PCRLJ 2012 Judgments

2012 P Cr. L J 11

[Federal Shariat Court]

Before Shahzado Shaikh, J

MUHAMMAD ASLAM---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No. 112/I of 2009, decided on 4th March, 2011.

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

----Ss. 10(3) & 11---Zina-bil-jabr liable to Tazir, abducting or inducing a woman to compel for marriage---Appreciation of evidence---Accused had claimed that his Nikah was performed with the alleged abductee---Age of alleged abductee, according to the lady doctor was 16 years at the time of her medical examination---Alleged performance of Nikah of alleged abductee, with accused was not legally transparent as none of her parents or relations were associated in the process, which could legally and in Shariah render apparent support to the claim of accused---Accused had not produced any of the witnesses of alleged Nikah, nor produced Nikah Khawan in support of his plea of Nikah; nor any other material regarding registration of the same---Plea of accused, had no legal value or weight that alleged abductee had contracted her Nikah with accused with her free consent which had rendered the commission of intercourse with the victim/alleged abductee by accused within the mischief of definition of "zina-bil-jabr"---Alleged abductee was only about 16 years of age, whereas accused was more than 44 years of age and he could well be of age of her father---Question of free consent and intelligent choice of the girl of 16 years old, in such circumstances, did not arise---Even if the alleged consent of victim girl was obtained by putting her in fear, it was not a free consent and freely considered choice for Nikah---Some of the ingredients of S.11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 were asserted by the victim saying that accused was armed with gun at the time of occurrence---Element of show of force was apparent in the case, in circumstances---Prosecution had proved the guilt of accused beyond any reasonable doubt and he stood rightly convicted under Ss.10(3) & 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 by the Trial Court---Conviction of accused was maintained---Prescribed sentence under S.11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was imprisonment for life and not less, but the Trial Court had awarded rigorous imprisonment of 10 years only though it was not empowered to do so and fine was also mandatory to be imposed under S. 11 of the Ordinance---Extenuating and mitigating circumstances and the fact that family of accused, particularly his wife, had also been made to suffer for no fault of theirs; and continuing the separation of accused would make life of entire family more miserable than his own life imprisonment---Enhancement of sentence, in such peculiar situation, would not be appropriate and safe---Sentence of 10 years' R.I. awarded to accused by the Trial Court, was converted into already undergone to resolve the complication created by the judgment of the Trial Court by not awarding the prescribed sentence and also to safeguard against any element of injustice.

(b) Islamic Law---

----Marriage---Consent in marriage---Considerations---Awareness about marriage encompassed more serious matters than mere carnal knowledge (relating to physical feeling and desires of body)---Islam had placed conjugal consent over high pedestal of morality, rather than carnality---Consenting adult was a person who had come of age enough and was responsible enough to decide and understand consequences of marriage---Marriage, involved a consent which was quite distinct in definition and in differentiation from all types of other consent e.g., common consent, mutual consent, or implied or express consent---Consent for marriage was eloquent and declaratory, being more specific and expressive---Consent for marriage had deeper and wider implications for criminal, civil and family law e.g., inheritance etc.---Free consent for marriage did not mean just acceding to or saying "yes" to the circumstantial or situational dictate; it needed to be analyzed considering, ability of exercising free choice; capacity (legal capacity) not only sane, but mature mind; capability to use that capacity; availability of assistance of Wali and Wakil etc.---Because of such an importance, its registration as formal 'Nikahnama', not mere notarization, was essential, in the interest of concerned individual, family and society, which left no room for admission of mere oral assertion or averment, particularly by one party when the other party vehemently denied it.

(c) Administration of justice---

----Cardinal principle of dispensation of justice that prolongation of litigation must of necessity be avoided to bring harmony and peace in the society, should be kept in view while resolving technical lacuna and removing complications, so that no excess should be committed.

Muhammad Sharif Janjua for Appellant.

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

Date of hearing: 4th March, 2011.

2012 P Cr. L J 530

[Faderal Shariat Court]

Before Shahzado Shaikh and Rizwan Ali Dodani, JJ

MUHAMMAD ASLAM---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No. 86-L of 2010, decided on 9th December, 2011.

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

----S. 12---Penal Code (XLV of 1860), S.377---Kidnapping or abduction in order to subject person to unnatural lust---Sodomy---Appreciation of evidence---F.I.R. of daylight occurrence was lodged by the complainant promptly on the same day giving details of occurrence in which accused was nominated---Victim who was star witness in the case, was minor at the relevant time, but proved to be competent witness to record his statement, gave full details regarding the occurrence---Victim was cross-examined at length, but his veracity could not be shattered; his statement was fully corroborated by complainant---Solitary statement of the minor victim was sufficient to prove the allegation as same was consistent, corroborated and trustworthy and fully supported by medical evidence---Report of Chemical Examiner was positive and doctor after observing report of Chemical Examiner, opined that act of sodomy was committed---Substantive piece of evidence i.e. medical evidence, report of Chemical Examiner, statement of victim himself which was supported by the complainant, were sufficient to connect accused with the crime, without any shadow of doubt---Accused could not produce any corroboration/evidence to prove his plea that he had falsely been involved in the case and that prosecution witnesses had deposed against him being related inter se---Counsel for accused could not produce any thing in writing regarding compromise allegedly arrived at between the parties; even otherwise offence was not compoundable---No mitigating circumstance could be pointed out which could warrant reduction of sentence of the accused---Trial Court had rightly convicted and sentenced accused, in circumstances.

Abdul Wadood and another v. The State 1986 SCMR 1947 distinguished.

Waqar-ul-Islam and another v. State 1997 PCr.LJ 1107 and 2006 SCMR 1609 rel.

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

----S. 12---Penal Code (XLV of 1860), Ss.359 & 362---'Kidnapping', and 'abduction'---Distinction---In kidnapping a minor person or person of unsound mind was removed from the lawful guardianship; and was simply taken away, or enticed to go away with the kidnapper---In abduction, force, compulsion or deceitful means were used---In kidnapping the consent of the kidnapped was immaterial, while in abduction consent would condone the offence---In kidnapping intent of accused was irrelevant, but in abduction, it was the all important question---Kidnapping was not a continuous offence, but in abduction whenever an abductee was removed from one place to another, it was an offence.

AIR 1943 Lah. 227 and 35 Cr.LJ 1386 rel.

Ch. Muhammad Qasim for Appellant.

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

Complainant in person.

Date of hearing: 9th December, 2011.

2012 P Cr. L J 599

[Federal Shariat Court]

Before Shahzado Shaikh and Rizwan Ali Dodani, JJ

Mst. NADIA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 20/L of 2011 in Criminal Appeal No.110/L of 2010, decided on 6th October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 426---Bail, refusal of---Counsel for accused sought bail of appellant on the ground that female appellant was in jail along with an innocent infant, aged nine months, who was born in jail---Counsel. for appellant had raised the point that there were no proper facilities and conditions suitable to keep the child in jail---Report of the Jail Superintendent indicated that right from the day of birth, the child, which had become nine months and was with her mother/appellant, was being provided regular medical care, regular feed etc. as a necessary welfare measure according to the law---Counsel for appellant had pressed mainly on the ground of compassion, which, in fact, had already been shown by the Trial Court. by not awarding the death sentence to the lady convict/appellant---Statement of appellant under S.342, Cr. P. C. revealed that she had been to jail earlier also, which had shown that she was habitual and a desperado for the society---No statutory provision, or compassion, or any precedent in congruence on all fours to support the bail plea being available, bail was refused.

Mst. Sitara Bibi v. The State 2003 PCr.LJ 402; Mst. Nusrat v. The State 1996 SCMR 973; Liaquat and another v. The State 1999 PCr.LJ 1004 and PLD 1971 SC 617 distinguished.

Rana Shakeel Ahmed. Khan for Appellant.

Muhammad Ishaq, D.P.O. for the State.

2012 P Cr. L J 739

[Federal Shariat Court]

Before Syed Afzal Haider and Shahzado Shaikh, JJ

MUHAMMAD ASLAM alias SAIF and another---Appellants

Versus

THE STATE--Respondent

Jail Criminal Appeal No. 153/I of 2009, decided on 13th January, 2011.

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

---Ss. 10 & 11---Zina or zina-bil-jabr liable to Tazir and kidnapping---Appreciation of evidence---Kidnapping---Basic ingredient---No element of delay existed in reporting the offence of rape---Element of force was not essential in the case of kidnapping---Basic ingredient of the offence of kidnapping was the element of taking or enticing a minor out of the keeping of lawful guardian of minor without consent---Victim girls in the present case, were found to be not only under 16 years of age, but had also not attained puberty, while accused were grown up persons---Suck was indeed cruel debauchery---Rape in case having been committed within four walls of a secure building, it was futile to link for ocular evidence which should corroborate the allegations of the victim---Medical evidence duly supported by the report of Chemical Examiner, was sufficient corroboration of the factum of sexual intercourse which account had been provided by the two victims in the case---No evidence pi enmity existed between accused and the complainant party to impel the latter to involve accused person falsely and thereby risk the future of minor girls---Rape was committed with minor girls and accused had violated the trust and confidence reposed in them by the parents of the minor victims---Accused, did not deserve any concession or sympathy---Argument that the site plan of the places of occurrence was not made, did not demolish the direct evidence of rape---Site plan was not a substantive piece of evidence---Factum of zina-bil-jabr by accused persons with two minors having been proved by the prosecution, verdict of the Trial Court had been maintained, in circumstances.

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

----S. 367---Contents of judgment---Object of S. 367, Cr.P.C.-General trend was that while writing judgment, the provisions of S.367, Cr.P.C., were not observed---According to section 367, Cr.P.C., a judgment must contain the points for determination, the decision thereon and the reasons for the decision---Provisions of S.367, Cr.P.C. were mandatory; and were intended to constitute the substance as distinguished from mere form of judgment---Section 367, Cr.P.C. was based upon good and substantial ground of public policy which was fundamental to the administration of justice---Object of that section was to let accused and Appellate Court know that the Trial Judge applied his mind on the ingredients of the offence, gravamen of the charge as well as the related points requiring judicial determination.

Abdul Rasheed Munshi and 3 others v. The State PLD 1967 SC 498; Ashiq Hussain and another v The State and 2 others 2003 SCMR 698; Abdul Sattar v. Sher Amjad and another 2004 YLR 580 and Sahab Khan and 4 others v. The State and others 1997 SCMR 871 rel

Anees Muhammad Shahzad for Appellants.

Ch. Muhammad Sarwar Sidhu for the State.

Date of hearing: 13th January, 201'1.

2012 P Cr. L J 816

[Federal Shariat Court]

Before Shahzado Shaikh and Rizwan Ali Dodani, JJ

RASHID MINHAS---Appellant

versus

MUHAMMAD FAYYAZ and another---Respondents

Criminal Appeal No.50/I of 2006, decided on 17th February, 2012.

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

----S. 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Criminal Procedure Code (V of 1898), S. 417(2-A)---Unnatural offence/sodomy---Appeal against acquittal---Appreciation of evidence---Boy aged about 13/14 years was subjected to unnatural lust by accused---Victim/complainant lodged report on the same day when occurrence took place in which accused was nominated with specific role and he gave details of occurrence on each angle---Doctor on receipt of report of Chemical Examiner, which was positive regarding swabs and piece of Shalwar, opined that act of sodomy was committed with the victim---Medico-legal report positively supported by the Chemical Examiner's Report and as confirmed by the doctor, the act of penetration was proved---Counsel for accused raised a point that grouping of semen and DNA test was necessary in the case to establish the offence---Victim had all along nominated only one accused---In order to take benefit of matching or grouping, the defence had neither raised that point at the trial nor made any request in that regard---Victim, who gave complete details before the Trial Court regarding offence committed with him by accused, was put to lengthy cross-examination, but he remained unshaken---Deposition of the minor victim was noticeably innocent, trustworthy and confidence-inspiring during his entire statement and cross-examination---Defence had not raised any question to the effect that offence was not committed---Reliance of the defence on photographs and on the cross-examination of the minor victim on the photographed facts and features, would not de-link accused from the scene of occurrence---Accused took plea that the victim was a boy of easy virtue; alleging that the victim was of loose morals and was promiscuous---Weakness of victim, even if found in fact, could not provide a licence to the lustful---Such plea, otherwise had not been proved by accused---Statement of victim seemed to be natural as he had no enmity or ill-will against accused to falsely involve him in the case---Accused could not prove his plea of alibi---No conflict existed between medical evidence and evidence of the victim---Statement of the victim was fully corroborated by the circumstances leading to the offence of sodomy---Trial Court while acquitting accused had not properly appraised the evidence, which had caused miscarriage of justice---Acquittal of accused, in the circumstances of the case, being not based on sound principles of criminal administration of justice, was not sustainable which was set aside and accused was convicted and sentenced to 7 years' R.I. with fine of Rs.20,000.

Mansab Ali v. The State 1988 SCMR 1614; Azhar Iqbal and 2 others v. The State 1997 PCr.LJ 1500; Saleem Khan and others v. The State and others 2001 PCr.LJ 503; Muhammad Riaz v. Muhammad Zaman and Ishtiaq PLD 2005 SC 484; Akbar Hussain v. The State 1999 PCr.LJ 686; Ghulam Sikandar and another v. Mamarz Khan and others PLD 1985 SC 11; Waqar-ul-Islam and another v. The State 1997 PCr.LJ 1107; Muhammad Shafique alias Chuma and others v. The State 2008 P.Cr.LJ 958; Muhammad Shahid Sahil v. The State and another 2010 PCr.LJ FSC 215; Tahir Khan v. The State 2011 SCMR 646; Muhammad Shakeel v. The State 2011 SCMR 917 and The State and others v. Abdul Khaliq and others PLD 2011 SC 554 ref.

2006 SCMR 1106; AIR 1943 Lah. 227 and 35 Cr.LJ 1386rel.

(b) Criminal trial---

----Alibi, plea of---Forms and ingredients---Forms of alibi are: To make an excuse for oneself; to make an excuse for (another)---Alibi, had two basic ingredients; a defence by an accused person that he was elsewhere at the time the crime in question was committed; and the evidence given to prove that---Alibi, was a plea of defence and its reasonable evidence, both---Alibi was a form of defence, whereby a defendant attempted through reasonable evidence to prove that he was elsewhere when the crime in question was committed---Fact of an accused having been elsewhere, when the crime in question was committed had to be proved in reasonable legal terms---In legal usage and paralance it would offer an explanation to avoid blame or justify action; as an excuse and was not merely personal excuse, but entailed reasonable satisfactory evidence.

PLD 1982 SC 429; PLD 1964 Pesh. 288 and 1983 SCMR 697 ref.

(c) Criminal trial---

----Alibi and burden of proof---Scope---Accused was required only to produce evidence to show his presence where he stated to be at the time of occurrence to raise reasonable possibility of his presence at that place---Prosecution must prove its case beyond reasonable doubt---Accused was supposed to prove plea of alibi as when accused took a plea of alibi he must produce some cogent evidence which could not reasonably be discarded---Burden of proving the plea of alibi was on the person who would take up that plea---Person raising the plea of alibi, must, discharge the burden by proving it.

PLD 1982 SC 429; PLD 1964 Pesh. 288 and 1983 SCMR 697 rel.

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

----S. 377---Criminal Procedure Code (V of 1898), S. 417(2-A)---Appeal against acquittal---Scope---Generally appeal against acquittal had narrow scope of interference in the finding of Trial Court, but once admitted, same had to be decided on its own merits, and where judgment of acquittal was based on misreading and/or non-reading of evidence; or it was speculative---Solitary statement of victim was sufficient to prove the charge when it was fully corroborated by Medico-legal Report and Chemical Examiner's Report.

1973 SCMR 635 rel.

M. Siddique Awan for Appellant.

Agha Muhammad Ali Khan for Respondents.

Ahmad Raza Gilani, Additional Prosecutor-General for the State.

Date of hearing: 17th February, 2012.

2012 P Cr. L J 930

[Federal Shariat Court]

Before Shahzado Shaikh, A.C.J., Allama Dr. Fida Muhammad Khan and Rizwan Ali Dodani, JJ

QAISAR MEHMOOD and another---Appellants

versus

THE STATE---Respondent

Jail Criminal Appeal No.282/I of 2004, Criminal Appeal No.342/L of 2004 and Criminal Murder Reference No.17/I of 2004, decided on 20th September, 2011.

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

----Ss. 302(b) & 364-A---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(4)---Qatl-e-amd, kidnapping and abducting a person under the age of fourteen, zina bil-jabr liable to tazir---Appreciation of evidence---F.I.R. was lodged promptly, wherein the complainant had nominated both accused---Accused had made confession before prosecution witnesses regarding commission of rape with deceased and her murder---Such extra judicial confession though was a weak type of evidence, but it could be considered as a corroborative piece of evidence in the presence of other material evidence available on record in the shape of last seen evidence and medical evidence---Contention of counsel for accused that Investigating Officer had not fulfilled the requirements of S.103, Cr.P.C., and no independent witnesses were associated, was of no value because in such cases no other person except blood relations would step forward to discharge the duty of being a witness---Incident was an unseen occurrence, but the prosecution had proved its case through circumstantial evidence by producing last seen evidence, extra judicial confession, coupled with medical evidence in line with each other, and no link was missing in the chain---Recoveries effected on the disclosures of accused, also connected accused with the crime---No conflict was noticed between the medical evidence and the ocular account and same fully corroborated each other---No possibility existed for prosecution for false implication of accused persons and fabricating the case against accused persons---Contradictions pointed out by the counsel for accused persons were generally trivial and technical---Witnesses were cross-examined at length, but their veracity could not be shattered---Counsel for accused had not been able to create any dent in the prosecution evidence---Mens rea was quite apparent in behaviour of the accused, which became manifest in actus reus or actual commission of acts of their evidence---Last seen occasion and plea of the victim, recovery of the dead body of the deceased, the manner in which it was recovered, proved that the offence was committed in the adjacent place---Report of Chemical Examiner was positive, which stated that the swabs were stained with semen---Lady Doctor also opined that deceased was subjected to sexual intercourse---Case having fully been proved against accused persons, appeals filed by accused against their conviction and sentence, were dismissed, in circumstances.

(b) Mens Rea & Actus Reus---

----Concept.

Mens rea refers to criminal intent. Intent refers to state of mind accompanying an act, especially a forbidden act. This may necessitate examination of motive also. Motive is the inducement to do some act, whereas in contradistinction, intent is the mental resolution or determination to do it; i.e., when the intent to do an act becomes so strong even to violate the law, motive becomes immaterial. Therefore, mens rea, i.e., criminal intent or the intent to commit an actus reus may actualize or realize it without even justification, excuse, or other defence, as an impulse.

Mens Rea [literally, guilty mind], is a culpable mental state, especially when it involves intent or knowledge of wrongdoing, forming an element of a criminal offence. Every criminal act in law has three stages:--

• preparation,

• taking steps for its commission, and

• causative effects i.e., consummation/commission of criminal act.

Above all criminal intent/mens rea was the most essential and integral part of a crime. In every crime it was a matter of high importance that intent and act must, both, concur to constitute crime. An intention though could be inferred from the act of an accused, but manifestations must provide clear link therewith. Principles are that conduct of the accused during the whole transaction and his presence at the spot should be bona fide, faultless and devoid of elements of mens rea or actus reus.

"Criminal intent" or "guilty mind" creates responsibility for the crime.

Actus reus, (Latin "guilty act", or "guilty deed"] is a wrongful act that makes up the physical action of a crime; a wrongful deed that comprises physical components of a crime; generally it must be coupled with mens rea to establish criminal liability; a forbidden act. i)

From above it follows that all crimes (wrongful deed, or guilty act, or deed of crime), have two elements:--

• the intent to commit the act (mens rea),
• performing the act (actus reus).

Similarly an attempt to commit a criminal act, also, has two necessary elements:--

• Mens rea, followed by

• actus reus.

On careful analysis it would be seen that action or conduct which is a constituent element of a crime, as opposed to the mental state of the accused, e.g., even failure to prevent death may constitute an actus reus of manslaughter.

The actus reus for kidnapping would include the taking of or taking over unlawful control over child/infant's person or to remove him/her from guardianship. [p. 942] C

2005 PCr.LJ 22; 2009 SCMR 929 and Black's Dictionary of Law ref.

Syed Saeed Ahmed Tirmizi and Zulfiqar Ali Khan Saifi for Appellants (in Jail Criminal Appeal No.282/I of 2004).

Malik Ghulam Hussain Awan for Appellant (in Criminal Appeal No.342/L of 2004).

Azhar Hameed Chaudhry for the Complainant.

Ch. Muhammad Ishaq, Deputy Prosecutor-General for the State.

Date of hearing: 20th September, 2011.

2012 P Cr. L J 1442

[Federal Shariat Court]

Before Sheikh Ahmad Farooq, J

SOHRAB KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.37-I of 2010, decided on 31st May, 2012.

Penal Code (XLV of 1860)---

----S. 392---Qanun-e-Shahadat (10 of 1984), Art. 40---Robbery---Appreciation of evidence--- Discovery--- Connotation--- Delay in registration of the F.I.R. occurred due to Police who started investigation prior to the lodging of the F.I.R.---Delay in registration of the F.I.R. had been explained, complainant could not be made to suffer for any illegal act of the Police Officers; as they could not have started investigation prior to registration of the case as envisaged under S.154, Cr.P.C.---Complainant had mentioned in the F.I.R. names of accused and his co-accused stating therein that accused was empty-handed, while co-accused was armed with Kalashnikov at the time of occurrence---Complainant while appearing as prosecution witness had deposed that accused snatched his motorcycle at gun point---No plausible explanation was available for the substitution of accused with co-accused by the complainant---Alleged recovery of the motorcycle was not effected from the physical possession of accused---Confession made by accused regarding his guilt in the custody of the Police and in the absence of a Magistrate; and without strong corroborative evidence, was of no legal value---Extra-judicial confession was a very weak type of evidence and no conviction could be recorded on it without any independent corroboration---Material discrepancies existed in the statements of prosecution witnesses regarding the place of recovery of the motorcycle---Not only the recovery of the motorcycle on the disclosure of accused was highly doubtful, but was violation of S.103, Cr.P.C.---Recovery of motorcycle alone, that too from the house of co-accused on the alleged disclosure of accused, was not sufficient to record his conviction, particularly when the ocular account of the occurrence was not confidence-inspiring---Alleged recovery of motorcycle on the pointation of accused could not be described as discovery under Art.40 of Qanun-e-Shahadat, 1984 as same was not recovered from any hidden place; and could have been easily recovered in the normal course of pointation of accused---Prosecution witnesses, particularly the complainant had made improvements and substituted the name of one of the accused, without any explanation at all---Material discrepancies and contradictions existed in the statements of prosecution witnesses and the ocular account of the occurrence was not believable---Impugned judgment was not sustainable in the eyes of law---Prosecution having failed to prove the charge against accused beyond reasonable shadow of doubt, judgment passed by Trial Court whereby accused was convicted and sentenced under S.392, P.P.C., was set aside, and accused was acquitted of the charge and was released, in circumstances.

2010 SCMR 1604; Sabir Ali alias Fauji v. The State 2011 SCMR 563 and 2012 SCMR 440 ref.

Sabir Ali alias Fauji v. The State 2011 SCMR 563; 2012 SCMR 440 and 2010 SCMR 1604 rel.

Jahanzaib Khan Jadoon for Appellant.

Syed Pervaiz Akhtar, D.P.-G. Balochistan for the State.

Date of hearing: 31st May, 2012.

2012 P Cr. L J 1491

[Federal Shariat Court]

Before Muhammad Jehangir Arshad, J

SHABBIR AHMED---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.6/Q of 2011, decided on 17th May, 2012.

Penal Code (XLV of 1860)---

----Ss.392, 511 & 34---Constitution of Pakistan, Arts.203-C & 203-D---Robbery, attempt to commit offences and common intention---Appeal to Federal Shariat Court---Competency---Accused filed appeal before High Court against his conviction and sentence recorded by the Trial Court, but same was returned by Single Judge of High Court holding that appeal was competent before Federal Shariat Court---Validity---F.I.R. in the case was though originally registered under S.17(2) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, but District Attorney, being the competent authority, submitted the challan under S.392, P.P.C. only---Trial Court, on receipt of the challan, framed charge under S.392, P.P.C. only and on the conclusion of the trial, found accused guilty of offences under Ss.392, 511 & 34, P.P.C. and convicted and sentenced accused under said sections of P.P.C.---Accused was neither charged with, nor tried under any provision of Hudood Laws, nor the challan was submitted under the Hudood Laws, appeal against conviction and sentence would not lie before Federal Shariat Court, but before the High Court---Appeal before Federal Shariat Court, was incompetent and office was directed to transfer the entire record of appeal to the High Court for decision, in circumstances.

2004 PCr.LJ 246 and PLD 2002 SC 534 rel.

Abdul Ghani Mashwani for Appellant.

Abdullah Kurd for the State.

Date of hearing: 17th May, 2012.

2012 P Cr. L J 1629

[Federal Shariat Court]

Before Shahzado Shaikh, J

NADEEM---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.3/L of 2011, decided on 2nd August, 2012.

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

----Ss. 10 & 16---Zina liable to Tazir, enticing or taking away or detaining a woman with criminal intent---Appreciation of evidence---Relations between accused and alleged victim existed due to which accused was able to take away the alleged victim from her house along with him---Alleged victim began travelling through different means of public transport and she remained with accused in different populated places, but nowhere she tried to raise hue and cry in order to attract the people for help---When she, along with accused was arrested after 17 days, she levelled allegations against the accused and stated that accused boarded her in a bus and took her to another city where he prepared fake Nikahnama---Alleged victim admitted that many passengers were present in the bus, but she did not raise any alarm to attract the people---Sister and mother of accused could not facilitate accused in such heinous offence---Factum of Nikah between accused and the victim was not established, but fact remained that victim of her own left her house and went away with the accused with her free consent; and it was thereafter when victim along with accused was arrested---Element of force was not proved from the evidence available on record, even the medical evidence did not show any mark of violence on the body of the victim---Ingredients of offence under S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, in circumstances, were not established; and at the most case would tend to fall under S.10(2) of the Ordinance---Sentence of ten years' R.I. awarded to accused was reduced to seven years' R.I.---Conviction of accused under S.16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentence of seven years with fine of Rs.50,000 was maintained---Both the sentences would run concurrently---Benefit of S.382-B, Cr.P.C. as extended by the Trial Court, would remain intact.

Khawar Mehmood for Appellant.

Malik Rab Nawaz for the Complainant.

Khurram Khan, D.P.-G. for the State.

Date of hearing: 2nd August, 2012.

2012 P Cr. L J 1699

[Federal Shariat Court]

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

SAID RASOOL---Appellant

Versus

SAJID and 3 others---Respondents

Criminal Appeal No.65/I of 2009, decided on 5th July, 2012.

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

----S. 17(4)---Criminal Procedure Code (V of 1898), S. 417(2-A)---Commission of murder in Haraabah---Appeal against acquittal---Appreciation of evidence---Occurrence which took place at night, was unseen and no direct evidence was, either that of murder of deceased or about his having lastly seen alive in the company of any one---Complainant, initially had nominated no one as accused in the F.I.R., but later on in supplementary statement he had nominated accused as the one who had committed the murder of his son---Person before whom accused had made extra judicial confession, was given up being unnecessary---Strong link which had provided information to the complainant was missing in the evidence---No reason was on record as to why said person was given up and declared unnecessary, while in circumstances he was the best available witness to provide support to the case of prosecution---Non-appearance of said person before the Trial Court had caused irreparable dent in the prosecution case---Other pieces of circumstantial evidence brought by the prosecution against accused person, was also doubtful---Empty of .30 bore pistol was recovered after ten days of occurrence---Report of Fire-arm Expert about the pistol and empty though was positive, but its evidentiary value, in circumstances, was not free from doubt---Confessional statement of accused though was recorded by an experienced Magistrate, but did not fulfil the requirement of law---Magistrate gave only 10 minutes to accused to think before making a confession while accused remained in Police custody for three days; in circumstances, sufficient time was required to be granted to accused before making a confession---No plausible explanation was available on record for the undue delay of three days caused in getting the judicial confession recorded---Judgment of acquittal of accused person, was well reasoned and based on right approach of the evidence brought on record and needed no interference by High Court---Impugned judgment was maintained and appeal against acquittal of accused persons, was dismissed.

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

----S. 164---Confession---Scope---Confession could be made basis for conviction, if it was actually made before a competent forum and was made voluntarily and truly--- Confession could also be made basis for conviction in Tazir cases, even if it was retracted at a later stage, provided that the other attending circumstances brought on record would corroborate the same in material particulars---Retracted judicial confession would be considered a tainted piece of evidence.

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

----S. 417(2-A)---Appeal against acquittal---Principles being observed for interference in an appeal against conviction were altogether different from those observed in an appeal against acquittal---Accused earned double presumption of innocence with the acquittal; first, initially that till found guilty, he had to be considered innocent; and second, that after his acquittal by Trial Court further confirmed the presumption of innocence---Judgment of acquittal delivered by the Trial Court, could not be interfered, unless it was found perverse; and the reasons advanced were artificial and ridiculous---Judgment of acquittal could only be interfered by the Appellate Court in exceptional cases where overwhelming conclusion, proof was available, which was a definite and utterly incompatible with the innocence of an accused, and grave miscarriage of justice was visible floating on record without any shadow of doubt.

Qari Abdul Rasheed for the Appellant/Complainant.

Masood-ur-Rehman Tanoli for Respondents.

Aziz-ur-Rehman for the State.

Date of hearing: 5th July, 2012.

2012 P Cr. L J 261

[Gilgit-Baltistan Chief Court]

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

MEHTAB KHAN, CHIEF EDITOR DAILY AUSAF and 6 others: In the matter of

Suo Motu Case No. 2 of 2011, decided on 17th September, 2011.

(a) Administration of justice---

----Confidence of public is real asset of courts of law, without which no court can discharge its pious responsibility.

State v. Khalid Masood and others PLD 1996 SC 42 rel

(b) Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 75---Contempt of Court Act (LXIV of 1976), Ss.3, 4 & 5---Contempt of Court---Scandalous news---Notices were issued to all concerned persons for publishing a scandalous news item in newspaper against superior judiciary of Gilgit-Baltistan---None of the respondents could give any satisfactory reply regarding publishing of the news---Effect---All respondents had committed contempt of court in terms of Ss. 3 and 4 of Contempt of Court Act, 1976, read with provision of Art 75 of Gilgit-Baltistan (Empowerment and Self Governance) Order, 2009, and were liable to be punished under S.5 of Contempt of Court Act, 1976---Respondent who was Chief Editor of the newspaper concerned, tendered written apology and also had thrown himself at the mercy of the court, therefore, Chief Court deemed the apology to be sincere as such and no punishment was imposed on him and pardon was extended to him---Another respondent, who was practising lawyer, was also pardoned, giving value and regard to the request made by member of the Bar and Young Lawyers Forum in open court coupled with his own unconditional apology, however, the Chief Court warned the respondent/lawyer to understand dignity of Courts and Bar and to follow professional ethics in future as being part of legal hierarchy---Remaining respondents were convicted and sentenced for six months simple imprisonment with fine of Rs.5,000 each---Contempt proceedings were disposed of accordingly.

PLD 1964 Dacca 254 rel

Assistant Advocate-General for the State

Manzoor Ahmad for Respondents Nos. 1 and 2

Amjad Hussain for Respondent No.4

Imran Hussain for Respondents Nos. 3 and 5

Johar Ali for Respondent No.6

Ms. Ehsan Ali and Javed Ahmed for Respondent No.7

Date of hearing: 17th September, 2011.

2012 P Cr. L J 1296

[Gilgit-Baltistan Chief Court]

Before Muzaffar Ali, J

AZHAR WALI---Petitioner

Versus

DEPUTY COMMISSIONER, GILGIT and 2 others---Respondents

Criminal Miscellaneous No.77 of 2008, decided 27th August, 2008.

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

----Ss.3(1) & 5---Criminal Procedure Code (V of 1898), 491 & 561-A---Quashing of proceedings---Release of detenu (accused) from illegal confinement---Authority to make detention order against a person---Scope---Extension of period of detention---Detenu was involved in different cases but was granted bail by the Trial Court---Administrative authorities detained the detenu as soon as he was enlarged on bail and his detention was extended on numerous occasions by the District Magistrate---Validity---Section 3(1) of West Pakistan Maintenance of Public Order Ordinance, 1960 clearly stated that the Government was empowered to make detention order of a person and it was the Government only which could direct arrest of a person, if it was believed that the circumstances stated in the provision existed---Section 3(3) of West Pakistan Maintenance of Public Order Ordinance, 1960, provided that a District Judge or any other Government servant specially authorized on the subject shall have the powers to refer the situation to the Government, if satisfied that the situation stated in the provision exists, to pass order of detention of a person responsible for the same---In the present case, all the orders for detention had been made by the District Magistrate but it was not shown as to how, when and by whom the District Judge had been bestowed with the powers of the Government---Government was bound under S.5 of West Pakistan Maintenance of Public Order Ordinance, 1960, to refer the case to the Board, if it desired to extend the detention and the Board was also bound to submit its report to the Government before expiry of the detention period---In the present case, neither any Board had been constituted by the Government nor the extension of detention period had been referred to any Board---Board was constituted and a Sessions Judge was appointed to the Board by the Chief Judge of the Chief Court during pendency of present petition---Said Sessions Judge had categorically stated that he could not be nominated as a member of the Board as he was not a Judge of the High Court but same Judge still extended the period of detention of the detenu---Constitution of the Board, in circumstances, was without lawful authority and coram non judice and the proceedings of the Board and report were void ab initio---Detenu had been detained for years without following the procedure provided in the West Pakistan Maintenance of Public Order Ordinance, 1960---No competent authority had issued the orders of detention of the detenu, rather administrative authorities had tried to make a mockery of the law--- Petition was accepted and detenu was released.

(b) Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 3---Security of person---Scope---Liberty of citizen was a divine right duly recognized and safeguarded by law---Liberty and freedom of a citizen could be curbed only with force of substantial material and with due course of law.

Ehsan Ali and Nafeeza for Petitioner.

Assistant Advocate-General for Respondents.

2012 P Cr. L J 657

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

GHAZALA PARVEEN---Petitioner

Versus

MUHAMMAD YAMEEN---Respondent

Criminal Miscellaneous-No.4 of 2012, decided on 21st January, 2012.

Criminal Procedure Code (V of 1898)---

----S. 491---Hebeas corpus petition---Custody. of minor---Petitioner had stated that out of her marriage with respondent a son was born and relations between the spouses having become strained, respondent took the minor son aged 14 months with him and went to his parents' house in a village---Petitioner being mother of minor son had sought his custody---Welfare of minor was always a paramount consideration which needed an inquiry based on facts and after providing a chance to both the parties to produce their evidence same could be determined---High Court had to look into the interim custody of the minor till the matter of custody was thoroughly considered and determined by the court of competent jurisdiction---In the present case, relations between the petitioner and respondent had become unpleasant, which had indicated that they could not live together cordially as husband and wife; it seemed just and proper, in circumstances, that the minor son be handed over to mother tilt final determination of the question of custody by the competent court---Matter of custody of minor, in such like situation, was to be settled promptly in accordance with law, considering the prevailing relations of the parties---Minor son was handed over to the, petitioner/mother, in circumstances.

Ch. Muhammad Aslam for Petitioner.

Respondent in person.

S.P. Bhimber, Kamran Ali in person.

2012 P Cr. L J 1159

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J. Munir Ahmed Chaudhary and M. Tabassum Aftab Alvi, JJ

ABID HUSSAIN---Applicant

Versus

THE STATE---Non-applicant

Reference No.48-A of 2012, decided on 18th April, 2012.

(a) Azad Jammu and Kashmir Ehtesab Bureau Act (I of 2001)---

----S. 4(n)---Azad Jammu and Kashmir Ehtesab Bureau (Adaptation and Extension) Act (IX of 2005), Ss. 1(3) & 2(2)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 19(3)---"Public office holders"---Definition---Scope---Contention that employees of bank did not fall within the definition of "public office holders" as defined under S.4(n) of the Azad Jammu and Kashmir Ehtesab Bureau Act, 2001---Validity---Perusal of S.4(n) of the Azad Jammu and Kashmir Ehtesab Bureau Act, 2001, and sections 1(3) and 2(2) of Azad Jammu and Kashmir Ehtesab Bureau (Adaptation and Extension) Act, 2005 showed that banks were not under the administrative control of the government or Azad Jammu and Kashmir Council rather the latter was vested with the authority to co-ordinate with the Government of Pakistan for conducting the business in Azad Jammu and Kashmir, therefore, despite the fact that Azad Jammu and Kashmir Ehtesab Bureau Act, 2001, had been adapted by the Council, the employees of the banks did not come within the definition of "holders of public office" as defined in S.4(n) of the Azad Jammu and Kashmir Ehtesab Bureau Act, 2001---Council had not adapted the definition of "public office holders" listed in S.4(n) of the Azad Jammu and Kashmir Ehtesab Bureau Act, 2001, rather it had limited the application of the said Act only to departments in the administrative control of the Azad Jammu and Kashmir Council and the departments which were for the time being under the administrative control of the Council.

Muhammad Shabbir and another v. Ehtesab Bureau Azad Kashmir and others Civil Appeal No.44 of 2011 ref.

United Bank Ltd. Employees Union through its President and General Secretary at Muzaffarabad and 4 others v. United Bank Limited through President and others 2000 PLC (C.S.) 930; Habib Bank Ltd. through Manager Kalyal Chakswari Branch, Mirpur v. Zulfiqar Ali Malik and 2 others 2000 PCr.LJ 967 and Genuine Rights Commission through Munir Ahmed Farooqi, Advocate and others v. Federal Government through Chief Secretary, Islamabad and 11 others PLD 2006 HC(AJ&K) 1 rel.

(b) Azad Jammu and Kashmir Ehtesab Bureau Act (I of 2001)---

----S. 4(n)---Azad Jammu and Kashmir Offences in Respect of Banks (Special Courts) Act, 1984, S. 4 & Sched. 1---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 19(3)---Cognizance of bank related offences by the Ehtesab Bureau---Scope---Contention that Ehtesab Bureau had no jurisdiction to investigate any offence which was covered under the Azad Jammu and Kashmir Offences in Respect of Banks (Special Courts) Act, 1984---Validity---Offences relating to the banks could only be tried by the Judge Banks (Offences) Special Court under the provisions contained in the Azad Jammu and Kashmir Offences in Respect of Banks (Special Courts) Act, 1984, and the Ehtesab Bureau had no jurisdiction to investigate and try the offences relating to the banks except banks functioning under the administrative control of the Azad Jammu and Kashmir Government or the Council.

Sadaqat Hussain Raja for Applicant.

Sardar Zaffar Iqbal Azad, DCP for the Ehtesab Bureau.

Ch. Shaukat Aziz, Advocate for the Government.

Syed Shahid Bahar, Advocate for the Bank.

Sardar K.D. Khan, Advocate for Muhammad Anwar Khan, Muhammad Munir Khan and Malik Naeem.

Muhammad Idrees Mughal as Amicus Curiae.

2012 P Cr. L J 1381

[High Court (AJ&K)]

Before Sardar Muhammad Nawaz Khan, C.J. and Ghulam Mustafa Mughal, J

ANJUM SHAHBAZ---Appellant

Versus

EHTESAB BUREAU through Chairman/Chief Prosecutor Ehtesab Bureau, Muzaffarabad---Respondent

Criminal Appeal No.4 of 2005, decided on 18th January, 2008.

(a) Estoppel---

----Jurisdiction---Estoppel not to defeat a statute affecting jurisdiction of a court---Principles.

The principle of estoppel cannot be allowed to defeat the provisions of a statute or enactment which affects the jurisdiction of a Court. A party cannot by its admission or previous conduct, confer jurisdiction on a Court where none exists. The doctrine of approbate and reprobate, or consent or waiver, which would apply to the conduct of the parties, is not applicable to the case of a statute or an order passed without jurisdiction; and when there is a complete lack of jurisdiction, no consent or acquiescence can cure the illegality. An order which is not an order of a Court of competent jurisdiction can never be pleaded as an estoppel.

Muhammad Suleman's case PLD 1982 SC(AJ&K) 64 ref.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 42-E---Azad Jammu and Kashmir Council---Jurisdictional competency---Executive authority of AJK Council not to be exercised by the functionaries or officers of the Government of Pakistan.

Messrs Jabeer Hotel's case 2011 PLC (C.S.) 11 ref.

(c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 31(4)---Electricity and taxation thereof---Legislative and executive jurisdiction of Azad Jammu and Kashmir Government defined.

Nafees Baker's case PLD 1985 SC (AJ&K) 47 ref.

(d) Azad Jammu and Kashmir Ehtesab Bureau Act (I of 2007)---

----S. 11---Penal Code (XLV of 1860), Ss.409, 467, 468 & 471---Prevention of Corruption Act (II of 1947), S.5(2)---Misappropriation, forgery---Jurisdiction of Ehtesab Court convicting the accused had been challenged---Accused had allegedly misappropriated an amount of the School of Overseas Pakistani Foundation---Employees of the School were neither in the service of Azad Kashmir Government or AJK Council, nor they were dealing with the affairs of AJK Government or Council while serving in the said school, which had been created under a Federal Law---Overseas Pakistani Foundation was an outcome of Federal Legislature and it had established different institutions working in Pakistan and Azad Kashmir---Employees of such institutions were neither in service of Azad Jammu and Kashmir Government nor the Council---Though the school had been registered with the education department of Azad Jammu and Kashmir, yet said registration had no legal backing---Person not in the service of Azad Kashmir Government or the Council, nor dealing with the affairs of AJ&K, if he commits an offence, he can be investigated and tried under normal penal laws, but not under the Ehtesab Act, which is meant for a specified class of persons mentioned therein---Azad Jammu and Kashmir Ehtesab Act, 2007 deals with the persons in the service of AJ&K Government or the Council or holders of Public Office as provided under it or their associates---All persons not included in the said category, if would commit an offence, they would be liable for the consequences under normal penal laws---Accused appellant who was Accounts Assistant in the school, if found guilty of misappropriation or forgery could be punished under normal penal laws provided under the Penal Code, but his prosecution by sending him to face trial before Ehtesab Court under the AJ&K Ehtesab Act, 2007 was not justified under the law---Reference by the Ehtesab Bureau and the impugned order, therefore, were without jurisdiction and the same were quashed, in circumstances.

Muhammad Suleman's case PLD 1982 SC(AJ&K) 64; Messrs Jabeer Hotel's case 2001 PLC (C.S.) 11; Nafees Baker's case PLD 1995 SC(AJ&K) 47 and Sheikh Manzer Masood's case 1981 PCr.LJ 661 ref.

Ch. Muhammad Azam Khan for Appellant.

Sheikh Masood Iqbal, DCP for Ehtesab Bureau.

2012 P Cr. L J 1563

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

Professor MUHAMMAD HASSAN---Appellant

Versus

MUHAMMAD RASHEED and 3 others---Respondents

Criminal Appeal No.4 of 2011, decided on 19th May, 2012.

Penal Code (XLV of 1860---

----S. 341/34---Criminal Procedure Code (V of 1898), S. 417(2-A)---Wrongful restraint---Appeal against acquittal---Six prosecution witnesses had been incorporated in the report submitted before the Trial Court, but statement of only one witness was recorded who was an eye-witness---Trial Court ignoring the remaining witnesses passed order under appeal---Two female nominated accused were discharged under S.169, Cr.P.C., but said facts could not be made basis for acquittal of remaining accused persons in the offences which were proved during investigation---Trial Court was duty bound to record the statements of remaining witnesses and thereafter to pass any appropriate order---Prosecution was not given an appropriate chance to produce its witnesses---If one eye-witness had contradicted or even denied the story of prosecution, accused could not be acquitted on the basis of the statement of the said single witness---Trial Court had no sufficient evidence on record to justify the order of acquittal and the same had resulted in miscarriage of justice---Such like order was of no legal effect---Accused persons could be convicted in the offences dropped by the Police during investigation, if those offences were proved later on by the remaining important witnesses in their statements---Order of acquittal which was not sustainable at all, was set aside and case was remanded to the Trial Court with a direction to dispose of the case after recording evidence of remaining prosecution witnesses giving chance to accused to produce evidence in defence, if advisable.

2000 PCr.LJ 752 and 2010 MLD 1595 ref.

Malik Habib-Ullah Zia and Ch. Abdul Razzaq, Additional Advocate-General for Appellant.

Raja Shehnaz Khan for Respondents.

2012 P Cr. L J 1598

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

ATTA-UR-REHMAN---Petitioner

Versus

ANJUM JAVAID and 9 others---Respondents

Civil Miscellaneous No.5 of 2011, decided on 16th May, 2012.

Criminal Procedure Code (V of 1898)---

----S. 561-A--- Penal Code (XLV of 1860), Ss.430/353/186/147/ 148/149---Mischief by injury to work of irrigation or by wrongfully diverting water, assault or criminal force to deter public servant from discharging of his duty, obstructing public servant in discharging of public functions, rioting, rioting armed with deadly weapons, unlawful assembly---Petition seeking direction to S.H.O. for lodging an F.I.R. against accused and his co-accused who were Bank Officials regarding issuance of a certificate said to be false and forged---No proof was available on record that said certificate was false or forged---Certificate in question was issued about one year prior to the filing of petition and no reason had been mentioned regarding said considerable delay---Petitioner had a remedy to file a private complaint against said respondents/accused persons, but he did not avail the same---Petitioner could also approach Sessions Judge regarding the same redressal, but he could not do so---Matter being pending before the court of competent jurisdiction, no direction could be issued regarding issuance of a certificate, which had not been proved false and forged.

Mehmood Akhtar Qureshi for Petitioner.

Sardar Ghulam Mustafa Khan and Ch. Muhammad Rafique Shaheen, Additional Advocate-General for Respondents.

Date of hearing: 16th May, 2012.

2012 P Cr. L J 1811

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

ZAHEER IQBAL---Petitioner

versus

SENIOR SUPERINTENDENT OF POLICE, DISTRICT MIRPUR, AK and 2 others---Respondents

Writ Petition No.797 of 2012, decided on 7th July, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 173 & 169-Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44--- Writ Petition--- Report of Police Officer---Scope---Contention of the petitioner was that he was arrested in a criminal case, and later on he was released and then was exonerated by the Police under S.169, Cr.P.C., direction of SSP to SHO to submit supplementary challan before the concerned court was contrary to law---Validity---No statutory prohibition existed in the Code of Criminal Procedure for the Police not to embark on a fresh investigation of the case after the conclusion of the first; and the submission of the final report, whatever the defects in the first investigation or the flaws in the final report given in the wake of it, that might subsequently be deleted---First investigation could be utterly unsatisfactory for many reasons, that could be due to non-availability of evidence, or the successful induction of false evidence during the investigation, or the reason could be the corrupt behaviour of the Police Officers concerned---Police as an agency of the State, should be as much interested as any other agency concerned in the administration of justice, to find out the truth in respect of a crime and lay the whole facts bare for determination of the competent Tribunal as honestly and correctly as possible---Statutory functions of the Police and the courts in that respect were complementary to each other and did not overlap---Previous investigation having yielded certain results, should not act as a hurdle or deterrent for the Police in reaching the truth, if additional facts and additional circumstances brought to light helped in its discovery---Magistrate did not have powers to direct further investigation by the Police after he himself had taken cognizance of the case and launched an inquiry or trial; but there was no bar for the Police to pursue its own investigations and submit their results to the court to find the guilt or innocence of accused---Investigation by the Police after submission of a final report under S.173, Cr.P.C., was not barred and nor the Police was not competent to file, if it was so disposed, a second report as a result, if its subsequent investigation into the case.

Farrukh Ahmad Chughtai v. Muhammad Imtiaz and 6 others PLJ(sic) SC (AJ&K) 1; Suleman v. Fateh Naseeb and others 1995 PCr.LJ 1543 and Muhammad Khan v. Inspector-General of Police, Punjab Civil Secretariat, Lahore and 2 others PLD 1978 Lah. 731 rel.

Sadaqat Hussain Raja for Petitioner.

Sardar M.R. Khan, Additional Advocate-General for Respondents.

Date of hearing: 4th July, 2012.

2012 P Cr. L J 94

[Islamabad]

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

ZIA MEHMOOD alias MAZHAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.514/B of 2011, decided on 29th September, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.316, 148 & 149---Qatl-e-Shibh-e-amd---Bail, refusal of---Accused was named in the F.I.R. attributing specific role of kicking and delivering fist blows to the deceased---Offence with which accused had been charged, fell within the ambit of prohibitory clause of S.497, Cr.P.C.; and in such like cases the rule was jail and not bail---No ill-will or ulterior motive on the part of the complainant or the local police had been shown by accused for his false implication---Prosecution witnesses had stood by their statements made before the police fully implicating accused with the commission of alleged offence---Accused had remained a proclaimed offender for a period of more than three months---Precious life of a young person, who was the hope of his family, was lost in the occurrence at the spot---Ipse dixit of the Police, was not binding upon the court---Only tentative assessment was required to decide the bail application and deeper appreciation of evidence could not be appreciated at bail stage---Prima facie sufficient incriminating material was available on the record to connect accused with the commission of the alleged offence---Bail application of accused was dismissed, in circumstances.

Shafqat Abbas v. The State 2005 YLR 1588; Muhammad Shafiq alias Chhara and another v. The State 2007 MLD 736; Mst. Qudrat Bibi v. Muhammad Iqbal and others 2003 SCMR 68; Abdul Rehman v. Ali Sher and others 2000 PCr.LJ 33; Falak Sher and 3 others v. The State 2001 PCr.LJ 954; Safdar Jameel v. The State 2003 PCr.LJ 110; Muhammad Waqas v. The State 2003 SCMR 1370 and Sher Ali alias Sheri v. The State 1998 SCMR 190 ref.

Abdul Rehman v. Ali Sher and others 2000 PCr.LJ 33 rel.

Ch. Imran Raza Chadhar and Ch. Saif Ullah Warriach for Petitioner.

Javed Iqbal, Standing Counsel assisted by Raja Rizwan Abbasi for the Complainant.

A. Waheed S.-I.

2012 P Cr. L J 577

[Islamabad]

Before Iqbal Hameed-ur-Rahman, CJ

AMEEN SAQIB---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 553-B of 2011, decided on 20th October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 409, 419 & 109---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust by public servant, cheating by personation, abetment---Bail, refusal of---Accused was alleged to have joined his co-accused in misappropriation, purchasing and selling copies of question papers, kept secret for entry test in the University---Accused had been nominated in F.I.R. and allegation of corruption had been levelled against him---Case was registered after accused and his co-accused were found involved in the crime---Accused was charged with S.409, P.P. C and S.5(2) of Prevention of Corruption Act, 1947 which being non-bailable fell within the prohibitory clause of S.497, Cr. P. C---Prosecution witnesses stood by their statements made before police under S.161, Cr.P.0 and accused had failed to show any mala fides or ulterior motive on the part of the prosecution for his false implication in the case---Case of accused was distinguishable from that of co-accused, who had already been granted bail---Accused had made extra judicial confession twice, once before the Inquiry Board of the University and then before the police by submitting an affidavit in his own handwriting and signature---Conduct of accused and co-accused had not only caused huge financial loss to the University but also impaired .the reputation and prestige of the Institution causing thousands of students from all over the country to suffer---Granting bail to accused would have amounted to encouraging such heinous crimes in the society---Post-arrest bail of accused was dismissed accordingly.

Muhammad Yaqub v The State 1998 PCr.LJ 638; Muhammad Musa v The State and 2 others 1999 PCr.LJ 1260 and Muhammad Boota r The State 2005 YLR 1339 ref

Shafqat Munir Malik for Petitioner

Abdul Rashid Awan for the Complainant

Kh. Javed Iqbal, Standing Counsel and Nazar Muhammad, Inspector for the State.

2012 P Cr. L 603

[Islamabad]

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

MUHAMMAD RIAZ KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 645-B of 2011, decided on 22nd November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 409, 419 & 109---Prevention of Corruption Act (II of 1947), S.5(2)---Punjab Universities and Boards of Intermediate and Secondary Education, Malpractices Act (XXXII of 1950), S.3---Criminal breach of trust by public servant, cheating by personation, abetment---Bail, refusal of---Accused along with his co-accused was alleged to have sold question papers of Entry Examination of University after receiving substantial amount of money---Accused was specifically nominated in the F.I.R. with a specific role and was booked in the case after proper inquiry---Accused was charged with an offence which fell within the prohibitory clause of S.497, Cr. P. C and in such like cases refusal of bait was a rule and acceptance was an exception---Accused being involved in a heinous offence had failed to point out any special feature of the case which might have brought hiscase in any of the exceptions and he along with co-accused had not only caused a loss of more than Rs.40 million to the University but also caused mental torture_ and agony for the students and their parents---Accused's actions led to the cancellation of Entry Test which caused valuable educational year of students to lapse and also affected the repute of the University---Nothing on record suggested that the involvement of accused was due to mala fides or ill-will on part of the complainant or the police---Co-accused had been released on bail but case of accused was distinguishable from theirs'---Punjab Universities and Boards of Intermediate and Secondary Education, Malpractices Act 1950, was applicable to the Province of Punjab but counsel for accused had failed to satisfy that said Act still held the field---Tentative assessment of material available on record showed that accused was connected with the commission of the offence and there was sufficient incriminating material against him---Bail petition of accused was dismissed in circumstances.

2002 PCr.LJ 168 ref.

Syed Intekhab Hussain Shah for Petitioner.

Malik Ishtiaq 'Ahmad Standing Counsel.

Abdur Rashid Awan for the Complainant. M. Khan Marwar S.I.

2012 P Cr. LJ731

[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.

Constitution of Pakistan---

----Art. 199---Penal Code (XLV of 1860), S. 406---Constitutional petition---Criminal breach of trust---Quashing of F.I.R.---Complainant was tenant of petitioner, against whom eviction order had been passed by Rent Controller---Petitioner sought quashing of F.I.R. on the ground that F.I.R. was registered with mala fide intention to harass the petitioner---Validity---Contentions of complainant were nowhere accepted in civil litigation and he did not personally issue any cheque towards payment of sale and his admitted position as tenant had been decided by civil courts---F.I.R. after 4-1/2 years of alleged incident and after six months of filing of civil suit could not have been lodged---Allegations did not seem to be justified on the basis of record---High Court under Constitutional jurisdiction had ample powers to quash proceedings of a criminal case, if no offence was made out---Dispute between the parties was entirely of civil nature, which was converted into criminal proceedings with ulterior motives---Where exceptional circumstances exist, the powers under Art. 199 of the Constitution or under S.561-A, Cr.P.C. could be exercised---High Court quashed the F.I.R. registered against petitioner---Petition was allowed in circumstances.

2002 PCr.LJ 218; 2000 SCMR 122; 2008 SCMR 76; 2006 SCMR 276; PLD 1997 SC 275 and 2005 PCr.LJ 1681 ref

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.

2012 P Cr. L J 746

[Islamabad]

Before Shaukat Aziz Siddiqui, J

AFRAZ MEHMOOD---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No. 682-B of 2011, decided on 30th November, 2011.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/109---Qatl-e-amd, abetment---Bail, grant of---Further inquiry---Alleged poisoning of deceased---Delay in lodging F. I.R.---Doubtful conduct of complainant and police---Inordinate delay of three months in lodging the F.I.R. which had not been reasonably explained and conduct of police and complainant was dubious---Accused remained on physical remand for a period spread over ten days but nothing incriminating was recovered from him, to connect him with the commission of the alleged offence---Mentioning accused's name after due deliberations spread over a period of three months, made the case of the prosecution highly doubtful---Absconsion of co-accused (brothers of accused) could not be made basis of withholding the concession of bail when case of accused clearly fell within ambit of S.497(2), Cr. P. C. ---Commencement of trial of accused could not come in the way of exercising discretion, to grant bail when case of accused required further inquiry---Bail petition of accused was allowed and he was admitted to bail.

PLD 1989 SC 585 rel.

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

----S. 497(2)--- Penal Code (XLV of 1860), Ss. 302/109---Qatl-e-amd, abetment---Bail---Abscondence---Abscondence of family members of accused---Abscondence of any member of the family of the accused cannot be made basis of withholding the concession of bail when case of accused clearly falls within the ambit of S.497(2), Cr. P. C.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/109---Qatl-e-amd, abetment---Bail---Further inquiry---Commencement of trial, effect of---Commencement of trial does not come in the way of exercising discretion, to grant bail when accused person successfully brings his case within the ambit of further inquiry.

PLD 1989 SC 585 rel.

Sabah Mohyuddin Khan for Petitioner.

Khawaja Javed Iqbal, Standing counsel and Javed Tanoli, A.S.-I. with record for the State.

Arif Mehmood for Respondent No.2.

2012 P Cr. L J 833

[Islamabad]

Before Shaukat Aziz Siddiqui and Muhammad Anwar Khan Kasi, JJ

TARIQ MABOOD---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.328 of 2009, decided on 16th February, 2012.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4---Possession and trafficking of narcotics---Appreciation of evidence---Quantity of narcotic to be dispatched for analysis---Scope---"Reasonable quantity"---Interpretation---Trial court had convicted the accused under S.9(c) of the Control of Narcotic Substances Act, 1997---Contention of accused that out of five packets allegedly recovered from him containing 5 kgs of heroin, only 1 gram of heroin from each packet was sent for analysis, which was violation of law and was not sufficient quantity---Validity---According to Rule 4 of Control of Narcotics Substances (Government Analysts) Rules, 2001, "reasonable quantity" of narcotic was required to be dispatched to the nearest testing laboratory---Plain interpretation of reasonable quantity was that a quantity by which analysis may be carried out to report that subject quantity was narcotic---Authority which carried out the chemical examination did not object to the quantity of narcotic as being either insufficient or unreasonable---Accused had made no effort to call the chemical examiner as witness---Entire case record showed that accused had never challenged the fact that recovered substance was heroin---Technical grounds and scientific frictions could not be made basis to extend any benefit to the accused---Accused had not established any mala fide against the complainant-police officials---Trial Court had passed the impugned judgment in accordance with the evidence and material available on file---Appeal of accused was dismissed and judgment of Trial Court was upheld.

PLD 1949 Lah. 175; PLD 2004 SC 856; 2007 PCr.LJ 1984; 2008 SCMR 1991; 2008 YLR 2232; 2006 YLR 2826 and PLD 1959 Pesh. 176 distinguished.

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

----R. 4---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Quantity of narcotic to be dispatched for analysis---Scope and Interpretation---According to Rule 4 of Control of Narcotic Substances (Government Analysts) Rules, 2001, "reasonable quantity" of narcotic was required to be dispatched to the nearest testing laboratory---Plain interpretation of reasonable quantity was that a quantity by which analysis may be carried out to report that subject quantity was narcotic.

Noor Alam Khan for Appellant.

Khawaja Javed Iqbal Standing Counsel for the State.

Date of hearing: 19th January, 2012.

2012 P Cr. L J 866

[Islamabad]

Before Shaukat Aziz Siddiqui, J

WAQAR SHAH---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 592-B of 2011, decided on 9th December, 2011.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 396 & 34---Qatl-e-amd, dacoity with murder---Bail, grant of---Further inquiry---Accused was declared innocent by the police and was nominated after a month of the occurrence on the supplementary examination of witness, who failed to mention any source or reference on the basis of which he implicated the accused---Although accused was correctly picked in the identification parade, but same was of no use to the prosecution as F.I.R. provided no description of the accused and no role was ascribed to him---Commencement of trial could not be made basis of refusal of bail, when accused had succeeded in bringing his case within the ambit of further inquiry as envisaged under S.497(2), Cr.P.C.---Bail petition of accused was allowed and he was released on bail.

Mehmood Ahmad and 3 others v. The State 1999 SCMR 127 ref.

Abid Ali alias Ali v. The State 2011 SCMR 161 and Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 rel.

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

----S. 497(2)---Qanun-e-Shahadat (10 of 1984), Art. 22---Penal Code (XLV of 1860), Ss. 302, 396 & 34---Identification parade---Evidentiary value when no role ascribed to accused---Effect---Identification parade is weakest type of evidence and it becomes a waste paper when no role is ascribed to the accused---Bail petition of accused was allowed and he was released on bail.

Mehmood Ahmad and 3 others v. The State 1999 SCMR 127 ref.

Mrs. Haroon-ur-Rashid and Raja Waqar Ahmad for Petitioner.

Khawaja Javed Iqbal and M. Hanif A.S.-I. with Record for the State.

2012 P Cr. L J 1075

[Islamabad]

Before Shaukat Aziz Siddiqui, J

Sheikh MUHAMMAD TAHIR---Petitioner

versus

THE STATE and 2 others---Respondents

Writ Petition No.3519 of 2011, decided on 30th March, 2012.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court being constitutional institution, was savior and protector of the rights of citizens---Article 199 of the Constitution had showered mandate upon the High Court to issue writs of all kinds---Said Article had made it clear that High Court had discretion to declare any act of officials to be without lawful authority---High Court being custodian of the fundamental rights of the citizens, was under obligation to shield against any invasion made on the guaranteed constitutional rights and protect the subject from discrimination, exploitation, colourable exercise of authority, bolted actions and mala fide proceedings.

2005 SCMR 594 rel.

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

----S. 561-A---Penal Code (XLV of 1860), Ss.420, 468 & 471/109---Prevention of Corruption Act (II of 1947), S.5(2)---Cheating, forgery for purpose of cheating, using as genuine a forged document, abetment and corruption---Quashing of F.I.R.---Scope---Discretion of exercising the authority of the quashment of F.I.R., could be exercised where registration of F.I.R. by Police/Authority had no jurisdiction to register the same; where from the admitted contents of F.I.R., no offence was constituted and where contents of F.I.R. showed that matter was purely of civil nature---Doors for exercise of such discretion had not been closed for extraordinary circumstances---Applicant/accused, in the present case, had been made scape-goat and real culprits had been either let free or had been exonerated by the Investigating authorities---No evidence was available to the effect that applicant acted for any pecuniary benefit---Investigating Officer had confirmed that Federal Secretary who was part of Selection Board had also been exonerated---Entire accusation against applicant was tainted with mala fide, ulterior motives and simply to protect the appointing authority, before whom summary was submitted---Registration of case to the extent of applicant/accused on face of it was tainted with mala fide, without jurisdiction and even if F.I.R. was allowed to hold the field, no probability existed of the conviction of accused---Impugned F.I.R. to the extent of accused was declared to be illegal, unlawful, unprecedented, sham, result of colourable exercise of authority, an abuse of process of law, tainted with mala fide, ulterior motives, a device of exploitation without jurisdiction and outcome of arbitrary exercise of authority, and was quashed, in circumstances.

2005 SCMR 594; PLD 2007 SC 48; 2009 SCMR 141; PLD 2002 SC 969; 2006 SCMR 276 and 1999 MLD 2239 ref.

1993 SCMR 71; 2000 SCMR 122; 2012 SCMR 94; 1996 SCMR 186; 2006 SCMR 276 and 2011 SCMR 1937 rel.

Sana Ullah Zahid and Sajid Mehmood Shahd for Petitioner.

Tariq Mehmood Jehangiri, D.A.-G. and Khalid Naeem, AD (Law) FIA for the State.

Ghazandfar Abbas, Inspector FIA.

2012 P Cr. L J 1168

[Islamabad]

Before Muhammad Anwar Khan Kasi and Shaukat Aziz Siddiqui, JJ

AZHAR ALI KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.323 of 2007, decided on 13th February, 2012.

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

----S. 9(c)--- Possession of narcotics--- Appreciation of evidence---Sentence, reduction in---Trial Court had convicted the accused (appellant) under S.9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to life imprisonment and imposed a fine of Rs.50,000---Contentions of accused were that sample collected from the allegedly recovered substance was highly insufficient, and that accused was a young offender and had no criminal history, therefore, he was entitled to reduction in his sentence---Validity---Statement of investigating officer was silent as to from how many sleepers, the sample was taken---Presumption, in circumstances, was that sample was not taken out from each sleeper, therefore, it was not possible to hold that the same were rods of charas or otherwise---Accused was a young offender and had no criminal history and appeared to be a carrier of the narcotic---Accused was behind bars for the last about seven years, which meant that he had served the major portion of his sentence---Sentence of accused was reduced to one already undergone by him but the amount of fine i.e. R.50,000 was to remain intact---Appeal was disposed of, accordingly.

2000 PCr.LJ 760; 2003 YLR 1901; PLD 2003 Kar. 230; 2008 SCMR 991 and PLD 2004 Pesh. 59 ref.

Criminal Appeal No.565 of 2009 and Muhammad Hashim v. The State PLD 2004 SC 856 rel.

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

----S. 9(c)--- Possession of narcotics--- Sample taken from recovered narcotic for chemical analysis---Principles---Where any narcotic substance is allegedly recovered while contained in different packets, wrappers or container of any kind or in the shape of separate cakes, slabs or any other individual and separate physical form, it is necessary that a separate sample is to be taken from every separate packet, wrapper or container and from every separate cake, slab or other form for chemical analysis and if that is not done then only that quantity of narcotic substance is to be considered against accused person from which a sample was taken and tested with positive results.

Criminal Appeal No.565 of 2009 quoted.

Raja Rizwan Abbasi for Appellant.

Qazi Rafee ud Din Babar, D.A.-G. for the State.

Date of hearing: 25th January, 2012.

2012 P Cr. L J 1777

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

PERVEZ AKHTAR RAJA---Petitioner

versus

THE STATE and another---Respondents

Cr. M. No.202-M of 2011, decided on 18th April, 2012.

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

----Ss. 249-A & 561-A---Penal Code (XLV of 1860), Ss. 503 & 506---Criminal intimidation---Quashing of proceedings---Allegations against the accused (petitioner) were that he threatened to take possession of property belonging to complainant-company; that he threatened the company regarding his connections with influential persons, and that he forcibly tried to enter the company premises---Police substituted Ss.452 and 511, P.P.C. with 5.506, P.P.C. at time of submission of challan---Contentions of accused were that there was no evidence available on record to connect hint with the commission of the offence alleged---Validity---Police had deleted Ss.452 and 511, P.P.C., at the time of submission of final report under 5.173, Cr.P.C., on the basis of statements of prosecution witnesses---Regarding S.506, P.P.C., neither any evidence was available on record nor same transpired from the story narrated in the F.I.R.---Ingredients of criminal intimidation defined in S.503, P.P.C., were not available in the present case---No evidence was available on record, which could form basis for seeking conviction of accused---Continuation of proceedings before Trial Court would not only be a futility but also an abuse of process of law--Proceedings against accused were quashed---Petition was allowed accordingly.

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

--Ss. 249-A, 265-K & 561-A---Quashing of proceedings---Scope---On dismissal of application under 5.249-A or 265-K, Cr.P.C., revision was to be preferred to the next higher forum, however exceptionally quashment of proceedings could be directly invoked under S.561-A, Cr. P. C. ---If the application under S. 249-A or 265-K, Cr.P.C., was allowed and accused was acquitted, filing of acquittal appeal under S.417, Cr.P.C. was required.

PLD 2004 SC 298 rel.

1995 MLD 511; 1987 'SCMR 7371; 1988 CLC 33; PLD 1993 Quetta 113 and PLD 2006 SC 298 ref.

Muhammad Ilyas Siddiqui for Petitioner.

Dr. Sagheer Ahmed Rana for Respondent No.2 along with Respondent in person.

Zafar Ranjha, A.S.-I.

2012 P Cr. L J 1806

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

TASHFEEN QAYYUM---Appellant

versus

MAGISTRATE (SADDAR) ICT and 2 others---Respondents

Intra-Court Appeal No.86 of 2012, decided on 27th February, 2012.

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

----S. 145---Dispute concerning land likely to cause breach of peace---Matter pending before civil court---Jurisdiction of Illaqa Magistrate under S.145, Cr.P.C.---Scope---Dispute between parties over post of Chief Executive Officer of company---Appellant, who claimed to be Chief Executive Officer of company was removed by other directors of the company from his post---Appellant filed suit for declaration and permanent injunction before civil court to restrain the directors from removing him---Illaqa Magistrate during pendency of civil proceedings, took proceedings under 5.145, Cr.P.C. and sealed office of the company on grounds that same was likely to cause breach of peace--Validity---Apparently there was no dispute over possession of company office but dispute between parties was over post of Chief Executive Officer' of company, in respect of which majority shareholders had already removed the appellant from the said post and directors, by adopting the legal course---Where a dispute in respect of any issue had been regulated by civil court, the matter. would fall outside the jurisdiction of Illaqa Magistrate under 5.145, Cr.P.C. Interference by Illaqa Magistrate, under such circumstances, was nullity in the eyes of law-- Dispute over post of Chief Executive Officer of company, in the present case, was already pending adjudication before civil court, hence it was for the said court to decide such issue and not the Magistrate while assuming jurisdiction under S.145, Cr.P.C.-Intra-court appeal was dismissed, in circumstances.

Bashir Ahmad v. Messrs Roots School Network through Administrator/owner and others 2011 SCMR 290 and Abdul Majeed v. Noor Muhammad and 2 others PLD 2006 Lah. 649 ref.

1998 PCr.LJ 1610 distinguished.

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

----S. 145---Dispute concerning land likely to cause breach of peace---Matter pending before civil court---Jurisdiction of Illaqa Magistrate under S.145, Cr.P.C.---Scope-:-Where a dispute in respect of any issue had been regulated by civil court, the matter would fall outside the jurisdiction of Illaqa Magistrate under 5.145, Cr.P.C.-Interference by Illaqa Magistrate, under such circumstances, was nullity in the eyes of law.

Raja Inam Ameen Minhas for Appellant.

2012 P Cr. L J 1817

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

ANJUM MUBASHAR MUGHAL---Petitioner

versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE, ISLAMABAD and another---Respondents

Writ Petition No. 1503 of 2010, heard on 8th May, 2012.

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

----Ss. 3 & 4---Criminal Procedure Code (V of 1898), Ss. 190 & 193---Complaint under S.3 of Illegal Dispossession Act, 2005---Cognizance by Court of Session---Scope---Section 4 of Illegal Dispossession Act, 2005, provided that cognizance was to be taken directly by the Sessions Court on a complaint, therefore, there was no need to comply with the procedure laid down in S.190, Cr.P.C., by making complaint before Magistrate directly, who after entertaining the same was required to transmit same to the Court of Session, if offence was cognizable by such court---When 5.193, Cr.P.C. itself provided direct cognizance for a complaint, it could not create hurdle in the way of Sessions Court for taking cognizance.

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

----S. 3---Criminal Procedure Code (V of 1898), S. 265-K---Constitution of Pakistan, Art. 199---Constitutional petition---Power of Court of Session under 5.265-K, Cr.P.C.---Scope--Complaint filed by complainant (petitioner) under S.3 of Illegal Dispossession Act, 2005---Accused filed application under S.265-K, Cr.P.C., seeking his acquittal---Court of Session dismissed complaint under Illegal Dispossession Act, 2005, while exercising powers under S.265-K, Cr.P.C.---Legality---Order of Court of Session by which it dismissed the complaint was illegal as the court did not have the power to do the same under S.265-K, Cr.P.C.---Order of Trial Court was set aside and case was remanded to Trial Court for decision afresh in accordance with the law---Constitutional petition was allowed, accordingly.

PLD 2008 Lah. 358; PLD 2008 Lah. 59 and 2010 PCr.LJ 422 ref.

Sher Afzal and Muhammad Saleem Baluch for Petitioner.

Syed Muhammad Tayyab for Respondents.

Date of hearing: 8th May, 2012.

2012 P Cr. L J 1851

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

CHRISTOPHER OFROA alias MARK WILLIAM---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.172-B of 2012, decided on 24th April, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Electronic Transactions Ordinance (LI of 2002), Ss. 36 & 37---Penal Code (XLV of 1860), Ss. 419/420/468/471/109/34--- Foreigners Act (XXXI of 1946), Ss. 14 & 14A---Qanun-e-Shahadat (10 of 1984), Arts. 73, 74 & 75---Violation of privacy of information, damage to information system, etc., cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment, illegal entry into Pakistan---Bail, refusal of--;Proof of document by primary evidence--- Scope--- Repetition of offence alleged---Effect---E-mail scam---Accused, who was a foreign national, was alleged to have perpetuated a fraud over e-mail and cheated the complainant by extracting money from him---Accused had allegedly cheated the complainant, therefore, S.420, P.P.C., applied, however Ss.468 and 471, P.P.C, did not seem to have been substantiated from the general complexion of the prosecution case---Section 419, P.P.C. was attracted to the case in view of the statement of the complainant and prosecution witness---Validity of his permission to stay in Pakistan had expired at the time of arrest of accused--- Accused could not produce his original visa, but produced copies with the contention that his passport had been taken away by the investigation authority, but question arose as to how he produced a copy of the visa if his passport had been taken away---Copy of visa could not be believed as a genuine document being secondary piece of evidence, which otherwise was required to be proved through primary evidence as envisaged by S.73 of Qanun-e-Shahadat, 1984---Valid entry of accused in Pakistan was doubtful, therefore, S.14 of Foreigners Act, 1946, was fully attracted---Accused had repeated the offence alleged, he was denied bail, in circumstances.

2010 PCr.LJ 769; 1986 PCr.LJ 774; PLD 2011 SC 554 and 2002 SCMR 1009 ref.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 rel.

Raja Rizwan Abbasi for Petitioner.

Tariq Bilal, Legal Advisor NR3C/FIA, Muhammad Raza, S. NR3C/FIA for the State.

Mukhtar Ahmed Baloch for the Complainant.

2012 P Cr. L J 1942

[Islamabad]

Before Iqbal Hameed-ur-Rehman, C.J. and Muhammad Azim Khan Afridi, J

MUHAMMAD YAQOOB---Appellant

Versus

ALLAH RAKHA and 4 others---Respondents

Criminal Appeal No.365 of 2008, decided on 23rd May, 2012.

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

----Ss. 302/34---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-e-amd, common intention--- Appeal against acquittal---Appreciation of evidence---Charge against accused person, was murder of the deceased by way of hanging---Said form of murder of deceased by strangulation neither found support from the record of the case nor the complainant at the very first instance, at the time of lodging the report had stated so, where he had described the said murder as homicide by hanging---Subsequent changed stance of the complainant, a turn over from the original position, could not be legally taken into account---Fracture of 'cervical vertebra' could not necessarily occur in each and every case of hanging as apart from body weight, other factors, such as jerk and jolt, span between starting and suspension point, pliability of ligature, could also play vital role in the process---Fracture of collar bone or its dislocation, could not be considered essential prerequisites for defining a death emerging from hanging---Other circumstantial evidence, such as alleged writing of the deceased on a tissue paper box, in which deceased had written that accused persons had no hand in her death, they could not be blamed for her death, and that her husband was innocent---Assertion of the complainant in F.I.R., writing of the deceased, and medical evidence, did not substantiate the allegations of the complainant that his daughter was murdered by way of strangulation---Alleged strained relations between the family members of the husband of the deceased, and that of the deceased had not been satisfactorily established to have played any invasion and culpable role in the alleged murder of the deceased---In the absence of any evidence, direct or circumstantial, establishing the presence of accused persons in the house of accused/husband of the deceased, the alleged motive, could not be of any significance, so far as the alleged murder of the deceased was concerned---Circumstantial evidence, collected by prosecution during investigation and produced before the Trial Court, during trial, did not establish beyond shadow of doubts the charge of strangulation, nor connected any of accused persons with the alleged crime of murder of the deceased by strangulation---Prosecution had failed to produce any tangible and confidence inspiring evidence---Trial Court, while acquitting accused persons, had taken into account and appreciated each and every aspect of the case in its true perspective, and acquittal of accused persons had been ordered by the Trial Court by offering cogent reasons and correctly disbelieving the version of prosecution---Trial Court, while doing so, had committed no illegality or irregularity warranting interference in appeal---Judgment of acquittal was maintained and appeal against acquittal was dismissed, in circumstances.

(b) Criminal trial---

----Circumstantial evidence---Prerequisites for believing circumstantial evidence, would, inter alia, include non-existence of direct evidence and availability of indirect evidence establishing link or chain or nexus between the crime and the criminal---Events not creating or developing continuous and subsisting chain and connection between the crime and person accused for the crime would stay, and qualify as unsubstantiated circumstantial evidence---Unproven or uncorroborated circumstantial evidence, could not be made basis for recording conviction---Jurisprudential rule of benefit of doubt or requirement of proof of facts beyond any shadow of doubt, was to be given due weight in cases of circumstantial evidence, and the said rule could not be legally ignored, overlooked or by-passed while assessing culpability on the basis of circumstantial evidence.

2007 SCMR 1427 and 2010 PCr.LJ 1027 ref.

Muhammad Kamran Noon for Appellant.

Moazzam Ali Sheikh for Respondents Nos.1 to 4.

Malik Ishtiaq Ahmad, Standing counsel for Respondent No.5.

Date of hearing: 23rd May, 2012.

2012 P Cr. L J 1

[Sindh]

Before Gulzar Ahmed and Muhammad Ali Mazhar, JJ

MUHAMMAD HASEEB KHAN and another---Applicants

Versus

THE STATE through FIA CBC, Karachi---Respondent

Criminal Bail Applications Nos. 1028 and 1142 of 2011, decided on 3rd November, 2011.

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

----S. 497---Penal Code (XLV of 1860), Ss.409, 420, 468, 471 & 477-A/34---Prevention of Corruption Act (II of 1947), S.5(2)---Offences in Respect of Bank (Special Courts) Ordinance (IX of 1984), S.5(6)---Criminal breach of trust by public servant, cheating, forgery, using as genuine a forged document, falsification of account and corruption---Bail, refusal of---Amount of income tax and withholding tax on motor vehicle tax, collected by Excise and Taxation Department, which was received during the day by accused persons, was to be transferred to National Bank by the same evening at about 6/7 p.m.---Out of total amount to be deposited in the Bank, a huge amount of Rs.261,411,407 had been embezzled by the accused persons---Both accused had been implicated in the F.I.R. with specific role---Accused persons had not denied signing the computer generated receipts and 71 paid challans, amount of which had never been transferred to the Government exchequer---Recovery was made from accused person, which was mentioned in the challan---Court granted bail to one of co-accused, who had not misappropriated the amount, whereas, a specific role had been assigned to both accused in the F.I.R.---Accused, in circumstances, could not claim bail on the ground of rule of consistency---Reasonable grounds existed to believe that both accused had committed the offence as alleged against them and they had caused loss to the Government exchequer---Bail application filed by accused was dismissed, in circumstances.

Chaudhry Shujat Hussain v. The State 1995 SCMR 1249; Wasi Ahmed v. The State 2010 YLR 2299; Inamul Haque v. The State 2000 YLR 289 and Tariq Hashmi v. The State 2010 YLR 563 distinguished.

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

----S. 497(2)---Bail, grant or refusal of---Principles---Further inquiry---Every hypothetical question, which could be managed, would not make the same a case of further inquiry, simply for the reason that same could be answered by the Trial Court subsequently after evaluation of evidence---Accused, in order to be released on bail, must show that no reasonable grounds were on record to believe that he had committed the offence as alleged against him---Mere possibility of further inquiry, which existed almost in every criminal case, was no ground for treating the matter as one under subsection (2) of S.497, Cr.P.C.---While deciding the bail application, the court need not to enter upon detail appreciation and examining of evidence---Question, however, could not be decided in vacuum and the court had to look at the material available to form a tentative opinion, as to whether accused was prima facie connected with the offence--- Bail was refused.

Ms. Ismat Mehdi for Applicants (in Criminal Bail Application No.1028 of 2011).

Shahab Sarki for Applicants (in Criminal Bail Application No.1142 of 2011).

Khaleeq Ahmed for the Complainant.

Ashiq Raza, D.A.-G.

Date of hearing: 3rd November, 2011.

2012 P Cr. L J 52

[Sindh]

Before Shahid Anwar Bajwa, J

Haji ABDUL GHAFFAR---Applicant

Versus

HABIB ISMAIL and 2 others---Respondents

Criminal Revision Application No. S-81 of 2010, decided on 21st September, 2011.

(a) Interpretation of statutes---

----Preamble---Scope.

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

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

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

Shahabuddin v. The State PLD 2010 SC 725 ref.

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

----S. 3--- Illegal dispossession--- Appreciation of evidence--- Key question to be considered was that whether there was any illegal dispossession---Complainant, in the present case, in his complaint had clearly stated that he had handed over the possession to respondent who was in possession of the plot and who under a contract with the complainant had started construction thereon and he had handed over the possession to the other respondent who had never dispossessed the complainant---Respondent who had been given lawful possession by complainant who might or might not have handed over such possession lawfully to the other respondent, but in any case he could not be accused of having illegally dispossessed the complainant---Civil litigation for title of the property in question was also still going on between the parties, which even existed at the time when complainant had filed the complaint---Complainant, therefore, should have waited for the result of said civil litigation---Revision was dismissed in circumstances.

Shahabuddin v. The State PLD 2010 SC 725; Shahabuddin v. The State 2010 PCr.LJ 422; Nabi Bux and 6 others v. Ghulam Muhammad and others PLD 2008 Kar. 518; Muhammad Akram and 9 others v. Muhammad Yousuf and another 2009 SCMR 1066; Muhammad Ikhlaq and another v. Mst. Hamida Naqvi and another 2010 MLD 523; Malik Muhammad Akram v. Muhammad Kahir and another 2010 PCr.LJ 666; Mumtaz Hussain v. Dr. Nasir Khan 2010 SCMR 1254; Bashir v. Additional Sessions Judge, Faisalabad PLD 2010 SC 661; Nazir Ahmed v. Asif and 4 others PLD 2008 Kar. 94; Muhammad alias Mahamand v. Rana Abdul Qayoom, Additional Sessions Judge, Kamalia 2007 MLD 815; Jan Pervez v. Haji Fazal Hussain and 6 others PLD 2007 Pesh. 179; Muhammad Bux v. Additional Sessions Judge and others 2010 PCr.LJ 268; Zahida Nasreen v. Additional Sessions Judge, Sahiwal and 2 others 2010 PCr.LJ 575; Waqar Ali and others v. The State through Prosecutor-General/Advocate-General, Peshawar and others PLD 2011 SC 181; Zahoor Ahmed and 5 others v. The State and 3 others PLD 2007 Lah. 231 and Act. Lord Normand in Attorney-General v. H.R.H. Prince Earnest Augustus of Hanover (1957) A.C. 436 ref.

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

----S. 3---Prevention of illegal dispossession of property---Scope and purpose---All cases of illegal occupants without any distinction are covered by the Illegal Dispossession Act, 2005, except the cases which were already pending before any other forum---Purpose of Illegal Dispossession Act, 2005 which is a special law is to protect the right of possession of lawful owner or occupier and not to perpetuate the possession of illegal occupants.

Muhammad Akram and 9 others v. Muhammad Yousuf and another 2009 SCMR 1066 ref.

Ghulam Shabir Dayo for Applicant.

Bhajandas Tejwani for Respondent No.1.

Abdul Qadir Shaikh for Respondent No.2.

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

Date of hearing: 22nd August, 2011.

2012 P Cr. L J 70

[Sindh]

Before Gulzar Ahmed and Salman Hamid, JJ

MUHAMMAD YASEEN alias BABA LADLA alias BABA---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 962 of 2011, decided on 7th October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.386/34---Anti-Terrorism Act (XXVII of 1997), S.7---Extortion by putting a person in fear of death or grievous hurt, act of terrorism---Bail, grant of---Further inquiry---Allegation of the complainant was that he received calls from two mobile phones from the accused who demanded amount and in failing to make such payment threats of dire consequences were extended---Complainant in his statement under S.161, Cr.P.C. had come forth verbatim as in his complaint and added that he gave tainted currency notes to his servant---Mention of said part of the statement was missing in F.I.R.---Amount in question though was pre-arranged, but numericals of the currency notes were not noted that could enable the complainant or the Police to connect accused with the same in the event of the recovery; however recovery was stated to have been made from accused---Statement by the servant of the complainant had shown that the complainant was receiving calls from accused on regular basis---Such state of affairs was neither patent from the contents of the F.I.R. nor from the statement of the complainant---Record showed that two numbers from which the complainant had received calls belonged to accused, but it was not yet clear that such two numbers were part of those five sims allegedly recovered from accused---Inconsistencies were found as to the number of sims recovered---Recovery of sims by itself created doubts, which needed further inquiry and same was the position with the recovery of currency notes---Case of accused requiring further inquiry, he was enlarged on bail, in circumstances.

Makhdoom Ejaz Ahmed for Applicant.

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

2012 P Cr. L J 76

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

Sardar AMJAD ALI KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No. D-171 and M.A. No.1422 of 2011, decided on 19th October, 2011.

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

----Ss. 249-A & 561-A---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possessing and trafficking of narcotics---Order dismissing application for acquittal--- Application for quashing of order---Application had been filed against the order passed by Special Judge in Special case, whereby he dismissed the application filed by the applicant under S.249-A, Cr.P.C.---In the present case entire evidence had been concluded and matter was pending only for recording of statement of accused under S.342, Cr.P.C.; at that stage it would not be appropriate by High Court to embark upon or to consider the evidence, when the matter was likely to be concluded soon by appropriate forum---Arguments or pleas raised in the application could easily be taken and argued before the Trial Court, whether any evidence was available against applicant or not---Said function was to be exercised by the Trial Court---Case was of 6000 Kgs Hashish which could not be ignored simply; and the case of prosecution could not be strangulated or stifled at that stage---Trial Court in the impugned order had provided gist of the evidence and names of the prosecution witnesses---All prosecution witnesses had been examined and matter was fixed for recording of statement of accused---No doubt, application under S.249-A, Cr.P.C., could be moved at any stage of the case and the court could acquit person, if it considered that the charge was groundless or that there was no probability of accused being convicted of any offence---Party could move for acquittal at any stage of proceedings; and no legal bar or requirement existed that application for acquittal could only be moved before the Trial Court after recording of evidence of witnesses---Criteria for exercising the powers by High Court under S.561-A, Cr.P.C., was that injustice complained of by the applicant must be clear, grave in nature and tangible and, if another remedy was available, then inherent jurisdiction was not to be invoked---Special or peculiar facts and circumstances of the case, could not warrant filing of application under S.249-A, Cr.P.C. at a stage when the entire prosecution evidence had been recorded and the case was fixed for recording of statement of accused under S.342, Cr.P.C.

Sajid Mutmaz v. Basharat 2006 SCMR 231; Muhammad Aslam (Amir Aslam) v. DPO, Rawalpindi 2009 SCMR 141; Miraj Khan v. Gul Ahmed 2000 SCMR 122; The State v. Raja Abdul Rehman 2005 SCMR 1544 and Bashir Ahmad v. Zafar-ul-Islam PLD 2004 SC 298 distinguished.

PLD 1992 SC 353 rel.

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

----S. 561-A---Inherent powers of High Court---Scope---Using the powers 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 path was always pregnant with risk of being led astray---Such a deviation could never be ordinarily advisable---Extraordinary circumstances must always be shown to exist before a choice could be made to abandon the regular course and instead to follow an exceptional route---Mere claim of innocence by an accused, could never be considered sufficient to justify such a departure, because if that was permitted then every accused would opt to file the prosecution and to have his guilt or innocence determined under S.561-A, Cr.P.C.---Result would be decision of criminal trial in a summary and cursory manner, rendering the trial as a superfluous activity, and the Trial Court as a surplusage---Such was never and could never had been the intention of law maker in adding S.561-A, Cr.P.C. to the Code.

Bashir Ahmad v. Zafar-ul-Islam PLD 2004 SC 298 rel.

Zuber Ahmed Rajput for Applicant.

Shyam Lal, Assistant Prosecutor-General for the State.

Date of hearing: 4th October, 2011.

2012 P Cr. L J 98

[Sindh]

Before Aqeel Ahmed Abbasi, J

GHUFRAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 163 of 2010, decided on 14th September, 2011.

Penal Code (XLV of 1860)---

----Ss. 468 & 471---Foreigners Act (XXXI of 1946), Ss.3(a)(b), 13 & 14---Forgery for the purpose of cheating, using as genuine forged document---Appreciation of evidence---Accused had been charged under S.14 of the Foreigners Act, 1946 on the allegation that he having entered into Pakistan on a forged Passport, he was not citizen of Pakistan---No evidence had been produced by the prosecution against accused, which could substantiate that he was not Pakistani and was staying in Pakistan illegally---Trial Court did not even get the identity cards of accused and his parents from NADRA--- NADRA had verified that identity cards issued to accused and his parents were all genuine---Computerized identity cards, issued in favour of accused and his parents had admittedly not been cancelled by NADRA---Trial Court had also based its judgment on the solitary evidence of Investigating Officer and the alleged confessional statement of accused before the FIA authorities---Confession before Police had no evidentiary value in the eyes of law and the conviction could not be based on the solitary alleged confession before the FIA, particularly when it had been denied by accused---Prosecution having failed to discharge the onus to substantiate the charges against accused under S.14 of the Foreigners Act, 1946, conviction of accused under said section was set aside, whereas the conviction under Ss.468 & 471, P.P.C., was maintained---While maintaining such conviction, sentence was reduced to one already undergone as mentioned in Jail Roll.

Salim Bhallo v. Learned Court of District and Sessions Judge, South, Karachi and another PLD 2011 Kar. 48; Fazal Akram v. The State 2010 MLD 596; Muhammad Faisal v. The State 2008 YLR 2821; Muhammad Dilawar Hussain v. The State 2008 MLD 414 and Alam v. The State 2007 YLR 1897 ref.

Alam v. The State 2007 YLR 1897 and Muhammad Faisal v. State 2008 YLR 2821 rel.

Sarwar Muhammad Khan for Appellant.

Syed Qamar-ul-Hassan Standing Counsel along with Inspector Ghazanfar Ali Bhutto, FIA, SBC, Karachi for the State.

Date of hearing: 14th September, 2011.

2012 P Cr. L J 119

[Sindh]

Before Imam Bux Baloch, J

Mst. FARIDA GUL AGHA---Applicant

Versus

Sheikh MUHAMMAD NASEEM and another---Respondents

Criminal Application No. 72 of 2011, decided on 30th September, 2011.

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

----S. 561-A---Quashing of proceedings---Scope---F.I.R. lodged by complainant against the applicant was disposed of by the Magistrate under class "C" and complainant having not challenged said order of Magistrate before any court of law, order of Magistrate had attained finality---Complainant later on filed direct complaint on the same facts as were narrated in the earlier F.I.R., which was disposed of by the Magistrate---Some litigation was going on between the applicant and her in-laws, it seemed that complainant had become an instrument of the in-laws of the applicant and had filed false case against the applicant---Where the court would find that there was abuse of the process of law; and that justice required, immediate, real and substantial justice, the court would be justified to exercise extraordinary jurisdiction to save a party from harassment and abuse of the process of law---Complainant in the case, at the instance of in-laws of the applicant, was dragging the applicant, who was an aged lady in one or the other criminal proceedings---High Court, in such circumstances had to come to the rescue of the innocent person---Case of the applicant was an exceptional case in which jurisdiction under S.561-A, Cr.P.C. could be exercised without waiting for Trial Court to pass orders under Ss. 249-A or 265-K, Cr.P.C.---Continuance of the proceedings in the present case before the Trial Court would be futile, wastage of time and abuse of the process of the court---High Court while exercising extraordinary jurisdiction under S.561-A, Cr.P.C., quashed proceedings arising out of the complaint.

M.S. Khawaja v. The State PLD 1965 SC 287; Shahkot Bus Service v. The State and another 1969 SCMR 325; Malik Salman Khalid v. Shabbir Ahmed 1993 SCMR 1873; The State v. Asif Ali Zardari 1994 SCMR 798; Hussain Ahmed v. Mst. Irshad Bibi and others 1997 SCMR 1503; Miraj Khan v. Gul Ahmed 2000 SCMR 122; Maqbool Rehman v. The State 2002 SCMR 1076; Chaudhry Munir v. Mst. Surriya and others PLD 2007 SC 189; Gul Hassan v. The State PLD 2008 Kar. 567 and Asif Ali Zardari v. The State PLD 2008 Kar. 310 ref.

Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122 rel.

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

----S. 561-A---Inherent jurisdiction of High Court---Scope---Where express provision was made in the Code itself, for a particular purpose, recourse could not be had to inherent jurisdiction of High Court to achieve the same purpose, but the inherent power of the High Court was of a very wide and indefinable nature; and in exercise of said power, the High Court could make all such orders which could be necessary to do real and substantial justice and prevent abuse of the process of law, subject only to the limitation that it could not override an express provision of the Criminal Procedure Code.

Abdullah Munshi for Applicant.

Muhammad Rafi Kamboh for Respondent No.1.

2012 P Cr. L J 142

[Sindh]

Before Gulzar Ahmed and Shahid Anwar Bajwa, JJ

ASGHAR KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 244 of 2009, decided on 3rd August, 2011.

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

----Ss. 6 & 9(c)---Juvenile Justice System Ordinance (XXII of 2000), S.11---Possessing narcotics---Appreciation of evidence---Release of accused on probation---Accused was child at the time when alleged crime took place; he was found in a room where narcotic substances were being packed---Ten packets of charas, each weighing 1.25 Kilograms, were recovered from the bag which the accused was packing---Accused was a menial worker and was hired by someone for packing the stuff---Trial record was absolutely silent as to who was the person who owned the narcotic substance or the house---Accused was in jail since 2004 and according to Jail Roll, accused who was ordered to undergo life imprisonment, had served period of 17 years and 6 days including remissions and a period of 9 years, 11 months and 24 days were still to go---Jail Superintendent had also stated that conduct of accused had been satisfactory all along---Accused being juvenile at the time of his arrest deserved leniency and benefit of S.11 of Juvenile Justice System Ordinance, 2000---Accused was directed to be released on probation to the custody of his guardian or other respectable person from the area, who would stand surety in the sum of Rs.5,00,000 to the satisfaction of the Nazir of High Court---Accused would be kept on probation for period of 5 years and would be duly bound to report to the Trial Court on first Monday of every month till expiry of the period of probation.

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

----Preamble, Ss.4 & 11---Purpose of trial of a juvenile was not punitive or retributive, but it was reformative---Juvenile must learn lesson certainly the hard way and reform himself to become a useful and responsible member of the society---Entire Judicial System and enforcing State mechanism must be directed in that direction---General principle of criminal jurisprudence was that all the statutes would be interpreted in favour of offender and if any discretionary powers were vested in court, same would not be withheld.

Rahat Bibi's case 2006 PCr.LJ 1562 rel.

Muhammad Ilyas Khan for Appellant.

Hussain Bux Baloch, Special Prosecutor, A.N.F. for the State.

Date of hearing: 17th May, 2011.

2012 P Cr. L J 168

[Sindh]

Before Irfan Saadat Khan, J

MUHAMMAD AZEEM alias DODO---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No. S-83 of 2009, decided on 12th August, 2011.

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

----S. 13(e)---Possessing unlicensed arm---Appreciation of evidence---Kalashnikov allegedly recovered on the pointation of accused was not sealed on the spot--- Accused was led to the recovery of said Kalashnikov after 7 days of his arrest---Said Kalashnikov was dispatched for the Ballistic Expert opinion after about 8 days, but was received in the Division after about five months of said dispatch, for which there was no explanation on the record---Copy of daily diary, under which Police along with accused allegedly went to the place of recovery had not been produced---Accused had been acquitted in the main murder case while extending him benefit of doubt---Prosecution had failed to prove charge against accused---Accused was acquitted, in circumstances.

Arif Khan v. The State 1998 PCr.LJ 1287 ref.

Asif Ali Abdul Razak Soomro for Appellant.

Ali Raza Pathan, State Counsel.

Date of hearing: 10th August, 2011.

2012 P Cr. L J 180

[Sindh]

Before Muhammad Ali Mazhar, J

ZAHID ALI---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION PATNI, TALUKA ROHRI, DISTRICT SUKKUR and another---Respondents

Constitutional Petition No. 2247 of 2011, heard on 18th August, 2011.

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

----Ss. 22-A, 22-B & 154---Constitution of Pakistan, Art.199---Constitutional petition---Registration of case---Function of Justice of Peace and officer-in-charge of Police Station---Scope---Function of the Justice of Peace was not to touch the merits of the case; his role was confined to see, whether the Police Officer on the approach of an aggrieved person, recorded the statement under S.154, Cr.P.C. or not---If Justice of Peace in each and every case on an application moved under Ss.22-A & 22-B, Cr.P.C., would start trying the case on merits and before registration of F.I.R., then the entire purpose of remedy provided under S.22-A, Cr.P.C. would become redundant and a futile exercise---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 thefunctions of the Justice of Peace---Powers of Justice of Peace were designed to aid and assist criminal justice system---Such powers were not supervisory and judicial, but 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 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.

Wajid Ali Khan Durrani v. Government of Sindh 2001 SCMR 1556; Muhammad Nawaz v. District Police Officer and others 2011 YLR 866; Mst. Anwar Begum v. Station House Officer, Police Station Karli West, Karachi PLD 2005 SC 297 and Mumtaz Ali v. S.H.O. Naushahro Feroz 2011 PCr.LJ 268 rel.

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

----S. 154---Registration of second F.I.R.---No cavil was to the prosecution that second F.I.R. could be lodged and preference would be given to the statement recorded under S.154, Cr.P.C. by the legal heir of the deceased, who was also an eye-witnesses and narrated all the crucial facts in his application before Justice of Peace warranting the registration of Second F.I.R. on the basis of his statement---No heard and fast rule was that another F.I.R. could not be registered in respect of different version given by the aggrieved party of the same occurrence---If information subsequently given to Police Officer disclosed a different offence, cognizable by the Police, then unless it was mere amplification of the first version, it must be recorded by the Police---If true facts in respect of an occurrence were not reflected by the earlier F.I.R., the refusal to record a genuine version of the same occurrence, would not be justified.

Ghulam Shabbir Shar for Petitioner.

Agha Ather Hussain, A.A.-G. for Respondents.

Date of hearing: 18th August, 2011.

2012 P Cr. L J 189

[Sindh]

Before Muhammad Ali Mazhar, J

Syed PARYAL SHAH---Applicant

Versus

BEHRAM ALI and 3 others---Respondents

Criminal Miscellaneous Application No. S-16 of 2011, decided on 21st October, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 173 & 561-A---Penal Code (XLV of 1860), Ss.302, 506(2), 147, 148, 149 & 34---Qatl-e-amd, criminal intimidation---Submission of challan---Quashing of order, application for---Investigating Officer conducted a proper investigation and submitted his report twice in which he recommended the case against accused/applicant as false, but Magistrate being not satisfied, passed order directing Investigating Officer to submit challan and produce accused persons before him---Report under S.173, Cr.P.C. was not binding upon the court, and Magistrate could take cognizance even in case of negative report---Order passed by the Magistrate should be judicious and not an arbitrary order without reasons and justifications---Magistrate was required to consider the report under S.173, Cr.P.C. in the light of the material collected during investigation and then pass the order---Power conferred upon the Magistrate though administrative in nature, had to be just and judicious; and while passing the order and showing disagreement to the report submitted by Investigating Officer under S.173, Cr.P.C., entire material collected during the investigation should be considered---Nothing was available in the impugned order to show that while passing the order, the Magistrate had applied his independent mind and considered the material available on record for reaching an unequivocal conclusion, as to why report of Investigating Officer was not inspiring confidence, and what material was collected or available on the record to connect or link applicant/accused to the case---Order passed by the Magistrate under S.173, Cr.P.C. though being an administrative order, should be a speaking order giving well reasons for its conclusion---Impugned order did not show that the Magistrate had applied his independent mind and bothered to consider the material collected during the investigation; nor it contained any plausible or cogent reason for disagreeing with the opinion of Investigating Officer--- Impugned order, was quashed, in circumstances, with direction to the Magistrate to pass a speaking order on the report submitted by the Investigating Officer, in circumstances.

Imran v. Liaquat Ali 2010 YLR 3288; Muhammad Farooq Qureshi v. Judicial Magistrate and others 2010 PCr.LJ 261; Ch. Muhammad Ashraf v. The State 2006 PCr.LJ 518; Muhammad Ahmad (Mahmood Ahmed v. The State) 2010 SCMR 660; Federation of Pakistan v. Malik Mumtaz Hussain 1997 SCMR 299 and Safdar Ali v. Zafar Iqbal 2002 SCMR 63 ref.

2010 SCMR 660 and Muhammad Nisar Cheema v. Muhammad Javed PLD 2007 SC 31 rel.

Hadi Bakhsh Bhatt for Applicant.

Syed Jaffar Ali Shah for Respondent No.1.

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

Date of hearing: 15th August, 2011.

2012 P Cr. L J 202

[Sindh]

Before Gulzar Ahmed and Salman Hamid, JJ

Mst. ZUBAIDA SULTANA---Applicant

Versus

FIRST WOMEN BANK LTD. and another---Respondents

Criminal Revision Application No. 128 of 2011, heard on 23rd September, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 249-A & 265-K---Dismissal of application for acquittal---Complaint by the Bank for the first time was dismissed by the Special Banking Court and after dismissal of said complaint, another complaint was filed by the Bank after a decade again before Special Banking Court, which was withdrawn, with the permission that fresh complaint would be filed---Two years after withdrawal of second complaint, Bank again filed complaint---Applicant in view of said milieu moved application under S.265-K, Cr.P.C. that, in turn was treated by Banking Court as an application under S.249-K, Cr.P.C. and same was dismissed---Looking at the said state of affairs and orders passed by the High Court and apex court, whereby co-accused was acquitted application by the applicant was allowed by quashing the complaint and she was acquitted.

Mujahid Bhatti for Applicant.

Muhammad Arif for Respondent No.1.

Muhammad Qasim, Standing Counsel for Respondent No.2.

Date of hearing: 23rd September, 2011.

2012 P Cr. L J 210

[Sindh]

Before Munib Akhtar, J

ABDUL RASHEED---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No S-113 and M.A. No. 3447 of 2010, decided on 21st January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 164---Penal Code (XLV of 1860), S.302/34---Qanun-e-Shahadat (10 of 1984), Art.16---Qatl-e-amd---Involvement of accused on the basis of retracted confessional statement of co-accused---Matter was investigated by the Police and Police came to the conclusion that accused was not involved in the murder---When challan was submitted, accused was shown in Column No.2 of the challan---Trial Court by means of impugned order, while relying on Art.16 of Qanun-e-Shahadat, 1984, joined the accused to face the trial---Complainant had no grievance with regard to placing accused in Column No.2---Prosecution was not expected to lead, or be able to lead, any evidence that would implicate accused in the case---Entire matter against accused emanated from confessional statement made by co-accused, who later on retracted---Even if assumed that co-accused, while appearing as a witness in his own defence, could be regarded as an accomplice-turned approver on behalf of the prosecution against accused, his testimony under Art.16 of Qanun-e-Shahadat, 1984, would only be accepted, if corroborated in material particularly by independent evidence---Such would not be the case, since, the prosecution had already concluded that accused was not involved in the offence---Conviction of accused based solely on the evidence of the accomplice, being entirely unsafe, could not come about in such circumstance---Inconvenience and hardship caused to accused by joining him as an accused, must be balanced against the interests of justice---If at the conclusion of the prosecution evidence, Trial Court would come to the conclusion that there was independent corroborative evidence forthcoming against accused, then it could after giving an opportunity of hearing to accused, consider joining him as an accused in the case---Impugned order was set aside and accused was ordered to be restored to his former position in Column No.2 of the challan.

Federation of Pakistan v Muhammad Shafi Muhammadi 1994 SCMR 932; Maqbool Hussain v The State PLD 1960 SC 382; Joygin Bibi v. The State PLD 1960 SC 313; Abdul Alim v. The State 1971 PCr.LJ 1230; Rizwana Bibi and others v The State and others 2003 YLR 263 and Muhammad Azam and others v The State 2006 PCr.LJ 62 rel

Amjad Ali Sahito for Applicant

Muhammad Iqbal Kalhoro, Additional Prosecutor-General for the State

Loungo, Haryan, Nandlal and Ganchand present.

Date of hearing: 13th January, 2011.

2012 P Cr. L J 220

[Sindh]

Before Gulzar Ahmed and Salman Hamid, JJ

MUHAMMAD RAZA---Petitioner

Versus

DIRECTOR INTELLIGENCE AND INVESTIGATION and others---Respondents

Constitution Petitions Nos. D-1830 to D-1835 of 2010, decided on 24th August, 2011.

(a) Administration of justice---

----Civil and criminal proceedings---Standard of proof in a civil case was dependent upon the preponderance of evidence which essentially would mean that it was more likely than not that something occurred in a certain way; whereas in a criminal trial and/or case the crime must generally be proved beyond reasonable doubt---Guilty, under criminal law, was punished by incarceration in a jail and fine etc.---Scope and application of law to a criminal trial was different from the one applicable to the civil proceedings; two were neither identical nor substantially the same---Authority or the court, in circumstances, was not bound under any provisions or principle of law to wait and follow the judicial verdict either way.

Talib Hussain v. Anar Gul Khan and 4 others 1993 SCMR 2177 and Deputy Inspector-General of Police, Lahore and others v. Anis-ur-Rehman Khan PLD 1985 SC 1934 rel.

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

----S. 12---Freezing the property of accused---Scope---Section 12 of the National Accountability Ordinance, 1999, had only postulated freezing of property of accused; section nowhere spoke about its appropriation in NAB's favour; and/or to its advantage---Even if the property ordered to be frozen consisted of livestock or was of a perishable nature, Chairman NAB or the court could, if it deemed appropriate and expedient, offer the immediate sale thereof; and the proceed of the sale be deposited with the Chairman NAB or as either could direct as suitable, but could not appropriate towards the liabilities of accused---NAB authorities would keep the frozen assets of accused under its receivership which would be in capacity of a custodia legis and by no stretch empowered the NAB authorities to appropriate such properties towards the liability of accused.

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

----Ss. 25 & 156---Constitution of Pakistan, Art.199---Constitutional petition---Criminal proceedings and recovery of amount of duties and other taxes---Action against the petitioners, in addition to criminal trial had also been initiated by the Customs authorities under Customs Act, 1969 for recovery of amounts of duties and other taxes---While the recovery was channelled through recovery proceedings, penalty or sentence was imposed through prosecution; and that too once accused was found guilty of such an offence.

Zohaib Sarki and Shabeeh Ishrat Hussain for Petitioner

Noor Ahmed Dayo, Senior Prosecutor, NAB for Respondents.

Ashiq Raza, D.A.-G on Court's Notice

Date of hearing: 24th August, 2011.

2012 P Cr. L J 235

[Sindh]

Before Tufail H. Ebrahim, J

Mir IFTIKHAR AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 184 of 2011, decided on 19th May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8 & 9(c)---Customs Act (IV of 1969), Ss. 155-A, 155-B, 155-D, 79 & 80---Possessing and trafficking of narcotics---Bail, grant of---Further inquiry---Benefit of doubt---Name of accused and his firm did not appear in the F.I.R.---Applicant and his firm was not the registered importers within the meaning of Ss.155-A, 155-B and 155-D of the Customs Act, 1969; nor accused and his firm were on active taxpayers' list of Federal Board of Revenue and was not entitled to file/lodge any Bill of Entry---No import manifest had been filed to show the name of accused as the importer of the container---No Bill of Entry or any other document within the meaning of Ss.79 & 80 of the Customs Act, 1969 was filed by accused or his firm---Shipping documents as well as clearing and forwarding documents of the consignment which arrived at the Port, did not contain the name of accused or his firm with regard to the involvement in respect of the alleged import---Booking confirmation documents, did not contain the name of accused---Alleged cocaine was not recovered from the physical possession of accused, nor any overt or covert attempt was made to take possession of said container---Original Bill of Lading was not available to show the ownership of the container nor any other import documents, were on record which would prima facie show that accused or his firm was the importer or had knowledge of alleged goods to establish nexus with accused in the commission of the offence---Certain anomalies in prosecution case required further investigation---No credible or tangible evidence was available against accused and his firm to connect him with the commission of alleged offence---Deeper appreciation of evidence was not warranted or desirable at bail stage and the benefit of doubt, even at bail stage should also go in favour of accused---Whenever reasonable doubt would arise as to participation of accused in the alleged offence, bail should not be withheld as punishment---No useful purpose would be served by keeping accused behind the bars since all material was with the prosecution and there was no likelihood of tampering of prosecution evidence by accused---Accused having made out a case of further inquiry within the meaning of subsection (2) of S.497, Cr.P.C., he was admitted to bail, in circumstances.

2009 YLR 2277; 2010 PCr.LJ 572; PLD 1972 SC 277; 2010 PCr.LJ 583; 2010 PCr.LJ 611; 2010 PCr.LJ 825; 2010 PCr.LJ 1087; 2011 PCr.LJ 72; 2010 PCr.LJ 348; PLD 2004 SC 856; 2011 SCMR 165; 2003 PCr.LJ 1139; 2007 PCr.LJ 514; 2003 YLR 2675; 1997 SCMR 947; 2007 YLR 1601; 2010 SCMR 1162; 2010 YLR 2811; 2010 SCMR 1160; 2010 SCMR 1016; 2010 SCMR 927; 2010 SCMR 841; PLD 1995 SC 34; 2009 MLD 1151; 2009 YLR 135; PLD 2008 Kar. 14; 2008 YLR 693; 2006 PCr.LJ 1251; 2000 PCr.LJ 738; 2000 MLD 842; 2004 CLD 603; PLD 1980 Kar 54; 2004 PTD 997; PLD 1974 Kar 49; 2011 YLR 789; 2011 YLR 809; 2011 YLR 833; 2001 SCMR 1083; 2003 SCMR 1237; 2003 SCMR 573; PLD 1998 SC 97; 2010 PCr.LJ 310; 2005 PCr.LJ 1025; 2007 PCr.LJ 615 and 2006 MLD 485 ref.

Kh. Shamsul Islam for Applicant

Sibtain Mahmud for the State/Complainant

Date of hearing: 28th April, 2011.

2012 P Cr. L J 268

[Sindh]

Before Nisar Muhammad Shaikh, J

GUL HASSAN---Applicant

Versus

MUHAMMAD USMAN and 4 others---Respondents

Criminal Revision Application No. 91 of 2010, decided on 18th March, 2011.

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

----Ss. 3 & 4(3)---Illegal dispossession from property---Complainant filed application with a prayer to disallow the counsel for accused for arguing the matter before taking cognizance of the complainant---Said application was dismissed by the Trial Court---Validity---No notice was issued by the court to the accused, but accused voluntarily made appearance through their counsel who placed some documents on record and also argued the matter---Since there was no specific bar in the Illegal Dispossession Act, 2005 to prevent alleged accused from voluntarily appearing before the court and placing their submissions prior to the complaint having been brought on record, participation of accused in the matter was not in violation of any provision; nor such irregularity, if any, would vitiate the proceedings---Application of the complainant was rightly dismissed by the Trial Court and order in that respect which was not challenged by the complainant at relevant time, called for no interference by High Court.

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

----S. 3---Criminal Procedure Code (V of 1898), S.200---Illegal dispossession from property---Complaint filed by the petitioner/ complainant against alleged illegal dispossession from the property by the respondent accused, was dismissed by the Trial Court vide impugned order holding that according to the reports the accused had purchased the property in question from the complainant through sale agreement which having been denied by the complainant the matter seemed to be of civil nature, which could only be resolved by civil court---Trial Court did not go through the material question relating to complainants' illegal and forcible dispossession as was alleged by him in his complaint filed under S.3 of Illegal Dispossession Act, 2005---Trial Court ignored relevant provisions of the Act and had not tried to ascertain as to whether prima facie, case constituted the alleged offence within the parameters of the Act---No proper inquiry or investigation as required under Illegal Dispossession Act, 2005, was conducted to find out the truthfulness or otherwise of the complaint---Sale agreement of accused though was disputed by the complainant, while the 'Sanad' of complainant's father regarding grant of land to him was an undisputed document, the complainant was not legally barred from maintaining both the civil and criminal actions simultaneously---Trial Court was obliged to ascertain as to whether the allegation made by the complainant constituted an offence under Illegal Dispossession Act, 2005, irrespective of the fact that the matter relating to the sale agreement in question could be dealt with by the civil court---Trial Court, in circumstances, had failed to exercise the jurisdiction vested in it, in a proper manner---Impugned order was set aside and case was remanded to be dealt in accordance with law, specially the provisions of Illegal Dispossession Act, 2005.

Sharmila Farooqui v. The State 2009 MLD 850 and Retd Group Capt. A.M. Morad v. Muhammad Azmatullah Siddiqui 1991 SCMR 2415 distinguished.

Sahib Khan v. Saadullah Khan and others PLD 2008 Pesh. 49 ref.

Mumtaz Hussain v. Dr. Nasir Khan and others 2010 SCMR 1254 rel

Syed Tarique Ahmed Shah for Applicant

Syed Ghulam Hyder Shah for Respondents Nos. 1 to 4.

Shahid Ahmed Shaikh, A.P.-G Sindh for Respondent No.5

Date of hearing: 28th January, 2011.

2012 P Cr. L J 293

[Sindh]

Before Nisar Muhammad Shaikh, J

JAVED NAZAR LASKANI---Applicant

Versus

THE STATE and another---Respondents

Criminal Revision Application No S-46 of 2010, decided on 17th February, 2011.

Criminal Procedure Code (V of 1898)---

----S. 345---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Compromise---Appointment of grandfather of minors as guardian of the minors---Accused allegedly committed murder of his wife as well as his daughter---Deceased, besides accused, left behind two minor children---During pendency of the case, grandfather of minors and accused jointly moved three applications relating to the compromise; one application under S.345(4), Cr.P.C. for appointment of grandfather of minors as wali/guardian of the minors; second application under S.345(2), Cr.P.C. for permission to compromise and third application under S.345(6), Cr.P.C. for acquittal of accused---Said applications stated that grandfather of the minors and heirs of the deceased had pardoned the accused in the name of Almighty Allah and had waived their right of Qisas and Diyat claiming compensation as they had patched up the matter---Trial Court dismissed application filed under S.345(4), Cr.P.C. for appointment of grandfather of the minors as their wali/guardian to enter into the compromise with accused holding that there were other legal heirs of deceased (his sisters and brothers), who had not filed any compromise application nor had given their consent for compromise---Validity---State or the complainant and accused were the parties in such like cases, but for the purpose of compromise, only accused and the legal heirs of the deceased were the parties to such proceedings---Law did not require that guardian of the minors should also be a legal heir of the deceased---Such guardian could be a relative or friend of the minors, but he should be a competent person having no interest adverse to the minor; so that he could safeguard/protect the interest of the minors---Impugned order passed by the Trial Court dismissing application filed under S.345(4), Cr.P.C. for appointment of the grandfather of the minors as their guardian/wali and treating the complainant and her sisters and brothers as legal heirs of the deceased persons, was set aside---Application under S.345(4), Cr.P.C., was allowed with direction to the Trial Court to decide the pending applications under Ss.345(2) & 345(6), Cr.P.C., in accordance with law---Relevant question relating to the compromise would also be determined by the Trial Court in accordance with law.

Ghulam Shabbir v The State and 6 others 1997 MLD 1329; Niaz Muhammad v The State PLD 1997 Quetta 17; Sartaj and others v. Mushtaq Ahmed and others 2006 SCMR 1916 and Fazal Hussain v The State 2002 PCr.LJ 1216 rel

Amjad Ali Sahito for Applicant

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

Nisar Ahmed Durrani for the Complainant

Haidaytullah Abbasi, Senior Advocate for Amicus Curaie.

Date of hearing: 24th January, 2011.

2012 P Cr. L J 319

[Sindh]

Before Muhammad Ali Mazhar, J

MATAL JAGIRANI---Applicant

Versus

THE STATE---Respondent

Criminal B.A. No. 917 of 2011, decided on 21st October, 2011.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.337-A(ii), 337-F(ii), 337-L(2), 337-H(2), 504, 147, 148, 149 & 311---Causing Shajjah-i-Mudihah, Badi'ah, hurt, rash or negligent act, intentional insult---Bail, grant of---Further inquiry---Counter version---Reported incidents in both the F.I.Rs. had no similarity which showed different incidents happened at different places---Question of determining as to who was the aggressor or who was victim, needed not to be dilated upon for the purposes of deciding the bail application---Twenty-two persons had been nominated including accused, but no specific allegation had been levelled against the accused, except that he was present at the site with hatchet---Main allegation in the F.I.R. was that all the accused persons used filthy language and thereafter one of accused persons instigated other accused persons to drag the cattle; and thereafter all the accused persons who were armed with lathis and hatchets caused blows to complainant and his witnesses; and that accused who were armed with weapons went away after making aerial firing---Role and general allegation against accused required further inquiry in such a long list of accused persons nominated in the F.I.R.---Case of accused was that of further inquiry in terms of S.497(2), Cr.P.C.---Accused was granted bail, in circumstances.

Yaroo v The State 2004 SCMR 864; Abid Ali v The State 2011 SCMR 161; Jaffar v The State 1980 SCMR 784 and Dilmurad v The State 2010 SCMR 1178 rel

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

----S. 497(2)---Bail, grant of---Principles---Further inquiry---Main consideration for grant of bail under subsection (2) of S.497, Cr.P.C., was that if the court on the basis of tentative assessment of evidence would form an opinion that prima facie reasonable grounds existed to believe that accused had not committed an offence with which he was being charged, he would be allowed bail by virtue of said S.497(2), Cr.P.C.---Actual test for grant or refusal of bail, would rest in availability of reasonable grounds, viz., the grounds which would appeal to a reasonable and prudent mind---Expression "reasonable ground" denoted a strong meaning than a mere bald allegation of suspicion.

Shewak Ram Valecha for Applicant

Sardar Ali Shah, Assistant Prosecutor-General for the State

Date of hearing: 7th October, 2011.

2012 P Cr. L J 345

[Sindh]

Before Muhammad Ali Mazhar, J

NAZAR HUSSAIN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 140 of 2011, decided on 25th October, 2011.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/148/149/395/396---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss.17/4---Qatl-e-amd, dacoity, dacoity with murder and Haraabah---Bail, refusal of---Case was of double murder in which two innocent young persons had lost their lives who were brutally killed and the offence did come within the prohibitory clause of S.497, Cr.P.C.---No reasonable ground was available to believe that accused persons had not shared their common intention with other accused persons---Allegation against accused persons was that they had committed robbery/dacoity with co-accused in their presence on the spot---Possibility of their pre-planned concert in furtherance of common object with other accused persons could not be ruled out---No explanation whatsoever had been rendered to justify the presence of accused persons at the place of occurrence---Nothing was available on record to show that the complainant party had any motive or reason to falsely implicate accused---No reasonable grounds were on the record to believe that accused persons were not guilty of the offence punishable with death or imprisonment for life---Bail application was dismissed in circumstances.

Abbas v The State 2002 MLD 1085; Muhammad Sadiq v The State 1996 SCMR 1654; Muhammad Qasim v. The State 2003 PCr.LJ 775; Manzoor Hussain v The State 2011 SCMR 902; Muhammad Akbar v. The State PLD 1991 SC 923 and Ashok v. The State 1997 SCMR 436 distinguished.

Mulo Ahmed v The State 2011 MLD 1171 and Munawar v The State 1981 SCMR 1092 rel

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

----S. 34---Constructive liability, principle of---Scope---If several persons would unite with common purpose to do any criminal offence, all those who would assist in the completion of their object, would be equally guilty---Foundation for constructive liability was the common intention in meeting accused to do the criminal act and the doing of such act in furtherance of common intention to commit the offence---In order to constitute an offence under S.34, P.P.C., it was not required that a person should necessarily perform any act with his own hand---If several persons had the common intention of doing a particular criminal act; and if, in furtherance of their common intention all of them join together and aided or abetted each other in the commission of an act, then one out of them could not actually with his own hand, do the act, but, if he would help by his presence or by other act, in the commission of an act, he would be held to have himself done that act within the meaning of S.34, P.P.C.---Paramount consideration was whether accused was a member of an unlawful assembly or whether the offence was committed in furtherance of common object.

Maqbool Ahmed Awan for Applicants

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

Achar Khan Gabol for the Complainant

Date of hearing: 13th October, 2011.

2012 P Cr. L J 361

[Sindh]

Before Ahmad Ali M. Shaikh, J

SHABBIR HUSSAIN and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.256, 258 and 260 of 2006, decided on 28th July, 2010.

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

----S. 319/34---Qatl-e-Khata---Appreciation of evidence---Evidence of mother of deceased who appeared as prosecution witness was mere 'hearsay evidence'---Father of deceased who appeared as prosecution witness, not only had contradicted his examination-in-chief, but had also failed to identify accused persons who were present in the Trial Court---Both the Investigating Officers, during the course of investigation, could not collect the material connecting accused persons with the commission of the offence and during the trial, prosecution could not produce the confidence-inspiring evidence---Both the Investigating Officers had admitted that there was no evidence against accused persons---Court witness had suppressed the truth and told lie and had no sanctity of oath, which had rendered his entire evidence to be of no evidentiary value---Trial Court had convicted accused persons merely on the basis of examination-in-chief of the prosecution witnesses and had ignored the material discrepancies and contradictions in their evidence during the cross-examination which had rendered the entire evidence not to be of worth conviction---Purpose of enquiry under S.176, Cr.P.C. as held in the case was not only to ascertain the cause of death; in such enquiry the guilt or innocence of any person could not be adjudged---Findings given by Sub-Divisional Magistrate who conducted the judicial enquiry regarding involvement of accused persons in the murder of deceased and subsequent registration of the case on the basis of such findings had lost their legal sanctity---Investigation in the case was not upto the mark---Investigating Officers during the investigation, did not record the statement of Doctor who examined deceased and provided him medical treatment; not only that but, during the investigation very important aspects of the case were ignored---Evidence of remaining witnesses was neither worth-reliance so as to convict accused on the basis thereof, nor same could corroborate the evidence of court witness; it would, therefore, be unsafe, in circumstances, to convict accused persons on the evidence of such court witness, who seemed to be dishonest witness---Prosecution having failed to prove the charge against accused persons beyond any shadow of doubt, impugned judgment passed by the Trial Court, was set aside and accused were acquitted of the charges levelled against them and were released, in circumstances.

Syed Saeed Muhammad Shah and another v The State 1993 SCMR 550; Muhammad Rahim and others v. Bakht Muhammad and others 2006 SCMR 1217; Ali Dino Khuhro v. The State 1998 PCr.LJ 464 and Shera v The State and 3 others 1972 PCr.LJ 626 rel

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

----S. 319/34---Qatl-e-Khata---Appreciation of evidence---Conflicting versions---When there were two conflicting versions for consideration before the court, the one agitated by the prosecution and the other by the defence and both were probable, the one favouring the defence was to be preferred, more so when it got corroboration for the circumstantial evidence available in the case.

Ghulam Hussain alias Hussain Bakhsh's case PLD 1994 SC 31 rel.

Mahmood A. Qureshi, Muhammad Akbar Khan and Naimat Ali Rindhawa for Appellants

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

Date of hearing: 28th July, 2010.

2012 P Cr. L J 387

[Sindh]

Before Muhammad Ali Mazhar, J

GHULAM MUSTAFA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. S-123 of 2011, decided on 28th October, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 426 & 497---Penal Code (XLV of 1860), S.409---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust by public servant and corruption---Suspension of sentence, application for---Powers of Appellate Court pending appeal---Scope---Such power not wider than that of the one under S. 497, Cr.P.C.---Pending appeal, accused had filed application for suspension of his sentence and release on bail on the sole ground of short sentence---Power of Appellate Court under S.426(1), Cr.P.C., was not limited and court could, pending disposal of appeal, suspend the sentence of accused in an appropriate case in its discretion for good and sufficient reason---Such power of Appellate Court for suspension of sentence and grant of bail was not wider than that of under S.497, Cr.P.C.---Consideration for suspension of sentence and grant of bail pending trial, could not be the same---Discretion must be adhered to for exercise of power under both the provisions (Ss. 426 & 497, Cr.P.C.) in proper manner---Discretion had to be exercised judiciously by considering the relevant contention raised and required consideration of merits---Appellate Court would refrain from entertaining such contentions and at that stage the court could not enter into a reappraisal of evidence, which should be considered at the time of hearing of the appeal---Sufficient time would be taken by the court to decide the appeal on account of backlog of cases---Sentence awarded to accused also being short, application for suspension of sentence was allowed and accused was released on bail, in circumstances.

Nazeer Ali alias Nazeer v. State 2011 YLR 403; Shafquat Mehmood v. State 2007 PCr.LJ 1035; Muhammad Saleem v. The State PLD 2006 SC 483; Allah Ditta Khan v. State PLD 2002 SC 845 rel.

Muhammad Saleem v. The State PLD 2006 SC 483 and Abdul Qadir v. The State PLD 2008 Kar. 516 ref.

Ghulam Shabeer Shar for Appellant.

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

Date of hearing: 14th October, 2011.

2012 P Cr. L J 402

[Sindh]

Before Muhammad Tasnim, J

MUHAMMAD ISHAQUE---Applicant

Versus

THE STATE/ANF PS HYDERABAD---Respondent

Criminal Bail Application No. S-421 of 2011, decided on 4th November, 2011.

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

----Ss. 497 & 103---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 25 & 51---Possessing and trafficking narcotics---Bail, refusal of---1100 grams of charas was recovered from one of co-accused, 500 grams each from other two co-accused, while two kilograms of charas was recovered from the accused---Case of co-accused being border line case, they were granted bail---Accused from whom two kilograms of charas was recovered, being not similarly placed, rule of consistency could not be applied to his case---Arrest of accused on the spot along with recovered charas, prima facie, suggested that he was involved with the commission of offence, for which the sentence prescribed under S.9(c) of Control of Narcotic Substances Act, 1997 was death or imprisonment for life---Accused, prima facie, was not entitled to bail---Offence of accused not only fell under prohibitory clause of S.497, Cr.P.C., but also attracted the bar contained in S.51(1) of Control of Narcotic Substances Act, 1997---Objection of counsel for accused regarding non-compliance of S.103, Cr.P.C. was misconceived as by virtue of S.25 of Control of Narcotic Substances Act, 1997, non-citing of a private witness was not fatal to the prosecution case as S.103, Cr.P.C. had been specifically excluded from its application, in cases of narcotics---No material was available on record to suggest that accused was facing ailment, which could not be cured in the prison; or there was any danger to his life if such medical treatment was not provided to him outside the prison---Counsel for the accused had argued that accused being T.B patient he could be enlarged on bail---No definite finding could be recorded on such aspect of the case, at bail stage---Accused having failed to make out a case for grant of bail, his bail application was dismissed, in circumstances.

Nasir Khan Afridi v. State 2011 YLR 2316; Maqsood Zaman v. State 2011 YLR 2335; Bahawal v. State 2011 PCr.LJ 1200; Mumtaz Ahmed v. State PLD 2002 SC 590; Hamza v. State 2000 PCr.LJ 1360; Muhammad Aslam v. State 2011 SCMR 820; Khuda Bux v. State 2010 SCMR 1160; Safir Khan v. State 2011 MLD 365 and Shahid Hussain v. State 2008 YLR 1560 distinguished.

The State v. Javed Khan 2010 SCMR 1989; Muhammad Khan v. State 2008 SCMR 1616; Ghulam Qadir v. State PLD 2006 SC 61; The State v. Abdul Ghani 2010 SCMR 61 and Zulfiqar Ali v. State 2006 SCMR 800 ref.

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

----S. 497---Bail---Principles---Deeper appreciation of record, could not be gone into at bail stage, but it was to be prima facie seen as to whether accused was connected with commission of offence or not.

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

----S. 51---Criminal Procedure Code (V of 1898), S. 497---Bail---When the law had provided some special provision in the statute to bar the jurisdiction of special court established under the said enactment, due weight was to be given to such provision of law as against general principles governing such cases, when accused would approach special court or the High Court for grant of bail.

Syed Madad Ali Shah for Applicant.

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

Date of hearing: 31st October, 2011.

2012 P Cr. L J 423

[Sindh]

Before Salman Hamid, J

SARFRAZ KHAN---Applicant

Versus

ALLAH BUX and 4 others---Respondents

Criminal Revision Application No. S-62 of 2009 and M.A. No. 2377 of 2010, decided on 3rd August, 2010.

Illegal Dispossession Act (XI of 2005)---

----S. 3---Transfer of Property Act (IV of 1882), S. 52---Illegal dispossession---Dismissal of complaint---Complaint was dismissed on the ground that on the date of filing of such complaint, litigation in respect of property in question was pending (since 1984, prior to the promulgation of Illegal Dispossession Act, 2005)---Validity---Illegal Dispossession Act, 2005 had no retrospective effect and it could not be made applicable to the cases of unauthorized occupants pending before another forum on the date of promulgation of the Act---Under provisions of S.52 of Transfer of Property Act, 1882, during pendency of any suit or proceedings in any court, with regard to immovable property, said property could not be transferred, or otherwise dealt with by any other party to the suit or proceedings---In the present case, litigation and proceedings were pending about the land in dispute but complainant chose to purchase the same, ignoring principles of S.52 of the Transfer of Property Act, 1882---Ignorance of law was no ground to claim any latitude or benefit thereof---Findings of the court below, could not be interfered with in revisional jurisdiction of the High Court---Petition was dismissed.

Rahim Tahir v. Ahmed Jan and 2 others PLD 2007 SC 423 rel.

Habibullah G. Ghori for Applicant.

Faiz Muhammad Larik for Respondents Nos. 2, 3 and 4.

Naimatullah Bhurgri, State Counsel.

Date of hearing: 29th July, 2010.

2012 P Cr. L J 430

[Sindh]

Before Shahid Anwar Bajwa, J

NAZAR MUHAMMAD and 2 others---Applicants

Versus

THE STATE---Respondent

Pre-arrest Bail Application No. 214 of 2011, decided on 21st November, 2011.

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

----S. 498---Penal Code (XLV of 1860), Ss.302/337-H(2)/34---Qatl-e-amd, causing hurt by rash or negligent act---Pre-arrest bail, grant of---Accused were alleged to have made only ineffective firing at the time of occurrence and they had not made any firing at the deceased---Inevitably in almost all cases when a person is arrested, there is an element of disgrace, dishonour and humiliation and cases of bail before arrest should be followed in the light of modern trends of civilized society, rather than following barbaric feudal traditions---State Counsel had failed to point out as to how investigation would be assisted by the accused being made to yield into clutches of police or their honour would not be besmirched by their arrest---Bail before arrest was granted to accused in circumstances.

Yaroo v. The State 2004 SCMR 864; Rahmatullah v. Fazal Baqi and another 1998 SCMR 455; Attaullah and 3 others v The State and another 2004 SCMR 864; Hidayatullah Khan son of Sher Nawab Khan v. The Crown PLD 1949 Lah 21; Zeeshan Kazmi v The State 1997 PCr.LJ 881; Muhammad Ramzan v. Zafarullah and another 1986 SCMR 1380; Ali Gohar and 5 others v. The State 2008 PCr.LJ 652; Fazal alias Bodi v The State 1979 SCMR 9; Sarwar Sultan v. The State PLD 1994 SC 133 and Rana Muhammad v. Muhammad Rafique PLD 2009 SC 427 ref

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

----S. 498---Bail before arrest---Law relating to bail before arrest summarized.

Following is the summary of law of bail before arrest:--

(a) Grant of bail before arrest is an extraordinary relief to be granted only in extraordinary situations to protect innocent persons against victimization through abuse of law for ulterior motives;

(b) Pre-arrest bail is not to be used as a substitute or as an alternative for post-arrest bail;

(c) bail before arrest cannot be granted unless the person seeking it satisfies the conditions specified through subsection (2) of section 497 of Code of Criminal Procedure i.e., unless he establishes the existence of reasonable grounds leading to a belief that he was not guilty of the offence alleged against him and that there were, in fact, sufficient grounds warranting further inquiry into his guilt;

(d) not just this but in addition thereto, he must also show that his arrest was being sought for ulterior motive, particularly on the part of the police; to cause irreparable humiliation to him and to B disagree and dishonour him;

(e) such a petitioner should further establish that he had not done or suffered any act which would disentitle him to a discretionary relief in equity e.g. he had no past criminal record or that he had not been a fugitive at law; and finally that;

(f) in the absence of a reasonable and a justifiable cause, a person desiring his admission to bail before arrest, must, in the first instance approach the Court of first instant i.e. the Court of Session, before petitioning the High Court for the purpose.

Rana Muhammad v. Muhammad Rafique PLD 2009 SC 427 ref.

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

----S. 498---Bail before arrest---Principles---Considerations for grant of pre-arrest bail are not at all different from the considerations for grant of post arrest bail, as far as merits of the case are concerned---Only difference is that there must be additional basis of humiliation, harassment, mala fides, intention to disgrace and dishonour---If a person is otherwise entitled to bail, no useful purpose shall be served by putting him firstly behind bars and then allowing him bail---Court has to keep a balance---If a fit case for grant of bail is made out, bail before arrest should be allowed in appropriate cases.

Hidayatullah Khan v. The Crown PLD 1949 Lah. 21; Zeeshan Kazmi v. The State 1997 PCr.LJ 881; Muhammad Ramzan v. Zafarullah and another 1986 SCMR 1380; Ali Gohar and 5 others v. The State 2008 PCr.LJ 652; Fazal alias Bodi v. The State 1979 SCMR 9; Sarwar Sultan v. The State PLD 1994 SC 133 and Rana Muhammad v. Muhammad Rafique PLD 2009 SC 427 ref.

Farman Ali Kanasro for Applicants.

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

2012 P Cr. L J 500

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

AMEER BUX and another---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeal No.D-172 of 2009, decided on 30th November, 2011.

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

----Ss. 302(b), 324, 353 & 399---Qatl-e-amd, attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty and making preparation to commit dacoity---Appreciation of evidence---Prosecution witnesses had specifically stated that they could not identify the accused persons---Any description of dummies or their addresses or occupations, or any clue whether they were fellow prisoners or outsiders were mentioned in the proceedings of identification parade---Star witness on whose identification, the foundation of whole prosecution case was laid down had stated in his examination-in-chief that he saw ten armed persons encircling the coach, but he did not identify any one of the culprits---Said witness had demolished the entire case of the prosecution as he made the whole identification parade full of doubts and suspicions---Said witness had himself admitted that he was called by the S.H.O. and told him that accused had been arrested, which showed that he had already seen both the accused persons before identification parade---Prosecution had failed to establish that identifying witness had no occasion to see accused after the commission of offence till holding of the identification parade---No details of identification parade were mentioned in the statement recorded under S.342, Cr.P.C., while it was the duty of the Trial Court to put question to accused persons on all incriminating facts coming in evidence enabling the accused to explain circumstances---Where incriminating evidence was not put to accused to obtain his explanation, such piece of evidence, could not be used against the accused persons to convict---Prosecution, in circumstances, had failed to successfully prove its case against accused persons beyond all reasonable doubts---Impugned conviction and punishments recorded in the judgment by the Trial Court, were set aside and both accused were set at liberty, in circumstances.

Muhammad Ayaz v. State 2011 SCMR 769; Lal Pasand v. State PLD 1981 SC 142 and State v. Siparo 1993 SCMR 585 rel.

Habibullah v. State PLD 2007 Kar. 68; State v. Khan Muhammad 2005 PCr.LJ 811; Muhammad Zaman v. State 2007 SCMR 813; Allah Bux v. Shami and others PLD 1980 SC 225 and Wahid v. State PLD 2002 SC 62 distinguished.

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

----Art. 22---Identification parade---Prerequisites---In order to ensure that identification parade was conducted fairly, it would become the duty of the prosecution to adopt such measures so that identifying witness could not see the accused after commission of crime till the identification parade was held immediately after the arrest of accused persons as early as possible---If role of accused was not described by the witness at identification parade, such type of identification would lose its value and could not be relied upon, if prosecution witnesses had seen the accused before identification parade---Such piece of evidence of identification parade could not be relied upon---Identification at identification parade or in court would be of no use, unless role of each accused in crime was attributed at the very outset---Absence of complete description of dummies at the test of identification parade, without their address, their occupation and without any clue, whether they were fellow prisoners or outsiders, admitted dissimilarity in height, physique, features, complexion, appearance and dress of dummies and accused persons, would render such exercise always open to serious doubts.

2001 SCMR 424; 2007 SCMR 670 and 2008 SCMR 302 rel.

Ali Ahmed Khan and Abdullah Memon for Appellants.

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

Date of hearing: 14th September, 2011.

2012 P Cr. L J 528

[Sindh]

Before Faisal Arab and Aqeel Ahmed Abbasi, JJ

INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN through Attorney---Appellant

Versus

ABDUL LATIF CHANNA and 6 others---Respondents

Criminal Acquittal Appeal No. 161 of 2010, decided on 23rd November, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 265-K & 417---Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997), S.19---Appeal against acquittal--- Application filed by three respondents under S.265-K, Cr.P.C. for acquittal was allowed by Banking Court---Allegation against the respondents was that machinery/plant for which loan was provided, was missing and the mortgaged property had been handed over to someone else on lease---Allegations of misutilization of the finance and the removal of machinery/plant were directed against one respondent---Counsel for the bank had contended that it was an admitted position that loan was obtained by said three respondents and they were liable for the criminal offence---Validity---Under the law, obtaining loan and inability to pay back the same was not a criminal offence---It could be a civil liability to be proceeded in civil forum provided under the law, but the commission of default in repayment of loan, would not give birth to a criminal offence---Machinery/plant had been removed which allegation was directed against one respondent only---Criminal proceedings against said respondent, in circumstances, would continue, whereas no useful purpose would be served, if remaining respondents were proceeded against; as there was no likelihood of their conviction, in the circumstances of the case.

Ainuddin for Appellant.

Dur Muhammad Shah for Respondents Nos. 1, 2 and 7.

2012 P Cr. L J 542

[Sindh]

Before Shahid Anwar Bajwa, J

ALI SHER---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No. 44 of 2011, decided on 20th July, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 439, 514 & 561-A---Criminal revision---Forfeiture of surety bond---Accused for whom the petitioner stood surety and was released on bail, jumped the bail---Non-bailable warrants were issued against accused and surety bond of the petitioner was forfeited and notice to the surety was issued under S.514, Cr.P.C. which notice was repeated for a number of times---Assistant Sessions Judge ordered that the entire bond amount be imposed upon surety as penalty---Said order was challenged in appeal and Appellate Court taking lenient view reduced amount of penalty from Rs.100,000 to Rs.50,000---Accused had remained absconder for 5 years---Appellate Court had already shown leniency and reduced amount of penalty---No further indulgence by High Court was called for, in circumstances.

Tahir Mehmood Bashir v. The State and another 2010 YLR 466; Sardar Ahmad v. The State 1993 PCr.LJ 2451 and Muhammad Khan v. The State 1986 PCr.LJ 2028 distinguished.

Ashfaque Hussain Abro for Applicant.

Ameen Ahmed Narejo for the State.

Date of hearing: 20th July, 2011.

2012 P Cr. L J 550

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

ALTAF HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No. D-117 and Confirmation Case No.D-6 of 2009, decided on 19th October, 2011.

Penal Code (XLV of 1860)---

----S. 302--- Qatl-e-amd--- Appreciation of evidence--- Sentence, reduction in---Submission of counsel, who had volunteered to appear on behalf of accused, had contended that at the time of framing of charge no advocate was provided to accused, but was provided later on and evidence of prosecution witness was recorded on the very date when counsel appeared for the first time---Counsel for accused had not at all objected to recording of examination-in-chief on the day when he was appointed for the first time; he had nowhere contended that accused had been in any way prejudiced in his defence by lack of representation through a counsel on the day when the charge was framed---No such miscarriage of justice having been pleaded by the counsel and was not discernable from the record and proceedings of the case, contention of counsel was without any substance---Contention of the counsel for accused was that, the complainant in his evidence had merely stated that hatchet blows were given to the deceased, but it was not stated that hatchet blows were given to her---Said contention had no force as while recording statement under S.342, Cr.P.C. question about recovery of blood-stained earth was put to accused---Contention that recovery of hatchet was not put to accused at the time of recording statement under S.342, Cr.P.C., was not correct and was not borne out from the record---Evidence of prosecution witnesses was found to be doubtful, contentions that there were contradictions in ocular and medical evidence, and that contradiction was also found in statement of complainant/prosecution witness regarding blows given by all three persons therefore, need not be adverted to---Accused had clearly and fairly stated that he had committed the offence of murder of his wife and had voluntarily recorded judicial confession that he had murdered his wife as he suspected her character---Said confessional statement alone was sufficient to convict accused---Sole basis of conviction of accused was the confessional statement of accused and statement of accused under S.342, Cr.P.C. and direct evidence did not seem to deserve much reliance---Interest of justice would be served if while maintaining conviction of accused, his sentence of death was converted into imprisonment for life.

Abdul Sattar v. State 2002 PCr.LJ 51; Muhammad Shah v. State 2010 SCMR 1009; Riaz Ahmed v. State 2010 SCMR 846; Majeed v. State 2010 SCMR 55; Ghulam Qadir and others v. State 2007 SCMR 782; Mokha v. Zulfiqar and 9 others PLD 1978 SC 10; Allah Bakhsh v. Shamim and others PLD 1980 SC 225; Ahmed and others v. The State 1987 SCMR 2019; Nadeem alias Nanha alias Billa Sher v. The State 2010 SCMR 949 ref.

Mazhar Hussain v. State 1990 MLD 195; State v. Minhun alias Gul Hassan PLD 1964 SC 813; Ghulam Qadir and others v. The State 2007 SCMR 782; Adalat alias Muhammad Ali alias Iqbal and others v. The State and others 2000 MLD 875; Zulfiqar Ali v. The State 1998 PCr.LJ 1700; Emperor v. Lal Bakhsh AIR 1945 Lah. 43 and Sadhu Singh and others v. Firm Kahan Singh and others AIR 1944 Lah. 473 rel.

Qurban Ali Malano for Appellant.

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

Date of hearing: 17th August, 2011.

2012 P Cr. L J 595

[Sindh]

Before Muhammad Ali Mazhar, J

SALEH alias SALOO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 827 of 2011, decided on 21st November, 2011.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 5I---Possessing narcotics---Bail, grant of---Accused though had been nominated in the F.I.R. on the basis of alleged spy information, yet nothing was recovered from him on the spot, as he had escaped from the spot---Bag containing "Charas" was found lying on the spot---F.I.R. did not show as to how police had identified the accused with parentage---Case against accused needed further probe---Court in appropriate cases had the power to grant bail despite the embargo under S.51 of the Control of Narcotic Substances Act, 1997---Bar contained under the said section was attracted only when reasonable grounds existed for believing the accused being guilty of the alleged offence---Quantity of the contraband material could be given importance only when the same was lined with the accused by cogent evidence---No reasonable grounds were available to believe that accused was involved in the alleged crime---Accused was admitted to bail in circumstances.

2007 PCr.LJ 89 and 2007 PCr.LJ 896 ref.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.51 & 9(c)---Bail, grant of---Section 51 of the Control of Narcotic Substances Act, 1997, is no bar for grant of bail in appropriate cases---Courts in such cases have the power to grant bail despite the embargo contained in S.51 of the said Act.

2007 PCr.LJ 89 and 2007 PCr.LJ 896-ref.

(c) Criminal Procedure Code (V of 1898)

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.51 & 9(c)---Bail---Applicability of S.51 of Control of Narcotic Substances Act, 1997---Scope---Section 51 of the Control of Narcotic Substances Act, 1997, is attracted only when reasonable grounds exist to believe that accused is guilty of the alleged offence.

2007 PCr.LJ 89 and 2007 PCr.LJ 896 ref.

(d) Bail---

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

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

----S. 9---Possessing narcotics---Punishment---Quantity of recovered narcotics, consideration of---Quantity of the contraband and material can be given importance only when the same is linked with the accused by cogent evidence.

Ghulam Shabbir Dayo for Applicant.

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

Date of hearing: 28th October, 2011.

2012 P Cr. LJ617

[Sindh]

Before Muhammad Tasmim, J

MUHAMMAD JAWED and 8 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 1235 of 2010, decided on 12th September, 2011.

Criminal Procedure Code (V of 1898)---

---Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss.302/324/337-A(i)/ 452/34---Qatl-e-amd, attempt to commit qatl-e-amd, causing Shgf/ah-e-Khafifah, house-trespass---Interim pre-arrest bail, confirmation of---Further inquiry---Delay of ten hours in lodging F.I.R. had not been explained by the prosecution---Deeper appreciation of the record could not be gone into at bail stage but only a tentative assessment was to be made just to find out as to whether accused were connected with the commission of offence or not---Allegations against accused persons were general in nature and specific role had been assigned only to absconded accused---Three prosecution witnesses had not stated in their statement under S.161, Cr.P.C. that other prosecution witness was present with them at the time of incident---Prosecution had improved its case in statement under 5.161, Cr. P. C. and delayed statement under S.164, Cr.P.C.---Originally accused were charged under S.337-A(i), P.P.C., but based on subsequent investigation, provisions of Ss.324.& 452, P.P.C. were also added---All said factors had made the case of the prosecution doubtful and accused persons had successfully made out a case of further inquiry---Once pre-arrest bail application had been entertained by the High Court, same was to be decided on merits and should not be dismissed on technical grounds---Accused having successfully made out a case of further inquiry in terms of subsection (2) of 5.497, Cr. P. C., interim pre-arrest bail was confirmed, in circumstances.

Rais Wazir Ahmad v. The State 2004 SCMR 1167; Jaffar and others v The State 1980 SCMR 784; The State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322; Nadeem Hamid v. The State PLD 1997 Kar 494; Shamrez Khan v The State 1999 PCr.LJ 74 and Riaz Ahmed Goharshahi v The State PLD 2002 Kar 6 rel

Sultan Ahmed Siddiqui v. The State PLD 2010 Kar. 110; Riaz Ahmed Goharshahi v. The State PLD 2002 Kar. 6; Farzand Ali v. Taj and othes 2002 SCMR 1854; Basharat Hussain v. Ghulam Hussain and others 1978 SCMR 357 and Kouro and another v. The State 2004 YLR 2434 ref

Nazir Ahmed and others v. The State and others PLD 2005 Kar

1. Muhammad Ajmal Khan V. The State 1985 PCr.LJ 21 and Muhammad Ishaq v. Chan Zeb and another 1996 PCr.LJ 845 distinguished.

Syed Ahmed Ali Shah for Applicants

Zahoor Shah, Assistant Prosecutor-General Sindh for the State.

Ghulam Nabi through Abdul Wahab Baloch for the Complainant

Ghulam Mustafa Memon for Injured Persons

Date of hearing: 9th September, 2011.

2012 P Cr. L J 634

[Sindh]

Before Muhammad Tasnim, J

TARIQ SHAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 181 of 2008, decided on' 6th May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 426(1-A)(c) [as inserted by Code of Criminal Procedure (Amendment) Act (VIII of 2011)]---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Application for enlargement on bail during pendency of appeal---Applicant/accused who was convicted and sentenced to suffer imprisonment for life under S.302, P. P. C, had served 32 months after his conviction and apart from the said period of 32 months after his conviction, he remained in custody ever since 15-2-2003---Appeal against conviction order passed by the Trial Court on 12-8-2008, was admitted to regular hearing on 3-9-2008, whereafter case was taken up on 3-7-2009 on which date counsel for appellant and State Counsel were in attendance, but matter could not proceed---On various future dates, matter was adjourned by the court for want of time---Delay in disposal of appeal, in circumstances, could not be attributed to accused---Since accused was not previously convict offender for an offence punishable with death or imprisonment for life, or .a hardened, desperate or dangerous criminal, or was accused of an act of terrorism punishable with death, or imprisonment for life, his case squarely fell within the provisions of amended S.426(1-A)(c), Cr.P.C.---Accused appeared to be entitled for relief as provided under the relevant law---Impugned order passed ,by the Trial Court, was suspended and accused was ordered to be released on bail---Counsel for accused had submitted that he had no objection. to the early hearing of appeal, but as accused was proceeding abroad in connection with medical treatment of his wife and he would not be here in the next month---Office was directed to fix appeal immediately after Summer Vacations of 2011 at serial No.1 in regular hearing cases according to roaster.

A.Q. Halepota for Appellant.

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

2012 P Cr. L J 653

[Sindh]

Before Gulzar Ahmed and Salman Hamid, JJ

ABDUL HAMEED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 868 of 2011, decided on 30th August, 2011.

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

----S. 497(2)---Explosive Substances Act (VI of 1908), Ss.3, 4 & 5---Anti-Terrorism Act (XXVII of 1997), S. 7---Causing and attempting to cause explosives and making or possessing explosives and act of terrorism---Bail, grant of---Further inquiry---Medical report, heavily relied upon by the prosecution, showed that accused had sustained injuries due to blast, but said report was not produced---Even if said report was produced, at bail stage, same could not be attributed to accused for the reason that he was not arrested on the spot and was arrested subsequently far away from the place of blast; and that too upon pointing out by other accused---Injuries on the body of accused could be for any reason and tentatively could not be joined with the explosion of the house---Connection of accused with the explosion at the time, when the evidence (at bail stage) was not required to be looked into and/or appreciated preferably, prima facie, ?lid not hook-up accused with the offence and made out a case of further inquiry as demanded by subsection (2) of S.497, Cr. P. C.---Provisions of Ss.3, 4 & 5 of Explosive Substances Act, 1908, would show that any person found associated in causing e.tplosion and/or keeping explosive item with intent to endanger life or property and/or making explosives, would be punished for such offences---Accused was neither found possessing the explosive substances nor making such explosive substance and he was not even arrested from the place of explosion to show that he was busy making explosive substances and because of explosion, suffered injuries-Case being of further inquiry, accused was enlarged on bail, in circumstances.

Muhammad Parvaiz v. The State 2005 SCMR 1038; Muhammad v. The State 1998 SCMR 454; Muhammad Mushtaq v. Muhammad Ashiq and others PLD 2002 SC 841; Inam-ul-Haq and another v. The State and another 2009 PCr.R 1; Muhammad Rafiq ul Islam v. The State 1998 PCr.LJ 1262; Rehmatullah alias Babu v. The State 2002 PCr.LJ 528; Junaid and 2 others v. The State 2000 PCr.LJ 1510 and M. Ahmed alias Daniyal v. The State 2005 YLR 952 ref.

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

----Art. 40---Proof of information, received from accused---Scope of Art.40, Qanun-e-Shahadat, 1984---Provisions of Art.40 of Qanun-e-Shahadat, 1984, posed by prosecution, seemed to be out of place and without substance, inasmuch as that Article stipulated that when accused would depose and/or confessed, same was required to be proved which would be possible only upon a full-fledged trial of the case---Provisions of Art.40 of Qanun-e-Shahadat, 1984, could not be taken advantage of by the State at bail stage---Article 40 of Qanun-e-Shahadat, 1984, was an exception to Art.38 and Art.39 of Qanun-e-Shahadat---To bring the case within the confines of said Article, it was incumbent upon the prosecution to establish that the information conveyed by accused actually led to the discovery of some facts and that such fact was not in the knowledge of the Police; and that it came to light for the first time upon confession of accused.

Shah Jehan Khan for Applicant.

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

Date of hearing: 30th August, 2011.

2012PCr.LJ679

[Sindh]

Before Irfan Saddat Khan, J

GUL AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 666 of 2011, decided on 23rd August, 2011.

Criminal Procedure Code (Vol 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 420/468/471/109---Foreigners Act (XXXI of 1946), Ss.3(2)/13/14---Cheating, forgery, using as genuine a forged document--- Bail, grant of--- Further inquiry---Accused was having a National Identity Card and Passport since 1991, which had not been controverted by the State Counsel or the Inspector of the Investigating Agency---Passports issued to accused were time and again renewed and at no point of time accused was declared to be Afghan national and it was only on 7-5-2011 when accused arrived from Dubai, that he was apprehended on the ground that during immigration, the particulars entered into PISCES Data Base System, had not confirmed his NICOP---Question required enquiry with regard to the national status of accused as he had been suspected to be an Afghan national, whereas, as for the documents produced by him, he had stated that he was a Pakistani national and a permanent resident of Kurram Agency; and had also in that regard annexed character certificate of two Political Agents of Kurram Agency duly affirming that he was a resident of Kurram Agency---On the tentative assessment of facts and circumstances of the case, the matter required further inquiry with regard to the national status of accused and also with regard to how previous NIC and the Passport were issued to him from time to time---Was not understandable that as to how only on the basis of appearance a person could be termed as a foreign national or a Pakistani national without first ascertaining his identity, which in the case needed to be thrashed out after a detailed inquiry---Case being fit for further inquiry, accused was granted bail, in circumstances.

Saleem Bhallo v. District and Session Judge, South PLD 2011 Kar. 48 ref.

Rana Muhammad Iftikhar for Applicant.

Muhammad Ashraf Mughal, D.A.-G. along with I/O Inspector Rashid Hussain of F.I.A (AHTC) for the State.

Date of hearing: 22nd August, 2011.

2012 P Cr. L J 690

[Sindh]

Before Muhammad Ali Mazhar, J

KADIR BUX alias PORHO---Applicant

Versus

THE STATE---Respondent

Criminal B.A. No. 574 of 2011, decided on 16th September, 2011.

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

----S. 497--- Penal Code (XLV of 1860), Ss. 302/342/452/147/148/ 149/109--- Qatl-e-amd, attempt to commit qatl-e-amd, house­trespassing---Bail, refusal of---Delay attributed to the complainant in lodging the F.I.R., could not be treated fatal to the prosecution at bail stage=--Challan had already been submitted in which eight accused had been shown absconders---No eye-witness of the murder was available, but the eye-witnesses of trespassing and jumping over compound wall and kidnapping the deceased were on record---Dead body was also recovered and recovery of weapon was also made from the accused---Whether the weapon of offence was licensed or unlicensed or licensed in the name of any other. person and not accused was immaterial---Accused was properly identified by the complainant with shotgun and same was also recovered from his custody---Accused appeared to have acted in pre-concert or shared commonality of intention with co­accused---Undeniable presence of accused at the place of incident duly armed with weapons had shown his motive of pre-concert in furtherance of common object---Case being not that of further inquiry, no reasonable grounds existed to believe that accused had not committed any non-bailable offence---Bail application was dismissed.

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

----S. 497---Bail---Constructive liability---Court on the basis of material placed, such as F.I.R. and statements recorded by the Police, even at bail stage, could consider the question whether the case of constructive" liability was made out or not---Paramount consideration was whether accused was a member of a unlawful assembly or whether the offence had been committed in furtherance of the common object.

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

----S. 497(2)---Bail---Further inquiry---Scope---Every hypothetical question, which could be managed would not make the same a case of further inquiry, simply for the reason that said question could be answered by Trial Court subsequently after evaluation of evidence---Accused, in order to be released on bail, must further show that there was no reasonable ground for believing that he had committed offence as alleged against him---Mere possibility of further inquiry, which existed, almost in every criminal case, was no ground for treating the matter as the one under subsection (2) of S.497, Cr. P. C.

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

----Ss. 497 & 498---Penal Code (XLV of 1860), 5.302---Qatl-e-amd---Bail---Principles---Deep scrutiny of case was not permissible at bail stage, nor the same was a requirement of law, but the court of law was not precluded front tentative persuing the evidence of the eye-witnesses, recovery witnesses and other connecting evidence; and to form a tentative opinion as to whether accused was prima facie connected with the offence or not---While deciding the bail application, the court need not enter upon detailed appreciation of evidence, however the question could not be decided in vacuum and court had to look at the material available---If the answer was in positive in forming the tentative opinion as to whether accused was prima facie connected with the commission of offence of murder or where the sentence provided was either death or life imprisonment, then the refusal of bail, was a rule, while granting of bail was an exception.

Muhammad v. State 1998 SCMR 454 and Attaullah v. State 1999 SCMR 1320 distinguished.

Mouloo Ahmed v. State 2011 MLD 1171 and PLD 2001 SC 378 ref.

Farman Ali Kanasero for Applicant.

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

Date of hearing: 12th September, 2011.

2012 P Cr. L J 700

[Sindh]

Before Muhammad Athar Saeed and Imam Bux Baloch, JJ

ZEESHAN AHMED---Applicant

Versus

THE STATE and another---Respondents

Criminal Miscellaneous. No.336 of 2010 and M.A. No.4033 of 2011, decided on 26th September, 2011.

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

----S. 561-A---Inherent powers of High Court---Scope---Section 561-A, Cr.P.C., conferred powers to High Court, if it came to the conclusion that an act if continued, would be abuse of the process of law to allow a suitor to litigate over again, which raised a question already decided by the court of competent jurisdiction---High Court was neither given, nor did it ever possess unrestricted and undefined powers to make any order which, it might please to consider, was in the interest of justice---Inherent powers of High Court were controlled by principles and precedents and its express power by statute---Under inherent powers, the High Court had no jurisdiction to alter, review its own order, except to the extent. of clerical error or typographical mistake or an order passed without jurisdiction.

Allied Bank of Pakistan Ltd. v. Khalid Farooque 1991 SCMR 599; Muhammad Ilyas Chief Manager/Attorney Allied Bank Ltd. v. Shahidullah and others PLD 2009 SC 446; Dadio v. Sobharo and another 2010 SCMR 576; Kazi Talmiz alias Tani v. Syed Maqbool Muhammad Shah 2010 SCMR 605; Ghulam Raza v. Khuda Bux and another 2005 SCMR 1904; Muhammad Arshad v. The State 1997 SCMR 1275; The State v. Syed Qaim Ali Shah 1992 SCMR 2192; Sher Muhammad Khan v. Muhammad Ashraf Khan Tareen and others 1991 SCMR 239 and Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

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

----Ss. 561-A & 369---Inherent powers and power of alteration of judgment by High Court---Scope---When order passed, was without jurisdiction, ex parte and perverse, the extraordinary jurisdiction of High Court under 5.561-A, Cr.P.C., was to be invoked for reviving the same---In the present case, applicant had ample opportunity to challenge impugned order before the apex court, but he had not adopted such course and chose to file review application; and he wanted to reopen the case---Counsel for the applicant had touched upon the merits of the case which was already decided---Once the merits of the case had been decided by an order, same could not be reopened in review jurisdiction, which otherwise was not available in Criminal Procedure Code, 1898.

Ghulam Sarwar and another v. The State 1979 SCMR 43; Raju and another v. Emperor AIR 1928 Lah. 462; Rehmat Ali alias Lunda v. The State 1971 SCMR 513; Muhammad Siddique v. Imtiaz Begum and 2 others 2002 SCMR 442; Darya Khan v. The State PLD 1989 Kar. 115; Iqbal v. The State 2001 PCr.LJ 1634; Kaloo Khan v. Muhammad Manzoor Khan and another 1997 MLD 600 and Gulzar Hassan Shah v. Ghulam Murtaza and 4 others PLD 1970 SC 335 rel.

Muhammad Ashraf Kazi for Applicant.

Sadaqat Ali Standing Counsel for the State.

Khawaja Naveed Ahmed for Respondent No. 2.

Date of hearing: 26th September, 2011.

2012 P Cr. LJ757

[Sindh]

Before Shahid Anwar Bajwa, J

IMRAN MEHMOOD and another-Applicants

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.11 of 2011, decided on 28th December, 2011.

Criminal Procedure Code (V of 1898)---

----S.561-A---Penal Code (XLV of 1860), Ss. 420/468/469/471/408/34---Cheating, forgery, using as genuine a forged document, criminal breach of trust by clerk or servant---Application for quashing of order---Applicants/accused had sought quashing of order passed by Magistrate---All that the Magistrate had done, was that he took cognizance and sent the matter to the Trial Court for proceedings with the trial---If applicants felt that trial should be stayed, they should have in the first place approached the Trial Court to stay the proceedings, but they had not done so---What had been challenged by the applicants, in the application, was the very act of taking cognizance by the Judicial Magistrate and it was premature for the applicants to contend that since civil suit was pending, the criminal trial be stayed which was not germane to the question, whether cognizance had rightly been taken or not---Magistrate had specifically come to the conclusion that there was documentary evidence available against accused---Once Magistrate had come to the conclusion, and there was documentary evidence., it was not domain of the Magistrate to enter into exercise of evaluating that evidence; and then deciding guilt or innocence of the person alleged to have been committed as stated in the F. L R.-Magistrate had not passed judicial order he had just seen as to whether prima facie, there was material in respect of allegations---What was the evidentiary worth of such material was not domain of the Magistrate to decide--Contention of counsel for the applicant that Magistrate had merely passed order in mechanical Manner, was not borne on the record--- Application for quashing the order of the Magistrate was dismissed.

Muhammad Siddique v. S.H.O. Sadar, Sialkot and 4 others PLD 1994 Lah. 407; Mushtaq Raj v. Magistrate Ist Class and others 1994 PCr.LJ 497; Bahadur and another v. The State and another PLD 1985 SC 62; Dr. Ghulam Mustafa Solangi and 5 others v. The State 2005 PCr.LJ 1638; A Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353; Akbar Ali v. Additional Sessions Judge, Faisalabad and 7 others PLD 2007 Lah. 534; Malik Khuda Bakhsh v. The State 1995 SCMR 1621; Haji Muhammad Ashiq v. The State and another 2006 MLD 491; Tariq Mehmood and others v. The State and others 2004 MLD 1113; Muhammad Ibrar v. The S.H.O. and others 1999 MLD 2532; Mrs. Shamsunnisa Bakhtiar and another v. The State and others 1989 PCr.LJ 2451; Abdul Khaliq and another v. Civil Judge and another 2010 YLR 408; Shamsuddin and 2 others v. The State and 3 others 2010 PCr.LJ 115; Ahmed Saeed v. The State and another 1996 SCMR 186; Muhammad Ramzan v. Rahib and others PLD 2010 SC 585; Mst. Naseer Begum'.s v. Sain and 7 others 1972 SCMR 584 and Muhammad Akbar v. The State PLD 1968 SC 281 ref.

Muhammad Ilyas Khan for Applicants.

Muhammad Farogh Naseem for the Complainant.

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

Date of hearing: 16th November, 2011.

2012 P Cr. L J 786

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

ABDUL JABBAR and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.D-718 of 2011, decided on 21st December, 2011.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302/324/353/148/149---West Pakistan Arms Ordinance (XX of 1965), S 13-D---Explosive Substances Act (VI of 1908), Ss. 3 & 4---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-e-amd, attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, rioting armed with deadly weapons, possession of illegal weapons, 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, acts of terrorism---Bail, refusal of---Gang of dacoits---Police encounter---Both accused were found in injured condition after police had an encounter with the gang of armed dacoits---No mala fide or any enmity had been alleged against the police officials to involve the accused in the case and both the accused were arrested on the spot and weapons were also recovered from them---Police encounter was genuine as record showed that nine dacoits and one police official lost their lives during the encounter---Delay in lodging F.I.R. was not sufficient ground per se to grant bail to accused without attending all other relevant circumstances---No reasonable grounds existed to believe that the accused were not guilty of non-bailable offence---Bail application of accused was dismissed in circumstances.

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

----S. 497(2)---Bail---Further inquiry---Scope and principles---Mere possibility of further inquiry existed in every criminal case but it was no ground for treating matter as one under S.497(2), Cr.P.C.---Making out a case of further inquiry by the court in a vague manner to grant bail was deprecated---Case would only fall within the scope of further inquiry under S.497(2), Cr.P.C., if the court reached to a conclusion that on material available before it, there were no reasonable grounds to believe that the accused was guilty of a non-bailable offence or an offence punishable with death, imprisonment for life or imprisonment for ten years and in the absence of such finding there would be no occasion for the court to hold that the case was one of further inquiry.

2006 SCMR 1265 rel.

Shamsuddin Kobhar for Applicants.

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

Date of hearing: 21st December, 2011.

2012 P Cr. L J 806

[Sindh]

Before Muhammad Tasnim, J

MUHAMMAD ALI and 3 others---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.1022 of 2009, decided on 29th September, 2011.

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

----S. 498---Interim pre-arrest bail---Once interim pre-arrest bail had been granted by the court, bail application be decided on merits instead of dismissing same on technical ground.

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

----S.498---High Court Benches Rules, 1987, R.7---Filing bail application directly before High Court--- Person in compelling circumstances, could approach the High Court without filing bail application before the lower judicial forum---Applicants/accused in the present case, tried their best to file bail application before the Sessions Judge, but due to fear of their arrest they tried to approach the circuit Bench of the High Court, but when they found Police available at said circuit Bench, they filed bail application at the Principal Bench of the High Court---Bail application filed by accused persons at the Principal Bench was maintainable, in circumstances.

Rais Wazir Ahmad v. The State 2004 SCMR 1167; Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427; Haji Muhammad Ali Khan and others v. The State 2010 PCr.LJ 310 and Manzoor Hussain v. The State PLD 2008 Kar. 157 distinguished.

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

----Ss. 498 & 497(2)--- Penal Code (XLV of 1860), Ss.324/147/ 148/149/504---Attempt to commit qatl-e-amd, intentional insult---Pre-arrest bail, grant of---Further inquiry---Both the sides had sustained firearm injuries---Was yet to be decided as to who was the aggressor during the crime---Three accused were allegedly having Kalashnikov at the time of occurrence, while another accused was having lathi, but as per prosecution witnesses, one of the accused made firing from his repeater upon the victim---Four empties of repeater were found, but no empties, either from pistol or Kalashnikov were found at the place of occurrence---Accused person who was alleged to have Kalashnikov at the time of occurrence, and as per prosecution case, he made firing upon the injured causing injury to him, had been admitted to bail by the Trial Court---Prima facie, the statements of prosecution witnesses were not in line with each other, and case of the prosecution was not free from doubt, which required further enquiry in terms of S.497(2), Cr.P.C.---Deeper appreciation of the record could not be gone into at the bail stage, but only tentative assessment was to be made just to find out as to whether accused were connected with the commission of offence or not---Accused having successfully made out a case of further inquiry, interim pre-arrest bail granted to accused persons, were confirmed, in circumstances.

Rais Wazir Ahmad v. The State 2004 SCMR 1167; Jaffar and others v. The State 1980 SCMR 784; Shoaib Mehmood Butt v. Iftikhar-ul-Haq and others 1996 SCMR 1845 rel.

Sultan Ahmed Siddiqui v. The State PLD 2010 Kar. 110; Nadir and 2 others v. The State 1985 PCr.LJ 247; Noor Muhammad v. The State 2009 SCMR 324; Dilmurad v. The State 2010 SCMR 1178; Kouro and another v. The State 2004 YLR 2434; Meeran Bux v. The State and another PLD 1989 SC 347; Muhammad Shahzad Siddiqui v. The State and another PLD 2009 SC 58; Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427; The State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322; Nadeem Hamid v. The State PLD 1997 Kar. 494 and Shamrez Khan v. The State 1999 PCr.LJ 74 ref.

Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427; Haji Muhammad Ali Khan and others v. The State 2010 PCr.LJ 310 and Manzoor Hussain v. The State PLD 2008 Kar. 157 distinguished.

Muhammad Ashraf Kazi for Applicants.

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

Salahuddin Panhwar for the Complainant.

Date of hearing: 29th September, 2011.

2012 P Cr. L J 837

[Sindh]

Before Imam Bux Baloch, J

ANWARUDIN---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.S-664 of 2011, decided on 2nd January, 2012.

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

----S. 497--- Penal Code (XLV of 1860), Ss. 302/324/337-H(2)/452/ 147/148/149/114--- Qatl-e-amd, attempt to commit qatl-e-amd, hurt by rash or negligent act, house-trespass after preparation for hurt, assault or wrongful restraint, rioting, rioting armed with deadly weapons, abettor present when offence is committed---Bail, refusal of---Declaration of accused to be innocent by police---Accused along with his co-accused allegedly entered the complainant's house and fired upon the deceased, who expired at the spot---Pre-arrest bail applications of accused and co-accused were declined by the Trial Court and High Court and post-arrest bail filed by accused before Trial Court was also dismissed---Accused's contentions were that there was an unexplained delay of six hours in lodging the F.I.R.; that accused and co-accused had been declared as innocent by the police during investigation and that identification of accused and co-accused was doubtful---Validity---Declaration of innocence of the accused by the police during investigation was not a valid ground for bail as police opinion was not binding upon the courts, but it could be considered after recording of prosecution evidence at the time of final adjudication of the case---Accused having failed to establish any of the grounds available for grant of bail under S.497, Cr.P.C., his bail application was dismissed. [pp. 840, 841] A, B, C & D

Iftikhar Hussain and another v. State 2004 SCMR 1185 distinguished.

Muhammad Nawaz v. State 2007 PCr.LJ 1049; Shoukat Ilahi v. Javed Iqbal and others 2010 SCMR 966; Raj Muhammad Khan v. The State 2011 PCr.LJ 1623 and Muhammad Nawaz and another v. The State 2010 PCr.LJ 787 ref.

Shoukat Ilahi v. Javed Iqbal and others 2010 SCMR 966 rel.

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

----S.497---Bail---Grounds for grant of bail in cases falling within the prohibitory clause of S.497, Cr.P.C.---Bail can be granted in such cases; firstly if the court finds reasonable grounds for believing that the accused has not committed the offence; secondly, if the accused is sick, infirm or under the age of 16 years and his remaining in jail would be detrimental to his life, or is a woman; and thirdly, if the case requires further inquiry into the guilt of accused that he has not committed a non-bailable offence etc.

Shoukat Ilahi v. Javed Iqbal and others 2010 SCMR 966 quoted.

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

----Ss. 497 & 156--- Grant and denial of bail---Police investigation---Declaration of innocence of the accused by the police during investigation in not a valid ground for grant of bail.

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

----Ss. 497 & 156--- Grant and denial of bail---Police opinion---Opinion of the police is not binding upon the court but it could be considered after recording of prosecution evidence at the time of final adjudication of the case.

Shoukat Ilahi v. Javed Iqbal and others 2010 SCMR 966 ref.

Maqbool Ahmed Awan for Applicant.

Sikandar Ali Junejo for the Complainant.

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

Date of hearing: 2nd January, 2012.

2012 P Cr. L J 869

[Sindh]

Before Muhammad Ali Mazhar, J

Mst. NASEEBAN---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 833 of 2011, heard on 19th December, 2011.

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

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotics---Bail, grant of---Further inquiry---Female accused with suckling baby---Welfare of minor---Borderline case in terms of weight of narcotic---Accused was allegedly found in possession of 1100 grams of charas---Report of jail authorities confirmed that accused was confined in central prison along with her suckling baby---Welfare of minor was incompatible with jail life and instead of detaining the innocent infant in jail for the crime allegedly committed by her mother (accused), it was in the interest of justice as well as welfare of minor, if mother was released from jail on bail---Narcotic recovered from accused weighed 1100 grams, only 100 grams above the upper limit of S.9(b) of Control of Narcotic Substances Act, 1997, which made it a borderline case and called for further inquiry into accused's guilt as it would be decided at trial whether case came within purview and scope of S.9(b) or 9(c) of Control of Narcotic Substances Act, 1997---Accused was admitted to bail accordingly.

Mst. Nusrat v. State 1996 SCMR 973 rel.

Mst. Latifan Bibi v. State 2006 PCr.LJ 25; Sherin Muhammad v. State 2006 PCr.LJ 726; Taj Ali Khan v. State 2004 YLR 439 and Gulab Hussain v. State 2009 YLR 189 ref.

(b) Islamic Jurisprudence---

----Administration of justice--- Principles enunciated by Muslim Jurists--­Principles of justice enunciated by Muslim Jurists/Imams/ Qazis are more illuminating and full of wisdom than principles enunciated by Western Jurists and Scholars---For the true and safe administration of justice in civil and criminal cases, courts in Pakistan must seek guidance from the decisions given and the principles of dispensation of justice enunciated by Holy Prophet Muhammad (P.B.U.H.), the four Caliphs, Imams and eminent Qazis and the same should be given overriding effect over Western principles of justices.

Mst. Nusrat v. State 1996 SCMR 973 quoted.

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

----S. 497---Bail---Accused with suckling child---Welfare of minor---Concept of welfare of minor is incompatible with jail life and instead of detaining the innocent infant in the jail for the crime allegedly committed by his/her mother, it would be in the interest of justice as well as welfare of minor if the mother is released from jail on bail.

Mst. Nusrat v. State 1996 SCMR 973 quoted.

Muhammad Asim Malik for Applicant.

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

Date of hearing: 19th December, 2011.

2012 P Cr. L J 882

[Sindh]

Before Shahid Anwar Bajwa, J

AHMED SHARIF and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No. S-685 of 2011, decided on 16th January, 2012.

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

----S. 498---Penal Code (XLV of 1860), Ss. 302/337-H(2)/109/147/ 148/149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-e-amd, hurt by rash or negligent act, rioting, rioting armed with deadly weapons, act of terrorism---Ad interim pre-arrest bail, confirmation of---Political rivalry---No evidence of conspiracy---Complainant's brother (deceased) had been allegedly kidnapped by the accused side, before the occurrence causing his death, but was recovered by the police authorities---Complainant had filed application in the High Court against harassment by accused side, which threatened the complainant to withdraw the kidnapping case---Accused along with their co-accused allegedly killed the complainant's brother and father when complainant's side did not withdraw the kidnapping case---F.I.R. did not state that any of the accused were present at the scene and time of occurrence---Complainant had contended that deceased had filed a petition before his death expressing apprehension at the hands of the accused and therefore it indicated prima facie a case of conspiracy---Such contention was not well-founded as neither the complainant nor the prosecution was able to point out any evidence of any conspiracy---Accused and complainant belonged to opposite political camps and such ground could be considered as a valid ground for grant of pre-arrest bail---Pre-arrest bail granted to accused was confirmed in circumstances.

Muhammad Firdaus v. State 2005 SCMR 784 and Basharat Karim v. Muhammad Ishfaq Chandoor 2007 SCMR 1546 rel.

Hyder v. State 2009 SLJ 655 and Muhammad Arshad v. Muhammad Rafique PLD 2009 SC 427 ref.

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

----S. 498---Pre-arrest bail, grant of---Principles---Political rivalry, effect of---Accused and complainant belonging to opposite political camps could be considered as a valid ground for grant of pre-arrest bail.

Muhammad Firdaus v. State 2005 SCMR 784 and Murad Khan v. Fazal-ur-Rehman and another PLD 1983 SC 82 ref.

Achar Khan Gabol for Applicants.

Miss Rizwana Jabeen Siddiqui for the Complainant.

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

2012 P Cr. L J 897

[Sindh]

Before Shahid Anwar Bajwa and Ghulam Sarwar Korai, JJ

SHAMAAL KHAN SHAH---Applicant

versus

THE STATE---Respondent

Criminal Revision Application No.D-37 and M.As. Nos. 1186 and 1815 of 2011, decided on 18th August, 2011.

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

----Preamble, Ss.4, 6 & 7---Object of Juvenile Justice System Ordinance, 2000---Ordinance had been promulgated keeping in view the welfare of juvenile and it aimed at protecting children---Said Ordinance being a piece of welfare legislation, it must be construed liberally in such a way that more people were brought within the ambit of law without violating the letter of law---If a question would arise as to age of a person and there were two opinions available, the court should lean in favour of the opinion which would go in favour of accused standing trial before it.

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

----S. 9(c)---Juvenile Justice System Ordinance (XXII of 2000), Ss.4, 5 & 7---Possessing narcotics---Trial of juvenile accused---Age of juvenile, determination of---Accused who claimed that he was child at the time of occurrence, filed application that his trial be separated from trial of other accused persons---Application was dismissed by the Trial Court---Validity---Medical Board duly constituted gave opinion that age of accused was between 18-19 years at the time of his medical examination---Assuming that the age of accused had been accurately determined by the Medical Board the alleged incident had taken place 3 months and 16 days prior to date of said medical examination---On the date when alleged offence took place, accused had been opined by Medical Board to be between the age of 18 years, 8 months and 14 days---Law was to be interpreted in favour of accused as same was for the protection of accused and such protection could only be afforded to accused, if he was given the benefit by accepting lower of the age determined by the Medical Board---Margin of one year in the opinion of Medical Board, could not be overruled---Accused had to be given the benefit of the law---Application was allowed.

Hassan Zafar v. The State 2001 PCr.LJ 1939 ref.

Yousaf v. State 1975 PCr.LJ 936; Afsar Zamin v. The State PLD 2002 Kar. 18; Abdul Qadoos v. State PLD 2005 Quetta 139 and Muhammad Jaffer Ali v. The State 2007 YLR 1679 distinguished.

Abaidullah v. Sessions Judge Jhang 2004 PCr.LJ 1881rel.

Abdul Baqi Jan Kakar for Applicant.

Naimtullah Bhurgari for the State.

2012 P Cr. L J 909

[Sindh]

Before Shahid Anwar Bajwa, J

WAJID ALI---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.625 of 2011, decided on 19th December, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/34---Qatl-e-amd---Bail, refusal of---Suspicion of illicit relationship---Alleged suicide by deceased---Hostile witness---Accused had allegedly murdered the deceased as he suspected him to have illicit relations with the sole eye-witness of the incident---Accused contended that the sole eye-witness of the incident, herself stated in her statement that deceased tried to assault her and fired upon her because of which she sustained injuries and thereafter deceased committed suicide---Validity---Deceased was found along with the injured witness of the incident with whom he was suspected of having illicit relations---Accused was arrested from the doorstep of the house, where the deceased was murdered and firearm used in the alleged crime had been recovered from him---Deceased sustained injury on the left side of the temple and the bullet went through and exited from the right side---Post mortem report revealed that there was no charring of skin on margins of entry wound because of which it could not be presumed that deceased committed suicide---Injured witness had made statement before Trial Court regarding suicide by deceased and no application had been moved by prosecution for declaring her hostile but there was other evidence with the prosecution which warranted dismissal of accused's bail application--- Accused was refused bail, in circumstances. [pp. 911, 912] A, B & C

Muhammad Javed v. The State 1999 PCr.LJ 328 distinguished.

Abdul Haque Odho for Applicant.

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

2012 P Cr. L J 918

[Sindh]

Before Syed Hasan Azhar Rizvi, J

MUHAMMAD NASEEM---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 1358 of 2011, decided on 3rd January, 2012.

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

----S. 497--- Penal Code (XLV of 1860), Ss. 420/489-F/506/34---Cheating and dishonestly inducing delivery of property, dishonestly issuing a cheque, criminal intimidation---Bail, refusal of---Denial of accused being sole proprietor of the company which issued the cheque---Absconsion of co-accused while on bail---Accused had been granted bail by Trial Court which was cancelled by court below on an application moved by complainant under S.497(5), Cr.P.C.---Accused contended that he was neither the sole proprietor of the company which issued the dishonoured cheque nor he was signatory of said cheque but accused in a previous civil suit had stated himself to be the sole proprietor of the company in question and co-accused (sons of accused) were stated to be mortgagors and guarantors of accused---National Tax Number (NTN) of accused also corroborated that he was sole proprietor of said company---Delay in lodging of F.I.R. was not relevant as documents filed by complainant were sufficient to ignore such delay---Accused and co-accused had remained absconders for years and co-accused after obtaining bail in the case misused the concession of bail and absconded and had been declared proclaimed offender---Accused was likely to abscond if he was released on bail---Record showed that accused was a habitual offender and had dishonestly issued various other cheques in the past which were dishonored on presentation---Offence for which accused was charged carried imprisonment up to three years and as such prohibition of S.497, Cr.P.C. was not attracted but is view of the mala fides of the accused and his involvement in series of cases, related to offences adversely affecting public at large, he was not entitled to bail---Bail application of accused was accordingly dismissed.

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

----S. 497--- Bail--- Principles and scope---Mala fide of accused---Effect---Cases which are not covered by the prohibitory clause of S.497, Cr.P.C., grant of bail is a rule and refusal an exception yet it cannot be denied that the bona fide or mala fide of the parties to litigation are never irrelevant---Mala fide vitiates even the most sacred transaction and each case has to be dealt with on its own facts and circumstances---Bail was refused in circumstances.

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

----S. 497---Bail---Principles---Offences affecting public at large---When a person is involved in a series of cases, related to offences badly affecting public at large, in such cases discretion of granting bail may be refused to an accused person.

Muhammad Ikram Siddiqui for Applicant.

Muhammad Rafi and Kh. Muhammad Azeem for the Complainant.

Abrar Ali Khitchi, A.P.-G. for the State.

Date of hearing: 3rd January, 2012.

2012 P Cr. L J 953

[Sindh]

Before Salman Hamid, J

NASIR UDDIN SHAHAB---Applicant

versus

THE STATE---Respondent

Criminal Miscellaneous Application No.284 of 2011, decided on 21st December, 2011.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss. 420/468/471/34---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, common intention---Application for quashing of order---Complainant/applicant had obtained financial facilities (loan) from the Bank, against which he provided a commercial building on a plot as collateral/security---Complaint provided the Bank with photocopies of title documents of other various immovable properties owned by him, to show his credit-worthiness to obtain the financial facility---Bank subsequently sent a letter to the Sub-Registrar mentioning that such immovable properties were purchased by the complainant from the Bank's financial facilities and he had executed declarations in the name of the Bank, therefore, no registration of any deed for transfer of such immovable properties was to be accepted without issuance of 'no objection certificate' (NOC) from the Bank---Complainant lodged F.I.R. against the accused (bank officials) and on investigation report submitted by police under S.173, Cr.P.C., Magistrate agreed with the police report and approved F.I.R. as 'B' class---Contention of complainant was that investigating officer essentially based his findings on the handwriting expert's report with respect to complainant's signatures, seal on the declarations and stamp, which the Magistrate accepted mechanically without appreciating that such report of expert was contested; that accused were directly charged in the F.I.R. for the commission of forgery which they corroborated by producing forged agreements and expert evidence, therefore in view of the complexity of the case, trial was imperative; that Magistrate did not appreciate a report from a different Bank, which revealed that one of the said immovable properties was purchased by the complainant on a mortgage agreement, through said different bank, before obtaining the financial facilities, therefore question of purchase of said immovable property from financial facilities of the Bank did not arise, and that interest of Bank had already been fully secured by the commercial building on the plot which was kept as collateral/security---Validity---Accused had not disputed the fact that complainant sent the photocopies of title documents of immovable properties to show his creditworthiness---Expert evidence report obtained by the complainant showed dissimilarities in the stamp and signature---Letter written by the Bank to the Sub-Registrar mentioned that NOC had to be obtained from the Bank first in respect of immovable properties but said letter did not mention that the properties were mortgaged with the Bank, which showed that letter was written with ulterior motive---Material witnesses had not been examined by the Investigating Officer and his report was wrong to the extent that one of the immovable properties was purchased through a mortgage agreement with a different Bank---Magistrate had been impressed by the handwriting expert's opinion and did not appreciate the fact that there were other documents on record which showed that the complainant never mortgaged the immovable properties mentioned in the declarations and the Bank's letter to the Sub-Registrar---Financial facility of the Bank had already been secured by the commercial building on the plot, which left no occasion for the complainant to mortgage other immovable properties with the Bank---Accused had apparently committed breach of trust by using the allegedly forged declarations against the complainant---Further examination of other witnesses and documents was required because of which it was not an open and shut case and required further probe, which was only possible if case proceeded further through trial---Impugned order of Magistrate being illegal, was set aside, and the case was sent for trial after restoration of the F.I.R.

Noor Muhammad v. The State 2005 SCMR 1958; Syed Muhammad Umer Shah v. Bashir Ahmed 2004 SCMR 1859; Anwar Ahmed v. Nafis Bano through Legal Heirs 2005 SCMR 152 and Ali Ahmed alias Ali Ahmed Mia v. The State PLD 1962 SC 102 ref.

Shafiq Ahmed Rizvi for Applicant.

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

Jaffer Raza for Accused.

I.A. Hashmi for Bank Islami.

Date of hearing: 1st December, 2011.

2012 P Cr. L J 975

[Sindh]

Before Shahid Anwar Bajwa, J

ABDUL GHANI alias GHANI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.909 and M.A. No. 4799 of 2011, decided on 20th February, 2012.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 458, 337-A(i), 337-F(i)---Qatl-e-amd, attempt to commit qatl-e-amd, house trespass by night after preparation for hurt, assault or wrongful restraint, shajjah-i-khafifah, ghayr-i-jaifah damiyah---Bail, refusal of---Dispute over refusal to give daughter's hand in marriage---Husband of deceased refused to give hand of his daughter in marriage to the minor son of the accused---Accused along with his co-accused committed the murder of the deceased to show his contempt over such refusal---Although both the eye-witnesses of the incident had submitted sworn affidavits stating that they were not present at the place of occurrence, but much value could not to be assigned to such affidavits---Behavior of accused did not entitle him to concession of bail---Bail application of accused was dismissed.

Muhammad Najeeb v. The State 2009 SCMR 448; Muhammad Nawaz alias Najja v. The State 1991 SCMR 111 and Muhammad Soomar and another v. The State 2011 PCr.LJ 1740 distinguished.

Naseer Ahmed v. The State PLD 1997 SC 347 fol.

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

----S. 497--- Bail application--- Assessment of evidence--- Filing of affidavits by witnesses during bail stage to create doubts in the prosecution case---Trend that eye-witnesses take a somersault and give statements which are different from prosecution case and file affidavits at the stage of hearing of bail application with the intention of creating doubt in the prosecution case to enable accused to get the bail was deprecated by High Court with the observation that courts has to be very careful in such cases and see that bail applications are disposed of strictly according to law on merits keeping in view the distinction between tentative assessment and actual evaluation of evidence by the Trial Court---Mind of the Court has to be satisfied where about-turn of some of the eye-witnesses in such a manner shakes up the whole prosecution case from the point of view of credibility of the remaining material---Each case, in such a situation has to be decided on its own merits.

Naseer Ahmed v. The State PLD 1997 SC 347 fol.

Shabir Ali Bozadar for the Applicant.

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

2012 P Cr. L J 986

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

SOHNO BULLO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. D-1168 of 2011, decided on 8th February, 2012.

(a) Criminal Procedure Code (V of 1898)

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 365-A, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-e-amd, attempt to commit qatl-e-amd, kidnapping or abduction for extorting property, valuable security etc., rioting armed with deadly weapons, acts of terrorism---Bail, grant of---Further inquiry---Name of accused had not been mentioned in the F.I.R. and he was implicated after eleven days of the occurrence by witnesses in their statements recorded under S.161, Cr.P.C., therefore, reasonable grounds existed that the name of accused had been implicated after due deliberation and consultation, and possibility of his false involvement could not be ruled out---Contents of F.I.R. revealed that all three prosecution witnesses were present at the place of occurrence and they had seen the unidentified accused persons but they did not nominate accused in the F.I.R. and took eleven days to acknowledge the accused and implicated him in their statements recorded under S. 161, Cr.P.C., which created doubt in the prosecution case---Case of accused required further inquiry into his guilt because of question over his identity, his presence at the spot, the role attributed to him and whether he was vicariously liable---Bail application of accused was allowed and he was granted bail.

Mudassar Altaf and another v. State 2010 SCMR 1861 distinguished.

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

----S.497(1)---Bail, grant of---Offences falling under prohibitory clause of S.497, Cr.P.C.---Factors to be considered enumerated.

Courts have to consider following factors while deciding bail applications in cases of offences punishable with death, imprisonment for life or imprisonment for ten years:--

(i) Benefit of reasonable doubt.

(ii) Identity of accused.

(iii) Role attributed to each of accused and part allegedly played by accused in occurrence.

(iv) His presence at spot.

(v) Question of vicarious liability.

(vi) Allegations mentioned in F.I.R.

(vii) Statements of prosecution witnesses recorded under S.161, Cr.P.C.

(viii) Other incriminating material collected by prosecution and

(ix) Any plea raised by accused.

Mudassar Altaf and another v. State 2010 SCMR 1861 quoted.

Ali Ahmed Khan for Applicant.

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

Date of hearing: 8th February, 2012.

2012 P Cr. L J 999

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

ABDUL RAZAK GABOLE and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.D-629 of 2011, decided on 24th January, 2012.

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

----Ss. 249-K & 265-K---Acquittal of accused---Considerations---While deciding application under S.249-A, Cr.P.C. for acquittal, the court had to consider two crucial points, whether the charge was groundless or whether there was no probability of accused being convicted of any offence---Provision of S.249-A, Cr.P.C. had given right to accused to move application for his acquittal at any stage of the proceedings, which could be even prior to framing of charge or recording of evidence, or at any subsequent stage; and there was no bar imposed by law conditional to stage of proceedings---Court, in case of dismissal of application moved under S.249-A, Cr.P.C. should discuss the entire material available on record with probable cause on the basis of which reasonable grounds appeared to continue the trial---By enacting Ss.249-A and 265-K, Cr.P.C. the Legislature in its wisdom did not leave the question of recording evidence as condition before taking action under either of the provisions; and the use of expression at any stage of the case was indicative enough of the intention that any such stage could be the very initial stage, after taking cognizance or it could be a middle stage after recording some proceedings and/or even, it could be a later stage as well---Section 249-A, Cr.P.C. empowered the Presiding Officer of the court to acquit accused at any stage of the trial; and only requirement to be fulfilled, firstly was that hearing was to be given to the prosecutor and counsel of accused; and secondly, reasons to be recorded in support of conclusion that the charge was groundless; or that no probability was of accused being convicted.

Muhammad Sharif v. State PLD 1999 Sc 1063 and State v. Asif Ali Zardari 1994 SCMR 798 rel.

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

----Ss. 365-A, 506/2, 216, 147, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), Ss.249-A & 265-K---Abduction, harbouring offender and act of terrorism---Application for acquittal---Judge Anti-Terrorism Court, passed impugned order without considering the material available on record including the statement of one of the abductees and statements of relatives of another abductee---Application filed under S.249-A, Cr.P.C. was dismissed by the court with observation that the report of re-investigation was not binding upon the court; and the Police Officials recorded their statements under S.161, Cr.P.C., in which they implicated accused and their names appeared in the F.I.R.---If the Judge, Anti-Terrorism Court, was of the view that at that stage, acquittal was not possible, then he should have considered the entire material available on record; and should have discussed with rationale as to why acquittal at that stage was not possible, but neither the Judge considered the effect and implication of statements recorded under S.164, Cr.P.C. in which abductee and their relatives did not implicate accused, nor any exact findings had been incorporated in the order warranting the dismissal of application of acquittal---Trial Court, while deciding application under S.249-A, Cr.P.C. had failed to consider and appreciate material on record and decided the application in a manner which was contrary to the very spirit and scope of S.249-A, Cr.P.C.---Whether charge was groundless or not or probability of conviction was there or not, same could only be decided once the Trial Court considered the entire material available on record---Report of Crime Branch, was not normal or routine report submitted under S.173, Cr.P.C., but it was a report based on re-investigation of entire matter which was not binding---Impugned order was set aside and application moved under S.249-A, Cr.P.C. would be deemed pending---Judge Anti-Terrorism Court was directed to deicide the application afresh, after hearing the applicants/accused and prosecution and pass a speaking order, within a period of one month on the basis of entire material available on record.

Qurban Ali Malano for Applicants.

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

Date of hearing: 24th January, 2012.

2012 P Cr. L J 1022

[Sindh]

Before Muhammad Ali Mazhar, J

JAMSHEED ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-715 of 2011, decided on 6th February, 2012.

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

----S. 497--- Bail, grant of--- Delay in conclusion of trial---Bail application of accused had been dismissed by the Trial Court with the finding that delay in conclusion of trial had been caused by the accused as whenever witnesses appeared, counsel for accused moved adjournment applications--- Effect--- Examination of case diaries clearly revealed that accused alone could not be held responsible for the delay in conclusion of his trial, because case had also been adjourned due to non-production of accused by jail authorities and on other occasions due to issuing of processes to prosecution witnesses---Period of detention of accused, excluding adjournments sought by him, was more than two years---High Court granted bail to accused with a direction to the Trial Court to conclude the trial within four months.

1985 SCMR 1509 rel.

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

----S. 497---Bail, grant of---Delay in conclusion of trial---Duties of jail authorities and prosecution with respect to the accused---Scope---Jail authorities were responsible to produce under trial prisoners in the court without any failure on their part, and similarly it was the responsibility of the prosecution to ensure the presence of prosecution witnesses so that trial could be concluded as soon as possible---If prosecution and jail authorities failed to perform their lawful duties in accordance with the law, the court could not sit idle and it was court's responsibility to ensure that prosecution and jail authorities were performing their duties properly which was necessary not only for dispensation of justice but also required for expeditious criminal administration of justice.

Zamir v. State Cr. B.A. No.675 of 2011 ref.

(c) Criminal trial---

----Delay in conclusion of trial---Effect---Intention of law was that a criminal case must be disposed of without unnecessary delay---Inordinate delay in imparting justice was likely to cause erosion of public confidence in the judicial system on the one hand, and on the other, it was bound to create a sense of helplessness, despair and feelings of frustration apart from adding to the woes of the public.

Zamir v. State Cr. B.A. No.675 of 2011 ref.

Farman Ali Kanasero for Applicant.

Miran Bux Shar for the Complainant.

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

Date of hearing: 6th February, 2012.

2012 P Cr. L J 1042

[Sindh]

Before Muhammad Ali Mazhar, J

WAQAR ALI alias ABID alias VICKY---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-69 of 2012, decided on 1st March, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.392 & 215---Robbery, taking gift to help to recover stolen property---Bail, grant of---Further inquiry---Allegation against accused and his co-accused was that they snatched the complainant's car from him along with cash and mobile phones, and when the complainant later approached the accused, they demanded ransom, which was duly paid by the complainant, but the snatched car and other items were not returned---Validity---Delay of six months in lodging of F.I.R.---One of the co-accused had already been granted bail by the Court below and the other co-accused, whose role according to the contents of the F.I.R. was same as that of the accused, was declared as innocent during the course of police investigation---First part of the F.I.R. contained no names of any accused person but in the later part of the FIR, the complainant had stated that from some source he got the information that accused along with his co-accused had committed the robbery because of which complainant approached them for payment of ransom, but complainant had failed to disclose his source for such information---Complainant failed to explain any compelling or convincing circumstances under which he was prevented from lodging the F.I.R. promptly, except the contention that he was trying to make a deal with the accused by payment of ransom to return the robbed car and other items---No identification parade had been conducted---Complainant was responsible to immediately lodge the report to the police and to set the law into motion and not to wait six months for making attempts to settle the dispute personally with the accused, and if the police was not registering the F.I.R. immediately, recourse was open to him to approach the Justice of Peace and avail the remedy provided under S.22-A, Cr.P.C.---Case of accused fell within the ambit of further inquiry and he was admitted to bail, accordingly.

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

---S. 154---Penal Code (XLV of 1860), Ss.392 & 215---Robbery, taking gift to help to recover stolen property---Paying ransom to accused persons for recovery of robbed articles instead of promptly lodging an F.I.R.---Such action on part of the complainant was deprecated by the High Court with the observation that under S.154, Cr.P.C., it was the responsibility of the police officer to immediately record the statement of a person in case any cognizable offence was reported but at the same time, it was also the responsibility of every person/citizen to immediately lodge the report to the police to set the law into motion and not to wait for months for making attempts to settle the dispute personally with the accused/offenders

Abdul Sattar G. Luhrani for Applicant.

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

Date of hearing: 23rd February, 2012.

2012 P Cr. L J 1089

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

ALLAH DIWAYO---Appellant

versus

THE STATE and 5 others---Respondents

Criminal Acquittal Appeal No.D-58 of 2011, decided on 10th January, 2012.

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

----S.417(2-A)---Penal Code (XLV of 1860), Ss.302, 143, 506/2 & 34---Qatl-e-amd, criminal intimidation, common intention---Appeal against acquittal---Scope---Witnesses who adduced the ocular testimony, being related to the complainant, possibility of their being interested could not be ruled out---Ocular testimony was not inspiring-confidence---When accused was acquitted from the charge by a court of competent jurisdiction, then double presumption of innocence was attached to its order with which a superior court would not interfere, unless impugned order was arbitrary, capricious and fanciful---Law relating to appraisal of evidence in appeal against acquittal was stringent and presumption of innocence was double and multiplied after a finding of not guilty recorded by competent court of law---Such finding could be reversed, upset and disturbed except when the judgment was found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading and non-reading of evidence---Law required that the judgment of an acquittal would not be disturbed, even though second opinion could be reasonably possible---Ocular evidence in the case, alone was not sufficient to connect accused---Ocular testimony regarding the alleged injuries caused by accused persons, were neither corroborated nor in conformity with the medical evidence adduced by the doctor---Prosecution had failed to bring home the guilt against accused persons beyond any shadow of doubt---Accused, in circumstances, were rightly acquitted by the Trial Court; and the acquittal order was based on sound and cogent reasoning, which did not require any interference by High Court---While examining defect in the order of acquittal, substantial weight should be given to the finding of the lower court, whereby accused were exonerated from the commission of crime---Prosecution, in the present case, could not substantiate the accusation reasonably connecting accused persons with the crime in question---Hardly any impropriety, illegality or infirmity in the impugned judgment were found, which could warrant interference--- Appeal against acquittal was dismissed, in circumstances.

PLD 2009 SC 53 rel.

(b) Criminal trial---

----Medical evidence---Evidentiary value---Scope---Burden of proof---Medical evidence could only establish the type of weapon used, the seat of injury and the time elapsed between receipt of injury and medical examination---Medical evidence, could never be primary source of evidence for the crime itself, but was only corroborative which could confirm the ocular evidence with regard to the seat of injury, nature of injury and kind of weapons used in the occurrence; and it could not connect accused with commission of crime---Medical evidence adduced by the prosecution had great corroborative value and proved that the injuries could have been caused in the manner alleged and death could have been caused by the injuries, so that the prosecution case being consistent with matters verifiable by medical science, there was no reason as to why the eye-witnesses should not be believed---Defence could make use of medical evidence to prove that the injuries could not possibly have been caused in the manner alleged or death could not possibly have been caused in manner alleged by the prosecution; and if it could do so, it would discredit the eye-witnesses---Doctors were experts in their own right and when they examined a person and gave opinion, it did not normally mean that their opinion was not correct---Significance of the evidence of the doctor lay vis-à-vis the injuries appearing on the body of the deceased persons and likely use of the weapon---Prosecutor was bound and obliged to have the corroborative evidence available on record from the other prosecution witness---Ordinarily, the value of medical evidence was only corroborative---No hard and fast rule that medical evidence was always to be preferred to ocular evidence---Expert evidence, whether medical or of ballistic expert, was entirely in the nature of confirmatory or explanatory of direct or other circumstantial evidence; and was of not much significance in the presence of creditworthy evidence.

Bagh Ali v. Muhammad Anwar 1983 SCMR 1992; Sardar Baig v. State 1978 PCr.LJ 690; PLD 1988 Kar. 521 and Gul Nawab Khan v. State PLD 1980 Pesh. 193 ref.

Ali Gul Abbasi for Appellant

Zulifquar Ali Tatoi, D.P.-G. for the State.

2012 P Cr. L J 1102

[Sindh]

Before Muhammad Tasnim, J

ABDUL SHAKOOR and 3 others---Applicants

versus

THE STATE---Respondent

Bail Application No.980 of 2011, decided on 6th September, 2011.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 322/337-H/427/34---Qatl-bis-sabab, hurt by rash or negligent act, mischief causing damage to the amount of fifty rupees, common intention---Bail, grant of---Further inquiry---Collapse of building caused by sewerage water---Allegation contained in F.I.R. was that numerous complaints were made to the accused persons for the maintenance of the building but no action on their part was taken, due to which the building collapsed---Questions as to whether accused persons were responsible for maintaining the building and same had collapsed due to their inaction and whether they had committed an unlawful act which caused the building to collapse were yet to be determined---Section 322, P.P.C. provided no punishment of any period except for payment of diyat and it was yet to be determined whether the punishment of payment of diyat would bring the case of accused persons within the prohibitory clause of S. 497, Cr.P.C.---Accused had also been charged under Ss.322 and 337-H of P.P.C., which were bailable---Legal heirs of deceased persons had filed affidavits in court, exonerating the accused persons from the charge--- Tentative assessment of record showed that accused had made out a case of further inquiry in terms of S.497(2), Cr.P.C.---Accused were admitted to bail, in circumstances.

Yousuf Khan v. The State 2000 PCr.LJ 203; Tariq Mahmood v. The State 2005 YLR 1968; Mukhtiar Hussain Shah v. The State 2007 YLR 2832; Rehmat Ali and another v. The State 1979 SCMR 30; Muhammad Nawaz alias Najja v. The State 1991 SCMR 111 and Syed Zahid Ali v. The State 1993 PCr.LJ 1489 rel.

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

----Ss. 497(2)---Penal Code (XLV of 1860), Ss. 322/337-H/427/34---Qatl-bis-sabab, hurt by rash or negligent act, mischief causing damage to the amount of fifty rupees, common intention---Bail---Filing of affidavits exonerating the accused--- Scope--- Such affidavits can be taken into consideration at time of deciding bail application.

Rehmat Ali and another v. The State 1979 SCMR 30; Muhammad Nawaz alias Najja v. The State 1991 SCMR 111 and Syed Zahid Ali v. The State 1993 PCr.LJ 1489 ref.

Chaudhry Abdul Rasheed for Applicants

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

2012 P Cr. L J 1122

[Sindh]

Before Salman Hamid, J

HAQ NAWAZ---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.1382 and M.A. No.10481 of 2011, decided on 23rd December, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Passports Act (XX of 1974), S. 6(1)(e)---Using a forged, altered or tampered passport---Bail, grant of---Accused was alleged to have extended the expiry date of his passport by tampering with the same---Accused was present in a foreign country and his passport was in the custody of the Kafeel, who is the custodian of the passport of any person who is employed or is present there for any other purpose and the same is retained by such Kafeel till such time the visa expires and upon such expiration, either the visa is extended or the person is sent back to his home country and the passport is handed over to him at the airport---Tampering or making any change in the passport was not beneficial to the accused and he would not have come back to Pakistan and would have continued to stay in Saudi Arabia if he was in knowledge of such tampering---Offence with which accused was charged did not fall within the prohibitory clause of S.497, Cr.P.C.---Accused was entitled to bail as a matter of right and not as a matter of grace, therefore, his bail application was accepted and he was enlarged on bail.

Rana Muhammad Iftikhar for Applicant.

S. Qamarul Haq, Standing counsel for the State.

2012 P Cr. L J 1132

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

AKRAM alias AKROO---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.D-227 of 2011, decided on 18th January, 2012.

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

----S. 497--- Penal Code (XLV of 1860), Ss. 365-A, 395, 506, 215 & 34---Kidnapping or abduction for extorting property, valuable security etc., dacoity, criminal intimidation, taking gift to help to recover stolen property---Bail, refusal of---Delay in lodging F.I.R. was a natural phenomenon as in cases of abduction or kidnapping for ransom invariably the families are held in terror and they always try as long as hope remains alive, to get the alleged abductee released and are therefore quite reluctant to go to the police because of fear for life of the abductee---Accused was named in the F.I.R. and in view of the clear statement made by abductee under S.164, Cr.P.C. (after his release) outlining the details of his abduction and statements of witnesses under S.161, Cr.P.C., there appeared to be sufficient material to connect the accused with the offence alleged against him---One of the co-accused had been granted bail and another was acquitted, but their orders revealed that question regarding clear statement of abductee was not pointed out to the court and both the orders were based on no opposition by the prosecution, therefore, rule of consistency was not attracted in the circumstances---Bail application of accused was dismissed.

Bahar Ali and 2 others v. The State and another PLD 2008 Pesh. 28; Muhammad Shaheen alias Shan v. The State 2009 PCr.LJ 21 and Baloo alias Piyar Ali v. The State 2000 PCr.LJ 1508 distinguished.

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

----Ss. 365-A---Kidnapping or abduction for extorting property, valuable security etc.---Vicarious liability---Scope---Every member of a gang which abducts a person is equally and vicariously liable and the question whether one caught hold of a hand or not would be immaterial--- Specific role of accused is not the prime consideration, if the accused is alleged to be a member of an abduction gang.

Altaf Hussain Chandio for Applicant.

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

2012 P Cr. L J 1145

[Sindh]

Before Muhammad Tasnim, J

AHMED ALI and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.S-698 of 2011, decided on 4th November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/34---Qatl-e-amd---Bail, grant of---Further inquiry---Matrimonial dispute---Delay of two days in lodging F.I.R. which had not been explained by the prosecution---No recovery had been effected from the accused---Contents of F.I.R. revealed that accused were ex-father-in-law and ex-brother-in-law of the deceased, respectively---Prosecution witness who was sleeping besides the deceased at the time of his murder, had stated in his statement under S.161, Cr.P.C. that accused persons committed the murder with muffled faces---Delay of four days in inspection of the site of occurrence and preparation of Mashirnama had not been explained---Empties from place of occurrence had not been collected by the police but same were collected by the complainant party which handed them over to the police on the day of inspection of the site---Dead body of deceased was brought to the hospital on the day of occurrence, therefore, it could be said that occurrence was well within the knowledge of the police and the complainant party, but still the F.I.R. was lodged after two days of the occurrence---Prosecution case was doubtful and required further inquiry as envisaged under S.497(2), Cr.P.C.---Bail application of accused was accepted and they were admitted to bail.

Syed Tarique Ahmed Shah for Applicants.

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

Syed Hamad Ali Shah for the Complainant.

2012 P Cr. L J 1181

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

MUHAMMAD ARSHAD---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. D-461 of 2011, decided on 27th January, 2012.

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

----S. 498---Direct pre-arrest bail application before High Court---Scope---State Counsel and counsel for the complainant raised objection that applicant/accused could not file direct pre-arrest bail application in the High Court without first approaching the Trial Court---File of the case showed that proceedings were stayed in the transfer application---Said transfer application was withdrawn by the complainant, while interim pre-arrest bail was granted to accused, during the period when proceedings in the Trial Court were stayed by the court---Accused could not possibly move bail application in the Trial Court in such exceptional circumstances---No rationale or lawful justification existed to dismiss bail application and direct him to approach Trial Court to cater need of procedure---Order accordingly.

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

----S. 498---Penal Code (XLV of 1860), Ss.302, 324, 337-H(2), 452 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-e-amd, attempt to commit qatl-e-amd, hurt by rash or negligent act, house-trespassing and terrorism---Pre-arrest bail, grant of---Four co-accused had been granted bail by the Trial Court, who allegedly fired burst of KK upon a police constable; and accused was attributed same role which was in the F.I.R.---Was yet to be proved during trial that out of these persons including the accused who allegedly fired burst of KK upon the constable and caused fatal injury---Eye-witness in his statement under S.161, Cr.P.C., did not support the case of prosecution; his statement was recorded after delay of one month and four days---Injured person also in his affidavit had exonerated the accused---Other prosecution witnesses in their statements did not disclose that during the incident complainant was present in the house or at the scene---Neither State Counsel nor the counsel for the complainant disputed or controverted said factual position---Common intention at bail stage was normally one of further inquiry, unless other compelling reasons existed to reach a different conclusion---All said crucial questions thus required further inquiry to prove the guilt of accused---Benefit of doubt would go to accused even at bail stage---Interim bail granted to accused was confirmed, in circumstances.

Dilmurad v. State 2010 SCMR 1178; Jaffar v. State 1980 SCMR 784; Ahmed v. State 2007 PCr.LJ 987; Abdul Majeed v. State 2002 PCr.LJ 844; PLD 2009 SC 427 and 1990 SCMR 346 ref.

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

----Ss. 497(2) & 498---Bail before arrest---Essentials---Bail before arrest could not be granted, unless the person seeking it would satisfy the conditions specified through subsection (2) of S.497, Cr.P.C., and would establish the existence of reasonable grounds leading to a belief that he was not guilty of the offence alleged against him; and there were in fact sufficient grounds warranting further inquiry into his guilt.

Rana Muhammad Arshad v. Muhammad Rafique PLD 2009 SC 427 rel.

Zulfiqar Ali Sangi for Applicant.

Noor Muhammad Soomro for the Complainant.

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

Date of hearing: 18th January, 2012.

2012 P Cr. L J 1218

[Sindh]

Before Shahid Anwar Bajwa and Ahmed Ali M. Shaikh, JJ

MISRI---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.D-11 of 2003, decided on 2nd March, 2012.

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

----Ss. 365-A/109---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Kidnapping or abducting, abetment and act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution witness had made certain improvements with regard to identity of accused---Accused and complainant party belonged to the same community were relatives inter se and were on visiting terms since their forefathers---Though the parties were known to each other prior to the incident and F.I.R. was registered after recovery of abductee, but none amongst the accused was nominated in the F.I.R.---Neither accused was put to identification parade nor his features or marks of identification were given in the F.I.R., which was belated by 26 hours---Delay in lodging the F.I.R. in cases of kidnapping for ransom was not fatal to prosecution case, though in some cases it would militate against benefit of prosecution---No adverse inference could be drawn against the prosecution on the ground of delay alone---Evidence of identification parade, though was not the sole criterion to prove the case against the unknown assailants and the prosecution could prove charge against them, if the identity of accused was sufficiently proved by other convincing evidence, i.e. direct or circumstantial evidence, but in the present case, either the names of accused were introduced at trial or same were introduced at the instance of prosecution witness---Name of accused was disclosed at the trial---Co-accused had been acquitted by the Trial Court and no appeal had been filed against said acquittal---Prosecution witnesses while appearing in court made improvements in their statements to strengthen prosecution case, such improvements in their statements had caused serious doubt in veracity of such witnesses---Such witnesses did not seem to be worthy of reliance and had created doubt about their truthfulness---Prosecution having failed to prove its case against accused beyond any shadow of doubt, conviction and sentence awarded to accused, were set aside and he was acquitted and released, in circumstances.

Arif Nawaz Khan v. State PLD 1991 FSC 53 rel.

(b) Criminal trial---

----Benefit of doubt---For extending benefit of doubt, it was not necessary that there should be many circumstances creating doubt---Single instance creating reasonable doubt in a prudent mind about the guilt of accused, would make him entitled to its benefit, not as a matter of grace and concession, but as a matter of right.

Shahid Abbas v. Shahbaz and others 2009 SCMR 237 and Tariq Pervez v. State 1995 SCMR 1345 rel.

Abdul Rehman Bhutto for Petitioner.

Altaf Hussain Surahio, State counsel.

Date of hearing: 17th February, 2012.

2012 P Cr. L J 1263

[Sindh]

Before Shahid Anwar Bajwa, J

MANTHAR and 3 others---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.362 of 2011, decided on 6th March, 2012.

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

----Ss. 302/149 & 337-F(ii)---Qatl-e-amd, unlawful assembly, common object and causing 'badiah' to any person---Appreciation of evidence---Counsel for accused had contended that F.I.R. was recorded after about 11 hours of the occurrence; and that Mashirnama indicated that F.I.R. was lodged after investigation---Fact that some investigation was conducted before recording of F.I.R., would not, standing alone, be sufficient to come to the conclusion that the incident as alleged had not occurred---Such situation could only be held to create small dents to the story of the prosecution; and its effect in totality had to be evaluated in the light of other pieces of evidence---Allegations against accused in the F.I.R. were that he was one of the 9 persons and was armed with shotgun and that said accused fired with shotgun at the injured which hit him in the elbow of right arm who made a cry and fell down---Accused was not alleged to have repeated his fire---F.I.R. and evidence showed that those accused who were armed with hatchets and lathies gave hatchet and lathi blows to injured---Evidence did not show that said accused participated in the murder of the deceased---No evidence had been brought about that accused, prior to the incident, decided to murder deceased and that accused was part of the conspiracy---Mere fact that accused was with those persons who went to murder the deceased, was not sufficient to charge him with murder and that he knew that murder was to be committed---Allegation against accused for the offence under S.302, P.P.C. was not proved against accused---Witnesses were unshaken and unanimous on the point that accused was armed with a shotgun and he fired at the injured---Nothing was wrong as far as conviction and sentence of accused under S.337-F(ii), P.P.C. was concerned---Conviction and sentence of accused under S.337-F(ii), P.P.C. was maintained, while he was acquitted of offence under S.302(c), P.P.C.

Mashal Khan and another v. The State 1997 PCr.LJ 478; Jamshed alias Jammi v. The State and others 2004 PCr.LJ 1239; Hadi Bakhsh v. The State PLD 1963 Kar. 805; Ram Narain v. State of Punjab AIR 1975 SC 1727; Bagh Ali v. Muhammad Anwar and another 1983 SCMR 1292; Yousif v. The State PLD 1988 Kar. 521; Esso and others v. The State 2011 YLR 913; Ayub Masih v. The State PLD 2002 SC 1048; Faheem Ahmed Farooqui v. The State 2008 SCMR 1572; Taha v. The State 2003 YLR 166 and Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 ref.

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

----Ss. 302/149 & 337-F(ii)---Qatl-e-amd, unlawful assembly, common object and causing badiah to any person---Appreciation of evidence---Allegation against co-accused was that though he was empty-handed, but he instigated his companions to catch hold of the complainant party and not to spare them and to kill them and thereafter the incident of murder as alleged had occurred---Two witnesses had been unanimous on the point that instigation was given by said co-accused and it was upon his instigation that three persons fired at the deceased---Medical evidence corroborated the ocular evidence---Evidence had successfully established that co-accused went with the unlawful assembly though empty handed but acted as a leader; his conviction and sentence in offence under S.302(c), P.P.C. was maintained---Evidence had indicated that instigation by co-accused was to kill and if he had also intention to cause injury to injured, while as was alleged in the F.I.R., lathi and hatchet blows were being given, said co-accused did not intervene---Co-accused could not be said to be complicit in causing injury to injured, conviction of said co-accused for an offence under S.302(c), P.P.C., was maintained, but his conviction and sentence under S.337-F(ii), P.P.C., were set aside, in circumstances.

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

----Ss. 302/149 & 337-F(ii)---Qatl-e-amd, unlawful assembly, and causing badiah, to any person---Appreciation of evidence---Co-accused were alleged to be armed with lathi and hatchet respectively and it was alleged that they had given lathi and hatchet blows to the injured, who had already been hit at on his arm by the accused---No lathi or hatchet injury was described in medical evidence---No specific injury was stated in the F.I.R. or by any witness having been caused by lathi or hatchet blows---Conviction and sentence of said co-accused persons under S.337-F(ii), P.P.C., could not be maintained; their convictions and sentences for offences under S.302(c), P.P.C., was also not maintained.

(d) Criminal trial---

----Witness---Mere fact that the witnesses were related to each other, would not necessarily made them interested witnesses; their evidence could not be brushed aside merely for the reason that they were related to each other--- Sufficient corroboration of such evidence, must be sought through other pieces of evidence available on record.

Muhammad Ashraf Kazi for Appellants.

Muhammad Safeer for the Complainant.

Abdul Rehman Kalochi, Assistant Prosecutor-General Sindh for the State.

Date of hearing: 18th November, 2011.

2012 P Cr. L J 1314

[Sindh]

Before Syed Hasan Azhar Rizvi, J

Mir MUHAMMAD ANWER and 4 others---Applicants

Versus

THE STATE and another---Respondents

Criminal Transfer Application No.S-90 of 2011, decided on 23rd January, 2012.

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

---S. 526---Penal Code (XLV of 1860), Ss. 302/109/147/148/149---Qatl-e-amd, abetment, rioting, rioting armed with deadly weapons---Application for transfer of case on grounds of community/tribal rivalry---Apprehension of danger to life--- Applicants had sought the transfer of pending criminal case against them on the ground of apprehension of danger to their lives at the hands of a rival community/tribe---Validity---No specific date, time and place had been mentioned by the applicants on which persons from the rival community advanced any threat to them and no such authority had been mentioned, which applicants approached to lodge the complaint---Murder case could not be transferred simply on apprehension of danger to life---No material or report of any complaint was furnished before the court to establish security problems in the area due to the community/tribal rivalry---Applicants had neither alleged any bias against the judge nor had shown any ground of mistrust or lack of confidence against him, therefore, transfer of case on the ground of community/tribal rivalry and apprehension of danger to life was unwarranted--- Transfer application was dismissed in circumstances.

Alamzeb v. Kamal Nasir PLD 2004 SC 362; Gul Muhammad v. Zawar Hussain 2000 PCr.LJ 1217 and Noor Ahmed v. State 2009 MLD 22 rel.

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

---S. 526---Penal Code (XLV of 1860), Ss. 302/109/147/148/149---Application for transfer of case---Scope---Apprehension of danger to life---Simply on apprehension of the applicants for danger to their lives, a murder case could not be transferred.

Ali Ahmed Kurd for Applicants.

Mushtaq Ahmed Abbasi, D.D.P.P. for the State.

Abdul Hameed Bajwa for Respondent No.2.

2012 P Cr. L J 1324

[Sindh]

Before Syed Hasan Azhar Rizvi, J

BACHAL and 3 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 1235 of 2011, decided on 21st March, 2012.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302/34---Qatl-e-amd, common intention---Bail, refusal of---Tentative assessment of record revealed that the accused and co-accused came to the place of incident, duly armed with weapons and both of them had been assigned the role of direct firing upon the deceased persons with intention to commit their murder---F.I.R. had been promptly lodged and prima facie ample incriminating material was available on record connecting the accused and co-accused with the crime imputed to them---Contradictions/ conflicts between medical evidence and ocular evidence were very minor and required deeper appreciation of evidence, which was not permissible at the time of grant of bail---Bail application was declined, in circumstances.

Criminal Bail Application No.39 of 2011; Jaffar and others v. The State 1980 SCMR 784; Dilmurad v. The State 2010 SCMR 1178; Syed Amanullah Shah v. The State and another PLD 1996 SC 241; Master Ghulam Muhammad and others v. The State 2010 MLD 877 and Muhammad Hassan v. The State 2010 PCr.LJ 572 distinguished.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/34---Qatl-e-amd, common intention---Bail, grant of---Further inquiry---Accused and co-accused had been nominated in the F.I.R. having weapons in their hands but no allegation of direct firing upon the deceased persons had been attributed to them---No active or specific role of causing specific injury had been assigned to the accused and co-accused in the F.I.R., and prima facie their case was one of further inquiry into their guilt---Bail was granted to accused and co-accused, in circumstances.

Criminal Bail Application No.39 of 2011; Jaffar and others v. The State 1980 SCMR 784; Dilmurad v. The State 2010 SCMR 1178; Syed Amanullah Shah v. The State and another PLD 1996 SC 241; Master Ghulam Muhammad and others v. The State 2010 MLD 877 and Muhammad Hassan v. The State 2010 PCr.LJ 572 distinguished.

Fareed Ahmed A. Dayo for Applicants.

Complainant present in person.

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

Date of hearing: 21st March, 2012.

2012 P Cr. L J 1342

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

BAKSHOO---Applicant

Versus

THE STATE---Respondent

Criminal Transfer Application No.79 of 2011, decided on 10th January, 2012.

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

----Ss. 6, 7 & 8---"Terrorism"---Essential ingredients---In order to determine as to whether an offence would fall within the ambit under S.6 of Anti-Terrorism Act, 1997, it would be essential to have a glance over the allegations made in the F.I.R., record of the case and surrounding circumstances; it was also necessary to examine whether the ingredients of alleged offence had any nexus with the object of the case as contemplated under Ss.6, 7 & 8, Anti-Terrorism Act, 1997---Whether a particular act was an act of terrorism or not, the motivation, object, design or purpose behind said act, and whether the said act had created a sense of fear and insecurity in the public, or any section of public or community or in any sect was to be seen---Striking of terror was sine qua non for the application of the provisions as contained in S.6 of Anti-Terrorism Act, 1997, which could not be determined without examining the nature, gravity and heinousness of the alleged offence.

PLD 2009 SC 11 rel.

(b) Interpretation of statutes---

----Interpretation should be placed in a manner which could advance the object and purpose of the mischief for which the law in question might have been enacted; and not to construe in a manner, which could defeat the object of law.

PLD 2006 SC 109 and PLD 1995 SC 1 rel.

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

----Ss. 7 & 23---Criminal Procedure Code (V of 1898), Ss.526/561-A---Penal Code (XLV of 1860), Ss. 324/353/147/148/149---Attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, rioting, common object and terrorism---Application for transfer of case---Accused persons intimidated the public servants to refrain from discharging their lawful duties, which also involved serious violation against the members of the Police force---Challan, in circumstances, was rightly submitted in the Anti-Terrorism Court for trial---F.I.R. showed that accused persons had first attacked on the Police party and in the retaliation, the Police party started firing---Plea of self-defence advanced by the counsel for accused/applicant, was without any rationale or justification---Action which involved serious coercion or intimidation of public servant in order to force him to discharge; or to refrain from discharging his lawful duties or involved serious violation against a member of the police force, armed forces, civil armed forces, or a public servant, was terrorism as defined under S.6(1) of Anti-Terrorism Act, 1997---In the present case, alleged encounter took place with the dacoits and if right of self-defence in those peculiar circumstances of the case accepted that would tantamount to allow an unbridled licence to the dacoits or hardened criminals to kill, coerce and or intimidate the police force and public servants to refrain them from discharging their lawful duties which was against the scope and spirit of right of self-defence guaranteed; or as envisaged under the provisions of P.P.C.

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

----S. 99---Constitution of Pakistan, Art.9---Right of self-defence---General limitations---Security of person---Scope---Police encounter---Right of self-defence was always open to general limitations imposed by S.99, P.P.C.---No right of private defence was available if the public servant had acted in good faith and under colour of his office---Right of self-defence was to be used as a shield to ward off on warranted attack to person or property, but it could not be used as vehicle for provoking an attack---Right of self-defence was to be exercised as a preventive measure and not for launching an attack for retaliatory purpose---Court would have to examine such question with reference to the facts of each case and keeping in view the state of mind of the person placed in the position of the person attacked who exercised the right of private defence---Art.9 of the Constitution---Encounter would not entitle a Police party to kill indiscriminately the persons who were allegedly involved in the encounter as the basic requirement provided in S.99, P.P.C. and in view of the importance and magnitude of Art.9 of the Constitution.

1992 SCMR 1983 rel.

Ali Ahmed Khan for Applicant.

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

Date of hearing: 20th December, 2011.

2012 P Cr. L J 1361

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

ROSHAN ALI and another---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeal No.D-68, Criminal Appeal No.D-69 and Conf. Case No.D-1 of 2010, decided on 22nd February, 2012.

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

----Ss. 302(b), 380 & 511---Qatl-e-amd, theft in dwelling house, attempt to commit offences---Appreciation of evidence---Co-accused though was alleged to have been armed with a gun, but there was no allegation against him of ineffective firing---Offence under S.302(b), P.P.C., against the co-accused was not proved for the reasons; that none of the witnesses had stated anything regarding common intention of committing murder and had implicated him in that regard; that it was stated that as soon as hakal was given, said co-accused and others ran out---Had there been any preplanning to commit murder they would not have run; that after they ran out, it became a sort of situation where everybody was relying on agility of their heels---Co-accused ran away without firing either in the air or at anyone else---Had he intended to commit murder or had there been common intention to commit murder, he would not have just run away, but would have stopped and then tried to throw back the persuers---Conviction of co-accused under S.302, P.P.C., could not be maintained---Position was different with regard to conviction of the accused under Ss.380 & 511, P.P.C.---All the witnesses had been unanimous that all the four persons came inside the house; and then the residents woke up they found them untethering the cattle---Eye-witnesses had clearly stated in that regard; they were cross-examined by the counsel for accused and no question regarding that aspect was asked---Visible marks were noticed of entering and coming on the wall---Prosecution had successfully established its case against the accused under Ss.380 & 511, P.P.C.; his conviction and sentence on that charge was maintained, in circumstances.

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

----Ss. 302(b), 380 & 511---Qatl-e-amd, theft in dwelling house, attempt to commit offences--- Appreciation of evidence---Sentence, reduction in---According to F.I.R. accused had directly fired from his gun which hit father of the complainant---Medical evidence was corroborated by the ocular evidence as far as weapon was concerned---Prosecution case was fully supported by arms used and the distance from which it was fired--- Story of prosecution against said accused, was not shaken---Recovery was only a corroborative piece of evidence and presence of it, or absence of the same could not give all the other facts and evidence, lead to either conviction or acquittal---Prosecution had successfully established its case beyond reasonable doubt against accused for offences under Ss. 302(b), 380 & 511, P.P.C.---Accused at the time of incident being 20/21 years of age, was a young man still at the threshold of his youth and his first instinct was to run away and there was no previous design or intention to commit murder---No previous criminal record of accused was on the file---Considering young age of accused and other factors, ends of justice would be served if sentence of death was converted into imprisonment for life---Sentence was modified from death to imprisonment for life.

Mir Dad v. The Crown 1969 SCMR 419; Muhammad Ramzan v. State 2006 MLD 1785; Fakir Muhammad v. State 2006 MLD 867; Haji v. State 1976 SCMR 20; Falak Sher v. State 2008 PCr.LJ 837; Muhammad Arif v. State 2006 PCr.LJ 1827; Yousaf Shah v. Ghulam Jan Khan 1975 SCMR 464; Ghulam Muhammad v. State 1976 PCr.LJ 1402; Mirza v. The Crown PLD 1952 Lah. 609; Muhammad Nadeem v. State 2011 SCMR 872 and PLD 2003 SC 786 ref.

Ghulam Shabir Dayo for Appellant No.2.

Riaz Ahmed Soomro for Appellant No.1.

Shaikh Amanullah for the Complainant.

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

Dates of hearing: 7th September and 21st December, 2011.

2012 P Cr. L J 1388

[Sindh]

Before Shahid Anwar Bajwa, J

MUHAMMADUDDIN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.S-409 and S-1047 of 2011, decided on 30th January, 2012.

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

----S. 498---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Qatl-e-amd, attempt to commit qatl-e-amd, rioting, common object---Interim pre-arrest bail, confirmation of---Accused was an Advocate of High Court, and it would certainly be a case of humiliation, if a person belonging to an honourable profession, was sent behind bars, particularly when on merits, his case for bail was made out---F.I.R., showed two allegations against accused, firstly, he was member of that nine member group; and secondly after deceased had been murdered, other co-accused with intention to kill, fired at other members of the complainant party, but they by falling down evaded the fire---Was yet to be seen that "others" who fired at other members of the complainant party had the intention to kill or merely to cause scare---No specific role of any of the "others" was stated in the F.I.R. or even in the statement of witnesses recorded under S.161, Cr.P.C.---Accused being entitled to bail, his interim pre-arrest bail was confirmed, in circumstances.

(b) 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 and common object---Bail, refusal of---Allegation against co-accused in F.I.R. was that he made Repeater and Rifle fire on deceased, who raised cries and fell down---Co-accused was said to be of 71 years of age---Mere oldage was not a ground sufficient for grant of bail---Whether the Mashirs were reliable and truthful or not, what was the distance from which fire was made; and what did recovery of cushion wad mean, were the issues which required deeper appreciation of evidence and such an exercise could not be undertaken at the stage of bail---Contention that it was tendency that entire family was involved, was also not relevant for the case against said co-accused because allegation against him was that he along with one co-accused fired at the deceased; and in the F.I.R. itself, it was stated that deceased had received injuries on the front of his head, on forehead, on eyes, on right hand and leg---Prima facie there seemed to be material available on record to connect the said co-accused with the offence alleged against him---Bail application of co-accused was dismissed, in circumstances.

Muhammad Nazeer v. Master Muhammad Gul and another 1992 PCr.LJ 674; Muhammad Hashim Khoso v. The State 2011 PCr.LJ 1580; Meeran Bux v. The State and another PLD 1989 SC 347; Amir Ali v. The State 1984 SCMR 521; Haji Rehmat Khan v. The State 1968 PCr.LJ 1905; Nazir Ahmed v. The State 1993 SCMR 1993; Ali Nawaz v. The State 2001 YLR 341; Muhammad Sadiq v. The State 1996 SCMR 1654; Abdul Rehman v. Javed 2002 SCMR 1415; Muhammad v. The State 1998 SCMR 454; Faraz Akram v. The State 1999 SCMR 1360; Amanat Ali v. The State 1993 SCMR 1992; Muhammad Sadiq v. The State 1996 SCMR 1654; Said Akbar v. Gul Akbar 1996 SCMR 931; Muhammad Saleheen v. Arshad Siddiq 1997 SCMR 1829; Atta Muhammad v. The State 1995 SCMR 599; Ghulam Nabi and another v. The State 1998 PCr.LJ 968; Khalid Sarwar v. The State 1998 PCr.LJ 1131; Muhammad Jabbar v. Shah Daraz Khan and another 2009 PCr.LJ 370; Nisar Ahmed v. The State 1970 PCr.LJ 1171; Ghulam Haider v. The State 1970 PCr.LJ 640; Peer Mukaram-ul-Haq v. National Accountability Bureau (NAB) 2006 SCMR 1225; Arshad Mahmood and another v. Sarfraz and others 1996 SCMR 861; Sakhi Muhammad v. The State 1973 PCr.LJ 397; Muhammad Saeed Mehdi v. The State and 2 others 2002 SCMR 282; Ashfaq Ahmed v. The State 2011 SCMR 1435; Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82; Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427; Riaz Ahmed v. The State 2009 SCMR 725; Bahadur v. Muhammad Latif 1987 SCMR 788; Muhammad Saddique v. Imtiaz Begum and 2 others 2002 SCMR 442; Waqar-ul-Haq v. The State 1985 SCMR 974; Mudassar Altaf and another v. The State 2010 SCMR 1861; Dr. Abdullah Hamid Mehmood v. The State PLD 2006 Kar. 393; Mahmood v. The State and another 2011 YLR 1652; Abdullah Khan v. The State 2006 PCr.LJ 1350; Shoukat Ilahi v. Javed Iqbal and others 2010 SCMR 966; Ehsan Akbar v. The State 2007 SCMR 482; Shahadat Ali v. Mubarak Shah and another PLD 1986 SC 347; Meeran Bux v. The State and others PLD 1989 SC 347; Muhammad Nazeer v. Master Muhammad Gul and another 1992 PCr.LJ 674; Saee v. The State 1973 PCr.LJ 675; Peer Mukaram-ul-Haq v. National Accountability Bureau (NAB) 2006 SCMR 1225 and Arshad Mehmood v. Sarfraz 1996 SCMR 861 ref.

A.R. Faruq Pirzada for Applicants (in Criminal Bail Application No.409 of 2011).

Zuber Ahmed Rajput for the Applicants (in Criminal Bail Applications Nos.1047 of 2011).

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

2012 P Cr. L J 1424

[Sindh]

Before Syed Hasan Azhar Rizvi, J

MUHAMMAD ISHAQ KHAN---Applicant

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.296 and M.A. No.7866 of 2011, decided on 29th February, 2012.

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

----Ss. 561-A & 265-K---Penal Code (XLV of 1860), Ss. 320/34---Qatl-i-khita by rash or negligent driving, common intention---Application for quashing of proceedings---Accused had filed an application under S.265-K, Cr.P.C. before the Trial Court but same was dismissed on the grounds that veracity of the prosecution witnesses could not be ascertained without recording of evidence---Contention of accused was that deceased were dacoits and after committing robbery they were escaping on their motorbike at very high speed and hit the car driven by the accused on the driver's side, resulting in death of both the deceased---Validity---Out of the three investigation reports, two supported the contention of the accused, while the third report revealed that the car of the accused hit the motorbike and matter was recommended for trial---Even if the contention of the accused was assumed to be correct, it could not be ignored that two young persons had lost their lives in the incident---Question whether the motorbike in question being driven in a high speed could damage the car of the accused in the manner apparent in the photographs placed on record, was answered in the negative---First investigation report submitted by the police under 'C' class had not been accepted by the Magistrate, who ordered re-investigation of the incident---Determination of the question as to who was at fault, depended on the totality of the facts and circumstances that would be revealed during the trial after recording of evidence of witnesses---Contention of accused that deceased were dacoits having a previous criminal record had no nexus with the road accident as robbery was a separate offence punishable under the law--- High Court in its limited jurisdiction could not embark upon an inquiry to ascertain the innocence or otherwise of an accused person---Quashment of proceedings at a premature stage would not have been fair and would have amounted to depriving the complainant from a proper opportunity of establishing his complaint---Application of accused for quashing of proceedings was dismissed and Trial Court was directed to conclude the trial expeditiously.

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

----S. 561-A---Penal Code (XLV of 1860), Ss. 320/34---Qatl-i-khita by rash or negligent driving, common intention---Quashing of proceedings---Inherent power of High Court---Scope---High Court has the powers under S. 561-A, Cr.P.C. to quash any proceedings pending before any subordinate court, but this can be done only to prevent an abuse of the process of court or to secure the ends of justice when there is no alternate remedy available---High Court while exercising such power can also take into consideration the material which is available on the record---Powers under S.561-A, Cr.P.C. could not be utilized to divert or interrupt the ordinary course of Criminal Procedure Code and the provision is not meant to stifle the prosecution case.

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

----S. 265-K---Penal Code (XLV of 1860), Ss. 320/34---Qatl-i-khita by rash or negligent driving, common intention---Power of Court to acquit accused at any stage---Application for quashing of proceedings---Scope---Application under S.265-K, Cr.P.C. can be filed at any stage i.e. before or after recording of evidence, however , while considering the feasibility of the application at any particular stage, the facts and circumstances of the prosecution case have to be kept in view.

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

---S. 561-A--- Penal Code (XLV of 1860), Ss. 320/34---Qatl-i-khita by rash or negligent driving, common intention---Quashing of proceedings---Inherent power of High Court---Increasing practice of quashing criminal cases which were under trial with courts of competent jurisdiction by invoking powers under S.561-A, Cr.P.C., was not fair and it was time to take steps to stop such tendency and to remember the correct principles governing the subject, so that powers meant to prevent the abuse of law were not abused themselves.

Rasheed A. Razvi and Mehmood A. Qureshi for Applicant.

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

Muhammad Akbar Khan for the Complainant.

Date of hearing: 16th December, 2011.

2012 P Cr. L J 1438

[Sindh]

Before Syed Mehmood Alam Rizvi and Maqbool Ahmed Awan, JJ

MUHAMMAD AYOOB---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.D-78 of 2006, decided on 6th April, 2009.

Explosive Substances Act (VI of 1908)---

----Ss. 4 & 5---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7(b)---Attempt to cause explosion, making or possessing explosive, and act of terrorism---Appreciation of evidence---Accused was already in custody since 3rd October, 2002 and alleged arms and ammunition were said to have been produced by him after a delay of 12 days which also made the recovery highly doubtful---Accused had juxtaposed his case in the Trial Court and was able to prove the mala fides of the Police that just to teach lesson to the family, both the brothers were booked in the false case, and showed the gravity of the crime foisted upon them; the hand grenade, fuses of rocket launcher and KK with 20 live bullets by arresting and showing them terrorists---Father of accused succeeded in getting the possession of his plot from Police forgetting that it was a Police Station and ordinary citizens in such circumstances had to face the consequences---Arms and ammunition, were not sealed at the spot and Police produced the property in the Trial Court in unsealed condition---Investigating Officer had also admitted in cross-examination that the K.K. was without number, in such circumstances, besides the other contradictions that the complainant had mentioned in the F.I.R. and the memo of seizure that the arms were secured from the open plot in front of the house of accused, but mashirs deposed otherwise, which spoiled the case of the prosecution---Where the prosecution itself had failed to prove its case, impugned judgment resulting in 7/8 years' R.I. for accused, was sheer mockery and amounting to slaughtering the innocent citizens---Prosecution having failed to prove its case, against accused, impugned judgment was set aside, accused was acquitted and released, in circumstances.

Miss Parveen Chachar for Appellant.

Bilawal Ali Ghunio for the State.

Date of hearing: 6th April, 2009.

2012 P Cr. L J 1455

[Sindh]

Before Salman Hamid, J

MUHAMMAD FAISAL---Appellant

Versus

Haji LIAQUAT HUSSAIN and 3 others---Respondents

Criminal Acquittal Appeal No.262 of 2010, heard on 16th January, 2012.

Penal Code (XLV of 1860)---

----Ss. 395/324/337-H(2)---Criminal Procedure Code (V of 1898), S.417---Dacoity, attempt to commit qatl-e-amd, hurt by rash or negligent act---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---During cross-examination, one of the prosecution witnesses whose evidence was heavily relied upon by the complainant, had shown his unawareness of the incident; admitted that nothing was recovered from the accused and no empties were recovered from the place of incident, and admitted that civil litigation was pending between the parties---Complainant had earlier lodged an F.I.R. against the accused which was disposed of in B-class---Evidence of one of the defence witness (police official) revealed that neither any sign of offence was found at the place of occurrence nor he found any empty from the scene of offence, and that he knew that civil cases were pending between the parties in different courts---Version of said defence witness could not be dislodged in his cross-examination---Court below had looked into each and every aspect of the matter and had followed the basic principle of criminal jurisprudence that benefit of doubt had to be given to the accused, and for granting such benefit even one infirmity was enough---Appeal against acquittal being meritless, was dismissed.

Mukhtar Ahmed Samar for Appellant.

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

Date of hearing: 16th January, 2012.

2012 P Cr. L J 1474

[Sindh]

Before Salman Hamid, J

MUHAMMAD ANWAR---Appellant

Versus

MUHAMMAD RIAZ and 3 others---Respondents

Criminal Acquittal Appeal No.285 of 2011, heard on 23rd November, 2011.

Penal Code (XLV of 1860)---

----Ss. 448/34---Criminal Procedure Code (V of 1898), S. 417 (2-A)---House-trespass, common intention---Appeal against acquittal---Appreciation of evidence---Complainant (appellant) had allegedly lent an amount to the accused (respondent) in consideration whereof accused mortgaged/handed over possession of his house to the complainant, which was to be returned back upon the payment of the lent amount---Contention of complainant was that accused forcibly took over possession of the house and threw out his wife, without making payment of the lent amount---Validity---Evidence of prosecution witnesses was based on hearsay evidence and none of them were eye-witnesses of the alleged trespass---Wife of complainant, who had been allegedly thrown out of the house was not examined or cited as a witness and such fact was not mentioned in the complaint or the F.I.R.---Inconsistencies existed in the statements of prosecution witnesses with regard to the date and time of the occurrence---Prosecution witnesses who claimed to be tenants of the house while complainant was in possession of it, did not produce any rent agreement or rent receipt to substantiate such fact---Contention of complainant that house was mortgaged to him in consideration of the lent amount, by itself showed that house was mortgaged and possession thereof remained with the accused---Perusal of alleged agreement between the parties revealed that it was in favour of complainant's son, who was a minor at the time of the agreement and neither could he (minor) have executed the same nor the agreement mentioned that complainant executed it on behalf of his minor son as his guardian---Agreement in any case was not registered and could not have been tendered in evidence---Complainant had filed a civil suit against the accused in respect of the house, which was later withdrawn, and such fact itself showed that there was a civil dispute in respect of the house---Possession of accused was not illegal and/or by way of trespass---Appeal against acquittal was dismissed, in circumstances.

Abdul Khalique for Appellant.

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

Date of hearing: 23rd November, 2011.

2012 P Cr. L J 1511

[Sindh]

Before Gulzar Ahmed and Salman Hamid, JJ

TARIQ IQBAL KHAN---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Interior and another---Respondents

Constitutional Petition No.D-2280 of 2011, decided on 17th October, 2011.

(a) Exit from Pakistan (Control) Ordinance (XLVI of 1981)---

----S. 2---Constitution of Pakistan, Art. 199---Constitutional petition---Name of accused (petitioner) placed on Exit Control List vide impugned memorandum--- Pending inquiry against accused by National Accountability Bureau (NAB), regarding sale of shares in a company---Contentions of the accused were that no case was pending against him and only an enquiry was being conducted by the NAB authorities---Validity---No reason or ground whatsoever had been assigned in the impugned memorandum as to why the name of the accused had been placed on the Exit Control List nor was it mentioned in the said memorandum that the Government did not consider it in the public interest to specify the grounds---Impugned memorandum was not only non-speaking but also amounted to depriving the accused of his legal right to know the fault for which he was being restrained from travelling abroad; it also consequently deprived him of an opportunity of being heard, which was a fundamental right of every citizen, and deprived him of his right to be dealt in accordance with the law---Inquiry against the accused was pending since a long time and so far no case, civil or criminal, had been registered against him---No finding so far had been given against the accused by any authority---Pendency of inquiry with the NAB authorities in itself did not provide sufficient material or justification for keeping the name of the accused in the Exit Control List and also did not provide reasonable basis for maintaining this name in the said List---Mere apprehension of the abscondment of the accused, without any cogent or reasonable material or ground to support it, would also not provide justification for maintaining the name of the accused in the Exit Control List---Impugned memorandum, to the extent of the accused, was declared to be without lawful authority and of no legal effect and same was struck down---Accused was allowed to travel within or outside the country---Constitutional petition was allowed, accordingly.

Masood Ahmed v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and another 2010 YLR 28 and Mian Munir Ahmed v. Federation of Pakistan and others 2008 YLR 1508 rel.

Hashmat Ali Chawla v. Federation of Pakistan and others PLD 2003 Kar. 705; Farooq Saleh Chohan v. Government of Pakistan, Ministry of Interior through Secretary/Section Officer, Islamabad PLD 2010 Kar. 394; Zurash Industries (Pvt.) Ltd. through Director v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad 201 CLD 511; Sohail Latif v. Federation of Pakistan through Secretary, Ministry of Interior, Government of Pakistan, Islamabad PLD 2008 Lah. 341; I.A. Sherwani v. Government of Pakistan and others 1991 SCMR 1041; Hashmat Ali Chawla v. Federation of Pakistan and others PLD 2003 Kar. 705 and Khan Muhammad Mehar v. Federation of Pakistan PLD 2005 Kar. 252 ref.

Sajid Ahmed Dadabhoy v. The Federation of Pakistan SBLR 2011 Sindh 351 and Nahid Khan v. Government of Pakistan and others PLD 1997 Kar. 513 distinguished.

(b) Exit from Pakistan (Control) Ordinance (XLVI of 1981)---

----Preamble & S. 2---Power to prohibit exit from Pakistan---Scope---Exit from Pakistan (Control) Ordinance, 1981, gave power to the Federal Government to prohibit any person or class of persons from proceeding from Pakistan to a destination outside Pakistan notwithstanding the fact that such a person was in possession of valid travel documents---Said Ordinance also provided that before making such an order it shall not be necessary to afford an opportunity of showing cause and if it appeared to the Federal Government that it would not be in the public interest to specify the grounds on which the order was proposed to be made, it shall not be necessary for the Federal Government to specify such grounds.

Murtaza Wahab Siddiqui for Petitioner.

Pir Riaz Muhammad Standing Counsel for Respondent No.1.

Noor Ahmed Dayo, Senior Prosecutor NAB for Respondent No.2.

Dates of hearing: 20th and 27th September, 2011.

2012 P Cr. L J 1524

[Sindh]

Before Faisal Arab and Aqeel Ahmed Abbasi, JJ

IQBAL KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.135, M.A. No.1483 of 2010 and M.As. Nos.9285 and 7613 of 2011, decided on 11th January, 2012.

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

---Ss. 6 & 9(c)---Possession and trafficking of narcotics---Appreciation of evidence---Benefit of doubt---Allegation against the accused was that he was the guard (chowkidar) of a godown from which 5000 kilograms of charas was recovered which had been locked in a container---Contentions of the accused were that he was only the guard (chowkidar) of the godown and nothing was brought on evidence to show that he was aware that the narcotic substance was hidden in the container, and that knowledge with regard to the narcotic substance could not be attributed to the accused---Validity---Persons nominated in the F.I.R. for attempting to smuggle the narcotics had not been arrested---Neither anything was recovered from the accused who was a guard (chowkidar) of the godown nor on his pointation the narcotic was recovered from the hidden cavities of the container---Perusal of record revealed that no investigation was conducted to find out the smugglers or to connect the accused with the narcotic substance---Both the witnesses had deposed that the accused was a guard (chowkidar) of the godown---Benefit of doubt, in circumstances, had to be extended to the accused---Appeal was allowed, impugned judgment was set aside and directions were given to release the accused if not required in any other case.

Mehmood A. Qureshi and Jamshed Iqbal for Appellant.

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

Appellant produced in custody.

2012 P Cr. L J 1538

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

MOUJ ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.D-74 and D-75 of 2011, decided on 22nd March, 2012.

Penal Code (XLV of 1860)---

----Ss. 302 & 460---West Pakistan Arms Ordinance (XX of 1965), S.13(e)---Qatl-e-amd, lurking house-trespass or house-breaking by night, possession of unlicensed arms---Appreciation of evidence--- Benefit of doubt--- Accused (appellant) was convicted and sentenced by the Trial Court for committing lurking house-trespass in the house of the complainant and killing his brother and also for possession of an unlicensed weapon, which was allegedly recovered on the pointation of the accused---Contentions of the accused were that there was discordance between the ocular evidence and medical evidence; that not a single empty had been recovered from the spot; that it was not stated in the F.I.R. or by any witness that the accused injured anyone or fired at the deceased; that no private mashir was associated at the time of alleged recovery of the weapon and same was recovered from a place which was not in the possession of the accused---Validity---Injury to the deceased as described in post-mortem report did not conform with the events as narrated in the F.I.R. and with the statement of one of the prosecution witnesses---No empties were recovered from the crime scene---F.I.R. stated that incident occurred inside an enclosure where sheep were being kept, but none of the fires allegedly made by the accused and his co-accused hit any of the sheep or the ground, which created doubt as to whether the incident as alleged had occurred---Investigation officer had stated that weapon recovered had been sent to the Ballistic Expert but no such report from the expert was produced---Inordinate delay in effecting alleged recovery of weapon also created doubt---Appeals of accused were allowed and he was acquitted by granting him benefit of the doubt.

Rashid Mustafa for Appellant.

Ameer Ahmed Narejo for the State.

Date of hearing: 2nd March, 2012.

2012 P Cr. L J 1553

[Sindh]

Before Muhammad Ali Mazhar, J

MUHAMMAD ASIF ARAIN---Applicant

Versus

SHO POLICE STATION ABAD and 2 others---Respondents

Criminal Miscellaneous Application No.S-690 of 2011, decided on 18th May, 2012.

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

----S. 491---Muslim Family Laws Ordinance (VIII of 1961), S.7---Constitution of Pakistan, Art.9---Habeas corpus petition for recovery of alleged wife (detenue)---Order for setting at liberty a sui juris Muslim girl---Scope---Security of person---Scope---Applicant alleged that he had contracted love marriage with the detenue, but signed divorce papers soon after because of pressure and threats from his family, but he never pronounced divorce before the detenue---Detenue went back to her house and applicant alleged that he was informed that her brothers (respondents) were annoyed and kept her under wrongful confinement/detention---Contentions of the applicant were that he never signed the divorce deed with his free-will but was under pressure and duress from his family; that no notice was ever served under S.7 of the Muslim Family Laws Ordinance, 1961, for confirmation of divorce and no meeting was arranged for any reconciliation or confirmation purposes; that the applicant had obtained fatwas from different schools of thought which clearly mentioned that under the given circumstances divorce could not be validated/effected, and that no divorce was ever communicated to the detenue---Validity---Detenue had appeared before the court on a previous date of hearing and clearly stated that no divorce had ever been communicated to her and showed her willingness to live in Darul Aman, till final disposal of the case, as she was not happy with the attitude of her brothers---Detenue was transferred to the Darul Aman but subsequently she did not wish to live there and requested to be set at liberty---Woman who was sui juris could not be kept in Darul Aman when she no longer wanted to stay there---Detenue being a sui juris lady had categorically stated that she could look after herself and her affairs and did not want to live either at the Darul Aman or with her brothers and wanted to be set at liberty to live her own life---Where the court found that a minor brought before it was not being illegally or improperly confined or detained, the court might give his/her custody to the guardian, but if the person was a major, the only jurisdiction which the court could exercise was to set him/her at liberty whether or not he/she was illegally or improperly confined/detained in public or private custody---Article 9 of the Constitution guaranteed that no person could be deprived of his/her life or liberty except in accordance with the law, and as such a major Muslim girl could not be detained in Darul Aman without her consent--- In the present case only course open to the court, in view of the unwillingness of the detenue to live either with her brothers or at the Darul Aman, was to set her at liberty---Question relating to validation or effectiveness of the divorce could not be decided under the present habeas corpus petition---Detenue was set at liberty, police was directed to provide her protection and brothers of the detenue were directed not to cause any harassment to her.

Constitution Petition No.70 of 2007; and Black's Law Dictionary, Sixth Edition ref.

Muhammad Rafique v. Muhammad Ghafoor PLD 1972 SC 6; Muhammad v. Mst. Maryam Bibi 1987 SCMR 906; Sardara v. Khushi Muhammad 1973 SCMR 189 and Mst. Sahi Bi v. Khalid Hussain 1973 SCMR 577 rel.

(b) Words and phrases---

----"Sui juris"---Connotation---'Sui juris' means a person of his own right, possessing full social and civil rights, not under any legal disability, or the power of another, or guardianship---Having the capacity to manage one's own affairs, not under legal disability to act for one's self---In civil law the phrase sui juris indicates legal competence, the capacity to manage one's own affairs; it also indicates an entity that is capable of suing and/or being sued in a legal proceeding in its own name without the need of an ad litem.

Black's Law Dictionary, Sixth Edition ref.

Ghulam Shabir Shar for Applicant.

Shaikh Amanullah and Ghulam Murtaza Korai for Respondents Nos.2 and 3.

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

Date of hearing: 10th May, 2012.

2012 P Cr. L J 1576

[Sindh]

Before Munib Akhtar, J

NADEEM SHAH and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-887 of 2010, decided on 18th March, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Bail, grant of---Further inquiry---Allegation against accused persons was that they robbed a petrol station and took away cash and property---Contentions of accused persons were that they had not been nominated in the F.I.R., and that they had been arrested in some other matter and were kept at an intelligence center before being implicated for present offence---Validity---Contents of the F.I.R. revealed that none of the persons accused for the incident were identified on the spot and it was clearly stated therein that persons who committed the dacoity were unknown---Identification parade of the accused persons was held several days after their arrest---Only information connecting the accused persons with the incident was some spy information allegedly obtained by the investigation officer, who obtained permission to hold an identification parade even before arresting the accused persons---No recovery was effected from the accused persons---Identification parade might have been tainted by the fact that accused persons were shown to the complainant and other witnesses, while they were in the lockup---Case required further inquiry---Bail application of accused persons was allowed and they were granted bail, in circumstances.

Miss Parveen Chachar for Applicants.

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

2012 P Cr. L J 1588

[Sindh]

Before Aqeel Ahmed Abbasi, J

AMEER BUKHSH alias MIRAL and another---Applicants

Versus

ABDUL KARIM and 2 others---Respondents

Criminal Transfer Application No.S-1 and M.As. Nos. 383, 47 and 48 of 2012, decided on 23rd April, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 340 & 526---Penal Code (XLV of 1860), Ss.320/504/147/ 148/149--- Right of accused to change his counsel during trial---Scope---Application for transfer of case---Contentions of the accused persons were that Trial Court was proceeding with the matter in haste; that application of accused persons seeking further time to engage another counsel had been turned down by the Trial Court; that accused persons were not satisfied with their counsel and had a right to engage another counsel of their choice under S.340, Cr.P.C., and that right of accused persons to cross-examine the prosecution witnesses had been closed by the Trial Court---Validity---Numerous counsel were representing the accused persons and their Vakalatnama were on record, but no one had sought discharge of his Vakalatnama on behalf of the accused persons--- Trial had to proceed and conclude within a reasonable time and no party could be allowed to delay the proceedings without any reasonable excuse---Accused persons were awarded several opportunities to proceed with the trial and their attempt to seek replacement of their counsel appeared to be an attempt to delay the proceedings, which was not in conformity with S.340, Cr.P.C.---Accused were at liberty to seek any remedy in accordance with the law if they felt that they had been prejudiced by any order of the Trial Court---No reasonable cause had been shown for transferring the present case from the Trial Court to another court---Application for transfer of case was dismissed, in circumstances.

Ayaz Hussain Tunio for the Applicants.

Ashique Hussain D. Solangi for Respondents Nos. 1 and 2.

Muhammad Iqbal Kalhoro, Additional Prosecutor-General, Sindh for the State.

2012 P Cr. L J 1601

[Sindh]

Before Muhammad Ali Mazhar, J

SHAHID ALI DHAREJO and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.1169 of 2011 and 15 of 2012, decided on 18th May, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/337-H (2)/34---Qatl-e-amd, hurt by rash or negligent act, common intention---Bail, grant of---Further inquiry---Allegation against the accused persons was that they murdered son of the complainant---Contentions of the accused persons were that neither their names were mentioned in the F.I.R. nor their features or description was mentioned therein; that accused persons were previously known to the complainant but despite such fact he did not mention their names in the F.I.R.; that the accused persons were implicated on account of the statements of the prosecution witnesses recorded under S.161, Cr.P.C.; that one of the prosecution witnesses in his statement under S.164, Cr.P.C., did not disclose the name of the accused persons; that another prosecution witness in his statement recorded under S.164, Cr.P.C., had stated that all the accused persons were friends of his deceased brother, but did not disclose their names till much later; that there was a delay of at least 15 days in recording of statements under S.161, Cr.P.C.---Validity---Neither the names of the accused persons were mentioned in the F.I.R. nor any description was provided therein---Statements of prosecution witnesses under S.161, Cr.P.C. were recorded after an unexplained delay of about 15 days, in which the names of the accused persons were disclosed for the first time---Possibility of false involvement/ implication of the accused persons could not be ruled out---Allegation against accused persons was of ineffective aerial firing---Prosecution witnesses had admitted in their cross-examination that they knew the accused persons, but despite such fact they waited for a long time to implicate them and never disclosed their names to the police till recording of statements under S.161, Cr.P.C.---Such belated statements of prosecution witnesses created reasonable doubt in the case of the prosecution, and benefit of doubt could be extended in favour of the accused even at bail stage--- Case against the accused persons required further inquiry and no reasonable grounds existed to believe that they were guilty of an offence falling under the prohibitory clause of S.497, Cr.P.C.--- Accused persons were granted bail, in circumstances.

Muhammad Mithal v. State 2012 YLR 515; Waryam v. State 2006 PCr.LJ 1611; Rustam v. State 2005 YLR 2459; Tahir Abbass v. State 2003 SCMR 426 and Faraz Akram v. State 1999 SCMR 1360 ref.

2006 SCMR 66 and 2012 PCr.LJ 986 rel.

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

----Ss. 497/498---Bail---Principles---Appreciation of evidence---Scope--- Deep appraisal and detailed discussion of evidence at bail stage so as to prejudice the merits of the case of either party at the trial is not permitted and expression of the opinion on merits of the case was depricated by High Court---Courts cannot cross the barrier of permissible limits of law while making tentative assessment of the evidence at the bail stage.

2006 SCMR 66 rel.

Amanullah G. Malik and Manzoor Ahmed Junejo for Applicants.

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

Date of hearing: 11th May, 2012.

2012 P Cr. L J 1613

[Sindh]

Before Muhammad Tasnim, J

GHAZANFARULLAH KHAN PATHAN---Applicant

Versus

THE STATE---Respondent

Bail Application No.S-867 of 2011, decided on 7th May, 2012.

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

----S. 497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(3)---Haraabah---Bail, grant of---Statutory delay in conclusion of trial---Allegation against the accused and his co-accused was that they robbed valuable articles from the house of the complainant after confining the inmates of the house in a room---Contentions of the accused were that after framing of charge, matter was taken up on 32 dates of hearing but on all such dates the matter was adjourned due to various reasons including adjournment by court, absence of prosecution witnesses and non-production of accused persons in court; that if four (4) adjournments sought by the accused were excluded from the total period of the trial, his case clearly fell within the provisions of S.497, Cr.P.C., and that the accused was not a previously convicted offender for an offence punishable with death or imprisonment for life and there was no material to substantiate that he was a hardened or desperate criminal or was accused of an offence of terrorism punishable with death or imprisonment for life---Validity---Case diary sheets revealed that throughout the proceedings accused sought adjournment on four (4) dates of hearing---Three years had passed but the trial had not concluded and such delay was not solely attributable to the accused---Accused being not a previously convicted offender for an offence punishable with death or imprisonment for life, neither was he a hardened, desperate or dangerous criminal nor was he accused of an act of terrorism punishable with death or life imprisonment, had made out a case for grant of bail on the ground of statutory delay in conclusion of his trial, and he was admitted to bail, accordingly.

Muhammad Siddique v. Muhammad Behram and another 1998 PCr.LJ 358; Barkhurdar v. Liaqat Ali and others PLD 1977 SC 434; Mirza Shaukat Baig and others v. Shahid Jamil and others PLD 2005 SC 530; Arbab alias Qasim v. The State 2006 MLD 1846 and Syed Faisal Hussain v. The State 2009 YLR 24 ref.

Nazir Hussain v. Ziaul Haq and others 1983 SCMR 72; Zahid Hussain Shah v. The State PLD 1995 SC 49; Order passed by Honourable Supreme Court of Pakistan in Civil Petition No.620-K of 2011, dated 11-8-2011 (Syed Maqsood Ahmed v. The State and others) and Hassan v. The State PLD 1996 SC 487 rel.

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

----S. 497(1), third proviso & fourth proviso---Right of accused to be granted bail under S.497(1), third proviso, Cr.P.C., on ground of delay in conclusion of trial---Scope--- Right of an accused to be enlarged on bail under the third proviso to S.497(1), Cr.P.C. was a statutory right which could not be denied under the discretionary power of the Court to grant bail---Right of an accused to get bail under the third proviso of S.497(1), Cr.P.C. was not left to the discretion of the court but was controlled by the said provision---Bail under the third proviso to S.497(1), Cr.P.C. could be refused to an accused by the court only on the ground that the delay in the conclusion of the trial had been occasioned on account of any act or omission of the accused or any other person acting on his behalf---Bail under the third proviso to S.497(1), Cr.P.C. could also be refused by the court if the case of the accused fell under the fourth proviso to S.497(1), Cr.P.C., but in all other cases the court must grant bail.

Zahid Hussain Shah v. The State PLD 1995 SC 49 rel.

Syed Jawaid I. Bukhari for Applicant.

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

Date of hearing: 7th May, 2012.

2012 P Cr. L J 1638

[Sindh]

Before Sajjad Ali Shah and Muhammad Shafi Siddiqui, JJ

SAIRA BANO and others---Petitioners

Versus

CHAIRMAN, NAB and another---Respondents

C.Ps. Nos. D-2104, D-2345, D-2353, D-2354, D-2357, D-2361, D-2717, D-2721 of 2012, heard on 7th August, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Constitution of Pakistan, Art. 199---Public Notice No.16/2000(A) dated 30-9-2000---Customs General Order No.4 of 2007, dated 31-3-2007, Ch. II & III---Constitutional petitions---Bail, grant of---Alleged pilferage of ISAF-NATO containers under the garb of Afghan Transit Trade---Clearing Agents and Principal Appraiser (Customs) (accused persons/petitioners) were alleged to be involved in the said pilferage---Contention of Clearing Agents was that they had no role in the alleged offence as the consignments in question were never released to them---Contentions of Principal Appraiser (Customs) were that he had no role or connection with the alleged offence and his warrants of arrest had been issued by NAB authorities just to show progress in the matter; that there was no evidence that missing containers were processed by him or that he cleared the containers on fake documents; that he neither had any physical control over the goods nor had any role in inspection, sealing and eventual delivery of containers to the carriers; that officials of National Logistics Cell (NLC), who were "bonded carriers" had not been investigated at all and their version was believed as the gospel truth---Validity---Process of loading described in the relevant Public Notice did not prescribe any role to the accused persons in the entire process of loading---Neither "bonded carriers" such as National Logistics Cell (NLC) and Railways were investigated nor were preventive officers questioned, who had a specific role in loading of consignments--- During investigation nothing had come out in evidence to rope the accused persons---Apparently accused persons had no physical control over the goods and they had no role in sealing of containers and delivering them to bonded or authorized carrier against Trip Detail Report (TDR)---NAB authorities and investigation officer had stated that accused persons were no more required for investigation and that case against them was based on documentary evidence, which was already with NAB authorities, therefore, there was no probability of same being tampered with---Representatives of National Logistics Cell (NLC) and Railways had not been examined/investigated at all---Case was one of further inquiry---Accused persons were granted bail, in circumstances.

Khalid Jawed Khan, Habib Ahmed, Shakeel Ahmed and Aqeel Ahmed for Petitioners.

Noor Ahmed Dayo, Senior Prosecutor NAB for Respondents.

Date of hearing: 7th August, 2012.

2012 P Cr. L J 1659

[Sindh]

Before Ahmed Ali M. Shaikh and Shahid Anwar Bajwa, JJ

NIAZ alias NIAZOO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.D-1026 of 2011, decided on 15th February, 2012.

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

----S. 497---Penal Code (XLV of 1860), Ss.324/353/365-A/148/149---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, kidnapping or abduction for extorting property, valuable security, etc., rioting armed with deadly weapons, unlawful assembly, acts of terrorism---Bail, refusal of---Accused was named in the F.I.R. and record revealed that he was required in a number of cases including two cases of kidnapping for ransom, which fact reflected that accused was a habitual offender---Two abductees had filed their affidavits before Trial Court exonerating the accused from the commission of the alleged offence, but in view of the prevailing law and order situation in the area at that time and terror of criminals, and the fact that abductees did not appear before the High Court, it could not be ascertained whether the abductees had filed their affidavits voluntarily or whether they were compelled to do so---Accused had not alleged that police had involved him in the case due to some previous enmity---Accused did not deserve the concession of bail, therefore, his bail application was dismissed.

Naseer Ahmed v. The State PLD 1997 SC 347 rel.

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

----S. 497---Penal Code (XLV of 1860), Ss.324/353/365-A/148/149---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, kidnapping or abduction for extorting property, valuable security, etc., rioting armed with deadly weapons, unlawful assembly, acts of terrorism---Bail, refusal of---Two abductees had filed their affidavits before the Trial Court exonerating the accused from the commission of the alleged offence---Validity---High Court while dismissing the bail application of the accused, deprecated the trend of eye-witnesses to take a summersault by giving statements different from the prosecution case and filing affidavits at hearing of bail applications of accused with the intention of creating doubt in the prosecution case to enable the accused to get bail---High Court observed that courts had to be careful in such situations and to see that bail applications were disposed of strictly according to the law on merits, keeping in view the distinction between tentative assessment and actual evaluation of evidence by the Trial Court---Court had to satisfy its mind in a case where eye-witnesses took a turn in the manner mentioned, which shook up the whole prosecution case from the point of view of credibility of the remaining material, and in such respect each case was to be decided on its merits---Bail was refused.

Zulifquar Ali Sangi for Applicant.

Zulifquar Ali Tatoi, D.P.-G. for the State.

Date of hearing: 15th February, 2012.

2012 P Cr. L J 1677

[Sindh]

Before Maqbool Baqar and Muhammad Shafi Siddiqui, JJ

GHULAM MUHAMMAD MEMON and 3 others---Appellants

Versus

THE STATE and another---Respondents

Criminal Accountability Appeals Nos. 13, 14 and 15 of 2012, decided on 2nd July, 2012.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(iv) & 32---Misuse of authority---Appreciation of evidence---Incriminating documents, failure to produce---Effect---Allegation against accused persons was that they allotted shops in New Subzi Mandi (Fruit Market) in violation of policy duly notified in the gazette and decision of Standing Committee---Trial Court convicted and sentenced the accused for misusing their authority---Validity---Prosecution did not produce any witness to demonstrate that allotments during the tenure of accused were violative of terms and conditions of Notification in question and decision of Standing Committee---Prosecution based its charge on two documents i.e. notification and decision of Standing Committee but both documents were neither exhibited before Trial Court nor were produced in any way, hence the core documents by which allegations could be proved were missing from the record---Accused, on specific demand, could produce only notification before High Court---Prosecution failed to prove charge against accused and accused were acquitted---Appeal was allowed in circumstances.

Syed Mahmood Alam Rizvi, Obaid-ur-Rahman Khan and Zakir Laghari for Applicants.

Noor Muhammad Dayo, Senior Prosecutor-General NAB for the State.

Date of hearing: 15th May, 2012.

2012 P Cr. L J 1722

[Sindh]

Before Muhammad Ali Mazhar, J

SOBHARO---Applicant

Versus

ZAMEER and another---Respondents

Criminal Miscellaneous Application No.S-691 of 2011, decided on 4th June, 2012.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302/337-H(2)/147/148/ 149/114---Qatl-e-amd, hurt by rash or negligent act, rioting, rioting armed with deadly weapons, unlawful assembly---Application for cancellation of bail---Accused (respondent) had been granted bail on the ground of statutory delay in conclusion of his trial---Contentions of the complainant (applicant) were that name of the accused had been clearly mentioned in the F.I.R. with a specific role; that delay in conclusion of trial had been caused on account of the acts and omissions of the accused, and that prosecution was not at fault for such a delay---Validity---Accused had been behind bars for the last three years and he had applied for bail not on merits but on the ground of statutory delay in conclusion of his trial---Court below, while dismissing an earlier bail application of the accused, had observed that the Trial Court could not proceed with the case at least on 24 dates due to non-production of the accused persons by the jail authorities, and that the prosecution witnesses were also not present on some dates---Although accused had sought few adjournments but the entire delay in the trial could not be attributed to him---Accused was not alleged to have misused the concession of bail or that he was a dangerous person---Complainant had failed to demonstrate that the bail granting order was patently illegal, erroneous, factually incorrect and had resulted in the miscarriage of justice---Application for cancellation of bail was dismissed, in circumstances.

Mst. Noor Habib v. Saleem Raza and others 2009 SCMR 786; Dadio v. Sobharo and another 2010 SCMR 576; Abdullah v. State 1985 SCMR 1509; Nazir Ahmad v. Muhammad Ismail and another 2004 SCMR 1160; Muhammad Younas v. State 1995 SCMR 1087 and Behram v. State 2003 PCr.LJ 73 distinguished.

Shabir v. State 2012 SCMR 354 rel.

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

----S. 497(5)---Bail, cancellation of---Grounds---Scope---Principles governing the grant of bail and the cancellation of bail stood on substantially different footings---Once bail had been granted by a competent court of law, strong and exceptional grounds were required for cancelling the same and it had to be seen as to whether bail granting order was patently illegal, erroneous, factually incorrect and had resulted in miscarriage of justice---Courts had always been slow to cancel bail already grated as the liberty of a person could not be curtailed on flimsy grounds---No interference with an order of bail was required to be made unless the order lacked reasons or was perfunctory in nature---Once bail had been granted, the prosecution should make out a case for cancellation by not making allegations alone but by giving substantive proof of such allegations.

Mst. Noor Habib v. Saleem Raza and others 2009 SCMR 786; Nazir Ahmad v. Muhammad Ismail and another 2004 SCMR 1160; 2005 SCMR 1539; 1994 SCMR 1064 and 2004 SCMR 231 rel.

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

----S. 497(5)---Order of cancellation of bail---Nature---Scope---Cancellation of bail order was a harsh order because it interfered with the liberty of an individual hence it must not be resorted to lightly and power to take back an accused in custody was to be exercised with due care and circumspection.

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

----Ss. 497(1) & 497(5)---Bail, cancellation of---Scope---Section 497(5), Cr.P.C, did not command the court to cancel the bail even when the offence was punishable with death or imprisonment for life, and even where the grant of bail was prohibited under S.497(1), Cr.P.C.

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

----Ss. 497(5) & 417---Bail, cancellation of---Scope---Setting aside of an acquittal order---Discretion of court---Discretion left in the court under S.497(5), Cr.P.C. was pari materia with the principles, which applied to the setting aside of order of acquittal.

Ubedullah K. Ghoto for Applicant.

Maqbool Ahmed Awan for Respondent No.1.

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

Date of hearing: 14th May, 2012.

2012 P Cr. L J 1749

[Sindh]

Before Muhammad Ali Mazhar, J

ARSHAD---Applicant

versus

THE STATE--Respondent

Criminal Bail Application No.1130 of 2011, decided on 11th June, 2012.

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

----S. 497---Penal Code (XLV of 1860, Ss. 302/324/148/149---Qatl-e-amd, attempt to commit gatl-e-attzd, rioting armed with deadly weapons, unlawful assembly---Bail, refusal of---Common intention as a question of further inquiry---Scope---Persons uniting with a common purpose to commit offence---Effect---Accused had allegedly threatened to kill the deceased-widow, if she collected the compensation for the death of her husband, but when she refused to do so, the accused and co-accused murdered her outside a bank, where she was supposed to collect the compensation---Accused and co-accused had also allegedly injured the complainant's mother during the incident---Contentions of the accused were that no overt act had been attributed against him except for aerial firing; that specific allegation of firing had been attributed to the co-accused; that the question of common intention or preconcert could only be decided after recording of evidence; and that all the prosecution witnesses were related to the complainant and there was no independent witness---Validity---Four empties were recovered from the place of incident---Blood-stained earth of the deceased and injured was also taken--- Matter was immediately reported to the police within 45 minutes---Accused had not been able to show that he was falsely implicated or there was enmity between the parties---All the eye-witnesses supported the version of the complainant---Accused, during interrogation, voluntarily produced the crime weapon from his house along with its magazine and live bullets---F.LR. clearly mentioned that all the accused persons under an unlawful assembly and with, their common intention and preconcert, came to the place of incident to restrain the deceased-widow from collecting the compensation amount, therefore, contention of the accused that he only made aerial firing and could not be held responsible for the common intention, was misconceived---Question of common intention or preconcert had been considered in some cases to be a question of further inquiry but there was no hard and fast rule nor was it a settled principle of law that question of common intention could not be taken into consideration while deciding a bail application---All the accused persons in a pre-planned manner had committed the murder and shared common intention with the principal accused---Where several persons united with a common purpose to commit any criminal offence, all those who assisted in the completion of their object would be equally guilty---Reasonable grounds existed to believe that the accused shared the common intention with all the co-accused in the commission of the crime in question---Bail application of the accused was dismissed, in circumstances.

Yaroo v. State 2004 SCMR 864; Farzand Ali v. Taj and others2000 SCMR 1854; Muhammad v. State 1998 SCMR 454; Tasaver and another v. State 2006 PCr.LJ 629 and Waryam v. State 2006 PCr.LJ 1611 distinguished.

Muhammad Imran and others v. State 2008 PCr.LJ 1555 and Muhammad Bashir'v. State 2000 SCMR 78 ref.

Mulo Ahmed v. State 2011 MLD 1171 rel.

(b) 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, unlawful. Assembly--- Bail-Considering vicarious liability at bail stage--Scope---Vicarious liability could be looked into even at bail stage---If from the F.I.R. the accused appeared to have acted in a preconcert or shared common intention with his co-accused, who had caused the fatal injury, accused could be saddled with constructive or vicarious liability in such circumstances---Court, even at bail stage, could consider the question whether the case of constructive liability was made out or not on the basis of the material, such as the F.I.R. and the statements recorded by the police Paramount consideration was whether accused was the member of an unlawful assembly or whether the Offence had been committed in furtherance of common object.

Farman Ali Kanasro for Applicant.

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

Date of hearing: 18th May, 2012.

2012 P Cr. L J 1770

[Sindh]

Before Shahid Anwar Bajwa, J

ABDUL KHALIQUE and 3 others---Applicants

versus

4TH CIVIL JUDGE AND JUDICIAL MAGISTRATE, KHAIRPUR and 3 others---Respondents

Criminal Miscellaneous Application No.179 and M.A. No.2153 of 2009, decided on 9th April, 2012.

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

----S. 561-A--- Penal Code (XLV of 1860), Ss. 447/448/147/148/ 149/506---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 20---Criminal trespass, house-trespass, rioting, rioting armed with deadly weapons, unlawful assembly, criminal intimidation, haraabah liable to tazir---Quashing of proceedings---Offence of criminal trespass---Ingredients---Allegation against the accused persons (applicants) was that they threatened the complainant (respondent) with weapons and forcibly took away wheat and wheat stalk from her land, which had been given to the accused persons on lease basis---Complaint was filed against the accused persons and charge framed against them contained Ss.447, 147, 148 & 149, P.P.C.---Accused persons filed application under S.249-A, Cr.P.C. on grounds that no charge under S.20 of the Offences Against Property (Enforcement. of Hudood) Ordinance, 1979, was framed against them, therefore it must be admitted that they had a right and lawful share in the wheat produce in question, and that there was no element of intimidation, insult or annoyance to make out an offence under 5.447, P. P. C. ---Said application was dismissed by the Trial Court and revision filed there against was also dismissed by the court below---Validity---Accused persons had been given the land in question on lease basis--- Charge framed against the accused persons did not contain S.20 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, therefore, it was clear that they were present on the land for the sake of taking away their own share of produce---To establish criminal trespass, allegation against the accused had to be that he trespassed with the intention of intimidating, insulting or annoying or with the intention to commit an offence---No element of intimidation, annoyance or insulting any person was alleged in the complaint, therefore, prima facie no case under S.447, P.P.C. was made out---Application of the accused persons was allowed, impugned orders of Trial Court and court below were set aside, application filed by the accused persons under S.249-A, Cr.P.C. was allowed and proceedings against them were quashed, resulting in their acquittal.

Kazi Taj Muhammad v. The State and another PLD 1962 Kar. 330; Abdul Razzaq v. SHO 2008 PCr.LJ 812; Miraj Khan v. Gul Ahmed 2000 SCMR 122; State v. Ashiq Ali Bhutto 1993 SCMR 523; Sikandar A. Kareem v. The State through Chairman, National Accountability Bureau 2011 MLD 313 and Khairat Hussain v. Additional Sessions Judge, Sheikhupura 2011 YLR 979 ref.

'Sunnasamy Selvanayagam v. The King 62 Cr.LJ 173; Malik Muhammad Zamir v. Shamim Akhtar 2006 PCr.LJ 539 and State through Secretary Ministry of Interior v. Ashiq Ali Bhutto 1993 SCMR 523 rel.

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

----Ss. 441 & 447---Offence of criminal trespass---Ingredients---Ingredients of the offence of criminal trespass under 5.447, Cr.P.C. as defined by S.441 Cr.P.C., were to commit trespass to intimidate, insult or annoy any person in possession of the property in dispute---Difference existed between civil trespass by way of taking possession of the property without the consent of the person in possession and criminal trespass for which insult or annoyance to the person in possession of such property was a condition precedent---Person would not be annoyed or intimidated in absentia and in such a situation the charge of criminal trespass would not be sustainable.

Abdul Razzaq v. SHO 2008 PCr.LJ 812 rel.

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

----Ss. 441 & 447---Offence of criminal trespass---Ingredients and scope--- Prosecution, in order to establish offence of `criminal trespass', must prove that real or dominant intent of entry in property was to commit an offence or to insult, intimidate or annoy the occupant and that any claim of right was a mere cloak to cover the real intent or at any rate constituted not more than a subsidiary intent---Entry upon land made under a bona fide claim, how ill-founded in law the claim might be, would not become criminal merely because a foreseen consequence of entry was annoyance to occupant.

Sunnasamy Selvanayagam v. The King 62 Cr.LJ 173 and Malik Muhammad Zamir v. Shamim Akhtar 2006 PCr.LJ 539 rel.

Zuber Ahmed Rajput for Applicants.

Ghulam Shabir Shar for Respondent No.4

Zulfiqar Ali Jatoi, D.P.-G.

2012 P Cr. L J 1794

[Sindh]

Before Naimatullah Phulpoto, J

FAYAZ HUSSAIN---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 454 of 2012, decided on '7th August, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 380/457/34/411---Theft in dwelling house, lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment, common intention, dishonestly receiving stolen property---Bail, grant of---Further inquiry---Rule of consistency---Unwitnessed incident---Accused was alleged to have committed theft at the shop of the complainant, who implicated the accused for the offence on the basis that footprints from the shop were tracked to the house of the accused---Contentions of accused were that actual theft was unwitnessed; that evidence of footprints was weak type of evidence; that some of the stolen articles had been foisted upon him; that at the most offence under S. 411, P.P.C. was made out against him, which did not fall within the prohibitory clause of S.497, Cr.P.C., and that co-accused had been granted bail and his case was identical to that of said co-accused---Validity---Alleged theft was unwitnessed---Prima facie allegation against accused was only of possessing stolen articles, punishable under S.411, P.P.C., which did not fall under prohibitory clause of S.497, Cr.P.C.---Co-accused, on more or less the same allegations, had been granted bail---Accused was no more required for investigation---Case was one of further inquiry and accused was admitted to bail, accordingly.

Qurban Ali Malano for Applicant.

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

2012 P Cr. L J 1838

[Sindh]

Before Syed Hasan Azhar Rizvi, J

HABIB-UR-REHMAN---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.1355 of 2011, decided on 16th December, 2011.

Criminal Procedure Code (V of 1898)

----S. 497(2)---Explosive Substances Act (VI of 1908), Ss. 4, 5 & 7---Attempt to cause explosion or making or keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, restriction on trial of offences---Bail, grant of---Further inquiry---Failure to obtain permission from Provincial Government for prosecution---Contention of accused that he had been already granted bail by the High Court in another F.I.R. registered for the same offence on the ground that no permission had been obtained from the Provincial Government for prosecution, as required under S.7 of Explosive Substances Act, 1908---Validity---Accused had already been granted bail by the High Court in another F.I.R. as no permission had been obtained from the Provincial Government for prosecution under S.7 of Explosive Substances Act, 1908, with the observation that non-availability of sanction/consent of the Provincial Government made the case one of further inquiry---Accused was granted bail, in circumstances.

Mushtaq Ahmed for Applicant.

Muhammad Igbal Awan, Additional Prosecutor-General, Sindh for the State.

2012 P Cr. L J 1863

[Sindh]

Before Shahid Anwar Bajwa, J

SANAULLAH and 2 others---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No. S-152 of 2012, decided on 14th May, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLY of 1860), Ss. 302/34---Qatl-a-amd, common intention---Bail, refusal of---Allegation against the accused persons was that they murdered the deceased (son of the complainant) due to some matrimonial affairs---Contentions of the accused persons were that there was a delay of seven days in recording further statement of the complainant and a delay of sixteen days in recording statements of witnesses under S.164, Cr.P.C., and that the present case was a case of two-versions---Validity---Both the witnesses in their statements under 5.164, Cr.P.C. stated that the accused persons gave a number of blows to the- deceased---Medical evidence revealed that the deceased had sustained five incised wound injuries, therefore, there was no discordance between the ocular and the medical evidence---Present case was not a case of two versions because the complainant of the F.I.R. was not an eye-witness of the incident and he merely stated that when he heard cries of his son, he rushed to the spot and found his son lying on the ground dead, whereas, the prosecution witnesses stated that they had seen the accused persons inflicting hatchet blows on the deceased---Delay in lodging of F.I.R. was clearly explained as the F.I.R. was lodged after the dead body of the deceased was taken to the hospital, autopsy was performed and burial had taken place---Autopsy and burial of the deceased could not have been performed without informing the police and even the post-mortem report of the deceased clearly indicated that his dead body was brought to the hospital by a police official---Bail application of the accused persons was dismissed, in circumstances.

Shahbaz Gul v. The State 1984 PCr.LJ 495; Muhammad Rafiq and another v. The State 2011 YLR 400 and Abid Ali alias Ali v. The State 2011 SCMR 161 distinguished.

Saeed Ahmed Panhwar for Applicants.

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

Raham Ali Jatoi for the Complainant.

2012 P Cr. L J 1890

[Sindh]

Before Muhammad Tasnim, J

Syed SHAMIM AHMED and another---Applicants

versus

THE STATE---Respondent

Criminal Miscellaneous No.403 of 2010, decided on 16th September, 2011...

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

----S. 561-A--- Penal Code (XLV of 1860), Ss.409/468/471/34---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust, forgery, using as genuine a forged document, corruption---Quashing of proceedings---Accused were not nominated in the F.I.R. as culprits and initially they were cited as prosecution witnesses---Accused were implicated in the case through subsequent interim challan, but none of the prosecution witnesses had said anything against them---Proceedings against co-accused in the case had already been quashed by High Court---Prosecution had no evidence against the accused---Eleven years had passed, but prosecution had not so far examined more than five witnesses---Nothing had come on record against the accused and it would be sheer abuse of process of law to allow the accused to further face the agony of criminal trial---Proceedings pending against the accused in the case in the Trial Court were quashed in circumstances.

Muhammad Khalid Mukhtar v. The State PLD 1997 SC 275; Muzaffar Iqbal v. The State 1993 PCr.LJ 125; Mehboob Alam and others v. The State PLD 1996 Kar. 144; The State v. Asif Ali Zardari and another 1994 SCMR 798; Raja Haq Nawaz v. Muhammad Afzal and others PLD 1967 SC 354 and Gian Chand v. State 1968 SCMR 380 ref..

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

----S. 561-A---Inherent powers of High Court---Scope and limitations stated.

The State v. Asif Ali Zardari and another 1994 SCMR 798 ref.

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

----S. 561-A---Inherent powers of High Court---Scope and extent explained.

Muzaffar Iqbal v. The State 1993 PCr.LJ 125 ref.

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

----S. 561-A---Inherent powers of High Court---Criterion for exercise of power expounded.

Mehboob Alam and others v. The State PLD 1996 Kar. 144 ref.

Muhammad Ashraf Kazi for Applicants.

Qamar-ul-Islam, Standing Counsel for the State.

Date of hearing: 16th September, 2011.

2012 P Cr. L J 1907

[Sindh]

Before Salman Hamid, J

ALI KHAN---Applicant

versus

THE STATE---Respondent

Criminal Bail Applications Nos.S-136 and 137 of 2011, decided on 3rd August, 2011.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302/382/457/148/149---Qatl-e-amd, theft after preparation made for causing death, hurt or restraint, in order to the committing of the theft, lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment, rioting armed with deadly weapons, unlawful assembly---Bail, refusal of---Case of complainant had remained consistent and the moment he became conscious that police had not shown names of all the accused persons in the F.I.R., he preferred a constitutional petition by which High Court directed police to record statement of complainant and to register the F.I.R. from the proposed F.I.R. duly signed by the complainant---Contents of F.I.R. and further statement of complainant made it clear that accused persons had been associated with the offence directly and they shot the deceased---F.I.R. also clearly mentioned that accused persons trespassed into the complainant's house and tried to run away with his buffaloes--Complainant had correctly identified the accused persons in the identification parade---Accused persons had failed to make out a case for further inquiry, therefore, bail applications filed by them were dismissed.

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

----S. 497--- Penal Code (XLV of 1860), Ss. 302/382/457/148/149---Constitution of Pakistan, Art. 13---Qatl-e-amd, theft after preparation made for causing death, hurt or restraint, in order to the committing of the theft, lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment, rioting armed with deadly weapons, unlawful assembly---Protection against double punishment---Registration of second F.I.R.---Applicability of rule of double jeopardy---Scope---Contention of accused was that second F.I.R. was hit by Art.13 of the Constitution---Validity---Article 13 of the Constitution would become applicable if the accused was "convicted" and "punished", and such stage had not,turned up as yet in the present case.

Faiz Muhammad Larik and Habibullah G. Ghouri for Applicant.

Musab Baleegh Dhamrah, State Counsel for the State.

Rasool Bux in person for the Complainant.

Date of hearing: 3rd August, 2011.

2012 P Cr. L J 1927

[Sindh]

Before Shahid Anwar Bajwa and Aziz-ur-Rehman, JJ

HIDAYATULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.D-94 of 2009, decided on 2nd August, 2012.

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

----S. 9(c)---Possessing and trafficking of narcotics---Appreciation of evidence---Benefit of doubt---Contradictions were found in the statements of prosecution witnesses, with regard to ocular account, recovery and weight of allegedly recovered narcotics---Both the witnesses were Excise Department Personnel and complainant was the Investigating Officer--- Story of the prosecution was pock marked by a doubt--- Accused was acquitted by granting him benefit of doubt and he was ordered to be released, in circumstances.

State through Advocate-General Sindh v. Bashir and others PLD 1997 SC 408 and Tarique Pervez v. The State 1995 SCMR 1345 ref.

(b) Criminal trial---

----Evidence---Police personnel as witnesses---Where only Police personnel were witnesses and were the only official witnesses, the court must scrutinize evidence with a greater degree of circumspection.

Hidayatullah Abbasi for Appellant.

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

Date of hearing: 31st July, 2012.

2012 P Cr. L J 1970

[Sindh]

Before Naimatullah Phulpoto, J

KHUDA BUX---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-296 of 2012, decided on 4th June, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/337-H(2)/ 148/149/114---Qatl-e-amd, hurt by rash or negligent act, rioting armed with deadly weapons, unlawful assembly, abettor present when offence committed---Bail, grant of---Further inquiry---Vicarious liability of the accused not yet determined---Rule of consistency---Allegation against the accused was that on his instigation one of the co-accused fired at and murdered the deceased---Contentions of the accused were that role of instigation had been assigned to him in the commission of the offence, yet his vicarious liability was to be determined at the trial, and that one of the co-accused, whose role was identical to that of the accused, had been granted bail---Validity---Allegation of instigating one of the co-accused had been assigned to the accused, but his vicarious liability for the commission of the offence was yet to be determined at the trial---Case of the accused was more or less identical to that of the co-accused, who had already been granted bail---Circumstances of the case and rule of consistency called for further probe into the case as envisaged in S.497(2), Cr.P.C.---Bail was granted to the accused, in circumstances.

Muhammad Daud and another v. The State 2008 SCMR 173 and Jhando and another v. The State 2006 YLR 3206 rel.

Ghulam Shabbeer Shar for the Applicant.

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

2012 P Cr. L J 1979

[Sindh]

Before Naimatullah Phulpoto, J

LIAQUAT ALI CHANNA---Applicant

Versus

ADDITIONAL SESSIONS JUDGE, GAMBAT, DISTRICT KHAIRPUR and another---Respondents

Criminal Transfer Application No.S-28 of 2012, decided on 7th June, 2012.

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

----S. 526---Penal Code (XLV of 1860), Ss. 302/337-H(2)/34---Qatl-e-amd, hurt by rash or negligent act, common intention---Application for transfer of case---Trial Judge disallowing irrelevant questions put to prosecution witnesses was not a sufficient ground for transfer of case---Duty of trial Judge to decide about relevancy and admissibility of questions during cross-examination---Scope---Contentions of the accused (applicant) were that the trial Judge had disallowed important questions during the cross-examination of the prosecution witnesses, which were essential for just decision of the case, and that the trial Judge recorded the evidence according to his own version causing serious prejudice to the accused---Validity---Trial Judge in his comments had denied all the allegations levelled by the accused and stated that irrelevant questions were not allowed by him and every question put up by the defence counsel, which was found relevant, was properly written and decided, and that 95 adjournments were sought by the defence counsel which caused delay in the recording of evidence---Said comments of the trial Judge made it clear that irrelevant questions put to the prosecution witnesses were not allowed---Trial Judge was under a duty to decide about the relevancy, irrelevancy, admissibility or inadmissibility of the questions put to the prosecution witnesses at the time of recording of evidence--- Accused neither levelled allegation of bias in the mind of the trial Judge nor pointed out any objection regarding the manner in which proceedings were being conducted---Merely disallowing irrelevant questions put to prosecution witnesses would not furnish sufficient ground for transfer of the case, when 95 adjournments had been granted by the trial Judge--- Application for transfer of case was dismissed, in circumstances.

Muhammad Munir v. The State 2001 PCr.LJ 1650 rel.

Bagh Ali and 4 others v. The State PLD 1973 SC 321; Muhammad Aslam v. The State 1990 PCr.LJ 205; Mirza Mubarak Ahmed Nusrat v. The State and another 1990 PCr.LJ 1097; Haji Khawar Saleem v. The State 2001 SCMR 905; Saifullah and 3 others v. The State 2002 YLR 3661; Mazhar Iqbal v. The State 2005 MLD 1364 and Ashiq v. The State 1992 MLD 341 ref.

Mehboob Ali and another v. The State 2004 SCMR 261 and Muhammad Malik v. Muhammad Farooq and 2 others 1993 PCr.LJ 1362 ref.

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

----S. 526---Application for transfer of case---Grounds---Apprehension in the mind of the accused not a valid ground for transfer---Scope---Mere apprehension in the mind of the party would not be sufficient for transfer of the case from one court to another---Apprehension in the mind of the party must be reasonable and based upon some sound reasons.

Muhammad Munir v. The State 2001 PCr.LJ 1650 rel.

Zubair Ahmed Rajput for Applicant.

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

Noor Hassan Malik for the Complainant.

2012 P Cr. L J 8

[Lahore]

Before Ch. Muhammad Younis, J

Mst. PARVEEN BIBI---Petitioner

Versus

JUSTICE OF PEACE, TEHSIL MAILSI DISTRICT, VEHARI and 7 others---Respondents

Writ Petition No. 11193 of 2011, decided on 5th September, 2011.

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

----Ss. 22-A & 157(2)---Constitution of Pakistan, Art.199---Constitutional petition---Application under S. 22-A, Cr.P.C. for registration of case---Justice of Peace, after obtaining the comments from S.H.O. concerned directed him to proceed in accordance with law---Justice of Peace, vide impugned order relying on rapt submitted by S.H.O. under S.157(2), Cr.P.C. dismissed the petition and observed that petitioner was at liberty to file a private complaint---Validity---Rapt recorded by S.H.O. was based on frivolous ground; it had been mentioned in said rapt that since the civil suit was pending between the parties in respect of the agreement to sell in question, the criminal case could not be registered---Such view was violative of law---Ex-officio Justice of Peace without applying his judicial mind proceeded to dismiss the petition; and failed to get his own order implemented merely on the basis of his rapt which had no legal bearing---Civil as well as criminal proceedings could be initiated simultaneously---If a person prepared a forged document and he himself filed a suit for specific performance on the basis thereof, he could not be absolved of his criminal liability as it would amount to perpetuate an illegality by refusing to initiate a criminal action against said person---Civil suit normally would take years to conclude---No one could be given benefit of his own wrong or misdeed---Impugned order of Justice of Peace was set aside and S.H.O. was directed to record the version of the petitioner, register a case and proceed strictly in accordance with law against all the persons found involved in commission of offence.

(b) Criminal trial---

----Civil and criminal liability---Criminal liability was always distinct and different from civil liability between the parties---If a criminal offence was made out there was absolutely no bar for getting a criminal case registered.

Mehr Mazhar Abbas for Petitioner.

2012 P Cr. L J 21

[Lahore]

Before Sh. Ahmad Farooq and Abdus Sattar Asghar, JJ

ABDUL GHAFFAR alias KALO and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 1 of 2011 in Criminal Appeal No. 834 of 2008, decided on 6th September, 2011.

Criminal Procedure Code (V of 1898)---

----S. 426(1A)(c)---Penal Code (XLV of 1860), S.302(b)---Qatl-e-amd---Suspension of sentence---Application for---Accused, pending appeal, had sought suspension of sentence passed against him by the Trial Court on the ground that his appeal was pending for the last three years and there was no probability of its earlier disposal---Complainant side had not been able to substantiate its contention with any speck of material that accused was a desperate or hardened criminal---Right of accused for suspension of sentence on statutory ground of delay in disposal of appeal, could not be denied, except on the grounds mentioned in 1st proviso of S.426(1A)(c), Cr.P.C.---Accused, in circumstances, was entitled to the concession of suspension of his sentence on the statutory ground of delay in disposal of appeal for more than two years in terms of S.426(1A)(c), Cr.P.C.---Accused was released on bail, in circumstances.

Liaqat Ali Sandhu for Petitioners.

Muhammad Ikhlaq, Deputy Prosecutor-General for the State.

Muhammad Akram Qureshi for the Complainant.

2012 P Cr. L J 30

[Lahore]

Before Abdus Sattar Asghar, J

MUHAMMAD NAWAZ and others---Petitioners

Versus

MUHAMMAD FAZAL and others---Respondents

Criminal M. No. 1025-Q of 2009, decided on 28th September, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 145 & 561-A---Dispute concerning land likely to cause breach of peace---Petition for setting aside order---S.H.O. concerned lodged report to the Judicial Magistrate seeking order to initiate proceedings under S.145, Cr.P.C. regarding land in dispute---Magistrate, pursuant to said report of S.H.O., found that dispute between the parties was likely to cause breach of peace, and ordered to attach and seal the disputed property in terms of S.145, Cr.P.C.---Additional Sessions Judge, in revision, after providing an opportunity of hearing to the parties, and perusal of the record accepted the petition---Neither the S.H.O. furnished sufficient material with the report nor the Magistrate bothered to provide an opportunity of hearing to the parties before passing the impugned order---Magistrate failed to hold an enquiry into the possession of the parties as required under S.145(4), Cr.P.C.---Order passed by Magistrate was illegal, perverse and not sustainable in the eye of law---Revisional Court while taking into consideration said vital dimensions had rightly accepted the petition against order passed by the Magistrate---In absence of any abuse of the process of the court or any other cogent reason to interfere in the impugned order passed by the revisional court, petition filed under S.561-A, Cr.P.C. was dismissed in circumstances.

Mian Azhar Hussain Pirzada for Petitioners.

Muhammad Sharif Bhatti and Malik Altaf Nawaz for Respondents.

2012 P Cr. L J 47

[Lahore]

Before Abdus Sattar Asghar, J

ZAHID HUSSAIN---Petitioner

Versus

ABDUR RASHEED and 4 others---Respondents

Criminal Revision No. 137/BWP of 2011, decided on 20th September, 2011.

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

----Ss. 200, 203 & 435---Penal Code (XLV of 1860), S. 379---Examination of complainant---Dismissal of complainant---F.I.R., earlier filed by the petitioner/complainant, was cancelled after investigation by the Police and proceedings under S.182, P.P.C. were initiated against the complainant---After lapse of more than six years, complainant lodged a private complaint in the court of Magistrate on the basis of the same allegation against the respondents---Magistrate during inquiry under S.203, Cr.P.C., dismissed said private complaint on the grounds that evidence produced by the complainant was neither cogent nor reliable or confidence-inspiring---Complainant filed appeal against order of the Magistrate before the Additional Sessions Judge, who dismissed said appeal---Impugned order passed by the Magistrate, being not appealable, complainant had wrongly invoked appellate jurisdiction of Additional Sessions Judge by filing appeal against impugned order---Additional Sessions Judge, who was competent to convert the wrongly filed appeal into revision under S.435, Cr.P.C., having not done so, entertainment of complainant's appeal and its disposal while exercising appellate jurisdiction, was coram non judice and order passed by Additional Sessions Judge was void and without jurisdiction.

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

----Ss. 200, 202 & 203---Penal Code (XLV of 1860), S. 379---Theft---Examination of complainant---Dismissal of complainant---Record had revealed that statements of the complainant and his witnesses recorded by Magistrate in terms of S.202, Cr.P.C., lacked intrinsic and inherent worth as the complainant and his witnesses had made tutored statements totally oblivious of the time and date of alleged occurrence---Said witnesses were neither confidence-inspiring nor reliable---Complainant had filed said complaint after six years of the alleged occurrence---Delay in lodging of the private complaint, though was no ground for its dismissal, but in the present case, mala fide of the complainant could not be ignored as he had not approached the court with clean hands---Complainant's statement and evidence of prosecution witnesses in such state of affairs, could not be termed as prima facie, reliable incriminating material to issue the process under S.202, Cr.P.C.---Prosecution story and the testimonies of interested prosecution witnesses, neither reliable nor confidence-inspiring, had shown that Magistrate had rightly weighed the cursory evidence and other material on the record produced by the complainant with due care and application of judicious mind while passing impugned order which did not suffer from any illegality, impropriety or irregularity of proceedings---Petition was dismissed.

Noor Muhammad v. The State and others PLD 2007 SC 9; Imtiaz Rubbani alias Billu v. The State and another PLD 2008 Lah. 441 and Muhammad Yousaf and others v. The State 2000 PCr.LJ 488 distinguished.

Zafar and others v. Umer Hayat and others 2010 SCMR 1816 rel.

Ms. Kausar Iqbal Bhatti for Petitioner.

2012 P Cr. L J 73

[Lahore]

Before Abdus Sattar Asghar, J

RIZWAN AHMAD and 5 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Revision No. 132 of 2010/BWP, decided on 27th September, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 265-F & 493---Evidence for prosecution---Admissibility of documents through the statement of Public Prosecutor acting under S.493, Cr.P.C., could not be questioned merely on the ground that the said documents were not produced by the prosecution under S.265-F, Cr.P.C. at the earlier stage of trial---Delay in production of documents, in circumstances, would not render the documents inadmissible---Owing to the difference between civil and criminal proceedings with regard to documentary evidence when the genuineness of the documents was not questioned by defence side, the court should not refuse to admit the documents in evidence even at the later stage of the trial if it considered it necessary for just conclusion of the controversy especially when the defence had an opportunity to rebut the said documents by producing defence evidence---Even after admitting the documents in evidence, the court had power to look into intrinsic value of those documents to take reliance thereon or not.

Muhammad Sharif Bhatti for Petitioners.

Syed Jameel Anwar Shah for Respondents.

2012 P Cr. L J 91

[Lahore]

Before Sh. Ahmad Farooq and Abdus Sattar Asghar, JJ

ASIF IQBAL and 3 others---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No. 837 of 2011, heard on 6th September, 2011.

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

----Ss. 4(c), 221, 227 & 265-D---Framing and altering of charge---Scope and purpose---Purpose of charge was to tell an accused as precisely and concisely as possible about the matter; what the prosecution intended to prove against him in order to afford him an opportunity to defend himself---Section 265-D, Cr.P.C., envisaged that while framing the charge, Trial Court was bound to consider not only the F.I.R. and report under S.173, Cr.P.C., but all other documents and material filed by the prosecution which would include the recovery memos, the site plans, the statements of witnesses under S.161, Cr.P.C. and 164, Cr.P.C. etc. to rule out any prejudice to accused; and to ensure just and fair trial on the basis of material placed by the prosecution before the court---Court was empowered to alter and change the charge in terms of S.227, Cr.P.C., if so warranted by the circumstances.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), Ss.4(c), 221, 227, 233 & 265-D---Possessing narcotics---Framing, altering and amendment in charge---Scope---Different quantities of 'charas' were allegedly recovered from the possession of accused and their co-accused in two episodes; at one and the same time and place of occurrence; for which different recovery memos were prepared by the Investigating Officer at the spot---Law, in such circumstances, required that each accused should have been separately charged for possessing the 'charas' allegedly recovered from them---Framing of joint charge against accused persons with regard to separate recovery of charas weighing '1020 grams' from their co-accused recorded through a separate recovery memo was likely to cause prejudice to accused's case---Charge framed by the Trial Court, was liable to be altered on the basis of material available on the record---Impugned order of the Trial Court declining the request of accused persons for amendment in the charge was against law and facts, based on misappraisal of the incriminating material available on the record likely to cause prejudice to the case of accused, not sustainable in the eye of law and was liable to be set aside---Impugned order was set aside with direction to the Trial Court to amend the charge on the basis of incriminating material available on the record, in accordance with law.

Shafqat Abbas Khan Sial for Appellants.

Muhammad Ikhlaque Deputy Prosecutor-General for the State.

Date of hearing: 6th September, 2011.

2012 P Cr. L J 104

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

Hafiz MUHAMMAD NAEEM and 3 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Nos. 1269-M and 1817-M of 2011, heard on 10th August, 2011.

Penal Code (XLV of 1860)---

----Ss. 337-A(i), 337-F(i), 337-F(v), 337-N & 34---Criminal Procedure Code (V of 1898), S.561-A---Causing Shajjah-i-Khafifah, Damiyah and Hashimah---Sentence, enhancement of---Trial Court awarded sentence of payment of Daman to accused persons and did not award any imprisonment as 'Tazir'---Rigorous imprisonment from one to two years, was awarded to accused persons on revision, against which accused had filed petition under S.561-A, Cr.P.C.---Contention of accused that no notice for enhancement of sentence was served upon them, had no substance, as requirement of law was the hearing of accused himself or through his pleader in the proceedings, where his sentence was to be enhanced---Separate written notice was not required to be given to accused under S. 439, Cr.P.C. before enhancing the sentence awarded to them---Under provisions of subsection (2) of S.337-N, P.P.C., courts in all hurt cases would award the principal sentence of Daman and Arsh and would indict accused for imprisonment as 'Tazir', if he was found previous convict, habitual, hardened, desperate or dangerous criminal; or he had committed the offence in the name or on the pretext of honour and punishment of imprisonment could not be inflicted in all cases of hurt---Nothing was available in the evidence of the prosecution to show that the petitioners fell within the category of such offenders---Sentence of imprisonment imposed on accused persons by the Appellate Court while enhancing the sentence, was illegal---Impugned order whereby sentence was enhanced, was set aside and accused detained in jail, were set at liberty, in circumstances.

2000 PCr.LJ 2075 and Mushtaq Ahmad and others v. Secretary, Ministry of Defence through Chief of Air and Army Staff and others PLD 2007 SC 405 ref.

Ali Muhammad v. The State PLD 2009 Lah. 312 rel.

Syed Ihtisham Qadir Shah for Petitioners.

Muhammad Aqeel Nasir Rana and M. Ishaq, D.P.-G. for Respondents.

Date of hearing: 10th August, 2011.

2012 P Cr. L J 117

[Lahore]

Before Abdul Waheed Khan, J

MUSTAFA---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE---Respondent

Criminal Revision No. 603 of 2011, decided on 19th July, 2011.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss. 324/337-F(v)---Attempt to commit qatl-e-amd and causing Mudihah---Dismissal of appeal for non-prosecution---Accused who was convicted and sentenced, assailed his sentence before Appellate Court---Appeal was admitted and sentence of accused was suspended---Accused having failed to appear before Appellate Court, not only his concession of bail granted under S.426, Cr.P.C. was withdrawn, and his bail bonds were confiscated, but also his appeal was dismissed for non-prosecution---Validity---Appeal which had already been admitted for regular hearing should have been decided on merit and same could not be dismissed for non-prosecution---Impugned order, in circumstances, was set aside and appeal filed by accused, would be deemed to be pending; and would be decided on merits in accordance with law.

Muhammad Ashiq Faqir v. The State PLD 1970 SC 177 rel.

M. Aqeel Wahid Chaudhry for Petitioner.

Nisar Ahmad Virk, D.P.-G. for Respondent.

2012 P Cr. L J 124

[Lahore]

Before Sh. Najam-ul-Hasan and Abdus Sattar Asghar, JJ

QASIM ALI MALIK---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Revision No. 8/BWP of 2011, decided on 29th June, 2011.

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

----Ss. 435 & 439---Penal Code (XLV of 1860), Ss. 419, 420, 468 & 471---Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), S.4---Cheating by impersonation, forgery and using as genuine a forged document---Revisional jurisdiction of High Court and the Sessions Court---Scope---Revisional powers under S.439, Cr.P.C. were discretionary---High Court and the Sessions Court, while exercising such powers under Ss.435 & 439, Cr.P.C., besides considering legality of an impugned order, could also look into the propriety of any sentence as well as by going into the evidence and regularity of the proceedings of an inferior court---While exercising revisional powers under Ss.435/439, Cr.P.C. a finding of acquittal, could not be converted into one of conviction; in appropriate cases on setting aside of the finding of acquittal, the case could be remanded to the Special Court for decision on merits---Revision petition against the acquittal order passed by the Special Court (Offences in Banks) was competent in terms of Ss.435/439, Cr.P.C.

Habib Bank Limited v. The State 1993 SCMR 1853; Abdul Rehman Bajwa v. Sultan PLD 1981 SC 522 and Abdul Hafeez v. The State PLD 1981 SC 352 rel.

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

----Arts. 59, 78, 81 & 84---Proof of signatures or handwriting of a person---Modes.

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

----S. 510---Qanun-e-Shahadat (10 of 1984), Arts.59 & 78---Report of Handwriting Expert, admissibility as valid piece of evidence---Report of the Handwriting Expert did not figure in S.510, Cr.P.C.; same was neither per se admissible nor it could be read in evidence, until and unless proved in the manner prescribed under Art.78 of Qanun-e-Shahadat, 1984---Both the reports of Handwriting Expert, in the case, neither were duly proved by producing the scribe nor accused had been provided an opportunity to question the credence of both the reports by exercising their right of cross-examination---Such reports were neither admissible in evidence nor could be relied upon against the accused.

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

----Ss. 419/420/468/471---Criminal Procedure Code (V of 1898), Ss.435 & 439---Cheating by personation, forgery, using as genuine a forged document---Revision against acquittal---Ocular account produced by the prosecution did not formulate confidence-inspiring or reliable incriminating material against accused---Investigating Officer while facing cross-examination had admitted the suggestion of defence that no recovery was effected from the accused persons---Trial Court while appreciating the prosecution evidence, in a solitary manner had rightly acquitted both accused person giving them benefit of doubt---No illegality or misappraisal of evidence was in the impugned order of acquittal---Prosecution having not been able to bring the guilt home to accused persons beyond any shadow of doubt, impugned order, did not call for any interference by High Court through exercise of revisional jurisdiction under Ss.435/439, Cr.P.C.--- Petition was dismissed.

Malik Saeed Ijaz for Petitioner.

Muhammad Ali Shahab, D.P.-G. for the State.

2012 P Cr. L J 138

[Lahore]

Before Muhammad Qasim Khan, J

ZULFIQAR ALI---Petitioner

Versus

THE JUSTICE OF PEACE/SESSIONS JUDGE and 7 others---Respondents

Writ Petition No. 15058 of 2011, decided on 13th July, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B & 154---Constitution of Pakistan, Art.199---Constitutional petition---Registration of case---Petitioner had sought implementation of order of Justice of Peace, whereby S.H.O. was directed to record statement of the petitioner without any deletion or alteration and to proceed with the matter in accordance with law---Explicit order/direction, passed by Justice of Peace, must have been complied with in letter and spirit, when said order was not set aside by any court of law or the operation thereof had been stayed---Mere contention of respondents that same F.I.R. had already been registered was no ground to defy the direction of Justice of Peace---Even if, some case had already been registered, there was no bar regarding registration of another F.I.R. regarding the same occurrence---Tendency of reluctance on the part of Police hierarchy in obeying such directions of Justice of Peace was not only tantamount to nullifying the intent behind S.22-A(6), Cr.P.C., purely meant to provide justice to the concerned at their door step, but at the same time, that inaction would result in unwanted delay and was unnecessarily burdening the court for petty issues---No justifiable reason was available at all for S.H.O. to not have implemented the direction of Justice of Peace---S.H.O. should have registered F.I.R. against the culprits and then investigate the case, strictly in accordance with law---Order accordingly.

Mushtaq Hussain v. The State 2011 SCMR 45 rel.

Ch. Muhammad Akram Khan for Petitioner.

Ch. Hanif Shahid for Private Respondents.

Imtiaz Ahmad Kaifi, Additional Advocate-General with Nazam Sub-Inspector.

2012 P Cr. L J 147

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwaarul Haq, JJ

SHOAIB alias SHABOO---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 389-J of 2006 and Murder Reference No. 571 of 2006, heard on 6th June, 2011.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Important work for which statedly the prosecution witnesses had gone to the place of occurrence had not been disclosed by them before the Investigating Officer, in the F.I.R. and even before the Trial Court---Complainant and the other eye-witness, therefore, were chance witnesses of the incident---Complainant at the trial had brought an important improvement with regard to the blows given to the deceased with an intention to bring the ocular testimony in line with the post mortem report of the accused---Injured witness had not come forward to support the prosecution version and he had been given up by the prosecution having been won over by the accused, which had given rise to an adverse inference in terms of Art.129(g) of Qanun-e-Shahadat, 1984, that had he appeared before the court, he would not have supported the prosecution case---Three co-accused specifically alleged to have caused firearm injury to injured witness and "Danda" blows to the deceased, had been acquitted through the impugned judgment, but no appeal against their acquittal was filed either by State or by the complainant---So, very strong and independent corroboration was required to maintain the conviction of accused on the same evidence, which was lacking in the case---No crime empty having been recovered from the spot, recovery of the pistol and the report of Forensic Science Laboratory of the same being in working order was of no avail to prosecution---Motive specifically alleged in the F.I.R. was not established on record---Prosecution evidence was full of only chaff and there was not a single grain to sift---Accused was acquitted in circumstances.

Qazi Imran Zahid and Azhar Hussain Sahi, Defence Counsel at State expense for Appellant.

Ch. Muhammad Mustafa, Deputy Prosecutor-General for the State.

Rai Zameer-ul-Hassan for the Complainant.

Date of hearing: 6th June, 2011.

2012 P Cr. L J 159

[Lahore]

Before Sardar Tariq Masood, J

Haji JAMIL HUSSAIN---Petitioner

Versus

ILLAQA MAGISTRATE SECTION 30, MULTAN and 7 others---Respondents

Criminal Revision No. 148 of 2008, decided on 20th April, 2011.

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

----Ss. 395 & 412---Criminal Procedure Code (V of 1898), Ss.200 & 204---Dacoity and dishonestly receiving property stolen in the commission of a dacoity---Police after completion of investigation, submitted cancellation report before the Illaqa Magistrate, who agreed with the cancellation--- Complainant, during the process of investigation, being dissatisfied by the conduct of the Police, filed private complaint, wherein the same Illaqa Magistrate recorded preliminary evidence, but dismissed the same by impugned order---Illaqa Magistrate, while dismissing the private complaint observed that the witnesses had supported the existence of the occurrence, but while relying upon his order of cancellation report, dismissed the private complaint---Validity---Object of private complaint was to ensure transparency and the satisfaction of the complainant---While dealing with the private complaint, after recording cursory evidence, the court was not expected to examine the matter minutely---Such was not the stage where the material available on record was assessed in-depth, but was to assess as to whether a prima facie case was made out to proceed further with the matter for issuance of the process---After recording of the cursory evidence, the court had to assess the evidence produced before it by the complainant and decide whether sufficient ground was available for proceeding and at that stage it was not necessary for the complainant to prove his case beyond any shadow of doubt as required during the trial---Requisite conditions listed in S.204, Cr.P.C., were the presence of the sufficient ground and the satisfaction of the court to be ascertained from the facts placed before it---In order to proceed under S.204, Cr.P.C., the court had to see the cursory evidence produced before the court and could not refer any other evidence, which was not available in the said private complaint--- While dismissing complaint, Illaqa Magistrate was not justified to rely upon his observation in the order passed in the cancellation report---Impugned order passed by Magistrate, being patently illegal, was set aside, with direction to the Magistrate to decide private complaint in accordance with law after assessing the evidence produced by the complainant in the private complaint.

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

----Ss. 200, 204, 435, 439 & 439-A--- Constitution of Pakistan, Art.203---Revisional jurisdiction, exercise of---Superintendence and controlling powers of High Court---Private complaint filed by the petitioner/complainant having been dismissed by the Illaqa Magistrate, petitioner had directly approached the High Court---Objection was raised by the respondents with regard to maintainability of revision before the High Court and that the complainant had to file said revision before the Sessions Judge under S.439-A, Cr.P.C. instead of directly filing the same in the High Court---Validity---Where the High Court reached to a positive conclusion, that a particular order passed by the subordinate criminal court amounted to an abuse of the process of the court, High Court would not be powerless to rectify the injustice---High Court in exercising its powers of a superintendence and control, conferred by Art.203 of the Constitution was competent to correct any order passed by the subordinate court in violation of law---Section 439-A, Cr.P.C., was provided to remove the burden on the High Court and those powers were given to the Sessions Court for the said purpose---Both the courts had concurrent revisional jurisdiction---Any person could move High Court on its revisional side, and the High Court could even on its own motion, in case of any proceedings, the record of which had been called by itself or which had been put up for orders; or which otherwise would come to its knowledge, proceed to inquire into the matter in order to satisfy itself as to regularity of any such proceedings---If order of any subordinate court, was patently illegal; and same was brought to the notice of High Court, it could correct the same while invoking its revisional jurisdiction.

Khalid Ibn-e-Aziz for Petitioner.

Muhammad Abdul Wadood, D.P.-G. for the State.

Syed Athar Hussain Shah Bokhari and Altaf Ibrahim Qureshi for Respondents Nos. 3 to 7.

2012 P Cr. L J 170

[Lahore]

Before Sh. Najam-ul-Hasan and Abdus Sattar Asghar, JJ

WAQAR AHMAD and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 453-J of 2005, heard on 24th August, 2011.

Penal Code (XLV of 1860)---

----Ss. 302/394/460/34---Qatl-e-amd, voluntarily causing hurt in committing robbery, lurking house-trespass or house-breaking by night---Appreciation of evidence---Benefit of doubt---Initially, F.I.R. was got registered by the complainant against some unknown culprits, whose contours were described in the F.I.R.---Complainant had mentioned in the F.I.R. that he was sleeping and his wife heard voice of some foot-steps outside and she woke him up when culprits entered the house---Complainant, however improved his version at trial by narrating that at the time of occurrence, whole family including him was watching a movie on T.V., when they heard some noise---Only evidence available with the prosecution against accused was that he was identified by the eye-witnesses during identification parade---No other evidence was available on record to connect the accused with the commission of crime---No article was taken away from the house of the complainant by accused persons---No shot having been allegedly fired by accused, recovery of pistol did not lead to infer that the pistol recovered from accused was the same which had been taken by accused at the time of occurrence---Identification parade proceedings did not mention that eye-witness assigned some specific role to each of accused---Delay of seven days in holding the identification parade after the arrest of accused had made the same doubtful---Identification parade of both accused was held jointly---Eye-witnesses though had allegedly identified accused in the identification parade but they did not describe the role of each accused played by him in the occurrence---Identification parade which was not conducted in accordance with the rules, had lost its evidentiary value and was discarded from consideration---No evidence was available to the effect that accused had confessed the guilt before anyone about his involvement---Accused was not involved in any other criminal case---Complainant did not mention the name of accused in the F.I.R., despite accused was already known to the complainant---Prosecution, in circumstances, could not prove its case against accused beyond reasonable doubt---Benefit of doubt always would go in favour of accused---Accused was acquitted of the charge and was set at liberty, in circumstances.

Shafqat Mahmood and others v. The State 2011 SCMR 537 and Sabir Ali alias Fauji v. The State 2011 SCMR 563 rel.

Ms. Bushra Qamar, Defence counsel at State expense for Appellant.

Shahid Bashir Chaudhry, Deputy Prosecutor-General for the State.

Date of hearing: 24th August, 2011.

2012 P Cr. L J 187

[Lahore]

Before Shahid Hameed Dar and Altaf Ibrahim Qureshi, JJ

HIMAYUN KHAN SHAHEED---Appellant

Versus

SARFRAZ AKHTAR and another---Respondents

I.C.A. No. 265 of 2011 in Writ Petition No. 5250 of 2011, decided on 23rd June, 2011.

Criminal Procedure Code (V of 1898)---

----S. 154---Registration of F.I.R.---Grievance of the appellant in its present form could not invoke any penal provision of law, nor it had necessitated the registration of a criminal case, as he had been directed by the Supreme Court to take recourse to the civil law for redressal of his personal grievance---Contention that the vaccination in question had caused weakening of the eyesight of the appellant was a far-fetched cry, as the appellant did not appear to have any evidence which could render his plea cogent or believable---Appellant had merely relied upon his verbal asertions rather than hinting at some documentary evidence, which might show some nexus between his alleged claim of loss of eyesight and use of vaccination in question---Impugned order had been passed with sound reasoning and convincing arguments and it did not call for any interference---Intra-court appeal was dismissed in limine accordingly.

Mehr Ata-ur-Rehman for Appellant.

2012 P Cr. L J 196

[Lahore]

Before Sh. Najam-ul-Hasan and Rauf Ahmad Sheikh, JJ

MUHAMMAD NAWAZ alias BILLA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 462 of 2006 and Murder Reference No. 253 of 2006, decided on 6th April, 2011.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Accused was neither nominated in the F.I.R. nor in the private complaint---Complainant and the prosecution witnesses cited in the F.I.R. had stated that accused was not connected with the commission of the offence---Investigating Officer and the Court witnesses who were closely related to the nominated accused persons, had come forward to save them and in order to achieve this purpose they had made false statements against the accused---Recovery of rifle at the instance of accused was highly doubtful and the same according to the report of Forensic Science Laboratory was not used during the occurrence--- Evidence of court witnesses was not at all trustworthy and reliable---Accused could not be convicted on the basis of such deficient evidence---Trial Court had failed to appreciate the evidence on record properly---Accused was acquitted in circumstances.

Sardar Mohabbat Ali Dogar for Appellant

Shahid Bashir Chaudhry, D.P.-G for the State

Date of hearing: 5th and 6th April, 2011.

2012 P Cr. L J 206

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

SAEED ANWAR HAYAT---Appellant

Versus

M. ISRAR BHATTI and 3 others---Respondents

Criminal Appeal No. 512 of 2008, decided on 12th November, 2010.

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

----Ss. 109/161/409---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal Procedure Code (V of 1898), S. 417(2-A)---Abetment, public servant taking illegal gratification, criminal breach of trust, criminal misconduct---Appeal against acquittal---Trial Court while allowing the application under S. 249-A, Cr.P.C. had acquitted the accused---Prosecution witnesses in their statements recorded before the Investigating Officer had not levelled any allegation against the accused---Charges levelled against the accused, therefore, could not be proved at the trial---Trial Court was competent under S.249-A, Cr.P.C. to acquit the accused at any stage of the case after or prior to the framing of the charge without recording any evidence after looking into the material available on record---Double presumption of innocence having been gained by the accused after their acquittal, could not be interfered with, unless some obtrusive mistake floating on the record had been committed by the Trial Court---Impugned judgment of acquittal did not suffer from any glaring misreading or non-reading of evidence and was not illegal---Appeal was dismissed in circumstances.

Zahoor-ud-Din v. Khushi Muhammad and 6 others 1998 SCMR 1840 ref

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

----Ss. 249-A & 265-K---Acquittal of accused at any stage---Scope---Trial Court is empowered under Ss.249-A and 265-K, Cr.P.C. to acquit the accused at any stage of the case after or prior to the framing of the charge on perusal of the police papers, other material and legal aspect of the case.

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

----S. 417---Appeal against acquittal---Scope---After acquittal accused gains double presumption of innocence to his credit and such finding should not be interfered with in the absence of any obtrusive mistake on the part of the Trial Court in acquitting him.

Javed Bashir for Appellant

Mian Muhammad Awais Mazhar, Deputy Prosecutor-General Punjab for Respondents.

2012 P Cr. L J 217

[Lahore]

Before Syed Ijaz Hussain Shah, J

MUHAMMAD SHABBIR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No. 68 of 2011, decided on 24th May, 2011.

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

----Ss. 497 & 498---Penal Code (XLV of 1860), S. 489-F---Bail---Accused petitioner had been allowed bail by Trial Court on two conditions, firstly to file bail bonds in the sum of Rs.100,000 with one surety in the like amount to the satisfaction of Ilaqa Magistrate and secondly to deposit Rs.200,000 out of the disputed amount mentioned in the cheque with the Trial Court under protest entitling the complainant to take the said amount on Superdari subject to the final decision of the case---Second condition had only been assailed by the accused who could not secure his release on bail for the last four months simply due to non-deposit of Rs.200,000 in cash---Impugned condition in the bail order was quite harsh, which in fact had amounted to denying bail to the petitioner in a case not attracting the prohibitory clause of S.497(1), Cr.P.C.---Court, while dealing with an application for bail under S.497 or 498, Cr.P.C. had no power to insist upon deposit of cash security---Sessions Court by imposing the impugned condition had travelled beyond its jurisdiction---Impugned order to the extent of deposit of cash amount of Rs.200,000 with the Trial Court under protest was, consequently, set aside and petition was accepted accordingly.

Amir Sardar v The State 1990 PCr.LJ 414 and the State v. Muhammad Hasham Babar PLD 1997 Lah 605 rel

Syed Shafique Hassan v. Muhammad Shoaib Abbasi and others 2011 YLR 558 distinguished.

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

----Ss. 497/498---Penal Code (XLV of 1860), S. 489-F---Bail---Order of deposit of cash security by accused---Not permissible---Court while dealing with an application under S. 497 or 498, Cr.P.C. has no power to insist upon deposit of cash security in connection with the bail.

The State v. Muhammad Hasham Babar PLD 1997 Lah 605 ref

Ms. Waheeda Yaqoob Malik for Petitioner

Muhammad Abdul Wadood, Deputy Prosecutor-General Punjab for the State.

Muhammad Yousaf Chaudhry for Respondent No.2

2012 P Cr. L J 231

[Lahore]

Before Abdus Sattar Asghar, J

ABDUL SHAKOOR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No. 59/2011/BWP, decided on 21st November, 2011.

Penal Code (XLV of 1860)---

----Ss. 302/324/148/149--- Criminal Procedure Code (V of 1898), S.200---Qatl-e-amd, attempt to commit qatl-e-amd---Report under S.173, Cr.P.C. was submitted against accused persons and case was fixed for evidence---Accused party advanced their cross-version before the Police, but same was dropped during investigation---One of accused persons lodged a private complaint under Ss.302/324/148/149/506/354, P.P.C. against complainant party regarding the same occurrence---Trial Court passed impugned order to continue the trial in the private complaint filed by accused and stayed the proceedings in the prosecution case---Prosecution case and private complaint were cross cases and manifested two different versions with two sets of accused and two sets of witnesses to be examined--- Trial Court while passing impugned order had misconceived legal principles by staying the proceedings in the prosecution case---Propriety demanded that two cases should be heard together by the same court to avoid conflicting judgments---Impugned order was set aside and the Trial Court was directed to hear both the cases together to avoid any prejudice to the complainant and probability of conflicting decisions.

Nur Elahi's case PLD 1966 SC 708 distinguished.

Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522; Zulfiqar Ali Bhutto's case PLD 1979 SC 53; Rashid Ahmad v. Asghar Ali and others PLD 1986 SC 737; Mumtaz and others v. Mansoor Ahmad and another 1984 SCMR 221; Muhammad Dildar Malik v. Tahir Mahmood and another 1998 SCMR 652; Karim Bakhsh v. Zulfiqar and 4 others 1997 SCMR 334 and Syed Muhammad Hussain Shah v. Abdul Hamid and 5 others 1981 SCMR 361 ref.

Hafiz Shahid Nadeem Kahlon for Appellant

Ch. Asghar Ali Gill, Deputy Prosecutor-General for the State.

Muhammad Mumtaz Mustafa for Respondent No.2

Date of hearing: 21st November, 2011.

2012 P Cr. L J 255

[Lahore]

Before Abdus Sattar Asghar, J

ABDUL GHAFFAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 9412/B of 2011, decided on 10th August, 2011.

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

----Ss. 498 & 498-A---Penal Code (XLV of 1860), Ss.21, 420/468/471---Prevention of Corruption Act (II of 1947), S.2---Cheating, forgery, using as genuine a forged document---Stamp Vendor, a public servant---Protective bail, grant of---Stamp Vendor appointed by the District Collector who received the stamps from the Government Treasury for sale to the public; and received commission out of the public revenue for performance of his work, was in the service of the government, entrusted with performance of a public duty on behalf of the government and fell within the definition of 'public servant' in terms of S.21, clause ninth of P.P.C. and S.2 of Prevention of Corruption Act, 1947---Stamp vendor was duty bound to maintain the correct account and record of all such receipts and sale of stamp papers on the registers prescribed for that purpose---Offences alleged against stamp vendor, as one of accused of F.I.R., would make its case triable by the Special Court having exclusive jurisdiction in the matter---Accused could, in the first instance avail efficacious remedy before the appropriate forum---Stamp vendor, in the interest of justice, was allowed protective bail, in order to enable him to approach the relevant forum, which would automatically lapse on date up to which such bail was granted.

Crown v. Abdul Rehman PLD 1950 Lah 361 rel

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

----S. 21, Cl. ninth---Prevention of Corruption Act (II of 1947), S.2---Public servant---Stamp vendor---Public servant---Definition---Scope---Stamp vendor appointed by the District Collector who received the stamps from the government treasury for sale to the public and received commission out of the public revenue for performance of his work, was in the service of the government, entrusted with the performance of a public duty on behalf of the government and fell within the definition of 'public servant' in terms of S. 21, clause ninth of P.P.C. and S.2 of Prevention of Corruption Act, 1947.

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

----S. 21, Cl. ninth---Prevention of Corruption Act (II of 1947), S.2---"Public Servant"---Definition---Scope---"Stamp vendor" fell within the definition of "public servant" in terms of S.21, clause ninth, P.P.C. and S.2 of Prevention of Corruption Act, 1947.

Muhammad Aurangzeb for Petitioner

Nisar Ahmed Virk, D.D.P.-G for the State with Irshad A.S.-I

Zia ul Mustafa Bhatti for the Complainant

2012 P Cr. L J 285

[Lahore]

Before Ch. Muhammad Younis, J

MUHAMMAD TARIQ---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, DUNYAPUR and 3 others---Respondents

Writ Petition No. 9643 of 2011, decided on 29th July, 2011.

(a) Administration of justice---

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

Seema Farid and another v The State and another 2008 SCMR 839 rel

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

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

----Ss. 420/468/471---Constitution of Pakistan, Art.199---Constitutional petition---Cheating, forgery, using as genuine a forged document---Agreement to sell on the basis of which the suit for specific performance had been filed by accused petitioner, was alleged to be a forged document having never been executed by the father of complainant; so, nothing could prevent the complainant from initiating the criminal proceedings against the accused and the co-accused who had allegedly prepared the said forged document---Accused, if found guilty of preparing a forged document to deprive the complainant and his brothers and sister of their valuable property, could not be given benefit of his own wrong just on the ground that he had filed a civil suit for specific performance on the basis of a forged agreement to sell---Civil suits normally take a long time stretching over several years to conclude and if someone had committed a cognizable offence, he could not be spared and allowed to enjoy the fruit of his own wrong for a long time and deprive the aggrieved person of his valuable rights---Both civil and criminal proceedings could be carried out simultaneously---Pendency of civil suit did not create any bar at all to initiate criminal proceedings---Impugned order did not suffer from any illegality or perversity--- Constitutional petition was dismissed accordingly.

Seema Farid and another v The State and another 2008 SCMR 839 and Rafique Bibi v Muhammad Sharif and others 2006 SCMR 512 ref.

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

----S. 167---Penal Code (XLV of 1860), Ss.420/468/471---Physical remand of accused pending civil suit---Effect---Judicial Magistrate cannot refuse grant of physical remand of accused merely on the ground of pendency of a civil suit.

Muhammad Raziq Nawaz for Petitioner

2012 P Cr. L J 301

[Lahore]

Before Syed Ejaz Hussain Shah and Rauf Ahmad Sheikh, JJ

MAJID alias MAJU---Petitioner

Versus

THE STATE and another---Respondents

Writ Petition No. 10141 of 2011, decided on 12th September, 2011.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S.365-A---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Constitution of Pakistan, Art.199---Abduction for ransom---Suspension of sentence on the basis of compromise---Not allowed---Accused had been held guilty for abduction of a minor aged two years for ransom---Initial presumption of innocence in favour of accused, thus, had vanished---Complainant was stated to have forgiven the accused in the name of Allah Almighty and on this ground alone sentence of imprisonment for life awarded to him was sought to be suspended---Accused was involved in a heinous offence against the society---Cases of abduction for ransom had alarmingly increased---Persons involved in such nefarious activities had put the parents of the poor victims to the agony of sleepless nights---Society had been put to shock and fear due to the activities of the outlaws in cases of abduction for ransom, which must be checked otherwise the social structure and norms of the civil society might collapse---Act of the accused could not be lost sight of in the name of the compromise---Constitutional petition was dismissed accordingly.

Ghulam Ali v The State and another 1997 SCMR 1411 Ghulam Shabbir and 2 others v The State 2003 SCMR 663 and Aziz Khan and another v The State and another 2004 PCr.LJ 490 distinguished.

Aziz Khan and another v The State and another 2004 PCr.LJ 490 ref

Ch. Imran Khalid Amratsari for Petitioner

Mubashar Latif Gill, A.A.-G for the State

Sarfraz Ahmad for the Complainant

2012 P Cr. L J 311

[Lahore]

Before Shahid Hameed Dar and Mehmood Maqbool Bajwa, JJ

ABDUL MUNAAF---Petitioner

Versus

THE STATE and another---Respondents

Criminal Appeal No. 1439 and Criminal Miscellaneous No.1 of 2011, decided on 12th December, 2011.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S. 302(b)---Qatl-e-amd---Suspension of sentence---Convict despite being armed with weapon (Sota) did not use it at the time of the alleged occurrence---Lalkara attributed to the convict and allegation regarding his close linkage with the motive of the offence, could not be considered as circumstances, as co-convicts were burdened with---Abscondence of convict, however, drew a line of distinction between him and co-convicts but abscondence was not a conclusive proof of guilt as an innocent person may also run away, fearing reprisals of his adversaries or out of fear of being arrested by the police---Co-convicts, who were sentenced to identical terms of imprisonment as the convict had been admitted to bail by way of suspension of sentence despite their roles being graver than that of the convict---Sentence of convict was suspended, in circumstances, and he was released on bail accordingly.

Danyal Ijaz Chadhar for Petitioner

Khurram Khan, Deputy Prosecutor-General Punjab for the State.

Kh. Mehmood Ahmad for the Complainant

2012 P Cr. L J 333

[Lahore]

Before Mazhar Iqbal Sidhu, J

ZULFIQAR ALI BALOCH---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 11314/B of 2011, decided on 19th September, 2011.

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

----S. 497---Penal Code (XLV of 1860), S.161---Prevention of Corruption Act (II of 1947), S.5(2)---Public servant taking illegal gratification, criminal misconduct---Bail, refusal of---Accused, a Sub-Divisional Officer, had allegedly demanded Rs.50,000 as illegal gratification for solving the legitimate electric problem of the complainant, to which complainant did not agree, as he had already accomplished the entire legal formalities---Consequently, in a raid conducted by Magistrate tainted amount had been recovered from the accused---No malice had been seen on the part of the Magistrate or the Police Officer to become false witnesses against the accused, nor any defect was found in the raid proceedings---Sufficient material was available on record connecting the accused with the commission of crime---Alleged offence did not fall within the prohibitory clause of S.497(1), Cr.P.C., but this fact by itself did not create a right in favour of accused for grant of bail---Bail was declined to accused in circumstances.

Imtiaz Ahmed and another v The State PLD 1997 SC 545 ref

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

----S. 497---Bail---Offence not falling under prohibitory clause of S.497, Cr.P.C.---Legal proposition---Even in respect of offences not falling under the prohibitory clause of S.497, Cr.P.C., courts may decline to admit an accused to bail, if there exists a recognized exceptional circumstance.

Imtiaz Ahmed and another v The State PLD 1997 SC 545 ref

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

----S. 497--- Penal Code (XLV of 1860), S.161--- Prevention of Corruption Act (II of 1947), S.5(2)---Bail---Principles---Strict application of laws designed to eradicate the national evils of amassing wealth by illegal means---Guidelines.

Imtiaz Ahmed and another v The State PLD 1997 SC 545 ref

Asghar Ali Gill for Petitioner

Mian Muhammad Hussain Chotia for the Complainant

Syed Qamar Abbas, Standing Counsel for Pakistan with Khizar Hussain S.-I./FIA.

2012 P Cr. L J 352

[Lahore]

Before Sh. Ahmad Farooq and Sayyed Mazahar Ali Akbar Naqvi, JJ

FARRUKH SHEHZAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 754 of 2010, decided on 12th October, 2011.

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

----Ss. 242, 243, 244, 265-D, 265-E & 265-F---Confession made by accused during trial after denial of charge---Effect---Sections 242, 243 and 244, Cr.P.C. clearly depict that once a formal charge is framed and put to accused, which is denied by him under S.242, Cr.P.C., provisions of S. 243, Cr.P.C. shall ipso facto become inoperative and court has to proceed under S.244, Cr.P.C. by recording the prosecution evidence as well as that of the accused, if led in defence---Confessional statement made by accused after 2/3 dates of hearing after explicit denial of the charge at the time of framing the same, is of no legal effect in view of Ss. 244, 265-D, 265-E and 265-F, Cr.P.C.

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

----Ss. 242, 243 & 244---Admission of guilt by accused during trial---Procedure---When the accused pleads guilty during the course of trial in addition to his plea, independent evidence should be taken by the court.

King Emperor v. Kasim Walad Mohamed Saffer AIR 1925 Sindh 188 rel

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

----S.9(b)---Criminal Procedure Code (V of 1898), Ss.242, 243 & 244---Confession made by accused during trial---Issue to be determined was whether Trial Court could accept the offer of accused to record his confessional statement during trial at a belated stage, when at the time of framing of charge he had explicitly pleaded not guilty and claimed trial---Once a formal charge was framed and put to accused which was denied by him under S.242, Cr.P.C. then the provisions of S.243, Cr.P.C. would ipso facto become inoperative and court had to proceed under S.244, Cr.P.C. by recording the prosecution evidence and the defence evidence, if any---Confessional statement made by accused after two or three dates of hearing when he had clearly denied the charge at the time of framing the same was of no legal effect in view of Ss.244, 265-D, 265-E and 265-F, Cr.P.C.---Conviction and sentence of accused, thus, was not sustainable in law---Circumstances of the case did not demand its remand to Trial Court---Only a meagre quantity of "Charas" had been recovered from accused who was student of Engineering and he had already undergone the agony before the Police during investigation as well as before Trial Court---During the period of probation conduct of accused had been upto the mark---Accused was acquitted in the interest of justice in circumstances.

Faiz Muhammad v The State 1986 PCr.LJ 2250; Muhammad Sadiq v The State 1998 MLD 243; The State v. Jehandad Khan and 3 others 1998 PCr.LJ 592 and King Emperor v. Kasim Walad Mohamed Saffer AIR 1925 Sindh 188 ref.

Saqib Mehmood and Shah Zeb for Appellant

Rana Kashif Saleem Arfaa, Law Officer for the State.

Date of hearing: 12th October, 2011.

2012 P Cr. LJ 380

[Lahore]

Before Mehmood Maqbool Bajwa, J

MUHAMMAD KHALID---Petitioner

Versus

STATION HOUSE OFFICER and others---Respondents

Writ Petition No. 3485-Q of 2011, decided on 8th June, 2011.

Criminal Procedure Code (V of 1898)---

----S. 154---Second F.I.R., registration of---No line of distinction and demarcation had been made in 5.154, Cr. P. C. putting embargo to lay information before police even after the registration of the first report regarding the same occurrence.

Criminal Procedure Code (V of 1898)---

----S. 154---Penal Code (XLV of 1860),' S.324/34---Constitution of Pakistan, Art.199---Constitutional petition---Attempt to commit qatl-e­amd---Quashing of second F.I.R. ---Section 154, Cr. P. C. did not lay down any distinction and demarcation putting embargo on laying information before police even after registration of first report regarding the same occurrence---Perusal of accusation contained in both the reports suggested that the case was of two versions---Police Officer was complainant in the first F.I.R. which had suggested that son of respondent had sustained injuries due to aerial firing made by the accused petitioner in a marriage ceremony---Father of the injured had introduced the second version giving altogether different facts with reference to date, time and venue of occurrence, attributing direct firing to accused petitioner aiming at his son due to previous rivalry and enmity---Said second version had given entirely different facts suggesting commission of cognizable offence---Stance taken in the ' second F.I.R. was not an elaboration, explanation or amplification of the first F.I. R. and, therefore, registration of second F.I.R. was not legally barred---Order of registration of second F.I.R. made on the application of the father of injured by the Ex-Officio Justice of Peace was not open to any exception and consequently n'o question of quashing the same could arise---Constitutional petition was dismissed accordingly.

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 Javaid v. District Police Officer, Nankana Sahib and 6 others 2010 PCr.LJ 1629 and Mushtaq Hussain and others v. The State 2011 SCMR 45 rel

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 for the State

2012 P Cr. L J 396

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

NAHEED KHAN and 5 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 1519-B of 2011, decided on 27th October, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 196---Penal Code (XLV of 1860), Ss.153-A/298---Promoting enmity between different groups, uttering words etc. with deliberate intent to wound religious feelings---Bail, grant of---Accused allegedly were delivering pamphlets containing unhealthy language thereby wounding the religious feelings among the inhabitants of the locality---Reading the provisions of S.153-A, P.P.C. with S.196, Cr.P.C. would show that lodging the case against the accused without getting permission from competent authority had resulted in violation of mandatory provisions of law---Entire proceedings, thus, had become coram non judice---Section 298, P.P.C. was punishable with one year's R.I.---Accused were no more required by the Police for further investigation---Bail was allowed to accused in circumstances.

Bashir Ahmed v. The State 2000 PCr.LJ 902 rel.

Malik Asif Taufeeq Awan for Petitioners.

Malik Riaz Ahmed Saghla, Deputy Prosecutor-General Punjab for the State.

Malik Muhammad Kabeer for the Complainant.

Khalid, S.-I. with Police Record.

2012 P Cr. L J 408

[Lahore]

Before Amin-ud-Din Khan and Abdus Sattar Asghar, JJ

KHURSHEED BIBI---Appellant

Versus

MUHAMMAD QASIM and 4 others---Respondents

Criminal Appeal No. 245-2011/BWP, decided on 21st November, 2011.

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

----Ss. 302/34/364--- Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-e-amd, abduction---Appeal against acquittal---Appreciation of evidence---No time, date or place of alleged abduction of deceased by accused, was given by prosecution witnesses---F.I.R. was lodged after about 6-1/2 months of the alleged abduction of deceased and such inordinate delay in lodging the F.I.R. was not sufficiently explained---Testimony of prosecution witnesses due to material contradictions, lacked intrinsic value and inherent worth; and were not confidence-inspiring at all---Prosecution evidence on the dimension of last-seen appeared to be fabricated and same could not be relied upon---Plea of extra-judicial confession advanced by the prosecution was based on the testimony of witnesses who were real relatives---Testimony of said witnesses of extra-judicial confession, failed to establish four ingredients to prove the extra-judicial confession, i.e., that the extra-judicial confession was in fact made; that confession was voluntarily made; that it was truly made and that motivating force behind was proved---Said witnesses had also failed to explain as to why they did not take any step to apprehend accused, when he had made confession of guilt before them---Testimony of said witnesses, appeared to be fabricated and was neither confidence-inspiring nor reliable---Inordinate delay in lodging of F.I.R. and failure of prosecution to produce confidence-inspiring and reliable evidence on the dimensions of last-seen and extra-judicial confession, had made the case highly doubtful---Occurrence was unseen and case was of no evidence---Prosecution had not been able to bring the guilt home to accused persons beyond any shadow of doubt---Trial Court, in circumstances, had rightly acquitted the accused persons---Appellant/complainant having not been able to make out a case to interfere with the judgment of the Trial Court granting acquittal to accused, appeal against acquittal was dismissed, in circumstances.

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

----S. 164--- Essential ingredients of extra-judicial confession---Prosecution was bound to establish four essential ingredients to prove extra-judicial confession; firstly that such confession was in fact made; secondly that the confession was voluntarily made; thirdly that it was truly made; and fourthly that the motivating force behind was proved.

Abdul Manan Bhatti for Appellant.

2012 P Cr. L J 420

[Lahore]

Before Abdus Sattar Asghar, J

MUHAMMAD HUSSAIN---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Appeal No. 257/2010/BWP, decided on 4th October, 2011.

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

----Ss. 467/468/471/409---Prevention of Corruption Act (II of 1947), S.5(2)---Pakistan Criminal Law Amendment Act (XL of 1958), Ss.3 & 10(2)---Criminal Procedure Code (V of 1898), S. 417---Forgery, criminal misconduct---Appeal against acquittal---Maintainability---Appeal had been filed under S.417, Cr.P.C. by a prosecution witness in his private capacity against the order of Special Judge, Anti-Corruption, acquitting the accused---Section 417(1), Cr.P.C. did not furnish any right to a private person to lodge an appeal against an order of acquittal passed by any court other than the High Court---Appellant, in the present case, did not fall in the ambit of expression "aggrieved person" used in S.417(2-A), Cr.P.C.---Prevention of Corruption Act, 1947, is a special law and is silent regarding right of appeal---Right of appeal being a statutory right could not be inferred by implication on the basis of general law, nor could be assumed unless given by the statute---Special Judge is appointed under S.3 of the Pakistan Criminal Law Amendment Act, 1958, and S.10(2) of this Act regulates the filing of appeal against the order of Special Judge---Appeal filed by a private person under S. 417, Cr.P.C. against the judgment of acquittal passed by the Special Judge, Anti-Corruption, therefore was not maintainable and the same was dismissed in limine accordingly.

Syed Masroor Shah and others v. The State PLD 2005 SC 173 and Mian Khalid Rauf v. Ch. Muhammad Saleem and others PLD 2006 Lah. 147 ref.

(b) Appeal (Criminal)---

----Right of appeal, exercise of---Principle---Right of appeal is a statutory right which cannot be inferred by implication on the basis of general law, nor it can be assumed unless given by the statute.

Syed Masroor Shah and others v. The State PLD 2005 SC 173 and Mian Khalid Rauf v. Ch. Muhammad Saleem and others PLD 2006 Lah. 147 ref.

Ch. Zafrullah Ladhar for Appellant.

2012 P Cr. L J 428

[Lahore]

Before Abdus Sattar Asghar, J

ARSHAD HUSSAIN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 9591-B of 2011, decided on 8th August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Pre-arrest bail, grant of---F.I.R. was lodged with a delay of five months---Chances of false implication with deliberation, could not be ruled out---Photocopies of the Day Book, Quick Book, Vouchers and details of the transactions furnished by accused, had reflected that the matter pertained to rendition of accounts between the parties---Dispute, in circumstances, was of civil nature---Defence version of accused that in fact a blank cheque and stamp paper duly signed by him were furnished to the complainant as security when he joined as an employee, could not be discarded at all at bail stage---Accused joined the investigation and got recorded his version to the Investigating Officer as setforth in the petition---Dishonest and fraudulent intention in issuance of a cheque, was sine qua non to attract the offence under S.489-F, P.P.C., whereas case appeared to be that of rendition of accounts between the parties---Alleged issuance of cheque before the impugned audit disclosing any misappropriation, was necessarily a case of further probe---Offence under S.489-F, P.P.C. did not fall within the prohibitory clause of S.497, Cr.P.C.---Ad interim pre-arrest bail already granted to accused was confirmed in circumstances.

Ch. Masud Hussain for Petitioner.

Nisar Ahmad Virk, D.P.-G. along with Muhammad Aslam A.S.-I. for the State.

Haq Nawaz Baloch for the Complainant.

2012 P Cr. L J 437

[Lahore]

Before Sagheer Ahmad Qadri, J

WAHEED MURAD alias SHEIKHA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 331 of 2009, heard on 28th September, 2011.

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

----S. 376---Rape---Appreciation of evidence---Positive report of serologist qua the vaginal swabs of the victim loses its evidentiary value, if the report on the swabs sent to serologist for semen grouping is not produced in court.

Abid Javed alias Mithu v. The State 1996 PCr.LJ 1161 ref.

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

----S. 376---Rape---Appreciation of evidence---Evidence of the complainant victim girl was not corroborated by any other evidence---Statements of the victim and the eye-witness had contradicted each other on material aspects---Report of serologist was inconclusive as said report on the semen and the clothes of the victim sent to him for blood grouping had not been brought on record by the prosecution---Broken bangles of the victim secured by the Investigating Officer from the place of occurrence were not produced in court---'Chhuri' allegedly recovered from the accused, though produced in court, had no corroborative value in the given facts and circumstances of the case---No sufficient evidence was available on record to prove the guilt of accused---Accused was acquitted accordingly.

Mst. Ehsan Begum v. The State PLD 1983 FSC 204; Abid Javed alias Mithu v. The State 1996 PCr.LJ 1161; Gulsher and another v. The State 2004 YLR 602; Habib Ullah and others v. The State and others 2007 PCr.LJ 1851; Muhammad Khan v. The State and others 2008 SCMR 1331 and Kela and others v. The State 1968 PCr.LJ 185 ref.

Malik Itaat Hussain Awan for Appellant.

Muhammad Usman, Deputy District Prosecutor-General for the State.

Muhammad Aslam Sheikh for the Complainant.

Date of hearing: 28th September, 2011.

2012 P Cr. L J 444

[Lahore]

Before Manzoor Ahmad Malik and Altaf Ibrahim Qureshi, JJ

MUHAMMAD SADIQ and another---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeal No. 338/2003/BWP and Criminal Revision No.157 of 2003, heard on 11th October, 2011.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 377---Qatl-e-amd, committing sodomy---Appreciation of evidence---Benefit of doubt---No delay in reporting the matter to the Police---Version of the complainant regarding occurrence was supported by the statement of a witness which was corroborated by witness of last seen---No evidence was available for false implication of accused in the case---Evidence of related witnesses could not be discarded merely on the ground of inter se relationship or relationship with the deceased, unless they had some enmity for false implication of accused, which lacked in the case---Report of the Chemical Examiner, with regard to offence under S.377, P.P.C., being in positive, prosecution had fully proved its case to the extent of S.377, P.P.C., against the accused---Sentence and conviction of accused under section 377, P.P.C. was maintained, in circumstances---Doctor had opined that the cause of death was not the sodomy, but was asphyxia, throttling or gagging due to mud---No evidence was available on record that accused pressed the throat of the deceased or caused death of the deceased with anything else---Charge of murder, in circumstances, had not been proved by the prosecution---Benefit of doubt was extended to accused and he was acquitted of said charge---Appeal of accused was dismissed to the extent of conviction and sentence under S.377, P.P.C., whereas same was allowed to the extent of S.302, P.P.C.---Since accused had been acquitted from the charge under S.302, P.P.C., there was no substance in criminal revision filed by the complainant for enhancement of sentence of accused---Order accordingly.

Jam Nazir Ahmad Ghazali and Sardar Zafar Iqbal Khan for Appellants.

Latif-ur-Rehman for the Complainant.

Muhammad Ali Shahab, Deputy Prosecutor-General for the State.

Date of hearing: 11th October, 2011.

2012 P Cr. L J 482

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

TARIQ MASIH alias BADSHAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1669 of 2005 and Criminal Revision No. 1013 of 2005, heard on 27th December, 2011.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Occurrence was unseen---Matter was firstly reported to the Police after a delay of more than one and a half months and nothing was on record convincing the court to believe that due to unavoidable circumstances, the complainant did not report the matter to the Police---Both the prosecution witnesses of last seen, remained mum for a considerable long time---Credibility of a witness would become highly suspicious, if his statement under S.161, Cr.P.C. was recorded with an inordinate delay without offering any plausible explanation thereto---Nowhere specifically was mentioned that it was the accused on whose pointation the dead body of the deceased was recovered---Identification of the dead body was kept in vacuum---Statement of accused under S.164, Cr.P.C. was recorded sixteen days after taking him into custody---Such fact alone had shattered the prosecution version, especially when on the alleged disclosure of accused and his co-accused, the Investigating Officer had received dead body of deceased on the day when accused was taken into custody---No hurdle existed with accused to delay his confessional statement till sixteen days---Even otherwise, when delayed confessional statement was juxtaposed with the findings of the Doctor, that squarely would create irreparable dents in the prosecution story---Recovery of clothes and shoes of the deceased, were not incriminating material to connect accused with the commission of offence; as those were made after almost two months of the occurrence---To base conviction on circumstantial evidence, there should be interlinking chain of credible and cogent corroborative evidence available on the record, which was totally missing in the case---Evidence adduced by the prosecution did not contain sufficient incriminating material, which could make basis for any accused on capital charge---Matter was reported to the Police after a delay of one month and twenty days without plausible explanation---Belated recording of statement of the prosecution witnesses of last seen especially when complainant happened to be father of the deceased, the unproved cause of death of deceased contrary to prosecution version and the delay in making confessional statement, which was recorded after 16 days of arrest of accused, were circumstances, which squarely created doubt/suspicion in the authenticity of the prosecution story---Benefit of every doubt was to be resolved in favour of accused---While adopting the principle of abundant caution that the court should let off 100 guilty, but should not convict one innocent person, conviction and sentence recorded in the judgment of the Trial Court, was set at naught---Accused was acquitted of the charge and was directed to be released, in circumstances.

Fazal Rehman and others v. The State and others PLD 2004 SC 250 ref.

Muhammad Khan v. Maula Bakhsh 1998 SCMR 570; Khalid Javed and another v The State 2003 SCMR 1419; Muhammad Pervez and others v The State 2007 SCMR 670; Sarfraz Khan v The State and 2 others 1996 SCMR 188 and Karamat Hussain v The State 1972 SCMR 15 rel

(b) Precedent---

----Each criminal case had its own peculiar features and no hard and fast rule or criteria existed for general application of case law.

Haji Muhammad Nazir and others v. The State 2008 SCMR 807; The State v. Muhammad Yaqoob and others 2001 SCMR 308 and Imtiaz Ahmed v. The State 2001 SCMR 1334 rel

Mustansar Hayat for Appellant

Arshad Mehmood, Deputy Prosecutor-General for the State.

Akhtar Hussain Bhatti for the Complainant (Petitioner in Criminal Revision No.1013 of 2005)

Date of hearing: 27th December, 2011.

2012 P Cr. L J 498

[Lahore]

Before Sh. Ahmad Farooq, J

Pir ALLY IMMRAWAN SAHAR ESSAPHEL---Petitioner

Versus

JUDGE ANTI-TERRORISM COURT and others---Respondents

Writ Petition No.15812 of 2011, decided on 26th January, 2012.

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

---S. 200---Constitution of Pakistan, Art. 199---Penal Code (XLV of 1860), Ss.337-F/506-B---Anti-Terrorism Act (XXVII of 1997), S. 7(c)---Constitutional petition---Ghayr-jaifah, criminal intimidation, acts of terrorism---Assault in court room---Private complaint---Limitation---Complaint of petitioner had been dismissed by the Trial Court mainly on ground of delay in filing complaint---Respondent had been unable to rebut the petitioner's contention that no limitation was provided in criminal law for filing complaint---Petitioner had been continuously pursuing the case and in that respect he had also lodged an F.I.R. and on being disappointed from police officials he resorted to filing the private complaint---Petitioner had supported his complaint by recording his statement as witness, which was corroborated by the statement of other witness---Trial court was not justified in dismissing the complaint---Constitutional petition was accepted and order of Trial court was set aside.

Muhammad Fiaz Khan v. Ajmer Khan and another 2010 SCMR 105 rel.

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

----S. 200---Private complaint---Delay in filing---Limitation---Delay in filing complaint is not by itself fatal except under very special circumstances.

Muhammad Fiaz Khan v. Ajmer Khan and another 2010 SCMR 105 quoted.

Barrister Syed Muhammad Javed Iqbal for Petitioner.

Jafferi Ahmed Rauf and Shahid Mubeen for Respondents.

Dates of hearing: 20th December, 2011 and 5th January, 2012.

2012 P Cr. L J 507

[Lahore]

Before Abdus Sattar Asghar, J

ZAFAR IQBAL---Appellant

Versus

THE STATE and 5 others---Respondents

Criminal Appeal No. 444 treated as Criminal Revision No.225 of 2011/BWP of 2011, decided on 21st December, 2011.

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

----Ss. 417(2-A), 245, 249-A, 423 & 439-A---Penal Code (XLV of 1860), Ss.337-A(ii)/337-L(2)/34---Causing Shajjah-i-Mudihah and other hurt---Appeal against acquittal---Conversion of appeal into revision petition---Scope---Order of acquittal under S.249-A, Cr.P.C., was not appealable in terms of S.417, Cr.P.C. and could be assailed through revision under S.439-A, Cr.P.C.---Remarkable difference existed between the orders of acquittal passed under S.245, Cr.P.C. and under S.249-A, Cr.P.C.---Order of acquittal passed under S.245, Cr.P.C. would be appealable under S.417, Cr.P.C. as the Appellate Court could upset the order of acquittal under S.423, Cr.P.C. and pass the order of conviction accordingly---In case of acquittal under S.249-A, Cr.P.C., a finding of acquittal could not be converted into conviction in the absence of full evidence---In the present case, acquittal was granted under S.249-A, Cr.P.C. merely on the ground that prosecution had not produced any evidence showing lack of interest---Appeal being incompetent, was converted into revision petition in terms of S.439-A, Cr.P.C., in circumstances.

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

----Ss. 417, 249-A & 439-A--- Penal Code (XLV of 1860), Ss.337-A(ii)/337-L(2)/34--- Causing Shajjah-i-Mudihah and other hurt---Appeal/revision petition against acquittal---Before passing an order of acquittal in terms of S.249-A, Cr.P.C., after providing opportunity of hearing to accused and the Prosecutor, the Trial Magistrate was bound to apply his judicious mind on vital ingredients i.e. for reason to be recorded he considered that the charge was groundless or that no probability existed of accused being convicted of any offence---For that purpose he was obliged to look into the material available on record---Impugned order of acquittal had shown that acquittal in favour of accused was granted merely on the ground that prosecution had not been able to produce any evidence showing lack of interest---Delay in producing evidence by the prosecution, ipso facto was no ground to invoke the authority under S.249-A, Cr.P.C. and that alone could not be a valid ground for acquittal of accused under S.249-A, Cr.P.C.---Impugned order did not reveal that prosecutor was provided opportunity of hearing---Impugned order also failed to mention that the charge was groundless; or there was no probability of accused being convicted in any offence---Record had further revealed that since 18-2-2011 uptill 18-7-2011, the Trial Court had been passing the order to summon the witnesses through their bailable and non-bailable warrants of arrest---Trial Court had failed to record any result of warrants of arrest of the witnesses on any of the date of hearing---Interim orders also failed to refer any report of any process server upon the warrants of arrest---No reason was assigned in the said interim order for non-recording the statement of prosecution witnesses---Trial Court had not been able to take effective measures to procure the attendance of prosecution witnesses as provided in Chapter VI of the Criminal Procedure Code, 1898---Impugned order of acquittal under S.249-A, Cr.P.C., which was illegal, based on unlawful exercise of authority, was not tenable in the eye of law---Revision petition was allowed and impugned order was set aside, in circumstances.

Muhammad Ahmed Baloch for Appellant.

Ch. Asghar Ali Gill, D.P.-G. for the State.

Mian Noor Ali Watto for Respondents Nos. 2 to 5.

2012 P Cr. L J 517

[Lahore]

Before Manzoor Ahmad Malik and Altaf Ibrahim Qureshi, JJ

MUHAMMAD SHABBIR alias SHEROO and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No. 168-J of 2008 and Murder Reference No.11/2009/BWP of 2009, heard on 20th October, 2011

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

----S. 302(b)--- Qatl-e-amd--- Appreciation of evidence--- Sentence, reduction in---F.I.R. was recorded with promptitude without any delay, which had ruled out the chances of consultation, deliberation or concoction of the story for false implication of accused as a single accused---Complainant who was father of the deceased, had fully supported the prosecution version narrated in the F.I.R.---Complainant though was closely related to the deceased being father, but mere close relationship of the witnesses inter se and with the deceased, was not sufficient to term them as interested witnesses---Defence failed to bring on record any enmity or mala fide on the part of the complainant for false implication of accused by letting off the real culprit---Even otherwise substitution of the real culprit was a rare phenomenon where the complainant was father of the deceased---It was a broad-daylight occurrence---According to the site plan, the place of occurrence located within the residential houses and the house of the complainant was also shown in the said lane---Time, place and the manner in which the occurrence took place led one to draw an inference that occurrence could not go unnoticed as the presence of the persons of the locality at the relevant time was quite natural and the deceased in injured condition was immediately shifted to hospital---Evidence of the complainant, was supported by medical evidence inspiring confidence and it had been rightly relied upon by the Trial Court for recording conviction against accused---Recovery of offensive weapon/Repeater .12 bore gun, empties and blood-stained earth, had fully been proved---Prosecution, however, could not prove motive through evidence of unimpeachable character---Medical evidence produced by the prosecution had provided full support to ocular account---Defence had failed to bring on record any material to show that the occurrence had not taken place at the time given by the prosecution; and its time was changed to suit the prosecution for false implication of accused---Prosecution had succeeded in bringing home guilt to accused for committing qatl-e-amd of deceased through evidence of unimpeachable character---Conviction of accused recorded by the Trial Court under S.302(b), P.P.C., was maintained, in circumstances, but sentence of death was converted to life imprisonment.

The State v. Muhammad Yasin 1995 SCMR 635; Muhammad Ayub and another v. The State 1983 PCr.LJ 710 and Arshad Mehmood v. The State 2005 SCMR 1524 rel.

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

----S. 302(b)---Qatl-e-amd---Sentence---Conversion of death sentence to life imprisonment---Prosecution had failed to establish the motive alleged in the F.I.R. and there existed previous enmity between the parties---Immediate cause, which resulted into commission of the crime, had not been brought on the record---Motive was not proved and immediate cause of occurrence had remained shrouded in mystery---Death sentence awarded to accused by the Trial Court was converted to life imprisonment---Benefit of S.382-B, Cr.P.C. was also granted to the accused--- Impugned judgment stood modified accordingly.

Ghulam Abbas v. Mazhar Abbas and another PLD 1991 SC 1059 and Muhammad Tariq v. The State 2003 SCMR 531 rel.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Quality and not the quantity of evidence which was required to bring home charge to accused; and even the evidence of solitary witness could be relied upon, if the same was found to be reliable being trustworthy and of unimpeachable character---No particular number of witnesses was required to prove the prosecution story---Even solitary statement of a witness appearing reliable and confidence inspiring was deemed sufficient for bringing home guilt of accused.

Akbar v. The State 2007 MLD 1511; Rahim Shah v. The State and another 2004 PCr.LJ 1129 and Arab Gul v. Mir Shah Baz and another 2004 PCr.LJ 1138 rel.

Syed Asim Ali Bukhari and Muhammad Naeem Bhatti for Appellants.

Mian Zafar Iqbal for the Complainant.

Asghar Ali Gill, Deputy Prosecutor-General for the State.

Date of hearing: 20th October, 2011.

2012 P Cr. L J 565

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD ILYAS---Petitioner

Versus

MUHAMMAD NAZIR and another---Respondents

Criminal Miscellaneous No. 6379-BC-11, decided on 28th June, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.302, 324 & 34---Qatl-e-amd and attempt to commit qatl-e-amd---Application for cancellation of bail---Details of occurrence, no doubt were heart rendering as six persons were murdered and two wounded during the occurrence, but courts were not driven by sentiments---Data/evidence collected by the Investigating Officer during the course of investigation would matter, while adjudicating upon the bail plea of accused---Joint role of firing had been ascribed to all accused persons---Accused was arrested about 8 months after registration of F.I.R. and was admitted to bail---Plea of alibi raised by accused during investigation was verified by the Investigating Officer--- Accused underwent physical remand for 14 days, but nothing was recovered at his instance---Bail ought not be withheld nor cancelled as punishment---Considerations for cancellation of bail were altogether different from the one, meant for grant/refusal of bail under S.497, Cr.P.C.---Commencement of trial and conclusion thereof could reprieve the anxiety of the applicant/complainant, but the situation as it persisted, did not require that the facility of bail granted to accused could be recalled only for the satisfaction of whimsical grudge of the complainant---Application for cancellation of bail, was dismissed in circumstances.

Mst. Irshad Begum v. Muhammad Afzal and another 1985 SCMR 1691 and Akmal Masih and others v. Salamat Masih and 4 others 1988 SCMR 918 rel.

Muhammad Alamgir Khan for Petitioner.

Rana Tasawar Ali Khan, Deputy Prosecutor-General Punjab for the State with Hameed S.-I.

Azhar Ilyas Bajwa for Respondent No. 1.

2012 P Cr. L J 581

[Lahore]

Before Ijaz Ahmad Chaudhry, C.J

Mst. NEELAM PARVEEN---Petitioner

Versus

THE STATE and 7 others---Respondents

Criminal Revision No. 952 of 2009, heard on 5th July, 2011.

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

----Ss. 200, 204 & 247---Illegal Dispossession Act (XI of 2005), Ss.3 & 4---Prevention of illegal possession of properly---Second complaint, maintainability of---Complainant filed private complaint under S.4 of Illegal Dispossession Act, 2005, wherein evidence was recorded and accused were summoned to face the trial---When proceedings in the said complaint were going on, the complainant absented herself from appearance before the Trial Court---Complaint was dismissed due to non-appearance of the complainant, which resulted in acquittal of accused---Complainant instituted second complaint, which too was dismissed---Validity---Under provisions of 5.247, Cr.P.C., the Trial Court had absolute jurisdiction to dismiss the complaint due to non-appearance of the complainant at subsequent date of hearing after summoning the accused---Counsel for the complainant was present and in his presence case Was adjourned to the date on which complaint was dismissed and accused was acquitted---Complainant, in circumstances, was well aware of the date of hearing and she in circumstances, could not say that her absence on the date complaint was dismissed, was neither intentional nor deliberate---Second proviso to S.247, Cr.P.C., provided that nothing in said section would apply where the offence of which accused was charged was either cognizable or non­compoundable---Offence committed by accused was non-cognizable and the Trial Court had rightly passed the order, whereby complaint was dismissed and accused were acquitted---Contention that Trial Court was not conferred with the powers to adjudicate upon the matter was repelled.

Bashir Ahmed v. Akbar and others 1995 PCr.LJ 1995 distinguished.

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

----Ss. 200, 203 & 247---Illegal Dispossession Act (XI of 2005), Ss.3 & 4---Dismissal of first complaint---Second complaint, maintainability of---First Complaint was not at its preliminary stage, but was at the stage of its maturity---Second complaint could only be filed, if the proceedings were at initial stage requiring the complainant to establish genuiness of allegations set forth therein, so as to summon accused to face trial---Provisions of S.247, Cr.P.C. had clearly bestowed jurisdiction to the Trial Court to dismiss the complaint after summoning of accused at any date of hearing and in such circumstances the remedy available with the complainant was to file an appeal against acquittal under S.417(2), Cr.P.C., and not to file second complaint on the same subject-matter.

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

----Ss 3 & 4---Criminal Procedure Code (V of 1898), 5.200---Prevention of illegal possession of property---Complaint against---Claim of the petitioner/complainant was that she was widow of owner of disputed property and that after the death of her husband, she remained in touch with the property till 1995, but thereafter, the respondents/accused had grabbed her land with connivance of previous owners---Respondents/accused also claimed themselves to be the bona fide purchasers of the disputed land through mutation sanctioned in their favour after fulfilling all the legal requirements---Matter in issue, in circumstances, seemed to be a civil dispute between the parties and petitioner could get her possession restored by setting the civil law into motion---Best way for the petitioner was to file civil suit for restoration of her ownership or the alleged possession and not institution of private complaint under Illegal Dispossession Act, 2005---Petitioner had herself admitted in her private complaint that she was not in physical possession of land in dispute and the allegation levelled by her that she was dispossessed by using force, was altogether contrary to the facts of the case---Respondents possessed mutation in their favour, which had shown that they did not belong to Qabza group or were hardened criminals---Even the contents of the complaint, instituted by the petitioner, did not have any such allegations, which fell within the ambit of S.3 of Illegal Dispossession Act, 2005---No jurisdictional infirmity, illegality of approach, irregularity of procedure or perversity of reasoning had been found, so as to warrant interference of High Court in revision in the impugned order---Petition was declined.

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

----Preamble, Ss.3 & 4---Prevention of illegal possession of property--Illegal Dispossession Act, 2005, had been inducted into criminal law for the intruders called "property grabbers ", also commonly known in local style of speaking as "Qabza Groups" or "Land Mafia", whose primary chore or errand was to illegally or forcibly take possession of immovable property belonging to other persons by way of utilizing force---Contents and objectives of Illegal Dispossession Act, 2005, attracted only to the said persons and same did not apply on the persons who had no credentials or antecedents of being properly grabbers or being members of 'Qabza Group' or 'Land Mafia'.

Zahoor Ahmad and 5 others v The State and 3 others PLD 2007 Lah 231 and Bashir Ahmad v.. Additional Sessions Judge, Faisalabad and 4 others PLD 2010 SC 661 rel

Ijaz Anwar for Petitioner.

Abdus Samad, Additional Prosecutor-General for the State

Rana Hamid Iqbal for Respondents Nos. 2, 6, 7 and 8

Nemo for the Remaining Respondents.

Date of hearing: 5th July, 2011.

2012 P Cr. L J 611

[Lahore]

Before Syed Iftikhar Hussain Shah, J

MUHAMMAD ABBAS---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 2221-B of 2011, decided on 20th June, 2011.

(a) Criminal Procedure Code (V of 1898)

----S. 497(2)-Penal Code (XLV of 1860), Ss.392/411---Robbery---Bail, grant of--- Further inquiry--- Accused along with his co-accused had allegedly committed robbery in the warehouse of Fertilizer Company and had taken away 231 bags of Urea fertilizer, a sum of Rs.8000, a mobile phone and a wrist watch of the complainant---Description of the accused was not given in the F.I.R.---Accused was not put to the test of identification parade---Nothing had been recovered from the accused---SIM of the mobile phone had been produced before the Investigating Officer by the brother of the accused and such recovery could not be said to have been effected on the pointation of accused and was not helpful to the prosecution---Case against accused needed further inquiry and he was allowed bail in circumstances.

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

----S. 156--- Investigation--- Recoveries--- Admissibility--- Scope---Recoveries effected only on the pointation of accused are admissible as incriminating evidence against the accused.

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

----S. 156---Investigation---Trend of investigating officer to treat articles produced by someone else, same as recovered on pointation of accused---Deprecated---Trend developed amongst investigating officers to treat the articles produced by someone else before them as the same recovered on the pointation of accused on the ground that the accused had disclosed that case property was lying with such and such person and accused had made a request to such a person to produce the same to the police---Such type of recovery is not on the pointation of accused and cannot be relied upon by the courts.

Syed Muhammad Jafar Tayyar Bukhari for Petitioner.

Malik Muhammad Jafar, Deputy Prosecutor-General for the State.

2012 P Cr. L J 625

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD IRFAN and others---Petitioners

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No. 2152-B of 2010, decided on 19th January, 2011.

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

----S. 497(2)--- Penal Code (XLV of 1860), Ss. 3 02/324/33 7-A(i)(ii)/ 337-F(i)/337-F(iii)/337-F(v)/337-L(2)/427/404/148/149-=- Qatl-a-antd, attempt to commit qatl-e-amd, dishonest misappropriatiop of property of the deceased person, rioting armed with deadly weapons---Bail, grant of---Accused along with his co-accused being armed with klashnikovs had allegedly killed four persons by firing---Complainant, however, on the same day through his supplementary statement had entirely changed his version given in the F.I.R. and let off the three accused including the present accused specifically involving other persons---Was yet to be determined by Trial Court as to which of the attributions, are in the F.I.R. and the other in the supplementary statement or in the statement under S.512, Cr. P. C. was correct or believable against the accused---Such fact alone was sufficient to bring the case of accused within the scope of further inquiry as envisaged under S.497(2), Cr. P. C. ---Abscondence of accused could not impede the grant of bail to him, if his case fell within the ambit of further inquiry-Commencement of trial was also no ground to refuse bail to accused if his case was otherwise covered by S.497(2), Cr. P. C., which was his legal right---Only three formal witnesses had been so far examined by the prosecution and the trial was not likely to be concluded soon---Accused was admitted to bail in circumstances.

Mudassar Altaf v. State 2010 SCJ 504; Shaukat Ilahi v. Javed Iqbal and others 2010 SCMR 966; Sardar Munir Ahmad Dogar v. The State PLD 2004 SC 822; Ghulam Sarwar v. The State 2010 MLD 680 and PLD 1989 SC 585 ref.

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

----Ss. 161 & 156---Supplementary statement---Nature and value---Supplementary statement is a recent innovation, not recognized by law, devised by incompetent, incapable and dishonest Investigating Officers to cut short the process of investigation without realizing that such a short cut is generally destructive to the prosecution case---Practice of manufacturing and fabricating supplementary statements has to be checked by drastic measures--- Police high-ups and the Authorities at the helm of affairs should perceive the horrendous consequences caused by such innovation--- Unbridled powers enjoyed by the police would do more harm instead of doing good to the oppressed.

(c) Criminal Trial---

----Abscondence---Effect---Fugitive from law who cannot offer any explanation for his long standing abscondence or disappearance, loses some of his normal rights guaranteed under the substantive taw as well as the procedural law.

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

----S. 497(2)---Penal .Code (XLV of 1860), Ss. 302 & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Bail, grant of---Further inquiry-=-Abscondence---Effect---Once the court comes to the conclusion that the case of accused falls within the ambit of further inquiry into his guilt, his abscondence cannot impede the grant of bail to him.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302 & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---Commencement of trial---Effect---Commencement of trial is no ground to refuse bail to an accused if his case is otherwise covered by S.497(2), Cr.P.C. as it necessarily relates to his legal right.

PLD 1989 SC 585 ref.

Ch. Mehmood Akhtar Khan for Petitioners.

Pirzada Noor Ali Shakoori for the Complainant.

Malik Riaz Ahmad Saghla D.P.-G. and Muhammad Iftikhar A.S.-I. for the State.

2012 P Cr. LJ638

[Lahore]

Before Muhammad Qasim Khan, J

GHULAM QADIR FARAZ alias BABAR---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION SADDAR KAMOKE and 2 others-Respondents

Writ Petiiion No.10989 of 2011, decided on 9th June, 2011.

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

----Ss.371-A & 37I-B---Criminal Procedure Code (V of 1898), S. 103---Constitution of Pakistan, Art.199---Selling and buying person for purposes of prostitution---Constitutional petition for quashing of proceedings---Place where raid was conducted by the Police on spy information, was not public place, but was owned and in the possession of a private individual---Application of Ss.371-A & 371-B, P.P.C.---Scope---Neither search warrants were obtained by the Police, nor any effort was made by the Police in that behalf---No respectable from the locality was associated in the impugned raid proceedings---Alleged police raid, in such a situation, could not be termed any better than an "intrusion ", which was an act prohibited by the Constitution, Law and the Holy Quran---Legislators in their wisdom, having regard to the existing norms of the society, were conscious of the fact that if cases under such offences were permitted to be registered on spy information or on the complaints lodged by anonymous persons, such practice would have encouraged false reports involving innocent men or women for ill designs---Story as narrated in the F.I.R. seemed to be illogical, irrational. and implausible, as nobody could possibly run a brothel house in the residential area---Police Officials by not obtaining search warrants for raiding the places in question, had committed glaring illegality in not following the mandatory provision of S.103, Cr.P.C. and in circumstances had violated Art.14 of the Constitution---Police functionaries, could not be permitted to flout the provisions of law, which otherwise, would amount to derailing the entire judicial system---Provision of Ss. 371-A & 371-B, P.P.C. only apply to persons who sell or purchase any person with the intent that such person would be used for the purpose of prostitution or illicit intercourse---In the present case no material was available against accused to substantiate the commission of such offence---Non-observance of legal requirements by the Police, not only had given a strong impression about the mala fides of the Police, but it was also indicative of the fact that all was done by the concerned Police Officials in extreme haste, to cover up and shield the wrong, which they had done to the petitioner/accused person---Continuation of investigation, prosecution or the trial, in circumstances would amount to sheer abuse of process of law, which would not be regarded in meeting the ends of justice---F.I.R. registered against accused and all proceedings, thereunder, were ordered to be quashed, in circumstances.

Riaz v. Station House Officer, Police Station Jhang City and 2 others PLD 1998 Lah. 35 and Ghulam Sakina v. State 1991 PCr.LJ 568 ref.

(b) Constitution of Pakistan---

----Art. 199???? Constitutional petition---Scope---Quashing of F.I.R---When on the face of it, F.I.R. was registered with mala fide or prosecution of a .criminal case was patently against the provisions of law, or otherwise no case could possibly be made out, High Court had ample jurisdiction to quash the same, as no useful purpose would be served to keep such matters pending, rather same would amount to abuse of process of court of law---Mere availability of alternate remedy could not constitute a bar upon the jurisdiction of High Court to entertain a constitutional petition and to exercise its jurisdiction, if the circumstances so warrant---When registration of F.I.R. and proceedings thereon, were patently illegal or illegality was floating on the surface, to refuse interference under Art.199 of the Constitution would in fact amount to acting in aid of injustice and plea of alternate remedy would lose its legal significance---F.I.R. was ordered to be quashed.

Javad Iqbal Malik for Petitioner.

Sayyed Nayyar Abbasi Rizvi, A.A.-G. with Yaqoob Sub-Inspector.

2012 P Cr. L J 660

[Lahore]

Before Ijaz Ahmad Chaudhry and Shahid Hameed Dar, JJ

SHAHBAZ ALI and others---Appellants

Versus

THE STATE--Respondent

Criminal Appeals Nos.361-J of 2004, 2118 and 2117 of 2005, Murder Reference No.44 of 2005 and Criminal Revision No.94 of 2005, heard on 14th September, 2010.

(a) Penal Code (XLV of 1860--

----Ss. 302(b) & 302(c)---Qatl-e-amd---Appreciation of evidence---Ocular testimony did not inspire confidence---Eye-witnesses had not given any plausible explanation for their presence at the spot at the relevant time---Inaction of eye-witnesses to save the lives of their closely related deceased persons at the time of occurrence had belied their statements--Prosecution case was full of improbabilities and uncertainties, which could not equate with the straightforward and truthful connecting evidence---Complainant and other eye-witnesses had departed from their earlier statements during investigation introducing altogether new details and discrepant facts, which were detrimental to the prosecution version---Having disbelieved the prosecution version, defence plea taken by accused would be believed in toto without scrutiny---Accused had admitted to have committed the occurrence alone under grave and sudden provocation on having seen his real sister and her paramour in naked objectionable condition--Defence version appeared to be more plausible than the prosecution version---Conviction of accused under S.302(b), P.P.C. was consequently altered to one under S.302(c), P.P.C. and he was sentenced to 14 years' R. I. on two counts thereunder in circumstances---Both the deceased being not "Masoom ud Dam", their legal heirs were not entitled to any compensation under S. 544-A, Cr.P.C.---Appeal was disposed of accordingly.

Pathan Khan v. Manzoor Ahmad and another 2004 SCMR 720 and Amanullah and others v. The State 2006 YLR 209 ref.

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

----S. 302(c)--- Qatl-e-amd--- Appreciation of evidence--- Principal accused in the case had admitted to have killed both the deceased alone and had been convicted and sentenced by High Court according to law---Accused had denied his presence at the scene of occurrence pleading false involvement due to conspiracy---General tendency in the society and a matter of common observation was that close relatives, friends and sympathizers of the principal accused were also named in the occurrence by different attributions, so as to cast the net too wide and implicate as many innocent persons as possible in the case to stop them from extending any help to the main accused---Case against accused was of no evidence---Accused was acquitted accordingly.

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

----S. 302(6)---Qatl-e-amd---Appreciation of evidence---Defence plea, appraisal of---Principle---.When prosecution version is rejected and disbelieved, then the defence plea raised by the accused shall be believed in toto without scrutiny---Plea of accused cannot be considered in piecemeal, nor it can be dealt with in a pick and choose manner, to the liking of the prosecution.

Muhammad Amjad Pervaiz for Appellants.

Muhammad Aslam Sandhu, A.P.G. and Malik Allah Yar for the State:

Date of hearing: 14th September, 2010.

2012 P Cr. L J 677

[Lahore]

Before Rauf Ahmad Sheikh, J

ABRAR AHMAD---Petitioner

Versus

DISTRICT POLICE OFFICER, DISTRICT VEHARI and 3 others---Respondents

Writ Petition No. 9477 of 2011, decided on 27th September, 2011.

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

----S. 154---Penal Code (XLV of 1860), Ss.302/148/149---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Registration of second F.I.R.---Scope---F.I.R. had been registered on the statement of the complainant (petitioner) but subsequently his contention that he had been misled by one of the witnesses and murder was actually committed by respondents and not the accused nominated in F.I.R., so second F.I.R. should have been registered, was without force---Complainant could not claim that his second statement be recorded under S.154, Cr.P.0 and fresh F.I.R. be registered---Constitutional petition was dismissed accordingly.

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

----S. 154---Information in cognizable cases---Registration of second F.LR.---Scope---Under S.154, Cr.P.C, S.H.O is under obligation to record the statement of the informant, when information regarding commission of cognizable offence is furnished, but once F.I.R. has been recorded on the statement of the informant, he cannot claim that his second statement be recorded under S. 154, Cr. P. C and fresh F.I.R. be registered---If person other than complainant/first informant furnishes new facts and fresh information, the recording of the second F.I.R. is not barred but the first informant cannot insist on registration of the second F.I.R.

Muhammad Meharban Ranjha for Petitioner.

Muhammad Javed Saeed Pirzada, A.A.-G. for Respondents Nos.1 and 2.

2012 P Cr. L J 683

[Lahore]

Before Ijaz Ahmad Chaudhry, C.J

Mst. INAYAT BIBI---Petitioner

Versus

SUPERINTENDENT BORSTAL JAIL, FAISALABAD and 3 others---Respondents

Writ Petition No.18069 of 2005, decided on 8th September, 2011.

Penal Code (XLV of 1860)---

----Ss. 302/308/331/364--- Constitution of Pakistan, Art. 199---Constitutional petition---Qatl-e-amd, qatl-e-amd not liable to qisas, kidnapping or abducting in order to murder---Payment of Diyat---Accused, who was a minor at the time of incident, was convicted under S.308, P.P.C. by the Trial Court and was sentenced to 10 years' R.I., in addition to payment of Rs. 2, 60, 000 to the legal heirs of the deceased---High Court dismissed appeal and maintained conviction and sentence awarded by the Trial Court but considering that accused was not in a position to pay Diyat amount in lump sum, ordered payment of said amount in instalments within three years, subject to furnishing of security equal to the amount of Diyat---Superintendent of Jail released accused on completion of substantive sentence, but without taking any security for the payment of Diyat amount by accused as was directed by the High Court, in contravention of the judgment---Under provisions of S.331, P.P.C., amount of Diyat could be paid by convict in lump sum or in instalments---If such payment was directed in instalments within a specified period; and convict would fail to pay the same, he could be kept in the jail and dealt with in the same manner, as if he was sentenced to simple imprisonment until the Diyat was paid in full; or convict would provide security equal to amount of Diyat---Even after the death of convict, he could not be absolved of his obligation of payment of Diyat---Superintendent Jail was obligated to get security equal to the Diyat amount from accused prior to his release from jail---Act of Superintendent Jail, was not tenable for the reason that in such situation it would not be possible to recover the requisite amount of Diyat, especially when accused had gone abroad---Superintendent Jail, was directed to take all possible measures, including detaining of accused in civil prison for recovery of Diyat amount and then its payment to the legal heirs of the deceased.

Abid Hussain and another v. Chairman Pakistan Baitul Mall and others PLD 2002 Lah 482 and Government of Punjab v. Abid Hussain and ethers PLD 2007 SC 315 rel

Muhammad Waseem for Petitioner.

Nemo for Respondents

Date of hearing: 4th August, 2011.

2012 P Cr. L J 696

[Lahore]

Before Ch. Muhammad Tariq and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD ARIF---Petitioner

Versus

NAZEER AHMED and others---Respondents

Criminal Revision No.106 and Criminal Miscellaneous Nos.1 and 2-M of 2011, decided on 24th May, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 435, 439 & 561-A---Anti-Terrorism Act (XXVII of 1997), Ss.25, 31 & 32---Penal Code (XLV of 1860), Ss.365-A/337-A(i)/337-F(v)/382/ 420/468/471/148/149---Kidnapping or abduction for extorting property etc., causing hurts, theft after preparation made for causing death etc., cheating, forgery for purpose of cheating, using as genuine a forged document, rioting armed with deadly weapons---Criminal revision---Maintainability---Impugned order had been passed by the Anti-Terrorism Court---Anti-Terrorism Act, 1997, had no provision for challenging the order of Anti-Terrorism Court by way of revision under Ss.435, 439, Cr.P.C. or any application under 5.561-A, Cr.P.C.---Sections '25, 31 and 32 of the Anti-Terrorism Act, 1997, which were to be read in conjunction with each other, did not permit the order passed .by Special Court to be challenged in revision or under the inherent jurisdiction of High Court---Revision petition, therefore, was not maintainable under the law--However, Trial Court had passed the impugned order on the basis of the preliminary statements of the complainant and his witnesses and taking into consideration copies of the medico-legal reports and the cheques etc. brought on record and had rightly summoned the petitioner as an accused in the private complaint---Said order was well-versed from every angle and did not suffer from any legal infirmity---Revision petition was consequently dismissed in limine being not maintainable in law.

Malik Khalid for Petitioner.

2012 PCr. LJ 708

[Lahore]

Before Abdus Sattar Asghar, J

LATEEF AHMED---Appellant

Versus

THE STATE and 3 others---Respondents

Appeal No. 258 of 2011/BWP, decided on 1st February, 2012.

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

----Ss.406 & 420---Criminal Procedure Code (V of 1898), S.417(2-A)---Criminal breach of trust, cheating and dishonestly inducing delivery of property---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Accused had allegedly through dishonest inducement and cheating extorted money from inhabitants of a village (affectees) with a promise to pay a monthly profit against it---Accused were convicted by Trial Court under S.420, P.P.C. but their appeal against the conviction was accepted by the first Appellate Court giving them benefit of doubt---Validity---F.I.R. revealed that as many as fifteen affectees were mentioned in the F.I.R. from whom accused allegedly extorted different amounts, but complainant had not alleged that accused had extorted the amounts in his presence---No date, time and place of the alleged occurrence of extortion of money by the accused from various affectees were given in the F.J.R. nor in the statements of prosecution witnesses---Complainant had mentioned in the F.LR that accused extorted money from his wife but he failed to produce his wife as a witness---Contradictions existed between statements of affectees, their statezizents during cross-examination and contents of F.I.R.---Complainant had admitted that as a result. of arbitration between the parties accused had given part of the alleged amount to him, who passed it onto the affectees---Prosecution had not been able to produce any confidence inspiring or reliable ocular account with regard to payments of alleged amounts to the accused and admittedly arbitration had also been held between the parties---Mere non-payment of profit did not bring a contract between the parties within the provisions of Ss.406 and 420 of P.P.C.-First Appellate Court had rightly granted acquittal to the accused after appreciating material contradictions and discrepancies in the prosecution evidence and giving them benefit ,of the doubt---Appeal against acquittal was dismissed in circumstances.

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

----Ss. 406 & 420---"Criminal breach of trust", "cheating and dishonestly inducing delivery of property "---Scope and difference---Property is voluntarily delivered by the aggrieved person in criminal breach of trust, whereas in the case of cheating aggrieved person is deceitfully induced to part with the property--- In case of criminal breach of trust element of dishonesty occurs after entrustment of the property whereas in the case of cheating, the dishonest intention from the very outset is sine qua non.

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

----Ss. 406 & 420---Scope---Alleged extortion of money through dishonest inducement and cheating, with a promise to pay a monthly profit against it---Non-payment of profit---Mere non-payment of profit does not bring a contract between the parties within the provisions of Ss.406 and 420 of P.P.C.

Rao Rafique Ahmed for Appellant.

2012 P Cr. L J 776

[Lahore]

Before Muhammad Qasim Khan, J

MUHAMMAD NAWAZ---Petitioner

versus

ADDITIONAL SESSIONS JUDGE/JUSTICE OF PEACE, BAHAWALPUR CAMP AT YAZMAN and 3 others---Respondents

Writ Petition No.3429 of 2008/BWP, decided on 24th February, 2011.

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

----Ss. 22-A(6), 22-B & 6---Oaths Act (X of 1873), Ss. 8, 9, 10 & 11---Constitution of Pakistan, Art. 199---Constitutional petition---Power of courts to tender oaths---Duties and powers of Justice of Peace---Scope---Registration of F.I.R.---Petitioner had filed constitutional petition against the order of Justice of Peace on the premise that Justice of Peace had no jurisdiction to decide the application under S.22-A, Cr.P.C. on special oath and even otherwise no such oath was taken by the Justice of Peace---Justice of Peace was not 'a court' within the meaning of S.6, Cr.P.C. and being an ex-officio Justice of Peace he was not only required to exercise the power during office hours but was Justice of Peace for twenty four hours and could exercise powers anywhere at any time within its territorial jurisdiction---Powers conferred upon Justices of Peace were neither judicial nor supervisory, rather they were administrative in nature and such powers had to be used within the framework of S.22-A, Cr.P.C.---Functions and directions issued by Justice of Peace could not be equated with judicial orders/judgments---Proceedings before such ex-officio Justice of Peace could not be equated with proceedings before a court of law---Justice of Peace being not a court had no authority or jurisdiction to offer special oath on the asking of the parties---Justice of Peace had erred in law and entered into a domain which was beyond his jurisdiction and decided the matter after taking oath from the parties---Impugned order of Justice of Peace was set aside being derogative of law and case was remanded to Justice of Peace to decide the matter afresh in the parameters of Ss.22-A and 22-B of Cr.P.C.---Constitutional petition was disposed of accordingly.

PLD 2007 SC 539 and Khizar Hayat v. Inspector-General of Police, Punjab, Lahore PLD 2005 Lah. 470 ref.

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

----Ss. 22-A(6)---Powers of the Justice of Peace---Scope.

Under section 22-A(6) a Sessions Judge is empowered to issue as ex-officio justice of peace appropriate directions to the police authorities on a complaint regarding non-registration of criminal case; transfer of investigation from one police officer to the other; to take notice of neglect, failure or excess committed by police authority in relation to its functions and duties.

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

----S. 22-A---Oaths Act (X of 1873), Ss. 8, 9, 10 & 11---Powers of Justice of Peace---Scope---Power of Court to tender oaths---Scope---Under Ss. 8, 9 & 10 of the Oaths Act 1898, oath must be ordered during judicial proceedings and its administration should be by the court---Sessions Judge or Additional Sessions Judge while acting as Justices of Peace do not function as court, nor the proceedings before ex-officio Justices of Peace are in the nature of judicial proceedings, hence, they have no power to proceed under the mentioned provisions of the Oaths Act, to decide any controversy between the parties and only the courts where judicial proceedings are in progress and have authority to record evidence, are authorized to administer oath in discharge of their legal duties or in the exercise of powers conferred or bestowed upon them---Justice of Peace as defined in Cr.P.C., has no authority or jurisdiction to offer such oath on the asking of parties.

Khizar Hayat v. Inspector-General of Police, Punjab, Lahore PLD 2005 Lah. 470 ref.

Nemo for Petitioner.

Ehsan ul Haq Tanveer for Respondent No.3.

Malik Muhammad Latif, Deputy Prosecutor-General with Muhammad Aslam A.S.-I.

2012 P Cr. L J 789

[Lahore]

Before Abdus Sattar Asghar and Amin-ud-Din Khan, JJ

MUHAMMAD ALI---Appellant

versus

MUHAMMAD SHAHID and another---Respondents

Criminal Appeal No.399 of 2010/BWP, heard on 15th February, 2012.

Penal Code (XLV of 1860)---

----Ss.302 & 316---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-e-amd, Qatl-e-Shibh-e-amd--- Appeal against acquittal---Appreciation of evidence---No independent evidence was available to substantiate the prosecution plea that a day earlier to the occurrence, accused had any quarrel with the deceased; or threatened him that he would not allow him to pass through the 'Kacha path' in question---Prosecution, in circumstances, had failed to establish alleged element of premeditation---Accused was not armed with any lethal weapon at the time of occurrence---If the accused had an intention to kill, he could have used some other blunt or sharp-edge weapon to execute such intention---Qatl-e-Shibh-e-amd, would take place when victim died with an instrument which was neither a weapon nor could be used as weapon---Nature of instrument used in the occurrence, was also an important factor to determine the intention of accused---Small brick-bat was used by the accused instead of some big stone which reflected that intention of accused was to cause harm to the body of the victim, but not his death---No repetition of injury was attributed to the accused---Ocular account, medical evidence and recovery of the offence instrument i.e. brick-bat, failed to substantiate the prosecution plea that the alleged occurrence constituted an offence of qatl-e-amd in terms of S.300, P.P.C.---Material available on the record produced by the prosecution, had led to the conclusion that alleged occurrence constituted an offence of Qatl-e-Shibh-e-amd in terms of S.315, P.P.C.---Prosecution having not been able to prove the charge under S.302, P.P.C., Trial Court had rightly acquitted accused in the said offence and convicted him under S.316, P.P.C.

Rehan Zafar for Appellants.

Date of hearing: 15th February, 2012.

2012 P Cr. L J 804

[Lahore]

Before Muhammad Anwaarul Haq, J

MUHAMMAD NASIR IQBAL---Petitioner

versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 2138-B of 2012, decided on 12th March, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 392 & 411---Robbery, dishonestly receiving property stolen---Bail, refusal of---Allegation against accused was that he along with his co-accused committed robbery on gun-point in the house of the complainant and took away different articles with them---Validity---Accused was not named in the F.I.R., but had been named through supplementary statement of the complainant, wherein she categorically stated that she incidentally saw the accused along with his co-accused at a restaurant, and on knowing the whereabouts of both of them she instantly disclosed such information to the police---Record confirmed that accused was a habitual offender and five other criminal cases of similar nature had been registered against him---Allegedly robbed cash, mobile phone and other articles had been recovered at the instance of the accused---Accused has failed to show any ill-will or enmity of the complainant to falsely involve him in the case---Accused had been charged with S.392, P.P.C., which fell within the prohibitory clause of S.497, Cr.P.C.---Sufficient evidence was available on record to connect the accused with the alleged crime---Bail petition of accused was dismissed, in circumstances.

Muhammad Younas Sheikh for Petitioner.

Ch. Muhammad Akram Tahir, Deputy District Public Prosecutor along with Muhammad Hussain A.S.-I. with Record for the State.

Barrister Muhammad Ahmad Pansota, for the Complainant.

2012 P Cr. L J 830

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi and Sh. Ahmad Farooq, JJ

OKEKE EREC IFEANYI---Appellant

versus

THE STATE and another---Respondents

Criminal Appeal No.99 of 2010, decided on 4th January, 2012.

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

----S. 9(c)---Possession and trafficking of narcotics---Appreciation of evidence---Circumstances in which narcotic was recovered, had shown that 16 kgs. heroin was planted upon accused by complainant for reason best known to him---Chemical Examiner's report did not reflect that all the eight samples were properly sent to the Office of the Chemical Examiner for analysis---Report made by the Chemical Examiner, in circumstances had no legal value---Set format of giving the report by Chemical Examiner, was not available on the file---Whether substance sent to the Chemical Examiner was narcotic substance was doubtful--- Neither the complainant nor the Chemical Examiner had placed on record any material showing as to how the "heroin" was separated from the shampoo, which was in liquid form in the bottles---All said deficiencies/lacunas, had not been properly considered/evaluated by the Trial Court, while convicting accused, which had made case of prosecution highly doubtful---Prosecution having failed to prove the charge against accused beyond any shadow of doubt, accused was acquitted, in circumstances.

Hammad Akbar Wallana for Appellant.

M. Naeem Sheikh, D.P.-G. for the State.

Date of hearing: 15th December, 2011.

2012 P Cr. L J 841

[Lahore]

Before Sagheer Ahmad Qadri, J

SADIQ WAQAS---Petitioner

versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 1210-B of 2011, decided on 22nd November, 2011.

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

----S. 497---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail---Suckling child kept in jail with accused mother---Right of suckling child in Islam---Significance---Suckling child kept in jail is undoubtedly innocent and is kept with mother obviously for his welfare---Concept of "welfare of minor" is incompatible with jail life; so, instead of detaining the innocent child infant in jail for the crime allegedly committed by his mother, it would be in the interest of justice as well as welfare of the minor, if the mother is released from the Jail---Our Holy Prophet Muhammad (P.B.U.H.) in the famous case of Ghamidiyyah had suspended the sentence of pregnant woman, not only till delivery of the child but also postponed it till suckling period of two years, obviously for the welfare of the child---Such golden principle of administration of justice must be strictly observed and followed.

Mst. Nusrat v. The State 1996 SCMR 973 rel.

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

----S. 497---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail, grant of---Accused mother had in her lap a recently born suckling baby girl---Bail was allowed to accused on this ground alone without touching the other merits of the case.

Mst. Nusrat v. The State 1996 SCMR 973 rel.

Mst. Nasreen v. State 1998 MLD 1350 ref.

Asad Mahmood Abbasi for Petitioner.

Basharat Ullah Khan for the Complainant.

Muhammad Usman, Deputy Prosecutor-General and Ghulam Muhammad, S.-I. along with record for the State.

2012 P Cr. L J 848

[Lahore]

Before Mazhar Iqbal Sidhu and Muhammad Qasim Khan, JJ

IQBAL HUSSAIN SHAH and another---Petitioners

versus

THE STATE and 3 others---Respondents

Writ Petition No.5695 of 2010/BWP, decided on 23rd November, 2010.

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

----Ss. 204 & 540---Penal Code (XLV of 1860), Ss.109/302/452/ 148/149---Anti-Terrorism Act (XXVII of 1997), S.7---Constitution of Pakistan, Art. 199---Constitutional petition---Issue of process---Power to summon material witness or examine persons present---Scope---Non-recording of statement of witness during preliminary proceedings of complaint---Quashing of order---Trial Court, after appreciating preliminary evidence, passed its first order under S.204, Cr.P.C. and summoned all the defendant except the accused (petitioners)---Statements of complainant (respondent) and another prosecution witness were recorded after which complainant submitted an application before the Trial Court for summoning of accused in the complaint case to face trial along with the accused who had already been summoned---Said application was accepted and vide second order accused were summoned to face trial---Contentions of accused were that they had not been summoned in the first order, in presence of which second order could not be passed and first order having not been challenged by the complainant, same had attained finality; that other prosecution witness was not examined by complainant at preliminary stage during the proceedings of the complaint and that his statement was recorded much later during trial in the absence of the accused and that second order had been passed with a lapse of about two years after the first order---Validity---Both the accused were nominated by the complainant in the private complaint with the allegation of abetment/conspiracy and complainant got his statement recorded as cursory statement before Trial Court and deposed against all the persons nominated by him in the complaint as accused---Non-recording of statement of the other prosecution witness at the time of preliminary proceedings of the complaint, through which he deposed about the fact of abetment/conspiracy, did not make any difference because in the interest of justice the statement of any person can be recorded whose evidence is essential for the just decision of the case after summoning him under S.540, Cr.P.C.---Statement of complainant, wherein he categorically deposed against the accused was corroborated by the statement of the other prosecution witness---Trial Court had taken cognizance of the case and not of the accused, therefore, the court was not debarred to summon a person to face trial who was prima facie found involved in the commission of the crime alleged---Criminal Procedure Code, 1898 was applicable to the proceedings carried out by the courts constituted under Anti-Terrorism Act, 1997, therefore, Trial Court was competent to summon the accused in the complaint to face trial---Order passed under S.204, Cr.P.C. was not to be equated with judgment under S.265-H, Cr.P.C. and its alteration in review under S.369, Cr.P.C. because such order was not to be treated as judgment or final order---Trial Court was competent to pass the second (impugned) order and it did not amount to reviewing its first order, as fresh material was brought before the Court---Constitutional petition was dismissed in circumstances.

Abdul Hussain Sana v. Suwalal Agarwala and another PLD 1962 SC 242 and Haji Junnat Lal v. The State and another PLD 2001 SC 433 ref.

Muhammad Ashraf v. The State and another 1995 SCMR 894; Sohno v. The State and another 1990 PCr.LJ 1190 and Zahid Anwar Wahla v. Muhammad Amin and another 1993 PCr.LJ 1585 rel.

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

----S. 540---Power to summon material witness---Scope---Non-recording of statement of witness during preliminary proceedings of complaint---Statement of any person can be recorded in the interest of justice, whose evidence is essential for the just decision of the case after summoning him under S.540, Cr.P.C. as ample powers have been given to the Trial Court under the said section.

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

----S. 540---Power to summon material witness---'Summoning' and 'conviction'---Distinction---Summoning of a person to face trial does not mean conviction, it is only a notice to the person so summoned to defend him against the charge alleged against him.

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

----S. 204---Issue of process---Scope---'Issue of process' and 'judgment'--- Distinction--- Order passed under S.204, Cr.P.C. empowers the court to proceed with the trial against whom the complaint has been instituted, therefore, same cannot be treated as judgment or final order, whereas, the word "judgment" denotes the final order passed after complete rehearsal of the trial by a competent court.

(e) Judgment---

----Meaning and scope.

Mumtaz Hussain Bazmi and Rehan Malik for Petitioners.

Malik Muhammad Hanif, Deputy Prosecutor-General on Court's Call.

2012 P Cr. L J 878

[Lahore]

Before Sh. Ahmad Farooq and Muhammad Qasim Khan, JJ

Rana SHAHID MASIH---Petitioner

versus

THE STATE---Respondent

C.M. No.1 of 2011 in Criminal Appeal No.864 of 2009, decided on 4th July, 2011.

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

----S. 426(1-A)(c), proviso (since omitted)---Suspension of sentence---Bail---Word "dangerous" used in the proviso to S. 426(1-A(c)---Meaning---Word "dangerous" used in proviso to S.426(1-A)(c), Cr.P.C. should be construed in its ordinary sense, which means horrible effects of an offence against society at large---Distinction is to be made between "an offence committed against an individual like theft or injury" and "an offence directed against the society as a whole for the purposes of bail"---Effects of smuggling and unlawful selling of narcotics are disastrous on the moral, social fabric of the society and accused of such offences have the potential of destroying the health and family life of a large number of people in addition to bringing a bad name for the country---Heroin, "charas" or other substance covered by Control of Narcotic Substances Act, 1997, were declared dangerous drugs basically on account of their dangerous effects on the society---Meaning of word "dangerous" can be ascertained in the light of the conduct of accused at the time of his arrest, his previous conduct, nature of offence coupled with its effect on society, his betrayal with reference to moral duties---If the word "dangerous criminal" is to be considered as previous convict, then the word "dangerous criminal" used in proviso of S.426(1-A)(c), Cr.P.C. would become completely redundant and meaningless.

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

----S. 426(1-A)(c), 1st proviso---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Suspension of sentence on ground of delay in decision of appeal, refusal of---Accused had been sentenced to imprisonment for life for having 100 kilograms of "charas" in his possession---Offence committed by accused was likely to destroy the fabric of society---Such narcotic peddlers commit these crimes not only consciously but in a well-planned manner irrespective of their hazardous impact on the society--- Accused could be safely considered a "dangerous criminal" within the meaning of first proviso to S.426(1-A)(c), Cr.P.C. and he could not claim benefit of said provision of law---Petition was dismissed accordingly.

Muhammad Asghar v. The State 1992 MLD 1554 and The State through Deputy Director, Anti-Narcotics Force, Karachi v. Mobin Khan 2000 SCMR 299 ref.

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

----S. 426(1-A)(c), 1st proviso---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Suspension of sentence---"Dangerous criminal"---Connotation---Persons dealing in large quantity of heroin can safely be termed as "dangerous".

Muhammad Asghar v. The State 1992 MLD 1554 ref.

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

----S. 497(1), third proviso---Control of Narcotic Substances Act (XXV of 1997), Ss.51(1) & 9(b), (c)---Bail on ground of statutory delay---Third proviso to subsection (1) of S.497, Cr.P.C. cannot be pressed into service in view of subsection (1) of S.51 read with Cls.(b) & (c) of S.9 of the Control of Narcotic Substances Act, 1997, in a case in which the quantity of narcotic drug or psychotropic substance or controlled substance exceeds one Kg and which may entail, inter alia, death sentence.

The State through Deputy Director, Anti-Narcotics Force, Karachi v. Mobin Khan 2000 SCMR 299 ref.

Azam Nazeer Tarrar for Petitioner.

Tariq Mehmood Sipra and A.D. Nasim, Special Prosecutor for Anti-Narcotic Force.

Ikhlaq Ahmad, Deputy Prosecutor-General on Court's call.

2012 P Cr. L J 891

[Lahore]

Before Altaf Ibrahim Qureshi, J

TARIQ AZIZ---Petitioner

versus

Mst. KALSOOM BIBI and others---Respondents

Writ Petition No.11679 of 2011, decided on 5th July, 2011.

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

----Art. 155-(c)---Penal Code (XLV of 1860), Ss.302/148/149---Criminal Procedure Code (V of 1898), S. 169--- Constitution of Pakistan, Art.199---Constitutional petition---Qatl-e-amd---Quashing of order directing prosecution of Police Officers for misconduct---S.H.O. (accused petitioner) and the accused Investigating Officer had arrested the two accused of the murder case in court after rejection of their pre-arrest bail application by Sessions Court---However, the accused Police Officers did not show the said accused as arrested in the Roznamcha and released them from the Police Station---Sessions Court consequently directed the DPO concerned to register a case against the delinquent Police Officers under Art.155(c) of the Police Order, 2002, vide impugned order---Stand taken by the accused Police Officers was that though the pre-arrest bail application of the accused persons in the murder case had been dismissed on merits, but they had declared them innocent and a reference in this regard had been sent to the DSP (Legal)---Held, investigation did not talk of opinion of Police Officer, who was only authorized to collect evidence---Police Officer was not vested with the power to release the accused on his own in a heinous offence, except by following the procedure laid down in S.169, Cr.P.C.---No sanctity was attached to opinion of the Investigating Officer regarding guilt or innocence of accused, as it was not binding on the court---Investigating Officer and the present accused were the nominated accused in a case registered under S.382, P.P.C. and, thus, mala fide investigation of the present case being in league with the present petitioner, under whose direct supervision, the whole show was displayed, was floating on the surface---Such like dishonest attitude on the part of the police was giving bad name to their Institution---After dismissal of bail application, wilful attempt on the part of the petitioner as well as the Investigating Officer in not formally arresting the real accused, was a glaring example of highhandedness showing disrespect to the court, which both the Police Officials had exhibited---Impugned order was based on valid reasons and did not suffer from any illegality warranting any interference by High Court in exercise of its constitutional jurisdiction---Petition was dismissed, in circumstances.

Muhammad Ahmad (Mahmood Ahmed) v. The State 2010 SCMR 660 and Muhammad Arshad and others v. The State and others PLD 2011 SC 350 ref.

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

----Ss. 155, 156, 157 & 174---Investigation---Extent and scope---Job of a Police Officer conducting an investigation is confined only to collection of evidence, which has to be placed by him before the competent court and then it is the authority and obligation of the court to form an opinion about the guilt or innocence of accused and to adjudicate accordingly---Conceding formation of such an opinion to a Police Officer would be a grave illegality, which would lead to grave injustice and serious resulting consequences.

Muhammad Arshad and others v. The State and others PLD 2011 SC 350 ref.

M.M. Alam Chaudhry for Petitioner.

Muhammad Zubair Khalid Chaudhry for Respondent No.1.

Muhammad Arif Yaqoob Khan, A.A.-G. and Saifullah, Sub-Inspector.

2012 P Cr. L J 905

[Lahore]

Before Shahid Hameed Dar and

Mehmood Maqbool Bajwa, JJ

MUHAMMAD YOUSAF FAROOQI---Petitioner

versus

GOVERNMENT OF PUNJAB---Respondent

Writ Petition No.16295 of 2011, decided on 17th August, 2011.

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

----S. 11EE & Fourth Schedule---Constitution of Pakistan, Art. 199---Constitutional petition---Inclusion of petitioner's name for a second time in list prepared under Fourth Sched. of the Act---Legality---Petitioner's name was placed in the list prepared under Fourth Schedule of Anti-Terrorism Act, 1997 on 27-06-2006, and he was required to execute a bond for keeping good behavior for a period of three years---Petitioner filed constitutional petition before the High Court, which on 10-3-2011, directed that name of petitioner be deleted from the Fourth Schedule of Anti-Terrorism Act, 1997---Home Department, Government of Punjab (Authority), deleted name of petitioner from Fourth Schedule of Anti-Terrorism Act, 1997 on 5-5-2011 but on the very same day i.e. 5-5-2011, through an order, included petitioner's name once again in the list of said Schedule---According to the Authority, activities of petitioner were allegedly found detrimental and hazardous to the public peace and tranquillity, maintenance of public order and sectarian harmony for placement of his name in the Fourth Schedule of Anti-Terrorism Act, 1997, but such activities were never disclosed nor brought on record to justify placing of petitioner's name in list of the said Schedule, which lasted for five years and was finally recalled on 5-5-2011---Authority, instead of deleting the name of the petitioner from the Fourth Schedule in the real sense resorted to unlawful exercise of including his name again in the list of the said Schedule, which could not be approved of under any circumstance---No evidence or reason had been offered by the Authority to justify inclusion of petitioner's name in the said list and could not come up with a clear answer and indication as to the availability of the material/reasons, except for an assertion that District Investigation Committee had some secret information/data against the petitioner---Authority had overdone and instead of learning from its mistake committed earlier repeated the same at the cost of the liberty of the petitioner guaranteed under the Constitution---Constitutional petition was allowed, impugned order was set aside and the Authority was directed to remove the name of petitioner from the list prepared under Fourth Schedule of the Anti-Terrorism Act, 1997.

Arif Mehmood Rana for Petitioner.

Ch. Muhammad Shabbir Gujjar, A.A.-G. with Irfan Ali Chheena, S.O., Home Department Punjab, Lahore for Respondent.

2012 P Cr. L J 915

[Lahore]

Before Rauf Ahmad Sheikh, J

MUHAMMAD RAMZAN---Petitioner

versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE, KABIRWALA, DISTRICT KHANEWAL and 3 others---Respondents

Writ Petition No.8032 of 2011, decided on 29th June, 2011.

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

----Art. 199---Criminal Procedure Code (V of 1898), Ss. 190 & 561-A---Penal Code (XLV of 1860), Ss. 324/148/149---Attempt to commit qatl-e-amd, rioting armed with deadly weapons---Constitutional petition---Summoning of respondents to face trial---Petitioner had called in question order passed in revision by Sessions Judge and order passed by the Magistrate whereby both dismissed the petitioner's application to summon respondents to face trial---Local police and RIB after successive investigation had found that respondents were innocent and not connected with the commission of the offence---Effect---Police report was not binding on the courts below and they could have passed the orders for issuance of the process even without recording the evidence if it appeared from the material appended with the report under S.173, Cr.P.C. that respondents were connected with the commission of the offence---Both courts below had found that during period of almost four years, after framing of the charge, the petitioner had not raised any grievance regarding placing of respondents in Column No.2 and did not make prayer for issuance of process against them---Efficacious remedy in the form of private complaint was available to the petitioner and he could have availed of the same---Sessions Judge had rightly observed that opinion of the police was not binding on the courts but the same could not be ignored straightaway if it was based on cogent reasons---Impugned orders passed by the courts below did not suffer from any illegality and infirmity---Petition was dismissed in circumstances.

Falak Sher and another v. The State PLD 1967 SC 425 and Muhammad Yaqub v. The State PLD 1998 Lah. 523 distinguished.

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

----S. 190 & 173---Cognizance of offences by Magistrate---Issue of process---Persons placed in Column No.2 of the report under S.173, Cr.P.C.---Magistrate has the power to take cognizance under S.190(b), Cr.P.C. and issue process against the persons placed in Column No.2 of the report under S.173, Cr.P.C., but it is not obligatory and necessary that in every case the process must be issued and such persons invariably be summoned.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition, scope of---An order passed by Court of competent jurisdiction and upheld by the Revisional Court should not be normally interfered with in exercise of constitutional jurisdiction under Article 199 of the Constitution of Pakistan, 1973.

Muhammad Naseem-ud-Din Qureshi for Petitioner.

2012 P Cr. L J 927

[Lahore]

Before Abdul Waheed Khan, J

Syed TAHIR MEHMOOD SHAH---Petitioner

versus

Syed IFTIKHAR HUSSAIN SHAH and others---Respondents

Writ Petition No.3193 of 2006, decided on 19th October, 2011.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 4 & 8----Criminal Procedure Code (V of 1898), Ss. 203, 204, 265-H & 265-K---Constitution of Pakistan, Art. 199---Constitutional petition---Dismissal of complaint---Failure to provide cursory statements of prosecution witnesses to accused---Sessions Judge had dismissed the petitioner's complaint as same had failed to provide the copies of cursory statements of the prosecution witnesses to the accused persons---Revision petition filed by petitioner was also dismissed---Validity---No law empowered the Court of Session to dismiss a private complaint on account of failure to provide copies of the documents/cursory statements to the accused person under S.256-C(2), Cr.P.C.---Private complaint could be dismissed at preliminary stage under Ss. 203 & 204(3), Cr.P.C.---Accused could also be acquitted and private complaint can be dismissed by the Sessions Court at any stage of the trial under S.265-K and S.265-H(1) of Cr.P.C.---No other provision of law empowered the Court of Session to dismiss the private complaint and to acquit the accused for failure of the complainant to supply copies of the cursory statements of the prosecution witnesses and the documentary evidence---Sessions Judge had erroneously dismissed the complaint---Order passed by Sessions Judge was set aside and case was remanded to Trial Court for decision afresh---Petition was allowed accordingly.

Syed Hamid Ali Bokhari for Petitioner.

Basharat Ullah Khan for Respondent.

Shahid Mehmood Abbasi, A.A.-G. along with Riaz S.-I.

2012 P Cr. L J 966

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

Haji QALANDAR KHAN---Petitioner

Versus

THE STATE and 6 others---Respondents

Criminal Revision No.432 of 2011, decided on 24th November, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 91 & 204---Penal Code (XLV of 1860), Ss. 302/34/109---Power to take bond for appearance and issue of process---Petitioner (complainant) through revision petition had called into question order of Sessions Judge, by virtue of which petitioner's application for taking respondents (accused) into custody was dismissed--- Occurrence took place in the year 2003 and on petitioner's complaint, the respondents were summoned by Trial Court, who in terms of Ss.91/204, Cr.P.C. submitted their bail bonds---Petitioner filed application to take respondents into custody in the year 2010 relying on the dictum of law laid down in the Supreme Court judgment in Luqman Ali v. Hazaro and another (2010 SCMR 611)---Validity---Judgment relied upon by petitioner's counsel was further under challenge before the Supreme Court---Even otherwise respondents were summoned in the year 2004 when the judgment was not in field and it was not mentioned in the judgment whether it would take retrospective effect---If the petition was allowed on the sole ground of the judgment then the whole process of previous years up to 2004, in all cases arising out of 'complaints' would have to be re-assessed and such practice would not only be against the canons of safe administration of criminal justice rather it would further burden the load work in the Trial Courts---Petition being devoid of merit and legal justification was dismissed accordingly.

Luqman Ali v. Hazaro and another 2010 SCMR 611 ref.

Abdul Wahab Khan for Petitioner.

Ch. Muhammad Mustafa, Deputy Prosecutor-General for the State.

Mian Irfan Akram for Respondents Nos. 3, 6 and 7.

Shehzad Saleem Warraich for Respondent No.5.

Arshad Iqbal Tarar for Respondent No.4.

Date of hearing: 24th November, 2011.

2012 P Cr. L J 978

[Lahore]

Before Ijaz Ahmad Chaudhry, C.J.

GHULAM SHABBIR and 11 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.904 of 2010, heard on 16th August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 345--- Penal Code (XLV of 1860), Ss. 302(b), 324, 337-F(i), 337-F(iv), 337-F(vi) & 148---Qatl-e-amd, attempt to commit qatl-e-amd, ghayr-jaifah (damiyah), ghayr-jaifah (mudiah), ghayr-jaifah (munaqqillah), rioting armed with deadly weapons---Compromise---Sentence, reduction in---Deceased's heir and all the injured (except for one) had effected compromise with ten out of the twelve convicts, as a result of which ten convicts were acquitted of the charge on the basis of compromise---Two convicts who had not been pardoned by one of the injured, had already undergone the major portion of their sentences and suffered a lot of anguish due to their protracted trial---Counsel for said two convicts had submitted that they would be satisfied and would not press appeal if their sentences were reduced to a reasonable extent---Sentence of said two convicts under Ss.324 & 337-F(vi), P.P.C. was reduced to five years while sentences under Ss.337-F(i), 337-F(iv) & 148, P.P.C. were maintained with the direction to pay Daman and their sentences were to run concurrently and benefit under S. 382-B, Cr.P.C. was also extended in their favour---Convicts that were on bail, their bail bonds were cancelled, their sureties were discharged and they were released accordingly.

Malik Muhammad Imtiaz Mahl for Appellants.

Abdul Samad, Additional Prosecutor-General for the State.

Date of hearing: 16th August, 2011.

2012 P Cr. L J 996

[Lahore]

Before Rauf Ahmad Sheikh, J

Mst. NASREEN BIBI and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Nos.16390-B and 16392-B of 2011, decided on 20th December, 2011.

Criminal Procedure Code (V of 1898)---

----S. 498 & 497(2)---Penal Code (XLV of 1860), Ss.420/468/471---Telegraph Act (XIII of 1885), S. 25-D---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, causing annoyance---Ad interim pre-arrest bail, confirmation of---Further inquiry---Accused, who were mother and son, had allegedly subjected the complainant (husband) to torture, extended threats to cause his 'qatl-e-amd', made interpolations in the Nikahnama and also caused annoyance to complainant by making phone calls---Genuineness of entries in Nikahnama was to be determined by the Family Court as the same had exclusive jurisdiction in that respect---Complainant's contention that certain columns in Nikahnama were left blank could not be accepted, as same could be agitated before the Family Court---Nikahnama was duly registered and affidavit of Nikah khawan had been submitted to the effect that the complainant and witnesses had put their signatures after completion of the Nikahnama and all entries were made before the signatures---Suit for maintenance and recovery of dower had admittedly been filed by accused against complainant---Accused's contention that they had been roped in the case with malice was not without substance---Reasonable doubts existed as to the veracity of allegations levelled by the complainant and case clearly needed further inquiry within the meaning of S.497(2), Cr.P.C.---Ad interim pre-arrest bail granted to accused was confirmed, in circumstances.

Syed Naveed Abbas for Petitioners and Petitioners in person.

Alawal Khan for the Complainant.

Mian Humayoon Aslam, D.P.-G. and Tahir, S.-I. along with record for the State.

2012 P Cr. L J 1005

[Lahore]

Before Sardar Tariq Masood and Sardar Muhammad Shamim Khan, JJ

THE STATE---Appellant

Versus

MUHAMMAD IQBAL and 4 others---Respondents

Criminal Appeal No.173 and Criminal Revision No.110 of 1994, heard on 22nd March, 2011.

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

----Ss. 302/364/337-A/148/149---Criminal Procedure Code (V of 1898), S.417---Qatl-e-amd, abduction---Appeal against acquittal---Prosecution had failed to plausibly explain the delay of two and a half hours in reporting the matter to police---Eye-witnesses having been disbelieved, defence version put forth under S.342, Cr.P.C. by the accused would have to be accepted in toto---According to defence version deceased armed with a pistol entered into the Dera of accused and fired at the accused, which injured his leg---Deceased then loaded a second cartridge in his .12 bore pistol and accused in order to save himself grappled with the deceased and in an attempt to snatch the pistol the same went off and hit the deceased---Defence version was more probable and was corroborated by other prosecution evidence including medical evidence--- Occurrence had taken place in the Dera of the accused---Prosecution witnesses were not found present at the time of occurrence--- Fire-arm injury sustained by accused had been suppressed by prosecution, which showed that deceased was aggressor--- Impugned judgment was neither perverse, illegal, nor it was based on complete misreading of evidence leading to miscarriage of justice---Conclusions arrived at by Trial Court were based on cogent reasons and there was nothing arbitrary, capricious, fanciful or against the record to warrant interference with the acquittal of accused---Appeal against acquittal was dismissed accordingly.

The State v. Muhammad Raja and 3 others PLD 2004 Pesh. 1; Azhar Ali v. The State PLD 2010 SC 632; Iftikhar Hussain and others v. The State 2004 SCMR 1185; Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 and Haji Paio Khan v. Sher Biaz and others PLD 2009 SC 492 ref.

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

----S. 417---Penal Code (XLV of 1860), Ss.302/364/337-A/148/149---Qatl-e-amd, abduction---Appeal against acquittal---Principles and guidelines.

Iftikhar Hussain and others v. The State 2004 SCMR 1185 quoted.

Sh. Muhammad Rahim for Appellant.

Munir Ahmad Sial, Deputy Prosecutor-General for the State.

Muhammad Nadeem Kanjoo for Respondents.

Date of hearing: 22nd March, 2011.

2012 P Cr. L J 1035

[Lahore]

Before Sagheer Ahmad Qadri and Sayyed Mazahar Ali Akbar Naqvi, JJ

MUHAMMAD AAMIR and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.523 of 2009 and CSR 10-N of 2009, decided on 31st October, 2011.

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

----S. 9(c)---Possession of Narcotic---Appreciation of evidence---Sentence, reduction in---"Charas" weighing 93 Kgs. had been recovered from both the accused---Prosecution evidence was consistent, unbiased and confidence inspiring and had come from an independent source---Accused had not alleged any animosity against prosecution witnesses---Positive report of Chemical Examiner had connected the accused with commission of the offence---Police Officials were as good witnesses as public witnesses, if their statements inspired confidence---Defence version recorded in the statements of accused under S.342, Cr.P.C. was not worth reliance---Conviction of accused was maintained---"Charas" had been recovered from the accused, which was not as lethal as heroin---Accused admittedly were first offenders with no previous criminal record---Death sentence awarded to each accused was reduced to imprisonment for life to meet the ends of justice in circumstances.

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)---Appreciation of evidence---Police witnesses, credibility of---Police Officials are as good witnesses as public witnesses, if their evidence inspires confidence.

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

----S. 9(c)---Death sentence, commutation of---Discretion of court---Court has the discretion to impose punishment keeping in view the facts and circumstances of each case---Role, part, act or omission, character or conduct of accused in some cases may call for lesser sentence than of death---Case of first offender who is not a drug baron can fall in such category---There may be an accused who has no antecedents of any criminal case or who is not an incorrigible, desperate or hardened criminal---Punishment, in such a case, lesser to death can serve the purpose of dispensation of criminal justice---Extreme penalty of death can be avoided to be given to the accused in such cases, to grant him a chance to mend his ways in his future life.

Muhammad Tariq v. The State 2009 SCMR 1220 ref.

Raja Ghaneem Aabir Khan for Appellants.

Waqas A. Rehman, Special Prosecutor for ANF for the State.

Date of hearing: 31st October, 2011.

2012 P Cr. L J 1048

[Lahore]

Before Mehmood Maqbool Bajwa, J

TANVEER ABBAS---Petitioner

Versus

THE STATE and others---Respondents

Criminal Revision No.648 of 2011, decided on 12th January, 2012.

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

----Ss.302/109/148/34---Juvenile Justice System Ordinance (XXII of 2000), Ss.2(b) & 7---Qatl-e-amd, abetment, rioting armed with deadly weapons, common intention---Determination of status of accused as a juvenile--- Contention of accused that at the time of the occurrence he was a "child" within the meaning of the Juvenile Justice System Ordinance, 2000, and that the Trial Court, while determining the status of the accused as a child, ignored the entry in his birth certificate and concluded that his outlook/physique suggested that he was major--- Validity---Trial Court had disposed of the matter in a cursory manner which was against the intention of legislature reflected in S.7 of the Juvenile Justice System Ordinance, 2000---Claim of minority raised by the accused had to be dealt with in accordance with the mandate of S.7 of said Ordinance---Failure of Trial Court to adopt the proper procedure to reach a just conclusion was an illegality which could not be endorsed---Order of Trial Court, to the extent of the accused, was set aside and court was directed to decide the status of accused as a "child" while proceeding under S.7 of the Juvenile Justice System Ordinance, 2000 and keeping in view the guidelines provided by Supreme Court in case reported as Muhammad Aslam and others v. The State and another (PLD 2009 SC 777)---Revision petition was accepted, accordingly.

Muhammad Aslam and others v. The State and another PLD 2009 SC 777 rel.

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

----Ss. 302/109/148/34---Juvenile Justice System Ordinance (XXII of 2000), Ss. 2(b) & 7---Determination of age of accused vis-a-vis his claim of minority---Procedure to be followed for the purpose summarized.

Principles regulating the determination of age of accused person vis-a-vis his claim of minority and the procedure to be followed for the purpose are as under:--

(a) The normal penalty for an offence punishable with death, is death, and in view of the provisions of S.367(5), Cr.P.C., special reasons must exist to impose, on the convict, a punishment other than a sentence of death;

(b) the plea of minority by an accused is a special plea intended to take the accused off the noose and onus is thus on him to prove the same;

(c) such a plea of minority must be taken by the accused at the earliest possible opportunity, preferably during the course of investigation so that the requisite evidence about the age of the accused could also be properly collected during the said exercise of collection of evidence and any delayed claim on the said account should be met by adverse inferences;

(d) whenever such a question of age is raised or arises at the trial, the Court should not deal with the same in a cursory or in a slip-shod manner but must proceed to hold an inquiry in the matter as commanded by the provisions of section 7 of the Juvenile Justice System Ordinance, 2000 including medical examination of the accused for the purpose;

(e) the said inquiry should not be understood to mean only to entertain documents from across the bar and then giving a decision thereon. Such a practice need not only to be discouraged but, in fact, to be discontinued. Basing judicial decisions on untested and un-scrutinized documents was a dangerous path to tread;

(f) proper compliance of the said provisions of section 7 would be to call upon the parties to lead their evidence -- oral or documentary in accordance with the provisions of Qanun-e-Shahadat, 1984 with a right to the other party to test the veracity or the genuineness of the same in accordance with law and then to arrive at a judicial decision in terms thereof;

(g) a medical examination of the accused person could furnish a useful guideline in the matter and should be resorted to; and finally, (h) Court must always keep in mind that while it is important, being a legal command, that a "child" should not be sent to the gallows, it is equally important that the one who deserves death must not be allowed to escape the same on the strength of false and fabricated material. [p. 1051] B

Muhammad Aslam and others v. The State and another PLD 2009 SC 777 quoted.

Ch. Ahmad Khan Gondal for Petitioner.

Mian Muhammad Awais Mazhar, Deputy Prosecutor-General for the State.

Complainant in person.

2012 P Cr. L J 1056

[Lahore]

Before Abdus Sattar Asghar, J

MUHAMMAD RAMZAN alias KAIFI and 2 others---Appellants

versus

THE STATE and another---Respondents

Criminal Appeal No.194 of 2008/BWP, decided on 25th January, 2012.

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

----Ss. 302(b), 436 & 381-A---Qatl-e-amd, mischief by fire with intent to destroy house, theft of motor vehicle---Appreciation of evidence---Benefit of doubt---No independent witness from the neighbourhood of the place of occurrence had been produced by prosecution---Was not believable that three unknown accused after setting the house on fire would remain available in its courtyard for hours awaiting the arrival of the prosecution witnesses---Evidence about leaving of the complainant for police station for registration of F.I.R. and arrival of the police at the place of occurrence had material inconsistencies---Eye-witnesses were not found being present at the time and place of occurrence and to have seen the same---Identification of accused by the prosecution witnesses in the identification parade, therefore, was immaterial and uncalled for---Occurrence was unseen and was shrouded in mystery---Knowledge of accused about the presence of cash and gold ornaments in the house of the deceased, was not proved on record through any ocular account---No motive or any previous animosity on the part of accused had been established by the prosecution to cause murder of both the deceased by setting their room on fire---Alleged joint extra-judicial confession of accused before the relatives of the complainant was an afterthought, totally, unbelievable and inadmissible in evidence---Recovery of motorcycle at the instance of accused deposed by the relatives of the complainant and the deceased and not attested by any independent witness of the locality, could not be relied upon---Even the registration book of the motorcycle did not show the deceased its owner---Recoveries of pistols from the accused were also inconsequential, as the same were not used in the occurrence---Mere contention that complainant had no previous animosity against the accused to falsely implicate them who were also not residents of his locality, was not sufficient to discharge the burden of proof---Heavy burden to prove the case against accused beyond any shadow of doubt would always remain on the prosecution and it had failed to do so in the present case---Accused were acquitted on benefit of doubt in circumstances.

Adrees v. The State 2002 SCMR 1439; The State v. Kamal Khan alias Maloo and another 1993 SCMR 1378 and Mst. Jahura Bibi v. Emperor AIR 1931 Cal. 11 ref.

(b) Evidence---

----Circumstantial evidence, proof of---Scope.

In case of circumstantial evidence it is incumbent upon the prosecution to prove the alleged circumstances as of conclusive nature to exclude every hypothesis but one proposed to be proved. The circumstances from which an inference adverse to the accused is sought to be drawn must be proved beyond all reasonable doubts and must be clearly connected with the fact sought to be inferred therefrom. In order to justify an inference of guilt, the circumstances from which such an inference is sought to be drawn must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. [p. 1067] I

Mst. Jahura Bibi v. Emperor AIR 1931 Cal. 11 rel.

Ms. Gulraiz Abbasi for Appellants Nos. 1 and 2.

Raja Muhammad Sohail Iftikhar for Appellant No.3.

Muhammad Ali Shahab, Deputy Prosecutor-General for the State.

Mian Muhammad Afzal Wattoo for the Complainant.

2012 P Cr. L J 1082

[Lahore]

Before Muhammad Qasim Khan, J

AMEER MAI---Petitioner

Versus

JUSTICE OF THE PEACE, YAZMAN, and 3 others---Respondents

Writ Petition No.934 of 2011/BWP, decided on 22nd February, 2011.

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

----Ss. 22-A, 107 & 151---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Powers of Justice of Peace---Scope---Application for registration of F.I.R.---Security for keeping the peace---Arrest to prevent cognizable offences---Applicant (petitioner) had assailed the order passed by Justice of Peace whereby on an application filed under S.22-A, Cr.P.C., applicant sought registration of case but concerned S.H.O. was directed to obtain bonds from both the parties and to take precautionary measures under Ss.107 & 151, Cr.P.C.---Applicant's application under S.22-A, Cr.P.C. showed that applicant along with others were severely beaten but there was no medical certificates available on file in support of their contention, which fact might have established the commission of the alleged offence---Said application also showed that there was a dispute between the parties about a sugar cane crushing machine installed by the respondents in front of the house of the applicant, which became a source of nuisance for the applicant but report by S.H.O. showed that no such occurrence had taken place---Disputed factual controversy between the parties required determination through detailed inquiry/ recording of evidence, which exercise could not be undertaken while discharging jurisdiction under Article 199 of the Constitution of Pakistan and thus direction for registration of case could not be issued---Constitutional petition was disposed of accordingly.

Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 SC 691; Muhammad Ali v. District Police Officer and others 2008 PCr.LJ 467; Muhammad Younus Khan and 12 others v. Government of N.-W.F.P. through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618; Muhammad Saleem Bhatti v. Syed Safdar Ali Rizvi and 2 others 2006 SCMR 1957 ref.

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

----Ss. 22-A, 107 & 151---Constitution of Pakistan, Art.199---Constitutional petition--- Powers of Justice of Peace--- Scope---Application for registration of F.I.R---Security for keeping peace---Arrest to prevent cognizable offences---Applicant (petitioner) had assailed the order passed by Justice of Peace whereby on an application filed under S.22-A, Cr.P.C., applicant sought registration of case, but concerned S.H.O was directed to obtain bonds from both the parties and to take precautionary measures under Ss.107 & 151, Cr.P.C.---Impugned order to the extent of directing the S.H.O (respondent) to obtain bonds and to adopt preventive measures under Ss.107 & 151, Cr.P.C. against the parties, in the facts and circumstances of the case, was an order which on the face of it had been issued in haste as Justice of Peace himself had found that there was no severe motive between the parties and mere fact that some occasional enmity existed between the parties was not at all a ground to warrant such an action as contemplated under S.107, Cr.P.C.---Justice of Peace could call upon officers within his local area to aid him in the prevention of breach of peace or a disturbance of the public tranquillity, therefore, Justice of Peace ought to have opted for an inquiry or at least must have satisfied his conscience that circumstances in between the parties were such which could result in serious repercussions like breach of peace and disturbance of public tranquillity---Justice of Peace on the basis of an allegation levelled by the complainant in an application under S.22-A, Cr.P.C., without considering the requirements as mandated under Ss.107 and 151, Cr.P.C. directed the S.H.O. to proceed against the parties, therefore, impugned order to the extent of direction to S.H.O. for obtaining surety bond from both the parties and taking preventive measures under Ss.107 and 151, Cr.P.C., was set aside---Constitutional petition was disposed of accordingly.

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

----S.107---Security for keeping peace---Scope---Bare possibility of breach of peace is not enough to justify proceedings under S.107, Cr.P.C.

1980 PCr.LJ 126 ref.

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

----S. 151---Arrest to prevent cognizable offences---Scope---Under S.151, Cr.P.C. a police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented, however, but arrest made by police officer without any emergency as contemplated by S.151, Cr.P.C. is patently illegal.

1993 PCr.LJ 102 ref.

Sardar Afzaal Ahmad for Petitioner.

Muhammad Naveed Khalil, Assistant Advocate-General for Respondents.

2012 P Cr. L J 1097

[Lahore]

Before Abdus Sattar Asghar, J

MUHAMMAD IKRAM---Petitioner

versus

THE STATE and another---Respondents

Criminal Revision No.5 of 2012/BWP, decided on 8th March, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 190(3) & 173---Penal Code (XLV of 1860), Ss. 302/148/149---Qatl-e-amd, rioting armed with deadly weapons, unlawful assembly---Magistrate sending the case to Court of Session for trial---Scope---Accused (petitioner) had challenged the order of the Court of Session by which accused was summoned to face trial as an accused in the F.I.R. and Station House Officer (SHO) was directed to submit a fresh report under S.173, Cr.P.C.---Contention of accused that he had been declared as innocent in the police investigation and his name was neither mentioned in Column No.2 nor in Column No.3 of the report under S.173, Cr.P.C. submitted to Magistrate, and that the Magistrate illegally summoned the accused and sent the challan to the Sessions Court for trial---Validity---Although under S.190(3), Cr.P.C., Magistrate was not supposed to enter into an inquiry, however, he was not expected to act as a post officer to transmit the case for trial to the Court of Session merely because a section relating to an offence exclusively triable by a Court of Session had been mentioned in the report under S.173, Cr.P.C. or the complaint under S.200, Cr.P.C., rather he was expected to apply his mind to the material placed before him by the police or the complainant, in order to determine whether the allegations made out a prima facie case triable exclusively by the Court of Session---Court of Session (Trial Court) takes cognizance of an offence and not an offender and on taking cognizance of the offence, it acquired jurisdiction over all persons involved and not only over persons against whom challan was submitted---Impugned order categorically mentioned that accused was specifically mentioned in the F.I.R. with a particular role attributed to him, supported by witness statements, which was sufficient reason for summoning the accused---Fact that the police had not mentioned name of accused in Column No.2 or Column No.3 of the report under S.173, Cr.P.C. was immaterial and of no legal effect, in circumstances---Impugned orders of Court of Session were neither perverse nor legally infirm, therefore, revision petition of accused was dismissed.

Mehr Khan v. Yaqub Khan and another 1981 SCMR 267; Raja Khushbakhtur Rehman and another v. The State 1985 SCMR 1314 and Muhammad Yaqub v. The State PLD 1998 Lah. 523 rel.

2012 P Cr. L J 1117

[Lahore]

Before Shahid Hameed Dar, J

NISAR AHMED alias KALI alias IMRAN alias NISARA---Petitioner

versus

THE STATE and another---Respondents

Criminal Miscellaneous No.167-B of 2012, decided on 9th February, 2012.

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

----S. 497(2)--- Penal Code (XLV of 1860), Ss. 395/412/392/ 109/337-A(ii)---Dacoity, dishonestly receiving property stolen in the commission of dacoity, robbery, abetment, shajjah-i-mudihah---Bail, grant of---Further inquiry---Complainant while reporting the crime to the police gave a brief description of the external features and complexion of the unknown accused which warranted holding of a test identification parade to establish identity of the accused---Investigation officer instead of conducting an identification parade, resorted to a short-cut by fabricating supplementary statement of the complainant---Contents of supplementary statement of complainant revealed that accused persons hailed from different parts of two provinces, but it was not known as to how the complainant learnt the names of the accused, their parentage and places of residence---Fact that complainant was guided by the police to implicate the accused in the case could not be ruled out--- Recovery of two gold bangles, allegedly at the instance of the accused, might have also been managed by the police to create incriminating evidence against the accused---Contention of prosecution that accused had been involved in fourteen previous cases of similar nature, could not be deemed a circumstance to deny bail to accused as he had not been convicted in any of the previous cases---Sufficient reasons existed to believe that case of accused needed further inquiry into his guilt as envisaged under S.497(2), Cr.P.C.---Bail application of accused was accepted and he was admitted to bail.

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

----Art. 22--- Penal Code (XLV of 1860), Ss. 395/412/392/109/ 337-A(ii)---Identification parade---Practice of police to cut short investigation by producing supplementary statement instead of holding identification parade was deprecated by High Court.

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

----Art. 22--- Penal Code (XLV of 1860), Ss. 395/412/392/109/ 337-A(ii)--- Identification parade--- Production of supplementary statement instead of holding identification parade---Validity---Cutting short process of investigation by way of supplementary statement does not serve any lawful purpose nor it creates any admissible evidence, and such a statement cannot be equated with lawful evidence of test identification parade.

Muhammad Aslam Khan Dhukkur for Petitioner.

Khalid Pervaiz Uppal, D.P.-G. with Khan Muhammad S.-I. for the State.

2012 P Cr. L J 1124

[Lahore]

Before Mazhar Iqbal Sidhu and Sayed Muhammad Kazim Raza Shamsi, JJ

Maj. (Retd.) ANJUM SHAFIQUE---Petitioner

versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1241-B of 2012, decided on 6th February, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---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---Dispute between farmers and proprietors of a mill---Accused (General Manager of the mill) tried to calm down the situation between the farmers and proprietors of the mill---Contents of F.I.R. revealed that accused had allegedly yelled a lalkara but he was not shown as armed and had not caused any injury to the deceased or to the injured---Police investigation had resolved in non-presence of the accused at the spot and he was declared innocent and his name had been placed in column No.2 of the report prepared under S.173, Cr.P.C.---Although police opinion was not binding on the court but same being adverse to the prosecution's case, could be considered during disposal of bail application---Prosecution's own case as well as police investigation, accumulatively constituted a case of further inquiry as envisaged under S.497(2), Cr.P.C.---Bail petition of accused was allowed and he was admitted to bail.

Dr. Khalid Ranjha for Petitioner.

Muhammad Akhlaq, D.P.-G. with Muhammad Akram, S.-I. with record for the State.

2012 P Cr. L J 1136

[Lahore]

Before Syed Iftikhar Hussain Shah, J

ALI KULI AMIN-UD-DIN---Petitioner

versus

MUHAMMAD ZAFAR and others---Respondents

Criminal Revision No.1105 of 2010, decided on 12th October, 2011.

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

----S. 369--- Penal Code (XLV of 1860), Ss.506/448/148/149/511---Telegraph Act (XIII of 1885), S.29---Criminal intimidation, house trespass, rioting, unlawful assembly, attempt to commit offences---Court not to alter judgment---Accused respondents had filed an application for pre-arrest bail for offences under Ss.506/448/148/ 149/511, P.P.C. and obtained ad-interim pre-arrest bail---During the proceedings it transpired that accused had not mentioned the offence under S.29 of the Telegraph Act, 1885, in their application, but the same had been added in the judicial record in different hand and ink---Sessions Court, therefore, immediately directed the registration of a case vide order dated 16-1-2009---Six months thereafter Sessions Court on the petition of one of the respondents had withdrawn the said order dated 16-1-2009, vide the impugned order dated 1-6-2009---Validity---Held, that under S.369, Cr.P.C. no court after having signed the judgment could alter or review the same, except to correct a clerical error---Even High Court had been precluded under S.369, Cr.P.C., to review its order---Sanctity was attached to judicial record and tampering therein was a heinous offence---Concept of recalling of judicial order was alien to the Criminal Procedure Code, 1898---Sessions Court was not competent to withdraw its earlier order dated 16-1-2009---Impugned order of withdrawal was set aside and the revision petition was accepted accordingly.

2001 PCr.LJ 222; 1997 PCr.LJ 74 and 1971 SCMR 618 ref.

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

----S. 369---Court not to alter judgment---Scope---Court becomes functus officio after it passes and signs any order--- No court including High Court can review its order passed in criminal jurisdiction. [p. 1138] B

2001 PCr.LJ 222; 1997 PCr.LJ 74 and 1971 SCMR 618 ref.

Asghar Ali Gill for Petitioner.

Afzal A. Haider for Respondent No.1.

2012 P Cr. L J 1148

[Lahore]

Before Ijaz Ahmad Chaudhry, C.J.

GHULAM GILLANI---Petitioner

versus

THE STATE and 2 others---Respondents

Writ Petition No.18541 of 2011, decided on 15th September, 2011.

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

----S. 382-B---West Pakistan Arms Ordinance (XX of 1965), S.13---Constitution of Pakistan, Art. 199---Constitutional petition---Benefit of S.382-B, Cr.P.C. grant of---Mandatory---Reduction of period of sentence of imprisonment---Accused had earlier been convicted (earlier conviction) in a criminal case and sentenced to imprisonment for life with further direction to pay compensation and daman---Subsequently accused was convicted (latter conviction) and sentenced by Trial Court in respect of another offence under S.13 of West Pakistan Arms Ordinance, 1965---Contention of accused was that jail authorities had not started to count his sentence passed in the latter conviction; that neither any direction was passed for running of his sentences concurrently nor he was granted benefit of S.382-B, Cr.P.C. in respect of calculation of his sentence recorded in the latter conviction---Validity---Grant of benefit of S. 382-B, Cr.P.C. was mandatory and in normal circumstances could not be refused---Sentence awarded by Trial Court for the latter conviction was short and keeping in view the facts and circumstances of the case, no extraordinary reason existed to decline relief sought by accused---Constitutional petition was accepted and benefit of S.382-B, Cr.P.C. was extended to the accused for calculation of his sentence for the latter conviction.

Ehsan Elahi v. Muhammad Arif and others 2001 SCMR 416 fol.

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

----S. 382-B---Reduction of period of sentence of imprisonment---Guiding principles for the application of S.382-B, Cr.P.C., provided.

Ehsan Elahi v. Muhammad Arif and others 2001 SCMR 416 quoted.

Naseem Ullah Khan Niazi for Petitioner.

2012 P Cr. L J 1157

[Lahore]

Before Ali Baqar Najafi, J

ABDUL HAMEED---Petitioner

Versus

THE STATE and another---Respondents

Bail Petition No.5552/B of 2012, decided on 7th May, 2012.

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---Complainant had advanced an amount to the accused against which the latter issued a cheque in favour of the complainant, which cheque was dishonoured on presentation---Contentions of the accused were that he was a photo account holder and the cheque in question was dishonoured due to reasons of personal withdrawal and not because of insufficient funds; that the accused was no more required for investigation, and that the alleged offence did not fall within the prohibitory clause of S.497, Cr.P.C.---Accused was an illiterate person and had opened a photo account---Dishonouring slip of the cheque in question showed that the cheque was returned on account of non-appearance of the accused (personal withdrawal)---Accused was no more required for the purpose of investigation---Question as to whether the dishonouring of a cheque due to personal withdrawal attracted S.489-F of P.P.C., called for further inquiry into the case---Liability of the accused could be determined at the time of the trial after recording of evidence---Further incarceration of the accused would not serve any useful purpose of the prosecution---Bail petition of the accused was accepted and he was admitted to bail.

Tahir Mehmood Ch. for Petitioner.

Rana Tassawar Ali Khan, Deputy Prosecutor-General along with Habib ur Rehman, S.-I. with record for the State.

2012 P Cr. L J 1172

[Lahore]

Before Rauf Ahmad Sheikh and Shahid Hameed Dar, JJ

MANZOOR AHMED---Petitioner

Versus

THE STATE---Respondent

Criminal Appeal No.1190 of 2009, decided on 16th May, 2012.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss. 302/109/34---Qatl-e-amd, abetment, common intention---Suspension of sentence---Delay in disposal of appeal---Contentions of the accused were that his appeal had not reached its logical end despite a lapse of more than two years; that the accused had not made any contribution towards such delay in disposal of his appeal, and that the accused was a previous non-convict and had no history of involvement in cases similar to the present case, therefore, he could not be deemed to be a desperate or hardened criminal---Validity---Appeal filed by the accused had not been decided despite a lapse of more than two years and the accused was not responsible for such delay---Accused was neither a desperate nor a hardened criminal---No material was available to withhold the concession of bail available to the accused on statutory grounds under S.426, Cr.P.C.---Petition of accused for suspension of sentence was accepted and he was released on bail.

Barrister Danyal Ijaz for Petitioner.

Shahid Bashir, D.P.-G. for the State.

2012 P Cr. L J 1189

[Lahore]

Before Rauf Ahmad Sheikh and Mazhar Iqbal Sidhu, JJ

FAISAL MEHMOOD and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeals Nos.41, 66 and Murder Reference No.59/RWP of 2008, decided on 14th March, 2012.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Qatl-e-amd, common intention---Appreciation of evidence---Sentence, quantum of---Benefit of doubt---Complainant/ widow of deceased had stated that her husband went to stop the Wagon for her children to go to School and she followed him along with her children---Time of occurrence given in the F.I.R. was the same which usually people send their children for schooling---Presence of widow of deceased at the place of occurrence, in circumstances was very natural---Other prosecution witness was also resident of the same street---Minor difference between his statement under S.161, Cr.P.C. and in the witness box was absolutely neglectable---Presence of said two witnesses was natural and there was no reason for them to depose falsely against the accused---Injuries attributed to all accused persons were fully supported by the prosecution witnesses, and were established---Defence version, was not plausible---F.I.R. was promptly lodged---Witnesses of recovery of weapons of offence, though were cousins of the deceased, but they had no enmity with accused---Empties and Pistols were sent to Forensic Science Laboratory with delay; and for that reason the report of the Laboratory was not believed by the Trial Court---Report of the Laboratory was merely a corroborative piece of evidence and even if it was discarded, the strong ocular account, coupled with medical evidence was sufficient to prove the guilt of accused persons---Trial Court had rightly extended the benefit of doubt to acquitted co-accused as they had not caused any injury to anyone---Injuries attributed to both accused persons, were proved through trustworthy ocular account duly corroborated by medical evidence---Both said accused were rightly awarded the capital punishment---Third accused stood on different footings as he had caused injury on the upper left arm of the deceased---Said injury was not fatal and ultimately did not lead to demise of the deceased---Sentence awarded to said third accused, appeared to be on higher side---Imprisonment for life would serve ends of justice, in his case---Death sentence awarded to said two accused persons was confirmed, whereas sentence of death awarded to said third accused was commuted to imprisonment for life; he would also be entitled to benefit under S.382-B, Cr.P.C.

Muhammad Aslam alias Aslam v. The Crown PLD 1953 FC 115; Sahab Khan and 4 others v. The State and others 1997 SCMR 871; Akhtar Ali and others v. State 2008 SCMR 6 and Rohtas Khan v. The State 2010 SCMR 566 distinguished.

Faisal Mehmood and others v. The State and another 2010 SCMR 1025; Muhammad Nisar v. The State 2006 SCMR 161; Gul Khan v. The State 1999 SCMR 304 and Shahidullah Khan and others v. The State PLD 1961 Dacca 1 ref.

Sardar Muhammad Ishaq Khan for Appellants.

Rana Kashif Saleem Arfaa, Law Officer for the State.

Ch. Muhammad Yaqoob for the Complainant.

Dates of hearing: 13th and 14th March, 2012.

2012 P Cr. L J 1216

[Lahore]

Before Ali Baqir Najafi, J

MUHAMMAD BOOTA---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No. 4485-B of 2012, decided on 23rd April, 2012.

Criminal Procedure Code (V of 1898)---

----S. 498---Punjab Universities and Boards of Intermediate and Secondary Education Malpractices Act (XXXII of 1950), S.4 (as amended)---Pre-arrest bail, confirmation of---Malpractice during examination---Allegation against accused (student) was that another person was found sitting for him in the annual examination---Contentions of accused were that he was not apprehended from the spot; that he had already been charged as "Unfair Means Case (UMC)"; that future career of accused had to be taken into account; that co-accused had already been granted bail, and that no incriminating material was available against the accused to connect him with the alleged offence--- Validity--- Although S.4 of Punjab Universities and Boards of Intermediate and Secondary Education Malpractices Act, 1950 (as amended), was non-bailable but said section did not fall within the prohibitory clause of S.497, Cr.P.C.---Police and authorities instead of controlling such malpractices through procedural efficiency, had registered a criminal case to show the public at large that they were working hard to check cases of malpractice; had the staff been efficient, there should not have been any instance of the commission of such an offence---Co-accused had already been granted bail---Bail petition of accused was accepted keeping in view his career at his present age, and pre-arrest bail already granted to him was confirmed.

Rana Zia Ullah Khan for Petitioner.

Ch. Muhammad Mustafa, Deputy Prosecutor-General along with Saif Ullah, A.S.-I. with record for the State.

2012 P Cr. L J 1232

[Lahore]

Before Ali Baqar Najafi, J

ZIA ULLAH---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.4587-B of 2012, decided on 23rd April, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Punjab Prohibition of Private Money Lending Act (VI of 2007), Ss.2(c), 3 & 4---Prohibition of private money lending---Bail, grant of---Further inquiry---Word "interest"---Scope---Allegation against accused (lender) was that he was running a money lending business for interest against cheques---Complainant (lendee) took money from the accused and voluntarily provided a cheque as guarantee and also transferred a plot in the name of the wife of the accused---Accused allegedly started blackmailing the complainant and filed a case against him under S.489-F, P.P.C. for the cheque provided by the complainant---Contentions of the accused were that there was a delay in lodging the F.I.R.; that complainant wanted to escape his liability which he had undertaken in the form of the cheque provided to the accused; that no incriminating material was recovered from the accused during investigation, and that challan had been submitted against the accused, therefore, his further detention would not serve any useful purpose to the prosecution---Validity---Sections 3 and 4 of the Punjab Prohibition of Private Money Lending Act, 2007, prohibited the recovery of interest as defined therein, however, S.2(c) of the said Act did not prohibit other possible safeguards, which an accused might resort to in the form of excessive money---Transactions between parties were voluntary in nature which held both of them equally responsible--- Case of accused was one of further inquiry and his further incarceration in jail would not serve any useful purpose of the prosecution---Gravity of offence could be determined at the trial and bail could not be refused to the accused as a punishment---Bail petition of accused was allowed and he was admitted to bail.

Ms. Bushra Qamar for Petitioner.

Ch. Muhammad Mustafa, Deputy Prosecutor-General for the State assisted by Abdul Khaliq Safrani for the Complainant.

2012 P Cr. L J 1238

[Lahore]

Before Kh. Imtiaz Ahmad and Rauf Ahmad Sheikh, JJ

ABDUL RASHID and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.37-T of 2008 and C.S.R. No.5/RWP of 2008, decided on 16th February, 2012.

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

----Ss. 302/324/186/353/148/149---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-e-amd, attempt to commit qatl-e-amd, obstructing public servant in discharging of public functions, assault or criminal force to deter public servant from discharging of his duty, rioting, common object and act of terrorism---Appreciation of evidence---Prosecution case mainly hinged upon the evidence of Police Officers who were the members of the raiding party; they all were unanimous and had corroborated each other's statements; they had no previous animosity or enmity with accused and they also corroborated each other on the accused being apprehended at the spot while holding .12 bore gun, which had one stuck up cartridge---Omission to mention the deposit of empties in the Roznamcha could be an irregularity, but would not affect the veracity of those witnesses---All said prosecution witnesses had narrated the events in natural and straightforward manner, except for minor differences, which were result of the passage of time---No material contradiction or discrepancy existed in their statements; their confidence-inspiring and trustworthy evidence had proved that accused made fires with .12 bore gun, which landed on the chest of the deceased and accused was apprehended at the spot along with the gun, which also contained a stuck up cartridge---Five co-accused who faced the trial along with accused were acquitted by the Trial Court, but none of them was armed with gun .12 bore and three of them were not arrested at the spot---Evidence available on record proved the guilt of accused, which was not sufficient to convict co-accused since acquitted---Trustworthy evidence had established that accused had caused qatl-e-amd of Police Officer when he was performing his official duties in order to arrest person involved in offence punishable under S.365-A, P.P.C.---Accused was rightly convicted and sentenced in offence punishable under S.7(a) of Anti-Terrorism Act, 1997---Charge was rightly framed under said provision of the Act which was a special law---No separate charge under S.302, P.P.C. was required to be framed in view of exhaustive provisions of the Act---Impugned judgment did not suffer from any infirmity---Contention that accused was 70 years old and a heart patient, so he could not have committed offence, was without force, because triggering of the gun did not require much force and same did not constitute a valid mitigating ground---Appeal was dismissed, in circumstances.

Akhtar Ali and others v. State PLJ 2008 SC 269; Farman Ali and 3 others v. The State PLD 1980 SC 201; Faryal and another v. The State 1978 PCr.LJ 380; Muhammad Sharif v. The State 1985 SCMR 1684; Shamir alias Shamla v. The State PLD 1958 SC 242 and Muhammad Hussain and 3 others v. State 1999 MLD 798 distinguished.

(b) Criminal trial---

----Conviction should be recorded and sentence awarded to accused against whom the case was proved beyond reasonable doubt---Sifting of grain from chaff, was one of the duties of the court while deciding such cases.

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

----S. 100---Right of self-defence---Scope---If someone from the Law Enforcing Agency asked the person required in any case to come out of the house, then the right of self-defence, did not accrue to the inmates of the house, and they could not cause qatl-e-amd of such person---Neither the right of privacy or protection of the same was infringed, nor the right of self-defence was available, in circumstances.

Sardar Muhammad Ishaq Khan for Appellants.

Rana Kashif Saleem Arfaa, Law Officer for the State.

Dates of hearing: 15th and 16th February, 2012.

2012 P Cr. L J 1249

[Lahore]

Before Muhammad Anwaarul Haq and Syed Iftikhar Hussain Shah, JJ

Hafiz ABDUL REHMAN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1858 of 2006 and Murder Reference No.753 of 2006, heard on 15th November, 2011.

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

----S. 302(b)/34---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Benefit of doubt---Inter se relationship of the witnesses with the deceased was not enough to discard their testimony---Occurrence had taken place in the shop close to the Haveli of the complainant and the deceased---Presence of eye-witnesses at the scene of incident was natural, who had plausibly explained their attraction there---Prosecution could neither be blamed nor any adverse inference could be drawn against it for non-association of independent witnesses during investigation due to growing tendency of public for their non-cooperation---Ocular testimony qua the role of both the accused in the occurrence was fully supported by medical evidence---Registration of F.I.R. and conducting of post-mortem examination of both the deceased did not suffer from any inordinate delay---Case of acquitted co-accused was quite distinct and distinguishable from that of accused---Motive stood sufficiently proved against the accused---Recovery of pistol used in the commission of offence although was not satisfactorily proved, yet the above-mentioned evidence was sufficient to prove the case against accused beyond any doubt---Conviction of accused was upheld accordingly--- Recovery of weapon of offence had remained inconsequential--- Both accused had fired at the deceased, but record did not indicate as to firing of which accused was fatal---Accused were behind the bars since the year 1997 and were facing the agony of trial---Accused were entitled to the benefit of doubt as extenuating circumstances, while deciding the quantum of sentence---Sentence of death of each accused on two counts was altered to imprisonment for life in circumstances---Both the sentences were directed to run concurrently.

1998 SCMR 279; 2009 SCMR 502; 1998 SCMR 25; Iqbal alias Bhala and 2 others v. The State 1994 SCMR 1; Muhammad Amin v. The State 2000 SCMR 1784; Khadim Hussain v. The State PLD 2010 SC 669; Khizar Hayat v. The State 2011 SCMR 429 and Mir Muhammad alias Miro v. The State 2009 SCMR 1188 ref.

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

----S. 302(b)/34---Qatl-e-amd---Appreciation of evidence---Interested witness, reliability of---Extent and scope---Statement of an interested witness can only be discarded if he is proved to have an ulterior motive against the accused on account of enmity or any other consideration---Uncorroborated version given by an interested witness can be relied upon if the same is supported by the surrounding circumstances.

Khizar Hayat v. The State 2011 SCMR 429 ref.

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

----S. 302(b)/34---Qatl-e-amd---Sentence---Mitigating circumstance---Benefit of doubt---Principle---Accused is entitled to the benefit of doubt of extenuating circumstances, while deciding the quantum of sentence.

Mir Muhammad alias Miro v. The State 2009 SCMR 1188 ref.

Salman Safdar for Appellants.

Aftab Gul for the Complainant.

Shahid Bashir, Deputy Prosecutor-General for the State.

Date of hearing: 15th November, 2011.

2012 P Cr. L J 1274

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

QAMAR EJAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.208 and Murder Reference No.653 of 2006, heard on 12th January, 2012.

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

----Ss. 302(b) & 337-F(iii)---Qatl-e-amd, causing hurt---Appreciation of evidence---Solitary witness---Value---Quality and not the quantity of evidence has to be considered while deciding a case---Confidence inspiring and trustworthy evidence of a sole witness can safely be relied upon for conviction.

Dildar Hussain v. Muhammad Afzaal alias Chala and 3 others PLD 2004 SC 663; Farooq Khan v. The State 2008 SCMR 917 and Mst. Amina Bibi v. Noor Ahmad and 10 others 2007 AC 764 SC ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Relationship of prosecution witness with deceased---Effect---Mere relationship of a prosecution witness with the deceased is not sufficient to discard his evidence outrightly---Where presence of a related witness at the time and place of occurrence is natural and his evidence is straightforward, confidence inspiring and trustworthy, then the same can be safely relied upon to award punishment to an accused.

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

----Ss. 302(b) & 337-F(iii)---Qatl-e-amd, causing hurt---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Shop of complainant being adjacent to the shop of deceased, presence of complainant at the time and place of occurrence was natural---Testimony of complainant was supported by medical evidence and the same could not be rejected simply on the ground of his relationship with the deceased---Complainant being the real brother of the deceased, he could not possibly implicate the accused falsely and let off the real culprit---Substitution in such cases was a rare phenomenon---Defence evidence was not helpful to accused--- Conviction of accused under S.302(b), P.P.C. was consequently maintained--- Alleged motive was not proved by any cogent evidence--- Prosecution evidence had already been disbelieved by Trial Court qua the acquitted co-accused--- Immediate cause of occurrence resulting in the death of deceased was not determinable---Non-proof of specific motive by the prosecution might be considered a mitigating circumstance in favour of accused---Death sentence of accused was reduced to imprisonment for life in circumstances---Charge under S.337-F(iii), P.P.C. having not been proved against the accused, he was acquitted of the said charge---Appeal was disposed of accordingly.

Dildar Hussain v. Muhammad Afzaal alias Chala and 3 others PLD 2004 SC 663; Farooq Khan v. The State 2008 SCMR 917; Mst. Amina Bibi v. Noor Ahmad and 10 others 2007 AC 764 SC; Ahmad Nawaz and another v. The State 2011 SCMR 593; Iftikhar-ul-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; Muhammad Riaz and another v. The State 2007 SCMR 1413 and Iftikhar Ahmad Khan v. Asghar Khan and another 2009 SCMR 502 ref.

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

----S. 302(b)---Qatl-e-amd---Sentence---Discretion of court---Law has conferred discretion upon the court to withhold the penalty of death and to award the punishment of imprisonment for life, if the outlook of a particular case requires that course.

Iftikhar Ahmad Khan v. Asghar Khan and another 2009 SCMR 502 ref.

Azam Nazeer Tarar for Appellant.

Ch. Ghulam Mustafa, D.P.-G. for the State.

Zafar Iqbal Chaudhry for the Complainant.

Date of hearing: 12th January, 2012.

2012 P Cr. L J 1293

[Lahore]

Before Amin-ud-Din Khan, J

SAEED AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2501-B of 2011, decided on 30th January, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/34---Qatl-e-amd, common intention---Bail, grant of---Further inquiry---Contentions of the accused were that he had been falsely involved in the case with mala fide intention of the police, and that accused was not named in the F.I.R. but was subsequently involved on the basis of supplementary statements of witnesses---Validity---Accused was not nominated in the F.I.R. and was subsequently involved on the basis of statements made by two witnesses under S.161, Cr.P.C., wherein they stated that the accused made extra-judicial confession before them about committing the murder of the deceased---Possibility of false implication of the accused could not be ruled out---Benefit of doubt would go to the accused even at bail stage--- Co-accused was already granted bail and keeping the accused behind bars for an indefinite period would not have served or advanced the prosecution case---Bail was granted.

Ahmad Jamal v. State PLD 1996 Lah. 261; Hafiz Maulvi Muhammad Fazal Haque and another v. The State 1994 PCr.LJ 2392 and Mahmood Akhtar v. The State 1999 MLD 1206 rel.

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

----Ss. 164 & 497--- Bail--- Extra-judicial confession--- Scope--- Such confession without cogent corroboration was not enough to bring a case within the purview of prohibitory clause of S.497, Cr.P.C., to disentitle the accused from the concession of bail.

Ahmad Jamal v. State PLD 1996 Lah. 261 rel.

(c) Criminal trial---

----Presumption of innocence--- Scope--- Police might collect incriminating material against the accused during the course of investigation but presumption of innocence still remained in favour of the accused, unless he was tried, convicted and sentenced by a court of competent court.

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

----S. 497---Bail---Release of accused on bail---Effect---Release of accused on bail did not amount to his acquittal but his judicial custody was transferred to a private person who was bound to produce the accused person before the court.

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

----S. 497--- Bail--- Benefit of doubt--- Scope--- Law was not to be stretched in favour of the prosecution and benefit of doubt would go to the accused even at bail stage.

Hafiz Maulvi Muhammad Fazal Haque and another v. The State 1994 PCr.LJ 2392 rel.

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

----S. 497(2)---Bail---Cases falling within the prohibitory clause of S.497, Cr.P.C.---Scope---Accused, in such cases, was entitled to the concession of bail if his case came within the purview of further inquiry.

Mahmood Akhtar v. The State 1999 MLD 1206 rel.

Malik Muhammad Khalid Dawanj for Petitioner.

Muhammad Ali Shahab, D.P.-G. with Abdul Majid A.S.-I. for the State.

2012 P Cr. L J 1301

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

AKBAR ALI---Petitioner

Versus

JAMSHAID ALI and others---Respondents

Criminal Miscellaneous No.4740-B of 2011, decided on 15th March, 2012.

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

----S. 497(5)---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Application for cancellation of bail---Withdrawal of bail application---Scope and effect---Bail application filed by accused before Magistrate had been dismissed, whereafter accused filed two successive bail applications before court below, but same were withdrawn---Third bail application filed before court below was dismissed on ground of the conduct of the accused; a week after which accused filed another bail application which was accepted---Contention of complainant was that withdrawal of two successive bail applications of accused filed before court below amounted to dismissal of such applications on merits and as such there were no fresh grounds available to him for seeking his release on bail, but court below without adverting to this fact had illegally granted bail to the accused---Validity---Withdrawal of bail petition simpliciter would not mean that it was dealt with on merits or on grounds pressed---Such withdrawal would not be a bar in moving a second bail application, which must be heard by the same judge/bench which allowed the withdrawal of the first bail application---Bail petition of accused was not decided on merits, rather court below found him disentitled for the concession of bail due to his faulty conduct---Application for cancellation of bail was dismissed, in circumstances.

Muhammad Rizwan v. The State and 3 others 2007 PCr.LJ 78; Noraz Akbar v. The State and another 2011 PCr.LJ 852 and Wajid Ali v. The State 2009 PCr.LJ 275 rel.

Sono Khan v. Sikandar and another 2000 PCr.LJ 614; Muhammad Riaz v. The State 2002 SCMR 184; Haji Mian Abdul Rafique v. Riaz ud Din and another 2008 SCMR 1206 and Gohar Rehman v. Muhammad Tahir and another 2001 SCMR 815 ref.

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

----S. 497(5)---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque--- Application for cancellation of bail--- Bail application filed by accused before Magistrate had been dismissed, whereafter accused filed two successive bail applications before court below, but same were withdrawn--- Third bail application filed before court below was dismissed on grounds of the conduct of the accused with the observation that accused had not moved the Trial Court for his release on bail on any fresh ground and again filed his third bail application before court below---Validity---Observation of court below that remedy of bail was not availed before the Trial Court was factually incorrect because earlier two successive applications, which were dismissed as withdrawn were filed before the court below and as such the third one was to be filed in the same court instead of approaching the Trial Court.

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

----S. 497(5)---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Application for cancellation of bail---Bail application filed by accused before Magistrate had been dismissed, whereafter accused filed two successive bail applications before court below, but same were withdrawn---Third bail application filed before court below was dismissed on grounds of the conduct of the accused; a week after which accused filed another bail application which was accepted---Contention of complainant was that bail granting order of court below amounted to review of its previous order by which it had dismissed bail application of accused because of his conduct---Validity---Bail petition of accused was not decided on merits, rather court below found him disentitled for the concession of bail due to his faulty conduct, whereas the application in which bail was granted was decided by the court below independently on merits and on grounds pressed therein---No bar existed for raising grounds mentioned in the application for the reason that these grounds although were noted by court below in refusing bail to accused, but no decision was given by it thereon---Application for cancellation of bail was dismissed, in circumstances.

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

----S. 497(5)---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Application for cancellation of bail---Withdrawal of bail application---Scope and effect---Withdrawal of bail application simpliciter would not mean that it was dealt with on merits or on grounds pressed---Such withdrawal would not be a bar in moving second bail application which must be heard by the same judge/bench which allowed withdrawal of first bail application.

Wajid Ali v. The State 2009 PCr.LJ 275 rel.

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

----S. 497(5)--- Penal Code (XLV of 1860), S. 489-F--- Dishonestly issuing a cheque--- Application for cancellation of bail---Scope---Bail granting order can be recalled in very exceptional circumstances and such practice should not be encouraged particularly in a matter in which trial before the court was in progress.

Haji Mian Abdul Rafique v. Riaz ud Din and another 2008 SCMR 1206 and Gohar Rehman v. Muhammad Tahir and another 2001 SCMR 815 rel.

Ch. Babar Waheed for Petitioner.

Ch. Muhammad Qasim for Respondent No.1.

Muhammad Ishaque, D.P.-G. with M. Amjad, A.S.-I.

2012 P Cr. L J 1321

[Lahore]

Before Sardar Muhammad Shamim Khan, J

RAFIQ AHMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 5815-B of 2011, decided on 29th February, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 376/452---Rape, house trespass after preparation for hurt, assault or wrongful confinement---Bail, grant of---Further inquiry---Medical evidence contradicting ocular account of prosecution---Medical report of victim revealed that she was examined on the same day of the incident by a lady doctor, but fresh tears on hymen of victim were not observed---Hymen of virgin, as a result of sexual intercourse, is usually lacerated, having one or more radiate tears, the edges of which are red, swollen and painful and bleed on touching, if examined within a day or two after intercourse---Hymen of victim was ruptured at 3, 4, 5, 6, 7, 9 & 11 o'clock, which was suggestive of the fact that victim was a woman of easy virtue---Lady doctor had observed that vagina of victim admitted two fingers which was, prima facie, not possible if rape was committed only once with a virgin victim---No marks of violence were seen on the whole body and inner parts of victim's thighs---Lady doctor had not given any opinion regarding commission of rape with victim, rather, same was postponed till receipt of report of chemical examiner and DNA test---DNA test revealed that vaginal swabs of victim did not generate any male DNA profile, therefore no comparison could be made with DNA profile of accused---Accused was behind bars for about eight (8) months and his trial had not yet commenced---Case of accused came within the ambit of further inquiry, therefore, bail petition was allowed and accused was admitted to bail.

Modi's Medical Jurisprudence rel.

Mian Muhammad Ashfaq Hussain for Petitioner.

Hassan Mahmood Khan Tareen, D.P.-G. with Aftab, A.S.-I. with record for the State.

2012 P Cr. L J 1328

[Lahore]

Before Rauf Ahmad Sheikh, J

IRFAN UL HAQ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No.534 of 2011, decided on 19th December, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 466 & 465---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Lunatic---Application moved by the accused under S.466, Cr.P.C. for his release on the ground that he being of unsound mind was unable to make his defence, had been dismissed by Trial Court vide the impugned order---According to the report of the Consultant Psychiatrist, accused was suffering from "bipolar affective disorder"---Said ailment connoted two different conditions of the patient, in one condition he is a normal person, but in the other condition when he experiences a fit, he loses control over his mind and may become dangerous for himself and others---Person under such a fit cannot defend himself, but once he is out of it, he behaves normally and rationally and becomes conscious of his gains and losses---Accused might be in the manic phase at the time of his examination, but a statement made by him before a Magistrate regarding a compromise in a private complaint had clearly revealed that he was mentally fit and fully understood the nature of the statement made by him---Opinion of Trial Court had its own significance under S.465, Cr.P.C. and it is required to try the fact of unsoundness or incapacity only if it arrives at the conclusion that the accused is of unsound mind and is incapable of making his defence---Observations made by Trial Court after having seen the accused in the court could not be brushed aside merely due to the fact that Psychiatrist had given a different opinion, because the opinion of Trial Court had been confirmed by the aforesaid sane and rational statement of the accused---Impugned order did not suffer from any illegality or infirmity---Petition was dismissed accordingly; however, if at any stage of the trial, Trial Court was satisfied that due to recurrence of the ailment accused had become incapable to make his defence, it might refer him to the Institute of Mental Health for examination by a competent Board and then decide the matter afresh.

Mian Jameel Ahmad for Petitioner.

Aftab Hussain Bhatti for Respondents.

2012 P Cr. L J 1335

[Lahore]

Before Syed Iftikhar Hussain Shah, J

Mst. SYEDA AZRA ALI and another---Petitioners

Versus

THE STATE and others---Respondents

Writ Petition No.7742 of 2010, decided on 25th November, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 63 & 169---Qanun-e-Shahadat (10 of 1984), Arts.38 & 39---Penal Code (XLV of 1860), S.380---Constitution of Pakistan, Art.199---Theft in dwelling house, etc.---Constitutional petition---Judicial Magistrate had disagreed with the discharge report of the accused based on the ground that accused had admitted their guilt before the Investigating Officer and that this fact had been incorporated in the case diary---Validity---Magistrate was required to judiciously examine the report and to act fairly, justly and honestly---Magistrate was supposed to go through the material collected during investigation, see its admissibility in evidence and then to pass an order in accordance with law---Magistrate had failed to do so and he had relied upon the case diary, wherein the accused had allegedly admitted their guilt before Investigating Officer---Confession of accused before the Police Officer was inadmissible in evidence under Arts.38 and 39 of Qanun-e-Shahadat, 1984---While agreeing or disagreeing with the cancellation of case Magistrate should have gone through all the available evidence collected by the Police and thereafter should have passed the order---Impugned order was patently illegal and was set aside being void in circumstances, with the direction to Judicial Magistrate to pass the order afresh in accordance with law---Petition was allowed accordingly.

Ms. Alia Neelum for Petitioners.

Respondent No.2 in person.

Ch. Maqsood-ul-Hassan, Assistant A.-G. along with Zubair, A.S.-I. for the State.

2012 P Cr. L J 1350

[Lahore]

Before Sagheer Ahmad Qadri, J

M. IQBAL BUTT---Petitioner

Versus

THE STATE and 3 others---Respondents

Criminal Miscellaneous Nos.8604-BC to 8611-BC of 2011, decided on 20th March, 2012.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 420/468/471---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Applications for cancellation of bail---Tower-building constructed illegally up to the tenth floor---Complainants (petitioners) had booked different flats/portions/shops in the tower-building built by the accused persons, and it later transpired that said tower was constructed illegally and under the directions of the Supreme Court, concerned Authorities had demolished many of its floors---Court below granted pre-arrest bail to the accused persons with the observation that registered sale deeds existed in favour of the complainants by the accused persons, and the matter was one of civil liability---Contention of complainants was that accused persons deceived them by showing fake and forged plans allegedly sanctioned by the competent Authorities, and by deception and fraud procured huge amounts from the complainants---Validity---Broachers publicized by the accused persons in respect of the tower showed very attractive photographs as well as description of the property---During investigation accused persons never produced any document before the investigating officer to show that the tower in question was constructed under any approved plan---Accused persons did not have any sanctioned plan to construct the tower up to the 10th floor, and any sanctions granted were only for ground floor and basements---Title of accused persons over the disputed property was also under the shadow and they were never joined in the investigation by the investigating officer except for submission of a written statement by one of the accused---Contention of accused persons that they had not misused the concession of bail, could only be seen if they were first entitled for any such concession---Accused persons had also got adjourned present cancellation applications for about six (6) months on one or the other pretext---Prima facie offences alleged against accused persons were made out and prosecution was also denied of the opportunity to investigate the accused persons---Applications for cancellation of bail were allowed and bail granting orders passed by Court below were recalled.

Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427; Hidayat Ullah Khan's case PLD 1949 Lah. 21; The Crown v. Khushi Muhammad PLD 1953 F.C. 170; Muhammad Ayub v. Muhammad Yaqub PLD 1966 SC 1003; Sadiq Ali v. The State PLD 1966 SC 589; Zahoor Ahmad v. State PLD 1974 Lah. 256; Muhammad Anwar Samma and another v. The State 1976 SCMR 45; Murad Khan v. Fazal-­e-Subhan and another PLD 1983 SC 82; Muhammad Safdar and others v. The State 1983 SCMR 645; Zia-ul-Hassan v. The State PLD 1984 SC 192 and Mst. Qudrat Bibi v. Muhammad Iqbal and another 2003 SCMR 68 ref.

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

----S. 498---Penal Code (XLV of 1860), Ss. 420/468/471---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Grant of pre-arrest bail---Principles/conditions to be kept in mind by a court prior to allowing pre-arrest bail stated.

Following principles/conditions are to be kept in mind by a court prior to allowing pre-arrest bail to accused:--

(a) grant of bail before arrest is an extraordinary relief to be granted only in extraordinary situations to protect innocent persons against victimization through abuse of law for ulterior motives;

(b) pre-arrest bail is not to be used as a substitute or as an alternative for post-arrest bail;

(c) bail before arrest cannot be granted unless the person seeking it satisfies the conditions specified through subsection (2) of section 497 of Code of Criminal Procedure, 1898 i.e. unless he establishes the existence of reasonable grounds leading to a belief that he was not guilty of the offence alleged against him and that there were, in fact, sufficient grounds warranting further inquiry into his guilt;

(d) not just this but in addition thereto, he must also show that his arrest was being sought for ulterior motives, particularly on the part of the police; to cause irreparable humiliation to him and to disgrace and dishonour him;

(e) such a petitioner should further establish that he had not done or suffered any act which would disentitle him to a discretionary relief in equity e.g. he had no past criminal record or that he had not been a fugitive from law; and finally that, (f) in the absence of a reasonable and a justifiable cause, a person desiring his admission to bail before arrest, must, in the first instance, approach the court of first instance i.e. the Court of Session, before petitioning the High Court for the purpose.

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

Hidayat Ullah Khan's case PLD 1949 Lah. 21; The Crown v. Khushi Muhammad PLD 1953 F.C. 170; Muhammad Ayub v. Muhammad Yaqub PLD 1966 SC 1003; Sadiq Ali v. The State PLD 1966 SC 589; Zahoor Ahmad v. State PLD 1974 Lah. 256; Muhammad Anwar Samma and another v. The State 1976 SCMR 45; Murad Khan v. Fazal-­e-Subhan and another PLD 1983 SC 82; Muhammad Safdar and others v. The State 1983 SCMR 645; Zia-ul-Hassan v. The State PLD 1984 SC 192 and Mst. Qudrat Bibi v. Muhammad Iqbal and another 2003 SCMR 68 ref.

Zulfiqar Ali Toor and Zaheer-ul-Hassan Zahoor for Petitioners.

Muhammad Naeem Sheikh, Deputy Prosecutor-General for the State.

Aftab Ahmad Bajwa and Amir Saeed Rawn for Respondents.

Tariq, SI present.

2012 P Cr. L J 1370

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

MUHAMMAD ASGHAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.4105-B of 2012, decided on 11th April, 2012.

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

----S. 498---Penal Code (XLV of 1860), Ss. 302/324/34/107/109---Qatl-e-amd, attempt to commit qatl-e-amd, common intention, abetment---Interim pre-arrest bail, confirmation of---Accused was named in the promptly lodged F.I.R. but no overt act was ascribed to him, and the only allegation against him was that of hatching of conspiracy/ abetment---Complainant had failed to mention any specific time, date and place of hatching of conspiracy by the accused and his co-accused---Prerequisites of provisions of S.107, P.P.C. to constitute the offence of abetment were not made out from the reading of the F.I.R.---Complainant had stated in the F.I.R. that one month prior to the occurrence, two prosecution witnesses had informed him that accused along with his co-accused had hatched a conspiracy to murder the complainant and his sons, but the question was why the complainant kept silent for such a long time, i.e. till the occurrence had taken place--- Accused and his co-accused were involved in litigation against each other and in such circumstances both of them joining hands and hatching a conspiracy qua the commission of the offence, seemed superstitious and was sufficient to discard the same---Mala fides were apparent from the facts and circumstances of the case---Bail petition of accused was allowed and ad interim pre-arrest bail already granted to him was confirmed, in circumstances.

Syed Amanullah Shah v. The State PLD 1996 SC 241; Malik Muhammad Ishaq v. The State and others 2011 SCMR 1350; Ajmal Khan v. Liaqat Hayat and another PLD 1998 SC 97; Syed Muhammad Firdaus and others v. The State 2005 SCMR 784 and Meeran Bux v. The State and another PLD 1989 SC 347 rel.

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

----S.498---Penal Code (XLV of 1860), S. 109---Abetment/conspiracy---Interim pre-arrest bail, confirmation of---Principles---Case of a conspirator or abettor not present on the spot stands at a lower footing than that of the accused instigating his companion to commit the crime being himself present on the spot---Accusation of abetment/instigation/ conspiracy can very easily be set up when parties are inimically dispersed as possibility of false implication of the opponent is very much there.

Syed Amanullah Shah v. The State PLD 1996 SC 241 quoted.

Ch. Abdul Rasheed and Mian Qaisar Kabeer for Petitioner.

Mian Muhammad Awaiz Mazhar, Deputy Prosecutor-General for the State.

Sultan Ali for the Complainant.

Zahid, S.-I. with record.

2012 P Cr. L J 1378

[Lahore]

Before Sh. Ahmad Farooq, J

Khawaja SHAHBAZ AHMED---Petitioner

versus

DEPUTY DIRECTOR, DIRECTORATE-GENERAL OF INTELLIGENCE AND INVESTIGATION, RANGE OFFICE, GUJRANWALA and another---Respondents

Criminal Miscellaneous No.10333/B of 2011, decided on 27th October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Sales Tax Act (VII of 1990), Ss. 2(37), 3, 6, 7, 22, 23, 33(2), (5), (6), (8), (11), (13), (16), 38 & 73---Federal Excise Act (VII of 2005), S. 3A---Bail, grant of---Further inquiry---Bail sought on medical grounds---Accused was the sole proprietor of steel mills and allegations against him were that his steel mill supplied its products to different registered/unregistered persons without issuing sales tax invoices, causing huge loss to the public exchequer; that the steel mill made taxable supplies to registered persons but in order to understate its production and taxable supplies, said supplies were shown to have been made to unregistered persons; that taxable supplies of the steel mills were much more than what was declared to the sales tax department, and that the accused knowingly, deliberately and fraudulently understated and underpaid sales tax---Contentions of the accused were that he was suffering from acute heart disease; that he had been falsely implicated in the case due to mala fide of the authorities as the accused and other steel mill owners had been litigating against the sales tax department on different issues; that the prosecution had no incriminating material to connect the accused with the alleged commission of the offence; that alleged tax liability of the accused was yet to be determined by the adjudicating authorities and prior to that , no coercive measures, including arrest of the accused could be effected, and that the offences alleged did not fall within the prohibitory clause of S.497, Cr.P.C.---Validity---Accused was alleged to have evaded tax and excise duty to the tune of Rs.133 million but liability of said amount was yet to be determined by the competent authority---Prior to the final determination of tax liability the offence became a matter of further inquiry, entitling the accused to the concession of bail---Medical report of the accused showed that he was suffering from heart disease and two of his arteries had narrowed severely, and that he needed medicine and easy access to a hospital with treatment facilities---Further incarceration of the accused might have put his life at stake as his treatment was not possible in jail--- Accused was granted bail subject to deposit of 5% of the his total alleged liability with the concerned authority/ department.

The State through Collector of Sales Tax v. Muhammad Ashfaq Ahmed and others 2006 PTD 286 ref.

Kh. Adnan Ahmad for Petitioner.

Nadeem Mahmood Mian and Ms. Kausar Parveen for the Complainant.

2012 P Cr. L J 1405

[Lahore]

Before Sagheer Ahmad Qadri, J

MUHAMMAD KAUSAR IQBAL---Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE and others---Respondents

Writ Petition No.4287 of 2010, heard on 8th May, 2012.

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

----Ss. 3 & 5---Constitution of Pakistan, Art. 199---Constitutional petition---Prevention of illegal possession of property, investigation and procedure---Failure to prove possession over land---Complainant (petitioner) had filed a private complaint against the accused persons (respondents) under Ss.3 and 5 of the Illegal Dispossession Act, 2005, with the allegation that they got illegal possession of ancestral land belonging to the complainant and also damaged trees found on the land in question---Trial Court dismissed the complaint on basis of the police report, which stated that no occurrence as alleged by the complainant ever took place and the accused persons were actually co-sharers in the disputed land---Contentions of the complainant were that a suit for declaration had been decreed in favour of his father declaring him to be in possession of the disputed land; that the police report was misleading in light of the judgment passed by the civil court in favour of the complainant's father; that the Trial Court only relied on the report of the police and without affording an opportunity to the complainant lead further evidence at a preliminary stage in violation of S.202, Cr.P.C. and dismissed his complaint, and that prima facie offence under S.3 of the Illegal Dispossession Act, 2005, was made out---Contentions of the accused persons were that the land in dispute was "Shamilat Deh" reserved for common use of the owners of the village; that the complainant did not produce any evidence or revenue record to show his possession over the disputed land, and that the complainant had filed a suit for possession against the accused persons which was still pending---Validity---Private complaint was filed after about ten (10) days of the alleged dispossession, and no report whatsoever was lodged with the police---Complainant had annexed a photocopy of register "haqdaran zameen" showing the "Shamilat Deh" as "Maqbooza Malkaan" in possession of the owners of the village, but he had not produced any "Khasra Girdawri" showing his possession over the disputed portion of the land---Complainant had neither produced photocopies of the judgments allegedly passed in favour of his father by the civil courts nor any revenue record was produced---Possession over the disputed land having not been proved, Trial Court had rightly dismissed the complaint--- Constitutional petition was dismissed, in circumstances.

Mrs. Mehmooda Aftab through Attorney and another v. Marghoob Hussain and 3 others 2010 MLD 503; Abdul Rehman v. Muhammad Shahid Qureshi and another PLD 2009 Kar. 117; Iftikhar Ahmad v. Zulfiqar Ali and 3 others PLD 2008 Lah. 59; Malik Muhammad Naeem Awan v. Malik Aleem Majeed and 5 others PLD 2008 Lah. 358; Muhammad Riaz Ahmed Khan v. Imran Abdullah and 5 others 2009 PCr.LJ 491; Mian Sharif Shah v. Nawab Khan and 5 others PLD 2011 Pesh. 86; Jan Pervez v. Haji Fazal Hussain and 6 others PLD 2007 Pesh. 179; Sadiq Husain v. Ghulam Rasul and 6 others 2011 PCr.LJ 315; Fazal Karim v. The State and 10 others 2008 YLR 462; Noor Zada v. Muhammad Khalid and 6 others 2007 PCr.LJ 891 and Mst. Zahida Nasreen v. Additional Sessions Judge, District Sahiwal and 2 others 2010 PCr.LJ 575 ref.

Waqar Ali and others v. The State through Prosecutor/Advocate-General, Peshawar and others PLD 2011 SC 181 rel.

(b) Criminal trial---

----Complainant, duty of---Scope---Complainant is to state facts which, without extraneous considerations or evidence, satisfy the court of the existence of every ingredient of alleged offence---Without such, a complainant is not entitled to invoke aid of court and to foist travails of criminal trial on the person accused by him.

(c) Constitution of Pakistan---

---Arts. 4 & 10A---Right of individuals to be dealt with in accordance with law, etc., right to fair trial--- False implication--- Mala fide charge---Scope---Every person had the right to be provided a safeguard against his false implication under any charge based on mala fide---Court was responsible at any stage of the trial to protect the innocent people from their involvement in such type of civil or criminal litigation.

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

----Preamble---Constitution of Pakistan, Art. 199---Constitutional petition--- Object and scope of the Illegal Dispossession Act , 2005---Illegal Dispossession Act, 2005, was enacted with the object to protect the lawful owners and occupiers of the immovable properties from their illegal and forcible dispossessions by the property grabbers etc.---High Court observed that the provisions of the Act were unfortunately being utilized by certain people with mala fides to achieve their ulterior motives of converting civil litigation into criminal litigation---Constitutional petition was dismissed, in circumstances.

Ch. Imran Hassan Ali for Petitioner.

Kh. Khalid Farooq for Respondents.

Date of hearing: 8th May, 2012.

2012 P Cr. L J 1433

[Lahore]

Before Rauf Ahmad Sheikh, J

Dr. SAIMA MALIK---Petitioner

Versus

CAPITAL CITY POLICE OFFICER, LAHORE and 2 others---Respondents

Criminal Miscellaneous No.893-H of 2012, decided on 28th May, 2012.

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

----S. 491---Guardians and Wards Act (VII of 1890), S. 25---Habeas corpus petition for recovery of minor, pending petition before Guardian Judge for custody of minor---Effect---Agreement between the minor's mother (petitioner) and father (respondent), by which the latter had visitation rights---Father took the minor from his mother and refused to return him and filed an application under S.25 of the Guardians and Wards Act, 1890---Contentions of the mother were that the minor was handed over to the father as per their agreement but he did not return the minor, which was a violation of the agreement ; that the minor was not in proper custody, and that she had the right of "Hizanat" qua the minor---Contentions of the father were that the mother had given up her right regarding custody of the minor, and that the Guardian Judge had directed that the minor should not be removed from the father illegally, forcibly and without due course of law---Validity---Perusal of the agreement between the parties showed that the minor was in the custody of the mother but the father was given visitation rights---Father took the minor from his mother's residence and never returned him in violation of the terms of the agreement, and instead moved an application under S.25 of the Guardians and Wards Act, 1890---Contention of the father that since the matter was pending before the Guardian Judge, therefore, present application was not maintainable, was misconceived---When the minor was living with the father at the relevant time, there was no need for him to file the petition before the Guardian Judge, thus it was obvious that he did not approach the Guardian Court with clean hands---Proceedings under S.491, Cr.P.C., could not be terminated in view of the order of the Guardian Judge---Mother had the right of "Hizanat" qua the minor---Minor was about five (5) years old and needed constant love, care and affection of the mother---Father had agreed at the time of divorce with the mother that the minor would live with her---Petition for recovery of child was accepted by High Court in circumstances, and the minor was given in "Hizanat" of the mother---Parties were directed by High Court to abide by the agreement regarding visitation rights of the father, unless varied by the Guardian Judge.

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

----S. 491---Guardians and Wards Act (VII of 1890), S. 25---Habeas corpus petition for recovery of minor, pending petition before Guardian Judge for custody of minor--- Effect--- High Court, in suitable cases, can exercise the powers under S.491, Cr.P.C., even during the pendency of the [custody] petition before the Guardian Judge.

Barrister Hassan Dastgir Katchela for Petitioner.

Hameed Azhar Malik for Respondent No.3.

Abdul Samad, A.P.-G. and Saleem, S.-I. along with record.

2012 P Cr. L J 1449

[Lahore]

Before Sagheer Ahmad Qadri and Ali Baqar Najafi, JJ

MUHAMMAD RIZWAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.676-B of 2012, decided on 17th May, 2012.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotic---Border line case---Bail, refusal of---Accused being previous convict and a hardened criminal---Effect---Allegation against the accused was that charas weighing 1200 grams was recovered from his possession---Contentions of the accused were that alleged recovery of narcotic had been planted upon him; that no independent witness had been associated with the recovery proceedings; that the accused was no more required by the police for further investigation, and that it was a border line case---Validity---Allegedly, 1200 grams of charas was shown to be recovered from the possession of the accused, out of which 10 grams was separated and sent for analysis to the Chemical Examiner, whose report was positive---Offence under S.9(c) of Control of Narcotic Substances Act, 1997, fell within the ambit of prohibitory clause of S.497, Cr.P.C.---Accused was previously shown to be involved in 58 criminal cases, out of which 28 resulted in his conviction, therefore, he could be termed as a hardened criminal---Although the accused had no previous conviction in respect of narcotic offences but his previous conduct, involvement in other criminal matters and convictions, did not entitle him for any concession of bail only on the ground that present case was a border line case---Bail petition of accused was dismissed, in circumstances.

Mohsin Abbas v. The State and another 2011 PCr.LJ 1817 distinguished.

Sardar Tariq Hussain for Petitioner.

Muhammad Ishaq Hinjra, Additional Prosecutor-General for the State along with Nazim Abbas, S.-I. with Record.

2012 P Cr. L J 1463

[Lahore]

Before Muhammad Anwaarul Haq and Abdus Sattar Asghar, JJ

SHAHID SIDDIQUE and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1865 of 2001, heard on 20th June, 2012.

(a) Drugs Act (XXXI of 1976)---

----Ss. 23 & 27(1)---Import, manufacture and sale of spurious, unregistered and unlicensed drugs---Appreciation of evidence---For the offence punishable under S.27(1) of Drugs Act, 1976, regarding recovery of unregistered medicine from the store of accused, plea of accused was that same was not recovered from their possession, but were taken from the possession of a friend of accused who was present in the medical store at the relevant time and was showing said medicine to the accused---Accused had further stated that the prescription available on record had reflected that said medicine was prescribed to the said person by a Doctor---Drug Inspector had totally denied the presence of any friend of accused in the medical store, whereas other prosecution witness in his cross-examination had admitted that said friend of accused was present in the medical store at the time of raid---In view of said glaring contradiction in the statements of said two prosecution witnesses regarding the presence of said person at the medical store at the time of raid, charge against accused person, was doubtful---Accused were acquitted of the charge under S.27(1) of Drugs Act, 1976.

(b) Drugs Act (XXXI of 1976)---

----Ss. 23 & 27(4)---Selling spurious, unregistered and unlicensed drugs---Appreciation of evidence---Sentence, reduction in---Prosecution had succeeded in proving the allegations against accused persons under S.27(4) of Drugs Act, 1976---Conviction of accused persons under S.27(4) of the Drugs Act, 1976, was based upon well-settled principles of appreciation of evidence; and there was no reason to interfere with the same---In view of the intervening period of 12 years in fixation of appeal; and age of co-accused, which was more than 90 years, upholding of sentence awarded to accused persons, was not justified---Sentence of one year awarded to accused person under S.27(4) of the Drugs Act, 1976 was reduced to the sentence already undergone by them, in circumstances.

Barrister Danyal Ijaz Chadhar for Appellants.

Tariq Javed, Deputy District Public Prosecutor for the State.

Date of hearing: 20th June, 2012.

2012 P Cr. L J 1483

[Lahore]

Before Sardar Tariq Masood and Shahid Hameed Dar, JJ

Mst. NAJMA---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.6351/B of 2012, decided on 25th June, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possessing, trafficking of narcotics---Bail, grant of---Further inquiry---Complainant/Police Officer, proved to be personally inimical to accused and other members of her family including her mother---Accused was behind the bars for a period about eight months and conclusion of her trial, was still a remote probability---No evidence existed to believe that accused had any previous criminal antecedents---Further incarceration of accused could be of no consequence to the prosecution case for the reason that, she, after submission of report under S.173, Cr.P.C. had been facing the rigours of the trial for many months---Sufficient reasons existed to believe that case of accused called for further probe into her guilt as contemplated under S.497(2), Cr.P.C.--- Accused was admitted to bail, in circumstances.

Malik Rab Nawaz for Petitioner.

Muhammad Akhlaq, Deputy Prosecutor-General Punjab for the State with Farid S.-I.

2012 P Cr. L J 1493

[Lahore]

Before Syed Iftikhar Hussain Shah, J

MUHAMMAD GULFAM---Petitioner

Versus

REGIONAL POLICE OFFICER, SHEIKHUPURA RANGE, LAHORE and 7 others---Respondents

Writ Petition No.9788 of 2011, decided on 25th October, 2011.

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

----S. 156---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---Change of investigation---Complainant petitioner had sought the change of investigation to be declared as illegal on the grounds that challan had been submitted in the court, charge had been framed and statements of four prosecution witnesses had been recorded in the case---Investigation of the case had been changed by Additional Inspector-General of Police on the application submitted by the mother of the deceased and now the Police was re-investigating the case---Submission of subsequent challan in the case was not barred under the Criminal Procedure Code, 1898, but it was entirely the discretion of the court to admit the additional evidence collected during re-investigation being admissible or not---Investigating Officer was duty bound to collect all the relevant evidence pertaining to allegation of crime in issue so as to dig out the truth enabling and facilitating the court to administer justice between the litigants---Re-investigation even after the submission of challan under S.173, Cr.P.C. could not be stopped--- Constitutional petition was dismissed accordingly.

Syed Javed Hussain v. SHO 2010 PCr.LJ 442; Waseem Dogar v. D.I.-G. Police and others 2010 PCr.LJ 69; Muhammad Yousaf v. The State and others 2008 SCMR 453; Muhammad Ashfaq v. Amir Zaman and others 2004 SCMR 1924; Muhammad Asif v. S.S.P. 2010 YLR 944; Meer Dad v. Inspector-General Police 2010 YLR 3201; Saddar Din v. Deputy Inspector-General of Police PLD 2009 Lah. 585 and Malik Allah Yar Khan Awan v. State and 17 others PLD 2008 Lah. 394 ref.

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

----S. 156---Penal Code (XLV of 1860), Ss.302/324/148/149---Qatl-e-amd, attempt to commit qatl-e-amd, rioting---Re-investigation---Re-investigation of the case after submission of challan is not barred, but the opinion of the Investigating Officer is not binding on the court---Material collected by the police is to be weighed and not its opinion.

Muhammad Ashfaq v. Amir Zaman and others 2004 SCMR 1924 ref.

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

----S. 156---Reinvestigation after discharge of accused---Police is competent to reinvestigate the matter even after the discharge of accused by Magistrate, if some new evidence is brought on record to, prima facie, connect him with the alleged offence and police cannot be stopped from reinvestigation.

Muhammad Asif v. S.S.P. 2010 YLR 944 ref.

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

----S. 156---Police Order (22 of 2002), Art.18(6)---Penal Code (XLV of 1860), Ss.302/324/148/149---Qatl-e-amd, attempt to commit qatl-e-amd, rioting--- Change of second investigation--- Permissible--- Duly constituted Board can recommend reinvestigation of the case even after submission of challan, under Art.18(6) of the Police Order, 2002.

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

----S. 156--- Reinvestigation--- Investigating Officer after seeking permission from Trial Court may reinvestigate the matter, and if any material piece of evidence has been missed in earlier investigation, then reinvestigation is permissible.

Malik Allah Yar Khan Awan v. State and 17 others PLD 2008 Lah. 394 ref.

Asif Bashir Mirza for Petitioner.

Abid Hussain Sahi for Respondents.

Ch. Maqsood ul Hassan, A.-G. with Shahid, DSP, Ghulam Murtaza, Inspector and Mukhtar Ahmed, ASI.

2012 P Cr. L J 1502

[Lahore]

Before Abdul Sami Khan, J

MUHAMMAD NADEEM and another---Petitioners

Versus

THE STATE---Respondent

Criminal Revision Petition No.301 of 2009, heard on 9th April, 2012.

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

----Ss. 337-F(vi), 337-A(ii) & 337-N(2)---Causing hurt---Appreciation of evidence---Sentence---Ocular evidence was consistent regarding the role attributed to accused in the occurrence, weapons used in the offence, injuries inflicted on the victims and all other material points---Presence of injured witnesses on the spot at the relevant time was not questioned by the defence---Ocular testimony had inspired confidence---Medical evidence had sufficiently supported the ocular account---Recovery of "Sotas" from the accused and the motive had been proved by prosecution witnesses---Occurrence had taken place due to sudden flare up between the parties without any mens rea or premeditation on the part of accused---Accused were not shown to be either previous convicts or hardened or dangerous criminals---Case of accused, thus, was covered by S.337-N(2), P.P.C.---All cases of hurt provided for in Chapter XVI of P.P.C. were normally to be punished with payment of Arsh or Daman and the optional additional punishment of imprisonment as Tazir provided for the relevant offence could be awarded to an offender only if he was a previous convict or a habitual, hardened, desperate or dangerous criminal, or the offence had been committed by him in the name or on the pretext of honour and in the case of such an offender the sentence of imprisonment as Tazir would not be less than one-third of the maximum imprisonment provided for the hurt caused---Case related to the year 2001---Accused had faced the agony and anguish of a protracted trial for nine years before Trial Court---Accused were first offenders and they could not be burdened with additional punishment under Tazir---Sentences of 3 years' R.I. and 2 years' R.I. awarded to accused under Ss.337-F(vi) and 337-A(ii), P.P.C. by the Trial Court and upheld by the Appellate Court, were against the norms of S.337-N, P.P.C. and the same were therefore, set aside, but the sentence with regard to the payment of Daman passed against both the accused payable to the victims was upheld---One accused was also held liable to pay 1/5th of Diyat as Arsh---Accused were directed to deposit the said amount in the Trial Court within one month or in default to undergo three months' S.I.---Revision petition was disposed of accordingly.

1990 MLD 1500; 1995 SCMR 1373; 1999 SCMR 697; PLD 2009 Lah. 312; Ali Muhammad v. The State PLD 2009 Lah. 312 and Hafiz Muhammad Naeem and 3 others v. The State and another 2012 P.Cr.LJ 104 ref.

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

----S. 337-N(2)---Interpretation and scope of S.337-N(2), P.P.C.---In all cases of hurt provided for in Chapter XVI, P.P.C., the normal punishment to be awarded to an offender is payment of Arsh or Daman and the optional additional punishment of imprisonment as Tazir provided for the relevant offence can be awarded to an offender only where he is a previous convict, habitual, hardened, desperate or dangerous criminal, or the offence has been committed by him in the name or on the pretext of honour and in the case of such an offender the sentence of imprisonment as Tazir is not to be less than one-third of the maximum imprisonment provided for the hurt caused.

2009 P.Cr.R (Lah.) 811(d); Ali Muhammad v. The State PLD 2009 Lah. 312 rel.

Mian Abdul Quddus for Petitioners.

Mirza Abid Majeed, Deputy Prosecutor-General for the State.

Abdul Wahid Chaudhry for the Complainant.

Date of hearing: 9th April, 2012.

2012 P Cr. L J 1517

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD SHAFIQUE---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.9340-B of 2012, decided on 16th July, 2012.

Criminal Procedure Code (V of 1898)---

----S. 498--- Penal Code (XLV of 1860), Ss. 337-A(i)/337-F(v)/ 337-L(2)/148/149---Shajjah-i-Khafifah, ghayr-jaifah-hashimah, other hurt, rioting armed with deadly weapons, unlawful assembly---Pre-arrest bail, recalling of---Assault in court premises with iron rod---Accused nominated in the F.I.R. with a specific role---Injury (fracture) described in F.I.R. not matching the injury (fracture) shown in Medico Legal Report but fact of injuries received with iron rod admitted---Iron rod yet to be recovered---Accused filing subsequent bail application before the court below without disclosing dismissal of the first application on merits---Effect---Bail application of the accused was dismissed and ad interim pre-arrest bail already granted to him was withdrawn.

Rana Muhammad Arshad for Petitioner.

Humayoon Aslam, D.P.-G. along with Iqbal, S.-I. for the State.

Muhammad Javed Iqbal Jafery and Ahmad Aslam Ch. for the Complainant.

2012 P Cr. L J 1522

[Lahore]

Before Sardar Tariq Masood and Shahid Hameed Dar, JJ

HABIB-UR-RAHMAN alias BAO---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.4252/B of 2012, decided on 2nd May, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324/353/186/34---West Pakistan Arms Ordinance (XX of 1965), S 13---Explosive Substances Act (VI of 1908), S. 5---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public function, possession of illegal weapons, making or possessing explosives under suspicious circumstances, acts of terrorism ---Bail, grant of---Further inquiry---Allegation of encounter between police officials and accused persons, who were allegedly armed with lethal weapons including rocket launchers---Story contained in the F.I.R. seemed preposterous and exaggerated---Allegedly six accused persons fired rockets at the police on more than one occasion and the encounter spanned over many miles, but none of the police officials received even a single injury---Police claimed that it was an eye to eye encounter but the post-mortem report of the deceased accused persons revealed that they had been fired at and killed from their back, which negated the police version---Circumstances left a question mark over the claim of the police regarding a real encounter and appeared that something had been purposely hidden by the prosecution to build up a story to fit in with the claims of a ferocious encounter---Probability that accused had been involved in the case as part of a calculated move by the police, could not be ruled out---Investigation of the case was complete, challan against the accused had been submitted and he was no longer required for further investigation---Bail application of the accused was allowed and he was admitted to bail.

Ch. Abdul Rashid for Petitioner.

Khurram Khan, Deputy Prosecutor-General Punjab with Riaz Hussain S.-I. for the State.

2012 P Cr. L J 1529

[Lahore]

Before Ch. Muhammad Tariq and Sayyed Mazahar Ali Akbar Naqvi, JJ

REHMAT ELLAHI---Appellant

Versus

ABDUL MAJEED and another---Respondents

Criminal Appeal No.513 of 2004, heard on 31st May, 2011.

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

----Art. 40---How much of information received from accused may be proved---Mere pointation to a place without it being associated with any other evidence of commission of murder, would by itself not be covered by Art.40 of Qanun-e-Shahadat, 1984---Evidence of so called detection or disclosure being not covered by the said Art.40, would be inadmissible in evidence.

Muhammad Yar alias Yari v. The State 2001 MLD 807 ref.

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

----S. 417---Appeal against acquittal---Scope---Principles---Guidelines provided.

Ghulam Mustafa and another v. Mamraz Khan and others PLD 1985 SC 11 quoted.

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

----Ss. 302/109/34--- Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-e-amd, abetment, common intention---Appeal against acquittal---No misreading or non-reading of evidence available on record had been made by Trial Court and it had reached a just and proper conclusion---Complainant could not point out any iota of evidence brought on record, which might be considered sufficient for conviction of accused on a capital charge---Whole prosecution case was based on conjectures, surmises and suspicions, which could not be substituted for cogent material, which is sine qua non for conviction in a case of murder---For appeal against acquittal double presumption of innocence operated in favour of the accused---Impugned judgment of acquittal needed no interference---Appeal was dismissed accordingly.

The State through Advocate-General N.-W.F.P. Peshawar v. Humayoun and others 2007 SCMR 1417; Ziaul Rehman v. The State 2000 SCMR 528; Muhammad Yar alias Yari v. The State 2001 MLD 807; Ramkishan Mithnlal Sharma and others v. State AIR 1955 SC 104 and Ghulam Mustafa and another v. Mamraz Khan and others PLD 1985 SC 11 ref.

Sardar Muhammad Ishaque Khan for Appellant.

Raja Ghazanfar Ali Khan for Respondents.

Date of hearing: 31st May, 2011.

2012 P Cr. L J 1549

[Lahore]

Before Abdul Sami Khan, J

MUHAMMAD ZAFAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.3719-B of 2012, decided on 27th April, 2012.

(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---Contentions of the accused were that he had been falsely involved in the case by the complainant after joining hands with the police; that another similar F.I.R. was registered against the accused on the statement of the complainant's brother and accused was allowed bail in the said F.I.R.; that investigating officer of the case found the facts contained in the F.I.R. to be doubtful; that civil litigation for rendition of accounts was pending between the parties; that disputed cheque was stolen from the office of the accused for which an F.I.R. had been registered against a partner of the complainant, and that offence with which accused was charged did not fall within the prohibitory clause of S.497, Cr.P.C.---Validity---Civil suit for rendition of accounts had been filed by the accused against the partners of the complainant, in which disputed cheque in question was the subject matter---Investigation officer found the contents of the F.I.R. to be doubtful---Accused was a previous non-convict and he was no longer required by the police for further investigation---Offence with which accused was charged did not fall within the prohibitory clause of S.497, Cr.P.C.---Case against the accused called for further inquiry into his guilt within the purview of S.497(2), Cr.P.C.---Bail petition of accused was allowed and he was admitted to bail.

2009 PCr.LJ 1221; 2009 SCMR 1488; 2009 SCMR 174 and 2009 SCMR 1488 ref.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Riaz Jafar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708 and Muhammad Shafiq v. The State 2011 PCr.LJ 869 rel.

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

----S. 497---Bail---Benefit of doubt---Scope---Where doubt was created in a criminal case, benefit of the same was to be given to the accused, even at bail stage.

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

----S. 497(1)---Bail---Cases not falling within the prohibitory clause of S.497(1), Cr.P.C.---Grant of bail in such cases was a rule and refusal an exception.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Riaz Jafar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708 rel.

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

----S. 489-F---Dishonestly issuing a cheque---Scope---Section 489-F, P.P.C. was not a mechanism for recovery of an amount.

Muhammad Shafiq v. The State 2011 PCr.LJ 869 rel.

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

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque--- Bail--- Pending civil litigation between the parties---Scope---Criminal law could not be utilized to set the criminal machinery into motion for settling a pending civil dispute between the parties.

Rana Muhammad Sajjad Afzal for Petitioner.

Mirza Abid Majeed, Deputy Prosecutor-General and Gulzar Hussain Shah, ASI with record for the State.

Muhammad Umar Shahzad for the Complainant.

2012 P Cr. L J 1567

[Lahore]

Before Altaf Ibrahim Qureshi, J

Mst. MUNAZZA BIBI---Petitioner

Versus

S.H.O. POLICE STATION CITY CHICHAWATNI, DISTRICT SAHIWAL and 2 others---Respondents

Criminal Miscellaneous No.746-HB of 2011, decided on 17th April, 2012.

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

----S. 491---Similar second habeas corpus petition for recovery of minor---Principle of res judicata---Applicability---Principle of res judicata was not applicable in the matter of custody of minor.

Mst. Razia Rehman v. Station House Officer and others PLD 2006 SC 533 and Mst. Nazneen v. Judicial Magistrate, Larkana and 2 others 1999 MLD 1250 rel.

(b) Guardians and Wards Act (VIII of 1890)---

----S. 7---Guardianship of minor---Statement of parents---Relevance---Guardian Court had the bounden duty to examine the welfare of the minor and the statement of the mother or the father in such regard had no relevancy.

Mst. Razia Rehman v. Station House Officer and others PLD 2006 SC 533 ref.

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

----S. 491---Habeas corpus petition for recovery of minor---Mother (petitioner) had filed habeas corpus petition before the court below which was dismissed as not being maintainable and she was told to approach the Guardian Court for redress of her grievance---Contentions of the mother were that the father of the minor had turned her out of the house and did not let her take the minor with her, and that the minor was ill due to lack of care and diarrhea and if the minor (detenu) was not recovered, any misfortune towards his health and life might occur---Contentions of the father (respondent) were that the mother left the minor and the house on her own accord, and that she had relinquished her right of 'Hizanat' before the Guardian Court---Validity---Fact that the mother made a consenting statement relinquishing her right of 'Hizanat' after ten days of being turned out of the house, was strange---Welfare of the minor was the supreme consideration and Guardian Judge should not leave the minor at the mercy of the parties---Father, in spite of repeated orders by the High Court did not produce the minor and created all types of hindrances to avoid his production, which prima facie was a clear pointer of the fact that the father was not truthful in stating that the mother stepped out of the house on her own, leaving the minor---Custody of the minor was handed over to the mother , in circumstances---Petition was disposed of, accordingly.

Shehzad Iqbal for Petitioner.

Muhammad Abdul Wadood, D.P.-G.

Muhammad Zakariya Sheikh for Respondent No.2.

Muhammad Ramzan Khalid Joiya and Zafar Khan Seyal as Amicus Curiae.

Abdul Ghafoor, DSP (Legal) and Muhammad Arshad, Assistant Sub-Inspector.

2012 P Cr. L J 1581

[Lahore]

Before Shahid Hameed Dar and Mehmood Maqbool Bajwa, JJ

SHAHZADI MUMTAZ alias TAJI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.5000-B of 2012, decided on 24th April, 2012.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotic---Bail, grant of---Allegation against the accused was that charas weighing 1250 grams was recovered from her possession---Investigation officer of the case took the accused in custody and allegedly committed zina-bil-jabr with her, whereafter an inquiry was held which concluded with the observation that allegation of zina-bil-jabr with the accused was correct---Contention of the accused (lady) was that she had been falsely involved in the case under a conspiracy by the Investigation Officer with ulterior motives and he ravished her after taking her in custody---Validity---Investigation Officer had abused his authority/power to commit an act of immorality, and sufficient reasons existed to believe that the accused had been falsely involved in the case under a plan by the investigation Officer---Innocence of the accused could not be ruled out---Bail application of accused was accepted and she was admitted to bail with directions that penal actions recommended/suggested by the Inquiry Officer against the Investigation Officer must be taken to their legitimate end.

Raja Tariq Nadeem for Petitioner.

Muhammad Akhlaq, Deputy Prosecutor-General with Ramzan, S.-I. for the State.

2012 P Cr. L J 1591

[Lahore]

Before Mazhar Iqbal Sidhu, J

Mian MUHAMMAD ASLAM---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.586-B of 2011, decided on 19th April, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/109/148/149---Qatl-e-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Bail, refusal of---Allegation against the accused was that he impersonated himself as an advocate for which an F.I.R. was registered against him on the pointation of deceased (advocate) who was eye-witness for the said F.I.R.---Contentions of the accused were that he was not present at the time and place of occurrence; that alleged threats extended by the accused to the deceased were vague in nature, and that date, time and place of the alleged conspiracy/ abetment had not been mentioned in the F.I.R.---Validity---F.I.R. showed that accused was pointed out as a fake advocate by the deceased and in the presence of witnesses, an F.I.R. of cheating and fraud was registered against the accused---Co-accused (real brothers of the accused), fulfilled the command of the accused by committing the murder of the deceased---Statements of prosecution witnesses were available on record to connect the accused with the conspiracy/ abetment to murder the deceased---Accused was involved in twenty-four (24) criminal cases registered at different police stations, which made him a hardened, desperate and dangerous criminal---No case for grant of bail was made out---Bail application of accused was dismissed, in circumstances.

Abdul Rashid for Petitioner.

Shahid Bashir D.P.-G. with Ghulam Abbas S.-I. with record for the State.

Naseer-ud-Din Khan Nayyer for the Complainant.

2012 P Cr. L J 1610

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

KARIMA BIBI---Petitioner

Versus

THE STATE and others---Respondents

Writ Petition No.9497 of 2012, decided on 16th April, 2012.

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

----Ss. 22-A, 22-B, 154, 195 & 476---Constitution of Pakistan, Art.199---Constitutional petition---Prosecution for certain offences relating to documents given in evidence---Concurrent civil and criminal proceedings---Principles---Complainant (petitioner) filed an application before Justice of Peace alleging that her accused-brother (respondent), with the connivance of a stamp vendor prepared a forged memorandum of gift on behalf of their deceased father and in this manner deprived her from her sharai share in legacy of her father---Justice of Peace declined to allow such application of the complainant---Contention of complainant was that commission of cognizable offence was made out against the accused, therefore, Justice of Peace was not justified in declining issuance of the direction to the Station House Officer (SHO)---Validity---Civil suit concerning partition of property was pending between the parties, and allegedly forged gift deed had been produced in the said suit---Allegedly fabricated memorandum of gift was under consideration of the civil court where its execution and other allied matters would be determined by the court after recording of evidence, therefore, it was not appropriate at present stage to set the criminal machinery into motion---Civil and criminal cases could proceed side by side but ultimately preference was to be given to civil matters to avoid conflict of judgments---Order of Justice of Peace did not call for any interference---Constitutional petition was dismissed, accordingly.

Akhlaq Hussain Kiyani's case 2010 SCMR 1835 rel.

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

----Ss. 154, 195 & 476---Prosecution for certain offences relating to documents given in evidence---Jurisdiction of court--Scope---Jurisdiction of the court under Ss.195 and 476, Cr.P.C., in relation to the proceedings being conducted before the court could only be invoked if illegal act was performed during the proceedings pending in the court, while for all other illegal acts performed, the matter was to be proceeded by making a statement under S.154, Cr.P.C. before the police.

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

----Ss. 154, 195 & 476---Prosecution for certain offences relating to documents given in evidence---Scope---Concurrent civil and criminal proceedings---Principle---Held, in such cases, it was advisable to wait for the verdict of the civil court, which had the jurisdiction to direct the registration of a case if it found that a document under its consideration was fake and frivolous.

Sardar Akbar Ali Dogar for Petitioner.

2012 P Cr. L J 1622

[Lahore]

Before Sagheer Ahmad Qadri, J

Mst. ZAKIA BEGUM---Petitioner

Versus

MUHAMMAD SHAHBAZ and 2 others---Respondents

Criminal P.S.L.A. No.200 of 2011, decided on 30th January, 2012.

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

----S. 302/34---Criminal Procedure Code (V of 1898), S.417(2)---Qatl-e-amd---Special leave to appeal against acquittal---Refusal of---F.I.R. initially lodged by the real son of the complainant petitioner did not mention any name as accused---Subsequently, petitioner had involved the present three accused in the case through her private complaint for the murder of her son on the basis of last seen evidence and the extra-judicial confession allegedly made by them--- Admittedly the complainant herself was not an eye-witness of the occurrence and her statement was based only on hearsay, having come to her knowledge through prosecution witnesses---Last seen evidence brought on record was only to the effect that the accused were found near the place of alleged occurrence---Witness never claimed to have seen the deceased in the company of the accused---Regarding extra-judicial confession allegedly made by accused, it was astonishing as to why they had approached the said prosecution witness for confessing their guilt when no allegation had been levelled against them in the F.I.R. lodged by the real brother of the deceased---Trial Court while discussing the evidentiary value of the said evidence had rightly concluded that the same was not sufficient to corroborate the allegation made in the private complaint---Motive was not established on record and medical evidence in isolation was not sufficient to prove the charge against the accused---Scope of interference in an appeal against acquittal was very narrow and limited, because of availability of double presumption of innocence to the accused after acquittal, unless prosecution was able to make out a case, whereby Trial Court while ignoring the material evidence on record was shown to have reached the conclusion of acquittal against the settled principles of criminal justice---Impugned judgment of acquittal being lawful and justified did not call for any interference---Petition for special leave to appeal against acquittal was dismissed in limine in circumstances.

The State and others v. Abdul Khaliq and others PLD 2011 SC 554 ref.

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

----S. 417---Appeal against acquittal---Principles---Scope and guidelines to be adhered to by courts stated.

Following are the principles and guidelines to be adhered to by the courts while deciding appeals against acquittal:--

The scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. Interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Judgment of acquittal should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous. The Court of appeal should not interfere simply for the reason that on the reappraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities. Supreme Court being the final forum would not chary and hesitant to interfere in the findings of the courts below. Supreme Court observed that it was expedient and imperative that the above criteria and the guidelines should be followed in deciding these appeals.

The State and other v. Abdul Khaliq and others PLD 2011 SC 554 quoted.

M. Arif Rana for Petitioner.

2012 P Cr. L J 1655

[Lahore]

Before Ibad ur Rehman Lodhi, J

MUHAMMAD SADIQ and 2 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.7573/B of 2012, decided on 19th June, 2012.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.380---Theft in dwelling house---Pre-arrest bail, grant of---Accused had sought pre-arrest bail in a case registered against them under S.380, P.P.C.---Three co-accused in the case had already been allowed bail by High Court---Complainant had lodged the F.I.R. after an uncertain period of five or six months---Relationship of employees and employer existed between the parties and a civil suit for injunction was pending between them before Civil Court---Plaint of the suit contained all the required material of financial transaction between the parties---Complainant had surrendered to the jurisdiction of Civil Court and he had not prayed for rejection of the plaint---Dispute between the parties would finally be settled in the civil suit and the monetary claim raised in criminal action by the complainant would also be thrashed in the Civil Court---Mala fides on the part of the complainant while in league with the Provincial Police Department were very much obvious and accused were entitled to be protected against humiliation and rough treatment, which was visualized in the peculiar circumstances of the case---Ad interim pre-arrest bail already granted to accused was confirmed in circumstances.

Petitioner No.1 in handcuffs.

Mian Arshad Ali Mahar for Petitioners Nos.2 and 3.

Ch. Karamat Ali, Deputy Prosecutor-General Punjab with Afzal, S.-I. and Shahid Aslam, A.S.-I. with record for the State.

Humayun Rashid for the Complainant.

2012 P Cr. L J 1708

[Lahore]

Before Mazhar Iqbal Sidhu and Abdul Sami Khan, JJ

NOOR MUHAMMAD and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.4, Criminal Revision No.65 and Murder Reference No.305 of 2007, heard on 15th May, 2012.

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

----Ss. 302(b)/34, 337-A(i)/34 & 337-L(2)/34---Qatl-e-amd, hurt---Appreciation of evidence---Matter had been reported to the Police with sufficient promptitude without any conscious or deliberate delay---Presence of eye-witnesses at the spot had been established, as they had received injuries at the hands of accused and were also medically examined---Occurrence having taken place in daylight and the parties being known to each other, mistaken identity of accused or substitution of real culprits, was out of question---Relationship between eye-witnesses and deceased would not discard the ocular testimony, which stood strongly corroborated by other supportive evidence, facts and circumstances---Eye-witnesses had sufficiently explained the mode and manner of occurrence, accusation made in the F.I.R., weapons used in the incident, roles assigned to each accused and the locale of injuries sustained by them and the deceased---Ocular testimony was consistent, credible, trustworthy and confidence-inspiring---Defence plea had been taken by accused to save their skin, which was false and unbelievable---Motive for the occurrence stood proved---Medical evidence and recovery had sufficiently supported the ocular account---Violation of S.103, Cr.P.C. in recovery proceedings did not have any vital effect on the prosecution case, as no one from public would voluntarily like to join the same---Prosecution, thus, had proved its case---Complainant had supported the injuries sustained by the accused during the occurrence---Free fight without any premeditation had emanated from a sudden flare up wherein both the sides had received injuries---Conviction of principal accused under S.302(b), P.P.C. was, therefore, maintained, but his sentence of death awarded thereunder was reduced to imprisonment for life---Other accused were acquitted of the charge under S.302(b)/34, P.P.C. as they had not caused any injury to the deceased and had only caused simple injuries to eye-witnesses and their sentences were reduced to the imprisonment already undergone by them---Order for payment of compensation and Daman was upheld---Appeal was disposed of accordingly.

Mulla Riaz Ahmad v. The State 2002 SCMR 626; Ijaz Ahmad v. The State 2009 SCMR 99; Muhammad Ahmad v. The State and others 1997 SCMR 89 and Afzaal Ahmed v. The State 2003 SCMR 573 ref.

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

----Ss. 302(b)/34, 337-A(i)/34 & 337-L(2)/34---Qatl-e-amd, hurt---Appreciation of evidence---Testimony of related witnesses---Principle---Relationship of prosecution witnesses inter se and with the deceased is not enough to discard their testimony, if the same is otherwise strongly corroborated by facts and circumstances of the case and other supportive pieces of evidence.

Mulla Riaz Ahmad v. The State 2002 SCMR 626 and Ijaz Ahmad v. The State 2009 SCMR 99 ref.

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

----Ss. 302(b)/34, 337-A(i)/34 & 337-L(2)/34---Criminal Procedure Code (V of 1898), S. 103--- Qatl-e-amd, hurt--- Appreciation of evidence---Violation of S.103, Cr.P.C.---Effect---During recovery proceedings non-adherence of Investigating Officer to the provisions of S.103, Cr.P.C. does not have any vital effect on the prosecution case, because in such cases no one from the public would come forward to voluntarily join the recovery proceedings and to become a witness of recovery against the culprits of criminal mind.

Muhammad Ahmad v. The State and others 1997 SCMR 89 and Afzaal Ahmed v. The State 2003 SCMR 573 ref.

Syed Shahbaz Ali Rizvi for Appellants.

Malik Riaz Ahmad Saghla, Deputy Prosecutor-General for the State.

Sardar Zafar Ahmed Lound for the Complainant.

Date of hearing: 15th May, 2012.

2012 P Cr. L J 1735

[Lahore]

Before Muhammad Yawar All and Syed Iftikhar Hussain Shah, ,1J

SHEHZAD ASIF RAZA --Petitioner

versus

SPECIAL JUDGE ANTI-TERRORISM COURT and others---Respondents

Writ Petition No.8656 of 2011, decided on 8th May, 2012.

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

----Ss. 6, 7 & 8---Act of terrorism, determination of---Essentials---In order to determine as to whether the offence would fall within the ambit of S.6 of the Anti-Terrorism Act, 1997, it is essential to look into the allegations levelled in the F.I.R., the record of the case and the surrounding circumstances---Court was also to examine that the ingredients of the alleged offence had nexus with the object of the case as contemplated under Ss.6, 7 and 8 of the said Act---Motivation, object, design and purpose behind the act are also to be seen for determining its nature of terrorism, besides having been created by it a sense of insecurity in the public.

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

----Ss. 23 & 7---Penal Code (XLV of 1860), Ss.324/109/148/149---Constitution of Pakistan, Art.199---Constitutional petition---Attempt to commit qatl-e-amd, abetment, rioting armed with deadly weapons---Anti-Terrorism Court had dismissed the application moved by the accused petitioner under S.23 of the Anti-Terrorism Act, 1997, for transfer of the case to the court of ordinary jurisdiction---Validity---Accused party while armed with fire-arms had attacked on the complainant party on its coming out of the court after hearing of a pre-arrest bail application---As a result of said attack six persons were injured and leg of one of the victims was amputated---Courts were closed and the Lawyers lodged a protest by observing strike for commission of heinous offence inside the court compound, where numerous persons including Advocates, their clerks, litigants, courts staff and Presiding Officers were present---Such act of barbarism was liable to be dealt with iron hands and under the Third Schedule of the Anti-Terrorism Act, 1997, only Anti-Terrorism Court had been vested with the jurisdiction to try the cases of firing or use of explosives by any device including bomb blast in the court premises Anti-Terrorism Court, therefore, had the exclusive jurisdiction to try the present case and it had rightly dismissed the application of accused for transfer of the case to ordinary court---Constitutional petition was dismissed accordingly.

Basharat Ali v. Special Judge, Anti-Terrorism Court-II Gujranwala PLD 2004 Lah. 199; Bashir Ahmad v. Muhammad Siddique and others PLD 2009 Lah. 11 and Ahmad Jan v. Nasrullah and others 2012 SCMR 59 distinguished.

Muhammad Usman Sharif Khosa for Petitioner.

Mehar Nazar Abbas Chawan, A.A.-G. along with Muhammad Ali, A.S.-I. for the State.

Complainant in person.

Date of hearing: 8th May, 2012.

2012 P Cr. L J 1760

[Lahore]

Before Sagheer Ahmad Qadri and Ibad-ur-Rehman Lodhi, JJ

ALTAF AHMED---Petitioner/Appellant

versus

THE STATE and another--Respondents

Criminal Miscellaneous No.1 of 2011 in Criminal Appeal No.1386 of 2011, decided on 14th June, 2012.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss. 302(b), 324 & 337-F(v)---Qatl-e-amd, attempt to commit qatl-e-amd, ghayr-jaifah-hashimah---Suspension of death sentence during pendency of appeal---Scope---Trial Court convicting the accused after confusing him with a co­ accused---Effect---Accused was convicted under Ss.302(b), 324 and 337-F(v), P.P.C., and sentenced to death by the Trial Court---Contentions of the accused were that he was not alleged any active role in the occurrence and was shown as an abettor to the main culprits and that the Trial Court had confused the accused with a co-accused, who was assigned a specific role in the main occurrence---Validity---From the beginning the accused was assigned the role of an abettor/instigator and same role was assigned to him during the statements of the witnesses---Accused was convicted for causing death of the deceased and for injuring one of the witnesses, despite the fact that he was never alleged to have caused the death of the said deceased or causing injury to the said injured---Where by mere reading of evidence at a glance, court came to the conclusion that evidence available on record was not sufficient to sustain the conviction or illegality was floating on the surface, then while exercising power under S.426, Cr.P.C. the death sentence passed against a convict during the pendency of an appeal could be suspended---Sentence of the accused was suspended, in circumstances, and he was released on bail.

Fazal Rahim v. The State PLD 2004 Lah. 266 and Muhammad Attique v. Shoaib alias Labba and another 2007 SCMR 992 rel.

Hafiz Tanveer v. The State and another PLD 2010 Lah. 156 ref.

Muhammad Akram Qureshi and Naseer-ud-Din Khan Nayyar for Petitioner-Appellant.

Humayun Aslam, D.P.-G. for the State.

Barrister Usman G. Rashid for the Complainant.

2012 P Cr. L J 1788

[Lahore]

Before Sagheer Ahmad Qadri and Ibad-ur-Rehman Lodhi, JJ

ABDUL REHMAN SHANWARI and 4 others---Appellants

versus

ANTI-NARCOTIC FORCE and another---Respondents

Criminal Appeal No.342 of 2011, heard on 18th June, 2012.

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

---Ss. 12, 19 & 39---Forfeiture of assets of accused---Accused was tried and sentenced in two different cases---Conviction was set aside by High Court and case was remanded to the Trial Court for decision afresh---In the first round, subsequent to conviction of accused, his property was ordered to be forfeited---Appellate Court having set asideconviction of accused, forfeiture order had lost its efficacy---Subsequently when Anti-Narcotic Force moved again the Trial Court, Trial Court without giving any show cause notice to the owners of the property, straightaway, ordered the forfeiture of the property---When the earlier conviction of accused was set aside and fresh order convicting accused was passed by the Trial Court, it was incumbent upon the Trial Court to observe the procedure provided, particularly in S.39 of the Control of Narcotic Substances Act, 1997, if the assets of accused were going to be forfeited, and for satisfaction of the court a detailed inquiry was sine qua non and also a declaration to the effect that the °assets/subject-matter of forfeiture were derived, generated or obtained in contravention of S.12 of the Control of Narcotic Substances Act, 1997, was necessary, but the Trial Court had failed either to observe such procedure or to give any declaration as was required under the law---Impugned orders were declared to have been passed without lawful authority and illegal, and were set aside, in circumstances---Matter was remanded by the High Court to the Trial Court for decision afresh of the case of forfeiture of the assets of accused, after adopting all codal formalities.

Mian Muzaffar Ahmad for Appellants.

A.D. Naseem, Special Prosecutor for ANF.

Date of hearing: 18th June, 2012.

2012 P Cr. L. J 1823

[Lahore]

Before Ijaz Ahmad Chaudhary, C.J.

NADEEM. alias DEEMA---Petitioner

versus

DISTRICT PUBLIC PROSECUTOR, SIALKOT and 7 others---Respondents

Writ Petition No.15618 of 2011, heard on 7th September, 2011.

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

----Ss. 154 & 173---Information to police and investigation---Duty of investigating officer---After registration of criminal case, law-enforcing agency comes into motion at once for investigating the matter so as to find out the truth or otherwise of allegations set forth therein---Basic responsibility imposed upon Investigating Officer is to ascertain commission of offence, collection of substantiating material in support of allegations and identifying persons who perpetrated offence in question to bring their guilt at home.

(b) Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006)---

---S 9(5)---Word "scrutinize "---Connotation---Scrutinize means to examine a matter from all pros and cons and attend all its aspects with due care and caution inasmuch as to make deep search or inspect the matter in close, care and thorough manner.

The Merriam-Webster's Collegiate Dictionary (Eleventh Edition) and Advanced Chamber Dictionary rel.

(c) Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006)---

----S. 9(5) & (7)---Criminal Procedure Code (V of 1898), S.173---Constitution of Pakistan, Art. 199---Constitutional petition---Prosecutor, duties of---Scope---Accused was aggrieved of direction issued by District Public Prosecutor whereby he directed investigating officer to include certain offences in final investigation report, before the same could be filed in court---Validity---Mandatory exercise under S.9(5) of Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, delegated upon prosecutors to find out lacunae into report under S.173, Cr.P.C. or in investigation so that the same could be cured before submission the same to court of law for its trial---If prosecutor was prohibited to make such exercise then his job would only confine to the extent of receiving and forwarding the report which exercise would end to nothing but futility---Office of District Public Prosecutor was not only a post-office but it was a bridge between police and court to promote procedure of prosecution for better achievement of justice After making scrutiny of report under 5.173, Cr.P.C., prosecutor was to take two steps as were described in S. 9(5)(a) and (b) of .Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006---Prosecutor either had to return the report to incharge of Police Station or investigating officer, after pointing out defects/lapses with instructions to remove the same or he had to forward the same to court of law, if he found the same fit for submission before the Trial Court---Prosecutor was competent under S,9(7) of Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, to examine nature of offence committed by accused and if he found that wrong provisions/sections were mentioned in investigation report, then he was fully competent and had lawful power to convert the report according to the offences which according to his opinion prima facie had been committed; thereafter it was the court which had to see before framing of charge that which offence was actually applicable, in the case after perusing available record before him---Object of such exercise was that matter of applicability of offences would be decided by law knowing agencies and not by police which could not provide legal opinion directly to the court---High Court declined to interfere in direction issued by District Public Prosecutor to investigating officer for inserting offences in final investigating report---Petition was dismissed in circumstances.

Tanveer Hussain Qureshi and 8 others v. District Public Prosecutor, Sialkot 2009 PCr.LJ 1043;. Fayyaz Ahmad and another v. The State and others 2008 PCr.LJ 805; Mazhar Hussain v. Ishtiaq Hussain and another PLD 1990 Lah. 249; Aziz Ullah Khan v. S.H.O. Police Station City, Mianwali and 2 others 2001 YLR 263; Bahar Ali and 2 others v. State and another PLD 2008 Pesh. 28; Rasoolan Bibi v. Additional Sessions Judge and others. PLD 2009 Lah. 135; PLD 2008 Lah. 470 and Lal Khan and another v. Station House Officer, Police Station Kotwali Jhang and 6 others 2010 PCr.LJ 182 ref.

(d) Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006)---

----S. 12(2)---Criminal Procedure Code (V of 1898), S. 173---Responsibility of police towards prosecutors---Use of word "shall"-Scope-Word "shall" put an officer in charge of police station or investigating officer under obligation to comply with direction of prosecutor at every cost---On the one hand S.12(2) of Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, imposed compulsion on police to comply with direction of prosecutor in respect of submission of report under S.173, Cr.P.C. on the other hand it also leaves no room in understanding that prosecutor can issue direction to incharge of police station or investigating officer to comply with his guidelines/instructions within a specified period.

Mirza Shahid Baig for Petitioner.

Ch. Muhammad Hanif Khatana, Additional Advocate-General and Abdul Samad, Additional Prosecutor-General for Respondents Nos.1 to 5.

Ch. Zameer Bilal for Respondent No.6.

?Date of hearing: 7th September, 2011.

2012 P Cr. L J 1840

[Lahore]

Before Muhammad Anwaarul Haq and Abdus Sattar Asghar, JJ

NIAZ AHMAD KHAN---Appellant

versus

KHALID PERVAIZ and another---Respondents

Criminal Appeal No.86 of 1996, heard on 21st June, 2012.

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

----S. 302(b)/34---Criminal Procedure Code (V of 1898), S. 417(2-A)---Qatl-e-amd, common intention--- Appeal against acquittal---Appreciation of evidence---Attribution against accused, who was allegedly armed with .12 bore gun, was that he fired a shot with said gun at the deceased, which hit him on the right side of the chest---Both, the complainant and other prosecution witness, had reiterated prosecution version with regard to culpability of accused---Testimonies of both said prosecution witnesses were consistent and in line to each other with regard to attribution against accused for causing the fire-arm injury on the right side of the chest of the deceased---Ocular account was also corroborated by the medical evidence produced by the prosecution---F.I. R. was promptly lodged and promptitude in lodging of the F.I.R. was always considered to having guarantee of truth to a great extent---Motive was not denied---Mere factum that the Police had failed to recover any weapon of offence from accused, was no reason to disbelieve the consistent, reliable and trustworthy ocular account produced by the eye-witnesses fully corroborated by medical evidence--Impugned judgment passed by the Trial Court with regard to acquittal of said accused was perverse, based on non-reading and misreading of evidence, arbitrary, not sustainable in the eye of law and suffered from factual and legal infirmity, and was liable to set aside---Appeal against acquittal to the extent of said accused was allowed and impugned order of acquitted to his extent was set aside---In view of extenuating circumstances of the case, accused was sentenced to imprisonment for life as Tazir, in circumstances.

Ram Bali and others v. State AIR (38) 1952 Allahabad 289; Mushtaq Hussain and another v. The State 2011 SCMR 45 and Farman Ali and 2 others v. The State 1992 SCMR 2055 rel.

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

---Art.140---Cross-examination as to previous statements in writing---Under Art.140 of Qanun-e-Shahadat, 1984, a witness could be cross-examined as to previous statements made by him in writing or reduced into writing; and relevant to matters in question without such writing being shown to him, or being proved, but, if it was intended to contradict him by the writing, his attention must, before the writing could be proved, be called to those parts of it, which were to be used for contradicting him.

(c) Criminal trial---

---Proof of charge--- Prosecution, would remain under heavy burden to prove the charge against accused beyond any shadow of doubt.

Iftikhar Hussain and others v. The State 2004 SCMR 1185 rel.

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

----S. 302(b)/34---Criminal Procedure Code (V of 1898), S. 417(2-A)---Qatl-e-amd, common intention--- Appeal against acquittal---Appreciation of evidence---Allegation against co-accused was that he facilitated the actual assailant to reach the place of occurrence while riding the motorcycle---Investigating Officer had not been able to recover the alleged motorcycle---No overt act, except proverbial Lalkara was attributed to co-accused---Nothing was on record to establish that actual assailant acted under the influence of co-accused for commission of murder of deceased---Co-accused was not shown armed with any weapon in the F.LR.---Arraignment of co-accused, being real brother of actual assailant by throwing a wider net to involve maximum number of members of the same family, in the background of previous animosity, could not be ruled out in the facts and circumstances of the case-Impugned order of Trial Court granting acquittal to co-accused was neither arbitrary nor based on any misappreciation of evidence available on the record---Appeal against acquittal to the extent of co-accused, was dismissed; his surety would stand discharged.

Muhammad Yaqoob Sidhu for Appellant.

Javed Iqbal Tipu with Khalid Pervaiz in person for Respondents Nos.l and 2.

Tariq Javed, DDPP for the State.

Date of hearing: 21st June, 2012.

2012 P Cr. L J 1861

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

ABIDA PARVEEN---Petitioner

versus

DEPUTY SUPERINTENDENT OF POLICE and others---Respondents

Writ Petition No.19444 of 2011, decided on 27th February, 2012.

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

----Ss. 22-A, 22-B, 154 & 157---Constitution of Pakistan, Art. 199---Constitutional petition--- Registration of F.I.R.--- Information in cognizable cases---Ex-Officio Justice of Peace had directed the Station House Officer (SHO) to receive the application of the complainant (petitioner) and to proceed with it in accordance with the law, but the SHO instead of recording the statement of the complainant under S.154, Cr.P.C., straightaway proceeded to take cognizance under 5.157, Cr.P.C.---Validity---SHO was bound to record the statement of the complainant under 5.154, Cr.P.C. and then had to take further proceedings under the relevant provision of law-Act of SHO to straightaway proceed under S.157, Cr.P.C., was illegal---Sections 154 and 157, Cr.P.C., dealt with different contingencies, as the former provided for recording of F.I.R. at the instance of the complainant while S.157, Cr.P.C. dealt with the procedure for investigation of cognizable offences--- Section 157, Cr.P.C. left it to the judgment of the police official to refuse to investigate in certain cases but such power was not to be confused with his initial responsibility to record the F.I.R.---SHO had no choice but to record the F.I.R. although he had discretion in conducting the investigation---Order passed by Justice of Peace had not been implemented by the SHO in letter and spirit, and accordingly, he was directed by High Court to record the F.I.R. in compliance with the order of the Justice of Peace.

Lal Din v. SHO and others 1997 MLD 246; Tariq Siddiqui Khokhar v. ASJ and others PLD 2006 Lah. 507 and Haji Muhammad Khan v. Ch. Khizer Hayat PLD 1997 Lah. 424 rel.

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

---Ss. 154 & 157---Constitution of Pakistan, Art. 199---Constitutional petition---Distinction between Ss.154 and 157, Cr.P.C.---Scope---Sections 154 and 157, Cr.P.C., dealt with different contingencies, as the former provided for recording of F.LR. at the instance of the complainant while section 157, Cr.P.C. dealt with the procedure for investigation of cognizable offences---Section 157, Cr.P.C. left it to the judgment of the police official to refuse to investigate in certain cases but such power was not to be confused with his initial responsibility to record the F.I.R.---SHO had no choice but to record the F.I.R. although he had discretion in conducting the investigation.

Lal Din v. SHO and others 1997 MLD 246; Tariq Siddiqui Khokhar v. ASJ and others PLD 2006 Lah. 507 and Haji Muhammad Khan v. Ch. Khizer Hayat PLD 1997? Lah. 424? rel.

Mirza? Shahid? Baig? for? Petitioner.

Muhammad? Nasir? Chohan, A.A.-G. with? Farman? Ali, S.-I. for? Respondents.

2012 P Cr. L J 1877

[Lahore]

Before Kh. Imtiaz Ahmad and Ibad-ur-Rehman Lodhi, JJ

MAKHDOOM SHAHABUDDIN---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.932-B and Writ Petition No.1847 of 2012, decided on 3rd September, 2012.

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

----Ss. 498 & 337---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 14, 15 & 16---Control of Narcotic Substances (Regulation of Drugs of Abuse, Controlled Chemicals, Equipment and Materials) Rules, 2001, Sched. V---Possession of narcotics, import or export of narcotic drugs, trafficking or financing the trafficking of narcotic drugs etc., aiding, abetment or association in narcotic offences---Pre­arrest bail, refusal of---Ephedrine---Classification as a controlled narcotic substance---Scope---Approver, statement of---Evidentiary value---Scope---Allegations against accused persons were that they were involved in the grant of ephedrine/chemical quotas to two companies in contravention of rules; that they converted export status of said ephedrine to that for local consumption and let the two companies in question dispose of their quotas in an -unauthorized manner---Statements of approvers connected accused and co-accused with commission of the alleged crime---Contentions of accused and co-accused were that statements of approvers was a weak type of evidence having no substantial value; that accused had been involved in the case with mala fide, as his arrest warrants were issued on the day when he was going to be elected as the Prime Minister, and that ephedrine was not a narcotic substance---Validity---Ephedrine was a controlled chemical/narcotic substance---Approvers had fulfilled all the codal formalities as provided in S.337, Cr. P. C., as such their statements would have evidentiary value and would be material and relevant for consideration---Elements of mala fide could not be attached with the officials of investigation agency, as they would not have been benefited by replacing the accused from his candidature of Prime Minister---Pre­arrest bail could only be granted if the proposed arrest was for ulterior motives such as humiliation and unjustified harassment by a prosecuting agency, motivation for which was to. cause irreparable injury to reputation and liberty of the accused person---Said elements were missing in the present case rather had not been raised by accused and co-accused---Prima facie, accused and co-accused had misused their status and by their unauthorized and illegal acts the commission of alleged offence was made possible---Purpose of effective and meaningful investigation into the case could not be achieved by putting accused and co-accused at large---Accused and co-accused were denied bail, in circumstances.

Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82 rel.

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

----S. 498---Pre-arrest bail, grant of Grounds---Pre-arrest bail could only be granted if the proposed arrest was for ulterior motives such as humiliation and unjustified harassment by a prosecuting agency motivated by motives so as to cause irreparable injury to reputation and liberty of the accused person.

Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82 rel.

Abdul Rasheed Sheikh for Petitioner.

Raja Shahid Mehmood Abbasi and Barrister Waseem Ahmed Qureshi, Special Prosecutors ANF for the State.

Abid Zulfiqar Deputy Director, ANF with record.

2012 P Cr. L J 1887

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

KALSOOM BIBI and another---Petitioners

versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 7806-B of 2012, decided on 28th June, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/365/337-L(2)/34/ 109/337-A(i)---Qatl-a-amd, kidnapping or abducting with intent secretly and wrongfully to confine person, other hurt, common intention, abetment, shajjah-i-khafifah---Bail, grant of---Further inquiry---Allegation against the accused women was that they beat the brother of the complainant while the co-accused fired at and killed the complainant's father---Contentions of the accused women were that they were neither present at the place of occurrence at the relevant time nor they participated in the occurrence; that they have not been ascribed any injury on the person of the deceased; that injuries sustained by the complainant's brother fell under Ss. 337-A(i) and 337-L(2), P.P,C., which were bailable in nature, and that both the accused were women, hence their case was covered within the ambit of first proviso to 5.497, Cr.P.C.---Validity---Accused women were neither ascribed the role of raising `lalkara' nor any injury on the person of the deceased---Injuries on the person of the complainant's brother fell within the provisions of Ss.337-A(i) and 337-L(2), P. P. C., which were bailable in nature---Accused women were previous non-convicts--Investigation of the case was complete and the accused women were no more required by the police for further investigation---Question of vicarious liability of the accused women could be determined during the course of the trial after recording the prosecution evidence---Case against the accused women was one of further inquiry into their guilt and being females, their case was also covered within the ambit of first proviso to 5.497, Cr. P. C. ---Accused women were admitted to bail, in circumstances.

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

----S. 497(2)---Case of further inquiry---Right to bail---Scope---Where case against the accused was covered under S.497(2), Cr.P.C., he/she was entitled to the concession of bail as a matter of right.

Muhammad Ismail v. Muhammad Rafique. and another PLD 1989 SC 585 rel.

Zia Rasool for Petitioners.

Ch. Muhammad Mustafa, Deputy Prosecutor-General and Riasat Ali, S.-I. with Police Record for the State.

2012 P Cr. L J 1896

[Lahore]

Before Abdus Sattar Asghar, J

MUHAMMAD ILYAS---Petitioner

versus

SHO and others---Respondents

Writ Petition No.27674 of 2011, decided on 16th July, 2012.

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

----S. 173(3)--- Penal Code (XLV of 1860), Ss. 302/109/34---Constitution of Pakistan, Art. I99---Constitutional petition---Qatl-e­amd, abetment, common intention---Power of Magistrate to discharge an accused on basis of police opinion/report---Scope---Accused was nominated in the F.I.R. with the particular attribution of causing the fatal fire that at the skull of the deceased---Alleged motive for the occurrence was a marriage dispute---Magistrate had discharged the accused (respondent) on the request of the investigating officer---Complainant (petitioner) contended that the Magistrate did not take into account the sufficient incriminating material produced by the prosecution---Contention of the accused was that the deceased had committed suicide---Validity---Promptly lodged F.I.R. excluded chances PrI.I of false implication---Post-mortem report of the deceased corroborated the attribution of fire-arm injury to the accused---Defence version advanced by the accused was not -supported .by any independent witnesses of the locality---Investigation officer had declared the accused as innocent merely on the basis of the statement of the accused and some secret information---No reason was assigned to discard the statements of the alleged eye-witnesses who supported the version of the complainant---No motive or reason was substantiated for falsely implicating the accused---Occurrence took place in a sitting (baithak) arranged by the accused and the body of the deceased was also recovered from that place---Magistrate had concurred with the police opinion merely on basis of conjectures and surmises---Opinion of the police officer, apparently arbitrary and capricious in nature, being ipse dixit of the police was not binding upon the Magistrate---Constitutional petition was allowed, impugned order of the Magistrate was set aside, with a direction directed to forward the report under 5.173, Cr. P. C. to the court of competent jurisdiction for further proceedings in accordance with the law.

Falak Sher and another v. The State PLD 1967 SC 425; Muhammad Bashir v. SHO PLD 2007 SC 539; PLD 2007 SC 548 and Arif Ali Khan v. State 1993 SCMR 187 rel.

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

---S. 173(3)---Power of Magistrate to discharge an accused on basis of police opinion/report---Scope---Magistrate, under S.173(3), Cr.P.C., had the power to discharge an accused while agreeing with the police opinion but while passing such an order the Magistrate was expected to apply his judicious mind to the material placed before him by the police.

Sh. Muhammad Waqas for Petitioner.

Rai Ashfaq Ahmad Kharal, A.A.-G. with Liaqat Ali, S.-I. for the State.

Ch. Muhammad Ashraf for Respondent No.3.

Date of hearing: 16th July, 2012.

2012 P Cr. L J 1903

[Lahore]

Before Rauf Ahmad Sheikh, J

GHULAM MOHAY-UD-DIN alias BAOO---Appellant

versus

THE STATE and others---Respondents

Criminal Appeal No.887 of 2010, heard on 12th June, 2012.

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

----S. 376---Rape---Appreciation of evidence---Benefit of doubt---Alleged victim having a doubtful character---Effect---Allegation against the accused (appellant) was that he committed zina with the victim while the co-accused stood guard---Validity---Alleged incident took place when the victim was aged about 13/14 years and at-the time of her statement she was a fully grown up and "mature person, aged about 14/15 years---Victim did not tell the year of the occurrence and also did not narrate the period which had elapsed between the occurrence' and her statement---Victim had stated in her cross-examination that she was making the statement on asking of her father---Victim's father had submitted an affidavit to the effect that the accused persons had muffled their faces at the time of the occurrence---Doctor had opined that the victim had been subjected to sexual intercourse-many times and it was not alleged that prior to the occurrence, the accused had committed the mischief earlier also---Victim, in such circumstances, was obviously a person of dubious character and her solitary statement was not sufficient to prove the allegation of commission of illicit intercourse with her---Area from which the girl was allegedly removed, was a thickly populated area with houses on both sides of the street, therefore her removal from the area in bright day-light did not appear to be possible---Victim's father had admitted in his cross-examination that he had received a sum of money from the co-accused, which showed that the contention that the case was registered to extort money, was not without weight---Reasonable doubts existed as to the correctness of the prosecution case against the accused---Appeal was accepted and the conviction and sentence of the accused were set aside.

(b) Penal Code (XLV of 1860)-

---S.376---Rape---Appreciation of evidence---Conviction based on solitary statement of the alleged victim---Scope---Doubtful character of the alleged victim---Effect---Such offences were committed in loneliness, so the absence of eye-witnesses was not material and statement of the alleged victim corroborated by medical evidence was sufficient to prove the charge, but where the statement of the victim did not inspire confidence or her own character appeared to be doubtful, then her solitary statement could not be deemed to be sufficient to prove allegation of commission of rape punishable under 5.376, P.P.C.

Rai Muhammad Hussain Kharal for Appellant.

Mian Muhammad Awais Mazhar, D.P.-G. for the State.

Date of hearing: 12th June, 2012.

2012 PCr. LJ 1911

[Lahore]

Before Rauf Ahmad Sheikh and Muhammad Yawar Ali, JJ

THE STATE through Prosecutor-General, NAB---Appellant

versus

MUHAMMAD AYUB and 5 others---Respondents

Criminal Appeals Nos.1073, 893 and Writ Petition No.16688 of 2011, decided on 14th June, 2012.

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

----Ss. 12(c) & 23---Freezing of property-Modes---Embargo on transfer of property---Protection of property---Serious doubt existed as to genuineness of the transaction in favour of the company---Order whereby Accountability Court had directed that the property, be freezed, and the notice. be affixed thereon was meaningless and devoid of effectiveness---Modes to freeze the immovable property as provided under S.12(c) of National Accountability Ordinance, 1999 were; by taking possession; or by appointing of receiver; or by prohibiting the payment of rent or delivery of property to accused or to any other person on his behalf; or by all or any such methods as the Chairman NAB could deem fit---Law makers never intended that an embargo simpliciter on transfer be imposed, because on initiation of inquiry or investigation, that restriction was automatically imposed under S.23 of National Accountability Ordinance, 1999---Any mode provided under S.12(c)(i) to (iii) could have been adopted or any other method could have been resorted to under clause (iv) of S.I2, in order to protect the property and safeguard the interests of the claimants---Such order did not preclude the Trial Court to pass fresh orders because court was fully competent to pass appropriate orders in terms of the provisions of S.12(c) of National Accountability Ordinance, 1999---Vague orders without any concrete substance, could be rectified/clarified by subsequent orders, which was not prohibited under S.369, Cr.P.C.---Trial Court could have easily resorted to one of the modes prescribed under clauses (i) to (iii) of S.12(c) of National Accountability Ordinance, 1999 to safeguard the property from misappropriation, in order to ensure that the rights of the claimants were not adversely affected.

Bell Ram and Brothers v. Ram Lal and others 1925 Lah. 644(2); Lal Chand v. Sohan Lal and others AIR 1938 Lah. 220; Karam Ali and others v. Raja and others PLD 1949 Lah. 100; Muhammad Rashid v. lyaz Khan and others PLD 1978 Lah. 919; Mst. Saeeda Akhtar and others v. Lal Din and others PLD 1981 Lah. 623; Messrs Haydari Construction Co. Ltd. v. Bank of Credit and Commerce International Overseas, Limited and another 1991 CLC 149; Shadi Muhammad and others v. Abdul Rashid and others 1994 MLD 1856 and Fazal Karim v. Fateh Begum and 6 others 2004 CLC 365 distinguished.

Naya Daur Motors (Pvt.) Ltd. v. Federal Investigation Agency, C.B.C., Karachi and another 2000 MLD 1384; Global Securities Pakistan Ltd. v. Muslim Commercial Bank 2007 MLD 1957 and Mst. Sharifan Bibi and another v. Allah Bakhsh 1996 SCMR 1823 ref.

(b) Administration of justice---

----Courts while passing the order, mist keep in view the intention of the law makers; and if law would provide a specific mode for doing an act, it must be done strictly in the same manner.

Mian Muhammad Bashir, D.P.-G., NAB for Appellant.

Salman Akram Raja for Appellant (in. Criminal Appeal No.893 of 2011).

Sh. Usman Karim-ud-Din for Petitioner (in Writ Petition No.16688 of 2011).

Salman Akram Raja for Respondent No.3 (in Criminal Appeal No.1073 and Writ Petition No.16688 of 2011).

Dates of hearing: 13th and 14th June, 2012.

2012 P Cr. LJ 1924

[Lahore]

Before Ali Baqar Najafi, J

ABDUL SATTAR---Petitioner

Versus

THE STATE through S.-I/S.H.O.---Respondent

Criminal Miscellaneous No.5432-B of 2012, decided on 2nd May, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 103---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4---Manufacturing, owning or possessing intoxicant---Bail, grant of---Further inquiry---Prima facie, liquor was not recovered from the possession of accused, but according to the contents of F.I.R., huge quantity of liquor was recovered from the rickshaw, ownership of which would be determined by the Trial Court---Was not humanly possible that accused and his co-accused could run away from the spot in presence of already informed complainant and his subordinates, who were nine in numbers---Place of recovery though was thickly-populated area; and it was accessible for public, but no witness from the locality was associated to join the recovery proceedings---Requirement of law as contemplated under S.103, Cr.P.C., was missing---Offence under Art.4 of the Prohibition (Enforcement of Hadd) Order, 1979, was bailable, whereas offence under Art.3 of said Order, did not fall within the prohibitory clause of S.497, Cr.P.C.---Case of accused fell within the ambit of further inquiry in circumstances---Accused being entitled to the concession of post-arrest bail, he was admitted to bail, in circumstances.

Moeez Tariq for Petitioner.

Muqadass Tahira, Additional Prosecutor-General along with Munawar Hussain, A.S.-I. with record for the State.

2012 P Cr. L J 1959

[Lahore]

Before Sh. Najam Ul Hasan and Syed Muhammad Kazim Raza Shamsi, JJ

HABIB ULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.266 and Murder Reference No. 63 of 2008, heard on 17th May, 2012.

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

----Ss. 302(b) & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Cause and time of death and even death of the deceased having been admitted by both the sides, absence of post mortem report was itself not sufficient to discard the whole prosecution case---Complainant, real brother of accused and other injured eye-witness, another real brother of accused, whose presence at the scene of occurrence had not only been established but was even admitted by the accused, had fully implicated the accused with specific role of firing at the deceased and also injuring the eye-witness seriously, who had received multiple fire arm injuries---Fatal injury caused with rifle was specifically assigned to accused---Ocular account coming from independent natural witnesses was worth reliance---Stance taken by accused to have been involved just to grab his property was not substantiated on record--- Whole family including the wife and mother of accused could not be expected to involve the accused and leave the real culprit---Ocular testimony coupled with medical evidence and motive had proved the prosecution case against the accused---No previous motive existed for the occurrence and there was no premeditation for the same---Accused had fired only one shot at the deceased and did not repeat the same---Occurrence had taken place at the spur of the moment---Appeal of accused was consequently dismissed with the modification that sentence of death awarded to accused under S.302(b), P.P.C. was altered to imprisonment for life, with the direction for both the sentences to run concurrently.

Abdul Rehman v. The State 1998 SCMR 1778; Bashir Ahmad v. The State 2004 PCr.LJ 1326 and Muhammad Arshad and 2 others v. The State PLD 1996 SC 122 ref.

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

----S. 302(b)--- Qatl-e-amd--- Appreciation of evidence--- Non-performance of post-mortem---Effect---Where prosecution through convincing evidence can establish that death was immediate, proximate and direct cause of injuries sustained without being any element of negligence or other intervention, the non-performance of post-mortem would not be fatal.

Abdul Rehman v. The State 1998 SCMR 1778 and Bashir Ahmad v. The State 2004 PCr.LJ 1326 ref.

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

----Ss. 302(b) & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Fire-arm Expert's report---Credibility---Chain between time of recovery of crime empty till the date receiving the same in the Office of Forensic Science Laboratory is to be established and any break in the chain will make the report of the Arms Expert absolutely useless.

Sardar Mehboob for Appellant.

Qazi Sadar-ud-Din for the Complainant.

Munir Ahmed, D.P.-G. for the State.

Date of hearing: 17th May, 2012.

2012 P Cr. L J 1983

[Lahore]

Before Sagheer Ahmad Qadri and Ibad-ur-Rehman Lodhi, JJ

TARIQ SULTAN and another---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and 2 others---Respondents

Writ Petition No.15374 of 2012, heard on 4th September, 2012.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 5 (da), 9 (a)(xii) & 17---Criminal Procedure Code (V of 1898), S.403---Constitution of Pakistan, Arts. 13 & 199---Constitutional petition--- Show-cause notice--- Double jeopardy, principle of---Applicability---Petitioners, who were accused in Accountability Reference, were acquitted by Supreme Court but later on Accountability Court issued show-cause notices to the petitioners treating them as Benamidars and their explanation was called for---Petitioners sought recalling of show-cause notices but Trial Court declined to recall the same---Validity---After detailed findings and acquittal of petitioners from charge framed against them under S.9 of National Accountability Ordinance, 1999, issuance of show-cause notices under challenge and declining to recall the same by Trial Court were without lawful authority and of no legal effect---Issuance of show-cause notices was nothing but action which had been forbidden not only under the provisions of S.403, Cr.P.C. but also Art.13 of Constitution---High Court declared that show-cause notices issued to petitioners were illegal and without lawful authority and order passed by Trial Court was illegal order and the same was set aside---Petition was allowed in circumstances.

Muhammad Amjad Pervaiz for Petitioners.

Mian Muhammad Tahir Hanif, Additional Deputy Prosecutor-General and Mian Muhammad Bashir, Deputy Prosecutor-General for NAB.

Date of hearing: 4th September, 2012.

2012 P Cr. L J 24

[Peshawar]

Before Ejaz Afzal Khan, C.J. and Mazhar Alam Khan Miankhel, J

BAHADER KHAN---Appellant

Versus

THE STATE and another---Respondents

E. Cr. As. Nos. 1, 19, 24, 42 and 60 of 2009, decided on 23rd June, 2011.

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

----Ss. 9, 10, 18, 24 & 32---Qanun-e-Shahadat (10 of 1984), Arts.16 & 129(b)---Corruption and corrupt practices---Reference---Appreciation of evidence---Testimony of approver---Scope---Case was not investigated fairly and faithfully; it looked as if actual players had been let off and only figureheads had been brought forth to bear the brunt and entire exercise seemed to be an eye-wash---Neither the maker nor the scribe of the F.I.R. having been examined, nothing could be proved against any accused---Very first link, connecting accused with the crime, could not be held to have been proved on the record---Person who charged the accused being an approver, his testimony could not be relied upon, unless same was corroborated in material particulars---Other persons who implicated the accused and described his activity in connection with the preparation of pensionary documents in question, being approvers, their testimony, would not have much probative worth---Conviction in some cases though, could be recorded on the testimony of such witnesses, but rule of prudence, which had crystallized into a rule of law, required that, it alone could not be made basis for conviction, unless it was corroborated by independent, impartial and unimpeachable source---No such corroborative evidence of that nature was found on the record---Approvers could corroborate each other, but their testimony being tainted, could not be termed as unimpeachable in any sense of the word---Even otherwise one tainted piece of evidence, could not corroborate another tainted piece of evidence---Evidence of approvers was to be excluded, especially when it was presumed to be unworthy of credit under Art.129(b) of Qanun-e-Shahadat, 1984---Conviction and sentences awarded to accused by the Trial Court were set aside and they were acquitted of the charge by giving them the benefits of doubt, in circumstances.

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

----Arts. 59 & 61---Opinion of the Finger Print Expert---Evidentiary value---Opinion of the Finger Print Expert, could point to the complicity of accused in the crime, but when there was no other independent and above board evidence showing as to where did those finger prints come from, in whose presence they were taken and whether the official taking them could take them in the absence of the concerned person; or whether such official could accept the Finger Prints, impressed on a document in his absence; were equally relevant questions, whose answers had deep and even decisive bearing on the fate of the case---When no answer, muchless satisfactory would come forth, evidence of finger prints alone could not provide a dependable foundation for recording or maintaining the conviction of accused, especially when evidence of that type could be fabricated by the Investigating Agency at subsequent stage---Where such was the quality and quantity of evidence, same would not be in accord with safe administration of justice to maintain the conviction and sentences of accused.

Malik Haroon Iqbal for Appellant.

Mukkram Shah and Muhammad Jamil Warsak D.P.-G., NAB for the State.

Date of hearing: 8th June, 2010.

2012 P Cr. L J 63

[Peshawar]

Before Mian Fasih-ul-Mulk and Fazal-i-Haq Abbasi, JJ

IRFAN SAEED and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeals Nos. 305 and 376 of 2010, decided on 27th September, 2011.

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

----Ss. 302(b) & 148---Qatl-e-amd---Appreciation of evidence---Report of the occurrence having been lodged by the complainant within 30 minutes of the occurrence, there was hardly any time for deliberation or consultation---Statements of the complainant and other eye-witness were consistent on material points---Said eye-witnesses were further corroborated by the medical evidence, motive and the abscondence of accused---Despite lengthy cross-examination consisting of 24 pages, no dent or contradiction, whatsoever was created in the statements of the said eye-witnesses and their veracity could not be shaken---Accused went into hiding to avoid lawful arrest and remained absconder for about seven months, which was also a strong corroborative piece of evidence---Prosecution had fully established the guilt of accused, who was singly charged for firing at the deceased---Substitution was a rare phenomenon and it was not possible that the close relatives of the deceased would let the actual culprit scot-free and substitute an innocent person for the commission of the offence involving capital punishment---Conviction and sentence awarded to accused by the Trial Court under S.302(b), P.P.C., were maintained and appeal to his extent was dismissed---Community of intention and object having been disbelieved, conviction and sentence of accused under S.148, P.P.C. was set aside.

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

----Ss. 302(b), 148, 149---Qatl-e-amd---Appreciation of evidence---Motive---Sentence---Motive was always hidden deep in the mind of accused and was a guess on the part of the witnesses which was not an essential ingredient of the offence---Weakness or presence of motive, or failure to prove the same, would hardly make any difference in awarding sentence.

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

----Ss. 302(b), 148 & 149---Qatl-e-amd---Appreciation of evidence---Common intention---Scope---No evidence was on record to show pre-planning, pre-meditation, consultation and instigation against co-accused---Co-accused were only shown present at the spot and no overt act was attributed to them---Inference of common intention would only be reached, if it was deducible from the facts and circumstances of the case---All co-accused, deceased along with the eye-witnesses arrived at the scene of occurrence per chance similarly the accused also came there suddenly without knowing that deceased had come there---Co-accused in circumstances, had not shared common intention with main accused who was charged for firing at the deceased---Convictions and sentences awarded to co-accused were set aside and they were acquitted of the charges levelled against them and were released, in circumstances.

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

----Ss. 302(b), 148 & 149---Qatl-e-amd---Appreciation of evidence---Common intention---To establish common intention, it was necessary to have direct proof of pre-planning, premeditation, consultation and instigation, which leads to the inference, or the incriminating facts must be incompatible with the innocence of accused and incapable of any other explanation---Common intention would imply acting in pre-concert in pursuance of pre-arranged plan, which was to be proved, either from conduct or from circumstances or from incriminating facts.

Khawaja Muhammad Khan Gara and Mian Muhibullah Kaka Khel for Petitioners.

Ishtiaq Ibrahim and Ikramullah Khan, A.A.-G. for the State.

Date of hearing: 27th September, 2011.

2012 P Cr. L J 85

[Peshawar]

Before Mian Fasih-ul-Mulk and Fazal-i-Haq Abbasi, JJ

QAISAR ALI---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No. 595 and Murder Reference No. 30 of 2009, decided on 1st November, 2011.

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

----Ss. 302(b) & 404---Qanun-e-Shahadat (10 of 1984), Art. 40---Qatl-e-amd and dishonest misappropriation of property---Appreciation of evidence---Complainant and prosecution witness were not the eye-witnesses of the occurrence nor any one was charged in the F.I.R.---Prosecution case was based on the confessional statement of accused, medical evidence and positive report of the Serologist---Confessional statement of accused was recorded by Judicial Magistrate after completing all formalities fairly and justly---Accused got recorded his confession without any duress or coercion---Plea of duress and torture was taken by accused for the first time, after about two and half years of his arrest and retracted the confession in his statement recorded under S.342, Cr.P.C.---Such plea, taken at a belated stage, was of no avail to the accused---Confessional statement of accused was corroborated by the medical evidence, the recovery of blood-stained articles and positive report of Serologist---Confession of accused was further corroborated by the discovery/recovery of golden locket and ring, which was admissible as evidence under Art.40 of Qanun-e-Shahadat, 1984, because the place where accused concealed the same, was in his exclusive knowledge---No ill-will or motive for implication was suggested to the prosecution witnesses---Prosecution had proved its case against accused without any shadow of doubt and accused had made true and voluntary confession giving all details of occurrence and recoveries---Judgment passed by the Trial Court was based on correct appraisal of the evidence on record, which needed no interference---Death sentence awarded to accused was confirmed, in circumstances.

2009 SCMR 4; 2010 SCMR 1039; 2011 PCr.LJ 48; 2011 MLD 45; 2001 SCMR 988; 2002 SCMR 7493(sic.); PLD 2006 SC 219 and 2007 SCMR 782 ref.

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

----Arts. 41 & 42---Criminal Procedure Code (V of 1898), S.164---Confession---Retracted confession---Evidentiary value of a retracted confession---Scope---Court in order to judge the evidentiary value of a retracted confession, was to see as to whether the same appeared to be voluntary, without any inducement, promise, duress or coercion and whether same appeared to be true---If it appeared to be voluntary and true, then it was supposed to be the best evidence against the maker, even if the same was retracted that could be made sole basis of conviction, without looking for corroboration---Confessional statement had to be judged by looking into the facts and circumstances of the case.

1989 SCMR 446; 1992 SCMR 754; 1992 SCMR 1983; PLD 2005 SC 168 and 2010 SCMR 457 rel.

Muhammad Arif Jan for Appellant.

Ikramullah Khan, A.A.-G. for the State.

Fazle Ghafoor for the Complainant.

Date of hearing: 1st November, 2011.

2012 P Cr. L J 131

[Peshawar]

Before Mazhar Alam Khan Miankhel and Yahya Afridi, JJ

SAEED AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Case No. 674 of 2009 and Murder Reference No.24 of 2010, decided on 5th July, 2011.

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

----S. 9(c)---Customs Act (IV of 1969), Ss. 6, 7 & 8---Possessing and trafficking of narcotics---Appreciation of evidence---Sentence, reduction of---Statements of the prosecution witnesses, if taken in totality, were in consonance on material particulars---Samples were sent for chemical examination within 24 hours of the seizure made by the raiding authorities---No possibility existed for tampering with the samples---No search and recovery were made by the raiding party at the place of apprehending the accused and vehicle---Samples of the recovered contrabands obtained and sent for chemical examination, were not taken separately from each of the 207 packets of the 'charas' and 9 packets of 'opium'---Prosecution witness improved upon his earlier statement and testified that the samples were obtained from each and every packet of the recovered contraband---Such improvement by the witness not only contradicted the contents of the F.I.R., recovery memo of the contrabands, his statement during the investigation and the statement of other prosecution witness---Standard of proof had to be strict and beyond any doubt for special penal provisions having capital punishment---Prosecution could not seek shelter of any internal instruction; and that too of only a part thereof, ignoring the other particulars of the mode and manner of the recovery stated therein---Unless the samples were taken from the respective recovered packets of contraband and confirmed through a positive report of Forensic Science Laboratory, said contrabands contained in the packet, would not prove 'possession' required under Control of Narcotic Substances Act, 1997---Prosecution had clearly not proved that they had obtained samples from 207 recovered packets of 'charas' and a packet of 'opium'---Quantity to meet the threshold of S.9(c) of Control of Narcotic Substances Act, 1997 had not been proved by the prosecution---Such doubt, regarding the quantity of narcotics recovered from the 'conscious possession' of accused, due to lack of proof, should go in favour of the accused---Conviction of accused was maintained, but for offence punishable under S. 9(a) and not under S.9(c) of Control of Narcotic Substances Act, 1997---Accused was sentenced to six years' rigorous imprisonment, in circumstances.

Ghulam Qadir's case PLD 2006 SC 61 and Ismail's case 2010 SCMR 27 distinguished.

Noor Alam Khan for Appellant.

Iqbal Mohmand, D.A.-G. and Jamil Warsak, Standing Counsel for the State.

Date of hearing: 8th July, 2011.

2012 P Cr. L J 154

[Peshawar]

Before Ejaz Afzal Khan, C.J. and Mazhar Alam Khan Miankhel, J

ZAKIR HUSSAIN alias KAMI and 5 others---Petitioners

Versus

THE STATE through A.-G. KPK and another---Respondents

Writ Petition No. 499 of 2011, decided on 3rd May, 2011.

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

----Ss. 6, 7 & 23---Penal Code (XLV of 1860), Ss.302, 148/149---Constitution of Pakistan, Art.199--- Qatl-e-amd--- Constitutional petition---"Terrorism"---Scope---Transfer of case from Anti-Terrorism Court to court of ordinary jurisdiction---Accused facing trial before the Judge, Anti-Terrorism Court, had sought transfer of case to court of ordinary jurisdiction on the ground that same did not fall under provisions of S.6 of Anti-Terrorism Act, 1997---Application of accused was turned down by Judge, Anti-Terrorism Court---Validity---Very object and purpose behind the promulgation of Anti-Terrorism Act, 1997, was to provide speedy and expeditious mechanism for trial of heinous offences to prevent terrorism and sectarian violence---To attract the provisions of Anti-Terrorism Act, 1997, one had to find nexus of series of acts which accused had allegedly committed---To determine whether act of accused as narrated in the F.I.R. constituted offence of terrorism, was to be examined in the light of the definition of the word, "terrorism" provided in the Act. another determing aspect was whether act had created a sense of fear and insecurity in the public or in any section of public or community---If such ingredients were missing, then the act committed could not be held to be an act of "terrorism" and would be out of the domain of Anti-Terrorism Court---In the present case, matter of missing of the son of complainant was reported by the brother of the complainant---Matter was inquired and case was registered under S.364-A/34, P.P.C. against accused for abduction of minor son of the complainant---On recovery of the dead body, section of law was altered and S.302, P.P.C. was added---Incident appeared to be a brutal murder of a minor boy---Mere brutal murder in absence of requirements of Anti-Terrorism Act, 1997, would not constitute an offence under S.7 of said Act---Element of sense of fear or insecurity in public or a section of public, was also missing---Any case of murder with a story of brutality alone would not make a case triable by Anti-Terrorism Court, for which courts of ordinary jurisdiction were there to deal with---Facts narrated in the F.I.R. having not attracted the provisions of Anti-Terrorism Act, 1997, Anti-Terrorism Court had no jurisdiction to try accused thereunder--- Constitutional petition was allowed in circumstances.

Fazal Dad v. Col. (Rtd.) Ghulam Muhammad Malik and others PLD 2007 SC 571; Bashir Ahmad v. Muhammad Siddique and others PLD 2009 SC 11 and Ch. Bashir Ahmad v. Naveed Iqbal and 7 others PLD 2001 SC 521 rel.

Muhammad Din v. Muhammad Jehangir and 4 others PLD 2004 Lah. 779 and Meraj Hussain and 3 others v. Judge, Anti-Terrorism, Northern Areas, Gilgit and another 2007 PCr.LJ 1011 ref.

Astaghfirullah and Raziq Khan for Petitioners.

Lal Jan Khattak, D.A.-G. and Khawaja Muhammad Khan for the State.

Date of hearing: 3rd May, 2011.

2012 P Cr. L J 245

[Peshawar]

Before Shah Jehan Khan and Syed Sajjad Hassan Shah, JJ

JAMAL SHAH and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 422 of 2011, decided on 27th September, 2011.

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

----S. 9(c)---Possessing and trafficking of narcotics---Appreciation of evidence---F.I.R. was promptly lodged---"Charas" had been recovered in the presence of accused from a portion of the petrol tank of the motorcar in which they were travelling---Report of the samples of "charas" sent to Laboratory for analysis was positive---All the documents produced by the prosecution during the trial of the case had gone unchallenged on behalf of accused, which had supported the prosecution story---Plea taken by accused in defence that they were going on picnic was neither convincing nor the same was established on record---Accused had not explained their presence on the spot in their statements recorded under S.342, Cr.P.C.---No animosity of any sort of the police with the accused was shown---Huge quantity of contraband could not be foisted on the accused without any valid reason---Delay of 23 days in sending the samples to the Chemical Examiner for analysis was of no consequence, as no objection had been raised about the tampering of the contraband, nor safe custody of the same had been challenged---Prosecution evidence was consistent, coherent and had no material contradiction---Such was not the rule of universal application that in all circumstances the case would be registered by the Sub-Inspector---Nothing was brought on record in cross-examination, whereby any benefit could be extended to accused--- Appeal of accused was dismissed in circumstances.

Arshad Hussain v The State 2011 SCMR 1400; Faiz Ahmad v The State 2006 MLD 459; Muhammad Younas and others v Mst. Parveen alias Manu and others 2007 SCMR 393 and Muhammad Hanif v. The State 2003 SCMR 1237 ref

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

----Ss. 21 & 22---Search and investigation---Trial of accused is not vitiated merely on the ground that the case had been investigated by an officer who is not authorized to do so, unless the contrary intention appears from the language of the statute---Court would proceed to determine the guilt or innocence of accused on the basis of the evidence produced before it.

Muhammad Younas and others v Mst. Parveen alias Manu and others 2007 SCMR 393 ref

Abdul Latif Afridi and Shakirullah Afridi for Appellants

Matiullah Khan Baloch for the State

Date of hearing: 26th September, 2011.

2012 P Cr. L J 276

[Peshawar]

Before Nisar Hussain Khan, J

WALI KHAN---Petitioner

Versus

HASHAM KHAN and others---Respondents

Criminal Miscellaneous Quashment No. 176 of 2010, decided on 7th September, 2011.

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

----Ss. 249, 249-A & 561-A---Penal Code (XLV of 1860), Ss.337-A(i)/337-F(i)/147/149---Punishment of Shajah, ghayr-jaifah, rioting and unlawful assembly---Quashing of orders---Impugned orders had been passed by Magistrate, one under S.249, and the other under S.249-A, Cr.P.C.---Both said orders had been upheld by the Sessions Court in revision---Validity---Section 249, Cr.P.C. did not empower the Magistrate to fix time for appearance of the complainant and if he had failed to do so, then to acquit the accused on that basis---Magistrate, in the present case, had not passed order of acquittal of accused under S.249-A, Cr.P.C. after due compliance of legal formalities, rather he had passed one order whereby he stopped the proceedings under S.249, Cr.P.C. with the further direction to S.H.O. to produce the complainant along with the case file within one month, failing which the accused would stand acquitted under S.249-A, Cr.P.C.---Such was the original order whereby the accused had been acquitted---Second order was just a cosmetic one acquitting the accused on the application and recommendation of the local police, although practically the accused had already been acquitted by the earlier order, which was highly illegal, unlawful and unwarranted order amounting to abuse of the process of court---Mandatory conditions for acquittal of accused mentioned in S.249-A, Cr.P.C. had not been complied with by the Magistrate---Neither Prosecutor had been heard, nor any finding was given that the charge against the accused was groundless or there was no probability of their conviction in the case---Even no reasons had been given by the Magistrate in support of his findings---Magistrate had acted in sheer violation of legal provisions---Findings of the revisional court were not applicable to the peculiar circumstances of the case---While exercising powers under S.561-A, Cr.P.C. High Court would not entertain the petition as a court of appeal against the revisional order of lower court, but it had to be ascertained that whether any illegality causing miscarriage of justice or abuse of process of court had been committed by the lower fora or not---High Court having reached the conclusion that grave illegality had been committed, would be under a legal obligation to set it right irrespective of the limitation, in order to meet the ends of justice---Impugned orders were quashed in circumstances and the case was remanded to Magistrate to proceed with the trial in accordance with law.

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

----S. 561-A--- Powers under S. 561-A, Cr.P.C.--- Scope--- While exercising powers under S.561-A, Cr.P.C. High Court would not entertain the petition as a court of appeal against the revisional order of lower court, but it had to be ascertained that whether any illegality causing miscarriage of justice or abuse of process of court had been committed by the lower fora or not---High Court having reached the conclusion that grave illegality had been committed, would be under a legal obligation to set it right irrespective of the limitation in order to meet the ends of justice.

Mian Saadullah Jando for Petitioner

Said Karim Shalmass and Ikramullah Khan, A.A.-G for Respondents

Date of hearing: 6th September, 2011.

2012 P Cr. L J 299

[Peshawar]

Before Khalid Mehmood, J

SAJJAD AHMED---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 470 of 2011, decided on 31st October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Emigration Ordinance (XVIII of 1979), Ss.18 & 22---Fraudulently inducing to emigration and receiving money for providing foreign employment---Bail, grant of---Further inquiry---Unexplained delay of more than 3 years in lodging report---Two prosecution witnesses to whom amount was allegedly paid in lieu of Visa as per direction of accused, had not supported the version of complainant and in that regard they had submitted affidavits, which had negated the story of prosecution---Except two witnesses, there was no evidence or other record to connect the accused with commission of offence---Record also revealed that accused had moved complaint in the foreign country against the complainant---Case of further inquiry having been made out, accused was entitled to concession of bail---Accused was admitted to bail, in circumstances.

Saeed ur Rehman and Masood ur Rehman Tanoli for Petitioner.

Miss Andia Iqbal for the State

Nasim Khan Swati and Sajjad Afzal Khan for the Complainant

Date of hearing: 31st October, 2011.

2012 P Cr. L J 313

[Peshawar]

Before Attaullah Khan and Azmatullah Malik, JJ

WAHEEDULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 589 of 2009, decided on 23rd November, 2011.

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

----S. 9(c)---Possessing and trafficking of narcotics---Appreciation of evidence---Accused was driving truck in question and was incharge of the vehicle which was under his control and possession---Whatever articles were lying in the vehicle were under the control and possession of the accused---Huge quantity of narcotic was recovered from the secret cavities in the cabin of the truck for which no other person could be held responsible, except the person who was incharge of vehicle which he was driving---No inconsistency was found in the evidence of prosecution witnesses recorded during the trial and despite lengthy cross-examination no contradiction could be pointed out by the counsel for the accused---Fact that narcotics were secured from the possession of accused being driver of truck in question, he was involved in case and the prosecution had proved the case against him---Appeal filed by accused, was dismissed, in circumstances.

2010 PCr.LJ 567; 2011 YLR 411; 2007 PCr.LJ 843; 2010 SCMR 1016 and 2010 SCMR 927 ref

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

----Ss. 6 & 29---Presumption of possession of illicit articles---Section 29 of Control of Narcotic Substances Act, 1997 cast duty upon the court to presume in a trial under the Act that accused had committed the offence under that Act, unless contrary was proved---If the case was of possession of narcotic drugs then prosecution had to first establish the fact that the narcotic drugs were secured from the possession of accused, and the court was required to presume that accused was guilty, unless accused proved that he was not in possession of such drugs---Prosecution was supposed to establish that accused had some direct relationship with narcotic drugs or had otherwise dealt with it and if retention of the article or physical custody of it was proved then the burden of proving that accused was not knowingly in possession of the article was upon him---Practical difficulty of the prosecution to prove something within the exclusive knowledge of accused, must have made the legislature think that if the onus was placed on the prosecution, the object of Control of Narcotic Substances Act, 1997 would be frustrated---Knowledge was an essential ingredient of the offence as the word "possession" connoted in the context of S.6 of Control of Narcotic Substances Act, 1997, "possession with knowledge"---Legislature could not have intended to make mere physical custody without knowledge of offence, therefore "possession" must be conscious possession---By virtue of S.29 of Control of Narcotic Substances Act, 1997 the prosecution had only to show by evidence that accused had dealt with the narcotic substance or had physical custody of the same; or directly concerned with it, unless accused would prove by preponderance of probability that he did not knowingly or consciously possess the article---Without such proof, accused would be held guilty by virtue of S.29 of Control of Narcotic Substances Act, 1997.

Ismaeel v The State 2010 SCMR 27 rel

Miss Farhana Marwat for Appellant

Date of hearing: 23rd November, 2011.

2012 P Cr. L J 338

[Peshawar]

Before Attaullah Khan and Azmatullah Malik, JJ

BAKHT GUL---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 642 of 2009, 22, 51, 502 and 769 of 2010, decided on 29th November, 2011.

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

----S. 9(c)---West Pakistan Arms Ordinance (XX of 1965), S.13---Possession and trafficking of narcotics---Appreciation of evidence---Accused was driver of the car from which narcotic was recovered---Person driving the car was incharge of the same and it would be under his control and possession and whatever articles were lying in the car would be under his control and possession---Knowledge and awareness would be attributed to the incharge of the vehicle---No evidence in rebuttal having been produced by accused, appeal of accused against conviction and sentence, was dismissed, in circumstances.

Sherzada v. State 1993 SCMR 149 and Nadir Khan v. State 1988 SCMR 1899 rel

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

----S. 9(c)---West Pakistan Arms Ordinance (XX of 1965), S.13---Qanun-e-Shahadat (10 of 1984), Art.122---Possession and trafficking of narcotics and unlicensed arm---Appreciation of evidence---Allegation against co-accused was that they were sitting in the vehicle as passengers; their case was distinguished from the case of accused---Prosecution, in such cases, was required to produce evidence to show that said persons (co-accused) were in joint possession and control of the vehicle or that they had any concern or dealt with properly in any manner particularly in the case when the narcotic substance was kept in diggi (trunk) of the vehicle or hidden from all other persons---If no evidence was led by the prosecution to indicate that such persons knew that narcotic substance was concealed in the diggi (trunk); or had knowledge of the said place that would not attract the provision of Art.122 of Qanun-e-Shahadat, 1984---If the property was lying open within the view of said persons or they knew the placement of the property, then the situation would have been quite different in such a situation, they were required to explain their position; in terms of Art.122 of Qanun-e-Shahadat, 1984 and without such explanation their involvement in the case would have been proved---Prosecution had failed to prove the knowledge on the part of co-accused---Contraband was not within their view and they also had no knowledge of the placement of narcotic, therefore, they could not be held responsible of the joint possession of the property with the driver/accused---Prosecution had simply proved presence of co-accused in the car, mere presence in the car would not involve co-accused in the case, unless conspiracy or abetment of the offence was shown and proved---Prosecution, in circumstances, had failed to prove the case against co-accused---Conviction recorded against the co-accused vide impugned judgment, was set aside and they were released, in circumstances.

Qaisarullah v. State 2009 SCMR 579 rel

Hussain Ali for Appellant

Akbar Zaman Khattak for the State

Date of hearing: 29th November, 2011.

2012 P Cr. L.J 383

[Peshawar]

Before Qaiser Rashid Khan, J

YOUSUF KHAN and 2 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Quashment Petition No. 69 of 2011, decided on 31st October, 2011.

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

----S. 154---Registration of F.I.R.-Scope-Section 154, Cr. P. C. mandates that once a cognizable offence would take place and was reported to the Police, then the Officer Incharge of the Police Station concerned, would record the same in writing---No legal embargo existed on the registration of a second F.I.R., when a second version containing a separate and distinct cognizable offence was disclosed and need was felt that no factual investigation or trial could be held without properly evaluating and considering the true version---Trial Court was to separate the grain from the chaff in view of separate versions in the two F.I. Rs. and after holding of the trial in the case would determine the guilt and the guilty---Purpose of registration of F.I.R. by no count would mean to hold a person guilty of an offence, but to set into motion the process of investigation and, if at any stage during trial, it was found by the Trial Court that a case was not made out against accused, then his acquittal could be ordered under 5.265-K, Cr.P.C.

Wajid Ali Khan Durrani v. Government of Sindh 2001 SCMR 1556 and 2010 MLD 128 rel

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

----S. 561-A---Exercise of inherent powers by High Court---Scope---Interference by High Court in exercise of its inherent powers under S.561-A, Cr.P.C., would tantamount to pre-empting the functions of the Trial Court which would amount to curtailing the right of the complainant to prove her case against the petitioners---While exercising powers under 5.561-A, Cr.P.C., the High Court must maintain great care and caution, so that it could not result into miscarriage of justice.

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

----Ss. 22-A & 561-A---Inherent powers of High Court under S. 561-A, Cr.P.C.---Scope---Application before Justice of Peace for direction for registration of criminal case---Allegations of the complainant in her application under S.22-A, Cr.P.C. before Justice of Peace, per se having constituted a cognizable offence, application was rightly accepted by the Justice of Peace through impugned order for the registration of F.I.R.---Such order and the consequent F.I.R., were unexceptionable and warranted no interference, by High Court, in exercise of its inherent powers under S.561-A, Cr. P.C.---Where Justice of Peace while disposing of the application under S.22-A, Cr.P.C. had discussed and touched the merits of the case in detail, which was not required as the same would definitely prejudice the proceedings before the Trial Court, such observations of the Justice of Peace, were ordered by High Court to be expunged---Trial Court would decide the case on its own merits without being prejudiced therefrom---High Court directed that in the interest of justice, the trial of the case should be conducted by another Trial Court.

2011 MLD 223; 2011 YLR 2466 and 2009 YLR 330 ref

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Sanaullah Khan Gandapur for Petitioners

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Sanullah Khan Shamim, D.A.-G for the State

???????????

Saif-ur-Rehman Khan for the Complainant

???????????

Date of hearing: 31st October, 2011.

2012 P Cr. L J 398

[Peshawar]

Before Syed Sajjad Hassan Shah and Qaiser Rashid Khan, JJ

AZMAT KHAN and another---Appellants

Versus

THE STATE and 2 others---Respondents

Criminal Appeal No. 4 of 2010, decided on 19th October, 2011.

Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 540---Qatl-e-amd---Appreciation of evidence---Cross-version---Trial Court had not performed its duty as was required under the law---When the record of the F.I.R. of cross-case was requisitioned at the specific request of the defence, then it was the bounden duty of the court to have examined winesses about the said cross-version---Prosecution had failed to perform its job in a befitting manner as sans the examination of the witnesses of the cross-version, the true and correct picture would not emerge, as had been done in the case, when the proceedings in the cross-version were shelved with a saintly indifference---Trial Court did not notice the explicit language of S.540, Cr.P.C., through which ample powers had been conferred on the court to summon any witness at any stage of the trial whose examination was essential for the just decision of the case---In order to meet the ends of justice, and more so for doing substantial justice, remand of the case had become all the more essential; in view of the peculiar circumstances of the case where neglect and failure to perform duty had become the hallmark of the case, which had attracted attention of the court at the appellate stage---Impugned judgment of conviction and sentence awarded by the Trial Court was set aside and case was remanded for decision afresh after examining the essential witnesses in accordance with law, within three months.

Muhammad Karim Anjum for Appellants.

Jehanzeb Ahmad Chughtai for the State.

Muhammad Zahid Khan for the Complainant.

Date of hearing: 19th October, 2011.

2012 P Cr. L J 493

[Peshawar]

Before Mian Fasih-ul-Mulk and Fazal-i-Haq Abbasi, JJ

USMAN ALI---Appellant

Versus

KHAISTA MUHAMMAD and others---Respondents

Jail Criminal Appeal No.335 and Murder Reference No.11 of 2010, decided on 22nd November, 2011.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Complainant in his examination-in-chief, confirmed the version given by him in his report and made some obliging concessions in his cross-examination, but when he was declared hostile, he admitted the relationship in between him and the accused---Complainant also admitted presence of accused near the place of occurrence---Prosecution witnesses supported the prosecution version; recovery of blood-stained earth, shotgun having empty shell in its chamber from the spot and recovery of blood-stained shirt of the deceased---Accused made a clean-breast confession on the following day of the occurrence---Accused for the first time retracted confession after about 2-1/2 years---No hard and fast rule could be laid down as to how much time for reflection should be given to accused before recording confessional statement, because it depended on the circumstances of the case---Absence or weakness of motive or failure to prove the same, could not be taken as mitigating circumstance--- Confession of accused was corroborated by ocular/medical evidence, recovery from the spot and positive reports of Experts---Prosecution had proved its case against accused without any shadow of doubt---Judgment passed by the Trial Court based on proper appraisal of evidence, needed no interference---Death sentence awarded to accused, was confirmed and murder reference was answered in the positive, in circumstances.

1992 SCMR 196; 1993 SCMR 417; 1993 SCMR 1822; Bakhtawar Khan v. The State PLD 1995 SC 336; PLD 1996 SC 1 and 2010 SCMR 97 ref

Muhammad Yaqub v. The State 1992 SCMR 1983 and Bakhtawar Khan v. The State PLD 1995 SC 336 rel.

Mian Hussain Ali for Appellant.

Ikramullah Khan, A.A.-G. for Respondents.

Date of hearing: 22nd November, 2011.

2012 P Cr. L J 545

[Peshawar]

Before Syed Sajjad Hassan Shah and Khalid Mehmood Khan, JJ

RAHAT KHAN alias RAIT KHAN---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.91 of 2009, decided on 8th September, 2011.

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

----Ss. 302/324/34---Qatl-e-amd and attempt to commit qatl-e-amd---Appreciation of evidence---Occurrence having taken place in the daylight, misidentification of accused and that of co-accused was not possible---Presence of complainant along with deceased at the time of occurrence, was natural---Nothing was to contradict the statement of complainant who was thoroughly examined by the defence---Report was promptly lodged in the hospital as soon as injured/deceased was brought there---Site plan was prepared on the next day because after lodging of the report it was late hours and due to darkness it was not prepared---Recovery of blood-stained earth and three empties also corroborated the version of prosecution regarding the place of occurrence---Presence of complainant had been proved by the recovery of blood-stained earth and three empties supported by medical evidence---Nothing was on record to show that the complainant due to some personal grudge and ulterior motive had charged accused for his personal gain or for any other enmity---Statement of complainant was straightforward, natural, convincing and confidence-inspiring---Motive, even if not proved is not fatal as lack of proof of motive would not adversely affect the prosecution case---Unexplained long absconsion of accused, was a strong corroboratory evidence in the case---Accused did not surrender voluntarily before the Police, but he was arrested during raid---Recovery of blood-stained earth, three empties from the spot coupled with medical evidence, had duly supported the version of prosecution story---Conviction awarded by the Trial Court on the basis of solitary evidence fully corroborated by other circumstantial evidence was maintained and appeal being without force, was dismissed.

2011 SCMR 856 rel.

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

----Ss. 302/324/34---Qatl-e-amd and attempt to commit qatl-e-amd---Motive---Proof---If evidence available is straightforward, consistent, convincing and corroborated by medical evidence, then it is not fatal to the prosecution case if motive is not proved. [p. 549] C

2011 SCMR 856 rel.

Sanaullah Khan Gandapur for Appellant.

Qudratullah Khan for the State.

Abdul Latif Khan Baloch for the Complainant.

Date of hearing: 8th September, 2011.

2012 P Cr. L J 569

[Peshawar]

Before Mian Fasih-ul-Mulk and Fazal-i-Haq Abbasi, JJ

NOOR ZAMAN---Appellant

Versus

ABDUL LATIF and another---Respondents

Criminal Appeal No. 571 and Murder Reference No. 27 of 2009, decided on 23rd November, 2011.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 449---Qatl-e-amd, house-trespassing---Appreciation of evidence---Statement of one of the prosecution witnesses under S.161, Cr.P.C. was recorded on the 6th day of the occurrence--- No explanation, whatsoever was offered by the prosecution for such delay---Such statement of prosecution witness could not be relied upon in a case involving capital punishment---Another prosecution witness had stated that he had seen accused while running away from the scene of occurrence, but neither his name was mentioned in the F.I.R., nor his presence had been shown in the site plan---Prosecution's case was full of doubts---Complainant and the witnesses, mentioned in the F.I.R., were abandoned without any plausible and reasonable explanation---Medical evidence was shaky---Name of the sole eye-witness, examined at the trial was not mentioned in the F.I.R.---Single reason creating reasonable doubt in a prudent mind was sufficient for discarding the evidence produced by the prosecution---Impugned judgment could not be sustained---Conviction and sentences awarded to accused under S.302(b), P.P.C. as well as under S.449, P.P.C., were set aside and accused was acquitted and released, in circumstances.

1996 SCMR 167; 2002 SCMR 1795; 2002 SCMR 1986; 2003 YLR 777; 2008 YLR 1176; 1985 SCMR 854; PLD 1980 SC 225; 2003 SCMR 554; 2008 SCMR 688; 2010 SCMR 1025; 2011 SCMR 725 and 2011 SCMR 856 ref.

Ali Sher and others v. State 2008 SCMR 707; Lal Khan v. State 2006 SCMR 1846; Riaz Ahmad's case 2010 SCMR 846; Muhammad Sadiq's case PLD 1960 SC 223 and Rahat Ali's case 2010 SCMR 584 rel.

Ghulam Mohyuddin for Appellant.

Muhammad Sher Shah for the State.

Date of hearing: 23rd November, 2011.

2012 P Cr. L J 588

[Peshawar]

Before Fazal-i-Haq Abbasi and Mian Fasih-ul-Mulk, JJ

NADIR SHAH---Appellant

Versus

THE STATE and others---Respondents

Criminal Appeal No. 28 and Murder Reference No.2 of 2011, decided on 25th October, 2011.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-e-amd---Appreciation of evidence---Dying declaration---Scope---Deceased when injured and able to talk, lodged report within 45 minutes of the occurrence and had not alleged any motive---Dying declaration was made by the deceased properly without any delay in a critical condition---No false implication of accused because no motive was alleged by tke deceased nor suggested by defence---No specific mode of making a dying declaration was prescribed, even if it was oral---Dying declaration made soon after the occurrence at the time when the deceased was under the apprehension of death---When doctor had stated that the injured was. conscious and opined that he was able to talk, the same could not be discarded on the presumption of tutoring, especially when it was . not suggested by the defence to the scribe---Dying declaration was also corroborated by the statement of the prosecution witness who was a cousin of deceased; and also living in the neighbourhood---No enmity or reason for false implication of accused was suggested by the defence---Mere relationship with the deceased was no. ground for discarding the statement of the witness, when evidence was otherwise reliable, confidence-inspiring and trustworthy---Dying declaration was further corroborated by the recovery of blood from the place of occurrence, matching with the blood-stained garments of the deceased---Unexplained abscondence of accused for about eight years was another strong corroborative piece of evidence---Arrest of accused from a distant place, was an important circumstance indicative of his guilt---Prosecution had proved its case against accused by reliable, trustworthy and confidence-inspiring evidence beyond any shadow of doubt---Impugned judgment passed by the Trial Court was based on correct appraisal of evidence and sound reasoning---Death sentence awarded to accused, was confirmed, in circumstances.

PLD 2006 SC 255; 1978 SCMR 303; NLR 2004 Cr.L 213; PLD 1962 W.P. Kar 800; 2001 SCMR 1474; 2010 SCMR 55; PLD 2004 SC 367 and PLJ 2005 SC 500(sic.) ref.

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

----Art. 46---Dying declaration---Evidentiary value---While determining, the evidentiary value of dying declaration, same would be doubted when there was any delay in recording the dying declaration; or there were chances of tutoring, or when there was no imminent apprehension of death---If said elements were not present, then the same could safely be relied upon for basing conviction and it could not be ignored.

(c) Criminal trial---

----Motive---Weakness or absence of motive or failure- to prove the same could not in any way adversely affect the prosecution case, when same was proved by reliable and trustworthy evidence.

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

----Ss. 164 & 265-J---Qanun-e-Shahadat (10 of 1984), Preamb'e---Statement made under S.164, Cr. P. C---Admissibility---Statement of witness recorded under 5.164, Cr.P.C., if made in the presence of accused; and he had notice of the same and was given an opportunity of cross-examining the witness, may, in the discretion of the court, if such witness was produced and examined, be treated as evidence in the case for all purposes subject to the provision of Qanun-e-Shahadat, 1984.

(e) Criminal trial---

----Appreciation of evidence---Not necessary for prosecution to examine each and every witness--Quality and not the quantity of evidence was to be produced---If statements of witnesses were of any help to the defence, it was its duty to produce and exhibit certified copies of said statements in defence or the Investigating Officer should have been confronted with them by the' defence---Each and every criminal case was to be decided on its own peculiar circumstances and facts because facts of two criminal cases were never alike.

Sher Muhammad Khan for Appellant

Rashid Ali Khan for the Complainant

Ikramullah Khan, A.A.-G. for the State.

Date of hearing: 25th October, 2011.

2012 P Cr. L J 630

[Peshawar]

Before Nisar Hussain Khan, J

SHER ALI KHAN and 6 others---Petitioners

Versus

Haji ATTA ULLAH and 2 others---Respondents

Criminal Miscellaneous Quashment Petition No.8 of 2011, decided on 30th November, 2011.

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

----Ss. 157, 169, 173 & 561-A---Penal Code (XLV of 1860), Ss.324/148/149---Attempt to commit qatl-e-amd rioting armed with deadly weapon and common object---Quashing of F.I.R.---Scope-Petitioners/accused had been charged for indiscriminate firing on the person of complainant with intention to commit gatl-e-amd---Complainant had made a report with regard to a cognizable offence, for which Local Police was legally bound to register, which Police did so after conducting inquiry under S.157(1), Cr.P.C.---Matter being still at investigation stage, accused could put forward their defence version before the Investigating Officer, who was supposed to dig out the truth, during investigation---If the Investigating Officer would find the allegations in the F.I.R. as fake, he could proceed under Ss.169 and 173, Cr.P.C. and other enabling legal provision in that behalf---Petitioners had sought quashing of F.I.R., which was still under investigation--High Court declined interference in the case when it was at investigation stage, either by exercising constitutional jurisdiction or its inherent powers under 5.561-A, Cr.P.C.---Idea behind such principle was that the Police should be allowed to perform its duty in its own sphere and to reach at a definite conclusion with regard to complicity or innocence of the accused---Investigating Officer and Incharge of Police Station had been vested with powers under Ss.169 and 173, Cr.P.C. to submit their report with their opinion, if evidence in the case was found deficient or there were no reasonable grounds to justify the forwarding of accused for trial---On submission of. report under 5.173, Cr.P.C. for trial, accused could seek his acquittal under S.249-A or 265-K, Cr.P.C., at any stage from the Trial Court---Provisions of 5.561-A, Cr.P.C. were sparingly invoked, especially when there were no other provisions available to accused---Particularly, at investigating stage of the case---Points agitated, investigation required appreciation and analysis of evidence which exercise could only be undertaken by the Trial Court after full dress trial of the case---High Court, while exercising inherent powers, would only interfere, when there was any jurisdictional defect, patent violation of some provision of law, allegation as contained in complaint or F.I.R., even if believed, no case was made out and continuation of proceedings would amount to sheer abuse of process of the court; or an endeavour was made to enforce civil liability through the machinery of criminal court/law---No such infirmity had been pointed out in the case, which could warrant interference of the court for exercise of its inherent jurisdiction under S.561-A, Cr. P. C. ---Petition was dismissed.

Muhammad Bashir v. SHO, Okara Cantt and others PLD 2007 SC 539 and Brig. (Retd.) Imtiaz Ahmed v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142 rel.

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

----S. 56I-A---Inherent jurisdiction of High Court under S. 561-A, Cr.P.C.---Scope---High Court while exercising inherent powers, would only interfere, when there was any jurisdictional defect, patent violation of some provision of law, allegation as contained in complaint or F.I.R., even if believed, no case was made out and continuation of proceedings would amount to sheer abuse of process of the court; or an endeavour was made to enforce civil liability through the machinery of criminal court/law.

Muhammad Bashir v. SHO, Okara Cantt. and others PLD 2007 SC 539 and Brig. (Retd.) Imtiaz Ahmed v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142 ref.

Ghulam Muhammad Sapal for the Petitioners.

Faridullah Khan Minakhel and Abdur Rashid Khan Minakhel for the Respondents.

Date of hearing: 30th November, 2011.

2012 P Cr. L J 712

[Peshawar]

Before Fazal-i-Haq Abbasi and Mazhar Alam Khan Miankhel, JJ

ABDUL AHAD---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.192 and Murder Reference No.3 of 2010, decided on 14th December, 2011.

Penal Code, (XLV of 1860)---

----Ss. 302(b), 364, 365 & 452---Qatl-e-amd, kidnapping, abduction and house-trespass---Appreciation of evidence---Sentence, reduction in---Misidentification---Delay in lodging F.I. R. ---No previous enmity---Non-conducting of postmortem of the deceased---Variation in the site plan---Motive---Acquittal of co-accused---Accused was nearly related to the complainant and prosecution witnesses, therefore there was no question of misidentification of accused---Both the eye-witnesses charged the accused in their statements recorded before the Trial Court---No ill-will or animosity was suggested to witnesses for false implication of accused; their statements went unchallenged---House of the complainant was situated at a far-flung distance of 13/14 kilometers from the Police Station, therefore, delay in lodging of F.I.R., in circumstances, was of no significance---No previous enmity existed between the parties and due to relationship between them false implication of accused was beyond consideration---Both the eye-witnesses remained consistent in their depositions---Postmortem was not conducted on the request of the legal heirs of the deceased---When the cause of death was apparent, non-conductng of postmortem was not fatal to the prosecution case---Even the unnatural death of the deceased was not disputed by the defence---Initial occurrence of abduction took place in the house of the complainant---Any variation in the site plan, was of no consequence, because in a dramatic situation, and state of panic, no one could remember the minute details, nor photographic view could be given---Even otherwise site plan was not a substantive piece of evidence; and same could not be used to contradict the witnesses, nor they could be confronted with the same in order to discredit the testimony---Motive was alleged in the F.I.R. and was proved in the statements of the complainant and the other eye-witnesses of the occurrence, but same was not put to accused in his statement recorded under S.342, Cr.P.C.---Such factor, could be considered while dealing with the question of sentence---Acquitted co-accused were not charged in F.I.R., but they were charged in the statement of son of the deceased, who was not an eye-witness of the occurrence---Said acquitted co-accused were not charged even in the statements of the eye-witnesses---Acquittal of co-accused, was of no help to the accused, in circumstances---Death sentence awarded to accused was not maintainable as there was . no eye-witness of the murder---Death sentence awarded to accused was converted into imprisonment for life in circumstances.

Ishtiaq Ibrahim for Appellant.

Ikramullah Khan. A.A.-G. for the State.

Zia ur Rehman Tajak for the Complainant.

Date of hearing: 14th December, 2011.

2012 P Cr. LJ734

[Peshawar]

Before Nisar Hussain Khan, J

SHAFQATULLAH KHAN alias SHAUKAT KHAN and 2 others---Petitioners

Versus

JEHAN ZEB KHAN and another---Respondents

Criminal Revision No.32 of 2011, decided on 1st December, 2011.

Criminal Procedure Code (V of 1898)---

----S. 540---Power to summon material witness or examine persons present---Plea raised by accused for the first time during 'cross-examination of prosecution witnesses--- Accused (petitioners), on conclusion of prosecution evidence, filed an application under S.540, Cr. P. C. for summoning of local Grid Station's official along with record, to prove the defence stance that at the relevant time of occurrence, there was load-shedding in the area---Application of accused was dismissed---Validity---Accused, on completion of investigation, filed application for reinvestigation, before Inspector-General of Police after which the case was reinvestigated--- Application for reinvestigation did not bear a single word qua load-shedding in the area and statements of accused under 5.161, Cr.P.C. also did not raise any such plea---Statements of accused's (defence) witnesses produced by accused during reinvestigation revealed that none of them had stated about any load-shedding at the time of the occurrence---One of accused's (defence) witnesses had clearly stated in his statement before the Investigating Officer that on the night of the occurrence, he was watching a cricket match and came out after said match was over and soon thereafter heard fire shots---Two other accused's (defence) witnesses had also made statements in the same strain and all said witnesses belonged to the same area where the occurrence took place, therefore, presumably electric power was available at the time of the occurrence-Accused did not take plea of load-shedding in their application for reinvestigation, rather their own witnesses had stated that they were watching a cricket match at the time of occurrence and it was only after about one and a half year, that accused's counsel put suggestion of load-shedding to prosecution witnesses during their court statements---No justification was available in peculiar circumstances of the case to summon a witness and record, to substantiate plea bf the defence which had been raised for the first time by accused's counsel during cross-examination of the prosecution witnesses, when there existed no such circumstance on the record inkling in that regard---If accused's plea was allowed, theft flood gates of such like applications would break open and in each and every case, the accused would seek summoning of witnesses and record on every hypothetical question put by defence counsel on any prosecution witnesses, which was never the intention of the legislature , behind the enactment of S.540, . Cr. P. C---Revision petition was dismissed in circumstances.

Farooq Khan Sakari for Petitioners.

Faridullah Khan, D.A.-G. and Noor. Zada Khan for Respondents

Date of hearing: 1st December, 2011.

2012 P Cr. L J 844

[Peshawar]

Before Miftah-ud-Din Khan and Qaiser Rashid Khan, JJ

HABIB ULLAH---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.78 of 2011, decided on 27th September, 2011.

Explosive Substances Act (VI of 1908)---

----Ss. 5 & 7---West Pakistan Arms Ordinance (XX of 1965), S.13---Police Order [22 of 2002], Art.18(4)---Making or possession of explosive substance and possessing unlicensed arms---Appreciation of evidence---Sentence, reduction in---Sanction of Government for prosecution of accused which under S.7 of Explosive Substances Act, 1908 was mandatory, having not been exhibited during evidence, conviction of accused under S.5 of the Act, 1908 was not sustainable in the eyes of law---Investigation in the case was conducted by Head Constable, who was not competent to investigate the matter---Neither the report of Bomb Disposal Unit was exhibited nor any question was put to accused regarding the same when his statement under S.342, Cr.P.C. was recorded---Accused, in circumstances, could not be saddled with any liability with an unproved report of Bomb Disposal Unit to which no legal sanctity was attached---Accused had been convicted on the basis of recoveries mentioned in the F.I.R. as well as in the recovery memo, but alleged recovered incriminating material was not put to accused while his statement under S.342, Cr.P.C. was recorded so as to solicit his explanation qua the alleged recoveries made from his person---Provisions of Art. 18(4) of Police Order, 2002 had not been complied with in the case---Impugned conviction and sentence under S.5 of Explosive Substances Act, 1908, were set aside and accused was acquitted of the charge---Prosecution had been able to bring home guilt of accused to the recovery of a Kalashnikov from his possession, his conviction and sentence awarded under S.13 of West Pakistan Arms Ordinance, 1965 was maintained---In view of peculiar circumstances of the case, his sentence was reduced to that already undergone by him---Accused was directed to be set at liberty, in circumstances.

1998 PCr.LJ 1262; 2007 PCr.LJ 89 and 2010 SCMR 1009 rel.

Saifur Rehman Khan for Appellant.

Jehanzeb Ahmad Chughtai for the State.

Date of hearing: 27th September, 2011.

2012 P Cr. L J 873

[Peshawar]

Before Syed Sajjad Hassan Shah and Nisar Hussain Khan, JJ

MUHAMMAD ISMAIL---Petitioner

versus

THE STATE and 4 others---Respondents

Writ Petition No.354 of 2011, decided on 21st November, 2011.

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

----Ss. 22-A(6), 154 & 173--- Constitution of Pakistan, Art.199---Constitutional petition---Powers of Justice of Peace---Scope---Direction of Justice of Peace for registration of case---Initially complaint by complainant against the petitioner was turned down by the Justice of Peace mainly on the ground that petitioner had provided some F.I.Rs. against the complainant, without going into the merits of the case---Said order of Justice of Peace was challenged by complainant in constitutional petition, which petition was allowed and matter was remanded to the Justice of Peace---Said order having not been challenged by the petitioner before the Supreme Court same had attained finality and Justice of Peace directed S.H.O. concerned by impugned order to register case against the petitioner---Counsel for the petitioner did not urge any grievance on the point that Justice of Peace had violated the direction of High Court---Impugned order was in accordance with direction of High Court, except the direction for insertion of specific section of P.P.C., mentioned in the complaint---Objection of counsel for the petitioner qua the absence of an application/complaint to the S.H.O. in written form, was misconceived, as S.22-A(6), Cr.P.C. did not postulate any such command that Justice of Peace would only entertain the complaint when the grievance in written form to the S.H.O. concerned, was not redressed by registration of F.I.R.---Not imperative for the informant for any cognizable offence to convey the information of such offence in written form to the S.H.O.; it was, however, legal obligation of S.H.O. to register F.I.R. in compliance with the command of S.154, Cr.P.C. on any information of cognizable offence---Law did not require that DPO must be arrayed in panel of respondents, while submitting a complaint before Justice of Peace, and no format was provided in the relevant provision of statute as well---While dealing with the complaint of non-registration of criminal case, Justice of Peace was obliged to consider the substance and not the form of complaint.

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

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

----Ss. 22-A(6), 154 & 173---Constitution of Pakistan, Art.199---Constitutional petition---Registration of case---Direction of Justice of Peace for inserting specific section of law in the First Report---Validity---No powers had been vested with the Justice of Peace to pass order for insertion of appropriate/specific section of law in the F.I.R.---Any such complaint in that regard, acceded by Justice of Peace, would touch the merits of the case at premature stage---Illaqa Magistrate, being over all incharge of a criminal case, even during the investigation, had the opportunities from time to time to go through the record---Magistrate could direct the Investigating Officer to add or delete any section of penal laws; on submission of report under S.173, Cr.P.C., while dealing with case, he could pass any such direction---Trial Court was not bound by the ipse dixit of Police, but could frame the charge under the penal provision, which was attracted/applicable in the light of allegation and available evidence; and could rectify the mistake of Police, which had gone unnoticed by the Magistrate.

Anwar-ul-Haq for Petitioner.

Pir Liaqat Ali Shah for Respondents.

Date of hearing: 21st November, 2011.

2012 P Cr. L J 886

[Peshawar]

Before Miftah ud Din Khan and Mian Fasih-ul Mulk, JJ

SAID ZAREEN and 2 others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.654 of 2010, decided on 11th January, 2012.

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

----S. 9(c)---Possession and trafficking of narcotics---Appreciation of evidence----Benefit of doubt---Contradictions in statements of witnesses---Delay in sending samples---Failure to exhibit recovery memo on record---Trial Court had convicted the appellants under S.9(c) of the Control of Narcotic Substances Act, 1997---Validity---Prosecution witnesses had contradicted each other on material aspects of the case---F.I.R. stated that bus was brought to police station where it was searched and alleged narcotics were recovered from its secret cavities, but investigating officer had mentioned that the local police had already searched the vehicle before it was brought to the police station---Complainant (SHO) negated contents of his report in his cross-examination by stating that he had detected and searched out the contraband on the motorway and thereafter vehicle was shifted to police station---Contents of F.I.R. revealed that bus in question was coming from place 'B', but investigating officer had stated that bus was travelling from place 'M' to 'K'---Investigating officer had admitted that, in the two site plans prepared by him, he had not shown the presence of the appellants, and that marginal witnesses to the recovery memo in their statements under S.161, Cr.P.C. neither disclosed the names of the appellants nor showed the factum of their arrest---Prosecution witness had stated that there was no mention of arrest of appellants in the recovery memo and showed his ignorance with regard to the fact whether bus was searched on the spot or not---Complainant (SHO) had admitted that nothing incriminating had been recovered from immediate possession of the appellants nor any registration or licence in the names of the appellants were recovered---Neither alleged contraband was produced at trial nor its destruction certificate was brought on file---Samples were sent to Forensic Science Laboratory (FSL) after a delay of eighteen (18) days but nothing was brought on file to show whether the samples were in safe custody before being sent to the laboratory---Recovery memo had not been exhibited on record---Prosecution had failed to prove charges against appellants beyond reasonable doubt---Conviction and sentences of appellants were set aside and they were acquitted of the charges---Appeal was allowed.

Muhammad Arshad Naseem v. The State 2004 PCr.LJ 371 and Agha Qais v. The State 2009 PCr.LJ 1334 rel.

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

----Ss. 9(c) & 33(2)---Possession and trafficking of narcotics---Appreciation of evidence---Benefit of doubt--- Vehicle of appellant had been confiscated on the order of the Trial Court---Validity---Prosecution had failed to show conscious knowledge of the appellant and Trial Court had neither heard the appellant nor provided him an opportunity of producing evidence, as required under S.33(2) of Control of Narcotic Substances Act 1997---Impugned order to the extent of the confiscation of the vehicle was set aside and vehicle in question was ordered to be returned to its lawful owner---Appeal was allowed.

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

----Art. 2(c)(ii)---Documents produced for inspection of court---Scope---Truth of the contents of a document cannot be proved by merely producing the same for inspection of the court within the purview of Art.2(c)(ii) of the Qanun-e-Shahadat 1984, unless same is proved and exhibited at trial in accordance with the law.

Muhammad Arshad Naseem v. The State 2004 PCr.LJ 371 rel.

Muhammad Hayat, Ziaur Rehman Tajik and Fida Muhammad for Appellants.

Matiullah Baloch for the State.

Date of hearing: 11th January, 2012.

2012 P Cr. L J 903

[Peshawar]

Before Miftah ud Din Khan and Waqar Ahmad Seth, JJ

THE STATE through Prosecutor-General Accountability---Appellant

versus

ZAKIR ULLAH---Respondent

Ehtesab Criminal Appeal No. 38 of 2011, decided on 25th January, 2012.

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

----Ss. 9, 10 & 32---Corruption and corrupt practices---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Allegation against accused (respondent) was that during his service he had acquired movable and immovable assets in his own name and in the name of his spouse, dependents and benamidars, which were disproportionate to his known means of income---Trial Court acquitted the accused from charges levelled against him---Validity---Trial Court had appraised the entire evidence in its true perspective and benefit of doubt had been extended to accused, which was supported by material on record---Trial Court had dealt with the matter in a proper and reasonable manner; had not misread the evidence or committed any illegality or irregularity and referred to each and every document on record and discussed the same in a legal manner and drew fair conclusions---Acquittal order of Trial Court was neither perverse nor illegal and warranted no interference---Appeal against acquittal was dismissed accordingly.

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

----S. 32--- Appeal against acquittal--- Appraisal of evidence---Principles---Evidence in cases of acquittal and conviction is appraised in different perspectives; in appeal against acquittal liberty of person is involved and when anything to the contrary has not been brought on record, then acquittal order cannot be interfered with by the court.

Azeem Dad, Prosecutor NAB for Appellant.

2012 P Cr. L J 912

[Peshawar]

Before Miftah ud Din Khan and Mian Fasih-ul Mulk, JJ

GUL YOUSAF---Petitioner

versus

AMJID ALI, POLITICAL AGENT MOHMAND AGENCY GHALANI and 3 others---Respondents

Writ Petition No.3253 of 2010, decided on 12th January, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 345, 173 & 22-A---Constitution of Pakistan, Art 199---Constitutional petition---Stoppage of further proceedings on basis of police report---Compromise between principal accused and legal heirs of deceased---Petitioner's brother (deceased) had been murdered and F.I.R. was registered--- Deceased's son filed an application under S.22-A, Cr.P.C. before Justice of Peace for lodging an F.I.R. against respondent, which was accepted and another F.I.R. was registered for the same incident---On respondent's application, a special investigation team conducted an inquiry, wherein two other persons were found to be actual perpetrators and respondent was declared as innocent---SHO, in view of the investigation findings, submitted his final report under S.173, Cr.P.C. on the basis of which Magistrate stopped further proceedings in the case---Validity---Two F.I.Rs. were registered with regard to the same occurrence and an inquiry was also conducted by a special investigating team, which found the respondent innocent, hence the Magistrate seemed to have committed no illegality in stopping further proceedings in the F.I.R. involving the respondent---All the legal heirs of the deceased had entered into compromise with the principle accused of the case and they had declared respondent as innocent, in which circumstances it was not proper for High Court to interfere with impugned report of police and order of Magistrate---Petitioner had failed to establish as to how he was an aggrieved person within the meaning of Art.199 of the Constitution, when no right of his was affected as the legal heirs of the deceased had already compromised the matter with the accused---Constitutional petition was dismissed in circumstances.

Imtiazur Rahman for Applicant.

Zahoorul Haq and Abdul Latif Afridi for Respondents.

Naveed Akhtar, A.A.-G. for the State.

Date of hearing: 12th January, 2012.

2012 P Cr. L J 923

[Peshawar]

Before Qaiser Rashid Khan, J

RIYASAT---Petitioner

versus

THE STATE and another---Respondents

Criminal Miscellaneous No.359 of 2011, decided on 19th August, 2011.

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

----Ss. 497(2) & 196---Penal Code (XLV of 1860), Ss.295-A & 298-A---Deliberation and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs---Use of derogatory remarks etc. in respect of Holy Personages---Bail, grant of---Further inquiry---Was yet to be ascertained as to who had committed such an abominable act and that too right at the door step of the house of accused facing a street/thoroughfare; and that who informed the complainant about the said act---Case of further inquiry had been made out, in circumstances---Offence under S.295-A, P.P.C. was not merely an offence against a particular individual, but for all intents and purposes it was against the State---Procedure required that a court could only take cognizance of such offence, if the complaint was made by order of the authority from the Federal Government or the Provincial Government---If same was not done within the mandate of S.196, Cr.P.C., such was not a curable irregularity---No complaint under S.295-A, P.P.C. could be lodged by a person directly, it ought to be made either by the Federal Government or the Provincial Government; or for that matter any person authorized on their behalf to lodge an F.I.R. under the said section---In the present case such qualifications of the complainant who lodged the complaint directly, were missing---Section 298-A, P.P.C. being bailable, question of guilt or otherwise of accused, would require further inquiry, entitling accused to the concession of bail---Accused was admitted to bail, in circumstances.

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

----S. 196---Prosecution for offences against the State---Provisions of S.196, Cr.P.C., were mandatory in nature in essence, and not directory---Where the mandatory procedure for the exercise of jurisdiction was not fulfilled, then the entire proceedings, that ensued pursuant thereto, would become coram non judice, illegal and without jurisdiction.

Kamran Gul for Petitioner.

Abdul Wahid for the State.

Jamal Ali for the Complainant.

Date of hearing: 19th August, 2011.

2012 P Cr. L J 946

[Peshawar]

Before Khalid Mehmood, J

AMIN GULGEE and another---Petitioners

versus

SHABBIR KHAN and 2 others---Respondents

Constitutional Petition No.169 of 2010, decided on 23rd November, 2011.

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

----Ss. 145 & 146---Constitution of Pakistan, Art. 199---Constitutional petition---Dispute concerning land likely to cause breach of peace---Petitioners were legal owners of the suit property which had been given on lease to their predecessor-in-interest---Petitioners sent an application to concerned Development Authority (Authority) to look after the property as they resided in a different city and were unable to look after the same and similar applications were sent to concerned police officials, who instead of looking after the property submitted an application before the Magistrate for sealing the suit property, as some persons wanted to take over possession of the property as well as expensive articles therein---Magistrate, without any inquiry and examining the original application moved by petitioners, ordered to prepare inventory of entire articles and thereafter to seal the property---Magistrate under Ss.145 and 146, Cr.P.C, 1898, could only attach disputed property when after inquiry he was unable to satisfy himself as to which of the parties was in possession of disputed property but Magistrate neither conducted any inquiry nor satisfied himself regarding any apprehension of breach of peace over disputed property and without giving any reason directed sealing of the property---Respondent on basis of a stamp paper allegedly executed by petitioners' predecessor-in-interest, claimed to be owner in possession of suit property and prayed for handing over the same but was turned down by Magistrate, aggrieved of which he filed revision petition before the Court below after a lapse of four months, without arraying the petitioners---Court below without appreciating the facts and legal aspect of the case and without realizing that revision petition was barred by time, ordered de-sealing of the disputed property and directed bailiff to hand over possession of property in favour of respondent---Concerned Development Authority had admitted that suit property was still ownership of the petitioners but after the death of their predecessor-in-interest same had not been transferred in the petitioners' name---Court below did not appreciate the fact that alleged agreement deed on stamp paper was executed outside the district, where property was situated and no reference had been given to the application moved by petitioners to the Development Authority for looking after their property---Court below by overlooking limitation period for revision petition and neglecting to array petitioners as a party had unilaterally ordered handing over possession of property to respondent, which amounted to grave miscarriage of justice---Constitutional petition was allowed and impugned orders of court below and Development Authority were set aside and the Authority was directed to look after the disputed property in the light of the application submitted by the petitioners.

Qazi Gran v. Muhammad Jan and another PLD 1996 SC 541 ref.

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

----S. 145--- Dispute concerning land likely to cause breach of peace---Scope---Judicial Magistrate can only invoke the jurisdiction for such like case when there is complaint filed under S. 145, Cr.P.C.---Complaint under S. 145, Cr.P.C. can only be entertained if there exists any dispute regarding the immovable property wherein there is apprehension of breach of peace.

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

----S. 146---Power to attach subject of dispute---Scope---Magistrate can only attach the disputed property when Magistrate after enquiry is unable to satisfy himself as to which of them was then in possession of disputed property.

S. Anzar Iqbal for Petitioners.

Muhammad Ali Khan and Qazi M. Ghazanffar Khan for Respondents.

Date of hearing: 23rd November, 2011.

2012 P Cr. L J 959

[Peshawar]

Before Fazal-i-Haq Abbasi and

Mazhar Alam Khan Miankhel, JJ

SHER HAKEEM---Appellant

versus

THE STATE and another---Respondents

Criminal Appeal No.770 of 2010, decided on 8th December, 2011.

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

----S. 302---West Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-e-amd, possessing unlicensed arms---Appreciation of evidence---Accused was arrested on the day of occurrence and weapon of offence i.e. shotgun was also recovered from him---Accused made the confessional statement and Judicial Magistrate had stated that accused made confession voluntarily before him and same was not result of inducement, promise or threat---Accused in his statement under S.340(2), Cr.P.C. had stated that certain omissions in his statement were made by the Judicial Magistrate, but nothing in that regard was suggested to him nor he was cross-examined on the said omission---Confessional statement was not retracted at any stage---Motive for the occurrence was proved by prosecution witnesses---Said witnesses were not cross-examined on material points---Weakness or absence of motive, or failure to prove the same, could not be termed as fatal to the prosecution case---Delay in sending the crime articles to the laboratory, was of no consequence in absence of any suggestion of fabrication, manipulation or tampering with the same---Plea of grave and sudden provocation was neither advanced by accused in his confessional statement, nor at the time of formal charge---Conduct of accused at the time of occurrence remained so grave and desperate that he could not claim any leniency on the pretext of grave and sudden provocation, which was not even palpable from the evidence on record---Multiple fire-arm injuries were found on the dead bodies of the deceased---Ocular account furnished by prosecution witnesses, was supported by the medical evidence, recoveries, positive report of the experts, motive and confessional statement of accused---Punishment as Qisas under S.302(a), P.P.C., though was not warranted under S.302(b), P.P.C., but S.302(b), P.P.C. had also provided the punishment of death as Tazir---Accused who had committed the brutal murders of two innocent persons, was not entitled to any leniency, and deserved normal penalty as Tazir under S.302(b), P.P.C.---Appeal of accused was dismissed and murder reference was answered in affirmative.

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

----Ss. 304, 306, 307 & 308---Qatl-e-amd liable to qisas---Sections 304, 306, 307 & 308, P.P.C.---Scope---Provisions of Ss.304, 306, 307 & 308, P.P.C. were confined only to the cases liable to qisas and not for the punishment as Tazir---Extention of benefit of said sections would amount to grant of licence of killing of innocent persons by their Walis.

Faqir Ullah v. Khalil uz Zaman 1999 SCMR 2203 rel.

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

----S. 302---West Pakistan Arms Ordinance (XX of 1965), S. 13---Criminal Procedure Code (V of 1898), S. 417(2-A)---Qatl-e-amd; possessing unlicensed arms---Appeal against acquittal---Except presence of co-accused at the spot, no overt act was attributed to them, nor any instigation or abetment on their part had been proved---Co-accused, in circumstances, were rightly acquitted by the Trial Court---Appeal against acquittal of said co-accused, was dismissed, in circumstances.

Ghulam Mohyuddin for Appellant.

Ikramullah Khan, A.A.-G. for the State.

Shakeel Ahmad for the Complainant.

Date of hearing: 8th December, 2012.

2012 P Cr. L J 969

[Peshawar]

Before Nisar Hussain Khan, J

AFSAR ALI---Petitioner

Versus

SUPERINTENDENT POLICE (INVESTIGATION) DISTRICT BANNU and 3 others---Respondents

Criminal Miscellaneous Quashment Petition No.5-B of 2011, decided on 27th January, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 154, 496 & 561-A---Penal Code (XLV of 1860), Ss.384/506/ 166---Extortion, criminal intimidation, public servant disobeying law with intent to cause injury to any person--- Police official (accused) was released on personal bond---Petition for quashing of personal bond---Accused (police official/respondent) had allegedly snatched money from the complainant while conducting his personal search---Complainant (petitioner) submitted application under Ss.22-A and 22-B, Cr.P.C. on which Justice of Peace directed SHO concerned for registration of case against accused---Accused challenged order of Justice of Peace before High Court but same was dismissed---F.I.R. was registered against accused , case was investigated and report for cancellation of the case was filed before Trial Court twice, but on both the occasions same were dismissed---Officer in charge of police station released the accused on his personal bond---Validity---During investigation of case, investigating officer had recorded the statements of shopkeepers situated around the alleged place of occurrence before submitting application for cancellation of case---Complainant failed to produce any evidence to substantiate his allegations---Investigating Officer had placed on record two F.I.Rs. against complainant according to which he had in the past allegedly smuggled food items---Statement of one of the prosecution witnesses, who was also uncle of the complainant, was silent with regard to the occurrence, whereas statement of other prosecution witness was hearsay evidence---Offences with which accused was charged were non-cognizable and bailable, in light of which case came within ambit of S.496, Cr.P.C., which imposed obligation on the court as well as Officer in charge of police, to release the accused, on bail and may also discharge him on executing bond, without surety, if it thought fit---Officer in charge of police had committed no illegality, while releasing the accused, on his personal bond, when accused was a government servant and there was no possibility of his abscondence---Petition for quashing personal bond was dismissed, in circumstances.

PLD 2006 Pesh. 165 and PLD 2008 Pesh. 63 distinguished.

Anwarul Haq for Petitioner.

Faridullah Khan, D.A.-G. and Muhammad Anwar Khan Maidad Khel for Respondents.

Date of hearing: 27th January, 2012.

2012 P Cr. L J 981

[Peshawar]

Before Syed Sajjad Hassan Shah and Fazal-i-Haq Abbasi, JJ

MUHAMMAD AMEER KHAN---Petitioner

Versus

KHISRO PERVEZ and 2 others---Respondents

Writ Petition No.2297 of 2011, decided on 4th October, 2011.

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

----Ss. 22-A, 155 & 190---Penal Code (XLV of 1860), Ss.162/163/164---Constitution of Pakistan, Art 199---Constitutional petition---Quashing of F.I.R.---Allegation against Circle Girdawar accepting money for the outcome of a case decided by Civil Judge---Civil Judge had sent a complaint/allegation to District and Sessions Judge stating that accused (Girdawar) had made an allegation against her of accepting money to decide the outcome of a case---Sessions Judge/Justice of Peace treated the said complaint under S.22-A, Cr.P.C. and directed Station House Officer to register a case against the accused under Ss.162, 163 and 164, P.P.C.---Contention of accused was that offences were not cognizable, therefore, Justice of Peace had no powers to direct registration of case---Validity---Complaint/allegation sent by Civil Judge, appeared to have been sent under S.190, Cr.P.C. but Sessions Judge treated the same under S.22-A, Cr.P.C. and issued directions for registration of case---Charges against the accused were very serious in nature because he by his acts, omissions and commission not only obtained gratification in the name of a judicial officer but also tried to lower the institution of judiciary in the eyes of general public---High Court was not required to stifle the prosecution case at the initial stage, if prima facie an offence had been committed and ordinary course of trial should not be allowed to be deflected by resorting to constitutional jurisdiction of the High Court---Constitutional petition was dismissed, in circumstances.

PLD 2007 SC 539 and 2006 SCMR 276 rel.

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

----S. 22-A(6)---Powers conferred under S.22-A(6), Cr.P.C. on Ex-officio Justice of Peace---Scope and extent---Ex-officio Justice of Peace under S.22-A(6), Cr.P.C. was to examine whether the information disclosed by the applicant did or did not constitute a cognizable offence and if it did, then to direct the concerned S.H.O. to record F.I.R. without going into the veracity of the information in question, and no more.

PLD 2007 SC 539 quoted.

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

----S. 22-A(6)---Registration of case involving non-cognizable offence---Scope---No bar exists on issuance of directions by Justice of Peace to register a case involving non-cognizable offence but in such a situation, the police authorities can investigate the case only after getting an order from a Magistrate of First or Second Class having power to try such case or send the same for trial to the Sessions Court.

Nasir Mahmood for Petitioner.

2012 P Cr. L J 991

[Peshawar]

Before Khalid Mehmood, J

KHALID MEHMOOD---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.67 of 2011, decided on 6th February, 2012.

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

----Ss. 419/420/471---Cheating by personation, cheating and dishonestly inducing delivery of property, using as genuine a forged document---Appreciation of evidence---Benefit of doubt---Accused (appellant) while posted as Forest Guard was alleged to have secretly taken out two receipts from the challan book issued to the Forester, and by making wrong entries in the said receipts, received money from two truck drivers as illegal gratification and released their trucks which were loaded with illegally cut timber---Trial court had convicted the appellant under Ss.419, 420 and 471, P.P.C.---Validity---F.I.R. did not mention the date on which the alleged incident took place and same was lodged after an unexplained delay of about six months and nineteen days---Receipts allegedly used for compounding offences pertaining to illegally cut wood were photocopies and not originals and prosecution had not been able to place on record the original receipts---Prosecution had not sent the receipts to hand writing expert for comparison in order to ascertain as to who had scribed and signed them---Accused, being a Forest Guard was not competent to compound such an offence and challan book was allegedly in the custody of the Forester, who was in charge of the forest block from where receipts were stolen---Prosecution witness, during his cross-examination had stated that both Forester and accused were responsible for the loss caused to the Government exchequer, in the light of which there was no justification for the prosecution to have left out Forester and involved the accused for the crime---Forester had stated that receipts were stolen from the challan book from his custody, but prosecution failed to bring on record anything regarding stealing or misplacing of the receipts, and moreover, no report before any forum had been lodged---Accused was serving in a forest block which was different from the block from where receipts were stolen---Forester had taken charge of the forest block on the very day of the occurrence, in view of which the question was as to how he came to know that receipts were stolen from his office---Prosecution had failed to connect the accused with the commission of the offence and did not prove its case beyond any shadow of doubt---Appeal of accused was allowed, his conviction and sentence recorded by Trial Court was set aside and he was acquitted of the charge.

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

----Ss. 419/420/471--- Cheating by personation, cheating and dishonestly inducing delivery of property, using as genuine a forged document---Appreciation of evidence---Benefit of doubt---Accused (appellant) was alleged to have secretly taken out two receipts from the challan book issued to Forester and by making wrong entries in the said receipts, received money from two truck drivers as illegal gratification and released their trucks which were loaded with illegally cut timber---Trial court had convicted the appellant under Ss.419, 420 and 471, P.P.C. and timber merchants, who were the real beneficiaries of the whole incident had not been made accused in the case, despite having clearly confessed their guilt before the Trial Court during their examination---High Court deprecated such action of the Trial Court and observed that Investigating Officer had not conducted fair investigation and real culprits, the timber traffickers by producing fictitious receipts, escaped the clutches of law---Directions were issued by High Court to send a copy of the present judgment to the Inspector-General Police and Director, Anti-Corruption of the Province for inquiry against the Investigating Officer, who did not charge the real culprits and beneficiaries of the whole incident and caused loss to the Government exchequer.

Masoodur Rehman Tanoli for Appellant.

M. Nawaz Khan Swati for the State.

Date of hearing: 6th February, 2012.

2012 P Cr. L J 1018

[Peshawar]

Before Qaiser Rashid Khan, J

Haji HUKMAT KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal M.B.C. No.304 of 2011, decided on 20th January, 2012.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 419, 427, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5(2)---Cheating by personation, mischief causing damage to the amount of fifty rupees, forgery for purpose of cheating, using as genuine a forged document---Application for cancellation of bail---Complainant had recorded his statement before Trial Court and expressed no objection over the release of his accused-brother and co-accused on bail on the ground of compromise, and all the accused were accordingly released on bail---Subsequently, when compromise could not materialize, the complainant sought cancellation of bail of all the accused, but could not succeed as Trial Court dismissed his application for cancellation of bail---Validity---Accused had been on bail for over two years and non-settling of dispute between the complainant and his accused-brother was not a good ground to cancel the bail granted by a competent court of law---Complainant could not be left with the discretion and prerogative to make a request before a court for having no objection over the release of the accused on bail, and later at another time of his own choice make a request to recall the bail granting order---Application for cancellation of bail was accordingly dismissed.

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

----Ss. 497 & 497(5)---Penal Code (XLV of 1860), Ss. 419, 427, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5(2)---Bail, cancellation of---Principles---Principles for grant of bail and cancellation of bail are quite different from each other---Once bail is granted by the a competent court of law, then strong and exceptional grounds, i.e. misuse of the concession of bail and tampering with evidence etc. are essentially required to recall the bail.

Sanaullah Khan Gandapur for Petitioner.

Muhammad Younis Thaheem for Respondents.

Khan Wali Khan, A.A.-G. for the State.

Date of hearing: 20th January, 2012.

2012 P Cr. L J 1046

[Peshawar]

Before Attaullah Khan, J

ZAR MUHAMMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.20 of 2012, decided on 20th January, 2012.

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---Recovery of narcotics from an abandoned truck---Delayed arrest---Non-conducting of identification parade---F.I.R. disclosed that 200 kgs. of charas was recovered from an abandoned truck and police informer had stated that the truck was owned by the accused---Accused was arrested twelve days after the registration of the case and nothing was available on record to determine as to who had witnessed the accused with the truck or the narcotics recovered from it---Accused was implicated on mere information of the police informer without any cogent proof and it was yet to be determined whether accused was driving the truck or was owner of the same---Nothing on record revealed that narcotics were recovered from the possession of accused and no identification parade had been conducted to establish his guilt---No evidence was available to connect the accused with the recovered narcotics, therefore, his bail petition was allowed and he was admitted to bail.

2001 PCr.LJ 1756 and 2006 MLD 154 rel.

Q. Intikhab Ahmad for Petitioner.

Naveed Akhtar, A.A.-G. for the State.

Date of hearing: 20th January, 2012.

2012 P Cr. L J 1086

[Peshawar]

Before Attaullah Khan, J

BAKHT ZAMIN and 4 others---Petitioners

versus

LAL ZADA and 4 others---Respondents

Criminal Miscellaneous Quashment Petition No.163 of 2011, decided on 10th February, 2012.

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

----Ss. 145 & 561-A--- Dispute concerning land likely to cause breach of peace---Quashment of proceedings---Magistrate had dismissed application of complainant (respondents) filed under S.145, Cr.P.C., but same was accepted by court below in revision, which ordered attachment of disputed property for an indefinite period---Validity---Patwari Halqa in his cross-examination had admitted that the complainants were not recorded in the Khasra Girdawari to be in possession of the disputed property, and such admission was fully supported by the Revenue record---Court for a complaint filed under S.145, Cr.P.C., had to consider possession of disputed property and not its ownership---Complainant while deposing as witness failed to point out the Khasra number which had been forcibly taken into possession by the petitioners and had failed to prove the factum of apprehension of danger to peace and tranquillity, which was likely to happen as a result of forcible possession enacted by the petitioners---Quashment petition was allowed, order of court below was set aside, and order of Magistrate was maintained.

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

----S. 145--- Dispute concerning land likely to cause breach of peace--- Scope--- For a complaint filed under S.145, Cr.P.C., Court had to consider possession of disputed property and not its ownership.

Fazal-e-Haq Kohidaman for Petitioners.

Nasir Khan Khalil and Zahid Yousaf, A.A.-G. for the State.

2012 P Cr. L J 1119

[Peshawar]

Before Waqar Ahmad Seth, J

AHMAD ALI JAN---Applicant

versus

IRFAN and another---Respondents

Criminal Miscellaneous Bail Cancellation Application No.1802 of 2010, decided on 16th March, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(5)--- Penal Code (XLV of 1860), Ss. 302/324/337-F(vi)/34---Qatl-e-amd, ghayr-jaifah munaqqillah, attempt to commit qatl-e-amd, common intention---Application for cancellation of bail---Bail granting order and cancellation of bail were to be dealt with different yardsticks---Accused, in the present case, had been on bail since the last about fifteen (15) months and since then there was not a single document showing that accused had misused the concession of bail, nor there was anything on record which showed that some new facts and circumstances existed which could implicate the accused---One of the co-accused was on bail, while the other had been acquitted by the court below under S.265-K, Cr.P.C., and accused was similarly charged as the said co-accused--- Accused had remained an absconder but abscondence itself could not be a ground for conviction---Complainant had contended that no notice was given to him for the hearing of grant of bail proceedings, but bail granting order revealed that complainant was issued notice and he remained absent---Accused was not required by the prosecution for further investigation, challan against him was complete and he had been granted bail by a competent court of law---High Court found no reason to recall the bail granting order, therefore, bail cancellation application was dismissed.

Khaled Rehman for Petitioner.

Atiqur Rehman and Qazi Baber Irshad for Respondents.

Ms. Abida Safdar for the State.

2012 P Cr. L J 1127

[Peshawar]

Before Attaullah Khan and Azmatullah Malik, JJ

NASIR ALI and another---Appellants

versus

SAMI ULLAH and another---Respondents

Criminal Appeal No.876 of 2010, decided on 21st February, 2012.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Qatl-e-amd, common intention---Appreciation of evidence---Trial Court based the conviction of accused persons on the identification parade and recovery of Kalashnikov from one of the accused persons---Complainant who claimed to be an eye-witness, while reporting the matter regarding the occurrence charged two unknown persons without giving their ages, complexion, features and height etc., but simply stated that he could identify them in the identification parade---Identification parade in the case was held with delay of nine days---Judicial Magistrate, while conducting identification parade, arrayed other persons besides the accused persons and asked the complainant to identify accused---Such exercise was repeated thrice and same six persons were mixed with accused persons again and again for the purpose of identification---Entire exercise of conducting identification parade in such a manner was a complete departure from the established practice and law as well---Mere positive report in respect of Kalashnikov allegedly recovered from accused, was of no help to the prosecution when the very recovery had been disbelieved in another case against accused in which he was acquitted---Kalashnikov in question was dispatched with considerable delay without any plausible explanation---Such delay would cast doubt on the veracity of the prosecution evidence---Charge against accused person, appeared to be an offshoot of an afterthought---Even if entries made in the site plan were ignored holding that it was not a substantive piece of evidence, yet without specifying the outward appearance of accused persons in the F.I.R., had thrown doubt in their identification---In absence of any strong corroborative evidence, it would not be in accord with safe administration of justice to maintain the conviction and sentence of accused---Unconformable contradictions in the statements of prosecution witnesses, further deepened the case against the prosecution version---In view of said quality and quantity of the evidence, it could not be said that findings of conviction of the Trial Court were based on proper appreciation of evidence---Conviction and sentence recorded against accused persons by the Trial Court, were set aside, they were acquitted and set free, in circumstances.

Lal Pasand v. The State PLD 1981 SC 142; Bacha Zeb v. The State 2010 SCMR 1189; Maula Dad alias Maulu and others v. Emperor AIR 1925 Lah. 426 and Jehangir v. Nazar Farid and another 2002 SCMR 1986 rel.

Barrister Zahoorul-Haq for Appellants.

Matiullah Baloch for the State.

Nek Nawaz Khan and Eid Muhammad Khattak for Respondents.

2012 P Cr. L J 1139

[Peshawar]

Before Miftahud Din Khan and Mian Fasihul Mulk, JJ

IQBAL KHAN and 7 others---Appellants

versus

INAYAT ULLAH and another---Respondents

Criminal Appeal No.381 of 2009, decided on 8th February, 2012.

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

----Ss. 302(b)/324/148/149---Qatl-e-amd, attempt to commit qatl-e-amd, rioting and common object---Appreciation of evidence---Benefit of doubt---Occurrence was disclosed to be the result of the act of accused party to restrain the complainant party from ploughing, but its background had not been explained; in such circumstances, it could not be said with certainty that accused party was the aggressor---Prosecution's case was not that after the incident many people had gathered on the place of occurrence so as to eliminate the possibility of non-recovery of any empty from the spot---Doubt was created that despite sufficient fire shots, not a single empty was recovered from the spot---Presumption would be that neither heavy firing had taken place, nor the occurrence had occurred in the manner as disclosed by the complainant side---Injuries of a prosecution witness would only indicate his presence at the spot and not his credibility and truthfulness---Eye-witness had not specifically pin-pointed any accused responsible for commission of the act---Question as to whose firing hit the deceased and whose blows injured the other witnesses was not certain---Site plan, medical evidence and motive, did not corroborate the version of prosecution---Charge for an offence committed as a member of an unlawful assembly was different from the charge for an offence committed as a member of such assembly---Prosecution witnesses had themselves admitted the incident to be a free fight---Not only the aggression of accused party could not be assumed to be true, but the question of common object would also not arise---When situation would lead to a free fight between the parties, one could not be definite that as to whether it was the accused side who initiated the episode, or they had exceeded their right of self-defence, particularly when the deceased had received only one firearm injury---Conduct of complainant party to charge eight persons for one single firearm injury, and one injury each on the person of alleged eye-witnesses, also reflected their mala fide intention of throwing the net so wide, to rope in the whole family---Motive of dispute over property though was asserted, but not substantiated through any cogent evidence---Prosecution case, having remained shrouded in mystery, accused could not be refused the benefit of doubt---Conviction and sentences awarded to accused by the Trial Court, were set aside and they were acquitted of the charge and were set free, in circumstances.

Amin Ali and another v. The State 2011 SCMR 323 and Saeed Muhammad v. The State 2007 SCMR 203 rel.

(b) Criminal trial---

----When two interpretations of evidence were possible, the one favouring accused was to be taken into consideration.

Khawaja Mohd. for Petitioner.

Wahidullah for the State.

M. Zahoorul Haq for the Complainant.

2012 P Cr. L J 1151

[Peshawar]

Before Miftahud Din Khan and Mian Fasihul Mulk, JJ

KHURSHEED KHAN---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.351 of 2011, decided on 22nd February, 2012.

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

----S. 9(c) & 48---Possession of narcotics---Appreciation of evidence---Case of two versions---Scope---Contention of accused that he had a monetary dispute with one of the persons who was present in the vehicle with him and was prey to the ill design of the said person, against whom a narcotic case was pending and with whom Anti-Narcotic Force staff had joined hands---Validity---Two prosecution witnesses had admitted in their statements that no recovery was made from the personal possession of the accused---Driver of the vehicle from which narcotics were recovered, was let free along with the vehicle in question---No evidence on record existed to establish that accused was either owner of the vehicle or the narcotics were recovered from his personal possession---Accused had some monetary dispute with one of the arrested persons present in the vehicle, who had been previously involved in a narcotics case---Driver of the vehicle had been abandoned by the prosecution being not traceable, but said driver produced an attendance chit in court, handed over to him by the police, which made it clear that he was duly present in his house and not untraceable--- Said driver was the principal witness for the prosecution but he was not produced at trial without any convincing reason, and instead he was produced by the defence and shattered the prosecution story in his statement---No evidence existed to suggest that accused was previously involved or convicted in cases of similar nature and his mere presence in the vehicle at the relevant time would not be sufficient to condemn him for the alleged crime---Case had two versions; one of the prosecution and the other of the accused, and wherever there were two versions and the version set-up by the defence was probable, the court would invariably incline to follow the defence version---Prosecution had failed to connect accused with the commission of the crime---Appeal was accepted, judgment of Trial Court was set aside and accused was acquitted of the charge.

Qaisarullah and others v. The State 2009 SCMR 579 rel.

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

----Ss. 9(c) & 48---Possession of narcotics---Appreciation of evidence---Case of two versions---Scope---Wherever there were two versions; one of the prosecution and the other of the accused, and the version set-up by the defence was probable, the court would invariably incline to follow the defence version.

Qaisarullah and others v. The State 2009 SCMR 579 rel.

Noor Alam Khan for Appellant.

Syed Rehman for the State.

2012 P Cr. L J 1287

[Peshawar]

Before Nisar Hussain Khan and Qaiser Rashid Khan, JJ

HAFEEZULLAH YAMEEN---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.4-B and Criminal Revision No.2-B of 2009, decided on 17th February, 2012.

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

----S. 302(b)/34---Qatl-e-amd, common intention---Appreciation of evidence---Benefit of doubt---Nobody had seen the occurrence, despite the fact that the place of occurrence was at a distance of 200 paces from the house of complainant---Complainant had stated that he was informed by the local kids, about the occurrence, but neither those kids had been examined by the Investigating Officer nor had been produced before the court---Complainant had also not disclosed in his first report as to what were the features and body structure of assailants, disclosed by those kids---Report had reflected that even those kids had not seen the assailants---Presence of complainant at home at the relevant time was also doubtful---Lodging of report with a delay of 4 hours and 5 minutes, had further strengthened the suspicion that complainant was not at home at the time of occurrence---Conduct of prosecution witnesses was also suspicious and their presence at the spot, was doubtful---One of the prosecution witnesses had been abandoned, while other belonged to another village---As to how and why said witness was present at or near the place of occurrence, was another question which remained unanswered in prosecution evidence---Statements of witnesses could not be relied upon in circumstances, particularly when report was also delayed for about four hours---Accused was not personally known to the witness---No identification parade was held---Weak, shaky and tainted evidence could not be relied and acted upon for recording conviction in an offence entailing capital punishment---Prosecution had failed to prove the alleged motive through cogent, convincing and reliable evidence---Evidence of recoveries, post-mortem of the deceased and the site plan, were corroborative in nature, which could not be made basis for conviction, when the ocular account was disbelieved---Impugned judgment of the Trial Court was set aside and by extending benefit of doubt, accused was acquitted of the charge and was set free, in circumstances.

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

----Art. 22---Penal Code (XLV of 1860), S.302(b)/34---Qatl-e-amd---Identification parade---When one of the witnesses had stated that accused was not personally known to him, it was incumbent upon prosecution or for that matter the Investigating Officer to get accused identified in properly arranged identification parade---In absence of any legal identification test, the testimony of that sole prosecution witness, could not be believed.

(c) Criminal trial---

----Motive---Scope---Presence and proof of motive was not sine qua non for recording conviction and accused could be convicted even if no motive was alleged by the prosecution, or alleged, but not proved at the trial---Such exception could only be availed when otherwise convincing, coherent, trustworthy and confidence-inspiring evidence of unimpeachable character had been brought on record against the accused.

(d) Criminal trial---

----Benefit of doubt---Prosecution was bound to prove its case beyond any shadow of doubt---If any reasonable doubt would arise in the prosecution case, the benefit of the same must be extended to accused not as a grace or concession, but as a matter of right---Not necessary that there were many doubts in the prosecution case, but a single reasonable doubt arising out of the prosecution evidence was sufficient for acquittal of accused.

Khwaja M. Khan Gara for Appellant.

Farooq Khan Sokari for Respondent No.2.

Ahmad Farooq, A.A.-G. for the State.

Date of hearing: 17th February, 2012.

2012 P Cr. L J 1317

[Peshawar]

Before Attaullah Khan and Waqar Ahmad Seth, JJ

Mrs. SHAGUFTA SHAHEEN---Appellant

Versus

THE STATE and another---Respondents

Ehtesab Criminal Appeal Nos.11 to 13 of 2006 with Criminal M. No.16 of 2006, decided on 22nd March, 2012.

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

----Ss. 12 &13(c)---Power to freeze property---National Accountability Bureau (NAB) issued freezing orders against accused (appellant), and appeal against such order was dismissed by the Accountability Court, which confirmed the freezing order and directed accused to file a fresh objection petition in accordance with S.13 of National Accountability Ordinance, 1999---Contention of accused was that freezing order of NAB ceased to exist after 15 days and Accountability Court had misinterpreted section 12(f) of National Accountability Ordinance, 1999 and freezing order had to be confirmed within 15 days---Validity---Case record showed that prosecution had submitted the application for confirmation of freezing order passed by NAB under S.12 of the National Accountability Ordinance, 1999, before the Accountability Court, within stipulated period of 15 days---Order-sheets of case indicated that due to one or other reason matter was not finally disposed of and the delay/lapse could not only be attributed to the prosecution rather same was an act of accused as well as of the court---Objection of accused was overruled---Appeal was disposed of, accordingly.

Ehtesab Criminal Appeal No.92 of 2009 converted into Writ Petition No.2532 of 2010 and Eh. Criminal Appeal No.24 of 2010 distinguished.

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

----Ss. 12 &13(c)---Power to freeze property---National Accountability Bureau (NAB) issued freezing orders against accused (appellant), and appeal against such order was dismissed by the Accountability Court, which confirmed the freezing order and directed accused to file a fresh objection petition in accordance with S.13 of National Accountability Ordinance, 1999---Contention of prosecution was that Accountability Court had declared the objection petition of accused as premature, as same had been filed before the passing of confirmation order and accused had no cause of action to file an appeal because the right to file objections in accordance with S.13 of National Accountability Ordinance, 1999, had been provided to the accused, and accused should file his fresh objection petition before Accountability Court---Validity---Accountability Court had not dismissed the objection petition of accused on merits rather dismissed the same as premature because the objection could be filed within 14 days from the date of the order of freezing of such property, and admittedly the objection petition was filed prior to that, therefore rights of accused were protected by allowing/permitting him to file fresh objection petition---When accused had the right to file a fresh objection petition before Accountability Court, present appeal was not maintainable on merits---Appeal of accused was dismissed with the direction to file fresh objection petition before Accountability Court in accordance with provisions of S.13 of National Accountability Ordinance, 1999.

(c) Act of court---

----Act of court should not prejudice any person including the prosecution, nor anyone should suffer for the act or omission of the court, nor it should prejudice anyone.

Abdul Sattar Khan for Appellant.

Muhammad Jamil Khan, D.P.-G. for the State.

Date of hearing: 22nd March, 2012.

2012 P Cr. L J 1331

[Peshawar]

Before Nisar Hussain Khan, J

MUSLIM KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal M. (BCA) No.39-B of 2011, decided on 12th March, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302/324/34---Qatl-e-amd, attempt to commit qatl-e-amd, common intention---Application for cancellation of bail---F.I.R. revealed that place of occurrence was at a distance of 35/36 kilometers from the police station, while report was lodged in a hospital, which was situated at a distance of about 60 kilometers from the place of incident---F.I.R. further revealed that deceased was brought to the hospital in an injured condition, and in circumstances provision of medical aid to the victim would have been the first priority of kith and kin of the deceased, instead of lodging the report---Delay in lodging F.I.R. could not have been accounted against the complainant at bail stage, which otherwise per se was no ground for grant of bail---Accused and his co-accused had been directly charged in the F.I.R. for effective firing on the deceased with shotguns, and medical report of deceased revealed that there were several stitched wounds on various parts of the deceased's body, which could not have been the result of a single fire shot by virtue of the ratio of spreading of pallets, as per medical jurisprudence---Medical report fully supported the version of the complainant---Blood had been recovered from the place of the deceased and one empty of shotgun was also recovered from the place of co-accused, who was also armed with a repeater shotgun---Accused had been assigned with a double barrel shotgun, which does not eject empties automatically, so non-recovery of other empties could be answered at the trial---Accused was prima facie connected with the crime, entailing capital punishment, leaving no room for any further inquiry---Plea of alibi of accused was based on affidavits of defence witnesses, on the basis of which neither investigation officer could have declared the accused as innocent, nor Trial Court was justified in granting bail---High Court while accepting application of complainant for cancellation of bail observed that lower court had travelled beyond its jurisdiction and trespassed the parameters set by superior courts for grant or refusal of bail, in case of capital punishment; that lower court deeply appreciated the evidence and touched the merits of the case, which was the sole domain of the Trial Court; that bail granting order of lower court was not only arbitrary and erroneous but was also in violation of principles set by the superior courts, causing miscarriage of justice---High Court further observed that if appreciation of evidence as carried out by lower court, was allowed to perpetuate at bail stage, then each and every criminal case would be of further inquiry and accused would be entitled for bail---Application for cancellation of bail was allowed, impugned order of lower court was recalled and bail of accused was cancelled.

Salahuddin Khan Marwat for Petitioner.

Sultan Sheheryar Khan for the Complainant.

Ahmad Farooq A.A.-G. for the State.

Date of hearing: 12th March, 2012.

2012 P Cr. L J 1337

[Peshawar]

Before Waqar Ahmad Seth, J

MUHAMMAD SAEED KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous (Q) Nos.78-P and 79-P of 2012 with Criminal Miscellaneous No.19-P of 2012, decided on 13th April, 2012.

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

----S. 27---Criminal Procedure Code (V of 1898), Ss. 249-A, 265-K & 561-A---Petition for quashment of order of Anti-Terrorism Court---Defective investigation---Scope---Availability of alternate remedy---Effect---Trial Court (Anti-Terrorism Court) issued notice to the accused-police-official (petitioner) under S.27 of Anti-Terrorism Act, 1997, highlighting therein certain flaws in the conduct of the investigation of a case---Accused submitted his reply to the said notice, which was found to be unsatisfactory---Trial Court directed the accused to submit his bail bonds and the matter was adjourned for framing of charge and submission of bail bonds---Accused filed present quashment petition against such order of the Trial Court, with the contention that the Trial Court was not vested with the power to initiate present proceedings against the accused, and that the investigation into the case was conducted in accordance with the law and there was no flaw in the same---Validity---Under S.27 of Anti-Terrorism Act, 1997, the Anti-Terrorism Court possessed the power to punish the delinquent officer, when it came to the conclusion, either during the course of the trial or at the conclusion of it, that the investigating officer had failed to carry out the investigation properly or diligently or had failed to pursue the case properly in breach of his duty---Omissions/commissions mentioned in the notice issued to the accused, seemed to be factual in nature for which evidence was to be recorded and charge was to be framed---Accused would be at liberty to produce his evidence in reply to the charge---Accused had an alternative remedy in the shape of Ss.249-A and 265-K, Cr.P.C.--- Accused being an Investigating Officer had certain responsibilities on behalf of the prosecution and the Trial Court had pointed out material issues regarding the omission/ commission committed by him---Trial Court had taken cognizance on its own under S.27 of Anti-Terrorism Act, 1997, which could not be taken exception to as the Trial Court did possess the powers to do the same and there was no allegation of mala fide or ill-will---Petition for quashing of impugned order was dismissed, in circumstances.

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

----S. 561-A---Petition for quashment of order/proceedings---Scope---Disputed questions of fact---Effect---Jurisdiction under S.561-A, Cr.P.C., was primarily intended for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority could be established without any elaborate inquiry into complicated and disputed facts---Controverted questions of fact, adjudication upon which was only possible after obtaining all types of evidence, could be determined only by a court having the jurisdiction of a Trial Court---Superior Courts should not involve themselves into investigation of disputed questions of facts which necessitated taking of evidence, as same could be done more appropriately by the Trial Court.

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

----Ss. 249-A, 265-K & 561-A--- Petition for quashment of order/proceedings--- Scope---Availability of alternate remedy---Effect---General practice of High Court was that no proceedings should be quashed in view of the powers conferred under S.561-A, Cr.P.C., unless the Trial Court had exercised its powers under S.249-A or 265-K, Cr.P.C.

Ghulam Mohyuddin Malik for Petitioner.

2012 P Cr. L J 1375

[Peshawar]

Before Qaiser Rashid Khan, J

Haji ALLAH BAKHSH---Petitioner

Versus

Haji GULSHER and 3 others---Respondents

Criminal Miscellaneous Q. Petitions Nos.186 and 187 of 2011, decided on 22nd November, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 133, 140 & 561-A---Order for removal of nuisance---Quashing of order, petition for---Complainant/respondent in complaint filed under S.133, Cr.P.C. had alleged that petitioner had demolished the metalled road constructed by Irrigation Department some forty-five years back in landed property of the complainant and the petitioner by such demolition had caused inconvenience to the complainant as well the general public---Trial Magistrate passed an interim conditional order of removing the obstruction and allowed the complaint and made conditional order under S. 140, Cr.P.C., which was also maintained in the revision by Additional Sessions Judge---Said order had been sought to be quashed by the petitioner---Evidence on record had fully proved that a portion of the metalled road which was used by the general public for over four decades was demolished by the petitioner---Petitioner had himself admitted that the path in question was used by the general public and he did not produce any evidence in his defence---Statement of the petitioner, made it clearly manifest that he demolished the path so as to settle a score with the respondent complainant and in the process had caused inconvenience to the public at large---Judicial Magistrate found the complaint to be maintainable---Conditional order passed by the Judicial Magistrate, affirmed by the revisional court, were not challenged by the petitioner before the higher forums, which held the field---Impugned orders of the lower fora, dealing with the complaint, not in a mechanical manner, but after threadbarely discussing the evidence brought on record, could not be interfered with, which was accordingly upheld.

Saleemullah Khan Ramazai for Petitioner.

Nemo for Respondents.

Date of hearing: 22nd November, 2011.

2012 P Cr. L J 1422

[Peshawar]

Before Miftah-ud-Din Khan, J

ABDUR REHMAN---Petitioner

Versus

SADAQAT and another---Respondents

Criminal Miscellaneous No.364-P of 2012, decided on 9th April, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.382/34---Theft after preparation made for causing death, hurt or restraint, in order to the committing of the theft, common intention---Bail, refusal of---Contention of the accused was that he was not armed at the relevant time and no recovery had been effected from him, therefore, case of the accused was one of further inquiry---Validity---Accused and his co-accused in furtherance of their common intention were duly armed after making preparation for causing hurt and wrongful restraint, and were caught red handed from the spot while snatching mobile phones and cash from the complainant---Complainant had got no ill-will or mala fide against the accused, therefore, no reason and justification existed to extend the concession of bail to the accused---Bail petition of accused was dismissed, in circumstances.

Miss Sakina Fida for Petitioner.

Qazi Babar Irshad for Respondents.

Complainant in person.

Date of hearing: 9th April, 2012.

2012 P Cr. L J 1436

[Peshawar]

Before Syed Sajjad Hassan Shah, J

Syed MUREED ABBAS SHAH BUKHARI---Petitioner

Versus

THE STATE and 3 others---Respondents

Criminal Petition No.219 of 2011, decided on 28th February, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 195(1)(a), 144 & 561-A---Penal Code (XLV of 1860), S. 188---West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S. 16---Prosecution for contempt of lawful authority of public servants, power to issue order absolute at once in urgent cases of nuisance or apprehended danger, disobedience to order duly promulgated by public servant, dissemination of rumours---Quashment of F.I.R.---Contention of accused was that procession had been taken with the approval of local administration and was being taken since long according to schedule and prescribed route, and that police was not authorized to register F.I.R. for violation of S.144, Cr.P.C. unless a complaint in writing was made by the authority in terms of S.195(1)(a), Cr.P.C.---Validity---Court could not take cognizance of an offence under S.188, P.P.C. except on the complaint in writing of the public servant concerned or of some other public servant to whom he was subordinate---Present F.I.R. had been registered on the report of Station House Officer (SHO) police, the cognizance of which could not be taken by the court, and in such an event present F.I.R. was against the law and could not proceed---Petition of accused was accepted and F.I.R. was quashed.

Muhammad Anwar Awan for Petitioner.

Khan Wali Khan Mehsud, A.A.-G. for the State.

Date of hearing: 28th February, 2012.

2012 P Cr. L J 1451

[Peshawar]

Before Qaiser Rashid Khan, J

ABDUL GHAFAR and 2 others---Petitioners

Versus

ISHTIAQ AHMAD, JUDICIAL MAGISTRATE-I, TANK and 2 others---Respondents

Criminal Miscellaneous Q.P. No.191 of 2011, decided on 16th February, 2012.

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

----S. 561-A---Penal Code (XLV of 1860), Ss.302/34---Qatl-e-amd, common intention---Application for quashing of order---Allegation against police officials (petitioners) was that they killed the deceased and tried to show the incident as a police encounter---Complainant filed an application under S.22-A, Cr.P.C., before the Justice of Peace, whereafter, directions were given for registration of case against the police officials---Police submitted final report under S.173, Cr.P.C. praying for cancellation of the F.I.R., with which Magistrate did not agree and instead directed the Station House Officer to submit complete challan within seven days---Contentions of police officials were that Magistrate ignored the final report submitted by the police under S.173, Cr.P.C.; that in case of disagreement with the police opinion Magistrate could only send the case for trial to the Sessions Judge, and that the Magistrate had misconceived and misconstrued the provisions of S.173, Cr.P.C.---Validity---Case record revealed a letter addressed by a senior police official to the District Public Prosecutor recommending the cancellation of the present F.I.R. on the basis of the final report, which showed the disregard of the police officials for the due process of law---Magistrate was not necessarily bound by the report submitted by the police under S.173, Cr.P.C., and might not subscribe to the conclusions drawn by the investigating officer---No illegality or irregularity had been committed by the Magistrate in disagreeing with the final report of the police---Petition for quashing of order was dismissed and police was directed to submit the complete challan within two weeks.

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

----Ss. 173 & 190---Police report/opinion---Cognizance of offences by Magistrate---Scope---Magistrate is not necessarily bound by the report submitted by the police under S.173, Cr.P.C., and may not subscribe to the conclusions drawn by the investigating officer---Section 190, Cr.P.C., caters to a situation where a Magistrate takes cognizance of a case despite report of the police under S.173, Cr.P.C.---No clog can be put on the Magistrate not to apply his independent mind to the material available before him and form his own unfettered opinion about the matter.

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

----S. 561-A---Penal Code (XLV of 1860), Ss.302/34---Qatl-e-amd---Application for quashing of order---Practice of police to lag behind in performance of their duties when an F.I.R. is registered against another police official---Such practice was deprecated by the High Court with the observation that despondency in the public rises when different yardsticks are applied to persons hailing from different strata of the society---Application for quashing the order was dismissed.

Muhammad Ismail Khan Alizai for Petitioners.

Khan Wali Khan, Additional A.-G. for the State.

Sh. Iftikharul Haq for the Complainant.

Date of hearing: 16th February, 2012.

2012 P Cr. L J 1467

[Peshawar]

Before Dost Muhammad Khan and Mazhar Alam Khan Miankhel, JJ

KASHIF---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.300 of 2010, decided on 22nd December, 2011.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 337-D & 337-F(v)/34---Qatl-e-amd, attempt to qatl-e-amd, Jaifah, causing Hashimah and common intention---Appreciation of evidence--- Sentence, reduction in--- Mitigating circumstance---Initial report was made by the complainant who himself was badly injured in the occurrence and later on died---Said statement which had assumed the status of dying declaration, was made in presence of Doctor whose presence was established---Cause of death of deceased having been established, which was firearms injuries received by him, non-conducting of his postmortem had lost its value and that alone could not be termed as factum of doubt---Defence had failed to shatter the stance of deceased complainant---Said report could not be discarded---Version of the complainant got full support from the ocular account of occurrence given by prosecution witness---Prosecution witness being brother of deceased, alone would not be sufficient to discard his statement, when otherwise his statement was worth-reliance---Abandonment of one witness being unnecessary was not fatal to prosecution case, when statement of other eye-witnesses, coupled with dying declaration of the complainant along with other corroborative evidence had fully supported the case of prosecution---Even otherwise, it was the quality of evidence and not the quantity---Even a single confidence inspiring statement of witness was sufficient for conviction of accused---Medical account of the case also supported the case of prosecution as same was in consonance with ocular account---When the parties were residents of the same area and known to each other, they could easily be recognized, even in the dark---Contention that being a night occurrence without disclosing source of light would create serious doubts on the identification of accused, was repelled--- Delay of 2.45 hours in making the report was fully justified---Prosecution having proved its case against accused without any shadow of doubt, accused was rightly convicted by the Trial Court---Occurrence had taken place at night and because of darkness, it was not possible to determine that whose shot proved fatal, said aspect could be taken as a mitigating circumstance---Motive as alleged by the prosecution was not proved and remained obscure---Sentence of death awarded to accused, being uncalled for same was converted into life imprisonment, in circumstances.

Niaz Ahmad v. State PLD 2003 SC 635; State v. Muhammad Ashraf 1998 SCMR 1764; Abdul Aziz v. The State 1994 SCMR 35; State v. Sharafat Ali Khan 2010 SCMR 1205 and State v. Muhammad Ahmad (Mehmood Ahmad) 2010 SCMR 660 rel.

Barrister M. Zahoorul Haq for Appellant.

Barrister Waqar Ali, D.A.-G. for the State.

Sahibzada Asadullah Khan for the Complainant.

Date of hearing: 22nd December, 2011.

2012 P Cr. L J 1486

[Peshawar]

Before Nisar Hussain Khan, J

KHALID MEHMOOD---Petitioner

Versus

THE STATE and 6 others---Respondents

Quashment Petition No.12 of 2012, decided on 8th March, 2012.

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

----Ss. 342 & 561-A---Qanun-e-Shahadat (10 of 1984), Art. 43---Power to examine accused--- Scope and principles--- Quashing of proceedings---Observations made by Trial Court against police official on statements of accused persons---Statements of accused persons were recorded under S.342, Cr.P.C., during trial, and in reply to a question, all the accused persons gave a similar answer stating that their vehicle was released by the accused-police official (petitioner) against receipt of illegal gratification, and on basis of such answer Trial Court directed registration of a separate case against the accused-police official---Validity---Section 342(3), Cr.P.C., indicated that answers given by accused may be taken into consideration against him, but there was nothing in the said section which may show that any answer given by the accused may be used against his co-accused or any other person---Statement of accused recorded under S.342, Cr.P.C., was neither a confession nor equated with the confession, rather, same was a plea, which may be taken by accused in his defence to explain the evidence produced against him---Criminal Procedure Code, 1898, was not a substantive law, rather it was procedural law and only Qanun-e-Shahadat Order, 1984 was the relevant substantial law, which determined the legal worth and admissibility of any kind of evidence or statements, therefore, answer made by the accused persons, during their examination under S.342, Cr.P.C., did not come within the ambit of confession, as it was not recorded in accordance with the law prescribed therefor---Answer given by accused persons was exculpatory in nature throwing the whole blame at the door of the accused-police official and not taking any responsibility, so it could not be termed as a confession---Article 43 of Qanun-e-Shahadat, 1984 provided that only a proved confession could be considered as a circumstantial evidence against the co-accused, and in the present case accused-police official was not the co-accused of accused persons who had made the statements--- Relevant question to which accused persons provided their answer, was not in accordance with the requirement of S.342, Cr.P.C., as no explanation with regard to any piece of prosecution evidence was sought---Language and tenor of the said question was in the form of cross-examination and not for an explanation sought of evidence produced against the accused persons--- Impugned observations of Trial Court were erroneous and in violation of the law---Petition for quashment was allowed and impugned observations rendered by Trial Court against the accused-police official were quashed.

Tahsinuddin Ahmed and others v. Emperor AIR 1940 Cal. 250 ref.

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

----Ss. 342 & 561-A---Power to examine accused---Scope and object---Statement of accused recorded under S.342, Cr.P.C., was neither a confession nor it equated with the confession, rather, it was a plea, which may be taken by accused in his defence to explain the evidence produced against him---Prime object of S.342, Cr.P.C., was to provide the accused and opportunity to offer his explanation about the evidence so produced against him, and it was neither meant to collect evidence against him or anybody else nor any part of such statement could be used against any other person.

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

----Ss. 342 & 561-A---Power to examine accused---Principles---Questions put to accused cannot be couched in inquisitive form.

Tahsinuddin Ahmed and others v. Emperor AIR 1940 Cal. 250 ref.

Asghar Nawaz for Petitioner.

Ahmad Farooq, A.A.-G. for the State.

Date of hearing: 8th March, 2012.

2012 P Cr. L J 1498

[Peshawar]

Before Mazhar Alam Khan Miankhel and Fazle Haq Abbasi, JJ

IBRAHIM---Appellant

Versus

SAIFULLAH and others---Respondents

Criminal A. No.214 of 2011, decided on 1st March, 2012.

Penal Code (XLV of 1860)---

----Ss. 302/324/34/427---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-e-amd, attempt to commit qatl-e-amd, common intention, mischief causing damage to the amount of fifty rupees---Appeal against acquittal--- Appreciation of evidence--- Benefit of doubt---Involvement of accused persons (respondents) in the commission of the offence was doubtful, and the very presence of the complainant (appellant) himself at the place of occurrence was unbelievable---Complainant while appearing as witness had made improvements in the story narrated by him with respect to assigning role of firing at different accused persons---Vehicle at which accused persons allegedly fired, was hit with fire-arms from all four sides but the complainant in his report and statement before the court had taken the stance that he took shelter in the space between the front and rear seats of the vehicle and escaped unhurt---Fact that complainant escaped unhurt was difficult to believe as given vehicle was fired at indiscriminately from all sides---Said vehicle was not produced in evidence and was neither examined by a motor vehicle examiner nor any photographs of the same were brought on record---Non-production of vehicle to prove and strengthen the stance of the complainant, was an important factor, in absence of which prosecution story could not be believed---Complainant claimed to have identified the accused persons in the headlights of the vehicle, whereas record suggested that there were bushes and trees on both sides of the road, therefore, persons present in bushes during night time could not have been identified in the head lights of the vehicle---Site plan revealed that recoveries of empties had been made from nearby bushes---Places assigned to the accused person on the site plan placed them in the line of fire of each other and, in circumstances, complainant who was lying in the vehicle could not have escaped unhurt---Evidence was insufficient to believe that firing was made by all the accused persons as the empties were not sent to the Forensic Science Laboratory--- Medical reports and injury sheets of the deceased persons revealed that same had received fire-arm injuries on different parts of their bodies including entrance wounds in the belly of one of the deceased---Given such level of injuries, it was hard to believe that complainant lying in the back of the vehicle escaped unhurt---Prosecution had alleged motive but failed to prove the same---Trial Court had rightly acquitted the accused persons after fully appreciating the evidence and material available on the record---Appeal against acquittal was dismissed, in circumstances.

Sher Muhammad Khan for Appellant.

Nemo for Respondents.

Date of hearing: 1st March, 2012.

2012 P Cr. L J 1509

[Peshawar]

Before Miftah-ud-Din Khan, J

MUHAMMAD YASIN---Petitioner

Versus

THE STATE---Respondent

Cr. M.B.A. No.360-P of 2012, decided on 6th April, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 489-B---Using as genuine, forged or counterfeit currency-notes or bank-notes---Bail, grant of---Further inquiry---Forged currency notes of different denominations were allegedly recovered from the possession of the accused---Contention of the accused was that case against him was not covered by S.489-B, but S.489-C, P.P.C., which offence was punishable up to seven years imprisonment or fine, or with both, therefore, the accused was entitled to the concession of bail---Validity---Forged currency notes had been recovered from the possession of the accused but nothing on record showed that accused had knowledge of the same and was found selling or using the same notes as genuine, therefore, prima facie the provisions of 489-B were not attracted---Question as to whether the accused had the knowledge that the currency notes recovered from his possession were forged and counterfeit, was yet to be proved, therefore, in circumstances, offence under S.489-C, P.P.C., against the accused was open to further probe--- Offence under S.489-C, P.P.C., was punishable with imprisonment up to seven years or fine or with both, hence, no legal justification existed to refuse bail to the accused---Bail application of accused was accepted and he was admitted to bail.

Sahibzada Riasatul Haq for Petitioner.

Qazi Babar Irshad for the State.

Date of hearing: 6th April, 2012.

2012 P Cr. L J 1519

[Peshawar]

Before Qaiser Rashid Khan, J

NOOR KHAN---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Miscellaneous B.C.A. No.22-D of 2012, decided on 24th February, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 497(5) & 497(2)--- Penal Code (XLV of 1860), Ss.379/427/447/506/34---Theft, mischief causing damage to the amount of fifty rupees, criminal trespass, criminal intimidation, common intention---Application for cancellation of bail---Allegation against accused and co-accused (respondents) was that they took away construction material from a land which was the subject of civil litigation between the parties---Contentions of complainant were that accused and co-accused were directly charged for the occurrence; that report had been lodged with reasonable promptitude, and that circumstances depicted the commission of offence---Validity---Main dispute between the parties was the disputed property for which both the parties were engaged in civil litigation, and alleged occurrence was a direct offshoot of the same---Charging a rival in a criminal case was not a rare phenomenon so as to extract a benefit from a civil dispute---Neither the complainant nor anybody else was a witness of the alleged theft and trespass committed by the accused and co-accused---No recovery had been effected from the accused and co-accused---Element of mala fide on part of the complainant was evident, in circumstances, and made the matter one of further inquiry---Where bail was granted by a competent court of law, then strong and exceptional grounds were required for its cancellation, which were lacking in the present case---Neither there was any charge against the accused and co-accused for misuse of the concession of bail nor any allegation of tampering with prosecution evidence existed---Application for cancellation of bail was dismissed, in circumstances.

Muzzafer Iqbal v. Muhammad Imran Aziz and others 2004 SCMR 231 rel.

Muhammad Ismail Khan Alizai for Petitioner.

Shujaullah Khan for Respondents.

Sanaullah Shamim, D.A.-G. for the State.

Date of hearing: 24th February, 2012.

2012 P Cr. L J 1526

[Peshawar]

Before Nisar Hussain Khan and Qaiser Rashid Khan, JJ

Haji REHMAN SHO and 3 others---Petitioners

Versus

PROVINCIAL POLICE OFFICER, GOVERNMENT OF KHYBER PAKHTUNKHWA, PESHAWAR and 5 others---Respondents

Writ Petition No.8-B of 2012, decided on 3rd February, 2012.

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

----Ss. 4(f), 154, 561-A & Sch. II--- Police Order (22 of 2002), Art.155---Constitution of Pakistan, Art. 199---Constitutional petition---Cognizable offence, misconduct by police officers---F.I.R. had been registered against accused-police officials under Art.155 of Police Order, 2002---Contention of accused-police officials was that offence under Art.155 of Police Order, 2002 was non-cognizable, therefore, F.I.R. had been wrongly registered by the police---Validity---Art.155 of Police Order, 2002, entailed punishment of three years and no express provision existed in the said Order to state that it was a non-cognizable offence, and in such a situation recourse had to be made to S.4(f) of Cr.P.C, according to which the offence or case in which a police officer may arrest the accused without warrant in accordance with the Schedule II of Cr.P.C. is a cognizable offence or a cognizable case---Schedule II of Cr.P.C. under the heading, "Offences Against Other Laws" provided that police officer could arrest the accused without warrant in an offence, which was punishable with imprisonment for three years or upward and such offence had also been made non-bailable, except for S.13 of West Pakistan Arms Ordinance, 1965---No such exception had been provided in Cr.P.C. or Police Order, 2002 for an offence punishable under Art. 155 of said Order---Offence being a cognizable offence, F.I.R. had been legitimately registered in pursuance of S.154, Cr.P.C., to which no exception could be taken--- Constitutional petition was dismissed, in circumstances.

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

----S. 155---Police Order (22 of 2002), Art. 155---Constitution of Pakistan, Art. 199---Constitutional petition---Misconduct by police officers--- Information in non-cognizable cases--- Scope--- In non-cognizable cases/offences, the only course open for the police, by virtue of S. 155, Cr.P.C., was to obtain permission of Magistrate after making entry in the concerned book and then to investigate the case; in a non-cognizable offence the police could neither register a case under S.154, Cr.P.C. nor could it arrest the accused without a warrant.

Dost Muhammad Khan and Hidayatullah for Petitioners.

Ahmad Farooq Khattak, A.A.-G. for Respondents.

Date of hearing: 3rd February, 2012.

2012 P Cr. L J 1542

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

NAZIR AHMAD and another---Appellants

Versus

SHAUKAT ZAMAN and another---Respondents

Criminal Appeal No.99 of 2011, decided on 27th March, 2012.

Penal Code (XLV of 1860)---

----Ss. 409/465/470--- Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust by public servant, by banker, merchant or agent; forgery; forged document and corruption---Appreciation of evidence---Allegation was that document in question was a forged document which had been prepared by the accused persons and was replaced with the original on the file---Not a single witness of the prosecution had stated that they were the accused persons who managed to replace the original disputed documents from the files by placing thereon the two forged documents---Witness in clear and unequivocal terms had admitted that, he, in his report had not indicated as to who was the person responsible for making the forgery and replacing the original with that of the disputed documents and that his findings were based on presumption and yet another opinion with regard to his findings could be made---Entire evidence produced by the Anti-Corruption Establishment was deficient to establish the involvement of accused for the offence of forgery---Nothing was on record, whether such documents were produced in evidence in civil suit, and they suffered on account of said documents---Record of the case was also silent as to by whom and by which authority the said documents were declared to have been tampered with or declared forged---Anti-Corruption Establishment, in absence of any original document, could not declare the copy of any document to be a forged one---Findings of conviction of sentence recorded by the Trial Court, could not be held to have been made on the basis of correct appreciation of evidence which could not be maintained and upheld, in circumstances---Conviction and sentence recorded by the Trial Court, was set aside, accused were acquitted and were set free.

Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad v. Zafar Awan, Advocate PLD 1992 SC 72 and Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan, Islamabad v. Zafar Awan PLD 2005 SC 19 ref.

Zia ur Rehman and Yasir Ghaffar for Appellants.

Sher Muhammad Khan and Gauhar Ali Khan for Respondent No.1.

Ikramullah Khan, A.A.-G. for the State.

Date of hearing: 13th March, 2012.

2012 P Cr. L J 1560

[Peshawar]

Before Waqar Ahmad Seth, J

SHAHID RAZIQ alias SHAHID---Applicant

Versus

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

Criminal Miscellaneous No.561-P of 2012, decided on 18th May, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Chapter XVI (Ss.299 to 338-H) & Ss. 324/34/337-F(ii)/337-N(2)---Attempt to commit qatl-e-amd, common intention, ghayr-jaifah-badiah, cases in which qisas for hurt shall not be enforced---Bail, grant of---Overriding effect of S.337-N(2), P.P.C. over all other sections providing punishment for hurt---Scope---Allegation against the accused was that he fired at the complainant as a result of which the latter got injured on his left thigh---Alleged motive for the occurrence was a family dispute---Contentions of the accused were that the injury was self-inflicted and this fact could easily be gathered from the medico-legal report; that no recovery of blood or crime empty had been made from the spot; that the injury was simple and on non-vital part of the body, and that the accused at the time of the occurrence was in the company of his friends and in this respect affidavits were available on record---Validity---Although accused had been assigned a specific role but had it been his intention to kill the complainant then there would have been a repetition of fire, which was not done---Injury sustained by the complainant was on his thigh, which fell under S.337-F(ii), P.P.C., entailing punishment of payment of 'Daman' and imprisonment which might extend to three years as 'Tazir'---Reading of Ss.324, 337-F(ii) and 337-N(2), P.P.C., showed that the said sections did not supplement each other and rather were at variance from each other---Punishment provided under S.324, P.P.C., was imprisonment with fine under 'Tazir' and the word "shall" had been used therein, making it mandatory in nature, whereas the punishment provided for the offence of hurt was the payment of arsh or daman as the case might be, which was mandatory and the award of imprisonment of various terms without any fine had been left to the discretion of the court---Provisions of S.337-N(2), P.P.C, overrode S.324, P.P.C., and all other sections providing punishment for offences of hurt contained in the chapter---Section 337-N(2), P.P.C. began with the non obstante clause i.e., "notwithstanding anything contained in this chapter in all cases of hurt, the court may", which clause gave it overriding effect over all other sections providing punishment for hurt, and under said section the offender besides payment of arsh might be awarded punishment of 'Tazir' if he was a previous convict, habitual or hardened, desperate or dangerous criminal--- Nothing on record suggested that accused in the present case was either a previous convict, habitual or hardened, desperate or dangerous criminal, therefore, the accused was entitled to bail---Accused was no longer required for further investigation---Bail petition of the accused was allowed and he was granted bail.

2008 SCMR 678 and 2011 YLR 2736 ref.

Mahmood Alam Khan for Applicant.

Akbar Zaman Khattak for Respondent No.2

Muhammad Imran for the State.

Date of hearing: 18th May, 2012.

2012 P Cr. L J 1579

[Peshawar]

Before Shah Jehan Khan Yousafzai, J

SATTAR ALI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1069 of 2010, decided on 8th September, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.324/34---Attempt to commit qatl-e-amd, common intention---Bail, grant of---Further inquiry--- For the solitary injury, and that too not on the vital part of the body of the victim, four persons were charged---Occurrence could be committed by single accused in view of the solitary injury sustained by victim aged about 8/9 years---Brother of accused was murdered by the complainant party on the following day of the occurrence---Motive indicated that the complainant party was not paying the price of the buffalo, and accused party was trying to take away the said buffalo---No previous enmity or ill-will existed between the parties---Involvement of accused in the commission of the offence required further inquiry---Accused was admitted to bail, in circumstances.

Arshad Hussain Yousafzai for Petitioner.

F.M. Sabir for the State.

Date of hearing: 7th September, 2010.

2012 P Cr. L J 1586

[Peshawar]

Before Liaqat Ali Shah, J

TAJ MUHAMMAD---Appellant

Versus

JAMSHED and another---Respondents

Criminal Appeal No. 717 of 2010, decided on 29th November, 2010.

Penal Code (XLV of 1860)---

----Ss. 324 & 337-F(ii)---Attempt to commit qatl-e-amd, causing badi'ah---Appreciation of evidence---Three accused were charged in the F.I.R., two accused had not been assigned the role of effective firing, while accused fired at the complainant as a result of which complainant sustained injury---Being brother of the complainant, identity of accused could not be doubted---Venue was established as blood-stained earth had been recovered from the spot---Accused, after the commission of offence absconded and warrant under S.204, Cr.P.C. and proclamation under S.87, Cr.P.C. were issued against him---Medical evidence confirmed that the injury sustained by the complainant was caused with fire-arm---Matter had been reported within reasonable time---Statement of complainant had properly been appreciated by the Trial Court and conviction of accused was well reasoned---Appeal was dismissed.

Aurang Zeb Khan for Appellant.

Akbar Zaman Khattak for the State.

Arshad Hussain Yousafzai for the Complainant.

Date of hearing: 29th November, 2010.

2012 P Cr. L J 1595

[Peshawar]

Before Mian Fasih-ul-Mulk, J

HAKEEM FAZAL ELLAHI---Appellant

Versus

MUHAMMAD DIN and 2 others---Respondents

Criminal Appeal No.23 of 2011, decided on 7th May, 2012.

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

----Ss. 249-A, 203 & 417---Shariah Nizam-e-Adl Regulation, 2009, para. 10(1)---Penal Code (XLV of 1860)---S. 427---Mischief causing damage to the amount of fifty rupees---Appeal against acquittal---Dismissal of private complaint for non-prosecution---Time frame for deciding criminal cases under Nizam-e-Adl Regulation, 2009---Allegation against the accused persons (respondents) was that they had cut trees in the property of the complainant (appellant), the value of which was approximately Rs.100,000---Trial Court dismissed the complaint against the accused persons for non-prosecution and acquitted them under S.249-A, Cr.P.C.--- Contentions of the complainant were that impugned order was patently illegal as same had been passed because of non-appearance of the complainant; that the Trial Court had ignored the principles of criminal jurisprudence that case should be decided on the basis of evidence produced by the parties and no one should be deprived of his valuable right on technical grounds; that Shariah Nizam-e-Adl Regulation, 2009, did provide time frame for deciding criminal cases but it never empowered the courts to dismiss the suit or complaint for non-prosecution---Validity---Perusal of impugned order clearly showed that the Trial Court did not follow the legal procedure---No charge was framed against the accused persons and the Trial Court acted in haste in acquitting the accused under S.249-A, Cr.P.C., at a very initial stage without affording an opportunity to the complainant to prove his allegations against the accused persons---Appeal against acquittal was allowed, impugned order of Trial Court was set aside and the case was remanded to the Trial Court for deciding the private complaint strictly in accordance with law after recording evidence.

Mst. Said Khanum v. Munsif Khan PLD 1992 Pesh. 71; Mst. Tasleem v. Abdul Rasheed Bacha PLD 1989 Pesh. 28 and Imam Bukhsh v. Sadiq Hussain SHO and 2 others 2006 YLR 26 rel.

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

----S.249-A--- Applicability of S. 249-A, Cr.P.C.--- Requirements--­Acquittal of accused---Court after hearing the prosecutor and the accused, if considers that the charge is groundless or there is no probability of the accused being convicted of any offence, may acquit the accused.

Mst. Said Khanum v. Munsif Khan PLD 1992 Pesh. 71 rel.

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

----S.203---Dismissal of private complaint for non-prosecution---Principles---Once the Trial Court summons the accused after having formed an opinion that sufficient grounds were available for proceeding against them, private complaint cannot be dismissed for non-prosecution as it becomes a State case.

Imam Bukhsh v. Sadiq Hussain SHO and 2 others 2006 YLR 26 rel.

Sardar Zulfiqar for Appellant.

Azim Khan for Respondents.

Date of hearing: 7th May, 2012.

2012 P Cr. L J 1606

[Peshawar]

Before Nisar Hussain Khan, J

Mst. CHAND BIBI---Applicant

Versus

ASAL KHAN and 2 others---Respondents

Criminal Miscellaneous Bail Cancellation Applications Nos.1-B and 2-B of 2011, decided on 22nd February, 2012.

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

----Ss. 497(5) & 497(2)---Penal Code (XLV of 1860), Ss. 302/34---Qatl-e-amd, common intention---Application for cancellation of bail---Further inquiry---Perusal of F.I.R. revealed that accused (co-accused) had neither been charged therein nor he had been shown to be present at the spot at the time of occurrence--- No particular role had been assigned to the accused, except for the fact that he had family relations with the co-accused---Participation of accused in the commission of the crime required further inquiry into his guilt, which could only be determined after recording evidence at trial---Application for cancellation of bail was dismissed, in circumstances.

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

----Ss. 497(5), 561-A & 169---Penal Code (XLV of 1860), Ss. 302/34---Qatl-e-amd, common intention---Application for cancellation of bail granted to accused on his personal bond---Release of accused when evidence deficient---Scope---Quashing of order---Record of medical treatment of accused revealed that he was under treatment for some problem in his kidneys, on basis of which Station House Officer (SHO) released the accused on bail after obtaining his personal bond---On submission of challan accused had been placed in column No.3 of the challan, as a regular accused, and in his remarks SHO had stated in the challan that accused had been released on bail due to his renal disease---Such remarks of SHO made it clear that accused had not been termed as innocent nor any report under S.169, Cr.P.C. had been prepared in his favour---Accused had been directly charged for effective firing on the deceased and occurrence was witnessed by two eye-witnesses---During investigation, blood-stained earth was taken into possession from the place of occurrence and one crime empty was also recovered from the place of the accused---Postmortem report of deceased supported the version of the F.I.R.---Prima facie case existed against the accused, and in absence of finding of innocence of the accused, SHO on his own, could not release the accused, on obtaining his personal bond---SHO or officer-in-charge of investigation could only exercise their powers under S.169, Cr.P.C. when the evidence in favour of the prosecution case was deficient or there was no evidence at all, but that was not the situation in the present case--- SHO had abused and misused his power by releasing the accused on his personal bond, therefore, order of SHO was quashed and bail of accused was cancelled.

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

----S. 169---Penal Code (XLV of 1860), Ss. 302/34---Qatl-e-amd, common intention---Release of accused when evidence deficient---Scope---Station House Officer (SHO) or officer-in-charge of investigation could only exercise their powers under S.169, Cr.P.C. when the evidence in favour of the prosecution case was deficient or there was no evidence at all.

Sakhi Janan for Petitioner.

Ahmad Farooq Khattak, A.A.-G. for the State.

Sultan Mehmood for Respondents.

Date of hearing: 22nd February, 2012.

2012 P Cr. L J 1662

[Peshawar]

Before Syed Sajjad Hassan Shah and Nisar Hussain Khan, JJ

KHAN AHMAD KHAN and another---Appellants

versus

THE STATE and 2 others---Respondents

Criminal Appeal No.124 and Criminal Jail Application No.122 of 2009, decided on 26th October, 2011.

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

----Ss. 302(b)/324/34---Qatl-e-amd and attempt to commit qatl-e-amd---Appreciation of evidence---Sole eye-witness of occurrence was the real brother of the deceased---Occurrence had taken place at 0045 hours i.e. at midnight---Place of occurrence as alleged by the complainant, was established by the recoveries of empties from the places of accused persons and recovery of blood-stained earth from the place of the deceased during spot inspection by the Investigating Officer---Defence had neither challenged the venue of occurrence during the trial nor any argument had been advanced on that aspect of the case---Empties of two types of rifles had been recovered from the spot and the report of Forensic Science Laboratory was also in line in that regard---Time between death and postmortem, reflected in postmortem report corresponded with the time of occurrence as alleged by the complainant---Time of occurrence was established from the medical evidence as well---Report was lodged within reasonable time---One of accused was the husband of the real paternal aunt of the complainant and the deceased, while co-accused was his son---No reason was available to falsely implicate such close relatives in the murder case and it was unbelievable that the complainant would substitute the close relatives for the real culprits by charging them for the murder of his brother---Even otherwise, substitution for the real culprits was a rare phenomenon---Complainant who had alleged that he identified the accused in the torch-light produced to Investigating Officer the torch containing three cells; the availability of which was natural to the complainant---Mere contradiction of medico-legal report could not overweigh the ocular account---Accused persons after the occurrence had absconded---Abscondence of accused had also thwarted the prospects of recovery of weapon of offence---Testimonies of the prosecution witnesses, motive for the crime, medical evidence, incriminating recoveries and unplausible abscondence of accused proved that accused had committed the qatl-e-amd of deceased and had attempted at the life of the complainant---Trial Court had rightly convicted and sentenced accused persons in the case---Conviction and sentence awarded to accused by the Trial Court, were maintained.

Khurshid v. The State PLD 1996 SC 305 and Saeedullah Khan v. The State 1986 SCMR 1027 rel.

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

----Art. 17---Penal Code (XLV of 1860), Ss. 302(b), 324 & 34---Qatl-e-amd---Appreciation of evidence---Quality and quantity of evidence---Competence and number of witnesses---Conviction could be recorded by the courts on the basis of statement of sole eye-witness, if it rang true and was confidence-inspiring---Quality and not the quantity of the evidence was to be seen by the court---If intrinsic value of the statement of an eye-witness, was such, which satisfied the judicious conscious of the court, it should be believed---Article 17 of the Qanun-e-Shahadat, 1984, clearly postulated that, except in Hudood cases and financial matters, a case could be proved through the evidence of a single witness---Every person was competent to testify irrespective of his relation with the deceased, unless he was proved to be inimical towards accused and deeply interested in his conviction due to his previous enmity.

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

----Ss. 302(b), 324 & 34---Qatl-e-amd---Appreciation of evidence---Site plan, evidentiary value of---Site plan was not a substantive piece of evidence, which could be used to contradict or discredit the evidence of an eye-witness.

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

----Ss. 302(b), 324 & 34---Qatl-e-amd---Appreciation of evidence---Truthfulness or falsehood of a witness---Mere presence of stamp of injuries on the person of witness was not a yardstick for determining the truthfulness or falsehood of the witness---Every injured witness could not be believed to speak truth and every interested eye-witness would not tell a lie---Circumstances of the case and intrinsic worth of his statement would determine the veracity and credibility of a witness, which could be assessed in the light of attending circumstances of each and every case---Straightforward and truthful account of event, furnished by a eye-witness, could not be brushed aside, merely for the reason that he did not bear the stamp of injuries on his person or he had escaped unhurt.

Haroon-ur-Rashid and others v. State and another 2005 SCMR 1568 rel.

(e) Criminal trial---

----Benefit of doubt---No doubt, it was well entrenched principle of law that accused was treated as favourable child of the courts and law and benefit of even a single doubt was extended to him, but the doubt must be reasonably entertained by a person of common prudence on justifiable grounds---Said benefit could not be stretched to the extent of self-created, imaginary and hypothetical doubts in favour of accused at the cost of the family of the deceased who were the victims of the brutal acts of accused; they too, required equal treatment of the court of justice---Balance was to be maintained between accused and the complainant party, in dispensation of justice before the court of law.

Anwar-ul-Haq for Appellants.

Faridullah Khan, D.A.-G. for the State.

Muhammad Farooq Khan Sokari for the Complainant.

Date of hearing: 26th October, 2011.

2012 P Cr. L J 1743

[Peshawar]

Before Yahya Afridi and Khalid Mehmood, JJ

GULFARAZ---Appellant

versus

MUMTAZ and another---Respondents

Criminal A. No.127 of 2009, decided on 9th May, 2012.

(a) Criminal trial---

----Motive---Evidentiary value---Motive is not always a basic proof for commission of offence and it is a corroboratory evidence for connecting the accused with the commission of crime---Once motive is specifically alleged, then prosecution is bound to prove the same.

Muhammad Aslam Khan v. State 1999 SCMR 172 rel.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Murder had remained a mystery---Investigation was inefficient and unfair, which had made the entire prosecution case doubtful---Presence of eye-witnesses at the scene of occurrence and their conduct was not free from doubt---Motive alleged for the occurrence was not established---Inordinate delay in lodging the F.I.R. was not explained---Material witnesses had not been produced by the prosecution in the court---Accused was acquitted in circumstances.

Muhammad Afzal and 3 others v. State 2007 YLR 111; Allah Bachaya v. State PLD 2008 SC 349; Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327; Ansar Ali and another v. The State 2010 SCMR 1821; Ghulam Mustafa and others v. The State 2009 SCMR 916; Iftikhar Hussain and others v. The State 2004 SCMR 1185 and Muhammad Aslam Khan v. State 1999 SCMR 172 ref.

Gulam Mustafa Khan Swati and M. Nasim Khan Swati for Appellant.

M. Nawaz Khan Swati, A.A.-G. for the State.

Shad Muhammad Khan for the Complainant.

Date of hearing: 9th May, 2012.

2012 P Cr. L J 1765

[Peshawar]

Before Dost Muhammad Khan, C.J. and Allan Fasih-ul-Mulk, J

GOVERNMENT OF PAKISTAN/FEDERAL GOVERNMENT through Deputy Attorney-General of Pakistan, Peshawar and 3 others---Petitioners

versus

OBAID KHAN and 12 others--Respondents

Writ Petition No.1770 of 2005, decided on 30th May, 2012.

Prevention of Smuggling Act (XII of 1977)---

----Ss. 43 & 47(1) & (2)---Constitution of Pakistan, Art. 199---Constitutional petition---Appeal before Special Appellate Court---Maintainability--- "Aggrieved person "---Definition---Scope---Allegation against the accused (respondent) was that he had purchased properties in his own name and in the names of his relatives through illegal resources i.e. smuggling of narcotics---Trial Court through its judgment only forfeited 40% shares invested in the properties in question to the Federal Government---Appeal filed against said judgment of the Trial Court was dismissed being not maintainable---Present constitutional petition had been filed by the Anti-Narcotics Force (petitioner) for setting aside the impugned judgments of the Trial Court and the Special Appellate Court and for ordering forfeiture of entire properties of the accused---Validity---Under S.47(1) of the Prevention of Smuggling Act, 1977, counsel for Anti-Narcotics Force was only a special prosecutor, authorized to appear before the Special Judge and had no authority to file appeal or appear before the Special Appellate Court as by virtue of S.47(2) of Prevention of Smuggling Act, 1977, only a law officer appointed under the Central Law Officers Ordinance, 1970, was competent to conduct proceedings before the Special Appellate Court---Anti Narcotics Force did not fall within the definition of "aggrieved person ", therefore, the impugned judgment of the Special Appellate Court required no interference---Constitutional petition was dismissed, accordingly.

Civil Petition No.667-P of 2003 ref.

Haji Iqbal Shah and 11 others' case 1999 PCr.LJ 1125 rel.

Tariq Khan Kakar for Petitioners.

Abdul Latif Yousafzai for Respondents.

Date of hearing: 30th May, 2012.

2012 P Cr. L J 1797

[Peshawar]

Before Nisar Hussain Khan and Qaiser Rashid Khan, JJ

ASAL JAN KHAN---Petitioner

versus

THE STATE through Additional Advocate-General, Bannu and 8 others---Respondents

Writ Petitions Nos.29-B, 169-B and 28-B of 2012, decided on 6th June, 2012.

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

----Ss. 302(b), 324, 76 & 80---Criminal Procedure Code (V of 1898), S.154---Qatl-e-amd, attempt to commit gatl-e-amd---Registration of criminal case against police-Protection to police---Scope---One person of complainant party was killed and three others were injured due to firing of Police/raiding party---Judicial Magistrate vide his order directed the S.H.O. concerned to register the case against the Police---Plea of Police party was that they having performed their official duties, their acts were protected under SS. 76 & 80, P.P.C.---Stance of respondents/Police party was that they raided the houses of petitioners/complainant party for arrest of the proclaimed offenders, wanted in some criminal cases and during the raid, the complainant party along with proclaimed offenders, made firing at them, in retaliation to which the Police party also made firing in their self­ defence---Not a single scratch was caused to any member of the raiding party, whereas one person was killed and three other sustained fire-arms injuries from the petitioner's side---Police party had not taken the plea that they had acted under the command of law by the order of their superiors; besides that it was a mixed question of law and fact, which could be raised during investigation and proved at the trial and could not be decided summarily---Exception provided under S.80, P. P. C., was also a mixed question of law and fact. which could only be resolved by the Trial Court after recording evidence---Both Ss.76 & 80, P.P.C. had provided protection in particular circumstances, which in the present case were yet to be established by the Police, objections of the counsel for the Police party, were not tenable in circumstances.

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

----Ss. 302(b) & 324---Criminal Procedure Code (V of 1898), S.154---Constitution of Pakistan, Art.199---Constitutional petition---Qatl-e­amd, attempt to commit qatl-e-amd---Registration of criminal case against the Police---Petitioners had sought issuance of a writ to District Police Officer and S.H.O. Police Station concerned, directing them to register a case against the Police/Raiding party---Counsel for the police raised preliminary objection on the maintainability of the constitutional petition on the ground that petitions were not maintainable as alternate remedy of complaint by virtue of Chapter XVI of the Cr.P.C., was available to the petitioners, which was not only adequate, but efficacious, as well---Validity---Said preliminary objection, qua the maintainability of the constitutional petition, was not sustainable in view of peculiar circumstances of the case--- Allegation had been made by S.H.O. against the petitioners and the deceased that they had made firing on the Police party, but none from the raiding party had sustained a single injury, while all the injuries were on the persons of the petitioners and his brother and one person had lost his life in the same incident---Constitutional petitions was allowed.

(c) Criminal Procedure Code (V of 1898)

---S. 154--- Constitution of Pakistan, Art. 199---Constitutional petition---Registration of case---Provisions of 5.154, Cr.P.C. had cast a statutory obligation on the S.H.O. concerned Police Station to register the case in a cognizable offence, when reported to him; he had no discretion to refuse registration of case on such report to keep it pending for an indefinite period---Registration of second F.I.R., in respect of different version, given by the aggrieved party about the same occurrence was not barred---S.H.O. was bound to register the F.I.R. on the reports of the aggrieved party, but he had failed to discharge his legal obligation---Every citizen had a fundamental right to have a protection of law and to be treated in accordance with law---Aggrieved persons though had got the remedy of filing a private complaint, but they had equally got the right for redressal of their grievance by State sponsored investigation and prosecution of the case---No justifiable reason was available for which the aggrieved party be pushed to file complaint, instead of seeking aid of State institutions for prosecution of their case---Constitutional petition was allowed.

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

----S. 22-A(6)---Constitution of Pakistan, Art. 199---Constitutional petition---Powers of Justice of Peace to issue direction to Police Authorities to register a criminal case---Petitioners had assailed the order of Justice of Peace, whereby their applications for registration of case were turned down on the ground that inquiry before the Judicial Magistrate being under way, after any adverse order passed by the Judicial Magistrate, they could approach the Justice of Peace, afresh---No statutory provision existed which could empower the Judicial Magistrate for issuance of the direction to the S.H.O. for registration of the case, as against that the Justice of Peace had been vested with the jurisdiction by virtue of S.22-A(6), Cr.P.C. for issuance of such direction---Justice of Peace, in view of statutory command, was on the high pedestal than that of the Judicial Magistrate, being armed with statutory powers---Justice of Peace was legally obliged to issue a direction for registration of the case, without waiting for the order of Judicial Magistrate, who had no such statutory powers to direct the S.H.O. for registration of the case---S.H.D. was directed for registration of the case accordingly.

Pir Liaqat Ali Shah and Farooq Khan Sokari for Petitioner.

Anwar-ul-Haq and Muhammad Rashid Khan Dirma Khel for Respondents.

Ahmed Farooq Khattak, A.A.-G. for the State.

Date of hearing: 6th June, 2012.

2012 P Cr. L J 1835

[Peshawar]

Before Qaiser Rashid Khan, J

THE STATE---Petitioner

versus

AHMED BAKHSH and others---Respondents

Criminal Miscellaneous Nos.331 and 332 of 2011, decided on 22nd May, 2012.

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

----Ss. 561-A' & 417---Limitation Act (IX of 1908), Art.157---Recalling of order and restoration of appeal---Appeal against acquittal filed by the State---Inherent powers of High Court under S.561-A, Cr.P.C.---Scope---Limitation period for filing such appeal was determined in oblivision to the law---Petition under S.561 A, Ct.P.C.---Scope---State (petitioner) had filed appeal against acquittal of the accused persons before the High Court, but same was dismissed on the account that prescribed period for filing such an appeal was thirty (30) days, therefore, appeal in question was barred by twenty-nine (29) days---Validity---Article 157 of the Limitation Act, 1908, provided a period of six months for filing State appeal from the date of order of acquittal and not thirty days as held in the impugned order---Where the impugned order was prima facie, pasted either on account of lack of assistance rendered to the court or due to confusion or accidental slip, but for no fault on part of the petitioner, then S.561-A, Cr.P.C., must come to its rescue to secure the ends of justice--- Impugned order of the High Court was recalled, appeal against acquittal was restored to its original number and condonation of delay in filing appeal against acquittal was allowed to the petitioner in view of the peculiar circumstances of the case.

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

----S. 561-A---Inherent power of the High Court---Scope---High Court is empowered even to correct its own order or to recall an erroneous order in exercise of its inherent jurisdiction under S.561-A, Cr.P.C.

Gul Muhammad and others v. The State 1999 SCMR 2765 rel. Saleem Ullah Khan Ranazai for Petitioner.

Ghulam Hur Khan Baloch and Rehmatullah Khan for Respondents.

Date of hearing: 22nd May, 2012.

2012 P Cr. L J 1858

[Peshawar]

Before Waqar Ahmad Seth, J

AMEER ULLAH---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous (BA) No.787 of 2012, decided on 29th June, 2012.

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

----S. 497---Foreign Exchange Regulation Act (VII of 1947), Ss. 4 & 23---Unauthorized dealing in foreign exchange---Bail, grant of---Allegation against the accused was that he was operating a "hundi/hawala" business and in this respect related documents along . with huge amounts of foreign and local currency was recovered from him---Contentions of the accused were that no independent witness had been associated to the recovery memo; that the offence for which the accused was charged was punishable up to two years or fine or both and in such like cases bail was a rule and its refusal an exception; that the investigation in the case was complete and the accused was no more required for the purpose of investigation, and that the accused was a first time offender---Validity---Nothing on record showed that the accused was the exclusive owner/director of the company/alleged business--- Raid was conducted upon a report against the accused's father and it was yet to be seen whether the accused was involved actively in the business or was just a visitor at the place owned by his father at the time of the raid---Case against the accused did not fall within the prohibitory clause of S.497, Cr.P.C.---Accused was a first time offender---Prosecution had not shown that the accused was further required for any investigation---Bail application of the accused was allowed and he was released on bail.

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

----S. 497-Bail-Case not falling within the prohibitory clause of S.497, Cr.P.C.---Effect---Where a case fell within the non prohibitory clause, the concession of grant of bail must be favourably considered and should only be declined in exceptional cases.

Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488 rel.

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

----S. 497---Bail---When an offence was punishable with imprisonment or fine or both, accused should be entitled to bail as of right because if at the trial he was only sentenced with fine, period as undertrial prisoner due to refusal of bail would amount to a case of double jeopardy.

Mukhtiar Ali for Petitioner.

Javed Ali for the State.

Date of hearing: 29th June, 2012.

2012 P Cr. L J 1867

[Peshawar]

Before Qaiser Rashid Khan, J

MUHAMMAD HANIF and 4 others---Petitioners

versus

THE STATE and 9 others---Respondents

Criminal Petition No.9 of 2012, decided on 20th February, 2012.

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

---Ss. 22-A & 561-A---Penal Code (XLV of 1860), Ss.458/380/506/ I48/149---Lurking house-trespass or house-breaking by night after preparation for hurt, assault or wrongful restraint, theft in dwelling house etc., criminal intimidation, rioting armed with deadly weapons, unlawful assembly---Petition for quashment of F.I.R. and orders of Justice of Peace and Sessions Judge---Complainant (respondent) had filed an application under S.22-A, Cr.P.C., before the Justice of Peace for registration of case against the accused persons (petitioners), which application was accepted and F.I.R. was registered---Justice of Peace directed the police to arrest the accused persons and recover the stolen animals---Police Al not comply with the orders of the Justice of Peace and on different occasions recommended the cancellation of the case--Sessions Judge also issued several directions to the local police for compliance of court orders and held that in case of non-compliance, legal action would be taken against the police officials---Contentions of the accused persons were that a thorough probe was made by the police into the matter and conclusion was reached that no offence was committed by the accused persons, and that from the contents of the application under S.22-A, Cr.P.C., moved by the complainant, no offence was made out---Validity---Perusal of the record revealed that impugned orders of the Justice of Peace and Sessions Judge and the registration of the F.I.R. were the result of proper appraisal of evidence brought on the record---Police was initially , reluctant to register the case against the accused persons---Although the police had recommended the cancellation of the case, but the opinion of the police was not binding on the court---Police officials had been found to be openly flouting the various orders of the courts below---Available facts and circumstances of 'the case, prima facie, linked the accused persons with the commission of the offence---Petition was dismissed, in circumstances.

Abdul Qadoos and another v. Sarwar Khan and 2 others 2009 PCr.LJ 1106 ref.

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

----S. 561-A---Inherent powers of High Court---Adjudging guilt or otherwise of the accused in such power---Scope---Trial Court had the job of adjudging the guilt or otherwise of the accused after recording pro and contra evidence and considering arguments of the parties---High Court, in its inherent powers, was not supposed to exercise such powers when from the available facts and circumstances of the case, a cognizable offence had been allegedly committed by the accused.

Bahadur Khan Marwat for Petitioners.

Sanaullah Shamim, D.A.-G. for the State.

Jehanzeb Ahmed Chughtai for the Complainant.

Date of hearing: 20th February, 2012.

2012 P Cr. L J 1883

[Peshawar]

Before Assadullah Khan Chamkani, J

KHAN ZADA---Petitioner

versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Application No.928-P of 2012, decided on 6th August, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324/34---Attempt to commit qatl-e-amd, common intention---Bail, grant of---Further inquiry---Injury on non-vital part---Abscondment of accused---Effect-Accused and co-accused persons were alleged to have fired at the complainant with the intention to kill him---Accused persons were charged with indiscriminate firing upon the complainant, who received only a single injury on his leg (non-vital part)---No spent bullet was recovered from the spot---No recovery was made from the place of incident---Accused would have selected a vital part of body if he had any intention to kill the complainant---Bail could not be refused to accused merely because of his abscondment, if otherwise his case was arguable for the purpose of bail---Accused was granted bail, in circumstances.

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

----S. 497---Bail---Type of weapon used in commission of offence---Tentative assessment---Scope---Court had to tentatively assess as to what type of weapon accused was wielding at the time of occurrence i.e. whether it was dangerous, lethal or was of a very low velocity---Use of fire arm in committing a crime in ordinary circumstances was associated with intention to kill but all the material available on record must be clearly seen because liberty of a person was always involved in bail matters.

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

----S. 497---Bail---Injury on non-vital part of body:--Significance---Where injury caused to the victim is not on vital part or is not dangerous, then, ordinarily bail is granted to the accused in the absence of strong exceptions.

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

----S. 497---Bail---Commencement of trial---Effect---Where an accused was entitled to bail on merits then factum of commencement of trial would not constitute any legal bar to the grant of bail.

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

----S. 497---Bail---Abscondment---Effect---Bail could not be refused to an accused merely on the point of his abscondence, if otherwise his case was arguable for the purpose of bail.

Ishtiaq Ibrahim for Petitioner.

Naveed Akhtar for the State.

Tariq Yousafzai for the Complainant.

Date of hearing: 6th August, 2012.

2012 P Cr. L J 1901

[Peshawar]

Before Assadullah Khan Chamkani, J

NOSHAD---Petitioner

versus

THE STATE---Respondent.

Criminal Miscellaneous No. 846-P of 2012, decided on 30th July, 2012.

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

----S. 497--- Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotic---Bail, grant of---Quantum of sentence to be considered---Scope---Contention of the accused was that in view of the quantity of substance recovered, he was not likely to be awarded the maximum sentence provided by the statute---Validity---Award of maximum sentence to the accused for possessing four kilograms of charas was doubtful---Court while hearing bail petition was not supposed to keep in mind the maximum sentence provided by the statute but the one which was likely to be entailed by the facts and circumstances of the case, especially, when the ultimate conviction, if any, could repair the wrong caused by the mistaken relief of bail---Accused was allowed bail, in circumstances.

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

----S. 9---Possession of narcotic---Sentence---Quantum---Scope---Quantum of sentence had to be commensurate with the quantum of substance recovered.

Mehboob Ali Khan Khalil for Petitioner.

Miss Shazia Naureen for the State.

Date of hearing: 30th July, 2012.

2012 P Cr. L J 1918

[Peshawar]

Before Mian Fasih-ul-Mulk and Waqar Ahmad Seth, JJ

ZAKAULLAH---Appellant

versus

THE STATE and others---Respondents

Criminal Appeal No.290 and Criminal Revision No.63 of 2010, decided on 13th June, 2012.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Dying declaration---Requirements---Case of prosecution, besides the statement of father of deceased, was mainly dependant upon the F.I.R.-cum-dying declaration which had been recorded by Police Officer in presence of a Doctor---Scribe of report and the Doctor, though in their oral statements had stated that injured was in a position to record his statement, but neither the Police Officer had asked the Doctor to give a certificate in that regard, nor the Doctor of his own deemed it proper to do so---Both the witnesses including the father of deceased in their statements had stated that report of deceased, then injured, was recorded in the presence of the relatives of the deceased---As father of deceased along with other relatives was present at the time of recording statement of deceased, then injured, there was every chance of tutoring or prompting of the deceased by the complainant party to name the accused for the crime, if it was presumed that the injured was able to make the report---Dying declaration was further predominant to the fact that no time of the occurrence had been given, by the injured in his report---Doctor had not mentioned the time in the report as to when he examined the deceased---Actual time of occurrence, in circumstances, was shrouded in mystery along with place of occurrence---Neither any empty was recovered nor any blood from the place of incident as alleged by the prosecution---When the parties were involved in previous blood enmity, accused could not dare to come to the house of deceased, knock at the door of his house, exchange hot words with him, and then take out his pistol and fire only one shot pt him---Dying declaration of deceased was not worth reliance; and other circumstantial evidence did not provide independent corroboration to the guilt of accused---Even a single circumstance of doubt arising in the case of prosecution was sufficient for acquittal of accused---Conviction of accused and awarding him life imprisonment, on such impeachable evidence, would be highly unsafe keeping in view the principles of safe administration of justice---Extending benefit of doubt to accused, impugned judgment of the Trial Court, was set aside; he was acquitted of the charge levelled against him and he was set free, in circumstances.

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

----Art. 46--- Dying declaration--- Scope--- Where making of dying declaration was not subjected to cross-examination and it was for the court to see that dying declaration inspired full confidence; that court should satisfy that there was no possibility of tutoring; prompting and that court should be satisfied that the deceased was in a fit state of mind to make' the statement---Dying declaration was to be accepted on the theory that person on death bed would speak the truth---Great caution must be exercised in considering the weight to be given to that kind of evidence on account of the existence of many circumstances which could, affect its truthfulness---Since accused had no occasion of cross-examination, the court, should insist that dying declaration should be of such a nature as to inspire full confidence of court in its truthfulness and correctness---Court should also see that statement of deceased was not result of either tutoring or prompting or a product of imagination; and that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant---Dying declaration recorded at Police Station in presence of relatives of the deceased, would not be worthy of credence and reliability of such dying declaration would also become doubtful.

Nazim Khan and 2 others v. The State 1984 SCMR 1092 rel.

?Barrister Zahurul Hach for Appellant.

Danial Chamkani for the State.

Khawaja Muhammad Khan Gara for the Complainant.

Date of hearing: 13th June, 2012.

2012 P Cr. L J 1934

[Peshawar]

Before Waqar Ahmad Seth, J

AZIZUR REHMAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Bail Application 241-P of 2012, decided on 16th March, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)--- Emigration Ordinance (XVIII of 1979), Ss. 18-B & 22-B---Fraudulently inducing to emigration---Receiving money for providing foreign employment---Bail, grant of---Further inquiry---Accused was alleged to have extorted money from complainants on the pretext to provide them visa and work permit for abroad---Accused, in that respect executed agreement deeds and received Bank cheques for certain amount, but it did not show the factum of sending the said persons abroad or to provide work permit to them---Agreement deeds and bank cheques were available on record, but in order to prove the same, it would require recording of evidence, which was not the job of High Court to enter upon---Available material reflected that it was a case of civil liability, which could be resolved after recording evidence---Even otherwise offences under Ss.18-B & 22-B of the Emigration Ordinance, 1979 provided alternate punishment of fine; same did not fall within the prohibitory limb of S.497, Cr.P.C. which made the case of accused as of further inquiry.

Arshad Hussain for Petitioner.

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

Date of hearing: 16th March, 2012.

2012 P Cr. L J 1956

[Peshawar]

Before Qaiser Rashid Khan, J

Makhdoomzada ABDUL KARIM---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No.88-D of 2012, decided on 4th May, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, refusal of---Right of accused to bail in cases not falling within the prohibitory clause of S.497, Cr.P.C.---Scope---Habitual offender---Effect---Accused was alleged to have fraudulently deprived the complainant from his pension amount by obtaining the same as loan and executing in return two pro notes and a cheque from his account---Said cheque was dishonored as the account was already closed---Contentions of the accused were that the dispute between the parties was purely of a civil nature; that the offence did not fall within the prohibitory clause of S.497, Cr.P.C. and that the complainant had remained silent for an unexplained period of about five months before submitting the report to the police---Validity---Cheque issued by the accused had been dishonored as the account was found already closed---Mere execution of two pro notes by the accused favouring the complainant could not debar the latter from having recourse to the penal sections of law for redressal of his grievance---Rule that accused would be entitled to bail as a matter of right for offences not falling within the prohibitory clause of S.497, Cr.P.C., was not a rule of universal application because each case had to be thrashed out on the basis of its own facts and circumstances---Accused was a habitual offender having issued similar cheques to other people as well and was facing prosecution in seven different cases---Application for grant of bail was dismissed in circumstances.

2002 SCMR 442 and 2008 SCMR 807 rel.

Saifur Rehman Khan for Petitioner.

Sanaullah Shamim, D.A.-G. for the State.

Ahmad Ali Khan Marwat for the Complainant.

Date of hearing: 4th May, 2012.

2012 P Cr. L J 33

[Balochistan]

Before Muhammad Noor Meskanzai and Naeem Akhtar Afghan, JJ

MICHAEL NAZIR and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeals Nos. 86 and 89 of 2006, decided on 15th September, 2011.

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

----Ss. 302(b) & 324---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Qatl-e-amd, attempt to commit qatl-e-amd and terrorism---Appreciation of evidence---Prosecution version, seemed to be absolutely true for genuine and valid reasons---Prosecution evidence was consistent, straightforward confidence-inspiring, corroborative to each other and flawless---No ambiguity or doubt was noticed in the prosecution case qua the commission of offence by accused---Medical evidence, recovery of firearm from the possession of accused, positive report of Ballistic Expert, corroborated the ocular account---Accused claimed that he had been booked in the case not because he had committed any offence, but because he had embraced Islam---Stand taken by the defence was not acceptable for the reasons that prosecution evidence had proved the fact that accused had fired upon deceased and injured prosecution witnesses; that as a consequence of the firing made by accused, two persons sustained bullet injuries and died instantaneously, whereas two prosecution witnesses sustained bullet injuries; that motive as set up by the defence, was neither plausible nor probable; that despite weakness of motive, defence had failed to prove the motive so agitated---Stance of defence, in view of overwhelming evidence, baseless, preposterous and nothing more than a cobweb---Accused, in the light of material on record had committed the preplanned, wilful, intentional and cold-blooded murder of two innocent, harmless and helpless persons, beside causing the firearm injuries to two prosecution witnesses---Appeal filed by accused was dismissed, in circumstances.

Zahid Imran and others v. The State PLD 2006 SC 109 rel.

(b) Words and phrases---

----'Intention'---Meaning of.

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

----Ss. 302(b) & 324---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Qatl-e-amd, attempt to commit qatl-e-amd and terrorism---Sentence, enhancement of---Intention---Scope---Trial Court had proposed lesser punishment on the ground of lack of mens rea---Criminal intention must exist to constitutie a crime---"Intention" did not imply or assume the existence of some previous design or forethought but could be proved by or inferred from the act of accused and circumstances of the case---Continuous firing by accused who was an educated person and fully aware of the consequences of his act, was reflective of his intention---Unprovoked act of firing by accused on the vital part of deceased persons, led to irresistible conclusion that accused intended to cause the death of the victims---Evidence produced by the prosecution was straightforward, confidence-inspiring, cogent, consistent, unimpeachable, unshaken and had brought home the charge against accused to the hilt---Evidence did not suffer from any infirmity---In such state of affairs it was beyond imagination to conclude that no 'mens rea' or intention was on the part of accused---Conclusion of the Trial Court regarding non-availability of "mens rea" or lack of intention to commit the murder of deceased persons having no basis and foundation, was rejected in circumstances---No reasons existed which could justify a sympathetic, a lenient or concessional treatment for accused---In absence of any mitigating and extenuating circumstances justifying the imposition of lesser punishment, sentence of life imprisonment awarded to accused was converted to that of death sentence.

Zahid Imran and others v. The State PLD 2006 SC 109; Manzoor Ahmed v. The State 1999 SCMR 132; Muhammad Tahir Aziz v. The State 2010 PCr.LJ 1787; Nabi Bakhsh v. The State and another 1999 SCMR 1972; 1998 SCMR 862; PLD 1976 SC 452; Muhammad Aslam v. The State PLD 2006 SC 465 and PLD 2006 SC 354 rel.

Mrs. Shabana Azeem for pauper Appellant (in Criminal Appeal No. 86 of 2006).

Abdul Sattar Durrani Additional Prosecutor-General for Respondent (in Criminal Appeal No. 86 of 2006).

Abdul Sattar Durrani, Additional P.-G. for Appellants (in Criminal Appeal No. 89 of 2006).

Mrs. Shabani Azeem for Respondents (in Criminal Appeal No. 89 of 2006).

Date of hearing: 8th August, 2011.

2012 P Cr. L J 109

[Balochistan]

Before Muhammad Noor Meskanzai and Naeem Akhtar Afghan, JJ

JANGI KHAN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 288 of 2007, decided on 18th July, 2011.

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

----Ss. 6 & 9(c)---Qanun-e-Shahadat (10 of 1984), Art. 40---Possessing and smuggling of narcotics---Appreciation of evidence---Both accused persons, who respectively were driver and conductor of the bus wherefrom narcotic was recovered, disclosed information regarding secret cavities of the bus where the same was concealed---Such disclosure followed by the recovery, could be used against accused persons within the meaning of Art. 40, Qanun-e-Shahadat, 1984---Prosecution had successfully proved the recovery of contraband items from the bus in question---Accused had not entered into witness box to record their statements under S. 340(2), Cr.P.C. nor they had produced any defence witness---Accused in statements under S. 342, Cr.P.C. did not dispute said recovery, except lack of knowledge on their part---Since accused were driver and conductor of the bus, they were under legal obligation to have satisfied the conscious of the court by creating reasonable circumstances justifying that both of them were in fact not aware of concealment of contraband items as they figured only when the bus was ready for departure---Accused had failed to attract any circumstances to create a doubt in the case of the prosecution qua their involvement---If the conscious of the court was satisfied regarding involvement of accused, then the technicalities were to be avoided---Accused were not the owners of the bus in question, but the liability within the ambit of S.6 of Control of Narcotic Substances Act, 1997, would extend to a person who was in possession of contraband items---Case of accused persons fell within the four corners of S.6 of Control of Narcotic Substances Act, 1997---Recovery from the secret cavities of the bus was effected at the pointation of both accused persons---No evidence was offered on the part of accused persons to indicate that they had no nexus with the bus---Accused did not even bother to enter in the witness box to confirm or substantiate their version that they had no nexus and concern with the bus---In view of overwhelming evidence of prosecution, it was not only difficult, but impossible to believe that accused had no knowledge of contraband items---Non-production of bus before the court was not fatal to the prosecution case as accused had admitted their presence in the bus as well as recovery of contraband from the bus---Case against accused persons, in circumstances, had fully proved and they were rightly convicted and sentenced, in circumstances.

MLD 2009 Pesh. 122; MLD 2000 Quetta 618; YLR 2009 Kar. 1724; 2009 SCMR 431; 2002 PCr.LJ 1086 and Appeal No. 226 of 2006 titled as Hafeezullah and another v. The State ref.

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

----Art. 40---Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)---Recovery of narcotic on information of accused---Such disclosure of information followed by recovery could be used against accused persons within the meaning of Art. 40, Qanun-e-Shahadat 1984.

Shah Muhammad Jatoi for Appellants.

Shoukat Ali Rakhshani, Special Prosecutor, A.N.F. for the State.

Date of hearing: 20th June, 2011.

2012 P Cr. L J 164

[Balochistan]

Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ

SHAFI MUHAMMAD and another---Appellants

Versus

THE STATE---Respondent

Criminal Review Applications Nos. (S)3 and 4 of 2011 in Criminal Appeals Nos.3 and 4 of 2011, decided on 22nd September, 2011.

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

----S. 369---Alteration or review of judgment---Scope---"Alter" or "review"---Connotation---Provisions of S.369, Cr.P.C. had precluded the court of criminal jurisprudence to alter its judgment after it had been written, signed and pronounced, except to correct a clerical error---Such principle would apply to the judgments given by any court, including the High Court, in exercise of its criminal original jurisdiction---Words "alter or review" in S.369, Cr.P.C., connoted reversing an order of allowing the appeal or dismissing the same and would also include reduction or enhancement of the sentence ordered in the judgment sought to be reviewed---Contention that order sought to be reviewed did not qualify to be a final judgment, was repelled as the word 'judgment' in S.369, Cr.P.C. would include "any order which would tend to dispose of the matter finally."

Iqbal v. The State and another 2001 PCr.LJ 1634; Maulana Muhammad Azam Tariq, MNA v. Khursheed Ali and another 1996 PCr.LJ 119; Pir Sultan Ahmed v. Haji Abdul Hameed and another PLD 1980 Kar. 294 and Juan Sullivan v. The State 1971 SCMR 618 ref.

Shah Nazar Khan and 6 others v. Goga Khan and 5 others 2005 YLR 3297 rel.

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

----Ss. 561-A & 369---Inherent jurisdiction of High Court---Scope---Provisions of S.561-A, Cr.P.C., conferred inherent powers upon High Court to make such orders as could be necessary to give effect to any order under Criminal Procedure Code, 1898; or to prevent abuse of the process of any court or, otherwise to secure the ends of justice---Section 561-A, Cr.P.C. would not give any power to alter the order passed by the court---Section 369, Cr.P.C., specifically mentioned that no court, when it had signed its judgment, would alter or review the same---Power of review could only be exercised for the specific purpose of correcting any error, which, prima facie, appeared on the surface of the record; and could be deleted without a further elaborate inquiry or investigation.

PLD 1970 Kar. 737 rel.

Kamran Murtaza for Appellant.

Abdullah Kurd, Additional Prosecutor-General for the State.

Date of hearing: 18th August, 2011.

2012 P Cr. L J 178

[Balochistan]

Before Abdul Qadir Mengal and Jamal Khan Mandokhail, JJ

Haji ALLAH NAZAR and others---Petitioners

Versus

SPECIAL JUDGE ANTI-TERRORISM COURT-II, QUETTA and others---Respondents

C.Ps. Nos. 601 and 616 of 2011, decided on 27th September, 2011.

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

----Ss. 6, 7 & 28---Penal Code (XLV of 1860), Ss. 427/109, 447, 147, 148 & 149---Mischief causing damage to the amount of five lac rupees, criminal trespass---Transfer of case to ordinary court---Offences against accused were of simple nature like trespass or damage to a property of the opponent, which were punishable not more than two years---Record had shown that a dispute of personal nature existed between the parties for the determination of ownership of leased area---For cases of terrorism, falling under Ss.6 & 7 of the Anti-Terrorism Act, 1997, there must be not only Scheduled Offence under S.6 of the Anti-Terrorism Act, 1997, but also mens rea for creating intentional sense of terror or fear or insecurity in the society---Cases having background of personal enmity and taking private revenge, did not fall within the ambit of Ss.6 & 7 of the Anti-Terrorism Act, 1997---Special Judge, was not justified to reject application of accused for sending matter to the Court of Sessions Judge---Order of Special Judge was illegal as matter in question was within the domain of the regular courts---Cases were ordered to be withdrawn from the court of Special Judge and transferred to the court of Judicial Magistrate concerned for disposal in accordance with law, in circumstances.

Muhammad Wassay Tareen and Abdul Wadood Khan for Petitioners (in C.P. No. 601 of 2011).

Abdul Wadood Khan for Petitioners (in C.P. No. 616 of 2011).

Atiq Ahmed Khan, D.P.-G. for Respondents (in both Petitions).

Date of hearing: 8th September, 2011.

2012 P Cr. L J 226

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

FIDA HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 38 of 2011, decided on 16th November, 2011.

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

----S. 13(e)---Possessing unlicensed arms---Appreciation of evidence---Accused had been acquitted in the main case of 'Haraabah', and present case was an off-shoot of the main case---Accused, in circumstances, was entitled to be acquitted in the present case---Complainant himself was an Investigating Officer in both the cases and the Trial Court had disbelieved his evidence in the cases, but despite that accused was convicted and sentenced on the basis of same evidence---F.I.R. figured the allegation of encounter with Police party and all the matters were investigated by Naib Tehsildar who lodged the F.I.R., prepared the recovery memos, site plan and recorded the statements of the witnesses, which was not warranted under the law---Prosecution witnesses had stated that many people gathered at the site, but Investigating Officer did not make efforts to cite anyone of them as witness in order to testify the recovery of arms and ammunitions from the possession of accused---Mandatory provisions of S.103, Cr.P.C., in circumstances, had been violated, as no explanation was available on the record as to why the witnesses from the public were not associated with alleged recovery---In absence of such evidence, including the report of Forensic Science Laboratory, conviction and sentence awarded to accused by the Trial Court, was not justified---Impugned judgment of the Trial Court, convicting and sentencing accused, was set aside, in circumstances.

Ch. Muhammad Yaqoob v The State 1992 SCMR 1983 rel

Abdul Ghani Mashwani for Appellant

Abdul Kareem Malghani, A.P.-G for the State

Date of hearing: 14th November, 2011.

2012 P Cr. L J 281

[Balochistan]

Before Muhammad Hashim Khan Kakar and Muhammad Noor Meskanzai, JJ

Mst. KHAN BIBI and others---Appellants

Versus

ABDUL MALIK and others---Respondents

Criminal Acquittal Appeals Nos. 151 of 2007 and 221 of 2008, decided on 27th October, 2011.

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

----Ss. 302/147/148 & 149---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-e-amd---Appeal against acquittal---Appreciation of evidence---Prosecution witnesses who were not only chance witnesses, but had also made dishonest improvements in order to strengthen the case of prosecution had failed to inspire confidence---F.I.R. had been lodged on the basis of suspicion, without nominating respondent/accused---Presence of the accused persons, while armed with sticks, though was shown at the place of occurrence by alleged eye-witnesses, but circumstances had belied the same and there was clash between the ocular and medical evidence---All the alleged eye-witnesses were closely related to the deceased and they had failed to account for their presence at the time and place of alleged incident---Mere relationship with the deceased by itself though was not sufficient to discard their evidence, but the court always look for independent corroboration---In the present case, the claim of the witnesses to have seen the occurrence was not only a tall claim, but was enough to create serious doubts about its genuineness---Claimed presence of said eye-witnesses at the place of occurrence at relevant time was replete with serious doubts---Prosecution had failed to prove the motive---Conduct of alleged eye-witnesses at the time of incident was not normal, as they had not tried to save the life of deceased and they had also not tried to catch the culprits---Conduct exhibited by said witnesses was offensive to normal human behaviour---Evidence of said witnesses could not be believed---Findings and conclusions of the Trial Court through judgment whereby accused were acquitted of the charge, could not be interfered with.

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

----S. 302/147/148---Qatl-e-amd---Appreciate of evidence---Motive---Prosecution, no doubt, was not required to disclose or set up a motive, but once it chose to do so, then it would become its obligation to prove the same by cogent and confidence inspiring evidence---Failure in doing so would not only damage the credibility of the prosecution's case beyond repair, but it would also be fatal for that.

Muhammad Qahir Shah for Appellants (in both cases).

Ali Hassan Bugti, Obaidullah Quresh and Abdul Sattar Durrani, Deputy Prosecutor-General for Respondents.

Date of hearing: 12th October, 2011.

2012 P Cr. L J 288

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

Haji REHMATULLAH and another---Petitioners

Versus

THE STATE---Respondent

Criminal Quashment Nos. 20 and 21 of 2011, decided on 15th November, 2011.

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

----Ss. 22-A & 561-A---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Registration of case---Powers of Justice of Peace---Scope---Powers had been given to Justice of Peace under S.22-A, Cr.P.C. to direct the Police Officials to record the statement in the prescribed register, if a cognizable offence was made out---Said powers were very limited, and while exercising such powers, Justice of Peace should not enter into disputed question of facts to find out the truth---Justice of Peace, in appropriate cases, depending upon the circumstances thereof, could refuse to issue a direction regarding registration of F.I.R. and dismiss the complaint but it was not expected and required to allow the request of complainant mechanically, blindly and without application of legal mind---Justice of Peace, in the present case, had passed impugned order in a slipshod manner without any reference to the unnatural death of deceased who was killed by accused persons without any justification and legal authority---If the vehicle in question was not stopped by the injured, the F.C. personnel could have targeted the tyres of the vehicle in order to intercept the same---No one could be allowed to take the law in his own hands and start awarding punishment to the culprits instead of taking them to the competent court of law---Tehsildar concerned was legally bound under S.154, Cr.P.C. to record the statement of complaining person in the prescribed register---Justice of Peace had not given valid reasons for his conclusion to dismiss the application of complainant and his order was perverse, arbitrary and was in complete negation of law which was set aside with direction to the Tehsildar concerned to register F.I.R. against the accused and proceed with the matter in accordance with law.

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

----S. 154---Information in cognizable cases---If information related to the commission of a cognizable offence, same would fall under S.154, Cr.P.C. and the Police Officer was under statutory obligation, without entering into inquiry and without hearing the accused person, to enter it in the prescribed register---Only precondition needed for such exercise was that the information should disclose a cognizable offence on the face of the allegations---Failure of the concerned Police Officer to register a complaint, so made, would amount to failure to discharge statutory obligation.

Muhammad Riaz Ahmed for Petitioners (in both Criminal Quashment Petitions)

Abdul Karim Malghani along with Ghulam Mustafa Raisani, Tehsildar Taftan for the State (in both Criminal Quashment Petitions)

Date of hearing: 11th November, 2011.

2012 P Cr. L J 303

[Balochistan]

Before Mrs. Syeda Tahira Safdar and Muhammad Noor Meskanzai, JJ

MUHAMMAD ILYAS---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 211 of 2010, decided on 27th October, 2011.

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

----Ss. 9(c) & 29---Possessing and trafficking narcotics---Appreciation of evidence---Narcotics substance was recovered from the vehicle which was in control of accused being its driver and owner---Accused had not denied the recovery from the vehicle while he was driving the same; in view of such admitted position, contradictions and improvements in the statements of the prosecution witnesses, were of less consideration---Legal presumption of the offence, would be against the accused as provided under S.29 of Control of Narcotic Substances Act, 1997---Accused claimed his innocence on the basis of the admission made by co-accused, while replying to the charge---Such fact was less beneficial to accused as co-accused only admitted his guilt to the extent of four Kgs of Hashish, while he showed his no concern with the remaining narcotic---Recovery of 25 Kgs Charas was an established fact, but accused had no explanation about the remaining 21 Kgs, of the contraband---Accused had to be accounted for the remaining 21 Kgs. narcotics substance, recovery of which from the vehicle was an established fact---Accused, in circumstances, had completely failed to make out any case in his favour---Sentence awarded to accused by the Trial Court, was upheld, in circumstances.

Bashir Ahmed Qazi for Appellant

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

Date of hearing: 20th April, 2011.

2012 P Cr. L J 322

[Balochistan]

Before Naeem Akhtar Afghan and Muhammad Noor Meskanzai, JJ

KHAN MUHAMMAD and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Jail Appeal No. 50 of 2005 and Murder Reference No. 10 of 2005, decided on 15th September, 2011.

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

----Ss. 302(b), 324, 337-A(iv) & 337-X---Qatl-e-amd, attempt to commit qatl-e-amd, causing Shajjah-i-Munaqqilah---Appreciation of evidence---Occurrence had taken place inside the house and inmates of the house were the natural witnesses---Material prosecution witnesses remained consistent and had not been shaken during cross-examination---Ocular evidence was fully supported and corroborated by unchallenged medical evidence; and was further corroborated by the recovery of Kalashnikov from possession of accused at the time of his arrest, recovery of empties, lead bullet and positive report of Fire Arms Expert---Circumstantial evidence lent further corroboration to the ocular testimony---Relationship of a witness with any of the parties would not discard his testimony as mere relationship of a witness was no ground for discarding his evidence, if he otherwise appeared to be truthful and his presence at the place of occurrence was established---Recovery of Kalashnikov from the possession of accused at the time of his arrest was fully supported by prosecution witnesses; and the positive report of Fire Arms Expert confirmed the fact that said Kalashnikov was used in the commission of the offence---Accused who was residing in the same house, being younger brother of deceased, there was no question of mistaken identity---Motive of occurrence which was a dispute of ancestral property, had not been denied by accused---Accused in a callous and brutal manner, had caused cold-blooded murder of his real brother and his nephew and caused serious injuries to his niece---Prosecution had proved the charge against accused under Ss.302, 324, P.P.C. upto the hilt and defence had absolutely failed to cause any dent in the prosecution case---Accused deserved no leniency and no mitigating circumstances were available to award him lesser punishment---Conviction awarded to accused by the Trial Court vide impugned judgment was upheld, in circumstances.

Ijaz Ahmed v The State 2009 SCMR 99; Faisal Mehmood v The State 2010 SCMR 1025; Jawed Malik v. The State 2005 SCMR 49; Hamid Mukhtiar v Muhammad Azam 2005 SCMR 427 and Zahid Imran v. The State PLd 2006 SC 109 rel

(b) Criminal trial---

----Sentence---Court owed duty to the legal heirs/relations of the victim and also to the society, sentences awarded be such, which should act as deterrent to the commission of the offence---Approach of the court should be dynamic and if the court was satisfied that the offence had been committed in the manner as alleged by the prosecution, the technicalities should be overlooked without causing any miscarriage of justice.

Kamran Murtaza for Appellant (in both Appeals)

Abdul Sattar Durrani, Additional P-G for the State (in both Appeals)

Khalid Ahmed Kubdani for the Complainant (in both Appeals)

Date of hearing: 8th September, 2011.

2012 P Cr. L J 357

[Balochistan]

Before Abdul Qadir Mengal, J

SHAUKAT---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 110 of 2010, decided on 2nd August, 2011.

Penal Code (XLV of 1860)---

----S. 394---Robbery---Appreciation of evidence---Investigating Officer had detained the complainant at the Police Station for about two hours, till the complainant prepared a written report implicating the accused in the case, on which the F.I.R. was lodged---Investigating Officer, thus, was interested in conviction of accused---Prosecution had withheld and not produced the important witness, brother of the complainant, who had been deprived of his cash and other valuables during the alleged incident of robbery---No recovery of any robbed article or weapon of offence had been effected from the accused to corroborate or support the prosecution version---Place of incident being already in the knowledge of the police, disclosure memo also did not support the prosecution case---Mere pointation of the place of occurrence not leading to any recovery was nothing but a futile exercise---Accused was acquitted in circumstances.

2007 YLR 924; PLD 1971 SC 541 and 2001 SCMR 1405 rel

Abdul Razzaque Shar for Appellant

Abdul Karim Malghani for the State

Date of hearing: 29th July, 2011.

2012 P Cr. L J 392

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

AMANULLAH and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 43 of 2011, decided on 30th August, 2011.

Explosive Substances Act (XI of 1908)---

----Ss. 4 & 5---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Appreciation of evidence---Benefit of doubt---Explosive material, arms and ammunition were allegedly recovered from the accused, for which they could not produce any licence---Prosecution evidence had many contradictions and discrepancies--- Recovery witnesses had contradicted each other on material aspects of the case---No site plan of the place of occurrence had been prepared by the police---Whole prosecution story was based on mala fides and dishonest intention---Expert opinion about the recovered material was not proved to have been given by the experts appointed by the Provincial or Federal Government, as required by S.510, Cr.P.C.---No Bomb Disposal Technician or Crises Management Officer had been examined by the prosecution to prove the authenticity and legality of the said certificate---Prosecution had not only failed to prove the alleged incriminating recoveries from the accused, but had also failed to prove its case beyond any shadow of doubt---Accused were acquitted in circumstances.

Nouroz Khan Mengal for Appellants.

Abdul Ghias Nousherwani, P.-G. for the State.

Date of hearing: 30th August, 2011.

2012 P Cr. L J 415

[Balochistan]

Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ

MEHBOOB---Appellant

Versus

THE STATE---Respondent

ATA Criminal Appeal No.(S) 4 of 2011, decided on 11th August, 2011.

Penal Code (XLV of 1860)---

----S. 365-A/34---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Abduction, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution, could not produce tangible evidence in support of the charge against accused, connecting him with the commission of the offence---Alleged abductee, being star witness of the prosecution had not uttered a single word against accused and could not identify him as one of the culprits---Accused had been convicted and sentenced on the sole evidence of father of alleged abductee who could also not identify accused before the court---Father had simply deposed that he was informed by his son/alleged abductee that accused was involved in his abduction---Neither alleged abductee had been recovered from the custody/possession of accused, nor any evidence had been brought on record to establish that house, wherefrom alleged abductee was allegedly recovered, belonged to accused---Accused had been convicted and sentenced on the sole basis of similarity of name by the Trial Court---No one could be convicted only on the basis of similarity of his name with the culprits---No doubt conduct of accused, soon after the incident, would play an important part in determining his guilt and same was a corroborative piece of evidence, but in the present case, neither the warrants, nor the proclamation made in three national newspapers as required under S.19(10) of the Anti-Terrorism Act, 1997 had been brought on record to establish the alleged abscondence on the part of accused---No question relating to abscondance was put to accused while recording his statement under S.342, Cr.P.C., whereas the Trial Court was bound to ask such question from accused---Prosecution having failed to prove its case against accused beyond reasonable doubt, benefit of such doubt must be extended to accused---Conviction and sentence recorded by the Trial Court was set aside and accused was acquitted of the charge and was released, in circumstances.

PLD 2001 Quetta 64 and 2001 SCMR 56 rel.

Muhammad Sadiq Ghuman and Najm-ud-Din Mengal for Appellant.

Abdullah Kurd, P.G. for the State.

Date of hearing: 28th July, 2011.

2012 P Cr. L J 512

[Balochistan]

Before Muhammad Hashim Khan Kakar and Muhammad Noor Meskanzai, JJ

SAMIULLAH---Appellant

Versus

THE STATE---Respondent

Criminal (CNS) Appeal No. 316 of 2009, decided on 30th November, 2011.

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

----S. 29---Presumption from possession of illicit articles---Scope---Burden to prove---Primary duty is of the prosecution to prove its case beyond reasonable doubt and its burden is not shifted to the accused under the presumption contained in S.29 of the Control of Narcotic Substances Act, 1997---Section 29 only says that once the prosecution establishes recovery beyond doubt, it is then that the burden is shifted---Said section does not absolve the prosecution of its primary duty to prove its case beyond doubt---Defence plea, if any, has to be adjudged by the court for its probability and legal value depending on the circumstances of the case.

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

----S. 9(c)---Possession and trafficking the narcotics---Appreciation of evidence---Accused had been arrested from the spot while sitting on the driving seat of car, from the rear seat of which 40 Kilograms of "Hashish" was recovered---Section 103, Cr.P.C. being not applicable to narcotic cases, non-association of private witnesses in recovery proceedings did not vitiate the trial---Police witnesses were as good witnesses as any other citizen unless any mala fide was established against them---Police Officials had furnished a straightforward and confidence-inspiring account, which did not suffer from any contradiction, discrepancy or inherent infirmity---Record did not show that prosecution witnesses had deposed against the accused out of malice---Accused had admitted his presence in the car---Samples of narcotic recovered from the car were found to be "Hashish" on chemical analysis--- Car being in possession and control of the accused, he would be deemed to be in actual and conscious possession of the narcotic recovered therefrom---Defence plea was nothing but a cock and bull story---Prosecution version was more plausible and nearer to truth than defence version---Impugned judgment was based on valid reasons and was neither perverse nor arbitrary---Conviction and sentence of accused were upheld in circumstances. The State v. Shawal Khan 1998 SCMR 1107 ref.

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

----S. 9(c)---Possession and trafficking narcotics---Appreciation of evidence---Police witnesses, credibility of--- Police witnesses are as good witnesses as other citizens, unless any mala fide is established against them---Deposition of a Police Official cannot be brushed aside simply on the bald allegation that he belongs to Police department.

Muhammad Aslam Chishti for Appellant.

Liaquat Ali for the State.

Date of hearing: 26th October, 2011.

2012 P Cr. L J 559

[Balochistan]

Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ

ALI GUL---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.(S) 20 and Murder Reference No. (S) 13 of 2009, decided on 29th September, 2011.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Insufficiency of motive---Not a mitigating circumstance for reduction of sentence---Injured eye-witness was father and complainant was real brother of the deceased---On account of relationship of said witnesses with the deceased their statements could not be brushed aside nor they could be termed as interested witnesses, for the reason that they had no direct animosity with the accused---Defence, despite lengthy cross-examination, failed to create any dent in the veracity of witnesses, except a few discrepancies, which were immaterial and not fatal to their evidence---Being the residents of same village and closely related to the deceased, their presence could not be doubted by any degree of seriousness---Occurrence having taken place in broad-daylight, there was no possibility of mistaken identity---Evidence of witnesses, did not suffer from any material contradiction, discrepancy or inherent infirmity, but was consistent with the probabilities materially fitting in with other evidence; more particularly the medical evidence supported by the recovery of rifle from the possession of accused and positive report of the Firearm Expert---Fact that F.I.R. was promptly lodged, wherein accused was nominated had shown that the complainant had narrated truthful account of the incident---Case of prosecution was supported/corroborated by the circumstantial evidence, such as preparation of the inquest report site inspection memo and site sketch; recovery of empties; collection of blood-stained earth and clothes and Firearm Expert's report as well as motive as alleged in the F.I.R.---Accused having taken away life of an innocent person, caused firearm injury to an aged person, no mitigating circumstances existed to award lesser penalty---Only on the ground of insufficiency of motive, death sentence could not be withheld, which otherwise was normal penalty for committing the murder---Prosecution had successfully proved that accused had committed the murder of deceased and caused injury to injured witness---Trial Court after proper appraisal of the evidence, had rightly convicted and sentenced the accused---Impugned judgment of the Trial Court was maintained, and murder reference was answered in the affirmative.

2000 SCMR 727 and 2000 SCMR 383 rel.

Nasir Marri for Appellant (in Criminal Jail Appeal No. (S) 20 of 2009).

Anwar-ul-Haq Ch. for the State (in Criminal Jail Appeal No.(S) 20 of 2009).

Anwar-ul-Haq Ch. for the State (in Murder Reference No. (S) 13 of 2009).

Nasir Marri for Respondent (in Murder Reference No. (S) 13 of 2009).

Date of hearing: 22nd September, 2011.

2012 P Cr. L J 606

[Balochistan]

Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ

ABDUL LATEEF---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No. 53 of 2008, decided on 30th November, 2011.

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

----Ss. 9(c) & 36---Criminal Procedure Code (V of 1898), S.156(1)---Possessing narcotics---Appreciation of ' evidence---Personnel of Criminal Investigation Agency (CIA), no doubt, under S.156(1), Cr. P. C., had no power to iii vestigate a cognizable offence, but in the present case F.I.R. had been lodged at concerned police station and challan had also been submitted before the court by the S.H.O. of the said police station---Even if it was presumed that Sub-Inspector C.I.A. was not competent to investigate the matter, it would amount only to an irregularity which would not affect the trial, particularly when neither any prejudice or injustice had been caused to the accused, nor he had raised such objection during the trial---Trial Court had discussed the evidence in its true perspective and based its decision on valid reasons---Section 103, Cr. P. C. was not applicable to narcotic cases by virtue of S.25 of Control of . Narcotic Substances Act, 1997---Prosecution witnesses had given straightforward and confidence-inspiring evidence, who had no malice or animus against the accused---Planting of forty Kilograms heroin on the accused by the police was not believable---Section 36 of the Control of Narcotic Substances Act, 1997, did not require dispatch of the whole recovered lot to Chemical Examiner for analysis, as a sample thereof was always treated as a part of the total---Sending of 40 grams out of 40 Kilograms of heroin as sample to Chemical Examiner, therefore, was not questionable---Defence plea was absurd, improbable and unreasonable---House of recovery was owned by the wife of accused---Impugned judgment did not suffer from any illegality or material irregularity---Appeal was dismissed accordingly.

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

----S. 36---Quantity of recovered substance to be sent to Chemical Examiner---Under S.36 of the Control of Narcotic Substances Act, 1997, the whole recovered lot is not required to be sent to Chemical Examiner for test and analysis, as a sample thereof is always treated as a part of the total.

Abdul Karim Yousafzai for Appellant.

Haji Liaquat Ali for the State.

Date of hearing: 27th October, 2011

2012 P Cr. L J 614

[Baluchistan]

Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ

Mst. PERVEEN KOUSAR and others---Petitioners

Versus

SHAKIL AHMED and others---Respondents

Criminal Revision No.34 and Criminal Appeal No. 379 of 2009, decided on 30th November, 2011.

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

----Art. 140---Cross-examination as to previous statements in writing---Procedure detailed.

(b) Administration of justice---

----If any act is required to be done in a particular manner, then it should be done in that manner, otherwise it should not be done at all.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art.140---Qatl-e-amd----Accused not allowed to confront Investigating Officer with previous statements of witnesses and improvements made by them in court---Trial Court had not allowed the accused to confront the Investigating Officer with the previous statements of the witnesses and improvements made by them in their statements made in the court in terms of Art.140 of Qanun-e-Shahadat, 1984---Not allowing the accused to confront the Investigating Officer during cross-examination with the said previous statements and not bringing on record the contradictions made by the witnesses amounted to procedural defect and unfairness in trial resulting in miscarriage of justice and serious prejudice to the accused---Impugned judgment was consequently set aside and the case was remanded to Trial Court with the direction to re-examine the Investigating Officer and provide an opportunity of cross-examination to accused in view of the observations of the High Court strictly in accordance-with law.

Ali Ahmed Lehri for Petitioner/Complainant.

Ejaz Sawati for Convict/Appellant.

Haji Liaquat Ali for the State.

Date of hearing: 27th October, 2011.

2012PCr.LJ646

[Balochistan]

Before Muhammad Hashim Khan Kakar and Muhammad Noor Meskanzai, JJ

MUHAMMAD RAFIQ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 39 of 2009, decided on 30th November, 2011.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Ocular account of occurrence was straightforward and confidence-inspiring---Presence of eye-witnesses at the scene of occurrence was not doubtful---Parties being known to each other, misidentification of accused was out of question---Prosecution witnesses having no direct animosity with.the accused, could not be termed as interested witnesses due to their relationship with the deceased---Ocular evidence did not suffer from any material contradiction, discrepancy or inherent infirmity and was consistent with the probabilities fitting materially with other evidence---Promptly lodged F.I.R. containing the specific role of accused had elimingted the chance of deliberation or consultation on the part of complainant---Accused had not denied the incident in his examination and statement on oath recorded under Ss. 342 and 340(2), Cr.P.C., but had disputed the manner of incident---Prosecution version was more probable than defence version---Negative report of firearm expert being purely a corroborative piece of evidence, was not sufficient to discard the ocular testimony corroborated by medical evidence and motive, and was not fatal to prosecution version---Conviction and sentence of accused were upheld - in circumstances.

Muhammad Amin v. The State 2000 SCMR 1784; Amir Khan v. The State 2000 SCMR 1885 and Sarfraz alias Sappi v. The' State 2000 SCMR 1758 ref.

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

----S. 302(b)--- Qatl-e-amd--- Appreciation of evidence--- Interested witness, description and credibility of---Interested witness is one who has a motive for false implication of accused, is a partisan and is involved in the matter against the accused---Friendship or relationship with the deceased is not sufficient to discredit a witness, particularly when there is no motive for false involvement of accused.

Muhammad Amin v. The State 2000 SCMR 1784 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Ocular and medical evidence in conflict---Contradictory medical .evidence cannot outweigh the confidence-inspiring oral evidence of a truthful witness.

Amir Khan v. The State 2000 SCMR 1885 and Sarfraz alias Sappi v. The State 2000 SCMR 1758 ref.

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

----S. 302(b)--- Qatl-e-amd--- Appreciation of evidence--- Medical opinion---Opinion of a doctor is not binding upon the courts ipso facto, but court has to see the opinion expressed by a doctor if to be acceptable in the light of well recognized principles of medical jurisprudence.

Tahir Hussain and Abdul Sattar Kakar for Appellant.

Haji Liaqat Ali for the State. .

Date of hearing: 23rd November, 2011.

2012 P Cr. LJ 672

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

FATEH MUHAMMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.92 of 2011, decided on 30th August, 2011.

Criminal Procedure Code (V of 1898)-.

---S. 497---Penal Code (XLV of 1860), Ss.392/395/397---Robbery, dacoity---Bail, grant of---Bail granted to accused by Sessions Judge had been recalled by Additional Sessions Judge (Trial Court)---Validity---Observations made by Additional Sessions Judge in the impugned order were completely based on misreading and misappreciation of evidence on record as well as the law laid down by the superior courts---Offence against the accused although was not compoundable, yet Sessions Judge had granted bail to accused on the ground of three days delay in lodging of the F.I.R. by the complainant making the case one of further inquiry and the offence not falling within the prohibitory clause of S.497(1), Cr.P.C.---No doubt Sessions Judge had considered the compromise arrived at between the parties, but the same had not been made basis for granting bail to accused---Trial Court undoubtedly was competent to issue notice to the parties at any stage of trial if it deemed fit and proper in view of the peculiar facts and circumstances of the case, but not in the manner as done in the present case---Prosecution was supposed to produce the evidence against the accused and not of the accused---Trial Court, thus, had not rightly exercised the jurisdiction vested in it under the law---Sessions Judge had rightly granted bail to accused and cancellation thereof by Additional Sessions Judge was illegal, without jurisdiction and not warranted under law---Impugned order was, therefore, set aside and the accused was admitted to bail accordingly.

Nisar Ahmed Alizai for Petitioner.

Abdul Ghias Nousherwani„ P.-G. for the State.

Date of hearing: 19th August, 2011.

2012 P Cr. L J 750

[Balochistan]

Before Muhammad Hashim Khan Kakar and Muhammad Noor Meskanzai, JJ

KHUDAI DAD alias PEHLWAN---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.12 and Criminal Revision Petition No.11 of 2007, decided on 29th December, 2011.

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

----Ss. 302(b), 324 & 337-F(i)---Qatl-a-amd, attempt to commit qatl-e­amd, causing Damiyah to any person---Appreciation of evidence---Both prosecution witnesses, though were closely related inter se as well as to the deceased, but their evidence could not be discarded merely on the basis of their relationship with the deceased---Accused was nominated in the promptly recorded F.I.R. as a principal perpetrator---Defence, despite lengthy cross-examination, failed to create any dent in the veracity of statements of prosecution witnesses, except , a few discrepancies, which were immaterial and not fatal to their evidence---Prosecution witnesses were residents of the adjacent Refugee Camp and one of the prosecution witnesses had also got injured by the firing made by accused---Presence of said witnesses at the place or time. of occurrence could not be doubted being natural-witnesses---Occurrence having taken place in broad daylight, there was no possibility of mistaken identification---Evidence of the witnesses did not suffer from any material contradiction, discrepancy or inherent infirmity and was consistent with the probabilities materially fitting in with other evidence, more particularly the medical evidence supported by the recovery or crime weapons from the possession of accused and positive report of Forensic Science Laboratory---Accused, in the light of material available on record had committed the murder of the deceased and caused fire-arm injuries to the prosecution witness---Appeal filed by accused, was dismissed, in circumstances.

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

----Ss. 302(b), 324 & 337-F(i)---Qatl-e-amd, attempt to commit qatl-e­amd, causing Damiyah---Appreciation of evidence---Evidence of interested witness---Evidence furnished by interested witnesses related to the deceased, could not be discarded merely for the reason that the witness had relationship with the deceased in such like situation, efforts must be made to seek corroboration from other evidence on record--= Corroboration did not mean that it should come from an independent witness, but any thing in the circumstances, which tended to satisfy the court that the witness had spoken truth could safely be considered to be corroborative evidence.

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

----Ss. 302(b), 324 & 337-F(i)---Criminal Procedure Code (V of 1898), S.439---Qatl-e-amd, attempt to commit qatl-e-amd, causing Damiyah to any person---Sentence---Accused was convicted and sentenced to suffer life imprisonment, and the prosecution had filed petition for enhancement of said sentence to that of death penalty---Murder in question was neither preplanned nor premeditated, as accused was unaware about the arrival of the complainant and his deceased brother---Deceased had approached the accused who was present at the tube-well; and record was completely silent about the fact as to what had happened, immediately, prior to the occurrence between accused and the deceased---Incident was not started by accused and in fact it was the deceased, who approached accused at the time of incident and the motive behind the incident was shrouded in mystery---Real motive for commission of the alleged offence had been withheld by the prosecution---High Court in circumstances, declined to interfere with. the sentence awarded by the Trial Court---Death sentence, however, could not be inflicted on the accused in view of delay of about six years occurring on account of intervening circumstances of the case---Petition for enhancement of sentence, was dismissed, in circumstances.

Haji Liaquat Ali for Pauper Appellant.

Nazeer Aghan for the Complainant/Petitioner

Abdul Sattar Durrani, Additional A.-G. for the State.

Date of hearing: 19th December, 2011.

2012 P Cr. L J 768

[Baluchistan]

Before Muhammad Hashim Khan Kakar and Muhammad Noor Meskanzai, JJ

MUHAMMAD ASIF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.303 of 2008 and Murder Reference No.11 of 2008, decided in 22nd December, 2011.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Promptly lodged F.I.R. nominating the sole accused had exhibited truthfulness of the complainant and lack of any deliberation on his part to concoct the story---Ocular evidence which contained all the graphic details of the occurrence, was consistent and confidence-inspiring---Friendship of eye-witnesses with the deceased would not discredit them in the absence of any allegation against them on record of having a motive for false implication of accused---Presence of eye-witnesses at the time and place of occurrence could not be doubted---Occurrence having taken place in broad-daylight and the parties being residents of the same place, question of mistaken identity of accused did not arise---Independent ocular testimony did not luffer from any material contradiction, discrepancy and inherent infirmity, and the same was 'supported by medical evidence and arrest of the accused along with his vehicle by the police---Absence or weakness of motive was immaterial, if the prosecution case stood proved against the accused by direct evidence---Non-recovery of crime weapon was not fatal when medical evidence had fully corroborated the ocular account of occurrence regarding the injury having been caused to the deceased by a pistol shot---Even otherwise, recovery of weapon of offence being a circumstantial corroboratory piece of evidence, was not a mandatory requirement of law---Conviction and sentence of death of accused were affirmed in circumstances.

Imtiaz Ahmed v. The State 2001 SCMR 1334 and Abdul Wahab alias Rehra v. The State 1999 SCMR 1668 ref.

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

----S. 302(b)--- Qatl-e-amd--- Appreciation of evidence--- Motive---Absence or weakness of motive is immaterial, if the case of prosecution has been proved against the accused by direct evidence.

Imtiaz Ahmed v. The State 2001 SCMR 1334 and Abdul Wahab alias Rehra v. The State 1999 SCMR 1668 ref.

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

----Art. 47---Relevancy of certain evidence for proving in subsequent proceedings of the truth of facts therein---Any statement, written or verbal, of relevant facts made by a person who is dead, is admissible in evidence under Art.47 of Qanun-e-Shahadat, 1984.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Non-recovery of crime weapon---Recovery of crime weapon or empties is not a mandatory requirement of law, but is a circumstantial piece of evidence, which tends to corroborate the other pieces of evidence, i.e. ocular account, motive, medical evidence and any other circumstance, which may deem relevant---Absence of such corroborative evidence would not be fatal in the presence of direct credible evidence.

Nadir Ali Chalgari for Appellant.

Iqbal Ahmed Kasi for the Complainant.

Abdul Sattar Durrani, Additional P.-G. for the State.

Date of hearing: 12th December, 2011.

2012 P Cr. L J 780

[Balochistan]

Before Muhammad Hashim Khan Kakar and Muhammad Noor Meskanzai, JJ

TOR JAN alias JAG---Appellant

versus

THE STATE---Respondent

Criminal Jail Appeal No.62 of 2008, decided on 29th December, 2011.

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

----Ss. 364/34---Kidnapping or abducting in order to murder---Appreciation of evidence---Benefit of doubt---Delay in lodging F.I.R.---Inimical witnesses---Identification of accused---Improvements in witness statements---Failure to produce medical and documentary evidence---Contradictory findings of Trial Court---Accused along with his co-accused was alleged to have entered the house of the complainant and abducted his sister, whose dead body was later found with gunshot injuries---Occurrence had been reported to the police station after an unexplained delay of about thirteen days, when said station was situated at a distance of four kilometers from the place of occurrence---Investigating officer had stated that proceedings under S.157(2), Cr.P.C., 1898, were initiated and statements of witnesses were recorded but neither complainant nor any prosecution witness had stated anything or produced any document to substantiate such claim of Investigating officer---Complainant was not an eye-witness of the occurrence and all prosecution witnesses being closely related to the complainant and each other, were inimical to the accused---Occurrence took place at midnight and in absence of light, claim of prosecution witnesses, regarding identification of culprit could not be easily accepted---Fact that accused and co-accused opted not to conceal their identity, when they had chosen the cover of night for abducting a woman, also raised serious doubts about genuineness of prosecution witnesses' claim regarding identification of accused---Admission of prosecution witnesses that on the very next day of occurrence , accused was present in his house situated adjacent to the house of the complainant, seemed an example of fabricated evidence as it was common knowledge that in cases of abduction or kidnapping, abductors make all possible efforts to conceal their identity from prosecution witnesses and the police---Statements of prosecution witnesses had been recorded after an unexplained delay of about thirteen days in which they had made dishonest improvements to strengthen the prosecution case---One of the prosecution witnesses claimed that dead body of abductee had been found in place 'A' with gunshot injuries on her mouth and neck but neither any medical certificate nor any certificate issued by local administration of place 'A', had been produced in evidence in order to substantiate such claim---Findings of Trial Court were self-contradictory as on the one hand Trial Court had given finding that prosecution had failed to prove unnatural death of abductee by means of firing, while on the other hand same Court concluded that since unnatural death of abductee had not been categorically challenged by the accused's side during course of cross-examination, same had been proved--- Accused being an old and poor person, had been made scapegoat in the case on account of a monetary dispute between the parties---Prosecution having failed to prove its case against accused, beyond shadow of doubt, his conviction was set aside and he was acquitted.

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

----S.154---Information in cognizable cases---Delay in lodging F.I.R.---Effect of---Undue, unreasonable and unexplained delay in filing F.I.R. leads to suspicion and reflects on the truth of the prosecution case and earlier information of crime is required to be supplied in order to avoid criticism of the report as being manipulated and result of deliberation and consultation.

(c) Criminal trial---

----Burden of proof---Standard---Burden of proof is always on the shoulder of the prosecution to prove its case beyond shadow of doubt and prosecution cannot take benefits from weaknesses of the defence.

(d) Criminal trial---

----Benefit of doubt---Scope---Conviction must be founded on unimpeachable evidence and certainty of guilt and, hence, any doubt, that arises in the prosecution case, must be resolved in favour of the accused and it is imperative for the court to examine and consider all the relevant proceedings and leading facts to the occurrence, so as to arrive at a correct conclusion---If circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, the accused will be entitled to the benefit not as matter of grace and concession, but as of right.

Miss Shabana Azeem for Pauper Appellant.

Liaquat Ali for the State.

Date of hearing: 19th December, 2011.

2012 P Cr. L J 796

[Balochistan]

Before Mrs. Syeda Tahira Safdar and Muhammad Noor Meskanzai, JJ

BILAL AHMED---Appellant

versus

THE STATE---Respondent

Criminal Jail Appeal No.12 of 2010, decided on 27th October, 2011.

Explosive Substances Act (VI of 1908)---

----Ss. 4(b) & 7---Anti-Terrorism Act (XXVII of 1997), Ss.19(8-b) & 27-A---Criminal Procedure Code (V of 1898), S.510---Possessing explosive substance---Appreciation of evidence---Counsel for the accused had contended that as proper sanction was not obtained from the Provincial Government for prosecution of the case as required under S.19(8-b) of Anti-Terrorism Act, 1997, the proceedings conducted by the Trial Court were in violation of relevant provision of law; that the F.I.R. had been registered by CIA, who had no authority to make investigation in the matter and their only duty was to assist the Police; that Investigating Officer was bound to investigate the matter independent of the material collected by CIA, which had adversely affected the case of the prosecution; that no report of expert was present on record, nor even the material alleged to be recovered was examined by the expert, only an unauthorized report had been produced during course of evidence, which was not admissible in evidence under the law and that as false case had been made out against accused, which the prosecution had failed to establish, accused was liable to be acquitted---Validity---Prosecutor-General though had conceded that no such sanction was obtained, but as accused was tried by a Special Court constituted under Anti-Terrorism Act, 1997, procedure as provided in the special statute should be adopted and S.19(8-b) of Anti-Terrorism Act, 1997, which had provided the procedure had been complied with---Proceedings were rightly held by the Trial Court against accused, in circumstances---Trial Court having discussed the objections and had arrived at the conclusion that it was a mere irregularity and not an illegality, which could not vitiate the case of the prosecution, which otherwise, was based on convincing and direct evidence---Personnel of CIA, in the case, had not made the investigation, but their act was confined only to the extent of apprehending of the suspected person effecting of recovery, preparation of seizure memo and parcels---Investigating Officer was separately appointed, who did the job and submitted Police report/challan before the court---Act of CIA, in circumstances, did not vitiate the proceedings, as it was nowhere established that prejudice had been caused to the accused---In view of S.510, Cr.P.C., production of Chemical Examiner, Assistant Chemical Examiner, Serologist, Finger Print Expert or Firearm Expert, subject to appointed by the Government were not required---Recovered material, in the case was not sent to the Ballistic Expert for obtaining his opinion---Sending of recovered material for an Expert opinion was not mandatory in all cases---Opinion of the expert, though was an important piece of evidence, but where the prosecution established its case with direct and confidence inspiring evidence, the report of an expert was of less value---Section 27-A of Anti-Terrorism Act, 1997 had provided a presumption against a person being found in possession of any explosive substance---Prosecution had discharged the burden while establishing recovery of explosive substance from possession of accused---Burden thus shifted on the accused to establish the contrary, which accused failed---Accused, having failed to make out a case in his favour, his appeal was dismissed being without merits.

PLD 1997 SC 408; Muhammad Hanif v. The State PLD 1993 SC 895; Sardar Khan v. The State 1998 SCMR 1823; Sarfraz alias Sappi v. The State 2000 SCMR 1758; Noor Muhammad v. The State 2005 SCMR 1958 rel.

Abdul Karim Yousafzai for Appellant.

Abdullah Baloch, Special Prosecutor ATA for the State.

Date of hearing: 6th April, 2011.

2012 P Cr. L J 1028

[Balochistan]

Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ

GHOUS BAKHSH and others---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeals Nos.31, 32 and 33 of 2009, decided on 12th March, 2012.

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

----S. 35--- Penal Code (XLV of 1860), Ss. 302(b)/324/337-F(iv)/ 337-F(vi)/397/394/511---Qatl-e-amd, attempt to commit qatl-e-amd, ghayr-jaifah (mudiah), ghayr-jaifah (munaqqillah), robbery or dacoity with attempt to cause death or grievous hurt, voluntarily causing hurt in committing robbery, attempting to commit offences punishable with imprisonment for life or for a shorter term---Sentence in case of conviction of several offences at one trial---Scope---Accused had been convicted and sentenced for different crimes and his contention was that it was obligatory upon the Trial Court to have passed an order regarding running of his convictions and sentences concurrently in view of S.35, Cr.P.C., and that the sentences awarded to him were severe in nature---Validity---Rule under S.35, Cr.P.C., was that the sentences of imprisonment in two or more offences tried at one trial shall run consecutively and the direction that such punishment shall run concurrently was an exception---Under S.35, Cr.P.C., court could direct a concurrent running of sentence only when accused was convicted at one trial for two or more distinct offences, whereas in the present case accused had been convicted at three separate trials, all four offences, though some of them were identical in nature, were committed with distinct and separate criminal objectives sought to be achieved at four different points of time, and as such justification to seek concurrent running of sentences for all the offences, did not arise---Accused had committed daylight robbery while depriving the complainant of 250 sheep, attempted to snatch his motorcycle as well and caused injuries to the relative of one of the complainants---Involvement of accused in a number of cases showed his desperate character---Accused had been awarded minimum sentence provided for the offences committed by him and he had also been extended the benefit of S.382-B, Cr.P.C.---Appeals being meritless were dismissed, accordingly.

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

----Ss. 35 & 397---"Sentence in case of conviction of several offences at one trial" and "sentence of offender already sentenced for another offence"---Distinction---Basic difference between the two provisions Ss.35 & 397, Cr.P.C. was that section 397, Cr.P.C prescribed for running of different sentences inflicted on an offender, at different trials, for different offences, without any clog of time, place and nature of offence, whereas S.35, Cr.P.C., was contingent on the conviction of a person for several offences at one trial.

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

----S. 561-A---Constitution of Pakistan, Art. 199---Concurrent running of sentences---Scope---Where two or more offences were not connected and had taken place at different times and with different persons, High Court could neither in exercise of inherent power section 561-A, Cr.P.C., nor in exercise of supervisory jurisdiction under Article 199 of the Constitution, direct or substitute an order for running a subsequent sentence concurrently with a previous sentence---Sentences in such cases cannot be justifiably ordered to run concurrently.

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

----S. 397---Sentence on offender already sentenced for another offence---Scope---Powers conferred upon the court under S.397, Cr.P.C., for ordering various sentences awarded in different cases to run concurrently, were discretionary in nature and were to be exercised after taking into consideration the allegation and circumstances of each individual case.

(e) Criminal trial---

----Sentencing of offender---Purpose---Purpose behind infliction of sentence was twofold; firstly, it would create such atmosphere, which could become a deterrence for the people who have inclination towards crime and; secondly, to work as a medium in reforming the offenders.

(f) Criminal trial---

----Sentencing of offender---Guidelines for courts---Sentence should neither be so severe that the offenders, could, out of frustration, become desperate and hardened criminals, nor should it be so mild that it encourages the offenders to commit the offence again---Courts, while judging adequacy of the sentence, were required to consider different factors, such as, previous conviction, circumstances, mode and manner in which offence was committed, age and character of an offender, heinousness of the crime, injury to the individual and the society etc.

Jameel Ramzan for Appellant.

Miss Sarwat Hina, Additional P.-G. for the State.

Date of hearing: 22nd December, 2011.

2012 P Cr. L J 1053

[Balochistan]

Before Jamal Khan Mandokhail, J

KALA KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Quashment No.97 of 2011, decided on 26th December, 2011.

Criminal Procedure Code (V of 1898)---

----S. 386---Penal Code (XLV of 1860), S. 409---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust by public servant, criminal misconduct--- Warrant for levy of fine---Scope---Clarification of judgment---High Court while hearing appeal of accused maintained his conviction and reduced his sentence to that already undergone by him with the order that the amount of fine shall be recovered from the accused from his property---Accused requested clarification of such order with the contention that although accused was ordered to pay fine, but in default of payment of the fine, the order was silent, and that it was ordered that amount of fine shall be recovered from the properties of the accused, but accused did not have any property---Validity---High Court had given no direction for detention of the accused in default of payment of fine and it had been specifically mentioned that the amount of fine shall be recoverable from the movable or immovable properties, or both, of the accused---Section 386, Cr.P.C. suggested that in case of default in the payment of fine, the amount could be recovered either by the attachment and sale of any property of the convict or the amount could be realized by the execution in accordance with the provisions of the Civil Procedure Code, 1908, and executing Court could issue warrants to the District Officer (Revenue), authorizing him to realize the amount by the execution according to the civil process against the movable or immovable properties, or both, of the offender---Proviso to S.386, Cr.P.C. clearly stated that in case, offender had undergone the whole of the sentence or there was no order for imprisonment in default of payment of fine, no court shall issue warrant of arrest of offender---High Court had reduced the sentence awarded to the accused by the Trial Court to that already undergone by him, however the amount of fine was ordered to be recovered from the movable or immovable properties of the accused and there was no order for imprisonment in default of payment of the fine, which meant that the fine was still recoverable, but without the detention of the accused in prison---If the accused did not own any property, the amount of fine would remain due against him, which could be recovered whenever he acquired a property in the future---Appeal of accused was dismissed, with such clarification.

Tahir Ali Baloch for Petitioner.

Haji Liaquat Ali for the State.

Date of hearing: 19th December, 2011.

2012 P Cr. L J 1068

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

Syed MUHAMMAD JAVED AHMED---Petitioner

versus

THE STATE and 2 others---Respondents

Constitutional Petition No.689 of 2011, decided on 15th February, 2012.

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

----S. 514---Surety/bail bond---Abscondance of accused either native or alien--- Forfeiture of entire amount of surety bond or a portion thereof---Guidelines for courts.

Standing surety for an alien is an act of generosity, benevolence and until and unless, it is established that the surety got the accused released on bail for any ulterior motive, the surety is not to be dealt with harshly or ruthlessly nor punished severely without there being extraordinary circumstances calling for full forfeiture of the surety bond. The court, while dealing with the surety must keep in mind the principle of undue leniency and undue severity as well as the circumstances of the case. Undue severity may lead to unwillingness on the part of neighbours and friends to come forward and give bail for a person under custody. The courts are required to hold some sort of balance while determining as to what extent a bond is to be forfeited. Sureties of accused persons involved in heinous crime such as kidnapping, dacoity, terrorism and murder do not deserve any leniency in the matter of reduction of their bonds and the court should take stringent measures against them, but it is equally true that the sureties of accused involved in the minor offences should be treated leniently. In such like cases, punishable with minor penalties, the entire amount of surety bond should not be forfeited, but only a reasonable amount may be forfeited keeping in view the facts and attending circumstances of the case.

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

-----S. 514---Foreigners Order, 1951, Rr. 5 & 11---Foreigners Act (XXXI of 1946), Ss. 3(2)(c)(I) & 14---Constitution of Pakistan, Art.199--- Constitutional petition---Surety/bail bond---Alien accused, abscondence of---Lawyer standing surety for such accused on humanitarian ground---Order of Trial Court forfeiting entire amount of bond being Rs.40,000 upheld by Appellate Court---Validity---Nothing on record to show that surety had connived with or procured absence of accused---Surety being a young lawyer belonging to noble profession of Advocacy while standing surety had neither gained any thing nor was privy for absconding accused---Accused in the present, was involved in minor offence punishable with minor penalties, thus, his surety required to be treated leniently and instead of entire amount of surety, a reasonable portion thereof should have been forfeited---High Court modified impugned order and reduced such penalty to Rs.20,000 in circumstances.

Abdul Waddod, Syed Muhammad Pervaiz Jamal and Syed Muhammad Javed for Petitioners.

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

2012 P Cr. L J 1207

[Balochistan]

Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ

DAD MUHAMMAD and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.375 of 2009 and Murder Reference No.25 of 2009, decided on 25th April, 2012.

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

----S. 302(b)/34---Qatl-e-amd, common intention---Appreciation of evidence---Sentence, reduction in---Trial Court after going through the evidence had come to the conclusion that the prosecution had proved its case against accused by producing circumstantial evidence; particularly the ocular account, furnished by prosecution witness, who had last seen the deceased in the company of accused---Accused had failed to furnish sufficient explanation qua his innocence---Said independent witness had no grudge or malice to falsely involve accused in the commission of the offence, particularly when accused was the real father of deceased---Said witness was subjected to lengthy cross-examination, but defence had failed to shake his veracity---Defence counsel was not in a position to defend the case of accused qua the recovery of dead body on his pointation from the abandoned well---Discrepancies, pointed out by Defence counsel in the statement of prosecution witnesses, were extremely insignificant, which pertained to extraneous detail of the case having no worth---Prosecution had proved its case beyond any shadow of doubt---Trial Court awarded death sentence to accused under S.302(b), P.P.C.---Said provisions of law had provided two kinds of punishments i.e. punishment with death as Qisas and punishment with death or imprisonment for life as tazir---Question of sentence demanded the utmost care on the part of the court dealing with the life and the liberties of people; and that accused were also entitled to extenuating benefit of doubt on the question of sentence---Some mitigating circumstances available on the file of the case, escaped notice of the Trial Court while determining the quantum of sentence---According to the prosecution's own showing, the occurrence had taken place because of the deceased as she caused annoyance and humiliation to accused and his family; it was not only the accused, but absconding accused and three other unknown accused persons who were also involved in the case---Accused was 73 years old; and prosecution had failed to establish as to who had strangulated the deceased---Taking both such factors as extenuating circumstances, death penalty was not warranted under the law---Death sentence of accused was commuted to that of imprisonment for life, with the benefit of S.382-B, Cr.P.C.

Israr Ali v. The State 2007 SMR 525 rel.

(b) Criminal trial---

----Circumstantial evidence---Punishment could also be awarded on the basis of circumstantial evidence, if it would connect the accused with the offence, without reasonable doubt.

Jaffar v. State 1998 SCMR 2669 rel.

Kamran Murtaza and Rizwan Ejaz for Appellants.

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

Date of hearing: 17th April, 2012.

2012 P Cr. L J 1228

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

BOHAIR QAZI and others---Applicants

Versus

THE STATE---Respondent

Criminal Miscellaneous Bail Nos. 111 to 118 of 2012, decided on 6th April, 2012.

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

----S. 497(1)---Penal Code (XLV of 1860), Ss. 392/34/223/224/225-B---Robbery, common intention, escape from confinement or custody negligently suffered by public servant, resistance or obstruction by a person to his lawful apprehension, or escape or rescue---Bail, grant of---Bail sought on medical grounds---Contention of the accused was that due to development of gangrene and amputation of his right leg, his continued detention in the jail ward was hazardous to his life and the treatment required by him could not be provided within the jail hospital--- Validity--- Medical certificate and advice issued by the doctor clearly demonstrated that the accused was suffering from gangrene, which was a serious and potentially life threatening disease, which could not be cured and controlled in the jail ward and it needed special treatment which was not possible in the said ward---Continued detention of the accused was a direct threat to his life and bail could not be held as a matter of punishment and the accused was entitled to bail on the ground of sickness, as the disease he was suffering from was fatal to his life---Accused had made out a good case for grant of bail on the ground of sickness under S.497(1) of the Cr.P.C., and accordingly, he was enlarged on bail.

Mian Manzoor Ahmed Watto v. The State 2000 SCMR 107; Haji Mir Aftab v. The State 1979 SCMR 320 and Mian Muhammad Shahbaz Shareef v. The State MLD 1997 2484 rel.

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

----S 497(1)---Bail on medical ground for non-bailable offence---Principles---Correct criteria for grant of bail to an accused in a non-bailable case on medical ground would be that the sickness or ailment with which the accused is suffering is such that it cannot be properly treated within the jail premises and that some specialized treatment is needed and his continued detention in jail is likely to affect his capacity or is hazardous to his life.

Mian Manzoor Ahmed Watto v. The State 2000 SCMR 107 quoted.

Syed Ayaz Zahoor for Applicants.

Abdul Sattar Durrani, Additional P.-G. for the State.

Date of hearing: 2nd April, 2012.

2012 P Cr. L J 1308

[Balochistan]

Before Muhammad Hashim Khan Kakar and Muhammad Noor Meskanzai, JJ

KHALIL AHMED and others---Appellants

Versus

THE STATE---Respondent

Criminal (ATA) Appeals Nos. 76 and 77 of 2009, decided on 11th April, 2012.

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

----Ss. 353 & 512---Qanun-e-Shahadat (10 of 1984), Art. 47---Penal Code (XLV of 1860), Ss. 365-A & 109---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping or abduction for extorting property, valuable property, etc., abetment, kidnapping for ransom or hostage-taking---Evidence to be taken in presence of accused---Scope---Recording of evidence in absence of accused---Scope---Challan of the case was submitted before the Trial Court against the accused persons and material prosecution witnesses were examined---Subsequently one co-accused was arrested and witnesses who were examined earlier were recalled for cross-examination by the said co-accused on the basis of their examination-in-chief which they had already recorded earlier---Section 353, Cr.P.C. provided that examination-in-chief of the witness must be carried out in the presence of the accused or his pleader---Mere cross-examination of the witnesses in the presence of the accused was not sufficient-Recording of evidence in derogation of such mandatory rule of law vitiated the trial---Section 512, Cr.P.C. and Article 47 of Qanun-e-Shahadat, 1984, demonstrated that Trial Court was empowered to believe the evidence of a witness recorded in the absence of accused, provided on the arrest of the accused, such witness was dead or incapable of giving evidence or his attendance could not be procured without an amount of delay or expense---In the present case, witnesses were produced and co-accused was allowed to cross-examine them on the basis of their examination-in-chief, which they had already recorded in the first round of trial, which was a violation of the rule enacted under S.353, Cr.P.C.---Prosecution witnesses must have been examined again in his presence after the arrest of the co-accused---Procedure adopted by the Trial Court was illegal and the conviction and sentence awarded to the accused persons and co-accused on the basis of such evidence was not sustainable---Trial Court had also made reliance on details of call locations issued by a foreign company, which was never exhibited before the Trial Court and the same caused serious prejudice to the accused persons and co-accused---Appeals were partly allowed, impugned judgment was set aside, and the case was remanded to the Trial Court for re-examining the witnesses.

Sher Muhammad alias Shera v. The State 1997 PCr.LJ 259 rel.

(b) Administration of justice---

---Disposal of case---Scope--- Speedy disposal of case should not be allowed to surpass safe administration of justice.

H. Shakil Ahmed for Appellants (in Criminal (ATA) Appeal No.76 of 2009).

Muhammad Riaz Ahmed for Appellant (in Criminal (ATA) Appeal No.77 of 2009).

Muhammad Wassay Tareen, P.-G. for the State.

Date of hearing: 27th March, 2012.

2012 P Cr. L J 1431

[Balochistan]

Before Ghulam Mustafa Mengal, J

EHSANULLAH and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.39 of 2011, decided on 19th April, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---West Pakistan Arms Ordinance (XX of 1965), S.13-E---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Anti-Terrorism Act (XXVII of 1997), S. 7---Possession of illegal weapons, attempt to cause explosion or for making or keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, acts of terrorism---Bail, refusal of---Plea of minority---Heinousness of the offence---Effect---Police raided a house and apprehended the accused and co-accused on whose alleged pointation hand grenades, detonators and time pencils were recovered from the said house---Contention of the accused and co-accused were that requirements of S.103, Cr.P.C., had not been met and the search was made without search warrants, and that the accused and co-accused were minors---Validity---Minority was not the sole consideration for purposes of grant of bail in heinous offences as each case had to be considered in the light of its own facts---Age of the accused and co-accused and the question of compliance with S.103, Cr.P.C., was yet to be determined by the Trial Court---Offences with which the accused and co-accused were charged were heinous in nature and fell within the prohibitory clause of S.497, Cr.P.C.---Sufficient material was available to connect the accused and co-accused with the offences---Bail application of the accused and co-accused was dismissed, in circumstances.

Kamran Murtaza for Applicants.

Haji Liaqaut Ali for the State.

Date of hearing: 12th April, 2011.

2012 P Cr. L J 1458

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

MUHAMMAD ALAM---Petitioner

Versus

NOOR MUHAMMAD and 2 others---Respondents

Criminal Quashment No.60 of 2012, decided on 31st May, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A(6), 22-B & 561-A---Powers of Justice of Peace to issue directions for registration of F.I.R.---Scope---Complainant filed application under S.22-A, Cr.P.C. against the accused (petitioner)---Justice of Peace gave directions to the Tehsildar concerned to lodge an F.I.R. against the accused, in spite of the fact that the Tehsildar had already submitted his report regarding the incident, wherein the allegations levelled against the accused were found to be false and baseless---Validity---Perusal of Ss.22-A(6) and 22-B, Cr.P.C., clearly demonstrated that Ex-Officio Justice of Peace could only issue directions, when there was a complaint in respect of non-registration of a case and if such complaint was brought before him, then he could simply direct that the police had to act in accordance with the law and entertain the complaint, and if a cognizable case was made out, then to take further action in accordance with the law--- Provisions of S.22-A(6), Cr.P.C. did not make it obligatory for an Ex-Officio Justice of Peace to necessarily or in a blind fold manner issue directions regarding registration of a criminal case whenever a complaint was filed before him---Word 'may' used in S.22-A(6), Cr.P.C. clearly showed that the jurisdiction of Ex-Officio Justice of Peace in that regard was discretionary in nature---Ex-Officio Justice of Peace could simply direct that the police had to act in accordance with the law and entertain the complaint and if a cognizable offence was made out, then to take further action in accordance with the law and it would not be proper for the Justice of Peace to issue directions for registration of case as that would prejudice an accused---Tehsildar had opined unequivocally that the application under S.22-A, Cr.P.C., filed by the complainant was absolutely false and baseless, in view of which there was no justification left for the Justice of Peace directing registration of case against the accused---Petition for quashing proceedings was allowed, impugned order of the Justice of Peace was set aside with directions to the Tehsildar to entertain the complaint of the complainant and if a cognizable offence was made out, then to register a case.

Muhammad Bashir v. Station House Officer, Okara Cantt. PLD 2007 SC 539 and Khizar Hayat v. Inspector-General of Police (Punjab) Lahore PLD 2005 Lah. 470 rel.

Muhammad Baqir Bakhtiar for Petitioner.

Miss Tayyaba Iltaf, Additional Public Prosecutor for the State.

Date of hearing: 18th May, 2012.

2012 P Cr. L J 1477

[Balochistan]

Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ

SAMIULLAH and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.227 and Criminal Acquittal Appeal No.231 of 2010, decided on 30th May, 2012.

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

----S. 9(c)---Trafficking of narcotics---Appreciation of evidence---Accused was found in possession of narcotics while travelling in truck---Prosecution had substantiated accusation by producing cogent and concrete evidence---No glaring contradiction could be pointed out in the statements of witnesses---Minor contradictions which crept in with the passage of time, could easily be ignored---Despite exhaustive and searching cross-examination, nothing advantageous could be elicited rendering any help to the case of accused---All the prosecution witnesses were natural and impartial, having no enmity or rancour against accused; and their evidence could not be discarded only for the reason that they were official witnesses---Question of substitution or false implication of the accused would not arise, who was found in possession of the narcotics---Trial Court had discussed the evidence and had given valid reasons for its conclusion---Impugned Judgment did not suffer from any illegality or material irregularity---No delay took place in lodging the F.I.R.---Provisions of S.103, Cr.P.C. had no application to the narcotics cases as per provisions contained under S.25 of Control of Narcotic Substances Act, 1997---Immediately after the apprehension, the charas in question was recovered from the secret cavities of the truck, being driven by accused---Certain quantity of charas from each packet was separated, sealed into a separate parcel and dispatched to the Federal Government Analyst for opinion---Opinion of the Analyst was in positive---Occurrence had partly been admitted by accused and he raised the plea of substitution and false implication---Said plea, in the peculiar facts and circumstances of the case, was nothing, but merely an attempt to hide his own guilt---Defence version being false, fabricated and an afterthought, had rightly been rejected by the Trial Court---Evidence on record had rightly been appreciated by the Trial Court; and the impugned judgment being well-reasoned and unexceptionable, did not call for any interference--- Appeal of accused was dismissed, in circumstances.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S.417(2-A)---Trafficking of narcotics---Appeal against acquittal---Appreciation of evidence---Accused was found sitting along with main accused on front seat at the time when the truck in question was intercepted---Prosecution did not produce any concrete evidence, except the alleged joint disclosure to show that he was in joint possession or control of the truck in question or he had any concern or deal with the contraband material in any manner---Charas was found concealed in the secret cavities of the truck in question, meaning thereby that narcotics were hidden from all persons---No evidence was available to indicate that accused knew that charas was concealed in the secret cavities, or he had exclusive knowledge of the said cavities---Prosecution had simply proved presence of accused in the truck at the time, when the same was intercepted---Mere presence of accused in the truck would not be sufficient to involve him in the case, unless conspiracy or abetment of the offence was shown and proved---Case of accused, in circumstances, was quite distinguishable from the case of main accused---Accused was father of main accused, but each and every individual was responsible for his own act---To err in acquittal was better to err in conviction---Mistake of Qazi (Judge) in releasing a criminal was better than his mistake in punishing an innocent---Appeal against acquittal, being meritless, was dismissed.

Holy Prophet Muhammad (P.B.U.H.) rel.

Muhammad Qahir Shah and Munir Ahmed Langov for Appellants (in Criminal Appeal No.227 of 2010).

Shaukat Ali Rakhshani Special Prosecutor ANF for Appellants (in Criminal Acquittal Appeal No.231 of 2010).

Shaukat Ali Rakhshani, Special Prosecutor ANF for Appellants.

Muhammad Qahir Shah and Munir Ahmed Langov for Respondents.

Date of hearing: 9th May, 2012.

2012 P Cr. L J 1572

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

MUHAMMAD MAJID---Applicant

Versus

GUL MUHAMMAD and 2 others---Respondents

Criminal Miscellaneous (Quashment) Application No.191 of 2012, decided on 29th June, 2012.

Penal Code (XLV of 1860)---

----Ss. 3, 4 & 489-F---Criminal Procedure Code (V of 1898), Ss.188, 154 & 561-A---Dishonestly issuing a cheque---Punishment of offences committed beyond, but which by law may be tried within Pakistan---Extension of Pakistan Penal Code, 1860, to extra-territorial offences---Scope---F.I.R. was registered against the accused (petitioner) for issuing a cheque which had been dishonored by a bank outside Pakistan---Petition for quashment of said F.I.R.---Whether an F.I.R. could be registered against a citizen of Pakistan, accused of an offence under the Pakistan Penal Code, 1860, which was committed beyond the limits of Pakistan---Principles.

Accumulative reading of sections 3 and 4 of P.P.C., and section 188, Cr.P.C., showed that said provisions conferred extra-territorial jurisdiction on the criminal courts of Pakistan over Pakistani citizens in respect of acts committed by them outside Pakistan. Application of P.P.C., had been extended to offences provided therein when committed by a citizen of Pakistan even in any country other than Pakistan itself by the provision made in section 4 of P.P.C.

Section 188, Cr.P.C., provided that when a citizen of Pakistan committed an offence at any place without and beyond the limits of Pakistan, he might be dealt with in respect of such offence as if it had been committed at any place within Pakistan at which he might be found. First proviso to section 188, Cr.P.C., prohibited the conduct of an inquiry into such offences unless it was certified by the Political Agent of Pakistan in the country where offence had been committed, that in his opinion the charges were to be inquired into in Pakistan. Where there was no Political Agent, sanction of the Federal Government would be necessary. Said provisions of law clearly demonstrated that the accusation could not be inquired into without certification of Political Agent or Federal Government, as the case might be, but such bar did not extend to mere registration of the F.I.R. under section 154, Cr.P.C. Sanction under section 188, Cr.P.C., was a procedural requirement which could be produced even after submission of challan in a court of competent jurisdiction. Required sanction could be secured even after submission of challan in order to inquire into the charge.

Present case was not a fit case for quashing of F.I.R. In order to comply with the provisions of law contained in section 188, Cr.P.C., it would be open to the complainant and investigating authorities to secure the required sanction to be able to inquire into the charge and take further action as might be found to be in accordance with the law.

Petition for quashment of F.I.R. was dismissed in circumstances.

Attaullah Langove for Petitioner.

Abdul Khair Achakzai for Respondent No.1

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

Date of hearing: 26th June, 2012.

2012 P Cr. L J 1583

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

ABDUL GHAFOOR and another---Petitioners

Versus

SAKHAWAT KHAN and another---Respondents

Criminal Quashment No.216 of 2012, decided on 21st June, 2012.

Penal Code (XLV of 1860)---

----Ss. 310, 323 & 331--- Criminal Procedure Code (V of 1898), S.561-A---Compounding of offence---Quashment of order of the Trial Court---Payment of Diyat to minor legal heirs of the deceased---Mode of payment determined by the Trial Court without making any decision on the compromise; without stating the Diyat amount, and without specifying the shares of the minor legal heirs---Effect---Application of accused persons (petitioners) seeking payment of Diyat in favour of minor legal heirs of the deceased in form of landed property was rejected by the Trial Court with a direction to deposit the Diyat amount in the bank---Validity---Trial Court had to make a specific order by either accepting or rejecting the compromise submitted by the parties and then the Diyat amount was to be fixed and mode of its payment determined---Said procedure had not been adopted in the present case---Trial Court seemed to be under some misconception whereby it assumed acquittal of the accused persons only on submission of the compromise---Court had to look into the merits of the case before making an order of acceptance or rejection of the compromise, thereby acquitting or convicting the accused---Trial Court failed to decide the present case in accordance with the law---Quashment petition was accepted and impugned orders were set aside and the Trial Court was directed to proceed strictly in accordance with the law.

2012 SCMR 437 and Chairman Agriculture Development Bank of Pakistan v. Mumtaz Khan PLD 2010 SC 695 ref.

Muhammad Kamran Mullahkhail for Petitioners along with petitioners in person.

Respondent No.1 present in person.

Miss Sarwat Hina, Additional Prosecutor-General for the State.

Date of hearing: 5th June, 2012.

2012 P Cr. L J 1647

[Balochistan]

Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ

ABDUL MAJEED---Petitioner

Versus

THE ACCOUNTABILITY JUDGE-I, QUETTA and others---Respondents

C.P. No.369 and Criminal Ehtesab Appeal No.6 of 2012, decided on 19th June, 2012.

National Accountability Ordinance (XVIII of 1999)---

----S. 31-A--- Criminal Procedure Code (V of 1898), S. 87---Constitution of Pakistan, Arts. 9 & 10---Abscondence to avoid service---Appreciation of evidence---Incorrect address---Trial in absentia---Accused was convicted and sentenced under S.31-A of National Accountability Ordinance, 1999, for abscondence to avoid service---Validity---Warrants of arrest of accused and co-accused were issued and forwarded to police and Investigating Officer of the case but could not be executed---Proclamation under S.87, Cr.P.C. was issued and notice was affixed on notice board of the court---When reference was filed and proceedings under S.31-A of National Accountability Ordinance, 1999, were initiated against accused, he was present in another city and was unaware of the proceedings---Nothing was available on record which could prove that Trial Court issued any notice against accused at his address given in appeal---Prosecution failed to prove that accused had deliberately or wilfully absconded himself--- Trial in absentia was against the provisions of Arts. 9 and 10 of the Constitution, therefore, conviction and sentence awarded by Trial Court was not sustainable in the eyes of law---High Court set aside conviction and sentence awarded to accused under S.31-A of National Accountability Ordinance, 1999, and remanded that case to Trial Court for fresh trial.

Manzar Siddique for Petitioner.

Syed Abuzar Haider Rizvi, Special Prosecutor, NAB for the State.

Date of hearing: 5th June, 2012

2012 P Cr. L J 1674

[Balochistan]

Before Muhammad Noor Meskanzai and Abdul Qadir Mengal, JJ

ARSHAD MASIH---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.41 of 2010, decided on 28th June, 2012.

Penal Code (XLV of 1860)---

----Ss. 302(b), 315 & 316--- Qatl-e-amd, qatl-e-shibh-i-amd---Appreciation of evidence---Conversion of conviction from S.302(b), P.P.C. to S.316, P.P.C.---Deceased given a beating by accused (appellant) and co-accused persons during a Church congregation---Accused hit the deceased with a flowerpot in the heat of the passion---Said fact was corroborated by prosecution witnesses---Quarrel or attack upon the deceased in presence of a big gathering/congregation showed no prior intention on part of the accused and co-accused to kill the deceased---Findings of Trial Court qua intention of accused were not challenged by the complainant or prosecution---Effect---Accused was required to be sentenced under S.316, P.P.C.---Conviction and sentence of accused under S.302(b), P.P.C., was set aside and he was convicted and sentenced under S.316, P.P.C.---Appeal was disposed of accordingly.

Ali Hassan Bugti for Appellant.

Abdul Sattar Khan Durrani, Additional Prosecutor-General for the State.

Date of hearing: 19th June, 2012.

2012 P Cr. L J 1691

[Balochistan]

Before Muhammad Noor Meskanzai and Abdul Qadir Mengal, JJ

SHEY MUREED and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.255 of 2008, decided on 26th June, 2012.

Penal Code (XLV of 1860)---

----Ss. 302(b), 109 & 149---Qatl-e-amd, abetment, common object---Appreciation of evidence---Benefit of doubt---Case was full of doubts---One of the prosecution witnesses was sister of the deceased and other one was mother of the deceased and their statements got no support from other independent source---Co-accused was not armed with any weapon nor he played any effective role qua causing murder of deceased---Statement of one of the prosecution witnesses was also not in line with statement of other witness---Medical certificate also did not support the version of prosecution witnesses---Ingredients of S.109, P.P.C. were missing as accused could hardly be held responsible as an abettor in the incident---Nothing was available on record that at the time of progress of the commission of offence, accused was present and he instigated anyone to kill the deceased---No evidence was on record to show about conspiracy for commission of alleged murder---No recovery was made from any of accused and no direct role was assigned to the accused persons for giving any aid to the real culprits---Impugned judgment was set aside extending the benefit of doubt to accused persons--- Accused were ordered to be released, in circumstances.

2012 PCr.LJ 281; 2012 YLR 374; 2012 YLR 498; 1998 SCMR 25; 2006 SCMR 1291; 2009 SCMR 230; PLD 2005 SC 40; PLD 2009 SC 916; 2003 YLR 777; 2003 PCr.LJ 2003; 2001 YLR 985; 1995 PCr.LJ 924; 2011 PCr.LJ 289 and 2006 SCMR 1251 ref.

Nadir Ali Chalgari, Mallag Dashti and Muhammad Farooq for Appellants.

Liaquat Ali for the State.

Date of hearing: 4th June, 2012.

2012 P Cr. L J 1717

[Balochistan]

Before Mrs. Syeda Tahira Safdar and Abdul Qadir Mengal, JJ

ABDUL KHALIQ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.156 of 2010, decided on 28th June, 2012.

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

----S. 9(c)---Possession and smuggling of narcotics---Appreciation of evidence---Knowledge and conscious possession of narcotic---Scope---Huge quantity of narcotic lying on the rear seat of vehicle---Whether passenger of said vehicle would have knowledge and conscious possession of the narcotic---Scope---Failure to show any ill-will or motive for false implication---Effect---Accused was allegedly part of a caravan which was trying to smuggle narcotics across the border via Pakistan---Accused was apprehended from a vehicle, which was part of the caravan and after search of said vehicle 1280 kilograms of opium was found lying in the rear seat of the vehicle---Trial Court convicted the accused under S.9(c) of the Control of Narcotic Substances Act, 1997---Contentions of the accused were that he got a lift on the vehicle in question and subsequently was not allowed to get off the vehicle, and that the co-accused who was the driver of the vehicle, had control over the same, and the accused did not have knowledge or conscious possession of the narcotic---Validity---Accused was travelling in a vehicle, in which huge quantity of narcotic was lying on the rear seat, which gave the impression that he was involved along with the co-accused driver and had knowledge and conscious possession of the narcotic---Accused had failed to show that he had no conscious possession over the narcotic---Prosecution had successfully established the recovery of narcotic from the vehicle---Evidence further showed that accused was member of a gang, involved in smuggling narcotics across the border via Pakistan---Evidence of prosecution witnesses qua recovery of narcotic was corroborative and convincing and there was no contradiction in their statements---Accused had not shown that Anti-Narcotics Force officials had any enmity or ill will towards him to falsely involve him in the case---Appeal was dismissed, in circumstances.

Muhammad Yousaf for Appellant.

Shaukat Ali Rakhshani, Special Prosecutor ANF for the State.

Date of hearing: 11th June, 2012.

2012 P Cr. L J 1729

[Balochistan]

Before Muhammad Noor Meskanzai and Abdul Qadir Mengal, JJ

NAIMATULLAH---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.293 of 2008, decided on 19th June, 2012.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Accused was driver of the vehicle in question and was intercepted at a check; post and after search 150 kilograms of charas was alleged to have been recovered from secret cavities of the vehicle---Trial Court convicted the accused under S.9(c) of the Control of Narcotic Substances Act, 1997, but acquitted the co-accused, who was a passenger in the vehicle---Contentions of the accused were that on the same set of evidence the co-accused had been acquitted of the charge; that according to the F.I.R. 150 kilograms of charas was recovered whereas according to one of the prosecution witnesses after separating of samples for chemical analysis, the quantity of charas was still 150 kilograms, and that samples were sent for analysis after a delay of five days---Validity---Co-accused, who took the plea of taking a lift on the vehicle of the accused, had been acquitted by the Trial Court on the grounds that his case was on a different footing to that of the accused, as there was no direct or indirect evidence to connect him with the commission of the crime; as his knowledge about concealment of narcotic could not be brought on record; as he was a person of more than 65 years of age and had no relationship or tribal connection with the accused, and as there was a letter on record which revealed that relative of the co-accused had complained of his disappearance when he was supposed to be travelling back home---Said findings of the Trial Court in relation to the acquittal of the co-accused were plausible and justifiable---All the prosecution witnesses were cross-examined at length but the defence failed to create any dent or doubt in the prosecution case qua the accused---Report of Chemical Analyst proved that recovered narcotic was charas---Defence failed to point out that the samples were tampered with and did not dispute their safe custody, therefore, contention of accused regarding delay in sending samples was not helpful to him---Accused was intercepted at a blockade, therefore, there was hardly any occasion for availability of private witnesses and it was a recognized fact that general public remained reluctant to become a witness in cases similar to the present one---Accused being the driver of the vehicle was in conscious possession of the recovered narcotic---Appeal was dismissed and conviction and sentence awarded by the Trial Court was maintained.

2010 SCMR 841 and 2010 SCMR 927 ref.

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

----Preamble & S. 9---Cases concerning possession and transportation of narcotics---Minor procedural discrepancies---Effect---In narcotic cases approach of the court should be dynamic and minor irregularity or discrepancies must be overlooked.

Ismaeel v. The State 2010 SCMR 27 ref.

Tahir Hussain Khan for Appellant.

Date of hearing: 14th May, 2012.

2012 P Cr. L J 1756

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

BALOCH KHAN---Petitioner

versus

Haji AHMED SHAH and 2 others---Respondents

Criminal Miscellaneous (Quashment) Petition No.187 of 2012, decided on 29th June, 2012.

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

----Ss. 249-A, 265-K & 561-A---Powers of court to acquit the accused---Scope---Direct petition before the High Court for acquittal of accused instead of approaching the Trial Court first---Propriety---Powers of the Trial Court under Ss.249-A and 265-K, Cr.P.C. and that of the High Court under S.561-A, Cr.P.C., were co-extensive and it would be proper to approach the Trial Court in the first instance, but it was equally true that there was nothing to bar the High Court from entertaining, in appropriate cases, an application under S.561-A, Cr.P.C., directly in order to prevent the abuse of process of any court or otherwise to secure the ends of justice.

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

----Ss. 249-A, 265-K & 561-A---Penal Code (XLV of 1860), Ss.420/417/423---Cheating and dishonestly inducing delivery of property, cheating, dishonest or fraudulent execution of deed of transfer containing false statement of consideration---Quashment of F.I.R.--- F.I.R. recorded despite dispute being of a. civil nature---Effect---Allegation against the accused (petitioner) was that he bought land from the complainant (respondent) but failed to pay the complete amount for it and subsequently turned down the agreement and backed out from his promise---Contention of the accused was that the contents of the F.I.R. narrated only civil liability and did not disclose any criminal liability---Validity---Dispute between the parties was purely of civil nature and an attempt had been made to convert the same into criminal proceedings with ulterior motives---Narration in the F.I.R. did not constitute any offence---Accused had not sought quashment of criminal proceedings on the ground that the charge was groundless or that there was no possibility of the accused being convicted of an offence, but on the ground that the proceedings were ex facie without jurisdiction and continuation of the same would constitute abuse of process of the court---Quashment petition was therefore competent--Station House Officer (SHO) had no jurisdiction to lodge the report and the entire exercise was coram non judice---F.I.R. was quashed accordingly.

Abdul Ghani Mashwani for Petitioner.

Syed Mumtaz Hussain Baqri for Respondent No.1.

Muhammad Wasay Tareen, Prosecutor-General for the State.

Date of hearing: 22nd June, 2012.

2012PCr.LJ 1791

[Baluchistan]

Before Muhammad Noor Meskanzai J

ABDUL JABBAR---Petitioner

versus

MUHAMMAD SHARIF and 4 others---Respondents

Criminal QuashmentNo.291 of 2012, decided on 25th July, 2012.

Criminal Procedure Code (V of 1898)---

---Ss. 195 & 200---Penal Code (XLV of 1860), Ss. 193, 194 & 199--Constitution of Pakistan, Art. 199---Constitutional petition---Filing of complaint under S.195, Cr.P.C.---Scope---Complainant (petitioner) filed complaint under $.200, Cr.P.C., against accused persons (respondents) on grounds that they allegedly filed fake and fabricated affidavits in court--Maintainability--Said complaint was dismissed by Trial and Revisional Courts on merits as accused persons had confirmed the contents of their affiddvits---Validity---Accused persons had confirmed contents oftheir affidavits during the course of inquiry---Complaint filed also suffered from an inherent legal defect as there was a bar on taking, cognizance on such complaint within the meaning of S.195, Cr.P.C.---In case of offences contemplated under S.195, Cr.P.C., only the public authority or concerned court had the right to file a complaint and, unless, there was a complaint by public authority or court, as the case might be, no criminal court could take cognizance of such offences---Complaint filed by the complainant was not cognizable and deserved to be dismissed---Constitutional petition was dismissed.

Petitioner in person.

Attique Ahmed Khan, Additional P.-G. for Respondents.

Date of hearing: 12th July, 2012.

2012 P Cr. L J 1821

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

AJAB KHAN---Applicant

versus

THE STATE---Respondent

Criminal Miscellaneous Application No.73 of 2012 in Criminal Appeal No. 15 of 2012, decided on 3rd August, 2012.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss. 320/337-G/279---Qatl-e-khata by rash or negligent driving, hurt by rash or negligent driving, rash driving or riding on a public way,--Suspension of sentence---Release on bail to facilitate accused in payment of diyat and daman amount---Possibility of compromise---Accused was convicted and sentenced for 10 years imprisonment in addition to payment of diyat and daman---Death caused by rash and negligent driving was qatl-e­khata under 5.320, P. P. C., which was bailable and compoundable---Financial position of accused was weak and therefore he was unable to pay the diyat and daman amount in lump sum---Arranging a huge amount would not be possible for the accused while remaining behind bars---Release of accused would practically facilitate payment of diyat and daman amount---In case of release of accused on bail, there was also the possibility of compromise between parties, which could be better for keeping harmony and cordial relations between them in future---Application was allowed, operation of sentence was suspended and accused was released on bail.

Manzoor Ahmed Rehmani for Applicant.

Yahya Khan, D.P.-G. for the State.

2012 P Cr. L J 1847

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

KHADIM HUSSAIN---Applicant

versus

THE STATE---Respondent

Criminal Miscellaneous No.285 of 2012, decided on 27th July, 2012.

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

----S. 497 [as amended by S.3 of Code of Criminal Procedure (Amendment) Act (VIII of 2011)J---Penal Code (XLV of 1860), Ss.302, 324 & 452---Qatl-e-amd, attempt to commit qatl-e-amd, house-trespass after preparation for hurt,-assault or wrongful restraint---Conditional bail---Delay in conclusion of trial---Trial of accused had not concluded despite a delay of two and a half years---Trial Court had rejected an earlier bail application of the accused on the ground that he was a desperate and dangerous criminal due to his involvement in a previous murder case---Contention of accused was that he had earned statutory right to be enlarged on bail and any delay in trial could not be attributed to him---Validity---Trial Court had over-sighted the fact that accused was acquitted from the previous murder case, therefore, he could not be termed as a dangerous or desperate criminal---Prosecution undertook that trial of accused would be concluded within one month under all circumstances, therefore, directions were given to the Trial Court to conclude the trial within one month and in case same was not done, accused would be deemed to have been granted bail---Bail application was disposed of accordingly.

Criminal Acquittal Appeal No.219 of 2005 ref.

(b) Constitution of Pakistan---

---Art. 10A-- Right to fair trial--- Scope-- Delay in conclusion of trial---Effect---Right to fair trial necessarily included a trial without inordinate delay, because it was the right of every accused to stand trial within a reasonable time---Inordinate and scandalous delay in trial was not only an abuse of process of law and of court, but also violated fundamental right of access to justice.

Manzoor Ahmed Rehmani for Applicant.

Miss Sarwat Hina, Additional P.-G. for the State.

Date of hearing: 24th July; 2012.

2012 P Cr. LJ 1871

[Balochistan]

Before Abdul Qadir Mengal and Mrs. Syeda Tahira Safdar, JJ

THE STATE through Additional Prosecutor ATA---Appellant

versus

HASHIM KHAN and another---Respondents

Criminal Acquittal Appeal No.7 of 2007, decided on 26th July, 2012.

Penal Code (XLV of 1860)--

----Ss. 302, 324, 147,148 & 149---Anti-Terrorism Act (XXVII of 1997), Ss.7 & 25(4)---Criminal Procedure Code (V of 1898), S.265-F--- Qutl e-amd, attempt to Qatl-e-amd and rioting armed with deadly weapons---Appeal against acquittal---Appreciation ' of evidence---Essential witnesses, summoning of---Duty of Court---Complainant assailed judgment passed by Trial Court, whereby accused were acquitted of the charge---Validity---Contents of F.I.R. disclosed presence of eye-witnesses at the site and one of them was cited as witness but name of the most important person did not appear in calendar of witnesses--Investigating officer during course of investigation was bound to give names of eye-witnesses or other material witnesses in the list of prosecution witnesses and should have made efforts to locate them and procure their attendance before Trial Court, which had' not been done---Even Trial Court also failed to adopt legal course, neither issued summons thereby calling material and eye-witnesses to get acquainted with real, aspect of the case and to administer justice---All witnesses which were essential to unfolding of narrative on which prosecution was based, should have been called by prosecution, whether In the result effect of their testimony was for or against the case for prosecution---Trial Court was empowered under S.265-F(2), Cr.P.C. to ensure that proper witnesses, who were acquainted with facts of prosecution case should have been produced before it but the same was not done---Trial Court failed to fulfil its liability, therefore, in absence of material witnesses Ito decision could be arrived at---High Court set aside judgment passed by Trial Court and case was remanded for retrial and decision afresh by calling necessary witnesses of both the parties---Appeal was allowed accordingly.

Abdul Khaliq v. The State 1996 SCMR 1553; Riaz alias Mithoo v. The State 1995 SCMR 1730; Adrees v. The State 2002 SCMR 1439; Jaffar Ali Khan Durani v. The State 2004 PCr.LJ 1740; 2001 PCr.LJ 1564; Lal Khan V. The State 2006 SCMR 1846; Saeedullah v. Shah Nazar 2001 PCr.LJ 1740; Liaquat Ali v. The State 2008 SCMR 95; Dholu v. The State 2002 PCr.LJ 690; Hameed-ur-Rehman v. Said Rehman 2005 PCr.LJ 53; Allah Nawaz v. The State 2004 PCr.LJ 1564 and 2002 SCMR 4139 ref.

Malik Sultan Mehmood, Spl. Prosecutor ATA for Appellant.

Qahir Shah, Muhammad Igbal Kasi and Barrister Amir Muhammad Lehri for Respondents.

Date of hearing: 13th June, 2012:

2012 P Cr. L J 1950

[Balochistan]

Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ

Dr. MUHAMMAD AZAM KASI---Appellant

Versus

THE STATE through Deputy Prosecutor-General Accountability Court No.1, NAB, Quetta---Respondent

Criminal Ehtesab Appeal No.1 of 2012, decided on 25th July, 2012.

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

----S. 12---Constitution of Pakistan, Art. 23---Freezing of property right (Bank accounts) for unlimited period---Validity---Restriction can be imposed on acquiring, holding and disposing of property against any person, if so required but under the Constitution, such restriction must be reasonable---Any act or order resulting into freezing of property for unreasonable excessive period is outside the meaning of "reasonableness"---Both validity of law and action taken in such manner becomes justiceable from stand point of public interest.

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

----Ss.12 & 13---Constitution of Pakistan, Art. 23---Right to property---Freezing of property (Bank accounts)---Duration---Confirmation of freezing order---Pre-conditions---Non-filing of reference---Effect---Petitioner was accused facing trial before Accountability Court and his grievance was that his accounts could not be frozen for unlimited period---Validity---Freezing order and its confirmation period was limited by law for a reasonable time, therefore, no property should be ordered to be frozen for an unlimited period--- Purpose of request for confirmation of freezing order of Chairman NAB was to secure ill-gotten property from its disposal before decision of reference by Trial Court---Chairman NAB could pass order to freeze property on the basis of all possible evidence and material collected by investigating officer against accused---Period of fifteen days provided by National Accountability Ordinance, 1999, was to enable Chairman to prepare reference and send to court along with request for confirmation of freezing order---Such request was made by prosecutor, without reference, who was not certain as to when reference would be filed---Order passed by Trial Court confirming freezing of property, without reference, was considered to be for an unlimited period and the same was not only contrary to law but was also against provisions of Art. 23 of the Constitution---Pre-condition for confirmation of freezing order was that if there appeared reasonable ground for believing that accused has committed such offence and for believing that a person had committed an offence, there must have been some material before Trial Court---When no reference was filed before Trial Court, Trial Court, while confirming freezing order could not possibly believe that accused had committed offence under National Accountability Ordinance, 1999---High Court set aside order passed by Trial Court, as the same was contrary to provisions of S.12 of National Accountability Ordinance, 1999, and accounts frozen by Trial Court were released forthwith---Appeal was allowed, in circumstances.

Khan Asfand Yar Wali and others v. The Federation of Pakistan PLD 2001 SC 607 ref.

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

----S. 13---Objection to freezing order (Bank accounts)---Period of limitation---Determination---Remedy to aggrieved person has been provided under S.13 of National Accountability Ordinance, 1999---Period of 14 days has been provided for filing objections or claims against freezing order and Trial Court may extend the period upto further 14 days---To calculate period of limitation to file objections or claims, aggrieved person must be aware of passing of any freezing order, therefore, limitation starts running from date of knowledge---Necessary for the Trial Court to inform the person, whose property has been frozen under S.12 of National Accountability Ordinance, 1999.

Muhammad Qahir Shah and Javed Iqbal Kasi for Appellant.

Muhammad Afzal Jami, Deputy Prosecutor-General, NAB for the State.

Date of hearing: 21st June, 2012.

2012 P Cr. L J 1100

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

MUHAMMAD ISHAQ---Petitioner

versus

SHAHPAL and 2 others---Respondents

Criminal Revision Petition No.28 of 2011, decided on 16th February, 2012.

Criminal Procedure Code (V of 1898)---

----S. 205---Penal Code (XLV of 1860), Ss.440, 506, 337-A(ii), 337-F(v)/34---Mischief, criminal intimidation, causing Shajjah-i-Mudihah, hashimah and common intention---Dispensation with the personal attendance of accused---Scope---Challan of the case was presented before the Trial Court and on the very day the accused filed an application for exemption from personal appearance on the ground that he was British National and whole of his family resided in England; and that he wanted to proceed to U.K. for sometime---Trial Court vide impugned order allowed dispensation to accused from personal appearance---Validity---Accused who was incapable of remaining before the court, his appearance could be dispensed with by the court due to inadequate physical and mental power and due to some personal liability, unfitness and disability to remain before the court and perform his function and duties---Accused had clearly mentioned his intention of inability; and he had chosen to defend himself through a counsel with the permission of the court---Complainant had not been prejudiced in any manner---Impugned order had been properly passed in accordance with judicial principles, which was sustainable.

Zaffar Rolvi for Petitioner.

Kh. Abdul Basit for Respondents.

2012 P Cr. L J 452

[Supreme Court (AJ&K)]

Present: Khawaja Shahad Ahmed, C.J., Muhammad Azam Khan and Kh. Attaullah Chak, JJ

GHULAM RASOOL and others---Appellants

Versus

THE STATE through Advocate-General for Azad Jammu & Kashmir Government and others---Respondents

Criminal Appeals Nos. 11, 12 and 13 of 2008, decided on 20th April, 2011.

(On appeal from the judgment of the Shariat Court dated 2-5-2007 in Criminal Appeals Nos. 71, 67, 69, 70 of 2006 and Reference No.68 of 2006.)

(a) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)---

----Ss. 3, 5, 15 & 25--- Qatl-e-amd--- Appreciation of evidence---Complainant who appeared as prosecution witness, was cross-examined at a considerable length, but he stuck to the version taken in the F.I.R. and examination-in-chief---Said witness, though had made some improvements in the statement contrary to the one recorded by the Police under S.161, Cr.P.C., but such improvements were not of substantial nature---Another prosecution witness gave details of the occurrence---No suggestion was put to the said witness that he and other witnesses were not present on the spot and had not witnessed the occurrence---Said witness was resorted to lengthy cross-examination and major portion of cross-examination was in respect of identification parade---No enmity was suggested to the said witness---Apart from the complainant and other witness who were real brothers of deceased, three other independent witnesses also appeared who were not related to the complainant party nor any enmity was suggested to them---Said independent witnesses were inhabitants of the locality and fully corroborated the statement of the complainant and other witness---In presence of such independent and non-partisan witnesses, whose testimony was confidence-inspiring and rang true, statements of the complainant and the related witness, could not be brushed aside---Statements of all said prosecution witnesses were confidence-inspiring which could be relied upon---Dying declaration of injured who later on died which was an important piece of evidence, was correctly recorded by Police---F.I.R. which was correctly recorded, was neither false and fabricated document nor was recorded one day after the occurrence, as alleged by the defence---Site plan corroborated the prosecution case---Long history of enmity existed between the parties---Carbine, was recovered in presence of witnesses who proved the same in the court---Investigating Officer who appeared in the court had proved its recovery from accused in the presence of witnesses whose evidence was confidence-inspiring---When case of prosecution rested upon the direct evidence, corroboratory evidence before Ballistic Expert's report, would not be insisted upon---Prosecution had successfully proved the motive by the reliable evidence and said important corroboratory piece of evidence, could be read against the accused---Recovery of crime empties from the place of occurrence, broken pieces of glass, blood-stained earth, recovery of weapons of offence from accused, injury reports of the deceased, post-mortem report of deceased and Chemical Examiner's report, were all corroborative pieces of evidence, wherefrom prosecution version was proved and the Trial Court as well as the Shariat Court had believed the corroboratory piece of evidence---Prosecution, in circumstances, had proved its case from cogent, coherent, natural and reliable testimony of the eye-witnesses---One appeal was dismissed while one was partly accepted and the other appeal was dismissed, in circumstances.

Mary NG v. The Queen PLD 1959 PC 34; Khawand Bakhsh and others v. The State PLD 2000 SC 1; Muhammad Yousuf alias Baggi v. The State 1995 PCr.LJ 1262; Abdul Rehman and another v. Muhammad Mushtaq and another PLD 2007 SC(AJ&K) 77; Muhammad Akhtar and another v. The State 2009 YLR 1092; Bashir and 3 others v. The State PLD 1991 SC 1145 and Talib Hussain and others v. State 1995 SCMR 1776 ref

Mst. Shamim Akhtar v. Fiaz Akhtar and 2 others PLD 1992 SC 211; Javaid Azam and 2 others v. Muhammad Saleem and the State and 9 others 1997 PCr.LJ 1865; Sardar Khan and 3 others v. The State 1998 SCMR 182; Mary NG v. The Queen PLD 1959 PC 34; Khawand Bakhsh and others v. The State PLD 2000 SC 1; Muhammad Yousuf alias Baggi v. The State 1995 PCr.LJ 1262 and Abdul Rehman and another v. Muhammad Mushtaq and another PLD 2007 SC (AJ&K) 77 rel.

(b) Azad Jammu and Kashmir Islamic Penal Laws (Enforcement) Act (IX of 1974)--

----Ss. 3, 5, 15 & 25---Qatl-e-amd---Appreciation of evidence---Testimony of related witness---Testimony of a related witness could not be discarded merely on the basis of relationship---Testimony of an inimical witness had to be looked into with great care and caution---When the witnesses were interested and inimical towards accused, their testimony could not be believed without corroboration.

Abdul Aziz v. Muhammad Lal and 2 others 2001 YLR 236; Muhammad Rashid Khan v. The State 1984 PCr.LJ 93; Muhammad Sharif v. The State PLD 1978 SC (AJ&K) 146; Irfan Khan alias Fani v. The State 2008 PCr.LJ 517 and Muhammad Akhtar and another v. The State 2009 YLR 1092 rel.

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

----S. 154---F.I.R. was a document on the basis of which the police machinery was activated and set in motion for investigation---Not necessary that the F.I.R. should contain minor details.

Muhammad Yousuf alias Baggi v. The State 1995 PCr.LJ 1262; The State v. Waheed Iqbal 2005 PCr.LJ 1348 and Jan Muhammad v. Muhammad Ali and 3 others 2002 SCMR 1586 rel.

(d) Criminal trial---

----Site plan---Site plan was not a substantive piece of evidence; it was only prepared for the purpose of appreciating the evidence and the crime scene could be easily explained.

Sardar Khan and 3 others v. The State 1998 SCMR 1823 and Mst. Shamim Akhtar v. Fiaz Akhtar and 2 others PLD 1992 SC 211 rel.

(e) Azad Jammu and Kashmir Islamic Penal Laws (Enforcement) Act (IX of 1974)--

----Ss. 3, 5, 15 & 25---Criminal Procedure Code (V of 1898), Ss.30, 31, 32, 34 & 35---Qatl-e-amd---Punishment, award of---Trial Court awarded sentence of 10 years' rigorous imprisonment on five counts, in total 50 years to accused and sentences to run consecutively---Benefit of S.382-B, Cr.P.C. was also given to the accused---Shariat Court, on appeal, found that under proviso (a) of subsection (2) of S.35, Cr.P.C. a sentence greater than the originally provided for the offence could not be awarded---Section 35(2), Cr.P.C. dealt with only those courts which had limited power to order sentence---Shariat Court and the District Criminal Courts were authorized by law to pass any sentence provided for the offences---Magistrate had limited power to sentence under Ss.30, 31 and 34, Cr.P.C. while Shariat Court and the District Criminal Court could pass any sentence under S.31, Cr.P.C.---Restriction laid down in proviso to subsection (2) of S.35, Cr.P.C., was not applicable to District Criminal Court/Sessions Judge while convicting an accused---District Criminal Court could pass any sentence authorized by law.

Bashir and 3 others v. State PLD 1991 SC 1145 rel.

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

----S. 544-A--- Compensation to the heirs of deceased--- Scope---Under S. 544-A, Cr.P.C., it was obligatory for the court to award compensation to the legal heirs of the deceased persons---Section 544-A, Cr.P.C., was not applicable at the time of occurrence---Compensation in the case could not be awarded under S.544-A, Cr.P.C.

(g) Azad Jammu and Kashmir Islamic Penal Laws (Enforcement) Act (IX of 1974)--

----Ss. 3, 5, 15, 24 & 25---Award of sentence as 'Tazeer'---Conversion of death sentence as 'Qisas'---Counsel for the complainant had contended that the death sentence awarded to accused as "Tazeer" be converted into death sentence as "Qisas"---Contention was repelled because the Trial Court had reached the conclusion that the eye-witnesses were "Ghair aadil"---Under S.24 of Azad Jammu and Kashmir Islamic Penal Laws (Enforcement) Act, 1974, if a witness was found "Ghair aadil", the sentence of "Qisas" could not be imposed---Court was competent to pass alternate sentence or sentences provided under S.3 of the said Act---Witnesses having been found "Ghair aadil", Trial Court correctly passed the sentence of death as 'Tazeer'.

(h) Azad Jammu and Kashmir Islamic Penal Laws (Enforcement) Act (IX of 1974)--

----Ss. 5, 15 & 25---Acquittal---Trial Court acquitted accused and the Shariat Court maintained the acquittal order---Acquittal order passed in favour of accused had double presumption of innocence.

Sardar Muhammad Hussain Khan for Ghulam Rasool and Zameer Hussain.

Sardar Shamshad Ahmed Khan for Muhammad Irfan and others.

Sardar Abdul Hameed Khan for Ahsan-ul-Haq and others.

Syed Ejaz Ali Gilani, Additional Advocate-General for the State.

Date of hearing: 10th January, 2011.

2012 P Cr. L J 718

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

SHAFQAT HUSSAIN and others---Appellants

Versus

THE STATE through Advocate-General Azad Jammu and Kashmir, Muzaffarbad and others---Respondents

Criminal Appeals Nos. 28 and 30 of 2003, decided on 13th January, 2012.

(On appeals from the judgment of the Shariat Court dated 28-10-2003 in Criminal Appeal No.9 of 2003).

(a) Penal Code .(XLV of 1660)---

----Ss. 302/324/337-A(ii)/337-F(i)---Qatl-e-amd, attempt to commit gatl­e-amd, causing Shajjah-i-Mudiah and Badi'ah---Reappraisal of evidence---Incident was a broad-daylight occurrence and F.I, R. having been lodged promptly, question of substitution of accused did not arise---Question of identification stood fully proved as the parties were known to each other---Presence of the eye-witnesses on the spot was fully proved---Said witnesses remained consistent with their statements on all material points and their testimony could not be discarded, merely on the ground of relationship---Even otherwise they were independent witnesses and their presence on the spot at the time of occurrence was established---Accused had come on the spot with fire-arm weapons, which had shown that the occurrence was preplanned and premeditated and it was not a case of sudden provocation---StAtement of complainant, was in line with the facts narrated in the F.I.R. and no contradiction was found in his statement---Widow of deceased had also implicated the accused in the F.I.R.---Corroboration had been made by the statement of independent witness---Presence of all the witnesses at the spot could not be disbelieved, when three eye-witnesses were injured and two of them were independent, who had no relationship with any of the parties---Statement of the eye-witnesses were beyond any doubt, which were further corroborated by medical evidence---Accused, could not prove that it was a free fight and was not a premeditated---Participation of accused with the lethal weapons which resulted into death of one person and injuring three other persons was not denied which showed their common intention of attacking at the complainant party---Place of occurrence was a well populated.area and a number of persons came there for the rescue of the complainant party---Possibility could not be ruled out that the injuries caused to accused were due to grappling and pelting of stones---Where there was direct and unimpeachable evidence, non-sending of empties to Forensic Science Laboratory for analysis, would not make the case doubtful and it would become irrelevant---Prosecution, in circumstances, had been successful in proving its case beyond any reasonable doubt---Judgment passed by the Shariat Court, whereby judgment passed by the Trial Court was modified, was perverse, arbitrary and capricious needing interference by the Supreme Court---Appeal filed by accused was dismissed, whereas appeal by the complainant was accepted---Judgment passed by the Trial Court was restored, in circumstances.

Sattar Khan and another v. The State PLD 1970 Pesh. 185; Nest. Shaukata v. The State PLD 1985 Pesh. 163; Manzoor Masih v. The State PLD 1995 SC 307; Muhammad Iqbal and 3 others v. The State 1992 SCMR 1517; Talili Hussain v. Tasawar Hussain and others 2000 YLR 515 and Shabbir Ahmed v. The State 1997 PCr.LJ 1539 distinguished.

Muhammad and others v. The State PLD 1962 SC 450; Majid v. The State 1971 SCMR 693; Lalu v. The State PLD 1959 SC (Pak.) 258; Rashid Ahmad and another v. The State 1996 PCr.LJ 314; Muhammad Hanif v. State 2000 SCMR 1805; Saleem Khan v. The State 2001 PCr.LJ 503; The State v. Liaquat Hussain and others 2005 MLD 1425; Muhammad Khurshid Khan v. Muhammad Basharat PLD 2007 SC(AJ&K) 27; Mehrban v. The State PLD 1978 SC(AJ&K) 96; Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others 2001 PCr.LJ 524; Muhammad Abbas alias Abbasio v. The State 2008 SCMR 1527; Abdul Aziz v. Muhammad Lal and 2 others 2001 YLR 236; Muhammad Waris v. The State 2008 SCMR 784; Mehtab Khan v. The State PLD 1979 SC(AJ&K) 23; Khizar Hayat v. The State 2001 SCMR 429 and Muhammad Attiqu v. The State 2011 SCMR 1378 rel.

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

----Ss. 302/324/337-A(ii) & 337-F(i)---Qatl-e-amd, attempt to commit qatl-e-amd, causing Sha,,tjalt-i-Mudhah and. Badiah-Reappraisal of evidence---Statement of a witness on account of being interested, could only be discarded, if it was proved that the witness had ulterior motive of falsely implicating an accused---Mere relationship per se, would not discredit the testimony of the eye-witness---Testimony of a related eye-witness, was reliable, if the evidence of a witness was otherwise found trustworthy and rang true.

(c) Criminal trial---

---Site plan---Site plan was not a substantive piece of evidence; it was prepared to understand and appreciate or explain the ocular and the other evidence brought on record.

Arshad Mahmood and another v. The State and another 2010 SCR 75 rel.

(d) Criminal trial---

---- Evidence--- Quantity and quality of evidence--- Quantity of evidence was not relevant, but the quality of evidence had to be seen. [p. 730] I

Asghar Ali Malik for Appellants.

Raja Muhammad Hanif Khan for the Complainant.

Raja Ghazanfar Ali, Advocate-General and Ch..

Shaukat Aziz, Additional Advocate-General for the State.

Date of hearing: 21st December, 2011.

2012 P Cr. L J 1108

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

TASSADUQ HUSSAIN GILLANI---Petitioner

versus

THE STATE through Advocate-General and 3 others---Respondents

Criminal Revision Petition No.5 of 2005, decided on 2nd March, 2012.

(Revision Petition from the order of the Shariat Court dated 28-2-2005 in Criminal Revision Petition No.116 of 2004).

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

----S. 514---Forfeiture of bond---Scope---Under S.514, Cr.P.C., three stages were required to be followed before passing final order for forfeiture of bond; (i) where the bond was for appearance of an accused, as soon as accused would absent himself in violation of the bond executed by him or his surety, the first step to be taken by the court was to satisfy itself that accused had violated the terms and conditions of the bond, and if the bond was liable to be forfeited, the court would pass order for its forfeiture while recording the reasons in that respect; (ii) second step to be taken by the court was to call upon the person bound by such bond to pay the penalty thereof or to show cause as to why the penalty should not be paid; (iii) third step to be taken by the court was, if instead of making the payment, the person bound by the bond would offer explanation, then by recording reasons, he would be asked as to why the offer made by him should or should not be accepted.

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

----S. 514---Penal Code (XLV of 1860), S.302---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Qatl-e-amd---Forfeiture of bond---Scope---Father of the petitioner, who stood surety for accused after executing a surety bond, later on died---Accused for whom deceased stood surety, violated the terms of bond as he did not appear in the court on the date fixed for hearing and absconded and bond was forfeited---Bond having been forfeited before death of the surety, the court had rightly passed the order for attachment of landed property to recover the forfeited amount of the bond---Contention of the counsel for the petitioner that proper procedure was not followed, had no substance---Provisions of S.514, Cr.P.C. were mandatory in nature, which had been complied with in letter and spirit---No ambiguity existed that the Trial Court before passing final order, had not adopted the mandatory procedure---Under subsection (2) of S.514, Cr.P.C., if sufficient cause was not shown and the penalty was not paid, the court could proceed to recover the same by issuing a warrant for the attachment and sale of the movable property belonging to such person or his estate, if he was dead---Contention that recovery could only be made after attachment of movable property; was misconceived---Absconded accused was involved in a murder case and according to record he actively participated in the occurrence and he was assigned a specific role---Once it had been proved that penalty was liable to be imposed, then entire amount should be recovered---Order passed by the Trial Court which was affirmed by the Shariat Court, had been passed in proper exercise of discretion, which needed no interference by the Supreme Court---Both the courts below had examined the matter in its true perspective, and rightly came to the conclusion that entire amount of bond executed by the surety, be recovered after the sale of property belonging to the deceased surety.

Roshan v. The State PLD 2001 Kar. 17; Ch. Muhammad Younus and another v. Robkar-e-Adalat and another 2001 MLD 673 and Muhammad Hussain and another v. The State PLD 1995 SC 348 rel.

Dildar and another v. The State PLD 1963 SC 47 and Malik Sher Ahmad Khan v. The State 1996 SCMR 244 distinguished.

(c) Words and phrases---

----"Estate", Meaning, explained.

Chambers 21st Century Dictionary and Black's Law Dictionary Fifth Edition ref.

(d) Discretion---

----Exercise of---Scope---Discretion exercised by a court ordinarily could not be interfered with in routine, unless it was shown that the same had been exercised arbitrarily, fancifully or against the principles laid down by the superior courts.

Muhammad Yaqoob Khan Mughal for Petitioner.

Raja Ghazanfar Ali, Advocate-General for the State.

2012 P Cr. L J 1174

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Chaudhry Muhammad Ibrahim Zia, J

TAHIR MAHMOOD---Appellant

Versus

THE STATE through Advocate-General---Respondent

Criminal Appeal No.1 of 2011, decided on 19th November, 2011.

(On appeal from the order of the Shariat Court dated 21-12-2012 in Criminal Revision Petition No.40 of 2009).

Criminal Procedure Code (V of 1898)---

----S. 173---Penal Code (XLV of 1860), Ss.353, 186, 337-A, 337-F & 506---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Assault or criminal force to deter public servant in discharging public function; causing Shajjah and Ghayr Jaifah and criminal intimidation---Police report---Scope---Case was registered against appellant/accused and Police after necessary investigation submitted report under S.173, Cr.P.C. for cancellation of the case---Tehsil Criminal Court, while disagreeing with the opinion of the Police, summoned the accused and fixed the date of hearing---Appellant/accused challenged said order of the Tehsil Criminal Court by way of filing revision petition which was dismissed---Validity---Police under S.173, Cr.P.C. after investigation, had to submit the report in the court of competent jurisdiction---Police had no jurisdiction to hold a person innocent or guilty---Only the court had the jurisdiction to declare a person innocent or guilty of the offence---Court was not bound by the ipse dixit of the Police---Before passing an order on the report of Police, the Magistrate had to examine the record and form the opinion, whether the Police report was correct; and the request of Police for cancellation of the case, was genuine or not---If the Magistrate would reach to the conclusion after perusal of the record that the Police had reached to the correct conclusion after investigation that the case was false, then he had to cancel the case---If however, the Magistrate would reach to the conclusion that accused appeared to be connected with the crime; and there was sufficient material for trial of the case, then he would summon accused for trial---Courts were not bound by the opinion of the Police, but it had to form its independent opinion on the basis of material brought before it---Tehsil Criminal Court, was not bound by the report submitted before it by the Police, had correctly issued process for summoning the accused for trial.

Sardar Muhammad Nazir Khan v. Javed Iqbal and 6 others 1996 PCr.LJ 569; Muhammad Yunus and another v. Malik Muhammad Nawaz and 5 others 1997 SCR 125; Jamshed Khan and 4 others v. The State 1999 PCr.LJ 1891; Muhammad Arshad v. Muhammad Mushtaq and 5 others 2004 MLD 1797 and Sabir Hussain and 4 others v. Abdul Karim and another 2004 SCR 119 rel.

Sardar Abdul Hamid Khan Advocate for Appellant.

Muzaffar Ali Zafar Additional Advocate-General for the State.

Date of hearing: 20th October, 2011.

2012 P Cr. L J 1200

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

KAMRAN alias KAMI---Appellant

Versus

THE STATE through Additional Advocate-General, Mirpur and another---Respondents

Criminal Appeal No.49 of 2010, decided on 14th July, 2011.

(On appeal from the judgment of the Shariat court dated 15-10-2010 in Criminal Appeal No.22 of 2010).

Penal Code (XLV of 1860)---

----S. 377---Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood) Act, 1985, S. 12---Sodomy---Reappraisal of evidence---Sentence, reduction in---Doctor, after receiving the report from the Chemical Examiner, issued final medico-legal report, wherein it was reported that sexual intercourse had been committed with the victim---Unexplained delay of four and half hours in filing F.I.R.---Where family prestige or respect was involved and child of someone was defamed, people were reluctant in filing report to the Police and it was a natural course that the father of victim must have consulted his relatives, whether to file report or not; and after consultation he had filed the report---Delay in filing F.I.R., in circumstances, was natural and same was not material to the case---Where a child of 11 years could be defamed for whole life, no father would involve an innocent person in the false case---Witnesses in the case were reliable---Accused was convicted on the basis of statement of the victim and medico-legal report---Trial Court also considered the corroboratory evidence---Shariat Court had fully appreciated the evidence and concurred with the judgment of the Trial Court---Statements of prosecution witnesses were confidence inspiring which rang true---Relative witness was as much a competent witness as any other, provided he was not inimical towards accused and had a motive to implicate accused in the false case---Solitary statement of victim was sufficient to convict accused in case of sodomy or Zina, if it was confidence inspiring---Case against accused was proved from the statement of victim, medico-legal report and statement of the Doctor---Trial Court, in circumstances, had correctly reached the conclusion that the case of sodomy was proved against accused---Maximum punishment which could be awarded under S.377, P.P.C., was ten years' imprisonment, but accused who was a young boy of tender age, had no previous record of crime---Sentence of 10 years awarded to accused, was reduced to 5 years, in circumstances.

Masood Anwar alias Bhattu v. The State 1987 PCr.LJ 289(2) and Muhammad Ikram v. The State 1987 PCr.LJ 827 ref.

Saleem Khan and others v. The State and others 2001 PCr.LJ 503; Masood Anwar alias Bhattu v. The State 1987 PCr.LJ 289(2) and Muhammad Ikram v. The State 1987 PCr.LJ 827 rel.

Raja Niaz Ahmed Advocate for Appellant.

Muzaffar Ali Zaffar, Additional Advocate-General for the State.

Sardar Ejaz Nazir, Advocate for the Complainant.

Date of hearing: 3rd June, 2011.

2012 P Cr. L J 1234

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, and Raja Saeed Akram Khan, JJ

MUHAMMAD IQBAL---Appellant

Versus

ABDUL QAYYUM and another---Respondents

Criminal Appeal No.21 of 2010, decided on 20th January, 2012.

(On appeal from the judgment of the Shariat Court dated 15-2-2010 in Criminal Revision Petition No.78 of 2009).

Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood) Act, 1985---

----Ss. 10/16/19---Azad Jammu and Kashmir Islamic Penal Laws (Enforcement) Act (IX of 1974), S.25---Zina or Zina-bil-Jabr liable to tazir, enticing or taking away or detaining a woman with criminal intent---Bail, grant or refusal of---Criteria---All the co-accused, in the present case, were enlarged on bail---Application of accused for grant of bail was rejected by the Trial Court, but Appellate Court below granted bail on the ground that the matter was one of further inquiry---Complainant challenged the propriety of bail granting order in the Shariat Court, which was dismissed---Validity---Accused and alleged abductee had taken specific defence that they had contracted marriage and that they were also parents of a baby---No final conclusion could be drawn by the courts at the bail stage, and only tentative assessment of fact had to be made---Commission of alleged offence by accused required further probe---Other co-accused having already been enlarged on bail, propriety of rule of consistency would go in favour of accused---Criteria for granting and recalling bail was quite different---Once a bail was granted to an accused by the court of competent jurisdiction, that could only be recalled, if it would appear that it had been granted in violation of the principles of law, without application of judicial mind or in arbitrary or capricious manner---No such proposition being involved in the case court below while granting bail to accused had not violated the principles of law; and there were no compelling reasons to recall the concession of bail, extended to accused.

Raja Inamullah Khan Advocate for Appellant.

Raja Ghanzafar Ali, Advocate-General and Ch. Muhammad Ashraf Ayaz Advocate for Respondents.

Date of hearing: 18th January, 2012.

2012 P Cr. L J 1411

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

MUHAMMAD KHURSHID KHAN---Appellant

Versus

MUHAMMAD RAHIM KHAN and 2 others---Respondents

Criminal Appeal No.4 of 2011, decided on 13th June, 2011.

(On appeal from the judgment of the High Court dated 30-5-2008 in Revision Petition No.2 of 2005).

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

----S. 145---Dispute concerning land likely to cause breach of peace---Procedure---Purpose---Main purpose of proceedings under S.145, Cr.P.C. was to maintain the peace and tranquillity, and to avoid the breach of peace---Magistrate would proceed only after satisfaction that there existed a dispute over possession of immovable property likely to cause breach of peace---Proceedings under S.145, Cr.P.C. before the Magistrate were not the ultimate solution of the problem, but in fact were of preventive nature for the time being; and subject to the final resolution of the controversy by the court of competent jurisdiction.

(b) Civil Procedure Code (V of 1908)---

----S. 94 & O.XL, R.1---Criminal Procedure Code (V of 1898), S.145---Powers of civil court for issuance of interim injunction, attachment of the property and appointment of receiver---Provision of S.94, C.P.C. and that of S.145, Cr.P.C.---Comparison---Legislature had vested the civil court with vast powers, not only for issuance of interim injunction, but included the powers of attachment of the property and appointment of the receiver in respect of dispute regarding the property---Civil court was empowered to issue any order to prevent the ends of justice from being defeated including the appointment of a receiver of a property in question and to enforce the performance of duties by attaching and selling his property; and all other interlocutory orders as could appear to the court to be just and convenient---Comparison of the legal provisions of S.145, Cr.P.C. and S.94, C.P.C., in juxtaposition would help to observe that the powers of attachment, under S.145, Cr.P.C., were limited and bound by certain limits; whereas powers vested under S.94, C.P.C., were much wider and comprehensive---If at any stage of proceeding a situation would arise, demanding the attachment of property and appointment of receiver, the powers could be best used by the civil court---Parties were always at liberty to apply to the civil court in that regard; and if they succeeded in making out a case for application of the provision of S.94, C.P.C. read with O.XL, C.P.C., the court could proceed according to law---Simultaneous continuation of proceedings under S.145, Cr.P.C. along with civil suit would not serve any just cause or to be fruitful or beneficial for any of the parties.

(c) Civil Procedure Code (V of 1908)---

----S.94---Criminal Procedure Code (V of 1898), S.145---Procedure where dispute concerning land was likely to cause breach of peace---Continuation of simultaneous proceedings under S.94, C.P.C. and that under S.145, Cr.P.C.---Validity---Issuance of interim injunction by the civil court---Both the parties in the case, had approached the civil court through independent suits---Interim injunction had been issued by the civil court---Not a single incident of breach of peace had occurred during the last decade---Continuation of proceedings under S.145, Cr.P.C. in such situation, not only would amount to misuse of process of law and courts and wastage of time, but also to drag the parties into uncalled for litigation---Apprehension of conflicting findings of the civil court and criminal court could not be ruled out; for the ends of justice and avoiding such hardships and an anomalous situation, proceedings in civil and criminal court could not run simultaneously---When the possession of the disputed property was regulated by civil court, the continuation of proceedings under S.145, Cr.P.C., were not approved.

Muhammad Nazir Khan's case 1997 MLD 2055; Suleman Khan v. Abdul Aziz and 33 others 1983 PCr.LJ 2590; Shah Muhammad v. Haq Nawaz and others PLD 1970 SC 470 and Mehr Muhammad Sarwar and others v. The State and 2 others PLD 1985 SC 240 rel.

Kh. Muhammad Nasim, Advocate for Appellant.

Syed Nazir Hussain Shah Kazmi, Advocate for Respondents.

Date of hearing: 7th June, 2011.

2012 P Cr. L J 1650

[Supreme Court (AJ&K)]

Before Khawaja Shahad Ahmed, C.J. and Ch. Muhammad Ibrahim Zia, J

KHAWAR ABBAS SIKANDAR---Applicant

Versus

THE STATE through Advocate-General, Mirpur (AJ&K)---Respondent

Criminal Miscellaneous No.160 of 2009, decided on 11th November, 2010.

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----Ss. 42(2) & 42-A---Azad Jammu and Kashmir Supreme Court Rules, 1978, O.XLIII, Rr.1, 2 & 5---Criminal Procedure Code (V of 1898), Ss.561-A & 382-B---Penal Code (XLV of 1860), S.302(b)---Qatl-e-amd---Absconsion of accused---Application for rehearing of appeal---Applicant/accused on completion of trial was absconded and was awarded sentence of life imprisonment---Accused who opted for absconsion for a period of about three years, filed an application under S.561-A, Cr.P.C. for treating it as appeal for setting aside the conviction order---Said application of accused having been dismissed up to Supreme Court, he had not filed any review petition and remained mum for a period of near about five years and thereafter he had filed application for revival and rehearing of appeal---Under the provisions of Azad Jammu and Kashmir Interim Constitution Act, 1974 and other relevant laws, Supreme Court was vested with appellate jurisdiction with the exception of revision against the order of Shariat Court under the provisions of S.25 of the Islamic Penal Laws Enforcement Act, 1974---Against the appellate or revisional orders, powers of review were also available subject to certain conditions, but neither the Constitution nor any other law had conferred the original jurisdiction on Supreme Court---Powers of the Supreme Court postulated under S.42-A of Azad Jammu and Kashmir Interim Constitution Act, 1974 were ancillary and residuary to the jurisdiction conferred on Supreme Court by the Constitution and the law, which were exercised in any case or matter pending before the court---Powers enumerated in said section, could only be exercised for doing complete justice in any case or matter pending before the Supreme Court---No independent application for rehearing or review of such past and closed case, was entertainable after final determination of matter by the Supreme Court in an appeal or review---Accused had clearly confessed in his application that he had left abroad without court's permission and that after a period of near about three years had approached the court---Such conduct of accused had proved that he had no respect for law and courts, even was not diligent for seeking relief from the courts---Application of accused under S.561-A, Cr.P.C. lacked reasonable explanation of his absconsion---Both the Shariat Court and Supreme Court in previous round had passed speaking orders which were well reasoned---Accused on merits having no case, his application filed incompetently stood rejected, in circumstances.

Saeed Akhtar and others v. The State 2000 SCMR 383; Sardar Muhammad Yasin Khan v. Government of Azad Jammu and Kashmir and 43 others PLD 1986 SC (AJ&K) 63; Mehr Zulfiqar Ali Babu and others v. Government of Punjab and others PLD 1997 SC 11 and PLD 2005 SC 842 rel.

Muhammad Idrees Mughal, Advocate for Applicant.

Advocate-General for the State.

Date of hearing: 29th September, 2010.

2012 P Cr. L J 1781

[Supreme Court (AJ&K)]

Present Ch. Muhammad Ibrahim Zia, and Sardar Muhammad Sadiq Khan, JJ

PINNU KHAN and another---Appellants

versus

ISHTIAQ and another---Respondents

Criminal Appeal No.50 of 2010, decided on 30th March, 2012.

(On appeal from the order of the Shariat Court dated 20-10-2010 in Criminal Revision

Petition No.95 of 2010)

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 337-F(iv) & 34---Attempt to commit gall-a-amd, causing Mudihah to any person---Bail, grant of---Further inquiry---Accused was alleged to have caused a simple injury at the leg of the complainant, which was a non-vital part of the body and punishment provided for the same was less than 10 years---Where the punishment provided was less than 10 years, alleged offence would not fall within the prohibitory clause of S.497(I), Cr.P.C.---Accused had not repeated the act of firing---Challan of the case had already been submitted by the Investigating Agency before the Trial Court---Statements of complainant and one of the eye-witnesses, had also been recorded---Accused was no more required by the Police for further investigation---Sending accused behind the bars, would serve no purpose, in circumstances---Case against accused was not of heinous nature, but was a case of simple injury caused on non-vital part of the body of the complainant---Impugned judgment of Shariat Court whereby bail was granted to accused, was quite in line with the principles governing the bail matter, same needed no interference by the Supreme Court---Supreme Court would not interfere with the discretion exercised by the Shariat Court in bail matters, unless same was shown to be perverse, capricious or against the law.

Khurshid Ali and 9 others v: State 2006 PCr.LJ 462; Mian Tauqeer Zafar v. The State 2006 PCr.LJ 418; Muhammad Shafique v. The State 2006 PCr.LJ 423; Tubassam Ahmed Qureshi v. The State 2000 PCr.LJ 105. and Baggoo v. The State and others 1993 SCR 65 distinguished.

Bahadur Said v. The State and another 2007 PCr.LJ 1667; Saeed and another v. The State 2008 PCr.LJ 1139; Mian Touqeer Zafar v. The State 2006 PCr.LJ 418; Muhammad Shafique V. The State 2006 PCr.LJ 423; Muhammad Khurshid v.. The State 1996 PCr.LJ 544; Ali Gul v. State 1994 PCr.LJ ,1762 and Muhammad Miskeen v.. Muhammad Ayub 1992 SCR 379 rel.

M. Reaz Alam, Advocate for Appellants.

Ch. Muhammad Anwar, Advocate for the Accused-Respondents.

Muzaffar Ali Zafar, Additional Advocate-General for the State.

Date of hearing: 20th March, 2012.

2012 P Cr. L J 1936

[Supreme Court (AJ&K)]

Present Muhammad Azam Khan, C.J. and Sardar Muhammad Sadiq Khan, J

WAQAS MEHMOOD and another---Appellants

Versus

WAJID HUSSAIN and another---Respondents

Criminal Appeal No.52 of 2010, decided on 1st June, 2012.

(On appeal from the judgment of the Shariat Court dated 19-10-2010 in Criminal Revision Petition No.2 of 2010).

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

----S. 514---Penal Code (XLV of 1860), Ss.364, 324 & 337/34---Kidnapping or abducting in order to murder, attempt to commit qatl-e-amd, causing Shajjah and common intention---Forfeiture of bond---Accused was admitted to bail on surety bond of Rs.3,00,000 and respondent, who was real brother of accused stood surety for him---Accused having failed to attend the court, he was declared absconder and fugitive from law and surety bond of surety was confiscated---Trial Court, on request of the surety that he being a poor man being unable to pay the whole amount of surety, was entitled to be treated with leniency reduced amount of surety from Rs.3,00,000 to Rs.75,000 and Shariat Court upheld said order of the Trial Court---Validity---No genuine reason had been given by both the courts below for reduction of amount of surety---Supreme Court observed that accused after getting released on bail, usually make good their escape by absconding; and courts of law, while proceeding against the surety, would forfeit whole amount of surety so as the trend be discouraged---Surety was not entitled to leniency by the court in forfeiture and realization of the amount of surety amount on ground of poverty---Accused being real brother of surety, it could be safely assumed that surety connived with his brother and facilitated him in absconsion---Order of Trial Court as well as Shariat Court had been recorded in an arbitrary manner without going through the material on record and nature of crime committed by the accused--- Both courts below had also not taken into consideration the conduct of accused and his surety while recording the order for reduction of the amount of surety bonds---Orders of both the courts below, were set aside by Supreme Court, in circumstances.

Abdul Bari v. Malik Amir Jan PLD 1998 SC 50; Muhammad Ayyub v. Muzaffar Khan and others 2005 YLR 471 and Muhammad Younas v. Robkar-e-Adalat 2001 MLD 673 rel.

(b) Criminal trial---

----Judicial discretion, exercise of---Scope---Judicial discretion was to be exercised keeping in view overall circumstances and the law on the subject.

Ch. Khalid Yousaf, Advocate for Appellants.

Ch. Muhammad Yunas Arvi, Advocate for Respondent No.1.

Muzaffar Ali Zaffar, Additional Advocate-General for the State.

Date of hearing: 29th May, 2012.

2012 P Cr. L J 1973

[Supreme Court (AJ&K)]

Present Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

AZMATULLAH---Appellant

Versus

THE STATE through Advocate-General, Muzaffarabad, Azad Kashmir---Respondent

Criminal Appeal No.9 of 2012, decided on 14th June, 2012.

(On appeal from the order of the High Court dated 12-3-2012 in Criminal Revision No.28 of 2012)

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

----Ss. 497(2), 100 & 103---West Pakistan Arms Ordinance (XX of 1965), S.13-A---Illegal business of arms---Bail, grant of---Further inquiry---Search warrant---Search warrants under S.100, Cr.P.C. could be issued for the recovery of person, who was reported to be detained illegally---Search in the present case was made after four days of the issuance of the warrants---No plausible explanation had been brought on the record as to why there was such delay which had made the case of accused that of further inquiry---While making the alleged recovery, no independent witness was associated, whereas the requirement of S.103, Cr.P.C., was that the presence of two respectables was necessary---Authenticity of the warrants, and the recovery memo had to be seen at the trial stage after recording the evidence, which was the job of the Trial Court---Element of mala fide on the part of prosecution, could not be ruled out---Prima facie story of the prosecution seemed to be doubtful---If an element of doubt was there, that could be extended to accused even at bail stage---Case of accused, clearly fell within the ambit of S.497(2), Cr.P.C. for which sufficient grounds were available for further inquiry into the guilt of accused---Punishment for the offence with which accused was charged was seven years which did not fall under the prohibitory clause of S.497 Cr.P.C.---Investigation against accused had been completed and challan had already been submitted in the court; and the trial was not in sight in near future---Accused was no more required for further investigation--- Keeping accused behind the bars for an indefinite period would amount to punish accused without trial--- Accused was languishing in the jail since 2011---Bail could not be withheld as a punishment--- Accused was released on bail, in circumstances.

Faqir Muhammad v. The State 1998 PCr.LJ 692; Wazir v. The State PLD 1996 Kar. 240 and Sajid v. Wazir Hussain and another 2008 YLR 2777 rel.

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

----S. 497--- Bail, grant of--- Principles--- While deciding bail application, only a bird eye view had to be made and deeper appreciation of evidence was not warranted under law---Court had only to see the allegations levelled in the F.I.R., and the material collected by the prosecution during the investigation---While considering a bail application, the court had to look tentatively the facts and circumstances of the case---Court was not expected to probe deep into merits of the prosecution case.

Mukhtar Hussain and another's case 2005 SCR 29 rel.

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

----S. 497(2)---Bail, grant of---Ground of further inquiry---Scope---No general rule existed for grant of bail on the ground of further inquiry---Scope of further inquiry in each case would depend upon the facts and circumstances of the case.

Raja Sajjad Ahmed Khan, Advocate for Appellant.

Ch. Shaukat Aziz, Additional Advocate-General for the State.

Date of hearing: 14th June, 2012.