PCRLJ 2013 Judgments

2013 P Cr. LJ 214

[Federal Shariat Court]

Before Shahzado Shaikh and Muhammad Jehangir Arshad, JJ

Mst. GHULAM FATIMA---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.16/Q of 2006, decided on 16th November, 2012.

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

----S. 7(3)---Criminal Procedure Code (V of 1898), S.417(2-A)---Haraabah---Appeal against acquittal---Reappraisal of evidence---Accused allegedly entered house of complainant and robbed her jewellery by extending threats to her life---Complainant who appeared at the trial as prosecution witness, made many improvements in her statement---Complainant admitted in her cross-examination that her house was surrounded by houses of her neighbours and on raising alarm her relatives were attracted to the spot, but it did not appeal to prudent mind that in the presence of so many persons, living within the same compound, accused could successfully accomplish the offence of such nature and succeeded in fleeing away---Evidence of prosecution witness was based on hearsay as he was not the witness of occurrence--- Complainant, did not attribute/assign any role to accused---Enmity was also established between the parties---Crime report was registered with a delay of 15 hours, and no explanation was given by the complainant in such regard---Accused remained in police custody on physical remand for fourteen days, but neither the snatched/robbed articles, nor the alleged crime weapon, were recovered from him---Scissors allegedly used in the crime, was not recovered from the possession of accused, but was stated to be lying at the place of occurrence and was blood-stained and same was not sent for forensic test---Complainant and her grandson were the main witnesses in the case, but many improvements and contradictions were present in their statements regarding the occurrence---Statements of the complainant and prosecution witnesses, were contradictory on the material points of entry of accused into the house by breaking or cutting the lock/chain and their leaving the house; on the descriptions of the stolen/robbed items, and on the ownership and possession of gold ornaments/case property in the name of complainant---Record had shown that there was continuing inter se dispute and relationship between the parties was inimical---Impugned order passed by the Trial Court, was upheld, in circumstances---Appeal against acquittal was dismissed by Federal Shariat Court accordingly.

The State through Advocate-General, Sindh v. Raja Abdul Rehman 2005 SCMR 1544; Hashim v. Gul Muhammad and 2 others 2009 PCr.LJ 36; Abdul Razal Gabole and 2 others v. The State 2012 PCr.LJ 999 and Mrs. Naheed Rana v. Naheeda Shamim and 3 others 2006 MLD 1489 ref.

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

----Ss. 265-K & 249-A---Power to acquit accused at any stage of trial---Scope---By enacting Ss.249-A & 265-K, Cr.P.C., the legislature in its wisdom, had not left the question of recording evidence as a condition before taking action under either of the said provisions---Court had ample powers to acquit accused, even if the witnesses were not examined---Provisions of S.265-K, Cr.P.C. were meant to prevent the rigours of a prolonged trial when it was apparent from the record, that there was no probability of accused being convicted of the offence---Burden of proof was on the prosecution, and where evidence available with it, would not be able to establish the charge against accused in the light of required standard of law, then recording of further evidence would waste public time and would serve no public interest---No embargo was placed on the power of the court to acquit accused at any stage---Accused could demand his discharge or acquittal during the course of judicial proceedings---Trial Court had to satisfy itself on the probability or otherwise of the conviction for which it had to give clear reasons in its order.

PLD 1999 SC 1063; PLD 2008 Kar. 310; 2004 PCr.LJ 1071 and 2005 PCr.LJ 2022 rel.

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

----S. 561-A---Saving of inherent power of High Court---Quashing of proceedings---Scope---Proceedings in a criminal trial against an accused could be quashed by High Court under S.561-A, Cr.P.C., where it was established that due to some legal defect in the proceedings accused could not be convicted at the trial, or the case was of no evidence at all and keeping the matter pending would not serve any useful purpose and would amount to abuse of process of court---Quashing judicial proceedings in order to secure the ends of justice would involve a finding that, if permitted to continue, such proceedings would defeat the ends of justice, or in other words, would either operate or perfectuate injustice---To find an abuse, it would be necessary to see in the proceedings, a perversion of the purpose of the law, such as to cause harassment of an innocent party, or to bring about delay, or where the machinery of justice was engaged in an operation from which no result in furtherance of justice could accrue, and similar perverse results---Main consideration to be kept in view would be, whether the continuance of the proceedings before the Trial forum would be a futile exercise, wastage of time and abuse of process of court---Where on the basis of facts admitted and patent on record no offence could be made out against accused, it would amount to abuse of process of law to allow the prosecution to continue with the trial against him.

2005 YLR 3258 and M.S. Khawaja v. The State PLD 1965 SC 287 rel.

Syed Ayaz Zahoor for Appellant.

Nazir Ahmed Khajjak for Respondent No.2.

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

Date of hearing: 16th November, 2012.

2013 P Cr. L J 772

[Federal Shariat Court]

Before Shahzado Shaikh, Dr. Fida Muhammad Khan and Sheikh Ahmad Farooq, JJ

Mst. ZOHRA BIBI---Appellant

Versus

The STATE and 2 others---Respondents

Criminal Appeal No.37-I of 2011, decided on 15th February, 2013.

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

----Ss.10(4) & 16---Criminal Procedure Code (V of 1898), S.417(2-A)---Federal Shariat Court (Procedure) Rules, 1981, R.18(a)---Constitution of Pakistan, Arts.203-DD(2), proviso & 203-J---Appeal against acquittal---Limitation---Plea raised by accused was that appeal against his acquittal filed by complainant was barred by limitation as provided in S.417(2-A), Cr.P.C.---Validity---Federal Shariat Court was empowered under proviso to Art.203-DD(2) of the Constitution to convert finding of acquittal into one of conviction, subject to providing opportunity to acquitted accused of being heard in his own defence---Appeal against acquittal order was to be governed by Art.203-DD of the Constitution---Provision of S.417(2-A), Cr.P.C. was not applicable to appeal against acquittal, as the same was being heard and decided in accordance with jurisdiction vested in Federal Shariat Court as provided under Art.203-DD of the Constitution---Federal Shariat Court (Procedure) Rules, 1981, were framed in exercise of powers conferred by Art. 203-J of the Constitution and would have precedence over procedural law including Criminal Procedure Code, 1898---Appeal by complainant was filed within the period of limitation as provided in Rule 18(a) of Federal Shariat Court (Procedure) Rules, 1981.

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

----Ss. 10(4), 11 & 16---Criminal Procedure Code (V of 1898), S.417(2-A)---Federal Shariat Court (Procedure) Rules, 1981, R.18(a)---Constitution of Pakistan, Art.203-DD(2), proviso---Gang rape---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Accused was acquitted by Trial Court on the ground that charge against him was not proved---Validity---Victim was not recovered from 'Dera' of accused rather she was produced before police by a political person---According to recovery memo, recovery of victim was shown in another case registered under S.11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, whereas the acquittal order was passed in other case---Swabs which were taken from vagina of victim were sent to the office of Chemical Examiner, who found the same to be stained with semen but Chemical Examiner sent one swab to Serologist for semen grouping---According to report of Serologist, one vaginal swab was insufficient for grouping---Victim according to her own statement was subjected to sexual intercourse by three accused during a period spreading over two months and eleven days of her illegal detention in 'Dera' of accused---In absence of semen grouping as well as DNA test, no accused could be held guilty of commission of offence of Zina with victim---Prosecution failed to prove charges against acquitted accused beyond reasonable shadow of doubt---Judgment of acquittal passed by Trial Court, extending benefit of doubt to accused was un-exceptionable---Appeal was dismissed in circumstances.

(c) Criminal trial---

----Opinion of police---Scope---Ipse dixit of police is not binding on Court.

(d) Criminal trial---

----Benefit of doubt must accrue in favour of accused as matter of right and not of grace.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

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

----S. 417---Appeal against acquittal---Appreciation of evidence---Principles---Standards of assessing evidence in appeal against acquittal are quite different from those laid down for appeal against conviction---Appraisal of evidence in appeal against conviction is done strictly, whereas in appeal against acquittal, such rigid method of appraisement is not to be applied---Appellate Court should not interfere in acquittal judgment unless the same is found to be perverse, arbitrary, capricious, result of gross misreading or non-reading of evidence, resulting in miscarriage of justice---Presumption of innocence of accused is multiplied after his acquittal from a court of competent jurisdiction.

Muhammad Aslam v. Sabir Hussain and others 2009 SCMR 985 rel.

Muhammad Yousaf Zia and Saifullah Khan for Appellant.

Ch. Abdul Ghaffar for Respondents.

Ch. Muhammad Sarwar Sidhu, Additional P.-G. Punjab for the State.

Date of hearing: 7th February, 2013.

2013 P Cr. L J 826

[Federal Shariat Court]

Before Muhammad Jehangir Arshad, J

Mst. SHAZIA and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.156/L and 166/L of 2007, decided on 10th January, 2013.

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

----S. 18---Attempt to commit an offence---Appreciation of evidence---Trial Court framed charge against accused persons under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 but after recording their statements under S.342, Cr.P.C. acquitted them under said section and convicted them under S.18 of the Ordinance finding them guilty of preparation for committing offence of zina---Fact of making efforts to commit zina-bil-raza was not established by the evidence, and finding of the Trial Court was based on unlawful assumption---Convictions and sentences of accused persons were set aside by Federal Shariat Court and they were acquitted accordingly.

Mst. Shehnaz alias Asma alias Rani and another v. The State 2010 PCr.LJ 231 ref.

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

----S. 451---House-trespass---Appreciation of evidence---Owner of house in question had not complained against male accused for committing trespass of his property without his consent, so as to attract the definition of "criminal trespass" within the meaning of S.441, P.P.C.---Mere allegation of entering into the house in question by accused without the complaint neither constituted "criminal trespass", nor even attracted the provisions of S.451, P.P.C. and there was not even remote possibility of charging accused persons for commission of offence of "criminal trespass"---Conviction of accused by the Trial Court under S.451, P.P.C., in the absence of a formal charge, being violative of S.232, Cr.P.C. was not only a gross illegality, but also rendered the finding as without jurisdiction---Conviction and sentence of accused persons were set aside and accused were acquitted accordingly.

Riaz v. S.H.O. Police Station Jhang City and 2 others PLD 1998 Lah. 35 ref.

Syed Ijaz Qutab for Appellants (in Criminal Appeal No.156/L of 2007).

Rai Khadam Hussain Kharal for Appellants (in Criminal Appeal No.166/L of 2007).

Nemo for the Complainant.

Humayoun Aslam, D.P.-G. for the State.

Date of hearing: 10th January, 2013.

2013 P Cr. L J 849

[Federal Shariat Court]

Before Shahzado Shaikh, Dr. Fida Muhammad Khan and Sheikh Ahmad Farooq, JJ

MUHAMMAD RAMZAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.55/I and Criminal Reference No.5/I of 2011, decided on 17th October, 2012.

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

----Ss. 3, 5 & 7---Offence of Qazf---Appreciation of evidence---Stand taken by accused was based on a false allegation against the complainant---Accused had levelled an allegation which was well covered within the definition of Qazf as given in Ss.3 & 5 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979---In order to prove his allegation against the complainant, accused had not been able to bring four witnesses to support his allegation---Though the allegation was made by accused in a suit filed by him for declaration and permanent injunction against the complainant, he had reiterated and reaffirmed the same allegation in the present case as well, and he had stuck to the position taken by him in the civil suit---Accused was a liar who had fabricated an allegation of commission of zina against the complainant/illegitimacy of her daughter, which was not at all supported by the four witnesses as required under S.3 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979---Accused, in circumstances, was rightly found guilty of committing the offence of Qazf by the Trial Court and was convicted and sentenced---Impugned judgment was well- reasoned and same being neither perverse nor arbitrary, called for no interference by Federal Shariat Court---Conviction and sentence of accused were maintained, in circumstances.

2011 PCr.LJ 778 and PLD 2011 SC 796 and Verse of the Holy Qur'aan ref.

Qauasain Faisal Mufti and Muhammad Sharif Janjua for Appellant.

Raja M. Sattarullah for the Complainant.

Dr. Muhammad Anwar Gondal, Additional Prosecutor-General for the State.

Date of hearing: 17th October, 2012.

2013 P Cr. L J 1014

[Federal Shariat Court]

Before Agha Rafiq Ahmed Khan, C.J., Muhammad Jehangir Arshad and Sheikh Ahmed Farooq, JJ

ALLAH RAKHA---Petitioner/Appellant

Versus

The STATE and others---Respondents

Criminal Revision No.84-L and Criminal Appeal No.194-L of 2006, decided on 12th March, 2013.

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

----Ss. 417(2-A) & 410---"Appeal against acquittal" and "appeal against conviction"---Distinction---Criteria for interference in an appeal against acquittal was entirely different and distinguishable from that of an appeal against conviction---Double presumption of innocence of accused was attached to the order of acquittal---Appellate Court had to determine only, whether the Trial Court had discarded, ignored or misread any evidence, resulting into miscarriage of justice---Standard of assessing of evidence in an appeal against acquittal, was quite different from those laid down for appeal against conviction---In an appeal against conviction, the appraisal of evidence was done strictly, whereas in an appeal against acquittal, such rigid method of appraisement, was not to be applied.

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

----Ss. 10 & 11---Criminal Procedure Code (V of 1898), S.417(2-A)---Zina and kidnapping---Appeal against acquittal---Reappraisal of evidence---Trial Court after considering material evidence on record, acquitted accused persons---Acquitted accused were found innocent during the investigation conducted by Police Officers---Ipse dixit of the Police, though was not binding on the court, but same could be considered along with other evidence of the prosecution---Material discrepancies existed in the statement of prosecution witnesses qua the acquitted accused persons, benefit of doubt was rightly given to accused persons by the Trial Court---No confidence inspiring incriminating evidence was available on record for recording conviction of acquitted accused---Impugned judgment of the Trial Court was neither perverse or arbitrary, capricious nor against record, or result of any misreading or non-reading of the evidence---No interference was warranted in judgment of the Trial Court---Appeal against acquittal was dismissed, in circumstances.

Muhammad Aslam v. Sabir Hussain and others 2009 SCMR 985 and 2004 SCMR 923 rel.

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

----S. 10(2)---Constitution of Pakistan, Art. 203-DD---Zina liable to Tazir---Appreciation of evidence---Application for enhancement of punishment---Accused who was found guilty of commission of 'zina' was convicted under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and was sentenced to three years' R.I. with fine of Rs.5000---Complainant had filed revision for enhancement of sentence awarded to accused by the Trial Court---Accused had been released from jail after undergoing the entire sentence of his imprisonment prior to admission of revision application for enhancement of sentence, for regular hearing---Federal Shariat Court, ordinarily, did not exercise its revisional powers under Art.203-DD of the Constitution, for enhancement of sentence of accused, who had already undergone his whole sentence of imprisonment---Medical report showed that victim was habitual to intercourse and no marks of violence or injury were noticed on any part of body of the victim---Swabs taken from the vagina of the victim, were received in the office of Chemical Examiner after an inordinate and unexplained delay of 28 days---No grouping of semen was done on the vaginal swab nor DNA test of accused was undertaken---Solitary statement of the victim was not only inconsistent, but also did not inspire any confidence and was not fully supported by medical evidence qua the allegation of commission of zina-bil-jabr with the victim by accused---No eye-witness of the commission of zina-bil-jabr by accused---Trial Court after examining evidence concluded that the victim was a consenting party to said act of 'zina'---Benefit of doubt was rightly given to accused by the Trial Court---Trial Court was fully justified in not convicting accused for commission of an offence falling in S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Revision application was dismissed, in circumstances.

2006 SCMR 1091; 2009 SCMR 502 and Saira Bibi v. Muhammad Asif and others 2009 SCMR 946 rel.

(d) Criminal trial---

----Benefit of doubt---Benefit of doubt must accrue in favour of accused as a matter of right and not of grace---For giving the benefit of doubt to an accused, it was not necessary that there should be many circumstances creating doubt---If a single circumstance would create reasonable doubt in a prudent mind about the guilt of accused, then he would be entitled to such benefit.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Ch. Muhammad Ameen Javed for Petitioner/Appellant.

Date of hearing: 11th March, 2013.

2013 P Cr. L J 1110

[Federal Shariat Court]

Before Allama Dr. Fida Muhammad Khan and Sheikh Ahmad Farooq, JJ

Mst. SOBIA SHAHEEN---Appellant

Versus

ABDUL SHAKOOR and another---Respondents

Criminal Appeal No.5/I of 2011, decided on 12th December, 2012.

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

----Ss. 10(3) & 11--- Criminal Procedure Code (V of 1898), S.417(2-A)---Zina-bil-jabr, kidnapping, abducting or inducing woman to compel for marriage etc.---Appeal against acquittal---Appreciation of evidence---No eye-witness of the occurrence was available---Except the complainant, no other witness was present at the scene of the crime---Statements of two prosecution witnesses being hearsay evidence, could not be relied upon---Statement of another witness regarding the alleged extra judicial confession of accused was insignificant and the same could not be used against accused as same was neither corroborated by any other witness, nor a specific question was put to accused in that regard, while recording his examination under S.342, Cr.P.C.---Solitary statement of the victim of the occurrence was not trustworthy and confidence-inspiring, particularly, when she had mentioned two different times of occurrence i.e., in her cursory statement and statement recorded by the Trial Court---Was not believable that the victim could not have raised any hue and cry when she was being forcibly taken away from the field/land by accused to his house for commission of zina-bil-jabr and it did not appeal to the mind of a prudent person that the complainant/victim and her mother remained silent after alleged occurrence of "zina" till the return of husband of the victim---Complainant explained that during the occurrence, there was fighting between her and accused, but according to the statement of lady doctor there was no sign of abrasion, injuries or bruises on the body of the victim at the time of medical evidence---Contradiction existed with regard to date of medical examination of the victim---Many other discrepancies were found in the statement of complainant, her mother as well as the husband of the complainant---Commission of "zina-bil-jabr" by accused with the complainant, was not conclusively proved from the medical evidence available on record---Victim, who was a married woman, was examined two days after the occurrence---Semen of the male accused having not been sent to the serologist for grouping, evidentiary value of the swabs which were taken from the vagina of the victim and were found to be stained with semen by the Chemical Examiner lost its value---Possibility of false implication of accused in the case by the complainant party, could not be ruled out---Complainant having not established the guilt of accused beyond reasonable shadow of doubt, Trial Court was justified in acquitting accused from the charges---In absence of any illegality, misreading or non-reading of the evidence in the impugned judgment, same being unexceptionable, was upheld, in circumstances---Appeal against acquittal being devoid of any merit, was dismissed by Federal Shariat Court.

Mst. Nasreen v. Fayyaz Khan PLD 1991 SC 412 and Waqar-ul-Islam and another v. The State 1997 PCr.LJ 1107 ref.

(b) Criminal trial---

----Conviction of accused---For recording conviction of an accused, his guilt had to be proved beyond reasonable shadow of doubt---Onerous duty of the court to sift the grain from the chaff, and find out the truth from the falsehood in order to arrive at a just conclusion in any case for safe administration of justice.

(c) Criminal trial---

----Benefit of doubt---Not necessary that there should be many circumstances creating doubts; if a simple circumstance would create reasonable doubt in a prudent mind about the guilt of accused, then he would be entitled to such benefit, not as a matter of grace and concession, but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

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

----Ss. 410 & 417---"Appeal against conviction" and "appeal against acquittal"---Standards for assessing evidence---Standard for assessing evidence in "appeal against acquittal" was quite different from those laid down for "appeal against conviction"---Appraisal of evidence was done strictly, in an appeal against conviction, whereas in appeal against acquittal, such rigid method of appraisement was not to be applied---Appellate Court would not exercise jurisdiction under S.417, Cr.P.C., unless the acquittal judgment of the Trial Court was perverse, or there was complete misreading or non-reading of evidence resulting in miscarriage of justice---When an accused was acquitted from the charge by a court of competent jurisdiction, the double presumption of innocence was acquired by him; and the Appellate Court would not interfere, unless the impugned judgment was arbitrary, capricious, fanciful and against the record.

The State through Advocate-General N.-W.F.P. Peshawar v. Faqir Muhammad Ahmad Khan 2005 PCr.LJ 536 rel.

Mrs. Muhammad Sharif Janjua and Quasain Faisal Mufti for Appellant.

Aftab Ahmed Khan for Respondent No.1.

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

Date of hearing: 12th December, 2012.

2013 P Cr. L J 1214

[Federal Shariat Court]

Before Muhammad Jehangir Arshad and Sheikh Ahmad Farooq, JJ

Mst. NADIA and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 110-L and 113-L of 2010, decided on 16th May, 2013.

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

----Ss. 10 & 11---Criminal Procedure Code (V of 1898), S.367---Zina-bil-jabr liable to Tazir, kidnapping, abducting or inducing woman to compel for marriage---Appreciation of evidence---Trial Court convicted female accused under S.11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 as 'Tazir', but did not pass/award any punishment/sentence and further convicted said accused under S.10 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced her to 'life imprisonment' and imposed a fine Rs.10,000---'Life imprisonment' was nowhere provided in any subsection of S.10 of the Ordinance---Failure of Trial Court to pass sentence under appropriate section of Penal Code and to specify the same in its judgment would render judgment unsustainable---Compliance of S.367, Cr.P.C. was essential---Impugned judgment, not only had been written in a perfunctory and slipshod manner, but also suffered from omissions which were not curable---Thus was not sustainable and a nullity in the eyes of law to the extent of female accused.

Mushtaq Ahmed and another v. The State 2007 SCMR 473; Rana Shahbaz Ahmad and 2 others v. The State 2002 SCMR 303; Shahzad alias Shaddu and others v. The State 2002 SCMR 1009; 2005 SCMR 284 and 2006 SCMR 360 ref.

1996 SCMR 3 and 2002 PCr.LJ 1478 rel.

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

----S. 10---Zina-bil-jabr liable to Tazir---Appreciation of evidence---Benefit of doubt---Not only there was an unexplained delay in the registration of the case by the complainant, but conduct of complainant, who was brother of alleged victim, was also unnatural and not believable---Medical examination of the victim was conducted 6 days after her recovery; and lady Doctor did not find any marks of injury or violence on the body of the victim, despite her allegations that she was subjected to torture, physical beating in addition to zina-bil-jabr by many persons during period of her abduction---No eye-witness of the commission of zina-bil-jabr by any person with the victim was available---Even the swabs, which were taken from the vagina of the victim at the time of her medical examination, were not sent to the Chemical Examiner---Statement of victim did not seem to be truthful or reliable as she neither raised any hue and cry despite being shifted from one place to another, nor tried to run away or contact her brother or the Police---Complainant mentioned the age of alleged victim about 13/14 years, whereas in the medico-legal certificate, her age was written 16 years---According to statement of victim, she was subjected to zina-bil-jabr by several persons on different occasions during the period of her abduction, but neither there was any report of Chemical Examiner, nor grouping of blood/semen or DNA test of any accused---Sole testimony of victim was neither trustworthy or confidence-inspiring nor corroborated by any medical evidence---Whenever there was an uncertainty in any case regarding the commission of an offence, the benefit of doubt was always given to accused, not as a matter of grace or concession, but as a matter of right---Impugned judgment was not only unsustainable being violative of S.367, Cr.P.C. as well as S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, but also the prosecution had failed to prove the guilt of accused persons beyond reasonable shadow of doubt---Impugned judgment was set aside, accused were acquitted of the charges and were released, in circumstances.

Shahzad alias Shaddu and others v. The State 2002 SCMR 1009; Rana Shahbaz Ahmad and 2 others v. The State 2002 SCMR 303; Mushtaq Ahmed and another v. The State 2007 SCMR 473 and 1995 SCMR 1345 rel.

Rana Shakeel Ahmad Khan and Ch. Abdul Malik for Appellants.

Rana Maqbool Hussain for the Complainant.

Zahid Younas, D.D.P.P. for the State.

Date of hearing: 15th May, 2013.

2013 P Cr. L J 1244

[Federal Shariat Court]

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

SHER DIL and others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 10/I and 11/I of 2012, decided on 29th April, 2013.

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

----S. 396---Dacoity with murder---Appreciation of evidence---False implication, principle of---Applicability---Scope---Both the accused were convicted and sentenced to imprisonment for life by Trial Court---Plea raised by accused was that they were falsely implicated by complainant---Validity---Complainant and accused were not previously known to each other and there existed no enmity between them inasmuch as the accused persons did not claim enmity anywhere at the trial nor in their statements under S. 342, Cr.P.C.---No reason was available with complainant to falsely implicate accused persons in the case or substitute for unknown culprit---No legal or factual infirmity in examining of evidence by Trial Court---Prosecution reasonably made out the case against accused persons for offences they had been charged with and as such judgment passed by Trial Court did not call for any interference by Federal Shariat Court and the same was maintained---Appeal was dismissed in circumstances.

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

----S. 164---Retracted confessional statement---Reliance during trial---Principle---Retracted confessional statements if found independent and voluntary and where no reasonable procedural defect was found in recording the same by Magistrate and the same was corroborated by other reasonably confidence-inspiring and consistent evidence on record, then confessional statements could safely be relied upon for awarding conviction.

Abdul Ghani Channa for Appellants.

Syed Feroz Shah State Counsel on behalf of KPK for State.

Date of hearing: 17th April, 2013.

2013 P Cr. L J 1264

[Federal Shariat Court]

Before Shahzado Shaikh, Actg.CJ and Muhammad Jehangir Arshad, J

Mst. SONIA NAZ---Appellant

Versus

ABDULLAH KHALID and 2 others---Respondents

Criminal Appeal No.59/L of 2010, decided on 28th November, 2012.

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

----S. 265-K---Power of court to acquit accused---Scope---Trial Court had ample power to acquit accused to prevent the rigours of prolonged trial when it was apparent from the record that there was no probability of accused being convicted of the charge levelled against him; but the complainant equally deserved justice and fair treatment in that regard---Even the sole testimony of the victim was enough for conviction, if it was corroborative, truthful and confidence inspiring---In the present case, the Trial Court before examining the victim acquitted accused persons on the basis of application submitted under S.265-K, Cr.P.C., which could not be approved with legal sanctity.

PLD 2012 FSC 1 rel.

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

----S. 417(2-A)--- Appeal against acquittal--- Limitation--- Delay, condonation of---Delay of 1058 days was properly explained by the appellant/complainant in her application submitted before the court for condonation of delay---Appellant having satisfactorily explained her absence as well as non-availability before the Trial Court for non-recording her statement, delay in filing the appeal by the appellant/complainant was justified, and same was rightly condoned, in circumstances.

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

----S. 265-K---Power of court to acquit accused---Scope---While proceeding under S.265-K, Cr.P.C., the Trial Court was under obligation to record reason that in all probability the verdict of guilt would not be returned and further that it should not be done by depriving either the prosecution or the defence of its right to produce necessary evidence---Neither the prosecution nor the defence should be deprived of producing its evidence merely because according to the court either the said evidence was not necessary/sufficient or not required by the court for recording the verdict of acquittal.

2005 SCMR 1544 and 1998 PCr.LJ 1563 rel.

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

----Ss. 10, 11, 16 & 18---Penal Code (XLV of 1860), Ss. 344, 354, 355 & 506---Police Order (22 of 2002), Art.155---Criminal Procedure Code (V of 1898), Ss. 417(2-A), 265-K & 428---Wrongful confinement, assault or criminal force to woman with intent to outrage her modesty, assault or criminal force with intent to dishonour person, criminal intimidation, zina or zina-bil-jab liable to Tazir, kidnapping, enticing or detaining a woman, attempt to commit an offence---Appeal against acquittal---Appreciation of evidence---In view of the allegation of the complainant that she was subjected to zina by accused persons; and the availability of her shalwar stained with semen as verified by the office of Chemical Examiner; the recording of statement of the complainant was not only essential, but also expedient in the interest of justice---Trial Court had acted in unnecessary haste as well as with material irregularity by acquitting accused persons, simply on the basis of contents of application submitted by accused persons under S.265-K, Cr.P.C.---Impugned judgment of the Trial Court, passed in Hudood case, whereby accused were acquitted under S.265-K, Cr.P.C., was set aside by Federal Shariat Court and the matter was sent back to the Trial Court in terms of S.428, Cr.P.C., with direction to decide the same afresh after recording statement of the complainant; and other necessary evidence, which the prosecution would deem necessary to produce, after affording ample opportunity of defence to accused persons.

Zulfiqar Ahmed Bhutta for Appellant.

Ahmed Awais for Respondent No.2 and Ch. Riyasat Ali for Respondent No.1.

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

Date of hearing: 28th November, 2012.

2013 P Cr. L J 1288

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan and Sheikh Ahmad Farooq, JJ

SABIR HUSSAIN---Appellant

Versus

The STATE---Respondent

Jail Criminal Appeal No.33/I of 2012, decided on 15th April, 2013.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S.164---Qatl-e-amd---Appreciation of evidence---Confession---Occurrence was unseen and no direct evidence was about murder of the deceased---Complainant did not nominate anyone in the promptly lodged F.I.R. which was against some "unknown accused", who had not only committed the murder of his aunt, but had also looted her ornaments---Such fact alone had shown that the complainant party bore no grudge, ill-will or enmity against accused, who was living in the same vicinity---Confessional statement made by accused was duly recorded by a Judicial Magistrate after observing all codal formalities and according to legal requirements---Recoveries of various incriminating articles were also effected on pointation of accused---Supplementary statement of the complainant was recorded, wherein he nominated accused who had committed the offence---Statement of accused under S.164, Cr.P.C. though was recorded on oath, but that was only an irregularity, which did not vitiate the proceedings---Confessional statement of accused was fully corroborated by the recovery of blood stained 'churri' on the pointation of accused---Prosecution witness had been subjected to cross-examination, but he remained firm and his statement had not been shaken in any respect---Report of Forensic Science Laboratory regarding all the articles, including the "chhuri" and 'gloves', was positive; though the blood on said two items was not found to be sufficient for grouping, but same were recovered on the pointation of accused---Voluntary confessional statement made by accused, which was corroborated by medical evidence, and recovery of incriminating articles, and recovery of stolen gold ornaments of the deceased, which were duly identified, had left no doubt to conclude that offence falling under S.302(b), P.P.C. was committed by accused---No motive existed for the false implication by the complainant---Accused, in circumstances, had rightly been convicted and sentenced by the Trial Court under S.302(b), P.P.C., in circumstances.

Shahzado v. The State PLD 2005 SC 477 and PLD 2008 SC 115 rel.

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

----Ss. 201 & 404---Causing disappearance of evidence of offence, dishonest misappropriation of property possessed by deceased at the time of his death---Appreciation of evidence---Accused did not cause disappearance of any evidence of the commission of offence, or gave false information to screen off the offender from legal punishment---Accused, could not be convicted for offence falling within the mischief of S.404, P.P.C., if the charge against him was of murder and robbery---Conviction recorded by the Trial Court against accused under Ss.201, 404, P.P.C., was illegal, as the necessary ingredients of said two sections, were not at all attracted or established in the circumstances of the case.

NLR 2009 SD 658 rel.

Muhammad Yousaf Zia for Appellant.

Sultan Muhammad Khan Tanooli for the Complainant.

Syed Feroz Shah for the State.

Date of hearing: 3rd April, 2013.

2013 P Cr. L J 1461

[Federal Shariat Court]

Before Shahzado Shaikh, Muhammad Jehangir Arshad and Sheikh Ahmad Farooq, JJ

SALAM alias TOOR JAN---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos.1/Q, 2/Q and Criminal Murder Reference No.1/Q of 2012, decided on 23rd May, 2012.

(a) Jurisdiction---

----Principles---Jurisdiction of the court was its, right and power to interpret and apply the law, i.e., the right or power to administer justice, and to apply laws---Court defined the exercise or extent of such right or power or authority, specified and general---Different types of jurisdictions existed which add enough scope and flexibility to its basic concept in order to meet various situations of adjudication in order to ensure full justice---Principles dealing with question of jurisdiction, elaborated.

28 USCA § 1367; Black's Law Dictionary; Abdul Haque v. Sukhial 2006 CLC 286; Hafiz Muhammad Siddique Anwar v. Faisalabad Development Authority 2007 SCMR 1126; Aamir Khurshid Mirza v. State 2006 CLD 568; Towellers Ltd. through Chief Operating Officer v. Government of Pakistan 2006 PTD 310; Al-Khair Mirpur (Pvt.) Ltd. v. Pakistan through Secretary Ministry of Finance and Economic Affairs 2005 PTD 1596; Muhammad Sadiq v. Government of Pakistan 1988 CLC 123; Capital Assets Leasing Corporation Ltd. v. International Multi Leasing Corporation Ltd. 2003 CLD 1713; Sh. Muhammad Riaz v. Government of the Punjab 2003 PSC 1496(sic.) and Khaavir Saeed Raza v. Wajahat Iqbal 2003 CLC 1306 rel.

Additional Collector-II Sales Tax, Lahore v. Messrs Abdullah Sugar Mills Ltd. 2003 SCMR 1026; Abdul Rehman v. State PLD 2011 Pesh. 192 and Muhammadan Jurisprudence by Sir Abdul Rahim, Barrister-at-law p.180 rel.

(b) Criminal trial--

--'Transaction'-Connotation.

Black's Law Dictionary; Muhammad Dilshad v. State 2009 PCr.LJ 786 and Clifton and Defence Traders Welfare Association v. President, Clifton Cantonment Board, Karachi PLD 2003 Sindh 495 rel.

(c) Criminal trial--.

--'Episode'-Connotation.

(d) Constitution of Pakistan---

----Art. 203-DD---Jurisdiction of Federal Shariat Court---Scope---Article 203-DD of Constitution had devolved much wider responsibility on Federal Shariat Court---Such responsibility grasped correlated or inter-related episodes interlaced in one or the same composite transaction (occurrence or offence comprising series of episodes in the same transaction) by using the phrase "relating to the enforcement of Hudood", in any case, decided by any criminal court under any law---Such was because trial and punishment could be interpreted in such specific composite transactions and provisions dealing with one crime and its consequent punishments were dove-tailed with other punishments related to the same matter or same transaction---Person could be found guilty of multiple crimes in the same episode; in such a situation, it was not without hardship to all concerned and consequent legal complications arising from practicable potentialities of conflicting or inter-affecting findings, which could work to the serious disadvantage of the parties, and would be a source of delay, and all attendant unnecessary effects---Witnesses would suffer equally on account of multiple litigation; it required consideration of the possibly attending ineffectuality to prosecute and punish under parallel laws in separate jurisdiction, or under parallel systems---All such could not be judicially desirable, in such specific situation of available costs and cumbersomeness, within the established legal frame, in the larger interest of justice.

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

----Ss. 302(b) & 392--- Qatl-e-amd, robbery--- Appreciation of evidence---Accused was caught red-handed at the spot---Ocular account produced by the complainant against accused got further strength from testimony of two prosecution witnesses who corroborated the version of the complainant on material details---All said three witnesses faced the test of lengthy cross-examination, but the veracity of their evidence could not be shattered---F.I.R. having been lodged promptly, there was no element of afterthought---Ocular account was further corroborated by Investigating Officer---Post-mortem examination was not conducted in the case, but it was admitted that the occurrence took place and accused was arrested from the spot with pistol---Accused neither had denied the occurrence, nor made any suggestion to the witnesses in that regard---Failure of prosecution to send the crime empty to the Forensic Science Laboratory for its matching along with the recovered pistol, though was an irregularity, but it was not of such nature which could damage the whole prosecution case---Though no direct evidence was available in the case to the effect that deceased was murdered with the fire of accused, but his arrest at the spot, recovery of pistol along with two live cartridges from him and his scuffling with the deceased, had fully proved that the occurrence took place as alleged by the prosecution---Accused could not succeed to bring on record any favourable material or evidence to delink himself from the crime---Prosecution had fully proved its case against accused beyond any shadow of doubt on the basis of ocular account, recoveries and the medical evidence---Accused, in circumstances was rightly convicted.

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

----Ss. 302(b) & 392--- Qatl-e-amd, robbery--- Appreciation of evidence--- Sentence, reduction in--- Mitigating circumstances---Prosecution though had fully proved its case against accused beyond any shadow of doubt, but in view of certain mitigating circumstances, death sentence awarded to accused was seemingly harsh---Three pistol shots were alleged to be fired by both accused persons, but only two empties were recovered---Empties were recovered from a distance of 6/7 feet from the dead body---Inquest report did not mention neck injury, which had obscured chances of linking of the killer bullet, the killer weapon and the killer offender with the killing injury---Death sentence awarded to accused under S.302(b), P.P.C. was converted from death to sentence of life imprisonment---Murder Reference was answered in negative, in circumstances.

Barrister Adnan Ahmed Kasi for the Appellant.

Muhammad Kamran Khan Mulakhail for the Complainant.

Syed Pervaiz Akhtar, Deputy Prosecutor-General for the State.

Date of hearing: 23rd May, 2012.

2013 P Cr. L J 1508

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan, J

Mst. GULZAR BEGUM and 2 others---Petitioners

Versus

Mst. SAJIDA YAQOOB and 5 others---Respondents

Criminal Revision No.10/I of 2009, decided on 17th May, 2013.

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

----S. 6---Protection of Women (Criminal Laws Amendment) Act (VI of 2006), Preamble---Qazf liable to hadd---Benefit of doubt---Scope---Guiding principles under Islamic jurisprudence---Allegations against the accused-respondents was that they filed an application for conducting the exhumation and DNA tests of the deceased for matching with the complainants-petitioners that they were sons of the deceased which was dismissed by the Special Judicial Magistrate---Complainants-petitioners moved private complaint which was dismissed in limine by the Trial Court---Validity---Application moved by the accused-respondents for exhumation and DNA tests was dismissed by Special Judicial Magistrate for non prosecution and same was never challenged nor pursued thereafter by the accused-respondents---No order in respect of proceedings under S.202, Cr.P.C. were conducted and none of accused-respondents made statement in support of said application---Despite fixation of application moved by the accused-respondents for several times, no one of the accused-respondents entered appearance on any date of hearing---No supportive statement to corroborate the contents of the application filed by the accused-respondents was on record---Only a solitary statement of the complainants-petitioners was on record but there was a civil litigation between the parties and the question whether the application was actually moved by the accused-respondents was still shrouded in doubtful mystery---Accused-respondents did not produce any witness in support of the accusation of Zina at any stage and neither recorded their statements any time---Accused-respondents never pursued the matter nor repeated the allegation at any other forum despite the continued litigation of the property and said fact cast doubt whether the application was actually submitted by them---No proof was available on record which might warrant awarding Hadd punishment---Since after promulgation of Women Protection Act, 2006, Qazf liable to Ta'azir no more existed in the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 and the only punishment that could have been awarded was Hadd punishment in absence of the required proof, there was a circumstance to extend benefit of doubt to the accused-respondents---One of the basic guiding principles of Islamic law was that an accused , in case of Hadd punishment, be granted benefit of doubt---Infliction of Hadd punishment was a very severe punishment and that must be established beyond any reasonable doubt either by confession of the accused before a court of competent jurisdiction or other reliable and credible witnesses through testimony that the offence was actually committed---Impugned order was neither arbitrary nor perverse and that did not suffer from any illegality---Revision was dismissed.

See Tirmdhi, K. al-Hudud, 'Bab maja' fi Dar' al-Hudud-Ed ref.

Muhammad Asif Chaudhry for Petitioner.

Sardar Asmatullah Khan, Ch. Muhammad Uffan Iftikhar and Syed Hassan Abbas for Respondents.

Dr. Muhammad Anwar Gondal, Additional Prosecutor-General for the State.

Date of hearing: 8th May, 2013.

2013 P Cr. L J 1683

[Federal Shariat Court]

Before Shahzado Shaikh, Dr. Fida Muhammad Khan and Sheikh Ahmad Farooq, JJ

MUHAMMAD IQBAL---Appellant

Versus

The STATE and 3 others---Respondents

Criminal Appeal No.199/I of 2007, decided on 21st March, 2013.

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

----S. 417(2-A)--- Appeal against acquittal--- In an appeal against acquittal, usually the courts were reluctant to interfere in the impugned judgment, unless it could be shown that the judgment in question was perverse, or based upon non-reading/misreading of evidence available on record to an extent that it had caused miscarriage of justice.

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

----S. 164---Extra-judicial confession---Proof---Three fold proof was required to make the extra judicial confession the basis of conviction---First, that in fact it was made; secondly, that it was voluntarily made; and thirdly, it was truly made.

Muhammad Kamran v. State 2003 SCMR 1070 ref.

(c) Criminal trial---

----Circumstantial evidence--- Conviction--- Basic requirements---In order to claim conviction, in a case depending upon circumstantial evidence, the prosecution must establish four basic requirements that circumstances from which the conclusions were drawn should be fully established that all the facts must be consistent with the hypothesis that circumstances should be of a conclusive nature; that circumstances should, to a moral sanctity, actually exclude every hypothesis, but the one proposed to be proved; that record of the case must show that a chain of events had been interwoven in such a way that its assessment would lead to inescapable conclusion that accused committed the offence and that evidence had to be of high quality, which should inspire confidence in the mind of Judge, because direct evidence was not before him.

Muhammad Noor v. Member I, Board of Revenue, Balochistan and others 1991 SCMR 643; Muhabbat v. State 1990 PCr.LJ 73 and State of UP v. Dr. Ravindra Prakash Miltal AIR 1992 SC 2045 rel.

(d) Criminal trial---

----Circumstantial evidence---Cases depending upon circumstantial evidence---Principles---Fundamental principle of universal application in cases depending upon circumstantial evidence was, that in order to justify the inference of guilt, the incriminating fact must be incompatible with the innocence of accused, or the guilt of any other person, and incapable of explanation upon any other reasonable hypothesis, than that of his guilt.

Wazir Muhammad and another v. The State 2005 SCMR 277 rel.

(e) Criminal trial---

----Benefit of doubt---Entitlement---Scope---Not necessary to look for many circumstances in order to grant benefit of doubt to an accused---Single circumstance creating a reasonable doubt, would entitle accused to claim benefit of doubt---Grant of benefit of doubt was more than a mere principle of law; it was a rule of prudence which could not be ignored because it was deemed to be right of accused.

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

----S. 10(3)---Zina-bil-jabr liable to Tazir---Reappraisal of evidence---Prosecution case depended upon circumstantial evidence as no direct evidence was there---Prosecution had made improvements in his evidence---Positive report of Chemical Examiner, was a corroborative evidence and not a conclusive proof---In absence of direct or strong corroborative medical evidence, issue of rape could not be seriously canvassed for consideration---Counsel had conceded that the links between the handing over of swabs and the final report of the Chemical Examiner were not established---Prosecution, in circumstances had failed to prove the charge against accused under S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

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

----S. 16---Enticing or taking away or detaining a woman with criminal intent--- Appreciation of evidence--- Circumstantial evidence--- Only evidence in the case was that of last seen coming from the mouth of prosecution witness, who was relative of the complainant---Said witness claimed that he had seen the victim in the company of accused in the street at a time when there was dark and no electric bulb was in the street---Principle in the "last seen" was that during the intervening period i.e. the time of last seen and time of death, every circumstance should be inconsistent with the innocence of accused---No motive was alleged or proved---Motive could be an important factor in circumstantial evidence---Prosecution, in circumstances, had failed to prove charge against accused under S.16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

Arun Kumar Banerjee and another v. The State AIR 1962 Calcutta 504 and Itley v. State of Uttar Pradesh AIR 1955 SC 807 (810) rel.

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

----S. 302/34---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-e-amd, common intention--- Appeal against acquittal--- Re-appraisal of evidence---Prosecution had adduced circumstantial evidence and the complainant did not make a supplementary statement before Police about the various chains of the circumstantial evidence---Complaint was lodged about 14 months after the discharge report was signed by S.H.O. regarding two accused---Complainant had all the times to deliberate, consult and prepare a convincing story at the risk of being dubbed as an improvement which had totally changed the complexion of the story---During that period, the complainant, had no where expressed dissatisfaction with the higher authorities about the initial investigation by Police---Case, in circumstances, was a case of improvement, with the result that very nature of initial version stood altered at the time of initiating the complaint before the Trial Court---Prosecution had not made any effort to establish any motive in the case--- No evidence was available to corroborate the contents of alleged extra judicial confession of accused---Element of extra-judicial confession, was of no avail to the prosecution, which otherwise was a weak type of evidence--- In absence of direct evidence, doubts were on more than one material point---Impugned judgment of acquittal, could not be interfered with, in circumstances.

1998 SCMR 2669; 2000 PCr.LJ 320; 2007 SCMR 778 and 1972 SCMR 672 ref.

Atley v. State of Uttar Pradesh AIR 1955 SC 807 rel.

Muhammad Yousaf Zia for Appellant.

Muhammad Shoaib Abbasi for Respondents.

Dr. Muhammad Anwar Gondal, Additional Prosecutor-General for the State.

Date of hearing: 29th January, 2013.

2013 P Cr. L J 1737

[Federal Shariat Court]

Before Rizwan Ali Dodani and Sheikh Ahmad Farooq, JJ

Mst. SHASH BEGUM and others---Appellants

Versus

BASHIR ULLAH and others---Respondents

Criminal Appeals Nos. 31/P, 32/P of 2006, Criminal P.S.L.As. Nos.2/P, 3/P of 2006 and Criminal Revisions Nos.5/P, 6/P of 2006, decided on 23rd January, 2013.

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

----Art. 117---Exhibit of document---Scope---When neither scribe nor typist of the document appeared during trial to confirm verbatim recording of applications in question, which though exhibited, were not duly proved through requisite legal mode.

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

----S. 500---Offence of Qazf (Enforcement of Hadd) Ordinance (VII of 1979), Ss. 3, 5, 7, 11 & 12---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.6---Criminal Procedure Code (V of 1898), S. 164---Defamation and Qazf---Appreciation of evidence---Punishment of Hadd, imposition of---Principle---Trial Court, on private complaint, convicted accused for committing offence of defamation and sentenced them to payment of fine---Validity---When neither any of the accused made any confession of commission of offence before court of competent jurisdiction, nor complainant was able to produce two witnesses, who could fulfil requirement of Tazkiyah-al-Shahood, punishment of Hadd as envisaged under S.6 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, could not be imposed as necessary requirements of S.6 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, were not available---Trial Court had rightly appreciated evidence produced by complainant in order to prove commission of offence of "Qazf" by accused persons, therefore, Federal Shariat Court declined to interfere in the same---Findings of Trial Court about commission of offence by accused persons under S.500, P.P.C. were not in accordance with law and were set aside by Federal Shariat Court---Appeal was allowed accordingly.

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

----S. 499--- Defamation--- Essential ingredient for constituting offence of defamation is mens rea or intention--- Accusation preferred in good faith against any person to any of those, who have lawful authority over that person or imputation made in good faith by person for protection of his right or interest, as specifically mentioned in S.499, P.P.C. do not fall within definition of defamation.

PLD 2001 Kar. 115 rel.

Gul Nazir Azam for for Appellants.

Ahmed Saleem for Respondents/Complainant.

Aziz-ur-Rehman for State Counsel.

Date of hearing: 23rd January, 2013.

2013 P Cr. L J 1046

[Gilgit-Baltistan Chief Court]

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

KARIM BAKHSH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.12 of 2011, decided on 27th November, 2011.

Penal Code (XLV of 1860)---

----Ss. 302/34---Qatl-e-amd, common intention---Appreciation of evidence---Both eye-witnesses, whose presence at the scene of occurrence, was established, were thoroughly cross-examined by defence Counsel, but their statements could not be shattered---Version of two eye-witnesses was supported by the medical evidence; the recovery of weapon of offence i.e. knife, recovered on the pointation of accused in the presence of noble, independent and impartial witnesses--- Accused could not prove his plea of right of private defence---Medical report which was consistent with the recovered weapon of offence and other circumstances, had left no doubt that it was a premeditated and preplanned murder with a motive behind it---F.I.R. having been promptly lodged, the question of false implication of accused, was ruled out---Motive put forward by prosecution had not been rebutted and no mitigating circumstances existed in favour of accused to alter the case of capital punishment and give the benefit of self-defence---Trial Court had rightly appreciated the evidence, and had rightly convicted and sentenced accused---Conviction and sentence awarded to accused, was maintained and appeal of accused, was dismissed, in circumstances.

2002 YLR 1743; PLD 1964 (W.P.) Pesh. 194; PLD 1967 Kar. 233; 1991 MLD 1; PLD 1986 Lah. 159; 2003 MLD 1196; 1998 PCr.LJ 216; 1999 PCr.LJ 439; 1989 PCr.LJ 2179; 2009 MLD 1450; PLD 1988 SC 25; NLR 1987 Criminal 791; 1981 PCr.LJ 129 and 1999 PCr.LJ 1381 ref.

Malik Haq Nawaz for Appellant.

Assistant Advocate-General for the State.

2013 P Cr. L J 1129

[Gilgit-Baltistan Chief Court]

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

ARIF-UD-DIN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.6 of 2011, decided on 8th May, 2012.

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

----Ss. 302, 324, 337-D & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Pakistan Arms Ordinance (XX of 1965), S.13(e)---Qatl-e-amd, attempt to commit qatl-e-amd, Jaifa, common intention, act of terrorism, possessing unlicensed arms---Appreciation of evidence---Statements of the witnesses and injured in the incident, were un-rebuttedly confidence-inspiring---No material had been placed on record for the false involvement of accused in the case---No doubt the weapon of offence (Kalashnikov) had not been directly recovered on the pointation of accused, but evidence on record had shown that same was the property of accused and was owned by accused in the presence of Magistrate---Positive result of the empty shells which had been recovered and proved to have been fired from the recovered weapon of offence, pointed the guilt against accused for being used by him---In view of sectarian motive for the murder, along with the other material placed on record, it could be said that death sentence awarded to accused by the Trial Court had rightly been awarded, which could not be interfered with---Murder reference made by Judge Anti-Terrorism was answered in affirmative to the extent of accused and death sentence awarded to him, was confirmed, in circumstances.

PLD 1963 Kar. 805; PLD 1964 Kar. 356; PLD 1981 SC 112; 1988 SCMR 557; 1990 PCr.LJ 1018; 1993 SCMR 1602; 1995 SCMR 127; PLD 1995 SC 1; 1995 SCMR 599; 1998 PCr.LJ 1486; 2002 PCr.LJ 518; PLD 2005 Quetta 86; 2008 SCMR 302; 2008 SCMR 6; 2009 SCMR 84; 2010 PCr.LJ 211; 2011 PCr.LJ 470; 1972 PCr.LJ 708; 2006 YLR 1161; 2006 YLR 3057 and 2006 YLR 1775 ref.

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

----Ss. 302, 324, 337-D & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-e-amd, attempt to commit qatl-e-amd, Jaifa, common intention, act of terrorism---Appreciation of evidence---Case against co-accused, had defects as no recovery of empty shells had taken place from the point where he had been cited to have opened fire---In presence of material available on record, co-accused was acquitted from all the charges levelled against him and could be released, in circumstances.

Malik Haq Nawaz for Appellants.

Assistant Advocate-General for the State assisted by Shahbaz Ali for the Complainant.

2013 P Cr. L J 1150

[Gilgit-Baltistan Chief Court]

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

EHSANULLAH and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.4 of 2009, decided on 21st April, 2010.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324 & 34---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-e-amd, attempt to commit qatl-e-amd, common intention, act of terrorism, possessing unlicensed weapon---Appreciation of evidence---Anti-Terrorism Act, 1997 which was a special law, would override the provisions of general law---Offence of murder had been provided in the schedule of said special law, which was punishable with death---Fire shots received by the deceased and injured, were from a high velocity fire-arm and not from a low velocity gun, such as a Repeater---Statements of the prosecution witnesses, the recoveries, the motive and other facts of the murder of deceased and the injuries, sustained by other four persons, had proved case against accused to the hilt---Criminal case under S.13 of Pakistan Arms Ordinance, 1965 was also proved against accused, his conviction and sentence was upheld and murder reference made by the Trial Court to his extent was answered in affirmative---Benefit of doubt was extended to co-accused and their sentence was set aside and they would be released.

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

Malik Haq Nawaz for Appellants.

Deputy Advocate-General for the State.

Amjad Hussain for the Complainant.

2013 P Cr. L J 1530

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

ARSHAD MEHMOOD---Petitioner

Versus

BARKAT ALI and 5 others---Respondents

Write Petition No.111 of 2013, decided on 18th May, 2013.

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

----S. 145---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Dispute over shop likely to cause breach of peace---Order of Magistrate attaching and sealing such shop suspended by Revisional Court---Validity---Controversy involved in writ petition was already subject-matter of suit filed by petitioner against respondent and pending in Civil Court---Neither writ petition before High Court nor proceedings before Magistrate would be competent due to pendency of civil suit between parties regarding title of disputed shop---High Court dismissed writ petition in circumstances.

1999 PCr.LJ 107 and 2001 MLD 224 ref.

2000 YLR 1051; 2004 PCr.LJ 1096 and Arif Mehmood and others v. Municipal Corporation Mirpur and others decided on 7-8-2012 rel.

PLD 1988 SC (AJ&K) 27-184; PLD 2007 SC (AJ&K) 20; 2007 SCR 86; 2008 SCR 87 and Shams-ud-Din v. Dr. Karamat decided on 3-6-2011 distinguished.

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

----S. 44---Writ Petition---Pendency of civil suit between parties regarding controversy involved in writ petition---Effect---Writ petition would not be competent in circumstances.

2000 YLR 1051; 2004 PCr.LJ 1096 and Arif Mehmood and others v. Municipal Corporation Mirpur and others decided on 7-8-2012 rel.

Ch. Muhammad Riaz Alam for Petitioner.

Sardar Muhammad Azam Khan for Respondents.

2013 P Cr. L J 1552

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan and Chaudhary Jahandad Khan, JJ

STATE through Advocate-General Azad Jammu and Kashmir---Appellant

Versus

DILDAR HUSSAIN and another---Respondents

Criminal Appeal No.19 of 2008, decided on 18th June, 2013.

Penal Code (XLV of 1860)---

----Ss. 411, 109, 419 & 420---Criminal Procedure Code (V of 1898), S.417(2-A)---Dishonestly receiving stolen property, abetment, cheating by personation, cheating and dishonestly inducing delivery of property--- Appeal against acquittal--- Appreciation of evidence---Complainant, initially nominated six accused persons, and after the investigation, out of six accused persons, two were discharged under S.169, Cr.P.C. and another one was proceeded under S.512, Cr.P.C.---Challan failed to mention that proceedings had also been taken against the remaining accused persons---Complainant, after the acquittal of accused persons, had neither filed any appeal against the acquittal order, nor he had been arrayed as party in the present appeal---Timber in question was property of the complainant, who had also suffered financial loss, but he had not come to the court; which had strengthen the presumption of innocence of accused persons, who after acquittal order enjoyed the double presumption of innocence---Once an acquittal order was recorded in favour of accused person, it could not be lightly interfered with by High Court---Discharge of some accused persons under S.169, Cr.P.C., and nothing incriminating against some of accused persons was mentioned in the challan, was also fatal to prosecution case---Prosecution had not succeeded to make out a case against accused persons, even on merits---Appeal being time barred as well as without any merit, was dismissed, in circumstances.

Shaukat Aziz, A.A.-G. for Appellant.

Raja Shujhat Ali Khan and Raja Tariq Bashir for Respondents.

2013 P Cr. L J 48

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

SABA ALTAF---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.78-B of 2012, decided on 21st February, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302---Qanun-e-Shahadat (10 of 1984), Art.71---Qatl-e-amd---Bail, grant of---Further inquiry---Accused lady having a suckling baby---Effect---Extra-judicial confession---Admissibility as evidence---Scope---Accused lady, who was mother of a suckling child, was alleged to have abetted the murder of the deceased and was implicated with the commission of the offence after a laptop belonging to the deceased was recovered from her place at a time when she was in jail---Accused was also alleged to have made extra-judicial confession regarding the alleged crime before a cousin of the deceased---Alleged motive for the crime was an altercation between deceased and accused and co-accused, which was reported by the chowkidar (watchman) of the house of the deceased---Strangely chowkidar (watchman) had left the house of deceased without providing any information either to complainant or to the police about the incident and only disclosed the fact of altercation between the parties subsequently---Laptop belonging to deceased was allegedly recovered from house of accused at a time when she was in jail---Question remained as to why such recovery could not be effected, when accused was arrested by the police---Prosecution had not established as to who kept the laptop in question at the house of the accused---Statement of cousin of deceased, wherein he mentioned the extra-judicial confession allegedly made by the accused, was recorded belatedly without any explanation and neither such statement was supported by any independent corroboration nor could it be proved as a valid piece of evidence in view of Art.71 of Qanun-e-Shahadat, 1984---Accused had a suckling baby and was languishing in jail with the allegation of abetment, which itself was doubtful---Previous bail application of accused was dismissed for non-prosecution, therefore, present bail petition stood on the same grounds---Evidence collected against accused was not of much weight, therefore, there was scope for further inquiry into her guilt---Accused was enlarged on bail, in circumstances.

Mst. Arifa v. The State 2009 PCr.LJ 109 ref.

PLD 1986 SC 173; 1996 PCr.LJ 370; 1997 MLD 2522 and PLD 2003 SC 525 distinguished.

Mirza Muhammad Nazakat Baig for Petitioner.

Raja Rizwan Abbasi for the Complainant.

Javed Iqbal Butt, Standing Counsel with Owais Muhammad, S.-I for the State.

2013 P Cr. L J 137

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

MUHAMMAD YASEEN and 2 others---Petitioners

Versus

SSP ISLAMABAD and 5 others---Respondents

Writ Petition No.113-Q of 2012, decided on 9th May, 2012.

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

----S. 561-A--- Penal Code (XLV of 1860), Ss.409/420/468/471/ 109/34---Prevention of Corruption Act (II of 1947), S. 5(2)---Constitution of Pakistan, Art.199---Criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, criminal misconduct---Constitutional petition---Petition for quashment of F.I.R., dismissal of---Two F.I.Rs. registered for the same matter---Similarity of offences alleged in said two F.I.Rs.---Final reports/challans for F.I.Rs. not submitted---Effect---First F.I.R. contained the allegation that accused claimed ownership of land belonging to the complainant, on basis of fake stamp paper---Second F.I.R. was lodged against the accused and patwari alleging that patwari had kept a false entry in the record showing possession of accused over the land in question---Accused contended that Special Judge had taken cognizance of second F.I.R. and granted bail to accused, whereas bail in respect of first F.I.R. was still pending, therefore, first F.I.R. should be quashed, and that he could not be vexed twice for the same offence---Validity---Strong material evidence was available on record to connect accused with the commission of the offence alleged---Final reports/challans had not been submitted by the police for the two F.I.Rs., therefore, it was not possible to ascertain that the offences alleged in the F.I.Rs. were the same---Allegations levelled in second F.I.R. were quite different, which mostly defined tampering in the revenue record by patwari, who was a public servant, therefore, the offence was to be tried by the Special Judge coupled with the offence falling under S.5(2) of Prevention of Corruption Act, 1947---Despite the fact that a public servant had been cited in the second F.I.R., ordinary police was continuing with the investigation, when same should have been immediately transferred to Federal Investigation Agency (FIA)---Present case, in circumstances, was neither a case of double jeopardy nor of double incrimination--- Constitutional petition for quashment of F.I.R. was dismissed, in circumstances.

2005 SCMR 152; PLD 1989 Pesh. 148; 1995 MLD 563; 2009 CLC 21; 1988 PCr.LJ 2263; 2011 MLD 64; 1997 PCr.LJ 1167; 2010 SCMR 1835; 2004 SCMR 1859; AIR (39) 1962 Nagpur 12 and 1986 PCr.LJ 811 distinguished.

2000 PCr.LJ 956; PLD 2009 Lah. 8; 2004 MLD 1201; 1997 MLD 1691; PLD 2008 Lah. 103; PLD 2009 Kar. 350; 2008 SCMR 76; 2008 SCMR 1193; 2006 SCMR 276; 2008 YLR 1341; NLR 1998 Criminal 161; 2008 PCr.LJ 469; PLD 2005 SC 279 and 2000 PCr.LJ 22 ref.

(b) Pakistan Criminal Law Amendment Act (XL of 1958)---

---S. 4 & Sched.---Criminal Procedure Code (V of 1898), S. 190---Scheduled offences---Cases involving public servant---Jurisdiction---Scope---Scheduled offences as provided by Pakistan Criminal Law Amendment Act, 1958, were exclusively triable by the Special Judge and direct cognizance was to be initiated without application of S.190, Cr.P.C.---Where same offences were committed by a private person without assistance of a public servant, they could not be considered as Scheduled offences and could be tried by the court having jurisdiction to try the same.

Raja Rizwan Abbasi for Petitioners.

Sardar Abdur Razzaq Khan and Malik Fakhar Ali Awan for Respondents.

Ghulam Mustafa, S.-I. with record.

2013 P Cr. L J 389

[Islamabad]

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

KHALIL AHMED---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.339/B of 2012, decided on 12th September, 2012.

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

----S. 498---Penal Code (XLV of 1860), Ss. 406/34 ---Criminal breach of trust, common intention---Ad interim pre-arrest bail, recalling of---Complainant alleged that accused trapped him in issuing fuel cards to the co-accused for supply of fuel, who (co-accused) allegedly supplied less fuel compared to what he (co-accused) had obtained on the fuel cards, thereby, causing a huge loss to the complainant's company---Complainant had made specific allegation not only against co-accused but also against accused of having fully connived with the co-accused with common intention of misappropriation of fuel in order to cause huge loss to the complainant's company---Accused was nominated in the F.I.R. with a specific role of trapping the complainant to issue fuel cards to the co-accused---Nothing had been brought on record which could establish that there existed any animosity/malice on part of the complainant or the prosecution for false implication of accused---Prosecution witnesses stood by their statements under S.161, Cr.P.C. in which they fully implicated the accused for the alleged offence---Recovery was still to be effected from the accused---Accused was required by the police for further investigation---Investigation into the case could not proceed because of the conduct of the accused, who did not join the investigation and tried to delay it unnecessarily---Accused had been successful in frustrating the investigation for nearly one year by repeatedly obtaining ad interim pre-arrest bail from the court of first instance as well as from the High Court---Ad interim pre-arrest bail granted to accused was recalled in circumstances.

Mudassar Javaid v. The State 2007 MLD 1201; Ghulam Rasool v. The State and another 2011 YLR 1909; Bilal Ahmad v. The State 2007 PCr.LJ 1500; Muhammad Anwar Butt and others v. The State 2007 PCr.LJ 544 and Malik Muhammad Nawaz Khan v. The State and others 1997 P.Cr.LJ 390 ref.

Irfan Saeed v. The State 2007 YLR 1290; Muhmmad Akram v. The State 2007 YLR 1287 and Abdul Ghaffar v. The State 2003 YLR 2757 rel.

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

----S. 498---Pre-arrest bail---Prerequisites---Mala fide on part of the police as well as the complainant were prerequisites for grant of extra-ordinary relief of pre-arrest bail.

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

----S. 498---Penal Code (XLV of 1860), S. 406/34---Criminal breach of trust, common intention---Pre-arrest bail---Recovery still to be effected from accused---Effect---Accused did not deserve relief of pre-arrest bail in such circumstances.

Abdul Ghaffar v. The State 2003 YLR 2757 rel.

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

----S. 498---Pre-arrest bail---Conduct of accused---Scope---Conduct of accused had to be taken into consideration while awarding the discretionary relief of pre-arrest bail.

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

----S. 498---Pre-arrest bail---Conduct of accused---Accused unnecessarily delaying investigation---Effect---Discretionary relief of pre-arrest bail could not be extended to accused in such circumstances.

Irfan Saeed v. The State 2007 YLR 1290 and Muhammad Akram v. The State 2007 YLR 1287 rel.

Faisal Jaffar Khan for Petitioner.

Mir Afzal Malik for the Complainant.

Tariq Mahmood Jahangiri, Deputy Attorney-General for the State.

Khalid Awan A.S.-I. along with Record.

2013 P Cr. L J 445

[Islamabad]

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

MANZOOR AHMAD---Appellant

Versus

The STATE and 2 others---Respondents

Criminal Appeal No.9 and C.M. No.1-A of 2012, decided on 31st May, 2012.

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

----Ss. 406/419//420/468/471---Criminal Procedure Code (V of 1898), S. 417(2-A)---Criminal breach of trust, cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Appeal against acquittal, dismissal of---Benefit of doubt---Complainant (appellant) had paid an amount to the accused for buying a plot of land---Subsequently agreement between the parties was cancelled and accused allegedly returned part of the payment made by the complainant---Complainant alleged that accused did not return the remaining amount despite several demands---Judicial Magistrate acquitted the accused and co-accused after giving them benefit of doubt---Validity---No independent eye-witness of the occurrence---Complainant failed to point out the date and time when he handed over the amount to the accused---Question as to in whose presence complainant handed over the amount was not clear---Complainant should have paid the amount in presence of witnesses---Complainant admitted in his cross-examination that he put his thumb-impression on the back of stamp paper of cancellation of agreement---Question as to whether complainant had entrusted the amount to accused as trust was also not proved---Prosecution had failed to prove its case beyond any shadow of doubt---Trial Court had rightly acquitted the accused and co-accused after giving them benefit of doubt---Appeal against acquittal was dismissed, in circumstances.

(b) Criminal trial---

----Charge, proof of---Duty of prosecution---Prosecution had the basic and prime duty to prove its case against the accused persons by producing cogent, relevant, strong, convincing, unimpeachable, trustworthy and confidence-inspiring evidence to prove the charge.

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

----S. 417(2-A)---Appeal against acquittal---Scope---In appeal against acquittal, interference was warranted only when it appeared that there had been gross misreading or non-reading of evidence which amounted to miscarriage of justice.

Mian M. Arshad Javed for Appellant.

2013 P Cr. L J 591

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

MUHAMMAD AFZAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.72 of 2012, heard on 19th February, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 265-F & 342---Recording of evidence by Trial Court before conviction---Scope---Conviction and sentence recorded without following procedure provided under S.265-F, Cr.P.C.---Charge was framed against accused to which he pleaded not guilty---During trial no prosecution witness attended, and Trial Court at the request of accused, ordered for framing of charge, whereby the accused allegedly pleaded his guilt---Consequently Trial Court convicted and sentenced accused for the offence---Legality---Evidence of prosecution was to be recorded after the plea of accused and when court in its discretion did not convict accused on such plea, the court should proceed to examine the witnesses---In view of S.265-F, Cr.P.C. accused also had an opportunity to submit his written statement as defence evidence---Stage of submitting written statement came at the time of recording statement of accused under S.342, Cr.P.C.---No admission of guilt was available on the record in the present case---Accused neither submitted any application to admit his guilt nor procedure provided by S.265-F, Cr.P.C. was adopted for reaching up to the stage of recording statement of accused under S.342, Cr.P.C.---Trial Court had not adopted the proper legal procedure, as such conviction and sentence recorded by it were set aside and case was remanded to the Trial Court.

Ajmal Khan Khattak for Appellant.

Syed Jalil Hussain, Standing Counsel for the State.

Date of hearing: 19th February, 2013.

2013 P Cr. L J 634

[Islamabad]

Before Noor-ul-Haq N. Qureshi and Riaz Ahmed Khan, JJ

ABDUL RAUF CHAUDHRY and 2 others---Appellants

Versus

The STATE and 2 others---Respondents

Intra-Court Appeal No.14 of 2013, decided on 21st February, 2013.

Criminal Procedure Code (V of 1898)---

----S. 154---Penal Code (XLV of 1860), Ss.408, 410, 419, 468 & 471---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.7(4)---Law Reforms Ordinance (XII of 1972), S.3---Intra Court appeal---Offence committed under the Financial Institutions (Recovery of Finances) Ordinance, 2001---Registration of F.I.R for such offence---Legality---"Registration of F.I.R." and "taking of cognizance"---Distinction---Plea was that only Banking Court could take cognizance of an offence under the said Ordinance on a complaint in writing made by a person authorized by the Bank, therefore, registration of F.I.R. by the complainant was without jurisdiction---Validity---Registration of F.I.R. and taking of cognizance were two distinct and independent concepts under criminal law---No clog or implied prohibition on registration of F.I.R. had been provided specifically---Appeal was dismissed accordingly.

2006 CLD 625 rel.

Syed Javed Akbar for Appellants.

2013 P Cr. L J 678

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

RIZWAN KHAN---Petitioner

Versus

The STATE and 2 others---Respondents

Writ Petition No.14-Q of 2012, decided on 29th June, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 476, 195 & 561-A---Penal Code (XLV of 1860), Ss.420, 468, 471 & 34---Constitution of Pakistan, Arts. 13 & 199---Constitutional petition---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, common intention---Petition for quashing of F.I.R.---Forged document prepared and submitted in court---Separate proceedings against accused for preparation of forged document and for submission of the same in court---Protection against double punishment---Scope---Accused allegedly prepared a forged document showing himself to be owner of a house and rented out the same to extort money from tenants---Accused also filed a suit in the civil court on the basis of forged document in order to usurp the house---Complainant (actual owner of house) lodged an F.I.R. against the accused for preparing a forged document---Complainant also filed application under S.476, Cr.P.C. before civil court against the accused for producing a forged document in court---Contention of accused was that registration of F.I.R. was illegal as once a document is produced in court, unless a final verdict on such document had been passed by court, allegation in shape of F.I.R. cannot be levelled; that on one hand complainant had moved application under S.476, Cr.P.C., and on the other he had lodged an F.I.R., therefore, in view of Art. 13 of the Constitution, accused could not be jeopardized twice for the same offence---Validity---F.I.R. showed that accused had prepared a forged document by forging the signatures of the complainant---Two separate offences had been committed by the accused; first was committed when accused prepared a forged document, and second when such document was submitted in court--- Court had the prerogative to form an opinion whether to follow the procedure laid down under S. 195, Cr.P.C. for submission of a forged document in court--- Complainant had only moved an application before the civil court under S.476, Cr.P.C., for which action had not yet been initiated by the court, therefore, no question of double punishment or double jeopardy arose---Constitutional petition for quashing of F.I.R. was dismissed in circumstances.

State through Advocate-General N.-W.F.P. Peshawar and others v. Gulzar Muhammad and others 1998 SCMR 873; Syed Muhammad Awais Shibli v. The State 1995 MLD 511; Muhammad Shafique and others v. Abdul Hayee and others 1987 SCMR 1371; Habib Ullah v. Malik Muhammad Hashim and another PLD 1993 Quetta 113; Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122; Muhammad Sharif v. Mazharul Haq and 5 others 1983 PCr.LJ 1440; Muhammad Siddique Sabir v. Kh. Muhammad Naeem Lone and the State 1988 PCr.LJ 1229; Kazmali Dossa v. Faisal Malik and 5 others 1980 PCr.LJ 818; Bashir Ahmad v. Zafar-ul-Islam PLD 2004 SC 298; Muhammad Yaqub v. SHO and others 1997 MLD 2097; Iftikhar Ali v. The State and Abdul Hafeez Awan 1999 PCr.LJ 1239; Mufti Abdul Ghani Shah v. The State 1986 MLD 1153; Muhammad Siddiq v. Rashid Ahmad Ch. and another 1998 MLD 686; Ayyaz Mehmood Khan Khakwani v. Muhammad Ashraf Mohandra and others 2005 YLR 3186 and Muhammad Seleman and others v. Abdur Razzaque and others PLD 2005 Lah. 386 ref.

Zahid Asif Chaudhry for Petitioner.

2013 P Cr. L J 718

[Islamabad]

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

ABDUL RAZZAQ---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 127-M of 2011, decided on 1st August, 2011.

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

----S. 145---Dispute concerning land likely to cause breach of peace---Mosque---Proceedings under S.145, Cr.P.C. initiated against a Mosque---Legality---Proceedings under S. 145, Cr.P.C. could not be initiated against a Mosque.

Abdul Majid v. The State and others 1968 PCr.LJ 659 rel.

(b) Mosque Committees Constitution, Function and Dissolution Rules, 1986---

----R. 10(2)---Dispute between Imam and Mosque Committee---Resolution of dispute---Forum---Concerned department for such dispute would be Auqaf Department, and the dispute would be decided by the Deputy Director, Auqaf.

Sher Afzal Khan for Petitioner.

Tariq Mehmood Jehangiri, Deputy Attorney-General for Respondents Nos.1, 6 and 7.

Muhammad Akram Gondal and Sajid Saeed Khan for Respondents Nos.2 to 5.

Naveed Malik for Respondent No.6.

Azmat, A.S.-I. with Record.

2013 P Cr. L J 805

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

Malik MUHAMMAD MASOOD and others---Petitioners

Versus

MUHAMMAD AYUB MALIK and others---Respondents

Writ Petition No.831 of 2012, decided on 5th July, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 154, 161, 162 & 173---Constitution of Pakistan Art. 199---Constitutional petition---Quashing of cross-version F.I.R.---Petitioners/complainants sought quashing of cross-version F.I.R. of accused against petitioners/complainants and sought direction that the police be restrained from initiating investigation against the petitioners / complainants and be directed to file final report under S.173, Cr.P.C.---Contention of the petitioners, inter alia, was that Police had created a cross-version F.I.R. of accused without lodging a separate F.I.R. merely on basis of the statement of the accused when he was being examined by the Police, which was an illegal practice---Validity---Cross-version F.I.R. of accused did not contain the date and place of its recording and accused did not indicate any trauma or injury to his person in his cross-version---Since final report was not submitted under S.173, Cr.P.C., it was not possible for the complainants/ petitioners to move application under Ss.249-A & 265-K, Cr.P.C.---Under provisions of S.154, Cr.P.C. proper course was to be adopted by registering a case on basis of a statement containing all necessary ingredients of F.I.R. as specified in the prescribed form, including, but not limited to, time of report ,time of incident, place of incident etc and without such ingredients, any statement recorded by the Police could not be equated with an F.I.R. even if such information was provided to the Station House Officer in shape of a cross-version---Statement recorded by the police under Ss.161 & S.162, Cr.P.C. could not be used as a piece of evidence nor could be exhibited during trial, and as such had no status except for the purpose of proving contradictions and omissions to the extent envisaged by S.162, Cr.P.C.; and such statements could not be used as cross-versions---Practice of recording cross-version of accused, and on basis of the same, submitting challan against complainant or prosecution witnesses without lodging of a separate F.I.R. was ipso facto illegal---High Court declared the cross-version F.I.R. as having no legal status and directed the police to submit final report under S.173, Cr.P.C. within a period of ten days---Constitutional petition was allowed, accordingly.

2006 SCMR 276 and 2008 SCMR 76 ref.

PLD 1998 Lah. 111 and Mushtaq Hussain and another v. The State 2011 SCMR 45 rel.

Mohsin Akhtar Kiyani for Petitioners.

Arif Mahmood for Respondent No.1.

Raja Muhammad Abid, D.A.-G. for Respondents Nos.2 to 5 on Court's call.

Date of hearing: 25th June, 2012.

2013 P Cr. L J 822

[Islamabad]

Before Muhammad Anwar Khan Kasi and Shaukat Aziz Siddiqui, JJ

QADEER alias TEERAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.374 of 2008, decided on 19th June, 2012.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Sentence, reduction in---"Representative sample"---Scope---Accused was held guilty for possessing 15 Kgs. of contraband "crushed poppy heads"---Trial Court convicted the accused and sentenced him for life imprisonment with fine---Validity---Representative sample of 10 grams was in fact taken out of 15 Kgs. of narcotics---Sample of only ten grams from huge quantity of 15 Kgs. of crushed poppy heads could not be termed as "representative sample"---Control of Narcotic Substances Act, 1997 had to be construed strictly and relevant provision of law dealing with the procedure as well as furnishing proof like report of expert etc. were to be followed strictly in the interest of justice, otherwise it would be impossible to hold that the total commodity recovered from the possession of the accused was narcotic---Accused deserved remission in sentence---Sentence was reduced to one already undergone by the accused---Appeal was dismissed.

Ameer Zeb v. The State PLD 2012 SC 380 and Muhammad Imran v. The State 2011 SCMR 1954 rel.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Apprehension of accused---Procedure---Sentence, reduction in---Natural Justice, principles of---Applicability---Accused was held guilty for possessing 15 Kgs. of contraband "crushed poppy heads"---Trial Court convicted the accused and sentenced him for life imprisonment with fine---Validity---Discrepancies existed in evidence of prosecution witnesses---Proceedings conducted by the investigating agency were to be transparent---Special attention should be paid at the time of apprehension of the accused, his search, recovery proceedings and each and every detail should be brought on record so that it could be ascertained that entire proceedings conducted by the investigating agency were transparent and smacked truth---Awarding sentence of life imprisonment to accused on basis of evidence containing discrepancies would be violation of principles of natural justice---Accused deserved remission in sentence---Sentence of accused was reduced to one already undergone by him---Appeal was dismissed accordingly.

M. Imran Fazal Siddiqui for Appellant.

Rehan-ud-Din Khan Golra Standing Counsel for the State.

Date of hearing: 19th June, 2012.

2013 P Cr. L J 1197

[Islamabad]

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

MUHAMMAD KHALID---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous Nos.467-B, 186-M and 187-M of 2012, decided on 20th September, 2012.

Criminal Procedure Code (V of 1898)---

----Ss.497(2) & 498---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Cheating, forgery and using forged document---Pre-arrest bail, grant of---Un-explained delay in registration of F.I.R.---Case of further inquiry---Complainant and accused were real brothers who were engaged in a joint business but difference arose between them and multiple litigation started---Complainant was trying to manoeuvre to convert civil litigation into criminal one, in pursuit of their enmity towards each other with malice---Forgery of alleged document was yet to be determined during investigation and trial---Apprehension of accused that he had been falsely implicated in case could not be ruled out which would result in humiliation and irreparable loss to his reputation which entitled accused grant of extraordinary discretionary relief of pre-arrest bail---Offences under Ss.420 & 471, P.P.C. were bailable, while offence under S.468, P.P.C. though not bailable but did not fall within the ambit of prohibitory clause of S.497, Cr.P.C.---Inordinate and unexplained delay of more than eleven months in lodging F.I.R. could not be overlooked by High Court while confirming ad interim pre-arrest bail of accused---Pre-arrest bail was allowed in circumstances.

Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488; Muhammad Yaqub v. SHO and others 1997 MLD 2097 and Dr. Muhammad Akbar Pasha v. The State 2010 MLD 1096 ref.

Muhammad Saleem Khan for Petitioner.

Tariq Mahmood Jahangiri, Deputy Attorney-General for the State.

Muhammad Akram Gondal for the Complainant.

Mansha Hussain, S.I.

2013 P Cr. L J 1254

[Islamabad]

Before Riaz Ahmad Khan and Muhammad Azim Khan Afridi, JJ

MUHAMMAD ZAHID KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.32 of 2011, decided on 4th April, 2012.

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

----S. 9(b)(c)---Criminal Procedure Code (V of 1898), S.367(3)---Possessing, trafficking narcotics---Appreciation of evidence---Sentence, reduction in---Charas wrapped in 152 packets weighing four mounds and 10 kgs., was allegedly recovered from vehicle---Out of each packet small quantity for chemical analysis was separated and by mixing same, sample of 500 grams was prepared and sealed in a separate parcel---Trial Court found accused guilty of offence punishable under S.9(c) of Control of Narcotic Substances Act, 1997 and sentenced him to suffer rigorous life imprisonment and to pay fine of Rs.300,000---Accused had restricted his prayer to reduction of quantum of sentence---Out of 152 packets of charas, small quantity separated from each packet was mixed and sample of 500 grams was prepared for chemical examination, whereas requirement of segregating a mandatory small portion from each packet for independent analysis was done away with by mixing the samples with each other---By process of such merger, procedure adopted by the investigators was short of prescribed standard under which stuff segregated from each packet was to be examined and analyzed independently---Recovery of charas from the vehicle, though was established, but quantity of the same exceeding 10 kgs. was not established---Due to unestablished quantity the case of prosecution would not fall within the ambit of proviso added to S.9(c) of Control of Narcotic Substances Act, 1997, under which an accused having narcotics exceeding 10 kgs. was to face punishment not lesser than life imprisonment---Court was not obliged to punish accused to undergo sentence not lesser than life imprisonment---Narcotics recovered from vehicle though was more than one hundred gram, but not more than 10 kgs. in circumstances---Quantum of sentence, was reduced to six years rigorous imprisonment and fine of Rs.100,000.

Ameer Zeb's case in Criminal Appeal No.565 of 2009 rel.

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

----S. 367(3)---Judgment in alternative---When a doubt was entertained, as to under which of the two sections, or under which of the two parts of the same section the offence lay, the court, in such a situation, while awarding punishment, would distinctly express the same and pass judgment in alternative.

Col. (R.) Muhammad Ramzan Ahsan for Appellant.

Muhammad Abid Raja, Deputy Attorney-General for the State.

2013 P Cr. L J 7

[Sindh]

Before Naimatullah Phulpoto, J

GHULAM MUSTAFA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. S-128 of 2010, decided on 31st July, 2012.

Pakistan Arms Ordinance (XX of 1965)---

----S. 13(d)---Possession of illegal weapons--- Appreciation of evidence---Non-association of private witnesses---Failure to obtain Ballistic report---Accused was allegedly found in possession of a firearm for which he had no permit/license---Trial Court convicted and sentenced the accused under S.13(d) of West Pakistan Arms Ordinance, 1965---Contentions of accused were that he along with his father and brother were taken into custody by the Station House Officer (SHO) police, who demanded bribe, and on refusal of such demand, firearm was foisted upon the accused; that an application filed under S.491, Cr.P.C., showed that a raid was conducted during which father and brother of the accused were recovered from the custody of the police; that arrival and departure entries had not been produced in the Trial Court; that there were shops and hotels near the place of incident but no private person was called upon to act as mashir, and that firearm allegedly recovered was not sent to Ballistic Expert for report---Validity---Application filed under S.491, Cr.P.C., for recovery of accused, and his father and brother, was available on record but this aspect of the case had not been discussed by the Trial Court---Arrival and departure entries were not produced before the Trial Court---Investigation Officer failed to examine any person from the shops and hotels near the place of incident---Firearm and bullets were not sent to Ballistic Expert for report--- Prosecution had failed to prove its case beyond any shadow of doubt---Appeal was allowed, conviction and sentence recorded by Trial Court was set aside and accused was acquitted of the charge.

Riaz Hussain Kalhoro v. State 2004 PCr.LJ 290 rel.

Irfan Ali Bhurgri for Appellant.

Abdul Rasheed Soomro for the State.

Date of hearing: 25th July, 2012.

2013 P Cr. L J 25

[Sindh]

Before Muhammad Ali Mazhar, J

HUB ALI and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.697 of 2011, decided on 21st March, 2012.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302/324/147/148/149---Qatl-e-amd, attempt to commit qatl-e-amd, rioting, rioting armed with deadly weapons, unlawful assembly---Bail, refusal of---Case of cross-versions---F.I.R. made it apparent that accused and his co-accused fired upon the deceased, as a result of which he lost his life---Name of co-accused had been placed in column No.2 of the challan, but despite that Magistrate issued non-bailable warrants against all accused persons, which showed that recommendation of investigating officer to let off the co-accused was not accepted---Accused was not entitled to be released on bail, and consequently his bail application was dismissed.

Shoaib Mehmood Butt v. Iftikhar-ul-Haq 1996 SCMR 1845 distinguished.

Arif Din v. Amil Khan 2005 SCMR 1402 and Gul Muhammad alias Gul Jan v. The State 2012 YLR 273 rel.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/324/147/148/149---Qatl-e-amd, attempt to commit qatl-e-amd, rioting, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---Case of cross-versions---No overt act had been attributed to the accused (co-accused) except that he was present at the place of incident with a weapon, but nothing had been stated against him in the F.I.R. which could demonstrate that he caused any injury either to the injured or to the deceased, and in similar circumstances, co-accused had been granted bail by the Trial Court---Role of accused and allegations against him required further inquiry, therefore, he was released on bail.

Shoaib Mehmood Butt v. Iftikhar-ul-Haq 1996 SCMR 1845 distinguished.

Arif Din v. Amil Khan 2005 SCMR 1402 and Gul Muhammad alias Gul Jan v. The State 2012 YLR 273 rel.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/324/147/148/149---Qatl-e-amd, attempt to commit qatl-e-amd, rioting, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---Case of cross-versions---Principles---In case of counter-version arising from the same incident, one given by complainant in the F.I.R. and the other given by the opposite party, it was almost settled that such cases were covered for grant of bail on the ground of further inquiry as contemplated under section 497(2) Cr.P.C, as it was to be decided by the Trial Court as to which version was correct after recording evidence and appraising the same.

Shoaib Mehmood Butt v. Iftikhar-ul-Haq 1996 SCMR 1845 distinguished.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/324/147/148/149---Qatl-e-amd, attempt to commit qatl-e-amd, rioting, rioting armed with deadly weapons, unlawful assembly---Bail---Case of cross-versions---Principles---If the Courts are made bound to consider every cross-case a case of further inquiry and thus to grant bail to all the persons involved, that would lead to various anomalous and complicate situations---Every accused in murder case would come forward with a frivolous cross-version in order to make it a case of further inquiry and to get released on bail, and it was to check these frivolous situations that even in cross-cases the courts were permitted to make tentative assessment.

Arif Din v. Amil Khan 2005 SCMR 1402 quoted.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/324/147/148/149---Qatl-e-amd, attempt to commit qatl-e-amd, rioting, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Principles---Grant or refusal of bail was normally a judicial exercise of discretion, and it was incumbent upon the court to make tentative assessment of the material collected by the prosecution---Deeper appreciation of the evidence was neither permissible nor warranted at bail stage but at the same time the court was not precluded from tentatively perusing the evidence of the eye-witnesses, the recovery, and the medical reports to form a tentative opinion as to whether the accused was prima facie connected with the commission of the offence of murder or not.

Gul Muhammad alias Gul Jan v. The State 2012 YLR 273 quoted.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/324/147/148/149---Qatl-e-amd, attempt to commit qatl-e-amd, rioting, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---Scope---Bail was to be allowed to accused if it appeared to the court that there were sufficient grounds for further inquiry into the guilt of the accused---Question as to what constituted sufficient grounds for further inquiry depended upon the peculiar facts of each case and no hard and fast rule could be laid down for that purpose---Every hypothetical question which could be imagined would not make it a case of further inquiry simply for the reason that it could be subsequently answered by the Trial Court after evaluation of evidence--- Condition of sufficient grounds for further inquiry into the guilt of the accused meant that question should be such which had nexus with the result of the case and could show or tend to show that accused was not guilty of the offence with which he was charged.

Sahib Khan Kanasro for Applicants.

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

2013 P Cr. L J 52

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

GUL MUHAMMAD and another---Applicants

Versus

THE STATE---Respondent

Criminal Transfer Application No. 84 of 2011, decided on 10th January, 2012.

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

----Ss. 526 & 561-A---Anti-Terrorism Act (XXVII OF 1997), Ss.7 & 23---Penal Code (XLV of 1860), Ss.353, 427, 435, 337-F(v), 147, 148 & 149---Assault or criminal force to deter public servant from discharge of his duty, mischief, causing hashimah, rioting, common object---Application for transfer of case from the court of Judge Anti-Terrorism to ordinary court---In order to satisfy and to determine, whether case was triable by the Anti-Terrorism Court or the normal court, it was essential to have a glance over the allegations made in the F.I.R.---Court was also to evaluate whether ingredients of offence had any nexus with the object of case as contemplated under Ss.6, 7, 8 of the Anti-Terrorism Act, 1997---Whether a particular act was an act of terrorism or not, the motivation, object, design or purpose behind the said act was to be seen and that the said act had created a sense of fear and insecurity in the public; or any section of the public or community or in any sect---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---In the present case, it was manifesting from the allegation raised in the F.I.R., that a crowd simply gathered to collect their "Watan Card", which had shown that there was no preplanned concert or intention to attack the Police---Public gathered for collection of 'watan card' were not armed with any weapon, except the allegation that they attacked upon the Police party through lathis---Due to some delay or mismanagement, mob infuriated under some kind of frustration and they broke the queue, but no efforts were shown to have been made by the Police to disperse the mob though they had an option to use tear gas to diffuse the public pressure, if any---Possibility of some untowards incidents, in such type of events, could not be ruled out, where people gathered/assembled in a large scale---In order to avoid any mishap or calamity, it was the responsibility of organizers to ensure and make proper and swift arrangements and system for distribution of Watan Card, so that the rights of flood affected people might have been delivered promptly---Offences charged with in the F.I.R., at the best, were triable by ordinary/normal courts and not by Anti-Terrorism in which court would decide the case on the basis of evidence, whether the applicant was victim or aggressor---Transfer application was allowed with the direction to transfer the case relating to crime from Anti-Terrorism Court to the court of Sessions Judge.

PLD 2009 SC 11; PLD 2006 SC 109; PLD 1995 SC 1 and PLD 2003 Lah. 585 rel.

(b) Interpretation of statutes---

----Interpretation of law should be placed in a manner which could advance the object and suppress the mischief for which the law in question might have been enacted.

Ali Ahmed Khan for Applicants.

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

Date of hearing: 20th December, 2011.

2013 P Cr. L J 70

[Sindh]

Before Muhammad Ali Mazhar, J

MUHAMMAD ABDUL RAUF SIDDIQUI---Applicant

Versus

S.H.O. POLICE STATION, GULBERG, KARACHI and others---Respondents

Criminal Miscellaneous Application No.408 of 2011, decided on 7th December, 2012.

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

----Ss. 179, 22-A & 561-A---Penal Code (XLV of 1860), S. 295-C---Accused triable in district where act is done or where consequence ensues---Scope---Accused, in the present case, allegedly made blasphemous and derogatory remarks against the Holy Prophet Muhammad (P.B.U.H.) during a press conference, which was broadcast by the electronic media---Complainant filed application under S.22-A, Cr.P.C. before Justice of Peace seeking direction for registration of F.I.R.---Station House Officer submitted his comments in which he stated that press conference was held within the jurisdiction of another police station---Justice of Peace disposed of complainant's application on the ground that he did not have jurisdiction to entertain the same, since press conference was held outside his jurisdiction and that complainant should file an application in the appropriate forum---Complainant contended that press conference was held and broadcast by the electronic media throughout the country, hence, police station in question also had jurisdiction for registration of F.I.R.---Validity---S.179, Cr.P.C. provided that when a person was accused of the commission of any offence by reason of anything, which had been done, and of any consequence which had ensued, such offence might be inquired into or tried by a court within the limits of whose jurisdiction any such thing had been done or any such consequence had ensued---Justice of Peace returned complainant's application by ignoring and overlooking S.179, Cr.P.C.---Station House Officer (SHO) did not mention in his comments filed before Justice of Peace whether he considered S.179, Cr.P.C.---Justice of Peace could have ordered Station House Officer (SHO) in question to record statement of accused in view of S.179, Cr.P.C.---Impugned order of Justice of Peace was set aside with a direction to the Station House Officer (SHO) to record fresh statement of complainant and if any cognizable offence was made out under S.295-C, P.P.C., then to incorporate the same in accordance with S.154, Cr.P.C.---Application was disposed of accordingly.

Mst. Bhaitan v. The State and 3 others PLD 2005 Kar. 621; Aurangzeb Khan v. District Police Officer and 4 others 2009 YLR 83; Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539; Mumtaz Ali v. S.H.O. Naushahro Feroz and another 2011 PCr.LJ 268; Syed Ijaz Hussain alias Tahir Pir v. The State 1994 MLD 15; Riaz Ahmad and 3 others v. The State PLD 1994 Lah. 485; Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan PLD 1971 SC 677 and Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan 1994 SCMR 2142 ref.

Ch. Muhammad Aslam v. C.P.O. Rawalpindi 2011 PCr.LJ 1870; Nusrat Bibi v. S.H.O. and another 2011 MLD 223; Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 SC 691 and Muhammad Mahboob alias Booba v. The State PLD 2002 Lah. 587 distinguished.

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

----S. 500---Defamation---Cognizance of offence---Scope---Cognizance in case of defamation could be taken where the defamatory statement was made at one place and was published in a newspaper in another place or the newspaper was published at one place and circulated in another place, a complaint might be instituted under S.500, P.P.C. in the courts having jurisdiction over both such places.

Subramaniam v. Prabhakar 1984 Cr.LJ 1329; Lankesh v. Shivappa 1994 Cr.LJ 3510; Bangarappa v. Ganesh 1984 Cr.LJ 1618 and Cr.P.C. Durga Das Basu, 4th Edition 2010 rel.

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

----Ss. 22-A, 154, 177, 179 & 561-A---Penal Code (XLV of 1860), S.295-C---Use of derogatory remarks etc. in respect of the Holy Prophet (P.B.U.H.)---Justice of Peace directing Station House Officer (SHO) to proceed in terms of S.154, Cr.P.C. only after inquiring whether he had jurisdiction to deal with the matter---Legality---Justice of Peace directed Station House Officer to inquire into jurisdiction, due to which the Station House Officer (SHO) entered into a full-fledged inquiry and/or investigation at a premature stage, which was in contravention of S.154, Cr.P.C.---No occasion or reason existed in the present case, to allow the Station House Officer (SHO) to first determine the point of jurisdiction which should have been left open for him to apply his own independent mind in view of Ss.177 and 179, Cr.P.C.---Impugned order of Justice of Peace was set aside with a direction to the Station House Officer (SHO) to record fresh statement of complainant and if any cognizable offence was made out under S.295-C, P.P.C., then to incorporate the same in accordance with S.154, Cr.P.C.---Application was disposed of accordingly.

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

----S. 154---Registration of F.I.R.---Scope---Under S.154, Cr.P.C. it was the sole duty and responsibility of the Station House Officer (SHO) to record statement of complainant and register an F.I.R.---Information supplied by complainant should be about the alleged commission of cognizable offence irrespective of the fact whether such information ultimately proved to be correct or not and also irrespective of the fact whether ultimately such offence was found to have been actually committed or not.

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

----S. 22-A---Justice of Peace, functions of---Scope---Function of Justice of Peace was to check whether the statement of the complainant intimating or informing of the commission of any cognizable offence was recorded or not---Functions of Justice of Peace did not include touching the merits of the case or giving certain directions, which were beyond his scope of powers and jurisdiction.

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

----S. 179---Accused triable in district where act is done or where consequence ensues---Scope---Section 179, Cr.P.C. applied to those offences which by their very definition consisted of an act and its consequences---Consequences must form part of the offence, and the act and consequences together must constitute the offence.

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

----Ss. 200 & 154---Direct/private complaint, remedy of---Scope---Remedy of filing direct complaint could not be equated with S.154, Cr.P.C. since mechanism and machinery provided for investigation in Cr.P.C. was not available in the case of a direct complaint---If in each and every case it was presumed that instead of lodging an F.I.R., the party might file a direct complaint, then the purpose of recording F.I.R. as envisaged under S.154, Cr.P.C. would become redundant and futile and it would be very easy for the police to refuse registration of F.I.R. with the advice to complainant to file direct complaint.

Dr. Inayatullah Khilji and 9 others v. Ist Additional District and Sessions Judge (East) Karachi and 2 others 2007 PCr.LJ 909 ref.

M. Ilyas Khan, Aamir Mansoob Qureshi and Kh. Naveed Ahmed for Applicant.

Anwar Mansoor Khan and Muhammad Ashraf Samoo for the Proposed Accused.

Imtiaz Ali Jalbani, A.P.-G.

Inspector Chand K. Niazi and SIP Riaz, PS Kalakot, Karachi.

Dates of hearing: 25th September, 10th and 16th October, 2012

2013 P Cr. L J 100

[Sindh]

Before Nadeem Akhtar, J

Mst. SULIMA---Petitioner

Versus

GOVERNMENT OF SINDH, through Secretary Home Department and 14 others---Respondents

Constitution Petition No.2575 of 2012, decided on 18th September, 2012.

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

----Ss. 22-A & 154---Constitution of Pakistan, Art. 199---Constitutional petition---Filing of Constitutional petition to seek direction for registration of F.I.R. without availing the remedy under S.22-A, Cr.P.C.---Maintainability---Complainant (petitioner) alleged that police officials and accused persons raided her house and took away her cattle, wheat and household articles, whereafter she made a complaint before the Station House Officer and senior police officials but her complaint was neither entertained nor registered---Complainant through present constitutional petition sought a direction to the police to recover her cattle and other valuables and a direction to record her statement and register an F.I.R.---Validity---Complainant did not file any application/complaint before the Justice of Peace against non-recording of her statement and non-registration of her complaint/ F.I.R.---Complainant failed in availing the alternate remedy, which was an efficacious, adequate and the only remedy available to her under the law---Directions sought by complainant were not maintainable under the Constitutional jurisdiction of the High Court---Constitutional petition was dismissed by the High Court with the observation that complainant might approach the Justice of Peace regarding her complaint, and might initiate proceedings in accordance with law for recovery of her stolen cattle and articles.

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

----Ss. 22-A & 154---Powers of Justice of Peace---Scope---Where a complaint was not entertained by the concerned Station House Officer (SHO) or statement of complainant was not recorded by him or an F.I.R. was not registered, then the complainant had to approach the Justice of Peace under S.22-A, Cr.P.C.

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

----S. 22-A---Justice of Peace---Power to issue directions for registration of F.I.R.---Scope---Where Justice of Peace formed his independent opinion from the facts narrated to him by the complainant that a cognizable offence had been made out; the Justice of Peace was bound to issue directions to the concerned Station House Officer (SHO) for recording of F.I.R.

Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539; Mst. Bhaitan v. The State and 3 others PLD 2005 Kar. 621 and Salah-ud-Din Khan, S.H.O. and 2 others v. Noor Jehan and another PLD 2008 Pesh. 53 rel.

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

----S. 22-A---Constitution of Pakistan, Art. 199---Constitutional petition---Directions for registration of F.I.R.---"Powers of Justice of Peace" and the ones "under Constitutional jurisdiction of High Court"---Distinction---Powers of an Ex-Officio Justice of Peace under S.22-A(6), Cr.P.C. could not be equated with the constitutional jurisdiction of the High Court.

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

Shabbir Ali Bozdar for Petitioner.

Abdul Ghaffar Memon for the State.

2013 P Cr. L J 117

[Sindh]

Before Nadeem Akhtar, J

GHULAM FAREED---Applicant

Versus

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

Criminal Miscellaneous Application No.423 of 2012, decided 25th September, 2012.

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

----Ss. 22-A & 154---Information disclosed to Justice of Peace constituting a cognizable offence---Duty of Justice of Peace in such circumstances to give directions for registration for F.I.R.---Scope---Cognizable offence committed during pendency of a civil dispute---Complainant alleged that he had purchased a property from the accused and had paid the entire sale consideration but despite such fact accused refused to hand over the property---Accused while armed with weapons visited Otaq of complainant and threatened to kill him if he continued with his demand of the said property---Station House Officer (SHO) refused to register F.I.R. for the incident because of which complainant approached the Justice of Peace, who on basis of police report refused to give directions for registration of F.I.R. and observed that dispute was a civil dispute which had arisen out of an agreement to sell, therefore, same should be taken to the civil court---Validity---Application of complainant before Justice of Peace was dismissed on basis of police report and not on the basis of the incident narrated and specific allegations made by the complainant---Contents of the application made by the complainant were not considered by the Justice of Peace in order to determine whether any cognizable offence had been made out or not---Justice of Peace was duty bound to determine the question of existence or non-existence of cognizable offence without going into the veracity of the information in question---Complainant did not conceal the existence of a civil dispute in his application before the Justice of Peace and only raised the specific allegation that accused forcibly entered into his Otaq with weapons and threatened to murder him---Despite such serious allegations, Justice of Peace did not deal with the basic questions whether information disclosed by the complainant did or did not constitute a cognizable offence, and whether the Station House Officer (SHO) refused to register the complaint---Impugned order of Justice of Peace was not a speaking order as no valid reason had been mentioned therein to show that prayer made by complainant had been declined after proper and full application of mind---Impugned order was a nullity and accordingly set aside by the High Court with the direction that Station House Officer should record statement of complainant if a cognizable offence was made out on basis of such statement---Application was allowed accordingly.

Mst. Bhaitan v. The State and 3 others PLD 2005 Kar. 621; Salah-ud-Din Khan, S.H.O. and 2 others v. Noor Jehan and another PLD 2008 Pesh. 53 and Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539 rel.

Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 SC 691 ref.

Muhammad Hussain v. Additional Sessions Judge/Justice of Peace, D.G. Khan and 4 others 2012 YLR 460 distinguished.

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

----Ss. 154 & 155---Registration of F.I.R.---Scope---Station House Officer (SHO) of Police holding inquiry to assess correctness of information provided by complainant---Legality---No provision in any law, including Ss.154 and 155, Cr.P.C., authorized an Officer Incharge of the Police Station to hold any inquiry to assess the correctness or falsity of the information received by him before complying with the mandatory requirement of reducing the information into writing irrespective of the fact whether such information was true or not.

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

----S. 22-A---Justice of Peace calling for police report/comments for deciding an application under S.22-A, Cr.P.C.---Validity---When it was alleged in an application under S.22-A, Cr.P.C. that a cognizable offence had been committed and same was not registered by the Station House Officer despite applicant's complaint, then it was not necessary for the Justice of Peace to call for comments or report from police in order to decide such an application.

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

----S. 22-A---Cognizable offence committed during pendency of a civil/private dispute---Justice of Peace dismissing application under S.22-A, Cr.P.C. due to existence of private or civil dispute---Validity---Dismissal of application under S.22-A, Cr.P.C. by Justice of Peace in such circumstances would be a misconception because, firstly, had the same been the intention of the law makers, then a barring clause would have been inserted in S.22-A, Cr.P.C. barring all applications before Justice of Peace wherein parties were involved in a private or civil dispute, and secondly, because parties might have a private or civil dispute and at the same time during pendency of such dispute, one or both parties might commit a (criminal) offence against the other---Parties, in such a situation, should have both remedies available to them, one before the competent civil court and the other before the proper forum prescribed under Cr.P.C.

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

----S. 22-A---Information disclosed to Justice of Peace constituting a cognizable offence---Duty of Justice of Peace in such circumstances to give directions for registration of F.I.R.---Scope---When an oral or written complaint was made before the Justice of Peace in respect of an offence, he was bound under S.22-A(6), Cr.P.C. to examine whether the information disclosed by the applicant did or did not constitute a cognizable offence, and if it did according to his own independent opinion as per facts narrated by the applicant, then he was bound to direct the Station House Officer (SHO) to register an F.I.R., without going into veracity of the information and irrespective of any private or civil dispute between the parties.

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

----Ss. 22-A & 154---Station House Officer receiving directions from Justice of Peace to register F.I.R.---Duty of Station House Officer to register an F.I.R. in such circumstances---Scope---Upon a direction issued by Justice of Peace, concerned Station House Officer was bound to register an F.I.R. under S.154, Cr.P.C., whether the information received by him was false or correct and whether any private or civil dispute between the parties was pending or not---Station House Officer had no power to refuse to register the F.I.R., if the offence appeared to be cognizable from the information received by him.

Zulfiqar Ali Naich for Applicant.

Zulfiqar Ali Jatoi, D.P.-G. for Respondents.

2013 P Cr. L J 144

[Sindh]

Before Nadeem Akhtar, J

MUHAMMAD HASSAN---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION GAMBAT, DISTRICT KHAIRPUR and 3 others---Respondents

Constitution Petition No.S-3029 of 2011, decided on 18th September, 2012.

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

----S. 154---Sindh Irrigation Act (VII of 1879), Ss. 61 & 62---Constitution of Pakistan, Art. 199---Constitutional petition---Petitioner sought through constitution petition direction for registration of F.I.R. without first approaching the Station House Officer and further direction to the accused persons to pay compensation/damages for mental torture and injury to his reputation---Maintainability---Complainant (petitioner) alleged that accused persons (respondents) had lodged a false case against him under Ss.61 and 62 of the Sindh Irrigation Act, 1879, which case was disposed of in 'C' class by the Magistrate; that in fact the offence was committed by the accused persons in collusion with each other, therefore direction should be issued for registration of F.I.R. against them and they should also be directed to pay the complainant/petitioner for injury to his reputation and for causing him mental torture---Validity---Petitioner admitted that he never approached the Station House Officer for recording of his statement or for registering/lodging of complaint---Without approaching the concerned Station House Officer and thereafter without approaching the Justice of Peace in case of refusal by the said Station House Officer, the petitioner could not file the present constitutional petition---Constitutional petition was not maintainable as directions sought by petitioner, including that of damages, could not be granted under constitutional jurisdiction of the High Court---Constitutional petition was dismissed accordingly.

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

----S. 154---Cognizable offence---Registration of F.I.R.---Station House Officer (SHO), duty of---In case of cognizable offence the complainant had to approach the Officer in charge of such police station under whose jurisdiction offence was said to have been committed---Officer in charge of the concerned police station or anyone else had no authority to refuse to record complainant's statement and/or to refuse to lodge an F.I.R.

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

----S. 22-A--- Justice of Peace--- Power to issue directions for registration of F.I.R.---Scope---Where Justice of Peace formed his independent opinion from the facts narrated to him by the complainant that a cognizable offence had been made out; the Justice of Peace was bound to issue directions to the concerned Station House Officer (SHO) for recording of F.I.R.

??????????? Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539; Mst. Bhaitan v. The State and 3 others PLD 2005 Kar. 621 and Salah-ud-Din Khan, S.H.O. and 2 others v. Noor Jehan and another PLD 2008 Pesh. 53 rel.

??????????? Shaikh Amanullah for Petitioners.

??????????? Nisar Ahmed Bhanbhro for Respondents Nos.2 and 3.

??????????? Abdul Ghaffar Memon, State Counsel.

2013 P Cr. L J 168

[Sindh]

Before Nadeem Akhtar, J

MUHAMMAD FAZUL---Petitioner

Versus

The PROVINCE OF SINDH through Home Secretary, Karachi and another---Respondents

Constitutional Petition No.S-2566 of 2012, decided on 9th October, 2012.

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

----Ss. 22-A, 22-B & 154---Justice of Peace, power of---F.I.R., registration of---Procedure---For cognizable offence, complainant has to approach officer-in-charge of such police station under whose jurisdiction offence is said to have been committed---Officer-in-charge of concerned police station has no authority to refuse to record complainant's statement and/or to refuse to register F.I.R. on his complaint---When concerned officer-in-charge fails or refuses to record complainant's statement and/or to register his F.I.R., then complainant has to approach Justice of Peach under section 22-A, Cr.P.C.---On such complaint/application, if Justice of Peace forms his independent opinion from facts narrated to him by complainant that cognizable offence has been made out, the Justice of Peace is bound to issue a direction to concerned Station House Officer for recording of F.I.R.

Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539; Mst. Bhaitan v. The State and 3 others PLD 2005 Kar. 621 and Salah-ud-Din Khan, S.H.O. and 2 others v. Noor Jehan and another PLD 2008 Pesh. 53 rel.

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

----Ss. 22-A, 22-B & 154---Constitution of Pakistan, Art. 199---Constitutional petition---Alternate remedy---F.I.R., registration of---Procedure---Grievance of petitioner was that he approached duty officer of concerned police station for lodging of F.I.R. but no action was taken on his complaint---Validity---Petitioner did not file any application/complaint before Justice of Peace against non-registration of his complaint/F.I.R.---Petitioner failed to avail alternate remedy, which was not only an efficacious and adequate remedy but was the only remedy available to him under law---Plea of recovery of stolen cattle and articles was also not maintainable under Constitutional jurisdiction of High Court and petitioner could approach Justice of Peace regarding his complaint---Petitioner could initiate proceedings in accordance with law for recovery of his stolen cattle and articles---Petition was dismissed in circumstances.

Mst. Anwar Begum v. Station House Officer, Police Station Kalri West, Karachi and 12 others PLD 2005 SC 297; Rukhsana Jabeen v. Additional District Judge and others 2011 CLC 1498; Muhammad Asif v. Umar Farooq Khan, Inspector Police and 5 others 2010 MLD 128; Riaz Mehmood Sheikh v. Shamsher Alam Khan and another 2009 CLC 862 and Ghulam Mustafa v. S.H.O. City Police Station, Athmuqam and 9 others 2008 PCr.LJ 986 ref.

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

Mushtaque Ahmed Shahani for Petitioner.

Ayaz Hussain M. Solangi for Proposed Accused Nos.1 to 3.

Liaquat Ali Shar, Additional Advocate-General.

Date of hearing: 28th September, 2012.

2013 P Cr. L J 192

[Sindh]

Before Salman Hamid, J

ABDUL WAHID---Appellant

Versus

UMAR and 2 others---Respondents

Criminal Acquittal Appeal No. 179 of 2011, decided on 25th November, 2011.

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

----S. 302--- Criminal Procedure Code (V of 1898), S. 417---Qatl-e-amd---Appeal against acquittal---Appreciation of evidence---Failure to prove motive---Inconsistencies in statements of witnesses---Unseen incident---Failure to produce ballistic expert report---Prosecution witnesses had stated that accused had no motive to kill the deceased and they had not actually seen accused firing at the deceased---Evidence of some of the prosecution witnesses was full of inconsistencies and no corroborative evidence of independent witnesses, other than that of relatives of the deceased, was brought forward to prove that accused actually fired at the deceased---Prosecution witnesses who claimed to have seen the accused firing at the deceased had not come forward and deposed---Prosecution witnesses, who were relatives of the deceased, deposed that they heard the fire shots while sitting elsewhere and at the same time they had also stated that they saw the accused shooting at the deceased---Mere number of prosecution witnesses was not the deciding factor, but it was the quality and worth of evidence given by the witnesses which mattered---Weapon and bullet recovered after twenty (20) days of the incident had admittedly not been sealed on the spot as required under the law, and same was produced in court in broken condition---Tampering or change of weapon, in circumstances, could not be ruled out---Weapon had not been sent to the Forensic Science Laboratory and ballistic expert report was not produced, therefore, the presumption was that such report was never obtained---Despite recovery of weapon, bullet and empties, the most crucial evidence, i.e. report of ballistic expert had not been obtained, benefit of which had to go to the accused---Impugned judgment of acquittal required no interference and, accordingly, appeal against was dismissed.

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

----S. 302---Qatl-e-amd---Ballistic expert report---Significance and corroboration---Where, in a murder case, it is alleged that the fatality occurred because of firing and/or fire shot and the weapon and the bullet or empties were recovered, it becomes essential, that ballistic expert report is obtained inasmuch as there can be no better evidence than the ballistic expert report which would conclusively and scientifically show if the bullet and/or empties were in fact fired from the said weapon---Ballistic expert report could further be corroborated through evidence of other witnesses to reach a just conclusion of the case to ensure that no one suffered for lack of evidence.

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

----S. 417---Penal Code (XLV of 1860), S. 302---Qatl-e-amd---Appeal against acquittal---Scope---Culpability of the accused depended upon the nature of the evidence brought against him and only if the prosecution succeeded on the basis of such evidence, the conviction and sentence would sustain---Where evidence was not satisfactory and full of doubts, same was deemed to be contradictory and destructive and under such circumstances the benefit should always go to the accused person entailing his acquittal---Appeal against acquittal was dismissed in circumstances.

Munir Hamid Shami for Appellant.

Nemo for Respondents.

Date of hearing: 25th November, 2011.

2013 P Cr. L J 208

[Sindh]

Before Sajjad Ali Shah and Riazat Ali Sahar, JJ

SHER BANO---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Narcotics, Islamabad and 4 others---Respondents

Constitutional Petition No.D-945 of 2012, decided on 26th September, 2012.

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

----Ss. 21 & 37---Constitution of Pakistan, Art. 199---Constitutional petition--- Freezing order, notice of---Scope---Freezing of bank account---Procedure---Grievance of petitioner was that conviction was awarded to her son by Trial Court but authorities had frozen her bank account---Validity---Freezing order was always an interim arrangement till forfeiture or release of assets was directed by Court---Difference between freezing of assets by court or Director-General of Anti-Narcotic Force (ANF) or authorized person, as appeared from S.37(2) of Control of Narcotic Substances Act, 1997, was that Director-General or authorized officer had to place freezing notice issued by them before court within seven days and it was the Court which had to decide continuation or otherwise of such freezing notice---Where court did not provide continuation to freezing notice issued by Director-General of Anti-Narcotic Force or authorized officer, the same lost its sanctity after expiry of 7 days and assets would automatically stand released---Where continuation to freezing notice was granted by court or the court directed freezing of assets till trial finalized, then, unless court forfeited assets by passing separate reasoned order or through judgment, the assets automatically stood released upon pronouncement of judgment for the reason that forfeiture of assets, except where accused was convicted for an offence under S.12 of Control of Narcotic Substances Act, 1997, was not a sine qua non to conviction but subject to the conditions prescribed under S.39 of the Control of Narcotic Substances Act, 1997---Before directing forfeiture, Court must provide reasonable opportunity of hearing to person affected through such forfeiture in order to satisfy itself that assets sought to be forfeited had been derived, generated or obtained through such act or omission--- Conviction of accused did not result in sentence of imprisonment exceeding three years, therefore, question of forfeiting of assets did not arise---High Court in exercise of Constitutional jurisdiction, declared notice of freezing of petitioner's account of no legal effect and petitioner was free to withdraw her funds from her bank account---Petition was allowed in circumstances.

Shamshad Ali Qureshi for Petitioner.

Jawaid Farooqui, D.A.-G. for Respondent No.1.

Sub-Inspector Zahid Manzoor, Investigation Officer, Anti-Narcotic Force Police Station Clifton for Respondent No.2.

Muhammad Salman, Inspector (Assets Investigation) RD, ANF, Karachi through Hussain Bux, SPP ANF for Respondent No.3.

Date of hearing: 26th September, 2012.

2013 P Cr. L J 244

[Sindh]

Before Salahuddin Panhwar, J

MIRAN alias MIR MUHAMMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos. 144 and 145 of 2011, decided on 13th August, 2012.

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

----Ss. 353 & 512---Qanun-e-Shahadat (10 of 1984), Art. 46---Recording evidence in absence of accused---Using earlier recorded evidence in absentia against absconding accused on his arrest---Scope---Under provisions of S.353, Cr.P.C., it was mandatory that evidence should be recorded in the presence of accused, except when personal attendance of accused was dispensed with and accused was represented through pleader---Logic behind that could be nothing, but to ensure providing a full and fair opportunity to accused, while eliminating all chances of subsequent plea of accused being prejudiced---Legislature had provided an exception to mandatory provision by enacting the provisions of S.512, Cr.P.C. and Art.46 of Qanun-e-Shahadat, 1984, while keeping in view certain natural facts and elements---Said exception was available in matters, where accused was absconder---Purpose of recording of deposition under S.512, Cr.P.C. was that same could be used against the absconder accused on his arrest which seemed to be with an intent to preserve the deposition keeping in view the chances of deponent being dead; or incapable of giving evidence at such time---Such evidence, could not be of such weight as recorded in presence of accused, whereby accused was provided a fair opportunity to cross-examine the deponent to test the veracity of deponent and Art. 46, Qanun-e-Shahadat, 1984 had made it clear that procedure for recording evidence and its evidentiary value was available in the statute with certain conditions on legal grounds---If evidence recorded earlier, was allowed to be used against the absconding accused on his arrest without providing him an opportunity to cross-examine the witness, that could result in a departure from the word of fair trial on which the criminal administration of justice rested, unless the court or the prosecution justified the exceptional circumstances, which compelled them to depart from such mandatory requirement of law---On arrest of absconding accused, the prosecution and court, at first instance, should make all efforts to secure evidence in presence of accused---Trial Court should record evidence in presence of accused, earlier evidence recorded, could not be used against absconding accused, except in exceptional circumstances---Previously recorded evidence, could be taken into consideration, but its evidentiary value could not be equated with such statement which had been subjected to cross-examination---For giving weight to the statement of such witness, it was to be seen whether such statement intrinsically rang true; and whether or not supported by circumstances through any source.

Hidayatullah and others v. The State 2000 YLR 2330; Arab Tasleem v. The State PLD 2010 SC 642; Atta Muhammad and 3 others v. The State 1999 PCr.LJ 1140; The State v. Ali Zaman 1981 PCr.LJ 194 and Mahmood Ahmed v. The State PLD 1983 Lah. 612 rel.

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

----Ss. 353 & 512--- Penal Code (XLV of 1860), Ss. 302, 324, 452 & 114---Qatl-e-amd, attempt to commit qatl-e-amd, house-trespass after preparation for hurt, assault or wrongful restraint, abettor present when offence was committed---Appreciation of evidence---Maxim: A communi observantia non est recedendum---Applicability---Scope---Recording evidence in absence of accused---Using earlier recorded evidence against absconding accused on his arrest---Scope---Evidence of five witnesses, was not recorded in the case in presence of accused, but same was adopted by prosecution; and Trial Court had admitted such copies in evidence against accused and convicted him for life imprisonment---Trial Court had not given the reason/legal justification for resorting to such exceptional procedure, which otherwise was not within spirit of safe administration of law---In absence of explaining/giving reason for resorting to such exceptional procedure, the Trial Court had committed illegality while accepting the evidence of five prosecution witnesses, who were not examined in presence of accused---Such was not permissible for the prosecution to adopt the evidence recorded earlier except in certain conditions provided under the law---No justification and explanation was on record as to under what circumstances said five prosecution witnesses were not examined in that case--- Impugned judgment, in circumstances, was not sustainable under the law, such practice being a complete departure from the procedural law and against the norms and logic of established Maxim "A Communi observantia non est recedendum" (a thing was to be done in particular manner it had to be done in that manner, if it was not done so, will be unwarranted under the law)---Impugned judgment was set aside and case was remanded to the Trial Court for its decision afresh in accordance with law within period of three months with direction to re-examine said five prosecution witnesses.

A.R. Farooq Pirzada for Appellant.

Abdul Jabbar Shah, DDPP for the State.

Date of hearing: 13th August, 2012.

2013 P Cr. L J 258

[Sindh]

Before Muhammad Tasnim, J

AFAQ AHMED KHAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 872 of 2011, heard on 26th September, 2011.

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

----Ss. 497/498---Bail---Assessment of material on record---Principles---Deeper appreciation of the record cannot be gone into at bail stage, but only a tentative assessment of the same is to be made, just to find out prima facie the connection of the accused with the commission of the offence.

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

----Ss. 302/324/109/34---Qatl-e-amd, attempt to commit qatl-e-amd, abetment---Appreciation of evidence---Abetment---Principles---Case of a conspirator or abettor not present on the spot stands at a lower footing than the case of an accused instigating his companion to commit the crime being himself present on the spot.

Syed Amanullah Shah v. The State and another PLD 1966 SC 241 ref.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/109/34---Qatl-e-amd, attempt to commit qatl-e-amd, abetment---Bail, grant of---Case of further inquiry---Prosecution witnesses had not supported the version of the F.I.R.---Accused was in custody at the time of present occurrence and he was not shown to have had a meeting with any of his co-accused to commit the crime---Alleged abetment of the accused could only be determined by Trial Court, if any tangible evidence in this regard would be brought on record---Accused initially was not challaned as an accused and his name was shown in column No.2 with blue ink for want of evidence, and he was subsequently added as an accused only after grant of application filed by the prosecution side under S.227, Cr.P.C. by lower court only on the next day of filing, without affording any opportunity of hearing to the accused---Investigating Officer present in High Court had categorically stated that prosecution had no evidence against the accused to connect him with the commission of offence---Case against accused needed further inquiry as envisaged under S.497(2), Cr.P.C.---Bail was granted to accused in circumstances.

Tasawar Hussain and others v. The State and others 2008 PCr.LJ 1105; Alyappan Kuttan, Accused v. The State AIR 1995 T.C. 266; Shafiq Alam Faruqui and another v. The State 1986 PCr.LJ 2243; Arshad Ali Shah v. Saeed Ahmad Ashraf and another 1996 PCr.LJ 1673; The State v. Malik Mukhtar Ahmad Awan 1991 SCMR 322; Muhammad Ayub v. Muhammad Yaqub and another PLD 1966 SC 1003; Ch. Abdul Malik v. The State PLD 1968 SC 349; Muhammad Shafi v. Munawar Hussain and others 1996 PCr.LJ 751; Syed Amanullah Shah v. The State and another PLD 1996 SC 241; Muhammad Ashraf and others v. State 1999 YLR 2125; Qabil v. The State 2011 PCr.LJ 234; Rais Wazir Ahmad v. The State 2004 SCMR 1167; Ashique Ali Lashari v. The State 2000 MLD 1193; Anwar Shamim and another v. The State 2010 SCMR 1791; Shahzad Ahmed v. The State 2010 SCMR 1221; Muhammad Imran alias Pappu v. The State 2010 SCMR 1047; Muhammad Riaz v. The State 2002 SCMR 184; Mamaras v. The State and others PLD 2009 SC 385; Asif Ayub v. The State 2010 SCMR 1735; Muhammad Khan v. The State 2005 PCr.LJ 1797; Muhammad Riaz v. The State 2002 SCMR 184; Ali Hassan v. The State 2001 SCMR 1047 and Faraz Akram's case 1990 SCMR 1360 ref.

Muhammad Ilyas Khan and Muhammad Farooq for Applicant.

Zafar Ahmed Khan, Additional Prosecutor-General, Sindh for the State.

Mahmood Yousufi for the Complainant.

Date of hearing: 26th September, 2001.

2013 P Cr. L J 274

[Sindh]

Before Naimatullah Phulpoto, J

ABDUL WAHID---Petitioner

Versus

The STATE---Respondent

Criminal Revision No.S-52 and M.A. No. 1904 of 2011, decided on 19th June, 2012.

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

----S. 514---Forfeiture of surety bond---Absence of mitigating circumstances---Effect---Accused was granted bail---Applicant stood surety for the accused---Accused absented himself from date of hearing---Bond executed by surety was forfeited in its entirety and notice under S.514, Cr.P.C. was issued---Contentions of the surety that notice under S.514, Cr.P.C. was never served upon him, and that no lenient view was taken by the court and entire surety amount had been forfeited---Validity---Report regarding serving of notice revealed that the Trial Court had issued a notice under S. 514, Cr.P.C. and same was served upon the surety---Trial Court had adopted the procedure as provided under S.514, Cr.P.C.---Surety had not brought forward any mitigating circumstances to adopt a lenient view---Revision petition was dismissed with the observation that approach of the Trial Court appeared to be dynamic and progressive-orientated with the desire to discourage the accused persons from jumping bail bonds.

Saeed Akhtar v. The State 2009 SCMR 834 ref.

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

----S. 514---Forfeiture of surety bond---General rule---Absence of mitigating circumstances---Effect---Where an accused person jumped bail bond, entire surety amount became liable to be forfeited in the absence of any mitigating circumstances.

Saeed Akhtar v. The State 2009 SCMR 834 ref.

Shamsuddin N. Kobhar for Applicant/Surety.

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

2013 P Cr. L J 287

[Sindh]

Before Sadiq Hussain Bhatti, J

ABDUL REHMAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.89 of 2012, decided on 28th June, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 302/34---Qatl-e-amd, common intention---Bail, grant of---Further inquiry---Accused not present or participated in committing the murder---Accused was alleged to have committed the murder of the complainant's son along with co-accused persons (absconding)---Contentions of the accused were that no role had been attributed to him; that eye-witness who recorded his statement under S.164, Cr.P.C., had exonerated the accused; that accused had been falsely involved in the case due to his friendship with the absconding accused persons; that delay in lodging of F.I.R. had not been explained, and that no independent witness had been associated despite the occurrence having taken place in a thickly-populated area---Validity---Prosecution witness who gave information to the complainant about the absconding accused persons recorded his statement under S.164, Cr.P.C.---Said statement did not mention that the accused was present or participated in committing the murder of the deceased but the name of the accused was given by the complainant as an accomplice along with the absconding accused persons---Case of the accused required further inquiry in such circumstances---Bail application was allowed and the accused was released on bail.

PLD 1996 SC 241 rel.

Atta Hussain Gadi Pathan for Applicant.

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

Date of hearing: 25th June, 2012.

2013 P Cr. L J 294

[Sindh]

Before Farooq Ali Channa, J

FAZAL MUSTAFA---Applicant

Versus

The STATE and another---Respondents

Criminal Miscellaneous Application No.263 of 2011, decided on 6th July, 2012.

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

----Ss. 249-A, 561-A, 439 & 439-A---Application under S.561-A, Cr.P.C. filed directly before the High Court without approaching the Sessions Court first in its revisional jurisdiction---Maintainability---Remedy under S.561-A, Cr.P.C.---Nature---Application of accused under S.249-A, Cr.P.C. was dismissed by the Trial Court---Accused approached High Court directly under S.561-A, Cr.P.C., impugning order of Trial Court, without challenging the same before the Sessions Court in its revisional jurisdiction under Ss.439, 439-A, Cr.P.C.---Validity---Provision of S.561-A, Cr.P.C., was not meant to provide an alternate remedy---When a remedy was available with the aggrieved person the question to invoke the inherent powers of the High Court under S.561-A, Cr.P.C. would not arise---Proper remedy with the accused would be to challenge the illegality, if any, in the impugned order in the revisional jurisdiction under Ss.439, 439-A, Cr.P.C., as the said provisions specifically offered remedy to the aggrieved person---Application was not maintainable and was dismissed, in circumstances.

Government of N.-W.F.P. through Secretary, Forest Department v. Muhammad Tufail Khan PLD 2004 SC 313 rel.

Muhammad Khalid Mukhtar v. The State through Director, F.I.A. (C.B.A.) Lahore PLD 1997 SC 275 and State through Secretary Ministry of Interior v. Ashiq Ali Bhutto 1993 SCMR 523 ref.

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

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

----Ss. 249-A, 265-K & 561-A--- Application for acquittal under S.561-A, Cr.P.C. filed directly before the High Court---Jurisdiction of High Court---Scope---Exceptionally a High Court could exercise jurisdiction under S.561-A, Cr.P.C. directly, even where the accused had not approached the Trial Court for his acquittal under S.249-A or 265-K, Cr.P.C.

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

Nasir Rizwan Khan for Applicant.

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

Date of hearing: 6th July, 2012.

2013 P Cr. L J 305

[Sindh]

Before Syed Muhammad Farooq Shah, J

WAQAS ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.429 of 2010, decided on 20th July, 2012.

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

----S. 382-B---Pre-conviction period of imprisonment, benefit of---Principle---Section 382-B, Cr.P.C. is mandatory and ordinarily its benefit is to be extended to accused for the period he remained or detained in custody as an under-trial prisoner, at the time of awarding him sentence of imprisonment by Trial Court in the normal course, unless the case is of exceptional facts and circumstances or conduct of accused warrants denial of such benefit of him---Court while passing sentence of imprisonment must state in order/judgment whether benefit of S.382-B, Cr.P.C. is extended to accused or not and if accused does not deserve such concession, court must record reasons, in brief, for refusing to extend benefit of the section---Judicious discretion is always to be exercised in favour of convict unless it is unjustified or cause harm to any other party.

Abid Hussain and another v. Chairman, Pakistan Bait-ul-Maal PLD 2002 Lah. 482; Aloo v. The State 2000 SCMR 1655; Sultan and another v. The State 2000 SCMR 1818; Javed Iqbal v. The State 1998 SCMR 1539 and Muhammad Rafiq v. The State 1995 SCMR 1525 ref.

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

----Ss.382-B, 408 & 561-A---Penal Code (XLV of 1860), Ss. 324 & 337-L(1)---Attempt to commit qatl-e-amd and other hurts---Daman, non-payment of---Effect---Accused has served out his entire sentence of imprisonment but being detained in jail only on account of non-payment of Daman---Plea raised by accused was that his pre-trial imprisonment be treated as imprisonment suffered for non-payment of Daman---Validity---Accused had committed heinous offence and brutal act and liability to pay Daman would remain intact and relevant amount was to be recovered in the manner provided under law---Accused could apply for assistance from Zakat fund or Bait-ul-Maal or from non-governmental organizations etc. who could consider and take decision on his request in accordance with the relevant law and procedure---High Court directed jail authorities to release accused on realization of Daman or in alternate accused could also be released on his furnishing surety/security of an equal amount to Daman, as he had already undergone the awarded sentence---Appeal was disposed of accordingly.

Salman Hamid for Appellant.

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

Date of hearing: 16th July, 2012.

2013 P Cr. L J 318

[Sindh]

Before Syed Hasan Azhar Rizvi and Salahuddin Panhwar, JJ

MUHAMMAD BOOTA---Applicant

Versus

The STATE---Respondent

Bail Application No.465 of 2012, decided on 24th July, 2012.

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

----S. 497(2)--- Penal Code (XLV of 1860), Ss. 409/420/467/ 471/489-F/109/34---Criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forgery of valuable security, using as genuine a forged document, dishonestly issuing a cheque, abetment, common intention---Bail, grant of---Further inquiry---Alleged embezzlement of bank funds---Bank employees (co-accused) were alleged to have transferred the amount in question to the account of the accused from which it was further transferred to the account of a bank customer---Contentions of the accused were that he was not the beneficiary of the amount in question as it was specifically written in the complaint that bank employees debited bank funds into his account by making fake entries and subsequently transferred the amount to the account of a bank customer; that one of the bank employees was let off by the prosecution; that bank customer in whose account the amount had finally been transferred was also let off by the prosecution, and that the case depended on documentary evidence which could be proved at trial stage---Prosecution mainly contended that accused was directly involved in the case and had recorded his confessional statement before the Magistrate---Validity---Main allegation of forgery was against the bank employees and accused was not a beneficiary in any manner---One of the bank employees and bank customer, in whose account the amount in question was transferred, had been let of by the prosecution without any justification, which created doubts in the prosecution case---Accused had not admitted his guilt before the Magistrate but on the contrary disclosed how and under what circumstances he was cheated by the bank employees and co-accused---Case against accused depended upon documentary evidence, which was in the possession of the prosecution, therefore, there was no likelihood of tampering with the same---Case against accused fell within the ambit of further inquiry---Accused was granted bail, in circumstances.

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

----S. 497---Bail---Scope---Case against accused dependent upon documentary evidence in possession of the prosecution---Accused not a beneficiary of the offence---Effect---Prima facie accused would be entitled to bail in such circumstances.

Saeed Ahmed v. The State 1996 SCMR 1132 rel.

Khaleeq Ahmed for Applicant.

Muhammad Qasim, Standing Counsel for the State.

2013 P Cr. L J 338

[Sindh]

Before Sadiq Hussain Bhatti, J

PIR BUX alias PIRO and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. S-95 and S-112 of 2012, decided on 27th June, 2012.

Penal Code (XLV of 1860)---

----Ss. 399/402---Pakistan Arms Ordinance, (XX of 1965), S.13(d)---Making preparation to commit dacoity, assembling for purpose of committing dacoity---Appreciation of evidence---Failure to prove assembly for the purpose of committing dacoity---Arrest or conviction of accused persons in similar cases not established---Allegation against the accused persons and co-accused was that they had assembled on the side of a road armed with weapons in order to commit dacoity and the police identified them by the headlight of police vehicle---Trial Court convicted the accused persons and co-accused under Ss.399 and 402, P.P.C.---Validity---Police had not disclosed how accused persons and co-accused were known to them previously or whether same were involved in other criminal cases---Police did not collect any independent evidence from or around the place of incident to establish that they saw the accused persons and co-accused trying to stop any vehicle or robbing any passerby---All the accused were found together but it was not proved that they had assembled for the purpose of committing dacoity---Except for bare words of three prosecution witnesses there was no other reasonable material to infer that the accused and co-accused had assembled for the purpose of committing dacoity---Statement of the accused and co-accused before the police that they had assembled to commit dacoity was not sufficient to convict them unless such confession was made before the Trial Court or there was some sound evidence to prove the charge against them---Investigation was silent with regard to the efforts that had been made by the prosecution to collect information about the history of the accused and co-accused and as to whether they were previously charged or arrested or convicted in similar crimes---Evidence of prosecution witnesses had been disbelieved by the Trial Court with regard to the charge against the co-accused under S.13(d) of the Pakistan Arms Ordinance, 1965, but same evidence was believed in respect of the offences under Ss.399 and 402, P.P.C., without any corroboration---Appeals were allowed and convictions and sentences of the accused persons and co-accused were set aside.

Miss Shabana Kousar Jatoi for Appellants (in Criminal Appeal No.S-95 of 2012).

Mir Naeem Talpur for Appellants (in Criminal Appeal No.S-112 of 2012).

Shahzado Saleem, A.P.-G. for the State (in both Appeals).

Date of hearing: 25th June, 2012.

2013 P Cr. L J 345

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

LAL BUX---Appellant

Versus

DHANI BUX and 3 others---Respondents

Criminal Acquittal Appeal No. D-24 of 1997, decided on 9th May, 2012.

(a) Criminal trial---

----Two views in evidence---Golden thread which runs through the administration of justice in criminal cases, was that if two views were possible on the evidence adduced in the case, one pointing to the guilt of accused; and other to his innocence, the view which would favour the accused, should be adopted---Paramount consideration of the court was to ensure that miscarriage of justice was prevented.

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

----S. 417(2-A)---Appeal against acquittal---Principle to be followed by the Appellate Court considering the appeal against the conviction or acquittal was to interfere only when there were compelling and substantial reasons for doing so---If the view taken by Trial Court while acquitting accused was possible reasonable view of the evidence on record, the High Court ought not to interfere with such an order of acquittal merely because it was possible to take the contrary view; it was not as if the powers of the High Court in any way were curtailed in appreciating the evidence on record in an appeal against acquittal.

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

----S. 417(2-A)---Appeal against acquittal---Appreciation of appeal against acquittal---Principles.

The well-settled principles for the appreciation of appeal against acquittal amongst others are:--

(a) That with the acquittal, the presumption of the innocence of the accused becomes double, initially, that till found guilty accused is innocent and secondly that after trial a court below confirmed the assumption of innocence.

(b) that unless grounds on which trial Court had purported to acquit the accused were not supportable from evidence on record, the court would not interfere.

(c) That unless the judgment of acquittal is perverse and the reasons of acquittal are artificial and ridiculous, court would not interfere.

(d) That unless the conclusion recorded by a court below was such that no reasonable person would conceivably reach the same, the court would not interfere.

(e) That the court, however, would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion, and that too, with a view only to avoid grave miscarriage of justice and for no other purpose.

(f) And that Appellate Courts are loath to interfere unless it is established that, (i) misreading of evidence, (ii) lack of consideration of material evidence, (iii) reception of evidence illegally; (iv) violation of legal provisions; (v) jurisdictional defects; (vi) reliance placed on matters extraneous to the record; (vii) material witnesses for the prosecution were not recorded; (viii) the acquittal order on the face of it is contradictory; (ix) the order of acquittal was passed without hearing the prosecution; (x) the principles governing the appreciation of evidence, have been violated; (xi) the acquittal judgment was based upon surmises, suppositions or conjectures; (xii) acquittal is based upon reasons which do not appeal to a reasonable mind; (xiii) that there are gross misstatements appearing in the judgment under review.

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

----S. 417(2-A)--- Appeal against acquittal--- Powers of Appellate Court---General principles.

Following are the general principles with regard to the powers of the appellate court in dealing with an appeal against an order of acquittal:--

(a) In exercising powers, the appellate court will bear in mind relevant consideration such as (i) the presumption of innocence in favour of the accused, (ii) such presumption has been reinforced by an order of acquittal recorded by the trial Court, (iii) trial Court had the benefit of seeing witness in the box, (iv) the slowness of an appellate court in disturbing a finding of fact arrived at by the trial court, (v) the right of the accused to the benefit of any doubt.

(b) If true reasonably probably and even balanced views are possible, the appellate court should not disturb the finding of the acquittal recorded by trial Court.

(c) The different phraseology used in various decisions, such as to substantial and compelling reason, "good and sufficient cogent reasons", "strong reasons", etc. are not intended to curtail powers of an appellate court in an appeal against acquittal and review the entire evidence and to come to its own conclusion.

(d) Fanciful remote possibilities must be left out of account. The possible view in favour of the accused must be ground merely reasonable probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim benefit of doubt.

(e) Criminal trial---

----Appreciation of evidence---Contradiction in medical report and ocular testimony---Prosecution and not the accused was obliged to clarify the position, when there was an apparent contradiction in medical report and ocular testimony---Medical evidence was to be preferred; and it would be highly dangerous to rely upon the ocular testimony for the purpose of conviction.

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

----S. 417(2-A)---Appeal against acquittal---When an accused was acquitted from the charge by a court of competent jurisdiction then double presumption of innocence was attached to its order with which the superior courts would not interfere, unless the impugned order was arbitrary, capricious and fanciful and against the record---Law relating to reappraisal of evidence in appeal against acquittal was stringent in that the presumption of innocence was doubled and multiplied after finding of not guilty recorded by competent court of law---Such finding could not 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, non-reading of evidence---Law required that judgment of acquittal would not be disturbed even though second opinion could be reasonably possible---Appellate Court should always give proper weight and consideration to the view of the Trial Court as to the credibility of the witnesses; the presumption of innocence in favour of accused, a presumption certainly not weakened by his acquittal at the trial, the right of accused to the benefit of any doubt and the slowness of Appellate Court in disturbing a finding of fact arrived at by a judge, who had the advantage of seeing the witnesses---High Court would not exercise jurisdiction under S.417, Cr.P.C., unless the judgment of Trial Court was perverse, completely illegal and on perusal of evidence, no other decision could be given, except that accused was guilty; or there had been complete misreading of evidence leading to miscarriage of justice---In exercising said jurisdiction, High Court was always slow, unless it would feel that gross injustice had been done in the administration of criminal justice, due to the incompetency, stupidity or perversity of Trial Court culminating into distorted conclusions---Mere difference of opinion regarding appreciation of evidence was not a good ground for setting aside an acquittal---Court would not interfere with acquittal merely because on reappraisal of evidence it would come to the conclusion different from that of the court acquitting accused, provided both the conclusions were reasonably possible---Important test visualized in such cases was that the finding sought to be interfered with, after scrutiny under scrutiny, should be found wholly as artificial, shocking and ridiculous.

1983 SCMR 1992; PLD 988 Kar. 521; PLD 2009 SC 53 and PLD 2010 SC 632 rel.

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

----Ss. 302 & 324/34--- Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-e-amd, attempt to commit qatl-e-amd, common intention---Appeal against acquittal---Benefit of doubt---Principles---Trial Court, in the case had rightly acquitted accused persons as there was no misreading or non-reading of evidence---Any doubt arising in the prosecution case must be solved in favour of accused; and for giving the benefit of doubt to accused it was not necessary that there should be many circumstances creating doubt---If simple circumstances would create reasonable doubt in a prudent mind about the guilt of accused, then he would be entitled to such benefit not as a matter of grace and concession, but as a matter of right---Burden to prove its case beyond reasonable doubt was purely rested upon the prosecution and such burden could not be discharged by weakness found in the case of defence---Impugned judgment not requiring any interference, appeal against acquittal being devoid of any merit, was dismissed, in circumstances.

Nizamuddin Baloch for Appellant.

Khawand Bux Mahar for Respondents Nos.1 to 3.

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

Date of hearing: 8th February, 2012.

2013 P Cr. L J 374

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

FATEH MUHAMMAD KOBHAR---Appellant

Versus

SABZAL and 4 others---Respondents

Criminal Acquittal Appeal No.D-25 of 1998, decided on 9th May, 2012.

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

----Ss. 302, 147 & 148---Criminal Procedure Code (V of 1898), S.417(2-A)--- Qatl-e-amd, rioting--- Appeal against acquittal---Appreciation of evidence---Whole prosecution case was based on the motive raised by accused that deceased had illicit relations with his wife, but wife of accused had expired much earlier to the date of incident---No allegation against the accused that he repeated any other fire shot upon the deceased---Contradictions were found in the ocular account and medical evidence, which were sufficient to hold that the prosecution had failed to prove the guilt of accused persons, and they were rightly acquitted by the Trial Court---Trial continued for a long time, but nothing was available on record to show that the complainant ever made any effort or filed any application in the Trial Court either for calling or ensuring the presence or evidence of Investigating Officer or Mashir, but he waited a long time for acquittal; without making any effort; and took the plea that prosecution had failed to examine the Investigating Officer or Mashir, in the acquittal appeal, with the request to remand the matter---Impugned judgment did not suffer from any error of law and the conclusion drawn by the Trial Court was strictly in accordance with law; and accordingly no interference was called for---Acquittal appeal being devoid of merits was dismissed.

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

----Ss. 302, 147 & 148---Qatl-e-amd, rioting, rioting armed with deadly weapons---Medical evidence---Evidentiary value---Scope---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 confer the ocular evidence with regard to the seat of injury, nature of injury and kind of weapon used in the occurrence; and it could not connect accused with the commission of crime---Ordinarily, the value of medical evidence was only corroborative and would prove that the injuries could have been caused in the manner alleged and nothing more---Use which the defence could make of the medical evidence, was to prove that the injuries could not possibly have been caused in the manner alleged; and thereby discredited the eye-witnesses---Unless, the medical evidence in its turn would go so far that it completely would rule out all possibilities, whatsoever of injuries taking place in the manner alleged by the eye-witnesses, the testimony of the eye-witnesses could not be thrown out on the ground of alleged inconsistency between it and the medical evidence.

Muhammad Aslam v. State 1976 PCr.LJ 443; Akhter v. IIIrd Additional Sessions Judge, Okara 1990 PCr.LJ 525; Saindad v. State 1972 SCMR 74; Muhammad Khan v. State 1999 SCMR 1220; Tariq Pervez v. State 1995 SCMR 1345; Mst. Shamshad v. State 1998 SCMR 854; Mastan Ali v. Gulistan 1980 SCMR 889; Noor Muhammad v. State 2005 SCMR 1958; Qaisar Khan v. State 2009 SCMR 471; MODI's Medical Jurisprudence and Toxicology (Twenty-third Edition) rel.

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

----S. 417(2-A)---Appeal against acquittal---Presumption of innocence of accused would become double with acquittal---Unless, grounds on which Trial Court had purported to acquit accused were not supportable from evidence on record, or unless the judgment of acquittal was perverse the court would not interfere with the acquittal---Appellate Court would not interfere, unless misreading of evidence, violation of legal provisions, jurisdictional defects; acquittal order on the face of it being contradictory was established---Appellate Court ought to keep in mind the presumption of innocence in favour of accused, which had been reinforced by an order of acquittal recorded by the Trial Court, the Trial Court having the benefit of seeing witness in the witness box---If true reasonably probable and even balanced view was possible, the Appellate Court should not disturb the findings of the acquittal recorded by Trial Court---Appellate Court should always give proper weight and consideration to the view of the Trial Court as to credibility of the witnesses and presumption of innocence in favour of accused---High Court would not exercise jurisdiction under S.417, Cr.P.C., unless the judgment of Trial Court was perverse, completely illegal; and on perusal of evidence no other decision could be given, except that accused was guilty or there had been complete misreading of evidence leading to miscarriage of justice---Mere difference of opinion regarding appreciation of evidence was not good ground for setting aside an acquittal---Court would not interfere with acquittal merely because on reappraisal of evidence, it came to the conclusion different from that of the court acquitting accused---Important test visualized in such cases was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous---Law required that a judgment of acquittal would not be disturbed even though second opinion could be reasonably possible.

Azhar Ali v. State PLD 2010 SC 632 rel.

Amanullah G. Malik for Appellant.

Rasool Bakhsh I. Siyal for Respondents Nos.1, 3 and 4.

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

Date of hearing: 25th January, 2012.

2013 P Cr. L J 398

[Sindh]

Before Sadiq Hussain Bhatti, J

SIRAJ and 2 others---Applicants

Versus

The STATE---Respondent

M.A. No.747 of 2012 in Criminal Appeal No.S-40 of 2012, decided on 14th June, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 426 & 345---Penal Code (XLV of 1860), Ss. 376/34---Rape, common intention---Offence not compoundable---Compromise between parties---Complainant and victim filing affidavits and not objecting to suspension of sentence and release on bail---Effect---Contentions of the accused persons were that the parties had compounded the offence; that the complainant and victim had filed affidavits wherein they had forgiven the accused persons in the name of Allah; that although the offence was not compoundable but superior courts had taken a lenient view in cases wherein the parties had effected compromise---Validity---Complainant and victim had extended no objection in the shape of affidavits to the suspension of sentence awarded to the accused persons and their release on bail---Sentence awarded to the accused persons was suspended, in circumstances, and they were released on bail.

1995 PCr.LJ 1606; 2002 SCMR 184; 1998 SCMR 466 and 2004 PCr.LJ 923 ref.

Syed Tarique Ahmed Shah for Applicants.

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

Syed Madad Ali Shah for the Complainant.

Complainant Hussain and victim Mst. Saneeha present in Court.

2013 P Cr. L J 429

[Sindh]

Before Ahmed Ali M. Sheikh and Salahuddin Panhwar, JJ

NIAZ AHMED---Applicant

Versus

The STATE---Respondent

Criminal Transfer Applications Nos.D-48, D-49, D-50 and M.As. Nos.2292, 2295 and 2298 of 2012, decided on 4th October, 2012.

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

----Ss. 6, 7 & 23---Application for transfer of case, dismissal of---Terrorism, act of---Proof--Duty of police---Scope---F.I.R. was registered against the accused (Station House Officer) on the allegation that he had illegally detained a person at a private place and at the time of recovery proceedings he used weapons against the raiding Magistrate---Accused was aggrieved of cognizance taken by Anti-Terrorism Court and sought transfer of the same to court of ordinary jurisdiction---Validity---Accused in violation of law kept detenues in illegal custody at private place though he was under legal obligation to act strictly in accordance with law, which prima facie proved that he acted contrary to law hence committed offence of malfeasance by detaining private person in his custody---Accused also caused serious deterrence in legal duty of Magistrate by making direct firing and snatched detenues from the custody of Magistrate---Manner of offences committed by accused was sufficient to hold that prima facie he was guilty of committing serious offence of terrorism---Police officers were always supposed to act in aid of innocence as powers, jurisdiction and authority vested in them was never meant to exploit the same and they had been entrusted sacred duty of creating a sense of security and peace among individuals while creating a sense of terror and fear among criminals---Accused failed to make out a case where interference of High Court was required and he even failed to point out any illegality in the orders passed by Trial Court, which were otherwise legal, well justified and maintained under law--- Application for transfer of case was dismissed in circumstances.

Inamullah Rashid v. The State PLD 1998 Lah. 318; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Jehangir Akhter Awan and 2 others v. The State and 8 others PLD 2000 Kar. 89; Taj Muhammad v. Judge, Anti-Terrorism Court and another PLD 2003 Lah. 588; Muhammad Iqbal and another v. The State 1992 MLD 287; Muhammad Hafeez v. Special Judge, Anti-Terrorism Court, Mirpurkhas and 2 others 2001 PCr.LJ 199; Shahid Jameel v. Special Judge Anti-Terrorism Court, Faisalabad and 2 others 2004 PCr.LJ 1878; Nasir Masih v. The State and another 2008 PCr.LJ 713; Naseem Akthar alias Asghar and another v. The State 2007 YLR 1163; Mirza Shoukat Baig and others v. Shahid Jamil and others PLD 2005 SC 530 and Nazeer Ahmed and others v. Nooruddin and others 2012 SCMR 517 rel.

Zuber Ahmed Rajput for Applicant.

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

2013 P Cr. L J 449

[Sindh]

Before Naimatullah Phulpoto, J

MUHAMMAD HANIF---Applicant

Versus

STATION HOUSE OFFICER, POLICE STATION NAUSHEHRO FEROZE and another---Respondents

Criminal Miscellaneous Application No.S-363 of 2012, decided on 31st August, 2012.

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

----Ss. 154 & 155---Registration of F.I.R.---Condition precedent---Duty of Station House Officer (SHO)--- Scope--- Cognizable and non-cognizable offences---Station House Officer (SHO) had absolutely no power to refuse to register the case if from the information/statement of complainant a cognizable offence was made out---Whether information provided was false or correct was immaterial but the condition precedent for recording an F.I.R. under S.154, Cr.P.C. was that information must disclose an offence and that too a cognizable one---After registration of F.I.R. investigation process started and it was for the investigation officer to ascertain whether information provided was true or false---Where information provided disclosed an offence which was not cognizable by the police even then the Station House Officer (SHO) was required and bound under S.155, Cr.P.C. to record it in a station diary of the police station and refer the informant (complainant) to the Magistrate having territorial jurisdiction---In no circumstance Station House Officer (SHO) could refuse to enter the information in S.154, Cr.P.C. book or in station diary of police station as the case might be except on one condition that from information provided no offence at all was made out.

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

----Ss. 22-A & 154---Registration of F.I.R.---Justice of Peace---Application seeking directions for registration of F.I.R. not to be minutely scrtunized by Justice of Peace---Complainant alleged that Station House Officer snatched cash and other valuables from his brother, detained him in police lockup and demanded cash for his release---Station House Officer informed complainant that his brother had been detained as an F.I.R. was registered against him---Complainant moved application before Justice of Peace under S.22-A, Cr.P.C. for registration of F.I.R. against Station House Officer but same was dismissed---Contention of complainant was that Justice of Peace had touched upon minor details of the matter despite the fact that deeper appreciation was not warranted in law---Validity---Perusal of order of Justice of Peace showed that matter had been scrutinized minutely which was not the requirement of law---Impugned order of Justice of Peace showed that application was turned down mainly on the ground that a case was registered against the brother of complainant by the Station House Officer and accused intended to lodge proposed F.I.R. against police personnel with mala fide intention to harass the said Station House Officer from discharging his lawful duty---Question as to whether there was mala fide on part of the accused for lodging of F.I.R. or not could only be determined after recording statement of complainant---Deeper appreciation at the time of registration of F.I.R. was not required---Application was allowed, order of Justice of Peace was set aside and Station House Officer (SHO) was directed to register F.I.R. if from the statement of complainant cognizable offence was made out.

??????????? Mst. Bhaitan v. The State and 3 others PLD 2005 Kar. 621 and Muhammad Shafiq and 2 others v. Secretary to Government of Punjab and 2 others 2012 MLD 737 ref.

??????????? Muhammad Bashir v. SHO Okara Cantt. and others PLD 2007 SC 539 rel.

??????????? Achar Khan Gabole for the Applicant.

??????????? Mohan Lal Ladhani, D.D.P.P. for the State.

2013 P Cr. L J 474

[Sindh]

Before Muhammad Shafi Siddiqui, J

KHAISTA MEER and another---Applicants

Versus

The STATE---Respondent

Bail Application No.629 of 2012, decided on 3rd July, 2012.

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

----S. 497--- Penal Code (XLV of 1860), Ss.392/397/34---Robbery, robbery or dacoity with intent to cause death or grievous hurt, common intention---Bail, grant of---Accused and co-accused were alleged to have threatened the driver of complainant's bus with weapons, threatening the latter to move away from the bus as their money was due from the complainant---Contentions of the accused persons were that F.I.R. was lodged after a delay of seven (7) days despite the fact that distance between the place of incident and police station was one (1) kilometer; that complainant, who lodged the F.I.R., had not witnessed the incident and the F.I.R. was lodged on the disclosure of his driver and was accepted and recorded ipse dixit; that accused persons had remained in police custody for a considerable period but nothing came out of the investigation, and that the driver of the complainant had stated in his statement under S.161, Cr.P.C., that he did not see any weapons during the incident---Validity---Driver of the complainant had not mentioned the names of the accused persons in his statement, and categorically stated therein that he did not see the accused persons with weapons---Accused persons were neither arrested from the spot nor was any independent witness cited at the time of their arrest---Accused persons were not put to identification parade---Driver of the complainant had admitted that he could not identify the accused persons, therefore, the question was as to how the complainant knew their names and nominated them in the F.I.R., when he (complainant) had not witnessed the incident---Case of the accused persons was one of further inquiry and they were admitted to bail accordingly.

2011 PCr.LJ 445; 2008 YLR 2105 and 2007 PCr.LJ 1947 ref.

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

----S. 397--- Robbery or dacoity with intent to cause death or grievous hurt---Offender using deadly weapons at the time of robbery or dacoity---Word "use" mentioned in S.397, P.P.C.---Connotation.

Word "use" mentioned in section 397, P.P.C., could not be given a restricted meaning. Where the accused was armed with a weapon and threatened victims, it would come within the definition of "use of weapon", which in fact would make it easier for the accused or other culprits to perform the action which they intended.

PLD 1960 Lah. 559 and PLD 1963 SC 737 ref.

Saadat Hassan for Applicants.

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

Date of hearing: 29th June, 2012.

2013 P Cr. L J 499

[Sindh]

Before Naimatullah Phulpoto, J

GHULAM NABI NAREJO and 3 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.S-133 of 2011, decided on 7th December, 2012.

Penal Code (XLV of 1860)---

----S.302(b)---Qanun-e-Shahadat (10 of 1984), Art.47---Criminal Procedure Code (V of 1898), Ss.353 & 512---Qatl-e-amd---Appreciation of evidence---Absence of accused---Evidence, recording of--- Trial Court relying on evidence recorded under S.512, Cr.P.C., convicted accused and sentenced him to imprisonment for life---Validity---Accused was charged with offence which carried capital punishment and he could not be stripped of his valuable right of a fair and impartial trial, else the same would negate concept of due process of law, as fair trial was right of every accused---Co-accused were present at the time of taking evidence of prosecution witnesses and accused was also entitled for the same treatment after his arrest---Provisions of S.353 Cr.P.C. were mandatory in nature and taking of evidence of prosecution witnesses in absence of accused vitiated trial---Every Trial Court was empowered to believe evidence of all witnesses recorded in absence of accused, provided on arrest of accused, such witness was found dead or incapable of giving evidence or his attendance could not be procured without an amount of delay or expense---Complainant party was contesting the case in spite of that Trial Court adopted illegal procedure by allowing prosecution to rely upon same evidence, which was taken in absence of accused--- Conviction and sentence awarded to accused on the basis of such evidence was not sustainable in law and the same was set aside--- High Court directed Trial Court to take evidence of prosecution witnesses afresh, in presence of accused persons and case was remanded---Appeal was allowed accordingly.

Moonda and others v. The State PLD 1958 SC 275 rel.

Ch. Abdul Majeed v. The State 2004 YLR 747 and Shahmand and 6 others v. The State 1991 PCr.LJ 833 ref.

Ali Nawaz Ghanghro, Athar Abbas Solangi, Muhammad Hashim Soomro for Appellants.

Ali Nawaz S. Junejo for the Complainant.

Imtiaz Ahmed Shahani, State counsel.

Date of hearing: 7th December, 2012.

2013 P Cr. L J 526

[Sindh]

Before Syed Hasan Azhar Rizvi and Salahuddin Panhwar, JJ

EIDAL KHAN METLO---Applicant

Versus

IMAM ALI alias BALI and another---Respondents

Criminal Revision Application No.D-4 of 2011, decided on 9th August, 2012.

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

----Ss. 6, 7 & 23--- Penal Code (XLV of 1860), Ss.302/324/353/ 148/149---Anti-Terrorism Court, jurisdiction of---Scope---Attack on a police picket located in a remote area whether an "act of terror"---Scope---Accused persons had allegedly made an assault on a police picket, which resulted in the death of a police official---Police picket was situated in a remote area with no public in its vicinity---Anti-Terrorism Court allowed application of accused under S.23 of Anti-Terrorism Act, 1997 and transferred the case to the Court of Session on the basis that complainant and eye-witnesses had not mentioned that the firing by accused persons created harassment, fear, terror and insecurity in the minds of the public---Legality---While deciding applicability of Ss.6 & 7 of the Anti-Terrorism Act, 1997, the phrase 'action' carried more weight than the phrase "designed to"---Place of incident, in the present case, was a police picket which was normally established in an area to ensure safety and security of the people of the area---"Action" i.e. manner of offence, in the present case, was an attack upon the police picket---Such action leads to an alarming situation and impression upon the people that, if police officials and police posts were not safe then what impact would it have on them---Such actions showed that there was lawlessness and the public at large felt serious effects of insecurity, lawlessness and uncertainty as a result---Present case was not one of private vendetta and accused persons deliberately and intentionally assaulted the police picket with deadly weapons---"Action", taken by the accused persons in the present case, could not be presumed to have remained unnoticed by the locality nor could it be said to be an ordinary offence---Present case was a case of terrorism within the jurisdiction of the Anti-Terrorism Court---Impugned order of Anti-Terrorism Court was illegal and not maintainable---Revision application was allowed accordingly.

Nooruddin v. Nazir Ahmed 2011 PCr.LJ 1370 ref.

Mirza Shoukat Baig and others v. Shahid Jamil and others PLD 2005 SC 530; Nazeer Ahmed and others v. Noorudin and others 2012 SCMR 517; Mst. Najim un Nisa v. Special Court ATA 2003 SCMR 1323; Matau Rehman v. Anti-Terrorism Court Faisal Abad 2008 MLD 840 and Akhtar Hussain v. Special Judge ATC Lahore 2005 YLR 2336 rel.

Athar Abbas Solangi for Applicant.

Sarfraz Khan Jatoi for Respondent No.1.

Muhammad Yaqoub Dahani, State counsel.

Date of hearing: 9th August, 2012.

2013 P Cr. L J 553

[Sindh]

Before Abdul Rasool Memon and Riazat Ali Sahar, JJ

MANTHAR ALI---Petitioner

Versus

STATION HOUSE OFFICER and 3 others---Respondents

Constitutional Petition No.D-666 of 2012, decided on 18th July, 2012.

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

----Ss.154 & 157---Police Rules, 1934, Ch. XXIV, Rr. 24.4 & 24.7---Constitution of Pakistan, Art. 199---Constitutional petition---Registration of F.I.R. for cross-versions---Scope---Station House Officer (SHO)/respondent conducted investigation into the incident and refused to register F.I.R. for the version advanced by the complainant (petitioner) on the grounds that in respect of the same incident proposed accused party had recorded an F.I.R., and complainant wanted to register a case falsely to pressurize the proposed accused party---Contentions of complainant were that opinion of SHO before lodging of F.I.R. and conducting investigation was beyond the scope of S.154, Cr.P.C.; that investigation was the function of the investigation officer and not the SHO, and that counter-version of complainant could be recorded and investigated in accordance with law---Validity---Once complainant conveyed information to the SHO regarding commission of cognizable offence, the SHO was duty bound to act in accordance with law---Proposed accused had already registered a case against the complainant party and SHO had stated that no such incident as alleged by the complainant had taken place---SHO, in such circumstances, was competent to invoke provisions of Rules 24.4 and 24.7 of Chapter XXIV of Police Rules, 1934 and S.157(b), Cr.P.C.---Constitutional petition was allowed, SHO was directed to record statement of complainant and from statement so recorded if a cognizable offence was made out, then to record the same in terms of S.154, Cr.P.C.

Dr. Inayatullah Khilji and 9 others v. 1st Additional District and Sessions Judge (East) Karachi and 2 others 2007 PCr.LJ 909 ref.

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

----S. 54---Arrest of accused without warrant---Scope---"Reasonable suspicion"---Connotation---Word "reasonable suspicion" used in S.54, Cr.P.C., did not mean a mere vague surmise, but a bona fide belief on part of the police that an offence had been committed or was about to be committed---Such belief had to be founded on some definite averments tending to throw suspicion on the person arrested.

Athar Abbas Solangi for Petitioner.

Ameer Ahmed Narejo, State counsel along with SIP Sadoro Khan Lashari, S.H.O. of Police Station Sanjar Bhatti for Respondents.

Date of hearing: 17th July, 2012.

2013 P Cr. L J 575

[Sindh]

Before Naimatullah Phulpoto, J

ALI GOHAR TANGWANI---Applicant

Versus

The STATE---Respondent

Criminal Review Application No.79 of 2011, decided on 25th July, 2012.

Criminal Procedure Code (V of 1898)---

----S. 514---Bail bond, forfeiture of---Plea for reduction in surety amount forfeited refused---Applicant stood surety for accused, who had been granted bail in a murder case---Accused did not appear in court after grant of bail---Notice under S.514, Cr.P.C, was issued to applicant and thereafter Trial Court ordered forfeiture of full amount of bail bond---Contentions of applicant were that he stood surety for accused purely on humanitarian grounds and had no relationship with him, therefore, lenient view should be taken by reducing the amount of surety forfeited---Validity---Applicant had not brought on record any circumstance to show that he had made serious efforts for production of accused before the Trial Court---Accused was still absconding---No ground for taking leneient view had been brought on record---Trial Court had observed all the legal formalities; provided an opportunity of hearing to the applicant and keeping in view legal and factual position ordered the forfeiture of full amount of bail bond---Revision application was dismissed, in circumstances.

Zeeshan Kazmi v. State PLD 1997 SC 267 and Abdul Bari v. Amir Jan PLD 1998 SC 50 ref.

Athar Abbas Solangi for Applicant.

Altaf Hussain Surahio for the State.

2013 P Cr. L J 587

[Sindh]

Before Farooq Ali Channa, J

Mian MUMTAZ RABBANI---Appellant

Versus

GHULAM QADIR and 4 others---Respondents

Criminal Acquittal Appeal No.22 of 2008 and M.A. No. 3116 of 2009, heard on 11th December, 2012.

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

----S. 417(2-A)---Appeal against acquittal---Scope---Any person aggrieved by an order of acquittal had statutory right as contemplated under S. 417(2-A), Cr.P.C. to prefer an appeal to High Court against acquittal within 30 days of order of acquittal without applying for special leave.

Abdul Jalil v. Zulfiqar Ali and others 1998 PCr.LJ 617 rel.

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

----S. 417(2-A)---"Aggrieved person"---Definition---Aggrieved person was a person who had suffered a legal grievance; someone against whom a decision had been pronounced which had wrongfully deprived him of or wrongfully refused him something, or wrongfully affected his title to something, having personal interest in the performance of the legal duty, which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefits or advantages or the curtailment of a privilege or liberty or franchise.

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

----S. 417 (2-A)---Penal Code (XLV of 1860), Ss. 193, 196, 463 & 471---False evidence, giving or fabricating false evidence with intent to procure conviction, forgery, using as genuine a forged document---Appeal against acquittal---Maintainability---"Aggrieved person"---Scope---Accused persons filed a civil suit against the appellant on basis of a forged sale agreement---High Court gave directions to file criminal complaint against accused persons under Ss.193, 196, 436 & 471, P.P.C. for presenting a forged sale agreement in court---Trial Court after recording of evidence acquitted the accused persons---Contention of appellant was that accused persons in their statements under S. 342, Cr.P.C. had stated that they have been falsely implicated by the appellant who himself made corrections/tampered with the disputed documents and the Trial Court in the impugned judgment had not given importance to the answer of the respondents nor the said answer was the base of acquittal of respondents---Contention of accused persons was that appellant was neither complainant nor an "aggrieved person" of the findings recorded by Trial Court---Validity---Trial Court while passing the impugned judgment of acquittal had given no observation against the appellant depriving him of his legal rights protected under the Constitution nor resulted in the loss of personal benefits/advantages to the appellant---Statement of accused persons under S. 342, Cr.P.C. was not the basis of their acquittal---Appellant did not come within the purview of an "aggrieved person" hence he was not entitled to file present appeal against acquittal---Appeal against acquittal was dismissed accordingly.

Appellant in person.

Ghulam Shabir Dayo for Respondents.

Sardar Ali Shah, A.A.-G.

2013 P Cr. L J 600

[Sindh]

Before Riazat Ali Sahar, J

MUHAMMAD RAMZAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-557 of 2012, decided on 31st August, 2012.

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

----Ss. 497 & 156---Penal Code (XLV of 1860), S. 395---Dacoity---Bail, grant of---Further inquiry---Interrogation of accused before his arrest---Identification parade conducted improperly---Effect---Accused and co-accused were alleged to have committed dacoity at complainant's house and robbed gold articles, mobile phone and cash---Name of accused did not transpire in the F.I.R.---No incriminating article had been recovered from the possession of the accused including robbed articles or crime weapon---Investigating officer got permission from the Magistrate to conduct interrogation of accused prior to his arrest---Law did not permit the police to conduct any interrogation in the crime prior to arrest of the accused particularly in cases where there was substantial evidence available against him---In case of any cognizable offence, accused had to be arrested first and subsequently he could be interrogated---Investigation was also silent regarding reasons for seeking permission from Magistrate in order to conduct interrogation and investigation of accused---Identification parade was conducted after 4 days of accused's arrest and 24 days after the date of his first interrogation---Identification parade was conducted without applying due course of law as 18 dummies were arranged for 3 suspects and same was held jointly---Challan against accused had been submitted and he was not required by the police for further investigation---Accused was granted bail in circumstances.

Nazir Ahmad v. Muhammad Ahmad v. Muhammad Iqbal 2011 SCMR 527 ref.

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

----S. 156---Interrogation of accused before his arrest---Legality---Law did not permit the police to conduct any interrogation in the crime prior to arrest of the accused particularly in cases where there was substantial evidence against him---In case of any cognizable offence, accused had to be arrested first and subsequently he could be interrogated.

Syed Tarique Ahmed Shah for Applicant.

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

Date of hearing: 31st August, 2012.

2013 P Cr. L J 635

[Sindh]

Before Riazat Ali Sahar and Abdul Rasool Memon, JJ

PERVEZ alias GIDARI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-78 of 2011, decided on 20th July, 2012.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Delay in sending samples---Safe custody of samples doubtful---Police apprehended the accused on receipt of spy information and allegedly found 1200 grams of charas in his possession---Trial Court convicted and sentenced the accused under S.9(c) of Control of Narcotic Substances Act, 1997---Validity---Delay of six (6) days in dispatch of samples to Chemical Analyzer---Although R.4(2) of Control of Narcotic Substances (Government Analysts) Rules, 2001, regarding dispatch of samples for analysis by not later than 72 hours of their seizure, was not mandatory but samples should be dispatched as early as possible unless for reasons to be recorded---Evidence of person (police official) who had the samples in his possession for six (6) days should have been recorded by the prosecution to show whether the samples were in safe custody or not---Sealed parcel containing sample was not de-sealed before any prosecution witness (police officials) and without seeing the actual condition of samples in the parcel, all the prosecution witnesses recognized the same as charas recovered from the possession of the accused---Property (narcotic) was produced in court after chemical examination by the Chemical Analyzer and presumption could be drawn that seals thereon belonged to Chemical Examiner's office but prosecution witnesses (police officials) had deposed that it bore their seal and signatures---Investigation was conducted dishonestly which rendered the entire prosecution case doubtful---Accused was extended benefit of doubt and was acquitted---Appeal was allowed accordingly.

(b) Criminal trial---

----Benefit of doubt---Scope---Single infirmity creating reasonable doubt in the mind of a prudent man regarding the truth of the charge was sufficient to give benefit of doubt to the accused.

(c) Criminal trial---

----Burden of proof---Scope---Merely because the burden is on the accused to prove innocence, did not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt.

Asif Ali Abdul Razzak Soomro for Appellant.

Ali Raza Pathan, State Counsel for A.A.-G. for the State.

Date of hearing: 19th July, 2012.

2013 P Cr. L J 649

[Sindh]

Before Maqbool Baqar and Naimatullah Phulpoto, JJ

MANZOOR ALI---Applicant

Versus

The STATE---Respondent

Bail Application No.487 of 2012, decided on 10th September, 2012.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 420, 468, 471 & 109---Prevention of Corruption Act (II of 1947), S. 5(2)---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment, criminal misconduct---Interim pre-arrest bail, confirmation of---Rule of consistency---No chance of accused tampering with prosecution evidence---Effect---Accused and co-accused persons were alleged to have embezzled Government funds in connivance with each other---Co-accused persons had already been granted bail by Trial Court---Case of accused was identical to that of said co-accused persons---Investigation of case was complete and accused was no more required for further investigation---Prosecution case was based on documentary evidence, therefore, there was no question of tampering with the same---Allegation against accused with regard to his participation in the offence was yet to be proved by the prosecution at trial---Accused had made out a case of pre-arrest bail on the rule of consistency---Interim pre-arrest bail granted to accused was confirmed in circumstances.

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

Khaleeq Ahmed for Applicant.

Ashfaq Ahmed Tagar, D.A.-G. along with Syed Israr Ali Additional Director Law, FIA and SI Nafees Ahmed FIA for the State.

2013 P Cr. L J 663

[Sindh]

Before Sadiq Hussain Bhatti, J

ANWAR SAEED through Superintendent, District Jail Malir---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.320 of 2011 and M.A. No.206 of 2012, decided on 24th August, 2012.

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

----S. 392---Robbery---Appreciation of evidence---Benefit of doubt---Delay in reporting incident not explained---No recovery made from accused---Essential prosecution witnesses not examined---Effect---Accused and co-accused persons were alleged to have robbed the complainant of his mobile phones and cash---Trial Court convicted and sentenced accused under S.392, P.P.C.---Validity---Delay of two hours in reporting incident to police had not been explained by the complainant---Complainant in his examination-in-chief did not specifically state that accused was the person who robbed him of his cash and mobile phones but only stated that accused caused a butt blow on his head---Complainant was not referred to a medico-legal officer for examination of his injury and there was nothing on record to prove that he had received injury on his head---Mashirnama of arrest and recovery from accused showed that he was armed with a pistol but neither any cash nor mobile was recovered from him---Prosecution failed to examine two essential prosecution witnesses who were to corroborate the version of the complainant---Accused was given benefit of doubt---Appeal was allowed, conviction and sentence awarded to accused was set aside and he was acquitted of the charge.

(b) Criminal trial---

----Unrepresented accused---Effect---Cases where accused was conducting his case himself, Trial Court should be more careful and cautious in conducting such type of cases.

Appellant produced in Custody.

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

Date of hearing: 16th August, 2012.

2013 P Cr. L J 672

[Sindh]

Before Abdul Rasool Memon, J

MEER MUHAMMAD---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-232 of 2012, decided on 12th June, 2012.

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

----S. 497---Penal Code (XLV of 1860), Ss. 161, 165, 343 & 34---Prevention of Corruption Act (II of 1947), S. 5(2)---Public servant taking gratification other than legal remuneration in respect of an official act, public servant obtaining valuable thing, without consideration, from person concerned in proceeding or business transacted by such public servant, wrongful confinement for three or more days, common intention, criminal misconduct---Bail, grant of---Rule of consistency---Delay in lodging F.I.R.---Allegation against the accused (police-official) and co-accused (police-officials) was that they forcibly snatched cash and mobile phone from the complainant before detaining him in Government quarters for three days and only released him after receiving a bribe---Contentions of the accused were that F.I.R. had been registered after about one year of the incident without any explanation; that co-accused whose case was similar to that of the accused was already released on bail; that during investigation complainant had sworn on an affidavit whereby he exonerated the accused from the commission of the alleged offence, and that mere abscondence of the accused would not disentitle him from bail as his case was one of further inquiry---Validity---Delay of one year in approaching the court for lodging of F.I.R. had not been explained---Case of accused was consistent to the case of co-accused, who had been granted bail despite being shown as an absconder in the challan---Accused was also entitled to the same treatment---Accused was released on bail, in circumstances.

Malik Ahmed Awan v. The State 1991 SCMR 322; Ibrahim v. Hayat Gul and others 1985 SCMR 383; Nadeem v. The State PLD 1996 Kar. 490; Sher Ali alias Shery v. The State 1998 SCMR 145; Najeed Gul v. Khalid Khan 1989 SCMR 382; 2008 SCMR 173; Mitho Pitafi v. The State 2009 SCMR 299; Muhammad Ismail v. The State 2006 MLD 435 and Mazhar Iqbal v. the State 2005 PCr.LJ 923 ref.

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

----S. 497---Bail---Delay in lodging F.I.R.---Effect---Such delay ipso facto was no ground for grant of bail.

Qazi Manzoor Ahmed for Applicant.

Shahid Ahmed Jatoi, State counsel.

Date of hearing: 5th June, 2012.

2013 P Cr. L J 688

[Sindh]

Before Aftab Ahmed Gorar, J

FAROOQ SHAH---Appellant

Versus

The STATE---Respondent

Criminal Revision No.138 of 2012, decided on 30th November, 2012.

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

----S. 489-F---Dishonestly issuing a cheque--- Appreciation of evidence---Obligation to pay proved---Effect---Accused allegedly induced the complainant to pay him a sum of money on the pretext of purchasing a consignment---Accused failed to supply the consignment and consequently issued cheques to the complainant, which were dishonoured on presentation--- Trial Court convicted and sentenced accused to 2-1/2 years' imprisonment and directed him to pay Rs.50,000 as compensation to the complainant---Appellate Court maintained conviction recorded by Trial Court but reduced sentence of accused to 2 years' imprisonment---Validity---Admittedly there was a deal between the parties in consequence whereof accused either had to supply the consignment or refund the money---Evidence on record showed that cheques were issued by accused, who neither made any prior arrangements with the bank to honour the cheques in question nor showed that bank was at fault in dishonouring the cheque---Prosecution witnesses fully implicated accused with the commission of the alleged offence---Revision application was dismissed in circumstances.

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

----S. 489-F---Dishonestly issuing a cheque---Proof---Prerequisites---For attracting provisions of S.489-F, P.P.C. it had to be shown that cheque was issued; that cheque was issued with dishonest intention; that purpose of issuance of cheque was to repay a loan or to fulfil an obligation, and that cheque was dishonoured on presentation.

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

----S. 489-F---Dishonestly issuing a cheque, offence of---Exceptions---Provisions of S.489-F, P.P.C. would not be attracted where the accused had made arrangements with the bank to ensure that cheque would be honoured, or where the bank was at fault in dishonouring the cheque.

(d) Criminal trial---

----Evidence--- Minor discrepancies--- Effect--- Such discrepancies were to be ignored and no importance could be attached thereto.

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

----S. 439---Revisional jurisdiction of High Court---Scope---Revisional jurisdiction of High Court could not be used to interrupt or subvert the normal criminal proceedings unless an order was found tainted with miscarriage of justice.

2000 PCr.LJ 576 rel.

Syed Shahid Mushtaq for Applicant.

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

Date of hearing: 15th November, 2012.

2013 P Cr. L J 701

[Sindh]

Before Syed Muhammad Farooq Shah, J

MUHAMMAD NADEEM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.354 and M.A. No. 7846 of 2011, decided on 6th August, 2012.

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

----S. 302(b)--- Qanun-e-Shahadat (10 of 1984), Art. 129--- Qatl-e-amd---Presumption regarding withholding evidence of material witnesses---Effect---Appreciation of evidence---Accused (appellant) was alleged to have murdered his wife (deceased), whom he had divorced before the alleged murder ---Deceased was found killed in a house, with the door locked from the inside---Trial Court convicted and sentenced the accused under S.302(b), P.P.C.---Validity---Case of unseen incident---No ocular testimony---Strained matrimonial relations between the parties---False implication could not be ruled out---Contradictions existed in statements of prosecution witnesses and circumstantial evidence with regard to place of arrest of accused and recovery of alleged weapons of offence---Crime weapons were allegedly recovered on pointation of accused after about 30 months of the incident and same were neither wrapped/sealed nor sent for examination to Chemical Examiner---Clothes of deceased were not sent to Serologist for examination and report---Prosecution had withheld best available evidence of material witnesses which raised the presumption that they would not have supported the prosecution (Art.129 of Qanun-e-Shahadat, 1984)---Fact that deceased was found killed in a house with the door locked from the inside, did not appeal to common sense, as prosecution had not brought any clarification as to how a person after committing murder could lock the door from inside of the house--- Accused had divorced the deceased, therefore, there was no justification of his being with her---Evidence of witness, who had last seen the accused in front of the house of occurrence, was recorded after a delay of 15 days---Amended charge included names of two brothers of accused, which showed mala fide and ulterior motives on the part of complainant's side due to animosity---Appeal was allowed, conviction and sentence awarded by Trial Court was set-aside and accused was acquitted of the charge.

Tariq Pervez v. The State 1995 SCMR 1345; Muhammad Saeed v. The State 2008 PCr.LJ 1752; Ghulam Murtaza v. The State 2010 PCr.LJ 461; Allahdad alias Sajjad and another v. Mst. Najma and another 2009 YLR 788; Dhani Bux v. The State 2011 MLD 1419; Sikandar v. The State 2008 PCr.LJ 1468; Shahzad Tanveer v. The State 2010 SCMR 172; Muhammad Aslam v. Muhammad Zafar and 2 others PLD 1992 SC 1; PLD 1973 SC 418 and 2011 SCMR 664 ref.

Farzand Ali v. The State 2010 MLD 882; Rahat Ali v. The State 2010 SCMR 584; Sultan and others v. The State 1987 SCMR 1177 rel.

(b) Criminal trial---

----Benefit of doubt---Simple circumstance creating reasonable doubt---Guilt of accused---Effect---Accused would be entitled to benefit of such circumstance not as a matter of grace and concession but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345; Muhammad Saeed v. The State 2008 PCr.LJ 1752 and Ghulam Murtaza v. The State 2010 PCr.LJ 461 rel.

(c) Criminal trial---

----Appreciation of evidence---Prosecution evidence---Benefit of favourable instances---Scope---Benefit of all such instances in prosecution evidence must go to the accused regardless of the fact whether accused had taken any such defence plea or not.

Shaikh F. M. Javaid for Appellant.

Zafar Ahmed Khan, Additional Prosecutor-General, Sindh for the State.

Dates of hearing: 25th and 26th July, 2012.

2013 P Cr. L J 727

[Sindh]

Before Salahuddin Panhwar, J

SIKANDAR ALI---Applicant

Versus

SHO POLICE STATION, B SECTION KHAIRPUR and 3 others---Respondents

Criminal Miscellaneous Application No.316 of 2012, decided on 27th August, 2012.

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

----Ss. 22-A, 22-B & 561-A---Penal Code (XLV of 1860), Ss. 324, 337-H(2), 148, 149 & 114---Attempt to commit qatl-e-amd, hurt by rash or negligent act, rioting armed with deadly weapons, unlawful assembly, abettor present when offence committed---Application for re-investigation of case, dismissal of---Case pending before Trial Court---Effect---Allegation against accused and co-accused persons was that they trespassed into the house of complainant party and fired upon them---Plea of alibi raised by accused was not considered by investigation officer---Accused moved application under Ss. 22-A and 22-B, Cr.P.C. before Justice of Peace for re-investigation of case, but same was dismissed---Prosecution contended that accused was at liberty to agitate the plea of alibi before Trial Court and at present stage, re-investigation of case was not permissible under the law as same would prejudice the case of complainant party---Validity---Accused did not question the order of Magistrate who took cognizance into the matter despite the fact that law provided remedy if there was any grievance to any party against order of Magistrate on report of police submitted under Ss. 170 & 173, Cr.P.C.---Accused sought his discharge/release from the case which was pending before a court of law and if the accused found himself entitled to acquittal he could approach the Trial Court, which was competent to pass such order, therefore, no useful purpose would be served if re-investigation was allowed---Application was dismissed, in circumstances.

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

----S. 156---Investigation into cognizable case---Scope---Collection of evidence or recording of statements of defence witnesses in favour of accused during course of investigation was not permissible under the law.

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

----S. 156---Investigation into cognizable case---Purpose---Purpose of investigation had never been to determine the question of guilt or innocence but collection of material and its submissions before court of law for determination.

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

----S. 156---Investigation into cognizable case---Plea of alibi decided during investigation---Effect---Deciding upon plea of alibi at investigation stage would amount to pre-trial verdict, which jurisdiction was never vested with the investigation agency.

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

----S. 156---Re-investigation into cognizable case---Scope---Re-investigation could be carried out at any stage but it should be on solid grounds or where it was prima facie established that earlier investigation was mala fide or a colourful exercise.

Nisar Ahmed Bhambhro for Applicant.

Complainant in person.

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

2013 P Cr. L J 735

[Sindh]

Before Habib-ur-Rehman Shaikh, J

NABI GUL---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-1161 of 2011, decided on 13th July, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 8 & 9(c)---Juvenile Justice System Ordinance (XXII of 2000), S. 7---Possession and trafficking of narcotic---Bail, refusal of---Plea of juvenility, rejection of---Supervision and control over vehicle carrying narcotic---Scope---Heroin weighing 75 kilograms was allegedly found from the secret cavities of a truck in which the accused was present as a second driver---Contentions of accused were that alleged heroin was not recovered from his exclusive possession but same was recovered from the truck; that no driving licence had been secured from him by the police; that at the time of incident he was aged about 17 years and as such his case fell within the ambit of Juvenile Justice System Ordinance 2000; that although the Medical Board had opined that accused was 20 years of age but doctors of the Board had given contradictory versions in their cross-examination---Validity---Accused, who was apprehended at the spot, was one of the drivers of the truck in question and truck was under his supervision and control---No documentary proof existed regarding enmity of accused with the complainant party so as to involve him in the matter falsely---Offence alleged was punishable with death and fell within the ambit of prohibitory clause of S.497(1), Cr.P.C.---Medical Board had declared age of accused to be 20 years---Bail application of accused was dismissed, in circumstances.

2012 PCr.LJ 897; 2011 SCMR 165 and 2012 SCMR 573 distinguished.

2002 SCMR 629; 1999 SCMR 1271; 2012 YLR 314; 2012 YLR 1115; PLD 2000 SC 813; 1992 PCr.LJ 2458; 2009 YLR 1029; PLD 2009 Kar. 33 and PLD 1994 Kar. 65 ref.

Syed Mushtaque Hussain Shah along with Miss Rizwana Jabeen Siddiqui for Applicant.

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

Date of hearing: 6th July, 2012.

2013 P Cr. L J 749

[Sindh]

Before Naimatullah Phulpoto, J

Mst. SAHIB KHATOON---Petitioner

Versus

S.H.O. POLICE STATION, GARHI KHAIRO and 2 others---Respondents

Constitutional Petition No.S-404 of 2012, decided on 30th July, 2012.

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

----S. 154--- Constitution of Pakistan, Art. 199---Constitutional petition---Registration of F.I.R.---Duty of Station House Officer (S.H.O.)---Scope---Complainant (petitioner) alleged that proposed accused/police official murdered the deceased and lodged a false F.I.R. to show the murder as a police encounter---Complainant approached Station House Officer (S.H.O) for registration of F.I.R. but police refused to do so---Contentions of complainant were that S.H.O. had failed to perform his statutory duty by refusing to record her statement; that there were eye-witnesses of the incident and medical certificate of deceased was also available on record, and that S.H.O. had launched a false F.I.R. against the deceased with mala fide intentions to show that the incident was a police encounter---Validity---Station House Officer (S.H.O.) had a duty to record statement of complainant in case cognizable offence was made out, in terms of S.154, Cr.P.C., but same was not done---Before recording an F.I.R., S.H.O. was not supposed to hold an inquiry as to the correctness or otherwise of the information received by him for the purpose of being reduced in writing as F.I.R.---Plea of State counsel that deceased was involved in other cases and died in a police encounter was not sufficient ground for the S.H.O. to refuse lodging of F.I.R.---S.H.O. was directed to record statement of complainant in verbatim, if cognizable offence was made out---Constitutional petition was disposed of accordingly.

Muhammad Bashir v. Station House Officer PLD 2007 SC 539 rel.

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

----S. 154---Registration of F.I.R.---Duty of Station House Officer (S.H.O)---Scope---Before recording an F.I.R., S.H.O was not supposed to hold an inquiry as to the correctness or otherwise of the information received by him for the purpose of being reduced in writing as F.I.R.---S.H.O had no authority under the law to refuse recording of F.I.R. where information conveyed disclosed the commission of cognizable offence.

Muhammad Yaqoob Dahani for Petitioner.

Habibullah Ghouri for proposed Accused.

Naimatullah Bhurgari, State Counsel.

2013 P Cr. L J 765

[Sindh]

Before Aftab Ahmed Gorar, J

WAQAS---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 1222 of 2012, decided on 24th December, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 302---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-e-amd---Bail, grant of---Unwitnessed incident---Non-conducting of test identification parade---Effect---Accused was alleged to have killed the deceased---Incident was unwitnessed---Only evidence available was that of a witness who had last seen the deceased with co-accused persons---Said witness did not state that accused also accompanied the co-accused persons---Since F.I.R. was lodged against unknown persons, it was necessary that identification test parade was held, however same was not done---Present case was doubtful and called for further inquiry---Accused was granted bail in circumstances.

Khawaja Muhammad Azeem for Applicant.

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

Date of hearing: 24th December, 2012.

2013 P Cr. L J 783

[Sindh]

Before Farooq Ali Channa, J

AMMAR YASIR ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.474 of 2010, decided on 11th February, 2013.

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

----S. 302---Qanun-e-Shahadat (10 of 1984), Art. 164---Qatl-e-amd---Appreciation of evidence---Modern devices or techniques---Scope---Court is authorized under Art. 164 of Qanun-e-Shahadat, 1984, to allow to produce evidence that may have become available because of modern devices or techniques in such cases as it may consider appropriate.

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

----S. 302(b)--- Qanun-e-Shahadat (10 of 1984), Art. 164---Qatl-e-amd--- Appreciation of evidence--- Video film--- Proof--- Belated recovery---Effect---Trial Court relied upon Close Circuit Television (CCTV) film and recovery of weapon and sentenced the accused to imprisonment for life---Validity---Mere producing of CCTV video as piece of evidence and its watching in open court was not sufficient to be relied upon unless and until corroborated and proved to be genuine---As a proof of genuineness of such CCTV video, it was incumbent upon prosecution to examine the person who recorded the video to testify the same, which requirement, prosecution failed to fulfil---Prosecution even failed to point out the source of providing CCTV video---Investigating officer who received CCTV video stated in his evidence that he received it from a person who did not want to disclose his name or identity being a man of some surveillance---Investigating officer admitted that nothing was visible and identifiable in the video as such the CCTV was not reliable piece of evidence---Recovery of weapon was effected after 6 months of the incident and 4 days after arrest of accused---Weapon along with empties recovered from place of scene was sent after 4 months and 10 months of respective recoveries to forensic division for examination and no explanation was forthcoming from prosecution as to where the empties and crime weapon remained lying for such a long period---Such evidence had no sanctity and no reliance could be placed on such recovery---Mere recovery of crime weapon was not enough proof to connect accused with commission of offence, when there was no ocular as well as circumstantial evidence---Prosecution failed to establish charge of murder of deceased against accused without any shadow of reasonable doubt---Conviction and sentence awarded to accused by Trial Court was set aside and he was acquitted of the charge---Appeal was allowed in circumstances.

Umer Farooq Khan and I.A. Hashmi for Appellant.

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

Date of hearing: 31st January, 2013.

2013 P Cr. L J 813

[Sindh]

Before Syed Muhammad Farooq Shah, J

ABDUL LATIF---Applicant

Versus

Mst. HAKIM ZADI and 2 others---Respondents

Criminal Miscellaneous Application No. S-672 and M.A. No.6620 of 2012, decided on 11th January, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B & 154---Powers of Justice of Peace to issue directions for registration of case--- Scope--- Mala fide of applicant/complainant---Non-disclosure/suppression of facts by the applicant/complainant---Ex-Officio Justice of Peace not to allow application under Ss.22-A & 22-B, Cr.P.C. in a mechanical manner and should apply his mind as to whether the applicant had approached the court with clean hands or it was tainted with malice.

Imtiaz Ahmed Cheema v. S.H.O. Police Station Daharki 2010 YLR 189 rel.

Rai Ashraf and others v. Muhammad Saleem Bhatti PLD 2010 SC 691 ref.

Tahir Shah Nawaz Khan v. State 2009 YLR 436; Syed Imtiaz Ali Shah v. State 2009 YLR 505 and Akhtar Hussain v. Abdul Waheed 2010 YLR 558 distinguished.

Sohail Ahmed Khoso for Applicant.

Anwar Ali Lohar for Respondent No.1.

Abdul Rehman Kolachi, Assistant Prosecutor-General for the State.

2013 P Cr. L J 832

[Sindh]

Before Sadiq Hussain Bhatti, J

MANZOOR ALI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-213 of 2011, decided on 22nd June, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 404 & 34---Qatl-e-amd, dishonestly receiving stolen property, common intention---Bail, grant of---Further inquiry---Unwitnessed incident---Circumstantial evidence---Implication on basis of previous dispute---Belated F.I.R.---Accused was alleged to have murdered the complainant's son and also allegedly had stolen his motorcycle---Alleged motive was dispute over a plot of land between the accused and the complainant---Contentions of one accused were that there was an unexplained delay in lodging of F.I.R.; that medical evidence did not support the ocular version of the complainant, and that there was no recovery from the accused---Validity---Alleged incident was unwitnessed and only circumstantial evidence had been advanced---Name of accused was mentioned in the belated F.I.R. on the basis of mere suspicion of previous dispute---Statement of prosecution witness who had seen the accused and co-accused armed with weapons in moonlight recorded his statement after a lapse of 10 to 12 days of the incident---Case required further inquiry in terms of S.497(2), Cr.P.C.---Accused was released on bail, in circumstances.

Khadim Hussain Soomro for Applicant.

Shahzado Saleem Nahiyoon, Assistant Prosecutor-General for the State.

Date of hearing: 21st June, 2012.

2013 P Cr. L J 860

[Sindh]

Before Naimatullah Phulpoto and Habib-ur-Rehman Shaikh, JJ

GHULAM MUSTAFA alias MUSHTAQ ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-7 of 2012, decided on 25th October, 2012.

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

----S. 9(b)---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotic---Appreciation of evidence---Benefit of doubt---Improbable occurrence---Roznamcha entries not produced---Non-association of private persons despite recovery being made from a populated place---Delay in sending samples for examination---Effect---While on patrol duty police allegedly apprehended accused near a shrine and recovered 600 grams of charas from his possession, which was packed in a plastic bag---Trial Court convicted and sentenced accused under S.9(b) of Control of Narcotic Substances Act, 1997---Accused contended that Station House Officer (SHO) demanded illegal gratification from him, and when he refused to pay, present case was registered against him; that plastic bag which contained the recovered charas was not shown as case property; that samples were sent for examination with a delay, and that no private witnesses were engaged during recovery proceedings despite the fact that large number of persons were present near the shrine---Validity---Prosecution story appeared to be unnatural and unbelievable and evidence of police officials did not inspire confidence---Original Roznamcha entries regarding departure of police for patrolling had not been produced in court---Private persons were always present at the shrine but police had made no efforts to engage private persons to act as mashirs---Police alleged that no private persons were available near the shrine, therefore, question arose that to whom the accused was selling charas, if there was no body present there---Delay of four days in sending samples for examination made the prosecution case doubtful---Prosecution's case was that one piece of charas was sent for examination, however report of Chemical Examiner stated that he had received five pieces--- Plastic bag which allegedly contained the recovered charas was not produced before the Trial Court---No reliance could be placed on evidence of police officials without independent corroboration since accused had raised a specific plea that Station House Officer (SHO) had registered present case against him because of non-payment of illegal gratification---During investigation no material was collected against accused regarding his involvement in narcotic cases---Prosecution case was doubtful---Benefit of doubt was extended to accused---Appeal was allowed and conviction of accused was set aside.

Khalil Ahmed v. The State PLD 2008 Kar. 8 and Shafiullah v. The State 2007 YLR 3087 rel.

(b) Criminal trial---

----Benefit of doubt---Scope---Single circumstance throwing doubt on the prosecution case was sufficient to discard the prosecution case.

Ghulam Ali A. Samtio for Appellant.

Muhammad Yaqoob Dahani for the State.

Date of hearing: 25th October, 2012.

2013 P Cr. L J 882

[Sindh]

Before Nadeem Akhtar, J

IMDAD HUSSAIN TUNIO---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No.S-41 of 2012, decided on 4th January, 2013.

(a) Constitution of Pakistan---

----Arts. 203-DD & 203-G---Criminal Procedure Code (V of 1898), Ss.435 & 439---Revisional jurisdiction of Federal Shariat Court---Scope---Revision application filed before High Court against an order passed under a law relating to enforcement of Hudood---Maintainability---All decisions and orders made by a criminal court under any law relating to enforcement of Hudood in respect of matters in controversy affecting rights of parties were revisable by the Federal Shariat Court under Art.203-DD of the Constitution, and not by the High Court under Ss.435 & 439, Cr.P.C.

Haji Allah Ditto v. Ishtiaque Ahmed Soomro and 10 others 1999 PCr.LJ 1996; Malook Hussain alias Maluka and 2 others v. Muhammad Nawaz and 2 others 1993 PCr.LJ 1955; Sardarullah v. The State 1998 PCr.LJ 2001 and Jaffar Khan and another v. The State 1985 PCr.LJ 2611 rel.

(b) Constitution of Pakistan---

----Arts. 203-G & 203-F---Jurisdiction of High Court and Supreme Court to interfere in matters falling within jurisdiction of Federal Shariat Court---Scope---Article 203-G of the Constitution made it clear that the High Court and Supreme Court would not have jurisdiction in respect of any matter which fell within the power or jurisdiction of the Federal Shariat Court, except the right of appeal as provided to the Supreme Court under Art.203-F of the Constitution.

Abdul Qadir Shaikh for Applicant.

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

Date of hearing: 16th October, 2012.

2013 P Cr. L J 904

[Sindh]

Before Farooq Ali Channa, J

ZAHID HUSSAIN and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.S-465, M.As. Nos.2402 and 2403 of 2012, decided on 3rd January, 2013.

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

----S. 497---Penal Code (XLV of 1860), Ss. 324, 148, 149 & 504---Attempt to commit qatl-e-amd, rioting armed with deadly weapons, unlawful assembly, intentional insult with intent to provoke breach of peace---Bail, refusal of---Medical evidence corroborating injuries---Repetition of fire-shots---Effect---Accused persons allegedly fired at the injured persons with the intention to commit their murder---Injuries were corroborated by medical evidence---Repetition of straight fire-shots prima facie showed the intention of accused persons to commit qatl-e-amd of injured witnesses---Weapons used during the occurrence were recovered from possession of accused persons, while crime empties were also recovered from place of occurrence---Prosecution case was supported by eye-witnesses of the occurrence---Affidavit submitted by one of the injured witnesses was of no consequence as it could not be given the status of evidence at bail stage---Even otherwise said witness was not the sole eyewitness of the occurrence, and the main victim had fully implicated accused persons by assigning them specific roles of causing fire-shot injuries---Medical officer had declared some of the injuries as jurh ghayr-jaifah, punishable to the extent of ten years---Prima facie reasonable grounds existed for believing that accused persons were guilty of a non-bailable offence---Bail application of accused persons was dismissed accordingly.

Ali Muhammad and others v. The State PLD 2002 Kar. 125 and Muhammad Najeeb v. The State 2009 SCMR 448 distinguished.

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

----Ss. 497, 161 & 164---Bail---Affidavits submitted by eye-witnesses---Evidentiary value at bail stage---Scope---Affidavits submitted by eye-witnesses were of no consequence during bail stage and could not be given the status of evidence, since such affidavits were not statements under S.161 or 164, Cr.P.C.

2007 YLR 1920; 2004 PCr.LJ 550; 1995 MLD 1254 and PLD 1990 SC 83 rel.

Inayatullah Morio for Applicants.

Abdul Rasheed Soomro, State Counsel for the State.

2013 P Cr. L J 924

[Sindh]

Before Syed Muhammad Farooq Shah, J

MUHAMMAD KHAN and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.S-32 of 2011, decided on 6th December, 2012.

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

----S. 17(3)---Penal Code (XLV of 1860), Ss.390 & 392---Haraabah, robbery---Appreciation of evidence---Benefit of doubt---Provision of S.392, P.P.C. had provided punishment, while the ingredients of robbery had been mentioned in S.390, P.P.C.---Both the said provisions provide that accused should have intention, not only to relieve the person of his property, but also for that purpose put the victim under wrongful restraint or cause hurt or death---No such finding of the Trial Court was available on the record---Neither the fire-arm weapon nor the hatchet in the hands of accused person had been used to cause hurt or injury on the person of complainant and his companion; they had only damaged the glasses of motorcycle---Recovered motorcycle was not identified by complainant and his companion witness; and they had failed to produce any documentary proof regarding their ownership of the robbed motorcycle---Complainant did not produce registration book of motorcycle nor was recovered by the Police---Prosecution evidence and the judgment of the Trial Court, was silent in respect of ownership of the motorcycle---Complainant had not substantiated his claim of ownership of motorcycle---Element of robbery itself was doubtful in absence of element of force, restraint or fear of injury---Alleged snatched motorcycle had been recovered on pointation of accused, who had been acquitted---Such contradictions were certainly destructive for the prosecution witnesses, particularly when animosity in between both the parties was admitted---Complainant and prosecution witness, had not supported each other with regard to denomination of Currency Notes---F.I.R. was lodged with delay---Identification of robbed properly had not been arranged---Recovery of robbed articles were not made by following the procedure prescribed in S.103, Cr.P.C. as no independent inhabitant of the locality acted as a marginal witness of memo of recovery---Trial Court had convicted and sentenced accused person without applying its mind---Reasoning of the Trial Court by which accused had been convicted and sentenced, were not convincing and confidence inspiring, and was not legally sustainable---Prosecution story did not appear to be consistent and convincing---Prosecution case being doubtful impugned judgment of the Trial Court was set aside extending benefit of doubt to accused persons, in circumstances.

Saeed alias Guldang and 2 others v. The State and others 2009 PCr.LJ 449; Rana Shabbir Hussain v. The State 2005 PCr.LJ 1599; Waseemuddin v. The State 2006 PCr.LJ 1821 and Muhammad Shahid and another v. The State 2008 YLR 288 ref.

Muhammad Shahid v. The State 2008 YLR 288 rel.

(b) Criminal trial---

----Administration of justice---Function of the Trial Court was not to push people behind the bars, which also would mean deprivation of their constitutional Fundamental Rights of freedom; and to earn livelihood for their family---Right of movement, right to earn and matrimonial relations could be suspended due to confinement of a person and his whole family would suffer.

Syed Javed, I. Bukhari for Appellants.

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

Date of hearing: 30th November, 2012.

2013 P Cr. L J 943

[Sindh]

Before Habib-ur-Rehman Shaikh, J

SABIR ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.S-84 of 2011, decided on 12th October, 2012.

Penal Code (XLV of 1860)---

----Ss. 465 & 467---Forgery, forgery of valuable security etc.---Appreciation of evidence---Accused in his statement under S.342, Cr.P.C. denied all the allegations levelled by the prosecution, but the Trial Court had not taken signature of accused on his said statement, which was mandatory requirement of S.342, Cr.P.C.---Record had further revealed that Trial Court since framing of the charge upto the statement of accused made errors and mistakes which brought the case of accused within the shadow of reasonable doubt; even the slightest doubt, if arose, would go in favour of accused---Trial Court considered the photostat copies of the disputed transfer order, Last Pay Certificate and other documents without following the mandatory law---Complainant had narrated in the F.I.R. that accused had admitted his guilt before him, but the charge framed by the Trial Court as well as the statement of accused recorded by the Trial Court, did not mention the facts regarding the admission of guilt of accused before the complainant; and no question was put by the Trial Court about the same---Prosecution had failed to establish its case against accused beyond any shadow of doubt---Impugned order was set aside, accused was acquitted and was released, in circumstances.

The State v. Nisar Ahmed Khoro and others PLD 1998 Kar. 86; Muhammad Achar Machi v. The State 2001 PCr.LJ 1762 and Nazir Ahmed and others v. The State and others PLD 2005 Kar. 18 ref.

Syed Tarique Ahmed for Appellant.

Shahzado Saleem, Assistant Prosecutor-General, Sindh for the State.

Date of hearing: 28th September, 2012.

2013 P Cr. L J 957

[Sindh]

Before Muhammad Shafi Siddiqui, J

MUHAMMAD SIDDIQUE---Applicant

Versus

IVTH ADDITIONAL SESSIONS JUDGE, HYDERABAD and 5 others---Respondents

Criminal Revision Application No.S-172 and M.A. No.7788 of 2011, decided on 12th October, 2012.

Illegal Dispossession Act (XI of 2005)---

----S. 7(1)---Possession of disputed property was handed over to complainant by way of interim relief by the Trial Court without investigating the fact of illegal dispossession---Legality---Complainant failed to show evidence of any witness who had deposed that complainant (respondent) had been illegally dispossessed---Disputed property was handed over to complainant by the Trial Court only on the basis that she was in possession of title documents, despite the fact that mandate of Illegal Dispossession Act, 2005 and that of an application under S.7(1) of the said Act, was to determine the factum of illegal dispossession---Trial Court had not discussed issue of complainant's illegal dispossession in its order---No investigation was conducted by the Station House Officer regarding issue of illegal dispossession of complainant---Accused (applicant) also claimed to be in possession of title documents of the disputed property---Impugned order of Trial Court was set aside, case was remanded to the Trial Court for conducting proper investigation regarding "illegal dispossession" of complainant and to implead accused as a party in the proceedings, if necessary, and then pass a speaking order in accordance with the law---Revision application was disposed of accordingly.

Zamin Hussain Talpur for Applicant.

Miss Nasira Shaikh for Respondent No.2.

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

2013 P Cr. L J 962

[Sindh]

Before Abdul Rasool Memon, J

Mst. AMINA and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.54 of 2007, decided on 15th February, 2013.

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

----Art. 46--- Dying declaration---Veracity, determination of---Principles---Dying declaration is a substantive piece of evidence, if court is satisfied about its genuineness, it can be acted upon without any corroboration---Some of the tests for determining its veracity are that whether it intrinsically rings true; whether there is no chance of mistake on the part of dying man in identifying or naming his assailant; whether it is free from prompting any outside quarter and whether it is consistent with other evidence and circumstances of the case.

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

----S. 161---Qanun-e-Shahadat (10 of 1984), Art. 46---Statement of deceased under S. 161, Cr.P.C. recorded subsequent to her dying declaration---Thumb-impression of deceased on such statement---Effect---Bearing thumb-impression on such statement was contrary to provision of S.161, Cr.P.C., as such affected its truthfulness and made its veracity doubtful.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 46---Criminal Procedure Code (V of 1898), S. 174-A---Qatl-e-amd---Appreciation of evidence---Dying declaration, recording of---Procedure---Delay in registration of F.I.R.---Deceased was brought to hospital in burnt condition where she died after 11 days---F.I.R. was registered two days after the incident on the statement of deceased---Trial Court convicted both the accused and sentenced them to imprisonment for life on the basis of statement of deceased alleged to be dying declaration---Validity---Both police officials did not obtain certificate from doctors before recording statement of deceased, when she was in injured condition that she was in fit condition to give statement nor they had given any reasonable explanation for such omission---Fitness of deceased to make statement termed as dying declaration remained doubtful---When deceased was brought in hospital, she disclosed to have been burnt by herself and her statement was not recorded as required under S. 174-A, Cr.P.C., whereby special obligation was imposed upon police and medical officer to act in prescribed manner as and when a person injured by burns etc. was brought before them---Delay in reporting matter to police was not explained by complainant and such delay had provided sufficient time to complainant for deliberation, consultation and fabricating story and possibility of false implication could not be ruled out---Alleged dying declaration of deceased could not meet the criteria fixed for proving prosecution case for reasons, firstly that it was not free from outside prompting; not certified by doctor about fitness of state of mind of its maker (deceased); it was not attested by Magistrate; and not consistent to other evidence produced by prosecution, thus such dying declaration was not true and voluntary---High Court set aside conviction and sentence awarded to accused by Trial Court and both the accused were acquitted of the charge---Appeal was allowed in circumstances.

Muhammad Rafique v. The State 1995 PCr.LJ 1753; Noor Muhammad v. The State 2009 PCr.LJ 797; Mst. Akhtar Begum and others v. The State 1989 MLD 798; Meera v. State of Rajasthan AIR 2004 SC 1879; Abbas v. The State 2008 MLD 854; Arvind Singh v. State of Bihar AIR 2001 SC 2124; Mst. Ghulam Zohra and another v. Malik Muhammad Sadiq and another 1997 SCMR 449 and Malik Muhammad Sadiq v. The State 1997 PCr.LJ 794 ref.

Imran Ashraf v. The State 2012 YLR 325 rel.

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

----Art. 46--- Dying declaration, recording of--- Procedure.

Abdul Razzak for Appellants.

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

Date of hearing: 18th December, 2012.

2013 P Cr. L J 1002

[Sindh]

Before Aqeel Ahmed Abbasi, J

Dr. BABAR HUSSAIN---Applicant

Versus

S.H.O., POLICE STATION CITY COURTS, KARACHI and another---Respondents

Criminal Miscellaneous Application No.323 of 2012, decided on 13th March, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 154, 155, 22-A, 22-B & 561-A---Registration of criminal case---Cognizable and non-cognizable offences---Grievance of petitioner was that Ex-Officio Justice of Peace as well as Station House Officer declined to register case against accused persons on complaint filed by him---Validity---If an offence was reported by complainant to concerned Station House Officer, it was his duty to record statement of complainant and if a cognizable offence was made out to register F.I.R. under S.154, Cr.P.C. against accused nominated therein---On receiving complaint, it was prerogative of concerned Station House Officer to form an opinion as to whether a cognizable offence was made out or not, whereas in non-cognizable cases concerned Station House Officer was not obliged to register F.I.R. and to drag persons nominated therein unnecessarily in order to avoid abuse of process of law---No prima facie cognizable offence was reported in the complaint, therefore, High Court declined to exercise any discretion under S.561-A, Cr.P.C. either to set aside order passed by Ex-Officio Justice of Peace or to issue directions to concerned Station House Officer to register F.I.R.---Application was dismissed in circumstances.

Imtiaz Ahmed Cheema, SHO v. S.H.O. Police Station Dharki, Ghotki and 2 others 2010 YLR 189; Qadar Ullah v. S.H.O. Police Station Latamber and 2 others 2012 YLR 1836; Habibullah v. Political Assistant, Dera Ghazi Khan and others 2005 SCMR 951; Syed Ali Shah v. The State 2010 MLD 1892; Nazir Ahmad v. A.S.J. and others 2011 PCr.LJ 396; Mian Abdul Waheed v. Additional Sessions Judge, Lahore 2011 PCr.LJ 438; Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 SC 691 and Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539 ref.

Fazal-ur-Rehman Awan for Applicant.

Faisal Siddiqui, Kashif Hanif, General Secretary, Karachi Bar Association for Respondents.

Ms. Rehana Akhter, A.P.-G.

Date of hearing: 7th March, 2013.

2013 P Cr. L J 1025

[Sindh]

Before Sajjad Ali Shah and Riazat Ali Sahar, JJ

MUHAMMAD USMAN---Petitioner

Versus

The STATE and 3 others---Respondents

Constitutional Petition No.D-1159 and Criminal Miscellaneous Application No.158 of 2011, decided on 25th September, 2012.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Constitution of Pakistan, Art. 199---Constitutional petition---Application for superdari of vehicle, dismissal of---Superdari of vehicle claimed on basis of being its last possessor and bona fide purchaser---Accused purchased the vehicle in question from the respondent after providing a fake pay order and subsequently sold the same to the petitioner---Police seized said vehicle in connection with an F.I.R. lodged by the respondent against the accused---Petitioner claimed superdari of vehicle on basis of being its bona fide purchaser but his claim was declined---Subsequently revision application filed by petitioner before court below was also declined and possession of vehicle was handed over to the respondent---Contentions of petitioner were that police recovered the vehicle from his possession, therefore, he came within the ambit of "last possessor" of the vehicle---Validity---Both petitioner and respondent had been apparently cheated by the accused---Registration documents of vehicle were in the name of the respondent---Petitioner did not produce copy of Computerized National Identity Card (CNIC) of accused---Important point for consideration was whether the vehicle was sold out to the petitioner by its actual owner or by an accused implicated for the offence of forgery, cheating and dishonestly inducing delivery of property and whether such an accused could sell the vehicle in such circumstances---Petitioner had stated that vehicle had been sold to him by the accused, who was implicated as an accused in the F.I.R. lodged by respondent, therefore, petitioner did not come within the ambit of bona fide purchaser---Respondent was lastly in possession of the vehicle being its legal owner by virtue of registration documents---Petitioner had failed to establish his status as a bona fide purchaser---Application for superdari of vehicle was dismissed---Constitutional petition was dismissed accordingly.

Akram Shehbaz for Petitioner.

Syed Zulfiqar Haider Shah for Respondent No.4.

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

Date of hearing: 25th September, 2012.

2013 P Cr. L J 1034

[Sindh]

Before Ahmed Ali M. Sheikh and Salahuddin Panhwar, JJ

MUHAMMAD NAWAZ alias BAJOO---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. D-855 of 2012, decided on 21st February, 2013.

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

----S. 497---Penal Code (XLV of 1860), Ss. 395, 353, 324, 302, 147 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Dacoity, assault or criminal force to deter public servant from discharge of his duty, attempt to commit qatl-e-amd, qatl-e-amd, rioting, unlawful assembly, acts of terrorism---Bail, refusal of---Specific allegation in the F.I.R.---Offence carrying capital punishment---Allegation against accused and co-accused persons was that during commission of dacoity they were encircled by police, whereafter they started firing at the police, which resulted in death of a police official--- Name of accused transpired in the F.I.R. with the specific allegation that at the time of offence he was armed with a rifle and caused direct fire shots upon the police party---Person at whose house dacoity was committed specifically nominated accused in his statement under S.161, Cr.P.C.---Accused was involved in a case of capital punishment and no sufficient material was available to make the case of accused one of further inquiry---Bail application of accused was dismissed in circumstances.

Mehram Ali v. Federation of Pakistan 1998 SCMR 1445; Badaruddin and 2 others v. The State 2007 PCr.LJ 502 and Muhammad Murad and others v. The State and others 2009 SCMR 348 distinguished.

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

----Ss. 497 & 173---Bail---Police report---Scope---Police report ipse dixit was not binding upon the court---While dealing with a bail application, court had to see the facts and circumstances of the case and if same were in negation or overwhelming upon the police report, the outcome of such report was of no help to the accused at bail stage.

Abdul Haque, G. Odho for Applicant.

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

Date of hearing: 21st February, 2013.

2013 P Cr. L J 1051

[Sindh]

Before Aftab Ahmed Gorar, J

MUHAMMAD SULEMAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-771 and M.A. No. 6111 of 2012, decided on 27th February, 2013.

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

----S. 497(2)---Penal Code (XLV of 1860), S. 161---Prevention of Corruption Act (II of 1947), S. 5(2)---Public servant taking gratification other than legal remuneration in respect of an official act, criminal misconduct---Bail, grant of---Further inquiry---Trap proceedings---Members of raiding party not seeing or hearing the accused at the time of payment of bribe---Effect---Allegation against accused (public servant) was that he demanded illegal gratification from the complainant, and after negotiations, part payment was made to accused, while remaining amount was to be paid to him at a later date---Members of trap party did not hear the conversation between the accused and the complainant party at the time when alleged illegal gratification was settled, part payment was made, and payment of remaining amount was agreed upon---Although part payment made by complainant was recovered from the accused during the raid, however it was yet to be determined whether it was the part payment of illegal gratification allegedly settled between the parties---Neither did the members of raiding party see the accused while receiving the bribe amount nor did they hear the conversation between the accused and complainant party---Offence under S.161, P.P.C. did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Case was one of further inquiry---Accused was admitted to bail in circumstances.

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

----S. 497(2)---Penal Code (XLV of 1860), S. 161---Prevention of Corruption Act (II of 1947), S. 5(2)---Bail---Trap proceedings---Public servant (accused)caught by members of a raiding party while taking a bribe/illegal gratification---Conversation between accused and complainant at the time of payment of bribe money---Scope---Where a public servant was charged for receiving a bribe, not only the payment of bribe money was to be seen but conversation between the parties had to be heard also by the members of the raiding party so as to eliminate chances of involvement of innocent persons.

Bashir Ahmad v. The State 2001 SCMR 634 rel.

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

----S. 497(1)---Bail---Offences not falling within the prohibitory clause of S.497(1), Cr.P.C.---Scope---For such offences grant of bail was a rule and refusal thereof an exception.

Kodomal and another v. The State 2001 PCr.LJ 1789; Nazar Muhammad v. The State 2003 PCr.LJ 175 and Tarique Bashir and 5 others v. The State PLD 1995 SC 34 rel.

Shakeel Ahmed Zia for Applicant.

Shahzado Saleem Nahyoon, Assistant P.-G. for the State.

2013 P Cr. L J 1082

[Sindh]

Before Farooq Ali Channa, J

SAIFAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.434 of 2010, Criminal Jail Appeals Nos.249, 250 and Criminal Appeal No. 258 of 2009, decided on 21st February, 2012.

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

----S. 395---Dacoity---Appreciation of evidence---Complainant and other eye-witness of occurrence had supported the prosecution case by giving details of incident---Both were cross-examined at length, but nothing had come on record favouring the accused persons---Contradictions in the evidence of said witnesses being minor in nature, were not fatal to prosecution case---Such contradictions were natural having come in evidence due to passage of time between the occurrence of the incident and recording of evidence---Prosecution case was supported by the identification of accused persons before the Judicial Magistrate and recovery of robbed articles---Discrepancies and legal defects in identification parade and in recovery of robbed property, in view of direct evidence on allegation of dacoity, carried no weight---Both the eye-witnesses being inmates of house where occurrence had taken place, their presence was natural and undisputed---Accused having remained at the place of occurrence for considerable time, mistake in their identification could not be inferred---Prosecution had succeeded to establish the charge of dacoity against accused persons, without any shadow of doubt---Impugned judgment of the Trial Court was not the result of misreading or non-reading of evidence, and being based upon cogent reasons, required no interference---Conviction and sentence awarded to accused persons was maintained, in circumstances.

PLD 2001 SC 546; PLD 1981 SC 142; 1995 SCMR 127; 2011 SCMR 527; 2011 SCMR 646; PLD 1962 Kar. 288; 1975 PCr.LJ 1201; 1984 SCMR 1382; 1990 SCMR 172 and 1990 SCMR 1275 ref.

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

----Art. 164---Production of evidence of modern devices---Record of Mobile Company and evidence of it's representative was admissible in terms of Art.164 of Qanun-e-Shahadat, 1984 which had provided that court could allow the production of any evidence that could have become available because of devices and techniques.

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

----S. 395---Qanun-e-Shahadat (10 of 1984), Arts.38 & 39---Dacoity---Appreciation of evidence---Benefit of doubt---Accused was implicated by one of co-accused, who disclosed his name in his statement before Investigating Officer, which statement was not admissible under Arts.38 & 39 of Qanun-e-Shahadat, 1984 and had no sanctity in the eye of law---Complainant had no enmity or reason to implicate accused---If accused was innocent, delay in identification of accused by the complainant was immaterial---Discrepancy with regard to height of accused and his identification by complainant after the lapse of more than 2-1/2 years, had created some doubt in his identity---Case of prosecution against said accused being not free from doubt, his conviction and sentence was set aside, extending him benefit of doubt---Accused was acquitted and was directed to be released, in circumstances.

Nazir Ahmed v. Muhammad Iqbal 2011 SCMR 527 and Asghar Ali's case 1992 SCMR 2088 rel.

Nasir Mehmood Mughal for Appellants.

S. Shafqat Shah Masoomi for the Complainant.

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

Date of hearing: 12th February, 2013.

2013 P Cr. L J 1105

[Sindh]

Before Abdul Rasool Memon, J

MUHAMMAD HANIF and others---Applicants

Versus

The STATE---Respondent

Criminal Bail Applications Nos.1080 of 2012 and 312 of 2013, decided on 11th April, 2013.

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

----S. 498---Penal Code (XLV of 1860), S. 302/34---Qatl-e-amd, common intention---Interim pre-arrest bail, recalling of---Common intention/object for a murderous assault---Scope---Allegation against accused persons was that they murdered the deceased---Alleged motive for the incident was a dispute over partition of a house---Plea raised by accused persons was that they had been falsely implicated in the case due to the enmity/dispute between the parties---Validity---Both parties were members of the same family and resided in the same house, therefore there was no question of mistaken identity---Specific roles were assigned to accused persons in the F.I.R.---Medical evidence supported version set up by the prosecution---Deceased, who was a young man of 45 years, was allegedly first put down on the floor in the presence of his family before being killed---Act of putting down a young man in the presence of his family did not appear to be an act of a single person, therefore, entering of all accused persons in the house of deceased indicated their common intention/object for attacking the deceased with a murderous assault---Accused persons could not be absolved of common intention and vicarious liability in such circumstances---Enmity was a double edged weapon which could be used either way, therefore, accused persons could not claim benefit of the same at bail stage---Interim pre-arrest bail granted to accused persons was recalled in circumstances.

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

----S. 498---Pre-arrest bail, right of---Scope---Right of pre-arrest bail was limited to exceptional and rare cases, which were based on mala fide/enmity or where no offence was shown to have been committed on the bare reading of the F.I.R.

Muhammad Arshad and another v. The State and another 1996 SCMR 74 rel.

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

----S. 498---Penal Code (XLV of 1860), S. 302/34---Qatl-e-amd, common intention---Interim pre-arrest bail, recalling of---Plea of alibi---Scope---Accused taking plea of alibi without bringing on record any proof or evidence---Effect---Such plea of alibi would require judicial scrutiny at trial---Interim pre-arrest bail granted to accused was recalled in circumstances.

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

----S. 498---Penal Code (XLV of 1860), S. 302/34---Juvenile Justice System Ordinance (XXII of 2000), S.10(7)---Qatl-e-amd, common intention---Interim pre-arrest bail, recalling of---Refusal of bail to a child aged 15 years or above---Scope---Accused was attributed specific role of causing death of deceased--- Plea taken by accused was that he was 16/17 years of age at the time of the occurrence, therefore, he was entitled to bail being a juvenile---Validity---Proviso to section 10(7) of Juvenile Justice System Ordinance, 2000 provided that in case of a child of 15 years or above the court might refuse to grant bail if there were reasonable grounds to believe that such child was involved in an offence which in the opinion of the court was serious, heinous, gruesome, brutal, sensational in character or shocking to public morality---Accused was attributed specific role of causing death of deceased---Accused had also admitted that he was aged about 16/17 years at the time of the occurrence, therefore, he could not get benefit of being a minor for purposes of grant of bail.

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

----S. 7---Determination of age of accused---Expert opinion---Scope---Conflict between documentary evidence regarding age of accused---School certificate showing age of accused as 14 years, whereas Municipal certificate showing his age to be 17 years---Effect---Where there was conflicting documentary evidence, then opinion of expert was necessary for determining age of accused.

Kabir Ahmed Khan Ghori for Applicants.

S. Kamran Ali for the Complainant.

Ms. Ehsand Rahat, Deputy Prosecutor-General Sindh for the State.

Date of hearing: 3rd April, 2013.

2013 P Cr. L J 1137

[Sindh]

Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ

Mst. TAHSEEN and 2 others---Appellants

Versus

NATIONAL ACCOUNTABILITY BUREAU and 5 others---Respondents

C. P. No. D-1944 of 2012, decided on 23rd April, 2013.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 15 & 25(b)---Penal Code (XLV of 1860), S. 83---Constitution of Pakistan, Art. 199---Constitutional petition---Plea bargain and conviction---Act of child---Disqualification to contest election---Principal accused purchased properties in the names of petitioners who were his sons and were minors at the time of purchase---Both petitioners entered into plea bargaining and surrendered properties in question---Trial Court as the time of approval of plea bargaining imposed conviction upon both the petitioners as provided under S.15 of National Accountability Ordinance, 1999---Validity---Ages of petitioners were to be counted from the day when offence was committed and not when it was compounded and or plea bargain was accepted---On the day when alleged offence was committed, ages of petitioners were less than 10 and 12 years respectively---Petitioners, even if had committed any offence, were entitled to benefit of immature understating---Nothing was available on record to show that petitioners themselves committed offence of corruption and corrupt practices as they were of very tender ages and had no knowledge or understanding of corruption or corrupt practices committed by their father, might it be for their benefits---Bar of disqualification for a period of 21 years through order in terms of S.15 of National Accountability Ordinance, 1999, for seeking or from being elected, chosen, appointed or nominated as member or representative of any public office or any statutory or local authority of Government of Pakistan would not apply to petitioners---Petition was allowed accordingly.

Muhammad Ayaz alias Cheena and others v. The State PLD 2004 Kar. 652 ref.

Muhammad Anwar Tariq along with Mureed Ali Shah for Petitioners.

Noor Muhammad Dayo, ADGP NAB for Respondents Nos.1 and 2.

Sadaqat Khan Awan, Standing Counsel for Respondents Nos.3 to 6.

Date of hearing: 12th March, 2013.

2013 P Cr. L J 1155

[Sindh]

Before Farooq Ali Channa, J

ARBELO and 2 others---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.S-321 and M.A. No.1784 of 2012, decided on 7th January, 2013.

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

----S. 497---Bail, right of---Scope---Case of counter-versions---Plea was that bail should be allowed in every case which had a counter-version---Validity---Rule that bail must be granted in every case of counter-version was not a hard and fast rule, and each case had to be examined on its own facts and circumstances.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 147, 148, 149---Qatl-e-amd, attempt to commit qatl-e-amd, rioting, rioting armed with deadly weapons, unlawful assembly---Bail, refusal of---Case of cross-versions---Grant of bail on plea of cross-version F.I.R.---Scope---Implication in F.I.R. with specific allegations---Recovery of weapon from accused---Effect---Accused persons while armed with weapons allegedly entered house of complainant and murdered the deceased persons and causing injuries to several persons---Motive for the occurrence was due to enmity over property---Contention of accused persons was that occurrence consisted of two versions; that a cross-version F.I.R. had been lodged against the complainant party, therefore, it was yet to be seen as to which part was the aggressor, and that one of the accused specifically nominated for committing murder was let off by the police during investigation---Validity---Cross-version F.I.R. lodged by accused side mentioned that incident took place near house of complainant party, and even otherwise said F.I.R. was lodged a day after the present F.I.R. lodged by complainant party---Such circumstances showed that occurrence as reported in cross-version might have taken place in retaliation of occurrence as reported in present F.I.R.---Question of counter-version would be decided after examination of prosecution witnesses during trial---Plea of counter version raised by accused side could not form basis for grant of bail in such circumstances---Letting off of one of the accused during investigation would not damage the prosecution case against the remaining accused, rather it made the investigation fair---Accused persons were nominated in the F.I.R. with specific role attributed to each one of them---Prosecution witnesses also supported the contents of F.I.R. making specific allegations against the accused---Presence of witnesses at the time and place of occurrence was proved due the injuries sustained by them---Weapons were recovered from possession of accused and empties had also been secured from the place of incident---Motive for the alleged occurrence was not denied by the accused---Offence alleged was punishable with death or imprisonment for life as such no case for bail was made out---Bail application of accused persons were refused accordingly.

1984 SCMR 600; 1996 SCMR 1845; 2002 PCr.LJ 1051; 2008 SCMR 1448; PLD 2009 SC 58; 2011 SCMR 606; 1983 SCMR 278; 1992 SCMR 501; 1997 MLD 2071; 2004 PCr.LJ 127 and 2006 YLR 3053 ref.

Muhammad Iqbal Mahar for Applicants.

Habibullah G. Ghouri and Muhammad Murad Chachar for the Complainant.

Abdul Rasheed Soomro, State Counsel.

Date of hearing: 7th January, 2013.

2013 P Cr. L J 1162

[Sindh]

Before Muhammad Tasnim, J

NAIMAT KHAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 567 of 2012, decided on 27th August, 2012.

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

----S. 497(1) [as amended by S. 3 of Code of Criminal Procedure (Amendment) Act (VIII of 2011)]---Bail---Delay in trial---Scope---Accused has been given independent right for grant of bail on the ground of statutory delay, subject to certain conditions provided therein.

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

----S. 497(1) [as amended by S. 3 of Code of Criminal Procedure (Amendment) Act (VIII of 2011)]---Delay in trial---Grant or refusal of bail---Principles---Right of accused to get bail under amended S.497, Cr.P.C. is not left to discretion of court but is controlled by that provision---Bail under newly-added proviso under S.497, Cr.P.C. can be refused to accused by court, only on the ground that delay in conclusion of trial occasioned on account of act or omission on the part of accused or any person acting on his behalf---Bail under amended provision can also be refused by court, if accused is previously convicted offender for offence punishable with death or imprisonment for life or to a person who, in the opinion of court is accused of act of terrorism punishable with death or imprisonment for life.

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

----S. 497(1) [as amended by S. 3 of Code of Criminal Procedure (Amendment) Act (VIII of 2011)]---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd and common intention---Bail, grant of---Delay in trial---More than two years had passed and accused was in custody ever since; there were in all sixteen prosecution witnesses, out of which only three had been examined and thirteen were to be examined---Accused had sought bail on statutory delay---Validity---Case of accused was fully covered under newly-added proviso to S.497, Cr.P.C. and he was entitled to bail on the ground of statutory delay---Bail was allowed in circumstances.

Nazir Hussain v. Ziaul Haq and others 1983 SCMR 72; Zahid Hussain Shah v. The State PLD 1995 SC 49 and Syed Maqsood Ahmed v. The State and others C.P. No. 620-K of 2011 dated 11-8-2011 fol.

Hassan v. The State PLD 1996 Kar. 487; Muhammad Siddique v. Muhammad Behram and another 1998 PCr.LJ 358; Abdullah v. The State and another 1985 SCMR 1509; Shabeer v. The State 2012 SCMR 354; Irfan Yaqoob v. The State SBLR 2011 Sindh 1205; Jamsheed Ali v. The State 2012 PCr.LJ 1022; Ghulam Abbas alias Abasi and another's case PLD 2005 Kar. 255; Riasat Ali and another v. The State PLD 1977 SC 480; Sher Zaman v. Muhammad Azad and another 1978 SCMR 248; Abdul Hameed and others v. The State 2003 MLD 19; Mueen Aftab Shaikh v. The State through FIA Karachi PLD 2012 Sindh 261; Taj Muhammad and another v. The State 2011 PCr.LJ 1910 and Syed Maqsood Ahmed v. The State and others C.P. No. 620-K of 2011 dated 11-8-2011 ref.

Abdur Rashid v. The State 1998 SCMR 897 and Ashiq Hussain and others v. The State 1989 SCMR 1580 distinguished.

Muhammad Ashraf Kazi for Applicant.

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

Mahmood A. Qureshi for the Complainant.

Date of hearing: 15th August, 2012.

2013 P Cr. L J 1185

[Sindh]

Before Naimatullah Phulpoto and Farooq Ali Channa, JJ

ABDUL GHAFOOR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-64 of 2009, decided on 29th November, 2012.

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

----Ss. 9(b) & 21---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4(2)---Possession of narcotic, entry, search, seizure and arrest without warrants---Appreciation of evidence---Non-production of Roznamcha entries---Raid conducted without obtaining search warrants---Delay in sending samples for examination---Non-examination of material prosecution witnesses---Effect---Complainant (police official) allegedly conducted a raid at quarter of accused and recovered weapons and charas weighing 1000 grams---Two separate F.I.Rs. were registered against accused, one for recovery of weapons and the other for recovered charas---Both cases were tried by separate courts---Accused was acquitted from the case for recovery of weapons, however he was convicted and sentenced for the allegedly recovered charas under S.9(b) of Control of Narcotic Substances Act, 1997---Validity---Prosecution did not produce the copy of Roznamcha entry of leaving the police station for conducting raid at the quarter of accused---Complainant/police official failed to obtain search warrants for conducting the raid---Police party had prior information before leaving for conducting the alleged raid, therefore, search warrants could have been obtained as required under S.21 of Control of Narcotic Substances Act, 1997---Samples were sent to Chemical Examiner with a delay of about 22 days, for which no plausible explanation was given by the prosecution---Prosecution also failed to examine the police official, who headed the raiding party and remained at the place of incident till recovery was effected---Recovery of weapons and charas was made under the same mashirnama, however accused was acquitted from the case for recovery of weapons but was convicted for the case of recovery of charas---Although where joint recovery under the same mashirnama was tried by two competent courts, the findings of one Trial Court were not binding on the other, however in view of the conflicting opinions of two competent courts in respect of the same document, a doubt had been created---Prosecution case was not free from doubt---Appeal was allowed, conviction and sentence awarded to accused was set aside and he was acquitted from the charge.

Aijaz Ali v. State 2001 YLR 1493; Qalandro alias Nazro v. State 1997 MLD 1632 and State through A.G. Sindh v. Hemjoo 2003 SCMR 881 rel.

(b) Criminal trial---

----Acquittal---Benefit of doubt---Scope---For acquitting the accused from the charge, it was not necessary that there should be many circumstances creating doubt, but slightest doubt in the prosecution case was sufficient for such purpose.

Akbar Ali H. Dahar for Appellant.

Abdul Rasheed Soomro, State counsel for the State.

Date of hearing: 29th November, 2012.

2013 P Cr. L J 1203

[Sindh]

Before Ahmed Ali M. Shaikh and Naimatullah Phulpoto, JJ

ASGHAR alias GHORO---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.D-76 of 2011, decided on 22nd October, 2012.

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

----S. 497---Penal Code (XLV of 1860), Ss. 365-A, 215 & 34---Kidnapping or abduction for extorting property, valuable security etc., taking gift to help to recover stolen property, common intention---Bail, refusal of---Accused and co-accused persons had allegedly kidnapped complainant's father (abductee) for ransom---Accused contended that some of the co-accused had been acquitted by the Trial Court under S.265-K, Cr.P.C. while another co-accused had been granted bail---Validity---Complainant fully implicated the accused in the F.I.R.---Abductee and a prosecution witness also implicated the accused in their statements under S.161, Cr.P.C.---Record showed that abductee was recovered from possession of accused---Although some of the co-accused persons had been acquitted by the Trial Court but without examination of prosecution witnesses, therefore benefit of same could not be extended to the accused--- Although accused contended that one of the co-accused had been granted bail but copy of such bail granting order had not been annexed with the present bail application, therefore, accused could not claim grant of bail on rule of consistency---Huge material was available on record against accused to prima facie connect him with the commission of the offence---Delay in lodging of F.I.R. was no ground for grant of bail and even otherwise such delay in the present case had been explained---Bail application of accused was dismissed in circumstances.

Akram alias Akroo v. The State 2012 PCr.LJ 1132 rel.

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

----S. 365-A---Kidnapping or abduction for extorting property, valuable security etc.---Vicarious liability---Scope---Under S.365-A, P.P.C., every member of a gang which kidnaps a person is equally and vicariously liable for the offence.

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

----Ss. 265-K & 497--- Bail--- Acquittal of co-accused---Effect---Acquittal of a co-accused under S.265-K, Cr.P.C. would not be sufficient to make the accused entitled for bail on such ground alone.

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

----S. 265-K---Power of Court to acquit accused at any stage---Scope---Court cannot deprive prosecution of opportunity to produce evidence under the garb of S.265-K, Cr.P.C.---Power under said section can only be invoked in cases wherein no probability of convicting the accused existed.

Zulfiqar Ali Naich for Applicant.

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

2013 P Cr. L J 1226

[Sindh]

Before Naimatullah Phulpoto, J

MUNAWAR ALI SHEIKH---Applicant

Versus

DISTRICT AND SESSIONS JUDGE LARKANA and 3 others---Respondents

Criminal Miscellaneous Application No.201 of 2012, decided on 3rd December, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B & 154---Powers of Justice of Peace to issue directions for registration of F.I.R.--- Scope--- Malice of complainant/applicant--- Dispute of civil nature--- Effect--- Proposed accused allegedly injured the complainant party and issued threats due to a dispute between the parties over construction upon a common street---Complainant filed an application before Justice of Peace, who disposed of the said application by observing that complainant was advised to appear before the concerned Station House Officer, who would take his statement and if from the statement any cognizable offence was made out, then same should be incorporated in S.154, Cr.P.C. book---Legality---Justice of Peace had jurisdiction to examine whether information disclosed by applicant/complainant did or did not constitute a cognizable offence and if it did, then to direct concerned Station House Officer (SHO) to record an F.I.R. in S.154, Cr.P.C. book---Such exercise was not completed by the Justice of Peace in the present case as he simply stated in his order that applicant/complainant was advised to approach concerned Station House Officer (SHO), who shall record his statement if cognizable offence was made out---Justice of Peace was not supposed to delegate his authority to the Station House Officer in such a casual manner---Before complainant filed application before Justice of Peace, accused had moved an application to the concerned Metropolitan Corporation, stating therein that complainant had encroached upon common property and raised construction on it---Complainant had also filed a harassment application against accused and others---Such conduct of complainant reflected that his application filed before Justice of Peace was tainted with malice---Both parties were next-door neighbours and relatives---Such aspect of the case was not considered by the Justice of Peace---Civil dispute could only be adjudicated by competent civil court and same could not be converted into a criminal case---Directions given to concerned Station House Officer (SHO) by Justice of Peace were in excess of jurisdiction conferred upon him under the law--- Application was allowed in circumstances and impugned order of Justice of Peace was set aside.

Dost Muhammad v. The State 2011 PCr.LJ 1563; Imtiaz Ahmad Cheema v. S.H.O. Police Station Dharki 2010 YLR 189; Rai Ashraf v. Muhammad Saleem Bhatti PLD 2010 SC 691 and Ghulam Sarwar v. SHO PS Veehar 2012 YLR 2775 rel.

Shamsuddin Abbasi for Applicant.

Naimatullah Bhurgri, State counsel.

Mubashir Ali Solangi for the Complainant.

Date of hearing: 3rd December, 2012.

2013 P Cr. L J 1237

[Sindh]

Before Naimatullah Phulpoto and Farooq Ali Channa, JJ

FIDA HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-34 of 2011, decided on 19th December, 2012.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotic---Appreciation of evidence---Benefit of doubt---Case of spy information---Non-association of private witnesses---Delay in sending samples for examination---Report of Chemical Examiner not produced in evidence---Effect---Police allegedly received spy information that accused, who was also wanted in connection with some other F.I.Rs., was selling charas at a certain location, whereafter police apprehended accused and found 1100 grams of charas in his possession---Trial Court convicted and sentenced accused under S.9(c) of Control of Narcotic Substances Act, 1997---Validity---Admittedly present case was one of spy information and police had advance information, but despite such fact persons from the locality were not associated to act as mashirs---Entry of spy information was not made in Roznamcha---Police allegedly left police station to arrest accused in connection with some other F.I.Rs., but copies of such F.I.Rs. were not brought on record in order to establish that police actually left the station to arrest the accused---Complainant and investigating officer did not mention in their evidence that they sent recovered charas for analysis---Perusal of chemical report revealed that charas had been sent to Chemical Examiner after 13 days of its alleged recovery, for which no plausible explanation was furnished---Record revealed contradictions with regard to mode of recovery---Appeal was allowed, benefit of doubt was extended to accused and he was acquitted of the charge.

(b) Criminal trial---

----Benefit of doubt---Scope---Benefit of slightest doubt in the prosecution case would go to the accused.

Asif Ali Abdul Razzak Soomro for Appellant.

Naimatullah Bhurgri, State counsel.

Date of hearing: 19th December, 2012.

2013 P Cr. L J 1259

[Sindh]

Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ

QAISER BALOCH and 3 others---Applicants

Versus

The STATE---Respondent

Criminal Revision Application No. 225 of 2012, decided on 31st January, 2013.

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

----Ss. 23 & 6(n)---Penal Code (XLV of 1860), Ss. 324, 353, 186, 34---Application for transfer of case from Anti-Terrorism Court to Sessions Court, dismissal of---Act of terrorism---Serious violence against members of the police force---Scope---Accused persons had fired upon a police party with automatic weapons in order to deter them from discharging their official duty---Accused persons submitted an application under S.23 of Anti-Terrorism Act, 1997 before the Anti-Terrorism Court for transfer of case to an ordinary court, however the same was rejected on the basis that it was not essential that police party received injuries during the occurrence but it was enough that they were intimidated from doing their public duty and were refrained from discharging their lawful duties---Validity---Record showed that accused persons had fired upon the police party and deterred them from discharging their official duties---Empties of automatic weapons used by accused persons were recovered from the place of occurrence---Act of accused clearly showed serious violence against members of police force and created terror in the area---Offence clearly fell under S.6(n) of Anti-Terrorism Act, 1997---Anti-Terrorism Court had rightly rejected application of accused persons for transfer of case---Revision petition was dismissed accordingly.

Nadim Butt v. Special Court Anti-Terrorism Lahore and others 2000 SCMR 1086 rel.

Jan Muhammad Naich for Applicants.

Muntazir Mehdi, A.P.-G. along with Inspector Athar Malik for the State.

2013 P Cr. L J 1279

[Sindh]

Before Naimatullah Phulpoto, J

WAQAR and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.63 of 2012, decided on 22nd October, 2012.

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

----Ss. 324, 353 & 34---Pakistan Arms Ordinance (XX of 1965), S.13-D---Qanun-e-Shahadat (10 of 1984), Art. 133---Constitution of Pakistan, Art. 10-A--- Attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possession of illegal weapons---Appreciation of evidence---Unrepresented accused---Cross-examination conducted by accused himself---Effect---Accused persons had allegedly fired at a police party with the intention to kill, however they were subsequently arrested and found in possession of unlicensed weapons--- Trial Court convicted accused persons under Ss.324, 353 & 34, P.P.C., despite the fact that they were not represented by a defence counsel and conducted cross-examination of some of the witnesses themselves---Validity---Prosecution witnesses were not cross-examined on account of non-representation of accused persons by a defence counsel, therefore, evidence so recorded could be of no significance and conviction could not safely be based on basis of such evidence---Injustice was likely to occur where cross-examination of prosecution witnesses was not conducted by an advocate for the accused---Trial Court asked accused persons to cross-examine experienced police officials for which they obviously did not have the requisite experience---Such procedure adopted by Trial Court was reflective of miscarriage of justice---Appeal was allowed, conviction and sentence recorded by Trial Court were set aside and case was remanded back to the Trial Court with the direction to give the accused persons a fair opportunity to engage an advocate for cross-examination of prosecution witnesses.

Abdul Ghafoor v. The State 2011 SCMR 23 rel.

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

----Art. 133---Unrepresented accused---Cross-examination conducted by accused himself---Effect---Cross-examination conducted by accused himself could not be considered to be a substitute of cross-examination conducted by a counsel.

Najamuddin Dharejo for Appellants.

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

Date of hearing: 22nd October, 2012.

2013 P Cr. L J 1308

[Sindh]

Before Shahid Anwar Bajwa and Aftab Ahmed Gorar, JJ

MUHAMMAD FARAZ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.30 of 2011, decided on 14th September, 2012.

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

----S. 9(c)---Possessing and trafficking of narcotics---Appreciation of evidence---Accused who was driving bus in question, would be held to be presumed to be in possession of narcotic substance hidden in secret cavities of the bus---No legal prohibition existed for Police Official to be a complainant, if he was a witness to the commission of offence and also to be an Investigating Officer as long as it would not in any way, prejudice the accused---No prejudice had been shown on record to have been caused to the accused---No question regarding driving licence was asked in the case; and it was not even suggested that there was no secret cavities in the bus, in question---Counsel for accused had not been able to point out any contradiction between evidence of Mashir and evidence of complainant---Accused had been proved guilty through evidence produced before the Trial Court---Counsel also had failed to point out any piece of evidence, which could create doubt in the story of prosecution, or any illegality in the impugned order passed by the Trial Court whereby accused was convicted and sentenced---Appeal was dismissed.

Warner v. Metropolitan Police Commissioner ([1969] 2 A.C. 256); Muhammad Noor and others v. The State 2010 SCMR 927; Nazeer Ahmed v. The State PLD 2009 Kar. 191; State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408; Akhtar Hussain Shah v. The State 1999 PCr.LJ 225; Naqeebullah and another v. The State 2002 MLD 253; Mazhar Hussain Naqvi v. Dr. Zafar H. Zaidi, Vice-Chancellor, Karachi University, Karachi PLD 2001 Kar. 269 and Qaisarullah and others v. The State 2009 SCMR 579 distinguished.

Gul Badshah v. The State 2011 SCMR 984 and Ghulam Qadir v. The State PLD 2006 SC 61 rel.

Arshad Riaz Mughal for Appellant.

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

Date of hearing: 6th September, 2012.

2013 P Cr. L J 1331

[Sindh]

Before Salahuddin Panhwar, J

The STATE---Applicant

Versus

AIJAZ alias FOUJI LASHARI and others---Respondents

Criminal Bail Application No.S-435 of 2011, decided on 10th September, 2012.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302/34 & 506---Qatl-e-amd, common intention, criminal intimidation---Bail, refusal of---Bail sought on statutory grounds of delay in conclusion of trial---Change of counsel by accused on various occasions without justification---Effect---Accused was alleged to have caused a dagger blow on the chest of the deceased---Accused contended that he was a poor person and could not engage a counsel and that he was behind bars since the year 2007, therefore, he was entitled to bail on grounds of delay in conclusion of his trial---Validity---Occurrence was a day time incident and ocular evidence in shape of eye-witnesses was available against the accused---Specific role of causing dagger blow on the best of deceased had been assigned to the accused, which was affirmed by the medical report---Medical report showed that injury caused on the chest was fatal injury---Reasonable grounds existed to believe that accused had committed an offence falling within the prohibitory clause of S.497, Cr.P.C. therefore, accused was not entitled to bail on merits---Regarding bail on statutory grounds accused had changed his counsel on various occasions without any justification only to linger on the case---Accused by design had caused delay in conclusion of his trial, therefore, he had failed to make out a case for bail on statutory grounds---Bail application of accused was dismissed with direction to Trial Court to provide counsel to accused, if he was unable to engage one.

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

----S. 497---Bail sought on statutory grounds---Delay in conclusion of trial---Conduct of accused---Scope---Conduct of accused was to be seen if he had taken the ground of statutory delay, while deciding bail on statutory ground, such as whether delay was by design by adopting various methods---If the court reached the conclusion from any source that delay was designed by the accused, then bail should not be granted even on grounds of statutory delay.

1999 PLD SC 504 rel.

(c) Constitution of Pakistan---

----Art. 10A---High Court (Lahore) Rules and Orders Vol.III, Ch.24, Part C, Paras 1 & 2---Criminal trial---Case carrying capital punishment---Right of complainant and accused to "fair trial" and "due process"---Scope---Providing counsel to a pauper accused for conclusion of trial in reasonable time---Every case which provided capital punishment should be proceeded in presence of counsel of accused, but on such proposition case could not be delayed for indefinite period if the accused was pauper and unable to engage counsel---Law permitted court to provide counsel on State expense and conclude the trial---Trial must be conducted by providing complete opportunity of "fair trial" and "due process" as enshrined in Art.10A of the Constitution but no person could be allowed to get undue advantage of such rights because it was also the fundamental right of the complainant to see the fate of his case on the same principle of "fair trial" and "due process" by conclusion of his case within a reasonable time.

Applicant in person in custody.

Moohan Lal, Assistant Prosecutor-General for the State.

Date of hearing: 10th September, 2012.

2013 P Cr. L J 1365

[Sindh]

Before Aftab Ahmed Gorar, J

KHAN MUHAMMAD and another---Applicants

Versus

CIVIL JUDGE AND JUDICIAL MAGISTRATE-II, TANDO MUHAMMAD KHAN and 3 others---Respondents

Criminal Miscellaneous Application No.S-491 and M.A. No.5537 of 2012, decided on 1st February, 2013.

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

----S. 145---Dispute concerning land likely to cause breach of peace---Power of Magistrate under S.145, Cr.P.C.---Purpose---Section 145, Cr.P.C. conferred powers upon the Magistrate to take preventive measures to ward off endangered disruption and maintain peace and tranquillity.

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

----S. 145---Dispute concerning land likely to cause breach of peace---Exercise of jurisdiction by Magistrate under S.145, Cr.P.C.---Scope ---For purposes of exercising jurisdiction under S.145, Cr.P.C. there should be a dispute likely to cause breach of peace.

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

----S. 145---Dispute concerning land likely to cause breach of peace---Magistrate handing over possession of disputed property in exercise of jurisdiction under S.145, Cr.P.C.---Prerequisites---Before passing an order under S.145, Cr.P.C., the Magistrate had to satisfy himself that the dispute between the parties was likely to cause breach of peace and for such satisfaction, he had to record evidence of the parties and without referring to the merits or claims of the parties as to right to possess, he should hear the parties and proceed with the matter in accordance with law---Magistrate should pursue statements of parties, hear the parties and receive all such evidence as might be produced by the parties respectively and take further evidence if necessary and then decide question of possession and treat the party so dispossessed to be in possession of subject property.

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

----S. 145---Dispute concerning land likely to cause breach of peace---Magistrate handing over possession of disputed property in exercise of jurisdiction under S.145, Cr.P.C. without recording evidence of both parties---Effect---Order of Magistrate was set aside and matter was remanded to the Magistrate with directions to afford ample opportunity to the parties, record their evidence, if necessary record further evidence and after hearing the parties, pass speaking order afresh in accordance with law.

??????????? Muhammad Arshad Pathan for Applicants.

??????????? Irfan Qureshi for Respondent No.3.

??????????? Shahzado Saleem Nahyoon Assistant P.-G.

??????????? Date of hearing: 21st January, 2013.

2013 P Cr. L J 1387

[Sindh]

Before Aftab Ahmed Gorar, J

ALLAH BACHAYO alias BACHOO---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-1029 of 2012, decided on 25th February, 2013.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 114, 34 & 504---Qatl-e-amd, attempt to commit qatl-e-amd, abettor present when offence is committed, common intention, intentional insult with intent to provoke breach of peace---Bail, refusal of---Specific allegation in F.I.R.---Recovery of weapon at pointation of accused---Recovery of crime empties---Medical evidence corroborating ocular account---Effect---Accused allegedly fired at the deceased during the occurrence, which resulted in his death---Plea of accused that a cross-version F.I.R. for the same incident was also recorded, therefore, he should be granted bail---Validity---Registration of a cross case was no ground for bail as every case was to be decided on its own merits---Accused was named in the F.I.R. with specific role of causing firearm injury to the deceased---Accused was the only person who was alleged to have made firing during the occurrence---Crime weapon used for the offence was recovered on pointation of accused from his house---Empty cartridges were also recovered from place of incident---Prosecution witnesses in their statements under S.161, Cr.P.C. also supported the prosecution case---Firearm injury on body of deceased was corroborated by his post mortem report---According to tentative assessment of evidence, sufficient material was available on record to connect accused with commission of the offence---Bail application was dismissed in circumstances.

Arif Din v. Amil Khan and another 2005 SCMR 1402 and Munawar Ali v. The State 2005 YLR 1514 rel.

Abdul Hameed v. Zahid Hussain alias Papu Chaman Patiwala and others 2011 SCMR 606 and Qadir Bux v. The State 2011 MLD 908 distinguished.

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

----S. 497---Bail---Grounds---Existence of cross-version F.I.R.---Mere existence of a cross-case was no ground for grant of bail as every case was to be decided on its own merits.

Arif Din v. Amil Khan and another 2005 SCMR 1402 rel.

Zainul Abdin Mirza for Applicant.

Ghulamullah Chang for the Complainant.

Shahzado Saleem Nahyoon, Assistant P.-G. for the State.

2013 P Cr. L J 1398

[Sindh]

Before Aftab Ahmed Gorar, J

ANWAR KHATAB and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.510 of 2010, decided on 5th December, 2012.

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

----Ss. 324, 337-F(i) & 337-F(ii)--- Attempt to commit qatl-e-amd, ghayr-jaifah-damiyah, ghayr jaifah-badiah--- Appreciation of evidence---Medical evidence corroborating the ocular account---Motive for the crime established---Interested defence witness---Evidence of defence witness unreliable---Effect---Accused persons allegedly attacked the complainant party with knifes and tokas---Trial Court convicted and sentenced accused persons under Ss.324, 337-F(i) & 337-F(ii), P,P.C.---Eye-witnesses who received injuries at the hands of accused persons categorically deposed that knife and toka injuries were inflicted upon them---One of the injured persons received injuries on the right side of his chest i. e. vital part of the body---During cross-examination testimony of said eye-witnesses could not be shaken---Minor discrepancies in evidence of eye-witnesses could be ignored---Accused persons claimed that they also received injuries during the occurrence and for that purpose a defence witness appeared on their behalf---Defence witness was an interested witness and gave evidence at the instance of accused persons---Said witness was approached by accused persons to give evidence on their behalf---Defence witness claimed to have seen the incident but strangely he did not know as to on which part of the body the accused persons sustained injuries---Evidence of defence witness could not be said to be trustworthy, voluntary and impartial in such circumstances---Medical evidence corroborated the ocular account---Accused persons had a strong motive to commit the alleged offence as there was rivalry between both parties---Prosecution had proved its case beyond any reasonable doubt---Appeal was dismissed in circumstances.

(b) Criminal trial---

----Evidence---Contradictions in evidence of witnesses---Scope---Mere discrepancies in details of facts did not amount to contradictions in evidence---Contradiction meant the negation of prosecution version.

PLD 2005 Pesh. 166 and PLD 1993 FSC 25 rel.

Choudhry Muhammad Aslam for Appellants.

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

Complainant in person.

Date of hearing: 26th November, 2012.

2013 P Cr. L J 1406

[Sindh]

Before Farooq Ali Channa, J

SULEMAN alias SALOO---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.235 of 2008, decided on 8th March, 2013.

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

---Ss. 302(c), 302(6), 304 & 306---Qatl-e-amd---Appreciation of evidence--- Sentence, enhancement of--- Enhancement of diyat amount---Conversion of conviction under S.302(c), P.P.C. into 302(b), P.P.C.-Conviction and sentence under S.302(c), P.P.C.-Scope-Accused was alleged to have murdered the deceased---Trial Court convicted accused under S.302(c), P.P.C. and sentenced him to 25 years' imprisonment and also directed him to pay Diyat of Rs. 275,762 to the legal heirs of deceased---Prosecution witnesses were in consonance with each other on each aspect of the case---One of the prosecution witnesses, who saw the incident had no relationship with the complainant or accused party, as such he was an independent and natural witness---Presence of said prosecution witness at the place of occurrence was natural---Defence had not proved any reliable motive or enmity of complainant party to falsely implicate the accused---Occurrence took place in broad day light, as such there was no question of mistaken identity of accused, who was known to each of the prosecution witnesses---Ocular testimony was corroborated by medical evidence---Trial Court had convicted the accused on basis of unimpeachable and unshaken evidence, however while doing so it ignored the fact that S.302(c), P.P.C. applied only to those cases, where punishment of Qisas was not applicable---Evidence in the present case was neither brought on record as required under S.304, P.P.C., nor the case fell within the ambit of S.306, P.P.C., therefore the accused could not be convicted under S.302(c), P.P.C.---Conviction of accused under S.302(c), P.P.C. in such circumstances was modified into S.302(b), P.P.C. and his sentence of 25 years' imprisonment was converted into imprisonment for life as Ta'azir---Diyat amount was also enhanced to Rs. 300, 000---Appeal was dismissed accordingly.

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

----Ss. 302(a) & 304---Qatl-e-amd punishable with death as Qisas--Conviction and sentence under S.302(a), P.P.C.---Scope---Where evidence as envisaged under S.304, P.P.C. was proved, the accused should be punished under S.302(a), P.P.C. and sentenced to Qisas.

(c) Penal Code (XLV of 1860)-

----Ss. 302(b) & 304---Qatl-e-amd punishable with death or life imprisonment as Ta'azir---Conviction and sentence under S.302(b), P.P.C.---Scope---Where unimpeachable and confidence-inspiring evidence had been brought on record to prove charge of Qatl-e-amd but it did not fulfill the conditions laid down under S.304, P.P.C., the accused might be convicted under S.302(b), P.P.C. and sentenced for Ta'zir.

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

----Ss. 302(c), 304 & 306---Qatl-e-amd punishable with imprisonment for a term which may extend to 25 years, where punishment of Qisas was not applicable---Conviction and sentence under S.302(c), P.P.C.---Scope---Where evidence fulfilling the requirements of S.304, P.P.C. had been brought on record, but sentence of Qisas could not be applied/enforced because of bar imposed under S.306, P.P.C., the accused should be convicted under S.302(c), P.P.C. and sentenced accordingly.

Hakim Ali Shaikh for Appellant.

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

Dates of hearing: 21st February and 8th March, 2013.

2013 P Cr. L J 1418

[Sindh]

Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ

Sheikh SHAFI-UD-DIN QURESHI and 2 others---Petitioners

Versus

MUHAMMAD SAALIM SHAHEEDI and 2 others---Respondents

Constitutional Petition No.D-4576 of 2012 and M.A. No.10 of 2013, decided on 12th April, 2013.

Penal Code (XLV of 1860)---

----Ss. 430 & 34---Sindh Rented Premises Ordinance (XVII of 1979), S.11---Criminal Procedure Code (V of 1898), Ss. 154 & 561-A---Constitution of Pakistan, Art. 199---Mischief by injury to works of irrigation or by wrongfully diverting water, common intention, discontinuance of amenities and services by landlord---Constitutional petition---Quashing of F. I. R. ---Dispute between landlord and tenant converted into a criminal case---Accused-landlord was alleged to have disconnected water, gas and electricity connection of his tenant­ complainant---Dispute between landlord and tenant was admitted in the F.I.R.---Section 11 of Sindh Rented Premises Ordinance, 1979 provided a mechanism to deal with a situation where there was discontinuance of amenities and services by a landlord---Property in question exclusively belonged to the landlord, therefore, he could not be charged under S. 430, P.P.C. for committing mischief in respect of his own property---Even if prosecution case was admitted, no offence under S.430, P.P.C. could be proved, therefore, proceedings under the said section would be an abuse of process of law---Impugned F.I.R. was quashed in circumstances and proceedings pending on the basis thereof were quashed---Constitutional petition was allowed accordingly.

Ms. Farah Saleem for Petitioners.

Khadim Hussain Khuharo, Deputy Prosecutor-General Sindh for the State.

Sohail Abdul Rahim for Respondent No.1.

2013 P Cr. L J 1424

[Sindh]

Before Shahid Anwar Bajwa, J

ALI MURTAZA and 2 others---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.424 of 2011, decided on 6th February, 2012.

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

----S. 498--- Penal Code (XLV of 1860), Ss. 365-B, 496-A, 457, 392 & 34---Kidnapping, abducting or inducing woman to compel for marriage etc., enticing or taking away or detaining with criminal intent a woman, lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment, robbery, common intention---Pre-arrest bail, confirmation of---Accused persons had allegedly abducted two women from the complainant's house---One of the alleged abductees appeared before the High Court and clearly stated that no such incident took place and she had married her husband of her own free-will---Other alleged abductee according to the complainant had contracted Nikah but her rukhsati had not taken place and she in her statement recorded under S.164, Cr. P. C. alleged that she was repeatedly raped by one of the accused persons, which fact was supported by the medical evidence---Validity---Contention of other alleged abductee was belied by two facts, firstly that said abductee was described in the F.LR. as the wife of a named person and secondly that in her statement recorded under S.164, Cr.P. C., she had stated that she wanted to go with her husband, but a girl whose rukhsati had not yet taken place, would obviously not like to go with her husband with whom only her Nikah had taken place---Bail application of accused persons was allowed and pre-arrest bail already granted to theta was confirmed.

Faqir Muhammad and 2 others v. The State 2010 YLR 457; Muhammad Faisal and another v. The State and another 2010 PCr.LJ 1455 and Shah Feroze Rind v. The State 2009 PCr.LJ 409 distinguished.

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

---S. 498--- Penal Code (XLV of 1860), Ss. 365-B, 496-A, 457, 392 & 34---Kidnapping, abducting or inducing woman to compel for marriage etc., enticing or taking away or detaining with criminal intent a woman, lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment, robbery, common intention---Pre-arrest bail, confirmation of---Co-accused persons had allegedly abducted two women from the complainant's house--Allegation against accused was that complainant approached him after the alleged abduction, and accused promised that the abductees would be returned---Validity---Accused was not alleged to be present at the time of the incident or at the place where one of the abductees was allegedly kept and raped---Accused had made out a case for bail and pre-arrest bail already granted to him was confirmed, in circumstances.

Faqir Muhammad and 2 others v. The State 2010 YLR 457; Muhammad Faisal and another v. The State and another 2010 PCr.LJ 1455 and Shah Feroze Rind v. The State 2009 PCr.LJ 409 distinguished.

Zulfiqar Ali Naich for Applicants.

Sikandar Ali Junejo for the Complainant.

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

2013 P Cr. L J 1442

[Sindh]

Before Salman Hamid, J

MOOR MUHAMMAD---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.942 of 2011, decided on 16th December, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 364-A, 354, 109 & 376---Kidnapping or abducting a person under the age of fourteen, assault or criminal force to woman with intent to outrage her modesty, abetment, rape---Bail, refusal of---Accused had allegedly snatched an infant from the complainant's house and threatened -to kill her unless the complainant came to his house, where after, accused expressed his intention to marry the complainant, and on denying the accused, she was raped by him---Contention of accused was that there was a delay in lodging the F.I.R. and that he was innocent and had been falsely implicated in the case---Validity---Complainant was a widow and was subjected to sexual intercourse and the report in that regard was also positive---Overwhelming evidence was available against the accused tab connect him with the commission of the offence, in view of which delay of couple of hours in lodging of F.I.R. became immaterial---No motive was shown by the accused as to why complainant would implicate him in such a heinous case where her own chastity was put at peril and was jeopardized---Bail application of accused was dismissed, in circumstances.

Safdar Ali v. The State 2004 YLR 49; Muhammad Sharif v. The State Federal Shariat Court 2005 PCr.LJ 113; Nasir Mehmood v. The State 2004 PCr.LJ 1259; Salma Bibi alias Pappo v. The State 2004 YL.R 307; Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Dost Muhammad v. The State PLD 1996 Lah. 217 distinguished.

Saeed Ahmed Awan for Applicant.

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

2013 P Cr. L J 1448

[Sindh]

Before Abdul Rasool Memon, J

Mst. MARIYAM---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1105 of 2012, decided on 10th December, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)-Penal Code (XLV of 1860), S. 302/34---Qatl-a-amd, common intention---Bail, grant of---Further inquiry---Accused, a female with a suckling baby---Implication on basis of supplementary statement of complainant---Delay in lodging F.I.R.---Delay in recording statement of eye-witness---Non-conducting of identification parade---Effect---Accused allegedly killed her own husband/deceased and according to the prosecution case she admitted committing the offence by making an extra judicial confession before the police---Accused was not nominated in the F.I.R., which was registered after a delay of four days---Accused was implicated in the present case on basis of further statement of complainant, which was made 14 days after the lodging of F.LR.---Eye-witness who allegedly saw the accused throwing away deceased's body recorded his statement before police 23 days after the incident, without any explanation---Accused was sister-in-law of complainant and was known to hint, but despite such fact further statement of complainant was recorded with a delay---Delay in lodging F.I.R. and recording further statement of complainant gave presumption to meditation and consultation-Extra-judicial confession of accused made before police was yet to be proved at trial---Pointation of place of incident by accused during investigation was not of much significance as investigating officer had already visited the place before arrest of accused---Test identification parade was not conducted--- Accused was mother of a suckling baby aged about 1-1/2 years---Case was one of further inquiry-Accused was allowed bail accordingly.

Muhammad Arif v. The State 1997 SCMR 462; Muhammad Suleman v. Riasat Ali and another 2002 SCMR 1304; Mehmood Ahmed and 3 others v. The State and another 1995 SCMR 127 and Allah Ditta v: The State and others 2012 SCMR 184 ref.

Mst. Gul Khatoon alias Gukki and others v. The State 2010 PSC (Crl.) 742; Syed Maqbool Muhammad v. The State 2005 SCMR 635; Shahzaman and 2 others v. The State and another PLD 1994 SC 65; Aamir v. The State 2007 MLD 1749; Gulzar Khoso v. The State 2006 PCr.LJ 1984 and Abdul Malik v. The State 2000 PCr.LJ 1816 distinguished.

Mst. Nusrat v. The State 1996 SCMR 973 rel.

Shamraiz Khan Tanoli for Applicant.

Ghulam Sarwar Bohio for the Complainant.

Muhammad Iqbal Awan, Assistant Prosecutor-General, Sindh for the State.

Date of hearing: 3rd December, 2012.

2013 P Cr. L J 1482

[Sindh]

Before Sajjad Ali Shah and Irfan Saadat Khan, JJ

Hafiz MUHAMMAD ANEES and 3 others---Petitioners

Versus

The STATE and 4 others---Respondents

Constitutional Petition No.724 of 2012, decided on 29th November, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 154 & 561-A--- Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of F.I.R.---Scam regarding pilferage of Afghan Transit Trade (ATT) containers---Supreme Court took suo mote notice of the matter and gave directions to the concerned Department for conducting an enquiry---Petitioners (official of customs department), were assigned with the investigation of the scant and submitted their report, wherein violations were highlighted but names of official responsible were not mentioned---Subsequently names of officials responsible for the scant were added to the said report---F.I.R. was lodged against the petitioners on the basis that subsequent addition of names of delinquent officials in the report was forgery and was made with mala fide intentions and ulterior motives---Contention of petitioners was that addition of names in the report could not be termed as forgery, and that F.LR. had been registered against them to save delinquent officials of the Department, who were engaged in the scam---Validity---Petitioners were saddled with the responsibility to not only highlight the reasons for the pilferage but also to identify the officials responsible for such lapse in order to save the national exchequer from loss caused due to smuggling---Report presented by petitioners was initially vague as no proposal was given regarding action which should be taken against delinquent officials---Additions made to the report categorically mentioned names of delinquent officials and the penal actions that were to be taken against them, which was in accordance with the directions of the Supreme Court--Additions made to the report by petitioners were in accordance with the mandate given to them and could not be termed to be either vindictive or tainted with a view to take revenge or to involve innocent persons---Additions were made due to the initial legal deficiency in the report---No justifiable reason existed to register an F.I.R. against petitioners in such circumstances---Constitutional petition was allowed and F.LR. in question was quashed.

Sarfaraz Ali Metlo for Petitioners.

Sher Muhammad K. Shaikh, Additional Advocate-General for the State.

Syed Shafqat Ali Shah Masoomi for Respondent No.2.

Date of hearing: 22nd November, 2012.

2013 P Cr. L J 1503

[Sindh]

Before Abdul Rasool Memon, J

HUSSAN BEGUM---Applicant

Versus

IST ADDITIONAL DISTRICT AND SESSIONS JUDGE, KARACHI WEST and 3 others---Respondents

Criminal Miscellaneous Application No.96 of 2012, decided on 25th September, 2012.

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

----Ss. 491 & 561-A---Habeas corpus petition---Recovery of minor-boy from alleged illegal custody of his father (respondent)---Minor-boy below seven years of age---Mother (applicant) filed application under S.491, Cr.P.C., for recovery of her minor son and daughter from the illegal custody of their father---Court below handed over custody of daughter to the mother but ordered that son would remain with the father as he was not in illegal custody---Legality---Custody of minor son who was aged about four years was with his father---Minor son was below the age of seven years and his mother had demanded his custody from the father, hence his custody with the father could not be considered legal and proper---Application was allowed and father was directed to handover the custody of minor son to his mother.

Nisar Muhammad and another v. Sultan Zari PLD 1997 SC 852; Muhammad Naseer Humayon v. Mst. Syeda Ummatul Khabir 1987 SCMR 174; Muhammad Javed Umrao v. Miss Uzma Vahid 1988 SCMR 1891; Mst. Khalida Perveen v. Muhammad Sultan Mehmood PLD 2004 SC 1 and Mst. Rubia Ayaz Khan v. The State and another PLD 2001 Kar. 197 ref.

Rubia Ayaz Khan v. The State PLD 2001 Kar. 197 and Mst. Tayyaba Khan v. Syeda Begum and another PLD 1994 Kar. 204 rel.

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

----S. 491---Habeas corpus proceedings, nature of---Recording of evidence---Scope---Proceedings under S.491, Cr.P.C. by their nature were summary in character and the entire evidence was not recorded to decide the main controversy between the parties.

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

----S. 491--- Guardians and Wards Act (VIII of 1890), S. 25---Habeas corpus proceedings---Custody of minor---Adjudication upon the matter by the Guardian Judge---Effect---Jurisdiction under S.491, Cr.P.C. was to be exercised by the High Court without prejudice to the right of the parties to have the matter finally adjudicated upon by the Guardian Judge.

Muhammad Tamaz Khan for Applicant.

Jehanzeb for Respondents Nos. 2 and 3.

Date of hearing: 17th September, 2012.

2013 P Cr. L J 1523

[Sindh]

Before Aqeel Ahmed Abbasi, J

MEHMOOD UL HASSAN---Applicant/Complainant

Versus

ABDUL RAZZAK and 4 others---Respondents

Criminal Transfer Applications Nos.S-17 and 18 of 2013, decided on 15th April, 2013.

Criminal Procedure Code (V of 1898)---

----S. 526---Transfer of criminal case to another court---Scope---Complainant not recording his statement in court---Non-mentioning of any reasonable ground---Effect---Complainant sought transfer of criminal case to another court on the basis that accused persons were police officials and were harassing him and issuing threats---Plea of accused persons that complainant had not even recorded his statement in court as yet, and that transferring of case to another district would cause them inconvenience, their financial position would be adversely affected and their duty would also suffer---Validity---No reasonable ground had been mentioned in the transfer application except alleged harassment, whereas, the matter was pending since the year 2010 and the complainant had not even got his statement recorded so far---No complaint about alleged harassment had been filed before the police or Trial Court---High Court directed complainant to attend the case on the next date of hearing and get his statement recorded, and concerned police official was directed to provide protection to complainant, if requested by him---Transfer application was disposed of accordingly.

Choudhry Aftab Ahmed Warriach for Applicant.

M. Iqbal Kalhoro, A.P.-G. for the State.

Respondents in person.

2013 P Cr. L J 1528

[Sindh]

Before Farooq Ali Channa, J

MUHAMMAD AKRAM---Petitioner

Versus

STATION HOUSE OFFICER POLICE STATION, THARI MIRWAH, DISTRICT KHAIRPUR and another---Respondents

Constitutional Petition No.S-2154 of 2012, decided on 27th November, 2012.

Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), S. 154---Constitutional petition--- Alternate remedy---F.I.R., non-registration of---Grievance of petitioner was that police did not register F.I.R. on his complaint---Validity---Though concurrent powers were conferred in Sessions Judge and High Court as Justice of Peace by virtue of their office but jurisdiction exercised under Art.199 of the Constitution had certain conditions for invoking such jurisdiction i.e. non-availability of alternate and efficacious remedy--- Constitutional jurisdiction could not be exercised as a matter of routine, however in exceptional cases, aggrieved person could invoke such jurisdiction for seeking directions---No exceptional circumstances were disclosed nor petitioner availed remedies provided under law---Where concurrent jurisdiction was vested in two courts, then as a rule of propriety, lower court was to be approached in first instance---Petitioner could avail alternate remedy provided under law through competent court for redressal of grievances---Petition was dismissed in circumstances.

Muhammad Asif v. Umer Farooque Khan 2010 MLD 128 ref.

Muhammad Yousuf v. Dr. Madad Ali alias Gulab Laskani and others PLD 2002 Kar. 328 rel.

Hadi Bux Bhatt for Petitioner.

Agha Athar Hussain Pathan, A.A.-G. for Respondents.

2013 P Cr. L J 1547

[Sindh]

Before Naimatullah Phulpoto, J

KHALID---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-520 of 2012, decided on 7th December, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324, 353 & 34---Attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty and common intention---Bail, grant of---Challan, filing of---Case of further inquiry---Accused contended that despite firing with sophisticated weapons from both sides none received injuries and challan had already been filed---Validity---Accused fired upon police party but nobody was injured in firing made by both the parties---Ingredients of S.324, P.P.C. were yet to be determined at trial---All prosecution witnesses were police officials, there was no question of tampering with evidence and case had already been challaned---Apparently false implication of accused could not be ruled out and prima facie case against accused required further inquiry as contemplated under S.497(2), Cr.P.C.---Bail was allowed in circumstances.

Ashfaq Kareem alias Khalil-ur-Rehman v. The State 2009 PCr.LJ 679 and Badal v. The State 2007 PCr.LJ 895 ref.

Shahbaz Ali Brohi for Applicant.

Abdul Rasheed Soomro, State counsel for the State.

2013 P Cr. L J 1556

[Sindh]

Before Aftab Ahmed Corar, J

PERVAIZ IQBAL CHOUDHRY---Appellant

Versus

IRSHAD ALI and 3 others---Respondents

Criminal Acquittal Appeal No.266 of 2012, decided on 17th December, 2012.

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

----S. 3---Criminal Procedure Code (V of 1898), S. 417 (2-A)---Prevention of illegal possession of property---Appeal against acquittal---Appreciation of evidence---Utility connections of disputed property negating claim of ownership of complainant---Effect---Complainant/ appellant filed complaint against accused under Ss.3 & 4 of Illegal Dispossession Act, 2005 alleging therein that he was owner of disputed flat and accused had illegally occupied the same---Accused claimed that his father had purchased the flat in question from the complainant vide a sale agreement and possession had also been handed over to him, and that electricity and gas connections of the flat were also in the name of his father---Trial Court dismissed the complaint and acquitted the accused---Validity---During course of evidence accused produced the sale agreement, utility bills in the name of his father and a tenancy agreement executed between his father and a tenant---Complainant could not furnish any explanation as to how the electricity and gas connection of the flat were installed in the name of father of accused, nor he satisfied the court as to why he did not take any steps for getting the name of accused's father cancelled from the utility connections---Complainant had admitted in his cross-examination that he never filed any application nor approached the Electric Supply Company for changing the name of accused's father from the electricity bill---During cross-examination of accused counsel for complainant did not suggest that tenancy agreement executed by father of accused was fake or forged---Record established that father of accused had rented out flat in question to a tenant---Question was as to what prevented the complainant from evicting father of accused from the flat at the relevant time---Appeal against acquittal of accused was dismissed in circumstances.

PLD 2011 Kar. 624 distinguished.

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

----Art. 81---Admission as to genuineness of a document---Scope---Where a document produced in evidence was not challenged/rebutted, it amounted to admitting the said document to be genuine.

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

----S. 417(2-A)--- Appeal against acquittal--- Presumption of innocence---Scope---Presumption of double innocence of accused was attached while dealing with an appeal against acquittal.

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

----S. 417(2-A)---Appeal against acquittal---Interference in order of acquittal---Scope---Order of acquittal could only be interfered with if the same, on the face of it appeared to be perverse, arbitrary, illegal, wholly illogical or unreasonable or in case the reasons assigned by the Trial Court for acquittal were speculative and of artificial nature or the findings were based on no evidence.

Khawaja Naveed Ahmed for Appellant.

Asif Ali Pirzada for Respondent No.3.

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

Date of hearing: 4th December, 2012.

2013 P Cr. L J 1575

[Sindh]

Before Aftab Ahmed Gorar, J

MUHAMMAD YOUSUF UR REHMAN SADDIQUI and another---Applicants

Versus

WASIM KHAN and 5 others---Respondents

Criminal Miscellaneous Application No.215 of 2012, decided on 12th November, 2012.

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

----Ss. 561-A, 145 & 439-A---Inherent jurisdiction of High Court under S.561-A, Cr.P.C.---Scope---Laches---Dispute over subject premises---Subject premises was sealed on orders of Magistrate after proceedings under S.145, Cr.P.C.---Application by applicant for de-sealing of property was dismissed, and revision petition filed thereagainst was also dismissed---Proceedings under S.145, Cr.P.C. were disposed of with the conclusion that matter was of civil nature and civil court would decide the matter---Applicant and respondent filed civil suits regarding the matter which were pending---Contention of applicant was that remedy of revision under S.439-A, Cr.P.C. availed earlier in the lower forum was no bar for invoking provisions of S.561-A, Cr.P.C.---Validity---All the orders impugned in the present application had already been challenged by the applicant and same were decided against him---After having exhausted all the remedies, applicant had now invoked the inherent jurisdiction of the High Court under S.561-A, Cr.P.C.---Civil suit and constitutional petition filed by the applicant in relation to the same matter were still pending---Present application under S.561-A, Cr.P.C. also suffered from laches as after several years of having availed all the remedies, some of which were still pending, the applicant had invoked the inherent jurisdiction of the High Court, which was not permissible under the law---Matter was of a civil nature for which applicant had already filed a civil suit and constitutional petition which were pending---Application was dismissed in circumstances as being not maintainable.

1994 Cr.LJ 2153; 2007 SCMR 834; PLD 1994 Kar. 143; 2007 SCMR 729; 2007 SCMR 262; 1996 PCr.LJ 560; 1996 PCr.LJ 444 and 1990 MLD 134 ref.

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

----S. 561-A---Inherent power of High Court---Scope---Inherent jurisdiction conferred upon High Court pursuant to provisions of S.561-A, Cr.P.C. was neither alternative nor additional in its character and it was to be rarely invoked only in the interest of justice so as to seek redress of grievance for which no other procedure was available---Provisions of S.561-A, Cr.P.C. could not be used to obstruct or divert the ordinary course of criminal procedure.

PLD 2007 SC 189 rel.

(c) Order---

----"Void order"---"Illegal order"---Co-relation---Every "illegal order" could not be said to be a "void order", however every "void order" would certainly be termed as "illegal order".

(d) Words and phrases---

----"Void"--- Meaning.

Pervaiz Iqbal Butt for Applicants.

M. M. Tariq for Respondents Nos. 1 and 2.

Zahoor Shah, A.P.-G. for Official Respondents.

Date of hearing: 2nd November, 2012.

2013 P Cr. L J 1588

[Sindh]

Before Sadiq Hussain Bhatti, J

IMAM BUX---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-172 of 2012, decided on 13th June, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 201 & 34---Qatl-e-amd, causing disappearance of evidence of offence, or giving false information to screen offender, common intention---Bail, grant of---Further inquiry---Deceased alleged to have been murdered by her husband and the accused---Alleged motive for the offence was matrimonial dispute between the deceased and her husband---Body of deceased found in a canal---Accused contending that he had been implicated on hearsay evidence of prosecution witnesses and that there were contradictions on S.161, Cr.P.C., statements of prosecution witnesses---Validity---Date and time of incident missing in the F.I.R.---Prosecution witnesses without disclosing source of their information contending that deceased had been strangulated by her husband and the accused but post-mortem report revealing that deceased received injury caused by sharp cutting object---No ocular evidence and only hearsay evidence was available---Case of accused requiring further inquiry---Accused was granted bail, in circumstances.

Mian Taj Muhammad Keerio for Applicant.

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

Date of hearing: 11th June, 2012.

2013 P Cr. L J 1593

[Sindh]

Before Nisar Muhammad Shaikh, J

DEEDAR---Applicant

Versus

ABDULLAH and another---Respondents

Criminal Revision No.20 of 2012, decided on 2nd May, 2012.

Criminal Procedure Code (V of 1898)---

----S. 540---Application for recalling complainant and prosecution witnesses for further cross-examination was dismissed by Trial Court---Contentions of accused were that State counsel provided to him did not put material questions during cross-examination, therefore, accused was entitled to recall complainant and prosecution witnesses to be cross-examined further by his private counsel, which was subsequently engaged---Validity---Complainant and some prosecution witnesses were cross-examined at length by the State counsel---Admittedly, examination of two prosecution witnesses took place after appointment of private counsel, who also conducted their cross-examination---Case was fixed before Trial Court for recording of statement of the accused---No cogent reason or justification existed to recall the complainant and prosecution witnesses for further cross-examination---Trial Court had committed no illegality or irregularity in dismissing application of the accused---Revision application was dismissed in circumstances.

Abdul Raoof v. The State PLD 2001 Lah. 463; Khalil Rahman Ayub and others v. Mrs. Syeda Yasmin Zaidi PLD 2008 Kar. 388; Muhammad Murad Abro v. The State 2004 SCMR 966 and Criminal Revision Application No.8 of 2011 distinguished.

Ghulam Ali Samtio for Applicant.

Ali Raza Pathan, State Counsel.

2013 P Cr. L J 1600

[Sindh]

Before Farooq Ali Channa, J

ABDUL KARIM and 2 others---Applicants

Versus

The STATE and 2 others---Respondents

Criminal Miscellaneous Application No.S-626 of 2012, decided on 13th November, 2012.

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

----Ss. 190(1), 173 & 561-A---Cognizance of offence by Magistrate after disagreeing with the police report---Scope---Magistrate issuing non-bailable warrants against accused persons without providing reasons for disagreement with the police report---Legality---Names of accused persons/applicants were placed in column No.2 of the challan as investigating officer opined that there was insufficient evidence against them---Challan was submitted before the Magistrate---Complainant also filed a written complaint before the Magistrate, who after disagreeing with the police report ordered issuance of non-bailable warrants against accused persons, without assigning any reasons for such disagreement and without hearing the accused persons---Contentions of accused persons were that impugned order of Magistrate was arbitrary and vague, and that Magistrate was bound to consider the material collected during investigation and then had to pass a just, fair and speaking order---Validity---Magistrate did not consider the material collected during investigation as his impugned order did not contain reasons for disagreeing with the opinion of investigating officer---Order of Magistrate seemed to be arbitrary and could be quashed by the High Court in exercise of its inherent jurisdiction under S.561-A, Cr.P.C.---Impugned order of Magistrate was set aside to the extent of issuance of non-bailable warrants against accused persons with a direction to the competent court to pass a proper and speaking order containing solid reasons on the report submitted by investigating officer under S.173, Cr.P.C. and complaint submitted by complainant, after allowing opportunity of hearing to both parties---Application was disposed of accordingly.

Shoukat Ali and 2 others v. The State 1995 PCr.LJ 1749 rel.

Haji Muhammad Aslam v. The State 1986 PCr.LJ 1492 ref.

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

----Ss. 190(1) & 173---Cognizance of offence by Magistrate after disagreeing with the police report---Scope---Under provisions of S.190(1), Cr.P.C. Magistrate was vested with the power to take cognizance of an offence against persons whose names were placed in column no.2 of the challan, after disagreeing with the opinion of the investigating officer or on basis of information from any persons or upon his own knowledge or suspicion.

Muhammad Tarique Maitlo for Applicants.

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

2013 P Cr. L J 1627

[Sindh]

Before Syed Hasan Azhar Rizvi, J

Mst. NAILA ASHAR---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.335 of 2012, decided on 4th July, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 448, 449, 420, 468, 471, 381 & 34---Qatl-e-amd, house-trespass, house-trespass in order to commit offence punishable with death, cheating and dishonestly receiving stolen property, forgery for purpose of cheating, using as genuine a forged document, theft by clerk or servant of property in possession of master, common intention---Bail, grant of---Delay in conclusion of trial---Female-accused alleged to have committed an offence punishable with death---Trial not concluded despite a lapse of more than one year---Only two prosecution witnesses out of a total of fifteen examined so far---Accused having no previous criminal record and was neither a hardened, desperate or dangerous criminal nor accused of an act of terrorism punishable with death or imprisonment for life---Delay in conclusion of trial not attributable to the accused---No possibility of conclusion of trial in the near future---Accused was granted bail, in circumstances.

Muhammad Aslam v. Nazar Khan 2012 SCMR 138; Shabeer v. The State 2012 SCMR 354; Civil Petition No.620-K of 2011; Criminal Bail Application No.722 of 2011; Muhammad Siddique v. Muhammad Behram 1998 PCr.LJ 358; Muhammad Nawaz v. The State 2002 SCMR 1381; Malik Aqeel v. The State 2011 SCMR 170; Rahim Bakhsh v. Shah Nawaz 2003 SCMR 1966; Shahzad Ahmed v. The State 2010 SCMR 1221; Mirza Shaukat Baig v. Shahid Jamil PLD 2005 SC 530; Hassan v. The State PLD 1996 Kar. 487 and Nazir Hussain v. Ziaul Haq 1983 SCMR 72 ref.

Amir Mansoob Qureshi for Applicant.

Sadaat Yar Khan for the Complainant.

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

Date of hearing: 7th May, 2012.

2013 P Cr. L J 1642

[Sindh]

Before Ahmed Ali M. Shaikh and Sallahuddin Panhwar, JJ

MUHAMMAD YOUSIF---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-92 of 2010, decided on 18th October, 2012.

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

----Ss. 6 & 9(c)---Possession of narcotic---Appreciation of evidence---Possession and control over narcotic---Scope---Vehicle being driven by accused was stopped at a check-post and 40 bundles of charas weighing 40 kilograms were recovered from the secret cavities of the vehicle---Trial Court convicted and sentenced the accused under S.9(c) of Control of Narcotic Substances Act, 1997---Validity---When accused was driving the vehicle, he was incharge of the same, therefore narcotic would be under his control and possession, especially when he had started a long journey alone in the vehicle from which recovery was effected---Person in charge of a vehicle on a long journey, would draw the presumption against him that narcotic substance available in secret cavities of such a vehicle was in his knowledge---None of the prosecution witnesses had any enmity with the accused nor was it ever suggested that there was any reason to falsely implicate the accused by foisting a huge quantity of narcotic upon him---Evidence of prosecution witnesses remained consistent on all material particulars despite lengthy cross-examination---According to report of Chemical Examiner 40 packets, each containing 9 black rods wrapped in plastic pane were sent to the Laboratory for examination on the same day of the incident and also reached the Laboratory on the same day---Appeal was dismissed in circumstances.

The State through Advocate-General v. Sarfraz and others 2011 SCMR 965 & 641 distinguished.

Muhammad Noor v. The State 2010 SCMR 927 rel.

PLD 2004 SC 856; 2007 SCMR 206 and 1995 SCMR 1345 ref.

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

----S. 6---Possession and control over narcotic---Scope---Narcotic recovered from secret cavity of vehicle on a long journey---Presumption---Person in charge of a vehicle on a long journey, would draw the presumption against him that (any) narcotic substance available in secret cavities of such a vehicle was in his knowledge.

Muhammad Noor v. The State 2010 SCMR 927 rel.

Ghulam Shabbir Dayo for Appellant.

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

Date of hearing: 18th October, 2012.

2013 P Cr. L J 1671

[Sindh]

Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ

Dr. ABDUL RAUF---Petitioner

Versus

FEDERATION OF PAKISTAN through Interior Secretary and others---Respondents

Constitutional Petition D-339 of 2012, decided on 2nd May, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B--- Constitution of Pakistan, Art. 199---Constitutional petition---Alternate efficacious remedy---Scope---Justice of Peace, powers of---Petitioner, inter alia sought directions from the High Court to the effect that a criminal case be registered against the respondents and the Police be directed not to harass the petitioner and not to arrest him in the F.I.R. lodged against him---Validity---Justice of Peace may issue appropriate directions to the police authorities concerned on a complaint regarding non-registration of a criminal case, and such alternate and adequate remedy was available to the petitioner---No compelling circumstances had been pointed out by the petitioner as to why he approached High Court by invoking its Constitutional jurisdiction---Jurisdiction under Ss.22-A & 22-B, Cr.P.C. was vested both in the High Court and Court of Session as a rule of propriety---Where concurrent jurisdiction was vested in two courts then the subordinate court should to be approached in the first instance---Where remedy of approaching Justice of Peace under Ss.22-A & 22-B of the Cr.P.C. was available and the same was a more efficacious and speedy remedy, which the petitioner may avail instead of invoking the Constitutional jurisdiction of High Court---No legal force existed in the petitioner's contention that the police be ordered not to arrest the petitioner as the High Court could not interfere in the investigation---High Court observed that the Police officers should be given a freehand to investigate the case with their own wisdom unless mala fide was shown---Constitutional petition being merit less, was dismissed, in circumstances.

Syed Shafqat Ali Shah Masoomi for Petitioner.

Syed Mohsin Imam, D.A.-G. along with Syed Israr Ali, Additional Director, FIA.

Asif Ali Abdul Razzak Soomro for Respondents Nos.4 to 6, 8, 10 and 11.

Sher Muhammad Shaikh, Additional Advocate-General Sindh.

Zafar Ahmad Khan, Additional Prosecutor-General Sindh.

2013 P Cr. L J 1709

[Sindh]

Before Faisal Arab and Aftab Ahmed Gorar, JJ

MUHAMMAD IQBAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.464 of 2011, decided on 10th October, 2012.

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

----Ss. 9(c) & 25---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5---Possession of narcotic---Appreciation of evidence---Police on basis of spy information, signalled accused to stop at a police picket but he tried to speed away and escape---Accused was ultimately arrested and 18 kilograms of heroin was recovered from the vehicle he was driving---No contradictions existed regarding receipt of spy information, laying of police picket (nakabandi) on the spot, arrival of vehicle of accused, recovery of heroin weighing 18 kilograms and taking out of samples from each and every packet for analysis---Report of Chemical analysis was in positive---Since there was no objection that recovered substance was unsealed or tampered with or manipulated, therefore, delay in sending samples would not affect the result of their analysis---Rules 4 & 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001 were advisory and not mandatory---Failure to follow said Rules did not render the search, seizure and arrest under Control of Narcotic Substances Act, 1997 an absolute nullity and non est---Regarding contention of accused that samples had not been taken from each recovered packet, it was not necessary to take samples from each packet as required evidence had been produced to connect the report with the case property---Association of private persons as witnesses was not necessary in the present case as S.103, Cr.P.C. had been excluded in narcotic cases by virtue of S.25 of Control of Narcotic Substances Act, 1997---Accused had failed to clarify as to what he was doing at the relevant time in the vehicle in question from which huge quantity of heroin was recovered and as to why he did not stop the vehicle at the picket when signalled by the police and tried to speed away---Prosecution had produced trustworthy ocular and circumstantial evidence to connect accused with the commission of the offence---Appeal was dismissed accordingly.

2003 SCMR 52; PLD 2005 Kar. 4; 2008 MLD 314; 2003 PCr.LJ 82 and 2000 PCr.LJ 755 distinguished.

2006 MLD 1121; PLD 2006 Pesh. 39; 1988 SCMR 1899; 2003 SCMR 54; PLD 2009 Kar. 212; 2001 SCMR 36; Sardar Khan v. State PLD 2005 Pesh. 166 and Riaz Muhammad v. State PLD 1993 FSC 25 rel.

Ch. Abdul Sattar Abid for Appellant.

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

Date of hearing: 10th October, 2012.

2013 P Cr. L J 1720

[Sindh]

Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ

BISMILLAH KHAN and another---Applicants

Versus

The STATE---Respondent

Criminal Revision Application No.65 of 2012, decided on 30th January, 2013.

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

----Ss. 23 & 6(2)(e)---Penal Code (XLV of 1860), S. 365-A---Transfer of case from Anti-Terrorism Court to Court of Session---Act of terrorism---Scope---Business dealing between the parties---Kidnapping for payment of a due amount---Accused persons were alleged to have kidnapped the alleged abductee for ransom---Alleged abductee was later recovered by the police---Perusal of F.I.R., statement of alleged abductee under S.161, Cr.P.C. and other material collected during investigation showed that there was a business dealing between the parties, and cheques were issued by the complainant party, which got dishonoured on presentation, therefore, ingredients of S.365-A, P.P.C. were not satisfied from the material collected during investigation---Ordinary crimes like the present one, were not to be tried under the Anti-Terrorism Act, 1997---Anti-Terrorism Court, while dismissing application of accused persons for transfer of case, itself observed that three cheques had been issued by the alleged abductee---Anti-Terrorism Court had no jurisdiction to try the present case---Revision application was allowed with a direction to Anti-Terrorism Court to transfer the case to the Court of Session.

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

----S. 6---Act of terrorism, determination of---Scope---Under S.6 of Anti-Terrorism Act, 1997, "terrorism" was determined from the criminal act designed to create a sense of fear or insecurity in the minds of the general public, disturbing even tempo of life and tranquillity of society.

Abdul Wasey Kakar for Applicants.

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

Date of hearing: 30th January, 2013.

2013 P Cr. L J 1730

[Sindh]

Before Riazat Ali Sahar, J

MORE---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.29 of 2004, decided on 2nd August, 2012.

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

----S. 436---Mischief by fire or explosive substance with intent to destroy house, etc.---Appreciation of evidence---Benefit of doubt---Manner of setting fire not believable---Enmity between the parties admitted---False implication possible---Effect---Accused was alleged to have set complainant's Otak on fire by using a match-stick while the co-accused persons allegedly resorted to aerial firing and also caused injuries to complainant's brother---Trial Court convicted and sentenced the accused under S.436, P.P.C.---Validity---Material contradictions existed between the evidence of complainant, eye-witnesses and investigation officer---Nothing had been secured and produced before Trial Court in respect of source of the fire like "match box" or any other thing---Fact that entire Otak including its furniture could be burnt by help of a single match stick, without any kerosene oil or something similar, was not believable---Enmity between the parties over a plot was admitted, therefore, false implication of accused on account of such enmity could not be ruled out---Prosecution had failed to prove the charge against accused beyond any reasonable doubt---Accused was extended benefit of doubt and was accordingly acquitted of the charge---Appeal was allowed accordingly.

(b) Criminal trial---

----Benefit of doubt, availability of---Scope---Single infirmity creating doubt---Effect---For the purpose of giving benefit of doubt to an accused more than one infirmity was not required--- Single infirmity creating reasonable doubt in a prudent mind regarding truth of the charge was sufficient to give benefit of doubt to the accused.

Altaf Hussain Surhyo for Appellant.

Muhammad Yakoob Dahani State Counsel.

Date of hearing: 2nd August, 2012.

2013 P Cr. L J 1752

[Sindh]

Before Aftab Ahmed Gorar, J

Mst. ASMA AHTESHAM---Applicant

Versus

The STATE---Respondent

Criminal Miscellaneous Application No.75 of 2012, decided on 5th November, 2012.

Penal Code (XLV of 1860)---

----S. 489-F---Criminal Procedure Code (V of 1898), S. 561-A---Dishonoured cheques issued from a joint account---Joint account holders, liability of---Scope---Complainant had allegedly provided a loan to the accused-lady (applicant) and her husband/co-accused---Accused and her husband/co-accused issued cheques to the complainant from a joint account---Said cheques were dishonoured---Court below directed the Magistrate to issue process against the accused for joining her in the trial---Complainant contended that accused was negotiating for the loan and wrote a letter to the Bank for stopping payments of cheques, therefore, she shared the common intention with her husband/co-accused to cheat the complainant---Accused contended that she had no concern with the business of her husband/co-accused, and that she neither obtained any loan from the complainant nor issued any cheques to him---Validity---Accused was nominated in the F.I.R. and she had a joint account with her husband/co-accused---Facts and circumstances of the case fully connected the accused with the commission of the alleged offence---Impugned order of Court below needed no interference---Revision application was dismissed accordingly.

Muhammad Asif and Muhammad Saeed for Applicant.

Khuwaja Naveed Ahmed for the Complainant.

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

Date of hearing: 5th November, 2012.

2013 P Cr. L J 1759

[Sindh]

Before Farooq Ali Channa, J

WAHID BUX---Appellant

Versus

The STATE and 4 others---Respondents

Criminal Acquittal Appeal No.95 of 2011, decided on 10th September, 2012.

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

----S. 417---Limitation Act (IX of 1908), S. 5---Time barred appeal against acquittal---Application for condonation of delay, dismissal of---Appeal against acquittal was barred by 20 days---Complainant (appellant) contended that he was an illiterate person having no knowledge of the law and was misguided by his counsel appearing on his behalf before the Trial Court---Validity---Complainant failed to point out any act on part of the acquitted accused which prevented complainant from filing the appeal within the prescribed time nor compelling circumstances had been brought on record in order to condone the delay in filing appeal---Neither complainant disclosed name of counsel who allegedly misguided him during the trial---Impugned judgment of Trial Court bore no name of the advocate who appeared on behalf of complainant, which showed that no one appeared for the complainant before the Trial Court---Complainant was also not vigilant as he applied for certified copy of impugned judgment about six days after expiry of appeal period and present appeal was filed with a further delay of 13 days after receiving the said certified copy---No reasons existed for condonation of delay in filing present acquittal appeal---Application for condonation of delay was dismissed as a consequence whereof acquittal appeal also stood dismissed being barred by time.

Abdul Waheed v. The State PLD 1960 (W.P.) Lah. 646; The State v. Nazir Ahmed 1999 SCMR 610; Munawar Hussain alias Bobi and 2 others v. The State 1993 SCMR 785; Muhammad Sharif v. Jamshed Ali and others PLD 1996 Lah. 471 and Bakhat Baidar v. The State 1982 SCMR 420 distinguished.

Abdul Ghaffar v. Muhammad Asif and another 2011 PCr.LJ 441; Pervez Peter v. The State 2009 YLR 580; The State/Anti-Narcotics Force through Deputy Director (Law), Karachi v. Muhammad Adeel Hussain and another 2010 YLR 1322 and Roshan v. Muhammad Saleh and 2 others 2008 MLD 187 ref.

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

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

----S. 417---Limitation Act (IX of 1908), S. 5---Time-barred appeal against acquittal---Condonation of delay---Principles---Delay in filing appeal could be condoned if it appeared that delay was caused by an act of the acquitted accused or by circumstances of compelling nature.

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

(c) Administration of justice---

----When law required a thing to be done in a particular manner then same should be done in the manner prescribed by law.

(d) Limitation Act (IX of 1908)---

----S. 5--- Condonation of delay--- Principle--- Mere unawareness/ ignorance of law was no ground for condonation of delay.

Sharafuddin Mangi for Appellant.

Ghulam Sarwar Thebo for Respondents Nos.3 to 5.

Khadim Hussain, D.P.-G.

2013 P Cr. L J 1778

[Sindh]

Before Imam Bux Baloch, J

AMAN alias AMU alias AMANULLAH and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Applications Nos.133 and 162 of 2011, decided on 4th May, 2011.

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

----S. 498---Penal Code (XLV of 1860), Ss. 380 & 459---Theft in dwelling house, hurt caused whilst committing lurking house-trespass or house-breaking---Interim pre-arrest bail, recalling of---Contention of accused that he had recently come from abroad and in order to blackmail him and usurp amount from him he was involved by the complainant, and that according to F.I.R. injured received injuries outside the house, therefore, it was impossible that the complainant could have identified the co-accused---Validity---Name of accused and co-accused had been mentioned in the F.I.R.---Complainant and prosecution witnesses had identified the accused and co-accused in electricity light---During course of investigation ten empty shells had been recovered from the place of occurrence---Accused and co-accused after getting the concession of interim pre-arrest bail, misused the same and extended threats of killing to the complainant and in this regard an F.I.R. had also been lodged---Medical certificate of injured revealed that he received firearm injury which had been declared as jurh ghayr-jaifah hashimah---Accused and co-accused had committed an offence, which did fall within the prohibitory clause of S.497, Cr.P.C.---Bail application of accused and co-accused was dismissed and earlier order granting them interim pre-arrest bail was recalled.

2007 PCr.LJ 513 and 1994 PCr.LJ 1769 distinguished.

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

----S. 497---Penal Code (XLV of 1860), Ss. 380 & 459---Theft in dwelling house, hurt caused whilst committing lurking house-trespass or house-breaking---Bail, refusal of---Contention of accused and co-accused that no active role had been assigned to them and as per contents of F.I.R., active role was assigned to the other co-accused; that accused was a minor, and that injured had received injuries outside the house, therefore, S.459, P.P.C. was not applicable---Validity---Name of accused and co-accused had been mentioned in the F.I.R.---Complainant and prosecution witnesses had identified the accused and co-accused in the electricity light---During course of investigation ten empty shells had been recovered from the place of occurrence--- Medical certificate of injured revealed that he received firearm injury which had been declared as jurh ghayr-jaifah hashimah--- Accused and co-accused had committed an offence, which did fall within the prohibitory clause of S.497, Cr.P.C.---Bail application of accused and co-accused was dismissed.

2011 PCr.LJ 208 distinguished.

Saleem Raza Jakhar for Applicants (in Criminal Bail Application No.133 of 2011).

Irfan Ali Bhurgri for Applicants (in Criminal Bail Application No.162 of 2011).

Shamasuddin Abbasi for the Complainant.

Altaf Hussain Surahyo, State counsel.

2013 P Cr. L J 1786

[Sindh]

Before Shahid Anwar Bajwa and Aftab Ahmed Gorar, JJ

TARIQ and others---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos.16, 18 and 24 of 2010, decided on 26th September, 2012.

Penal Code (XLV of 1860)---

----Ss. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping or abduction for extorting property, valuable security etc., common intention, acts of terrorism (kidnapping for ransom or hostage-taking)---Appreciation of evidence---Benefit of doubt---Accused persons (appellants) were alleged to have kidnapped the complainant's grandson for ransom---One of the accused persons was allegedly recognized from his voice when he had made calls to the complainant demanding ransom---Accused persons had also made a confession before the Magistrate, who handed them over to the same Investigating Officer, who was already investigating the case instead of remanding them to judicial custody---Validity---Judicial Magistrate, who also deposed as a prosecution witness, had admitted in her cross-examination that after recording of confessional statement of the accused persons they were handed over to the Investigating Officer, and she also admitted that on the application of Investigating Officer for recording confessional statement of accused persons, they were not given a chance to engage their counsel---No question was put by the Judicial Magistrate to the accused persons in their confessional statements as to whether their family members were detained in order to pressurize them to make a confession---Delay of 10 days occurred in recording confessional statements of accused persons--- No independent witness had been cited by the prosecution during recovery of abductee---Police did not record statement of owner of building or of any neighbour from where the abductee was recovered---Name of owner of building had not been mentioned on the memo of recovery---Such circumstances created doubts in the prosecution case benefit whereof had to go to the accused persons---Appeals were allowed and accused persons were acquitted accordingly.

Muhammad Ibrahim v. The State PLD 2000 Kar. 128; Murtaza and 2 others v. The State and another 1996 PCr.LJ 358; Minhon and another's case 1996 PCr.LJ 528; Irshad Ali alias Ishoo and 2 others v. The State PLD 2006 Kar. 178; PLD 2007 Quetta 12; Tariq Pervez v. The State 1995 SCMR 1345 and Tooh v. The State 1975 PCr.LJ 440 rel.

2007 PCr.LJ 359; PLD 2006 Kar. 206; 2008 PCr.LJ 87 and PLD 2006 SC 538 ref.

Ms. Syeda Sara Kanwal for Appellants (in Special Criminal A.T. Appeal No.16 of 2010).

Khalid Mumtaz for Appellants (in Special Criminal A.T. Appeal No.18 of 2010).

Abrar Khichi, A.P.-G. for the State.

Date of hearing: 12th September, 2012.

2013 P Cr. L J 1793

[Sindh]

Before Sadiq Hussain Bhatti, J

STATE/ANF through Deputy Director (Law) Regional Directorate (Anti-Narcotic Force, Karachi---Appellant

Versus

Mst. ISHARAT MOIN---Respondent

Special Criminal Appeal No.38 of 2009, decided on 8th November, 2012.

Prevention of Smuggling Act (XII of 1977)---

----S. 31---Property suspected to be acquired by smuggling---Restriction imposed on such property after issuance of notice under S.31 of Prevention of Smuggling Act, 1977---Non-issuance of notice to person having a third-party interest in such property---Effect---Release/Unfreezing of property---Notice under S.31 of Prevention of Smuggling Act, 1977 had been issued in connection with the property in question as it had been allegedly purchased by the accused through proceeds of narcotics smuggling---Case regarding said property was pending in the Trial Court---Respondent/alleged purchaser submitted application before Trial Court contending that she had purchased the property in question and in such regard a sub-lease had been executed---Trial Court allowed application of respondent and released the property from the ambit of S.31 of Prevention of Smuggling Act, 1977---Anti-Narcotics Force (appellant) contended that respondent was a front person of the accused and mere registration of a document (sub-lease) was not a certificate to abolish the status of the subject property---Validity---Record showed that property in question had been purchased by the respondent in the year 1994, whereas notice under S.31 of Prevention of Smuggling Act, 1977, imposing restriction upon the subject property was issued in the year 1996---Said notice was issued by the Court upon the accused and his associates, but no notice was served upon the respondent/alleged purchaser---Serving of said notice upon the respondent was not only mandatory but also practical since she had third party interest in the property---Since no notice was served upon the respondent, she appeared before the Trial Court, which released the property---Prosecution had not been able to establish any links or business deals between the respondent and the accused and his associates---Prosecution had sufficient time to collect tangible evidence to connect respondent with criminal activities of the accused, but same was not done---Prosecution had also not collected any evidence to prove that respondent was not resourceful and did not have the means to purchase the subject property---Appeal was dismissed in circumstances.

PLD 2006 Sindh 25 ref.

Hussain Bux Baloch, Special Prosecutor for ANF.

Khadim Hussain for Respondent.

Date of hearing: 23rd October, 2012.

2013 P Cr. L J 1808

[Sindh]

Before Sajjad Ali Shah and Irfan Saadat Khan, JJ

ISHAQ ALI---Applicant

Versus

The STATE and 2 others---Respondents

Criminal Revision Application No.52 of 2012, decided on 8th November, 2012.

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

----Ss. 6(i) & 23---Penal Code (XLV of 1860), Ss. 302, 393 & 34---Qatl-e-amd, attempt to commit robbery, common intention---Act of terrorism, determination of---Transfer of case from Anti-Terrorism Court to Sessions Court---According to F.I.R. accused persons came to a shop with the intention to commit robbery, and after failing they started firing at the deceased persons--- Case was transferred from Anti-Terrorism Court to Sessions Court on an application filed by accused persons under S.23 of Anti-Terrorism Act, 1997---Validity---For determining whether an action fell under the ambit of S.6 of Anti-Terrorism Act, 1997, the averments made in the F.I.R. and allegations raised in such regard were of prime importance---F.I.R. categorically stated that accused persons stopped at the front of the shop with an intention to commit robbery and when they were stopped, they started firing upon the deceased persons---Present case pertained to robbery with murder committed for private gains and offence was not committed with the design or purpose as contemplated under any of the provisions of S.6 of Anti-Terrorism Act, 1997---Case had been rightly transferred from Anti-Terrorism Court to Sessions Court---Revision application was dismissed accordingly.

Nooruddin v. Nazeer Ahmed and others 2011 PCr.LJ 1370; Mst. Najam-un-Nisa v. Judge, Special Court Constituted under Anti-Terrorism Act, 1997 2003 SCMR 1323; Mst. Raheela Nasreen v. The State and another 2002 SCMR 908; Mirza Shaukat Baig and others v. Shahid Jamil and others PLD 2005 SC 530; Zahid Imran and others v. The State and others PLD 2006 SC 109; Gul Muhammad v. The State PLD 2012 Bal. 22; Sher Ahmed v. Khuda-e-Rahim 2012 MLD 158 and Gul Muhammad v. The State SBLR 2012 Sindh 456 distinguished.

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

----S. 6---Act of terrorism, determination of---Perusal of S.6 of Anti-Terrorism Act, 1997 revealed that Anti-Terrorism Court had the jurisdiction to try the case, if an offence was made out with an intention to strike terror in the public or in a section of public---Act should be designed to create a sense of fear and insecurity in the minds of the general public---For determining whether an action fell under the ambit of S.6 of Anti-Terrorism Act, 1997, the averments made in the F.I.R. and allegations raised in such regard were of prime importance---While examining such offence it was to be seen that the offence had a nexus with the object of the Anti-Terrorism Act, 1997 and was squarely covered under Ss. 6, 7 & 8 of Anti-Terrorism Act, 1997---Case was not triable by the Anti-Terrorism Court when any of the condition laid down in section 6 of Anti-Terrorism Act, 1997 were not fulfilled.

Niamat Ali Randhawa for Applicant.

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

Date of hearing: 8th November, 2012.

2013 P Cr. L J 1829

[Sindh]

Before Salahuddin Panhwar, J

SHAMAN alias SHAMOO and 3 others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.S-53 and S-56 of 2012, decided on 10th December, 2012.

(a) Criminal trial---

----Guilt or innocence---Determination---Question of guilt or innocence is always to be decided on the basis of evidence brought on record through course of trial and not on the basis of material by which one person is sent to face his trial---Substantive evidence of witness is his/her statement which is recorded during trial, where accused has mandatory right to cross-examine the witness.

(b) Criminal trial---

----Recovery---Effect---Mere recovery alone, being a corroborative piece of evidence in nature, is not sufficient to prove charge against accused.

Muhammad Afzal v. State 2009 SCMR 436 rel.

(c) Criminal trial---

----Medical evidence---Scope---Such evidence cannot identify or locate perpetrators of offence.

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

----S. 395---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Dacoity and Harrabah---Appreciation of evidence---Benefit of doubt---Principle---Accused was convicted and sentenced by Trial Court for committing dacoity---Validity---Ocular evidence was contradictory and two prosecution witnesses, who were star witnesses of the incident negated evidence of complainant and even did not identify accused persons---Prosecution failed in establishing charge beyond reasonable doubt---No sufficient evidence was available against accused to justify their conviction because system of safe criminal administration of justice demanded that a single reasonable dent was sufficient to make whole case doubtful and benefit thereof must be given to accused as a matter of right and not as a matter of grace---Miscarriage of justice might arise from acquittal of guilty, no less from conviction of innocent---High Court set aside conviction and sentence awarded to accused by Trial Court as the same was based on misreading and non-reading of evidence---Appeal was allowed in circumstances.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Zulfiqar Ali Naich for Appellants (in Criminal Appeal No.S-53 of 2012).

Abdul Baqi Jan Kakar for Appellant (in Criminal Appeal No.S-56 of 2012).

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

Date of hearing: 10th December, 2012.

2013 P Cr. L J 1837

[Sindh]

Before Aftab Ahmed Gorar and Irfan Saadat Khan, JJ

MUHAMMAD SALEEM and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.D-265, D-315 and Criminal Jail Appeal No.D-304 of 2010, decided on 5th March, 2013.

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

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S.103---Smuggling of narcotics---Non-association of private Mashir, effect---Appreciation of evidence---No infirmity was found in the evidence of the complainant---Prosecution witness had fully supported the prosecution case, and did not commit any error in connection with the arrest of accused persons---Recovery of narcotics was effected on the pointation of accused---Evidence of prosecution witnesses could not be shattered in lengthy cross-examination and they remained in line with each other---No infirmity or omission existed in the deposition of the witnesses and no contradiction had been pin-pointed in their evidence---Though huge quantity of narcotic substance was involved in the case, but the complainant and prosecution witness did not differ or contradict each other in respect of the number of packets, weight of the narcotic, as well as the manner in which the same were recovered---Counsel for accused persons could not prove any enmity or ill-will against the prosecution witnesses to have deposed against accused persons falsely---Mashirnama was prepared at the time of recovery, which was verified by the prosecution witness to be true---Associating the private mashir was not necessary, as S.103, Cr.P.C. had been excluded under S.25 of Control of Narcotic Substances Act, 1997---Ocular testimony had duly been corroborated by the mashirnama of arrest and recovery prepared at the spot in presence of Mashirs---Huge quantity of narcotic substance was involved in the case, and in view of strong evidence available against accused persons, they were rightly convicted and sentenced; and question of reduction of sentence, did not arise.

Ghulam Hussain and 9 others v. The State 2011 PCr.LJ 72; Muhammad Janas and another v. The State 2010 SCMR 1016; Gul Raeef Khan v. The State 2008 SCMR 865; Shahzada v. The State 2010 SCMR 841; Abdul Rehman v. The State 2011 SCMR 965; Muhammad Noor and others v. The State 2010 SCMR 927; Iqbal Khan v. The State 2012 PCr.LJ 1524 and Meharban and 2 others v. The State 2011 PCr.LJ 8 distinguished.

Ghulam Qadir v. The State PLD 2006 SC 61 and Kashif Amir v. The State PLD 2010 SC 1052 ref.

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

----Ss. 9(c) & 29(d)---Smuggling of narcotics---Possession of illicit articles, presumption---Appreciation of evidence---Accused who were travelling in Bus, were arrested and in their presence and pointation, huge quantity of narcotics was recovered---Boxes containing narcotics were lying on the roof of the Bus and all accused had knowledge about the same---One of accused was owner, others were driver, second driver and conductor of the Bus, and one of them was sitting in the Bus on whose pointation the narcotics were recovered---Contentions were that a driver and conductor could not be held responsible for transporting contraband articles and that at best their responsibility would start only when the contraband items had been recovered from the designed cavities of the bus---Validity---Under provisions of S.29(d) of Control of Narcotic Substances Act, 1997, unless otherwise proved, presumption would be that accused had committed an offence under Control of Narcotic Substances Act, 1997 in respect of any material which had undergone any process towards the production or manufacture of narcotics---Presence of accused persons being owner, driver, second driver and conductor of the Bus was not denied; they were arrested from the spot in presence of Mashirs---Recovered articles were lying openly in boxes on the roof of the Bus, same would be in the knowledge of accused persons---Accused, in circumstances were equally responsible for the transportation of said narcotic substance and in circumstances could not be absolved from the responsibility.

Muhammad v. The State PLD 1984 SC 278; Said Shah v. The State PLD 1987 SC 288; Nadir Khan v. The State 1988 SCMR 1899; Shaharzada v. The State 1993 SCMR 149; Shah Wali and another v. The State PLD 1993 SC 32; Rab Nawaz v. The State PLD 1994 SC 558 and Ikram Hussain v. The State 2005 SCMR 1487 ref.

Ilumuddin Khatak for Appellants (in all cases).

Amjad Ali Sahto Special Prosecutor ANF for Respondent (in all cases).

Date of hearing: 5th March, 2013.

2013 P Cr. L J 1872

[Sindh]

Before Sadiq Hussain Bhatti, J

Maj. (R) ALI MURAD---Appellant

Versus

MUHAMMAD KAMRAN and another---Respondents

Criminal Acquittal Appeal No.300 of 2012, decided on 18th March, 2013.

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

----S. 489-F---Criminal Procedure Code (V of 1898), S. 417(2-A)---Dishonestly issuing a cheque---Appeal against acquittal---Appreciation of evidence---Accused admitted issuance of cheque and contended that when it was not encashed he immediately paid cash amount to an employee of complainant---After conclusion of trial, accused was acquitted by Trial Court---Validity---Trial Court had rightly mentioned that S.489-F, P.P.C. would attract if three conditions were attracted issuance of cheques; such issuance was with dishonest intention; and the purpose of issuance of cheques should be to fulfil an obligation or to repay a loan---Element of dishonest intention was missing, hence offence was not completed---Employee of complainant was not examined as witness---Complainant failed to prove his case beyond shadow of doubt---High Court declined to interfere in judgment of acquittal passed by Trial Court---Appeal was dismissed in circumstances.

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

----S. 417---Appeal against acquittal---Principles---Interference by High Court in acquittal judgment passed by Trial Court is unwarranted unless acquittal is arbitrary, capricious, fanciful and against the record---Appraisal of evidence in appeal against conviction is done strictly but in appeal against acquittal same rigid method is not to be applied---Interference by High Court may be made only where there is gross misreading of evidence amounting to miscarriage of justice---Acquittal of accused cannot be set aside lightly in absence of any strong evidence---Finding of acquittal not sacrosanct, if reasons are of speculative or artificial in nature or based on no evidence or misrepresentation of evidence or conclusion drawn as to guilt or innocence perverse resulting into miscarriage of justice, High Court can interfere in such findings of acquittal.

The State v. Nayar Mirza 1989 PCr.LJ 1005; The State v. Sikandar Hayat 1989 PCr.LJ 1179 and Muhammad Gulzar v. Adalat Hussain 2012 MLD 1321 rel.

Nauman Shafique for Appellant.

Shahzad Mehmood for Respondent No.1.

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

Date of hearing: 11th March, 2013.

2013 P Cr. L J 1883

[Sindh]

Before Salahuddin Panhwar, J

EIDAN KHAN---Applicant

Versus

S.H.O. POLICE STATION KAMBHRA and another---Respondents

Criminal Miscellaneous Applications Nos.S-86 and 137 of 2013, decided on 22nd February, 2013.

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

----Ss. 154, 345, 22-A & 22-B---Second F.I.R., registration of---Scope---F.I.R. for the incident was lodged on the complaint of wife of deceased-victim---Applicant (father-in-law of complainant) filed an application before Justice of Peace for registration of second F.I.R. for the same incident on the plea that wife of deceased (her daughter-in-law) might patch up with the accused and would not pursue the case properly---Justice of Peace dismissed said application---Legality---Applicant's version before Justice of Peace and F.I.R. lodged by wife of deceased were exactly the same regarding name of accused and manner of incident---After registration of F.I.R., investigation was carried out and recovery was effected from the accused and case was pending adjudication---Under S.154, Cr.P.C., information of a cognizable offence mattered and not the informer---Provisions of S.154, Cr.P.C. made it clear that law was to be brought into motion with regard to an incident, hence it was the information of cognizable offence which was thrashed by the law enforcing agency (i.e. police) through course of investigation, thus, two F.I.Rs. in normal course could not prevail---Mother of deceased was also alive, therefore, wife of deceased was not the sole legal heir to compound the offence---Issuing direction for registration of second F.I.R. on the apprehension of applicant would be an abuse of the process of law---Impugned order of Justice of Peace was passed in accordance with law---Application was dismissed accordingly.

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

----S. 154--- First Information Report---Complainant---Scope---Any aggrieved person could pursue the case of his nearer and dearer.

Imtiaz Ahmed Kolachi for Applicant.

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

Date of hearing: 22nd February, 2013.

2013 P Cr. L J 1892

[Sindh]

Before Farooq Ali Channa, J

HAZAR KHAN and 3 others---Applicants

Versus

The STATE---Respondent

Criminal Miscellaneous Application No.577, M.As. Nos. 3932 and 3933 of 2010, decided on 16th November, 2012.

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

----Ss. 169 & 190---Release of accused when evidence deficient---Scope---Investigating officer releasing accused under S.169, Cr.P.C on basis of defence plea of alibi taken by accused---Legality---During investigation accused persons raised plea of alibi, whereafter investigating officer released them under S.169, Cr.P.C.---Magistrate took cognizance of the matter under S.190, Cr.P.C. and joined accused persons to face trial on the grounds that they had been specifically nominated in the F.I.R. with specific allegations and there was sufficient material to connect them with the commission of the offence---Validity---Magistrate considered material/evidence collected during investigation before passing the impugned order---Such evidence could not be ignored merely on the defence plea taken by accused persons before the investigating officer---Release of accused persons by investigating officer under S.169, Cr.P.C., by giving preference to defence plea of alibi over prosecution evidence based upon ocular testimony and supported by medical evidence, was unlawful and beyond the parameters of S.169, Cr.P.C.---Impugned order of Magistrate did not suffer from any illegality, infirmity and was not without jurisdiction---Application was dismissed accordingly.

Abdul Wahid v. The State and others PLD 2007 Lah. 65 rel.

Zafrullah and another v. The State and another PLD 2012 Sindh 406 and Syed Paryal Shah v. Behram Ali and 3 others 2012 PCr.LJ 189 ref.

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

----S. 169---Release of accused by investigating officer when evidence deficient--- Scope--- Law did not permit the investigating officer to let-off any accused against whom sufficient evidence had been produced by the complainant merely on a defence plea raised by accused as the evaluation of two conflicting sets of evidence i.e. prosecution evidence and defence plea was not within the domain of powers vested in the investigating officer under S.169, Cr.P.C.---Release of accused could only be valid in case the prosecution evidence was "deficient", otherwise it was the exclusive jurisdiction of Trial Court to decide the guilt or innocence of any person.

Abdul Wahid v. The State and others PLD 2007 Lah. 65 rel.

Ali Raza Kalwar for Applicants.

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

2013 P Cr. L J 1

[Lahore]

Before Shujaat Ali Khan, J

Mst. SHAMIM AKHTAR---Petitioner

Versus

FIELD INVESTIGATION UNIT (FIU) through Incharges and 10 others---Respondents

Writ Petition No.7955 of 2012, decided on 16th July, 2012.

(a) Constitution of Pakistan---

----Art. 199(1)(b)(i)---Habeas corpus---Recovery of person---Scope---High Court under Art.199(1)(b)(i) of the Constitution is competent enough to direct a person for production of a person who is in unlawful custody.

(b) Constitution of Pakistan---

----Art. 199(1)(b)(i), (3) & (5)---Constitutional jurisdiction of High Court---Scope---Habeas corpus---Field Investigation Unit (FIU) of Armed Forces---Petitioner sought recovery of her husband who was alleged to have been in the custody of Field Investigation Unit of Army---Validity---Field Investigation Unit was under direct control of Armed Forces and any person in their custody could not be ordered to be produced before High Court---Jurisdiction of High Court was totally ousted by virtue of Art.199(3) of the Constitution, where-under High Court had no power to make order regarding person who was member of Armed Forces or was seeking any relief against them---Detenu allegedly was in custody of FIU, which was under the control of Armed Forces, jurisdiction of High Court was ousted---High Court directed the petitioner to approach concerned authorities for redressal of her grievance---Constitutional petition was dismissed in circumstances.

Mrs. Naheed Maqsood v. Federation of Pakistan and 4 others 1999 SCMR 2078; Muhammad Tufail Anwar v. Federation of Pakistan and 6 others 2008 PLC (C.S.) 1098; Messrs Nusrat Elahi and 41 others v. The Registrar, Lahore High Court, Lahore and 68 others 1991 MLD 2546; Ex. Lt. Col. Anwar Aziz (PA-7122) v. Federation of Pakistan and 2 others PLD 2001 SC 549; PA-33286 Captain Iftikhar Ahmed v. Federal Government, Ministry of Defence, Rawalpindi 2001 YLR 2679; Muhammad Idrees v. Federation of Pakistan 2010 YLR 2895; Federation of Pakistan and others v. Raja Muhammad Ishaque Qamar and another PLD 2007 SC 498; Sepoy Farmanullah Hashmi v. Government of Pakistan and 4 others 1998 MLD 1883; Group Captain Syed Muhammad Fazal v. Federation of Pakistan PLD 2012 Lahore 7; Ex. PA 33756 Lieut Muhammad Asjid Iqbal v. Federal Government Secretary-General Ministry of Defence Rawalpindi 2005 PCr.LJ 632 and Muhammad Mushtaq v. Federation of Pakistan 1994 SCMR 2286 fol.

Azmeer Javed Syed for Petitioner.

Rana Shamshad Khan, A.A.-G.

2013 P Cr. L J 23

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

ASHIQ HUSSAIN alias AKHTAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.6286-B of 2012, decided on 18th May, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 337-A(iii)/34---Shajjah-i-hashimah, common intention---Bail, grant of---Incorrect medical opinion---Police having knowledge of such opinion---Misconduct of police and complainant in regard to the case---F.I.R. had been recorded after a lapse of about thirty four (34) days---Injured was examined after about thirty (30) days of the incident but the doctor opined that probable duration between the injuries and examination was two to three hours, which should have been a sufficient ground for recommending the discharge of the case, but the police made the arrest and conducted investigation---Such conduct of the police spoke volumes about the misconduct on its part and also the mischievous conduct of the complainant---Even if the injured was presented for medical examination on the day alleged, the police should have registered the F.I.R. forthwith---In view of the conduct of the police and the complainant, bail petition of the accused was accepted and he was released on bail.

Haji Khalid Rehman for Petitioner.

Ch. Karamat Ali, Deputy Prosecutor-General Punjab and Inayat Ullah Khan, S.-I. along with record for the State.

2013 P Cr. L J 45

[Lahore]

Before Abdus Sattar Asghar, J

MUHAMMAD SHAHBAZ---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.1 of 2012 in Criminal Appeal No.354 of 2010, decided on 26th June, 2012.

Criminal Procedure Code (V of 1898)---

----S. 426 (1-A)(c)---Penal Code (XLV of 1860), S. 302(b)/392---Qatl-e-amd, robbery---Petition for suspension of sentence on ground of statutory delay in decision of appeal---Accused and co-accused, with their faces covered, allegedly tried to rob a motorcycle from the complainant party and during the scuffle when the face of the accused was revealed, he fired at the deceased and killed him---Contentions of the accused were that his appeal had been pending disposal for last more than two years, and that he was neither a previous convict nor a hardened, desperate or dangerous criminal---Validity---Accused was involved in a heinous offence of robbery and murder---Alleged act of the accused, prima facie, rendered him a desperate criminal not entitled to the concession of release on bail through suspension of sentence---Plea of the accused was hit by the exception manifested in the first proviso to S.426(1-A)(c), Cr.P.C.---Petition for suspension of sentence was dismissed, in circumstances.

Hashim Sabir Raja and Ch. Nawab Ali Mayo for Petitioner.

Ch. Muhammad Akram Tahir, DDPP for the State.

Muhammad Shahid for the Complainant.

2013 P Cr. L J 58

[Lahore]

Before Sagheer Ahmad Qadri and Shahid Hameed Dar, JJ

MUHAMMAD ALI ATHAR---Petitioner

Versus

DIRECTOR-GENERAL NAB PUNJAB, THOKAR NIAZ BAIG LAHORE and 2 others---Respondents

Writ Petition No.3412 of 2012, decided on 26th September, 2012.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9 & 10---Penal Code (XLV of 1860), Ss. 409/420/468/471/109---Constitution of Pakistan, Art. 199---Constitutional petition---Corruption and corrupt practices, criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment---Bail, grant of---Medical grounds---Accused suffering from multi infarcts dementia with history of brain haemorrhages and having poor sphincter control---Accused showed signs of fragility and poor health, when taken into custody---Reports of two different medical boards revealed that diseases from which accused was suffering required constant care including periodical tests and treatment, around the clock attendant, special diet and availability of quick medical advice etc. which were not available in jail---Accused was aged about 60 years and faced an ailment which required advance medical treatment, advice and psychotherapy and jail was not the place where such facilities could be provided---Constitutional petition was allowed and accused was released on bail.

Haji Meer Aftab's case 1997 SCMR 320 rel.

Naveed Rasool Mirza and Muhammad Anum Saleem for Petitioner.

Haroon-ur-Rasheed Cheema, Additional Deputy Prosecutor-General, NAB for Respondents.

Adnan Shuja Butt for the Complainant-Bank.

2013 P Cr. L J 95

[Lahore]

Before Shujaat Ali Khan, J

MUHAMMAD NASIR and others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Nos.3163-B and 4297-B of 2012, decided on 21st November, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 448, 452, 148, 149 & 511---Qatl-e-amd, attempt to commit qatl-e-amd, house-trespass, house-trespass after preparation for hurt, assault or wrongful restraint, rioting armed with deadly weapons, unlawful assembly, attempting to commit offences punishable with imprisonment for life or for a shorter term---Bail, grant of---Further inquiry---Affidavits of exoneration in favour of accused---Implication on basis of delayed supplementary statement--- Effect--- Alleged occurrence resulted in serious injuries to 22 persons while one person lost his life--- Accused persons were alleged to have injured two persons during the said occurrence---No specific role was attributed to accused persons in the F.I.R. and they were only attributed general role of firing---No injury was attributed to accused persons on the body of deceased---Accused persons were implicated on basis of supplementary statement of injured persons, recorded after a considerable delay, which made the case one of further inquiry--- Injured persons tendered their affidavits in respect of innocence of two of the accused persons and also recorded their statements before the Trial Court in such behalf---Said accused persons were entitled to grant of bail on such ground---One of the accused persons had already been declared innocent and discharge report to his extent was already in the pipeline---Case of accused persons was distinguishable from the case of co-accused persons, who were denied bail on the grounds that they were not exonerated by injured persons and they were also attributed role of firing at injured persons---Vicarious liability of accused persons for the offence could be determined by the Trial Court after recording of evidence---Accused persons were admitted to bail in circumstances.

Mehboob Alam v. The State and 2 others 2012 MLD 1723 ref.

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

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

----Ss. 497 & 173---Bail---Principles---Police opinion, reliance on---Scope---Opinion of police in routine was not binding on courts, however while deciding a bail application same could be taken into consideration.

Muhammad Ishaq v. The State and others 2012 SCMR 70; Maj (R.) Anjum Shafique v. The State 2012 PCr.LJ 1124; Mubeen Nawaz v. The State 2012 YLR 1088 and Mushtaq Ahmad v. The State 2012 YLR 1101 rel.

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

----S. 497---Second bail petition, filing of---Scope---Where earlier bail petition of accused was dismissed as withdrawn, there was no embargo for him to file second bail petition.

Muhammad Riaz v. The State 2002 SCMR 184 rel.

Javed Iqbal Hashmi for Petitioner (in Criminal Miscellaneous No.3163-B of 2012).

Mian Tahir Iqbal for Petitioners (in Criminal Miscellaneous No.4297-B of 2012).

Mehmood Hassan Khan Tareen, Deputy Prosecutor-General with Abid A.S.-I. for the State.

Ch. Umar Hayat for the Complainant.

2013 P Cr. L J 111

[Lahore]

Before Mazhar Iqbal Sidhu and Sayyed Mazahar Ali Akbar Naqvi, JJ

SHABBIR AHMED---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.10765-BC of 2012, decided on 28th November, 2012.

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

----Ss. 497(5) & 526---Penal Code (XLV of 1860), Ss. 365-A, 395 & 412---Kidnapping or abduction for extorting property, valuable security etc., dacoity, dishonestly receiving property stolen in the commission of dacoity---Bail, cancellation of---Trial Court giving definite opinion qua fate of case at bail stage---Effect---Transfer of case to another judge---Accused and co-accused persons were alleged to have kidnapped the abductee for ransom---Prima facie there was ample evidence on the record to establish that it was accused, who along with co-accused persons abducted the abductee, who was subsequently recovered and his statement was also recorded in such regard---Factum qua ransom amount was also brought on record---Trial Court had dismissed application of accused filed under S.23 of Anti-Terrorism Act, 1997 while appreciating material available on record---While deciding bail petition, Trial Court went beyond its jurisdiction and gave a definite opinion qua fate of the case with regard to applicability of S.365-A, P.P.C., which prejudiced the case of prosecution to a great extent---Notwithstanding the fact that bulk of prosecution evidence stood recorded, there existed exceptional circumstances to interfere in the matter, by cancelling bail granted to accused---Bail granted to accused was cancelled in circumstances and directions were given to transfer the case to another Judge of the Anti-Terrorism Court.

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

----S. 497(5)---Bail, cancellation of---High Court, powers of---Scope---Where bail granting order was without jurisdiction, having been passed without observing the mandatory provisions of law, High Court had ample powers to entertain an application under S.497(5), Cr.P.C.

Danyal Ijaz Chadhar for Petitioner.

Ch. Tariq Javed, DDPP for the State.

Waseem Ahmed Butt for Respondent No.2.

Muhammad Azam, S.-I. with police record.

2013 P Cr. L J 153

[Lahore]

Before Mazhar Iqbal Sidhu and Abdul Sami Khan, JJ

MUHAMMAD YASEEN and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.271 and Criminal Revision No.155 of 2010, heard on 21st June, 2012.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Accused was only attributed chest injury, whereas all of his co-accused were attributed only firing at the deceased, but both complainant and other prosecution witnesses, while appearing in the court, not only attributed single firearm injury to each co-accused, but also specified the part of body of the deceased, where the deceased sustained injuries by the hands of co-accused---Such glaring and dishonest improvement, had been made by said persons to bring the ocular account in line with the medical evidence, so as to prove the case against accused---Said improvement, spoke volumes of falsity and dishonesty---Evidence adduced by prosecution witnesses was not worthy of credence, to be believed against accused---Deceased was brother-in-law of the complainant---Presence of said interested witness at the place of occurrence, was highly doubtful---After passing a considerable time, the eye-witnesses had pointed the part of body of the deceased, which sustained firearm injury and also attributed each and every injury to all accused---Such fact alone was sufficient to create doubt in the prosecution story---Ocular account furnished by dishonest and related eye-witness, could not be believed---Motive was not attributed to accused, but was attributed to co-accused---Medical evidence, did not provide support to ocular account---Nothing having been recovered from the accused during the investigation, empties recovered in the case, were of no consequence and could not provide corroboration to the ocular account---Prosecution having failed to prove its case against accused beyond shadow of reasonable doubt, accused was acquitted of the charge while extending him benefit of doubt and he was released from the jail, in circumstances.

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

----S. 302(b)--- Qatl-e-amd--- Appreciation of evidence--- Medical evidence---Medical evidence was only used to corroborate the ocular evidence with respect to seat of injury, time of occurrence and weapon of offence etc., but same itself did not constitute any corroboration qua the accused for proving his culpability.

Muhammad Sharif and another v. The State 1997 SCMR 866 rel.

M.A. Hayat Haraj for Appellants.

Mehr Ahmad Raza for the Complainant.

Munir Ahmad Sia, D.P.-G. for the State.

Date of hearing: 21st June, 2012.

2013 P Cr. L J 179

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

MUHAMMAD SHARIF SHAHANI---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.29 of 2012, heard on 28th June, 2012.

(a) Emigration Ordinance (XVIII of 1979)---

----Ss. 17, 18 & 22---Prevention and Control of Human Trafficking Ordinance (LIX of 2002), S.3---Inducing a person for sending him abroad for employment and receiving money from him for that purpose, human trafficking---Appreciation of evidence---Accused was involved in 21 cases of similar nature and in all cases he had been convicted and sentenced---Said cases were decided against the accused on the basis of his confessional statement recorded in each of the case---Contentions of counsel for accused was that prosecution evidence was not turning up and that accused was induced to make confession with the undertaking that he would be sentenced for the period which he had already undergone; were misconceived for the reason that if prosecution witnesses were not turning up, then accused had an option to seek his acquittal by filing an application under the relevant provisions of law, which opportunity he did not avail before the Trial Court---Submission of accused that he was induced to make statement, was not evident from the record; as he while making the confessional statement, had pleaded that leniency in awarding the punishment be taken--- Trial Court keeping in view the pendency of 21 cases of similar nature against accused, deemed it appropriate to award the sentence, which was neither illegal nor was harsh in any manner---No case for interference was made out in circumstances, however, it being too harsh to direct to run all the sentences consecutively, that part of the judgment of the Trial Court was modified, with the observation that the sentences awarded to accused would run concurrently.

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

----S. 544-A---Compensation---Trial Court had awarded Rs.800,000 as compensation to the complainant under S.544-A, Cr.P.C.; such like compensation was the expenses which the complainant had suffered for producing the witnesses, and for his own offences in the court on the dates fixed---In the present case, witnesses did not turn up in the court to make statements, no compensation, in circumstances, could be granted under S.544-A, Cr.P.C.

Raja Khalid Asghar for Appellant.

Sh. Ghias-ul-Haq, Standing Counsel along with Kashif Hussain Alvi, S.-I., FIA Multan with record for the State.

Date of hearing: 28th June, 2012.

2013 P Cr. L J 200

[Lahore]

Before Syed Iftikhar Hussain Shah, J

Mst. SAMREEN FATIMA---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION CHOUNTRA, and 2 others---Respondents

Criminal Revision No.185 of 2012, decided on 18th July, 2012.

Criminal Procedure Code (V of 1898)---

----S. 491---Guardians and Wards Act (VII of 1890), S. 25---Habeas corpus petition for recovery of minor---Compromise between mother and father of the minor---Mother agreeing to hand over the minor to the father---Mother contracting second marriage---Right of Hizanat---Scope---Court below dismissed mother's (petitioner) petition for recovery of minor on grounds that parties had already arrived at a settlement (compromise) by which the father (respondent) was given custody of the minor through his application under S.25 of the Guardians and Wards Act, 1890, and because the mother had contracted a second marriage and the father had not---Validity---Application of the father under S.25 of the Guardians and Wards Act, 1890 was accepted after the parties compromised by submitting their affidavits in court and he was given custody of the child---Mother had given the minor to the father herself in the light of the compromise and she had also contracted a second marriage, therefore, her conduct disentitled her from filing present revision petition before High Court---Mother could assail the order of the court below by filing regular appeal as provided under the law instead of adopting a novel procedure by making a petition under S.491, Cr.P.C. for the recovery of her minor son---Revision petition was dismissed, in circumstances.

Iffat Mir v. Mobeen Qasim Mir 1991 PCr.LJ 2372; Rubina Ali v. Rafaqat Ali and others 1997 MLD 2066; Mst. Shehnaz Bibi v. Muhammad Akram and others 1995 PCr.LJ 307; Mst. Dilbar Jan v. Khan Muhammad 1992 PCr.LJ 683; Saadia Ahmed v. The State and 3 others 1996 MLD 30 and Mst. Hameed Mai v. Irshad Hussain PLD 2002 SC 267 distinguished.

Muhammad Faiz Ahmad Cheema for Petitioner.

2013 P Cr. L J 226

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

RIZWAN ZAFAR---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.15294-B of 2012, decided on 21st November, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/148/149/109---Qatl-e-amd, rioting armed with deadly weapons, unlawful assembly, abetment---Bail, grant of---Further inquiry---Implication on basis of belated supplementary statement---Prosecution had not denied that two unknown persons also participated in the occurrence---Accused was introduced in the present case through a supplementary statement, which was recorded with a delay of about three months, thus there was every possibility that name of accused had been introduced in the case after due deliberation and consultation---Complainant party had admitted in the F.I.R. that there was animosity between the parties---Identification parade lost its efficacy in the presence of the supplementary statement as said parade was conducted after the nomination of the accused in the case---No specific injury on the person of the deceased had been attributed to accused---Question as to whether fires made by accused hit the deceased and whether they proved fatal, were to be dealt with by the Trial Court---Police had declared six of the nominated accused as innocent because of which prosecution story regarding participation of accused in the occurrence came under a cloud---Case was one of further inquiry---Accused was admitted to bail accordingly.

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

----S. 161---Implication of accused on basis of supplementary statement---Scope---Time and date of recording supplementary statement was to be established beyond any shadow of doubt as in the absence of such proof there was chance of false implication of a person in the criminal case, that too after deliberation and consultation.

Khalid Javed and another v. The State 2003 SCMR 1419 rel.

Rana Ijaz Ahmad Khan for Petitioner.

Muhammad Ishaque, D.P.-G. with M. Yousaf, S.-I. for the State.

Muhammad Asghar Gill for the Complainant.

2013 P Cr. L J 252

[Lahore]

Before Shahid Hameed Dar, J

Sheikh MUHAMMAD SADIQ---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.818-B of 2012, decided on 2nd July, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 155(2)---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---Bail, refusal of---Accused charged with a combination of cognizable and non-cognizable offences---Permission to be obtained by the police from the Magistrate in circumstances---Civil and criminal litigation proceeding simultaneously---Scope---Right to bail for offences falling within prohibitory clause of S.497(1), Cr.P.C.---Scope---Accused owed a sum of money to the complainant in settlement of which he executed a sale deed qua a house in favour of the complainant promising to deliver the possession later on---Subsequently the accused allegedly attested a sale deed of the same house in favour of one of the co-accused, who in turn transferred the house in the name of his wife--- Contentions of the accused were that date and time of alleged occurrence was unknown as was evident from the F.I.R.; that the property in question was the subject of pending civil litigation between the parties; that Ss.468 and 471, P.P.C. were bailable whereas section 468 was non-cognizable; that the co-accused, who was the principal accused of the case had already been granted bail, and that offences alleged did not fall within the prohibitory clause of S.497, Cr.P.C.---Validity---Circumstances of the case revealed that the accused kept both the complainant and the co-accused engaged simultaneously so as to leave each of them labouring under the impression that their part of the deal was legally perfect and their claim complete---Act of the accused was sheer fraud and forgery by which he swindled a huge amount from the complainant and probably also from the co-accused and his wife---Where there was blend of non-cognizable and cognizable offences, the police did not necessarily have to obtain permission from the Magistrate for conducting investigation---Prosecution, therefore, could not be blamed in the present case, if they had not gone for the invocation of S.155(2), Cr.P.C.---Accused had categorically admitted his liability to pay an amount to the complainant in the agreement that he had prepared, which directly corroborated the claim of the complainant as mentioned in the F.I.R.---Pendency of civil suits between the parties was no ground to hold that the criminal proceedings against the accused by way of present F.I.R. could not be taken to their legitimate end---Civil and criminal proceedings could proceed side by side inter se---Rule that accused had a right to bail where offences did not fall within the prohibitory clause of S.497(1), Cr.P.C., was not an inelastic rule---Bail application of the accused was dismissed in circumstances.

Raja Pervaiz Akhtar v. State 2000 YLR 539; Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Ubedullah v. The State 2003 PCr.LJ 1921 ref.

Sardar Shaukat Hayat Khan for Petitioner.

Rana Kashif Saleem Arfaa, Law Officer with Akram S.-I. for the State.

Mazhar Iqbal Chaudhary for the Complainant.

2013 P Cr. L J 267

[Lahore]

Before Muhammad Yawar Ali, J

WARIS ALI RAZA---Petitioner

Versus

The STATE and 4 others---Respondents

Writ Petition No.15283 of 2012, heard on 19th June, 2012.

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

----S. 54---When Police may arrest without warrant---Scope---No one can be arrested under S.54, Cr.P.C. unless the Police authorities have received credible information or have reasonable suspicion qua the person sought to be arrested---Section 54, Cr.P.C. has not been enacted to cater for the whims of a Police Officer.

Syed Mohsan Ali Shah v. S.H.O. P.S. Garh Maharaja Tehsil Shorkot District Jhang 1995 MLD 771 ref.

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

----S. 54--- When police may arrest without warrant--- Object and scope---Words "reasonable suspicion" used in S.54, Cr.P.C. do not mean that a Police Officer can proceed on mere conjectures and surmises---Object of S.54, Cr.P.C. is to give wide powers to Police Officer to arrest any person involved in the commission of a cognizable offence, if he has a reasonable basis to suspect his involvement in a cognizable offence.

Mazharuddin v. The State 1998 PCr.LJ 1035 ref.

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

----Ss. 324/353/365/427/283/395/148/149---Criminal Procedure Code (V of 1898), S.54---Constitution of Pakistan, Art.199---Constitutional petition---Attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, kidnapping or abduction for wrongful confinement, dacoity, rioting armed with deadly weapons---Action of the Police authorities causing the arrest of the accused and holding of an identification parade had been impugned in the petition---Four accused persons had been apprehended by the Police authorities after having received information that they had abducted a Police Officer and had also pelted stones at the Police---Contents of the Case Diary had revealed the said facts, which were not to be dilated upon at length, lest it might prejudice the case of accused---Holding of an identification parade was a part of the process of investigation, which could not be stopped at this stage---No directions could even be given to the Police Officials as to how and in what manner investigation in a case was to take place---High Court while seized of a petition filed under Art.199 of the Constitution could not assume the role of an Investigator, as the authority to register and investigate a criminal case vested in the Police and not in a court---Petition was dismissed in circumstances.

Syed Mohsan Ali Shah v. S.H.O. P.S. Garh Maharaja Tehsil Shorkot District Jhang 1995 MLD 771; Mazharuddin v. The State 1998 PCr.LJ 1035 and Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142 ref.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Investigation---High Court while seized of a petition filed under Art.199 of the Constitution cannot assume the role of an Investigator, as the authority to register and investigate a criminal case vests in the Police, and not in a court.

Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142 ref.

Abid Hassan Minto for Petitioner.

Miss Samia Khalid, Assistant Advocate-General Punjab and Muhammad Iqbal, Inspector for the State.

Date of hearing: 19th June, 2012.

2013 P Cr. L J 279

[Lahore]

Before Ch. Muhammad Younis and Ali Baqar Najafi, JJ

FORCE COMMANDER, REGIONAL DIRECTORATE ANF, RAWALPINDI---Petitioner

Versus

JUDGE SPECIAL COURT (CNS) and others---Respondents

Criminal Revision No.167 of 2012, decided on 9th July, 2012.

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

----S. 338---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 14 & 15---Possession of narcotic, aiding, abetment or association in narcotic offences---Statement of approver, recording of---Scope---Competency of Special Prosecutor (Anti-Narcotics Force) to file application for declaring an accused as approver---Scope---Accused and co-accused were allegedly involved in granting quotas of Ephedrine against the rules---Application filed by Special Prosecutor (Anti-Narcotics Force) for declaring the co-accused as an approver so as to record his statement was dismissed by the Trial Court on the grounds that complete challan had not been submitted; that the trial had not commenced so far; that the application pertaining to the pardon so as to declare the co-accused as an approver had not been moved by the In-charge of prosecution, and that the proposed statement of the co-accused had not been appended with the application---Validity---Statement of the approver could be recorded during the investigation or inquiry or trial, therefore, there was no condition precedent attached to the statement of the approver under S.338, Cr.P.C., and same could be recorded at any time before the judgment---Special Prosecutor (Anti-Narcotics Force) was undoubtedly the In-charge of prosecution and when a pardon had been tendered by the competent authority, Special Prosecutor was fully competent to move the application for declaring the co-accused as an approver---Record showed that statement of the co-accused was available on the record and had been appended with the petition filed by the Special Prosecutor---Impugned order of the Trial court, therefore, was not based on sound reasoning---Revision petition was accepted, impugned order was set aside and the Trial Court was directed to proceed with the matter as per request of the Special Prosecutor for declaring the co-accused as approver in the case on the conditions to be set out by the Trial Court and to record the statement of the approver in accordance with the law.

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

----S. 338---Accused pardoned by the competent authority as an approver--- Co-accused challenging the same--- Validity--- Where approver had been given pardon by the competent authority, same could not be challenged by the co-accused as they would be at liberty to cross-examine the approver.

2005 YLR 1728 rel.

Barrister Waseem Ahmad Qureshi, Special Prosecutor (ANF) for Petitioner.

Muhammad Ilyas Siddiqui and Ahmad Nawaz Bhatti for Respondent No.2.

Shah Khawar for co-accused Makhdoom Shahab-ud-Din.

Abid Zulfiqar, Deputy Director, (ANF).

2013 P Cr. L J 297

[Lahore]

Before Shahid Hameed Dar, J

RASHID ALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 5661-B of 2012, decided on 13th June, 2012.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302/396/412---Qatl-e-amd, dacoity with murder, dishonestly receiving property stolen in the commission of dacoity---Bail, refusal of---Allegation against the accused and co-accused was that they committed dacoity at the house of the deceased, who was murdered for showing resistance during the commission of the dacoity---Accused and co-accused allegedly fled the crime scene in a car, which was intercepted by the police on the same day of the occurrence, whereafter a test identification parade was conducted---Contentions of the accused were that he had been involved in the matter due to suspicion; that he was not found armed during the time of his arrest; that evidence regarding test identification parade was contradictory, and that recovery of cash and National Identity Card (NIC) of the complainant from the accused hardly implicated him as said evidence had been fabricated by the prosecution---Validity---Complainant and other victims of the dacoity had given a brief description of the external features of the accused persons with the contention that they could identify them---During the course of the identification parade, one of the victims of the dacoity correctly picked up the accused---Deceased had been murdered for the reason that he showed resistance during an occurrence of dacoity committed by the accused and his co-accused---Trial of the accused had commenced and four prosecution witnesses had already been examined by the Trial court---Offences with which the accused was charged, caught the prohibition of S.497(1), Cr.P.C.---No circumstances existed to believe that the case of the accused called for further probe into his guilt within the meaning of S.497(2), Cr.P.C.---Bail application of the accused was dismissed, in circumstances.

Rehmat Ullah v. The State and another 2011 SCMR 1332 rel.

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

----Ss. 302/396/412---Qatl-e-amd, dacoity with murder, dishonestly receiving property stolen in the commission of dacoity---Participation in a dacoity---Liability---Scope---Individual role of an accused, in cases of dacoity, did not matter much and every participant of such a crime, regardless of his role, would be an accused in equal degree.

Muhammad Ahsan Bhoon for Petitioner.

Miss Muqadass Tahira, Additional Prosecutor-General Punjab with Ghulam Qadir, S.-I. for the State.

Basharat Ali Gill for the Complainant.

2013 P Cr. L J 312

[Lahore]

Before Abdus Sattar Asghar and Amin-ud-Din Khan, JJ

Khawaja MUREED HUSSAIN---Petitioner

Versus

GOVERNMENT OF THE PUNJAB, HOME DEPARTMENT, LAHORE and 6 others---Respondents

Writ Petition No.3541 of 2011/BWP, decided on 9th April, 2012.

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

----S.11-EE & Fourth Sched.---Constitution of Pakistan, Arts. 10(4) & 199--- Constitutional petition--- Security for good behaviour---Safeguards as to detention---Scope---Persistent inclusion of name of accused (petitioner) in the list under Fourth (4th) Schedule of Anti-Terrorism Act 1997, for an indefinite period beyond three years---Validity---Provincial government (respondent) had not been able to bring any speck of material to substantiate their allegations against the accused, and in the absence of any tangible material justifying the inclusion of accused's name in the list under Fourth (4th) Schedule of Anti-Terrorism Act, 1997, he could not be legally required to execute a bond with sureties for a period exceeding three years as stipulated in S.11-EE(2)(a) of the Anti-Terrorism Act ,1997---Persistent inclusion of the name of the accused in the list under Fourth (4th) Schedule for indefinite period beyond three years was prima facie violative to the provisions of Art.10(4) of the Constitution, which furnished sufficient indiscriminate protection of law to a citizen---Constitutional petition was allowed and Provincial Government was directed to delete the name of the accused from the list under Fourth (4th) Schedule of the Anti-Terrorism Act, 1997.

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

----S. 11-EE & Fourth Sched.---Incorporation of name of accused in the list prepared under Fourth (4th) Schedule of Anti-Terrorism Act, 1997---Scope---Availability of concrete material and cogent reason to prima facie establish that the person was an activist, office-bearer or an associate of a proscribed organization, or an organization suspected to be involved in terrorism or sectarianism was sine qua non to incorporate the name of such person in the list to be prepared under Fourth (4th) Schedule of the Anti-Terrorism Act, 1997.

(c) Constitution of Pakistan---

----Art. 10(4)---Safeguards as to arrest and detention---Expression 'preventive detention', object of---Expression 'preventive detention' was used in Art.10(4) of the Constitution with an object to combat anti-social and subversive elements from endangering the public safety and security of the State as well as to ensure protection to the personal liberty of a citizen.

Government of East Pakistan v. Mrs. Rowshan Bijaya Shaukat Ali Khan PLD 1966 SC 286 rel.

Rana Hassan Ali Mehmood for Petitioner.

Muhammad Tahir Saeed Ramay, Assistant Advocate-General for the State.

Date of hearing: 9th April, 2012.

2013 P Cr. L J 323

[Lahore]

Before Ijaz Ahmad Chaudhry, C.J. and Shahid Hameed Dar, J

AHMAD ALI and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No.1282 and Criminal Revision No.729 of 2008, heard on 18th October, 2011.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Eye-witnesses had failed to establish their presence at the scene of occurrence---Previous enmity between the parties, if any, had been patched up---Statements of eye-witnesses were full of contradictions and discrepancies, which had made their testimony highly improbable and non-believable---F.I.R. had been recorded much later than the time shown therein---Post-mortem examination of the deceased had been delayed for 21 hours without any explanation--- Medical evidence had not corroborated the ocular testimony---Eye-witnesses had not seen the occurrence, nor they had any purpose to be present there---Involvement of accused in the case was skeptical and the allegation against him qua the murder of the deceased was speculative---Ocular account was brushed aside being false, highly discrepant and unreliable, having been rendered by the inimical and interested witnesses---Prosecution had failed to establish the motive against the accused---Evidence of recovery of fire arms at the instance of accused and the positive report of the Forensic Science Laboratory hinting at matching of the crime empties with the said fire arm, was of no consequence, when the prosecution case against the accused, otherwise, stood disproved---Accused was acquitted in circumstances.

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

----S. 302(b)--- Qatl-e-amd--- Appreciation of evidence--- Recovery---Principle---Evidence of recovery of incriminating articles from the possession of accused cannot be considered a conclusive circumstance to base conviction thereon against the accused, if the prosecution case against him, otherwise, stands disproved.

Rai Bashir Ahmad assisted by Mian Mansoor Ahmad for Appellants.

Tariq Javaid, Deputy District Public Prosecutor for the State.

Ch. Nazir Ahmad Kamboh for the Complainant (Petitioner in Criminal Revision No.729 of 2008).

Date of hearing: 18th October, 2011.

2013 P Cr. L J 342

[Lahore]

Before Mazhar Iqbal Sidhu, J

ALLAH DITTA---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.2601-B of 2012, decided on 3rd April, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324/452---Attempt to commit qatl-e-amd, house trespass after preparation for hurt, assault or wrongful confinement---Bail, grant of---Further inquiry---Day before the lodgment of present F.I.R., sister of accused had been allegedly murdered by the nephew of the complainant and accused was cited as a witness of the said occurrence---Injury allegedly attributed to the accused was on a non-vital part of the body, and said injury was declared as falling under S.337-F(iii), P.P.C. which entailed maximum punishment of three years along with daman---Police investigation stated that accused was empty-handed at the place of occurrence and that he had not made any fire shot at the injured---False involvement of accused on account of previous enmity could not be ruled out---Material available on record made out a case of further inquiry---Bail petition of accused was allowed and he was admitted to bail.

Saifullah Bhatti for Petitioner.

Imran Ch. for the Complainant.

Shahid Bashir, D.P.-G. with Idrees, S.I. for the State.

2013 P Cr. L J 358

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

ZULFIQAR ALI and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos.1963, 1988 of 2006 and Murder Reference No.57 of 2007, heard on 7th February, 2012.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Four co-accused had been acquitted by Trial Court on benefit of doubt and their acquittal had attained finality---Question was, whether the evidence disbelieved qua the acquitted co-accused could be believed against the accused persons---Motive for the occurrence had been attributed not only to the accused but also to the acquitted co-accused---Reports of the Forensic Science Laboratory in respect of the rifles recovered from the accused were only to the extent that they were in working condition---Injuries on the person of the deceased had not been specifically assigned to any of the accused and the same had been jointly attributed to the accused as well as their acquitted co-accused---No independent corroboration was available on record from any quarter against the accused persons to distinguish their case from that of acquitted co-accused---Accused were also extended benefit of doubt and acquitted in circumstances.

Iftikhar Hussain and another v. State 2004 SCMR 1185; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758; Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502; Twaib Khan and another v. The State PLD 1970 SC 13; Bakka v. The State 1977 SCMR 150; Khairu and another v. The State 1981 SCMR 1136; Ziaullah v. The State 1993 SCMR 155; Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11; Shahid Raza and another v. The State 1992 SCMR 1647; Irshad Ahmad and others v. The State and others PLD 1996 SC 138; Ahmad Khan v. The State 1990 SCMR 803 and Akhtar Ali and others v. The State 2008 SCMR 6 ref.

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

----S. 302(b)--- Qatl-e-amd--- Appreciation of evidence--- Ocular testimony believed qua some accused and disbelieved qua other accused---Principle---Courts keeping in view the prevailing circumstances and for safe administration of justice follow the principle of appraisal of evidence i.e., sifting of grain out of chaff i.e. if an ocular testimony of a witness is to be disbelieved against a particular set of accused and is to be believed against another set of accused facing the same trial, then the court must search for independent corroboration on material particulars, in the latter case.

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

Shaikh Shahid Waheed for Appellants (in Criminal Appeal No.1963 of 2006).

Ch. Anwar ul Haq Pannun for Appellants (in Criminal Appeal No.1988 of 2006).

Chaudhary Muhammad Mustafa, Deputy Prosecutor-General for the State.

Chaudhary Tariq Mahmood Sulehriya for the Complainant.

Date of hearing: 7th February, 2012.

2013 P Cr. L J 386

[Lahore]

Before Kh. Imtiaz Ahmad, J

TALLAT MEHMOOD---Petitioner

Versus

The STATE and 2 others---Respondents

Writ Petition No.2018 of 2012, decided on 19th September, 2012.

Pakistan Army Act (XXXIX of 1952)---

----S. 2(1)(d)---Official Secrets Act (XIX of 1923), S. 3---Pakistan Prisons Rules, 1978, Rr. 114, 201-A & 212---Constitution of Pakistan, Art.199---Constitutional petition---Remissions---Petitioner who was convicted for espionage and anti-State activities, sought remissions under S.212 of Pakistan Prisons Rules, 1978, for donating blood---Validity---Even if anything was contained in Pakistan Prisons Rules, 1978, even then provisions of rule 201 of Pakistan Prisons Rules, 1978, would prevail---Person convicted under the charge of espionage and anti-State activities would not be entitled to ordinary and special remission unless Federal Government or Provincial Government or competent authorities made a specific order in writing in that behalf and provisions of rule 212 of Pakistan Prisons Rules, 1978, were excluded---In view of special embargo contained in Rule 201-A of Pakistan Prisons Rules, 1978, petitioner was not entitled for remissions as contained in Rule 212 of Pakistan Prisons Rules, 1978---Petition was dismissed in circumstances.

Shah Hussain v. The State PLD 2009 SC 460 ref.

Anwar Afridi for Petitioner.

Nadeem Akhtar Bhatti, A.A.-G. with Mazhar Khan, S.-I. for the State.

2013 P Cr. L J 394

[Lahore]

Before Sagheer Ahmad Qadri and Ali Baqar Najafi, JJ

MUHAMMAD HANIF ABBASI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1400-B of 2012, decided on 1st November, 2012.

Criminal Procedure Code (V of 1898)---

----S. 498---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 16---Ad interim pre-arrest bail, confirmation of---Ephedrine quota case---Allegation against the accused was that his company was allotted 500 kilograms quota of Ephedrine which was not used for the preparation of medicine rather same was sold to smugglers---Application for grant of licence in respect of Ephedrine, its quota and subsequent supply in the shape of manufactured medicine were not denied by the concerned companies/firms or their officials---Regarding misuse of allotted quota, in the light of the available record, investigating officer was still in the process of collecting evidence---No evidence was available to connect the accused with the commission of an offence falling under Ss.6, 7 and 8 of Control of Narcotic Substances Act, 1997, and in view of the allegations and evidence collected so far, at best prosecution was trying to make out a case for violation of S.16 of Control of Narcotic Substances Act, 1997 , which was a bailable offence---Case was one of further inquiry---Ad interim pre-arrest bail already granted to accused was confirmed in circumstances.

Sardar Muhammad Ishaq Khan for Petitioner.

Shahid Abbasi, Special Prosecutor for ANF.

Abid Zulifqar S.P. (Investigation) and Syed Imtiaz Hussain Shah, S.I./I.O. for ANF with record for the State.

2013 P Cr. L J 403

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Mazhar Iqbal Sidhu, JJ

MUHAMMAD ASHRAF---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.2541-M of 2012 in Criminal Appeal No.154 of 2007, decided on 2nd October, 2012.

Criminal Procedure Code (V of 1898)---

----S. 426(2B)---Penal Code (XLV of 1860), S. 302(b)---Qatl-e-amd---Suspension of sentence pending disposal of petition for leave to appeal before the Supreme Court---Release on bail---Trial Court convicted the accused under S.302(b), P.P.C. and sentenced him to death---High Court converted death sentence awarded by Trial Court into life imprisonment---Accused assailed judgment of High Court before the Supreme Court, which granted leave to appeal---Contentions of accused were that while granting leave to appeal Supreme Court had observed in its judgment that case of accused was identical to that of a co-accused, who had already been acquitted by the Trial Court; that he was in jail for the last about seven years, and keeping in mind that his sentence had been reduced to life imprisonment, his sentence should be suspended pending disposal of his petition for leave to appeal---Validity---Supreme Court had granted leave to appeal with the observation that co-accused who had been attributed a role identical to that of the co-accused, had been acquitted by the Trial Court---Accused was behind bars since date of his arrest (about seven years)---Sentence of accused was suspended pending disposal of his petition for leave to appeal before the Supreme Court and he was admitted to bail---Petition was allowed accordingly.

Abdul Khaliq Safrani for Petitioner.

Tariq Javed, DDPP for the State.

2013 P Cr. L J 412

[Lahore]

Before Rauf Ahmad Sheikh and Shahid Hameed Dar, JJ

MUHAMMAD GHALIB and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.79, Criminal Revision No.112 and Murder Reference No.299 of 2004, heard on 18th October, 2010.

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

----Ss. 302(b)/324/34/337-F(iii)/337-D---Qatl-e-amd, attempt to commit qatl-e-amd, common intention, ghayr-jaifah-mutalahimah, jaifah---Appreciation of evidence---Incident reported to police promptly---Motive for occurrence established---Enmity between parties admitted---Medical evidence corroborating ocular account---Defence plea not believable---Effect---Accused persons while armed with weapons allegedly ambushed the deceased persons and the injured witness---Motive for the occurrence was strained and tense relations between the parties spanning over a period of 4 to 5 years---Although complainant was brother of the deceased persons and injured witness was also related to the deceased, but their evidence could not simply be discarded due to their relationship--- Matter was reported to the police within two hours---Enmity between the parties stood admitted and prosecution had successfully proved the motive for the occurrence---Presence of injured witness at the place of occurrence could not be questioned and he had perfectly corroborated his stance before the police, as contained in his statement under S.161, Cr.P.C.---Medical evidence provided corroboration to the witnesses of the ocular account as both the deceased persons and the injured witness had received multiple sharp edged injuries---Duration of injuries, time elapsed between injuries and death, and between death and post-mortem examination were all in line with the ocular account furnished by complainant and injured witness---Medical officers were subjected to detailed cross-examination but no infirmity was found in their statements---Regarding recovery of weapons at instance of accused persons, report of Chemical Examiner revealed that weapons were stained with blood and scrapings thereof sent to Serologist had been found to be of human origin---Weapons recovered from accused persons and scrapings thereof, had been received in sealed parcels by the relevant Laboratories---Defence did not suggest that weapons were sent to the relevant Laboratories after having been tampered with in any manner---One of the accused took the defence plea that deceased and injured witness while armed launched an attack on his house and attacked his wife and mother-in-law---Said accused claimed that he alone managed to club and stab the deceased and injured witness in self-defence, however such a defence plea seemed unnatural and preposterous as said accused could not show even a single scratch on his person nor on the person of his wife or mother-in-law, who even otherwise were not taken into custody by the police nor examined by a medical officer/doctor---Appeal was dismissed in circumstances and conviction and sentences recorded by Trial Court were confirmed.

Anwar Shameem and another v. The State 2010 SCMR 1791 rel.

(b) Criminal trial---

----Post-mortem examination, evidentiary value of--- Non-existence of pictorial diagrams/sketches--- Effect--- Non-existence of sketches did not undermine the intrinsic value of post-mortem examination reports nor could such reports be thrown away due to such an omission.

Muhammad Tanvir Ch. and Sayeda B.H. Shah for Appellants.

Ch. Abdul Aziz for Respondents.

Muhammad Nazeer Abbasi, Standing Counsel.

Date of hearing: 18th October, 2010.

2013 P Cr. L J 436

[Lahore]

Before Mazhar Iqbal Sidhu, J

GHULAM AHMAD alias MUHAMMAD AAMER and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No.1312 and Criminal Revision No.1026 of 2011, heard on 24th October, 2012.

Penal Code (XLV of 1860)---

----Ss. 324/337-F (iii)/337-F(v)---Attempt to commit qatl-e-amd, ghayr-jaifah-mutalahimah, ghayr-jaifah-munaqqillah--- Appreciation of evidence---Incident reported belatedly---Accused and co-accused persons, while armed with firearms, allegedly launched an attack on the complainant party---Accused was specifically alleged to have fired repeatedly at one of the injured prosecution witnesses---Alleged motive behind the occurrence was that 15/16 years prior to the present incident, father of accused was murdered by a person from the complainant side--- Trial Court convicted accused under Ss.324, 337-F(iii) and 337-F(v), P.P.C.---Validity---Matter was reported to the police after a delay of 56 hours without any reasonable explanation---Injured persons were medically examined on the day of the incident within the shortest span of time and police was also available at the hospital, but neither the complainant nor any eye-witness including injured persons made any statement at that time to the effect that injuries were caused by the accused and co-accused persons---Injured prosecution witness, who allegedly received injuries at the hands of the accused, categorically admitted in his cross-examination that he made a statement before the investigation officer for the first time after 10/12 days of the incident---Complainant and witnesses, who were not injured, had time to report the matter to the police at the earliest but they did not do so---Although one of the injured persons had deposed against the accused but his statement could not be taken as the gospel truth in the circumstances of the case---Motive for the occurrence did not appeal to reason as the person from the complainant side, who was alleged to have murdered father of accused, was acquitted and besides a period of two decades had passed since that incident---Recovery of weapon was inconsequential in absence of any positive report---Prosecution had not been able to prove its case against accused beyond any reasonable shadow of doubt---Appeal was allowed, conviction and sentence imposed on accused was set-aside and he was acquitted of the charge.

Muhammad Imran Butt for Appellants.

Muhammad Tanvir Chaudhry for the Complainant (in Criminal Revision No.1026 of 2011).

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

Date of hearing: 24th October, 2012.

2013 P Cr. L J 487

[Lahore]

Before Sardar Tariq Masood, J

ALI ATHAR---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 6653/B of 2012, decided on 3rd July, 2012.

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

----S. 497(2)--- Penal Code (XLV of 1860), Ss. 337-A(i)/337-A(iii)/ 337-L(2)/34/337-N(2)---Shajjah-i-khafifah, shajjah-i-hashimah, other hurt, common intention---Bail, grant of---Further inquiry---Disclosing fact of a dismissed pre-arrest bail application at the time of filing subsequent application for post-arrest bail---Scope---Discretionary punishment of Ta'azir under S.337-N(2)---Scope---Enlargement of accused on bail subject to payment of Arsh and Daman---Accused was alleged to have launched an attack upon the complainant outside a court---Pre-arrest bail of accused was dismissed by the High Court---Subsequent post-arrest bail was filed before the Magistrate stating the same to be first post-arrest bail application but without disclosing dismissal of earlier pre-arrest bail application---Magistrate allowed bail to the accused but complainant filed an application for cancellation of bail, which was accepted and bail granted by the Magistrate was cancelled on the grounds that the accused had concealed certain facts from the court and also remained an absconder for six years---Contentions of the accused were that there was enmity and litigation going on between the parties; that the accused was previous non-convict hence he could not be convicted under Ta'azir due to the bar under section 337-N(2), and that primary punishment under S.337-A(iii) was 10% of the Diyat amount---Validity---Certificate attached with the bail petition filed before the Magistrate specifically mentioned that same was the first post-arrest bail application and admittedly prior to that no petition for post-arrest bail was filed by the accused---Although at the time of filing post-arrest bail before the Magistrate the accused had not mentioned the fact that his earlier pre-arrest bail had been declined by the High Court but the complainant party had also not disclosed such fact before the Magistrate---Bail could not be withheld on such technicality when otherwise accused became entitled for the concession of bail---No grounds were available with the court below to have cancelled the bail granted to the accused by the Magistrate---Bail could not be withheld on the ground that accused remained a fugitive from law, if otherwise he was entitled for concession of bail---Regarding merits of the case, the accused was empty-handed and had not used any lethal weapon---All injuries caused to the complainant were simple in nature except for the injury on nose declared as shajjah-i-hashimah [337-A(iii), P.P.C], which carried the mandatory punishment of Arsh and the discretionary punishment of imprisonment for 10 years as Ta'azir, which discretionary punishment was to be awarded to an offender who was a previous convict, habitual or hardened, desperate or dangerous criminal or had committed an offence in the name or pretext of honour---Neither there was any allegation nor any evidence on the record to hold that the accused was either previously convicted, habitual or hardened, desperate or dangerous criminal or the offence had been committed by him in the name or on the pretext of honour---Case of the accused called for further inquiry---Bail petition of the accused was allowed subject to his depositing of requisite amount of Arsh under S.337-A(iii), P.P.C. and Daman for the remaining injuries with the Trial Court.

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

----Ss. 497/498---Post-arrest bail---Principles---Rejection of pre-arrest bail---Effect---Rejection of pre-arrest bail by itself was not a bar for the grant of post-arrest bail because considerations for grant of pre-arrest bail and for the grant of post-arrest bail were totally different.

Dawood v. Muhammad Yasin PLD 1982 SC 227 rel.

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

----Ss. 497/498---Bail---Abscondance of the accused---Scope---Bail could not be withheld on the ground that the accused remained fugitive from the law, if otherwise he became entitled for the concession of bail.

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

----S. 497(5)---Cancellation of bail---Grounds---Strong and exceptional circumstances were required to cancel the bail already granted to the accused by a competent court of law e.g. where the order granting bail was patently illegal, erroneous, factually incorrect and had resulted on the miscarriage of justice.

Muhammad Younas Bhular for Petitioner.

Muhammad Naeem Sheikh, D.P.-G. with Sarfraz, S.-I. for the State.

Nazar Abbas Syed for the Complainant.

2013 P Cr. L J 505

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

NAZIR AHMAD and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.146-J of 2006 and Murder Reference No.508 of 2010, heard on 10th January, 2012.

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

----S. 302(b)/34---Qatl-e-amd, common intention---Appreciation of evidence---F.I.R. in the case was lodged with promptitude, which had ruled out the possibilities of concoction and deliberation and carried the sanctity of truth---No delay took place in conducting the post-mortem of the deceased---According to ocular account furnished by the complainant and prosecution witness, accused were ascribed the role of inflicting several blows of 'dagger' and 'daater' which were landed near the nose, under the ear and on right and left flanks of the deceased---Said witnesses were cross-examined at length, but their testimony could not be shattered during the cross-examination---Time of occurrence/death given in the F.I.R. and mentioned by the eye-witnesses had also tallied with the time of death as given by Doctor who conducted the post-mortem of the deceased---Medical evidence had further supported the ocular account regarding the kind of weapon used in the occurrence---Doctor was cross-examined by defence counsel, but no material favourable to accused could be brought on the record in the course of his cross-examination---Complainant and prosecution witness, though were closely related to the deceased, but mere relationship of a witness with the deceased was no ground to discard his evidence outrightly---If the evidence of a related witness was trustworthy and confidence-inspiring, then said evidence could safely be relied upon in order to award punishment to the accused---Prosecution witnesses stood the test of lengthy cross-examination, but their evidence could not be shattered by the defence Counsel---Evidence of said witnesses was quite natural, straightforward and confidence-inspiring---Recovery of offense weapons, "dagger" and "daater", was not helpful to the prosecution case because prosecution had failed to establish that same were stained with human blood, because there was no report of the serologist to that effect---Motive as alleged was not established by the prosecution through any confidence-inspiring evidence during the course of trial---Defence witness produced by accused, who was sister of accused, was not present at the spot at the time of occurrence---Accused had produced said witness at a belated stage in order to save their skin and same was disbelieved, in circumstances---If the evidence of motive and recoveries of weapon of offence was excluded from consideration, even then sufficient incriminating evidence was available on record against the accused---Prosecution, in circumstances, had proved its case against accused persons beyond the shadow of any doubt.

Sahib Khan v. The State 2008 SCMR 1049; Umar Draz v. The State 1990 SCMR 571 and Bashir Khan v. The State 1995 SCMR 900 rel.

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

----S. 302(b)/34---Qatl-e-amd, common intention---Appreciation of evidence--- Sentence, reduction in--- Mitigating circumstances---Prosecution could not prove the motive as alleged by the complainant party; it was not determinable as to what had actually happened immediately before the occurrence, which had resulted into the death of deceased---Death sentence awarded to accused, in circumstances, was harsh and his case was of lesser punishment---Co-accused had been awarded lesser punishment of life imprisonment by the Trial Court and prosecution had not filed any criminal revision for enhancement of his sentence---Accused could not be treated differently, when his role was not distinguishable from the role of his co-accused who had been awarded lesser punishment---Recovery of dagger from accused had already been disbelieved because no report of the Serologist was placed on record to establish that the said dagger was stained with blood---Conviction of accused under S.302(b), P.P.C. as awarded by the Trial Court was maintained, but his sentence was altered from death to imprisonment for life---Conviction and sentence awarded to co-accused, were maintained---Benefit of S.382-B, Cr.P.C., was also given to the accused persons.

Ahmad Nawaz and another v. The State 2011 SCMR 593 rel.

Rana Muhammad Arshad and Maqbool Ahmad Qureshi (Defence Counsel) for Appellants at State expense.

Chaudhry Ghulam Mustafa, Deputy Prosecutor-General for the State.

Muhammad Shahzad Awan for the Complainant.

Date of hearing: 10th January, 2012.

2013 P Cr. L J 539

[Lahore]

Before Amin-ud-Din Khan and Abdus Sattar Asghar, JJ

MUHAMMAD SIDDIQUE---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.76 and Murder Reference No.14 of 2009/BWP, decided on 18th January, 2012.

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

----Ss. 302(b), 324 & 449---Qatl-e-amd, attempt to commit qatl-e-amd, house-trespass---Appreciation of evidence---Eye-witnesses including the injured witness had made unanimous statements corroborating each other on vital dimensions of the case---Complainant and the other eye-witness had plausibly explained their presence at the time and place of occurrence---Injured lady witness had sufficiently corroborated the prosecution version with regard to complicity of the accused in commission of the offence---Accused being already well-known to prosecution witnesses had been rightly identified in the light of the lantern---Non-production of the lantern before Investigating Officer had not detracted the evidentiary value of the prosecution witnesses regarding the ocular testimony---Failure of Investigating Officer to show the inter se distance of the accused and the deceased and injured person at the time of occurrence in the site plan was not fatal to prosecution case, otherwise established by trustworthy evidence---Recovery of offence weapon and crime empties bearing substantial support from the report of Forensic Science Laboratory had also furnished considerable corroboration to the prosecution case---Relationship of prosecution witnesses with the deceased was of no consequence, as defence side, in cross-examination, had not suggested the case to be that of false implication---Inadequacy, weakness or failure to prove the motive by prosecution, could not extend any benefit to the accused for not awarding the normal penalty of death or for reducing the capital sentence of death to lesser punishment, especially when prosecution case had been fully established by trustworthy and confidence-inspiring evidence on record---No mitigating circumstance was available in favour of accused---Convictions and sentences of accused were upheld in circumstances.

Shamshad Ali v. The State 2011 SCMR 1394; Mst. Shamim Akhtar v. Fiaz Akhtar and 2 others PLD 1992 SC 211; Muhammad Hanif v. The State PLD 1993 SC 895; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758; Ashfaq Ahmad v. The State 2007 SCMR 641 and Mumraiz v. The State 2011 SCMR 1153 ref.

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

----Ss. 302(b), 324 & 449---Qanun-e-Shahadat (10 of 1984), Art.22---Qatl-e-amd, attempt to commit qatl-e-amd, house-trespass---Appreciation of evidence---Site plan---Evidentiary value---Site plan is not a substantive piece of evidence in terms of Art.22 of Qanun-e-Shahadat, 1984.

Mst. Shamim Akhtar v. Fiaz Akhtar and 2 others PLD 1992 SC 211 ref.

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

----Ss. 302(b), 324 & 449---Qatl-e-amd, attempt to commit qatl-e-amd, house-trespass---Appreciation of evidence---Falsus in uno falsus in omnibus---Applicability---Doctrine of "falsus in uno falsus in omnibus" is not followed in criminal justice system of the country and the golden principle of "separating the grain from the chaff" is now practised while appraising the evidence.

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

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

----Ss. 302(b), 324 & 449---Qatl-e-amd, attempt to commit qatl-e-amd, house-trespass---Appreciation of evidence---'Interested witness'---Connotation---Interested witness is one who has a motive to falsely implicate the accused due to some grudge or animosity.

Ashfaq Ahmad v. The State 2007 SCMR 641 ref.

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

----Ss. 302(b), 324 & 449---Qatl-e-amd, attempt to commit qatl-e-amd, house-trespass--- Appreciation of evidence--- Motive--- Scope---Inadequacy, weakness or failure of prosecution to prove the motive, does not extend any benefit to the murderer for not awarding normal death penalty to him or to reduce his sentence of death to a lesser punishment, especially when prosecution case against him stands fully established by trustworthy and confidence-inspiring evidence.

Mumraiz v. The State 2011 SCMR 1153 ref.

Muhammad Sharif Bhatti and Mian Muhammad Tayyab Wattoo for Appellant.

Muhammad Ali Shahab, Deputy Prosecutor-General for the State.

Altaf Nawaz for the Complainant.

Date of hearing: 18th January, 2012.

2013 P Cr. L J 562

[Lahore]

Before Ijaz Ahmad Chaudhry, C.J. and Mazhar Iqbal Sidhu, J

Sheikh MUHAMMAD AFZAL---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU (NAB) through Chairman and 4 others---Respondents

Writ Petition No.2504 of 2011 and Writ Petition No.26021 of 2010, heard on 24th May, 2011.

(a) Criminal trial---

----Absconder---Absconder looses some of his normal rights.

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

----Ss. 497 & 498---Bail---Absondance---Effect---Absondance alone cannot be made a ground for refusal of bail to accused, if he otherwise proves that his case falls within the mischief of further inquiry into his guilt.

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

----Ss. 9(a)(iv)(v)(vi) & 9(b)---Criminal Procedure Code (V of 1898), S.497(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, refusal of---Medical ground---Disease curable in jail---Determination---Case of further inquiry---Petitioners were accused facing trial before Accountability Court on the allegation of misuse of authority, cheating and causing loss to bank---Petitioners sought bail on the pleas of ailment and that of further inquiry---Validity---Petitioners did not append even a single document with petition wherefrom it could be gathered that they were patients of a disease which could not be curable through treatment in jail hospital---High Court observed that in cases of fraud, almost every accused had fallen ill after his arrest; in the eventuality of any serious disease, jail authorities could take steps for treatment of accused even outside jail premises---Petitioners failed to specify disease, which could be proved to be fatal for their lives---Petitioners were involved in commission of fraud which ultimately deprived National exchequer from billion of rupees and petitioners had failed to establish that their case fell within the ambit of further inquiry justifying exercise of Constitutional jurisdiction by High Court for grant of post arrest bail to them---Past conduct of petitioners rendered them disentitled for grant of bail and possibility of their fleeing away from country could not be ruled out---Petition was dismissed in circumstances.

Kalb-e-Ali and 2 others v. Chairman National Accountability Bureau and 4 others 2011 PCr.LJ 565; Sh. Aijaz Ahmad v. D.G. NAB 2009 PCr.LJ 1019; Muhammad Nadeem Anwar and another v. National Accountability Bureau and others PLD 2008 SC 645; Asghar Ali alias Kaloo v. The State PLD 2008 Lah. 191; Nadeem Majeed v. The State 2007 SCMR 1958; Peer Mukaram-ul-Haq v. National Accountability Bureau and others 2006 SCMR 1225; Ayaz Younus v. The State and another 2006 MLD 452; National Accountability Bureau v. Khalid Masood and another 2005 SCMR 1291; Tariq Saeed and another v. Chairman National Accountability Bureau and 2 others 2005 YLR 445; Farrukh Sayyar Khan v. The State and another 2005 MLD 519; Ch. Zulfiqar Ali v. The State PLD 2002 SC 546; Khan Asfandyar Wali and others v. Federation of Pakistan and others PLD 2001 SC 607 and PLD 1992 SC 463 distinguished.

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

----Ss.9(a) & 9(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, refusal of---Rule of consistency---Applicability---Petitioners were accused facing trial before Accountability Court and had sought bail after arrest on the plea that some of their co-accused have already been granted bail---Validity---Role of co-accused who had already been granted bail was poles apart from that of the petitioners---Co-accused were either subordinates or employees of petitioners and if any illegality was committed by them during the process of sanctioning of loan, the same was result of undue influence and pressure exerted by petitioners in their capacities of senior or employer of co-accused---Petitioners could not claim bail on the basis of rule of consistency as their role was distinguishable from those who were granted bail---Petition was dismissed in circumstances.

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

----S. 9(b)---Constitution of Pakistan, Art. 199---Constitutional jurisdiction---Bail---Principle---High Court has jurisdiction to grant bail to accused while exercising Constitutional jurisdiction but while doing so, High Court cannot stretch provisions of Criminal Procedure Code, 1898, just to facilitate accused to get themselves released on bail, as such provisions have been specifically ousted in National Accountability Ordinance, 1999---Provisions of special law override general law.

Ahmed Awais, Waqar Hassan Mir and Asad Manzoor Butt for Petitioner (in W.P. No.2504 of 2011).

Mehmood A. Sheikh for Petitioner (in W.P. No.26021 of 2010).

Mian Muhammad Bashir, Deputy Prosecutor-General NAB with Aftab Ahmad, Assistant Director, NAB for Respondents.

Barrister Syeeda Maqsooma Bukhari on behalf of the Bank of Punjab.

Date of hearing: 24th May, 2011.

2013 P Cr. L J 584

[Lahore]

Before Abdul Sami Khan, J

SHAHRUKH---Appellant

Versus

BASHIR AHMAD and another---Respondents

Criminal Miscellaneous No.1 of 2012 in Criminal Appeal No.424 of 2012, decided on 11th October, 2012.

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

----S. 426---Penal Code (XLV of 1860), Ss. 302 & 34---Juvenile Justice System Ordinance (XXII of 2000), S. 11---Qatl-e-amd, common intention---Suspension of sentence---Release of juvenile on probation---Scope---Juvenile accused possessing skills of a mature person---Effect---Accused allegedly killed the deceased by inflicting knife blows on his chest---Trial Court convicted and sentenced accused to life imprisonment---Contention of accused was that he was juvenile at the time of the offence, therefore, Trial Court should have considered S.11 of Juvenile Justice System Ordinance, 2000 whereby court had discretion to release an offender on probation for good conduct---Prosecution contended that accused was sentenced to life imprisonment only because he was a juvenile at the time of occurrence, otherwise it was a case of death sentence; that accused had already been dealt with leniently, and that only four months had passed since sentence of accused began, therefore, suspending his sentence would set a bad precedent---Validity---Accused was tried as a juvenile offender by the Trial Court and he was convicted to life imprisonment after a regular trial---Provisions of S.11 of Juvenile Justice System Ordinance, 2000 were only meant to be considered/decided by the Juvenile Court---Role ascribed to accused was proved through confidence-inspiring evidence of prosecution witnesses---Role attributed to accused was also borne out from the post-mortem report of the deceased---Conduct of accused and method as well as mannerism of the commission of offence adopted by him indicated his evil and well-planned design---Conduct of accused indicated more towards the mature skill of an accused than of an innocent child---Petition for suspension of sentence was dismissed in circumstances.

2012 PCr.LJ 142; 2006 PCr.LJ 1562 and 2007 PCr.LJ 1577 distinguished.

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

----Preamble---Statutory protection of Juvenile Justice System Ordinance, 2000---Scope---Statutory protection of the legislation on Juvenile Justice was meant for a minor who was an innocent law breaker and was not an accused having a mature mind, who used the plea of minority as a ploy or shield to protect himself from the sentence of the offence committed by him.

Muhammad Usman Sharif Khosa for Appellant-Petitioner.

Muhammad Abdul Wadood, Deputy Prosecutor-General for the State.

Qazi Sadar-ud-Din Alvi for the Complainant.

2013 P Cr. L J 603

[Lahore]

Before Rauf Ahmad Sheikh and Syed Iftikhar Hussain Shah, JJ

GHULAM FAREED and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 14-ATA, 31-ATA and C.S.R. No.2-ATA of 2008, decided on 13th December, 2012.

(a) Criminal trial---

----Related witness---Principle---Relationship of witnesses is not a ground itself to discredit their testimony.

Khizer Hayat v. The State 2011 SCMR 429 rel.

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

----Ss. 6, 7(a) & 7(c)---Act of terrorism---Determination---Motive---Alleged motive behind occurrence was suspicion by co-accused that paternal uncle of deceased had illicit relations with wife of co-accused---Effect---Application of S. 6 of Anti-Terrorism Act, 1997, primarily required spread of sense of insecurity and fear in common mind and the same was lacking---Occurrence neither reflected any act of terrorism nor it was sectarian matter and occurrence was result of previous enmity between the parties---Accused was wrongly convicted under S. 7(a) & (c) of Anti-Terrorism Act, 1997.

Shabbir Ahmad v. Muhammad Siddique PLD 2009 SC 11 rel.

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

----S. 34---Common intention---Scope---Common intention is intention to commit crime and each accused can be convicted for the crime who participated in that crime, in furtherance of the common intention.

(d) Maxim---

----Falsus in uno falsus in omnibus---Applicability---Principle of falsus in uno falsus in omnibus, has no universal application and grain has to be sifted from chaff to ensure justice.

Khadim Hussain v. The State 2010 SCMR 1090 rel.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), Ss. 7(a) & 7(c)---Qatl-e-amd and terrorism--- Appreciation of evidence--- Benefit of doubt---Sentence, reduction in---Extenuating circumstances---Accused along with co-accused, since declared proclaimed offender, was alleged to have committed murder by pouring acid on deceased thus was convicted by Trial Court and sentenced to death---Validity---Prosecution fully established guilt of accused coming at the spot along with his co-accused who poured acid on deceased resulting in his death---Accused threw acid on various parts of the body of injured prosecution witness resulting in burning of his vital parts including genital region along with penis, so Trial Court rightly convicted him---As far as quantum of sentence was concerned, it was not a case of capital punishment and there were certain extenuating circumstances in favour of accused, as he had not thrown acid or caused any injury to the deceased---Accused was entitled to benefit of doubt as extenuating circumstances while deciding quantum of sentence---High Court maintained conviction of accused but altered death sentence into imprisonment for life.

Muhammad Yousaf v. The State 2002 PCr.LJ 576; Noor Muhammad v. The State 1983 PCr.LJ 164; Manzoor Ullah v. The State 2002 MLD 85; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Mirza Shaukat Baig v. Shahid Jamil PLD 2005 SC 530; Majeed v. The State 2010 SCMR 55; Shah Daraz Khan v. Muhammad Jabbar and another 2010 MLD 1848; Shaukat Ali v. State PLD 2007 SC 538; Ahmed Hussain alias Ami and others v. The State and others PLD 2008 SC 110; Gul Muhammad alias Gullu v. The State PLD 1987 Lah. 196; Muhammad Yousaf v. The State 2002 PCr.LJ 576; Afzaal Ahmed v. The State 2003 SCMR 573; Farmanullah v. Qadeem Khan 2001 SCMR 1474 and Sabir and others v. The State and others 2001 SCMR 94 ref.

Mir Muhammad alias Mir v. The State 2009 SCMR 1188; Ansar Ahmad Khan Barki v. The State and another 1993 SCMR 1660 and Sharafat Ali Khan v. The State 2010 SCMR 1205 rel.

(f) Criminal trial---

----Acquittal---Presumption---When accused is acquitted from a case after protracted trial, double presumption of innocence is attached to him.

Iftikhar Hussain and others v. State 2004 SCMR 1185 and Haji Amanullah v. Munir Ahmad and others 2010 SCMR 222 rel.

Sardar Mehboob for Appellants.

Muhammad Amjad Rafique, Deputy Prosecutor-General for the State.

M.R. Fakhar Baloch for the Complainant.

Date of hearing: 13th December, 2012.

2013 P Cr. L J 630

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

SADAQAT ALI---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE/JUSTICE OF PEACE, GUJRANWALA and 6 others---Respondents

Writ Petitions Nos.27238, 27303, 27307, 27194 and 27406 of 2012, decided on 5th November, 2012.

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

----S. 22-A(6) [as added by Criminal Procedure Code (Amendment) Ordinance (CXXXI of 2002) w.e.f. 21-11-2002]---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Complaint to Ex-Officio Justice of Peace---Issuance of directions by Ex-Officio Justice of Peace to Police authorities---Ex-Officio Justice of Peace under S.22-A(6), Cr.P.C., had power to look into complaint of any neglect, failure or excess committed by police authorities in relation to their functions and duties and could pass appropriate orders in case of finding such neglect etc. on part of police---High Court was not an Executing Court with regard to orders passed by Ex-Officio Justice of Peace---Constitutional petition in case of availability of alternate remedy would not be maintainable, thus, complaint of any such neglect must be made to Ex-Officio Justice of Peace---High Court dismissed constitutional petition being not maintainable.

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

----S. 22-A---Constitution of Pakistan, Art. 199(1)(a)(i)---Constitutional petition---Complaint to Ex-Officio Justice of Peace---Issuance of directions by Ex-Officio Justice of Peace to Police authorities to act in accordance with law---Constitutional petition for setting aside such directions/orders---Maintainability---Necessary implication of granting of such prayer of petitioner would be that High Court was directing police authorities not to act or proceed in accordance with law, which was not its constitutional mandate---High Court could not restrain any authority from doing or acting in accordance with law nor was same its constitutional mandate--- Person aggrieved with findings of investigating agency could avail independent remedies---Ex-Officio Justice of Peace must guard jealously his orders and directions---Police officer/official, if found responsible for any such neglect etc., must be dealt with severely and initiation of departmental proceedings against him under Police Order, 2002 be also recommended---High Court dismissed constitutional petition being not maintainable.

(c) Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Alternate remedy, availability of--- Effect--- Constitutional petition would not be maintainable.

Ch. Majid Hussain for Petitioner.

Ch. Karamat Ali, Additional Prosecutor-General Punjab and Muhammad Nasir Chohan, Assistant Advocate-General Punjab (On Court's Call).

2013 P Cr. L J 645

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

ZAFAR IQBAL alias KALA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.72-J of 2011, heard on 1st March, 2012.

Penal Code (XLV of 1860)---

----Ss. 302(b), 396, 460 & 71---Criminal Procedure Code (V of 1898), S.345(2)---Qatl-e-amd, dacoity with murder, lurking house-trespass---Appreciation of evidence---Sentence, reduction in---Compromise---Legal heirs of the deceased had effected a valid and bona fide compromise with the accused and had no objection if the accused was acquitted in the case---Offence under S.302, P.P.C. being compoundable, the compromise to the extent of the murder of the deceased was accepted and accused was acquitted of the said charge---Offences under Ss.396, P.P.C. and 460, P.P.C., however, were not compoundable and defence counsel in this regard had prayed for reduction of sentence of accused thereunder to imprisonment already undergone by him---Offences under Ss.396, P.P.C. and 460, P.P.C. though different but fell in the same definition, keeping in view the provisions of S.71, P.P.C. no one could be sentenced twice in the offences falling within one definition---Trial Court, therefore, was not justified in convicting the accused simultaneously in both these offences---Accused had suffered a substantial portion of his sentence---Accused was a first offender and he had not been convicted earlier by any court of law---Legal heirs of the deceased had already forgiven the accused in the main offence under S.302, P.P.C.---Sentence of ten years' R.I. awarded to accused under Ss.396, P.P.C. and 460, P.P.C. was reduced to the imprisonment already undergone by him in order to meet the ends of justice---Appeal was disposed of accordingly.

Khan Talib Hussain Khan Balouch for Appellant.

Mian Muhammad Awais Mazhar, Deputy Prosecutor-General for the State.

Nemo for the Complainant.

Date of hearing: 1st March, 2012.

2013 P Cr. L J 660

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

Mst. SAMINA BEGUM---Petitioner

Versus

The STATE and another---Respondents

Writ Petition No.21595 of 2011, decided on 7th March, 2012.

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

----S. 154---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Separate F.I.R., registration of---Scope---Where F.I.R. does not reflect true facts of a case, separate F.I.R. can be lodged.

Wajid Ali Khan Durani and others v. Government of Sindh and others 2001 SCMR 1556 and Mst. Anwar Begum v. Station House Officer, Police Station Kalri West, Karachi and 12 others PLD 2005 SC 297 rel.

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

----Ss. 154, 22-A & 22-B---Penal Code (XLV of 1860), S.302---Constitution of Pakistan, Art.199---Constitutional petition---Qatl-e-amd---Separate F.I.R., registration of---Grievance of the complainant petitioner was that the police in connivance with the accused persons had distorted the real facts and during investigation had made the case as one of suicide instead of culpable homicide, which had been witnessed by the complainant and her children who were present at the time of occurrence in the house of her daughter---Application filed by the complainant in that respect had sufficiently made out a case for registration of separate F.I.R., as police had declared that the death of the daughter of the complainant had occurred due to her suicide---Where F.I.R. did not reflect true facts of a case, separate F.I.R. could be lodged---Ex-Officio Justice of Peace had failed to notice the aforesaid facts while declaring the request of the complainant for registration of F.I.R.---Order of Ex-Officio Justice of Peace was consequently set aside with the direction to S.H.O. concerned to record the statement of the complainant petitioner and to proceed with it in accordance with law---Constitutional petition was allowed accordingly.

Wajid Ali Khan Durani and others v. Government of Sindh and others 2001 SCMR 1556; Mst. Anwar Begum v. Station House Officer, Police Station Kalri West, Karachi and 12 others PLD 2005 SC 297 and Mushtaq Hussain and another v. The State 2011 SCMR 45 rel.

Aaliya Neelum for Petitioner.

Wali Muhammad Khan, Assistant Advocate-General Punjab along with Muhammad Ashraf, S.-I. with record for the State.

2013 P Cr. L J 668

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

BARKAT ALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 17284-B of 2011, decided on 8th February, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 307-A(i), 307-F(i), 307-F(iii), 337-F(v), 148 & 149---Qatl-e-amd, attempt to commit qatl-e-amd, causing of hurt, rioting armed with deadly weapons---Second bail petition, dismissal of---Earlier post-arrest bail application of accused had been dismissed by High Court on merits and a petition moved by him before Supreme Court seeking the same relief had been dismissed as withdrawn---Present second bail application had been pressed on behalf of accused on the ground of delay in conclusion of the trial---Three innocent persons had been killed in the case and 24 persons had sustained injuries at the hands of an unlawful assembly---Accused being armed with a gun was one of the active members of the said unlawful assembly and his fire shot had hit one of the deceased persons on the vital part of his body---Trial in the case had commenced and statements of eight prosecution witnesses had been recorded---Finding regarding an accused being a hardened, desperate or a dangerous criminal could be given by the court by reference to facts of bail application or by reference to other extraneous matters, which might be brought to notice of the court---Superior courts ordinarily would not indulge in the matter of auxiliary nature qua rendering findings on the plausibility or otherwise of the prosecution version---Bail was declined to accused, in circumstances.

Shouki alias Shoukat and another v. The State and another 1984 SCMR 613; Muhammad Hanif v. The State PLD 1986 Kar. 437; Gul Akbar v. The State 2007 SCMR 1798 and Muhammad Hanif v. Shafqat Nazir and others 2007 SCMR 1857 ref.

Zubda-tul-Hussain for Petitioner.

Ms. Moquddas Tahira, Additional Prosecutor-General for the State.

Zahoor-ul-Haq for the Complainant.

Shabbir, S.-I. with Police Record.

2013 P Cr. L J 684

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

KHALID ANWAR---Petitioner

Versus

EX-OFFICIO JUSTICE OF PEACE, LAHORE and 3 others---Respondents

Writ Petitions Nos.5931 and 6122 of 2012, decided on 4th May, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B---Constitution of Pakistan, Art.199---Constitutional petitions---Order of Justice of Peace for registration of case without examining the police report and relevant material on record---Two constitutional petitions were filed, one by the complainant seeking implementation of said order while the second petition was filed by the accused for setting aside the same---Allegation against the accused was that he was an accomplice to a robbery committed at the complainant's shop---Contentions of the accused were that the alleged occurrence did not take place as was evident from the rapat recorded by the police; that report requisitioned by the Justice of Peace from the police also negated the commission of the offence; that direction issued by Justice of Peace for registration of case was based upon extraneous considerations and was not in consonance with the law, and that the complainant and his family were involved in many criminal cases and had a history of criminal litigation---Validity---Record revealed that complainant had concealed material facts in his application before the Justice of Peace and if no report was summoned from the police, the registration of case on the simple application of the complainant might cause harassment to the innocent persons and would also be abuse of process of law---Law promulgated to check the misdeeds of the complainant was ineffective and involved lengthy procedures for punishing a complainant but the benefit of such ineffectiveness of the laws could not be extended to persons like the present complainant, who with malice concealed material facts from the court while seeking registration of case---Complainant himself was involved in different criminal cases and his brother was an accused in many cases---Rapat of the incident was recorded by the police on the same day, wherein it had been mentioned; that neither the alleged occurrence took place nor any robbery was committed in the complainant's shop, and that the complainant had tried to involve innocent persons because of an ongoing litigation---Justice of Peace did not examine the police report and other relevant material on the record and had also misapplied and misconstrued the case-law cited in his order---Constitutional petition filed by the accused was allowed and order of Justice of Peace was set aside, while the constitutional petition filed by the complainant was dismissed.

Syed Karamat Ali Shah Naqvi for Petitioner.

Barrister Muhammad Ahmad Pansota for Respondent No.3 (in Writ Petition No.5931 of 2012) and for Petitioner (in Writ Petition No.6122 of 2012)

Wali Muhammad Khan, A.A.-G.

2013 P Cr. L J 723

[Lahore]

Before Amin-ud-Din Khan and Abdus Sattar Asghar, JJ

SAFDAR ALI---Appellant

Versus

The STATE and 2 others---Respondents

Criminal Appeal No.529/BWP of 2011, decided on 21st March, 2012.

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

----Ss. 302, 324 & 34--- Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-e-amd, attempt to commit qatl-e-amd, common intention---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Allegation against accused and co-accused (respondents) was that they murdered brother of the complainant (appellant) and to give a wrong colour to the incident injured their own sister, who later succumbed to her injuries---Validity---Perusal of F.I.R. revealed that complainant (appellant) had not attributed any specific injury to the accused and co-accused (respondents) on the body of the deceased persons---Complainant alleged that the accused dragged his own sister and beat her, but one of the prosecution witnesses had not mentioned anything regarding such beating by the accused, while another prosecution witness in his testimony did not mention the fact that accused dragged his own sister---No overt act had been attributed to the accused and co-accused except proverbial lalkara---Testimonies of all prosecution witnesses regarding proverbial lalkara and participation of accused and co-accused were materially inconsistent and contrary to the version of the complainant as set forth in the F.I.R.---Fact that accused and co-accused, despite being armed with weapons, did not use the same in the commission of the alleged occurrence, was astonishing---Prosecution had failed to prove the charge beyond any reasonable doubt, therefore Trial Court had rightly granted acquittal in favour of the accused and co-accused---High Court found no factual or legal infirmity in the order of acquittal passed by Trial Court, and same was neither arbitrary nor perverse---Appeal against acquittal was dismissed, in circumstances.

Haji Paio Khan v. Sher Biaz and others 2009 SCMR 803 rel.

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

----S. 417--- Appeal against acquittal--- Presumption--- Double presumption of innocence is attached to the order of acquittal passed by a Court of competent jurisdiction---Courts do not interfere with such order unless the same is arbitrary, capricious, fanciful and against the record.

Haji Paio Khan v. Sher Biaz and others 2009 SCMR 803 rel.

Tallat Mahmood Kakezai for Appellant.

2013 P Cr. L J 733

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD AMEEN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.1671-B of 2011/BWP, decided on 25th August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 376---Rape---Bail, refusal of---Allegation against accused (imam mosque) was that he committed zina with the victim, who was getting education of the Holy Quran at the mosque---Contentions of the accused were that he had been involved in the case due to a previous enmity between the parties; that there was a dispute over 'Imamat' of the mosque between the accused and a close relative of the complainant; that there was an unexplained delay of four days in lodging of the F.I.R.; that report of the Chemical Examiner and DNA tests were negative, and that medico legal report of the victim did not reveal any injury or mark of violence on the body of the alleged victim---Validity---Medico legal report of the victim revealed that her hymen was torn and her vagina admitted two fingers---Accused had failed to point out as to why the complainant had involved the accused in a case in which he himself ran the risk of stigmatizing his young daughter (victim)---Contentions of the accused related to deeper appreciation of the material available on record, which was neither desirable nor required at bail stage---Accused was involved in a heinous offence which fell within the prohibitory clause of S. 497, Cr.P.C.---Bail petition of accused was dismissed, in circumstances.

Qari Nadeem Ahmad Awaisi for Petitioner.

Muhammad Ali Shahab, D.P.-G. for the State.

Ch. Manzoor Ahmad for the Complainant.

Riaz ASI with Record.

2013 P Cr. L J 745

[Lahore]

Before Syed Iftikhar Hussain Shah and Rauf Ahmad Sheikh, JJ

MUHAMMAD ZUBAIR---Petitioner

Versus

The STATE---Respondent

Criminal Revision No.134 of 2008, heard on 2nd October, 2012.

(a) Drugs Act (XXXI of 1976)---

----Ss. 18(f) & 24---Punjab Drugs Rules, 1988, R. 9(1)---Expunction of adverse remarks by the court---Present case was registered on the basis of advertisements of drugs given by a company in different newspapers---Trial Court acquitted the accused persons after accepting their applications under S.265-K, Cr.P.C.---Trial Court observed in its acquittal order that Form-5 as prescribed under Rule 9(1) of Punjab Drugs Rules, 1988 was not prepared at the time of seizure, therefore, case was installed against the accused persons with mala fides so as to blackmail them---Trial Court also gave directions to the concerned authorities to take disciplinary action against the Drug Inspector (petitioner) and not to post him in the field---Drug Inspector contended that he performed his duties in good faith and remarks passed by Trial Court were uncalled for---Validity---Trial Court passed the adverse remarks due to non-preparation of inventories on Form-5 as required under S.18(f) of Drugs Act, 1976 and Rule 9(1) of Punjab Drugs Rules, 1988---Although inventory in said Form-5 was not required in the present case, the Drug Inspector should have reduced the factum of securing the advertisements in black and white, which he failed to do---Such failure on part of the Drug Inspector might have been the result of slackness but it did not prove that he had acted with malice---Nothing was available before the Trial Court to conclude that action was taken by Drug Inspector in order to blackmail the accused persons or that same was tainted with malice---District Quality Board had accorded approval of prosecution without pointing out the deficiency regarding Form-5, therefore after approval of the competent authority, lapse on part of the Drug Inspector could not be termed as malicious---Adverse remarks passed by Trial Court were without any cogent reason---Revision petition was accepted and adverse remarks passed by Trial Court were set at naught and concerned authority was directed to treat the same as non-existent on the record.

(b) Drugs Act 1976 (XXXI of 1976)---

----S. 24---Drugs (Licensing, Registering and Advertising) Rules, 1976, R. 31---Advertisement of drugs/medicines in violation of the law---Publication of advertisement at place 'A'---Circulation of advertisement at place 'B'---Drug Inspector, jurisdiction of---Scope---When advertisement published from place 'A' against the provisions of S.24 of the Drugs Act, 1976 and in violation of the conditions laid down in Rule 31 of the Drugs (Licensing Registering & Advertising) Rules, 1976, was exhibited or circulated at place 'B' then the Drug Inspector posted at place 'B' could lawfully initiate action and submit the complaint before the Drug Court in territorial jurisdiction of which such place fell---When an advertisement was exhibited or circulated at a specific place then the Drug Court of the said area would have the jurisdiction irrespective of the place of its publication.

Ch. Mehmood Ali for Petitioner.

Muhammad Amjad Rafiq, D.P.-G. for the State.

Date of hearing: 2nd October, 2012.

2013 P Cr. L J 755

[Lahore]

Before Abdul Sami Khan, J

UMAR DRAZ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.481 of 2006, heard on 21st June, 2010.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Version of accused was contrary to that advanced by the prosecution---Stance taken by the complainant was near to truth---Both the eye-witnesses of the prosecution were consistent in their statements---No material contradiction existed in the statement of both the eye-witnesses; their statements were fully supported by the medical evidence---F.I.R., was recorded with promptitude---Medical evidence fully substantiated the prosecution case---Prosecution, in circumstances, had been able to prove the case against accused beyond any shadow of doubt---Prosecution witnesses though were related to the deceased, but their evidence, which otherwise rang true could not be discarded merely on ground of relationship---Injuries allegedly sustained by accused at the hands of the complainant party, neither were mentioned in the crime report nor the prosecution witnesses of ocular account deposed even a single word in that regard---Said injuries were not suppressed by the prosecution---Question of previous enmity as claimed by the prosecution had not been proved on record through tangible evidence and did not support the ocular account---Recovery of carbine could not be termed as a corroborative piece of evidence and did not help the prosecution---Prosecution story, though was correct to the extent of occurrence and participation of accused, but manner and mode of occurrence as stated by the complainant did not make sense---Incident was a sudden affair which took place when both the parties came across each other on the day of occurrence---Case of accused did not fall under S.302(b), P.P.C., at the most it was covered by the provisions of S.302(c), P.P.C.---Case carried some mitigating circumstances in view thereof sentence of accused already served would be sufficient---Sentence of accused was reduced from life imprisonment to one already undergone by him.

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

(b) Criminal trial---

----Appreciation of evidence---Evidence of a related witness---Evidence of a witness could not be discarded merely on the ground of relationship---If the evidence of a related witness would ring true, it could not be disbelieved simply because witness was related to concerned party.

Muhammad Waris v. The State 2008 SCMR 784 rel.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Motive---Mere weakness or absence of motive for murder, could not justify the departure from awarding normal penalty of death for murder prescribed in S.302, P.P.C., but in a case where the motive was shrouded in mystery, and the circumstances of the case also indicated that despite the murder, both the parties had suppressed the truth or they had given the version which could not be plausible in stricto sensu; the absence or the weakness of the motive could be considered as an additional factor for the mitigation of the sentence.

Naseer Ahmad Thaheem and Mehroz Aziz Khan for Appellant.

Muhammad Abdul Wadood, Deputy Prosecutor-General for the State.

Date of hearing: 21st June, 2012.

2013 P Cr. L J 789

[Lahore]

Before Abdus Sattar Asghar and Amin-ud-Din Khan, JJ

GHULAM HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.212 and Murder Reference No.29 of 2009, heard on 12th December, 2011.

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

----S. 302--- Qatl-e-amd--- Appreciation of evidence--- Substitution phenomenon---Applicability---Such phenomenon is rare in criminal system of justice---Story of substitution is mostly used in unseen cases where complainant has an option to implicate any person keeping in view the motive and degree of enmity with a particular person---Plea of substitution for real culprit in a murder case not supported by any speck of evidence on record is mere banal and devoid of any force.

Allah Ditta v. The State PLD 2002 SC 52 and Khair Muhammad and another v. The State 2007 SCMR 158 rel.

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

----Arts 130 & 132---Cross-examination---Prosecution witnesses---Suggestions by defence side---Effect---Mere suggestion from defence side to prosecution witnesses during cross-examination and categorically denied, have no evidentiary value unless corroborated by independent evidence produced from defence side.

Naveed Akhtar and another v. Muhammad Saeed Khan and another 2004 SCMR 489 rel.

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

----Ss. 302(b), 324 & 325--- Qanun-e-Shahadat (10 of 1984), Art.17(1)---Qatl-e-amd, attempt to Qatl-e-amd and attempt to commit suicide---Appreciation of evidence---Conviction by way of qisas---Principle---Accused was convicted and sentenced to death by Trial Court---Validity---Prosecution proved its case with the help of wholly reliable ocular account based on confidence inspiring and reliable testimonies of injured prosecution witnesses and eye-witness corroborated by medical evidence and recovery of weapon of offence, Chhuri---Arraignment of accused as actual assailant of occurrence resulting into callous and brutal murder of deceased, alike attempt of murderous assault upon complainant causing serious injuries on vital parts of his body was fully proved beyond any iota of doubt---Trial Court had rightly convicted accused as charges were established against him---Present case was not that of Qisas as prosecution witnesses were not subjected to test of Tazkia-tul-Shahood in terms of Art. 17(1) of Qanun-e-Shahadat, 1984---Conviction of accused under S. 302(b), P.P.C. as Tazir as well as other offences under Ss.324 & 325, P.P.C. did not call for any interference---In absence of any extenuating/ mitigating circumstances and keeping in view the brutal and callous murder of deceased by causing as many as 21 major and minor injuries as a result of multiple Chhuri blows on various parts of body of deceased as well as eight injuries on the person of complainant inflicted with Chhuri as a result of attempt to murderous assault upon him, capital punishment of death under S.302(b), P.P.C. as well as quantum of other sentences under Ss. 324 & 325, P.P.C. were rightly awarded to accused by Trial Court and the same did not call for any interference---Appeal was dismissed in circumstances.

Rasheed Afzal Cheema for Appellant.

Muhammad Ali Shahab, Deputy Prosecutor-General for the State.

Malik Dost Muhammad Awan for the Complainant.

Date of hearing: 12th December, 2011.

2013 P Cr. L J 816

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

SARDAR KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 15312-B of 2012, decided on 4th December, 2012.

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

----S. 497---Bail---Dismissal of first two bail petitions---Ground available to accused for grant of bail at the time of first two bail petitions only taken by him at the time of filing third bail petition---Effect---Such ground raised for grant of bail would be deemed to have been asserted at the time of arguing the first two bail petitions, which was considered by the court and repelled.

The State through Advocate-General, N.-W.F.P. v. Zubair and 4 others PLD 1986 SC 173 rel.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 148, 149 & 109---Qatl-e-amd, rioting armed with deadly weapons, unlawful assembly, abetment---Bail, refusal of---Provisions of S.109, P.P.C.---Repugnancy to injunctions of Islam---Scope---Accused allegedly hatched a conspiracy for the murder of deceased persons---Contention of accused was that Shariat Appellate Bench of the Supreme Court had already declared S.109, P.P.C. repugnant to the injunctions of Islam so far as it made an abettor in case of murder and other offences against the human body liable to the same punishment as was prescribed for the murder regardless of the various degrees of abetment---Validity---Provisions of S.109, P.P.C. were part and parcel of codified law---Legislature in the light of the objections of the Shariat Appellate Bench had already made amendments in S.109, P.P.C.---Ground of obsoletion of S.109, P.P.C. raised by accused was not available to him---Accused was not entitled to concession of bail---Bail petition of accused was dismissed accordingly.

Federation of Pakistan through Secretary, Ministry of Law and another v. Gul Hasan Khan PLD 1989 SC 633; Federation of Pakistan and another v. N.-W.F.P. Government and others PLD 1990 SC 1172; Manzoor Ahmad and another v. State 1997 PCr.LJ 850 ref.

Wajid Ali v. Mumtaz Ali Khan and another 2000 MLD 1172 rel.

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

----S. 109---Abetment---Abettor, liability of---Scope---Abettor was liable to same punishment just as the main accused including that of death but not as Qisas but as Ta'zir.

Muhammad Zuhair Khalid Chaudhry for Petitioner.

Muhammad Ishaq, Deputy Prosecutor-General for the State.

Inayat Ullah Cheema and Javed Imran Ranjha for the Complainant.

Manzoor Hussain, S.-I. with record.

2013 P Cr. L J 835

[Lahore]

Before Rauf Ahmad Sheikh and Syed Iftikhar Hussain Shah, JJ

MUHAMMAD RAFIQUE---Appellant

Versus

ANAYAT ALI and 3 others---Respondents

Criminal Appeal No.449 of 1998, heard on 4th October, 2012.

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

----Ss. 302(c) & 100---Criminal Procedure Code (V of 1898), S.417(2-A)---Qanun-e-Shahadat (10 of 1984), Art. 121---Appeal against acquittal---Appreciation of evidence---Right of self-defence extending to causing death---Scope---Accused fired four consecutive fire-shots at the deceased, allegedly in self-defence---Accused claimed that there was imminent danger to his life as deceased had a bottle and a stone in his hands; that deceased hit him (accused) with the bottle and the stone, where after accused snatched a pistol from the deceased and fired at him---Burden of proof according to Art.121 of Qanun-e-Shahadat, 1984 lay on the accused---Defence witnesses who claimed to be eye-witnesses of the occurrence did not depose that deceased was armed with a pistol or that accused snatched a pistol from the deceased---Record did not prove that deceased was armed with a pistol and even if he was, question was as to why he only resorted to throwing a bottle and stone at the accused---Injuries on the person of the accused were of simple nature---Right of self-defence only commenced when a reasonable apprehension arose from an attempt or threat to commit an offence, and was to be exercised as a preventive measure rather than for launching an attack---Accused had fired four successive fire-shots hitting the deceased on different parts of his body, thus it was fully established that he exceeded his right of private defence---Appeal was accepted, impugned judgment of acquittal by Trial Court was set-aside and accused was convicted and sentenced under S.302(c), P.P.C. and also directed to pay compensation to the legal heirs of the deceased.

Muhammad Ashraf v. The State 2012 SCMR 419 ref.

Ghulam Farid v. The State 2009 SCMR 929; Mushtaq Hussain and another v. The State 2011 SCMR 45 and Amal Sherin and another v. The State through A.-G. N.-W.F.P. PLD 2004 SC 371 distinguished.

(b) Criminal trial---

----Witnesses related to deceased, testimony of---Evidentiary value---Scope---Mere relationship of witnesses (to the deceased) was not a ground itself to discredit their testimony.

Khizer Hayat v. The State 2011 SCMR 429 rel.

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

----S. 100---Right of self-defence extending to causing death---Restrictions under which such defence is available enumerated.

Shafqat Ali Khan Baloch and Abdul Sattar Bhutto for Appellant.

Sh. Ghais-ul-Haq for Respondent No.1.

Muhammad Amjad Rafique, Deputy Prosecutor-General for the State.

Date of hearing: 4th October, 2012.

2013 P Cr. L J 856

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

MIAN KHAN and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.12651-B of 2012, decided on 10th December, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Qatl-e-amd, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---Contradiction in medical and ocular evidence---Effect---Accused and co-accused allegedly committed murder of deceased by strangulating him---Investigating Officer had not given any definite opinion qua involvement of accused and co-accused, rather their names were placed in column No.2 of the report under S.173, Cr.P.C.---Injury allegedly caused by co-accused did not find support from the post-mortem report of deceased---Such circumstances coupled with the contradiction in the ocular as well as medical account made the case one of further inquiry---Investigation of the case was complete and accused and co-accused were no more required by the police for further investigation---Accused and co-accused were admitted to bail in circumstances.

Saeed Khan v. The State and another 2011 SCMR 1392 rel.

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

----S. 497(2)---Bail---Offence carrying capital punishment---Case of further inquiry---Plea that accused should be denied bail as offence entailed capital punishment---Validity---Where case against accused was covered under S.497(2), Cr.P.C. (i.e. it was one of further inquiry), accused was entitled to concession of bail as a matter of right.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 rel.

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

----S. 497---Bail, right of---Scope---Abscondence of accused---Effect---Abscondence of accused would not come in the way of grant of bail if he had a good case for grant of bail on merits.

Mitho Pitafi v. The State 2009 SCMR 299 rel.

Rai M. Tufail Khan Kharal for Petitioners.

Mian Muhammad Awais Mazhar, Deputy Prosecutor-General for the State.

Rana Imtiaz Hussain for the Complainant.

Raza, Inspector with record.

2013 P Cr. L J 872

[Lahore]

Before Muhammad Qasim Khan and Ibad-ur-Rehman Lodhi, JJ

ASHRAF ALI alias JAMAT ALI and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos.201, 230 and Murder Reference No.312 of 2007, decided on 4th December, 2012.

(a) Criminal trial---

----Motive, setting of---Effect---Not essential for prosecution to come out with specific motive---Where motive is alleged and it remains unproved then prosecution has to suffer.

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

----Ss.100 & 302(c)---Qatl-e-amd not liable to Qisas and right of self-defence---Appreciation of evidence---Grave and sudden provocation---Sentence, reduction in--- Medical and ocular account--- Defence version---Motive, failure to prove---Accused was convicted and sentenced to death for committing murder of his real paternal uncle---Specific position of accused was that deceased while armed with hatchet entered his house to kill his father, when accused tried to restrain him, deceased rushed towards him to attack, whereupon, gun fire was shot by accused to save his life as well as life of his father---Validity---Stance of accused was closer to reality as according to medical evidence, fire arm injury found on dead body carried burning and blackening, which could only be possible when fire was shot from a distance of three to four feet, whereas scaled site plan disclosed same to be a distance of about thirty eight feet---Non-proof of motive also lent support to statement of accused and in fact there was no previous hostility amongst the parties and matter erupted at spur of the moment without there being any premeditation on the part of accused, who reacted due to sudden and grave provocation in order to save his life as well as life of his father---Defence plea taken by accused was not only plausible but also borne out from circumstances of the case, as there was no other reason available on record as to why he would launch assault on deceased, who also happened to be his real paternal uncle---Accused reacted due to sudden and grave provocation in order to save his life as well as life of his father---High Court set aside conviction under S.302(b), P.P.C. and convicted him under S.302(c), P.P.C. and sentenced him to twelve years' imprisonment---Appeal was allowed accordingly.

Prince Rehan Iftikhar Sheikh for Appellants.

Malik Bakhtiar Mehdi for the Complainant.

Munir Ahmad Sial, Deputy Prosecutor-General for the State.

Date of hearing: 4th December, 2012.

2013 P Cr. L J 893

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

MUHAMMAD SHAHID---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.497-J and Murder Reference No.813 of 2006, heard on 9th May, 2012.

(a) Penal Code (XLV of 1864)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---No one was named as an accused or eye-witness in the F.I.R.---Prosecution case against accused hinged on the circumstantial evidence, utmost care and caution, therefore, was required for reaching at the just decision of the case---Evidence of last seen had been furnished by father and brother of the deceased---Both said witnesses had stated that they contacted accused many times to know the whereabouts of the deceased, but he lingered on the matter---The said witnesses, if they had any suspicion against accused, they must have informed the Police regarding missing of the deceased, but both said witnesses remained mum till the date when they were contacted by the Police---Conduct of said witnesses, who were closely related to the deceased, had created doubt about the veracity of their statements and it was not safe to rely on such statements of the said two witnesses---One witness had stated that deceased came to his shop along with two friends and obtained motorcycle on rent from him and went away, whereafter said motorcycle was not returned to him---Evidence furnished by said witness was not reliable because he did not take any step for lodging any report with the Police regarding missing or misappropriation of said motorcycle---Weapon of offence "Bughda" was allegedly recovered from the place which was about 10 feet away from the place wherefrom dead body of the deceased was recovered; it did not appeal to common sense that when said "Bughda" was lying at a distance of only ten feet from the place of recovery of the dead body then why the same was not taken into possession on the date when the dead body was recovered---Said weapon of offence was recovered after 26 days of the recovery of the dead body from a place which was neither owned nor possessed by accused and said place was accessible to everybody---Witness of said recovery being resident of a place which was 50 Kilometers away from the place of occurrence, his evidence was not confidence-inspiring---When other evidence had not been considered reliable, medical evidence was of no avail to the prosecution---Real brother of accused who was also implicated in the case, had been acquitted by the Trial Court and no appeal was filed against his acquittal---Prosecution having failed to prove its case against the accused beyond any shadow of doubt, conviction and sentence of accused, was set aside, he was acquitted and was released, in circumstances.

Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120; Khurshid v. The State PLD 1996 SC 305 and Binyamin alias Khari and 2 others v. State 2007 SCMR 778 ref.

Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 rel.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Circumstantial evidence---Chain link should be so inter-connected with each other that its one end would touch the dead body, while the other end would go around the neck of accused; and if any chain link was missing then its benefit should be given to accused.

The State v. Manzoor Ahmad PLD 1966 SC 664; Asadullah and another v. State and another 1999 SCMR 1034; Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047; Sarfraz Khan v. The State 1996 SCMR 188; Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103; Ibrahim and others v. The State 2009 SCMR 407 and Muhammad Hussain v. The State 2011 SCMR 1127 rel.

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

----S. 302(b)---Appreciation of evidence---Medical evidence---Medical evidence could confirm the ocular evidence with regard to seat of injury and its duration, nature of injury and kind of weapon used for causing such injury, but it could not connect accused with the commission of crime, unless and until there was some other evidence.

Ghulam Mustafa and another v. State 2009 SCMR 916 rel.

(d) Criminal trial---

----Conviction of accused---Principles---Conviction could only be based upon unimpeachable evidence and certainty of guilt; and any doubt arising in the prosecution case must be resolved in favour of accused.

M.A. Ghaffarul Haq and S.M. Farhad Tirmizi for Appellant.

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

Zahid Iqbal Malik along with father of the Deceased for the Complainant.

Date of hearing: 9th May, 2012.

2013 P Cr. L J 910

[Lahore]

Before Sagheer Ahmad Qadri and Abdus Sattar Asghar, JJ

Rai MUHAMMAD ASIF NAWAZ---Petitioner

Versus

The STATE and others---Respondents

Writ Petition No.13591 of 2011, decided on 15th November, 2012.

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

----Ss. 9(c) & 15---Pakistan Prisons Rules, 1978, R. 216---Constitution of Pakistan, Arts.25 & 199---Constitutional petition---Remissions---Discrimination---Petitioner was convicted under Control of Narcotic Substances Act, 1997, and his grievance was that he was entitled to special remission under Rule 216 of Pakistan Prisons Rules, 1978---Validity---Policy of remissions formulated and issued by Punjab Government on 27-1-1993, did not offend any clause of the Constitution or any provision of law---Order passed by authorities declining special remissions to petitioner being convict/prisoner under Control of Narcotic Substances Act, 1997, did not suffer from any legal infirmity---Petition was dismissed in circumstances.

Shah Hussain v. The State PLD 2009 SC 460 and Nazar Hussain and another v. The State PLD 2010 SC 1021 rel.

Ch. Imran Raza Chadhar for Petitioner.

Mrs. Salma, Additional Advocate-General for the State.

2013 P Cr. L J 920

[Lahore]

Before Muhammad Qasim Khan, J

MUHAMMAD ASHFAQ---Petitioner

Versus

ADDITIONAL INSPECTOR-GENERAL OF POLICE (INVESTIGATION) PUNJAB, LAHORE and 3 others---Respondents

Writ Petition No.9719 of 2012, decided on 9th October, 2012.

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

----Ss. 156 & 173---Constitution of Pakistan, Art. 199---Constitutional petition---Reinvestigation/transfer of investigation after submission of final police report/challan under S.173, Cr.P.C.---Scope---Accused (petitioner) was declared as innocent by the police and report under S.173, Cr.P.C. was only submitted to the extent of the co-accused persons, however, Trial Court summoned the accused to face trial---Complainant filed application before Additional Inspector-General of Police for change of investigation and ultimately pursuant to a letter/order, the investigation was entrusted to a different officer---Validity---Complainant had not claimed anywhere that during investigation, the investigating officer did not record the statement of any of his witnesses; or that investigating officer wrongly entered statement of any of the witnesses under S.161, Cr.P.C.; or that complainant himself omitted to produce any document before the investigating officer; or that investigating officer did not consider any document produced by the complainant before making his final opinion; or that report under S.173, Cr.P.C. was in any way defective as it did not carry all the material tendered by the complainant at the time of investigation---Unless any of the said ingredients was alleged by the complainant, pointing serious flaw in the investigation, it might not be justified to allow reinvestigation of the case during subsistence of an earlier report under S.173, Cr.P.C., whereupon Trial Court had not only taken cognizance by framing charge but also summoned the accused---Trial Court in such circumstances had to proceed with the trial on the basis of report already submitted under S.173, Cr.P.C.---Constitutional petition was allowed and letter/order passed by Additional Inspector-General of police with regard to transfer of investigation was set aside.

Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31 and Muhammad Ashfaq v. Amir Zaman and others 2004 SCMR 1924 rel.

Liaqat Ali Virk v. Inspector-General of Police, Lahore and 8 others PLD 2010 Lah. 224 ref.

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

----Ss. 156 & 173---Reinvestigation after submission of final police report/challan under S.173, Cr.P.C.---Scope---No legal bar existed for reinvestigation of a criminal case even after submission of final report under S.173, Cr.P.C., however it was obligatory for the court to consider each case in its own peculiar perspective and reinvestigation might not be allowed in every case.

Bahadur Khan v. Muhammad Azam 2006 SCMR 373 rel.

Sardar Mehboob for Petitioner.

Mubashir Latif Gill, Assistant Advocate-General with Shoukat SHO.

Tahir Mehmood for Respondents.

2013 P Cr. L J 938

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

KHADIM HUSSAIN---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous Nos.9984-BC, 14363-BC and 14410-BC of 2012, decided on 7th December, 2012.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Qatl-e-amd, rioting armed with deadly weapons, unlawful assembly---Application for cancellation of bail, dismissal of---Infliction of injuries by several persons---Description of injuries to be given by complainant---Scope---Accused persons, eight in total, allegedly inflicted a beating on the deceased, whereafter the co-accused fired at and killed the deceased---Allegation against accused persons was of general beating---Post mortem report of deceased showed three injuries, one of which was a firearm injury, while the other two were blunt weapon injuries---Record did not clearly show as to who, out of the eight accused persons, had caused the blunt weapon injuries---Although complainant was not expected to give a graphic description of the seats of injuries but nevertheless he had to explain to some extent the infliction of the injuries when more than one person was nominated for beating the deceased---Individual liability of each accused was a matter of trial and such liability could not be determined at bail stage---Application for cancellation of bail awarded to accused persons was dismissed in circumstances.

Zafar Iqbal v. Muhammad Ilyas and another 2006 SCMR 150; Ehsan Akbar v. The State and 2 others 2007 SCMR 482; Mst. Noor Habib v. Saleem Raza and others 2009 SCMR 786; Haji Gul Rehman v. Imran-ud-Din and another 2009 SCMR 1179 and Shaukat Hayat v. The State 2010 SCMR 1931 ref.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Qatl-e-amd, rioting armed with deadly weapons, unlawful assembly---Cancellation of bail---Accused and co-accused persons allegedly inflicted a beating on the deceased, whereafter accused fired at and killed the deceased---Complainant had stated that fire was made by accused, which fact was authenticated by prosecution witnesses in their statements under S.161, Cr.P.C.---Weapon with live bullets was also recovered at the instance of accused---Sufficient material was available on record to connect accused with the charge of murder of deceased---Bail granted to accused by Trial Court was withdrawn in circumstances.

Rao Jabbar Khan for Petitioner.

Muhammad Ishaque, D.P.-G. with Ghazanfar Ali, S.-I.

Sajjad Ahmad for Respondent No.2 (in Criminal Miscellaneous No.9984-BC of 2012), for Respondents Nos.3, 5 and 6 (in Criminal Miscellaneous No.14363-BC of 2012) and for Respondent No.2 (in Criminal Miscellaneous No.14410-BC of 2012).

Rana Naveed Ashiq for Respondent No.4 (in Criminal Miscellaneous No.14363-BC of 2012).

2013 P Cr. L J 953

[Lahore]

Before Mehmood Maqbool Bajwa, J

Rana MUHAMMAD AHSAN RASOOL---Petitioner

Versus

The STATE and others---Respondents

Criminal Revisions Nos.321 and 336 of 2011, decided on 16th July, 2012.

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

----S. 3---Delay in conclusion of complaint due to non-appearance of accused---Non-bailable warrants of arrest, issuing of---Scope---Complainant (respondent) filed complaint against accused (petitioner) under S.3 of Illegal Dispossession Act, 2005---Court issued process in the name of accused to appear before the Court---Accused put his appearance before the Court, submitted surety bonds and copies were delivered to him, but later on he opted to remain absent---Court issued non-bailable warrant of arrest against accused---Validity---Accused did put his appearance before the Court but later on opted to remain absent with mala fide intention in order to delay conclusion of complaint---Trial Court made efforts to procure attendance of accused, without any success, which left the Court with no option but to issue non-bailable warrant of arrest against the accused---No exception could be taken to the such action of the Trial Court--- Revision petition was decided accordingly.

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

----Ss. 3 & 7---Possession of property given as an interim relief "during the trial"---Scope---Complaint was filed against accused and co-accused (petitioners) under S.3 of Illegal Dispossession Act, 2005---Complainant filed an application before Trial Court for possession of property in question, which was allowed and Court issued directions to accused and co-accused to surrender possession of property in favour of complainant as an interim measure---Validity---Grant of interim relief within the meaning of S. 7(1) of Illegal Dispossession Act, 2005 was subject to the condition, "during the trial"---Although copies had been delivered to accused and co-accused in the present case but charge had not been framed against them, therefore, question of commencement of trial did not arise---Interim relief granted by Trial Court was not legally sustainable and as such it was set aside---Revision petition was decided accordingly.

Ashiq Hussain and another v. Athar Sher and 2 others 2008 PCr.LJ 719; Edward Henry Louis v. Dr. Muhammad Safdar 2009 PCr.LJ 1359 and Rabart alias D.C. v. Additional Sessions Judge, Mian Channu, District Khanewal and 7 others PLD 2011 Lah. 34 rel.

Muhammad Aslam Khan Dhakkar for Petitioner.

Faisal Mehmood Tangwani and Rashid Rehman Khan for Respondent No.2.

Muhammad Amjad Rafique, Deputy Prosecutor-General for the State.

2013 P Cr. L J 971

[Lahore]

Before Mazhar Iqbal Sidhu, J

ASIF SHAHZAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.5023-B of 2012, decided on 29th January, 2013.

(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---Accused was not nominated in the F.I.R.---Except evidence of extra-judicial confession, which was joint in nature, no other evidence of substantive character existed to connect the accused with the commission of the crime---Regarding recovery of articles from accused, which belonged to the deceased, such evidence was relatable to corroborative piece of evidence---Material available on record, prima facie, made out a case of further inquiry favouring the accused---Accused was granted bail accordingly.

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

----Ss. 497 & 164---Bail---Joint extra-judicial confession---Scope---Evidence of joint extra-judicial confession was neither admissible nor relevant.

2012 SCMR 387 and 2012 SCMR 184 rel.

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

----S. 497---Bail---Commencement of trial---Plea that since trial of accused had commenced, therefore he should not be granted bail---Validity---Bail could be granted at any stage, even before deliverance of final judgment.

PLD 1989 SC 585 rel.

Malik Naseer Ahmad Thaheem for Petitioner.

Malik Riaz Ahmad Saghla, D.P.-G. for the State with Muhammad Zameer, S.-I. with record.

Sh. Muhammad Raheem for the Complainant.

2013 P Cr. L J 999

[Lahore]

Before Muhammad Yawar Ali, J

GHULAM RASUL---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, GUJRANWALA and 4 others---Respondents

Writ Petition No. 1988 of 2013, decided on 29th January, 2013.

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

----Ss. 22-A & 22-B---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Contempt of Court Ordinance (V of 2003), S. 12---Constitution of Pakistan, Art. 199---Constitutional petition---Petition under Ss. 22-A and 22-B, Cr.P.C. filed before Justice of Peace on basis of violation of a stay order in a civil suit---Maintainability---Civil suit with regard to disputed property was pending adjudication before the civil court, wherein stay was granted in favour of plaintiff (petitioner)---Plaintiff filed a contempt petition against the defendants in the civil suit for violation of stay order---Subsequently plaintiff also filed a petition under Ss. 22-A & 22-B, Cr.P.C. before Justice of Peace, who called a report from the police and dismissed the petition as being baseless on the ground that plaintiff attempted to lodge a criminal case against the defendants, when he had also filed a contempt petition---Validity---Version of plaintiff had not been affirmed by the police official in his report---Justice of Peace was right in not issuing direction for registration of case by holding that plaintiff had already filed a contempt petition for violation of stay order which would entail penal consequences---Allegations levelled against accused persons by the plaintiff entailed a factual inquiry, which could not be gone into by the High Court in its constitutional jurisdiction under Art.199 of the Constitution---Constitutional petition was dismissed accordingly.

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

----Ss. 22-A & 22-B---Power of Justice of Peace to issue directions for registration of F.I.R.---Scope---Ex-Officio Justice of Peace while seized of a petition under Ss. 22-A & 22-B, Cr.P.C. was not to act mechanically by issuing a direction for registration of F.I.R. in each and every case, which had to be decided on its own peculiar facts.

Mian Abdul Waheed v. Additional Sessions Judge, Lahore and 7 others 2011 PCr.LJ 438 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Allegations levelled in a constitutional petition filed before High Court entailing factual inquiry---Effect---Such allegations could not be gone into by the High Court while exercising its constitutional jurisdiction under Art. 199 of the Constitution.

Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 rel.

Ch. Qamar Riaz Hussain Basra for Petitioner.

2013 P Cr. L J 1022

[Lahore]

Before Sagheer Ahmad Qadri, J

Sardar BAHADAR MUGHAL---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.16992/B of 2012, decided on 7th December, 2012.

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

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque--- Bail, refusal of--- Non-bailable offence--- Habitual offender---Accused causing delay in conclusion of trial---Effect---Accused allegedly issued three cheques to the complainant, which were dishonoured on presentation---Section 489-F, P.P.C. was a non-bailable offence and grant of bail in such like offences was not right of an accused but a concession---Accused was already involved in three different cases similar to the present one---Counsel for accused was also delaying conclusion of trial by not appearing to cross-examine prosecution witnesses---Accused was not entitled to concession of bail in such circumstances---Bail petition was accused was dismissed accordingly.

Riaz Jafar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708 and Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488 ref.

Shameel Ahmed v. The State 2009 SCMR 174 rel.

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

----S. 497---Non-bailable offence---Bail---Scope---For non-bailable offences grant of bail was not right of an accused but a concession.

Shameel Ahmed v. The State 2009 SCMR 174 rel.

Mian Imam Bakhsh for Petitioner.

Muhammad Naeem Sheikh, Deputy Prosecutor-General for the State.

Pir Syed Anwer-ul-Hassan Gallani, for the Complainant.

Muhammad Ilyas, A.S.-I. with record.

2013 P Cr. L J 1031

[Lahore]

Before Abdul Sami Khan, J

ZARINA BIBI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.2629-B of 2012, decided on 17th July, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 34 & 109---Qatl-e-amd, attempt to commit qatl-e-amd, common intention, abetment---Bail, grant of---Statutory delay in conclusion of trial---Rule of consistency---Female accused---Only role attributed to accused was of abetment, which could be determined by the Trial Court after recording evidence--- Co-accused having similar role had already been granted bail--- Accused, a woman was behind bars for more than 16 months and her trial had not yet concluded---Delay in conclusion of trial was not attributable to the accused and she was neither a previous convict nor hardened, desperate or dangerous criminal or accused of an act of terrorism---Accused was admitted to bail accordingly.

Sajjad Hussain for Petitioner.

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

M. Aslam S.-I. with record.

2013 P Cr. L J 1043

[Lahore]

Before Abdus Sattar Asghar, J

ZAHIDA PARVEEN---Petitioner

Versus

The STATE and 2 others---Respondents

Criminal Revision No.84 of 2012, decided on 2nd October, 2012.

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

----S. 540---Penal Code (XLV of 1860), Ss. 419, 420, 467, 468, 471 & 109---Prevention of Corruption Act (II of 1947), S. 5(2)---Summoning of witnesses by court---Scope---Accused was alleged to have prepared a forged power of attorney in relation to complainant's property---Challan was submitted and charge was framed against accused---Complainant moved application before Trial Court for summoning Magistrate and an official of Forensic Science Laboratory as witnesses on grounds that during investigation sample papers were prepared by Magistrate and sent to said official of Forensic Science Laboratory and its report was part of judicial file, but despite such facts they had not been cited as witnesses in the challan, and that evidence of both of them was necessary for fair conclusion of trial---Validity---Accused presented copy of a cancellation deed wherein complainant had acknowledged execution of power of attorney in his favour---When the executant cancelling her power of attorney had acknowledged its execution, the cancellation thereof would not affect the validity or genuineness of cancelled power of attorney---Execution of power of attorney had been admitted by the complainant, therefore, there was no need to summon the witnesses in question as it would amount to sheer wastage of time of the Court besides delay in disposal of case---Trial Court had rightly dismissed application of complainant under S.540, Cr.P.C.---Revision petition was dismissed accordingly.

Mst. Mussarat Ara Khanum v. Umaid Ali and others PLD 1999 Quetta 36 rel.

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

----S. 540---Summoning of witnesses by court---Object and scope---Object of S.540, Cr.P.C. was to defend the interest of justice and not to defeat the same, however, a plea for summoning of a witness could not be allowed to prolong the proceedings of a trial.

Zafar Ullah Ladhar for Petitioner.

Khalid Parvez Upal, D.P.-G. for the State.

Mian Muhammad Suleman Joyia for the Respondents.

2013 P Cr. L J 1055

[Lahore]

Before Rauf Ahmad Sheikh, J

Mst. RUKHSANA BIBI---Petitioner

Versus

S.H.O. POLICE STATION CANTT. MULTAN and 3 others---Respondents

Writ Petition No.13182 of 2012, decided on 11th October, 2012.

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

----S. 491---Constitution of Pakistan, Art. 199---Constitutional petition---Habeas Corpus petition for recovery of minor/detenue---Forum, determination of---Minor/detenue detained in a district attached with the Principal Seat of the High Court---Mother filed petition for recovery of minor before that Bench of the High Court, from where minor was allegedly snatched by the father---Minor was removed by her father to a different district, where she was allegedly illegally detained---Mother contended that High Court had jurisdiction for whole of the Province, therefore, petition for recovery of minor could be filed before Bench of the High Court, from where the minor was allegedly snatched---Validity---All the areas of the Province fell within the appellate criminal jurisdiction of the High Court but different areas were attached with the Principal Seat and Benches of the High Court keeping in view the convenience of the litigant public---Petition under S.491, Cr.P.C. could be filed in the appellate criminal jurisdiction of the Bench where the detenue was illegally or improperly detained---Minor, in the present case, was allegedly illegally detained in a district, which was attached with the Principal Seat of the High Court, therefore, it was expedient for the ends of justice that present petition be filed at the Principal Seat---Place of removal of minor was immaterial for the purpose of jurisdiction to hear a petition under S.491, Cr.P.C. or under Art.199 of the Constitution---Present constitutional petition was disposed of with the observation that mother might file an application for recovery of minor before the Sessions Judge or at the Principal Seat of the High Court, where minor was allegedly detained.

PLD 2011 SC 17 distinguished.

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

----S. 491--- Constitution of Pakistan, Art. 199---Constitutional petition---Habeas corpus petition for recovery of minor/detenue---Forum, determination of---Place of removal of minor/detenue---Scope---Place of removal of minor/detenue was immaterial for the purpose of jurisdiction to hear a petition under S.491, Cr.P.C. or under Art. 199 of the Constitution.

Nadeem Ahmad Tarar for Petitioner.

2013 P Cr. L J 1102

[Lahore]

Before Sagheer Ahmad Qadri and Ibad-ur-Rehman Lodhi, JJ

MUHAMMAD IJAZ---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.2155-M of 2012 in Criminal Appeal No.402 with Murder Reference No. 223 of 2003, decided on 19th September, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 426(2-B) & 426(2-A)---Penal Code (XLV of 1860), S. 302---Constitution of Pakistan, Art. 185(3)---Petition for suspension of sentence, dismissal of---Leave to appeal granted by Supreme Court---Accused was convicted by Trial Court and High Court converted his death sentence into imprisonment for life---Petition for leave to appeal filed by accused before Supreme Court, against judgment passed by High Court was allowed---Accused sought suspension of sentence from High Court till final disposal of appeal filed before Supreme Court---Validity---Reasons on the basis of which Supreme Court passed leave granting order showed that plea raised by accused that he was responsible for sole injury and prosecution was not able to prove charge was to be looked into by Supreme Court itself as High Court had already passed a verdict and arguments advanced by accused had been repelled, therefore, at present stage High Court could not go into such controversies---No appeal was pending before High Court, therefore, S.426(2-A), Cr.P.C. was not applicable---Petition was dismissed in circumstances.

Atta Ullah alias Hasnain alias Hassan v. The State 2009 PCr.LJ 257 ref.

Gohar Razzaq Awan for Petitioner.

Rana Faheem Mahl for the Complainant.

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

2013 P Cr. L J 1119

[Lahore]

Before Ijaz Ahmad Chaudhry, C.J. and Mazhar Iqbal Sidhu, J

ABDUL GHAFFAR GHAFFERI---Petitioner

Versus

PROVINCE OF PUNJAB through Secretary S&GAD and 7 others---Respondents

Writ Petition No.20005 of 2011, decided on 13th September, 2011.

Constitution of Pakistan---

----Arts. 13 & 199---Constitutional petition---Halqa Patwari entering mutation in violation of a stay order---Proceedings against Halqa Patwari initiated before different forums---Double jeopardy, rule of---Applicability---Scope---Halqa Patwari (petitioner) entered a mutation in violation of a stay order passed by Executive District Officer (Revenue)---Complainants initially filed application before Senior Member Board of Revenue for initiation of departmental proceedings against revenue field staff, who were involved in attestation of mutation in presence of the stay order---Director-General Anti-Corruption Establishment also took up the matter upon an application filed by some of the complainants---National Accountability Bureau (NAB) authorities also initiated an inquiry---Plea on behalf of Halqa Patwari was that proceedings against him before different forums qua same allegations amounted to double jeopardy, and that it was a case of personal vengeance against him based on political pressure---Validity---Mutation was entered by Halqa Patwari in violation of stay order during pendency of certain appeals filed by complainants---Revenue hierarchy was probing into the conduct of the revenue field staff, whereas Anti-Corruption Establishment was considering the same from the angle of receiving illegal gratification by concerned revenue staff, while National Accountability Bureau (NAB) was holding an inquiry qua fraud played by unscrupulous persons in connivance with revenue field staff---Adjudication of the matter by different authorities from different angles would be helpful to bring out the truth, therefore, it would not be fair to halt proceedings initiated by different agencies to consider the matter from different angles---None of the forums had concluded its proceedings as yet---Claim of Halqa Patwari that he was being double jeopardized was misconceived in such circumstances---Constitutional petition was dismissed accordingly.

Barrister Muhammad Ahmad Pansota for Petitioner.

2013 P Cr. L J 1145

[Lahore]

Before Sardar Tariq Masood and Abdul Sami Khan, JJ

ATIQ NIAZI and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous Nos.123-B and 964-B of 2012, decided on 26th April, 2012.

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

----S. 498---Penal Code (XLV of 1860), S. 406---Criminal breach of trust---Ad interim pre-arrest bail, recalling of---Allegation against the accused (chief executive of the company) and co-accused (supervisor of the company) was that they had removed goods from the godown of the company---Contentions of the accused were that present case had been filed with mala fide intention and ulterior motives; that goods in question were removed by the directors of the company with the inclusion of the security guard; that it was not possible that such huge quantity of goods could be removed without the knowledge of the directors of the company; that accused was a previous non-convict; that accused had informed the bank regarding the removal of the goods but the bank authorities stopped him from registering a case, and that provisions of S.406, P.P.C. were not made out against the accused as the goods in question were not entrusted to him---Contentions of the co-accused were the same as that of the accused but he additionally contended that he being a supervisor only visited the godown after every fifteen (15) days to check whether the security guard was present on his duty or not, and that the directors of the company and bank authorities had joined hands with each other and removed the goods from the godown---Validity---Accused and co-accused were named in the F.I.R.---According to the agreement between the bank and the company, it was the responsibility of the accused and the co-accused to take care of the goods in question which were entrusted to them---Goods in question were under the custody of the accused and co-accused, when they were removed from the godown---Investigation officer found the accused and co-accused to be fully involved in the case and recovery was yet to be effected from both of them---Prima facie, the accused and co-accused were connected with the commission of the offence and were not entitled to the extraordinary concession of pre-arrest bail which was meant only to save innocent persons from undue harassment, humiliation and disgrace, while the accused and co-accused failed to fulfil such criteria for the relief of pre-arrest bail---Complainant of the case was a bank manager, who had no personal vendetta or grudge against the accused and co-accused to falsely implicate them in the case---Bail petitions of accused and co-accused were dismissed and ad interim pre-arrest bail granted to them was recalled.

Muhammad Rizwan v. The State 2008 YLR 2169 and Shakir Hussain v. The State PLD 1956 SC 417 ref.

Sarwar Sultan v. The State and another PLD 1994 SC 133 and Muhammad Arshad and another v. The State and another 1996 SCMR 74 rel.

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

----S. 498---Penal Code (XLV of 1860), S. 406---Criminal breach of trust---Grant of pre-arrest bail to the accused when recovery was to be effected from him---Effect---When recovery was to be effected, grant of pre-arrest bail meant that accused was exempted from joining the investigation because of which the prosecution case might suffer for want of recovery of incriminating articles and other material, which might be necessary to connect the accused with the commission of the alleged crime.

Sarwar Sultan v. The State and another PLD 1994 SC 133 rel.

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

----S. 498---Penal Code (XLV of 1860), S. 406---Grant of pre-arrest bail---Grounds---Pre-arrest bail is granted only in those matters where it would appear that the registration of the case was based on enmity, mala fide or where no offence was shown to have been committed on the very face of the record.

Muhammad Arshad and another v. The State and another 1996 SCMR 74 rel.

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

----S. 498---Penal Code (XLV of 1860), S. 406---Pre-arrest bail---Grounds--- Previous non-conviction of the accused--- Scope---Previous non-conviction was not a ground for grant of pre-arrest bail.

Aasim Hafeez for Petitioner (in Criminal Miscellaneous No.123-B of 2012).

Iqbal Khurshed Mughal for Petitioner (in Criminal Miscellaneous No.964-B of 2012).

Azam Sultan Sehrwardi for the Complainant.

Khurram Khan, D.P-G. with Arif ASI.

2013 P Cr. L J 1177

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

Malik MUHAMMAD SADIQ---Petitioner

Versus

STATION HOUSE OFFICER and others---Respondents

Writ Petition No.2948 of 2012, decided on 9th February, 2012.

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

----Ss. 22-A, 22-B & 154---Constitution of Pakistan, Art. 199---Constitutional petition---Duties of Justices of the Peace---Scope---Petitioner had challenged the order of the Ex-Officio Justice of Peace by which he directed Station House Officer (SHO) to look into the matter and to proceed in accordance with law---Contention of petitioner was that Ex-Officio Justice of Peace without applying his legal mind to the facts narrated in the application under Ss.22-A & 22-B, Cr.P.C. had issued direction against the petitioner, that civil matter was pending between the parties in civil court---Validity---Orders of the type issued by the Ex-Officio Justice of Peace was disapproved by High Court as same were non-speaking in nature---Such ambiguous orders left an aggrieved person at the mercy of a police official for examining the act complained of, when same police official had not earlier entertained the application of the complainant for taking proceedings under S.154, Cr.P.C., who was subsequently constrained to knock the doors of the court---Order of Justice of Peace was set aside and he was directed to re-consider the application of the petitioner and if from the contents of the application any cognizable case was made out, he was to issue directions in clear terms to SHO concerned for registration of the case---Constitutional petition was disposed of accordingly.

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

----Ss. 22-A, 22-B & 154---Constitution of Pakistan, Art. 199---Constitutional petition---Duties of Justices of Peace---Scope--- Law cast a duty upon the Justice of Peace for considering the contents of the petition filed under Ss. 22-A & 22-B, Cr.P.C., to examine the material available on record for determining if any cognizable offence was made out therefrom or not, and if need be to examine the complainant/petitioner as well---Justice of Peace could also seek a report from the SHO of the police station concerned in the matter---In appropriate cases, person against whom a direction for registration of case was sought, could also be summoned in the court for showing cause as to why direction for registration of case should not be issued against him--- Calling of aggrieved person was based on the analogy that SHO before submitting report to the Court, summons both parties and after hearing them dispatches same to the court with his own finding, thus, if report of SHO was considered, in which both parties had already been heard, then there was no harm in calling any party in court for arriving at a just conclusion---Such practice, if adopted, would advance the principle of natural justice, i.e. audi alteram partem---Justice of Peace should apply his legal mind to facts and circumstances of matter under his consideration, determine the cognizability of an offence himself even if he had to examine the complainant or summon the respondent and then to make clear and unambiguous direction, for taking proceedings under S.154, Cr.P.C., which he should implement himself instead of taking help of police official.

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

----Ss. 22-A, 22-B & 154---Constitution of Pakistan, Art. 199---Constitutional petition---Duties of Justices of Peace---Scope---Practice of Justice of Peace to refer the matter to the police authorities for implementation of their directions for registration of a case when petitioner again complains through separate application about indifferent attitude of SHO towards implementation of directions, was deprecated by the High Court with the observation that adoption of such practice had increased the work load of the higher judiciary, and it was the Justice of Peace who was competent and equally enjoyed jurisdiction to call upon the SHO of police station concerned , where direction was sent to him for implementation, to appear in person in court for showing cause as to why he had not complied with the orders---Courts had to be assertive and should jealously watch implementation of their orders, and matters could not be left at the will of persons, who were already reluctant in performing their duties, bestowed upon them by the law---Judicial officer who failed to implement his own order, could be treated as an inefficient judicial officer, which observation may be reflected in his annual confidential report by his initiating authority.

Ch. Nemat Ali Nagra for Petitioner.

Wali Muhammad Khan, Assistant Advocate-General Punjab on Court's call.

2013 P Cr. L J 1190

[Lahore]

Before Shujaat Ali Khan, J

MUHAMMAD BOOTA---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.9669/B of 2012, decided on 8th August, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 201, 109 & 34---Qatl-e-amd, causing disappearance of evidence of offence, or giving false information to screen offender, abetment, common intention---Bail, grant of---Further inquiry---Accused and co-accused were alleged to have committed the murder of complainant's son (deceased)---Contentions of accused were that no active role had been attributed to him either in the F.I.R. or in the subsequent private complaint; that two co-accused had already been acquitted of the charge and another co-accused was out of jail due to a compromise between the parties; that one of the eye-witnesses to the occurrence was convicted and sentenced to death in connection with a criminal case; that other two eye-witnesses had tendered their affidavits qua innocence of accused and also got their statements recorded on oath before the Trial Court, and that complainant of the case had already died---Validity---F.I.R. attributed no active role to the accused whereas private complaint mentioned that at time of occurrence, accused twisted arms of the deceased as a result whereof he fell on the ground and was subsequently shot by one co-accused---Private complaint also referred to statement made by the deceased immediately before his death, wherein it was mentioned that deceased was killed because he had abused one co-accused---Deceased had not attributed any role to the accused and only stated that he was present at the spot---No active role had been attributed to accused, in such circumstances, and question of his vicarious liability could be determined by Trial Court---Two eye-witnesses had not only submitted their affidavits in court regarding innocence of accused but also made their statements on oath stating therein that they deposed against co-accused during trial due to undue influence and pressure exerted by the complainant---Accused was declared innocent in the first investigation---Fact that accused was declared guilty in subsequent investigation could not be used to refuse bail to him---Trial had not yet commenced and conclusion of same was not in sight---Question as to whether statement of complainant (since dead) made against co-accused during his trial could also be used against accused would be answered by the Trial Court specially when said statement was recorded in absence of accused and he was not afforded an opportunity to cross-examine the complainant---Accused could not be denied bail on the ground that he remained fugitive from law for a considerable period, when he had made out a case for further inquiry---Case was one of further inquiry and accused was admitted to bail accordingly.

Qamar alias Mitho v. The State and others PLD 2012 SC 222; Muhammad Nawaz alias Najja v. The State 1991 SCMR 111 and Aurang Zaib and 3 others v. The State 2009 PCr.LJ 1169 ref.

Mitho Pitafi v. The State 2009 SCMR 299; Muhammad Irfan and others v. The State and others 2012 PCr.LJ 625; Ali Gul v. The State 2012 YLR 1076; Muhammad Hayat and others v. The State 1988 SCMR 474; Muhammad Nawaz and others v. The State 1989 PCr.LJ 1126; Ali Gul and 3 others v. The State 1986 PCr.LJ 433; Muhammad Haroon and another v. The State 1994 SCMR 2161; Afraaz Mahmood v. The State and others 2012 PCr.LJ 746; Amir v. The State 1973 PCr.LJ 205; Muhammad Rafique v. The State 2008 SCMR 678; Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182; Ch. Javaid Riaz v. The State 2007 PCr.LJ 1332 and Aurang Zaib and 3 others v. The State 2009 PCr.LJ 1169 ref.

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

----S.497(2)---Bail---Case of further inquiry---Commencement of trial---Effect---Where an accused succeeded in establishing that his case fell under S.497(2), Cr.P.C., he could not be refused bail merely on account of commencement of trial.

Afraz Mehmood v. The State and others 2012 PCr.LJ 746 rel.

Ch. Faqir Muhammad for Petitioner.

Hamayun Aslam, D.P.G. with Ghulam Murtaza, ASI for the State.

Luqman Ayub for the Complainant.

2013 P Cr. L J 1208

[Lahore]

Before Muhammad Anwaarul Haq and Abdus Sattar Asghar, JJ

AMJAD SHAKOOR---Appellant

Versus

DPO and others---Respondents

I.C.A. No.717 of 2011, decided on 12th June, 2012.

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

----Ss. 22-A, 22-B & 200---Constitution of Pakistan, Art.199---Law Reforms Ordinance (XII of 1972), S. 3---Intra Court appeal---Powers of Ex-Officio Justice of Peace---Directions for registration of case---Scope---Constitutional petition---Availability of alternate remedy of private complaint---Effect---Complainant (appellant) obtained a car on lease from a bank and entrusted the same to the accused (respondent)---Accused damaged the car in an accident and it was agreed between the parties that the accused would retain the car and pay the remaining instalments to the bank, but allegedly the accused instead of paying the instalments to the bank misappropriated the car, occasioning the complainant to lodge an F.I.R. against the accused under S.406, P.P.C.---Subsequently the accused allegedly sold the car after preparing forged documents, against which the complainant moved an application before the Justice of Peace under Ss.22-A & 22-B, Cr.P.C., which application was dismissed on the basis that an F.I.R. had already been lodged against the accused in respect of misappropriation of the car in question---Complainant filed constitutional petition before the High Court assailing said order of the Justice of Peace, but same was dismissed on the grounds that an alternative remedy of filing private complaint was available to the complainant---Contentions of the complainant were that Single Judge of High Court while hearing the constitutional petition over looked the fact that the previous F.I.R. related to a different offence, whereas contents of the petition under S.22-A & 22-B, Cr.P.C., revealed commission of a different offence; that the Single Judge of High Court ignored the mandatory provisions of S.154, Cr.P.C. which stated that whenever an occurrence constituting a cognizable offence was reported, the police was bound to register the case, and that availability of an alternate remedy did not bar the filing of constitutional petition, if the alternative remedy was not efficacious---Validity---In terms of S.22-A(6), Cr.P.C., the Ex-Officio Justice of Peace might issue appropriate directions to police authorities concerned on a complaint regarding non-registration of a criminal case---Word "may" used in S.22-A(6), Cr.P.C., conferred discretionary power upon the Ex-Officio Justice of Peace, who was obliged to exercise powers vested in him under the law in a judicious manner with application of mind taking into consideration the facts and material of the case---In the present case, Ex-Officio Justice of Peace after procuring the report from the Station House Officer (SHO) and reaching the conclusion that a case with regard to alleged misappropriation of the car in question had already been registered, rightly declined the petition under S.22-A & 22-B, Cr.P.C., for registration of another case---Alternate remedy of private complaint in terms of S.200, Cr.P.C. was also available to the complainant, which manifested a complete mechanism to redress the grievance of the complainant in accordance with the law---No legal infirmity was found in the impugned orders---Intra-court appeal was dismissed, in circumstances.

Khizar Hayat and others v. Inspector-General of Police, Punjab, Lahore and others PLD 2005 Lah. 470 and Rai Muhammad Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 SC 691 rel.

(b) Words and phrases---

----"Adequate"---Definition.

(c) Words and phrases---

----"Efficacious"---Definition.

Abid Aziz Sheikh for Appellant.

Rai Ishfaq Ahmed Kharal, A.A.-G. with Munir Ahmed, S.I. for the State.

Date of hearing: 12th June, 2012.

2013 P Cr. L J 1230

[Lahore]

Before Abdus Sattar Asghar, J

AKHTAR ALI---Petitioner

Versus

The STATE and 3 others---Respondents

Writ Petition No.9768 of 2012, heard on 22nd June, 2012.

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

----S. 310-A--- Constitution of Pakistan, Art. 199--- Constitutional petition--- Quashing of F.I.R.--- Giving a female in marriage or otherwise in badal-i-sulh---Cognizability of S.310-A, P.P.C.---Scope---Allegation against the accused (petitioner) was that he had forcibly handed over the complainant (respondent) in "vanni" to her alleged husband--- Contentions of the accused were that the complainant was lawfully wedded to her alleged husband ; that the offence under S.310-A, P.P.C., was non-cognizable, therefore, registration of impugned F.I.R. by the police was unlawful, and that before registration of the impugned F.I.R. the complainant had lodged a suit for dissolution of marriage against her alleged husband without agitating the plea of 'vanni' in the contents of the plaint---Validity---Schedule-II attached with the Criminal Procedure Code, 1898, which furnished tabular statements of offences, clearly described that offence under S.310-A, P.P.C., was cognizable---During cross-examination of the complainant in the proceedings of the dissolution of marriage suit, it was categorically suggested that her hand was given to her alleged husband in 'badal-i-sulh'---Accused had been found guilty during the police investigation and was accordingly placed in column No.3 of the report under S.173, Cr.P.C.---Supreme Court had also taken up the present matter in exercise of its suo motu jurisdiction and adjourned the matter to a further date--- Accused had not been able to make out any exceptional ground for quashing of F.I.R., therefore, he had no case to invoke the constitutional jurisdiction of the High Court---No factual or legal infirmity was found in the registration of the F.I.R.---Constitutional petition was dismissed, in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Quashing of F.I.R.---Grounds.

Grounds ordinarily considered for quashing of F.I.R. were either jurisdictional error, or violation of any provision of law, or allegation failing to constitute an offence. [p. 1233] C

(c) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), S. 561-A---Constitutional petition---Quashing of F.I.R.---Power of High Court under Art.199 of the Constitution and S. 561-A, Cr.P.C.---Scope---High Court had no jurisdiction to quash the F.I.R. while exercising constitutional power under Art. 199 of the Constitution or under S. 561-A, Cr.P.C., except in exceptional circumstances.

Dr. Ghulam Mustafa v. The State and others 2008 SCMR 76 rel.

Muhammad Zafar Choudhry and Ms. Kishwar Naheed for Petitioner.

Muhammad Saeed Tahir Solehri, A.A.-G. with Fida Bakhsh, A.S.-I. for the State.

Azmat Ali Chohan for Respondent No.4.

Date of hearing: 22nd June, 2012.

2013 P Cr. L J 1240

[Lahore]

Before Ali Baqar Najafi, J

SAEED AHMAD---Petitioner

Versus

STATION HOUSE OFFICER POLICE STATION SADDAR, SANGLA HILL---Respondent

Criminal Miscellaneous No.963-H of 2013, decided on 11th June, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 491 & 498---Habeas corpus petition converted into protective pre-arrest bail---Petitioner filed present petition under S.491, Cr.P.C. seeking recovery and production of detenu from the illegal custody and confinement of a Station House Officer (SHO)---Plea of petitioner was that some persons made an assault on the detenu, whereafter he was medically examined at a health centre and that detenu moved an application for registration of F.I.R. but instead police arrested him without justification and cogent reasons---Plea of police was that detenu was arrested in connection with an F.I.R. in which he was nominated as an accused---Validity---Bailiff of High Court was deputed to recover detenu from the police station where he was detained---Bailiff could not find entry of arrest of detenu in the daily diary---Report of bailiff and medico-legal certificate of detenu revealed that he was brought to health center by the police---F.I.R. for which detenu was allegedly arrested, did not mention his name and instead name of some other person had been arrayed therein as an accused---Bailiff reported that file of said F.I.R. was also not available in the police station and was statedly in the custody of a police official, who was not present in the police station at the time of bailiff's visit---Neither complainant of said F.I.R. nor Station House Officer was present in court to account the veracity of said F.I.R.---Prima facie non-production of the record before the bailiff was not only disobedience of the order of the High Court but also an effort to show the arrest of detenu by concerned police official---Admittedly detenu was not produced before any court of law---Detention of detenu was illegal and unlawful in such circumstances---Since arrest of detenu was illegal, therefore, he was granted protective pre-arrest bail and set at liberty---Habeas corpus petition was disposed of accordingly.

Nadeem Shibli for Petitioner.

Saif Ullah, S.-I./SHO along with Muhammad Imran Chohan, Advocate.

Jehangir S.-I. with Mian Imran Rahim, D.P.-G.

Muhammad Imran Bailiff.

2013 P Cr. L J 1261

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

SAEED AHMAD MUGHAL---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 5727-B of 2013, decided on 24th May, 2013.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S. 489-F---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), Ss. 7 & 20---Dishonestly issuing a cheque---Ad interim pre-arrest bail, confirmation of---Allegations against the accused were that he, while securing house building finance facility from the complainant-Bank issued 14 cheques for liquidating his liability which cheques were dishonoured when presented for encashment---While securing house building finance facility from the complainant-Bank the accused had also executed mortgage-deed in favour of the complainant-Bank undertaking that in case he failed to liquidate his liability the same could be satisfied through foreclosure or by selling the mortgaged property---Bank, at the time of execution of such mortgage deed in one sitting also took 14 cheques from the accused-borrower for liquidation of the liability---Issuance of the cheques did not indicate the dishonest intention of the accused to avoid his liability when his property stood mortgaged with the Bank and it was mandatory as per provisions of S.489-F, P.P.C. that cheque must have been issued with dishonest intention---In the present case, such dishonest intention was not apparent from the signing of the cheques by a person at the time of availing finance facility and even otherwise the Bank had sufficient security with it in the form of mortgage deed for the repayment of the loan taken by the accused---Financial Institutions (Recovery of Finances) Ordinance, 2001, was complete code in itself and provided procedure for any misdeed done by defaulting borrower including the criminal acts performed by him and S.7 of the Ordinance covered both civil and criminal acts of defaulting party by providing prosecution under S.20 of the Ordinance--- Police had no jurisdiction to register F.I.R. in case relating to finance facility availed by the borrower from banking company--- Banking Court was the right forum for banking company for redressal of the default committed by the borrower---Accused/borrower had mortgaged his property with the banking company, therefore, lodging the case with the police by the banking company against the borrowed was without lawful authority and spoke a lot about the mala fide of the banking company---Petition for confirmation of bail was allowed in circumstances.

Petitioner in person.

Muhammad Ishaque, D.P.-G. with M. Yaqoob, S.-I. for the State.

2013 P Cr. L J 1300

[Lahore]

Before Sh. Najam Ul Hasan and Mehmood Maqbool Bajwa, JJ

MUHAMMAD AMIN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.43-J of 2008 and Murder Reference No.144 of 2007, decided on 23rd January, 2013.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt--- Concocted story--- Motive unproved--- Medical evidence contradicting ocular account---Delay in recording F.I.R.---Delay in conducting post-mortem of deceased---Related and unnatural witnesses---Effect---Complainant alleged that 5 to 6 days prior to the occurrence accused and deceased had a quarrel; that on the day of the occurrence accused came to the house of deceased, while armed, and took him away on the pretext of attending a marriage, whereafter prosecution witnesses followed the accused and saw him firing at the deceased---Trial Court convicted accused under S.302(b), P.P.C. and sentenced him to death---Validity---According to the complainant accused and deceased had quarrelled prior to the incident, then it was not understandable why the deceased accompanied the accused, who was allegedly armed at the time, and even the witnesses did not bother to stop him---Assuming that relations between accused and deceased had become cordial and dispute between them had been patched up, then there was no need for prosecution witnesses to follow the accused---Eye-witnesses followed the accused and allegedly watched him murder the deceased whereafter they immediately came back to inform the complainant, but no one considered it appropriate to inform the police and rather chose to search for the dead body of deceased---Complainant alleged that they searched for deceased's body the whole night, however site plan showed that place of alleged occurrence, which was seen by the prosecution witnesses, and the place from where dead body was recovered, were not far apart, therefore, complainant must have located the body within a short span of time---Since F.I.R. was lodged after a delay of 12 hours, it was clear that dead body was found by the complainant without much delay, whereafter the whole story was concocted and reported to the police---Post-mortem was conducted 22 hours after the incident, without any explanation for such delay---One of the injuries on the deceased was blackish and according to the doctor the same was a result of fire made from close range, whereas prosecution story indicated that firing was made from a distance of 144 feet---Even otherwise F.I.R. was registered after recovery of dead body and as such seat of injuries was in the knowledge of the complainant so the medical evidence was of no help to the prosecution case---No crime empties were found at or around the place of occurrence--- All prosecution witnesses were closely related and not independent or unconcerned witnesses---Possibility of occurrence being unseen could not be ruled out---Prosecution had not proved its case beyond reasonable doubt---Appeal was allowed, conviction and sentence of accused were set aside and he was acquitted of the charge.

(b) Criminal trial---

----Witnesses related to deceased, evidence of--- Appreciation of evidence--- Scope--- When witnesses were closely related and not independent or unconcerned, the ocular account had to be examined very carefully and should only be accepted if the same was corroborated by other attending circumstances of independent source.

Muhammad Anwar Khokhar, Defence counsel appointed at State Expense for Appellant.

Shahid Bashir Chaudhry, Deputy Prosecutor-General for the State.

Date of hearing: 23rd January, 2013.

2013 P Cr. L J 1322

[Lahore]

Before Muhammad Qasim Khan, J

JAMEEL AHMAD---Petitioner

Versus

HOME SECRETARY, GOVERNMENT OF PUNJAB, LAHORE and 4 others---Respondents

Writ Petitions Nos.3765, 4281 and 3655 of 2013, decided on 19th April, 2013.

(a) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1961)---

----S. 3(1)--- Constitution of Pakistan, Art. 199--- Constitutional petition---Preventive detention---Judicial review---Scope---Satisfaction of authorities---Extent---Edifice of satisfaction is to be built on foundation of evidence, as conjectural presumption cannot be equated to that of "satisfaction", and it is subjective assessment and there can be no objective satisfaction---In exercise of jurisdiction under Art.199 of the Constitution, if High Court comes to conclusion that grounds mentioned in detention order are not supported by sufficient material, then there is nothing to stop High Court from exercising power of judicial review.

Federation of Pakistan through Secretary, Ministry of Interior, Islamabad v. Mrs. Amatul Jalil Khawaja and others PLD 2003 SC 442 rel.

(b) Words and phrases---

----"Information"---Meaning.

Black's Law Dictionary Sixth Edition (Centennial Edition (1891-1991) rel.

(c) Words and phrases---

----"Sufficient"---Meaning.

Black's Law Dictionary Sixth Edition (Centennial Edition (1891-1991) rel.

(d) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1961)---

----S. 3(1)---Anti-Terrorism Act (XXVII of 1997), S. 11-L & Fourth Schedule---Criminal Procedure Code (V of 1898), S. 154---Constitution of Pakistan, Art. 199---Constitutional petition---Preventive detention---Procedure---Petitioners were aggrieved of detention order passed against them by authorities for having contacts with proscribed organizations---Validity---Before passing detention order, authorities must have recourse to S.154, Cr.P.C., when allegations levelled against detenus in detention orders constituted a criminal offence under Anti-Terrorism Act, 1997, Penal Code, 1860, or any other law, as most of the allegations levelled against detenus were criminal offences---Person who had received information about involvement of a person in offence covered under Anti-Terrorism Act, 1997, and he believed or suspected that someone had committed an offence under such Act, that person was under legal compulsion to disclose such belief or suspicion to police officer---Neither names of detenus were ever placed in Fourth Schedule of the Act, nor they were proceeded against under Anti-Terrorism Act, 1997, for committing criminal offences covered by law---No other material "sufficient" to justify detention orders passed against petitioners was available---High Court, in exercise of Constitutional jurisdiction, set aside detention orders passed against petitioners--- Petition was allowed in circumstances.

Federation of Pakistan through Secretary, Ministry of Interior, Islamabad, v. Mrs. Amatul Jalil Khawaja and others PLD 2003 SC 442; Muhammad Ayaz Khan and 6 others v. The District Magistrate, Batagram and another 1995 PCr.LJ 587 and Gulzar Ahmad v. District Magistrate and another 1998 PCr.LJ 1790 rel.

Mehmood Khan Ghouri for Petitioner.

Mirza Muhammad Salim Baig, Additional Advocate-General, Mubashir Latif Gill, Assistant Advocate-General and Mazhar Jamil Qureshi, Assistant Advocate-General with Rashid Minhas, Law Officer, Home Department, Waqar Hussain Deputy Secretary/Internal Security, Lahore, Iftikhar Ahmad SP, Noor Elahi and Liaqat Ali Sub-Inspectors for Respondents.

2013 P Cr. L J 1335

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

NAEEM alias DEEMI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.271-J and Murder Reference No.445 of 2007, heard on 17th May, 2012.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Qatl-e-amd, common intention--- Appreciation of evidence---Benefit of doubt---Prosecution witness who was son-in-law of the deceased was closely related to the complainant party and could not justify his presence at the spot at the time of occurrence---Said prosecution witness though had no enmity with accused, but absence of enmity of a prosecution witness with accused, would not mean that whatever he had stated, be taken as gospel truth and apostle reality---Court had to see as to whether the statement of prosecution witness was confidence-inspiring and trustworthy to the extent of role assigned to the accused---Accused was not named in the F.I.R., but was implicated in the case later on---Description or any specific identification mark of accused, was also not mentioned in F.I.R.---Role of accused during the occurrence were not described by the witnesses at the time of identification parade, which was always considered an inherent defect in the prosecution evidence---Holding of identification parade of accused was meaningless in circumstances---No empty was recovered from the place of occurrence, and the report of Forensic Science Laboratory was only to the extent that pistol was in working condition---Alleged recovery of pistol from the possession of accused, was of no avail to the prosecution---Evidence of the sole eye-witness was not confidence-inspiring and the prosecution case qua involvement of accused in the case was highly doubtful---Alleged recovery of pistol from the possession of accused, did not connect him with the alleged crime---Prosecution having failed to prove its case against accused beyond shadow of doubt, conviction and sentence recorded against accused by the Trial Court, were set aside extending him benefit of doubt and accused was released, in circumstances.

Zulfiqar Ali v. The State 2008 SCMR 796 distinguished.

Muhammad Pervez and others v. The State and others 2007 SCMR 670 and Farman Ahmed v. Muhammad Inayat and others 2007 SCMR 1825 ref.

Shafqat Mehmood and others v. The State 2011 SCMR 537; Bacha Zeb v. The State 2010 SCMR 1189 and Sabir Ali alias Fauji v. The State 2011 SCMR 563 rel.

Haider Rasool Mirza Defence Counsel and Nazim Ali Awan for Appellant.

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

Aqeel Afzal Awan for the Complainant.

Date of hearing: 17th May, 2012.

2013 P Cr. L J 1346

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

MUHAMMAD ASHRAF alias KALA and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.2085 of 2005 and Murder Reference No.342, heard on 28th February, 2012.

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

----S. 302(b)/34---Qatl-e-amd, common intention---Appreciation of evidence---Benefit of doubt---No eye-witness of incident was available and prosecution case was based on circumstantial evidence, which consisted of Wajtakkar; dying declaration; motive; extra-judicial confession; recovery of pistol and positive report of Forensic Science Laboratory---Sole evidence of Wajtakkar, was recorded five days after occurrence and no explanation of said delay had been given---Presence of said witness having not been shown in the site plan, evidence of said witness/Wajtakkar was not worthy of reliance---Alleged dying declaration was not made in presence of the doctor or any staff member of hospital and was not recorded by any Police Officials---Alleged dying declaration before the prosecution witnesses, who were real brothers of the deceased, could hardly be termed as dying declaration---Evidence of prosecution in respect of dying declaration, was not reliable in circumstances---Witness of alleged extra-judicial confession, in his statement had not given the date or time of alleged extra judicial confession---Statement of said witness was recorded by the Police after about 26 days of the occurrence; without any plausible explanation for such inordinate delay---Said prosecution witness, neither was holding any important post/office, nor was a person in authority or had any influence over the complainant party to affect a compromise between accused persons and the complainant---Prosecution evidence of extra-judicial confession, in circumstances, was not worthy of reliance---Motive as alleged by the prosecution, had not been established in the case---Pistol was allegedly recovered from possession of accused after 8 days of his arrest---Empty was also sent to the office of Forensic Science Laboratory with considerable delay---Evidence of recovery, being only of corroborative in nature, conviction of accused persons could not be sustained merely on the basis of recovery and positive report of Laboratory---Prosecution having failed to prove its case against accused persons beyond any shadow of doubt, conviction and sentence awarded to accused persons by the Trial Court, were set aside extending them benefit of doubt and were released.

Muhammad Sultan v. Muhammad Aslam and another 1988 SCMR 857 and Ghulam Hussain alias Hussain Bakhsh v. The State and another PLD 1994 SC 31 ref.

Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231; Tahir Javed v. The State 2009 SCMR 166; Muhammad Afzal alias Abdullah and others v. The State and others 2009 SCMR 436; Abdul Mateen v. Sahib Khan and others PLD 2006 SC 538; Muhammad Yaqub v. The State 1971 SCMR 756 and Nek Muhammad and another v. The State PLD 1995 SC 516 rel.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Circumstantial evidence---Where case was based on circumstantial evidence, chain link should be so inter-connected with each other that its one end touched the dead body, while the other end would go around the neck of accused---If any chain link was missing, then its benefit should be given to accused.

The State v. Manzoor Ahmad PLD 1966 SC 664; Asadullah and another v. State and another 1999 SCMR 1034; Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047; Sarfraz Khan v. The State 1996 SCMR 188; Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103; Ibrahim and others v. The State 2009 SCMR 407 and Muhammad Hussain v. The State 2011 SCMR 1127 rel.

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

----Arts. 46 & 133---Dying declaration---Credibility of evidence---Dying declaration or the statement of a person, without the test of cross-examination, was a weak kind of evidence; and its credibility, would depend upon the authenticity of the witnesses, and the circumstances under which it was alleged to have been made.

Mst. Zahida Bibi v. The State PLD 2006 SC 255 rel.

Shoaib Zafar for Appellants.

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

Naseer-ud-Din Khan Nayyar for the Complainant.

Date of hearing: 28th February, 2012.

2013 P Cr. L J 1369

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

MUHAMMAD JAMEEL and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous 17237/B of 2012, decided on 21st December, 2012.

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

----S. 498---Penal Code (XLV of 1860), Ss. 376 & 379---Rape, theft---Ad interim pre-arrest bail, confirmation of---Delay in lodging F.I.R.---F.I.R. lodged with ulterior motives---Mala fide of complainant---Ocular evidence in conflict with medical evidence---Improbable occurrence---Effect---Accused and co-accused were real brother and sister inter se---Co-accused allegedly took away complainant's daughter/victim from her house, whereafter accused allegedly committed zina with her on gun point---Accused and co-accused were also alleged to have grabbed gold ornaments from the victim---Allegation of zina was made with a delay of one and a half months without rendering any explanation in such regard---Complainant/father of victim stated in court that accused and co-accused called the trouble upon themselves as they refused to hand over gold and cash belonging to the victim, which statement reflected the intent of the complainant qua lodging of present F.I.R. in order to procure/settle dispute over gold and money---Medical evidence was in conflict with ocular evidence---Accused and co-accused were real brother and sister inter se and it did not appeal to reason that a sister would be instrumental in facilitating her brother for committing such a heinous offence---Mala fide of complainant was apparent from the facts and circumstances of the case---Ad-interim pre-arrest bail already granted to accused and co-accused was confirmed, in circumstances.

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

----S. 498---Pre-arrest bail---Merits of the case---Scope---While delivering order with reference to pre-arrest bail, merits of the case could be touched upon by the courts for the safe administration of criminal justice.

Meeran Bux v. The State and another PLD 1989 SC 347 rel.

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

----S. 498---Pre-arrest bail---Grounds---Provisions of pre-arrest bail were to be invoked where for some extraneous considerations unfounded charge was brought against innocent persons for humiliation, unjustified harassment and for disgracing them by trumped charges.

Dr. Abdul Sattar v. Abdur Rahim and 3 others 1990 PCr.LJ 630 rel.

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

----Ss. 497 & 498---Bail---Mala fide of complainant---Scope---Court could look into and evaluate mala fide from the facts and circumstances of the case.

Ajmal Khan v. Liaqat Hayat and another PLD 1998 SC 97 and Syed Muhammad Firdaus and others v. The State 2005 SCMR 784 rel.

Muhammad Shujaat Malik for Petitioner.

Mian Muhammad Awaiz Mazhar, Deputy Prosecutor-General and Abdul Qayyum, A.S.-I. with Record for the State.

Complainant in person.

2013 P Cr. L J 1379

[Lahore]

Before Ijaz ul Ahsan, J

HINA JAVAID---Petitioner

Versus

The STATE and 3 others---Respondents

Criminal Miscellaneous No.372-M of 2010, decided on 9th April, 2013.

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

----Ss. 200 & 561-A---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Private complaint---Quashing of proceedings---Private complaint intended to harass, intimidate and victimize the accused---Husband alleged that his wife (petitioner) had issued him a cheque of Rs. 500,000 which was dishonoured on presentation---Husband lodged F.I.R. against his wife and her family members under S. 489-F, P.P.C.---Investigating officer prepared cancellation report for the F.I.R. on the basis that husband had forged the signatures of the wife on the cheque, which fact had been confirmed by the bank---Husband subsequently filed a private complaint, which was dismissed by the Magistrate on the grounds that evidence of husband was not credible---Revision petition filed by husband against order of Magistrate was upheld to the extent of family members of wife, but direction was given to the effect that criminal complaint shall remain pending to the extent of wife only, and Magistrate should adopt all measures to procure her attendance to face trial---Plea of wife was that cheque book was in custody of her husband, who forged her signatures and presented a cheque for encashment against an account, which had already been closed, and that their marriage stood dissolved by decree of Family Court about 1-1/2 years before the cheque in question was issued---Validity---Account in question was opened in the name of wife but was subsequently closed with zero balance---Investigating officer as well as the bank confirmed that signatures on the cheque in question were forged---Material discrepancies existed between the version given by husband in the F.I.R. and the version given by him in the private complaint with regard to circumstances which allegedly led to the wife issuing the cheque---Cheque in question bore the date 20-10-2007, while Family Court had issued decree for dissolution of marriage on 8-5-2006 i.e. more than 1-1/2 years before the cheque in question was issued---Husband had also filed a suit in the civil court for recovery of Rs.500,000, wherein a totally different version was provided compared to the private complaint in regard to the circumstances which led to the wife issuing the cheque---Cheque was dated 20-10-2007, which was presented by husband twice on 25-10-2007 and 26-10-2007, and the F.I.R. was lodged on 27-10-2007, knowing that the wife was getting re-married on 28-10-2007---Sequence of events clearly pointed towards the intent of husband to harass, intimidate and victimize the wife---No offence was made out in the present case and allowing prosecution to continue with trial would amount to abuse of process of law---Proceedings of private complaint pending before the Magistrate were quashed in circumstances---Petition was allowed accordingly.

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

----Ss. 200 & 561-A---Private complaint---Quashing of proceedings---Scope---Proceedings of private complaint could be quashed where the continuance of such proceedings would be a futile exercise, wastage of time and gross abuse of process of the court---Such proceedings could be quashed where no offence was made out and it would amount to abuse of process of law to allow the prosecution to continue with trial.

Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122; Maqbool Rehman v. The State and others 2002 SCMR 1076; Muhammad Faiz Khan v. Ajmer Khan and another 2010 SCMR 105 and Muhammad Nawaz's case 2000 SCMR 1904 ref.

Abrar Ahmad for Petitioner.

Aish Bahadar Rana for Respondent No.3.

2013 P Cr. L J 1394

[Lahore]

Before Ali Baqar Najafi, J

JAVED IQBAL---Petitioner

Versus

The S.H.O. and others---Respondents

Writ Petition No.2222 of 2012, decided on 14th May, 2013.

Pakistan Army Act (XXXIX of 1952)---

----S. 143---Criminal Procedure Code (V of 1898), Ss. 345, 382-B & 401---Constitution of Pakistan, Arts. 2-A, 45 & 199---Constitutional petition---Court Martial---Compromise with legal heirs of deceased---Benefit of--=Scope---Remissions by the President of Pakistan--Entitlement-Accused murdered his colleague and after Field General Court Martial, he was awarded death sentence but on compromise with legal heirs of deceased, death sentence was converted into imprisonment for life---Plea raised by accused was that due benefit of compromise was not given to him and he was not released and he was entitled to remissions---Validity---Any policy decision was aimed at maintaining discipline in force in a situation, where fight between two armed personnel resulted into one's death by using Danda that too in an isolated place---Accused did not challenge provisions of S.143 of Pakistan Army Act, 1952, being ultra vires of Art. 2-A of the Constitution and Injunctions of Islam, therefore, High Court declined to give any observation in such respect---Accused was entitled to remissions including those granted under Art. 45 of the Constitution by the President of Pakistan---High Court directed to extend to accused those remissions which had been made permissible under Jail Manual as well as Criminal Procedure Code, 1898, and also under Art. 45 of the Constitution---High Court directed the authorities to also extend benefit of S.382-B, Cr. P. C. to accused---Petition was allowed accordingly.

Ex. Lt. Col. Shahid Bashir v. Federation of Pakistan and others Writ Petition No.1534 of 2011; Shah Hussain v. The State PLD 2009 SC 460; Muhammad Ramzan alias Ramzani v. The State 1996 SCMR 906; Abdul Ghafoor v. The State 2000 PCr.LJ 1841; Muhammad Nazir alias Jeera v. The State PLD 2001 Lah. 212; Muhammad Ashraf v. The State PLD 1996 Lah. 46; Tariq Mehmood v. The State 2011 SCMR 1880; Mushtaq Ahmad and others v. Secretary, Ministry of Defence through Chief of Air and Army Staff and others PLD 2007 SC 405 and Muhammad Zaman v. The State PLD 2006 Pesh. 82 ref.

Muhammad Wasif Khan for Petitioner.

Sardar Maqbool, Standing Counsel for the Federation of Pakistan.

Lt. Col. Tahir, JAG Department, GHQ.

2013 P Cr. L J 1402

[Lahore]

Before Ali Baqar Najafi, J

GHULAM ABBAS---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.4583-B of 2013, decided on 9th May, 2013.

(a) Criminal trial---

----Medical evidence---Polygraph Test--- Veracity--- Courts all over the world have not put much reliance on Polygraph Test to inculpate accused persons.

Muhammad Asif v. State 2008 MLD 1385 and United States v. Scheffer 523 U.S. 303 (1998) rel.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 377 & 201---Bail, grant of-Further inquiry---Polygraph and DNA tests---Investigating Officer conducted Polygraph Test of accused to ascertain his truthfulness and DNA test to compare specimens extracted from clothes of deceased---Validity---Veracity of Polygraph Test and effect of DNA Test was to be seen by Trial Court after recording evidence---Case of accused was one of further inquiry into his guilt as contemplated in S.497(2), Cr. P. C. ---Bail was allowed in circumstances.

Abid Saqi for Petitioner.

Muhammad Akhlaq, D.P.G. with Yaqoob, S.-I. for the State.

Ch. Qamar Javed Gujjar for the Complainant/Respondent No.2.

2013 P Cr. L J 1411

[Lahore]

Before Sagheer Ahmad Qadri, J

AZIZULLAH KHAN---Petitioner

Versus

S.H.O. POLICE STATION SADAR, MIANWALI and 4 others---Respondents

Writ Petition No.8476 of 2011, decided on 12th June, 2012.

(a) Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006)--

----S. 9---Penal Code (XLV of 1860), Ss. 324/34---Constitution of Pakistan, Art.199---Attempt to commit qatl-e-amd and common intention---Constitutional petition---Powers and functions of Public Prosecutor---Initial F.I.R. in the case was registered under S.324, P.P.C., but Investigating Officer during investigation opined that offence under Ss.337-F(v), 337-A(i), 337-L(2) & 337-H(2) was made out and deleted the offence under S.324, P.P.C.---When challan of the case was submitted before Public Prosecutor for scrutiny purposes, he observed that prima facie from the facts and circumstances of the case, offence under S.324, P.P.C. was made out, and remarked that no ground was available with the Investigating Officer for deletion of offence under S.324, P.P.C.---Petitioner/accused had challenged the legality and propriety of said remarks of Public Prosecutor---Powers and functions of the Prosecutor had been provided under S.9 of the Punjab Criminal Service (Constitution, Functions and Powers) Act, 2006; and under provisions of S.9(5)(a) of said Act, the prosecutor was authorized to scrutinize the report and to return the same within three days to the Officer Incharge of Police Station or Investigating Officer, if he would find the same to be defective, for removal of such defects as would be identified by him---Challan of the case had already been submitted in the Trial Court and charge had already been framed--Remarks of Public Prosecutor at that stage, itself were not a direction, but an observation and in the light of the earlier registration of the case under S.324, P.P.C., had no material bearing on the case; nor it would constitute any direction for addition of offence under S.324, P.P.C. as agitated by the counsel for the petitioner---Trial Court had charged accused under S.324, P.P.C. and accused had pleaded not guilty; and case was at the stage of recording of evidence---Objection raised by the counsel for accused at such stage had no force---No ground being available to interfere into the observation made by the Public Prosecutor, constitutional petition filed by accused, was dismissed, in circumstances.

Fayyaz Ahmed and another v. The State and others 2008 PCr.LJ 805 distinguished.

Tanveer Hussain Qureshi and 8 others v. District Public Prosecutor, Sialkot and 2 others 2009 PCr.LJ 1043 ref.

Abdul Hafeez Junejo v. The State 2010 YLR 470 rel.

(b) Words and phrases---

---"Defect" and "Defective", defined and explained.

Black's Law Dictionary and 20th Century Dictionary rel.

Muhammad Zafar Chaudhry for Petitioner.

Khadim Hussain Qaisir, Additional A.-G. along with Qutab Sher S.-I.

Malik Matee Ullah for Respondents Nos. 2 and 4.

2013 P Cr. L J 1420

[Lahore]

Before Sh. Najam ul Hasan and Mehmood Maqbool Bajwa, JJ

Kh. MASOOD-UL-HASSAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Nos.6541-B and 6543-B of 2013, decided on 19th June, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 498---Penal Code (XLV of 1860), Ss. 409, 420, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5---Criminal breach of trust, cheating, forgery and illegal gratification---Pre-arrest bail, grant of---Further inquiry---Civil litigation---Complainant and one accused were brothers who were Directors of a company while other accused was Bank Manager---Allegation against accused persons pertained to opening of an account and embezzling of funds of the company---Bank manager fulfilled legal requirements as there was a letter on record indicating that principal accused being Chief Executive of the company was authorized to open and operate account in the name of company and the same was made part of account opening form---Address of Chief Executive of the company was mentioned in account opening form---In year, 2006, accused was not manager of concerned branch and his involvement in the matter of change of address of company was not made out---Extent to which Bank manager was liable, could only be determined after recording of evidence at trial stage---No useful purpose would be served by sending Bank manager behind the bars---Account in question remained in operation for eight years and during such period complainant and other directors had been withdrawing their payments from same account---During such period no other account was opened and operated by accused director and his involvement in the matter remained that of further inquiry---Civil litigation was pending between parties so mala fide of complainant to falsely implicate accused director could not be ruled out---Pre-arrest bail was allowed in circumstances.

Qazi Misbah ul Hassan for Petitioner (in Criminal Miscellaneous No.6541-B of 2013).

Usman Ghazi for Petitioner (in Criminal Miscellaneous No.6543 of 2013).

Munir Ahmed Sial, Deputy Prosecutor-General for the State.

Jahanzaib Khan for the Complainant.

Asif Hussain, Sub-Inspector, FIA with record.

2013 P Cr. L J 1428

[Lahore]

Before Abdul Sand Khan and Mazhar Iqbal Sidhu, JJ

RIAZ HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.40 and Murder Reference No.10 of 2008, heard on 16th May, 2012.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Matter though was reported to the police without any loss of time, but that fact alone could not be considered to give credibility to the prosecution version, sometimes the aggrieved party managed with the Police and timings were adjusted conveniently by collaboration---Prosecution had failed to prove its motive, rather a false motive had been set up---Both prosecution witnesses did not reside near or around the place of occurrence, but were residents of other village about 4/5k.m. from the place of occurrence---Presence of said two witnesses had also been found highly doubtful by their non-physical movement at the place of occurrence to save the deceased or to quell accused at the place of occurrence---None of the said witnesses tried to apprehend the deceased---All said facts had made presence of said witnesses highly doubtful at the place of occurrence---Testimony of said witnesses was thrown out of the consideration, in circumstances---Medical evidence was corroborative and when the . ocular account had been disbelieved by the court, then considering it piddling, no comment was made upon it---Recovery of blood-stained 'chhuri' and its positive report had been considered expendable to dilate upon it being corroborative piece of evidence as the court had delved in concluding and disbelieving the ocular testimony---Prosecution having failed to prove its case against accused beyond any shadow of doubt, conviction and sentence of accused was set aside, accused was acquitted of the charge levelled against him by extending benefit of doubt; and accused was directed to be released.

Allah Bachaya and another v. The State PLD 2008 SC 349 and Nadeem alias Nanha alias Billa Sher v. The State 2010 SCMR 949 rel.

Muhammad Malik Khan Langah for Appellant.

Malik Shchzad Fareed Langrial for the Complainant.

Malik Riaz Ahmad Saghla, D.P.-G. for the State.

Date of hearing: 16th May, 2012.

2013 P Cr. L J 1440

[Lahore]

Before Sagheer Ahmad Qadri, J

AMAN ULLAH---Petitioner

Versus

The STATE and 2 others---Respondents

Criminal Revision No.1323 of 2010, decided on 6th March, 2012.

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

----S. 7---Determination of age of accused---Inquiry by Trial Court---Birth certificate given preference over ossification test---Legality---Trial Court conducted inquiry to determine age of accused at the time of alleged occurrence---Trial Court considered birth certificate and school leaving certificate of accused and also Form-B issued by National Database and Registration Authority (NADRA)---Conflict existed between date of birth given on school leaving certificate and date of birth given on birth certificate of accused---Trial Court preferred birth certificate of accused and consequently declared hint as a juvenile at the time of alleged occurrence---Complainant (petitioner) contended that due to the conflict between elate of birth, preference must be given to ossification test of accused, which showed that accused was 19/20 years at the time of occurrence---Validity---Ossification test was an opinion of the Radiologist on the basis of bone ,examination and it was just an opinion and Wright vary front 6 months to 1 year either side, therefore, keeping in view the consistent record, specially date of birth given in the birth certificate as well as in NADRA records, the accused was found less than 17 years of age at the time of alleged offence---Trial Court had rightly held that accused was a juvenile at the time of alleged occurrence---Impugned order of Trial Court was lawful and justified---Revision petition was dismissed tt circumstances.

Muhammad Anwar v. Muhammad Suffyian and another 2009 SCMR 1073 ref.

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

----S. 7---Determination of age of accused---Ossification test, evidentiary value of---Scope---Ossification test was an opinion of the Radiologist on the basis of bone examination and it was just an opinion and might vary from 6 months to 1 year either side.

Imitaz Hussain Khan Balouch for Petitioner.

Waseem Ullah Khan Niazi for Respondent No.2.

Ch. Karamat Ali, Deputy Prosecutor-General.

2013 P Cr. L J 1445

[Lahore]

Before Syed Iftikhar Hussain Shah, J

MUHAMMAD ASHRAF alias MONI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.5491-B of 2012, decided on 2nd January, 2013.

Criminal Procedure Code (V of I898)---

----Ss. 498, 87 & 88---Post-arrest bail granted by Additional Sessions Judge---Judicial Magistrate/Trial Court cancelling such bail due to absence of accused at a date during trial, and declaring hint a proclaimed offender there and then without following procedure under Ss. 87 & 88, Cr. P. C. ---Legality---Accused was admitted to bail by Additional Sessions Judge---Trial of accused was fixed for prosecution evidence, when he absented himself from Trial Court, which there and then declared him as a proclaimed offender, cancelled his bail, issued perpetual warrants of his arrest, initiated proceedings against the surety, and consigned the file to the record room---Trial Court/Judicial Magistrate was not competent to cancel bail granted by Additional Sessions Judge---Trial Court should have forfeited the bail bonds and issued bailable/non-bailable warrants of arrest of accused for procuring his attendance, and after satisfying itself that accused had absconded or concealed himself to avoid execution of warrant against him, should have published a written proclamation requiring him to appear in court and thereafter, should have declared him a proclaimed offender---Trial Court/Judicial Magistrate cancelled bail and on the same day declared accused as proclaimed offender without adopting the procedure prescribed under Ss. 87 & 88, Cr.P.C.---Order passed by Trial Court was declared to be null and void and accused was deemed to be on bail with the direction to surrender before Trial Court and submit fresh bail bonds.

Ch. Iftikhar Ahmad Warriach for Petitioner.

Ch. Muhammad Akbar, D.P.G. along with Qamar Abbas Inspector for the State.

2013 P Cr. L J 1458

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD JAMIL and others---Petitioners

Versus

The STATE and others-Respondents

Criminal Miscellaneous Nos.2276-B and 2449-B of 2013, decided on 12th March, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 345---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---Ad interim pre-arrest bail, confirmation of---Grant of bail on basis of compromise in case of non-compoundable offences---Scope---Plea of accused persons that a compromise had been effected between the parties and monetary claim of complainant had been indemnified to his entire satisfaction---Complainant did not object to allowance of bail to accused persons---Plea of State Prosecutor that offences committed by accused persons were non-compoundable, therefore, they should not be allowed bail---Validity---Complainant appeared to be fully satisfied with the terms of the compromise and did not oppose bail plea of accused persons---Although offences mentioned in the F.I.R. were non-compoundable but compromise/reconciliation between parties was a redeeming feature, which brought peace and harmony in the society---Courts always respected enthusiasm and passion of parties to compound the offence, whether the same was compoundable or not---Will of parties to compound the offence had to be respected and given assent to, so that they might bear the fruit thereof---Ad interim pre-arrest bail already granted to accused persons was confirmed in circumstances.

Abdul Khaliq Safrani for Petitioners (in Criminal Miscellaneous No.2276-B of 2013).

Ch. Tariq Mehmood for Petitioner (in Criminal Miscellaneous No.2449B of 2013).

Ch. Muhammad Jahangir, Deputy Prosecutor-General Punjab for the State.

Complainant in person.

Muhammad Arshad, A.S.-I. with record.

2013 P Cr. L J 1486

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

IFTIKHAR-UL-HASSAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.4742-B of 2012, decided on 25th April, 2012.

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

----S. 497---Penal Code (XLV of 1860), Ss. 409, 420, 468, 471, 109 & 161---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment, public servant taking gratification other than legal remuneration in respect of an official act, criminal misconduct---Bail, grant of---Contentions of the accused were that he had been falsely involved in the present case with ulterior motives; that accused was not named in the F.LR. and had been involved in the present case on the basis of an inquiry; that no specific date and time of alleged occurrence had been mentioned in the crime report; that accused had remained on physical remand for a considerable period but nothing was recovered from him; that evidence against the accused was in the form of documents, which were in the possession of the prosecution and -as such there was no possibility of tampering with the same; that accused was a government servant and there was no chance of his abscondence, and that accused was a previous non-convict and was not required by the police for further investigation---Validity---Accused was not named in the F.I.R. and no specific date and time of the alleged occurrence had been mentioned therein---Accused had remained on physical remand for a considerable period but nothing incriminating was ,recovered front him---Offence with which accused was charged did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Evidence against the accused was in the shape of documents which were in the exclusive possession of the prosecution and there was no apprehension of tampering with the same if the accused was released on bail---Accused was a government servant and there was no possibility of his abscondence if released on bail---Guilt of accused was to be determined by the Trial Court after recording of evidence--Accused was a previous non-convict and was not required by the police for further investigation---Bail petition of accused was accepted and he was admitted to bail.

Tariq Bashir v. The State PLD 1995 SC 34; Riaz Jafar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708; Saeed Ahmed v. The State 1995 SCMR 170 and Firdaus Ahmad Khan v. The State 2004 MLD 208 rel.

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

----S. 497---Bail---Cases not falling within the prohibitory clause of S.497(1), Cr. P.C.---Scope---Grant of bail was a rule and refusal an exception in cases not punishable with death, transportation of life or ten (10) years imprisonment.

Tariq Bashir v. The State PLD 1995 SC 34 and Riaz Jafar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708 rel.

Shahid Zaheer Syed for Petitioner.

Mian Muhammad Awais Mazhar, Deputy Prosecutor-General and Ghulam Mustafa, S.-I. ACE, with record for the State.

2013 P Cr. L J 1500

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

MUHAMMAD WARIS ALI---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 13037-B of 2012, decided on 10th October, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 195(c) & 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--Ad interim pre-arrest bail, confirmation of---Fake document presented in court. during proceedings---Lodging of complaint against accused---Scope---Accused had allegedly submitted a fake sale deed in court as surety bond to secure his pre-arrest bail in an F.I.R. lodged by the complainant---Accused contended that complainant had no locus standi to lodge present case against him for presenting a fake sale deed, rather it was the court which had to lodge the complaint under S.195(c), Cr.P.C.---Validity---Court had to decide whether the complainant had the locus standi to set the criminal law machinery into motion against the accused or whether same was to be done by the Court itself---Bail petition was allowed accordingly and ad interim pre-arrest bail already granted to accused was confirmed.

Muhammad Suleman and others v. Abdul Razzaque and others PLD 2005 Lah. 386; Ghulam Shabbir and 6 others v. The State and another 1990 PCr.LJ 97; Abdul Nabi and another v. Syed Mukhtar and another 2003 PCr.LJ 1242; Noor Muhammad and others v. Sardar All and The State 1990 PCr.LJ 1079; Muhammad Ijaz and another v. The State 2008 YLR 778 and Musaddaq Abbasi v. Abdul Hameed Mughal and another 2008 YLR 1526 fol.

Abdul Hakeem v. The State 1994 SCMR 1103; Muhammad Shafi v. Deputy Superintendent of Police (Malik Gul Nawaz) Narowal and 5 others PLD 1992 Lah. 178; Industrial Development Bank of Pakistan and others v. Mian Asim Fareed and others 2006 SCMR 483; Zulfiqar Ali v. Arshad Mahmood, Magistrate 1st Class, Kabirwala and 2 others 2005 YLR 1316 and Muhammad Bashir alias Bokla and 8 others v. Superintendent of Police City Division, Lahore and 9 others 2007 PCr.LJ 864 distinguished.

Shahzad Ali Dhillon for Petitioner.

Muhammad Ishaque, D.P.-G. with Mubarik, S. -I. for the State.

Rana Shahzad Khalid for the Complainant.

2013 P Cr. L J 1513

[Lahore]

Before Mazhar Iqbal Sidhu, J

MUHAMMAD AWAIS---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.1763 and Criminal Revision No.837 of 2010, heard on 23rd April, 2013.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Motive set up by the prosecution, did not appeal to reason, and even otherwise same had not been proved---Version of the prosecution that shot was fired at the deceased at one place and he fell on another place had not been substantiated on the record---Prosecution version was that the deceased had told the complainant and other prosecution witnesses that he was fired at by accused in the Hospital, but that had gone blighted by the Doctor who had stated that death of the deceased took place immediately after causing of injuries---Medical evidence did not support the distance of accused and the deceased at the time of occurrence---Injury attributed to unknown accused, had not been attributed to the accused---Said unknown accused having never been traced out, injury caused could not be attributed to the accused---No date had been mentioned by the Investigating Officer in the Inquest Report and same had not been found signed by the persons who were available there though their names had been mentioned---Such deficiency had justifiably permitted to conclude that the incident was not seen by the prosecution witnesses---Recovery of padlock and hammer, was inconsequential in the circumstances of the case---Recovery of pistol along with a missed bullet was effected after 8 days of the arrest of accused---Every prospect existed that empties were fabricated after the arrest of accused, and suitable dates were made fit in the prosecution case to procure a report of the Forensic Science Laboratory in the positive--- Report of Forensic Science Laboratory had become doubtful, in circumstances---Burden of proof would assume on the prosecution, and even on the failure of the plea taken, accused could not be held responsible for the commission of crime---Prosecution having not been able to prove its case against accused beyond shadow of reasonable doubt, impugned judgment of conviction and sentence, was set aside---Accused was acquitted of the charge, and was ordered to be released from the jail, in circumstances.

Azhar Iqbal v. The State 2013 SCMR 383 rel.

Zaheer Saleem for Appellant.

Muhammad Imran Butt for the Complainant.

Sh. Muhammad Saeed, A.P.-G. for the State.

Date of hearing: 23rd April, 2013.

2013 P Cr. L J 1544

[Lahore]

Before Ali Baqar Najafi, J

ABDUL GHAFFAR and another---Petitioners

Versus

Syed SHABBIR SHAH GILLANI---Respondent

Criminal Miscellaneous No.10-M of 2012, decided on 13th March, 2013.

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

----Ss. 200 & 561-A---Private complaint---Quashing of proceedings of a private complaint by High Court in exercise of its inherent powers---Scope---Private complaint counterblast of an F.I.R.---Said complaint filed belatedly and based only on oral evidence---Effect---Accused persons were summoned by Trial Court to face trial in a private complaint---Contentions of accused persons were that private complaint was a counterblast of an F.I.R.; that assertions made against them were only oral in nature, and that private complaint was filed with a delay of more than two years---Validity---Private complaint was a counterblast of an F.I.R., which was registered by one of the accused against two of the witnesses of the private complaint---Although no limitation was prescribed for criminal prosecution, yet longer the private complaint was delayed, lesser would become the chances of believing in its truth, particularly when the same was based entirely on oral evidence---No documentary record was brought on record against the accused persons---Petition was allowed and High Court exercising its inherent jurisdiction under S.561-A, Cr.P.C. set aside impugned order of Trial Court and acquitted the accused persons from the charge.

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

----Ss. 154, 200 & 561-A---Private complaint/F.I.R.---Quashing of proceedings of a private complaint/F.I.R. by High Court in exercise of its inherent power---Scope---High Court might take into consideration any special circumstance to arrive at a conclusion as to whether prosecution should be allowed to proceed with the case in the interest of justice, when there was no possibility of conviction of accused.

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

----Ss. 200 & 561-A---Private complaint---Quashing of proceedings of a private complaint by High Court in exercise of its inherent powers---Private complaint filed belatedly and based only on oral evidence---Effect---Although no limitation was prescribed for criminal prosecution, yet longer the private complaint was delayed, lesser would become the chances of believing in its truth, particularly when the same was based entirely on oral evidence.

A.D. Naseem for Petitioners.

Ch. Ijaz Akbar for Respondent.

2013 P Cr. L J 1560

[Lahore]

Before Sh. Najam ul Hasan and Mehmood Maqbool Bajwa, JJ

MUHAMMAD RAMZAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.315-J and Murder Reference No.559 of 2007, heard on 23rd May, 2013.

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

----S. 302(b)/34---Qatl-e-amd, common intention---Occurrence which was daylight, was reported to the Police without any delay implicating accused with specific role of causing injuries to the deceased, more than three in numbers---All three witnesses though deposed the factum of motive, but neither in the presence of complainant, nor in view of witnesses the dispute with reference to demand of money by the deceased from accused, on the day of occurrence took place---No implicit reliance could be placed upon the statements of all said three witnesses in order to prove the factum of motive---Material contradictions and conscious improvements were made by eye-witness, in order to justify his presence at the spot---No implicit reliance could be placed upon said witness---Complainant, who was real brother of the deceased, and other prosecution witness, were residents of the same locality and occurrence also took place in the same vicinity---No exception could be taken to presence of both witnesses at the spot---Complainant and eye-witness unanimously disclosed the mode and manner of occurrence---Contention was though submitted that evidence of said both witnesses suffered from inherent defect, but neither any such discrepancy was pointed out during the course of arguments at the instance of accused nor any such infirmity was found---Both said witnesses remained firm in cross-examination, stating the role of accused as well as the mode and manner of occurrence---Evidence of said witnesses, inspired confidence, which could be safely believed, relied and acted upon---Injuries attributed to accused disclosed by both the witnesses, found full corroboration from the evidence of Doctor---Said injuries found full support from locale of injures mentioned in the postmortem report---Factum of recovery of 'chhuri' at the instance of accused was also relied by the prosecution as corroborative piece of evidence, but same could not be used as confirmatory evidence because said weapon was not sent to the office of Chemical Examiner as well as Serologist in order to determine the origin of blood---Abscondence of accused was another factor, substantiating the case of prosecution to prove the guilt of accused--- Defence plea of accused that deceased was murdered by some milk-seller from whom he used to purchase milk, did not appeal to the reason---Prosecution having established its case beyond any shadow of doubt, judgment of conviction recorded by the Trial Court, did not call for any interference by High Court.

(b) Criminal trial---

----Abscondence of accused---Abscondence of accused by itself would not be sufficient to suggest his culpability, but same could be taken into consideration as a corroborative factor, when the prosecution had been able to establish his case by convincing evidence.

Shafqat Abbas and another v. The State 2007 SCMR 162 rel.

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

----S. 302(b)/34---Qatl-e-amd, common intention---Sentence, reduction in---Prosecution having failed to prove the motive against accused beyond shadow of doubt, motive remained shrouded in mystery---Even otherwise the motive alleged, did not correspond with the mode and manner of occurrence, number of injuries sustained by the deceased, which had clearly suggested that there were some other circumstances resulting in occurrence, but not disclosed---Failure of the prosecution to prove the motive was mitigating circumstance, not to endorse the capital punishment awarded to accused---Another factor, which persuaded the High Court to alter the death sentence into life imprisonment, was the locale of injuries attributed to accused---According to statement of Doctor, deceased suffered eight injuries; in the opinion of the Doctor, one injury which was attributed to the proclaimed offender, was cause of death of the deceased in ordinary course of nature---Injury No.7, which was immediate cause of death, was not attributed to accused---Sentence of death, awarded to accused by the Trial Court, was converted into life imprisonment, with extension of benefit of S.382-B, Cr.P.C.---Quantum of compensation, and other terms and conditions for payment of the same, were maintained.

Anar Gul v. The State through Advocate-General, N.-W.F.P. and another 1999 SCMR 2303; Feroze Khan v. The State 2002 SCMR 99 and Noor Muhammad v. The State and another 2010 SCMR 97 rel.

(d) Criminal trial---

----Motive, proof of---Prosecution, though, was not obliged to suggest motive in each and every case, which involved the element of assessment, but once, it was alleged, same had to be proved by the prosecution by producing convincing and corroborative evidence.

Muhammad Anwar Khokhar for Appellant.

Ch. Dilbar Hussain for the Complainant.

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

Date of hearing: 23rd May, 2013.

2013 P Cr. L J 1580

[Lahore]

Before Miss Aalia Neelum, J

BILAL AHMAD alias BILALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.4264/B of 2013, decided on 31st May, 2013.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 148, 149 & 335---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-e-amd, attempt to commit qatl-e-amd, rioting armed with deadly weapons, unlawful assembly, itlaf-i-salahiyyat-i-udw---Bail, grant of---Further inquiry---Identification parade conducted after nomination of accused in the case---No specific injury attributed---Effect---Accused along with the co-accused was alleged to have fired at the complainant party, which resulted in death of one person and caused injuries to another---Accused was not named in the F.I.R. and was implicated for the offence by way of supplementary statement of complainant, recorded after a delay of two days, wherein it was stated that prosecution witnesses saw the accused going to the place of occurrence on a motorcycle---Although complainant and prosecution witnesses identified the accused in the test identification parade, but the same lost its efficacy in the presence of supplementary statement of complainant as said identification parade was conducted after nomination of accused in the case---No specific injury was attributed to the accused and he was only attributed general role of firing---Evidentiary value of recovery of motorcycle and weapon from accused could be determined by the Trial Court after recording of evidence---Investigating officer found six of the accused, including the co-accused to whom fatal injuries were specifically attributed, as innocent---Complainant, being dissatisfied with the investigation filed a private complaint by assigning the same role to the accused as in the F.I.R.---Trial Court was yet to determine as to which of the attributions, i.e. those in the F.I.R., or private complaint, or supplementary statement of complainant or those of the investigating officer were correct or believable against the accused---Such fact alone was sufficient to bring case of accused within the scope of further inquiry---Accused granted bail in circumstances.

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

----S. 497--- Qanun-e-Shahadat (10 of 1984), Art. 22--- Bail---Identification parade conducted after nomination of accused in the case by way of supplementary statement of complainant--- Effect---Identification parade would lose its efficacy in such circumstances.

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

----S. 497(2)---Bail---Scope---Case of further inquiry---Commencement of trial---Effect---Where case of accused fell within the ambit of further inquiry, commencement of trial was no ground to refuse bail to him.

Ch. Muhammad Safdar Bhatti for Petitioner.

Muhammad Nawaz Shahid, DDPP for the State.

Ch. Sajid Ali Bul for the Complainant.

Muhammad Ashraf, S.-I. with record.

2013 P Cr. L J 1591

[Lahore]

Before Miss Aalia Neelum, J

Dr. NASAR KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.5465-B of 2013, decided on 4th June, 2013.

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

----S. 497---Penal Code (XLV of 1860), S 489-F---Dishonestly issuing a cheque---Bail, grant of---Cheque issued on basis of a business transaction---Dispute of civil nature---Effect---Accused had issued the dishonored cheque to the complainant in the backdrop of a business transaction between the parties---Both parties also had previous financial dealings---Dispute between parties was of civil nature and no cogent evidence was available to attract provisions of S.489-F, P.P.C.---Offence alleged did not fall within the prohibitory clause of S.497, Cr.P.C.---Accused was no more required for further investigation---Accused was granted bail in circumstances.

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

----S. 497(1)---Bail---Offence not falling within the prohibitory clause of S.497, Cr.P.C.---Effect---Where offence did not fall within the prohibitory clause of S.497, Cr.P.C., concession of granting bail must be considered in favour of the accused and it should be denied only in exceptional circumstances.

Riaz Jafar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708 rel.

Muhammad Ijaz Khan for Petitioner.

Nasir Mahmood Sial, DDPP for the State.

Ashfaq Qayum Cheema for the Complainant.

Muhammad Amin, A.S.-I. with record.

2013 P Cr. L J 1597

[Lahore]

Before Kh. Imtiaz Ahmad and Miss Aalia Neelum, JJ

WAJID ALI---Appellant

Versus

The STATE and others---Respondents

Criminal Jail Appeal No.24 of 2013, decided on 26th June, 2013.

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

----S. 9(b)---Criminal Procedure Code (V of 1898), Ss.243 & 412---Possessing and trafficking narcotic---Appreciation of evidence---Right of appeal of accused who pleaded guilty---Accused pleaded guilty and the Trial Court recorded confessional statement of accused---Record had clearly revealed that accused was intimated about the charge and consequences of confession---Show-cause notice was given to accused under S.243, Cr.P.C.---Accused remained consistent with confessional statement---Trial Court, after fulfilling codal formalities, recorded confessional statement of accused and certified that same was true and voluntary---Accused had made his confessional statement voluntarily, and it did not suffer from any defect of form or substance---Retraction of confession was not enough to make it involuntary, or diminished its intrinsic value---By virtue of provision of S.412, Cr.P.C., accused who pleaded guilty to the charge, had no right of appeal against his conviction, but could maintain an appeal only to the extent of the legality of the sentence passed against him by the Trial Court---Trial Court while convicting accused kept into the consideration settled law---Conviction of accused recorded by the Trial Court was not open to any legitimate exception---Conviction and sentence passed by the Trial Court was maintained and appeal was dismissed, in circumstances.

State v. Ghulam Murtaza PLD 2009 Lah. 362 and Ameer Zaib v. State PLD 2012 SC 380 rel.

Syeda B.H. Shah for Appellant.

Syed Ahmad Raza Kazmi, D.P.-G. for the State.

2013 P Cr. L J 1603

[Lahore]

Before Miss Aalia Neelum, J

MUHAMMAD ASLAM HAYAT---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE/JUSTICE OF PEACE, LAHORE and 2 others---Respondents

Writ Petition No.11438 of 2013, heard on 30th May, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B, 4(1)(l), 156 & 157---Constitution of Pakistan, Art.199---Constitutional petition---Direction to investigating officer---Petitioner got criminal case registered against respondent and his grievance was that Ex-Officio Justice of Peace, in exercise of powers under Ss.22-A and 22-B, Cr.P.C. could not direct investigating officer to collect evidence in shape of mobile phone data---Validity---Ex-Officio Justice of Peace could not interfere in investigation or advice to collect evidence to investigating officer---Provisions of Ss.156 & 157, Cr.P.C. permitted only police officers to investigate a case, while remaining within the ambit of "investigation" as defined in S.4(1)(l), Cr.P.C.---Police officer was duty bound to investigate the matter, honestly, fairly and justly, so that truth could be brought to surface---Ex-Officio Justice of Peace had travelled beyond his jurisdiction under S.22-A, Cr.P.C., when he gave direction to investigating officer to collect mobile data---High Court set aside the order passed by Ex-Officio Justice of Peace, as the same was without jurisdiction and without lawful authority---Petition was allowed in circumstances.

Khizar Hayat and others v. Inspector-General of Police (Punjab) Lahore PLD 2005 Lah. 470 ref.

Syed Farhad Ali Shah for Petitioner.

Rafique Javed Butt for Respondent No.3.

Malik Abdul Aziz Awan, Assistant Advocate-General with Manzoor Beg, S.I.

Date of hearing: 30th May, 2013.

2013 P Cr. L J 1623

[Lahore]

Before Miss Aalia Neelum, J

KHALID HUSSAIN---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No.828 of 2012, heard on 31st May, 2013.

Criminal Procedure Code (V of 1898)---

----S. 540---Power to summon material witness---Principle---Trial Court allowed complainant to produce three witnesses in support of prosecution case---Accused contended that witnesses allowed by Trial Court neither appeared before Investigating Officer during investigation, nor complainant mentioned their names in his examination-in-chief---Validity---Complainant failed to substantiate that witnesses in question appeared before Investigating Officer and they had recorded their statements or they had appeared at any stage of investigation and they were witnesses of specific fact or act and recording of their statements was essential for just decision of the case---Additional witnesses could not be summoned just to fulfill desire of complainant---Proceedings of trial had already consumed more than three years---Discretion under first part of S.540, Cr.P.C. had to be exercised judicially and on sound material keeping in view all aspects of the case---Such discretion was not to be exercised to favour one or the other party and the power could not be exercised as matter of rule---If such power was used in routine manner it would tantamount to opening floodgates where parties might start calling any witness to fill in lacunas in their evidence---No justification existed under law or there was no compulsion on the part of Trial Court to summon additional witnesses during trial---High Court set aside the order passed by Trial Court---Revision was allowed in circumstances.

Ch. Zulfiqar Ahmad Rawn for Petitioner.

Ahmad Raza Raja for Respondent No.2.

Nasir Mahmood Sial, Deputy District Public Prosecutor with Khawar Abbas, ASI with record.

Date of hearing: 31st May, 2013.

2013 P Cr. L J 1647

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

HAFIZ SAKHAWAT---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.9051-B of 2012, decided on 24th July, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 365-B & 376---Kidnapping, abducting or inducing woman to compel for marriage etc., rape---Bail, grant of---Further inquiry---Accused was alleged to have abducted the victim before subjecting her to rape---Victim being a major having the age of 18 years---Hymen of victim not intact since long---Non-availability of any mark of violence on the body of the victim---Victim refusing to get DNA test---Complainant making three different versions regarding the occurrence at different forums making the case highly doubtful---Police investigation showing the accused to have only facilitated the paramour of the victim in taking her on a bus---Case of accused falling within the ambit of further inquiry in such circumstances---Accused was admitted to bail accordingly.

Aman Ullah v. The State PLD 2009 SC 542; Asad Shah v. The State 2010 YLR 450 and Ghulam Fareed v. The State 2010 YLR 1188 distinguished.

Criminal Miscellaneous No.1670-B of 2012 ref.

Rashad Imran Chohan for Petitioner.

Ch. Jahangir, D.P.-G. with Nisar Ahmad, A.S.-I. for the State.

Ch. M. Ashraf Jalal for the Complainant.

2013 P Cr. L J 1650

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

JAFAR and 6 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.419 and Murder Reference No.121 of 2008, decided on 5th March, 2013.

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

----Ss. 302(b) & 109--- Qatl-e-amd, abetment--- Appreciation of evidence---Case was of two versions, one putforth by prosecution in the form of ocular account furnished by prosecution witnesses, while other had been brought on record through the statements of accused persons recorded under S. 342, Cr.P.C.---Delay of 4 days in reporting the matter to the Police, having not been explained plausibly, possibility of concoction and deliberation, were very much there---Eye-witnesses were not truthful witnesses, because they had suppressed serious injuries, sustained by accused persons in the occurrence---Evidence of said witnesses was not worthy of reliance---No report of Chemical Examiner or Serologist was available to show that 'Sotas' allegedly used in the occurrence were stained with human blood---Evidence qua alleged recovery of 'Sotas' was of no avail to the prosecution, in circumstances---Prosecution had failed to prove any motive against accused persons---Prosecution, in circumstances, could not prove its case against accused persons beyond shadow of doubt---Impugned judgment of the Trial Court, was set aside and convictions and sentences awarded to accused were set aside; they were acquitted from the charge and were released, in circumstances.

Akhtar Ali and others v. The State 2008 SCMR 6 and Nazeer Ahmad v. Gehne Khan and others 2011 SCMR 1473 rel.

(b) Criminal trial---

----Appreciation of evidence---Prosecution was required to prove its case against accused persons beyond any shadow of doubt---Defence version, was to be taken into consideration after evaluating the prosecution evidence to find out, whether same inspired confidence or not.

Ashiq Hussain v. The State PLD 1994 SC 879 and Amin Ali and another v. The State 2011 SCMR 323 rel.

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

----Ss. 302(b), 109 & 100---Qatl-e-amd, abetment---Plea of right of private defence---Accused persons in their statements recorded under Ss.340(2) & 342, Cr.P.C. had taken plea of right of self-defence---Putting the prosecution case and defence version in juxtaposition, defence version that it was the complainant party who launched attack on accused party, appeared to be probable which got support from the evidence of prosecution's own witness, who had noted three injuries, including two incised wounds on the head and right cheek of accused and two incised wounds and four injuries on the head to other accused---Accused persons, in circumstances, had the right of private defence of their bodies, which also extended to cause death of the assailants.

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

----S. 100---Right of private defence---Extent---Right of private defence of body would extend to the voluntary causing the death of the assailant, if assailant would launch an assault which could reasonably cause the apprehension that grievous hurt would be the consequence of such assault.

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

----Ss. 340(2) & 342---Inculpatory and exculpatory statement of accused---If the prosecution evidence was disbelieved by the court, then the statement of an accused was to be accepted or rejected as a whole---Not possible to accept the inculpatory part of the statement of accused, and to reject the exculpatory part of same statement.

Muhammad Asghar v. The State PLD 2008 SC 513 rel.

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

----Ss. 340(2) & 342---Inculpatory and exculpatory statement of accused---Accused could not be awarded punishment on the basis of their statements recorded under Ss.340(2) & 342, Cr.P.C., by accepting the inculpatory part of said statements, and by rejecting exculpatory part of the same statement.

Sultan Khan v. Sher Khan and others PLD 1991 SC 520 and Ghulam Qadir v. Esab Khan 1991 SCMR 61 rel.

Syed Ijaz Qutab for Appellants.

Arshad Mehmood, D.P.-G. for the State.

Sardar Akbar Ali Khan for the Complainant.

Date of hearing: 5th March, 2013.

2013 P Cr. L J 1674

[Lahore]

Before Sh. Najam ul Hasan and Mehmood Maqbool Bajwa, JJ

MUHAMMAD MANSHA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.1897 of 2006 and Murder Reference No.101 of 2007, heard on 13th November, 2012.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Qatl-e-amd, common intention---Appreciation of evidence---Sentence, reduction in---Occurrence took place at 1-30 p.m. in the bright daylight---Both parties were closely related---Deceased was brother of wife of one of the co-accused---Two co-accused who were found innocent during investigation, were tried by the Trial Court and were acquitted---Complainant and two prosecution witnesses supported the version of the F.I.R.; they all admitted that the occurrence took place at the spur of the moment---Medical evidence corroborated the ocular account, the weapon, recovered from accused, kind of injury and seat of injury, and even time of occurrence was established---Nothing was on record to indicate that injury on the right thumb of prosecution witness was self-suffered---Said witness being wife of one of co-accused was the inmate of the same house, her presence at the place of occurrence was natural---Accused got recovered a chhuri which was later on found to be stained with human blood---Even the recovery of crime weapon corroborated the ocular account---Motive part of the occurrence was duly mentioned in F.I.R.; and even the defence had admitted that the deceased came to their house at the instigation of wife of accused and the occurrence started at the spur of the moment---Case was not that of premeditated murder and even accused had taken the plea of self-defence and had tried to bring his case under general exception---Deputy Superintendent of Police as court witness had admitted that it was the accused who was found involved in giving the injuries to the deceased---Involvement of accused for killing the deceased, was fully established, but stance of accused was that he acted in self-defence---All the witnesses had admitted that occurrence started at the spur of the moment---Both the parties were sitting together and proceedings of reconciliation were in progress, when suddenly the matter flared up and accused gave injuries to the deceased with the chhuri and he died---In view of said peculiar circumstances of the case and considering that occurrence was result of sudden flare up, accused deserved some leniency in his sentence---Conviction of accused, under S.302(b), P.P.C. was upheld, whereas his sentence was converted to life imprisonment from death sentence---Since the occurrence was result of sudden flare up, compensation of Rs.25,000 would meet the ends of justice---Murder Reference was answered in the negative, in circumstances.

Muhammad Ashraf v. The State 2007 YLR 493 ref.

Barrister Danyal Ijaz Chadhar for Appellant.

Shahid Bashir Chaudhry, D.D.-G. for the State.

Taki Ahmed Khan for the Complainant.

Date of hearing: 13th November, 2012.

2013 P Cr. L J 1716

[Lahore]

Before Ali Baqar Najafi, J

AZHAR and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.133 of 2010, heard on 23rd May, 2013.

Penal Code (XLV of 1860)---

----S. 376/34---Criminal Procedure Code (V of 1898), S.265-D---Qanun-e-Shahadat (10 of 1984), Art.3---Rape and common intention---Appreciation of evidence---Allegation against the accused persons was that they committed rape with the niece of the complainant---Trial Court convicted the accused and sentenced them to imprisonment for life---Joint charge was framed against the accused but no specific allegation was made against one of the accused for committing Zina-bil-Jabr and requirements of S.265-D, Cr.P.C., to his extent were missing---Victim while appearing in the witness box was put specific question by the Trial Court on which the court observed that the witness did not understand the questions but in the interest of justice her statement was recorded in which she stated that one of accused committed Zina-bil-Jabr while other remained standing equipped with pistol and complainant reached outside the house (place of occurrence) but remained outside and did not come in the house and did not see the occurrence, however, she could not state the incident by narrating the necessary details---Statement of the victim was required to be recorded in accordance with Art.3 of Qanun-e-Shahadat, 1984, and interest of justice could not be given preference to express provisions of law based on fundamental law of administration of justice---Victim could not understand the question of vital importance being of tender age and otherwise victim of rape could not forget the agony of the series of actual acts for her entire life---Victim lost the most important occasion to narrate the actual act necessary to convict the accused and even could not point out the accused present in the court to be those who committed the offence---Medical Officer stated that no marks of violence were detected on any part of the body of the victim except on the back of both hands---Genitalia vulva was found healthy, no swelling or scratch mark or injuries were noted over vulva region and vagina admitted two fingers with or without pain on genital examination and no discomfort was noted---Clothes of victim were not stained with blood, mud or any type of fluid---Medical Officer admitted that the victim could be habitual---One of the accused could not be convicted for Zina-bil-Jabr as no charge of the said offence was framed against him with specific allegation---Statement of the doctor was not corroborated by the statement of the victim who did not qualify the requirement of Art. 3 of Qanun-e-Shahadat, 1984, for being unable to understand her statement---DNA test of the vaginal swabs was not conducted which could have been good corroborative piece of evidence---Prosecution had failed to bring home the guilt against the accused by presenting evidence beyond shadow of doubt---Appeal was accepted and accused were acquitted from the charges.

Malik Nasrullah Awan for Appellants with Appellant in person.

Muhammad Yousuf, DDPP for the State.

Victim in person.

Date of hearing: 23rd May, 2013.

2013 P Cr. L J 1723

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

NASEEM ULLAH---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.684-B of 2013, decided on 1st April, 2013.

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, unlawful assembly---Bail, grant of---Further inquiry---Case of cross-versions---Observation made by High Court while refusing bail in a cross-version F.I.R. benefiting the accused---Scope---According to the F.I.R. lodged by accused, one "M" had made the fatal fire shot, whereas cross-version F.I.R. alleged that accused made the same---Bail application of person "M" was dismissed by High Court with the observation that causing of injury to deceased by the accused was unimaginable as they were both from the same party, and that one fatal fire shot could not be attributed to two persons---Plea of accused that benefit of said observation should go to him---Validity---Deceased had received only one fire shot---Question as to who made the fatal fire shot was a matter of trial and fell within the domain of Trial Court--- Accused was not recommended for prosecution by the police---Crime weapon had not been recovered from the accused---Case against accused fell within the ambit of S.497(2), Cr.P.C.---Accused was admitted to bail accordingly.

Nasir ud Din Khan Nayyar for Petitioner.

Muhammad Ishaque, D.P.-G. with Abdul Rehman, ASI for the State.

Shahid Shaukat for the Complainant.

2013 P Cr. L J 1734

[Lahore]

Before Sardar Tariq Masood and Shahid Hameed Dar, JJ

KHADIM HUSSAIN---Petitioner

Versus

GOVERNMENT OF PUNJAB through Home Secretary---Respondent

Writ Petition No.1504 of 2012, decided on 13th December, 2012.

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

----Fourth Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Placing of name in the list under Fourth Schedule---Name of petitioner was placed in the list under Fourth Schedule which lasted for six years i.e. twice the period as envisaged by law---Name of the petitioner was deleted but re-entered on the same day which was an attempt to frustrate the essence of the order---Validity---Name of a person could not be placed repeatedly in the list under Fourth Schedule, if some fresh evidence or material so envisaged was not available.

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

----Fourth Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Placing of name in the list under Fourth Schedule---When the act of placing the name in the list was mala fide, the order was illegal.

Rana Baleegh-ur-Rehman, Advocate vice and Arif Mehmood Rana for Petitioner.

Khurram Khan, Deputy Prosecutor-General Punjab vice, Waqas Qadeer Dar, A.A.-G. with Irfan Ali Chheena, Section Officer, Home Department and Muhammad Imran, S.-I. for Respondent.

2013 P Cr. L J 1754

[Lahore]

Before Altaf Ibrahim Qureshi, J

GHULAM MUSTAFA---Appellant

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.1648-B of 2012, decided on 16th August, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)--- Penal Code (XLV of 1860), Ss. 324, 148, 149 & 337-F(iii)---Attempt to commit qatl-e-amd, rioting armed with deadly weapons, unlawful assembly, ghayr-jaifah-mutalahimah---Bail , grant of---Further inquiry---Allegation against accused was that he along with the co-accused attempted to commit qatl-e-amd of complainant as a result of which the latter sustained injuries---Case registered after a delay of two days---Injury on the right thigh of complainant (non-vital part of body)---Said injury was not declared as dangerous to life and attracted provisions of S.337-F(iii), P.P.C., which did not fall within the prohibitory clause of S.497, Cr.P.C.---No repetition of fire shot---Question as to whether accused could be held liable for S.324, P.P.C. or question as to his vicarious liability were to be gone into at trial---Case was open to further inquiry---Accused was allowed bail accordingly.

Muhammad Tariq Rajwana for Petitioner.

Hassan Mehmood Khan Tareen, D.P.G. with Ahmad Masood, ASI for the State.

Rana Javed Akhtar for the Complainant.

2013 P Cr. L J 1756

[Lahore]

Before Mehmood Maqbool Bajwa, J

ZAHEER ABBAS---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 13587-B of 2011, decided on 21st October, 2011.

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

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, grant of---Allegation against accused was that he issued a cheque to the complainant which bounced on presentation due to insufficient funds---Contentions of accused were that there was a delay of forty two (42) days in lodging the F.I.R.; that contents of the F.I.R. did not mention the purpose for which the cheque in question was issued to the complainant, and that offence alleged against accused did not fall within the prohibitory clause of S.497, Cr.P.C.---Validity---Offence alleged against accused did not fall within the prohibitory clause of S.497, Cr.P.C., and in cases not falling within the prohibitory clause, the concession for grant of bail must be favourably considered and should only be denied in exceptional cases---No exceptional circumstances existed to withhold the concession of bail to the accused---Contention of prosecution that direction had been issued by the Trial Court for expeditious disposal of the case by itself was not sufficient to decline bail application of the accused, when he was otherwise entitled to have the premium of post-arrest bail---Accused had no previous criminal record and his further detention in jail would not have served any useful purpose---Bail application of accused was accepted and he was admitted to bail.

Riaz Jafar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708 ref.

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

Riaz Jafar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708 fol.

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

----S. 497---Bail---Principles---Cases not falling within prohibitory clause of S.497, Cr.P.C.---Scope---In cases not falling within the prohibitory clause, the concession for grant of bail must be favourably considered and should only be denied in exceptional cases.

Riaz Jafar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708 ref.

Ch. Zameer Bilal for Petitioner.

Mian Muhammad Awais Mazhar, Deputy Prosecutor-General for the State along with Muhammad Afzal, ASI with record.

Complainant in person.

2013 P Cr. L J 1763

[Lahore]

Before Muhammad Anwaarul Haq and Abdus Sattar Asghar, JJ

ALI AHMAD and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos.836, 1053 of 2007 and Criminal Revision No.737 of 2007, decided on 26th February, 2013.

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

----Art. 121---Burden of proving that case of accused came within exceptions---Where the occurrence was admitted, and accused pleaded his case with the exceptions, the burden of proof automatically would shift on him to prove the plea raised by him.

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

----Ss. 302(b)(c) & 364---Qatl-e-amd, kidnapping---Appreciation of evidence--- Wilful double murder--- Plea of grave and sudden provocation by accused---Accused, neither appeared in the court nor produced any defence witness---Contradiction in inquest report and post-mortem report, had belied defence versions---Report of Chemical Examiner, transpired that vaginal swabs of deceased were not stained with semen, but her underwear reportedly was found stained with semen---Lady Doctor, on the basis of report of Chemical Examiner, had opined that deceased was subjected to sexual intercourse---Validity---In absence of any substantial piece of evidence, mere report of Chemical Examiner, could not be made basis to formulate said opinion---Said opinion of Lady Doctor was of no avail to the defence version---Accused had failed to prove his plea of grave and sudden provocation---Case was of wilful double murder on the pretext of honour, which did not fall within the ambit of S.302(c), P.P.C. and judgment of Trial Court convicting accused under that section, was exceptionable---Impugned judgment was set aside and accused was convicted under S.302(b), P.P.C. for committing wilful murder---Case was not that of capital punishment in circumstances---Accused was sentenced to imprisonment for life on two courts to run concurrently---Accused would be entitled to the benefit under S.382-B, Cr.P.C.

Feroze v. The State 2008 SCMR 696; Muhammad Ameer v. The State PLD 2006 SC 283 and Sabir Ali v. The State 2011 SCMR 629 rel.

Munir Ahmad Bhatti for Appellants.

Ch. Muhammad Mustafa, Deputy Prosecutor-General for Respondents.

Aftab Farrukh and Raja Tariq Nadeem for the Complainant.

Date of hearing: 26th February, 2013.

2013 P Cr. L J 1782

[Lahore]

Before Shujaat Ali Khan, J

SHAH NAWAZ alias CHULLU---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.4720/B of 2012, decided on 20th November, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 376 & 511---Rape, attempting to commit offences punishable with imprisonment for life or for a shorter term---Bail, grant of---Further inquiry---Doubtful occurrence---Penetration not alleged---Effect---Accused and co-accused allegedly entered house of complainant while armed with weapons and tried to commit zina-bil-jabr with her---Reading of the F.I.R. showed that rape was not committed with the complainant, rather accused allegedly tried to commit zina with her, therefore, provisions of S.376, P.P.C. were not attracted to the present case---Co-accused had been granted bail on the basis that complainant submitted an affidavit in court to the effect that co-accused was innocent---Complainant also recorded her statement before court below to the effect that co-accused was not present at the time of occurrence---Factually if co-accused was not present at the time of occurrence, then entire story narrated by complainant seemed to be somewhat doubtful---According to the F.I.R., accused had been seducing the complainant for zina for a long period of time, but inaction on part of complainant to bring the same to the notice of police or anybody else spoke volumes on her part---Although accused was alleged to have been involved in other cases but complainant could not establish that he was ever convicted in any case registered against him---Accused had made out a case of further inquiry into his guilt---Accused was allowed bail, in circumstances.

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

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

----S. 376--- Rape--- Proof--- Penetration was essential to establish that rape had been committed with a woman in terms of S.376, P.P.C.

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

----S. 497(2)--- Bail---Case of further inquiry---Abscondence of accused---Effect---Accused could not be refused bail on the ground that he remained fugitive from law, when he otherwise succeeded in establishing that his case fell under S.497(2), Cr.P.C.

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

----S. 497---Bail---Registration of F.I.Rs. against accused---Effect---Accused could not be refused bail, merely on the ground that certain other criminal cases had been registered against him.

Muhammad Ramzan Khalid Joiya for Petitioner.

Hassan Mahmood Tareen, D.P.G. with Masood, SI along with record.

Zafar Iqbal Bhatti for the Complainant.

2013 P Cr. L J 1791

[Lahore]

Before Mazhar Iqbal Sidhu, J

MUHAMMAD TARIQ---Petitioner/Appellant

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.2 of 2012 in Criminal Appeal No.1216 of 2011, decided on 29th November, 2012.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S. 302(b)---Qatl-e-amd---Suspension of sentence---Bail, grant of---Accused was convicted under S.302(b), P.P.C. and sentenced to life imprisonment---Trial Court had not accepted recovery allegedly made on pointation of the accused---Although specific roles were attributed to the accused and co-accused persons mentioned in the F.I.R. but all the co-accused persons were acquitted---No specific injury was attributed to the accused---Prima facie material available on record justified suspension of sentence---Quantum of sentence imposed on accused was suspended accordingly and he was released on bail.

Mian Tayyab Wattoo for Petitioner/Appellant.

Arshad Ali Chohan for the Complainant.

M. Akhlaq, D.P.G. for the State.

2013 P Cr. L J 1804

[Lahore]

Before Shahid Hameed Dar and Muhammad Yawar Ali, JJ

AHMED RAZA---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.2715/M of 2012 in Criminal Appeal No.1670 of 2004 and Murder Reference No.137 of 2005, decided on 13th March, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 382-B & 561-A---Penal Code (XLV of 1860), Ss. 302(b) & 316---Qatl-e-amd, qatl Shibh-e-amd---Grant of benefit of S.382-B, Cr.P.C., application for---Capital punishment awarded to accused during trial was altered to rigorous imprisonment for fourteen years, but no order with regard to benefit of S.382-B, Cr.P.C. was made; it was mandatory that pre-sentence period of imprisonment, must be taken into consideration by the Trial Court, before awarding sentence, other than capital punishment to accused as provided under S.382-B, Cr.P.C.---Appellate Court had essentially been empowered to extend benefit of pre-judgment incarceration to accused, if was not done by the Trial Court, owing to some error or omission, or due to some compelling reason---Said relief was not to be extended to an accused by way of grace, but it ought to be granted as a matter of right---Refusal to take into account the pre-judgment imprisonment, could be a patent illegality in the eyes of law---Benefit of S.382-B, Cr.P.C. being available to accused, same was to be extended to him in express term---So far as, reckoning at the period of incarceration of accused, was concerned, it would be the domain of Jail-Superintendent to make necessary calculation, by keeping in view the relevant record of the jail, where accused stood lodged as an under trial prisoner and/or a convict.

Shah Hussain v. The State PLD 2009 SC 460 rel.

Syed Tahir Abbas Rizvi for Petitioner.

Khurram Khan, Deputy Prosecutor-General Punjab for the State.

2013 P Cr. L J 1813

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

SALEEM MASIH and another---Appellants

Versus

The STATE---Respondents

Criminal Appeal No.272 of 2008 and Murder Reference No.48 of 2008, heard on 7th February, 2013.

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

----S. 302(b)/34---Qatl-e-amd, common intention---Appreciation of evidence---Benefit of doubt---Direct evidence being absent in the case, prosecution case hinged on circumstantial evidence---Relations between prosecution witness, who was paternal uncle of the deceased, and accused, were not cordial---Prosecution witness being chance witness, it was not safe to rely upon his evidence---Statement of other prosecution witness was also on the same lines---Conduct of other two prosecution witnesses, was unnatural and material contradictions and improvements were noticed in their statements---Evidence of last seen and wajtakkar furnished by said two prosecution witnesses was not worth reliance---Alleged confession was jointly made by accused persons---Role of accused persons during the occurrence, the manner in which occurrence took place, the kind of weapon used by accused persons, or the reason for committing the murder of the deceased, was not mentioned in said extra-judicial confession---Evidence of extra judicial confession was a weak type of evidence and extra-judicial confession furnished by prosecution witnesses, was not trustworthy---Motive as alleged by prosecution had not been proved in the case---Blood-stained 'churri' was deposited in the office of Chemical Examiner after lapse of more than one month from the occurrence; it was, in circumstances, unlikely that the blood on the churri would not disintegrate during said period---Alleged recovery of churri from accused was not believable, in circumstances---Accused was arrested after 15 days from the occurrence; it did not appeal to the mind of a prudent person that accused would keep the blood-stained weapon intact for such a long period, because he had ample opportunity during that period to wash away the blood-stains from that weapon---No specific identification mark was found on blood-stained shirt of accused to hold that shirt was that of accused---Positive reports of Chemical Examiner and that of Serologist about presence of human blood on shirt, therefore, were not worthy of reliance---Occurrence was unseen---Prosecution, in circumstances, had failed to prove its case against accused beyond shadow of doubt---Conviction and sentence awarded to accused, were set aside, and they were acquitted extending them benefit of doubt and they were released from the custody, in circumstances.

Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231; Tahir Javed v. The State 2009 SCMR 166; Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 and Basharat and another v. The State 1995 SCMR 1735 rel.

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

----S. 302(b)/34---Qatl-e-amd, common intention---Appreciation of evidence---Absence of direct evidence where prosecution case hinged on circumstantial evidence---Every circumstance should be linked with each other and it should form such a continuous chain that its one end touched the dead body, and other neck of accused---If chain link was missing, then its benefit must go to accused.

Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047; Sarfraz Khan v. The State 1996 SCMR 188; Asadullah and another v. The State 1999 SCMR 1034 and Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 rel.

(c) Criminal trial---

----Medical evidence---Nature---Medical evidence, was a type of supporting evidence, which could confirm the ocular account with regard to receipt of injury, nature of injury, kind of weapon used in the occurrence, but it would not identify the assailant.

Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53; Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 and Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 rel.

Naseeb Anjum and Mrs. Bushra Qamar for Appellants.

Ch. Arshad Mahmood, Deputy Prosecutor-General for the State.

Waseem Akhtar Choudhary for the Complainant.

Date of hearing: 7th February, 2013.

2013 P Cr. L J 1835

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

MUHAMMAD RAFIQUE and another---Petitioners

Versus

SENIOR SPECIAL JUDGE, ANTI-CORRUPTION, LAHORE and others---Respondents

Criminal Miscellaneous No.347-M of 2011, decided on 3rd April, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 156 & 173---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---Re-investigation of a case---Scope---Investigating officer exonerating the accused and preparing discharge report---Trial Court disagreeing with the discharge report and ordering re-investigation of case and submission of fresh report under S.173, Cr.P.C. against accused---Legality---Contention of accused persons was that although Trial Court could agree/disagree with report under S.173, Cr.P.C. particularly when discharge report was prepared, however, it could not order for re-investigation as it was only the prerogative of the investigating agency/officer---Validity---Once report under S.173, Cr.P.C. was prepared with regard to discharge of accused, (Trial) Court had the authority to examine the same in light of material collected by the police and the facts floating from the record, and if the court was satisfied that the findings of the investigating officer were not based upon sound reasoning, it could disagree with the same, thereby directing for initiation of trial, however there was no provision in Cr.P.C. which might empower the (Trial) Court to direct for re-investigation at the stage of considering report under S.173, Cr.P.C.---Re-investigation of the case was the exclusive prerogative of the investigating officer, and if new facts came on record, he could seek permission of the court for re-investigation---Impugned order of Trial Court was set aside with the direction to take into consideration the facts and circumstances floating on the record coupled with the material collected by the investigating officer during course of investigation and give definite findings while agreeing/disagreeing with the discharge report---Petition was allowed accordingly.

A.D. Naseem for Petitioners.

Mian Muhammad Awais Mazhar, Deputy Prosecutor-General for Respondents.

2013 P Cr. L J 1847

[Lahore]

Before Sh. Najam ul Hasan and Mehmood Maqbool Bajwa, JJ

FARMAN ALI alias BHOLI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.944 of 2006, Murder Reference No.807 of 2006 and Criminal Revision No.632 of 2006, heard on 5th December, 2012.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S.154---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Statement of complainant was initially recorded on a blank paper and thereafter on the basis of same, F.I.R. was registered---Complainant had admitted before the court that after reaching the Police Station he got dictated his statement on blank paper and thereafter on the basis of same the F.I.R. was registered---When the complainant was present in the Police Station why his statement was not recorded under S.154, Cr.P.C. on the register of F.I.Rs. and why the same was recorded on separate paper and later on incorporated on the register of F.I.Rs. was not understandable---Once the complainant had reached the Police Station there was no occasion for him to get his statement reduced into writing on a separate blank paper and then to incorporate the same into F.I.R. register, which was not required of law---Such circumstances made the whole story of F.I.R. highly doubtful---Accused was entitled to benefit of doubt---Sentence of death awarded by the Trial Court was set aside---Accused was acquitted from the charge of murder.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), Ss.154, 161 & 164---Qatl-e-amd---Appreciation of evidence---Conflict in medical and ocular evidence---F.I.R. showed that the deceased received four shots whereas postmortem report indicated existence of two shots and the remaining two wounds clearly described in the F.I.R. were found to be exit wounds---Such a circumstance led to infer that after seeing injuries on the specific part of dead body F.I.R. was concocted and specific injuries were attributed to both the accused---Prosecution witnesses were not worth reliance and could not be accepted without having corroboration from independent source---Prosecution failed to prove the case against accused beyond reasonable doubt---Sentence of death awarded by the Trial Court was set aside---Accused was acquitted from the charge of murder.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), Ss.154, 161 & 164---Qatl-e-amd---Appreciation of evidence---Conflict in statement recorded before Police and Trial Court---Changed version and improvement in statements---F.I.R. and statement of witness under S.161, Cr.P.C. revealed that besides other injuries two fire-arm injuries were specifically attributed to unknown co-accused who remained untraced during investigation and while appearing in court assigning said injuries to the other accused who faced the trial and changed the statement to bring the same in line with the medical evidence, made the statement of such witnesses highly unreliable---Such statement of witness needed corroboration from independent source to be relied upon---When the witnesses while appearing in court changed their version to bring the case in line with the medical evidence which was not in their knowledge at the time of earlier statement to the Police, such circumstances led to the inference that they were not worth reliance and their statement needed corroboration from independent source for relying the same---Such witness could not and should not be accepted without having corroboration from other unimpeachable source---Sentence of death awarded by the Trial Court was set aside and accused was acquitted from the charge of murder.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), Ss.154 & 161---Qatl-e-amd---Appreciation of evidence---Prosecution case was that the accused and son of the deceased had a quarrel---Son of deceased was present at the time of occurrence and appeared as eye-witness of the occurrence and accused killed his father but son of the deceased did not receive any injury in the occurrence--- Motive was directed against the son of deceased and had nothing to do with the deceased---Motive for an occurrence provided corroboration to the ocular account only if the same was of such a nature which coordinate or corresponds actus reus---Prosecution failed to prove the case against accused beyond reasonable doubt---Sentence of death awarded by the Trial Court was set aside, accused was acquitted from the charge of murder.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Motive brought on record by the prosecution suggested that prime target of the accused was son of the deceased who was present at the time of occurrence but no damage was caused to him rather unconcerned person was done to death---Such circumstances negated claim/motive advanced by the prosecution that the occurrence was result of quarrel of the accused with his son and as such same could not be considered as corroborative evidence for the prosecution---Killing the deceased for such a trivial motive especially when the prime target was also present at the place of occurrence did not appeal to mind and could not be accepted in the given circumstances---Motive alleged in the F.I.R. was not of that gravity which could have led the accused to kill father of son with whom he had earlier quarrelled---Prosecution failed to prove the case against accused beyond reasonable doubt---Sentence of death awarded by the Trial Court was set aside, accused was acquitted from the charge of murder.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S.103---Qatl-e-amd---Appreciation of evidence---Investigating Officer took into possession one crime empty of .30 bore from the place of occurrence during spot inspection on the very same day of occurrence, kept the empty in police custody and did not send to Firearm Expert---Both empty and pistol sent together to the Firearm Expert after delay of ten days from recovery---Report was positive---Recoveries and the positive report of Firearm Expert lost its value because possibility of preparing any empty from the pistol already recovered and sending both these articles together to the Firearm Expert to obtain such positive report could not be ruled out---Sentence of death awarded by the Trial Court was set aside, accused was acquitted from the charge of murder.

Ali Sher and others v. The State 2008 SCMR 707 ref.

Mrs. Tayyab Ramzan Chaudhry for Appellant.

Mirza Abid Majeed, D.P.-G. for the State.

Rai Shahadat Ali Khan Kharal and Muhammad Saeed Zafar for the Complainant.

Date of hearing: 5th December, 2012.

2013 P Cr. L J 1866

[Lahore]

Before Mazhar Iqbal Sidhu, J

(Engr.) Dr. MUHAMMAD NASEEM and 2 others---Petitioners

Versus

SOHAIL ANWAR and another---Respondents

Criminal Miscellaneous No.2/Q of 2012, decided on 19th February, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 200, 249-A & 561-A---Penal Code (XLV of 1860), Ss. 452, 506, 500, 379 & 427---Complaint case---Quashing of proceedings---Allegations against the accused-petitioners were that they entered the shop, caused damage to the articles present therein abused the mother of the complainant and had stolen away some articles from the shop---Contentions of the accused-petitioners were that mother of complainant took shop on rent who became defaulter and ejectment petition was filed, Rent Controller passed ejectment order and execution petition was filed to obtain the possession of shop, warrants of possession were issued and possession of said shop was delivered over to them through bailiff of the court as well as local police---Accused-petitioners moved an application under S.249-A, Cr.P.C. which was dismissed by the Trial Court---Validity---No detail of any articles which were damaged in the incident had been mentioned in the private complaint and even in the cursory statements of the witnesses---Complaint had been filed with maliciousness and aforethought and in presence of the bailiff of the court and police force, it could not be expected by a private person to cause damage to the articles and commit theft of the same---Private complaint had been filed on false facts and to continue the same would amount to abuse of process of law and wastage of judicial time---Circumstances of the case did not persuade to its culmination to conviction---Petition was allowed and order passed by the Trial Court on the application of the accused-petitioners filed under S.249-A Cr.P.C. was set aside and the proceedings in the complaint case were ordered to be terminated and quashed.

Muhammad Kashif and others v. Major (Retd.) Atta Ullah Butt and others 2003 MLD 1017; Iftikhar Ahmad and another v. S.H.O., Police Station Kohsar, Islamabad and 2 others PLD 2001 Lah. 399; Allah Rakhio and others v. The State 2001 PCr.LJ 551; Gul Hassan v. The State PLD 2008 Kar. 567; Mazhar Ibnehassan Siddiqui and 2 others v. The State and another 1997 PCr.LJ 1030; Niaz Ahmed alias Niaz Hussain v. The State 1997 PCr.LJ 1034; Wasim Akram v. The State 2006 YLR 168; Muhammad Khalil v. S.H.O. Police Station Gujjar Khan, District Rawalpindi and 5 others 2008 MLD 704; Zulfiqar Ali Mahar v. The State 2003 YLR 2806; State through Advocate-General, N.-W.F.P., Peshawar v. Gulzar Muhammad Dy. Director Agriculture Development Agency N.-W.F.P. and others 1998 SCMR 873; Ghulam Hussain Balouch v. Liaqat Ali Balouch 1999 SCMR 483 = 1999 PLC (C.S.) 397; Zafar and others v. Umer Hayat and others 2010 SCMR 1816; Ansar Ali and another v. The State 2010 SCMR 1821; Lal Khan and another v. Station House Officer, Police Station, Kotwali Jhang and 6 others 2010 PCr.LJ 182; Muhammad Aslam, (Amir Aslam) and others v. District Police Officer, Rawalpindi and others 2009 SCMR 141; Khuda Bux v. The State 2010 MLD 864; Asif Ali Zardari v. Government of Pakistan through Ministry of Interior, Pakistan Secretariat, Islamabad and 3 others 2001 YLR 1749; Atta Muhammad and another v. The State and another 2010 YLR 3000; Haji Muhammad Abbas v. Mrs. Naila Tranum Jamshed and 4 others 2001 PCr.LJ 628 and Badar Ur Islam v. District Police Officer, Faisalabad and 3 others 2007 YLR 2766 rel.

Muhammad Akram Khawaja for Petitioners.

M. Jahangir, D.P.G. for the State.

2013 P Cr. L J 1880

[Lahore]

Before Muhammad Yawar Ali and Ibad-ur-Rehman Lodhi, JJ

SAIF ULLAH SALEEM and others---Petitioners

Versus

The STATE and others---Respondents

Writ Petition No.2902 of 2013, decided on 23rd April, 2013.

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

----Sched, Ss. 6, 7 & 23---Penal Code (XLV of 1860), Ss. 324, 336-B & 337-F(i)---Constitution of Pakistan, Art. 199---Constitutional petition---Transfer of case from Anti-Terrorism Court to the court of ordinary jurisdiction---Application for transfer of case of the petitioners-accused was dismissed by the Special Court---Validity---Offences mentioned in the Schedule to Anti-Terrorism Act, 1997 should have nexus with the objects mentioned in Ss. 6 and 7 of the Act---Nothing had been brought on record to show that the occurrence created terror, panic or sense of insecurity among people and the society---Even in F.I.R., got registered by the complainant, no allegation of creating terror was levelled---Motive for the occurrence was enmity inter-se the parties and for that reason, the application of S.7 of the Act which primarily required the spread of sense of insecurity and fear in common mind was lacking---Occurrence took place in a room of a hotel which was not a public place and the element of striking terror or creating sense of fear in the people or any section of the people was not made discernible in the F.I.R.---Case registered against the petitioners-accused was triable by the court of ordinary jurisdiction---Constitutional petition was allowed and S.7 of Anti-Terrorism Act, 1997 was ordered to be deleted and petition moved under S.23 of Anti-Terrorism Act, 1997 was accepted---Proceedings of the trial of the case were ordered to be transferred to the court of ordinary jurisdiction.

Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Ch. Bashir Ahmad v. Naveed Iqbal and 7 others PLD 2001 SC 521; Basharat Ali v. Special Judge, Anti-Terrorism Court-II, Gujranwala PLD 2004 Lah. 199; Fazal Dad v. Col. (Rtd.) Ghulam Muhammad Malik and others PLD 2007 SC 571 and Bashir Ahmed v. Muhammad Siddique and others PLD 2009 SC 11 rel.

Rana Muhammad Asif Saeed, Muhammad Afzal Jatt and Rana Muhammad Nadeem Kanjoo for Petitioners.

Ch. Faqir Muhammad for Respondents.

Mirza Muhammad Saleem Baig, Additional A.-G. for the State.

Date of hearing: 23rd April, 2013.

2013 P Cr. L J 1886

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

Mst. PARIS BIBI---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.356-J of 2010, heard on 14th November, 2012.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Wajtaker witness and extra-judicial confession---Accused was alleged to have murdered her husband and only evidence against her was her extra-judicial confession and Wajtaker witness---Trial Court convicted the accused under S.302(b), P.P.C. and sentenced her to imprisonment for life---Validity---Wajtaker witness had to prove and explain his presence at the time and place when he saw the assailants after commission of offence but such witness remained unsuccessful in establishing his presence at the time when he had seen accused persons entering into the house of deceased---Ocular account of prosecution witnesses, as well as extra-judicial confession and Wajtaker indicated that witnesses attempted to improve their case in very desperate manner, which statements also suffered from material contradictions---Evidence led by complainant was neither sufficient nor convincing and confidence-inspiring for proving allegation of murder by accused beyond any shadow of doubt---Such evidence could not be taken into consideration for holding accused responsible for the murder of her husband---High Court set aside the conviction and sentence awarded to accused by Trial Court and she was acquitted of the charge---Appeal was allowed in circumstances.

2003 SCMR 1419 rel.

Malik Saeed Hassan and Nazar Abbas Syed for Appellant.

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

Ch. Nazir Ahmad Ranjha for the Complainant.

Date of hearing: 14th November, 2012.

2013 P Cr. L J 12

[Peshawar]

Before Qaiser Rashid Khan, J

GHULAM SARWAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.93 of 2011, decided on 19th March, 2012.

Foreign Exchange Regulation Act (VII of 1947)---

----Ss. 23 & 23A---Unauthorized dealing in foreign exchange---Appreciation of evidence---No foreign currency recovered from the accused---Sessions Judge not carrying out the proceedings in his capacity as a Tribunal as mandated by law---Cognizance of the offence taken without a complaint from authorized person---Effect---Federal Investigation Agency conducted a raid at the office in question and apprehended the accused who was allegedly involved in "Hundi-Hawala" business---Sessions Judge convicted the accused under S.23 of the Foreign Exchange Regulation Act, 1947---Contentions of the accused were that certain amount of money found at the time of his arrest was not a unique phenomenon as he was working as a manager of a medicine company at the office where the raid was conducted; that currency found in possession of the accused was Pakistani currency and not foreign currency; that no document was recovered from the accused which could connect him with the "Hundi" business; that the Sessions Judge was not competent to take cognizance of the case, and that the complaint against the accused was not made by the competent person---Validity---Prosecution witness (official of Federal Investigation Agency) had admitted in his cross-examination that building mentioned in the murasila was the office of a medicine company where business of medicines was carried out and that no foreign currency was recovered from the accused---Said witness also referred to certain fax messages and according to him the same contained names of persons who visited the office of the accused to receive their amounts but said fax messages were not brought on record---Mere possession of certain amount by an individual, dealing in medicines, would not show his involvement in the "Hundi" business without any supporting documents---Sessions Judge had not carried out the proceedings in his capacity as a Tribunal as mandated by Ss.23 and 23A of Foreign Exchange Regulation Act, 1947, therefore, proceedings carried out were coram non judice---Tribunal could not take cognizance of the offence unless complaint was made in writing by a person authorized by the Federal Government or State Bank but, in the present case, the official of the Federal Investigation Agency had no authorization for conducting a raid at the office of the accused---Appeal was allowed, impugned judgment of the Sessions Judge was set aside and the accused was acquitted of the charge with the direction to return the confiscated amount and documents to the accused.

Saleemullah Khan Ranazai for Appellant.

Akhter Saeed Khan for the State.

Date of hearing: 19th March, 2012.

2013 P Cr. L J 32

[Peshawar]

Before Syed Sajjad Hassan Shah, J

WAQAR AHMAD---Petitioner

Versus

SAJJAD and another---Respondents

Criminal Miscellaneous (B.C.A.) No.63-P of 2012, decided on 9th July, 2012.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 324/452/459/148/149--- Pakistan Arms Ordinance (XX of 1965), S. 13---Attempt to commit qatl-e-amd, house trespass after preparation for hurt, assault or wrongful confinement, hurt caused whilst committing lurking house-trespass or house-breaking, rioting armed with deadly weapons, unlawful assembly, possession of illegal weapon---Bail, cancellation of---Accused and co-accused were alleged to have trespassed into the house of the complainant with the intent of stealing and in the process fired at the complainant, injuring him on his head---Accused directly charged in the F.I.R. with specific role--- Record stating that accused while armed with weapon overpowered the complainant on the spot--- Prosecution version was duly supported by incriminating recoveries, expert report, medical evidence and unexplained abscondence of the co-accused---Intention of committing qatl-e-amd of the complainant yet to be seen---Available material was yet to be proved by recording evidence---Allegation demonstrating that case was not one of further inquiry---Prima facie, accused was reasonably connected with the offence covered by prohibitory clause of S.497, Cr.P.C.---Bail granted to the accused was recalled, in circumstances.

Abdul Hayee and 2 others v. The State 1996 SCMR 555 and Naseer Ahmed v. The State PLD 1997 SC 347 rel.

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

----S. 497---Bail---Principle---Assessment of evidence/facts---Scope---For the purpose of bail, tentative assessment of facts available on the record had to be made and at such stage sifting of evidence collected by the prosecution was neither permissible nor advisable for the sake of fair and just administration of criminal justice.

Shahzaman and 2 others v. The State and another PLD 1994 SC 65 rel.

Khan Akbar Khan for Petitioner.

Sawar Khan for Respondent No.1.

Mujeebu Rehman for the State.

Date of hearing: 9th July, 2012.

2013 P Cr. L J 61

[Peshawar]

Before Dost Muhammad Khan, C.J.

Syed SHAH FAHAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous B.A. No. 1781 of 2011, decided on 9th January, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Haraabah---Bail, grant of---Further inquiry---Besides accused, co-accused was made principal accused to whom bail was refused even by High Court; because there was strong corroborative circumstantial evidence against him and because the crime was committed in a ruthless manner---On the entire available record there was no incriminating evidence available against accused expect statement of co-accused recorded under S.161, Cr.P.C., which did not fall within the purview of legal evidence---Case being that of further inquiry, accused was granted bail, in circumstances.

Arshad Hussain Yousafzai for Petitioner.

Ms. Zarmeena for the State.

Nemo for the Complainant.

Date of hearing: 9th January, 2012.

2013 P Cr. L J 114

[Peshawar]

Before Qaiser Rashid Khan, J

SAIF UR REHMAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Quashment Petition No.16-D of 2012, decided on 6th March, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 195, 476 476-A & 561-A---Penal Code (XLV of 1860), Ss. 193, 195 & 203---Prosecution for certain offences relating to documents given in evidence and relating to public justice, false evidence, giving or fabricating false evidence with intent to procure conviction, giving false information respecting an offence committed---Petition for quashing of order and expunction of remarks---Contents of F.I.R. revealed that accused-police official (Station House Officer) allegedly raided the house of a member of a terrorist gang on 14-10-2011, wherein weapons and explosives were found and accordingly an F.I.R. was lodged on the same day---Two local Urdu newspapers had reported the whole story verbatim on 6-10-2011, i.e., eight days prior to the registration of the F.I.R.---Trial Court while hearing the bail application of the said alleged terrorist made the observation regarding the conduct of the accused having given false information/evidence with regard to the commission of the offence and found that act on part of the accused was punishable under Ss.193, 195 and 203, P.P.C. by invoking provisions of S.476, Cr.P.C. and directed to treat the order as a complaint under S.476-A, Cr.P.C. read with S.195, P.P.C.---Trial Court issued further orders for initiating proceedings against the accused by way of separate trial and ordered further inquiry into the matter---Contention of accused that newspaper clippings were mere imagination of the news editors and alleged terrorist had never lodged any complaint against his illegal confinement/custody of the police; that false information had been attributed to the accused regarding commission of the offence, and that order of Trial Court, being against the law, was liable to be expunged---Validity---Expunction/deletion of remarks of the Trial Court could have adversely affected the trial proceedings in the F.I.R. lodged against the alleged terrorist---High Court exercised judicial restraint to let the law take its course and observed that contentions raised by accused with respect to present petition could be taken up before the Trial Court, and if they were found correct, accused could be acquitted under S.249-A or 266-K, Cr.P.C.---Petition for quashing of order and expunction of remarks was dismissed, in circumstances.

Bahadur Khan Marwat for Petitioner.

Sanaullah Shamim, D.A.-G. for the State.

Date of hearing: 6th March, 2012.

2013 P Cr. L J 161

[Peshawar]

Before Waqar Ahmad Seth and Shah Jehan Khan Akhundzada, JJ

MUHAMMAD ZAMURAD---Appellant

Versus

CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU through Deputy Prosecutor-General, PDA Complex Hayatabad, Peshawar---Respondent

E. Cr. A. No.12 of 2010, decided on 4th September, 2012.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(iv) & 10---Criminal Procedure Code (V of 1898), S.431---Corruption and corrupt practices---Assets beyond means---Appreciation of evidence---Death of accused---Fine, imposition of---Accused was convicted by Trial Court for acquiring assets which were disproportionate to his known sources of income---Accused did not deny acquisition of assets however claimed to have acquired them through lawful sources of income---Validity---Accused claimed that plot for residential house was purchased by his father-in-law for his wife and house was constructed on it, however prosecution witness who was previous owner of the plot deposed before Trial Court that the same was purchased by the accused---Allegations of expenses incurred on education of children by accused as well as performance of Umra and fare of UK, were proved by prosecution through oral and documentary evidence--- Prosecution witnesses were found consistent and confidence inspiring and their stance could not be shattered despite lengthy and taxing cross-examination, whereas accused produced cryptic and inconsistent evidence, which was rightly not believed---Trial Court after scrutinizing material available on record convicted and sentenced accused and counsel for accused failed to point out any misreading or non-reading of evidence, justifying interference by High Court---Judgment passed by Trial Court was in accordance with law and material available on record---Accused had died, therefore, his sentence stood abated, however High Court maintained fine imposed by Trial Court---Appeal was dismissed accordingly.

Shah Nawaz Khan for Appellant.

Jamil Khan, D.P.G. and Tariq Javed, A.D.P.G. for Respondent.

Date of hearing: 4th September, 2012.

2013 P Cr. L J 182

[Peshawar]

Before Miftah-ud-Din Khan and Mrs. Irshad Qaiser, JJ

MIAN KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.632 of 2011, decided on 30th July, 2012.

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

----S. 9(c)---Juvenile Justice System Ordinance (XXII of 2000), S. 11---Possession and trafficking of narcotic---Appreciation of evidence---Release of juvenile on probation---Discretion of court---Scope---Conscious knowledge of narcotic---Scope---Accused, who was a juvenile at the time of commission of alleged offence, was forced by the police to stop at a checkpoint and after being apprehended he himself disclosed presence of 13.2 kilograms of charas in petrol tank of his vehicle--- Trial Court convicted and sentenced the accused under S.9(c) of Control of Narcotic Substances Act, 1997---Validity---All witnesses consistently deposed that accused was apprehended on the spot along with his vehicle, which was under his control as he was driving the same at the relevant time---No discrepancy in statement of any witness despite being subjected to searching cross-examination---Accused had conscious knowledge of narcotics concealed in the petrol tank of his vehicle because when he was signalled to stop he tried to escape and was subsequently forced to stop by blocking the road---After arrest, accused himself disclosed presence of narcotics in the vehicle---Accused was in exclusive control of the vehicle in which narcotics were kept in secret cavity, therefore, he would be deemed to be in the exclusive possession of the charas recovered from the vehicle---Nothing on record suggested that narcotic was planted on accused or that he was falsely charged---Samples taken from the recovered substance were sent to Forensic Science Laboratory, which found them to contain charas---At time of framing of charge against accused he was aged about 17/18 years---Section 11 of Juvenile Justice System Ordinance, 2000 provided discretion to court to decide the issue of release of juvenile on probation---Not exercising such discretion or in-action in exercising such discretion would offend the dictates of law---Trial Court, in the present case, had not exercised the discretion vested in it under S.11 of Juvenile Justice System Ordinance, 2000, which surely prejudiced the accused---Appeal was partially allowed, conviction and sentence awarded to accused was maintained, however, case was remanded back to Trial Court to decide the same after providing opportunity of hearing to accused and rendering reason, regarding exercise of discretion, as provided under S.11 of Juvenile Justice System Ordinance, 2000 to release the accused on probation and the terms thereof.

PLD 2010 SC 1052 and 2006 PCr.LJ 1862 rel.

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

----S. 11---Release of juvenile on probation---Discretion of Court---Scope---Reading of S.11 of Juvenile Justice System Ordinance, 2000 provided that the Juvenile Court, after it had decided, that the accused juvenile had committed the offence, might, if it thought appropriate, pass order for releasing the juvenile on probation--- Juvenile Court had discretion to decide the issue of release of juvenile on probation but by not exercising such discretion or in-action in exercising such discretion, the Juvenile Court would offend the dictates of law.

2006 PCr.LJ 1862 rel.

Noor Alam Khan for Appellant.

Said Rehman Khan for the State.

Date of hearing: 30th July, 2012.

2013 P Cr. L J 204

[Peshawar]

Before Qaiser Rashid Khan, J

MUHAMMAD RAMZAN---Petitioner

Versus

The STATE and 2 others---Respondents

Criminal Revision Petition No. 31 of 2011, decided on 10th April, 2012.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Dispute over superdari of vehicle---Vehicle in question was stolen in respect of which its owner registered an F.I.R.---Vehicle was insured and its owner was paid his claim whereafter he executed a letter of subrogation in favour of the insurance company, transferring all tights, title and interest in the said vehicle to the insurance company---Vehicle was subsequently recovered from the respondent against whom an F.I.R. was registered---Respondent claimed to have purchased the vehicle from its owner and also claimed to be in possession of its registration book as well as an open transfer letter---Representative of insurance company (petitioner) and respondent both applied before the court below for superdari of vehicle, which was handed over to the respondent on superdari---Validity---Contention of respondent regarding purchase of vehicle stood belied on account of the F.I.R. which had been lodged by the owner himself---Mere possession of a stolen registration book did not confer any title upon the respondent to retain the vehicle---Insurance company had honoured the claim of the owner of the vehicle and in view of the letter of subrogation executed by the owner, was entitled to the retention of the vehicle by way of superdari---Revision petition was accepted, impugned order of court below was set aside and police was directed to recover the vehicle from the respondent and hand it over to the representative of the insurance company.

Ahmad Ali Khan for Petitioner.

Jehanzeb Ahmed Chughtai for the State.

Muhammad Yousaf Khan for Respondent No.2.

Date of hearing: 10th April, 2012.

2013 P Cr. L J 237

[Peshawar]

Before Mian Fasih-ul-Mulk and Mrs. Irshad Qaiser, JJ

SHAH RUKH---Appellant

Versus

The STATE---Respondent

Jail Criminal Appeal No.98 of 2010, decided on 5th September, 2012.

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

----S. 302---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-e-amd---Appreciation of evidence---Prosecution case primarily rested on the dying declaration of the deceased, and the ocular account of the incident furnished by prosecution witness---Conviction on the basis of "dying declaration"---Prerequisites---Statement of the deceased, then injured, in the form of F.I.R., though could be treated as "dying declaration", which itself was good enough under Art.46 of Qanun-e-Shahadat, 1984, for sustaining conviction of accused on a capital charge, but for believing dying declaration, certain essential conditions, must be established by the prosecution---Such conditions were that dying man was in full senses, conscious and alert to the surrounding; that he/she was fully oriented in space and time and was able to make a coherent speech; that the dying declaration otherwise rang true, and was sound in substance to be relied upon; that it was free from promptness given by the outside quarter; that Doctor present at the occasion should give a fitness certificate about the condition of the dying man---Police Officer who recorded the report of the deceased, then injured, had stated that he prepared his injury sheet and then referred him to Medical Officer for medical examination---Nothing was available in the statement of Police Official that he recorded the report in the presence of Doctor and obtained a certificate from him---Prosecution had failed to examine the doctor who conducted the postmortem examination of the deceased---Police Official concerned was duty bound to have obtained the certificate from the doctor before the statement of the injured that he was in fit condition to give statement---Fitness of injured to make statement remained doubtful, in circumstances---Dying declaration, being piece of incriminating evidence, was not put to accused at the time of recording of his statement under S.342, Cr.P.C.---Same could not be used against accused, in circumstances---Trial Court had not properly appreciated and scrutinized the evidence produced on the record---It was based on misreading and non-reading of evidence, and also on surmises and conjectures---Prosecution could not prove that material piece of evidence---Ocular account furnished by prosecution witness did not support the prosecution case---Said prosecution witness in his cross-examination had completely shattered the prosecution version---When there was nothing on the record to show that the deceased, then injured, was well oriented in the time and space, his statement, could not be held to be a genuine dying declaration--- Case against accused, in circumstances, could not be said to have been proved beyond any shadow of reasonable doubt--- Conviction of accused on such quality and quantity of evidence could not be maintained which was set aside and accused was acquitted of the charge against him and was set free, in circumstances.

1983 PCr.LJ 2075 and 1989 PCr.LJ 1 ref.

2010 SCMR 1009 and 1996 PCr.LJ 1446 rel.

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

----Art. 46---Dying declaration---Conviction on the basis of dying declaration---Prerequisites---Dying declaration by itself was not a strong evidence being not tested by way of cross-examination---Only reason for accepting the same was the belief phenomenon of the court of law that a person apprehending death due to injury, caused to him was ordinarily not expected to speak a falsehood---To believe or disbelieve a dying declaration, was left to the ordinary human judgment---Strong, independent and reliable corroborative evidence was required for the sake of safe administration of justice---Relying blindly and without proper scrutiny on such a statement, would be no less dangerous approach on the part of the courts of law.

Sher Bahadur and another v. The State 1972 SCMR 661; Muhammad Yaseen v. The State 1972 SCMR 303; Tawab Khan and another v. The State PLD 1970 SC 13 and 2011 SCMR 464 rel.

Q. Intikhab Khan for Appellant.

Abdur Rauf Gandapur for the State.

Date of hearing: 5th September, 2012.

2013 P Cr. L J 256

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

KAMDAR KHAN and 7 others---Petitioners

Versus

HAZRAT AKBAR and 5 others---Respondents

Criminal Revision No.108 of 2012, decided on 9th August, 2012.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 4---Prevention of illegal possession of property etc.---Complaint, dismissal of---No proof of association of accused with land grabbers--- Police report negating fact of illegal dispossession--- Civil suit over disputed property pending--- Effect--- Complainants (petitioners) alleged that accused persons (respondents) had ploughed their land and illegally took possession of same---Complaint under Ss.3 and 4 of Illegal Dispossession Act, 2005 was dismissed by Trial Court as being not maintainable---Validity---Civil suit was pending between parties over the property in dispute---Complainants had resorted to criminal litigation, through present complaint, after failing in civil litigation---No proof on record that accused persons (respondents) were land grabbers---Police had not opined in its report under S.173, Cr.P.C., that accused persons ploughed the disputed land or that they illegally dispossessed the complainants---Trial Court had rightly dismissed the complaint--- Revision petition was dismissed in circumstances.

PLD 2010 SC 616 and PLD 2010 SC 661 ref.

Wali Khan Afridi for Petitioners.

2013 P Cr. L J 272

[Peshawar]

Before Nisar Hussain Khan and Qaiser Rashid Khan, JJ

AFTAB KHAN---Petitioner

Versus

The GOVERNMENT OF KHYBER PAKHTUNKHWA and 4 others---Respondents

Writ Petition No.23 of 2012, decided on 31st January, 2012.

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

----S. 3(1)--- Constitution of Pakistan, Art. 199--- Constitutional petition---Power to arrest and detain suspected persons---Setting aside of detention order---Suspect (petitioner) had been detained for a period of 30 days on the order of the District Officer (respondent) under the provisions of S.3(1) of West Pakistan Maintenance of Public Order Ordinance, 2000---Contention of suspect that he was a peaceful citizen having considerable property and enjoyed great respect in public, and that he had been booked under the said Ordinance in connivance with his opponents---Validity---Although suspect had been charged and even convicted and sentenced for certain cases, but still there was no justification for his detention under the provisions of S.3 of West Pakistan Maintenance of Public Order Ordinance, 2000---Citizen even with the alleged track record as that of the suspect could not be detained or his liberty curtailed---Law provided for proper procedure and law-enforcing agencies and the District Officer could always press into service the penal sections provided in P.P.C., against a person rather than detain him on allegations contained in the impugned order---Detention period of accused (30 days) was too short a period to reform a person or to deter him from his criminal activities, and to cater for such events a proper mechanism had been provided by invoking the penal sections against an individual and by bringing home the charge of guilt against him in a competent court of law---Constitutional petition was allowed, impugned detention order was set aside and suspect was set at liberty.

Muhammad Sadiq Khan for Petitioner.

Ahmad Farooq Khattak, A.A.-G. for Respondents.

Date of hearing: 31st January, 2012.

2013 P Cr. L J 282

[Peshawar]

Before Mrs. Irshad Qaiser, J

AMJID ALI and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Revision No.65-P of 2012, decided on 27th July, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 512 & 344---Qanun-e-Shahadat (10 of 1984), Art. 47---Transfer of statement of complainant from a previous trial to a fresh (present) trial---Scope---Danger and apprehension to life of complainant---Effect---Power to postpone or adjourn proceedings---Scope---Complainant had charged accused persons (petitioners) and co-accused for committing the murder of his brother---Accused persons absconded while trial of co-accused ended with his acquittal---Accused persons were subsequently arrested and faced trial but by that time complainant, himself had absconded due to his involvement in a murder case---Prosecution submitted application for transfer of statement of complainant recorded in the trial of the co-accused to the file of accused persons---Trial Court allowed said application---Contentions of accused persons were that they had no opportunity to cross-examine the complainant when his statement was recorded in the trial of the co-accused; that complainant himself was flouting the law as he was an absconder, and that in view of Art.47 of Qanun-e-Shahadat 1984, statement of complainant had no relevancy and could not be used against them as they had no opportunity of cross-examination of witnesses during the trial of co-accused---Validity---Section 512, Cr.P.C. provided three eventualities for preservation and transfer of statement of witnesses, during abscondence of accused, one of which was where the attendance of prosecution witness could not be procured without an amount of delay, expense or inconvenience---Complainant in the present case was charged for committing murder due to a blood-feud, which meant that there was danger and apprehension to his life to appear in public places and in view of the law and order situation in the country, there was possibility that he might have been advised not to attend court and record statement at the cost of his life---Postponing or adjourning proceedings of trial under S.344, Cr.P.C., to procure attendance of complainant would cause great inconvenience to accused persons, who were behind bars---Record showed that complainant regularly attended court during trial of co-accused and his statements were recorded twice but now due to unavoidable circumstances, he was unable to attend court and record his statement---Trial Court had rightly passed an order for the transfer of statement of complainant---Revision petition was dismissed, in circumstances.

2003 YLR 919 and PLD 2010 Pesh. 19 ref.

PLD 2010 SC 642 rel.

Ishtiaq Ibrahim for Petitioner.

Rehan Malik Awan for the State.

Khawaja Muhammad Khan for Respondent No.2.

Date of hearing: 27th July, 2012.

2013 P Cr. L J 290

[Peshawar]

Before Assadullah Khan Chamkani, J

MUHAMMAD ALI SHAH---Appellant

Versus

The STATE through AG, Khyber Pakhtunkhwa---Respondent

Criminal Appeal No.53 of 2011, decided on 11th September, 2012.

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---Appreciation of evidence---Accused spending time in jail on account of his illegal conviction and sentence passed by a court lacking jurisdiction to pass the same---Subsequently court of competent jurisdiction convicting and sentencing accused without keeping in sight time already spent in jail by him on account of his illegal sentence---Effect---Allegation against accused was that he fraudulently and dishonestly misappropriated a sum of money and thus committed criminal breach of trust---Accused (appellant) was convicted and sentenced for 2-1/2 years' imprisonment by the Judicial Magistrate under S.409, P.P.C., however his conviction was set aside by the High Court on the grounds that Judicial Magistrate lacked jurisdiction to try the case and same was sent to Anti-Corruption Establishment with a direction that in case he was convicted, period already spent in jail by accused should be kept in sight---Judge, Anti-Corruption convicted and sentenced accused to one year imprisonment---Contention of accused was that in view of his first sentence he had already spent sufficient period in jail but the Judge, Anti-Corruption while sentencing him, did not consider the same in his favour---Validity---Nothing on record established ill-will of Anti-Corruption authorities against the accused---Evidence available on record had been rightly relied upon by Judge, Anti-Corruption and conviction passed was based on legal and admissible evidence, however, Judge, Anti-Corruption should have exercised discretion in favour of the accused while convicting and sentencing him---Non-exercise of discretion in favour of accused amounted to miscarriage of justice---Conviction of accused maintained but sentence awarded by Judge, Anti-Corruption was converted into the period which accused had already spent in jail on account of his illegal conviction by the Judicial Magistrate---Appeal was disposed of accordingly. [pp. 292, 293] A, B & C

Khawaja Salahuddin for Appellant.

Ikramullah Khan, A.A.-G. for the State.

Date of hearing: 11th September, 2012.

2013 P Cr. L J 301

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

Mst. KAUSAR ZAFARULLAH and another---Petitioners

Versus

The STATE and others---Respondents

Criminal Revision No.167 of 2011, decided on 14th September, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 249-A & 265-K---Penal Code (XLV of 1860), Ss. 420, 465 & 468---Prevention of Corruption Act (II of 1947), S.5---Cheating and forgery---Pendency of civil proceedings---Stay of criminal trial---Principle---Cognizable offences were committed by accused, for which trial was in progress, when Trial Court stayed proceedings till decision of civil suit and complainants were aggrieved of that order passed by Trial Court--- Validity--- Although civil liability was independent of criminal liability and no invariable rule existed to the effect that pending decision of civil suit, criminal proceedings must be stayed as it was purely matter of discretion, yet while exercising discretion, guiding principle was to see as to whether accused was likely to be prejudiced if criminal proceedings were not stayed---When it was clear from gist of materials available on record that criminal liability was dependent on outcome of civil litigation regarding matter in issue, then criminal proceedings must be stayed, particularly when dispute was with regard to title of property---Normally criminal proceedings should not be postponed pending decision of civil litigation connected with same subject-matter but where it was clear that criminal liability was dependant on result of civil litigation or was so prima facie connected with it which would give rise to serious danger of grave injustice being done in the case---Complainants had already instituted civil suits alleging fraud in attestation of general power of attorney by their father and matter was sub judice before civil court, therefore, Trial Court had rightly stayed criminal proceedings pending before him till final decision of civil suits instituted by complainants---Such order of Trial Court did not call for any interference by High Court in it revisional jurisdiction---Revision was dismissed in circumstances.

Akhlaq Hussain Kayani v. Zafar Iqbal Kayani and others 2010 SCMR 1835 fol.

Shahab Khattak for Petitioners.

Anwar Zeb and Abdul Sattar Khan for the State.

Date of hearing: 14th September, 2012.

2013 P Cr. L J 316

[Peshawar]

Before Assadullah Khan Chamkani, J

MUHAMMAD SHOAIB---Petitioner

Versus

STATE through A.A.-G. and another---Respondents

Criminal Miscellaneous (B.A.) No. 385-M of 2012, decided on 24th September, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 376---Rape---Bail, refusal of---Allegation against accused was that he committed rape with the victim, who was a school going girl aged about 11/12 years---Although there was delay in lodging F.I.R. but such delay in cases similar to the present one was no ground for creating any doubt as parties were conscious of family honour---Delay in lodging F.I.R. could not be made a ground for bail when otherwise there was sufficient material available on record, which, prima facie, connected accused with the commission of the offence---Medical report of victim showed that her hymen was not intact, which supported the version of complainant---No question of false implication as both parties were co-villagers---Absence of struggle marks on the body of victim was not a disproof of the offence since the victim was a helpless girl of eleven years and the accused was a 23 years old man with a strong physique---High Court observed that victim was a virgin/tender aged school going girl and it could not be believed that she would put her career, personal respect and family honour at stake by fabricating a false allegation of such nature in the absence of any motive---Bail petition of accused was dismissed in circumstances.

Sajjad Anwar for Petitioner.

Ikramullah Khan, A.A.-G. for the State.

Muhammad Sher Shah for the Complainant.

Date of hearing: 24th September, 2012.

2013 P Cr. L J 333

[Peshawar]

Before Rooh-ul-Amin Khan, J

MADAD KHAN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Petition No.1043 of 2012, decided on 17th August, 2012.

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

----Ss. 497 & 103---Pakistan Arms Ordinance (XX of 1965), Ss.13 & 14---Possession and transportation of illegal weapons--- Bail, refusal of--- Knowledge of presence of arms in a vehicle--- Scope---Transportation of huge quantity of arms and ammunition---Inference---Police recovered a huge quantity of arms and ammunitions from secret cavities of vehicle which was being driven by the accused, while co-accused was sitting in the front seat--- Contentions of accused and co-accused were that S.13 of West Pakistan Arms Ordinance, 1965 was bailable; that no independent witness had been associated by the police, and that recovery had been effected from secret cavities of vehicle and conscious knowledge of it was yet to be proved---Validity---Offence under S.13 of Pakistan Arms Ordinance, 1965 was non-bailable in all Provinces except for the Province of Punjab---Accused and co-accused had come across police all of a sudden at a checkpoint, therefore compliance with S.103, Cr.P.C. was not possible---Vehicle was under the direct control of accused who was driving it and co-accused was sitting on the front seat, therefore, they could not be absolved from liability on mere assertion that they had no knowledge of existence of such huge quantity of arms and ammunitions in secret cavities of vehicle---Transportation of such huge quantity of arms and ammunition without any license or permit was not an ordinary selling or possession of arms, rather showed its transportation for subversive activities and ulterior motives of accused and co-accused---Bail applications were dismissed, in circumstances.

1996 MLD 2036 rel.

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

----Preamble---Object and purpose---Main object and purpose of the Ordinance appeared to be to regularize the possession of weapon etc. and thereby to identify misuse of same so that lives and properties of innocent people were properly safeguarded. [p. 335] A

(c) Interpretation of statutes---

----Preamble and object of an Act---Significance---Preamble and object of an Act was always to be kept in mind while interpreting a provision of the Act on the well-known principle that "preamble was the key to understand an Act".

Ismaeel v. The State 2010 SCMR 27 rel.

Nasruminullah for Petitioner.

Naveed Akhter, A.A.-G. for the State.

Date of hearing: 17th August, 2012.

2013 P Cr. L J 369

[Peshawar]

Before Mazhar Alam Khan Miankhel and Assadullah Khan Chamkani, JJ

FAZAL AKBAR and another---Appellants

Versus

The STATE through A.A.-G. and another---Respondents

Criminal Appeal No.92-M of 2012, decided on 7th September, 2012.

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

----S. 7(h)---Pakistan Arms Ordinance (XX of 1965), S. 14---Explosive Substances Act (VI of 1908), S. 5---Qanun-e-Shahadat (10 of 1984), Art. 40---Criminal Procedure Code (V of 1898), S. 103---Acts of terrorism, possession of illegal weapons, making or possessing explosives under suspicious circumstances---Appreciation of evidence--- Recovery made on information (pointation) of accused---Applicability of S.103, Cr.P.C. and Art.40 of Qanun-e-Shahadat, 1984---Scope---Police had allegedly recovered arms, ammunition and explosives on the alleged pointation of accused persons (appellants)---Trial Court convicted and sentenced the accused persons under S.14 of Pakistan Arms Ordinance, 1965, under S.5 of Explosive Substances Act, 1908 and under S.7(h) of Anti-Terrorism Act, 1997---Validity---Information provided by accused persons, which led to the discovery of arms, ammunitions and explosives came within the scope of Art.40 of Qanun-e-Shahadat, 1984---Section 103, Cr.P.C. was not applicable to the present case , as no search was to be made by the police officials rather it was the accused persons who led to the recovery of arms, ammunitions and explosives---Police witnesses were good witnesses and could be relied upon if their testimony remained unshattered during cross-examination and no mala fide, ill-will and personal grudge was attributed to them---Marginal witness (police official) and investigation officer supported the version of the prosecution and stood firm during their cross-examination and nothing beneficial could be elicited from them to cast doubt on their veracity---Arms experts confirmed that the weapons recovered were in working condition---Minor discrepancies in the evidence of prosecution witnesses were not substantive enough to create doubt about the involvement and guilt of accused persons---Prosecution had proved the factum of recovery on the basis of convincing evidence---Appeal against conviction of accused persons was dismissed accordingly.

Mir Muhammad v. The State 1994 SCMR 614 and Riaz Hussain v. The State 2010 MLD 1127 rel.

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

----Art. 40---Recovery made on information (pointation) of accused in police custody---Admissibility as evidence---Principles---Discovery of any fact on the information of the accused in custody of police was admissible under Art.40 of Qanun-e-Shahadat, 1984---For the applicability of said Article, the prosecution must establish that information given by the accused led to the discovery of some fact deposed by him; that the discovery was of some fact which the police had not previously learnt from any other source and that the knowledge of the fact was first derived from the information given by the accused.

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

----S. 103---Recovery made on information (pointation) of accused---Non-association of private witness---Validity---Where an accused led to the recovery of something, then provisions of S.103, Cr.P.C. would not apply because said section would be applicable only in cases where search was to be made by the police officials of a house or some other place.

Muhammad Ali Khan and Ashfaq Ahmad for Appellants.

Ikramullah Khan, Additional Advocate-General for the State.

Date of hearing: 7th September, 2012.

2013 P Cr. L J 400

[Peshawar]

Before Khalid Mehmood, J

Qazi FAISAL WAJID---Petitioner

Versus

MUNIR ULLAH KHAN and others---Respondent

Criminal Miscellaneous Q. No.13 of 2012, decided on 24th July, 2012.

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

----S. 489-F---Criminal Procedure Code (V of 1898), S. 561-A---Dishonestly issuing a cheque---Petition for quashing of F.I.R., dismissal of---Cheque issued as a "guarantee" would fall within the ambit of S.489-F, P.P.C.---Accused (petitioner) entered into an agreement with the complainant (respondent) regarding bargaining of some property and issued the cheque in question as security/guarantee, which got dishonoured on presentation on account of insufficient funds---Contention of accused was that cheque in question had only been issued as a guarantee/security against the bargain struck between the parties---Validity---Accused admitted issuing the cheque as a guarantee regarding transfer of suit property---Words "fulfillment of obligation" used in S.489-F, P.P.C. amounted to a guarantee for certain commitment, therefore, case of accused prima facie came within the ambit of S.489-F, P.P.C.---Accused issued the cheque as security knowing that there was insufficient amount lying in his account--- Although civil suit regarding suit property was ending before the civil court regarding its transfer, but for issuing a fake cheque civil and criminal proceedings could proceed simultaneously side by side---Investigation was at initial stage and no case for quashing of F.I.R. was made out---Petition was dismissed accordingly.

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

----S. 489-F---Dishonestly issuing a cheque---Initiating criminal proceeding under S.489-F, P.P.C. during pendency of civil proceedings---Legality---For issuing a fake cheque civil and criminal proceedings both could proceed side by side.

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

----S. 489-F---Dishonestly issuing a cheque---Cheque issued as a guarantee/security---Scope---Words "fulfilment of obligation" used in S.489-F, P.P.C. amounted to a guarantee for certain commitment, therefore, a cheque issued as a guarantee/security would come within the ambit of S.489-F, P.P.C.

Shad Muhammad Khan for Petitioner.

M. Nawaz Khan Swati, A.A.-G. and M. Arif Khan Jadoon for Respondents.

Date of hearing: 24th July, 2012.

2013 P Cr. L J 434

[Peshawar]

Before Qaiser Rashid Khan, J

Hafiz SHADOO---Petitioner

Versus

ABDUL GHAFFAR and another---Respondents

Criminal Miscellaneous Quashment Petition No.31 of 2012, decided on 13th March, 2012.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss. 496-A/34---Enticing or taking away or detaining with criminal intent a woman, common intention---Quashing of F.I.R.---Allegation against accused and co-accused was that they abducted the alleged abductee for contracting marriage with her when she was already married to another person---Validity---Alleged abductee along with the co-accused appeared before the High Court and stated they had performed Nikah in accordance with Sharia---Alleged abductee stated that the complainant (brother of alleged abductee) had falsely implicated the accused in the case and being sui juris, she of her own will and volition had entered into wedlock with the co-accused---Said another person with whom alleged Nikah of abductee had been performed earlier did not turn up to lend support to the version of the complainant---Story narrated by the complainant had lost its significance as well as its veracity when alleged abductee had herself spilled the beans about her alleged abduction---Quashment petition was accepted and the F.I.R. was quashed.

Sher Khan and Kamran Baloch for Petitioner.

Sanaullah Shamim, D.A.-G. for the State.

Malik Atta Muhammad for the Complainant.

Date of hearing: 13th March, 2012.

2013 P Cr. L J 454

[Peshawar]

Before Mian Fasihul Mulk and Rooh-ul Amin Khan, JJ

SAEED NAWAZ and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.700 of 2012, decided on 9th October, 2012.

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

----S. 9(c)---Possession and trafficking of narcotics---Appreciation of evidence---Complainant, Police Officer, who admitted the arrest of accused persons on the spot, was put to lengthy cross-examination, but nothing favourable to the defence was unearthed---Complainant who made his statement fully in consonance with the facts and contents of the F.I.R. and recovery memo, had established the prosecution case up to the hilt---Arrest of accused on the spot and recovery of narcotic substances from secret cavities of the vehicle being driven by accused, could not be denied or rebutted---Except for the minor contradiction about the number of packets of the recovered contrabands, nothing favourable to accused could be brought on record, in the shape of evidence of the prosecution witnesses---Said contradiction was not of a serious nature, and same could not be considered to be fatal and sufficient to vitiate the recovery proceedings, or to make the recovery doubtful---Prosecution witness had stated that the recovery was effected in his presence from the secret cavities of the vehicle---Rest of the witnesses had confirmed their respective roles as assigned to them by the prosecution---Report of Forensic Science Laboratory had confirmed that the contraband recovered from accused, was actually charas---Delay in sending the samples to the Laboratory had fully been explained---No material inconsistency or discrepancy, was found in the statements of prosecution witnesses---Recovery of huge quantity of charas from the secret cavities of the seized vehicle had been proved beyond any shadow of doubt---Record also proved that at the time of arrest, accused was driving the vehicle and co-accused was sitting in the front seat of said vehicle---Positive report of Laboratory supported the prosecution version and the prosecution on the strength of unimpeachable and consistent evidence had succeeded in bringing home the charge against accused beyond any shadow of reasonable doubt---All the witnesses of the prosecution, who had witnessed the recovery of the contraband from the vehicle, had remained consistent---Trial Court had rightly rejected defence version of accused persons regarding minor contradiction about the number of packets of the contraband---Prosecution had successfully established its case through confidence-inspiring evidence of eye-witnesses recorded before the Trial Court, which was not at all shattered by the defence, during cross-examination---Well-founded, well-reasoned order of the Trial Court, needed no interference by High Court.

Safar-ur-Rehman and others v. The State 2011 PCr.LJ 1334; Haji Inayat and others v. The State 2010 PCr.LJ 825; Hayat Khan v. The State 2011 YLR 890; Muhammad Shafiq v. The State 2010 PCr.LJ 548; Amjad Ali v. The State 2012 SCMR 577; Mst. Jameela and others v. The State PLD 2012 SC 369 and Muhammad Aslam v. The State 2011 SCMR 820 distinguished.

Ismaeel v. State 2010 SCMR 27 and Tariq Mahmood v. The State PLD 2009 SC 39 rel.

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

----Rr. 4 & 5---Delay in sending samples---Dispatching of samples beyond 72 hours, was not a sine qua non---Mere delay in sending the samples to the Laboratory, was not at all fatal to the prosecution case because Rr.4 & 5 of Control of Narcotic Substances Government Analysts) Rules, 2001, had placed no bar on the Investigating Officer to send the samples beyond 72 hours of seizure or recovery of the contraband---Provisions in that respect, were directory and not mandatory, and could not substitute the substantive provisions of Control of Narcotic Substances Analysis Rules, 2001---Non-compliance of said Rr.4 & 5 of the Rules would not frustrate the very purpose absolute nullity.

PLD 2009 SC 39 rel.

(c) Administration of justice---

----Each and every case, was to be decided on its own peculiar nature and circumstances.

Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 SC 691; The State v. Mushtaq Ahmad PLD 1973 SC 418 and Trustee of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 rel.

Miss Farhana Murwat for Appellants.

Abdur Rauf Khan Gandapur for the State.

Date of hearing: 9th October, 2012.

2013 P Cr. L J 492

[Peshawar]

Before Assadullah Khan Chamkani and Shah Jehan Khan Akhundzada, JJ

KHAISTA BACHA alias BACHA---Appellant

Versus

HABIB KHAN and another---Respondents

Criminal Appeal No.569 and Murder Reference No.22 of 2010, decided on 8th November, 2012.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Report of the incident was lodged within four hours of the occurrence---Place of the occurrence was situated in a far-flung area at the distance of 50/51 kilometers from the Police Station with no better transport facility---Delay in lodging of report, in circumstances, was of no significance---Statement of the complainant and prosecution witnesses, were consistent on material points---Presence of said witnesses was established at the scene of occurrence; they all deposed the ocular testimony and supported the prosecution version---Said witnesses were subjected to lengthy cross-examination, but nothing material could be brought out, nor any dent could be created in their evidence; they stood firm and their veracity could not be shaken---Name of the eye-witnesses and role of accused in firing at the deceased, had been mentioned therein; which got support from the medical evidence, which had supported the ocular account---Accused being son-in-law of the complainant, being known to the complainant, there was no question of misidentification---Eye-witnesses though were related inter se but mere relationship was no ground to discard their evidence---Interested witness was a person who had a motive to falsely implicate a person, but testimony of the prosecution witnesses was not found tainted and they had no motive to falsely implicate accused---No previous enmity between the parties---No possibility existed that the close relatives of the deceased would let the actual culprit scot-free and substitute an innocent person for commission of an offence involving capital punishment---Eye-witnesses charged the accused in their statements which went unchallenged and they remained consistent in their deposition---Failure to conduct post mortem, was not fatal to the prosecution case---Any variation in the site plan and minor discrepancies in the statements of eye-witnesses, was of no consequence---Prosecution, in circumstances, had fully established the guilt of accused, the Trial Court had rightly convicted accused, in circumstances.

Sharafat Ali v. The State 1999 SCMR 329 rel.

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

----S. 302(b)--- Qatl-e-amd--- Appreciation of evidence--- Sentence, reduction in---Occurrence had taken place in the house of accused---Record had established that the complainant party had come to the house of accused, where some sort of hot words were exchanged between the complainant party and accused, as the complainant was interested to take his daughter/deceased, who was wife of accused, to his house for few day but accused was not agreeing with the suggestion---Parties, at that juncture, might have used such language, which infuriated the accused---Occurrence, took place on the spur of moment and there was no premeditation on the part of accused---Case, in circumstances, was not that of capital punishment---Death sentence was a normal penalty for the offence of murder, but in appropriate cases, where some extenuating circumstances were available, the courts had the discretion to award lesser punishment of imprisonment for life under S.302, P.P.C.---Extenuating/mitigating circumstances for the purpose of awarding lesser sentence existed, but the court below had not duly attended to them while considering the quantum of sentence to be imposed on the accused---Accused was entitled to the benefit of doubt in circumstance---Case being not of capital punishment, maintaining conviction of accused under S.302(b), P.P.C., sentence of death awarded to accused was converted to imprisonment for life with benefit of S.382-B, Cr.P.C.

Mir Muhammad alias Miro v. The State 2009 SCMR 1188 rel.

Sayed Badshah for Appellant.

Ikramullah Khan, A.A.-G. for Respondents.

Date of hearing: 8th November, 2012.

2013 P Cr. L J 557

[Peshawar]

Before Waqar Ahmad Seth and Rooh ul Amin Khan, JJ

SAJJAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.152-P of 2012, decided on 4th October, 2012.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 4 & 5---Possession and trafficking of narcotic---Appreciation of evidence---Accused were apprehended at a police picket on the basis of secret information and 175 kilograms of charas pukhta was recovered from the secret cavities of the vehicle he was driving---Trial Court convicted and sentenced accused under S.9(c) of Control of Narcotic Substances Act, 1997---Validity---Accused was driving the vehicle in question and was arrested on the spot---F.I.R. was promptly lodged---Complainant (police official) was put to lengthy cross-examination but nothing favourable to the defence was unearthed---Statement of complainant was in full consonance with the facts and contents of the F.I.R. and recovery memo---Minor contradictions in statements of prosecution witnesses (police officials) were not sufficient to vitiate the prosecution case or make recovery doubtful---Forensic Science Report confirmed that all samples sent were charas---Mere delay in sending samples to Forensic Science Laboratory was not fatal to the prosecution case because Rules 4 and 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001 placed no bar on the investigation officer to send the samples beyond the 72 hours of seizure or recovery of contraband---Recovery of huge quantity of charas from secret cavities of vehicle had been proved beyond any shadow of doubt---Appeal was dismissed and conviction of accused was maintained.

Ismaeel v. State 2010 SCMR 27 and Tariq Mahmood v. The State PLD 2009 SC 39 ref.

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

----Rr. 4 & 5---Control of Narcotic Substances Act (XXV of 1997), S.9---Possession and trafficking of narcotic---Delay in sending samples---Non-compliance with Rules under Control of Narcotic Substances (Government Analysts) Rules, 2001---Effect---Mere delay in sending samples to Forensic Science Laboratory was not fatal to the prosecution case because Rules 4 and 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001 placed no bar on the investigation officer to send the samples beyond the 72 hours of seizure or recovery of contraband---Provisions of Control of Narcotic Substances (Government Analysts) Rules, 2001 in such respect were directory and not mandatory in nature---Non-compliance with Rules 4 and 5 of the said Rules would not frustrate the very purpose of Control of Narcotic Substances Act, 1997 or render the recovery and arrest an absolute nullity.

Abdul Latif Afridi for Appellant.

Muhammad Tariq Khan for the State.

Date of hearing: 4th October, 2012.

2013 P Cr. L J 578

[Peshawar]

Before Dost Muhammad Khan, C.J. and Shah Jehan Khan Akhundzada, J

ALI GOHAR---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.698 of 2011, decided on 2nd October, 2012.

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

----S. 302---Qanun-e-Shahadat (10 of 1984), Art.46---Qatl-e-amd---Appreciation of evidence---Commutation of death sentence to life imprisonment---Enhancement of compensation---Dying declaration, reliance on---Scope---Accused was convicted under S.302(b), P.P.C. and sentenced to death along with payment of Rs.300,000 as compensation to legal heirs of deceased---Deceased, in injured condition, soon after the occurrence lodged the F.I.R. and narrated the incident to the police in presence of an eye-witness and two verifiers ---Deceased directly charged the accused by attributing to him the specific role of firing and also disclosed the motive for the occurrence---Since the lodger of the F.I.R. i.e. deceased, succumbed to his injuries in the hospital later on, therefore, F.I.R. was to be treated as his dying declaration---Dying declaration of deceased also found support from the medical evidence and from the long abscondence of the accused---Crime weapon was recovered on the disclosure and pointation of the accused---Prosecution had proved its case against accused beyond any shadow of doubt, however since accused was fifty years of age and in the light of the facts and circumstances of the case and evidence led by prosecution, awarding life imprisonment instead of death would meet the ends of justice---Conviction of accused was maintained, however his sentence of death was altered to life imprisonment and payment of compensation to legal heirs of deceased was enhanced to Rs. 600,000---Accused was denied the benefit of S.382-B, Cr.P.C. because of his long abscondence of five years---Appeal was disposed of accordingly.

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

----Art.46---Dying declaration as a basis for conviction---Scope and principles---Dying declaration was a valuable piece of evidence and if it was free from suspicion and believed to be true, it might be sufficient for conviction---Test for determining genuineness of a dying declaration was, whether intrinsically it rang true; whether there was any chance of mistake on the part of the dying person in identifying or naming his assailants, and whether it was free from prompting by any outside quarter and was not inconsistent with other evidence and circumstances of the case.

Ghulam Mohyuddin Malik for Appellant.

Danial Khan Chamkani for the State.

Khawaja Muhammad Khan Gara for the Complainant.

Date of hearing: 2nd October, 2012.

2013 P Cr. L J 595

[Peshawar]

Before Waqar Ahmad Seth, J

FAZAL RABI---Petitioner

Versus

NASIM AKHTAR and another---Respondents

Criminal Miscellaneous Bail Cancellation Application No.132-P of 2012, decided on 2nd November, 2012.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 452, 427, 380, 148 & 149---House trespass after preparation for hurt, assault or wrongful restraint, mischief causing damage to the amount of fifty rupees, theft in dwelling house, rioting armed with deadly weapons, unlawful assembly---Petition for cancellation of bail, dismissal of---Accused had been granted bail by Trial Court on the basis that no recovery of any article had been made from his direct possession; that neither any independent witness of the occurrence nor anyone else had seen the accused taking away the articles or destroying them, and that the offence did not attract the prohibitory clause of S.497, Cr.P.C---Reasons recorded by Trial Court for granting bail seemed to be reasonable and same were tentative in nature, which established a case of further inquiry---No document or record had been produced to show that accused had misused his bail---Investigation of the case was finalized and challan had been submitted, therefore, physical custody of accused was no more required for purposes of investigation---Petition for cancellation of bail was dismissed in circumstances.

Muzaffar Iqbal v. Muhammad Imran Aziz 2004 SCMR 231; 2009 SCMR 786 and 2008 SCMR 1715 ref.

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

----S. 497(5)---Bail, cancellation of---Grounds and principles.

The bail can be cancelled when;-

(i) Exceptionally strong grounds such as abuse/misuse of concession of bail exist;

(ii) A Court cannot cancel the bail even when the offence is punishable with death or imprisonment for life, and even if the grant of bail is prohibited under section 497(1), Cr.P.C. the discretion is left in the Court under section 497(5), Cr.P.C.

(iii) Grounds for cancellation of bail are pari materia with the principles which apply to setting aside the orders of acquittal.

(iv) Bail can be recalled where the person on bail repeats the offence;

(v) Hampers the investigation;

(vi) Makes some efforts to tamper with the evidence;

(vii) Commits some acts of violence against the police;

(viii) Prosecutes the witnesses;

(ix) Manages to flee away from the country or beyond the control of sureties;

(x) Order of bail has been obtained through misrepresentation or suppression of facts.

The grounds and principle for grant of bail are totally different from the ground and principle for cancellation of bail already granted to an accused.

Wali Khan Afridi for Petitioner.

Sahib Zada Riazatul Haq for Respondents.

Date of hearing: 2nd November, 2012.

2013 P Cr. L J 640

[Peshawar]

Before Mian Fasihul Mulk and Rooh-ul-Amin Khan, JJ

IMRAN---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos. 66-P and 78 of 2012, decided on 27th July, 2012.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S.103---Possessing and trafficking of narcotics---Appreciation of evidence---Prosecution evidence, was full of contradictions on material points---Signatures on murasila and recovery memo prepared by the complainant, did not tally with each other---Original murasila revealed overwriting on the date mentioned beneath the alleged signatures of the complainant---Prosecution witness had also contradicted the recovery memo---All witnesses were unanimous that the occurrence had taken place in the thickly-populated place---Provisions of S.103, Cr.P.C. were excluded and the association of independent witness was not necessary at the time of search, seizure and arrest---Statement of official witnesses, in circumstances, would be looked into very carefully; and would be scaled with great caution---Mere positive report of Forensic Science Laboratory was not sufficient to bring home guilt of accused---Complainant as well as Investigating Officer had failed to offer any plausible explanation for missing of sample for a long period of 40/41 days; and then its receipt to the chemical analysis in the Laboratory with such delay---Contradictory and paradoxical statements of the prosecution witnesses and the dubious Chemical Examiner's Report, had created serious doubt and dent in the prosecution case---Only a single doubt was sufficient for acquittal of accused---Conviction and sentence of accused by the Trial Court, were set aside and accused were acquitted of the charge and were set free, in circumstances.

Ms. Farhana Marwat for Appellant.

Danyal Chamkani for the State.

Date of hearing: 27th July, 2012.

2013 P Cr. L J 652

[Peshawar]

Before Yahya Afridi, J

ALI FOUZAN---Petitioner

Versus

The STATE and others---Respondents

Jail Criminal Miscellaneous No.217-A of 2012, decided on 5th November, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 35, 367 & 561-A---Penal Code (XLV of 1860), S. 489-F---Sentences for different offences---Concurrent running of sentences---Accused was convicted and sentenced under S.489-F, P.P.C. in different cases and he sought concurrent running of his sentences---Validity---High Court while exercising its inherent jurisdiction under S.561-A, Cr.P.C. might pass orders, in appropriate cases, for sentences awarded to run concurrently and not consecutively---In the present case, three cases were reported by same set of complainants regarding matters arising from commercial transaction relating to timber and were decided on same date by same revisional court---Conviction awarded by revisional court should have been ordered to run consecutively or concurrently--- Such omission of revisional court fell within the mischief of criteria set by High Court---High Court directed that sentences passed by same revisional court on the same date should run concurrently---Petition was allowed accordingly.

Bashir v. State PLD 1991 SC 1145; Nadeem's case 2010 PCr.LJ 1681; Adil's case 2011 PCr.LJ 1687; Ali Akbar Shah's case PLD 2004 Kar. 589; Ahmad Sultan's case 2007 SCMR 1424; Altaf Hussain's case 1987 PCr.LJ 2169; Khan Bahadur's case W.P. No.2534 of 2010 and Abdul Qayyum's case W.P. No.2618-P of 2012 rel.

Ghous Baksh's case 2012 PCr.LJ 1028 and Naik Muhammad's case PLD 2007 Kar. 62 ref.

Sardar Ali Raza for Petitioner.

Ashfaq Haider and Bilal Zaman Kiyani for Respondents.

Date of hearing: 5th November, 2012.

2013 P Cr. L J 666

[Peshawar]

Before Nisar Hussain Khan, J

Mst. NAUSHAD BIBI---Appellant

Versus

SHER KHAN and others---Respondents

Criminal Appeal No. 26-B of 2009, decided on 7th September, 2012.

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

----Ss. 452, 354, 34, 337-F(i) & 337-F(iii)---Criminal Procedure Code (V of 1898), Ss. 403, 417 & 249-A---General Clauses Act (X of 1897), S.26---Constitution of Pakistan, Art. 13---Appeal against acquittal---Double jeopardy, protection against---Scope---Police report case and private complaint case---Magistrate acquitting accused from the police report case under S.249-A, Cr.P.C. on the sole ground that private complaint case was pending disposal in the same court and accused could not be tried twice for the same offence---Legality---Protection against double jeopardy had been provided against double punishment and not the trial of the offence---Had the accused been acquitted in the complaint case, Magistrate would have been justified to acquit the accused in the police report case on the principle of double jeopardy---Since there was no judgment of acquittal or conviction in either of the cases and both were under process of trial in the same court, Magistrate was legally obliged to stop the police report case and proceed with the complaint case---Impugned order of Trial Magistrate offended the principle of double jeopardy and was violative of the provisions of law as well as the Constitution---Appeal against acquittal was allowed, impugned order of Magistrate was set aside and case was remanded to the Trial Court with the direction to stay the police report case and proceed with the private complaint case and decide the same in accordance with the law.

Nur Elahi's case PLD 1966 SC 708 rel.

(b) Constitution of Pakistan---

----Art. 13---Criminal Procedure Code (V of 1898), S. 403---General Clauses Act (X of 1897), S.26---Double jeopardy, protection against---Scope---Protection against double jeopardy had been provided against double punishment and not the trial of the offence.

Qasim Khan Khattak for Appellant.

Abid Anwar for Respondents.

Ahmad Farooq Khattak, A.A.-G. for the State.

Date of hearing: 7th September, 2012.

2013 P Cr. L J 675

[Peshawar]

Before Mrs. Irshad Qaiser, J

SHAH HUSSAIN---Petitioner

Versus

FAHAD and another---Respondents

Criminal Miscellaneous No. 989-P of 2012, decided on 31st August, 2012.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Qatl-e-amd, attempt to commit qatl-e-amd, common intention---Bail, refusal of---Allegation against the accused and co-accused persons was that they fired at and killed the deceased due to blood feud enmity---Accused had been nominated in the F.I.R. with a specific role---Ocular account was supported by medico-legal evidence---Soon after the occurrence accused along with the co-accused persons absconded and they remained absconders for sufficient period of time---Prima facie case existed against the accused in view of the facts of the case---Bail application of accused was dismissed in circumstances.

2011 SCMR 92; 2009 YLR 9; 2010 PCr.LJ 1148; 2009 SCMR 299; 2000 PCr.LJ 195; 2012 SCMR 649; 2012 YLR 1076; 2012 SCMR 556 and 2010 SCMR 1861 ref.

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

----S. 497---Bail---Material to be relied upon---Scope---Courts had to mainly rely upon material brought on record by the prosecution including F.I.R., statement of complainant under S.161, Cr.P.C. as well as incriminating/circumstantial evidence etc. for tentative assessment to assess whether accused was involved in the commission of the offence or not.

Zia ul Haq for Petitioner.

Shakeel Ahmad for the State.

Noor Allam Khan for the Complainant.

Date of hearing: 31st August, 2012.

2013 P Cr. L J 708

[Peshawar]

Before Nisar Hussain Khan and Rooh-ul-Amin Khan, JJ

UMER ZAMAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.21-B of 2010, decided on 5th November, 2012.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 3---Qatl-e-amd---Appreciation of evidence---Sole testimony of minor/child witness---Evidentiary value---Scope---Murder of deceased had not been witnessed by any person---According to the complainant he was informed by his nephew, aged 9/10 years---Travelling of said minor boy in the pitch dark of night from one village to another to inform the complainant was not appealing to prudent mind of a person---Trial Court recorded the statement of said minor boy without any step to judge the level of his intelligence, maturity and capacity of understanding under Art.3 of Qanun-e-Shahdat, 1984---Deposition of said child witness had clearly stipulated that he was not present in the house at the relevant time and had not seen the occurrence and he was not speaking the truth---According to version of said minor witness his mother was stabbed by his father/accused, but the medical evidence had revealed that deceased had died due to single firearm injury on her chest---Injury sheet and inquest report were also silent about the stabbing wound---Minor witness had not shown the presence of his father/accused inside the room---According to the minor when he entered the room he saw his mother lying on the cot in injured condition and after some time she succumbed to her injuries at the spot---Said assertion had revealed that he had not seen accused inside the room---Statement of said child witness, in circumstances, had become highly doubtful and was not truth inspiring---Testimony of minor witness was not corroborated by a single piece of evidence---Medical evidence, recoveries from the spot, recovery of weapon of offence, site plan and arrest of accused, did not furnish the required support---No link existed in the chain of prosecution evidence, which had contradicted each other on material points---No recovery had been effected from the spot, but was proved to have been planted to strengthen the prosecution case---Investigating Officer and the complainant, were also not consistent on the point of alleged recoveries of blood-stained earth, empty shell and pistol---Only the death of the wife of accused by a firearm in his house was not itself, sufficient to establish the guilt of accused, however, death in the house, could be a circumstance to be taken into account along with other prosecution evidence---Prosecution had failed to bring single positive evidence against accused---Motive alleged by the complainant in the F.I.R. was not substantiated by any evidence---Case against accused, being pregnant with serious doubts, accused was entitled to benefit of doubt---In absence of any positive prosecution evidence, accused could not be convicted on presumption---Conviction and sentence awarded to accused were set aside, he was acquitted and set free, in circumstances.

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

----Art. 3---Evidence of child witness---Conviction on statement of child witness---Conviction could be recorded on the sole testimony of a child, provided the same had been consistently corroborated by circumstantial evidence---Great care and caution was to be observed during examination of a child witness, particularly in case of major punishment.

Ulfat Hussain v. The State 2010 SCMR 247 and The State through Advocate-General Sindh v. Farman Hussain and others PLD 1995 SC 1 rel.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---In absence of any direct or substantial evidence, the conviction of a person could not be sustained merely on account of his failure to explain the murder of his wife in his house.

Abdul Majeed v. The State 2011 SCMR 941 rel.

(d) Criminal trial---

----Benefit of doubt---Significance---Prosecution was to prove its case against accused beyond any reasonable doubt; and if any doubt was found in the prosecution case, accused would be held entitled to the benefit thereof---If any element of doubt existed with regard to the guilt of accused, benefit of the same must be extended to him---Rule of benefit of doubt was initially a rule of prudence, which could not be ignored, while dispensing justice in accordance with law; rule was based on a famous maxim 'it was better that ten guilty persons be acquitted rather than one innocent person be convicted"---For acquittal of accused in an offence, howso heinous same could be, only a single doubt in the prosecution evidence was sufficient---Said principle occupied a pivotal place in Islamic law.

Saying of Holy Prophet, PBUH; Ayub Maseh v. The State PLD 2002 SC 1048 and Khalid Mehmood and others v. The State 2011 SCMR 664 rel.

Arif Awan (Pauper Counsel) for Appellant.

Ahmed Farooq A.A.-G. for the State.

Date of hearing: 5th November, 2012.

2013 P Cr. L J 730

[Peshawar]

Before Qaiser Rashid Khan, J

MUHAMMAD AKBAR---Petitioner

Versus

Mst. RUKHSANA BIBI and another---Respondents

Criminal Miscellaneous Bail Petition No.271 of 2012, decided on 21st November, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 376 & 338-A---Rape and Isqat-i-Haml---Bail, grant of---Further inquiry---Accused was arrested on the allegation that he had committed rape with victim girl who got Isqat-i-Haml (abortion)---Validity---Victim or any of her relative did not lodge any complaint to local police in respect of such cruelty perpetrated upon a young girl---Information in respect of abortion would have gone unreported if complainant had not interrogated the victim---All such facts taken in juxtaposition made the case of accused one of further inquiry entitling him to concession of bail---Bail was allowed in circumstances.

Muhammad Karim Anjum Qasuria for Petitioner.

Khan Wali Khan Mahsud, Additional A.-G. for the State.

Muhammad Ismail Alizai for the Complainant.

Date of hearing: 21st November, 2012.

2013 P Cr. L J 742

[Peshawar]

Before Qaiser Rashid Khan, J

MUMTAZ and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Petition No.199 of 2012, decided on 22nd October, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Pakistan Arms Ordinance (XX of 1965), S.13---Explosive Substances Act (VI of 1908), S. 5---Anti-Terrorism Act (XXVII of 1997), S. 7---Terrorism act, recovery of explosives and weapons---Bail, grant of---Proper search warrant was obtained from Magistrate and accordingly raid was conducted by police force led by Deputy Superintendent of Police of the Circle---Search of house led to arrest of accused persons duly armed with Kalashnikovs, who attempted to make good their escape but were overpowered which led to recovery of arms and ammunition along with a hand-grenade---Accused persons had a long history of involvement in criminal cases in respect of which as many as six other F.I.Rs. were also lodged---Although accused persons were convicted in other F.I.Rs. yet those could be kept in view while dealing with bail---Barring S.13 of Pakistan Arms Ordinance, 1965, S.5 of Explosive Substances Act, 1908 and S.7 of Anti-Terrorism Act, 1997, attracted prohibitory limb of S.497, Cr.P.C.---Bail was declined in circumstances.

Muhammad Waheed Anjum and Akhtar Saeed Khan for Petitioners.

Khan Wali Khan Mahsud, Additional A.-G. for the State.

Date of hearing: 22nd October, 2012.

2013 P Cr. L J 753

[Peshawar]

Before Dost Muhammad Khan, C.J.

JEHANZEB and another---Petitioners

Versus

The STATE---Respondent

B.As. Nos. 137-P and 138-P of 2012, decided on 17th February, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Pakistan Arms Ordinance (XX of 1965), Ss. 13 & 14---Possession and smuggling of illegal weapons---Bail, grant of---Accused persons were allegedly smuggling arms and ammunition, hidden in secret cavities of their vehicle---Vehicle of accused persons was intercepted at the border between the tribal and settled area, hence presumption was that arms and ammunition were being smuggled into settled area or in other parts of the country---Offences alleged did not fall within the prohibitory clause of S.497, Cr.P.C. and were bailable, therefore, the court was left with no discretion to refuse bail---High Court observed that default clearly lay with the authorities which had not attended to such grave mischief because in all big cities, target killings and street crimes were committed with the help of such arms; that neither (arms) licensing system had been duly channelized nor the law and rules framed for such purpose were adhered to and strictly followed---High Court directed concerned authorities to look into the matter seriously---Accused persons were allowed bail accordingly.

Nasruminallah for Petitioners.

Muhammad Imran for the State.

Date of hearing: 17th February, 2012.

2013 P Cr. L J 767

[Peshawar]

Before Mrs. Irshad Qaiser and Rooh-ul-Amin Khan, JJ

ABDUL WALI (WALI KHAN) and 3 others---Petitioners

Versus

ABDUR RASHID ARIF and 2 others---Respondents

Writ Petition No.63 of 2010, decided on 12th December, 2012.

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

----S. 369---Review, powers of---Scope---No specific provision for review existed in Criminal Procedure Code, 1898, rather S. 369, Cr.P.C. provides specific bar on review of final judgment passed in criminal case--- Power of review may only be exercised in exceptional cases, where any arithmetical error appears on the surface of record.

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

----Ss.5 & 8---Criminal Procedure Code (V of 1898), Ss.369 & 345---Constitution of Pakistan, Art. 199---Constitutional petition---Alternate remedy---Compromise, implementation of---Respondent filed complaint under Illegal Dispossession Act, 2005, against petitioners and due to compromise between the parties, petitioners were acquitted by Trial Court---Later on, petitioners filed application before Trial Court for summoning respondent and directing him to implement compromise entered before the court---Petitioners filed application for taking legal action against respondent and to punish him in accordance with law, besides directing him to refund the amount to petitioners---Validity---Such application had no legal footing and was violative of S. 369, Cr.P.C.---If any action was taken on the application, the same would amount to review of previous order of acquittal which had not been provided under law---Criminal court was not vested with power to alter, modify, reopen or review the case after final decision---Provisions under Art. 199 of the Constitution could not be invoked, if alternate remedy was available to aggrieved party---Trial Court had rightly dismissed the application filed by petitioners---Constitutional petition was dismissed in circumstances.

(c) Words and phrases---

----"Judgment"---Definition.

Dr. A. Basit, Advocate v. Deputy Registrar (Judicial) and others PLD 2001 SC 1028; Human Rights Case (Environment Pollution in Balochistan) PLD 1994 SC 102 and Muhammad Yusuf and another v. Muhammad Sarfaraz Cheema, Additional District Judge and others PLD 1987 SC 21 rel.

Asghar Ali for Petitioners.

Ghulam Nabi for Respondents.

Date of hearing: 12th December, 2012.

2013 P Cr. L J 800

[Peshawar]

Before Assadullah Khan Chamkani, J

HAZRAT BILAL---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.56 of 2012, decided on 15th October, 2012.

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

----S. 377--- Juvenile Justice System Ordinance (XXII of 2000), S.11(a)---Unnatural offence (sodomy)---Appreciation of evidence---Sodomy committed in a mosque---Heinous and gruesome act---Release of juvenile on probation---Scope---Accused (juvenile) was alleged to have committed sodomy with his victim in a mosque---Trial Court convicted the accused under S.377, P.P.C. and sentenced him to seven years' R.I.---Validity---Four hours delay in lodging of report had been reasonably explained by the complainant (victim), who stated in his report that on arrival to his house, he narrated the incident to his mother, who in turn informed his uncle, therefore, delay in lodging F.I.R. was not exceptional---Fact that victim, who was a boy aged about 7 to 8 years, could make out a false case to involve the accused or he could substitute the accused for someone else, was not believable---Victim did not carry any ill-will, grudge or malice against the accused to falsely implicate him in the case---Complainant (victim) had fully implicated the accused for commission of the unnatural offence---Version of complainant (victim) was further corroborated by medical evidence---Doctor had noted bleeding from the anus of the victim and confirmed that he was sodomized---Doctor had also testified that accused was able to perform sexual acts---Although under S.11(a) of Juvenile Justice System Ordinance, 2000, court had discretion to release a juvenile on probation but in the present case accused-juvenile had committed sodomy in a mosque, which was heinous, scandalous, gruesome and brutal and release of accused on probation would give the public an impression that there was no law to restrain people from commission of such like offences---Conviction and sentence of accused under S.377, P.P.C. was maintained, however fine of Rs. 5,000 was also imposed on him along with the direction to send him to a borstal institution until he attained the age of eighteen or for the period of imprisonment, whichever was earlier---Appeal was dismissed accordingly.

(b) Criminal trial---

----Delay in lodging of report/F.I.R.---Conviction---Effect---Delay in lodging report was not fatal to the prosecution, especially when identity of accused was not doubted and other sufficient evidence on record established guilt of accused.

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

----S. 377---Unnatural offence---Solitary statement of victim---Conviction--- Scope--- Conviction could be based on solitary statement of victim provided same was capable of being relied upon and was corroborated by medical as well as circumstantial evidence.

Mst. Nasreen v. Fayyaz Khan and another PLD 1991 SC 412 and Rana Shabaz Ahmad and 2 others v. The State 2002 SCMR 303 rel.

Fayaz Muhammad Qazi for Appellant.

Akhtar Munir Khan for the Complainant.

Ikram Ullah Khan A.A.-G. for the State.

Date of hearing: 15th October, 2012.

2013 P Cr. L J 820

[Peshawar]

Before Assadullah Khan Chamkani, J

STATE through Muslim Khan---Petitioner

Versus

MUMTAZ ALI---Respondent

Criminal Revision No.38 of 2012, decided on 4th September, 2012.

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

----S. 540---Application for summoning of abandoned witnesses, dismissal of---Abandoned witnesses being summoned at belated stage of trial---Effect---Complainant (petitioner) contended that his previous counsel had abandoned two important prosecution witnesses and now his present counsel had filed an application before Trial Court for summoning said witnesses, which had been dismissed without keeping in sight the provisions of S.540, Cr.P.C.---Validity---Under S.540, Cr.P.C. court had ample powers to summon any witness for just decision of the case and even without any application of the parties but, in the present case, complainant's previous counsel had abandoned two prosecution witnesses and after a delay of about ten months, when statements of all prosecution witnesses were recorded and duly cross-examined by the defence, the complainant had filed present application when the case was ripe, therefore, complainant could not be allowed to examine said witnesses once abandoned by his previous counsel---Order of Trial Court was well reasoned and called for no interference---Revision petition was dismissed, in circumstances.

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

----S. 540---Power of court to summon witnesses---Scope---Under S.540, Cr.P.C. Court had ample powers to summon any witness for just decision of the case and even without any application of the parties.

Sardar Zulfiqar for Petitioner.

Respondent in person.

Date of hearing: 4th September, 2012.

2013 P Cr. L J 843

[Peshawar]

Before Mrs. Irshad Qaiser and Shah Jehan Khan Akhundzada, JJ

INZAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 587 of 2011, decided on 17th December, 2012.

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

----Ss. 6 & 29---Possession of narcotics---Presumption for possession of illicit articles---In case of possession of narcotics drugs, the prosecution had to establish the fact that the narcotics were secured from the possession of accused---Court was required to presume that accused was guilty, unless he proved that he was not in possession of such narcotics---Prosecution was to establish that accused had some direct relationship with the narcotic drugs, or had otherwise dealt with the same---If the prosecution proved the concealment of the articles or physical custody of it, then the burden of proving that accused was not knowingly in possession of the articles was upon him---Knowledge was the essential ingredient of the offence.

Nadir Khan v. The State 1988 SCMR 1899 rel.

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

----S. 9(c)---Qanun-e-Shahadat (10 of 1984), Art. 122---Possession and trafficking of narcotics---Appreciation of evidence---Benefit of doubt---Only allegation against accused was that he was sitting in the rear seat of the vehicle---Case of accused, in circumstances, was distinguishable from the case of the driver and absconding co-accused---Prosecution, in circumstances, was required to produce evidence to prima facie prove that said person was in joint possession; and the vehicle was in his control, or that he had any concern or dealt with the property in any manner, particularly in the case when the narcotic substance was concealed in secret cavities of the car---If there was no evidence that such person knew that charas was concealed in secret cavities, or had knowledge of the said place, so as to attract the provisions of Art.122 of Qanun-e-Shahadat, 1984---If the property was lying open or accused knew the placement of property, the situation would be quite different---Accused had stated that he being a passenger, hired that taxi for taking his wife to the hospital, he produced medical prescription to prove the illness of his wife---Seizing officer and marginal witness had admitted that the driver of the vehicle was not present in the vehicle at the relevant time---Accused did not try to escape from the vehicle and contraband was not visible in the vehicle---Inference, in circumstances could be that contraband substance, either belonged to co-accused who fled away from the Police custody, or the driver who was not present at the relevant time---No efforts were made by the prosecution to get the clue of the driver---Nothing was on record in black and white which could point to the complicity of accused in the crime or to show that accused was in conscious knowledge of the incriminating substance recovered from the secret cavities of the vehicle---Conviction and sentence recorded by the Trial Court, could not be maintained, in circumstances and same were set aside extending accused benefit of doubt---Accused was acquitted of the charge and was set free, in circumstances.

Mst. Jameela and another v. The State PLD 2012 SC 369 rel.

(c) Criminal trial---

----Benefit of doubt---Even a single doubt, if found reasonable, was sufficient to warrant acquittal of accused.

Shahzada v. The State 2010 SCMR 841 rel.

Miss Farhana Marvat for Appellant.

Zakir Hayat for the State.

Date of hearing: 17th December, 2012.

2013 P Cr. L J 864

[Peshawar]

Before Mazhar Alam Khan Miankhel and Assadullah Khan Chamkani, JJ.

REHMAT ZEB---Appellant

Versus

The STATE and others---Respondents

J. Cr. A. No.89 and Murder Reference No.5 of 2012, decided on 5th December, 2012.

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

----Ss. 302(b) & 84---Qatl-e-amd, act of a person of unsound mind---Appreciation of evidence---Death sentence, confirmation of---Belated plea of insanity---Pre-planned occurrence---Promptly lodged F.I.R.---Medical evidence corroborating ocular account---No probability of misidentification or false implication---Recovery of weapon and its empties---Deliberate abscondence by accused with guilty mind---Effect---Accused allegedly fired at and killed his brother and wife as he suspected them of having illicit relations---Trial Court sentenced accused to death under S.302(b), P.P.C.---Contention on behalf of accused was that he was mentally unstable, and that he committed the offence as a result of sudden and grave provocation---Validity---Contention regarding mental condition of accused was neither raised at the time of framing of charge nor at the time of recording of his statement under S.342, Cr.P.C.---No application was submitted by accused in Trial Court to verify his mental condition by way of constitution of a Medical Board, and even to date no proof was brought on record regarding mental condition of accused---Plea of insanity raised by accused at belated stage could not be considered---Record showed that accused entered the house and found his brother sleeping, while his wife was offering her prayers, so there was no reason for accused to act on basis of grave and sudden provocation---Present offence was a pre-planned incident---Report of occurrence was lodged within two hours of the occurrence---Place of occurrence was a far-flung area at a distance of 24 to 25 kilometers from the police station with no appropriate transport facility, therefore, delay in lodging F.I.R. was of no significance---Witnesses were also not cross-examined on the point of delay in lodging F.I.R. and no suggestion was put to them regarding deliberation and consultation---Presence of two of the prosecution witnesses at the place of occurrence seemed to be natural as they were inmates of the house, wherein occurrence took place---Statements of prosecution witnesses were consistent on material points and veracity of their evidence could not be shaken during their cross-examination---Medical evidence showed that injuries on deceased were fire-arm injuries, therefore, medical evidence supported ocular account---Accused was brother-in-law of the complainant/eye-witness, while another eye-witness was his niece, therefore, accused was known to both of them and there was no chance of misidentification---Although two prosecution witnesses were closely related to the deceased and to the accused, and might have been interested witnesses but their testimony got ample support from another prosecution witness, who was father of both deceased and accused---Recovery of empties from place of occurrence coupled with recovery of weapon of offence from the house of accused, corroborated testimony of prosecution witnesses---Blood stained earth was also secured from the place of occurrence by the investigating officer---Nothing was brought on record to establish that accused was falsely implicated---Cause of death was apparent, therefore non-conducting of post-mortem of deceased at the request of his legal heirs, was of no consequence and not fatal to the prosecution case---Immediate abscondence of accused after the occurrence and his non-participation in the funeral ceremony of his deceased brother and wife, tantamount to deliberate abscondence with guilty mind and was another circumstance which established culpability of the accused---Sentence of death imposed by Trail Court was proportionate to the gravity of the offence---Appeal filed by accused was dismissed and death sentence awarded to him by the Trial Court was confirmed.

Sharafat Ali v. The State 1999 SCMR 329 ref.

(b) Criminal trial---

----Interested witness---Scope---One who had an animosity for charging accused falsely was interested witness.

(c) Criminal trial---

----Witness related to deceased---Reliance on testimony of such witness---Scope---Mere relationship of a witness to the deceased was not enough to discard his testimony because such a witness was not necessarily an 'interested witness' in the true sense of the said term.

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

----S. 302(b)---Qatl-e-amd---Cause of death, determination of---Non-conducting of post-mortem report---Effect---When cause of death was apparent, then non-conducting of post-mortem examination was not fatal to the prosecution case.

Sardar Zulfiqar for Appellant.

Muhammad Javed, D.A.-G. for the State.

Date of hearing: 5th December, 2012.

2013 P Cr. L J 886

[Peshawar]

Before Syed Sajjad Hassan Shah and Qaiser Rashid Khan, JJ

MUNAWAR KHAN---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.31 of 2010, decided on 2nd May, 2012.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 337-F(ii) & 353---Qatl-e-amd, attempt to commit qatl-e-amd, causing badi'ah to any person, assault or criminal force to deter public servant from discharging of his duty---Appreciation of evidence---Benefit of doubt---No specific recoveries of empties assigned to accused in the site plan had been made from the spot---Case of the prosecution was not based on the true account and laxity, indifference and neglect stood out as the hallmarks of the entire prosecution version---Statement of injured witness was recorded by the Investigating Officer after two months which itself put the prosecution version doubtful on account of recording of evidence of the star injured witness at such a belated stage---Site plan was doubtful---Important piece of evidence having been withheld by the prosecution had spoken volumes for the conduct of the prosecution---Prosecution had not been able to prove its case against accused beyond any shadow of reasonable doubt---Single circumstance which would create doubt in the mind of a prudent mind, its benefit must be extended in favour of accused---When on the same set of evidence, the co-accused had been acquitted, accused also deserved equal treatment---Impugned judgment of conviction and sentence of accused passed by the Trial Court, were set aside and accused was acquitted of the charges levelled against him, and he was set at liberty, in circumstances.

Burhan Latif Khaisori for Appellant.

Khan Wali Khan Mahsud, Additional A.-G. for the State.

Sh. Iftikharul Haq for the Complainant.

Date of hearing: 2nd May, 2012.

2013 P Cr. L J 907

[Peshawar]

Before Waqar Ahmad Seth, J

SHAHZEB KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.687-A of 2012, decided on 4th January, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324/34---Pakistan Arms Ordinance (XX of 1965), S. 13---Attempt to commit qatl-e-amd, common intention, possession of illegal weapons---Bail, grant of---Further inquiry---Infliction of injury on non-vital part of body---Non-repetition of fire---Case of cross-versions---Negative report of firearm expert---Effect---Accused was alleged to have fired at the complainant, which hit him on his thigh---Only a single fire shot was attributed to accused, hitting complainant on his left thigh, which was a non-vital part of the body---No bone of complainant had been fractured---Accused did not repeat fire even though he had sufficient time and complainant was at his mercy---Question as to whether S.324, P.P.C. could be invoked in such circumstances was a question which could be resolved by the Trial Court after considering the relevant evidence---Accused had recorded a cross-version of the incident with the police---Firearm expert had given a negative report regarding the weapon and empties recovered from the spot--- Case of further inquiry was made out--- Accused was allowed bail in circumstances.

1996 SCMR 1845; 2011 PCr.LJ 1635; 2011 YLR 191 and 2011 YLR 2736 ref.

Khurshid Azhar for Petitioner.

Muhammad Nawaz Khan Swati, A.A.-G. and Malik Khalid for Respondents.

Date of hearing: 4th January, 2013.

2013 P Cr. L J 915

[Peshawar]

Before Dost Muhammad Khan, C.J. and Mrs. Irshad Qaiser, J.

ALI MUHAMMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.631 of 2010, decided on 14th November, 2012.

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

----Ss. 9(c) & 25---Possession of narcotics---Appreciation of evidence---Accused allegedly tried to smuggle 4947 kilograms of charas, which was hidden in the body of a truck--- Accused was the driver of the truck in question---Trial Court convicted and sentenced accused under S.9(c) of Control of Narcotic Substances Act, 1997---Validity---All prosecution witnesses/Anti-Narcotics Force officials demonstrated complete unanimity on all aspects of the case and defence could not point out any material contradiction in their statements---No enmity, ill-will or grudge had been alleged against the prosecution witnesses to falsely implicate the accused---Huge quantity of charas weighing 4947 kilograms could not be thrust upon the accused without any tangible concrete enmity---Non-association of private witnesses did not matter since application of S.103, Cr.P.C. had been excluded under S.25 of Control of Narcotic Substances Act, 1997---Prosecution witnesses being members of the raiding party were natural witnesses and their testimony could not be discarded merely on the ground that they were employees of Anti-Narcotics Force---Report of Forensic Science Laboratory stated that recovered substance was charas--- Accused failed to establish that during the raid he was not driving the truck---Prosecution had been able to prove that at the time of apprehension the truck was under the control of the accused and was sitting on the driving seat---Prosecution had successfully brought home the guilt of the accused---Appeal was dismissed in circumstances.

Fida Jan v. The State 2001 SCMR 36; PLD 1976 SC 67; 2003 SCMR 1237; 2004 SCMR 988; 2004 SCMR 1361; 2010 SCMR 927 and 1988 SCMR 1899 rel.

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

----S. 9---Narcotics recovered during a raid---Officials of Anti-Narcotics Force, evidence of---Scope---Where officials of Anti-Narcotics Force were members of the raiding party, their testimony could not be discarded merely on the ground that they were employees of Anti-Narcotics Force.

PLD 1976 SC 67; 2003 SCMR 1237; 2004 SCMR 988 and 2004 SCMR 1361 rel.

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

----S. 9---Possession of narcotics---Driver of vehicle---Knowledge/ awareness of narcotic lying in vehicle---Scope---Knowledge and awareness of the narcotic would be attributed to the incharge of the vehicle--- Person on the driving seat should be held responsible for the transportation of narcotics having knowledge of the same---Articles lying in the vehicle would be under the control and possession of the driver of the vehicle.

2010 SCMR 927 and 1988 SCMR 1899 rel.

Muhammad Mujeeb Khan for Appellant.

Shakeel Ahmad for the State.

Date of hearing: 14th November, 2012.

2013 P Cr. L J 931

[Peshawar]

Before Syed Sajjad Hassan Shah and Qaiser Rashid Khan, JJ

AMIR---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.3 of 2008, decided on 23rd February, 2012.

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

----S. 302---Pakistan Arms Ordinance (XX of 1965), S.13---Anti-Terrorism Act (XXVII of 1997), S.7---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-e-amd, possessing unlicensed arms, act of terrorism---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Prosecution witnesses who were closely related to the deceased, had contradicted each other on material points---Both of them had disowned their depositions before the police, and whatever one admitted, the other denied---Conflict existed between version of prosecution witnesses, regarding report made by the deceased then injured, whether same was made in the emergency ward or in surgical ward; and the actual physical condition, which had made the prosecution version highly doubtful, the beneficiary of which was none other, but the accused, who was favourite child of law---Medical evidence, was also doubtful as same had belied the eye-witnesses account---Prosecution had come up with different version with regard to recovery of the crime pistol from accused---Fire-arms expert had failed to express his opinion, as to whether or not fire was made from pistol in question---Contradictions in the statement of prosecution witnesses had made immeasurable and incurable dents in the prosecution case---Single circumstance which had created doubt in the mind of prudent person, its benefit must be extended to accused---Impugned judgment of the Trial Court acquitting accused, which was based on correct legal footing, needed no interference and same was upheld, in circumstances.

1994 PCr.LJ 181; 2006 PCr.LJ 387; PLD 1993 Pesh. 109; NLR 1997 Criminal Cases 343; 1997 SCMR 89; 2008 SCMR 688 and 2003 SCMR 522 ref.

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

----S. 417(2-A)---Appeal against acquittal---When an accused was acquitted by a competent court of law after facing the agonies and ordeal of a protracted trial, then he would earn the presumption of double innocence, which could not be disturbed by Appellate Court; unless it was established through cogent and tangible evidence available on record that such acquittal was fanciful, erroneous; or had resulted into grave miscarriage of justice.

2004 SCMR 249; 2009 SCMR 288 and 2009 SCMR 946 rel.

Sanaullah Khan Gandapur for Appellant.

Khan Wali Khan Mahsud, Additional A.-G. for the State.

Khawaja Nawaz Khan for Respondent No.2.

Date of hearing: 23rd February, 2012.

2013 P Cr. L J 950

[Peshawar]

Before Rooh-ul-Amin Khan, J

MUHAMMAD SULTAN and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous B. A. No.647-M of 2012, decided on 26th December, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 310-A, 147 & 149---Giving female in marriage or otherwise in 'swara', rioting, unlawful assembly---Bail, refusal of---Complainant was suspected of having illicit relations with a lady and to this effect, a Jirga was convened, wherein the elders of the locality gave the hand of complainant's sister/victim to a person as 'swara' on the pretext of prevailing custom of the area---Accused and co-accused, who were father and brother of the victim respectively, fully participated in the Jirga and gave away/sacrificed the victim in lieu of threat to complainant's life---Since accused and co-accused participated in the Jirga and were in charge of the victim being her father and brother respectively, therefore, prima facie case under S.310-A, P.P.C. existed against them, which fell under the prohibitory clause of S.497, Cr.P.C.---Bail application of accused and co-accused was dismissed with the observation that handing over a lady, without her consent, in such a humiliating manner was not only against the fundamental right and liberty of human beings, but also against the importance and value of human beings given by Allah to mankind.

Abdul Qayum for Petitioners.

M. Ikram for the Complainant.

Ikramullah Khan, A.A.-G. for the State.

Date of hearing: 26th December, 2012.

2013 P Cr. L J 960

[Peshawar]

Before Qaiser Rashid Khan, J

NASEEB KHAN---Petitioner

Versus

The STATE through Assistant Director FIA, D.I. Khan and another---Respondents

Criminal Miscellaneous B. A. No. 240-D of 2012, decided on 7th November, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 406, 419 & 420---Prevention of Corruption Act (II of 1947), S. 5---Criminal breach of trust, cheating and illegal gratification---Bail, grant of---Further inquiry---Monetary dispute---Complainant alleged that accused had illegally got encashed his cheque from bank---Validity---Statement of accused revealed that he had not denied the receipt of amount but there was some monetary dispute between accused and complainant---Complainant did not agitate the issue pertaining to the matter for over five years till he finally moved application to Federal Investigating Agency---All such factors led the matter to one of further inquiry---Bail was allowed in circumstances.

M. Ismail Alizai and Saifur Rehman for Petitioner.

Kamran Hayat Miankhel for the State.

M. Jehangir Awan and Muhammad Saleem Marwat for the Complainant.

Date of hearing: 7th November, 2012.

2013 P Cr. L J 974

[Peshawar]

Before Yahya Afridi, J.

Syed ABID HUSSAIN SHAH and 9 others---Petitioners

Versus

CHIEF SECRETARY, N.-W.F.P., PESHAWAR and 7 others---Respondents

Writ Petition No.40 of 2010, decided on 1st December, 2011.

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

----S. 25(a)---Voluntary return---Object, purpose and scope---Intricacies and complications involved in 'white collar crime' cannot be dealt with effectively, through traditional methods of inquiry and investigation---Concept of 'voluntary return' has gained significance in investigative techniques used in various jurisdictions.

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

----Preamble---National Accountability Bureau---Functions of the Bureau can be divided into three different categories namely: detection, investigation and prosecution.

(c) Words and phrases---

----"Voluntary"---Meaning.

The Oxford Dictionary and Black's Law Dictionary rel.

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

----S. 25(a)---Voluntary return---Pre-conditions---No duress, coercion or threat to be imposed by any officer of NAB upon the person, who is under 'inquiry', so as to extract commitment of 'voluntary return', stipulated under S. 25 of National Accountability Ordinance, 1999---Voluntary return is simply an 'offer' made by person concerned, which if 'accepted' by NAB would constitute valid contract, the 'consideration' of which is return of illegal gains made by persons to NAB and finally to respective department of government.

Syed Ali Nawaz Shah v. The State PLD 2003 SC 837 rel.

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

----Ss. 18(c) & 25(a)--- Constitution of Pakistan, Art. 199---Constitutional petition---Inquiry and investigation---Voluntary return, notice of---Petitioners were alleged to have committed offence of corruption and corrupt practice and NAB issued notices to them for voluntary return of illegal gains derived by them---Validity---Notices issued by NAB providing opportunity to petitioners to opt for 'voluntary return' were 'intra vires'---Notices served by NAB to petitioners were only an 'offer', if not accepted, could not be thrusted upon petitioners under duress or coercion---National Accountability Bureau was authorized to inquire into or investigate any offence cognizable under National Accountability Ordinance, 1999, if the same was not based on 'mala fide', alien and extraneous considerations---Neither the persons against whom 'mala fide' was alleged were personally named as respondents in petition, nor the facts leading to alleged 'mala fide' apparent on the face of record---Petition was dismissed in circumstances.

Khan Asfandyar Wali Khan and others v. Federation of Pakistan PLD 2001 SC 607 rel.

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

----S. 18(c)--- Constitution of Pakistan, Art. 199--- Constitutional petition---Inquiry and investigation---Interference by High Court---Principle---High Court as Constitutional Court has to refrain from interfering in such proceedings unless there is blatant 'mala fide' on the part of inquiring or investigating authority, which is apparent from record or the same lacks any legal sanction of law.

Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677 rel.

(g) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Mala fides---Proof---Ordinarily, proving 'mala fide' is difficult moreso when it is to be proved from record---Need for recording of evidence comes in and in such eventuality petition cannot proceed in Constitutional jurisdiction---Matter would then have to be resolved and adjudicated by appropriate legal forum of competent jurisdiction.

Iqbal Haider v. Capital Development Authority PLD 2006 SC 394; Government of West Pakistan v. Begum Agha Abdul Karim Shorash Kashmiri PLD 1969 SC 14; Ahmad Hassan v. Government of Punjab 2005 SCMR 186 and Afzal Motors Private Limited v. Higher Education, Archives and Libraries Department PLD 2010 Pesh. 110 rel.

Muhammad Tariq Khan Tanoli for Petitioners.

Ali Jan, Senior Prosecutor, NAB and Muhammad Nawaz Khan Swati, A.A.-G. for Respondents.

Date of hearing: 1st December, 2011.

2013 P Cr. L J 1012

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

RIFAT ULLAH KHAN---Petitioner

Versus

The STATE and 2 others---Respondents

Criminal Miscellaneous Quashment Petition No.2 of 2012, decided on 4th February, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 154---Penal Code (XLV of 1860), S. 496-A---Enticing or taking away or detaining with criminal intent a woman---Quashing of F.I.R. by High Court in exercise of its inherent power---Scope---Plea of accused that contents of F.I.R. were false and frivolous---Validity---Contents of F.I.R. constituted commission of a cognizable offence and for reaching a correct conclusion, proper investigation, enquiry and pro and contra evidence was required to be recorded in the court of competent jurisdiction---Entertainment of a petition under S.561-A, Cr.P.C. in such circumstances for quashing of F.I.R. was unjustified on account of having no substance---Petition for quashing of F.I.R. was dismissed accordingly.

Bashir Ahmad v. Zafer-ul-Islam PLD 2004 SC 298 and Sher Afgan Khan Niazi v. Ali Habib and others 2011 SCMR 1813 rel.

Bahadur Khan Marwat for Petitioner.

Sanaullah Khan Shamim Gandapur, D.A.-G. for the State.

Date of hearing: 4th February, 2013.

2013 P Cr. L J 1028

[Peshawar]

Before Waqar Ahmad Seth, J

SHER RAHMAN and others---Petitioners

Versus

The STATE---Respondent

Criminal Revision No.82-P of 2012, decided on 12th October, 2012.

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

----S. 514---Bail bond, forfeiture of---Reduction in surety amount---Responsibility of surety for appearance of the accused---Scope---Both the petitioners stood surety for accused, who was granted bail---While on bail, accused committed murder of his co-accused and absconded---Bail bonds of Rs.80,000 each submitted by petitioners were forfeited to the extent of Rs.50,000 each---Validity---Record showed that intention of petitioners was clear and they produced accused before the court and trial was under process, when accused committed murder of his co-accused and absconded---Responsibility of petitioners was fulfilled the moment accused started attending the court/trial---Keeping in view the peculiar circumstances of abscondence of accused and the financial status of petitioners, one of whom was a wage labourer and the other a low paid pensioner, the amount of Rs.50,000 seemed to be too harsh---Revision petition was allowed, amount of surety forfeited was reduced from Rs.50,000 each to Rs.10,000 each and petitioners were directed to continue making efforts for production of accused and Trial Court was advised to further half the forfeited amount, if accused was produced in a month's time.

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

----S. 514---Forfeiture of bail bond---Principles---While dealing with cases of sureties who might be in default, a judicial mind was supposed to maintain a balance between undue leniency on one hand, which might lead to abuse of procedure and interference with course of justice, and undue severity on the other, which might lead to unwillingness on part of neighbours and friends to come forward (to stand as sureties)---While maintaining such a balance, courts were required to hold some sort of balance while determining as to what extent a bond was to be forfeited.

Hassan Gul Masood Khalil for Petitioner.

Sabir for the State.

Date of hearing: 12th October, 2012.

2013 P Cr. L J 1071

[Peshawar]

Before Nisar Hussain Khan and Rooh-ul-Amin Khan, JJ

RASHEED AHMED KHAN---Petitioner

Versus

TRIBUNAL F.C.R., PESHAWAR through Chairman and 5 others---Respondents

Writ Petition No.2-B of 2008, decided on 3rd December, 2012.

Constitution of Pakistan---

----Arts. 199, 246 & 247(7)---Penal Code (XLV of 1860), S. 308---Constitutional petition---Maintainability---Diyat amount, enhancement of---Petitioner had prayed that compensation of deceased be enhanced to the tune of the Diyat amount, notified by the Federal Government in the year 2005---Offence in case had been committed in the Federally Administered Tribal Areas---Entire proceedings had been conducted by the Political authorities under Frontier Crimes Regulations, 1901 and case was decided by the Tribunal FCR---Presently, Federally Administered Tribal Areas, in view of their special constitutional status, were excluded from the jurisdiction of the High Court and Supreme Court---Judicial system in the Federally Administered Tribal Areas, hinged on the troika of jirga system, the Political Agent and Frontier Crimes Regulations of 1901---In all criminal and civil disputes, two systems were followed i.e. "Riwaj" and "Sharia"---Political Administration takes cognizance of those offences, which were committed in the Protected Areas and does not generally interfere in the offences occurring between the Tribes in the tribal territory unless State interest was involved---Individual trivial matters were settled by the tribesmen themselves without the aid or assistance of any outside Agency---Proceedings in the civil as well as in criminal cases, always conducted through 'Sarkari Jirgas'---Such type of jirgas consisted of groups of elders designated by the Political Agent or Assistant Political Agent, who were required to give findings about the guilt or innocence of accused in criminal cases or civil disputes---Article 247(7) of Constitution of Pakistan barred the jurisdiction of Supreme Court as well of High Courts in relation to the matters of Tribal Areas, unless Parliament by law otherwise provided---Occurrence in the present case had taken place in the Federally Administered Tribal Area, where the jurisdiction of High Court was not extended and specifically excluded by the Constitution---Jurisdiction of High Court being not extended to FATA, constitutional petition filed by the petitioner being devoid of any merit, was dismissed, in circumstances.

Qaum Bangash and others v. Qaum Turi and others 1991 SCMR 2400 rel.

Salimullah Khan Ranazai and Abdul Aziz Dalokhel for Petitioner.

Sultan Mehmood Khan for Respondents.

Date of hearing: 3rd December, 2012.

2013 P Cr. L J 1122

[Peshawar]

Before Yahya Afridi and Waqar Ahmad Seth, JJ

MUHAMMAD RIAZ and 2 others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No.82-A and Criminal Revision No.29-A of 2009, decided on 6th March, 2013.

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

----Ss. 302(b), 324 & 34---Qatl-e-amd, attempt to commit qatl-e-amd, common intention---Appreciation of evidence---Benefit of doubt---Occurrence took place at the time when there was complete dark in the area---Occurrence having allegedly been witnessed by the complainant and other prosecution witnesses, who were close relatives of the deceased, their testimony was to be looked and adjudged minutely with care and caution---Report which was lodged by the complainant after a considerable delay, seemed to be made after preliminary inquiry, consultation and deliberation---Three ladies were allegedly present inside the house, but none of them had seen the occurrence---None from the neighbours had allegedly seen the occurrence---Complainant, later on introduced existence of electric tube at the time of occurrence, which was strongly negated by Investigating Officer---Nothing was on record that arms and ammunitions recovered at the pointation of accused, were actually owned and possessed by them and used as crime weapon in the commission of offence---Both the prosecution witnesses were found contradicting each other on material aspects of case i.e. crime weapons, source of light, manner and mode of attack---Said witnesses were not found confidence inspiring and trustworthy and could not be believed---Prosecution had failed to prove the motive---Prosecution had suppressed material facts and occurrence was shrouded in mystery and it could safely be concluded that either it was a case of no evidence, or occurrence did not take place in the manner as suggested by the prosecution---Prosecution having failed to prove its case against accused persons beyond any shadow of doubt, they were acquitted extending them benefit of doubt; and released, in circumstances.

Muhammad Arif Baloch and another v. The State and another 2009 SCMR 536; Muhammad Hussain v. The State 2008 SCMR 345 and Ghulam Qadir v. State 2008 SCMR 1221 rel.

(b) Criminal trial---

----Appreciation of evidence---Principles---Prosecution had to prove its case beyond any shadow of doubt---Evidence produced by the prosecution should prove uninterrupted chains to involve accused for commission of offence---If important chains to connect accused in the case were missing, entire prosecution story would be shrouded under the clouds of doubt.

Fazal-e-Haq Abbasi for Appellants.

M. Nawaz Khan Swati for the State.

Shad Muhammad Khan for the Complainant/Respondent No.2.

Date of hearing: 6th March, 2013.

2013 P Cr. L J 1160

[Peshawar]

Before Attaullah Khan, J

GULAB DIN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Petition No.588-P of 2012, decided on 1st June, 2012.

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

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession and trafficking of narcotics---Bail, grant of---Further inquiry---Co-accused already released on bail---Rule of consistency---Applicability---Conscious knowledge of presence of narcotics---Scope---Charas weighing 9645 grams was allegedly recovered from a vehicle which was being driven by the accused---Co-accused had already been granted bail---Mere presence of accused in driving seat did not prima facie, establish his involvement or his conscious knowledge regarding presence of narcotics---Case was one of further inquiry---Accused was released on bail in circumstances.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S. 9---Bail---Narcotics recovered from vehicle being driven by the accused---Conscious knowledge of accused regarding presence of narcotics---Scope---Mere presence of accused in the driving seat of the vehicle would not prima facie, establish his involvement or his conscious knowledge regarding presence of narcotics.

Noor Alam Khan for Petitioner.

Sarfaraz Khan for the State.

Date of hearing: 1st June, 2012.

2013 P Cr. L J 1181

[Peshawar]

Before Khalid Mehmood, J

UMAR FAROOQ, ASSISTANT PROFESSOR BOTANY ---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.117 of 2012, decided on 17th December, 2012.

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---Appreciation of evidence---Sentence, reduction in---Embezzlement of government funds---Embezzled amount returned/deposited back in the government exchequer---Effect---Deprivation of pensionary benefits due to conviction as a ground for reduction in sentence---Scope---Accused, who was a professor at a Government College, allegedly embezzled college funds---Trial Court convicted accused under S.409, P.P.C. and sentenced him to 4 years' imprisonment with a fine of Rs.100,000---Accused was also convicted under S.5(2) of the Prevention of Corruption Act, 1947 and sentenced to 2 years imprisonment with a fine of Rs. 50,000---Validity---Accused submitted an affidavit during investigation wherein he admitted commission of the offence---During course of investigation accused deposited the embezzled amount---Case record coupled with the audit report confirmed embezzlement committed by the accused---All prosecution witnesses were dis-interested witnesses having no enmity to falsely implicate the accused---Prosecution had proved its case beyond any shadow of doubt---Accused was serving in the education department for the last about 30 years and was at the verge of his retirement and due to his conviction in the present case, he had lost his pensionary benefits---Additional punishment in the shape of depriving accused from pensionary benefits due to his conviction was a ground which demanded reduction of punishment awarded to him---Accused remained in jail for more than four months---Sentence of accused under S.409, P.P.C was reduced to 1 year's imprisonment with fine, while that under S.5(2) of the Prevention of Corruption Act, 1947 was also reduced to 1 year's imprisonment with fine---Appeal was allowed accordingly.

Saeed Zakaria v. The State and another 1972 SCMR 118; M. Habibullah v. The State PLD 1985 Kar. 680; Muhammad Iqbal and another v. The State 1985 PCr.LJ 2774 and Muhammad Akram v. The State 1988 PCr.LJ 392 rel.

Shad Muhammad Khan for Appellant.

M. Nawaz Khan Swati and Ashfaq Haider for the State.

Date of hearing: 17th December, 2012.

2013 P Cr. L J 1234

[Peshawar]

Before Qaiser Rashid Khan, J

ABDUL MAJEED---Petitioner

Versus

The STATE and another---Respondents

Bail Petition No.17 of 2013, decided on 28th February, 2013.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 404 & 34---Qatl-e-amd, dishonestly receiving stolen property, common intention---Bail, refusal of---Accused and co-accused were alleged to have murdered the deceased due to a matrimonial dispute---Accused was directly charged in the F.I.R. for firing at the deceased with his weapon---Occurrence took place at a spot, which was visible from the place where the complainant was present, therefore occurrence could not be termed as an unseen occurrence---Version of complainant was supported by medical evidence and recovery of empties from the place attributed to the accused on the site plan---Strong motive existed for commission of the offence---Offence with which accused was charged carried capital punishment---Bail petition of accused was dismissed in circumstances.

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

----S. 497---Bail sought on medical grounds---Laryngeal and pharyngeal disability---Plea that because of such disability accused faced problems with his conversation---Validity---Disability of accused was laryngeal and pharyngeal in nature, which caused him problems in his conversation---Such disability was not in the strict sense a disability which made the accused incapable of attending to his own needs and ordinary chores---Accused was refused bail accordingly.

Sanaullah Khan Gandapur and H. Ghulam Muhammad Sappal for Petitioner.

Khan Wali Khan Mahsud, Additional A.-G. for the State.

Saifur Rahman Khan for the Complainant.

Date of hearing: 28th February, 2013.

2013 P Cr. L J 1277

[Peshawar]

Before Khalid Mehmood, J

Mst. SAIMA---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Petition No.88-P of 2013, decided on 22nd February, 2013.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotics---Bail, grant of---Female accused with suckling babies---Welfare of minors---Scope---Accused-lady was allegedly found in possession of 8 kilograms of narcotic---Although police had prior information about trafficking of narcotics through females, therefore, it was morally incumbent upon the police to have arranged for a female constable to search the accused, however same was not done--- Accused had two suckling babies, who were also in jail, hence suffering of innocent babies could not be ignored---Welfare of minors was the prime consideration--- Accused was also not likely to get maximum punishment for the offence because the quantum of sentence had to commensurate with the quantum of narcotic substance recovered---No evidence was available on record to show that accused was a previous convict or was involved in cases similar to the present one---Accused was released on bail in circumstances.

Mst. Nusrat v. The State 1996 SCMR 973 rel.

Noor Alam Khan for Petitioner.

Muhammad Shafiq for the State.

Date of hearing: 22nd February, 2013.

2013 P Cr. L J 1318

[Peshawar]

Before Assadullah Khan Chamkani, J

GUL KHAN---Petitioner

Versus

ASGHAR KHAN and another---Respondents

Criminal Miscellaneous Bail Application No.139 of 2012, decided on 16th August, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 34---Qatl-e-amd, attempt to commit qatl-e-amd, common intention---Bail, grant of---Further inquiry---Plea of alibi---Accused and co-accused persons were alleged to have fired at the complainant and his brother, which resulted in the latter's death, while the complainant escaped unhurt---Motive for the alleged occurrence was previous blood feud between the parties---Contents of F.I.R. showed that accused was armed with .30 pistol and made indiscriminate firing but no empties of said bore pistol were recovered from the place, where accused was shown to be present on the site plan---Post mortem report and recovery memo suggested that only Kalashnikov and shot gun had been used in the commission of the crime---Complainant and his deceased brother were at a very short distance from each other at the time of occurrence, but complainant did not receive any bullet or pellet injury---Strangely Trial Court had considered and allowed plea of alibi in case of co-accused but did not do the same in case of the accused, despite the fact that both of them were placed in column No.2 of the challan---No prohibition existed in law for granting bail on plea of alibi---Plea of alibi taken by accused did not appear to be an afterthought and same was taken on the first day when he surrendered before the court---Case against accused was one of further inquiry, clearly falling under S.497(2), Cr.P.C.---Accused was granted bail, in circumstances.

2007 YLR 2209; 2008 SCMR 122 and 2011 SCMR 945 ref.

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

----S. 173---Accused placed in column No.2 of challan---Effect---Once an accused had been declared innocent during the course of investigation and was placed in column No. 2, then he was no more an accused person nor he could be treated so unless and until after submission of challan the Trial Court took cognizance and summoned him for trial.

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

----S. 497---Bail---Assessment of evidence---Scope---Section 497, Cr.P.C. did not contain any restrictions on court's power to assess evidentiary value of material placed before it---Court, however, had to refrain, directly or indirectly, from giving any conclusive finding on question of guilt or innocence of accused.

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

----Ss. 497 & 498---Bail---Plea of alibi, examination of---Scope---Plea of alibi like any other defence plea taken at bail stage was essentially required to be examined by the court with a degree of care and caution---No prohibition existed in law for granting bail on plea of alibi---Assessment of material in support of plea of alibi must be tentative in nature as deeper appraisal would prejudice the case of one party or the other before the Trial Court.

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

----Ss. 497, 498---Bail---Plea of alibi---Scope---No prohibition in law to grant bail on such plea.

Muhammad Arif Khan for Petitioner.

Imran Advocate Supreme Court, Syed Fakhar-ud-Din Shah for the State.

Date of hearing: 16th August, 2012.

2013 P Cr. L J 1374

[Peshawar]

Before Dost Muhammad Khan, C.J. and Mrs. Irshad Qaiser, J

HAFTAY KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.971 of 2010, decided on 13th March, 2013.

(a) Criminal trial---

----Defence plea---Onus to prove---Principle---When accused at criminal trial takes specific plea, onus invariably shifts and he is required to produce evidence and prove his innocence or at least his plea should be supported by attending circumstances and it should not be unfounded altogether.

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

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S.103---Recovery of narcotics---Appreciation of evidence---Recovery proceedings---Police witnesses---Charas weighing 20 kilogram was recovered from truck being driven by accused and he was sentenced to imprisonment for life---Plea raised by accused was that during recovery proceedings, no witness from public was associated and only police officials were witnesses---Validity---Non-compliance of S.103, Cr.P.C. could not be considered as strong ground for holding that trial of accused was bad in the eye of law---Police officials were competent witnesses and their statement could not be discarded merely for the reason that they belonged to police department---Accused was involved in the offence and conclusion drawn and reasons advanced by Trial Court showed fair evaluation of evidence which was in accordance with settled principles of criminal justice---High Court did not find any illegality or infirmity in judgment warranting interference, and sentence was maintained--- Appeal was dismissed in circumstances.

2001 SCMR 36; PLD 2004 Pesh. 246 and 2010 SCMR 1962 rel.

Miss Farhana Marwat for Appellant.

Jawad Khan for the State.

Date of hearing: 13th March, 2013.

2013 P Cr. L J 1391

[Peshawar]

Before Lal Jan Khattak, J

ABDUL AHAD---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Quashment Petition No.74-D of 2013, decided on 22nd April, 2013.

Criminal Procedure Code (V of 1898)---

----S. 561-A & Preamble---Khyber Pakhtunkhwa Prevention of Gambling Ordinance (V of 1978), Ss. 5, 6 & 8---Gaming at a public place and at private places---Quashing of F.I.R.---Power to enter and search---Contention of accused was that Station House Officer of Police Station had no authority to register case when according to S.8 of the Khyber Pakhtunkhwa Prevention of Gambling Ordinance, 1978, authority to enter upon gambling house had been conferred upon the District Magistrate, Sub-Divisional Magistrate or Magistrate First Class and that entry into such house by the Station House Officer was nothing but departure from the law---Validity---When law had laid down that an act was to be done in a particular manner, then same must be done in that manner and not otherwise---Petition was allowed and F.I.R. was declared ab initio void being without lawful authority and without jurisdiction.

PLD 2003 Pesh. 77 rel.

Syed Tehsin Alamdar for Petitioner.

Sanaullah Khan Shamim Gandapur, D.A.-G. for the State.

Date of hearing: 22nd April, 2013.

2013 P Cr. L J 1437

[Peshawar]

Before Qaiser Rashid Khan, J

KHAN FAROSH and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.46-M of 2012, decided on 19th February. 2013.

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

----S. 497---Penal Code (XLV of 1860), S. 302/34---Qatl-e-anal, common intention---Bail, refusal of---Case of cross-version F.I.Rs.---Allegation against accused persons was that they dragged the deceased to their house and thereafter committed his murder by firing at him---Version of complainant found support from the recovery of dead body of deceased from house of accused persons; from the multiple bullet wounds on the body of deceased; from the recovery of empties from the spot coupled with recovery of weapon of offence on the pointation of accused persons, and from the medical report and site plan---Tentative assessment of the evidence available on record, prima facie, connected accused persons with the commission of the offence, which entailed capital punishment---Courts were not bound to consider every cross case for grant of bail---Bail petition of accused persons was dismissed in circumstances.

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

----Ss. 497 & 154---Bail---Case of cross-version F.I.Rs.---Plea that case was one of further inquiry due to cross-version F.I.Rs., therefore accused should be granted bail---Validity---Courts were not bound to consider every cross case to be a fit case for further inquiry and to grant bail to accused, as only tentative assessment of evidence was permissible at bail stage.

Arif Din v. Amil Khan and others 2005 SCMR 1402 rel.

Sabir Shah for Petitioners.

Amir Shahzad for the Complainant.

Ikramullah Khan, A.A.G. for the State.

Date of hearing: 19th February, 2013.

2013 P Cr. L J 1490

[Peshawar]

Before Roohul Amin Khan and Malik Manzoor Hussain, JJ

MEEM BAHADAR---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.905 and Criminal Revision of 207 of 2010, decided on 27th March, 2013.

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

----S. 302(c)---Qatl-e-amd---Appreciation of evidence---Incident was a daylight occurrence in which accused was singularly charged for the murder of the deceased---Both parties being well-known to each other, possibility of mistaken identity was to be ruled out and false implication of an innocent person for the real culprit was a rare phenomenon---Altercation took place between the deceased and accused two days prior to the incident---No evidence was available suggesting any previous enmity between accused and eye-witnesses; question of false implication of accused did not arise---Complainant being eye-witness had furnished the natural and true account of the tragedy, and his version was fully corroborated by other eye-witness---Both complainant and said other eye-witness, were consistent with each other on each and every material particular of the incident; they had fully established their presence at the crime spot at the time of incident---Both said witnesses were subjected to lengthy and comb searching cross-examination by the defence, but nothing beneficial could be extracted from them---Defence had failed to bring out any thing material to prove that said witnesses were arranged witnesses or having any previous motive to falsely implicate accused---Mere fact that both of then were related to the deceased, would not be sufficient to discard their testimony; and to exonerate accused front the charge of murder---Statements of said witnesses inspired confidence---Alleged contradictory statements of the prosecution witnesses regarding the time of their arrival to the Police Station could not be termed as contradictory, but was a minor discrepancy, not fatal to discard the straightforward and confidence-inspiring testimony of said witnesses, which had no inherent infirmity, casting doubt on its veracity---Accused remained fugitive from law for more than 3 years, after passage of such a long period, minor discrepancies, could occur in the statements of prosecution witnesses, and accused could not get premium thereof---Besides ocular account, prosecution case, got support from circumstantial evidence in the shape of recovery of blood-stained earth, last worn clothes of the deceased and rope, which according to Serologist report had human blood of the same group---Abscondence of accused had corroborated the prosecution version---Motive as alleged by the complainant, had been established through cogent, coherent and confidence-inspiring evidence---Accused, no doubt at the time of commission of offence was a juvenile, but at the time of arrest and conclusion of his trial and passing of impugned judgment of conviction, had attained the age of 19/20 years---Trial Court had properly appreciated entire evidence on record and had reached a right conclusion to which no exception could be taken---In absence of any infirmity in the impugned judgment and any misreading or non-reading of evidence, same could not be interfered with---Accused being a juvenile, Trial Court had rightly awarded the sentence, to which no exception could be taken.

Muhammad Iqbal v. The State PLD 2001 SC 222 rel:

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

----S. 302(b)---Qatl-e-anzd---Appreciation of evidence---Credibility of a witness---Interested witness---Testimony of a witness was always gauged from reading his entire statement in juxtaposition with the circumstantial evidence---If, the evidence had found corroboration from circumstantial evidence, it must be termed as confidence-inspiring and trustworthy---Credibility of a witness, depended upon the intrinsic value of his statement furnished by him-No universal principle existed in criminal administration of justice, that in every criminal case, the relatives of the deceased would be held as interested witnesses; and their testimony would be disbelieved; it all would depend upon the rule of prudence, and reasons to hold that a particular witness was present at the scene of occurrence; and that he was making a true statement---If a witness being the close relative of the deceased, furnished a true account of the occurrence, and established his presence at the spot at the time of occurrence, it would not be enough to discredit his testimony on mere reason of his close relationship with the deceased.

(c) Criminal trial---

---Evidence of witnesses---Discrepancies occurring on account of lapse of memory---Some discrepancies were inevitably bound to occur on account of lapse of memory owing to the intervening period---Where thoroughly drilled and well tutored witnesses after going through several rehearsals made statements, which were almost verbatim repetition of their Police statements, as well as those of each other at the trial and the courts had been very rightly skeptical about each parrot-like reproductions---Only material discrepancies coming into conflict with the natural probabilities would militate against the credibility of witnesses justifying the rejection of their testimony---Minor and cosmetic discrepancies in the statements of the prosecution witnesses were always expected and ignorable, which did occur with the passage of time---Such discrepancies were the inbuilt proof of the truthfulness of the witnesses which would show their straightforwardness; and that they were giving their statements without being tutored---Such contradictions, which totally would negate the basic fabric of the prosecution story were considered vital, benefit of which was always extended to accused, not as a matter of grace or concession, but as a matter of right.

Abdur Rashid v. Umid Ali and 2 others PLD 1975 SC 227 rel.

(d) Criminal trial---

----Abscondence of accused---No doubt, abscondence of accused, itself was not sufficient to prove the guilt of absconder, but it could provide corroboration to the other evidence, and circumstances of the case proving his guilty conscious---Abscondence of an accused, would be taken as a corroborative piece of evidence in presence of convincing and unchallenged prosecution evidence.

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

----S. 11---Release on probation---Mere minority or juvenile ship of an accused, was not the criteria for grant of relief of release on probation under S.11 of Juvenile Justice System Ordinance, 2000---In matter of conviction, there could be some minor offences, in which, the sentence could be normally short, and if the court passed an order of conviction, beneficial provision could be exercised in his favour---If accused was charged for an heinous offence of murder, and sentenced to life imprisonment, his case could not be treated at par with minor offences---Age type and seriousness of the offence, and past record of criminal activities of accused, at the time of conviction, would also be a relevant factor, which would also be adhered to---Juvenile Justice System, which was certainly meant to treat a child accused with care and sensitivity, no doubt, offering him a chance to reform and settle into the mainstream of society, but same could not be allowed to be used as a ploy to dupe the cause of justice, while conducting trial and treatment of heinous offences---Court must be sensitive in dealing with the juveniles who were involved in cases of serious nature like, murder, gang rape, terrorism, sexual molestation and host of other offences---Minor/juvenile accused could never be allowed to abuse the statutory protection and concession rather involvement in a flagitious crime, must be meted out stringent punishment to discourage the involvement of minors by the people for settling their score through them (Juveniles).

Barrister M. Zahoor-ul-Haq for Appellant.

Mehmooda Gul for the State.

Abdur Rashid Pirzada for the Complainant.

Date of hearing: 27th March, 2013.

2013 P Cr. L J 1525

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

FAISAL MUNIR---Petitioner

Versus

The STATE through Latif Khan ASI Choki Mayar---Respondent

Criminal Miscellaneous No. 530-P of 2013, decided on 8th May, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 21, 22 & 25---Police Order (22 of 2002), Art. 18(4)---Possession of narcotic, mode of making search and arrest---Bail, grant of---Further inquiry---Police officer below the rank of Sub-Inspector carrying out search, seizure, arrest and investigation proceedings---Non-availability of chemical examination report of samples---Effect---Accused was allegedly found in possession of 1750 grams of charas and 10 grams of heroin---Assistant Sub-Inspector (ASI), who was below the rank of Sub-Inspector, arrested the accused and allegedly recovered charas and heroin from his possession---Material investigation in the case in the shape of seizure, weighing of narcotic, packing and sealing of narcotic into a parcel, separation of some quantity of narcotic for analysis through Forensic Science Laboratory, had been carried out by the Assistant Sub-Inspector (ASI)---Entire action taken by the Assistant Sub-Inspector (ASI) by way of registration of case and its investigation from its inception to the end was violative of the Control of Narcotic Substances Act, 1997 and Police Order, 2002---Report of Forensic Science Laboratory regarding samples of recovered narcotic had not been received as yet, therefore, case against accused required further probe---Accused was granted bail in circumstances.

PLD 2001 Pesh. 152 rel.

Shah Jehan for Petitioner.

Akhtar Naveed Dy. A.-G. for the State.

Date of hearing: 8th May, 2013.

2013 P Cr. L J 1549

[Peshawar]

Before Shah Jehan Khan Yousafzai, J

MUHAMMAD KAMRAN SOHAIL---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Application No.676 of 2010, decided on 1st June, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Emigration Ordinance (XVIII of 1979), Ss.17, 18-B, 22-A & 22-B---Penal Code (XLV of 1860), Ss.162 & 163---Sending people abroad through fake visa, public servant taking gratification in respect of an official act, and taking gratification for exercise of personal influence with public servant---Bail, refusal of---Accused who had established a firm which deprived at least thirteen poor persons at the pretence of providing them better job abroad, where they would be provided food, maintenance and dwelling etc. in addition to handsome salary---Said persons, who were in the search of service, arranged for huge amount of Rs.3 lac each and paid to accused, who arranged their travel abroad through fake visas, and those persons were apprehended and deported from the Airport---Law against accused provided punishment in the shape of substantive imprisonment upto fourteen years, or fine or both, depending upon the merits of the case---Amount received by accused from said thirteen affectees, had not been returned to them, and it would be inconvenient for them to recover said amount from the accused who was posing himself as Managing Director of a registered firm---Prima facie, it was not a fit case for grant of bail---Bail petition of accused, was rejected, in circumstances.

PLD 1993 Pesh. 104; 2009 SCMR 734; 2001 PCr.LJ 588; 2002 SCMR 1380 and 2008 PCr.LJ 1253 ref.

Khan Muhammad Khan Gara for Petitioner.

Muhammad Iqbal Khan Mehmand, D.A.-G. and Arshad Hussain Yousafzai for the State.

Date of hearing: 1st June, 2010.

2013 P Cr. L J 1607

[Peshawar]

Before Assadullah Khan Chamkani and Mrs. Irshad Qaiser, JJ

Syed ANWAR BADSHAH---Appellant

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY COURT, ISLAMABAD and 2 others---Respondents

Ehtesab Criminal Appeals Nos.4 and 6 of 2004, decided on 1st March, 2013.

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

----S. 32---Appeal---Maintainability---When appeal has been filed without required direction/approval of the Chairman NAB, such appeal filed by State is not competent.

Ehtesab Criminal Appeal No.13 of 2003 decided on 24-1-2003; State through PGA v. Haji Fazal-ur-Rehman's case Ehtesab Criminal Appeal No. 7 of 2003 and Criminal Petition No.55/P of 2006 dated 8-4-2009 rel.

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

----S. 17---Criminal Procedure Code (V of 1898), S. 265-F(4)---Defence evidence, reliance upon---Principle---In absence of prosecution evidence, weight has to be given to statements of defence witnesses.

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

----S. 9(a)(v)---Assets beyond known sources of income---Appreciation of evidence---Sources of income---Proof---Accused was convicted for offence of corruption and corrupt practices by acquiring assets beyond known sources of income---Validity---Sources of income of accused had never been enlisted, determined or quantified by prosecution either during investigation of case or during trial---In order to prove commission of offence under S.9(a)(v) of National Accountability Ordinance, 1999, it had to be proved by prosecution as to what were the known sources of income of accused at relevant time and that resources or property of accused were disproportionate to his known sources of income---Mere possession of any pecuniary resource or property was by itself not offence but it was failure to satisfactorily account for such possession of pecuniary resource or property that would make the possession objectionable and constituted relevant offence---Prosecution did not produce any evidence worth its name before Trial Court to establish any misuse of his authority by accused so as to develop and establish any nexus between misuse of his authority and amassing of wealth or accommodation of assets by him---In absence of such evidence brought on record by prosecution, charge as framed against accused was not established by prosecution---High Court set aside conviction and sentence awarded to accused and he was acquitted of the charge---Appeal was allowed in circumstances.

2001 SCMR 138; PLD 2004 Lah. 155; 2001 MLD 910 ref.

Mst. Zahida Sattar and others v. Federation of Pakistan and others PLD 2002 SC 408 and PLD 2002 Pesh. 1181 rel.

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

----S. 14(c)---Acquiring assets beyond known sources of income---Presumption---Shifting of onus to prove---Principle---Prosecution has to establish four ingredients mentioned in S.14(c) of National Accountability Ordinance, 1999, and then burden shifts upon accused to explain his position as required under S.14(c) of National Accountability Ordinance, 1999.

Khalid Aziz v. State 2011 SCMR 136; 2007 MLD 910; Muhammad Hashim Baber v. The State and another 2010 SCMR 1697 and PLD 2004 Lah. 155 rel.

Syed Muhammad Ilyas for Appellant.

Shaukat Ali, ADPG for NAB.

Date of hearing: 1st March, 2013.

2013 P Cr. L J 1633

[Peshawar]

Before Nisar Hussain Khan and Akramullah Khan, JJ

MUHAMMAD SHAKOOR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.536 of 2010, decided on 14th May, 2013.

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

----Ss. 34, 35 & 36---Government Analyst---Scope---Chemical Examiner or Assistant Chemical Examiner both when notified under Ss.34 & 35 of Control of Narcotic Substances Act, 1997, are considered to be Government Analyst as defined under S.36 of Control of Narcotic Substances Act, 1997.

Shah Faisal v. The State PLD 2009 Quetta 40; 2001 PCr.LJ 879 and Criminal Appeal No.290 of 2011 decided on 27th March, 2013 rel.

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

----S. 9---Control of Narcotic Substances (Government Analyts) Rules, 2001, Rr. 4 & 5---Sending narcotic substance to laboratory---Non-compliance of rules---Effect---Provisions of Rules 4 & 5 of Government Analyst Rules, 2000, are directory in nature and in some particular circumstances and in so far as accused is not specifically caused prejudice, non-compliance of Rules 4 and 5 of Control of Narcotic Substances (Government Analyts) Rules, 2001, does not vitiate trial at all.

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

----S. 29---Recovery of narcotic substance---Presumption---Onus, shifting of---Firstly prosecution has to establish the fact that narcotic drugs were recovered from the possession of accused---If prosecution proves recovery of contraband from constructive custody of accused, then burden of proof lies on accused to prove that contraband recovered was not in his conscious knowledge.

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

----Ss. 9(c) & 29---Narcotic substance, recovery of---Appreciation of evidence---Conscious knowledge---Proof---Shifting of onus to prove---Charas Garda weighing 159.2 kilogram was recovered from secret cavities of car in use of both the accused persons---Trial Court convicted the accused and sentenced them to imprisonment for life---Validity---Both the accused were in the exclusive possession of car, whereof narcotic drugs were recovered, presumption to be that the narcotics concealed in secret cavities of the car was in their knowledge and as such both the accused were said to be in conscious possession of narcotics, otherwise they must prove that they were ignorant of contraband---High Court did not find any infirmity in judgment passed by Trial Court resultantly conviction and sentence was maintained---Appeal was dismissed in circumstances.

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

----S. 25---Criminal Procedure Code (V of 1898), S. 103---Recovery proceedings---Scope---Operation and applicability of S.103, Cr.P.C. in respect of all kinds of searches, purportedly done and effected under special law, had been excluded under S.25 of Control of Narcotic Substances Act, 1997.

2009 SCMR 306 and 2011 PCr.LJ 398 rel.

Farhana Marwat for Appellant.

Said Rehman for the State.

Date of hearing: 14th May, 2013.

2013 P Cr. L J 1706

[Peshawar]

Before Abdul Latif Khan, J

ROZI KHAN---Petitioner

Versus

The STATE and 5 others---Respondents

Criminal Miscellaneous Bail Petition No.152 of 2013, decided on 24th June, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Bail, refusal of---Accused had committed murder of his wife and another person who allegedly had illicit relations with his deceased wife---Facts of the case had shown that accused had preplanned the killing of both deceased---Plea of counsel for accused that offence against accused fell under S.302(c), P.P.C., had no force, as no one could be permitted to take law in his own hands; and start executing the culprits instead of handing over them to the courts of law---Even otherwise, killing of a woman on the ground of 'Siah Kari' was unIslamic and un-constitutional, and offence against the State and society---Accused himself surrendered to the Local Police after commission of offence---Cause of death of the deceased by firing with Kalashnikov or .12 bore shotgun, was a fact to be seen at the trial with special reference to the place and distance shown in the site plan---At that juncture, no deep appreciation of evidence, could be made---Tentative assessment of the available record had suggested that no case was made out for the grant of concession of bail to accused---Bail petition of accused being bereft of any merit, was dismissed, in circumstances.

Khadim Hussain and another v. The State PLD 2012 Bal. 179 and Muhammad Akram Khan v. the State PLD 2001 SC 96 rel.

Saifur Rahman Khan for Petitioner.

Jahanzeb Ahmed Chughtai for the State.

Sh. Inamullah for Respondent No.2.

Ghulam Hur Khan Baloch for Respondent No.4.

Date of hearing: 24th June, 2013.

2013 P Cr. L J 1727

[Peshawar]

Before Lal Jan Khattak, J

KARAM ELAHI---Petitioner

Versus

The STATE and 2 others---Respondents

Criminal Miscellaneous Quashment Petition No.89 of 2013, decided on 10th June, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 204---Penal Code (XLV of 1860), S.489-F---Emigration Ordinance (XVIII of 1979), Ss.17, 18 & 22-B---Dishonestly issuing a cheque, fraudulently inducing a person for emigration to a foreign country, and receiving amount from him---Petition for quashing of F.I.R.---Petitioner/accused was fugitive from law, non-bailable warrants of arrest were issued against him, but he avoided his lawful arrest---Contention of accused, was that there was no express provision, or bar in the Code of Criminal Procedure, which bound down a person seeking justice under the inherent powers of the High Court under S.561-A, Cr.P.C. to appear in person---Validity---Competent court of law had issued warrants of arrest against accused for his appearance, but he avoided his lawful arrest; in such-like situation, if petition for quashing of F.I.R. filed by fugitive accused was entertained for its decision on merits, without surrender of accused in obedience to the warrants under S.204, Cr.P.C., then it would tantamount to abuse of process of the court; as a person who fled or escaped from law, would lose some of his normal rights available to him under the law---Petition for quashing F.I.R. filed by accused, could not be entertained for he being fugitive from law---Petition was dismissed.

1993 SCMR 1873; 1995 PCr.LJ 1672 and Criminal Miscellaneous No.78 of 2011 distinguished.

PLD 1956 FC 43; 1999 SCMR 1619; PLD 2002 Lah. 74 and 1999 PCr.LJ 1381 rel.

Burhan Latif Khaisori for Petitioner.

Kamran Hayat Miankhel, Federal Standing Counsel for Respondent No.2.

Muhammad Anwar Awan for Respondent No.3.

Date of hearing: 10th June, 2013.

2013 P Cr. L J 1773

[Peshawar]

Before Waqar Ahmad Seth and Musarrat Hilali, JJ

GUL MAT SHAH---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos.496-P and 463-P of 2012, decided on 19th June, 2013.

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

----S. 9(b) & (c)---Possessing and trafficking of narcotic---Appreciation of evidence---Sentence, reduction in---Allegedly 4350 Kgs. charas in the shape of packets, was recovered from the secret cavities of Tanker---Small quantity from each packet, was separated and mixed together; out of the mixture, three samples, each weighing 10 grams, were separated of which one sample was sent to Forensic Science Laboratory for chemical analysis---Record was silent about the number of Packets recovered from the tanker---Weight of said packets was also not known---Prosecution, under the law was under obligation to have first weighed every packet; and then separate a small quantity from each packet; properly sealed and mark them for chemical analysis---Conviction of accused would then be based, subject to the report of Forensic Science Laboratory---Said legal requirements, had not been complied with in the present case---Sample sent to Forensic Science Laboratory for analysis could not be said to be a representative sample in circumstances---Sentence awarded to accused, was bad in law, as only one sample of 10 grams was sent for chemical analysis, and the report thereof was received as positive---Accused, in circumstances, were liable to be held responsible only for 10 grams charas, the offence whereof fell within the ambit of S.9(b) of Control of Narcotic Substances Act, 1997, and not under S.9(c) of Act---While converting S.9(c) of Control of Narcotic Substances Act, 1997 into S.9(b), thereof, sentence of accused was reduced to the one already undergone by them---Fine amount was also reduced from Rs.1,00,000 to Rs.10,000.

Ameer Zeb v. The State PLD 2012 SC 380 ref.

Ameer Zeb v. The State PLD 2012 SC 380 and Fareedullah v. State 2013 SCMR 302 rel.

Malik Misraf Khan for Appellant.

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

Date of hearing: 19th June, 2013.

2013 P Cr. L J 1797

[Peshawar]

Before Khalid Mahmood and Shah Jehan Khan Akhundzada, JJ

GHULAM BASIT---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.7-P of 2012, decided on 16th January, 2013.

National Accountability Ordinance (XVIII of 1999)---

----Ss.5(da), 12, 13 & 32---Freezing of property---Benamidar---Proof---House in question was frozen by Trial Court considering the same to be property of accused---Appellant filed objection on the plea that he was the real owner on the basis of unregistered sale-deed and accused had nothing to do with it---Objection was dismissed by Trial Court and property was not de-frozen---Validity---Authorities failed to prove that transaction of property in question was Benami one and also failed to prove that after release of accused, house owned by appellant could not be frozen/attached under S.12(f) of National Accountability Ordinance, 1999, in connection with alleged corrupt practices of accused---Allegation of prosecution was that previous owner executed general power of attorney in which it was mentioned that he had received sale-consideration---General attorney sold the house in favour of another person through registered sale deed from whom appellant purchased the same through cheques which were produced before Trial Court---Real owner was the person in whose favour there was registered sale-deed and he could only challenge ownership of appellant from whom he had derived the title---Appellant had successfully proved that house in question had been purchased from his independent source i.e. payment through four cheques by producing original document, being in possession of suit house, having no motive to purchase on behalf of accused---Prosecution failed to bring on record any proof through which it could be proved that suit house had been purchased through money procured from accused which he arranged through alleged corrupt practices---High Court set aside order passed by Trial Court and released the house in question---Appeal was allowed accordingly.

Tanvir Ahmad and 9 others v. The State 2009 PCr.LJ 919; Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703 and Iqbal Ahmad Turabi and others v. The State PLD 2004 SC 830 rel.

Rashidul Haq Qazi for Appellant.

Shaukat Ali for Respondents.

Date of hearing: 16th January, 2013.

2013 P Cr. L J 1858

[Peshawar]

Before Mazhar Alam Khan Miankhel and Assadullah Khan Chamkani, JJ

TAJ MUHAMMAD---Appellant

Versus

BACHA MUHAMMAD and another---Respondents

Criminal Appeal No.493 of 2010, decided on 12th September, 2012.

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

----S. 302(b)(c)---Qatl-e-amd---Appreciation of evidence---Self-defence right of--- Scope--- Sentence, reduction in---Complainant charged accused for murder of his son in his statement recorded under S.161, Cr.P.C. after three days of the occurrence---Complainant had stated that neither he had seen accused while firing at his son nor that fact had been stated to him by someone---Story as narrated by the prosecution, was not believable, in circumstances---Complainant had failed to show any motive as to why accused was prompted to kill his son; and even he failed to produce a single witness from the inmates of his house to prove that his son/deceased had left the house in the company of accused---Accused took the plea of his self-defence from the very beginning and his said plea was corroborated by site plan---No enmity between accused and the deceased had been established on record---Prosecution had failed to advance any motive as to why accused had killed the deceased---Occurrence was unseen and prosecution had failed to produce a single witness to prove that the deceased was lastly seen in the company of accused on the way while going from the house of the complainant to the house of accused---Except the statement of father of the deceased, which too, did not ring true, no evidence was produced by the prosecution in support of its case---Prosecution had failed to prove its case against accused beyond any shadow of doubt---Accused did the act in exercise of his right of self-defence, but he had exceeded the same, keeping in view the nature of injuries on the person of the deceased---Conviction of accused was altered from that of S.302(b), P.P.C., to S.302(c), P.P.C. and his sentence from life imprisonment was also altered from life imprisonment to ten years' R.I., and benefit of S.382-B, Cr.P.C. was also extended to accused.

(b) Criminal trial---

----Defence plea---Prosecution to prove its case---Duty of prosecution to prove its case against accused beyond doubt, did not diminish on raising of defence plea---Defence was not supposed to disprove the case of prosecution---Defence plea could be taken, could not be taken, and could be some time it was not proved---Burden of proof was not upon defence, but was always upon prosecution to prove the case beyond doubt---If defence plea succeeded in causing a dent in the credibility of the prosecution case, it was sufficient.

(c) Criminal trial---

----Defence plea---Burden of proof---When defence plea was raised by accused, the burden to prove the same would lie upon him, but where the prosecution evidence was discarded, the defence taken by accused had to be believed or disbelieved in toto.

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

----S. 96---Self-defence---Only consideration for self-defence was that a person threatened with danger of injury, should not exceed the limit fixed by the law---That would depend upon reasonable apprehension of danger to the person under the particular circumstances of the case---Reasonableness of the apprehension was a question of fact which would depend upon the weapon used, the manner of using it, the nature of assault or other surrounding circumstances.

??????????? Amir Gulab Khan for Appellant.

??????????? Sohail Akhtar for the Complainant.

??????????? Ikramullah Khan, A.A.-G. for the State.

??????????? Date of hearing: 12th September, 2012.

2013 P Cr. L J 1865

[Peshawar]

Before Attaullah Khan, J

IHSANULLAH and another---Petitioners

Versus

The STATE---Respondent

Criminal Miscellaneous B. A. No.131-P of 2012, decided on 8th February, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497--- Foreign Exchange Regulation Act (VII of 1947), Ss. 4 & 23---Dealing in Foreign Exchange unauthorisedly---Bail, grant of---Accused persons were charged for running business of Hundi/ Hawala---At the time of raid, though certain foreign currency was alleged to have been recovered from accused persons, but they claimed to be employees of a person who had already been enlarged on bail---Fact that none of the offences, in the present case, attracted the mischief of S.497, Cr.P.C., and that one of the co-accused had already been extended the concession of bail, accused person's case, on the principle of consistency alone, was arguable for the purpose of bail---Accused were admitted to bail, in circumstances.

Arshad Hussain Yousafzai for Petitioners.

Muhammad Iqbal Mohmand, D.A.-G. for the State.

Date of hearing: 8th February, 2012.

2013 P Cr. L J 18

[Balochistan]

Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ

MANZOOR HUSSAIN---Petitioner

Versus

The STATE and 8 others---Respondents

Constitutional Petition No. 125 of 2012, decided on 16th July, 2012.

(a) Constitution of Pakistan---

----Art. 199--- Criminal Procedure Code (V of 1898), S.417---Constitutional petition---Maintainability---Alternate remedy---Petitioner assailed judgment passed by Trial Court, whereby respondent was acquitted of the charges---Validity---Remedy of appeal was provided under S.417, Cr.P.C. to an aggrieved person, against finding of acquittal---Trial Court, through order in question, acquitted respondent but petitioner did not file appeal against it, therefore, constitutional petition to the extent of acquittal of respondent was not competent in presence of alternate remedy.

(b) Administration of justice---

----Non-following of the procedure---Effect---When statute prescribes an act to be done in a manner, then it must be done as directed so, and its deviation vitiate entire proceedings.

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

----Ss. 182 & 211---Criminal Procedure Code (V of 1898), Ss. 155, 195 & 561-A---Constitution of Pakistan, Art. 199---Constitutional petition---False information to public servant and false charge---Quashing of proceedings---Taking of cognizance---Earlier, a case was registered by petitioner against respondent and Trial Court acquitted respondent on the ground that case was false---Subsequently, on the direction of Sessions Judge, case under S.182, P.P.C. was registered against petitioner---Validity---Registration of F.I.R. by police on letter issued by District Attorney on behalf of Sessions Judge followed by investigation by police, at his own were not permitted by law---Such act of police was void, unlawful and trial on the basis of the same was coram non judice---Proceedings under S.182, P.P.C. could only be initiated on a written complaint of police officer but the section was inserted in F.I.R. on a letter from District Attorney---Offence having not been included on a written complaint of police officer concerned, proceedings under S.182, P.P.C. were unlawfully initiated against petitioner---Proceedings under S.211, P.P.C. could only be initiated on a written complaint of a court or by any other court to which such court was subordinate but there was no complaint in writing from Trial Court or any other court---Provisions of sections 155 and 195, Cr.P.C. were mandatory in nature, therefore, its non-compliance vitiated entire proceedings--- F.I.R. registered against petitioner on the direction of Trial Court was void and illegal, hence proceedings initiated against petitioner were without jurisdiction---Order passed by Sessions Judge for registration of case was set aside and F.I.R. registered against petitioner was quashed---Petition was allowed accordingly.

Saleemullah Khan for Petitioner.

Abdul Aziz Khilji, Additional A.-G. for the State.

Date of hearing: 24th May, 2012.

2013 P Cr. L J 62

[Balochistan]

Before Ghulam Mustafa Mengal and Muhammad Noor Meskanzai, JJ

GHULAM ABBAS alias HUSSAIN and another---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeal No.201 and Criminal Revision No.20 of 2009 decided on 3rd September, 2012.

Penal Code (XLV of 1860)---

----S. 302/34---Qatl-e-amd, common intention---Appreciation of evidence---Benefit of doubt---F.I.R. was lodged on the basis of statement of father of the deceased, who was not present on the spot and prosecution witness informed father of the deceased about the occurrence---Conviction could be based on circumstantial and last seen evidence, but same must satisfy the standard of quality of evidence that should satisfy the conscience of the court---Statements of both the prosecution witnesses were irreconcilable because the main fact i.e. the boarding or making to sit the victim in the vehicle, was missing---Evidence of last seen evidence furnished by prosecution witnesses, was found having major flaws, which could not be termed as of unimpeachable character---Both the witnesses appeared to have not seen the occurrence---Prosecution witnesses had failed to prove that they were quite natural, independent and truthful witnesses; and that their presence at the place of occurrence at the relevant time was justified---Both the witnesses made improvements to bring their ocular account in line with the prosecution story and made contradictory statement---Both said witnesses being interested their testimony was neither believable nor confidence-inspiring---Independent witnesses, who possibly had seen the occurrence, were not produced by the prosecution, but were withheld---Nothing incriminating was recovered from the possession or on pointation of accused---Medical evidence also did not corroborate the statements of the witnesses---After disbelieving the ocular testimony of the prosecution witness, conviction of accused could not be maintained only on the basis of medical evidence, report of Forensic Science Laboratory regarding blood-stained clothes of the deceased---Benefit of doubt arisen in the case would go to accused---Prosecution having failed to prove its case beyond any shadow of doubt, conviction and sentence of accused were set aside and he was acquitted of the charge and was released from the jail, in circumstances.

Muhammad Amjad v. State PLD 2003 SC 704; Rab Nawaz v. Sikandar Zulqarnain 1998 SCMR 25; Muhammad Mushtaq v. State 2001 YLR 1164; State v. Muhammad Tausef 2000 PCr.LJ 1729; Muhammad Amjad v. State PLD 2003 SC 704 and Khurshid v. State PLD 1996 SC 305 ref.

Muhammad Aslam Chishti for Appellant (in Criminal Appeal No.201 of 2009).

Ali Ahmed Kurd for the Complainant (in Criminal Appeal No.201 of 2009).

Abdul Sattar Durrani Additional Prosecutor-General for the State (in Criminal Appeal No.201 of 2009).

Ali Ahmed Kurd for Petitioner (in Criminal Revision No.20 of 2009).

Muhammad Aslam Chishti for Respondent No.1 (in Criminal Revision No.20 of 2009).

Abdul Sattar Durrani, Additional Prosecutor-General for the State (in Criminal Revision No.20 of 2009).

Date of hearing: 1st August, 2012.

2013 P Cr. L J 105

[Balochistan]

Before Muhammad Noor Meskanzai and Abdul Qadir Mengal, JJ

GHULAM MUHAMMAD---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.40 of 2010, decided on 3rd September, 2012.

Penal Code (XLV of 1860)---

----S. 302(b)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss. 7, 17, 20 & 24(2)---Qatl-e-amd, Haraabah---Jurisdiction of court, determination of---F.I.R., in the case was lodged under Offences Against Property (Enforcement of Hudood) Ordinance, 1979, charge was also framed under the said provisions of the Ordinance, but sentence had been awarded under the P.P.C.---Legally, it was the 'charge' that would determine the forum---On account of non-availability of evidence satisfying the standard of proof as required under S.7 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, sentence was to be inflicted by mentioning a section of P.P.C. within the meaning of S. 20 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979---Mere passing of sentence under 'Tazir', was not determination of the forum---Appeal was transferred to Federal Shariat Court, in circumstances.

PLD 2002 SC 534; 1997 PCr.LJ 1900 and 1984 SCMR 129 distinguished.

Abdul Karim Yousafzai for Appellant.

Abdul Karim Malghani for the State.

Date of hearing: 9th August, 2012.

2013 P Cr. L J 127

[Balochistan]

Before Muhammad Noor Meskanzai and Abdul Qadir Mengal, JJ

ABDUL BAQI---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.60 and Murder Reference No.21 of 2009, decided on 3rd September, 2012.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 40---Qatl-e-amd---Appreciation of evidence---F.I.R. had been lodged against four persons, on the basis of suspicion and incident was blind---Out of four persons, three were discharged by the prosecution under S.169, Cr.P.C.---Axe, which was recovered on the pointation of accused, was sent to Ballistic Expert, who gave positive report in respect thereof---Disclosure made by accused followed by the recovery of blood-stained axe at the instance of accused was an admissible piece of evidence within the meaning of Art.40 of Qanun-e-Shahadat, 1984---While recording the statement of acquitted co-accused under S.164, Cr.P.C. said co-accused was not provided an opportunity to cross-examine the maker of statement---No evidence was available on record to prove the fact that said acquitted co-accused had helped or abetted accused in any manner while accused was committing murder of the deceased---Trial Court, in circumstances, had rightly extended the benefit of doubt to co-accused---Confessional statement of accused, though had been recorded with delay of almost six days, but chain of the circumstances that led to pointation of place of occurrence, recovery of blood-stained axe, recording of the confessional statement, did not appear to have been recorded with delay---No such delay had taken place which could reduce the veracity and admissibility of the statement recorded under S.164, Cr.P.C.---No eye-witness of the incident being available, judgment had been rendered on the basis of circumstantial evidence and confessional statement of accused---Four persons were nominated in the F.I.R., and informant was not an eye-witness, and names were given on suspicion, but the Police by carrying out impartial investigation had rightly discharged the innocent persons nominated in the F.I.R.---Prosecution had proved the guilt of accused to the hilt, and the Trial Court after proper appreciation and analysis of the material available on record had rightly convicted and punished the accused---Findings of the Trial Court which were legal, proper and justified, needed no interference---Appeal was dismissed, Murder Reference was answered in the affirmative and death sentence awarded to accused by the Trial Court was confirmed, in circumstances.

2001 PCr.LJ 86 and 1985 SCMR 1793 rel.

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

----S. 164---Confessional statement---Evidentiary value---Scope---While evaluating the confessional statement, main object of law was to ensure the voluntariness and truthfulness of said statement---If the statement was found to have been given voluntarily, without duress, coercion and inducement; and simultaneously rang true, there was no impediment to accept the same, irrespective of delay (if any), if recorded within the period of legal physical remand with the Police.

Majeed v. The State 2010 SCMR 55 and Muhammad Ismail and another v. The State 1995 SCMR 1615 rel.

(c) Criminal trial---

----Circumstantial evidence---If the circumstantial evidence established the guilt of accused without any chain being broken, there was no harm in imposition of capital punishment on accused.

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

----S. 302(b)--- Qatl-e-amd--- Appreciation of evidence--- Awarding sentence of death---Accused had committed a cold-blooded murder of an innocent, armless, helpless and defenceless person by causing several serious injuries on vital parts of his body, at odd hours of night, by depriving the deceased of the facility of medical aid and treatment---Act on the part of accused was premeditated, intentional, callous---Accused, in circumstances, did not deserve any leniency---No extenuating or mitigating circumstance was present to justify the commutation of the sentence---Trial Court, in circumstances, had rightly passed the normal sentence of death to accused, which required to be confirmed---In case, the court was satisfied that the person was guilty of commission of murder, and there was no mitigating circumstance, in such eventuality, the court was bound to pass the normal sentence.

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 and PLD 1976 SC 452 rel.

Khalid Ahmed Kubdani for Appellant (in Jail Appeal No.60 of 2009).

Khalid Ahmed Kubdani for Respondent (in Murder Reference No.21 of 2009).

Muhammad Wassay Tareen, P.-G. for the State (in both cases).

Date of hearing: 8th August, 2012.

2013 P Cr. L J 147

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

The STATE through Additional Prosecutor-General---Petitioner

Versus

NAWABZADA SHAH ZAIN BUGTI and 4 others---Respondents

Criminal Revision No.92 of 2012, decided on 6th September, 2012.

Criminal Procedure Code (V of 1898)---

----S. 540---Application for summoning and producing witnesses as additional evidence---Prosecution in its application filed under S.540, Cr.P.C. requested that prosecution witness, who was Police Officer, having since died, other two eye-witnesses, who were Army Officers, could be allowed to be produced as additional evidence---Trial Court vide impugned order declined that request, holding, firstly, that summoning of intended witnesses, did not seem essential as such kind of evidence was already available on the record and; secondly that if statements of said intended witnesses were so necessary, why prosecution failed to associate them as witnesses in calendar of witnesses---Validity---Section 540, Cr.P.C., empowered a court to call for any person as witness, who appeared to be essential to just decision of the case---Said power/descretion was to be exercised by the court judiciously, keeping in view the facts and circumstances of the case---Solitary eye-witness of the prosecution, having died, it would be just and appropriate to allow the prosecution to produce remaining eye-witnesses---Prosecution though was negligent but for the purpose to arrive at just decision of the case some evidence must come on record, which would be helpful for both the parties---Impugned order was set aside and prosecution was allowed to produce intended witnesses, with direction to produce said witnesses before the Trial Court without any delay.

Mst. Munawar Sultana v. Muhammad Shafique alias Mithu 2008 PCr.LJ 1749; 2006 YLR 3107; 1998 SCMR 325; Dildar v. The State PLD 2001 SC 384 and Painda Gul v. State 1987 SCMR 886 ref.

Muhammad Wassay Tareen, Prosecutor-General and Ms. Sarwat Hina Additional Prosecutor-General for Petitioner.

W.N. Kohli, Sohail Rajput and Jameel Ramzan for Respondents.

Date of hearing: 3rd August, 2012.

2013 P Cr. L J 175

[Balochistan]

Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ

NASEEB GUL---Appellant

Versus

AMIR JAN and another---Respondents

Criminal Acquittal Appeal No.216 of 2010, decided on 3rd September, 2012.

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

----S. 489-F---Dishonestly issuing a cheque---Prerequisites---Dishonesty on part of the payer---Scope---To constitute an offence under S.489-F, P.P.C., dishonesty on part of the payer was a condition precedent in issuance of a cheque towards repayment of a loan or fulfilment of an obligation---Mere issuance of a cheque and same being dishonoured, by itself was not an offence, unless and until dishonesty on part of the payer was proved.

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

----S. 489-F---Dishonestly issuing a cheque---"Dishonesty", meaning of---"Dishonesty" meant a fraudulent act or intent to defraud others, especially creditors and lien holders.

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

----S. 489-F---Dishonestly issuing a cheque---"Dishonour", meaning of---Word "dishonour" used in S.489-F, P.P.C meant failing to honour a cheque, with an intent to defraud and befool a payee towards repayment of a loan or fulfilment of an obligation, just to disgrace or put him in a state of shame.

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

----S. 489-F---Criminal Procedure Code (V of 1898), S. 417(2-A)---Dishonestly issuing a cheque---Appeal against acquittal---Appreciation of evidence---Cheque not issued wilfully and intentionally---Dishonest intention not proved---Transaction forming liability for payment not disclosed---Accused (respondent) was alleged to have issued a cheque to the complainant (appellant) which was dishonoured on presentation---Trial Court convicted and sentenced the accused but he was acquitted of the charge by the First Appellate Court---Validity---Complainant had admitted catching hold of the accused for repayment of loan to which the accused replied that he had no amount to repay the loan---Despite such circumstances, accused was forced to issue the cheque in question, therefore, it was not voluntary rather the complainant used force and compelled the accused to issue the cheque---Facts proved that accused did not issue the cheque wilfully and intentionally---Bank representative, appearing as prosecution witness, admitted in his cross-examination that complainant had a signed blank cheque book pertaining to the account of the accused and complainant separated one leaf from the said cheque book, filled it and presented it to the bank---Bank representative had informed the complainant that there was no amount in the account of the accused, but despite such fact complainant opted to produce same, which showed that he wanted to trap the accused---Complainant did not produce a single witness to prove the dishonest intention of the accused---Complainant alleged that accused owed him an amount but did not disclose the terms and conditions of the transaction between them or its mode of payment---Complainant used the cheque according to his own whims and wishes, therefore, in the event of same being dishonoured, accused could not be held responsible for the same---Appeal against acquittal was dismissed in circumstances.

??????????? Rizwan Ejaz and Adnan Ejaz for Appellant.

??????????? Date of hearing: 24th July, 2012.

2013 P Cr. L J 188

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

SHAHID HAKEEM---Appellant

Versus

ALTAF HUSSAIN AGHA and another---Respondents

Criminal Appeal No.14 of 2009, decided on 5th August, 2012.

Illegal Dispossession Act (XI of 2005)---

----S. 3---Encroachment and illegal dispossession---Appreciation of evidence---In order to constitute an offence under S.3(1) of Illegal Dispossession Act, 2005, complainant must disclose existence of both, unlawful act (actus rea), and criminal intent (mens rea)---Mere encroachment was something different from illegal dispossession as encroachment did not involve intention of grabbing the property---Illegal Dispossession Act, 2005, having no retrospective effect, could not be applicable to the cases of unauthorized occupants pending before any other forum on the date of promulgation of said Act, but if the case of illegal occupant was not already pending before any other forum on the date of promulgation of said Act, same would squarely fall within the ambit of said Act.

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

H. Shakil Ahmed for Appellant.

Munir Ahmed Langove for Respondent No.1.

Abdul Sattar Durrani, D.P.-G. for the State.

Date of hearing: 29th July, 2011.

2013 P Cr. L J 196

[Balochistan]

Before Ghulam Mustafa Mengal and Jamal Khan Mandokhail, JJ

Mst. FARHEEN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.172 of 2012, decided on 13th September, 2012.

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

----S. 9(c)---Possession and trafficking of narcotic---Appreciation of evidence---Defence plea of false implication not proved---Planting of huge quantity of narcotics not probable---Accused-lady was allegedly found in possession of 7 kilograms of charas after police searched her bag at a checkpoint---Accused was convicted and sentenced by the Trial Court---Contentions of accused were that she had been falsely implicated in the case by the police and managed official witnesses and because of lack of disinterested witnesses, no reliance could be placed on the evidence of police witnesses---Validity---Plea of false implication of accused was belied by the fact that complainant (police official) who prepared the recovery memo and recovery witness (police official) remained consistent in their statements on material particulars of the prosecution case---No material discrepancies or contradictions had been brought on record to shatter credibility of prosecution evidence--- Accused was arrested on the spot along with the contraband--- Report of Forensic Science Laboratory was positive---No mala fide or enmity with the police had been brought on record---Such huge quantity of contraband could not be planted by the prosecution against the accused---Accused had failed to prove her defence plea by producing evidence---Appeal was dismissed in circumstances.

Jameel Ramzan for Appellant.

Atiq Ahmed Khan, Additional Prosecutor-General for the State.

Date of hearing: 6th September, 2012.

2013 P Cr. L J 229

[Balochistan]

Before Muhammad Hashim Khan Kakar and Muhammad Noor Meskanzai, JJ

ARAB---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.357 of 2008, decided on 24th October, 2012.

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

----Ss. 302(b) & 302(c)---Criminal Procedure Code (V of 1898), Ss. 164 & 364---Qanun-e-Shahadat, (10 of 1984), Art. 37---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Confessional statement of accused recorded voluntarily and promptly---Deceased contributing to his own death---Effect---Accused, who was a juvenile, allegedly fired at the deceased---Motive for the incident was a dispute over vacation of a rented shop---Accused recorded his confessional statement before the Magistrate but subsequently retraced the same---Trial Court convicted the accused under S.302(b), P.P.C. and sentenced him to life imprisonment along with compensation of Rs.50,000 to be paid to legal heirs of deceased---Validity---Accused voluntarily surrendered before the police and handed over his crime weapon---Confessional statement of accused was recorded a day after his arrest, which eliminated the possibility of use of coercion, inducement or persuasion---Promptitude with which confessional statement of accused was recorded depicted voluntariness---Judicial Magistrate who recorded confessional statement of accused complied with all the necessary formalities enumerated in Ss.164 and 364, Cr.P.C.---Accused had brought nothing on record to show that the confession was not voluntary or the same was obtained through coercion, maltreatment or inducement---Retraction of confession by accused seemed to be palpably false and incorrect and the only conclusion that could be drawn was that confessional statement was recorded by accused voluntarily---Confessional statement of accused stood corroborated by motive, medical evidence and recovery of crime weapon---Report of firearm expert was not produced by the prosecution since crime weapon and empties were damaged due to an explosion at the Forensic Science Laboratory---Report of firearm expert hardly made a difference in view of the confessional statement of the accused, which was adjudged to be true and voluntary---Doctor mentioned that time between death and examination of accused was 2 to 4 hours, which corresponded with the time of occurrence as mentioned in confessional statement of accused---Prior to the incident deceased entered the house of accused and misbehaved---Accused apparently committed murder of deceased to defend his family honour and it appeared that it was immoral and improper act of the deceased himself, which led or at least contributed to his ultimate murder---Conviction of accused under S.302(b), P.P.C. was converted to S.302(c), P.P.C. and his sentence of life imprisonment was altered to fourteen years imprisonment along with compensation of Rs. 50,000 to be paid to the legal heirs of deceased---Appeal was dismissed accordingly.

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

----S. 164---Confession, retraction of---Burden of proof---Scope---When an accused person retracted or resiled from his confession, then the onus lies on him that he did not record any confession.

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

----S. 164---Sole confessional statement of accused---Conviction---Scope---Conviction could be based on sole confessional statement, provided the same was voluntary and true.

State through A.-G. N.-W.F.P., Peshawar v. Waqar Ahmed 1992 SCMR 950 rel.

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

----S. 164---Confessional statement---Inculpatory and exculpatory part, reliance on---Scope---General rule was that confessional statement of accused was to be accepted as a whole, if the conviction was based solely on his statement---Confessional statement of accused in such a case could not be relied upon in part by accepting inculpatory part and excluding exculpatory part of it---Exception to the general rule applied where conviction was not based solely on the confession, in which case confession could be accepted in part by relying upon inculpatory part and excluding the exculpatory part.

Faiz v. The State 1983 SCMR 76 rel.

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

----Ss. 164 & 364--- Oaths Act (X of 1873), S. 5--- Confessional statement of accused recorded on oath, reliance on---Scope---Confessional statement of accused should not be recorded on oath---Mere fact that judicial confession was recorded on oath, would not be sufficient to reject the same, as it might only be a procedural mistake in the form of an irregularity in exercise of jurisdiction, which might not affect the statement in substance---Notwithstanding procedural defect in recording the confession, a judicial confession, if voluntary and confidence inspiring, could safely be made basis of conviction.

Nazeer alias Wazir v. The State PLD 2007 SC 202 rel.

Mujeeb Ahmed Hashmi and Kushal Khan Kasi for Appellant.

Abdul Sattar Durrani, Additional P.-G. for the State.

Usman Yousafzai and Muhammad Hassan Sherani for the Complainant.

Date of hearing: 15th October, 2012.

2013 P Cr. L J 405

[Balochistan]

Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ

BALOCHISTAN PUBLIC SERVICE COMMISSION through Chairman---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU (NAB), ISLAMABAD through Chairman and 2 others---Respondents

Constitutional Petition No.683 of 2012, decided on 22nd October, 2012.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 5(m) & 18(c)---Constitution of Pakistan, Art.199---Constitutional petition---Holders of public office---Inquiry, non-initiation of---Effect---Statutory body through its Chairman assailed conducting of inquiry by National Accountability Bureau against its officers---Validity---Officials of Balochistan Public Service Commission were permanent employees and as such were in the service of Pakistan, therefore, their service was within the definition of "a person holding public office"---National Accountability Bureau was empowered under National Accountability Ordinance, 1999, to initiate proceedings against any person holding public office on the charge of corruption, corrupt practices or misuse of authority etc.---No one was empowered under National Accountability Ordinance, 1999, to start proceedings against any person, until and unless inquiry or investigation was sanctioned by competent authority---No inquiry was sanctioned into the matter, therefore, raid conducted by authorities at the office of Commission was illegal and without jurisdiction---When a thing was required to be done in a manner, then it should be done accordingly---Petition was allowed accordingly.

Barrister Adnan Kasi for Petitioner.

Muhammad Afzal Jami, D.P.-G. NAB along with Salah-ud-Din Mughal, Assistant Director/Investigation Officer (FCIW) NAB (B) for Respondents.

Date of hearing: 17th October, 2012.

2013 P Cr. L J 478

[Balochistan]

Before Muhammad Hashim Khan Kakar and Muhammad Noor Meskanzai, JJ

MUHAMMAD ISMAIL and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.233 of 2007, Criminal Acquittal Appeal No.268 of 2007 and Murder Reference No. 19 of 2007, decided on 12th November, 2012.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Conversion of death sentence into life imprisonment---Occurrence not premeditated---Lack of intention to commit murder---Accused allegedly made firing upon the deceased---Motive for the occurrence was that prior to the incident deceased had allegedly assaulted and abused the brother of accused---Trial Court convicted and sentenced the accused under S.302(b), P.P.C. to suffer death as well as to pay Rs. 100,000 as compensation to legal heirs of the deceased---Validity---Accused did not deny the allegation at the time of his examination under S.342, Cr.P.C. and also recorded his confessional statement before the Judicial Magistrate---Ocular account was fully supported by the medical evidence as well as recovery of crime weapon, followed by positive report of Forensic Science Laboratory---Although eye-witnesses were related with the deceased, but their testimonies could not be discarded on such score alone, as they were quite consistent with material particulars of the incident i.e. day, time, mode and manner as put forward by the prosecution---Despite lengthy cross-examination, the defence failed to create any dent in the veracity of prosecution witnesses, except a few immaterial discrepancies---Prior to the occurrence a scuffle had taken place between the parties and abuses were exchanged, after which deceased was killed---Murder of deceased was not premeditated and the accused did not have any intention of committing his murder, therefore, death sentence awarded to accused by the Trial Court was against the principle of safe administration of criminal justice---Death sentence awarded to accused was modified to life imprisonment with the benefit of S.382-B, Cr.P.C., however amount of compensation ordered by Trial Court was not modified---Appeal was dismissed accordingly.

Abid Hussain v. The State PLD 1994 SC 641; Abdul Haq v. The State PLD 1996 SC 1; Khurshid v. The State PLD 1996 SC 305 and Abdul Zahir v. The State 2000 SCMR 406 ref.

Abid Hussain v. The State PLD 1994 SC 641 and Abdul Haq v. The State PLD 1996 SC 1 rel.

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

---S. 302(b)---Criminal Procedure Code (V of 1898), S. 417 (2-A)---Qatl-e-amd---Appeal against acquittal, dismissal of---Appreciation of evidence---Accused persons while armed with pistol and sticks allegedly launched an attack on the deceased---Trial Court acquitted the accused persons---Validity---Findings of Trial Court with regard to acquittal of accused persons were well-reasoned---Sufficient reasons existed to believe that wider net had been thrown by the prosecution to implicate all members of the family of the accused persons---Prosecution had failed to establish the case against accused persons---Appeal against acquittal was dismissed in circumstances.

Mohib Ullah Shah for Appellants (in Criminal Appeal No.233 of 2007).

Shams-ur-Rehman for the Complainant (in Criminal Appeal No.233 of 2007).

Abdul Sattar Durrani, Additional P.-G. for the State (in Criminal Appeal No.233 of 2007).

Abdul Sattar Durrani, Additional P.-G. for the State (in Murder Reference No.19 of 2007).

Mohib Ullah Shah for Convict (in Murder Reference No.19 of 2007).

Shams-ur-Rehman for the Complainant (in Murder Reference No.19 of 2007).

Shams-ur-Rehman for Appellant (in Criminal Acquittal Appeal No.268 of 2007).

Abdul Sattar Durrani, Additional P.-G. for the State (in Criminal Acquittal Appeal No.268 of 2007).

Mohib Ullah Shah for Private Respondent (in Criminal Acquittal Appeal No.268 of 2007).

Date of hearing: 7th November, 2012.

2013 P Cr. L J 518

[Balochistan]

Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ

AFTAB IQBAL KHILJI---Petitioner

Versus

The STATE---Respondent

Review Application No.(S) 1 in Criminal Appeal No. 127 of 2004 and Review Application No.(S) 2 of 2009 in Criminal Appeal No.(S)42 of 2001, decided on 28th November, 2012.

(a) Stare decisis, principle of---

----Applicability---Principle of stare decisis is a greatly valuable doctrine of common law and court should stand by precedents and should not disturb them but this rule is not so inflexible which precludes a departure therefrom in any case--- Application of stare decisis must be determined in each case by discretion of court, keeping in view its peculiar circumstances.

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

----S. 561-A---Review of judgment---Principle---No provision is available for review of any judgment or order under Criminal Procedure Code, 1898, yet while exercising inherent jurisdiction under S.561-A, Cr.P.C. High Court has ample power to correct its own orders or to recall an erroneous order---Criminal court can only review or recall its judgment and order, if it is satisfied that earlier order/ judgment is either without jurisdiction or against mandatory provisions of law and has been delivered inadvertently and out of oblivion of the provision of law and if such order / judgment is left intact, it would result in perpetration of manifest injustice.

(c) Police Rules, 1934---

----R. 16.2(2)---Pakistan Arms Ordinance (XX of 1965), S.13(e)---Penal Code (XLV of 1860), S.161---Prevention of Corruption Act (II of 1947), S.5---Criminal Procedure Code (V of 1898), S. 561-A---Review of judgment---Reinstatement in service---Petitioner was employee of police who was convicted and sentenced in two different cases one for keeping illegal arms and other for accepting illegal gratification---Convictions and sentences awarded by Trial Courts in both the cases were maintained by High Court---After lapse of about five years, petitioner sought review of judgments passed in criminal cases and authorities reinstated him in service---Validity---Any police officer sentenced judicially by competent court of law to rigorous imprisonment exceeding one month should be dismissed from service, provided such sentence was not quashed on appeal or revision---Criminal appeals filed by petitioner in High Court were dismissed in years 2002 and 2004 respectively and no appeal or revision was pending before any appellate or revisional forums on 9-5-2009, when he was re-instated in service---No occasion was left with police authorities to reinstate petitioner in service---Review petitions were filed on 16-4-2009, by petitioner after an unexplained delay of about five years, just to create ground for his reinstatement in service, which smacked mala fide on the part of petitioner and concerned police authority---High Court declined to interfere in convictions and sentences awarded to petitioner---Petition was dismissed in circumstances.

Iqbal v. The State 2001 PCr.LJ 1634; Maulana Muhammad Azam Tariq, MNA v. Khursheed Ali 1996 PCr.LJ 119; Pir Sultan Ahmed v. Haji Abdul Hameed PLD 1980 Kar. 294; Juan Sullivan v. The State 1971 SCMR 618 and Shah Nazar Khan v. Goga Khan 2005 YLR 3297 ref.

M. Kamran Murtaza for Petitioner.

Abdul Aziz Khilji, Additional A.-G. for the State.

Date of hearing: 13th November, 2012.

2013 P Cr. L J 692

[Balochistan]

Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ

SALEH MUHAMMAD alias HASHIM MARRI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.18 and Murder Reference No.4 of 2011, decided on 24th October, 2012.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Promptly lodged F.I.R.---Recovery of crime weapon---Ocular account corroborated by medical evidence and motive---Accused and co-accused persons allegedly fired at the complainant party, which resulted in death of complainant's brother and cousin---Motive for the occurrence was exchange of harsh words between the parties prior to the incident---Occurrence took place at 8-45 p.m. and F.I.R. was lodged at about 9-30 p.m.---Distance of police station from place of occurrence was approximately 2.5 kilometers, thus it could be said that F.I.R. was lodged with reasonable promptitude, which excluded possibility of deliberation and consultation---Presence of complainant at the shop of his deceased brother and cousin at the time of occurrence was quite natural---Evidence of complainant could not be shattered during cross-examination, therefore, his testimony could not be rejected merely on the ground of his relationship with the deceased persons---Ocular account was fully corroborated by medical evidence insofar as the time, locale and dimension of the injuries received by deceased persons---Crime weapon was recovered from possession of accused immediately after the occurrence---Forensic examination of weapon recovered from accused revealed that same was in working order and fires had been made through it---Statement of complainant was also corroborated by the alleged motive behind the occurrence, which was exchange of harsh words between one of the deceased and accused prior to the incident---Complainant deposed same motive during trial in his deposition---Non-securing of empties by the investigating officer could not destroy the case of the prosecution as per site plan, the occurrence had taken place on a highly busy road and possibility could not be ruled out that empties were displaced by fast moving vehicles---Prosecution had established case against accused beyond any shadow of doubt---Appeal was dismissed and death sentence awarded to accused was confirmed in circumstances.

Gulli v. The State 1999 PCr.LJ 1179 rel.

(b) Criminal trial---

----Solitary witness, statement of---Reliance---Scope---Evidence of sole witness could be safely relied upon for conviction if it was confidence-inspiring and trustworthy.

Riaz Hussain v. The State 2001 SCMR 177 rel.

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

----S. 302(b)---Qatl-e-amd---Related witness, evidence of---Reliance---Scope---Mere relationship of witness with deceased persons was not sufficient to discard his evidence outrightly---When presence of related witness at the time of occurrence was natural and his evidence was straight-forward and confidence-inspiring, then same could be safely relied upon to award capital punishment.

(d) Criminal trial---

----Motive---Failure to prove---Effect---Lack of motive or its weakness was never fatal for the prosecution if the case otherwise stood proved through direct evidence with regard to the occurrence.

Imtiaz Ahmed v. The State 2001 SCMR 1334 rel.

(e) Criminal trial---

----Weapon of offence or empties, recovery of---Nature---Recovery of weapon of offence or empties was not the mandatory requirement of law, but it was a circumstantial piece of evidence, which tended to corroborate other pieces of evidence i.e. ocular account, motive, medical evidence and any other circumstance, which might be deemed to be relevant.

(f) Criminal trial---

----Site plan, reliance on---Scope---Site plan by itself was not a substantive piece of evidence, nor could it take away the probative force of reliable eye-witness, whose statement appeared to be truthful.

Ali Sher v. The State PLD 1980 SC 317 rel.

Muhammad Qahir Shah for Appellant.

Abdul Ghani Mashwani for the Complainant.

Abdul Sattar Durrani, Additional P.-G. for the State.

Date of hearing: 17th October, 2012.

2013 P Cr. L J 787

[Balochistan]

Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ

ABDUL BAQI---Appellant

Versus

ATTAULLAH and 2 others---Respondents

Criminal Acquittal Appeal No. 141 of 2012, decided on 23rd January, 2013.

Illegal Dispossession Act (XI of 2005)---

----S. 3---Criminal Procedure Code (V of 1898), S. 417(2)---Prevention of illegal possession of property---Appeal against acquittal---Appreciation of evidence---Trial Court dismissed complaint filed against the accused under the Illegal Dispossession Act, 2005---Validity---Dispute was purely of civil nature---Record showed that accused was not in possession or occupation of disputed property, therefore, no question of dispossession or ejectment or ouster of complainant from the disputed property arose---Record further showed that a house had been built on disputed property and it was in possession of a person, who had been residing therein for the last fifteen years---Said person was not a party in the complaint filed against the accused---Provisions of Illegal Dispossession Act, 2005 were not applicable in such circumstances---Trial Court was justified in acquitting the accused---Appeal against acquittal of accused was dismissed accordingly.

Behlol Khan Kasi for Appellant.

Date of hearing: 22nd November, 2012.

2013 P Cr. L J 1057

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

TAHIR MEHMOOD INSPECTOR OF POLICE (INVESTIGATION)---Appellant

Versus

The STATE through Prosecutor-General, Balochistan---Respondent

Criminal Appeal No.104 of 2010, decided on 23rd April, 2013.

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

----S. 5---Penal Code (XLV of 1860), S. 161---Illegal gratification---Appreciation of evidence---Trap raid case---Judicial Magistrate, absence of---Non-hearing of conversation---Accused persons were convicted and sentenced by Trial Court for accepting illegal gratification---Validity---Trap raid was made in absence of Judicial Magistrate, therefore, violative of law and doubtful but non-associating Judicial Magistrate in trap raid did not vitiate all proceedings, as it was not a mandatory requirement---Present was a case of illegal gratification received by public servant with further allegation in rebuttal against three public servants to involve accused in commission of offence---Keeping in view the nature of case, some specific evidence was required to establish charge---Contradictions in statements of eye-witnesses destroyed case of prosecution---Trial Court failed to consider evidence in its true perspective and also failed to dilate upon contradictions appearing in statements of witnesses, which had made evidence as less reliable---None of witnesses heard conversation between accused and complainant, nor had seen exchange of money---Fact of recovery of tainted money from accused was also not free from doubts---Prosecution was required to discharge burden to prove that there was demand and acceptance of illegal gratification by public servant but failed which made it a case of acquittal---High Court set aside conviction and sentence awarded to accused by Trial Court and he was acquitted of the charge---Appeal was allowed in circumstances.

Liaquat Ali v. The State 1999 PCr.LJ 1974; Muhammad Anwar v. The State 1984 PCr.LJ 1399 and Dewan v. The State 1994 PCr.LJ 2302 ref.

Muhammad Aslam Chishti and Abdul Ghani Mashwani for Appellant.

Pervaiz Akhtar, Deputy Prosecutor-General for the State.

Date of hearing: 3rd October, 2012.

2013 P Cr. L J 1089

[Balochistan]

Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ

ALI AHMED BALOCH and others---Appellants/Petitioners

Versus

The STATE through NAB Authorities and others---Respondents

Criminal Ehtesab Appeals Nos.3, 4 and C.P. No.236 of 2008, decided on 11th April, 2013.

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

----Ss. 32 & 33-E---Penal Code (XLV of 1860), S.70---Fine, recovery of---Imprisonment in lieu of fine---Effect---Undergoing imprisonment, awarded in default of payment of fine, does not operate as discharge or satisfaction of order of payment of fine---In spite of undergoing imprisonment in default of payment of fine, liability of offender is still there and that could be enforced for special reasons to be recorded in writing---In special cases of corruption, misappropriation and embezzlement of public money, fine is imposed just to recover embezzled amount/public money and to compensate loses caused by offender to State exchequer.

Ahmed Ali Siddiqui v. Sargodha Central Cooperative Bank Limited 1989 SCMR 824 rel.

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

----S. 33-E---Recovery of fine---Limitation---Application under S. 33-E of National Accountability Ordinance, 1999, moved by NAB after dismissal of appeal was not barred by limitation.

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

----Ss. 404 & 439---"Appeal" and "revision"---Distinction---Appeal is continuation of original proceedings before higher forum for testing soundness of decision of lower court---Remedy of revision is discretionary and revisional Court has to proceed under certain limitations.

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

----S. 33-E---West Pakistan Land Revenue Act (XVII of 1967), S. 80---Fine, recovery of---Procedure---Provision of S.80 of West Pakistan Land Revenue Act, 1967, which authorizes any statutory body to recover any amount as arrears of land revenue, can be invoked subject to condition that dues should be determined, affixed and ascertained.

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

----Ss. 9(a)(iv), 25, 32 & 33-E---Voluntary return and plea bargain---Stages---Trial Court, jurisdiction of---Accused was convicted and sentenced by Trial Court for holding assets disproportionate to his known sources of income---After conviction and sentence was maintained by Supreme Court, authorities filed application before Trial Court for recovery of fine---During pendency of recovery proceedings, accused filed application for plea bargaining, which was dismissed by Trial Court---Validity---Provisions of S.25 of National Accountability Ordinance, 1999, demonstrated two stages to accused for availing opportunity of plea-bargain i.e. prior to authorization of investigation against him and, secondly during the course of trial or pendency of appeal---Chairman NAB, was only authorized to discharge accused from all his liabilities in respect of matter or transaction, provided that matter was not sub judice in any court of law---Trial Court could also entertain application under S.25 of National Accountability Ordinance, 1999, for plea bargain, when the matter was pending before it and after passing of final judgment, it became functus officio and had no power to entertain such requests---Besides forfeited properties, NAB was also authorized to put to auction remaining properties of accused in order to recover amount of fine as arrears of land revenue---Accused failed to point out any illegality or irregularity to interfere in order of Trial Court---Appeal was dismissed in circumstances.

(f) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Petitioners have to approach the court with clean hands.

Muhammad Riaz Ahmed for Appellants/Petitioners.

Muhammad Afzal Jami, Deputy Prosecutor-General (NAB) and Amir Zaman Jogezai, Special Prosecutor (NAB) for Respondents.

Date of hearing: 3rd April, 2013.

2013 P Cr. L J 1284

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

MUHAMMAD ISHAQUE---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.164 of 2013, decided on 14th May, 2013.

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

----S. 497---Penal Code (XLV of 1860), S. 302/34---Qatl-e-amd, common intention--- Bail, refusal of--- Lengthy abscondence of 15 years--- Effect--- Accused was apprehended after a lapse of about 15 years, and his abscondence seemed to be deliberate---Abscondence of 15 years disentitled the accused from concession of bail---Accused claimed that he was unaware of his implication for the offence during all the years, however such fact could not be believed as two of his close relatives (co-accused) faced trial for the same offence---Incident was timely reported---Name of accused also appeared in the contents of F.I.R.---Accused was refused bail accordingly.

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

----S. 497---Bail---Abscondence---Effect---Fugitive from law lost some of his normal rights available to him in procedural and substantive law.

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

----S. 497---Penal Code (XLV of 1860), S. 302/34---Qatl-e-amd, common intention---Bail, refusal of---Evidence recorded in absence of accused as a ground for grant of bail---Accused remained absconder while co-accused faced trial and were acquitted---Plea of accused that during trial of co-accused, the evidence recorded failed to make out any case against him, therefore, he should be granted bail on basis of such evidence---Validity---Considering evidence recorded during trial of co-accused for purposes of bail of accused would amount to decision of the case against the accused even before commencement of his trial---Such evidence could not be considered for purposes of bail of accused---Accused was refused bail accordingly.

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

----S. 497--- Bail--- Grounds--- Advance age of accused--- Physical infirmity---Such grounds were not considered to be valid grounds for grant of bail in circumstances.

Muhammad Ayub for Applicant.

Amir Hamza Mengal, Deputy Prosecutor-General for the State.

Noor Ahmed Bangulzai for the Complainant.

Date of hearing: 26th April, 2013.

2013 P Cr. L J 1452

[Balochistan]

Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ

NOOR AHMED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.55 of 2012, decided on 11th March, 2013.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Prosecution witness, who had been cited as eye-witness in the F.I.R. and claimed to be present at the spot when incident took place, except giving an incomplete description of culprit, had not claimed that he identified assailant or that he could identify the culprit who committed the offence---Said witness had not identified the culprit during the course of identification parade, at the strength of description given in his statement---Said witness had denied the suggestion that he had earlier seen culprit and that culprit was known to him---No ground existed to believe the statement of said witness qua his capability to have identified accused---Other prosecution witness, who claimed to be eye-witness, had not been cited as eye-witness in the F.I.R.---Statement of said witness was recorded with unexplained delay---Statements of said two prosecution witnesses, could not be relied upon, on account of contradictions in their statements---Prosecution had failed to bring home the charge against accused beyond reasonable doubt, and defence had succeeded to create dents and reasonable doubt in the prosecution case---Accepting appeal, impugned judgment passed by the Trial Court, was set aside, accused was acquitted of the charge and was released, in circumstances.

(b) Islamic jurisprudence---

----Crime and punishment---Error of a Qazi in acquitting an accused was better than his mistake in recording conviction against an innocent person.

(c) Criminal trial---

----Benefit of doubt---Scope---Various circumstances were not required to extend benefit of doubt to an accused---If a single circumstance was available, which according to a prudent mind was sufficient to create reasonable doubt in the prosecution case and thereby the veracity and the chastity of the prosecution case was rendered doubtful; then accused would be entitled for the benefit of doubt as a matter of right, and not as matter of grace.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Nouroz Khan Mengal for Appellant.

Miss Sarwat Hina, Additional P.-G. for the State.

Date of hearing: 6th December, 2012.

2013 P Cr. L J 1535

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

MUHAMMAD AKRAM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.6 of 2011, decided on 13th June, 2013.

Penal Code (XLV of 1860)---

----S. 218---Public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture---Appreciation of evidence---Allegation against accused was two-folds; firstly that he reduced into writing an order of acquittal on papers of remand pertaining to an accused, instead of conviction and the punishment awarded to said accused; secondly, accused managed to get the remand papers signed by the Trial Court through fraud and in consequence thereof said convict managed his release from the Jail---Prosecution was required to establish the act as alleged on the part of accused which resulted in release of convict---Way in which the matter was dealt with had shown mala fides on the part of the prosecution, which could not be ignored---Neither the investigation was properly made, nor all the concerned persons were booked in the case and no Police report was submitted to their extent---By recording of findings only to the extent of accused would amount to administrative injustice, and recourse to all the remaining persons, seemed to be involved in the commission of the offence, to go free and to escape from law---No findings would have been recorded in such like situation, being not just or proper---Impugned order of court below was set aside and case would be deemed to be pending with the said court---Investigating authorities, were directed by High Court to re-investigate the matter, re-submit the report (challan) within the stipulated period; thereby booking all the persons found involved in commission of offence and trial be held against all the nominated persons including the present accused---Trial Court was further directed to finalize the matter within shortest possible time.

Noorullah Kakar for Appellant.

Ms. Sarwat Hina, Additional Prosecutor-General for the State.

Date of hearing: 14th December, 2012.

2013 P Cr. L J 1571

[Balochistan]

Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ

Haji KHAN MUHAMMAD---Petitioner

Versus

GOVERNMENT OF PAKISTAN, NATIONAL ACCOUNTABILITY BUREAU through Chairman and 2 others---Respondents

C.P. No.150 of 2009, decided on 12th June, 2013.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 15 & 25---Constitution of Pakistan, Art. 199---Constitutional petition---Interest on liability---Plea bargaining amount---Petitioner availed benefit of plea bargaining and his offer as to ill-gotten gain obtained through corruption was accepted by competent authority pursuant to which petitioner deposited Rs.33,97,894 in the account of Chairman NAB and amount of Rs.466,520 as 15% interest upon total amount was outstanding against petitioner---Plea raised by petitioner was that law did not entitle NAB to claim interest upon actual amount, as assessed in investigation or mentioned in Reference---Validity---Petitioner had to deposit actual amount as per the charge and S.25 of National Accountability Ordinance, 1999, was silent about question of interest upon actual amount---Imposition of 15% as additional amount from petitioner was unjustified, and demand of such amount was illegal and without lawful authority and in violation of S.25 of National Accountability Ordinance, 1999---High Court restrained the authorities from claiming excess amount as 15% interest from petitioner and directed the authorities to return if the same had already been recovered from petitioner--- Petition was allowed in circumstances.

Syed Ayaz Zahoor and Arthur Victor for Petitioner.

Fareed Dogar, Special Prosecutor, NAB for Respondents.

Date of hearing: 25th April, 2013.

2013 P Cr. L J 1583

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

JUMA KHAN---Applicant

Versus

The STATE and another---Respondents

Criminal (Cancellation) Bail Application No.514 of 2012, decided on 10th July, 2013.

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

----S. 498---Pre-arrest bail, grant of---Pre-conditions---Consideration for pre-arrest bail and post-arrest bail are entirely different---Extraordinary concession of pre-arrest bail can be granted only in cases of exceptional nature and that power can only be exercised when either arrest being for ulterior motive such as humiliation; unjustified harassment; prosecution motivated to cause irreparable injury to reputation; motivation of police on political consideration; or when accused has been implicated falsely.

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

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

----S. 497(5)---Penal Code (XLV of 1860), S.324---Pre-arrest bail, cancellation of---Attempt to commit qatl-e-amd---Civil litigation---Trial Court granted pre-arrest bail to accused on two grounds i.e. affidavits of injured witnesses and existence of civil dispute between parties---Validity---Both the grounds were capricious and whimsical and were of no avail to accused, as one of the deponents admitted time, place and mode of occurrence, while the other deponent was not eye-witness of occurrence---Existence of civil dispute between parties could not be considered a relevant factor for concession of anticipatory bail because it could have been also a motive to motivate accused for commission of alleged offence---Prima facie available data suggested believing that accused had committed a non-bailable offence, thus he was not entitled for extraordinary concession of anticipatory bail---If guilt of accused had been established through reliable evidence or bail granting order was perverse, capricious or whimsical, then it could be reversed at any time and interest of justice also demanded that fair handed treatment should be meted out to prosecution---High Court set aside the order passed by Trial Court granting pre-arrest bail to accused---Bail was cancelled in circumstances.

S. A. M. Qaudri for Applicant.

Abdullah Baloch for Respondent No.2.

Miss Sarwat Hina, Additional Prosecutor-General for the State.

Date of hearing: 12th June, 2013.

2013 P Cr. L J 36

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

MUHAMMAD AZAM and another---Appellants

Versus

KHALID MEHMOOD and another---Respondents

Criminal Appeal No.15 of 2006, decided on 6th April, 2012.

(On appeal from the judgment of the Shariat Court dated 6-3-2006 in Criminal Appeals Nos.71 and 75 of 2006).

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

----S. 302---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-e-amd---Appeal against acquittal---Originally no one was nominated in the F.I.R., during the investigation a number of persons were arrested, but later on they were released---Dying declaration was made by deceased before his mother, but her statement was not in line with her statement recorded under S.161, Cr.P.C. before the Police---Dying declaration, in circumstances, could not be relied upon having not been proved by any cogent and concrete evidence---Complainant had lodged the F.I.R. after getting information about the death of the deceased; he himself was not a witness of the occurrence and was just an informer; and his statement could be stated as hearsay evidence which could not be treated as evidence in the eye of law---Mere abscondance, could not be construed sufficient for convicting an accused---Incident was a dark-night occurrence and one of the prosecution witnesses had stated that there was no source of light available at the roof of the house in question and it was otherwise humanly impossible to identify a person from the said distance---Statements of prosecution witnesses were not free from any doubt and possibility of false implication of accused could not be ruled out---Manner in which recovery of gun had been made, also had created serious doubt---Accused, after acquittal enjoyed double presumption of innocence, until the judgment was found perverse, arbitrary, shocking and fanciful; the courts always were reluctant to interfere with the same---All the prosecution witnesses were inter se close relatives and their statements were not confidence inspiring and truthful which could not be believed---No direct evidence was available on record---Statements of the prosecution witnesses were not consistent to each other; and there were glaring discrepancies which could not be overlooked---Story of the prosecution was highly doubtful and slightest doubt must go to the accused---Prosecution having failed to prove its case beyond reasonable doubt against the accused, he was rightly acquitted---In the absence of any perversity in the judgment passed by the Shariat Court, same could not be interfered with, in circumstances.

Muhammad Ramzan v. The State 1991 MLD 2234; The State v. Mst. Falawat Jan and another 1992 SCR 366; Javaid Azam and 2 others v. Muhammad Saleem and 10 others 1997 PCr.LJ 1865; Akhtar Zaman and another v. Abdul Majeed and another 1999 SCMR 2416; Nasar Iqbal v. State 2000 PCr.LJ 1564; Farmanullah v. Qadeem Khan and another 2001 SCMR 1474 and Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others 2001 PCr.LJ 524 ref.

Arshad Mahmood v. Raja Muhammad Asghar and another 2008 SCR 345; Haji Paio Khan v. Sher Biaz and others 2009 SCMR 803; Shah Muhammad v. Muhammad Zaman and others 2007 SCMR 1263 and The State v. Mst. Falawat Jan and another 1992 SCR 366 rel.

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

----Art. 46---Dying declaration---Scope---Dying declaration could be made before any person; and there was no clog that same could not be made before a private person, but only be relied upon and made basis for the conviction, if it was corroborated with unimpeachable evidence---Dying declaration must be free from every sort of taint and be independently corroborated for making the sole basis of conviction---Oral dying declaration was a weak piece of evidence, which must be corroborated by independent circumstances.

Muhammad Yasin v. The State 1978 SCMR 303; Farman Bi v. Ghulam Farid 1994 SCMR 1852; Abdur Rahim alias Rahima and others v. The State and others PLD 2003 SC 662 and Ilyas v. The State 1998 PCr.LJ 1927 rel.

(c) Criminal trial---

----Abscondence of accused---Effect---Abscondence of an accused was not conclusive by itself to establish his guilt; and its probative value would depend on the facts and circumstances of each particular case, yet same was universally admitted as evidence of guilt of accused.

Khalid Rasheed Chaudhry, Advocate for Appellants.

Raja Inamullah Khan, Advocate for Respondent No.1.

Muzaffar Ali Zafar, Additional Advocate-General for the State.

Date of hearing: 2nd March, 2012.

2013 P Cr. L J 462

[Supreme Court (AJ&K)]

Present Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

MUHAMMAD SADIQ BHATTI---Appellant

Versus

MUHAMMAD ASHFAQ and 2 others---Respondents

Criminal Appeal No.60 of 2008, decided on 7th November, 2012.

(On appeal from the judgment of the Shariat Court dated 25-8-2008 in Criminal Appeals Nos.12 of 2007 and 29 of 2008)

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

----Ss. 302/458/34--- Criminal Procedure Code (V of 1898), S.417(2-A)--- Qatl-e-amd, lurking house-trespass by night, common intention---Appeal against acquittal---F.I.R., though was promptly lodged, but same was proved to have been lodged after due deliberation or consultation as Investigating Officer had stated that he was informed by the complainant about the occurrence, but the name of assailant was not disclosed, which would mean that at the time of information to the Police, the name of assailant was in the mind of the complainant---Complainant had made improvements in his statement recorded in the court---Complainant had come forward with two-fold contradictory picture; one before the Police and other before the court---Occurrence thus had not taken place in the manner as stated by the prosecution---Eye-witnesses were not consistent in their statements---Many people from the locality were stated to have been gathered at the spot, but prosecution had not cited any of the eye-witnesses from the locality---Such aspect of the prosecution had made the story doubtful---Prosecution had tried to make improvements in its case, which had created serious doubt in the story, benefit of which would go to accused---Time of lodging of F.I.R. and the time when the dead-body was sent for post-mortem, was the same which had created a serious doubt about the time of occurrence---Alleged weapon of offence was recovered 14 days after the occurrence; and date of recovery of the weapon was overwritten, which had created serious doubt about the recovery---Recovery memo did not show number of the weapon---Forensic Science Expert had not given any definite opinion, whether the bullet which was allegedly recovered from the spot was fired with the weapon recovered from the accused or not---Shariat Court had rightly disbelieved such recovery---Prosecution had taken a specific motive, but had badly failed to prove the same---Evidence of eye-witnesses was not trustworthy as their statements were contradictory---Prosecution having failed to bring out the guilt of accused, Shariat Court had rightly acquitted accused, in circumstances.

Noor Ahmad and others v. The State 1992 SCR 1 rel.

(b) Criminal trial---

----Motive---Motive though was not necessary for awarding the capital punishment, however, if the case was otherwise proved, and a specific motive had been set up, it was the duty of the prosecution to prove the same beyond any shadow of doubt.

(c) Criminal trial---

----Circumstantial evidence---Circumstantial evidence would mean the evidence afforded by testimony other than the eye-witnesses which bore upon a fact or other subsidiary facts which were relied upon as consistent that no result other than truth of principal fact and facts would be so proved that they would not leave any possibility of innocence of accused---Such possibility would be of such a high degree and standard that a prudent man after considering all facts and circumstances was able to reach at the conclusion that he was justified in holding accused guilty; and from the evidence, no other inference could be drawn, except the guilt of accused---Circumstances from which the inference adverse to accused was sought to be drawn must be proved beyond all doubts.

Munawar Hussain and others v. Imran Waseem and another (Criminal Appeal No.39 of 2010) rel.

(d) Criminal trial---

----Relative as competent witness---Relative could be a competent witness like other witnesses and the testimony of such a witness could not be discarded merely on the ground of relationship, but the evidence of the related witness, must be confidence-inspiring while connecting with other circumstances.

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

----S. 417(2-A)---Appeal against acquittal---Principles---Some very strong reasons must exist for setting aside acquittal order---Person, who had been acquitted, enjoyed double presumption of innocence---Accused was innocent until and unless he was proved guilty; and his acquittal order could not be interfered with until same was proved to be perverse, arbitrary and capricious in nature---No overt act had been attributed to accused; and according to the prosecution story only his presence had been shown at the time of occurrence, whereas, no plausible evidence had been brought on the record to prove the presence of accused---Courts had rightly come to the conclusive that no case was made out against him.

Ch. Muhammad Reaz Alam, Advocate for Appellant.

Abdul Majeed Mallick, Advocate for Respondents Nos.1 and 2.

Raja Ghazanfar Ali, Advocate-General for the State.

Date of hearing: 28th March, 2012.

2013 P Cr. L J 532

[Supreme Court (AJ&K)]

Present Raja Saeed Akram Khan and Sardar Muhammad Sadiq Khan, JJ

MUHAMMAD RIAZ and another---Applicants

Versus

The STATE through Advocate-General Azad Jammu and Kashmir and 2 others---Respondents

Criminal Miscellaneous No.13 of 2010, decided on 11th October, 2012.

(Application for recalling and rescinding the order of this Court dated 11-5-2010, recorded in Criminal Miscellaneous No.1 of 2007).

(a) Azad Jammu and Kashmir Supreme Court Rules, 1978---

----O. XLIII, Rr.1, 3, 5, 6 & O.XLVI---Azad Jammu and Kashmir Supreme Court (Power of Review) Act, 1980, S.2---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42-A & 42-D---Application for review of Supreme Court judgment for rescinding and recalling the order passed in review---Applicants were awarded death sentence by the order of the court of competent jurisdiction; and said order was upheld by the Supreme Court---Review petition by the applicants against the judgment of the Supreme Court was dismissed and mercy petition filed by them before the President was also rejected---Second review application of the applicants also having been rejected, the applicants had filed third application to reopen the review petition and to recall and rescind the same---Validity---Scope of review before the Supreme Court was limited---Re-hearing of a case for the purpose to obtain favourable conclusion, could not be allowed; whereas the third application had been filed while stepping forward from the sphere provided in the Azad Jammu and Kashmir Interim Constitution Act, 1974 and Azad Jammu and Kashmir Supreme Court Rules, 1978 to invoke the inherent powers of the Supreme Court---Findings on the application would be deemed to have assumed the original jurisdiction by the Supreme Court, which was extra-constitutional and barred by the Azad Jammu and Kashmir Supreme Court Rules, 1978---After disposal of the review petition by the Supreme Court, no other cause or application etc. was entertainable.

(b) Administration of justice---

----After filing any cause/petition/appeal etc., before any court the party filing the same was bound to appear and contest their case.

Sardar Rafique Mehmood, Advocate for Applicants.

Raja Ghazanfar Ali, Advocate-General for the State.

Ch. Muhammad Taj, Advocate for Non-Applicants.

Date of hearing: 4th July, 2012.

2013 P Cr. L J 619

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

MUHAMMAD BASHARAT---Appellant

Versus

Syed SAQIB SHAH and 4 others---Respondents

Criminal Appeal No.6 of 2007, decided on 6th October, 2012.

(On appeal from the judgment/order of the Shariat Court dated 28-2-2007 in Criminal Appeals Nos.138 and 174 of 2005)

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

----S. 417(2-A)---Penal Code (XLV of 1860), Ss.302/34, 324, 337 & 341---Azad Jammu and Kashmir Offences Against Property (Enforcement of Hudood) Act, 1985, S.17(2)---Qatl-e-amd, common intention, attempt to commit qatl-e-amd, causing Shajjah, wrongful restraint Haraabah---Appeal against acquittal---Reappraisal of evidence---Originally no one was nominated in the F.I.R. as no one had seen the occurrence, and incident was a blind murder---Evidence relied upon by the prosecution which was based on recovery of hatchet, wrist watch and vest, did not connect accused persons with the crime as those had been recovered after a considerable delay, which had created a serious doubt in prosecution story---Once the case had been set up, the whole responsibility would lie on the prosecution to prove it---Even a slightest doubt was sufficient to acquit an accused, whereas, in the present case a number of doubts were created---No misreading or mis-appreciation of evidence was pointed out warranting the interference by the Supreme Court---Order of acquittal passed by the Trial Court and upheld by the Shariat Court was based on correct appreciation of evidence, which did not warrant interference in appeal---Said order could only be interfered with, if it was found perverse, unreasonable, arbitrary or manifestly wrong, whereas, no such element was available in the case---Complainant had failed to point out any misreading or non-reading of evidence which had not been dealt with by taking into consideration for the two courts below, while passing the impugned judgments---Appeal was dismissed, in circumstances.

(b) Criminal trial---

----Circumstantial evidence---Circumstantial evidence was always considered to be a weak---No rule of law or practice existed to prevent a court from sentencing an accused to death, merely on circumstantial evidence, provided that in a case resting on a circumstantial evidence, no link in the chain should be missing and all the circumstances lead to the guilt of accused---Circumstantial evidence could only form basis for conviction, when it was incompatiable with the innocence of accused, or the guilt of any other person; and in no manner be incapable of explaining upon any reasonable hypothesis, except that of the guilt of accused---Every link in circumstantial evidence, should be proved by cogent evidence; and if not, then no conviction could be maintained; or awarded to an accused.

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

----S. 417(2-A)---Penal Code (XLV of 1860), Ss.302/34, 324, 337 & 341---Azad Jammu and Kashmir Offences Against Property (Enforcement of Hudood) Act, 1985, S.17(2)---Qatl-e-amd, common intention, attempt to commit qatl-e-amd, causing Shajjah, wrongful restraint, Haraabah---Reappraisal of evidence---Recovery of weapon---Recovery of hatchet, which was made on the pointation of one of accused persons, had been effected from a populated area but no independent witness was associated at the time of recovery---Both the recovery witnesses were close relatives of the deceased---Testimony of a related witness, though could not be discarded merely on the basis of relationship, but each case had to be decided on its own merits---Said recovery had not been corroborated by the medical evidence as the Doctor had stated in his statement that such like injury could not be inflicted by the hatchet, which itself had made the recovery doubtful---Said recovery had been effected after 10 days of the alleged incident and no plausible explanation had been brought on the record in that regard---Statements of the recovery witnesses of the stick (Danda) were not in line or consistent to each other; their evidence in that regard could not be made basis for conviction of accused---Medical report showed that four injuries were inflicted with sharp edged weapon and there was no other injury which was caused by some stick (Danda) on the body of the deceased---Statements of recovery witnesses of stick being not believable, had rightly been disbelieved by the both courts below.

Mujahid Hussain v. The State 1985 SCMR 1573 rel.

(d) Criminal trial---

----Benefit of doubt---Benefit of slightest doubt arising in the case, would go in favour of accused.

Kareem Dad v. Zaheer and another 2004 SCR 36; Saghir Ahmed v. Zulfiqar Ahmed and another 2006 SCR 228 and Abdul Khaliq v. State and another 2010 SCR 402 rel.

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

----S. 417(2-A)---Penal Code (XLV of 1860), Ss.302/34, 324, 337 & 341---Azad Jammu and Kashmir Offences Against Property (Enforcement of Hudood) Act, 1985, S.17(2)---Qatl-e-amd, common intention, attempt to commit qatl-e-amd, causing Shajjah, wrongful restraint and Haraabah--- Reappraisal of evidence---Last seen evidence---Witnesses who claimed to have last seen, in the present case, disclosed that fact 16 days after the occurrence---Said witnesses in their statements under S.161, Cr.P.C. admitted that on the day of occurrence, they remained associated with the Investigating Agency, but their statements were recorded after a period of seven days; and they did not disclose that fact immediately after the occurrence, which had created some doubt that why they remained quiet for such a long period---Last seen evidence, was of the weakest type of evidence, which could not be relied upon without strong corroboration.

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

----S. 417(2-A)---Appeal against acquittal---Principles---Accused on acquittal would enjoy the double presumption of innocence---If the Trial Court would acquit an accused, and Shariat Court would maintain said acquittal order, same could not be set aside, except some very strong and compelling grounds were brought on record.

Ghulam Rasood and another v. The State 2011 SCR 324 rel.

(g) Criminal trial---

----Witness, credibility of---Credibility of a witness was to be looked with serious suspicion, if his statement under S.161, Cr.P.C. was recorded with delay without any plausible explanation.

Muhammad Khan v. Maula Baksh and another 1998 SCMR 570 rel.

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

----Ss. 410 & 417(2-A)---Appeal against conviction and appeal against acquittal---Approach for dealing with the appeal against conviction, would be different and should be distinguished from the appeal against acquittal, because presumption of double innocence of accused was attached to the order of acquittal.

Munawar Shah v. Liaquat Hussain and others 2002 SCMR 713 rel.

Ch. Shabir Ahmed, Advocate for Appellant.

Syed Hazoor Imam Kazmi, Advocate for Respondents.

Raja Ghazanfar Ali, Advocate-General for the State.

Date of hearing: 6th June, 2012.

2013 P Cr. L J 987

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

NASIR KALEEM---Appellant

Versus

JUNAID and another---Respondents

Criminal Appeal No.2 of 2012, decided on 10th December, 2012.

(On appeal from the order of the Shariat Court dated 30-11-2011 in Revision Petition No.306 of 2011.)

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

----S. 173---Report of Police Officer---Challan---Interpretation---Term 'challan', in ordinary sense, was used for a report under S.173, Cr.P.C. vice versa, the term 'interim report' as an "incomplete challan"---Term 'challan' did not exist anywhere in the Criminal Procedure Code---Final report of investigation, while the Police was liable to submit in criminal case, was known as 'challan'---For interim report under S.173, Cr.P.C., the term 'incomplete challan' was used.

Rasool Bux v. The State 2003 PCr.LJ 244 rel.

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

----S. 173, proviso [as added by Criminal Law (Amendment) Act (XXV of 1992)]---Report of Police Officer---Forwarding of interim report---Procedure and principles---Investigation could not be completed within a period of 14 days from the date of lodging the F.I.R., under S.154, Cr.P.C., the Incharge Police Station would, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor, an interim report in the prescribed form, stating therein the result of the investigation made, until then, the court would commence the trial on the basis of such interim report; unless, for reasons to be recorded, the court would decide that the trial should not so commence---If the investigation was not completed within the stipulated period i.e. within 14 days, then it was the requirement of law to submit the interim report on the basis of material collected by the Police; after submission of the interim report, if the Police would succeed to collect other material, that could be placed along with final report before the court of competent jurisdiction and on the basis of that, the court could amend/alter the charge, if it had already been framed.

Talib Hussain v. D.I.-G. and others 1996 PCr.LJ 1294 rel.

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

----S. 173---Report of Police Officer---Interim report---Taking cognizance of case on the basis of interim report---Report submitted under S.173, Cr.P.C., was not the opinion of the Police Officer, but it was a documentary evidence---Police was not supposed to adjudicate the guilt or innocence of an accused, nor it was the duty of the Police to decide as to which of the parties was in the wrong---Trial Court had the sole prerogative to form independent opinion after applying its judicial mind and on the basis of the report and other material---Trial could be initiated on the basis of interim report submitted under S.173, Cr.P.C.; and even a charge could be framed---No bar existed for the Trial Court to take cognizance of a case on the basis of interim report---Investigating Officer, on the collection of new evidence, was fully competent to place the same before the court, and the court would consider it as one of the relevant factors while deciding the case---Matter could not be lingered on for an indefinite period on the excuse of final report.

Sharafat Ali and another v. The State 2007 YLR 779; Muhammad Ashraf v. The State PLD 2008 Lah. 578; M.B. Abbasi v. The State PLD 1998 Kar. 230; Hakim Mumtaz Ahmed and another v. The State PLD 2002 SC 590 and Javaid Iqbal v. Additional Inspector-General of Police, Lahore and 4 others PLD 2008 Lah. 488 rel.

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

----Ss. 173 & 167---Report of Police Officer---Procedure when investigation could not be completed in twenty-four hours---Sections 173 & 167, Cr.P.C. provided a mechanism for the Investigating Officer---If the investigation was not completed within the stipulated period, the guidelines had been provided for the Investigating Officer---If an investigation was not completed with the period prescribed under Ss. 173 & 167, Cr.P.C., and if it was not possible to submit the final report, the investigating agency should strictly adhere to the provisions of S.173(1), Cr.P.C. and must submit the interim challan through the Public Prosecutor for trial of accused.

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

----S. 173(1)(b), proviso [as added by Code of Criminal Procedure (Amendment) Act (XXV of 1992)]---Report of Police Officer---Insertion of proviso to S.173(1)(b), Cr.P.C. by Code of Criminal Procedure (Amendment) Act, 1992---Effect---Proviso to S.173(1)(b), Cr.P.C. had been inserted keeping in mind that in most of the cases, the investigation was not completed within the stipulated period for one reason or the other---Term 'interim report' was introduced in S.173, Cr.P.C. so that the court could take cognizance on the basis of the material placed before it---Under the proviso to S.173, Cr.P.C., no unlimited power had been assigned to the Investigating Officer to complete the investigation with his sweet will---Investigating Officer was duty bound to complete the same as soon as possible and place the outcome of the investigation before the Trial Court---If on the sound reasons assigned by the Investigating Officer for not completing the investigation within the stipulated period, provision of the interim report could be invoked and there was no bar for the Trial Court to take the cognizance and commence the trial on the said report---If later on during the investigation, some new facts/evidence would come on record, same would be placed before the court, and the court would take into consideration the same in accordance with law---Contention that cognizance could not be taken by the Trial Court on an interim report, was repelled, in circumstances.

Asghar Ali Malik, Advocate for Appellant.

Sardar Muhammad Habib Zia, Advocate for Respondent No.1.

Ch. Shaukat Aziz, Additional Advocate-General for the State.

Date of hearing: 5th October, 2012.

2013 P Cr. L J 1037

[Supreme Court (AJ&K)]

Present Ch. Muhammad Ibrahim Zia and Sardar Muhammad Sadiq Khan, JJ

FAYYAZ KHAN and another---Appellants

Versus

WASIM KHADIM and 3 others---Respondents

Criminal Appeal No.13 of 2011, decided on 14th December, 2012.

(On appeal from the judgment of the Shariat Court dated 13-4-2011 in Criminal Revision No.170 of 2010.)

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

----S. 561-A--- Quashing of proceedings---Powers of court---Courts i.e., Magistrate, Sessions Court and High Court/Shariat Court could quash any criminal proceedings under the statutory provisions keeping in view the principles laid down therein.

Muhammad Khalid Mukhtar v. The State PLD 1997 SC 275 and Ashiq Ali Bhutto's case 1993 SCMR 523 distinguished.

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

----S. 249-A---Power of Magistrate to acquit accused---Magistrate could acquit an accused at any stage of the case, if after hearing the prosecutor and accused, and for the reasons to be recorded, he considered that the charge was groundless, or there was no probability of accused being convicted.

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

----Ss. 249-A & 265-K---Power of court to acquit accused---Court could acquit an accused at any stage of the case, if after hearing the prosecutor, accused and for the reasons to be recorded court considered that there was no probability of accused being convicted---Magistrate or a court, could acquit accused, but condition precedent was that either the Magistrate or the court would record the reasons while acquitting accused---While exercising powers under S.265-K, Cr.P.C., court while acquitting accused, would hear the prosecutor, accused and take into consideration the overall facts/circumstances and evidence brought on record---If the court, on the basis of evidence brought on record, would come to the conclusion that there was no likelihood of accused being convicted, then court could acquit accused---Court while acquitting accused, would record the reasons.

Qurban Ali Jatoi v. The State and others 2003 YLR 1208 and The State through Advocate-General, Sindh High Court of Karachi v. Raja Abdul Rehman 2005 SCMR 1544 rel.

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

----Ss. 302, 322, 337-V, 451, 109 & 34---Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-e-amd, qatl-bis-sabab, causing fracture of the skull, house-trespass, abetment, common intention, possessing unlicensed arms---Appreciation of evidence---Prosecution had collected sufficient material against accused, but Trial Court did not frame charge under S.242, Cr.P.C. and without recording any reason discharged accused---Two co-accused were infirm persons of 80 and 70 years, they had been implicated in the case merely being parents of the principal accused---Prosecution failed to collect any evidence against said co-accused---Judgments of the Trial Court as well as that of the Shariat Court, were maintained to the extent of both co-accused, and while partially accepting appeal to the extent of principal accused, judgments of both courts below were set aside, in circumstances.

Raja Sajjad Ahmed Khan, Advocate for Appellants.

Barrister Humayun Nawaz, Advocate for Respondents Nos.2 and 3.

Ch. Shoukat Aziz, Additional Advocate-General for the State.

Date of hearing: 4th December, 2012.

2013 P Cr. L J 1076

[Supreme Court (AJ&K)]

Present Ch. Muhammad Ibrahim Zia and Sardar Muhammad Sadiq Khan, JJ

Dr. KARAMAT HUSSAIN---Appellant

Versus

SHAMS-U-DIN and 5 others---Respondents

Criminal Appeal No.58 of 2012, decided on 19th January, 2013.

(On appeal from the judgment of the High Court dated 11-5-2012 passed in Criminal Revision No.1 of 2011.)

Criminal Procedure Code (V of 1898)---

----S. 133---Conditional order for removal of nuisance---Scope---Controversial issue regarding removal of encroachment upon road being sub judice before the civil court, an application was moved by the appellant for initiation of proceedings under S.133, Cr.P.C. before the Deputy Commissioner, with regard to the same subject-matter which was already pending before the civil court---Validity---Magistrate could proceed with any application under S.133, Cr.P.C., but, when the civil court of competent jurisdiction was proceeding with the matter, the Magistrate, or any other judicial office holder, was debarred from entertaining the same cause between the same parties---When the matter was sub judice before the civil court, the Magistrate was not competent, even to pass any conditional order.

Ch. Muhammad Siddique, Advocate for Appellant.

M. Reaz Alam, Advocate for Respondents.

Date of hearing: 20th December, 2012.