawaib Khan and another v. The State PLD 1970 SC 13; Bakka v. The State 1977 SCMR 150; Khairu and another v. The State 1981 SCMR 1136; Ziaullah v. The State 1993 SCMR 155, Ghulam Sikandar v. Mai,iaraz Khan PLD 1985 SC 11; Shaid Raza and another v. State 1992 SCMR 1647; Irshad Ahmad and others v. State and others PLD 1996 SC 138 and Ahmad Khan v. The State 1990 SCMR 803 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Substitution---Substitution is a phenomenon of a rare occurrence, because even the interested witnesses would not normally allow real culprits for the murder of their relations let off by involving innocent persons.

Khalid Saifullah v. The State 2008 SCMR 688 and Irshad Ahmad and others v. The State and others PLD 1996 SC 138 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Interested witness---Scope---Interested witness is one who has motive, falsely implicates an accused or has previous enmity with the person involved---Statement of an interested witness can be taken into consideration for corroboration and mere relationship with the deceased is not sufficient to discredit the witness, particularly when he has no motive to falsely involve the accused.

Farooq Khan v. The State 2008 SCMR 917; Nazir v. The State PLD 1962 SC 269; Shehruddin v. Allhaj Rakhio 1989 SCMR 1461 and Wazir Gul v. The State PLD 1995 Kar. 112 ref.

Abdul Razak for Appellant.

Mahmood A. Qureshi for Complainant and Imtiaz Ali Jalbani, A.P.-G for the State.

Date of hearing: 24th December, 2009.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1248 #

2010 P Cr. L J 1248

[Karachi]

Before Imam Bux Baloch, J

HAZARO and another---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeal No. S-27 of 2007, decided on 9th March, 2010.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 460---Qanun-e-Shahadat (10 of 1984), Act. 22---Qatl-e-amd and house breaking by night---Appreciation of evidence---Benefit of doubt---Identification parade---Prosecution case was based only on identification test parade of accused---Prosecution witnesses had picked up the accused in the identification parade without describing the role played by each of them in the commission of the crime---Such identification proceedings were illegal and had no evidentiary value in the eyes of law---Prosecution, thus, had failed to prove the guilt of accused beyond reasonable doubt--- Benefit of doubt was extended to accused in circumstances and they were acquitted accordingly.

Lal Pasand v. The State PLD 1981 SC 142; Khadim Hussain v. The State 1985 SCMR 721; Mushtaq Ali Kalhoro v. The State 1996 PCr.LJ 1315; Abdul Sattar and another v. The State 1981 SCMR 678 and Mehmood Ahmed and 3 others v. The State 1995 SCMR 127 ref.

Asif Ali Abdul Razak Soomro for Appellants.

Ali Raza Pathan, Stale Counsel for Respondent.

Date of hearing: 9th March, 2010.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1261 #

2010 P Cr. L J 1261

[Karachi]

Before Amir Hani Muslim and Syed Zakir Hussain, JJ

NOOR HASSAN and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 44 of 2008, decided on 13th April, 2010.

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

----S. 302(c)/34---Qatl-e-amd---Appreciation of evidence---Ocular testimony furnished by the complainant and other eye-witness of the occurrence had fully supported the prosecution version--- Crime empties secured from the spot had matched with the gun recovered from the accused---Judicial confession made by accused did not suffer from any infirmity---Medical evidence had corroborated eye-witness evidence--- Impugned judgment was not open to any error---Conviction and sentence of accused were maintained in circumstances.

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

----S.302(c)/34---Qatl-e-amd---Appreciation of evidence---No crime weapon belonging to accused had been recovered, nor any injury was proved to have been caused by then to the deceased---Ocular testimony was contradicted by the expert report and evidence of recovery of crime empties---Accused had rightly been found innocent in police investigation---Every doubt appearing in the case as to the guilt of the accused would entitle them to acquittal therefrom---Accused were acquitted in circumstances.

Tarique Pervaiz v. The State 1995 SCMR 1345 ref.

Abdul Mujeeb Pirzada for Appellants.

Ali Haider Saleem A.P.-G. for The State.

Date of hearing: 13th April, 2010.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1265 #

2010 P Cr. L J 1265

[Karachi]

Before Bhajandas Tejwani, J

Mrs. FATIMA through Attorney---Applicant

Versus

IMAM ZADA and another---Respondents

Criminal Revision Application No. 57 and M.A. No. 2217 of 2010, decided on 11th May, 2010.

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

----Ss. 3 & 4---Illegal dispossession-Dismissal of complaint---Applicant/complainant who claimed to have become exclusive owner of the property which she had inherited, had alleged that respondent/accused was in illegal and unauthorized possession of that property---Complaint had been dismissed being not maintainable---Record showed that accused was in possession of property in question much prior to transfer of the same to the complainant by virtue of inheritance, but complainant was silent with regard to the acquisition of the possession of the property by accused---Complainant failed to show the time and date of dispossession, which was a prime consideration in the case---Not only the time and date, but year of commission of offence was also missing from the complaint and no evidence had been brought on the record and a vague complaint was preferred---Complainant had herself admitted that in the year 1996 she acquired the premises by way of inheritance and after that she issued notice to accused for vacating the premises, but for complete 14 years complainant was silent with regard to her right for getting possession of the property from accused---On that score alone complaint could not be maintained under Ss.3/4 of Illegal Dispossession Act, 2005 as no detail had been arrayed in the complaint as to when accused actually became in possession of the property-Trial Court, in circumstances, had rightly concluded that the complaint was not maintainable.

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

----Ss. 3 & 4---Illegal dispossession---Most essential ingredient of Illegal Dispossession Act, 2005 was that there should be dispossession of the owner or occupier of the property and in case the owner or occupier did not level the allegation of his dispossession or forcible occupation of accused over the property then the provision of Said Act would not he applicable---In the present case, the complaint itself was silent and did not disclose any incident of dispossession which would lead to a conclusion that no offence of forcible dispossession and occupation, had taken place, warranting exercise of jurisdiction under Illegal Dispossession Act, 2005---Accused had pleaded that he was in possession of property since 1987 as a tenant of one of the legal heirs of actual owner; he had produced convincing evidence in shape of utility bills, of electricity, telephone and sui gas and so also rent receipts which were deposited by hint in the court of Rent Controller concerned---All those facts coupled with admission of the complainant that accused was enjoying the possession of the property much prior to the acquiring of the ownership of the property by her, were sufficient to constitute that no incident of dispossession, if any, had taken place as accused was in possession of the premises from so many years and much prior to promulgation of Illegal Dispossession Act, 2005---Provisions of Ss.3 & 4 of Illegal Dispossession Act, 2005, in circumstances were not attracted in the case---Trial Court, had rightly concluded that the complaint was not maintainable.

Muhammad Safdar for Applicant.

Khadim Hussain, D.P.-G. for Respondents.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1281 #

2010 P Cr. L J 1281

[Karachi]

Before Amir Hani Muslim and Syed Zakir Hussain, JJ

AURANGZEB---Appellant

Versus

THE STATE---Respondent

Special ATA Appeal No. 13 of 2006, decided on 23rd April, 2010.

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

----Ss. 365-A & 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Abduction for extorting property etc., qatl-e-amd and kidnapping for ransom---Prosecution witnesses had seen the deceased abductee sitting on the rear seat of the car being driven by the accused---Simple relationship of prosecution witnesses with the deceased could not render their evidence unreliable, as no material had been brought on record to establish that they had any motive to falsely implicate the accused in the case---Contention that accused was only seen driving the car and he did not actively participate in the kidnapping of the deceased, had no force---In case of kidnapping for ransom role of every member was not relevant, but it was the achievement of common object for obtaining ransom amount---Prosecution had brought sufficient evidence on record against the accused to prove his guilt for the affence of kidnapping for ransom punishable under S. 365-A, P.P.C.---However, sufficient evidence was not available on record to connect the accused with the alleged murder of the abductee---Conviction of accused under S. 302(b), P.P.C. was consequently set aside---Other convictions of accused were maintained, but sentence of death awarded to hint thereunder was converted into imprisonment for life in circumstances.

Ansar Ahmad Khan Barki v. State 1993 SCMR 1660; Mir Muhammad v. State 1995 SCMR 614; Muhammad Akbar v. State 1995 SCMR 693; Zakir Khan v. State 1995 SCMR 1793; State v. Farman Hussain PLD 1995 SC 1 and Hasanullah v. State 1999 MLD 514 ref.

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

----S. 365-A---Abduction for ransom---Sentence---Work of culprits in case of abduction for ransom is mostly divided and preplanned---Abduction is done by some of the culprits, place of confinement is guarded by others and ransom is extorted by one or two of them--Object of all the culprits being to extort money, punishment could be the same irrespective of the role played by each of them.

Hasanullah v. State, 1999 MLD 514 ref.

Shaukat Hussain Zubedi for Appellant.

Habib Ahmed for the Complainant.

Ali Haider Saleem, Assistant Prosecutor-General for the State.

Dates of hearing: 22nd, 24th, 25th, 26th and 29th March, 2010.

2010 P Cr. L J 1400

[Karachi]

Before Abdul Hadi Khoso, J

KHAZIR HAYAT---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 1274 of 2006 and M.A. No. 3495 of 2009, decided on 25th May, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 497, 499 & S02---Penal Code (XLV of 1860), Ss.420, 467, 468 & 471---Cheating, forgery and using as genuine a forged document---Bail, grant of---Application for return of surety documents to surety---Case of accused was kept in abeyance and proceedings had been stopped and accused was directed to execute P. R. bond to appear---Counsel for surety had prayed for return of surety documents to the surety and had further submitted that due to some domestic problems, financial constraints and other unavoidable circumstances, the surety had to dispose of the property to meet his necessities and requirements---When the complainant and witnesses were not turning up, the Trial Court kept the case in abeyance and required the P.R. bond from accused for appearing in the court---Held, it would not be justified to retain the documents of the surety for an indefinite period---Surety who was assisting the court in the administration of justice, could not be punished and no inconvenience and hardship should be created for the surety---Application was allowed and Nazir of the court was directed to return the surety documents to the surety in the interest of justice.

Tahir Raheem for Applicant

Muhammad Riaz, Surety in person.

Ms. Rahat Ehsan, D.P.-G. for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1421 #

2010 P Cr. L J 1421

[Karachi]

Before Sajjad Ali Shah and Aqeel Ahmed Abbasi, JJ

SAJID BIN WAJID A. SAYED and 2 others---Petitioners

Versus

DISTRICT POLICE OFFICER HYDERABAD and 7 others---Respondents

Constitutional Petition No.D-652 and M.As. Nos. 2969-3192 of 2009, decided on 27th April, 2010.

Penal Code (XLV of 1860)---

----Ss. 324/114---Constitution of Pakistan (1973); Art.199---Constitutional petition---Attempt to commit qatl-e-amd and abetment---Quashing of F.I.R.---Petitioner had sought quashing of F.I.R. on the ground that same had been registered on account of enmity between the parties emanating from family dispute and guardianship proceedings filed by one of the petitioners---Petitioners had not specifically made allegation on oath against the official respondents---Case was not fit one to accept the contention of the petitioner whereby legal action ,,against the official respondent was sought---High Court, however, put to caution the Police Officials/respondents to always act strictly in accordance with law and observe all the legal and procedural requirements and would not abuse the process of law by encouraging false and frivolous litigation---High Court observed that Police functionaries were expected to never become party to set of allegation of either party and would always act prudently and would conduct an impartial enquiry into the matter.

Masharuddin v. The State 1998 PCr.LJ 1035 ref. Petitioner in person.

Mukhtar Ahmed Khanzada, State Counsel.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1426 #

2010 P Cr. L J 1426

[Karachi]

Before Faisal Arab, J

INSAAF and 2 others---Petitioners

Versus

THE STATE---Respondent

M.A. No.2904 of 2009 in Criminal Appeal No.64 of 2009, decided on 17th November, 2009.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S.302(b)---Qatl-e-amd---Suspension of sentence---Application for---One of accused persons having absconded at the time of pronouncement of judgment, his application for suspension of sentence, was not considered---Accused was alleged to have caused hockey blows to the deceased, while the other accused was alleged to have caused knife blows to the deceased---Accused being a government servant, should be given the opportunity to serve his department till the decision of the appeal---Sentence of said accused was suspended till decision of appeal---Application in respect of other accused persons was dismissed as said accused was said to have stabbed the deceased whereas the third accused was absconded at the time of announcement of judgment.

Syed Madad Ali Shah for Appellants.

Sahid Shaikh, A.A.-G. for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1431 #

2010 P Cr. L J 1431

[Karachi]

Before Ahmed Ali M. Shaikh, J

UMMAR KHAN DURANI---Applicant

Versus

MUHAMMAD HAMAYOON KHAN and 2 others---Respondents

Criminal Miscellaneous Application No. 84 of 2010, decided on 18th May, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Bail, cancellation of---Application for---Tentative assessment of the prosecution evidence in the shape of statements of the prosecution witnesses under S.161, Cr.P.C. and medical evidence, would show reasonable grounds to believe that accused had committed an offence falling within the purview of S.302, P.P.C.---Mere application of S.319, P.P.C. in earlier charge-sheet, submitted by the Police, would not restrict the court from not going beyond the said provision of law--If justice so demanded, it was the duty of the court to proceed independently on the basis of the facts of the case---Dead body of deceased was found in the bedroom of accused---Apparently case fell within the purview of S.302, P.P.C. and not S.319, P.P.C.---Trial Court without comprehending the law properly and exercising the jurisdiction judicially, extended the concession of bail to accused---Prima facie case having been made out against accused, bail granted to him was cancelled, in circumstances.

Aamir Manzoor for Applicant.

Raza Hashmi for Respondent No. 1.

Imtiaz Ali Jalbani, A.P.-G. for Respondent No. 2.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1438 #

2010 P Cr. L J 1438

[Karachi]

Before Ali Sain Dino Metlo and Syed Shafqat Ali Shah Masoomi, JJ

GULZAR AHMED---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. D-71 and D-73 of 2001, decided on 22nd April, 2009.

(a) Administration of justice---

----Duty and obligation of a Judge---Judge in accusatorial system of administration of justice is required to maintain his impartiality and must not show his leaning, even slightest, either toward the prosecution or towards accused.

(b) Criminal trial---

----Normally, proceedings for holding trial of a person or criminal charge, were initiated either on complaint or on the report of the Investigating Officer, however, the court could also initiate the proceedings on its own, but keeping in view the statutory principle of maintaining impartiality, such a course was to be adopted in rare cases of grave injustice, in which there was overwhelming evidence against accused.

----Ss.9(b)(c), 15 & 48---Appreciation of evidence---Neither the Investigating Officer had said anything about accused nor public prosecutor requested for trying him---Trial Court not only decided to try accused on its own initiative, when no evidence was available against him, but convicted and sentenced him to imprisonment for life, without an iota of evidence against him---Two witnesses examined by the prosecution, did not implicate accused at all---Conduct of the Trial Judge in convicting accused and sentencing him to life imprisonment without any evidence against him, could not be overlooked---Such conduct on the part of a senior judicial officer, would have the effect of undermining confidence and creating sense of insecurity among the general public---State Counsel had also conceded to allow appeal of accused---Appeal of accused, accordingly was allowed and he was honourably acquitted.

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

----Ss. 15 & 48---Appreciation of evidence---Sentence, reduction in---Sufficient evidence was available against both co-accused for their conviction---Said accused having failed to rebut or shake evidence of two prosecutions witnesses, they were rightly convicted---Counsel for said co-accused, conceding to their conviction, did not press appeal against the conviction, however, he requested for reducing their sentence to the imprisonment, which they had already undergone---Nothing was available to show that said co-accused were involved in any criminal case prior to the present case---Both co-accused had remained in custody for few months less than ten years---Such was the sufficient punishment they were awarded for the offence committed by them--- Appeal by said co-accused was dismissed as not pressed, however their sentence was reduced to the imprisonment which they had already undergone, they could be released immediately.

Niazuddin v. The State 2007 SCMR 206 ref.

Asif Ali Abdul Razak Soomro for Appellant.

Naimatullah Bhurgri for the State.

Date of hearing: 22nd April 2009.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1458 #

2010 P Cr. L J 1458

[Karachi]

Before Khadim Hussain M. Shaikh, J

SHAHNAWAZ and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Bail Application No.161 and M.A. No.702 of 2009, decided on 18th May, 2009.

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

----S.497---Penal Code (XLV of 1860), Ss.324, 114 & 34---Attempt to commit qatl-e-amd---Bail, refusal of---Two out of three accused persons had been assigned specific role of causing multiple injuries to injured on various parts of his body including neck, chest, abdomen, forehead and other parts of body which included his vital parts of body---Enough evidence was available to indicate that prima facie attempt was made by said two accused persons on the life of injured---Both said accused persons having failed to make out a case for grant of bail, their bail application was dismissed.

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

----S.497---Penal Code (XLV of 1860), Ss.324, 114 & 34---Attempt to commit qatl-e-amd---Bail, grant of---Accused attempted to fire from his pistol, but it missed and he was not alleged to have caused any injury to the prosecution witnesses---Said accused being entitled to the concession of bail, same was granted to him.

Habibullah G. Ghori for Appellants.

Naimatullah Bhurgri along with M.O. Dr. Mushtaque Ahmed Noonari for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1469 #

2010 P Cr. L J 1469

[Karachi]

Before Khadim Hussain M. Shaikh, J.

AYAZ HUSSAIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 130 of 2009, decided on 13th April, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.324/34---Attempt to commit qatl-e-amd---Bail, refusal of---Accused had been nominated in the promptly lodged F.I.R., which was lodged within 45 minutes of the incident with specific role of causing firearm injuries to the injured by repeated fires from his pistol, which prima facie established the intention of accused to commit qatl-e-amd of the injured---Recovery of crime weapon was also effected from accused and medical evidence was also in line with the ocular evidence---Prima facie sufficient evidence against accused for his involvement in the offence was available which fell within prohibitory clause' of S.497, Cr.P.C.---Accused having failed to make out his case for grant of bail, his application for bail, was dismissed.

Sarfraz Khan Jatoi for Applicant.

Nisar Ahmed G. Abro State Counsel for the Respondent.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1474 #

2010 P Cr. L J 1474

[Karachi]

Before Syed Shafqat Ali Shah Masoomi, J

GHULAM ASGHAR and 3 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.193 and M.As. Nos.547, 548 of 2009, decided on 17th April, 2009.

Criminal Procedure Code (V of 1898)---

----Ss.498 & 498-A---Offences Against Property (Enforcement of Hudood) Ordinance, (VI of 1979), S.17(3)---Penal Code (XLV of 1860), Ss.390 & 403---Robbery and dishonestly misappropriation of property---Protective pre-arrest bail, grant of---Counsel for accused had submitted that on completion of usual investigation the Investigating Agency had filed charge sheet, showing accused persons as absconding and that the Trial Court had issued non-bailable warrants against them; and the Police was after them to arrest them in the case---Counsel had further contended that since accused were shown absconders in the challan and the Trial Court had issued non bailable warrants of arrest against them, they would be directly remanded to jail, if they would appear before the Trial Court without deciding their bail before arrest application on merits---Counsel had also contended that dispute existed between the parties over landed property and due to such enmity accused had been falsely involved in the case---Counsel had also contended that accused were respectable persons, and if they were arrested, they would be humiliated and tortured by the Police---Protective bail was granted to accused persons for fourteen days, in circumstances.?

Ali Nawaz Ghanghro for Applicants.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1479 #

2010 P Cr. L J 1479

[Karachi]

Before Syed Shafqat Ali Shah Masoomi, J

MUHAMMAD MUKEEM alias MUKEEM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.105 and M.A. No.304 of 2009, decided on 9th March, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302, 148 & 149---Qatl-e-amd---Bail, grant of---Further inquiry---Delay of about 14-1/2 hours in lodging F.I.R., whereas distance between place of incident and the Police Station was only 15-kilometers---No specific role had been assigned to accused in the F.I.R. that he fired upon deceased, but same had been attributed to co-accused who instigated other co-accused to kill deceased and thereafter a co-accused fired from his kalashnikov upon deceased resulting into his death---Postmortem report of deceased also disclosed that deceased sustained only one injury on his person---Accused allegedly remained fugitive from law, but no proceedings under Ss.87 & 88, Cr.P.C. had been initiated against him and accused had not been declared as proclaimed offender; on the contrary record had shown that accused voluntarily appeared before court with an application for grant of pre-arrest bail---When on merits accused had a good case, the abscondence alone should not come in his way of grant of bail---No doubt a fugitive from law would lose some of his rights, but he would not lose the. right of bail forever---Co-accused whose name transpired in the F.I.R. had been granted bail---When no overt act had been ascribed to accused; fatal shot was attributed to co-accused and question of vicarious liability would be determined at the stage of trial, case of accused, in such circumstances required further inquiry as contemplated by S.497(2), Cr.P.C.---Accused was admitted to bail, in circumstances.

Asif Hussain Muhammad Nawaz Chandio for Applicant.

Miss Robina Dhamrah State Counsel.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1486 #

2010 P Cr. L J 1486

[Karachi]

Before Khadim Hussain M. Shaikh, J

PAPOO alias AZHAR ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 679 and M.A. No.1662 of 2008, decided on 25th March, 2009.

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

----S.497---Penal Code (XLV of 1860), Ss. 302, 337-H(ii), 148 & 149-Qatl-e-amd-Bail, grant of---No allegation had been levelled in F.I.R. against accused of causing any injury to deceased or to any of the prosecution witnesses---General allegation of firing in the air was made against accused---No recovery of pistol had been effected from accused and even no empty of pistol was secured from the place of incident---Accused, in circumstances was granted bail.

Yaroo v. The State 2004 SCMR 864 and Faraz Akram v. The State 1990 SCMR 1360 ref.

Asif Ali Abdul Razzak Soomro for Applicant.

Muhammad Akram Shaikh, State Counsel.

2010 P Cr. L J 1591

[Karachi]

Before Salman Ansari, J

GUL AMIR---Applicant

Versus

THE STATE---Respondent

Bail Application No. 103 of 2009, decided on 25th February, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(b)---Possessing of narcotics---Bail, grant of---Co-accused, against whom similar allegation was attributed, had been granted bail---Report of Chemical Analyzer would make little difference so as to place case on different footing from that of co-accused who was granted bail by the Trial Court---Recovery had been shown in the case under Ss.6/9(b) of Control of Narcotic Substances Act, 1997 in which 7 years punishment was provided---Case of accused, in circumstances not falling within the prohibitory clause of S.497, Cr.P.C., he was released on bail.

Muhammad Nawaz for Applicant.

Muhammad Ali Lari, Special Prosecutor-General, ANF for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1604 #

2010 P Cr. L J 1604

[Karachi]

Before Salman Ansari, J

SOOMAR and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 654 of 2008, decided on 22nd January, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 114, 147, 148, 149, 34 & 504---Qatl-e-amd---Bail, grant of---Further inquiry---Accused persons remained in custody for more than two years and the punishment for the injuries inflicted about which the final report had been issued, had shown that the offences did not fall within the prohibitory clause to S.497(c), Cr.P.C.---Such was a matter of further enquiry to determine whether accused persons had the common intention with co-accused to commit murder or attempt to commit murder---Accused were released on bail, in circumstances.

Ali Gohar Soomro for Applicants.

M. Iqbal Kalhoro, Additional Prosecutor-General for the State.

2010 P Cr. L J 1653

[Karachi]

Before Syed Shafqat Ali Shah Masoomi, J

MUMTAZ and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.195 and M.As. Nos.601 and 602 of 2009, decided on 4th May, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302, 452, 109, 148 & 149---Qatl-e-amd---Bail, refusal of---Names of accused persons transpired in the promptly registered F.I.R.---Said F.I.R. had disclosed that since all accused persons including accused had trespassed in the house of the complainant they were also members of unlawful assembly---Accused persons in furtherance of their common object appeared at the place of vardat, and one of them fired at the wife of the complainant due to which she died on the spot---Every member of the unlawful assembly was therefore vicariously liable for the commission of crime---Contention of counsel for accused that no specific role had been assigned to accused, had no force, as according to F.I.R. accused along with other accused entered in the house of complainant duly armed with pistol and facilitated the main accused to kill deceased in presence of her husband and her six children---Deceased was the mother of six daughters and two sons and most of them were minors--Injured lady sustained firearm injury on the head in furtherance of the common intention of accused---Offence took place in the morning at 7 a.m. and accused were properly identified by the complainant and two eye-witnesses present at place of incident---Accused persons, in circumstances had failed to make out a case of further inquiry---Bail application was dismissed, in circumstances.

Ali Hassan Brohi for Applicants.

Nisar Ahmed G. Abro, State Counsel.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1661 #

2010 P Cr. L J 1661

[Karachi]

Before Abdur Rahman Faruq Pirzada, J

MANSOOR AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.788 of 2008, decided on 26th December, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 302/201/310-A/419/210/B/117/109/143/ 350/355---Qatl-e-amd---Bail, grant of---Alleged incident of murder of deceased was not witnessed by any person---F.I.R. was stated to have been registered on the basis of information mainly through the daily newspaper and electronic media---No person, however belonging to the newspaper/media was examined as a witness---Presumption had made in F.I.R. that accused along with co-accused persons committed the alleged offence---Validity---No person could be allowed to be incarcerated for an allegation which was simply based upon suspicion or presumption---Judicial order denying concession of bail had to be passed on the basis of some cogent material on record, which was lacking in the present case---Six co-accused had already been granted bail by the Trial Court---F.I.R., had alleged that accused persons, named in F.I.R. jointly planned to commit the alleged offence, whereafter accused along with his companions committed the murder of deceased---Allegation was levelled against all the seven accused persons named in F.I.R.---Case of accused, in circumstances, stood on identical footing to that of six co-accused who had already been granted bail by the Trial Court---No justification existed to withhold the same concession of bail in favour of accused--- Accused was admitted to bail, in circumstances.

Noor Hassan Malik for Applicants.

Imtiaz Ali Soomro, Assistant Advocate-General for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1674 #

2010 P Cr. L J 1674

[Karachi]

Before Khadim Hussain M. Shaikh, J

ABDUL FATTAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.10 and M.A. No.22 of 2009, decided on 30th March, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302, 337-H(ii), 114, 148 & 149---Qatl-e-amd---Bail, grant of---Further inquiry---State Counsel had raised no objection to the grant of bail to accused---Name of accused did not find place in the F.I.R., but he was named in the supplementary statement of the complainant and statements under 5.161, Cr. P. C. of prosecution witnesses recorded subsequently---Accused, who allegedly was armed with gun, while leaving the scene of occurrence and running away, had made firing in the air---No overt act was assigned to accused and no empty of .12 bore gun was secured from the place of incident and even no recovery of alleged gun had been effected from him---Case of accused in circumstances, fell within the ambit of S.497(2), Cr.P. C., which had entitled him to the concession of bail.

Muhammad v. The State 1998 SCMR 454 and Faraz Akram v. The State 1999 SCMR 1360 ref.

Anwar Ali Shaikh for Applicant.

Muhammad Akram Shaikh, State Counsel.

2010 P Cr. L J 1700

[Karachi]

Before Mrs. Yasmin Abbasey, J

HAMID---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-203 and M.A. No. 518 of 2006, decided on 24th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 114 & 34---Qatl-e-amd---Bail, grant of---Further inquiry---State counsel had conceded that deceased received injuries from sharp cutting weapon, whereas accused was armed with fire-arm weapon---Deceased had not received any fire-arm injury on his person and all the injuries sustained by deceased were through sharp edged weapon---No direct role, in circumstances, was attributed to accused, which had made the case of accused that of further inquiry---Accused was allowed to be enlarged on bail, in circumstances.

Mumtaz Alam Leghari for Applicant.

Muhammad Azeem Panhwar for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1705 #

2010 P Cr. L J 1705

[Karachi]

Before Salman Ansari, J

WAHEEDULLAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.108 of 2009, decided on 17th February, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 324/34---Attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---Complainant had named four persons in his statement after the incident, but subsequently he had exonerated three accused persons who had not been challaned in the case---Both witnesses of prosecution were also police officials---Statement of the complainant having been altered, case would require further inquiry to determine the guilt of accused---Accused was admitted to bail, in circumstances.

Aijaz M. Banguish along with Naushaba Baig for Applicant.

Salim Akhtar, Additional Prosecutor-General and Farah Naz Kazi, State Counsel.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1715 #

2010 P Cr. L J 1715

[Karachi]

Before Salman Ansari, J

MUHAMMAD HANIF alias TANGO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.11 of 2008, decided on 27th January, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324/353/186/34---

Control of Narocotic Substances Act (XXV of 1997), Ss. 6/9(c)---

Attempt of commit murder and possession of narcotics---Bail, grant of--

-Further inquiry---Accused was granted bail for the offence punishable

under Ss. 6/9(c) of Control of Narcotic Substances Act, 1997---Case

was of an infective firing---Where ineffective firing was alleged, matter

would require further inquiry to determine the role actually played by

accused in the case---Accused was admitted to bail, in circumstances.

Ghulam Rasool Mangi for Applicant.

M. Iqbal Kalhoro, Additional Prosecutor-General for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1719 #

2010 P Cr. L J 1719

[Karachi]

Before Ali Sain Dino Metlo and Syed Shafqat Ali Shah Masoomi, JJ

SHAHBAZ and 4 others---Appellant

Versus

THE STATE and others---Respondents

Criminal Appeal No. 105 of 2006 and Criminal Reference No. 1 of 2007, heard on 19th May, 2009.

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

----Ss.302, 436, 449 & 149---Qatl-e-amd, mischief by fire or explosive substance---Appreciation of evidence---Three eye-witnesses examined by the prosecution were not only interested witnesses, but they were also chance witnesses, they were inimical to accused persons and their presence at the time and place of incident was not in the normal course---Reason for their presence at the place of incidence, as given by them, was not convincing; in such situation, it would be highly risky to implicitly rely upon them---In the present case, the number of accused seemed to have been exaggerated and maximum members of same family had been implicated---Where maximum members of same family had been involved, witnesses were chance witnesses, ocular evidence was contradicted by medical evidence; and the only natural witness was given up without reasonable justification; and the independent witnesses coming to the place of incident were not made witnesses, it would not be safe to make departure from the rule of seeking independent corroboration of evidence of interested witnesses---There being background of enmity between the parties, three witnesses examined by the prosecution, could safely be termed as interested witnesses---Three eye-witnesses did not tell how and who set the house on fire and who threw dead bodied into the fire---Glaring contradiction between ocular and medical evidence had created serious doubt about the claim of the eye-witnesses to have actually witnessed the incident--One of the important eye-witnesses was given up by the prosecution--Said witness, who was the only natural witness, his non-examination would have an adverse effect upon the prosecution case, when reason for giving up said most important witness, was not convincing---Very presence of the eye-witnesses at the place of incident was highly doubtful---Trial Court under the influence of heinousness of the offence had convicted accused persons---Medical evidence, did not provide any corroboration against any accused---Empties secured from the place of incident and the weapons allegedly recovered on the pointation of three persons were not sent to the Ballistic Expert; so as to find out whether or not they were used in the commission of the offence---Motive was also not convincing---Moreover enmity could be motive for committing the offence and could also be the reason for false implication---Conviction and sentences awarded to accused persons, were set aside in view of said facts and circumstances---Accused were acquitted and were released.

Haji Rab Nawaz v. Sikandar Zulqarnain and others 1998 SCMR 25; Muhammad Irshad and another v. The State 1999 SCMR 1030; Muhammad Ahmed and another v. The State 1997 SCMR 89; Muhammad Akhtar v. The State 2007 SCMR 876; Zahoor Ahmed v. The State 2007 SCMR 1519; Zahoor Fatima v. Muhammad Naeem and others 1988 SCMR 343 and State v. Tariq Mahmood 1987 PCr.LJ 2173 ref.

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

----Ss. 302, 436, 449 & 149---Qatl-e-amd, mischief by fire on explosive substance---Appreciation of evidence---Presumption of innocence---Presumption of innocence that a person was presumed to be innocent until proved guilty and the rule about burden of proof in criminal cases that prosecution was bound to prove guilt of accused beyond reasonable doubt, were one and the same thing stated in different language with a common object of ensuring that no innocent person was punished---Such was an age old principle---Holy Prophet (P. B. U.H.) also said "Drive off the ordained crimes from the Muslims as far as you can, if there is any place of refuge for him, let him have his way, because the leader's mistake in pardon, is better than his mistake in punishment"---Public interest in securing conviction in serious offences should not be allowed to outweigh the public interest in ensuring that innocent people were not convicted and subjected to heavy sentences, otherwise the presumption of innocence and the rule regarding burden of proof would be confined only to petty offences; which would have serious damaging effect upon the whole system---Presumption of innocence not only would protect particular individuals on trial, but it would serve to maintain public confidence in the enduring integrity and security of the legal system.

State v. Tariq Mahmood 1987 PCr.LJ 2173 and Ayub Masih v. The State PLD 2002 SC 1048 ref.

Abdul Razak Soomro for Appellants.

Azizul Haque Solangi, Assitant A.-G. for the State.

Awan Rehmatullah Nadeem for the Complainant.

Date of hearing: 19th May, 2009.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1741 #

2010 P Cr. L J 1741

[Karachi]

Before Maqbool Ahmed Awan, J

KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-62 of 2009, decided on 30th April, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302, 404 & 34---Qatl-e-amd---Bail, grant of---Further inquiry---F.I.R. had shown that accused was armed with hatchet and he, along with two unknown accused persons, who were armed with country made pistol, caught hold of the complainant party, but did not cause any injury to complainant or any of the witnesses---No injury to the deceased had been caused by accused, though he was alleged to have been armed with hatchet---Enmity and motive as stated in the F.I.R., was attributed to co-accused who was annoyed with deceased because deceased had involved him in the case of theft--After completing the offence, co-accused along with two unknown persons drove away the motorcycle of complainant party and accused proceeded to his village along with hatchet, but said hatchet had not so far been recovered from the possession of accused---F.I.R. had also been lodged after unexplained delay of about 16-1/2 hours---Allegation against accused was general in nature---Question of vicarious liability of accused could be determined at the trial---Case against accused, in circumstances, required further enquiry as contemplated by S.497(2), Cr. P. C.---Accused was admitted to bail, in circumstances.

Basharat Hussain v. The State 1978 SCMR 357; Shahid v. The State 1994 SCMR 393; Mehmood Akhtar and another v. Haji Nazir Ahmed and 4 others 1995 SCMR 310; Faraz Akram v. The State 1999 SCMR 1360; Farzand Ali v. Taj and 2 others 2000 SCMR 1854; Gulzar Khoso v. The State 2006 PCr.LJ 1984 and Muhammad Imran and others v. The State 2008 PCr.LJ 1555 rel.

Amjad Ali Sahito for Applicant.

Mukhtar Ahmed Khanzada for the Complainant.

Muhammad Aslam Sipio, State Counsel.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1778 #

2010 P Cr. L J 1778

[Karachi]

Before Ahmed Ali M. Shaikh, J

Chaudhry MUHAMMAD ASLAM---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No. 101 of 2008, decided on 4th June, 2010.

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

----Art. 47---Penal Code (XLV of 1860), Ss.408/468/471/477-A/34---Criminal breach of trust by clerk or servant; forgery, using as genuine a forged document and falsification of accounts---Two separate/independent proceedings arising out of different F.I.Rs. ---Evidence of a witness recorded in one case could not be taken into consideration in another independent/separate case---Article 47 of the Qanun-e-Shahadat, 1984 provided that the evidence given by the witness in judicial proceedings, was relevant for the purpose of proving in the subsequent judicial proceedings, or in later stage of the same judicial proceedings---Same evidence was not relevant for the purpose of proving in a separate and independent proceedings.

Ghulam Hussain and other v. The State 1996 PCr.LJ 514 and In Noor Elahi's case PLD 1967 SC 708 ref.

Mahmood A. Qureshi for Applicant.

Shahzado Saleem Nahiyoon, A.P.-G. for the State.

Date of hearing: 6th May, 2010.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1784 #

2010 P Cr. L J 1784

[Karachi]

Before Faisal Arab, J

MUHAMMAD MUQEEM---Applicant.

Versus

ADDITIONAL SESSIONS JUDGE KOTRI and others---Respondents

Criminal Revision Application No. S-57 of 2010, decided on 14th June, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 497(5)---Penal Code (XLV of 1860), S.468---Forgery---Bail cancellation of----Prosecution witnesses having not been harassed, bail ought not to have been cancelled, however, in case any cogent material before the Trial Court would come which would show that the prosecution witnesses were being harassed or being prevented from coming to the court to give evidence, then the Trial Court would be at liberty to consider cancellation of bail.

Muhammad Sachal R. Awan, for Applicant.

Muhammad Iqbal Kalhoro, Additional P.G. for the State.

Raja Jawad Ali Sahar for the Complainant.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1801 #

2010 P Cr. L J 1801

[Karachi]

Before Aqeel Ahmed Abbasi, J

ABDUL SATTAR---Applicant

Versus

IIND ADDITIONAL SESSIONS JUDGE/EX-OFFCIO JUSTICE OF PEACE and 3 others---Respondents

Criminal Miscellaneous Application No. S-121 of 2009, decided on 4th June, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B, 154, 155, 156, 157 & 561-A---Dismissal of application for registration of criminal case---Applicant had impugned order passed by Ex-officio Justice of Peace, whereby application filed by him under Ss.22-A and 22-B, Cr.P.C. was dismissed---Justice of Peace while entertaining the complaint filed by applicant alleging cognizable offence having been committed by accused persons nominated therein, had acted beyond its jurisdiction provided in terms of Ss.22-A, 22-B, Cr. P. C. by finally disposing of the matter without realizing that unless a cognizable case was registered in terms of S.154, Cr.P.C.; and investigation in terms of Ss.155, 156 & 157, Cr.P.C. was conducted, such summary disposal of the allegations could not be made---Whenever a cognizable offence was reported, police officer like a prudent public functionary was required to conduct a preliminary investigation, collect the connecting material/evidence of the offence alleged; and if he was satisfied that prima facie cognizable offence had been committed, to register the F. I. R. under S.154, Cr.P.C., without being influenced as to whether the same would prove to be true or false---Such aspect of the case could only be examined after registration of F.I.R.; and during investigation of the case---Justice of Peace in terms of Ss.22-A & 22-B, Cr.P.C. on receipt of complaint alleging cognizable offence, after seeking comments from the concerned authorities, was required to direct the concerned Police Officer to record the statement of the applicant; and if a cognizable offence was made out, to register the F.I.R. against the persons nominated therein---Impugned order was not sustainable in law to the extent, whereby the matter had not been referred to the concerned Police to take appropriate action on the complaint of applicant alleging cognizable offence in accordance with law---Impugned order was set aside and matter was remanded to the Justice of Peace with directions to pass a fresh order after providing a proper opportunity of hearing to the applicant.?

Tariq Siddique Khokhar and 5 others v. Additional Sessions Judge, Lahore and 3 others 2006 PCr.LJ 622; Muhammad Bashir v. Station House Officer Okara Cantt. and others PLD 2007 SC 539 and Kehar Khan v. Additional Sessions Judge and Ex-Officio Justice of Peace, Kotri and 3 others 2009 PCr.LJ 634 ref.

Muhammad Sachal R. Awan for Applicant.

Shahid Shaikh, APG along with Fida Hussain Mastoi, DPO Badin, Ghulam Muhammad Mandhro, SHO, Police Station, Badin and WHC Hadi Bux for the Respondents.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1822 #

2010 P Cr. L J 1822

[Karachi]

Before Zahid Hamid, J

SAMIULLAH---Applicant

Versus

THE STATE---Respondent

Bail Application No. 315 of 2010, decided on 24th June, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.395---Dacoity---Bail, grant of--- Benefit of doubt--- Two co-accused were said to have been granted bail; and though two of the three accused persons were stated to have muffled their faces, it was yet to be determined as to who was the accused who had not muffled his face---Recovery of mobile phone attributed to accused had also not been recovered from his possession and fourth accused who was arrested was subsequently released after investigation under S.497(2), Cr. P. C.---No features of culprits were specified in the F.I.R.---Benefit of doubt for the grant of bail, was extended to accused and he was granted bail.

Muhammad Nawaz for Applicant.

Ms. Seema Zaidi, Assistant Prosecutor-General for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1832 #

2010 P Cr. L J 1832

[Karachi]

Before Shahid Anwar Bajwa and Irfan Saadat Khan, JJ

Mir FAYAZ AHMED---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 17 to 22 of 2010, decided on 30th July, 2010.

(a) Criminal trial---

----Administration of justice---Principle---If one accused, for whatever reasons, bona fide or mala fide, is not proceeded against, other accused on this ground cannot claim that he should also be allowed to go scot-free.

Nazir Ahmed Pathan and another v. Muslim Commercial Bank Ltd., and others 2008 SCMR 899 ref.

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

----S. 409---Qanun-e-Shahadat (10 of 1984), Art. 129--Criminal breach of trust---Appreciation of evidence---Inaction on the part of Bank to initiate proceedings against co-accused was no ground to absolve the accused from the charge---Alleged pay-in-slips. signed by the accused had been brought on record through the Handwriting Expert---Accused was proved to have been posted as cashier at the relevant time in the concerned Branch of the Bank---Court in terms of Article 129 of the Qanun-e-Shahadat, 1984, could presume existence of any fact, which it would think likely to have happened, regard being had to the common course of natural events, normal human conduct and public and private business---Large number of pay-in-slips had not been accounted for in the accounts of the customers---Accused working as cashier could not be ignorant of the goings on in the Branch---Evidence of the Handwriting Expert that the pay-in-slips in question were bearing the signatures of the accused, was corroborated by the said factors and the same could safely be relied upon---All the incriminating evidence had been put to the accused in his statement recorded under S. 342, Cr.P.C., wherein he did not say that the amount was credited in the Bank Accounts, he only stated to the extent that he did not receive the amount---Signatures of accused on the pay-in-slips were sufficient to hold him guilty--Even if the amount was paid to anybody else in the Branch, then the person who signed the pay-in-slips would be equally guilty---All the appeals were dismissed in Circumstances.

Ghulam Abbas v. The State 1971 PCr.LJ 918; Muhammad Anwer v. The State 1975 PCr.LJ 1151; Abdul Rashid v. The State 1989 PCr.LJ 687; Qazi Naseem Ahmed v. The State 1992 PCr.LJ 963; Nuzhat Bibi v. The State 2008 YLR 2866; Ali Ahmed v. The State 2007 PCr.LJ 73 and Nazir Ahmed Pathan and another v. Muslim Commercial Bank Ltd., and others 2008 SCMR 899 ref.

----Art. 59---Opinion of experts---Evidentiary value---Opinion of Handwriting Expert being only an opinion was not sufficient for reaching a definite conclusion as to the alleged handwriting or the alleged signatures---Such opinion has only corroborative value and, therefore, unless independent corroboration is available conviction cannot be based on the sole testimony of Handwriting Expert.

Dr. Rana Muhammad Shamim for Appellant.

Umer Hayat Sindhu, D.A.-G. for the State.

Dates of hearing: 7th, 16th, 17th and 23rd of July, 2010.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1868 #

2010 P Cr. L J 1868

[Karachi]

Before Ghulam Sarwar Korai, J

MUHAMMAD ALI---Applicant

Versus

THE STATE---Respondent

Bail Application No. 912 of 2009, decided on 8th April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 304, 109 & 34---Qatl-e-amd and attempt to commit qatl-e-amd---Bail, refusal of---Deceased lost his life at the instigation of father of accused, while brother of accused fired from his pistol and deceased was caught hold by accused---Accused though was not nominated in F. I. R., but material collected during investigation was sufficient to hold involvement of accused in the commission of offence--- Father of accused and his brother who was main accused, were absconder--- Case had not proceeded--- Bail was refused to accused, in circumstances.

Muhammad Arshad v. The State 2006 SCMR 966; Khurram Raza v. The State 2008 MLD 547; Muhammad Rafqiue and 4 others v. The State 2008 PCr.LJ 351; Zarif Khan v. The State 2005 PCr.LJ 330; Maulana Abdul Aziz v. The State 2009 SCMR 1210; Syed Amanuulah Shah v. The State PLD 1996 SC 241; Mushtaq Hussain v. The State 2009 MLD 127; Kamran alias Kami v. The State 2009 YLR 114; Muhammad Walayat v. Zafar Ullah and 2 others 2009 PCr.LJ 1442; Ghulam Mubashir v. The State 2008 MLD 531; Inam Abbas v. The State 2007 YLR 1315; Omed Ali and another v. The State 2007 YLR 921; Muhammad Saleem v. The State 2007 YLR 1551 and Imran Sikandar v. The State 2007 PCr.LJ 1497 ref.

Riaz Ahmed Bhatti for Applicant.

Muhammad Nawaz for the Complainant.

Ms. Rahat Ahsan, Deputy Prosecutor-General for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1877 #

2010 P Cr. L J 1877

[Karachi]

Before Syed Zakir Hussain, J

Mir MURTAZA PARHIYAR---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeals Nos. S-286 and S-8 of 2009, decided on 9th July, 2010.

Penal Code (XLV of 1860)---

----S. 302/34---Qatl-e-amd---Appreciation of evidence---Evidence in the case was mainly confined to the statements of three real brothers, out of whom one was the complainant and other stood to be his supporting witness who had been produced in court while the third one had been left unexamined without any legal pretext---No independent person had been made witness either from the locality or otherwise on material aspects of the case---Presence of the witnesses and they having remained inactive, made them doubtful on point of presence or otherwise; their act of having involved the widow of their own brother, the deceased, in the murder of her husband, without any evidence and proof, also created doubt as to their fairness in the matter---Recovery of torch was effected from the complainant who allegedly handed it over to the Police, which was the only article recovered in the matter and which too was not free from doubt---Prosecution, in circumstances had not established the case beyond shadow of any reasonable doubt---Judgment of conviction and sentence against accused person, were not sustainable in law, in circumstances---Principles that chain of culprits could be let free to prevent punishment to an innocent person; a single circumstance creating doubt as to the guilt, was sufficient to acquit accused from the charge of the case; and a single reason arising out of one's evidence, was sufficient to discard his entire evidence, were applicable in the matter---Impugned judgment was set aside and accused were acquitted of the charge of the case and were released.

Noorul Haq Qureshi for Appellant.

Syed Meeral Shah, Deputy Prosecutor-General for the State.

Date of hearing: 9th July, 2010.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1885 #

2010 P Cr. L J 1885

[Karachi]

Before Ahmed Ali M. Shaikh, J

NAJAF ALI and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-338 of 2010, decided on 11th August, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 337-II(ii) & 34---Qatl-e-amd, attempt to commit qatl-e-amd and hurt by rash or negligent act---Bail, grant of---Names of both accused persons though transpired in the F.I.R., but according to the contents of F.I.R., there was dispute between the deceased and other co-accused-Said co-accused who was armed with repeater committed the murder of deceased by causing fire-arm injuries---Accused did not cause any injury to the deceased--According to F.I.R. one accused caused pistol butt blows to prosecution witness on his head and in medical certificate only one injury had been shown, which was declared as Shujjah-e-Khafifah which was punishable with two years' R.I. and bailable---Accused having not caused any injury to the deceased, he had made out a case for bail.

Fatzand Ali v. Taj and 2 others 2000 SCMR 1854 ref.

Riazat Ali Sahar for Applicant No.1.

Muhammad Sachal Awan for Appellant No.2.

Shahid Ahmed Shaikh Assistant Prosecutor-General for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1892 #

2010 P Cr. L J 1892

[Karachi]

Before Shahid Anwar Bajwa and Irfan Saadat Khan, JJ

MUHAMMAD ZUBAIR and 2 others---Appellants

Versus

THE STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 34, 35 and 42 of 2009, decided on 31st July, 2010.

Penal Code (XLV of 1860)---

----S. 365-A/34---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping or abduction for extorting property, valuable security etc. and act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution witnesses were not consistent in their depositions---Prosecution evidence was full of marked contradictions which had made the case of prosecution doubtful---Accused were entitled to the benefit of said doubt not as a matter of grace but as a matter of right---Accused were acquitted accordingly.

Tariq Pervez v. The State 1995 SCMR 1345; Muhammad Akram v. The State 2009 SCMR 230; 2001 SCMR 1700; Nazakat Perveen v. The State 2001 MLD 1169; 2001 MLD 906; 2001 MLD 1125; Yousuf v. The State 2000 PCr.LJ 1386; Waseemuddin v. The State 2001 SCMR 290; Saleem Khan and others v. The State 2001 PCr.LJ 503; Yasin v. The State 2008 SCMR 336 and PLD 1968 Lah. 841 ref.

M. Shafi Muhammadi for Appellant (in Special Criminal Anti Terrorism Appeal No. 34 of 2009).

Agha Zafir Ali for Appellant (in Special Criminal Anti-Terrorism Appeal No. 35 of 2009).

Muharram G. Baloch for Appellant (in Special Criminal Anti-Terrorism Appeal No. 42 of 2009).

Saleem Akhtar, Additional Prosecutor-General for the Respondent (in Special Criminal Anti-Terrorism Appeals Nos. 34, 35 and 42 of 2009).

Dates of hearing: 12th and 20th July, 2010.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1902 #

2010 P Cr. L J 1902

[Karachi]

Before Amir Hani Muslim and Syed Zakir Hussain, JJ

MUHAMMAD RASHEED HASSAN---Applicant

Versus

THE STATE (NAB)---Respondent

Constitutional Petition No. D-259 of 2010, Criminal Miscellaneous Appeal No. 35 and Miscellaneous No. 1026 of 2010, decided on 27th May, 2010.

Criminal Procedure Code (V of 1898)---

---Ss. 561-A & 403---Civil Procedure Code (V of 1908), Ss.11 & 13---Constitution of Pakistan (1973), Art.13--- Autrefois acquit, principle of---Foreign judgment-Accused-petitioner and accused-applicant were Manager and General Manager of two Airlines C' andP' respectively-Accused-petitioner was alleged to have paid kickbacks to the accused-applicant for lease agreement whereby Airline "C" leased five aircrafts to the Airline 'P'-Accused-petitioner's wife initiated proceedings against him in United Kingdom for her share in the money lying in his bank account there---Police of said country initiated investigations against the accused petitioner on suspicion that the money in his bank account was acquired by illegal means---National Accountability Bureau (Pakistan) joined the investigation of foreign Police and contested the case on behalf of the Federal Government of Pakistan in the foreign court alleging that the money in the bank account of the accused petitioner was received by him as kickbacks---National Accountability Bureau also filed reference in Accountability Court in Pakistan on the same allegations---Foreign Court exonerated both the accused---Accused contended that the National Accountability Bureau investigated and contested the case, was barred from filing the reference under Art.13 of the Constitution, S.403, Cr. P. C. and Ss.11 and 13 of C.P.C.---Validity---National Accountability Bureau placed material to prove its case before foreign court which had exonerated the accused---Federal Government of Pakistan did not challenge the judgment of foreign court which had attained finality and was binding on the parties---Reference could not be filed against the accused on the basis of same allegations which were subject-matter of the judgment as the accused could not be prosecuted or punished for the same offence more than once under Art.13 of the Constitution---Agreement between the two Airlines were approved by the Board of Directors of the Airline in Pakistan on the recommendation of the high-powered committee---Accused-applicant could not be presumed to influence the committee or the Board in his capacity as General Manager---Money in the accused petitioner's account had been paid to his wife in execution of the judgment/decree of foreign court; reference on the basis of the money subject-matter of said foreign judgment was barred by provisions of S.403, Cr. P. C. ---National Accountability Bureau had deliberately shifted criminal liability to the accused whereas it should have implicated the members of the high-powered committee- and the Board of Directors of the Airline in Pakistan---National Accountability Bureau had neither any material nor expertise to prove its case---Reference being barred by Art.13 of the Constitution, S.403, Cr. P.C. and Ss. 11 and 13 of C.P.C., petition under S. 561-A, Cr. P. C. and criminal miscellaneous application were allowed.

Muhammad Asif Marghoob v. Pakistan and others 2008 MLD 1735 rel.

Muhammad Irshad Khan v. Chairman, NAB 2007 PCr.LJ 1957 ref.

Chairman, NAB, v. Muhammad Irshad Khan 2008 SCMR 1012 fol.

Abdul Hafeez Pirzada, Aamir Raza Naqvi, Abdul Sattar Pirzada and Rana Ikramullah for Petitioner.

Mehmood A. Qureshi and Jamshed Iqbal for Applicant.

Muhammad Aslam Butt, Deputy Prosecutor-General, NAB along with Muhammad Wasif Bhatti, Deputy Director, NAB for the State.

Shafi Muhammad Memon, Additional Advocate-General.

2010 P Cr. L J 1958

[Karachi]

Before Muhammad Tasnim, J

NADEEM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 602 of 2010, decided on 26th July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.402, 353, 399, 324, 147, 148 & 149---Offences Against Property (Enforcement of Hadd) Ordinance (VI of 1979), Ss.17 & 3---Assembling for purpose of committing dacoity, assault or criminal force to deter public servant from discharge of his duty, making preparation to commit dacoity, attempt to commit qatl-e-amd, rioting, rioting armed with deadly weapon, offence committed by member of unlawful assembly in prosecution of common object and Haraaba---Bail, grant of---Further inquiry---Injured persons did not disclose the name of the accused when they initially/originally reported the incident to the Police; rather, accused was nominated in the F.I.R. which was registered by unexplained delay of three days raising doubt as to implication of the accused after deliberation---Statement of the injured was recorded one month after the occurrence---No recovery was effected; no empty was secured from crime. scene---Doubts as to involvement of the accused in' the commission of alleged offence made his case fit for further inquiry as contemplated under S.497(2), Cr.P.C.---Accused was admitted to bail.

Sooba Khan v. Muhammad Ajmal 2006 SCMR 62; Muhammad Ashraf v. The State 2007 YLR 515; Shahzad Ali v. The State 2002 PCr.LJ 382 and Amjad Javed v. The State PLD 2007 336 ref.

Noorduddin and another v. The State 2005 MLD 1267 rel.

Amanullah G. Malik for Applicant.

Zulifquar Ali Jatoi, D.P.G. for the State.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1962 #

2010 P Cr. L J 1962

[Karachi]

Before Gulzar Ahmed and Shahid Anwar Bajwa, JJ

Maj (Retd.) FAROOQ MAZHAR---Petitioner

Versus

FEDERAL INVESTIGATION AGENCY (FIA) and another---Respondents

Criminal Petition No. 1115 of 2010, decided on 20th April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.420, 468, 471, 403, 476, 409 & 109---Prevention of Corruption Act (II of 1947), S.5(2)---Cheating, forgery, using as genuine a forged document, corruption---Transitory bail, grant of----Without touching the merits of the case and by consent, transitory bail for a period of four weeks was granted to accused for appearing before Special Court---Transitory bail order would cease to have effect on accused first appearing before the Trial Court or on expiry of one month, whichever was earlier.

Rasheed A. Rizvi and Mehmood A. Qureshi for Petitioner.

Shahab Sarki, Standing Counsel.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1976 #

2010 P Cr. L J 1976

[Karachi]

Before Salman Hamid, J

ABDUL HAFEEZ---Appellant

Versus

MIR MUHAMMAD and another---Respondents

Criminal Acquittal Appeal No. 46 of 2010, decided on 19th July, 2010.

Penal Code (XLV of 1860)---

----Ss. 324, 109, 504 & 34---Criminal Procedure Code (V of 1898), S.417---Attempt to commit qatl-e-amd, abetment, intentional insult to provoke breach of peace, acts done in furtherance of common object---Appeal against acquittal---Appreciation of evidence---Bullet fired by co-accused allegedly hit the injured on his leg but police found the co-accused innocent and placed his name in the column No.2 of the challan-Finding of the police was not challenged by prosecution/complainant before any court of law---All prosecution witnesses were relatives of the injured; independent corroboration was, therefore, lacking in the case---Ocular account was contradicted by medical evidence---F.I.R. mentioned three firearm injuries by three separate shots but medical evidence showed injuries caused by two shots---Statement of the injured was recorded one and half months after the occurrence despite the fact that the police had visited the injured on the day of occurrence---Story of events narrated by the prosecution was improbable and dubious---Accused was not represented or defended by a counsel; Trial Court did not cross-examine the complainant on his behalf either---Weapons of offence allegedly recovered by the accused were not sent to the Laboratory for test---Prosecution failed to prove its case which could not be corroborated by independent evidence---Appeal against acquittal was dismissed in circumstances.

Naushad Ali R. Tagar for Appellant.

Naimatullah Bhurgri, State Counsel.

PCrLJ 2010 KARACHI HIGH COURT SINDH 1988 #

2010 P Cr. L J 1988

[Karachi]

Before Gulzar Ahmed and Irfan Saadat Khan, JJ

BADAR ALAM BACJIANI---Petitioner

Versus

THE STATE through Chairman NAB and another---Respondents

Constitutional petition Nos. D-179 and D-180 of 2005, decided on 18th September. 2010.

National Accountability Ordinance (XVIII of 1999)---

----Ss.9(a)(iv)(v)(vi) & 17 (d)---Criminal Procedure Code (V of 1898), S. 403---Constitution of Pakistan (1973), Arts. 13 & 199---Constitutional petition---Quashing of reference---Double jeopardy---Joint trial---One reference was filed against accused for acquiring assets beyond known source of his income and in that reference he was convicted and sentenced by Trial Court---Later on two more references were filed against accused which included the allegations already contained in earlier reference---Accused contended that it was a case of double jeopardy as he had already been tried by the court on the charges---Validity---Where number of offences had arisen out of one and the same transaction and same set of facts, the same should be tried jointly as there was commonality of purpose and, therefore, could become a cause for separate charge in a separate reference which would be violative of section 403 Cr.P.C. and Art. 13 of the Constitution---NAB had contended that fraud was result of misuse of authority in former reference against accused and charge in subsequent references also included commission of fraud by hint---Accused having been tried on such charge and convicted too, therefore, no separate reference in respect of such charge could justifiably be filed and accused could not be charged under the same---High Court quashed subsequent references filed by NAB against accused---Petition was allowed in circumstances.

Kishan Singh v. Emperor AIR 1928 PC 254; Zulfiqar Ali Shar v. The State PLD 2007 Kar. 536; Ismail A. Rehman v. Muhammad Sadiq and 3 others PLD 1990 Kar. 286; Ch. Zulfiqar Ali v. Chairman, NAB and others PLD 2003 Lah. 593 and State through Deputy Prosecutor-General, Camp Office, Karachi v. Ramesh M. Udeshi, Ex-Secretary, Board of Revenue (Land Utilization), Sindh and others PLD 2003 SC 891 rel.

A.Q. Halepota and M.A. Kazi for Petitioner.

Aslam Butt, Deputy Prosecutor-General, NAB for the State.

Date of hearing: 11th and 19th February. 2010.

Lahore High Court Lahore

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1 #

2010 P Cr. L J 1

[Lahore]

Before Ijaz-ul-Ahsan, J

Mst. RANI BIBI----Petitioner

Versus

S.H.O. and others----Respondents

Writ Petition No.14162 of 2009, decided on 14th October, 2009.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Bailiff was appointed by the Trial Court who succeeded to recover detenus from a private residence---Bailiff reported that abductees/detenus had been fettered and handcuffed and were tied with an iron rod at the time he raided said premises---On the basis of said report filed by the Bailiff, an application was filed for registration of a criminal case against the Police Official, but S.H.O. refused to do so---S.H.O. submitted in his parawise comments that alleged detenus were habitual criminals and were involved in criminal activities of various nature but failed to explain as to why an F.I.R. was lodged to the effect that detenus had escaped from Police custody and yet they were discovered in Police custody in a private torture cell---Conscious effort had been made to short circuit the process of law and punish certain people at the whims of the police which could not be allowed---Such sort of behavior would lead to lawlessness and anarchy---High Court could not step aside, allowing State functionaries to take the law in their own hands and blatantly violate rights guaranteed to citizens by the Constitution---All citizens were entitled to be treated equally and in accordance with law---No individual, entity or organization could be allowed to transgress its limits defined by the law and the Constitution---Police Officials had prima facie transgressed such limits---Authority was directed to hold detailed and in-depth inquiry into the matter---In case the allegations against respondents police officials were found to be correct, he would ensure that appropriate action was taken against all officials of the Police involved in the matter in accordance with law.

Aftab Ahmad Bajwa for Petitioner.

Rana Shamshad Khan, A.A.-G. on Court's call.

Ijaz Ahmad S.-I. with record.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 4 #

2010 P Cr. LJ4

[Lahore]

Before Jamshed Rahmat Ullah, J

GHULAM FAREED----Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, D.G. KHAN and 4 others----Respondents

Writ Petition No.5074 of 2007, decided on 24th June, 2009.

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

----S. 176---Exhumation of dead body---Time limit for---Scope---No time limit fixed for such purpose.

Medical Jurisprudence by Modi ref.

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

----S. 176---Constitution of Pakistan (1973), Art.199---Constitutional petition---Exhumation of dead body, application for---Real brother of deceased woman alleged cause of her death to be due to poison administered to her by her husband and others, and not by biting of snake---Order of Judicial Magistrate accepting such application upheld by Sessions Judge---Validity---Such application could be moved on simple ground of suspicion---Applicant and other close relatives of deceased had every right to know about real cause of her death and get her body exhumed for such purpose---Magistrate had power to disinter any dead body for discovering cause of death and he was not obliged to hear complainant or record evidence with regard to cause of death---Serious allegation of murder had been levelled against petitioner suspecting him to have murdered his deceased wife---Petitioner had denied such allegation, thus, exhumation of body of deceased would be in his interest so as to exonerate him from such allegation forever---High Court declined to interfere in impugned orders in circumstances.

PLD 2007 Lah. 176 and 1991 PCr.LJ 806 rel.

Sh. Abdul Samad for Petitioner.

Mubassher Latif Gill, A.A.-G. with Qamar Azam, S.-I. for the State.

Iqbal Faiz Qureshi for Respondents.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 8 #

2010 P Cr. L J 8

[Lahore]

Before Asif Saeed Khan Khosa, J

SHAHID MEHMOOD alias MANSHA----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.12638-B of 2009, decided on 20th October, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(1)---Penal Code (XLV of 1860), Ss.337-A(ii)/337-F(i)/337-L(ii)/452/34---Punishment of Shajjah, Ghayr-Jaifah and house-tresspass---Bail, grant of---Prohibitory clause of S.497(1), Cr. P. C. ---Scope---Accused along with his co-accused was alleged to have caused injuries to two practising lawyers---Plea raised by accused was that offences involved did not attract prohibitory clause contained in S.497(1), Cr.P.C.---Validity---Held, though grant of bail in such cases was a rule and its withholding was an exception but parties were closely related to each other and complainant and his father were both advocates who had been assaulted upon by accused and his co-accused when complainant and his father were peacefully present inside their own house---Prima facie it appeared to be a case of highhandedness displayed by accused and his co-accused which impinged upon their claim to exercise of discretion by High Court in his favour at such juncture---No universal principle existed to the effect that cases where prohibitory clause contained in S.497(1), Cr.P.C. was not attracted, bail must necessarily be granted---Accused was arrested quite recently and in peculiar circumstances, High Court declined to release accused on bail at such stage---Bail was refused in circumstances.

Imtiaz Ahmed and another v. The State PLD 1997 SC 545; Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Muhammad Siddique v. Imtiaz Begum and 2 others 2002 SCMR 442; Afzaal Ahmed v. The State 2003 SCMR 573 and Haji Muhammad Nazir and others v. The State 2008 SCMR 807 rel.

Qazi Misbah-ul-Hassan for the Petitioner.

Chaudhry Muhammad Zafar Khan, Dy. P.-G. With Jamil Akhtar, S.-I. with record for the State.

Khalid Masud Chaudhry, for the Complainant in person.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 23 #

2010 P Cr. L J 23

[Lahore]

Before Maulvi Anwarul Haq and Muhammad Khalid Alvi, JJ

FAWAD RASOOL----Petitioner

Versus

SPECIAL JUDGE, ANTI-TERRORISM COURT NO.1, GUJRANWALA and 2others----Respondents

Writ Petition No.14282 of 2009, decided on 5th August, 2009.

Penal Code (XLV of 1860)---

----Ss. 302/324/148/149/109---Anti-Terrorism Act (XXVII of 1997), Ss.6/7/23---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application filed by the petitioner for transfer of case from the Anti-Terrorism Court to the court of ordinary jurisdiction, having been dismissed, petitioner had assailed order of dismissal in constitutional petition---Occurrence had taken place on a bridge where apart from rival party, many other people were also present---Apart from three persons from the rival party two passersby lost their life, while 12 others suffered firearm injuries---Such was neither a private nor an isolated place where there was no risk for general public-Result of the occurrence itself had shown that apart from the deceased and injured passersby there must be many more who must have felt a sense of insecurity as a result of occurrence---Prima facie, it could not be presumed before recording of evidence, for the purposes of determining jurisdiction of the court that the act was not one of terrorism---In the present case, death of two passersby and injuries to 12 others, prima facie indicated that apart from them many others were also present at the time of occurrence, which must have created sense of insecurity in the general public---Constitutional petition was dismissed in circumstances.

Tariq Mahmood v. The State and others 2008 SCMR 1631 and Mohabbat Ali and another v. The State and another 2007 SCMR 142 ref.

Muazullah Khan Sherwani for Petitioner.

M.R. Sheikh, A.A.-G. and Shaukat Ali, S.-I. with record for Respondents.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 40 #

2010 P Cr. L J 40

[Lahore]

Before Ijaz-ul-Ahsan, J

ZAFAR IQBAL----Petitioner

Versus

ADDITIONAL INSPECTOR-GENERAL OF POLICE, LAHORE----Respondent

Writ Petition No.12750 of 2009, decided on 13th October, 2009.

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

----Art. 18(6)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Transfer of investigation---Partiality or arbitrary exercise of power---Failure to prove---Effect----Petitioner challenged the order of "first change of investigation" in the alleged F.I.R. on the grounds that investigation of the case had already been conducted, challan had been submitted and accused person had been summoned to face trial, change of investigation at belated stage was in utter disregard of the law and would prejudice his case---Validity---Record revealed that the impugned change was the first change of investigation---Police official was authorized under Art.18(6) of Police Order, 2002 to do so, he had exercised his powers lawfully and in the interest of justice---Nothing had been shown that might suggest partiality or arbitrary exercise of powers by police official to favour either party---Petitioner had failed to prove that the change in investigation would prejudice petitioner's complaint or affect proceedings before the Trial Court---High Court declined to interfere in constitutional petition.

Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31 and Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373 ref.

Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373; Javaid Iqbal v. Additional Inspector-General of Police, Lahore and 4 others PLD 2008 Lah. 488; Khalid Javed v. Board through Deputy Inspector-General of Police (Investigation), Lahore and 5 others PLD 2009 Lah. 101 and Muhammad Anwar v. D.I.-G. and others 2004 PCr.LJ 129 rel.

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

----Art. 18(6)---Criminal Procedure Code (V of 1898), S.156---Constitution of Pakistan (1973), Art.199---Constitutional petition---Investigation and re-investigation--Scope---Investigation and re-investigation was meant to probe and find evidence and place all such material before a court of competent jurisdiction---Court was required to apply its independent mind to such material and arrive at its own conclusion without relying on the opinions of the investigators, which were not binding on it.

Aman Ullah Ranjha for Petitioner.

Rana Shamshad Khan, A.A.-G. with Shaukat Ali, S.-I. for Respondent:

Ch. Noor Muhammad Jaspal for the Complainant.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 67 #

2010 P Cr. L J 67

[Lahore]

Before Khawaja Muhammad Sharif, C. J. and Ijaz Ahmad Chaudhry, J

Syed LAKHAT-E-HUSSAIN----Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.9800/B of 2009, decided on 20th August, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XL V of 1860), Ss.409, 420, 468, 471 & 109---Federal Investigating Agency Act, 1974 (VIII of 1975), Ss.4, 5, 8(1) & 23---Prevention of Electronic Crimes Ordinance (LXXII of 2007), Ss.4, 7, 8 & 9---Bail, refusal of---Cheating and embezzlement--- Beneficiary of fraud---Dual record, maintaining of---Accused was chief executive of a company licensed to deal in foreign currency exchange and home remittances---Accused through his company, had been receiving amounts for transfer to foreign countries transactions but neither remitted the amounts to foreign destinations nor returned the same to depositors---Accused under the garb of lawful business of foreign exchange master minded of fun for making money by adopting fraudulent and corrupt means---Accused could not shift his liability on the employees of his company because he appeared to be the sole beneficiary---Evidence was available on record that accused had been himself conducting the affairs of company---Accused himself instructed his employees to prepare two records, which transaction was to go in which record and how to deal with customers of the company---Accused and his company had been doing such business since 2003, and from its inception, such-like fake and forged transactions were being made---Number of affectees. against accused were in thousands and Federal Investigating Agency made a rough estimate of misappropriated amount of Rs.45 Billion---Accused being leader of whole campaign was not entitled to concession of bail, which was a remedy for persons who were innocent and were involved in cases with mala fide intention---Petition was dismissed in circumstance.

Ali Sabtain Fazli, Ali Zafar, Hashaam Ahmad Khan for Petitioner along with petitioner.

Amjad Pervaiz for F.I.A.

Ch. Muhammad Hanif Khatana, A.A.-G., Khawaja Salman Mahmood, A.A.-G. and Tariq Mahmood Raan for Petitioner/Appellant.

Ch. Jamshed Hussain, D.P.-G.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 89 #

2010 P Cr. L J 89

[Lahore]

Before Jamshed Rahmat Ullah, J

MUHAMMAD SULEMAN----Petitioner

Versus

DISTRICT POLICE OFFICER, SAHIWAL and 6 others----Respondents

Writ Petition No.2587 of 2009, decided on 29th June, 2009.

Criminal Procedure Code (V of 1898)---

----S. 22-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application for registration of case---Application filed by the petitioner before Justice of Peace for registration of criminal case had been dismissed---Validity---Two points needed consideration, firstly, whether the petitioner could invoke the constitutional jurisdiction of High Court, especially when the remedy of private complaint was available to him; secondly, whether the grievance of the petitioner could be redressed by bringing on record the counter version, instead of filing second F.I.R.---No doubt exercise of jurisdiction under Art.199 of the Constitution was discretionary with the court, but such discretionary powers must be exercised in good faith, fairly, justly and reasonably, having regard to all relevant circumstances---Constitutional petition in the case should have been entertained instead of disposing it of on technical grounds---Accused appeared to have mercilessly killed the wife of the petitioner and at the same time had cleverly become a complainant---Respondent had implicated the petitioner and his brother in the case alleging that they had killed the deceased---Investigating Officer had declared the petitioner and his brother innocent, whereas respondents had been found guilty of the murder of the deceased---No bar existed for the registration of second F.I.R., especially in a case where the complainant was suspected of being accused---Narration of the two. versions in the case show that both were distinct from each other and the version of the petitioner could not be treated as amplification of the version of the complainant---No bar existed in lying information one after the other to be recorded as F.I.R. when there was a disclosure of a different criminal activity---Impugned order of Justice of Peace was set aside and S.H.O. was directed to register F.I.R. on the complaint of the petitioner---Constitutional petition was allowed.

PLD 2008 Lah. 222; PLD 2005 SC 297 and 2001 SCMR 1556 rel.

Tariq Zulfiqar Ahmad Chaudhry for Petitioner.

Altaf Ibrahim Qureshi for Respondents Nos.3 to 6.

Ch. Sarfraz Ahmad Zia, Dy. P.-G. for the State.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 113 #

2010 P Cr. L J 113

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD ZAHOOR AHMAD----Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.10539/B of 2009, decided on 4th September, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.365-B & 376---Kidnapping and rape---Bail, grant of---Further inquiry---Allegation against accused was that . he forcibly took away daughter of the complainant and thereafter subjected her to rape and took her naked photographs---Accused denied all allegations and raised the plea of valid Nikah with alleged abductee---Accused in support of his said plea had placed reliance upon the Nikahnama, which had shown that her marriage with him was solemnized-e--Alleged abductee had also brought a suit for jactitation of marriage against him before a competent Family Court and against the same he had filed a suit for conjugal rights against her mentioning her to be his legally wedded wife---Both the said suits were pending adjudication before Family Court---Question of validity or otherwise of her stated Nikah with accused was sub judice before the competent Family Court---Case in circumstances fell within the ambit of further inquiry covered under S.497(2), Cr.P.C.---Accused was behind the bars for the last about three months---Accused was admitted to bail.

Altaf Hussain Qureshi Hashmi for Petitioner.

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

Muhammad Anwar, A.S.-I. with police record.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 124 #

2010 P Cr. L J 124

[Lahore]

Before Hafiz Abdur Rehman Ansari, J

IJAZ HUSSAIN----Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.1251/BC of 2009, decided on 24th September, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.489-F---Dishonouring of cheque---Bail, cancellation of-Principles-Impugned bail granting order was well reasoned based on convincing grounds---Offence under S.489-F, P.P.C. did not fall within the prohibitory clause of S.497, Cr.P.C. and maximum punishment of the offence was three years---Once the bail was allowed by the Trial Court, special/extraordinary circumstances were required for cancellation of the same---No special circumstances were found in the case which necessitated withdrawal of concession of bail granted to accused by the Trial Court---No evidence was available on record to the effect that accused had misused the concession Of bail---Mere assertion of complainant that accused had misused the concession of bail, was not sufficient to withdraw the concession of bail---Except the complainant's own affidavit, no other or any independent witness was brought before whom threats were extended to the petitioner/ complainant---It might be just personal whim and wishful thinking of the petitioner/complainant that bail should be cancelled---No evidence was on record or any affidavit of independent witnesses that accused made any efforts to destroy the evidence---Bail granting order could not be interfered with, in circumstances---Petition for cancellation of bail was dismissed.

Muhammad Asif Chouhan for Petitioner.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 138 #

2010 P Cr. L J 138

[Lahore]

Before Iqbal Hameed-ur-Rahman, J

MUHAMMAD UMAR FAROOQ and 2 others----Petitioners

Versus

STATION HOUSE OFFICER, POLICE STATION SADDAR KAMALIA and 2 others----Respondents

Writ Petition No.19204 of 2009, decided on 7th October, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Penal Code (XLV of 1860), Ss.420/468/471/475---Constitutional petition---Quashing of F.I.R.---Petitioners had sought quashing of F.I.R. registered against them---Three ingredients for quashing of F.I.R. were; that facts narrated in the F.LR. did not constitute the offences mentioned therein; that there was no probability of the conviction of accused nominated therein at the fag end of the trial; and that concerned Police Station had no jurisdiction to register the case---In the present case no such ingredient had been pointed out by the counsel for the petitioners for quashing of the F.LR.---Complainant had vehemently narrated in the F.I.R. that she had been defrauded by the petitioners by preparing forged documents---Said facts needed proper probe and the investigating agency was meant for doing that probe and not High Court under its constitutional jurisdiction---High Court could not take the role of an investigating agency and to quash the F.I.R. while exercising its constitutional power; and unless there were very exceptional circumstances, which were not found in the case---If prima facie an offence had been-committed, ordinary course of trial before the court should not be allowed to be deflected by resorting to constitutional jurisdiction of High Court---Even otherwise, the petitioners had got more than one alternate remedies before the Trial Court under S.249-A, Cr. P. C. for their acquittal, if no incriminating , material was brought before the Trial Court; or to approach the concerned Magistrate for cancellation of the case under the provisions of Cr.P.C.---In presence of alternate remedies, High Court lacked jurisdiction to interfere in the matter under Art.199 of the Constitution---Constitutional petition was dismissed.

Dr. Ghulam Mustafa v. The State and others 2008 SCMR 76 ref.

Rai Bashir Ahmad for Petitioners.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 151 #

2010 P Cr. L J 151

[Lahore]

Before Anwar-ul-Haq Pannun, J

MUHAMMAD FATEH SHER----Petitioner

Versus

NAZAR HUSSAIN, ADDITIONAL SESSIONS JUDGE, SAHIWAL and 2 others----Respondents

Criminal Revision No.111 of 2009, decided on 22nd May, 2009.

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

----Ss. 492, 493, 435 & 439---Penal Code (XLV of 1860), S.302/34---Giving up prosecution witness---Debarring complainant from appearing in the court---Appointment and powers of Public Prosecutor---Scope---Petitioner/complainant filed application alleging that one of the witnesses having been won over by accused, permission be granted to give up said prosecution witness---Another application was also moved by the mother of deceased, wherein she had made a request that she being legal heir of deceased could be allowed to give up petitioner/complainant as he had connived with the accused party---Trial Court dismissed application filed by the petitioner/complainant, but allowed application of mother of deceased to give up the complaint, debarring complainant from appearing in the court as a prosecution witness---Petitioner/complainant had filed revision petition against order of the Trial Court---On the other hand Deputy Prosecutor-General had stated that since Public Prosecutor had been designated as in charge of the prosecution, he while exercising his lawful discretion moved said application and the Trial Court could while recognizing his discretion had rightly allowed application filed by the mother of deceased filed through the Public Prosecutor---Public Prosecutor had the authority to appear and plead in the court in any of the case under his charge, which was under inquiry, trial or appeal before any court and any private counsel could only conduct the prosecution under his direction---Public Prosecutor could also make a request for withdrawal of a case, pending trial being representative of the Provincial Government---Prosecutor besides being responsible for conducting prosecution of case entrusted to him was also empowered to choose which witnesses were to be produced in a trial and which to be given up being unnecessary of having been won over, but in making that selection he must act with great responsibility---Provisions of Ss.492 & 493, Cr. P. C., though did not give expressly the authority to Prosecutor for moving application before the court in order to seek permission for giving up a witness, but were implied being in charge of the prosecution---Public Prosecutor, in circumstances was not the sole arbitrator, rather his request was always subject to the discretion of court as it was only the court which could decide the fate of such request on the basis of its reasonableness keeping in view the ends of justice---Court could not be expected to sit as a silent spectator even on notice that the non-production of certain witnesses was likely to result in miscarriage of justice.

Muhammad Waseem alias Kalu v. The State 2006 PCr.LJ 364 ref.

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

----Ss. 492 & 493---Qanun-e-Shahadat (10 of 1984), Art.150---Request made by Public Prosecutor for giving up a witness---Considerations---Request made by Public Prosecutor for giving up a witness as having been won over by accused or being unnecessary, was not unqualified rather the same was always subject to the discretion of the court---Court while passing an order for refusing or accepting the request of the Prosecutor had also to take into consideration the likelihood of causing of prejudice to any party, importance of the evidence of the witness for the just decision of the case---While doing so the court was also expected to take into consideration Art.150 of Qanun-e-Shahadat, 1984, which contemplated that a court was empowered to allow a party to cross-examine its own witness when he would stand in the situation which made him adverse to the party desiring his testimony---Such power of the Court was also meant for catering the situation where the court felt that any witness had taken a somersault and had turned hostile for his extraneous consideration---Court had to assess the propriety and genuineness of the request of the Prosecutor keeping in view the material brought before it in the facts and circumstances of the case---Matter solely vested in the discretion of the court, which had to be exercised keeping in view. that the court always inspires to find that witness told the truth and no prejudice should be caused to either of the party to, the trial for achieving the ends of justice and just decision of the case---Application moved by the petitioner/complainant for giving up prosecution witness was disallowed, whereas application for giving up petitioner/complainant filed by the mother of the. deceased, was allowed which had created an anomaly---If the petitioner/complainant was not allowed to depose before the court, there would be a serious likelihood of causing of prejudice to the case of prosecution---If both the prosecution witnesses would appear in the court and depose against their own party; could be cross-examined by the Public Prosecutor or by the complainant, under the direction of Prosecutor subject to permission of the court as mandated under Art.150 of Qanun-e-Shahadat, 1984 and the credibility of any of the witnesses could be shaken---Court having the power to draw inference from the evidence of hostile witness, therefore, Trial Court while passing the impugned order had failed in adverting to the serious implications which could arise on the basis of impugned order--Impugned order was set aside, in circumstances.

Ch. Muhammad Asghar Arain for Petitioner.

Ch. Muzaffar Hussain for the Complainant.

Nadir Manzoor Duggal, D.P.-G.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 168 #

2010 P Cr. L J 168

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Mst. ZAHOOR FATIMA----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.10799/B of 2009, decided on 8th September, 2009.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.452, 380, 506, 171, 395, 397, 148 & 149---Pre-arrest bail, confirmation of---Conduct of Police in the case of accused was not above board and mala fides of the Police were crystal clear as Police was involving the relatives of the petitioners, who were not even nominated in the case---Said relatives were being detained in illegal confinement, which had been proved during the hearing of habeas corpus petition---Allegation had been levelled that Sub-Inspector of Police had also illegally detained younger sister of the accused aged about 17 years who claimed to have been confined in a private room where she was undressed in the presence of certain people by said Sub-Inspector in the state of intoxication---Girl was also given severe beating who was then involved in the case on supplementary statement of the complainant---Mala fide of the complainant was clear that he had not only nominated accused, his daughter-in-law who had been divorced by his son along with her mother in the case and subsequently he got involved younger sister of accused and their cousin in the case who were not nominated in the F.I.R., but introduced their names in the supplementary statement in order to cover up their illegal detention---High-handedness of the Police was also clear and in such facts and circumstances possibility of false implication of accused in the case could not be ruled out---Bail before arrest was meant to protect the innocent citizens, if they were found to have been involved with mala fide intention and ulterior motives---Such was a fit case to exercise extraordinary relief in favour of accused---Ad interim pre-arrest bail already granted to accused was confirmed, in circumstances.

Iftikhar Shahid for Petitioner.

Khalid Bashir for the Complainant.

Liaqat Ali, S.-I. with the record.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 182 #

2010 P Cr. L J 182

[Lahore]

Before Kazim Ali Malik, J

LAL KHAN and another---Petitioners

Versus

STATION HOUSE OFFICER, POLICE STATION KOTWALI JHANG and 6 others----Respondents

Writ Petition No.7402 of 2008, heard on 3rd June, 2009.

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

----Ch. XIV, [Ss.154 to 176] Ss.190(1)(b), 265-D, 265-K & 249-A---Information to the police and their powers to investigate---Scope---Criminal justice system stands on the three pillars; Investigation; prosecution; and trial---For effective and smooth functioning of the system, said three pillars should be appropriately balanced within their respective allotted sphere----Under the provisions contained in Chapter XIV of the Criminal Procedure Code, 1898, the Police would investigate offences---Job of investigation consisted of spot inspection; ascertainment of facts and circumstances touching the offence under investigation; collection of evidence and apprehension of accused as and when sufficient evidence in support of the charge was made available---Absolute and inflexible principle of law was that opinion of Investigating Officer qua guilt or innocence of accused was alien to his official domain---In case the Investigator would fail to collect sufficient evidence in support of the charge/allegation, he was required to prepare negative final report under S.173 read with S.169, Cr.P.C., and to lay it before the Area Magistrate and it was prerogative of the Area Magistrate to agree or disagree with the Police investigation---Under S.190(1)(b), Cr.P.C. the Trial Court would take cognizance of the offence and not of the offender---If the Trial Magistrate would find that sufficient evidence was available against accused, he was competent to take cognizance of the offence on submission of negative/cancellation report---Contrary to that if the evidence in support of the charge was sufficient, the Investigator would submit final report under S.173 read with S.170, Cr.P.C. before the court---After submission of challan in the court, the prosecutor was required to prosecute cause of the State by producing material falling within the definition of "legal evidence"---Function of the Trial Court was to form an opinion after perusing the Police report, all the documents and statements filed by the prosecution as to whether or not sufficient grounds were available to proceed with the trial of the challaned accused in order to determine the question of his guilt or innocence---Section 265-D, Cr.P.C. governing the subject had laid down that if sufficient ground was available to proceed with the trial, the court would frame a charge against accused; on the other hand, if some material would not exist to connect the challaned accused with the alleged crime; and the Trial Court considered that probability of accused being convicted of any offence or the charge was groundless, accused would be acquitted at any stage of the case under S.265-K or 249-A, Cr.P.C.?

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

----Ss. 365-B & 362---Criminal Procedure Code (V of 1898), S.190(1)(b)---Constitution of Pakistan (1973), Art.199---Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006), S.9---Constitutional petition---Appreciation of evidence---Duty of Public Prosecutor---Scope---Complainant had alleged that accused persons had abducted or enticed away his daughter/alleged abductee from the court of Area Magistrate---Accused were challaned to stand trial under S.365-B, P.P.C. for having abducted alleged abductee---Offence of abduction punishable under S.365-B, P.P.C. as defined under S.362, P.P.C. required two essentials, removal of woman by force from one place to another under compulsion or through inducement by deceitful means and the object of such removal must be to compel her to marry any person against her will or in order that she could be forced or seduced to illicit intercourse---In order to ascertain as to whether or not alleged abductee had been removed from the court of Area Magistrate to another place forcibly or deceitfully with intent that she could be compelled to marry any person or seduced to illicit sexual intercourse, it was must for the investigator to record her statement---Accused persons, in the present case stood challaned on the charge of abduction without examining the alleged abductee---Such was a matter of record that alleged abductee had neither been examined nor cited as prosecution witness, in other words, it was a case of abduction without abductee---After conducting the investigation dishonestly and in a slipshod manner accepting the self-serving statement of the complainant as gospel truth, the challan on the charge of abduction was prepared and placed before the Public Prosecutor, who sent it up for trial---Under S.9 of Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, the prosecutor was required to scrutinize the report under S.173, Cr.P.C. in order to decide as to whether or not same was fit for submission before the court of competent jurisdiction---Public Prosecutor, mechanically submitted the challan in court without application of legal mind---Under S.190(1)(b), Cr.P.C., the court would take cognizance of the offence and not of the offender---In the present case Trial Court took cognizance of the challaned accused in utter disregard of said mandatory provisions of law---Investigating Agency, the prosecution and the Trial Court, in circumstances had completely failed to discharge the obligations cast on them by the law.?

Waqar Ilias and another v. The State PLD 1993 Quetta 49 ref.

----S. 365-B---Criminal Procedure Code (V of 1898), S.561-A---Constitution of Pakistan (1973), Art.199---Quashing of F.I.R.---Petition for---Alleged abductee appeared in court and stated in a surefooted manner that after obtaining divorce from her husband and observing the period of `Iddat', she contracted a valid marriage of her choice with accused; and that her father got registered a false case with baseless allegation of her abduction---Lady also complained that despite her said version before the Investigating Officer, the challan had been submitted in the court---Charge of abduction against accused persons, in circumstances had fallen to the ground---In case the request for quashing of the F.I.R. and the proceeding was not allowed, it would amount to permit the Investigating Agency, the prosecution and the Trial Court to blindfold the administration of criminal justice---Serious and alarming legal error of omission and commission had occurred in the investigation, prosecution and trial against accused persons and the alleged abductee---In order to enforce law of the land and to enable alleged abductee and her second husband/accused, to lead peaceful matrimonial life of their choice, it was fully justified to exercise constitutional jurisdiction and inherent powers by High Court, in their favour---Such an action by the High Court would not amount to interference in the allotted sphere of Investigating Agency, prosecution and Trial Court because the three organs of administration of justice had stepped over their respective authority---Proceedings conducted against accused persons in the case, was quashed---Police having played havoc with administration of justice after having joined hands with the complainant for some consideration extraneous to the record, penalty/compensatory cost of Rs. 1,00,000 (one lac) was imposed on complainant, investigator and the S.H.O.?

(d) Constitution of Pakistan (1973)---

----Art. 199---Criminal Procedure Code (V of 1898), S.561-A---Constitutional jurisdiction and inherent powers of High Court---Scope---High Court, in exercise of constitutional jurisdiction and inherent powers, was supposed to take effective steps to safeguard legal rights of the people and the system---Need of the hour was to nip the evil in the bud to save the people from Police autocracy---Unless and until revolutionary constitutional and legal steps were taken to check arbitrary exercise of powers by the Investigating Agency, the investigation tainted with mala fide being a festering sore could prove fatal to the whole system---In the present case, Investigators deliberately, knowingly and dishonestly concealed, suppressed and reshaped the true facts; they withheld documentary evidence adverse to the case of the complainant and forced accused persons to stand in the dock for the offence, which had not been committed by them---Arbitrary and mechanical exercise of jurisdiction and authority by the prosecution and the Trial Court also contributed towards miseries of accused persons and the alleged abductee---High Court exercised its constitutional and inherent powers in favour of accused persons, in circumstances.?

Hafiz Ansar-ul-Haq for Petitioners.

Hasham Sabir Raja, A.A.-G. for S.H.O. and others.

Zulfiqar Ali Dhuddi for Respondent No.3.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 202 #

2010 P Cr. L J 202

[Lahore]

Before Anwarul Haq Pannun, J

NAZAR HUSSAIN----Petitioner

Versus

THE STATE----Respondent

Criminal Revision No.118 of 2007, decided on 7th May, 2009.

Criminal Procedure Code (V of 1898)---

----S. 71---Penal Code (XLV of 1860), Ss.324, 334, 336 & 452---Charges of house trespass and causing hurt by sprinkling acid on body of complainant---Accused was convicted and awarded separate sentences for all such offences---Plea of accused that all such offences were made of one transaction, thus, impugned sentence awarded to him was not legal---Validity---Nothing on record was available to show that accused had any intention to commit Qatl-i-Amd of injured, rather intention of accused was to commit any of offences under Ss.334 & 336, P.P.C.-Punishment provided under Ss.334 & 336, P.P.C. was one and same as effect of Itlaf-i-udw could necessarily affect Itlaf-i-Salahiyyat-i-Udw---Provisions of Ss.334 & 336, P.P.C. had not authorised court as had been done under S.324, P.P.C. to punish offender for both offences which might constitute an offence under S.324, P.P.C.---In case of commission of an offence under two different statutes or same Act constituting offences falling within two or more definitions of law, accused could not be made to suffer separate sentences for each of such sentences, although he might be convicted for same---Imposition of two separate sentences in such cases, though might have been made to run concurrently, would be deemed to be illegal---High Court set aside impugned sentences in circumstances.

Syed Shahbaz Ali Rizvi for Petitioner.

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

PCrLJ 2010 LAHORE HIGH COURT LAHORE 218 #

2010 P Cr. L J 218

[Lahore]

Before M.A. Zafar, J

MUHAMMAD IBRAHIM----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1775/B of 2009, decided on 18th May, 2009.

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

----S. 497---Penal Code (XLV of 1860), Ss.420, 468 & 471---Prevention of Corruption Act (II of 1947), S.5---Cheating, forgery using as genuine a forged document---Bail, grant of---Ground of delay in conclusion of trial---Validity---No proceedings had taken place in trial as Trial Court had been adjourning case awaiting decision of High Court to be passed in writ petition, wherein complainant had obtained injunction order---Early conclusion of trial was, right of every accused and he could not be put at mercy of prosecution or complainant--Offence charged for being punishable upto seven years did not fall within prohibitory clause of S.497, Cr. P. C. ---Accused was in jail for last three years and 10 months without any trial---Accused was not responsible for delay in conclusion of trial---Commencement of trial in near future was not in sight---High Court granted bail to accused in circumstances.

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

----S. 497---Pre-trial release of accused on bail---Concept stated.

The concept of pre-trial release of the accused has been developed on three presumptions: firstly, the accused is presumed to be innocent till he is found guilty; secondly, the accused should have right to prepare his defence and prove his innocence before the Court of trial; and thirdly, the accused should not be punished before finding him guilty.

Rana Zubair Afzal for Petitioner.

Ch. Imran Raza Chadhar for the Complainant.

Malik Nazar Abbas, D.P.-G. with Abdul Sattar A.S.-I./A.C.E.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 261 #

2010 P Cr. LJ261

[Lahore]

Before Raja Muhammad Shafqat Khan Abbasi, J

MUHAMMAD FAROOQ QURESHI----Petitioner

Versus

JUDICIAL MAGISTRATE SECTION 30 and 2 others----Respondents

Writ Petition No.2112 of 2009, decided on 22nd June, 2009.

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

----Ss. 496-A & 380---Criminal Procedure Code (V of 1898), Ss.157, 158, 161 & 173---Constitution of Pakistan (1973), Art.199---Enticement and theft---Constitutional petition---Investigation of case---Report of Police---Cancellation of report prepared by the Police---Petitioner lead assailed order passed by the Magistrate whereby he had disagreed to the cancellation report prepared by the Police---Alleged abductee had stated before the Magistrate as well as Investigating Officer in her statement under Ss.161 & 164, Cr.P.C. that neither anybody had abducted her nor committed Zina with her---Police prepared a cancellation report and placed it before the Magistrate who disagreed with said report and ordered to complete challan under S.173, Cr.P.C. and to produce before the court---Validity---Investigation of a criminal case and the resultant arrival by the Police at a conclusion regarding the guilt or innocence of accused lay within the domain and prerogative of the Police over which no other authority had any control---Magistrate while disagreeing with the discharge report had travelled beyond the jurisdiction in directing the Police to submit the challan against accused---Magistrate was not supposed to direct arrest of accused or submission of the challan or recording of evidence---Matter should be left to the Investigating Agency, to submit report under S.173, Cr.P.C.---It would be open for the Investigating Officer to record his own opinion regarding the guilt or innocence of accused in his report under S.173, Cr.P.C. and if the final opinion of the Investigating Officer was that accused was guilty, then he would be at liberty to submit the challan accordingly---Impugned order to the extent of directing the Police to submit the challan was without jurisdiction and lawful authority and same was set aside---Proceedings initiated on the basis of said order were declared to be without legal effect---S.H.O. concerned was directed to file report under S.173, Cr.P.C. without being influenced by the impugned order.

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

----S. 173---Report of Police Officer---Scope---Challan was not the substitution of report under S.173, Cr.P.C.-Challan could only be submitted when Investigating Agency would come to the conclusion that accused was found guilty and recommended to be tried under the relevant offence, whereas if accused was not recommended to be tried in the case, then the report under S.173, Cr.P.C. was to be submitted without any challan---No power vested with any court including High Court to override the legal command and to direct S.H.O., either not to submit investigation report (challan) or to submit the report in a particular manner i.e. against only such persons as the court desired or only with respect to such offences as the court wished.?

Ch. Muhammad Ashraf v. The State 2006 PCr.LJ 518; Shahid Rashid and others v. Station House Officer and others 2005 PCr.LJ 1559; Ahmad Nawaz and another v. The State and another 2001 .MLD 1330; Muhammad Iqbal v. The State 2007 MLD 995; Muhammad Shabbir alias Shabo and 5 others v. Judicial Magistrate Duniyapur, District Lodhran and 4 others 2007 YLR 1373 and Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31 rel.

Malik Javed Akhtar Wains for Petitioner.

M. Arif Alvi for Respondents.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 268 #

2010 P Cr. L J 268

[Lahore]

Before Sardar Tariq Masood, J

MUHAMMAD BAKHSH----Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and others----Respondents

Criminal Revision No.98 of 2009, decided on 2nd December, 2009.

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

----Preamble, Ss.3, 4 & 5---Object of Illegal Dispossession Act, 2005 ---Provisions of Illegal Dispossession Act, 2005---Applicability---Scope---Provisions of Illegal Dispossession Act, 2005, were not only applicable to the land grabbers, qabza groups and other persons, habitually indulging in such activities, but to all persons illegally occupying or in possession of premises---If from summary of evidence and documents filed by the complainant and from the contents of the complaint, sufficient reasons existed to proceed with the trial of the case; Trial Court could strictly act under the provisions of Illegal Dispossession Act, 2005---All cases of illegal occupants without any distinction would be covered by the Illegal Dispossession Act, 2005---Object of said Act was to protect the property of the lawful occupants from the illegal and unauthorized occupants---Even if a relative took possession of a property through illegal and unauthorized means from . lawful owner, the provisions of Illegal Dispossession Act, 2005 would be attracted---Provisions of Illegal Dispossession Act, 2005 were not only applicable to land grabbers, qabza groups or other persons habitually indulging in such activities, but to all persons illegally occupying or in possession of any person.

Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah.231; Rahim Tahir v. Ahmad Jan and 2 others PLD 2007 SC 423; Wali Muhammad v. Additional Sessions Judge and 5 others PLD 2008 Lah. 392 and Malik Muhammad Naeem Awan v. Malik Aleem Majeed and 5 others PLD 2008 Lah. 358 ref.

(b) Administration of justice---

----Civil and criminal proceedings---Both the proceedings of civil and criminal could be initiated side by side and courts could not stifle one proceedings for the other.

Rehmatullah v. Abdul Aziz and another 1974 PCr.LJ 541; Sh. Ahmed v. Sh. Muhammad Yunus 1971 PCr.LJ 331; Malik Muhammad Naeem Awan v. Malik Aleem Majeed and 5 others PLD 2008 Lah. 358; Seema Fareed and others v. The State and another 2008 SCMR 839 and Rafique Bibi v. Muhammad Sharif and others 2006 SCMR 512 ref.

Sardar Muhammad Shamim Khan for Petitioner.

Abdul Rasheed Rashid for Respondents Nos.2 and 3.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 274 #

2010 P Cr. L J 274

[Lahore]

Before Hafiz Abdur Rehman Ansari, J

GHULAM HUSSAIN----Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, DUNYAPUR DISTRICT LODHRAN and 4 others---Respondents

Writ Petition No.7215 of 2009, decided on 22nd October, 2009.

Penal Code (XLV of 1860)---

----Ss. 367-A & 377---Criminal Procedure Code (V of 1898), S.435---Constitution of Pakistan (1973), Art.199---Abduction and unnatural offence---Constitutional petition---Deletion of offence---Case against respondents/accused was got registered by the petitioner/complainant under Ss.367-A & 377, P.P.C.---Illaqa Magistrate vide order deleted the offence under S.367-A, P.P.C. and sent accused persons to judicial lock-up---Revision petition filed by the petitioner/complainant before the Additional Sessions Judge having been dismissed, petitioner/ complainant had filed constitutional petition---Validity---Order passed by the Magistrate had revealed that it was passed after hot contest---Both orders, passed by the Magistrate and Additional Sessions Judge, respectively were well-reasoned and based on settled law---Removal of a child only a few paces with object and purpose to commit sodomy, not at all to remove or take away from lawful guardianship would not make an additional offence of abduction---Offence under S.367-A, P.P.C. could not be attracted---Counsel for petitioner during arguments conceded that victim boy was taken away to a place at a distance of 15/16 yards which was not far away---No judicial error having been found in both the orders---Constitutional petition was dismissed.

Ali Nawaz v. The State 1988 SCMR 601; Shamas Saeed Ahmad Khan v. The State 1985 SCMR 1822; Muhammad Akhtar v. Muhammad Rafique 1986 SCMR 533 and Abdul Wadood v. The State 1986 SCMR 1947 ref.

Raja Sultan Khurram-uz-Zaman for Petitioner.

Hussain Raza Rizvi for Muhammad Yasir victim.

2010 P Cr. L J 340

[Lahore]

Before Sardar Tariq Masood, J

GUL MUHAMMAD and others----Petitioners

Versus

THE STATE and others----Respondents

Criminal Miscellaneous Nos.1982/B, 1979/B and 1980/B of 2009, decided on 16th December, 2009.

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

----S.497---Penal Code (XLV of 1860), Ss.302/324/337-H(ii)/148/149---Qatl-i-amd and attempt to commit Qatl-i-amd---Dismissal of bail application as withdrawn---Counsel for accused persons having not pressed bail petition to the extent of one of the accused persons, bail application to the extent of said accused was dismissed as withdrawn.

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

----S. 497---Bail---Rule of consistency---Scope---Rule of consistency was always taken into consideration by the courts, because a person could not be denied for the grant of bail whose case was at par with, an accused who had already been granted bail---Courts had to give equal treatment to accused having one and the same role in the same case, even according to the Injunctions of Islam and Constitution of Pakistan, equality between a person was to be maintained and courts were always guardians for the right of people.

Muhammad Fazal alias Bodi v. The State 1979 SCMR 9; Khadim Hussain v. The State 1983 SCMR 124; Manzoor Ahmad and others v. The State PLJ 1999 Cr.C. (Lahore) 570 and Muhammad Daud and another v. The State and another 2008 SCMR 173 rel.

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/337-H(ii)/ 148/149---Qastl-e-amd and causing injuries---Bail, grant of---Further inquiry---Case of three accused persons, was at par with that of their three co-accused who had already been allowed bail by High Court---Even otherwise State Counsel and counsel for the complainant could not distinguish the role of said accused persons from the role of their co-accused---Record had revealed that accused persons were not named in the F.I.R. and they were implicated through supplementary statement---Subsequent statement of the complainant involving accused in the case would be deemed to be a false improvement which made the case of said accused persons to be of further inquiry--Accused persons , were entitled for the concession of bail on the principle of consistency and also on the ground that their case became of further inquiry---Other two accused persons though were alleged to be armed with fire-arm weapons and joint ineffective firing was attributed to them, but they had not caused any injury to the deceased or the injured prosecution witness---All accused persons, except one whose bail application was not pressed and was dismissed as withdrawn, were granted bail.

Falak Sher alias Sheru v. The State 1995 SCMR 1350; Mumtaz Hussain and 5 others v. The State 1996 SCMR 1125 and Faraz Akram v. The State 1999 SCMR 1360 ref.

Muhammad Akram Qureshi and Malik Sadiq Mehmood Khurram for Petitioners.

Ch. Haq Nawaz, D.D.P.P. along with Niaz Ali, S.-I. for the State.

Muhammad Sharif Bhatti and Muhammad Afzal Wattoo for the Complainant,

PCrLJ 2010 LAHORE HIGH COURT LAHORE 357 #

2010 P Cr. L J 357

[Lahore]

Before Syed Mansoor Ali Shah and Sardar Tariq Masood, JJ

MUHAMMAD IQBAL----Appellant

Versus

STATION HOUSE OFFICER and others----Respondents

I.C.A. No.99 of 2009, decided on 2nd November, 2009.

Penal Code (XLV of 1860)---

---Ss. 420/468/471---Criminal Procedure Code (V of 1898), Ss.195(1)(c) & 199---Constitution of Pakistan (1973), Art.199---Cheating, forgery and using as genuine a forged document---Quashing of F. I. R. ---Intra-Court Appeal---Appellant had sought setting aside of impugned order of the High Court whereby his constitutional petition filed by him for quashing of F.I. R. was dismissed by the High Court---In the present case, alleged forged and bogus sale-deed was prepared much prior to filing of civil suit by the appellant---Said forged sale-deed came into the notice of the complainant when he applied for issuance of Fard---Revenue Authority who probed into the matter, found that the sale-deed was false one; in such situation; as the said document was not prepared during the proceedings in the civil suit, S.195(1)(c), Cr.P.C. was not applicable at all---Civil and the criminal proceedings could be initiated side by side and courts could not stifle one proceeding for the other---High Court had ample power to quash the F.I.R. at any stage, but when challan of the case was submitted in the court, then other remedies were available to the party for redressal of its grievance---High Court then could not quash the matter and the parties would be directed to avail other remedies available to them---When there was a factual controversy, it should be left upon the Trial Court to resolve the same---No illegality or perversity was found in the impugned order of the Single Judge of the High Court to interfere---Intra-Court Appeal against said order was dismissed.

Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122; Rehmat Ali and others v. Station House Officer and others PLD 2004 Lah. 65; Arif Rafiq v. The State 1992 PCr.LJ 679; Agha Nadeem and others v. Province of Punjab and others 2005 MLD 1366; Muhammad Ishaque Khan v. S.H.O. 2005 MLD 1816; Seema Fareed and others v. The State and another 2008 SCMR 839; Rafique Bibi v. Muhammad and others 2006 SCMR 512; Malik Khuda Bakhsh v. The State 1995 SCMR 1631 and Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 ref.

Mrs. Samina Qureshi for Appellant:

PCrLJ 2010 LAHORE HIGH COURT LAHORE 373 #

2010 P Cr. LJ 373

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD AKHTAR and another----Petitioners

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.3287/B of 2009, decided on 12th October, 2009.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.365-B & 376---Kidnapping, abduction or inducing woman to compel her for marriage and rape---Bail, grant of---Alleged abductee although in her statement under S.161, Cr.P.C. had charged the accused mentioned in the F.I.R. with her abduction and performance of forcible Nikah, yet her Nikah was prior in time than the date of the alleged incident---Legitimacy of the said Nikah, therefore, would be gone into in due course of trial--No allegation of Zina had been made against the accused---Accused had been found innocent by the D.S.P. in investigation---Further probe was called for into the guilt of accused as contemplated under S.497(2), Cr.P.C.---Commencement of trial would not stand in the way of grant of bail to accused, as he had been found entitled to the same as a matter of right---Accused were not previous convicts---Accused were allowed bail in circumstances.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.365-B & 376--Kidnapping, abduction or inducing woman to compel her for marriage and rape---Bail---Commencement of trial---Effect---When accused is found entitled to bail on the basis of his case being of further inquiry, he cannot be refused bail due to commencement of trial---Right of accused has to be preferred over the practice.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

Ch. Saghir Ahmad for Petitioners.

Ishfaq Ahmad Malik, D.P.-G. for the State and Zahoor Ahmad S.-I. with police record.

Raja Sultan Khurram-uz-Zaman for the Complainant.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 379 #

2010 P Cr. LJ 379

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD ILYAS----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.3160/B of 2009, decided on 26th October, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324/337-F(vi)/148/149---Attempt to commit Qatl-i-amd and Munaqqilah---Bail, grant of---Accused was ascribed a fire-arm injury to the injured witness on his right leg near his knee---Injury falling within S.337-F(vi), P.P.C. did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Accused was a previous non-convict and was behind the bars for the last more than six months---Bail was allowed to accused in circumstances.

Umar Hayat v. The State and others 2008 SCMR 1621; Nosher and others v. The State 2005 MLD 1071; Shabeer Ahmad alias Shibli v. The State 1999 PCr.LJ 1348; Muhammad Akbar alias Ghulam Akbar v. State 2007 YLR 1313 and Khalil Ahmad and others v. The State 2007 YLR 2688 ref.

Malik Muhammad Rarnzan Khalid for Petitioner.

Ishfaq Ahmad Malik, D.P.-G. for the State and Muhammad Hanif, A.S.-I. with police record.

Muhammad Khalid Farooq for the Respondent No.2/Complainant.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 388 #

2010 P Cr. L J 388

[Lahore]

Before Ch. Iftikhar Hussain, J

AZHAR WAHEED----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.3284/B of 2009, decided on 14th October, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.393 & 324---Robbery and attempt to commit Qatl-i-amd---Bail, grant of---Accused was not named in the F.I.R.---Although accused was picked up in the identification parade, yet the same was held after one year and three months of the occurrence---No recovery was effected from the accused---None of the injuries sustained by the complainant was ascribable to accused---Case of accused was open to further inquiry into his. guilt within the meaning of S.497(2), Cr.P.C.---Accused was in jail for the last more than six months and his trial had not so far commenced---Accused was admitted to bail in circumstances.

Mehr alias Fazal Muhammad and 2 others v. The State 1978 PCr.LJ 176 ref.

Sardar Taj Muhammad Khan Langah for Petitioner.

Ashfaq Ahmad Malik, D.P.-G. for the State and Muhammad Ishaq, Inspector/S.H.O. with police record.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 402 #

2010 P Cr. L J 402

[Lahore]

Before Khawaja Muhammad Sharif, C.J. and Manzoor Ahmad Malik, J

AZHAR ZIA MIAN----Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU, LAHORE and another----Respondents

Writ Petition No.3546 of 2007, decided on 18th November, 2009.

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

----Ss. 9, 10 & 25---Constitution of 'Pakistan (1973), Art.199---Constitutional petition--- Corruption and corrupt practices---Reference---Appreciation of evidence---Allegations contained in reference submitted before the Accountability Court against accused, were that they established an office with the name and style of "M/s Indus Valley Rice Mills", but used said office to carry out the business of illegal Banking---In response to the said, offer, 385 innocent persons delivered huge amount of rupees twenty six crore seventy-eight lac and forty-four thousand---Petitioners stopped business when the State Bank of Pakistan intervened---Record had revealed that even 12 post dated cheques were given to some of the affectees for monthly profit and return of part of principal amount, but almost all the cheques, so issued were dishonoured by the Banks on their presentation---About 385 families had been ruined at the hands of the petitioners, six hundred and eighty claims were submitted and all the said persons had. fully implicated the petitioners---Offence allegedly committed by the petitioners, fell within the definition of "corruption and corrupt practices", which was fully covered by clauses (ix) (x) to subsection (a) of S.9 of National Accountability Ordinance, 1999, and punishable under S.10 of said Ordinance---Reference, in circumstances, had properly been filed before the Accountability Court and was maintainable.

Anwar Saifullah Khan v. The State and 3 others 2001 SCMR 1040; Ch. Zulfiqar Ali v. The State PLD 2002 SC 546; Khan Haroon Resikh v. The State and 2 others PLD 2003 Lah. 517; Federation-of Pakistan through Secretary, Ministry of Interior, Islamabad v. Mrs. Amatul Jalil Khawaja and others PLD 2003 SC 442; Sardar Muhammad Naseem v. Judge,, Accountability Court, Lahore PLD 2006 Lah. 162; Abdul Aziz Khan Niazi v. The State through Chairman, NAB, Islamabad PLD 2003 SC 668 and Faisal Hussain Butt v. The State and another 2009 SCMR 133 ref.

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

----S. 497---National Accountability Ordinance (XVIII of 1999), Ss.9, 10 & 25---Corruption and corrupt practices---Bail, refusal of---Delay in trial---Effect---Principles---Charge in the case was framed with delay of about five months---Because of different applications filed by accused these could not be timely disposed of mainly on account of non availability of the counsel for accused---After framing of charge, reference was, adjourned time and again and many adjournments were taken either on behalf of accused or his counsel---Accused being responsible for delay in disposal of the Reference, only the prosecution could not be held responsible for the delay in conclusion of the trial---Regarding contention of counsel of accused for release of accused on bail to discharge his liabilities qua return of payments of the victims, it was suffice to say that for the said purpose accused had remedy of "Plea-Bargain" as available under S.25 of the National Accountability Ordinance, 1999---Disposal of a criminal case expeditiously, no doubt was the right of every accused, but delay, per se, would not entitle every accused for the grant of bail after arrest---Two factors were very material and relevant, firstly, who was responsible for the delay in the conclusion of the trial---If the delay had been caused or occasioned because of acts/steps of the prosecution, then accused could justifiably claim bail, but, if he himself was also responsible for the said delay, then the situation would be different---Secondly, the nature and gravity of allegations against accused were also to be considered---Trial Court in the case after explaining each. and every adjournment, had categorically stated that accused was responsible for the delay in disposal of the Reference---Allegations against accused persons were that they had cheated public at large, which allegations were serious and heinous in nature---Accused had misappropriated huge amount collected from the ordinary persons on the promise of giving then high profits, whereby hundreds of people had been deprived of their hand earned savings---Strong apprehension existed that, if accused were allowed bail, then they would flee from the country to avoid process of law---Delay in conclusion of the trial was not only because of the prosecution, but accused side was also responsible for such a delay---Bail petition was dismissed, in circumstances.

A.K. Dogar with Muhammad Yousaf Chughtai for Petitioner.

Mian Muhammad Imran and Ch. Waheed Khan Special Prosecutors.

Khurram Ehsan Malik for Affectees.

Date of hearing: 12th November, 2009.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 419 #

2010 P Cr. L J 419

[Lahore]

Before Khawaja Muhammad Sharif, CJ

MUHAMMAD SALEEM KAMBOH----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.14995/B of 2009, decided on 3rd December, 2009.

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

----S. 497---Penal Code (XLV of 1860), Ss.419/420/468/471---Cheating by personation, forgery and using as genuine a forged document---Bail, refusal of---Accused by producing a bogus result card before Punjab Bar Council had got a licence for legal practice and had been looting the innocent persons by posing himself to be an Advocate---Result card was proved to be bogus one after inquiry---Accused till date had not produced his degree issued by Punjab University to prove having passed LL.B. examination---Such persons could not be let loose on the society to repeat the offence---Offence charged against accused, no doubt, did not fall within the prohibitory clause of S.497(1), Cr. P. C. where grant of bail was a rule and refusal an exception, but case of accused in view of above circumstances was an exceptional case and an exception could be used against him---Challan had been submitted in the court, charge had been framed and the case was fixed for prosecution evidence---Bail was declined to accused in circumstances.

Tariq Bashir v.. The State PLD 1995 SC 34 ref.

Shameel Ahmad v. The State 2009 SCMR 174; Ijaz Ahmad v. Muhammad Aslam and others 2009 PCr.LJ 1140 and Izat Khan and 2 others v. The State 2001 PCr.LJ 291 rel.

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

----S.497---Bail---Cases not falling within the prohibitory clause of S.497(1), Cr.P.C.---Practice and procedure---Grant of bail in cases not hit by the prohibition contained in S.497(1), Cr.P.C. is not a rule of universal application---Each case has to be dealt with on its own facts and circumstances---Court may decline bail to an accused in such cases in the presence of recognized exceptional circumstances---However, exercise of discretion by the court in the matter of granting bail to accused cannot be perverse, fanciful or arbitrary.

Shameel Ahmad v. The State 2009 SCMR 174; Ijaz Ahmad v. Muhammad Aslam and others 2009 PCr.LJ 1140 and Izat Khan and 2 others v. The State 2001 PCr.LJ 291 ref.

Manzoor Qadir for Petitioner.

Rana Bakhtiar Ali, D.P.-G. along with Boota S.-I. for the State.

Ch. Muhammad Ikram for the Complainant.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 447 #

2010 P Cr. LJ 447

[Lahore]

Before Ch. Iftikhar Hussain, J

ZAHID ABBAS----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous 'No.4003/B of 2009, decided on 7th December, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.496-A & 376---Trespassing and abduction---Bail, grant of---Further inquiry---All co-accused had been declared to be innocent in the case and were placed in column No.2 of the report, under S.173, Cr.P.C.---Police after investigation had deleted offence under Ss.496-A & 376, P.P.C. and substituted the same with another provision, which not only was bailable, but also not covered under the prohibitory clause of S.497(1), Cr.P.C.---Trial of accused had not commenced---All co-accused in the case having been found to be innocent---Story as contained in the F.I.R., was not the whole truth which was to be thrashed at the trial cautiously---Case against accused called for further inquiry into his guilt covering under S.497(2), Cr.P.C.---Case for enlargement of accused on bail, having been made out, he was admitted to bail, in circumstances.

Muhammad Iftikhar-ul-Haq Khawar for Petitioner.

Shahid Iqbal, D.D.P.P. for the State.

Abdul Salam Alvi for Respondent No.2/Complainant.

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

PCrLJ 2010 LAHORE HIGH COURT LAHORE 456 #

2010 P Cr. L J 456

[Lahore]

Before Mazhar Hussain Minhas, J

GHULAM YASIN----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.432/B of 2008, decided on 23rd June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Qatl-i-amd---Bail, grant of---Accused was named in the F.I.R. and he was attributed Saria blows to deceased on his left arm and other parts of his body, but no blunt weapon injury had been found on the person of the deceased, except a lacerated wound 5 c.m. x 3 c.m. on the right foot near the heel---All the remaining injuries were fire-arm injuries, which were attributed to co-accused---Doctor had opined in the post-mortem report that the death of accused occurred due to the fire-arm injuries and the blunt weapon injuries had not been declared contributory to the death---Possibility of false involvement of accused, being real brother of principal accused could not be ruled out in circumstances---Question of sharing common intention or vicarious liability of accused for commission of offence required further probe---Accused was behind the bars for more than two years, but not a single witness had been examined by the prosecution---Accused was ordered to be released on bail, in circumstances.

Ch. Muhammad Anwar-ul-Haq for Petitioner.

Sarfraz Ahmad Zia; D.P.-G. for the State.

Altaf A.S.-I. with record.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 475 #

2010 P Cr. LJ 475

[Lahore]

Before Ch. Iftikhar Hussain, J

ASHIQ MUHAMMAD----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.3421/B of 2009, decided on 24th November, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.395/412---Dacoity---Bail, grant of---Further inquiry---Accused was not named in the F.I.R. and was not put to any identification test---Accused was involved in the case on the statement of his co-accused---Question of evidentiary value of such statement, was to be gone into at trial---Except such statement, no other implicating evidence was available on the record against accused---Question that recovery was planted upon accused, was seriously thrashable/considerable at trial and it was, in circumstances, to be ascertained if accused could ultimately be held liable for the alleged offence---Case of accused, in circumstances, was covered under subsection (2) of S.497, Cr.P.C., calling for further inquiry into his guilt---Accused was behind the bars for the last more than six months---Accused was admitted to bail, in circumstances.

Iftikhar alias Bodi v. The State 2005 YLR 527 ref.

Haumyun Said Rasool for Petitioner.

Ishfaq Ahmad Malik, Dy. P.-G. for the State.

Salah-ud-Din, A.S.-I. with police record.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 489 #

2010 P Cr. L J 489

[Lahore]

Before Sh. Azmat Saeed, J

MANZOOR HUSSAIN and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No.1993/B of 2007, decided on 25th September, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/337-A(ii), 337-F(v)/34---Qatl-i-amd, Shujjah and Ghayr Jaifah---Bail, grant of---Further inquiry---Complainant and both accused persons were real brothers and the motive clearly spoke of family dispute over an intending marriage to which complainant was least inclined---Apparently, a wide net had been thrown to involve even the aged man from the family of accused side---Both accused persons were in continuous detention ever since 12-12-2005 without any progress in the trial and the conclusion thereof was not in sight in the near future, despite issuance of direction by the High Court for its expeditious conclusion---Further detention of accused would be hardly significant for the prosecution case---Facts and circumstances of the case had attracted the provisions of further inquiry; and it was a fit case for interference and exercise of discretion in favour of accused persons---Accused were directed to be released on bail.

Ch. Muhammad Anwar-ul-Haq for Petitioner.

Sh. Imtiaz Ahmed for the State.

Muhammad Akram, A.S.-I. Police Station Sarwar Shaheed with police file.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 500 #

2010 P Cr. L J 500

[Lahore]

Before Ch. Iftikhar Hussain and Hafiz Abdul Rehman Ansari, JJ

MUHAMMAD YOUSUF----Appellant

Versus

THE STATE and another----Respondents

Criminal Appeal No.540, Murder Reference No.64 and Criminal Miscellaneous No.1006-M of 2009, decided on 10th November, 2009.

Penal Code (XLV of 1860)---

----Ss.302(b), 309, 310, 324 & 337-F(iii)---Criminal Procedure Code (V of 1898), S.345---Qatl-i-amd--Compromise---Appreciation of evidence---Compromise---Sessions Judge in his report had opined that all the legal heirs of deceased had pardoned accused in the name of Almighty Allah and they had no objection on acquittal of accused-Sessions Judge had also reported that the interest of the minor sons and daughters of the deceased had been safeguarded by having Defence Saving Certificates in their favour---Court had also concluded that the compromise between the parties was genuine and voluntary and there was no other legal bar was in acceptance of the same---On the basis of such compromise between accused and the legal heirs of the deceased and injured, impugned judgment to the extent of conviction and sentence of accused was set aside and accused was acquitted of the charge and was set at liberty.

Sardar Mehboob for Appellant.

Sarfraz Ahmad Zia, D.P.-G. for the State.

Mrs. Zeenat Khan for the Complainant.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 504 #

2010 P Cr. L J 504

[Lahore]

Before Zubda-tul-Hussain, J

MUHAMMAD NAEEM----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.8029/B of 2008, decided on 8th October, 2008.

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

----S. 497---Penal Code (XLV of 1860), Ss.420/468 & 489-F---Cheating, forgery and dishonestly issuing a cheque---Bail, refusal of--Contentions of accused were that in the event of registration of the case under Ss.420/468, P.P.C., there was no valid occasion for dragging accused in another case under S.489-F, P.P.C. on the same facts and circumstances, and that same was misconceived, because both the matters had different and independent entity---Initially accused had allegedly persuaded the complainant to purchase the land/plot for Rs. 65 lacs as against the alleged actual price of Rs.26,80,000---Set of offence under S.420, P.P.C. ended here and that warranted registration of a case under S.420, P.P.C. etc. only--Other set of facts and the offence cropped up when subsequently with a view to settle the matter accused issued the two cheques and the same were dishonoured on presentation to the Bank---Issuance of cheque with the alleged dishonest intention was an independent offence which validly warranted registration of a case under S.489-F, P.P.C.---Where the various alleged criminal actions of a person had given rise to more than one offence and each offence had its own independent inception, registration of independent cases for 'each of such offences would not be prohibited by law-- Offence committed in the same series of transactions of fact could be jointly prosecuted by one F.I.R., but when a subsequent offence had been committed independently, it was not necessary that it be clubbed with the earlier offence/F.I.R.---Registration of independent F.I.R. under S.489-F, P.P.C. was a valid instrument for putting the machinery of law into force because the commission of fraud which was the subject-matter of earlier F.I.R. was based upon misrepresentation of facts and extortion of extra money from the complainant and the subsequent issuance of the cheques with dishonest intention was a fresh offence liable under S.489-F, P.P.C..---As two different cases had been registered in relation to the grievance of the complainant, accused was not entitled for the grant of bail.?

(b) Criminal trial---

----Offence committed in the same series of transactions of fact could be jointly prosecuted by one F.I.R., but when a subsequent offence had been committed independently, it was not necessary that it be clubbed with the earlier offence/F.I.R.?

----S.497---Penal Code (XLV of 1860), Ss.420/468 & 489-F---Post?-arrest bail---Bail, refusal of---Contention of accused was that no liability against him arose under S.489-F, P.P.C. as the matter primarily from its inception was a business transaction between the parties---Validity---No doubt the normal business transaction should never be made the basis or subject of criminal liability and disputes of such nature should better be resolved through the measures other than the criminal litigation, but the present case could not be termed as a pure civil dispute as it involved the alleged mens rea of accused regarding the alleged dishonest and fraudulent representation of facts and then of dishonestly issuing the cheques which were going to be bounced later on---In circumstances the principle that the matter of business transactions, the liability under S.489-F, P.P.C. could not be placed upon accused, could not be applied to the rescue of accused---Contention of accused that the nature of payment having not yet been determined, the case was of one of further enquiry against accused was misconceived; because payments as such were neither disputed nor their quantum was in controversy---Accused received Rs. 65,00,000 and issued cheques for Rs.38,20,000---Cheques having been issued by accused regarding the discharge of liability, there was no ambiguity about the nature of the payment nor for that reason it could be termed as a case of further enquiry against accused.?

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

----S. 497---Penal Code (XLV of 1860), Ss.420/468 & 489-F----Bail, refusal of---Offence alleged against accused carried a liability for a sentence .which could extend to imprisonment for three years and in said circumstances the prohibition of S.497, Cr.P.C. was not attracted to it; but it could also not be denied that; in the cases which were not covered by the prohibitory clause of S.497, Cr.P.C., grant of bail was a rule and refusal was an exception, yet it also could not be denied; that bona fide or mala fide of the parties to a litigation were never irrelevant---Mala fide would vitiate the most sacred transactions---Out and out mala fide which injured not only the valuable rights of a party, but also caused severe mental and psychological agony to the affected persons in addition to any financial loss had also to be given due consideration---If the people were simply allowed concession, such as the bail, on the mere ground of absence of prohibition of S.497, Cr.P.C. while the circumstances had shown the gravity of the matter not only for an individual, but spoiling the economic and social life of his whole family, that could tend to perpetuate the commission of offence of the same nature---Alleged extortion of heavy amount of Rs.38,20,000 supplemented by dishonest issuance of unholy cheques rendered it a case of grievous nature---Grant of bail being a discretionary concession would not be warranted in such situation. ?

Waseem Bari v. The State 2008 YLR 760 and Muhammad Tariq Javed v. The State 2008 YLR 947 ref.

Rana Muhammad Afzal for Petitioner.

Mian Ismatullah, Dy.P.-G. Punjab with Saifullah, A.S.-I. for the State.

Faisal Mehboob Malik for the Complainant.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 512 #

2010 P Cr. L J 512

[Lahore]

Before Manzoor Ahmad Malik, J

MUHAMMAD AAMIR----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.13488/B of 2009, decided on 16th November, 2009.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/148/149---Qatl-i-amd---Bail, grant of---Three persons from the side of accused had also received injuries including a fire-arm injury on the day of occurrence---Cross-version from the accused side recorded by police was found correct during investigation---Suppression of injuries sustained by the aforesaid person by the complainant in the F.I.R. by itself had gone in favour of accused---Trial Court was yet to determine after recording evidence as to which party was aggressor and which party was aggressed upon---Accused was behind the bars for the last about one year---Solitary fire-arm injury on the person of the deceased, attributed to accused, was opined by the police to have been caused by him in order to save the life of his real brother---Out of eight accused named in the F.I.R. seven had been declared innocent during police investigation---Police opinion though not binding on the Court, yet was relevant for taking into, consideration for a just decision of bag petition---Guilt of accused needed further inquiry as contemplated under S.497(2), Cr.P.C.---Accused was admitted to bail in circumstances.

Shoaib Mehmood Butt v. Iftikharul Haq and 3 others 1996 SCMR 1845; Amjad and another v. The State 1982 SCMR 955; 2002 PCr.LJ 1483; Fazal Muhammad v. Ali Ahmad 1976 SCMR 391; Mst. Shafiqan v. Hashim Ali and others 1972 SCMR 682; Ahmad v. Sheru, 1979 SCMR 526 and Tariq Basliir v. State, PLD 1995 SC 34 ref.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/148/149---Qatl-i-amd---Bail, grant of---Counter-versions---Further inquiry---Counter-versions arising from the same incident, one given by the complainant in the F.I.R. and the other given by the opposite party, make the case one of further inquiry as contemplated under S.497(2), Cr.P.C. and normally bail is granted in order to let the Trial Court determine as to which version is correct, after recording and appraising the evidence.

Shoaib Mehmood Butt v. Iftikharul Haq and 3 others 1996 SCMR 1845 ref

----S.497---Penal Code (XLV of 1860), Ss.302/148/149---Qatl-i-amd---Bail---Police opinion---Relevancy---Although opinion of police has no binding effect on the courts, yet it can be taken into consideration as a relevant circumstance for a just decision of bail petition.

Syed Ihtesham Qadir Shah for Petitioner.

Ch. Fiaz Ahmad, D.P.-G. for the State.

Muhammad Arshad, A.S.-I. with record.

Muhammad Sohail Dar for the Complainant.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 541 #

2010 P Cr. LJ 541

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD ADNAN----Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, WAZIRABAD, DISTRICT GUJRANWALA and 2 others----Respondents

Criminal Revision No.521 of 2009, heard on 8th December, 2009.

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

----S. 540---Penal Code (XLV of 1860), Ss.302/148/149/109/452---Prosecution witness resummoned for cross-examination---Validity---Two eye-witnesses had already been cross-examined by the counsel of accused appointed at State expense---Five months thereafter on the application of accused Trial Court had summoned the said two eye-witnesses again for further cross-examination on the ground that he had engaged a private counsel, which was not a good ground for re-examination of the witnesses, who had already undergone the lengthy test of the cross-examination---Accused had failed to show any reason that how he had been prejudiced in his defence---To provide opportunity to accused for engaging counsel was his right, but he could not be allowed to misuse the same---Provisions of S.540, Cr.P.C. could not be invoked just for filling up the lacunas---Impugned order had been passed on the flimsy ground without disclosing that how the re-examination of the said eye-witnesses was necessary to reach at the just conclusion of the trial---Witnesses could not be burdened to appear in the Court again, and again for examination without any reason--Impugned order was consequently set aside with the direction to Trial Court to continue with the trial from the present stage---Revision petition was allowed accordingly.

NLR 2008 Criminal 14; 2005 MLD 1140 and PLD 1991 SC 430 ref.

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

----S. 540---Re-examination of witnesses---Engagement of another counsel, not a valid reason---Engagement of another counsel by the accused at a later stage is not a ground for resummoning the witnesses for cross-examination, who have already been examined, as it will start an unending litigation---Section 540, Cr.P.C. cannot be invoked for filling up the lacunas in the case---Accused, no doubt, has a right to engage a counsel, but he cannot be allowed to misuse such right.

Muhammad Irfan Nasir Cheema for Petitioner.

Muhammad Azhar for Respondent No.2.

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

Date of hearing: 8th December, 2009.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 556 #

2010 P Cr. L J 556

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

ZULFIQAR ALI----Petitioner

Versus

SUB-DIVISIONAL POLICE OFFICER, JAMPUR, DISTRICT RAJANPUR and 2 others----Respondents

Writ Petition No.8268 of 2009, decided on 29th October, 2009.

Penal Code (XLV of 1860)---

----S. 379---Criminal Procedure Code (V of 1898), Ss.550 & 22-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Theft---Seeking direction to S.H.O. for registration of criminal case---Petitioner had sought direction to S.H.O. for registration of case in connection with theft of his truck---Petitioner had also sought direction to S.H.O. to take into possession said truck under S.550, Cr.P.C.---Petitioner had not availed alternative remedy under S.22-A, Cr.P.C. for registration of the case before the Justice of Peace---Petitioner had filed constitutional petition directly in High Court---Whether truck in question was stolen or not, that matter was subject of investigation---Exercising power under Art.199 of the Constitution, while the case was not yet registered about the alleged theft of truck, High Court could not straightaway pass order directing the S.H.O. concerned to take into possession the truck in question under S.550, Cr.P.C., considering that it was stolen by some one else---Said observation or finding just prior to registration of case, could prejudice the case of the either side in future---Contents of the constitutional petition transpired that it was not an exceptional case arising out of extraordinary circumstances, warranting direct interference of High Court---Petitioner should first avail alternate remedy, if he failed to get the relief then the petitioner could file constitutional petition---Petition was dismissed.

Khizar Hayat and others v. Inspector-General of Police (Punjab), Lahore and others PLD 2005 Lah. 470 ref.

Mian Abbas Ahmad for Petitioner.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 564 #

2010 P Cr. L J 564

[Lahore]

Before Ch. Iftikhar Hussain, J

ABID HUSSAIN KHAN----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.3813/B of 2009, decided on 4th November, 2009.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302/324/148/149/109---Qatl-i-amd, attempt to commit Qatl-i-amd and abetment thereof---Bail, grant of---Accused was only alleged to have abetted the Qatl-i-amd of the deceased and the injured person---F.I.R. had not indicated the presence of accused at the scene of occurrence, nor the manner of the abetment---Two affidavits of different persons brought on record after four months of the incident were the only source of disclosure of the alleged conspiracy or abetment without revealing the manner thereof---Hatching up such conspiracy in a public place like a Hotel was beyond imagination---Evidentiary value of the said affidavits would be considered by the Trial Court---Accused was found innocent in police investigation---Case of accused was open to further inquiry---Contention of prosecution that accused being an influential person might repeat the offence, if released on bail, could not be made a basis for denying him bail, after having found him entitled to bail-Accused was admitted to bail in circumstances.

Manzoor Ahmed and another v. The State 1997 PCr.LJ 850; Syed Amanullah Shah v. The State and another PLD 1996 SC 241 and Abdur Rehman and another v. The State 2009 YLR 1230 rel.

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

---Ss. 497/498---Bail--Police opinion---Relevancy---Although the ipse dixit of police has no binding effect on Court, yet it is a relevant circumstance to be taken into consideration, while deciding the question of bail.

----Utility---Each criminal case is to be adjudged in the background of its own facts and circumstances---Facts of the criminal cases seldom coincide.

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

----S. 497---Bail---Practice and procedure---Accused cannot be detained unnecessarily even for a single moment after having been found entitled to bail.

Muhammad Nawaz Khan for Petitioner.

Ashfaq Ahmad Malik, D.P.-G. for the State.

Malik Sohail Tahir Thaheem for the Complainant.

2010 P Cr. L J 589

[Lahore]

Before Syed Sajjad Hussain Shah, J

AFRAHIM SHAKEEL----Petitioner

Versus

THE STATE and 4 others----Respondents

Criminal Miscellaneous No.582/B of 2007, decided on 25th May, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.394/34---Protective bail, grant of---Counsel for accused did not press bail petition and decided to move pre-arrest bail of accused before the Trial Court at the first instance and he prayed for protective bail---Protective bail was allowed for five days to accused to enable him to approach the Trial Court for his bail before arrest.

M. Tanveer Chaudhry for Petitioner.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 590 #

2010 P Cr. L J 590

[Lahore]

Before Asif Saeed Khan Khosa, J

ZULFIQAR MUSTAFA----Petitioner

Versus

STATION HOUSE OFFICER and 2 others----Respondents

Writ Petition No.6277 of 2008, heard on 4th February, 2010.

Penal Code (XLV of 1860)---

----Ss. 489-F & 24---Criminal Procedure Code (V of 1898), Ss.249-A/265-K--Constitution of Pakistan (1973), Art.199---Constitutional petition---Dishonouring of cheques---Quashing of F.I.R.---Normally, after completion of investigation and submission of a challan, quashing of an F.I.R. was not resorted to by High Court; as accused had an adequate alternate statutory remedy available to him before the Trial Court under Ss.249-A/265-K, Cr.P.C. for seeking his premature acquittal---Question as to whether relevant cheques had been issued by the petitioner on the basis of dishonest intention, was a question which necessarily called for holding of a factual inquiry which exercise could not be undertaken by High Court in the summary proceedings under Art.199 of the Constitution---Challan, in the case had already been submitted before the Trial Court in connection with the case and question of dishonest intention on the part of the petitioner, would be decided by the Trial Court on the basis of the evidence, which was yet to be adduced before it---Complainant had never alleged that the cheques in question had been issued by the petitioner towards repayment of any loan; and the case of the complainant had throughout been that said cheques had been issued by the petitioner for the purpose of discharging some financial obligations of the petitioner existing towards the complainant; and if that was so, then provisions of S.489-F, P.P.C. could, prima facie, legitimately be pressed against the petitioner---When law itself had made a particular action criminally culpable, then an attempt to thwart the intention of such law with reference to a civil statute, could not be acceptable---In the present case, petitioner appeared to have gained by not parting with the sum of money which was the subject-matter of cheques in question and the complainant had apparently suffered a wrongful loss on account of dishonouring of those cheques---Definition of "dishonesty" contained in S.24, P.P.C. seemed to be applicable against the petitioner, rather than providing any shelter to him---No occasion was available for the High Court to interfere in the matter at the stage when the Trial Court had already taken cognizance of the case; and it was yet to receive evidence for resolution of various factual and legal issues involved in the case---Constitutional petition was dismissed. ?

Muhammad Ayub v. Rana Abdul Rehman and another 2006 YLR 1852; Maj. (Rtd.) Javed Inayat Khan Kiyani v. The State PLD 2006 Lahore 752; Muhammad Iqbal v. Station House Officer, Police Station Hajipura, Sialkot and 2 others PLD 2009 Lah. 541; Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192; Muhammad Mansha v. Station House Officer, Police Station City, Chiniot, District Jhang and others PLD 2006 SC 598 and Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 ref.

A.K. Dogar for Petitioner

Raja Nadeem Haider, Addl. A.-G. for Respondents Nos.1 and 2 with Nasrullah, S.-I. with record.

Sajjad Mahmood Butt and Hamid Ashraf for the Complainant/Respondent No.3 in person.

Date of hearing: 4th February, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 598 #

2010 P Cr. L J 598

[Lahore]

Before Ch. Iftikhar Hussain, J

Rana MUHAMMAD RAMZAN----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.3194/B of 2009, decided on 4th November, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, grant of---Accused was behind the bars for the last about six months and was a previous non-convict and that fact had not been controverted by the other side---Alleged offence did not fall within the prohibitory clause of S.497(1), Cr.P.C.-Grant of bail in such like cases was a rule and refusal an exception---No exceptional circumstances were found to warrant refusal of the relief of bail to accused---Mere involvement of huge amount in the case, was hardly a ground to refuse the relief of bail to accused---Case being fit for grant of bail, accused could not be refused bail on account of the commencement of trial---Case for grant of bail having been made out, accused was admitted to bail, in circumstances.

Tariq Bashir and 5 others v. The State, PLD 1995 SC 34 and Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 rel.

Muhammad Qasim Khan for Petitioner.

Ishfaq Ahmad Malik, D.P.-G. for the State.

Abdul Sami Chaudhry for the Complainant.

Muhammad Maqsood, A.S.-I. with police record.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 615 #

2010 P Cr. LJ 615

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD SHAKEEL----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.4381/B of 2009, decided on 23rd November, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.392/411---Robbery and dishonestly receiving stolen property---Bail, refusal of---Accused was named in the F.I.R. in the manner that he and his co-accused had confessed to have committed the offence and promised to restore the articles and money to the victims---Accused in such circumstances .was not required to be put to an identification test---Question as to involvement of accused at the behest of a police officer necessitated deeper examination of evidence, which was neither desirable nor permissible at bail stage and deeper questions touching the merits or evidence were to be avoided---Looted amount of Rs.1000 had been allegedly recovered after arrest of accused from an iron box lying in his house---Accused had been arrested very recently after having been declared u. a proclaimed offender---Offence fell within the domain of the prohibitory clause of section 497(1), Cr.P.C.---Bail was declined to accused in circumstances.

Muhammad Akbar v. The State 1998 SCMR 2538, distinguished.

Mian Hafeez-ur-Rehman for Petitioner.

Ashfaq Ahmad Malik, D.P.-G. for the State.

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

PCrLJ 2010 LAHORE HIGH COURT LAHORE 655 #

2010 P Cr. L J 655

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

ZULFIQAR ALI----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.4311/B of 2009, decided on 25th November, 2009.

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 498---Penal Code (XLV of 1860), Ss.365-B & 376(2)---Abduction---Pre-arrest bail, grant of---Further inquiry---Alleged abductee being sui juris had contracted marriage with accused with her own free-will and consent---Out of said wedlock a son was born who expired after three months and alleged abductee was stated to be pregnant and likely to give birth to another child---No useful purpose would be served while keeping accused behind the bars when his case was covered under subsection (2) of S.497, Cr.P.C. calling further inquiry---Case had been registered against accused on account of ulterior motive and mala fide on the part of complainant with the connivance of the local Police---Alleged abductee was residing with accused and both were enjoying peaceful matrimonial life---Abductee had married the accused against the wishes of her family---False case had been registered against accused---Ad interim pre-arrest bail already granted to accused was confirmed in circumstances.

Malik Aziz-ur-Rahman for Petitioner.

Syed Mukhtar Masood Bukhari, D.D.P.P. with Gulzar Hussain, A.S.-I. with record.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 673 #

2010 P Cr. L J 673

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

SHAKEEL----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.4287/B of 2009, decided on 16th December, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324/379/335/336/411---Attempt to commit qatl-i-amd and theft---Bail, grant of---Further inquiry---Name of the accused was mentioned in the F.I.R. but he had only telephoned the complainant and no overt act was attributed to him---Accused did not injure anybody nor any attribution of injury was mentioned in the F.I.R.---Other co-accused was granted bail by the High Court---Accused was implicated in the case through supplementary statement---Challan had been submitted before the Trial Court and accused was no more required for any recovery or investigation---Recovery of amount was effected from the accused and only weapon of offence was recovered---Accused was behind the bars since his arrest on 11-12-2008 and his further incarceration in the jail would serve no useful purpose---Co-accused and not the accused had chopped off the tongue of the complainant---Further investigation was needed into the guilt of accused, he was admitted to post-arrest bail, in circumstances.

Rana Muhammad Shakeel for Petitioner.

Saghir Ahmad Bhatti for the Complainant.

Shahid Iqbal, D.D.P.P. with Taj Muhammad, A.S.-I. with record.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 688 #

2010 P Cr. L J 688

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

RAHIM BAKHSH and another----Petitioners

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.4551/B of 2009, decided on 21st December, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324/452/148/149---Attempt to commit qatl-i-and and house trespass---Bail, grant of---Further inquiry---No weapon of offence was recovered from accused persons---Offence under S.324, P.P.C. was not prima facie attracted because firearm injuries were caused on non-vital parts of the bodies of the injured---Section 452, P.P.C. was also not made out because hotel (place of occurrence) was not a residential place---Accused persons tried to record their cross-versions, but they filed private complaint which was pending before the Trial Court---Case needed further inquiry and accused were no more required by the Police for the purpose of investigation or recovery---Accused were behind the bars since their arrest on 29-11-2008 and their further incarceration in the jail would not serve any useful purpose---Accused were admitted to bail, in circumstances.

2003 YLR 1915 and Tariq and others v. The State PLD 1995 SC 34 ref.

Syed Badar Raza Gillani for Petitioners.

Syed Jaffar Tayyar Bukhari for the Complainant.

Shahid Iqbal Bukhari, D.D.P.P. with Shaukat Sultan, Inspector with record.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 698 #

2010 P Cr. L J 698

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

GHULAM HUSSAIN----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.4633/B of 2009, decided on 16th December, 2009

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324/148/149---West Pakistan Arms Ordinance (XX of 1965), S.13---Attempt to commit qatl-i-amd---Bail, grant of---Further inquiry---No person was injured and only ineffective firing was attributed to accused and other co-accused---No empty was recovered from the place of occurrence---Counsel for accused had submitted that in those F.I.Rs. which the D.D.P.P. referred against accused, compromise had been effected and same were cancelled---No Medico-legal Certificate was obtained by the complainant and was not appended with the Police file---Case against accused, in circumstances, had become one of further inquiry, which needed further investigation into the guilt of accused---Accused was admitted to bail, in circumstances.

Syed Sajjad Haider Naqvi for Petitioner.

Shahid Iqbal, D.D.P.P. with Irshad Ahmad, S.-I. with record.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 702 #

2010 P Cr. L J 702

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

HUSSAIN BAKHSH----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.4448/B of 2009, decided on 14th December, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324/337-F(iii)/34---Attempt to commit qatl-i-amd and of ghayr-jaifa---Bail, grant of---Further inquiry---Challan had been submitted before the Trial Court---Accused though was previous record holder, but he was not convicted in any case---Mere registration of case was not sufficient to hold someone guilty---Accused was behind the bars since 16-8-2009 when he was arrested---Further incarceration of accused in the jail would serve no useful purpose---Injuries attributed to accused were simple in nature and no injury was grievous and the one attributed to hint was not on the vital part of the body of the injured which did not establish premeditation---If injuries were found at some vital part, then intention to kill would have been gathered---Accused inflicted only one injury and did not repeat the blow---Co-accused was declared innocent by the Investigating Officer, which had made the case of accused as one of further inquiry---Accused was admitted to bail, in circumstances.

Malik Ghulam Qasim Rajwana for Petitioner.

Mian Tanveer Kamran for the Complainant.

Shahid Iqbal, D.D.P.P. with Ghulam Mustafa, S.-I. with record.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 705 #

2010 P Cr. L J 705

[Lahore]

Before Hafiz Abdul Rehman Ansari and Ch. Iftikhar Hussain, JJ

KHARAT ALI alias KHIZER ABBAS----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.680 and Murder Reference No.881 of 2004, heard on 22nd October, 2009.

Penal Code (XLV of 1860)---

----Ss. 302(6) & 324---Qatl-i-amd and attempt to commit qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Counsel for accused did not assail the conviction of accused, but had sought reduction in sentence of accused---Accused had committed the murder of deceased to take revenge of the death of the his uncle whose neck was broken by the deceased in wrestling and as a result of that his uncle had died---Fact of revenge was also established from the F.I.R. which was lodged by acquitted co-accused and father of accused for the murder of uncle of the deceased---Said case was tried by the Trial Court, which had acquitted the accused from the charge by giving benefit of doubt---Appeal filed by accused was dismissed, but his sentence of death was converted to imprisonment for life and remaining sentences were maintained.

Muhammad Aslam alias Chhachhi v. The State 1982 SCMR 1029; Mehr Muhammad and another v. The State 1970 SCMR 688, Muhammad Aslam v. The State PLD 1985 SC 257 and Ghulam Abbas v. Mazher Abbas and another PLD 1991 SC 1059 ref.

Muhammad Nadeem Kanjoo for Appellant.

Ch. Sarfraz Ahmed Zia, D.P.-G. for the State.

Date of hearing: 22nd October, 2009.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 712 #

2010 P Cr. L J 712

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

ABDUL RASHEED----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.4391/B of 2009, decided on 10th December, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.365-B & 380---Abduction and theft in dwelling house---Bail, grant of---Further inquiry---Alleged abductee had taken different stance of different occasions about the allegations, which had made the case that of further inquiry---Co-accused who had entered in the house and abducted the lady, had been granted post-arrest bail while accused did not enter the house and remained standing outside the house---Under the rule of consistency, accused was also entitled to the concession of bail---Challan of the case had been submitted in the court and accused was no more required for the purpose of investigation---No useful purpose would be served while keeping accused behind the bars---Prima facie, alleged abductee seemed to be sui juris who contracted marriage of her own free will and consent---At bail stage deeper appreciation of evidence would not be permissible which could prejudice the case of prosecution or the defence---Allegation against accused was of taking away the ornaments and other household articles which were not recovered from the accused---Alleged abductee gave birth to a child out of her wed-lock with co-accused---Accused was admitted to bail, in circumstances.

Sahibzada Nadeem Farid for Petitioner.

Mian Tahir Iqbal for the Complainant.

M. Waseem Khan Babar, Dy. D.P.P. with Ameer Bukhsh, S.-I. with record.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 716 #

2010 P Cr. L J 716

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

ASHIQ HUSSAIN----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.398/C.B. of 2009, decided on 22nd December, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.365-B & 366---Abduction---Cancellation of bail, petition for---Once the Trial Court had exercised the discretion of granting bail to accused, for withdrawal of the concession, special circumstances were required---Counsel for the petitioner/complainant had badly failed to point out any instance of misuse of the concession/the relief of bail by accused---Petition for cancellation of bail did not show that accused had misused the bail nor any affidavit of any independent witness about the misuse of the said concession by accused was attached therewith---Considerations for grant of bail and for cancellation of bail were entirely different---In absence of any ground to interfere in the bail granting order passed by the Trial Court, petition for cancellation of bail, was dismissed.

Qazi Abdul Karim Shahab for Petitioner.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 722 #

2010 P Cr. L J 722

[Lahore]

Before Ijaz Ahmad Chaudhry, J

SHABBIR HUSSAIN-Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.463/B of 2010, decided on 1st February, 2010.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/109/148/149---Qatl-i-amd and abetment---Bail, grant of---Benefit of doubt---Accused according to F.I.R. had fired along with other accused persons on the deceased with Kalashnikov---Five out of nine accused had been declared innocent during investigation on the statement of the complainant, who had accepted the special oath while sitting in the mosque---Although the accused had been found innocent during investigation, yet special oath on his behalf was not accepted by complainant---Nothing incriminating was recovered from the accused---Two co-accused with the similar role had already been granted bail and accused also deserved the same relief-Case against accused being one of further inquiry, he could not be kept behind the bars for indefinite period---Benefit of doubt arising in favour of accused would go to him at any stage of the case---Bail could not be withheld as a punishment merely on account of the accused having been involved in a heinous offence---Accused was admitted to bail in circumstances.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302/109/148/149---Bail---Benefit of doubt, extension of---No time has been framed under S.497, Cr. P. C. for grant of bail---Benefit of doubt, if arises, at any stage of the case has to go to the accused.

Ch. Muhammad Aslam for Petitioner.

Ch. Amjad Hussain D.P.-G. with Muhammad Azam, A.S.-I. for the State.

Saleem Akram Chaudhry for the Complainant.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 730 #

2010 P Cr. L J 730

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD IBRAHIM----Petitioner

Versus

MUNIR AHMAD and 3 others----Respondents

Writ Petition No.23596 of 2009, decided on 28th January, 2010.

Penal Code (XLV of 1860)---

----Ss. 419/468/471---Constitution of Pakistan (1973), Art.199---Cheating by personation, forgery for purpose of cheating, using as genuine a forged document---Constitutional petition---Quashing of F.I.R.---Mere preparation or issuance of the certificate in question by the Advocate, though with some mistaken date, had hardly affected the complainant or his case---Said certificate had only carried some factual position and it had nowhere suggested that' after filing of the bail application mentioned therein, even bail had been granted to the accused---Fault, therefore, lay with the Investigating Officer who had misconstrued a simple and straightforward Certificate as a Robkar or a bail granting order---Said Advocate through a sworn affidavit had fully owned the execution and issuance of the certificate, which in no way had indicated about grant of bail to accused by High Court---No offence at all was made out against the petitioner in the said factual circumstances of the case and continuation of further proceedings on the basis of the impugned F.I.R. would never result in ultimate conviction, rather apart from being continuous untoward harassment for the petitioner it would waste the precious time of the court---F.I.R. was quashed accordingly.

Muhammad Akbar Cheema for Petitioner.

Malik Muhammad Iqbal Awan for the Complainant.

Waqas Qadeer Dar, Asstt. A.-G. with Shoukat Hayat Sub-Inspector for the State.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 746 #

2010 P Cr. L J 746

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD FAYYAZ and 3 others----Petitioners

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.406/B of 2010, decided on 29th January, 2010.

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

----S. 498---Penal Code (XLV of 1860), Ss.302/324/427/34---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage---Pre-arrest bail, grant of---Accused were not named in the F.I.R. and had been involved in the case by the complainant through his supplementary statement---Witnesses had kept mum for about three months in disclosing the names of accused who were their co-villagers and neighbours, despite the fact that the witnesses had claimed to have seen the occurrence---Committee of five senior police officers headed by D.I.-G .had finalized the investigation and concluded that accused were neither present on the spot at the time of incident, nor they had fired at the deceased or any prosecution witness, but their arrest was necessary to know the whereabouts of the actual culprits---Arrest of accused could not be justified after they had not been found guilty during investigation---Involvement of accused in the case was highly doubtful and was based on mala fide intention and ulterior motive--Investigation had been completed and sending the accused behind the bars would not serve any useful purpose---Ad interim pre-arrest bail granted to accused was confirmed in circumstances.

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

----S. 498---Pre-arrest bail---Purpose---Pre-arrest bail is meant to protect the innocent citizens, who are involved in criminal cases with mala fide intention and ulterior motive.

Shahid Hameed Dar for Petitioner.

Malik Abdul Salam, D.P.-G. with Muhammad Arif, S.-I. for the State.

Muhammad Akram Qureshi for the Complainant.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 757 #

2010 P Cr. L J 757

[Lahore]

Before Ch. Iftikhar Hussain, J

AHMAD KHAN----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.4860/B of 2009, decided on 12th January, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/148/149---Qatl-i-amd and attempt to qatl-e-amd---Bail, grant of---Co-accused had been allowed bail and case of accused for the purposes of bail was identical to co-accused who had been granted bail---Case was that of two versions of one incident and it was yet to be ascertained that version of which of parties was correct---Case for enlargement of accused on bail, having been made out on the principle of consistency, accused was admitted to bail, in circumstances.

Ali Shehryar v. The State 2008 SCMR 1448 ref.

Zafarullah Khan Khakwani for Petitioner.

Syed Mukhtar Masood Bukhari, D.D.P.P. for the State.

Shahid Nawaz Langrial and Muhammad Qasim Khan for the Complainant.

Shoukat Sultan, Inspector with police record.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 762 #

2010 P Cr. L J 762

[Lahore]

Before Ch. Iftikhar Hussain, J

ANEES and another----Petitioners

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.5057/B of 2009, decided on 19th January, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Qatl-i-amd---Bail, grant of---Further inquiry---Accused though were named in the F.I.R., but without any overt act, particularly qua the deceased---Mere presence of accused persons at the spot as narrated in the F.I.R. was in the way that they had raised Lalkara prohibiting others not to come near them, otherwise they would kill them---Vicarious liability of accused persons, perhaps had been shown in the matter by the prosecution---Such liability was to be determined at trial---Case of accused, in circumstances, was amply covered within the mischief of subsection (2) of S.497, Cr.P.C. calling for further inquiry into their guilt---Case of accused persons fell within the ambit of further inquiry, they were entitled to relief of bail as of right and in such situation they could not be detained unnecessarily---Accused were admitted to bail, in. circumstances.

Sardar Mehboob for Petitioners.

Sarfraz Ahmad Zia, D.P.-G. for the State.

Abdul Rehman, A.S.-I. with police record.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 769 #

2010 P Cr. L J 769

[Lahore]

Before Ch. Iftikhar Hussain, J

JAHANGIR and another----Petitioners

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.4815/B of 2009, decided on 12th January, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.376---Rape---Bail, grant of---Further inquiry---Police report under S.173, Cr.P.C., showed that Police during investigation, found accused persons to be innocent and their names were placed in column No.2---Ipse dixit of the Police though was not binding upon the court, but it was a relevant circumstance to be taken into consideration while determining such like question; in view of such position, it was yet to be seen that as to whether accused ultimately could be held liable for the alleged offence---Mischief of subsection (2) of S.497, Cr.P.C., in circumstances, was amply attracted to the case of accused persons---Accused were stated to be behind the bars for the last about one year and their trial was yet to be commenced---Case for enlargement of accused on bail having been made out, they were admitted to bail, in circumstances.

Rana Asif Saeed for Petitioners.

Syed Mukhtar Masood Bukhari, Dy. D.P.-G. for the State.

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

PCrLJ 2010 LAHORE HIGH COURT LAHORE 771 #

2010 P Cr. L J 771

[Lahore]

Before Mansoor Ahmad Malik, J

MUHAMMAD ASIM----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.13689/B of 2009, decided on 20th November, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/148/149---Qatl-e-amd---Bail, refusal of---Accused was named in the F.I.R. with a specific role of firing with kalashnikov along with his co-accused on the person of deceased lady who died as a result of those injuries sustained by her on different parts of her body---Apart from that, accused remained absconder for a long period of four years---Accused had fully participated in the occurrence and recovery of a kalashnikov had been effected from accused and nine crime empties of a kalashnikov were also taken into possession from the spot---Accused was found guilty during the course of investigation---Ground of juvenility under the Juvenile Justice System Ordinance, 2000 was not taken before the Trial Court which required thorough probe---Point with regard to conflict between the ocular account and the medical evidence, could not be discussed in detail at bail stage and same would be answered by the Trial Court during the trial---Acquittal of some of co-accused by the Trial Court was of no avail to accused because said co-accused were admittedly acquitted under S.265-K, Cr.P.C. and not on merits---Offence alleged against accused fell within the prohibitory clause of S.497(1), Cr.P.C.---Accused could not be enlarged on bail, after arrest merely on account of further inquiry'.

Mitho Pitafi v. The State 2009 SCMR 299; Sardar Munir Ahmad Dogar v. The State PLD 2004 SC 822; Asmatullah Khan v. Bazi Khan PLD 1988 SC 621 and Nasreen v. Fayyaz Khan PLD 1991 SC 412 ref.

Sheikh Naveed Shaharyar for Petitioner.

Ch. Fiaz Ahmad D.P.-G. for the State with Azhoor, A.S.-I. with record.

Ch. Farooq Haider for the Complainant.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 775 #

2010 P Cr. L J 775

[Lahore]

Before Mian Muhammad Najum-uz-Zaman and Rana Zahid Mahmood, JJ

MUHAMMAD SAEED and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.21/J and Murder Reference No.414 of 2004, heard on 13th July, 2009.

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

---S. 302(b)---Appreciation of evidence---Benefit of doubt---Medical evidence had not supported the ocular testimony---None of the empties collected from the spot had matched with the pistol recovered at the instance of accused---Respectables of the locality were not associated with recovery proceedings and provisions of section 103, Cr.P.C. were not complied with during investigation---Possibility of involvement of all the adult male members of the family with mala fide intention could not be ruled out---Accused was extended benefit of doubt and acquitted in circumstances.

Identification of Fire-arms and Forensic Ballistics by Major Sir Gerald Burrard and Forensic Medicine, A guide to Principles by I. Gordon H.A. Shapiro ref.

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

----Ss. 302(6), 324 & 337-A(i)---Appreciation of evidence---Presence of eye-witnesses on the spot at the time of occurrence was not open to any doubt---Ocular account was unanimous about the active participation of accused in the occurrence---Crime empties recovered from the spot had matched with the fire-arm recovered at the instance of accused---Motive had also supported the prosecution version---Deceased sister of accused had been abducted twice by the other deceased and almost after five years of her second elopement both of them were living together under the same roof---Both the deceased could not be killed by the accused after such a long period under any kind of provocation and "Ghairat"---Accused had committed the offence in a well-calculated manner and his convictions and sentence of death were affirmed in circumstances.

Malik Saeed Hassan and Malik Muhammad Salman Awan for Appellant.

M.M. Alam, Addl. P.-G. for the State.

Syed Imdad Hussain Harndani for the Complainant.

Date of hearing: 13th July, 2009.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 785 #

2010 P Cr. L J 785

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD HANIF---Applicant

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Nos. 3132-B and 3249-B of 2009, decided on 17th September, 2009.

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

----S.497(2)---Penal Code (XLV of 1860), Ss.302/34/109---Qatl-e-amd and conspiracy---Bail, grant of---Two accused had allegedly made conspiracy in the shop of one of them to do away with the deceased---Manner of hatching up of conspiracy as described in the F.I.R., ex-facie, did not appeal to reason---Conspiracy to murder a person had to be made most carefully and secretly and not so openly that other people might hear the same easily---Such allegation was not only strange but also doubtful---Third accused had been ascribed only proverbial "Lalkara" at the time of occurrence and no overt act qua the deceased---Two accused having been found innocent during investigation had been placed in Column No.2 of the report prepared under S.173, Cr. P. C. ---Police report though not binding on the Court, yet was relevant for taking into consideration while deciding the question of bail---Case of accused needed further inquiry as envisaged by S.497(2), Cr.P.C.---Prosecution had not shown any likelihood of abscondence of accused---Accused were admitted to bail in circumstances.

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

----S.497---Penal Code (XLV of 1860), Ss.302/34/104---Qatl-e-amd---Bail---Police opinion---Relevancy---Although opinion of police is not binding on the Court, yet it is relevant for taking into consideration while deciding the question of bail.

Ch. Mahmood Akhtar Ghuman and Saghir Ahmad Bhatti, Advocates on behalf of applicant Muhammad Hanif (in Criminal Miscellaneous No.3132-B of 2009).

Altaf Ibrahim Qureshi, Advocate on behalf of Applicants Nazir Muhammad and Abbas (in Criminal Miscellaneous No. 3249-B of 2009).

Ishfaq Ahmad Malik D.P.G. on behalf of Respondent No.1/State (in both these petitions).

M. Ayaz Khan, S.-I., with police record.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 790 #

2010 P Cr. L J 790

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MAHMOOD AKHTAR KHAN---Petitioner

Versus

THE STATE and 2 others---Respondents

Writ Petition No.5549 of 2010, decided on 22nd March, 2010.

Penal Code (XLV of 1860)---

----S.489-F---Financial Institution (Recovery of Finances) Ordinance (LXVI of 2001), Ss.7(4) & 20(4)---Constitution of Pakistan (1973), Arts. 189 & 199---Dishonestly issuing a cheque---Constitutional Petition---Quashing of F.I.R.---Exclusive jurisdiction of Banking Court---Scope---Accused sought quashing of F.I.R. on the ground that under S.20(4) of Financial Institutions (Recovery of Finances) Ordinance, 2001, provisions of S.489-F, P.P.C. were not applicable---Validity---High Court declined to quash the F.I. R. on the ground taken by accused as the dictum laid down by Supreme Court in view of Art.189 of the Constitution was binding on all subordinate authorities including High Court---Question whether accused had issued cheques in question to complainant with mala fide intention or not could be solved after conducting thorough investigation which could not be undertaken in summary proceedings under Art.199 of the Constitution---High Court directed that accused had to satisfy investigating officer of criminal case and not High Court about stated falsity of allegations levelled in F.I.R.---Petition was dismissed in circumstances.

PLD 2001 Lah. 533 ref.

Industrial Development Bank of Pakistan v. Asim Fareed 2006 SCMR 483 fol.

Qazi Misbah-ul-Hassan for Petitioner.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 795 #

2010 P Cr. L J 795

[Lahore]

Before Ch. Iftikhar Hussain, J

RIYASAT ALI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Nos. 3198-B and 325-B of 2009, decided on 1st October, 2009.

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

----S.497(2)---Penal Code (XLV of 1860), S.364---Kidnapping or abducting in order to murder---Bail, grant of---Delay of about two years in lodging the F.I.R. had cast doubt qua the veracity of prosecution story and benefit of every doubt, even at bail stage, had to be given to accused---Both the accused had been found innocent during investigation by the police---Ipse dixit of police despite being not binding on the court, is a relevant circumstance to be considered while deciding the question of bail---Dead bodies of the missing woman and her two daughters could not be traced by the Investigating Officer---One vegetable seller had also made a Rapat at the Police Station qua a woman and two little girls having jumped into the canal in his presence, who according to Investigating Officer might possibly be the alleged abductees---Certified copies of an order of Family Court and writ petition had suggested that the alleged abductee had appeared in the courts after the alleged incident---Was yet to be ascertained as to whether the accused could ultimately be held liable for the alleged offence---Case of accused, therefore, was covered under S.497(2), Cr.P.C.---Submission of challan in the court showed that accused were no more wanted for investigation---Accused having been found entitled to bail, they could not be detained unnecessarily even for a moment---Accused were admitted to bail accordingly.

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

---S.497---Penal Code (XLV of 1860), S.364---Kidnapping or abducting in order to murder---Bail---Benefit of doubt-Benefit of every doubt, even at bail stage, is to be given to the accused.

----S. 497---Penal Code (XLV of 1860), S.364---Kidnapping or abducting in order to murder---Bail---Police opinion---Relevancy---Ipse dixit of police, though not binding on the court, yet it is relevant for taking into consideration while deciding the question of bail.

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

----S. 497---Penal Code (XLV of 1860), S.364---Kidnapping or abducting in order to murder---Bail---Administration of justice---When case of an accused is found fit for bail, then he cannot be detained unnecessarily in jail even for a moment.

Malik Waqar Haider Awan, Advocate on behalf of the Petitioner Riasat Ali (in Criminal Miscellaneous No.3198-B of 2009).

Muhammad Arif Alvi, Advocate on behal for Petitioner Abdul Sattar (in Criminal Miscellaneous No.3251-B of 2009).

Ishfaq Ahmad Malik, DPG on behalf for the State (in both these petitions).

Abdul Ghaffar, S.-I./I.O. with police record.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 803 #

2010 P Cr. L J 803

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD SALEEM AKHTAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 3177-B of 2009, decided on 6th October, 2009.

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

----S.497(2)---Penal Code (XLV of 1860), Ss.409/468/471---Criminal breach of trust by public servant, forgery for purpose of cheating and using as genuine a forged document---Bail, grant of---Accused had allegedly forged the mutations after keeping unlawfully in his possession the official Revenue Record of a Mauza---F.I.R. had been lodged with a quite significant delay of about eight years---Present F. I. R. actually was the second F.I.R., as an earlier F.I.R. with the same allegation had also been registered with the Police Station Anti-Corruption in which the accused had been allowed bail---Was yet to be seen if the accused could be held liable in the present case for the same offence as was alleged in the previous F.I.R.---Case of accused fell within the ambit of S.497(2), Cr.P.C. calling for further inquiry into his guilt---Involvement of accused in number of cases of similar type could not deprive him of his liberty---Accused was admitted to bail in circumstances.

Muhammad Rafique v. The State 1997 SCMR 412 ref.

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

----S.497---Penal Code (XLV of 1860), Ss.409/468/471--- Criminal breach of trust by public servant forgery for purpose of cheating and using as genuine a forged document---Bail---Involvement of accused in many cases---Effect---Involvement of accused in number of cases is not sufficient to deprive him of his liberty.

Muhammad Rafique v. The State 1997 SCMR 412 ref.

Mian Ahmad Mehmood for Petitioner.

Ashfaq Ahmed Malik, DPG for the State.

Mureed Hussain S.-I. with police record.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 807 #

2010 P Cr. L J 807

[Lahore]

Before Manzoor Ahmad Malik, J

MUHAMMAD YOUNAS---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 2638-B of 2010, decided on 25th March, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 337-D & 34---Attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---Accused was also injured in the incident and sustained three injuries and he was examined in the same hospital where the victim was examined---Case was that of two versions---Question as to which party was aggressor and which party was aggressed upon was to be determined by the Trial Court after recording of the evidence of the parties which would bring the case of accused within the ambit of subsection (2) of S.497, Cr.P.C.---Accused was admitted to bail in circumstances.

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

Fazal Muhammad v. Ali Ahmad 1976 SCMR 391 and Mst. Shafiqan v. Hashim Ali and others 1972 SCMR 682 ref.

Ahmad Raza Raja for Petitioner.

Syed Imdad Hussain Hamdani for the Complainant.

Ch. Muhammad Zafar Khan, Deputy Prosecutor-General. Rehmat, S.-I. with record.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 812 #

2010 P Cr. L J 812

[Lahore]

Before Sh. Najam-ul-Hassan and Syed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD SHAHID---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.163-J and Murder Reference No. 632 of 2004, heard on 5th March, 2010.

Criminal Procedure Code (V of 1898)---

----S.340 (1)---Constitution of Pakistan (1973), Art. 10(1)---High Court Rules and Orders, Vol. III, Ch. 24, R.2---Right of accused to be defended by counsel of his own choice---Accused is required to be defended by a Counsel of his choice as a matter of right, especially in cases of capital punishment---Law protects such right of accused as a duty cast upon the State to bear the expenses of the counsel, if the accused is unable to engage a counsel of his choice due to financial restraints---Concept of "counsel of his own choice" has very vast meanings---Incumbent upon the State to provide the counsel in whom the accused reposes confidence and feels safe in his hands during the course of trial---If the Government exchequer can bear the expenditure of paying heavy fees to the Public Prosecutors or Special Public Prosecutors to establish the guilt, then on the same analogy the State is equally responsible to pay the expenses of the defence counsel provided to the accused to meet the ends of justice.

Miranda v. Orizona 384 U.S. 436 (1966); Muhammad Hashim Raza v. The State 1997 MLD 1130; Qalandro alias Nazro v. The State 1997 MLD 1632 and Nazir Hussain v. Muhammad Yaqub PLD 1986 Lah. 115 ref.

(b) Criminal trial---

----Cross-examination by accused himself, depricated---Practice of providing an opportunity to accused to cross-examine the witnesses himself has been deprecated because the ability of accused to cross-examine the witnesses cannot be substituted with that of a counsel.

Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 ref.

----Ss.302 (b), 324 & 337-F (iii)---Qatl-e-amd, attempt to commit qatl-e-amd and causing hurt---Confession made by accused during trial---Validity---Accused had been convicted and sentenced on the basis of his confessional statement made during the course of his trial---At the first instance accused had denied the charge, but thereafter during the trial he made a statement without any oath confessing the guilt---Trial Court did not take decision at the same time, rather proceeded with the trial and examined all the witnesses while associating the accused in the trial, although he was not provided legal assistance as required under the law---At the end of the trial no question was asked from the accused under S. 342 Cr.P.C. and he was not asked if he wanted to appear as his own witness under S. 340(2), Cr.P.C.-Confessional statement of accused was also without oath---Said confession had no legal value---Convictions and sentences of accused were set aside in circumstances and case was remanded to Trial Court for a fresh decision after recording evidence and providing legal assistance to the accused at State expense, if he had no enough means to engage a counsel---Appeal was disposed of accordingly.

Miranda v. Orizona 384 U.S. 436 (1966); Muhammad Hashim Raza v. The State 1997 MLD 1130, Qalandro alias Nazro v. The State 1997 MLD 1632; Nazir Hussain v. Muhammad Yaqub PLD 1986 Lah. 115 and Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 ref.

Muhammad Arshad Bhatti for Appellant.

Muhammad Mazhar Sher Awan, A.P.-G. for Respondent.

Date of hearing: 5th March, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 822 #

2010 P Cr. L J 822

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD ASIF---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 2465-B of 2009, decided on 12th October, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss. 302/324/148//149/109---Qatl-e-amd and attempt to commit qatl-e-amd---Bail, grant of---Accused was ascribed a blow with iron rod on the forehead of the complainant, whereas co-accused as per F.I.R. had given a 'sota' blow also on the forehead of the complainant, but medical report of complainant had revealed only one injury on his forehead, which had been declared to be simple in nature---Co-accused had already been released on bail---Case of accused was quite identical to that of his co-accused---No crime weapon had been recovered from the accused---Accused in investigation was not found to have participated in occurrence, rather he was found empty handed---Co-accused had filed a private complaint with a counter version, in which accused had been summoned by Trial Court and it was yet to be determined that who was aggressor and who was aggressed upon---Vicarious liability of the accused for Qatl-e-Amd of the deceased, would be determined at the trial after recording evidence---Guilt of accused, thus, called for further inquiry under S.497(2), Cr.P.C.---Accused was enlarged on bail in circumstances.

Malik Muntazar Mandi for Petitioner.

Ishfaq Ahmad Malik, D.P.G. on behalf for the State.

Muhammad Ilyas the Complainant with Malik Ghulam Qasim Rajwana.

Muhammad Anwar, A.S.-I. with police record.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 837 #

2010 P Cr. L J 837

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

MUHAMMAD AFZAL---Petitioner

Versus

THE STATE---Respondent

Criminal Appeals Nos. 159-J, 304 and M.R. No. 172 of 2003, heard on 8th March, 2010.

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

----Ss. 302(6)/34, 324/34 & 337-A(ii)---Qatl-e-amd, attempt to commit Qatl-e-amd and causing of hurt---Appreciation of evidence---Occurrence was of day time---Presence of eye-witnesses at the place of occurrence had been established by the injuries received by them at the hands of the accused---Prosecution story partly did not appeal to common sense---Prosecution had not told the whole truth---Parties had admitted the fight at the spot, but in different manners---Corroborative evidence was not forthcoming---Recovery of weapon of offence at the instance of accused was of no avail to prosecution, because the same and the crime empties secured from the spot were sent to Forensic Science Laboratory on the same day and the possibility of having fired those empties from the said weapon could not be ruled out--Incriminating value of the Laboratory report was further destroyed, as no witness had stepped forward to state that he had taken the weapon and the empties to the said laboratory---Defence plea that the deceased and the witnesses had been injured by the neighbours, besides being highly imporbable, was not substantiated---Was not known as to how the firing started and what exactly happened prior to the occurrence--Case, thus, was of sudden fight and section 34, P.P.C. was not attracted due to lack of common intention---Accused had not caused any injury to the deceased and his conviction under S.302(b)/34, P.P.C. was set aside---Medical evidence had supported the injuries attributed to accused on the persons of eye-witnesses and his convictions and sentences under Ss. 324 and 337-A(ii), P.P.C. were maintained---Appeal was disposed of accordingly.

Jehanagir v. Nazar Farid and another 2002 SCMR 1986; Muhammad Younas Khan v. The State 1992 SCMR 545; Syed Ali. Beopari v. Nibran Mollah and others PLD 1962 SC 502; Hasan Din v. Muhammad Mushtaq and 2 others 1978 SCMR 49; Muhammad Yaqoob Sub-Inspector v. The State PLD 2001 SC 378; (1955) SCR 1083, (1955) Cr.L.J. 572); Shakeel and 5 others v. The State PLD 2010 SC 47 and PLD 1956 SC (Ind.) 176 ref.

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

---Ss. 302(b)/34, 324/34 & 337-A(ii)---Qatl-e-amd, attempt to commit Qatl-e-amd and causing of hurt---Appreciation of evidence---Principles---Where parties do not come out with the true story trying to minimize their own part in the incident, Court can draw proper inference flowing from the evidence and circumstances of the case.

Syed Ali Beopari v. Nibran Mollah and others PLD 1962 SC 502 ref.

----S.34---Common intention---Scope---Common intention presupposes prior concert and requires a pre-arranged plan, because for convicting a man vicariously for the criminal act of another, the act must have been done in furtherance of the common intention of all of them--Inference of common intention would only be reached if it is deducible from the circumstances of the case---All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference or the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis.

Muhammad Yaqoob Sub-Inspector v. The State PLD 2001 SC 378 ref.

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

----Ss. 302(b)/34, 324/34 & 337-F(vi)---Qalt-e-amd, attempt to commit Qatl-e-amd and causing of hurt---Appreciation of evidence---Accused had fired a shot at the flank of the deceased and was also attributed a fire-arm injury on the person of the complainant---Medical evidence had supported the ocular testimony---Convictions and sentences of accused, except the sentence of death, were consequently upheld---Accused, firstly, had not repeated the fire on the person of the deceased and, secondly, it was not known as to what had exactly happened at the spot prior to the occurrence---Sentence of death awarded to accused under S.302(b), P.P.C. was converted into imprisonment for life in circumstances.

Mirza Zaheer Ahmad and another v. State and others 2003 SCMR 1164; Zubaida Begum v. Muhammad Tariq alias Billu and others 2002 SCMR 1397; Muhammad Tariq v. The State 2004 SCMR 783; Navid Akhtar and others v. Muhammad Saeed Khan and another 2004 SCMR 1469; Muhammad Ibrar v. The State 2006 SCMR 1175 and Latif Ullah v. The State 2007 SCMR 994 ref.

Rai Wali Muhammad Khan for Appellant (in Criminal Appeal No. 159-J of 2003).

Shoaib Zafar for Appellants (in Criminal Appeal No.304 of 2003) .

M.M. Alam Chaudhry, Addl. Prosecutor-General Punjab for the State.

Barrister Salman Safdar and Rana Munir Ahmad Khan for the Complainant.

Date of hearing: 8th March, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 852 #

2010 P Cr. L J 852

[Lahore]

Before Muhammad Farrukh Irfan Khan and Waqar Hassan Mir, JJ

IHTESHAM-UL-HAQ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 392-J of 2005, heard on 2nd March, 2010.

Penal Code (XLV of 1860)---

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Abduction for extorting property and kidnapping for ransom---Appreciation of evidence---Accused was not named in the F.I.R. and had been implicated in the present case by his co-accused in a different case---Accused seemed to be a different person than the one involved in the case---Prosecution had failed to prove that he was an accused in the present case---Alleged abscondence of accused having not been put to him in his examination under S.342, Cr.P.C. had no legal effect, which even in the absence of any independent corroboration could not be a conclusive proof of his alleged guilt---Despite clear cross-examination of prosecution witnesses with regard to the independent name, parentage, caste and residence of accused as well as his different identity, non-questioning him under S.342, Cr.P.C. was incurable and fatal to prosecution case---Accused had been nominated in the case with a different parentage, caste and residence through supplementary statement, which being a statement under S.161, Cr.P.C. would neither be equated with F.I.R. nor read as a part of the same---Lodging of F.I.R. by a Assistant Director of ACE with a delay of 24 hours out of the Police Station before his own A.S.-I. had further rendered the case extremely doubtful---Identity of the allegedly recovered amount of ransom money as well as the demand of the same, had remained unproved by withholding the best evidence in this regard by the prosecution, which had exposed its mala fides and ulterior motives---Supplementary statement itself was hearsay, informer was not a registered informer of local police but was an acquaintance of the complainant, who was neither cited as a witness nor examined at the trial---Supplementary statement, therefore, could not be legally relied upon---Prosecution witnesses had introduced dishonest improvements in their statements during the trial and made conflicting depositions---Abductees were not recovered from the accused, nor any ransom money was proved to have been demanded by him or paid to him---No identification parade had been held for identification of accused and prosecution had failed to establish his nexus with the alleged episode--Investigating Officer instead of keeping the case property in safe custody at Malkhana of the Police Station had kept the same with himself without recording any case-diary and brought the same to the Court on the day of his examination, which had offended against the High Court Rules and Orders---Accused was acquitted in circumstances.

Haji Paio Khan v. Sher Biaz and others 2009 SCMR 803; Ch. Muhammad Yaqoob and others v. The State and others 1992 SCMR 1983; Munir Ahmad alias Munni v. The State 2001 SCMR 56; Asif Ali Zardari and another v. The State PLD 2001 SC 568; Khushi Masih v. The State 1996 PCr.LJ 1787; Abdul Wahid v. The State 2008 YLR 248; Noor Muhammad v. The State 2008 SCMR 1556; Raza Muhammad alias Rajib Ali and another v. The State 2001 YLR 1743; Abdul Rehman v. Ali Sher and others 2000 PCr.LJ 33; Amrood Khan v. The State 2002 SCMR 1568; Muhammad Shabir v. The State 2004 PCr.LJ 1030; Mst. Dur Naz and another v. Yousaf and another 2005 SCMR 1906; Noora and another v. The State PLD 1973 SC 469; Mah Gul v. The State 2009 SCMR 4; Muhammad Asghar v. The State PLD 2008 SC 513; Shafqat Abbas and another v. The State 2007 SCMR 162; Muhammad Yameen alias Raja v. The State and others 2009 SCMR 84; Abdul Ghaffar v. The State 2009 PCr.LJ 57 and Sohail Abbas and others v. Kashif and others PLD 2001 SC 546 ref.

Khalid Mian for Appellant.

Syed Faisal Raza Bukhari, DPG for the State.

Nemo for the Complainant.

Date of hearing: 2nd March, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 868 #

2010 P Cr. L J 868

[Lahore]

Before Manzoor Ahmad Malik and Mohammad Anwar Bhaur, JJ

IMRAN IQBAL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 2000 and M.R. No. 696 of 2003, heard on 25th February, 2010.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Medical evidence had not contradicted ocular testimony---Failure of prosecution to prove motive for occurrence would not adversely affect the merit of its case, if otherwise proved on record---Place of occurrence being situated at a distance of one and a half kilometer from the place of business of the prosecution witnesses, their presence at the spot was natural---Eyewitnesses had no enmity with the accused, even the same was not suggested to them---Substitution in a criminal case was a rare phenomenon---Parties being known to each other, mistaken identity of accused was ruled out---Eye account had come through an unimpeachable source and inspired confidence---Conviction of accused was maintained accordingly---Accused had not repeated the fire shot and it was not known as to what had happened between the deceased and the accused just before the occurrence---Death sentence of accused was converted into imprisonment for life in circumstances.

Latif Ullah v. The State 2007 SCMR 994; Mirza Zaheer Ahmad v. The State 2003 SCMR 1164 and Mehboob Ahmad and another v. Muhammad Khan alias Kalu and another 2003 SCMR 95 ref.

Muhammad Riaz v. The State 2006 SCMR 954 and Qamar Ehsan v. The State 2003 YLR 3036 rel.

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

----S. 302(b)---Qatl-e-amd---Sentence---Absence of motive---Effect---Inadequacy or weakness of motive, or non proof of the same despite having been set up, or the same having been shrouded in mystery, would not serve as a mitigating circumstance for awarding lesser sentence of imprisonment for life, if the prosecution case otherwise stands proved beyond any shadow of doubt by unimpeachable ocular evidence.

Muhammad Riaz v. The State 2006 SCMR 954 ref.

----S. 302(b)---Qatl-e-amd---Sentence---Mitigating circumstance---Non-repeating of fire shot by the accused and silence of the record as to what had transpired between the deceased and the accused immediately before the occurrence, would bring the case of accused not of capital punishment of death.

Qamar Ehsan v. The State 2003 YLR 3036 ref.

Azam Nazir Tarar for Appellant.

M.M. Alam Chaudhry, Addl. Prosecutor-General for the State.

Nemo for the Complainant.

Date of hearing: 25th February, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 875 #

2010 P Cr. L J 875

[Lahore]

Before Ijaz ul Ahsan, J

MUHAMMAD ARSLAN----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.2187/B of 2010, decided on 16th March, 2010.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.489-F---Dishonouring of cheques---Ad interim pre-arrest bail, confirmation of---Documents on record showed that transaction took place between the complainant and father of accused regarding sale of a vehicle---Vehicle in question had been taken on lease from the bank which was sold by father of accused to tee complainant with an understanding to pay the future instalments---Since vehicle was repossessed by the lessor bank, the complainant fell aggrieved and lodged an F.I.R. against accused and his father---According to the allegations in the F.I.R., transaction in question had been undertaken by the father of accused and no specific allegation existed against the accused---While accused and his father were under arrest, accused issued two cheques, which cheques were issued to settle the matter in terms of an agreement on the basis of which the complainant undertook to withdraw the case and supported the grant of bail to accused and his father---Accused and his father had initiated civil suits in the courts of competent jurisdiction placing the version of accused on record that he had been forced by the Police in connivance with the complainant to issue the cheques---Accused was not directly involved in the transaction and he had been implicated in order to pressurize his father to settle the matter with the complainant---Arrest of accused would humiliate and embarrass him which in the facts and circumstances of the case and a tentative appraisal of material before the court appeared to be without a just cause---Possibility of false involvement of accused could also not be ruled out---Statements of all the concerned had been recorded and all material information and documents had been collected and police did not require the physical custody of the accused---Ad interim pre-arrest bail granted to accused, was confirmed, in circumstances.

Agha Abul Hassan Arif for Petitioner.

S.M. Shehzad Azmat for the Complainant.

Azhar Javed Rana, D.P.-G. with Riaz Ahmad, S.-I. for the State.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 888 #

2010 P Cr. L J 888

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD IQBAL----Petitioner

Versus

THE STATE----Respondent

Writ Petition No.9289 of 2009, decided on 18th December, 2009.

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

----Ss. 156 & 173---Re-investigation after submission of challan in court---Validity---Fresh investigation after submission of challan under S.173, Cr.P.C. is not based on collection of some new material or evidence by Investigating Officer, which may be considered by Trial Court.

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

----Art. 189---Preference of the judgment of Larger Bench of Supreme Court over the judgment of Smaller Bench of the Supreme Court---Judgment of Larger Bench of Supreme Court will be preferred over the judgment of Smaller Bench of Supreme Court.

Azmatullah through L.Rs. v. Mst. Hameeda Bibi and others 2005 SCMR 1201 ref.

----Art. 186(6)---Penal Code (XLV of 1860), S.302/34---Constitution of Pakistan (1973), Art.199---Qatl-e-amd---Constitutional petition---Change of investigation after commencement of trial---Validity---Additional Inspector-General of Police (Investigation) had ordered the first change of investigation in the case after the challan had been submitted in the Court, trial had commenced and even the evidence of some prosecution witnesses had been recorded---Order passed by the said Police Officer was quite legal, just and in accordance with law, who had rightly exercised his power under Art.18(6) of the Police Order, 2002---Impugned order did not suffer from any illegality---Trial Court had the discretion to consider any fresh material collected by the Investigating Officer in the subsequent investigation made after the submission of challan---Constitutional petition was dismissed in circumstances.

Muhammad Nazir Cheema v. Mazhar Javaid and others PLD 2007 SC 31; Bahadur Khan v. Muhammad Azran and others 2006 SCMR373 and Azmatullah through L.Rs. v. Mst. Hameeda Bibi and others 2005 SCMR 1201 ref.

Abdul Aziz Khan Niazi for Petitioner.

Sh. Muhammad Faheem for Respondent.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 900 #

2010 P Cr. L J 900

[Lahore]

Before Sagheer Ahmad Qadri and Ijaz-ul-Ahsan, JJ

Mst. RASHIDA BIBI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.7-J of 2009, heard on 27th January, 2010.

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

----S.9(c)---Possession of narcotics---Appreciation of residence---Police officer performing dual duty of the complainant as well as of an Investigating Officer---Competency---Police Officer is not legally prohibited to be a complainant if he is a witness to the commission of an offence and also to be an Investigating Officer, so long as it does not in any manner prejudice the accused---Court will have to form its opinion after appraising and evaluating the entire prosecution evidence.

State through Advocate General, Sindh v. Bashir and others PLD 1997 SC 408 and Mst. Ajab Sultana and another v. The State 2003 PCr.LJ 82 ref.

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

----S.9(c)---Possession of Narcotics---Appreciation of evidence---Police officer could legally act as a complainant as well as an Investigating Officer, unless the accused was prejudiced by such action---No such objection had been raised during the trial, nor the same had been put to the relevant police officer even as a suggestion in his crossexamination---Application of section 103, Cr.P.C. having been excluded by section 25 of the Control of Narcotic Substances Act, 1997, objection about non-association of any private witness in the recovery proceedings, had no substance---Complainant police officer was a witness to the recovery of "Charas" weighing six kilograms from the accused---Report of Chemical Examiner was in positive---Conviction and sentence of accused were maintained in circumstances.

State through Advocate General, Sindh v. Bashir and others PLD 1997 SC 408; Nazir Ahmad v. The State PLD 2009 Kar. 191; Mst. Ajab Sultana and another v. The State 2003 PCr.LJ 82; Aksar Khan v. The State 1995 MLD 1237 and Fida Jan v. State 2001 SCMR 36 ref.

Noorul Hassan for Appellant.

Raja Javed Ashraf, Dy. P.-G. for the State.

Date of hearing: 27th January, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 910 #

2010 P Cr. L J 910

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

Mst. SHAZIA MAI----Petitioner

Versus

JUSTICE OF PEACE and others----Respondents

Writ Petition No.6926 of 2009, decided on 29th September, 2009.

Criminal Procedure Code (V of 1898)---

----Ss.22-A, 22-B & 154---Constitution of Pakistan (1973), Art.199---Constitutional petition---Registration of criminal case---Petitioner had sought issuance of a direction to respondent S.H.O. to lodge F.I.R. against accused named in the application---Justice of Peace had directed S.H. O. concerned to register a case if from the contents of the application, cognizable offence was made out---Petitioner submitted application before S.H.O., in the light of order of :he Justice of Peace, but he did not record the statement of the petitioner under S.154, Cr.P.C. which the S.H.O. was bound to do so---High Court directed the S.H.O. to record the statement of the petitioner and hand over a copy of F.I.R. to her without any delay.

Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 ref.

Irfan Haider Shamsi for Petitioner.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 919 #

2010 P Cr. LJ919

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD SALEEM and 2 others----Petitioners

Versus

S.H.O., POLICE STATION, HUJRA SHAH MOQEEM DISTRICT OKARA and 2 others----Respondents

Writ Petition No.17926 of 2009, decided on 18th September, 2009.

Constitution of Pakistan (1973)---

----Art.199---Penal Code (XLV of 1860), S.379---Theft---Constitutional petition---Quashing of F.I.R.---Whether case registered against accused was false or based on truth, High Court could not assume the duty of Investigation Officer, whose function was to investigate the case and dig out the truth---Where disputed questions of fact were involved, High Court declined to exercise jurisdiction to resolve such disputed questions.

Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276; Muhammad Saeed Azhar v. Martial Law Administrator Punjab and others 1979 SCMR 484; Umar Hayat Khan v. Inayatullah Butt and others 1994 SCMR 572; Mst. Kaniz Fatima through Legal Heirs v. Muhammad Salim 2001 SCMR 1493; Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Division Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415 and Wazir Ali Soomoro v. Water and Power Development Authority and others 2005 SCMR 37 ref.

Khan Ghulam Ali Balouch for Petitioner.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 926 #

2010 P Cr. L J 926

[Lahore]

Before Khurshid Anwar Bhinder and Nazeer Ahmad Ghazi, JJ

MULAZIM HUSSAIN----Appellant

Versus

THE STATE and another----Respondents

Criminal Appeal No.2075 of 2002, heard on 21st July, 2009.

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

----S.302---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-e-amd---Appeal against acquittal---Conduct of three prosecution witnesses, closely related to deceased, in not overpowering the single accused armed only with a dagger and allowing him to inflict fourteen injuries on the person of the deceased, had made their presence at the place of occurrence highly doubtful, who had even failed to explain their presence at the scene of occurrence---Non-mentioning of time in the F.I.R. had shown that the same was not promptly lodged and was made after consultations and deliberations---Motive for the occurrence was not proved, which even due to failure of ocular account would lose its importance---Recovery of dagger from the accused was highly doubtful---Medical evidence might confirm ocular evidence with regard to seat of injury, nature of injury and kind of weapon used in the crime, but could not connect the accused with the commission of the offence---Accused after his acquittal had secured double presumption of innocence, which could not be disturbed until and unless the same was perverse, without justification or based on misreading or non-reading of evidence, which was not pointed out in the present case---Appeal against acquittal of accused was dismissed in circumstances.

Liaquat Ali v. The State 2008 SCMR 95; Muhammad Aslam v. Sabir Hussain and others 2009 SCMR 985; Muhammad Tasawar v. Hafiz Zulkarnain and 2 others PLD 2009 53; Ghulam Murtaza v. Muhammad Akram and others 2007 SCMR 1549; Muhammad Rahim and others v. Bakht Muhammad and others 2006 SCMR 1217; Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCMR 1928; Mst. Saira Bibi v. Muhammad Asif and others 2009 SCMR 946 and Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 ref.

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

----S.302---Qatl-e-amd---Appreciation of evidence---Motive---Principle--Strongest motive loses its importance where ocular testimony fails.

----S.302---Qatl-e-amd---Appreciation of evidence---Medical evidence---Nature and scope---Medical evidence is always considered as a corroborative piece of evidence---Injuries by themselves are not sufficient to identify the culprit.

Muhammad Aslam v. Sabir Hussain and others 2009 SCMR 985; Muhammad Tasawar v. Hafiz Zulkarnain and 2 others PLD 2009 53; Ghulam Murtaza v. Muhammad Akram and others 2007 SCMR 1549; Muhammad Rahim and others v. Bakht Muhammad and others 2006 SCMR 1217; Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127 and Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCMR 1928 ref.

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

----S.417---Penal Code (XLV of 1860)---S.302---Qatl-e-amd---Appeal against acquittal---Interference---Principles---Accused, after acquittal from a court of competent jurisdiction secures double presumption of innocence, which cannot be disturbed until and unless judgment is found to be perverse, suffering from error of jurisdiction or based on misreading or non-reading of evidence---Even a reasonably possible second opinion in respect of the fate of the case, cannot disturb the judgment of acquittal.

Muhammad Aslam v. Sabir Hussain and others 2009 SCMR 985; Mst. Saira Bibi v. Muhammad Asif and others 2009 SCMR 946 and Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 ref.

Syed Ejaz Qutab and Hashim Sabir Raja for Appellant.

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

Malik Rab Nawaz for Respondent.

Date of hearing: 21st July, 2009.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 946 #

2010 P Cr. L J 946

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

GHULAM YASIN----Petitioner

Versus

D.S.P. and others----Respondents

Writ Petition No.7556-Q of 2009, decided on 12th October, 2009.

Constitution of Pakistan (1973)---

----Art.199---Penal Code (XLV of 1860), Ss.411/459---Police Rules, 1934, R.24.7---Dishonestly receiving stolen property and hurt caused whilst committing house trespass---Constitutional petition---Quashing of F.I.R---Relief of quashing of F.I.R. claimed by accused, could not be granted as he had other alternate remedies available under law to the effect; that accused could appear before Investigating Officer to prove his innocence, he could approach the competent higher authorities of Investigating Officers having powers vide S.551, Cr.P.C.; that after completion of investigation and submission of case Magistrate concerned had power to discharge accused under S.63, Cr.P.C. in case of his innocence, that in case Magistrate found accused innocent, he would refuse to take cognizance of the matter; that Rule 24.7 of the Police Rules, 1934 made a provision for cancellation of cases during the course of investigation under the orders of the concerned Magistrate and that remedies were available to accused who claimed to be innocent and could seek relief without going through the entire length of investigation.

2010 P Cr. L J 982

[Lahore]

Before Hafiz Abdur Rehman Ansari, J

NISAR AHMED and another---Petitioners

Versus

ADDITIONAL SESSIONS JUDGE, KHANEWAL and 3 others---Respondents

Writ Petition No. 7024 of 2009, decided on 1st October, 2009.

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

----S.154---Constitution of Pakistan (1973), Art.199---Constitutional petition---Registration of F.I.R---Justice of Peace on the petition filed by the complainant under section 22-A, Cr.P.C. had directed the S.H.O. to register the case against the accused, vide the impugned order---S.H.O. was bound to record the statement of the complainant under section 154, Cr.P.C. if from the contents thereof a cognizable offence was made out---S.H.O. was, consequently, directed to register the F.I.R. of the complainant, with the direction to DIG, Police Range, to depute a police officer of good repute not below the rank of S.P., to investigate the matter of the F.I.R.---If F.I.R. was found to be false in the investigation, legal action was directed to be initiated against the complainant---Constitutional petition was dismissed in limine with the said observation.

1993 SCMR 550 and Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539 rel.

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

----Ss. 154 & 155---Information in cognizable and non-cognizable cases---No room for any inquiry into the veracity of such information by S.H.O-No provision in any law including sections 154 and 155 Cr.P.C. authorizes an officer incharge of a police station to hold on enquiry to assess the correctness or the falsity of the information received by him, before complying with the command of the said provisions which obliges him to reduce the same into writing irrespective of the fact whether such an information was true or otherwise---S.H.O. has no authority to refuse to record an F.I.R. only because in his opinion the information conveyed to him lacked credibility.

Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539 ref.

Malik Muhammad Jamshed Awan for Petitioners.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 984 #

2010 P Cr. L J 984

[Lahore]

Before Ijaz Ahmad Chaudhry, J

ABOU BAKAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.793-B of 2010, decided on 11th February, 2010.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.3021324/148/149---Qatl-e-amd and attempt to commit qatl-e-amd---Bail, grant of--Further inquiry--According to the F.I.R. and the statement of the deceased prior to his death accused was armed with a rifle, but during investigation only "Sota" was recovered from him---Medical evidence was in conflict with ocular version of the occurrence---Fact that the accused despite being armed with a rifle did not use the same during the incident and gave only butt blow., to the deceased, had brought his case within the purview of further inquiry---Accused was behind the bars and nothing was to be recovered from him---Bail was allowed to accused in circumstances.

Zubair Afzal Rana and Ch. Nawab Ali Meo for Petitioner.

Ch. Amjad Hussain, Deputy Prosecutor General with Amanat Ali, A.S.-I.

Muhammad Ehsan Nizami for the Complainant.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 990 #

2010 P Cr. L J 990

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

NAZIM HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2 of 2009 in Criminal Appeal No.371 of 2009, decided on 6th October, 2009.

Criminal Procedure Code (V of 1898)---

----S.426---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Suspension of sentence---Conviction and sentence of co-accused had already been suspended by High Court under the principle of consistency---Case of accused was at better footing than said co-accused---Fatal injury which was declared cause of death of deceased was attributed to another co-accused who was acquitted by the Trial Court---Petition of accused was accepted and he was released on bail subject to his furnishing bail bond.

M.A. Hayat Harraj for Applicant.

Shahid Iqbal, DDPP for the State.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 997 #

2010 P Cr. L J 997

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Brig. (R.) MUHAMMAD FAROOQ MAAN and others---Petitioners

Versus

DIRECTOR-GENERAL, ANTI-CORRUPTION and others---Respondents

Writ Petitions Nos.22617, 22894, 7102 of 2009 and 1622, 888 of 2010, heard on 29th January, 2010.

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

----Art.199---Penal Code (XLV of 1860), Ss.109, 420, 468, 471 & 409--Prevention of Corruption Act (II of 1947), S.5---Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993), Ss.9 & 8---Abetment, cheating, forgery, using as genuine a forged document, criminal breach of trust and criminal misty induct by public servant---Constitutional petitions---Quashing of F.I.Rs.---Accused while acting as Chairman, Punjab Cooperative Board for Liquidation, had issued NOC with regard to certain lands, which was allowed by the Verification Committee consisting of eleven members---Said action had been reviewed by the respondent-Chairman which resulted in cancellation of mutation retrieve of the property and registration of the impugned F.I.Rs. against the accused persons---Accused after having been de-notified from their places of postings had granted the NOC in question in favour of the applicant on the very same day when such application was filed, despite the fact that they were very well aware that they had been de-notified---Said action taken in such haste, by itself, spoke volumes about the intentions of the accused---Admittedly, firstly NOC could not be issued without the permission of the Registrar and secondly deposit of liquidation charges was also essential for issuance of a valid NOC, which requirements had been over sighted by the accused---Indemnity under section 9 of the Punjab Cooperative Societies (Dissolution) Act, 1993, could only be sought by the accused if they had acted in good faith with due care and attention---Basic requirements for issuance of NOC having not been attended to by the accused, indemnity under aforesaid section 9 could not be stretched to their benefit, rather the action taken by the respondent-Chairman by initiating proceedings and getting the F. I. Rs. registered against the accused was very well protected by the said indemnity clause, as apparently no malice or mala fide was attributable to the action taken by the respondent---Allegations made in the F. I. Rs. were sufficient to highlight certain serious questions requiring thorough investigation and at present stage it was not just to guillotine the investigation process---High Court was to ensure protection of substantial cause of justice and not to deviate from its sacred duty on mere technicalities---Any member of Committee issuing the NOC in question, having been a silent spectator in the affair, could not be singled out at this stage, as his silence alone was sufficient to hold that he had shared the common intention---Status of every member of the Committee at the relevant time would be determined and evaluated during investigation, which was in progress---By virtue of section 8 of the Punjab Co-operative Societies (Dissolution) Act, 1993, the Chairman, every member, advisor, officer and employee of the Co-operative Boards shall be deemed to be public servant within the meaning of section 21 of the Pakistan Penal Code---Anti-Corruption Establishment Rules, as such were fully applicable to the case of accused---Courts have not only to protect the innocent citizens, but also to ensure that the persons (wherever and whosoever) found indulged in white collar crimes or at least alleged to be involved in such-like offences causing huge losses to national exchequer, must be taken to task, of course, by protecting their fundamental rights---Accused had been unable to make out a case whereby their any of the fundamental right was endangered by registration of the F.I.Rs, justifying exercise of Constitutional jurisdiction by High Court---Even otherwise, High Court in writ jurisdiction could not resolve the factual controversies, as recording of evidence was not permissible---High Court also could not assume the role of an Investigating Officer;--At the same time, High Court was conscious of the fact that by ordering quashment of the F.I.Rs. It might be acting beyond its jurisdiction in hampering the investigation process, which would result in guillotining a lawful process being carried by the concerned agency at the relevant forum, and interference by High Court at this stage would also upset the distribution of powers delicately balanced by the Constitution---Constitutional petitions were dismissed accordingly.?

Hamdard Cooperative Society v. Government of Sindh and others 1990 MLD 1060; Mian Khan v. Ghulam Mustafa and 6 others 1996 SCMR 654; Mst. Hameeda Begum v. Mazhar Hussain PLD 2009 SC Azad Kashmir 1; Col. Subah Sadiq v. M. Ashiq and others 2006 SCMR 276; Bashir Ahmad v. Zafar ul Islam PLD 2004 SC 298 and Imtiaz Ahmad's case 1994 SCMR 2142 ref.

(b) Administration of justice---

----Rules of procedure---Utility and purpose---All the rules of procedure are meant to serve the administration of justice---Technicalities of procedure should not be allowed to thwart the intention of law and the same should be avoided as far as possible---Basic purpose of procedure in the system of administration of justice is to keep and not to hinder the grant of right to the people---All rules of procedure are meant to aid and assist the main cause of justice---Procedural provisions should be subservient to cause of justice and not to restrict the powers of Court to pass an order, necessary for doing full justice in a case.

Mst. Hameeda Begum v. Mazhar Hussain PLD 2009 SC Azad (J&K) 1 ref.

----Art. 199-Constitutional jurisdiction---Scope---Quashing of F.I.R.---Where an offence appears to have been committed by accused, ordinary course of trial before the Court should not be allowed to be deflected by resorting to Constitutional jurisdiction of High Court---High Court has no jurisdiction to quash the F.I.R. by appreciating the documents produced by the parties, without providing chance to cross-examine or confronting the same---High Court would err in law to short circuit the normal procedure of law prescribed by Criminal Procedure Code, 1898, where alternative remedies are available to the party seeking the quashing of F.I.R.?

Col. Subah Sadiq v. M. Ashiq and others 2006 SCMR 276 ref.

Navid Rasul Mirza for Petitioner (in Writ Petition No.22617, 22894 and 7102 of 2009).

Ashtar Ausaf Ali, Mehrdin Mazari and Muzaffar Ahmed Mirza, for Petitioner (in W.P. No.1622 of 2010).

Hamid Khan and Mehrdin Mazari for Petitioner (in W.P.No.888 of 2010).

Muhammad Hanif Khatana, Advocate-General, Punjab for Respondent.

Ali Tipu Khan for PCBL with Nasir Jamil Khan, Deputy Director (Investigation) Anti-Corruption, Lahore.

Sarfraz Muhammad and Karamat Ali Khan for Respondents (in Application 16-C of 2009).

Date of hearing: 29th January, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1025 #

2010 P Cr. L J 1025

[Lahore]

Before Ijaz Ahmad Chaudhry, J

FAZAL MUHAMMAD---Petitioner

Versus

SECRETARY, HOME DEPTT. PUNJAB and 4 others---Respondents

Writ Petition No.3621 of 2010, decided on 12th March, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Penal Code (XLV of 1860), Ss. 302/109/148/149---Constitutional petition---Qatl-e-amd---Petition for shifting accused to other jail---Nephew of the petitioner who was convicted and sentenced to death was confined in death cell in Central Jail at place F'---Disturbance had taken place in said jail, number of prisoners had received injuries and three prisoners lost their live.---Nephew of the petitioner was found involved in the said incident, he was shifted to District Jail at place and the petitioner through his constitutional petition had sought re-shifting of accused to Central Jail at placeF'---Petitioner had not been able to show which of his nephew's fundamental right was being endangered by his shifting from Central Jail at place 'F'---Lot of disturbance was created by the convict prisoners of said jail and nephew of the petitioner also created serious law and order situation and he allegedly looted State property including jail factory articles along with hundred of other criminal elements--Three innocent prisoners had lost their lives while many had received injuries in the riot---High Court declined to interfere in the matter.

Khan Ghulam Ali Baloch for Petitioner.

Waqas Qadeer Dar, Asstt. A.G. for Respondents with Muhammad Ansar, Deputy Superintendent, Central Jail, Faisalabad.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1032 #

2010 P Cr. L J 1032

[Lahore]

Before Ijaz Ahmad, J

UMAIR YAQOOB and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.59 of 2007, heard on 31st March, 2010.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Injuries as shown in the postmortem report could not be attributed to accused who allegedly was armed with Chhuri, which at the time of recovery was not found stained with blood---Presence of accused at the place of occurrence was also not proved---One injury mentioned in postmortem report could not be attributed to any of the accused, because it was not found at the time of preparation of injury statement and medico-legal report; it seemed to be a callous device of some person having the charge of injured/deceased---Motive of infliction of said injury could be to entangle accused in more serious offence---Accused in circumstances, was acquitted of all the charges, and was released.

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

----Ss. 302(b), 324 & 336---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Accused was acquitted of the charge under S.302, P.P.C. as injury mentioned in report caused with a brick, could not be attributed to him---However, accused had caused another injury to the deceased with dagger---Seat of injury had shown that accused had caused those injuries with the intention to cause death of deceased, which amounted to an attempt to cause qatl-e-amd and he was convicted under S.324, P.P.C.---While considering tender age of the accused at the time of commission of offence, a lenient view was taken and he was sentenced to R.I. for six years---Accused was also convicted under S.336, P.P.C. for having caused Itlaf-i-Salahiyaat-i-Udw as the kidney of deceased was ruptured and found in pieces---Punishment for said offence was Qisas, but in causing similar injury to accused, there might be serious apprehension of his life---Chance of aggravation of the injury could not also be ruled out---Punishment of Qisas being not executable, accused would be liable to pay Arsh---Order accordingly.

Malik Jawad Khalid for Appellants.

Tanvir Mehmood, Deputy Prosecutor-General for Respondents.

Dr. Masroor Hussain Malik, Senior Registrar (BBH), Rawalpindi.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1051 #

2010 P Cr. L J 1051

[Lahore]

Before Ijaz Ahmad Chaudhry and Arshad Mahmood, JJ

NOOR MUHAMMAD----Appellant

Versus

AMIN and others----Respondents

Criminal Appeal No.86 of 1997 and Criminal Miscellaneous No.1518-M of 2007, heard on 13th July, 2009.

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

----Ss.540, 561-A, 428, 417(2-A)---Renal Code (XLV of 1860), Ss.440/447/148/149/302/324/411/379---Mischief committed after preparation made for causing death or hurt, criminal trespass and qatl-e-amd---Application for production of additional evidence---Scope---Petition under Ss.428 & 561-A, Cr.P.C. had been filed by the appellant/complainant for placing on record additional evidence in the shape of documents---Appellant/complainant had failed to give any reason as to why said documents were not placed on record when the trial was in progress and; the prosecution closed its evidence on 28-9-1996, whereas the requisite documents pertained to the year 1993 and 1994---Said documents were very much in the possession/knowledge of the complainant party during the trial till the closure of the evidence---Even otherwise, the judgment which the appellant/complainant wanted to place on the record was irrelevant for the purpose of decision of the appeal---Counsel for the appellant had failed to show any reason for placing the documents on the record as said documents could not improve the prosecution story---Under S.540, Cr.P.C. though the jurisdiction could be exercised, if the court would come to a definite conclusion that certain evidence was required and could be placed on the record for just decision of the case, but said evidence, could not be procured later on just to fill up the lacunas in the evidence---Case was not fit for allowing the application filed by the appellant/complainant.

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

----S. 417(2-A)---Penal Code (XLV of 1860), Ss. 302/324/379/411/109/148/149---Qatl-e-amd and theft---Appeal against acquittal---Disputed land was in possession of respondents/accused---Trial Court had rightly declared that the respondents/accused were in possession of the land in dispute; and it was the appellant/complainant party who had launched attack in order to take possession by force from the respondents, who had resisted their right of defence; and as a result of said aggression on the part of the appellant/complainant, said incident had taken place in which four persons had lost their lives; and two had received fire-arms injuries---Trial Court had come to definite conclusion on the basis of the evidence produced by the parties during the trial that complainant could not succeed in establishing their possession and the respondents/accused had a right to defend their possession over the said property---Story narrated by the appellant and other eye-witnesses was not believable---View adopted by the Trial Court was found to be based on the evidence on record---Acquittal of respondents/accused did not suffer from any illegality so as to call for interference of High Court with the impugned judgment---Trial Court had advanced valid and cogent reason for passing a finding of acquittal in favour of the respondents/accused and no legal justification existed to disturb the same---Appeal against acquittal was dismissed.

Sardarai and another v. The State PLD 1970 SC 212; Muhammad Ashraf v. Faiz Ali and others PLJ 1976 SC 190; Waryam and 3 others v. The State PLD 1975 Lah.152 and Muhammad Siddique and 2 others v. The State 1990 PCr.LJ 1867 ref.

----S. 417(2-A)---Appeal against acquittal---Distinction between appraisement of evidence in the appeal against conviction and in appeal against acquittal---In the appeal against conviction, appraisal of evidence was done strictly and in appeal against acquittal, same rigid method of appraisement was not to be applied; as there was already finding of acquittal given by the Trial Court after proper analysis of evidence on record---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---High Court, in an appeal against acquittal would not, in principle, ordinarily interfere and instead would give due weight and consideration to the findings of the court acquitting accused---Court would not interfere with the acquittal order merely because on reappraisement of the evidence, it would come to the conclusion different from that of the court acquitting accused; provided the conclusions were reasonably possible---Finding of acquittal was not sacrosanct, if the reasons given by the Trial Court were speculative or of artificial nature, or the findings were based on no evidence; or was the result of misreading or misinterpretation of evidence; or the conclusion drawn as to the guilt or innocence of accused, were perverse, resulting into miscarriage of justice,---Such finding could be interfered with in appropriate cases---Appeal against acquittal had distinctive features; and the approach to deal with the appeal against conviction was distinguishable from appeal against acquittal, because presumption of double innocence was attached in the later case---Order of acquittal could only be interfered with when it was found on the face of it as capricious, perverse, arbitrary or foolish in nature.

Yar Muhammad and 3 others v. The State 1992 SCMR 96 and Inayat Ullah Butt v. Muhammad Javed and others PLD 2003 SC 562 ref.

Syed Karamat Ali Naqvi for Appellant.

Nemo for Respondents.

Syed Faisal Raza Bokhari, Deputy Prosecutor-General for the State.

Date of hearing: 13th July, 2009.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1070 #

2010 P Cr. L J 1070

[Lahore]

Before Khawaja Muhammad Sharif, C. J. and Kh. Imtiaz Ahmed, J

ASAD MAHMOOD and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.335 and Murder Reference No.695 of 2006, heard on 8th April, 2010.

Penal Code (XLV of 1860)---

----Ss. 302(b), 337-A(i) & 337-F(ii)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Doctor who medically examined the dead bodies of the deceased found injuries on their persons with sharp-edged weapon and also with blunt weapon---Co-accused got recovered blood-stained dagger which was taken into possession and accused got recovered Danda and iron rod which were taken into possession---Ocular account in the case was fully corroborated by medical evidence---Present was neither a case of right of self-defence of person or property as not a single scratch was found on the body of any of accused persons nor that of grave and sudden provocation---Court was satisfied with the version given by the eye-witnesses before the Police and before the Trial Court, but the case of the prosecution, itself was that when the complainant party went to the house of accused person none of them was armed with any weapon; as it was also the case of the prosecution that when they exchanged hot words, accused party went into the house and took iron rod and dandas---Accused gave two blows with iron rod on the person of the deceased, but the finding of the Trial Court were to the effect that occurrence had taken place at the spur of the moment---Immediate cause of murder was shrouded in mystery---Complainant party was having a criminal history on their credit and they were responsible for the occurrence---Conviction of accused under S.302(b), P.P.C. though was maintained, but his death sentence was converted to life imprisonment with the benefit of S.382-B, Cr.P.C.---All the sentences were ordered to run concurrently---Appeal of co-accused, however was dismissed and conviction and sentence recorded against him by the Trial Court vide impugned judgment was maintained in toto.

Raja Ikram Ameen Minhas for Appellants.

Nemo for the Complainant.

Sh. Munir Ahmad, D.P.-G. for the State.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1089 #

2010 P Cr. L J 1089

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

MUHAMMAD IQBAL----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.401-J of 2006 and Murder Reference No.279 of 2004, heard on 31st March, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---F.I.R. which was recorded after 1-1/2 hours of the occurrence, could not be said to be delayed one--Eye-witnesses though were not residents of the place where the occurrence took place, but both of them had given reasons for their presence at the place of occurrence; and circumstances of the case had suggested that reasons given by them were plausible---Presence of eye-witnesses at the place of occurrence, was proved, in circumstances---Testimony of the eye-witnesses was supported by the medical evidence---Both the witnesses unanimously stated that accused made three fires at the deceased---No enmity whatsoever had been suggested to the eye-witnesses as to why they were deposing falsely against accused---Substitution of accused in such like cases was a rare phenomenon---Motive had not been challenged during the cross-examination on the prosecution witnesses---Prosecution witness in his cross-examination had stated that accused threw the pistol at the spot and the Police took the same into possession from the place of occurrence; in such circumstances recovery of the weapon of offence became doubtful and no reliance could be placed on the report of the Forensic Science Laboratory---Sufficient incriminating evidence was available on the record to connect accused with the commission of offence as both the eye-witnesses were consistent on the point that it was the accused who fired three shots at the deceased and their testimony found support from the medical evidence available on record---Conviction of accused under S.302(b), P.P.C. was maintained, in circumstances---Case of prosecution was that accused and deceased were fast friends and accused had no previous enmity---No premeditation existed on the part of accused to commit murder of the deceased---Case was of sudden fight as according to the motive set out in the F.I.R. the deceased owed certain amount to accused and accused committed the murder after an altercation in a heat of passion---Punishment of death, in circumstances was not warranted---Sentence of death was modified and altered into imprisonment for life, in circumstances.?

Ms. Afzaal Qureshi for Appellant (on State expense).

M.M. Alam Chaudhry, Addl. P.-G. for the State.

Date of hearing: 31st March, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1101 #

2010 P Cr. L J 1101

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD ISHAQ----Petitioner

Versus

JAVED TARIQ and others----Respondents

Writ Petition No.12676 of 2004, heard on 29th March, 2010.

Criminal Procedure Code (V of 1898)---

----S. 22-A---Penal Code (XLV of 1860), Ss.420 & 506---Constitution of Pakistan (1973), Art.199---Cheating---Constitutional petition---Quashing of F.I.R.---Petitioner sought quashing of F.I.R. registered at place L' in respect of cheques meant for a bank atI'---Justice of Peace/Sessions Court had dismissed the complainant's application for registration of case while constitutional petition was withdrawn by the complainant/respondent as he had managed to get a criminal case registered against the petitioner and his brother at L'---Petition of respondent for registration of case against petitioner, though had been withdrawn yet the order of Justice of Peace/Sessions Judge at 'L' dismissing application under S.22-A, Cr.P.C. was still in the field---Registration of impugned F.I.R. at was illegal and without jurisdiction---If respondent had any grievance, he should have got registered a case atI' and not at `L'---Impugned F.I.R. was lodged with mala fide intention; continuance of proceedings would be an abuse of process of court---Petition was allowed.

1998 MLD 2036 ref.

Agha I.A. Imran for Petitioner.

Waqas Qadeer Dar, Asstt. A.-G. with Ghulam Abbas, S.-I. for the Respondents Nos.2 and 3.

Nemo for Respondent No.1.

Date of hearing: 29th March, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1117 #

2010 P Cr. L J 1117

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Dr. KHALID AZIZ----Petitioner

Versus

MUDASSAR ALI and another----Respondents

Criminal Miscellaneous No.11632/CB of 2009, decided on 12th November, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.324, 337-C, 337-A(ii), 337-A(iii), 337-F(i), 337-F(ii), 427 & 34---Attempt to commit qatl-e-amd and mischief---Cancellation of bail, application for---Respondent/accused who was allegedly armed with dagger, had given repeated blows on vital parts of the body of the wife of the applicant/complainant---One of the injuries on the body of the victim fell under S.337-C, P.P.C., while the other one fell under S.337-A(ii), P.P.C. and maximum punishment under said both injuries was ten years---Even otherwise, it could be said that prima facie all the offences were made out against accused who made repeated blow with dagger---Earlier bail applications were dismissed and Trial Court had granted bail without considering the fact that the earlier bail applications moved by accused had been dismissed; and no fresh ground was available---Trial Court granted bail to accused on the ground that accused was minor, whereas according to Identity Card, accused was more than 21-1/2 years old at the time of incident---Trial Court, in circumstances was not justified in granting bail to accused---Bail granted to accused was cancelled, in circumstances.

2005 PCr.LJ 431 and PLD 1995 SC 34 ref.

Mian Pervez Hussain for Petitioner.

Mian Ismatullah D.P.-G. with Syed Hammad Raza. S.-I. for the State.

Ch. Shaukat Ali Javed for Respondent.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1125 #

2010 P Cr. L J 1125

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD ADNAN----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.13885/B of 2009, decided on 4th November, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302 & 324---Qatl-e-amd and attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---No eye-witness was of the occurrence and only allegation against accused was that he was seen along with co-accused near the place of occurrence---Subsequently, accused and one of said co-accused were declared innocent and discharge report was also prepared to their extent---Pistol though was shown to be recovered from the possession of accused, but as per M.L.C., injury caused to the deceased was declared to be inflicted with .12 bore gun---It was also evident from the record that no empty of pistol was collected by the Police from the spot---Later on another statement was made by the complainant that widow of the deceased along with other was nominated by excluding accused for commission of murder of the deceased and exonerated accused by executing the affidavit regarding the innocence of accused---Case against accused had fallen within the purview of S.497(2), Cr.P.C., he was admitted to bail, in circumstances.

Mian Parvaiz Hussain for Petitioner.

Ch. Amjad Hussain, D.P.-G. and A.S.-I. with record for the State.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1134 #

2010 P Cr. L J 1134

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

Mst. SHAZIA----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.23/B of 2010, decided on 28th January, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.364, 302 & 201/34---Kidnapping or abducting in order to murder, qatl-e-amd, causing disappearance of evidence of offence or giving false information to screen the offender---Bail, grant of---Further inquiry---Benefit of doubt---Delay of one year and ten months in lodging the F.I.R. of abduction and murder case---Petitioner was implicated on the basis of extra judicial confession of the co-accused with whom she was alleged to have been caught in compromising position and had murdered the deceased---Petitioner and the co-accused were implicated on the basis of extra judicial confession which had little evidentiary value unless corroborated by strong independent evidence---Unseen occurrence without direct evidence required further investigation---Petitioner was involved on the basis of suspicion and benefit of doubt should have gone to the accused/petitioner---Petitioner being a women, her case was also covered by proviso (2) of S.497, Cr. P. C. ---Bail was granted.

Mst. Naziran v. The State 1990 PCr.LJ 1630; Bachal and 3 others v. The State 2000 YLR 1828; Mst. Zuhran Bibi and another v. The State 2003 PCr.LJ 1909 and Ghulam Hussain v. The state 2004 PCr.LJ 288 ref.

Muhammad Tayyab Ghauri for Petitioner.

Rana Kashif Saleem Arfa, Law Officer for the State.

Mushtaq Ahmad, S.-I. with record.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1156 #

2010 P Cr. L J 1156

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

SHAFIQUE SHAH and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.1751 and Murder Reference No.859 of 2003, heard on 6th April, 2010.

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

---S. 302(b)/34---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Explanation offered by the complainant for not having reported the matter to police for seven days, as he had remained busy in the treatment of his deceased brother, was neither plausible nor acceptable---No crime empty having been recovered from the spot, recovery of guns at the instance of accused was of no consideration---Eye witnesses were not present on the spot at the time of occurrence---Complainant had got the case registered after seven days of the occurrence with due consultations and deliberations and substitution of the accused with the real culprits could not be ruled out---Motive alleged by prosecution was vague---Prosecution had to suffer for any negligence on the part of the police---Benefit of the slightest doubt in the case had to be given to the accused, whereas all the circumstances narrated by the prosecution had created doubts in the story---Accused were extended benefit of doubt and acquitted in circumstances.

Imran Ashraf and 7 others v. The State 2001 SCMR 424; Noor Muhammad v. The State and another 2010 SCMR 97; Muhammad Saleem v. The State 2010 SCMR 374 and Muhammad Akram v. The State 2009 SCMR 230 ref.

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

----S. 302(b)/34---Qatl-e-amd---Appreciation of evidence---Benefit of doubt, extension of ---Principle---Benefit of every doubt created in the case must be given to accused as a matter of right and not as a matter of grace---Many circumstances creating doubts were not necessary in this regard---Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused would 'twice him entitled to its benefits, not as a matter of grace and concession but as a matter of right.

Muhammad Akram v. The State 2009 SCMR 230 ref.

Ch. Ishtiaq Ahmad and Mian Zulfiqar Ali assisted by Ijaz Ahmad Bajwa for Appellants.

M.M. Alam, Addl. P.-G., Punjab for the State.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1178 #

2010 P Cr. L J 1178

[Lahore]

Before Sh. Ahmad Farooq, J

SARFRAZ AHMAD----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.2555/B of 2010, decided on 31st March, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324 & 337-D---Attempt to commit qatl-e-amd---Bail, refusal of---Accused was brother of deceased husband of the victim and there was no chance of his false implication in the case by the complainant---Victim had no issue out of her marriage with deceased who was the brother of accused---Allegation that accused wanted to murder the victim so that she could not inherit the estate of her deceased husband, could not be brushed aside, in circumstances---Weapon of offence i.e. pistol had been recovered from accused, which, prima facie proved the causing of a fire-arm injury by accused to the victim---Injury sustained by the victim had been declared as "Jaifah", which was punishable with ten years of imprisonment as provided in S.337-D, P.P.C.---Accused was also alleged to have committed the offence falling within the mischief of S.324, P.P.C., punishment of which also fell within the prohibitory clause of S.497(1), Cr.P.C.---Accused had remained absconder for at least one year and eight months prior to his arrest---No doubt, the bail could not be refused to an accused merely on the account of abscondence, but in the present case, accused even otherwise was not entitled to the grant of bail on merits---Accused, prima facie had a motive to commit qatl-i-amd of the victim---While deciding a bail application, the court had to make a tentative assessment of the available matter/evidence---Accused seemed to be a habitual offender as at least two other F. I. Rs. under various sections of P.P.C. stood registered against him---Reasonable grounds existed for believing that accused was guilty of offence, punishment of which fell within the prohibitory clause of S. 497(1), Cr.P.C.---Accused being not entitled to be released on bail, petition was dismissed, in circumstances.

Rai Salah-ud-Din Kharal for Petitioner.

Ch. Saif Ullah Cheema for the Complainant.

Muhammad Iqbal Chaudhry, D.P.G. with Tahir Mahmood, S.-I. for the State.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1185 #

2010 P Cr. L J 1185

[Lahore]

Before Khawaja Muhammad Sharif, C.J. and Manzoor Ahmad Malik, J

HABIB AHMAD and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.265, 202, 262 of 2005 and Criminal Miscellaneous No.632-M of 2008, decided on 4th February, 2010.

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

----Ss. 302(6), 324, 337-F(iii), 148 & 149---Qatl-e-amd and attempt to commit qatl-e-amd---Appreciation of evidence---One person had lost his life in the incident, while six persons received injuries among whom four appeared before the court and fully supported the prosecution case---Ocular account in the case was corroborated by the medical evidence furnished by Doctor regarding injuries on the persons of four injured prosecution witnesses---F.I.R. was promptly lodged---Superintendent of Police (Investigation) opined that it was the complainant party who was the aggressor, but the defence had not produced any witness to substantiate his version---Even otherwise opinion of police was inadmissible in evidence---Said statement of Superintendent of Police (Investigation) was of no avail to accused persons---None of the defence witness had received any injury during the course of occurrence---If both the versions i.e. the prosecution version and the version suggested by the defence were taken into juxtaposition, then the prosecution case appeared to be more plausible and convincing---Motive set out by the prosecution, the nature of injuries sustained by the injured and other circumstances of the case had suggested that it was a fight which sparked suddenly---Provisions of Ss.148 & 149, P.P.C., in circumstances, were not attracted and each of accused person was responsible for his individual act---Since none of accused had caused any injury to the deceased, conviction and sentence of all the four accused persons recorded under S.302(b)/149, P.P.C. for the murder of deceased, was set aside and they were acquitted from the said charge---Conviction and sentence so recorded under S.148, P.P.C. was also set aside and they were also acquitted from the said charge, however, conviction and sentence of three accused persons under S.324, P.P.C. and the injuries caused by them to the respective injured persons were maintained---Sentence of said accused persons under S.324, P.P.C. already served was treated to be sufficient to meet the ends of justice, however, the sentence awarded to them under S.337-F(iii), P.P.C. for the injuries caused by them to the respective injured prosecution witnesses and the amount of Daman was maintained.

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

----Ss. 148 & 146---Rioting---Ingredients of---Provisions of S.148, P.P.C. could be invoked, if accused was guilty of rioting as defined under S.146, P.P.C.---Most important ingredients of an offence under S.148, P.P.C. were that accused would be a member of an unlawful assembly as defined under S.141, P.P.C.; that accused would be armed with a deadly weapon or anything which, if used as a weapon of offence, was likely to cause death; that the members of an unlawful assembly must have a common object; and that accused was found guilty of rioting---If all or any of the said ingredients were missing one could not be convicted under S.148, P. P. C.

----S. 149---Unlawful assembly with common object---For invoking the provisions of S.149, P.P.C., the prosecution, must prove, not from conjectures and speculations, but through tangible and sufficient evidence that the offence was committed in prosecution of the common object of the unlawful assembly.

Muhammad Altaf and 5 others v. The State 2002 SCMR 189 ref.

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

----Ss. 302(6), 324 & 337-F(iii)---Criminal Procedure Code (V of 1898), S.417---Qatl-e-card and attempt to commit qatl-e-amd---Appeal against acquittal---Trial Court had rightly acquitted co-accused from the case as he was found not to be present at the spot and prosecution failed to prove its case against him during the trial beyond any shadow of doubt---Finding of acquittal rendered in favour of co-accused, could not be interfered with---Appeal against acquittal of co-accused, was dismissed, in circumstances.

Barrister Salman Safdar for Appellants (in Criminal Appeal No.265 of 2005) and Ali Hussain Mohsin for Appellants (in CRL.A. No.202 of 2005).

Bakhtiar Ali Rana for the State.

Munir Ahmad Bhatti, for the Complainant (in Criminal Appeal No.262 of 2005) and for Petitioner (in Criminal Miscellaneous No.632-M of 2008).

Date of hearing: 20th, 21st, 25th, 26th and 27 January, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1219 #

2010 P Cr. L J 1219

[Lahore]

Before Ijaz Ahmad Chaudhry, J

ABDUL AZIZ and 2 others---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No. 525 of 2005, heard on 12th April, 2010.

Penal Code (XLV of 1860)---

----Ss. 302(b)/34---Qatl-e-amd---Appreciation of evidence---Family members of the deceased had neither raised any hue and cry nor tried to rescue the deceased when he was dragged and given a beating by the accused in their presence---Prosecution witnesses had remained only as silent spectators at the scene of cringe and their conduct, besides being abnormal, had created doubt about the manner of occurrence---Eyewitnesses had made dishonest improvements in their statements and not spoken the truth---Ocular testimony was not corroborated by. any evidence---"Dandas" allegelly recovered from accused being not blood stained could not be said to have been used for the murder of the deceased---Evidence disbelieved qua the acquitted accused, who had caused the main injury to the deceased, could not be believed qua the present accused, who had been convicted and sentenced by Trial Court on the basis of surmises and conjectures---In view of admitted previous litigation between the parties false implication of accused in the case could not be ruled out---Accused were acquitted in circumstances.

Aamir Abdullah Khan Niazi for Appellants.

Ch. Amjad Hussain Deputy Prosecutor-General for the State.

Date of hearing: 12th April 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1253 #

2010 P Cr. L J 1253

[Lahore]

Before Sh. Najam-ul-Hasan and Syed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD YASEEN alias MITHOU and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.259 and Murder Reference No.175 of 2002, heard on 8th April, 2010.

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

----Art.10---Criminal Procedure Code (V of 1898), S.340(1)---High Court (Lahore) Rules and Orders, Vol. III, Ch. 24-C, R(1)---Right of accused to be defended by a counsel---Person arrested has a constitutional right to the services of a counsel and, therefore, he must be given reasonable opportunity to engage a counsel---Counsel so engaged must also be given reasonable opportunity to defend the accused---Basic principle underlying such exercise is that no one should be condemned unheard.

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

---Art. 133---Criminal trial---Cross-examination---Right of accused---Cross-examination of a witness is not just a formality, but is a valuable right of accused and best method to ascertain forensic truth---Where defence counsel is not available at the relevant time, court is under obligation to cross-examine the witnesses in order to ascertain the truth.

Wali Dad v. The State, 1997 MLD 1697;, Nazir Hussain v. Muhammad Yaqub, KLR 1986 Cr.C. 100 and S. Mahmood Alam Shah v. the State PLD 1987 SC 250 ref.

----S.540---Power to summon material witness etc.---Scope---Main theme underlying S. 540, Cr.P.C. is to empower the Court to adopt all possible devices in accordance with law to discover the truth and thus giving to it a free hand even to re-summon or recall an already examined witness in order to arrive at just decision of the case.

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

----Ss. 302(b)/34, 324/34, 394/34 & 460/34---Qatl-e-amd, attempt to commit qatl-e-amd, voluntarily causing hurt in committing robbery, joint lurking house-trespass by night---Remand of case due to striking off the right of accused to cross-examine prosecution witnesses---Accused had been regularly appearing before Trial Court on each and every date of hearing ---Constant non-appearance of defence counsel had obliged Trial Court to appoint a defence counsel at State expense or to offer the accused to cross-examine the witnesses or even to itself cross-examine them in order to ascertain the truth which was not done---By striking off the right of accused to cross-examine the prosecution witnesses their case had been prejudiced---Accused could not be penalized for the absence of their counsel without their fault---Trial Court at one stage had appointed a defence counsel to defend the cause of accused,. who had moved two applications for summoning the material eyewitnesses for cross-examination, but Trial Court did not decide the first application and dismissed the second one---Examination-in-chief without cross-examination had no legal value---Accused had no proper representation to cross-examine the witnesses---Convictious and sentences of accused were set aside in circumstances and the case was remanded to Trial Court for fresh decision after giving then opportunity to cross-examine the two ocular witnesses and providing legal assistance, if so required.

Wali Dad v. The State 1997 MLD 1697; Nazir Hussain v. Muhammad Yaqub KLR 1986 Cr.C. 100 and S. Mahmood Alam Shah v. the State PLD 1987 SC 250 ref.

Maqsood Ahmed Buttar for Appellant No.1 and Muhammad Anwar Bhinder for Appellant No.2.

Imtiaz Hussain Jaffery for the Complainant and Qazi Zafar Iqbal Additional Prosecutor-General for the State.

Date of hearing: 8th April, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1270 #

2010 P Cr. L J 1270

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

DARBAR ABBAS SHAH and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.351/J and Murder Reference No.900 of 2004, heard on 8th April, 2010.

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

----S. 302(b)/34---Qatl-e-amd---Appreciation of evidence---Defence plea taken by accused to have fired at the deceased in order to save his life did neither appeal to reason nor was acceptable---Timely lodged F.I.R. contained full details of the event, so also the inquest report---Presence of eye witnesses at the scene of occurrence was quite natural---Mistaken identity of accused was out of question, as incident had occurred in day time and accused were closely related to the complainant---Ocular evidence being consistent on all material and relevant aspects of the case inspired confidence and as such eye witnesses could not be termed as chance witnesses--Complainant being real paternal uncle of the accused, chances of their false implication and substitution by him were very rare---Main accused had fired at the chest of the deceased, which was supported by medical evidence and his conviction was maintained---Accused was also injured in the occurrence no serious enmity existed between the deceased and the accused, motive set up by the prosecution was not proved and immediate cause of the incident was not known---Death sentence of accused was altered to imprisonment for life in circumstances.

Mushtaq and 3 others v. The State PLD 2008 SC 1; Ali Sher and others v. The State 2008 SCMR 707; Abdullah and others v. The State and others 2006 PCr.LJ 1726 and Muhammad Javed v. The State 2007 YLR 1 ref.

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

----S.302(b)/34---Qatl-e-amd---Appreciation of evidence---Belated dispatch of crime weapon and empties to Forensic Science Laboratory---Effect---Delay in sending the empties and the crime weapon recovered in the case to Forensic Science Laboratory would destroy the evidentiary value of such piece of evidence.

Mushtaq and 3 others v. The State PLD 2008 SC 1 and Ali Sher and others v. The State 2008 SCMR 707 ref.

----S.302(b)/34---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Role attributed to accused in the F.I.R. was not supported by medical evidence and said fact had created doubt qua his presence at the spot at the time of occurrence---Benefit of doubt was extended to accused in circumstances and he was acquitted accordingly.

Ch. Farooq, Haider for Appellant.

M.M. Alam, Additional Prosecutor-General for the State.

Date of hearing: 8th April, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1296 #

2010 P Cr. L J 1296

[Lahore]

Before Manzoor Ahmad Malik, J

RIZWAN alias ABU-BAKAR---Appellant

Versus

THE STATE---Respondents

Criminal Appeal No. 800 of 2009, heard on 15th April, 2010.

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

----Ss. 376/511---Attempt to commit rape---Appreciation of evidence---Benefit of doubt---Statements of the victim girl and others prosecution witnesses had been recorded by police after seven days of the occurrence---Clothes of the victim were also taken into possession by the police after seven days and the victim was got medically examined eight days after the incident---Prosecution had not explained said inordinate delay---Explanation of police officer that delay occurred as the complainant wanted to protect his family honour was not plausible, because the same was at stake from the moment he had lodged the F.I.R.-Delayed recording of a witness statement under S. 161, Cr.P.C. without plausible explanation would make his credibility seriously suspicious---Benefit of doubt was extended to accused and he was acquitted accordingly.

Muhammad Khan v. Maula Bakhsh 1998 SCMR 570 ref.

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

----S.161--- Examination of witnesses by police---Delayed examination---Effect---Credibility of a witness becomes highly suspicious if his statement under S. 161, Cr.P.C. is recorded with delay without offering any plausible explanation therefor.

Muhammad Khan v. Maula Bakhsh 1998 SCMR 570 ref. Ahmad Nawaz Wattoo-I for Appellant. Muhammad Jameel Hassan Pasha for the Complainant.

Ch. Muhammad Zafar Khan, Deputy Prosecutor-General for the State.

Date of hearing: 15th April, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1321 #

2010 P Cr. L J 1321

[Lahore]

Before Sh. Ahmad Farooq, J

PERVAIZ JOHN alias PERVAIZ MASIH---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 3400/B of 2010, decided on 9th April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Pre-arrest bail, refusal of---Accused had issued a cheque in favour of complainant amounting to Rs. 12,00,000/- which had been dishonoured by the Bank due to non-arrangement of funds---Civil suit for rendition of accounts apparently had been instituted by the accused against the complainant in order to avoid the initiation of criminal proceedings by the complainant---Both the criminal and civil proceedings could run side by side and the accused, if guilty of an offence under section 489-F, P.P.C., could not be saved from being prosecuted merely because of pendency of civil proceedings---Deeper appreciation of material on record could not be done while deciding the pre-arrest bail petition---Prima facie, the complainant had no mala fida intention for false implication of accused in the case---Section 489-F,' P.P.C. had been inserted in the Penal Code with a view to curb the tendency of issuing cheques with dishonest intention to defraud the payee---Need of recording evidence to establish dishonest intention was not relevant for disposal of a pre-arrest bail petition---Accused was not entitled to the extraordinary concession of pre-arrest bail---Petition was dismissed accordingly.

2004 YLR 2748 and PLD 2009 Lah 401 ref.

Ch. Igbal Ahmad Dhudhi for Appellant.

Muhammad Iqbal Chaudhry, D.P.-G. and Allah Rakha, S.-I. for the State.

Muhammad Alamgir Khan for the Complainant.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1334 #

2010 P Cr. L J 1334

[Lahore]

Before Syed Shabbar Raza Rizvi and Habib Ullah Shakir, JJ

ZAFARULLAH KHAN---Appellant

Versus

SARWARI BEGUM and 2 others---Respondents

Intra-Court Appeal No. 380 of 2008, decided on 20th May, 2009.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 4 & 7---Intra-court appeal---Illegal dispossession---Dispute related to interim order passed by the Additional Sessions Judge under S.7 of Illegal Dispossession Act, 2005---Additional Sessions Judge accepted application filed by respondent under S. 7(1) of Illegal Dispossession Act, 2005 and observed that since, prima facie, appellant was not in lawful possession of the disputed property, an interim relief was directed to put respondent in possession of said property---S.H.O. concerned was also issued direction to get the possession of the disputed property restored to respondent--Constitutional petition was filed by the appellant against said order which was dismissed--Impugned order of Single Bench had clearly indicated that appellant violated order of the court below whereby appellant was restrained to interfere with possession of respondent---Appellant did not file constitutional petition with clean hands to seek a relief under constitutional jurisdiction---Even otherwise order of court below was of an interim nature and appellant still had to contest the main case under the Illegal Dispossession Act, 2005---Constitutional jurisdiction under Art. 199 of the Constitution, was not an appellate jurisdiction---Substantial and noticeable difference existed between appellate jurisdiction and constitutional jurisdiction which had not been appreciated while filing constitutional petition and the intra court appeal---Order passed by Single Bench did not suffer from any illegality or impropriety in the impugned orders.

Sahibzada Anwar Hameed for Appellant.

Rana Ashfaq Ahmad Shafi for Respondent No. 1.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1340 #

2010 P Cr. L J 1340

[Lahore]

Before Muhammad Yawar Ali, J

Sh. NAVEEDUR REHMAN---Petitioner

Versus

THE STATE and 2 others---Respondents

Writ Petition No. 5601 of 2010, decided on 16th April, 2010.

Penal Code (XLV of 1860)---

----S. 406---Criminal Procedure Code (V of 1898), Ss. 249-A & 265-K--Constitution of Pakistan (1973), Art. 199---Criminal breach of trust---Constitutional petition--Quashing of F.I.R.---Disputed question of facts could not be gone into by High Court while exercising its extraordinary Constitutional jurisdiction---If an offence had, prima facie, been committed, the same should be inquired into and tried by Trial Court---Inherent jurisdiction of High Court was not an alternative or additional jurisdiction---Accused had more than one alternative remedies before the Trial Court under the Code of Criminal Procedure i.e., under Ss. 249-A, Cr.P.C. & 265-K, Cr.P.C.---Constitutional petition seeking quashing of F.I.R., therefore, was not competent---Quashing of F.I.R. in the case would amount to short circuiting the normal procedure of law in exercise of equitable jurisdiction, which was not permissible under the law---Constitutional petition was dismissed accordingly.

Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276; Dr. Ghulam Mustafa v. The State and others 2008 SCMR 76; A Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353 and Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192 ref.

Muhammad Sarwar Awan for Petitioner.

Rana Naveed Ashiq for Respondent No. 3/Complainant.

Syed Nayyar Abbas Rizvi, Assistant Advocate-General Punjab and Mian Makhdoom, A.S.-I. for the State.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1355 #

2010 P Cr. L J 1355

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

MUHAMMAD AFZAL alias Mithu---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.652 and Murder Reference No.286 of 2004, heard on 1st April, 2010.

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

----Ss. 302(b), 324 & 337-F(ii)---Qatl-e-amd, attempt to commit qatl-e-amd and hurt "ghayr jaifah"---Appreciation of evidence---Sentence, reduction in---Eye-witnesses had fully supported the prosecution case and explained their presence at the venue of crime---Presence of eye-witness, who had suffered an injury in the occurrence, on the spot was not disputed and he had supported all the material aspects of the case---Medical evidence and positive report of Serologist regarding the dagger recovered at the instance of accused, had corroborated the ocular testimony---Accused had admitted the occurrence taking the plea of having acted in his defence by causing "Chhuri" injuries to the deceased and the injured witness, on an attempt of eight persons to abduct him---Defence plea was highly improbable and an afterthought story---Prosecution had proved its case against the accused beyond any doubt and his convictions were maintained accordingly---Motive alleged by prosecution had been disbelieved---What had actually happened prior to the occurrence was not known---No premeditation or deliberation was involved in the incident, which had taken place at the spur of the moment---Accused had caused only one injury to the deceased and did not repeat the same--- Death sentence awarded to accused under sections 302(b), P.P.C. was altered to imprisonment for life in circumstances---Other sentences of accused were maintained---All the sentences were directed to run concurrently.

Abdul Rehman v. The State 2004 YLR 778; Muhammad Ayaz Khan v. Murtaza and others 2008 SCMR 984; Allah Bakhsh v. Shammi and others PLD 1980 SC 225 and Farooq Khan v. The State 2008 SCMR 917 ref.

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

----Ss. 302(b), 324 & 337-F(ii)---Qatl-e-amd, attempt to commit qatl-e-amd and hurt "ghayr jaifah"---Appreciation of evidence---Principle---Conviction in any murder case can be based on the testimony of a single witness, if the same is found reliable by the court---Emphasis is on the quality of evidence and not on its quantity.

Allah Baksh v. Shammi and others PLD 1980 SC 225 and Farooq Khan v. The State 2008 SCMR 917 ref.

Asif Hussain Sheikh for Appellant.

M.M. Alam, Additional Prosecutor-General Punjab for the State.

Date of hearing: 1st April, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1371 #

2010 P Cr. L J 1371

[Lahore]

Before Sardar Tariq Masood, J

SHABBIR AHMAD and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos.2188-B and 2297-B of 2009, decided on 1st January, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/324/337-A(i)(v)/452/148/149---Qatl-e-amd, attempt to commit qatl-e-amd, Shajjah and house trespass---Bail grant of---Simple injuries on the person of prosecution witnesses were attributed to accused, which were neither specifically mentioned nor the same had attracted the prohibitory clause of section 497(1), Cr.P.C.---Accused we-e not assigned any injury to the deceased and their vicarious liability in the murder of the deceased was yet to be determined at the trial---Guilt of accused, therefore, needed further inquiry---No identification parade was conducted in the case---Two co-accused with similar role had already been bailed out by Sessions Court---Courts had always favoured the accused on the rule of consistency---Accused were admitted to bail in circumstances.

Abdul Aziz v. The State 1996 SCMR 1993; Ahmad and another v. State 2008 MLD 1293; Muhammad Akram v. the State 2005 PCr.LJ 596, Mehar and another v. The State 2000 PCr.LJ 1178; Liaquat Ali v. The State 2008 MLD 102; Lallo v. The State 2003 MLD 1159; Muhammad Saeed v. The State 1997 MLD 1371; Khadim Hussain v. The State 1983 SCMR 124; Manzoor Ahmad and others v. The State PLJ 1999 Cr.C. 570 and Muhammad Daud and another v. The State and another 2008 SCMR 173 ref.

Malik Sadiq Mehmood Khurram for Petitioners (in Criminal Miscellaneous No.2188-B of 2009).

Muhammad Farooq Warind (in Criminal Miscellaneous No.2297-B of 2009).

Muhammad Afzal Pansota, Additional Prosecutor-General and. Nazir Ahmad, A.S.-I, for the State.

Raja Muhammad Sohail Iftikhar for the Complainant.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1380 #

2010 P Cr. L J 1380

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

ANWAR-UL-HAQ---Appellant

Versus

THE STATE---Respondents

Criminal Appeal No. 971 and Murder Reference No.215 of 2004, heard on 22nd March, 2010.

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

----S. 302(b)---Qatle-e-amd---Appreciation of evidence---Promptly lodged F.I.R. had ruled out the possibility of deliberations and consultation on the part of the complainant--Ocular account of occurrence was trustworthy and confidence inspiring and was supported by medical evidence---Eye-witnesses, though closely related to the deceased, had no enmity with the accused and they had proved their presence at the scene of occurrence---Conviction of accused, which was not challenged by him, was consequently maintained under S.302(b), P.P.C.---Co-accused with almost similar role -tad been acquitted by Trial Court---Venue of occurrence was not owned by accused party---Motive alleged in the F.I.R. was not probable---Exact happening at the spot before the incident was not known---Parties had no previous enmity--- Ocular testimony in examination-in-chief was not supported by medical evidence---Cumulative consideration of the said facts had made the case one of mitigation and not of capital punishment---Sentence of death of accused was reduced to imprisonment for life in circumstances.

Iftikharul Hassan v. Israr Bashir and another PLD 2007 SC 111; Ghulam Muretaza v. State 2004 SCMR 4; Faqir Ullah v. Khalil-uz-Zarnan 1999 SCMR 2203; Muhammad Akram v. State 2003 SCMR 855 and Abdus Salam v. State 2000 SCMR 338 ref.

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

----Ss. 302(a) & 302(b)---Qatl-e-amd---Qisas---Tazir---Sentence---Distinguishing features---In the case of "Qisas" under S.302(a), P.P.C. court has no discretion in the matter of sentence, whereas in case of "Tazir" court may award either of the sentence provided under S.302(b), P.P. C., according to the circumstances of the case.

Iftikharul Hassan v. Israr Bashir and another PLD 2007 SC 111 ref.

Ch. Ijaz Akbar for Appellant.

M.M. Alam Chaudhry, Additional Prosecutor-General for the State.

Date of hearing: 22nd March, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1389 #

2010 P Cr. L J 1389

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

MUHAMMAD TUFAIL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 89 and Murder Reference No. 110 of 2004, heard on 19th April, 2010.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Prosecution story was not only highly improbable, but was also stuffed with ostensible doubts---Eye-witness account of occurrence did not inspire confidence---Medical evidence was not in line with ocular testimony---Prosecution had failed to prove its motive---Crime empty having sent to Forensic Science Laboratory after the recovery of the gun from the accused, report of the said laboratory was doubtful---Benefit of every doubt in the case had to be given to the accused not as a matter of grace but as a matter of right---Accused was acquitted in circumstances.

Noor Muhammad v. The State and another 2010 SCMR 97; Muhammad Sadiq v. Muhammad Sarwar 1979 SCMR 214; Hakim Ali v. The State 1971 SCMR 432; Ameenullah v. State PLD 1976 SC 629; Muhammad Ashfaq v. The State 1995 SCMR 1321; Muhammad Akram v. The State 2009 SCMR 230 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Motive proof of---Principles---When motive is alleged but not proved then ocular evidence is required to be scrutinized with great caution---Prosecution though not called upon to establish motive in every case, yet once it has set up a motive and failed to establish it, then prosecution must suffer the consequences and not the defence---Where motive is an important constituent and is found by the court to be untrue, then the court should be on guard to accept prosecution story.

Noor Muhammad v. The State and another 2010 SCMR 97; Muhammad Sadiq v. Muhammad Sarwar 1979 SCMR 214; Hakim Ali v. the State 1971 SCMR 432 and Ameenullah v. State PLD 1976 SC 629 ref.

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Principle---In case of doubt, the benefit thereof must accrue in favour of the accused as a matter of right and not as a matter of grace.

Muhammad Akram v. The State 2009 SCMR 230 ref.

Badar Munir Malik assisted by Ijaz Ahmad Bajwa at State Expense for Appellant.

M.M. Alam Chaudhry Additional Prosecutor-General Punjab for the State.

Rana Asadullah Khan for Complainant.

Date of hearing: 19th April, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1411 #

2010 P Cr. L J 1411

[Lahore]

Before Shahid Hameed Dar, J

Mst. TAYYABAH KIRAN---Petitioner

Versus

ASJ and others---Respondents

Writ Petition No. 2030 of 2007, decided on 5th May, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Constitution of Pakistan (1973), Art.199---Constitutional petition---Respondent filed petition before Ex-officio Justice of Peace against petitioner and Police Officials, for returning the cheques forcibly obtained from the respondent---Justice of Peace directed Police Officials to retrieve the cheques from the petitioner and return the same to respondent---Petitioner contended that Justice of Peace had assumed the charge of an investigating officer by passing the order for return of cheques---Validity---Petitioner was involved in a monetary dispute with her real sister who was wife of respondent---Though respondent did not owe a single penny to the petitioner yet he was compelled by high-ranking Police Official to issue cheques in favour of petitioner, thereby abusing the process of law and authority---Petitioner should have agitated the matter before competent civil court for redressal of her grievance---Respondent could not be held responsible for acts and deeds of his wife who was an independent individual responsible for her own deeds---Impugned order did not suffer from any illegality---Petition was disposed of accordingly.

Naseer Ahmad Awan for Petitioner.

Abdul Ghaffar Khan for Respondent No. 3.

Aamir Jalil Siddiqui, Additional Advocate-General and Reasat Ali S.-I.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1428 #

2010 P Cr. L J 1428

[Lahore]

Before Waqar Hassan Mir, J

NADEEM AHMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 4002-B of 2010, decided on 4th May, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/201/395/34---Qatl-e-amd, causing disappearance of evidence of offence and dacoity---Bail, grant of---Case was totally based on circumstantial evidence and the Police had not collected any cellular data by way of which one could assess that the calls were made by accused/his accomplice to the complainant and prosecution witnesses---Two of co-accused had already been granted bail by the High Court and accused had claimed the same treatment---Earlier bail petition of accused was withdrawn from High Court with a direction to the Trial Court to conclude the trial with a period of four months, but fourteen months had passed, the trial was not concluded, whereas speedy trial was a right of accused---Accused was allowed bail, in circumstances.

Abdul Khaliq Safrani for Petitioner.

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

Ali Ashraf, S.-I. with record.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1435 #

2010 P Cr. L J 1435

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD SHAHID---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 2554/B of 2010, decided on 24th March, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.420/468/471/489-F---Cheating, forgery, using forged document and dishonouring of cheque---Bail, grant of---Further inquiry---Allegation, if at all could be taken true as it was, same ex facie attracted an offence under Ss.420/489-F, P.P.C. and not under Ss.468 & 471, P.P.C.---It was because of the fact that dishonouring of the cheque was another matter, whereas the issuance of cheque in respect of the account of someone else on the face of things the other and same could amount to defrauding the complainant or cheating him---Such an act or offence was covered under the provisions of S.420, P.P.C. which offence was bailable---No forgery was found in the issuance of cheque, if at all, it could be relating to the account of someone else; it was because of the fact that it had not been shown that the account of that other person did not exist---Case of accused, in circumstances was one of further inquiry into his guilt covering under S.497(2), Cr.P.C.---Offence under S.489-F, P.P.C. was not covered within the prohibitory clause of S.497(1), Cr.P.C.---Grant of bail in such like cases was a rule and refusal an exception---Accused was behind the bars for the last more than 2-1/2 months and a previous non-convict---Offence under S.471, P.P.C. was bailable while the one under S.468, P.P.C. was not covered with the prohibition contained in S.497(1), Cr.P.C.---Accused having succeeded to make out a case for post-arrest bail, he was admitted to bail, in circumstances.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Razi Ahsan v. The State and another PLD 2008 Kar. 212; Kashif Khan v. The State 2009 PCr.LJ 1418; Muhammad Asim Siddiqui v. The State 2007 MLD 1234; Iftikhar Akbar v. The State 2008 MLD 159; Allah Jawaya v. The State 2006 YLR 1105; Saman Imtiaz v. The State 2009 PCr.LJ 805; Muhammad Ayyub v. The State 2007 YLR 3095 and Jehan Khan v. The State PLD 2006 Lah. 302 ref.

Azam Nazir Tarar for Petitioner.

Ch. Abdul Razzaq, D.P.-G. for Respondent No.1.

Tariq Hameed Khokhar for Respondent No.2.

Muhammad Ahsan Bhoon and Mushtaq Ahmad, S.-I. with police record for the State.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1442 #

2010 P Cr. L J 1442

[Lahore]

Before Shahid Hameed Dar, J

Sheikh MUHAMMAD NAFEES---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, HAFIZABAD and 13 others---Respondents

Writ Petition No. 5353-Q of 2008, decided on 25th May, 2010.

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

---Ss. 3, 4, 5 & 8---West Pakistan Land Revenue Rules, 1968, R.67-B---Constitution of Pakistan (1973), Art.199---Constitutional petition---Scope and application of Illegal Dispossession Act, 2005--Petitioner was dispossessed of land which he had inherited from his father---Revenue authorities looked into the matter on application of petitioner and found that respondents were in illegal possession of disputed land and ordered the respondents under sub-rule 7 of Rule 67-B of West Pakistan Land Revenue Rules, 1968 to deliver possession of land to the petitioner---Warrant Dakhal was duly issued in favour of petitioner---Respondents filed suit in respect of said land which was dismissed while appeal also met the same fate---Revenue authorities handed over possession to petitioner but respondents demolished structure, boundary wall constructed by petitioner and took over the possession of disputed land illegally and forcibly---Petitioner filed complaint before Additional District Judge who examined the complainant under section 200 of Cr.P.C. and summoned all accused persons/respondents to face trial but dismissed complaint at indictment stage---Petitioner/complainant contended that by dispossessing him from disputed land, respondents had committed the offence within the meanings of provisions of Illegal Dispossession Act, 2005, notwithstanding the pendency of civil suit between the parties---Respondents/accused contended that during pendency of civil suit, criminal proceedings could not be initiated about the same matter between the same parties and that the petitioner had filed complaint to pressurize them---Validity---Pendency of civil suit was no bar to initiation of criminal proceedings and both civil and criminal cases could proceed simultaneously---Illegal Dispossession Act, 2005 was not meant only for checking illegal activities of land grabbers, Qabza groups or persons habitually involved in such-like acts but also encompassed identical land grabbing/snatching activities of individuals---Offence alleged by complainant was covered by definition of S. 3 of the Illegal Dispossession Act, 2005---Evidence produced by complainant and revenue record established that petitioner was lawful owner of the land in question which had been transgressed and occupied by respondents/accused illegally---Sufficient evidence thus was available to prosecute the accused persons---Constitutional petition, therefore, was allowed and impugned judgment dismissing complaint was set aside---Complaint filed by petitioner was held to be deemed to be pending before Trial Court which was directed to decide the same expeditiously on merits.

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

----S. 3---Scope and application of Illegal Dispossession Act, 2005---Act was not only meant for checking illegal activities of land grabbers, Qabza groups or persons habitually involved in such-like act but also covered identical land grabbing/snatching activities of individuals.

Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah. 231 and Rahim Tahir v. Ahmad Jan and 2 others PLD 2007 SC 423 distinguished.

Rehmatullah v. Abdul Aziz and another 1974 PCr.LJ 541; Sheikh Ahmad v. Sheikh Muhammad Younas 1971 PCr.LJ 331 and Muhammad Shafi v. Deputy Superintendent of Police Narowal and 5 others PLD 1992 Lah. 178 ref.

Rai Zameer-ul-Hassan for Petitioner.

2010 P Cr. L J 1471

[Lahore]

Before Ch. Iftikhar Hussain, J

QAISER HUMAYUN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 2922-B of 2010, decided on 1st April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324/452/148/149---Attempt to commit qatl-e-amd and house-trespass---Bail, grant of---Further inquiry---Fire ascribed to accused was not on the vital part of the body of the wife of the complainant and there was no repetition of fire by the accused---Co-accused who were ascribed fire shots to complainant and others were granted bail observing that fire shots ascribed to them were not on the vital part of the victims and that they had not repeated the same---Said reasons were equally available in the case of accused---Rule of consistency was attracted to accused, in circumstances---Narration of the F.I.R. did not clearly indicate that as to which accused had caused two injuries on the person of the wife of the complainant---Question of vicarious liability of accused was to be gone into at trial---Offence under S.452, P.P.C. was not covered within the prohibitory clause of S.497(1), Cr.P.C.---Rifle though was shown to have been recovered from accused, but no crime-empty was found from the spot---Question regarding the guilt of accused, in the matter definitely called for further probe or inquiry, in circumstances---Mischief of subsection (2) of S.497, Cr.P.C. was attracted to the case of accused--- Accused, in circumstances had become entitled to bail as of right and not mere grace and he could not be detained unnecessarily---Accused was behind the bars for over six months, he was also stated to be a previous non-convict---Accused was admitted to bail, in circumstances.

Bushra Qamar for the Petitioner.

Ch. Abdur Razzaq, D.P.-G. and Gulzar Ahmad, S.-I. with police record for the Respondent No. 1.

Ch. Muhammad Ansar Mahmood Dhothar for the Respondent No.2.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1482 #

2010 P Cr. L J 1482

[Lahore]

Before Sardar Tariq Masood, J

MUHAMMAD MAKKI---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No. 2270-B of 2009, decided on 29th December 2009.

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

----S. 498---Penal Code (XLV of 1860), S. 377/511---Attempt to commit sodomy---Pre-arrest bail, grant of---Accused had allegedly taken the complainant inside the school and tried to commit sodomy with him after removing his "Shalwar"---Complainant had compromised with the accused voluntarily outside the court---Offence under S. 377, P.P.C. was not compoundable under S. 345(1) Cr.P.C, but the factum of compromise could be considered as a ground for grant of bail in the interest of justice and equity---If the complainant party was no longer willing to prosecute a matter any further, then court would not compel the parties to do so, as the saying goes, "you can take the horse till the water but you cannot make him drink"---Judicial notice of compromise in bail matters could be taken even in non-compoundable offences---Ad interim pre-arrest bail granted to accused was confirmed in circumstances.

Ghulam Ali v. The State 1997 SCMR 1411; Muhammad Akbar v. The State 1997 MLD 3096; Niaz Ahmad v. The State 1987 MLD 1780 (1) and Mussarat Elahi alias Bibi v. The State 1997 PCr.LJ 1193 rel.

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

----Ss. 497, 498 & 345(1)---Bail---Compromise in non-compoundable offences---Effect---Judicial notice of compromise in non-compoundable offences, not mentioned in S. 345(1) Cr.P.C., can be taken and the same may be considered as a ground for grant of bail in the interest of justice and equity.

Ghulam Ali v. The State 1997 SCMR 1411; Muhammad Akbar v. The State 1997 MLD 3096; Niaz Ahmad v. The State 1987 MLD 1780 (1) and Mussarat Elahi alias Bibi v. The State 1997 PCr.LJ 1193 rel.

Ghazanfar Ali Khan for Petitioner.

Ch. Muhammad Afzal Pansota, Additional Prosecutor-General and Muhammad Arshad A.S.-I. for the State.

Ch. Shoukat Ali Goraya for the Complainant.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1489 #

2010 P Cr. L J 1489

[Lahore]

Before Shahid Hameed Dar, J

THE STATE---Petitioner

Versus

MANZOOR AHMAD KHAN---Respondent

Criminal Miscellaneous No.27-M of 2009, decided on 11th June, 2010.

Criminal Procedure Code (V of 1898)---

----S. 514---Penal Code (XLV of 1860), S.489-F---Forfeiture of surety bond---Remission of penalty---Principle---Respondent stood surety for the accused, seeking bail in a case under S.489-F, P.P.C. and submitted surety bonds of Rs.200, 000 but the accused failed to enter appearance before High Court without just cause so the bonds submitted by surety were forfeited and show-cause notice was issued under S.514, Cr.P.C.---Surety contended that he had handed over the accused to police and left himself at the mercy of the court pleading that he had submitted the bonds out of sympathy and benevolence entitling him to the leniency---Validity---Balance needed to be maintained among leniency, undue generosity and undue severity so that none of the parties was prejudiced---Each case had to be dealt with according to attending circumstances---Law did not place any embargo on forfeiture of the whole amount of the bail bonds if necessary---Portion of the amount to be remitted or forfeited could be decided/determined by circumstances of each case---Surety had left himself at the mercy of the court citing his financial constraints--Surety, in circumstances, was held to be dealt with leniently in the interest of justice and was ordered to deposit Rs. 75,000 in the treasury within 30 days failing which the said amount would be recovered as arrears of land revenue.

Sardar Khan v. Crown PLD 1952 Lah. 645 rel.

Dildar and another v. The State PLD 1963 SC 47 fol.

Ustad Muhammad Iqbal for Petitioner.

Sahibzada M.A. Amin Mian, Additional Prosecutor-General for Respondent.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1494 #

2010 P Cr. L J 1494

[Lahore]

Before Muhammad Anwar Bhaur and Manzoor Ahmad Malik, JJ

IFTIKHAR AHMAD alias KHARI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No. 387/J of 2003 and Murder Reference No. 615 of 2003 decided on 5th April, 2010.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---After the murder of the complainant and other eye-witness during the pendency of trial, only the present eye-witness had deposed in the case, whose presence at the scene of occurrence was highly doubtful, as he had neither given any reason for his presence on the spot, nor had he taken or accompanied the injured deceased to the Hospital---Going of the deceased in the street to urinate at 7 p.m. in winter season despite the bathroom being available in the "Dheuri", where he was sitting along with others prior to the occurrence, was not probable---Alleged farfetched 22/23 years old motive of the case was not proved---Eye-witness had improved his previous statement at the trial just to bring his statement in line with medical evidence, as such his testimony was not corroborated by medical evidence---No crime empty having been recovered from the place of occurrence, recovery of pistol from the accused, though reported to be in working condition by Forensic Science Laboratory, was of no avail for the prosecution---Reports of the process server on the warrants of arrest and proclamation, had not been put to the accused in his statement recorded under S. 342, Cr. P. C.---Abscondence of accused, though might be a relevant fact, yet the same could not be used for conviction on capital charge alone, in the absence of trustworthy and corroborated ocular evidence---Accused was acquitted on benefit of doubt in circumstances.

Qudratullah v. Maisam and another 2005 PCr.LJ 1667; Rasool Muhammad v. Asal Muhammad and another 1995 SCMR 1373; Mst. Alia alias Rani v. The State 2005 YLR 2140; Thiraj and another v. The State 1989 PCr.LJ 760; Abdul Sattar v. The State 1974 PCr.LJ 208; Muhammad Farooq and another v. The State 2006 SCMR 1707; Muhammad Akram v. The State 2009 SCMR 230 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Abscondence of accused---Principles---Abscondence of accused in the case may be a relevant fact, but the same cannot be used alone for entailing conviction on capital charge, when ocular account is not trustworthy and is not corroborated by any other source.

Abdul Sattar v. The State 1974 PCr.LJ 208; Qudratullah v. Maisam and another 2005 PCr.LJ 1667 and Muhammad Farooq and another v. The State 2006 SCMR 1707 ref.

Naseem Sabir Chaudhry assisted by Mian Abdul Qayyum Anjum for Appellant.

Syed Naeem Shahid assisted by Shakeel Anwar Vista for the Complainant.

M.M. Alam, Additional Prosecutor-General for The State.

Date of hearing: 25th March, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1515 #

2010 P Cr. L J 1515

[Lahore]

Before Sh. Najam-ul-Hasan and Muhammad Anwaarul Haq, JJ

MUHAMMAD AKRAM----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.24-J of 2006 and M.R.No. 326 of 2005, heard on 30-6-2010.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Occurrence had taken place at 05.45 a.m. in the end of the month of November---Possibility existed that no sufficient light was available at that time---Conflict was found in the statements of eye-witnesses and medical evidence with regard to seat of injury on the body of deceased, and witnesses had tried to change their version just to bring the case in line with the medical evidence---Such a change in the statements of the witnesses had clearly indicated that they had made improvements in their statements---F.I.R., did not mention as to the nature of weapon; it was only stated that accused was armed with the Fire-arms, whereas while appearing before the court they stated that at the relevant time accused was armed with pistol---Circumstances had indicated that the witnesses had not seen the occurrence---Motive had not been proved--Crime empty taken into possession by the Investigating Officer, was sent to the Fire-arm Expert 24 days after taking into custody---Pistol was recovered on the pointation of accused three days after his arrest and was sent to Fire-arm Expert about one and half year of its recovery---No evidence was available as to in whose custody said pistol remained after its recovery and till it was sent to the Fire-arm Expert--Such broken chain regarding the custody of the crime weapon had made the whole recovery proceedings highly doubtful---Recovery and the positive report of the Fire-arm Expert could not be relied upon in circumstance---Witnesses had not seen the occurrence and the prosecution was not telling true facts---Prosecution having not proved its case against accused beyond reasonable doubt, extending benefit of doubt in favour of accused, his conviction and sentence was set aside and he was acquitted of the charge and was released. ?

Muhammad Akram v. The State 2009 SCMR 230; Muhammad Rafique and others v. The State and others 2010 SCMR 385 and Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 ref.

Muhammad Mumtaz Faridi for Appellant.

Qazi Zafar Iqbal, Addl. Prosecutor-General for the State.

Zulfiqar Ali for the Complainant.

Date of hearing: 30th June, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1523 #

2010 P Cr. L J 1523

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, J

ASGHAR ALI and another---Appellants

Versus

THE STATE-Respondent

Criminal Appeal No. 673, Criminal Revision No.980 of 2004 and Murder Reference No.296 of 2004, decided on 26th April, 2010.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Registration of F.I.R. was not delayed---Complainant, father of the deceased, had mentioned all the important and material aspects of the case in the F.I.R., which had proved his presence at the scene of occurrence---Other eye-witness, real brother of the deceased, had corroborated the complainant and his statement inspired confidence---Eye-witnesses, though related to deceased, had no enmity to falsely depose against the accused and both of them were found to have witnessed the incident---Confidence inspiring testimony of interested witnesses could be made a basis for maintaining conviction of accused--- Ocular account was almost in line with medical evidence---Conviction of accused, thus, was upheld---Eye-witness had made certain improvements in his statement; it was also not sure as to which of the two fatal injuries on the body of the deceased had been caused by the accused---Sentence of death of accused was converted into imprisonment for life in circumstances.

Jehangir v. The State 2002 SCMR 1986; Muhammad Yaqoob v. The State 2008 SCMR 1082; Israr Ali v. The State 2007 SCMR 525; Farman Ali and others v. The State and others PLD 2007 Lah. 495; Farooq Khan v. The State 2008 SCMR 917; Nazir v. The State PLD 1962 SC 269; Shehruddin v. Allhaj Rakhio 1989 SCMR 1461; Allah Dad and another v. The State 1995 SCMR 142; Saeed and others v. The State 1984 SCMR 1069; Federation of Pakistan v. N.-W.F.P. and another PLD 1990 SC 1172 and Piran Ditta's case PLD 1976 SC 300 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Interested witness---Principle---Statement of an interested witness can be taken into consideration for corrobration and his mere relationship with the deceased is not sufficient to discredit him, particularly when he has no motive for false involvement of accused.

Farooq Khan v. The State 2008 SCMR 917; Nazir v. The State PLD 1962 SC 269 and Shehruddin v. Allha Rakhio 1989 SCMR 1461 ref.

----S.302(b)/34---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---No specific overt act was attributed to accused except that he along with his two co-accused had raised a joint "Lalkara" and thus to his extent provisions of S. 34, P.P.C. were not attracted---Involvement of innocent persons along with actual culprits was very common---Accused being the real brother of main accused, his false implication in the case could not be ruled out---Benefit of doubt had accrued in favour of accused as a matter of right---Accused was acquitted accordingly.

Muhammad Akram v. The State 2009 SCMR 230 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt, grant of---Principle---Any doubt arising in the prosecution case makes the accused entitled to its benefit as a matter of right and not as a matter of grace---Single circumstance creating reasonable doubt in a prudent mind qua the guilt of accused is sufficient to allow him benefit of doubt---Many circumstances creating doubts are not required for the purpose.

Muhammad Akram v. The State 2009 SCMR 230 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

Azam Nazir Tarar for Appellants.

M.M. Alam Chaudhry, Additional Prosecutor-General for the State.

Rai Zameerul Hassan Kharal for the Complainant.

Date of hearing: 26th April, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1537 #

2010 P Cr. L J 1537

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

GHULAM ABBAS and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 2102 of 2005 and Murder Reference No.106 of 2006, decided on 11th May, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Qatl-e-amd---Appreciation of evidence---Sentence reduction in---Plea of self-defence taken by accused having not been supported by record was not acceptable---F.I.R. had been promptly lodged---Eye-witness account was in line with medical evidence---Crime empty secured from the spot had matched with the gun recovered at the instance of accused---"Dattar" recovered at the behest of other accused was found to have been stained with human blood---Recovery evidence, thus had further corroborated ocular testimony---Prosecution had established that only the accused and none else had caused injuries on the person of the deceased---Conviction of accused was, therefore, maintained---Prosecution had failed to prove motive part of the story and the deceased party had itself gone to the house of accused to avenge the insult of the earlier incident, where an altercation took place culminating into a sudden fight without any premeditation on the part of accused---Sentence of death awarded to condemned accused was reduced to imprisonment for life in circumstances---Sentence of imprisonment for life of other accused was maintained---Appeal was disposed of accordingly.

Mukhtar Ahmad v. The State PLD 2002 SC 792; Toti Khan v. The State 2002 SCMR 1607; Muhammad Akbar v. The State and another 2004 PCr.LJ 514; Mst. Nazakat v. Hazrat Jamal and another PLD 2007 SC 453; Ghulam Abbas v. The State 2008 SCMR 1352 and Abdul Kareem v. The State 2010 SCMR 589 ref.

Noor Muhammad v. The State and another 2010 SCMR 97 and Muhammad Ibrar v. The State 2006 SCMR 1175 rel.

Ijaz Ahmad Bajwa for Appellant No. 1.

Iftikhar Ullah Malik for Appellant No.2.

M.M. Alam Chaudhry, Additional Prosecutor-General Punjab for the State.

Asif Javed Qureshi assisted by Mian Muhammad Arif Sukhera for the Complainant.

Dates of hearing: 10th and 11th May, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1551 #

2010 P Cr. L J 1551

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

NASIR ALI through Attorney---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1917 and Murder Reference No. 898 of 2004, heard on 4th May, 2010.

Penal Code (XLV of 1860)---

----S. 302---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Eye-witnesses were neither resident of the place of occurrence nor had they any business to do at that place on the day of occurrence so they were chance witnesses---Complainant and the eye-witness could not assign any specific reason to their visit to the Village/Basti of occurrence which was out of the way to the town they had allegedly gone to for a piece of work---Complainant and the eye-witness made contradictory statements regarding means of transport they used for approaching the bus-stand; complainant stated that they proceeded by bicycle while the other witness testified that they went by a tonga---Complainant and the witness stated that the accused threw both the deceased into the canal after giving churra blows to them in their presence but the fact remained that the occurrence was bound to take considerable time and effort; witnesses could easily overpower the accused who was armed only with a churra but they did nothing to save the lives of the deceased; instead, left for Police Station to report the incident; their conduct in circumstances, belied their presence at the place of occurrence---Most important witness, husband of the deceased lady; who took the complainant and the other eye-witness to the spot, was not produced by the prosecution and was given up without any cogent reason---Adverse presumption thus could be drawn against the prosecution under Art.129(g) of the Qanun-e-Shahadat, 1984---Witnesses who identified the dead bodies of the deceased did not mention the time and place of the recovery of the bodies---Alleged motive for the offence that the accused had designs on the daughters of the deceased lady who used to forbid the accused from visiting her house, was belied by the fact that the deceased lady had only one daughter who was a married living with her husband in a separate house---Recovery of the weapon of offence at the instance of the accused from a place not owned or possessed by the accused was of no avail to the prosecution---Accused though could not give any solid reason for his false implication yet it was duty of the prosecution to prove its case beyond shadow of doubt---Accused was entitled to the benefit of doubt in the event of any doubt in the prosecution's story, not as a matter of grace but as a matter of right---Story of prosecution was not free from doubt---Giving the accused benefit of doubt, appeal was accepted---Conviction and the sentence of the accused was set aside and he was acquitted of the charges--- Death sentence was not confirmed and Murder Reference was answered in the negative.

Muhammad Akram v. The State 2009 SCMR 230 fol.

Mian Sarfraz-ul-Hassan assisted by Syed Tahir Abbas Rizvi for Appellant.

M. M. Alam-Chaudhry, Additional Prosecutor-General Punjab for the State.

Date of hearing: 4th May, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1582 #

2010 P Cr. L J 1582

[Lahore]

Before Sardar Tariq Masood and Sardar Muhammad Shamim Khan, JJ

ALI SHER---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.97 of 2005 and Murder Reference No.6 of 2005, heard on 11th May, 2010.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Two eye-witnesses out of three had been given up by the prosecution as having been won-over---Despite some contradiction and improvement in the statement of the solitary eye-witness examined in the case, he could not be termed as an interested witness and his evidence inspired confidence---Statement of the deceased recorded by Investigating Officer under S. 161, Cr.P.C. prior to his death in an injured condition, could not be termed as a dying declaration without any endorsement of the Doctor theron---Said statement appeared to have been fabricated by the Investigating Officer to strengthen the prosecution case---Recovery of carbine from the accused was inconsequential and of no help to prosecution, as neither any crime empty was recovered from the spot nor the carbine had been sent to Forensic Science Laboratory to determine its working condition---Deceased had breathed his last after about one month of the occurrence and it was septicemia which had caused his death and the fire-arm injuries caused by the accused were not the direct result of his death---Ocular account of the solitary eye-witness, thus, was not corroborated by any independent evidence and while relying upon the same death penalty could not be awarded to accused for safe administration of justice---Motive behind the incident had not been established and what had actually happened prior to the occurrence was shrouded in mystery---Conviction of accused was upheld, but his sentence of death was altered to imprisonment for life in circumstances.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence---Solitary eye-witness---Extreme penalty of death on the statement of a solitary eye-witness is not advisable without any independent corroboration, which is necessary for safe administration of justice.

----Art. 46(1)---Criminal Procedure Code (V of 1898), S. 161---Penal Code (XLV of 1860), S. 302(b)---Qatl-e-amd---Dying declaration---Scope---Statement of deceased recorded by Investigating Officer under S. 161, Cr.P.C. without any endorsement of the Doctor thereon, cannot be termed as a dying declaration.

Prince Sh. Rehan Iftikhar for Appellant.

Rana Kashif Saleem Arfaa, Law Officer for the State.

Date of hearing: 11th May, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1593 #

2010 P Cr. L J 1593

[Lahore]

Before Ijaz Ahmad Chaudhry and Sardar Tariq Masood, JJ.

ALLAF HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.915 of 2003, Criminal Revision No.64 of 2004 and Murder Reference No.42 of 2009, decided on 29th April, 2010.

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

----Ss. 302(b) & 324---Qatl-e-amd and attempt to commit qatl-e-amd---Appreciation of evidence---Accused was not nominated in the F.I.R. and he was subsequently involved in the case by complainant through his supplementary statement---Complainant had made crude improvements in his statement made in the court---Even no description of the person had been given in the F.I.R. who had fired at the deceased---Statements of the injured witness and of the "Wajtakkar" witness had been recorded on the following day after recording the supplementary statement of the complainant---Occurrence had taken place in dark hours of the night---No source of light had been mentioned for identification of accused---Complainant due to previous grudge had involved the accused at a belated stage through supplementary statement---Statements of the deceased recorded in injured condition by Investigating Officer without any certificate of the doctor that the deceased at the relevant time had remained in senses, was just a statement under S. 161, Cr.P.C. and the same could not be termed as dying declaration---Nothing incriminating was recovered from the accused during investigation---Motive being a double edged weapon could be used even for false implication of accused---Prosecution case was replete with doubts and accused was entitled to the benefit of the same as a matter of right---Accused was acquitted in circumstances.

Muhammad Luqman v. The State PLD 1970 SC 10 and Tariq Parvaiz v. The State 1995 SCMR 1345 ref.

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

----Ss. 154 & 161---Penal Code (XLV of 1860), Ss. 302(b) & 324---Qatl-e-amd and attempt to commit qatl-e-amd---Supplementary statement---Value---Any statement or further statement of the first informant recorded by Investigating Officer during investigation would neither be equated with the F.I.R. nor read as a part of the same---Value of the supplementary statement had to be determined in view of the principle enunciated by Superior. Courts.

----Ss. 302(b) of 324---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Principle---Statement recorded by Investigating Officer under S. 161, Cr.P.C. of the deceased in injured condition cannot be termed as a dying declaration without an endorsement of the Doctor thereon.

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

----Ss. 302(b) & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Benefit of doubt, extension of---Principle---Not many, but even a single circumstance creating reasonable doubt in a prudent mind about the guilt of accused is sufficient to make him entitled to the benefit of the same, not as a matter of grace or concession, but as a matter of right.

Muhammad Luqman v. The State PLD 1970 SC 10 and Tariq Parvaiz v. The State 1995 SCMR 1345 ref.

Nadeem Ahmad Tarar for Appellant.

Mian Bashir Ahmad Bhatti, Additional Prosecutor-General for the State.

Date of hearing: 29th April, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1606 #

2010 P Cr. L J 1606

[Lahore]

Before Shahid Hameed Dar, J

EJAZ AHMAD alias JAJI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 581 of 2005, heard on 4th May, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Motive as alleged in the F.I.R. had been proved---Medical evidence had fully corroborated the ocular version---Eye-witnesses had corroborated each other on every material aspect of the case and simply their relationship with the deceased could not disqualify their testimony in the absence of any serious previous enmity between the parties---Incident had occurred in day light---Parties being known to each other mistaken identity of accused was not probable, specially when the accused himself had admitted to have fired at the deceased in his defence---Delay in lodging the F.I.R. stood plausibly explained---Some minor contradictions and improvements made by eye-witnesses had no adverse bearing on their testimony---Belated and unsubstantiated defence plea of accused was an afterthought devoid of any merit, but at the same time it in a way had supported the prosecution version, which otherwise stood proved on its own facts and circumstances---Appeal was dismissed in circumstances.

Ch. Muhammad Rafique Gujjar for Appellant.

Sahibzada M.A. Amin Mian, Additional Prosecutor-General for the State.

Date of hearing: 4th May, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1619 #

2010 P Cr. L J 1619

[Lahore]

Before Manzoor Ahmad Malik, J

ABDUL AZIZ and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 3818/B of 2010, decided on 27th April, 2010.

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

---S.497--Penal Code (XLV of 1860), Ss. 302/109/148/149---Qatl-e-amd, abetment, rioting---Bail, grant of---Allegation against accused was of abetment only---Bail allowed to accused by Trial Court had subsequently been cancelled by the same court on a criminal case having been registered under S. 506, P.P.C. against them and on alleged misuse of concession of bail by them---Trial Court had allowed bail to accused on merits as their case needed further inquiry and the same could not be recalled on mere registration of a criminal case against them, particularly when the accused had also been granted bail in that very case---Commencement of trial was no bar to enlarge the accused on bail, if they were otherwise, entitled to the same---Accused were admitted to bail in circumstances.

Lal Khan v. Ali Khan and another PLD 1976 Kar. 1165 and Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302/109/148/149---Qatl-e-amd, abetment, rioting---Bail, grant of---Principle---Commencement of trial--- Effect--- Bail can be allowed to accused at any stage of the case---Mere commencement of trial is no bar to enlarge the accused on bail, if he is otherwise entitled to the same.

----S. 497(2)---Bail, grant of---Case of further inquiry---When an accused becomes entitled to bail as of right under S. 497(2), Cr. P. C., the same cannot be withheld on the ground of practice; because the latter is relatable to exercise of discretion while the former is relatable to exercise of grant of right.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

Syed Naeem Ashraf for Petitioners.

Ch. Khalid Ikram Khatana for the Complainant.

Ch. Muhammad Zafar Khan, Deputy Prosecutor-General for the State.

Ahmad Khan, S.-I. with record.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1629 #

2010 P Cr. L J 1629

[Lahore]

Before Shahid Hameed Dar, J

RAHAT JAVAID---Petitioner

Versus

DISTRICT POLICE OFFICER, NANKANA SAHIB and 6 others---Respondents

Writ Petition No.18047 of 2009, decided on 7th June, 2010.

Criminal Procedure Code (V of 1898)---

----S. 154---Penal Code (XLV of 1860), Ss. 302/148/149---Constitution of Pakistan (1973), Art. 199---Qatl-e-amd and rioting armed with deadly weapon---Constitutional petition---Registration of F.I.R.---Real brother of the applicant respondent had been killed by the police and according to the F.I.R. his death had occurred due to a police encounter---In a judicial inquiry held by Magistrate it was found that the occurrence was a fake encounter staged by the police and the death of the deceased was an extra judicial killing---Police then rushed into registration of a criminal case using the text of the judicial inquiry as the subject of the F.I.R., and wasted no time in recording the opinion of innocence without associating any aggrieved persons with the investigation and declared all the police officials as innocent---Brother of the deceased had arrogantly and contemptuously been kept at a distance by the police and they never attended to his grievance---Sessions Court, thereafter, on the application of the deceased's brother directed the SHO to register a criminal case against the persons mentioned therein, vide impugned order---Validity---Contention that other F.I.R. on the version of the applicant brother of the deceased could not be recorded was not legal---Version of the applicant had not been cared of by the police so far, rather his efforts to get a criminal case lodged had been obstructed by the respondents police officers--F.I.R. sought to be registered could not be stopped, as prima facie contents of the application had made out a cognizable offence---Another F.I.R. could be registered in circumstances---Station House Officer was, consequently, directed to record the statement of the brother of the deceased under S. 154, Cr.P.C. and proceed further in accordance with law---Constitutional petition was accepted accordingly.

Wajid Ali Durrani and others v. Government of Sindh and others 2001 SCMR 1556; Muhammad Basheer v. The SHO Okara Cantt. and others PLD 2007 SC 539; Mst. Allah Rakhi v. DPO, Gujranwala and 5 others 2009 MLD Lah. 99; Mrs. Ghanwa Bhutto and another v. Government of Sindh and another PLD 1997 Kar. 119; Basheer Ahmad v. Station House Officer and 5 others 2008 MLD Lah. 9; W.P.No. 8560 of 2007 and Muhammad Anwar's case PLD 1999 Lah. 50 ref.

Rana Muhammad Shahid Mehmood for Petitioner.

Inam-ul-Islam Khan for Respondent No. 6.

Aamir Jalil Siddiqui, A.A.-G. and Muhammad Anwar Sail, S.-I. for the Respondents.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1637 #

2010 P Cr. L J 1637

[Lahore]

Before Manzoor Ahmad Malik, J

NASIR MAHMOOD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 10 and Criminal Revision No. 90 of 2007, heard on 13th July, 2010.

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

----S. S(2)---Penal Code (XLV of 1860), S.161---Pakistan Criminal Law (Amendment) Act (XL of 1958), S.10---Gratification other than legal remuneration taken by public servant in respect of an official act, criminal misconduct by public servant---Appreciation of evidence---Burden and mode of proof---Benefit of doubt---Accused, a Halqa Patwari, was alleged to have demanded and received Rs.3000 for the attestation of mutation---Revenue Record showed that the accused did not enter the mutation number quoted/referred by the complainant---Tainted currency notes were recovered from the accused but the raiding party neither saw nor heard what passed between the complainant and the accused---Prosecution was bound to prove that the illegal gratification was demanded and the same was received by the accused--- Mere recovery of tainted currency notes did not establish that the money was demanded and received as Illegal gratification---Prosecution case was not free from doubt and the accused was entitled to benefit of doubt not as matter of grace but as matter of right---Appeal was allowed---Conviction and sentence awarded by the Trial Court was set aside and accused was acquitted of the charges---Accused having been acquitted, criminal revision for enhancement of his sentence- stood dismissed.

Rashid Ahmad v. The State 2001 SCMR 41 and Muhammad Akram v. The State 2009 SCMR 230 fol.

Malik Waheed Anjum for Appellant.

Malik Muhammad Iqbal for the Complainant.

Khawaja Sohail Farooq, Deputy Prosecutor-General for the State.

Date of hearing: 13th July, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1644 #

2010 P Cr. L J 1644

[Lahore]

Before Ch. Iftikhar Hussain, J

FAISAL NAWAZ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.3831; B of 2010, decided on 28th April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 34, 109, 337-F(i), 337-F(iii) & 337-F(v)---Attempt to commit qatl-e-amd; act, done in furtherance of common intention; ghair-jaifah mudihah, mutalahima and hashimah---Bail, grant of---Further Inquiry---Accused, as per F.I.R., fired two pistol shots hitting non-vital parts of the complainant's son---Whether the accused had committed the alleged offence under S.324, P.P.C. would be proved at. trial, his case, therefore, was covered by mischief of subsection (2) of S. 497, Cr.P.C.---Other offences allegedly committed by the accused did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Accused was behind the bars for last five months and was previous non-convict; his trial had commenced---Accused was admitted to bail, in circumstances.

Ch. Ehsan-ul-Haq Natt for Petitioner.

Ch. Abdul Razzaq, D.P.-G. for the State with Muhammad Iqbal, S.-I. with Police Record.

Ch. Asif Mehmood Randahwa for the Complainant.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1648 #

2010 P Cr. L J 1648

[Lahore]

Before Ch. Iftikhar Hussain, J

EHSAN-UL-HAQ---Petitioner

Versus

MUHAMMAD KHAN and another---Respondents

Criminal Miscellaneous No.1781-CB of 2010, decided on 27th April, 2010.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302/429/148/149/109---Qatl-e-amd, mischief by killing cattle etc. rioting, abetment---Application for cancellation of bail, refusal of---Accused, according to F.I.R. was only a party to the criminal conspiracy to do away with the two deceased---Admittedly, accused was not present at the spot at the relevant time and no overt act qua the commission of the alleged offence had been attributed to him---Trial Court in granting pre-arrest bail to accused had not taken a mistaken view of the matter and had correctly appreciated the facts of the case---Involvement of accused in the matter found during police investigation had no material effect in the given situation, which even otherwise was not binding on the court---No strong and exceptional circumstances appeared to warrant cancellation of bail granted to accused by a competent court---Alleged threats made by accused to the complainant party after getting bail could not be established by the complainant---Trial was likely to commence soon and at such stage withdrawal of relief of bail might prejudice the accused in his defence---Petition for cancellation of pre-arrest bail allowed to accused was disallowed in circumstances.

Ghulam Murtaza v. The State 2003 YLR 3255; Muhammad Akram v. Zahid Iqbal and others 2008 SCMR 1715 and Haji Mian Abdul Rafique v. Riaz-ud-Din and another 2008 SCMR 1206 ref.

Raja Fazal-ur-Rehman v. Muhammad Afzal and another 2010 SCMR 179 distinguished.

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

----Ss. 497/498--- Grant, denial or cancellation of bail--- Police opinion---While deciding the question of bail opinion of the police is not binding upon the court.

----S.497(5)---Penal Code (XLV of 1860), Ss. 302/148/149/109---Qatl-e-amd, rioting, abetment---Cancellation of bail---Principle---Bail allowed to an accused cannot be cancelled, unless strong and exceptional circumstances exist to warrant cancellation.

Ateeq-ur-Rehman for Petitioner.

Muhammad Khan and Tayyab Ramzan Chaudhary for Respondent No.1.

Ch. Abdul Razzaq, D.P.-G. Qaisar Abbas A.S.-I. with record for Respondent No.2.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1656 #

2010 P Cr. L J 1656

[Lahore]

Before Khawaja Muhammad Sharif C. J. and Waqar Hassan Mir, J

IJAZ AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1046 of 2002 and Criminal Revision No.620 of 2002, heard on 29th March 2010.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Accused though had admitted commission of offence, but had taken plea of self-defence---Two co-accused who were real brothers of accused and to whom injuries were attributed, were acquitted by the Trial Court---Trial Court had disbelieved the prosecution story---When prosecution story was disbelieved, the court had to rely upon the statement of accused in totality---Deceased was not a masoom-ud-dam and had criminal record to his credit---Accused was arrested 26 days after the occurrence and his sentence was suspended by High Court---Accused faced the agony of the trial and also pendency of appeal before High Court---When the occurrence had taken place in the shop of accused, case of accused was covered by S.302(c), P.P.C. and not S.302(b), P.P.C.---Conviction and sentence which accused had already undergone, would be sufficient to meet the ends of justice---Conviction of accused was altered from S.302(b), P.P.C. to S.302(c), P.P.C. and sentenced accused to the period which he had already undergone.

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

Mian Pervaz Hussain for Applicant.

Syed Faisal Raza Bokhari, Deputy Prosecutor-General for Respondent.

Date of hearing: 29th March, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1663 #

2010 P Cr. L J 1663

[Lahore]

Before Sagheer Ahmed Qadri and Rauf Ahmed Sheikh JJ

WAHEED GUL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 147 of 2008, heard on 15th July, 2010.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Accused was driving the car from the, secret cavities of which sixty kilograms of "charas" was recovered and he would be presumed to be in possession of the said narcotic---Question of ownership of the car in this context was irrelevant---Prosecution had discharged its initial burden by proving the possession of "charas" of accused, who had failed to rebut the same as required under section 29 of the Control of Narcotic Substances Act, 1997---Conviction and sentence of accused were upheld in circumstances.

Nadir Khan and others v. The State 1988 SCMR 1899 ref.

Malik Abdul Qayyum, Defence Counsel for Appellant.

Ch. Mubarak Hussain, Deputy Prosecutor-General for the State.

Date of hearing: 15th July, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1668 #

2010 P Cr. L J 1668

[Lahore]

Before Rauf Ahmad Sheikh and Hassan Raza Pasha, J

ARSHAD MAHMOOD---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.86, 71 of 2006 and Murder Reference No. 192 of 2006, heard on 19th May, 2010.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Prosecution case rested merely on circumstantial evidence---Prosecution witness deposing about the fact of having seen the deceased alive for the last time with the accused had neither disclosed the said fact immediately after the discovery of the dead body of the deceased, nor did she reveal this fact to anybody during her visits to the house of the complainant---Said witness appeared to have stated so in order to save her own son and her evidence did not inspire confidence---Evidence regarding the extra-judicial confession made by accused had been furnished by close relatives of the complainant and the same had material contradiction---Evidence quo extra judicial confession being always a weak type of evidence had to be very carefully scrutinized and believed only if found trustworthy and reliable, which was not of such calibre in the present case---Record did not indicate that accused .had led to the place where the dead body of the deceased was lying and, thus, he had no exclusive knowledge of the place of recovery---Illicit relationship of both the accused inter se was not established by the record and they could not be inferred to have killed the deceased on that account---Joint recovery of the wire used in the offence at the instance of accused was not recognized by law---Accused were acquitted in circumstances.

Tahir Javed v. The State 2009 SCMR 166; Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231; Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 and Nizam-ud-Din v. Riaz and another 2010 SCMR 457 ref.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 164---Qatl-e-amd---Appreciation of evidence-Extrajudicial confession---Extrajudicial confession is always considered as a weak piece of evidence and it should be scrutinized very carefully---Extra-judicial confession should not be believed unless it is adduced by trustworthy and reliable witnesses.

Raja Ghaneem Aabir Khan for Appellant (in Criminal Appeal No.86 of 2006).

Ch. Irfan Ahmad for Appellant (in Criminal Appeal No.71 of 2006).

Muhammad Ilyas Siddiqi for the Complainant.

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

Date of hearing: 19th May, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1677 #

2010 P Cr. L J 1677

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD HASSAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 2969-B of 2010, decided on 19th April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/148/149---Qatl-e-amd and attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---Accused was named in the F.I.R. with role of firing with .12 bore gun at deceased hitting on upper right side of his ear---Cross-version case and it was yet to be seen as to which party had in fact initiated the aggression; or that who was the victim---Existence of cross-versions required further inquiry into guilt of accused---Fact remained that accused in the initial investigation, had been found to be not involved in the matter---Investigation had shown that there was excessive firing from the accused side, it could not be determined as to whose fire had hit the deceased resulting into his death---Ipse dixit of the Police though was not binding upon the court, but that was a relevant circumstances to be taken into consideration while deciding the question of bail---Case of accused fell within the purview of subsection (2) of S.497, Cr.P.C.---Accused was in jail for the last about three months---When case of accused would become one of further inquiry into his guilt, he would be entitled to bail as of right and not mere grace and he could not be detained unncessarily---Case for enlargement of accused on bail having been made out, he was admitted to bail, in circumstances.

Maqbool Ahmed Bhatti for Petitioner.

Ch. Abdur Razzaq, D.P.-G. with Muhammad Rashid Baig, S.-I. with police record for the State.

Muhammad Ibrahim, Respondent No. 2 with Rana Muhammad Saeed Akhtar for the Complainant.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1681 #

2010 P Cr. L J 1681

[Lahore]

Before Waqar Hassan Mir, J

NADEEM---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous No.356-M of 2010, heard on 9th June, 2010.

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

----Ss. 397 & 561-A---Jail petition---Petitioner was confined in jail for the last 8 years and the period which had been undergone by him during the period of trial, had not been included in his sentences, despite the orders of the superior courts regarding the inclusion of the same---Accused had been convicted in eight different cases---Trial Court did not make any order as to concurrent running of the sentences---Petitioner prayed for his sentences to be ordered to run concurrently---Validity---Held, if, for any reason, or due to some inadvertent omission the order within the meaning of S.397, Cr.P.C. was not passed by the Trial Court, the same task could be undertaken by the High Court while exercising its powers under S.561-A, Cr.P.C.---Such exercise of power by High Court would not amount to review or modify the judgment which would remain intact regarding the conviction and sentence as the matter of sentence to run was ancillary to the question of punishment---All the sentences awarded to the petitioner were ordered to run concurrently with direction to the Superintendent Jail for doing the needful.

Ali Akbar Shah v. The State PLD 2004 Kar. 589 rel.

Bashir v. State PLD 1991 SC 1145 fol.

Mian Gulzar Muhammad v. Crown PLD 1950 Lah. 497; Zakir Ali v. The State PLD 1977 Kar. 833; Muhammad Khan's case in PLD 1986 Lah. 294; Muhammad Yaqoob Tahir v. Superintendent, District Jail, Rawalpindi PLD 1979 (Lah.) 46 and Ahmed Sultan and another v. The State 2007 SCMR 1424 ref.

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

----Ss. 561-A & 397---Application and scope of S.561-A, Cr.P.C. vis-a-vis order within meaning of S.397, Cr.P.C.---Held, if no order within the meaning of S.397, Cr.P.C. had been made as to the concurrent running of sentences by the Trial Court for any reason, High Court could undertake the same task under S.561-A, Cr.P.C.

Applicant through Jail.

Shahid Mehmood Abbas, A.A.-G. and Nadeem Akhtar Bahtti, A.A.-G. for the State.

Date of hearing: 9th June, 2010.

2010 P Cr. L J 1709

[Lahore]

Before Khawaja Muhammad Sharif, C.J. and Kh. Imtiaz Ahmed, J

MUHAMMAD RAMZAN---Appellant.

Versus

THE STATE---Respondent

Criminal Appeal No.404, Criminal Revision 166 and Murder Reference No. 759 of 2004, heard on 5th April, 2010.

Penal Code (XLV of 1860)---

----S.302(b)--- Qatl-e-amd--- Appreciation of evidence--- Benefit of doubt---Postmortem reports of both the deceased had been interpolated in the columns of "death" and "examination of body" as regards the time given by the Doctor---Interval between the death and postmortem as given in both the reports did not commensurate with the time of occurrence as claimed by the prosecution; similar was the position of the inquest reports of both the deceased, relevant columns Nos.22 and 23 whereof had been left blank and the timings mentioned therein by the Investigating Officer had militated against the time of occurrence as well as the injuries received by the female deceased according to the F.LR.---Medical evidence also did not support the injury allegedly sustained by the complainant during the occurrence, rather had created a doubt about self infliction of the same---Positive report of Forensic Science Laboratory could not be relied upon, as the crime empties and the rifle recovered in the case had remained with the Police Moharrir for a sufficiently long time before sending the same to the Fire-arm Expert---Prosecution had failed to prove its case through unimpeachable evidence---Defence version was much more plausible than the prosecution version---Accused was acquitted on benefit of doubt in circumstances.

2005 Cr1.L.J.1864 (DB) and 2001 SCMR 241 ref.

Mukhtar Ahmad Gondal for Appellant.

Sardar Muhammad Ishaq Khan for the Complainant.

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

Date of hearing: 5th April, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1717 #

2010 P Cr. L J 1717

[Lahore]

Before Khawaja Muhammad Sharif, C.J.

ABDUL RAZZAQ alias KARIM KHAN---Petitioner

Versus

MUHAMMAD AKRAM CHAUDHRY, ADDITIONAL SESSIONS JUDGE, LAHORE and others---Respondents

Criminal Revision No. 650 of 2010, decided on 9th June, 2010.

Criminal Procedure Code (V of 1898)---

----S.345(2)---Penal Code (XLV of 1860), S. 302(c)---Qatl-e-amd---compromise, acceptance of--- Occurrence had taken place on 15-10-2004, while the amendment in S. 302(c), P.P.C. had come on the statute book on 10-1-2005--- Finding of Session Court that it was a case of "Karokari" and "Ghairat" was totally wrong---Even High Court had held that the accused had acted under grave and sudden provocation---Impugned order passed by Sessions Court refusing to accept compromise between the parties, was consequently set aside and the compromise arrived at between the legal heirs of both the deceased and the accused was accepted---Revision petition was allowed accordingly.

Mian Muzaffar Ahmad for Petitioner.

Rana Bakhtiar ali, D.P.G. for the Respondents.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1728 #

2010 P Cr. L J 1728

[Lahore]

Before Ch. Iftikhar Hussain and Muhammad Anwaarul Haq, JJ

IMTIAZ---Appellant/Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1 of 2010 in Criminal Appeal No. 2178 of 2009, decided on 6th May, 2010.

Criminal Procedure Code (V of 1898)---

---S. 426---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotics---Suspension of sentence---Application for---Applicant/accused had prayed for suspension of his sentence---Trial Court in impugned judgment had observed that extreme penalty of death was not awarded to accused, because, he was neither owner nor driver of the truck, but just a helper of the truck; that co-accused had not been arrested by the Police; and that accused was very poor person and not in a position to purchase such a huge quantity of Charas himself---Such observations of the Trial Court had rendered the case of accused to be the one requiring reappraisal of the evidence on record to see that, if he, in such circumstances, could be convicted under the said offence or that his conviction and sentence could be maintained---Accused was arrested on 14-5-2007 and since then he was continuously suffering detention---No likelihood was in the sight that an early hearing of his appeal would be possible---Sentence of accused was suspended, in circumstances.

Mian Pervaiz Hussain for Appellant/Applicant.

Chaudhry Jamshaid Hussain, Deputy Prosecutor-General for the State.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1730 #

2010 P Cr. L J 1730

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

NIZAM-UD-DIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1680 of 2006 and Murder Reference No. 35 of 2004, heard on s24th February, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Accused was not named in the F.I.R, but was involved in the case by the complainant in his supplementary statement made after nine days of the occurrence, only on the basis of suspicion---Witness of "wajtakkar" was not resident of the area of the occurrence and he had failed to plausibly explain his presence at the spot---Said witness had kept mum for 15 days and had changed his statement in cross-examination---Alleged eye-witness had made dishonest improvements in his statement before the court to strengthen the prosecution case---Witness of extra judicial confession had not disclosed his social status or influence over the family of the deceased--Even otherwise, joint extrajudicial confession was not admissible in evidence and moreover it was not corroborated by any other independent evidence---Recovery of pistol from the accused and crime empty from the spot, was of no avail to prosecution in the presence of negative report of the Forensic Science Laboratory---Prosecution case being replete with doubts, benefit of the same had to go to the accused not as a matter of grace but of right---Accused was acquitted in circumstances.

Muhammad Saleem v. The State 2010 SCMR 374; Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231; Ahmad v. The Crown PLD 1951 FC 103-107; Muhammad Akram v. The State 2009 SCMR 230 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Witness---Statement of the witness---Corroboration---Principles---Statement of a witness must be in consonance with the probabilities fitting in the circumstances of the case and inspiring-confidence in the mind of a reasonable and prudent person---In the, presence of these elements the statement of a worst enemy of the accused can be accepted and relied upon without corroboration, but in the absence of said elements the statement of a pious man can be rejected without second thought.

----S. 164---Penal Code (XLV of 1860), S.302(b)---Qatl-e-amd---Appreciation of evidence-Extra-judicial confession---Corroboration---Extrajudicial confession being not a direct evidence, necessarily needs corroboration in material particulars before making it a basis for conviction.

Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231 ref.

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

----S. 164---Penal Code (XLV of 1860), S. 302(b)---Qatl-e-amd---Appreciation of evidence---Joint extra judicial confession---Utility---Extrajudicial confession made jointly by accused cannot be used against either of them.

Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231 ref.

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

----S. 302(b)-- Qatl-e-amd--- Appreciation of evidence--- Extrajudicial confession---Requisites to be kept in mind before relying on extrajudicial confession--Padding and concoction like extrajudicial confession are made by the Investigating Officer after his failure to properly investigate the case--Judicial mind, therefore, relying upon such a weak and easily procurable evidence, must ask a few questions like, why the accused should at all confess, what is the time lag between the occurrence and the confession, whether the accused had been fully trapped during investigation before making the confession, what is the nature and gravity of the offence involved, what is the relationship or friendship of witnesses with the maker of confession and, above all, what is the position or authority held by the witnesses.

Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt, extension of---Principles---Benefit of doubt arising in the case must go to the accused not as a matter of grace, but as a matter of right.

Muhammad Akram v. The State 2009 SCMR 230 ref.

Hafiz Khalil Ahmad and Gohar Razzaq Awan for Appellant.

M.M. Alam Chaudhry, Additional Prosecutor-General Punjab for the State.

Date of hearing: 24th February, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1744 #

2010 P Cr. L J 1744

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD MUSHTAQ ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2561-B of 2009, decided on 28th September, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302, 364, 109, 148 & 149---Qatl-e-amd, kidnapping or abduction--Bail, grant of--Case under S.364, P.P.C. was got registered on the suspicion of abduction of alleged abductee by accused party on the complaint of mother of the abductee--After long passage of time, accused were implicated on the basis of extrajudicial confession made by co-accused and Ss.302, 148 & 149, P.P.C. were added---Validity---Statement of one co-accused could not be used against other co-accused-Extra-judicial confession was also considered a weak type of evidence---Dead body of deceased was not recovered---Prosecution witness before whom accused allegedly made extra judicial confession, did not figure in the F.I.R.---Remotest chances of conviction of accused on the basis of extra judicial confession---Concession of bail, in such like cases, could not be withheld as a punishment--Submission of challan under S.173, Cr.P.C. before the Trial Court was not obstacle in granting the bail, if case for grant of bail was made out otherwise--Case of bail was made out under the principle of consistency---Co-accused having been allowed bail and case of accused was identical with co-accused, accused was admitted to bail, in circumstances.

2007 SCMR 1178 and PLD 1989 SC 585 rel.

Sardar Mehboob for Petitioner.

Haji Muhammad Aslam Malik for the Complainant.

Shahid Iqbal Malik, D.D.P.P. with Azad Hussain, S.-I. with record.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1763 #

2010 P Cr. L J 1763

[Lahore]

Before Sh. Najam-ul-Hasan and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD ASIF---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 1971, 2070, Criminal Revision No.1047 of 2004 and Murder Reference No. 51 of 2005, heard on 26th May, 2010.

Penal Code (XLV of 1860)---

----Ss.302(b) & 324---Qatl-e-amd and attempt to commit qatl-e-amd---Propositions of law disregarded by Trial Court in conducting trial in challan case and private complaint---Simple cases of cross-version had been made complicated and intermingled with each other by Trial Court ignoring the basic scheme of law as enshrined in Chapter XXII of Criminal Procedure Code, 1898, and it had become very difficult to segregate both cases in ordinary circumstances---Trial Court was bound to record the statements of prosecution witnesses duly mentioned in the list of the report prepared under S. 173, Cr. P. C. in the challan case sent by Investigating Officer---Widow of the deceased who was accused in challan case being dissatisfied with the findings of the' Investigating Officer qua her counter version of the occurrence, had filed a complaint about the murder of her husband---Trial Court had recorded the statements of four prosecution witnesses in the complaint case besides recording the statements of three police officials as court witnesses---Statements of the said three court witnesses had been placed on the file of the challan case as well without having seen the original record---Mode of summoning the court witnesses during the course of trial in both the matters was questionable---Record did not reveal if the complainant had moved any application to summon the aforesaid three police officials as court witnesses---Trial Court without recording the statements of the accused persons nominated in the complaint had concluded the trial and disposed of the matter through a consolidated judgment---Case was consequently remanded by High Court to Trial Court with the direction to record the statements of remaining prosecution witnesses of the challan case and conclude the trial afresh strictly in accordance with law---Trial Court was further directed to record the statements of remaining witnesses in the complaint case and the Investigating Officers if opted by the complainant or on her moving an application for summoning them as court witnesses---Both the matters were directed to be decided simultaneously to avoid inconvenience to either of the parties for safe administration of criminal justice.?

Najeeb Faisal Chaudhry for Appellant (in Criminal Appeal No.1971 of 2004).

Muhammad Aslam Bajwa for Appellant (in Criminal Appeal No.2070 of 2004).

Rana Javed Anwar Khan for Appellant (in Criminal Revision No. 1047 of 2004).

Muhammad Arshad Bhatti for the Complainant.

Qazi Zafar Iqbal, Additional Prosecutor-General for the State.

Date of hearing: 26th May, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1775 #

2010 P Cr. L J 1775

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD SHAUKAT and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 4016/B of 2009, decided on 23rd October, 2009.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S. 376/511/452/354/109---Attempt to commit rape---Pre-arrest bail, grant of---Case was got registered by the complainant after an unexplained delay of two and a half months, which had given rise to suspicion and mala fides on the part of the complainant as well as on the police---Benefit of doubt had to be given to accused even at bail stage---Allegation against accused was only to the extent of making an attempt to commit rape with the complainant---No rape was actually committed---Pistol yet to be recovered from the accused was not used in the occurrence and nobody was injured---Recovery of pistol, therefore, was meaningless---Ad interim pre-arrest bail granted to accused was confirmed in circumstances.

Shakeel Ahmad Chaudhry for Petitioner.

Sardar Abdul Qayyum for the Complainant.

Shahid Iqbal Malik, D.D.P.P. with Muhammad Saleem A.S.-I. with record.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1782 #

2010 P Cr. L J 1782

[Lahore]

Before Hafiz Abdul Rehman Ansari, J

MUHAMMAD ILYAS---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 3409-B of 2009, decided on 29th September, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.365-B & 376---Kidnapping and rape---Bail, grant of---Further inquiry---Name of accused did not figure in the F.I.R., but he was later on implicated in the F.I.R. through supplementary statement recorded after registration of F.I. R. which was belated---False implication of accused could not be ruled out---Accused was implicated being servant of main accused against whom allegation of commission of zina was levelled who was not accused before the court---Challan of the case had been submitted and accused was no more required for any investigation or recovery---Alleged abductee had reached her home---Keeping accused behind the bars as punishment would not fulfil any useful purpose---No role of accused for commission of the offence was mentioned in F.I.R.---Such being a case of further inquiry, accused was admitted to bail in circumstances.

Raja Khalid Asghar for Petitioner.

Shahid Iqbal, Deputy District Public Prosecutor with Muhammad Iqbal, S.-I. with record.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1799 #

2010 P Cr. L J 1799

[Lahore]

Before Syed Zulfiqar Ali Bokhari, J

MUHAMMAD SHAFI---Petitioner

Versus

MUNIR AHMED and another---Respondents

Criminal Miscellaneous No.506-M of 2009, decided on 27th May, 2009.

Penal Code (XLV of 1860)---

----Ss. 337-A(iii)/337-F(v)/337-L(ii)/34---Criminal Procedure Code (V of 1898), S. 561-A---Hurt "Shajjah", Ghayr-jaifah" and other hurt---Quashing of order---Magistrate had allowed the injury sustained by the complainant on his nose to be verified by Medical Board---Sessions Court set aside the said order of Magistrate vide impugned order in revision---Aforesaid order of Magistrate being an administrative order could not be challenged before Sessions Court through a revision petition, which was not maintainable---Sessions Court while allowing the revision petition had acted without lawful authority---Even otherwise, complainant could not take exception against the order of re-examining of the medical documents regarding injuries sustained by him through Medical Board, if there was no allegation of mala fides against the accused petitioner---Impugned order was consequently set aside and the petition was accepted accordingly.

Tariq Zulfiqar Ahmad Chaudhry for Petitioner.

Ch. Khalid Mahmood Arain for Respondent No.1.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1809 #

2010 P Cr. L J 1809

[Lahore]

Before Waqar Hassan Mir, J

MAKHDOOM JAVED HASHMI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.166 and Criminal Revision No. 70 of 2004, heard on 22nd June, 2010.

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

---Ss. 124-A, 131/109, 505(a), 468, 471, 500 & 469---Criminal Procedure Code (V of 1898), S. 196---Sedition, abetting mutiny, statement conducing to public mischief, forgery for purpose of cheating, using as genuine a forged document, defamation, forgery for purpose of harming reputation---Appreciation of evidence---Section 124-A, P.P.C. was not only non-cognizable, but there was no concept of registration of case thereunder by local police---Cognizance of the case under S. 124-A, P.P.C. could only be taken on the complaint instituted by the Federal Government, which was lacking in the case---Federal Government had not either specifically examined the case or taken a decision to file a complaint regarding the commission of the alleged offence---Despite all this, police had taken cognizance of the offence, investigated the case and filed the challan against the accused in which ultimately he had been convicted and sentenced---Entire proceedings started from the registration of the case, investigation, submission of challan in the court, proceedings before the court and culminating into the impugned conviction, were not sustainable in the eyes of law---Non-compliance of the mandatory provisions of S. 196, Cr.P.C. couched in the negative language, had also vitiated the entire proceedings---In the absence of the order by the Government as required by S. 196, Cr.P.C. Trial Court had no jurisdiction to hold a judicial inquiry and trial---Mandatory provisions of the Code of Criminal Procedure, inter alia, the registration of the case, investigation, recording of statement under S. 164, Cr.P.C. and S. 196, Cr.P.C. had been violated---Rules of procedure were meant to ensure the right to liberty of the accused and due dispensation of justice---Moreover, case against the accused could have not been registered by any one of an incident taken place within the precincts of the National Assembly, except by the speaker who was designated as "Custodian of the House"---No person, whosoever, except the speaker was competent to take notice that case against the accused was registered at the behest of the State Functionaries after nine days of the alleged commission of the offence in the Cafeteria of the National Assembly (Parliament House), which was an integral part of the (Parliament House)---Parliament House was not confined to the Chamber of sitting of the National Assembly, but the precinets of the House were also part and parcel of the House---Complainant in the case was a retired Army Officer and this fact has not only been suppressed at the time of lodging the F.LR., but also during investigation and even before the Trial Court---Another prosecution witness was a serving captain of Pakistan Army posted at GHQ---Trial court had failed to dilate upon the essential elements to prove the criminal charges and the requisite mens rea without which there could be no criminal offences---Basic element of S. 131, P.P.C. of abetting mutiny or attempting to seduce a solider from duty was not disclosed from the prosecution evidence---Accused was acquitted in circumstances.?

Muhammad Khan v. Government of West Pakistan PLD 1960 W.P. Lah. 434; Bashir Ahmad v. The State 2000 PCr.LJ 902; Fazal-i-Raziq v. Riaz Ahmad PLD 1978 Lah. 1082; Gokulchand Dwarkadas v. The King PLD 1948 PC 11; Dost Muhammad v. The State 1976 PCr.LJ 184 and Salman Taseer v. Judge Special Court 1993 SCMR 71 rel.

(b) Interpretation of statutes---

----Penal laws must be interpreted strictly and not so as to deprive a subject of his legal right of liberty.?

----When a particular thing is required to be done in a particular manner, then it should be done in that manner or it should not be done at all.?

Miss Natalya Kamal for Appellant.

Nemo for the Complainant.

Babar Ali, Standing Counsel for the State.

Date of hearing: 22nd June, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1842 #

2010 P Cr. L J 1842

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

MUHAMMAD MUMTAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 70/J of 2005 and Murder Reference No. 845 of 2004, heard on 22nd April, 2010.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Medical evidence was not exactly in line with ocular testimony---Presence of eye-witnesses at the spot at the crucial time was doubtful---Prosecution had failed to prove the motive for the occurrence---Abscondenee of accused was not legally proved---Even otherwise, abscondence of accused was not a proof of his guilt and the same, though might be relevant, could not be used for entailing conviction on capital charge alone, when ocular account was not trustworthy and was not corroborated from any other source---Eye-witnesses had improved their statements in court in order to meet the medical evidence---Recovery of rifle from the accused was inconsequential, as no crime empty had been secured by the Investigating Officer from the place of occurrence---Accused was acquitted on benefit of doubt in circumstances.

Abdul Sattar v. The State 1974 PCr.LJ 208; Qudratullah v. Maisam and another 2005 PCr.LJ 1667; Muhammad Farooq and another v. The State 2006 SCMR 1707; Shahbaz Khan Jakhrani v. Lal Beg Jakhrani and others 1984 SCMR 42 and Muhammad Akram v. The State 2009 SCMR 230 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Abscondenee---Principle---Mere abscondence is not a proof of guilt of an accused---Absondence may be a relevant fact, but it cannot be used for entailing conviction on capital charge in the absence of trustworthy ocular evidence.

Abdul Sattar v. The State 1974 PCrLJ 208 and Qudratullah v. Maisam and another 2005 PCrLJ 1667 ref.

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Ahscondence---Corroborative value---Abseondence of accused has never been considered to be a corroborative piece of evidence.

Muhammad Farooq and another v. The State 2006 SCMR 1707 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt, extension of---Principles---In a criminal case prosecution is duty bound to prove its case beyond any shadow of doubt, and if there is any doubt, the benefit thereof shall be given to the accused as a matter of right and not as a matter of grace.

Muhammad Akram v. the State 2009 SCMR 230 ref.

Rai Muhammad Zafar Bhatti for Appellant.

Malik Abdul Salam, Deputy Prosecutor-General, Punjab for the State.

Date of hearing: 22nd April, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1866 #

2010 P Cr. L J 1866

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD NAWAZ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 6290-B of 2010, decided on 29th June, 2010.

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

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, grant of---Two cheques valuing Rs. 250,000 each given by the accused to complainant had been dishonoured by the Bank on presentation---Accused was behind the bars for more than one month---Investigation was complete and accused was no more required for the same---Bail could not be withheld as punishment in advance---Offence did not fall within the prohibition contained in S. 497(1), Cr.P.C.---Grant of bail in such cases was a rule and refusal an exception, which was not available to refuse bail to accused-Accused was not a previous convict---Bail was allowed to accused in circumstances.

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

Muhammad Ayyub v. The State 2007 YLR 3095; Saman Imtiaz v. The State 2009 PCr.LJ 805 and Shameel Ahmad v. The State 2009 SCMR 174 distinguished.

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

----S. 497---Bail in cases not falling within the prohibitory clause of S.497, Cr.P.C.---Principle---Grant of bail in cases which are not hit by the prohibition contained in S. 497(1), Cr.P.C. is a rule and refusal of bail is an exception.

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

----Applicability---Scope---Each criminal case is to be adjudged in the background of its own facts and circumstances, as the facts of two criminal cases seldom coincide.

Muhammad Chand Khan for Petitioner.

Ch. Abdul Razzaq, Deputy Prosecutor-General with Muhammad Aslam, A.S.-I. with Police Record for Respondent.

Azeem Sarwar for the Complainant.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1871 #

2010 P Cr. L J 1871

[Lahore]

Before Manzoor Ahmed Malik, J

Sh. UMAR FAROOQ---Appellant

Versus

MEHFOOZ ELAHI---Respondent

Criminal Appeal No. 123 of 2010, decided on 14th July, 2010.

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

----S. 420/467/468/471--- Criminal Procedure Code (V of 1898), S.417---Cheating, forgery of valuable properly etc., forgery for cheating and using as genuine a forged document---Appeal against acquittal---Accused had allegedly prepared a forged power of attorney and deprived the complainant party of their valuable property---Trial Court had given valid and convincing reasons for acquittal of accused---Judgment of acquittal could only be interfered if the reasons given for acquitting the accused by the court were arbitrary, capricious, fanciful or non-existent---Nothing in the case could be deemed to be arbitrary, capricious, fanciful or against the record to warrant interference in the judgment of acquittal---No grave miscarriage of justice had been caused due to acquittal of accused---No misreading or non-reading of prosecution evidence had been made by the Trial Court---Appeal against acquittal was dismissed in limine in circumstances.

Iftikhar Hussain and others v. The State 2004 SCMR 1185; Haji Amanullah v. Munir Ahmad and others 2010 SCMR 222; Jahangir v. Amimullah and others 2010 SCMR 491 and Bashir Ahmad v. Fida Hussain and 3 others 2010 SCMR 495 ref.

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

----S. 417---Appeal against acquittal---Scope and extent---Acquittal of accused by a competent court of the charge after a regular trial confers upon him double presumption of innocence---Such acquittal cannot be interfered with until ,and unless found to be arbitrary, fanciful, perverse or against the record and leading to grave miscarriage of justice.

Iftikhar Hussain and other v. The State 2004 SCMR 1185; Haji Amanullah v. Munir Ahmad and other 2010 SCMR 222; Jahangir v. Amimullah and others 2010 SCMR 491 and Bashir Ahmad v. Fida Hussain and 3 others 2010 SCMR 495 ref.

Arif Mehmood for Appellant.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1881 #

2010 P Cr. L J 1881

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD IQBAL LALI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 7297-B of 2010, decided on 16th July, 2010.

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

----S. 497(2)---Penal Code (XLV of 1860), S. 496-A & 376---Enticing or taking away or detaining with criminal intent a woman and rape--Bail, grant of---Escape of the alleged victim from the palatial residence of the accused did not appear to be more than a gossip---Medical evidence did not support the prosecution story---Vaginal swabs of the victim were not found stained with semen according to the report of Chemical Examiner---Accused had been finally held innocent after extensive investigation and the case had been recommended for cancellation---Opinion of Investigating Officer though did not bind the court in any manner, yet it could peep into its persuasiveness and vitality for the purpose of grant or refusal of bail tentatively to the accused---Mere involvement of accused in some other criminal cases without any conviction, could not render him as a desperate or hardened criminal---False implication of accused in the case due to previous enmity and litigation between the parties, could not be ruled out---Reasonable grounds existed to believe that case of accused was open to further inquiry into his guilt within the meaning of S.497(2), Cr.P.C.-Accused was admitted to bail in circumstances.

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

----S. 497---Bail, grant or refusal of---Police opinion---Effect---Police finding although does not bind the court in any manner, yet the Courts can peep into its persuasiveness and vitality tentatively for the purpose of grant or refusal of bail to an accused.

Mian Muhammad Iqbal for Petitioner.

Seerat Hussain Naqvi, Ch. Noor Muhammad Jaspal, Khurram Khan, Deputy Prosecutor-General and Muhammad Mehdi, A.S.-I. for the State.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1889 #

2010 P Cr. L J 1889

[Lahore]

Before Hassan Raza Pasha, J

ABDUR RASHID---Petitioner

Versus

ASAD ABBAS and 2 others---Respondents

Criminal Miscellaneous No. 821/BC of 2010, decided on 15th July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.454 & 380---Lurking house-trespass or house-breaking in order to commit offence punishable with imprisonment and theft in dwelling house---Petition for cancellation of bail---Accused were involved in the case only on the detection of the sniffer dog---Detection by sniffer dogs created only a ground for further investigation to find out the actual culprit---Investigating Officer should have collected more evidence for trial but no substantive, corroborative or circumstantial evidence was collected by the Investigating Officer---No local resident was associated at the time of detection by sniffer dog---Complainant tried to create last seen evidence belatedly by introducing witnesses after confirmation of pre-arrest bail of the accused---Had these witnesses any knowledge of the occurrence, they should have appeared before the Investigating Officer soon after the registration of the F.I.R.---Police and the complainant implicated the accused with mala fide---Additional District Judge assigned valid reasons for exercise of discretion---Once a competent court had granted bail in exercise of its discretion, very strong and exceptional grounds were required for its cancellation---Petition for cancellation of bail was therefore, dismissed.

PLD 1995 SC 34; 1995 SCMR 1249; PLD 1996 SC 241 and 2002 SCMR 1304 fol.

Ch. Mehmood Akhtar Khan for Petitioner.

Tanveer Mehmood Deputy Prosecutor-General with Sajjad Ahmad A.S.-I.

Malik Nadeem Iqbal for Respondents Nos. 1 and 2.

2010 P Cr. L J 1926

[Lahore]

Before Manzoor Ahmad Malik, J

MUHAMMAD ARIF---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 6796-B, 2010, decided on 29th July, 2010.

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

----S.497(2)---Penal Code (XLV of 1860), Ss.324/452/148/149---Attempt to commit qatl-e-amd; house-trespass after preparation for hurt, assault or wrongful restraint, rioting armed with deadly weapon---Bail, grant of---Accused, according to F.I.R., had fired with his gun on the calf of left leg of the brother of the complainant and he did not repeat the fire shot---Charge had been framed in the case against the accused, but no evidence had been recorded so far---Prosecution witnesses had not appeared before Trial Court despite issuance of warrants for summoning them on many dates of hearing---Case of accused, thus, was one of further inquiry within the ambit of S. 497(2), Cr. P. C. ---Mere commencement of trial was no ground for refusal of bail, if case of accused otherwise needed further probe into his guilt---Accused was allowed bail in circumstances.

Muhammad Umar v. The State and another PLD 2004 SC 477 and Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

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

----S.497---Bail, grant of-Commencement of trial---Effect---Commencement of trial in the case is no ground for refusal of bail, if case of accused otherwise requires further inquiry within the ambit of subsection (2) of S. 497, Cr. P. C.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

Malik Muhammad Imtiaz Mahal for Petitioner.

Ch. Muhammad Zafar Khan, Deputy Prosecutor-General for the State.

Husnain, A.S.-I. with record.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1935 #

2010 P Cr. L J 1935

[Lahore]

Before Hassan Raza Pasha, J

Syed SHAJJAR ABBAS SHAH---Petitioner

Versus

THE STATE and others---Respondents

Writ Petition No. 2308 of 2010, heard on 16th July, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Removal of bar fetters---Petitioner was involved in several criminal cases---Jail authorities stated him to be dangerous, desperate and violent old man of 75---Petitioner/prisoner had been put under bar fetters by the order of Sessions Judge---Petitioner contended that he had never tried to escape and that imposition of the bar fetters was against his fundamental rights---Validity---Under the law, Sessions Judge could permit imposition of bar fetters only after proper scrutiny because unnecessary use of bar fetters was an obstruction in the liberty of a prisoner---Sessions Judge, under High Court Rules and Orders, was required to visit jail in his jurisdiction at least once a month and might review his order imposing bar fetters on prisoner---Impugned order was set aside and Superintendent Jail was directed to remove the bar fetters imposed upon the petitioner---Petition was accepted.

Human Right Case No. 49-L of 2006 ref.

Raja Asif Mehmood for Petitioner.

Abdul Wahid Babar, Additional Advocate-General with Khalid Bashir Deputy Superintendent and Muhammad Mujtaba, Assistant Superintendent for the State.

Date of hearing: 16th July, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1942 #

2010 P Cr. L J 1942

[Lahore]

Before Sh. Najam-ul-Hasan and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD ASIM alias BASHARAT ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1541, Criminal Revision No. 881 and Murder Reference No. 860 of 2004, heard on 28th April, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Delay of four hours in lodging the F.I.R. was not explained---Eye-witnesses were interrelated---Prosecution story was improbable---Ocular account regarding taking of food by the deceased had been belied by the post-mortem report---Pistol in possession of accused could not be detected by the deceased and other family members though they had remained together front morning till night in the month of June---Motive as alleged by prosecution was not supported by any independent evidence---Prosecution had opted to bring on record another motive at the trial, which was not mentioned in the F.I.R.---No source of light had been mentioned in the crime report or in the site plan of the place of occurrence, which had taken place at 3 a.m. in the night--Investigation had created dents in prosecution case---Deceased had been assaulted while sleeping on a cot, but blood had been collected from the earth---Cumulative consideration of all the said circumstances had made the prosecution case doubtful---Benefit of doubt was extended to accused in circumstances and he was acquitted accordingly.

Muhammad Inayat Ullah Cheema for Appellant.

Rai Muhammad Zafar Bhatti and Pervaiz Ahmad Cheema for the Complainant.

Qazi Zafar Iqbal, Additional Prosecutor-General for the State.

Date of hearing: 28th April, 2010.

PCrLJ 2010 LAHORE HIGH COURT LAHORE 1952 #

2010 P Cr. L J 1952

[Lahore]

Before Rauf Ahmed Sheikh and Hassan Raza Pasha, JJ

GULFRAZ KHAN ABBASI---Appellant

Versus

WAJID KIANI and 3 others---Respondents

Criminal Appeal No. 91 of 2000, heard on 21st April, 2010.

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

----Ss. 302/201/34---Criminal Procedure Code (V of 1898), S. 417(2)---Qatl-e-amd, causing disappearance of evidence of offence---Appeal against acquittal---Prosecution case was based only on circumstantial evidence---Evidence regarding making of extra judicial confession by the accused before brother-in-law of the deceased had been created just to support the prosecution version and was not believable, because the witness had neither contacted the police in this behalf despite telephone facility, nor mentioned this fact in his affidavit executed subsequently---Two other close relatives of the deceased had deposed about having seen the two deceased alive lastly with the accused persons---Presence of the said witnesses at the relevant place was not established and their testimony was not only discrepant but also suffered from dishonest improvements---Even otherwise, all the persons sitting in a car passing at a reasonable speed from a distance during night, could not be possibly identified---Last seen evidence, therefore, was unnatural and incredible---Recovery of ashes of burnt clothes at the instance of accused from the house was of no avail to prosecution, as the said house was not proved to be owned or occupied by the accused---Said evidence also had material discrepancies---Motive as alleged could not be established---Accused were not connected with the crime in any way---Impugned judgment was not perverse, arbitrary, capricious or speculative---Appeal against acquittal of accused was dismissed in circumstances.

Allah Ditta v. The Crown 1969 SCMR 558; Allah Ditto v. The State 1968 SCMR 378; State v. Khuda Dad and others 2004 SCMR 425; Mst. Moodan v. Saifullah and 2 others 2004 SCMR 923; Riaz Hussain v. Khalid Pervaiz and others 2005 SCMR 1092 and Muhammad Iqbal v. The State 1984 SCMR 930 ref.

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

----S. 302/201/34---Qatl-e-amd, causing disappearance of evidence of offence---Appreciation of evidence---Suggestions made in evidence---Prosecution has to prove its own case and it cannot take benefit of denied suggestions.

Basharat Ullah Khan for Appellant.

Sardar Muhammad Ishaq Khan for the Respondents.

Syed Azmat Ali Bokhari, Standing Counsel.

Date of hearing: 21st April, 2010.

Peshawar High Court

PCrLJ 2010 PESHAWAR HIGH COURT 45 #

2010 P Cr. L J45

[Peshawar]

Before Dost Muhammad Khan, J

GUL WAIZ and others----Petitioners

Versus

ZUHRA BIBI and others----Respondents

Criminal Miscellaneous (Q) Nos.193, 199, 159, 208, 157 of 2008 and 166 of 2007, heard on 9th February, 2009.

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

----Ss. 154 & 155---Registration of criminal case---Police was left with no discretion to refuse registration of a case once the information given, clearly constituted a cognizable offence---Much importance, however, had to be attached to the words "cognizable offence"---Officer incharge of a Police Station, was under statutory obligation to register a case, if the information laid before him clearly constituted a cognizable offence, however, if the information given to police, did not constitute cognizable offence, then the Police was not bound to register the case, but to follow the procedure laid down by the provisions of S.155, Cr.P.C. by recording the report/information in the daily diary register which he had to forward to Illaqa Magistrate for appropriate action because Police had not been authorized by law to investigate into a non-cognizable case.

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

----Ss. 22-A, 154 & 155---Registration of criminal case---Power and procedure of Justice of Peace in registration of case---Scope---Whenever Justice of Peace would seize of a complaint/petition under S.22-A, Cr.P.C., same principle and procedure would be applicable as provided under Ss.154 & 155, Cr.P.C. and Justice of Peace had to apply the same test by applying prudent mind in ascertaining as to whether the facts constituted a cognizable offence or not---If Justice of Peace would come to the conclusion that cognizable offence was clearly constituted from the facts mentioned in the petition before him, only in that case the Justice of Peace could issue directions to the Police to register a case, however, keeping in view the language of all the three clauses of subsection (6) of S.22-A, Cr.P.C., Justice of Peace, while issuing such directions, would refrain from giving directions to the Police to register the case under one or the other section of penal law---Process/exercise would be left to discretion of the Police which would be exercised by the Police in a fair and honest manner---In many cases, the Justices of Peace, conveniently ignored the allotted sphere of their jurisdiction conferred upon them under the three clauses of subsection (6) of S.22-A, Cr.P.C. and indulge in deep interference into the Police inquiry/investigation as well as jurisdiction conferred upon it by different provisions of Cr.P.C.---Such kind of interference would amount to usurp/preempt the statutory powers of the Police which was unwarranted in law.

----SS. 154, 155 & 173---Powers of Police to prevent, investigate, arrest criminals---Under provisions of Chapter XIV of Criminal Procedure Code, 1898 and other related provisions contained in Cr.P.C., the legislature had allotted powers to the Police to prevent, investigate, arrest criminals and effect seizure; and at the conclusion of investigation, correct facts were laid before the court in the charge sheet/challan enabling it to take or refuse to take cognizance of the case on the established facts---Such a phase related to the investigation stage and the courts of law were not supposed to interfere therewith, unless petition/complaint was lodged before it, wherein the Police had disregarded the mandatory statutory law; or it was guilty of misconduct or had committed dishonesty in the course of investigation, however, such allegations must be based on established facts.

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

----Ss. 22-A, 190, 193 & Ch.XLIII---Criminal justice system had been divided into three phases viz. investigation phase followed by inquiry phase and the final stage related to the trial phase---For all the three phases, different authorities like Police, Illaqa Magistrate and Sessions Courts had been constituted and established by the law; and their respective authorities/powers had been clearly defined; and a line of demarcation in between the three phases had been drawn with much clarity---Object and intent of the legislature behind such scheme was that all the three authorities would not interfere into the allotted field of jurisdiction of one another---During investigation phase, the Police had no unbridled powers and the Illaqa Magistrate and in some cases,-the Trial Court/Sessions Courts had been invested with authority to oversee and check that process, but to the extent of well-defined limits---Police, however, had been invested with powers to form its own opinion at the conclusion of investigation; and if on the basis of evidence/material collected by it, case was made out against an accused person, it could file a charge sheet against him while to the contrary, if the evidence was deficient in all respects, then it could file a cancellation report---Final decision to approve or disapprove the Police opinion, however, was to be given by the Illaqa Magistrate or the court competent to take cognizance of the case---Said process could not be interfered with by Justice of Peace nor it could dictate to the Police as to under what provisions of penal law, the charge-sheet against an accused would be filed, because while doing so, it would definitely trespass into the field of the Police exercising statutory authority and the judicial authority of the court or Magistrate who had been conferred upon such powers under Ss.190 & 193 of Criminal Procedure Code, 1898---Under the provisions of Chapter XLIII, Cr.P.C., seizure of property by the Police and its disposal was squarely regulated---Justice of Peace under no circumstances would interfere with such matters and be left to the authorities both executive and judicial constituted thereunder.

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

----Ss. 22-A, 154, 155 & 561-A---Registration of criminal case---Powers of Justice of Peace---Scope---Keeping in view the provisions of Ss.154 & 155, Cr.P.C., whenever the Police would refuse to register a case on the ground that information given did not constitute a cognizable offence or in its opinion, the dispute was of a civil nature, then the report must be recorded by it in the daily diary register and copy thereof would be supplied to the complainant/informer which would be annexed with the petition to be filed under S.22-A, Cr.P.C.---In such a case it would be more appropriate to ask for the written comments of the Police to ascertain the reasons which were made basis for refusal to register a case---In some cases, Justice of Peace while giving directions to the Police for registration of cognizable cases, deep assessment/ appreciation of evidence was made with definite opinion which was unwarranted in law---At such a stage, the Justice of Peace would make tentative assessment of the facts/material placed before him because in such capacity they act as administrative officers, but after all they hold judicial office; and if, after the registration of the case and at the conclusion of investigation, charge sheet was filed before the same court presided over by the Justice of Peace which had rendered such an opinion earlier, then it would be difficult for him to wriggle out from that---Cardinal principle of justice also required that each accused would be deemed to be innocent, unless proved guilty at the trial before a competent court---Justice of Peace, in all circumstances, would not express conclusive opinion on the facts before it while giving directions to the Police to register a case.

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

----S. 22-A---Registration of criminal case---Ex-officio Justice of Peace would always keep in mind that the powers exercised by him under S.22-A, Cr.P.C. were neither additional nor had superimposing effect on the powers of the executive and judicial authorities which had been expressly conferred upon those authorities regulating particular subject-matter---In the capacity of Administration Officer, it could oversee and check the atrocities committed by the Police and to direct them to abide by the law and not to disregard it, but to a very limited extent--Before the addition of subsection (6) to S.22-A, Cr.P.C., the consistent view of the superior courts had been that it would not control the process of investigation so minutely to stifle the course provided in the Code itself.

Shahnaz Begum's case PLD 1971 SC 677 and Brig. (Rtd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142 ref.

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

----Ss. 22-A & 551---Police Order [22 of 2002], Art.440---Powers of Justice of Peace---Scope---Unless and until a glaring case of neglect, failure to discharge statutory obligation or discharge of mandatory provision of law by the Police was fairly established, ordinarily the Justice of Peace would not exercise its powers transferring investigation from one Police Officer to another---Frequent interference in that regard would encourage unscrupulous persons/litigants to make resort to filing petition under S.22-A, Cr.P.C.; it was also advisable that at the first instance the aggrieved party would avail the help of the superior officer of the Police under provisions of clauses (c)(h) of Art.440 of the Police Order, 2002 which was an alternative effective remedy for redressal of such grievance---Even under the provisions of S.551, Cr.P.C., the Police Officers higher in rank had the powers of investigating officer for the entire local area to which they were attached and even the Inspector-General of Police being the Provincial Chief could direct the transfer of investigation from one Police Officer to another or from one branch of investigating agency to another including the Crime Branch, a high skilled investigating agency---Another remedy had been provided for redressal of such grievance through the Public Safety Commission established under Police Order, 2002---Justice of Peace, in circumstances would exercise some degree of restraint while exercising powers under clause (iii) of S.22-A, Cr.P.C.-Such powers should be exercised in a rare and exceptional cases where the exercise of such powers would become imperative otherwise, frequent and undue interference in the course of investigation could cause prejudice to one of the party or/and could pose a threat to the system itself.

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

----S. 22-A---Registration and investigation of the case---Powers of Justice of Peace---Scope---Justice of Peace in many cases frequently issue directions to the superior officers of the Police seized of the investigation of a case to take departmental disciplinary action against him---Such powers had not been expressly conferred upon Justice of Peace---Justice of Peace, in circumstances, would refrain from issuing such orders, because it would result into penalty/penal consequences---In very exceptional cases, it could record its own observation and would leave the matter to the officers superior in rank either to initiate or not any departmental disciplinary action against the Police Officer complained against---Any mistaken view held by the Justice of Peace in a summary way and the directions so issued by him, could ruin the career of a Police Officer albeit he might not be guilty of the act complained against---In any case, the internal departmental check and balance system within the Police hierarchy was not to be usurped by the Justice of Peace in a routine manner.

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

----S. 22-A---Powers of Justice of Peace---Scope and extent---Articles recovered---Articles recovered by the Police from the petitioner/accused were given in the custody of Local Union Council Nazim, however, on the petition under S.22-A, Cr.P.C. Justice of Peace, directed the Police that same be handed over to S.H.O. of the Police Station---Said order of Justice of Peace was without lawful authority and without jurisdiction---Provisions of S.22-A, Cr.P.C. could not override the specific provisions contained in Chapter LXIII, Cr.P.C. which squarely and fully regulate the process as to whom articles were to be given in custody and in what condition---Such authority, judicial in nature, had been exclusively conferred upon the one Magistrate---Such order of Justice of Peace was in disregard of statutory provisions of law, which was set at naught.

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

----S. 22-A---Jurisdiction of Justice of Peace---Scope and extent---Justice of Peace had directed DPO to take disciplinary action against the S.H.O. of Police Station---Said direction was not the domain of Justice of Peace to issue direction of that nature to the superior officer of any Police Officer to be proceeded against under Efficiency and Disciplinary Rules---Impugned order having been passed without lawful authority and without jurisdiction, was set aside---If any breach of duty had been committed by the S.H.O., then it was for the DPO alone to initiate or not to initiate disciplinary proceedings keeping in view the facts and circumstances of the case.

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

----Ss. 22-A---Jurisdiction of Justice of Peace---Scope---Justice of Peace issued order for registration of case on the charge of bribery against the petitioners who all were Police Officers---Impugned order of the Justice of Peace was absolutely a non-speaking order, having been passed without application of mind, same was not sustainable---Justice of Peace had no jurisdiction to direct to register a criminal case without specification, because Anti-Corruption Establishment had to deal with such-like cases---Impugned order, besides being cryptic in nature and substance, clearly invaded upon the statutory authority of the District Anti-Corruption Establishment and to that extent was null and void---Same was also set aside.

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

----Ss. 22-A & 561-A---Power and jurisdiction of Justice of Peace---Scope---Justice of Peace dismissed the complaint of the petitioner for registration of a criminal case against the official respondents---Earlier, in the present case, the petitioner had filed constitutional petition, which was dismissed and the petitioner was advised to avail the remedy of filing a private complaint before the competent court---Petitioner was acquitted in one case on hypertechnical grounds which were not sustainable in law, however, no appeal had been filed against the judgment of acquittal and at that stage it was not desirable to take cognizance of that case and set the same at naught---Criminal prosecution of the petitioner in both the cases was not based on the malice nor it had been held that the petitioner was meticulously prosecuted to provide him a cause to get registered a criminal case against the official respondents---Petition for quashing the proceedings, being bereft of legal merit, was dismissed.

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

----Ss. 22-A & 561-A---Penal Code (XLV of 1860), S.365-A---Justice of Peace directed registration of criminal case against the petitioner under S.365-A, P. P.C., it was alleged that son of the complainant was abducted for ransom, however, the alleged abductee was found in the custody of a Political Agent concerned where bail application of abductee was dismissed and a constitutional petition thereagainst was filed in High Court---Complainant, on the one hand had alleged that his on had been abducted for ransom by the petitioner, while on the other hand, from his own narration in the complaint it was proved that abductee was in the custody of the Political Agent and had been put to trial---Such appeared to be a transaction of a civil nature, however, the Justice of Peace, without looking at the substance of the complaint and relevant material, directed registration of criminal case for abduction of son of the complainant; in that way, a civil dispute had been converted into a criminal case and that too under S.365-A, P.P.C. which was a very heinous crime---No cognizable offence having been constituted, impugned order passed by the Justice of Peace, being bad in law and being without jurisdiction, was set aside.

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

----Ss. 22-A & 561-A---Penal Code (XLV of 1860), Ss.506/448---Justice of Peace directed the registration of criminal case against the petitioner under Ss.506/448, P.P.C., which had been registered vide F.I.R.---Neither the respondent/complainant had been ejected from the house nor any injury was caused to him during alleged act of trespass/threat, however, the order had been given effect and the case had been registered despite the fact that prayer in the petition made was for protection only---Petition against order of Justice of Peace was disposed of by High Court with directions to the Police to complete investigation without any further delay and if, on the basis of material collected during that course, no case was made out, then it would file a cancellation report before the Illaqa Magistrate or proceed the other way.

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

----S. 22-A---Powers and duties of Justice of Peace---Scope---Provisions of S.22-A, Cr.P.C. had no superimposing or overriding effect on other provisions of Cr.P.C. relating to the investigation, inquiry and trial, rather those were ancillary and supplementary in nature---Object behind S.22-A, Cr.P.C. was to provide a check over the Police, but of limited nature and within the defined parameters contained in all the three clauses of subsection (6) of S.22-A, Cr.P.C.---Section 22-A, Cr.P.C. would not be construed to be wider in scope giving absolute powers to the Justice of Peace to interfere with the scheme clearly laying down the procedure, privileges, duties, powers and obligations of Police Officers concerned with the course of registration of criminal cases, investigating the same and filing of charge-sheet/cancellation report before the court competent to take cognizance---Right to investigate the crime, identify the suspects, catch and interrogate them and once their investigations were completed, they had to file the charge-sheet against accused, or if no case was made out, to file a cancellation report---Justice of Peace would not interfere with the Police investigation, if it was conducted in accordance with the requirements of the provisions of the relevant chapter of Cr.P.C. and in case of any complaint in that regard, the Justice of Peace had to oversee the said course with a limited scope of interference wherever it availed become imperative on well-established facts.

Akhtar Zaman for Petitioner.

Gohar Salim for Respondents.

Ishtiaq Ibrahim Addl. A.-G. for the State.

Date of hearing: 9th February, 2009.

PCrLJ 2010 PESHAWAR HIGH COURT 83 #

2010 P Cr. LJ83

[Peshawar]

Before Liaqat Ali Shah, J

ASMATULLAH KHAN----Petitioner

Versus

THE STATE and 3 others----Respondents

Criminal Miscellaneous No.1467 of 2009, decided on 25th September, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/34---Murder---Bail, grant of---Further inquiry---Three persons were charged for firing at the deceased who had sustained only one inlet wound---Accused had surrendered before the Trial Court for pre-arrest bail--Statements of certain persons of the locality were recorded by the Police who stated that accused at relevant time was present at another place---No empty had been recovered from the spot---Except for accused, the other two accused persons had become fugitive from law and accused unlike his absconding co-accused surrendered himself to the process of law---Whether surrender of accused to the process of law unlike his absconding co-accused, his plea of alibi and absence of any empty from the spot of occurrence, were compatible with his innocence or guilt, were the questions requiring further inquiry---Accused was admitted to bail in circumstances.

Sher Muhammad Khan for Petitioner.

Zahid Yousaf, A.A.-G. for the State and others.

Muhammad Yaqoob Marwat for the Complainant.

Date of hearing: 18th September, 2009.

PCrLJ 2010 PESHAWAR HIGH COURT 105 #

2010 P Cr. L J 105

[Peshawar]

Before Abdul Aziz Kundi, J

Messrs ORIX LEASING PAKISTAN LTD. through Branch Manager----Petitioner

Versus

THE STATE and 2 others----Respondents

Criminal Miscellaneous (Q) No.83 of 2009, decided on 2nd October, 2009.

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

----Ss. 561-A, 435 & 439---Competency of quashing petition against revisional order---Additional Advocate-General had contended that quashing petition under S.561-A, Cr. P. C. was not competent against revisional order---Validity---Powers possessed by the courts under Ss.435/439, Cr. P. C. would not impinge, curtail or limit in any manner whatsoever the powers under S.561-A, Cr.P.C.---High Court would exercise its powers under S.561-A, Cr. P. C. and interfere when it was specified that in the appreciation of evidence by the lower courts gross miscarriage of justice had taken place amounting to abuse of process of the court or interference was necessary to secure the ends of justice.

Sarwar Ali v. The State 1983 PCr.LJ 329; Raja Abdul Majid v. The State and another PLD 1997 Kar. 358; Muhammad Shafiq and others v. Abdul Hayee and others 1987 SCMR 1371 and Syed Munawar Ali Zaidi v. Mst. Qaiser Jehan and another PLD 1982 SC 406 ref.

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

----S. 516-A---Superdari of vehicle---Petition for---Petitioner-company was admittedly the owner of the car in question and there was no rival claimant for its custody---Car in question was no more required for Investigating Agency; and its being parked to any place without being put to use, would certainly deteriorate its condition---Accepting petition, custody of the car was ordered to be handed over to the petitioner on furnishing bail bonds.

Umar Farooq for Petitioner.

Zahid Yousaf Qureshi, A.A.-G. for the State.

Muhammad Taif Khan for Respondents.

Date of hearing: 2nd October, 2009.

PCrLJ 2010 PESHAWAR HIGH COURT 282 #

2010 P Cr. LJ 282

[Peshawar]

Before Abdul Aziz Kundi, J

ALI QASWAR BOKHARI----Petitioner

Versus

MUHAMMAD ISLAM and another----Respondents

B.B.A. No.1324 of 2009, decided on 6th November, 2009.

Criminal Procedure Code (V of 1898)---

---Ss. 497 & 498---Penal Code (XLV of 1860), Ss.161/165-A/170/420/109---Prevention of Corruption Act (II of 1947), S.5.(2)--Illegal gratification, personating a public servant, cheating and abetting---Pre-arrest and post-arrest bail---Powers of Special Judge---Scope---Powers to grant pre-arrest and post arrest bail were concurrent in Special Judge as well as in the High Court, but propriety and decency required approach in the first instance to the original court i.e. Special Judge; and it was a very exceptional and compelling circumstance, where accused could approach the High Court---Accused, in the present case, having approached the Special Judge and rightly so, he should have attended the court on the day when the order was to be announced, but for certain compelling reasons when he could not attend the court, resulting into the dismissal of his application in default, he should have moved application explaining his absence on the date fixed and requested for restoration of the same---Procedure adopted in the case, if allowed and approved by finally deciding application for bail before arrest on merits, it would open a flood gate of similar petitions and would be misused---Person against whom a case had been registered could approach in the first instance the original court for bail before arrest because propriety so demanded---While rejecting application for pre-arrest bail, High Court directed that accused should not be arrested by any agency in the case till date on which he would appear before the Special Judge, who on his appearance should treat his application for his pre-arrest bail, which was earlier dismissed in default as restored and decide the same on merits strictly in accordance with law and record of the case.

2000 PCr.LJ 110; 2009 PCr.LJ 690; 2009 YLR 1140; 2007 MLD 73; 2003 SCMR 1407; 2006 PCr.LJ 612; 1999 MLD 1222; 2000 SCMR 1405; Raees Wazir Ahmad v. The State 2004 SCMR 1167; 2002 SCMR 1373; PLD 1989 SC 347; 2007 MLD 428; 2004 YLR 1345; 2004 MLD 208 and PLD 1995 SC 34 ref.

Abdul Latif Afridi for Petitioner.

Muzammil Khan, D.A.-G. for the State.

Fazal EIahi Khan for the Complainant.

Date of hearing: 4th November, 2009.

PCrLJ 2010 PESHAWAR HIGH COURT 328 #

2010 P Cr. L J 328

[Peshawar]

Before Said Maroof Khan, J

ZAIN-UL-ABIDIN----Petitioner

Versus

LAL MUHAMMAD and another----Respondents

Criminal Miscellaneous Bail Petition No.1297 of 2009, decided on 18th September, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.419/420---Personation and cheating---Bail, grant of---Further inquiry---Only allegation against accused was that he had prepared a fake transfer letter and fraudulently got registered the vehicle in his name---Question as to whether the facts alleged against accused constituted an offence punishable under Ss.419 & 420, P.P.C., was a matter requiring further inquiry---Accused was admitted to bail, in circumstances.

Noor Alam Khan for Petitioner.

Waqar Ali, D.A.-G. for the State.

Date of hearing: 18th September, 2009.

PCrLJ 2010 PESHAWAR HIGH COURT 348 #

2010 P Cr. LJ 348

[Peshawar]

Before Muhammad Raza Khan, C.J. and Hamid Farooq Durrani, J

BASHIR KHAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.177 of 2006, decided on 1st July, 2008.

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

---Ss. 6/7/8/9---Recovery of narcotics---Appreciation of evidence---Benefit of doubt---Murasila as well as F.I.R. indicated recovery of certain items, but said items were not included in the recovered case property---Items mentioned in memo. of personal search were never produced before the court during trial---In cases involving recovery of narcotic, the report of laboratory indicating chemical analysis of samples thereof was considered to be of immense significance as it could provide a strong ground for connection between an accused and the incriminating material---Three samples were separated from the incriminating narcotics---Said exhibit, though contained F.I.R. number and its date, but was silent regarding. the name of Police Station and the relevant district---All the doubts in respect of subjecting the solitary sample, allegedly separated from the recovered lot and its dispatch to Forensic Science Laboratory, would reasonably prevail, in circumstances---Case of prosecution was that after recovery of contraband narcotic, the entire bulk along with one separated sample of 5 grams was deposited in the State warehouse, but deposit of incriminating vehicle, was not gatherable from, investigation record produced before the Trial Court---Inspector Incharge, warehouse, did not speak of deposit of sample along with the case property in the said warehouse---Preparation of recovery memo. was very much dubious as the said document, though pertained to seizure of incriminating narcotics, was not signed by any of the witnesses thereto---Non-production of mobile phone, driving licence and pistol etc. before the Trial Court, despite its recovery at the spot of occurrence, had extended sufficient reason to disbelieve the version of prosecution in reference to the entire alleged recoveries---Prosecution had nowhere in the entire trial, attempted to prove that the samples allegedly separated on the spot were withdrawn from the whole lot comprising 39 packets---Prosecution, in circumstances remained unsuccessful in bringing home the charge against accused without reasonable doubt---Impugned findings of the Trial Court were set aside and accused was acquitted, in circumstances.

Noor Alam Khan for Appellant.

Roohul Amin, D.A.-G. for the State.

Date of hearing: 1st July, 2008.

PCrLJ 2010 PESHAWAR HIGH COURT 365 #

2010 P Cr. L J 365

[Peshawar]

Before Liaqat Ali Shah, J

ABDUL KARIM----Petitioner

Versus

MAND AKBER and another-Respondents

Criminal Miscellaneous No.1728 of 2009, decided on 11th December, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/114/148/149---Qatl-i-amd and attempt to commit Qatl-i-amd---Bail, grant of---Further inquiry---No doubt, in the incident four persons of one family lost their lives and the fifth one got injured, but it was not the damage alone which was to be taken into consideration for the purpose of bail---Law had provided that if it appeared at any stage or investigation, inquiry or trial that there- were no reasonable grounds for believing that accused had committed a non-bailable offence, but sufficient grounds existed for further inquiry into his guilt, accused would, pending such inquiry, be released on bail---Allegations against accused were to the effect that he was empty-handed and along with his brother directed remaining co-accused to fire at the complainant party---Accused happened to be the brother of co-accused, he surrendered voluntarily before the Trial Court and applied for pre-arrest bail within a few days after the charge against him---Each criminal, case had its own peculiar circumstances and it was to be decided on the basis of its own merits---Case of accused appeared to be one of further inquiry, he was admitted to bail, in circumstances.

2006 SCMR 966 and PLD 2008 Pesh. 45 ref.

Sahibzada Asadullah for Petitioner.

Miss Abida Safdar for the State.

Muhammad Raziq Khan for the Complainant.

Date of hearing: 11th December, 2009.

PCrLJ 2010 PESHAWAR HIGH COURT 396 #

2010 P Cr. L J 396

[Peshawar]

Before Mian Fasih-ul-Mulk, J

SHABBIR KHAN----Petitioner

Versus

THE STATE and 2 others----Respondents

Criminal Miscellaneous No.397 of 2009, decided on 7th December, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---West Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-i-amd and recovery of arms---Bail, refusal of---Accused was directly charged in the F.I.R. with specific role of killing of two innocent persons---Recovery of weapons of offence had been effected on the pointation of accused---Such was also a strong factor prima facie connecting accused with the commission of the offence---Facts and circumstances of the case would conveniently invite the application of provision of law entailing punishment falling within the prohibitory clause of S.497, Cr. P. C.

Abdur Razaq Chughtai for Appellant.

Barrister Jerongir Jadoon for Respondent.

Miss Rohila Mughal for the State.

Date of hearing: 7th December, 2009.

PCrLJ 2010 PESHAWAR HIGH COURT 450 #

2010 P Cr. L J 450

[Peshawar]

Before Miftah-ud-Din Khan and Mian Fasih-ul-Mulk, JJ

ARSHAD----Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.90 of 2006 and 68 of 2008, decided on 11th November, 2009.

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

----S. 13--Recovery of arms---Appreciation of evidence---Accused was involved in case registered against him under S.302, P.P.C. and during interrogation, he allegedly led the Police to the recovery of alleged crime pistol, but the allegation by itself would not prove the commission of offence without sufficient evidence---Accused was .behind the bars since the date of his arrest on 20-6-2003, almost about more than six years and he had already undergone the sentence of imprisonment .in the present case---As accused in the murder case had already been acquitted due to lack of evidence, he deserved acquittal in the present case-Impugned conviction and sentence awarded to accused, was set aside and he was released.

Saeed Akhtar Khan for Appellant.

Muhammad Parvez for Respondent.

Sardar Basharat Khan for the State.

Date of hearing: 11th November, 2009.

PCrLJ 2010 PESHAWAR HIGH COURT 458 #

2010 P Cr. LJ 458

[Peshawar]

Before Miftah-ud-Din Khan and Mian Fasih-ul-Mulk, JJ

MUHAMMAD SHAFIQUE----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.43 of 2009, decided on 22nd December, 2009.

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

----S. 9(c)---Possessing narcotic---Appreciation of evidence---Though huge quantity of narcotic had allegedly been recovered from the possession of accused, but besides so many other contradictions, the prosecution witnesses had contradicted each other on material points with regard to the time of their arrival at the spot, the time after lapse of which the vehicle carrying narcotic arrived, the number of passengers who were present in the vehicle, weight of contraband along with bag and without bag, etc.---Strong reasons were available to disbelieve statements of both the prosecution witnesses and to discard the same and same could not be relied, upon for the purpose of recording conviction---Both the prosecution witnesses appeared to be either not present at the scene of occurrence or were purposely giving false statements concealing material before or after the occurrence having direct bearing on the fate of the case---Sample of alleged contraband were received in laboratory with a delay of 41/42 days---Neither the prosecution could offer any plausible explanation nor State Counsel could justify such delay or its lawful custody on any hypothesis---Trial Court though had discussed the shaky prosecution evidence and was conscious of its quality, but probably was influenced by the huge quantity involved in the case and extended every possible benefit to the prosecution, rather than to the defence---In such like cases, for the safe administration of justice, it was not the quantity of contraband, but the quality of evidence produced in the court to be considered for reaching a correct conclusion and just decision of the case---Facts, circumstances and evidence available on record had suggested that the prosecution had not been able to prove its case against accused beyond reasonable doubt, he deserved acquittal---Conviction and sentence of accused were set aside and he was acquitted of the charge against him.?

Sahar Gul for Appellant.

Mehreen, Nazar for the State.

Date of hearing: 22nd December, 2009.

PCrLJ 2010 PESHAWAR HIGH COURT 477 #

2010 P Cr. LJ 477

[Peshawar]

Before Dost Muhammad Khan and Mazhar Alam Khan, JJ

Syed MUATASIM WASIT alias MOMI----Appellant

Versus

THE STATE and another----Respondents

Criminal Appeal No.493 and Criminal Revision No.165 of 2008, decided on 11th November, 2009.

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

----S. 302/34---Qatt-i-amd---Appreciation of evidence---After about three days of the occurrence, the complainant recorded his supplementary statement and charged accused along with acquitted co-accused, but on the basis of suspicion as it was accused who broke the news that the deceased was going to commit suicide, the suspicion fell on the suspected one---To convict a person on a capital charge, evidence must come from unimpeachable source, which lacked in, the present case---In the system of criminal justice, drawing presumption about guilt of accused in the absence of legal proof, had never been acknowledged by the courts---To condemn an accused to death through a judicial verdict, there must be strong and legally acceptable evidence leading the court to a definite conclusion about his guilt, otherwise, a single doubt if found reasonable, would entitle him to acquittal, not as a matter of 'grace, but as a matter of right---Said principle, well embedded in the system, had been conveniently ignored by the Trial Court while making appraisal of evidence, rather it had unreasonably stretched each and every piece of evidence in favour of prosecution giving unusual and wrong meaning to the same which exercise led it to a patently wrong conclusion---Nature of evidence adduced at the trial, the dishonest improvements made by the prosecution witnesses at trial stage, the dishonest investigation conducted by the Police by procuring witnesses and fabricating evidence; and when many links in the chain were missing, prosecution had miserably failed to establish the guilt of accused beyond reasonable doubt---Trial Court neither observed judicial care and caution nor followed cardinal principle of justice while making appraisal of evidence---Conviction and sentence awarded to accused, were not maintainable---Conviction and death sentence awarded to accused by the Trial Court, were set aside and accused was acquitted of all the charges levelled against him.

Jahangir Hayat v. The State PLD 1999 Lah. 285; PLD 1953 FC 214; PLD 1952 PC 119; Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047 and Sarfraz Khan v. State and others 1996 SCMR 188 ref.

(b) Criminal trial---

----Presumption---Scope---Benefit of doubt---Drawing presumption about guilt of an accused in the absence of legal proof had never been acknowledged by the courts---To condemn an accused to death through a judicial verdict, there must be strong and legally acceptable evidence leading the court to a definite conclusion about his guilt, otherwise a single doubt, if found reasonable, would entitle accused to acquittal, not as a matter of grace, but as a matter of right.

Barristers M. Zahurul Haq and Syed Masood Kausar for Appellant.

Barrister Waqar Ali Khan, A.A.-G. for the State.

Asadullah Khan Chamkani for the Complainant.

Date of hearing: 11th November, 2009.

PCrLJ 2010 PESHAWAR HIGH COURT 502 #

2010 P Cr. L J 502

[Peshawar]

Before Attaullah Khan, J

DILAWAR KHAN and another-Petitioners

Versus

IQBAL KHAN and another----Respondents

Criminal Miscellaneous Bail Cancellation No.205 of 2009, decided on 18th December, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/324/34---Qatl-i-amd---Cancellation of bail, petition for---Record had revealed that respondent/accused had the same role as that of co-accused whose bail had been cancelled---High Court, without going into further merits of the case, held that respondent/accused was not entitled to bail---Bail was cancelled in circumstances.

Abdul Latif Khan Baloch for Petitioners.

Faqir Mahbooul Hamid for Respondents.

Fazlur Rehman Baloch for the State.

Date of hearing: 18th December, 2009.

PCrLJ 2010 PESHAWAR HIGH COURT 547 #

2010 P Cr. LJ 547

[Peshawar]

Before Abdul Aziz Kundi and Mazhar Alam Khan Miankhel, JJ

HAFIZ ULLAH----Appellant

Versus

THE STATE and 3 others----Respondents

Criminal Appeal No.54 and Murder Reference No.3 of 2008, decided on 11th November, 2009.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Only eye-witness in the case was complainant who was the real brother of the deceased---Contradiction was found in the statement of the complainant and the site plan---Except for blood-stained earth, no recovery had been effected from the scene of occurrence, either in the shape of empties of 7.62 bore klashnikov or spent bullets---Non-recovery of empties from the scene of occurrence had created doubts in a prudent" mind---Contradictions in the statement of the complainant/eye-witness vis-a-vis the site 'plan, ,which was prepared at his pointation, had lent further support to withhold the truth and substituting the same by a self made story---While extending benefit of doubt to accused, his appeal was accepted and he was acquitted of the charge---Conviction and sentence awarded by the Trial Court to accused were set aside and he was set at liberty.

M. Karim Anjum and Saifur Rehman for Appellant.

Sanaullah Shamim Gandapur, D.A.-G. for the State.

Sultan Shaharyar Khan Marwat for the Complainant.

Date of hearing: 24th September, 2009.

PCrLJ 2010 PESHAWAR HIGH COURT 558 #

2010 P Cr. L J 558

[Peshawar]

Before Attaullah Khan, J

IZZAT KHAN----Petitioner

Versus

MUHAMMAD IQBAL and another----Respondents

Criminal Miscellaneous Quashment Petition No.113 of 2009, decided on 21st December, 2009.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), S.365-B---Abduction---Quashing of F.I.R.---Alleged abductee had left the house of her parents of her own consent, but it was yet to be seen at trial, when complete evidence would come on record, that whether there was no other Nikahnama in the field at the time of occurrence including the other Islamic requirements---Person could approach High Court under S.561-A, Cr.P.C. when other remedy was not available---In the present case, F. I. R. had been registered and the investigation was also completed---Grounds agitated by the counsel for the petitioner were such which could be considered by the Trial Court during or before trial---If the plea of the petitioner was considered, it could open a Pandora box and every accused against whom F.I.R. was registered would take shelter of S.561-A, Cr.P.C., and role of the Trial Court would become redundant and consequently High Court would replace the Trial Court---Petitioner had opportunity during trial to file an application under S.265-K, Cr.P.C. for acquittal if evidence against him was not available---Allegations were there against the petitioner and he must face it and defend it before relevant forum---Petition for quashment was dismissed.

Khawaja Fazal Karim v. The State and another PLD 1976 SC 461 and Ghulam Muhammad v. Muzzamel Khan and others PLD 1967 SC 317 ref.

Muhammad Saleem Khan Marwat for Petitioner.

PCrLJ 2010 PESHAWAR HIGH COURT 567 #

2010 P Cr. L J 567

[Peshawar]

Before Attaullah Khan and Muhammad Safdar Khan Sikandri, JJ

RAFIQ and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.66 of 2008, decided on 21st January, 2010.

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

---S. 6---Possession of narcotic---Word 'possession', defined and explained-Possession' implied a physical capacity to deal with the " thing as one liked to the exclusion of any one else and a determination to exclusion that physical possession on one's own behalf---Possession implied dominion over an object that he had it and that he could exercise it---Possession, must be conscious and intelligent possession and merely the physical presence of accused.

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

----S. 9(e)---Possession of narcotic---Appreciation of evidence---According to statement of co-accused under S.342, Cr.P.C., he was travelling as passenger in the vehicle in question; and had got no concern with the vehicle or the contraband---Fatal question would be the conscious possession and knowledge of contraband---Unless those two facts were proved, accused could not be connected with the guilt---Contraband had been recovered from the secret. cavities of the vehicle being driven by main accused-Nothing was on record to show that co-accused had any knowledge about the contraband---No evidence was available to the effect that co-accused being companion of main accused/driver of the vehicle had any conscious knowledge of contraband in the vehicle; and that they had joint possession of the recovered contraband---Doubt had arisen to the extent of participation of co-accused---Fact that contraband belonged to accused and absconding co-accused had found corroboration from abscondence of said absconded accused who was at large---Nothing was on record to show the ownership of the contraband recovered from the secret cavities of the vehicle---Co-accused was not connected with the offence as conscious possession , knowledge and ownership were not proved---Co-accused could not be convicted on the available evidence, his appeal was accepted---Judgment of conviction recorded against him was set aside, in circumstances.

----S. 9(c)---Possession of narcotic---Appreciation of evidence--Case of accused was different than the co-accused as he at the relevant time was driving the vehicle from which opium in question was recovered---Recovery memo. had proved that driving licence was in the name of accused which was taken into possession by the Police along with registration of the vehicle---Recovery of driving licence in the name of accused while registration in the name of some other person, were sufficient material to conclude that accused was driving the vehicle and he was doing so with implied permission of owner---Accused had taken a conflicting plea in the statement recorded under S.342, Cr.P.C.---Accused was driving the vehicle and being so, it could very safely be inferred that accused was responsible for the secret cavities, and it was in his knowledge that there was opium therein---Knowledge, in circumstances stood proved---Case of accused thus stood on different footings as he was in exclusive possession of vehicle---Accused was in the knowledge of the secret cavities and he would be deemed to be in exclusive possession of the opium recovered---Charge against accused having stood proved, his appeal was dismissed being without force.

2008 SCMR 931 ref.

Noor Alam Khan for Appellant.

Sanaullah Khan Shamim Gandapur, D.A.-G. for the State.

PCrLJ 2010 PESHAWAR HIGH COURT 613 #

2010 P Cr. LJ 613

[Peshawar]

Before Liaqat Ali Shah, J

KHAILI JAN----Applicant

Versus

THE STATE and another----Respondents

Criminal Bail Applications Nos.1857, 1913 and 2057 of 2009, decided on 25th January, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/324/353/427/34---Qatl-i-amd and assault---Bail, grant of---No material was on judicial file or on Police file on the basis of which accused could be connected with the commission of offence---Accused though had been arrested for a very tragic incident, but lack of reasonable grounds led to the belief that accused were not guilty of the offence charged with---Accused were admitted to bail, in circumstances.

Shah Faisal Utmankhel for Petitioner.

Fazlur Rehman Khan, A.A.-G. for the State.

Complainant in person.

Date of hearing: 25th January, 2010.

PCrLJ 2010 PESHAWAR HIGH COURT 623 #

2010 P Cr. L J 623

[Peshawar]

Before Abdul Aziz Kundi, J

Raja NADEEM AHMAD----Petitioner

Versus

JAVED IQBAL and another----Respondents

Criminal Miscellaneous/Bail Application No.1877 of 2009, decided on 4th January, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.420/468/471---Cheating, forgery and using as genuine a forged document---Bail, grant of---Further inquiry---Accused was charged for withdrawing amount from the account of the complainant through "on line" facility and credited same into his account---Account opening pro forma would show that many formalities, the fulfilment of which were necessary for opening of an account had been overlooked---Without the active connivance of Bank officials, the accused could not have opened and operated the account---Complainant from whose account the amount in question was withdrawn and credited to the account of accused, had totally exonerated the accused and instead had involved a person other than the accused---Case of accused, in circumstances, had become one of further inquiry---Trial against accused was not in sight in the near future---Accused could not be kept behind the bars for indefinite period, he was admitted to bail.

Asadullah Chamkani for Petitioner.

Ishaq Shah for the State.

Fazal Karim Khan for the Complainant.

Date of hearing: 4th January, 2010.

PCrLJ 2010 PESHAWAR HIGH COURT 661 #

2010 P Cr. L J 661

[Peshawar]

Before Attaullah Khan and Muhammad Safdar Khan Sikandri, JJ

REHMAT ULLAH KHAN----Appellant

Versus

ALI KHEL and another----Respondents

Criminal Appeal No.44 and Murder Reference No.5 of 2009, decided on 16th February, 2010.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 201---West Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-i-amd---Appreciation of evidence---Trial Court had based its judgment on the recovery, of pistol and empty on the pointation of accused---No one would be involved in the crime, unless evidence and circumstances were leading to the same---Police had based its opinion on the alleged fact that while present in the Police Station accused was disturbed and when he was interrogated said articles were recovered---Such was not the proper way because there was no material on record to establish the involvement of accused in the crime---Alleged recovery was also not beyond doubt as two statements of witnesses regarding said recovery was contradictory and conflicting each other, which could not be believed---No eye-witness of the occurrence was available---Evidence of prosecution witnesses coupled with F.I.R. and statement of accused pointed out two versions---If put both said versions in juxtaposition, the version of accused was natural and supported by the circumstances, which could be accepted---Conviction recorded by the Trial Court was based on unsound reasoning, surmises and conjectures---Case being that of double version, benefit of the same should go to accused particularly when the version of accused was near to truth---No ocular testimony was available---Motive was too weak and not proved through documentary evidence---Prosecution had badly failed to prove the case against accused---Conviction and sentence recorded by the Trial Court against accused, were set aside and accused was set free, in circumstances.

Ghulam Mustafa v. The State 2009 SCMR 916 ref.

Abdur Rehman Khan and Muhammad Yousaf Khan for Appellant.

Farooq Akhtar for the State.

Muhammad Waheed Anjum for the Complainant.

Date of hearing: 16th February, 2010.

PCrLJ 2010 PESHAWAR HIGH COURT 676 #

2010 P Cr. L J 676

[Peshawar]

Before Attaullah Khan and Muhammad Safdar Khan Sikandri, JJ

MATIULLAH and another----Appellants

Versus

THE STATE and another----Respondents

Criminal Appeal No.18 of 2007, decided on 27th January, 2010.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Complainant and prosecution witnesses who had put forth the ocular account of the occurrence, were cross-examined in length, but their credibility was not shattered---Prosecution witnesses who were brothers of the deceased, their ocular account was worth believing as their presence on the spot was natural---Close relationship of prosecution witnesses, would not adversely affect their evidence because their testimony had been fully and sufficiently corroborated by other circumstantial evidence including medical version and site plan---Related and inimical witnesses, could be believed and could not be discarded on that ground alone---Accused being co-villagers of the prosecution witnesses, the question of mistaken identity would not arise---Prosecution witnesses were truthful witnesses and their deposition was confidence-inspiring---Had the prosecution witnesses intended false implication, they would have also involved acquitted accused by attributing him material role, but that course was not adopted, which reflected the honest conduct of the eye-witnesses and ruled out false implication---Prosecution witnesses had alleged the motive to be the dispute of landed property, however, motive alone would not come in the way of prosecution, if there was otherwise strong, confidence-inspiring, unimpeachable and reliable evidence in support of prosecution case---No discrepancies had been pointed out by accused in the site plan, which otherwise was not a substantive piece of evidence, but it would only give an idea to the Trial Court to record a correct conclusion---Recoveries of big number of empties from the spot would commensurate with the number of injuries on the persons of deceased as well as the role of firing by two persons with two rifles---Occurrence had taken place in the manner as described by the prosecution witnesses and there was no scope for false implication of accused persons by the prosecution witnesses---Delay of two hours in lodging the report, had sufficiently been explained---Prosecution was able to bring home guilt of accused persons on the basis of eye-witnesses---Minor contradictions and omissions in the case, if any, would not shatter the credibility of ocular account duly corroborated by circumstantial evidence---Accused had correctly been held responsible for qatl-i-amd of deceased and the sentence and conviction awarded by the Trial Court to them was justified and did not call for interference---Appeal was dismissed.

2006 SCMR 1551; 1994 SCMR 1; PLJ 2001 Peshawar 112; 2065 SCMR 1568; Haqnawaz v. The State 2008 PCr.LJ 486; 1996 SCMR 1926 rel.

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

----S. 302(b)---Qatl-i-amd---Petition for enhancement of sentence---In case of proof of qatl-i-amd against accused no doubt, the normal penalty was death sentence, but in the present cease, the complainant had neither mentioned nor proved any previous blood feud or enmity for murder from either side to compel the accused persons for taking the revenge of any murder front their side and the murder of deceased could be the result of sudden provocation at the spur of the moment when co-accused prompted accused to kill the deceased---Being not pre-meditated murder at the hands of accused persons, such would be considered a mitigating circumstance in favour of accused persons--Petition for enhancement of sentence being without any substance, was dismissed, in circumstances.

Saleemullah Khan Ranazai for Appellant.

Farooq Akhtar for the State.

Haji Khawaja Muhammad Khan for the Complainant.

Date of hearing: 27th January, 2010.

PCrLJ 2010 PESHAWAR HIGH COURT 783 #

2010 P Cr. L J 783

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

WAHABUDDIN---Petitioner

Versus

FAYYAZ KHAN and 2 others---Respondents

B.C.A. No.1422 of 2009, decided on Ist October, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.324,447/148/149---Attempt to commit qatl-e-amd and criminal trespass---Cancellation of bail, petition for---Grounds for grant of bail and that of cancellation of bail granted by a competent court were totally different---Strong and cogent reasons were required for the recall of bail granting order for instance, if the bail granting order was perverse or in disregard of settled principles regulating the grant of bail or, which was based on no material/evidence or accused after grant of bail had misused the concession so extended to accused---Counsel for the petitioner/ complainant was unable to put forth any of the said principles governing the cancellation of bail---No such other circumstance was pointed out which could have helped him in support of the petition for cancellation of bail---Trial Court, in circumstances, had rightly confirmed the ad interim pre-arrest bail of accused within ambit of law.

Sher Muhammad Khan for Petitioner.

Barrister Masood Kausar for Respondent.

Fazalur Rahman Khan, A.-A.G. for the State.

Date of hearing: 1st October, 2009.

PCrLJ 2010 PESHAWAR HIGH COURT 792 #

2010 P Cr. L J 792

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

WAHABUDDIN---Petitioner

Versus

THE STATE and another---Respondents

Bail Application No.1428 of 2009, decided on 1st October, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/324/34---Qatl-e-amd and attempt to commit qatl-e-amd---Bail, refusal of---Counsel for accused had submitted that case for which accused had been charged was a cross-case which was registered at the report of accused against the complainant of the present case---Even if the case was considered to be cross-case, the question of further inquiry on the basis of cross-case in the given circumstances could not be considered or would not be valid ground for the release of accused on bail, who had been directly charged in the F.I.R.; and from whom weapon of offence had been recovered and four empties of 7.62 bore had also been recovered from the spot; and the Forensic Science Laboratory report was positive, wherein a young man of 27/28 years of age was done to death---Medical report was also in line with the prosecution story and the offence for which accused had been charged fell within the prohibitory clause of S.497, Cr.P.C.---Bail petition was dismissed in circumstances.

Sher Muhammad Khan for Petitioner.

Fazlur Rehman Khan, A.A.-G. for the State.

Barrister Masood Kausar for the Complainant.

Date of hearing: 1st October, 2009:

PCrLJ 2010 PESHAWAR HIGH COURT 847 #

2010 P Cr. L J 847

[Peshawar]

Before Muhammad Safdar Khan Sikandari, J

BADSHAH alias DOCTOR---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.53 of 2009, decided on 1st March, 2010.

Penal Code (XLV of 1860)---

----Ss. 324 & 337-F(iv)---Attempt to commit qatl-i-amd---Appreciation of evidence---Occurrence had taken place at broad-daylight in between the village abadi in the fields---Report having been lodged promptly, there was no room for consultation and deliberation or false implication of accused in the case--Enmity existed between the parties and the Investigating Agency succeeded to procure a host of previously registered F.I. Rs. between the parties---Complainant was examined in the court as prosecution witness and he was subjected to lengthy cross-examination, but the defence had badly failed to shatter his credibility--Other prosecution witness without any exaggeration had supported the version put forth by the complainant---Said prosecution witness though was related to the complainant, but being a natural witness, his credibility would not be considered doubtful, because the site plan clearly indicated his presence on the spot and he had seen the occurrence with his own eyes and he did not come under the definition of interested witness--Injury on the victim had confirmed that occurrence had taken place in the manner as alleged by the complainant and eye-witness---Accused was charged directly in the F.I.R. without any delay which could be fatal for prosecution---Injuries allegedly sustained by accused with the hands of complainant, did not appeal to mind and, if any, probably it would have been caused during scuffle when prosecution witness took part in the bloody game at the time of snatching the kalashnikov from accused---Story devised by accused in his statement recorded under S.342, Cr.P.C. seemed to be concocted which was made in order to save his skin from the charge---Prosecution, in circumstances, was able to bring home guilt of accused beyond any shadow of reasonable doubt---In view of the balanced judgment passed by the Trial Court, it was not appropriate to enhance the sentence in view of peculiar circumstances of the case---Appeal against conviction and revision for enhancement of sentence to accused, were dismissed.

2002 SCMR 1999 ref.

S. Fakhurdin Shah for Petitioner.

Farooq Akhtar for the State.

Gohar Zaman Khan Kundi for the Complainant.

Date of hearing: 1st March, 2010.

PCrLJ 2010 PESHAWAR HIGH COURT 905 #

2010 P Cr. L J 905

[Peshawar]

Before Attaullah Khan, J

RAB NAWAZ----Petitioner

Versus

GUL ADAM KHAN and another----Respondents

Criminal Miscellaneous Bail Cancellation No.234 of 2009, decided on 12th March, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16---Enticing a woman with criminal intent---Cancellation of bail, petition for---Main allegation in the F.I.R. was that of enticing away of a woman---Said woman had performed Nikah with respondent/accused while she was already in Nikah of an other person---Said lady appeared before the Magistrate and recorded her statement wherein she had stated that she was unmarried and had entered into the Nikah on her own sweet will with accused; and was living happily with him---Such statement was further supported by an affidavit available on record---Record also showed that alleged abductee had filed a suit for jactitation of marriage against her former husband in the Family Court---All said affairs had made the case of accused as arguable for the purpose of bail---Principle for grant of bail and its cancellation were altogether different---For cancellation of bail, the complainant was required to establish strong reasons; it was also to be established that either bail was misused or evidence was tampered--Nothing, in circumstances, was on record to make the case of the petitioner fit for cancellation of bail---Cancellation of bail was declined.

Sanaullah Khan Gandapur for Petitioner.

Gohar Zaman Kundi for Respondents.

Sanaullah Shamim, D.A.-G. for the State.

Date of hearing: 12th March, 2010.

PCrLJ 2010 PESHAWAR HIGH COURT 911 #

2010 P Cr. L J 911

[Peshawar]

Before Muhammad Safdar Khan Sikandari, J

INAMULLAH----Petitioner

Versus

ZAKIRULLAH KHAN and another----Respondents

Criminal Bail Cancellation Application No.439 of 2009, decided on 19th March, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.302/34---Qatl-i-amd---Cancellation of bail, petition for---Respondent/accused was nominated in the F.I.R. by the petitioner/complainant, but complainant himself was not the eye-witness to the occurrence, nor he had pointed out the authentic source giving the clue of involvement of accused in the commission of offence, except the presumption of dispute regarding the women-folk-Impugned bail granting order of the court below was based on sound reasons---DPP being present on the date of arguments and disposal of bail application, compliance of notice as enshrined in the proviso of subsection (1) of S.497, Cr.P.C. had already been executed, in circumstances non-service of complainant/petitioner could not be a ground for cancellation of bail granted to accused when otherwise he was found eligible for bail---Besides grounds for grant of bail and cancellation thereof were altogether different from each other---Strong and exceptional grounds were required for cancellation of bail---Nothing had been indicated that accused had tampered with the evidence of prosecution or he had misused the concession of bail by threatening the complainant party to fulfil its illegal wishes---Bail granted to accused, could not he cancelled, in circumstances---Petition for cancellation of bail, was dismissed.

Muhammad Sharif v. Muhammad Mir Khan 2004 PCr.LJ 968 and 2008 SCMR 1715 ref.

Muhammad Saddique Khan for Petitioner.

Sanaullah Khan Shamim Gandapur, Dy. A.-G. for the State.

S. Fakhruddin Shah for accused Respondent.

Date of hearing: 19th March, 2010.

PCrLJ 2010 PESHAWAR HIGH COURT 936 #

2010 P Cr. L J 936

[Peshawar]

Before Attaullah Khan, J

RAZA ULLAH----Petitioner

Versus

THE STATE and another----Respondents

Criminal Revision No.23 of 2009, decided on 25th March, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 512 & 87---Suppression of Terrorist Activities (Special Court) Act (XV of 1975), Ss.3 & 5-A(4)(a)---Recording evidence. in absence of accused---Transfer of said statement to the file of the case---Trial Court, in the present case, wanted to transfer the evidence recorded under S.512, Cr.P.C. by the Magistrate-Petitioner applied with the prayer that such evidence be not transferred to the file of the case, but the Trial Court disallowed the same---Validity---Magistrate was not competent to try a scheduled offence under the Suppression of Terrorist Activities (Special Court) Act, 1975 as it was only the Special Judge appointed under S.3 of said Act who could try the same---Evidence recorded under S.512, Cr.P.C. by the Magistrate (not competent to try the case) could not be transferred to the file of the Trial Court---Impliedly the provision of S.512, Cr.P.C. had been substituted under S.5-A of Suppression of Terrorist Activities Act, 1975---Special Court had to issue proclamation under S.87, Cr.P.C. to be published in the national daily newspapers; and thereafter the trial would commence against an absent accused---Evidence recorded by the Magistrate under S.512, Cr.P.C. in a case relating to scheduled offence was not admissible, firstly because he was not competent to try the case pending before the Trial Court (Special Court); and secondly a special provision in that regard was given in the Suppression of Terrorist Activities (Special Court) Act, 1975 itself---Trial Court was not Justified to disallow the application in that respect---Petition was accepted in terms that the proceedings under S.512, Cr.P.C. with regard to the statement of prosecution witnesses, could not be taken into consideration and transferred to the file of case.

Gohar Zaman Khan Kundi for Petitioner.

Sanaullah Shamim, Dy. A.-G. for the State.

Sultan Shaheryar Khan Marwat for Respondent No.2.

Date of hearing: 15th December, 2009.

PCrLJ 2010 PESHAWAR HIGH COURT 1027 #

2010 P Cr. L J 1027

[Peshawar]

Before Attaullah Khan and Muhammad Safdar Khan Sikandri, JJ

FARIDULLAH SHAH---=Petitioner

Versus

Syed NAWAZ SHAH alias GUL KHAN and 3 others----Respondents

Criminal Revision No.15 of 2005, decided on 5th April, 2010.

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

----Ss. 302/324/34---Criminal Procedure Cod (V of 1898), S.439---Qatl-e-amd and attempt to commit qatl-e-amd---Revision against acquittal of accused---Validity---Appraisal of evidence---All accused persons having been acquitted by the Trial Court, petitioner/ complainant had filed revision petition against said acquittal---Deceased was the real brother of complainant/prosecution witness---Complainant who was solitary witness in the case was not only closely related to the deceased, but was also established to be inimical towards accused---Closely related witness must be corroborated by independent evidence, but in the present case no independent corroboration was available to support the statement of said sole eye-witness---No weapon had been recovered in the case and nothing was found in support of ocular version---Complainant/ prosecution witness having become interested witness, his testimony had to be scrutinized with care and caution---Even if medical evidence was believed, even then it would be of no support because if direct evidence was not believed, corroborative evidence was of no avail---Even presence of prosecution witness/ complainant at the spot at the time of occurrence was doubtful---Evidence of the sole prosecution witness was contradicted by the report of Forensic Science Laboratory---Trial Court, in circumstances had rightly acquitted accused, which called for no interference.

PLD 2004 Pesh. 294; 2007 SCMR 1427 and PLD 1962 SC 269 ref.

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

----S. 417---Appeal against acquittal---Different parameters were applied for interference in an appeal against acquittal and appeal against conviction---Presumption of innocence of accused was double in case of acquittal and the court would not interfere, unless it was found that conclusion drawn by the Trial Court was not supported by evidence on record.

2009 SCMR 946 and Ghulam Sikandar v. Mumraiz Khan PLD 1985 SC 11 rel.

Gohar Zaman Kundi for Petitioner.

Sultan Shahryar Khan Marwat for Respondents.

Date of hearing: 5th April, 2010.

PCrLJ 2010 PESHAWAR HIGH COURT 1065 #

2010 P Cr. L J 1065

[Peshawar]

Before Miftah-ud-Din Khan and Mian Fasihul Mulk, JJ

AMJAD IQBAL----Appellant

Versus

THE STATE-Respondent

Criminal Appeal No.232 of 2003, decided on 25th March, 2010.

Penal Code (XLV of 1860)---

---Ss. 302/324/120/34---Criminal Procedure Code (V of 1898), S.417---Qatl-e-amd and attempt to commit qatl-e-amd---Appeal against acquittal---Appraisal of evidence---Police Station concerned was at a distance of 7/8 Kms., but no attempt was made by the complainant to report the matter to Police---Report regarding the occurrence was made after a delay of more than three hours in hospital that too on the reaching of A.S.-I. in the hospital who recorded the report---Possibility of consultation and deliberation could not be ruled out, in circumstances---No doubt three witnesses had supported the prosecution version, but their testimony was not only contradictory on material points, but was also in direct conflict with the site plan and medical evidence---Testimony of eye-witnesses was mutually contradictory on major material points and was also in conflict with medical evidence---In view of such major contradiction, the testimony of eye-witnesses was not found trustworthy and confidence-inspiring by the Trial Court; and observation of the Trial Court in that connection, could not be ignored---Recovery of empties and pistol at the instance and pointation of accused was also found doubtful in view of testimony of Security Supervisor of the factory concerned, who was first to reach the spot, who had stated that he had not seen any empty or blood on the spot---Crime weapon was recovered by the police from the place to which general public had easy access and approach---Motive for offence was also disbelieved by the Trial Court---Testimony of prosecution witnesses in respect of acquitted co-accused was also disbelieved---Under the law accused was presumed to be innocent and in case of acquittal of accused by the Trial Court, double presumption of innocence had to be taken, because the Trial Court had got advantage of observing the conduct, demeanour of witnesses and surrounding facts and circumstances---With such reasons and observations, coupled with the principles of safe dispensation of criminal justice, High Court declined to interfere with the order of acquittal recorded by the Trial Court in respect of accused.?

PLD 2006 SC 273; 2006 SCMR 954; 2001 SCMR 1111; 2005 SCMR 810; 1992 SCMR 305; 2007 SCMR 1519; PLD 1969 Pesh. 355; PLD 1996 SC 1; 2002 SCMR 1986; 2008 PCr.LJ 335; 2003 SCMR 459; PLD 2004 Pesh. 1; 1993 SCMR 585; 2005 PCr.LJ 536; 1983 SCMR 1; and 1993 SCMR 417 ref.

Saeed Akhtar Khan for Appellant.

Abbas Khan Samgeen, D.A.-G. for the State.

M. Zeb Khan Tanoli for Respondents.

Date of hearing: 17th March, 2010.

PCrLJ 2010 PESHAWAR HIGH COURT 1075 #

2010 P Cr. L J 1075

[Peshawar]

Before Liaqat Ali Shah, J

MUNAWAR KHAN----Petitioner

Versus

MEWA KHAN and another----Respondents

Bail Application No.167 of 2010, decided on 2nd April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/148/149---Qatl-e-amd---Bail, grant of---Further inquiry---Complainant did not charge anyone for the commission of offence---Subsequently widow of one of the deceased in her statement under S.164, Cr.P.C. and mother of the other deceased, had stated that accused alongwith others had killed the deceased---Nothing was on record to suggest that any identification test was conducted in respect of accused through said witnesses---If the court was of the opinion that the case appeared to be one which stood covered by subsection (2) of S.497, Cr.P.C. then it would become obligatory on the court to direct the release of accused on bail as he had become entitled to bail as of right and not as a matter of grace---When there was no material of such a nature which constituted reasonable grounds to make one believe that accused was guilty of the offence charged with and when the case stood covered by S.497(2), Cr.P.C. accused was admitted to bail, in circumstances.

2004 PCr.LJ 280; Muhammad Shaheen and others v. Arshad Siddique and 2 others 1997 SCMR 1829 and Safirullah v. The State and another 2003 PCr. LJ 1691 ref.

Zafar Ahmad Awan for Petitioner.

Muhammad Hayat for the State.

Syed Abdul Fayaz for the Complainant.

Date of hearing: 2nd April, 2010.

PCrLJ 2010 PESHAWAR HIGH COURT 1099 #

2010 P Cr. L J 1099

[Peshawar]

Before Mian Fasih-ul-Mulk, J

SHAH MURTAZA HAIDER----Petitioner

Versus

ALI ABBAS----Respondent

Criminal Miscellaneous No.314 of 2009, decided on 4th March, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 497(5) & 498---Penal Code (XLV of 1860), S.489-F---Dishonouring of cheque---Bail, cancellation of, application for---Pre-arrest bail having been granted to accused, complainant had moved for cancellation of bail---Defence of accused was that disputed cheques were stolen and in that behalf accused had already reported the matter to the bank concerned---Each cheque bore two signatures of accused, one under the figure of amount and other under cross "//"---Cheques in question were crossed-cheques favouring the complainant, not only filled by accused but signed on two places---Contention that cheques in question were stolen or lost, did not appeal to mind---No doubt, accused was charged under S.489-F, P.P.C., which offence did not fall within the prohibitory clause of S.497, Cr. P. C., but it was not a rule of universal application---Each case had to be seen through its facts and circumstances---Grant of bail, no doubt was a discretion granted to court, but the exercise of the same could not be arbitrary, fanciful or perverse---Fugitive from law would lose some of his legal rights---Accused remained absconder for long six years, having caused not only financial loss, but mental and psychological agony to the complainant and his family---Long abscondence of accused also had disentitled him to the concession of bail---Bail cancellation application was allowed and impugned bail granting order was set aside.

2007 SCMR 174 ref.

Aurangzeb Asad for Petitioner.

Qazi Muhammad Arshad for Respondent.

Munir Ahmed Bhatti for the State.

Date of hearing: 4th March, 2010.

PCrLJ 2010 PESHAWAR HIGH COURT 1106 #

2010 P Cr. L J 1106

[Peshawar]

Before Mian Fasih-ul-Mulk, J

Capt. (R.) FIDA MUHAMMAD----Petitioner

Versus

THE STATE and others----Respondents

Criminal Revision No.1 of 2010, decided on 5th March, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 369, 465, 466 & 561-A---Penal Code (XLV of 1860), Ss.302/324---Qatl-e-amd and attempt to commit qatl-e-amd---Review---Maintainability---Petition for bail filed by brother of respondent/accused was allowed by the court and accused was directed to be released on bail mainly on the ground of ailment in the light of opinion of Medical Board---Petitioner/complainant had filed review petition against bail granting order contending that bail petition was not decided after observance of proper proceedings under S.465, Cr.P.C. and same was liable to be reviewed and impugned order was to be set aside---Petitioner didnot raise any objection with regard to non-compliance of S.465, Cr.P.C. at trial stage nor agitated that accused was not suffering from such disease---Court passed the order of sine die adjournment on the ground of accused being unable to defend himself, nevertheless declined to release accused on bail, the complainant did not make any of the said objections and it was for the first time that such objections were raised in review petition filed under S. 369, Cr.P.C. read with S.561-A, Cr. P. C. ---Bail petition of accused was decided on the basis of available report of Medical Board and other material regarding ailment of accused; besides his prolong detention wanting revival of his sine die trial case---Release order was tentative in nature and subject to furnishing of heavy surety bonds as well as fulfilment of conditions imposed through it---Provisions of S.369, Cr.P.C. would not accommodate the review petition, which in fact carried the prayer to review of bail granting order; it would also be not open to denial that the petitioner at the relevant time had a remedy available to him in terms of filing a petition before the Supreme Court, in case he was aggrieved of the impugned order---Review was declined in circumstances.

Khan Baig v. State PLD 1984 Lah. 434; Said Rasool v. Muhammad Fazil and another 1999 PCr.LJ 210; Fauqual Bashir v. The State 1997 SCMR 2391; Gulzar Hussain Shah v. Ghulam Murtaza and 4 others PLD 1970 SC 335; PLD 1977 SC 602 and Qamar Mukhtiar Khan v. The State 2007 PCr.LJ 149 ref.

Mushtaq Ali Tahir Kheli for Petitioner.

Saeed Akhtar Khan D.A.-G. for the State.

Date of hearing: 22nd February, 2010.

PCrLJ 2010 PESHAWAR HIGH COURT 1114 #

2010 P Cr. L J 1114

[Peshawar]

Before Liaqat Ali Shah, J

AYESHA JEHANGIR----Petitioner

Versus

THE STATE and another----Respondents

Bail Application No.435 of 2010, decided on 12th April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail, grant of---Further inquiry---Accused lady had not been assigned any role in the commission of actual offence---Whether accused had accompanied the deceased to the house of prosecution witness in order that he be killed and his belonging be taken away, was a question which could be thrashed out during the trial---Said witness in his statement recorded under S.164, Cr.P.C. had stated that when the deceased was pulled to a room, accused went out of the house---Material collected against accused at the most, would show that she had abeted and/or conspired, but to establish the same, the Investigating Agency would have to collect more evidence to justify refusal to grant bail to accused---Accused was entitled to the concession of bail, both on the ground that her case was one of further inquiry and also that she was a woman---Accused was admitted to bail, in circumstances.

PLD 1988 SC 413 and 1988 SCMR 413(sic) at page 414 and 415 ref.

Barrister M. Zahurul Haq for Petitioner.

Ms. Abida Safdar for Respondents.

Hussain Ali for the Complainant.

PCrLJ 2010 PESHAWAR HIGH COURT 1137 #

2010 P Cr. L J 1137

[Peshawar]

Before Attaullah Khan, J

MAMEEZ KHAN----Petitioner

Versus

THE STATE and 2 others----Respondents

Criminal Miscellaneous Quashment Petition No.109 of 2009, decided on 12th April, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 161, 164 & 169---Penal Code (XLV of 1860), Ss.302/324/34---Qatl-e-amd 'end attempt to commit qatl-e-amd---Cancellation of personal bond---Petition for---Plea of alibi---Effect---Petitioner/complainant had filed petition under S.561-A, Cr.P.C. for cancellation of personal bond of respondent/accused whereby he was released and declared innocent by the Investigating Officer--Investigating Officer in the case had recorded statements of six persons who stated that on relevant date accused was not present at place of occurrence as he on said date had gone to another place in connection with Fateha of father of his relative---Investigating Officer in circumstances had believed the statements, recorded under S.161, Cr.P.C. regarding the plea of alibi taken by accused---Investigating Officer could not release an accused on the basis of statements recorded under S.161, Cr.P.C. or under S.164, Cr.P.C., unless such statements were proved to be true by the court of competent jurisdiction---Plea of alibi was required to be proved through exhaustive evidence and not merely on the statements of few persons recorded under S.161, Cr.P.C.---Investigating Officer had acted upon the statements recorded under S.161, Cr.P.C. which was yet to be proved at trial stage and it had no evidentiary value---Evidence in the shape of F.I.R. lodged by the complainant who was eye-witness was not deficient, but was sufficient to connect accused with the commission of offence---Trial Court had the prerogative to declare any evidence sufficient or otherwise---Petition was allowed, impugned action of the Authority was declared null and void being illegal.

Muhammad Bashir v. S.H.O. Police Station Okara Cantt PLD 2007 SC 539; Shah Daraz Khan v. Muhammad Jabbar Khan and 2 others PLD 2008 Pesh. 63 and Eisa Khan v. Nawab Khan and another PLD 2006 Pesh. 165 ref.

Anwar-ul-Haq for Petitioner.

Sanaullah Shamim, D.A.-G. for Respondent.

Shah Hussain Khan for Respondent No.2.

PCrLJ 2010 PESHAWAR HIGH COURT 1163 #

2010 P Cr. L J 1163

[Peshawar]

Before Attaullah Khan and Muhammad Safdar Khan Sikandri, JJ

WAHID-UR-REHMAN----Appellant

Versus

THE STATE and another----Respondents

Criminal Appeal No.14 of 2006, decided on 14th April, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Delay of one hour and twenty-five minutes in lodging the F.I.R., remained unexplained---In the absence of any such explanation, it could be inferred that time spent was consumed in consultation and deliberation---After examination of injuries, deceased who was injured and remained alive for a sufficient time, her statement was not recorded, despite nothing was available in medical evidence that she, in injured position, was incapable of talking---Such position had created some doubt about the manner of occurrence---Versions of eye-witnesses with regard to time and place of occurrence were contradictory with F.I.R.---Prosecution had failed to produce evidence regarding the ownership of crime weapon---None was sure, in circumstances that weapon belonged to the accused---Prosecution witness was a close relative of the deceased, though mere relationship was not a disqualification but it needed corroboration, which was lacking in the' case---Manner of occurrence, lodging of F.I.R. and the time of occurrence was doubtful---Ocular version was full of contradictions, not straightforward and also not corroborated through independent sources which could not be made basis for conviction of accused---Accused, in circumstances, was entitled to the benefit of doubt---Impugned conviction and sentence of accused, were set aside, he was acquitted of the charge and was set at liberty, in circumstances.

Muhammad Younus v. The State 2008 PCr.LJ 507; Ghulam Sikander v. Mamraiz and others PLD 1985 SC 11; Muhammad Arif v. The State 2007 PCr.LJ 432 and 2008 SCMR 707 ref.

Abdul Qayum Qureshi for Appellant.

Farooq Akhtar for the State.

Muhammad Amin present in person.

Date of hearing: 14th April, 2010.

PCrLJ 2010 PESHAWAR HIGH COURT 1319 #

2010 P Cr. L J 1319

[Peshawar]

Before Attaullah Khan, J

REHMAN ULLAH---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No.129 of 2010, decided on 26th April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/148/149---Qatl-e-amd---Bail, refusal of---Contentions raised on behalf of accused, were such which could be agitated and scanned at trial stage and not at bail stage, because if same were discussed and decided, same would amount to deeper appreciation of evidence, which was not permissible---Such discussion would also cause expression of opinion before trial, which was not viewed with appreciation---Objection regarding some facts alleged in the site plan could only be determined when evidence would be re-considered---Seat of injuries was a point relating to evidence---Plea of alibi raised during arguments could be relevant, but that too could be weighed after complete evidence was recorded---Trial had commenced, though it could not be a sole ground for refusal of bail, but was a circumstance to be taken to the contrary---Accused immediately after the occurrence decamped from the spot and was arrested later on---Said period of absconsion had not been explained---F.LR. in the case had been promptly lodged within fifty minutes---Bail of co-accused had been dismissed and case of accused having the same features, could not be distinguished from his case---Accused not deserving the concession of bail, his prayer for bail, was accordingly declined.

Gohar Zaman Kundi and Anwarul Haq for Petitioner.

Sanaullah Shamim Additional Advocate-General for the State.

Shahid Khan Bangesh for Complainant. Date of hearing: 26th April, 2010.

PCrLJ 2010 PESHAWAR HIGH COURT 1324 #

2010 P Cr. L J 1324

[Peshawar]

Before Attaullah Khan, J

Mst. AMINA BIBI---Petitioner

Versus

MUHAMMAD AMIN and 2 others---Respondents

Criminal Miscellaneous Bail Cancellation Petitions Nos. 149 and 150 of 2010, decided on 10th May, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/148/149---Qatl-e-amd---Cancellation of bail, application for---Delay of six hours and ten minutes in making the first report, had not been plausibly explained---Record had revealed that initially six persons were charged for committing the offence, but later on more persons were included in the list of accused by the father of the deceased who was husband of the complainant---Statement of eye-witness had disclosed that he was not available on the spot---Record also disclosed that charge had been framed and trial had commenced---Bail, in such circumstances, could not be cancelled normally in order to avoid any adverse comments, which were likely to affect the trial---Even otherwise too strong and exceptional grounds were required for cancellation of bail, which were lacking in the case.

2004 SCMR 231 ref.

Ghulam Hur Khan Baloch for Petitioner.

Muhammad Zahid Khan for Respondents.

Sama Ullah Shamim D.A.-G. for the State.

Date of hearing: 10th May, 2010.

PCrLJ 2010 PESHAWAR HIGH COURT 1330 #

2010 P Cr. L J 1330

[Peshawar]

Before Sher Muhammad Khan, J

GUL BABRAI KHAN---Petitioner

Versus

REHMATULLAH KHAN and another---Respondents

Criminal Miscellaneous Bail Cancellation Petition No. 123 of 2010, decided on 7th May, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/324/34---Qatl-e-amd and attempt to commit qatl-e-amd---Cancellation of bail, application for---No doubt bail once granted by a competent court should not be cancelled in ordinary course, but if the bail granting order was patently illegal, erroneous, factually incorrect and had resulted in miscarriage of justice, then interference of the superior court was always required---In the present case accused remained fugitive from law and waited for the result of trial of his co-accused who faced trial; and it was after the acquittal of co-accused, either he surrendered or was arrested by the Police--Trial Court granted bail to accused on the simple ground that the role attributed to him was similar to that of acquitted co-accused, both were charged for ineffective firing---Such conduct of the absconding accused had never been encouraged by superior courts---Trial of accused was likely to commence in the near future, High Court declined to enter into the merits of the case-In view of prolong absence of accused for more than two years, accused was not entitled to the concession of bail---Order of the lower court releasing accused on bail was against established principles of law, which amounted to encourage fugitive of law by giving him benefit/concession for showing disrespect to law and institutions established under the law---Bail granting order passed by the Trial Court being patently illegal, erroneous, factually incorrect and having resulted in miscarriage of justice, was cancelled by accepting bail cancellation petition.

Jan Muhammad v. The State 1978 SCMR 287; Akhtar Ali v. Azhar Ali Shah and others 1985 SCMR 1166, Atlas Khan v. Mazamullah Khan and other 1989 PCr.LJ 2044; Ibrahim v. Hayat Gul and other 1985 SCMR 382; Sardar v. The State PLD 1979 Pesh. 16; Awal Gul v. Zawar Khan PLD 1985 SC 402; Muhammad Azhar v. Dilawar and others 2009 SCMR 1202; Mst. Noor Habib v. Salim Raza and others 2009 SCMR 786; Muhammad Ahmad Sheikh v. Muhammad Aslam and others 2007 PCr.LJ 1481; Muhammad Akram v. Zahid Iqbal 2008 SCMR 1715; Muhammad Nawaz v. Baitullah and others 2008 PCrLJ 819; Haji Khan Shareen and others v. Siraj 2006 PCr.LJ 212 and Main Dad v. The State 1992 SCMR 1458 ref.

Gohar Zaman Khan Kundi for Petitioner.

Khiyal Muhammad and Sanaullah Khan Gandapur for the State.

Date of hearing: 28th April, 2010.

PCrLJ 2010 PESHAWAR HIGH COURT 1337 #

2010 P Cr. L J 1337

[Peshawar]

Before Attaullah Khan, J

ZAINUDDIN---Petitioner

Versus

FARMAN and another---Respondents

Criminal Miscellaneous No.41 of 2010, decided on 30th April, 2010.

Criminal Procedure Code (V of 1898)---

---Ss. 497(5) & 498---Penal Code (XLV of 1860), S.324/34---Attempt to commit qatl-e-amd---Cancellation of pre-arrest bail, petition for---Trial Court in its impugned order had discussed the site plan, absence of independent witnesses as well as non-corroboration---Impugned order showed that the Investigating Officer did not recover blood from the spot and no empty was recovered---Trial Court had discussed merits of the case in detail, which was not permissible at bail stage and in that way the court below had assumed the role of Trial Court---Normally, the bail granted by the Court of competent jurisdiction was not interfered with unless it was found that same was granted in violation of the established principles for grant of bail---Pre-arrest bail could only be considered when it was proved that involvement of accused in the case was based on mala fide by the prosecution---Principles for grant of bail and cancellation thereof were altogether different from each other---For cancellation of bail, strong and exceptional grounds were required--In the present case the complainant had succeeded in establishing grounds which were strong in nature---Arguments advanced by the complainant related to the deeper appreciation of evidence which could not be taken into consideration at bail stage and were only relevant at trial---Court below, while confirming the pre-arrest bail to accused had committed serious error and miscarriage of justice had been caused while, passing the impugned order---Impugned order of confirming pre-arrest bail to accused, was recalled, in Circumstances.

MLD 2010 Pesh. 24; PLD 2009 SC 440 and 2003 SCMR 68 ref.

Farooq Khan Sokari for Petitioner.

Shah Hussain for Respondent No. 1.

Sanaullah Shamim D.A.-G. for the State.

Date of hearing: 30th April, 2010.

PCrLJ 2010 PESHAWAR HIGH COURT 1342 #

2010 P Cr. L J 1342

[Peshawar]

Before Attaullah Khan, J

MOIN-UD-DIN---Petitioner

Versus

MUHAMMAD YOUNIS KHAN and another---Respondents

Criminal Miscellaneous B.C.A. No.181 of 2010, decided on 7th May, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.496-A/506---Abduction---Bail, cancellation of---Application for---Delay of ten hours in lodging the report to the Police had not been plausibly explained by the complainant, which had brought the case of accused within the ambit of further inquiry entitling him to the concession of bail---For cancellation of bail, strong and exceptional grounds were required to be proved by the complainant---Complainant could not prove that alleged abductee was already married, however, even if alleged Nikah was proved (which was not proved), even then there could be a question of its validity, because on the day of occurrence, the age of the abductee was mentioned to be 12/13 years---Alleged abductee, in circumstances, was minor at that time and she had the right to repudiate the earlier Nikah performed during her minority-Complainant had failed to prove strong and exceptional circumstances required for cancellation of bail granted to accused---No material was available on record to show that either accused had misused the concession of bail or had tampered with the investigation of the case.

Muhammad Imran Khan Gandapur for Petitioner.

PCrLJ 2010 PESHAWAR HIGH COURT 1375 #

2010 P Cr. L J 1375

[Peshawar]

Before Attaullah Khan, J

INAMULLAH---Appellant

Versus

THE STATE and 2 others---Respondents

Criminal Appeal No. 27 of 2010, decided on 10th June, 2010.

Criminal Procedure Code (V of 1898)---

----S. 417---Penal Code (XLV of 1860), S.324/34---Attempt to commit qatl-e-amd--- Appeal against acquittal---Principles---Material contradictions were found in the statements of prosecution witnesses which had reflected that either they were not speaking the truth or occurrence had not taken place in the manner as disclosed by the prosecution---Said contradictions related to the identity of accused in darkness and presence of public on the spot at the time of occurrence and suggested that prosecution witnesses were not present on the spot and had not seen the occurrence---Statements of the injured witnesses had also not been recorded properly---Site plan was prepared on the pointation of the person who had not been examined by the Police or in the court---Material dents existed in the case of prosecution and its evidence was full of doubts---Co-accused was acquitted by Trial Court on the same evidence and said acquittal order had attained finality as no appeal was filed against the order---Case of accused being based on same facts, could not be distinguished therefrom---Evidence in the case was not enough to record conviction of accused---No motive against accused stood proved---No circumstantial evidence was on record and accused had not confessed the guilt---Trial Court had rightly appraised the evidence brought on record and impugned conclusion was based on correct legal footings, which needed no interference by High Court---Principles for deciding appeals against conviction and acquittal were different from each other---Once an accused was acquitted by the competent court of law after facing the agonies of a protracted trial, then he would earn the presumption of double innocence, which could not be disturbed by the appellate court lightly.

2009 SCMR 946; PLD 1985 SC 11 and Azhar Ali v. The State PLD 2010 SC 632 ref.

Muhammad Ismail Alizai for Appellant.

Farooq Akhtar for the State.

Muhammad Karim Anjum Qasuria for Accused/Respondent.

Date of hearing: 10th June, 2010.

PCrLJ 2010 PESHAWAR HIGH COURT 1386 #

2010 P Cr. L J 1386

[Peshawar]

Before Attaullah Khan, J

AKHTAR ALI KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No. 196 of 2010, decided on 28th May, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of. 1860), Ss. 302/324/148/149---Qatl-e-amd---Bail, refusal of---Accused along with other co-accused was directly charged by the complainant for effectively firing at the complainant party with which the two deceased were hit and died on the spot---Charge against accused was duly supported by medical evidence and ocular account---Offence against accused fell within the prohibitory clause of S.497, Cr.P.C.---Alleged plea of alibi about the non-availability of accused at the spot at the relevant time, would be thrashed out by the Trial Court after recording complete evidence---Plea of alibi, if allowed, it would amount to give a clear chit before trial which was not viewed with appreciation by the superior courts---Tentative assessment of materials brought on record reasonably connected accused with the commission of the offence due to which he was not entitled to the concession of bail---Bail was declined.

Gohar Zaman Kundi for Petitioner.

Sanaullah Shamim D.A.-G. for the State.

Fakhruddin Shah for the Complainant.

Date of hearing: 28th May, 2010.

PCrLJ 2010 PESHAWAR HIGH COURT 1448 #

2010 P Cr. L J 1448

[Peshawar]

Before Attaullah Khan, J

ZIA-UD-DIN---Applicant

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Application No.162 of 2010, decided on 10th May, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail, grant of---Record had revealed that nobody was charged by the complainant and unknown accused were charged---Complainant, later on, in his statement under S. 164, Cr.P.C., charged the accused---Such subsequent charge by the complainant which was based on suspicion was to be dealt with at the trial stage---Complainant was not sure about the real culprit---Co-accused had been released on bail, though on compromise, but his case was not distinguishable from that of accused as both of them had been assigned the same role---Accused was entitled to bail on the principle of consistency---No source of information was given by the complainant as to who informed him about the murder of his brother by accused---No direct evidence was available to connect accused with the commission of the offence---Accused was admitted to bail, in circumstances.

Anwarul Haq for Applicant.

Sanullah Shamim D.A.-G. for the State.

Jahanzeb Ahmed Chughtai for the Complainant.

Date of hearing: 10th May, 2010.

PCrLJ 2010 PESHAWAR HIGH COURT 1452 #

2010 P Cr. L J 1452

[Peshawar]

Before Attaullah Khan, J

ABDUR RASHID---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Quashment Petition No. 50 of 2010, decided on 13th May, 2010.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), S.324/34---Attempt to commit qatl-e-amd---Quashing of F.I.R.---Petition for---Petitioner had sought quashing of F.I.R. contending that case was a counterblast to a murder case in which brother of the petitioner was done to death by son and grandson of the respondent---Petitioner had also raised plea of alibi contending that at the relevant time he was away for hunting---Plea of alibi raised by the petitioner could not be taken into consideration at the present stage and it could be adjudicated upon during trial and so was the opinion of Investigating Officer---Opinion of the Investigating Officer that case was counterblast to murder case, could not be made the reason for quashing of F.I. R. because it was mere opinion which was not binding on the court---Eye-witnesses were required to be examined in the Trial Court, whereafter final opinion could be formed about guilt or otherwise of accused which was the job of the Trial Court and not of High Court---Case being not fit for quashing of F.I.R., both cases were directed to be tried by the Trial Court and decided on merits.

Izzat Khan v. Muhammad Iqbal and another 2010 PCr.LJ 558 ref.

Allah Nawaz for Petitioners.

Nemo for Respondents.

Date of hearing: 13th May, 2010.

PCrLJ 2010 PESHAWAR HIGH COURT 1463 #

2010 P Cr. L J 1463

[Peshawar]

Before Attaullah Khan, J

NAWAB KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No. 174 of 2010, decided on 17th May, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal. Code (XLV of 1860), Ss.302/324/34---Explosive Substances Act (XI of 1908), Ss.3/4---Qatl-e-amd and attempt to commit qatl-e-amd---Bail, refusal of---Submissions of counsel for accused like plea of alibi and contradiction in the medical and other evidence, were related to the trial and deeply touched the merits of the case which could not be taken into consideration at bail stage, because it would amount to deep appreciation of evidence which was not permissible under the law---F.I.R. was registered within forty-five minutes of the occurrence and there was no delay in making the first report, which prima facie had ruled out the false implication of accused---Accused was directly charged for effective firing which resulted in the murder of the deceased---Occurrence was witnessed by eye-witnesses and a hand-grenade was also allegedly used in the offence which reflected the gravity of offence---Bail was declined to accused, in circumstances.

Sanaullah Khan Gandapur for Petitioner.

Khial Muhammad Khan for Respondent.

H. Mirza Ali Khan for Complainant.

Date of hearing: 17th May, 2010.

PCrLJ 2010 PESHAWAR HIGH COURT 1476 #

2010 P Cr. L J 1476

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

ABDULLAH NOOR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 229 of 2010, decided on 3rd June, 2010.

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

----Ss. 9(c) & 46---Possession of narcotics---Appreciation of evidence---Accused had contended that he was simply an employee/the driver of the truck from where charas in question was recovered, whereas same at the relevant time was driven by other person who was resident of the area concerned; and that other person was the original owner of the truck---Accused had alleged that he was unaware of the presence of the narcotics in the truck and that the Police let the said person/owner of the truck to escape and planted the recovery against him/accused---Baseless and afterthought version of accused was belied by a joint statement of elders of the area duly verified by the Political Naib Tehsildar that neither that said other person was resident of that area nor they knew any person of said name---Recovery was made from the fuel tank which was part and parcel of the truck---Omission to make reference to the fuel tank in the framing of charge, would be immaterial and at the most it could be termed as an omission having no bearing on the merits of the case, and the trial on that score could not be vitiated---All witnesses were unanimous in their statements as to the factum of recovery---Contradictions pointed out by the counsel for accused in the statements of prosecution witnesses were not of so importance which could vitiate the factum of recovery---Nothing was on record to suggest that any of the prosecution witnesses had any animus or ill-will with accused which could constitute a reason for his false implication---Question of jurisdiction of the Trial Court would have no bearing on the recovery and the trial of the case was conducted in accordance with the Provincial Government notification issued in consultation with Chief Justice of High Court which had notified all the Sessions Judges and the Additional Sessions Judges in the Province to act as Judges of the Special Courts within the meaning of S.46 of Control of Narcotic Substances Act, 1997---Misdescription of designation of the Court would have no effect on legality of trial when otherwise the court had jurisdiction to try the same---Appeal was dismissed.

Mst. Iqbal Bibi v. The State 2000 PCr.LJ 1812; Adil Hussain v. The State 2003 YLR 190; Gul Raeef Khan v. The State 2008 SCMR 865 and Sher Khan v. The State 2003 MLD 259 ref.

Muhammad Amin Khattak Lachi for Appellant.

F.M. Sabir for the State.

Date of hearing: 3rd June, 2010.

PCrLJ 2010 PESHAWAR HIGH COURT 1485 #

2010 P Cr. L J 1485

[Peshawar]

Before Attaullah Khan, J

ATTAULLAH and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Bail Petition No. 233 of 2010, decided on 21st June, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.336/34---Itlaf-i-Salahiyyati-Udw---Bail, grant of---Further inquiry---Tentative assessment of evidence had shown that one of accused was shown as armed with dagger, while other with Kalashinikov---Injuries sustained by the complainant were blunt which could be the result of danda attributed to absconding accused---No role seemed of accused persons in causing blunt injuries---Had accused persons participated, there should have been a bullet injury or a lacerated wound---Case of accused, in circumstances, was of further inquiry---Accused being entitled to bail, they were allowed bail, in circumstances.

Salimullah Khan Ramazai for Petitioners.

Sanaullah Shamim Gandapur D.A.-G. for the State.

Complainant in person.

Date of hearing: 21st June, 2010.

PCrLJ 2010 PESHAWAR HIGH COURT 1747 #

2010 P Cr. L J 1747

[Peshawar]

Before Attaullah Khan, J

SHAUKAT HUSSAIN SHAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Bail Petition No. 292 of 2010, decided on 2nd August, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497-Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotics---Bail, refusal of---Accused was apprehended on the spot along with 400 grams heroin in presence of witnesses---Report of sample sent for chemical analysis to the Laboratory was in positive---Copies of F. I. Rs. available on file revealed that accused was a habitual offender and dealt in the business of narcotics---Accused though in said cases had not been convicted, but it would not make his case arguable for the purposes of bail, because the registration of so many cases, had supported the plea that accused was a habitual offender dealing in the business of narcotics---Section 103, Cr.P.C. having been excluded from the provisions of Control of Narcotic Substances Act, 1997, there was no need of association of any public person with the process of recovery in such-like cases---Tentative assessment of the material brought on record, reasonably connected accused with the commission of offence which fell within the prohibitory clause of S.497, Cr.P.C. disentitling him to concession of bail---Bail was declined to accused.

Haji Muhammad Shakeel for Petitioner.

Sanaullah Shamim Gandapur, Deputy Attorney-General for the State.

Date of hearing: 2nd August, 2010.

PCrLJ 2010 PESHAWAR HIGH COURT 1780 #

2010 P Cr. L J 1780

[Peshawar]

Before Attaullah Khan, J

SULEMAN BAHADUR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No. 286 of 2010, decided on 2nd August 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324---Attempt to commit qatl-e-amd---Bail, refusal of---Accused remained fugitive from law for a considerable long period of about one year and four months, which had not been plausibly explained which indicated towards guilt of accused---Accused was charged for single injury caused to the complainant and the charge was supported by ocular account---Record further revealed that accused was hardened, dangerous and desperate criminal, because besides the present charge, he was charged in other three F.I.Rs.---Occurrence being of a daylight, no question of mistaken identity would arise---Accused, was declined bail, in circumstances.

Anwar-ul-Haq for Petitioner.

Saleemullah Ranazai for the Complainant.

Sanaullah Shamim, D.A.-G. for the State.

Date of hearing: 2nd August, 2010.

PCrLJ 2010 PESHAWAR HIGH COURT 1806 #

2010 P Cr. L J 1806

[Peshawar]

Before Attaullah Khan, J

ZAHIR NAWAZ and 2 others---Petitioners

Versus

NAZIA BIBI and 2 others---Respondents

Criminal Bail Petition No. 289 of 2010, decided on 3rd August, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.452/354---House-trespassing and assault---Bail, grant of---No independent witness was available to corroborate the prosecution version---Mere assault of women was not sufficient to bring the case within the ambit of S.454, P.P.C., but there were other circumstances to show that accused had the requisite knowledge or intention---Prosecution story was also not appealing because it would be a rare case when a father in the company of his two sons would try to outrage the modesty of a woman---No unimpeachable and independent evidence was available on record to support the prosecution version---F.I.R. was lodged with an unexplained and inordinate delay of about five hours---Mere abscondence of accused was no bar in the way of granting bail to accused---Investigation in the case was complete and accused were no more required for the purpose---Punishment under S.354, P.P.C. was upto two years and under S.452, P.P.C. upto seven years---Case of accused, in circumstances, did not fall under the prohibitory clause of S.497, Cr.P.C.-Accused were admitted to bail, in circumstances.

Sh. Iftikharul Haq for Petitioners.

Sanaullah Shamim, D.A.-G. for the State.

Date of hearing: 3rd August, 2010.

PCrLJ 2010 PESHAWAR HIGH COURT 1920 #

2010 P Cr. L J 1920

[Peshawar]

Before Attaullah Khan, J

Haji MUHAMMAD ZAMAN---Applicant

Versus

THE STATE and another---Respondents

Miscellaneous Bail Application No. 247 of 2010, decided on 2nd August, 2010.

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

----Ss. 497 & 498---Grant/refusal of pre-arrest and post-arrest bail--Principles.

1996 SCMR 71 ref.

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

----Ss. 497(5) & 498---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Cancellation of pre-arrest bail, petition for---Points prevailing with the Trial Court for confirmation of pre-arrest bail, were that only one empty was recovered; statement of Imam Masjid as witness; opinion of Investigating Officer; no bullet mark was found near the wall; old age of accused and the medical report---Said grounds were to be taken into consideration for grant of post-arrest bail and not during bail before-arrest---Reasons for grant of pre-arrest bail did not include mala fide on the part of complainant or police and false involvement and humiliation of accused---Impugned order, in circumstances, was liable to be set aside---Tentative assessment of the material, prima facie, connected accused with the commission of offence which fell within the prohibitory clause of S.497, Cr.P.C.---Pre-arrest bail granted to accused through the impugned order by the Trial Court, was cancelled, in circumstances.

2010 YLR 670 ref.

Asad Aziz for Applicant.

Rashidullah Kundi assisted by Sh. Iftikharul Haq, D.A.-G for the State.

Date of hearing: 2nd August, 2010.

PCrLJ 2010 PESHAWAR HIGH COURT 1963 #

2010 P Cr. L J 1963

[Peshawar]

Before Syed Sajjad Hussain Shah and Yahya Afridi, JJ

Messrs PARKE DAVIS & CO. LTD. and another---Appellants

Versus

PROVINCIAL DRUG INSPECTOR and another---Respondents

Criminal Appeal No. 120 of 2008, decided on 2nd July, 2010.

Drugs Act (XXXI of 1976)---

----Ss. 16, 17, 22, 23, 31(7-A) & 34---Manufacturing substandard medicines---Appreciation of evidence---Provincial Drug Inspector, while inspecting the premises of a retailer running its business in medicines, took drug in question into his custody for its test and analysis---Government Analyst, Drugs Testing Laboratory and National Institute of Health to which sample was sent for analysis, reported the drug in question as substandard'---On the basis of such report, Inspector filed complaint before the Drugs Court after obtaining sanction from Provincial Quality Control Board---Trial Court after considering the evidence produced by the prosecution, came to the conclusion that the prosecution had proved its case---Accused company was sentenced to fine of Rs.50,000 and co-accused was fined Rs.30,000 only---Report of National Institute of Health was prepared by a person who was competent to sign the same---Both Institutions which analysed the sample, were in consonance to declare the drug in question to be substandard---Sentence awarded on the appellants/accused being fines only and that too amounting to Rs.50,000 wasinsufficient'---Only one Director of the appellant-company had been charged by prosecution for the offence---Inaction of Authorities for not proceeding against `every Director' as was mandatory by law was highly regrettable---Non-prosecution of every director of the company and non filing of appeal against the company as provided under S.31(7-A) of the Drugs Act, 1976, did not reflect well on the Authorities---Conviction and sentence awarded by the Trial Court based on clear evidence produced by the prosecution was upheld and appeal of accused, was dismissed.

Hafiz Khalil v. The State 1996 PCr.LJ 1183; State v. Iqbal Ahmad Khan 1996 SCMR 767; State v. Messrs Apro Nicholas Pakistan Ltd. 1991 PCr.LJ 1363; Khalid Mansoor v. The State 1985 PCr.LJ 281; Muhammad Amin Khan v. Muhammad Siddique 1984 PCr.LJ 1580; Basharat Ali v. Director Excise and Taxation 1987 SCMR 1543; Shahid Habib v. State 2000 PCr.LJ 808 and Niaz Muhammad v. Mian Fazal Raqib PLD 1974 SC 134 ref.

(b) Interpretation of statutes---

----When the words in the statute were clear, the ordinary and simple meaning of the words used in the section, had to be applied in interpreting the same---Nothing was to be imported to restrict or expand the meaning of clear words.

Abid Hameed Puri and Shaheen Shah for Appellants.

F.M. Sabir for the State.

Date of hearing: 8th June, 2008.

PCrLJ 2010 PESHAWAR HIGH COURT 1980 #

2010 P Cr. L J 1980

[Peshawar]

Before Dost Muhammad Khan and Abdul Aziz Kundi, JJ

Syed ZAFFAR alias QAZI ZAFFAR AFRIDI and 4 others---Petitioners

Versus

PAKISTAN through Secretary Interior and 2 others---Respondents

Writ Petition No. 1237 of 2006, decided on 17th December, 2009.

Prevention of Smuggling Act (XII of 1977)---

----Ss. 30, 31 & 32---Control of Narcotic Substances Act (XXV of 1997), S.9---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3, 4 & 9---Constitution of Pakistan (1973), Art.199--Constitutional petition---Forfeiture property allegedly acquired by money of snuggling---Scope---Petitioners had impugned order whereby their property was. forfeited/confiscated on allegation that same was acquired by the petitioners by money of smuggling---Petitioners previously were booked for crimes under Arts.3, 4 & 9 of Prohibition (Enforcement of Hadd) Order, 1979 and under S.9 of Control of Narcotic Substances Act, 1997, but were finally acquitted from said charges---Subsequently property in question belonging to the petitioners was forfeited/confiscated on the allegation that same was acquired by the petitioners by money of smuggling---Case of the petitioners was that since they were honourably acquitted in all criminal cases registered against them, on the same allegations complaint under S.31 of Prevention of Smuggling Act, 1977 neither could have been filed nor entertained and adjudicated upon by courts below---Forfeiture of the property could be ordered under Ss.19 & 39 of Control of Narcotic Substances Act, 1997 by special court only when accused was convicted whereas the petitioners were not convicted, but were honourably acquitted---Petitioners were not charged or convicted for any offence of smuggling during the period they acquired property in question---Complainant had failed to prove the allegations against the petitioners, whereas the petitioners had sufficiently discharged their onus and proved that the property in question was acquired not as result of income derived from smuggling---Except statement of the complainant, no evidence worth the name had been produced or brought on the record by the complainant---On the basis of mere allegations levelled in the complaint under S.31 of Prevention of Smuggling Act, 1977, a citizen could not be deprived of his property---Impugned judgments were set at naught, in circumstances.

Muhammad Ashraf and others v. the State 1995 SCMR 626; Hort Khan and 6 others v. N.I.R.C. Islamabad and 2 others PLD 1977 Kar.145; Shadi Khan v. The State through Advocate-General of Balochistan, Quetta 2002 SCMR 273; State through Collector, Customs v. Naseem Ahmad Butt and others 2001 SCMR 1083 and The State v. Anwar Khattak and others PLD 1980 FSC 62 ref.

Yahya Afridi for Petitioners.

Tariq Khan Kakar for Respondents.

Date of hearing: 29th September, 2009.

Quetta High Court Balochistan

PCrLJ 2010 QUETTA HIGH COURT BALOCHISTAN 11 #

2010 P Cr. L J 11

[Quetta]

Before Akhtar Zaman Malghani and Muhammad Nadir Khan, JJ

ALI KHAN and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.(S)64, 65 and Murder Reference No.16 of 2006, decided on 11th May, 2009.

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

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---Presence of complainant along with the deceased at the spot at the relevant time could not be doubted, who lived near the place of occurrence and lodged the F.I.R. promptly at the police station---Another independent witness relating to both the parties, whose presence at the scene of occurrence was established, had corroborated the complainant---Recovery of fire-arms used in the offence by the police officials without associating private persons was not defective, as recovery was made at the disclosure and pointation of accused within the meaning of Art.40, Qanun-e-Shahadat, 1984, and provisions of S.103, Cr.P.C. were not attracted in such cases---Contradictions of trivial nature in ocular evidence would not damage its intrinsic value when eye-witnesses had corroborated each other on all material particulars---Crime-empties secured from the spot were found by the Expert to have been fired from the fire-arms recovered at the instance of accused---Motive for the occurrence was not denied---Medical evidence had further corroborated the ocular testimony---Defence version was neither natural nor probable---Conviction of both accused and sentence of imprisonment for life awarded to one accused were upheld in circumstances---Both the accused had committed the offence in furtherance of common intention and their participation in the crime was equal and undistinguishable---Trial Court had sentenced one accused to death and the other accused to imprisonment for life considering his age of 60 years as a mitigating circumstance, which was not correct---However, keeping in view rule of consistency sentence of death of the said accused was also reduced to imprisonment for life---Appeals were disposed of accordingly.

1996 SCMR 777; 1998 SCMR 25; 1997 MLD 1463 and 2001 SCMR 424 distinguished.

PLD 1980 SC 185; 1995 SCMR 614; 1971 SCMR 412; PLD 2001 SC 90 and PLD 1970 SC 447 ref.

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

----S. 302(b)---Appreciation of evidence---Site plan---Evidentiary value---Scope---Site plan being not a substantive piece of evidence cannot be used to contradict the witnesses, nor on the basis thereof straightforward and confidence-inspiring evidence of any witness can be discarded, particularly when the same was not shown to have been prepared on the pointation of a witness.?

PLD 1980 SC 185 ref.

----S. 103---Qanun-e-Shahadat (10 of 1984), Art.40---Recovery in presence of two respectable inhabitants of the locality---Application and scope of S.103, Cr.P.C.---Provisions of S.103, Cr.P.C. apply to a case where police conducts search of a house/place to recover an article for which search is to be made and not to a case where anything is to be discovered in consequence of the information given by or on the pointation of the accused---Recovery to be made on the pointation of the accused is relevant under Art.40 of Qanun-e-Shahadat, 1984---Association of two respectable inhabitants of the locality is not required in a case where the accused himself leads the police to a particular place and gets the article recovered.?

1995 SCMR 614 ref.

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

----S. 302(b)---Site plan---Evidentiary value---Site plan loses its evidentiary value if it is not prepared on the pointation of a witness.

2001 SCMR 424 ref.

----S. 302(b)---Sentence---Discretion of Court in offence of murder is restricted to the choice of alternative sentences of death or imprisonment for life---Death is the normal sentence unless mitigating circumstances exist to justify the award of lesser punishment.?

PLD 1970 SC 447 ref.

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

----S. 302(b)-Sentence---Mitigating circumstance---Old-age---Old-age has never been considered to be a mitigating circumstance to withhold normal penalty of death.?

PLD 2001 SC 90 ref.

Kamran Murtaza for Appellant (in Criminal Appeal No. (S)64 of 2006).

Miss Shahzia Abbasi for the State (in Criminal Appeal No. (S)64 of 2006).

Miss Shahzia Abbasi for the State (in Murder Reference No.(S)16 of 2006).

Kamran Murtaza for Respondent (in Murder Reference No.(S)16 of 2006).

Kamran Murtaza for Petitioner (in Criminal Appeal No.(S)65 of 2006).

Miss Shahzia Abbasi for the State (in Criminal Appeal No.(S)65 of 2006)

Date of hearing: 16th April, 2009.

PCrLJ 2010 QUETTA HIGH COURT BALOCHISTAN 634 #

2010 P Cr. L J 634

[Quetta]

Before Qazi Faez Isa, C.J. and Ghulam Mustafa Mengal, J

SHAFI MUHAMMAD and another----Appellants

Versus

THE STATE and another----Respondents

Criminal Appeal No.(S)51 and Murder Reference No.(S)12 of 2007, decided on 13th October, 2009.

Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), S.345---Qatl-i-amd---Compromise---During pendency of appeal legal heirs of the deceased had compromised with the accused and voluntarily granted "Afw" to him in the name of Almighty Allah---Nothing existed on record to impede the process of compromise or persuade to punish the accused by way of Tazir under S.311, P.P.C.---Compromise arrived at by the parties was consequently accepted and the accused was acquitted accordingly.

Rauf Hashmi for Appellant (in Criminal Appeal No.(S)51 of 2007).

Nouman Shafique for the State (in Criminal Appeal No.(S)51 of 2007).

H. Shakeel Ahmed for the Complainant (in Criminal Appeal No.(S)51 of 2007.

Nouman Shafique for the State (in Murder Reference No.(S)12 of 2007).

Rauf Hashmi for Convict Shafi Muhammad (in Murder Reference No.S(12) of 2007).

H. Shakeel Ahmed for the Complainant (in Murder Reference No.(S)12 of 2007).

Date of hearing: 28th September, 2009.

PCrLJ 2010 QUETTA HIGH COURT BALOCHISTAN 642 #

2010 P Cr. L J 642

[Quetta]

Before Muhammad Noor Meskanzai, J

RAHIM BAKHSH----Petitioner

Versus

THE STATE----Respondent

Criminal Revision Petitions Nos.(S)56 and (S)57 of 2009, decided on 30th October, 2009.

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

----Ss. 353 & 337-H(2)---West Pakistan Arms Ordinance (XX of 1965), S.13(e)---Assault or criminal force to deter public servant from discharge of his duty, causing hurt by rash or negligent act and keeping in possession unlicensed arm---Appreciation of evidence---Enmity of accused with police officials particularly the S.H.O. was not only established rather was admitted on record---Mala fides on the part of prosecution were also apparent on the face of record---Prosecution witnesses had improved their previous statements at the trial---Non-sealing of the recovered articles at the spot and non-sending of the pistol of accused to the Ballistic Expert for knowing its functional condition, had uprooted the entire prosecution case---Despite availability of private persons at the site, none of them was associated with the proceedings and impartial evidence was not collected by the police---Failure of the prosecution to produce entry in Roznamcha in Court being an inherent legal defect, had further damaged its case---Accused was acquitted in circumstances.

1995 MLD 1532; 1992 PCr.LJ 1287; Abdul Sattar and others v. The State 2002 PCr.LJ 51; Fareed Ahmed Langra v. The State 1998 PCr.LJ 1368; Qolandaro's case 1997 MLD 1632; Loung through Superintendent Central Prison, Hyderabad v. The State 1999 PCr.LJ 595; Sajjan v. The State 1998 PCr.LJ 1399 and 2002 PCr.LJ 450 ref.

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

----Ss. 353 & 337-H(2)---West Pakistan Arms Ordinance (XX of 1965), S.13(e)---Assault or criminal force to deter public servant from discharge of his duty and causing hurt by rash or negligent act---Appreciation of evidence-Non-production of "Roznamcha Entry" in Court---Effect---Lapse of prosecution to produce "Roznamcha Entry" in Court to prove that the police in fact proceeded to the place of scene to recover weapons, cuts at the roots of its case making the entire episode doubtful.

Abdul Sattar and others v. The State PCr.LJ 2002 Kar. 51; Fareed Ahmed Langra v. The State 1998 PCr.LJ 1368 and Qalandaro's case 1997 MLD 1632 ref.

----S. 13(d)---Keeping in possession unlicensed arm---Appreciation of evidence---Non-sealing the recovered weapons at the spot and non-sending the same to Ballistic Expert for opinion---Effect---Conviction under section 13(d) of the West Pakistan Arms Ordinance, 1965, cannot be maintained unless the weapons recovered from the accused were sealed at the spot and the opinion of Forensic/Ballistic Expert was produced on record to prove that the same were in fact functional and fell within the category of weapons exclusively triable by the Special Court, STA.

Loung through Superintendent Central Prison, Hyderabad v. The State 1999 PCr.LJ 595 and Sajjan v. The State 1998 PCr.LJ 1399 ref.

Muhammad Riaz Ahmed for Petitioner.

Miss Shahida Parveen for the State.

Date of hearing: 9th October, 2009.

PCrLJ 2010 QUETTA HIGH COURT BALOCHISTAN 658 #

2010 P Cr. L J 658

[Quetta]

Before Jamal Khan Mandokhail, J

HABIB-UR-REHMAN----Applicant

Versus

THE STATE----Respondent

Criminal Appeal No.103 of 2008 and C.M.A. No.14 of 2009, decided on 10th November, 2009.

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

----S. 561-A---West Pakistan Arms Ordinance (XX of 1965), S.13(e)---Keeping in possession unlicensed arm and ammunition---Rectification of judgment---High Court, while reducing the sentence of three years' R.I. of accused to the imprisonment already undergone had said nothing in the impugned judgment in respect of sentence of fine of Rs.50,000 imposed upon him by Trial Court---Rectification of the judgment was sought by accused---Admittedly the impugned order was silent about the sentence of fine of Rs.50,000 awarded to accused---Section 561-A Cr. P. C. had empowered the High Court to rectify or review its own order, if the relevant fact had mistakenly been not recorded in the same, which had affected the right of a party--Impugned order was, consequently, rectified and the fine of Rs.50,000 awarded to accused by Trial Court was reduced to that of Rs.5000---Since the amount of Rs.50,000 had already been deposited by the accused with Government Treasury, the amount of Rs.45,000 was directed to be refunded to him---Petition was disposed of accordingly.

2000 PCr.LJ 1516 rel.

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

----Ss. 561-A & 396---Inherent power of High Court---Review---Sanctity of finality is, no doubt, attached to a judgment passed by a criminal Court by virtue of section 369 Cr.P.C., but High Court under its inherent power can review or recall its judgment or order if found to have been passed without jurisdiction, without adjudication on merits, in violation of any law or obtained by playing fraud on the Court.?

2000 PCr.LJ 1516 ref.

Muhammad Qahir Shah for Applicant.

Zahoor Ahmed Shahwani, P.-G.

PCrLJ 2010 QUETTA HIGH COURT BALOCHISTAN 666 #

2010 P Cr. L J 666

[Quetta]

Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ

Malik MUHAMMAD AKRAM----Appellant

Versus

MUHAMMAD QAHIR and another----Respondents

Criminal Acquittal Appeal No.68 of 2008, decided on 22nd February, 2010.

Illegal Dispossession Act (XI of 2005)---

----S. 3---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal---Complaint filed by the appellant against the accused respondent had been dismissed by Trial Court holding that "no direct evidence was available on record to show that the accused, who was a tenant under the complainant appellant on the land in question, had delivered possession of the same to the complainant"---Validity---Held, in civil litigation between the parties all the Courts right from the Civil Judge upto the Supreme Court had held that the possession of accused over the land in dispute was illegal and that earlier the possession of the land had been handed over to the complainant, but again occupying the land by the accused amounted to illegal occupation with the view to grab the property illegally without having any entitlement---Complainant through oral evidence comprising of ten witnesses and the aforesaid judgments adduced in his complaint, had fully proved his dispossession from the land by the accused---Trial Court had not considered the verdicts of competent Courts of law as well as evidence and material available on record, which amounted to misappreciation and non-appreciation of evidence and the same' was an illegality and irregularity---Impugned judgment of acquittal was consequently set aside---Accused was convicted under S.3 of the Illegal Dispossession Act, 2005, and sentenced to one year's R.I. with a fine of Rs.10,000 or in default of payment of fine to suffer three months S.I. further, in circumstances---Police Authorities were directed to put the complainant in possession of the land in question after dispossessing the accused therefrom within a week---Appeal was accepted accordingly.

Mujeeb Ahmed Hashmi for Appellant.

Kamran Murtaza for Respondent No.1.

Date of hearing: 16th November, 2009.

PCrLJ 2010 QUETTA HIGH COURT BALOCHISTAN 1042 #

2010 P Cr. L J 1042

[Quetta]

Before Ghulam Mustafa Mengal and Jamal Khan Mandokhail, JJ

ADALAT KHAN and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.40 of 2008, decided on 15th April, 2010.

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

----Ss. 9(c) & 29---Possession of narcotics---Appreciation of evidence---Both prosecution witnesses were cross-examined at length by the defence counsel, but nothing had been gained in favour of accused---Account furnished by the prosecution witnesses was credible and consistent with each other on all material aspects of the case, with the exception of minor discrepancies which were natural---No material discrepancy or improvement was made by said witnesses---Contention of counsel for accused was that accused were bona fide transporters/driver and cleaner of vehicle and that they had no knowledge about the hiding of illicit Hashish---Neither accused persons disputed the recovery of Hashish from the vehicle being driver and cleaner of the vehicle, nor the same was disputed before the court---Primary duty of the prosecution was to prove its case beyond reasonable doubt and its burden was not shifted under the presumption contained in S.29 of Control of Narcotic Substances Act, 1997---If, however, a plea was taken by accused, it was a statutory burden under S.29 of said Act to be discharged through cogent evidence in order to prove him innocent---Accused, in the present case, had only denied the charge, pleaded innocence and stated that their vehicle was hired by the transport company---Accused had not produced any evidence in their defence which could establish that the alleged bags were loaded in their vehicle by their co-accused---No substance was found in the plea taken by accused persons and plea taken by them in their defence was neither sufficient nor enough to exonerate them from the charge---Accused having failed to discharge the statutory burden, conviction and sentence of accused persons, were upheld and maintained.

Abdul Karim Yousafzai for Appellants.

Rauf Atta, Standing Counsel for the State.

Date of hearing: 10th March, 2010.

PCrLJ 2010 QUETTA HIGH COURT BALOCHISTAN 1082 #

2010 P Cr. L J 1082

[Quetta]

Before Ghulam Mustafa Mengal, J

FATEH MUHAMMAD----Appellant

Versus

THE STATE----Respondent

Criminal Customs Appeal No.6 of 2003, decided on 16th April, 2010.

Customs Act (IV of 1969)---

----Ss. 156(89) & 185-F---Penal Code (XLV of 1860), Ss.468 & 471---Criminal Procedure Code (V of 1898), S.403---Constitution of Pakistan (1973), Art.13(a)---Possessing smuggled goods, forgery and using forged documents as genuine---Double jeopardy---Appreciation of evidence---Sentence, reduction in---Appeal to Special Appellate Tribunal---Appellant/accused was convicted and sentenced and vehicle in question having also been confiscated, accused had filed appeal---Counsel for accused had contended that the challan of accused in the same F.I.R. was the breach of Art.13(a) of the Constitution, as well as in contravention of S.403, Cr.P.C. as the trial of accused would amount to double jeopardy, which was not warranted by law---Accused was convicted and sentenced under S.156(89) of the Customs Act, 1969 and under Ss.468 & 471, P.P.C.---Said provisions of two different statutes/laws had revealed that the offence of smuggling of goods was punishable under the Customs Act, 1969; whereas offences of forgery and using forged documents as genuine was punishable under Ss.468 & 471, P.P.C.---Said offences were not the same, in circumstances---Second trial would be only barred when offence was the same and in case offences were different/distinct, then accused could be tried by the two different courts under two different enactments on the basis of common set of facts and trial would not be barred---Contention of counsel for accused having no force was repelled---Accused was not tried for the same offence, but for the different and distinct offences in different Courts; trial of accused, in circumstances was not barred under S.403, Cr.P.C. or on the principle of double jeopardy---Accused was arrested on 7-4-2003 and since then he was facing the hardship of trial---Nothing was on record to indicate that accused was habitual offender or was ever involved previously in the case of smuggling---Sentence of accused was reduced to the period already undergone by him.

Obaidullah Qureshi for Appellant.

Mumtaz Yousaf, Standing Counsel for the State.

Date of hearing: 14th December, 2009.

PCrLJ 2010 QUETTA HIGH COURT BALOCHISTAN 1145 #

2010 P Cr. L J 1145

[Quetta]

Before Ghulam Mustafa Mengal and Jamal Khan Mandokhail, JJ

KHAYAL MUHAMMAD----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.39 of 2008, decided on 15th April, 2010.

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

----Ss. 9(c), 32(2), proviso & S.33---Possessing narcotics---Confiscation of vehicle---Appellant/owner of the vehicle in question was not put on notice as to why the vehicle be not confiscated---Proviso to S.32(2) of Contra; of Narcotic Substances Act, 1997 had laid down prerequisite conditions that no vehicle, vessel or other conveyance would be liable to confiscation, unless it was proved that the owner thereof knew that the offence was being or was to be committed; in fact knowledge was a point of fact and was to be adjudicated in accordance with law in a normal procedure of dispensation of justice by putting the owner on notice and not necessarily the accused---No effort was made to ascertain and determine the question that appellant knew that the offence was being or was to be committed---All those procedural pre-requisite had not been observed by the Trial Court and order had been passed for confiscation of vehicle in question---Requirements of S.32 or 33 of the Control of Narcotic Substances Act, 1997 had not been followed and observed in circumstances---In view of illegality committed by the Trial Court, impugned order was set aside to the extent of confiscation of vehicle, in question and matter was remanded to the Trial Court for proceeding in accordance with law and decision of the case.

Abdul Karim Yousafzai for Appellant.

Rauf Atta, Standing Counsel for the State.

Date of hearing: 10th March, 2010.

PCrLJ 2010 QUETTA HIGH COURT BALOCHISTAN 1182 #

2010 P Cr. L J 1182

[Quetta]

Before Mrs. Syeda Tahira Safdar J

ABDUL WALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 120 of 2009, decided on 3rd June, 2010.

Penal Code (XLV of 1860)---

----S. 392---Robbery---Appreciation of evidence---Occurrence was reported to police on the same day and F.I.R. was registered against unknown persons---Complainant asserted that he could recognize two of the assailants---Accused was arrested after a year and a half of the occurrence on the pointation of the complainant---Accused contended that no identification parade was held after his arrest---Validity---Accused was arrested on the pointation of complainant, so there was no need of holding identification parade to identify the accused who had failed to point out any specific piece of evidence which was not considered by the Trial Court---Three eye-witnesses had identified the accused as one of the culprits---Trial Court had properly appreciated the evidence and committed no illegality or irregularity---Appeal was dismissed in circumstances.

Obaidullah Quresh for Appellant.

Miss Saima Jamal for the State.

Date of hearing: 22nd December, 2009.

PCrLJ 2010 QUETTA HIGH COURT BALOCHISTAN 1204 #

2010 P Cr. L J 1204

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

ABDUL GHAFFAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 58 of 2009, decided on 26th February, 2010.

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

----S. 13(d)(e)---Criminal Procedure Code (V of 1898), S.423(1)(b)---Possessing unlicensed arms and ammunition---Appreciation of evidence---Accused had not pressed his appeal on merits, but had prayed for moderate reduction in the sentence---Under S.423(1)(b), Cr.P.C., Appellate Court had the power to reduce the sentence without altering the findings of the Trial Court---In the present case appellant had raised contention that the evidence had not been appreciated by the Trial Court by taking one sided view and contradictions were not considered, nor benefits of the same were extended in his favour---Despite said assertions, no specification of such alleged contradictions was provided which were required to be considered---Apart from the case, three other criminal cases of Harabah, attempt to commit qatl-e-amd and assault were registered against accused and weapon was allegedly recovered from custody of accused, seemed to be the crime weapon used in commission of said criminal cases---Nothing was available on record as to what was the fate of said other cases against accused and there was nothing on record that accused had been acquitted of the cases pertaining to major offences---No grounds were available, in circumstances, to take a lenient view and while exercising powers under S.423, Cr.P.C. the sentence awarded to accused be reduced---Appeal was dismissed.

Wali Khan Nasir for Appellant.

Miss Saima Jamal for the State.

Date of hearing: 30th October, 2009.

PCrLJ 2010 QUETTA HIGH COURT BALOCHISTAN 1308 #

2010 P Cr. L J 1308

[Quetta]

Before Qazi Faez Isa, C.J. and Mrs. Syeda Tahira Safdar, J

Haji ABDULLAH---Appellant

Versus

KHURASAN and 3 others---Respondents

Criminal Acquittal Appeal No.72 of 2009, decided on 18th May, 2010.

Penal Code (XLV of 1860)---

----S. 381-A---Criminal Procedure Code (V of 1898), Ss.249-A & 417(2-A)---Theft---Appeal against acquittal---Appreciation of evidence---Appellant/complainant had sought remand of case to the Trial Court for deciding same on merits, setting aside impugned order whereby the Trial Court while accepting application under S.249-A, Cr.P.C. had acquitted accused of the charge---Trial Court had acquitted accused persons on various grounds and points noted and conclusion drawn by the Trial Court, were based on material present on the record---Inordinate delay in reporting matter was unexplained and case of prosecution was doubtful---Impugned order was well-reasoned and the Trial Court had come to the right conclusion---Appellant/complainant had failed to point out any illegality or irregularity in the impugned order, on account of which any interference was required therein---On basis of available evidence no conviction could result---Remand of case was declined in circumstances.

Gull Hassan for Appellant.

Nemo for Respondents.

PCrLJ 2010 QUETTA HIGH COURT BALOCHISTAN 1326 #

2010 P Cr. L J 1326

[Quetta]

Before Ghulam Mustafa Mengal and Jamal Khan Mandokhail, JJ

Haji HASSAN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 359 of 2008, decided on 20th November, 2009.

Penal Code (XLV of 1860)---

----S. 302/34---Qatl-e-amd---Appreciation of evidence---Complainant and other prosecution witness being not the eye-witnesses, their evidence could not be believed to have intensive value---Extra judicial confession of co-accused before prosecution witness, was not far from doubt as it was not corroborated by another strong piece of evidence---Circumstantial evidence brought on record by the prosecution did not lead to the conclusion that each chain of incident was linked with the other to prove the guilt of accused and prosecution evidence was not consistent---Unnatural death of deceased was not disputed by the defence in cross-examination---Prosecution had failed to prove the guilt of accused person beyond reasonable doubt---Impugned judgment being not sustainable in the eye of law, was set aside and accused were acquitted from the charge levelled against them and were set free.

Wazir Muhammad and another v. The State 2005 SCMR 277 ref.

Ehsan ul Haq and Abdul Nasir Kakar for Appellants.

Zahoor Ahmed Shahwani P.G. for the State.

Date of hearing: 5th November, 2009.

Supreme Court Azad Kashmir

PCrLJ 2010 SUPREME COURT AZAD KASHMIR 1365 #

2010 P Cr. L J 1365

[Supreme Court (AJ&K)]

Present Muhammad Reaz Akhtar Chaudhry, C. J. and Muhammad Azam Khan, J

Mst. KANEEZ BIBI---Appellant

Versus

MUHAMMAD YAQOOB and another---Respondents

Criminal Appeal No. 54 of 2007, decided on 25th April, 2009.

(On appeal from the order of the Shariat Court dated 10-12-2007 in Criminal Revision Petition No. 108 of 2007).

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

----S.497---Application for grant of bail---Scrutiny of evidence on record at bail stage---Scope---Deeper scrutiny or the minute study of the evidence on record was neither permissible nor desirable, however, the court could not decide a case in vacuum---Court was supposed to make tentative assessment of the F.I.R., statements of the witnesses recorded under S.161, Cr.P.C., recovery evidence, the statements of witnesses recorded in the court and other incriminating evidence collected by the prosecution; and defence plea, if any by accused.

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

----S.497---Penal Code (XLV of 1860), Ss.302/34/109---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Qatl-e-amd---Bail, grant of---Application for grant of bail filed by respondent/accused was dismissed by the Trial Court, but on filing revision, Shariat Court, accepted said application and released accused on bail vide impugned judgment---Deceased, accused and the complainant were real brothers and sisters---Version of the complainant was that dispute was in respect of land and house between the brothers (accused and deceased); and that accused was inimical towards the deceased due to the reason that deceased was unmarried and accused wanted to grab the whole property---Occurrence was unseen and human remains in the form of bones were recovered--Medical Officer who conducted post mortem, had described the condition of dead body as unidentifiable decomposed dead body--Doctor had not described that any bone was broken or cut--Recovery of axe had been effected from the cattle room of accused along with a piece of string---Said articles were sent to the Chemical Examiner whose report was not supportive---Prima facie, the evidence collected by the prosecution did not support the version adopted by the complainant---Statements of real sisters of both the deceased and accused, were not corroborated by any other evidence---Mere heinousness of crime was no ground for refusing the bail---Shariat Court had released accused on bail on the ground that prima facie the case against accused fell in the ambit of further inquiry---Prima facie no reasonable grounds were available for connecting accused with offence and his case fell within the ambit of further inquiry---Shariat Court having exercised the discretion in a judicial manner, same could not be interfered with in appeal by the Supreme Court.

State v. Muhammad Ayub Khan 1994 SCR 32; Khurshid Ahmed v. Muhammad Ilyas and others 1994 SCR 136; Ashiq Hussain Shah and others v. Mst. Fazal Begum and others 1994 SCR 263; Muhammad Fazal v. Zahid Mahmood and 3 others 1998 MLD 1156 and Ejaz Ahmed v. Imran Tipu and 3 others 1998 PCr.LJ 371 ref.

Ch. Muhammad Anwar for Appellant.

Ch. Muhammad Sharif Tariq for Respondent.

Ch. Muhammad Mushtaq, Advocate-General for the State.

Date of hearing: 24th March, 2009.

PCrLJ 2010 SUPREME COURT AZAD KASHMIR 1505 #

2010 P Cr. L J 1505

[Supreme Court (AJ&K)]

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

AURANGZEB----Appellant

Versus

THE STATE through Advocate-General----Respondent

Criminal Appeal No. 13 of 2005, decided on 5th August, 2008.

(On appeal from the order of the Shariat Court dated 30-5-2005 in Criminal Appeal No. 52 of 2004).

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

----S. 302(a)---Qatl-e-amd---Appreciation of evidence---Filing of F.I.R. was not delayed---Place of occurrence and names of eye-witnesses had been categorically mentioned in the F.I.R.---Eye-witnesses could identify the accused in the light of gas lamp in given circumstances---Eye-witnesses had clearly stated that accused had fired at the deceased---Site plan had also clearly indicated the place where the accused was standing when he fired on the deceased---Ocular version had been rightly disbelieved to the extent of acquitted co-accused nominated in the F.I.R. and involved in the commission of offence---Principle and the maxim "Falsus in uno falsus in omnibus" was not followed by the Courts in this country due to prevailing conditions and the Courts were obliged to sift the grain from the chaff---Evidence not accepted qua some accused needed not to be rejected necessarily in other respects as well---Independent and natural witnesses of the occurrence had made confidence impiring statements and the accused had failed to bring on record any details of their enmity with him---Non-recovery of blood stained earth from the spot could be due to the thick clothing of the deceased-- Even otherwise, such fact would not destroy the prosecution story which was otherwise proved by ocular version supported by sufficient corroborative and confirmative evidence---Defence evidence when read as a whole did not imspire confidence--Conviction and sentence of accused were upheld in circumstances.

PLD 1978 SC (AJ&K) 146; 2007 PCr.LJ 1757; PLD 1977 SC 413 and Fields Law of Evidence in British India, 8th Edition XL and XLI ref.

(b) Maxim---

---Falsus in uno falsus in omnibus: false in one particular false in all is dangerous for application in the country, because if whole testimony of a witness has to be rejected due to his speaking untruth in one or more particulars he was likely to be dispensed with---Story always has an embroidery, though it may be true in the main---Main true part of the deposition should not be rejected arbitrarily due to falsity on some very minor point---Where a witness falsely implicates some innocent persons in addition to real culprits, his whole statement may not be rejected if main portion of his evidence, which rings true, is legally reliable.

PLD 1978 SC (AJ&K) 146; Fields Law of Evidence in British India, 8th Edition XL and XLI and PLD 1977 SC 413 ref.

Asghar Ali Mallick for Appellant.

Sardar Khan for the Complainant.

Mumtaz Hussain Kiani, Additional Advocate-General for the State.

Date of hearing: 14th November, 2007.

PCrLJ 2010 SUPREME COURT AZAD KASHMIR 1567 #

2010 P Cr. L J 1567

[Supreme Court (AJ&K)]

Present Muhammad Reaz Akhtar Chaudhary, C.J. and Muhammad Azam Khan, J

WAZARAT HUSSAIN---Appellant

Versus

NAZIR AKHTAR and another---Respondents

Criminal Appeal No. 32 of 2007, decided on 4th February, 2009.

(On appeal from the judgment of the Shariat Court of Azad Jammu and Kashmir dated 26-4-2007 in Shariat Appeals Nos.35 of 2005 and 44 of 2005).

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

----S. 417---Penal Code ,(XLV of 1860), 5.302---West Pakistan Arms Ordinance (XX of 1965), S.13---Azad Jammu & Kashmir Interim Constitution Act (VIII of 1974), S.44---Qatl-e-amd---Appeal against acquittal---No direct evidence was available in the case and prosecution case rested upon circumstantial evidence---If the case was solely based on circumstantial evidence, then it was necessary to prove the motive---All the three witnesses had not narrated in their statements anything from which it could be ascertained that accused had motive to kill deceased---Prosecution, in circumstances, had failed to prove the motive in the case---Case being based on circumstantial evidence, recovery of crime weapon was of paramount importance---Recovery memo was not put to prosecution witness nor his signatures on recovery memo were got identified by said witness---Said witness had not stated anything about the recovery of crime empties---S.H.O. who allegedly recovered the weapon of offence, prepared recovery memo, but he had not identified the signatures of the witnesses on the recovery memo nor he had stated that he had recovered the gun in the presence of said witnesses---Crime weapon/double barrel gun was recovered from an open place in the jungle which was accessible to general public---Said place could not be said, in circumstances, to be in exclusive possession of accused---Recovery of weapon appeared to be doubtful and false--Recovery of weapon of offence along with crime empties, in circumstances was not proved and same could not be relied upon--Extra-judicial confession was not beyond suspicion and it appeared that the witness had concocted the story to enrope accused with the commission of offence---Prosecution for the purpose of establishing case had produced three witnesses, who were witnesses of circumstances and their statements were recorded after recovery of dead body of deceased and their testimony was full of doubts and that type of evidence could not be believed in a case of circumstantial evidence---Nothing material was available in the statements of any of the witnesses which was detrimental for the defence or on the basis of which accused could be connected with the offence---Accused having been acquitted by the Shariat Court there was double presumption of innocence in favour of accused and on the general principle that an accused was innocent until and unless he was proved guilty---Prosecution having failed to bring home the guilt of accused, Shariat Court had rightly acquitted accused, in circumstances.

Muhammad Aslam alias Tady and others v. The State 2006 YLR 2963; Yousaf v. the State 2000 PCr.LJ 366; Muhammad Khurshid Khan v. Muhammad Basharat and another PLD 2007 SC(AJ&K) 27; Muhammad and others v. the State 1981 PLD 635; Muhammad Zia v. The State 2007 PCr.LJ 361; Muhammad Yousaf v. The State 1992 PCr.LJ 1426; Liaqat Ali and 2 others v. Raja Shahid Nawaz and 2 others 2007 PCrLJ 246; Muhammad Rafique v. The State 1981 PCrLJ 1304; Mst. Sabhia Begum v. Ummat-ul-Islam 2007 MLD 653; The State v. Mst. Falawat Janand and another 1992 SCR 366; Muhammad Mushtaq v. State 2001 YLR 1164; Ajaib Sikandar v. Muhammad Javed and others 2006 PCrLJ 1893; Noor Ahmed and others v. the State 1992 SCR 1; Masood and another v. State 1994 SCMR 6; and Muhammad Khurshid Khan v. Muhammad Basharat and another PLD 2007 SC (AJ&K) 27 rel.

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

----S. 302---Appraisal of evidence----Circumstantial evidence---Circumstantial evidence would mean evidence afforded by testimony other than the eye-witnesses bearing upon a fact or other subsidiary facts which were relied upon as consistent that no result other than truth of principal facts would be so proved that there would not leave any possibility of innocence of accused---Such possibility would be of such a high degree and standard that a prudent man after considering all the facts and circumstances was able to reach at the conclusion that he was justified in holding accused guilty and from the evidence no other inference could be drawn, except the guilt of accused---Circumstances from which the inference adverse to accused was sought to be drawn, must be proved beyond all doubts---In a case of circumstantial evidence where prosecution rested its case on recovery of weapon of offence the recovery was very important and the fate of the case would rest upon that recovery---Circumstantial evidence was conclusive only when it could possibly tend to no other inference except the guilt of accused and the facts should exclude any reasonable hypothesis of innocence of accused before conviction could be based on such evidence---Circumstances must unmistakably point towards guilt of accused and the circumstances should be so connected that those would form a chain of events and every link of chain in the circumstances must be proved---If any link in the chain was missing then the whole chain would break.

Ashiq Hussain v. The State 1993 SCMR 417; Muhammad Mushtaq v. State 2001 YLR 1164 and The State v. Mst. Falawat Jan and another 1992 SCR 366 ref.

----S.164---Qanun-e-Shahadat (10 of 1984), Arts.39, 41, 42 & 43---Extra judicial confession---Extra judicial confession was the weakest type of evidence---While accepting or rejecting the extra judicial confession made before any person, the position of such person in society, before whom confession was made, had to be weighed---If a person who was near relative of accused or to whom accused had faith or he was an influential person who could be helpful to him or he could extend some help and exercise influence in his favour, then that type of extra judicial confession had to be considered or believed coupled with other circumstances of the case---Where extra judicial confession allegedly had been made before a person who was neither an influential person nor had good, friendly or cordial relations with accused so that accused could trust him or seek his help, such confession was full of suspicion and could not be believed.

Muhammad Sadiq and another v. State PLD 1960 SC 223 ref.

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

----S. 302---Qatl-e-amd---Appraisal of evidence---Testimony of related witness---Related witness was as competent a witness as any other---Testimony of such a witness could be believed like any other witness, provided it would ring true and was confidence-inspiring---If the witness was not inimical towards accused and had motive to falsely implicate accused, then his evidence could be relied upon for convicting accused.

Mirza Abdul Aziz Rattalvi for Appellants.

Sardar Abdul Hamid Khan for Respondent No. 1.

Muzaffar Ali Zafar, Additional Advocate-General for the State.

Date of hearing: 4th February, 2009.

PCrLJ 2010 SUPREME COURT AZAD KASHMIR 1623 #

2010 P Cr. L J 1623

[Supreme Court (AJ&K)]

Present: Muhammad Raez Akhtar Chaudhary, C.J. and Khawaja Shahad Ahmed, J

Criminal Appeal No. 28 of 2007

NASRULLAH---Appellant

Versus

SHAMIM AKHTAR and 4 others---Respondents

Criminal Appeal No. 29 of 2007

NASRULLAH---Appellant

Versus

SABIR HUSSAIN arid another---Respondents

Criminal Appeal No. 31 of 2007

SABIR HUSSAIN---Appellant

Versus

THE STATE through Additional Advocate-General AJ&K, and 2 others---Respondents

Criminal Appeals Nos.28, 29 and 31 of 2007, decided on 12th June, 2009.

(On appeals from the judgment and order of the Shariat Court dated 11-5-2007 in Criminal Appeals No.17, 20 and 25 of 2000).

(a) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)---

----Ss.5 & 15---Appreciation of evidence---Sentence, remission of---Cross-appeal for enhancement of sentence---Trial Court after considering some facts known as mitigating circumstances awarded 18 years imprisonment to the accused---At the time of announcement of the judgment and even before that, accused absconded, but finally was arrested and kept in custody---If the remissions earned by accused were included in the period of sentence of 18 years and the time he remained absconded, was excluded, still a conservative calculation had revealed that accused remained in jail for a period of more than 20 years; whereas after calculating the period of sentence, according to said method accused had to be released after completion of 18 years sentence awarded to him by the Trial Court---Cross-appeal for enhancement of sentence of accused filed by the complainant, could not be heard when the legal sentence of life imprisonment (14 years) or more than that had already been served---Azad Jammu and Kashmir Interim Constitution Act, 1974, though did not contain the specific provision/fundamental right as contained in Art.13 of Constitution of Pakistan, but keeping in view the scheme of law dealing with the doctrine of double jeopardy and powers of Supreme Court to do complete justice in any case, cross-appeals filed for enhancement of sentence, were dismissed holding that accused having already undergone legal sentence of more than 14 years at the relevant time, was entitled to be released forthwith.?

Bahadur Ali and others v. The State and others 2002 SCMR 93 and Abdul Rashid's case as 2001 PCr.LJ 524 ref.

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

----S.417---Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), Ss.5 & 15---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974 S.42---Appeal against acquittal---Concurrent findings of the courts below in criminal cases could not be recalled and the evidence could not be reappraised as a routine---Judgments so recorded by the courts below had to be maintained unless found perverse, capricious, arbitrary or based on exclusion of evidence compulsorily to be admitted and relied upon under the provisions of Qanun-e-Shahadat, 1984---Evidence brought against the acquittal of accused persons had not been believed by the Trial Court and Shariat Court had maintained judgment of the Trial Court---In absence of any specific denial the findings of the Shariat Court being correct, could not be interfered with---Once an accused was acquitted by the Trial Court, double presumption of innocence, would vest in him which could not be recalled by finding fault in shape of minor discrepancies and irrelevant contradictions in the prosecution evidence.?

PLD 1985 SC 11; 1992 SCMR 96; Abdul Khaliq v. Muhammad Afsar Khan and 4 others 1995 PCr.LJ 391 and Mirza Noor Hussain v. Farooq Zaman and 2 others 1993 SCMR 305 ref.

Ch. Muhammad Mumtaz for Convict/Appellant.

Raja Inaamullal1 Khan for the Complainant/Appellant.

Mushtaq Ahmed Chaudhary, Advocate-General for the State.

Date of hearing: 5th June, 2009.

PCrLJ 2010 SUPREME COURT AZAD KASHMIR 1787 #

2010 P Cr. L J 1787

[Supreme Court (AJ&K)]

Present: Muhammad Reaz Akhtar Chaudhry, C. J., and Muhammad Azam Khan, J

MUHAMMAD TAHIR AZIZ---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.42 of 2005, decided on 27th March, 2009.

(On appeal from the judgment of the Shariat Court dated 23-6-2005 in Criminal Appeal No. 21 of 2002 and Reference No. 13 of 2002).

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

----S.302---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44--- Qatl-e-amd--- Appraisal of evidence--- Complete concordance existed among four eye-witnesses regarding the time, place and manner of occurrence---With regard to those points no contradiction was found between the said witnesses---No enmity existed between the complainant and accused and none of the witnesses was suggested about enmity with accused---Nothing was on record on the basis of which it could be said that the complainant had any enmity with accused---Incident was a daylight murder---No enmity was suggested to any of the prosecution witnesses---During cross-examination even it was not suggested to the complainant that he had given false evidence and that complainant had not seen the occurrence---Presence of complainant at the place of occurrence along with other witnesses was not disputed during the cross-examination---Version of the complainant that five bullets were fired by accused, found corroboration from statements of prosecution witnesses and it also found corroboration from the post-mortem report---Prosecution witness though was relative of the complainant, but mere relationship was no ground for discarding the evidence of a prosecution witness, unless and until his enmity was established with accused---Accused was not an ordinary man, but he was a desperate and hardened criminal, as first he killed deceased and after some days he fired at complainant/father of deceased---Pistol snatched by complainant from accused was recovered in presence of prosecution witnesses and its recovery had fully been proved---Version of the prosecution that deceased died with the bullet injuries, found corroboration from post-mortem report and statement of the Doctor---Evidence of eye-witnesses found corroboration from the evidence of recovery of pistol, post-mortem report, and the evidence of Doctor---Prosecution, in circumstances had proved its case against accused beyond any doubt---Punishment of death was rightly awarded to accused as he was not an ordinary person, but was a desperate criminal who first killed deceased and then attempted to kill the complainant/father of deceased---Accused having rightly been convicted and sentenced and his death sentence having rightly been confirmed by the High Court, appeal was dismissed by the Supreme Court.

Liaqat Ali and others v. Raja Shahid Nawaz and others 2007 PCr.LJ 246 and Liaqat Hussain and another v. Ulfat Khan and another PLD 2007 SC(AJ&K) 102 ref.

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

----S. 302--- Qatl-e-amd--- Reappraisal of evidence--- Interested witness---Corroboration---Corroboration, should not necessarily be from an independent witness, but anything in the circumstances satisfying the court that each interested witness had spoken truth to be sufficient for corroboration---Not necessary that the corroborative evidence should also be of same probative force---Corroboration could be from any circumstances satisfying the court that the eye-witnesses had spoken the truth.

Liaqat Hussain and another v. Ulfat Khan and another PLD 2007 SC (AJ&K) 102 ref.

----S. 302---Qatl-e-amd---Sentence---Penalty of death, awarding of---Where a case under S.302, P.P.C. was proved against accused beyond reasonable doubt, then the normal penalty of death was required and in such case leniency should not be shown, except where strong mitigating circumstances for lesser sentence were available---Where the prosecution had established the guilt of accused under S.302, P.P.C. through satisfactory and reliable evidence then the penalty of death had to be awarded---Basic object of punishment in civilized society was to create deterrence among the citizens so that no one should dare to commit the slay of any person---Sentence of death would create a deterrence in the society due to which no other person would dare to commit the offence of murder---If in any proved case lenient view was taken, then peace, tranquillity and harmony of society would be jeopardized and vandalism would prevail in the society.

Raja Saadat Ali Kayani for Appellant.

Ch. Jehandad Khan for the Complainant.

Muzaffar Ali Zafar, Additional Advocate-General for the State.

Date of hearing: 12th February, 2009.

PCrLJ 2010 SUPREME COURT AZAD KASHMIR 1850 #

2010 P Cr. L J 1850

[Supreme Court (AJ&K)]

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

GHULAM RASOOL SHAH---Appellant

Versus

STATE through S.H.O. Police Station Garhi Doputta and others---Respondents

Criminal Appeal No. 3 of -2009, decided on 30th September, 2009.

(On appeal from the judgment of the Shariat Court dated 20-1-2009 in Criminal Appeal No. 13 of 2008).

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

----Ss.279, 320 & 323---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Rash driving, qatl-e-khata by rash and negligent driving and diyat---Appeal to Supreme Court---Appraisal of evidence---Benefit of doubt---S.H.O. concerned who appeared as prosecution witness, had not seen the occurrence, but he received information of said occurrence when he along with other Police Officials was patrolling---S.H.O. who recovered Jeep in question and prepared recovery memo, had stated that due to skid marks on the spot he could say that accident took place due to negligence, carelessness and rash driving of the driver of the Jeep---When the S.H.O. reached on the spot, accident having already taken place, how he could ascertain from the skid marks that said marks were of the same Jeep which met the accident, when on the road there could be skid marks of various vehicles---No evidence was available on the file on the basis of which it could be said that skid marks were pointed out by any other eye-witness---S.H.O. had nowhere deposed in the statement that Jeep was being driven in a high speed---Evidence of said witness was based on presumptions---Accident had taken place due to separation of four wheels of Jeep and in such-like situation no driver could control the Jeep and it had to meet an accident---Contradiction was found between the statements of witnesses as to how accident took place---All prosecution witnesses had simply stated that accident took place due to rash driving of the Jeep, but not a single witness could point out that what was the speed at the time of accident---Version narrated by the witnesses was self-contradictory---Stand of accused/driver, from the very beginning was that Jeep met the accident due to opening of central arm pin and that version of accused was not denied or refuted by the prosecution---Prosecution was bound and obliged to prove its case beyond any doubt and had to stand on its own legs, but prosecution having failed to do that, every benefit of doubt would go to accused---Surmises and conjectures could not take the place of proof and conviction could not be recorded on the basis of presumption, but it could be recorded only on the basis of strong and cogent evidence---Prosecution having failed to do so, judgment recorded by the Trial Court and upheld by the Shariat Court, were set aside and accused stood acquitted.

(b) Criminal trial---

----Two interpretations of evidence---Where two interpretations of evidence were possible, then the one favourable to accused should be adopted.

Khushal and another v. The State 1971 SCMR 357; State through Advocate-General v. Farman Hussain and others PLD 1995 SC 1; Karim Dad v. Zahir and others 2004 SCR 36 and Tufail Hussain Shah v. The State 1994 SCR 275 ref.

Mujahid Hussain Naqvi for Appellant.

Ch. Muhammad Mushtaq, Advocate-General for Respondents Nos. 1 and 2.

Raja Faisal Majeed Khan for Respondents No. 3 to 11.

Date of hearing: 1st July, 2009.