PCRLJ 2011 Judgments

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.

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.

2011 P Cr. L J 190

[Federal Shariat Court]

Before Syed Afzal Haider, J

SOHAIL AFZAL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 28/L of 2008, decided on 20th July, 2009.

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

----S.11---Abducting women to compel for marriage, etc.---Appreciation of evidence---Accused had admitted his previous relationship with the alleged abductee, who had visited his house on the fateful night, but his mother had returned her back to her house---Said plea of the accused had remained consistent throughout the police investigation, the trial and final arguments---Name of accused was entered in the Register of the Madrasa as a person entitled to see the abductee whenever he wanted---Abductee had conceded that during the entire process of her abduction she had neither raised hue or cry nor offered any resistance and that no Nikah papers were ready, nor she was asked to sign blank Nikha form---Abductee did not even receive a single bruise on her body---No pistol, crime empties or even the motorcycle allegedly used in the commission of the offence, had been recovered by the police from the accused---Real brother of the abductee and another witness, nominated in the F.I.R., were not examined by the prosecution---Abductee was not recovered from the accused---Evidence of the complainant regarding his being away from his house on the night of occurrence, did not inspire confidence---Accused was acquitted in circumstances.

Nemo for Appellant.

Arif Karim Chaudhry, Deputy Prosecutor-General for the State.

Date of hearing: 20th July, 2009.

2011 P Cr. L J 245

[Federal Shariat Court]

Before Syed Afzal Haider, J

HUSSAIN BAKHSH alias BILAL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 249/L of 2004, decided on 13th December, 2010.

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

----Ss. 10(3) & 11---Zina-bil jabr liable to Tazir and abduction---Appreciation of evidence---Solitary and uncorroborated statement of complainant-vas mot acceptable---In the present case, on the same set. of evidence five co-accu3ed were acquitted---Story of abduction being not free from doubt, accused was not convicted for abduction--- Charge of rape was also not proved---Claim of the prosecution to maintain conviction of accused for abduction and rape, could not be sustained, in circumstances---In order to bring home the guilt to accused, the prosecution was under an obligation to prove the ingredients of the offence with which accused was charged---Prosecution had stated that accused took photograph of the complainant/alleged victim, however, no photograph was recovered from accused---No resistance was offered by alleged victim at any public place or the busy streets of the cities---Alleged victim reportedly boarded buses as well---Victim was not summoned to face trial---Such omission would amount to discrimination and it would not be safe to maintain conviction and sentence recorded against accused by the Trial Court---Impugned judgment delivered by the Trial Court, was set aside and accused was set free, in circumstances.

Syed Ahmed Saeed Karmani and Syed Fida Abbas for Appellant.

Ch. Muhammad Ishaque, D.P.-G. for the State.

Date of hearing: 13th December, 2010.

2011 P Cr. L J 285

[Federal Shariat Court]

Before Agha Rafiq Ahmed Khan, CJ

ATTA MUHAMMAD and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 26/Q of 2010, decided on 14th December, 2010.

Penal Code (XLV of 1860)---

----S. 392---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(3)--- Robbery and Haraabah---Appreciation of evidence---Unexplained delay of four days in lodging the F.I.R.---Complainant had neither mentioned any description of the accused persons in the F.I.R. nor in their Police statements---In absence of such description, reliance could not be placed on identification parade; which was held in supervision of DSP in the jail premises---No explanation was available on record as to why identification parade was not got conducted from Judicial Magistrate---Major contradictions were noticed in the F.I.R. as well as in the statements of witnesses---Complainant had stated in the F.I.R. that accused had taken away rupees three lac from his house, but in his statement before the court he had stated that accused took rupees one lac---Improvements were noted in the statements that accused had taken away golden and silver bangles and Balochi Silver necklace, but those facts had not been stated in the F.I.R.---Recoveries had not been procured from the houses of accused persons and they were allegedly in custody of the Police---At the time of alleged recoveries no private respectable person of the locality was called to act as Mashir and in that respect no explanation had been given---Prosecution having failed to prove charge against accused persons beyond any reasonable doubt, conviction and sentences passed by the Trial Court against accused persons, were set aside.

Mushtaq Ahmed v. The State PLD 1996 SC 574; Abdul Saleem and others v. The State PLD 2005 Quetta 86 and Asghar Ali alias Sabah and another v. The State and others 1992 SCMR 2088 ref.

Sardar Ahmed Haleemi for Appellants.

Liaqat Ali for the State.

Date of hearing: 8th December, 2010.

2011 P Cr. L J 511

[Federal Shariat Court]

Before Haziqul Khairi, CJ, Salahuddin Mirza and Muhammad Zafar Yasin, JJ

MANZOOR AHMAD and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 17-K and Murder Reference No. 3-K of 2005, decided on 17th March, 2008.

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

----Ss. 302(b) & 392/34---Appreciation of evidence---Sentence, reduction in---Bulk of evidence adduced by the prosecution revolved around circumstantial evidence and no eye-witness of the crime was available---Accused had made an extra-judicial confession at the police station and also before two independent witnesses---One of them was a businessman, while other was a movie maker---Accused in his extra-judicial confession admitted to have committed robbery and murder of deceased---Said extrajudicial confession before independent prosecution witnesses, when seen along with his disappearance after the incident, recovery of stolen articles from him and pointation to the place of occurrence and the place where he abandoned the car, had furnished satisfactory evidence to his guilt---Case of murder and robbery stood clearly established against accused--- Keeping however in view the facts and circumstances of the case, his sentence for murder was converted from death to imprisonment for life---Sentence of fine imposed on accused would remain the same and he would be entitled to benefit under S.382-B, Cr.P.C.

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

----Ss. 302(b) & 392/34---Qanun-e-Shahadat (10 of 1984), Arts.38 & 39---Appreciation of evidence-Extra-judicial confession---Counsel for accused had contended that extra judicial confession of accused had no evidentiary value as said confession was made by him at a police station---Validity---Extra Judicial confession, no doubt, was a weak piece of evidence and when it was made at Police Station, it surely was inadmissible in evidence---Accused, however also made confession before independent witnesses---Contention of counsel for accused, was repelled, in circumstances.

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

----Ss. 302(b) & 392/34---Appreciation of evidence---Neither weapons of offence, namely Dupatta' andnylon rope', allegedly used in the murder by co-accused were produced by the prosecution nor the quilt which covered the dead body was recovered and thus no direct evidence of her involvement in the crime was available---Indeed main accused had implicated co-accused in the commission of the crime and unless there was strong corroborative evidence, it was not worth considering---No recovery had been made from co-accused from her person or on her pointation---Co-accused, in circumstances was entitled to benefit of doubt---Accepting appeal of co-accused conviction and sentence awarded to her by the Trial Court were set aside and she was directed to be released from jail.

Imtiaz Hussain Gondal and Kashif Hanif for Appellants.

Syed Agha Zafir Ali, Assistant Advocate-General, Sindh for the State.

Date of hearing : 8th January, 2008.

2011 P Cr. L J 544

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan and Muhammad Zafar Yasin, JJ

MUMTAZ AHMED---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 195/L of 2007, decided on 28th August, 2009.

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

----S.10(3)---Zina-bil-Jabr---Appreciation of evidence---Benefit of doubt---Prior to lodging of the alleged report, name of accused was not mentioned as accused and instead the name of another person was mentioned therein---Material witnesses had been given up---Accused had already been behind the bars for more than four years---Complainant and victim of the offence as per witnesses of the prosecution, made allegation against different persons and that confusion had remained till the last and had not been clarified by the prosecution---Doubt existed in the circumstances in the name of actual offender and benefit of the same must go to accused---Conviction and sentence of accused were set aside and accused was acquitted of the charge against him and he was released.

Chaudhry Abdul Ghaffar for Appellant.

Ch. Muhammad Hussain Maken for the Complainant.

Arif Karim Chaudhry, Deputy Prosecutor-General for the State.

Date of hearing : 9th April, 2009.

2011 P Cr. L J 583

[Federal Shariat Court]

Before Agha Rafiq Ahmed Khan C.J. and Shahzado Shaikh, J

AL-AMEER---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No. 14/I of 2008, decided on 10th January, 2011.

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

----S. 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Unnatural offence, kidnapping---Appreciation of evidence---Both the eye-witnesses had provided a true and undiluted account of the occurrence and their evidence had inspired confidence---No material contradiction existed between the said eye-witnesses---Complainant, who was father of the victim, had no enmity or strong motive to falsely implicate accused in the case--Father of the victim would not substitute the culprit of the case---Complainant had reasonably explained the presence of accused at the place of occurrence in objectionable condition with the victim, and there was no reason not to accept his statement, which was not shattered in cross­examination---Other independent witness had also no animosity with accused to falsely depose against him---Said witness remained consistent on testimony, despite his cross-examination; he corroborated the statement of eye-witness on main point and proved presence of accused at the spot--Prosecution had proved its case against accused through independent and unimpeachable evidence---Charge against accused under S.377, P.P.C., was fully proved against accused, but charge under S.12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was not proved---Sentence of seven years' R.I. with fine of Rs.10, 000, would meet the ends of justice, in circumstances.

Shams Saeed Ahmad Khan v. Saifullah 1985 SCMR 1822 and Muhammad Akhtar v. Muhammad Shafique. and another 1986 SCMR 533 ref.

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

----S. 12---Kidnapping---Appreciation of evidence---Offence under S.12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, comprised of two parts; first part pertained to kidnapping or abduction, whereas second part pertained to commission of offence of unnatural lust which offence would not be covered when first part i.e. kidnapping or abduction was not satisfied---Use of force had not been alleged in taking the' victim for the offence of unnatural lust---No evidence was at all available as far as the alleged kidnapping or abduction was concerned; it was not safe to convict accused under S.12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 in absence of direct and concrete evidence qua kidnapping and abduction---Conviction/ sentence recorded by the Trial Court against accused, without satisfying as to the proof beyond any shadow of doubt about kidnapping or abduction, was not sustainable in law---Charge against accused under S.12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, having not been proved, conviction of sentence recorded by Trial Court thereunder, was set aside, in circumstances.

Javed Aziz Sindhu for Appellant.

Ch. Muhammad Sarwar Sindhu, Additional Prosecutor-General for the State.

Date of hearing:10th January, 2011.

2011 P Cr. L J 617

[Federal Shariat Court]

Before Agha Rafiq Ahmed Khan, C.J., Syed Afzal Haider and Shahzado Shaikh, JJ

AAS MUHAMMAD alias ASOO and another---Appellants

Versus

THE STATE---Respondent

Jail Criminal Appeal No. 81/I of 2006 and Jail Criminal Appeal No. 35/I and Murder Reference No. 3/I of 2008, decided on 17th May, 2010.

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

----S. 24---Criminal Procedure Code (V of 1898), S. 1(2)---Application of Code of Criminal Procedure, 1898---Scope---Provisions of the Code of Criminal Procedure, were applicable mutatis mutandis in respect of cases arising under the provisions of Offences Against Property (Enforcement of Hudood) Ordinance, 1979---Federal Shariat Court could examine question of fact and law and could quash, confirm, modify or enhance the sentence.

Dr. Munawar Hussain v. Dr. Muhammad Khan, District Health Officer, Sargodha 2004 SCMR 1462; Muhammad Abbas and another v. The State 1984 SCMR 129; Muhammad Sharif v. The State PLD 1999 SC 1063; Inayatullah v. The State PLD 2007 SC 237 and Rama Swamy Nader's case PLD 1958 SC 247 ref.

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

----S. 423---Powers of Appellate Court in disposing of appeal---Powers of Appellate Court to alter a conviction, were very wide under S.423, Cr.P.C., but those were subject to the condition that the altered conviction should not be such which could not have been recorded by the Trial Court.

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

---S. 173---Report of Police Officer---Commission of more than one offence was possible in one transaction and if the crime report under S.173, Cr.P.C. would reflect more than one offence, then it was convenient for the parties, if a single report was submitted in the Trial Court to avoid multiplicity of trials in the same cause of action with the same set of evidence available with prosecution.

Begu's case 1925 ILR 6 Lah. 226 (PC); Wallu's case 1923 ILR 4 Lah. 373; Gauns's case 1926 ILR 7 Lah. 561 and Nur Muhammad's case AIR 1945 PC 151 ref.

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

----S. 237---Section 237, Cr.P. C., enabled the court to convict a person of an offence, which was disclosed in the evidence of prosecution; and for which accused could have been charged with, though he was not actually charged for that offence.

Swab Gul v. The State PLD 1959 Lah. 655; Jahanzeb Khan v. State PLD 1963 Pesh. 145 and Mirza v. Crown PLD 1952 Lah. 11 ref.

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

----Ss. 302(b) & 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Qatl-e-amd, unnatural offence, kidnapping or abducting in order to subject a person to unnatural lust---Appreciation of evidence---Allegation against accused was corroborated by direct evidence of prosecution witnesses---No material was on record to show that allegation against accused persons was disproved---Complainant remained consistent in his statement in his cross-examination---Accused had not been able to substantiate their claim of bad blood due to deprivation of inheritance---No proof was of any common ancestor between the parties or existing right of accused in agricultural property usurped by the complainant was available--Testimony of Doctor relating to oral examination, clearly established the commission of unnatural offence with victim of tender age---Nature of injuries and cause of death of the victim had not been disproved---Medical corroboration of prosecution story was available on file of the case---No evidence was available on record to establish that the venue of incident was changed intentionally; or that incident had taken place at the time as alleged by accused persons---Oral testimony of complainant had been corroborated by medical report as well as the report of Chemical Examiner---Eye-witness account of complainant, had implicated accused persons---Record did not indicate any reason as to why the complainant would falsely implicate his own nephew---Impugned judgment was well reasoned---Evidence had been appreciated in proper perspective---In absence of cogent reasons, it was not possible to set aside the conviction and sentences recorded by Trial Court---Appeal was dismissed.

Muhammad Ashraf v. The State 1984 PCr.LJ 2762 and Amin Ullah v. The State 1993 SCMR 1806 ref.

Arif Ali Zafar Chohan for Appellants.

Mrs. Rukhsana Malik, Additional Prosecutor-General for the State.

Date of hearing: 3rd May, 2010.

2011 P Cr. LJ 646

[Federal Shariat Court]

Before Syed Afzal Haider and Shahzado Shaikh, JJ

MUHAMMAD ANWAR---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No. 30/I of 2010, decided on 31st January, 2011.

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

----Ss. 10(3) & 11---Zina-bil-jabr and kidnapping---Appreciation of evidence---Delay of eight days in lodging F.I.R. was explained by the complainant---Recovery of victim and weapon of offence from accused, was established and proved from the record of the case---Victim in her statement, had fully involved accused with specific role in the commission of offence---No reason was available to put at stake the honour of family of the complainant party to get registered a false case against accused---Report of chemical examiner regarding vaginal swabs was positive---Statements of all prosecution witnesses corroborated each other and no contradiction was found in their statements on material points of confinement of the victim for 18 days; and her recovery by Police from house of accused were proved against accused beyond shadow of doubt---However, allegation under S.11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, pertaining to kidnapping, abducting, was not proved against accused at all, as per requirement of law---Material and glaring contradictions were available in the statements of the complainant and the victim between themselves; and even within statements of each of them in that regard---Victim stated in her deposition that she was kept in an unknown place, whereas in the same statement she said that she was kept in the house of accused which was situated at a distance of 2 `acres' from her house---Victim did not say that she was also taken to any other place after the abduction---Both parties had admitted and it was proved on record that there existed serious family dispute and litigation between the parties and in that inimical situation, fabrications in the stay had become quite obvious---Prosecution stay had failed in inspire confidence about the allegation under S. 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and had failed to prove the same beyond any shadow of doubt---Conviction and sentence awarded to accused under S.11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 were not maintainable---Since victim girl was recovered by the Police from confinement the conviction and sentence awarded to accused were converted to one under S.344, P.P.C. and accused was awarded sentence of three years' R.I. with fine, in circumstances---Conviction and sentence recorded under S.10(3) of the offence of Zina (Enforcement of Hudood) Ordinance, 1979 were maintained.

Javed Aziz Sindhu for Appellant.

Ch. Muhammad Samar Sindhu, Additional Prosecutor-General for the State.

Date of hearing: 31st January, 2011.

2011 P Cr. L J 809

[Federal Shariat Court]

Before Agha Rafiq Ahmed Khan, CJ., Syed Afzal Haider and Shahzado Shaikh, JJ

MUKHTAR AHMED and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeals Nos. 245/L and 284/L of 2004 and Criminal Reference No. 2/L of 2006, decided on 6th October, 2010.

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

---Ss. 10(4) & 10(3)---Criminal Procedure Code (V of 1898), S. 345--Zina-bil-jabr---Sentences, reduction in---Effect of compromise---Hudood laws being not compoundable even with the permission of the court under S. 345, Cr.P.C., compromise effected between the parties leading to acquittal of accused, was not allowed---However, S. 345, Cr.P.C. did not debar the court from considering the compromise for the purpose of reduction of sentence, provided the compromise was voluntary and the accused had expressed their willingness not to repeat the offence and they had been forgiven in the name of Allah Almighty---Conduct of accused had also supported their repentence in this regard with a firm resolve not to create social problems in future---Forgiveness of accused had been established by the statements of the victim ladies---Counsel for the accused had agreed not to challenge the conviction of accused, if their death sentence was converted into the alternate sentence of life imprisonment---Compromise had been effected between the parties voluntarily, which would advance social harmony and peace between them---Forgiveness is Divine as mentioned in the sacred texts of Muslims---Convictions of accused were consequently confirmed, but sentence of death awarded to each accused under S. 10(4) of the Offence of Zina (Enforcement, of Hudood) Ordinance, 1979, was reduced to imprisonment for life and the sentence of 25 years' R.I. awarded to one accused under S. 10(3) of the said Ordinance was reduced to 14 years' R.I. in circumstances---Sentence of whipping of the said accused was set aside---Appeals were disposed of accordingly.

Muhammad Arif v. The State 2002 YLR 3077 and 2002 YLR 3077 ref.

Nazeer Ahmad Ghazi, Masood Sadiq Mirza, Muhammad Riaz Chaudhary and Zulfiqar Ali Noon for Appellants.

Muhammad Ashraf for the Complainant.

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

Date of hearing: 29th September, 2010.

2011 P Cr. L J 835

[Federal Shariat Court]

Before Agha Rafiq Ahmed Khan, CJ., Syed Afzal Haider and Shahzado Shaikh, JJ

JAVED IQBAL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 96/L of 2003 and Murder Reference No. 14/L of 2003, decided on 15th October, 2010.

Penal Code (XLV of 1860)---

----Ss. 364-A & 302(b)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10(3)---Kidnapping or abducting a person under the age of fourteen, qatl-e-amd, Zina-bil-jabr---Appreciation of evidence---Sentence, reduction in---F.I.R. did not suffer from any inordinate delay---Complainant party did not appear to have made any consultations before registration of the case---Accused, real nephew of the wife of the complainant, had been nominated in the F.I.R. ---Family of the complainant and the family of accused had no grudge against each other---Accused had led to the recovery of the dead body of the victim girl and her last worn clothes---Medical evidence had corroborated the prosecution version---Vaginal swabs of the deceased girl were found stained with semen and blood---Last seen evidence given by the brother-in-law of the complainant inspired confidence---Discovery of facts being the result of the pointation of accused, compliance of S. 103, Cr. P. C. was not essential---Identity of accused had no doubt and the prosecution case against him stood established---Convictions of accused were consequently maintained---Accused was a young man and a first offender---No direct evidence was available- in the case, which had depended only on circumstantial evidence---Death sentence awarded to accused under Ss.364-A and 302(b), P.P.C. was reduced to imprisonment for life in circumstances---Sentence of 25 years' R.I. of accused under S. 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was upheld---All the three sentences were directed to run concurrently with benefit of S. 382-B, Cr.P. C.

Ch. Muhammad Ameen Javed for Appellant.

Tassawar Ali Khan Rana, D.P.-G. for the State.

Date of hearing: 13th October, 2010.

2011 P Cr. L J 856

[Federal Shariat Court]

Before Agha Rafiq Ahmed Khan, C.J., Syed Afzal Haider and Shahzado Shaikh, JJ

Mst. SALMA BIBI---Petitioner

Versus

NIAZ alias BILLA and 2 others---Respondents

Criminal P.S.L.A. No. 15/L of 2007, decided on 11th October, 2010.

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

----S. 417---Appeal against acquittal, disposal of---Principles---Court will not normally interfere with the verdict of acquittal and give due weight and consideration to the finding of Trial Court, which besides having recorded the evidence had also watched the demeanour of the witnesses and attended to the plea of accused facing the trial---View of the trial Judge regarding the credibility of the witnesses will be examined---Verdict of acquittal affirms the initial plea that every person is presumed to be innocent unless proved guilty---Different view also if formed on reappraisal of the evidence on record is not sufficient for interference with the judgment of acquittal---Court will see if any manifest wrong, perversity or uncalled for conclusion is detected on reappraisal of evidence from the facts proved on record, whether the findings arrived at by Trial Court are wholly artificial, shocking and ridiculous, whether material evidence has been disregarded, misread blatantly so as to cause miscarriage of justice or the same has been illegally brought on record---Court should exercise extra caution while exercising jurisdiction in appeals against acquittal keeping in view the rights of accused to any benefit of doubt---Disregard of technicalities in a criminal trial without causing injustice is not enough for interference in the acquittal of accused.

The State v. Tanveer-ul-Hassan and 5 others 2009 PCr.LJ 199 ref.

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

----S. 10(4)---Criminal Procedure Code (V of 1898), S. 417(2)---Zina­-bil-jabr---Special leave to appeal against acquittal of accused, refusal of---Acquittal order had reinforced the initial presumption of innocence of the accused---Complainant could not point out any legal defect in the impugned judgment---Conclusions arrived at by Trial Court were neither fanciful nor arbitrary---No material piece Of evidence had been left unconsidered---Benefit of doubt is always accorded to the accused and not the complainant---Impugned judgment was well-reasoned and did not merit interference---Special leave to appeal was declined to complainant in circumstances.

The State v. Tanveer-ul-Hassan and 5 others 2009 PCr.LJ 199 ref.

M.A. Ghaffar-ul-Haq for Petitioner.

Ch. Abdul Razzaq, D.P.-G. for Respondents.

Date of hearing: 5th October, 2010.

2011 P Cr. L J 960

[Federal Shariat Court]

Before Agha Rafiq Ahmed Khan, CJ

JEHANGIR and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 11/L of 2010, decided on 15th October, 2010.

Penal Code (XLV of 1860)---

----S. 377---Unnatural offence---Appreciation of evidence---Benefit of doubt---Inordinate delay in lodging the F.I.R. had neither been explained by the victim complainant in the F.I.R. nor in his statement---Complainant, eye-witnesses and the Investigating Officer had contradicted each other regarding the place of incident, where the victim was subjected to sodomy by the accused---Accused could not be expected to commit sodomy with the complainant at a place adjacent to the rooms where several members of their families resided and were present---Victim and the witnesses had not disclosed the incident to any person in the neighbourhood or even in the village---Prime witness, owner of the hotel, from where the victim had allegedly been taken away by the accused, was neither examined by the Investigating Officer, nor shown as a witness in the challan---Investigating Officer though duty bound in this regard had not obtained the semen of the accused through Medical Officer and sent the same to the Laboratory for group matching, benefit of which would go to the accused---Accused were given the benefit of doubt and acquitted in circumstances.

Waqar-ul-Islam and another v. The State 1997 PCr.LJ 1107 ref.

Syed Sajjad Sarwar Gillani for Appellants.

Imran Sherazi, D.P.-G., Punjab for the State.

Date of hearing: 7th October, 2010.

2011 P Cr. L J 1000

[Federal Shariat Court]

Before Agha Rafiq Ahmed Khan, C.J.

ABDULLAH---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No. 34/L of 2009, decided on 27th October, 2010.

Criminal Procedure Code (V of 1898)---

----S. 540---Penal Code (XLV of 1860), Ss.337-J/379---Offence of Zina (Enforcement of Hudood Ordinance (VII of 1979), Ss. 10/16---Zina or zina-bil-jabr liable to Tazir, enticing or taking away or detaining with criminal intent a woman, causing hurt by means of poison and theft---Application for calling a person as court witness---Application filed by the petitioner under S.540, Cr.P.C. for summoning a Sub-Inspector and three other Police Officers as court witness, had been dismissed by the Trial Court---Validity---Sub-Inspector sought to be summoned was present for the purpose of recording his evidence, but was given up by the State counsel; his evidence was material for the just decision of the case, Trial Court should have called him as court witness---Nothing was available on record to suggest that other three police officials had also conducted any investigation and had recorded the statement of any witness---Trial Court had rightly declined the request of the petitioner to call said three Police Officers as court witnesses.

Bashir Ahmad v. State 1988 MLD 2435 and Muhammad Ashraf v. The State 2004 PCr.LJ 385 ref.

M. Amir Latif Sehr Bhutta for Petitioner.

Rana Muhammad Iqbal, D.P.P., Punjab for the State.

Date of hearing: 15th October, 2010.

2011 P Cr. L J 1018

[Federal Shariat Co urt]

Before Agha Rafiq Ahmed Khan C.J., Syed Afzal Haider and Shahzado Shaikh, JJ

MUHAMMAD ASHRAF alias BHOLA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 108/L of 2010 in Criminal Appeal No. 70/L and Murder Reference No. 4/L of 2004, decided on 4th March, 2011.

Penal Code (XLV of 1860)---

---Ss. 302(b) & 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Federal Shariat Court (Procedure) Rules, 1981, R. 31-A---Constitution of Pakistan, Art. 203-E(9)---Qatl-­e-amd, unnatural offence and kidnapping or abducting a person to subject to unnatural lust---Application for modification of sentences---Applicant/accused had contended that he had already undergone agony of lengthy trial and had suffered a lot in the jail---Accused had pleaded that it would be in the interest of justice if judgment of Shariat Court to the extent of his conviction and sentence on "two counts" was modified or clarified and sentences awarded to him were ordered to run concurrently---Shariat Court upheld judgment of the Trial Court and conviction of accused on both the counts---Death sentence awarded to accused by the Trial Court, however, was converted by Shariat Court into life imprisonment---Since the sentences had not been specifically ordered to run concurrently same would be treated "consecutively" as per judgment of Shariat Court---Shariat Court had been vested with review powers under Art. 203-E(9) of the Constitution and R.31-A of Federal Shariat Court (Procedure) Rules, 1981---No ground was available to interfere with the judgment of Shariat Court---Application of accused to modify sentences, was dismissed, in circumstances.

Iftikhar Ahmad and another v. The State and others 2009 SCMR 1142 ref.

Muhammad Ashraf Pasha for Petitioner.

Ch. Muhammad Ishaque, D.P.-G. for the State.

Date of hearing: 14th February, 2011.

2011 P Cr. L J 1033

[Federal Shariat Court]

Before Agha Rafiq Ahmed Khan, C.J., Syed Afzal Haider and Shahzado Shaikh, JJ

KHIYAL-UR-REHMAN alias KHAIR-UR-REHMAN---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No. 186/1 of 2005 and Criminal Murder Reference No. 8/I of 2005, decided on 17th May, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence-Nobody had seen the occurrence---Judicial confession had been retracted by the accused---Confessional statement made by accused before the police officer while in custody was inadmissible in evidence---Medical evidence had not disclosed the exact cause of death of the deceased---"Gainti" produced by the complainant before the police officer after six weeks of the occurrence was neither blood-stained nor was suspected by the complainant to be the crime weapon---Original record of the confessional statement of the accused recorded by the Magistrate had not been placed on the file--Prosecution had failed to prove its case against the accused beyond reasonable doubt---Accused was acquitted in circumstances.

Arif Nawaz Khan and 3 others v. State PLD 1991 FSC 53 ref.

Malik Abdul Haq for Appellant.

Mrs. Rukhsana Malik, Additional Prosecutor-General for the State.

Date of hearing: 3rd May, 2010.

2011 P Cr. L J 1062

[Federal Shariat Court]

Before Agha Rafiq Ahmed Khan, C.J., Syed Afzal Haider and Shahzado Shaikh, JJ

MUHAMMAD BILAL---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No. 73/I of 2010, and Criminal Murder Reference No. 6/I of 2010, decided on 18th March, 2011.

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

---Ss. 302(b) & 377---Qatl-e-amd and unnatural offence---Appreciation of evidence---Prosecution case rested upon circumstantial evidence as no direct evidence, either of commission of unnatural offence or strangulation of deceased was available on record---Strong chain of events was established in the case---Presence of accused at the place of occurrence, was not only normal, but had been established by oral evidence---Medical evidence, by way of post mortem report, established not only commission of unnatural offence, but also murder of deceased due to "chest and' abdominal pressure along with ligature "---Extra judicial confession of accused made before prosecution witnesses, rang true and had been duly corroborated---Pointation of place of occurrence, was also a factor which had supported the direct evidence of last seen and running of accused from the place of occurrence---Said circumstantial and direct evidence had led to the hypothesis of the guilt of accused---Prosecution had brought on record the best possible evidence---Nothing material had been suppressed by the complainant side---No motive to involve accused falsely in a murder case---Reasons relied upon by the Trial Court in recording conviction of accused were based upon evidence legally proved on record and it could not be said that the inference of guilt was not borne out by the evidence---No technical defect was found in the trial either---Conviction of accused recorded by the Trial Court, could not be interfered with---Accused, a strong young man of 25 years, who had played havoc with a minor of 10/12 years deserved neither sympathy nor leniency---Convictions and sentences awarded to accused by the Trial Court, were maintained, in circumstances.

Zia-ur-Rehman v. The State 2001 SCMR 1405 and Wazir Muhammad and another v. The State 2005 SCMR 277 ref.

(b) Criminal trial---

----Circumstantial evidence---In cases depending upon circumstantial evidence, the court had to be very cautious because a reasonable inference of guilt had to be determined on the basis of indirect evidence---Conviction in such circumstances could be based, if the facts and circumstances from which the conclusion of guilt had to be inferred must be established on record---Circumstantial evidence visualized a chain of evidence---All the links of the chain must be connected and should lead towards accused.

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

----Art. 21---Penal Code (XLV of 1860), Ss. 302(b) & 337---Qatl-e-amd and unnatural offence---Conduct of accused, relevancy of-According to Art.21 of Qanun-e-Shahadat, 1984, the conduct of accused was a relevant fact---Failure of accused to furnish plausible explanation that on which point, time and place where the deceased got separated from him, had to be considered judicially, because accused could not be said to have discharged the onus, which lay upon him in view of the provisions of Art.21 of Qanun-e-Shahadat, 1984---Fact that accused ran away from the place of occurrence on hearing the voice of the complainant party amounted to intentional avoidance---Running away from the scene of occurrence could be considered a pointer to guilt of accused---Value of such conduct would depend upon facts and circumstances of each case.

Nazir Ahmed Bhutta for Appellant.

Ch. Muhammad Sarwar Sidhu, Additional Prosecutor-General for the State.

Date of hearing: 15th March, 2011.

2011 PCr.LJ 1102

[Federal Shariat Court]

Before Shahzado Shaikh, J

ALI KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 96/I of 2010, decided on 28th March, 2011.

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

----Arts. 3/4---Manufacturing, owning or possessing intoxicant---Appreciation of evidence---Statement of Investigating Officer was recorded after 14 years of occurrence, but defence could not create any dent in spite of lengthy cross-examination---Co-accused who was convicted and sentenced to 10 years' R.I. and he completed his sentence, but accused remained absconder for about 14 years and was declared proclaimed offender---Case of accused was of same nature and same set of evidence had been produced by the prosecution against accused---Witnesses were found credible---All the recovery witnesses had corroborated each other and supported recovery of 11-1/2 Kgs. of heroin from accused which' on chemical analysis was confirmed to be heroin---Such a huge quantity of heroin could not be falsely planted on accused---Accused had failed to establish his plea of false implication and to rebut the prosecution version---No enmity against Police witness had been proved on record---Delay for sending the sample to Chemical Examiner for examination, would be immaterial as two samples were sent in time to the Chemical Examiner which were tested positive---Provision of S.103, Cr. P. C., was not strictly attracted in the case and Police Officers were competent witnesses of recovery who clearly deposed and corroborated regarding recovery of heroin from the possession of accused---Plea of violation of S.103, Cr.P.C., was not sustainable, in circumstances---Statements of Police Officials, in spite of cross-examination, were consistent---Mere fact that confessional statement of co-accused, was made by a person who was tried in same crime, when accused was absconding for long period of about 14 years, would not be sufficient to reject the same on that ground---No contradictions were found in the statements of prosecution witnesses--Samples were taken from all the bags and there was no confession or any contrary contention to the nature and quantity of the commodity---Procurement of private individual witness, would not be safely expected, in circumstances of the case---Judgment delivered by the Trial Court did not suffer from any infirmity or error---Interference was declined and judgment of Trial Court was maintained, in circumstances.?

Muhammad Hashim v. The State PLD 2004 SC 856; Nawab Ali v. The State NLR 1995 SD 374; Ahmad Sher and another v. The State PLD 1995 FSC 20; Tank Steel and Re-Rolling Mills Pvt. Ltd. v. Federation of Pakistan PLD 1996 .SC 69 and Ahmad Sher and another v. The State PLD 1995 FSC 20 ref.

(b) Words and phrases---

----"Public place ", defined and explained.

Muhammad Ishtiaq Ibrahim for Appellant.

Muhammad Sharif Janjua for the State.

Date of hearing: 28th March, 2011.

2011 P Cr. L J 1150

[Federal Shariat Court]

Before Agha Rafiq Ahmed Khan, C. J.

SHER MUHAMMAD---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Revision No. 33/L of 2009, decided on 4th October, 2010.

Criminal Procedure Code (V of 1898)---

----S. 540---Penal Code (XLV of 1860), S.377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 12---Unnatural offence and kidnapping in order to subject a person to unnatural lust---Application for summoning witness---DSP sought to be summoned to be examined as witness, had re-investigated the matter and second challan was submitted showing the name of petitioner/accused in Column No.2---Said DSP was never shown as witness in the challan---Under S.540, Cr.P.C., the court could call any person at any stage as court witness, but in the present. case the Trial Judge had declined to summon the DSP as in its view he was not necessary for just decision of the case---Said DSP had no personal knowledge about the facts of the case---Original Investigating Officer had examined the eye-witnesses, he visited the place of occurrence, sent the victim for medical examination and had completed the investigation---Summoning of DSP, whose name was not even shown as witness in the calendar, was not necessary for just decision of the case---Trial Court, in circumstances, had rightly dismissed application of accused for summoning DSP as court witness.

Muhammad Ashraf v. The State and 4 others 2007 PCr.LJ 905; Mahboob Khan v. The State PLD 1979 Lah. 691; State through A.-G., Sindh v. Bashir and others PLD 1997 SC 408; Farman Ali and 2 others v. The State 1992 SCMR 2055; Haji Rasheed Ahmad and 2 others v. The State 1998 PCr.LJ 2059 and Haji Muhammad Abdullah v. The State 1995 SCMR 821 ref.

Khalid Mian for Petitioner.

Rai Muhammad Zaffar Bhatti for Respondents.

Imran Sherazi, D.P.-G., Punjab for the State.

Date of hearing: 30th September, 2010.

2011 P Cr. L J 1252

[Federal Shariat Court]

Before Syed Afzal Haider Actg. C.J. and Shahzado Shaikh, J

WALI MUHAMMAD and 2 others---Appellants

Versus

THE STATE and 2 others---Respondents

Criminal Appeal No. 2/P of 2010, decided on 4th February, 2011.

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

----S. 17(3)---Penal Code (XLV of 1860), Ss.365-A/109/149---Haraabah, kidnapping---Appreciation of evidence---Benefit of doubt---Business deal existed between the parties, which created acrimony leading to use of force, coercion and wrongful confinement of the complainant and his companion by accused person---Conduct of the complainant party had created many doubts so far as allegation of Haraabah and kidnapping for ransom was concerned---No efforts were made to contact Police or any other responsible person or notable for the release of the victims by the complainant party---Even after alleged payment of the ransom money, prosecution witness did not contact any acquaintance, there was complete silence till release of the victims after 4/5 days---All persons allegedly involved in Haraabah, keeping in wrongful confinement, playing role in extorting and finally receiving money, had neither been arrested or identified---No identification parade was conducted to identify accused---Contradictions existed in the statements of prosecution witnesses as to reaching the Police Station on foot or otherwise---No record of telephonic communication to prove the guilt---Conduct of prosecution witnesses was not natural, right from striking deal, details of occurrence, payment of ransom till release and return of the victims which had created doubt---Prosecution, in circumstances, had failed to establish the charges under S.17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and under S.365-A, P.P.C. for kidnapping for ransom---Giving benefit of doubt, sentence and conviction of accused, awarded by the Trial Court under Ss. 365-A/149/109, P.P.C., was set aside.

Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410; Abdul Jabbar and another v. The State 1977 SCMR 50; Muhammad Asghar alias Nannah and another v. The State 2010 SCMR 1706; Ibrar Husain and others v. The State 2007 SCMR 605; Abdul Razzaq v. The State 1983 SCMR 408; Yousaf Ali and others v. The State 2002 SCMR 1885; Ghulam Shabbir and 2 others v. The State 2003 SCMR 663 and Siraj-ul-Haq and another v. The State 2008 SCMR 302 ref.

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

----Ss. 344/337-A(i)/337-F(i)/109/148/149---Wrongful confinement for ten or more days, causing Shajjah and Ghayar-Jaifah---Appreciation of evidence---Factum of business dealing between the parties and acrimony and altercation that cropped up, had not been denied by accused persons---Instead of following the legal course for settlement of their dispute and for effecting recovery of any amount due, the illegal and coercive method of violent force and confinement applied by accused party was very well presumed from the statements of the victims, investigation, circumstances and evidence brought on record, duly corroborated by medical reports---Sentence and conviction awarded by the Trial Court under Ss.344/337-A(i)/337-F(i)/109/ 148/149, P.P.C., were maintained, in circumstances.

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

----S. 17(3)---Penal Code (XLV of 1860), Ss. 365-A, 344, 337-A(i), 337-F(i)/148/149/109---Criminal Procedure Code (V of 1898), S.345---Haraabah, kidnapping, wrongful confinement, causing Shajjah and Ghayar-Jaifah---Compromise---Counsel for accused had stated that parties having compromised, a lenient view should be taken against accused persons---Contention was repelled because compromise in non-compoundable criminal case was not only restricted and governed by express provisions of law, but also should be carefully examined and weighed against circumstances and compromising capabilities, strength and weakness of parties; in order to ward off any attempt to defeat the process of law and criminal administration of justice---Compromise in non-compoundable cases was penalty against law---Acceptance of compromise would not cure illegality---Application regarding compromise filed by accused, was dismissed, in circumstances.

Abdul Razzaq v. The State 1983 SCMR 408; Yousaf Ali and others v. The State 2002 SCMR 1885; PLD 2005 Lah. 328 and 1976 PCr.LJ 94 ref.

Astaghfirullah and Javed A. Khan for Appellants.

Muhammad Sharif Janjua and Muhammad Taj for the State.

Date of hearing: 28th January, 2011.

2011 P Cr.LJ 1443

[Federal Shariat Court]

Before Shahzado Shaikh, J

KHADIM HUSSAIN---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No. 78/1 of 2010, decided on 3rd March, 2011.

Penal Code (XLV of 1860)---

----S. 376---Rape---Appreciation of evidence---Ocular testimony of the prosecution witness was natural, reliable, satisfactory and confidence inspiring---Prosecution had fully proved the case against accused beyond any shadow of doubt---Defence had not proved any enmity, ill-will or malice against prosecution witness---Sole testimony of the victim was enough for conviction, if it was truthful and inspiring confidence---Trial Court with sound and cogent reasons had repelled the contention regarding delay in the lodging of the F.I.R. as well as delay in medical examination---Despite the fact that DNA report about the swabs did not match with the profile of accused, the observations of lady doctors, were enough evidence of the fact that victim had been subjected to sexual intercourse---Opinion of the Lady Doctor lent corroboration to the statement of the victim that accused had subjected her to zina---Non-receipt of matching report of DNA test, did not negate the ocular account of prosecution witness---Prosecution was not bound to produce all the prosecution witnesses mentioned in the calendar of the witnesses, except which were necessary to prove the guilt of accused---Objection with regard to non production of Muharrar as a witness, was brushed aside, in circumstances---Neither accused himself- had appeared as a witness of his own account to make statement on oath that he was falsely implicated by the father of the victim, nor he had produced any defence witness for disproving the charge against him---Accused remained absconder for considerable period and his absconsion was another strong supportive factor in the allegations---Defence version that accused was falsely implicated was a mere assertion, which had no substance in it to cast doubt on the version of the prosecution, which stood proved through cogent, reliable and trustworthy evidence---Prosecution having proved its case beyond any shadow against accused, accused had rightly been held guilty, convicted and sentenced by the Trial Court---Conviction and sentence awarded to accused by the Trial Court, were maintained.

AIR 1934 Lah. 797; 1993 PCr.LJ 234; PLD 2005 Lah. 589; 1976 SCMR 338; PLD 1961 Dacca 447 (DB); 1994 PCr.LJ 443 and 1986 SCMR 512 ref.

Saliheen Mughal for Appellant.

Ch. Muhammad Sarwar Sidhu, Additional Prosecutor-General for the State.

Date of hearing: 3rd March, 2011.

2011 P Cr. L J 1472

[Federal Shariat Court]

Before Agha Rafiq Ahmed Khan, C.J.

MUJAHID HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 47/I of 2010, decided on 6th May, 2011.

Penal Code (XLV of 1860)---

----S. 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Unnatural offence/sodomy, kidnapping in order to subject person to unnatural lust---Appreciation of evidence---Sentence, reduction in---Delay in lodging the F.I.R. had fully been explained by the complainant---Doctor examined the victim on the next day of incident, which would mean that Police must have refused to register the F.I.R., which was registered after the medical certificate of the victim was received---Delay in registration of the case could not be fatal, in circumstances, especially when same had been explained satisfactorily---Victim who was about eight years old at the time of incident, in his deposition before the court had fully implicated accused and prosecution witnesses had fully corroborated the evidence of the victim---Report of chemical examiner indicated that the swabs were found to be stained with semen and in the opinion of the doctor sodomy was committed on the victim---Defence plea taken by accused, did not appeal to mind and appeared to be afterthought---Mere relationship of witnesses with the victim could not be ground for disbelieving eight years' minor when his evidence was corroborated by doctor who examined him---Evidence on record fully proved that accused and none else had committed sodomy with the victim---Accused, in circumstances, had committed an offence punishable under S.377, P.P.C.---Allegation of kidnapping of the victim by accused was not proved as it had been alleged that the victim boy was passing near the house of accused when he took him to the Baithak on the pretext of listening 'Deck'---Provisions of S.12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was not attracted---Conviction and sentences passed by the Trial Court under S.12 of the Offence of Zina (Enforcement of 'Hudood) Ordinance, 1979, were set aside and accused was acquitted from the charge thereunder---Conviction of accused under S.377, P.P.C., was maintained---Since accused was of tender age and it was his first offence, his sentence was reduced from seven years' R.I. to three years' R.I.

Muhammad Razzaq and Munir Ahmad v. The State PLD 1967 SC 363; Zulfiqar v. The State PLD 1985 FSC 404 and Muhammad Tufail v. The State PLD 1984 FSC 23 ref.

Mehr Sardar Ahmed Abid for Appellant.

Ch. Muhammad Sarwar Sidhu, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 21st April; 2011.

2011 P Cr. L J 1503

[Federal Shariat Court]

Before Agha Rafiq Ahmed Khan, C.J.

JAVED and 3 others---Appellants

Versus

RAB NAWAZ and another---Respondents

Criminal Appeal No. 94/I of 2010, decided on 6th May, 2011.

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

----Ss. 10 & 11---Zina or zina-bil-jabr liable to Tazir and kidnapping a woman to compel for marriage---Appreciation of evidence---F.I.R. was lodged with inordinate delay of three days and explanation given by the complainant for said delay did not appeal to mind---F.I.R. had revealed that alleged victim was forcibly abducted by accused persons and the complainant, and the witnesses identified them in the torch-light, but they did not come to Police Station for lodging the F.I.R. and waited for more than three days, which was unnatural attitude on the part of the complainant---Alleged victim had not been recovered from accused persons, but was returned by another person after about 10 days of lodging the F.I.R. ---Said other person who was most important witness of the case, had neither been examined by the police nor by the complainant before the Trial Court---Story given by the victim that at about mid-night time she went out of her house all alone for attending the call of nature at a distance of about 2/3 acres from her house, was unnatural---Investigating Officer, deposed before the court that during his investigation he was of the opinion that alleged victim had gone with one of accused with her own free-will and consent; and that all remaining accused were not involved in the commission of offence---Other Police Officer had also stated that other accused were not found involved in the commission of the offence---Victim had not been examined by any lady doctor---No opinion from the medical side to the effect that any rape was committed upon alleged victim was available on record---Prosecution story seemed to be a fiction rather than reality---Statements of victim, her father and other close relatives being inconsistent, did not inspire confidence and there appeared serious doubts in the prosecution case---Prosecution had failed to prove the charge against accused persons and they were wrongly convicted and sentenced by the Trial Court---Conviction and sentence awarded to accused person by the Trial Court was set aside and they were acquitted of the charge, in circumstances.

Muhammad Amir and another v. The State 2001 SCMR 883; Muhammad Abbas and another v. The State PLD 2003 SC 863; Abdul Waheed v. The State 1995 SCMR 1498; Akbar Ali v. The State 2007 SCMR 486; Muhammad Maroof v. The State 1994 SCMR 755; Muhammad Siddique v. The State 1995 SCMR 1403; Ibrar Hussain v. The State 2007 SCMR 605; M. Aslam v. Shakeel Liaqat and others 2006 SCMR 348; Muhammad Arshad v. The State 1995 SCMR 1639 and Saeed Muhammad Shah v. The State 1993 SCMR 550 ref.

Tahir Mehmood Khokhar for Appellants.

M. Aurangzeb Khan for the Complainant.

Ch. Muhammad Sarwar Sidhu, Additional Prosecutor-General Punjab for the State.

Date of hearing: 6th May, 2011.

2011 P Cr. L J 1534

[Federal Shariat Court]

Before Shahzado Shaikh, J

AMJAD HUSSAIN---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No. 88/I of 2010, decided on 11th March, 2011.

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

----S. 377---Unnatural offence---Appreciation of evidence---Victim who was only 12 years of age, had supported the prosecution case as contained in the promptly lodged F.I.R. and corroborated each and every material point of the case---Victim had also corroborated medical evidence and the motive part of the prosecution story narrated by the complainant---Solitary statement of the victim of the sodomy, which was confidence-inspiring and corroborated by medical evidence, would be sufficient to prove the case and for maintaining the conviction under S.377, P.P.C.---No reason and ulterior motive existed to involve accused in the offence of sodomy with minor of 12 years, when, there was no enmity between the parties so as to make such allegation, which also stigmatize the minor victim for all his life---Recovery memo regarding the dirty piece of cloth which stated to have been taken into possession from the place of occurrence though was not available in the judicial file and clothes of the victim were not produced by the complainant, but that would not, mean that whole story was to be discarded---Established principle of law was that chaff was to be sifted from the grain---Such would not create any impact on the prosecution story, specially when victim's allegation was completely corroborated by the medical evidence---Case against accused stood proved beyond any shadow of reasonable doubt---Accused had rightly been convicted and sentenced under S.377, P.P.C., in circumstances.

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

----S. 377---Unnatural offence---Appreciation of evidence---Sentence, reduction in--Mitigating circumstances---Nothing was on record which could be considered as a source of mitigating factor in favour of accused for lesser penalty, particularly in view of minority of the victim; and statement of accused about his acquittal in similar charge against him in the past---Detention of accused as an under-trial prisoner during the trial and as convict in the Jail pending disposal of the appeal before High Court, would not be extenuating and mitigating circumstance to be considered for the purpose of reduction in quantum of sentence under S.377, P.P.C.---Reduction in sentence of imprisonment was not such a discretion, which should be exercised as a matter of routine, but such discretion was to be exercised in a case in which circumstances so demanded in the interest of safe administration of justice---In fact, instead of sentence for life, under S.377, P.P.C. the Trial Court had already given lesser sentence of 10 years--Argument of counsel for accused for reduction in the sentence of accused, in circumstances had no force---Conviction and sentence awarded to accused by the Trial Court, were maintained, in circumstances---Appeal was dismissed.

Aziz-ur-Rehman for Appellant.

Ch. Muhammad Sarwar Sidhu, Additional Prosecutor-General for the State.

Date of hearing: 11th March, 2011.

2011 P Cr. L J 1601

[Federal Shariat Court]

Before Agha Rafiq Ahmed Khan, C.J. and Salahuddin Mirza, J

GUL MUHAMMAD alias GULLU and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 23/K and 24/K of 2006, decided on 7th October, 2009.

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

----Ss. 392, 107 & 400---Robbery, abetment and belonging to gang of dacoits---Appreciation of evidence---No prosecution witness had implicated accused and nothing had been recovered from him or at his pointation---Only evidence against accused was provided by the judicial confession of co-accused---No other evidence was available against accused which could corroborate the allegations against him in the confessional statement---Said confessional statement did not contain any allegation against accused for hatching conspiracy---Allegation against accused, even if believed, did not make out a case under S.392, P.P.C. against him, but made out a case of abetment; or a case of belonging to a gang of dacoits in terms of S.400, P.P.C.-However, there was no corroboration of such allegation by any other piece of evidence--State Counsel as well as for the complainant did not seriously press the charge against accused---Conviction of accused, in circumstances could not be sustained; and to his extent impugned judgment of the Trial Court, was set aside and he was directed to be released.

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

----S. 396---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)--- Dacoity with murder and Haraabah---Appreciation of evidence---Recoveries of pistols, ammunition and stolen gold ornaments had been sufficiently proved through the evidence of prosecution witness and Investigating Officer who supported each other in all material details---Confession of one of accused persons was proved by prosecution witness who then was Mukhtiar kar---Said witness had complied with all the formalities of law before recording confession---Confessional statement had itself shown that prerequisite as enjoined by S.164(3), Cr. P. C. had been fulfilled while recording such statement---No lacuna in the recording of the confessional statement had been pointed out and no procedural irregularity was found in the recording of confession---Even otherwise procedural irregularity would not vitiate the evidentiary value of confession---Confession was inculpatory and was effective, both against the maker as well as against his co-accused---Both, the complainant and other prosecution witness had identified accused persons---No breach of law could be pointed out by counsel for accused in holding of identification parade, except that it was delayed by six days---Delay in holding identification parade was not always fatal to the prosecution case---Evidentiary value of identification parade, in circumstances, could not be assailed on the ground of delay---No fault could be found with the identification parade and Trial Court had rightly relied upon the same---Murder of deceased was sufficiently proved by the evidence of Doctor who had performed the postmortem examination on the body of deceased---Pistol recovered from one of co-accused was sent to the Ballistic Expert for comparison with the empties of pistol recovered from the place of occurrence; and his report established that empties were fired from the pistol recovered from said accused---Accused persons had been proved to have raided house of the complainant and deceased with the purpose of committing haraabah and did commit the same and in course of it one of accused persons caused murder of deceased---Accused, in circumstances, were rightly convicted and sentenced under S. 396, P.P.C. and their sentence was maintained.

Liaqat Bahadur v. State PLD 1987 FSC 43; Ghulam Abbas v. State 1992 PCr.LJ 842; Muhammad Kalam and 2 others v. The State 1999 MLD 55; Gul Jahan v. State 1998 MLD 288; Ashiq Hussain Shah v. Ashiq Ali Shah and others 1982 SCMR 1110; Javed Masih v. State PLD 1994 SC 314; Md. Yousif v. Muhammad Idris PLD 1994 SC 314; Ali Ahmad v. State 1999 MLD 2646; Muhammad Pervaiz v. State 2007 SCMR 670; Arif Nawaz Khan v. State PLD 1991 FSC 53; Shahzado v. State PLD 2005 SC 477; Ziaullah v. State 2005 SCMR 1461; Khalid Javed v. State 2003 SCMR 1419; Md. Nawaz v. State 1988 PCr.LJ 1965; Khal Ali v. State 1999 MLD 2477; Md. Asif v. State 1992 PCr.LJ 1411; Wajid Umer v. State 1992 PCr.LJ 1536; Riaz Ahmad v. State 2006 MLD 1223 and Zulfiqar v. State 1991 PCr.LJ 1145 ref.

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

----Ss. 392 & 396---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss.15 & 17(4)---Robbery, dacoity with murder and Haraabah---Appreciation of evidence---Evidence on record had proved that accused persons raided the house of complainant with the purpose of committing haraabah and did commit the same; and in course of the same one of accused caused murder of the deceased---Offence so committed fell within the definition of haraabah under S.15 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, commission of which was covered by S.17(4) of the said Ordinance---Was not necessary in haraabah that there should be five or more culprits, as was provided under S.396, P.P.C., however, since the witnesses did not come up to the standard laid down by the principle of tazkiya-al-shahood' accused persons could not be sentenced under S.17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and under S.396, P.P.C.---Contention of counsel of accused that after one of accused was exonerated and acquitted, only four accused were left and offence would not fall under S.396, but under S.392, P.P.C. and the sentence should be accordingly reduced was repelled---Charge framed was under S.17(4) of Offences Against Property (Enforcement of Hudood), Ordinance, 1979 and not under S.396, P.P.C., because the witnesses did not come up to the standard oftazkiya-al-shahood', accused were convicted under S.396, P.P.C.

M. Shafi Kashmiri for Appellants (in Criminal Appeal No. 23/K of 2006).

Muhammad Kassim Mirjat for Appellant (in Criminal Appeal No.24/K of 2006).

Salahuddin Panhwar for the Complainant.

Abdullah Rajput, Assistant Prosecutor-General Sindh for the State.

Date of hearing: 28th September, 2009.

2011 P Cr. L J 1643

[Federal Shariat Court]

Before Shahzado Shaikh, J

MUHAMMAD NAWAZ and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 82/I of 2010, decided on 31st March, 2011.

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

----S. 337-J/34---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(2)---Causing hurt by means of poison and zina liable to Tazir---Appreciation of evidence---Benefit of doubt---Un­explained delay of one month and 23 days in lodging F.I.R., due to which case of prosecution had become doubtful---Complainant had not produced any independent witness to prove the case---Female accused was referred to the lady Doctor for medical examination after nearly three months of alleged occurrence---Lady Doctor gave her opinion that accused had been used recently for sexual intercourse---Lady Doctor gave her opinion after receiving positive report of Chemical Examiner---Chemical Examiner's as well as Medico-legal reports, had lost evidentiary value, in circumstances---Relations between complainant and female accused/wife of complainant were strained; she had left the house of complainant and had filed suit for dissolution of marriage by way of Khula against the complainant---Trial Court in awarding conviction and sentence to female accused had relied upon medical evidence and report of Chemical Examiner while holding her guilty of zina, without any direct or indirect evidence or circumstances or ocular testimony to establish that such crime had actually been committed by accused---Prosecution case was that female accused in collusion with male accused administered intoxicant/poison to the complainant as a result of which complainant became unconscious, but no fact in proof had been brought by the prosecution on record---Contradictions in the statements of both the star witnesses had created doubts in the story of prosecution and story as mentioned in F.I.R. with regard to incident appeared to be concocted one---Conviction and sentence awarded to accused persons by the Trial Court were set aside and accused were acquitted and set free by giving them benefit of doubt.

(b) Criminal trial---

----Benefit of doubt---Entitlement--For entitlement to benefit of doubt to accused, it was not necessary that there should be many circumstances, creating doubt---Even if a simple circumstance would create reasonable doubt in a prudent mind about the guilt of accused then he or she would become entitled to such benefit not as a matter of grace and concession, but as a matter of right.

Malik Tariq Mehmood for Appellants.

Ch. Muhammad Satwar Sidhu, Additional Prosecutor'-General for the State.

Date of hearing: 31st March, 2011.

2011 P Cr. L J 1672

[Federal Shariat Court]

Before Agha Rafiq Ahmed Khan, C.J.

SABIR HUSSAIN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 53/L of 2010, decided on 2nd May, 2011.

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

----S. 18---Attempt to commit an offence punishable under Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Appreciation of evidence---Inordinate delay of about five days in lodging report---Explanation given by the complainant/victim in the F.I.R. that the legal heirs of accused persons beseeched the parents of the complainant/victim for compromise, appeared to be unnatural and an afterthought and it was not possible that after the tragedy of gang rape by two persons, the victim and her parents would keep mum for so many days and could not report the matter immediately to the Police---Victim had stated in the F.I.R. that after committing zina, when the witnesses came to the spot, accused fled away; and then she got up and put on her shalwar, but her brother as prosecution witness had given different version by deposing that his mother and brother's wife came at the place of incident and they put the clothes on the body of the victim---No independent witness had been cited, though in cross-examination the victim had stated that there were several houses around their house, but no person from the nearby had come forward to support the version of the complainant---Investigating Officers, found accused person innocent and recommended for the disposal of the case under 'C' class, but despite that, on the basis of some evidence, accused were challaned under S.18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, by one of the Investigating Officers---Lady Doctor who had examined the victim, had taken vaginal swabs and sent same to Chemical Examiner, but the report indicated that no semen was found in those swabs---Trial Court did not believe the story of victim regarding the gang rape, but convicted accused persons under S.18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 for attempt to commit zina--Oral and ocular testimony had been totally belied by the medical evidence of not only the Lady Doctor, but by Chemical Examiner, whose report was in the negative---Prosecutrix herself nowhere in the F.I.R. or in the court had stated that accused had made any attempt to commit rape upon her---Prosecution evidence was not sufficient to bring home the guilt of accused persons for the offence for which they had been convicted---Conviction and sentences awarded to accused 'persons by the Trial Court were set aside and they were acquitted of the charge and were released, in circumstances.

Mehr Tanvir Ahmad Jangla for Appellants.

Ch. Muhammad Sarwar Sidhu, Additional Prosecutor-General Punjab for the State.

Date of hearing: 2nd May, 2011.

2011 P Cr. L J 1792

[Federal Shariat Court]

Before Syed Afzal Haider and Shahzado Shaikh, JJ

Mst. BASRAN BIBI---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No. 51/I of 2009, decided on 2nd February, 2011.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 201---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(2)---Qatl-e-amd and zina-bil-jabr liable to Tazir---Appreciation of evidence---Complainant as prosecution witness remained consistent on his allegation during his lengthy cross-examination---Recovery of incriminating articles relating to case had been proved by the prosecution witnesses, such as disinterment of corpse, exhumation of graves of deceased, recovery of skeletons of the deceased disclosure of co-accused in a video cassette in that regard where he confessed his guilt before Judicial Magistrate---All other witnesses, including doctor had corroborated each other, in that respect---Trial Court, however convicted accused on the statement of co-accused made by him under S.164, Cr.P.C. who implicated the accused---Such statement was of no help to prosecution because same was not a substantive piece of evidence, its use being limited---Investigating Officer had clearly admitted in his cross-examination that during investigation, nothing as incriminating evidence could come on record for implication of accused---Accused had lost her two children in the incident which required deeper analysis---Ninkahnama produced by accused of her marriage with co-accused performed five years after the death of her first husband and such like other factors had pointed towards absolute coercive outstanding circumstances---Woman had stated that she used to be kept under sedation and detention, when co-accused/her second husband used to go to work---Under said absolute coercive conditions, accused could not be convicted even under charge of zina---Keeping all the factors in mind, the entire evidence, episodes and conduct of accused had also to be carefully analysed further---Conviction and sentence awarded to accused under S.302(b), P.P.C. and under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, were set aside and instead, he was convicted under S.201, P.P.C. and awarded sentence of seven years' R.I.

Jawad Ayub and others v. The State 2005 PCr.LJ 1994 and Mst. Zafran Bibi v. The State PLD 2002 FSC 1 ref.

Syed Muhammad Tayyab for Appellant.

Muhammad Sharif Janjua for the State.

Date of hearing: 2nd February, 2011.

2011 P Cr. L J 1855

[Federal Shariat Court]

Before Shahzado Shaikh, Dr. Fida Muhammad Khan and Rizwan Ali Dodani, JJ

MUHAMMAD UMAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 111/L of 2010 and Criminal Reference No. 3/I of 2011, decided on 20th August, 2011.

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

----Ss. 10(4) & 11---Zina-bil-Jabr liable to Tazir and abduction---Appreciation of evidence---Benefit of doubt---Besides the fact that no grouping of semen was made to hold accused responsible and create his nexus with offence, some major discrepancies and contradictions existed which had made the case of prosecution to the extent of accused highly doubtful---Statement of complainant did not inspire confidence, in his cross-examination he had stated that he saw his daughter in naked condition while her hands were also tied---Victim girl did not say a word like that---Complainant had stated that except the two accused, no one else was present at the relevant time, but the victim referred to the presence of two other unknown persons who were standing as guards over there---Two real brothers of the complainant, who accompanied complainant during the search of the victim/daughter of the complainant, had not appeared as prosecution witnesses to corroborate their version---Was also questionable as to why the occurrence continued for about 9 hours and accused and his absconding co-accused kept on waiting till the arrival of the complainant party---Complainant and his victim daughter in their affidavits had exonerated accused and had no objection, if he be acquitted of the charge---Contents of said affidavits and statements were confirmed by the counsel for complainant---Contents of affidavits, had spelled out that accused was innocent and had neither abducted the girl nor had committed zina-bil-jabr with her---Offence though was not at all compoundable, the statements as well as affidavits submitted by the complainant party, disclosed retraction from their earlier statements and created gravest doubt about the veracity of their deposition, which was worthy of no credence---Any conviction, especially the one carrying capital punishment, could not be awarded on the testimony of such witnesses who lacked credibility and reliability---Case of prosecution against accused was highly doubtful and he was entitled to get the benefit thereof---Extending benefit of doubt to accused, he was acquitted of the charges and was released, in circumstances.

Mian Muhammad Tayyab Wattoo for Appellant.

Muhammad Aamer Najeeb Watoo for the Complainant.

Ch. Muhammad Sarwar Sidhu, Additional Prosecutor-General for the State.

Date of hearing: 10th August, 2011.

2011 P Cr. L J 1964

[Federal Shariat Court]

Before Agha Rafiq Ahmed Khan, CJ. and Shahzado Shaikh, J

ZAFAR ALI---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No. 61/I of 2010, decided on 5th April, 2011.

Penal Code (XLV of 1860)---

----S. 376---Rape---Appreciation of evidence---Delay in lodging F.I.R. had plausibly explained by the complainant---Testimony of the victim and her medical examination were important piece of evidence in cases of rape and conviction could be based on the solitary statement of victim, if same was corroborated and supported by medical examination---Sexual intercourse with the victim by accused was proved by the medical evidence---Statement of the victim had fully implicated accused for having committed rape upon her---Evidence of victim had not been shaken in spite of lengthy cross-examination---Direct charge of rape against accused by the victim supported by medical evidence; and report of chemical examiner, coupled with a clear motive on the part of accused was sufficient to bring home the charge of zina against accused---Evidence of victim girl was natural and supported by medical evidence and also prosecution witness, which was sufficient to bring home the guilt of accused beyond any shadow of doubt---No reason and ulterior motive existed to falsely involve accused in the case and there was no enmity between the parties so as to make such an allegation, that would stigmatize the minor girl and her poor family for all life---Defence version on the face of it was preposterous and had not been substantiated, in any respect---Case against accused stood proved beyond any shadow of reasonable doubt and he had been rightly convicted and sentenced under S.376, P.P.C.---Conviction and sentence awarded to accused by the Trial Court were maintained, in circumstances.

Tariq Khushnood Qureshi for Appellant.

Ch. Muhammad Sarwar Sindhu, Additional Prosecutor-General Punjab for the State.

Date of hearing: 5th April, 2011.

2011 P Cr. L J 202

[Gilgit-Baltistan Chief Court]

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

GHULAM MUHAMMAD---Appellant

Versus

THE STATE through Police Station, Skardu---Respondent

Criminal Appeal No. 3 of 2010, decided on 2nd November, 2010.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, enhancement of---Case was an open and shut one---Prosecution had adduced witnesses who were very natural in their narration of the circumstances of the case, and had not improved on their statements recorded under S.161, Cr.P.C.---Statement of F.I.R. lodger, who was real brother of the deceased, had given a factual and natural narration; wherein he had named accused and his presence near his house; he had also disclosed the motive of the case---Fact regarding the motive as well as the accompanying of the deceased from the place of occurrence in broad-daylight had not been shattered by the defence---.30 bore pistol along with the cartridges were recovered on the pointation of accused and were taken into custody as evidence---Statement of independent witness who had supported the prosecution case to the hilt, had not been rebutted in any way---Recovered empty shell as well as the .30 bore pistol were sent to the Forensic Science Laboratory, which had been judged as positive and to have been fired from same pistol---Accused in his statement recorded under S.342, Cr.P.C. had taken the plea that the deceased procured the weapon of offence front a roadside plot and tried to use the same on accused; and the fatal bullet hit deceased during the scuffle, resulting in the death of the deceased---Said statement of accused seemed to be a farfetched story---If such statement of accused was rejected as a whole, accused could not be exonerated from the offence---Straight unrebutted case of premeditated murder was on the record against accused, who had been dealt leniently by the Trial Court and no mitigating circumstances existed where lesser punishment could be called for---Sentence awarded to accused under S.302(b), P.P.C. was enhanced from life imprisonment to death sentence for commission of murder of deceased in circumstances.

1998 PCr.LJ 216; 1999 SCMR 1772; 2000 MLD 208; 2004 YLR 1924; 2005 MLD 389; 2008 YLR 508 and 2001 SCMR 290 SC ref.

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

----S. 342---Examination of accused---Believing part of the statement of an accused recorded under S.342, Cr.P.C. and disbelieving of the portion of the said statement, should be based on the gathered material on file and the circumstances of each case---Binding down of the courts to take a statement of an accused as a whole or to discard it totally would seem unfair---Court was bound to get down to the bottom of every issue in the manner which was confidence-inspiring, keeping in view the circumstances of the case as well as depending on the mentality of peculiar circumstances of the area.

Amjad Hussain for Appellant.

Deputy Advocate-General for the State assisted by Malik Haq Nawaz for the Complainant.

2011 PCr. LJ213

[Gilgit-Baltistan Chief Court]

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

AFZAL and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 7 of 2009, decided on 26th October, 2010.

Penal Code (XLV of 1860)---

----Ss. 100 & 302/34---Qatl-e-amd---Appreciation of evidence---Right of private defence---Scope---Sentence, reduction in---Right of private defence had been extended under law where reasonable apprehension of danger would arise from an attempt or threat to life---Such right was a right of protection and not of aggression---Law did not provide the inflicting of more harm than was necessary and did not confer the leniency of crossing the limit of inflicting more harms than was necessary, otherwise it would amount to becoming an offence---Circumstances of the right of private defence depended upon the apprehension of the eminent danger and the necessary steps to disarm or do away with the aggressor---Law did not give an individual the right to go on repeating firearm shots on the aggressor after he had been neutralized and then using axe blow on the deceased repeated by Lathi blows and stones used as projectiles when the aggressor had been incapacitated---In the present case, the medical report provided that the deceased had received a number of injuries on the body, thereby crossing the limits laid down by law in self-defence---Privilege of S.100, P.P.C. as pleaded by accused in his statement recorded under S.342, Cr.P.C., could not be given to accused, in circumstances---Part allegedly committed by co-accused, was not proved from the record---Considering the mitigating circumstance accused who was awarded death sentence by the Trial Court was converted into life imprisonment, which conviction and sentence of co-accused, was set aside and he was directed to be released, in circumstances.

1987 PCr.LJ 1502; 1989 PCr.LJ 2179; 1992 SCMR 2007; PLD 1994 SC 879; PLD 2003 Pesh. 123; 2003 SCMR 459; PLD 2005 Quetta 99; 2006 SCMR 1139; 2008 PCr.LJ 613 and 2008 MLD 686 ref.

Malik Haq Nawaz and Amjad Hussain for Appellants.

Deputy Advocate-General for the State.

Date of hearing: 26th October, 2010.

2011 P Cr. L J 227

[Gilgit-Baltistan Chief Court]

Before Raja Jalal-ud-Din, CJ and Sahib Khan, J

JUMA KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1 of 2009, decided on 30th November, 2010.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7(a)---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Qatl-e-amd, terrorism and possession of arms---Appreciation of evidence---Statements of the eye-witnesses recorded in the case, being within time, fabrication and planting of evidence was not possible---F.I.R. recorded well within time, was very specific wherein the role of accused was very much evident---Time of the occurrence as well as the locality where the murder had taken place, did not leave any room for mistaken identity---Motive put forward had also not been challenged or rebutted---Recoveries of the weapons of offence from accused after the occurrence, were not thoroughly contested by the defence---Medical report proved that death of the deceased was a result of fire shots from a .12 bore shotgun as pointed out by the eye-witnesses and proved from the expert opinion---F.I.R. promptly lodged disclosed the names of the eye-witnesses, the weapon of offence used and the manner in which the incident took place along with the motive---No chance of mistaken identity existed---No suggestion had been put forward by the defence whereby it could be presumed that accused had falsely been implicated in the case---Identification of the weapon of offence at the time of commission of offence had been proved from the recovery of the same from accused within good time---No doubt the eye-witnesses were closely related to the deceased, but their presence at the spot at the time of occurrence' was well justified from the evidence---Record had shown that accused had committed a murder in 1955 and had been convicted; it seemed that accused was a habitual offender and his previous conduct was also not very helpful to him---Present case was fit one for conviction and a capital punishment as all the ingredients necessary for conviction were present on record---Death sentence awarded to accused under S.302(b), P.P.C. and S.7(a) of Anti-Terrorism Act, 1997 was maintained in circumstances.

1979 PCr.LJ 275 and 2009 PCr.LJ 547 ref.

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

----S. 154---First Information Report---Scope---F.I.R. was an information regarding an occurrence to the Police authorities; and it could also be taken as a very good piece of initial evidence, which had to be backed up by the narration of the eye-witnesses.

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

----S. 324---Anti-Terrorism Act (XXVII of 1997), S.7(b)---Attempt to commit qatl-e-amd and act of terrorism not causing death---Appreciation of evidence---Sentence of accused under S.324, P.P.C. and S. 7(6) of the Anti-Terrorism Act, 1997 to suffer 10 years' R.I. and fine of Rs.1,00,000 seemed to be very much out of place and off the record from the material gathered by the prosecution---Statements of the prosecution witnesses had established that accused had made no efforts or moved for an attempted murder on his pursuers after the initial fire shots on the deceased---Accused was stated to have opened aerial fire shots with his pistol while fleeing the place of occurrence---Conclusion reached by the Trial Court regarding an offence under S.324, P.P.C. was completely out of context---Conviction of accused under S.324, P.P.C., was unnecessary and uncalled for---Accused was acquitted from the charge and his sentence of 10 years' R.I. and fine of Rs. 1,00,000, was set aside.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), Ss.7(a) & 25---Qatl-e-amd and terrorism---Plea for a lesser punishment on ground of extremely old age---Cold blooded murder of deceased having fully been proved from the gathered material on record, accused deserved no leniency in the matter---Accused had made full preparation by arming himself to the teeth by a loaded shotgun as well as a loaded pistol planting himself at the spot from where the deceased (doctor) had to pass after attending his clinic---Accused had a motive and had shown that it was a deliberate well planed execution---Accused, in circumstances, did not deserve any leniency for his act done at old age---Courts should not exercise the option and privilege of giving lesser punishment for offences for which the law had laid out punishment---Privilege of reduction as well as the forgiving and pardoning the offender should be with the complainant or the relevant legal heirs of the deceased---Relaxation of sentence claimed by accused was unfounded and the privilege of the same could not be extended to accused, simply because he was of very old age (92 years) or infirm---Death sentence awarded to accused under S.302(b), P.P.C. and 7(a) of Anti-Terrorism by Administrative Judge Anti-Terrorism, was maintained and murder reference made under S.374, Cr.P.C. and S.25 of Anti-Terrorism Act, 1997, was confirmed, in circumstances.

Munir Ahmad for Appellant.

District Attorney, Khalid Mehmood for the State.

Date of hearing: 30th November, 2010.

2011 P Cr. L J 370

[Gilgit-Baltistan Chief Court]

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

ISHTIAQ and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 07 of 2010, decided on 3rd November, 2010.

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

----Ss. 302/324/34---Anti-Terrorism Act (XXVII of 1997), Ss. 6/7/21-H---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Qatl-e-amd, attempt to commit qatl-e-amd, terrorism and recovery of arms---Appreciation of evidence---F.I.R. had been lodged well in time and contents of F.I.R. disclosed the names of the injured, the deceased and that of the witnesses---F.I.R. also disclosed the type of the weapons used in the offence---Narration of the F.I.R. regarding the facts of the case had been put forward in a very natural manner and was confidence inspiring--- During the cross-examination, minor improvements had been brought on record, which were not of the intensity to shatter the veracity of the said witnesses---Was very natural for the witness in the dark to identify an individual from headlights of vehicle---Accused as well as the witness belonged to the same locality and question of mistaken identity did not arise---Injured witness in his examination in the Trial Court had fully supported the prosecution case---Other two witnesses had fully deposed against accused persons and the role played by them as well as the arms used for the commission of the offence by accused persons, were identified---Two very important recovery witnesses had proved the recoveries of the weapon used by accused---Both witnesses were impartial Police personnel who did not belong to the locality and did not have any axe to grind---Preparation of the recovery memos did not suffer from any infirmity---Recovered empty shells had matched the weapons of offence used which had proved against accused---Incident was a result of sectarian hatred between the parties as many a case had occurred within the vicinity of the complainant and accused party---Murders and attempted murders had occurred in the past---Statements of the witnesses, examined backed up by the motive and weapons of offence proved against the accused---Sentence awarded to accused by the Trial Court, was upheld, in circumstances.

PLD 1963 Kar. 805; 1983 SCMR 1292; PLD 1990 Pesh. 10; 1990 PCr.LJ 1018; 1998 SCMR 1156; 2006 SCMR 1846; 2006 YLR 3213; 2006 MLD 480; 2006 PCr.LJ 1671; 2007 YLR 954; 2009 PCr.LJ 1226; 2010 SCMR 97; 2010 SCMR 385; 2010 PCr.LJ 211; 1987 SCMR 960; 1990 PCr.LJ 288; PLD 1995 SC 1; 1996 SCMR 908; PLD 2002 SC 558; 2003 YLR 2175; 2004 SCMR 331; 2006 SCMR 1567; 2006 SCMR 1801; 1990 PCr.LJ 1765 and PLD 1992 Pesh. 56 ref.

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

----Ss. 302/324/34--- Anti-Terrorism Act (XXVII of 1997), Ss.6/7/21-H---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Qatl-e-amd, attempt to commit qatl-e-amd, terrorism and recovery of arms---Appreciation of evidence---Confession---Evidentiary value---Privilege of the prosecution to adduce or abandon any witness---Non-­examination of the other occupants of the vehicle in question; was not necessary when there was already a sizeable amount of material placed by the prosecution against accused on record---Prosecution had the privilage to adduce or abandon any witness which it would think unnecessary---Confessional statements recorded under S.21-H of Anti-Terrorism Act, 1997, could by itself not constitute a material evidence on which a criminal case could be based for conviction---Confessional statement recorded by a Police Officer would be very useful to rely on, but it could be read as a piece of evidence along with the other material on record.

Malik Haq Nawaz for Appellants.

Deputy Advocate-General for the State.

Date of hearing: 3rd November, 2010.

2011 P Cr. L J 389

[Gilgit-Baltistan Chief Court]

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

NAVEED HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 17 of 2009, decided on 19th October, 2010.

(a) Penal Code (XLV of 18O0)---

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 21-H---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Qatl-e-amd, terrorism and possession of arms---Appreciation of evidence---Identification of accused immediately after the occurrence being not possible, his name did not appear in the F.I.R.---Substitution of two empty shells, was not possible which was found from the scene and were sealed in the presence of witness for onward transmission---Statements of witnesses recorded under S.161, Cr.P.C. as well as the statements recorded by competent Judicial Magistrate under S.164, Cr.P.C., did not suffer from any defect---All the possible legal formalities were completed before recording of such statements---Such statements were voluntary and true---Identification parade was conducted by a very competent and impartial Assistant Commissioner fulfilling all the formalities of the identification parade in presence of witnesses, who deposed in favour of the prosecution and their statements had not been shattered by the defence---Such fact had provided strong inference against accused and proved the case against him and said piece of evidence was a strong link in the commission of offence---Defence had failed to bring on record any circumstances whereby it could be considered that accused had been involved in the case due to mala fide intention other than the motive put forward by the prosecution---Prosecution had succeeded in establishing the guilt of accused---Judgment of conviction and sentence passed against accused was based on fact; and nothing was available to indicate that judgment passed by the Trial Court was based on any error of law or was opposed to well established principles of judicial approach; or it could in any manner be characterized as unjustified---Sentence of death was rightly and carefully awarded to accused, which did not admit of any interference by Chief Court.

2006 PCr.LJ 1671; 2006 PCr.LJ 1693; 1998 PCr.LJ 1236; 1998 PCr.LJ 2104; 1983 PCr.LJ 113; 1983 PCr.LJ 1398; 2010 GBLR 249; 1982 PCr.LJ 720; 1982 PCr.LJ 724; 1982 PCr.LJ 635; 1982 PCr.LJ 642; PLD 1989 SC 20; 1982 PCr.LJ 635; PLD 1963 Pesh. 161; 1996 PCr.LJ 528; 2010 GBLR 256; 1971 SCMR 326; 1995 SCMR 1793; PLD 1996 SC 305; 1997 SCMR 1000; 2001 PCr.LJ 412; 2001 MLD 807; PLD 2002 SC 558; 2004 PCr.LJ 1697; PLD 2006 SC 354; PLJ 2006 SC 931 and 2009 SCMR 1440 ref.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 21-H---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Qatl-e-amd, terrorism and possession of ' arms---Appreciation of evidence---Confessional statement of accused---After the amendment in S.21-H of Anti-Terrorism Act, 1997 whereby a proviso had been added to the section, legislature had made it mandatory that statement under said section would be admissible in evidence, which had to be read with the provision of S.6 of Anti-Terrorism Act, 1997.

Johar Ali and Amjad Hussain for Appellant.

Dy. A.-G. for the State.

Date of hearing: 19th October, 2010.

2011 P Cr. L J 403

[Gilgit-Baltistan Chief Court]

Before Raja Jalal-ud-Din, CJ

FAIZAN ABBAS and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 77 of 2010, decided on 2nd December, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/114/34---West Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-e-amd, attempt to commit qatl-e-amd and possession of arms---Bail, refusal of---Result of opening of fire shots by accused was that one person died due to receiving of fire shot and other one was injured---Manner in which the offence had taken place and the planning of the same, did not entitle accused for concession of bail despite the fact that they were minors according to their school leaving certificate presented in the court---Minors acting in a gruesome manner whereby human lives were lost, would not confer the right of concession of bail---Both parties had indulged in criminal activities whereby many persons had been killed and injured from both sides---If the concession of bail of minors' was encouraged, then both the parties would come old in the field by enticing and encouraging minors to commit murders and later on availing the concession of bail on the ground of minority---If at all the case was consistent with co-accused and if court below had erred in granting bail to co-accused, it would not entitle the remaining accused persons for the concession of bail---Role assigned to bailed out co-accused was at par with accused persons, except that no recovery had been taken place from co-accused---Where the difference between the role of accused depended on the non-recovery of weapon of offence from co-accused, the courts had to be very conscious before granting bail.

Jehanzeb Khan for Petitioners.

Khalid Mehmood, D.A. for the State.

2011 P Cr. L J 448

[Gilgit-Baltistan Chief Court]

Before Muzaffar Ali, J

HASSAN WALI and 3 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 49 of 2010, decided on 19th October, 2010.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324/34---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.71---Qatl-e-amd and attempt to commit qatl-e-amd---Bail---Competency of Judicial Magistrate to grant bail---Judicial Magistrate granted bail to accused persons touching the merits of the case tentatively and declaring the case to be of further inquiry---Complainant party along with the State challenged the grant of bail before the court of Additional Sessions Judge, who cancelled the bail---State Counsel had contended that accused having been charged for murder, which was exclusively triable by the Court of Session; and that Judicial Magistrate was not competent to grant bail to accused persons---Judicial Magistrate was not competent to grant bail in cases exclusively triable by the Court of Session---Held, Area Judicial Magistrate was competent to hear a bail matter; and to decide, if moved even the case was exclusively triable by the Court of Session upto the time, the matter was committed to the Trial Court and the Trial Court seized of proceedings, but the Judicial Magistrate was to exercise that discretionary power with full judicial diligence; and concisely in cases of heinous nature like murder case---Order cancelling bail passed by Additional Sessions Judge was maintained.

1998 MLD 1958; 1998 MLD 1985 and Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCMR 599 ref.

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

----Ss. 164, 497 & 556---Recording of confessional statement---After recording of confessional statement in any case, the Magistrate would become `interested' within the definition of S.556, Cr.P.C.; and he would become liable to be called as witness in the case---Magistrate, in circumstances should neither try the case nor to enter into the merits of the case tentatively to decide the bail matters in the case.

PLD 1957 (W.P.) Pesh. 128 ref.

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

----S. 497---Bail grant of---Issuance of notice to complainant party---Magistrate was to issue notice to the complainant party before dealing the bail matter.

2004 PCr.LJ 968 ref.

Amjad Hussain for Petitioners.

Deputy Advocate-General for the State.

M/s. Ehsan Ali and Muhammad Umar Farooq for the Complainant.

2011 P Cr. L J 565

[Gilgit-Baltistan Chief Court]

Before Sahib Khan and Muzaffar Ali, JJ

KALB-E-ALI and 2 others---Petitioners

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU and 4 others---Respondents

Writ Petition No. 47, Criminal Revision No. 11 and Criminal Miscellaneous No. 62 of 2010, decided on 9th August, 2010.

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

----Ss. 9(b), 18, 24 & 32---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.71---Writ petition---Maintainability---Reference on complaint made by bank against fraud allegedly committed by the petitioners---Bank in written complaint had alleged that petitioner in connivance with another petitioner who was Branch Manager of the bank had committed fraud causing loss and damage to the bank---Reference was made to Accountability Court on said complaint---Petitioners who were in jail under interim judicial remand issued by the Accountability Court, filed writ petition---Maintainability of writ petition was assailed on the point of jurisdiction of Chief Court with the plea that National Accountability Ordinance, 1999 being special in nature, had ousted the jurisdiction; of Chief Court to entertain the petition---Special Prosecutor neither had fortified his plea by referring any case law nor any specific provision in the National Accountability Ordinance, 1999 was available which purported ouster of writ jurisdiction of Chief Court---Futile efforts were made to curtail the powers of the courts including Chief Court to exercise their powers vested in then under criminal law---No law either special or general, if passed, could stand in the way to curtail or oust the powers of the high judiciary conferred upon, either by Constitution or by other laws---Chief Court also having powers of High Court and vested with the powers of writ jurisdiction conferred upon it by Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, writ petition was maintainable.

PLD 2001 SC 624; 2005 SCMR 1291; 2002 SCMR 410 and PLD 2000 Lah. 508 ref.

(b) National Accountability Ordinance (XVIII of 1990)---

----Ss. 18, 31-C & 31-D---Cognizance of offence---Reference to the court---Inquiry, investigation or proceedings in respect of imprudent bank loans---Case related to bank loan, either `imprudent' or of "wilful default "---National Accountability Ordinance, 1999 being special law had introduced special procedure to initiate investigation, inquiry, arrest and taking cognizance of offences under Ordinance by the Accountability Court---Section 31-C had been incorporated in National Accountability Ordinance, 1999 to differentiate the offences under the said Ordinance relating to financial institutions within the domain of State Bank---Section 31-D of National Accountability Ordinance, 1999 gave mandate to the Governor State Bank to file reference in respect of "imprudent loans", "defaulted loans" or "rescheduled loans" obtained from any financial institution---National Accountability Bureau had been ousted from initiating or conducting inquiry, investigation or proceedings in the cases, notwithstanding the procedure provided by S.18 of the Ordinance, had been followed properly, unless the Governor State Bank would make the reference in that regard--Special Prosecutor had conceded that reference had not been made by the Governor State Bank---Very initiation of inquiry/investigations and all proceedings including the arrest of the petitioners, in circumstances, was in violation and in derogation of mandatory provision of S.31-D of National Accountability Ordinance, 1999---Arrest of the petitioners, in circumstances was without lawful authority and nullity---Petitioners were ordered to be released from the judicial custody.

Doulat Ali and another v. State and another 2010 PCr.LJ 1311; PLD 2005 Lah. 692; PLD 2001 Kar. 419; PLD 2001 SC 607 and PLD 2001 Kar. 311 ref.

(c) Words and phrases---

----"Prudent", defined and explained.

(d) Words and phrases---

----Expression "Prudent investor rule", meaning and connotation of.

Manzoor Ahmed and Mir Akhlaq Hussain for Petitioners.

Deputy Director/Special Prosecutor for Respondents.

I.O. of the case present.

Date of hearing: 9th August, 2010.

2011 PCr.LJ 991

[Gilgit-Baltistan Chief Court]

Before Sahib Khan, J

RIAZ GUL---Petitioner

Versus

THE STATE through Superintendent of Police, Gilgit---Respondent

Criminal Miscellaneous No. 6 of 2011, decided on 11th April, 2011.

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

----S. 561-A---Inherent powers of High Court under S. 561-A, Cr. P.C.---Scope---Object of S.561-A, Cr.P.C. was nothing, except to confer jurisdiction and to bring the matters provided under said section for purpose of substantial justice; and to prevent abuses of process of court within the domain and power of the. High Court---Said inherent powers, were exercisable where it would appear that proceedings were carried, mala fide, coram non judice or in violation of the procedure and law at any stage, without defining the forum---Inherent jurisdiction under S.561-A, Cr.P.C., in its terms and meanings, were very wide---High Court was fully empowered to exercise jurisdiction so vested for the purpose mentioned in S.561-A, Cr.P. C.

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

---Ss. 169 & 170---Release of accused when evidence deficient and sending case to Magistrate when evidence was sufficient---Scope---Power to release of accused under custody on executing a bond with or without sureties was strictly stipulated with conditions that there could not be sufficient evidence; or any reasonable ground of suspicion to justify the charges levelled against accused for the purposes of submission of challan/report before the court.

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

----Ss. 169, 170 & 561-A---Penal Code (XLV of 1860), Ss.302/109---Qatl-e-amd---Discharging and release of accused---Petitioner sought---Direction to public authorities to arrest respondent being main accused in the F.I.R. for investigation and trial under law---Respondent was directly charged in the F.I.R. by assigning a specific role---Two prosecution witnesses in their statement got recorded under S.161, Cr.P.C., also charged the respondent and corroborated the story given in the F.I.R.---In view of said factual position, it could not be presumed that there was insufficient evidence with the Investigating agency; or reasonable grounds existed of suspicion to justify the forwarding of accused to Magistrate or submit a challan before the court of law, release of respondent by the Investigating Officer in a non-bailable case was nothing except to exceed his limits---Explanation of Investigating Officer regarding the credibility of witnesses belonging from complainant party, was beyond the power of Investigating Officer; and purely a subject within the domain of the court of law as the power of S.H.O./Investigating Officer under S.170, Cr.P.C. was limited--Investigating Officer, in circumstances, had violated the powers vested in him under Ss.169 & 170, Cr.P.C.-Release order of respondent passed by the Investigating Officer, was recalled, in circumstances and S. H.O. was directed to take respondent into custody and proceed to complete the investigation and submit the challan in the court of law.

Rais Khan for the Petitioner.

Respondents Nos. 2 and 3 in person.

Manzoor Ahmad, Muzafar-ud-Din and Amjad Hussain for Respondent No.4.

2011 P Cr. L J 1022

[Gilgit-Baltistan Chief Court]

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

ASADULLAH alias SHAKIRULLAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 35 of 2010, decided on 14th December, 2010.

Penal Code (XLV of 1860)---

----Ss. 302/337-A/337-11/440/34/109/114---Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7/21-C(7)(f), 21-F, 21-G & 23---Juvenile Justice System Ordinance (XXII of 2000), Ss.4 & 14---Qatl-e-amd, causing Shajjah, rash or negligent act and mischief-Application for transfer of case from Anti-Terrorism Court to Juvenile Court---Contention of accused was that he being minor, could only be tried by court specially constituted under Juvenile Justice System Ordinance, 2000, irrespective of the charge under Anti-Terrorism Act, 1997---Deputy Advocate General had submitted that mere juvenility of accused who was charged under Ss. 6 & 7 of Anti-Terrorism Act, 1997 coupled with other charges of P.P. C., could not take away the jurisdiction of a court constituted under Anti-Terrorism Act, 1997 having exclusive jurisdiction over the charges of Anti-Terrorism Act, 1997---Anti-Terrorism Act, 1997, which was a special law was enacted for the trial of the scheduled offences provided under the said Act---Juvenile Justice System Ordinance, 2000 was also a special law and was for trial of special class of offenders defined thereunder, and said Ordinance provided exclusive jurisdiction to court constituted thereunder in a case where an accused was below the age of 18 years---Said Ordinance being later law, had further provided that its provisions would not be in derogation of any law, but would be in addition to laws prevailing at the moment when said Ordinance, was promulgated---Anti-Terrorism Act, 1997 was enforced in 1997, much prior to the Juvenile Justice System Ordinance, which was promulgated, in 2000---Later law/Juvenile Justice System Ordinance, 2000, in circumstances, would never affect provisions of Anti-Terrorism Act, 1997---Section 14 of Juvenile Justice System Ordinance, 2000 had strengthened the view that the court constituted under Anti-Terrorism Act, 1997 had jurisdiction over the scheduled offence, irrespective of any limit of age or any other class of offenders---Section 21-G, which was latest insertion in Anti-Terrorism Act, 1997, had overriding effect over all the related provisions and provided exclusive jurisdiction to the court constituted under Anti-Terrorism Act, 1997 over the offence defined in said Act by an offender including a child/minor.

2002 PCr.LJ 1235; 2008 PCr.LJ 710; 2005 MLD 353; 2003 MLD 431; 2007 PCr.LJ 1011; PLD 2004 Lah. 779; 2006 PCr.LJ 921 and PLD 2006 Kara 331 ref.

Malik Haq Nawaz for Petitioner.

Deputy Advocate-General for the State.

Amjad Hussain for the Complainant.

2011 P Cr. L J 1222

[Gilgit-Baltistan Chief Court]

Before Sahib Khan and Muzaffar Ali, JJ

ISMAIL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 11 of 2011, decided on 18th April, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---West Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-e-amd and possessing unlicensed arms---Bail, grant of---Despite very nomination of both accused in equal manner, one of accused was released under S.169, Cr.P.C. for which evidence was created after many days of the occurrence without any legal or moral justification---Complainant had also engaged a counsel, who did not file any private complaint under Ss.200/204, Cr.P.C.---Right from the start of the investigation till acquittal of accused at a mid stage of the trial under S.13 of West Pakistan Arms Ordinance, 1965 the case seemed apparently of the collusion of accused party with functionaries of the State---Trial Court should not decide the case under S.13 of West Pakistan Arms Ordinance, 1965, in a hasty manner as same was part of main case, fate of which was yet to be decided---Trial Court was expected to exercise judicial restraint and instead of passing order under S.265-K, Cr.P.C. case was to be disposed of along with the main case---Accused was admitted to bail, in circumstances.

Haq Nawaz for Petitioner.

Additional Advocate-General for the State.

Pir Muhammad for the Complainant.

Date of hearing: 18th April, 2011.

2011 P Cr. L J 1287

[Gilgit-Baltistan Chief Court]

Before Muzaffar Ali, J

Mst. SURI---Petitioner

Versus

HOME SECRETARY DISTRICT GILGIT and 6 others---Respondents

Criminal Miscellaneous No. 24 of 2011, decided on 17th May, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 176 & 561-A---Application by mother under S.561-A, Cr.P.C. for disinterment/exhumation of alleged dead body of her son with contention that said dead body was not of her son; and that an unknown dead body had been brought from another city by the Police in collusion with her enemy; and said body was neither shown to her nor to any notable of the area---District Magistrate/D.C. concerned was directed to conduct the exhumation/disinterment of dead body alleged to be of son of the applicant buried at village; and take sample of the dead body for D.N.A. test through District Health Officer and other Expert Doctors; and also to take samples of mother and brother of the alleged deceased person for making the determination, specifically; whether the dead body was of the son of the applicant or not, fixing appropriate date; and to send the said sample to a recognized laboratory; and after getting report, a copy of the report be sent to concerned Police.

Anisullah Khan for Petitioner.

Additional Advocate-General and Amjad Hussain for Respondents.

Date of hearing: 17th May, 2011.

2011 P Cr. L J 491

[Islamabad]

Before Muhammad Anwar Khan Kasi, J

Raja YASIR RAFIQUE---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail No. 2141-B of 2010, decided on 20th January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.380, 411 & 457---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14---Theft in dwelling-house, dishonestly receiving stolen property and lurking house-trespass---Bail, grant of---Police during investigation recovered certain gold articles from co-accused, who had already been' admitted to bail---Other co-accused, who was also on bail, had also got recovered certain gold articles from the portion of her house---Police had recovered some stolen- articles from the accused---Under the rule of consistency, coupled with the fact that the offences did not fall under the prohibitory clause of S.497(1), Cr.P.C., accused was also entitled to bail---Recoveries had been effected and there was an apprehension of tampering with the evidence---Accused was behind the bars for the last about 3-1/2 months; and the trial of the case could take a long time---Accused was admitted to bail, in circumstances.

2005 YLR 1672; 2009 YLR 106; 2007 YLR 394; 2006 YLR 2977; 2007 PCr.LJ 708; 2003 YLR 1910; 2009 SCMR 230; 2005 PCr.LJ 764 and 1996 PCr.LJ 347 ref.

Kazi Sheharyar Iqbal for Petitioner.

Rana Mujahid Raheem for the Complainant.

Shabbir Ahmad Abbasi, Learned Standing Counsel along with Shaukat Ali S.-I., Police Station Shahzad Town, Islamabad for the State.

2011 P Cr. L J 532

[Islamabad]

Before Riaz Ahmed Khan, J

MUHAMMAD WASIM KIANI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 01-B of 2010, decided on 18th January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.342, 448, 365, 406, 506, 452, 147 & 148---Wrongful confinement, house-trespassing, kidnapping, criminal breach of trust, criminal intimidation, etc. ---Bail, refusal of---Accused who had been charged by name in the F.I.R. was on duty at the time when forcible possession of plot was taken with the help of Police constables including accused---Police Official was not expected to take law into his hands and act in a manner which would bring bad name, not only to the Police Department, but also to the State---Mere fact that case did not fall within the prohibitory clause of S. 497, Cr. P. C., was not a ground for extending the concession of bail to accused---Bail was refused.

2002 SCMR 442 and 2007 PCr.LJ 1303 ref.

Syed Iftikhar Hussain Gillani for Petitioner.

Sardar Asmat Ullah Khan for the Complainant.

Raja Muhammad Yasin and Muhammad Ahmad S.-I. with record for the State.

2011 P Cr. L J 865

[Islamabad]

Before Riaz Ahmed Khan, J

IMRAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1 of 2011, heard on 27th January, 2011.

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

----S. 500---Criminal Procedure Code (V of 1898), S. 198---Defamation---Filing of complaint on behalf of a woman---When in a case under S.500, P.P.C., aggrieved person was a woman, on her behalf some other person could make a complaint, but with the leave of the court following procedure as provided in S.198, Cr. P. C.

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

----Ss. 500/506/293/354/34---Defamation, criminal intimidation, sale of obscene objects of young person and assault and criminal force to a woman with intent to outrage her modesty---Appreciation of evidence---Offence under S.500, P.P.C., being not a cognizable offence, Police could not start investigation directly, because for investigation of non-cognizable case, the Police was required to obtain order of the Magistrate---Police in such non-cognizable case could not register F.I.R. directly---In the present case, complaint was sent to the S.H.O. and F.LR. was registered, which was an incurable defect---S.H.O. could not investigate the case without prior approval of the Magistrate and registration of case under S.500, P.P.C., was unlawful, in circumstances---Allegation in the case no doubt was of heinous nature and alleged photographs were also objectionable, but case was to be decided on the basis of evidence produced and not on the basis of emotions---No evidence was available to the effect as to who took objectionable photographs and when---No evidence was on record showing that said photographs were actually distributed in the street; as no one from the street or even from the family had been produced to substantiate the allegation---No evidence was available that said photographs were actually prepared through computer---No independent witness was produced to support the case of prosecution---Mother of complainant in cross-examination had stated that . she herself had given the objectionable photographs to the Investigating Officer, whereas the case of the prosecution was that two photographs were recovered on the pointation of accused; and other photographs were also produced by accused---Prosecution, in circumstances had failed to establish a case against accused---Accused was acquitted of the charges levelled against him and was released, in circumstances.

1997 PCr.LJ 1128 ref.

Sardar Muhammad Shoaib Khan for Appellant.

Raja Muhammad Yaseen, Standing Counsel for the State.

Date of hearing: 27th January, 2011.

2011 P Cr. L J 888

[Islamabad]

Before Muhammad Anwar Khan Kasi, J

SOHAIL ANJUM---Petitioner

Versus

ZULFIQAR and another---Respondents

Criminal Miscellaneous No. 2020/BC of 2010, decided on 2iid March, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302/324/109/34---Qatl-e­-amd, attempt to commit qatl-e-amd---Cancellation of bail, application for---Principles---Neither accused was named in the F.I.R. nor any role was attributed to him in the incident and nothing was recovered from him---Trial Court, in circumstances, had rightly exercised its discretion by granting the concession of bail to accused as none could be deprived of liberty without sound reasoning and justification---Bail granted wrongly could be cured by punishing accused after the trial, if his guilt was proved, but there could not be any compensation, if a bail was wrongly refused---Courts should be reluctant to cancel the bail as the discretion exercised in favour of accused could not be interfered with unless there were strong and exceptional grounds warranting interference because considerations for cancellation of bail and -grant of bail were altogether different---Conclusion of trial would establish the guilt of accused---Petition for cancellation of bail was dismissed.

Qazi Adil Aziz for Petitioner.

Syed Nayyab Hussain Gardezi for Respondent No. 1.

Shabbir Ahmad Abbasi, Standing Counsel for the State.

2011 P Cr. L J 913

[Islamabad]

Before Riaz Ahmed Khan, J

SAFDAR ALI---Petitioner

Versus

S.H.O. POLICE STATION BAHARA-KAHU, ISLAMABAD and 7 others---Respondents

Writ Petition No. 2711 of 2009, heard on 18th February, 2011.

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

----Ss. 22-A, 22-B & 154---Constitution of Pakistan, Art.199---Constitutional petition---Petitioner/complainant filed report of alleged occurrence to the S.H.O. concerned who entered the report in the Daily Register and D.S.P. conducted inquiry---Petitioner in the meantime submitted application before Justice of Peace under Ss.22-A, 22-B, Cr.P.C. who came to the conclusion that dispute between the parties was one of civil nature and declined to order registration of case---Validity---Section 154, Cr.P.C. provided that S.H.O. concerned, on receiving the information regarding alleged offence, had to see, as to whether offence was cognizable or otherwise; if he would come to the conclusion that the information was, with regard to a cognizable offence, he was bound to register the case and had no authority to exercise the powers of a court---Even if it was presumed that actual dispute between the parties was one of civil. nature and was to be decided by the civil court, even then the S.H.O. by refusing the registration of case and deciding the main issue, had exercised the powers of a civil court---Information provided by the petitioner could be false, but alleged falsehood would not oblige the S.H.O. to refuse the registration of case---Accused in case of a false report, would have other remedy under the law to proceed against the person who had lodged false report against him---Inquiry conducted by S.H.O. or D.S.P., refusing the registration of case, was totally illegal and of no effect.

PLD 2007 SC 539 ref.

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

---Ss. 22-A & 22-B---Powers and duties of Justice of Peace---Scope and nature---Such power did not involve any jurisdiction, which could be termed as judicial'---Functions performed by Justice of Peace were merely administrative and ministerial in nature and character---Proceedings before Justice of Peace under S.22-A(6), Cr.P.C., were essentially summary in character---In such proceedings notice, if required, could be issued only to the concerned Police Officer and not to any private party as no direction adverse to any private party was to be issued in such proceedings---Direction to the relevant officer regarding activating any legal remedy of the complaining person, could not be termed as direction adverse to another party---Even a direction to Police Officer to comply with the mandatory provisions of law, could not be called a direction adverse to another person---Under S.22-A(6), Cr.P.C., Justice of Peace had to decide after examining information as to whether or not any cognizable offence was made out and the order was to be passed without holding trial or mini trial of the controversy---Since Justice of Peace was not supposed to decide the rights of the parties, he was not supposed to pass judicial judgment---Justice of Peace while deciding a case under Ss.22-A & 22-B, Cr.P.C. was not required to issue notice to persons against whom registration of case was required, but was required to summon the concerned Police Officer so that a direction could be issued to him to register a case.

PLD 2005 Page 470 and 2008 YLR 2301 ref.

Raja Rizwan Abbasi for Petitioner.

Raja Mujahid for Respondents Nos. 3 to 6.

Raja Muhammad Yasin, Standing Counsel along with Ishaq S.-I. with record.

Date of hearing: 18th February, 2011.

2011 P Cr. L J 958

[Islamabad]

Before Muhammad Anwar Khan Kasi, J

MUHAMMAD ISHTIAQ---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION SHALIMAR, ISLAMABAD and another---Respondents

Writ Petition No. 305/Q of 2011, heard on 17th February, 2011.

Penal Code (XLV of 1860)---

---Ss. 420, 468, 471 & 380/34---Constitution of Pakistan, Art.199---Cheating, forgery for purpose of cheating, using as genuine a forged document, theft in dwelling house---Constitutional petition---Petitioner had sought quashing of F.I.R., filed by complainant on the ground that a civil suit on the same subject was pending between the parties---Serious allegations were levelled by the complainant against petitioner---If, prima facie, an offence had been committed, ordinary course of trial before the Trial Court, should not be allowed to be deflected by resorting to constitutional jurisdiction under Art.199 of the Constitution---High Court, in such cases, had no jurisdiction to quash F.I.R. by appreciation of a document produced by the parties, because no document could be proved or disproved without going through the test of cross-examination or confrontation---Petitioner had an alternate remedy to raise objections at the time of framing the charge or during the trial through an application under S.249-A or S.265-K, Cr.P.C.---Trichotomy of powers delicately balanced in the Constitution, should not be disturbed, as each organ of the State had to decide the matters in its allotted sphere---Specific allegations levelled by a person who was residing abroad, without the test of trial could not be taken lightly---Petitioner would be having ample opportunity to refute the allegations before the Police or the Trial Court---No reason being available to upset the process of investigation, Constitutional petition was dismissed.

2006 SCMR 1192; 1993 SCMR 2177; PLD 1985 SC 134 and PLD 2007 SC 48 ref.

Muhammad Ilyas Siddiqui and Kashif Nawaz Siddiqui for Petitioners.

Shabbir Ahmad Abbasi for Respondent No. 1.

Date of hearing: 17th February, 2011.

2011 P Cr. L J 1241

[Islamabad]

Before Muhammad Anwar Khan Kasi, J

Mufti PERVAIZ MANZOOR---Petitioner

Versus

THE STATE and 2 others---Respondents

Writ Petition No. 782-Q of 2011, decided on 20th May, 2011.

Penal Code (XLV of 1860)---

----S. 406---Criminal Procedure Code (V of 1898), S.561-A---Constitution of Pakistan, Art.199---Constitutional petition---Quashing of F.I.R.---F.I.R. could not have been lodged after 4-1/2 years of the alleged incident and after six months of the filing of civil suit---Allegations in the F.I.R. did not seem to be justified on the basis of record---High Court under constitutional jurisdiction had ample powers to quash the proceedings of a criminal case; if no offence was made out---Dispute, in the present case, was entirely of civil nature, which was converted into criminal proceedings with ulterior motives---Powers under Art.199 of the Constitution or under S.561-A, Cr.P.C., by the High Court could be exercised in exceptional circumstances---F.I.R. was quashed.

Rifaqat Islam Awan for Petitioner.

Munawar Abbasi for Respondent No. 3.

Shabbir Ahmad Abbasi, Standing Counsel.

Khalid S.-I., Police Station Aabpara, Islamabad with record.

Date of hearing: 10th May, 2011.

2011 P Cr. L J 1357

[Islamabad]

Before Muhammad Anwar Khan Kasi, J

Syed HAMID SAEED KAZMI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 252-B of 2011, decided on 13th May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.409, 34, 109, 420, 468, 467 & 471---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust by the public servant, cheating, forgery, using as genuine a forged document and corruption---Bail, refusal of---Pilgrims of Hajj had alleged mismanagement, misconduct and high charges against the improper accommodation provided which was far from Baitullah Sharif---Record had suggested that co-accused was appointed as Building Inspector without remuneration on the direction of accused and Review Committee of Senate/National Assembly, had given a detailed report about the elements of corruption in hiring of low standard buildings at far off place against exorbitant rates---F.I.R. was lodged after proper inquiry and recording statements of concerned persons---No ill-will was shown by accused against the Investigating Agency or the Review Committee---Supreme Court had also issued direction for impartial investigation into the matter, whereupon the investigation team visited `Makkah Almukarama' to find out the facts of the case---Application of S.5(2) of Prevention of Corruption Act, 1947, would be considered by the Trial Court at proper stage---Without deeper appreciation of material available, active role and connivance of co-accused, could not be overruled, whose appointments were facilitated due to the insistence of accused---All documents and the inquiry reports, prima facie, had connected accused with the commission of offence---No case for bail having been made out bail petition of accused, was dismissed, in circumstances.

1995 SCMR 1249; 1995 SCMR 387; 2000 SCMR 107; 2001 SCMR 1040; 2002 SCMR 282; 2007 PCr.LJ 1282; PLD 2003 SC 668; 2009 YLR 880; 2001 YLR 802; 2007 YLR 1024; 2010 YLR 2244; 2005 PCr.LJ 1976; 2008 SCMR 196; 2004 SCMR 235; PLD 1956 SC 417; 2010 PCr.LJ 948; PLD 2011 SC 171; PLD 1995 SC 34 and PLD 1968 SC 310 distinguished.

1995 SCMR 1249; 1995 PCr.LJ 1802 and PLD 1995 Kar.73 ref.

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court for Petitioner.

Muhammad Abid Raja, Deputy Attorney-General with Ch. Niamat Ali AD/FIA/SIU and Khalid Naeem, AD (Legal) FIA for the State.

Date of hearing: 4th May, 2011.

2011 P Cr. L J 1388

[Islamabad]

Before Iqbal Hameed-ur-Rehman, C.J.

GHULAM FAREED---Appellant

Versus

MUHAMMAD DIN RANA and another---Respondents

Criminal Appeal No. 57 of 2011, decided on 25th May, 2011.

Penal Code (XLV of 1860)---

----S. 406---Criminal Procedure Code (V of 1898), S.417(2-A)---Criminal breach of trust---Appeal against acquittal---No money had been given by the complainant as a trust to accused, but was given for investment and profit---Contractual deal existed between the complainant and accused regarding which agreement was reduced into writing and there was no criminal breach of trust---Remedy available to the complainant, in circumstances, was resort to the civil court for getting his grievance redressed---Verdict of acquittal could not be interfered with unless strong evidence was available to establish the guilt---In order to disturb an order of acquittal, it must be. shown that the judgment of acquittal was either perverse or was manifestly wrong, with the result that miscarriage of justice had taken place---Findings of the Trial Court were well justified, which did not call for interference---For dispensation of justice, court had to watch the interest of both the sides and not the prosecution side alone---Impugned judgment not appearing to be perverse or arbitrary or based on non-appreciation or improper appreciation of evidence there was no reason to disagree with the conclusion arrived at by the Trial Court---Appeal against acquittal being without any merits, was dismissed, in circumstances.

Ch. Naeem Ali Gujjar for Appellant.

2011 P Cr. L J 1578

[Islamabad]

Before Muhammad Anwar Khan Kasi, J

AMIR AMAN ULLAH KHAN---Petitioner

Versus

NAIYLA NAWAZ KHAN and another---Respondents

Criminal Miscellaneous No. 369-B of 2011, decided on 5th July, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)-Penal Code (XLV of 1860), Ss.381-A & 411---Theft of car and dishonestly receiving stolen property---Bail, grant of---Further inquiry---Complainant, initially had not mentioned the fact of presence of original Registration Book in the car, while she had specifically mentioned about her National Identity Card in the car---Said recovery had made the case as one of further inquiry---No disclosure memo was on the record showing involvement of accused in other similar cases--Involvement of accused in the case required further probe into the matter and his continued detention was not required for any purpose of investigation---Offence against accused did not fall within the prohibitory clause of S. 497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Mir Muhammad Ghufran Khurshid Imtiazi for Petitioner.

Shabbir Ahmad Abbasi learned Standing Counsel with Muhammad Aslam, S.-I. for Respondents.

2011 P Cr. L J 1868

[Islamabad]

Before Riaz Ahmad Khan, J

JAVED-UR-REHMAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 336-B of 2011, decided on 21st June, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Prevention of Electronic Crimes Ordinance (VIII of 2009), Ss.7, 8, 9, 15, 19 & 20---Electronic Transactions Ordinance (LI of 2002), Ss.36 & 37---Electronic fraud and forgery, misuse of electronic system or electronic device, shamming, abet, aid and or attempt to commit offence etc., violation of privacy of information and damage to information system etc.---Bail, grant of---Further inquiry---No case under Prevention of Electronic Crimes Ordinance, 2009 or Electronic Transactions Ordinance, 2002, was made out---Allegation against accused was that an e-mail message was sent to the complainant that he had won lottery and on the basis of a fake letter to pay 7.5% of the total amount of lottery---Complainant accordingly transferred certain amounts and an agreement between complainant and two other accused was executed---Even, if that allegation was accepted, that would not mean that accused had made illegal access to documents, record or had destroyed the information system of any service provider---Alleged offence, did not relate to telecommunication laws; it could be said that it was a case of simple fraud and misrepresentation---Accused had not been charged under the relevant sections of laws---Even under the alleged sections of laws, the whole amount was not sent to accused and allegation that the amount was actually sent under misconception, would require evidence---Case of accused, in circumstances, was one of further inquiry---Accused was released on bail, in circumstances.

Muhammad Arshad Tabraiz for Petitioner.

Javed Iqbal Butt, standing counsel, Khalid Naeem, Assistant Director Legal FIA, Muhammad Raza, S.-I. with record for the State.

Complainant in person.

Date of hearing: 21st June, 2011.

2011 P Cr. L J 8

[Karachi]

Before Shahid Anwar Bajwa and Irfan Saadat Khan, JJ

MEHARBAN and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 341 of 2006, decided on 23rd August, 2010.

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

----S. 9-C---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)---Possession of narcotics---Appreciation of evidence---Sample of the alleged contraband material recovered from a truck, were not sent to the Chemical Examiner within 72 hours of the seizure as required by R.4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001---Unexplained delay of two months in dispatch of the sample cast serious doubts on prosecution case---Contradictions in the statements of the prosecution witnesses were evident---Three samples were taken from the recovered charas but only one sample was sent to the Chemical Examiner---No effort was made to arrest the owner of the truck from which said contraband were recovered---When contraband articles were found to be hidden in a vehicle, mere presence of a person in that vehicle was not sufficient for conviction against such person---No contraband article was recovered from the person of the accused---Mere presence of a person in the vehicle without conscious possession of contraband material would not make a case for his conviction---Conviction and sentence of the accused was set aside and they were acquitted of the charge.

2006 PCr.LJ 58; PLD 1998 SC 516; 2005 SC 1017 (sic); 2003 PCr.LJ 702; 2008 PCr.LJ 483; 2003 PCr.LJ 680; 1995 SCMR 1345; 2001 YLR 2958; 2005 YLR 605; PLD 2004 SC 856; 1997 SCMR 543; 2008 SCMR 991; PLD 2008 Kar. 8; 2007 YLR 839; 2008 YLR 37; 2006 YLR 401; 2007 PCr.LJ 913; PLD 2006 SC 61; 2010 PCr.LJ 825; 2006 SCMR 299; 2007 SCMR 1435; 2007 SCMR 1378; 1993 SCMR 785; 2003 SCMR 1237; PLD 2006 Pesh. 39 and 2010 SCMR 891 ref.

2007 YLR 1156; 2005 PCr.LJ 2030; 2000 PCr.LJ 1360; 2009 PCr.LJ 50; PLD 2007 Kar. 555; 2008 MLD 797; PLD 2005 Pesh. 162; 2007 PCr.LJ 680; 2008 YLR 2958; 2006 PCr.LJ 516; PLD 2008 Cr. Cases Pesh. 14 (sic); and Criminal Appeal No. 229 of 2009 rel.

2010 PCr.LJ 360; 2009 YLR 1724; 2010 PCr.LJ 157; PLJ 2005 Cr. Cases 70 (sic); PLD 2009 SC 856 and 1997 SCMR 534 distinguished.

2010 SCMR 927 and PLD 1995 SC 516 fol.

M. Haseeb Jamali for Appellant.

Umar Hayat Sindhu, Deputy Attorney-General for the State:

Dates of hearing: 21st and 22nd July, 2010.

2011 P Cr. L J 55

[Karachi]

Before Abdul Hadi Khoso, J

MUHAMMAD QAISER---Applicant

Versus

THE STATE and another---Respondents

Criminal Revision Application No. 78 of 2010, decided on 9th September, 2010.

Penal Code (XLV of 1860)---

----Ss.302 / 380---Juvenile Justice System Ordinance (XXII of 2000), Ss. 4, 5, 7 & 11---Qatl-e-amd and theft-'juvenile'-Determination-Quantum of sentence---Grievance of complainant was that Trial Court had awarded lesser punishment to accused considering him as juvenile without proper determination---Evidence of prosecution witnesses was recorded by Trial Court wherein it was also not mentioned that evidence had been recorded by Juvenile Court---No question of minority was asked by Trial Court to accused while recording statement under S. 342 Cr. P. C., to show that accused had been treated as minor---Judgment of Trial Court also did not show that trial of accused was conducted under Ss.3 and 4 of Juvenile Justice System Ordinance, 2000---Accused was examined by Medical Board and Board opined his age about 17 /18 years---Complainant also produced documents showing date of birth of accused as 19-11-1985, in NADRA record, birth certificate issued by District Municipal Corporation, School Leaving Certificate showing his date of birth as 19-11-1985 and B-Form of father of accused---Effect---Trial Court had erroneously considered the accused as minor, therefore, conviction and sentence awarded to accused was set aside and case was remanded to Trial Court for decision afresh, while considering accused as adult---Revision was allowed in circumstances.

Faruukh Sayyar and others v. Chairman NAB 2004 SCMR 1; Sultan Ahmed v. Additional Sessions Judge Mianwali and others PLD 2004 758; Muhammad Naeem v. The State 2003 YLR 321; Ahmed Khan v. The State 2003 YLR 315; Zafar Iqbal v. Ehsan Ali and others PLD 2008 Lah. 26; Muhammad Ishaq v. Muhammad Nadeem 2002 SCMR 440; Nazir v. State PLD 2007 SC 202; 2001 PCr.LJ 1939; 2001 MLD 1191 and 2004 PCr.LJ 105 ref.

Jamal Ahmed Mufti for Applicant.

Abdullah Rajput, Advocate Prosecutor-General for the State.

Nasir Mehmood for Respondent No.2.

Date of hearing: 30th August, 2010.

2011 P Cr. LJ 63

[Karachi]

Before Muhammad Tasnim, J

ILLAHI BUX MARRI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-39 and M.A. No.165 of 2010, decided on 3rd September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/34---Qatl-e-amd---Bail, grant of---Delay in conclusion of trial---Case of further inquiry---Principle of consistency---Four persons were nominated in F.I.R., to be armed with hatchets and all four accused were stated to have cause injuries---One co-accused, out of four was granted bail and the other had been let-off by police---Accused had got recorded his statement under S. 164, Cr.P.C. but story narrated by him was different than the version in F.I.R.---Even otherwise three years and three months had been passed but trial did not proceed---Effect---High Court found it unfair to keep accused behind bars for indefinite period and expeditious trial of case was right of every citizen---Bail was allowed in circumstances.

Mehar Ali v. The State 2008 PCr.LJ 449 and Shabbir Ahmed and another v. The State 2003 PCr.LJ 1521 ref.

Abdul Hameed v. State 2003 MLD 19; Aarab alias Katoo v. State 2005 PCr.LJ 555 and Gul Beg v. State 2005 PCr.LJ 147 fol.

Qurban Ali Malano for Applicant.

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

2011 P Cr. L J 72

[Karachi]

Before Bhajandas Tejwani and Irfan Saadat Khan, JJ

GHULAM HUSSAIN and 9 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 57 and Criminal Jail Appeal No. 229 of 2009, decided on 18th August, 2010.

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

----Ss. 6, 9(c), 14 & 15---Possession of narcotics---Appreciation of evidence---Case property was not sealed and mashirnama bore no signatures of any personnel of ship---Mashirnama did not show that after drawing the samples, signatures of the witnesses had been obtained---Neither the sample was dated nor it was sealed---No shape or the description of the charas had been mentioned in the mashirnama---F.I.R. was totally silent as regard to the drawing of the sample or sending the same for the chemical examination---All the mashirs in the case were that of Customs Department, who did not have any idea with regard to the weight of the bags which were alleged to have been recovered from the possession of accused persons---No time had been mentioned on the report showing recovery of the contraband items---Whenever a doubt was created, the advantage of that had to be given to accused, not as a matter of grace, but as a matter of right---Case was full of contradictions and prosecution had not been able to prove the charges against accused persons beyond reasonable doubt---Prosecution having failed to prove its case against accused persons, beyond any reasonable doubt, accused were acquitted of the charges against them.

1980 PCr.LJ 369; PLD 1956 SC (India) 81; 2010 PCr.LJ 360; PLD 2004 Kar. 856; PLD 2009 Kar. 284; 2009 PCr.LJ 480; 2010 SCMR 841; 2008 SCMR 991 and Tariq Pervaiz v. State 1995 SCMR 1345 ref.

Ilamdin Khattak for Appellant.

Ahmed Ali Shah, D.P.-G. for the State.

Date of hearing: 4th August, 2010.

2011 P Cr. L J 79

[Karachi]

Before Amir Hani Muslim and Syed Hasan Azhar Rizvi, JJ

MINHON KHAN CHANDIO---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU and another---Respondents

Constitutional Petition No. D-1330 of 2010, decided on 23rd August 2010.

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

----S. 25(b)---Plea bargaining---Approval of Court---Scope---Once authorization is ordered by Chairman National Accountability Bureau (NAB), provision of section 25(b) of National Accountability Ordinance, 1999, would apply, which envisages NAB authorities to seek concurrence of Accountability Court, in order to sanctify plea bargain---Approval of plea bargain by NAB means settlement between parties but such settlement by itself would not ipso facto discharge the liability of petitioner from the rigors of section 25(b) of National Accountability Ordinance, 1999, which requires that Chairman on receipt of entire amount of plea bargain has to seek consent/ endorsement of Accountability Court.

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

----Ss. 25(b) & 33-E---Constitution of Pakistan, Art. 199---Constitutional petition---Plea bargaining---Non-approval of Court---Effect---Recovery as arrears of land revenue---Pre-condition---Petitioner entered into plea bargaining and after payment of first instalment, defaulted in payment of remaining two---NAB filed reference against petitioner for recovery of defaulted amount and petitioner sought quashing of the said reference on the ground that once plea bargain was entered into, the amount could only be recovered under section 33-E of National Accountability Ordinance, 1999, as arrears of land revenue---Validity---In exercise of Constitutional jurisdiction, petitioner had to approach the Court with clean hands---High Court did not find any good justifiable reason as to why petitioner failed to make payment of remaining two instalments of plea bargain---Once petitioner had entered into a plea bargain, he could not turn around and say that such amount was recoverable from him as arrears of land revenue by invoking the provisions of section 33-E of National Accountability Ordinance, 1999, such plea bargain approved by Chairman NAB after authorization of investigation was never consented to by Accountability Court---In order to invoke provisions of S.33-E of National Accountability Ordinance, 1999, the petitioner had to show that plea bargain after approval of Chairman NAB was consented to by Accountability Court, which was not the case of petitioner---Defaulter could not have a premium over his default and NAB authorities were competent to file Reference in absence of material reflecting that Chairman NAB after approving plea bargain had sought consent of Accountability Court---High Court declined to interfere in the Reference against petitioner pending before Accountability Court---Petition was dismissed in circumstances. ?

Mahesh Kumar v. Chairman, NAB PLD 2008 Kara 38 and Mubarak Ali v. State PLD 2005 Lab. 168 distinguished.

Muhammad Anwar Tariq for Petitioner with Petitioner in person.

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

2011 P Cr. LJ 101

[Karachi]

Before Imam Bux Baloch, J

MUHAMMAD ALI and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. S-335 and M.A. No. 1223 of 2010, decided on 13th August, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/342/201/34---Qatl-e­-amd, wrongful confinement, causing disappearance of evidence of offence or giving false information to screen offender---Bail, refusal of---Accused were named in F.I.R. with specific role of strangulating and committing murder of deceased---Medical evidence was supporting the version of complainant as postmortem report revealed that marks of strangulation were available on the neck of deceased---Prosecution witnesses in their statements under S. 161, Cr. P. C. had supported the version of complainant which were recorded on the second day of registration of F.I.R.---Effect---All such facts and circumstances supported the version of complainant---Bail was declined in circumstances.

Shahbaz Ali M. Brohi for Applicants.

Altaf Hussain Surghio for the State.

2011 P Cr. LJ 120

[Karachi]

Before Salman Hamid, J

MUHAMMAD SALEH and another---Applicants

Versus

THE STATE---Respondent

Bail Application No. S-488 of 2010, decided on 16th August, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/364/337-H(2)/337-F(i)(v)/506(2)/147/148/19---Qatl-e-amd, kidnapping or abduction in order to murder, hurt by rash and negligent act, ghayr-jaifah, criminal intimidation, rioting and rioting with deadly weapon---Bail, grant of---Case of further inquiry---Cross cases---Both the parties got F.I. Rs. registered against each other in same police station---Plea raised by accused persons was that case against them was of further inquiry---Validity---If accused charged for offence under S. 302, P.P.C. and grounds for further inquiry were available, which could show that he might not be convicted for the charges he was booked and might be acquitted, then further inquiry had to be undertaken--Two counter versions arising from the same incident: one given by complainant and the other by opposite side, such case was a case where bail on the ground of further inquiry as contemplated under S. 497(2), Cr. P. C. was available inasmuch as it was yet to be ascertained which of the version available in two F. I. Rs. was correct, which party was aggressor and which party was aggressed upon---Possibility of mala fide involvement of complainant in implicating accused existed, which at bail stage could not be ruled out, therefore, it had become a case of further inquiry as contemplated under S. 497(2), Cr. P. C. ---Bail was allowed in circumstances.

PLD 2009 SC 58 and 1998 SCMR 570 ref.

2008 SCMR 1448 and 1996 SCMR 1845 rel.

Syed Ghulam Hyder Shah for Applicants.

Shahid Ahmed Shaikh, Additional Prosecutor-General Sindh for the State.

2011 P Cr. L J 150

[Karachi]

Before Shahid Anwar Bajwa, J

ZAFAR IQBAL---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-29 of 2010, decided on 21st June, 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---Three co-accused were granted bail---Role alleged against one of said co-accused was that of firing at two injured persons---Accused and his absconder brother had been alleged to have fired at two deceased causing their death---Injury caused by accused was on head of deceased persons, which were vital part of their bodies---Role of accused, in circumstances, was materially and vastly different from the role attributed to and alleged against co-accused who were granted bail---Order granting bail to co-accused would not help the case of accused---Clear role in murders having been alleged against the accused, he was not entitled to bail---F.I.R. was promptly lodged, counter version had clearly established presence of accused at the arena, and two persons died and two others received injuries---In presence of said three facts, mere delay in recording statement under S.161, Cr.P.C., by the Police, would not cause such a grave doubt on the story of prosecution, so as to entitle accused to facility of bail---Bail was declined.

2007 PCr.LJ 1056; 2002 SCMR 1370; 2004 SCMR 841; Ali Sheharyar v. The State 2008 SCMR 1448; Muhammad Shahzad Sadiq v. The State and another PLD 2009 SC 58; Noor Muhammad v. The State 2009 SCMR 324; Sultan v. The State 2009 MLD 796; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Muhammad Hassan alias Hussaini v. The State PLD 1995 Lah. 229; Sooba Khan v. Muhammad Ajmal and two others 2006 SCMR 66; Nasir Muhammad Wassan another v. The State 1992 SCMR 501 and Inayat v. The State 2002 SCMr 129 ref.

Ghulam Shabir Dayo for Applicant.

Mushtaque Hussain Shah and Miss Rizwana Jabeen Siddiqui for the Complainant.

Zulfiqar Ali Jatoi, Deputy Prosecutor-General for the State.

2011 P Cr. L J 158

[Karachi]

Before Muhammad Tasnim, J

FAROOQUE---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. S-46 of 2009, heard on 30th August, 2010.

Penal Code (XLV of 1860)---

----Ss.364, 392 & 34---Kidnapping or abducting in order to murder and robbery---Appreciation of evidence---Benefit of doubt---Unexplained delay in F.I.R.---About 15 hours' delay in lodging F.I.R. from the time the alleged abductee was released and no plausible explanation had been brought on record by prosecution---Trial Court convicted and sentenced the accused---Validity---Trial Court failed to take note of the fact that as per F.I.R. complainant remained abducted for three days but none of the family members had reported the matter to police about missing of complainant---Prosecution failed to establish its case without any shadow of doubt---High Court set aside the conviction and sentence awarded to accused and acquitted him by extending benefit of doubt---Appeal was allowed in circumstances.

Amir Bux v. The State 1990 PCr.LJ 1765; Ishtiaq Ahmed v. The State 1996 PCr.LJ 1811; Moulvi Ali Gohar v. The Crown 1969 PCr.LJ 1047; Allah Bakhsh and Muhammad Nawaz v. The State PLD 1978 SC 171; Muhammad Ibrahim and others v. The State 1993 PCr.LJ 128; Dr. Ahmed Ali v. Agha Mir Alavi and another 1992 PCr.LJ 2038; Yaqoob Masih and 2 others v. The State 1992 MLD 922 and Rab Nawaz and others v. The State PLD 1994 SC 858 rel.

Sheraz Tufail v. The State 2007 SCMR 518; Muhammad Ali and others v. The State and others 1999 SCMR 1957; Mst. Saira Bibi v. Muhammad Asif and others 2009 SCMR 946; Muhammad Tariq alias Tara and another v. The State 2009 SCMR 1260; Muhammad Tahir Aziz v. State and another 2010 PCr.LJ 1787 and Mobashar Ahmed v. The State 2009 SCMR 1133 distinguished.

Farman Ali Kanasero for Appellant.

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

Date of hearing: 30th August, 2010.

2011 P Cr. L J 177

[Karachi]

Before Muhammad Tasnim, J

AYAZ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-641 of 2010, decided on 31st August, 2010.

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

----S.497---Bail---Principle---Deeper appreciation of evidence cannot be gone into and only it is to be seen as to whether accused is prima facie connected with commission of offence or not.

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

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(b)(c)---Possession of narcotics---Bail, grant of---Case of further inquiry---Quantity of narcotics---Chars weighing 1300 grams was recovered from accused, out of which 300 grams were referred for chemical examination---Report of Chemical Examiner showed that instead of 300 grams, laboratory received 270 grams of Chars---According to F.I.R., encounter had been shown between police and accused party but no inquiry was sustained by either party---Effect---Where recovery of substance did not exceed the limit between 900 grams to 1500 grams, the case being borderline between clauses (b) and of S. 9 of Control of Narcotic Substances Act, 1997, accused should be admitted to bail---No discrepancy existed in weight shown in F.I.R. and weight of substance referred to Chemical Examiner, the case against accused was border-line case which had attracted provision of clauses (b) and (c) of S. 9 of Control of Narcotic Substances Act, 1997, and benefit of such discrepancy was to be extended to the accused--Bail was granted in circumstances.

Taj Ali Khan v. The State 2004 YLR 439; Rayasat Ali v. The State 2005 YLR 1862; Mahboob Ali v. The State 2007 YLR 2968 and Gulab Hussain v. The State 2009 YLk 189 rel.

Gul Hassan Dero v. The State 2000 PCr.LJ 657 and Pervaiz Ahmed v. The State PLD 2008 Kar. 14 ref.

Farman Ali Kanasero for Applicant.

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

2011 P Cr. L J 187

[Karachi]

Before Abdul Hadi Khoso, J

NAEEM-UR-REHMAN KHAN NIAZI---Applicant

Versus

THE STATE---Respondent

Bail Application No. 867 of 2010, decided on 20th September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 395/324/170/34---Dacoity, attempt to commit qatl-e-amd and personating a public servant---Bail, grant of---Further inquiry---Allegations that the complainant himself had gone to the house of accused and there the whole family, the sons, the servants and the wife of accused participated in the incident; that the complainant had brought Rs. 9,00,000, which were snatched from him; and attempt was made to commit his murder, did not appeal to the common prudence of a man---Some money dispute between the parties, might be there, but it appeared very unnatural that a person had been robbed by the inmates of the house; and the complainant was so simple that he got Rs.9,00,000 to hand over for purchasing something not from a shopping centre or a market, but from the house of private person---Case of accused appeared to be of further inquiry---Accused was admitted to bail, in circumstances.

Khawaja Naveed for Applicant.

Adnan Memon, Raees Ahmed and Haji Nawaz for Complainant.

Muntazir Mehdi, A.P.-G. for the State.

2011 P Cr. L J 208

[Karachi]

Before Faisal Arab, J

Dr. SOHRAB KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 133 of 2010, decided on 23rd April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.395, 324, 147, 148, 149, 337-A(i), 337-A(ii) & 337-F(v)---Dacoity, attempt to commit qatl-e­-amd---Interim pre-arrest bail, confirmation of---Only role assigned to accused was that he was present at the site with co-accused who fired upon the complainant party---No active role had been assigned to accused and even for injuries that had been caused by other co-accused to complainant party, the maximum punishment for the same was five years---Question of vicarious liability was to be decided only when evidence was recorded---As no active role had been assigned to accused, he was entitled to concession of bail---Interim pre-arrest bail granted earlier to accused, was confirmed, in circumstances.

Abdul Sattar Sarki for Applicant.

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

2011 P Cr. L J 232

[Karachi]

Before Muhammad Ali Mazhar, J

QABIL---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-908 of 2010, decided on 5th November, 2010.

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

----S. 497-Penal Code (XLV of 1860), Ss.302, 452, 324, 148, 149 & 120-B---Qatl-e-amd, house-trespass after preparation for hurt, assault or wrongful restraint, offence committed by member of unlawful assembly in prosecution of common object, punishment for criminal conspiracy---Bail, grant of---Further inquiry---Role of conspirator was attributed to the accused but his presence at the scene at the time of occurrence was not alleged---Trial Court dismissed bail application finding prima facie involvement of the accused in the alleged offence but did not consider that the allegations of conspiracy against a person required further inquiry---Most important ingredient of the offence of conspiracy was the agreement between two or more persons to do an illegal act---Conspiracy consisted not merely in the intention of two or more but in an agreement of two or more to do an unlawful act or to do a lawful act by unlawful means---Question of accused's involvement in offence would be decided after trial while determination of his role was a matter of further inquiry---Complainant did not take any preventive measure after he came to know of the alleged conspiracy---Reasonable doubt as to participation of accused in /the crime and veracity of the prosecution case entitled accused to b it---Conspirator or abettor not present on the spot stood at a lower footing than the one present and instigating his companion to commit the crime---Accusation of conspiracy could lastly be set up where parties were inimically depressed, as false implication could not be ruled out in such cases---Where story of prosecution did not appear to be probable, accused could be granted bail---Ultimate conviction and incarceration of a guilty person could correct the error of awarding relief of bail by mistake but loss caused by incarcerating an innocent person eventually acquitted would be irreparable---Where doubts arose as to participation of the accused in offence and veracity of prosecution case, accused should not be deprived of the benefit of bail---Bail was granted.?

Syed Amanullah Shah v. State PLD 1996 SC 241 fol.

Muhammad Sharif v. State 2001 YLR 2619; Allama Syed Sajid Ali Naqvi v. State PLD 2004 Lah. 549 and Tariq v. State 2004 YLR 2298 rel.

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

----S. 120-- Criminal conspiracy--- Meaning--- Ingredients--- Most important ingredient of the offence of conspiracy was the agreement between two or more persons to do an illegal act---Conspiracy consisted not merely in the intention of two or more bat in agreement of two or more to do an unlawful or to do a lawful act by unlawful means.?

Syed Sardar Ali Shah for Applicant.

Shyam Lal, Assistant Prosecutor-General for the State.

2011 P Cr. L J 268

[Karachi]

Before Muhammad Ali Mazhar, J

MUMTAZ ALI---Applicant

Versus

S.H.O. NAUSHAHRO FEROZ and another---Respondents

Criminal Miscellaneous Application No. S-395 of 2010, decided on 5th November, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 154, 155 & 561-A---Powers and functions of Ex-officio Justice of Peace---Scope---Registration of F.I.R.---Duty of Station House Officer of Police Station---Ex-officio Justice of Peace dismissed petitioner's application for registering criminal case against the Station House Officer alleged to have committed tile murder of petitioner's brother, holding that said brother of petitioner held criminal record---Validity---Under S.22-A, Cr.P.C., Justice of Peace was required to ascertain whether a cognizable case was made out by the facts narrated in the application for registration of F.I.R.---Minute examination of the case and fact-finding was not included in the functions of the Justice of Peace---Powers of Justice of Peace were designed to aid and assist criminal justice system; such powers were not supervisory or judicial but the same were administrative and ministerial in nature---Officer in charge of Police Station was not authorized to assess the correctness or falsity of the information received, instead, he was obliged to reduce the same into writing irrespective of the fact whether such information was true or false---Justice of Peace acted in excess of his powers by touching the merits of the case without any justification doing, thereby, violence to the whole scheme of Criminal Procedure Code, 1898----Justice of Peace was saddled with the administrative duty to redress the grievance of complainants aggrieved by refusal of Police Officer to register their reports and was not authorized to assume the role of investigating agency or prosecution---Assumption of role of investigator by Justice of Peace would make Ss.154 and 155, Cr.P.C. redundant---Application filed by petitioner before Justice of Peace was not tainted with malice---Impugned order was set aside and Station House Officer was directed to register F.I.R. if any cognizable case was made out.

Mst. Bhaitan v. State and others PLD 2005 Kar. 621 and Rai Ashraf v. Muhammad Saleem Bhatti PLD 2010 SC 691 ref.

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

Imtiaz Ahmed Cheema, S.H.O. v. S.H.O., Police Station Dharki 2010 YLR 189 distinguished.

Sadaruddin Buriro for Applicant.

Shyam Lal A.P.-G. for the State.

Rajab Ali Khoso for the proposed accused.

Mubeen Ahmed, S.H.O. Naushero Feroze.

Ghulam Shabbir Khoso, Proposed accused.

2011 P Cr. L J 302

[Karachi]

Before Sarmad Jalal Osmany, CJ and Zahid Hamid, J

GUL MUHAMMAD HAJANO---Petitioner

Versus

PROVINCE OF SINDH, through the Secretary, Government of Sindh and 2 others---Respondents

Criminal Petition No. D-563 of 2009, decided on 27th May, 2010.

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

---Ss. 324/353/354/34---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Criminal Procedure Code (V of 1898), Ss.9 & 352---Constitution of Pakistan, Art.199---Attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharging of his duty, assault or criminal force to woman with intent to outrage her modesty; and possessing arms---Constitutional petition---Trial inside the jail--- Government in exercise of powers conferred under S.9(2) of Criminal Procedure Code, 1898 notified for conducting inside jail trial of accused---Petitioner, who was father of accused, had impugned the order, whereby Government vide notification ordered trial of the accused inside the jail---Petitioner (father) had insisted that his son/accused was entitled to open trial under Constitution and the law in court and not in jail---Validity---Accused was involved in 34 criminal cases---Gravity of offences against accused and their being heinous, could be considered from the fact that during the year 2008-2009 average at more than one in every month including offence under S.354, P.P.C., was attributed to accused---Offences of outraging modesty of women in Posh locality of Karachi and the sensational modus operandi of commission of crimes inter alia of robbery, snatching jewellary from women and other valuables and cash by wearing a wig received enormous notoriety and attention of the Press as it appeared from the newspapers clipping on record---Affected women led processions---Charges had not been framed in any of the cases and bail had also not been applied by accused for any case and it was not ascertainable, if in any of the cases accused had made an application under S.265-K or 249-A, Cr.P.C. or not--- Accused was not bothered about his detention---Counsel for accused had not cited a single case wherein a jail trial was prohibited despite accused having been implicated in such like cases---Such offences were allegedly committed by the accused quite frequently during a short period---Order as to inside jail trial could be partly related to the prosecution of the complainant and the prosecution witnesses or save them ,from embarrassment and from prejudice being caused to their cases---Mala fide was alleged to have led to issuance of impugned notification---Such plea, however been based on a motley of allegations having no proximal relation with the reported commission of crimes---Such mala fide, even otherwise could not be enquired in exercise of constitutional jurisdiction of High Court--- Impugned notification, under circumstances, could not be struck down in undue haste, merely on the ground that it had just been issued by the Provincial Government without the same having been supported or opposed by the Trial Court.?

Mairaj Muhammad Khan v. The State PLD 1978 Kar. 308; Asif Ali Zardari v. Special Judge (Offence in Banks) and 10 others PLD 1992 Kar. 437; Liaquat Ali and 6 others v. The Government of Punjab and another 1993 PCr.LJ 1678; Muhammad Hanif v. The State PLD 1986 Kar. 437; Messrs Noorani Traders Karachi through Managing Partner v. Pakistan Civil Aviation Authority through Airport Manager, Karachi PLD 2002 Kar. 83; Airport Support Services v. Airport Manager, Quaid-e-Azam International Airport Karachi 1998 SCMR 2268; Malik Asad Ali v. Federation of Pakistan through Secretary Law, Justice and Parliament Affairs, Islamabad and others 1998 SC 161; University of Dacca v. Zakir Ahmed PLD 1965 Dacca 90; Messrs Usmania Glass Sheet Factory Ltd. v. Sales Tax Officer PLD 1966 Dac. 523; Muhammad Pervez and others v. The State and others 2007 SCMR 670; Mehar Zulfiqar Ali Babu and. 3 others v. Government of Punjab and others 1997 SCMR 117; Muhammad Din v. Deputy Inspector-General of Police, Sheikhupura Range, Lahore and others 2004 YLR 1529; Muhammad Yousuf v. The State and others 2000 SCMR 453; Aziz Ahmed v. Provincial Police Officer (I.G.P.), Punjab Lahore and 6 others PLD 2005 Lah. 185; PLD 2007 SC 35; Abdul Rashid Chaudhury and others v. The State PLD 1966 Lah. 562; Makhdoom Muhammad Javed Hashmi v. Chief Commissioner Islamabad 2004 PCr.LJ 1089 and Shaukat Hayat v. Government of Sindh and another 1987 MLD 2783 ref.

(b) Words and phrases---

----Word "Prosecution", meaning, and object, explained.?

Petitioner in person.

Mian Khan Malik, D.A.-G. for Federation of Pakistan.

Sarwar Khan, Additional Advocate-General for Respondents.

2011 P Cr. L J 338

[Karachi]

Before Salman Hamid, J

SHAHBAZ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-560 of 2009, decided on 30th September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/34---Juvenile Justice System Ordinance (XXII of 2000), S.5(b)---Qatl-e-amd, acts done by several persons in furtherance of common intention---Bail, refusal of---Accused was specifically named in the F.I.R.---Commission of offence was directly attributed to the accused---Rule of consistency did not apply to the case of the accused as he stood at a different footing from the co-accused enlarged on bail on independent plea of alibi---Production of birth certificate by State Counsel showed that the accused had attained the age of 18, therefore, he could not be treated as a juvenile under S. 5(b) of Juvenile Justice System Ordinance, 2000---Enmity and motive of the accused had resulted in death of two­ years-old minor girl---Question of joint firing in the wake of alibi in favour of co-accused was of no help to the accused at bail stage as the same would be decided at trial---Case of bail could not be made out by accused who could not be given benefit of slight difference in the time of occurrence in the statement of the complainant who might have been traumatized by enormity of the situation---Bail application was dismissed.

SBLR 2006 (Sindh) 136 and 1986 SCMR 1380 ref.

1987 PCr.LJ 1360; 1986 SCMR 1380 and 1985 PCr.LJ 1220 distinguished.

Niaz Hussain Panhwar for Applicant.

Shahid Ahmed Shaikh, Assistant Prosecutor-General, Sindh for the State.

2011 P Cr. L J 348

[Karachi]

Before Salman Hamid, J

RIZWAN AHMED -Applicant

Versus

QADIR BUX and another---Respondents

Criminal Miscellaneous Application No. 328 of 2010, decided on 29th September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.324, 34, 506(2) & 504---Attempt to commit qatl-e-amd, acts done by several persons in furtherance of common intention, criminal intimidation; threat to cause death or grievous hurt, intentional insult with intent to provoke breach of the peace---Quashment of proceeding/case---Accused contended that complaint was filed against him to avenge successful litigation initiated by his sister against sons of the complainant---Validity---Statements of the complainant and witnesses were inconsistent---Complaint was an attempt to involve the accused in frivolous case in order to settle a personal score---Further pendency of the case would amount to abuse of process of law---High Court allowed application and quashed proceedings against the accused.

Bashir Ahmed Malik v. The State and another 1985 SCMR 684 fol.

Mst. Zubeda and 6 others v. Ghulam Ahmed 1978 PCr.LJ 123 ref.

Mukhtar Ahmed Khanzada for Applicant.

Shahid Ahmed Shaikh, Assistant Prosecutor-General, Sindh for the State.

Nemo for Respondent No. 1.

2011 P Cr. L J 361

[Karachi]

Before Imam Bux Baloch, J

MIR MUHAMMAD---Applicant

Versus

THE STATE-Respondent

Criminal Bail Application No. S-542 of 2010, decided on 27th September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 148, 149 & 504---Attempt to commit qatl-e-amd, rioting armed with deadly weapon, offence committed by member of unlawful assembly in furtherance of common object, intentional insult with intent to provoke breach of peace---Bail, grant of---Injury was caused on non-vital part of the victim---Accused was entitled to concession of bail.

Master Dur Muhammad v. The State 1994 PCr.LJ 1769 rel.

Meeran Bakhsh v. The State PLD 1989 SC 347 and Muhammad Umar v. The State PLD 2004 SC 477 fol.

Inayatullah G. Morio for Applicant.

Fida Hussain Shah State Counsel.

2011 P Cr. L J 380

[Karachi]

Before Tufail H. Ebrahim, J

PIR BUX and 7 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 709 of 2010, decided on 13th October, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.365-B, 148, 149, 504 & 506---Protection of Women (Criminal Laws Amendment) Act (VI of 2006), Preamble---Kidnapping, abducting or inducing woman to compel for marriage, etc., rioting, armed with deadly weapon, offence committed by member of unlawful assembly in furtherance of common intention, intentional insult with intention to provoke breach of peace, criminal intimidation---Bail, grant of---Further inquiry---Accused were nominated in the F.I.R. with specific role assigned in the commission of offence but delay of 14 days in lodging the F.I.R. in the heinous crime was not justifiable especially when complainant had sufficient information about the accused---Statement of the alleged abductee recorded by Police could not be considered to have been made by her free will---Silence of alleged abductee during her appearance before the Qazi, Magistrate and the High Court cast doubt as to the guilt of the accused calling for further inquiry within the meaning of S.497(2), Cr.P.C.---Sister of the complainant had eloped with the accused, mala fide on the part of complainant and the Police could not be ruled out in circumstances---Accused was admitted to bail as no reasonable ground suggested his involvement in the commission of alleged offence.

Muhammad Nawab Bashir v. The State 2009 PCr.LJ 736; Naseer Ahmed v. The State 2003 MLD 1407; Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427; 2009 PCr.LJ 409; 2008 PCr.LJ 1451; 2008 YLR 1544 and 2007 SCMR 1607 rel.

Syed Mehmood Alam Rizvi for Applicants.

Malik Naeem Iqbal for the Complainant.

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

2011 P Cr. L J 398

[Karachi]

Before Aqeel Ahmad Abbasi, J

INAYATULLAH and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 677 of 2010, decided on 16th September, 2010.

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

----Ss. 497 & 103---Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(c), 12, 13, 14, 15, 20, 21, 22 & 25---Possession of narcotics---Bail, refusal of---Accused were arrested red-handed on the spot by the raiding party when they were taking out the narcotic drug from the secret cavity of the bus---No allegation of mala fide on the part of prosecution was levelled---No reason for foisting huge quantity of narcotics was conceivable---Objections raised by the accused as to non-compliance of Ss.20, 21 and 25 of Control of Narcotic Substances Act, 1997 and S.103, Cr.P.C. were misconceived in fact and law---Section 25 of Narcotic Substances Act, 1997 had excluded the application of S. 103, Cr.P.C. in narcotic cases---Failure to associate private witness would not vitiate proceeding under Control of Narcotic Substances Act, 1997---Provisions of Ss.20, 21 and 22 of Control of Narcotic Substances Act, 1997 being directory, non-compliance of the same would not make the conviction bad in the eyes of law---Sufficient material was available against the accused for connecting them with the alleged offence; recovery had been effected from their joint possession---Accused, were not entitled to grant of bail---Application was dismissed.

Muhammad Farooq Khan v. The State 2007 PCr.LJ 89; Dildar Ali v. The State 2009 MLD 133; Abdali Shah v . The State PLD 2008 Kar 57; Pir Bux and another v. The State 2007 MLD 1696; Nazeer Ahmed v. The State PLD 2009 Kar. 191; Agha Qais v. The State 2009 PCr.LJ 1334; Ashfaq Ahmad v. The State PLD 2008 Pesh. 59; Jan Alam v. The State 2009 YLR 1724; Sakina Bibi v. The State 2008 SCMR 1111 and Syed Rehman Shah v. The State Bail Application No. 748 of 2009 ref.

State through A.-G. Sindh v. Hemjoo 2003 SCMR 881; Zafar v. The State 2008 SCMR 1254; Fida Jan v. The State 2001 SCMR 36; Muhammad Younas v. Mst. Perveen alias Mano and others 2007 SCMR 393; Ismaeel v. The State 2010 SCMR 27 and Muhammad Noor and others v. The State 2010 SCMR 927 fol.

Syed Rehman Shah v. The State Criminal Bail Application No.748 of 2009 rel.

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

----S. 25---Criminal Procedure Code (V of 1898), S.103---Exclusion of application of S.103, Cr.P.C.---Section 25 of Narcotic Substances Act, 1997 excluded the applicability of S.103, Cr.P.C. in narcotic cases.

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

----Ss. 20, 21 & 22---Nature of provisions of Ss.20, 21, 22, Control of Narcotic Substances Act, 1997---Provisions of Ss.20, 21 and 22 of the Control of Narcotic Substances Act, 1997 being directory, non compliance of the same would not make the conviction/trial bad in the eyes of law.

M. Qadir Khan for Applicants.

Ms. Parveen, Special Prosecutor for ANF.

2011 P Cr. L J 411

[Karachi]

Before Gulzar Ahmed and Imam Bux Balouch, JJ

MUHAMMAD BILAL alias SULLEMAN---Petitioner

Versus

FEDERATION OF PAKISTAN through the Secretary Ministry of Law, Justice and Human Rights Division and 3 others---Respondents

Constitutional Petition No. D-2500 of 2010, decided on 28th October, 2010.

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

---Ss. 6(2)(d), 6(2)(ee), 7(b)(ff), 17, 23 & 25---Penal Code (XLV of 1860), S.507---Telegraph Act (XIII of 1885), S.25-D---Constitution of Pakistan, Art.199---Constitutional petition---Trial by Anti-Terrorism Court---Scope---Act of terrorism likely to cause death or endanger a person's life, act of terrorism that involves use of explosives by any devise including bomb blast, criminal intimidation by anonymous communication---Accused contended that Anti-Terrorism Court was not competent to convict him of non-scheduled offence as provisions of S.17 of Anti-Terrorism Act, 1997 were not attracted in his case---Validity---Offences under S.6(2)(d) and S.6(2)(ee) of Anti-Terrorism Act, 1997 were not proved against the accused---Only offence proved against accused was that of criminal intimidation under S.507, P.P.C. which was not a scheduled offence---Anti-Terrorism Court was empowered to try a non-scheduled offence only along with/in addition to scheduled offence(s) at the same trial under S.17 of Anti-Terrorism Act, 1997 which did not empower an Anti-Terrorism Court to try non-scheduled offence when said court was not trying a scheduled offence---Under S.23 of Anti-Terrorism Act, 1997 Anti-Terrorism Court was bound to transfer the case of non-scheduled offence to any court having jurisdiction to try such offence---Once Anti-Terrorism Court had formed the opinion that the only offence proved against the accused was criminal intimidation under S.507, P.P.C., the court should not have proceeded to convict the accused of the offence as S.23 of Anti-Terrorism Act, 1997 did not confer jurisdiction on said court to pass judgment on non-scheduled offence---Mere commencement of trial was not a ground to decline transfer of case under S.23 of Anti-Terrorism Act, 1997---Impugned judgment being. without jurisdiction and nullity in the eyes of law, could not be maintained---Constitutional petition was, therefore, converted into special Anti-Terrorism-appeal--No limitation would run against the judgment of Anti-Terrorism Court on the ground that such judgment was passed without jurisdiction---Appeal was allowed; impugned judgment was set aside and case was remanded to the Anti-Terrorism Court for transfer to the Court of Session for trial in accordance with law.

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

----S. 17---Scope of S.17, Anti-Terrorism Act, 1997---Powers of Anti-Terrorism Court with respect to other offences---Anti-Terrorism Court was empowered to try non-scheduled offence only along with/in addition to scheduled offence at the same trial--Such court was not empowered to try a non-scheduled offence when it was not trying any scheduled offence.

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

----S. 23---Power of Anti-Terrorism Court to transfer case of non-scheduled offence to regular court---Scope---Anti-Terrorism Court was bound to transfer the case of non-scheduled offence to any court having jurisdiction to try such offence---Under S.23 of Anti-Terrorism Act, 1997---Mere commencement of trial by Anti-Terrorism Court was not a ground for refusing transfer of case under S.23 of Anti-Terrorism Act, 1997.

(d) Limitation---

----Limitation would not run against a judgment passed without jurisdiction as said judgment was nullity in the eyes of law.

Muhammad Sharif v. The State 2005 PCr.LJ 941 ref.

Munir Ahmed v. The State 2006 YLR 366 and Nasir Masih v. The State and another 2008 PCr.LJ 713 rel.

Kashif Hanif for Petitioner.

Afzal Sindhu, D.A.-G and Khadim Hussain, D.P.-G. for Respondents.

2011 P Cr. L J 421

[Karachi]

Before Abdul Hadi Khoso, J

MORE---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-630 of 2010, decided on 12th November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.376, 511 & 506---Rape---Bail, grant of----Statement of the victim female under S.161 Cr.P.C. had not been recorded as she was neither being produced by the complainant party before the Police nor any medical certificate was produced---Accused was confined in jail since 9-10-2010---Case of accused appeared to be of further enquiry---Accused was granted bail, in circumstances.

Khalid Iqbal Memon for Applicant.

Imtiaz Ahmed Shahani, State Counsel.

2011 P Cr. L J 428

[Karachi]

Before Shahid Anwar Bajwa, J

MUHAMMAD SALEEM---Appellant

Versus

THE STATE---Respondent

Criminal Revision Application No. 84 of 2009, decided on 16th October, 2009.

Penal Code (XLV of 1860)---

----S. 489-F--- Criminal Procedure Code (V of 1898), Ss.249-A, 417(2-A) & 435/439---Dishonouring of cheque---Penalty---Scope---Cheque issued by accused to the complainant having been dishonoured due to insufficient funds, complainant had lodged F.I.R. against accused under S.489-F, P.P.C.; however accused was acquitted under S. 249-A, Cr.P.C.---Validity---Dispute between the parties was in respect of property---Complainant, in his statement under S.154, Cr.P.C. had not stated reason for which the cheque had been issued and had admitted that he had received a pay order in lieu of the cheque in question---Complainant, therefore, did not have any case to complain---Held, it was not every instance of a cheque being dishonoured which could attract penal consequences of provision of S.489-F, P.P.C.; only when a cheque was issued towards repayment of a loan or fulfilment of an obligation; and if such cheque was dishonoured on presentation, would attract consequences envisaged by S.489-F, P.P.C.---In the present case, cheque was issued because accused had received money from the complainant and complainant received back the amount of cheque over and above; there was no repayment of loan and no fulfilment of an obligation any more---In any case provisions of S.489-F, P.P.C. could not be attracted to the case against accused---No ground for interference with the order passed by court below had been made out, in circumstances.

Sami Ahsan for Respondent No. 2.

Saleem Akhtar, Additional Prosecutor-General for the State.

2011 P Cr. LJ 434

[Karachi]

Before Amir Hani Muslim and Zakir Hussain, JJ

Mst. AZRA SULTANA---Petitioner

Versus

GHULAM ASGHAR JATOI and others---Respondents

C.P. No. D-429 of 2009, decided on 11th May, 2010.

(a) Federal Investigation Agency Act (VIII of 1974)---

----S. 5---Constitution of Pakistan, Art. 199---Constitutional petition---Powers of the members of the agency to search, arrest or seizure of property---`Case property'---Scope---Members of Federal Investigation Agency were empowered under S.5(1) of Federal Investigation Agency Act, 1974 to search, arrest or seizure of property which powers were identical to the powers of Investigating Officer under Criminal Procedure Code, 1898---Subsection (5) of S.5 of Federal Investigation Agency Act, 1974, had provided that during investigation, the Investigating Officer of Federal Investigation Agency, could seize a property, if he was of the opinion that such property was likely to be removed or transferred; or otherwise disposed of before an order of appropriate authority for its seizure was obtained---Powers under subsections (2) and (5) of S. 5 of Federal Investigation Agency Act, 1974 were independent, which did not empower the Investigating Officer of Federal Investigation Agency to seize the properties of the relations of accused persons in order to compel the attendance of absconding accused person in court---To seize the vehicles of accused inter alia on the ground to secure his attendance in court was outside the scope of Federal Investigation Agency Act, 1974---Vehicles, in question, were neither owned nor belonged to the absconding accused---Ground, on the basis of which said vehicles had been seized, was neither available under the Cr.P.C., nor under Federal Investigation Agency Act, 1974---No plausible explanation had been offered, either by Investigating Officer or Deputy Attorney General to show that the action of seizure of vehicles, not owned by accused, either in custody or absconding, could be seized by the Federal Investigation Agency in exercise of their powers under the Act---Vehicles in question was not case property in the crimes.

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

----S. 5---Constitution of Pakistan, Art.199---Constitutional petition---Seizure of vehicles---Petitioner a close relative of owners of vehicles which were seized by the Agency challenged the seizure---Question of locus standi, in the given circumstances, was not relevant as the petitioner in the first place was not stranger, but was closely related to the persons whose vehicles had been seized---High Court, in exercise of its constitutional jurisdiction, would not dismiss petition; inter alia on the ground that actual owners, whose vehicles were seized had not approached the court---Investigating Officers had exceeded their authority in seizing the vehicles, which act was declared to be without lawful authority---Federal Investigation Agency was restrained from harassing the relations of the absconding accused or accused in custody---Parties who claimed ownership of the vehicles, seized by the Investigating Officers, possession of which had been handed over to the Nazir of the High Court in terms of the order of High Court, would be restored to them by the Nazir of the court---Parties whose vehicles had been unauthorizedly seized by Agency officials, were at liberty to initiate proceedings against the action of Federal Investigation Authorities, if so desired.

Shoukat Hayat for Petitioner.

Nazar Akbar, Deputy Attorney-General along with Khaleeq-uz-Zaman Khan, Deputy Director, FIA, Haji Khan, Ex. Additional Director, FIA, Ghulam Asghar Jatoi, Additional Director, FIA and Anwar-ul-Haq Qureshi, Additional Director, FIA for Respondents.

2011 P Cr. L J 441

[Karachi]

Before Amir Hani Muslim, J

ABDUL GHAFFAR---Appellant

Versus

MUHAMMAD ASIF and another---Respondents

Cr. Acq. Appeal No. S-206 of 2009, decided on 29th November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 417(2)(a)---Appeal against acquittal---Limitation---Appeal was resisted on the ground that time for filing an acquittal appeal as provided under S.417(2)(a), Cr.P.C. being 30 days, appeal filed beyond 14 days from said prescribed period was barred by time, for which neither any application for condonation of delay had been filed nor any explanation in the memo of appeal had been given---Contention of appellant was that time for filing acquittal appeal was 60 days under Art.155 of the Limitation Act, 1908---Validity---In law, the provisions of Limitation Act, 1908 would only be invoked, if the special statute had not provided limitation---When Criminal Procedure Code, 1898 had provided limitation, then the provisions of Limitation Act, 1908 could not be invoked---Appeal filed after expiry of period of 30 days prescribed under Criminal Procedure Code, 1898 being barred, was dismissed, in circumstances.

Rashged Ahmed Qureshi for Petitioner.

Syed Madad Ali Shah for Respondents.

Muhammad Iqbal Kalhoro, Additional Prosecutor-General, Sindh.

2011 P Cr. L J 445

[Karachi]

Before Muhammad Tasnim, J

ALI AKBAR---Applicant

Versus

THE STATE---Respondent

Cr.B.A. No. S-772 of 2010, decided on 15th September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.395---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Dacoity and Haraabah---Bail, grant of---Further inquiry---Unexplained delay in lodging of F.I.R. on the part of prosecution---No recovery had been effected from accused or on his pointation---Accused was arrested after two months of the date of alleged incident and that too from the place other than the place where incident had taken place---Case, in circumstances, was fit in which further enquiry in terms of subsection (2) of 5.497 was called for---Accused was admitted to bail, in circumstances.

Hadi Bux Bhatt for Applicant.

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

2011 P Cr. L J 452

[Karachi]

Before Imam Bux Baloch, J

ABDUL HAKEEM---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No. S-215 of 2009, decided on 3rd September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.324, 427, 148, 149 & 109---Attempt to commit qatl-e-amd and mischief---Quashing of proceedings---Application for---Applicant was not present on the spot at the time of alleged incident---Assertion of complainant that co-accused asked the complainant that they were committing the offence at the instigation of applicant, did not appeal to a prudent mind---Prosecution had no strong piece of evidence against applicant---Complainant, in order to harass and humiliate the applicant, had appeared to have given his name in the F.I.R.---Prosecution had no evidence about involvement of applicant in the commission of alleged offence---Application for quashment of proceedings was allowed and proceedings against applicant were ordered to be quashed, in circumstances.

A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353 ref.

Asif Ali Abdul Razak Soomro for Applicant.

Liaquat Ali Baloch for the Complainant.

Naimatullah Bhurgri, State Counsel.

2011 P Cr. L J 457

[Karachi]

Before Gulzar Ahmed and Imam Bux Balouch, JJ

S.A. SATTAR BATTIWALLA and 3 others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU---Respondent

Constitutional Petition No. D-385 of 2008, decided on 5th November, 2010.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 5(r), 25, 25-A & 33-E---Constitution of Pakistan, Art.199---Constitutional petition---Wilful default, plea bargain, recovery of amount of fine---Accused/petitioners sought extention in time fixed for payment of dues to bank in plea bargain---Validity---Accused having failed to make payment of balance amount of plea bargain, were not entitled to any equitable and discretionary relief by High Court in exercise of its constitutional jurisdiction under Art.199 of the Constitution--Petition was dismissed in circumstances.

Mukesh Kumar v. Chairman NAB PLD 2008 Kar. 38 and Minhon Khan Chandio v. National Accountability Bureau in C.P. No.D-1330 of 2010 ref.

Rehmatullah and others v. Mst. Hameeda Begum and others 1986 SCMR 1561 and The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 fol.

Zulfiqar Noorani and Sameer Ghazanfar for Petitioners.

Muhammad Aslam Butt, D.P.-G. NAB for Respondent.

Ms. Naheed A. Shahid for the Bank.

2011 P Cr. L J 485

[Karachi]

Before Muhammad Tasnim, J

ALLAH DITTO and another---Applicants

Versus

THE STATE---Respondent

Criminal B.A. No, S-671 of 2010, decided on 9th September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 396, 397, 148 & 149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Qatl-e-amd---Dacoity with murder, robbery and Haraabah---Bail, grant of---Further inquiry---Deeper appreciation of the evidence could not be gone into at bail stage and tentative assessment was to be made just to find out, as to whether accused were connected with offence or not---Ocular version of the case was not supported by the medical version---Unexplained inordinate delay in lodging of F.I.R.---Medical evidence as well as Mashirnama, Danishnama and other documents were doubtful which were prepared much prior to the lodging of F.I.R., which had made the case that of further inquiry in terms of subsection (2) of S.497, Cr. P. C. ---Accused was admitted to bail, in circumstances.

Abdul Haque Odho for Applicants.

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

2011 P Cr. L J 499

[Karachi]

Before Aqeel Ahmed Abbasi, J

Mst. SAMINA and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 236 and 251 of 2006, decided on 20th December, 2010.

Penal Code (XLV of 1860)---

----Ss. 363, 364-A, 369, 468, 420 & 109---Kidnapping, kidnapping or abducting a person under the age of fourteen, kidnapping or abducting child under ten years with intent to steal from its person, forgery for purpose of cheating, cheating and dishonestly inducing delivery of property, abetment where no express provision is made for its punishment---Appreciation of evidence---Benefit of doubt---Only material against the accused was the Passports wherein the accused were shown to be parents of allegedly abducted children---Recovery of said children or their Passports was not effected from the accused---Custody of children was handed over to the principal accused by their parents out of their free will---No evidence was brought on record to show the nexus of accused/present appellants and the principal accused for commission of alleged offence---Ingredients of offence under S.369, P.P.C. were missing---Unverified Passports of alleged abductees showing the accused as parents of said abductees were not reliable pieces of evidence to connect the accused with commission of offence under S.369, P.P.C.---No one could be punished without reliable evidence---Benefit of reasonable doubt must go to the accused---Mere conjectures and probabilities could not be equivalent to proof---In the absence of any specific role or nomination of the accused in F.I.R. and without direct reliable evidence, impugned conviction was not sustainable in law---Extending benefit of doubt, accused were acquitted of the charges---Conviction and sentence of the Trial Court were set aside.

Faheem Ahmed Farooqui v. The State 2008 SCMR 1572; Ghulam Qadir v. The State 2008 SCMR 1221; Yasin alias Ghulam Mustafa v. The State 2008 SCMR 336; Siraj-ul-Haq v. The State 2008 SCMR 302; Tayyab Hussain v. Ansari Ali and another 2008 SCMR 90; Abdul Majeed v. The State 2008 SCMR 71; Muhammad Suleman Chanda v. The State 1994 PCr.LJ 596 and Muhammad Safdar v. The State 2008 YLR 2878 ref.

Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Siraj-ul-Haq v. The State SCMR 302 (sic.); Faheem Ahmed Siddiqui v. The State 2008 SCMR 1572 and Muhammad Luqman v. The State PLD 1970 SC 10 fol.

M/s. Shamshad Ali Qureshi and Shahida Jatoi for Appellants.

Abdullah Rajput, A.P.-G. for Respondent.

Date of hearing 8th November, 2010.

2011 PCr.LJ 580

[Karachi]

Before Salman Hamid, J

ALTAF SETHAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 397 of 2010, decided on 23rd July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497-Penal Code (XLV of 1860), Ss.324, 392, 506/2, 14, 147, 148 & 149---Attempt to commit qatl-e-amd, robbery---Bail, grant of---Merely dismissing the bail application on the ground that accused was arrested after four years of the incident; and that some cases were pending against accused without appreciating the fact that in such cases bail was granted on the ground of further inquiry and that mere abscondence did not come into the way of accused for applying for bail, if otherwise a case for bail was made out on writs, was, not a good approach---Accused was directed to be released on bail.

Mitho Pitafi v. The State 2009 SCMR 299; Muhammad Dawood and another v. The State and another 2008 SCMR 173 and Jamshaid Ahmad v. The State 2003 YLR 1378 ref.

Ghulam Mustafa Junejo for Applicant.

Rubina Dhamrah, State Counsel.

2011 PCr.LJ 601

[Karachi]

Before Salman Hamid, J

NIAZ ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-368 and M.As. No. 1386, 1387 of 2010, decides on 26th July, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 498-A---Penal Code (XLV of 1860), Ss.457, 436 & 427---Lurking house-trespass and mischief----Pre-arrest bail, refusal of--Jurisdiction of High Court and Sessions Court in granting bail---Scope---Jurisdiction of the High Court and the Sessions Court being concurrent, it was always beneficial for accused to first approach the Court of Session as that court was invariably in almost all cases, pending before it, was better equipped to explore the factual inquiries, necessary for the decision of the bail application---Accused not approaching the court below first, its jurisdiction at such level had been by-passed and that such court rendered redundant---Even if some fresh question was not duly agitated before, even then it was normally found desirable to agitate the same before the court of first instance, rather than come running to the High Court---Such being the position, without touching merits of the case, interim pre-arrest bail granted to accused was recalled and pre-arrest bail application was dismissed.

Mazhar Ali Mangan for Applicant.

Imtiaz Ali Shahani for the State.

2011 PCr. L J 636

[Karachi]

Before Gulzar Ahmad and Nisar Muhammad Shaikh, JJ

RABNAWAZ KHATTAK and another---Appellants

Versus

THE STATE-Respondent

Criminal Appeals Nos. 48 and 49 of 2009, decided on 28th June, 2010.

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

----S. 9(c)---Penal Code (XLV of 1860), S. 57---Criminal Procedure Code (V of 1898), S. 397---Possession of narcotics---Sentence, reduction in---Appreciation of evidence---Imprisonment for life in two cases---Accused was convicted in both cases and were sentenced to imprisonment for life in each case-Validity-Imprisonment for life necessarily envisaged imprisonment of 25 years in accordance with spirit of S. 57, P.P.C. read with S. 397, Cr.P.C. and sentence of life imprisonment was only the next sentence after sentence of death---,Concept of life was only one span, therefore, imprisonment of life could only be for one life---Trial Court did not mention anything in judgments about running of two sentences either consecutively or concurrently, therefore, High Court could take curative measures in such eventuality---Accused were first offenders as no report/record was produced to show that they were previously convicted or involved in cases of like nature and that quantity of Charas which was reported by Chemical Examiner to be in positive, was less than 10 kilograms---High Court keeping in view the young age of accused and considering mitigating circumstances, while maintaining conviction of accused in both the cases, their life imprisonment was reduced to 10 years imprisonment in both cases and both sentences were to run concurrently---Appeal was dismissed accordingly.

2006 SCMR 1051; 2009 PCr.LJ 355; 2009 PCr.LJ 403; 2005 PCr.LJ 1173; 2005 PCr.LJ 1278; 2005 PCr.LJ 1506 and 2008 YLR 2332 ref.

2005 PCr.LJ 370 rel.

Naeem Ahmed Khan Tanoli for Appellants.

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

Dates of hearing: 7th, 9th and 10th June, 2010.

2011 P Cr. L J 677

[Karachi]

Before Gulzar Ahmed and Imam Bux Baloch, JJ

TANVEER AHMED---Appellant

Versus

THE STATE---Respondent

Spl. A.T. Jail Appeal No. 13 of 2008 and Confirmation Case No. 3 of 2008, decided on 24th December, 2010.

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

----S. 7(a)---Criminal Procedure Code (V of 1898), Ss. 164 & 364---Qatl-e-amd---Terrorist act---Appreciation of evidence---Judicial confession---Circumstantial evidence---Accused abducted deceased girl and after murdering her, disposed of her body at different places---Trial Court convicted the accused under S. 7 (a) of Anti-Terrorism Act, 1997, and sentenced him to death----Validity---Circumstantial evidence produced by prosecution was trustworthy and inspired confidence---No ill will or any motive was suggested against prosecution witnesses---Complainant who was brother-in-law of accused had no motive to involve the accused in case---Accused voluntarily made judicial confession before Magistrate, and the same was recorded according to rules and procedure envisaged under Ss. 164 and 364, Cr.P.C., wherein accused had narrated all facts---Magistrate had no nexus with prosecution to manage false judicial confessional statement, which was voluntary and was made without any duress, coercion or pressure---Accused did not make any complaint before Magistrate without any maltreatment or inducement, therefore, judicial confessional statement was not manipulated---Judicial confessional statement was corroborative by independent evidence, such as, identification parade, recoveries on the pointation of accused and pointation of place where head of deceased and other articles were thrown out by accused---High Court declined to interfere in conviction and sentence awarded to accused by Trial Court and the same was maintained---Appeal was dismissed in circumstances.

Aala Muhammad v. The State 2008 SCMR 649; Malik Jehangir Khan and others v. Sardar Ali and 2 others 2007 $CMR 1404; Arbustan and others v. The State 1992 SCMR 754; Allah Nawaz v. The State 2009 SCMR 736; Mst. Gul Nissa and another v. Muhammad Yousaf and another PLD 2006 SC 556; Muhammad Arshad v. The State PLD 1995 SC 475; Kirir v. The State PLD 1996 Kar. 246; Lal Pasand v. The, State 1971 SCMR 569 and State v.. Farman Hussain PLD 1995 SC 1 ref.

Gul Jamal and another v. The State 1980 SCMR 654; Fazal Wadood v. The State and another 2006 SCMR 1911; Miss Jajiba and 2 others v. Ahmed Sultan alias Sattar and 2 others 2001 SCMR 988 and Haq Nawaz and others v. The State 2000 SCMR 785 rel.

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

----S. 164---Judicial confession---Effect---If Courts find confession as voluntary, true and corroborated by independent evidence, then Courts are required to award severe sentence in view of increase in crime and exercise their discretion judicially---If prosecution proves its case beyond any reasonable doubt, then it is the duty of Court to impose deterrent punishment on the offender.

Habib Ahmed for Appellant.

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

Dates of hearings: 21st, 27th October, 23rd and 29th November of 2010.

2011 P Cr. L J 717

[Karachi]

Before Muhammad Ali Mazhar, J

WAHID BUX---Applicant

Versus

SUB-INSPECTOR OF POLICE, POLICE STATION MIR PUR MATHELO and 2 others---Respondents

Criminal Miscellaneous Application No. S-399 of 2010, decided on 29th November, 2010.

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

----S.354-A---Assault or use of criminal force to woman and stripping her of her clothes---Pre-conditions---In order to attract S. 354-A, P.P.C., three conditions must be fulfilled viz (i) assault with criminal force to a woman; (ii) stripping her of her clothes; and (iii) exposing her to public view in that condition.

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

----S.347---Trial by Court of Session or High Court---Sending of case---Principles---Magistrate is fully empowered under S. 347, Cr.P.C., before signing of judgment, if it appears to him at any stage of proceedings that case is one which ought to be tried by Court of Session or High Court, to send, the case to the Court of Session or High Court.

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

---Ss.353 & 354-A---Criminal Procedure Code (V of 1898), S.561-A---Outraging modesty of woman---Opinion of police---Sending case to Sessions Court---Grievance of accused was that Magistrate differed with investigation report and instead of trying the case himself sent the same to Court of Session for trial under S. 354-A, P.P. C.---Validity---Police report was not binding on Magistrate---Necessary element and decisive consideration for applicability of S. 354-A, P.P.C. was an assault or use of criminal force to any woman and striped her of her clothes and in that condition exposed her to public view which was real question, called for determination by Magistrate---Such necessary elements were uncertain and could only be resolved once, the trial had commenced and statement of complainant was recorded---High Court directed the Magistrate to commence the trial, record the statement of complainant and if from her statement, it appeared to him that a case under S. 354-A, P.P. C. was made out, he would send the case to Court of Session, for trial---Order passed by Magistrate was' set aside---Application was allowed in circumstances.

Karam Dad and another v. State and another PLD 2008 Lah. 308; Muhammad Ashraf v. The State 1989 PCr.LJ 1453; Qadir Shah and others v. State 2009 SCMR 913; Zulfiqar and 2 others v. The State 1996 PCr.LJ 620 and Hasnain Ali v. State 2004 PCr.LJ 1972 ref.

Zulfiqar Ali Sangi for Applicant.

Shafqatullah for Respondent No. 2.

Sardar Ali Shah for A.P.-G.

2011 P Cr. L J 732

[Karachi]

Before Shahid Anwar Bajwa, J

SABIR ALI ARIAN and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No. 427 of 2010, decided on 11th January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 173---Magistrate disagreeing with the police report recommending/suggesting/seeking disposal of F.I.R. in class, directed police to submit the charge sheet against the accused persons---Applicant/accused contended that the Magistrate could not order the challan to be submitted---Validity---Magistrate dealing with the report under S.173, Cr.P.C. though acted in administrative capacity, yet he had to pass a speaking order---Court below had observed the cases of both the complainant and the accused were supported by their witnesses---Veracity of witnesses could be determined by the Trial Court only after recording evidence---Magistrate had given reasonable and plausible explanation for disagreeing with the police report and rightly ordered the challan to be filed in prescribed pro forma in the court competent to try the offence---Where Magistrate arrived at a conclusion contrary to the police report which sought disposal or cancellation of F.I.R. as B' orC' class, he had to make an order for submission of challan in prescribed form---Accused's application was dismissed in circumstances.

Ch. Muhammad Ashraf v. The State 2006 PCr.LJ 518; Dawood Khan and 8 others v. Ahsan-ur-Rehman and 2 others 2006 MLD 663; Farooq Sumar and others v. The State and others 2004 PCr.LJ 1023; Muhammad Zaffar Saleem v. State 2009 YLR 489; Sooti Abdul Qadir v. The State and others 2000 PCr.LJ 520 and Mst. Eram and 4 others v. Muhammad Adnan Choudhry and another 2010 YLR 1580 distinguished.

Muhammad Hassan v. The State and another 2009 YLR 1479 and Sarfaraz Hussain v. The State and 2 others 2009 YLR 1614 rel.

Safdar Ali v. Zafar Iqbal and others 2002 SCMR 63 and PLD 1985 SC 62 fol.

Muhammad Ahmad (Mehmood Ahmed) and another v. The State 2010 SCMR 660 ref.

Muhammad Iqbal Memon for Applicants.

Noor Hassan Malik for the Complainant.

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

2011 P Cr. L J 747

[Karachi]

Before Nisar Muhammad Shaikh, J

ABDUL ZAHOOR KHAN---Applicant

Versus

THE STATE---Respondent

Bail Application No. 569 of 2010, decided on 19th July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.420, 489-F & 34---Cheating and dishonouring of cheque---Pre-arrest bail, refusal of---Huge amount of Rs.2 million was invested by the complainant after his retirement in joint business, with accused persons---On the demand of the complainant, he was subsequently separated from such business and the cheque of Rs.2 million ? with joint signatures of both the accused persons were issued from their joint account, was given to the complainant---Said cheque was bounced/dishonoured for the reason of insufficient funds---Legal notice was served upon accused person, who neither replied the same nor made due payment to the complainant--Accused had tried to create defence, contending that he himself was an aggrieved person; and himself had lost a huge amount of Rs. 7.6 million at the hands of co-accused and the complainant---Accused had nowhere shown, if he had filed any complaint against co-accused or even separated his partnership in the business with co-accused---Such conduct of accused, also supported the contention of complainant in respect of alleged cheating, dishonesty etc., on the part of accused; and no mala fide etc. on the part of complainant---Accused was disentitled for the extraordinary relief of pre-arrest bail or any concession thereof--Application for pre-arrest bail, was dismissed, in circumstances.

Idrees Ahmed v. Zafar Ali and others 2010 SCMR 64; Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488; Rana Muhammad Arshad v. Muhammad Rafiq and another PLD 2009 SC 427; 2009 YLR 2178; PLD 2008 Kar. 212; 2007 PCr.LJ 1064 and Shameel Ahmad v. The State 2009 SCMR 174 rel.

Fahim-ul-Karim for Applicant.

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

M. Anwar Shahid, assisted by Muhammad Ramzan for the Complainant.

2011 P Cr. L J 754

[Karachi]

Before Tufail H. Ebrahim, J

JALAL AKBAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Applications Nos. 855, 856 and 857 of 2010, decided on 6th December, 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---Cheques issued by the accused to the complainants had been dishonoured by the Banks on presentation due to insufficient funds and not for any other reason---Contention of accused that he had informed the Manager of the Bank about the theft of his cheque books would be determined by Trial Court after recording his evidence---Accused had failed to show any mala fides on the part of the complainants and the investigating agency for his false implication in the cases---Offence not falling within the prohibitory clause of S. 497(1), Cr.P.C. would not justify grant of extraordinary relief of pre-arrest bail to accused---Deeper appreciation of material on record could not be done at such stage---Filing of civil suit and F. I. Rs. by the accused against his partness or associates in the business by itself, could not be a ground for grant of bail to him---Prima facie accused could not show that he had not issued the cheques dishonestly---Illness of accused was not shown to be such as to be seriously determined to his health in case of his arrest or detention in jail---Pre-arrest bail was declined to accused in circumstances.

Ghulam Kadir v. The State 2007 YLR 1495; Ali Murtaza v. The State 2005 PCr.LJ 1773; Talib Hussain v. The State 2007 PCr.LJ 1064; Major Anwar-ul-Haq v. The State PLD 2005 Lah. 607; Messrs W.A.K. Limited through Manager. Finance v. Province of Punjab 2009 MLD 512; Haji Ahmed v. The State and another 2008 MLD 1030; Muhammad Javed v. The State 2007 YLR 309; Pervaiz John alias Pervaiz Masih v. The State and others 2010 PCr.LJ 1321; Muhammad Afzal Javed v. -Muhammad Akram and another 2009 PCr.LJ 1302; Muhammad Tariq Javed v. The State 2008 YLR 947 and Shameel Ahmed v. The State 2009 SCMR 174 ref.

Gohar Iqbal for Applicant.

Malik Naeem Iqbal for the Complainant.

Ms. Seema Zaidi A.P.-G. for the State.

2011 P Cr. L J 765

[Karachi]

Before Abdul Hadi Khoso, J

SAFDAR ALI---Applicant

Versus

THE STATE---Opponent

Criminal Bail Application No. 560 of 2010, decided on 1st November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.365-B & 496-A---Kidnapping, abducting or inducing woman to compel for marriage, and enticing or taking away or detaining with criminal intent a woman---Pre-arrest bail, refusal of---Accused was shown at the place of incident having pistol in his hand---Abducted woman had not been recovered---Case, in circumstances, was not fit for grating bail before arrest.

Safdar Ali G. Bhutto for Applicant.

Altaf Hussain Surhio for the State.

2011 P Cr. L J 774

[Karachi]

Before Tufail H. Ebrahim, J

AMANULLAH KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 1048 of 2010, decided on 23rd December, 2010.

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

----S. 498---Penal Code (XLV of 1860), S.489-F----Dishonouring of cheque---Pre-arrest bail, refusal of---Record did not transpire that any business relation or any dispute existed between the brothers in respect of any property; or the cheques were issued as security; or in trust and were not to be encashed until the sale of some plots---Prima facie the cheques in question were allegedly issued to the complainant in settlement of the loan---Cheque was dishonoured by the bank due to insufficient funds and not for any other reason; and if it was given in trust, then accused had failed to give any plausible reason or to disclose or inform the complainant or the bank not to encash the said cheque on the due date---Accused had also failed to show any mala fide on the part of the complainant as well as on the investigating agency---Delay in lodging the F.I.R. could be for the reason to give a last opportunity to accused for payment of the due amount---Question of lodging of F.I.R. by the attorney of the complainant, was devoid of any force, in view of settled proposition that every member of the public had a right to set the wheel of criminal prosecution in motion; and there was no embargo for any person to lodge a complaint or to be personally aggrieved---Prima facie matter did not fall within the provisions of further inquiry as contemplated under S.497(2), Cr.P. C., as the offence was complete on the dishonouring of the said cheque---Mere non-witnessing of the Iqrarnama by itself could not be considered as ground for granting bail to accused---Complainant had no mala fide intention to falsely implicate accused in the cases and prima facie accused had failed to show that the cheque was not dishonestly issued for payment of any loan or obligation---Accused having not made out a case for confirmation of the pre-arrest bail, pre-arrest bail granted to accused vide earlier order, was recalled and consequently bail application stood dismissed.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34, Muhammad Mukhtiar v. Sajjad Hussain and 2 others 2004 YLR 2227; Bakhtiar v. The State 2004 PCr.LJ 343; Lt. Col. (Ret) Tariq Latif v. Mst. Jamila Sultana and another 2006 PCr.LJ 476; Rana Ehsan v. The State 2004 YLR 2675; Tariq Mehmood v. The State 2007 YLR 1709; Ali Murtaza v. The State 2005 PCr.LJ 1773; Muhammad Ramzan v. Zafarullah and another 1986 SCMR 1380; Syed Amanullah Shah v. The State and another PLD 1996 SC 241; Ijaz Akhtar v. The State 1978 SCMR 64 and Abdul Qadir v. The State 2004 PCr.LJ 285 rel.

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

----S. 154-Information to Police---Lodging of F.I.R. by attorney of complainant---Question of lodging of F.I.R. by the attorney of the complainant, was devoid of any force, in view of settled proposition that every member oldie public had a right to set the wheel of criminal prosecution in motion; and there was no embargo for any person to lodge a complaint or to be personally aggrieved.

Muhammad Saeed Abbasi for Applicant.

Abdullah Rajput, A.P.-G. for Respondent.

2011 P Cr. L J 790

[Karachi]

Before Tufail H. Ebrahim, J

JAVED AWAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 994 of 2010, decided on 20th December, . 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.395---Robbery---Bail, refusal of---Accused, no doubt had not been named in the F.I.R., but accused had been identified by the complainant party who were eye-witnesses to the crime---Prima facie no grudge or mala fide was on the part of the complainant against accused to falsely implicate accused in the crime---Recovery of stolen watch had also been made from accused and no reasonable explanation had been given as to why accused had escaped from the court-Prima facie no case had been made out for further inquiry and tentatively no reasonable ground was available to believe that accused had not committed the alleged offence to entitle hint for the grant of bail---Bail was declined.

Habibuliah v. The State 2005 MLD 558 and Badlo and another v. The State 2004 PCr.LJ 157 rel.

Said Muhammad Khan for Applicant.

Shahzado Saleern, A.P.-G. for Respondent.

2011 P Cr. L J 798

[Karachi]

Before Shahid Anwar Bajwa, J

HABIB AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Applications Nos. 731 and 734 of 2010, decided on 3rd January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Bail, refusal of---Accused violated sanctity of the house of widow a in the midnight---Huge amount of money was involved--Criminal intimidation was committed against a woman---Criterion for deciding the pre-arrest bail application was materially different from criterion for deciding post-arrest bail application---Bail application of accused was dismissed.

Gulsher v. The State 2000 PCr.LJ 1482; Mahhakunuddin and others v. The State 2002 PCr.LJ 1628 and Muhammad Rizwan v. The State and 3 others 2007 PCr.LJ 78 distinguished.

Muhammad Ramzan v. Zafar Ullah and another 1986 SCMR 1380 ref.

Zafaruddin Khan Tariq for Applicant.

Abrar Ali, Assistant Prosecutor-General for the State.

Muhammad Zafar Ahmed for the Complainant.

Date of hearing: 3rd January, 2011

2011 P Cr. L J 834

[Karachi]

Before Muhammad Tasnim, J

MUHAMMAD AYOOB alias AYOOB---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 650 and M.As. Nos. 2709, 2710 of 2010, decided on 6th August, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Bail, grant of---Counsel for accused had stated that other co-accused numbering 23 had already been admitted to pre-arrest bail by the Trial Court and that case of accused was similarly placed as he had been assigned the same role which had been assigned in the F.I.R. to said other 23 accused---State Counsel had confirmed the statement of counsel for accused; and stated that he had no objection, if rule of consistency was followed and accused was also admitted to bail---Accused, in circumstances was admitted to bail.

Qurban Ali Malang for Applicant.

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

2011 P Cr. L J 864

[Karachi]

Before Muhammad Tasnim, J

MUHAMMAD ALAM and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. S-284 of 2010, decided on 6th August, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 193---Interim pre-arrest bail, confirmation of---Accused persons were admitted to interim pre-arrest bail by High Court---,Contention of counsel for accused persons was that names of two accused had been shown in column No.2, whereas third accused had been challaned---One of accused persons having already been challaned and for joining of other two accused in the trial, application under S.193, Cr.P.C. was pending adjudication before the Trial Court, interim pre-arrest bail order was confirmed.

Achar Khan Gabole for Applicants.

Nadir Ali Chachar for the Complainant.

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

2011 P Cr. L J 871

[Karachi]

Before Aqeel Ahmed Abbasi, J

Mst. ISLAM KHATOON---Applicant

Versus

S.H.O. POLICE STATION MANJOO SHORI, DISTRICT NASIRABAD, BALOCHISTAN and 9 others---Respondents

Criminal Miscellaneous Application No. S-16 of 2011, decided on 7th February, 2011.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Alleged detainee was produced by Police in the court, which had got her statement recorded on oath---Detainee confirmed the allegations contained in the application filed by her grandmother under S.491, Cr.P.C.---Alleged detainee had also expressed her unwillingness to live with her husband, any more; and she expressed apprehension of threat to her life---Alleged detainee wanted to go and live with her father and her grandmother---Detainee being sui juris, could not be forced against her will to continue to live with her husband; she was at liberty to live with her parents---If her husband wanted to seek conjugal rights, he could approach the competent court of jurisdiction for said purpose, whereas alleged detainee was at liberty to approach concerned Family Court seeking dissolution of marriage, if so advised---Alleged detainee was allowed to go with her father and grandmother.

Ahsan Ahmed Quraishi for Applicant.

Altaf Hussain Surahio, State Counsel.

2011 P Cr. L J 890

[Karachi]

Before Syed Zakir Hussain, J

ZULFIQAR ALI RAHAR---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No. 91 of 2010, decided on 6th December, 2010.

Penal Code (XLV of 1860)---

---Ss. 302/148/149---Qatl-e-amd---Appreciation of evidence---Eye­witnesses including the complainant had given evidence with material variation on material points---Mashirnama of injuries, inquest report, medical report and postmortem examination report etc., showed otherwise---One of the prosecution witnesses had contradicted his earlier statement made under S.161, Cr.P.C. and despite that he was not declared hostile by the prosecution---Evidence of said witness had damaged the evidence of others---Such aspect had made all the witnesses doubtful---Blood-stained earth and empties, were not sent for Expert Report and no crime weapon was secured---Benefit of doubt which was extendable to accused, was also open to be so extended to. other charge-sheeted persons, who had already stood let off in the first instance on the part of the Investigating Officer, but the court being in disagreement with such opinion of the Investigating Officer, joined them under S.193; Cr.P.C. unnecessarily---Even a simple circumstance, which would create doubt as to the guilt of accused to the offence, he was charged with, would entitle him to the acquittal, not as a matter of concession but as a matter of right; and a single reason could be a source of discrediting the entire evidence of a witness--Impugned judgment passed by the Trial Court against accused, was set aside, in circumstances.

1995 SCMR 1345; 1997 SCMR 25 and 2008 SCMR 1221 ref.

Safdar Ali Bhutto for Appellant.

Ali Raza Pathan, State Counsel.

Date of hearing: 6th December, 2010.

2011 P Cr. L J 918

[Karachi]

Before Muhammad Tasnim, J

MUHAMMAD ASHRAF and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. S-483 of 2010, decided on 23rd July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.396, 353, 324, 148 & 149---Dacoity, assault and attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---F.I.R. was lodged after the delay of 5 hours, but no plausible explanation had been put forth by the prosecution---No role had been assigned to accused persons as incident was unseen---Dead body was received by the Doctor much prior to the lodging of F.I.R., but postmortem report carried F.I.R. number---At the bail stage deeper appreciation of the evidence could not be gone into and only a bird eye-view was to be kept on the record---Case being fit whereby further inquiry was called for in terms of S.497(2), Cr.P.C., accused were admitted to bail, in circumstances.

Iftikhar Hussain and others v. The State 2004 SCMR 1185 and Paryal v. The State 2006 PCr.LJ 1212 rel.

Abdul Haque G. Odho for Applicants.

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

2011 P Cr. L J 936

[Karachi]

Before Muhammad Athar Saeed and Irfan Saadat Khan, JJ

FEROZ KHAN BALOUCH---Applicant

Versus

FIRST WOMEN BANK LTD. through Attorney and 2 others---Respondents

Criminal Revision Application No. 30 of 2011, decided on 24th March, 2011.

Criminal Procedure Code (V of 1898)---

----Ss.248, 249-A & 265-K---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 20(1)(b) & (2)---Complaint against commission of fraud---Withdrawal of complaint---Acquittal of accused---First complaint filed by the complainant Bank against the applicant was dismissed by Special Banking Court for non-­prosecution---Complainant Bank, after about ten years of dismissal of first complaint, filed second complaint, which was withdrawn by the Bank---Two years after withdrawal of second complaint, the Bank filed third complaint for the same crime---Application filed by the applicant under S.249-A, Cr. P. C. for his acquittal was converted into S.265-K, Cr.P. C. and was dismissed---Validity---Withdrawal of complaint under S.248, Cr.P.C. would result in acquittal of accused and it ' was mandatory upon the Magistrate/Judge while allowing the permission for withdrawal of the complaint, to acquit accused keeping in view the facts of the case---Filing of third complaint on identical facts after withdrawal of second complaint was wholly misconceived and illegal; firstly, no plausible explanation had been given by the counsel for complainant Bank that as to how a complaint, after a lapse of two years, after the withdrawal of the second complaint, had been filed; secondly in view of the fact that withdrawal of complaint under S.248, Cr.P.C., if allowed, would result in acquittal of accused---Once the complaint was withdrawn for whatever reason, and if so permitted would result in acquittal of accused---Filing of third complaint, in circumstances was illegal and uncalled for---Allowing the application, impugned order was set aside.

Abdul Rasheed Janjua v. The State 2003 YLR 2211; Muhammad Amin v. M. Ilyas Dadoo 2008 YLR 2824; Zahoor v. Said-ul-Ibrar 2003 SCMR 49 and Mazhar Hussain v. The State 1993 PCr.LJ 576 ref.

Applicant in person.

Muhammad Arif Khan for Respondent No. 1.

Nemo for Respondent No.2.

2011 P Cr. L J 946

[Karachi]

Before Tufail H. Ebrahim, J

ALLAH JURIO alias JURIAL and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. S-753 of 2010, decided on 7th February, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 343, 201, 114, 34 & 506---Qatl-e-amd, wrongful confinement for three or more days, causing disappearance of evidence of offence, criminal intimidation---Bail, grant of---Further inquiry---Accused had been nominated in the F.I.R. with specific role, but delay of 25 hours in lodging the F.I.R. and consultation and deliberation had been made prior to the lodging of F.I.R.---Incident had lasted nearly eight days, but same had gone unseen by any independent witnesses---No independent Masheers were involved at the time of recovery of dead body---No weapons had been recovered---Some contradictions were found in the F.I.R. and in the statements of the complainant's party---No complaint or F.I.R. by any relatives/friends of the complainant party had been lodged as they were allegedly confined and missing for about eight days---No torture marks appeared on complainant party and they had not been medically examined to support the version of the complainant---Medico-legal report of the deceased would be evaluated at the time of trial; and at bail stage it could not be safely concluded whether it supported the case of the prosecution or the accused---Prosecution story was not free from doubt and reasonable grounds were available for believing that accused had not committed the offence---Accused had made out a case of further inquiry within the meaning of S.497(2), Cr.P. C., entitling them to concession of bail, in circumstances.

2009 YLR 209; 2010 SCMR 584; 2006 SCMR 66; 2033 SCMR 201; NLR 1993, 791 (sic); 2003 MLD 145; 1998 PCr.LJ 968; 2010 SCMR 1171; PLD 1994 SC 133; 1995 SCMR 1765; 2007 SCMR 482; 2002 PCr.LJ 1277; 2003 YLR 1884 and 2010 SCMR 1221 ref.

Zulfiqar Ali Sangi for Applicants.

Muhammad Hamzo Buriro for the Complainant.

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

2011 P Cr. L J 952

[Karachi]

Before Gulzar Ahmed and Imam Bux Baloch, JJ

MUHAMMAD CHANNAH and another---Petitioners

Versus

PROVINCE OF SINDH through Home Secretary and 3 others---Respondents

Constitutional Petition No. D-78 of 2011, decided on 21st January, 2011.

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

----S.561-A---Inherent powers of High Court---Scope---Prima facie case---Effect---Inherent jurisdiction is not an alternative or additional jurisdiction---Such is only in the interest of justice to redress grievances for which no other procedure is available---Power given by S.561-A, Cr.P.C. cannot be so utilized as to interrupt or divert ordinary course of criminal procedure as laid down in procedural statute---Criminal cases should proceed before courts concerned in accordance with normal law---If prima facie case is made out, the proper course is that the same be tried---Mere claim of innocence by accused can never be considered sufficient to justify such departure because if the same was permitted then every accused person would opt to stifle prosecution and to have his guilt or innocence determined under S.561-A, Cr.P. C.

Chaudhary Munir v. Mst. Surriya and others PLD 2007 SC 189; Bashir Ahmad v. Zafar-ul-Islam PLD 2004 SC 298 and The State through Advocate-General Sindh High Court of Karachi v. Raja Abdul Rehman 2005 SCMR 1544 rel.

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

---S. 376(2)---Criminal Procedure Code (V of 1898), S. 561-A---Constitution of Pakistan, Art.199---Constitutional petition---Quashing of F.I.R.---Inherent powers of High Court---Scope---Complainant lady alleged that accused persons forcibly put off her clothes and committed rape (Zina-bil-Jabr)---Accused contended that F.I.R. was false and no such incident had taken place---Validity---If High Court was satisfied that false complaint had been brought and process of Court was, therefore, being abused not to advance the cause of justice but to subject accused persons to unnecessary harassment, power to quash criminal proceeding could be exercised---Extraordinary powers of High Court could ordinarily be exercised only where no provision existed in Criminal Procedure Code, 1898, to cater for redress of a grievance--Inherent power could be invoked to make departure from normal course prescribed by law only in exceptional cases of extraordinary nature and reasons must be offered to justify such a deviation---High Court declined to quash the case registered against accused persons---Petition was dismissed in circumstances.

Manzoor A. Bhutta for Petitioners.

Nemo for Respondents.

2011 P Cr. L J 971

[Karachi]

Before Aqeel Ahmed Abbasi, J

GHULAM RASOOL---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-706 of 2010, decided on 24th January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 147, 148 & 149---Qatl-e-amd and attempt to commit qatl-e-amd---Bail, refusal of---Accused had been nominated in the F.I.R. with specific role of having fired with T.T. pistol at deceased---Contention of counsel for accused was that as the complainant and prosecution witness had extended their no-objection, accused was entitled to be released on bail---Validity---Complainant and the eye-witness had extended only their no-objection, if accused was admitted to bail and had not exonerated accused from the alleged crime---Even otherwise, the complainant and said eye-witness were not the legal heirs of the deceased---Bail application of accused, was dismissed, in circumstances.

Irshad Ali R. Chandio for the Applicant.

Qazi Muhammad Bux, State Counsel.

2011 P Cr. L J 978

[Karachi]

Before Munib Akhtar, J

RAMESH KUMAR and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. S-914 of 2010, decided on 21st February, 2011.

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

----Arts. 3, 4 & 16--Import, export, transport, manufacture and owning or possessing intoxicant---Cognizance of offence---Offence under Art.3 of Prohibition (Enforcement of Hadd) Order, 1979, were distinct and separate from those under Art. 4 of the Order---Condition imposed by Art.16 of Prohibition (Enforcement of Hadd) Order, 1979 in relation to offences under Art. 4 of the Order, would not apply in respect of the offence relating to Art. 3 of the Order---Even, if a motor vehicle' was apublic place', that was not relevant in respect to an offence under Art.3 of Prohibition (Enforcement of Hadd) Order, 1979, which included the offence of "temporary" intoxicants.

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

----Ss. 497(2) & 165---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Import, export, transfer, manufacture and owning or possessing intoxicant--Bail, grant of--Further inquiry---Nothing was on record to indicate that the provisions of S.165, Cr.P.C. regarding search by Police Officer, were complied with---Samples had to be drawn from each of the cartons in which the intoxicants were found; and it was only such quantity of intoxicant which was relevant---Offence under Art.3 of Prohibition (Enforcement of Hadd) Order, 1979, did not come within the prohibitory clause and in such like cases, the grant of bail should not be regarded as the exception---Accused had been able to make out a reasonable case for grant of bail and further inquiry was required, before the extent of their involvement or otherwise in the matter could be ascertained---Accused, were admitted to bail in circumstances.

Muhammad Akram v. The State 1996 PCr.LJ 392 and Mst. Zar Bano v. The State 1989 SCMR 202 ref.

Syed Ghulam Hyder Shah for Applicants.

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

2011 P Cr. L J 985

[Karachi]

Before Tufail H. Ebrahirn, J

GUL BAHAR and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. S-962 of 2010, decided on 24th January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.394---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Voluntarily causing hurt in committing robbery and Haraabah---Bail, grant of---Further inquiry---Accused persons though were nominated in the F.I.R. and specific roles had been assigned to them, but no recovery of robbed cash and/or goods had been made from them---Delay of two and half hours in lodging F.I.R.; consultation and deliberation could not be ruled out---Incident was alleged to have taken place in broad daylight at a place situated in crowded area, but adjacent shops owners/independent witnesses had not been associated in the investigation; and the only witnesses produced were relatives of complainant party---No medical report had been produced---Allegation of personal enmity between the complainant party and one of co-accused, prima facie had made the case of prosecution doubtful---Accused had made out of a case of further inquiry within the ambit of S.497(2), Cr.P.C.---One of co-accused having been granted bail by the Trial Court, in view of rule of consistency, accused were also entitled for concession of bail.

2000 PCr.LJ 186 and 1994 PCr.LJ 471 ref.

Muhammad Tariq Maitlo for Applicants.

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

2011 P Cr. L J 990

[Karachi]

Before Bhajandas Tejwani, J

JEHANGEER---Applicant

Versus

THE STATE---Respondent

Bail Application No. 1168 of. 2010, decided on 12th November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.496-A/376---Enticing a woman and rape---Bail, grant of-Delay of five months in lodging of F.I.R. and opinion of Medical Officer was in negative---Accused was in jail since about three years and trial had not concluded---Expeditious trial of the case was a right of accused; and in case such right was denied, accused would be entitled to be considered for concession of bail---Accused was released on bail, in circumstances.

Syed Samiullah Shah for Applicant.

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

2011 P Cr. L J 996

[Karachi]

Before Shahid Anwar Bajwa, J

MUHAMMAD YAQOOB---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-1182 of 2010, decided on 9th February, 2011.

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---Delay of twenty four hours in lodging F.I.R. which otherwise was explained, could not be said to be fatal to the case of prosecution---Co-accused who was granted bail, his role was materially different from the role attributed to accused---Case of accused would not come to help accused on rule of consistency, when specific role had been attributed to accused who remained absconder for ten months---Absconder would not lose his right of bail by mere fact of absconsion, but abscondence was a circumstance which could be taken into consideration by the court while exercising its discretionamy jurisdiction for grant of bail---Absconder, in circumstances, though would not lose his right of bail, but the court considering bail application of an absconder, had to act with a much greater degree of circumspection.

Liaquat Ali Kalwar for Applicant.

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

2011 P Cr. L J 1002

[Karachi]

Before Bhajandas Tejwani, J

RANJHO---Applicant

Versus

THE STATE---Respondent

Miscellaneous Application No. 2794 of 2010 in Criminal Appeal No.S-113 of 2010, decided on 9th September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.324/353---Attempt to commit qatl-e-amd and assault---Suspension of sentence---Entire case was based on Police encounter---Five assailants were alleged to be armed with kalashnikovs who fired on the Police party, but none of the Police person had received even scratch injury---Applicability of S.324, P.P.C. would be considered at the time of disposal of the case---Sentence awarded to accused was suspended and he was released on bail.

Zulfiquar Ali Sangi for Applicant.

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

2011 P Cr. L J 1015

[Karachi]

Before Shahid Anwar Bajwa, J

NEVER DAS and 4 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. S-89 and M.As. Nos. 335, 336 of 2011, decided on 14th February, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860); Ss.364-A & 363---Kidnapping or abducting a person under the age of ten---Bail, grant of---Further inquiry---No statement under S.164, Cr.P.C. of any accused persons was available on record admitting their guilt---Alleged vehicle in which baby was alleged to have been kidnapped was not recovered on the pointation of accused---No incriminating evidence had been obtained against accused persons and no recovery had been made---Case appeared to be of further inquiry---Mere fact that alleged abductee was recovered from a female who was wife of one of the accused persons, was not a ground sufficient to conclude, at least prima facie that accused persons were connected with offence alleged against them---Accused were admitted to bail, in circumstances.

Ms. Leela alias Kalpana Devi for Applicants.

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

2011 P Cr. L J 1025

[Karachi]

Before Shahid Anwar Bajwa, J

MUHAMMAD AYAZ NIAZI---Applicant

Versus

THE STATE through FIA Commercial Bank Circle---Respondent

Criminal Bail Application No. 239 of 2011, decided on 28th March, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497-Penal Code (XLV of 1860), Ss. 409/420/468/471/109---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust by Public Servant, cheating, forgery for purpose of cheating, using as genuine a forged document and illegal gratification---Bail, refusal of--Land in question was purchased for National Insurance Corporation's employees housing colony---Accused at the relevant time was Chairman and Chief Executive of Corporation for which land was purchased---Investment Committee of the Board of Directors of Corporation comprised of accused and two other Directors who were allowed bail---Investment Committee in its meeting formed a Negotiating Committee comprising four Executives of the Corporation---Board in its meeting approved the recommendations for purchase of land at rate recommended by said Negotiating Committee---Reasonable grounds existed to believe that recommendations were based on documents, which were either forged or were managed being without any scientific basis---Role of accused was materially different from the role of co-accused who was granted bail---Co-accused was a non-Executive Director of Corporation and role assigned to him was that he had participated in the meeting of the Board of Directors, which made decisions for purchase of land whereas accused was Chief Executive of the Corporation who negotiated along with others to determine price of land in question---Principle of consistency in view of different roles, did not come to help of accused---Accused being not entitled to grant of bail; his application was dismissed, in circumstances.

Fida Hussain v. The State and others PLD 2002 SC 46 and Abdul Aziz Khan Niazi v. The State through Chairman, NAB, Islamabad, PLD 2003 SC 668 ref.

Amir Raza Naqvi and Ilyas Khan for Applicant.

Mian Khan, D.A.-G. along with Khalid Jamil, A.D. FIA and I.O. Bashir Ahmed Shaikh for Respondent.

2011 P Cr. L J 1057

[Karachi]

Before Gulzar Ahmed and Imam Bux Baloch, JJ

THE STATE/NAB through Chairman---Appellant

Versus

SIKANDAR ALI JATOI---Respondent

Criminal Acctt. Acq. Appeal No. 13 of 2010, decided on 11th December, 2010.

National Accountability Ordinance (XVIII of 1999)---

----S.32---Appeal---Limitation---Condonation of delay---Accused was acquitted by Trial Court vide order dated 27-9-2008, and after judgment passed by Supreme Court, authorities sought setting aside of the order of acquittal but Trial Court dismissed the application on 1-10-2010--Validity--- Ten days were provided under S. 32 of National Accountability Ordinance, 1999, for filing of appeal against order judgment of Accountability Court, which the authorities failed to file within the prescribed period---Authorities were incapable to explain delay in filing the appeal, therefore, merited no consideration---High Court declined to condone the delay of one year and six months in filing the appeal---Appeal was dismissed in circumstances.

Chair/Secretary, Pakistan Railways, Ministry of Railway, Government of Pakistan Islamabad and others v. Muhammad Sharif Javaid Warsi PLD 2003 SC 6; Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286; Muhammad Sharif and others v. The State 2005 MLD 1333; Dr. Muhammad Anwar Kurd and another v. The State through Regional Accountability Bureau and others 2003 YLR 2016 and Dr. Mubashir Hussain v. Federation of Pakistan PLD 2010 SC-1 ref.

Muhammad Riaz, Senior Prosecutor N.A.B. for Appellant.

Akhtar Hussain and Muhammad Masood Ghani for Respondents.

2011 P Cr. L J 1086

[Karachi]

Before Muhammad Athar Steed and Muhammad Ali Mazhar, JJ

Haji MUHAMMAD IQBAL and 2 others---Petitioners

Versus

MUHAMMAD SAEED and 4 others---Respondents

C.P. No. D-1899 of 2009, decided on 9th March, 2011.

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

----Ss. 6, 9(c) & 29---Anti-Narcotics Force Act (III of 1997), Ss.3 & 5---Criminal Procedure Code (V of 1898), Ss.103, 537 & 561-A---Constitution of Pakistan, Art.199---Quashment of proceedings---Constitutional jurisdiction and powers of High Court under S. 561-A, Cr.P.C.---Scope---Possession of narcotic drugs etc.---Accused challenged proceedings against them through constitutional petition contending that in the presence of Anti-Narcotic Force, local Police had no authority to register the F.I.R. and investigate the case---Validity---Accused having been allegedly involved in a case registered under Ss.6 & 9(c) of the Control of Narcotic Substances Act, 1997 which provided maximum penalty of death or imprisonment of life, innocence or guilt of the accused could not be determined without conclusion of the trial---Under S.29 of the Control of Narcotic Substances Act, 1997, accused was presumed to have committed the alleged offence until the contrary was proved---Section 103, Cr.P.C. made the presence of two or more respectable inhabitants of the locality mandatory at the time of search made by an officer---Application of S.103, Cr. P. C. was purposely excluded. by the legislature from searches under Control of Narcotic Substances Act, 1997 in order to avoid formalities/complications of S.103, Cr. P. C.---Exclusion of role of local Police from investigating narcotic case would negate the provisions of S.21 of the Control of Narcotic Substances Act, 1997---High Court had ample powers under Art.199 of the Constitution and S.561-A, Cr.P. C. to quash the proceedings which were ex facie illegal or where the court had arrived at a positive conclusion that the proceedings were ex facie coram non judice---High Court could exercise jurisdiction in exceptional cases without waiting for the Trial Court to pass orders under S.249-A or 265-K, Cr.P.C.---Where no offence was made out by facts on record, allowing prosecution to proceed with the trial would amount to abuse of the process of law---Assumption of jurisdiction without lawful authority could be quashed in constitutional jurisdiction---Section 537, Cr.P.C. provided that no finding, sentence, order passed by a court of competent jurisdiction would be reversed or altered on account of any error, omission or irregularity in the complaint, report by Police Officer under S.173, Cr.P.C. summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or any inquiry or other proceeding under the Criminal Procedure Code---Police had not violated any law by arresting the accused---Petition was dismissed accordingly.

State Life Insurance Corporation v. Jaffar Hussain PLD 2009 SC 194; Syed Murad Ali Shah v. Government of Sindh PLD 2002 Kar. 464; Maritime Security Agency, Karachi v. Muhammad Saleem Khan PLD 1994 SC 486; State v. Bashir PLD 1997 SC 408; Ali Hussain v. Presiding Officer, Special Court PLD 1989 Kar. 157; Ch. Alla-ud-Din v. S.S.P. District Sargodha 1999 PCr.LJ 1909; Mst. Mumtaz Begum v. The State 1968 PCr.LJ 97 and Muhammad Yaqoob v. The State 1978 PCr.LJ 812 ref.

Zafar v. The State 2008 SCMR 1254; 2001 SCMR 36; 2003 SCMR 881; PLD 2004 SC 394; The State v. Abdali Shah in Criminal Petition No. 3-K of 2008; Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192 and Habib Ahmed v. M.K.G. Scott Christian PLD 1992 SC 353 fol.

Muhammad Anwar Tariq for Petitioners.

Muhammad Ashraf Khan Mughal, Deputy Attorney-General.

Saifullah, Assistant Advocate-General.

Ms. Akhtar Rehana, Additional Prosecutor-General.

Ashfaq Hussain Rizvi, Special Prosecutor ANF.

2011 P Cr. L J 1133

[Karachi]

Before Muhammad Athar Saeed and Irfan Saadat Khan, JJ

MURAD ALI and another---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeal No. 229 of 2007 along with confirmation Case No. 5 of 2007, decided on 19th April, 2011.

Penal Code (XLV of 1860)---

----S. 302(a)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Marked contradictions existed with regard to the place of vardat, place from where the dead body was found, the distance from where accused fired at the deceased and the deposition of prosecution witness and statement given under S.164, Cr.P.C.---Contradiction was found in the deposition of prosecution witness with regard to place of arrest of accused and recovery of the crime weapon---Ocular testimony had contradicted the medical evidence---Recovery of crime weapons was not only doubtful, but same, were sent for expert opinion after a delay of seven days---Number of improvements were made in the prosecution case which had also made the case doubtful---Enmity between the complainant and accused ,had been admitted---Tapedar had prepared the sketch on the instructions of the complainant---:Capital punishment could not be awarded in the case where the prosecution had failed to prove its case through unimpeachable ocular testimony---Single Mashirnama for the recovery of both the crime weapons was prepared, which had also made the case quite doubtful---Incidence took place when three prosecution witnesses were present, but they neither showed any resistance nor made any attempt to overpower the accused, or try to rescue the deceased from the clutches of accused---Witnesses were close relatives of the deceased and no independent or private person was either examined or made Mashir in the case---Witnesses appeared to be interested witnesses and the court in a case involving capital punishment would not base conviction of accused solely on the testimony of interested witnesses---Unnecessary delay took place in recording the statements by the Police without any explanation---Prosecution having failed to prove its case against accused beyond any reasonable doubt, benefit of doubt had to be given to accused---Conviction and sentence awarded to accused were set aside, they were acquitted and released, in circumstances.

Sirajuddin v. Kala and others PLD 1964 SC 26; Muhammad Siddique and another v. The State PLD 1960 SC 223; Sahib Gul v. Ziarat Gul 1976 SCMR 236; Saeed Muhammad Shah v. The State 1993 SCMR 550; Raham Ali v. The State 1976 PCr.LJ 17; Mehmood Ahmed v. The State 1995 SCMR 127; Bagh Ali v. The State PLD 1973 SC 321; Thoba v. The State PLD 1963 SC 40; Atta Muhammad V. The State 1995 SCMR 599; Ziaullah v. The State 2008 SCMR 1210; Rehmatullah v. Muhammad Iqbal 2006 SCMR 1517; Muhammad Bashir v. The State 2005 PCr.LJ 1135; 1991 PCr.LJ 174; Nawaz Ali v. The State 1981 SCMR 132; M. Shafiq v. The State PLD 2008 Lah. 268; Jehangir v. Nazar Fareed 2002 SCMR 1986; Tayyab Hussain Shah v. The State 20Q0 SCMR 683; Yamin Kumhar v. The State PLD 1990 Kar. 275; Nazeer v. The State PLD 1989 Kar. 466; State v. Ihsan Shah 1989 PCr.LJ 2234; PLD 1990 Pesh. 10; Muneer Ahmed v. The State 2001 SCMR 56; Aashiq Ali v. The State 2005 PCr.LJ 48; Asif Ali Zardari v. The State PLD 2001 SC 568; Din Muhammad v. Crown 1969 SCMR 777; 2001 SCMR 1474; Mir Muhammad v. The State 1995 SCMR 640; Muhammad Ilyas v. The State 2006 SCMR 1761; Dilbar Masih v. The State 2006 SCMR 1801; 2001 SCMR 1842(sic.); Mst. Robina Bibi v. The State 2001 SCMR 1914; Amin Ali v. The State 2011 SCMR 323; Haji Rab Nawaz v. Sikandar Zulqarnain and 7 others 1998 SCMR 25; Iqbal alias Bhala v. State 1994 SCMR 1 and Sultan and others v. The State 1987 SCMR 1177 ref.

Muhammad Ashraf Kazi for Appellants.

Abdul Rehman Kolachi, A.P.-G. for the State.

Dates of hearings: 29th and 31st March, 2011.

2011 P Cr. L J 1156

[Karachi]

Before Munib Akhtar, J

MUHAMMAD YOUSIF and another---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeal No. S-173 of 2007, decided on 7th March, 2011.

Penal Code (XLV of 1860)---

----Ss. 302 & 34---Qanun-e-Shahadat (10 of 1984), Art.40---Qatl-e-amd, acts done by several persons in furtherance of common intention---Appreciation of evidence---Whether the common intention was pre-arranged or was developed/formed, had to be properly established by the evidence---Factum of common intention, in the present case, was not proved beyond reasonable doubt---Trial Court committed material irregularity by accepting the evidence of the witness regarding alleged confession of the accused before the police which was inadmissible under Art.40 of the Qanun-e-Shahadat, 1984---Blood stained hatchet was sent to the Chemical Examiner by delay of two years which delay would erode the credibility of evidence in certain cases---Where blood-stained weapon/item was sent for chemical examination with delay, effect depended upon the attending circumstances and nature and quality of evidence---Testimony of witnesses remained unshaken---Witnesses were not inimical to the accused and their presence at the place of occurrence appeared natural---Medical evidence was consistent with ocular testimony---Prosecution proved its case beyond reasonable doubt against the main accused---Trial Court had erred in the case of co-accused whose appeal was allowed by High Court---Appeal of the main accused was dismissed.

Muhammad Yaqoob v. The State PLD 2001 SC 378; 1955 SCR 1083; 1955 Cr.LJ 572; PLD 1969 SC 158; AIR 1960 SC 889 and AIR 1956 All. 341 (DB) ref.

Mst. Askar Jan and others v. Muhammad Daud and others 2010 SCMR 1604 and Muhammad Zubair and another v. The State 2002 SCMR 1141 fol.

Gulla v. The State 1981 PCr.LJ 732 and Khamiso v. The State 1981 PCr.LJ 898 rel.

Ms. Nasira Shaikh for Appellants.

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

2011 P Cr. L J 1169

[Karachi]

Before Imam Bux Baloch, J

ALLAH DAD and 7 others---Applicants

Versus

THE STATE---Respondent

Criminal Revision Application No. 115 and M.A. No. 1189 of 2007, decided on 9th April, 2010.

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

----S. 173---Penal Code (XLV of 1860), Ss. 364/148/149/452---Abduction in order to murder; rioting armed with deadly weapons; house-trespass after preparation for hurt, assault or wrongful restraint---Investigating Officer after completing the investigation had recommended the case as cancelled "B" class and after obtaining the permission from the competent authority had submitted the report under S. 173, Cr.P.C. before the Magistrate---After having perused the summary and the material collected during investigation, Magistrate vide impugned order directed the Investigating Officer to submit the challan before the competent court---Contention that the Magistrate had not applied his judicial mind in the matter was not correct---Magistrate under S. 173, Cr.P.C. was not duty bound to act on the ipse dixit of the police---Magistrate had scrutinized the material available in the report submitted under S. 173, Cr.P.C. by the Investigating Officer and thereafter had concluded that a prima facie case for submission of challan in the court was made out and hence he had directed the Investigating Officer to submit the challan---Impugned order, therefore, could not be termed as a non-speaking, perverse or capricious order---Petition was dismissed in circumstances.

Miraj Khan v. Gul Ahmed 2000 SCMR 122; Soofi Abdul Qadir v. The State 2000 PCr.LJ 520; Hussain Ahmad v. Irshad Bibi 1997 SCMR 1503; Muhammad Haseenuddin v. The State 1987 PCr.LJ 2096; State v. Ashiq Ali Bhutto 1993 SCMR 523; Safdar Ali v. Zafar Iqbal 2002 SCMR 63; Mehrab v. Emperor (F.B.) 26 Cr.LJ 181; Lal Bihari Singh v. Emperor 31 Cr.LJ 55; Falak Sher v. The State PLD 1967 SC 425; Muhammad Akbar v. The State 1972 SCMR 335 and Khushbakhtur Rehman v. The State 1985 SCMR 1314 ref.

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

----Ss. 190, 191 & 173---Cognizance of offence by Magistrate---Magistrate while taking cognizance under S. 190(1)(b), Cr.P.C. on a police report takes cognizance of the offence and not merely of a particular person charged in the report as an offender---Magistrate, therefore, can issue process against other persons who also appear to him to be concerned in the commission of the offence on the basis of police report and other material placed before him, and in doing so Magistrate does not act under Cl. (c) of S. 190(1), Cr.P.C. and S. 191, Cr.P.C. is not applicable.

Safdar Ali v. Zafar Iqbal 2002 SCMR 63; Mehrab v. Emperor (F.B.) 26 Cr.LJ 181 and Lal Bihari Singh v. Emperor 31 Cr.LJ 55 ref.

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

----Ss. 190 & 173---Cognizance by Magistrate---Magistrate even on the first report submitted under S. 173, Cr.P.C. can take cognizance irrespective of the opinion of the Investigating Officer to the contrary if upon the material before him he finds that a prima facie case is made out against the accused---Police is not the final arbiter of a complaint lodged with it; it is the court that finally determines upon the police report whether it should take cognizance or not in accordance with the provisions of S. 190(1)(b), Cr.P.C.

Muhammad Akbar v. The State 1972 SCMR 335 ref.

Messrs Ali Azhar Tunio and Noor Ahmed Malik for Applicants.

Miss Rubina Dhamrah State counsel.

2011 P Cr. L J 1180

[Karachi]

Before Ghulam Sarwar Korai, J

Mst. SAJIDA ARAIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 179 of 2011, decided on 11th March, 2011.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 344/357/371-A/371-B---Wrongful confinement for ten or more days, assault or criminal force used in attempt to wrongfully confine a person, selling person for purposes of prostitution etc., buying person for purposes of prostitution etc.---Pre-arrest bail, grant of---Accused had allegedly come to a shrine to purchase the complainant---Contents of the F.I.R., even if believed in toto, did not fall within the definition of any of the sections of P.P.C. mentioned therein---Neither the complainant was purchased, nor any force was used by the accused in this regard---Accused was a lady and there was no other allegation against her in the F.I.R.---After the release on interim pre-arrest bail accused lady had not misused the same and she had cooperated in investigation---Interim pre-arrest bail allowed to accused was confirmed in circumstances.

Iftikhar Ahmed Gohar for the Applicant.

Muntazir Mehdi, A.P.-G. for the State.

2011 P Cr. L J 1184

[Karachi]

Before Muhammad Tasnim, J

GHULAM HUSSAIN and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. S-384 of 2010, decided on 30th August, 2010.

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

----S. 497---Bail, grant of---Accused was not nominated in the F.I.R. and no role had been assigned to him---State Counsel had no objection if accused was admitted to bail---Accused was admitted to bail, in circumstances.

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

----S. 497---Bail, refusal of---No case for grant of bail had been made out by co-accused---Even otherwise counsel for accused persons did not press bail for said co-accused---With consent of the parties three months time was granted to the Trial Court to conclude the trial.

Raham Ali Jatoi for Applicants.

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

2011 P Cr. L J 1200

[Karachi]

Before Muhammad Tasnim, J

BAHAWAL alias NAANG---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-440 of 2010, decided on 29th July, 2010.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotics---Bail, grant of---Deeper appreciation of the evidence at bail stage could not be gone into, but only it was to be seen as to whether accused was prima facie connected with the alleged offence or not---In the present case Police acted on the spy information, whereas Police must have associated some private persons during alleged arrest---Delay of seven days in sending the substance to the Laboratory, had not been explained---Accused was admitted to bail, in circumstances.

Hakim Mumtaz Ahmed v. The State PLD 2002 SC 590; Hamza v. The State 2000 PCr.LJ 1360 and Hakeem Jamali v. The State 2009 PCr.LJ 695 ref.

Sadaruddin Buriro for the Applicant.

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

2011 P Cr. L J 1205

[Karachi]

Before Imam Bux Baloch and Nisar Muhammad Shaikh, JJ

RAJIB ALI---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No. D-38 of 2004, decided on 1st June, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---No motive had been assigned to accused for commission of crime---No empty cartridge was recovered from the place of incident by the police---Ocular testimony was not corroborated by any independent evidence---Accused had fired a single shot and did not repeat the same---Accused had remained in jail for more than seven years---Conviction of accused was maintained, but his sentence of death was altered to imprisonment for life in circumstances.

Ansar Ahmad Khan Barki v. The State 1993 SCMR 1660 and Allah Ditta v. The State 2007 YLR 811 ref.

Inayatullah Morio for Appellant.

Naimatullah Bhurgri, State counsel.

Date of hearing: 1st June, 2010.

2011 P Cr. L J 1216

[Karachi]

Before Abdul Hadi Khoso and Syed Zakir Hussain, JJ

THE STATE through Advocate-General Sindh/Public Prosecutor Sindh---Appellant

Versus

MUHAMMAD JUMAN and another---Respondents

Criminal Acquittal Appeals Nos. 179 of 1995 and D-07 of 2006, decided on 25th November, 2010.

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

----S. 417(2-A)---Penal Code (XLV of 1860), Ss.302/324---Qatl-e-amd and attempt to commit qatl-e-amd---Appeal against acquittal---Benefit of doubt---Prosecution did not examine the injured person in the case without any legal excuse giving rise to the presumption that had he been examined, he would not have supported the prosecution case---Said witness being eye-witness was very much material as he was injured---Other person who was material, had died being victim of incident, whereas other eye-witnesses including the complainant, were inter se closely related and were bound to support each other---Secured weapons and empties were not sent to the expert, while the blood stained material though referred to the expert but being delayed by a term of more than two years in point of dispatch thereof, could hardly carry any weight---Prosecution had failed to prove the guilt of accused beyond shadow of any reasonable doubt---Trial Court, in circumstances, had acquitted them on the ground of benefit of doubt in the interest of justice---Acquittal judgment of like nature would make a case of accused as one of presumption of double innocence---State Counsel had not been able to satisfy the court that impugned judgment suffered from any error or illegality based on non-application and misreading of the produced material of the prosecution causing miscarriage of justice---Appeal was dismissed, in circumstances.

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

----Ss. 302 & 324---Qatl-e-amd and attempt to commit qatl-e-amd---Appreciation of evidence---Benefit of doubt---Simple circumstance, as a matter of law, which would create doubt as to the guilt of accused to the offence, he was charged with, was sufficient to make him entitled to acquittal.

Tariq Parvez v. The State 1995 SCMR 1345; Ilyas v. The State 1997 SCMR 25 and Ghulam Qadir and others v. The State 2008 SCMR 1221 ref.

Altaf Hussain Surahio, State Counsel for the State.

Respondents in person.

Date of hearing: 25th November, 2010.

2011 P Cr. L J 1226

[Karachi]

Before Syed Zakir Hussain, J

ABDUL WAHID---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. S-32 of 2009, heard on 2nd December, 2010.

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

----S. 13(d)---Possessing unlicensed arm---Appreciation of evidence---Alleged recovery of weapon in question was effected in presence of Mashirs, who at the trial, disowned the accused and the crime property---Said Mashirs were declared hostile and were cross-examined, but of no use as such exercise failed to rebut their such statement---Other two witnesses had admitted to have not sealed the said recovered weapon---Accused stood acquitted in the main case, as a result of compromise between the parties under S.345, Cr.P.C.---State Counsel did not oppose the grant of appeal---Impugned judgment was set aside, in circumstances.

Nisar Ahmed G. Abro for Appellant.

Miss Rubina Dhamrah for the State.

Date of hearing: 2nd December, 2010.

2011 P Cr. L J 1244

[Karachi]

Before Muhammad Tasnim, J

SIKANDAR alias DARA and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. S-531 of 2010, decided on 5th August, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 337-H(2), 147, 148, 149 & 114---Qatl-e-amd, attempt to commit qatl-e-amd and rash and negligent act---Bail, grant of---Further inquiry---Deeper appreciation of the evidence could not be gone into at bail stage, however prima facie, it was to be seen as to whether accused were connected with the offence or not---No material existed to connect accused persons with the commission of the offence as no role had been assigned to accused persons, except that they were armed with weapons and they made aerial firing---No injury was caused by accused persons to any one present at the site---Only injury sustained by the deceased, was on the right side of the neck and as per medical report only one injury exit and entry had been shown---F.I.R. was lodged after delay of about 15 hours without any explanation for such delay---Delay of 19 days was taken recording the statement under S.161, Cr.P.C.---Delay in recording the statement of witness by the Police without furnishing any plausible explanation was fatal to prosecution case; and the statement of such witness was not to be relied upon---No recovery was made from accused---Case against accused persons attracted provisions of subsection (2) of S.497, Cr.P.C. calling for further enquiry in the matters; accused were admitted to bail, in circumstances.

Muhammad v. The State 1998 SCMR 454; Attaullah and 3 others v. The State 1999 SCMR 1320; Muhammad Sadiq and others v. The State 1996 SCMR 1654; Abdul Sattar and others v. The State 2009 PCr.LJ 575; Suba Khan v. Muhammad Ajmal and 2 others 2006 SCMR 66; Rahat Ali v. The State 2010 SCMR 548 and Muhammad Arshad v. The State 2006 SCMR 966 rel.

Amanullah Malik for Applicant.

Qurban Ali Malano for the Complainant.

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

2011 P Cr. L J 1273

[Karachi]

Before Muhammad Tasnim, J

GHULAM ABBAS and another---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeal No. S-122 of 2009, decided on 8th October, 2010.

Penal Code (XLV of 1860)---

----Ss. 302 & 201---Qatl-e-amd, causing disappearance of evidence of offence or giving false information to screen offender---Appreciation of evidence---Benefit of doubt---Prosecution failed to establish motive for commission of offence by accused---Delay of four days in lodging F.I.R. was not explained plausibly---Complainant did not report the disappearance of his missing son to Police---Accused allegedly came to take the deceased with them but no last-seen evidence was produced by prosecution---Witnesses testified on the basis of hearsay evidence of the only eye-witness of the case---Eye-witnesses did nothing to run away for safety or save the deceased from accused while they were all engaged in catching hold of the deceased, therefore, solitary statement of the said eye-witnesses could not be believed---Contradictions in statements of witnesses made the case of prosecution highly doubtful---Recovery of dead body was not effected on pointation of accused---Medical evidence contradicted statements of witnesses and did not connect the accused with commission of offence---Prosecution failed to prove its case beyond shadow of doubt---Extending the accused benefit of doubt, High Court acquitted them setting aside conviction and sentence awarded by Trial Court.

Qabal Shah and others v. The State PLD 1960 Kar. 697; Muhammad Khan v. Moula Bux and another 1998 SCMR 570; Nazoo alias Ali Nawaz v. The State 1977 SCMR 20; Mujahid Hussain v. The State 1985 SCMR 1573; 2007 SCMR 778; 1996 SCMR 188; 2006 SCMR 1791; 2010 SCMR 401; PLD 1980 SC 223; PLD 2004 SC 663; 1985 PCr.LJ 349; PLD 2002 SC 62; PLD 1986 Sh.C (AJ&K) 74; 2000 PCr.LJ 1665; 2008 SCMR 1049; 2009 SCMR 523; Muhammad Ehsan v. The State 2006 SCMR 1857; Allah Bakhsh v. Shammi and others PLD 1980 SC 225; Zafar Iqbal v. The State and another 2010 SCMR 401; Bin Yamin alias Khari and others v. The State 2007 SCMR 778; Ajmal Khan v. The State 2004 PCr.LJ 313 and Muhammad Ashraf and others v. The State 2005 PCr.LJ 1321 ref.

Gul Muhammad alias Guloo and another v. The State 1974 PCr.LJ 400 and Muhammad Dilwar Khan and 2 others v. The State PLD 2004 Kar. 319 rel.

Imran Ashraf and 7 others v. The State 2001 SCMR 424 fol.

Syed Mushtaque Hussain Shah and Miss Rizwana Jabeen Siddiqui for Appellants.

Ghulam Shabir Dayo for the Complainant.

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

Date of hearing: 22nd September, 2010.

2011 P Cr. L J 1292

[Karachi]

Before Sajjad Ali Shah, J

ABDUL WAHID BURIRO and 5 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos. S-39 and S-173 of 2011, decided on 8th April, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/365/395/147/ 148/149---Qatl-e-amd, attempt to commit qatl-e-amd, kidnapping and dacoity---Bail, refusal of---All accused persons who were Police Officials, had been specifically named in the F.I.R.; they had been shown duly armed with specific role i.e., firing making complainant party hostage on gun point and looting the complainant party---No enmity whatsoever existed between the complainant and accused, nor it had been pleaded---Question of false implication at that juncture, did not arise---F.I.R. specifically mentioned that the complainant party had identified accused persons on the light of bulbs---Delay of 12 hours in lodging F.I.R., had properly and satisfactorily been explained---Offence with which accused were charged fell within the prohibitory clause of S.497, Cr.P.C. and case of accused did not fall within the guidelines provided by the Supreme Court---Bail applications were dismissed, in circumstances.

Muhammad Ashiq Hussain v. The State 2004 PCr.LJ 1890; Abdul Sattar Narejo v. The State 2003 PCr.LJ 398; Muhammad Dilpazeer v. The State 1984 PCr.LJ 2400 and Rafique Ahmed v. The State 2000 PCr.LJ 994 ref.

Sarfaraz Khan Jatoi for Applicants (in Criminal Bail Application No. S-39 of 2011).

Muhammad Siddique Abbasi for Applicant (in Criminal Bail Application No. S-173 of 2011).

Shahid Ahmed Shaikh, Assistant P.-G. for the State.

Riazat Ali Sahar for Complainant.

Dates of hearings : 1st and 8th April, 2011.

2011 P Cr. L J 1300

[Karachi]

Before Muhammad Ali Mazhar, J

NABI BUX---Appellant

Versus

THE STATE and 4 others---Respondents

Criminal Acquittal Appeal No. S-365 of 2010, decided on 9th May, 2011.

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

----Preamble, Ss.3, 4, 7 & 8---Purpose of Illegal Dispossession Act, 2005---Illegal Dispossession Act, 2005 was a special law which had been promulgated to protect the lawful owners and occupiers of immovable property from their illegal or forcible dispossession by the property grabbers---Provisions of S.3 of Illegal Dispossession Act, 2005 were very clear and unambiguous and its scope was wide enough to cover the class of persons mentioned in the Preamble of the Act---Said Act was applicable to dispossession of a person from property by any person including land grabbers, qabza group or land mafia---For the purposes of attracting provisions of S.3 of Illegal Dispossession Act, 2005, court was required firstly to examine as to whether property was an immovable property; secondly that the person was owner or the property was in his lawful possession; thirdly that accused entered into or upon the property unlawfully; fourthly that such entry was with intention to dispossess i.e. ouster, evict or driving out of possession against the will of person in actual possession or to grab i.e. capture, seize suddenly, take greedily or unfairly, or to control i.e. to exercise power or influence over, regulate or govern or related to authority over what was not in one's physical possession; or to occupy i.e. holding possession, reside in or something---If act of accused would come within the meaning of any of the words viz. dispossess, grab, control or occupy on the date, when Illegal Dispossession Act, 2005 was promulgated, then action could be initiated as provided under S.4 of the Act---Law had made it clear that a person who was proved guilty would not save him from the punishment for which he could be liable under any other law for the time being in force---Provisions of S.3(2) of Illegal Dispossession Act, 2005 was salutary and mandatory and it was with the purpose to alleviate the suffering and also was effective deterrent against crime---Legislature had taken full care to close all doors of any injustice to the parties.

?????? 2010 SCMR 1254 ref.

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

----Ss.3,4, 7 & 8---Criminal Procedure Code (V of 1898), S.417(2-A)---Illegal dispossession---Appeal against acquittal---Trial Court though had acquitted the accused person, but it was held that the complainant was entitled to get his possession over the land in question under S.8(2) of Illegal Dispossession Act, 2005---Order passed by the Trial Court was totally vague and uncertain; it was not clear from the findings as to in whose possession the property was and from whose possession said property in question was to be restored to the appellant/complainant---Fact that whether the property in question was under illegal occupation and possession of the respondents/accused was also not clear---Trial Court had merely passed a declaration that the complainant was entitled to get the possession of the land in question, but no directions had been issued to accused or any person claiming through him for restoration of the possession of the property to the owner---Mere declaration and directions to accused for restoration of possession was totally ineffective and insufficient without the aid and assistance of Police---Under S.8(2) of Illegal Dispossession Act, 2005, it was clearly provided that for the purpose of S.8(1) of the Act the court could, where it was required, direct the officer-in-charge of the Police Station for such assistance as could be required for restoration of the possession of the property to the owner or as the case could be to the occupier---Word "may" used in S. 8, was not directory, but mandatory in nature for speedy and expeditious justice without which the true spirit and rationale of that section could never be achieved---No separate provision or procedure had been endowed with Illegal Dispossession Act, 2005 for the execution or implementation of the order of the Trial Court---Precise provision and mechanism had been provided for the court if on conclusion of trial, the court would find that an owner or occupier of the property was illegally dispossessed or property was grabbed in contravention of S.3 of the Act, the court could at the time of passing order direct accused or any person claiming through him for restoration of the possession of the property to the owner; and for the purposes of execution and implementation of order, the court was also required to direct officer-in-charge of the Police Station for such assistance as could be required for restoration of the possession---Trial Court while passing impugned judgment, had failed to apply the correct approach of law and passed an incomprehensible and patently improbable judgment, that to accept it could amount to perpetuating a grave miscarriage of justice---Impugned judgment was set aside with direction to the Trial Court to pass a speaking order in accordance with law within a period of two months after hearing the parties.?

(c) Interpretation of statutes---

----Golden rule for determining whether a particular provision was directory or mandatory in nature, was to determine the same in the light of the scheme of a particular statute---Nature and purpose of the provision was to be ascertained from the intention of the legislature---Word "may" was not always used in the statute with the intention and purpose to give uncontrolled powers to the authority, rather oftenly it was used to maintain the status of the authority on whom discretionary power was conferred as an obligation---Legislative expression in the permissive form, sometimes was construed mandatory; it was, however, only in exceptional circumstances in which a power was conferred on a person by saying that he could do a certain thing in his discretion, but from the indication of the relevant provisions and the nature of the duty to be done, it appeared that exercise of power was obligatory---Such was an accepted principle of law that in a case in which the statute authorized a person for exercise of discretion to advance in the cause of justice, the power was not merely optional, but it was the duty of such person to act in the manner it was intended.

?????? 2004 PTD 2187 ref.

?????? Hakim Ali Siddiqui for Appellant.

?????? Syed Meeral Shah, D.P.-G. for the State.

?????? Nemo for Respondents Nos. 2 to 5.

?????? Date of hearing: 9th May, 2011.

2011 P Cr. L J 1310

[Karachi]

Before Aqeel Ahmed Abbasi, J

MUHAMMAD SHAUKAT---Applicant

Versus

THE STATE and 2 others---Respondents

Criminal Revision Application No. 45 of 2011, decided on 21st April, 2011.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Release of vehicle on superdari---Applicant had assailed order passed by the Magistrate whereby his application for release of his vehicle was dismissed---Contention of applicant was that neither he was required in the case nor vehicle in question had been declared as case property---Alleged offences mentioned in the F.I.R. were bailable, whereas accused persons nominated therein had been granted bail, but vehicle owned by the applicant had not been released to him---Impugned order was set aside and the Trial Court was directed to release the vehicle to the applicant upon proper verification and identification, subject to furnishing solvent surety.

PLD 1974 SC 5; PLD 2002 Pesh. 87; 2002 PCr.LJ 97 and 2005 PCr.LJ 952 ref.

Syed Amir Hyder Naqvi for Applicant.

Abdul Rehman Kolachi, A.P.-G. along with A.S.-I. Ahmed Mustafa, Police Station Shahre Faisal for Respondents.

2011 P Cr. L J 1320

[Karachi]

Before Gulzar Ahmed and Imam Bux Baloch, JJ

ISMAIL and 5 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 118 of 2007, heard on 1st February, 2011.

Penal Code (XLV of 1860)---

----Ss. 302, 337-A(i) & 452---Qatl-e-amd, causing Shajjah-i-Khafifah and house-trespass---Appreciation of evidence---Benefit of doubt---Earlier, complainant had named five persons in the F.I.R. (other than the accused person) as accused for commission of the offence and Police arrested said five persons---Subsequently, after 5 months of the incident, complainant in his further statement mentioned names of accused persons as culprits---Prosecution witnesses who were sons of the complainant, had also made said improvement in their further statements---Prosecution witnesses had made said improvement in order to strengthen the prosecution case---Delay of five months in recording such supplementary statement would be an important factor which was likely to give rise to inference that second version contained in the statements was introduced by the prosecution after deliberation, which would adversely affect the prosecution case---No mashir had been examined to corroborate the version of S.H.O. regarding the recovery of gun and rifle---Alleged crime weapon had not been produced during the trial---Such fact had also created doubt on the prosecution case---All such factors were creating doubt in the prosecution case; and if only one circumstance created doubt in a prudent mind, then the benefit of doubt was to be extended in favour of accused, not as a grace, but as a right---Prosecution having failed to prove its version, impugned judgment passed by the Trial Court was set aside and accused was acquitted of the charge and he was directed to be released.

Falak Sher v. The State 1995 SCMR 1350; Khalid Javed and another v. The State 2003 SCMR 1419; Ghulam Akbar and another v. The State 2008 SCMR 1064; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Muhammad Fazil and another v. The State 2006 SCMR 1432; Muhammad Khan v. The State 1999 SCMR 1220; Muhammad Akram v. The State 2009 SCMR 230; Muhammad Rafique and others v. The State 2010 SCMR 385 and Tariq Parvez v. The State 1995 SCMR 1345 ref.

Raja Qureshi and Muhammad Riaz Abbasi for Appellants.

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

Date of hearing: 1st February, 2011.

2011 P Cr. L J 1334

[Karachi]

Before Gulzar Ahmed and Imam Bux Baloch, JJ

SAFAR-UR-REHMAN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 169 of 2009, decided on 25th April, 2011.

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

----S. 9(c)---Possessing narcotics---Appreciation of evidence---Serious contradictions on material aspects of the case appeared in prosecution evidence---Veracity of the F.I.R. and memo. of recovery and arrest, meant to connect the accused with the crime having not been unanimously proved by the prosecution witnesses, the same had made the prosecution case doubtful---Absence of prosecution evidence regarding sending of the sample of contraband "Charas" to Chemical Examiner, or it being highly contradictory, had made his report unreliable---Material allegedly recovered from the accused was not produced in the court at the trial, rather some other material had been introduced in evidence, for which there was no explanation---Packet of "Charas" from which sample was statedly taken had been produced in the court in unsealed condition and thus tampering thereof could not be ruled out---Only one circumstance creating reasonable doubt in a prudent mind about the guilt of accused would be sufficient to make him entitled to benefit of doubt, whereas many such circumstances were available in the present case, which did not justify the conviction of accused---Accused were acquitted in circumstances.

Gulshan Ara v. The State 2010 SCMR 1162 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

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

----S. 9(c)---Possessing narcotics---Appreciation of evidence---Benefit of doubt, extension of---Concept of benefit of doubt is deep rooted in the judicial system---Single circumstance, and not many creating reasonable doubt in a prudent mind about the guilt of accused, would entitle him 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 ref.

Muhammad Ashraf Kazi for Appellants.

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

Date of hearing: 18th December, 2010.

2011 P Cr. L J 1342

[Karachi]

Before Gulzar Ahmed and Imam Bux Baloch, JJ

IQBAL SHAH and another---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeal No. 87 of 2009, decided on 28th April, 2011.

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

----Ss. 9(c) & 25---Possessing narcotics---Appreciation of evidence---Examination of private persons was not the requirement of law in terms of S. 25 of the Control of Narcotic Substances Act, 1997---Reluctance of general public to become witness in such cases was now a judicially recognized fact and no option was left but to consider the statements of official witnesses, for which there was no legal bar---Police officials were as good witnesses to be relied upon, if their testimony had remained unshattered during cross-examination--- Recovery of "Charas" having not been disputed, delay in sending the samples to Chemical Examiner without any suggestion of tampering with the same per se, would not make the report of Chemical Examiner unreliable---Prosecution evidence with regard to the recovery of "Charas" from the accused inspired confidence and did not suffer from any legal infirmity, material contradictions or dishonest improvements---Prosecution witnesses had no enmity with the accused to involve them in a false case---No mitigating circumstance was available to reduce the sentence of accused---Appeal was dismissed in circumstances.

Nazeer Ahmed v. The State PLD 2009 Kar. 191; Khan Bacha v. The State PLD 2006 Kar. 698; Yameen Kumhar v. The State PLD 1990 Kar. 275; State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408; Shaukat Ali v. The State 2004 YLR 356; Muhammad Sharif v. The State 1998 PCr.LJ 1293; Mst. Shabana Riyasat v. The State PLD 2006 Kar. 325; Ali Hassan v. The State PLD 2001 Kar. 369; S. Mahmood Alam Shah v. The State PLD 1987 SC 250; Umer Rehman v. The State PLD 2009 Kar. 284; Ashiq Hussain alias Muhammad Ashraf v. The State PLD 1994 SC 879; Khalid Javed and another v. The State 2003 SCMR 1419; Muhammad Shah v. The State 2010 SCMR 1009; 1995 SCMR 1345; Niaz-ud-Din v. The State 2007 SCMR 206; Criminal Petition No. 103-K of 2008; Sarfraz Gul v. The State PLD 2004 SC 334; Muhammad Mushtaq and another v. The State 2008 SCMR 742; Muhammad Naeem alias Naeema v. The State 1992 SCMR 1617; Muhammad v. The State PLD 1981 SC 635; Shaukat Khan v. The State 2003 PCr.LJ 324; Muhammad Azam v. State PLD 1996 SC 67; Ali Muhammad v. The State 2003 SCMR 54 and Tariq Mehmood v. The State PLD 2009 SC 39 ref.

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

----S. 9(c)---Possessing narcotics---Appreciation of evidence---Police witnesses---Police officials are good witnesses and they can be relied upon if their testimony remains unshattered during cross-examination.

Muhammad Naeem alias Naeema v. The State 1992 SCMR 1617; Muhammad v. The State PLD 1981 SC 635; Shaukat Khan v. The State 2003 PCr.LJ 324 and Muhammad Azam v. State PLD 1996 SC 67 ref.

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

----S. 9(c)---Possessing narcotics---Appreciation of evidence---Delay in sending the sample of the recovered material to Chemical Examiner---Effect---Recovery of "Charas" in the present case, was not disputed and therefore delay without any suggestion of tampering with the samples, per se, will not be sufficient to make the report of Chemical Examiner unreliable.

Ali Muhammad v. The State 2003 SCMR 54 and Tariq Mehmood v. The State PLD 2009 SC 39 ref.

Mehmood A. Qureshi for Appellants.

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

Dates of hearings: 24th, 26th November, 2010 and 3rd December, 2010.

2011 P Cr. L J 1362

[Karachi]

Before Shahid Anwar Bajwa, J

MIR KHAN---Applicant

Versus

ALLAH WADHAYO PITAFI/SIP/SHO POLICE STATION

PIR JO GOTH and 14 others---Respondents

Criminal Revision No. 31 of 2009, decided on 14th February, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 200 & 439---Dismissal of complaint---Statement was recorded under S.200, Cr.P.C. as also statements of three witnesses---Many allegations were levelled in the complaint viz. illegal trespass; illegal confinement; looting; taking away the articles; receiving bribe and that of torture---Interest of justice would be served, if impugned order was set aside and matter was remanded to the Trial Court to consider the entire material available before it; if it deemed necessary to summon other witnesses; to record their statements before final decision and thereafter pass a well reasoned and well considered order on the direct complaint.

Muhammad Fayaz Khan v. Ajmer Khan and another 2010 SCMR 105; Shaikh Merran's case AIR 1915 Mad. 128 and Muhammad Nawaz's case 2000 SCMR 1904; Zulfiqar Ali v. Peer Ahmed Hussain and 5 others 2009 PCr.LJ 1256 and Abdul Rashid v. Islam-ud-Din and another 1987 PCr.LJ 534 ref.

Syed Jaffar Ali Shah for Applicant.

Zulfqar Ali Sangi for Respondents Nos. 1 and 2.

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

2011 P Cr. L J 1370

[Karachi]

Before Sajjad Ali Shah and Muhammad Ali Mazhar, JJ

NOORUDDIN---Applicant

Versus

NAZEER AHMED and 4 others---Respondents

Criminal Miscellaneous Application No. D-471 and M.A. No. 3524 of 2010, decided on 5th May, 2011.

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

----Ss. 6 & 7---"Terrorism"---Meaning and applicability---Word 'Terrorism', inter cilia would mean the use or threat of action, where use or threat was designed to coerce and intimidate or overawe the government or the public; or a section of public or community; or sect or create a sense of fear or insecurity in society; and would create a serious risk to safety of the public or a section of public; or was designed to frighten the general public and thereby prevent them from coming out and carrying on their lawful trade and daily business; and disrupt civil life---Section 6 of Anti-Terrorism Act, 1997 has its own independent applicability and interpretation and all acts of `terrorism' in relation thereto were to be seen on the touchstone of S.6 which has provided and defined in detail the meaning of 'terrorism'---Legislature has neither provided any immunity nor relaxation that in case of previous enmity the case would not be tried by the Anti-Terrorism Court, but again the criteria to judge was the gravity of offence; and its modus operandi, whether it created a sense of fear or insecurity in the society; and created a serious risk to safety of the public or a section of the public; or was designed to frighten the general public; and thereby prevent them from coming out and carrying on their lawful trade and daily business; and disrupt civil life---Striking off terror was sine qua non for the application of provisions of S.6 of Anti-Terrorism Act, 1997 which could not be determined without examining the nature, gravity and heinousness. of the alleged offence, contents of F.I.R., its cumulative effect on the society or a group of persons--- "Terrorism " would mean the use or threat of "action" where the action would fall within the meaning of subsection (2) of S.6 of Anti-Terrorism Act, 1997; and would create a serious risk to the safety of the public; or a section of the public; or was designed to frighten the general public---Such action would amount to 'terrorism' as enumerated in S.6 of Anti-Terrorism Act, 1997.

PLD 2005 SC 530 ref.

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

----Ss. 6 & 7---Penal Code (XLV of 1860), Ss. 302, 147, 148 & 149---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Criminal Procedure Code (V of 1898), S.561-A---Qatl-e-amd, terrorism and possessing unlicenced arms---Quashing of order, application for---Police, after conducting investigation submitted challan in Anti-Terrorism Court for trial, but Judge vide impugned order returned the police papers to Investigating Officer for submitting challan before the court having jurisdiction as according to opinion of Judge, Ss. 6 & 7 of Anti-Terrorism Act, 1997 did not attract in the case---Validity---While deciding, whether challan was to be entertained or not, Trial Court had failed to consider the true perspective of S.6 of Ant-Terrorism Act, 1997 and in a slipshod manner returned the challan on the effortless notion that it was a case of previous enmity, which was not the sole criterion to decide---Had the court while passing the impugned order considered the gravity and seriousness of the violent act and atrocity, it might have expressed the different view---In order to find out the severity of charge, whether S.6 of Anti-Terrorism Act, 1997 would apply or not, it was expedient to look into the allegations levelled in the F.I.R. by the complainant---Depiction of incident had clearly deduced and figured out that three persons had been murdered brutally in the daylight at the shop situated in the market---Shop was bolted from inside, even then accused persons had climbed on the roof of the shop and broken the roof and viciously murdered three persons---All accused persons were alleged to have made heavy aerial firing to create harassment and terrorism---Three persons had been brutally murdered in the daylight in the shop situated in the market, had an overall impact of creating a sense of fear or insecurity in the society; and risk to safety of the public and frightened the general public, thereby preventing them from coming out and carrying on their lawful trade and daily business and disrupted civil life---Applicant had attached the photos of broken roof of the shop and the bodies of victims lying at the hospital which portrayed dreadful and terrible state of affairs; and the niceties of incident committed in a manner which unquestionably and undoubtedly amounted to terrorism as enumerated in S.6 of Anti-Terrorism Act, 1997---Impugned order was set aside with the direction to Investigating Officer' to submit the challan in the Anti-Terrorism Court concerned.

Mst. Najmunisa v. Judge Special Court 2003 SCMR 1323; Mirza Shaukat Baig v. Shahid Jamil PLD 2005 SC 530; Bashir Ahmed v. Muhammad Siddiq PLD 2009 SC 11; Mohabat Ali v. The State 2007 SCMR 142 and Muhammad Yakoob v. The State 2009 SCMR 527 ref.

Aftab Ahmed Warraich for the Applicant.

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

Salahuddin Panhwar for Respondents Nos. 1 and 4.

Date of hearing: 22nd March, 2011.

2011 P Cr. L J 1391

[Karachi]

Before Salman Hamid, J

Mst. NASEEM---Applicant

Versus

ASSISTANT DIRECTOR DARUL AMAN, LARKANA and 2 others---Respondents

Criminal Miscellaneous Application No. S-166 of 2010, decided on 3rd August, 2010.

(a) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 6---Polygamy---Nature and scope---Provisions of S. 6 of the Muslim Family Laws Ordinance, 1961, are reformative and corrective in nature and for measures for prevention of injustice to the existing wife or wives---Arbitration Council is not empowered to make an unlawful thing declared as lawful by Islam---Nevertheless, polygamy in Islam is no more or no less than that of a permissible act and has never been considered a command and therefore, like any other matter made lawful in principle, may become forbidden if it involves unlawful things or leads to unlawful consequences such as injustice.

Allah Rakha and others v. Federation of Pakistan and others PLD 2000 FSC 1 ref.

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

---S. 561-A---Muslim Family Laws Ordinance (VIII of 1961), S.6---Constitution of Pakistan, Arts. 31 & 35---Petitioner had sought her release from Darul Aman and permission to get married and reside with the respondent, who already had two wives---Function of Arbitration Council under S. 6 of the Muslim Family Laws Ordinance, 1961, was reformative and corrective in nature---Petitioner could not be left at the mercy of Darul Aman indefinitely, and she was not at all agreeable to go back to her parents---First wife of the respondent had filed her affidavit regarding having no objection about the marriage of the respondent with the petitioner---Marriage of the petitioner with the respondent after completion of her Iddat period of Khula granted to her by Family Court, could in a way minimize the injustice in her life and assure that she would not be dragged into leading an immoral life, and her getting married to an already married person would not be seen as violation of any morality---Article 31 of the Constitution had provided that Muslims were enabled to live their lives in accordance with the fundamental concepts of Islam and under Article 35 thereof State was required to protect institution of marriage---Since the petitioner had clearly expressed her unwillingness to go back to her parents, they might not be. present at the time of her Nikah with the respondent--High Court, therefore, in the light of the Injunctions of the Holy Quran directed the Superintendent Darul Aman to fix the "Mehr" of the applicant as Rs.1,25,000 unless she demanded more than that---Petition was disposed of accordingly.

Allah Rakha and others v. Federation of Pakistan and others PLD 2000 FSC 1; Surah An-Nisa (4), Verse 4 and Surah An-Nisa (4), Verse 127 ref.

Ali Nawaz Ghanghro for Applicant.

Ali Raza Pathan, State Counsel.

Ghulam Sagheer Baloch for Parents of Applicant.

Date of hearing: 3rd August, 2010.

2011 P Cr. L J 1398

[Karachi]

Before Sajjad Ali Shah and Muhammad Ali Mazhar, JJ

IMAM ALI---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No. D-62 and Confirmation Case No. 2 of 2008, decided on 3rd June, 2011.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Ocular evidence was fully consistent with the medical evidence and the evidence of the prosecution witnesses was not shattered in the cross-examination--Independent corroboration was not an inflexible rule, even uncorroborated testimony could be relied upon with reference to other indisputable facts---While appreciating evidence, credence was always given to the testimony of a witness whose presence on the spot was established, unless it was shown that the witness had falsely deposed---Nothing had been pointed out to discard the testimony of eye-witnesses who had corroborated each other on each material point without any significant contradiction---Testimony of eye-witnesses was consistent and unimpeachable---All pieces of evidence should be so linked that it should give picture of a complete chain, one corner of which should touch neck of deceased and the other corner to neck of accused---Failure of one link would destroy entire chain---Accused had failed to point out any material contradiction or discrepancy which could amount to disproving the guilt of accused---Ocular testimony was consistent and reliable on all material particulars and inspired confidence---Relationship of ocular witnesses with the deceased or accused ipso facto would not reflect adversely against their veracity in absence of any motive to falsely involve accused with the commission of the offence---Mere relationship of a person with the deceased or the very fact that he was interested in prosecution of accused on account of the occurrence, would not dub him as an interested witness---In the present case, account of the occurrence had been given by the eye-witnesses in natural and convincing manner and their statements found corroboration from other evidence---Murder, in the case was committed in broad-daylight and the ocular evidence was fully corroborated by medical evidence---Report of Chemical Examiner in respect of blood-stained earth and hatchet was also positive---Everything was so matching to make obvious that the probability of the eye-witnesses' presence at the place of incident could not be ruled out or discarded---If a case was proved against the culprit beyond reasonable shadow of doubt and offence under S.302, P.P.C. was established, the normal penalty of death should be awarded; and no leniency in any case be shown, except where strong mitigating circumstance for lesser sentence could be gathered from the evidence available on record---Prosecution having proved the case beyond any reasonable doubt, it could be safely concluded that the conclusion arrived at by the Trial Court was unexceptionable and hardly required any interference---Death sentence awarded to accused under S.302(b), P.P.C. was maintained and confirmed.?

Arif Hussain v. State 1983 SCMR 428; Shahid Abbas v. Shahbaz and others 2009 SCMR 237.; Liaquat Ali v. State 2008 SCMR 95; Khalid Javed v. State 2003 SCMR 1419; Jamil Ahmed v. State 2007 YLR 22: Manzoor Hussain v. State 1999 YLR 496 and Motu and another v. State 2002 PCr.LJ 690 distinguished.

Muhammad Iqbal v. Abid Hussain 1994 SCMR 1928 and PLD 2008 SC 503 ref.

2010 SCMR 650 and 2009 SCMR 825 rel.

S. Madad Ali Shah for Appellant.

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

Nemo for the Complainant.

Date of hearing: 21st April, 2011.

2011 P Cr. L J 1417

[Karachi]

Before Syed Zakir Hussain, J

SANAULLAH KHALTI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. S-4 of 2008, decided on 22nd November, 2010.

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

----S. 13(d)---Possession of unlicenced arms---Appreciation of evidence---Crime weapon in question was not recovered by the Police from personal possession of accused---Offence under S.13(d) of West Pakistan Arms Ordinance, 1965, had not been made out against the accused in its strict terms---Case against accused being doubtful, impugned judgment, was set aside, in circumstances.

Mataro v. The State 1984 PCr.LJ 1724; Deedar Ali Gopang v. The State 2001 YLR 462 and Gul Muhammad v. The State 2005 PCr.LJ 1675 ref.

Saeed Ahmed Bijarani for Appellant.

Naimatullah Bhurgri, the State Counsel.

Date of hearing: 22nd November, 2010.

2011 P Cr. L J 1424

[Karachi]

Before Sajjad Ali Shah and Muhammad Ali Mazhar, JJ

MUHAMMAD SHAFI alias PAPAN---Appellant

Versus

THE STATE---Respondent

Cr. Spl. ATA Jail Appeal No. D-127 of 2005, decided on 31st May, 2011.

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

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Abduction for extorting property, valuable security etc. and terrorism---Appreciation of evidence---Recovery of alleged abductee, itself appeared to be doubtful in view of glaring contradictions and discrepancies available in the evidence of two prosecution witnesses---Prosecution, in circumstances, had not proved the case against accused---Main charge was against father of alleged abductee who was a natural guardian, but he was acquitted by the Trial Court, on whose alleged pointation alleged abductee was recovered---Trial Court had found that no direct evidence was available on record to connect the father and his co-accused with the commission of offence---Accused was convicted due to circumstantial evidence on the sole ground that alleged abductee was recovered from his otaq, which was totally doubtful in view of evidence of two prosecution witnesses---Mother of alleged abductee never appeared in the court despite bailable warrants, for recording evidence who received telephonic calls from the kidnappers for the demand of ransom---Father could not be held liable for kidnapping his own son being a natural guardian---Prosecution having failed to prove its case against accused beyond reasonable doubt; impugned judgment was set aside and accused was acquitted of the charge and was released, in circumstances.

Muhammad Ashgar v. State 2010 SCMR 1706; Sabir Ali v. State 2011 SCMR 629; The State v. Mushtaq Ahmad PLD 1973 SC 418 and Khalid Mehmood v. State 2011 SCMR 664 ref.

(b) Islamic law---

----Guardianship---Responsibility of parents to bring-up children and their welfare---Children were focus of gravity in Islamic family tradition and law---When spouses were together, upbringing their children was paramount joint responsibility---Not only physical care and health, but emotional, educational and religious welfare and well being, were mutual responsibility---When spouses would separate by divorce or annulment, said responsibilities, get split according to best abilities of each parent---While fathers were vested with financial burden and legal guardianship roles, mothers were given role of physical care and emotive guardian of children---Inherently, Islamic system balances between multitude levels of children's need---Father should have access to his children and would remain financially responsible for their maintenance and education, even though they could be under the care of their divorced mother or one of her relations.

Muhammad Ashraf v. S.H.O. and others 2001 PCr.LJ 31; Mst. Mehnaz v. Judicial Magistrate Ist Class/Civil Judge, Attock and 2 others 2008 YLR 1669; Amjad Shah v. Station House Officer Police Station Sukheki and another 2008 YLR 1507 and Muhammad Mukhtar v. S.H.O. and 3 others 2008 YLR 2665 ref.

Aslam Pervez for Appellant.

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

Date of hearing: 19th May, 2011.

2011 P Cr. L J 1437

[Karachi]

Before Tufail H. Ebrahim, J

ZULFIQAR ASHRAF---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No. 219 of .010, decided on 15th April, 2011.

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

----S. 561-A---Inherent powers of High Court---Correct import of the provisions of S.561-A, Cr.P.C. summarized.

The correct import of the provisions of section 561-A, Cr.P.C. may be summarized as under:

(i) The said provisions should never be understood to provide an additional or an alternate remedy nor could the same be used to override the express provisions of law;

(ii) the said powers can ordinarily be exercised only where no provision exists in the Code to cater for a situation or where the Code offers no remedy for the redress of the grievance;

(iii) inherent powers can be invoked to make a departure from the normal course prescribed by law only in exceptional cases of extraordinary nature and reasons must be offered to justify such deviation; and

(iv) in the matter of quashing criminal proceedings, the trial must ordinarily be permitted to take its regular course envisaged by law and the provisions of section 561-A, Cr.P.C. should be invoked only in exceptional cases for reasons to be recorded.

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

----Ss. 561-A & 237---Penal Code (XLV of 1860), Ss.489-F & 405---Dishonestly issuing a cheque and criminal breach of trust---Quashing of proceedings---Application filed under S.249-A, Cr.P.C. by the applicant for his acquittal had been dismissed by Trial Court---Cheque in question was neither issued by the applicant, nor the same was in the name of the complainant---Father of the applicant had issued the cheque---Bank Manager or any other prosecution witness who was yet to be examined would at the best only confirm that the cheque had been issued by the father of the applicant---It was a foregone conclusion that on the basis of cheque issued by the father of applicant, applicant could not be convicted within the meaning of S.489-F, P.P. C. and that it would be a fit case of quashment of proceedings; however, there was a catch in the case---Offence in the F.I.R. was stated to be under S.489-F, P.P.C., but the plain reading of the F.I.R. showed that there was an allegation against the accused applicant of criminal breach of trust and it had been alleged that the complainant had handed over some shares of public limited companies in trust to the accused, which he had dishonestly misappropriated and Trial Court after examining the material and evidence could charge the accused for an offence under S.405, P.P.C. within the ambit of S.237, Cr.P.C.---Petition for quashment was dismissed in circumstances.

Bashir Ahmad v. Zafar-ul-Islam and others PLD 2004 SC 298 and Maqbool Rehman's case 2002 SCMR 1076 ref.

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

----S. 561-A---Inherent jurisdiction of High Court---Nature and scope discussed.

Maqbool Rehman's case 2002 SCMR 1076 ref.

Muhammad Sharif for Applicant.

Khaleeq Ahmed Khan for the Complainant.

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

2011 P Cr. L J 1454

[Karachi]

Before Faisal Arab and Tufail H. Ebrahim, JJ

HAZOOR BUX and 5 others---Petitioners

Versus

S.I.O. POLICE STATION KHANPUR MAHAR and 3 others---Respondents

Constitutional Petition No. D-2315 of 2010, decided on 3rd March, 2011.

Penal Code (XLV of 1860)---

----Ss. 118, 143 & 120-B---Constitution of Pakistan, Art.199---Constitutional petition---Concealing design to commit offence punishable with death or imprisonment for life and criminal conspiracy-Quashing of F.I.R.---During pendency of petition, challan of case had been submitted---When the challan had been submitted and cognizance had been taken by the Trial Court, then alternate remedy under S.249-A, Cr.P.C., was more efficacious, appropriate and beneficial---Question of guilt or innocence could not be decided in the exercise of constitutional jurisdiction by High Court---Such function, in circumstances would fall within the jurisdictional domain of the court concerned before which the entire evidence was to be scrutinized and that could not be done under Constitutional jurisdiction by the High Court---Constitutional petition was dismissed.

2000 SCMR 122; Muhammad Abbasi v. SHO Bara Kahu and 7 others PLD 2010 SC 969 and Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192 ref.

Qurban Ali Malano for Petitioners.

Zulfiqar Ali Sangi, State counsel.

2011 P Cr. L J 1470

[Karachi]

Before Nisar Muhammad Shaikh, J

ABDUL SATTAR and 5 others---Applicants

Versus

THE STATE through Shamsuddin Junejo, Inspector FIA, Crime Circle, Hyderabad---Respondent

Criminal Miscellaneous Application No. S-26 of 2011, decided on 4th March, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 249-A & 561-A---Rejection' of application filed under S.249-A, Cr.P.C. for acquittal of accused---Applicants had alleged that Trial Court had rejected their said application without considering a single ground out of total 24 grounds taken by him in his application and that challan of the case was submitted before the Trial Court in the year 2001 and since then applicants were attending the court from far-off places, but not a single witness had been examined by the prosecution---Counsel for applicants had submitted that applicants would be satisfied, if the Trial Court was directed either to record the evidence of prosecution witnesses within a short period or to decide the application under S.249-A, Cr.P.C. on merits---Trial Court was directed by High Court to record and conclude the prosecution evidence within a period of six months from receipt of the order; and in case such evidence was not concluded within the stipulated period applicants would be at liberty to repeat the application under S.249-A, Cr.P.C., which would be decided by the Trial Court in accordance with law.

Syed Kamran Ali for Applicants.

Zulfiqar Ali Rajput, Standing Counsel waived the notice for the State.

2011 P Cr. L J 1479

[Karachi]

Before Salman Hamid, J

NADEEM alias ATHAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-705 of 2010, heard on 14th January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 302/34---Qatl-e-amd---Bail, refusal of---Prima facie, all the four culprits including the present accused had come with common intention to kill the deceased, which indeed they did---Accused having not attributed any enmity against the police, the latter could not have foisted the unlicensed pistol on him---Presence of accused at the place and time of incident could not be ruled out---Three out of the four accused including the applicant had caught hold the deceased and the fourth accused had given daggar blows to him---Accused, thus, had aided and facilitated the murder of the deceased---Case of accused on the ground of alibi could not be considered at bail stage---Even otherwise, ground of alibi had been taken by accused casually without substantiating the same---Certificate produced by the accused for being present on his duty at the time of occurrence, if taken as true, even then he had ample time to accompany the co-accused for the murder of the deceased---Bail was declined to accused in circumstances.

Shahid v. The State 1994 SCMR 393 distinguished.

Haji Punhal v. The State PLD 2002 Kar. 99; Malik Sikandar Avian and 2 others v. The State 1999 PCr.LJ 568 and Jan Muhammad v. Abdul Latif and 3 others 2003 MLD 72 ref.

Athar Abbas Solangi for Applicant.

Musab Baleegh Dhamraho State Counsel.

Date of hearing: 14th January, 2011.

2011 P Cr. L J 1488

[Karachi]

Before Mushir Alam, C.J., and Syed Hasan Azhar Rizvi, J

MUHAMMAD MOINUDDIN---Petitioner

Versus

PRESIDING OFFICER,' SPECIAL COURT (OFFENCES IN BANKS), SINDH AT KARACHI and 3 others---Respondents

Constitutional Petition No. D-2511 of 2009, decided on 10th May, 2011.

Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)---

----Ss. 3 & 4---Constitution of Pakistan,; Art.199---Constitutional petition---Manipulation in the Bank documents of Pay Order issued by the Bank---Jurisdiction of Special Court---Prima facie, transaction between the parties was made through Pay Order, which was issued by the Bank, which was apparently manipulated by the petitioner---Petitioner, though did not commit any offence with the Bank, but the tampering was made in the Official Bank documents, which had shown that the transaction was made by the petitioner through the bank---Offence with which the petitioner had been charged fell within the definition of scheduled offence---Sections incorporated in the alleged F.I.R. lodged by the complainant fell within the scheduled offence---Impugned order passed by Special Court (Offences in Banks) could not be interfered with.

Abdul Razzak for Petitioner.

Nazar Akbar, D.A.-G. for Respondent.

Date of hearing: 24th March, 2011.

2011 P Cr. L J 1501

[Karachi]

Before Sajjad Ali Shah and Muhammad Ali Mazhar, JJ

SHAZIA AKBAR---Petitioner

Versus

GOVERNMENT OF SINDH, through Secretary Home Department Sindh Secretariat, Karachi and 5 others---Respondents

C.P. No. D-1670 of 2010, decided on 4th May, 2011.

Penal Code (XLV of 1860)---

----S. 365-B---Constitution of Pakistan, Art.199---Kidnapping, abducting or inducing woman to compel for marriage etc.---Constitutional petition---Quashing of F.I.R.---Petitioner/alleged abductee had stated that she being sui juris, by exercising her right of free-will, had contracted marriage with co-accused and further stated that neither she had been abducted nor kidnapped by any one nominated in the F.I.R. and that she was living with co-accused as his legally wedded wife---Alleged abductee had also stated that the F.I.R. had been falsely lodged by her brother with regard to her abduction, which could be quashed---Petitioner in her statement recorded by the Investigating Officer on direction of the court, had repeated same fact that she had not been abducted by any one nor she was staying with co-accused against her wishes---Both the Investigating Officer and Additional Advocate-General, had no objection, if the F.I.R. was quashed---When the petitioner who was the star witness of the crime had denied her abduction, F.I.R. was quashed, in circumstances as continuance of prosecution of said crime would be an abuse of process of the court.

Syed Kamran Ali for Petitioner.

Allah Bachayo Soomro, Additional A.-G. along with I.O./ASI Altaf Hussain of I.T., Police Station City Hyderabad and Inspector Rafique Ahmed on behalf of DPO Hyderabad for Respondents.

2011 PCr.LJ 1513

[Karachi]

Before Aqeel Ahmed Abbasi, J

JAMAL UDDIN AHMED---Applicant

Versus

MUHAMMAD MAQBOOL and 2 others---Respondents

Criminal Revision Application No. 127 of 2010, decided on 28th April, 2011.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Superdari of vehicle allegedly used for commission of offence---Court during any inquiry or trial, could make such order as it would think fit for the proper custody of property pending the conclusion of the inquiry or trial, when such property appeared to have been used for commission of any offence, or produced before any criminal court---Court, in normal course, was to restore possession to the party from whose possession vehicle was recovered---Stolen property, however, could not be given an superdari to a purchaser from thief---Last owner was also entitled to superdari of the vehicle taken in possession by Police, particularly in the absence of any other lawful claimant of such vehicle---Person producing original certificate of registration and other relevant documents of the vehicle, prima facie revealing him to be its owner, was entitled for the custody of the vehicle during pendency of the case---Petitioner was in possession of all the, original documents including the registration book, which reflected that subject vehicle was purchased from leasing company; and after making all the instalments, same was duly transferred in the name of the petitioner---Such vehicle was snatched from the driver of the petitioner for which F.I.R. was registered; and during investigation same was recovered from respondent who claimed to have purchased the same from third party---On inquiry and investigation, it had come on record that the subject vehicle had been subjected to tampering of chassis number---Said claimant/respondent who initially objected the superdari of .vehicle in favour of petitioner, despite repeated notices, did not appear in the court to substantiate his claim or entitlement over the subject vehicle---Petitioner who was in possession of original documents of ownership, including the Registration Book of vehicle in question, was entitled for the custody of said vehicle, particularly when no other claimant had come forward before the court for such purpose---No justification for the Police to keep custody of vehicle in question as there was no likelihood that the same would be misused, damaged and deteriorated---Impugned order was set aside and vehicle was directed to be handed over on superdari to the petitioner, in circumstances.

Muhammad Ramzan v. Additional Sessions Judge and others 2008 YLR 918 and Sajjad Ali v. The State 2008 YLR 571 ref.

Khawaja Navid Ahmed for Applicant.

Muntazir Mehdi, A.P.-G. along with S.-I. Muhammad Naeem, ACLC for Respondents.

Date of hearing: 28th April, 2011.

2011 P Cr. L J 1520

[Karachi]

Before Muhammad Ismail Bhutto, J

GULAB---Applicant

Versus

THE STATE---Respondent

Cr. B.A. No. 613 of 2009, decided on 20th July, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.460/34---Lurking house-trespass or house-breaking by night---Bail, grant of---F.I.R. revealed that four persons entered in the house of the complainant and two of them had fired---Section 460, P.P.C. provided that all accused were conjointly responsible for the offence, but no name and description were given in the F.I.R.---No source had been mentioned by the complainant party in the further statement, and 161, Cr.P.C. statements of the prosecution witnesses, regarding involvement of accused in the crime---Accused was behind the bars for about four years without any trial---Earlier trial was the right of accused and no one could be put behind the bars for indefinite period as punishment---Accused was admitted to bail, in circumstances.

Arbab Ali Chandio for Applicant.

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

2011 P Cr. L J 1548

[Karachi]

Before Munib Ahmed Khan, J

SIKANDAR---Applicant

Versus

THE STATE---Respondent

Cr. B.A. No. 808 of 2008, decided on 19th January, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Bail application---Counsel for the applicant/accused had taken specific ground of enmity between the complainant, Police Official as well as accused persons and argued that the case suffered from legal infirmity as ASI had conducted the case which was contrary to law---Grounds taken by the counsel for applicant were important towards decision of the bail, but Trial Court had totally ignored the same and had not discussed either of the said ground---Order passed by the Trial Court was set aside, in circumstances with the direction that it should decide the pending bail application de novo, within two months taking into consideration the said grounds as well as authorities.

Abdali Shah v. State PLD 2008 Kar. 57 and Jan Muhammad v. State 2008 YLR 2080 ref.

Arbab Ali Chandio for Applicant.

Muhammad Iqbal Mahar, Assistant Advocate-General for the State.

2011 P Cr. L J 1551

[Karachi]

Before Tufail H. Ebrahim, J

ALI ZAMAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 393 of 2011, decided on 5th May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 6/9(c)/14/15---Possession of narcotics---Bail, refusal of---"Charas" weighing 3.850 kgs had allegedly been recovered from the possession of accused on the spot---Persons passing by despite approach had refused to become witnesses in the case---Section 103, Cr.P.C. was not applicable to the cases registered under Control of Narcotic Substances Act; 1997---Report of Chemical Examiner was positive---F.I.R. had been promptly lodged implicating the accused with a specific role---Co-­accused had been released on bail being a woman and her case being a border line case---No undue delay had been shown on the part of prosecution---Sufficient material was, prima facie, available on record to connect the accused with the commission of the offence---Such crimes were on the rampant, which should be dealt with strictly in accordance with law and looking into all the prevailing circumstances of the case---No case of further inquiry was made out---Bail application was dismissed in circumstances.

2005 MLD 802; 2008 PCr.LJ 1326; 2007 YLR 1311; 2009 YLR 1777; 2006 MLD 630 and 2008 PCr.LJ 1333 distinguished.

Naveed Ali for Applicant.

Hussain Bux Baloch, Spl. Prosecutor ANF for the State.

Date of hearing: 27th April, 2011.

2011 P Cr. L J 1563

[Karachi]

Before Syed Hasan Azhar Rizvi, J

DOST MUHAMMAD---Applicant

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Application No. S-309 of 2010, decided on 14th December, 2010.

Criminal Procedure Code (V of 1898)-00

----Ss. 22-A, 22-B & 561-A--- Registration of criminal case---Application for---Dismissal of application---Evidence on record had established that there had been encroachment upon the government land and the Police party went to the site for removal of the encroachment after due process of law, but the encroachers and the inhabitants of the area, including the applicant and his relatives in order to pressurize the Police, attacked upon the Police party, caused grievous injuries to Police Officials while performing their official duty, snatched official weapons from Police party and damaged the official vehicles of the Police party---Applicant had filed application before Justice of Peace and after dismissal of the same he filed application before High Court for quashing that order of Justice of Peace---Justice of Peace had passed a well speaking order and had dismissed the application of applicant by the impugned order; he had rightly observed that applicant had not come before the court with clean hands---No infirmity, illegality or irregularity was found in the impugned order passed by Justice of Peace---Said order was maintained and application filed by the applicant was dismissed, in circumstances.

Bhoran Khatoon v. The State 1999 PCr.LJ 1532; Muhammad Arshad Jameel v. S.H.O. Police Station Muzaffargarh, Multan and others 2010 YLR 911 and Imtiaz Ahmed Cheema S.H.O. v. S.H.O. Police Station Dharki and 2 others 2010 YLR 189 ref.

Qurban Ali Malano for Applicant.

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

2011 P Cr. L J 1574

[Karachi]

Before Muhammad Tasnim, J

ABDUL WAHEED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 1320 and M.A. No. 6315 of 2010, decided on 10th May, 2011.

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

----S. 497--- Bail--- Assessment of evidence-- Principle--- Deeper appreciation of evidence cannot be made at bail stage and only tentative assessment thereof is to be made just to find out connection of accused with the commission of the offence, if any.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324/364/302/34---Attempt to commit qatl-e-amd, abduction for murder, qatl-e-amd---Bail, grant of---Version in the F.I.R. and the statement of complainant in the court were at variance, which had cast doubt on the prosecution case calling for farther inquiry in terms of S.497(2), Cr. P. C.---Trial Court had not concluded the trial of the case within four months as directed by High Court in the previous bail application of accused, and till date only the complainant had been examined---Delay in trial was not attributable to accused---Case was of serious hardship in which trial was lingering on for the last eight years---Accused was admitted to bail in circumstances.

Ashok v. The State 1997 SCMR 436; Muhammad Aslam v. The State 1999 SCMR 2147 and Liaquat Ali v. The State 2005 PCr.LJ 1741 ref.

Shaikh Jawaid Mir and Zulfiqar Haider for Applicant.

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

Date of hearing: 10th May, 2011.

2011 P Cr. L J 1580

[Karachi]

Before Shahid Anwar Bajwa, J

MUHAMMAD HASHIM KHOSO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Applications Nos. 13 and 120 of 2011, decided on 25th May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.302, 324 & 114/34---Qatl-e­-amd and attempt to commit qatl-e-amd---Pre-arrest bail, grant of---Further inquiry---Only role alleged against accused in the F.I.R. was that he firstly gave proverbial Hakkal and thereafter co-accused fired on the deceased, and the injured had been fired upon who received injuries on his leg---F.I.R. did not mention that any injuries to the deceased were caused by the accused---F.I.R. stated that "they" made straight fires towards the injured---Said "they" consisted of four persons and injury received by injured was only one and it was not. stated as to which one caused injury to the injured---Such was, at best a case of further inquiry---One of co-accused was not named in the F.I.R.---Injury received by the injured was in his thigh and no material was on record to suggest that while being taken to the hospital the injured was not in a position to talk---F.I.R. was registered after the injured person and dead body had been taken to the hospital which had created doubt and benefit of doubt, even at the bail stage, must be given to the accused.

Rais Wazir Ahmed v. The State 2004 SCMR 1167; Sultan Ahmed Siddiqui and 3 others v. The State PLD 2010 Kar. 110; Waris Muhammad v. Haji Ahmed Yar and another 1976 SCMR 182; Muhammad Rafiq v. The State 1975 SCMR 483; Noor Muhammad v. The State 2008 SCMR 1556; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Malik Sikander Awan and 2 others v. The State 1999 PCr.LJ 568; Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427; Sh. Zahoor Ahmed v. The State PLD 1974 Lah. 256; The State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322; Rafiq Ahmed Jilani v. The State 1995 PCr.LJ 785; Agha Muhammad Jamil v. The State 1997 PCr.LJ 901 and Shamrez Khan v. The State 1999 PCr.LJ 74 ref.

Syed Mehmood Alam Rizvi for applicant along with Applicant.

M. Ismail Memon for the Complainant.

Muntazir Mehdi, Assistant Prosecutor-General Sindh for the State.

2011 P Cr. L J 1590

[Karachi]

Before Salman Hamid, J

BHAMBHO KHAN---Applicant

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Application No. 256 of 2010, decided on 17th January, 2011.

Penal Code (XLV of 1860)---

----Ss. 337-A(i)(ii) & 337-F(i)---Criminal Procedure Code (V of 1898), Ss.561-A, 154, 157, 158, 173 & 190---Causing injuries---Disposing of case under 'C' class---Quashing of order, application for---Magistrate was fully empowered to agree or otherwise with the Investigating Officer's report seeking cancellation of F.I.R.---Once the investigation report was received by the Magistrate, he was seized of the matter and was competent to assume jurisdiction; and pass proper order, as it was within his domain to exercise exclusive authority as a judicial Magistrate---Magistrate under S.190, Cr.P.C. could take cognizance of any offence upon a complaint or upon a police report or upon information received by him---Magistrate was not bound by report submitted by police under S.173, Cr.P.C.---Under S.190(b), Cr.P.C. the Magistrate was empowered to take cognizance of a case in spite of police report---Magistrate was required by law to apply independent mind to the material placed before him and form his opinion about the matter.

Mukhtiar Ahmed Khoso for Applicant.

Naimatullah Bhurgri, State Counsel.

2011 P Cr. L J 1613

[Karachi]

Before Imam Bux Baloch, J

Syed AKBAR SHAH---Appellant

Versus

MOOSO and 8 others---Respondents

Criminal Acquittal Appeal No. S-29 and M.A. No.'`3 04 of 2010, decided on 9th May, 2011.

Illegal Dispossession Act (XI of 2005)---

----S. 3---Criminal Procedure Code (V of 1898), S.417(2-A)---Illegal occupation of land---Appeal against acquittal---Appreciation of evidence---Counsel for appellant/complainant had contended that respondents/accused persons had illegally occupied the agricultural lands of the appellant; and that Trial Court without assigning any plausible explanation had acquitted accused persons---Complainant had admitted that he had sold out portion of lands to accused persons through registered sale-deed and through agreement---After such admission of complainant, there was no room left for consideration that accused were in illegal possession of the agricultural lands as alleged by the complainant; there could be some dispute after purchase of lands from the complainant, but the record was silent about demarcation of lands handed over by the complainant to accused persons---Complainant, in circumstances, had failed to prove illegal dispossession by accused persons---Accused who had been acquitted from the charges by the Trial Court, had gained double presumption of innocence; and for reversal of such findings, the complainant was liable to show that same was not reasonable or was wrong---Courts while examining the case of accused must be very careful and cautious in interfering with the acquittal order; and should not set aside the same merely for the reason that some other view was also possible---Trial Court had rightly considered the case of accused persons and had acquitted them in accordance with law--Complainant having failed to establish his case, appeal was dismissed.

Jalal and 11 others v. Kapri Khan and another PLD 2008 Kar. 369; Rahim Tahir v. Ahmed Jan and 2 others PLD 2007 SC 423; Nabi Bux and 6 others v. Ghulam Muhammad and others PLD 2008 Kar. 518; Maqsood Ahmed Qureshi v. Muhammad Azam Ali Siddiqui and 8 others PLD 2009 Kar. 65; Iftikhar Ahmad v. Zulfiqar Ali and 3 others PLD 2008 Lah. 59; Mst. Jallan v. Muhammad Riaz and others PLD 2003 SC 644; Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477; Muhammad Shafi v. Muhammad Raza and another 2008 SCMR 329; Mst. Saira Bibi v. Muhammad Asif and others 2009 SCMR 946 and Muhammad Aslam v. Sabir Hussain and others 2009 SCMR 985 ref.

Mst. Saira Bibi v. Muhammad Asif and others 2009 SCMR 946 and Muhammad Aslam v. Sabir Hussain and others 2009 SCMR 985 fol.

Imdad Ali Mashori for Appellant.

Altaf Hussain Surahiyo for Respondents.

Miss Rubina Dhamrah, State Counsel.

2011 PCr.LJ 1629

[Karachi]

Before Faisal Arab, J

SAIF UR REHMAN---Applicant

Versus

XTH CIVIL JUDGE/J.M., HYDERABAD and 3 others---Respondents

Criminal Miscellaneous Application No. S-285 and M.A. No. 2606 of 2011, decided on 22nd June, 2011.

Penal Code (XLV of 1860)---

----S. 302---Criminal Procedure Code (V of 1898), S.561-A---Qatl-e­-amd---Direction for registration of F.I.R.---Quashing of such order, application for---Applicant was complainant in an F.I.R., wherein he stated that three accused persons duly armed, had committed robbery; and in self-defence he fired at them which resulted in the death of two accused persons, while one made his escape good---On the Police report said applicant had fired at the culprits in self-defence, Judicial Magistrate passed an order directing registration of F.I.R. against applicant as Magistrate was of the opinion that applicant had exceeded the limit of self-defence by firing straight at accused persons, while he ought to have made aerial firing to disburse said accused persons---Applicant had filed application against said order of the Magistrate---Validity---Held, it could be a case of self-defence, but the killing of two persons had to be recorded by the Police when it came to its knowledge; and no near-one or dear-one of the deceased persons came forward to lodge F.I.R.---After registration of the F.I.R., if in the investigation, it came on record that the deceased were killed by applicant in self-defence, still it was for the court to decide as to whether while exercising such right of self-defence, accused of the F.I.R. had exceeded his authority---Such findings could only be given when the Trial Court proceeded with the case and there would be a case only when F.I.R. was lodged---Direction given by the Magistrate, in circumstances, could not be interfered with merely for the reason that in the Police investigation of F.I.R. it had come that applicant fired at accused persons by exercising right of self-defence---High Court directed that F.I.R. as to the killing of two persons be registered and after proper investigation matter be placed before the Trial Court--Applicant would be at liberty to move a proper application seeking bail---While maintaining the direction of the Judicial Magistrate to register the F.I.R., observations made in the impugned order that applicant had exceeded his authority while firing at accused in self-defence, were set aside, which fact was to be decided by the court after challan in the proposed F. I. R. with regard to the killing of the two alleged habitual offenders was filed---Order accordingly.

Shabbir Hussain Memon for Applicant.

Muhammad Iqbal Kalhoro, A.P.-G. along with Acting PDSP on behalf of S.P., I.T. Hyderabad, S.I.O. Haji Jawaid Police Station Cantonment, SIP Imtiaz Baloch, S.H.O. Police Station Cantonment and SIO/I.O. Shahid Aijaz CIA Hyderabad.

2011 P Cr. L J 1637

[Karachi]

Before Salman Hamid, J

ABDUL RAOOF---Applicant

Versus

AZIZULLAH and 9 others---Respondents

Criminal Transfer Application No. S-67 of 2010, decided on 12th July. 2010.

Criminal Procedure Code (V of 1898)---

----S. 526---Penal Code (XLV of 1860), Ss.302/114/504/148/149---Qatl­-e-amd, abettor present when offence committed, intentional insult with intent to provoke breach of the peace, rioting armed with deadly weapons---Transfer of case, refusal of---Case was sought to be transferred from the Sessions Court on the grounds that murder threats had been extended by the accused party to the complainant and that accused were not allowing the prosecution witnesses to enter their native village and visit the grave of their deceased brother---Said grounds were general in nature and no details thereof had been given--No allegation or grievance of any sort had been mane against the Trial Court---No ground for transfer of the case, in circumstances, was made out-Petition was dismissed accordingly.

Muhammad Ashique Dhamraho for Applicant.

Abdul Rehman Bhutto for Respondents.

Naimatullah Bhurgri, State Counsel.

2011 P Cr. L J 1657

[Karachi]

Before Syed Zakir Hussain, J

BASHIR AHMED and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No. S-176 of 2010, decided on 5th November, 2010.

Penal Code (XLV of 1860)---

----Ss. 302/324/337-H(2), 148 & 149---Criminal Procedure Code (V of 1898), Ss.561-A & 173---Qatl-e-amd, attempt to commit qatl-e-amd, hurt by rash or negligent act---Quashing of order, application for--Investigating Officer on his own and not at the instance of the complainant, put the names of accused persons in Column No.2---Magistrate on application of the complainant, examined him and his witnesses and on the basis of such evidence of complainant's side, rejected the opinion of the Investigating Officer and disagreed with the placement of accused persons in Column No.2---Magistrate had no power to give right of audience to the complainant in a case of Police report, for coming to a conclusion whether the same should be accepted or dealt with otherwise---Impugned order passed by Magistrate, being not sustainable, was set aside, with the result, the Police report was accepted and same was forwarded to the Court of Session for further proceedings.

Sarfraz Khan Jatoi for Applicants.

Naimatullah Bhurgri for the State.

Date of hearing: 5th November, 2010.

2011 P Cr. L J 1669

[Karachi]

Before Imam Bux Baloch, J

QADIR BUX---Appellant

Versus

THE STATE----Respondent

Criminal Appeal No. 65 of 2004, decided on 5th April, 2011.

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

----S. 13(d)---Going armed without licence---Appreciation of evidence---Relevant entry under which the complainant Police Officer had left the police station along with his subordinate staff for patrolling in the area on the date of incident, had not been proved on record during trial, which had cut at the roots of the prosecution case---Exaggerations, improvements and contradictions in the evidence of prosecution witnesses had made' the prosecution case highly doubtful, benefit of which had to be given to the accused---Prosecution had failed to prove its case beyond any shadow of reasonable doubt---Accused was acquitted in circumstances.

Tariq Pervez v. The State 1995 SCMR 1345 fol.

Muhammad Iqbal Mahar for Appellant.

Mus'ab Baleegh Dhamrah for the State.

Date of hearing: 5th April, 2011.

2011 PCr. LJ 1682

[Karachi]

Before Muhammad Athar Saeed and Irfan Saadat Khan, JJ

SHAHID ALI-Appellant

Versus

THE STATE-Respondent

Criminal Jail Appeal No. 560 of 2010, decided on 30th May, 2011.

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

----S. 9(e)---Possessing narcotics---Appreciation of evidence---Accused was apprehended red-handed, carrying 1700 grants of charas comprising of 170 rods---Accused had neither denied the possession of the same nor had shown that the case made out against hint by the prosecution was false; and said charge had illegally been foisted upon him---Ample opportunity of hearing was provided to accused by the Trial Court to explain his view point and nothing incriminating in that regard had been proved by accused---Accused vide application, addressed to the Special Court had categorically stated that the admitted his crime, but only had requested the court to give him the lesser punishment as he was having small kids "---After receiving the said application, the Trial Court granted hire some time to think over the matter, but his deposition remained unchanged---Trial Court after taking a very lenient view granted a sentence of 4 years only and a fine Rs.20,000---Trial Court having already taken a lenient view by awarding lighter sentence to accused no case of interference had been made out, in circumstances.

Nick Kajtazi v. The State PLD 1977 Kar. 1049; Jantan Bibi v. The State 2010 PCr.LJ 164; Shamoon Jatoi u. The State 1996 PCr.LJ 783; Muhammad Hashim v. The State PLD 2004 SC 858 and 2010 PCr.LJ 164 ref.

PLD 1977 Kar. 1049 and Muhammad Hashim v. The State PLD 2004 SC 858 distinguished.

Mubarak Ali v. The State PLD 2009 Lah. 632 and Surraya Bibi v. The State 2008 SCMR 825 ref.

Sibtain Mehmood for Appellant.

Ms. Akhter Rehana, A.P.-G. for the State.

Date of hearing: 26th May, 2011.

2011 P Cr. L J 1690

[Karachi]

Before Muhammad Athar Saeed and Irfan Saadat Khan, JJ

RAMZAN ALI HEMANI---Appellant

Versus

THE STATE through Director-General (NAB)---Respondent

Criminal Accountability Appeal No. D-06 of 2010 and Constitutional Petitions Nos. 2427 of 2008 and 570 of 2009, decided on 13th June, 2011.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9, 10, 18 & 32---Qanun-e-Shahadat (10 of 1984), Arts. 72, 78,84 & 129---Corruption and corrupt practices---Appreciation of evidence---Allegations against accused, who at the relevant time, was serving as Branch Manager of Bank, were that he was found involved in parallel banking, falsification of bank accounts, opening of fictitious accounts and misappropriation of funds of public at large---Accused at no stage of proceedings had denied the veracity of the documents produced by the prosecution witnesses against him---Prosecution witness had not only produced deposit slips, but also bank ledgers and other relevant documents to prove manipulation of amounts of public­-at-large by accused---Accused, in cases under National Accountability Ordinance, 1999 was to prove beyond any 'reasonable doubt his innocence, but not a single document had been produced by accused to prove his innocence---Prosecution witness had produced more than 1500 documents to prove active involvement of accused in respect of the charges levelled against him---Investigating Officer had also proved the charges levelled against the accused---All the evidences produced by the prosecution witnesses, had led to the irresistible conclusion that charges levelled against accused were proved beyond any reasonable doubt---Accused having proved to have committed the offence under S.9(iii) of National Accountability Ordinance, 1999 punishable under S.10(a) of said Ordinance, sentence and fine imposed by the Trial Court on accused were maintained.

Fasih-ud-Din Khan and others v. Government of Punjab and others 2010 SCMR 1778; Gulzar Ahmed v. The State 2010 PCr.LJ 1438; Syed Qasim Shah v. The State 2009 SCMR 790; Mansur-ul-Haq v. The Government of Pakistan PLD 2008 SC 166; Khan Asfandyar Wali and others v. Federation of Pakistan PLD 2001 SC 607; Hakim Ali Zardari v. The State 2007 MLD 910; Khizar Hayat v. The State PLD 2011 Kar. 52; Riaz Ahmed v. The State 2010 SCMR 846; Saeedullah Soomor v. The State 2011 YLR 144; China Petroleum Engineering Construction v. Khattak Allied Construction Company 2004 SCMR 1777; PLD 2007 Kar. 43 (sic.); Saleem Raza v. The State PLD 2007 Kar. 139 and The State v. Khalid Aziz 2011 SCMR 136 ref.

Gulzar Ahmed v. The State 2010 PCr.LJ 1438; Riaz Ahmed v. The State 2010 SCMR 846; Syed Qasim Shah v. The State 2009 SCMR 970; Khalid Aziz v. The State 2011 SCMR 136; Khizar Hayat v. The State 2011 SBLR 324; Hakim Ali Zardari v. The State 2007 MLD 910; Khan Asfand Yar Wali v. Federation of Pakistan PLD 2001 SC 607; Mansur-ul-Haq v. Government of Pakistan PLD 2008 SC 166; Saleem Raza v. The State PLD 2007 Kar. 139 and China Petroleum Engineering Construction v. Khattak Allied Construction Company Limited 2004 SCMR 1777 distinguished.

Shafaat Nabi Khan Sherwani for Appellant.

Muhammad Aslam Butt, Deputy Prosecutor-General, NAB for the State.

I.A. Hashmi for the Complainant.

Dates of hearing: 28th March, 2011, 11th, 18th and 25 April, 2011.

2011 P Cr. L J 1714

[Karachi]

Before Muhammad Tasnim, J

MUHAMMAD IQBAL alias CAPTAIN---Applicant

Versus

THE STATE---Respondent

Bail Application No. 480 of 2011, decided on 17th May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---West Pakistan Arms Ordinance (XX of 1965), S.13(d)-Possessing unlicensed arms---Bail, grant of---Case of accused and co-accused, had been sent to two different courts---As the witnesses and recovery memo were the same, both cases ought to have been decided by the same court---Case having been sent to two different courts, divergent view had been taken by the courts, while deciding the bail applications---On the same set of facts and evidence co-accused had been admitted to bail, whereas accused had been denied bail---Following the rule of consistency, accused should have also been admitted to bail---State Counsel did not oppose the grant of bail to accused on such legal aspect of the matter---By consent accused was also admitted to bail, in circumstances.

Nazir Ahmed for Applicant.

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

Date of hearing: 17th May, 2011.

2011 P Cr. L J 1726

[Karachi]

Before Zahid Hamid, J

ASMAT RASOOL QADRI---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No. 256 of 2010, decided on 28th January, 2011.

Penal Code (XLV of 1860)---

----Ss. 408 & 420---Criminal Procedure Code (V of 1898), S.561-A---Criminal breach of trust by clerk or servant, cheating---Application under S. 561-A, Cr.P.C. for quashing of F.I.R.---F.I.R. had been sought to be quashed on the ground that same was unauthorizedly lodged as. the bye-laws, of the society concerned did not permit initiation of prosecution by the complainant who was not given approval by the Managing Committee before causing the said F.I.R. to be registered---Challan had already been submitted and case was pending before Judicial Magistrate---In order to sustain objection of applicant as against the F.I.R. or about its unauthorized registration in violation of the bye-laws, applicant could try before lower court by making appropriate application as he could not be allowed to bypass the provisions of S.249-A, Cr.P.C., by directly resorting to the proceedings under S.561-A, Cr.P.C., which power could be exercised only rarely by High Court in the cases of abuse of the process of the court and to secure the ends of justice---Alternate remedy being available to the applicant, same could be availed by him in accordance with law---Application for quashing the F.I.R. was rejected.

Muhammad Iqbal for Applicant.

Ms. Rozina holding brief on behalf of Khaleeq Ahmed for the Complaint.

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

2011 P Cr. L J 1740

[Karachi]

Before Faisal Arab, J

MUHAMMAD SOOMAR and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 847 of 2010, decided on 30th June, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324 & 34---Qatl-e-amd, attempt to commit qatl-e-amd---Bail, grant of---F.I.R. stated that over a dispute on the construction of the shop by the complainant, accused persons who were residing in the neighbourhood armed with hatchets, hard and blunt and wooden objects started abusing the complainant party where suddenly father of the complainant arrived on the motorcycle; and one of accused persons inflicted blows by the iron rod that he was carrying---Narration of F.I.R. could not establish that there was common intention to commit murder---Since accused's blows had injured one person; and the injuries were of the nature falling under S.337-A(i), P.P.C. punishable for two years only, they were entitled to bail---Involvement of accused under S.34, P.P.C. would be decided only when the entire evidence was recorded before the Trial Court---Accused were granted bail, in circumstances.

1999 SCMR 1360 and PLD 2010 SC 585 ref.

1989 SCMR 239; 1996 SCMR 1023; 2009 MLD 380; 2009 PCr.LJ 1058 and 2001 PCr.LJ 359 distinguished.

Miss Shabana Kausar Jatoi for Applicants.

Hameedullah Dahri for the Complainant.

Shahzado Saleem Nahyoon, Assistant P.-G. for the State.

2011 P Cr. L J 1746

[Karachi]

Before Ghulam Sarwar Korai, J

MUHAMMAD KHAN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos. S-892 of 2010 and S-275 of 2011, decided on 16th June, 2011.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.324---Attempt to commit qatl-e-amd---Pre-arrest bail, grant of---Further inquiry---F.I.R., in the case was lodged with delay of about 9 days without any proper explanation for said delay---Accused persons allegedly fired upon the complainant and according to the Mashirnama, complainant had received one injury, but as per provisional medical certificate, he received 11 injuries---Said medical certificate was suspended by the Medical Superintendent due to non-appearance of the complainant before the Medical Board---Since there was conflict between the contents of the F.I.R., Mashirnama of injuries and medical certificate; and there was delay of 9 days in lodging the F.I.R., case of accused persons was of further inquiry---Interim bail already granted to accused person was confirmed, in circumstances.

Syed Muhammad Wasim Shah for Applicants.

Ghulamullah Chang for Applicant.

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

2011 P Cr. L J 1751

[Karachi]

Before Salman Hamid, J

MUNAWAR ALI and 3 others---Applicants

Versus

ALI MUHAMMAD and 13 others---Respondents

Criminal Revision No. S-40 of 2010, decided on 10th January, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 435 & 439---Revisional jurisdiction---Scope---High Court could call for record and proceedings from the subordinate criminal courts to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by such inferior court---While exercising powers under Ss.435 & 439, Cr.P.C., applicant must make out a case to show that either the order of the subordinate court was incorrect, illegal or lacked propriety and that the finding of such court was not in order.

Ghulam Ali A. Samtio for Applicants.

Aftab Ahmed Gorar for Respondents.

Ali Raza Pathan for the State.

Date of hearing: 10th January, 2011.

2011 P Cr. L J 1801

[Karachi]

Before Muhammad Ali Mazhar, J

GAMOON and others---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeal No. S-200 of 2006, decided on 27th July, 2011.

(a) Pakistan Prisons Rules, 1978---

----R. 140---"Imprisonment for life"---Meaning---Imprisonment for life means twenty five years rigorous imprisonment and every lifer prisoner would undergo a minimum of fifteen years substantive imprisonment---In the present case, the portion of substantive sentence served by the accused being less than fifteen years, in view of R.140 of Pakistan Prisons Rules, 1978, accused could not be released on the sentence already undergone.

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

----S. 302(b)--- Qatl-e-amd--- Appreciation of evidence--- Interested witness---Scope---Evidence of interested witness was not fatal, unless the evidence of such witnesses who were the relatives of the deceased, was not inspiring confidence---If the ocular evidence was found trustworthy and inspiring confidence, same could not be discarded for the reasons that the witnesses were interested or related inter se---Mere relationship of a witness would not mean that the witness was interested and his testimony was not liable to be believed when same was found reliable, trustworthy and confidence inspiring on the material points---Mere fact of relationship would not necessarily render a witness's account of occurrence subject of doubt---Interested witness would mean a witness who had a motive for falsely implicating an accused---Statement of witness must be in consonance with the probabilities fitting in the circumstances of the case and also inspiring confidence in the mind of a reasonable prudent man---If such elements were present, then the statement of worst enemy of an accused could be accepted and relied upon without corroboration, but if said elements were missing then the statement of a pious man could be rejected without second thought---All pieces of evidence should be so linked that it should give picture of complete chain, one corner of which should touch neck of deceased and other corner to neck of accused---Failure of one link would destroy entire chain.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Complainant in his cross-examination had stated that there were 20 houses in the village concerned, but none had come from the village except, two witnesses, one complainant and another---Ocular version was not consistent with medical evidence and Trial Court had ignored that material aspect while passing the impugned judgment---Clothes of the deceased along with hatchet were sent for chemical examination after more than one month of the occurrence---Specific charge regarding the motive and sharp side hatchet injury was framed, but neither the motive was proved nor sharp side hatchet injury was sustained by the deceased as per post mortem report---Testimony of eye-witnesses was not reliable and their presence at the spot was doubtful---Prosecution could not take benefit of the weaknesses of the defence, as it was duly bound to prove its case on the evidence produced before the court beyond a reasonable doubt---When two interpretations of the evidence were possible, one favouring the prosecution and the other favouring the accused, then the interpretation or theory favouring accused was to be accepted---For the purpose of benefit of doubt to accused, more than one infirmity was not required---Single infirmity creating reasonable doubt in the mind of a reasonable and prudent person regarding the truth of charge, would make the whole case doubtful---Accused was the most favourable child of law and every benefit of doubt would go to him regardless of fact whether he had taken any such plea or not---Veracity and credibility of the eye-witnesses being full of doubts, the benefit of that must go to accused persons---Impugned judgment was set aside and accused were acquitted of the charge against them and were set free, in circumstances.

Umar Hayat v. State 1997 SCMR 1076; Amir Bux v. State 1987 PCr.LJ 1364; Abdul Hakeem v. State PLD 1982 Kar. 975; Liaquat Ali v. State 2008 SCMR 95; Muhammad v. State 1991 PCr.LJ 761; Muhammad Yaqoob v. State PLD 2001 SC 378; Anil Phukan v. State of Assam 1993 SCMR 2236; Muhammad Ashraf and 2 others v. The State 1998 SCMR 279 and Ashiq Hussain v. The State 1993 SCMR 417 ref.

2002 SCMR 1586; 1997 SCMR 373; 2006 SCMR 456; 1995 SCMR 1627; 2009 SCMR 237; 2010 SCMR 97; 2009 SCMR 916; 2010 SCMR 1592; 2008 SCMR 1221; 2008 SCMR 1086 and 2007 SCMR 525 rel.

Nisar Ahmed Unar and Miss Nasira Shaikh for Appellants.

Syed Meeral Shah, D.P.-G. for the State.

Dates of hearing: 15th April and 3rd June, 2011.

2011 P Cr. L J 1838

[Karachi]

Before Muhammad Athar Saeed and Irfan Saadat Khan, JJ

YAR MUHAMMAD and 4 others---Appellants

Versus

THE STATE---Respondent

Special Criminal Appeals Nos. 342 and 390 of 2010, decided on 13th June, 2011.

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

----Ss. 6 & 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Benefit of doubt---Documents produced on record had proved that accused who was only the Chowkidar of Godown from where contraband items were recovered, had nothing to do with said items---Nothing incriminating was recovered from the Chowkidar, except a visiting card, a mobile phone and some cash---Special Prosecutor agreed that the role of accused was different from the role of other accused person---Prosecution had failed to connect accused (Chowkidar) with absconding accused---Even the spy had not named accused among the suspected drug peddlers---Prosecution had failed to connect accused with recovery of said contraband items and mere presence of accused on the place would not implicate him in the involvement of said crime---Reasonable doubt, in circumstances had been created with regard to the role of accused---Prosecution having not been able to establish its case, accused was liable to be given the benefit of doubt; it was better to acquit 100 guilty persons than to charge one innocent person---Accused in circumstances was acquitted of the charge and was released.

Haji Inayat and another v. The State 2010 PCr.LJ 825; Ghulam Hussain and 9 others v. The State 2011 PCr.LJ 72; Mian Muhammad Arshad v. The State 2003 PCr.LJ 762; Amanat Ali and 2 others v. The State 2008 SCMR 991; Haji Rab Nawaz v. Sikandar Zulqarnain and 7 others 1998 SCMR 25; Muhammad Iqbal v. The State 1984 SCMR 930; Noor Alam v. The State 2003 PCr.LJ 2003; Sher Khan v. The State 2003 MLD 259; Zahoor Ahmed Awan v. The State 1997 SCMR 543; Nek Muhammad and another v. The State PLD 1995 SC 516; Shawaz Khan v. The State 2009 PCr.LJ 480; Sherzada v. The State 1993 SCMR 149; Munawar Hussain Manj v. The State 2003 YLR 1035; Johar Ali and another v. The State 2003 PCr.LJ 680; Nazar Hussain v. The State 2007 YLR 1601; Din Muhammad v. The Crown 1969 SCMR 777; Abid Ali and 2 others v. The State 2011 SCMR 208; The State v. Tariq Mehmood 1987 PCr.LJ 2173; Muhammad Idrees Butt and 4 others v. The State 2004 YLR 3017; Rab Nawaz and others v. The State PLD 1994 SC 858; Munir Ahmed alias Munni v. The State 2001 SCMR 56; Syed Karim v. Anti-Narcotics Force PLD 2003 Karachi 606; Muhammad Janas and another v. The State 2010 SCMR 1016; Sikandar v. The State PLD 1963 SC 17; 2011 YLR 2276 and Meharban v. State 2011 PCr.LJ 8 ref.

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

----Ss. 6 & 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Two co-accused were established to be the custodians and the drivers of the trucks carrying charas---When the Police party apprehended said accused, they had specifically pointed out not only about the secret cavities in the container, but also about the charas in one of the trucks---Accused admitted that they were in collaboration and consultation with international drug peddlers; and had concealed said charas on their instructions---Chemical Examiner's report was in positive and necessary legal requirements in that regard had been fulfilled by the prosecution---No significant material contradiction, improvement and discrepancy were in the deposition of prosecution witnesses, except few minor contradictions, which were ignorable---No enmity of the Police with accused persons to falsely implicate them was established---Deposition of prosecution witnesses had mostly remained the same, unshettered and consistent---Prosecution could not be said to have not proved its case against accused persons beyond reasonable doubt---Accused persons having been found guilty of the charge punishable under Ss.6 & 9(c) of Control of Narcotic Substances Act, 1997, they were rightly convicted and sentenced---Order passed by the Trial Court was maintained, in circumstances.

Mehrab Khan v. The State PLD 2002 Quetta 58; Wajid Ali Shah v. The State 2002 MLD 1982; Khawar v. The State 2003 PCr.LJ 811; Zafar v. State 2008 SCMR 1254; Muhammad Mushtaq v. State 2008 SCMR 742; Bahawal Khan v. State 2008 YLR 2158; Lal Muhammad alias Haji Laloo v. State PLD 2009 Kar. 212; Abid Ali and 2 others v. The State 2011 SCMR 208; State through Advocate-General Sindh v. Bashir and others PLD 1997 SC 408 and Mehrab Khan v. The State PLD 2002 Quetta 58 ref.

Muhammad Aslam Sheikh, Saifullah, Waseem Samo and Nusrat Gul Malik for Appellants.

Hussain Bux Baloch, Special Prosecutor-General (ANF) for ANF.

Dates of hearings: 12th and 27th May, 2011.

2011 P Cr. L J 1910

[Karachi]

Before Shahid Anwar Bajwa, J

TAJ MUHAMMAD and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 364 of 2011, decided on 13th July, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 148 & 149---Qatl-e-amd---Bail, grant of---Statutory delay---Case came up for hearing on so many occasions, but was not proceeded for hearing for one reason or the other, primarily because either accused persons were not produced or the court was vacant or there was strike---Only at one occasion during a long period, advocate for accused was absent---On majority of the dates the case could not proceed for no fault of accused or their counsel---Accused, in circumstances, were entitled to statutory benefit of delay in disposal of the case---State Counsel had contended that since accused had murdered two persons, they were hardened, desperate and dangerous criminals---Court could not lose sight of the fact that guilt or innocent of accused persons was yet to be proved at trial---No material had been pointed out by State Counsel establishing or at least pointing out allegations of similar or any other dastardly acts on the part of accused persons---Since on number of occasions accused were not produced in the court, accused were not responsible for delay in disposal of the case and they were entitled to benefit of statutory delay---Accused were admitted to bail, in circumstances.

Muhammad Yousif v. The State 2000 SCMR 79; Muhammad Sadik v. The State 1980 SCMR 203; Abdur Rashid v. The State 1998 SCMR 897 and Mst. Sahib Khatoon v. Bakhsal 2001 MLD 229 ref.

Habibullah G. Ghouri for Applicants.

Ahsan Ahmed Quraishi and Miss Rubina Dhamrah for the State.

2011 P Cr. L J 1953

[Karachi]

Before Salman Hamid, J

GADA ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. D-578 of 2010, decided on 21st January, 2011.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 2(c), 20, 21 & 51(2)---Possession of narcotics---Bail, refusal of---Accused according to the F.I.R. was found to be in possession of contraband "charas", if not in his own capacity, at least in the capacity of an "associate" within the meaning of S.2(c) of the Control of Narcotic Substances Act, 1997---Contention that the premises from where the "charas" was recovered and seized did not belong to accused could not be looked into at the bail stage, particularly when the burden lay on the accused to prove that the said premises did not belong to him---Matter being that of urgency, dispensing of obtaining the warrants was justified, otherwise the attempt to raid would have been failed and the chance of recovery of huge amount of "charas" could have been totally lost---Sections 20 and 21 of the Act being not mandatory and only directory in nature, strict non-adherence thereof was not fatal and the raid was not illegal---Police employees were competent like any other independent witnesses and their testimony could not be disregarded merely on the ground of their being such employees---Huge quantity of contraband "charas" weighing 379.5 kilograms being involved in the case, the same was not a fit case for grant of bail to accused, as mentioned in S.51(2) of the Act---Accused had been apprehended on the spot with a big quantity of "charas"---Bail was declined to accused in circumstances.

Gul Zaman v. The State 1999 SCMR 1271; Sakina Bibi v. The State 2008 SCMR 1111 and Muhammadullah v. The State 2009 SCMR 954 distinguished.

Karl John Joseph v. The State PLD 2004 SC 394; Zafar v. The State 2008 SCMR 1254 and Muhammad Hanif v. The State 2003 SCMR 1237 ref.

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

----Ss. 20 & 21---Power to issue warrants etc.---Nature and effect---Provisions of Ss. 20 and 21 of the Control of Narcotic Substances Act, 1997, are not mandatory but only directory in nature and, therefore, strict non-adherence thereto is not fatal to prosecution case.

Karl John Joseph v. The State PLD 2004 SC 394 and Zafar v. The State 2008 SCMR 1254 ref.

(c) Interpretation of statutes---

----In the presence of special law and general law on the subject, provisions of special law shall prevail.

Habibullah Ghauri for Applicant.

Faizullah Koari, Public Prosecutor, ANF for the State.

2011 P Cr. L J 1983

[Karachi]

Before Aqeel Ahmed Abbasi, J

FAISAL ELLAHI and another---Applicants

Versus

THE STATE---Respondent

Spl. Criminal Bail Applications Nos. 5, 6, 7, 8, 9, 12, 14, 15, 16 and 20 of 2011, decided on 11th August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Sales Tax Act (VII of 1990), Ss.2(37) & 33---Tax fraud---Bail, grant of---Further inquiry---No action had been taken against the registered person i.e. end of users who allegedly claimed input adjustment of tax based upon fake invoices allegedly prepared and issued by accused person---No action had been taken against tax officials who abetted and connived in the alleged tax fraud---First Information Report or interim challan did not mention about preparation of the mashirnamas at the spot, and associating two independent private witnesses as required under S.103, Cr.P.C.---Alleged offence did not fall within the prohibitory clause of S.497, Cr.P.C. whereas punishment under S.33 of Sales Tax Act, 1990 was five years or fine or both, which could be determined after taking evidence and on conclusion of the proceedings---Investigation had been completed and accused were no more required for further investigation---Trial had not commenced even after a lapse of considerable period of seven months from their arrest, which reflected upon the mala fide of the prosecution---Accused had been able to show that the prosecution story could not be treated as free from doubt and the matter required further inquiry---Accused had no previous history, whereas the alleged confessional statement before the Police in the absence of any other connecting material could not be given due weight at bail stage---Bail was granted.

Akhtar Zaman Khan v. The State 2010 YLR 804; Atta-ul-Haq v. The State 2006 MLD 1901; Masood and others v. The State PLD 2005 Pesh. 150; Arshad Mahmood v. The State 1985 PCr.LJ 2048; Zafar Iqbal v. Muhammad Anwar 2009 SCMR 1488; Syed Amir Ahmed Hashmi v. The State PLD 2004 Kar. 617; Muhammad Nadeem Siddiqui v. The State 2008 YLR 2666; Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Subhan Khan v. The State 2002 SCMR 1797 and Saeed Ahmed v. The State 1996 SCMR 1132 rel.

Naseem Malik v. The State 2004 SCMR 283; Shah Muhammad v. The State 1996 SCMR 981; Haji Muhammad Nazar v. The State 2008 SCMR 807; Muhammad Siddiqui v. Imtiaz Begum 2002 SCMR 442; Imtiaz Ahmed v. The state PLD 1997 SC 545 and Pir Bakhsh v. The State 1999 PCr.LJ 111 distinguished.

Muhammad Ilyas Khan, Raja Sikandar Khan Yasir, Khaleeq Ahmed, Shamim Akhtar and Aqeel Ahmed for Applicants.

Rana Muhammad Shamim, Muhammad Qasim, Standing Counsel along with I.O. Najeebullah Jafri and Farhatullah Jafri for the State.

Date of hearing: 4 and 5th August, 2011.

2011PCr.LJ 2

[Lahore]

Before Ijaz Ahmed Chaudhry and Sh. Ahmad Farooq, JJ

SOHAIL ZIA BUTT---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 2118 of 2010, heard on 11th October, 2010.

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

----S.31-A---Abscondance of accused---Scope---Provision of S. 31-A of National Accountability Ordinance, 1999, constitutes a distinct offence.

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

----Ss. 31-A & 32---Constitution of Pakistan, Art. 9---Appeal---Trial in absentia---Wilful avoiding of process---Proof.--Security of person---Cash security, furnishing of---Accused had gone abroad on 10-5-2000, whereas warrant for arrest of accused was issued by Chairman NAB on 12-1-2001 and later on reference was filed---Trial Court in absence of accused conducted the trial and passed conviction and sentence against him---Validity---When proceedings under S. 31-A of National Accountability Ordinance, 1999, were initiated against the accused, he was not present in Pakistan and had gone abroad before initiation of proceedings in question and he was unaware of the proceedings---Nothing was available on record which could be suggestive of the fact that Chairman NAB had ever issued any process against accused at his address abroad---Prosecution failed to prove the fact that accused had deliberately or wilfully evaded to appear---Trial in absentia offended against provisions of Art. 9 of the Constitution---High Court in exercise of appellate jurisdiction set aside conviction and sentence awarded to accused in absentia, and remanded the case to Trial Court for holding fresh trial by affording him opportunity to defend---High Court directed the Trial Court to release the accused subject to deposit of an amount of Rs. 2 million and the amount would be kept in safe custody till the final conclusion of trial---Appeal was allowed accordingly.

Manzar Qayyum v. The State and others PLD 2006 SC 343 rel.

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

----Ss. 31-A & 32---Limitation Act (IX of 1908), Art. 81---Appeal---Limitation---Conviction in absentia---Knowledge of accused---Accused was convicted and sentenced in absentia in year, 2002 and he filed appeal in year, 2010---Plea raised by prosecution was that appeal filed by accused was barred by limitation---Validity---Judgment convicting accused was passed in his absentia and he had no knowledge of passing of the conviction against him, therefore, limitation would run from the date of gaining knowledge by accused that he had been convicted and sentenced---Appeal was within time in circumstances.

Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286 and Hafeez Ahmed v. Civil Judge, Lahore 2008 MLD 91 distinguished.

Syed Ihtesham Qadir Shah, Qazi Misbah-ul-Hassan and Ghulam Sabhani for Appellant.

Haroon Rasheed Cheema, Additional Prosecutor-General NAB and Mian Muhammad Bashir Deputy Prosecutor-General NAB for the State.

Date of hearing: 11th October, 2010.

2011 P Cr. LJ 21

[Lahore]

Before Sh. Najam-ul-Hasan and Muhammad Anwaarul Haq, JJ

MUHAMMAD SAJJAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1345 and Murder Reference No. 442 of 2005, heard on 7th July, 2010.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Complainant was not the eye-witness of the occurrence and he had got registered the F.I.R. against unknown persons regarding the murder of his minor son---Mother of the deceased child on the same day made a statement before the police nominating the accused for the murder of her son, mainly on the ground of the accused having made an extra judicial confession before her in that regard---Accused had also made a confessional statement under S. 164, Cr. P. C. before a Magistrate, which was fully corroborated by the aforesaid statement of the mother of the deceased made before the police as well as before the Magistrate---Accused in his confession had described the way he had committed the offence and caused injuries to the deceased child---Presence of acid burns and incised wounds on the abdomen of the deceased had fully corroborated the statement of the accused made before the Magistrate---Recovery of "Sooa" and "Chhuri", weapons of offence, were also found to be stained with blood---Mother of the deceased in her both the statements had also implicated herself putting her respect and honour at stake and she could not be disbelieved, especially when she had no reason for false implication of accused---Confessional statement of the accused had been recorded by the Magistrate after complying with all the necessary formalities on the next day of his arrest, in accordance with law---Accused, no doubt had retracted his confessional statement, but the retracted confession of an accused, either judicial or extra judicial, could be used for conviction---Involvement of accused in the murder of the deceased had been proved beyond reasonable doubt---Accused had brutally murdered a small child of six years of age and no mitigating circumstance was available in his favour---Conviction and sentence of accused were affirmed in circumstances.

Muhammad Shafi v. Muhammad Raza and another 2008 SCMR 329; Hafiz Muhammad Arshad v. The State PLD 2007 Lah. 324; Ibrahim and others v. The State 2009 SCMR 407; Manjeet Singh v. The State PLD 2006 SC 30 and Nizam-ud-Din v. Riaz and another 2010 SCMR 457 ref.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Confession---Retracted confession of an accused, either judicial or extra judicial, canbe used for conviction.

Manjeet Singh v. The State PLD 2006 SC 30 and Nizam-ud-Din v. Riaz and another 2010 SCMR 457 ref.

Shaib Zafar for Appellant.

Awais Mazhar, Deputy Prosecutor-General for the State.

Date of hearing: 7th July, 2010.

2011 P Cr.LJ 38

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

ZAFAR IQBAL and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 2059 and Murder Reference No. 914 of 2004, decided on 21st April, 2010.

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

----S. 302(b)/34---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---F.I.R. had been registered without any delay---Defence had not denied the place of incident, which was neither a normal place of business nor residence of the deceased, therefore, if the deceased was present at the place of occurrence then the presence of eye-witnesses there was also probable---Medical evidence had supported the role attributed to accused in the occurrence---Recovery of "Sua", weapon of offence, at the instance of accused had further corroborated the ocular version---Discrepancies in recovery evidence were immaterial---Conviction of accused, therefore, was maintained---However, accused during a fight between the parties had picked up the "Sua" from the nearly shop and gave blows with the same to the deceased, one of which had proved fatal---Murder was not preplanned and nobody knew as to what had exactly happened at the spot between the parties---No motive was assigned to accused---Deceased was involved in many criminal cases---Immediate cause of action was shrouded in mystery---Sentence of death of accused was converted into imprisonment for life in circumstances.

Mushtaq Ahmad v. The State PLD 2004 SC 150 and Muhammad Ibrar v. The State 2006 SCMR 1175 ref.

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

----S. 302(b)/34---Qatl-e-amd Appreciation of evidence---Benefit of doubt---Circumstances had suggested that the accused was neither present at the spot, nor did he cause any injury to the deceased---Nothing incriminating was recovered from the accused---Motive alleged by prosecution against the accused was not convincing---Trial Court while sentencing the accused had relied upon the finding of the Investigating Officer---Accused could not be held to' have shared the common intention with his co-accused---False implication of accused in the case could not be ruled out---Accused was acquitted on benefit of doubt in circumstances.

Ghulam Farid Sanotra and Irfan Ahmad Khan for Appellants.

Ch. Muhammad Rafique Warriach for Complainant.

M.M. Alam Chaudhry, Additional Prosecutor-General, Punjab for the State.

Dates of hearing: 20th and 21st April, 2010.

2011 P Cr. LJ 85

[Lahore]

Before Sh. Ahmad Farooq, J

MUHAMMAD AKRAM and another---Petitioners

Versus

GOVERNMENT OF PUNJAB through Secretary and 4 others---Respondents

Writ Petition No. 12793 of 2010, decided on 5th July, 2010.

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

----S. 3(1)--- Constitution of Pakistan, Art. 199--- Constitutional petition---Detention of accused on account of his activities being prejudicial to the maintenance of public order---Validity---District Co-ordination Officer who had issued the impugned detention orders on his satisfaction, had not chosen to defend his orders---Sole ground for ordering the detention of the petitioner was his alleged involvement in various criminal cases, which had hardly furnished a basis for detaining him---Guilt or innocence of a detenu involved in criminal cases could only be determined by Trial Court, whereas while passing an order under S. 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960, the authority before passing the order must satisfy itself that the activities of the person directed to be arrested and detained were prejudicial to the public safety or the maintenance of public order---Material placed before the District Coordination Officer could not be considered to be sufficient for passing three consecutive detention orders of the petitioner---Person who was already under detention for the last 60 days in pursuance of the two previous orders could not be involved in an activity prejudicial to public safety or maintenance of public order warranting issuance of a third detention order---Impugned orders appeared to have been issued mechanically by the respondent authority without collecting any material---Grounds of detention were generalized and vague, which did not conform to requirements of law---Impugned orders had been passed in violation of the safeguards and without fulfilling the requirements as provided in S.3(1) read with S. 26 of the said Ordinance, which impinged upon the fundamental rights of the petitioner enshrived in the Constitution and the same were corum non judice and nullity in the eye of law---Said orders were set aside accordingly and the detenu was directed to be set at liberty forthwith.

Rana Sana Ullah Khan, Advocate v. Secretary, Home Department, Government of Punjab, Civil Secretariat, Lahore 2001 PCr.LJ 2004 and Arbab Akbar Adil v. Government of Sindh through Home Secretary, Government of Sindh Karachi PLD 2005 Kar. 538 ref.

Ali Imran Awan for Petitioners.

Jawad Hassan, Additional Advocate-General for Respondents.

2011 P Cr. LJ 95

[Lahore]

Before Iqbal Hameed-ur-Rahman, J

IRFAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 939 of 2006, heard on 24th September, 2010.

Penal Code (XLV of 1860)---

----Ss. 364, 302 & 34---Kidnapping or abducting in order to murder, qatl-e-amd, acts done by several persons in furtherance of common intention---Appreciation of evidence---Circumstantial evidence---Benefit of doubt---Confession---Evidentiary value---Accused could not be convicted on the basis of extra judicial confession and recovery of half portion of rickshaw which was made without associating any independent witness from the locality; such recovery was doubtful and benefit of doubt should have gone to the accused---Accused could not be convicted and awarded life imprisonment on the circumstantial evidence in the absence of any direct evidence---Extra judicial confession being weakest form of evidence, needed to be evaluated with care and caution---Accused was nominated through supplementary statements recorded five months after the occurrence---No direct evidence connected the accused with the commission of offence---Case against accused was full of doubts and benefit of doubt was extended to him---Appeal was accepted setting aside the impugned judgment and accused was acquitted of the charge.

Wazarat Hussain v. Nazir Akhtar and another 2010 PCr.LJ 1567 and Muhammad Aslam v. Sabir Hussain and others 2009 SCMR 985 ref.

Ali Khan v. The State 1999 SCMR 955, fol.

Muhammad Awais Khalid v. The State 2009 PCr.LJ 116 and Safdar Shah v. The State 1999 MLD 1240 rel.

Ch. Mumtaz Hussain Shahid for Appellant.

Ghulam Qadir Bari, APG for the State.

Date of hearing: 24th September, 2010.

2011 P Cr. LJ 104

[Lahore]

Before Muhammad Anwar Bhaur and Waqar Hassan Mir, JJ

Syed AZMAT HUSSAIN---Petitioner

Versus

CHAIRMAN, NAB and others-Respondents

Writ Petition No. 13081 of 2010, decided on 15th July, 2010.

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

----S.12---Power to freeze property---Term "associate "---Connotation---"Associate" is a person/accused who is connected in crime with main accused and nexus to the offence is established through investigation highlighting therein any transaction or crime proceeds, the trial of which leads to an irresistible conclusion that the accused is "associate" and privy to the offence.

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

----Ss. 12 & 23---Constitution of Pakistan, Art. 199---Constitutional petition---Petitioner had assailed the order passed by the NAB Authorities for freezing his Bank account as well as the notice directing him to appear before the NAB Authorities as a "Benamidar"---Despite a probe and investigation by the NAB in the matter for the last about three years no evidence whatsoever had become available against the accused/Petitioner---None of the hundreds of claimants appearing and making statements in the matter-had implicated the petitioner in any manner---If the petitioner was not appearing before the NAB Authorities as claimed, even then he could be proceeded against as P.O.; thus, no material was so far available against the' petitioner as investigation was to be proceeded and material collected, whether the petitioner appeared before the Investigating Officer or not---During the course of the aforesaid period of three years four Accountability References had been filed against different accused on different allegations, but petitioner was not nominated in any one of them as an accused---Showing the petitioner as a prosecution witness in one of the said references would not term him as "benamidar'-by any stretch of law---Petitioner, therefore, was neither an accused nor "Benamidar", but was simply a prosecution witness against an accused in the Reference---Lifting of any caution on the Bank account of the petitioner and defreezing the same was directed by High Court in circumstances---Constitutional petition was allowed accordingly.

The State through Prosecutor-General Accountability, NAB, Islamabad v. Babar Ali Kharal PLD 2008 Lah. 347 and Khan Muhammad Mahesar v. National Accountability Bureau (Sindh) and another 2010 PCr.LJ 579 ref.

Muhammad Amjad Pervaiz for Petitioner.

Haroon-ur-Rashid Cheema, Special Prosecutor for NAB and Allah Rakha, Investigating Officer, NAB for Respondents.

2011 P Cr. L J 129

[Lahore]

Before Sh. Najam-ul-Hasan and Muhammad Anwaarul Haq, JJ

RASHEED alias SHEEDA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 28-J of 2007 and Murder Reference No. 657 of 2005, heard on 21st October, 2010.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 337-L(2) & 337-F(ii)---Qatl-e-amd, attempt to commit qatl-e-amd, hurt, Ghayr-jaifah---Appreciation of evidence---Benefit of doubt---Sentence, reduction in---Accused was apprehended from the place of occurrence---Occurrence had taken place at a wedding ceremony---Eye-witnesses were not mere chance witnesses as their presence at the place of occurrence was duly explained, therefore, sole evidence of complainant was sufficient for maintaining conviction of accused---Recovery of gun was of no value as no empty was recovered from the crime scene---Prosecution could not explain the motive for committing the offence before a gathering of more than hundred people when he could do the same at any other place or time---Prosecution version was not in line with medical evidence---Involvement of accused in offence could not be denied as no reason for his false implication or substitution for someone else was established---Accused did not repeat fire and no empty was recovered from the place of occurrence--Accused was entitled to certain exceptions as benefit of doubt had to be exercised in favour of the accused while awarding sentence---High Court while maintaining conviction of the accused converted his death sentence into life imprisonment---Murder Reference was answered in the negative.

Muhammad Anwar Khokhar for Appellant.

Shahid Bashir Chaudhry, Dy. Prosecutor-General for' the State.

Date of hearing: 21st October, 2010.

2011 P Cr. L J 140

[Lahore]

Before Sh. Najam-ul-Hasan and Muhammad Anwaarul Haq, JJ

MUHAMMAD RAMZAN and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 470-J and 471-J of 2006, Criminal Revision No. 587 and Murder Reference No. 329 of 2005, heard on 30th August, 2010.

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

----Ss. 302(b)/34, 324/34, 336/34 & 394/34---Qatl-e-amd, attempt to commit qatl-e-amd, hurt "Itlaf-i-salahiyyat-e-udw", voluntarily causing hurt in committing robbery---Appreciation of evidence---Benefit of doubt---Occurrence had taken place at night---No source of light was described in the F.I. R.-Later on, a torch and moonlight had been introduced by the witnesses at the trial as the sources for having seen the incident---Presence of moonlight at the time of occurrence was not proved on record---Benefit of doubt created by the improvements made by the prosecution witnesses for filling the lacuna had to go to the accused---Nothing incriminating was recovered from the accused---No article was robbed---No crime empty or even the blood-stained earth had been collected by the police from the place of occurrence---F.I.R. had been registered after an unexplained delay of 18 hours of the occurrence and after 15 hours of medical examination of the injured--F.I.R. was lodged against unknown culprits---Witnesses had identified the accused in the identification parade held after five months of the occurrence---No source of involvement of accused in the case had come on record---Accused had no previous criminal history---Description of accused as given in the F.I.R. did not tally with the description of the present accused---Ocular testimony was not supported by the motive, recovery and medical evidence---Benefit of doubt was extended to accused in circumstances and they were acquitted accordingly.

Muhammad Saleem v. The State 2010 SCMR 374; Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Muhammad Akram v. The State 2009 SCMR 230 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, 336/34 & 394/34---Qatl-e-amd, attempt to commit qatl-e-amd, hurt "Itlaf-i-salahiyyat-e-udw ", voluntarily causing hurt in committing robbery---Appreciation of evidence---Benefit of doubt---Improvements made by prosecution witnesses---Effect---Improvements made and lacuna filled by prosecution witnesses in the case at the trial creates doubt, benefit of which must go to the accused.

Muhammad Saleem v. The State 2010 SCMR 374 ref.

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

----Ss. 302(b)/34, 324/34, 336/34 & 394/34---Qatl-e-amd, attempt to commit qatl-e-amd, hurt "Itlaf-i-salahiyyat-e-udw ", voluntarily causing hurt in committing robbery---Appreciation of evidence---Benefit of doubt---Principle---For the purpose of giving benefit of doubt to an accused person, more than one infirmity is not required---Single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge, makes the whole case doubtful.

Muhammad Akram v. The State 2009 SCMR 230 and Ghulam Qadir and 2 others v. The State 2008 SCMR 1221 ref.

Shahid Azeem, Defence Counsel for Appellants.

Malik Muhammad Imtiaz Mahal for the Complainant.

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

Date of hearing: 30th August, 2010.

2011 P Cr. L J 167

[Lahore]

Before Sardar Tariq Masood and Sardar Muhammad Shamim Khan, JJ

ALLAH DITTA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 596 of 2006 and Murder Reference No. 733 of 2004, heard on 10th June, 2010.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), Ss. 164, 265-F & 376(b)---Qatle-e-amd---Conviction recorded on the confession of accused---Case remanded---Trial Court after framing of charge instead of recording prosecution evidence as required by S. 265-F, Cr.P.C. recorded confessional statement of accused and acting in under haste had sentenced him to death in a careless manner---Accused had taken a specific plea for committing the murder of the deceased---Trial Court was duty bound to record the prosecution evidence despite the confession made by accused and to assess the evidentiary value of the same, as capital punishment was likely to be awarded to him solely on the ground of having admitted his guilt---Trial Court having failed to do so impugned judgment was set aside and the case was remanded to Trial Court under S. 376(6), Cr.P.C. for trial afresh on the same charge from the stage of making the confessional statement by the accused---Appeal was disposed of accordingly.

Loung v. The State 1976 PCr.LJ 204; Tariq Mehmood v. The State 2000 PCr.LJ 837; Atif Abidullah v. The State 2010 MLD 599 and Akbar v. The State (Criminal Jail Appeal No. 134 of 1974) ref.

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

---Ss. 265-E & 265-F---Penal code (XLV of 1860), S. 302---Qatl-e­-amd---Confession made by accused---Conviction---Practice and procedure---Despite there being no bar to the acceptance of the plea of guilt of accused, conviction should not normally be based on the plea of guilt in cases involving punishment of death or imprisonment for life---Plea of guilt is not usually accepted---Trial Court should record the evidence itself and judge the case in the light of the evidence so recorded, instead of relying on the plea of guilt or on the evidence recorded by the Enquiry Court.

Loung v. The State 1997 PCr.LJ 204 ref.

Syed Altaf Hussain Bukhari, Defence Counsel.

Nemo for Complainant.

Mian Bashir Ahmad Bhatti, DPG for the State.

Date of hearing: 10th June, 2010.

2011 P Cr. LJ 182

[Lahore]

Before Mamoon Rashid Sheikh, J

Mst. YASMEEN---Petitioner

Versus

JAVAID IQBAL and 2 others---Respondents

Criminal Miscellaneous No. 620-H of 2010, decided on 28th May, 2010.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus---Custody of minor---Petitioner, paternal aunt of the minor living abroad, alleged that minor who was a special child was handed over to her by parents of the minor for treatment abroad and they had taken the minor back---Validity---Minor was in the custody of natural parents where he was happy in their custody and was not agitated or disturbed in any manner---Petitioner did not have any certificate issued by Guardian Court in his favour or any other instrument appointing her as the duly constituted guardian of the minor---Petitioner was unable to establish that she had independent source of income or that her relationship with her husband was not going through a rough patch---High Court declined to interfere in the custody of minor with respondents---Petition was dismissed in circumstances.

Abdul Rehman Khakwani and another v. Abdul Majid Khakwani and 2 others 1997 SCMR 1480 distinguished.

Muhammad Nawaz Chaudhary for Petitioner.

Muhammad Farid Chaudhary for Respondents Nos. 1 and 2.

Shaukat Fazal, A.S.-I. Police Station, Manga along with the alleged detenue.

2011 P Cr. L J 200

[Lahore]

Before Syed Akhlaq Ahmad and Hassan Raza Pasha, JJ

Messrs PEHLWAN MARBLE FACTORY through Muhammad Asif---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 661 of 2010, decided on 5th July, 2010.

Pakistan Environmental Protection Act (XXXIV of 1997)---

----Ss. 21(3) & 23(1)---Limitation Act (IX of 1908), Ss. 5 & 29(2)(a)(b)---Appeal to High Court---Delay---Application for condonation of delay---Appeal was time barred for four days---Period of limitation for filing appeal as prescribed under S. 23(1) of the Pakistan Environmental Protection Act, 1997, was thirty days---Period of limitation prescribed by the special law would prevail over the Limitation Act, 1908---Application made under S. 5 of the Limitation Act, 1908 for condonation of delay, thus, was not competent in view of the bar contained in S. 29(2)(a)(b) thereof:--Even otherwise, reason of delay as stated in the petition had not been supported by any documents like medical certificate etc.---Neither any cogent reason had been given for condonation of delay, nor the delay of each day had been explained---Application was dismissed in circumstances.

The State through Additional Advocate-General Sindh/Public Prosecutor v. Anis Bawani and 2 others 2000 PCr.LJ 1418; Akhtar Naeem alias Waqas Chaudhary v. The State PLD 2007 Kar. 277; Haji Muhammad Ashraf v. The State and 3 others 1999 MLD 330; Govt., of Pakistan v. Messrs Hassan Khan 2003 YLR 1686; Aziz-ur-Rehman Hamid v. Crescent Commercial Bank 2008 SCMR 54 and Ch. Muhammad Hanif v. Chairman Federation of Pakistan 2010 YLR 1577 rel.

Rana A. D. Kamran for Petitioner.

Rana Abdul Majeed, A.P.-G. for the State.

2011 P Cr. L J 221

[Lahore]

Before Sardar Tariq Masood and Syed Akhlaq Ahmad, JJ

MUM ULLAH KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 445 of 2005, heard on 18th August, 2010.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Police Officials were as good witnesses as any other public witness; their statements could not be discarded merely on the ground that they were Police Officials---Charas weighing 133 Kgs. was recovered from the secret cavities of the car on pointation of the accused---Driver on a long journey was supposed to have knowledge of the goods on board--- Plea of false implication was not substantiated by any cogent evidence---No illegality, irregularity, misreading or non-reading of evidence could be pointed out in the finding of guilt recorded against the accused---Appeal was dismissed in circumstances.

Muhammad Azam v. The State PLD 1996 SC 67; Naseer Ahmad v. The State 2004 SCMR 1361; Aala Muhammad and another v. The State 2008 SCMR 649; Muhammad Khan v. The State 2008 SCMR 1616; 2008 SCMR 1254 and Faiz Muhammad and another v. The State 2009 SCMR 1403 fol.

Malik Abdul Qayyum Khan for Appellant.

Sheikh Munir Ahmad, D.P.-G. for the State.

Date of hearing: 18th August, 2010.

2011 P Cr. L J 238

[Lahore]

Before Ijaz Ahmad Chaudhry, J

THE STATE through Collector Customs, Lahore---Appellant

Versus

HOTU RAM---Respondent

Criminal Appeal No. 53 of 2002, heard on 21st October, 2010.

Customs Act (IV of 1969)---

----S.156(1)8/14/70/139/178/139/2(s)---Criminal Procedure Code (V of 1898), S. 417---Appeal against acquittal---Accused was apprehended by the Customs Department at the Railway Station while carrying huge quantity of gold and silver in a hand bag, who was proceeding to India along with 19 other members of his family including men, women and children, for a religious ceremony---Articles recovered from the accused were all wearing ornaments, which did not belong to him alone but appeared to have been collected by him from his family members to keep the same in safe custody during journey to avoid any undue incident---Prosecution evidence about the handbag possessed by accused was contradictory and it did not appeal to a prudent mind that the accused 'travelling with his family including women and children would commit a crime like smuggling---Private tour by the accused with his family members for participating in same religious ceremony had been transformed into a criminal case by the officials of the Customs Department just to show their efficiency and in this way they had entangled not only an innocent person but also an innocent family in the case---Officials of the Customs Department had failed to understand that the professional smuggler would not adopt such a simple way to smuggle offending articles---Impugned judgment was based on a fair assessment of evidence and did not suffer from any illegality---Appeal was dismissed in circumstances.

Ch. Muhammad Zafar Iqbal for Appellant.

Mian Abdul Ghaffar for the State.

Date of hearing: 21st October, 2010.

2011 PCr. LJ252

[Lahore]

Before Waqar Hassan Mir, J

THE STATE---Appellant

Versus

ABDUL QAYYUM and another---Respondents

Criminal Appeals Nos. 1089 of 2007 and 1 of 2009, heard on 12th July, 2010.

(a) Appeal (Criminal)---

----Right of appeal, exercise of---Principles---Where the special law is silent with regard to the right of filing an appeal, such right cannot be inferred by way of implication on the basis of general law---Appeal is purely a creature of statute and unless a right of appeal is clearly and expressly given by the statute, it does not exist, nor is there any scope for inferring such right by implication.

2007 CLC 1902; Syed Masroor Shah and others v. The State PLD 2005 SC 173; Habib Bank Ltd. v. The State and others 1993 SCMR 1853; Faiz-ur-Rehman v. The State and others PLD 2002 Pesh. 6; Ashiq Muhammad and others v. Khuda Baksh and others PLD 1998 Pesh. 68 and Abdul Qayyum v. Aziz-ur-Rehman Shah 2004 PCr. LJ 422 ref.

(b) Pakistan Criminal Law Amendment Act (XL of 1958)---

----S.10(2)---Criminal Procedure Code (V of 1898), S. 417(2-A)---Penal Code (XLV of 1860), S. 420/468/471/218/34---Prevention of Corruption Act (II of 1947), S. 5(2)---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, public servant framing incorrect record or writing with intent to save person from punishments or property from forfeiture and criminal misconduct---Appeals against acquittal---Maintainability---Appeal against the order of acquittal passed by Special Judge, Anti-Corruption, only be filed by the Public Prosecutor under S. 10(2) of the Pakistan Criminal Law Amendment Act, 1958, with the prior permission of the Central Government and not by a private person---Provisions of S. 10(2) of Pakistan Criminal Law Amendment Act, 1958, had minimized the scope of S. 417, Cr.P.C. by ousting the right of appeal by a private or aggrieved person to file appeal against the order of acquittal passed by the Special Judge---Right of appeal against acquittal under S. 417(2-A), Cr.P. C. had not been extended to cases decided by Special Courts and thus, the right of appeal given to aggrieved person against the order of acquittal under S. 417(2-A), Cr. P. C. could not be extended to private persons---Once the legislature itself had not provided right of appeal to the private person the same could not be availed through any other device or disguised manner before High Court---Record did not show that the Additional Prosecutor, who had filed the appeal, had been authorized by the Federal Government or a specific direction in writing had been issued to file the appeal against acquittal of the accused respondents---State appeal and private appeal against acquittal were not maintainable and the same were dismissed accordingly.

2007 CLC 1902; Syed Masroor Shah and others v. The State PLD 2005 SC 173; Habib Bank Ltd. v. The State and others 1993 SCMR 1853; Faiz-ur-Rehman v. The State and others PLD 2002 Pesh. 6; Ashiq Muhammad and others v. Khuda Baksh and others PLD 1998 Pesh. 68 and Abdul Qayyum v. Aziz-ur-Rehman Shah 2004 PCr.LJ 422 ref.

Muhammad Aslam Sindhu, Additional Prosecutor-General and M. Nasim Kashmiri for Appellant.

Muhammad Akram Qureshi for Respondent.

Date of hearing: 12th July, 2010.

2011 P Cr. L J 265

[Lahore]

Before Syed Akhlaq Ahmed, J

AAMIR HUSSAIN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 1329-B of 2010, decided on 24th August, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, refusal of---Accused had changed his stand before High Court regarding issuance of the disputed cheque to the complainant, from the one taken earlier by him before Sessions Court---Signature of the accused on the cheque and its dishonour by the Bank were admitted---Accused had defrauded the complainant of a huge amount of nine lac rupees by issuing bogus cheque, while such amount was not available in his account---No doubt, the offence with which the accused was charged did not fall under the prohibitory clause of S. 497(1), Cr.P.C., but grant of bail in such like cases was not a rule of universal application and each case had to be seen on its own facts and circumstances---Deeper appreciation of evidence was neither permissible nor warranted under the law at bail stage---Different alike F.I.Rs. registered against the accused showed that he was in the habit of issuing bogus cheques to different persons and was a cheat---Out of heavy amount of rupees nine lac accused had not so far returned even a single penny to the complainant---Accused did not deserve any leniency---Bail was refused to accused in circumstances.

Muhammad Akram v. The State 2008 MLD 303; Shameel Ahmad v. The State 2009 SCMR 174; Muhammad Afzal Javed v. Muhammad Akram and another 2010 PCr.LJ 622; Muhammad Siddique v. Imtiaz Begum and 2 others 2002 SCMR 442 and Muhammad Naeem v. The State 2010 PCr.LJ 504 rel.

Raja Ghaneem Aabir Khan for Petitioner.

Nemo for the State.

Atta Ullah for the Complainant/Respondent No. 2.

Iftikhar S.-I. along with record.

2011 P Cr. L J 289

[Lahore]

Before Sh. Najam-ul-Hasan and Sardar Tariq Masood, JJ

MUHAMMAD ANWAR and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 1546 and Murder Reference No. 613 of 2005, heard on 26th October, 2010.

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

----S. 302(b)/34---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Sentence, reduction in---F.I.R. was promptly registered--Occurrence had taken place in front of the house of accused in the street---Eye-witnesses were consistent on the point that accused had fired at the deceased---Medical evidence had fully supported the ocular testimony---Crime empty secured from the spot was found to have been fired from the gun recovered from the accused---Conviction of accused was consequently maintained---Accused, though armed with a .12 bore double barrel gun, was satisfied only after firing a single shot and he never tried to aggravate the offence---Place of occurrence was front of the house of accused---Presence of the deceased at the spot was only per chance---Despite some monetary dispute between the parties, something else appeared to have happened at the spur of the moment, which had resulted into the ugly occurrence---Gun used in the occurrence was a licensed gun of the accused and its presence at the place of incident did not indicate any planning by him---Benefits of doubt at every stage had to be extended to the accused and he was entitled to the same even in the question of sentence---Sentence of death of accused was altered to imprisonment for life in circumstances.

Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427; Muhammad Arshad and 2 others v. The State PLD 1996 SC 122 and Israr Ali v. The State 2007 SCMR 525 ref.

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

----S. 302(b)/34---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Mitigating circumstance---Single fire by an accused can be considered as an extenuating circumstance for awarding the lesser sentence.

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

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

----S. 302(b)/34---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Every benefit of doubt at every stage has to be extended to the accused, and the same shall go to him even on the matter of sentence.

Israr Ali v. The State 2007 SCMR 525 ref.

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

----S. 302(b)/34---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Accused along with his co-accused had allegedly caught hold the deceased at the time of occurrence, which was not believable, as no one would take the risk of receiving a fire-arm injury when the deceased was being fired at by the principal accused---Injury had been caused on the back of the deceased by firing from a close range---Accused was empty handed and no injury to the deceased was attributed to him---Common intention of the accused with other accused was not proved on record---Accused was given benefit of doubt and acquitted in circumstances.

Sh. Naveed Shehryar and Miss Najma Parveen for Appellants.

Shahid Bashir Chaudhry, Deputy Prosecutor-General for the State.

Muhammad Inayat Ullah Cheema for the Complainant.

Date of hearing: 26th October, 2010.

2011 P Cr. L J 315

[Lahore]

Before Syed Akhlaq Ahmad, J

SADIQ HUSSAIN---Petitioner

Versus

GHULAM RASUL and 6 others---Respondents

Writ Petition No. 7016 of 2010, decided on 6th July, 2010.

Illegal Dispossession Act (XI of 2005)---

----S. 3---West Pakistan Land Revenue Act (XVII of 1967), S. 175---Constitution of Pakistan, Art. 199---Constitutional petition---Encroaching upon public way/thoroughfare---Petitioner who claimed to be co-owner and co-sharer in Khata concerned along with the respondents, alleged that respondents, without resorting to partition of land, forcibly occupied some portion of the land in the said Khata and made obstacle and blocked the way from routing through---Said portion of land was shown as thoroughfare in the records of rights since so many years---Petitioner feeling aggrieved lodged petition under S.3(2) of Illegal Dispossession Act, 2005 which petition had been dismissed by the Trial Court---Validity---Petitioner had approached wrong forum for removal of alleged encroachment upon the thoroughfare---Section 175 of the West Pakistan Land Revenue Act, 1967 governed the controversy, which had laid down that if land was reserved for common purposes for the residents in the estate in which the land was situated and had been encroached upon by any person, Revenue Officer could, on application of the landowner, eject him from said land---Another remedy available to the petitioner was a complaint before the Area Magistrate in terms of S.133, Cr. P. C., which dealt with public nuisance---Petitioner had not adopted such procedure---Complaint under S.3 of Illegal Dispossession Act, 2005 regarding encroachment on public was not competent.

2008 PCr.LJ 1124 rel.

Malik Ashiq Muhammad for Petitioner.

2011 P Cr. L J 323

[Lahore]

Before Sh. Ahmad Farooq, J

MUHAMMAD INAM ALI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 8676/B of 2010, decided on 13th October, 2010.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.420/408/468/471---Cheating, criminal breach of trust, forgery, using as genuine a forged document---Pre-arrest bail, grant of---Benefit of doubt---F.I.R. earlier registered against accused on same allegations having been cancelled as a result of agreement between the parties, chances of the false implication of accused in the case by the complainants could not be ruled out---No date and time of the alleged embezzlement of the amount in question was mentioned in the F.I.R.---Unexplained delay of more in question was mentioned in the F.I.R.---Unexplained delay of more than one and a half month was taken in the registration of the case---Prima facie, the dispute between the parties was of rendition of accounts, which required detailed scrutiny of record---Even otherwise, the entire case of the prosecution was dependant on documentary evidence, which had already been collected by Investigating Officer---Four co-accused who had been found guilty by Investigating Officer, had been granted bail and the complainant did not raise any objection to the grant of such bail to said co-accused---Accused was declared innocent during an earlier investigation vide Police Diary---Commission of alleged offence by accused, in circumstances, was highly doubtful---Benefit of doubt was to be given to accused, even at bail stage---Offences falling within the mischief of Ss.420/471, P.P.C. were bailable, whereas the punishment of the offences, alleged to have been committed by accused under S.408/468, P.P.C. 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---Investigating Officer appeared in the court and categorically stated that he did not require accused for any further investigation or recovery---Intended arrest of accused, in circumstances, would not serve any purpose or advance the case of the prosecution, except his humiliation and harassment at the hands of the Police---Refusal of pre-arrest bail in the case would tantamount to punishing accused in advance---Bail before arrest was meant to protect the innocent citizens in the event of their involvement in criminal cases with mala fide intentions---Accused being entitled to concession of pre-arrest bail, interim pre-arrest bail already granted to accused was confirmed, in circumstances. ?

Muhammad Gulzar v. The State 2005 YLR 1645; Saeed Ahmad v. The State 1995 SCMR 170; Noor Muhammad v. The State 1990 PCr.LJ 732; Hayat Khan and 3 others v. The State and another 2009 YLR 560; Bashir Ahmad v. Muhammad Yunus and others 1990 PCr.LJ 1035 and Yameen v. The State 1994 PCr.LJ 924 ref.

Iftikhar Ahmad Malik for Petitioner.

Aitzaz Ahsan, Shaukat Ali Javed and Fawzi Zafar for the Complainant.

Muhammad Naeem Sheikh, Deputy Prosecutor-General with Mansoor Qamar, DSP and Imran, S.-I. for the State.

2011 P Cr. L J 344

[Lahore]

Before Muhammad Anwaarul Haq, J

ZAHID HUSSAIN---Petitioner

Versus

THE STATE and others---Respondents

Criminal 'Revision No. 1095 of 2010, decided on 10th December, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 410 & 423---Dismissal of criminal appeal for non-prosecution--Petitioner had assailed orders of the Trial Court whereby his criminal appeal against his conviction was dismissed for non prosecution; and later on his application for restoration of the same was also dismissed---After admission of criminal appeal, it could not be dismissed without adverting to the merits thereof; and non-appearance of the appellant or his counsel, was not a ground for dismissal, unless all the raised questions were determined and factual and legal aspects were thrashed as contemplated under S.423, Cr.P.C.---Impugned orders passed by the Trial Court, were not warranted by law; and were against well settled principle of criminal jurisprudence---Said orders were set aside by High Court and matter was remanded to the appellate court for decision of appeal afresh on merits after hearing both the parties strictly in accordance with law.

Muhammad Bakhsh v. The State 1986 SCMR 59 ref.

Khawar Mehmood for Petitioner.

Tasawar Ali Khan Rana, Deputy Prosecutor-General for the State.

Date of hearing: 10th December, 2010.

2011 P Cr. L J 357

[Lahore]

Before Muhammad Anwaarul Haq and Manzoor Ahmad Malik, JJ

MUHAMMAD MAZHAR---Appellant

Versus

MUHAMMAD FAYYAZ and others---Respondents

Criminal Appeal No. 1972 of 2004, decided on 3rd December, 2010.

Penal Code (XLV of 1860)---

----Ss. 302/148/149---Criminal Procedure Code (V of 1898), S.417---Qatl-e-amd---Appeal against acquittal---Deceased received injuries at point 'A' shown in the site plan, whereas the complainant and two prosecution witnesses claimed to have seen the occurrence, while standing at point 'B' at a distance of more than 770 feet and it did not sound to reason that complainant and prosecution witnesses could describe the weapons and seats of injuries---Case was that of cross firing between the complainant party and accused, wherein different weapons were freely used by the parties---Fact that a large number of empties, scattered over. a large area were collected by the Police, had indicated that occurrence did not took place as was mentioned in the F.I.R.---Complainant while lodging F.I.R., alleged that shot resulting into death of the deceased was fired by proclaimed offender---No injury on the person of the deceased was attributed to any of the twenty-eight accused persons---Subsequent improvement of the complainant through supplementary statement regarding attribution of an injury to an accused was afterthought on the face of it, as no importance was attached to a supplementary statement in preference to the F.I.R.---Eye-witness account and medical evidence, were at variance and did not coordinate with each other---Report of Forensic Science Laboratory, was not of any help to the prosecution being negative qua the accused persons---Counsel for the appellant was unable to point out any infirmity, legal or factual error in the impugned judgment and also remained unable to point out any particular or specific misreading or non-reading of the evidence on the part of the Trial Court---When an accused was acquitted from a case after regular trial, he would enjoy double presumption of innocence---Trial Court had given detailed convincing and plausible reasons for acquittal of the accused persons; and same were based upon accepted principles of criminal jurisprudence---No justification in circumstances existed to summon the twenty-eight accused persons in the appeal---Appeal was dismissed.

Khalid Javed and another v. The State 2003 SCMR 1419; Iftikhar Hussain and others v. The State 2004 SCMR 1185; Azhar Ali v. The State PLD 2010 SC 632; Inayatullah v. The State PLD 1979 SC 956; Sheo Swarup and others v. King Emperor AIR 1934 Privy Council 227 (2) and Yar Muhammad and 3 others v. The State 1992 SCMR 96 ref.

Malik Zafar Iqbal for Appellant.

Ch. Muhammad Mustafa, Deputy Prosecutor-General for the State.

Date of hearing: 3rd December, 2010.

2011 P Cr. L J 376

[Lahore]

Before Ijaz Ahmad Chaudhry and Sh. Ahmad Farooq, JJ

Dr. JAVAID SHAHBAZ RAB---Appellant

Versus

THE STATE through Chairman National Accountability Bureau, Islamabad---Respondent

Appeal No. 1673 of 2004, decided on 28th September, 2010.

National Accountability Ordinance (XVIII of 1999)---

----Ss.15, 25(b) & 32---Words "convicted" and "deemed to have been convicted"---Distinction and interpretation---Accused entered into plea bargain and Trial Court while awarding conviction to him under S. 15 of National Accountability Ordinance, 1999, imposed restriction on him to avail any finance facility from any bank or financial institution owned or controlled by government for a period of ten years---Plea raised by accused was that conviction awarded to any accused after trial was different from that which was awarded to any accused entered in plea bargaining---Validity---Terminology of plea bargaining was introduced in criminal law by National Accountability Ordinance, 1999, to provide an opportunity to accused persons voluntarily coming forward to return their assets or gains acquired or made by them in the course or as a consequence of any offence under National Accountability Ordinance, 1999--- Using another terminology of "convicted" and "deemed to have been convicted" was also meaningful, as the same was meant to create a distinction between those who opted to face the trial and the other who decided to discharge their liabilities---Both the categories of accused persons could not be treated alike by adopting any such interpretation of the terminology---Trial Court had misconstrued the provisions of law and thereby wrongly imposed restraint on accused as was envisaged in S. 15(b) of National Accountability Ordinance, 1999--- High Court set aside conviction of Trial Court to the extent of embargo imposed upon accused to obtain financial facilities from any bank or financial institutions owned by or controlled by government---Appeal was allowed accordingly.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 and Fecto Belarus Tractor Ltd. v. Federation of Pakistan PLD 2005 SC 605 rel.

Syda Maqsooma Zahra Bokhari for Appellant.

Haroon-ur-Rasheed Cheema, Special Prosecutor for the State.

2011 P Cr. L J 388

[Lahore]

Before Ch. Muhammad Tariq, J

ZIA FATIMA and others---Petitioners

Versus

STATION HOUSE OFFICER and 3 others---Respondents

Writ Petition No. 4589 of 2010, decided on 10th March, 2010.

Penal Code (XLV of 1860)---

----S. 496-A---Dissolution of Muslim Marriages Act (VIII of 1939), S.2(ix)---Constitution of Pakistan, Art.199---Constitutional petition---Enticing or taking away or detaining with criminal intent a woman---Constitutional petition---Petitioner, a Christian married lady, claimed that she converted her religion and became Muslim; that when she told her husband that there remained no relationship of husband and (Christian) wife, between them, her Christian husband became hostile and tortured her and tried to kill her but she escaped and fled out of the house---Said Lady stated that she had contracted marriage with a Muslim/co-accused according to her sweet will using her right of being sui juris and alleged that a criminal case had been registered against her on account of her marriage with Muslim---Validity Petitioner, admittedly had embraced Islam, but according to law of the country, petitioner was under obligation to file a suit for dissolution of marriage under S.2(ix) of the Dissolution of Muslim Marriages Act, 1939---Second nikah in presence of existing marriage was not warranted under the law---Constitutional petition was dismissed.

Syed Zaman Haider for Petitioners.

2011 P Cr. L J 396

[Lahore]

Before Iqbal Hameed-ur-Rahman and Mamoon Rashid Sheikh, JJ

NAZIR AHMAD---Appellant

Versus

A.S.J. and others---Respondents

I.C.A. No. 1004 of 2009, decided on 18th May, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Constitution of Pakistan, Art. 199---Law Reforms Ordinance (XII of 1972), S.3---Intra Court Appeal---Registration of case---Alternate remedy---Application under Ss. 22-A and 22-B, Cr.P.C. was dismissed by Justice of Peace and the order was maintained by Single Judge of the High Court in exercise of its constitutional jurisdiction---Validity---Single Judge of High Court had declined to intervene in constitutional jurisdiction for the appellant had not approached the High Court with clean hands and the very basis of his allegations appeared to be shaky and unreliable---Appellant had adequate alternate remedy by way of filing a private complaint in respect of allegations being levelled by him against respondents---Intra­court appeal was dismissed in circumstances.

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

Mian Muhammad Rauf for Appellant.

2011 P Cr. L J 405

[Lahore]

Before Sh. Ahmad Farooq, J

JAVED IQBAL---Petitioner

Versus

ADDITIONAL INSPECTOR-GENERAL OF POLICE and others---Respondents

Writ Petition No. 19492 of 2010, decided on 22nd October, 2010.

Police Order (22 of 2002)---

----Art. 18(6)---Electricity Act (IX of 1910), S.39-A---Constitution of Pakistan, Art.199---Constitutional petition---Theft of electricity---Change of investigation---Petitioner had prayed for passing a direction to Additional Inspector General of Police to change investigation of the case registered against him for theft of electricity under S.39-A of Electricity Act, 1910 and that Incharge investigation and S.H.O. were not recording his version as well as the statements of his witnesses in connivance with the complainant---Report of Inspector General of Police (Investigation), had made it clear that the request of the petitioner for change of investigation, as ordered by the Trial Court had been considered in accordance with Art.18(6) of Police Order, 2002---Members of the Board had unanimously come to the conclusion that there was no need for change of the investigation---Petitioner, in circumstances, had availed an alternative efficacious remedy---No fresh ground or material was available which could justify re-investigation of the case of the petitioner---Challan against the petitioner had been submitted in the court of competent jurisdiction---Petitioner had also filed a civil suit for declaration and mandatory injunction, which was pending adjudication---Constitutional petition was dismissed.

Ch. Waseem Ahmad Gujjar for Petitioner.

Jawad Hassan, Additional A.-G. for Respondent.

2011 P Cr. L J 408

[Lahore]

Before Muhammad Anwaarul Haq, J

AKBAR ALI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 10279-B of 2010, decided on 15th October, 2010.

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

----S. 498---Penal Code (XLV of 1860), S. 420/468/471---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Pre-arrest bail, refusal of---Accused was nominated in the F.I.R. with specific allegation of committing fraud with the complainant and preparing a forged power of attorney regarding a huge property in his favour---Investigation of the case had revealed that the alleged executants of the said power of attorney had not executed the same and that two of them resided abroad and they had not even visited Pakistan for the last ten years---Agreements showing money transaction between the parties could not be considered at this stage, as that would amount to deeper appreciation of the controversy between the parties---No mala fide or ulterior motive on the part of complainant or the police could be pointed out by the accused for his false involvement in the case---Sufficient incriminating material existed on record showing, prima facie, culpability of accused in the crime---Pre-arrest bail was denied to accused in circumstances.

Syed Lakhat-e-Hussnain v. State 2010 SCMR 855 ref.

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

----S. 497/498---Bail---Assessment of evidence---Principle---Authenticity of documents placed on record has to be determined at the first instance by Trial Court after recording evidence---Court seized with the matter of bail has only to see whether accused was connected with the commission of crime or not and for that purpose, only tentative assessment of evidence has to be made and deeper appreciation of evidence and circumstances appearing in the case at bail stage, is neither desirable nor permissible.

Syed Lakhat-e-Hussnain v. State 2010 SCMR 855 ref.

Muhammad Aqeel Wahid Chaudhary with the Petitioner in person.

Muhammad Ishaq, Deputy Prosecutor-General with Muhammad Arham, S.I./S.H.O. with Muhammad Ashraf S.I. (Inv.) for the State.

Ch. Iftikhar Ahmad for the Complainant.

2011 P Cr. L J 420

[Lahore]

Before Ijaz Ahmad, J

DILAWAR HUSSAIN---Petitioner

Versus

THE STATE and another-Respondents

Criminal Miscellaneous No. 2373-B of 2010, decided on 27th July, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 436/34---Mischief by fire or explosive substance with intent to destroy house, etc.---Bail, grant of---Putting a hut (jhuggy) on fire is a mischief, but it does not come within the ambit of S. 436, P.P.C.---Case against accused, therefore, did not fall within the prohibitory clause of S. 497(1), Cr.P.C.---Accused and his co-accused were only seen fleeing away from the place of occurrence---Nobody had seen the accused putting the hut (jhuggy) on fire---Question whether the accused had acted in furtherance of common intention of other co-accused and his vicarious liability in the matter, was yet to be determined by Trial Court---Accused was admitted to bail in circumstances.

Muhammad Javed Iqbal Thaheem for Petitioner.

Tahir Mehmood for the Complainant.

Syed Mukhtar Masood Bukhari, Learned DPG and Asghar S.I. along with record for the State.

2011 P Cr. L J 425

[Lahore] s

Before Sagheer Ahmed Qadri, J

SHABBIR AHMAD---Petitioner

Versus

DPO ATTOCK and others---Respondents

Writ Petition No. 3927 of 2010, decided on 28th September, 2010.

Punjab Prevention of Gambling Ordinance (VII of 1978)---

---Ss. 6 & 8---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of F.I.R.---Complainant Sub-Inspector of Police on having received an information about the commission of gambling in a "Baithak" himself conducted the search and arrested the accused and other co-accused, without getting the search warrant and informing the concerned Magistrate---"Baithak" commonly situated inside a residential house was certainly a private place---Said police officer had acted clearly in violation of the mandatory provisions of S. 8 of the Punjab Prevention of Gambling Ordinance, 1978---Availing of the remedy under S. 249-A, Cr.P.C. would be a futile effort just to linger on the agony of the accused---Due to the patent illegality committed by the complainant, registration of the F.I.R. and all the subsequent proceedings including investigation and submission of challan were void ab intio and the same were quashed accordingly.

Muhammad Asif v. The State and 6 others 2007 YLR 314 rel.

Abdullah S. Awan for Petitioner.

Razzaq A. Mirza, Additional Advocate-General and Safdar, Sub Inspector with record for Respondents.

2011 P Cr. L J 438

[Lahore]

Before Sh. Azmat Saeed, J

Mian ABDUL WAHEED---Petitioner

Versus

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

Writ Petition No. 11577 of 2009, heard on 19th October, 2010.

Criminal Procedure Code (V of 1898)---

---Ss. 22-A & 22-B---Constitution of Pakistan, Art. 199---Constitutional Petition---Ex-officio Justice of Peace had directed the SHO to record F.I.R. on the application of the complainant regarding dispute inter se the unofficial respondents about an agreement to sell some land---Validity---Accused petitioner admittedly was not a party to the said agreement of sale or the transaction---Complainant had not stated in his application that he had paid any money to the accused---Registration of F.I.R. was sought by the complainant after five years of the alleged transaction in dispute---Police had been harassing the accused regarding the same matter as indicated by the institution of two Constitutional petitions---Jurisdiction under Ss. 22-A and 22-B, Cr.P.C. could not be exercised mechanically by the Ex-Officio Justice of Peace by directing registration of F.I.Rs. in each and every case, which had to be decided on its own peculiar facts---Complainant had also an alternate remedy of filing a private complaint in the matter--Impugned order passed by the Ex-Officio Justice of Peace was set aside in circumstances---Constitutional petition was accepted accordingly.

Rai Ashraf and others v. Muhammad Saleem Bhatti PLD 2010 SC 691 ref.

Muhammad Ramzan Ch. for Petitioner.

Sh. Sohail Shakoor for Respondents.

Date of hearing : 19th October, 2010.

2011 P Cr. L J 447

[Lahore]

Before Ch. Shahid Saeed, J

JAVED IQBAL---Petitioner

Versus

S.H.O. and others---Respondents

Writ Petition No. 2406 of 2010, decided on 17th May, 2010.

Penal Code (XLV of 1860)---

----S. 406---Criminal Procedure Code (V of 1898), Ss.154 & 173---Constitution of Pakistan, Art.199---Criminal breach of trust---Constitutional petition---Quashing of F.I.R.---Allegation against accused was that he along with others misappropriated amount of the complainant and when complainant demanded said amount, accused threatened complainant of dire consequences---Counsel for the accused contended that case was registered against him on basis of mala fide--Validity-Mala fide whether factual or legal, was not a matter of presumption only, but was to be considered in the context of facts and circumstances of each case---Police functionaries were bound to take note of a cognizable offence, register the same and after due investigation submit the report to the court under S.173, Cr.P.C.---Record revealed that both the parties were at daggers drawn with each other---Conduct and manner of investigation was not normally to be scrutinized by the High Court in its constitutional jurisdiction which would amount to interference in the Police investigation---Constitutional petition was dismissed.

Muhammad Masud Khan for Petitioner.

2011 PCr.LJ 455

[Lahore]

Before Sh. Ahmad Farooq, J

MUHAMMAD ANWAR---Petitioner

Versus

DIRECTOR ANTI-CORRUPTION, SARGODHA and another---Respondents

Writ Petition No. 10123 of 2010, decided on 30th September, 2010.

Penal Code (XLV of 1860)---

----S. 409---Prevention of Corruption Act (II of 1947), S.5(2)---Constitution of Pakistan, Art.199---Constitutional petition---Criminal breach of trust by Public Servant and corruption---Quashing of F.I.R.---Investigation had proved that accused along with co-accused received amount in connection with the registries; and when their fraud was disclosed, they deposited said amount in the Government Treasury---Accused having been found guilty of the offence, judicial action was recommended to be taken against him by the Enquiry Officer---Investigation in the case had been completed and the challan had been submitted to the competent court---High Court, in exercise of powers under Art.199 of Constitution, could not assume the role of an Investigator or substitute the findings of guilt or innocence of accused recorded by the Investigating Officer---Not only from the bare perusal of F.I.R., but also from the deposit of embezzled amount in the Treasury by accused, prima facie, established a cognizable offence---However, if accused felt that prosecution had not sufficient incriminating material against him to prove his guilt, he could approach Trial Court for seeking his acquittal---Any interference by High Court would certainly tantamount to stifling the normal course of law, which was not the mandate of law, under which constitutional petition had been filed---Constitutional petition was dismissed.

Malik Saeed Hassan for Petitioner.

Jawad Hassan, Additional Advocate-General, Punjab for Respondent.

2011 PCr.LJ 470

[Lahore]

Before Sheikh Najam-ul-Hasan and Sardar Tariq Masood, JJ

MUHAMMAD WASIF KHAN and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeals Nos. 1785, 1956 and Criminal Revision No. 998 of 2009, heard on 3rd November, 2010.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---F.I.R. had been lodged after preliminary inquiry and consultation---Eye-witnesses had been changing their versions and making improvements in their statements at the trial to fill in the lacunas left in the F.I.R. and to bring the same in conformity with medical evidence---Deliberate and dishonest improvements had made the ocular statements doubtful and unreliable---Presence of injured eye-witnesses at the time and place of occurrence was established due to the injuries sustained by them, but their evidence did not inspire confidence due to the improvements made by them in the court---Crime empties having not been sent to Forensic Science Laboratory, Kalashnikov recovered from the accused in the absence of any matching report was not helpful to prosecution---Abscondence of accused alone was not sufficient to convict him when ocular testimony stood already discarded---Prosecution had not given any motive for the occurrence---Accused had brought on record strong reason for his false involvement in the case---Prosecution evidence was full of doubts, benefit whereof had to go to accused---Accused was acquitted in circumstances.

Iftikhar Hussain and others v. The State 2004 SCMR 1185; Farman Ahmad v. Muhammad Inayat and others 2007 SCMR 1825; Syed Saeed Muhammad Shah and another v. The State 1995 SCMR 550; Amir Zaman v. Mahboob and others 1985 SCMR 685; Sher Dil alias Sher Gul and another v. The State 1973 PCr.LJ 802; Alam Khan v. The State 1987 PCr.LJ 1677; Shahbaz Khan Jakhrani v. Lal Beg Jakhrani and others 1984 SCMR 42; Ilahi Bux v. The State 1982 SCMR 57; Said Ahmad v. Zammured Hussain and 4 others 1981 SCMR 795; The State v. Muhammad Raja and 3 others PLD 2004 Pesh. 1; Muhammad Hayat and another v. The State 1996 SCMR 1411; Naseer Ahmad and 5 others v. The State 1984 MLD 1461; Rehim Ullah Jan v. Kashif and another PLD 2008 SC 298; Muhammad Jameel v. Muhammad Akram and others 2009 SCMR 120; Muhammad Akram v. The State 2009 SCMR 230; Muhammad Luqman v. The State PLD 1970 SC 10 and Tariq Parvaiz v. The State 1995 SCMR 1345 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---F.I.R. ---Evidentiary value---F.I.R. has a very significant role to play, being a corner stone of the prosecution case to establish guilt of the accused involved in the crime---Any doubt in lodging of F.I.R. and commencement of investigation give rise to a benefit in favour of accused---F.I.R. lodged after conducting an inquiry loses its evidentiary value.

Iftikhar Hussain and others v. The State 2004 SCMR 1185 ref.

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

---S. 302(b)---Qatl-e-amd---Appreciation of evidence---Improvements---Effect---Improvements made by witnesses in their statements at the trial once found to be deliberate and dishonest cast serious doubt on their veracity making their testimony unreliable.

Syed Saeed Muhammad Shah and another v. The State 1995 SCMR 550; Amir Zaman v. Mahboob and others 1985 SCMR 685; Sher Dil alias Sher Gul and another v. The State 1973 PCr.LJ 802; Alam Khan v. The State 1987 PCr.LJ 1677 and Shahbaz Khan Jakhrani v. Lal Beg Jakhrani and others 1984 SCMR 42 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Injured witness, credibility of---Injuries on the person of an eye-witness would not raise any presumption that whatever he was telling is the truth.

Said Ahmad v. Zammured Hussain and 4 others 1981 SCMR 795; The State v. Muhammad Raja and 3 others PLD 2004 Pesh. 1; Muhammad Hayat and another v. The State 1996 SCMR 1411 and Naseer Ahmad and 5 others v. The State 1984 MLD 1461 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Abscondence---Nature and effect---Abscondence of accused can be taken as a corroborative piece of evidence---Abscondence alone is not sufficient to convict the accused, when ocular evidence has already been discarded, because no substantive piece of evidence is available for corroboration by the abscondence of accused.

Muhammad Jameel v. Muhammad Akram and others 2009 SCMR 120 ref.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt, grant of---Many circumstances creating doubt are not necessarily required for giving benefit of doubt of any accused---Single circumstance creating a reasonable doubt in a prudent mind about the guilt of accused would make him entitled to the benefit of doubt, not as a matter of grace and 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.

Barrister Salman Safdar for Appellants.

Shahid Bashir Chaudhry, D.P.-G. for the State.

Syed M. Shah for the Complainant.

Date of hearing : 3rd November, 2010.

2011 P Cr. L J 487

[Lahore]

Before Muhammad Yawar Ali, J

GULFAM AHMED---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, GUJRANWALA and 3 others---Respondents

Criminal Revision No. 1005 of 2010, heard on 1st December, 2010.

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

----S. 3---Prevention of illegal dispossession of property---Petition had been filed against order passed by the Trial Court, wherein a private complaint by the petitioner against respondents was dismissed---Petitioner/complainant had not given any material particulars of alleged act of dispossession which was essential---In the absence of material particulars, exact time and date of the alleged act of dispossession, no roving inquiry was to be conducted by the Trial Court to ascertain whether or not the complainant was dispossessed in terms of Illegal Dispossession Act, 2005---Complainant had already lodged an F.I.R. in respect of same occurrence---Once an F.I.R. was registered, then a complaint under S.3 of Illegal Dispossession Act, 2005, would not be competent in respect of the same occurrence---No evidence was on record that respondents had any characteristics or antecedents of a land grabbers---Spirit of Illegal Dispossession Act, 2005 was to proceed against persons who were professional land grabbers or members of land mafia, and not against a person, accused of a solitary act of illegal dispossession---Petition was dismissed.

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

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

----Preamble & S.3---Purpose and object of Illegal Dispossession Act, 2005---Disputes between rival parties were over possession of title of immovable property since time immemorial---Various remedies were available to a person who claimed that he had been illegally dispossessed from immovable property, both on the civil and criminal side---New class of persons had emerged in the society, who were referred to as Property grabbers' or in local parlance asQabza Group'---Illegal Dispossession Act, 2005 was enacted to take to task those persons who had antecedents of grabbing property and it was essential to differentiate between a case where a person was accused of a solitary act of illegal dispossession; and where a person proceeded against was a professional land grabber and was notorious for grabbing property as and when an opportunity presented itself---Spirit of Illegal Dispossession Act, 2005 was to proceed against persons who were professional land grabbers or members of land mafia; and not against a person accused of a solitary act of illegal dispossession---Petition was dismissed.

Mrs. Bushra Qamar for Petitioner.

Javaid Imran Ranjha for Respondents Nos. 2 and 3.

Mrs. Muqadus Tahira, Deputy Prosecutor-General, Punjab.

Date of hearing: 1st December, 2010.

2011 PCr. LJ 493

[Lahore]

Before Mansoor Akbar Kokab, J

FAROOQ ARSHAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 167-B of 2011, decided on 19th January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), Ss.2(d) & 3---Bail application, return of---Scheduled offence---Counsel for the complainant objected to the jurisdiction of High Court to deal with bail application, contending that as the mutter related to the Bank, Special Court constituted under S.3 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984, had the exclusive jurisdiction and High Court could not deal with the matter---Presentation of a forged cheque to a Bank and attempt to get it encashed, definitely would indulge the Bank to do the business of transaction of money from one account to another, thereby the Bank was involved which would mean that scheduled offence was committed or alleged to have been committed by a private person dealing with the business of a bank and would fall within the definition of S.2(d) of Offences in Respect of Banks (Special Courts) Ordinance, 1984---High Court lacked the jurisdiction to deal with bail application, which was returned---Applicant could adopt the appropriate remedy before appropriate court.

1986 PCr.LJ 567 ref.

Anees Abbas Sheikh for Petitioner.

Muhammad Akhlaq, D.P.-G. for the State.

Barrister Muhammad Ahmad Pansota and Mujahid Hussain Pansota for the Complainant.

Muhammad Razak Sindhu, Inspector with record.

2011 P Cr. L J 509

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD BAKHSH---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 13337-B of 2010, decided on 30th November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.419, 420, 468 & 471---Cheating by personation, forgery and using as genuine a forged document---Recalling of ad interim bail---Accused who was a Nikah Registrar, in connivance with his co-accused, prepared fictitious Nikahnama; and thereafter a habeas corpus petition was filed against the daughter of the complainant on the basis of said forged Nikahnama---During investigation, Nikahnama proved fictitious and accused was found guilty of the offence of preparing forged Nikahnama---Such was a matter of great disgrace; and daughter of complainant, complainant and his other family members had suffered a great mental agony and torture due to the unlawful act of the accused---Accused had committed a heinous offence and did not deserve to be granted bail before arrest as bail before arrest was an extraordinary relief which could not be extended in such like cases--Order whereby ad interim bail was granted to accused, was recalled, in circumstances.

Muhammad Muuzaffar Samoor for Petitioner.

Muhammad Ashraf Sagoo for the Complainant.

Noor Ahmed Bhatti, DPP and Abdul Razaq, A.S.-I. for the State.

2011 P Cr. L J 517

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwaarul Haq, JJ

PUNNAM KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 458-J of 2006 and Murder Reference No. 918 of 2004, heard on 11th November, 2010.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Incident was a broad daylight occurrence and in the promptly lodged F.I.R., all the necessary details of the occurrence had duly been mentioned by the complainant, who was a real daughter of the deceased---No previous enmity existed between the parties and accused was a single nominated accused in the F.I.R.---Prosecution, in order to prove the ocular account had examined real son of the deceased, who had no enmity with accused; and no reason was found for false implication of accused by said witness; his statement was not only straightforward, but coherent and consistent on all material aspects of the case and said statement was corroborated by the medical evidence and was further strengthened by the recovery of crime weapon, blood stained churri---Reports of Chemical Examiner and Serologist, were positive to prove that the churri so recovered at the instance of accused was stained with human blood---Mere relationship of the witness, was not sufficient to discredit his testimony---Non-production of other eye-witnesses was also not damaging for the prosecution, because, it was not the quantity, but the quality of evidence that mattered-Even in the case of a single accused nominated in the F.I.R., it was impossible that near kith and kin would let off the real culprit and would substitute some innocent person in a murder case---Prosecution, in circumstances, had succeeded in proving its case against accused beyond any reasonable doubt and no convincing reason was found to interfere with the finding of the Trial Court regarding the conviction of accused under S.302(b), P.P.C., which was quite in accordance with law and same was maintained.

Mandoos Khan v. The State 2003 SCMR 884 and Khalid Saif Ullah v. The State 2008 SCMR 688 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Quantum of sentence---Allegation in the F.I.R. was that accused gave a single churri blow on the person of deceased---Motive set out by the prosecution did not sound the reason because in the F.I.R. no motive was alleged by the prosecution---Complainant while appearing before the court as prosecution witness stated that accused was working as servant in the shop of the deceased and the deceased dismissed him from his service; and that accused on that grudge killed the deceased which suggested that no serious enmity existed between the parties, but in the circumstances, what happened just before the occurrence was shrouded in mystery---Reason of qatl-e-amd was introduced through dying declaration of the deceased by his daughter, which had lost its relevance, because no question regarding that dying declaration was put to accused in his statement under S.342, Cr.P.C.---Accused who was about eighteen years of age at the time of occurrence, in the peculiar circumstances of the case, deserved benefit of doubt to the extent of sentence one out of two provided under S.302(b), P.P.C.---While maintaining conviction of accused under S.302(b), P.P.C. his sentence of death was altered into imprisonment for life.

Mir Muhammad alias Miro v. The State 2009 SCMR 1188 and Ansar Ahmad Khan Barki v. The State and another 1993 SCMR 1660 rel.

Barrister Salman Safdar for Appellant.

Nemo for Complainant.

Ch. Muhammad Mustafa, Deputy Prosecutor-General for the State.

Date of hearing : 11th November, 2010.

2011 P Cr. L J 530

[Lahore]

Before Ch. Iftikhar Hussain, J

USMAN TARIQ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 11658-B of 2010, decided on 12th November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Bail, grant of---Further inquiry---Evidence of last seen, identification test, extra judicial confession of co-accused and recovery of crime weapon from accused, had come on the record after about two years of the alleged incident---Identification test was held, after more than. one month of arrest of accused and two years after alleged incident---Alleged recovery was also made after more than two years of the alleged incident---Question of evidentiary value of such piece of the prosecution evidence on record, was a matter to be more appropriately gone into at the trial---Mischief of subsection (2) of S.497, Cr.P.C., was amply attracted to case of accused requiring further inquiry into his guilt---Case for enlargement of accused on bail having been made out, he was admitted to bail, in circumstances.

Imran Aziz Qureshi for Petitioner.

Rana Muhammad Iqbal, District Public Prosecutor with Naeem Ahmed A.S.-I. with Police Record for the State.

Jameel Khan with Muhammad Hanif Rana for Respondent No.2.

2011 P Cr. L J 535

[Lahore]

Before Sardar Muhammad Shamim Khan, J

ASIM FAYYAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 155, 166 and Criminal Revision No. 88 of 1999, heard on 29th September, 2010.

Penal code (XLV of 1860)---

----S. 302(b)/34---Qatl-e-amd---Appreciation of evidence---F.I. R. was lodged promptly, but evidence of complainant had revealed that Investigating Officer, recorded his statement at the spot and thumb impression was also obtained on the said statement at the spot-F.I.R. was not lodged at the time as alleged by the prosecution, rather it was fabricated afterwards at the spot after deliberation and consultation---Veracity of F.I.R. in circumstances had become highly doubtful---Prosecution had failed to prove the motive against accused and identification of accused in the moonlight also had become doubtful---Ocular account given by the prosecution was falsified by the medical evidence---Opinion of doctor showed that injuries on the person of the deceased might be the result of single fire---Such opinion of doctor, was also contrary to the version of the prosecution story--Incident was an unseen occurrence---Complainant had also admitted enmity with so many persons during cross-examination, including enmity of a murder case; and in such situation as to who committed the murder of the deceased, was shrouded in mystery as accused had no motive to commit murder---Prosecution, in circumstances, had failed to prove the ocular account, which was in conflict with medical evidence---Recovery of double barrel gun from the possession of accused, was not corroborative piece of evidence against accused, as no empty was secured from the place of occurrence and there was no report of Forensic Science Laboratory, in that regard---Prosecution having failed to prove its case beyond reasonable doubt against accused, he was acquitted of the charges, in circumstances.

Muhammad Rahim v. The State 1973 PCr.LJ 904; Muhammad Arshad v. The State PLD 1995 SC 475 and Bashir alias Bashira and another v. The State and others 1995 SCMR 276 ref.

M. Nadeem Ahmad Kanjo for Appellant.

Tahir Mehmood for the Complainant.

Malik Riaz Ahmad Saghla, D.P.-G. for the State.

Date of hearing : 29th September, 2010.

2011 P Cr. L J 552

[Lahore]

Before Sh. Najam-ul-Hasan and Muhammad Anwaarul Haq, JJ

MUHAMMAD IDREES---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 296-J and Murder Reference No. 429 of 2005, heard on 30th September, 2010.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Case of prosecution rested upon evidence of extra judicial confession, exculpatory statement of co-accused, recovery of a Danda at the instance of accused and medical evidence---Extra judicial confession of accused was of best importance when both the witnesses of extra judicial confession had stated that Police did not record their statements during the investigation under S.161, Cr.P.C.---Evidence of a witness whose statement had not been recorded during the investigation, was not worth reliance---Even otherwise, extra judicial confession was a weak type of evidence and it must receive strong corroboration from other reliable evidence---Statement of co-accused was just an exculpatory statement and could not be made basis for the conviction of accused; and even was of little value against its maker---Not permissible under the law to treat the statement of co-accused as evidence against other accused---Medical evidence by itself was not an evidence to reflect as to who was responsible for causing injuries to the deceased; and it could not be used to the extent of corroboration of ocular account, if any, or to corroborate any other strong circumstance---Evidence of complainant was just based upon suspicion and suspicion however strong, could not take place of an evidence to be used for the conviction of accused--Recovery of Danda at the instance of accused was not blood stained and it was never sent to the Chemical Examiner for tracing of any blood stains on the same---Prosecution had failed to prove the case against accused and no legal, convincing or trustworthy evidence was available connecting accused with the crime alleged against him---Conviction and sentence of accused, were set aside, accused was acquitted of the charge and was set at liberty, in circumstances.

1996 MLD 1311; 1995 PCr.LJ 248; Tahir Javed v. The State 2009 SCMR 166; Zafar Iqbal and others v. The State 2006 SCMR 463 and State v. Asfandyar Wali and 2 others 1982 SCMR 321 ref.

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

----S. 161---Examination of witnesses by police---Evidence of a witness whose statement had not been recorded during the investigation, was not worth reliance.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Circumstantial evidence---All the circumstances, constituting a chain should create a combined effect towards the guilt of an accused; and it should be established beyond any shadow of doubt without missing of any link whatsoever---Finding of guilt must rest on unimpeachable evidence---Many dents in a criminal case were not necessary; and a single doubt in a prudent mind was sufficient to extend the benefit of doubt to accused---One tainted piece of evidence could not corroborate another tainted piece of evidence---Surmises, conjectures presumptions and assumptions, could not take place of trustworthy, cogent and reliable evidence in criminal cases, especially in the cases of capital sentence.

Muhammad Akram v. The State 2009 SCMR 230 ref.

Maqbool Aimad Qureshi, (Defence Counsel at State expense) for the Appellant.

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

Date of hearing: 30th September, 2010.

2011 P Cr. L J 561

[Lahore]

Before Sh. Ahmad Farooq, J

ZAFARULLAH KHAN---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION SUKHEKI and 3 others---Respondents

Writ Petition No. 11843 of 2003, heard on 8th June, 2010.

Penal Code (XLV of 1860)---

----Ss. 430/427/186/506---Constitution of Pakistan, Art.199---Mischief by injury to works of irrigation, mischief causing damage to amount of fifty rupees or upwards, obstructing public servant in discharge of public functions and criminal intimidation---Constitutional petition for quashing of F.I.R.---Petitioner had also prayed for staying the proceedings---Validity---High Court had no jurisdiction, whatsoever to take role of Investigating Agency and to quash the F.I.R., while exercising its constitutional powers under Art.199 of the Constitution unless and until exceptional circumstances existed---In the present case, prima facie, an offence was alleged to have been committed by petitioner; and determination of his guilt or otherwise totally depended upon the production of evidence during trial---Quashing of F.I.R. during investigation tantamounted to throttling investigation, which was not permissible in law---Trial against the petitioner was in progress; the best course available to petitioner was to approach the court of competent jurisdiction through an alternate remedy under S.249-A, Cr.P.C.---Impugned F.I.R. and the proceedings being conducted thereon could not be quashed as same were neither coram non judice nor being conducted in violation of the procedure or amounted to abuse of the process of law---Constitutional petition was dismissed.

M. Arif Chaudhry for Petitioner.

Jawad Hassan, Additional A.-G. and Abdul Khaliq for Respondents.

Date of hearing: 8th June, 2010.

2011 P Cr. L J 573

[Lahore]

Before Ch. Iftikhar Hussain and Sayyed Mazahar Ali Akbar Naqvi, JJ

ATTIQ-UR-REHMAN---Appellant

Versus

THE STATE---Respondent

C.S.R. No. 3-N and Criminal Appeal No. 690 of 2005, heard on 3rd November, 2010.

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

----S. 9(c)---Transporting narcotic drugs---Appreciation of evidence--Sentence, reduction in---Huge quantity of "Charas" and opium had been recovered from the secret cavities of the vehicle being driven by the accused---Prosecution evidence was consistent, unbiased and confidence inspiring---Recovery witnesses were not alleged to have any animosity against the accused---Report of Chemical Examiner in respect of recovered material was positive, which prima facie had connected the accused with the offence---Statements of police officials were as good as those of public witnesses, which inspired confidence---Defence evidence was not creditworthy---Conviction of accused was upheld accordingly---However, accused was the first offender having no criminal record of similar nature to his credit---Contraband "Charas" and opium were not so lethal as heroin---Sentence of death awarded to accused was reduced to imprisonment for life in circumstances, to meet the dictates of justice.

Rehmat Shah Afridi v. The State PLD 2004 Lah. 829; Muhammad Tariq v. The State 2009 SCMR 1220 and Muhammad Hashim v. The State PLD 2004 SC 856 ref.

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

----S. 9(c)---Transporting etc. of narcotic drugs---Sentence---Mitigating circumstances suggested.

Muhammad Tariq v. The State 2009 SCMR 1220 ref.

Naveed Afzal Basra for Appellant.

Tariq Mehmood Sipra, Special Prosecutor for the State.

Date of hearing: 3rd November, 2010.

2011PCr.LJ 589

[Lahore]

Before Shahid Hameed Dar, J

REHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1954-B of 2010, decided on 1st December, 2010.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/365-B/201/34---Qatl­-e-amd, abduction, causing disappearance of evidence of offence---Bail, grant of---Further inquiry---Complainant had expressed his strong belief in the F.I.R. as to the culpability of accused in the case, but he failed to hint at any source of his information, either in the F.I.R. or during the course of investigation--No witness had been recorded by the Police during investigation to support the plea of the complainant as to the implication of accused in the gruesome incident---Doubt, howsoever strong could not take place of an admissible piece of evidence, nor could it be equated with the evidence, either direct or circumstantial---Notwithstanding abscondence, accused could be found entitled to grant of bail, if his case, otherwise fell within the scope of further inquiry as contemplated under S.497(2), Cr.P. C. ---Commencement of the trial, could not be relevant at bail stage, nor it 'could be considered as an impediment for grant of bail to accused---Accused had been found not involved in the occurrence during the course of investigation and stood named in column No.2 of the challan---Prima facie, reasonable grounds were available to believe that case of accused, called for further inquiry into his guilt within the meaning of S.497(2), Cr.P.C.---Accused, was admitted to bail, in circumstances.

Mithu Pitafi v. The State 2009 SCMR 299; Muhammad Muqeem alias Muqeem v. The State 2010 PCr.LJ 1479; Muhammad Sadiq v. The State and another 2010 YLR 3070; Imam Bux v. The State 2009 PCr.LJ 476; Awal Gul v. Zawar Khan and others PLD 1985 SC 402; Sher Ali alias Sheri v. The State 1998 SCMR 190; Meraj v. Gohar Ali and another 2005 PCr.LJ 1269; Muhammad Asim v. The State 2010 PCr.LJ 771 and Muhammad Ismail v. Muhammad Rafiqu and another PLD 1989 SC 585 ref.

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

----Ss. 497(2), 87 & 512---Bail, grant of---Abscondence of accused---Effect----Absconder certainly would lose some of his normal rights guaranteed both under the substantive and the procedural law, but, evidence qua the abscondence of an accused was always corroboratory in nature---Even an innocent person, out of fear of the Police or that of being caught, could run away to save his life instead of facing the situation in a manlike manner---Notwithstanding the abscondence, an accused could be found entitled to grant of bail, if his case otherwise, fell within the scope of further inquiry as contemplated under S.497(2), Cr. P. C.

Majid Ahmad Abbasi and Ch. Khurram Tasadduq for Petitioner.

Raja Ikram Amin Minhas for the Complainant.

Malik Riaz Ahmad Saghla, D.P.-G. with Latif, S.-I. for the State.

2011 PCr.LJ 597

[Lahore]

Before Ijaz Ahmad Chaudhry, J

IRFAN AHMAD---Petitioner

Versus

S.H.O. and 6 others---Respondents

Criminal Miscellaneous No. 1864-H of 2010, decided on 23rd November, 2010.

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

----S. 491---Habeas corpus petition---Sole purpose for filing the petition was to have custody of petitioner's (alleged) wife through the process of the court---Question for determination by High Court, was that as to whether the custody of the alleged detenue with her parents was illegal or improper---If after consideration of the facts and law on the subject, High Court would come to the conclusion that the detenue had actually been confined by her parents in an illegal and improper manner, then the petition would be maintainable, otherwise petition would be rendered as not maintainable---Petitioner in the present case was claiming that his wife was being illegally detained by respondents who were father, mother and brothers of the detenue---Parents of children were their natural guardians and the custody of the children by their parents could not be termed illegal or improper---Ingredients for invoking the provisions of S.491, Cr.P.C., were not available in the case.

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

----S. 491---Habeas corpus petition---High Court observed that the trend of run away marriages was severely penetrating in the society---Courts did not function in vacuum and must take due notice of social and moral environments prevailing in the community---Tendency on part of some young men to abuse provisions of S.491, Cr.P.C. in furtherance of their illicit love affairs should be curbed---Alleged detenue, in the present case, had taken birth in the house of her parents where she was grown up and till her marriage, her custody with her parents remained lawful, then after her entering into a marital tie with the petitioner as a result of their illicit love affair, how could her custody with her parents be termed as illegal or improper---Every person in the society; rich or poor, had respect in the vicinity and in the event of raid conducted by the bailiff deputed by High Court who normally raid the houses of parents for recovery of the girls with the aid of Police of relevant Police Station, whole of the family was disgraced; and dignity and honour of that family was destroyed by such act---In order to save the honour and dignity of such like families, High Court should not be party to such acts of disgracing the honour and dignity of the affected families---High Court, in circumstances, declined to depute bailiff or any other process for recovery of alleged detenue; and refused to declare marriage of the petitioner with the detenue, which was the result of love affair, to have been solemnized in accordance with the dictates of Islam---High Court observed that law of the land had established Family Court for the resolution of such like family disputes---In presence of such like forum, High Court declined to exercise powers under S.491, Cr.P. C.

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

M. Javaid Iqbal Qureshi for Petitioner.

2011 P Cr. L J 604

[Lahore]

Before Ijaz Ahmad Chaudhry, J

IRFAN HAIDER---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Revision No. 1074 of 2010, heard on 25th November, 2010.

Penal Code (XLV of 1860)---

----Ss. 302/34/201---Qatl-e-amd and causing disappearance, of evidence of offence---Determination of age of accused---Counsel for accused produced School Leaving Certificate and Form-B issued by NADRA to prove that accused at the time of occurrence was below 18 years of age, but said documents could not find favour and the Trial Court, instead had wholly relied upon medical examination of accused---Both School Leaving Certificate and Form-B, produced by the counsel for the petitioner were in consonance with regard to the date of birth of the petitioner/accused---Opinion of Medical Board though should be taken even in presence of unimpeachable documentary evidence, but possibility of variance of one year on both sides, could not be ruled out of consideration---Opinion of Medical Board would provide only a clue about the age of accused, but it could not provide a conclusive age so as to be given preference over the documentary evidence---Medical opinion regarding the age of an accused was to be. believed where documentary evidence was missing---Documents relied upon by the petitioner/accused were not properly probed into by making a discrete inquiry or summoning the record from the concerned departments; it would be more appropriate, if the documents produced by accused would be re-examined by conducting a discrete inquiry by the Trial Court to determine accused to be juvenile or otherwise---Impugned order was set aside and case was remanded to the Trial Court to decide afresh after making an inquiry with regard to the School Leaving Certificate as well as Form-B issued by NADRA.

Muhammad Akram v. Muhammad Haleem 2000 PCr.LJ 633; Hassan Zafar v. The State 2001 PCr.LJ 1939 and 2009 SCMR 1073 ref.

Imtiaz Hussain Khan Baloch for Petitioner.

Abdus Samad, Additional Prosecutor-General for the State.

Hafiz Khalil Ahmad for Respondents Nos. 2 and 3.

Date of hearing: 25th November, 2010.

2011 P Cr. L J 609

[Lahore]

Before Ch. Muhammad Tariq, J

ADEEL IQBAL---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 12711-B of 2010, decided on 30th November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 109, 148 & 149---Qatl-e-amd and attempt to commit qatl-e-amd---Bail, refusal of---Contents of F.I.R., showed that accused fired at injured with .12 bore gun which hit him on his left arm---Place of occurrence was baithak of the complainant where accused along with his co-accused, attacked on the complainant party; and as a result one person died and two were injured--Accused was well-nominated in the F.I.R., with specific role---Contents of F.I.R. were in line with the medico-legal report---Accused remained fugitive from law for more than three months---Accused had committed a heinous offence and the prosecution witnesses had implicated him in their statements under S.161, Cr.P.C. recorded by the Police during investigation---No case of further inquiry or grant of bail having been made out, bail petition of accused was dismissed, in circumstances.

2008 SCMR 1436 ref.

Abdul Khaliq Safrani for Petitioner.

Noor Ahmed Bhatti, DPP and Ghulam Rasool, S.-I. for the State.

Javaid Iqbal Sheikh for the Complainant.

2011 P Cr. L J 615

[Lahore]

Before Sh. Najam-ul-Hasan, J

MUHAMMAD RIAZ alias DINGA and others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 14311-B of 2010, decided on 22nd December, 2010.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.354/506/34---Assault or criminal force to woman with intent to outrage her modesty, criminal intimidation---Ad interim pre-arrest bail, confirmation of---Allegation against accused persons was a simple threat and no consequence of the same had been mentioned in the P.LR.---Threat simpliciter did not come within the definition of criminal intimidation and was not punishable under S.506, P.P.C.-Offence under S.354, P.P.C. was bailable---Accused persons had joined the investigation and were no more required to the Police---Nothing had been recovered from accused persons---It was to be determined after recording of evidence as to whether accused were involved in a non-bailable offence or not---No useful purpose would be served by sending accused behind the bars---Matter related to a mutual dispute between the parties---Complainant had come to the house of accused and possibility of false implication of accused by the complainant with mala fide intention, could not be ruled out-Ad interim pre-arrest bail already granted to accused persons, stood confirmed, in circumstances.

Rana Muhammad Suleman for Petitioners.

Muhammad Ishaq, Deputy Prosecutor-General with Muhammad Akram, A.S.-I. for the State.

2011 P Cr. L J 628

[Lahore]

Before Ch. Muhammad Tariq and Muhammad Anwar Bhaur, JJ

ABID ALI---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeals Nos. 339-J, 2105 of 2004, Criminal Revision No.1059 of 2004 and Murder Reference No. 901 of 2004, heard on 7th June, 2010.

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

----S. 302(b)/34---Qatl-e-amd---Appreciation of evidence---Occurrence had taken place in daylight---Promptly lodged F.I.R. had eliminated the possibility of any consultation or premeditation---Accused was nominated in the F.I.R. with a specific role played in the incident---Ocular account was consistent and in line with medical evidence---Occurrence and place of occurrence were admitted by the accused---Specific plea taken by accused about the complainant party having acted in aggression in the occurrence, had not been substantiated by producing any evidence by him, nor he had appeared as his own witness on oath under S. 340(2), Cr.P.C.---Two eye-witnesses were independent witnesses of the occurrence---Dagger recovered on the pointation of accused was found to be stained with human blood by Serologist---Weakness or non-existence of motive was not fatal to the prosecution case in the presence of proved and corroborated ocular testimony---Conviction and sentence of death of accused were upheld in circumstances.

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

----S. 302(b)/34---Qatl-e-amd---Appreciation of evidence---Motive---Weakness or non-existence of motive---Significance---Weakness or non-existence of motive is not fatal to prosecution case, particularly when the ocular account is proved and has been corroborated by medical and other evidence.

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

----S. 334---Criminal Procedure Code (V of 1898), S. 417(2-A)---"Itlaf­i-udw "---Appeal against acquittal---Dagger recovered at the instance of accused was found to be stained with human blood by the Serologist---Ocular testimony was unanimous that accused had inflicted a dagger blow on the right arm of the prosecution witness, as a result whereof his right arm had been amputated from upper side of the elbow---Medical evidence had corroborated such fact---Trial Court had failed to appreciate the unrebutted evidence on record against the accused---Acquittal of accused by Trial Court was consequently set aside and he was convicted under S. 334, P.P.C. and sentenced to ten years' R.I. with Arsh equivalent to one half of Diyat in circumstances.

Ch. Zulfiqar Ali Dhaddi for Appellant.

Ch. Nazir Ahmed Kamboh for Respondent.

M. Alam, Additional Prosecutor-General for the State.

Date of hearing: 7th June, 2010.

2011 P Cr. L J 641

[Lahore]

Before Sagheer Ahmed Qadri, J

ALI ASGHAR---Petitioner

Versus

THE STATE---Respondents

Criminal Revision No. 253 of 2010, heard on 1st December, 2010.

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

----Ss. 3(b)(iii) & 13---Possession of arms--Appreciation of evidence---Complainant/Police Officer had alleged that during investigation of case registered against petitioner/accused under Ss.302/324/34, P.P. C., on pointation of accused a Chhuri was recovered from him in presence of witnesses---Complainant in his cross-examination, however, had admitted that Chhuri allegedly recovered from accused was of ordinary pattern available in the market---According to definition of S.3(b)(iii) of West Pakistan Arms Ordinance, 1965, no doubt knives with blades of 4 inches or more would come under the definition of "arms", but kitchen knives or knives used in good faith for carrying on of a profession, had specifically been excluded from the definition---Pattern of Chhuri allegedly recovered being trend of ordinary kitchen knife/chhuri normally used in every house, would not fall within the definition of "arms", which could not be possessed or kept by a person, until and unless a licence was issued by the competent authority, and was punishable under S.13 of West Pakistan Arms Ordinance, 1965---Where the F.I.R. was not proved, sole recovery witness had contradicted the statement of the complainant; and above all the recovered Chhuri did not fall within the definition of "arms", conviction and sentence recorded by the Trial Court, upheld by Appellate Court, were not sustainable in the eyes of law---Impugned conviction and sentence of the petitioner passed by the courts below, were set aside; and accused was acquitted of the charge and was released from jail, in circumstances.

Tahir Raheel Awan for Petitioner.

Ch. Muhammad Waheed Khan, Deputy Prosecutor-General for the State.

Date of hearing: 1st December, 2010.

2011 P Cr. L J 652

[Lahore]

Before Sardar Muhammad Shamim Khan and Sardar Tariq Masood, JJ

SHAHID HUSSAIN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 409, 434 of 2005 and Murder Reference No. 380 of 2005, heard on 2nd June, 2010.

Penal Code (XLV of 1860)---

----Ss. 302(b)/34 & 302/109---Qatl-e-amd, abetment---Appreciation of evidence---Benefit of doubt---Complainant had created a false motive to involve the accused in the case---Prosecution had withheld the independent eye-witnesses of the locality regarding the occurrence---Ocular testimony was in conflict with medical evidence---Eye-witnesses had improved their statements at the trial qua the injuries caused by the accused on the deceased---F.I.R. had been chalked out after observing the injuries on the person of the deceased---Recovery of Kalashnikov from accused was inconsequential in the absence of report of Forensic Science Laboratory---Positive report of Forensic Science Laboratory in respect of the pistol recovered from other accused, was of no avail to prosecution, when prosecution witnesses were not found to be present at the time of occurrence---Even otherwise, recovery could not be used as a corroborative piece of evidence for disbelieving main evidence---Accused charged with the abetment of murder was not shown by evidence to have instigated, conspired or aided other accused in any manner to murder the deceased, which. were the essential ingredients for conviction under S.109, P.P.C. read with S. 302(b)134, P.P.C.---Occurrence was unseen---Deceased might have been killed by other persons having serious enmity with him---Accused were acquitted on benefit of doubt in circumstances.

Qazi Sardar-ud-Din Alvi and Sardar Zafar Ahmad Khan Lound for Appellants.

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

Sardar Tariq Sher Khan for the Complainant.

Date of hearing: 2nd June, 2010.

2011 P Cr. L J 666

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

Mst. ZAIB-UN-NISA---Petitioner

Versus

REHMAT and 2 others---Respondents

Criminal Revision No. 742 of 2010, decided on 15th November, 2010.

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

----S. 3---Trial Court earlier while dismissing the application of the accused respondents filed under S. 265-K, Cr.P.C. had specifically observed that the matter required recording of evidence, but subsequently without recording a single piece of evidence it had acquitted the accused on another application filed by the accused under S. 265-K, Cr.P.C. vide impugned order---Said action of Trial Court was absolutely illegal, arbitrary, superficial, based on misconception of law and facts and quite contrary to its earlier order---Impugned order of acquittal of accused was consequently, set aside and the case was remanded to Trial Court with the direction to proceed with the trial and finalize the same after recording evidence of both sides---Revision petition was accepted accordingly, however, if subsequently at any stage sufficient grounds attracted the provision of S. 265-K, Cr.P.C., trial Court might act strictly in accordance with law without being prejudiced by the observation made by High Court in its order.

Syed Manzoor Hussain Shah v. Syed Agha Husain Naqvi and another 1983 SCMR 775 ref.

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

----S. 439---Revision---Scope---Revisional jurisdiction of High Court is very wide and it may be exercised whenever facts calling for its exercise are brought to the notice of the Court.

Syed Manzoor Hussain Shah v. Syed Agha Husain Naqvi and another 1983 SCMR 775 ref.

Ikram-ud-Din Khan for Petitioner.

Mian Muhammad Awais Mazhar, Deputy Prosecutor-General Punjab.

Muhammad Sharif for Respondents Nos. 1 and 2.

2011 P Cr. L J 674

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD JAVED SAGAR---Petitioner

Versus

STATION HOUSE OFFICER and 2 others---Respondents

Criminal Miscellaneous No. 1828-H of 2010, decided on 12th November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Petitioner had sought the recovery of his wife from illegal and improper custody of her real brother---Alleged detenue, wife of the petitioner, since her birth had been living in the house of her parents, where she was grown up and her custody thereat was never dubbed as illegal, but strangely enough as soon as she contracted secret marriage in furtherance of her illicit love affair with the petitioner, how her custody with her parents or brother would become illegal and improper---Parents being the natural guardians of their children, their custody with the parents could not be termed illegal or improper---Courts must take due notice of social and moral environments prevailing in the community and curb the tendency on the part of some young men to abuse the provisions of S. 491, Cr.P.C. in furtherance of their illicit love affairs---As such the provisions of S.491, Cr.P. C. were not available to the petitioner for recovery of the alleged detenue from the custody of her brother---Additionally, in the event of raid conducted by the Bailiff of the Court to recover the girl from the house of her parents with the aid of police, honour and dignity of the parents in the family and the vicinity, would stand destroyed---Even otherwise Family Courts were present in the country for resolution of such like family disputes---Petition was dismissed in limine in circumstances.

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

Muhammad Irfan Nawaz for Petitioner.

2011 P Cr. L J 693

[Lahore]

Before Sardar Muhammad Shamim Khan, J

Hafiz IQBAL AHMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 3823/B of 2010, decided on 21st October, 2010.

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

----S. 498---Penal Code (XLV of 1860), Ss.337-A(i)(ii) & 337-L(2)---Hurt causing Shajjah-i-Khafifa, Shajjah-i-Mudiha and other hurts---Bail before arrest, refusal of---Allegation against accused was that he while armed with pistol, inflicted butt blow on the back side of lipid of the complainant---Injury attributed to accused cane within the ambit of S.337-A(ii), P.P.C.---Recovery of pistol was yet to be made from the accused---Bail petition was dismissed and ad interim pre-arrest bail granted to him was recalled, in circumstances.

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

----S. 498---Penal Code (XLV of 1860), Ss.337-A(i)(ii) & 337-L(2)---Hurt causing Shajjah-i-Khafifa, Shajjah-i-Mudiha and other hurts---Bail before arrest, grant of---No specific allegation had been levelled against co-accused, there was general allegation against him that he, along with one unknown person caused injuries with Saria blow on the person of the complainant---Medical report had revealed that injured/complainant received five injuries and out of those injuries one was attributed to main accused, whereas other four injuries attributed to said co-accused and one unknown person, were simple in nature; and fell within the purview of bailable offences---Ad interim pre-arrest bail already granted to co-accused, was confirmed, in circumstances.

Sh. Muhammad Sarfraz Hussain for Petitioner.

Ch. Ayyaz Muhammad Khan for the Complainant.

Hassan Mahmood Khan Tareen, D.P.-G., Mahmood Iqbal, A.S.-I. with record for the State.

Hafiz Iqbal Ahmad and Ishtiaq Ahmad, petitioners on interim bail.

2011 P Cr. L J 701

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

UMAR SHAHID---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 337 and Murder Reference No. 217 of 2004, heard on 17th March, 2010.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Presence of complainant eye-witness in his house at the time of occurrence, being head of the family, was quite natural, before whose eyes his son had been killed and he had immediately reported the matter to the police specifying that the accused had murdered his son by firing---Father before whom his real young son aged 17/18 years had been done to death, would never let off the real killer by substituting him with an innocent person---Natural, trustworthy and confidence inspiring ocular testimony of the complainant was also corroborated by medical evidence---Solitary statement of a witness, closely related to the deceased, of the aforesaid nature could be made a basis for conviction of the accused on a capital charge, because quality and not the quantity of evidence always weighs with the court---Defence plea of false implication due to political rivalry was neither probable nor the same was supported by the evidence---Conviction of accused was upheld under S. 302(b), P.P. C. accordingly; however, failure of prosecution to prove its specific motive, mystery regarding the immediate cause of incident and only one shot fired by the accused, had constituted a mitigating aspect for awarding him lesser punishment---Sentence of death of accused was converted into imprisonment for life in circumstances.

Allah Bakhsh v. Shammi and others PLD 1980 SC 225; Farooq Khan v. The State 2008 SCMR 917; Mali v. The State 1969 SCMR 76; Muhammad Ashraf v. The State 1971 SCMR 350; Muhammad Siddique alias Ashraf alias Achhi and 3 others v. The State 1971 SCMR 659; Muhammad Mansha v. The State 2001 SCMR 199; Nazir v. The State PLD 1962 SC 269; Shehruddin v. Allhaj Rakhio 1989 SCMR 1461; Noor Muhammad v. The State and another 2010 SCMR 97; Hakim Ali v. The State 1971 SCMR 432; Muhammad Ayaz Khan v. Murtaza and others 2008 SCMR 984 and Mirza Zaheer Ahmad and another v. State and others 2005 SCMR 1164 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Principle---Testimony of a single witness---Value---Conviction even in a murder case can be based on the testimony of a single witness, if the same is found reliable by the court, as the emphasis is on the quality of evidence and not on its quantity.

Allah Bakhsh v. Shammi and others PLD 1980 SC 225; Farooq Khan v. The State 2008 SCMR 917; Mali v. The State 1969 SCMR 76; Muhammad Ashraf v. The State 1971 SCMR 350; Muhammad Siddique alias Ashraf alias Achhi and 3 others v. The State 1971 SCMR 659 and Muhammad Mansha v. The State 2001 SCMR 199 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Interested witness---Utility and credibility---Statement of an interested witness can be taken into consideration for corroboration and his mere relationship with the deceased is not sufficient to discredit him, particularly when he has no motive for false implication of accused.

Nazir v. the State PLD 1962 SC 269 and Shehruddin v. Alhaj Rakhio 1989 SCMR 1461 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Motive---Principle---Prosecution is not bound to establish motive in every case, but once it sets up a motive and thereafter fails to establish the same, then it must suffer the consequences itself and not the defence.

Noor Muhammad v. The State and another 2010 SCMR 97 and Hakim Ali v. The State 1971 SCMR 432 ref.

Kh. Basit Waheed, Arshad Nazir Mirza and Zulfiqar Ali for Appellant.

M.M. Alam Chaudhry, Additional Prosecutor-General Punjab for Respondents.

Date of hearing: 17th March, 2010.

2011 P Cr. L J 713

[Lahore]

Before Ijaz Ahmad Chaudhry C.J. and Mansoor Akboar Kokab, J

FALAK SHER and 3 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 871 of 2005, heard on 17th January, 2011.

Penal Code (XLV of 1860)---

---Ss. 302(b), 324, 393, 394, 34, 337-F(v), 337-F(iii) & 337-A(i)-Criminal Procedure Code (V of 1898), S.345---Qatl-e-amd, attempt to commit qatl-e-amd, attempt to commit robbery and voluntarily causing hurt in committing robbery---Appreciation of evidence---Compromise---During pendency of appeal, an application under S.345, Cr.P.C., had been filed on behalf of accused persons seeking their 'acquittal on the basis of compromise arrived at between the parties---Report submitted by the Sessions Judge with regard to the genuisneness of said compromise had revealed that deceased was unmarried at the time of occurrence and was survived by her father and mother, who had forgiven the accused in the name of Almighty Allah without receiving any "badal-i-sulah", waived their right of "Qisas and "Diyat "; and had no objection, if accused were acquitted of the charge on the basis of compromise---Injured persons had also stated that party had waived their right of Daman imposed by the Trial Court---Sessions Judge in the end of report, had shown his satisfaction with regard to genuineness of the compromise---State Counsel and counsel for complainant submitted that they had no objection, if the permission to compound the offences, which were compoundable was granted---Regarding offences which were not compoundable, they had maintained that the matter of reduction of sentence., was the pure discretion of the court---Permission was granted to compound the offences which were compoundable; however, accrued, must have served out the minimum punishment provided under Ss.393 & 394, P.P.C. as benefit of S.382-B, Cr.P.C. was also extended to them---As parties had entered into compromise to burry their hatches and wanted to live a peaceful life in future, taking a lenient view, the sentences which accused had already undergone, would be sufficient to meet the ends of justice---Conviction of accused persons under Ss. 393 & 394, P.P.C., was maintained and their sentences were reduced to the period already undergone by them.

Shaukat Rafique Bajwa and Munir Ahmad Bhatti for Appellants.

Tariq Javed, D.D.P.P. for the State.

Falak Sher Nagra for the Complainant.

Date of hearing: 17th January, 2011.

2011 P Cr. L J 723

[Lahore]

Before Ch. Iftikhar Hussain, J

GHULAM MUSTAFA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 319 of 2006, heard on 22nd June, 2010.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Complainant himself had not seen the occurrence, but on reaching there was told by some people that accused had fired at his deceased brother, which was an heresay evidence---Prior to the occurrence complainant had not seen any of the accused, nor he had any knowledge of their whereabouts, hence giving their names and complete details of their identity by him in the F.I.R. has reflected doubt on the prosecutor story and affirmed possibility of consultation, deliberation and preliminary inquiry into the matter before lodging of F.LR.---Same appeared to be the position of the other eye-witness being the son of the complainant, whose testimony was not corroborated by an independent source of unimpeachable character---Absence of any enmity between the said so called eye-witnesses and the accused alone could not stamp their evidence with truth in the given circumstances---Medical evidence had not corroborated the ocular testimony---Recovery of pistol, crime weapon, after eighteen days of the incident from road side in a partly populated area, accessible to general public, was not acceptable---Prosecution case was full of doubts---Benefit of every doubt, howsoever slight, had to go to the accused---Accused was acquitted in circumstances.

Malik Muhammad Akbar v. State 1995 SCMR 693' ref.

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

----S. 103---Penal code (XLV of 1860), S. 302(b)---Qatl-e-amd---Recovery---Recovery of pistol, crime weapon, after eighteen days of the incident from road side in a partly populated area, accessible to general public, was not acceptable.

(c) Criminal trial---

----Benefit of doubt, extension of---Principles---Benefit of every doubt, howsoever slight, has to be given to the accused.

Salim Khan Chechi for Appellant.

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

Date of hearing: 22nd June, 2010.

2011 P Cr. L J 737

[Lahore]

Before Muhammad Anwaarul Haq and Manzoor Ahmad Malik, JJ

MUHAMMAD RAMZAN and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeals Nos. 1447, 1676 of 2005, Criminal Revision No. 816 of 2005 and Murder Reference No. 03 of 2006, heard on 8th February, 2011.

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

---S. 302(b)---Criminal Procedure Code (V of 1898), S. 154---F.I.R., delay in registration---Effect---First priority of complainant's side was to save life of injured instead of reporting matter to police---About two hours delay in reporting the matter to police, in the circumstances, was not of much importance.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Related witnesses---Recovery and motive---Sentence, reduction in---Accused was convicted by Trial Court under S. 302(b), P.P.C. and was sentenced to death---Validity---Mere relationship of complainant and eye-witness with deceased was not a ground to disbelieve their evidence, which was confidence inspiring on all material aspects of case and especially when there was no deep-rooted enmity between complainant party and accused---Mere relationship of witnesses was not a ground itself to discredit their testimony---No independent witness in respect of motive was examined and Trial Court had rightly disbelieved the motive part---Even if motive and recovery of Churri (weapon of offence) were excluded from consideration, there remained sufficient evidence in the form of ocular account fully supported by medical evidence---High Court maintained conviction of accused under S.302(b), P.P.C.---Accused deserved benefit of doubt to the extent of his sentence one out of two provided under S. 302(b), P.P.C.---Accused was entitled for benefit of doubt as an extenuating circumstance while deciding his question of sentence---High Court altered sentence of accused from death to imprisonment for life---Appeal was decided accordingly.

Haji v. The State 2010 SCMR 650; Allah Dad and another v. The State 1995 SCMR 142; Shehruddin v. Allah Rakhio and 5 others 1989 SCMR 1461; Mir Muhammad alias Miro v. The State 2009 SCMR 1188 and Ansar Ahmad Khan Barki v. The State and another 1993 SCMR 1660 rel.

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

----S. 417---Appeal against acquittal---Principle---When accused person is acquitted by Trial Court, he enjoys double presumption of innocence and to dislodge that presumption very strong and convincing reasons are required.

Haji Amanullah v. Munir Ahmad and other 2010 SCMR 222 ref.

Muhammad Farooq Bedaar for Appellants (in Criminal Appeals Nos. 1447, 1676 of 2005).

Ch. Muhammad Mustafa, Deputy Prosecutor-General for the State.

Muhammad Akram Javed for the Complainant.

Date of hearing: 8th February, 2011.

2011 P Cr. L J 752

[Lahore]

Before Hassan Raza Pasha, J

ASAD ALI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 657 of 2010, decided on 4th May, 2010.

Criminal Procedure Code (V of 1898)---

---S. 497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, refusal of---Accused who had not denied the issuance of cheques in question, had stated that the cheques were given in a business transaction as a guarantee; and major part of amount had been paid, but no proof of payment or any business transaction had been brought on record---Cheques were dishonoured due to lack of funds and accused knowingly that he had no balance in the account, issued the cheques, so had defrauded the complainant---Offence with which accused had been charged, though did not fall within the prohibitory clause of S.497, Cr.P. C., but the grant of bail to accused in every case not hit by the prohibitory clause, was not a rule of universal application, because each case had to be dealt with on its own facts and circumstances---Accused being not entitled to grant of bail, his bail petition was dismissed, in circumstances.

Muhammad Tanveer Chaudhry for Petitioner.

Kh. Sohail Iqbal, D.P.-G. and Khaleeq Ahmad, A.S.-I for the State.

2011 PCr. LJ 759

[Lahore]

Before Ch. Iftikhar Hussain and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD ASLAM---Appellant

Versus

THE STATE---Respondent

C.S.R. No. 2-N and Criminal Appeal No. 272 of 2004, heard on 29th November, 2010.

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

----S. 9(c)---Possession of narcotic drugs---Appreciation of evidence---Recovery of narcotic drugs from the possession of accused had been proved by cogent and confidence-inspiring evidence---Report of Chemical Examiner qua the said narcotics was positive---No case had been filed earlier by the accused or his father against the prosecution witnesses of the case---Accused was involved in 21 cases of the similar nature---Accused involved in such like cases were not only defaming the image of the country, rather were making the young generation of the country addict of narcotic drugs and they deserved to be dealt with iron hands---Conviction and sentence of death of accused were affirmed in circumstances.

Rana Ejaz Ahmed Khan for Appellant.

Ch. Karamat Ali, Deputy Prosecutor-General, Punjab for the State.

Date of hearing: 29th November, 2010.

2011 P Cr. L J 766

[Lahore]

Before Sh. Najam-ul-Hasan and Manzoor Ahmad Malik, JJ

MUHAMMAD ARSHAD and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 25-J of 2006 and Murder Reference No. 186 of 2005, heard on 29th July, 2010.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Extenuating circumstances---Sentence, reduction in---F.I.R. containing all the details of the incident had been lodged without any delay---Eye­witnesses had reasonably explained their presence at the scene of occurrence and had corroborated each other---Relationship of ocular witnesses with the deceased would not blemish their testimony, if the same otherwise inspired confidence---Medical evidence had also supported the prosecution version---Motive for the occurrence was not disputed by the accused---Conviction of accused, therefore, was maintained--However, five persons had been implicated in the case for the single murder, amongst whom two had already been acquitted by Trial Court on the same evidence, two were before High Court as appellants and the fifth was an absconder---Complainant had changed his statement at the trial in view of medical evidence---Accused were of young age at the time of occurrence---One co-accused who was also attributed fire shots on the body of the deceased was still at large---Accused had fazed the agony of protracted trial and appeal for the last more than ten years---All these were the extenuating circumstances in favour of accused---Sentence of death of each 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-Zaman 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)---

----S. 302(b)---Qatl-e-amd---Sentence---Where Qisas is not enforceable, court in a case of qatl-e-amd can award the accused the sentence of death or imprisonment for life by way of Tazir keeping in view the circumstances of the case.

Iftikharul Hassan v. Israr Bashir and another PLD 2007 SC 111; Ghulam Muretaza v. State 2004 SCMR 4; Faqir Ullah v. Khalil-uz-Zaman 1999 SCMR 2203; Muhammad Akram v. State 2003 SCMR 855 and Abdus Salam v. State 2000 SCMR 338 ref.

Ijaz Ahmad Bajwa for Appellants.

M.M. Alam Chaudhry, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 29th July, 2010.

2011 P Cr. L J 778

[Lahore]

Before Shahid Hameed Dar and Waqar Hassan Mir, JJ

HASSAN ASKARI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 285-J of 2005 and Murder Reference No. 807 of 2005, decided on 9th December, 2010.

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

----S. 302(b)---Qatl-e-amd---Witness---Credibility---Credibility of a witness depends upon his knowledge of the facts to which he testifies; his disinterestedness; his integrity; his veracity, and his being bound to speak the truth by such an oath as he deems obligatory, or by such affirmation or declaration as may by law be substituted for an oath---Proportioned to these principles is the degree of credit the testimony of witness deserves from the court.

Archbold Criminal Pleading,-Evidence and Practice, thirty-five Edition by Butler and Garsis para 1347 ref.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Arts. 132 & 133---Qatl­-e-amd---Appreciation of evidence---Principle---Any portion of the statement of a witness having not been challenged during cross-examination shall be deemed to have been admitted by the accused.

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

----S. 342---Penal Code (XLV of 1860), S. 302(b)---Qatl-e-amd---Examination of accused---Every bit of incriminating evidence must be put to the accused in his examination under S. 342, Cr.P.C. so as to seek his reply---Failure to do so shall exempt the accused from any penal action against him in respect of the missed piece of evidence.

Noor Muhammad v. The State 2010 SCMR 97; Abdul Wahab v. The Crown PLD 1955 FC 88; The State v. Gohar Rehman and another 1969 SCMR 460; Sheral alias Slier Muhammad v. The State 1999 SCMR 697 and Majnoo v. The State 1984 PCr.LJ 2069 rel.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Eye-witnesses had plausibly explained their presence at the scene of occurrence---Ocular testimony was truthful and credible and was corroborated by the site plan and medical evidence---Independent persons for fear of reprisal would usually hesitate to depose against the perpetrators of the crime, so as to save them and their families from any probable danger or trouble---F.I.R. had been promptly lodged---Mistaken identity of accused was out of question, as he was previously known to the eye­witnesses-Forthright, trustworthy and worth reliance ocular evidence could not be discarded---Conviction of accused, therefore, was upheld---However, motive set up by the prosecution was not proved---Place of occurrence was just in front of the house of accused---What happened immediately before the occurrence and what transpired between the parties at the nick of the time was not known---Abscondence of accused was not proved---No crime empty having been secured from the spot, rifle recovered at the instance of accused could not be proved as the weapon of offence in the absence of any matching report of the Fire-arm Expert---Death sentence of accused was reduced to imprisonment for life in circumstances.

Noor Muhammad v. The State 2010 SCMR 97; Abdul Wahab v. The Crown PLD 1955 FC 88; The State v. Gohar Rehman and another 1969 SCMR 460; Sheral alias Sher Muhammad v. The State 1999 SCMR 697; Majnoo v. The State 1984 PCr.LJ 2069; Muhammad Bashi v. Khalid Mehmood and another 1994 SCMR 1096; Mst. Roheeda V. Khan Bahadur and another 1992 SCMR 1036 and Zulfiqar alias Bhutto v. The State 1995 SCMR 1668 rel.

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

---S. 302(b)---Qatl-e-amd---Sentence, quantum of---Appreciation of evidence---Motive-.--Inadequacy of motive lies in the background in the presence of clear, cogent and convincing evidence, and non-proof thereof has a bearing on the quantum of sentence, benefit of which has to be given to accused.

Muhammad Bashi v. Khalid Mehmood and another 1994 SCMR 1096; Mst. Roheeda v. Khan Bahadur and another 1992 SCMR 1036 and Zulfiqar alias Bhutto v. The State 1995 SCMR 1668 rel.

Mian Abdul Qayyum for Appellant.

Arshad Mehmood, D.P.-G. for the State.

Date of hearing: 9th December, 2010.

2011 P Cr. L J 793

[Lahore]

Before Sayyed Mazahor Ali Akbar Naqvi, J

ZARRAR HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 807 of 2008, heard on 2nd December, 2010.

Penal Code (XLV of 1860)---

----Ss. 324 & 336---Attempt to commit qatl-e-amd, causing hurt "itlaf-i-salahiyyat-i-udw"---Appreciation of evidence---Presence of eye-witnesses on the spot at the relevant time was natural and they had completely described the mode and manner of the occurrence without being shattered in cross-examination---Relationship of prosecution witnesses with the complainant or the injured person could not destroy their testimony---Occurrence was admitted---Accused was also closely related to the ocular witnesses---Prosecution was at liberty to produce evidence of its own choice and non production of any prosecution witness by it at the trial would not create any crack in the prosecution version---Minor discrepancies in prosecution evidence were insignificant---Trial Court had appreciated the evidence on record in its true perspective---Impugned judgment was well reasoned and did not suffer from any infirmity-Appeal was dismissed in circumstances.

Allah Bakhsh Gondal for Appellant.

Mian Muhammad Awaiz Mazhar, Deputy Prosecutor-General for the State.

Muhammad Zaher Nasir for the Complainant.

Date of hearing: 2nd December, 2010.

2011 P Cr. L J 802

[Lahore]

Before Rauf Ahmad Sheikh and Mamoon Rashid Sheikh, JJ

RUSTAM KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 167 of 2008 and Murder Reference No. 22/Rwp of 2008, heard on 6th December, 2010.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 337-F(i)---Qatl-e-amd, causing hurt "ghayr jaifah"---Appreciation of evidence---Injured eye-witness in his cross-examination had categorically staled that accused had not caused injuries to the, deceased in their view---Injury on the person of said eye-witness according to the Doctor could be either self-inflicted or caused by a friendly hand---Deceased appeared to have received injuries while lying on the cot in the room, from where blood had been secured and not at the place as claimed by the prosecution---Eye-witnesses, thus, had not seen the occurrence and their evidence did not inspire confidence---Occurrence had taken place in pitch darkness of the night---Electric bulb in the presence of which complainant had claimed to have identified the accused, was not mentioned by him in the F.I.R.---Possibility of misidentification of accused in such circumstances from a distance of 40 or 20 feet could not be ruled out---Recovery of the dagger at the instance of accused, found to have been stained with human blood, was doubtful which even otherwise could not be alone made a basis for conviction of accused, in the absence of reliable ocular testimony---Accused was acquitted in circumstances.

Syeda B.H. Shah for Appellant.

Ch. M. Waheed Ahmad Khan, D.P.-G. for the State.

Date of hearing: 6th December, 2010.

2011 P Cr. L J 815

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwaarul Haq, JJ

USMAN alias KALOO and another-Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No. 1981 of 2005 and Murder Reference No. 76 of 2006, decided on 27th January, 2011.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Benefit of doubt---Promptly lodged F.I.R. with all the necessary details of the occurrence had ruled out the possibility of any concoction or deliberation on behalf of the prosecution---Accused had been apprehended at the spot and got medically examined by the police immediately on the same night---Concessional statement of a Foot Constable was of no help to the accused in view of the overwhelming prosecution evidence available on record---Complainant, and other eye-witnesses being residents of the same village were natural witnesses of the occurrence---Ocular testimony was consistent on all material aspects of the case---Eye-witnesses had no enmity of any sort with the accused and their close relationship with the deceased was not sufficient to- discard their testimony---Medical evidence had substantially supported the ocular account qua the fatal shot received by the deceased---Conviction of accused having been based on well recognized principles of appreciation of evidence was maintained---Deceased according to F.I.R. had received a single fire-arm injury, but seven other blunt weapon injuries on his person, as mentioned in the postmortem report, had not been explained---No crime empty was recovered from the spot, no bullet was taken into possession by the Investigating Officer and even the pistol, so recovered, was. not sent to the Fire-arm Expert for opinion---Specific motive alleged in the F.I.R. was not substantiated in court---What had exactly happened between the accused and the deceased just prior to the incident, had remained a mystery---Case was of single fire at the back of the deceased---Accused in view of the said mitigating circumstances deserved the benefit of doubt to the extent of his sentence, one out of the two provided under S. 302(b), P.P.C.---Death sentence of accused was altered to imprisonment for life in circumstances.

Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others PLD 1976 SC 452; Bagu v. State- PLD 1972 SC 77; Haji v. The State 2010 SCMR 650; Khalid Saif Ullah v. The State 2008 SCMR 688; Mir Muhammad alias Miro v. The State 2009 SCMR 1188 and Ansar Ahmad Khan Barki v. The State and another 1993 SCMR 1660 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Concessional statement made by formal witnesses---Value---Obliging concessions made by formal witnesses such as police constables cannot be of any value.

Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others PLD 1976 SC 452 and Bagu v. State PLD 1972 SC 77 ref.

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

----S. 302(b)---Qatl-e-amd---Sentence---Benefit of doubt---Accused is entitled to benefit of doubt in the matter of his sentence, if any mitigating circumstance is found in his favour.

Mir Muhammad alias Miro v. The State 2009 SCMR 1188 ref.

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

----S. 302(b)---Qatl-e-amd---Burden of proof---Prosecution is bound by law to exclude all possible extenuating circumstances in order to bring the charge home to the accused for the award of normal penalty of death.

Ansar Ahmad Khan Barki v. The State and another 1993 SCMR 1660 ref.

Abdul Hameed Rana and Ijaz Ahmad Bajwa (Defence Counsel at State Expense) for Appellants.

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

Nazir Ahmad Shami for the Complainant.

Dates of hearings: 26th and 27th January, 2011.

2011 P Cr. L J 852

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

NORAZ AKBAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 13026/B of 2010, decided on 29th November, 2010.

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

----S. 497---Penal Code (XLV of 1860), S. 406---Criminal breach of trust---Bail, refusal of---First bail petition filed by accused had been withdrawn by his counsel after arguing the case at some length---Had the accused a good case, his counsel might not have withdrawn the previous bail application-Grounds taken by the accused in the present second bail petition were already available to him at the time of filing of first bail application---No fresh ground being available to accused, his present bail petition was not maintainable---Even on merits accused had no case for bail---Receipts available an record had established that the complainant had been deprived of a huge amount---Accused was nominated in the F.I.R. along with his co-accused, whose case was almost similar and he was still a fugitive from law---No body could claim bail as a matter of right in non-bailable offences, even if the same did not fall under the prohibitory clause of S. 497(1), Cr.P. C. ---Bail was declined to accused in circumstances.

Muhammad Riaz v. The State 2002 SCMR 184; Gul Nawaz alias Gul Mowaz and 2 others v. The State 1970 SCMR 667 and Muhammad Siddique v. Imtiaz Begum and 2 others 2002 SCMR 442 ref.

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

----S. 497---Bail---Second bail application---Maintainability---Where earlier bail application is withdrawn after arguing the case at some lengths fresh application for bail would not lie unless some fresh ground for bail is available.

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

----S. 497---Penal Code (XLV of 1860), S. 406---Criminal breach of trust---Bail---Offence not falling within the prohibitory clause of S.497, Cr.P. C.-Principle-Accused cannot claim bail as a matter of right in non-bailable offences, even through the same does not fall under the prohibitory clause of S. 497(1), Cr.P. C.

Muhammad Siddique v. Imtiaz Begum and 2 others 2002 SCMR 442 ref.

Ch. Naseer Ahmed Bhutta for the Petitioner.

Mian Muhammad Awais Mazhar, D.P.-G. for the State.

Khalid Rasheed Chaudhry for the Complainant.

Zafar, S.-I. with Police Record.

2011 P Cr. L J 869

[Lahore]

Before Sagheer Ahmad Qadri, J

MUHAMMAD SHAFIQ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 120-B of 2011, decided on 17th February, 2011.

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

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, grant of---Offence did not fall within the prohibitory clause of S. 497(1), Cr.P.C.---Section 489-F, P.P. C. had been enacted to penalize a person who had knowingly issued a cheque that it would be dishonoured it was not a mechanism provided for the recovery of any amount on the basis of cheques, which are otherwise negotiable instruments---Accused was in the lock-up for the last about four months---Challan had already been submitted in the court---Accused was admitted to bail in circumstances.

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

----S. 489-F---Dishonestly issuing a cheque---Nature and extent--Offence under S. 489-F, P.P. C. has been enacted to penalize a person who knowingly issues a cheque that it would be dishonoured---Said section does not provide a mechanism for the recovery of any amount on the basis of cheques, which are negotiable instruments otherwise.

Raja Shafqat Anwaar for Petitioner.

Ms. Nasreen Akhtar for the Complainant.

Rana Kashif Saleem Arfaa, Learned Law Officer for the State.

Shaukat Ali, Sub-Inspector.

2011 P Cr. L J 873

[Lahore]

Before Ch. Iftikhar Hussain, J

Mst. RAZIA BEGUM---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 9799/B of 2010, decided on 12th October, 2010.

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

----S. 497(2)---Penal Code (XLV of 1860, S. 302/34---Qatl-e-amd---Bail, grant of---Accused was not named in the F.LR. and complainant had involved her in the case later. on through his supplementary statement---Evidentiary value of the supplementary statement of the complainant would be determined at the trial---No direct evidence was available on record to connect the accused with the crime---Trial Court was yet to determine the vicarious liability of accused in the commission of the offence---Guilt of accused required further inquiry as envisaged by S.. 497(2), Cr.P.C. and as such she was entitled to bail as of right---Accused was a woman and was in jail for the last about six months---Commencement of trial did not debar the grant of bail to accused, when she was otherwise found entitled to the same---Accused was admitted to bail in circumstances.

Syed Lakhat-e-Hasnain v. The State 2010 SCMR 855; Shahzad Ahmad v. The State through F.I.A. Islamabad 2010 SCMR 1221 and Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

(b) Precedents---

----Facts of two criminal cases seldom coincide, so each criminal case is to be adjudged in the background of its own facts and circumstances.

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

----S. 497---Penal Code (XLV of 1860), S. 302/34---Qatl-e-amd---Bail---Commencement of trial---Effect---When case of an accused is otherwise found fit for bail, then mere commencement of trial cannot come as a clog in the way of the same.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

Arshad Mehmood for the Petitioner.

Khurram Khan, D.P.-G. for the State.

Complainant in person with Mrs. Tayyab Ramzan Chaudhry for Respondent No.2.

Ghulam Rasool, S.-I. with Police Record.

2011 P Cr. L J 886

[Lahore]

Before Asad Munir, J

Mst. NAEEM AKHTAR---Petitioner

Versus

WAKEEL BADSHA and another---Respondents

Criminal Misc. No. 283-BC of 2010, decided on 19th February, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(5)-Penal Code (XLV of 1860), Ss. 489-F/468/471/420---Dishonestly issuing a cheque, forgery for purpose of cheating, using as genuine a forged document and cheating---Petition for cancellation of bail---No perversity was found in the bail granting order, nor any exceptional circumstances had been brought to the notice of the court, which could persuade the court to order cancellation of the bail---Role of the petitioner as a surety in the transaction of sale of car in question, was yet to be determined; and the evidence existing on record did not make out a case for cancellation of bail---Petition for cancellation of bail being devoid of merit, was dismissed, in circumstances.

Muhammad Tanveer Chaudhry for Petitioner.

2011 P Cr. L J 895

[Lahore]

Before Manzoor Ahmad Malik, J

ABDUL HAMEED and 3 others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeal No. 325 of 2001 and Criminal Revision No. 157 of 2001, heard on 21st June, 2010.

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

----S. 156---Penal Code (XLV of 1860), S. 302(b)---Qatl-e-Amd---Investigation---Police opinion---Admissibility---Opinion of police regarding the guilt or innocence of an accused is inadmissible in evidence.

Muhammad Ahmad (Mahmood Ahmad) and another v. The State 2010 SCMR 660 ref.

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

----Ss. 155, 156, 157 & 174---Investigation---Extent and scope---Determination of guilt or innocence of accused is the exclusive domain of the cowls of law---Such sovereign power of courts can never be permitted to be exercised by police employees or by anyone else---Tendency of allowing the Investigating Officer to creep into the evidence, if not curbed, can lead to disastrous consequences---Sections 155, 156, 157 & 174, Cr.P.C. permit police officers only to investigate a case, while remaining within the ambit of "investigation" as defined in S. 4(1)(1), Cr.P.C.---Job of the Investigating Officer is only to collect evidence and to place the same before the competent court---Any expertise claimed by an Investigating Officer would be vis-a-vis his field of operation, namely collection of evidence.

Muhammad Ahmad (Mahmood Ahmad) and another v. The State 2010 SCMR 660 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Prosecution had failed to prove the motive behind the occurrence---One of the eye-witnesses was not the resident of the place of incident and he had not advanced any solid reason for staying in the house of his deceased brother at night---Said witness, as such, was a chance witness---Other eye-witness, wife of the deceased, admittedly resided in the house of occurrence, but her testimony was neither supported by the site plan nor by medical evidence---Another prosecution witness who had claimed to have seen the accused coming out from the house of the deceased armed with weapons, had not given any plausible explanation for visiting the deceased at the odd hour of midnight without any justification---Said ocular evidence was not acceptable without any independent corroboration which was absolutely missing in the case---No gun having been recovered from any of the accused, empty cartridges secured from the spot were of no avail to prosecution---Benefit of doubt was extended to accused in circumstances and they were acquitted accordingly.

Shahsawar and 2 others v. The State 1994 PCr.LJ 999; Muhammad Yousaf and 2 others v. The State 2009 PCr.LJ 1011; Abdul Wahab Khan v. Muhammad Nawaz and 7 others 2000 SCMR 1904 and Muhammad Ahmad (Mahmood Ahmad) and another v. The State 2010 SCMR 660 ref.

Zafar Iqbal Chohan and Syed Abdul Majeed Chishti, Defence counsel for Appellants.

Muhammad Afzal Lone for the Complainant.

Ch. Muhammad Zafar Khan, Deputy Prosecutor-General for the State.

Dates of hearings: 16th and 21st June of 2010.

2011 P Cr. L J 920

[Lahore]

Before Ch. Muhammad Tariq, J

QADIR YAR alias SONI---Petitioner

Versus

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

Criminal Revision No. 788 of 2010, decided on 15th September, 2010.

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

----S. 7---Penal Code (XLV of 1860), Ss. 302/34/109---Qatl-e-amd, abetment---Determination of age of accused---Investigating Officer after having verified the birth certificate of accused had prepared a separate challan for his trial under Juvenile Justice System Ordinance, 2000---Sessions Court, on the application of the complainant directed the Medical Board to determine the age of accused, who was found to be 23 years old as a result of his ossification test---Validity---Five Senior Doctors of Medical Board after conducting the ossification test of the accused had unanimously found that he was 23 years of age---In the absence of documentary evidence the best method to determine the age of someone in the present era was the ossification test/report of Radioligist, having been based on the result of highly technical and advanced equipment---Accused had himself admitted the issuance of National Identity Card to him---Overwhelming evidence was available on record to show that the accused was not minor at the time of alleged occurrence and he could not be tried under the Juvenile Justice System Ordinance, 2000---Impugned order did not suffer from any illegality or infirmity---Revision petition was dismissed accordingly.

2010 SCMR 182 ref.

Mian Muhammad Sikandar Hayat for Petitioner.

Mazhar Hyat for Respondent.

Muhammad Iqbal Chaudhry, Deputy Prosecutor-General, Punjab.

2011 P Cr. L J 923

[Lahore]

Before Ch. Muhammad Tariq, J

Mst. QAISRA BIBI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No. 109 of 2010, decided on 28th June, 2010.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Sessions Judge dismissed petitioner's (mother's) petition for production of her minor sons who had been handed over to her ex-husband by the Jirga---Validity---Minors deserved the lap of the mother due to their tender age---Order passed by the Sessions Judge was without any lawful authority---Welfare of minors was of prime importance---Petitioner being real mother of minors could better ensure their welfare---High Court accepted the petition and directed the respondent (father) to hand over the custody of minors to petitioner (mother).

M. Faiz Ahmad Cheema for Petitioner.

Muhammad Ali Tareen for Respondent No. 2.

2011 P Cr. L J 933

[Lahore]

Before Rauf Ahmad Shaikh, J

ASHIQ HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No. 222 of 2010, decided on 21st January, 2011.

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

----S. 265-K --Penal Code (XLV of 1860), S. 376---Rape---Trial Court had dismissed the application filed by accused under S. 265-K, Cr.P. C. vide impugned order---Prosecutrix and the complainant both had resiled from their previous statements recorded during investigation and had not supported the prosecution version---Medical evidence did prove that the victim girl was subjected to rape, but it did not connect the accused with the same---No probability of the conviction of accused in the case existed---Accused could be acquitted under S. 265-K, Cr.P.C. at any stage of the case---Recording of evidence of seven prosecution witnesses by the Trial Court, was not sufficient for disallowing the application of the accused---Trial Court had failed to exercise the jurisdiction vested in it under the law---Application moved by accused under S. 265=K, Cr.P.C. was accepted and he was acquitted of the charge in circumstances---Revision petition was allowed accordingly.

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

----S. 376---Rape---Appreciation of evidence---Medical evidence, utility of---Medical evidence may be used merely for corroboration and it cannot be made basis by itself for recording conviction and awarding sentence in absence of ocular evidence.

Malik Jawad Khalid for Petitioner.

Muhammad Usman, D.P.-G. for the State.

2011 P Cr. L J 943

[Lahore]

Before Rauf Ahmad Shaikh, J

SHAHBAZ AHMED---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. B/289 of 2010, decided on 3rd March, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.365-B/376/380/411---Kidnapping, abducting or inducing woman to compel for marriage, rape, theft in dwelling house and dishonestly receiving stolen property---Bail, refusal of---Alleged abductee, had stated in her statement recorded under Ss.161 & 164, Cr.P. C., that accused abducted her along with sum of Rs.2 lac and gold ornaments weighing 22-tolas; and he had been committing Zina-bil-Jabr with her---Report of Chemical Examiner had supported her contention---Alleged affidavit sworn before the Notary Public was not material at bail stage, because it was a matter of common knowledge that abductees were usually induced or forced to put signatures on such documents---Alleged abductee had denied the validity of alleged Nikahnama; and same appeared to be doubtful as none of her close relatives or person of vicinity was present at the time of solemnization and it could not be accepted at bail stage that she entered into the Nikah with her free consent---Contention of accused that he had embraced Islam, also could not be accepted at bail stage because he himself had given his name as Shahbaz Masih' in the Wakalatnama executed in favour of his counsel in the court---Accused had also purchased liquor in July, 2009 posing himself to be non-Muslim---Faith of a person was personal matter; and if one embraces Islam, it should not be disbelieved, but in that peculiar circumstance, when even after four months of embracing Islam he posed himself asChristian' such claim' would have to be scrutinized thoroughly---Marriage between accused and alleges,, abductee, was not established--Accused had been committing intercourse as admitted by him and proved through medical evidence---Prima facie, accused was involved with the commission of offence falling within the prohibited clause of S.497, Cr.P.C.---No ground for grant of bail having been made out, bail application of accused, was dismissed, in circumstances.

2008 YLR 2283; 2008 YLR 1607; 2010 YLR 735; 2004 PCr.LJ 622; 2002 SCMR 442; 2008 PCr.R. 1286 and 2008 MLD 337 ref.

Muhammad Tanveer Ch. for Petitioner.

Muhammad Izzat Khan for the Complainant.

Attiq-ur-Rehman Kiani for the State.

Ch. Muhammad Aslam S.-I. with record.

2011 P Cr. L J 950

[Lahore]

Before Ch. Muhammad Tariq, J

AMJAD ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 220 of 2010, decided on 28th June, 2010.

Penal Code (XLV of 1860)---

----Ss. 367-A & 377---Kidnapping or abducting in order to subject a person to unnatural lust, unnatural offences---Appreciation of evidence---Statement of witness was highly doubtful---Solitary statement of victim was not corroborated by any other evidence---Inordinate delay in registration of F.I.R. remained unexplained---Prosecution could not prove its case beyond doubt---Appeal was allowed and conviction and sentence of the accused was set aside.

Sadaqat Ali Khan for Appellant.

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

2011 P Cr. L J 973

[Lahore]

Before Shahid Hameed Dar, J

SARDAR ZAHEER AHMAD KHAN---Petitioner

Versus

GOVERNMENT OF THE PAKISTAN and others---Respondents

Case Diary No. 19681 of 2010, decided on 1st December, 2010.

Penal Code (XLV of 1860)---

----S. 295-C---Constitution of Pakistan, Arts. 248(2) & 199---Use of derogatory remarks etc. in respect of the Holy Prophet---Constitutional petition---Petition has sought multifarious direction from High Court, debarring the Government of Pakistan from remitting the conviction and sentence of the blasphemer accused woman or sending her to U.S.A. in supersession of the law and the Constitution, directing her to avail the remedy of filing an appeal before the appropriate forum against her conviction and sentence and also directing registration of a criminal case against the Governor of Punjab for having allegedly committed an offence of blasphemy in respect of the Holy Prophet (P. B. U. H)---Material produced by petitioner before High Court did not divulge the commission of an offence under the law of blasphemy by the Governor of Punjab, who was a Muslim by faith, so the question of registration of a criminal case against him did not arise---Even otherwise, the Governor had been provided immunity qua criminal proceedings against him while in office under Article 248(2) of the Constitution---Contentions raised by the petitioner were either based on hearsay evidence or the second hand knowledge got through press publications, highlighting the critical remarks about the Governor of Punjab, passed by same opinion makers---Petitions had no tangible material in support of his plea---Admittedly, Chief Justice of High Court had already taken cognizance of the matter and directed that the said accused woman would not be extradited from Pakistan to any other country till the final decision of her matter by the Appellate Court---Feared dispatch of the accused woman to U.S.A. without decision of her appeals by the Appellate Court, therefore, was a far-fetched cry---Petitioner being satisfied did not press the petition further and the same was disposed of accordingly.

Petitioner in person.

Abdul Wahid Babar A.A.-G. and Muhammad Nazir Abbasi, Standing Counsel on Court's call for Respondents.

2011 P Cr. L 983

[Lahore]

Before Ch. Muhammad Tariq, J

ALI AKHTAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 217-B of 2011, decided on 10th March, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 337-A(i), 337-A(vi), 337-F(i), 337-F (iv), 337-F (vi) & 324/34---Shajjah, Ghayr jaifah and attempt to commit qatl-e-amd--- Bail, grant of--- Rule of consistency---Applicability---Head injury---Filing of challan---Accused was nominated in F.I.R. with specific role of causing hatchet injury to brother of complainant---Plea raised by accused was that his co-accused was granted bail and rule of consistency was applicable---Validity---Present was a promptly lodged F.I.R. and its contents were corroborated with medico-legal report---Skull bone of injured was broken and brain was coining out of it---Accused failed to point out any evidence that he or any other resident of his house suffered any injury nor could prove that if complainant party had trespassed in his house and made an assault while armed with various weapons---Challan of the case had been sent to court for trial---Case of the accused was distinguishable from the other co-accused who had been released on bail---Bail was refused in circumstances.

Aamer Shafiq Qureshi for Petitioner.

Syed Farrukh Raza for the Complainant.

Malik Muhammad Usman, D.P.-G. with Khizar Hayat, S.-I. for the State.

2011 P Cr. L J 998

[Lahore]

Before Ch. Shahid Saeed, J

IRFAN ALI---Petitioner

Versus

THE STATE and 5 others---Respondents

Writ Petition No. 3506-S-2010/BWP, decided on 11th November, 2010.

Pakistan Army Act (XXXIX of 1952)---

----Ss. 55 & 59---Constitution of Pakistan, Art.199---Constitutional petition---Violation of good order and discipline---Civil offence---Trial by Court Martial---Petitioner who was posted as Lance Naik in Pakistan Army, while he was driving a truck, a motorcyclist collided with his truck and motorcyclist expired in said accident---Legal heirs of deceased pardoned accused in the name of Allah---Petitioner was proceeded under Ss.59 & 55 of Pakistan Army Act, 1952 and was sentenced to six months' R.I. and dismissed from service and was directed to pay Diyat to the children of the deceased---Since accused had served out the period of his sentence and the legal heirs of the deceased had forgiven him in the name of Allah and waived their right of qisas and Diyat, no useful purpose would be served to keep accused in jail for indefinite period---Accused, on the basis of compromise would be released on bail---Case was sent back to the Trial Court to take necessary steps for securing the rights of minor.

Shamsher Iqbal Chughtai for Petitioner.

Ch. Khalid Nawaz, A.A.-G. for the State.

2011 P Cr. L J 1004

[Lahore]

Before Sh. Najam-ul-Hasan and Rauf Ahmad Sheikh, JJ

AMEER HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 1630 to 1636 of 2006, heard on 21st March, 2011.

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

----Ss. 6 & 7(h)---Penal Code (XLV of 1860), S. 149---Act of terrorism---Scope---To bring an offence within the ambit of terrorism, it was necessary that threat was used to design to coerce and intimidate or overawe the government, public, community or sect; or if the act was made to create a sense of fear or insecurity in society or the purpose was to advance a religious, sectarian or ethnic cause; and the action involved firing or serious risk to safety of Public; or to frighten the general public by burning vehicles etc., or extortion of money (Bhatha); or the threat was designed to serious interfere with or seriously disrupt communication system; or public utility service; or it involved serious coercion or intimidation of a public servant in order to force him to discharge or to refrain from discharging his lawful duty; or involved serious violence against a member of the Police force or public servant---Prosecution story in the present case was that accused persons were fighting with each other and prosecution had not claimed that accused were disrupting any communication system or were violent against the Police force; or any public servant present at the place of occurrence; or that panic had been created at the spot resulting into sense of insecurity among the public---Accused were not armed with any kind of weapon at the time of occurrence-Accused in circumstances, could not be presumed to be in a position to use threat in order to create panic or sense of fear or insecurity in the society at large, it could not be termed as terrorism---Even an action which resulted into some terror, could not be equated with terrorism, while it was not intended so, because an action would amount to terrorism, if it was projected with the mens rea of creating panic or insecurity---Parties had come to persue their matters, pending before the High Court; as it appeared that at the spur of moment something happened culminating fight between them, which was not premeditated, nor its object was designed to create fear and insecurity in the society at large; or any community for that matter---Accused had not committed the offence falling within the ambit of S.7(h) of Anti-Terrorism Act, 1997, in circumstances.

Bashir Ahmad v. Muhammad Siddique and others PLD 2009 SC 11 and Basharat Ali v. Special Judge, Anti-Terrorism Court-II, Gujranwala PLD 2004 Lah. 199 ref.

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

----Ss. 147, S11 & 149---Rioting---Appreciation of evidence---Prosecution had proved that accused were present in the premises of High Court when they started fighting each other and one of accused persons was, injured and was medically examined---Participation of accused persons in the fight in the High Court was established beyond shadow of doubt---Accused claimed that they had come to the High Court to pursue their bail before arrest matter and a writ of quashment filed by them, but they did not bring on record even a single piece of evidence nor produced any document in support of that claim---Some kind of litigation existed between accused persons and their rival group---In absence of any justification for their presence in the High Court, it could well be understood that accused had come to the High Court where at the spur of moment they made unlawful assembly; and had committed rioting within the meaning of S.146, P.P.C. which was punishable under S.147, P.P.C.---Accused persons who were apprehended at the spot, remained in custody during trial; and even during pendency of appeals before the High Court---Sentence of one of accused was suspended by High Court and he was granted bail after almost one year and two months of his arrest---Sentences of remaining accused were suspended and they were released on bail after about one and a half years of their arrest---Accused, in circumstances, had already undergone more than sufficient period in custody---Sentence already undergone by accused would meet the ends of justice---Accused were on bail and stood discharged of their bail bonds.

Muhammad Amjad Pervaiz for Appellant.

Shahid Bashir Chaudhry, D.P.-G. for the State.

Date of hearing: 21st March, 2011.

2011 P Cr. L J 1040

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

NASEER AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 265 and Murder Reference No. 194 of 2004, decided on 24th March, 2010.

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

----Ss. 302(b), 324 & 337-F(i)---Qatl-e-amd, attempt to commit qalt-e-­amd and hurt "ghayr jaifah"---Appreciation of evidence---Benefit of doubt---Complainant eye-witness, real brother of one of the four deceased, had made many improvements in his statement, which suffered from many contradictions, and he' had not given any reason for his presence at the scene of occurrence---Other eye-witness, injured in the occurrence, had not named the accused in his statement recorded under S. 161, Cr. P. C. but he had nominated him in his examination­-in-chief without disclosing the source of his information---Such dishonest improvements and contradictious could not be overlooked, which had rendered the testimony of the witnesses unworthy of credence---When a witness had not nominated the accused during investigation and identified him in court then his statement would require strong corroboration by way of identification parade, which was not conducted in the case---Proceedings conducted by the prosecution declaring the accused as an absconder were not strictly in accordance with law---Even otherwise, abscondence of an accused at the most could be considered as a corroborative piece of evidence in the presence of a reliable and confidence-inspiring substantial evidence, which was wanting in the case---Conviction of accused could not be maintained on his abscondence alone--Since ocular testimony did not inspire confidence, medical evidence was of no avail to prosecution, which would only tell about the seats of injuries, the manner in which the same were caused and the kind of weapon used, but would not tell the names of the assailants---Recovery of rifle from the accused was inconsequential in the absence of the report of Forensic Science Laboratory---Benefit of the slightest doubt would go to the accused as a matter of right and not as a matter of grace---Innocent person could not be hanged for the unfortunate murder of four persons--Accused was acquitted in circumstances.

Muhammad Pervez and others v. The State and others 2007 SCMR 670; Mehmood Ahmad and 2 others v. The State 1995 SCMR 127; Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410; Syed Saeed Muhammad Shah v. The State 1993 SCMR 550; Muhammad Farooq and another v. The State 2006 SCMR 1707; Abdul Khaliq v. The State 2006 SCMR 1886; Rahimullah Jan v. Kashif and another PLD 2008 SC 298; Muhammad Zaman and another v. The State PLD 2008 Kar. 348; Mehraj Singh (L/NK) v. State of U.P. 1995 PSC Criminal 727; Muhammad Shafique Ahmad's case PLD 1981 SC 472; Roshin's case PLD 1977 SC 557; Shahbaz Khan Jakhrani's case 1984 SCMR 42; Chellappan v. State of Kerala AIR 1979 SC 1967; Muhammad Azam v. State 1997 SCMR 1489; Farman Ali v. State 1997 SCMR 971; Asghar Ali alias Subah and others v. The State and others 1992 SCMR 2088; Muhammad Akram v. The State 2009 SCMR 230; Tariq Pervez v. The State 1995 SCMR 1345 and Nazim Khan and 2 others v. The State 1984 SCMR 1092 ref.

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

----Ss. 302(b), 324 & 337-F(i)--- Qatl-e-amd, attempt to commit qatl­-e-amd and hurt "ghayr jaifah"--- Appreciation of evidence---Contradictions and improvements---Witness making improvements and contradictions in his statement is not worthy of credence.

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

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

----Ss. 302(b), 324 & 337-F(i)---Qatl-e-amd, attempt to commit qatl-e-amd and hurt "ghayr jaifah"---Appreciation of evidence---Injured witness, credibility of---Testimony of an injured witness who had seen the incident is not to be implicitly accepted because of his injuries and the same is to be appraised and tested on the principles applied for appraisal of any other prosecution witness.

Mehmood Ahmad and 2 others v. State 1995 SCMR 127 ref.

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

----Ss. 302(b), 324 & 337-F(i)---Qatl-e-amd, attempt to commit qatl-e-­amd and hurt "ghayr jaifah"--- Appreciation of evidence--Identification parade, purpose of---Identification of accused in court---Corroboration--- Substantive evidence of a witness is his statement in the court, but the purpose of identification test is to test that evidence---Safe rule is that the sworn testimony of a witness in court as to the identity of the accused, stranger to him, requires corroboration, which should be in the form of earlier identification proceedings.

Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410; Chellappan v. State of Kerala AIR 1979 SC 1967; Muhammad Azam v. State 1997 SCMR 1489; Farman Ali v. State 1997 SCMR 971 and Asghar Ali alias Subah and others v. The State and others 1992 SCMR 2088 ref.

(e) Criminal trial---

----Burden of proof---Burden of proof is always on prosecution to prove its case against the accused beyond doubt and this burden is not diminished on raising a defence plea---Defence is not bound to disprove the prosecution case---Defence plea may be taken, may not be taken and if taken, may not be proved, but the burden of proof is never on defence.

Syed Saeed Muhammad Shah v. The State 1993 SCMR 550 ref.

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

---Ss. 302(b), 324 & 337-F(i)--- Qatl-e-amd, attempt to commit qatl-e-amd and hurt "ghayr jaifah"---Appreciation of evidence---Benefit of doubt---Principles---Benefit of any doubt arising in the case must occur in favour of accused as a mailer of right and not of grace.

Muhammad Akram v. The State 2009 SCMR 230 ref.

(g) Criminal trial---

---Abscondence---Effect---Abscondence alone is not a conclusive proof of guilt of accused, but is only a suspicious circumstance against him---Suspicion cannot take the place of proof---Abscondence is a supporting evidence of the guilt of accused---Abscondence of accused may be consistent with his guilt or innocence depending upon the overall facts of each case.

Rahimullah Jan v. Kashif and another PLD 2008 SC 298 ref.

Azam Nazeer Tarar for Appellant.

M. M. Alam Chaudhry, Additional Prosecutor-General, Punjab for the State.

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

2011 P Cr. L J 1073

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

USMAN LIAQUAT---Petitioner

Versus

THE STATE and 6 others---Respondents

Criminal Miscellaneous No. 2288-M of 2009, decided on 28th September, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 517---Constitution of Pakistan, Art.199---Constitutional petition---Superdari of vehicle---Petitioner who claimed to be owner of vehicle which was taken into possession by the Police, filed application for superdari of the same---Magistrate passed an order far handing over vehicle to the petitioner on superdari; but S.H.O. concerned denied said superdari on the ground that vehicle in question had already been handed over on superdari to respondent---Validity---Order passed by the Magistrate to hand over the vehicle to the petitioner was a conditional order and petitioner had not complied with the said condition of submitting the original documents of the vehicle; in the meanwhile the petitioner approached High Court and filed constitutional petition and thereafter had continuously sought adjournments from the Magistrate instead of submitting the original papers of the vehicle---Magistrate consigned the pending application as having become infructuous on account of the pendency of constitutional petition before High Court---Number of the vehicle given by the petitioner in his petition was different from that of the vehicle number given on superdari to respondent-Constitutional petition was dismissed in circumstances.

Zaheer-ud-Din Babar for Petitioner.

Ghulam Qadir Bari, Assistant Prosecutor-General for the State.

2011 P Cr. L J 1082

[Lahore]

Before Sh. Ahmad Farooq, J

Rana MUHAMMAD SARWAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revisions Nos. 1009 and 970 of 2010, heard on. 14th February, 2011.

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

---Ss. 420, 468 & 471---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal Procedure Code (V of 1898), S.249-A---Cheating, forgery, using as genuine a forged document and illegal gratification---Application for acquittal---Complainant got registered a case to the effect that her land was fraudulently sold out without her knowledge through appointment of local commission by forging identity card in connivance with the staff of Sub-Registrar---Petitioners who were serving in the office of the Sub-Registrar at the relevant time were associated in the investigation along with the vendor, the vendees and the attesting witnesses of the alleged bogus sale-deed and the petitioners were placed in Column No.2 of the report under S.173, Cr.P.C., with the recommendation that the case to their extent be dropped---Despite said recommendations of Investigating Officer, Trial Court summoned the petitioners to face the trial---Application filed by the petitioners under S.249-A, Cr.P.C. was dismissed---Validity---Nothing was on record showing that .the petitioners had played any fraud with the vendor or the vendees---Petitioners were neither named in the F.I.R. nor any specific role of connivance had been levelled by the complainant therein---Prosecution was bound to show the role played by the petitioners in the appointment of Local Commission on whose report the alleged bogus sale-deed was registered, but it had failed to do so---No incriminating material was available with the prosecution to link the petitioners with the preparation of forged sale-deed---Merely being on staff of Sub-Registrar, the petitioners could not be presumed to have facilitated the alleged forgery; there must be some cogent and solid evidence to involve the petitioners in the case---No plausible reasons had been given by the Trial Court for summoning the petitioners to face the trial along with their co-accused named in the F.I.R.---Observations made by Trial Court that resort to S.249-A, Cr.P.C., could not be made till recording of prosecution evidence was erroneous and devoid of any legal force---Prosecution had failed to show availability of any material justifying the Trial Court to continue with the trial---Impugned order passed by the Trial Court was set aside and the petitioners were acquitted of the charge levelled against them.

Abdul Sattar and others v. The State 1992 PCr.LJ 2054 ref.

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

----S. 249-A---Application for acquittal---Scope---Application under S.249-A, Cr.P.C., could be moved at any stage of the proceedings---Trial Court had only to see whether on the basis of the evidence or material available with the prosecution, any probability of the conviction of accused existed; and if it found that there was no evidence or circumstances sufficient to prove the guilt of accused; and his trial would be merely an abuse of process of law, it had to exercise the powers vesting in it under S.249-A, Cr.P. C. to save accused from the agony of a useless trial.

Shaharyar Sheikh for Petitioner.

Muhammad Naeem Sheikh, D.P.-G. for Respondents.

Date of hearing: 14th February, 2011.

2011 P Cr. L J 1112

[Lahore]

Before Sh. Ahmad Farooq, J

SHAFQAT HUSSAIN---Petitioner

Versus

S.H.O. POLICE STATION TOBA TEK SINGH and 7 others-Respondents

Writ Petition No. 2276 of 2011, decided on 7th April, 2011.

Penal Code (XLV of 1860)---

----S. 365-B---Constitution of Pakistan, Art. 199---Constitutional petition---Kidnapping, abducting or inducing woman to compel for marriage etc.---Quashing of F.I.R.---Petitioner and other co-accused, were facing serious allegation of abduction and theft of valuable articles from the house of the complainant; and their person was required for effecting recovery of the stolen articles---Petitioner had not joined the investigation to prove his innocence---High Court had no jurisdiction whatsoever to take the role of the Investigating Agency while exercising its powers under Art. 199 of the Constitution---Determination of innocence or otherwise of accused/petitioner totally depended upon the production of evidence during the trial---If the petitioner would think that prosecution had not sufficient evidence available against him to prove his guilt, he would have an alternate efficacious remedy under S. 249-A, Cr.P. C. for seeking his acquittal from the Trial Court---Impugned F.I.R. and the proceedings being conducted thereon could not be quashed as same were neither coram non judice nor being conducted in violation of the procedure or amounted to abuse of the process of law---Petition was dismissed.

Muhammad Shakil Tariq for Petitioner.

Rana Qurban Ali for Respondent No. 3.

Syed Aftab Sherazi for Respondent No. 2.

Jawad Hassan, Additional Advocate-General Punjab along with Ghulam Qadir, S.-I.

2011 P Cr. L J 1126

[Lahore]

Before Sagheer Ahmad Qadri and Rauf Ahmed Sheikh, JJ

QAISER HUSSAIN alias KASHI alias KASHIF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 125-T of 2007 and C.S.R. No. 02/RWP of 2009, heard on 14th February, 2011.

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

----S. 161--- Statement of witness--- Delay in recording--- Effect---Recording of statement of prosecution witness with delay is not by itself sufficient to discard its value, the circumstances make it so---If statement is delayed due to certain ulterior motives like filling up certain lacunas in prosecution version, then it becomes valueless and if circumstances justified then every statement recorded with delay is not to be discarded.

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

----S.365-A---Anti-Terrorism Act (XXVII of 1997), S.21-L---Kidnapping for ransom---Appreciation of evidence---Identification of accused---Non-recovery of ransom money and weapon of offence---Accused remained fugitive from law for six years and after his arrest he was convicted and sentenced to death by Trial Court---Plea raised by accused was that no identification parade was held to identify the accused and there was no recovery of ransom money or weapon of offence from him---Validity---In cases in which identity of accused was in doubt, identification parade was a mechanism provided to rule out all possibilities of false implication of an innocent person in commission of offence and in those eventualities identification parade was must---Name of accused was mentioned in F.I.R. lodged by complainant and corroborated by prosecution witness---Abductee who remained in captivity of accused for about 5-6 days had the opportunity to see the accused and while appearing as a witness he identified the accused in Trial Court---In such circumstances no necessity had arisen for getting conducted any identification parade---Accused remained as proclaimed offender for about six years, non-recovery of ransom money and weapon of offence used at the time of occurrence had no effect---Trial Court rightly passed conviction and sentence against accused and the same was maintained by High Court---Appeal was dismissed in circumstances.

Muhammad Khan v. Maula Bakhsh and another 1998 SCMR 570; Sahib Gul v. Ziarat Gul and others 1976 SCMR 236 and Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 ref.

Muhammad Akbar v. The State 1998 SCMR 2538 rel.

Noor-ul-Hassan Khan, Defence counsel for Appellant.

Rana Kashif Saleem Arfaa, Law Officer for the State.

Date of hearing: 14th February, 2011.

2011 P Cr. L J 1153

[Lahore]

Before Sagheer Ahmed Qadri, J

WASEEM SHEHZAD---Petitioner

Versus

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

Writ Petition No. 4666 of 2010, decided on 2nd March, 2011.

Punjab Prevention of Gambling Ordinance (VII of 1978)---

----Ss. 6 & 8---Constitution of Pakistan, Art. 199---Gambling in private place--- Constitutional petition--- Quashing of F.I.R.--- District Magistrate or a Magistrate Ist class could only enter the private place of gambling with suitable assistance and proceed further, as required under S. 8 of the Punjab Prevention of Gambling Ordinance, 1978---In the present case, a police officer without getting the search warrant, rather informing the concerned Magistrate, had himself conducted the search and arrested the accused and other co-accused and clearly violated the mandatory provisions of S. 8 of the said Ordinance---"Baithak" from where accused had been apprehended was a private place situated in a residential house---Complainant police officer had committed a patent illegality and all the subsequent proceedings including investigation and submission of challan, were void ab initio and were liable to be quashed---Contention of State Counsel that the accused could avail the remedy under S. 249-A, Cr.P.C. in the Trial Court for his acquittal, could not be acceded to, as the same would be a futile effort just to linger on the agony of the accused---F.I.R. was quashed in circumstances.

Muhammad Asif v. The State and 6 others 2007 YLR 314 ref.

Abdullah S. Awan for Petitioner.

Nadeem Akhtar Bhatti, A.A.-G. and Javed, S.-I. for Respondents.

2011 P Cr. L J 1178

[Lahore]

Before Altaf Ibrahim Qureshi, J

FAISAL---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 4822-B of 2011, decided on 24th May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.392---Robbery---Bail, grant of---Further inquiry---Accused was not named in the F.I.R.; he was already arrested in another case and during his arrest in the said case his disclosure of committing dacoity, could not be termed as a substantive piece of evidence to connect him with such offence---No details or description of three dacoits had been given in the F.I.R.---During identification parade, conducted almost after 93 days of the occurrence, the complainant, who was not an eye-witness, identified the accused---Wrongful involvement of accused in the case, could not be ruled out in such type of delayed identification parade---No detail of looted currency had been mentioned in the F.I.R., recovery of amount after 93 days of the occurrence, would be a matter of evidence and its sanctity would be seen in trial after recording of evidence---Accused who was non-convict was behind the bars for the last more than seven months and no more required for further investigation and the trial was not in sight---Keeping accused in jail for an indefinite period, would not serve any useful purpose---Case of accused falling within the ambit of further inquiry, he was admitted to bail, in circumstances.

Rana Habib-ur-Rehman Khan for Petitioner.

Ch. Karamat Ali, Deputy Prosecutor-General along with Muhammad Akhtar, Sub-Inspector with record.

Abdul Sadiq Chaudhry for Respondent No.2/Complainant.

2011 P Cr. L J 1185

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

NASRULLAH---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No. 771 of 2010, decided on 18th August, 2010.

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

----S. 412---Dishonestly receiving property stolen in the commission of a dacoity---Appreciation of evidence---F.I.R. had been lodged after a delay of two days---Complainant had been introducing new sets of culprits through his subsequent supplementary statements---Evidence regarding recovery of stolen articles from the accused was highly discrepant on very material aspects, viz. marking of the same by Investigating Officer, producing the same as case property in the court and identification of the same by the prosecution witnesses---Even also the accused and his acquitted co-accused had been brought at the place of recovery together in the same van and the recovery had been effected from the one and the same village---Recovery appeared to have been planted on the accused---Evidence on record did not inspire confidence---Fatal discrepancies and contradictions in recovery evidence had also escaped the notice of the Appellate Court---Accused was acquitted in circumstances.

Syed Manzoor Hussain Shah v. Syed Agha Husain Naqvi and another 1983 SCMR 775; Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522; Anwar v. Crown PLD 1955 FC 185 and Abdur Rashid Khondkar v. Chandu Matbar and 15 others PLD 1974 SC 795 ref.

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

----S. 439---Revisional jurisdiction of High Court---Scope---Revisional jurisdiction of High Court is very wide and it may be exercised whenever facts calling for its exercise are brought to the notice of the court.

Syed Manzoor Hussain Shah v. Syed Agha Husain Naqvi and another 1983 SCMR 775 ref.

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

----S. 439---Revisional jurisdiction of High Court---Scope---High Court while exercising revisional jurisdiction cannot only go into evidence and reverse the findings and adjudge the propriety of the judgment, rather can also evaluate the reasonability and correctness of conviction and sentence.

Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522; Anwar v. Crown PLD 1955 FC 185 and Abdur Rashid Khondkar v. Chandu Matbar and 15 others PLD 1974 SC 795 ref.

Sheikh Tanveer Hussain for Petitioner.

Ishaque Masih Naz, Deputy Prosecutor-General Punjab for the State.

Malik Riaz Ahmed for the Complainant.

2011 P Cr. L J 1198

[Lahore]

Before Altaf Ibrahim Qureshi, J

NAVEED MASIH---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail No. 5184-B of 2011, decided on 24th May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 337-F(v), 337-F(iii), 337-L(2), 148 & 149---Causing injuries and hurt to commit qatl-e-amd---Bail, grant of---Further inquiry---F.I.R. was lodged with the delay of eight days, for which no plausible explanation had been given in the F.I.R.---Such delay in lodging the F.I.R., though was not fatal, but would give rise to the presumption of accused having been falsely involved---Alleged assault made, with the purpose of committing murder and its knowledge, attracting the provisions of S.324, P.P.C., was a question, which could only be determined after recording of evidence by the Trial Court tentatively--- Case seemed to be that of a hurt, falling under S.337-F(v), P.P.C., entailing five years imprisonment---Only one injury on the non-vital part of the body, was attributed to accused and there was no allegation of its repetition---Accused was behind the bars for the last more than six months and he was no more required for further investigation---To keep accused in jail for an indefinite period, would not serve any useful purpose, particularly when no evidence had been recorded by the Trial Court---Case against accused falling within the ambit of further inquiry, accused was admitted to bail, in circumstances.

Ch. Saifullah Warraich for Petitioner.

Ch. Karamat Ali, Deputy Prosecutor-General along with Naseem Butt, Sub-Inspector with record for the State.

Complainant in person.

2011 P Cr. L J 1209

[Lahore]

Before Rauf Ahmed Sheikh, J

MUMTAZ KHAN---Petitioner

Versus

ADDITIONAL INSPECTOR-GENERAL OF POLICE, INVESTIGATION BRANCH, PUNJAB, LAHORE and others---Respondents

Writ Petition No. 48 of 2011, heard on 9th February, 2011.

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

----Art. 18(6)---Penal Code (XLV of 1860), Ss.302/324/148/149---Constitution of Pakistan, Art.199---Constitutional petition---Qatl-e-amd and attempt to commit qatl-e-amd---Transfer of investigation---Petitioner/complainant had assailed the vires of order passed by Additional Inspector General of Police, whereby investigation of the case was transferred---Impugned order was passed on the basis of the report submitted by the Board---Report of Board had shown that accused was a proclaimed offender in the case against whom the challan had been submitted under S.512, Cr.P.C.---Without appearance or surrender of accused before the competent authority, request for transfer of investigation, could not have been entertained---Application for transfer of investigation, on any ground, whatsoever, could not have been entertained; it was specifically mentioned in the report of the Board that applicant was father of the proclaimed offender---Additional Inspector General of Police, could not have entertained the application of a third person for none else than a proclaimed offender---Impugned order was not sustainable in the eyes of law and same was set aside.

Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539; Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31; Liaqat Ali Virk v. Inspector-General of Punjab Police, Lahore and 8 others PLD 2010 Lah. 224; 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; Saddar Din v. Deputy Inspector-General of Police (Investigation), Capital City Police, Lahore and 6 others PLD 2009 Lah. 585; Muhammad Iqbal v. The State 2010 PCr.LJ 888; Allah Bakhsh and another v. Settlement Commissioner and another 1986 MLD 467 and Water and Power Development Authority/Lahore Electricity Supply Company Limited through Sub-Divisional Officer, Sheikhupura v. Messrs Bhatti Ice and Rice Mills, Buchiki through Proprietor and another 2004 YLR 1263 ref.

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

----Ss. 156 & 173---Re-investigation of criminal case---No legal bar existed on reinvestigation of a criminal case after submission of the final report under S. 173, Cr.P.C., if new event/incident would take place warranting reinvestigation or further investigation.

Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373 and Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 21 ref.

Muhammad Bashir Paracha for Petitioner.

Abdul Wahid Babar, A.A.-G. along with Abdul Hafeez Inspector/S.H.O. with Record for Respondents.

Sh. Ahsan-ud-Din for Mubashar Mehmood Khan alias Gory Khan for accused.

Sardar Zaheer Ahmad Khan for Mehmood Khan.

Date of hearing: 9th February, 2011.

2011 P Cr. L J 1220

[Lahore]

Before Rauf Ahmad Sheikh, J

JAVAD IQBAL KHAN---Petitioner

Versus

NAHID HUSSAIN and another---Respondents

Writ Petition No. 13364 of 2010, decided on 21th June, 2010.

West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5, Sched., Ss.10 & 11---Constitution of Pakistan, Art.199---Constitutional petition---Suit for dissolution of marriage on ground of Khula---Recording statement of plaintiff before filing of the written statement by the defendant---Plaintiff (wife) filed application under O.XVIII, R.16, C.P.C. and contended that she was proceeding abroad where she was serving as Doctor, so her statement be recorded---Family Court proceeded to record statement of the plaintiff before filing of the written statement of the defendant---Defendant had not been served till then in the suit and no notice of the application of the plaintiff was given to him before recording the statement of the plaintiff---Defendant was not afforded an opportunity of cross-examination---Family Court by not complying with provisions of Ss.10 & 11 of West Pakistan Family Courts Act, 1964 had committed irregularity in recording the evidence of the plaintiff without complying codal formalities and without giving notice to the defendant---Family Court should have allowed the defendant to file the written statement, fix a date for reconciliation; and if the reconciliation was not possible, should have proceeded further in accordance with law in passing the decree on principle of Khula---Order accordingly.

Zaheer-ud-Din Babar for Petitioner.

2011 P Cr. L J 1225

[Lahore]

Before Mazhar Iqbal Sidhu, J

FAROOQ ALI AKBAR---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.358-B of 2011, decided on 2nd March, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324/365/334/201/34/109---Attempt to commit qatl-e-amd, kidnapping, itlaf-i-udw, causing disappearance of evidence of offence---Bail, refusal of---Accused had been specifically named in F.I.R. causing injury on right leg of the injured which resulted in amputation of leg---Offence under S.334, P.P.C. was added---Accused had criminal antecedents who during investigation had been found guilty---No case having been made out for grant of bail, bail application was dismissed, in circumstances.

Mian Muhammad Tayyib Wattoo for Petitioner.

Khalid Pervaiz Uppal, D.P.-G. with M. Fayyaz A.S.-I.

2011 P Cr. L J 1228

[Lahore]

Before Ijaz Ahmad Chaudhary, C.J. and Ijaz ul Ahsan, J

MOONIS ELAHI---Petitioner

Versus

JUDGE, SPECIAL COURT, OFFENCES IN BANK and 2 others---Respondents

Writ Petitions Nos. 5060 and 5061 of 2011, decided on 17th March, 2011.

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

----Ss. 409/420/468/471/109---Prevention of Corruption Act (II of 1947), S. 5---Constitution of Pakistan, Art. 199---Criminal breach of trust, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment, criminal misconduct--- Constitutional petition---Maintainability---Accused petitioner, in addition to seeking transfer of cases from the Trial Court had challenged issuance of non-bailable warrants of arrest against him---In the report submitted by the Investigating Officer before the Trial Court under S. 173, Cr.P.C. name of the accused was mentioned in red ink indicating that he was an absconder---Trial Court, thus, had rightly issued non-bailable warrants of arrest against accused, against which he could move the said court while explaining his position---Adequate, alternate and efficacious remedy being available to the accused, petitions were not maintainable---Counsel for the accused had given no cogent reason justifying the transfer of the cases from the Trial Court to any other court---Even otherwise, a challenge to jurisdiction of a court must in the first instance be raised before the same court, which the accused had failed to do--- On this score too the petitions were not maintainable---Accused while apprehending his arrest had also moved an application for bail before arrest---Incriminating material collected by the investigating agencies had, prima facie, connected the accused with the commission of the alleged offences---Fraudulent scam had been prepared and executed to sell certain properties at highly exaggerated price whereby national exchequer had been deprived of huge sums of money---Statements of Managers and other Officers of the Banks had clearly suggested that fictitious accounts in which amounts were received were opened with the knowledge and under the instructions of the accused---Bank officials had no reason to falsely implicate the accused---Investigating agencies too were not motivated to involve the accused falsely in the case or to damage his prestige and political career---Pre-arrest bail was also declined to accused in circumstances---Constitutional petitions were dismissed being not maintainable.

Mushtaq Hussain Shah v. The State 1986 PCr.LJ 567 distinguished.

Muhammad Anwar Samma and another v. The State 1976 PCr.LJ 1051 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Question of jurisdiction of Trial Court--- Challenge to jurisdiction of a court must in the first instance be raised before the same court---Such having not been done, constitutional petition shall not be maintainable.

S.M. Zafar and Dr. Khalid Ranjha for Petitioner.

Tanveer Hussain Hashmi, Ilyas Khan Malik, Mushtaq Ahmad Awan, Deputy Attorney-Generals, Rana Abdul Rehman, Ghulam Murtaza Chaudhri, Mian Muhammad Hanif Tahir Standing Counsel with M/s. Zafar Ahmad Qurashi, Additional Director-General, FIA, Naveed Hussain, Deputy Director, FIA, Zia Islam A.D. (Legal) FIA and Muhammad Sarwar Inspector/IO for Respondents.

2011 P Cr. L J 1239

[Lahore]

Before Shahid Hameed Dar, J

RIZWAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 8507-B of 2010, decided on 17th August, 2010.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S. 379---Theft---Pre-arrest bail, grant of---Complainant had implicated the accused in the case simply on the basis of suspicion about the theft of his cell phone and some cash---Complainant and other prosecution witness had only learnt that it was the accused who had stolen the said items, but record was absolutely silent as to the source of their information---Doubt or suspicion, howsoever strong, could not be equated with admissible evidence and accused even at bail stage was entitled to get the benefit of doubt---Complainant during investigation had failed to connect the accused with the crime through any evidence---False implication of accused in the present situation due to malice or ulterior motive of the complainant, could not be ruled out---Pre-arrest bail was allowed to accused in circumstances.

Mian Muhammad Irfan for Petitioner.

Khurram Khan, D.P.-G. and Javaid A.S.-I. with Police file for the State.

Complainant in person.

2011 P Cr. L J 1248

[Lahore]

Before Ijaz Ahmad Chaudhry, C.J.

ABDUL RAZZAQ---Petitioner

Versus

MUHAMMAD NAEEM and 4 others---Respondents

Criminal Revision No. 81 of 2011, decided on 3rd February, 2011.

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

----S. 540---Power to summon material witness or examine persons present---Scope and purpose elucidated giving guidelines on the point.

The perusal of section 540, Cr.P.C. reflects that jurisdiction of the court is divided into two parts, first is discretionary in nature and the second is mandatory. The court has unfettered powers to compulsorily examine any person whose evidence will provide help to elucidate/ ascertain the truth for reaching at a just and fair conclusion of the case. The provisions of section 540, Cr.P.C. extend the discretion of the trial Court in a broad manner and empower it to associate any person with the trial conversant with the facts and features of the case who otherwise is given up by any party. The judicial proceedings are always meant to promote the just decisions without prejudice to any claim put forwarded by the rival parties of criminal cases against each other. It lies with the trial Court to examine the facts and circumstances of the matter with great care and caution and if it reaches to a conclusion that the evidence of a particular person will prove stepping-stone in imparting a just decision of the matter, then it is obligatory upon the court to summon such person for adducing evidence. Over and above all these, if the prosecution gives up a material witness as unnecessary even then the trial Court is not helpless into the matter and cannot be a silent spectator with blind eyes and deaf ears. Keeping in view the facts and circumstances of each and every case the trial Court has to regulate and conduct the trial while remaining within the four corners of law.

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

----S. 540---Penal Code (XLV of 1860), Ss. 302/148/149---Qatl-e-amd, rioting armed with deadly weapons---Trial Court vide impugned order on the application of accused had summoned the two Investigating Officers as court witnesses, who had during investigation found the accused in the case innocent and who had been given up by the prosecution---Validity---Said police officers during investigation had been in touch with each and every aspect of the case, such as recording the statements of the witnesses under S. 161, Cr.P.C. and associating them with the investigation by visiting the place of occurrence, etc.---These police officers were material witnesses, who would bring on record certain characteristics of the case, which would of course assist in deciding the case justly and fairly---Both the parties would have ample opportunity to cross-examine both the court witnesses and no harm would be caused to the case of either party---Courts would keep in mind that the evidence of such persons would extend justice to both the parties and not to a particular side---Even otherwise, no jurisdictional infirmity, illegality of approach, irregularity of procedure or perversity of reasoning had been pointed out on behalf of the complainant petitioner so as to warrant an interference in the impugned order---Petition was dismissed in limine in circumstances.

Haji Muhammad Abdullah v. The State 1995 SCMR 821; Karam Ali v. Ghulam Ali and 9 others 1997 MLD 1571; Farman Ali and 2 others v. The State 1992 SCMR 2055 and Muhammad Ashraf v. The State and 4 others 2007 PCr.LJ 905 ref.

Aamir Majeed Rana for Petitioner.

2011 P Cr. L J 1261

[Lahore]

Before Sh. Najam ul Hasan and Rauf Ahmad Shaikh, JJ

ALI SHER alias MUHAMMAD SHER through Ali Muhammad---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1439 and Murder Reference No. 540 of 2007, heard on 10th March, 2011.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Qatl-e-amd---Appreciation of evidence---Incident was a day light occurrence and motive was also proved---Circumstances had established that the parties were previously known to each other and identity of accused was not a matter of issue---Present was a case in which each of the deceased was attributed specific injury at the hands of each accused---Delay in post mortem was not a circumstance which could lead to the inference that F.I.R. was registered at a belated stage---No enmity existed between the parties and the defence remained unable to bring on record any previous enmity between the complainant party and accused---Ocular account in the case was trustworthy, reliable and was supported by the medical evidence, motive and absconsion of accused---Defence taken by accused was absolutely unreliable and unnatural---Evidence had proved that both accused had shared common intention to kill the deceased---Firing only one shot would not bring the case of accused within mitigation, unless intention of accused for not intending death was supported by other extenuating circumstances, calling for lesser sentence, which were absent in the case---Accused was sitting ambushed armed with rifle along with his co-accused waiting for the deceased persons, expecting them to pass through the way---For qatl-e-amd, normal penalty provided by law was sentence of death, but if certain circumstances called for lesser sentence, then the court would consider said extenuating circumstances; but in the present case no such circumstance was forthcoming---Accused had acted in a callous manner; and even in the matter of quantum of sentence, he did not deserve any leniency---Prosecution had proved its case against accused beyond any shadow of doubt---Trial Court, in circumstances, had rightly convicted and sentenced accused.

Muhammad Sharif v. Muhammad Javaid PLD 1976 SC 452 and Umar Farooque v. The State 2006 SCMR 1605 ref.

Malik Muhammad Shafiq Bhandar and Malik Muhammad Khan Daal for Appellant.

Shahid Bashir Chaudhry, D.P.-G for the State.

Rana Munir Ahmed Khan for the Complainant.

Date of hearing: 10th March, 2011.

2011 P Cr. L J 1289

[Lahore]

Before Tariq Javaid, J

MUHAMMAD AKHTAR---Petitioner

Versus

DIRECTOR-GENERAL ANTI-CORRUPTION and others---Respondents

Writ Petition No. 4777 of 2010, decided on 15th September, 2010.

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

----Ss. 420, 424, 468 & 471---Constitution of Pakistan, Art.199---Constitutional petition---Cheating, fraud, forgery and tampering with record---Registration of case---Grievance of the petitioner was that the respondent/Police Officer had illegally failed to register a criminal case against respondents on various charges levelled against them---To redress the grievance of the petitioner, police officer was directed to afford an opportunity of hearing to the petitioner and then pass an appropriate order---Police officer gone through the details of the case, afforded an opportunity of hearing and then passed the impugned order---Findings recorded by the Police officer did not conclude that the petitioner had been deprived from his Sharia right of inheritance, but had merely opined, and rightly so, that in absence of any plausible evidence during pendency of the civil proceedings a criminal case was not made out---Police official further stated that petitioner ought to wait for the outcome of civil proceedings---All the allegations levelled against the respondents, had been sufficiently dealt with by the Police Officer---Action had also been proposed against one of the respondents who allegedly had tampered with the record of investigation---Impugned order did not call for any interference by High Court---Petition was dismissed.

(b) Administration of justice---

----Civil and criminal proceedings---Criminal and civil proceedings could continue side by side, but for initiating criminal proceedings, it must also be shown that from attending circumstances a criminal case was made out.

(c) Companies Ordinance (XLVII of 1984)---

----S. 37---Using names of former head of States by private hospitals---Records of private hospitals must not be taken into consideration without due care and circumspection as those hospitals were not being properly regulated; nor there was any effective regulation to control their business activities---Even the names used by some of those uncontrolled hospitals infringed upon the provisions of S.37 of the Companies Ordinance, 1984---Corporate Law Authority in case of companies registered under the Companies Ordinance, 1984 or other government agencies had failed to take notice that private hospitals could not use the names of former heads of State; and the names suggesting patronage of past and present government.

Muhammad Ameer Bhatti for Petitioner.

2011 P Cr. L J 1313

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

IQBAL SHAFIQ---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, LAHORE and 4 others---Respondents

Criminal Petition No. 1375-M of 2005, decided on 5th November, 2010.

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

----S. 145---Procedure where dispute concerning land etc. is likely to cause breach of peace---Object and extent of S. 145, Cr.P.C.---Object of S. 145, Cr.P.C. is the prevention of breach of public peace arising in respect of dispute relating to immovable property---Settlement of dispute relating to property which is not likely to lead to a breach of peace, is within the exclusive jurisdiction of Civil Court---Magistrate having taken cognizance of proceedings under S. 145, Cr.P.C. need not determine the factum of factual physical possession of the disputed property.

Qazi Gran v. Muhammad Jan and another PLD 1996 SC 541 ref.

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

----Ss. 145 & 561-A---Quashing of orders of lower courts---Proceedings under S. 145, Cr.P.C. were initiated only when there was immediate apprehension of breach of peace---Both the parties had not only filed civil suits against each other rather proceedings were also pending before the Company Judge of High Court where question with regard to number of shares was under adjudication---No untoward incident had taken place between the parties for a considerable time---Magistrate, therefore, had rightly dismissed the proceedings initiated under S. 145, Cr.P.C. and Sessions Court had rightly upheld the said order in exercise of its revisional jurisdiction---Impugned orders did not suffer from any illegality---Petition was dismissed accordingly.

Muhammad Afzal v. Muhammad Bashir and 2 others 2007 MLD 1535; Chaudhry Munir v. Mst. Surriya and others PLD 2007 SC 189; Qazi Gran v. Muhammad Jan and another PLD 1996 SC 541; Fazal Haq v. Muhammad Latif PLD 1985 SC 294; Maqbool Rehman v. The State 2002 SCMR 1076; Mahmood Saeed v. Amir Nawaz Khan 1996 SCMR 839; Fazal Karim v. State 1986 SCMR 483 and Muhammad Sharif v. Muhammad Javed PLD 1976 SC 461 ref.

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

----S. 145---Object, purpose and scope of S. 145, Cr.P.C.---Prime object of the proceedings under S. 145, Cr.P.C. is to prevent a breach of peace and to maintain status quo till the controversy is decided by the Civil Court---Purpose of the said proceedings is to meet an emergent situation in order to maintain peace and further to enable the parties to set the controversy at naught through Civil Court qua the title or claim of the property in dispute---Mandatory requirement of S. 145, Cr.P.C. is that there must not only be a dispute, but it is essential that such dispute is likely to cause breach of peace---In case of dispossession of property having not been coupled with apprehension of breach of peace, parties should approach the Civil Court for redressal of their grievance.

Chaudhry Munir v. Mst. Surriya and others PLD 2007 SC 189 and Fazal Haq v. Muhammad Latif PLD 1985 SC 294 ref.

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

----S. 561-A---Inherent powers of High Court---Scope---Power conferred upon High Court under S. 561-A, Cr.P.C. is required to be exercised in exceptional cases where it is apparent that continuation of proceedings complained of would amount to gross abuse of process of court or that it is absolutely necessary to exercise inherent powers to secure the ends of justice---Said powers being extraordinary in nature must be exercised sparingly with utmost care and caution and not in a casual and cursory manner---Inherent jurisdiction under S. 561-A, Cr.P.C. is neither alternative nor additional in its character and is to be rarely invoked.

Maqbool Rehman v. The State 2002 SCMR 1076; Mahmood Saeed v. Amir Nawaz Khan 1996 SCMR 839; Fazal Karim v. State 1986 SCMR 483 and Muhammad Sharif v. Muhammad Javed PLD 1976 SC 461 ref.

Manzoor Hussain Butt for Petitioner.

Ch. Fawad Hussain for Respondent.

Mian Muhammad Awais Mazhar, Deputy P.-G. for the State.

Date of hearing: 22nd October, 2010.

2011 P Cr. L J 1328

[Lahore]

Before Ch. Muhammad Tariq, J

MUHAMMAD ILYAS and others---Petitioners

Versus

A.S.J. and others---Respondents

Criminal Revision No. 25 of 2011 and C.M. No.221-M of 2011, decided on 12th April, 2011.

Explosive Substances Act (XI of 1908)---

----S. 5---West Pakistan Arms Ordinance (XX of 1965), S.13---Possession of unlicenced arms and possessing explosives under specious circumstances---Appreciation of evidence---House or the place from where the accused were allegedly arrested was not proved by the prosecution to belong to anybody---Report of the Bomb Disposal Expert available on record had no diary number of his office---Said Expert admittedly had not sent the recovered chemicals and explosives to Chemical Examiner, Forensic Science Laboratory or any other office or person of expertise, to determine their nature---Investigating Officer had not recorded the statement of any person to whom the SHO had handed over the recovered material---Prosecution evidence had many material discrepancies, which had not been considered properly by both the courts below---Prosecution had failed to prove its case beyond any shadow of doubt---Accused were acquitted in circumstances.

Basharat Ullah Khan and M. Ilyas Siddiqui for Petitioners.

Ch. Muhammad Waheed Khan, Deputy Prosecutor-General for Respondents.

Date of hearing: 12th April, 2011.

2011 P Cr. L J 1354

[Lahore]

Before Abdus Sattar Asghar, J

AAMER SOHAIL---Petitioner

Versus

THE STATE and 3 others---Respondents

Criminal Miscellaneous No. 553/CB/2010/BWP of 2010, decided on 13th June, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 452/379/337-F(iii)/148/149---House-trespass, theft, causing Mutalahimah---Cancellation of bail, application for---Before F.I.R. lodged by the applicant/complainant, Police had already lodged an other F.I.R. regarding the same occurrence on the statement of wife of one of accused persons against the applicant and others---Keeping in view the parties prior indulgence in the litigation, it was yet to be established that who was the actual aggressor---False implication of accused could not be ruled out in such like cases---Considering the attributions to respondents/accused, the Sessions Court had rightly confirmed the pre-arrest bail of accused persons---No illegality or infirmity was seen in the bail granting order passed by the Sessions Court---Considerations for cancellation of bail were altogether different from those for grant of bail---Plea for cancellation of bail could be raised on the grounds; that the order granting bail was illegal, perverse, passed in violation of the principles for grant of bail, factually incorrect or had resulted in miscarriage of justice that accused had misused the benefit of bail that there was possibility of repetition of the offence charged with or commission with any other offence; that there was apprehension of abscondance of accused; that accused was trying to tamper with the prosecution evidence---In the present case complainant had failed to substantiate any one of the said grounds for cancellation of bail---Finding the bail granting order passed by the Sessions Court in accordance with law, application for cancellation of bail was dismissed.

Malik Sadiq Mehmood Khurram for Petitioner.

Malik Muhammad Lateef, D.P.-G. with Muhammad Asghar, A.S.-I.

Rana Muhammad Jabbar for Respondents.

2011 P Cr. L J 1366

[Lahore]

Before Ijaz Ahmad and Kh. Imtiaz Ahmad, JJ

FALAK SHER alias BHOLLI---Petitioner

Versus

THE STATE-Respondent

Criminal Miscellaneous No. 1256-M of 2010, decided on 8th March, 2011.

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

----Ss. 561-A & 382-B---Inherent jurisdiction of High Court---Benefit of S.382-B, Cr. P. C., extension of---High Court under S.561-A, Cr.P.C. has the inherent power to extend the benefit of S.382-B, Cr.P. C. in appropriate cases even after the' decision of appeal---Only determining factor is to consider whether Trial Court had withheld the said benefit keeping in view the relevant facts.

Ehsan Ellahi and others v. Muhammad Arif and others 2001 SCMR 416; 1998 SCMR 1539; 1998 SCMR 1794; 2006 SCMR 1506; 2011 SCMR 38; 1997 SCMR 55; 2001 SCMR 416; PLD 2009 SC 460 and 2004 PCr.LJ 764 ref.

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

----Ss. 382-B & 561-A---Penal Code (XLV of 1860), S.308---Qatl-e-amd not liable to Qisas---Benefit of S.382-B, Cr.P.C., extension of---Record did not show that accused during trial had created any hindrance---On the date of announcement of written and signed judgment Trial Court appeared to have been annoyed due to absence of accused and without any solid reasons had denied the benefit of S.382-B, Cr. P. C. to him by writing a separate note, which was not part of the judgment---Court while deciding the appeal had also ignored this aspect of the case and the judgment was silent on this point---Order of Trial Court withholding the said benefit was not based on any sound reasoning---Benefit of S.382-B, Cr.P.C. was given to accused in circumstances.

Ehsan Ellahi and others v. Muhammad Arif and others 2001 SCMR 416; 1998 SCMR 1539; 1998 SCMR 1794; 2006 SCMR 1506; 2011 SCMR 38; 1997 SCMR 55; 2001 SCMR 416; PLD 2009 SC 460 and 2004 PCr.LJ 764 ref.

Muhammad Ali Ahmad Buzdar for Petitioner.

Tahir Mahmood for the Complainant.

Amjad Rafique, D.P.-G. for the State.

2011 P Cr. L J 1384

[Lahore]

Before Nasir Saeed Sheikh, J

MUHAMMAD IRFAN TUFAIL---Petitioner

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB, LAHORE and 5 others---Respondents

Writ Petition No. 2222/Q of 2011, decided on 3rd February, 2011.

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

----Ss. 405 & 406---Constitution of Pakistan, Art. 199---Criminal breach of trust---Constitutional petition---Quashing of F.I.R.---Accused named in the F.I.R. had allegedly given an undertaking to return Rs.35,02,000 to the complainant for return of defective bales of cotton supplied by his Firm to the complainant, but they failed to fulfil the obligation as narrated in the F.I.R.---Accused statedly had given a cheque of Rs.15,00,000 to the complainant, but took the same back upon an assurance to give another cheque of Rs. 25,00,000 and tore away the said cheque of Rs. 15,00,000-Prima facie, the provisions of S. 405, P.P.C. were attracted in the case---F.I.R. making out a prima facie case could not be quashed by High Court in exercise of its jurisdiction under Art. 199 of the Constitution---Constitutional petition was dismissed in limine in circumstances.

Muhammad Aslam (Amir Aslam) and others v. District Police Officer, Rawalpindi 2009 SCMR 141 and Muhammad Shahid Maqbool Bhatti v. Sajid Hussain and others 2010 MLD 722 distinguished.

The State through Prosecutor-General, Punjab, Lahore v. Sultan Ahmed and others PLD 2007 SC 48 and Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 rel.

(b) Constitution of Pakistan---

----Art. 199---Penal Code (XLV of 1860), S. 406---Constitutional jurisdiction---Scope---Criminal breach of trust---Quashing of F.I.R.---F.I.R. making out a prima facie case cannot be quashed in exercise of jurisdiction of High Court under Article 199 of the Constitution.

The State through Prosecutor-General, Punjab, Lahore v. Sultan Ahmed and others PLD 2007 SC 48 and Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 ref.

Amjad Farouck Bismell Rajpout for Petitioner.

Date of hearing: 3rd February, 2011.

2011 P Cr. L J 1395

[Lahore]

Before Shahid Hameed Dar, J

Mirza FARHAN BAIG---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 3105/B of 2011, decided on 20th May, 2011.

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

----S. 497(2)-Penal Code (XLV of 1860), S.489-F---Dishonestly issuing- a cheque---Bail, grant of---Further inquiry---Defence plea---Opinion of Investigating Officer---Scope---Accused had allegedly been abducted by the complainant and kept at a secret place for many days during the course of which the cheque in question was allegedly obtained from the accused---Accused had pointed out to Investigating Officer in his first version that he had left behind a written message at the place of his confinement, which could be recovered and on such information given by accused, a raid was conducted by Investigating Officer, which led to the recovery of a written document from the frame of a tube-light, which entailed detail of miseries of accused---Investigating Officer conducted investigation of the case in the light of respective pleas of both the parties and reached a conclusion that accused was not responsible for the crime reported against him by complainant---Investigating Officer had placed the name of accused in Column No.2 of Challan---Opinion of Investigating Officer did not bind the court in any manner but its persuasiveness could be peeped into by way of abundant caution, so as to assess its creditworthiness, though tentatively---Case of accused, in circumstances, called for further probe into his guilt within the scope of S. 497(2), Cr.P.C.-Bail was allowed to accused.

(b) Bail---

----Bail should not be withheld as a matter of punishment.

Qazi Misbah-ul-Hassan for Petitioner.

Mian Muhammad Awais Mazhar, Deputy Prosecutor-General Punjab for the State.

Muhammad Adeel Yaqoob for the Complainant.

Lal Hussain, A.S.-I. with record.

2011 P Cr. L J 1414

[Lahore]

Before Manzoor Ahmad Malik, J

BATI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 1 of 2010 in Criminal A. No. 590 of 2009, decided on 28th January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S. 302(b)---Qatl-e-amd---Suspension of sentence---Accused was about 7S years of age---According to the report of Medical Board accused was suffering from urethral stricture and urinary tract infection and his treatment was possible only in Urology Department of the hospital and not in the jail hospital---Sentence of accused was suspended in circumstances and he was released in bail accordingly.

Peer Mukaram-ul-Haq v. National Accountability Bureau (NAB) through Chairman and others 2006 SCMR 1225 rel.

Lal Din v. The State 1994 PCr.LJ 1796; Dr. Muhammad Ashraf v. The State 2001 MLD 1576; Hakim All Zardari v. The State 2003 PCr.LJ 154; Mufti Abdul Quddus and others v. The State 2004 YLR 1825; Zarin Khan v. The State 1980 SCMR 3Q5; Ghulam Raza v. Khuda Bux and another 2005 SCMR 1904; Inayatullah v. Muhammad Panah and others 1991 MLD 286 and Haji Rahimullah v. The State and another 1970 SCMR 514 ref.

Azam Nazeer Tarar for Petitioner.

Arshad Mehmood, D.P.-G. for the State.

Amer Mehmood Chaudhry for the Complainant.

2011 P Cr. L J 1421

[Lahore]

Before Ijaz Ahmad Chaudhry and Shahid Hameed Dar, JJ

HABIBULLAH -Petitioner

Versus

SPECIAL JUDGE and another---Respondents

Writ Petition No. 9690 of 2010, decided on 1st July, 2010.

Penal Code (XLV of 1860)---

----S. 365-A---Constitution of Pakistan, Art. 199---Kidnapping or abduction for extorting property, valuable security, etc.---Constitutional petition---Trial Court while accepting the application under S. 265-K, Cr.P.C. of the accused had ordered confiscation of Rs. 200,000 in favour of State, which complainant allegedly had paid to the accused and his companions as ransom for the release of his abducted son and which had been subsequently recovered from the accused during investigation and was now on superdari with the complainant---Said confiscation of the amount had been assailed---Some settlement outside the court appeared to have been arrived at between the parties, in consequence of which complainant and his co-witnesses had exonerated the accused disowning the prosecution case---Said witnesses resultantly had been declared hostile by the Trial Court directing both the parties to cross-examine them---Defence Counsel had refused to test the veracity of the statements of the complainant and other witnesses by cross-examining diem---No circumstance was available to justify the claim of the accused in respect of the alleged ransom amount---U-turn taken by the complainant during the trial had also indicated that he must have been compensated by the accused to favour them in the case---Chance lost, could not be revived through the Constitutional petition---Accused petitioner seemed to be trying his luck rather than following a lawful pursuit---Impugned order was based on sound and rational reasons and did not suffer from any illegality---Constitutional petition was dismissed in circumstances.

Malik Muhammad Arshad Kundi for Petitioner.

Munawar Hussain Sindhu, A.A.-G. for Respondents.

2011 P Cr. L J 1434

[Lahore]

Before Ch. Iftikhar Hussain, J

BABAR RASHEED---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 3075-B of 2011, decided on 30th March, 2011.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324/148/149---Attempt to commit qatl-e-amd, rioting armed with deadly weapons---Bail, grant of---Further inquiry---Benefit of doubt---No specific injury had . been attributed to accused on the person of the complainant---Medico-legal report of the complainant was inconsistent with the incident mentioned in the F.I.R.---Benefit of every doubt had to be given to accused even at bail stage---During investigation accused was not found to be armed at the time of incident---Guilt of accused needed further probe as contemplated under S. 497(2), Cr.P.C.---Accused was not a previous convict and was behind the bars for the last two months and ten days---Bail was allowed to accused in circumstances.

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

----S. 497---Penal Code (XLV of 1860), Ss. 324/148/149---Attempt to commit qatl-e-amd, rioting armed with deadly weapons---Bail---Benefit of doubt---Benefit of every doubt even at bail stage has to be given to accused.

Ch. Imran Raza Chadhar for Petitioner.

Khurram Khan, Deputy Prosecutor-General for Respondent No.1/State with Muhammad Naseer, A.S.-I. with Police Record.

Nemo for Respondent No.2/Complainant.

2011 P Cr. L J 1451

[Lahore]

Before Ch. Iftikhar Hussain, J

ABID HUSSAI N and 2 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 3331-B of 2011, decided on 20th April, 2011.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-F(i), 337-L(2), 354, 379, 452 & 148---Causing Shajjah and other hurt, assault, theft, house-trespass---Pre-arrest bail, confirmation of---Accused were young students of 6th and 9th class, respectively---Headmaster of the school concerned, issued certificate stating therein that accused at the relevant time were in the school---Headmaster of the school was a responsible officer and he must have issued the certificate according to the record---Investigating Officer had stated that as per his investigation, none of accused had taken away the gold ear-ring of the mother of the complainant---Case of accused person was of further inquiry into their guilt which was covered under S.497(2), Cr.P.C.---Young age of accused who were students, was in favour of accused in the matter---Accused had joined the investigation and in such circumstances nothing was to be recovered from them---Accused having made out a case for grant of pre-arrest bail, ad interim pre-arrest bail already granted to them was confirmed, in circumstances.

Rana Muhammad Saeed Akhtar for Petitioners.

Khurram Khan, D.P.G. with Muhammad Aslam, SI/IO with police record for Respondent No. 1/State.

Qaisar Nawaz Khan Niazi for Respondent No. 2/Complainant.

2011 P Cr. L J 1466

[Lahore]

Before Sagheer Ahmad Qadri and Sardar M. Shamim Khan, JJ

MUHAMMAD BAKHSH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 447 of 2005, heard on 6th April, 2010.

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

----S. 9(c)---Possessing and trafficking of narcotics---Appreciation of evidence---Benefit of doubt---During investigation, it transpired that alleged Charas recovered from the possession of accused, was in fact owned by another person and accused was simply a carrier having received rent for transportation of the load of the camel---Seventeen packets containing Charas were allegedly recovered from possession of accused, but only 10-grams were separated for analysis through Chemical Examiner by mixing small quantity from all the packets---As from all the packets the Charas was not separated for analysis, so it could not be ascertained that all the packets contained Charas---Report of Chemical Examiner placed on record was duplicate one, which was contrary to mandatory provisions of S.510, Cr.P.C.---Prosecution did not prove the report of Chemical Examiner by examining the Chemical Examiner as a witness---Report of Chemical Examiner had also shown that it pertained to other case which, created doubt regarding its genuineness---Prosecution having failed to prove its case beyond any reasonable doubt, accused was acquitted by giving hint benefit of doubt.

2010 YLR 578; PLD 2003 Kar. 230; 2010 PCr.LJ 360; 2005 PCr.LJ 726 and PLD 2004 SC 856 ref.

Atta ul Manan Malik for Appellant.

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

Date of hearing: 6th April, 2010.

2011 P Cr. L J 1482

[Lahore]

Before Sagheer Ahmad Qadri, J

MUHAMMAD SHAFI---Petitioner

Versus

DISTRICT COORDINATION OFFICER, MULTAN and 5 others---Respondents

Writ Petitions Nos. 4765 and 4764 of 2010, decided on 1st June, 2010.

West Pakistan Maintenance of Public Order Ordinance (XXXI of 1160)---

----S. 3---Constitution of Pakistan, Art.199---Constitutional petition---Detention order---Impugned detention orders were based on the recommendation of City Police Officer, wherein it was only mentioned that one of the petitioners was found involved in three criminal cases while the other was shown involved in two criminal cases relating to theft of the cattle---Except those allegations and the registration of the F.I.Rs., which were pending before the concerned courts for trial, no evidence was available against both the petitioners to connect them with any of the activities which could be termed as prejudicial to public safety or maintenance of public order---No conviction had been passed against the petitioners in any of the said cases---Mere fact that the petitioners had been involved in a number of criminal cases, was per se not a valid ground for preventive detention---When a person had been prosecuted on a criminal charge the same material should not in all fairness be taken as a reasonable basis for ordering his detention---Where definite charges were brought against the detenu for substantive offences, and detenu was undergoing prosecution therefor, it would ordinarily not be open to the authorities to use such charge as ground of preventive detention under West Pakistan Maintenance of Public Order Ordinance, 1960---If the prosecution was able to prove a criminal charge against accused, then he could be convicted, otherwise acquitted, but if he was detained prior to proving the charge, it would violate the principles of the criminal administration of justice---Until and unless there were convictions and tangible, concrete and substantial material present to warrant detention of a person coupled with the fact that said material should positively be brought on record the liberty of a person could not be curtailed---Impugned orders whereby the petitioners were directed to be detained, were set aside and declared as illegal, without any lawful justification and ineffective upon the rights of the petitioners---Petitioners were directed to be released, in circumstances.

Arbab Akbar Adil v. Government of Sindh through Home Secretary, Government of Sindh, Karachi PLD 2005 Kar. 538; Haq Dad Khan v. District Magistrate, Mianwali 1997 PCr.LJ 1288 and Muhammad Mushtaq v. District Magistrate, Sheikhupura and others 1997 MLD 1658 ref.

Muhammad Javaid Iqbal Adum for Petitioner.

Mirza Saleem Baig, Additional Advocate-General and Rab Nawaz, D.S.P. for Respondents.

2011 P Cr. L J 1495

[Lahore]

Before Mazhar Iqbal Sidhu, J

Mst. KAUSAR BIBI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 68-J of 2007, heard on 25th January, 2011.

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

---Ss. 308 & 201--- Criminal Procedure Code (V of 1898), Ss.561-A, 237, S35 & 537---Qatl-e-amd not liable to Qisas, causing disappearance of evidence of offence---Appreciation of evidence---Versions given by the complainant in the F.I.R. and in the private complaint were self-contradictory as to the place of making extra-judicial confession by the accused and her co-accused---Said extra-judicial confession being a joint one was also inadmissible in evidence---Co-accused had been acquitted by Trial Court and the appeal filed against their acquittal had been dismissed by High Court---Such piece of prosecution evidence, therefore, could not be believed against the accused without an independent corroboration, which lacked in the case---Accused was consequently acquitted of the charge under S.308, P.P.C.---Accused, after her arrest had got recovered the dead body of the deceased after digging out earth from the courtyard of her house---Said recovery of the dead body, no doubt, did not imply that deceased had been murdered by the accused, but the prosecution evidence and the circumstances of the case had proved the murder having been committed by her---Trial Court had not framed charge against the accused under S.201, P.P.C. for causing disappearance of the dead body of the deceased---Appellate Court had ample powers under Ss.561-A, 237, 535 and 537, Cr.P.C. to look into the material available on record and convict and sentence the accused in accordance with law---Mere non framing of the charge for a particular offence would be an irregularity which would not vitiate the trial---Resultantly, accused was convicted under S.201, P.P.C. and sentenced to the imprisonment upto the extent having been undergone by her, with a fine of Rs.1,00,000 only---Appeal was disposed of accordingly.

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

----Ss. 561-A, 237, 535 & S37---Penal Code (XLV of 1860), Ss. 201 & 308---Trial Court had not framed charge against the accused under S.201, P.P.C. for causing disappearance of the dead body of the deceased---Appellate Court had ample powers under Ss.561-A, 237, 535 and 537, Cr.P.C. to look into the material available on record and convict and sentence the accused in accordance with law---Mere non-framing of the charge for a particular offence would be an irregularity which would not vitiate the trial.

Ch. M. Shall Meo for Appellant.

Khalid Parvez Uppal, D.P.-G. for the State.

Mian Noor Ali Wattoo for the Complainant.

Date of hearing: 25th January, 2011.

2011 P Cr. L J 1510

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

MUHAMMAD BASHIR---Petitioner

Versus

THE STATE and 6 others---Respondents

Criminal Miscellaneous No. 13262-BC of 2010, decided on 8th December, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Illegal Dispossession Act (XI of 2005), S.3---Illegal possession of property---Cancellation of bail--- Grounds---Bail could be cancelled, if the same had been granted in a capricious manner, without assigning reasons; or on the basis of perverse or invalid reasons; or accused had attempted to tamper with the prosecution evidence and hampered investigation; accused extended threats to the witnesses had committed or attempted to commit the same offence; or if he absconded after grant of bail---If bail granting order was without jurisdiction, having been passed without observing the mandatory provisions, High Court had ample powers to entertain application under S.497(5), Cr.P.C.---Counsel for the petitioner/complainant had contended that accused persons being influential persons, were trying to tamper with the prosecution evidence, but no document had been produced by the complainant in support of such contention---Impugned bail granting order was well-versed and the reasons advanced by the Trial Court, were well-founded, except qua terming the offence in question as bailable---Any finding or observation at bail stage was of tentative in nature; and that would not put or imprint any impact on the trial--- Petition for cancellation of bail, was dismissed, in circumstances.

Shaukat Rasool v. The State and another PLD 2009 Lah. 590; Noor Ahmed v. Ghulam Mustafa and another 2009 YLR 1414; Fazal Ahmed v. Arif Anwar Saeed and another 2010 SCMR 1584 and Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

Hafiz Naemat Ullah and Ch. Imran Arshad for Petitioner.

2011 P Cr. L J 1522

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwaarul Haq, JJ

RASHID BASHIR and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeal No. 1810 and Murder Reference No. 772 of 2005 and Criminal Revision No. 219 of 2006, heard on 22nd November, 2010.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Necessary details of the occurrence, were duly mentioned in promptly recorded F.I.R., which had ruled out any chances of false implication of accused and had established that complainant had witnessed the occurrence---Ocular account was fully supported by the medical evidence---Complainant who was real brother of the deceased and other prosecution witness, who was his co-villager, had given plausible explanation of their presence at the place of occurrence---Presence of said two witnesses at the place of occurrence was further corroborated by the other circumstances---Complainant though was related to the deceased, but mere relationship of the witness was not sufficient to discard his evidence---Both said witnesses had no previous enmity with accused; and there was no reason of his false implication by them in the case---Present was a case of single accused and in such like cases, it was impossible that kith and kin of the deceased would let off the real culprit and substitute some innocent person---Statements of defence witnesses which were absurd, were not worth consideration---Even otherwise the prosecution story seemed more probable, if the defence plea was put in juxtaposition with the prosecution story---Prosecution, in circumstances, had proved its case against accused beyond any shadow of doubt---Conviction of accused under S.302(b), P.P.C., was maintained, but his punishment of death was altered to punishment for life, in circumstances of the case.

Haji v. The State 2010 SCMR 650; Khalid Saif Ullah v. The State 2008 SCMR 688 and Irshad Ahmad and others v. The State and others PLD 1996 SC 138 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, quantum of---No previous enmity existed between the deceased and accused---Investigating Officer in his cross-examination had admitted that the occurrence took place just at the spur of movement and no previous grudge and grouse existed between the parties---Incident resulted because of mere altercation and accused caused chhuri blows which proved fatal---Chhuri was an ordinary one which was easily available in the homes---Such circumstance, had shown that there was no premeditation on the part of accused---Case, in circumstances, was not of capital punishment---Accused was entitled for the benefit of any doubt as an extenuating circumstance, while deciding question of sentence---Case being not of capital punishment, while maintaining conviction of accused under S.302(b), P.P.C., his sentence was altered from punishment of death to imprisonment for life.

Muhammad Arshad and 2 others v. The State PLD 1996 SC 122; Mir Muhammad alias Miro v. The State 2009 SCMR 1188; Iftikharul Hassan v. Israr Bashir and another PLD 2007 SC 111; Ghulam Muretaza v. State 2004 SCMR 4; Faqir Ullah v. Khalil-uz-Zaman 1999 SCMR 2203; Muhammad Akram v. State 2003 SCMR 855; Abdus Salam v. State 2000 SCMR 338; Sharafat Ali Khan v. The State 2010 SCMR 1205 and Iftikhar Ahmed Khan v. Asghar Khan and another 2009 SCMR 502 ref.

Zafar Ahmad Gondal for Appellant (in Criminal Appeal No.1810 of 2005).

Ch. Muhammad Mustafa, Deputy Prosecutor-General for the State.

Rana Rashid Akram Khan for the Complainant.

Rana Rashid Akram Khan for Petitioner (in Criminal Revision No. 219 of 2006).

Date of hearing: 22nd November, 2010.

2011 P Cr. L J 1540

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwaarul Haq, JJ

MUHAMMAD RAFIQUE SHAH alias HEERA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 4-J of 2008 and Murder Reference No. 614 of 2006, heard on 9th June, 2011.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---No time of occurrence was mentioned in the F.I.R.---Prosecution witnesses while appearing before the court had made dishonest improvements on material aspects of the case---Draftsman, who had prepared the site plan, had admitted that no source of light was seen or mentioned by him; and that neither the premises was electrified nor any such source was mentioned by the prosecution witnesses---Fact that there was no source of light at place of occurrence at relevant time was established---Prosecution witnesses could easily overpower accused, who was not carrying any weapon, but despite that they did not try to intercept accused---Prosecution had failed to prove the motive part of the occurrence---Recovery of bricks at the instance of accused also carried no value as it was the case of the complainant himself that at the time of occurrence accused was holding single brick in his hand, which was thrown by him at the spot---Investigating Officer had offered a very novel excuse for non-recovery of the bricks at the time of his first inspection---Recovery of two blood-stained bricks, in circumstance, at the instance of accused and report of chemical examiner, were of no avail for the prosecution---Medical evidence could confirm the ocular evidence with regard to the receipt of the injury, kind of weapon, duration between the injury and the death, but it could not connect accused with commission of crime---Medical evidence alone could not corroborate as he injury could not speak of its author; and it did not establish the identity of accused---Prosecution story as narrated in the F.I.R., did not appeal to reasons and was doubtful in nature---Single instance causing a reasonable doubt in the mind of the court, would entitle accused to the benefit of doubt, not as a matter of grace, but as a matter of right-Conviction and sentence recorded by the Trial Court against accused through impugned order, were set aside and accused was acquitted of the charge.

Liaquat Ali v. The State 2008 SCMR 95; Mst. Shamim and 2 others v. The State and another 2003 SCMR 1466: Muhammad Akram v. The State 2009 SCMR 230 and Muhammad Luqman v. The State PLD 1970 SC 10 ref.

Maqbool Ahmad Qureshi for Appellant.

Shahid Bashir, Deputy Prosecutor-General for the State.

Date of hearing: 9th June, 2011.

2011 P Cr. L J 1549

[Lahore]

Before Manzoor Ahmad Malik, J

MUHAMMAD YAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 269-B of 2011, decided on 27th January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.496-A---Enticing or taking away or detaining with criminal intent a woman---Pre-arrest bail, grant of---Alleged abductee, daughter of complainant, in her two statements made before Magistrate on different dates had not mentioned anything regarding her abduction, whereas in her subsequent statements recorded by the Police and under S.164, Cr.P.C. she had implicated the accused---Mala fides on the part of the complainant for false implication of accused could not be ruled out---Ad interim pre-arrest bail already allowed to accused was confirmed in circumstances.

Malik Muhammad Ghazanfar Ali Khokhar for Petitioner.

Arshad Mahmood, Deputy Prosecutor-General for the State.

Bashir Ahmad Qureshi for the Complainant.

2011 P Cr. L J 1555

[Lahore]

Before Sh. Najamul Hasan and Rauf Ahmad Sheikh, JJ

DILBER KHAN and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeal No. 1961 of 2005, Murder Reference No. 19 of 2006 and Criminal Revision No. 1020 of 2005, decided on 22nd March, 2011.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Eye-witnesses had narrated the occurrence in a straightforward manner and could not be disbelieved only due to their relationship with the deceased, when they had no previous grudge or animosity against the accused---Absence of report of Forensic Science Laboratory would not weaken the prosecution case as no crime empty was recovered from the place of occurrence---Complainant being the real brother of the deceased could not substitute the real culprit with any other person---Accused had been proved by cogent and reliable evidence to have committed the qatl-e-­amd of the accused---Conviction of accused was consequently maintained---Accused was only 18 years and a few months old at the time of occurrence---Motive as set up in the F.I.R. was not proved---Death sentence awarded to accused was reduced to imprisonment for life in circumstances.

Noor Muhammad v. The State and another 2010 SCMR 97 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Motive, absence or weakness of---Effect---Absence or weakness of motive does not cast any doubt on the prosecution case and it should not fail on this ground, but once the motive is set up and the same is not proved, then prosecution must suffer for it and it is a strong mitigating circumstance in favour of accused.

Noor Muhammad v. The State and another 2010 SCMR 97 ref.

Hafiz Khalil Ahmad and Haji Muhammad Anwar for Appellants.

Shahid Bashir Chaudhry, D.P.-G. for the State.

Dr. Abdul Basit for the Complainant.

Dates of hearing: 21st and 22nd March, 2011.

2011 P Cr. L J 1567

[Lahore]

Before Mazhar Iqbal Sidhu, J

ASIM alias AHMAD BAKHSH---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No. 160-B of 2011, decided on 28th February, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 392/411---Robbery, dishonestly receiving stolen property---Bail, grant of---Delay of two months in lodging the F.I.R. was not reasonably explained---In the first instance accused had been released on bail by Sessions Court, which had subsequently been cancelled by the same court---Recoveries had been made from the accused---Source through which the complainant knew about the involvement of accused in the case, had not been disclosed by him in the F.I.R.---Four prosecution witnesses in their statements recorded by the Investigation Officer after three days of the registration of the F.I.R., had implicated the accused in the crime---Offence under S. 392, P.P.C. needed further inquiry, whereas offence under S. 411, P.P.C. did not fall within the prohibility clause of S. 497, Cr.P.C.---Accused was not a previous convict---Bail was granted to accused in circumstances.

Noor Muhammad v. The State 2008 SCMR 1556 rel.

Shahzad-ul-Haq Qureshi for Petitioner.

Malik Dost Muhammad Awan for the Complainant.

Khalid Pervaiz Uppal, D.P.-G. along with Altaf, S.-I. with Record.

2011 P Cr. L J 1572

[Lahore]

Before Ch. Muhammad Tariq, J

Mst. RUQIYA BEGUM---Petitioner

Versus

SUPERINTENDENT DISTRICT JAIL, JHELUM---Respondent

Writ Petition No. 582 of 2011, decided on 25th March, 2011.

Pakistan Prisons Rules, 1978---

----Rr. 161 & 152---Penal Code (XLV of 1860), Ss. 302(b)/149 & 148---Constitution of Pakistan, Art. 199---Qatl-e-amd, rioting armed with deadly weapons---Prevention of transfer of prisoners from one jail to another jail---Husband and four sons of the petitioner sentenced to imprisonment for life, were confined in District Jail, J'---Respondent Superintendent of the said jail through the present petition was sought to be restrained from transferring the prisoners to any other jail till the final disposal of their criminal appeal before High Court---Rule 161 of Pakistan Prisons Rules, relied upon by petitioner, was directory in nature, which provided that ordinarily the prisoners shall not be transferred from one prison to another prison, if their appeal was pending---While Rule 152 of Pakistan Prisons Rules and affiliation policy provided that convict prisoners sentenced to more than ten years were required to be shifted to Central Jail, because long term prisoners could not be retained at District Jail, as required under the affiliation policy---Further, shifting of the aforesaid prisoners from District Jail, to Central Jail, 'A', would not create any inconvenience to the petitioner, which had better facilities and was not much far from District JailJ'---Constitutional petition was dismissed accordingly.

Ch. Farhan Mudassar for Petitioner.

Shahid Mahmood Abbasi, A.A.-G. for Respondent.

2011 P Cr. L J 1593

[Lahore]

Before Sagheer Ahmed Qadri, J

IMTIAZMASIH and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 298 of 2008, heard on 7th February, 2011.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence--Recovery of 235 Kg of "Charas" and 7 Kg of opium from the possession of the accused while travelling in a car, had been proved by the consistent testimony of the police officers---Discrepancies in the recovery evidence in time, manner and arrest of accused, being of minor nature, could not destroy the evidentiary value of recovery witnesses---Contention that despite having received prior information complainant police officer had not associated any public witness with the recovery proceedings, was not sustainable as S. 25 of the Control of Narcotic Substances Act, 1997, had excluded the application of S. 103, Cr.P.C. to such cases---Even otherwise, police now-a-days could not possibly associate any public witness in such like cases, as people generally would not cooperate with the police due to fear of earning any enmity with the drug paddlers---In view of the bare denial of the recovery of the narcotics by the accused, they could not object to the insufficiency of sample of ten grams of each narcotic, sent to Chemical Examiner---Reports of Chemical Examiner, therefore, had been rightly believed by Trial Court---Police Officer who would arrest the accused and recover the narcotic substance from them naturally had to act as complainant and investigation had to be carried out there and then--Unless actual prejudice was proved to have taken place on account of the said duel function of the police officer, trial could not be taken as vitiated---Convictions and sentences of accused were upheld in circumstances.

State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408 and Aksar Khan v. The State 1955 MLD 1237 ref.

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

----S. 9(c)---Possession of narcotics---Dual charge of police officer---Police officer is not legally prohibited to be a complainant, if he is a witness to the commission of the offence and also to be an Investigating Officer, so long as it does not in any way prejudice the accused.

State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408 and Aksar Khan v. The State 1955 MLD 1237 ref.

Syed Nayyar Hussain for Appellant.

Muhammad Usman, Deputy Prosecutor-General for the State.

Date of hearing: 7th February, 2011.

2011 PCr.LJ 1619

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

MURTAZA and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 12648-B of 2010, decided on 3rd December, 2010.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.376 & 496-A---Rape and enticing a woman---Bail, grant of---Further inquiry---Accused persons though were nominated in the F.I.R., but there was no mention of date and time of occurrence in the same---Crime report had revealed that whole family had been roped in the case---Alleged abductee, while appearing before the court, in addition to swearing affidavit, had also made statement that she totally exonerated accused persons named in the crime report---When no allegation of zina had been levelled by the alleged abductee against any of accused persons; and one of accused was a woman, case against accused, squarely became one of further inquiry into their guilt, which fact had been ignored by the Trial Court---Both accused were admitted to bail after arrest, in circumstances.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.376 & 496-A---Rape and enticing a woman---Bail, grant of---Principles---Further inquiry---While deciding bail petition, the court was to see from the facts floating on the record, whether case of accused fell within the ambit of subsection (2) of S.497, Cr.P.C. or otherwise---Both accused, in the present case were refused post - arrest bail by the Trial Court on 19-10-2010 and till 3-12-2010---Case of accused persons was covered under S.497(2), Cr.P.C. but they suffered the incarceration of being behind the bars for about 2 months and 22 days, and that loss could not be compensated/repaired by any manner whatsoever---Bail was granted to accused persons and office was directed to send a copy of present order to the Trial Court for future guidance and to remain careful in future.

Ibrahim v. Hayat Gul and others 1985 SCMR 382; Shahzaman and 2 others v. The State and another PLD 1994 SC 65 and Sikandar A. Karim v. The State 1995 SCMR 387 ref.

Qamar Parvez Zia for Petitioners.

Mian Muhammad Awais Mazhar, Deputy Prosecutor-General Punjab.

Rai Haider Ali Khan Kharal for the Complainant.

Muhammad Aslam, Inspector with Police Record.

2011 P Cr. L J 1631

[Lahore]

Before Ijaz Ahmed, J

SHABBIR HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 661-B of 2011, decided on 14th June; 2011.

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

----Ss. 497, 195 & 196---Penal Code (XLV of 1860), Ss.295-A & 298-A---Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs, use' of derogatory remarks in respect of holy personages---Bail, grant of---Further inquiry---Recording of F.I.R. and taking of cognizance are two separate concepts---First concept required immediate steps to be taken, while the second concept did not require any immediate steps---Before taking the cognizance of a case any irregularity, not vitiating the trial, might be rectified---Sanction for prosecution of the instant case had been given by the DCO, which had fulfilled the requirement of law---Smooth exchange of hot words by both the parties and pocketing of the abuses by the complainant hurled by the accused, was beyond conception---Possibility that the case had been registered on account of the hatred and intolerance nursed by both the sects against each other could not be ruled out---Case against accused required further inquiry---Accused was admitted to bail in circumstances.

Zafar Iqbal v. The State 2009 YLR 1531; Mst. Sardar Bibi v. The State 2007 PCr.LJ 342; Abdul Razzaq v. The State PLD 2005 Lah. 631 disagreed.

Bashir Ahmad v. The State 2000 PCr.LJ 902; Sarfraz Ahmad and 7 others v. The State 1992 PCr.LJ 2346 and Muhammad Bashir alias Bakola and 8 others v. Superintendent of Police, City Division, Lahore and 9 others 2007 PCr.LJ 864 ref.

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

----Ss. 154, 195 & 196--- Recording of F.I.R. andtaking of cognizance'--- Distinction--- Recording of F.I.R. and taking of cognizance are two separate concepts roomed in two separate compartments---First compartment requires the immediate steps to be taken, while the second compartment does not require such immediate steps---Before taking the cognizance of a case any irregularity incurred that does not vitiate the trial, may be rectified.

Zafar Iqbal v. The State 2009 YLR 1531; Mst. Sardar Bibi v, The State 2007 PCr.LJ 342; Abdul Razzaq v. The State PLD 2005 Lah. 631 disagreed.

Bashir Ahmad v. The State 2000 PCr.LJ 902; Sarfraz Ahmad and 7 others v. The State 1992 PCr.LJ 2346 and Muhammad Bashir alias Bakola and 8 others v. Superintendent of Police, City Division., Lahore and 9 others 2007 PCr.LJ 864 ref.

Syed Wust-ul-Hasan for Petitioner.

Shaukat Aziz Siddiqui for the Complainant.

Kh. Sohail Iqbal, D.P.-G. with Nazar, S I.

2011 P Cr. LJ 1638

[Lahore]

Before Sardar Muhammad Shamim Khan, J

YASIR ALI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 4233-B of 2010, decided on 11th January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 365-B/380/376---Kidnapping, abducting or inducing woman to campel for marriage etc., theft in dwelling house, rape---Pre-arrest bail, grant of---Further inquiry---Matter was reported to the police with an unexplained extra-ordinary delay of three days---No evidence was available to show that the alleged abductee was either enticed away or forcibly abducted by accused---Abductee had filed a writ petition in High Court against her father and police restraining them to harass her and threaten her to get divorce from the accused, with whom she had married out of her own free will---Abductee had also attached her affidavit in this regard with the constitutional petition---Accused as well as the abductee had also jointly filed another constitutional petition for quashing the present F.I.R.---Statement of the abductee recorded under S. 161, Cr.P.C. was contrary to the version of the F.I.R. put forth by the complainant---Prosecution story was in conflict with medical evidence---During investigation accused had produced his photographs with the abductee showing their marriage---Accused according to F.I.R. kept sitting in the car parked in the street at the time of occurrence and he was not alleged to have entered the house of the complainant, so he could not take away the gold ornaments and the cash of the complainant---Guilt of accused, thus, needed further probe and he was granted pre-arrest bail in circumstances.

Altai Ibrahim Qureshi for Petitioner.

Sagheer Ahmad Bhatti for the Complainant.

Hassan Mahmood Khan Tareen, learned D.P.-G. Saeed Khalid, A.S.-I. with Record.

Yasir Ali, petitioner on interim bail.

2011 P Cr. L J 1653

[Lahore]

Before Mazhar Iqbal Sidhu, J

MANSOOR AHMAD---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No. 190-B of 2011/BWP, decided on 21st February, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/506-B/148/149/ 447/511/109---Qatl-e-amd, criminal intimidation, rioting armed with deadly weapons, criminal trespass, attempt, to commit offences, abetment---Bail, grant of---Further inquiry---Case was of divergent versions and it would be ascertained by the Trial Court as to which one of them was correct by holding a trial---Prima facie, therefore, case of accused had become that of further inquiry, as envisaged under S.497(2), Cr. P. C. ---Nothing had been recovered from the accused during course of investigation---Investigation in the case was complete---Accused was admitted to bail in circumstances.

Sardar M. Shehzad Khan Dhukkar and Ghazanfar Ali Khan for Petitioner.

Malik Sadiq Mehmood Channer for the Complainant.

Khalid Pervaiz Uppal, D.P.-G. with Abdul Majeed, S.-I. for the State.

2011 PCr.LJ 1660

[Lahore]

Before Mehmood Maqbool Bajwa, J

MUHAMMAD KHALID---Petitioner

Versus

S.H.O. and others---Respondents

Writ Petition No. 3485-Q of 2011, decided on 8th June, 2011.

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

----S. 154---Information in cognizable cases---If oral information regarding commission of a cognizable offence was communicated to an officer incharge of Police Station, same would be reduced into writing by him; or under his direction and be read over to the informant---No line of distinction and demarcation had been made in S. 154, Cr.P.C. putting embargo to lay information before Police, even after the registration of first report regarding the same occurrence.

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

----S. 324/34--- Criminal Procedure Code (V of 1898), Ss.22-A & 561-A---Constitution of Pakistan, Art.199---Constitutional petition---Attempt to commit qatl-e-amd---Quashing of F.I.R., petition for---Case was of two versions, one was introduced by Police Officer being complainant of F.I.R., suggesting that son of complainant sustained injuries due to aerial firing made by accused in a marriage ceremony while second version was introduced by the complainant suggesting altogether different story with reference to date, time and venue of occurrence, attributing direct firing to accused, aiming at his son due to previous rivalry and enmity---Version introduced at the instance of complainant/father of injured, entirely had given a different version suggesting commission of cognizable offence in the manner and style highlighted in the application filed under S.22-A, Cr.P.C.---Stance taken by complainant' being not an elaboration, explanation or amplification of the first F.I.R., there was no legal bar to issue direction for registration of second F.I.R.---Order for registration of second F.I.R., by Justice of Peace made on the application of complainant/father of the injured, was hardly subject to any exception; and consequently question of quashing of F.I.R. did not arise at all.

Wajid Ali Khan Durrani and others v. Government of Sindh and others PLD 1997 Kar. 119; Rana Ghulam Mustafa v. Station House Officer, Police Station, Civil Line, Lahore and 2 others PLD 2008 Lah, 110; Rahat Javiad v. District Police Officer, Nankana Sahib and 6 other: 2010 PCr.LJ 1629 and Mushtaq Hussain and others v. The State 2011 SCMR 45 fol.

Rai Muhammad Hussain Khan Kharal for Petitioner.

Rana Sajid Hussain for Respondent No.3.

Rana Shamshad Khan, A.A.-G. along with Akram, S.-I. with Record.

2011 P Cr. L J 1665

[Lahore]

Before Shahid Hameed Dar, J

Syed ASHIQ HUSSAIN SHAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 486-B of 2011, decided on 28th April, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail, refusal of---Bail application was pressed on medical ground alone---Accused, according to his medical history, was suffering from the disease of which at present almost every person was a patient, because of the stress and strain prevailing all around---Many factors Wright contribute towards developing hypertension and diabetes, crucially being the stress---Socio-economical stress might grip a person in terms of falling prey to said diseases---Medical Officer had not stated that the condition of accused was serious, his treatment was not possible in jail hospital or that every day he passed in jail had hazardous effect on his health and life---Accused, therefore, could not be considered a sick and infirm person within the scope of S.497(1), Cr.P.C.---Weeping of the accused due to his imprisonment was natural---Everyone confined in jail would behave in the same way-Bail was declined to accused in circumstances.

Muhammad Hussain and others v. The State 1992 PCr.LJ 1683; Inayat Ullah v. The State and another 1997 PCr.LJ 1366; Muhammad Ashraf Khan v. The State 1990 PCr.LJ 169; Rai Ata Ullah Khan v. Raja Anar Khan and another 1979 SCMR 471; Zakhim Khan Masood v. The State 1998 SCMR,1065 and The State v. Haji Kabeer Khan NLR 2005 Criminal 399 ref.

Faisal Khan Niazi for Petitioner.

Malik Riaz Ahmad Saghia, Deputy Prosecutor-General Punjab with Muhammad Bashir, S.-I. for the State.

Kashif Ali Malik for the Complainant.

2011 P Cr. L J 1678

[Lahore]

Before Sagheer Ahmad Qadri, J

MUHAMMAD SARWAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 1170-B of 2010, decided on 18th May, 2010. -

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.420, 467, 468 & 471---Cheating, forgery, using as genuine a forged document---Pre-arrest bail, grant of---Further inquiry---Accused had entered into an agreement to sell vide agreement/Iqrarnama, which was executed and signed by accused---No forgery whatsoever was shown or apparent on the record committed by accused in preparation of said document---Said Iqrarnama/agreement to sell did not fall within any definition of `forgery' and "making of false document"---Such was a document which was written and executed by accused to sell a piece of land to complainant; at the best it could be said that although land in question which accused agreed to sell to the complainant, was not owned by him, but his sons; and he was authorized to enter into such an agreement to sell---Counsel for accused during his arguments had referred to a document i.e. Special Power of Attorney and subsequently executed a General Power of Attorney by sons of accused in his favour, whereby he was authorized to do so---Accused, prima facie, could be attributed for the commission of an offence under S.420, P.P.C. as he allegedly cheated the complainant and dishonestly induced for delivery of property i.e. the cash amount---Offence under S.420, P.P.C., was a bailable offence---Even during the pendency of bail application, accused offered to get transferred the plot in question in the name of the complainant,' but he perhaps under some misconception or reasons best known to him, was not ready to accept that offer---Case of accused, in circumstances, required further probe falling under S.497(2), Cr. P. C. ---Levelling of allegations against a person and registration of a case on the basis of those allegations and facts by Police under offences which did not attract itself, would make out a case of mala fide on the part of complainant and Police, which factor was available on the record---Interim pre-arrest bail already granted to accused was confirmed, in circumstances.

Tapir Mehmood for Petitioner.

Muhammad Ameer Bhatti for the Complainant.

Rana Kashif Saleem Arfaa, learned Law Officer for the State.

Ali Sher, S.-I.

2011 P Cr. L J 1687

[Lahore]

Before Abdul Waheed Khan, J

ADIL alias ADLA---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 2570/M of 2010, heard on 24th May, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 397 & 561-A---Penal Code (XLV of 1860), Ss.393, 392 & 411---Attempt to commit robbery, robbery, dishonestly receiving stolen property---Direction sought for sentences to run concurrently---Accused convicted in three different cases by two different courts had sought concurrent running of his sentences---Sentences awarded to accused had attained finality---No such concession had been granted to accused during the hearing of his appeals or revision by High Court---High Court had the discretion to direct the running of the subsequent sentences concurrently with the earlier sentence, but the same could not be exercised mechanically as a matter of routine---Such concession being only an exception could not be applied as a rule---Discretion could be exercised by the court on having found that all the offences had been committed in the course of realization of common object, which the accused wanted to achieve at a particular point of time---Offence committed by the present accused of one F.I.R. was not interconnected with the offences committed of two other F.I.Rs. registered at different Police Stations---All the offences had been committed with distinguishable and separate criminal objectives sought to be achieved at three different places and points of time---Accused' convicted in different cases was not entitled for the running of his sentences concurrently, when the occurrences were not the result of series of acts towards the commission of offence, the same were not interconnected and the dates, time and places of occurrence were entirely different---Application was dismissed in circumstances.

Rana Shahbaz Ali Khan for Petitioner.

Nisar Ahmad Virk, D.P.-G. for Respondents.

Date of hearing: 24th May, 2011.

2011 P Cr. L J 1710

[Lahore]

Before Sh. Najam-ul-Hasan and Rauf Ahmad Sheikh, JJ

MUHAMMAD LAWAL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 101-J of 2005, heard on 20th April, 2011.

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

----S. 9(c)---Smuggling of narcotics---Appreciation of evidence---Accused having denied the recovery of narcotics from him could not object to the quantity and the sample sent for chemical examination---Keeping of the recovered material in safe custody and delivery of the same in the office of Chemical Examiner on the same day was duly proved on record---Forwarding of the sample to Chemical Examiner within two days of its recovery could not be said to have been delayed---Recovery witnesses had no ill-will or animosity against the accused---Accused had been proved to carry heroin weighing 7.250 kilograms in his suit case concealed in Glue Sticks, by confidence inspiring evidence with an intention to smuggle the same---Sentence of 14 years' R.I. awarded to accused was not excessive in view of the nature and quantity of the recovered narcotics---Appeal was dismissed accordingly.

Muhammad Siddique Ahmad Qadir for Appellant.

A.D. Nasim, Special Prosecutor, ANF for the State.

Date of hearing: 20th April, 2011.

2011 P Cr. L J 1716

[Lahore]

Before Muhammad Anwaarul Haq, J

IMDAD HUSSAIN and another---Petitioners

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No. 7856-B of 2011, decided on 13th July, 2011.

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

----S. 498---Penal Code (XLV of 1860), Ss.302/324/148 & 149---Qatl-e-­amd and attempt to commit qatl-e-amd---Pre-arrest bail, grant of---Surrendering of accused and remanding him to judicial custody before granting pre-arrest bail---Deputy Prosecutor-General had argued that accused could not be allowed bail and they had to surrender and were required to be remanded to judicial custody---Argument of Deputy Prosecutor-General was misconceived as an accused, summoned in a private complaint, could validly move an application for bail; and same could be decided on merits within the parameters prescribed under Ss.497/498, Cr.P.C., keeping in view the guiding principles in that regard set up by apex Court.

Luqman Ali v. Hazaro and another 2010 SCMR 611 ref.

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

----S. 498---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Qatl­-e-amd and attempt to commit qatl-e-amd---Pre-arrest bail, grant of---Principles---Case was of two versions, one given by the complainant in the F.I.R. implicating accused persons; and the second given by the real brother of deceased through a separate private complaint against another set of accused, but exonerating the accused persons---Injury attributed 'to accused on the elbow of deceased had not been declared fatal, whereas injury attributed to other accused on the person of prosecution witness, had been attributed to the co-accused---Accused persons during the investigation, were found innocent---Possibility of false implication of accused persons, could not be ruled out, in circumstances---While deciding a pre-arrest bail, some expected advancement in its investigation in the form of some recovery etc., after the arrest of accused was a relevant consideration, but in the present case accused persons had already been declared innocent during the investigation and there was no question of any recovery involved to their extent---Sending accused persons behind the bars only for the reason that they could be released on bail after their arrest, was unjustified--,Ad interim pre-arrest bail already allowed to accused persons was confirmed by High Court, in circumstances.

Muhammad Ramzan v. Zafar Ullah and another 1986 SCMR 1380 and Muhammad Aslam v. The State 2000 YLR 1341 rel.

Syed Ijaz Qutab for Petitioners.

Mirza Abid Majeed, Deputy Prosecutor-General for the State.

Ch. Muhammad Farid-ul-Hassan for the Complainant.

Safdar Ali, S.-I. with record.

2011 P Cr. L J 1724

[Lahore]

Before Sh. Ahmad Farooq and Muhammad Qasim Khan, JJ

AHSAN ABBASI---Petitioner

Versus

CHAIRMAN, NAB and 2 others---Respondents

Writ Petition No. 19808 of 2010, decided on 20th June, 2011.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(b)--- Constitution of Pakistan, Art. 199--- Constitutional petition---Bail, grant of---Delay in trial---Benamidar---Proof---Accused was arrested on 13-5-2010 during inquiry of a case but neither inquiry was completed nor reference had been ,tiled---Accused remained on physical remand for 87 days with NAB but Investigating Officer could not connect him with allegations levelled against him---Effect---NAB authorities admitted that no benami property could be unearthed against accused except a motorcycle which stood registered and used by him on behalf of principal accused---More than one year had passed from the date of arrest of accused but Investigating Officer was not in a position to collect any piece of evidence against him---High Court declined to keep the accused behind the bars just on the ground that he was an employee and brother-in-law of the main accused involved in the scam---Bail was allowed in circumstances.

Qazi Mishab ul Hassan for Petitioner.

Mian Muhammad Hanif Tahir, Legal Expert NAB for Respondents.

Allah Rakha, Investigating Officer.

2011 P Cr. L J 1729

[Lahore]

Before Malik Shahzad Ahmad Khan, J

ZULFIQAR ALI---Petitioner

Versus

THE STATE and 4 others---Respondents

Writ Petition No. 10473 of 2011, decided on 16th May, 2011.

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

----S. 516-A---Penal Code (XLV of 1860), Ss.395/342---Constitution of Pakistan, Art. 199---Constitutional petition---Dacoity, wrongful confinement---Superdari of vehicle---Superdari of the tractor trolley given to the respondent by Sessions Court had been assailed by the accused petitioner, who had allegedly forcibly snatched the same from the complainant-respondent---Petitioner had failed to produce any documentary evidence regarding purchase of the said tractor trolley---F.I.R. about the said dacoity having been registered against the accused petitioner, ground of his last possession of the disputed vehicle was of no help to him---If the ground of last possession, as taken by the petitioner, was considered to be the sole basis for granting interim custody of the vehicle, then all the accused involved in theft, robbery and dacoity cases, would claim "Superdari" of the recovered vehicles as a matter of right and would amount to vitiate the criminal proceedings initiated against such type of accused and would give a licence to them to commit such offences and frustrate the law---Superdari of a vehicle could not be given to a person against whom allegation of theft had been made---Respondent had established his ownership of the tractor trolley through documentary evidence, which stood transferred in his name---Stay order granted to petitioner by civil court by itself had made it clear that it would not affect any judicial proceedings pending between the parties---Impugned order giving the vehicle on "Superdari" to the respondent had no legal or factual infirmity---Constitutional petition was dismissed in limine in circumstances.

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

----S. 516-A---Penal Code (XLV of 1860), Ss.395/342---Dacoity, wrongful confinement---Superdari of vehicle---Superdari of a vehicle cannot be given to a person against whom allegation of theft has been levelled.

Qaiser Shafeeq Vohra v. The State and others 1991 MLD 2590 rel.

Ch. Zulfiqar Ali for the Petitioner.

2011 P Cr. L J 1737

[Lahore]

Before Shahid Hameed Dar, J

ASJAD MEHMOOD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 359/B of 2011, decided on 5th April, 2011.

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

----S. 497(2)---Penal Code (XLV of 1860), S. 302/34---Qatl-e-amd---Bail, grant of---Prosecution case was based on circumstantial evidence---Accused and his co-accused had allegedly visited the prosecution witnesses for seeking pardon and jointly admitted their guilt before them---Admissibility of such extra-judicial confession was yet to be determined by Trial Court---Witnesses of "Wajtakkar" and last seen evidence, though closely related to the complainant, had not disclosed this fact immediately to him and kept tacit for many days---Complainant even in his supplementary statement did not divulge the names of the said witnesses and he instead of referring to their names as a source of his information, had relied upon his "firm belief" to implicate the accused in the case---Circumstantial evidence was the weakest type of evidence, which could be easily procured by the prosecution, wherever direct evidence did not come their way---Case of accused called for further inquiry into his guilt within the scope of S.497(2), Cr.P.C. and he was admitted to bail accordingly.

(b) Criminal trial---

----Circumstantial evidence---Nature and import---Circumstantial evidence is the weakest type of evidence and it can be procured easily by the prosecution wherever direct connecting evidence does not come their way.

Raja Tanvir Akhter for Petitioner.

Raza Zulqarnain Bhatti for the Complainant.

Kh. Sohail Iqbal, D.P.-G. for the State.

Muhammad Anwar Javed, S.-I. with Record.

2011 P Cr. L J 1742

[Lahore]

Before Nasir Saeed Sheikh and Shahid Hameed Dar, JJ

NISAR AHMED---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 304/B of 2011, decided on 21st March, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 365-A---Abduction for ransom---Bail, grant of---Further inquiry---Except the self-implicating statement of a co-accused who had disclosed the name of accused as their aide in the commission of the offence, no other incriminating circumstance existed on the record to connect him with the crime---Neither the alleged abductees were recovered at the instance of accused, nor any ransom amount was recovered from him---Accused was not even found present either at the place of arrest of accused or at the place of recovery of the abductees---None of the abductees had named the accused as a culprit of the case---Mere heinousness of the offence could not be considered as a ground to decline bail to accused, once his case was found to further inquiry as contemplated under S.497(2), Cr.P.C.---Accused was allowed bail in circumstances.

Syed Ali Shah Bokhari for Petitioner.

Ch. Abdul Waheed, D.P.-G. for the State.

Malik Muhammad Kabir for the Complainant.

Muhammad Iqbal, S.-I. with Record.

2011 P Cr. L J 1748

[Lahore]

Before Mazhar Iqbal Sidhu, J

ABID HUSSAIN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 96-B of 2011, decided on 24th February, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 392 & 411---Robbery, dishonestly receiving stolen property---Bail, refusal of---Delay in lodging the F.I.R. in such cases was a common phenomenon---Highway robbery and street crimes being on the increase needed to be curbed with iron hands in order to maintain peace and tranquillity of the society---Accused was nominated in the F.I.R., who being an accomplice of his co-accused had deceitfully hired the car and on the way on gun point snatched the key of the car from the complainant and drove away with his co-accused leaving behind the complainant---Car as well as the pistol had been recovered from the accused during investigation and he was found involved in the crime, which was an act of terrorism---Bail was refused to accused in circumstances.

Abdul Ghafoor and another v. The State 2000 PCr.LJ 331 rel.

Ch. Sohail Akhtar Alkara for Petitioner.

Khalid Parvez Uppal, D.P.-G. along with Shabbir Ahmad, S.-I. for the State.

Nisar Ahmad Tatla for the Complainant.

2011 P Cr. L J 1754

[Lahore]

Before Mazhar Iqbal Sidhu, J

MUHAMMAD AFZAL---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 13-B of 2011, decided on 9th February, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/148/149---Qatl-e-amd, attempt to commit qatl-e-amd, rioting armed with deadly weapons---Bail, grant of---Further inquiry---Although specific gunshot injury hitting on left thigh of the accused, had been attributed to the accused, yet the post-mortem examination report had described the said injury as an incised wound, which was a grave contradiction between the ocular and medical evidence---Such contradiction had, prima facie, made the case of accused that of further inquiry---Bail was allowed to accused in circumstances.

M. Shah Muhammad Khokhar for Petitioner.

Asghar Ali Gill, D.P.-G. along with Maqsood Ahmad, A.S.-I. for the State.

Mirza Muhammad Azam for the Complainant.

2011 P Cr. L J 1763

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MURSHID ALI and 4 others---Petitioners

Versus

S.H.O., POLICE STATION SADDAR, KHANEWAL and another---Respondents

Writ Petition No. 12772 of 2010, decided on 25th May, 2011.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 7, 9, 10 & 20---Penal Code (XLV of 1860), S. 406---Constitution of Pakistan, Art.199---Constitutional petition---Criminal breach of trust---Registration of F.I.R. pending suit for recovery of loan---Petition for quashing of F.I.R.---Relationship between the petitioners and Bank was of banker and customer and Financial Institutions (Recovery of Finances) Ordinance, 2001 which was a special law, had been enacted for resolution of dispute arising out of finance, both civil and criminal---Basic purpose for enacting said special law was to provide machinery for ousting the jurisdiction of local Police with reference to commercial dispute between the banker and customer---Financial Institutions (Recovery of Finances) Ordinance, 2001, had provided the complete procedure for redressal of bank's grievance of criminal nature in addition to civil nature; and under S.7(b) of Ordinance Banking Court enjoyed all powers, vested in a Court of Session---Said powers were subject to proviso of S.20 of the said Ordinance, whereunder Banking Court would take cognizance only on a complaint in writing made by a person authorized in that behalf---Courts established under Criminal Procedure Code, 1898, would have no jurisdiction to take cognizance of the matter arising out of a finance advanced by the bank---Main object for enacting Financial Institutions (Recovery of Finances) Ordinance, 2001, which was special law, was that customer or the bank should not be dealt under ordinary court or criminal law---Special law would prevail over the general law---Local Police, in circumstances, had no jurisdiction to take cognizance in the matter covered under the Ordinance---Jurisdiction under the general law having been specially ousted, entertainment of complaint was patently against law---Very registration of F.I.R. was void as complainant was not authorized person to lodge the complaint and the exclusive jurisdiction to decide the issue was with the Banking Court---F.I.R. was quashed in circumstances.

Industrial Development Bank of Pakistan and others v. Mian Asim Fareed and others 2006 SCMR 483 ref.

Capt. (Retd.) Nayyar Islam v. Senior Superintendent of Police and others PLD 2001 Lah. 533 and Aamer Khurshid Mirza v. The State 2005 CLD 20 rel.

Muhammad Suleman Bhatti for Petitioners.

Rana Javed Akhtar Standing Counsel along with Shafiq Ahmad, S.-I. for Respondents.

2011 P Cr. L J 1777

[Lahore]

Before Sheikh Najam ul Hasan and Sardar Tariq Masood, JJ

HAIDER---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1323 and Murder Reference No. 622 of 2005, heard on 4th February, 2011.

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

----Ss. 302(b) & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Eye-witnesses being the residents of the Dera of occurrence were the most natural witnesses and their presence at the scene of occurrence could not be doubted---Complainant had given a complete description of the occurrence implicating the accused fully in giving repeated Toka blows to the deceased and the injured lady---Presence of the injured witness on the spot at the relevant time was also proved due to the injuries sustained by her while saving her deceased brother from the assault of accused---Said injured witness was consistent on each and every material point regarding the role of accused, causing of injuries, the weapon used and identity of accused---Ocular account furnished by both the eye-witnesses, who had nothing to falsely implicate the accused, was straightforward and trustworthy---Accused and the witnesses were already well known to each other to their close relationship and close living---Accused had to be very close to the deceased and the injured witness while causing them Toka injuries---Identification of accused at the time of occurrence in moon light by the witnesses was not open to any doubt---Motive as alleged in the F.I.R. and mentioned by the eye-witnesses in the court having not been challenged by the defence in cross-examination, would be deemed to have been admitted by the accused---Medical evidence had fully supported the ocular version---Toka recovered from the accused found to have been stained with human blood, had further corroborated the ocular account---Real sister of the accused had not supported his version, nor she and her son who could have compounded the offence, had come forward to rescue the accused, this circumstance had also supported the prosecution case---Desperate and brutal act of accused had indicated that it was a calculated murder and there was no mitigating circumstance in his favour---Conviction and sentence of accused were upheld in circumstances.

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

----Ss. 302(b) & 324---Qanun-e-Shahadat (10 of 1984), Arts. 132 & 133---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Principles---If a party asserts some fact in examination-in-chief and it is not controverted by other side, then the said fact would be an admitted fact.

Burhan Moazzam Malik and Ch. M. Qasim for Appellant.

Shahid Bashir Chaudhry, D.P.-G. for the State.

Rao Abdul Jabbar Khan for the Complainant.

Date of hearing: 4th February, 2011.

2011 P Cr. L J 1817

[Lahore]

Before Ch. Muhammad Tariq and Shahid Hameed Dar, JJ

MOHSIN ABBAS---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 9520-B of 2011, decided on 8th August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 15---Possessing and trafficking of narcotic drugs---Bail, grant of---Quantity of the recovered narcotic substance exceeded one kilogram by 200 grams, which had made the case of accused, a borderline case---Accused was stated to be a previous non-convict and did not have any criminal antecedents---Challan had already been submitted before the Trial Court; and further incarceration of accused was of no consequence to the prosecution case---Accused was admitted to bail, in circumstances.

Waqar Ahmad Rais for Petitioner.

Khurram Khan, Deputy Prosecutor-General Punjab for the State.

2011 P Cr. L J 1826

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

HABIB ULLAH---Petitioner

Versus

CAPITAL CITY POLICE OFFICER, LAHORE and 3 others---Respondents

Writ Petition No. 25508 of 2010, decided on 2nd February, 2011.

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

----Ss. 154 & 157---Constitution of Pakistan, Art.199---Constitutional petition---Registration of F.I.R.---Despite the order of Additional Sessions Judge/Ex-officio Justice of the Peace, S.H.O. had failed to register a criminal case against the culprits---Under S.154, Cr.P.C. a statutory duty was cast upon the Officer Incharge of Police Station to enter information regarding commission of any cognizable offence and to record the F.I.R. mandatorily---Section 157(1), Cr.P.C. had manifested that said section would come into play when the matter had been initiated under S.154, Cr.P.C.---Proceedings taken by S.H.O. under S.157, Cr.P.C. without registering the case under S.154, Cr.P.C., therefore, were against the canons of law as well as the settled principles on the subject---S.H.O. was, resultantly, directed to proceed on the application of the complainant petitioner strictly in accordance with law---Constitutional petition was allowed accordingly.

Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539; Said Jalal and 2 others v. The State and another 1972 SCMR 516; Muhammad Shah and 3 others v. The State 1982 PCr.LJ 124; Haji Muhammad Khan v. Ch. Khizar Hayat and 3 others PLD 1977 Lah. 424; Muhammad Aslam Saleemi Advocate v. The Pakistan Television and another PLD 1977 Lah. 852 and State of West Bangal and others v. Sanchaita Investments and others AIR 1982 SC 949 ref.

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

----Ss. 154 & 157---Distinction between Ss. 154 & 157, Cr.P.C.---Provisions of Ss.154 and 157, Cr.P.C. are different in scope---Section 154, Cr.P.C. is applicable to a case where the F.I.R. is given by some other person and the action is not suo motu by the Officer-incharge of a Police Station and makes it incumbent upon such officer to reduce in writing the information given or get it so reduced and then to enter it in the book kept for the purpose---Provisions of S.157, Cr.P.C. are applicable only to investigation and not to the recording of the F.I.R.

Haji Muhammad Khan v. Ch. Khizar Hayat and 3 others PLD 1977 Lah. 424 ref.

Ali Hussain Mohsin for Petitioner.

Imtiaz Ahmed Kaifi, Additional Advocate-General with Muhammad Yaseen and Muhammad Azam Sub-Inspectors for the State.

Tanveer Azam Cheema for Respondents.

Date of hearing: 28th January, 2011.

2011 P Cr. L J 1835

[Lahore]

Before Muhammad Yawar Ali, J

PARVEEN BIBI---Petitioner

Versus

S.H.O. POLICE STATION SADAR MIAN CHANNU DISTRICT KHANEWAL and another---Respondents

Criminal Miscellaneous No. 353-H of 2011, decided on 27th June, 2011.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Petitioner/mother had sought recovery of her minor son, four years of age, stated to be illegally detained and confined by father of the minor---Ordinarily, a mother and not the father, would be entitled to 'Hizanat' of any male child of less than 7 years of age---Petition seeking custody of a minor child wherein the mother had taken a plea that her child had been illegally detained and confined by his father could only be entertained by High Court, if; the child was of very tender age, meaning thereby that the mother would be given custody of a suckling baby or of a child of very tender age, who due to certain exceptional circumstances, could only be looked after by the mother; where a child of very tender age living with his mother was stated to have been very recently snatched by the father; where a mother could demonstrate to the court that the father was in the process of shifting child to some unknown place, so that approaching the Guardian Judge would become an exercise in futility---Any order passed regulating the custody of a minor child by High Court while seized of a petition under S.491, Cr.P.C. would essentially be interim in nature and would be subject to final adjudication by the Guardian Judge, whose orders would ultimately regulate the custody of the child---Alleged detenu was not of very tender age being four years old and child was not very recently snatched---It was not the case of the petitioner that Father of alleged detenu was not likely to shift the child to some unknown place making it impossible for the petitioner to seek her remedy before the Guardian Judge---Petition was dismissed in circumstances.

Muhammad Javed Umarao v. Miss Uzma Vahid 1988 SCMR 1891; Nisar Muhammad and another v. Sultan Zari PLD 1997 SC 852; Naziha Ghazali v. The State and another 2001 SCMR 1782; Mst. Khalida Perveen v. Muhammad Sultan Mehmood and another PLD 2004 SC 1 and Mst. Nadia Perveen v. Mst. Almas Noreen and others Criminal Petition No. 127-L of 2010 rel.

Rana Jaffar Ali Khan for Petitioner.

Ch. Muhammad Akbar, D.P.-G.

Ch. Zulfiqar Ali Sidhu for Respondent No.2.

Riaz S.-I.

2011 P Cr. L J 1863

[Lahore]

Before Ijaz Ahmad and Kh. Imtiaz Ahmad, JJ

AKHTAR AHSAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 1 of 2010 in Criminal Appeal No. 69 of 2010, decided on 14th March, 2011.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.302(b), 324, 396, 460 & 337-D---Qatl-e-amd, attempt to commit qatl-e-amd, dacoity with murder, lurking house-trespass and Jaifah---Petition for suspension of sentence---Accused was involved in the case after 5 years of the occurrence on the basis of supplementary statement---Deputy Prosecutor-General had admitted that no evidence was available against the accused---Counsel for complainant had also admitted that judgment passed against accused suffered from infirmities---Only evidence available against accused was the statement of the complainant and that of Investigating Officer and no other evidence was on record to connect accused with the offence---Case against accused was fit for the suspension of sentence and mere heinousness of offence was no ground to refuse relief to accused when apparently there was no evidence available against the accused connecting him with the offence---Accused was admitted to bail, in circumstances.

Ch. Muhammad Ashraf for Petitioner.

Amjad Rafique, D.P.-G. for the State.

Syed Zawar Hussain Shah for the Complainant.

2011 P Cr. L J 1870

[Lahore]

Before Sagheer Ahmad Qadri, Ch. Muhammad Tariq and Ijaz Ahmad JJ

Ch. MUHAMMAD ASLAM---Petitioner

Versus

C.P.O. RAWALPINDI and others---Respondents

Writ Petitions Nos. 2199, 2712 of 2009 and 5279 of 2010, heard on 15th June, 2011.

Per Ijaz Ahmad, J

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

----Ss. 44 & 154---Information of cognizable offence---Scope---Both Ss.44 and 154, Cr.P.C. are purported for setting criminal law into motion and to furnish legal basis for conducting investigation in case of commission of cognizable offence.

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

----S. 154---Qanun-e-Shahadat (10 of 1984), Arts. 140 & 153---F.I.R., value of---Scope---F.I.R. recorded in consequence of receipt of information has an evidentiary value---F.I.R. may be used for the purpose of contradiction under Articles 140 and 153 of Qanun-e-Shahadat, 1984.

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

----Ss. 22-A, 22-B, 154 & 200---Constitution of Pakistan, Art.199---Constitutional petition---Second F.I.R.---Private complaint, filing of---Petitioner filed application before Justice of Peace for registration of second F.I.R. about assassination of a political leader, after about more than 1-1/2 years of the occurrence---Application was dismissed by Justice of Peace as already a prompt F.I.R. had already been registered about the occurrence and trial was pending adjudication---Validity---Petitioner was unable to make out a distinct and separate version, as he did not dispute place of occurrence or the occurrence itself---Petitioner wanted to set forth a version regarding the manner in which the incident took place, which was in fact supplementation and amplification of the version recorded earlier---Petitioner might file a private complaint under S. 200, Cr.P.C., which was one of the modes of taking cognizance of an offence by Magistrate---Private complaint was an alternative and efficacious remedy and Magistrate seized of the complaint could inquire the matter himself or might direct an inquiry to be conducted by Justice of Peace or by a Police officer---Application under S. 22-A, Cr.P.C. made by petitioner was rightly dismissed by Justice of Peace and his order suffered from no illegality---Petition was dismissed in circumstances.

?????? Dr. Inayatullah Khilji and 9 others v. Ist additional District and Sessions Judge, (East) at Karachi and 2 others 2007 PCr.LJ 909; Rafaqat Hussain Shah v. A.S.P. (S.D.P.O.) Cantt., Rawalpindi and 5 others 2004 PCr.LJ 1864; Muhammad Afzal v. Muhammad Ashraf and 15 others 1996 PCr.LJ 489; Mst. Allah Rakhi v. District Police Officer, Gujranwala and others 2009 PCr.LJ 569; Mst. Anwar Begum v. Station House Officer, Police Station Kalri West Karachi and 12 others PLD 2005 SC 297; Muhammad Azam v. Inspector-General of Police, Islamabad and 2 others PLD 2008 Lah. 103; Muhammad Asif v. Umar Farooq Khan, Inspector Police and 5 others 2010 MLD 128; Muhammad Azam v. Inspector-General of Police and 2 others 2008 PCr.LJ 428; Rana Ghulam Mustafa v. S.H.O. Police Station, Civil Lines, Lahore and 2 others PLD 2008 Lah. 10; Muhammad Ilyas v. S.H.O., Police Station Baddomalhi, District Narowal and 3 others 1997 MLD 1527; Imtiaz Ali v. District Police Officer and 10 others 2005 YLR 702; Turabul Hassan v. District Officer Revenue, Toba Tek Singh and 7 others 2006 YLR 61; Mst. Malka Jan v. Inspector-General of Police, N.-W.F.P. Peshawar and 2 others 2000 PCr.LJ 320; Jamshed Ahmad v. Muhammad Akram Khan and another 1975 SCMR 149; Allah Ditta and 3 others v. The SHO, Police Station Basirpur, District Okara and 3 others PLD 1987 Lah. 300; Malik Muhammad Aslam v. Station House Officer, Police Station, Sadar, Sargodha and 2 others PLD 1981 Lah. 138; Wali Muhammad and 4 others v. The State and another 1985 PCr.LJ 1342; Kaura v. The State and others 1983 SCMR 436; Emperor v. Kh. Nazir Ahmad AIR 1945 PC 18; Sadiq Masih's case 1994 PCr.LJ 295; Muhammad Latif v. SHO 1993 PCr.LJ 1992; Abdul Ghani v. SHO, Police Station Saddar, Sheikhupura and others 1983 PCr.LJ 2172; Shahid Hussain v. S.P. 1986 MLD 1155; Ghulam Hussain v. Sirajul Haq 1987 PCr.LJ 1214; Muhammad Ilyas v. SSP 1989 PCr.LJ 1129; Mrs. Ghanwa Bhutto and another v. Government of Sindh and another PLD 1997 Kar. 119; Mst. Anwar Begum v. Station House Officer, Police Station Kalri West, Karachi and 12 others PLD 2005 SC 297; Muhammad Anwar Sub-Inspector Railway Police Lahore v. SHO Railway Police Kasur and 2 others PLD 1999 Lah. 50; Mst. Allah Rakhi v. DPO, Gujranwala and 5 others 2009 MLD 99; and Ahmad Yar v. SHO Shah Kot and 8 others 2007 PCr.LJ 1352 ref.

?????? Ahmad Ali v. The State 2007 PCr.LJ 372; Malik Muhammad Aslam v. SHO, Police Station, Saddar Sargodha and 2 others PLD 1981 Lah. 138 and Sadiq Masih v. SHO and others 1994 PCr.LJ 295 rel.

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

----S. 154---Prompt F.I.R.---Benefit---Purpose---Promptness in furnishing information, when memory is fresh, envisages and carries presumption of truth---Delay caused in F.I.R. hints at premeditation, consultation and combination.

Per Sagheer Ahmed Qadri, J, agreeing.

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

----Ss. 154 & 200---Registration of case---Procedure---In a case of cognizable offence, under S. 154, Cr.P.C. it is obligatory on Station House Officer of a police station, in case any such information is parted to him to reduce the same into writing while recording statement of informant and then proceed further in investigation in accordance with law---Complainant/aggrieved person or any person can lodge any such? report? with? Station? House? Officer? concerned? and? in? case? no such action is initiated, such information can be brought into the notice of Area Magistrate, under S. 200, Cr.P.C., with a view to initiate action against the person involved in commission of any such offence.

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

----S. 44---Complainant---Scope---Every person having information about commission of offences mentioned under S. 44(1), Cr.P.C., does not automatically become complainant or aggrieved person---Person who? is? in? knowledge? of? any? such? information? is? obliged? under? S.44,? Cr.P.C. to part with the information to the concerned authorities/public functionaries and then it is for them to further proceed? in? accordance? with? law? for? initiation?? of? any action against accused/ person responsible for the commission of the offence.

?????? Lt. Dhara Singh and others v. Emperor AIR 1933 Lah. 515 rel.

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

----Ss. 173, 200 & 202---Constitution of Pakistan, Art. 199---Constitutional petition---Aggrieved person---Private complaint, filing of---Principle---Petitioner was declared not to be an 'aggrieved person', and if he would be allowed to file private complaint then he had to prove his assertions/allegations through certain pieces of evidence, which according to record was not available to him--- In private complaint a court/Magistrate was only obliged to get conduct an inquiry under S. 202, Cr.P.C. by a police officer or any concerned person which exercise had already been done while conducting investigation on the basis of which successive reports under S.173, Cr.P.C. had already been submitted in Trial Court--- Petitioner was not an 'aggrieved person' and was not entitled to file any private complaint.

Per Ch. Muhammad Tariq, J., agreeing.

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

----S. 154---Second F.I.R., registration of---Principle---Registration of second? F.I.R.? regarding? same? occurrence? is? not? barred? under? law, if a distinct and separate cognizable offence is disclosed or if complainant or an aggrieved person differs from the contents of F.I.R. on the ground that police did not record the story narrated by him---Second F.I.R. is not barred particularly in cases of counter versions.

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

----S. 154---Constitution? of Pakistan, Art. 199---Constitutional petition---Second F.I.R.---Registration---'Aggrieved person'---Petitioner was a Protocol Officer with the political leader who was assassinated after a public meeting---After a period of about 1-1/2 years, petitioner wanted to get registered second F.I.R. of the occurrence---Validity---Husband of assassinated political leader was sitting President of Pakistan and her real son was Chairman of the political party who was not only highly educated but foreign qualified---None of them neither objected the contents of F.I.R. nor they questioned result of investigation---Even other family members of deceased also by their conduct showed satisfaction on the result of investigation---When trial had commenced, charge had been framed and statements of some of prosecution witnesses had already been recorded---Order for registration of second F.I.R. was not warranted under the law---Petitioner could not claim himself as aggrieved party, therefore, petition was not maintainable--- Petition was dismissed in circumstances.

?????? AIR? 1970? SC? 870;? AIR? 1999? SC? 22? and? AIR? 1962? SC 305 ref.

(j) Criminal trial---

----Opinion of police---Scope---Ipse dixit of police is not binding on court---Investigating agency has the only duty to collect evidence and place it before court---Investigating agencies have no authority to give finding regarding guilt or innocence of accused person under the proceedings of Criminal Procedure Code, 1898 or Police Order, 2002---Only the court had prerogative to give finding after recording of evidence and statement of accused regarding guilt or innocence of accused person--- Deciding a case on the finding of investigating agencies tantamount to delegate powers of court to investigating agencies.

?????? Muhammad Asad Rajput for Petitioner.

?????? Sadaqat Ali Khan, Additional Advocate-General, Punjab with Yasin Farooq, SSP, Operations, Khalid Rasool, Director, FIA and Sabir Ali, DSP.

?????? Azher Chaudhry and Ch. Zulfiqar Ali, Special Public Prosecutors.

?????? Syed Nayyab Hussain Gardezi for Respondent No.4.

?????? Khalid Ranjha for Respondent No.5.

?????? Amjad Iqbal Qureshi for Respondents Nos. 7, 8, 11 and 13.

?????? Basharat Ullah Khan for Respondent No.9.

?????? Umar Riaz for Respondent No.10.

?????? Date of hearing: 15th June, 2011.

2011 P Cr. L J 1896

[Lahore]

Before Ch. Muhammad Tariq, J

SHOAIB SHAHID---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 823/B of 2011, decided on 30th June, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/34/337-A(ii)/337-F(ii)---Qatl-e-amd, causing Shajjah-e-Mudihah and Badi'ah---Bail, refusal of---F.I.R. was promptly lodged---Accused was nominated in the F.I.R. with specific role that he murdered his real paternal uncle by firing a shot which hit him on the chest; accused thereafter gave repeated/various blows with the grip/butt of his pistol on various parts of the body of the deceased---Occurrence was fully corroborated by the injured---Prosecution witnesses implicated accused while making statements before the Investigating Officer under S.161, Cr.P.C.---Plea of alibi raised by accused could not be looked into at bail stage---Unless under S.7 of Juvenile Justice System Ordinance, 2000 an inquiry was conducted and accused was declared juvenile, accused could not derive any benefit out of his mere statement that accused was juvenile---Police record showed the age of accused about 18/19 years---Fact that Investigating Officer had declared accused as innocent and he had been placed in Column No.2 of challan was not fatal to the case of prosecution because ipse dixit of the Police was not binding on the courts, particularly when occurrence had taken place at 3.30 p.m. (after noon) and accused was nominated in F.I.R. with specific role which was duly supported by the post mortem report---Case of accused fell within the prohibitory clause of S.497, Cr.P.C.---No case for grant of bail having been made out, bail petition was dismissed.

Shafqat Munir Malik for Petitioner.

Aamir Shafique Qureshi for the Complainant.

Muhammad Usman, D.P.-G. with Dost Ali, S.-I. for the State.

2011 P Cr. L J 1903

[Lahore]

Before Shahid Hameed Dar and Sardar Muhammad Shamim Khan, JJ

GHULAM ABBAS alias BADSHAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 138 and Murder Reference No. 285 of 2006, heard on 15th February, 2011.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---F.I.R. in the case was lodged with reasonable promptitude and such promptly lodged F.I.R. would exclude the chance of deliberations and consultations---Name of accused, manner of occurrence, seat of injury, the weapon used during the occurrence and prosecution witnesses were mentioned by the complainant in the F.I.R.---Prosecution had proved the motive part of its story---Both eye-witnesses were cross-examined by the defence, but their evidence was not shaken in any manner---Said eye-witnesses had given a detailed account of events leading to the murder of the deceased and they were unanimous on all material points---No contradiction or any improvement existed in evidence---Occurrence though had taken place at night, but prosecution witnesses identified accused in the light of electric bulb---Electric bulb available on the place of occurrence though was not taken into possession by the Police during investigation, but it would not adversely affect the prosecution case---One of the prosecution witnesses though was real brother of the deceased and other was maternal nephew of the deceased, but their relationship with the deceased was not a valid ground for excluding their testimony from consideration as both said witnesses were not inimical towards accused and they had no reason to falsely implicate accused in the case---Eye-witnesses were the natural witnesses whose presence at the time of occurrence was well explained---No enmity of the deceased with accused had been suggested---Case being of single accused, substitution of accused in such situation was a rare phenomenon---Complainant, who was real brother of the deceased, would not let off the real culprit in order to falsely implicate accused in absence of any enmity---Medical evidence was in conformity with the eye-witness account and had provided necessary corroboration thereto---Factum of recovery of weapon of offence stood conclusively proved---Prosecution, in circumstances, had proved its case against accused beyond reasonable doubt through motive, credible ocular account, corroborative medical evidence and evidence of recovery of weapon of offence---Conviction and sentence of death awarded to accused by the Trial Court, was maintained, in circumstances.

Prince Rehan Iftikhar Sheikh for Appellant.

Qazi Sadar ud Din Alvi for the Complainant.

Munir Ahmad Sial, D.P.-G. along with Sultan Mahmood, S.-I. for the State.

Date of hearing: 15th February, 2011.

2011 P Cr. L J 1916

[Lahore]

Before Ijaz Ahmad Chaudhry, C.J. and Mazhar Iqbal Sidhu, J

GHULAM MUSTAFA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 859 of 2006 and Murder Reference No. 357 of 2006, heard on 23rd June, 2011.

Penal Code (XLV of 1860)---

----S. 302---Qatl-e-amd---Appreciation of evidence---Record had revealed that deceased had no enmity in the vicinity where he lived; he was not only a labourer, but was also a poor man---No motive on record for false involvement of accused---Version of accused that he had been involved by the complainant on the instigation of Lumberdar of the village, was meta of reasons and could not be believed---Two eye-witnesses though were brothers of the deceased, but no element to dub them as inimical to accused, was found and there was no previous enmity between them---Presence of prosecution witnesses at the place of occurrence was quite natural as they were working in nearby field to the place of occurrence---Neither the complainant nor the prosecution witnesses had exaggerated the prosecution case---No material contradiction or improvement had been found in the statements of the prosecution witnesses---Statements of the witnesses could not be thrown out of consideration on the basis of relationship---Searching cross-examination had been made upon both the prosecution witnesses, but the defence remained unsuccessful to prove out any thing in favour of accused---Statements of the prosecution witnesses had been corroborated by the medical evidence---Prosecution witnesses had made statements in a very natural way---No dent was found in the prosecution version---Prosecution had fully proved its case against accused beyond shadow of reasonable doubt---No material/substance was found to tone down quantum of sentence in the case---Accused repeated the fire shots on the deceased who left behind 8 orphans and he was aged about 40 years---Murder Reference was answered in the positive and death sentence awarded to accused by the Trial Court, was confirmed.

M. Tahir Mehmood for Appellant.

Tariq Javed D.P.-G. with S.-I. for the State.

Date of hearing: 23rd June, 2011.

2011 P Cr. L J 1929

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwar Bhaur, JJ

MUMTAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 114 of 2004 and Murder Reference No. 18 of 2004, decided on 25th March, 2010.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Complainant had very plausibly explained the prompt registration of the F.I.R. at the police station and conducting the post-mortem examination of the deceased at the given time---Statements of the complainant and other eye-witness were consistent an all material facts as narrated in the F.I.R. including the identification of the accused, place and time of occurrence---Ocular testimony did not suffer from any discrepancy or dishonest improvement---Presence of eye-witnesses on the spot stood established, otherwise neither the F.I.R. could be so promptly lodged, nor the post-mortem of the deceased could have been conducted on the same day so early---Medical evidence had corroborated the ocular account---Eye-witnesses being closely related to the deceased could not be expected to falsely involve an innocent person for the real culprit---Motive for the incident had been proved---Accused had intentionally absconded after the occurrence to save his skin from the clutches of law and had failed to establish his plea of alibi on the record---No mitigating circumstance in favour of accused was available--- Appeal of accused was dismissed in circumstances.

Rahim Ullah Jan v. Kashif and others PLD 2008 SC 298; Mirza Khan and another v. The State 2005 SCMR 1110; Liaqat v. The State 2006 SCMR 33 and Sardar Khan and 3 others v. State 1998 SCMR 1823 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Motive, proof of--- Principle--- Proof of motive is not a legal requirement in the presence of other convincing and unimpeachable ocular version.

Mirza Khan and another v. The State 2005 SCMR 1110 and Liaqat v. The State 2006 SCMR 33 ref.

Mian Aftab Farrukh assisted by Mian Muhammad Sikandar Hayat for Appellant.

M.M. Alam, Additional Prosecutor-General Punjab for the State.

Kh. Sultan Ahmad assisted by Sher Afghan Asadi for the Complainant.

Date of hearing: 16th March, 2010.

2011 P Cr. L J 1944

[Lahore]

Before Mehmood Maqbool Bajwa, J

Mian ARIF HUSSAIN and others---Petitioners

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.6428-B of 2011, decided on 23rd June, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.420, 468 & 471---Cheating, forgery, using as genuine a forged document---Bail, refusal of---Both accused persons were nominated in the F.I.R.---Raid was conducted at the factory of accused persons and samples were procured by local Health Department duly signed by one of accused persons being partner---Report of Public Analyst revealed that samples were not fit for human consumption and were being sold by using the forged stickers and labels of 'Pepsi Cola'---Argument regarding false implication of accused persons at the instance of local dealer of Pepsi Cola, could not advance plea of accused in the absence of any material available on record and report of Public Analyst---Offence under S.420, P.P.C. was bailable, while rest of the offences though not bailable, but did not fall within prohibitory clause of S. 497, Cr.P.C.---Grant of bail was though a rule and refusal was an exception in cases not falling within prohibitory clause, but no hard and fast rule could be formulated in that regard---Each and every case had to be decided keeping in view its own facts and circumstances---Conduct of accused was one of the most relevant factors in such like cases while deciding the question of bail---Accused persons themselves had admitted that so many cases had been registered against them with the allegation of manufacturing and selling beverage, which according to allegation was injurious to human health---Line of distinction and demarcation had to be made between an offence committed against an individual and an offence directed against the society as a whole for the purpose of bail---Report of Public Analyst declaring the samples unfit for human consumption, clearly suggested that accused were involved in the crime against the society injurious to health of public at large attracting the provisions of West Pakistan Pure Food Ordinance, 1960---Persons involved in such like crime and that too habitual, should be dealt with by applying the law with its full force, but subject to condition of availability of incriminating evidence---Sufficient incriminating material was available to connect both accused persons in the offence---Conduct of one of accused persons also would disentitle him to have the premium of post arrest bail.

Mian Arif Hussain alias Mian Javaid v. Additional Sessions Judge Daska and 3 others 2010 YLR 1369 ref.

Shameel Ahmed v. The State 2009 SCMR 174; Mian Arif Hussain alias Mian Javaid v. Additional Sessions Judge Daska and 3 others 2010 YLR 1369 and Imtiaz Ahmed and another v. The State PLD 1997 SC 545 rel.

Ch. Muhammad Ashraf for Petitioners.

Irshad Hussain Wattoo for Respondent No.2.

Mian Muhammad Awais Mazhar, D.P.-G. and Tariq Javed, A.S.-I. with record for the State.

2011 P Cr. L J 1961

[Lahore]

Before Ijaz Ahmad, J

QASIM SHAH---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 1116-B of 2011, decided on 19th April, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 337-F(iv), 337-A(ii), 337-F(ii), 337-F(i), 148 & 149---Juvenile Justice System Ordinance (XXII of 2000), S.10(7)(a)---Attempt to commit qatl-e-amd, causing Badi'ah, Mudihah, and Damiyah and causing Shajjah-i-Mudihah---Bail, grant of---Further inquiry---Accused had been declared a Juvenile, below 18 years of age---Act or omission of the accused mentioned in subsection (7)(a) of S.10 of Juvenile Justice System Ordinance, 2000 though spoke of an act or omission simpliciter, but every fair act or forced omission like making of an application for being declared juvenile, could not be termed a factor that caused delay in conclusion of the trial; and would render such person disentitle to bail---Such act or omission must be pregnant with mala fide on the part of accused/Juvenile Offender which was not present in the case of accused---Every offence of commission of murder, could not automatically be attached heinousness, gruesome and brutality---Had it been the case, only the offence should have been mentioned, but in the present case, the nature of offence and the style of commission was made a condition to refuse the grant of bail which could not be said, at bail stage with certainty to be present in the offence---Four of co-accused had been declared innocent, which had taken away some of the credence from the case against accused ; and it made a case one of further inquiry---Accused was granted post-arrest bail in circumstances.

Shabbir Ahmed v. The State 2010 MLD 948; Muhammad Ali v. The State KLR 2009 Cri. 135; Mehar alias Mehaar v. The State 2009 PCr.LJ 47 and Muhammad Yousaf v. Muhammad Shahbaz and another 2007 MLD 1448 ref.

Muhammad Khalid Farooq for Petitioner.

Ch. Muhammad Akbar, learned D.P.-G. for the State.

Khalid Abin Aziz for the Complainant.

Abdul Sattar A.S.-I. along with the record.

2011 P Cr. L J 1971

[Lahore]

Before Muhammad Anwaarul Haq and Sh. Ahmad Farooq, JJ

NAVEED alias NAVIDI---Petitioner

Versus

THE STATE---Respondent

C.M. No.1 of 2011 in Criminal Appeal No. 336 of 2007, decided on 10th August, 2011.

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

----S. 426(1-A)---Penal Code (XLV of 1860), Ss. 302(b)/337-F(iii)/34---Suspension of sentence---Statutory delay---Accused was convicted and sentenced by Trial Court and appeal against the conviction and sentence had been pending decision before High Court since 27-2-2007---Plea raised by complainant was that two earlier applications for suspension of sentence filed by the accused had already been dismissed---Validity---Seeking suspension of sentence in view of amended S.426(1-A), Cr.P.C. was an independent right and accused could validly apply for the relief even after dismissal of his petitions on merits under S.426, Cr.P.C.---Accused was not responsible for delay in decision of his appeal in any manner and his case did not fall within the proviso to S.426(1-A), Cr.P.C.---High Court, without touching merits of appeal, suspended the sentence---Petition was allowed accordingly.

Liaqat and another v. The State 1995 SCMR 1819 fol.

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

----S. 426(1-A)---Suspension of sentence---Word "shall"---Effect---Legislature has inserted the word "shall" purposely to make the same mandatory and in case falling within the purview of S.426(1-A) Cr.P.C., suspension of sentence is a rule and its refusal is an exception---Court can refuse suspension of sentence if the case of accused falls within the proviso to S. 426(1-A), Cr.P.C.

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

----S. 426(1-A)---Suspension of sentence---Pre-condition---Appellate Court, deciding such application is under obligation to ascertain that delay in decision of appeal has not been occasioned by any act or omission of appellant or any person acting on his behalf.

Rana Maqsood-ul-Haq for Petitioner.

Muhammad Naeem Sheikh, Deputy Prosecutor-General for the State.

2011 P Cr. L J 1994

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

Mst. REHMAT BIBI---Petitioner

Versus

GHULAM RASOOL and 4 others---Respondents

C.M. No. 2098 of 2011 in Criminal Miscellaneous No. 810-H of 2011, decided on 27th September, 2011.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Expunction of adverse remarks---Impugned remarks recorded in the order of High Court against Inspector General Police---Police investigated the matter secretly and such fact was not brought to the knowledge of the court when order containing adverse remarks was passed---Adverse remarks were a result of non-availability of true facts on record---Inspector General Police had performed his duties intelligently and faithfully and supervised the investigation regularly--­Offending remarks were expunged accordingly.

Barrister Muhammad Ahmad Pansota for Petitioner.

Malik Abdul Aziz Awan, Assistant Advocate-General, Punjab for Respondents.

Ch. Muhammad Mustafa, Deputy Prosecutor-General, Punjab.

2011 P Cr. L J 1997

[Lahore]

Before Muhammad Qasim Khan and Mazhar Iqbal Sidhu, JJ

MUHAMMAD SHAKEEL SHAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 604-M of 2011 in Appeal No. 1086 of 2001, decided on 4th October, 2011.

Criminal Procedure Code (V of 1898)---

----Ss.35, 382-B & 561-A---Penal Code (XLV of 1860), Ss.302(b)/109---Anti-Terrorism Act (XXVII of 1997), S.7---Several sentences---Accused was convicted by Trial Court under Ss. 109/302, P.P.C. and S.7 of Anti-Terrorism Act, 1997, and sentenced to life imprisonment in both the offences---Contention of accused was that sentences imposed upon him should be ordered to run concurrently---Validity---Accused was granted benefit of provisions of S.382-B, Cr.P.C. but nowhere in the judgments handed down by Trial Court, High Court as well as by the Supreme Court, it was directed that the certitude of the sentences would run concurrently/simultaneously--- High Court directed the jail authorities to count the quantum of sentences in each offence concurrently/simultaneously with the benefit of provisions of S.382-B, Cr.P.C., which had already been granted to accused---Application was allowed accordingly.

Aurangzeb and 2 others v. The State PLD 2011 Lah. 25; Zubaida v. Falak Sher and others 2007 SCMR 548 and Shah Hussain v. The State PLD 2009 SC 460 fol.

Qazi Misbah-ul-Hassan for Petitioner.

Ikhlaq Ahmad, D.P.-G. for the State.

Malik Ijaz Hussain for the Complainant.

2011 P Cr. L J 59

[Peshawar]

Before Shah Jehan Khan Yousafzai, J

LIAQAT ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appellant No. 52 of 2010, decided on 19th July, 2010.

Emigration Ordinance (XVIII of 1979)---

--Ss. 22(b) & 24(6)---Receiving money from person illegally on the pretext to provide employment in foreign country---Appreciation of evidence---Allegation against accused was that he through an agreement, committed himself for sending the complainant abroad and that in case he would fail to do that he would pay double the amount to the complainant---According to the complainant, accused received Rs.1,17,000 from him but he having failed to fulfil his commitment, the complainant demanded Rs.3,34,000 as per the terms of agreement but accused refused to pay the said amount---Complainant in his statement had given elaborate story---Two prosecution witnesses had corroborated the statement of complainant---Complainant and prosecution witnesses were subjected to lengthy cross-examination, but their deposition could not be shattered on any material point---Sub-Inspector FIA who conducted preliminary investigation in the case recommended for registration of case against accused---Assistant Director FIA confirmed the submission of the complainant under S.24(6) of Emigration Ordinance, 1979---No previous background of enmity existed between the parties and even there was no question of false implication---Prosecution had fully established that accused had an office for sending the people abroad---Prosecution witnesses were relied upon for recording conviction and sentence of accused---Accused, in circumstances, was rightly convicted and sentenced.

Javed A. Khan for Appellant.

Faridullah Kundi, Standing Counsel for the State and Brother of Complainant in person.

Date of hearing: 1st July, 2010.

2011 P Cr. LJ 90

[Peshawar]

Before Syed Sajjad Hussain Shah and Imtiaz Ali, JJ

TAJ AKBAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 479 of 2009, decided on 21st June, 2010.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Contradiction existed in timing of lodging of the F.I.R. and the writing of Murasila etc.---Samples were sent to the Chemical Examiner with delay of about four days, which delay was not plausibly explained by the prosecution, which had made recovery doubtful---Vehicle from which the recovery had been made, was not produced by the prosecution in the court and the prosecution had failed to explain as to under what circumstances, they could not produce the vehicle in the court, which had further made case of prosecution doubtful---Trial Court had awarded the maximum punishment to accused on the basis of his confessional statement, which otherwise could not be termed as confession so far as recovery of narcotics was concerned---Accused, in his alleged confessional statement had never admitted that he had any knowledge about the narcotics or he was trafficking same from one place to another---Prosecution having failed to prove its case beyond reasonable doubt, conviction and sentence awarded to accused by the Trial Court vide impugned judgment, was set aside; accused was acquitted of all the charges against him and he was set free.

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

----S. 9(c)---Qanun-e-Shahadat (10 of 1984), Art. 37---Criminal Procedure Code (V of 1898), S. 164-Possession of narcotics---Appreciation of evidence---Where confession appeared to be exculpatory and accused had shown his total ignorance about the concealment of narcotics in the vehicle, concealment of narcotics with conscious knowledge could not be attributed to the accused---Mere recovery of narcotics from a vehicle, would not automatically connect accused with contraband article, unless the prosecution succeeded in showing that he had conscious knowledge of the same---In the present case, narcotics were found 'lying concealed in a vehicle, not discoverable on mere inspection of the vehicle in absence of special knowledge about its concealment, to recover it, mere presence of a person in such vehicle could not make him liable for conscious possession of such contraband articles---Prosecution was bound to show that presence of narcotics was within the knowledge of accused; or that he had such a connection with the vehicle which would make his presence in the vehicle as amounting to his conscious possession of such contraband articles lying concealed in the vehicle.

Noor Alam Khan for Appellant.

Miss Suraya Jabeen for the State.

Date of hearing: 21st June, 2010.

2011 PCr. LJ 113

[Peshawar]

Before Attaullah Khan and Sher Muhammad Khan, JJ

BADSHAH REHMAN alias BADSHAH---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No. 77 and Criminal Revisions Nos. 10 and 18 of 2009, decided on 19th October, 2010.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Case was of solitary eye-witness who was father of the deceased---Certain aspects of the case like statement of the complainant/father of the deceased, medial report and site plan had created reasonable doubt about presence of complainant at the time of occurrence---Complainant had tried to improve his statement and fill up the lacunas found therein---Contradictions in the statement of complainant, site plan and medical evidence could not be easily ignored---Investigating Officer in his cross-examination had admitted that deceased. was .a hardened and desparate person having bad reputation---Possibility could not be ruled out that murder of deceased might have been committed by some body else, more particularly when he was charged for lurking house trespass, using force for extortion and outraging modesty of women---Only evidence against accused was his abscondence for more than two years---Abscondence was corroboratory piece of evidence, but not substantial; and in absence of other material evidence sufficient for conviction, abscondence would lose its importance; and merely on the ground of abscondence the conviction could not be awarded to accused---Order of conviction passed by the Trial Court against accused, being not sustainable, he was acquitted of the charges levelled against him.

Matiul Haq and 6 others v. The State 1983 PCr.LJ 482; Riaz Maseeh alias Mithu v. The State 1995 SCMR 1730; Saeedullah v. Shah Nazar and others 2001 PCr.LJ 1740; Jan Alam v. The State and another 2004 PCr.LJ 68 and PLD 2004 Pesh. 32 ref.

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

----S. 302(b)--- Qatl-e-amd--- Appreciation of evidence--- Benefit of doubt---Relationship of witness with deceased---Effect---Relationship of witness with the deceased was not disqualification to outrightly disbelieve his testimony---If however the statement of solitary witness of closely related to the deceased was not in harmony with material on record, conviction on the basis of such witness, could not be recorded---Single infirmity, creating reasonable doubt in the prudent mind was sufficient for giving benefit of doubt to accused.

Riaz Maseeh alias Mithu v. The State 1995 SCMR 1730; Saeedullah v. Shah Nazar and others 2001 PCr.LJ 1740 and Jan Alam v. The State and another 2004 PCr.LJ 68 ref.

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

----S. 302(b)---Qatl-e-amd----Appreciation of evidence---Benefit of doubt---Site plan, evidentiary value of---Contradictions between medical report and ocular testimony---No doubt site plan was not substantive piece of evidence and contradictions between medical report and ocular testimony were also not of vital importance, but when different pieces . of evidence of prosecution, did not corroborate each other on important aspect; and when the solitary and closely related witness of the deceased concealed material facts and tried at every stage to improve his version; then contradictions appearing in the site plan and medical report should be given weight; and the benefit, if any, arising of the same must be extended to accused.

Anwar-ul-Haq for Appellant.

Farooq Khan Sokari for Complainant.

Farooq Akhtar for the State.

Date of hearing: 19th October, 2010.

2011 PCr. L J 172

[Peshawar]

Before Abdul Aziz Kundi, J

HAMID YOUSAF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 657 of 2010, decided on 29th October, 2010.

Penal Code (XLV of 1860)---

----S. 489-C---Possessing counterfeit currency notes---Appreciation of evidence---Accused had no knowledge nor had reason to believe that the counterfeit currency notes were in fact forged or counterfeit; and he did not intend to use the same as genuine; or that it could be used as genuine---Basic and mandatory requirements of law, in circumstances, had not been fulfilled---Prosecution had failed to meet the requirement of S.489-C, P.P.C. for sustaining a conviction and sentence for the offence---Trial Court while convicting accused had found his "mere possession" and then without caring for essentials of 5.489-C, P.P.C. proceeded to pass impugned judgment, which was not sustainable---Said judgment was set aside and accused was acquitted of the charge levelled against him and he was set free.

Muhammad Aslam v. The State 2010 PCr.LJ 198; Gul Mali Khan v. The State 2004 MLD 145 and Azmat Khan v. The State 2000 PCr.LJ 1461 ref.

Miss Farhana Marwat for Appellant.

Malik Manzoor Hussain for the State.

Date of hearing: 25th October, 2010.

2011 P Cr. L J 185

[Peshawar]

Before Attaullah Khan, J

MUHAMMAD YOUNIS PARVEZ---Petitioner

Versus

QABOOL KHAN and 2 others---Respondents

Criminal Miscellaneous Bail Cancellation Petition No. 197 of 2010, decided on 20th September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.419, 420, 447, 427, 382, 506, 148 & 149---Cheating by personation, cheating and dishonestly inducing delivery of property, criminal trespass, mischief causing damage to the amount of fifty rupees, theft after preparation made for causing death, hurt or restraint in order to the committing of theft, criminal intimidation, rioting armed with deadly weapon, offence committed by member of unlawful assembly in prosecution of common object---Bail, confirmation of---Further inquiry---Factors to be considered in grant or confirmation of pre-arrest bail---Statements of the witnesses recorded under S.161, Cr.P.C. were not consistent with averments of F.I.R.---Alleged offences, were bailable and evidence on record did not connect the accused with commission of offence---Accused were no more required for investigation which was complete---Tentative assessment of material on record brought the case of the accused within ambit of further inquiry---Impugned order granting pre-arrest bail did not call for interference of High Court, the same was upheld---Considerations for grant and cancellation of bail were quite different: once bail had been granted by a competent court of law, strong and exceptional grounds were required for recalling the same-Maki fide, false implication and humiliation were main factors to be considered in grant of pre-arrest bail---In the present case no offence was shown to have been committed by the accused---Application for cancellation of bail was dismissed in circumstances.

1996 SCMR 74 fol.

Saifur Rehman Khan for Petitioner.

M. Karim Anjum Qasuria and Bahadur Khan Marwat, D.A.-G. for the State.

Date of hearing: 20th September, 2010.

2011 P Cr. L J 196

[Peshawar]

Before Muhammad Safdar Khan Sikandri, J

GUL SHAH DARAZ alias GULAY KHAN and 3 others---Applicants

Versus

THE STATE and 2 others---Respondents

Criminal Bail Application No. 366 of 2010, decided on 7th September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 427 & 34---Attempt to commit qatl-e-amd, mischief causing damage to the amount of fifty rupees; acts done by several persons in furtherance of common intention---Bail, grant of---Further inquiry---No specific role was attributed to any of the accused for inflicting injury on the thigh of the complainant by fire-shot---No direct motive on the part of the accused for committing murder of complainant could be established---Forensic Science Laboratory report was not available to ascertain active role of the accused in firing and sharing of their common intention necessitating further inquiry into the guilt of the accused as contemplated under subsection (2) of S.497, Cr. P. C. ---Reasonable grounds existed for believing that prima facie, accused were not connected with the guilt---Bail was granted in circumstances.

1997 PCr.LJ 1306 and 2008 PCr.LJ 1509 rel.

2004 PCr.LJ 1388 ref.

Muhammad Saddiq Khan for Applicants.

Miss Naheed Akhtar for the State.

S. Fakhar-ud-Din Shah for Complainant.

Date of hearing: 7th September, 2010.

2011 P Cr. L J 210

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

HAROON SHAH and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 1353 of 2010, decided on 18th October, 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---Nothing was available in shape of direct or circumstantial evidence against accused persons which could sufficiently connect them with the commission of offence---Earlier, deceased and lady were produced before Judicial Magistrate where both categorically submitted that they being sui juris had contracted a valid marriage; and the lady refused to seek protection in "Darul Aman" and they were released by the Magistrate---Only piece of evidence was last seen evidence to the effect that deceased and lady were seen in the company of accused persons---Nothing else was available which could suggest involvement of accused persons in the case---No doubt brutal murder of a young man took place and the dead body of the same was recovered from Tribal territory, but no one could be held responsible for said brutal murder on mere presumption, unless there was some convincing, direct and circumstantial evidence prima facie connecting accused with commission of offence---In absence of any convincing evidence, a wide net could not be thrown against the entire family of accused-Involvement of accused in the commission of offence would only depend upon further investigation and recording of evidence by the Trial Court during the trial, which had made case as that of further inquiry and arguable for the purpose of bail---Accused were released on bail, in circumstances.

Abdul Latif Afridi and Syed Fayaz Banari for Petitioners.

Amirullah Khan for the State.

Date of hearing: 18th October, 2010.

2011 P Cr. L J 242

[Peshawar]

Before Sher Muhammad Khan, J

KHAWAJA MUHAMMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No. 463 of 2010, decided on 26th November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/324---Qatl-e-amd and attempt to Qatl-e-amd---Bail, grant of---Case of further inquiry---Lalkara---Accused was father of absconding accused and he had been attributed only proverbial lalkara without any lethal weapon in his possession at the time of occurrence---Effect---Five other persons were charged for causing three bullet entry wounds to deceased---Accused had been shown present in his fields in the site plan at a distance of about 65 paces from other accused---Was difficult to determine whether accused had any intention to participate in committing offence or not---Case of accused required further inquiry into his guilt---Bail, was granted in circumstances.

Rafique Khan v. The State 1995 SCMR 343 and Amanat Ali v. The State 1993 SCMR 1992 ref.

Wajid Ali v. Mumtaz Ali Khan 2000 MW 1172 and Nasir Ahmad v. The State PLD 1997 SC 34, distinguished.

Muhammad Karim Anjum for Petitioner.

Jehan Zeb Ahmad Chughtai for the State.

Saif-ur-Rehman Khan for the Complainant.

Date of hearing: 26th November, 2010.

2011 P Cr. L J 277

[Peshawar]

Before Syed Sajjed Hussan Shah and Sardar Shaukat Hayat, JJ

NASRULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 442 and 495 of 2008, decided on 29th October, 2010.

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

---Ss. 9(c), 25 & 29---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5---Criminal Procedure Code (V of 1898), S.103---Possession of narcotics---Appreciation of evidence---Recovery of contraband and registration documents and number plates of the vehicle from accused corroborated the prosecution story---Accused failed to explain plausibly the purpose of his journey in public/government vehicle without . permission of the officer concerned---No reason for false implication through planting huge quantity of contraband was alleged or established---Section 25 of the Control of Narcotic Substances Act, 1997 excluded the operation of S.103, Cr.P.C. in narcotic cases wherein recovery was made on highway, road side or from a moving vehicle---Rules 4 & 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001 placed no bar on the Investigating Officer to send the samples beyond/after 72 hours of the seizure, receive the Forensic Science Laboratory report after 15 days and place the report so received before the Trial Court---Rules 4 & 5 being directory and not mandatory, could not control the substantive provisions of the Control of Narcotic Substances Act, 1997 and the same had to be applied in such a manner that would not frustrate the purpose of the Control of Narcotic Substances Act, 1997---Failure to follow Rr.4 & 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 would not render the search, seizure and arrest under Control of Narcotic Substances Act, 1997 an absolute nullity---In the absence of any allegation of tampering with the contraband, delay would not affect the result of analysis---Accused failed to rebut the presumption of possession of illicit articles under S.29 of the Control of Narcotic Substances Act, 1997 and could not point out any illegality or non-reading or misreading of evidence warranting interference of High, Court in appellate jurisdiction---Appeal was dismissed in circumstances.?

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

----S. 25---Criminal Procedure Code (V of 1898), S.103---Exclusion of application of S.103, Cr.P.C. in narcotic cases---Scope---S. 25 of the Control of Narcotic Substances Act, 1997 excluded operation of S.103, Cr.P.C. in narcotic cases wherein recovery was made on highway, roadside or from a moving vehicle.?

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

----S. 103-Control of Narcotic Substances Act (XXV of 1997), S.25---Operation of S.103, Cr.P.C. was excluded to narcotic cases by virtue of S.25 of the Control of Narcotic Substances Act, 1997 wherein recovery was made on highway, roadside or from a moving vehicle.?

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

----Rr. 4 & 5---Nature, application, effect and scope of R.4 of Control of Narcotic Substances (Government Analysts) Rules, 2001---Rules 4 & 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 placed no bar on the Investigating Officer to send the samples beyond/after 72 hours of seizure and to receive the Forensic Science Laboratory Report after 15 days and place the same before the Trial Court---Rules 4 & 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 being directory and not mandatory, could not control the substantive provisions of the Control of Narcotic Substances Act, 1997 and the same had to be applied in such a manner that would not frustrate the purpose of the Control of Narcotic Substances Act, 1997---Failure to follow Rr.4 & 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 would not render the search, seizure and arrest under Control of Narcotic Substances Act, 1997 an absolute nullity---In the absence of any allegations of tampering with the contraband, delay would not affect the result of analysis.?

2001 SCMR 36 fol.

2000 PCr.LJ 907; 2006 MLD 1121 and PLD 2006 Pesh. 39 rel.

Kifayatullah for Appellant.

Lal Jan Khattak A.A.-G. for the State.

Date of hearing: 2nd September, 2010.

2011 P Cr. L J 317

[Peshawar]

Before Yahya Afridi, J

BAKHT SHER---Appellant

Versus

JANAN and 3 others---Respondents

Criminal Appeal No. 274 of 2010, decided on 25th October, 2010.

Penal Code (XLV of 1860)---

----Ss. 279, 320, 337-G & 427---Rash driving or riding on public way, qatl-e-khata by rash or negligent driving, hurt by rash and negligent driving, mischief causing damage to the amount of fifty rupees---Appreciation of evidence---Complainant though was not produced by prosecution yet testimony of injured witnesses which supported prosecution version could not be brushed aside---Where reasonable and trustworthy evidence was available, non production of a witness would not be fatal to prosecution case---Witness though identified the accused in court yet conviction could not be based on identification of accused by witness in the court---Appeal of the accused was accepted and he was acquitted of the charges.

Muhammad Asghar v. The State 2010 SCMR 1706 and Tayyab v. The State 1995 SCMR 412 fol.

Khawaja Muhammad Khan Gara for Appellant.

Wahidullah Khan for Respondents.

Sahibzada Asadullah for the Complainant.

Date of hearing: 25th October, 2010.

2011 P Cr. L J 342

[Peshawar]

Before Sardar Shaukat Hayat and Yahya Afridi, JJ

KASHIF NADEEM---Appellant

Versus

AIMAL KHAN and another---Respondents

Criminal Appeal No. 498 and Criminal Miscellaneous Petition No. 12 of 2010, decided on 13th October, 2010.

Criminal Procedure Code (V of 1898)---

---Ss. 517 & 561-A---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 32 & 33---Possession of narcotics---Confiscation of vehicle allegedly used in offence---Petition for quashing of confiscation order and return of vehicle---Treating petition as appeal---Accused were acquitted from the charges levelled against them, while vehicle allegedly used in the commission of offence was ordered by the Trial Court to be kept intact till expiry of appeal/revision period; and thereafter dispose of the same in accordance with law---Appellant/real owner filed application for custody of vehicle in question, but his application having been dismissed by the Trial Court said owner of vehicle filed petition under S. 561-A, Cr. P. C. for setting aside order of the Trial Court---Said petition was treated as appeal and was disposed of as such---Owner of vehicle in question, was not put on notice by the Trial Court as to why vehicle could not be confiscated---Prosecution during investigation also did not bother to trace out owner of said vehicle through its registration number---Owner of vehicle had lodged F.I.R. under S.381-A, P.P.C. at Police Station with regard to theft of vehicle---Provision of S.32 of Control of Narcotic Substances Act, 1997, permitted confiscation of vehicle only when it was proved that its owner had knowledge that the offence was being or was to be committed---In the present case, Trial Court, without any proper inquiry dismissed application of the owner, without complying with Ss.32 & 33 of Control of Narcotic Substances Act, 1997---Impugned order was set aside and case was remanded to the Trial Court to decide application of appellant/owner of vehicle in accordance with law.

Aamir Khalil v. Government of Pakistan and others PLD 2004 Pesh. 251 and Adamjee Insurance Company v. The State PLD 2009 Lah. 625 rel.

Asad Jan for Appellant.

Nemo for Respondents.

Malik Rehan for the State.

Date of hearing: 13th October, 2010.

2011 P Cr. L J 352

[Peshawar]

Before Mian Fasih-ul-Mulk and Abdul Samad Khan, JJ

DEWAN SALMAN FIBRE LTD.---Petitioner

Versus

THE STATE and others---Respondent

Writ Petition No. 255 of 2009, decided on 19th October, 2010.

North-West Frontier Province Public Property (Removal of Encroachment) Act (VII of 1977)---

----Ss. 3 & 5---Constitution of Pakistan, Art. 199---Constitutional petition---Encroachment---Property in question which previously was owned by District Council, was acquired and two Khasra Numbers out of said property were leased out to the petitioner for 99 years for establishment of Industrial Unit---Petitioner, after taking possession of land raised construction over the same---Subsequently District Nazim on complaint of Nazim passed order of removal of encroachment and pursuant to said order authorities eradicated iron gate of the petitioner---Application filed by the petitioner before Justice of Peace under Ss.22-A & 22-B, Cr.P.C. against said eradication having been rejected by Justice of Peace, petitioner had filed constitutional petition---Counsel for the petitioner had rightly pointed out that property in question was no more a public property and District Nazim was not within his rights to interfere in the matter---Impugned order was bad in law for two counts i.e., that even, if in view of District Nazim it was a public property, he could not have taken any action without first invoking the provisions of Ss.3 & 5 of North-West Frontier Province Public. Property (Removal of Encroachment) Act, 1977 and that impugned order amounted to annul the findings of High Court upheld upto Supreme Court---Impugned order and all actions taken subsequent thereto, were based on malice and in violation of principles of natural justice---Petitioner no doubt could go to civil court for challenging the impugned order, but resort to a civil court in circumstances of the case was not speedy and efficacious remedy---Constitutional petition was allowed.

Date of hearing: 19th October, 2010.

2011 P Cr. L J 363

[Peshawar]

Before Mazhar Alam Khan Miankhel and Yahya Afridi, JJ

FAYAZ KHAN---Appellant

Versus

THE STATE and others---Respondents

Criminal Appeal No. 200 and Criminal Revision No. 67 of 2009, decided on 11th November, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Entire evidence led by the prosecution on the very face of it created many doubts and even the presence of eye-witnesses at the time of occurrence became doubtful---Points shown in the site plan made prosecution story hardly to be believed---Occurrence was committed in presence of two brothers and mother of deceased, but they had not shown any resistance and no attempt on their behalf was shown to have made to overpower accused or try to rescue the deceased from the clutches of accused or to chase the decamping accused---Story put forth by the prosecution, was unnatural and hard to be relied upon which was totally against the natural human conduct, in circumstances---No independent and disinterested witness had come forward to give support even to the circumstantial evidence---Such aspect of the case again made the occurrence a mysterious one---Complainant and two brothers of the deceased who were the eye-witnesses of the occurrence, were highly interested witnesses and under the law statement of such witnesses were required to be considered with great caution and care---Report was lodged after preliminary investigation by the Police---Material contradiction in the statements of the highly interested witnesses, had made their presence at the spot doubtful---When ocular account of the case became doubtful, then mere recovery of empties alone or blood stained earth, could in no way be made basis for conviction---In absence. of any other direct, circumstantial or corroborative piece of evidence, abscondence of accused alone could not be considered as sufficient for conviction of accused---Such evidence could only be used as a corroborative piece of evidence and could not be a substitute of real evidence---Motive as alleged had not been proved from the record---Under criminal dispensation of justice, a single doubt appearing in the mind of a judge would be sufficient to discard the entire evidence on record and benefit of the same would go to accused---Prosecution having failed to prove charge against accused, conviction and sentence awarded to accused by the Trial Court, was set aside and he was acquitted of the charge levelled against him and he was set free.?

Rehmatullah v. Muhammad Iqbal and others 2006 SCMR 1517; Humayun v. The State and another 2005 PCr.LJ 337; Jan Alam v. The State and another 2004 PCr.LJ 68; Abdul Sattar and others v. The State 2002 PCr.LJ 51; Abdul Subhan v. Raheem Bakhsh and another PLD 1994 SC 178; Nawaz Ali and another v. The State 1981 SCMR 132; Saced and 2 others v. The State 2003 SCMR 747; Muhammad Ashraf and others v. The State 2005 PCr.LJ 1321; Mohabbat v. The State 1990 PCr.LJ 73; Muhammad Fayyaz and another v. The State 2003 PCr.LJ 64; Waris Khan v. The State 2001 SCMR 387; Shamsud Doha v. The State and another 2005 PCr.LJ 310; Muhammad Taj and others v. The State 2008 PCr.LJ 390; Aurangzeb v. The State 2005 PCr.LJ 1605 and Allah Bakhsh v. Shammi and others PLD 1980 SC 225 ref.

Mumtaz Ahmad for Appellant.

Malik Manzoor Hussain for the State.

S. Wilayat Ali Shah Bokhari for the Complainant.

Date of hearing: 26th October, 2010.

2011 P Cr. LJ 416

[Peshawar]

Before Muhammad Safdar Khan Sikandri, J

MUHAMMAD SAJID---Petitioner

Versus

SAIF-UR-REHMAN and 2 others---Respondents

Criminal Miscellaneous B.C. No. 430 of 2010, decided on 26th November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2) & (5)---Penal Code (XLV of 1860), Ss.408/420/471/34---Criminal breach of trust, cheating, using as genuine a forged document---Cancellation of bail, application for---Accused persons remained in custody, but nothing had been recovered from their possession, nor any confessional statement had been made by them---Merits of the case would be scrutinized by the Trial Court when evidence would be recorded---Trial Court while granting bail had not discussed the merits of the case deeply---Offences for which accused were charged, did not fall under the prohibitory clause of S.497, Cr.P.C.---Grant of bail in such like cases was a rule and refusal an exception---In spite of the fact that huge amount had been embezzled, it was shrouded in mystery as to who was responsible for the mischief which could be determined only by the Trial Court on recording of evidence---Strong and exceptional grounds were required for cancelling bail granted to accused by competent court---Accused was not shown to have misused the concession of bail---Order granting bail to accused did not call for interference as the impugned order did not suffer from any infirmity, irregularity or miscarriage of justice---No case having been made out for cancellation of bail, application for cancellation of bail was dismissed.

Muhammad Azhar v. Dilawar and another 2009 SCMR 1202 and Mst. Amina Bibi v. Muhammad Amin 2010 Cr.LJ 724 ref.

Abdur Rashid Khan for Petitioner.

Muhammad Ismail Khan Alizai for Respondents.

Miss Naheed Akhtar for the State.

Date of hearing: 26th November, 2010.

2011 P Cr. L J 423

[Peshawar]

Before Liaqat Ali Shah, J

Syed ZAMAN---Petitioner

Versus

MUHAMMAD JAVED and another---Respondents

Criminal Miscellaneous Quashment Petition No. 133 of 2010, decided on 19th July, 2010.

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

----Ss. 9, 32 & 74---Criminal Procedure Code (V of 1898), S.561-A---Possession of narcotics---Bar contained in S. 74, Control of Narcotic Substances Act, 1997---Scope---Petition for return of vehicle allegedly used in the offence---Counsel for the petitioner had contended that on the principle of analogy of S.32 of Control of Narcotic Substances Act, 1997 the vehicle in question should have been returned by the court to him; that the petitioner had no knowledge of the fact that the driver of the vehicle was using the same for trafficking of narcotics; and that the petitioner earned his livelihood from the said vehicle---Petitioner had provided documents pertaining to the vehicle in question to the Police---Petitioner had not been arrayed as an accused, which would indicate that the Investigating Agency had also admitted his claim---Bar contained in Proviso to S.74 of Control of Narcotic Substances Act, 1997 was not absolute and vehicle involved could be given in cases, where it could be, prima facie, held that the person claiming to be the owner had no knowledge that the vehicle was being used for narcotics---Allowing petition, High Court directed that the vehicle would be returned to the petitioner on furnishing bond.

Noor Alam Khan for Petitioner

Lal Jan Khattak, A.A.-G. for Respondents.

Date of hearing: 19th July, 2010.

2011 P Cr. L J 431

[Peshawar]

Before Attaullah Khan, J

ZAFAR ALI KHAN---Petitioner

Versus

THE STATE and another---Respondents

Cr. M.B.A. No. 455 of 2010, decided on 22nd November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.365/34---Abduction---Bail, grant of---After recovery of alleged abductee he was examined by the Police under S.161, Cr.P.C., but record was silent as to whether his statement was recorded under S.161, Cr.P.C. by the Magistrate or not---Case being that of abduction, statement of alleged abductee before the Magistrate was necessary---Failure on the part of prosecution to record said statement, would favour accused's plea for bail---At the initial stage, accused was named on the basis of suspicion---Except statement of abductee, that too under S.161, Cr.P.C., no other ocular evidence was available to connect accused with the abduction of the alleged abductee---Unexplained delay in lodging F.I.R. was not explained in the case---Two co-accused in the case had been released on bail and bail cancellation application moved by the complainant was rejected---Case of accused was at par with said co-accused who were on bail---Principle of consistency demanded that bail be granted to accused---Bail was granted.

Muhammad Ismail Alizai for Petitioner.

Sanaullah Shamim Gandapur, D.A.-G. for the State.

Ghulam Muhammad Sapal for the Complainant.

Date of hearing: 22nd November, 2010.

2011 P Cr. LJ 442

[Peshawar]

Before Muhammad Qasim Khan, J

MUHAMMAD AKHTAR---Petitioner

Versus

THE STATE and another---Respondents

Writ Petition No. 4682-Q of 2010, decided on 29th November, 2010.

Penal Code (XLV of 1860)---

----S. 302/34---Criminal Procedure Code (V of 1898), Ss. 200, 204, 265-K & 561-A---Constitution of Pakistan, Art. 199---Constitutional petition---Qatl-e-Amd---Quashing of private complaint---Summoning of accused---Evidence, recording of-Accused were summoned in complaint case and charge was framed against them---Trial Court dismissed application under S. 265-K, Cr.P.C. filed by accused persons---Validity---Summoning of accused in complaint case and normally framing of charge did not necessarily mean that he stood convicted---Evidence of five prosecution witnesses had been recorded and neither that piece of evidence was discussed in the order passed by Trial Court nor in the application---Accused did not mention any such benefit in their application, which could be derived from evidence of witnesses and nor that evidence was annexed with petition to be examined by High Court---Order passed by Trial Court dismissing application under S. 265-K, Cr.P.C., did not contain any illegality, perversity or any arbitrariness---High Court declined to interfere in the order passed by Trial Court dismissing' application under S. 265-K, Cr. P. C. ---Petition was dismissed in circumstances.

Bashir Ahmad v. Zafar-ul-Islam and others PLD 2004 SC 298; The State through Advocate-General, Sindh High Court of Karachi v. Raja Abdul Rahman 2005 SCMR 1544; Shaikh Muhammad Yamin v. The State 1973 SCMR 622 and Sheikh Mahmood Saeed and others v. Amir Nawaz Khan and another 1996 SCMR 839 ref.

Malik Dost Muhammad Awan for Petitioner.

Malik Mumtaz Akhtar, Additional Advocate-General for the State.

Imran Mahmood Akhtar for Respondent No. 2.

2011 P Cr. L J 495

[Peshawar]

Before Mian Fasih-ul-Mulk and Abdul Samad Khan, JJ

ABDUL RASHID---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No. 118 of 2009, decided on 14th December, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Though it was an unseen occurrence, but the prosecution had been able to prove its case against accused by leading confidence inspiring circumstantial evidence, with no apparent motive---Accused had made voluntary confessional statement and narrated the whole story---Medical evidence had verified the folds of evidence collected in investigation and all the evidence found consistent with each other including oral set of evidence on record---Prosecution witnesses had given full evidence which was not shattered and it made clear cut chain of facts---Accused, in circumstances, had caused qatl-e-amd in the shape of first administering poisonous cooked rice and thereafter caused his death by strangulation by using trouser string---As accused had been found guilty of commission of heinous crime in brutal and callous manner, sentence imposed by the Trial Court on accused, would meet the ends of justice.

M. Bilal Khan for Appellant.

Mukhtiar Alam for the State and Complainant.

Date of hearing : 14th December, 2010.

2011 P Cr. L J 526

[Peshawar]

Before Mian Fasih-ul-Mulk and Abdul Samad Khan, JJ

SHAHZAD alias KHANAY---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No. 88 of 2009, decided on 23rd December, 2010.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 337-F(iii) & 337-Y---Qatl-e-amd, attempt to commit qatl-e-amd, causing Mutalahimah---Appreciation of evidence--Sentence, reduction in---Mitigating circumstances---Complainant and one of the prosecution witnesses, who were totally disinterested and natural witnesses of the occurrence, were examined; and their statements inspired confidence---Said witnesses were subjected to lengthy cross-examination, but their evidence remained unshattered---Certain infirmities and contradictions in the statements of witnesses, were not of such a nature, which would imbalance the entire prosecution evidence and create doubt favouring accused---Sufficient ocular as well as circumstantial evidence supported by medical evidence was available which reasonably connected accused with commission of offence---Trial Court had rightly convicted accused under S.302(b), P.P.C.---No motive was advanced in the F.I.R., actual cause of occurrence was not known---Something abruptly had happened before occurrence which was deliberately suppressed by the prosecution---Normal penalty for offence of murder was death, but in appropriate cases where some extenuating circumstances were available, courts had discretion to award lesser punishment of imprisonment for life---No background of any previous enmity or deep-rooted hostility existed between accused and deceased---Accused fired only one shot and did not repeat it---All such factors cumulatively, had made out a case for mitigation and accused deserved lesser penalty of life imprisonment instead of death, which would meet the ends of justice---Maintaining conviction of accused his sentence under S.302(b), P.P.C. was reduced to imprisonment for life, instead of death, while the remaining impugned judgment of conviction and sentence, was maintained.

Shad Muhammad Khan for Appellant.

M. Muzaffar Khan Swati for Respondent.

Ghulam Younis Khan Tanoli for the State.

Date of hearing : 23rd December, 2010.

2011 P Cr. L J 550

[Peshawar]

Before Attaullah Khan, J

SAMI ULLAH---Petitioner

Versus

Mst. KALSOOM BIBI and 2 others---Respondents

Criminal Miscellaneous Bail Petition No. 517 of 2010, decided on 3rd January, 2011.

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---Report was lodged with all reasonable promptitude and there was no chance of consultation, deliberation or false involvement of accused who along with co-accused was directly charged for killing the deceased by firing with kalashnikovs---Two eye-witnesses, had fully supported the contents of the F.I.R. as well as of guilt of accused---Non-recovery of any spent bullet, was not serious matter to be taken at bail stage---Alleged plea of alibi of accused was a question to be determined by the Trial Court---Such plea of alibi was required to be proved through exhaustive, cogent and reliable evidence; and not merely on the basis of statements of few persons recorded under S.161, Cr.P.C. by the Police---On the basis of available record, accused was reasonably connected with the commission of the offence, which carried a capital punishment and fell under the prohibitory clause of S.497, Cr. P. C---Bail was refused.

Shaukat Hayat Khan Khakwani for Petitioner.

Sanaullah Shamim, D.A.-G. for Respondents.

Muhammad Nisar Khan Sokai for the Complainant.

Date of hearing: 3rd January, 2011.

2011 P Cr. L J 559

[Peshawar]

Before Zia-ur-Rehman Khan, J

UMAR DARAZ and another---Petitioners

Versus

THE STATE-Respondent

Criminal Miscellaneous Bail Petition No. 1514 of 2010, decided on 21st December, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession and trafficking of narcotics---Bail, grant of---Further inquiry---Record had shown that charas was not recovered from the direct custody of accused persons---Whether accused persons had knowledge of the presence of contrabands on the roof top of the bus; and for that purpose they had shared their knowledge, was a question which would be determined after recording of evidence---Mere presence of accused persons, as driver and cleaner of said bus, was not sufficient for holding accused persons responsible for trafficking the recovered contrabands---Si.ch fact was a factual controversy, required recording of evidence and thus was a matter of further inquiry---Accused who were in the lock-up since 26-9-2010/date of their arrest, were thoroughly interrogated, investigation against them was complete, their further detention would serve no useful purpose to the prosecution---In view of the non-existence of reasonable grounds to connect accused persons prima facie with the commission of the offence, their case being that of further inquiry, was fit for considering their plea for their release on bail-Accused were allowed to be released on bail, in circumstances.

Muhammadullah v. State 2009 SCMR 954 ref.

Noor Alam Khan for Petitioners.

F.M. Saber for the State.

Date of hearing: 21st December, 2010.

2011 P Cr. L J 594

[Peshawar]

Before Abdul Samad Khan, J

Mrs. RANIA IBRAHIM QURESHI---Petitioner

Versus

DISTRICT & SESSIONS JUDGE, ABBOTTABAD and 2 others---Respondents

Writ Petition No. 629 of 2010, decided on 9th December, 2010.

Criminal Procedure Code (V of 1898)---

----S. 491--- Constitution of Pakistan, Art. 199--- Constitutional petition---Dispute as to custody of children between husband and wife---Habeas corpus proceedings---District and Sessions Judge dismissed petitioner's application filed under S.491, Cr.P.C. for recovery of her minor children from her husband---Validity---Allegation of snatching of children, being contrary to petitioners' averments in the constitutional petition, could not be believed---Questions of snatching of children and their custody could be decided by competent court under Guardians and Wards Act, 1890 after recording evidence of the parties instead of resorting to remedies either under S.491, Cr.P.C. or Art.199 of the Constitution---High Court, in habeas corpus proceedings, was invested with powers to cause production and release of detenu from illegal and improper detention by Police or private person but where dispute pertained to custody of minors between husband and wife, parties could avail remedy under Guardians and Wards Act, 1890---Order passed by Court of Session to such effect did not warrant interference of High Court in constitutional jurisdiction---Petition was dismissed.

Muhammad Nouman Shams Qazi for Petitioner.

Jehangir Elahi for Respondents.

Date of hearing: 9th December, 2010.

2011 P Cr. L J 607

[Peshawar]

Before Attaullah Khan, Muhammad Safdar Khan Sikandri, JJ

ABDULLAH HAROON---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No. 4 of 2010, decided on 16th February, 2010.

Penal Code (XLV of 1860)---

----Ss. 409/468/477---Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), S.5(7)---Criminal Procedure Code (V of 1898), S. 498---Criminal breach of trust, forgery, using as genuine a forged document---Bail, grant of---Fixation of amount of bail---Accused was granted bail subject to providing security in a sum of Rs. one crore, with two sureties---Accused was reportedly a student and he might not be in a position to arrange sureties with such a huge amount---F.I.R. had shown that alleged embezzlement was to the extent of 20 million approximately; and for the said embezzlement three accounts had been mentioned in the F.I.R.---Release order on bail in the sum of Rupees ten million was harsh, because nobody would be ready to stand surety for accused against such a robust amount---Surety amount, in circumstances was reduced from Rupees ten millions to Rupees five million, which would meet the ends of justice.

Abdur Rashid Khan for Petitioner.

Saleemullah Khan for the State.

Muhammad Anwar Awan for Respondent No. 2.

Date of hearing: 16th February, 2010.

2011 PCr.LJ 611

[Peshawar]

Before Liaqat Ali Shah and Zia-ur-Rehman Khan, JJ

SARDAR HAFEEZ---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No. 399 of 2009 and Criminal revision No. 134 of 2008, decided on 16th June, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)---West Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-e-amd and possession of arms---Appreciation of evidence---Confessional statement of accused, the eye-witness account and medical evidence, had proved case against accused, which was not even controverted by the counsel for accused---Accused, in circumstances, could not be released on probation---Judgment of the Trial Court needed no interference, both on legal and factual sides---Conviction and sentence as recorded by the Trial Court under S.302, P.P.C. were maintained; however, conviction of accused under S.13 of West Pakistan Arms Ordinance, 1965, was set aside because the shotgun had not been recovered from the possession of accused, but was produced by father of accused---Benefit of S.382-B, Cr.P.C. was also extended to accused and revision filed by the complainant for enhancement of sentence of accused, was also dismissed.

Barrister Zahur-ul-Haq for Appellant.

Ishtiaq Ibrahim, A.A.-G. and Abdul Zakir Tareen for Respondents.

Date of hearing: 16th June, 2010.

2011 P Cr. L J 663

[Peshawar]

Before Attaullah Khan, J

ABDUL GHAFAR---Appellant

Versus

NAZIR KHAN and another---Respondents

Criminal Appeals Nos. 48 and 54 of 2010, decided on 15th October, 2010.

Penal Code (XLV of 1860)---

---Ss. 324 & 34---Criminal Procedure Code (V of 1898), S.417---Attempt to commit qatl-e-amd, acts done by several persons in furtherance of common intention---Appeal against acquittal---Appreciation of evidence---Single firearm injury caused on the person of the injured was not specifically attributed to any of the three accused persons out of whom two were already dead--Empty recovered from scene did not match the pistol assigned to the accused--Once an accused had been acquitted by a competent court, such accused earned the double presumption of innocence which could not be set at naught unless grave illegality or injustice had been committed by the Trial Court which did not commit any illegality---Appeal against acquittal was dismissed in circumstances.

Muhammad Yaqoob Khan Marwat for Appellant.

Saleemullah Khan Ramazai for Respondents.

Sanaullah Shamim, D.A.-G. for the State.

Date of hearing: 15th October, 2010.

2011 P Cr. L J 696

[Peshawar]

Before Attaullah Khan and Muhammad Safdar Khan Sikandri, JJ

THE STATE through Advocate-General, N.-W.F.P., Peshawar---Appellant

Versus

GULLA---Respondent

Criminal Appeal No. 22 of 2005, decided on 28th September, 2010.

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

----Ss. 9 & 21---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3/4---Criminal Procedure Code (V of 1898), S. 417(2-A)--Possession of narcotics---Appeal against acquittal---Appreciation of evidence---Accused had been acquitted on the ground that under the Police Order, 2002, the complainant was not incharge of investigation, but despite that he carried out the same, which was illegal and its benefit was to be given to accused---Validity---Finding of the Trial Court was against the law for the reason that Police Order, 2002 was not applicable to the case and provisions of Control of Narcotic Substances Act, 1997 were applicable thereto---According to S.21 of Control of Narcotic Substances Act, 1997, an officer not below the rank of Sub-Inspector of Police or equivalent would carry investigation in such a case---In the present case, Police Order, 2002 would have no role to play---Finding of the Trial Court, was set aside, in circumstances.

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

----S. 9---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4---Criminal Procedure Code (V of 1898), S. 417(2-A)---Possession of narcotics---Appeal against acquittal---Appreciation of evidence---Sample was sent to the Laboratory for chemical analysis with unexplained delay of twenty eight days; due to such unexplained delay, process of alleged recovery had become doubtful---Contradiction existed in the statements of prosecution witnesses with regard to identification of accused---Both recovery witnesses were Police Officials and despite availability of private individuals on the spot none was associated with the recovery and search---Though S.25 of Control of Narcotic Substances Act, 1997 had excluded S.103, Cr.P.C., but great care and caution was to be taken for association of private witnesses if available at the time of arrest and recovery---Lady accused was arrested from a Coach where she was present along with other passengers, but Investigating Officer had failed to associate any of such passengers or even driver or conductor of the bus---Appeal against acquittal was dismissed in circumstances.

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

----S. 9---Prohibition (Enforcement of Hddd) Order (4 of 1979), Arts. 3/4---Criminal Procedure Code (V of 1898), S. 417(2-A)---Possession of narcotics---Appeal against acquittal---Limitation---Appeal in the present case was filed after more than three months of impugned judgment---Under subsection (2-A) of S.417, Cr. P. C. a person aggrieved by the order of acquittal passed by the court could file appeal within thirty days---Appeal being hopelessly barred by time and also without any application for condonation of delay, could be dismissed on the ground of limitation alone.

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

----S. 417(2-A)---Appeal against acquittal---Interference---Scope---Once an accused was acquitted by a Competent Court of law after facing the agonies of protracted trial, he would earn the presumption of double innocence which could not be disturbed slightly, unless grave illegality and injustice was established in the impugned order of acquittal.

Sanaullah Shamim, D.A.-G. for Appellant.

Respondent in person.

Date of hearing: 28th September, 2010.

2011 P Cr. L J 844

[Peshawar]

Before Miftah-ud-Din Khan, J

SHER AZAM---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No. 115 of 2010 and Murder Reference No. 13 of 2010, decided on 2nd March, 2011.

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

----Ss. 302(b)/109---Criminal Procedure Code (V of 1898), Ss.164 & 364---Qanun-e-Shahadat (10 of 1984), Arts.43 & 90---Qatl-e-amd---Appreciation of evidence---Confession---Counsel for accused had contended that as co-accused had been acquitted, accused could not be convicted on the same evidence---Contention was repelled as case of accused was not at par with co-accused as acquitted co-accused had not confessed her guilt before a competent court; while the accused had confessed his guilt---Confessional statement of accused was recorded within 24 hours of his arrest by competent Judicial Magistrate after observing all necessary codal formalities by putting all relevant and necessary questions to accused in accordance with High Court Rules and Orders and issuing requisite certificate in accordance with S.364, Cr.P.C.---Presumption of genuineness was attached to such certificate under Art.90 of Qanun-e-Shahadat, 1984---Such confessional statement of accused would be taken as proof against accused under Art.43 of Qanun-e-Shahadat, 1984---Nothing was available on record to show that confession was made by accused under pressure, coercion, duress or inducement, but same proved to be free, faithful and voluntary---Confessional statement was corroborated by medical evidence and recovery of weapon of offence---Prosecution version was supported by independent and impartial witness---Weapon of offence along with empty of .30 bore recovered from the spot was sent to Arms Expert and report of Arms Expert was positive---Charge of murder of deceased was proved beyond doubt against accused---Trial Court, in circumstances, was justified to convict accused and award the penalty of death to him---Conviction and sentence awarded to accused by the Trial Court, was maintained.

1989 SC (FSC 43; 2008 SCMR 336; 2010 SCMR 55; PLD 1976 Pesh. 135; 1992 SCMR 950; PLD 2006 SC 354; PLD 2005 SC 168; 2002 SCMR 1493; 1999 SCMR 1972; 1992 SCMR 1983; 2004 SCMR 477; 1995 SCMR 614 and PLD 1996 SC 1 ref.

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

----S. 164---Qanun-e-Shahadat (10 of 1984), Art.37---Confession---Evidentiary value---Confession and retracted confession---Distinction---Principles.

1992 SCMR 950; PLD 2005 SC 168; 1999 SCMR 1972; 1995 SCMR 617 and PLD 2006 SC 354 ref.

Azmatullah Malik for Appellant.

Abdul Wahid Khan for the State.

Saeed Akhtar Khan for the Complainant.

Date of hearing: 2nd March, 2011.

2011 P Cr. L J 877

[Peshawar]

Before Attaullah Khan and Syed Sajjad Hassan Shah, JJ

MUSTAFA---Appellant

Versus

AFIMAD KAMAL and another---Respondents

Criminal Appeal No. 69 of 2008, decided on 3rd February, 2011.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Interested witness---Necessity of corroboration---Scope---Where an eye-witness charged a person with commission of offence, the court was required to firstly determine whether he saw the accused; was he in a position to identify him and secondly that could he be believed for the conviction of accused without corroboration---If it was found by the court that the charge of the witness was reasonable from available circumstances, then in the absence of corroboration of witnesses, same could be believed---Corroboration of an interested witness, in circumstances, was not necessary always through some independent source---Mere relation of the witness with the deceased was no ground for discarding his evidence---Conviction could be recorded on the basis of ocular testimony of natural and reliable witness without seeking any corroboration, but said testimony was required to be scrutinized with great care and caution---Relationship of a witness with the deceased alone was not sufficient to discard his testimony---Capital punishment could be awarded even on the basis of circumstantial evidence, if found sufficient to connect accused beyond any reasonable doubts.

2007 SCMR 518; PLD 1977 SC 557; PLD 2007 SC (AJ&K) 102 and Mehtab Khan v. The State 1979 SC (AJ&K) 23 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Three prosecution witnesses, who were natural witnesses, their presence at the spot was natural and no contradiction was found in their evidence---F.I.R. was lodged with reasonable promptitude and no time was used by the complainant for deliberation and consultation in order to falsely rope in accused---Nothing was on record to show that witnesses had substituted real culprits---One of the witnesses was not related to the deceased and his presence at the spot was proved and he had recognized the accused---Said witness gave very straightforward statement which fully connected the accused with the commission of offence---Statements of prosecution witnesses were trustworthy and were corroborated by other witnesses---Despite long cross-examination, the defence had failed to shatter the evidence of said witnesses---Medical evidence corroborated the ocular version---Report of Forensic Science Laboratory was positive and motive was also proved---Incident being a daylight occurrence, there was no chance of mistaken identity and accused was already known to the complainant party---Discrepancies, if any, in ocular testimony, were to be ignored because those were minor in nature---Conviction awarded by the Trial Court to accused needed no interference and was maintained.

Mehtab Khan v. The State PLD 1979 SC (AJ&K) 23 and 2005 PCr.LJ 667 ref.

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

----S. 302(b)---Qatl-e-amd---Petition for enhancement of sentence---Murder in the case had been committed because of alleged illicit relations of the deceased with the sister of accused---Life imprisonment awarded to accused was sufficient, which could not be enhanced in view of the motive---Petition for enhancement of sentence was dismissed.

Ghulam Hur Khan Baloch for Appellant.

Jahanzeb Ahmed Chughtai for the State.

Saleemullah Khan Ranazai for the Complainant.

Date of hearing: 3rd February, 2011.

2011 P Cr. L J 904

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

SHER MUHAMMAD---Appellant

Versus

MUHAMMAD AKBAR and 2 others---Respondents

Criminal Appeal No. 58 of 2006, decided on 31st January, 2011.

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

----S. 324/34---Criminal Procedure Code (V of 1898), S.417(2-A)---Attempt to commit qatl-e-amd---Appeal against acquittal---Benefit of doubt---No specific role of causing injuries to the complainant and injured had been assigned to any of respondents/accused---Motive for. the occurrence as alleged by the complainant did not get support from the evidence of prosecution witnesses---Motive for the commission of offence, though was not necessary, but once a motive was alleged by the prosecution, then that had to be proved---Adverse inference, in circumstances, could be drawn against the prosecution for non-production of material witnesses of the occurrence without any plausible explanation---Manner as to how and in what circumstances, the occurrence took place was shrouded in mystery by concealing the material facts---Plea taken by the defence that the F.I.R. was lodged after preliminary investigation, was not without force---Both witnesses, having a previous ill-will over some landed property with accused, had not stated the whole truth and had suppressed some material facts to be brought on the record---Exclusion of the statements of witnesses recorded during inquiry and the statement of defence witness from consideration, would not absolve prosecution of its duty to prove the guilt of accused beyond a reasonable doubt, which onus resting upon the prosecution had not been satisfactorily discharged in the case---Even if, the defence version was kept aside from consideration, prosecution even then had failed to prove its case against accused persons beyond any shadow of reasonable doubt; and the benefit of doubt so arising in the case had rightly been extended to accused by the Trial Court-Impugned judgment, in circumstances, required no interference.

Riaz Masih alias Mitto v. The State 1995 SCMR 1730; Jan Alam v. The State and another 2004 PCr.LJ 68; Lal Khan v. The State 2006 SCMR 1846 and Muhammad Asghar alias Nannah and another v. The State 2010 SCMR 1706 ref.

(b) Criminal trial---

----Finding of Police---Nature---Finding of Police was not binding on the court as the Investigating Agency had duty under the law only to collect evidence; and it was the prerogative of court to give finding after recording evidence; and statements of accused regarding guilt or innocence of accused.

Anwar Shamim and another v. The State 2010 SCMR 1791 ref.

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

----Ss. 410 & 417(2-A)---"Appeal against conviction" and "appeal against acquittal"- Distinction--- Appreciation of evidence--Principles---Marked difference existed between appraisement of evidence in the appeal against conviction and in the appeal against acquittal---Appraisal of evidence in case of. appeal against conviction was done strictly while in the case of appeal against acquittal, it was only made when it appeared that there had been gross misreading of the evidence and would amount to miscarriage of justice.

Ghulam Sikandar's case PLD 1985 SC 11; Dr. Israr-ul-Haq v. Muhammad Fayyaz and another 2007 SCMR 1427; Saira Bibi v. Muhammad Asif 2009 SCMR 946; Fayyaz Akhtar v. State 1993 SCMR 828; Muhammad Iqbal v. Abid Hussain 1994 SCMR 1928; Azhar Ali v. The State PLD 2010 SC 632 and Inamullah v. The State PLD 2010 Pesh. 1375 ref.

Syed Muazam Jamil for Appellant.

Mushtaq Ahmad and Gut Rehman Mohmand for Respondents.

Miss Surrya Jabeen for the State.

Date of hearing: 14th January, 2011.

2011 P Cr. L J 925

[Peshawar]

Before Miftah-ud-Din Khan and Mian Fasih-ul-Mulk, JJ

MUHAMMAD IDREES---Appellant

Versus

THE STATE and 2 others---Respondents

Criminal Appeal No. 77 and Criminal Revision No. 29 of 2007, decided on 9th February, 2011.

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

----Ss. 302(b) & 84---Qatl-e-amd and act of a person of unsound mind---Appreciation of evidence---Accused was proved to be a known patient of "schizophrenia"; he remained violent, aggressive and disturbed in behaviour; and the Jail authorities were constantly advised by various Psychiatrists to keep him alone in the ward and due to serious medical ailment and unsoundness of his mind, trial proceedings remained suspended for sufficient long time---Accused, in view of such precarious condition could hardly know the nature of alleged act---No evidence was available on record to show that at the time of occurrence, accused was able to understand and distinguish between right and wrong---Accused, in circumstances, was entitled to the concession of S.84, P.P.C.---Incident was a case of sudden occurrence---Lodger of F.I.R. was not the eye-witness-F.I.R. did not mention the name of any witness---Possibility could not be ruled out that in order to save the skin of Jail Staff, it was an afterthought to make an eye-witness---Medical evidence did not corroborate the statement of prosecution witness who was warden of jail---Pieces of Pitcher with which accused allegedly killed the deceased, though allegedly recovered, but not sent to Forensic Science Laboratory for examination and expert opinion---Accused at the time of occurrence being suffering from serious Psychiatric illness, was declared unpredictable and dangerous by the Standing Medical Boards constituted from time to time---Accused due to such precarious condition was incapable of knowing the nature of the act; or that what he was doing was either wrong or contrary to law---Such particular degree of insanity, brought the case within exception---Even on merits, no tangible or confidence inspiring evidence leading to the guilt and conviction of accused, was produced by the prosecution---Prosecution having not been able -to prove its case against accused, accused deserved acquittal by extending him benefit of doubt---Impugned conviction and sentence of accused was set aside and he was set free, in circumstances.

State v. Balahari Das PLD 1962 Dacca 467 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Two versions---When there were two versions and both were possible, one favourable to accused was to be accepted---Conviction must be based on unimpeachable evidence and certainty of guilt; and any doubt arising in the prosecution case must be resolved in favour of accused---Accused could take several defence stands, but that would not improve the prosecution case.

Fazal-e-Haq Abbasi for Appellant.

M.A. Tahirkheli for the Complainant.

Miss Mehrin Nasar for the State.

Date of hearing: 9th February, 2011.

2011 P Cr. L J 966

[Peshawar]

Before Miftah-ud-Din Khan, J

MUHAMMAD ILYAS---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No. 90 of 2009, decided on 8th February, 2011.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Names of prosecution witnesses were mentioned in a promptly lodged report, which had excluded the possibility of consultation and deliberation---No doubt prosecution witnesses were closely related to deceased, but their presence on the spot to have witnessed the occurrence was fully established and they had furnished straightforward and truthful account of the occurrence in their testimony before the Trial Court---Said witnesses had successfully faced the test of cross-examination of defence and no material contradictions, apparent defect or infirmity existed in their testimony---No evidence existed on record that prosecution witnesses had got any personal ill-will, mala fide or ulterior motive to falsely depose against accused---Mere discrepancies of a trivial nature in the testimony of eye-witnesses, could not be considered to discard or doubt the credibility of such witnesses---Testimony of said witnesses regarding injury to the deceased, was further supported by medical evidence which was an independent and impartial piece of evidence---Alleged injury on the person of accused, was not noteworthy as the same appeared to be artificial---Medical Officer had not given any definite opinion regarding the nature of said injury---Suppression of said injury on the person of accused by prosecution witnesses, was completely ruled out, in circumstance and on that score the testimony of eye-witnesses could not be discarded or disbelieved---No convincing evidence or circumstances existed that the occurrence was the outcome of free fight between the parties---Testimony of prosecution witnesses, medical evidence, motive for the offence and incriminating recoveries established beyond doubt that accused was fully responsible for the fatal blow on vial part of the body of deceased, which caused death---Trial Court, in circumstances, had rightly convicted accused in the case.

2001 PCr.LJ 954 and 2010 SCMR 1009 ref.

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

---S. 302(b)---Qatl-e-amd---Discarding evidence of an interested witness---Scope---Evidence of an interested witness could only be discarded, if the same was not found in consonance with attending circumstances of the case.

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

---S. 302(b)---Qatl-e-amd---Benefit of doubt---No doubt under the law an accused was a favourite child of law and benefit of even a single doubt had to be extended to him, but the doubt must be reasonably entertained by a person of common prudence on justified grounds---Benefit of doubt should not be stretched to the extent of self-created, imaginary and hypothetical in favour of accused at the cost of widows, orphans who had fallen victim to the acts of brutality, who too, required equal treatment with accused.

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

---S. 302(b)---Qatl-e-amd---Petition for enhancement of sentence---Facts available on the record showed that the occurrence had taken place all of a sudden without any pre-meditation or pre-arranged plan during the course of which deceased received a single fatal blow through a stone without any repetition of further blow on the part of accused---Trial Court, in circumstances, had rightly awarded the lesser punishment of life imprisonment, which was sufficient to meet the ends of justice---No reasonable and justified ground existed for enhancement of sentence awarded to accused by the Trial Court---Revision petition was dismissed, in circumstances.

Qazi Muhammad Arshad for Appellant.

Atif Ali Jadoon and Abdul Wahid Jadoon for Respondents.

Date of hearing: 8th February, 2011.

2011 P Cr. L J 988

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

MERAJ AHMAD and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Application No. 1501 of 2010, decided on 24th December, 2010.

Criminal Procedure Code (V of 1898)---

---S. 497(2)---Penal Code (XLV of 1860), Ss.302/353/120-A/120-B/ 364/436/324/148/149/404---Explosive Substances Act (VI of 1908), Ss.3/4---Anti-Terrorism Act (XXVII of 1997); S. 7---Qatl-e-amd, assault or criminal force, criminal conspiracy, kidnapping, mischief by fire or explosive substance, attempt to commit qatl-e-amd, dishonest misappropriation of property, possessing explosive substances and terrorism---Bail, grant of---Further inquiry---More than thirty person being the members of terrorist gang were named in F.I.R., but names of accused persons were not in that list---Accused were nabbed in the case on the basis of an information report appearing for the first time about two years after the occurrence; but that too did not provide any specific source. of information except the general allegations about the involvement of accused persons---Statements of the four injured officials of the Security Agency, wherein they named accused persons for said occurrence; and on their pointation some additions, were also-made in the site plan about two years after the occurrence---Information report and the statement of the injured, both which became part of the record after a period of two years, would not be sufficient to establish prima facie involvement of accused persons in the commission of offence---Such determination would require further probe by the Trial Court---Challan in the case was complete---No ground was available to refuse bail to accused persons, they were directed to be released on bail, in circumstances.

Sohail Akhtar for Petitioners.

Barrister Waqar Ali Khan, A.A.-G. for the State.

Date of hearing: 24th December, 2010.

2011 P Cr. L J 1114

[Peshawar]

Before Attaullah Khan and Sher Muhammad Khan, JJ

INAYATULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No. 32 of 2010 and Murder Reference No. 1 of 2010, decided on 13th January, 2011.

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

----Ss. 302 & 84---Criminal Procedure Code (V of 1898), Chap. XXXIV [Ss. 464 - 475]---Anti-Terrorism Act (XXVII of 1997), S.7---West Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-e-amd, terrorism and possessing unlicensed arms---Appreciation of evidence---Trial of unsound mind accused---Accused had been charged for murder of three young innocent persons and the trial had taken more than eight years without any substantial progress---Fact was established from medical reports of three successive Medical Boards, that accused was chronic patient of 'schizophrenia'---Chapter XXXIV, Cr.P.C. provided full mechanism for the trial and other related matters of the person claimed to be of unsound mind---Under S.84, P.P.C. nothing was an offence which was done by a person who at the time of committing an offence by reason of unsoundness of mind was incapable of knowing the nature of act or whatever he was doing was wrong or contrary to law---In view of the mental status of accused in the light of successive medical reports, it was incumbent upon the Trial Court before commencing the trial to summon all or any of the members of Standing Medical Board to record their/Isis statement to offer specialized knowledge with regard to mental status of accused to ascertain whether he was of unsound mind-In the present case two provisions of law, which were prima facie beneficial for securing the ends of justice, provided in the statutes had not been observed, firstly to determine the mental capacity and status of accused in accordance with Chapter XXXIV, Cr.P.C; secondly his mental statics at the time of committing the offence to know whether the offence committed by accused was covered under the exception provided in S.84, P.P. C.---Said formalities were requirement of the law in the case when successive medical reports, given by competent Special Medical Boards constituted for that purpose had established that accused was not a person of sound mind---Conviction and sentence awarded to accused by the Trial Court were set aside and case was remanded to the Trial Court with directions to summon all or some of the members of Medical Boards before commencing the trial to obtain their expert opinion regarding capability of accused to defend himself in the trial.

Muhammad Saeed Waseer v. DFC Sialkot 1998 PCr.LJ 1441 ref.

(b) Medical jurisprudence---

----"Schizophrenia" defined and explained.

(c) Words and phrases---

---- "Insanity ", defined and explained.

(d) Administration of justice---

----Whenever the law provided a particular procedure for doing certain things, the procedure should be followed and the act could be performed accordingly.

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

----S. 84---Act of a person of unsound mind---Criminal responsibility described in Medical Jurisprudence---When the manner of committing the offence by the person of unsound mind, also fell within the four corners of criminal responsibility described in Medical Jurisprudence which were; (1) Personal history of murderer, the murder could be eccentric, melancholic, degenerate, or neurasthenic; (2) absence of motive, not only did a mentally ill person committed without any motive, but also often killed his nearest and dearest relations; (3) absence of secrecy, the murderer, if happened to be the mentally ill, did not try to conceal the body of victim, nor did he attempt to evade law by destroying evidence of his crime on running away from the scene of the murder; (4) multiple murders, a sane person usually would murder only one person with whom he was at enmity or against whom he had a grievance and did not shed more blood unnecessarily; (5) want of preparedness of pre-arrangement, a mentally ill person would not make any prearranged plan to kill anybody, but sane person, as a rule, would make all the necessary preparation prior to committing the crime; and (6) want of accomplices, a mentally ill person had no accomplice in the criminal act.

Ehsan-ul-Haq Malik for Appellant.

Jehanzeb Ahmad Chughtai for the State.

Date of hearing: 21st December, 2010.

2011 P Cr. L J 1182

[Peshawar]

Before Dost Muhammad Khan, J

ALI REHMAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No. 1743 of 2009, decided on 16th November, 2009.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possessing and trafficking narcotics---Bail, grant of---Lady co-accused had stated that accused who was driver, was not involved in the matter and had no knowledge about the narcotics---Such statements though were not admissible, but when Investigating Officer recorded the same, definite purpose behind that was to some extent that he was satisfied with regard to the innocence of accused---Accused and co-accused belonged to different areas and were not related to each other---Possibility was that accused might have taken co-accused to their destination because his car was hired---Accused was not supposed to search the luggage of the passengers---Whether accused was having conscious knowledge about the narcotics or not, was still open to debate---Let the prosecution connect accused with the crime at the trial; till then refusal of bail to accused would not be justifiable---Accused was admitted to bail, in circumstances.

Arshad Hussain Yousafzai for Petitioner.

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

Date of hearing: 16th November, 2009.

2011 P Cr. L J 1190

[Peshawar]

Before Dost Muhammad Khan, J

Mst. GUL NAZ---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No. 790 of 2010, decided on 20th December, 2010.

Penal Code (XLV of 1860)---

----Ss. 303(a), 449, 97 & 100---Qatl, committed under "Ikrah-e-Tam" and house-trespassing---Appreciation of evidence---Private defence, right of---Scope---Deceased was not related to accused lady or her daughter within the prohibited degree---Intrusions/criminal trespass of the deceased into the house of accused at odd hours of night by itself was a strong pointer towards the facts divulged by accused in her confession and her daughter's version, given in defence---Despite of all said established facts the Trial Court, ignoring the centuries old principle of law and also the statutory law on the subject, decided in his wisdom to punish the accused---Deceased, a complete stranger, driven by strong design and lust to sexually assault the grown-up daughter of accused after arming himself with deadly weapon, made criminal trespass into her house at midnight; and further forced his entry into the bedroom of accused---Said obnoxious act of the alien intruder alone, was sufficient to provide right of self-defence to the poor lady and her daughter causing his death when he did not make retreat after he was asked to do so---At the same time deceased proclaimed and insisted to commit rape on the girl/daughter of accused; and that too in the presence of her mother, the only guardian of her, present there---In the present case, it was more than imperative for the Trial Judge to have realized the occasion and the emotional sentiment of accused---Being the mother, in a situation when her grown up daughter was being ravished within her view, in all probabilities, she must have been driven by an impulse of emotional sentiments of anger and revenge, irreversible in nature---Accused was required and supposed to act in the manner, as she did, to save her daughter from being wolfishly ravished---Firing at the deceased, in circumstances, was wholly justified in law---Accused stood firm to her stance, taken in the F.I.R., in her confession and at the trial; and despite availability of legal advice, she did not retrace, rather told the whole truth---However, she was given altogether undesirable treatment, punishing her for no wrongful act---Trial Court had caused patent injustice to accused and committed grave error at law by convicting and sentencing her---Conviction and sentence recorded by the Trial Court vide impugned judgment were set aside and she was acquitted of all charges against her and was released.

?????? Ziarat Khan v. Khadim Hussain 1991 MLD 1949; Ashiq v. The State 1973 PCr.LJ 387 and The State v. Muhammad Hanif and 5 others 1992 SCMR 2047 ref.

?????? Nemo for Appellant.

?????? Akbar Zaman Khattak for the State.

?????? Date of hearing: 20th December, 2010.

2011 P Cr. L J 1203

[Peshawar]

Before Ejaz Afzal Khan, C.J. and Mazhar Alam Khan Miankhel, J

ISRAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 618 of 2010, decided on 9th February, 2011.

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

----Ss. 9, 35 & 48---Possessing, import or export and trafficking of narcotics---Report submitted by Chemical Examiner not duly notified---Effect---Accused was convicted and sentenced on report of Chemical Examiner who could not be termed as a Government Analyst in terms of S.35 of Control of Narcotic Substances Act, 1997---When the person analyzing the samples could not be termed as a Government Analyst, his report being devoid of any evidentiary worth could not form basis for conviction of accused---Re-examination of the samples of narcotic by a qualified Government Analyst, in circumstances, would be just and fair not only to accused, but to the prosecution as well and remand of case would be inevitable---Impugned conviction and sentence recorded by the Trial Court, was set aside and case was sent for decision afresh after taking fresh samples and getting them examined from the Government Analyst duly appointed in terms of S.35 of Control of Narcotic Substances Act, 1997 and Rules made thereunder--- Accused was released on bail, in circumstances.

Noor Alam Khan for Appellant.

Fazal-ur-Rehman, A.A.-G. for the State.

Date of hearing: 9th February, 2011.

2011 P Cr. L J 1234

[Peshawar]

Before Attaullah Khan and Syed Sajjad Hassan Shah, JJ

ABDUL GHAFOOR---Appellant

Versus

ZAFID WALI and another---Respondents

Criminal Appeal No. 102 of 2005, decided on 30th March, 2011.

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

----Ss. 302/452/34--- Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-e-amd and house-trespass after preparation for hurt, assault or wrongful restraint---Appeal against acquittal---Complainant while appearing as prosecution witness denied all allegations against accused and denied the major portion of his report---Complainant the only eye-witness had resiled from the contents of his report and taken a different version---Complainant party had termed the F.I.R. as false, but it had made no efforts to record correct version---Case having become of two versions, the court would consider the version which was favourable to accused---Recovery of shotgun along with empties, was of no avail because same were received by laboratory after long delay---Statement of complainant who was declared as hostile witness, could not be of help to the complainant party---Best available evidence of aunt of complainant, who was stated to be present on the spot, had been abandoned by the prosecution, which had damaged the prosecution case because withholding of best evidence was fatal to the case---Recovery of shotgun was not proved because same was recovered after the delay of eighteen days and same was not recovered from the possession of accused---F.I.R. which was falsified by prosecution witnesses, could not be believed---Accused was charged for lalkara and no overt act had been proved against him---No case was made out by appellant for reversal of impugned acquittal of accused---No strong reason was available to reverse judgment/order of the trial acquitting accused from the charge levelled against them---Appeal against acquitted was dismissed.

2002 SCMR 1986 and 2011 A.C. 12 ref.

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

-----Ss. 417(2-A) & 410---Appeal against acquittal---Principles of appeal against acquittal were different from appeal against conviction---Different parameters were applied for interference in an appeal against the acquittal and appeal against the conviction---Presumption of innocence of accused was double in case of acquittal---Appellate Court would not interfere unless conclusion reached by courts below was not supported by evidence on record.

2009 SCMR 946 ref.

Khalid Saeed Baloch for Appellant.

Jehan Zeb Ahmad Chughtai for Respondents.

D.A.-G. for the State.

Date of hearing: 30th March, 2011.

2011 P Cr. L J 1297

[Peshawar]

Before Attaullah Khan, J

RAYEES KHAN and 3 others---Petitioners

Versus

THE STATE---Respondent

Miscellaneous Bail Application No. 94 of 2011, decided on 18th March, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.353/324/148/149---Assault or criminal force to deter public servant from discharge of his duty, attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---F.I.R. revealed that in the first instance, three accused were identified by the complainant---On the second day of the alleged occurrence supplementary statement of complainant was recorded wherein he named three accused on the basis of disclosure through reliable source---Nomination of accused in instalments had made the case of accused arguable for the purpose of bail---Charge of three accused in the supplementary statement of the complainant was doubtful and could not be equated with the F.I.R. which had made the case of accused as of further inquiry---In the present case, six accused including four accused persons had been charged for firing which resulted into a single injury to the complainant, but none of them had been specifically charged for shot which proved fatal---Such question was also to be resolved at the trial---Injury sustained by the complainant was on the left arm, which was a non-vital part of the body---Case being arguable for the purpose of bail, accused were admitted to bail, in circumstances.

2011 AC 12; Falak Sher v. State 1995 SCMR 1350 and Khalid Javed v. State 2003 SCMR 1419 ref.

Muhanmad Yousaf Khan for Petitioners.

Jahanzeb Ahmed Chughtai for the State.

Date of hearing: 18th March, 2011.

2011 P Cr. L J 1308

[Peshawar]

Before Shah Jehan Khan Yousafzai, J

KHIAL MUHAMMAD---Petitioner

Versus

THE STATE through Shaheed Ullah---Respondent

Criminal Miscellaneous Bail No. 636 of 2011, decided on 2nd May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324---Attempt to commit qatl-e-amd---Bail, refusal of---Occurrence took place in broad daylight and accused was the sole accused charged by injured complainant---Blood feud enmity existed between the parties---Investigating Officer had inadvertently not mentioned the calibre of empties in the recovery memo, but the same day while sending those empties to Forensic Science Laboratory said Investigating Officer had mentioned that five empties were that of 7.62 bore---Inadvertent omission was of no use for the accused---Two recovery memos. regarding two different colours of trousers of the victim, would amount to deep appreciation of prosecution case, which was not desirable at bail stage---Prima facie, accused was reasonably connected with the commission of offence falling within the restrictive part of S.497(1), Cr.P.C. and was not entitled to the concession of bail---Bail petition was dismissed, in circumstances.

1994 PLR 655; 1994 PCr.LJ 2285; 1999 PCr.LJ 230 and 1999 PCr.LJ 140 ref.

Malik Muhammad Ajmad Khan for Petitioner.

S. Naz Muhammad for the State.

Muhammad Qasim Khattak for the Complainant.

Date of hearing: 2nd May, 2011.

2011 P Cr. L J 1340

[Peshawar]

Before Dost Muhammad Khan and Yahya Afridi, JJ

MUHAMMAD ISMAIL---Petitioner

Versus

SUPERINTENDENT, CENTRAL PRISON, PESHAWAR and 3 others---Respondents

Writ Petition No. 1019 of 2010, decided on 10th May, 2011.

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

----S.9(c)---Constitution of Pakistan, Art.199---Constitutional petition---Possessing narcotics---Petitioner was tried by two different courts and ultimately was convicted and sentenced on different dates---No opportunity was available for one or the other court to think over as to how the sentence already awarded would run concurrently with the subsequent one---High Court, in circumstances, directed that the sentences awarded to the petitioner would run concurrently.

Altaf Hussain v. The State 1987 PCr.LJ 2169 ref.

M. Qasim Khan Khattak for Petitioner.

Lal Jan Khattak, A.A.-G. along with Muhammad Ayub Khan, Assistant Superintendent, Central Prison Peshawar for Respondents.

Date of hearing: 10th May, 2011.

2011 P Cr. L J 1352

[Peshawar]

Before Attaullah Khan, J

MUZZAMIL HUSSAIN---Applicant

Versus

ALLAH NAWAZ and another---Respondents

Criminal Miscellaneous Bail Cancellation Application No. 148 of 2011, decided on 22nd April, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302/109/34---Qatl-e­-amd---Cancellation of bail, application for---Co-accused was charged for effective firing and killing the deceased and respondent/accused had not been attributed any overt act in the occurrence; and he was simply shown running together with his brother/co-accused---Case of accused, in circumstances was than of further inquiry entitling him to the grant of bail which was rightly granted to him through the impugned order and needed no interference---Principles of grant of bail and cancellation thereof, were quite different---Once bail was granted by a competent court of law, then strong and exceptional grounds were needed for cancellation thereof---Counsel for the complainant had failed to pinpoint any such infirmity in the impugned order of granting bail to accused, which was accordingly upheld---Even otherwise counsel for the complainant/petitioner, could not show anything on record that accused had either misused the concession of bail or tampered with the investigation process---In absence of any substance in the bail cancellation application, same was dismissed, in circumstances.

Muhammad Saeed Bhutta for Applicant.

Date of hearing: 22nd April, 2011.

2011 P Cr. L J 1455

[Peshawar]

Before Attaullah Khan and Syed Sajjad Hassan Shah, JJ

SAADULLAH---Appellant

Versus

Mst. SARDAR BIBI and 2 others---Respondents

Criminal Appeal No. 97 of 2008, decided on 27th January, 2011.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Report in the case was lodged with all reasonable promptitude by injured complainant who later on died---Time elapsed between injury and death of deceased, would not affect the validity of the F.I.R. as dying declaration---F.I.R. was a very. straight narration of events given by the complainant---F.I.R., in circumstances, was to be treated as dying declaration, as statement of said complainant had been corroborated by independent source---Sole eye-witness, was cross-examined at length during which he stood firm to the stance as to the occurrence---Statement of eye-witness was unimpeachable and accused had failed to prove any grudge on his part or any ill-will to falsely implicate him; his statement was confidence-inspiring and could be safely accepted as solid piece of evidence, which got full support from the medical as well as other circumstantial evidence---Narration given by said eye-witness was straightforward and no contradiction or material discrepancy was found in his statement---Though said witness was solitary one, but he could be believed, because there was no rule of law for producing number of witnesses---Rule of prudence was the quality and not the quantity---Said witness though related to the deceased, but had given a true statement involving accused in the occurrence; he had no ill-will or motive to falsely implicate accused and had given a consistent statement of the occurrence against accused---Identification of accused was easy as F.I.R. reflected that accused persons were already known to the complainant and there was no chance of misidentification---Accused remained absconder for about six years without any plausible reasons---Case against accused having been proved, impugned conclusion of Trial Court needed no interference, same was maintained, in circumstances.

2001 PCr.LJ 1014; 2001 YLR 1470; Naimat Ali v. The State 1981 SCMR 61; 1971 SCMR 516; 1996 SCMR 3; 2008 SCMR 917; Muhammad Siddiqui alias Ashraf alias Achi and 3 others v. The State 1971 SCMR 659; Allah Bakhsh v. Shamnti PLD 1980 SC 225; 2009 YLR 234; Riaz Hussain v. The State 2001 SCMR 177 and Allah Ranju v. The State 1977 SCMR 377 ref.

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

----Art. 46---Dying declaration---Scope---Dying declaration normally was to be considered to be a strong piece of evidence; and at the same time it also required corroboration.

(c) Criminal trial---

----Abscondence---Generally, abscondence could not be based for conviction, but it would corroborate the other evidence and as such was a corroborative piece of evidence.

2005 SCMR 1568; Chakar and another v. The State 1971 PCr.LJ 1121; Beeko alias Imam Bux and 2 others v. The State 1973 PCr.LJ 896 and 2008 SCMR 1106 ref.

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

----S. 302(b)---Petition for enhancement of sentence---Accused having been convicted and sentenced to imprisonment for life; complainant had filed revision for enhancement of sentence---Trial Court was a proper forum to decide matter of sentence---Reasons given by the Trial Court in its impugned judgment for lesser punishment, were sufficient---Revision was dismissed, in circumstances.

Farooq Akhtar for Appellant.

Jehanzeb Ahmad Chughtai for the State.

Sanaullah Khan Gandapur for the Complainant.

Date of hearing: 27th January, 2011.

2011 P Cr. L J 1517

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

FAZAL MABOOD---Petitioner

Versus

THE STATE through S.H.O., Police Station Ghalegay---Respondent

Criminal Miscellaneous Nos. 72 and 81 of 2011, decided on 10th June, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 353/324/120/124-A, 148/149/365/427---Explosive Substances Act (VI of 1908), Ss.3/4---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(2)(3)(4)----Anti-Terrorism Act (XXVII of 1997), S.7---Assault or criminal force to deter public servant from discharging of his duty, attempt to commit qatl-e-amd, concealing design to commit offence, sedition, kidnapping, mischief, causing explosion and attempt to cause explosion and Haraabah, act of terrorism---Bail, grant of---Further inquiry---None of accused persons was nominated as accused in the F.I.R.---None of the items, which were allegedly stolen/snatched from the personnel of the law enforcing agencies, as mentioned in the F.I.R., had been recovered from them---Certain recovery memos though were available on file to show that some articles of the destroyed check post, such as bricks and iron etc., were recovered from the houses of certain persons, but same too, at that stage, did not connect accused persons with the crime, as none of those persons had named accused persons for the sale of alleged items to them---Only piece of evidence against accused that about 19 maund of iron purportedly to be the stolen iron of the destroyed building was recovered from his house, would also not sufficiently connect him with the commission of offence, being a matter of further probe as that in fact the iron in question was that of the Police Choki---Though one person in his statement under S.164, Cr.P.C. had named the accused person for the offence, but perusal of the record would reveal that some other cases of similar nature were also registered against accused persons through different F.I.R's.---Case of accused persons, in circumstances, became arguable for the purpose of bail---Accused persons, no doubt were charged for heinous offence, but it would not disqualify them from the relief of bail, if otherwise their case was found fit' for grant of bail---Accused were admitted to bail, in circumstances.

Abid Ali alias Ali v. The State 2011 SCMR 161 and Amir v. The State PLD 1972 SC 277 ref.

Muhammad Arshad Yousafzai for Petitioner.

Ikramullah Khan, A.A.-G. for the State.

Date of hearing: 10th June, 2011.

2011 P Cr. L J 1623

[Peshawar]

Before Attaullah Khan, J

RAJ MUHAMMAD KHAN---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous Bail Application No. 135 of 2011, decided on 8th July, 2011.

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

----Ss. 302, 321 & 322---"Qatl-e-amd" and "qatl-bis-sabab"---Distinction---Determining factors---`Qatl-a-amd' was a premeditated murder, while 'qatl-bis-sabab' was murder without intention---If accused had no intention to cause death, that would attract the provisions of S.321, P.P.C. for the offence of qatl-bis-sabab, but if there was an intention and preparation, then it would certainly amount to qatl-e-amd---F.I.R. in the present case, clearly indicated that accused party was duly armed with fire-arms and they were also waiting for the complainant party on the spot---Accused party had also previous blood feud enmity with one who was accompanying the deceased at the relevant time and who was also an eye-witness in the case---Accused were fully prepared and the murder of the deceased was premeditated---Accused were armed with deadly weapons with which they effected fire at the complainant party---Murder was qatl-e-amd and would not be covered under S.321, P.P.C. in circumstances.

2009 SCMR 1210 distinguished.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324/34---Qatl-e-amd, attempt to qatl-e-amd---Bail, refusal of-Plea of alibi taken by accused, could be thrashed out at the stage of trial---Case was not in which ocular evidence was lacking---Companion of the deceased, who was present on the spot at the time of occurrence, saw the accused while injuring him---Said companion in his statement under S.164, Cr.P.C. had fully involved the accused---Some others had also charged accused for the offence---F.I.R. in the case was dying declaration---Victim of murder would not falsely implicate an innocent person because he was expecting an immediate death---Deceased when injured also thumb impressed the report and after some time he succumbed to the injuries---Said dying declaration could not be disbelieved, unless something was brought in rebuttal at the trial stage---Said dying declaration was further corroborated by the ocular evidence---Medical evidence also supported the guilt of accused---Three accused were charged and three wounds were found on the body of the deceased, which were corroborative to each other---Accused was directly charged by deceased-then-injured in the dying declaration for wilfully causing injuries to him which resulted into his death---Ample evidence was on record which reasonably connected him with the commission of offence disentitling him to the concession of bail---Bail application of accused, was dismissed, in circumstances.

2009 SCMR 1210 rel.

Shams Buniri for Petitioner.

Naeemuddin for the State.

Date of hearing: 8th July, 2011.

2011 P Cr. L J 1635

[Peshawar]

Before Attaullah Khan, J

MUHAMMAD ALTAF KHAN and 2 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No. 182 of 2011, decided on 3rd June, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324/148/149---Attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---Medical reports of the complainant and other injured person had revealed that injuries were on the legs of the injured which were non-vital parts of the bodies---Case of accused fell within the ambit of further inquiry, entitling them for grant of bail---Accused were admitted to bail, in circumstances.

2011 MLD 763 rel.

Sanaullah Khan and Ahmad Ali Khan for Petitioners.

Miss Farhana Jehan for the State.

Muhammad Anwar Awan for the Complainant.

Date of hearing: 3rd June, 2011.

2011 P Cr. L J 1663

[Peshawar]

Before Yahya Afridi, J

MEHMOOD SHAH---Petitioner

Versus

NOOR ZADA and another---Respondents

Criminal Bail Petition No. 1451 of 2010, decided on 1st December, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Qatl­-e-amd and attempt to commit qatl-e-amd---Bail, refusal of---High Court at bail stage had to render a tentative assessment of the facts without indulging in detail scrutiny so as not to prejudice the case of the parties during the trial---Number of entry wounds on the two deceased, accused being charged directly and with a specific role in a daylight occurrence, prima facie, reasonably connected accused with the offence stated in the F.I.R.---Case set up by the prosecution would have to be proved and tested during the trial of accused---Bail could not be granted to accused, in circumstances.

Mukhtar Ahmad Khan for Petitioner.

Ms. Abida Safdar for the State.

Wilayat Khan for the Complainant.

Date of hearing: 1st December, 2010.

2011 P Cr. L J 1720

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

IFTIKHAR KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Bail Application No. 968 of 2011, decided on 27th June, 2011.

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---Accused along with his co-accused was directly charged in the F.I.R. for committing the murder of brother of the complainant; and causing firearm injuries to the complainant---F.I.R. of the cross case revealed that the complainant in injured condition was arrested on the spot and was sent to the hospital for treatment, where his report was recorded---Delay at that stage was not noticeable in circumstances---Every cross-case could not entitle an accused to the concession of bail, because the exercise of such a power was not a rule, but discretion of the court and other attending circumstances were also to be taken into consideration---Attending circumstances of' the case, in presence of ocular evidence and other material available on file, would go against the accused---Even if the case was considered to be a cross-case the question of further inquiry could not be considered, because it could not form a valid ground for the release of accused on bail, who had been directly charged in the F.I.R.---Medical report too supported the prosecution story---Offence for which accused had been charged also fell within the prohibitory clause of S.497, Cr.P.C.---Consideration of other grounds raised by counsel for accused at that stage would amount to deeper appreciation of the evidence, which was not permissible---On the tentative assessment of the material available on file, prima facie, case was made out against accused, disentitling him to the concession of bail---Bail petition was dismissed, in circumstances.

Mussadiq Khan v. The State 2005 SCMR 1718; Farmaullah v. The State and 2 others 2010 YLR 670; Muhammad Yaqoob v. The State and another 2010 YLR 688 and Wahabuddin v. The State 2010 PCr.LJ 792 rel.

Ziaul Haq for Petitioner.

Zahid Yousaf Qureshi, A.A.-G. for the State.

Complainant in person.

Date of hearing: 27th June, 2011.

2011 P Cr. L J 1732

[Peshawar]

Before Syed Sajjad Hassan Shah, J

DILARAM KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No. 19 of 2011, decided on 20th June, 2011.

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

----S. 13---Criminal Procedure Code (V of 1898), S.103---Possessing unlicensed arms---Appreciation of evidence---Entire evidence on record had revealed that incriminating articles were allegedly recovered from the house which was not exclusively possessed by accused, but was jointly possessed by other inmates i.e. his parents, brothers, sisters, uncles and their children---Investigating Officer had raided the house without any search warrant---Record failed to prove that the room from where the recovery was made was occupied by accused---No private person was associated in the case---Evidence collected by the prosecution, was not sufficient to connect accused with the offence, because same was lacking on the record that it was the accused from whose possession the recovery was effected---Ocular evidence was full of contradictions, improvements and omissions---Such sort of scanty and sketchy evidence was never considered as the valid piece of evidence to warrant the conviction of an accused---Prosecution had failed to associate the independent witness belonging to same locality at the time when house was raided---Police, in circumstances, had violated the mandatory provisions of S.103, Cr.P.C. by not making any efforts for procuring the presence of the private witness on the spot at the time of recovery---Courts below, in circumstances were not justified in awarding conviction and sentence to accused---Impugned judgment of the courts below were set aside and accused was acquitted of the charges levelled against him and he was released, in circumstances.

Abdul Ghani v. State 2000 MLD 1075 and Mohsin Atta v. The State PLD 1998 Lah. 401 rel.

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

----S. 103---Search of place---Provisions of S.103, Cr.P.C. would apply with full force when search was to be made of place which was in an inhabited locality---Section 103, Cr.P.C. was relatable to the place and not to the persons---If place was known where search was to be made and that place was situated in a locality which was inhabited by the people, then it was necessary to join two or more respectable persons from that locality to witness the search.

Muhammad Azam v. The State PLD 1996 SC 67 rel.

Mian Sadullah Janduli for Appellant.

Muhammad Javid, Deputy Advocate-General for the State.

Date of hearing: 20th June, 2011.

2011 P Cr. L J 1769

[Peshawar]

Before Shah Jehan Khan and Mazhar Alam Khan Miankhel, JJ

RAHIM GUL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 602 of 2009, decided on 30th May, 2011.

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

----S. 9(c)---Trafficking of narcotics---Appreciation of evidence---Version of the prosecution seemed to be very plausible and appealable to the common sense, whereas the version of accused being based on denial simpliciter, did not appeal to logic and reason---Huge quantity of 76 kilograms of charas, could not be thrusted upon accused without any serious enmity of the prosecution witnesses---No reason existed to believe that accused were falsely involved in the case by letting the actual culprits free---Prosecution had fully proved that accused at the relevant time was driving the truck in question with whom co-accused was also present and charas weighing 76 kilograms was recovered from the secret cavities of the truck in question---Prosecution was not legally required to prove the link of accused with the truck in the capacity as owner or driver because case had to be decided on the basis of facts, which had come on record---Presence of accused persons in the truck at the relevant time, their arrest on the spot and recovery of charas from the secret cavities of the truck stood established beyond any reasonable doubt and the Trial Court had rightly discarded the version of defence---Charas weighing 76 kilograms having been recovered from the secret cavities of the truck, driver and his companion on a long journey, would be supposed to have knowledge of the goods on board---Murasila, F.I.R., recovery memos and deposition of prosecution witnesses would show that the samples were taken from all the packets with a small quantity from each slab for chemical analysis and same were found as charas by the Laboratory---Presence of such a direct evidence in absence of any mala fide or enmity, was sufficient enough to believe the involvement of accused in the commission of offence---No material discrepancy having been noticed in the testimony of the prosecution witnesses, the well reasoned findings of the Trial Court holding accused persons guilty of the charge, were not open to any exception---Accused appeared to be just transporters/carriers of the contraband working for others---Officials had not tried to nab the actual criminals who were playing with health and lives of the people of the country---Imprisonment for life, as awarded to accused by the Trial Court appeared to be a bit harsh---Taking a lenient view their sentences were reduced to imprisonment for ten years, in circumstances.

Zahoor Ahmad Awan and another v. The State 1997 SCMr 543; Qaisarullah and others v. The State 2009 SCMR 579; Muhammad Noor and others v. The State 2010 SCMR 927; Gulshan Ara v. The State 2010 SCMR 1162; Haji Inayat and another v. The State 2010 PCr.LJ 825 and Zahoor Ahmad Awan and another v. The State 1997 SCMR 543 distinguished.

Kashir Amir v. The State PLD 2010 SC 1052 rel.

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

----S. 9(c)---Trafficking of narcotics---Appreciation of evidence---Simpliciter denial of accused---When a distinct and specific plea was taken by the defence, then the same must be substantiated by leading evidence---Where the prosecution had proved its version by leading overwhelming incriminating evidence, the denial simpliciter by defence, could hardly be sustained.

Qazi Jawad Ehsanullah for Appellant.

Shakeel Ahmad, Spl. P.P. for the State.

Date of hearing: 10th May, 2011.

2011 P Cr. L J 1832

[Peshawar]

Before Attaullah Khan, J

Hafiz MUHAMMAD BILAL---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No. 42 of 2011, decided on 21st February, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail, refusal of---Accused claimed that he being of tender age at the time of occurrence, he was entitled to concession of bail---Identity card of accused obtained from NADRA had revealed that at the time of occurrence his age was 19 years, 6 months and 14 days---Plea of tender age of accused in circumstances had become disputed---Courts though had taken view in favour of juvenile accused in matter of bail, but that was qualified and conditional---Courts were required to see as to whether other material available on record connected accused with the commission of offence---Confessional statement of accused had fully involved him in the commission of offence---Empties recovered from the spot were fired from the pistol used by accused in the commission of offence---Report of Forensic Science Laboratory was also against the accused---Complainant in his statement under S.164, Cr.P.C. had nominated accused for the commission of offence---Two witnesses had deposed that they saw the deceased lastly in the company of accused---Such fact was also relevant to be taken against accused---Trial had commenced and formal charge was framed against accused---Bail application of accused was dismissed, in circumstances.

1996 PCr.LJ 1455 ref.

Saifur Rehman Khan for Petitioner.

Sanaullah Shamim, D.A.-G. for the State.

Muhammad Nadeem Chohan for the Complainant.

Date of hearing: 21st February, 2011.

2011 P Cr. L J 1924

[Peshawar]

Before Attaullah Khan and Syed Sajjad Hassan Shah, JJ

FATEH KHAN---Appellant

Versus

THE STATE and 3 others---Respondents

Criminal Appeal No. 46 of 2006, decided on 24th May, 2011.

Penal Code (XLV of 1860)---

----Ss. 302/109/34--- Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-e-amd---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Delay of about five hours in reporting the matter and in order to explain such delay, the complainant in the F.I.R. as well as in his statement took contradictory pleas---Explanation given by the complainant with regard to delay, could not be taken as reasonable and it could be gathered that the time was consumed by the complainant party in consultation and deliberation---Complainant was the father of the deceased, whereas prosecution witness was the nephew of complainant---Testimony of said persons, in circumstances, was to be scrutinized with due care and caution---Presence of alleged eye-witness and the complainant on the spot seemed to be doubtful---Recovery of Kalashnikov was not made from the possession of accused, but same was taken into possession when it was lying in the Malkhana---Reports of Forensic Science Laboratory were not believable because those did not pertain the case, but related to other F.I.R.---Said reports were not supporting at all the case of prosecution---Confessional statement of accused was not recorded within 24 hours---Magistrate who recorded said confessional statement, in his cross-examination admitted that after recording confessional statement, accused was handed over to the same Investigating Officer who produced him for recording confessional statement---Said confessional statement, had not been corroborated by any other piece of evidence---Such confessional statement which suffered from legal infirmities, was ruled out from consideration---Alleged motive had not been established through any cogent and convincing evidence---Even otherwise, motive was a double edged weapon and cut both sides---False implication of accused on account of alleged motive, could not be ruled out---Prosecution having not been able to prove its charge against accused beyond shadow of reasonable doubt, they were rightly acquitted by the Trial Court.

Wazir and others v. The State PLD 1960 W.P. Kar. 674 rel.

Allah Nawaz Khan for Appellant.

Sanaullah Khan Shamim Gandapur D.A.-G. for the State.

Ghulam Muhammad Sappal for Respondents.

Date of hearing: 24th May, 2011.

2011 P Cr. L J 1942

[Peshawar]

Before Attaullah Khan, J

RAFIULLAH---Applicant

Versus

THE STATE and 2 others---Respondents

Criminal Bail Application No. 83 of 2011, decided on 7th March, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/34---Qatl-e-amd and attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---Absconsion of accused was a matter to be seen at the trial stage, because no other circumstances were available against the accused---Two main co-accused had been acquitted on the same evidence which was to be produced by the prosecution in the trial of the accused---Case of the accused required further inquiry into his guilt, he was allowed to be released on bail, in circumstances.

Pir Hameedullah Shah for Applicant.

Sanaullah Shamim, D.A.-G. for the State.

Abdur Rashid Khan Marwat for the Complainant.

Date of hearing: 7th March, 2011.

2011 P Cr. L J 1976

[Peshawar]

Before Attaullah Khan and Khalid Mehmood Khan, JJ

MUHAMMAD SHAFIQUE and 2 others---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No. 56 of 2010, decided on 23rd August, 2011.

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

----Ss. 302(b) / 324 / 337-F(ii) / 337-F(iii) / 34--- West Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-e-amd, attempt to commit qatl-e-amd and possessing unlicensed arms---Appreciation of evidence---Place of occurrence had been proved by the prosecution through eye-witnesses, specially prosecution witness who was injured during occurrence; his statement which was corroborated by other prosecution witness, could not be discarded on the flimsy objection---Accused and complainant party both were closely related to each other and question of false charging by injured prosecution witness had not been proved beyond any shadow of doubt, because nothing had been brought on record that said witness was not present on the spot; or he had charged the accused due to his personal grudges---No material contradiction in the statement had been brought on the record by the defence, though he was cross-examined at length---Accused was arrested by disinterested witness; and recovery of pistol by him, which had been sent to the Forensic Science Laboratory along with empties, result of which was positive and corroborated the prosecution version---Post mortem report could not be discarded---Delay if occurred, was self-explained and was not fatal because it was not proved to have been made purposely for deliberation and consultation---Two prosecution witnesses were rightly abandoned; quality and not the quantity of the witnesses was to be considered---Prosecution had the prerogative to choose the number of witnesses, which in its opinion were sufficient for proving the case---If the evidence produced by the prosecution was worthy of reliance and confidence-inspiring, the number of witnesses, would become irrelevant---Medico-legal report and postmortem report fully supported the prosecution version---Motive though had not been established beyond reasonable doubt, same would not ipso facto, affect adversely on the prosecution, nor was the essential ingredient, constituting the offence proved through evidence of ocular witnesses---Evidence produced by the prosecution was direct, consistent, straightforward, worthy of reliance and confidence-inspiring, corroborated by medical evidence, recovery of pistol and empties from the spot---Conviction awarded to accused by the Trial Court on the basis of ocular evidence fully corroborated by independent source, needed no interference---Conviction of accused was maintained, in circumstances.

2011 SCMR 856 rel.

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

----Ss. 302(b)/324/34---West Pakistan Arms Ordinance (XX of 1965), S.13---Criminal Procedure Code (V of 1898), Ss. 435 & 439---Qatl-e-amd and attempt to commit qatl-e-amd---Petition for enhancement of sentence---No good ground had been agitated for enhancement---Trial Court was competent forum to decide the quantum of sentence and the sentence awarded was sufficient--- Petition was dismissed, in circumstances.

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

----Ss. 302(b)/324/34---West Pakistan Arms Ordinance (XX of 1965), S.13---Criminal Procedure Code (V of 1898), S. 417(2-A)---Qatl-e-amd, attempt to commit qatl-e-amd and possessing unlicensed arms---Appeal against acquittal---Appellant/complainant, had failed to prove that impugned judgment was perverse and there was any gross injustice---By acquittal, an accused would earn double presumption of innocence, which could not be set aside lightly---Appeal against acquittal being devoid of any force, was dismissed, in circumstances.

Anwar-ul-Haq and Khuwaja Muhammad Khan Garra for Appellants.

Sanaullah Khan Shamim, D.A.-G. for the State.

Muhammad Yaqoob Khan Marwat for the Complainant.

Date of hearing: 23rd August, 2011.

2011 P Cr. LJ 31

[Quetta]

Before Mrs. Syeda Tahira Safdar and Ghulam Mustafa Mengal, JJ

SHABIR AHMED---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 36 of 2005, decided on 9th August, 2010.

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

---Ss. 9(c), 21, 22 & 23---Possession of narcotics---Appreciation of evidence---Both the accused were driving the vehicle from which the narcotic was recovered---Accused contended that an officer below the rank of Sub-Inspector could not effect recovery under Ss.21, 22 and 23 of the Control of Narcotic Substances Act, 1997---Validity---Naib Risaldar committed no fault or irregularity vitiating the proceedings as he acted in the absence of the Risaldar with the permission of the Judicial Magistrate---Any irregularity in the course of investigation would not vitiate later proceeding unless such irregularity had the effect of prejudicing the case of any of the parties especially when accused failed to establish the mala fide of the Investigating Officer---Witnesses of recovery corroborated the evidence without any contradiction in their statements---Material recovered though was not sealed and samples were not taken on the spot yet the recovery of the material was established---Accused's presence in the vehicle carrying the narcotic substance and his apprehension from the spot was not denied by him---Burden lay on the accused to establish that he was boarding the vehicle as a hitchhiker and had nothing to do with the material recovered from the vehicle---Both the present accused and the co-accused driving the vehicle belonged to the same locality---Material on record connected the accused with the commission of the offence---Trial Court appreciated the evidence correctly---No interference was warranted by the High Court---Appeal was dismissed in circumstances.

Amanullah Kanrani and Miss Saima Jamal for Appellant.

Zahoor Ahmed Shahwani, Special Prosecutor A.T.A. for the State.

Date of hearing: 17th May, 2010.

2011 P Cr. LJ 48

[Quetta]

Before Mrs. Syeda Tahira Safdar and Ghulam Mustafa Mengal, JJ

SIRAJ AHMED---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No. 67 of 2007, decided on 21st July, 2010.

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

----Ss. 302, 324 & 337-D---Criminal Procedure Code (V of 1898), S.164---Qatl-e-amd, attempt to commit qatl-e-amd, Jaifah---Appreciation of evidence---Benefit of doubt---Confessional statement under S.164, Cr.P.C.---Evidentiary value---Accused contended that he was forced to make confessional statement before Magistrate by the Police---Validity---Confessional statement was a strong piece of evidence but complete reliance could not be placed on the same unless such statement was proved to have been made voluntarily--Injured witness, who was the only eye-witness of the case, stated that he was riding pillion on the motorcycle driven by the deceased when the accused attacked them with dagger but none of the official or private witnesses disclosed anything about that motorcycle; the said motorcycle was not taken into custody by the Investigating Officer---Occurrence having taken place at night, injured eye-witness mentioned of the motorcycle to prove his ability to recognize the accused in the head-light of the motorcycle but presence of the said motorcycle remained doubtful---Statement of the witness in circumstances, lost its weight---Assertion of the complainant who was father of the deceased that he never met the injured eye-witness since the occurrence till date could not be believed---Alleged confession was not corroborated by the evidence and material brought on record---Trial Court failed to appreciate evidence and contradictions in the statements of the witnesses which were also at variance with medical evidence--Even statement of the only eye-witness was not considered properly---Reasonable doubt in prosecution case entitled the accused to the benefit of doubt---Prosecution having failed to prove its case, appeal was accepted and accused was acquitted of charges.

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

----S. 164---Confessional statement before Magistrate---Evidentiary value---Confessional statement was a strong piece of evidence but the same could not be relied unless such statement was proved to have been made voluntarily.

2004 PCr.LJ 1518; PLD 2002 SC 558; PLD 1996 SC 1; PLD 2005 SC 530; 2005 YLR 3346; 2005 SCMR 277; 2001 SCMR 1405 and 2005 SCMR 1906 ref.

Waseem Dumar for Appellant.

Mrs. Sima Jamal for the State.

Date of hearing: 3rd May, 2010.

2011 P Cr. L J 67

[Quetta]

Before Qazi Faez Isa, C.J. and Muhammad Noor Meskanzai, J

NOORULLAH KHAN---Appellant

Versus

SHER MUHAMMAD and 5 others-Respondents

Criminal Acquittal Appeal No. 310 of 2009, decided on 24th May, 2010.

Penal Code (XLV of 1860)---

----Ss. 392, 128 & 148---Criminal Procedure Code (V of 1898), S.417---Robbery, Public Servant voluntarily allowing prisoner of State or war to escape, rioting armed with deadly weapon---Appeal against acquittal---Appreciation of evidence---Principles---F.I.R. was lodged after inordinate delay and deliberations---Inordinate and unexplained delay in lodging the F.I.R. cast a cloud of doubt on prosecution case---No recovery was effected---Principles of appreciation of evidence in appeal against acquittal were different from those in appeal against conviction---In appeal against acquittal, appellant was bound to prove either violation of established principles of law, flawed reasoning or partisanship in the findings of acquittal---Findings of acquittal could not be set aside merely on the ground that a different conclusion was possible upon reappraisal of evidence---Double presumption of innocence was attached to the findings of acquittal---Trial Court had correctly appreciated the evidence--No interference was warranted---Appeal against acquitted was dismissed in circumstances.

Ayub Masih v. The State PLO 2002 SC 1048 and Haji Amanullah v. Munir Ahmed 2010 SCMR 222 fol.

Appellant in person.

Respondents in person.

Date of hearing: 10th May, 2010.

2011 P Cr. L J 76

[Quetta]

Before Qazi Faez Isa, C.J. and Muhammad Noor Meskanzai, J

ABDUL HADI---Petitioner

Versus

SPECIAL JUDGE ATC, KHUZDAR and another---Respondents

Constitutional Petition No. 121 of 2010, decided on 21st June, 2010.

Penal Code (XLV of 1860)---

----S. 302--- Constitution of Pakistan, Art. 199--- Constitutional petition---Qatl-e-amd---Accused challenged the Trial Court's order to conduct his trial in jail on the application of a prosecution witness who alleged that he was facing threat to his life---Validity---In view of prevailing conditions in the area, the witness's apprehension was genuine and justifiable---Witnesses were, therefore, directed to be examined in jail---Constitutional petition was dismissed for having no force.

Nasir Zafar v. The State and another 2001 PCr.LJ 937 and Chairman National Accountability Bureau, Islamabad and others v. Mian Muhammad Abbas Sharif and others PLD 2001 Lah. 157 distinguished.

Wasay Tareen and Abdul Khair Achakzai for Petitioner.

Sardar Ahmed Halimi for the State.

2011 P Cr. LJ 162

[Quetta]

Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ

SHAM S-ULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No. 14 of 2009, decided on 23rd August, 2010.

(a) Explosive Substances Act (IV of 1908)---

----Ss. 3 & 4---Explosives Act (IV of 1884), S.4(1)---Penal Code (XLV of 1860), Ss.324/34---Qanun-e-Shahadat (10 of 1984), Art.40---Causing explosion likely to endanger life or property, attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property, attempt to commit qatl-e-amd, acts done by several persons in furtherance of common intention---Appreciation of evidence---Benefit of doubt---Burnt wire taken into possession by the prosecution from place of occurrence was not an explosive within the , meaning of S.4(1) of Explosives Act, 1884---Allegations as to use of said wire as explosive could not be ascertained as the said wire was not sent to ballistic expert, especially in the absence of anything recovered from place of occurrence---Statements of witnesses showed that they only saw the accused running from the place of occurrence but did not see them making/causing the explosion---Neither any recovery memo of the pistol was prepared nor empties and the pistol were sent to the ballistic expert to prove the use of pistol in the commission of crime---House of the complainant was located in a populous area yet no independent witness was associated from the locality---Testimony of witnesses was not corroborated by confidence inspiring evidence---Statements of witnesses had to be examined with utmost care and caution in case of offences of capital punishment---Belated and uncorroborated disclosure of the accused could not be made the basis of his conviction as the same was not admissible under Art.40 of the Qanun-e-Shahadat, 1984---Identification of the accused in odd hours of the night was doubtful---False implication could not be ruled out in view of the fact that there was civil dispute between the complainant and the accused---Prosecution could not prove its case beyond shadow of doubt---Impugned judgment was set aside and accused was acquitted of the charge.?

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

----Art. 40---Disclosure of accused---Admissibility---Belated and uncorroborated disclosure of the accused was not admissible under Art.40 of the Qanun-e-Shahadat, 1984.?

Mrs. Noor Jehan Kahoor for Appellant.

Amanullah Langove for the State.

Date of hearing: 28th April, 2010.

2011 P Cr. L J 261

[Quetta]

Before Syeda Tahira Safdar and Ghulam Mustafa Mengal, JJ

MEHRAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 116 of 2008, decided on 9th September, 2010.

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

----S. 13(e)---Unlicensed possession of arms etc.---Appreciation of evidence---Benefit of doubt---Witnesses contradicted each other qua number of cartridges recovered---Recovery memo showed that the Figure was converted into `20' by means of over-writing which was not endorsed by initials---Trial Court lost sight of contradictions of the case---Disclosure of accused to Police on the last day of his physical remand raised doubts as to the validity of the disclosure and recovery---No one was associated as witness from the house from which recovery was made---Said house was not in exclusive possession of the accused---Case of prosecution was highly doubtful---Trial Court failed to extend benefit of doubt to the accused---High Court while giving benefit of doubt to the accused, acquitted him of the charge.

Muhammad Aslam Chishti for Appellant.

Haji Liaquat Ali for the State.

Date of hearing: 20th May, 2010.

2011 PCr. LJ 298

[Quetta]

Before Mrs. Syeda Tahira Safdar and Ghulam Mustafa Mengal, JJ

MUHAMMAD QASIM---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No. 45 of 2008, decided on 19th October, 2010.

Explosive Substances Act (VI of 1908)---

----Ss. 4 & 5---West Pakistan Arms Ordinance (XX of 1965), S.13-A---Attempt to cause explosion, or making or keeping explosive with intent to endanger life or property, making or possessing explosive under suspicious circumstances, unlicensed possession of arms etc.---Appreciation of evidence---Benefit of doubt---House from which arms and ammunition were recovered was not in exclusive possession of the accused as other person was also arrested from the house--Acquittal of said other person raised doubts as to whether the incriminating material belonged to said other person or the accused---Klashnikov and detonator were not sent to the Arntourer for examination---Search was made by Police in violation of mandatory provisions of 5.103, Cr. P.C.---Prosecution failed to prove its case against the accused---Appeal was accepted and accused was acquitted.

Muhammad Aslam Chishti for Appellant.

Haji Liaquat Ali for the State.

Date of hearing: 27th July, 2010.

2011 P Cr. L J 328

[Quetta]

Before Syeda Tahira Safdar and Ghulam Mustafa Mengal, JJ

SHADI KHAN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. (S) 118 and Murder Reference No. (S) 19 of 2008, decided on 9th September, 2010.

Penal Code (XLV of 1860)---

----Ss. 302 & 34---Qatl-e-amd, acts done by several persons in furtherance of common intention---Appreciation of evidence---Benefit of doubt---Eye-witnesses made contradictory statements as to the time of their arrival at the place of occurrence and the time of occurrence; the place where they hid themselves to save their lives when accused opened fire; arrival of Police at the place of occurrence and presence of people of locality at the place of occurrence after the occurrence---Site plan did not show any veranda where witnesses were allegedly sitting at the time of occurrence---Witnesses of recovery also contradicted each other regarding number of cartridges recovered---Report of Firearm Expert revealed that fires were shot by two different weapons as against the prosecution version which alleged the use of Klashnikov only---No evidence on record supported the alleged motive---Witnesses could not be believed to have recognized the co-accused standing behind a four feet wall while they had hidden themselves to save their lives---None of the inmates of the house where the occurrence took place were interrogated by Police---Complainant and the eye-witnesses, not being residents of the said house, were merely chance witnesses; evidence of such. witnesses had to be dealt with carefully---Trial Court failed to consider material contradictions in prosecution case which could not be made basis of conviction---Reasonable doubts in prosecution case entitled accused to benefit of doubt---Appeal was accepted and accused were acquitted of the charges.?

Muhammad Aslam Chishti for Appellants.

Haji Liaquat Ali for the State.

H. Shakil Ahmed for the Complainant.

Date of hearing: 20th May, 2010.

2011 P Cr. L J 346

[Quetta]

Before Ghulam Mustafa Mengal, J

NOOR AHMED-Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 217 of 2010, decided on 19th October, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.381-A---Theft of a car or other motor vehicles---Bail, grant of---Further inquiry---Offence under S.381-4, P.P.C. carried maximum punishment of seven years and did not fall within prohibitory clause of S.497, Cr.P.C.---Case against accused required further inquiry---Interim bail granted to accused was confirmed.

Muhammad Riaz Ahmed for Applicant.

Muhammad Anwar Mengal for the State.

2011 P Cr. L J 384

[Quetta]

Before Ghulam Mustafa Mengal and Mrs. Syeda Tahira Safdar, JJ

LAL MUHAMMAD---Appellant

Versus

THE STATE---Respondent

Criminal (CNS) Appeal No. 175 of 2009, decided on 9th September, 2010.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Prosecution proved that the accused was driving the truck carrying 320 Kg of Hashish---Inference could safely be drawn that accused was in the knowledge of the narcotic/drug hidden in secret cavities of the truck---Contraband recovered would be deemed to be in exclusive possession of the accused---In the absence of any ill-will or animosity on the part of the Police party, huge quantity of hashish could not be expected to have been planted on the accused---Judgment of Trial Court was based on correct application of law and proper evaluation of evidence on record---Charge against the accused stood proved--Prosecution succeeded in proving its case against the accused---Appeal was dismissed in circumstances.

Muhammad Qahir Shah for Appellant.

Haji Liaquat Ali for the State.

Date of hearing: 26th June, 2010.

2011 P Cr. L J 463

[Quetta]

Before Jamal Khan Mandokhail and Muhammad Noor Meskanzai, JJ

KARIM BAKHSH and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 80, 81 and 88 of 2006, decided on 3rd February, 2010.

(a) Railways Act (IX of 1890)---

----S. 101(c)---Endangering the safety of persons by any rash or negligent act or omission---Appreciation of evidence---F.I.R. revealed that a train had derailed and in that accident 8 persons died and about 114 injured---Accused person and two others, being Railway employees, were held responsible and case was registered against them---Act of accused would come within the definition of clause (c) of S.101 of Railways Act, 1890 and they were liable to be dealt with accordingly---Apart from act of accused, the Trial Court had not considered the fact that accused alone were not responsible for the accident---Railway would take upon itself an obligation to carry passenger safely to his journey; and to cause him no injury by way of wilful or careless act or omission---Since the Railway was governed and being run by its employees, it was equally responsible for any damage caused to the life and property of passenger by the negligence of any railway servant--Inspector of Railways had submitted his detailed report, wherein he had concluded that the accident was a result of negligence of accused persons', being employees of the railway, the department was equally responsible for the said act---In the present case Railway had not only accepted the report of Railway Inspector, but had also strongly relied upon the same---Railway, in the report, was found to compensate the passengers who either died or injured---While deciding, the present case, Trial Court failed to consider such fact---Since sentence could not be awarded to the employees, Railway was bound to compensate the deceased as well as injured of the accident, who were its passengers.

(b) Railways Act (IX of 1890)---

----S. 101(c)---Penal Code (XLV of 1860), Ss. 318, 319, 324, 337 & 427---Endangering the safety of the persons by any rash or negligent act or omission---Qalt-e-Khata---Appreciation of evidence---After considering statements of witnesses, the documents, especially the report of Railway Inspector, nothing had come on record which could suggest that the incident had taken place due to mala fide intention on the part of accused persons---Such was a matter of responsibility, which accused should have performed properly, but their negligence and omissions resulted into an unwanted incident, causing heavy loss in the shape of death of eight persons and also damage to the Railway Department, which could have been avoided, if they had been vigilant---Trial Court though had considered the evidence and material available before it; and had rightly found the accused responsible for the incident due to their negligent act, but, while reaching to the conclusion, accused had wrongly been charged and sentenced under S.302(c), P.P.C. and S.324, P.P.C.---Once it had been found that offence was a result of negligence and recklessness on the part of accused, then the intention for committing murder, was not established---Act of accused persons would come within the definition of 'qatl-e-khata' as defined in S.318, P.P.C. as well as S.101 of the Railways Act, 1890---Punishment awarded by the Trial Court under S.302(c), P.P.C., was converted into S.319, P.P.C. being qatl-e­khata---Accused were convicted and sentenced for a period of 5 years R.I. as Tazir---Prosecution having failed to prove the factum of injuries to the injured, no offence under S.337, P.P.C. was made out--Intention of accused being not to kill some one, and no element of sabotage or terrorism was found on the part of accused, S.324, P.P.C. also did not attract---However, sentence awarded by the Trial Court under S.427, P.P.C. was upheld---In view of the provisions of S.101 of Railways Act, 1890, Railway department would also compensate each of the deceased to the tune of Rs.5,00,000 to legal heirs of each of the deceased---All sentences would run concurrently.

1995 MLD 2271 ref.

Syed Iqbal Shah, Farrukh M. Malik and Waseem Jadoon for Appellants.

Naseer Ahmed Bangulzai for the State.

Date of hearing: 8th October, 2009.

2011 P Cr. L J 669

[Quetta]

Before Ghulam Mustafa Mengal and Mrs. Syeda Tahira Safdar, JJ

JAMSHED KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 153 of 2009, decided on 23rd December, 2010.

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

----S. 9(c)---Appreciation of evidence---Allegations of F.I.R. were fully supported by witnesses---No specific allegation of enmity or mala fide was levelled by the accused---Testimony of witnesses regarding arrest and recovery remained unshattered---Accused's contention that higher officials in whose presence search was conducted was not relevant as prosecution was not required to examine every witness---Omission to examine a witness would not discredit the account given by other eye­witnesses---Omission to examine said witnesses did not affect the merits of the case---Not conducting the search at the Naka (picket) and taking the vehicle to Police Station was an irregularity not fatal to the prosecution case---No material contradiction was found in the statements of the witnesses---Appeal was dismissed in circumstances.

Muhammad Aslam Chishti for Appellant.

Abdullah Kurd for the State.

Date of hearing: 10th August, 2010.

JUIIGMENT

GHULAM MUSTAFA MENGAL, J.---This appeal under section- 48 of Control of Narcotic Substances Act, 1997 is directed against the judgment dated 16-5-2009 passed by the learned judge, Special Court, Control of Narcotic Substances Act, 1997, Quetta, whereby appellant was convicted under section 9(c), of the Control of Narcotic Substances Act, 1997 and sentenced to suffer life imprisonment and pay fine of Rs.1,00,000 or in default whereof to undergo S.I for three years, with benefit of section 382-B, Cr.P.C.

The brief facts of the prosecution case are that on 18-8-2007, Complainant Ghulam Siddique, ASI, along with Muhammad Haneef, ASI, Muhammad Zahir, Head Constable and other Police Officials, while on patrolling duty received spy information to the effect that a person namely Jamshed Khan, who is indulged in Narcotics business, on the said day will transport Charas from Chaman to Quetta, through Corolla Silver colored Car, affixed Official Number Plate. On receiving said information, complainant along with Police Officials started checking of Vehicles at Baleli Check Post. At about 10 p.m. the Car in question, having Official number Plate bearing No.QAM-1331, reached the place of Naka Bandy. The Car was signaled to stop whereupon the driver of the Car accelerated the speed, which was chased by the Police party and apprehended with the help of second mobile party and F.C. mobile at Khaizai Chowk near Abduliah Khan Petrol Pump. The Driver of the Car disclosed his name Jamshed Khan son of Shadi Khan, by caste Sherani, resident of Nawan Killi, Quetta. The Driver and Car was taken to Police Station for purposes of checking. Search of the Vehicle was made through Mohammad Zahir, Head Constable under the supervision of S.P. Saddar, Nasir Mukhtar Rajpoot and Rao Anwar Ahmad Khan, IP/S.H.O. A thorough search of the Car led to recovery of 45 packets of Charas from Switch board, 20 packets from secret cavities of driving seat, 30 Packets from secret cavities of front Seat and 60 packets from secret cavities of back seat. The Charas was weighed and found 155 kilo gram. A meager quantity of 2 Kg Charas from each rod was separated out of the seized property for analysis, and sealed in parcel No.1 and remaining 153 K.g. Charas was sealed in a separate Parcels Nos.2, 3, 4 and 5. The accused further disclosed that Charas in question was handed over to him by Haji Abdul Mateen to deliver the same to Abdul Hafeez Sheikh at Chenut. The accused was arrested and F.I.R. No.154 of 2007 dated 18-8-2007, under section 9-C, of C.N.S. Act, 1997 was registered against the accused at Police Station, Air Port, Quetta.

After formal investigation challan was sent to the Court of Judge, Special Court, C.N.S, Quetta against the appellant, to which he pleaded not guilty and claimed trial.

At the trial, prosecution examined complainant Ghulam Siddique, P.W.1. He deposed that on 18-8-2007 he was posted at Police Station, Air Port, Quetta. He further deposed that on the said date he along with Muhammad Haneef, ASI, Muhammad Zahir, Head Constable and other Police Officials were on Special Mobile Gusht, during Gasht he received spy information that a person namely Jamshed is smuggling Narcotics towards Quetta. After receiving said information at 9-30 p.m. he along with his companions started checking of vehicles at Baleli Check Post. At about 10-00 p.m. a silver coloured Car bearing Registration No.QAM-1331 reached the place of checking. At the pointation of informer Car was signaled to stop, whereupon the Car became slow, but all of a sudden, the Driver of the Vehicle accelerated the speed, the Car was chased by Police party in an official Vehicle. He further deposed that the second Mobile team was also informed about the Vehicle through wireless set, whose position was at Abdullah Khan Petrol Pump, Khaizai Chowk, where Militia Mobile was also present. He further deposed that suspected Car was intercepted by Second Mobile Team and F.C. Mobile at Khaizai Chowk. The driver and Car was taken to Police Station for purposes of checking. Search of the Car was made through Muhammad Zahir, Head Constable under the supervision. of Mr. Nasir Rajpoot, S.P. Saddar and S.H.O/I.P Anwarullah Khan. The search of the Vehicle led to recovery of 45 packets of Charas from secret cavities of dash board, 20 packets of Charas from secret cavities of underneath of driving seat, 30 packets of Charas from secret cavities of front seat and 60 packets of Chassis recovered from secret cavities of back seat. On weighing the recovered Charas was found 155 kilograms, out of which 2 kilograms were separated by taking a meager quantity from each rod for Chemical analysis and sealed it in parcel No.1 while remaining 153 Kilograms Charas was sealed in separate parcels. He further deposed that the recovered Charas and Car was taken into custody through recovery memo; Exh.P/1-A in presence of witnesses. He produced F.I.R. as Exh.P/1-B. He also produced Vehicle as Art; P/1 and Charas along with empty packets as Arts; P/6 to 9. Muhammad Zahir, Head Constable was examined as P. W.2. He deposed that on 18-8-2007 he was posted at Police Station, Air Port. On the same day on spy information received by Siddique, A.S.I, that Vehicle is coming from Chaman side. After receiving said information he along with other Police Officials went to Baleli Check Post. At about 9-30 p.m. a Vehicle came there and turned towards Bacha Agha Road, which was chased and intercepted at Khaizai Chowk near Abdullah Khan Petrol Pump and the Vehicle along with Jamshed Khan, present in Court was brought to Police Station, where S.H.O., Rao Anwar Ahmad and A.S.P. Usman Gondal were present. Upon search of the Vehicle 45 Packets of Charas in rod shape were recovered from the secret cavities of switch board, 20 packets from beneath of driver seat, 30 packets from secret cavities of front seat, 60 packets from the back of the driver seat. He further deposed that two number plates were recovered from the trunk/boot of the vehicle. He further deposed that green coloured number plates bearing No.1331 were affixed on the vehicle. On inquiry accused could not produced the documents of the Vehicle, accused produced authority letter of P.T.C.L. He further deposed that on weighing the Charas it became 155 kgs. out of recovered substance 2 kgs. Charas was separated for Chemical analysis and remaining Charas was sealed in four parcels and taken into custody vide recover memo; Exli.P/1-A. He identified the accused and recovered Substance present in the Court. Amanullah, S.I appeared as P.W.3. He deposed that on 18-8-2007 he was posted as Investigating Officer in Police Station, Airport. After registration of the case, investigation of the case was entrusted to him. He took into possession Parcel Nos.1 to 5, Car bearing Registration No.QAM-1331, authority letter and two number plates bearing No.ALP-052-Sind. He got .arrested accused in the present case and recorded the statement of witnesses under section 161, Cr.P.C. On personal search of the accused he recovered National Identity Card, Mobile Phone and two Mobile Sims, which were taken into possession vide recovery memo; Exh.P/3-A. He produced the said articles before the trial Court as Articles 16 and 17. He further deposed that on 21-8-2007 he sent parcel No. 1 to F.S.L. for Chemical Examination. He sent a letter to the Excise 'Officer and authority letter was gent to the P.T.C.L for verification. On 27-8-2007 he received a letter from Excise Officer to the effect that record of the Vehicle No.QAM-I331 is not available in the Excise Office record. He also received a letter from P.T.C.L. authorities to the effect that neither the vehicle in question is their property nor Jamshed Khan is their employee. Thereafter a separate case was registered against the convict-appellant vide F.I.R. No.157 of 2007 under sections 420-465-468 and 471, P.P.C. on 25-8-2007 he received Chemical Analysis report Exh.P/3-B, from F.S.L and thereafter he submitted incomplete Challan of case as Exh.P/3-C.

After the close of prosecution evidence, the appellant was examined under section 342 Cr.P.C. He denied the prosecution allegations and recorded his statement on Oath as envisage under section 340(2), Cr.P.C. and produced D.W.1, Shoukat Hussain in his defence. At the conclusion of trial, the learned trial Court after hearing the parties passed the above said conviction and sentence vide impugned judgment, hence this appeal.

We have heard the learned counsel for the appellant and the learned counsel representing the State and also examined the record with their help. Learned counsel for the appellant contended that in view of material contradictions in statements of P.W. and P.W.2, no reliance can be placed on the said evidence. He further contended that higher officer namely Nasir Rajpoot and Usman Gondal have not been produced before the trial Court. He further contended that the Vehicle was not searched at Khaizai Chowk and brought to 5/6 kilometers at Police Station, Airport, which makes the recovery doubtful; therefore, the appellant is entitled to the benefit of doubt and may be acquitted of the charge.

As against that the learned State counsel supported the impugned judgment and submitted that huge quantity of contraband was recovered from the vehicle in control and possession of appellant and such heavy quantity of Charas cannot be foisted on the appellant and recovery of Charas has been proved on the basis of evidence available on record. He further urged that prosecution is legally not bound to produce all the witnesses, as such, no illegality or misreading of evidence has been. pointed out by the learned counsel for appellant, therefore, the appeal of the convict-appellant is liable to be dismissed.

We have heard the learned counsel for the parties and have gone through the record with their valuable assistance.

The facts of the case of prosecution as discussed above are that on prior information that appellant, who is indulged in narcotics business, will transport huge quantity of Charas from Chaman to Quetta in a Corolla silver coloured car. On receiving said information complainant along with other police officials laid a Naka at Baleli Check Post; at about 10-00 p.m. a Corolla car having affixed the number plate came at the check post, which was signaled to stop, the driver of the car accelerated the speed, which was chased and apprehended at Khaizai Chowk near Abdullah Khan Petrol Pump with the help of second mobile team and F.C. personnel. The driver of the car disclosed his name as Jamshed Khan son of Shadi Khan. The vehicle along with the accused was brought to the Police Station, Airport, where, in the presence of Muhammad Haneef ASI and Muhammad Zahir HC (P.W.2) from the secret cavities made in switch board, driver seat, front seat and, back seat huge quantity of Charas was recovered. Search of vehicle was made through Muhammad Zahir, Head Constable, having accompanied the complainant at the relevant time, has fully supported the statement of P. W .1, Ghulam Siddique on material particulars of the prosecution case with regard to apprehension of the car and arrest of appellant and recovery of 155 kilogram of Charas from the secret cavities of the car. The contents of the F.I.R. has been fully supported by P.W.1 Ghulam Siddique and supported by P.W.2 Muhammad Zahir, Head Constable, who is Mushir of recovery of Charas. In cross-examination nowhere any specified allegation of enmity or mala tides has been suggested by the appellant. The testimony of P.W.1, Ghulam Siddique and P.W.2 Muhammad Zahir regarding ,arrest of the appellant and. recovery of Charas from secret cavities of the car remained unshattered and the testimony of both the witnesses are fully in consonance with each other without any material dent regarding recovery of such huge quantity of charas from the car. All the quantity of the two kilogram out of recovered charas was sent to the Chemical Analysis, which was found to be charas vide Exh.P/3-B. The prosecution witnesses were cross-examined at length by the defence, but failed to make any gain out of this exercise. As far as the contention of learned counsel for the appellant that the higher officials in whose presence, the vehicle was searched, were not produced is not relevant, because the law in this regard is well settled now, that the prosecution is not required to examine every witness of a crime and that the omission if made would not discredit the account given by other eye-witnesses. We are of the view that non-examination of witnesses namely Nasir Rajpoot and Usman Gonda) has not affected merits of the instant case.

As far as the second contention of learned counsel for the appellant that the vehicle was not searched at Khaizai chowk and was brought to Police Station is concerned, such defect in investigation is an irregularity and not illegality and not fatal to the prosecution case.

2011 P Cr. L J 711

[Quetta]

Before Jamal Khan Mandokhail, J

MUHAMMAD ANWAR and 4 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 270 of 2010, decided on 11th January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.365 & 34---Kidnapping or abducting with intent secretly or wrongfully to confine person, acts done by several persons in furtherance of common intention---Bail, grant of---Further inquiry---F.I.R. was lodged with unexplained delay of two days---No specific role was assigned to the accused---Property dispute between the complainant and the accused made the case of accused one of further inquiry---Names of the eye-witnesses were not mentioned in the F.I.R.---Alleged abductee having not been recovered yet, prosecution story was still shrouded in mystery---Additional Sessions Judge's observation that the abductee was in the custody of accused was unjustifiable and unwarranted---Alleged offence did not fall within prohibitory clause of S.497, Cr.P.C.---Investigation of the case having been completed, accused were no more required for further investigation---Bail could not be withheld as a punishment---Bail was granted.

Muhammad Ilyas for Applicants.

Date of hearing: 31st November, 2010.

2011 P Cr. L J 825

[Quetta]

Before Mrs. Syeda Tahira Safdar and Ghulam Mustafa Mengal, JJ

NADIL JAN and another---Appellants

Versus

THE STATE---Respondent

Criminal (CNS) Appeal No. 133 of 2007, decided on 30th December, 2010.

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

----S. 9(c)---Prohibition of possession, import or export and trafficking of narcotic---Appreciation of evidence---Both prosecution witnesses corroborated statements of each other and no material contradiction appeared in their statements, despite cross-examination made at length---Samples taken from whole of the material was sent to the Chemical Expert from whom positive report had been received---Accused persons during course of the trial had never challenged that recovered substance was not narcotic, sending of entire recovered material for analysis, was not necessary---Non-appearance of Investigating Officer, would not be fatal for the case of prosecution as all the relevant material had been placed before the court through remaining witnesses; and sufficient evidence was available on record to prove the charge against accused persons---Accused persons tried to prove their false involvement in the case, but they failed to explain their presence at the site---Even otherwise the presence and their arrest from the site was not denied by accused persons---Accused claimed that at relevant time they were busy in hunting and when they heard noises of firing they laid down on earth 'in order to save themselves and that they had been falsely involved in the case---Accused had failed to establish presence of any hunting ground in the area; they even failed to show that what they were hunting and with what weapon, defence plea being without any weight, no reliance could be made on the same---No enmity or mala fide was shown by accused persons on the part of personnel of Anti-Narcotic Force due to which they were involved in the case---Trial Court had assessed the material on record properly and arrived to the conclusion which was in accordance with law---Accused had failed to point out any illegality or irregularity committed by the Trial Court which required interference by High Court---Accused having failed to make out any case in their favour, their appeal against their conviction and sentence, was dismissed, in circumstances.

2004 PCr.LJ 692. ref.

Syed Ayaz Zahoor for Appellants.

Shoukat Ali Rakhshani, Special Prosecutor ANF for the State.

Date of hearing: 18th August; 2010.

2011 P Cr. L J 1012

[Quetta]

Before Muhammad Noor Meskanzai, J

MUHAMMAD AKBAR and 2 others---Applicants

Versus

THE.STATE---Respondent

Criminal Bail Application No. 247 of 2010, decided on 9th December, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.324/34---Attempt to commit qatle-e-amd---Bail, grant of---Further inquiry---Two eye-witnesses attributed act of indiscriminate firing to all three accused persons, which culminated in causing of bullet injury to the son of the complainant---Statement of victim recorded later on took a departure from the story as far as the causing of injury was concerned---Delay of 18 hours in lodging F.I.R., while Police Station was situated at. the distance of two kilometers---Police had collected eight empties from different places, but site plan did not show exact location of empties and presence of accused at the relevant place---One of the accused persons was not entitled for grant of bail because victim had sustained bullet injury in consequence of firing made by said accused---Since allegation against other two accused persons was of ineffective firing, their case fell within the scope of subsection (2) of S.497, Cr.P.C. calling further inquiry---Said two co-accused, were allowed bail, in circumstances.

Riaz Ahmed for Applicants.

Miss Rubina Butt, D.P.-G. for the State.

Date of hearing: 1st December, 2010.

2011 P Cr. L J 1053

[Quetta]

Before Qazi Faez Isa, C.J. and Mrs. Syeda Tahira Safdar, J

Mst. SHAZIA---Petitioner

Versus

HABIB ULLAH, S.H.O. and another---Respondents

Constitutional Petition No. 334 of 2009, decided on 17th February, 2011.

Penal Code (XLV of 1860)---

----S. 365-A---Constitution of Pakistan, Art.199---Constitutional petition---Kidnapping or abduction for ransom---Petitioner had levelled allegations against respondents for committing offence of abduction of her daughter, aged 10 years---Petitioner had filed the petition without disclosing the facts and had concealed facts despite knowledge and by so doing had shown her mala fide---Petitioner was in knowledge of marriage of her daughter with accused, but she failed to disclose those facts in the petition---Said concealment would be deemed to be intentional and. deliberate which was only to obtain some favourable order---Mala fides of petitioner were apparent from her conduct---Party seeking relief must come to the court with clean hands, but the petitioner, in the present case, had acted contrary to it; her conduct and intentional non-disclosure of material facts, in itself disentitled her for any relief---Petitioner had filed the petition for ulterior motives to harass the respondents---Petition being without merits, was dismissed, in circumstances.

Saeed Ahmed for Petitioner.

Rauf Atta, Standing Counsel and Hassan Abbas Malik, P.I. for Respondents.

Date of hearing: 9th November, 2010.

2011 P Cr. L J 1076

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

MUHAMMAD ASIF---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No. 5 of 2010, decided on 4th January, 2011.

Penal Code (XLV of 1860)---

---Ss. 380 & 457---Qanun-e-Shahadat (10 of 1984), Art.117---Theft in dwelling house, lurking house trespass or house breaking by night---Appreciation of evidence---Benefit of doubt---Accused contended that glaring contradictions in prosecution witnesses were not considered by the courts below---Trial Court instead of considering the evidence produced by prosecution, made assessment on the basis of statement of the accused which was neither proper nor legal---Apart from any plea taken by the other side, the defence, prosecution had to prove the case beyond doubt and such burden did not shift from the prosecution to the other side even in a case where accused had failed to establish a specific plea in his defence---Initial burden lay on the prosecution to establish its case from all doubts---Prosecution had to establish the act of commission of theft by the accused---Prosecution witness was merely chance witness; his evidence had to be assessed with caution and care as his presence at the place of occurrence could not be explained---Complainant reported the matter after apprehension of the accused---Possibility of involvement of both the complainant and the witness in the alleged offence could not be ruled out---Witnesses failed to corroborate the statements of each other---Trial Court and the Appellate Court failed to appreciate the facts of the case and exercise jurisdiction vested in them by not giving benefit of doubt to the accused---Impugned orders were set aside and accused was acquitted of the offence.

Malik Sikandar Khan for Petitioner.

Miss Noor Jehan for the State.

Date of hearing: 3rd December; 2010.

2011 P Cr. L J 1166

[Quetta]

Before Muhammad Noor Meskanzai, J

ASIMULLAH---Applicant

Versus

Haji ABDUL BARI and 5 others---Respondents

Criminal Bail Cancellation Application No. 197 of 2009, decided on 23rd October, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.337-A, 337-D & 337-F---Causing Shajjah, Jaifa and Ghair-Jaifa---Cancellation of bail, application for---F.I.R. having been lodged with inordinate and considerable delay, possibility of lodging of F.I.R. after consultation and deliberation, could not be ruled out---Mere nomination of accused, in the F.I.R. in such circumstances, would not disentitle him to the relief of bail, if otherwise he was found entitled for concession of bail---No documentary proof was available to the effect that accused had misused the concession of bail and there was no complaint to any competent forum in that respect---Affidavits filed in that connection seemed an attempt to justify cancellation of bail, which were not sufficient to warrant cancellation of bail---Bail had been granted to accused on merits and Trial Court had correctly concluded that no case for cancellation of bail had been made out---Even otherwise once bail was granted by a competent court then strong and exceptional circumstances were required for its cancellation---All ingredients requiring cancellation of bail were lacking and missing in the case---No reason being available to interfere with legal orders passed by courts below, application for cancellation of bail was dismissed, in circumstances.

Abdul Sattar Kakar for Applicant.

Abdul Ahad Kakar and Abdullah Kurd for Respondents.

Date of hearing: 9th October, 2009.

2011 P Cr. L J 1214

[Quetta]

Before Ghulam Mustafa Mengal, J

Syed NADIR SHAH---Applicant

Versus

THE STATE through FIA---Respondent

Criminal Bail Application No. 106 of 2011, decided on 13th May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Emigration Ordinance (XVIII of 1979), S.22(b)---Receiving money for providing foreign employment---Bail, refusal of---Allegation against accused was that he and his sons had taken huge amount from the complainant on the pretext of sending them to abroad---Punishment provided for the alleged offence was upto 14 years---Accused was nominated in the F.I.R.---Allegations as contained in the F.I.R. were duly supported by the complainant and prosecution witnesses---Prosecution case was at preliminary stage and deeper appreciation of evidence of the prosecution at bail stage could not be discussed---Bail application of accused was rejected, in circumstances.

Muhammad Mustaqeem v. State 2004 YLR 68; Saeed Ahmed v. State 1996 SCMR 1132; Syed Amanullah Shah v. State PLD 1996 SC 241 and Zafar Iqbal v. State 2000 PCr.LJ 834 ref.

Syed Ayaz Zahoor for Applicant.

Rauf Atta, Standing Counsel for the State.

2011 P Cr. L J 1490

[Quetta]

Before Abdul Qadir Mengal and Jamal Khan Mandokhail, JJ

HABIBULLAH---Appellant

Versus

GHULAM SARWAR and another---Respondents

Criminal Acquittal Appeal No. 95 of 2010, decided on 20th June, 2011.

Penal Code (XLV of 1860)---

----S. 302/34-Explosive Substances Act (VI of 1908), Ss.3, 4 & 5--Anti-Terrorism Act (XXVII of 1997), S.7---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-e-amd, causing explosion and acts of terrorism---Appeal against acquittal---Complainant did not disclose name of respondent/accused in his statement and alleged eye-witnesses nominated accused in their statements under S.161, Cr.P. C. after four days of the occurrence---F.I.R. was got registered after the arrival of the witnesses and said witnesses admitted that ,they recorded their statements after consultation and deliberation with the complainant--Presence of witnesses at the spot at relevant time being highly doubtful, their statements were ruled out from consideration---Statements of two prosecution witnesses did not appeal to a prudent mind for the reason that neither they disclosed the name of accused to the complainant, nor they associated him for the registration of the F.I.R.---Said two witnesses also did not help him to take the dead bodies or the injured to the hospital---Eye-witnesses had failed to prove the association of accused with the main accused persons---Evidence on a capital charge must be from unimpeachable sources or be supported from strong circumstances---None of those eye-witnesses who were present at the site Were produced which had given adverse presumption against the prosecution---Trial Court after proper evaluation and assessment of evidence had acquitted accused---No illegality and impropriety being present in the impugned judgment, appeal against acquittal Was dismissed, in circumstances.

1999 SCMR 1030 and 1972 SCMR 572 rel.

Abdul Ghani Mashwani for Appellant.

Sardar Ahmed Haleemi, Spl. Prosecutor for Respondents.

Date of hearing: 26th May, 2011.

2011 P Cr. L J 1569

[Quetta]

Before Qazi Faez Isa, C.J. and Muhammad Noor Meskanzai, J

Moulvi MUHAMMAD ISHAQ---Petitioner

Versus

ZUBAIR AHMED and 2 others---Respondents

C.P. No. (S)28 of 2010, decided on 24th May, 2010.

Constitution of Pakistan---

----Art. 199---Penal Code (XLV of 1860), Ss.193 & 211---Criminal Procedure Code (V of 1898), S.195---Giving false evidence and making false charge---Constitutional petition---Maintainability---Petitioner, father of two accused, was aggrieved of judgments of two courts below whereby said accused were convicted and sentenced and that his complaint under Ss.193 and 211, P.P.C. by Magistrate was not entertained---Petitioner was not a party in the proceedings carried out in consequence of F.I.R. against his sons---Relief prayed for by the petitioner in constitutional petition did not fall within the seisin of Art.199 of the Constitution---To maintain constitutional petition two prerequisites must be satisfied; firstly petitioner must be an aggrieved person; and secondly no alternative and efficacious remedy should be available to the petitioner---Both said prerequisites being missing in the case, judgments passed by lower forums were assailable by accused persons themselves and not by their father through constitutional petition and alternative remedy by way of filing revision petition was available to accused persons---Judicial Magistrate and Sessions Judge in circumstances, had committed no illegality in non-entertaining complaint filed under Ss.193 & 211, P.P.C.-Petition was dismissed.

Petitioner in person.

Abdul Rahim Mengal, Assistant A.-G. for Respondents.

Date of hearing: 13th May, 2010.

2011 P Cr. L J 1584

[Quetta]

Before Naeem Akhtar Afghan and Muhammad Noor Meskanzai, JJ

IKRAMULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 302 of 2005, decided on 30th June, 2011.

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

----Ss. 302(b), 365 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Qatl-e-amd, kidnapping and Harabah---Appreciation of evidence---Delay of 10 days in lodging of F.I.R. had satisfactorily been explained---Such delay was not fatal as there was no motive for false implication of accused---After registration of F.I.R., the vehicle of the deceased was recovered from a street adjacent to the orchard of accused and absconding accused---Accused, immediately after his arrest made a "disclosure and in pursuance of disclosure of accused on his pointation, dead body of the deceased was recovered---Recovery of vehicle and the place of the recovery of dead body had not been disputed/denied by the defence during cross-examination of the witness---Evidentiary value of the recovery of dead body at the pointation of accused, could not be undermined on any valid ground---Case was based on strong circumstantial evidence and all the circumstances constituted a chain and no link was missing; and combined effect of the same had established the guilt of accused who had shared common intention with co-accused in committing murder of deceased---Accused' could not have taken any part in firing upon the deceased, but the killing had been made in furtherance of the common intention of all including the accused---Accused, in circumstances, was held vicariously liable for the murder of the deceased and his conviction under S.302(b), P.P.C. was not open to any exception.

Zakir Khan and others v. The State 1995 SCMR 1793; 1997 SCMR 340; PLD 1991 SC 923 and PLD 1996 SC 122 rel.

(b) Evidence---

----Circumstantial evidence---Circumstantial evidence should be so interlinked that it formed a continuous chain, one end of which would touch the dead body and the other neck of accused excluding all the hypothesis of his innocence.

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

----S. 34-Common intention---Existence of common intention which usually consisted of motive, pre-concert and pre-arrangement could not always be proved by direct evidence; and could only be inferred from the attendant circumstances of the crime---When criminal act was done by several persons in furtherance of common intention of all, each of such person was liable for the act in the same manner as if it was done by him alone.

Abdul Karim Khan Yousafzai for Appellant.

Liaquat Ali for the State.

Date of hearing: 30th May, 2011.

2011 P Cr. L J 1756

[Quetta]

Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ

SHAFI MUHAMMAD and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. S-2 of 2011, heard on 30th June, 2011.

Penal Code (XLV of 1860)---

----Ss. 302(b), 147 & 148---Qatl-e-amd---Appreciation of evidence---Connection of accused with the crime was sought to be established by the evidence of prosecution witnesses, who were closely related to each other and were inimical to accused person---Said witnesses were not confidence-inspiring---Evidence of said witnesses in view of their inter se relationship and their contradictory version, could not be believed without independent corroboration on material particular---One piece of tainted evidence could not corroborate other piece of tainted evidence---Extra-judicial confession allegedly made by accused person in presence of prosecution witnesses, being a weak type of evidence could not be made basis for conviction, in a case of capital charge, unless corroborated by some other tangible piece of evidence which should be free from infirmity, made under the circumstances which were found to be reliable---Witnesses had disclosed the names of accused persons five days after the incident---Had they seen the accused at the night of incident, they could disclose the names of accused persons at the earliest opportunity---Even otherwise, extra-judicial confession allegedly made by accused persons being a joint confession, was inadmissible in evidence; and no reliance could be placed on such inadmissible piece of evidence at all---Identification parade was absolutely of no avail to the prosecution for the reason that on the one hand both the witnesses had deposed that they could not identify the culprits due to pitch dark at the dead hours of the night, but on the other hand, pointed out the accused persons as culprits---Both accused persons were not only known to said witnesses previously, but were also nominated by names through affidavits, submitted five days after the alleged incident---Medical evidence was also not in line with ocular and marginal accounts---Even otherwise, the medical evidence was not of much help to the prosecution, as the same could not identify or locate the culprits of the offence in a case, where the presence of the eye-witnesses itself was found to be doubtful---Recoveries, had been effected from accused person after 10 days of the occurrence---Joint recovery was not permissible under the law and could not be taken into consideration---Recovery of crime weapons, expert's report and medical evidence by itself being evidence of purely corroboratory nature, in absence of any direct or substantive evidence, were not sufficient to bring home charge against accused persons---Unless substantive direct evidence was available, conviction could not be based on any other type of evidence, howsoever it could be reliable---Impugned judgment passed by the Trial Court, was set aside and accused were acquitted of the charge and were directed to be released from jail.

1991 SCMR 643 rel.

Nasir Marri for Appellants.

Abdullah Kurd for the State.

Date of hearing: 30th June, 2011.

2011 P Cr. L J 1819

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

ILYAS---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 46 of 2010, decided on 29th July, 2011.

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

----S. 394/34---Voluntarily causing hurt in committing robbery---Appreciation of evidence---Complainant was not an eye-witness of the occasion, but he reported the matter at the instance of victim and other female, who were the eye-witnesses of the occurrence---No one was nominated in F.I.R., but it had been alleged that two persons while riding a motorcycle, snatched the golden ear-rings of victim female and injured her---Accused was arrested later in time and was implicated in case on the basis of an identification parade allegedly held after his arrest, whereby he was got identified by victim lady---Prosecution witness had failed to describe the physical appearance and other description of accused persons---Said prosecution witness was not associated with the identification proceedings held by Investigating Officer during course of investigation---Both the eye-witnesses had failed to describe the physical description, colour, height and other identification features of accused persons---Identification parade had lost its evidentiary value, thus worth no consideration, in circumstances---Disclosure was allegedly made of accused after his arrest, but it was an established fact that there was no discovery of a new fact, nor on basis of such disclosure any incriminating material was recovered---Disclosure which otherwise had not been established, was of no worth, nor could be relied upon---Variations and improvements existed in the statements of the witnesses and the Trial Court had failed to consider said contradictions appearing in statements of the witnesses---Relevant law was not appreciated by the Trial Court, which had made its order not sustainable---Case of prosecution had become doubtful on account of said discrepancies benefit of which was to be extended in favour of accused---Impugned judgment of the Trial Court was set aside, accused was acquitted of the charge and was released, in circumstances.

1996 PCr.LJ 503; PLD 2005 Quetta 86; 1992 SCMR 2088 and Asghar Ali v. The State 1992 SCMR 2088 ref.

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

----Art. 22---Identification parade---Value---Identification parade was not a substantive piece of evidence, but was a corroboration in nature and in circumstances, complete reliance and conviction could not be made and based solely on such evidence---Identification of the culprit made during course of investigation though was material and could be considered as a piece of evidence, but that identification must be for the purpose of identifying the real culprit, further specifying the role played by the person so identified in commission of offence; and in absence of the same, the identification so made was of no legal effect and devoid of consideration.

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

----Arts. 38, 39 & 40---Confession made to Police Officer---Value---Confession made to a Police Officer, was not to be proved against accused, but it could be used against accused only to the extent of discovery of a new fact---Burden was on the prosecution to establish at first instance that any disclosure was made; and secondly it led to the discovery of some fact relating to the commission of the offence, which was not within the knowledge of the police.

Sardar Ahmed Haleemi and Najamuddin Mengal for Appellant.

Qazi Abdul Malik for the State.

Date of hearing: 24th December, 2010.

2011 P Cr. L J 1889

[Quetta]

Before Naeem Akhtar Afghan and Muhammad Noor Meskanzai, JJ

RAHIM KHAN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 208 of 2010, decided on 18th July, 2011.

(a) Explosive Substances Act (XI of 1908)---

----Ss. 4 & 5---Anti-Terrorism Act (XXVII of 1997), Ss.7 & 27-A---Possessing explosive substances and act of terrorism---Appreciation of evidence---Occurrence had taken place at 2.25 a.m. (night) and it was not possible to associate a private witness in such like cases at the odd hours of night---Record had shown that efforts were made to associate private witnesses, but no body was available---Defence had failed to bring any material on record to show or allege the malice or motive against the police witnesses for false implication of accused persons---No adverse inference, in circumstances, could be drawn against the prosecution for not associating private persons as witnesses---Police Officials were competent witnesses and could be credited with veracity, unless they were demonstrated to be false witnesses having maliciously accused an innocent person of the commission of an offence for ulterior motives---Contentions of counsel for accused persons regarding non-compliance of S.103, Cr.P.C., had no force---Record had revealed that prosecution witness who was member of Investigating team, had tendered the report/expert opinion given by Crises Management Officer; and same was never objected to by the defence counsel at the time of its exhibition---Objection raised by accused persons with regard to admissibility of the Expert report, was of no avail in circumstances---Recovery of explosives from the house/rooms in exclusive possession of accused, had been established---Nothing had been brought on record by accused persons to show or demonstrate that the prosecution witnesses had any malice, grudge or ill-will against accused persons to falsely implicate them---Nature of the recovered articles being explosives had been proved at the trial---Defence plea was not consistent and in support of their defence plea, they had failed to bring any material on record---Prosecution had proved the recovery of explosives in huge quantity from the possession of accused persons; who failed to account for the same---In view of the presumption attached under S.27-A of Anti-Terrorism Act, 1997, case against accused persons stood proved---Trial Court had already taken lenient view with regard to quantum of sentence---Conviction and sentence awarded to accused by the Trial Court, was maintained, in circumstances.

Muhammad Arif v. The State 2004 SCJ 137; Suriya Bibi v. State 2008 SCMR 825 and Afzal Ahmed v. The State 2003 SCMR 573 rel.

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

----S. 103---Making a search---Purpose---Main object of S.103, Cr.P.C. was to ensure the effecting of recovery honestly and fairly and to exclude any possibility of concoction and transgression---Section 103, Cr.P.C. was not meant to disbelieve the statement of official witness in any other circumstance---Police Officials were competent witnesses of recovery memo and their statements could not be discarded merely because they belonged to Police department.

Sohail Ahmed Rajput for Appellants.

Sardar Ahmed Haleemi, Special Prosecutor, ATF for the State.

Date of hearing: 21st June, 2011.

2011 P Cr. L J 1899

[Quetta]

Before Abdul Qadir Mengal and Jamal Khan Mandokhail, JJ

KHALIQUE DAD alias JAN AGHA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 361 of 2008, decided on 1st August, 2011.

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

----Ss. 9(c), 21 & 25---Criminal Procedure Code (V of 1898), S.103---Possessing contraband narcotics--- Appreciation of evidence---Prosecution had successfully established the recovery of contraband material from the house of accused---Objection that the recovery had been made in violation of the provisions of S.103, Cr.P.C. as no search warrants had been taken in the matter, gave no help to accused---Under the provisions of S.25 of the Control of Narcotic Substances Act, 1997, application of S.103, Cr.P.C. had been excluded---Neglecting provisions of S.21 of the Control of Narcotic Substances Act, 1997, which were directory in nature and not mandatory, would not throw the entire proceedings of recovery out of consideration, particularly when none from the raiding party had been shown having any enmity against accused---No specific or significant contradiction was noticed in the statements of prosecution witnesses, which could discredit or disbelieve their evidence---Prosecution evidence was in consonance, corroboratory and had no defect at all---No dent had been caused to the evidence of prosecution witnesses from defence side---No misreading and non-reading of evidence was found in the case---No defect or lacuna having been noticed in the judgment of the court below, same could not be interfered with, in circumstances.

2007 YLR 3087; 2008 YLR 985; 2006 PCr.LJ 58; 2006 PCr.LJ 988 and 2003 SCMR 54 ref.

2005 MLD 1718 and 2005 PCr.LJ 1858 rel.

Muneer Ahmed Langove for Appellant.

Abdul Ghias Nousherwani, P.-G. for the State.

Date of hearing: 20th July, 2011.

2011 P Cr. L J 1948

[Quetta]

Before Abdul Qadir Mengal, J

BOSTAN and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Quashment Petition No.51 of 2011, decided on 24th August, 2011.

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

----Ss. 22-A, 154, 157, 158, 159 & 561-A---Quashing of order, petition for---Petitioner had sought quashing of order passed by Ex-officio Justice of Peace, whereby application filed by respondent under S.22-A, Cr.P.C. was accepted and S.H.O. concerned was ordered to register the F.I.R. against the petitioners---Contention of counsel for the petitioners was that if Police Officer had suspected commission of cognizable offence in respect of information received under S.154, Cr.P.C., then he could decline to register the case and submit the investigation report to the Magistrate in view of S.158, Cr.P.C.; and then it was the duty of the Magistrate under S.159, Cr.P.C. to hold investigation or preliminary inquiry or otherwise dispose of the matter as provided under Cr.P.C.---Contention of counsel for the petitioners seemed devoid of force as counsel had intermingled the provisions of S.154, Cr.P.C. with the provisions of S.157, Cr.P.C.---Under the provisions of S.154, Cr.P.C., the S.H.O./Police Officer was bound to register the case against accused, irrespective of fact that the information, which he had received was correct or otherwise; whereas S.157, Cr.P.C. was an independent section, which would start operating after the registration of the F.I.R., and thereafter if S.H.O. suspected that information was false or frivolous, then he could make an investigation in respect of a cognizable matter and submit his report to Magistrate under S.158, Cr.P.C.---Magistrate, then could hold fresh investigation or preliminary inquiry under S.159, Cr.P.C. or dispose of the same in accordance with law.

PLD 2007 SC 539 ref.

PLD 2007 SC 539 rel.

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

----Ss. 22-A & 561-A---Quashing of order, petition for---Functions of Justice of Peace---Nature---Function of Ex-officio Justice of Peace under S.22-A(6), Cr.P.C., was of administrative or ministerial nature and not of Judicial character---Objection of the petitioner that impugned order passed by Justice of Peace, was not a speaking order; and that he had not been given proper opportunity of hearing, had no weight---Order of Justice of Peace needed no interference under S.561-A, Cr.P.C.---Exercising the power under S.561-A, Cr.P.C., to determine the fate of a criminal case, was a serious departure from the normal course---Any deviation from the normal course was always pregnant with the risk of being led astray---Mere claim of innocence by an accused, could never be considered sufficient to justify such a departure, because, if that was so permitted; then every accused would opt to stifle the prosecution; and to have his guilt or innocence determined under S.561-A, Cr.P.C.---Powers under S.561-A, Cr.P.C., ordinarily, only could be used where no provision existed in the Code to cater for a situation; or where the Code offered no remedy for the redressal of the grievance---In the present case, remedy was for the petitioner in case of non-availability of evidence or claiming of his innocence was that he could file at any stage an application for his acquittal under the provisions of S.249-A or S.265-K, Cr.P.C.---Petition was dismissed.

Ahsan Rafiq Rana for Petitioners.

Ajmal Khan Kakar for Respondent No.2.

Abdul Sattar Durrani, Additional Prosecutor-General for the State.

Date of hearing: 19th August, 2011.